Case: 2:12-cv-00636-PCE-NMK Doc #: 1 Filed: 07/17/12 Page: 1 of 21 PAGEID #: 1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

OBAMA FOR AMERICA,

:

DEMOCRATIC NATIONAL

:

COMMITTEE and

:

OHIO DEMOCRATIC PARTY,

:

:

Plaintiffs,

:

v.

:

:

JON HUSTED, in his official capacity :

as Ohio Secretary of State, and

:

MIKE DEWINE, in his official capacity :

as Ohio Attorney General,

:

:

Defendants.

:

:

Case No. 2:12cv00636

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiffs, by their attorneys, file this complaint against Defendants and allege as follows:
Nature of Action 1. Plaintiffs bring this lawsuit to restore in-person early voting for all Ohioans during
the three days prior to Election Day – a right exercised by an estimated 93,000 Ohioans in the last presidential election. Ohio election law, as currently enacted by the State of Ohio and administered by Defendant Ohio Secretary of State, arbitrarily eliminates early voting during the three days prior to Election Day for most Ohio voters, a right previously available to all Ohio voters. This disparate treatment violates 42 U.S.C. § 1983 and the Equal Protection Clause of the Fourteenth
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Amendment to the United States Constitution and can be rectified by the Court enjoining enforcement of statutory changes that eliminate early in-person voting for most Ohioans during the three days before an election. 2. Specifically, taken together, Amended Substitute House Bill Number 194 (“HB 194”), Amended Substitute House Bill Number 224 (“HB 224”) and Substitute Senate Bill Number 295 (“SB 295”), all enacted by the 129th Ohio General Assembly, impose different deadlines for in-person voting prior to Election Day (“early voting”) on similarly situated voters. Prior to the enactment of these laws, there was a single uniform deadline of the Monday before Election Day for inperson early voting. After the enactment of these laws, voters using the Uniformed and Overseas Citizens Absentee Voter Act (“UOCAVA”) may vote early in-person at a board of elections office up through the Monday before Election Day, while non-UOCAVA voters can vote early in-person at a board of elections office (or designated alternate site) only up until 6 p.m. on the Friday before Election Day. 3. The differential treatment of UOCAVA and non-UOCAVA voters with respect to early voting appears to be the result of a confused legislative process initiated by the Ohio General Assembly after citizens of the State commenced the process to subject HB 194 to a referendum. HB 194 was a 300-page bill passed by a Republicandominated legislature that limited voting rights in a number of respects, including by shortening the time period for early voting – an option more likely to be used by groups of voters that tend to support Democratic candidates. While the referendum
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petitions on HB 194 were circulating, the Ohio General Assembly passed HB 224 with “technical corrections” to the early in person voting laws. Then, after Ohio citizens exercised their right to hold a referendum vote on HB 194 by qualifying for the general election ballot, the Ohio General Assembly passed SB 295 to repeal HB 194, but failed to also repeal the corresponding “technical corrections” made by HB 224 in the interim. Whether caused by legislative error or partisan motivation, the result of this legislative process is arbitrary and inequitable treatment of similarlysituated Ohio voters with respect to in-person early voting. 4. The Ohio General Assembly has failed to articulate any justification for this differential treatment of UOCAVA and non-UOCAVA voters, and no justification can be discerned. Indeed, these different deadlines exist despite the fact that, for purposes of in-person early voting, both UOCAVA and non-UOCAVA voters are identically situated, i.e., they are qualified electors who are physically present in their home county when they desire to vote in-person at their county board of elections office prior to Election Day. 5. This inequitable approach to early voting will have a significant impact on voters. Between 2005 and 2011, Ohio successfully administered an early-voting system that included in-person voting in the three days prior to Election Day. This early voting system increased participation among voters, including those for whom work or family obligations make it difficult to vote on Election Day, and reduced the congestion that caused such severe waits during the 2004 presidential election in
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Ohio that some citizens were effectively denied the right to vote. Indeed, as noted above, approximately 93,000 Ohioans voted in the three days prior to the 2008 presidential election. Now, as a result of HB 224 and SB 295, most Ohio voters will not be permitted to vote in the three days prior to Election Day for no apparent reason. Without early voting in these last three days before Election Day, tens of thousands of citizens who would have otherwise exercised their right to vote during this time period, including Plaintiffs’ members and supporters, may not be able to participate in future elections at all. 6. This unequal burden on the fundamental right to vote violates the Equal Protection Clause of the United States Constitution. Plaintiffs have no plain, adequate, or complete remedy at law other than the relief requested in this Complaint. Unless the changes made to Ohio Rev. Code § 3509.03 by HB 224 and SB 295 are enjoined by this Court, Plaintiffs and the voters they represent will be directly and irreparably harmed in upcoming elections. 7. For these reasons and those specifically alleged herein, Plaintiffs seek a declaratory judgment, preliminary injunction, and permanent injunction prohibiting Defendants from implementing or enforcing the HB 224 and SB 295 changes to Ohio Rev. Code § 3509.03, thereby restoring in-person absentee voting on the three days immediately preceding Election Day for all Ohio voters.
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Parties 8. Plaintiff OBAMA FOR AMERICA is the principal campaign committee of
President Barack Obama as he seeks re-election as President of the United States. Nearly 550,000 Ohio citizens voted for President Obama in the March 2012 Democratic Primary. Many of these voters will elect to cast their ballots early for the general election, but will be unable to do so in the three days prior to Election Day as a result of HB 224 and SB 295. Obama for America is headquartered in Chicago, Illinois, and has offices in Ohio and throughout the country. 9. Plaintiff DEMOCRATIC NATIONAL COMMITTEE is an unincorporated association, with its principal place of business in Washington, DC. The Democratic National Committee (“DNC”) is the governing body of the Democratic Party of the United States. The DNC actively supports Democratic candidates in federal, state, and local elections in Ohio and throughout the nation, including by educating and organizing citizens to cast their votes for Democratic Party candidates. 10. Plaintiff OHIO DEMOCRATIC PARTY is a political party organization dedicated to electing candidates of the Democratic Party to public office throughout the State of Ohio. The Ohio Democratic Party has hundreds of thousands of members from across the state, including many eligible voters, who regularly support and vote for candidates affiliated with the Ohio Democratic Party. Many of these registered voters are likely to cast their votes during Ohio’s early vote period.
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11. As a result of the unequal early voting deadlines imposed by HB 224 and SB 295, Plaintiffs will be required to divert resources to voter education and turnout during a crucial time period. The confusion created by these various enactments, a referendum, and then repeal, has left voters uncertain about the state of affairs and possibly discouraged from voting. Plaintiffs will have to conduct significant voter outreach and education programs, which will require the diversion of personnel and financial resources, to explain to supporters that in-person early voting is no longer allowed in the last three days prior to Election Day and to encourage supporters to vote in the time periods available.
12. Many of Plaintiffs’ members and supporters, which include Ohio registered voters, have previously cast their votes during the last three days of Ohio’s early vote period. They will be significantly burdened in their ability to cast their ballots if they are unable to vote during the three days prior to the general election, and some will be unable to do so.
13. Defendant JON HUSTED (“Secretary of State” or “Defendant”) is the Secretary of State of Ohio and is sued in his official capacity. Pursuant to Ohio Rev. Code § 3501.04, the Secretary of State is the chief election official of the State of Ohio, and, as such, is responsible for the administration of state laws affecting voting, and for assuring that elections in the state are conducted in accordance with the law. His principal office is in Columbus, Ohio.
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14. Defendant MIKE DEWINE (“Attorney General” or “Defendant”) is the Attorney General for the State of Ohio. Pursuant to Ohio Rev. Code § 109.02, the Attorney General is the chief law officer of the State and represents the State of Ohio in all legal matters. Jurisdiction and Venue
15. This Court has jurisdiction over the subject matter of this action under 28 U.S.C. §§ 1331, 1343(a)(3), 1343(a)(4), 2201, and 2202, as well as 42 U.S.C. § 1983.
16. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) because a substantial part of the direct and immediate harm faced by Plaintiffs and Plaintiffs’ members and supporters is threatened in this judicial district, and both Defendants have their principal offices in this judicial district. Factual Allegations
A. Early Voting In Ohio 17. Ohio has a history of troubled elections, most notably the 2004 Presidential race. The administration of that election in Ohio earned the State widespread notoriety for its seven plus hour lines to vote, machine shortages and malfunctions, and a wide assortment of other problems that led to the disenfranchisement of thousands of voters. 18. In League of Women Voters of Ohio v. Brunner, 548 F.3d 463 (6th Cir. 2008), the Sixth Circuit detailed the conditions described by the plaintiffs: Voters were forced to wait from two to twelve hours to vote because of inadequate allocation of voting machines. Voting machines were not allocated 7

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proportionately to the voting population, causing more severe wait times in some counties than in others. At least one polling place, voting was not completed until 4:00 a.m. on the day following election day. Long wait times caused some voters to leave their polling places without voting in order to attend school, work, or to family responsibilities or because a physical disability prevented them from standing in line. Poll workers received inadequate training, causing them to provide incorrect instructions and leading to the discounting of votes. In some counties, poll workers misdirected voters to the wrong polling place, forcing them to attempt to vote multiple times and delaying them by up to six hours. Provisional balloting was not utilized properly, causing 22% of provisional ballots cast to be discounted, with the percentage of ballots discounted reaching 39.5% in one county. Disabled voters who required assistance were turned away. Id. at 477-78. 19. In 2005, through Substitute House Bill 234, Ohio enacted universal, also known as
“no fault,” absentee voting, in part to address problems from the 2004 election. The law allows voters to request an absentee ballot without stating a reason. Although it permits voters to cast their ballots by mail, it also provides the option of voting in person at a Board of Elections or other site designated by the Board of Elections prior to Election Day. 20. According to a study by the Ray C. Bliss Institute of Applied Politics at the University of Akron in 2011, the change to no fault absentee voting in Ohio led to a noticeable increase in early voting. See Ray C. Bliss Institute of Applied Politics at University of Akron, A Study of Early Voting in Ohio, located at http://www.uakron.edu/bliss/research/archives/2010/EarlyVotingReport.pdf, at 2. The Institute acquired the following information from the Ohio Secretary of State.
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Early Voting in Ohio, 2006, 2008, and 2010 (plus absentee votes in 2002, 2004)

Year 2002 2004 2006 2008 2010

Number Absentee Voters 229,512 607,636 639,416 1,717,256 1,021,865

% of Registered Voters 3.2% 7.6% 8.1% 20.7% 12.7%

% of Vote Cast 6.8% 10.6% 15.3% 29.7% 25.8%

Id. 21. From 2002 to 2010 the number of early voters (both in person and by mail)

increased from 229,512 to 1,021,865. Id. In 2008, over 490,000 people voted early

in-person. See Testimony of Ellis Jacobs, Senior Attorney at Advocates for Basic

Legal Equality, on March 21, 2012 (citing Data Compiled by Norman Robbins at

Northeast Ohio Voter Advocates, Elections are About Voters, but Legislative

Measure Under Consideration Ignores Voting Preferences). In 2010, 29.6% of the

early votes were cast within one week of Election Day, making it the largest period

of early voting. See A Study of Early Voting in Ohio, supra, at 5.

22. The last three days of early voting have a very high turnout rate. For the Presidential

race in 2008, approximately 93,000 people voted in person during this period.

23. Based on 2010 numbers, the study also found that early voters are: 1) older than

election-day voters; 2) much more likely to be women than election-day voters, and;

3) tend to have lower income than election-day voters. See A Study of Early Voting

in Ohio, supra, at 14-16.

24. In testimony before the Ohio House of Representatives, Eric Marshall of the

Lawyers’ Committee for Civil Rights Under Law explained that early in-person

voting in Ohio has led to the enfranchisement of “people who otherwise might not 9

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vote at all, including those voters that have real difficulty getting to the polls on Election Day due to job or family commitments or transportation problems.” Eric Marshall Testimony (May 10, 2011). Marshall also noted that such “Early voting…provides critical relief to ease congestion and burdens at the polls on Election Day,” which is crucially important in light of Ohio’s “history of long lines and Election Day confusion and break downs.” Id. B. Enactment of HB 194 25. HB 194, an omnibus election law bill, was signed into law by Governor Kasich on July 1, 2011, with an effective date of September 30, 2011. 26. Among the many changes in HB 194 was the attempted removal of the last three days of early voting prior to Election Day. Ohio Rev. Code § 3509.01. The bill also contained other measures limiting voters’ rights. For example, the bill eliminated the requirement that poll workers direct voters to the correct precinct and inform them that their ballots are not counted if they vote at an incorrect location. Ohio Rev. Code § 3505.181. Furthermore, it prohibited boards of elections from mailing absentee voter forms to voters or pay the return postage on such forms. Ohio Rev. Code § 3509.03. 27. While the bill was pending in the General Assembly, testimony was offered against it. For example, Eric Marshall testified that reducing the early vote period will “make it less likely that some Ohio residents will exercise that right” to vote. See Eric Marshall Testimony (May 10, 2011).
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28. Votes in both the House and the Senate split along party lines with Republicans voting in favor and Democrats against the bill.
C. Referendum of HB 194 29. After HB 194 was enacted, Democratic legislators, voting rights advocates, labor unions, and progressive organizations began gathering signatures to put the measure to a referendum pursuant to the Ohio Constitution. Under Article II, Section 1 of the Ohio Constitution, the people of Ohio have the power to “adopt or reject [general assembly laws] at the polls on a referendum vote.” Supporters of the referendum needed 231,150 voters to sign the petition; they were able to amass over 300,000 signatures from the citizens of Ohio. In addition, they were required to collect signatures from at least 44 of Ohio’s 88 counties, and within each of those counties collect signatures equal to three percent of the total vote cast for governor in the 2010 gubernatorial election; they were able to meet or exceed the three percent threshold in 64 counties. See http://www.sos.state.oh.us/mediaCenter/2011/201112-09.aspx. 30. On December 9, 2011, the Secretary of State certified the referendum. As a result, HB 194 would not be effective until a majority of the electors approve it. The referendum is expected to be on the ballot in November 2012.
D. Enactment of HB 224 31. In the interim period while signatures on the referendum were being gathered, yet another election law bill was passed: HB 224, which was signed by Governor
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Kasich on July 27, 2011.1 Although the bill focused primarily on easing burdens for absent military and overseas voters subject to UOCAVA, another purpose of the bill was “to make technical corrections to the laws governing elections.” See HB 224. 32. Technical corrections were necessary because, as a result of legislative oversight in HB 194, two sections of the Revised Code dealing with the deadline for in-person early voting for non-UOCAVA voters were inconsistent with each other. HB 194 had added totally new language to Ohio Rev. Code § 3509.01 ending the in-person early voting period for non-UOCAVA voters on the Friday before the election at 6 p.m, even though the existing deadline was contained in a different section of the Revised Code. The General Assembly did not change the language in Ohio Rev. Code § 3509.03; that provision set the end time for in-person early voting by nonUOCAVA voters at close of business the day before an election. HB 224 included technical amendments to Ohio Rev. Code § 3509.03 to bring this provision of the Code in line with HB 194, i.e., it moved the deadline to Friday at 6 p.m. 33. HB 224 also included technical corrections related to the deadline for early in person voting by UOCAVA voters. HB 194 had apparently sought to change the in-person early voting deadline for UOCAVA voters to also be the Friday before the election by amending Ohio Rev. Code § 3511.10. However, it did not amend Ohio Rev.

1

Despite the fact that HB 224 imposed similar restrictions on early voting as those

contained in HB 194, HB 224 was not subject to referendum because it was enacted as an

emergency bill and thus was exempt under Article II, Section 1(d) of the Ohio Constitution.

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Code § 3511.02, which permitted in-person early voting by UOCAVA voters through the day before the election. In HB 224, the Ohio General Assembly included a technical correction to Ohio Rev. Code § 3511.02 to also shorten the deadline for UOCAVA voters to the Friday before the election. E. Enactment of SB 295 to Repeal HB 194 34. In January 2012, after the passage of HB 224 and the certification of the referendum petition on HB 194, the Secretary of State and Republican members of the General Assembly announced a plan to repeal HB 194 while it was awaiting a referendum by the people. Senate President Tom Niehaus informed the public that the Senate planned to repeal the bill and then replace it with a new bill that would include many of the same provisions and restrictions. See Sen. Neihaus Statement on Repeal of Election Reform Bill (Feb. 9, 2012), available at http://www.ohiochannel.org/MediaLibrary/Media.aspx?fileId=134410 (last visited July 12, 2012); Joe Guillen, Ohio Senate Republicans plan to repeal controversial elections law, Cleveland Plain Dealer (Feb. 9, 2012), available at http://www.cleveland.com/open/index.ssf/2012/02/ohio_senate_republicans_plan_t. html (last visited July 12, 2012). The repeal bill, SB 295, unprecedented in Ohio history, was passed by the General Assembly on May 8, 2012 and signed by the Governor on May 15, 2012. 35. Although SB 295 effectively repealed the changes made to the in-person early voting deadlines by HB 194 by eliminating the new more restrictive language in Ohio Rev.
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Code § 3509.01, it did not repeal the conforming changes made by HB 224 to Ohio Rev. Code §§ 3509.03 and 3511.02. As a result, following the passage of HB 224 and SB 295, one in-person early voting deadline exists for non-UOCAVA voters: 6 p.m. on the Friday before an election. Ohio Rev. Code § 3509.03 (as amended by HB 224). But two in-person early voting deadlines exist for UOCAVA voters: 6 p.m. on the Friday before an election, Ohio Rev. Code § 3511.02 (as amended by HB 224) and the close of the polls on Election Day, Ohio Rev. Code § 3511.10 (following the repeal of HB 194 by SB 295). The Ohio General Assembly has not articulated any justification for the differential treatment of these two groups of voters who are identically situated with respect to early in-person voting. Nor has the General Assembly addressed the conflicting deadlines for UOCAVA voters. F. Secretary of State’s Advisory 36. Even before the passage of SB 295, however, it was clear that there would be conflicting deadlines for in-person early voting if the referendum petition on HB 194 was successful (and the effective date of HB 194 was suspended as a result). On October 14, 2011, the Secretary of State issued Advisory 2011-07 to the County Boards of Elections, in part to address conflicting early voting deadlines. According to the Advisory: “In-person absentee voting ends at 6 p.m. the Friday before the election for non-uniformed military and overseas voters. Ohio Rev. Code 3509.03.” The Advisory provided a different end time for UOCAVA voters. It noted that those “voters may vote in-person absentee until the close of the polls on the day of the
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general or primary election. They must vote at the board of elections office between 6 p.m. the Friday before the election and the close of the polls on the day of the election. Ohio Rev. Code 3511.10.” In essence, the Secretary of State appropriately resolved the conflict between the two in-person early voting deadlines for UOCAVA voters in favor of the more generous time period.2 37. On October 25, 2011, the Secretary of State sent a letter to the Director and Deputy Director of the Montgomery County Board of Elections in response to a tie vote at that Board as to whether to extend its regular business hours to permit nonUOCAVA in-person absentee voting on the Saturday through the Monday prior to the November election. The Secretary of State broke the tie against the motion to permit in-person absentee voting for non-UOCAVA voters during this time period. 38. The Secretary of State denied a similar motion on October 27, 2011, for the Darke County Board of Elections. In both instances he cited to Ohio Rev. Code § 3509.03 as prohibiting him from authorizing voting during this window of time for nonUOCAVA voters. 39. Following the Secretary of State’s Advisory, protests ensued at a number of county boards of elections. Democratic lawmakers also contacted the Secretary of State, asking him to reinstate in-person early voting at county Boards of Elections through the Monday before the election. The Secretary of State refused these requests. See

2

Because the referendum on HB 194 and the repeal of 194 by SB 295 have the same

practical effect, the Advisory remains in effect.

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Press Release, House Democratic Caucus Communications, Dem Lawmakers Tell Secretary Husted Don’t Cut Off Early Voting (Oct. 15, 2011), available at http://www.rotundacollection.com/ShowDocument.aspx?PressReleaseID=68.1 40. The concern about having two classes of voters with different access to the polls was raised several times through legislative testimony. For example, Carrie L. Davis, Executive Director of the League of Women Voters of Ohio, brought it to the General Assembly’s attention in her legislative testimony on March 21, 2012. Davis explained the history of HB 194 and HB 224 and the confusion that resulted from the conflicting provisions. She warned the General Assembly, “Passing a straight repeal of provisions that were only in HB 194 without addressing the ‘technical changes’ made in HB 224 continues the inconsistency problem, wherein sections of the voting law conflict with one another.” The General Assembly did not address these issues. 41. Also, in both the Senate and House, Democrat-sponsored amendments to return voting to the status quo – as it existed prior to HB 194 – which would extend early voting through the three days prior to Election Day for all eligible Ohio voters. These amendments were voted down by the Republican-controlled majority in both chambers. 42. As a result of the confused state of the Ohio election law on early voting, Plaintiffs will be forced to spend considerable resources educating their members and supporters about the early voting deadlines and encouraging them to vote.
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43. Because so many Ohioans rely on the early vote period, specifically the last three days before an election, to cast their ballot, and are unable to wait on the long lines that have historically plagued federal elections in Ohio, they will be unable to vote, unless an injunction issues against the amendments to Ohio Rev. Code § 3509.03 made by HB 224 and SB 295 that eliminate early voting during the three days prior to Election Day. See Testimony of Eric Marshall, Manager of Legal Mobilization, Lawyers’ Committee for Civil Rights Under Law, on May 10, 2011. CAUSE OF ACTION (Violation of 42 U.S.C. § 1983 and the Fourteenth Amendment)
44. Plaintiffs reallege each allegation contained in each of the paragraphs above as if fully set forth herein.
45. The Constitution of the United States protects the right of all qualified citizens to vote in elections for federal office. The right to vote, one of the most important rights in our democratic society, is fundamental. It is protected by Articles I and II of the Constitution, the First and Fourteenth Amendments, and numerous federal statutes.
46. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution guarantees qualified voters a substantive right to participate equally with other qualified voters in the electoral process. This equal right to vote is protected in more than the initial allocation of the franchise; equal protection applies to the manner of its exercise as well. See Hunter v. Hamilton County Bd. of Elections, 635 F.3d 219, 234 (6th Cir. 2011) (quoting Bush v. Gore, 531 U.S. 98, 17

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104 (2000)). A state may not arbitrarily impose disparate treatment on similarly situated voters. 47. Thus, once the State of Ohio decides to provide voters with the right to vote early, it cannot arbitrarily grant that right to some voters and not others. 48. The passage of HB 224 and SB 295 created different in-person early voting deadlines for two groups of voters: UOCAVA voters may vote early up to the close of polls on Election Day, but non-UOCAVA voters may only vote early up to 6 p.m. on the Friday before Election Day. This disparate treatment of UOCAVA and nonUOCAVA voters is arbitrary: The Ohio General Assembly has not and cannot articulate any legitimate justification for the different deadlines. Both groups of voters are similarly situated: they are qualified electors physically present in their home county who must appear in person at the offices of the board of election in order to vote early. 49. Ohio has successfully administered early voting for five years, and there is no indication that the last three days of early voting caused any problems in election administration or voter fraud. To the contrary, the enactment of no fault absentee voting and this early vote window, particularly the three days prior to an election, has ameliorated many problems Ohio previously faced, such as unacceptably long voting lines on Election Day. 50. At best, the disparity is simply the inadvertent result of legislative confusion that left in place two different deadlines for UOCAVA and non-UOCAVA voters, and even
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two deadlines for UOCAVA voters. At worst, the differential treatment has been influenced by partisan politics. Neither scenario presents a legitimate justification for the disparate treatment. 51. Even if the Ohio General Assembly could articulate a legitimate justification for the disparate treatment, any such reason would not outweigh the burden placed on most, but not all, Ohio voters who have been denied the right to vote in the three days prior to an election. 52. Thousands of Ohio voters, including Plaintiffs’ members and supporters, will suffer direct and irreparable injury from this differential treatment. These voters may effectively lose the opportunity to vote if they do not have the ability to do so in the three days prior to the election, a time period when turnout has been particularly heavy in the past. 53. By reason of the foregoing, Defendants, acting under color of state law, have deprived and will continue to deprive Plaintiffs of equal protection under the law secured to them by the Fourteenth Amendment to the United States Constitution and protected by 42 U.S.C. § 1983.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs request of this Court the following equitable relief:
A. An order declaring that lines 863 and 864 of Sec. 3509.03(I) in HB 224, which amended Ohio Revised Code § 3509.03 by changing the deadline for in-person early voting from the close of business on the day before Election
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Day to 6 p.m. on the Friday before Election Day, and the SB 295 enactment of Ohio Revised Code § 3509.03 with the HB 224 amendments, violate the Equal Protection Clause of the United States Constitution; B. A preliminary and permanent order prohibiting the Defendants, their respective agents, servants, employees, attorneys, successors, and all persons acting in concert with each or any of them, from implementing or enforcing lines 863 and 864 of Sec. 3509.03 (I) in HB 224, and/or the SB 295 enactment of Ohio Revised Code § 3509.03 with the HB 224 amendments, thereby restoring in-person early voting on the three days immediately preceding Election Day for all eligible Ohio voters; C. Attorney fees and costs; D. Such other and further relief as this Court may deem necessary or proper.
Respectfully submitted, /s/ DONALD J. McTIGUE ______________________________ Donald J. McTigue (0022849) Trial Counsel Mark A. McGinnis (0076275) J. Corey Colombo (0072398) McTigue & McGinnis LLC 545 East Town Street Columbus, Ohio 43215 Tel: (614) 263-7000 Fax: (614) 263-7078 dmctigue@electionlawgroup.com mmcginnis@electionlawgroup.com ccolombo@electionlawgroup.com
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Attorneys for Plaintiffs Robert F. Bauer* Perkins Coie 700 Thirteenth Street, Suite 600 Washington DC 20005 Tele: 202-434-1602 Fax: 202-654-9104 RBauer@perkinscoie.com General Counsel for Plaintiffs Obama for America and the Democratic National Committee Jennifer Katzman* Obama for America 130 East Randolph Chicago, IL 60601 Tele: 312-985-1645 jkatzman@barackobama.com National Voter Protection Counsel for Plaintiff Obama for America
* Motions for Admission Pro Hac Vice forthcoming
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

OBAMA FOR AMERICA;

:

DEMOCRATIC NATIONAL

:

COMMITTEE; and

:

OHIO DEMOCRATIC PARTY

:

:

Plaintiffs,

:

v.

:

:

JON HUSTED, in his official capacity :

as Ohio Secretary of State and

:

MIKE DEWINE, in his official capacity :

:

as Ohio Attorney General

:

:

Defendants.

:

Case No. 2:12cv00636 Judge Peter C. Economus Magistrate Judge Norah McCann King
PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AND MEMORANDUM OF LAW IN SUPPORT

MOTION FOR PRELIMINARY INJUNCTION Plaintiffs Obama for America, the Democratic National Committee, and the Ohio Democratic Party hereby move this Court for a preliminary injunction to prevent the State Defendants from arbitrarily denying tens of thousands of Ohio voters the right to cast their votes in the three days prior to Election Day – a critical right that was granted to all qualified Ohio voters in 2005, used by an estimated 93,000 Ohio voters in the 2008 presidential election, and inequitably taken away from most, but not all, Ohio voters without justification in the last year. As demonstrated below, and in the supporting Memorandum of Law, Plaintiffs are very likely to succeed on their claims that recent legislative changes to Ohio election law violate the Equal Protection Clause of the United States Constitution; Plaintiffs’ members and supporters – Democratic voters who may not be able to vote if the right to vote early in person in the three days prior to Election Day is taken away – will be irreparably harmed if an injunction does not
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issue; the balance of hardships tips in Plaintiffs’ favor; and a preliminary injunction restoring early voting in the three days prior to Election Day for all eligible Ohio citizens would be in the public interest.
As a result of a confused series of statutory maneuvers and “technical corrections” in the last year, Ohio election law now treats similarly situated Ohio voters differently with respect to the deadline for in-person early voting. Following the passage of Amended Substitute House Bill 224 (“HB 224”) and Substitute Senate Bill 295 (“SB 295”), voters using the Uniformed and Overseas Citizens Absentee Voter Act (“UOCAVA”) are entitled to vote early up until the close of the polls on Election Day, pursuant to Ohio Rev. Code § 3511.10; non-UOCAVA voters, however, face a more restrictive deadline: 6 p.m. on the Friday before an election, pursuant to Ohio Rev. Code § 3509.03. This disparate treatment, which results in a significant burden on the fundamental right to vote for non-UOCAVA voters, is entirely arbitrary. The Ohio General Assembly failed to articulate any justification for this disparate treatment in the legislative record – an extraordinary omission given that the disparity was brought to the Assembly’s attention through testimony. Moreover, no legitimate justification can be discerned. The three-day difference for in-person early voting is unrelated to voter qualifications. Furthermore, even if there were an asserted justification, the relevant provisions must fall: They burden the fundamental right to vote but are not necessary to any sufficiently weighty state interest. Finally, to the extent the disparity was motivated by a bare desire to obtain partisan advantage in the election contest, that motivation cannot justify the disparate treatment. Nor can a simple drafting error. In sum, Plaintiffs are likely to succeed on their claim that amendments made to Ohio Rev. Code § 3509.03 by HB 224 and SB 295, which eliminate the last three days of early voting prior
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to Election Day for non-UOCAVA voters only, violate 42 U.S.C. § 1983 and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
Moreover, thousands of Ohio voters, including many of Plaintiffs’ members and supporters, will be irreparably harmed if a preliminary injunction does not issue. It is well settled that an abridgement or dilution of the right to vote constitutes irreparable harm. Here, the withdrawal from most, but not all, Ohio voters of the right to cast a ballot in the three days prior to Election Day places a significant burden on the right to vote. This burden, once imposed, can never be undone. Indeed, early voting – particularly in the three days prior to Election Day when early voting turnout is heavy – is critical to ensuring that voters are not disenfranchised by the long delays that plagued the 2004 presidential election.
In contrast, the State cannot demonstrate any hardship at all. Any administrative issues would be minimal; Ohio has successfully administered early in-person voting in the three days prior to Election Day for five years. Indeed, the absence of early voting in the three days prior to Election Day for most Ohio voters is likely to increase the administrative burden on the Ohio election system given the overcrowding that occurred in the 2004 presidential election before the early voting system was put in place. To the extent there is any administrative inconvenience from the relief requested herein, it is far outweighed by the infringement of voters’ constitutional rights. Finally, it is well settled that protecting constitutional rights, as a preliminary injunction here would do, is always in the public interest.
In light of the foregoing and as set forth in the Proposed Order submitted herewith, Plaintiffs seek a preliminary injunction that would prohibit the Defendants from implementing or enforcing the HB 224 amendments to Ohio Rev. Code § 3509.03, specifically lines 863 and 864 of § 3509.03 (I) in HB 224, as well as the enactment of Ohio Rev. Code § 3509.03 with the HB
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224 amendments by SB 295, thereby restoring in-person early voting on the three days
immediately preceding Election Day for all eligible Ohio voters.
Respectfully submitted,
/s/ DONALD J. McTIGUE ________________________ Donald J. McTigue (0022849) Trial Counsel Mark A. McGinnis (0076275) J. Corey Colombo (0072398) McTigue & McGinnis LLC 545 East Town Street Columbus, Ohio 43215 Tel: (614) 263-7000 Fax: (614) 263-7078 dmctigue@electionlawgroup.com mmcginnis@electionlawgroup.com ccolombo@electionlawgroup.com
Attorneys for Plaintiffs
Robert F. Bauer* Perkins Coie 700 Thirteenth Street, Suite 600 Washington DC 20005 Tele: 202-434-1602 Fax: 202-654-9104 RBauer@perkinscoie.com
General Counsel for Plaintiffs Obama for America and the Democratic National Committee
Jennifer Katzman* Obama for America 130 East Randolph Chicago, IL 60601 Tele: 312-985-1645 jkatzman@barackobama.com
National Voter Protection Counsel for Plaintiff Obama for America
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MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION
SUMMARY TABLE OF CONTENTS

I. INTRODUCTION

1

II. BACKGROUND

1

A. Amended Substitute House Bill Number 194

3

B. Amended Substitute House Bill Number 224

4

C. Substitute Senate Bill Number 295

5

D. Secretary of State’s Advisory

6

E. Summary of Legislative Changes

8

III. ARGUMENT

9

A. PLAINTIFFS ARE ENTITLED TO A PRELIMINARY INJUNCTION 9

1. Plaintiffs Are Likely to Succeed on the Merits of Their Claim that Ohio’s Arbitrary and Disparate Treatment of Voters, and The burden on the Fundamental Right to vote, Violate the Equal Protection Clause. 10

a. Ohio’s elimination of the last three days of early in-person voting for most,

but not all, Ohio voters constitutes arbitrary and disparate treatment that

violates the Equal Protection Clause.

10

b. Ohio’s elimination of the last three days of early in-person voting also

violates the Equal Protection Clause because it burdens the fundamental right

to vote for most, but not all, voters without a sufficiently weighty

justification.

14

2. The Balance Of Hardships Tips Sharply In Favor Of Granting A

Preliminary Injunction

17

a. Absent a preliminary injunction, Ohio’s arbitrary and unequal system for early in-person voting will irreparably harm thousands of voters in the upcoming elections, including Plaintiffs’ members and supporters 17

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b. The harm to Defendants from issuance of an injunction will be non-existent

or negligible

18

3. A Preliminary Injunction Would Be In The Public Interest

19

IV. THIS COURT SHOULD ENJOIN DEFENDANTS FROM IMPLEMENTING

AND ENFORCING LINES 863 AND 864 OF SEC. 3509.03 (I) IN HB 224, AS

WELL AS THE SB 295 ENACTMENT OF OHIO REV. CODE § 3509.03 WITH

THE HB 224 AMENDMENTS, AND SHOULD THEREBY RESTORE IN-

PERSON EARLY VOTING ON THE THREE DAYS IMMEDIATELY

PRECEDING ELECTION DAY FOR ALL ELIGIBLE OHIO VOTERS

20

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TABLE OF AUTHORITIES

CASES

Page(s)

Am. Civil Liberties Union v. McCreary Cnty., 354 F.3d 438 (6th Cir. 2003) ...................................................................................................20

Anderson v. Celebrezze, 460 U.S. 780 (1983).................................................................................................................15

Burdick v. Takushi 504 U.S. 428 (1992)...........................................................................................................10, 15

Bush v. Gore 531 U.S. 98 (2000 ....................................................................................................................11

Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 895 (2010) ......................................................................................................12

Connection Distrib. Co. v. Reno, 154 F.3d 281 (6th Cir. 1998) .....................................................................................................9

Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 (2008) (plurality opinion) .......................................................................... passim

Dillard v. Crenshaw Cnty., 640 F. Supp. 1347 (M.D. Ala. 1986) ............................................................................................18

Dunn v. Blumstein, 405 U.S. 330 (1972).................................................................................................................11

Déjà Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn., 274 F.3d 377 (6th Cir. 2001) .......................................................................................10, 18, 19

Harper v. Va. St. Bd. of Elections, 383 U.S. 663 (1966).................................................................................................................10

Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219 (6th Cir. 2011) ...................................................................................9, 11, 14, 19

Johnson v. Halifax Cnty., 594 F. Supp. 161 (E.D. N.C. 1984)..........................................................................................19

League of Women Voters of Ohio v. Brunner, 548 F.3d 463 (6th Cir. 2008) ........................................................................................... passim

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Mayhew v. Cohen, 604 F. Supp. 850 (E.D. Pa. 1984) ............................................................................................20
Miller v. Blackwell, 348 F. Supp. 2d 916 (S.D. Ohio 2004) ....................................................................................18
NAACP State Conference v. Cortes, 591 F. Supp. 2d 757 (E.D. Pa. 2008) .......................................................................................16
NAACP-Greensboro Branch v. Guilford Cntty. Bd. of Elections, No. 1:12CV111, 2012 U.S. Dist. LEXIS 34353 (M.D.N.C. March 14, 2012)........................19
O’Brien v. Skinner, 414 U.S. 524 (1974)...........................................................................................................11, 14
Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566 (6th Cir. 2002) ...................................................................................................17
Perry v. Judd, No. 3:11-CV-856, 2012 U.S. Dist. LEXIS 4290 (E.D. Va. Jan. 13, 2012) .............................20
Reynolds v. Sims, 377 U.S. 533 (1964)...........................................................................................................11, 17
Spencer v. Blackwell, 347 F. Supp. 2d 528 (S.D. Ohio 2004) ..............................................................................18, 19
Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 882 (9th Cir. 2003) .............................................................................................17, 20
United States v. Berks Cnty., Pa., 250 F. Supp. 2d 525 (E.D. Pa. 2003) .......................................................................................19
Wesberry v. Sanders, 376 U.S. 1 (1964).....................................................................................................................10
Williams v. Salerno, 792 F.2d 323 (2d Cir. 1986).....................................................................................................17
Winter v. Natural Res. Def. Council, 55 U.S. 7 (2008).........................................................................................................................9
STATUTES
Ohio Rev. Code § 3505.181.............................................................................................................3
Ohio Rev. Code § 3509.01.......................................................................................................3, 4, 6

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Ohio Rev. Code § 3509.03..................................................................................................... passim Ohio Rev. Code § 3511.02.....................................................................................................5, 6, 13 Ohio Rev. Code § 3511.01...............................................................................................................4 Ohio Rev. Code § 3511.10.................................................................................................5, 6, 7, 13 Pub. L. No. 99-410, 100 Stat. 924 (1986)........................................................................................4 OTHER AUTHORITIES Sen. Niehaus Statement on Repeal of Election Reform Bill (Feb. 9, 2012), available at
http://www.ohiochannel.org/MediaLibrary/Media.aspx?fileId=134410...................................5 United States Constitution, Fourteenth Amendment .....................................................2, 10, 14, 19

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Ι. INTRODUCTION Ohio has considerable discretion in how to set up its voting process, but it cannot
arbitrarily treat similarly situated voters differently. Between 2005 and 2011, Ohio granted all eligible voters the right to vote early, up until 6 p.m. on the Monday before Election Day. This early voting system, which was successfully administered for five years and ameliorated the significant delays that occurred in the 2004 presidential election, resulted in increased voter participation, including among those for whom it is a hardship to vote on Election Day because of work or family obligations. Indeed, 93,000 Ohio citizens voted in the last three days before the 2008 presidential election.
In the last year, however, through a confused series of statutory maneuvers and “technical corrections,” a Republican-dominated General Assembly shortened the early voting period for some, but not all voters, by taking away most voters’ opportunity to vote early in person in the three days prior to Election Day. This disparate treatment is entirely arbitrary. Even if there were a legitimate justification for the disparity, the State has not articulated, and cannot articulate a sufficient basis to outweigh the infringement on Ohio voters’ constitutional rights. Because this unequal abridgment of the fundamental right to vote will cause irreparable harm to the affected voters, and the public interest favors protecting constitutional rights, a preliminary injunction should issue against the offending statutory provisions.
ΙΙ. BACKGROUND Ohio has a history of troubled elections. The 2004 Presidential election earned the State
widespread notoriety for its seven-hour lines to vote, machine shortages and malfunctions, and a 1

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wide assortment of other problems that led to the disenfranchisement of thousands of voters. See Declaration of Donald J. McTigue (“McTigue Decl.”), Ex. 1 (American Civil Liberties Union of Ohio Testimony (May 10, 2011) (noting that legislative changes were made to address the long lines from 2004). As recounted by the Sixth Circuit in League of Women Voters of Ohio v. Brunner, 548 F.3d 463 (6th Cir. 2008), it was alleged that:
Voters were forced to wait from two to twelve hours to vote because of inadequate allocation of voting machines. . . . [In] at least one polling place, voting was not completed until 4:00 a.m. on the day following election day. Long wait times caused some voters to leave their polling places without voting in order to attend school, work, or to family responsibilities or because a physical disability prevented them from standing in line. . . . If true, these allegations could establish that Ohio’s voting system deprives its citizens of the right to vote or severely burdens the exercise of that right depending on where they live in violation of the Equal Protection Clause. Id. at 477-78. To address problems arising from the 2004 election, Ohio established no-fault absentee voting. See Substitute House Bill 234, 126th General Assembly (October 19, 2005). The law allows voters to request an absentee ballot without stating a reason. Id. Although voters are permitted to cast their ballots by mail, they also have the option of voting in person at a Board of Elections office or other site designated by the Board of Elections prior to Election Day. Id. In subsequent elections, early voting increased significantly and a large number of voters took advantage of the option to cast their absentee ballots in person at the office of, or a site designated by, a county Board of Elections. See McTigue Decl., Ex. 2 at 2 (Ray C. Bliss Institute of Applied Politics at University of Akron, A Study of Early Voting in Ohio). Of the many people who voted early in person, a significant percentage of those did so within one week of Election Day, making it the largest period of early voting. Id. Indeed, an estimated 93,000 Ohioans voted in the three days prior to the 2008 presidential election. See McTigue Decl., Ex. 3
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(Data Compiled by Norman Robbins at Northeast Voter Advocates, Elections are About Voters, but Legislative Measure Under Consideration Ignores Voting Preferences). Those who voted early were more likely to be women, older and lower income than election-day voters – groups that tend to favor Democratic candidates. See McTigue Decl., Ex. 3 at 2, 14-16.
A. Amended Substitute House Bill Number 194 Notwithstanding the great success of early voting in Ohio, in July 2011, Governor Kasich
signed into law Amended Substitute House Bill Number 194 (“HB 194”), an omnibus election law bill. HB 194, 129th General Assembly (June 29, 2011). Among other things, HB 194 eliminated the last three days of early voting. Ohio Rev. Code § 3509.01 (later amended).1 Votes in both the House and the Senate split along party lines, with Republicans voting in favor of the bill and Democrats against it.
Immediately after HB 194 was enacted, a broad coalition of legislators, voting rights advocates, and organizations began gathering signatures to put the measure to a referendum. See McTigue Decl., Ex. 4 (Terri L. Enns, Thoughts on HB 194 and Ohio's Referendum Process, (April 3, 2012), available at http://moritzlaw.osu.edu/electionlaw/comments/index.php?ID=9075 (last visited July 14, 2012)). Under Article II, Section 1 of the Ohio Constitution, the people of Ohio have the power to “adopt or reject [general assembly laws] at the polls on a referendum vote.” The referendum drive was more than successful: Supporters needed 231,150 voters to sign the petition, but they were able to amass over 300,000 signatures. See McTigue Decl., Ex. 5 (Press Release, Secretary of State Husted Certifies HB 194 Referendum Petition Signatures,

1

The bill, which had an effective date of September 30, 2011, also contained other measures

limiting voters’ rights. For example, the bill eliminated the requirement that poll workers direct voters to

the correct precinct and inform them that their ballots are not counted if they vote at an incorrect location.

Ohio Rev. Code § 3505.181 (later amended). Furthermore, it prohibited boards of elections from mailing

absentee voter forms to voters or paying the return postage on such forms. Ohio Rev. Code § 3509.03

(later amended).

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dated December 9, 2011). In addition, they were required to collect signatures from at least forty-four of Ohio’s eighty-eight counties, and within each of those counties to collect signatures equal to three percent of the total vote cast for governor in the 2010 gubernatorial election; and yet they were able to meet or exceed the three percent threshold in 64 counties. Id. On December 9, 2011, the Secretary of State certified the referendum. Id. As a result, HB 194 does not become effective unless a majority of the electors approve it. Ohio Const., art. II, § 1. The referendum is expected to be on the ballot in November 2012.
B. Amended Substitute House Bill Number 224 In the interim period while signatures on the referendum were being gathered, yet another
election law bill was passed: Amended Substitute House Bill Number 224 (“HB 224”) was signed by Governor Kasich on July 27, 2011. HB 224, 129th General Assembly (July 13, 2011). Although the bill focused primarily on easing the burdens on absent military and overseas voters subject to the Uniformed and Overseas Absentee Voting Act (“UOCAVA”)2, another purpose of HB 224 was “to make technical corrections to the laws governing elections.” Id.
Technical corrections were necessary because, as a result of legislative oversight in HB 194, two sections of the Ohio Revised Code dealing with the deadline for in-person early voting for non-UOCAVA voters were inconsistent with each other. Compare Ohio Rev. Code § 3509.01 (later amended) with Ohio Rev. Code § 3509.03. HB 194 had added language to Ohio

2

This federal statute requires states to ensure that members of the military and citizens living

overseas have the right to vote absentee in federal elections, Pub. L. No. 99-410, 100 Stat. 924 (1986)

(codified in scattered sections of 18 U.S.C., 39 U.S.C., and 42 U.S.C.). According to Ohio Rev. Code §

3511.01, uniformed services voters includes: active and reserve members of the army, navy, air force,

marine corps, and coast guard; members of the merchant marine, commissioned corps of public health

service, commissioned corps of the national oceanic and atmospheric administration, national guard, and

organized militia; and the spouses or dependents of any of the above. This category includes people who

may reside in Ohio year round.

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Rev. Code § 3509.01 ending the in-person early voting period for non-UOCAVA voters on the

Friday before the election at 6 p.m. HB 194, 129th General Assembly (June 29, 2011).

However, the General Assembly did not change the language in another provision, Ohio Rev.

Code § 3509.03; that provision set the end time for in-person early voting at close of business the

day before an election. HB 224 included technical amendments to Ohio Rev. Code § 3509.03 to

bring this provision of the Code in line with HB 194, i.e., it moved the deadline to Friday at 6

p.m. See HB 224, 129th General Assembly (July 13, 2011).

HB 224 also included technical corrections related to the deadline for early in-person

voting by UOCAVA voters. Id. HB 194 had apparently sought to change the in-person early

voting deadline for UOCAVA voters to be the Friday before the election as well, by amending

Ohio Rev. Code § 3511.10. However, it did not amend Ohio Rev. Code § 3511.02, which

permitted in-person early voting by UOCAVA voters through the day before the election. In HB

224, the Ohio General Assembly included a technical correction to Ohio Rev. Code § 3511.02 to also shorten the deadline for UOCAVA voters to the Friday before the election.3 Id.

C. Substitute Senate Bill Number 295

In January 2012, the Secretary of State and Republican Members of the General

Assembly announced a plan to repeal HB 194 while it was awaiting a referendum by the people,

an unprecedented action in Ohio. Senate President Tom Niehaus informed the public that the

Senate planned to repeal the bill and then replace it with a new bill that would include many of

the same provisions and restrictions. See Sen. Niehaus Statement on Repeal of Election Reform

3

Despite the fact that HB 224 imposed similar restrictions on early voting as those contained in

HB 194, HB 224 was not subject to referendum because it was enacted as an emergency bill and thus was

exempt under Article II, Section 1(d) of the Ohio Constitution.

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Bill (Feb. 9, 2012), available at http://www.ohiochannel.org/MediaLibrary/Media.aspx?fileId=134410 (last visited July 12, 2012). The repeal bill, Substitute Senate Bill Number 295 (“SB 295”), was passed by the General Assembly on May 8, 2012 and signed by the Governor on May 15, 2012. SB 295, 129th General Assembly (May 8, 2012).
Although SB 295 effectively repealed the changes made to the in-person early voting deadlines by HB 194 by eliminating the new more restrictive language added by HB 194 to Ohio Rev. Code § 3509.01, it did not repeal the conforming changes made by HB 224 to Ohio Rev. Code §§ 3509.03 and 3511.02. Id. As a result, following the passage of HB 224 and SB 295, one early voting deadline exists for non-UOCAVA voters: 6 p.m. on the Friday before an election. Ohio Rev. Code § 3509.03 (as amended by HB 224). But two deadlines exist for UOCAVA voters: 6 p.m. on the Friday before an election, Ohio Rev. Code § 3511.02 (as amended by HB 224) and the close of the polls on Election Day, Ohio Rev. Code § 3511.10 (following the repeal of HB 194 by SB 295).4
Concerns about creating two classes of voters with different access to the polls were raised several times through legislative testimony. For example, Carrie L. Davis, Executive Director of the League of Women Voters of Ohio, brought it to the General Assembly’s attention in her legislative testimony on March 21, 2012. See McTigue Decl., Ex. 7 (Carrie L. Davis Testimony (March 21, 2012). Davis explained the history of HB 194 and HB 224 and the confusion that resulted from the conflicting provisions. She warned the General Assembly, “Passing a straight repeal of provisions that were only in HB 194 without addressing the

4

A chart summarizing these legislative changes is attached to the McTigue Declaration as Exhibit

6.

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‘technical changes’ made in HB 224 continues the inconsistency problem, wherein sections of the voting law conflict with one another.” Id. The General Assembly chose not to address these issues; it also provided no justification for its decision.
D. Secretary of State’s Advisory Even before the passage of SB 295, however, it was clear that there would be conflicting
deadlines for in-person early voting if the referendum petition on HB 194 was successful (and the effective date of HB 194 was suspended as a result). On October 14, 2011, Defendant Husted issued Advisory 2011-07 to the County Boards of Elections, in part to address conflicting early voting deadlines. See McTigue Decl., Ex. 8 (Defendant Husted’s October 14, 2011 Advisory). According to the Advisory: “In-person absentee voting ends at 6 p.m. the Friday before the election for non-uniformed military and overseas voters. Ohio Rev. Code 3509.03.” McTigue Decl., Ex. 8 at 2. The Advisory provided a different end time for UOCAVA voters. It noted that those “voters may vote in-person absentee until the close of the polls on the day of the general or primary election. They must vote at the board of elections office between 6 p.m. the Friday before the election and the close of the polls on the day of the election. Ohio Rev. Code 3511.10.”5 Id. In essence, the Secretary of State appropriately resolved the conflict between the two in-person early voting deadlines for UOCAVA voters in favor of the more generous time period.6 Subsequent efforts by local boards of elections to extend the in-person early voting deadline for non-UOCAVA voters to the Monday before the election were all denied by the Secretary of State, on the ground that Ohio Rev. Code § 3509.03 prohibited him from

5

The Advisory was issued after HB 194 was stayed by referendum and remained in effect after

SB 295 repealed HB 194.

6

Because the referendum on HB 194 and the repeal of 194 by SB 295 have the same practical

effect, the Advisory remains in effect.

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authorizing voting during this window of time for non-UOCAVA voters. See McTigue Decl.,
Ex. 9 (Letter sent by Defendant Husted to the Director and Deputy Director of the Montgomery
County Board of Elections (October 25, 2011)); McTigue Decl., Ex. 10 (Letter sent by
Defendant Husted to the Director of the Darke County Board of Elections (October 27, 2011)).
Similar legislative efforts, sponsored by Democrats, to restore early voting for non-UOCAVA
voters in the three days prior to the election were all defeated by the Republican-controlled
majority in both houses of the General Assembly, with all but one vote falling along party lines.
See McTigue Decl., Ex. 11 (Amendment to reinstitute absent voting on weekends and the
Monday before an election, reported by House State Government and Elections regarding
Substitute Senate Bill 295).
E. Summary of Legislative Changes
In sum, in the past year, the in-person early voting system has been changed in the
following ways:
• Before the General Assembly passed HB 194, non-UOCAVA and UOCAVA voters shared the same deadline for in-person early voting. Essentially, both groups of voters could vote early in-person through the Monday before Election Day. UOCAVA voters also had the option on Election Day of voting either at the polls or at their board of elections office. This latter provision regarding Election Day voting is not at issue in this litigation.
• HB 194 attempted to significantly shorten the early voting period by establishing a new deadline of 6 p.m. on the Friday before Election Day. Although HB 194 added new language to accomplish this goal, the General Assembly failed to make appropriate changes to two other applicable sections, creating inconsistencies in the deadline for inperson early voting for both UOCAVA and non-UOCAVA voters.
• HB 224 corrected the legislative oversight in HB 194 and made all four provisions dealing with early voting consistent. Thus, it set a deadline of 6 p.m. on the Friday before Election Day for the two sections not addressed in HB 194 for both UOCAVA and non-UOCAVA voters. 8

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• A referendum petition was filed on September 29, 2011, and as a result, the provisions addressing the early voting deadline in HB 194 were put on hold. Thus, any changes made in HB 194 were reset to their pre-HB 194 state. However, HB 224 was still in effect. Thus, the technical corrections made in HB 224 no longer served their purpose of creating consistency among all four provisions for in-person early voting. Indeed, the 224 provisions, standing alone, created inconsistency again. Non-UOCAVA voters were left with a deadline of 6 p.m. on Friday. Two provisions applied to UOCAVA voters: Friday at 6 p.m. and the close of polls on Monday (with the additional option to vote inperson at a board of elections office on Election Day).
• Before Ohio voters could vote on the HB 194 referendum, SB 295 was passed by the General Assembly repealing HB 194 and enacting the early voting sections as amended by HB 224. Thus, the end result was non-uniform deadlines for the cut-off of in-person early voting.
• Prior to the passage of SB 295, Defendant Husted issued an advisory on how to harmonize the referendum on HB 194 with the provisions in HB 224. The advisory directed the local boards of elections to limit in-person early voting for non-UOCAVA voters to 6 p.m. the Friday before Election Day, but to allow UOCAVA voters to vote early in person through the Monday before Election Day (with the additional option to vote in person at a board of elections office on Election Day). In essence, the Secretary of State appropriately resolved the conflicting provisions applicable to UOCAVA voters in favor of the more generous time frame, but was constrained by the HB 224 amendments to Ohio Rev. Code § 3509.03 to apply a more restrictive deadline to nonUOCAVA voters.
See McTigue Decl., Ex. 6.
As a result of this convoluted legislative history, two similarly situated groups of Ohio
voters are now treated differently with respect to the deadline for in-person early voting. This
disparate treatment makes it likely that some voters, who now cannot vote early in person over
the weekend before Election Day, may not be able to vote at all, because of work or family
obligations or transportation challenges. See McTigue Decl., Ex. 12 (legislative testimony of
Eric Marshall, Manager of Legal Mobilization of the Lawyers’ Committee for Civil Rights
Under Law (May 10, 2011)).
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ΙΙΙ. ARGUMENT A. PLAINTIFFS ARE ENTITLED TO A PRELIMINARY INJUNCTION “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on
the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008); see also Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219, 233 (6th Cir. 2011). Plaintiffs satisfy each of these criteria. Indeed, infringement of a constitutional right generally constitutes irreparable injury. See Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998). In addition, because plaintiffs “show a substantial likelihood that the challenged law is unconstitutional, no substantial harm to others can be said to inhere in its enjoinment[,]” and “it is always in the public interest to prevent violation of a party’s constitutional rights.” Déjà Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn., 274 F.3d 377, 400 (6th Cir. 2001) (citation omitted).
1. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR CLAIM THAT OHIO’S ARBITRARY AND DISPARATE TREATMENT OF VOTERS, AND THE BURDEN ON THE FUNDAMENTAL RIGHT TO VOTE, VIOLATE THE EQUAL PROTECTION CLAUSE.
Plaintiffs will very likely succeed on their claim that the changes in Ohio law governing early voting violate the Equal Protection Clause. The laws effectively create two classes of Ohio voters: one group may vote in the three days prior to Election Day; the other group may not. This disparate treatment of voters is arbitrary: The State has provided no justification, and no discernible justification exists. Furthermore, even if there were an asserted justification, the
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relevant provisions must fall: They burden the fundamental right to vote but are not necessary to any sufficiently weighty state interest.
a. Ohio’s elimination of the last three days of early in-person voting for most, but not all, Ohio voters constitutes arbitrary and disparate treatment that violates the Equal Protection Clause.
“It is beyond cavil that voting is of the most fundamental significance under our constitutional structure.” Burdick v. Takushi, 504 U.S. 428, 433 (1992) (citation and internal quotation marks omitted). “No right is more precious,” Wesberry v. Sanders, 376 U.S. 1, 17 (1964), since the right to vote is “preservative of all rights.” League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 476 (6th Cir. 2008) (quoting Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886); citing Harper v. Va. St. Bd. of Elections, 383 U.S. 663, 670 (1966)). Indeed, the “right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” Reynolds v. Sims, 377 U.S. 533, 555 (1964).
The fundamental right to vote is not limited to “the initial allocation of the franchise,” but includes “the manner of its exercise.” Hunter, 635 F.3d at 234 (quoting Bush v. Gore, 531 U.S. 98, 104 (2000)). “[A] citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.” Dunn v. Blumstein, 405 U.S. 330, 336 (1972). Of course, states have substantial latitude to design and administer their elections; for example, they may choose to allow or not to allow early voting. But “[h]aving once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Hunter, 635 F.3d at 234 (quoting Bush, 531 U.S. at 10405) (emphasis added)). In short, “state actions in election processes must not result in arbitrary
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and disparate treatment of votes.” Id. (internal quotations omitted); see also League of Women Voters, 548 F.3d at 477 (“At a minimum, . . . equal protection requires nonarbitrary treatment of voters.” (citation and internal quotation marks omitted)). This principle applies with full force in the context of absentee voting. See O’Brien v. Skinner, 414 U.S. 524 (1974).7
Here, Ohio’s actions unquestionably result in disparate treatment of voters. In passing HB 224 and SB 295, the Ohio legislature withdrew from the majority of Ohio citizens a previously conferred right to vote in a particular manner – specifically, the right to cast a ballot in the three days immediately preceding an election. And it did so while leaving that right intact for UOCAVA voters. This disparate treatment is significant. As the Supreme Court has acknowledged, the days immediately preceding an election are critical for participation. “It is well known that the public begins to concentrate on elections only in the weeks immediately before they are held,” Citizens United v. Fed. Election Comm’n, ___ U.S. ___, 130 S. Ct. 876, 895 (2010). Ohio’s disparate treatment of voters is arbitrary. The State has provided no justification for its decision to withdraw from only one class of voters the last three days of early voting. The statutory text contains no justification; nor do the Committee Reports or the subsequent Secretary of State analysis. This failure is striking, given that the legislature heard testimony highlighting the problem of disparate treatment resulting from the legislature’s maneuvers.

7

O’Brien involved a challenge brought by detainees in New York jails and pretrial detention

facilities who, though eligible to vote, did not qualify for absentee balloting; at the time, New York law

required absentee voters to be actually absent from their ordinary counties of residence. The peculiar

effect of this requirement was that individuals incarcerated in their ordinary counties of residence were

ineligible to vote absentee, while detainees in facilities in other counties were eligible for absentee ballots.

The Court found the distinction arbitrary and irrational, explaining that “New York’s election statutes, as

construed by its highest court, discriminate between categories of qualified voters in a way that, as

applied to pretrial detainees and misdemeanants, is wholly arbitrary.” O’Brien, 414 U.S. at 530.

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In addition, there is no discernible rational basis for the disparate treatment. First, the distinction is not based on voter qualifications. It is uncontroverted that the voters for whom the last three days of early voting was eliminated are otherwise qualified to vote. See Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 189 (2008) (plurality opinion) (“[E]ven rational restrictions on the right to vote are invidious if they are unrelated to voter qualifications.”).
Second, the difference between UOCAVA and non-UOCAVA voters provides no justification for applying a different, more restrictive deadline to non-UOCAVA voters. Of course, overseas voters should be treated differently from non-overseas voters. Indeed, UOCAVA itself represents a response to the special difficulties that confront members of the military stationed away from their home counties and other overseas citizens. It was enacted to facilitate absentee voting by a group of citizens who are often not present in the area in which they vote. But here, the laws at issue govern only in-person early voting, and there is no reason why all voters should not have the benefit of the extra three days. Moreover, any suggestion that the current scheme was designed to benefit UOCAVA voters is undermined by what the legislature actually did in enacting the three bills at issue. In amending its election laws, it also created two different, and conflicting, deadlines for UOCAVA voters: 6 p.m. on the Friday before an election, Ohio Rev. Code § 3511.02 (as amended by HB 224), and the close of the polls on Election Day, Ohio Rev. Code § 3511.10 (following the repeal of HB 194 by SB 295). The enactment of a more restrictive deadline for UOCAVA voters as well demonstrates that the disparate treatment is not justified by some interest in protecting the voting rights of UOCAVA voters.
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Finally, to the extent the disparity was motivated by a bare desire to obtain partisan advantage in the election contest, that motivation cannot justify the disparate treatment. Early voting in Ohio has been most prevalent among groups of voters believed to vote Democratic, see McTigue Decl. Ex. 3, including women, the elderly, and those with lower levels of income and education. But a voting restriction motivated in part by partisan considerations must also have an independently sufficient justification to survive. See Crawford, 553 U.S. at 203 (“It is fair to infer that partisan considerations may have played a significant role in the decision to enact SEA 483 [the Indiana photo ID law]. If such considerations had provided the only justification for a photo identification requirement, we may also assume that SEA 483 would suffer the same fate as the poll tax at issue in Harper.”). And on the flip side, if the disparity was created because of pure error – and not because of partisan animus – that only highlights the arbitrary nature of the restriction on early voting.
In short, the arbitrary elimination of the last three days of early voting for a class of Ohio voters cannot survive Equal Protection review. The Constitution does not expressly protect the right to vote early or absentee, but because Ohio has made those voting mechanisms available, it cannot then deny them to some of its citizens on an arbitrary basis. See Hunter, 635 F.3d at 234; O’Brien, 414 U.S. at 530; League of Women Voters, 548 F.3d at 477. Indeed, Defendant Husted appears to recognize the importance of this principle. In a press release regarding the mailing of absentee ballots by boards of elections, Defendant Husted stated: “Uniformity in the way in which Ohio’s elections are administered is of the utmost importance, which is why Ohio must have a standardized approach to administering elections that ensures equal access for all voters.” See Secretary of State Husted Press Release, Statement by Secretary of State Husted Regarding
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Uniformity of Voter Outreach by Boards of Elections (dated August 22, 2011) (attached as McTigue Decl. Ex. 13). Plaintiffs agree.
b. Ohio’s elimination of the last three days of early in-person voting also violates the Equal Protection Clause because it burdens the fundamental right to vote for most voters without a sufficiently weighty justification.
Even if the disparate treatment here were not wholly arbitrary, plaintiffs would be very likely to succeed on the merits of their Equal Protection Claim because Ohio cannot provide reasons sufficiently weighty to justify the significant burden on the fundamental right to vote for most, but not all, Ohio voters. The Supreme Court has set forth a balancing test for evaluating the permissibility of a state regulation that burdens the right to vote. Under that balancing test, “[a] court considering a challenge to a state election law must weigh ‘the character and magnitude of the asserted injury’” against “‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’” Burdick, 504 U.S. at 434 (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)). Furthermore, as the Court has explained, “even rational restrictions on the right to vote are invidious if they are unrelated to voter qualifications.” Crawford, 553 U.S. at 189. “[H]owever slight [a] burden [on the right to vote] may appear . . . it must be justified by relevant and legitimate state interests ‘sufficiently weighty to justify the limitation.’” Id. at 191 (quoting Norman v. Reed, 502 U.S.279, 288-89 (1992)).
Recent experience in Ohio confirms that the burden on the right to vote imposed by the withdrawal of early voting for most, but not all, Ohio voters is significant. In 2008, nearly thirty
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percent of votes were cast early, either in person or by mail, and in 2010 the figure was nearly twenty-six percent. See McTigue Decl., Ex. 2 at 2. In 2010, 29.6% of those casting early inperson or by mail votes did so within one week of Election Day. Id. at 5. It is estimated that in 2008, nearly 93,000 voters cast their ballots in person in just the three days immediately preceding the election. See McTigue Decl., Ex. 3. Moreover, in testimony before the Ohio House of Representatives, Eric Marshall of the Lawyers’ Committee for Civil Rights Under Law explained that early in-person voting in Ohio has led to the enfranchisement of “people who otherwise might not vote at all, including those voters that have real difficulty getting to the polls on Election Day due to job or family commitments or transportation problems.” See McTigue Decl., Ex. 12. Marshall also noted that such “[e]arly voting . . . provides critical relief to ease congestion and burdens at the polls on Election Day,” which is crucially important in light of Ohio’s “history of long lines and Election Day confusion and break downs.” Id.
The fact that Ohioans may still vote early at a different time, or on Election Day itself, does not remedy the constitutional violation. Indeed, courts have invalidated election regulations that did not constitute complete denials of the right to vote, where the burden was deemed sufficiently severe. See League of Women Voters, 548 F.3d at 466 (finding that plaintiffs had successfully stated a claim that “Ohio’s voting system is so deficient as to deny or severely burden their fundamental right to vote”); see also NAACP State Conference v. Cortes, 591 F. Supp. 2d 757, 764 (E.D. Pa. 2008) (concluding that at a certain point, “the burden of standing in a queue ceases to be an inconvenience or annoyance and becomes a constitutional violation because it, in effect, denies a person the right to exercise his or her franchise”). Weekends are often the most convenient time to vote; indeed, they are the only times certain people will
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realistically be able to vote. And the ability to vote in person on one of the earlier weekends is not a meaningful alternative for those who wish to vote later; particularly in national contests, major developments are common in the days immediately preceding an election, and the right to vote before the campaign has run its course is a significantly diminished right.
Ohio cannot show that the burden it has imposed is justified by “relevant and legitimate state interests sufficiently weighty to justify the limitation.” Crawford, 553 U.S. at 191; see also Anderson, 460 U.S. at 789. As discussed above, the deprivation of the three days of early voting is “unrelated to voter qualifications,” see Crawford, 553 U.S. at 189; and both partisan motivation and legislative error are not permissible justifications. Furthermore, Ohio’s burden on the right to vote does not serve any legitimate regulatory interest in ensuring that “some sort of order, rather than chaos, is to accompany the democratic processes.” Burdick, 504 U.S. at 433 (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)). To the contrary, against the backdrop of Ohio’s troubled history of election administration and the widespread reliance on the ability to vote in the three-day pre-election period in recent election cycles, and in light of the conflicting deadlines that now exist, the change is highly likely to cause greater chaos. Thus, not only does the burden imposed by Ohio significantly impair the right to vote of many Ohio citizens to vote without a sufficiently weighty reason, the concerns raised by the scheme are magnified by the likelihood that, if this restriction stands, election-day resources will again be strained in ways almost certain to result in further chaos and disenfranchisement.
For the foregoing reasons, Plaintiffs are likely succeed on the merits of their claim that the Ohio legislature’s withdrawal of the right to vote in the immediate pre-election period,
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without justification and in light of the longer time available for UOCAVA voters, deprives Ohio citizens of the equal protection of the laws.
2. The Balance Of Hardships Tips Sharply In Favor Of Granting A Preliminary Injunction a. Absent a preliminary injunction, Ohio’s arbitrary and unequal system for early in-person voting will irreparably harm thousands of voters in the upcoming elections, including Plaintiffs’ members and supporters.
“[A] plaintiff can demonstrate that a denial of an injunction will cause irreparable harm if the claim is based upon a violation of the plaintiff's constitutional rights.” Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 578 (6th Cir. 2002). As noted above (see Part IIIA(1)(a), supra), the right to vote is fundamental. Indeed, it is of the most fundamental significance under our constitutional structure. See Reynolds v. Sims, 377 U.S. 533, 555 (1964). Courts have consistently held that an abridgement or dilution of the right to vote constitutes irreparable harm. See Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 882, 907 (9th Cir. 2003) (“Abridgement or dilution of a right so fundamental as the right to vote constitutes irreparable injury.”) (citation and internal quotation marks omitted); Williams v. Salerno, 792 F.2d 323, 326 (2d Cir. 1986) (the denial of the fundamental right to vote is unquestionably “irreparable harm”); Miller v. Blackwell, 348 F. Supp. 2d 916, 922 (S.D. Ohio 2004) (Dlott, J.) (“Because this Court has found that the Defendants’ challenged actions threaten to impair both Plaintiffs’ constitutional right to due process and constitutional right to vote, the Court must find that Plaintiffs will suffer an irreparable injury if the temporary restraining order does not issue.”).
Here, the withdrawal from most, but not all, Ohio voters of the right to cast a ballot in the three days immediately preceding an election places a significant burden on the right to vote. This burden, once imposed, can never be undone. And “[g]iven the fundamental nature of the
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right to vote, monetary remedies would obviously be inadequate [to remedy the violation]; it is simply not possible to pay someone for having been denied a right of this importance.” Dillard v. Crenshaw Cnty., 640 F. Supp. 1347, 1363 (M.D. Ala. 1986). Because countless Ohio voters, including many members and supporters of Plaintiffs’ organizations, are likely to suffer irreparable harm in the absence of preliminary relief, this prong of the analysis weighs heavily in favor of granting a preliminary injunction.
b. The harm to Defendants from issuance of an injunction will be nonexistent or negligible.
In stark contrast to the severe and irreparable harm that Plaintiffs will face if no preliminary injunction is granted, Defendants cannot show that they will suffer any significant harm if the requested injunction issues. Because Plaintiffs “show[] a substantial likelihood that the challenged law is unconstitutional, no substantial harm to others can be said to inhere in its enjoinment.” Déjà Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn., 274 F.3d 377, 400 (6th Cir. 2001); Spencer v. Blackwell, 347 F. Supp. 2d 528, 538 (S.D. Ohio 2004) (same). Put differently, given the importance of the right to vote, even if a preliminary injunction were to create any administrative inconvenience, such minimal burden would not justify the denial of injunctive relief. See, e.g., United States v. Berks Cnty., Pa., 250 F. Supp. 2d 525, 541 (E.D. Pa. 2003) (“Although these reforms may result in some administrative expenses for Defendants, such expenses are likely to be minimal and are far outweighed by the fundamental right at issue”) (citing Johnson v. Halifax Cnty., 594 F. Supp. 161, 171 (E.D.N.C. 1984) (“administrative and financial burdens on defendant not undue in light of irreparable harm caused by unequal opportunity to participate in county election”)). In short, the harm to Defendants from issuance of an injunction will be non-existent or negligible. Ohio has
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successfully administered early in-person voting in the three days before Election Day for five years; indeed, the absence of early in-person voting during this period in the next election is likely to increase, not decrease, the administrative burden of administering Ohio’s election system. The balance of hardships, therefore, weighs heavily in favor of Plaintiffs.
3. A Preliminary Injunction Would Be In The Public Interest. “[I]t is always in the public interest to prevent violation of a party’s constitutional rights.” Déjà Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn., 274 F.3d 377, 400 (6th Cir. 2001) (citation omitted); Spencer, 347 F. Supp. at 538. In particular, the public interest is served by ensuring that elections proceed in a manner that complies with constitutional requirements. See Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219, 244 (6th Cir. 2011) (finding that “[m]embers of the public . . . have a strong interest in exercising the fundamental political right to vote” and that “[t]hat interest is best served by favoring enfranchisement and ensuring that qualified voters’ exercise of their right to vote is successful”) (internal quotation marks and citations omitted); NAACP-Greensboro Branch v. Guilford Cnty. Bd. of Elections, No. 1:12CV111, 2012 U.S. Dist. LEXIS 34353, at *37 (M.D.N.C. Mar. 14, 2012) (“This court finds that the public interest in an election . . . that complies with the constitutional requirements of the Equal Protection Clause is served by granting a preliminary injunction”); Perry v. Judd, No. 3:11-CV-856, 2012 U.S. Dist. LEXIS 4290, at *36 (E.D. Va. Jan. 13, 2012) (“The public interest weighs heavily in favor of the plaintiffs. . . . [T]he public interest more closely lies with the voter’s ability to cast a ballot for the candidate of her choice. This factor also weighs in favor of granting preliminary relief”); Sw. Voter Educ. Registration Project, 344 F.3d at 908 (explaining that “an abstract interest in strict compliance with the letter
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of state law . . . is a less important public interest in the context of challenges to state law under the equal protection clause of the Fourteenth Amendment”). In this case, the public interest factor is therefore coextensive with the likelihood of Plaintiffs’ success on the merits of their constitutional claim. See Am. Civil Liberties Union v. McCreary Cnty., 354 F.3d 438, 463 (6th Cir. 2003) (stating that because the plaintiffs had demonstrated a likelihood of success of the merits of their constitutional claim, “the other three preliminary [injunction] factors follow in favor of granting the injunction”); Mayhew v. Cohen, 604 F. Supp. 850, 860 (E.D. Pa. 1984) (following the “constitutional procedures, which themselves balance the private and state interests at stake,” means that success on legal claims will determine public interest factor in deciding motion for injunctive relief). Having established the likely illegality of the disparity created by Ohio’s statutes, Plaintiffs have also established that the public interest is served by the issuance of a preliminary injunction preventing implementation of this unconstitutional scheme. IV. THIS COURT SHOULD ENJOIN DEFENDANTS FROM IMPLEMENTING AND
ENFORCING LINES 863 AND 864 OF SEC. 3509.03 (I) IN HB 224, AS WELL AS THE SB 295 ENACTMENT OF OHIO REV. CODE § 3509.03 WITH THE HB 224 AMENDMENTS, AND SHOULD THEREBY RESTORE IN-PERSON EARLY VOTING ON THE THREE DAYS IMMEDIATELY PRECEDING ELECTION DAY FOR ALL ELIGIBLE OHIO VOTERS Plaintiffs seek a preliminary injunction narrowly tailored to prevent arbitrary and disparate treatment of voters and an impermissible burden on the right to vote in the upcoming election. Plaintiffs’ requested injunction prohibits Defendants, their respective agents, servants, employees, attorneys, successors, and all persons acting in concert with each or any of them, from implementing or enforcing lines 863 and 864 of § 3509.03 (I) in HB 224 and the SB 295 enactment of Ohio Rev. Code § 3509.03 with the HB 224 amendments. This requested relief
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would restore in-person early voting on the three days prior to Election Day for all eligible Ohio
voters.
Respectfully submitted,
/s/ DONALD J. McTIGUE ________________________ Donald J. McTigue (0022849) Trial Counsel Mark A. McGinnis (0076275) J. Corey Colombo (0072398) McTigue & McGinnis LLC 545 East Town Street Columbus, Ohio 43215 Tel: (614) 263-7000 Fax: (614) 263-7078 dmctigue@electionlawgroup.com mmcginnis@electionlawgroup.com ccolombo@electionlawgroup.com
Attorneys for Plaintiffs Robert F. Bauer* Perkins Coie 700 Thirteenth Street, Suite 600 Washington DC 20005 Tele: 202-434-1602 Fax: 202-654-9104 RBauer@perkinscoie.com
General Counsel for Plaintiffs Obama for America and the Democratic National Committee
Jennifer Katzman* Obama for America 130 East Randolph Chicago, IL 60601 Tele: 312-985-1645 jkatzman@barackobama.com
National Voter Protection Counsel for Plaintiff Obama for America 22

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* Motions for Admission Pro Hac Vice forthcoming Certificate of Service The undersigned counsel hereby certifies that the foregoing Motion has been served upon counsel for the adverse parties herein via electronic mail this the 17th day of July 2012:
Damian Sikora Ohio Assistant Attorney General dsikora@ohioattorneygeneral.gov Betsy Schuster Chief Counsel, Ohio Secretary of State Jon Husted bschuster@ohiosecretaryofstate.gov
/s/ MARK A. McGINNIS ____________________________ Mark A. McGinnis (OH 0076275)
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 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

OBAMA FOR AMERICA, et al., Plaintiffs,
v. JON HUSTED, et al.,
Defendants.

Case No. 2:12-CV-0636 JUDGE PETER C. ECONOMUS OPINION AND ORDER ON PRELIMINARY INJUNCTION

“A citizen has a constitutionally protected right to participate in elections on a n equal

basis with other citizens in the jurisdiction.” Dunn v. Blumstein, 405 U.S. 330, 336 ( 1972). In

Ohio, that right to participate equally has been abridged by Ohio Revised Code ' 3509.03 and

the Ohio Secretary of State’s further interpretation of that statute with regard to in-person early

voting. In 2005, Ohio expanded participation in absentee balloting and in-person early voting to

include all registered Ohio voters. Now, “in-person early voting” has been redefined by the Ohio

legislature to limit Plaintiffs’ access to the polls. This Court must determine whether preliminary

injunctive relief should be granted to Plaintiffs on their claim that Ohio’s restriction of in-person

early voting deprives them of their fundamental right to vote. Following Supreme Court

precedent, this Court concludes that Plaintiffs have stated a constitutional claim that is likely to

succeed on the merits. A s a r esult—and as explained below—this Court grants Plaintiffs’

motion for preliminary injunction.

I. PROCEDURAL BACKGROUND Plaintiffs Obama for America, Democratic National Committee, and Ohio Democratic
Party (“Plaintiffs”) filed a complaint against Jon Husted, in his official capacity as Ohio

Secretary of State, and Mike DeWine, in his official capacity as Ohio Attorney General (“the State” or “Defendants”). (Doc. # 1.) In their complaint, Plaintiffs allege that implementation of a 6 p.m. Friday deadline for in-person early voting codified in Ohio Revised Code (“ORC”) ' 3509.03 unconstitutionally infringes on the fundamental right to vote.1 In addition, Plaintiffs allege that conflicting and different deadlines for in-person early voting violate the Equal Protection clause of the United States Constitution.
The Ohio Revised Code, as interpreted by Defendant Secretary of State Husted, provides for two different deadlines for in-person early voting: one for “UOCAVA” voters—voters who fall within the stated definition under the Uniformed and Overseas Citizens Absentee Voter Act2—and another deadline for non-UOCAVA voters, i.e., all other voters. Plaintiffs filed a Motion for Preliminary Injunction, seeking to prohibit the State from enforcing the 6 p.m. Friday deadline and to restore in-person early voting to all Ohio voters through the Monday before Election Day. (Doc. # 2.) Plaintiffs filed an Affidavit in Support of their motion, with exhibits. (Doc. # 3.)
1 For the purposes of this Opinion, the Court uses “in-person early voting” to refer to the period of time when a registered Ohio voter may cast his or her ballot in person at a local elections board or other designated site. In addition, the Court uses “Election Day” to refer to November 6, 2012; “Friday” to denote the Friday before Election Day; “the weekend” to refer to the Saturday and Sunday before Election Day; and “Monday” to refer to the Monday before Election Day. 2 In 2009, Congress passed the Military and Overseas Voter Empowerment Act (“MOVE Act”), which amended the Uniformed and Overseas Citizens Absentee Voting Act of 1986 (“UOCAVA”), 42 U.S.C. ' 1973ff, et seq. Pub.L. No. 111-84 '' 577 to 582, 583(a), 584 to 587, 123 Stat. 2190 (2009). UOCAVA, as amended by the MOVE Act, required the states to implement particular reforms prior to the November 2010 g eneral elections to prevent the disenfranchisement of absent uniformed services and overseas voters. O hio’s statutes with regard to UOCAVA voters can be found in Ohio Revised Code Chapter 3511.
2

Pursuant to a briefing schedule ordered by this Court, the State and Defendant/Intervenors3 filed memoranda in opposition (docs. # 9 and 10). Plaintiffs filed a reply in support of their motion. (Doc. # 20.) Two groups filed motions for leave to file amicus briefs, and those motions were granted and the amicus briefs were deemed filed instanter. ( Amicus brief of American Center for Law and Justice, doc. # 19; amicus brief of County of Cuyahoga, Ohio, doc. # 38.)
On August 15, 2012, t his Court held a hearing on P laintiffs’ motion for preliminary injunction. The parties filed numerous exhibits: Plaintiffs’ Exhibits (docs. # 34, 34-1 – 34-42); Defendants’ Exhibits, which include exhibits of both the State and Defendant/Intervenors (docs. # 35, 35-1 – 35-12). In addition, after the hearing, the State Defendants filed a Notice of Secretary of State Directive 2012-35. (Docs. # 40 and 40-1.) In response to that notice, Plaintiffs filed a Supplemental Memorandum, with exhibits (docs. # 42, 42-1 – 42-5), to which the State Defendants filed a response (doc. # 44). Thereafter, Plaintiffs filed a Notice of Further Developments, with exhibits. (Doc. # 46, 46-1 – 46-2.)
II. LEGISLATIVE BACKGROUND A. In-Person Early Voting Rights Arguably as a response to the problems attendant to the 2004 general election,4 the Ohio
3 On August 1, 2012, Defendant/Intervenors Military Groups filed a Motion to Intervene. (Doc. # 8.) This Court granted the motion in an Order dated August 6, 2012. (Doc. # 12.) 4 See, e.g., League of Women Voters v. Brunner, 548 F.3d 463 (6th Cir. 2008) and descriptions therein.
3

General Assembly established no-fault absentee voting, eliminating the qualifications voters had been required to meet under the former law. (HB 234, 126th Leg. (Oh. 2005) (amending Ohio Rev. Code §§ 3509.02(A) and (C), 3509.03, and 3509.04(B)).) In doing so, the State expanded to all Ohio voters the right to vote absentee and the right to cast that vote in person at the voter’s county’s board of elections (or other designated site) through the day before Election Day.5
B. Legislative Ambiguity On June 29, 2011, t he Ohio General Assembly passed Amended Substitute House Bill Number 194 (“HB 194”). Governor John Kasich signed the bill on July 1, 2011. By passing HB 194, the Ohio General Assembly sought to eliminate the last three days of early in-person voting for all voters, but instead it created two deadlines: Friday at 6 p.m . and end of business Monday.6 On July 13, 2011, the 129th Ohio General Assembly passed Amended Substitute
5 See H.B. 194, 129th Leg. (Oh. 2011) (“HB 194”) at ' 3509.01 (setting no deadline prior to HB 194 amendments), ' 3509.03 (setting a deadline of Monday), ' 3511.02 (setting a deadline of Monday), and ' 3511.10 (prior to HB 194 amendments, setting a deadline of Monday for early in-person voting.) T he Ohio Revised Code provisions regarding early voting are not a model of legislative clarity. The provisions’ language is disorganized and generally confusing, containing numerous deadlines that are not clearly identified. 6 For non-UOCAVA voters, HB 194 amended § 3509.01 to provide that, “[f]or all voters who are applying to vote absent voter’s ballots in person, ballots . . . shall continue to be available for use through six p.m. on the last Friday before the day of the election.” (HB 194, Sec. 3509.01(B)(3).) However, HB 194 did not change the language in § 3509.03, which set the end time for in-person early voting at close of business the day before an election. (HB 194, Sec. 3509.03.) The deadline for in-person early voting was inconsistent: Friday at 6 p.m. and close of business on Monday. In addition, HB 194 amended § 3511.10 to make the deadline for in-person early voting deadline for UOCAVA voters consistent with the deadline for non-UOCAVA voters, changing the deadline from the close of the polls on Election Day to “during the time that absent voter’s ballots may be cast in person.” (HB 194, Sec. 3511.10.) However, HB 194 did not amend § 3511.02, which permitted in-person early voting by UOCAVA voters
4

House Bill Number 224 (“HB 224”). The bill was signed on July 27, 2011 but did not become effective until October 27, 2011. H B 224 amended both §§ 3509.03 and 3511.02 to end early voting for all Ohio voters at Friday at 6 p.m. Before HB 224 went into effect, on September 29, 2011, a referendum petition was filed, the immediate effect of which was to put on hold HB 194’s amendments. (See McTigue Aff. Ex. 5.) With HB 194 on hol d, HB 224 served to continue the legislative confusion with conflicting and unclear deadlines.7
Defendant Secretary of State addressed the issue of inconsistent in-person early voting deadlines in the Secretary of State Advisory 2011-07, dated October 14, 2011. (McTigue Aff., Exh. 8.) That advisory directed all Ohio elections boards to limit in-person early voting for nonUOCAVA voters to 6 p.m. the Friday before Election Day but to extend the deadline to UOCAVA voters through the Monday before Election Day.
On May 8, 2012, t he 129th Ohio General Assembly passed Substitute Senate Bill Number 295 (“SB 295”). SB 295 was signed on May 15, 2012 and became effective on August 15, 2012. Although SB 295 repealed HB 194, it did not repeal the changes made by HB 224. It therefore enacted into law the post-referendum status of the in-person early voting deadlines. Specifically, non-UOCAVA voters may vote early in-person until 6 p.m. on Friday pursuant to
until the close of regular business hours on the day before the election. Again, this resulted in two deadlines for inperson early voting: Friday at 6 p.m. and close of business on Monday.
7 Pursuant to ORC ' 3509.03, the deadline for non-UOCAVA voters is 6 p.m. Friday. UOCAVA voters have two deadlines, 6 p.m. Friday and end of business on the Monday before Election Day, pursuant to ORC '' 3511.02, as amended by HB 224, and 3511.10, as that section provided prior to HB 194, respectively.
5

§ 3509.03, while § 3509.01 contains no deadline. Notwithstanding any attempts at consistency,
UOCAVA voters are again left with two deadlines: Friday at 6 p.m., pursuant to § 3511.02, and
the close of business on Monday, pursuant to § 3511.10.
On June 22, 2012, the Secretary of State issued Directive 2012-24. (Defs. Exh. 2.) In this
one, he stated as follows:
In order to ensure uniformity across counties and reduce lines at polling places for the November 6, 2012 G eneral Election, the Secretary of State’s Office will mail absentee ballot applications, by non-forwardable mail, to 1) every registered voter in Ohio in “active” status [footnote omitted], and 2) every registered voter in Ohio who voted in the 2008 presidential election as reflected in the Statewide Voter Registration Database, regardless of voter status as described herein. On Wednesday, August 15, 2012, Defendant Secretary of State issued another directive
that sets uniform “regular business hours” for all Ohio elections boards, beginning October 2,
2012 through November 2, 2012. (Directive 2012-35, filed by Defendants, doc. # 40-1.) The
directive eliminates weekend hours. Henceforth, all Ohio elections boards will be open between
Monday and Friday, from 8:00 am through 5:00 pm until the last two weeks prior to Election Day, when the hours extend to 7 p.m.8 Defendant Secretary of State stated, in the directive, as
follows:
[A]fter talking with election officials across the state, I have decided to level the playing field on voting days and hours during the absentee period in order to ensure that the Presidential Election in Ohio will be uniform, accessible for all, fair, and secure.
8 All Boards of Elections are closed on Monday, October 8, 2012 in observance of a state holiday. The next day, Tuesday, October 9, 2012, Boards of Elections are to be open from 8 a.m. to 9 p.m. (Directive, doc. # 40-1, page 2.)
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(Doc. # 40-1, page 2, emphasis added.) For non-UOCAVA voters, weekend in-person early voting no l onger exists. T o
participate in in-person early voting, an Ohio voter must cast his or her vote during the traditional work week, during typical working hours—except for the last two weeks prior to Election Day, when elections boards are open until 7 p.m. weekdays, until Friday, November 2, 2012 at 6 p.m.
The lack of weekend voting hours affects UOCAVA voters, as well, as the Secretary forbids any county elections board to be open on t he weekends between October 2 and November 2. A ccording to Defendants, this Directive does not instruct elections boards to be open the weekend prior to Election Day, instead leaving UOCAVA voters’ access to in-person early voting to the discretion of each county elections board. (Defs. Response, page 1.)
III. THE PARTIES’ ARGUMENTS A. Plaintiffs The gravamen of Plaintiffs’ complaint is that all Ohio voters should be able to vote during
the three days prior to Election Day—as they have since 2005—and that the State’s restriction of in-person early voting is an unconstitutional violation of the Equal Protection Clause of the United States Constitution. ( See Complaint and Motion for Preliminary Injunction.) P laintiffs seek a court order preventing the State from enforcing a Friday 6 p.m. deadline and restoring early inperson voting rights to all registered Ohio voters. (Complaint, & 1.)
Plaintiffs assert that “tens of thousands of Ohio voters” will seek to exercise their right “to cast their votes in the three days prior to Election Day—a critical right that was granted to all
7

qualified Ohio voters in 2005, used by an estimated 93,000 Ohio voters in the 2008 presidential election, and inequitably taken away from most, but not all, Ohio voters without justification in the last year.” (Motion for Prelim. Inj., page 1.) In support, Plaintiffs submit four statistical studies. One study asserts that 17.8% of 2010 Ohio early voters cast those votes in person at local boards of elections. ( “A Study of Early Voting in Ohio Elections,” The Ray C. Bliss Institute of Applied Politics at the University of Akron, doc. # 34-31 at pages 1 – 2.) The study also notes that “early voters were more likely than election-day voters to be women, older, and of lower income and education attainment.” (Id. at page 1.) “[E]arly voters appear to have favored Democratic candidates in 2010 a nd 2006, while election-day voters favored Republican candidates.” ( Id. at pages 1-2.) From the 2006 a nd 2008 e lections, early voting in Ohio increased from 639,416 voters to 1,717,256 voters, representing an increase to 20% of registered voters and 30.2% of the vote cast. (Id. at pages 2-3.) In 2010, a survey of early voters indicated that at least 29% cast their vote in the seven days before Election Day. (Id. at page 5.) Significantly, the study indicated that early voters “tend to have lower income than election-day voters” with the difference “most noticeable among people with annual incomes of less than $35,000.” ( Id. at page 15.) T he study does point out that both early and election-day voting groups have approximately the same number of people in the highest income category. (Id.)
In another study, a voter advocacy group reviewed data from the 2008 General Election and, extrapolating information collected in seven Ohio counties, concluded that over 100,000 voters would vote in person during the last three days before Election Day. (Update, Northeast Ohio Voter Advocates, doc. # 34 -32, page 2; see also “Effects of HB194 and SB148 on Absentee Voting. Part 1. Expected Crowding of In-Person Absentee Voting in 2012,” Northeast
8

Ohio Voter Advocates, doc. # 34 -33, page 2, concluding that “a short absentee voting period with uniform hours for all counties would cause non-uniform crowding and most likely, a nonuniform loss of vote in different counties.”)
The Northeast Ohio Voter Advocates also produced a study based on data from the Cuyahoga County, Ohio Board of Elections and the 2010 census. (“Racial and ethnic proportions of early in-person voters in Cuyahoga County, General Election 2008, a nd implications for 2012,” doc. # 34-35.) That study indicates that the new restrictions on in-person early voting disproportionately impacts African American voters in Cuyahoga County.
Finally, the Franklin County Board of Elections prepared a report “to identify when EIP [Early In-Person] voting was most utilized, to identify spatial patterns/trends of EIP voters, and to study the racial and ethnic make-up of EIP voters,” based on a file of all 2008 in-person early voters in Franklin County and 2010 Census data. (“2008 Early In-Person Voting,” doc. # 34-34.) The report concluded that in-person early voting accounted for 9% of all ballots cast in 2008, representing 51,785 vo ters. ( Id. at page 3.) O ther statistical data indicated that a disproportionately higher number of African Americans voted early and that 82% of all early inperson votes were cast “during either afterhours on weekdays, on w eekends, or the Monday before the election[.]” (Id.) In addition, the study showed that 67% of weekday early in-person voting took place after 5 p.m. (Id.)
Defendants do not submit any countervailing statistical information, other than an article from “PSOnline” written by three authors from Reed College in Oregon. (Defs.’ Exh. 11.) That article provides a general, national overview of early-voting election reforms, but that overview is based primarily on information obtained no later than 2005, and it does not offer any specific
9

statistics related to Ohio. Prior to the legislative flurry and the Secretary of State’s interpretation of same, Ohio
voters had the right to vote during the 35 days leading up to Election Day, weekends inclusive. Now, except for voters serving in the military or located overseas, voters may cast their votes only during limited weekday working hours and, then, only until 6 p.m . on F riday. Plaintiffs argue that the burden is substantial, disproportionately affects minority and working class voters, and is the result of arbitrary treatment by the State.
B. Defendants Defendants’ counter-argument is that the burdens on O hio boards of election call for restricted hours for in-person early voting, including the weekend prior to Election Day, with the exception of UOCAVA voters whose special treatment is both necessary and commendable. In support, Defendants offer the declaration of the Deputy Assistant Secretary of State, Matthew Damschroder (Defs.’ Exh. 8, doc . # 35 -9) and the declarations of two career military officers, Colonel Duncan D. Aukland and Captain Robert H. Carey, Jr. (Defs.’ Exhs. 7 a nd 9, respectively). Defendants list the various duties imposed on elections boards and poll workers, from displaying a precinct map and collecting supplies to preparing the official list of registered voters which contain “notations of those voters who have already requested an absentee ballot by mail or in person in order to prevent an absentee voter from also casting a regular ballot on Election Day” pursuant to ORC ' 3509.06(D). (Mem. Contra, pages 17 – 18.) Defendants assert that permitting all Ohio voters to vote in person the three days prior to Election Day will interfere with elections boards’ collective ability to prepare. (Id. at 18.)
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The military officers describe the particular difficulties faced by military voters who may
need access to voting the last three days prior to Election Day due to unexpected deployment.
Defendants point out that without those last three days, a suddenly deployed serviceperson may
not be able to vote at all:
The Ohio General Assembly recognizes the nature of deployment, which can happen abruptly and unexpectedly. F or instance, members of the National Guard can be called up to active duty in order to respond to disasters, whether manmade or natural. These call-ups can occur at a moment’s time without any warning. . . . Ohio’s laws, allowing UOCAVA voters the ability to cast an absentee ballot after the time during which non-military and domestic voters may do so has closed, rationally recognizes the unique circumstance that military voters may face. The General Assembly has provided a statutory scheme that accommodates that possibility. (Defs.’ Mem. Contra, pages 13 – 14, emphasis added.) However, although the State Defendants
argue strenuously in favor of UOCAVA voting during those last three days, they do not reconcile
that fervor with the reality that Defendant Secretary of State failed to preserve the right of
UOCAVA voters to vote that weekend—or any weekend—as the result of his Directive 2012-35.
That directive eliminates all weekend voting and, ultimately, leaves it to the discretion of county
elections boards to make available in-person early voting to UOCAVA voters on the Saturday,
Sunday, and Monday prior to Election Day. (See Defs.’ Response, doc. # 44, page 2.)
IV. PRELIMINARY INJUNCTION
Rule 65 of the Federal Rules of Civil Procedure authorizes the Court to grant preliminary
injunctive relief. A district court is to consider the following four factors when deciding to issue
a preliminary injunction: (1) whether the movant has a strong likelihood of success on the merits;
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(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 County Bd. of Elections, 635 F.3d 219, 233 (6th Cir. 2011); Certified Restoration Dry Cleaning Network, LLC v. Tenke Corp., 511 F.3d 535, 542 ( 6th Cir. 2007). “ [T]he four considerations applicable to preliminary injunctions are factors to be balanced and not prerequisites that must be satisfied.” In re Eagle-Picher Industries, Inc., 963 F.2d 855, 859 (6th Cir. 1992) (citation omitted). “These factors simply guide the discretion of the court; they are not meant to be rigid and unbending requirements.” Id. at 859.
A. Likelihood of Success on the Merits The right to vote is a fundamental right, “preservative of all rights.” Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). The United States Supreme Court has reiterated time and again the particular importance of treating voters equally, from Gray v. Sanders, 372 U.S. 368 (1964)—“The idea that every voter is equal to every other voter in his State, when he casts his ballot in favor of one of several competing candidates, underlies many of our decisions”—to Dunn v. Blumstein, 405 U.S. 330, 336 (1972)—“A citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction”—to Bush v. Gore:
The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another. It must be remembered that the right of suffrage can be denied by a
12

debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise. 531 U.S. 98, 104 -05 (2000) (internal citations and quotations omitted) (emphasis added). Consistent with the admonition against devaluing or “debas[ing] the weight of a citizen’s vote,” the Sixth Circuit has applied the Bush/Gore analysis and Supreme Court precedent to elections cases in recent years. League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 477 (6th Cir. 2008) (noting that “[a]lthough Bush was necessarily limited to [its] present circumstances, district courts have found its analysis applicable in challenges to voting systems.”) (internal citation and quotation marks omitted). Similarly, in Hunter v. Hamilton County Bd. of Elections, the Sixth Circuit was guided in their analysis “by the important requirement that state actions in election processes must not result in arbitrary and disparate treatment of votes.” 635 F .3d 219, 234 (6th Cir. 2011) (quoting Bush/Gore, 531 U.S. at 105) (internal citation and quotation marks omitted). Of course, Hunter involved the actual counting of votes—as did Bush v. Gore—but League of Women concerned a plethora of problems Ohio voters faced when attempting to cast their votes. All of these cases—and their precedents—rely on the principle that voters cannot be restricted or treated in different ways without substantial justification from the state. Courts employ the Anderson “balancing approach” when they are confronted with a constitutional challenge to a state’s restriction on voting. Anderson v. Celebrezze, 460 U.S. 780
13

(1983); Burdick v. Takushi, 504 U .S. 428 (1992).9 More recently, the Supreme Court highlighted the applicability of the Anderson approach and its “requirement that a court evaluating a constitutional challenge to an election regulation weigh the asserted injury to the right to vote against the precise interests put forward by the State as justifications for the burden imposed by its rule.” Crawford v. Marion County Election Bd., 553 U.S. 181, 189 ( 2008) (internal citation and quotation marks omitted). The Crawford Court noted that “evenhanded restrictions that protect the integrity and reliability of the electoral process itself are not invidious[,]” id. (citing to Harper v. Virginia Bd. of Elections, 383 U .S. 663 ( 1966)), but it cautioned that “[h]owever slight that burden may appear, as Harper demonstrates, it mu st be justified by relevant and legitimate state interests sufficiently weighty to justify the limitation.” Id. at 191 (quoting Norman v. Reed, 502 U.S. 279, 288–89 (1992) (internal quotation marks omitted)).
Therefore, to determine at this stage whether Plaintiffs are likely to succeed on the merits of their constitutional claim, this Court must balance the injury to Plaintiffs’ voting rights against
9 This Court notes that Defendants have relied on the traditional “rational basis test” to argue that the statute at issue is constitutional. (See Defs.’ Mem. Contra, doc. # 9, pages 9-13; Def/Intervenors’ Mem. In Opp., doc. # 8-1, pages 7-10; Defs.’ Response, doc. # 44, page 4.) Defendants assert that “[t]he only question is whether the challenged legislative scheme treats similarly situated individuals differently without any rational basis.” (Response, doc. # 44, page 4, citing to Bench Billboard Co. v. City of Cincinnati, 675 F .3d 974 (6th Cir. 2012) (challenging a city ordinance regulating advertising) and Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) (challenging the validity of a zoning ordinance excluding homes for mentally retarded). Consequently, they ignore the Anderson balancing test. Defendant/Intervenors do apply the Anderson test, see pages 16-17, although they characterize its application as a way to “avoid” the rational basis test, see page 16.
14

the precise interests put forward by the State Defendants, mindful of the Court’s caution that even where a burden may be slight, the State’s interests must be weighty.
1. Plaintiffs’ right to vote is burdened. According to Plaintiffs, their right to vote is unreasonably and arbitrarily burdened by ORC ' 3509.03’s deadline and, by extension, the Secretary of State’s accompanying interpretation in Directive 2012-35. In 2005, i n the wake of the 2004 e lection, all registered voters in Ohio could vote in person the 35 days prior to Election Day. Now, all weekend voting is eliminated for all Ohio voters, except for UOCAVA voters, who may or may not be able to vote those days depending on the county in which they live. The burden on Plaintiffs—and their members and supporters—is particularly high, they argue, because their constituency represents a large percentage of those who voted in person in the last three days before Election Day. Plaintiffs offer statistical support for these contentions, i.e., studies that indicate that minority and working class voters will be disproportionately affected by the restrictions on in-person early voting. (See statistical overview, pages 8-9, supra.) Defendants do not dispute these studies nor offer any statistics to counter the argument. Instead, Defendants argue that the burden is slight and, at any rate, it is the result of the State’s need to alleviate the burden on elections boards caused by in-person early voting. NonUOCAVA voters have 23 days in which to cast an in-person early vote, and due to Defendant Secretary of State’s Directive, all of that voting will occur at boards of elections operating under an exact weekday schedule. F urther, Defendants argue, Plaintiffs’ claim relates to absentee voting, which is not a fundamental right and, therefore, any restriction arising out of reasonable State interests—such as alleviating the burden on e lections boards—is not a constitutional
15

violation. Anyway, Defendants assert, Ohio voters can just mail in their absentee ballots or vote on Election Day.
As a matter of law, this Court finds that Plaintiffs have a constitutionally protected right to participate in the 2012 election—and all elections—on an equal basis with all Ohio voters, including UOCAVA voters. See Dunn v. Blumstein, 405 U.S. 330, 336 (1972); Bush v. Gore, 531 U.S. 98, 104-05 (2000). Here, the State had granted the right to in-person early voting to all Ohio voters, in ORC ' 3509.03 prior to HB 194. In 2008, t housands of Ohio voters cast their votes in person in the three days prior to Election Day. T hen, the State retracted that right, imposing a 6 p.m . Friday deadline. This Court finds that “in-person early voting” is a voting term that had included the right to vote in person through the Monday before Election Day, and, now, thousands of voters who would have voted during those three days will not be able to exercise their right to cast a vote in person. Plaintiffs submit statistical studies to support their assertion that low-income and minority voters are disproportionately affected by the elimination of those voting days. T herefore, the injury to Plaintiffs is significant and weighs heavily in their favor.
2. The State fails to substantiate its precise interests to justify the burden to Plaintiffs’ right to vote.
Defendants do not counter Plaintiffs’ assertion that restricting in-person early voting significantly impacts thousands of Ohio voters or that it impacts certain segments of the population more than others. Instead, Defendants argue first that the State’s action is justified to address the needs of Ohio elections boards as they prepare for Election Day, and, secondly, that the State is justified in severing the electorate into two groups—UOCAVA
16

and non-UOCAVA—to serve the particular needs of the military and, albeit to a l esser
extent, overseas voters.
Defendants offer little in support of their claim that Ohio elections boards cannot
simultaneously accommodate in-person early voting and pre-Election Day preparations during
the three days prior to Election Day. D efendants present the declaration of Matthew
Damschroder, Deputy Assistant Secretary of State. (Defs. Exh. 8, doc. # 35-8, && 26, 27.) Mr.
Damschroder describes the myriad duties required of elections boards and poll workers, from
displaying a precinct map and collecting supplies to preparing the official list of registered voters
which contain “notations of those voters who have already requested an absentee ballot by mail
or in person in order to prevent an absentee voter from also casting a regular ballot on Election
Day” pursuant to ORC ' 3509.06(D). (Defs.’ Memo. Contra, pages 17 – 18; see also
Declaration of Matthew M. Damschroder, Defs. Exh. 8, && 26, 27.)
Offering a different point of view, however, is the County of Cuyahoga, Ohio, which
states that it has a great interest in providing in-person early voting to its constituents the
weekend before Election Day.
[ ]The County has a substantial interest in early voting and the outcome of this litigation. C uyahoga County is Ohio’s largest county. T he County’s citizens experienced substantial problems and long lines trying to exercise their constitutional right to vote during the 2004 general election. Indeed, the long lines and voting problems experienced by Cuyahoga County’s citizens were a primary drive behind Ohio’s introduction of early voting. [ ]Cuyahoga County provides budgetary funding to the Cuyahoga County Board of Elections. S ince early voting came to Ohio in 2006, the County has taken all necessary measures and budgeted for early voting, including the last three days before the election, to protect its citizens’ right to exercise their constitutional right to vote.
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(Amicus Brief, Cuyahoga County, && 2 and 3.) Although it can speak only for itself, Cuyahoga
County challenges Defendants’ justification that all boards of elections are too burdened with
work and budget concerns to provide equal in-person voting for all voters. A t a minimum,
Cuyahoga County raises the question of how great a burden each county can or will bear. There
is insufficient evidence before the Court to make that determination, but the question remains.
This justification is at best neutral.
At first glance, Defendants’ second justification for severing the electorate into two
classes appears to weigh heavily in favor of Defendants. Military voters have almost no control
over their schedules, particularly in times of sudden deployment, as detailed by the declarations
of two career military officers. (Defs. Exh. 7, Dec. of Colonel Duncan D. Aukland, and Defs.
Exh. 9, D ec. of Captain Robert H. Carey, Jr.) Defendants have consistently argued that
UOCAVA voters are excluded from the State’s withdrawal of three extra days of in-person
voting because without those three days, UOCAVA voters may not be able to vote at all:
The Ohio General Assembly recognizes the nature of deployment, which can happen abruptly and unexpectedly. F or instance, members of the National Guard can be called up to active duty in order to respond to disasters, whether manmade or natural. These call-ups can occur at a moment’s time without any warning. . . . Ohio’s laws, allowing UOCAVA voters the ability to cast an absentee ballot after the time during which non-military and domestic voters may do so has closed, rationally recognizes the unique circumstance that military voters may face. The General Assembly has provided a statutory scheme that accommodates that possibility. (Defs.’ Mem. Contra, pages 13 – 14, emphasis added.)
Notably, though, the “statutory scheme” described by Defendants does not guarantee that
18

UOCAVA voters will be able to vote in the last three days prior to Election Day—even those
suddenly deployed. Why? Because the Secretary of State’s Directive, which carefully sets forth
non-UOCAVA in-person voting times, permits local election boards to determine their hours for
the last weekend before Election Day. Defendants emphasize that whether a service member—
or overseas voter—can actually vote during those three days is up to each county elections board.
Whether to be open those three days for in-person absentee voting by UOCAVA voters remains in the discretion of the individual county boards of election or, as Plaintiffs recognize, the Secretary exercises his authority to issue a future directive. In the past, when election boards could choose to be open those three days for in-person absentee voting by any qualified voter, many were not open the entire period. In 2008, six of Ohio’s 88 counties chose not to offer any in-person absentee voting on t he Saturday prior to Election Day, nearly all chose not to do so on that Sunday, and all were open during their regular weekday business hours on that Monday. See Doc. 35, Exhibit 8, & 26. In 2010, when fewer voters were expected, fourteen counties chose not to offer any in-person absentee voting on that Saturday, nearly all chose not to do s o on that Sunday, and all were open on t hat Monday. Id. 27.
(Response, page 2, emphasis added.) In sum, Defendants’ justification for excepting UOCAVA
voters from the 6 p.m . Friday deadline—that the military requires this extra voting
opportunity—is completely eviscerated, county by county. In fact, according to Defendants,
military voters can expect not to be able to vote the Saturday and Sunday before Election Day, if
history is any guide.
3. The State’s interests are insufficient to justify the burden to Plaintiffs.
The Anderson Court instructs reviewing courts to test “the legitimacy and strength” of
each interest put forward by the State and to “consider the extent to which those interests make it
19

necessary to burden the plaintiff’s rights.” 460 U.S. at 789. Here, the strength of the State’s interest in carving out an exception for UOCAVA voters is hardly Herculean, as protection of that interest has been left, deliberately, to each county board’s discretion. The Secretary of State emphasized the importance of “level[ing] the playing field” insofar as non-UOCAVA voting access was concerned, but he was silent regarding the three days prior to Election Day for UOCAVA voters. He could have required all boards of election to be open Saturday, Sunday and Monday for UOCAVA voters, but he did not. “Whether to be open those three days for inperson absentee voting by UOCAVA voters remains in the discretion of the individual county boards of elections” or the Secretary of State in the form of future directive. (Defs.’ Response, page 2.) This Court reads the Secretary’s silence to underscore that the protection of the three additional days of in-person early voting to UOCAVA voters is not a strong state interest.
From the onset of this litigation, Defendants have pointed to special concerns for the military—concerns all parties share—and the military’s need to maintain additional access to inperson early voting. But for UOCAVA voters, what is left is, potentially, one day: Monday. Defendants have presented no e vidence to sustain the inference that in-person early voting on Monday—one day—will burden county boards of elections to the extent that the injury to Plaintiffs is justified. Moreover, Defendants undercut the virtue of their support of military voters by failing to protect any significant measure of UOCAVA voting. Unless a serviceperson is “suddenly deployed” at exactly the right time—enabling in-person voting on Monday—he or she will likely be unable to vote, depending on the local elections board’s “discretion.” That the State cannot justify its interest in foreclosing Ohio voters for one day emphasizes the arbitrary nature of its action.
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Finally, this Court notes that restoring in-person early voting to all Ohio voters through the Monday before Election Day does not deprive UOCAVA voters from early voting. Instead, and more importantly, it places all Ohio voters on e qual standing. The only hindrance to UOCAVA early voting is the Secretary of State’s failure to set uniform hours at elections boards during the last three days before Election Day.
On balance, the right of Ohio voters to vote in person during the last three days prior to Election Day—a right previously conferred to all voters by the State—outweighs the State’s interest in setting the 6 p.m. Friday deadline. The burden on Ohio voters’ right to participate in the national and statewide election is great, as evidenced by the statistical analysis offered by Plaintiffs and not disputed by Defendants. M oreover, the State fails to articulate a precise, compelling interest in establishing the 6 p.m. Friday deadline as applied to non-UOCAVA voters and has failed to evidence any commitment to the “exception” it rhetorically extended to UOCAVA voters. Therefore, the State’s interests are insufficiently weighty to justify the injury to Plaintiffs. See Anderson v. Celebrezze, 460 U.S. 780, 798 (1983).
The issue here is not the right to absentee voting, which, as the Supreme Court has already clarified, is not a “fundamental right.” McDonald v. Bd. of Election Commissioners, 394 U.S. 802, 807 ( 1969). The issue presented is the State’s redefinition of in-person early voting and the resultant restriction of the right of Ohio voters to cast their votes in person through the Monday before Election Day. This Court stresses that where the State has authorized in-person early voting through the Monday before Election Day for all voters, “the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Bush v. Gore, 531 U.S. 98, 104-05 (2000). Here, that is precisely what the State has done.
21

As a result of the foregoing, this Court finds that Plaintiffs are likely to succeed on the merits of their claim.
B. Remaining Factors Plaintiffs will suffer irreparable injury if in-person early voting is not restored the last three days before Election Day, and there is no definitive evidence before the Court that elections boards will be tremendously burdened. Certainly, the public interest is served by restoring inperson early voting to all Ohio voters. “Our form of representative democracy is premised on the concept that every individual is entitled to vote on equal terms, and each individual’s vote carries the same value as every other vote.” Doe v. Walker, 746 F.Supp.2d 667, 682 ( D. Maryland, 2010) (citing Baker v. Carr, 369 U.S. 186 (1962)). Restoring in-person early voting to all Ohio voters through the Monday before Election Day returns to voters the same opportunity to vote as previously conferred under Ohio law.
V. CONCLUSION For the reasons discussed above, this Court hereby GRANTS Plaintiffs Obama for
America, Democratic National Party, and Ohio Democratic Party’s Motion for Preliminary Injunction. (Doc. # 2.) The Court DECLARES:
That Ohio Revised Code ' 3509.03 is unconstitutional to the extent it changes the deadline for in-person early voting from the close of business on the day before Election Day to 6 p.m. on the Friday before Election Day; and
22

That Substitute Senate Bill 295’s enactment of Ohio Revised Code ' 3509.03 with the Amended Substitute House Bill 224 amendments violates the Equal Protection Clause of the United States Constitution.
FURTHER, this Court HEREBY ORDERS that the State of Ohio through Defendant Secretary of State Jon Husted IS ENJOINED from implementing or enforcing Ohio Revised Code ' 3509.03 in Amended Substitute House Bill 224 a nd/or the Substitute Senate Bill 295 enactment of Ohio Revised Code ' 3509.03 with the Amended Substitute House Bill 224 amendments; and
IT IS FURTHER ORDERED that in-person early voting IS RESTORED on the three days immediately preceding Election Day for all eligible Ohio voters. And specifically, for the purposes of the 2012 General Election, this Order restores in-person early voting to all eligible Ohio voters on S aturday, November 3, 2012; Sunday, November 4, 2012; and Monday, November 5, 2012. T his Court anticipates that Defendant Secretary of State will direct all Ohio elections boards to maintain a specific, consistent schedule on those three days, in keeping with his earlier directive that only by doing so can he ensure that Ohio’s election process is “uniform, accessible for all, fair, and secure.”
IT IS SO ORDERED.
/s/ Peter C. Economus______________ PETER C. ECONOMUS UNITED STATES DISTRICT JUDGE
23

 
 Case: 2:12-cv-00636-PCE-NMK Doc #: 50 Filed: 09/05/12 Page: 1 of 3 PAGEID #: 1625

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

------------------------------------------------------x

:

OBAMA FOR AMERICA, et al.,

:

:

Plaintiffs,

:

v.

:

:

JON HUSTED, et al.,

:

:

Defendants.

:

:

------------------------------------------------------x

Case No. 2:12-cv-636 Judge Economus Magistrate Judge King

PLAINTIFFS’ MOTION TO ENFORCE THE COURT'S ORDER OF AUGUST 30, 2012

Plaintiffs file this Motion to bring to the Court's attention a Directive issued yesterday by

Defendant Husted in disregard of this Court's Order of August 31, 2012, and to seek full

enforcement of that Order.

In its August 31, 2012 decision, this Court ordered “that in-person early voting IS

RESTORED on the three days immediately preceding Election Day for all eligible Ohio

voters”, specifically listing Saturday, November 3, 2012, Sunday, November 4, 2012, and

Monday, November 5, 2012 as days that are to be restored. The Court further anticipated that

Defendant Husted would direct all Ohio elections boards to maintain a “specific, consistent

schedule on those three days.”

Notwithstanding the Court's injunction, on September 4, 2012, Defendant Husted

issued a directive that provides that no hours will be established until after a decision on the

Defendants' appeal of the Court's order, because “the constitutionality of the statute setting in-

person absentee voting hours is still subject to court review and it would [ ] confuse voters to set

hours now that the court may change later.” The directive further “strictly prohibits county

Case: 2:12-cv-00636-PCE-NMK Doc #: 50 Filed: 09/05/12 Page: 2 of 3 PAGEID #: 1626
boards of elections from determining hours for the Friday, Saturday, Sunday, or Monday before the election.”
Having sought no stay, either in this Court or the Court of Appeals, the State appears to believe it can issue one on its own authority. Nowhere in this Directive does the Secretary identify the legal basis for this extraordinary action, much less how it accords with the wellestablished principle that “[i]t is for the court of first instance to determine the question of the validity of the law, and until its decision is reversed for error by orderly review, either by itself or by a higher court, its orders based on its decision are to be respected. . . .” United States v. United Mine Workers of America, 330 U.S. 258, 294 (1947). See also North American Coal Corp. v. Local Union 2262, United Mine Workers of America, 497 F.2d 459 (6th Cir. 1974) (injunction of court, even if invalid, still must be obeyed until and unless overturned on appeal); Blackard v. Memphis Area Medical Center for Women, Inc., 262 F.3d 568 (6th Cir. 2001) (parties bound by an injunction are obligated to abide by that injunction when it is in effect, even if it is later determined to be erroneous).
Plaintiffs respectfully request that the Court act as appropriate and necessary to enforce its Order issued August 31, 2012.
Respectfully submitted,
/s/ DONALD J. McTIGUE ________________________ Donald J. McTigue (0022849) Trial Counsel Mark A. McGinnis (0076275) J. Corey Colombo (0072398) McTigue & McGinnis LLC 545 East Town Street Columbus, Ohio 43215 Tel: (614) 263-7000 Fax: (614) 263-7078 2

Case: 2:12-cv-00636-PCE-NMK Doc #: 50 Filed: 09/05/12 Page: 3 of 3 PAGEID #: 1627
dmctigue@electionlawgroup.com mmcginnis@electionlawgroup.com ccolombo@electionlawgroup.com
Attorneys for Plaintiffs Robert F. Bauer* Perkins Coie 700 Thirteenth Street, Suite 600 Washington DC 20005 Tele: 202-434-1602 Fax: 202-654-9104 RBauer@perkinscoie.com
General Counsel for Plaintiffs Obama for America and the Democratic National Committee
Jennifer Katzman* Obama for America 130 East Randolph Chicago, IL 60601 Tele: 312-985-1645 jkatzman@barackobama.com National Voter Protection Counsel for Plaintiff Obama for America * Admitted pro hac vice
Certificate of Service
I hereby certify that the foregoing was electronically filed with the U.S. District Court, Southern
District of Ohio, on September 5, 2012 and served upon all parties of record via the court’s
electronic filing system.
/s/ Mark A. McGinnis__________ Mark A. McGinnis (0076275)
3

 
 Case: 2:12-cv-00636-PCE-NMK Doc #: 80 Filed: 02/21/13 Page: 1 of 2 PAGEID #: 1757

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION
OBAMA FOR AMERICA, et al.,
Plaintiffs,

vs.

Civil

Judge

Magistrate

JON HUSTED, et al.,

Defendants.

Action 2:12-cv-636 Economus
Judge King

PRELIMINARY PRETRIAL ORDER A preliminary pretrial conference was held on February 21, 2013. All parties, except the intervenors, were represented. Plaintiffs seek injunctive relief under 42 U.S.C. § 1983, claiming that recent amendments to O.R.C. § 3509.03 are violative of the Equal Protection Clause of the Fourteenth Amendment to the extent that certain Ohio voters are prevented from casting in-person early ballots during the three days prior to an election. With the grant of preliminary injunctive relief, plaintiffs now seek permanent injunctive relief. There is no jury demand. The parties agree that the Court has subject matter jurisdiction under 28 U.S.C. §§ 1331, 1343, that the Court has personal jurisdiction over the parties and that venue is proper. The parties shall make their Rule 26(a)(1) disclosures no later than March 31, 2013. Motions or stipulations for leave to amend the pleadings may be filed, if at all, by March 31, 2013.

1

Case: 2:12-cv-00636-PCE-NMK Doc #: 80 Filed: 02/21/13 Page: 2 of 2 PAGEID #: 1758

The parties do not contemplate issues involving discovery of electronically stored information or privilege.
The reports of primary experts must be produced by October 31, 2013; the reports of rebuttal experts must be produced by November 30, 2013. If the expert is specially retained, the reports must conform to Fed. R. Civ. P. 26(a)(2)(B), unless otherwise agreed to by the parties. If the expert is not specially retained, the reports must conforms to Fed. R. Civ. P. 26(a)(2)(C), unless otherwise agreed to by the parties.
All discovery must be completed by December 31, 2013. The parties are advised that the discovery completion date requires that discovery requests be made sufficiently in advance to permit timely response by that date.
Motions for summary judgment may be filed no later than January 31, 2014.
This case will be available for final pretrial conference in May 2014, or as soon thereafter as the Court's calendar permits.
This case will not be referred to a Settlement Week. Plaintiffs will provide to defense counsel, by March 31, 2013 and quarterly thereafter, a statement of attorney fees (i.e., simply hours and hourly rates) and expenses incurred to date. If any date set herein falls on a weekend or legal holiday, the date of the next business day will control.

February 21, 2013

s/Norah McCann King Norah McCann King
United States Magistrate Judge
2

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

OBAMA FOR AMERICA, et al., Plaintiffs,
v. JON HUSTED, et al.,
Defendants.

Case No. 2:12-cv-636 Judge Peter C. Economus Magistrate Judge Norah McCann King MEMORANDUM OPINION AND ORDER

Presently pe nding be fore th e C ourt is th e Plaintiffs’ Motion f or S ummary J udgment (Doc. 84). For the reasons that follow, the motion is GRANTED. Further, the Court GRANTS permanent injunctive relief to th e Plaintiffs’ as s pecified i n t he J udgment a nd P ermanent Injunction filed concurrently with this Opinion and Order.
I. At i ssue i n t his cas e are w hether p rovisions of § 3509.03 of t he Ohio R evised C ode establishing a deadline of 6 p.m . on t he Friday before an election for in-person early voting for non-UOCAVA vot ers a nd di rectives i ssued b y D efendant Secretary of S tate Jon H usted establishing da ys a nd h ours f or i n-person e arly voting t hroughout O hio vi olate t he E qual Protection C lause o f t he F ourteenth A mendment. T he r elevant f actual an d l egislative background is set out in Sections I & II o f the Court’s Opinion and Order of August 31, 2012 (Doc. 48) (“Preliminary Injunction”), which the Court incorporates herein by reference. In s um, f ollowing t he 2 004 pr esidential e lection, O hio a dopted a br oad i n-person ear ly voting s cheme t hat pe rmitted vot ers t o c ast early ba llots up t o t he M onday before an e lection. Beginning i n 2011 and following a s omewhat convoluted legislative history, the Ohio G eneral Assembly passed s everal b ills amending § 3 509.03. These am endments resulted in t he
1

elimination of the f inal three d ays o f i n-person e arly vot ing f or non -UOCAVA v oters. T he legislation also amended the Ohio Revised Code to include two seemingly inconsistent in-person early voting deadlines for UOCAVA voters—one at 6 p.m. on the Friday before an election and a second b y the close of business on t he Monday before an election. See OHIO REV. CODE §§ 3511.02 & 3511.10.
Implementing § 3509.0 3, the S ecretary of S tate issued D irective 2012 -35, w hich s et uniform i n-person e arly vot ing hour s t o be f ollowed b y t he B oards of E lection of all O hio Counties t hat d id not i nclude vot ing hour s f or t he S aturday, S unday, a nd M onday b efore t he 2012 pr esidential election. F urther, H usted pu rported t o i nterpret the Ohio R evised C ode t o require the Monday deadline for UOCAVA voters as the more generous of the two inconsistent provisions, a nd r epresented t hat D irective 2012 -35 s hould be i nterpreted t o l eave t o t he discretion of t he i ndividual B oards of E lection i n-person e arly vot ing ho urs t o be a dopted f or UOCAVA voters.
The P laintiffs f iled t he i nstant a ction on J uly 17 , 2012, a sserting t hat t he di fferent i nperson early voting deadlines for UOCAVA and non -UOCAVA voters vi olated the Fourteenth Amendment’s equal protection guarantee, and concurrently moved for a preliminary injunction restoring early voting to non-UOCAVA voters on the Saturday, Sunday, and Monday before the presidential election. O n August 31, 2012, the Court granted the Preliminary Injunction, which provided in part:
That O hio R evised C ode § 3509.03 i s unc onstitutional t o t he e xtent i t changes the deadline for in-person early voting from the close of business on t he day before Election Day to 6 p.m. on the Friday before Election Day; and
That Substitute Senate Bill 295’s enactment of Ohio Revised Code § 3509.03 with t he A mended S ubstitute H ouse Bi ll 224 amendments v iolates t he E qual Protection Clause of the United States Constitution.
FURTHER, this Court HEREBY ORDERS that the State of Ohio through
2

Defendant S ecretary o f S tate Jon H usted IS E NJOINED from i mplementing or enforcing O hio Re vised Code § 3509.03 i n A mended S ubstitute H ouse B ill 224 and/or the S ubstitute S enate Bi ll 295 e nactment o f O hio Re vised Code § 3509.03 with the Amended Substitute House Bill 224 amendments; and
IT IS F URTHER ORDERED that in-person early voting IS RESTORED on th e th ree d ays imme diately p receding E lection Day f or a ll e ligible O hio v oters. And specifically, for t he purposes of t he 2012 G eneral Election, t his O rder re stores in-person early voting t o a ll eligible O hio v oters on S aturday, N ovember 3, 2012 ; Sunday, November 4, 2012; and Monday, November 5, 2012. T his Court anticipates that Defendant Secretary of State will direct all Ohio elections boards to maintain a specific, consistent schedule on those three days, in keeping with his earlier directive that on ly b y doi ng s o c an he e nsure t hat O hio’s e lection pro cess i s “ uniform, accessible for all, fair, and secure.”
(Preliminary Injunction at 2 2–23.) T he C ourt’s de cision w as uph eld by the S ixth C ircuit on
October 5, 2012. See Obama for Am. v. Husted, 697 F.3d 423 (6th Cir. 2012).
On October 16, 2012, following exhaustion of appeals, Husted issued Directive 2012-50,
which established uniform in-person early voting hours for UOCAVA and non-UOCAVA voters
for the three days before the presidential election as follows:
• From 8:00 a.m. to 2:00 p.m. on Saturday, November 3, 2012;
• From 1:00 p.m. to 5 p.m. on Sunday, November 4, 2012; and
• From 8:00 a.m. to 2 p.m. on Monday, November 5, 2012
(See Doc. 84-1 at 7.)
The p residential el ection cam e an d went and, in F ebruary 2014, t he O hio G eneral
Assembly pa ssed, a nd Governor J ohn K asich s igned i nto l aw S ubstitute S enate B ill 205 a nd
Amended S enate B ill 238. T hese bi lls c ontained a mendments t o §§ 3 509.03, 3511.02, a nd
3511.10 t hat w ent i nto effect on J une 1, 2014. H owever, t he bi lls made no c hanges t o t he
disparate deadlines for in-person early voting for UOCAVA and non-UOCAVA voters originally
at is sue in th is la wsuit, a nd t hose de adlines remain c odified i n t he O hio R evised C ode. On
February 25, 2014, H usted i ssued D irective 2014 -06, w hich s ets bus iness hour s f or i n-person
3

early voting for the 2014 primary and general elections. The directive provides: The hours I a m setting f or t he M ay 6, 2014 P rimary Election a nd N ovember 4, 2014 G eneral E lection should be f amiliar t o all of you as t hey r eflect t he bipartisan recommendations set forth in the Ohio Association of Election Officials (OAEO) proposal on absentee voting. To date, your OAEO plan is the only voting schedule t hat ha s garnered s upport from R epublicans and D emocrats, ba lancing both access for the voter and the legitimate administrative and cost concerns for large, medium and small counties.
(Doc. 84-1 at 9.) While Directive 2014-06 does provide for voting hours of between 8:00 a.m. and 4 p.m . for Saturday, November 1, 2014, i t provides no vot ing hours for Sunday, November 2nd a nd M onday, N ovember 3r d, t he t wo d ays i mmediately b efore t he g eneral el ection. (See Doc. 84-1 at 10.)
The Plaintiffs have now moved for summary judgment and request the Court to enter a permanent injunction enjoining Husted from enforcing the 6 p.m. Friday in-person early voting deadline f or non -UOCAVA vot ers c odified i n § 3509.03 a nd r equiring H usted t o r estore i nperson early voting to the three days immediately preceding all future election days.
II. A. Summary judgment is proper where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). The moving party bears the initial burden of “informing the district court of the basis for its m otion, a nd i dentifying t hose po rtions of t he ‘ pleadings, d epositions, a nswers t o interrogatories, and a dmissions o n f ile, to gether with th e a ffidavits, if a ny,’ w hich it b elieves demonstrates the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting prior version of FED. R. CIV. P. 56). The movant may meet this burden by demonstrating the absence of evidence supporting one or more essential elements of the non-
4

movant’s claim. Id. at 323–25. O nce the movant meets this burden, the opposing party “must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quotation and citation omitted).
“In considering a motion for summary judgment, the Court must view the facts and draw all reasonable inferences therefrom in a light most favorable to the nonmoving party.” Williams v. B elknap, 154 F. Supp. 2d 1069, 1071 (E.D. M ich. 2001) (citing 60 I vy St reet C orp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987)). The purpose of summary judgment “is not to resolve f actual i ssues, but t o de termine i f t here a re genuine i ssues of f act t o be t ried.” Abercrombie & Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc., 130 F. Supp. 2d 928, 930 (S.D. Ohio 1999). Ultimately, this Court must determine “whether the evidence presents a sufficient disagreement t o r equire submission t o a j ury or whether i t i s s o one -sided t hat one pa rty m ust prevail as a matter of law.” Anderson, 477 U.S. at 251–52.
B. In o rder to be g ranted pe rmanent i njunctive r elief, a pl aintiff m ust de monstrate a ctual success on the merits of its claims. ACLU of Ky. v. McCreary Cnty., 607 F.3d 439, 445 (6th Cir. 2010). Noting th at th ere e xists n o d ispute o f m aterial f act, th e C ourt f irst c oncludes th at th e Plaintiffs have demonstrated that they are entitled to judgment as a matter of law as to the merits of t heir c laim t hat § 3 509.03’s 6 p.m . F riday de adline f or i n-person e arly vot ing f or non UOCAVA voters is unconstitutional. As the Court held in the Preliminary Injunction: On balance, the right of Ohio voters to vote in person during the last three da ys prior t o E lection D ay—a r ight pr eviously c onferred t o a ll vot ers b y th e State— outweighs the State’s interest in setting the 6 p.m. Friday deadline. The burden on Ohio voters’ right to participate in the national and statewide election is great, as evidenced b y t he s tatistical a nalysis of fered b y P laintiffs a nd not di sputed b y Defendants. Moreover, the State fails to articulate a precise, compelling interest in establishing t he 6 p.m . F riday de adline a s a pplied t o non -UOCAVA v oters a nd
5

has failed to evidence any commitment to the “exception” it rhetorically extended to UOCAVA voters. Therefore, the State’s interests are insufficiently weighty to justify th e in jury to P laintiffs. See A nderson v. Celebrezze, 460 U .S. 78 0, 798 (1983).
The i ssue h ere i s not the r ight t o a bsentee vot ing, w hich, a s t he S upreme C ourt has al ready clarified, i s not a “ fundamental r ight.” McDonald v . B d. of E lection Commissioners, 394 U .S. 802, 807 ( 1969). T he i ssue pr esented i s t he S tate’s redefinition of i n-person early vot ing and t he resultant restriction of t he r ight of Ohio vot ers t o c ast t heir votes in pe rson through t he M onday be fore Election Day. T his C ourt s tresses t hat w here t he S tate ha s a uthorized i n-person ear ly voting t hrough t he M onday b efore E lection D ay f or a ll vot ers, “the S tate may not, by later arbitrary and disparate treatment, value one person’s vote over that of an other.” Bush v . G ore, 531 U .S. 98, 104 -05 ( 2000). H ere, that i s precisely what the State has done.
(Preliminary Injunction at 21 (emphasis in original).) Here, the Defendants have offered no new
evidence tending to refute that which the Court relied upon in issuing the Preliminary Injunction.
Nor ha ve t hey challenged the C ourt’s l egal c onclusions t hat t he P laintiffs ha d de monstrated a
likelihood of s uccess a s t o t he m erits o f th eir c laims. A ccordingly, th e C ourt h olds th at th e
Plaintiffs have demonstrated that § 3509.03 i s unconstitutional to the extent it treats UOCAVA
voters more favorably than non-UOCAVA voters with regard to in-person early voting.
Having de termined th at the P laintiffs h ave s ucceeded o n th e me rits o f th eir c laims, th e
Court next considers whether a grant of permanent injunctive relief is appropriate and the scope
of th at r elief. The D efendants do not oppos e t he grant of s uch r elief and c oncede t hat a ny
injunction i ssued b y t he Court m ust r equire e qual in-person ear ly voting hour s f or a ll e ligible
voters. The Plaintiffs ask the Court to require Husted to set in-person early voting hours for the
final three days before all future elections consistent with Directive 2012-50, which established
hours for the 2012 presidential election. On the other hand, the Defendants assert that the voting
schedule e stablished b y Directive 2014 -06 remedies th e c onstitutional i nfirmities o f th e O hio
Revised C ode b ecause i t t reats all v oters eq ually. In t he D efendants’ v iew, D irective 2 014-06
6

thus serves as a model for the relief appropriate in this case. The Court, however, disagrees. As not ed b y t he P laintiffs, D irective 2014 -06 is in consistent w ith t he P reliminary
Injunction i n t hat i t doe s not a llow f or i n-person e arly vot ing on t he f inal t wo da ys before t he 2014 general election. The loss of the three final days of early voting for non-UOCAVA voters goes to the heart of amended § 3509.03’s constitutional deficiencies as determined by the Court in bot h 2012 a nd t oday. A s s tated supra, t he O hio R evised C ode still c ontains di ffering and inconsistent in -person early vot ing d eadlines f or UOCAVA a nd non-UOCAVA voters. Accordingly, Directive 2 014-06 can not s erve as a r emedy t o t he statutory pr oblems, es pecially given th at Directive 2 014-06 onl y applies t o t he 2014 e lections a nd there i s no g uarantee t hat Husted or a nother S ecretary of S tate w ould a dopt s imilar hour s f or future elections. As a lso noted b y t he P laintiffs, D irective 2014 -06 is facially i nconsistent w ith § 3511.10 ’s in-person early v oting deadline f or UOC AVA v oters of t he c lose of bus iness on t he M onday be fore a n election.
Further, Directive 2014-06 does not expressly m ention UOCAVA vot ers. T he Court is concerned by this fact because Directive 2012-35 also did not expressly do so, and Husted took the pos ition t hat t hat d irective s hould b e i nterpreted t o allow i ndividual c ounty Boards of Election discretion as to when to set UOCAVA in-person early vot ing h ours on the three days preceding the 2012 presidential election. Finally, while Directive 2014-06 may adopt an election schedule a pproved b y t he O hio A ssociation of E lection O fficials ( “OAEO”), t he f act t hat t he OAEO is a non-partisan body is not relevant to the constitutional deficiencies of § 3509.03 nor to the appropriate remedy in this case.
Accordingly, as specified in the Judgment and Permanent Injunction issued herewith, the Court will require Secretary o f S tate Husted to set uniform and s uitable in-person e arly vot ing
7

hours for all eligible voters for the three days preceding all future elections. However, the Court declines to mandate specific voting hours as requested by the Plaintiffs in that historically voter turnout is lower in a non-presidential election year. Even with this fact in mind, Husted must set in-person early vot ing h ours t hat are consistent with t his Opinion and Order and t he J udgment and Permanent Injunction.
III. For t he f oregoing r easons, P laintiffs’ M otion f or S ummary J udgment ( Doc. 84) is GRANTED. The Court concurrently issues permanent injunctive relief against the Defendants and the Clerk is directed to close this matter. IT IS SO ORDERED.
/s/ Peter C. Economus UNITED STATES DISTRICT JUDGE
8

 
 Case: 2:12-cv-00636-PCE-NMK Doc #: 90 Filed: 06/11/14 Page: 1 of 2 PAGEID #: 1866

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

OBAMA FOR AMERICA, et al., Plaintiffs,
v. JON HUSTED, et al.,
Defendants.

Case No. 2:12-cv-636 Judge Peter C. Economus Magistrate Judge Norah McCann King JUDGMENT AND PERMANENT INJUNCTION

By Memorandum Opinion and Order dated June 11, 2014 (Doc. 89), the Court awarded summary ju dgment in f avor o f th e P laintiffs. For t he r easons s pecified in t hat M emorandum Opinion and Order, it is hereby:
DECLARED that O hio R evised C ode § 3509. 03 i s unc onstitutional t o t he extent i t changes t he d eadline for i n-person e arly vot ing from t he c lose o f bus iness on t he da y b efore election day to 6 p.m. on the Friday before election day;
DECLARED that S ubstitute S enate B ill 295’ s e nactment of Ohio R evised C ode § 3509.03 with the Amended Substitute House Bill 224 amendments and the Substitute Senate Bill 205 re-enactment of Ohio Revised Code § 3509.03 with the Friday before election day close of in-person early voting violates the Equal Protection Clause of the Fourteenth Amendment of the Constitution of the United States; and
ORDERED that permanent injunctive relief is GRANTED to the Plaintiffs as follows: 1. The S tate of O hio t hrough D efendant S ecretary of S tate Jon H usted i s e njoined from implementing and enforcing the Friday before election day close of in-person early voting in Ohio Revised Code § 3509.03 in Amended Substitute House Bill 224 and/or the Substitute Senate Bill 295 enactment of Ohio Revised Code § 3509.03 with the Amended

1

Case: 2:12-cv-00636-PCE-NMK Doc #: 90 Filed: 06/11/14 Page: 2 of 2 PAGEID #: 1867 Substitute H ouse B ill 224 a mendments a nd/or t he S ubstitute S enate B ill 205 r eenactment of Ohio Revised Code § 3509.03; and 2. In-person early vot ing i s r estored on t he t hree days i mmediately p receding al l future election days for all eligible voters. D efendant Secretary of State Husted shall be responsible f or s etting b usiness hour s f or s uch v oting t o pr eserve t he r ight of a ll O hio voters t o c ast hi s or h er vot e w ith s aid hour s t o be uni form t hroughout the S tate a nd suitable to the needs of the particular election in question. IT IS SO ORDERED. /s/ Peter C. Economus UNITED STATES DISTRICT JUDGE
2

 
 Case: 2:12-cv-636 As of: 10/01/2014 11:24 AM EDT 1 of 18
U.S. District Court Southern District of Ohio (Columbus) CIVIL DOCKET FOR CASE #: 2:12−cv−00636−PCE−NMK

CLOSED

Obama for America et al v. Husted et al Assigned to: Senior Judge Peter C. Economus Referred to: Magistrate Judge Norah McCann King Case in other court: Sixth Circuit, 12−04055
Sixth Circuit, 12−04076 Cause: 28:1983 Civil Rights
Plaintiff

Date Filed: 07/17/2012 Date Terminated: 06/11/2014 Jury Demand: None Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question

Obama for America

represented by Donald Joseph McTigue McTigue &McGinnis LLC 545 E. Town Street Columbus, OH 43215 614−263−7000 Fax: 614−263−7078 Email: dmctigue@electionlawgroup.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Katzman Obama for America 130 East Randolph Chicago, IL 60601 312−985−1645 Fax: 312−267−0118 Email: jkatzman@barackobama.com PRO HAC VICE ATTORNEY TO BE NOTICED

John Corey Colombo McTigue &McGinnis LLC 545 E. Town Street Columbus, OH 43215 614−263−7000 Fax: 614−263−7078 Email: ccolombo@electionlawgroup.com ATTORNEY TO BE NOTICED

Mark Alan McGinnis McTigue &McGinnis LLC 545 East Town Street Columbus, OH 43215 614−263−7000 Fax: 614−263−7078 Email: mmcginnis@electionlawgroup.com ATTORNEY TO BE NOTICED

Plaintiff Democratic National Commitee

represented by Donald Joseph McTigue (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Corey Colombo (See above for address) ATTORNEY TO BE NOTICED

Robert F Bauer

Case: 2:12-cv-636 As of: 10/01/2014 11:24 AM EDT 2 of 18

Perkins Coie LLP 700 Thirteenth Street, NW Suite 600 Washington, DC 20005 202−434−1602 Fax: 202−654−6211 Email: rbauer@perkinscoie.com PRO HAC VICE ATTORNEY TO BE NOTICED

Mark Alan McGinnis (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Ohio Democratic Party

represented by Donald Joseph McTigue (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Corey Colombo (See above for address) ATTORNEY TO BE NOTICED

Mark Alan McGinnis (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Jon Husted

represented by Anne Marie Sferra Bricker &Eckler − 2 100 S Third Street Columbus, OH 43215−4291 614−227−2300 Email: asferra@bricker.com TERMINATED: 12/03/2012 LEAD ATTORNEY
Bridget C Coontz Ohio Attorney General's Office Constitutional Offices 30 East Broad Street, 16th Floor Columbus, OH 43215 614−466−2872 Fax: 614−728−7592 Email: bridget.coontz@ohioattorneygeneral.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Nicholas Coglianese Ohio Attorney General − 2 Employment Law Section 30 East Broad Street 23rd Floor Columbus, OH 43215 614−466−1803 Fax: 614−752−4677 Email: ELSReview@ohioattorneygeneral.gov TERMINATED: 05/09/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:12-cv-636 As of: 10/01/2014 11:24 AM EDT 3 of 18

Defendant Attorney General Mike DeWine

James P Schuck Bricker &Eckler − 2 100 S Third Street Columbus, OH 43215−4291 614−227−8839 Fax: 614−227−2390 Email: jschuck@bricker.com TERMINATED: 12/03/2012
Kristopher J Armstrong Ohio Attorney General's Office Constitutional Offices 30 E. Broad St., 16th Floor Columbus, OH 43215 614−466−2872 Fax: 614−728−7592 Email: kristopher.armstrong@ohioattorneygeneral.gov ATTORNEY TO BE NOTICED
Maria J Armstrong Bricker &Eckler, LLP 100 S. Third Street Columbus, OH 43215 614−227−8821 Fax: 614−227−2390 Email: marmstrong@bricker.com TERMINATED: 12/03/2012
Michael Joseph Schuler Ohio Consumers' Counsel 10 West Broad St., Suite 1800 Columbus, OH 43215 (614) 466−8574 Email: schuler@occ.state.oh.us TERMINATED: 12/17/2012 ATTORNEY TO BE NOTICED
William S Consovoy Wiley Rein LLP 1776 K Street, NW Washington, DC 20006 202−719−7000 Fax: 202−719−7049 Email: wconsovoy@wileyrein.com TERMINATED: 12/03/2012 PRO HAC VICE
represented by Anne Marie Sferra (See above for address) TERMINATED: 12/03/2012 LEAD ATTORNEY
Bridget C Coontz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Nicholas Coglianese (See above for address) TERMINATED: 05/09/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:12-cv-636 As of: 10/01/2014 11:24 AM EDT 4 of 18

Defendant County of Cuyahoga, Ohio

Brendan J Morrissey Wiley Rein LLP 1776 K Street, NW Washington, DC 20006 202−719−7000 Fax: 202−719−7163 Email: bmorrissey@wileyrein.com TERMINATED: 12/03/2012 PRO HAC VICE
Elbert Lin Wiley Rein LLP 1776 K Street, NW Washington, DC 20006 202−719−7000 Fax: 202−719−7049 Email: elin@wileyrein.com TERMINATED: 12/03/2012 PRO HAC VICE
James P Schuck (See above for address) TERMINATED: 12/03/2012
Kristopher J Armstrong (See above for address) ATTORNEY TO BE NOTICED
Maria J Armstrong (See above for address) TERMINATED: 12/03/2012
Michael Joseph Schuler (See above for address) TERMINATED: 12/17/2012 ATTORNEY TO BE NOTICED
William S Consovoy (See above for address) TERMINATED: 12/03/2012 PRO HAC VICE

V.
Intervenor Defendant
National Guard Association of the United States

represented by James M Dickerson , Jr. Taft Stettinius &Hollister LLP 425 Walnut Street Suite 1800 Cincinnati, OH 45202 513−357−9491 Fax: 513−381−0205 Email: jdickerson@taftlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Shook Frost Brown Todd LLC One Columbus

Case: 2:12-cv-636 As of: 10/01/2014 11:24 AM EDT 5 of 18

10 W Broad Street Suite 1000 Columbus, OH 43215−3467 614−464−1211 Fax: 614−464−1737 Email: kshook@fbtlaw.com TERMINATED: 09/11/2012 LEAD ATTORNEY

Jill Patricia Meyer Frost Brown Todd LLC − 1 3300 Great American Tower 301 East Fourth Street Cincinnati, OH 45202−4182 513−651−6124 Email: jmeyer@fbtlaw.com TERMINATED: 09/11/2012

Thomas E Wheeler Forst Brown Todd LLC 201 N Illinois St Suite 19000 POBox 44961 Indianapolis, IN 46244 317−2373800 Fax: 317464−1211 Email: twheeler@fbtlaw.com TERMINATED: 09/11/2012 PRO HAC VICE

Intervenor Defendant Association of the U.S. Navy

represented by James M Dickerson , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin Shook (See above for address) TERMINATED: 09/11/2012 LEAD ATTORNEY

Jill Patricia Meyer (See above for address) TERMINATED: 09/11/2012

Thomas E Wheeler (See above for address) TERMINATED: 09/11/2012 PRO HAC VICE

Intervenor Defendant Marine Corps League

represented by James M Dickerson , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin Shook (See above for address) TERMINATED: 09/11/2012 LEAD ATTORNEY

Jill Patricia Meyer (See above for address) TERMINATED: 09/11/2012

Case: 2:12-cv-636 As of: 10/01/2014 11:24 AM EDT 6 of 18

Intervenor Defendant Military Officers Association of America
Intervenor Defendant Reserve Officers Association
Intervenor Defendant National Association for Uniformed Services

Thomas E Wheeler (See above for address) TERMINATED: 09/11/2012 PRO HAC VICE
represented by James M Dickerson , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Shook (See above for address) TERMINATED: 09/11/2012 LEAD ATTORNEY
Jill Patricia Meyer (See above for address) TERMINATED: 09/11/2012
Thomas E Wheeler (See above for address) TERMINATED: 09/11/2012 PRO HAC VICE
represented by James M Dickerson , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Shook (See above for address) TERMINATED: 09/11/2012 LEAD ATTORNEY
Jill Patricia Meyer (See above for address) TERMINATED: 09/11/2012
Thomas E Wheeler (See above for address) TERMINATED: 09/11/2012 PRO HAC VICE
represented by James M Dickerson , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Shook (See above for address) TERMINATED: 09/11/2012 LEAD ATTORNEY
Jill Patricia Meyer (See above for address) TERMINATED: 09/11/2012
Thomas E Wheeler (See above for address)

Case: 2:12-cv-636 As of: 10/01/2014 11:24 AM EDT 7 of 18

TERMINATED: 09/11/2012 PRO HAC VICE

Intervenor Defendant
Non Commissioned Officers Association of the USA

represented by James M Dickerson , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin Shook (See above for address) TERMINATED: 09/11/2012 LEAD ATTORNEY

Jill Patricia Meyer (See above for address) TERMINATED: 09/11/2012

Thomas E Wheeler (See above for address) TERMINATED: 09/11/2012 PRO HAC VICE

Intervenor Defendant Army Reserve Association

represented by James M Dickerson , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin Shook (See above for address) TERMINATED: 09/11/2012 LEAD ATTORNEY

Jill Patricia Meyer (See above for address) TERMINATED: 09/11/2012

Thomas E Wheeler (See above for address) TERMINATED: 09/11/2012 PRO HAC VICE

Intervenor Defendant Fleet Reserve Association

represented by James M Dickerson , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin Shook (See above for address) TERMINATED: 09/11/2012 LEAD ATTORNEY

Jill Patricia Meyer (See above for address) TERMINATED: 09/11/2012

Thomas E Wheeler (See above for address) TERMINATED: 09/11/2012 PRO HAC VICE

Case: 2:12-cv-636 As of: 10/01/2014 11:24 AM EDT 8 of 18

Intervenor Defendant Special Forces Association
Intervenor Defendant U.S. Army Ranger Association, Inc.
Intervenor Defendant AMVETS
Intervenor Defendant National Defense Committee

represented by James M Dickerson , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Shook (See above for address) TERMINATED: 09/11/2012 LEAD ATTORNEY
Jill Patricia Meyer (See above for address) TERMINATED: 09/11/2012
Thomas E Wheeler (See above for address) TERMINATED: 09/11/2012 PRO HAC VICE
represented by James M Dickerson , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Shook (See above for address) TERMINATED: 09/11/2012 LEAD ATTORNEY
Jill Patricia Meyer (See above for address) TERMINATED: 09/11/2012
Thomas E Wheeler (See above for address) TERMINATED: 09/11/2012 PRO HAC VICE
represented by James M Dickerson , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Shook (See above for address) TERMINATED: 09/11/2012 LEAD ATTORNEY
Jill Patricia Meyer (See above for address) TERMINATED: 09/11/2012
Thomas E Wheeler (See above for address) TERMINATED: 09/11/2012 PRO HAC VICE
represented by

Case: 2:12-cv-636 As of: 10/01/2014 11:24 AM EDT 9 of 18

James M Dickerson , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin Shook (See above for address) TERMINATED: 09/11/2012 LEAD ATTORNEY

Jill Patricia Meyer (See above for address) TERMINATED: 09/11/2012

Thomas E Wheeler (See above for address) TERMINATED: 09/11/2012 PRO HAC VICE

Intervenor Defendant Military Order of the World Wars

represented by James M Dickerson , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin Shook (See above for address) TERMINATED: 09/11/2012 LEAD ATTORNEY

Jill Patricia Meyer (See above for address) TERMINATED: 09/11/2012

Thomas E Wheeler (See above for address) TERMINATED: 09/11/2012 PRO HAC VICE

Amicus
ACLJ American Center for Law and Justice

represented by Robert Jason Howard 4130 Linden Ave Suite 304 Dayton, OH 45432−3015 937−262−7600 Fax: 937−262−7601 Email: rjhoward@howardlawoffices.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus County of Cuyahoga

represented by Majeed G. Makhlouf Director of Law Cuyahoga County, Ohio 1219 Ontario Street, 4th Floor Attn: Department of Law Cleveland, OH 44113 216−698−6549 Fax: 216−698−2744 Email: mmakhlouf@cuyahogacounty.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:12-cv-636 As of: 10/01/2014 11:24 AM EDT 10 of 18

V. Intervenor Association of the U.S. Army

represented by James M Dickerson , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Shook (See above for address) TERMINATED: 09/11/2012 LEAD ATTORNEY
Jill Patricia Meyer (See above for address) TERMINATED: 09/11/2012
Thomas E Wheeler (See above for address) TERMINATED: 09/11/2012 PRO HAC VICE

Date Filed 07/17/2012 07/17/2012 07/17/2012
07/18/2012 07/18/2012 07/18/2012 07/20/2012
07/20/2012 07/25/2012

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 350 paid − receipt number: 0648−3723191), filed by OBAMA FOR AMERICA, Ohio Democratic Party, DEMOCRATIC NATIONAL COMMITTEE. [ELECTION ISSUE(S) CITED] (McGinnis, Mark) (Entered: 07/17/2012)
2 MOTION for Preliminary Injunction by Plaintiffs DEMOCRATIC NATIONAL COMMITTEE, OBAMA FOR AMERICA, Ohio Democratic Party. (McGinnis, Mark) (Entered: 07/17/2012)
3 AFFIDAVIT in Support re 2 MOTION for Preliminary Injunction OF DONALD J MCTIGUE filed by Plaintiffs DEMOCRATIC NATIONAL COMMITTEE, OBAMA FOR AMERICA, Ohio Democratic Party. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13) (McGinnis, Mark) (Entered: 07/17/2012)
4 NOTICE by Plaintiffs DEMOCRATIC NATIONAL COMMITTEE, OBAMA FOR AMERICA, Ohio Democratic Party re 2 MOTION for Preliminary Injunction OF FILING OF PROPOSED ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION (McGinnis, Mark) (Entered: 07/18/2012)
5 NOTICE of Appearance by Richard Nicholas Coglianese for Defendants Mike DeWine, Jon Husted (Coglianese, Richard) (Entered: 07/18/2012)
6 NOTICE of Appearance by Michael Joseph Schuler for Defendants Mike DeWine, Jon Husted (Schuler, Michael) (Entered: 07/18/2012)
7 ORDER re 2 MOTION for Preliminary Injunction: The Court orders the following 1) Defendants' Memo Contra due 8/1/2012; 2) Plaintiffs' Reply in Support due 8/8/2012; 3) Parties stipulations and joint evidence due 8/10/2012; 4) Hearing on Motion for Preliminary Injunction will be set for 8/15/2012 @ 9:30A. Signed by Senior Judge Peter C Economus on 7/20/2012. (er1) (Entered: 07/20/2012)
Set/Reset Deadlines as to 2 MOTION for Preliminary Injunction: Responses due by 8/1/2012; Replies due by 8/8/2012; Motion Hearing set for 8/15/2012 @ 09:30 AM before Senior Judge Peter C Economus. (er1) (Entered: 07/20/2012)
NOTICE − The hearing scheduled for 8/15/12 @ 9:30 am will be held in Courtroom 220. (jr1) (Entered: 07/25/2012)

Case: 2:12-cv-636 As of: 10/01/2014 11:24 AM EDT 11 of 18

08/01/2012
08/01/2012 08/03/2012 08/06/2012 08/06/2012 08/07/2012 08/07/2012 08/08/2012 08/08/2012 08/08/2012 08/08/2012 08/08/2012 08/08/2012 08/09/2012

8 MOTION to Intervene by Intervenor Defendants National Guard Association of the United States, Association of the U.S. Navy, Marine Corps League, Military Officers Association of America, Reserve Officers Association, National Association for Uniformed Services, Non Commissioned Officers Association of the USA, Army Reserve Association, Fleet Reserve Association, Special Forces Association, U.S. Army Ranger Association, Inc., AMVETS, National Defense Committee, Military Order of the World Wars, Intervenor Association of the U.S. Army. (Attachments: # 1 Exhibit 1 Memorandum in Opposition to Plaintiffs' Motion for Preliminary Injunction, # 2 Exhibit 2 Motion to Dismiss for Failure to State a Claim, # 3 Text of Proposed Order) (Shook, Kevin) Modified on 8/6/2012 (jr1). (Entered: 08/01/2012)
9 RESPONSE in Opposition re 2 MOTION for Preliminary Injunction filed by Defendants Mike DeWine, Jon Husted. (Coglianese, Richard) (Entered: 08/01/2012)
10 RESPONSE to Motion re 8 MOTION to Intervene , MEMORANDUM IN SUPPORT OF MILITARY GROUPS' MOTION TO INTERVENE, filed by Plaintiffs Democratic National Commitee, Obama for America, Ohio Democratic Party. (McGinnis, Mark) (Entered: 08/03/2012)
11 RESPONSE to Motion re 8 MOTION to Intervene Defendants' Memorandum in Support of the Military Groups' Motion to Intervene filed by Defendants Mike DeWine, Jon Husted. (Coglianese, Richard) (Entered: 08/06/2012)
12 ORDER granting 8 Motion to Intervene. In addition, this Court deems the Intervenors' Memorandum in Opposition to Plaintiff's Motion for Preliminary Injunction and Motion to Dismiss to be filed instanter. Signed by Senior Judge Peter C Economus on 8/6/12. (jr1) (Entered: 08/06/2012)
13 MOTION for Leave to Appear Pro Hac Vice of ROBERT F. BAUER (Filing fee $ 200, receipt number 0648−3750710) by Plaintiffs Democratic National Commitee, Obama for America. (Attachments: # 1 Exhibit Certificate of Good Standing) (McGinnis, Mark) (Entered: 08/07/2012)
14 ORDER granting 13 Motion for leave to appear pro hac vice of Robert F. Bauer on behalf of plaintiffs Obama for America and Demcoratic National Committee conditional on counsel's. Signed by Magistrate Judge Norah McCann King on 8/07/12. (rew) (Entered: 08/07/2012)
15 MOTION for Leave to Appear Pro Hac Vice of Jennifer S. Katzman (Filing fee $ 200, receipt number 0648−3752937) by Plaintiff Obama for America. (Attachments: # 1 Exhibit Certificate of Good Standing) (McGinnis, Mark) (Entered: 08/08/2012)
16 ORDER granting 15 Motion for leave to appear pro hac vice of Jennifer S. Katzman on behalf of plaintiff Obama for America. Signed by Magistrate Judge Norah McCann King on 8/08/12. (rew) (Entered: 08/08/2012)
17 MOTION for Leave to File Amicus Curiae Brief by Amicus American Center for Law and Justice. (Howard, Robert) (Entered: 08/08/2012)
18 Corporate Disclosure Statement by Amicus American Center for Law and Justice. (Howard, Robert) (Entered: 08/08/2012)
19 Amicus Curiae APPEARANCE entered by Robert Jason Howard Amicus American Center for Law and Justice. (Howard, Robert) (Entered: 08/08/2012)
20 REPLY to 9 Response to 2 MOTION for Preliminary Injunction filed by Plaintiffs Democratic National Commitee, Obama for America, Ohio Democratic Party. (McGinnis, Mark) Modified text and added link on 8/10/2012 (er1). (Entered: 08/08/2012)
21 MOTION for Leave to Appear Pro Hac Vice of Thomas E. Wheeler (Filing fee $ 200) by Intervenor Defendants AMVETS, Army Reserve Association, Association of the U.S. Navy, Fleet Reserve Association, Marine Corps League, Military Officers Association of America, Military Order of the World Wars, National Association for Uniformed Services, National Defense Committee, National Guard

Case: 2:12-cv-636 As of: 10/01/2014 11:24 AM EDT 12 of 18

08/09/2012 08/09/2012 08/09/2012 08/09/2012 08/10/2012 08/13/2012
08/13/2012
08/13/2012

Association of the United States, Non Commissioned Officers Association of the USA, Reserve Officers Association, Special Forces Association, U.S. Army Ranger Association, Inc., Intervenor Association of the U.S. Army. (Attachments: # 1 Exhibit A Certificate of Good Standing from the Supreme Court of Indiana, # 2 Exhibit B Certificate of Good Standing from the Supreme Court of Kentucky, # 3 Text of Proposed Order) (Shook, Kevin) (Entered: 08/09/2012)
PHV Filing fee re: 21 $ 200, receipt number COL23506 (pes1) (Entered: 08/09/2012)
22 ORDER granting 17 Motion for Leave to file amicus briefs. In addition, this Court deems the amicus brief (doc. # 19 ) to be filed instanter. Signed by Senior Judge Peter C Economus on 8/9/2012. (jr1) (Entered: 08/09/2012)
NOTICE − The hearing scheduled for 8/15/12 @ 9:30 am has been moved to Courtroom 4 − Judge Smith's courtroom. (jr1) (Entered: 08/09/2012)
24 ORDER granting 21 Motion for leave to appear pro hac vice of Thomas E Wheeleron behalf of defendant−intervenors. Signed by Magistrate Judge Norah McCann King on 8/09/12. (rew) (Entered: 08/13/2012)
23 ORDER − The deadline for filing stipulations and joint evidence is extended to 8/13/12. The parties are permitted to manually file exhibits. Signed by Senior Judge Peter C Economus on 8/10/12. (jr1) (Entered: 08/10/2012)
25 Exhibit List by Intervenor Defendants AMVETS, Army Reserve Association, Association of the U.S. Navy, Fleet Reserve Association, Marine Corps League, Military Officers Association of America, Military Order of the World Wars, National Association for Uniformed Services, National Defense Committee, National Guard Association of the United States, Non Commissioned Officers Association of the USA, Reserve Officers Association, Special Forces Association, U.S. Army Ranger Association, Inc., Intervenor Association of the U.S. Army, Defendants Mike DeWine, Jon Husted, Plaintiffs Democratic National Commitee, Obama for America, Ohio Democratic Party.. (McGinnis, Mark) (Entered: 08/13/2012)
34 PLAINTIFFS' EXHIBITS filed by Intervenor Defendants Army Reserve Association, Association of the U.S. Navy, Fleet Reserve Association, Marine Corps League, Military Officers Association of America, Military Order of the World Wars, National Association for Uniformed Services, National Defense Committee, National Guard Association of the United States, Non Commissioned Officers Association of the USA, Reserve Officers Association, Special Forces Association, U.S. Army Ranger Association, Inc., Plaintiff Democratic National Commitee and Defendant Jon Husted. (Attachments: # 1 Plaintiff's Exhibit 1, # 2 Plaintiff's Exhibit 1−part 2, # 3 Plaintiff's Exhibit 1−part 3, # 4 Plaintiff's Exhibit 2, # 5 Plaintiff's Exhibit 3, # 6 Plaintiff's Exhibit 4, # 7 Plaintiff's Exhibit 5, # 8 Plaintiff's Exhibit 6, # 9 Plaintiff's Exhibit 6−part 2, # 10 Plaintiff's Exhibit 6−part 3, # 11 Plaintiff's Exhibit 7, # 12 Plaintiff's Exhibit 8, # 13 Plaintiff's Exhibit 9, # 14 Plaintiff's Exhibit 10, # 15 Plaintiff's Exhibit 11, # 16 Plaintiff's Exhibit 12, # 17 Plaintiff's Exhibit 13, # 18 Plaintiff's Exhibit 14, # 19 Plaintiff's Exhibit 15, # 20 Plaintiff's Exhibit 16, # 21 Plaintiff's Exhibit 17, # 22 Plaintiff's Exhibit 18, # 23 Plaintiff's Exhibit 19, # 24 Plaintiff's Exhibit 20, # 25 Plaintiff's Exhibit 21, # 26 Plaintiff's Exhibit 22, # 27 Plaintiff's Exhibit 23, # 28 Plaintiff's Exhibit 24, # 29 Plaintiff's Exhibit 25, # 30 Plaintiff's Exhibit 26, # 31 Plaintiff's Exhibit 27, # 32 Plaintiff's Exhibit 28, # 33 Plaintiff's Exhibit 29, # 34 Plaintiff's Exhibit 30, # 35 Plaintiff's Exhibit 31, # 36 Plaintiff's Exhibit 32, # 37 Plaintiff's Exhibit 33, # 38 Plaintiff's Exhibit 34, # 39 Plaintiff's Exhibit 35, # 40 Plaintiff's Exhibit 36, # 41 Plaintiff's Exhibit 37, # 42 Plaintiff's Exhibit 38) (er1) Modified file date on 8/14/2012 (er1). (Entered: 08/14/2012)
35 DEFENDANTS' EXHIBITS by Intervenor Defendants AMVETS, Army Reserve Association, Association of the U.S. Navy, Fleet Reserve Association, Marine Corps League, Military Officers Association of America, Military Order of the World Wars, National Association for Uniformed Services, National Defense Committee, National Guard Association of the United States, Non Commissioned Officers Association of the USA, Reserve Officers Association, Special Forces Association, U.S. Army Ranger Association, Inc., Plaintiffs Democratic National

Case: 2:12-cv-636 As of: 10/01/2014 11:24 AM EDT 13 of 18

08/14/2012 08/14/2012 08/14/2012 08/14/2012 08/14/2012 08/14/2012 08/14/2012 08/14/2012 08/14/2012 08/14/2012
08/15/2012 08/15/2012
08/15/2012 08/15/2012 08/16/2012
08/16/2012

Commitee, Obama for America, Ohio Democratic Party and Defendant Jon Husted. (Attachments: # 1 Defendant's Exhibit 1, # 2 Defendant's Exhibit 2, # 3 Defendant's Exhibit 3, # 4 Defendant's Exhibit 4, # 5 Defendant's Exhibit 5− part 1, # 6 Defendant's Exhibit 5− part 2, # 7 Defendant's Exhibit 6, # 8 Defendant's Exhibit 7, # 9 Defendant's Exhibit 8, # 10 Defendant's Exhibit 9, # 11 Defendant's Exhibit 10, # 12 Defendant's Exhibit 11) (er1) Modified file date on 8/14/2012 (er1). (Entered: 08/14/2012)
26 NOTICE by Defendant Mike DeWine of Substitution of Counsel (Sferra, Anne) (Entered: 08/14/2012)
27 MOTION for Leave to Appear Pro Hac Vice of Brendan J. Morrissey (Filing fee $ 200) by Defendant Mike DeWine. (Sferra, Anne) (Entered: 08/14/2012)
28 MOTION for Leave to Appear Pro Hac Vice of William S. Consovoy (Filing fee $ 200) by Defendant Mike DeWine. (Sferra, Anne) (Entered: 08/14/2012)
29 MOTION for Leave to Appear Pro Hac Vice of Elbert Lin (Filing fee $ 200) by Defendant Mike DeWine. (Sferra, Anne) (Entered: 08/14/2012)
30 ORDER denying without prejudice 27 28 &29 Motions for Leave to Appear Pro Hac Vice of Brendan J. Morrissey, William S. Consovoy &Elbert Lin. Signed by Magistrate Judge Norah McCann King on 8/14/2012. (kjm1) (Entered: 08/14/2012)
31 MOTION for Leave to Appear Pro Hac Vice of William S. Consovoy (Filing fee $ 200) by Defendant Mike DeWine. (Sferra, Anne) (Entered: 08/14/2012)
32 MOTION for Leave to Appear Pro Hac Vice of Elbert Lin (Filing fee $ 200) by Defendant Mike DeWine. (Sferra, Anne) (Entered: 08/14/2012)
33 MOTION for Leave to Appear Pro Hac Vice of Brendan J. Morrissey (Filing fee $ 200) by Defendant Mike DeWine. (Sferra, Anne) (Entered: 08/14/2012)
Filing fee: $ 600.00, receipt number 23539. (rew) (Entered: 08/14/2012)
36 ORDER granting 31 , 32 and 33 Motions for leave to appear pro hac vice of William S Consovoy, Elbert Lin and Brendan J. Morrissey on behalf of defendant Secretary of State Jon Husted. Signed by Magistrate Judge Norah McCann King on 8/14/12. (rew) (Entered: 08/14/2012)
37 MOTION for Leave to File Amicus Brief Concerning Budgetary Implications by Defendant County of Cuyahoga, Ohio, Amicus County of Cuyahoga. (Makhlouf, Majeed) (Entered: 08/15/2012)
38 BRIEF re 37 MOTION for Leave to File Amicus Brief Concerning Budgetary Implications by Amicus County of Cuyahoga. (Attachments: # 1 Exhibit Ex. A, Resolution R2011−0291, Cuyahoga County's Biennial Budget) (Makhlouf, Majeed) (Entered: 08/15/2012)
39 ORDER granting 37 Motion for Leave to File to file an amicus brief. In addition, the Court deems the amicus brief (doc. 38 ) to be filed instanter. Signed by Senior Judge Peter C Economus on 8/15/12. (jr1) (Entered: 08/15/2012)
40 NOTICE by Defendants Mike DeWine, Jon Husted (Attachments: # 1 Exhibit Secretary of State Directive 2012−35) (Coglianese, Richard) (Entered: 08/15/2012)
41 Minute Entry for proceedings held before Senior Judge Peter C Economus: Motion Hearing held on 8/16/2012 re 2 MOTION for Preliminary Injunction filed by Democratic National Commitee, Ohio Democratic Party, Obama for America. (Court Reporter Gina Wells.) (jr1) (Entered: 08/16/2012)
42 Supplemental Memorandum Supporting re 2 MOTION for Preliminary Injunction filed by Plaintiffs Democratic National Commitee, Obama for America, Ohio Democratic Party. (Attachments: # 1 Exhibit Secretary of State Directive 2008−19, # 2 Exhibit Ohio Secretary of State Directive 2010−68, # 3 Exhibit Portions of Ohio House Bill 295, # 4 Exhibit Portions of Franklin Cty Bd of Elections Election Administration Plan, # 5 Exhibit Statements of Secretary Husted Concerning Removal of HB 194 Referendum from Ballot) (McGinnis, Mark) (Entered: 08/16/2012)

Case: 2:12-cv-636 As of: 10/01/2014 11:24 AM EDT 14 of 18

08/17/2012

43 Transcript of Proceedings of Oral Arguments on Preliminary Injunction held on August 15, 2012 before Judge Peter C Economus. Court Reporter/Transcriber Georgina L Wells, Telephone number 614−719−3225. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms − Electronic Availability of Transcripts). Please read this policy carefully.

08/17/2012 08/19/2012 08/19/2012 08/30/2012
08/31/2012
09/04/2012 09/04/2012 09/04/2012 09/05/2012

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 9/7/2012. Redacted Transcript Deadline set for 9/17/2012. Release of Transcript Restriction set for 11/15/2012. (kk2) (Entered: 08/17/2012)
44 Reply re 42 Supplemental − Supporting,, Defendants' Response to Plaintiffs' Supplemental Memorandum by Defendants Mike DeWine, Jon Husted. (Coglianese, Richard) (Entered: 08/17/2012)
45 NOTICE by Plaintiffs Democratic National Commitee, Obama for America, Ohio Democratic Party OF FURTHER DEVELOPMENTS (Attachments: # 1 Exhibit Suspension and Hearing Letter, # 2 Exhibit Tie Vite Decision of August 17, 2012) (McGinnis, Mark) (Entered: 08/19/2012)
46 NOTICE by Plaintiffs Democratic National Commitee, Obama for America, Ohio Democratic Party , CORRECTED NOTICE OF PLAINTIFFS OF FURTHER DEVELOPMENTS (Attachments: # 1 Exhibit Suspension and Hearing Letter, # 2 Exhibit Tie Vote Decision of August 17, 2012) (McGinnis, Mark) (Entered: 08/19/2012)
47 NOTICE of Appearance by James M Dickerson, Jr for Intervenor Defendants AMVETS, Army Reserve Association, Association of the U.S. Navy, Fleet Reserve Association, Marine Corps League, Military Officers Association of America, Military Order of the World Wars, National Association for Uniformed Services, National Defense Committee, National Guard Association of the United States, Non Commissioned Officers Association of the USA, Reserve Officers Association, Special Forces Association, U.S. Army Ranger Association, Inc., Intervenor Association of the U.S. Army (Dickerson, James) (Entered: 08/30/2012)
48 OPINION AND ORDER ON PRELIMINARY INJUNCTION. This Court hereby GRANTS Plaintiffs Obama for America, Democratic National Party, and Ohio Democratic Party's Motion for Preliminary Injunction. (Doc. # 2 .) This Court HEREBY ORDERS that the State of Ohio through Defendant Secretary of State Jon Husted IS ENJOINED from implementing or enforcing Ohio Revised Code § 3509.03 in Amended Substitute House Bill 224 and/or the Substitute Senate Bill 295 enactment of Ohio Revised Code § 3509.03 with the Amended Substitute House Bill 224 amendments; and IT IS FURTHER ORDERED that in−person early voting IS RESTORED on the three days immediately preceding Election Day for all eligible Ohio voters. Signed by Senior Judge Peter C Economus on 8/31/12. (jr1) (Entered: 08/31/2012)
49 NOTICE OF APPEAL as to 48 Memorandum &Opinion, Terminate Motions,,,,,, by Defendants Mike DeWine, Jon Husted. Filing fee $ 455. (Coglianese, Richard) (Entered: 09/04/2012)
USCA Case Number 12−4055 for 49 Notice of Appeal filed by Mike DeWine, Jon Husted. Case Manager − Laura Jones. (jcw1) (Entered: 09/04/2012)
USCA Appeal Fees received $ 455 receipt number COL23809 re 49 Notice of Appeal filed by Mike DeWine, Jon Husted (pes1) (Entered: 09/04/2012)
50 Emergency MOTION to Enforce Judgment by Plaintiffs Democratic National Commitee, Obama for America, Ohio Democratic Party. (Attachments: # 1 Exhibit Directive 2012−40) (McGinnis, Mark) (Entered: 09/05/2012)

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09/05/2012 09/05/2012 09/06/2012 09/07/2012
09/07/2012 09/07/2012 09/10/2012 09/10/2012 09/10/2012 09/10/2012 09/11/2012
09/11/2012 09/12/2012 09/14/2012

51 ORDER of USCA as to 49 Notice of Appeal filed by Mike DeWine, Jon Husted. It is ORDERED that this appeal be, and it hereby is, expedited for briefing and submission. No extensions of time will be granted absent extraordinary circumstances. (sr1) (Entered: 09/05/2012)
52 NOTICE of Hearing on Motion 50 Emergency MOTION to Enforce Judgment : Motion Hearing set for 9/13/2012 @ 10:00 AM before Senior Judge Peter C Economus. The Court ORDERS that Defendant Secretary of State Jon Husted personally attend the hearing. (jr1) (Entered: 09/05/2012)
NOTICE − The hearing scheduled for 9/13/12 @ 10:00 am will be held in Courtroom No. 4, Judge Smith's courtroom. (jr1) (Entered: 09/06/2012)
53 NOTICE OF APPEAL by Intervenor Defendants AMVETS, Army Reserve Association, Association of the U.S. Navy, Fleet Reserve Association, Marine Corps League, Military Officers Association of America, Military Order of the World Wars, National Association for Uniformed Services, National Defense Committee, National Guard Association of the United States, Non Commissioned Officers Association of the USA, Reserve Officers Association, Special Forces Association, U.S. Army Ranger Association, Inc., Intervenor Association of the U.S. Army. Filing fee $ 455, receipt number 0648−3789509. (Dickerson, James) (Entered: 09/07/2012)
54 RESPONSE to Motion re 50 Emergency MOTION to Enforce Judgment and Motion for Stay filed by Defendant Jon Husted. (Attachments: # 1 Exhibit 1) (Consovoy, William) (Entered: 09/07/2012)
55 ORDER − Plaintiffs' response to the Motion for Stay filed by Defendant Husted due by 4:00 pm on 9/10/12. Signed by Senior Judge Peter C Economus on 9/7/12. (jr1) (Entered: 09/07/2012)
56 ORDER − This Court hereby VACATES the Thursday, September 13, 2012 hearing. Signed by Senior Judge Peter C Economus on 9/10/12. (jcw1) Modified on 9/10/2012 to correct the hearing date that is being vacated and to attach the correct order (jcw1). (Entered: 09/10/2012)
Notice of Correction re: 56 Order − Corrected the docket text and order to reflect the proper hearing date being vacated. (jcw1) (Entered: 09/10/2012)
57 RESPONSE to Motion re 50 Emergency MOTION to Enforce Judgment filed by Plaintiffs Democratic National Commitee, Obama for America, Ohio Democratic Party. (Attachments: # 1 Exhibit Mahoning County Press Release, # 2 Exhibit Franklin County Commissioners' letter) (Colombo, John) (Entered: 09/10/2012)
USCA Case Number 12−4076 for 53 Notice of Appeal. Case Manager L− Laura Jones (jcw1) Modified on 9/10/2012 to add case manager information (jcw1). (Entered: 09/10/2012)
58 NOTICE by Intervenor Defendants AMVETS, Army Reserve Association, Association of the U.S. Navy, Fleet Reserve Association, Marine Corps League, Military Officers Association of America, Military Order of the World Wars, National Association for Uniformed Services, National Defense Committee, National Guard Association of the United States, Non Commissioned Officers Association of the USA, Reserve Officers Association, Special Forces Association, U.S. Army Ranger Association, Inc., Intervenor Association of the U.S. Army of Withdrawal of Counsel (Shook, Kevin) (Entered: 09/11/2012)
59 ORDER of USCA as to 53 Notice of Appeal − It is ORDERED that this appeal is expedited for briefing and submission. (jr1) (Entered: 09/11/2012)
60 ORDER denying 54 Motion for Stay filed by Jon Husted. Signed by Senior Judge Peter C Economus on 9/12/12. (jr1) (Entered: 09/12/2012)
61 MOTION for Extension of Time to File Answer re 1 Complaint New date requested 10/22/2012. by Defendants Mike DeWine, Jon Husted. (Attachments: # 1 Text of Proposed Order Proposed Order) (Consovoy, William) (Entered: 09/14/2012)

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09/17/2012 10/01/2012 10/09/2012 10/10/2012 10/26/2012 10/31/2012
11/02/2012
11/06/2012
11/06/2012 11/06/2012

62 ORDER granting 61 MOTION for Extension of Time to File Answer re 1 Complaint. Signed by Senior Judge Peter C Economus on 9/17/12. (jr1) (Entered: 09/17/2012)
63 ORDER of USCA as to 49 &53 Notice of Appeal − It is ORDERED that the motions to file briefs of Amici Curiae are GRANTED. (jr1) (Entered: 10/01/2012)
64 ORDER of USCA as to 49 &53 Notice of Appeals: The Sixth Circuit AFFIRMS the District Court's order granting a preliminary injunction. (er1) (Entered: 10/09/2012)
65 Letter from USCA to all listed attorney's in USCA order 64 re: Case Nos. 12−4055/12−4076 to correct two (2) pages from the decision originally sent on 10/05/2012. (sr) (Entered: 10/10/2012)
66 U.S. Supreme Court Order: re: USCA Appeals 12−4055 &12−4076 (49 and 53). The application for stay presented to Justice Kagan and by her referred to the court is denied. (sr1) (Entered: 10/26/2012)
67 MANDATE of USCA as to 49 Notice of Appeal filed by Mike DeWine, Jon Husted, 53 Notice of Appeal,, filed by Military Order of the World Wars, Military Officers Association of America, AMVETS, National Defense Committee, Special Forces Association, Association of the U.S. Army, Army Reserve Association, Association of the U.S. Navy, National Guard Association of the United States, Reserve Officers Association, National Association for Uniformed Services, Fleet Reserve Association, U.S. Army Ranger Association, Inc., Marine Corps League, Non Commissioned Officers Association of the USA. (sr1) (Entered: 10/31/2012)
68 MOTION for Extension of Time New date requested 12/3/2012. [Consent Motion for Extension of Time to File a Response to the Plaintiffs' Complaint] by Defendants Mike DeWine, Jon Husted, Intervenor Defendants Marine Corps League, Military Officers Association of America, Military Order of the World Wars, National Association for Uniformed Services, National Defense Committee, National Guard Association of the United States, Non Commissioned Officers Association of the USA, Reserve Officers Association, Special Forces Association, U.S. Army Ranger Association, Inc.. (Coglianese, Richard) (Entered: 11/02/2012)
69 MOTION for Extension of Time New date requested 12/3/2012. [Corrected Consent Motion for Extension of Time to File a Response to the Plaintiffs' Complaint by Intervenor Defendants AMVETS, Army Reserve Association, Association of the U.S. Navy, Fleet Reserve Association, Marine Corps League, Military Officers Association of America, Military Order of the World Wars, National Association for Uniformed Services, National Defense Committee, National Guard Association of the United States, Non Commissioned Officers Association of the USA, Reserve Officers Association, Special Forces Association, U.S. Army Ranger Association, Inc., Intervenor Association of the U.S. Army, Defendants Mike DeWine, Jon Husted. (Coglianese, Richard) (Entered: 11/06/2012)
70 ORDER granting 69 Motion for Extension of Time to file a response to the complaint − ext to 12/3/12. Signed by Senior Judge Peter C Economus on 11/6/12. (jr1) (Entered: 11/06/2012)
Set Deadlines/Hearings: AMVETS answer due 12/3/2012; Army Reserve Association answer due 12/3/2012; Association of the U.S. Army answer due 12/3/2012; Association of the U.S. Navy answer due 12/3/2012; County of Cuyahoga, Ohio answer due 12/3/2012; Mike DeWine answer due 12/3/2012; Fleet Reserve Association answer due 12/3/2012; Jon Husted answer due 12/3/2012; Marine Corps League answer due 12/3/2012; Military Officers Association of America answer due 12/3/2012; Military Order of the World Wars answer due 12/3/2012; National Association for Uniformed Services answer due 12/3/2012; National Defense Committee answer due 12/3/2012; National Guard Association of the United States answer due 12/3/2012; Non Commissioned Officers Association of the USA answer due 12/3/2012; Reserve Officers Association answer due 12/3/2012; Special Forces Association answer due 12/3/2012; U.S. Army Ranger Association, Inc. answer due 12/3/2012. (jr1) (Entered: 11/06/2012)

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12/03/2012 12/03/2012 12/05/2012 12/10/2012 12/10/2012
12/21/2012 01/29/2013 01/30/2013 02/14/2013 02/21/2013
03/11/2014 03/18/2014 03/19/2014 03/20/2014 05/01/2014 05/09/2014

71 NOTICE by Defendant Jon Husted of Substitution of Counsel (Coglianese, Richard) (Entered: 12/03/2012)
72 Joint ANSWER to 1 Complaint filed by Mike DeWine, Jon Husted. (Coglianese, Richard) (Entered: 12/03/2012)
73 NOTICE of Hearing: Preliminary Pretrial Conference set for 2/6/2013 @ 1:45 PM in Chambers before Magistrate Judge Norah McCann King. (kjm1) (Entered: 12/05/2012)
74 NOTICE of Change of Address by James M Dickerson, Jr (Dickerson, James) (Entered: 12/10/2012)
75 NOTICE by Intervenor Defendants AMVETS, Army Reserve Association, Association of the U.S. Navy, Fleet Reserve Association, Marine Corps League, Military Officers Association of America, Military Order of the World Wars, National Association for Uniformed Services, National Defense Committee, National Guard Association of the United States, Non Commissioned Officers Association of the USA, Reserve Officers Association, Special Forces Association, U.S. Army Ranger Association, Inc., Intervenor Association of the U.S. Army re 8 MOTION to Dismiss OF WITHDRAWAL OF MOTION TO DISMISS (Dickerson, James) (Entered: 12/10/2012)
76 NOTICE by Defendants Mike DeWine, Jon Husted of Withdrawal of Counsel for Defendants Mike DeWine and Jon Husted (Schuler, Michael) (Entered: 12/21/2012)
77 Joint MOTION to Continue the Filing of the Fed. R. Civ. P. 26(F) Report and Case Management Conference by Defendants Mike DeWine, Jon Husted. (Coglianese, Richard) (Entered: 01/29/2013)
78 NOTICE of HEARING CHANGE: The Preliminary Pretrial scheduled on 2/6/2013 is VACATED and RESCHEDULED on 2/21/13 @ 2:15 p.m. in chambers before Magistrate Judge Norah McCann King. The Rule 26(f) Report shall be filed no later than 2/14/2013. (kjm1) (Entered: 01/30/2013)
79 RULE 26(f) REPORT OF THE PARTIES by Plaintiffs Democratic National Commitee, Obama for America, Ohio Democratic Party. (McGinnis, Mark) (Entered: 02/14/2013)
80 PRELIMINARY PRETRIAL ORDER: Motions to Amend due by 3/31/2013. Rule 26(a)(1) Disclosures due by 3/31/2013. Primary Expert due by 10/31/2013. Rebuttal Expert due by 11/30/2013. Discovery due by 12/31/2013. Dispositive motions due by 1/31/2014. Final Pretrial Conference ready by 5/2014. Signed by Magistrate Judge Norah McCann King on 2/21/2013. (pes1) Removed an event on 2/26/2013 (er1). (Entered: 02/21/2013)
81 NOTICE of Hearing: Status Conference set for 3/18/2014 @ 2:30 PM before Magistrate Judge Norah McCann King. (jr1) (Entered: 03/11/2014)
Minute Entry for proceedings held before Magistrate Judge Norah McCann King: Status Conference held on 3/18/2014. (nmk0) (Entered: 03/19/2014)
82 ORDER. Dispositive motions due by 5/1/2014. Responses due by 5/9/2014; Replies due by 5/16/2014. Signed by Magistrate Judge Norah McCann King on 3/19/2014. (pes1) (Entered: 03/19/2014)
83 NOTICE of Hearing: Final Pretrial Conference set for 8/5/2014 @10:30 AM in Chambers before Senior Judge Peter C Economus. Jury Trial set for 8/19/2014 @8:30 AM − CR/TBD before Senior Judge Peter C Economus. (ds) (Entered: 03/20/2014)
84 MOTION for Summary Judgment by Plaintiffs Democratic National Commitee, Obama for America, Ohio Democratic Party. Responses due by 5/9/2014 (Attachments: # 1 Exhibit, # 2 Text of Proposed Order) (McTigue, Donald) (Entered: 05/01/2014)
85 MOTION to Withdraw as Attorney and Substitution of Lead and Trial Counsel by Defendants Mike DeWine, Jon Husted. (Attachments: # 1 Text of Proposed Order)

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05/09/2014 05/09/2014 05/16/2014 06/11/2014 06/11/2014

(Coglianese, Richard) (Entered: 05/09/2014)
86 ORDER granting 85 Motion to Withdraw as Attorney. Added attorney Bridget C Coontz,Kristopher J Armstrong for Mike DeWine and Jon Husted. Attorney Richard Nicholas Coglianese terminated. Signed by Magistrate Judge Norah McCann King on 5/9/14. (jr1) (Entered: 05/09/2014)
87 RESPONSE to Motion re 84 MOTION for Summary Judgment filed by Defendants Mike DeWine, Jon Husted. (Attachments: # 1 Exhibit, # 2 Exhibit) (Coontz, Bridget) (Entered: 05/09/2014)
88 REPLY to Response to Motion re 84 MOTION for Summary Judgment filed by Plaintiffs Democratic National Commitee, Obama for America, Ohio Democratic Party. (McTigue, Donald) (Entered: 05/16/2014)
89 MEMORANDUM OPINION AND ORDER granting 84 Motion for Summary Judgment. Signed by Senior Judge Peter C Economus on 6/11/2014. (ds) Modified on 6/11/2014 (ds). (Entered: 06/11/2014)
90 JUDGMENT AND PERMANENT INJUNCTION. Signed by Senior Judge Peter C Economus on 6/11/2014. (ds) (Entered: 06/11/2014)

 
 Case: 12-4055 Document: 006111457654 Filed: 10/05/2012 Page: 1

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 12a0356p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________

OBAMA FOR AMERICA; DEMOCRATIC NATIONAL COMMITTEE; OHIO DEMOCRATIC PARTY,

X -

Plaintiffs-Appellees, -

,>

v.

-

-

JON HUSTED, Ohio Secretary of State; MIKE

-

DEWINE, Ohio Attorney General,

-

Defendants-Appellants (12-4055), -

-

NATIONAL GUARD ASSOCIATION OF THE

-

UNITED STATES, et al.

-

Intervenor Defendants-Appellants (12-4076). N

Nos. 12-4055/4076

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 2:12-cv-00636—Peter C. Economus, District Judge.

Decided and Filed: October 5, 2012 Before: CLAY and WHITE, Circuit Judges; HOOD, District Judge.*

_________________

COUNSEL
ON BRIEF: William S. Consovoy, Elbert Lin, Brendan J. Morr issey, J. Michael Connolly, WILEY REIN LLP, Washington, D.C., Richard N. Coglianese, Michael J. Schuler, Lindsay M. Sestile, OHIO ATTO RNEY GENERAL’S OFFICE, Columbus, Ohio, for Appellants in 12-4055. James M. Dickerson, BINGHAM GREENEBAUM DOLL LLP, Cincinnati, Ohio, for Appellantsin 12-4076. Donald J. McTigue, Mark A. McGinnis, J. Corey Colombo, McTIGUE & McGINNIS LLC, Columbus, Ohio, Robert F. Bauer, PERKINS COIE, Wa shington, D.C., Jennifer Katzm an, OBAMA FOR AMERICA, Chicago, Illinois, for Appellees. Lawrence J. Joseph, Washington, D.C., Jay Alan Sekulow, AMERICAN CENTER FOR LAW & JUSTICE, Washington, D.C., Joseph E. Sandler, Elizabeth F. Getman, SANDLER, REIFF, YOUNG & LAMB, P.C., Washington, D.C., Paul J. Gains, MAHONING COUNTY BOARD OF COUNTY

*The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting by designation.
1

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COMMISSIONERS, Youngstown, Ohio, Stephen D. Hartm an, KERGER & HARTMAN, LLC, Toledo, Ohio, KATHLEEN M. CLYDE, Kent, Ohio, f or Amici Curiae.
CLAY, J., delivered the opinion of the court, in which HOOD, D. J., joined. WHITE, J. (pp. 21-29), delivered a separate opinion concurring in part and dissenting in part.
_________________
OPINION _________________
CLAY, Circuit Judge. Defendants Jon Husted, the Secretary of State of Ohio, and Mike DeWine, the Attorney General of Ohio (collectively the “State”), joined by Intervenors representing numerous military service associations (“Intervenors”), appeal from the district court’s order granting Plaintiffs’ motion for a preliminary injunction. The district court enjoined the State from enforcing Ohio Rev. Code § 3509.03 to the extent that it prevents some Ohio voters from casting in-person early ballots during the three days before the November 2012 election on the basis that the statute violates the Equal Protection Clause of the Fourteenth Amendment. For the reasons set forth below, we AFFIRM the district court’s order granting the preliminary injunction.
BACKGROUND
I. Procedural History
On July 17, 2012, Plaintiffs Obam a for Am erica, the Dem ocratic National Committee, and the Ohio Democratic Party filed a complaint in district court against Jon Husted, in his official capacity as Secretary of State of Ohio, and Mike DeWine, in his official capacity as Attorney General of Ohio. Plaintiffs alleged that Ohio Rev. Code § 3509.03 was unconstitutional insofar as it imposes on non-military voters a deadline of 6:00 p.m. on the Friday before Election Day for in-person early voting.1 On the same

1 All references to the election or ElectionDay refer to the November 6, 2012 election. The threeday period prior to Election Day specifically refers to Saturday, November 3, 2012; Sunday, November 4, 2012; and Monday, November 5, 2012. “Military and overseas voters” are those votersidentified in the

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day, Plaintiffs moved for a preliminary injunction preventing the statute’s enforcement. They argued that the relevant statutory provsiions “burden the fundamental right to vote but are not necessary to any sufficiently weighty state interest.” (R. 2, at 2.)
On August 1, 2012, num erous military service associations filed a m otion to intervene, and the district court granted the motion. The State and Intervenors opposed Plaintiffs’ motion for a preliminary injunction. They argued that the State’s interest in providing military voters with added in-person early voting time and the burden on local boards of elections of providing that same extra time for all voters justified imposing a different deadline on military and overseas voters than all other voters.
The district court conducted a hearing on Plaintiffs’ motion on August 15, 2012. The parties filed numerous exhibits, including legislative history, declarations of career military officers and voting experts, and statistical and demographic studies by various governmental agencies and non-governmental organizations. On August 31, 2012, the district court issued an opinion and order granting Plaintiffs’ motion for a preliminary injunction. The district court concl uded that § 3509.03 violated the Equal Protection Clause to the extent that it set a differenitn-person early voting deadline for non-military voters because “the State’s interests are insu fficiently weighty to justify the injury to Plaintiffs.” ___ F. Supp. 2d ___, No. 2:12-cv-00636, 2012 WL 3765060, at *10 (S.D. Ohio Aug. 31, 2012). The distric t court enjoined the enforcement of § 3509.03 and ordered that in-person early voting be available to non-military voters on the same terms as before the enactment of Amended Substitute House Bill 224 and Substitute Senate Bill 295. Id. at 22–23. The preliminary injunction ensures that all Ohio voters—military, overseas, and non-military—are afforded the same opportunity for in-person early voting that was available to them prior to the enactment of § 3509.03.

federal Uniformed and Overseas Citizens Absentee Voting Act of1986, 42 U.S.C. § 1973ff (“UOCAVA”), as amended by the Military and OverseasVoter Empowerment Act, Pub. L. 111-84, 123 Stat. 2190 (2009) (“MOVE Act”), and corresponding sections of theOhio Election Code, Ohio Rev. Code § 3511.01.“Nonmilitary voters” are all other eligible voters.

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The State and Intervenors now appeal the district court’s or der granting a preliminary injunction. On Novem ber 12, 2012, the district court denied the State’s motion to stay its order pending appeal, and tehpreliminary injunction remains in effect.

II. Facts

A. In-Person Early Voting in Ohio

Ohio introduced in-person early voting largely in response to the m yriad

problems faced by voters during the 2004 electi on. During that election, Ohio voters

faced long lines and wait-tim es that, at som e polling places, stretche d into the early

morning of the following day. To prevent similar problems from disenfranchising voters

in the future and to ease the strain ofaccommodating all voters on a single day, the State

established no-fault absentee voting in Ocot ber 2005. The new rules eliminated the need

for absentee voters to have an excuse for not voting on election day. See 2005 Ohio

Laws 40 (Sub. H.B. 234). After the creation of in-person early voting, any registered

voter could cast an absentee ballot at the appropriate board of elections office through

the Monday before the election.

See id. (amending Ohio Rev. Code

§§ 3509.02–3509.04).

The evidence considered by the district ocurt showed that a large number of Ohio voters chose to utilize the new early voting procedures in elections from 2006 through 2010. Early voting peaked during the 2008 election, when approxim ately 1.7 million Ohioans cast their ballots before election day, amounting to 20.7% of registered voters and 29.7% of the total votes cast . In Ohio’s twelve largest counties, approxim ately 340,000 voters, or about 9% of the total votescast in those counties, chose to vote early at a local board of elections office. Using data from seven of Ohio’s largest counties, one study projected that, in 2008, approximately 105,000 Ohioans cast their ballots in person during the final three days before the election. In 2010, approximately 1 million Ohioans voted early, and 17.8% of them chose to cast their ballots in person. In a poll conducted after the 2010 election, 29.6% of earlyvoters reported voting within one week of election day.

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Voters who chose to cast the ir ballots early tended to be m embers of different demographic groups than those who voted on election day. Early voters were “m ore likely than election-day voters to be women, older, and of lower income and education attainment.” (R. 34-31, Pls.’ Ex. 27, at 1.) Data from Cuyahoga and Franklin Counties suggests that early voters were disproportionately African-Ame rican and that a large majority of early in-person votes (82% in Franklin County) were cast af ter hours on weekdays, on the weekend, or on the Monday before the election.
B. Legislative Changes to In-Person Early Voting
On July 1, 2011, Ohio Governor John Kasich signed Amended Substitute House Bill 194, an omnibus bill that made broad changes to Ohio election law. Among other things, the Ohio legislature apparently intended to change the deadlines f or in-person early voting from the Monday before the election to 6:00 p.m. on the Friday before the election. Instead, H.B. 194 created t wo separate and contradictory deadlines: one on Friday and one on Monday. For non-m ilitary voters, Ohio Rev. Code § 3509.03 contained the former Monday deadline, but an am ended § 3509.01 im posed the new Friday deadline. Military and overseas voters found them selves in m uch the sam e position, with § 3511.02 cont aining the former deadline, and an am ended § 3511.10 containing the new one.
In an attempt to correct its mistake, the Ohio General Assembly passed Amended Substitute House Bill 224, which became effective on October 27, 2011. H.B. 224 fixed the inconsistent deadlines in § 3509.03 and § 3511.02, changing the deadlines for all voters to 6:00 p.m. on the Friday before the election. Before the technical corrections in H.B. 224 could take effect, however, apetition with more than 300,000 signatures was filed to put the om nibus election law, H.B. 194, to a referendum . The referendum petition was certified by the Secretary of Satte on December 9, 2011, and pursuant to the Ohio Constitution, the implementation of H.B. 194 was suspended for the 2012 election cycle.
On May 8, 2012, the General Assembly repealed the then-suspended H.B. 194 through Substitute Senate Bill 295. However,neither the organizers of the referendum

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petition nor the Ohio legislature thought to attack or repeal the bill containing the technical changes, H.B. 224, whi ch remained in effect. Therefore, even though the original bill, H.B. 194, was repealed, the technical changes contained in H.B. 224 remained in place, and Ohio voters were still left with inconsistent deadlines. Nonmilitary voters could cast ballots in-person until 6:00 p.m . on the F riday before the election. But m ilitary and overse as voters had two deadlines: Friday at 6:00 p.m . pursuant to § 3511.02, and the close of thepolls on election day pursuant to § 3511.10.
In order to correct this confusion, Defendant Hus ted construed the statute to apply the more generous deadline contained in § 3511.10 to military and overseas voters. Attempts by local boards of elections to provide in-person early voting to non-military voters through the Monday before the electionwere denied by the Secretary of State on the grounds that the statute does not permit it. On August 15, 2012, Defendant Husted issued Directive 2012-35, instructing the local boards of elect ion that they were to maintain regular business hours between October 2, 2012 and November 2, 2012. This directive eliminated the local boards’ discretion to be open on weekends during that period. Between October 2, 2012 and October 19, 2012, the boards must close at 5:00 p.m. During the last two weeks of the election, the boards will remain open until 7:00 p.m. but may not remain open afterwards or on the weekends. The directive does not address office hours on the final three-day period before Election Day, when, according to the statute, only military and overseas voters can cast ballots in person.
DISCUSSION
I. Standard of Review
We review a district court’s grant of a pr eliminary injunction for an abuse of discretion. Chabad of S. Ohio & Congregation Lubavitch v. City of Cincinnati, 363 F.3d 427, 432 (6th Cir. 2004) . While the ultimate decision to grant or deny a prelim inary injunction is reviewed for an abuse of discretion, we review the district court’s legal conclusions de novo and its factual findings for clear error. Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219, 233 (6th Cir. 2011). “Thisstandard of review is ‘highly

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deferential’ to the district court’s decision.” Id. (quoting Certified Restoration Dry Cleaning Network, L.L.C. v. Tenk e Corp., 511 F.3d 535, 541 (6th Cir. 2007)). “The injunction will seldombe disturbed unless the district court relied upon clearly erroneous findings of fact, im properly applied the governing law, or used an erroneous legal standard.” Mascio v. Pub. Emps. Ret. Sys. of Ohio, 160 F.3d 310, 312 (6th Cir. 1998).
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on th e merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance ofthe equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 20 (2008). The district court’s determ ination that a pl aintiff is likely to succeed on the merits is a question of law that we review de novo. Hunter, 635 F.3d at 233.
II. Likelihood of Succeed on the Merits
A. Equal Protection in the Voting Context
The right to vote is a “precious” and “fundamental” right. Harper v. Va. State Bd. of Elections, 383 U.S. 663, 670 (1966). “Other rights,even the most basic, are illusory if the right to vote is undermined.” Wesburry v. Sanders, 376 U.S. 1, 17 (1964);see also Yick Wo v. Hopki ns, 118 U.S. 356, 370 (1886) (finding that the right to vote is “preservative of all rights”). “‘The right to vote is protected in m ore than the initial allocation of the f ranchise. Equal protection applies as well to the m anner of its exercise.’” League of Women Voters v. Brunner , 548 F.3d 463, 477 (6th Cir. 2008) (quoting Bush v. Gore, 531 U.S. 98, 104 (2000)). “[ A] citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.” Dunn v. Blumstein, 405 U.S. 330, 336 (1972). “Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Bush, 531 U.S. at 104–05; see also Wesburry, 376 U.S. at 17 (“Our Constitution leavesno room for classification of people in a way that unnecessarily abridges [the right to vote.]”).

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The Equal Protection Clause applies when a state either classifies voter s in disparate ways, see Bush, 531 U.S. at 104–05 (arbitrary and disparate treatment of votes violates equal protect ion), or places restrictions on the right to vote, see League of Women Voters, 548 F.3d at 478 (voting system that burdens the exercise of the right to vote violates equal protection). The precisecharacter of the state’s action and the nature of the burden on voters will determine the appropriate equal protection standard. See Biener v. Cailo, 361 F.3d 206, 214 (3d Cir. 2004) (“The scrutiny test depends on the [regulation’s] effect on [the plaintiff’s] rights.”).
If a plaintiff alleges only that a state treaet d him or her differently than similarly situated voters, without a corresponding bur den on the fundam ental right to vote, a straightforward rational basis standard of review should be used. See McDonald v. Bd. of Election Comm’rs, 394 U.S. 802, 807–09 (1969) ( applying rational basis to a state statute that prohibited plaintiffs’ access toabsentee ballots where no burden on the right to vote was shown);Biener, 361 F.3d at 214–15 (applying ratoinal basis where there was no showing of a n “infringement on the funda mental right to vote”). On the other extreme, when a state’s classification “severely” burdens the fundamental right to vote, as with poll taxes, strict scrutiny is the appropriate standard. Burdick v. Takushi, 504 U.S. 428, 434 (1992); see also Harper, 383 U.S. at 670 (“We have long been mindful that where fundam ental rights and libertie s are asserted under the Equal Protection Clause, classifications which might invade or restrain them must be closely scrutinized and carefully confined.”).
Most cases fall in between these two extremes. When a plaintiff alleges that a state has burdened voting rights through the disparate treatment of voters, we review the claim using the “flexible standard” outlined in Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992). See Hunter, 635 F.3d at 238 (applying Anderson-Burdick balancing in an equal protection challenge to the counting of provisional ballots). Although Anderson and Burdick were both ballot-access cases, the Supreme Court has confirmed their vitality in a much broader range of voting rights contexts. See Crawford v. Marion Cnty. Election Bd. , 553 U.S. 181, 204 (Scalia, J.,

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concurring.) (“To evaluate a law respecting the right to vote—whether it governs voter qualifications, candidate selection, or the voting process—we use the approach set out in Burdick . . . .”). The Burdick Court stated the standard as follows:
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 Am endments that the plaintiff seeks to vindicate” against “the precise inte rests put forward by the State as justifications for the burden im posed by its rule,” taking into consideration “the extent to which those interests make it necessary to burden the plaintiffs’ rights.”
Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789)). This st andard is sufficiently flexible to accommodate the complexities of state election regulations while also protecting the fundamental importance of the right to vote. There is no “litmus test” to separate valid frominvalid voting regulations; courts must weigh the burden on voters against the state’s asserted justifications and “m ake the ‘hard judgm ent’ that our adversary system demands.” Crawford, 553 U.S. at 190 (Stevens, J., announcing the judgment of the Court).
The district court applied the Anderson-Burdick standard and ulti mately concluded that the justifications profferedby the State were insufficient to outweigh the burden on Plaintiffs’ voting rights. Instead of theAnderson-Burdick standard, the State and Intervenors urge us to apply a rational basis standard of review to the early voting restriction at issue. Because Plaint iffs’ complaint alleges a straightforward equal protection violation, they argue, a straight forward equal protection analysis should follow. However, when a state regulation isfound to treat voters differently in a way that burdens the fundam ental right to vote, the Anderson-Burdick standard applies. See Hunter, 635 F.3d at 238; see also Clements v. Fashing , 457 U.S. 957, 965 (1982) (rejecting the assertion that traditional equal protection principles should automatically apply in the voting rights context “without firtsexamining the nature of the interests that are affected and the extent of the burden”).
The State and Intervenors argue that theAnderson-Burdick standard is applicable only when a state regulation is alleged to have violated the free association and due

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process guarantees of the First and FourteenthAmendments, not when a plaintiff alleges only an equal protection violation. The Stateseeks to disconnect and isolate these areas of constitutional law as they apply to voting rights, but its approach would create inflexible doctrinal silos. The Suprem e Court in Anderson explicitly imported the analysis used in equal protection cases to evaluate voting rights challenges brought under the First Amendment, see Anderson, 460 U.S. at 786 n.7, thuscreating a single standard for evaluating challenges to voting restrictions. 2 The Suprem e Court confirmed this approach in Crawford by directly connecting its equa l protection voting rights jurisprudence in Harper v. Va. State Bd. of Elections , 383 U.S. 663 (1966), with Anderson and Burdick, and finally applying the standard derived from those cases to a state statute allegedly burdening the right to vote. See Crawford, 553 U.S. 181, 189–91. Plaintiffs have demonstrated that their right to vote is unjustifi ably burdened by the changes in Ohio’s early voting regim e.3 The Anderson-Burdick standard therefore applies.
The State relies heavily onMcDonald v. Bd. of Election Comm’rs, 394 U.S. 802 (1969), for the proposition that rational basis is the appropriate standard when a state denies absentee ballots to som e citizens and not others. In McDonald, unsentenced Illinois inmates were denied access to absentee ballots because they were not among the categories of voters that were provided those ballots under Illinois law.Id. at 803. The Court applied a rational ba sis standard of review, reasoning that the state had not classified the inmates based on race or wealth, nor was there any evidence “in the record

2 The Anderson Court stated that it based its “conclusions directly on the First and Fourteenth Amendments” and did not “engage in a separate Equal Protection Clause analysis.” Anderson, 460 U.S. at 786 n.7. The Court did not need toconduct a separate equal protection analysis because it had already incorporated that analysis into its new “flexible standard.” The Court continued, “We rely, however, on the analysis in a num ber of our prior election cas es resting o n the Equal Protection Clause of the Fourteenth Amendment.” Id. (citing Williams v. Rhodes, 393 U.S. 23 (1968); Bullock v. Carter, 405 U.S. 134 (1972); Lubin v. Panish, 415 U.S. 709 (1974); Ill. Elections Bd. v. Socialist Workers Party, 440 U.S. 173 (1979)).
3 Plaintiffs’ complaint alleges that the State’s disparate treatment of non-military voters burdens their fundamental right to vote, and that this burden violates equal protection. (See R. 1, Pls.’ Compl., at ¶¶ 6, 12.) The State would presumably agree that if Plaintiffs had challenged the restriction based solely on the First Amendment, the Anderson-Burdick standard would apply. The State cannot escape that standard by asserting that not only does the restriction burden Plaintiffs’ right to vote, but it also does so disparately.

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to indicate that the Illinois statutory sche me has an im pact on appellants’ ability to exercise the fundamental right to vote.” Id. at 807. The Court found no f undamental right to receive an absentee ballot as sucha, nd stated, “[W]e cannot lightly assume, with nothing in the record to support such an assumption, that Illinois has in fact precluded appellants from voting.” Id. at 808. TheMcDonald plaintiffs failed to make out a claim for heightened scrutiny because they had presented no evidence to support their allegation that they were being prevented fromvoting. See O’Brien v. Skinner, 414 U.S. 524, 529 (1974) (“Essentially the Court’s disposition of the claims in McDonald rested on failure of proof.”); Goosby v. Osser, 409 U.S. 512, 520–22 (finding that McDonald itself suggested a different result if plaintiffs had presented evidence that the state was effectively preventing them from voting).
On the contrary, Plaintiffs introduced extensive evidence that a significant number of Ohio voters will in fact be preculded from voting without the additional three days of in-person early voting. (See, e.g., R. 34-32, Pls.’ Ex. 28, at2.) The district court credited statistical studi es that estim ated approximately 100,000 Ohio voters would choose to vote during the three-day period before Election Day, and that these voters are disproportionately “women, older, and of lower incom e and education att ainment.” 2012 WL 3765060, at *3. The district court concluded that the burden on Plaintiffs was “particularly high” because their members, supporters, and constituents represent a large percentage of those who participated in early voting in past elections. Id. at 15. The State did not dispute the evidence presented by Plaintiffs, nor did it offer any evidence to contradict the district court’s findings of fact. Id. Plaintiffs did not need to show that they were legally prohibi ted from voting, but only that “burdened voters have few alternate means of access to the ballot.” Citizens for Legislative Choice v. Miller, 144 F.3d 916, 921 (6th Cir. 1998) (citing Burdick, 504 U.S. at 436–37).
The State argues that the burden on non-m ilitary voters is slight because they have “ample” other means to cast their ballots, including by requesting and mailing an absentee ballot, voting in person prior to the final weekend before Election Day, or on Election Day itself. However, the districct ourt concluded that because early voters have

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disproportionately lower incom es and less education than election day voters, and because all evening and weekend voting hours prior to the final weekend were eliminated by Directive 2012-35, “thousands of voters who would have voted during those three days will not be able to exercise their right to cast a vote in person.” 2012 WL 3765060, at *7. Based on the evidence in tehrecord, this conclusion was not clearly erroneous. Because the district court found that Plaintiffs’ right to vote was burdened, it properly applied the Anderson-Burdick standard.4 Therefore, if Plaintiffs can show that the State’s burden on their voting rights is not sufficiently justified, they are likely to succeed on their claim that the State has violated the Equal Protection Clause.
B. Ohio’s Justifications
The State offers two justifications foreliminating in-person early voting for nonmilitary voters during the three days bef ore Election Day. First, it asserts that local county boards of elections are too busy preparing for Election Day to accommodate early voters after 6:00 p.m. on the Friday before theelection. Second, the State claims that the unique challenges faced by m ilitary service m embers and their fam ilies justify maintaining in-person early voting for them but not for other Ohio voters.
The State correctly argues that its two justifications are relevant to two separate aspects of the equal protection analysis: the f irst justification—the burden on local boards of elections—should be considered in relation to the State’s restriction of voting rights, while the second justification—the need to accommodate military voters and their families—should be considered in relation tothe State’s disparate treatment of military and non-military voters. See State’s Br. 46 n.3. These two strands are part of the same equal protection analysis. If the State m erely placed “nonsevere, nondiscr iminatory restrictions” on all voters, the restrictions would survive if they could be sufficiently justified. See Crawford, 553 U.S. at 190 (discussing the application of the Anderson-

4 Intervenors cite to several cases purportedly applying a rational basis standard to sim ilar election regulations, but these cases were eitherdecided before Anderson and Burdick, see, e.g., Prigmore v. Renfro, 356 F. Supp. 427 (N.D. Ala. 1972), or dealt with generally applicable, nondiscrim inatory election regulations, see Gustafson v. Ill. State Bd. ofElections, No. 06-C-1159, 2007 WL 2892667 (N.D. Ill. Sept. 30, 2007).

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Burdick standard to “reasonable, nondiscriminatory restrictions”). On the other hand, if the State merely classified voters disparately but placed no restrictions on their right to vote, the classification would survive if it had a rational basis. See McDonald, 394 U.S. at 807–09 (applying rational basis reviewwhere no burden on the right to vote was shown). However, the State has done both; it has classified voters disparately and has burdened their right to vote. Therefore, both justifications proffered by the State must be examined to determ ine whether the challenged statutory schem e violates equal protection. We will address each proposed justification in turn.
1. Burden on Local Boards of Elections
The State contends that halting in-person early voting at 6:00 p.m. on the Friday before the election is necessary to give local county boards of elections enough time to prepare for Election Day. The State introduced the affidavit of Deputy Assistant Secretary of State Matthew Dam schroder, who explained the myriad tasks that the boards must complete during the Saturday, Sunday, and Monday before the election. Among these duties are: (1) validating, s canning, and tabulating absentee ballots that have been cast in-person or received by mail prior to the final weekend, (2) securing all the necessary ballots, instruction cards, registration forms, and other materials for use by voters, (3) ensuring that each polling place has the proper voting equipment, tables, chairs, and signs, (4) ensuring that each polling place is accessible and m aking any temporary improvements that are necessary, such as installing ramps, (5) preparing the official lists of registered voters, including notations for those voters who have already requested absentee ballots, and (6) handling any last-minute issues that arise, including moving polling places and replacing poll workesrwho are suddenly unable to serve.S(ee R. 35-9, Defs.’ Ex. 8, at 3.)
Granted, the list of responsibilities of the borads of elections is long, and the staff and volunteers who prepare for and adm inister elections undoubtedly have much to accomplish during the final few days before the election. But the State has shown no evidence indicating how this election will be more onerous than the num erous other elections that have been successfully administered in Ohio since early voting was put

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into place in 2005. During that tim e, the Ohio boards of elections have effectively conducted a presidential election and a gubernaotrial election, not to mention many other statewide and local elections, all while simultaneously handling in-person early voting during the three days prior to the election. The State has not shown that any problems arose as a result of the added responsibilities of administering early voting, and in fact, it seems that one of the primary motivations behind instituting early voting was to relieve local boards of the strain caused byall voters casting their ballots on a single day. See League of Women Voters, 548 F.3d at 477–78 (describing the many problems faced by voters during the November 2004 election in Ohio, including extremely long lines and wait-times on Election Day).
The district court considered evidence from several of Ohio’s counties that contradicts the State’s assertions. Oh io’s most populous county, Cuyahoga County, asserted that maintaining in-person early voting would actually alleviate some of its burden by spreading out the demand for voting over more days, thus reducing lines and wait times at polling places on Election Day.Further evidence showed that several more Ohio counties have already allocated funding for early voting, thus allaying conce rns about the financial hardship that early voting might cause. While these counties cannot speak for all of Ohio’s counties, the Stateintroduced no specific evidence to refute any of their assertions, nor has it suggested that the experience of these counties is unique.
Under the Anderson-Burdick standard, we m ust weigh “t he 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 m ake it necessary to burden the plaintiff’s rights.” Burdick, 504 U.S. at 434 (em phasis added). The State must propose an “interest sufficiently weighty to justify the limitation.” Norman v. Reed, 502 U.S. 279, 288–89 (1992). The burden on Plaintiffs ’ voting rights is surely real, as the district court found, but the elimination of in-person early voting during the three-day period prior to the election does not absolutely prohibit early vot ers from voting. However, because early voters tendto be members of demographic groups that may be unable to vote on Election Day or dunrig the workday at local boards of elections

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because of work schedules, their ability to cast a ballot is impeded by Ohio’s statutory scheme.6 The burden on non-military Ohio voters is not severe, but neither is it slight.
The State’s proffered interest in smooth election adm inistration must be “sufficiently weighty” to just ify the elim ination of in-person early voting for nonmilitary voters during the three-day period in question. 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 t he restriction. See Burdick, 504 U.S. at 434. However, Ohio’s statutory scheme is not generally applicable to a ll voters, nor is the State’s justif ication sufficiently “important” to excuse the discriminatory burden it has placed on some but not all Ohio voters. The State advances onyl a vague interest in the smooth functioning of local boards of elections. The State si mply indicates that allowing in-person early voting, as was done in the past, “ could make it much more difficult for the boards of elections to prepare for Election Day.” (R. 35-9, Defs.’ Ex. 8, at 3 (emphasis added).) With no evidence that local boards of elections have struggled to cope with early voting in the past, no evidence that they m ay struggle to do so during the Novem ber 2012 election, and faced with several of those verylocal boards in opposition to its claims, the State has not s hown that its regulatory interest in sm ooth election adm inistration is “important,” much less “sufficiently weighty” to justify the burden it has placed on nonmilitary Ohio voters.
2. Unique Challenges to Military Service Members and Their Families
The State’s asserted goal of accommodating the unique situation of members of the military, who may be called away at a moment’s notice in service to the nation, is certainly a worthy and commendable goal. However, while there is a compelling reason to provide more opportunities for m ilitary voters to cast their ballots, there is no

6 The Equal Protection Clause permits states to enact neutrally applicable laws, even if the impact of those laws falls disproportionately on a subset of the population. See, e.g., Crawford, 553 U.S. at 207 (Scalia, J., concurring) (citingWashington v. Davis, 426 U.S. 229, 248 (1976)). However, Ohio’statutory scheme is self-evidently not neutrally applicable; it restricts the rights of some voters and not others.

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corresponding satisfactory reason to preven t non-military voters f rom casting their ballots as well.
Federal and state law makes numerous exceptions and special accommodations for members of the military, within the voting context and without, and no one argues that these exceptions are somehow constitutionally suspect. By and large, these statutes and regulations—from UOCAVA and the MOVE Act to the Uniform ed Services Employment and Reemployment Act—are based on highly relevant distinctions between service members and the civilian population, and they confer benefits accordingly. For example, UOCAVA’s accommodations for military and overseas voters are based almost entirely on the difficulties that arise from being physically located outside the U nited States. To address com munication difficulties, Ohio law perm its absent military and overseas voters to request an absentee ballo t by mail, fax, email, or in person, while other voters may only do so by mail or in person. Ohio Rev. Code. §§ 3509.03, 3509.05, 3511.04. To account for inconsistencies and delays in foreign mail systems, UOCAVA, as amended by the MOVE Act, requires states to provide absentee ball ots to absent military and overseas voters at least 45 days prior to an election. 42 U.S.C. § 1973ff1(a)(8). These special accommodations are tailored to address the problems that arise from being overseas.
Providing more time for military and overseas voters to cast their ballots inperson is not a response to the problem of these vot ers being absent, because absent voters obviously cannot cast ballots in person. Rather, the State argues that these voters need more time to vote early because they could be called away from the jurisdiction in an emergency with little notice. (See R. 35-8, Defs.’ Ex. 7; R.35-10, Defs.’ Ex. 9.) We acknowledge the difficult circumstances of members of the military and their families, who constantly face the possibility of a sudden and unexpected de ployment, and we admire their dedication and sacrifice. For that reason, Ohio’s commitment to providing as many opportunities as possible for service members and their families to vote early is laudable. However, the State has offered no justification for not providing similarly situated voters those same opportunities. See S.S. v. E. Ky. Univ., 532 F.3d 445, 457 (6th

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Cir. 2008) (“In e ssence, a State must ‘treat similarly situated individuals in a sim ilar manner.’” (quoting Buchanan v. City of Bolivar, 99 F.3d 1352, 1360 (6th Cir. 1996)).

The State asserts that military and overseas voters are not similarly situated to other Ohio voters for equal protection purposes. “The Equal Protection Clause does not forbid classifications. It sim ply keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (em phasis added); see also TriHealth, Inc. v. Bd. of Comm’rs , 430 F.3d 783, 790 (6th Cir. 2005) (finding that two groups of hospitals were not similarly situated for equal protection purposes becau se “they differ[ed] in several m aterial respects”). In m any respects, absent m ilitary and overseas voters are not sim ilarly situated to other Ohio voters. Typically, theri absence from the country is the factor that makes them distinct, and this is reflected in the exceptions and special accommodations afforded to these voters under federal and state law.

With respect to in-person early voting, however, there is no relevant distinction between the two groups. The State argues that military voters need extra early voting time because they could be suddenly deployed. But any voter could be suddenly called away and prevented from voting on Election Day. At any time, personal contingencies like medical emergencies or sudden business trips could ari se, and police officers, firefighters and other first responders could be suddenly called to serve at a moment’s notice. There is no reason to provide these voters with fewer opportunities to vote than military voters, particularly when there isno evidence that local boards ofelections will be unable to cope with more early voters. While we readily acknowledge the need to provide military voters more time to vote, w e see no corresponding justif ication for giving others less time.

The State and Intervenors worry about the logical extensions and practical

implications of Plaintiffs’ position. If states are forced to provide t

he same

accommodations to every voter that they currently provide to m ilitary and overseas

voters, such as added flexibility and extra time, states may simply eliminate these special

accommodations altogether. (See R. 35-10, Defs.’ Ex. 9, at 5.) However, virtually all

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of the special voting provisions in federal and Ohio law address problem s that arise when military and overseas voters are absent from their voting jurisdictions. See Doe v. Walker, 746 F. Supp. 2d 667, 670–71 (D. Md. 2010) (describing the purpose of the MOVE Act as facilitating the receiving and sending of absentee ballots fromoverseas). They are not similarly situated to all other voters in this respect, and states are justified in accommodating their particular needs. With respect to in-person voting, the two groups are similarly situated, and the State has not shown that it would be burdensome to extend early voting to all voters. Its argument to the contrary is not borne out by the evidence. See supra Part II.B.1.
Equally worrisome would be the result if states were perm itted to pick and choose among groups of similarly situated voters to dole out special voting privileges. Partisan state legislatures could give extra early voting time to groups that traditionally support the party in power and impose corresponding burdens on the other party’s core constituents. See Clingman v. Beav er, 544 U.S. 581, 603 (2005) (O’Connor, J., concurring) (“[P]articularly where [voting restrictions] have discriminatory effects, there is increasing cause for concern that those in power may be using electoral rules to erect barriers to electoral competition.”). To avoid this dangerous result, cuorts must carefully weigh the asserted injury against the “per cise interests” proffered by the State. Burdick, 504 U.S. at 434. Although the State argues thait has justifiably given more early voting time to military and overseas voters, in fact, the time available to those voters has not changed and will not be af fected by the district court’s order. Rather, the State must show that its decision to reduce the early voting time of non-military voters is justified by a “sufficiently weighty” interest. The State has propose d no interest which would justify reducing the opportunity t o vote by a considerable segm ent of the voting population.
Having found that neither interest proposed by the State is sufficient to justify the limitation on in-person early voting imposed on all non-military Ohio voters, we find that Plaintiffs are likely to succeed on their claim that Ohio Rev. Code § 3509.03, as implemented by the Ohio Secretary of State, violates the Equal Protection Clause.

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III. Equitable Factors
When a party seeks a prelim inary injunction on the basis of a potential constitutional violation, “the likelihood of success on the m erits often will be the determinative factor.” Jones v. Caruso, 569 F.3d 258, 265 (6th Cir. 2009). W e have concluded that Plaintiffs are likely to succ eed on the m erits of their equal protection challenge, but we nevertheless address the rem aining three factors of the preli minary injunction test. “A plaintiff seeking a pre liminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harmin the absence of preliminary relief, that the balance ofequities tips in his favor, and that an injunction is in the public interest.” Winter, 555 U.S. at 20. The equitable factors of the preliminary injunction test also weigh in favor of granting the prelim inary injunction.
Plaintiffs, their m embers and constituents, and all non-m ilitary Ohio voters would be irreparably injured absent a preliminary injunction. “A plaintiff’s harm from the denial of a prelim inary injunction is irreparable if it is not fully com pensable by monetary damages.” Tenke Corp., 511 F.3d at 550. W hen constitutional rights are threatened or impaired, irreparable injury is presumed. See ACLU of Ky. v. McCreary County, Ky., 354 F.3d 438, 445 (6th Cir. 2003). A restriction on the fundamental right to vote therefore constitutes irreparable injury. See Williams v. Salerno, 792 F.2d 323, 326 (2d Cir. 1986) (finding that the denial of the right to vote is “irreparable harm”).
The balance of equities and the public interest also weigh in Plaintiff’s favor. The burden on non-military Ohio voters’ ability to cast ballots, particularly when many of those voters will likely be unable to vote on Election Day or during the day at local boards of elections because of work schedules, outweighs any corresponding burden on the State, which has not shown that local boards will be unable to cope with three extra days of in-person early voting—as they havesuccessfully done in past elections. While states have “a strong interest in their abilityto enforce state election law requirements,” Hunter, 635 F.3d at 244, the public has a “strong itnerest in exercising the ‘fundamental political right’ to vote.” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (quoting Dunn, 405 U.S. at 336). “That interest is best serevd by favoring enfranchisement and ensuring that

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qualified voters’ exercise of their right to vote is successful.” Hunter, 635 F.3d at 244. The public interest theref ore favors permitting as m any qualified voters to vote as possible. Because the district court pr operly found that the equitabl e factors favor Plaintiffs, its decision to issue a preliminary injunction was appropriate.
IV. District Court’s Remedy
The State argues that the district court’s remedy was overbroad because it could be read to affirmatively require the Stateto mandate early voting hours during the threeday period prior to the election. W e do not read the district court’s order in this way. The order clearly r estores the status quo ante, returning discretion to local boards of elections to allow all Ohio voters to vote during Saturday, November 3, 2012; Sunday, November 4, 2012; and Monday, Novem ber 5, 2012. Because Ohio Rev. Code § 3509.03 is unconstitut ional to the extent that it prohibits non-m ilitary voters from voting during this period, the State is enjoined from preventing those vot ers from participating in early voting. But the State is not affirmatively required to order the boards to be open for early voting. Unde r the district court’s order, the boards have discretion, just as they had before the enactment of § 3509.03. Th e district court’s remedy was therefore appropriate.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s order gr anting a preliminary injunction.

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__________________________________________________
CONCURRING IN PART, DISSENTING IN PART __________________________________________________
HELENE N. WHITE, Circuit Judge (concurring in part and dissenting in part). Except with respect to the remedy, I join inthe affirmance but arrive there by a different route.
I
First, I think it clear that the elimination of non-UOCAVA voters’ access to inperson absentee ballots after 6 p.m. the Friday before the election was not a fluke, but rather the considered intent of a majority of Ohio’s legislators.
A In enacting H.B. 1941 and H.B. 2242 the Ohio General Assembly attempted to treat all voters equally by imposing a uniform in-person absentee-voter deadline. H.B. 194 included a new section, 3509.01(B)(3),3 imposing the 6 p.m. Friday deadline for inperson absentee voters, but neglected to am end parallel sect ions 3509.03(I) and 3511.02(C)(12), which permitted non-UOCAVA and UOCAVA voters to obtain and submit in-person absentee ballots at their local election boards until the close ofregular business the day be fore election day (PID 418-19, 421, 436). The prior statute also contained a provision that applied only to UOCAVA voters, section 3511.10, allowing them to obtain and vote by in-person absenete ballot until the polls close on election day. The legislature apparently caught this provision, and amended that section in H.B. 194, placing UOCAVA voters on the same footing as non-UOCAVA voters by allowing them in-person absentee-voting “during the tim e that absent voter’s ballots m ay be cast in person before an election.” (PID 441) After the legislature realized that it had failed to
1Amended Substitute House Bill Number 194, 2011 Ohio Laws 40. 2Amended Substitute House Bill Number 224, 2011 Ohio Laws 46. 3Ohio Rev. Code § 3509.01(B)(3).

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amend existing provisions that permitted voters to obtain and vote by in-person absentee ballots through the Monday before election day, it passed H.B. 224 by unanimous vote and amended sections 3509.03(I) and 3511.02(C)(12) to m ake all deadlines uni form (PID 580, 590, 974, 993). Thus, the combined effect of H.B. 194 and H.B. 224 was to eliminate weekend voting for everyone; the only difference between UOCAVA and nonUOCAVA voters was that for non-UOCAVA voters only one section of the prior law required amendment, and for UOCAVA voters two sections required amendment, one of which was amended by H.B. 194 and the other by H.B. 224. W hen H.B. 194 was stayed by the referendum certification and later repealed by S.B. 295,4 the provision of H.B. 194 that added the Friday 6 p.m. deadline was no longer effective, but the original versions of sections 3509.03(I) and 3511.02(C)(12) had been amended by H.B. 224 to reflect the Friday deadline, and the effect ofthat statute was not suspended. Further, the amendment to section 3511.10 that had m ade UOCAVA absente e-voting hours consistent with the new Friday deadline was also suspended, resulting in the reinstatement of the language allowingUOCAVA absentee-voting through election day and a conflict between the two provisions relating to UOCAVA voters — the original version providing for in-person absentee voting until the polls close, and the H.B. 224 deadline that corresponded to the sam e H.B. 224 non-UOCAVA deadline of 6 p.m. Friday (PID 791-93, 804-05, 809-10).

When considering H.B. 295, the legislature understood that sections 3509.03(I)

and 3511.02(C)(12) had been amended by H.B. 224, not H.B. 194, and debated whether

to repeal H.B. 224 as well. The vote was divided along party line

s. Thus,

notwithstanding assertions to the contrary, there is no question that the failure to repeal

H.B. 224 at the sam e time H.B. 194 was repealed was not inadvertent. That is, the

legislature knew that the net effect of repealing H.B. 194 and enacting S.B. 295 would

be that the Friday deadlines of H.B. 224 woudl survive the repeal of H.B. 194. It is less

clear, however, whether the legislature was aware that another provision of the former

statute, section 3511.10, had not been am ended by H.B. 224, but by H.B. 194, and

4Substitute Senate Bill Number 295, 2012 Ohio Laws 105.

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therefore that pr ovision would continue in its unam ended state and provide for a conflicting end-of-election-day deadline for i n-person absentee voting by UOCAVA voters (PID 809-10).
B
Section 3509.03(I) ends in-person non-UOCAVA absentee voting at 6 p.m. the Friday before election day. It is silent regarding all other hours and days for in-person absentee voting once voting begins, except that secti on 3501.10(B) requires election offices to remain open until 9 p.m. on the last day of registration. The statute does not prohibit a county board of elections from permitting in-person absentee voting in the evenings or during the weekends preced ing the final pre-election-day weekend. Nevertheless, Secretary Husted issued a directive setting m andatory hours and forbidding local elections offices from maintaining night and weekend hours for nonUOCAVA voters.5 This directive is incorporated in the voting restrictions plaintif fs challenge and the court ruled unconstitutional. Theref ore, I consider both section 3509.03(I) and the Secretary’s directive in considering the burden on non-U OCAVA voters.
II
There is no constitutional right to an absentee ballot. T his is made clear in McDonald v. Board of Election Commissioners , 394 U.S. 802 (1969), Prigmore v. Renfro, 356 F. Supp. 427 (N.D. Ala. 1972),summ. aff’d, 410 U.S. 919 (1973), O’Brien v. Skinner, 414 U.S. 524 (1974), and Goosby v. Osser , 409 U.S. 512 (1973). The

5Secretary Husted directed all counties to adopt the following regular business hours:
• 8:00 a.m. to 5:00 p.m., Tuesday through Friday, from October 2, 2012 through October 5, 2012; • 8:00 a.m. to 9:00 p.m., Tuesday, October 9, 2012; [mandated by Section 3501.10(B)] • 8:00 a.m. to 5:00 p.m., Wednesday through Friday, from October 10, 2012 through October 12, 2012; • 8:00 a.m. to 5:00 p.m., Monday through Friday, from October 15, 2012 through October 19, 2012; • 8:00 a.m. to 7:00 p.m., Monday through Friday, from October 22, 2012 through October 26, 2012; • 8:00 a.m. to 7:00 p.m., Monday through Thursday, [from] October 29, 2012 through November 1, 2012; and • 8:00 a.m. to 6:00 p.m., Friday, November 2, 2012.
Directive 2012-35 (PID 1481) (internal footnotes omitted). Any voter in line at the end of these regular business hours must be permitted to make his or her application and vote. Id.

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Constitution protects the right to vote, and it isonly when there is no alternative vehicle

for voting that the Suprem e Court has found a right to an absentee ba llot. Compare

Skinner, 414 U.S. at 529-31 and Goosby, 409 U.S. at 519-23 with McDonald, 394 U.S.

at 807-09 and Prigmore, 356 F. Supp. 427. These absentee-ballot cases appl ied the

rational-basis test to claim s of entitlement to an absentee ballot as well as to equal

protection challenges based on differentiations between voters with regard to absentee

ballots, and recognized the state interest in regulating elections. One m

ay

understandably ask, then, how Ohio’s restrictions on in-person absentee voti ng can

violate the Constitution. For me, the answer isthat the Supreme Court has since applied the Anderson/Burdick6 balancing test in evaluating a state’s interest in the regulation of

elections, and that in applying that test, it is proper to look at the facts on the ground in

Ohio.

III

The instant case raises several preliminary questions that affect the result. The first is which standard governs our consideration of plaintiffs’ claims—the rational-basis test employed in the absentee-ballot cases, or the m ore recent Anderson/Burdick balancing test, which weighs the burden on the right to vote against the state’s important regulatory interests. The Supreme Court has not decided an absentee-ballot case since the Anderson/Burdick test was announced, but two circuit courts have, and both applied the balancing test. InPrice v. New York State Board of Elections, 540 F.3d 101 (2d Cir. 2008), the Second Circuit considered a challenge to New York statut es that permitted absentee voting in all elections except county party com mittee elections. The c ourt rejected New York’s argument that rational-basis review should apply, analyzed the case under Anderson/Burdick, and found New York’s interests did not justify the burden on voters. Price, 540 F.3d at 107-12. InGriffin v. Roupas, 385 F.3d 1128 (7th Cir. 2004), the Seventh Circuit considered a challenge brought by Illinois working m others who asserted a constitutional right to vote by ab sentee ballot (or som e other alternative means) on the same basis as other voters who were granted the right to vote by absentee

6Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992).

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ballot because, like the other voters, they too had great difficulty voting between 6 a.m. and 7 p.m. on election da y. Although the cour t denied the challenge, it applied the Anderson/Burdick balancing test. See Griffin, 385 F.3d at 1130-33.
Thus, I agree with the district court and the majority that the Anderson/Burdick balancing test is, indeed, the proper test. The Supreme Court has applied this test in its election jurisprudence sinceAnderson, see, e.g., Crawford v. Marion Cnty. Election Bd,. 553 U.S. 181 (2008), and the test is flexiblenough to approximate the rational-basis test when appropriate, i.e., where the burden is slight, the required showing by the state is correspondingly light.
IV
In applying this balancing test, I cannot agree with the majority’s assertion that “Plaintiffs introduced extensive evidence that a significant number of Ohio voters will in fact be preclude d from voting without the additional three days of in-person early voting. (See, e.g., R. 34-32, Pls.’ Ex.28, at 2.)” Maj. Op.at 12. If that were in fact the case, this would be a simple matter. Th e burden would be great and the rationales offered by Ohio, which are plausible and rational on their face but find little support in the record, would not outweigh the burden on those precluded fromexercising their right to vote. However, though the record clearly establishes that a significant number of Ohio voters found it m ost convenient to vote after hours and t he weekend before the election, the study did not consider the extento which these voters would or could avail themselves of other voting options, either by mail ballot or in-person absentee ballot at other times, or in-person voting on election day (PID 1053-54). Convenience cannot be equated with necessity without m ore. Thus , it cannot be f airly said that there was evidence that a significant number of Ohio voters will be precluded from voting unless weekend and after-hours voting is restored.
Nevertheless, the burden may be substantial without being preclusive. A report by the Franklin County Board of Elections concluded that in-person early voting accounted for 9 percent of all ballots castin the 2008 election, that a disproportionately higher number of African-Americans voted earlyand, most significantly, that 82 percent

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of all early in-person votes were cast either after hours on weekdays, on weekends, or the Monday before the election (PID 1068). A study by a voter advocacy group indicating that restrictions on in-person early voting would disproportionately affect African-American voters in Cuyahoga County revealed that African-Americans in that county had voted in di sproportionately large numbers during extended hours and weekends, and in the three days beforethe 2008 general election, although they had the option of voting by mail and in-person during regular business hours; and that restricting in-person early voting in 2012 would likely lead to crowded conditions during regular board hours, raising concern that voters would find it necessary to abandon their attempts to vote due to extrem ely long wait times (PID 1077, 1082-83). To be sure, these studies as well do not establish that voters will be precluded from voting if afterhours and weekend in-person absentee voting is not restored. But they are strong evidence that a significant number of voters in Ohio’s two largest counties have come to depend on after-hours and weekend voting as a vehicle for exercising their right to vote.7
Still, no case has held that voting has to be convenient. The question the n is whether the elimination of in-person after-hours and weekend voting should be viewed in a vacuum—as if plaintiffs were simply asserting that because of their long work hours and other demographics they should be ableto vote after hours and on weekends so that they can get the full benefit of early in-person voting—or in the context of Ohio voting over the last decade, which includes Ohio’s remedial grant of such extended in-person absentee-voting opportunities, the substantial exercise of that right, and the boards of Ohio’s largest counties’ reliance on the availability of such voting. If the weighing must be done in the abstract, I would be compelled to dissent because the election case law

7Justices Scalia, Thomas and Alito would hold that the weighing of the burdenon voters against the state’s legitimate regulatory interests must be conducted by looking at the electorate at large , not a particular group of voterswho may be burdened disproportionately by an otherwise nondiscriminatory law. See Crawford, 553 U.S.at 205-06 (Scalia, J., concurring).However, Justice Stevens’ opinion inCrawford (the narrowest opinion, thus the controlling one for our purposes) examined the evidence and concluded that, “on the basis of the record that has been made in this litigation, we cannot conclude that the statute imposes ‘excessively burdensome requirements’ on any class of voters.” Id. at 202 (quoting Storer v. Brown, 415 U.S. 724, 738 (1974)). Justice Stevens’ opinion does not reveal any disinclination to evaluate evidence of an excessive burden; rather, the purely anecdotal evidence did not support that the voter-ID statute at issue imposed such a burden. See Crawford, 553 U.S. at 197-203.

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does not support the proposition that there is a constitut ional right to have voting on terms that are equally convenient for all vote rs. I conclude, however, that the Anderson/Burdick balancing in this case should not be divorced f rom reality, and that both the burden and the legitimate regulatory interest should be evaluated in context.
V
The key distinguishing factor here is thatOhio voters were granted the statutory right to in-person absentee voting through the close of bus iness hours on the Monday before election day, and the election boards otfhe largest counties broadly embraced and facilitated that right, in response to the unacceptably burdensome situation at many Ohio polling sites during the 2004 election where, in some counties, voters were required to stand in line for long hours and until lateat night (PID 1432-40, 1657-58). Thus, section 3509.03(I), as originally ena cted, was intended to relieve the pressure on the system resulting from heavy turnout on election da y. Further, experience shows t hat Ohio voters have taken increasing adva ntage of in-person absentee voting. In the last presidential election, close to 500,000 Ohio voters cast in-person absentee ballots, of which it appears a little over 100,000 were cast the weekend befor e the election (PID 1053). Further , in the 2008 election, the re sidents of Ohio’s two largest counties, Cuyahoga and Franklin, cast over 100,000 in-person absentee votes, the vast majority during after-hours and on weekends. Thesecounties have budgeted and planned for the expected extended hours and weekend in-person absentee voting, especially the weekned before the election (PID 1432-40, 1057-58). They have not budgeted or planned for any increase in election-day voting caused by the elim ination of weekend and after-hours voting, and fear that the restrictions on the hours for in-person absentee voting will cause some citizens not to vote and othe rs to vote on election day, leading to long lines and unreasonable delays at the polls, which in turn will cause some voters to abandon their attempts at voting, as happened in 2004.
Although states are permitted broad discretion in devising the election scheme that fits best with the perceived needs ofthe state, and there is no abstract constitutional right to vote by absentee ballot, eleventh-houcr hanges to remedial voting provisions that

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have been in effect since 2005 and have been relied on by substantial numbers of voters for the exercise of their franchise are pr operly considered as a bur den in applying Anderson/Burdick balancing. To conclude otherwise is to ignore reality. This does not mean that states cannot change their voting sche mes, only that in doing so they m ust consider the burden the change and the manner of implementing the change places on the exercise of the right to vote.
VI
Defendants argue that the new restricted in-person a bsentee voting hours are necessary to relieve election workers and election officialsrof m the burdens of in-person absentee voting immediately before the election, and to assure uniformity in absenteevoting hours throughout the state. These are legitimate regulatory interests; but neither bears any relation to the elimination of all after-hours and weekend voting preceding the final weekend. Regarding the final weekend, these concerns provide little explanation for the elimination of the right to obtain anabsentee ballot in person the Saturday beof re the election, when election workers are still honoring mail requests for absentee ballots until noon pursuant to statute. And in weighing the elimination of in-person absentee voting the rem ainder of t he weekend, the record shows that m any of the specific complaints voiced by election officials stem med from in-person absentee voting the Monday before the election, not the entire weekend8. The desire for uniformity has little to do with the elimination of all weekend and after-hours in-person voting. Defendants offer no explanation for curtailing hours other than on the final weekend, and uniformity without some underlying reason for the chosen rule is not a justification in and of itself. Nor is there a showing that eliminating all weekend and after-hours voting will in fact produce uniform access, as opposed to uniform hours.
Given the studies presented regarding the heavy use of in-person after-hours and weekend voting, and the legitimate concerns of Ohio’s largest counties and their voters
8In 2009, former Secretary of State Jennifer Brunner suggested that consideration be given to the pressure on the election commissions caused by in-person absentee voting and that the voting period be shortened from 30 to 20 days, with in-person absentee voting ending at 5 p.m. the Sunday before the election.

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regarding the smooth and efficient running of the 2012 presidential election, I conclude that defendants’ legitimate regulatory interests do not outwei gh the burden on voters whose right to vote in the upcoming election would be burdened by the joint effect of the statute and the directive.
Finally, I conclude that this is the unusual case where distinctions between UOCAVA and non-UOCAVA voters cannot support th e disparate treatment at issue. The record adequately supports the districtcourt’s conclusion that the State’s proffered reason for the distinction between UOCAVA and non-UOCAVA voters—concern that military voters m ight be deployed som etime between Friday evening and election day—had no relation to the statutory distinction and is not supported by the Secretary’s directive.
VII
Turning to the question of remedy, I understand the district court to have required Secretary Husted to restore in-person absentee voting through the Monday precedi ng election day. I would remand the matter with instructions to give the Secretary and the General Assembly a short and finite period in which cure the constitutional deefcts, with the understanding that a failure to do so will result in the reinstatem ent of the preliminary injunction.

 
 No. 12-____
In The Supreme Court of the United States
Jon Husted, Ohio Secretary of State; and Mike DeWine, Ohio Attorney General, Applicants
v. Obama for America; Democratic National Committee; and
Ohio Democratic Party, Respondents
On Petition for Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit
EMERGENCY APPLICATION FOR STAY PENDING CERTIORARI
To the Honorable Elena Kagan Associate Justice of the Supreme Court of the United States and
Circuit Justice for the Sixth Circuit

William S. Consovoy* Thomas R. McCarthy Brendan J. Morrissey J. Michael Connolly Wiley Rein LLP 1776 K Street NW Washington, D.C. 20006 Tel: (202) 719-7000 wconsovoy@wileyrein.com
Special Counsel for Applicant Ohio Secretary of State Jon Husted
*Counsel of Record

MICHAEL DEWINE Ohio Attorney General
Stephen P. Carney Richard N. Coglianese Michael J. Hendershot Assistant Attorneys General 30 East Broad Street, 16th Floor Columbus, OH 43215 Tel: (614) 466-2872
Counsel for Applicant Ohio Attorney General Michael DeWine
Date: October 9, 2012

QUESTION PRESENTED Whether the court of appeals erred in upholding a preliminary injunction premised on Respondents’ claim that the Ohio legislature’s decision to limit inperson absentee voting on the three days before Election Day to voters protected by the Uniformed and Overseas Citizens Absentee Voter Act violates the Equal Protection Clause of the Fourteenth Amendment.
i

TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................... iv EMERGENCY APPLICATION FOR STAY PENDING CERTIORARI ...................... 1 I. INTRODUCTION ............................................................................................... 1 II. STATEMENT OF THE CASE ............................................................................ 6
A. Background............................................................................................... 6 1. The Expansion Of Early, Absentee, And Voting By Mail ............ 6 2. Federal And State Protections For Military And Overseas Voters ............................................................................................. 9 3. Ohio Election Changes ................................................................ 11 4. Directive 2012-35......................................................................... 13
B. Procedural History ................................................................................. 14 1. District Court Proceedings .......................................................... 14 2. The Appeal ................................................................................... 17
III. REASONS FOR GRANTING A STAY ............................................................. 21 A. There Is A “Reasonable Probability” That The Court Will Grant Certiorari And A “Fair Prospect” That The Court Will Reverse The Decision Below Because It Squarely Conflicts With Controlling Precedent. ............................................................................................... 22 1. The Anderson/Burdick Balancing Test...................................... 23 2. O.R.C. § 3509.03 Does Not Burden The Right To Vote.............. 24 3. The State’s Regulatory Interests Are Sufficient To Justify Any De Minimis Burden On Non-UOCAVA Voters. .................. 27 4. The Sixth Circuit’s Reasons For Striking Down O.R.C. § 3509.03 Are Unsustainable. ......................................... 28 5. No Equitable Factor Warrants Upholding The Preliminary Injunction Here Given The Lack Of A Likelihood Of Success On The Merits.............................................................................. 36 B. There Is A Likelihood That Applicants Will Suffer Irreparable Harm In The Absence Of A Stay. .......................................................... 37
IV. REQUEST TO TREAT THE STAY APPLICATION AS PETITION FOR CERTIORARI, GRANT THE PETITION, AND SUMMARILY REVERSE THE DECISION BELOW ................................................................................. 39
V. CONCLUSION .................................................................................................. 39 CERTIFICATE OF SERVICE ..................................................................................... 41
ii

APPENDIX CONTENTS Page
Opinion, United States Court of Appeals for the Sixth Circuit, dated October 5, 2012..................................................................................................................... 1a
Order Denying Motion to Stay, United States District Court for the Southern District of Ohio, dated August 31, 2012 .............................................................. 30a
Opinion and Order on Preliminary Injunction, United States District Court for the Southern District of Ohio, dated September 12, 2012 ............................ 36a
Complaint................................................................................................................... 59a Secretary of State Directive 2012-20 ........................................................................ 80a Secretary of State Directive 2012-26 ........................................................................ 88a Declaration of Colonel Duncan D. Aukland............................................................ 100a Declaration of Matthew M. Damschroder .............................................................. 104a Declaration of Robert H. Carey, Jr. ........................................................................ 108a Declaration of Rear Admiral (Ret.) James J. Carey............................................... 116a Paul Gronke, Eva Galanes-Rosenbaum, Peter A. Miller, Early Voting and
Turnout, PSOnline (Oct. 2007) .......................................................................... 124a Secretary of State Directive 2012-35 ...................................................................... 132a Transcript of Preliminary Injunction Hearing, dated August 15, 2011 ................ 134a
iii

TABLE OF AUTHORITIES

CASES

Page(s)

Anderson v. Celebrezze, 460 U.S. 780 (1983) .........................................................................................passim

Biener v. Calio, 361 F.3d 206 (3d Cir. 2004) .................................................................................... 22

Brunner v. Ohio Republican Party, 555 U.S. 5 (2008) .................................................................................................... 36

Burdick v. Takushi, 504 U.S. 428 (1992) .........................................................................................passim
Crawford v. Marion County Election Board, 553 U.S. 181 (2008) .........................................................................................passim
Diaz v. Cobb, 541 F. Supp. 2d 1319 (S.D. Fla. 2008) ................................................................... 35
Gregory v. Ashcroft, 501 U.S. 452 (1991) ................................................................................................ 37
Hollingsworth v. Perry, 130 S. Ct. 705 (2010) .............................................................................................. 21
John Doe No. 1 v. Reed, 130 S. Ct. 2811 (2010) ............................................................................................ 36
League of Women Voters v. Brunner, 548 F.3d 463 (6th Cir. 2008) .................................................................................. 33
Maryland v. King, --- S. Ct. ---, 2012 WL 3064878 (July 30, 2012) ..................................................... 37
McDonald v. Board of Election Commissioners, 394 U.S. 802 (1969) .........................................................................................passim

Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150 (6th Cir. 1991) .................................................................................. 21

iv

New Motor Vehicle Bd. of California v. Orrin W. Fox Co., 434 U.S. 1345 (1977) ........................................................................................ 37, 38
Norman v. Reed, 502 U.S. 279 (1992) .......................................................................................... 22. 23
O’Brien v. Skinner, 414 U.S. 524 (1974) .......................................................................................... 25, 26
Pullman Co. v. Knott, 235 U.S. 23 (1914) .................................................................................................. 32
Purcell v. Gonzalez, 549 U.S. 1 (2006) ........................................................................................ 37, 38, 39
Summit County Democratic Central & Executive Comm. v. Blackwell, 388 F.3d 547 (6th Cir. 2004) .................................................................................. 38
Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997) ................................................................................................ 23
United States v. United States Gypsum Co., 333 U.S. 364 (1948) ................................................................................................ 31
Western Airlines, Inc. v. Teamsters, 480 U.S. 1301 (1987) .............................................................................................. 21
Williamson v. Lee Optical of Oklahoma, Inc. v. McDonald, 394 U.S. 483 (1995) ................................................................................................ 36
RULES AND STATUTES 42 U.S.C. § 1973ff ........................................................................................................ 10 42 U.S.C. § 1973ff-1 ..................................................................................................... 10 42 U.S.C. § 1973ff-2 ..................................................................................................... 11
Fed. R. App. P. 8 .......................................................................................................... 21 Fed. R. Civ. P. 52 ......................................................................................................... 31 Ohio Rev. Code § 3501.10 .............................................................................................. 8 Ohio Rev. Code § 3501.11 ............................................................................................ 13
v

Ohio Rev. Code § 3509.01 ........................................................................................ 8, 10 Ohio Rev. Code § 3509.02 .............................................................................................. 8 Ohio Rev. Code § 3509.03 .....................................................................................passim Ohio Rev. Code § 3509.05 .................................................................................. 8, 10, 11 Ohio Rev. Code § 3509.06 .............................................................................................. 9 Ohio Rev. Code § 3511.01 .............................................................................................. 9 Ohio Rev. Code § 3511.02 ............................................................................................ 10 Ohio Rev. Code § 3511.04 ............................................................................................ 10 Ohio Rev. Code § 3511.09 ............................................................................................ 11 Ohio Rev. Code § 3511.11 ............................................................................................ 11 Ohio Rev. Code § 3511.14 ............................................................................................ 11 LEGISLATIVE MATERIALS Georgia HB 92 (2011) .................................................................................................... 5 Legislative Debate on HB 194, The Ohio Channel, available at
www.ohiochannel.org/MediaLibrary/Media.aspx?fileId=131009&startTime =2418&autoStart=Truehttp://www.ohiochannel.org/MediaLibrary/ ................... 11 Legislative Debate on HB 224, The Ohio Channel, available at http://www.ohiochannel.org/MediaLibrary/MediaSearchResults.aspx?Key words=HB+224 ....................................................................................................... 11 Legislative Debate on SB 295, The Ohio Channel, available at http://www.ohiochannel.org/MediaLibrary/MediaSearchResults.aspx?key words=sb+295 ......................................................................................................... 11 Ohio HB 234 (2005) ................................................................................................... 8, 9 Pub. L. No. 111-84 (2010) .............................................................................................. 9 Texas SB 292 (1997) ...................................................................................................... 5
vi

OTHER AUTHORITIES Daniel P. Tokaji, Absentee Voting by People with Disabilities: Promoting
Access and Integrity, 38 McGeorge L. Rev. 1015 (2007) ......................................... 7 Eugene Gressman, et al., Supreme Court Practice (9th ed. 2007) ............................ 39 John C. Fortier & Norman J. Ornstein, The Absentee Ballot and the Secret
Ballot: Challenges for Election Reform, 36 U. Mich. J. L. Reform 483 (2003) ........................................................................................................................ 7 Lynn Hulsey, “Easier” Voting In State Showing Little Impact: Absentee and Early Voting Are Up, but Election Day Voting Is Down, Meaning No Overall Increase, Dayton Daily News (Aug. 28, 2012) .......................................... 31 Marc Kovac, Early Voting Prompts Interesting Rhetoric, Youngstown News (Sept. 8, 2012) ......................................................................................................... 12 Rachel La Corte, Washington State to Unveil Voter Registratoin on Facebook, Associated Press (July 18, 2012).............................................................................. 5 Robert M. Stein & Greg Vonnahme, Early, Absentee, and Mail-In Voting (2010) ........................................................................................................................ 7
vii

EMERGENCY APPLICATION FOR STAY PENDING CERTIORARI TO THE HONORABLE ELENA KAGAN, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES AND CIRCUIT JUSTICE FOR THE SIXTH CIRCUIT:
Applicants Secretary of State Jon Husted and Attorney General Michael DeWine (“Applicants”) respectfully move for a stay pending the timely filing of a petition for writ of certiorari. In addition, or in the alternative, Applicants request that the Court treat the application for stay as a petition for writ of certiorari, grant the petition, and summarily reverse the decision below. I. INTRODUCTION
In 2005, Ohio enacted perhaps the most generous system of absentee voting in the entire nation. Eligible voters are able to begin casting an absentee ballot without an excuse starting 35 days before the election. Absentee ballots can be cast in-person or by mail. For the upcoming election, Secretary Husted has mailed an absentee ballot application to each of the more than 6 million registered voters in Ohio. And, more than 9,000 polling locations across the State are open for 13 hours on Election Day. Accordingly, there can be no doubt that Ohio affords its citizens ample opportunities to cast a ballot.
Respondents Obama for America, Democratic National Committee, and Ohio Democratic Party (“Respondents”) nevertheless filed suit and sought a preliminary injunction challenging, under the Equal Protection Clause of the Fourteenth Amendment, O.R.C. § 3509.03, which changed Ohio law to limit in-person absentee voting on the three days preceding Election Day to voters protected by the
1

Uniformed and Overseas Citizens Absentee Voter Act (“UOCAVA”). Although the complaint and preliminary injunction motion set forth a straightforward disparate treatment claim challenging the preferential access granted to military voters and their families (a claim that would clearly fail under rational basis review), the Sixth Circuit interpreted Respondents’ suit as challenging the Ohio law based on its alleged interference with non-UOCAVA voters’ fundamental right to vote and declared it facially unconstitutional on that basis. Based on nothing more than supposition, the Sixth Circuit held that this modest reduction of in-person absentee voting disenfranchised thousands of voters even though any voter who had previously used this three-day period to vote in person still had access to 230 hours of in-person absentee voting, more than 750 hours of absentee voting by mail, and 13 hours of voting on Election Day. The Sixth Circuit also rejected the State’s interest—using these three days to prepare for Election Day, while also accommodating a small but vulnerable population of military voters and their families—as not important enough to sustain this severe burden on the right to vote. The decision below is unsustainable.
This Court has unequivocally held that there is no constitutional right to absentee voting and that laws offering absentee ballots to some voters but not others are subject to rational-basis review unless the law “absolutely prohibited” voters “from exercising the franchise.” McDonald v. Board of Election Comm’rs of Chicago, 394 U.S. 802, 809 (1969). That decision is controlling here. It cannot seriously be argued that any voter—let alone an entire class of voters—has been
2

disenfranchised when Ohio still offers non-UOCAVA voters 230 hours of in-person absentee voting, more than 750 hours of absentee voting by mail, and 13 hours of voting on Election Day. The Sixth Circuit’s ruling that lower income and lesser educated voters would not be able to vote at all other than through in-person absentee voting on these three particular days finds no support in fact or law. Indeed, this is precisely the type of inferential reasoning the Court has found plainly insufficient to strike down an election law as facially unconstitutional. See generally Crawford v. Marion Cnty Elec. Bd., 553 U.S. 181 (2008). The State’s important regulatory interests in preparing for Election Day, while accommodating a small number of military voters and their families, are more than sufficient to justify this de minimis inconvenience to voters.
This decision is not only wrong, but it will cause wholly unwarranted interference with and disruption of the State’s administration of elections. The Ohio legislature reached the measured decision to modestly reduce in-person absentee voting to allow county boards of elections ample time to prepare for Election Day. Approximately 70% of Ohioans still cast their ballot on Election Day. In the days before Election Day, officials must undertake numerous preparations to set up the over 9,000 polling locations throughout Ohio. Respondents may think that the legislature struck the wrong balance between allowing in-person absentee voting and Election Day preparation, but it is the legislature’s judgment that has constitutional significance because it is the body that is ultimately responsible for ensuring an orderly and fair electoral process.
3

The Sixth Circuit’s decision also undermines the protections afforded to military voters and their families under numerous federal and state laws. Although the court went to great lengths to profess its support for UOCAVA voters, it rejected any special protections for them unless they are deployed outside their home state. The court acknowledged that military voters residing in their home state in the days before an election might be abruptly deployed because of the need to respond to a military emergency or natural disaster, but it found that such a concern was insufficient to distinguish UOCAVA voters from the civilian population, comparing this possibility to “personal contingencies like medical emergencies or sudden business trips” that might arise unexpectedly. Appendix (“App.”). 17a. Confusing the line of authority addressing disparate treatment under the Equal Protection Clause and the Court’s fundamental right to vote jurisprudence, the Sixth Circuit even suggested that the State could have cured the constitutional problem by further restricting the voting rights of the military and their families. Id. 15a. But if O.R.C. § 3509.03 fundamentally burdened non-UOCAVA voters’ right to vote, as the Sixth Circuit incorrectly found, further restricting the voting rights of military voters and their families obviously does nothing to solve that purported injury to non-UOCAVA voters.
Despite the Sixth Circuit’s claim to the contrary, then, its decision does not respect the need to specially accommodate military voters and their families. Indeed, the court discounts almost any protections for military voters unless they are deployed. Yet many federal and state laws extend protections to such voters
4

even when they are residing in their home state, for example, by mailing them absentee ballots earlier than other voters, or by not requiring a postmark on an absentee ballot. Such laws are subject to constitutional doubt under the reasoning of the decision below.
Finally, the Sixth Circuit’s decision will have ramifications far beyond Ohio. At a minimum, it will deter other states from expanding voting avenues out of fear that they will not be allowed to make changes if experience proves them unwise or capable of improvement. See, e.g., Rachel La Corte, Washington State to Unveil Voter Registration on Facebook, Associated Press (July 18, 2012). Worse still, the reasoning underlying the Sixth Circuit’s ruling might subject other states’ current voting systems to constitutional attack in this election cycle or in a future one for failing to provide more absentee voting options or by scaling back early voting periods. Texas has shortened the start date for the in-person early voting period from 20 days to 17 days prior to an election. Texas SB 292, § 1 (1997). Georgia has reduced the early voting period from 45 days to 21 days. Georgia HB 92 (2011). New York, Pennsylvania, Kentucky and Michigan do not allow any voting before Election Day unless the voter has a valid excuse. This kind of constitutional challenge should not be allowed to proliferate.
At bottom, the Constitution allocates to the States the responsibility to run elections. Enjoining state election laws as facially unconstitutional—especially right before an election—frustrates the Framers’ design and disrupts election administration in multiple ways. Thus, this Court has warned federal courts to be
5

cautious before doing so. The Sixth Circuit ignored that warning and starkly declared, in direct contravention of binding Supreme Court precedent, that nonUOCAVA voters have a constitutional right to cast an absentee ballot in-person on the three days immediately preceding Election Day. This untenable ruling should be set aside. II. STATEMENT OF THE CASE
A. Background 1. The Expansion Of Early, Absentee, And Voting By Mail
“States retain the power to regulate their own elections.” Burdick v. Takushi, 504 U.S. 428, 433 (1992). As a result, there is no uniform, federal system for conducting elections. New York and Pennsylvania, for example, permit regular ballots to be cast on Election Day only and require an excuse to use an absentee ballot; Florida offers no-excuse absentee voting and early voting of regular ballots (i.e., immediate tabulation of the ballot just like on Election Day); New Jersey offers no-excuse absentee voting but no early voting of regular ballots; Georgia offers noexcuse absentee voting and 21 days of in-person absentee voting; Oregon generally conducts its elections by mail; Kentucky allows mail-in absentee voting with an excuse, and machine voting for voters with a valid excuse during the 12 business days immediately preceding Election Day; Michigan generally allows mail-in absentee voting with an excuse; and Tennessee allows in-person voting prior to Election Day (ending five days before Election Day), and permits voting by mail only with a valid excuse.
6

This wide diversity in the casting of ballots is a relatively new phenomenon. For most of American history, States provided for voting on one day: Election Day. If a person sought to vote in an election, he or she would travel to the polls to cast a ballot on Election Day. Over time, some States began offering absentee voting to select groups of people they believed were in need of special assistance and could not otherwise make it to the polls. See generally John C. Fortier & Norman J. Ornstein, The Absentee Ballot and the Secret Ballot: Challenges for Election Reform, 36 U. Mich. J. L. Reform 483 (2003).
“Like many aspects of American election administration, the rise of the absentee ballot is tied to military service.” Daniel P. Tokaji, Absentee Voting by People with Disabilities: Promoting Access and Integrity, 38 McGeorge L. Rev. 1015, 1020 (2007). Beginning in the Civil War, a number of states enacted absentee voting laws so soldiers could vote while deployed. Fortier & Orstein, supra, at 493501. By 1924, after World War I, most States offered some sort of absentee balloting, though it was almost always limited to select categories of people, such as the military, those in transient professions (e.g., railroad workers) or specified categories (e.g., temporary or permanent disability). It has only been in the last two decades that States began significantly expanding the opportunities for alternative forms of voting, like no-excuse, in-person voting. Robert M. Stein & Greg Vonnahme, Early, Absentee, and Mail-In Voting 183 (2010).
Ohio’s experience reflects this overall trend. For much of its history, Ohioans who could not make it to the polls on Election Day could cast an absentee ballot only
7

with a valid excuse. This “excuse” requirement meant that only certain categories of people could vote absentee. Valid excuses included: (1) being age 62 or older; (2) full-time employment as an emergency services worker; (3) membership in the organized militia; (4) medical excuses; (5) non-felony incarceration; (6) religious observance; (7) absence from the county; (8) physical disability; or (9) being a poll worker. O.R.C. § 3509.02(A), (C) (2004). These absentee ballots could be voted by mail or in person.
In 2005, Ohio enacted HB 234, which revised its election procedures to adopt no-excuse absentee voting. HB 234 (2005); O.R.C. § 3509.02(A) (eff. Jan. 27, 2006). Voters now can request an absentee ballot without an excuse and then vote it by mail. Or, pursuant to preexisting state law, they can request and cast an absentee ballot in person at either the voter’s county board of elections office or at another site designated by the county board of elections. O.R.C. § 3501.10. In either circumstance, the procedure is identical: the voter must fill out an application with the required information,1 must receive the ballot, must mark it, and must return it to the board of elections. O.R.C. § 3509.03; id. § 3509.05.
As a general rule, all ballots used in a particular county—whether mail-in absentee, in-person absentee, or Election Day—are identical to one another (other than the title absentee ballot). O.R.C. § 3509.01(A). But absentee ballots (cast in person or by mail) are verified and counted in a particular way: they are not immediately tabulated, but rather are examined to determine if they are valid and

1

If the voter requests that the absentee ballot be delivered by mail, he must also

provide an address for delivery. O.R.C. § 3509.03(I).

8

are tabulated after the fact. O.R.C. § 3509.06. Since the passage of HB 234, with the State and its counties devoting substantial resources to promoting the use of absentee voting generally and in-person absentee voting in particular over the fiveweek period preceding Election Day, Ohio has been at the vanguard of states in terms of promoting access to the polls.
2. Federal And State Protections For Military And Overseas Voters Because military and overseas voters face unique challenges, federal law provides them special protections through, among other laws, the Uniformed and Overseas Citizens Absentee Voter Act (“UOCAVA”), the Military and Overseas Voter Empowerment Act (“MOVE Act”), and the National Defense Authorization Act for Fiscal Year 2010, Pub. Law 111-84 (2010). Following this trend, Ohio likewise provides special protections to individuals protected by these statutes. O.R.C. ch. 3511 (UOCAVA voting procedures), ch. 3509 (absentee voting procedures); compare App. 80a-86a (Directive 2012-20 (May 25, 2012) (UOCAVA voting)); App. 88a-89a (Directive 2012-26 (July 12, 2012) (absentee voting)). Ohio law defines “uniformed service voters” as members of: (1) the active or reserve components of the U.S. Army, Navy, Air Force, Marine Corps, or Coast Guard; (2) the National Guard and the organized militia on activated status; (3) the merchant marine, commissioned corps of the Public Health Service or the National Oceanic and Atmospheric Administration; and (4) the spouse or dependent of any of the above. O.R.C. § 3511.01. Ohio law defines an “overseas voter” as a person who: (1) is considered by Ohio law to be a resident of the state, but currently is living outside the United States; and (2) was born outside the United States, but who has
9

a parent or guardian who last resided and was last eligible to vote in Ohio before leaving the United States. Id.
Federal and Ohio law treat UOCAVA and non-UOCAVA voters differently in many respects. Federal law allows UOCAVA voters to use the Federal Post Card Application (“FPCA”) both as a voter registration form and a request for absentee ballot. 42 U.S.C. § 1973ff(b)(2). Non-UOCAVA voters must separately register before receiving an absentee ballot. O.R.C. § 3509.03. Once a UOCAVA voter requests an absentee ballot, he or she will continue to receive a ballot for each election in a calendar year. Id. § 3511.02. Non-UOCAVA voters must request absentee ballots one election at a time. Id. § 3509.03(F).
The procedures and timing for requesting an absentee ballot also differ. UOCAVA voters may request and receive absentee ballots by mail, email, fax, or in person; non-UOCAVA voters may request and receive absentee ballots only by mail or in person. Id. §§ 3511.04; 3509.03, 3509.05. Also, on the 45th day before each election, each county board of elections must transmit an absentee ballot to every UOCAVA voter who has filed a valid application by January 1 of that year or 90 days before the election, whichever is earlier. 42 U.S.C. § 1973ff-1(a)(8); O.R.C. § 3511.04(B). In contrast, county boards must have non-UOCAVA absentee ballots available on the 35th day before each election. O.R.C. § 3509.01.
In addition, UOCAVA voters are afforded special protection in the return of absentee ballots. Both Ohio and federal law allow UOCAVA voters who have requested an absentee ballot but who have not received one to vote via a federal
10

write-in absentee ballot. Non-UOCAVA voters do not have this option. O.R.C. § 3511.14; 42 U.S.C. § 1973ff-2. Furthermore, a postmark is not necessary for a UOCAVA ballot to be counted and the ballot will be counted if received within ten days after the election so long as the voter signed the identification envelope no later than 12:01 a.m. on the date of the election. O.R.C. §§ 3511.09; 3511.11(C). A postmark prior to Election Day is necessary for a non-UOCAVA absentee ballot to be counted. Id. § 3509.05(B). UOCAVA voters are entitled to all of these special accommodations irrespective of whether they are deployed or remain within Ohio during the pre-election period.
3. Ohio Election Changes As a result of three different statutory enactments—HB 194, HB 224, and SB 295—the deadline under Ohio law for casting in-person absentee ballots is 6:00 p.m. on the Friday before Election Day for non-UOCAVA voters. App. 5a-6a, 39a-41a. The debates over all three bills show that the legislature was motivated to shorten the in-person absentee voting period to allow boards of elections to prepare for Election Day.2 See, e.g., Senate Debate on SB 295 at 56:30-57:45 (Mar. 28, 2011) (Sen. Seitz) (“[W]e listened to the people [who] administer elections for a living. . . . And the election officials felt very, very, very strongly that they would like the curtain to come down on in-person absent voting on the Friday before the Election so that they could have the weekend and Monday to get ready for the big day.”);

2

The debates are available for HB 194, see http://www.ohiochannel.org/MediLibrary/

MediaSearchResults.aspx?keywords=HB+194, HB 224, http://www.ohiochannel.org/Media

Library/MediaSearchResults.aspx?Keywords=HB+224, and SB 295, see http://www.ohio

channel.org/ Media Library/MediaSearchResults.aspx?yeywords=sb+295.

11

House Debate on SB 295 at 364:00-364:40 (April 25, 2012) (Rep. Maag) (“A bipartisan association of election officials gave us many provisions in House Bill 194, including—including—removing the weekend prior to elections so they could prepare for the elections.”); House Debate on HB 194 at 192:54-193:38 (June 29, 2011) (Rep. Blessing) (“The Democratic member of the Hamilton County boards of election came to our committee and said 31 days . . . is too long. It’s causing problems. He wanted it shortened. And it does cause problems when you back up all of those things to Election Day.”); House Debate on SB 295 at 29:12-29:26 (May 8, 2012) (Rep. Blessing) (“Election officials from both parties oppose having voting during the three days prior to the Election, and that is what this is really about. They’re telling us that they need to prepare for the Election Day.”).3
As a result of these same enactments, Ohio law includes competing deadlines for casting in-person absentee UOCAVA ballots (6:00 p.m. on the Friday before Election Day and the close of the polls on Election Day). App. 5a-6a. The parties all agree that Secretary Husted appropriately resolved the conflict by giving the more generous period for UOCAVA voters precedence; the deadline for UOCAVA inperson absentee ballots is now four days later than the deadline for non-UOCAVA

3

This is a bipartisan concern that has spanned administrations. In 2009, then-

Secretary of State Jennifer Brunner, a Democrat, proposed shortening Ohio’s in-person

absentee voting period from 30 days to 20 days and ending it at 5 p.m. on the Sunday before

the election. App. 28a n.8. As she explained, there is a “difficulty in administration for

boards of elections [because] people are voting right up until the day before the election. . . .

What ends up happening is elections workers then are trying to prepare for the election

[and] get materials out to poll-workers, during those last few days. And what you end up

having is sometimes election workers who don’t go to bed for 48 hours. I don’t think most

people function that well on that little sleep. And we do want the elections to be smooth,

well run, [and] accurate.” Marc Kovac, Early Voting Prompts Interesting Rhetoric,

Youngstown News (Sept. 8, 2012).

12

voters. The Ohio legislature rejected proposed amendments that would have revoked the special accommodations afforded to military voters and their families. R.34-11, PID 922-23; R.34-12, PID 926-27; see also R.34-40, PID 1114.
4. Directive 2012-35 Prior to the changes in law in 2011 and 2012, local boards of elections and the Secretary of State retained the ability to choose the days and hours on which inperson absentee ballots could be cast. See O.R.C. § 3501.11. Many local boards of elections were not open on weekends or during non-working hours. For example, in 2008, six of Ohio’s 88 counties chose not to offer any in-person absentee voting on the Saturday prior to Election Day, nearly all chose not to do so on that Sunday, and all were open during their regular weekday business hours on that Monday. In 2010, fourteen counties chose not to offer any in-person absentee voting on that Saturday, nearly all chose not to do so on that Sunday, and all were open on that Monday. App. 107a (Damschroder Dec.). The Secretary of State retains the authority under Ohio law to set statewide uniform days and hours. O.R.C. § 3501.11(E). On August 15, 2012, Secretary Husted exercised that authority by issuing Directive 2012-35, which eliminated the problem of different counties offering varying hours for in-person absentee voting by creating standard voting hours and thus “level[ed] the playing field on voting days and hours during the absentee voting period in order to ensure that the Presidential Election in Ohio will be uniform, accessible for all, fair, and secure.” App. 133a (Directive 2012-35).
13

B. Procedural History 1. District Court Proceedings
Respondents brought this action alleging one cause of action: that Ohio violated the Equal Protection Clause by allowing only UOCAVA voters to cast an inperson absentee ballot on the three days before Election Day. App. 75a-77a. They requested that the court: (1) declare unconstitutional certain provisions of HB 224 and SB 295, which amended O.R.C. § 3509.03 to move the deadline for in-person absentee voting to 6:00 p.m. on the Friday immediately preceding Election Day; and (2) enjoin Ohio from “implementing or enforcing” these statutes, “thereby restoring in-person voting on the three days immediately preceding Election Day for all eligible Ohio voters.” App. 78a. Respondents filed a Motion for Preliminary Injunction seeking the same relief on an interim basis. Id. 3a, 37a.
Applicants and fifteen intervenor-military groups (“Intervenors”) opposed the motion. In support of their opposition, Applicants and Intervenors submitted three declarations from current and former members of the military: Colonel Duncan Aukland, the Ohio Judge Advocate and a Colonel in the Ohio Army National Guard; Rear Admiral James J. Carey, the Founder of the National Defense Committee, which works to promote veterans’ rights, including voting rights; and Robert H. Carey, Jr., the former Director of the Federal Voting Assistance Program, which is a program in the Department of Defense that helps military and overseas voters, among other things, to exercise their right to vote. App. 100a-102a, 108a-122a.
These declarants described Ohio’s military community and the special circumstances that apply to members of the uniformed services and their family
14

members. Ohio deployed over 1,300 troops overseas in 2011-2012, has sent personnel to other states to assist in disaster relief, and has ordered Ohio military personnel into action to confront emergencies within the State. Id. 101a Often, deployments are ordered on extremely short notice, and assignments pose substantial risk of injury or incapacitation. Id. Additionally, once orders come in, a soldier and his or her family often devote substantial time preparing for the deployment, making it difficult to tend to other tasks. Id. 119a-120a. These demanding circumstances can often make it difficult for members of the military to vote in-person on Election Day. As Rear Admiral Carey explained, “[m]embers of the military serving on Active Duty are highly regulated and limited in their movements. Last-minute changes or restrictions may make it difficult or impossible for such individuals who reasonably had been planning on voting on Election Day to do so.” App. 118a.
Applicants also submitted the declaration of Matthew Damschroder, Deputy Assistant Secretary of State and State Director of Elections, and the former Director of the Franklin County Board of Elections. Mr. Damschroder discussed UOCAVA voting, trends in the usage of absentee voting, the burdens boards of elections face in preparing for Election Day, and the need to reserve time to prepare for that day. App. 104a-107a. He explained that “boards of elections are extremely busy during the Saturday, Sunday, and Monday immediately preceding any Election Day.” Id. 105a. Among their numerous tasks, they must compile final poll books, which cannot be completed until in-person absentee voting has completed, and set up the
15

physical space where Election Day voting will take place. Id. 105a-106a. Mr. Damschroder also explained that, in the past, few Ohio counties allowed in-person absentee voting on the Sunday prior to Election Day, and some did not provide the opportunity to vote on the Saturday prior to Election Day. Id. 107a. Finally, Mr. Damschroder added that, during his tenure with the Franklin County Board of Elections, last-minute in-person absentee voting on the Monday prior to Election Day actually interfered with the county board of elections’ ability to open the polls on time on Election Day. Id.
The district court held oral argument on August 15, 2012. While taking issue with the legislative process, Respondents admitted that “in theory . . . the State could have arrived at the result that it did here” and that the Ohio legislature could “[i]n theory,” “in the abstract,” and “in a [hypothetical] world” have constitutionally created the challenged voting system. App. 157a, 158a, 180a. They conceded that “the military and the non-military overseas voters have unique circumstances.” Id. 185a-186a. And, importantly, the district court challenged any claim of disenfranchisement by making clear that it is “only an assumption” that “those 100,000 or whatever the number will be this time are not going to vote because of this change in the law,” that the legislature has given voters “many other options in Ohio” for voting, and that Ohio “is probably one of the most liberal states in the country with regard to voting rights.” Id. 189a, 155a.
The district court issued an Opinion and Order on August 31, 2012, granting Respondents’ motion for a preliminary injunction. While recognizing that non-
16

UOCAVA voters still have at least “23 days in which to cast an in-person early vote,” id. 49a-50a, the court found that the State had burdened the right to vote by “retract[ing]” the possibility of non-UOCAVA voting during the three days before Election Day, id. 51a. The court found the State’s interests insufficiently “compelling” to justify the change in law. Id. 56a. Thereafter, the district court denied Applicants’ request for a stay pending appeal. Id. 30a-35a.
2. The Appeal The Sixth Circuit affirmed on the ground that Respondents were likely to succeed on the merits.4 It found that if Respondents had alleged only that Ohio law treated them “differently than similarly situated voters, without a corresponding burden on the fundamental right to vote, a straightforward rational basis standard of review should be used.” App. 8a (citing McDonald, 394 U.S. at 807-09 (other citations omitted)). “On the other extreme,” in the court’s view, “when a state’s classification ‘severely’ burdens the fundamental right to vote, as with poll taxes, strict scrutiny is the appropriate standard.” Id. (quoting Burdick v. Takushi, 504 U.S. 428, 434 (1992)). But “[w]hen a plaintiff alleges that a state has burdened voting rights through the disparate treatment of voters, we review the claim using the ‘flexible standard’ outline in Anderson v. Calebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992).” Id. (citation omitted). The court held

4

The Sixth Circuit found that the equitable factors favored granting the preliminary

injunction solely because of the constitutional violation. App. 19a (“When constitutional

rights are threatened or impaired, irreparable injury is presumed.”); id. (concluding that

“[t]he balance of equities and the public interest also weigh in [Respondents’] favor” because

“[t]he burden on non-military Ohio voters’ ability to cast ballots . . . outweighs any

corresponding burden on the State”).

17

that the “Anderson-Burdick standard . . . applies” because Respondents “have demonstrated that their right to vote is unjustifiably burdened by the changes in Ohio’s early voting regime.” Id. 10a.
The Sixth Circuit found that this case was not controlled by McDonald because the McDonald plaintiffs “had presented no evidence to support their allegation that they were being prevented from voting,” whereas Respondents “introduced extensive evidence that a significant number of Ohio voters will in fact be precluded from voting without the additional three days of in-person early voting.” Id. 11a-12a (citations omitted). The court rejected Applicants’ argument that the burden “is slight because they have ‘ample’ other means to cast their ballots, including by requesting and mailing an absentee ballot, voting in person prior to the final weekend before Election Day, or on Election Day itself.” Id. 11a. It instead found that “because early voters have disproportionately lower incomes and less education than election day voters, and because all evening and weekend voting hours prior to the final weekend were eliminated by Directive 2012-35, ‘thousands of voters who would have voted during those three days will not be able to exercise their right to cast a vote in person.’” Id. (quoting App. 51a). The court acknowledged, however, that the “elimination of in-person early voting during the three-day period prior to the election does not absolutely prohibit early voters from voting.” App. 14a.
The Sixth Circuit rejected the State’s justifications for limiting in-person absentee voting to UOCAVA voters during this three-day period. Regarding the
18

need to prepare for Election Day, the court found that election boards “undoubtedly have much to accomplish during the final few days before the election. But the State has shown no evidence indicating how this election will be more onerous than the numerous other elections that have been successfully administered in Ohio since early voting was put into place in 2005.” App. 13a-14a. The court found the legislature’s desire to use this three-day period to prepare for Election Day not “sufficiently weighty” to justify the restriction. App. 15a (quotation marks omitted). Yet despite having concluded that the “elimination of in-person early voting for nonmilitary voters during the three-day period in question” disenfranchised thousands of voters, the court reasoned that the legislature’s interest in “smooth election administration” would “likely” have been “sufficient to justify the restriction” had it “enacted a generally applicable, nondiscriminatory voting regulation that limited in-person early voting for all Ohio voters.” Id. 15a.
The Sixth Circuit also rejected the interest in affording special protections for UOCAVA voters. The court found that the Ohio legislature’s desire to protect military voters and their families, “who constantly face the possibility of a sudden and unexpected deployment” is “laudable” but that it “offered no justification for not providing similarly situated voters the same opportunities.” App. 16a (citation omitted). The court found that UOCAVA voters were not entitled to special protections because “any voter could be suddenly called away and prevented from voting on Election Day.” Id. 17a.
19

Judge White concurred in part and dissented in part. As an initial matter, she found “it clear that the elimination of non-UOCAVA voters’ access to in-person absentee ballots after 6 p.m. the Friday before the election was not a fluke, but rather the considered intent of a majority of Ohio’s legislators.” App. 21a. Judge White also found that “[t]here is no constitutional right to an absentee ballot” and that “only when there is no alternative vehicle for voting that the Supreme Court has found a right to an absentee ballot.” App. 23a-24a (citations omitted). She agreed that the “Anderson/Burdick balancing test” applied—as it is “flexible enough to approximate the rational-basis test when appropriate, i.e., where the burden is slight, the required showing by the state is correspondingly light”—but disagreed with the majority’s characterization of the documents submitted for the district court’s consideration. Id. 25a. Judge White found that those documents established that certain voters “found it most convenient” to vote during this period, but that they did not in any way address “the extent to which these voters would or could avail themselves of other voting options, either by mail ballot or in-person absentee ballot at other times, or in-person voting on election day. Convenience cannot be equated with necessity without more.” Id. (citation omitted).
Judge White nevertheless found the law unconstitutional. In her view, Respondents’ claims must be viewed in light of alleged problems Ohio experienced with Election Day voting in 2004 and “the elimination of all after-hours and weekend voting preceding the final weekend.” App. 28a. Even though neither of these issues was pled in the complaint or supported by the evidentiary record,
20

Judge White concluded that the constitutional analysis “should not be divorced from reality.” App. 27a. Referring to the Ohio legislature’s action from July 1, 2011 as “eleventh-hour changes to remedial voting provisions,” she concluded that Applicants’ concededly “legitimate regulatory interests do not outweigh the burden on voters whose right to vote in the upcoming election would be burdened by the joint effect of the statute and the directive.” App. 29a. III. REASONS FOR GRANTING A STAY
“To obtain a stay pending the filing and disposition of a petition for a writ of certiorari, an applicant must show (1) a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari; (2) a fair prospect that a majority of the Court will vote to reverse the judgment below; and (3) a likelihood that irreparable harm will result from the denial of a stay.” Hollingsworth v. Perry, 130 S. Ct. 705, 709-10 (2010).5 Applicants meet this test; a stay is therefore appropriate.

5

The district court had subject-matter jurisdiction under 28 U.S.C. §§ 1331,

1343(a)(3), and 1343(a)(4). Applicants timely appealed the district court’s order granting

the preliminary injunction on September 4, 2012. Jurisdiction in the court of appeals was

proper under 28 U.S.C. § 1292(a)(1). The Sixth Circuit’s decision was issued on October 5,

2012, and Applicants have promptly brought this Application to the Court. The Application

is made within the time limits for petitioning for certiorari. See Rule 13.1. Applicants have

also complied with Supreme Court Rule 23.3. After the district court issued its preliminary

injunction, Applicants appealed the injunction and sought a stay from the district court

judge. App. 30a; see Fed. R. App. 8. The district court denied the motion to stay, App. 30a-

35a, and the Sixth Circuit, sua sponte expedited the appeal obviating the need for a stay

pending appeal, 6th Cir. Briefing Letter (Sept. 4, 2012). Moreover, because the standard for

reviewing a preliminary injunction is the same as whether to grant a stay pending appeal,

see Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153

(6th Cir. 1991), and because Election Day is rapidly approaching, seeking a stay pending

certiorari from the Sixth Circuit would have been both impractical and futile, see Western

Airlines, Inc. v. Teamsters, 480 U.S. 1301, 1304-05 (1987).

21

A. There Is A “Reasonable Probability” That The Court Will Grant Certiorari And A “Fair Prospect” That The Court Will Reverse The Decision Below Because It Squarely Conflicts With Controlling Precedent.
Respondents pled only a straightforward disparate treatment claim—i.e., that military voters and their families were granted a greater opportunity to cast in-person absentee ballots than non-UOCAVA voters—and did not plead a claim that the modest reduction of non-UOCAVA in-person absentee voting burdened their fundamental right to vote. App. 75a-77a. Respondents themselves acknowledged that this was their claim. App. 184a-186a. Thus, the Anderson/Burdick test should not apply here. See Anderson, 460 U.S. at 786-87 n.7; see Norman v. Reed, 502 U.S. 279, 288 n.8 (1992); see, e.g., Biener v. Calio, 361 F.3d 206, 214-15 (3d Cir. 2004). The Sixth Circuit disagreed on both counts.
But the Court need not resolve that dispute to grant the application for stay. Even if Respondents pled a violation of their fundamental right to vote, there was no legal basis for granting a preliminary injunction under the Anderson/Burdick balancing test. No matter how Respondents’ cause of action is framed, it fails because this case is on all fours with McDonald. O.R.C. § 3509.03 is an absentee voting law that does not disenfranchise any voters given the ample alternative means of casting a ballot. The law should easily be upheld given the de minimis burden it imposes and the State’s important regulatory interests in preparing for Election Day and accommodating UOCAVA voters.
22

1. The Anderson/Burdick Balancing Test The Anderson/Burdick “balancing approach” arises out of the Court’s recognition 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); see also Burdick, 504 U.S. at 433 (“[A]s 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 process.” (citation omitted)). Because every aspect of a state elections code “inevitably affects—at least to some degree—the individual’s right to vote and his right to associate with others for political ends,” the Court has adopted a “balancing approach” for analyzing such challenges. Anderson, 460 U.S. at 788; see also Storer v. Brown, 415 U.S. 724, 729-30 (1974) Burdick, 504 U.S. at 433-34; Crawford, 553 U.S. at 189-90 (Stevens, J.). The analysis is two-fold. First, a court must examine the “character and magnitude of the asserted injury” to the plaintiffs’ constitutional rights. Anderson, 460 U.S. at 789. Second, the court must “identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule.” Id. If the plaintiffs’ rights are subjected to “severe” restrictions, “the regulation must be ‘narrowly drawn to advance a state interest of compelling importance.’” Burdick, 504 U.S. at 434 (quoting Norman, 502 U.S. at 289). If the state law imposes only a minimal burden on the right to vote, however, then the interest of the state in regulating elections is “generally sufficient” to justify the restrictions. Anderson, 460 U.S. at 788; see also App. 25a (White, J., concurring in part and dissenting in
23

part) (explaining that the test is “flexible enough to approximate the rational-basis test when appropriate, i.e., where the burden is slight, the required showing by the state is corresponding light”).
2. O.R.C. § 3509.03 Does Not Burden The Right To Vote. McDonald establishes as a matter of law that Ohio’s modest reduction of up to three days of in-person absentee voting imposes the lowest possible burden on Respondents’ ability to cast a ballot. McDonald involved an Illinois law that made absentee ballots available only to four classes of persons. 394 U.S. at 803-04. Illinois first made absentee ballots available in 1917 only to those “who would be absent from the county on business or other duties.” Id. at 804. The legislature gradually expanded absentee voting to three other classes, including those physically incapacitated. Id. The plaintiffs were unsentenced inmates awaiting trial in jail who had sought absentee ballots because of their “physical inability” to appear at the polls on Election Day. Id. When the applications for absentee ballots were refused, they filed suit. In declining to apply heightened scrutiny, the Court concluded that the Illinois law did not infringe a fundamental right. The only constitutional right at issue was the right to vote, because there is no independent constitutional “right to receive absentee ballots.” Id. at 807. The sole question thus was whether Illinois’ absentee-ballot law “ha[d] an impact on [the plaintiffs’] ability to exercise the fundamental right to vote.” Id. It did not. First, the law did not facially “deny the exercise of the franchise.” Id. at 80708. Second, there was no proof that “Illinois ha[d] in fact precluded [the plaintiffs]
24

from voting.” Id. at 808. The record was “barren” of any indication that Illinois would not take steps—such as providing in-jail polling booths or transportation to the polls—to allow the plaintiffs to vote. Id. at 808 n.6. The record thus did not show that the plaintiffs would be “absolutely prohibited from exercising the franchise.” Id. at 809 (emphasis added). The Court applied rational basis review and upheld the law. Id. at 809-10.
In the wake of McDonald, the Court has found that an absentee-ballot law infringed on the right to vote only when it could be (or had been) proven that the plaintiffs had been disenfranchised. In Goosby v. Osser, the Court determined that the allegations, if true, would prove that a Pennsylvania absentee-ballot law “absolutely prohibit[ed] [the jailed plaintiffs] from voting.” 409 U.S. 512, 521 (1973). Incarcerated persons could not vote absentee, and the plaintiffs alleged that requests for alternative means of voting had been denied. Id. at 522. The Court similarly concluded in O’Brien v. Skinner that a New York absentee-ballot law “completely denied the ballot.” 414 U.S. 524, 530 (1974); id. at 525-27, 530 (finding that jailed persons could not vote absentee and proof that the plaintiffs had been denied alternative means of voting).
The principles following from McDonald, Goosby, and O’Brien are clear. There is no constitutional right to alternative forms of voting for their own sake. McDonald, 394 U.S. at 807. The constitutionally-protected right is the right to participate in the election, and a state’s failure to provide absentee voting or other accommodations does not infringe on that right unless there is proof that ballot
25

access would otherwise be “completely denied.” O’Brien, 414 U.S. at 530. The Court has never deviated from this understanding. Absentee voting is “an indulgence—not a constitutional imperative that falls short of what is required.” Crawford, 553 U.S. at 209 (Scalia, J.) (emphasis added).
O.R.C. § 3509.03 plainly does not infringe a fundamental right under this line of cases. Like McDonald, this case concerns the availability of one type of absentee voting. Ohio offers two types of absentee voting—by mail and in-person—though all absentee ballots are requested, verified, and tabulated in the same way. See supra at 8-9. Although non-UOCAVA voters still have 230 hours of in-person absentee voting, more than 750 hours to vote absentee by mail without excuse, and 13 hours of voting on Election Day, Respondents have chosen to challenge an Ohio law that merely moves a deadline for non-UOCAVA in-person absentee voting slightly earlier than for UOCAVA in-person absentee voting. Because there is no constitutional right to absentee voting, however, the question—as in McDonald—is whether the record shows that the law absolutely prohibits non-UOCAVA voters from voting. It does not.
To begin, O.R.C. § 3509.03 does not on its face “deny [non-UOCAVA voters] the exercise of the franchise.” McDonald, 394 U.S. at 807-08. Nor is there evidence that the legislature “has in fact precluded [non-UOCAVA voters] from voting.” Id. at 808. Not only is the record “barren” of any proof that Ohio has affirmatively denied non-UOCAVA voters the right to vote, id. at 808 n.6, it is replete with facts showing that they still have ample opportunity. The Secretary has mailed absentee
26

ballot applications to more than 6 million voters, and non-UOCAVA voters still have 230 hours to vote in-person absentee, more than 750 hours to vote absentee by mail, and 13 hours on Election Day to vote at the polls. As the district court recognized, Ohio “is probably one of the most liberal states in the country with regard to voting rights.” App. 155a. Like McDonald, then, there is no evidence that the affected voters will be “absolutely prohibited from exercising the franchise.” 394 U.S. at 809.
3. The State’s Regulatory Interests Are Sufficient To Justify Any De Minimis Burden On Non-UOCAVA Voters.
Because O.R.C. § 3509.03 does not interfere with Respondents’ right to vote in a fundamental way, it may be set aside “only if no grounds can be conceived to justify” it. McDonald, 394 U.S. at 809. Given the need to prepare for Election Day, it was entirely rational for the Ohio legislature generally to end in-person absentee voting at 6:00 p.m. on the Friday before Election Day. Each county board of elections is extremely busy during that period. See supra at 15-16. Tasks that must be completed during the last few days prior to Election Day include: compiling final poll books, which cannot be completed until in-person absentee voting has concluded; processing absentee ballots; and setting up the physical spaces where Election Day voting will take place (in a large county like Franklin County, for example, there are over 500 polling locations). App. 105a-107a.
The Ohio legislature’s decision to accommodate military voters and their families over this three-day period does not undermine the legitimate interest in preparing for Election Day. UOCAVA voters face unique challenges, including the
27

possibility of a sudden and unexpected deployment, which can be mitigated by the availability of in-person absentee voting over these three days. It is also reasonable to believe that the number of UOCAVA voters that could benefit from the special accommodation would be small enough so as not to disrupt the other legislative goal of reserving time for Election Day preparation. App. 107a. The Ohio legislature’s “legitimate interests” in limiting in-person absentee voting to military voters and their families while local election boards prepare for Election Day is more than “sufficient to outweigh the limited burden” imposed by the earlier deadline for nonUOCAVA voters. Burdick, 504 U.S. at 440; Crawford, 553 U.S. at 190 (Stevens, J.). Nothing more is required to sustain the law.
4. The Sixth Circuit’s Reasons For Striking Down O.R.C. § 3509.03 Are Unsustainable.
The Sixth Circuit principally held that this case is different from McDonald because Respondents had proven that “Ohio voters will in fact be precluded from voting without the additional three days of in-person early voting.” App. 11a. But the court was unwilling to even stand by its own claim. The court admitted that O.R.C. § 3509.03 “does not absolutely prohibit early voters from voting,” id. 14a, and that the “burden on non-military voters is not severe,” id. 15a. These concessions alone make the case indistinguishable from McDonald.
The Sixth Circuit also curiously relied on the accommodation granted to UOCAVA voters as a basis for finding that non-UOCAVA voters had been denied the right to vote. Thus, even though the court held that this was a fundamental right to vote case—not a disparate treatment case that would have been subject to
28

traditional rational-basis review—it somehow found that the statute would have been constitutional if the legislature had curtailed in-person absentee voting of “all Ohio voters” instead of just non-UOCAVA voters. Id. Contrary to its own holding, then, the court of appeals suggests that it is only Ohio’s special accommodations of military voters in those three days—and not the burden on non-UOCAVA voters— that marks the statutory system as unconstitutional.6 Yet if the Sixth Circuit truly believed that O.R.C. § 3509.03 disenfranchises voters, which the law absolutely does not, the court would not have found that the constitutional violation could be cured by imposing the same burden on other voters. This kind of confused reasoning results from shoehorning a non-meritorious disparate treatment claim into the Anderson/Burdick framework.
The Sixth Circuit had to hedge its claim of disenfranchisement and mix and match its rationale for striking down the law because O.R.C. § 3509.03 does not deny any voter or class of voters access to the ballot and nothing in the record indicates the contrary. Although Applicants have never stipulated to the admissibility or relevance of any of the reports and studies that Respondents lodged with the district court, see R.35, PID 1120, the Court can credit every one of them and there would still be nothing in the record supporting the conclusion that any class of voters (or any voter at all) has been disenfranchised. At most, as Judge

6

The Sixth Circuit also failed to grapple with the fact that UOCAVA voters had extra

time to vote absentee in-person even prior to the 2011 change in the law. Thus, the

preliminary injunction, which restored the status quo ante, still provides one extra day—

Election Day itself—in which UOCAVA voters are permitted to vote absentee in-person at

their local Board of Elections office rather voting at their usual polling place with other

voters. The Sixth Circuit never suggested that providing this modest accommodation was

constitutionally suspect.

29

White explained, App. 25a, these reports and studies show that approximately 105,000 (or 2%) of the over 5,000,000 Ohioans who cast a ballot in the 2004 election chose to do so via in-person absentee voting on the days in question, and that those voters were more likely than Election-Day voters to be “women, older, and of lower income and education attainment,” id. 5a. The most these studies and reports show is that certain voters preferred voting on these days. But the Equal Protection Clause does not include a non-retrogression principle. “Convenience cannot be equated with necessity without more.” App. 25a (White, J.) (citation omitted). Equating convenience with necessity creates a one-way ratchet that places the voting system of myriad other states in constitutional jeopardy if they decided to make changes. See Crawford v. Board of Education of the City of Los Angeles, 458 U.S. 527, 535 (1982) (“We . . . reject[] the contention that once a State chooses to do ‘more’ than the Fourteenth Amendment requires, it may never recede. We reject an interpretation of the Fourteenth Amendment so destructive of a State’s democratic processes and of its ability to experiment.” (footnote omitted)).
In fact, none of the studies “consider the extent to which these voters would or could avail themselves of other voting options, either by mail ballot or in-person absentee ballots at other times, or in-person voting on election day.” App. 25a. (White, J.). Contrary to the Sixth Circuit’s assertion, id. 11a, it was only Applicants that submitted documentation on this issue, id. 129a. Applicants submitted scholarly work demonstrating that in-person absentee voting has a negligible effect on turnout. App. 129a (“We remain skeptical of those who advocate in favor of early
30

voting reforms primarily on the basis of increased turnout. Both these results, and prior works in political science, simply do not support these claims.”).7 Thus, even if the district court had actually made a factual finding of disenfranchisement, which it did not,8 such a finding would be unsustainable. Given the lack of any support in the record for a claim of disenfranchisement, and the contrary documentation that Applicants submitted, a finding on this point would have been clearly erroneous. See United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948).
In reality, both the district court and the Sixth Circuit concluded that this class of voters would be disenfranchised based on nothing more than judicial supposition. The district court acknowledged at oral argument that it is “only an assumption” that “those 100,000 or whatever the number will be this time are not going to vote because of this change in the law.” App. 189a. The Sixth Circuit likewise assumed that because, according to Respondents’ studies, those who voted on these days were more likely to have “lower incomes and less education,” id. 12a, than other voters, they “may be unable to vote on Election Day or during the workday at local boards of elections because of work schedules,” id. 14a-15a (emphasis added). This type of speculation is woefully insufficient to sustain a claim that any voter or class of voters has been disenfranchised. See Crawford, 553

7

See also Lynn Hulsey, “Easier” Voting In State Showing Little Impact: Absentee and

Early Voting Are Up, but Election Day Voting Is Down, Meaning No Overall Increase,

Dayton Daily News (Aug. 28, 2012), available at http://www.daytondailynews.com/news/

news/national-govt-politics/impact-small-from-easier-voting/nRMbg/.

8

The district court’s unadorned statement that some unknown group of voters will be

disenfranchised can hardly be considered a “finding of fact” under the Federal Rules of Civil

Procedure. See Fed. R. Civ. P. 52(a)(1)-(2).

31

U.S. at 202 n.20 (Stevens, J.); Storer, 415 U.S. at 738-39; see also Pullman Co. v. Knott, 235 U.S. 23, 26 (1914) (a statute “is not to be upset upon hypothetical and unreal possibilities, if it would be good upon the facts as they are”).
The Sixth Circuit’s decision is also unsustainable on its own terms. Secretary Husted has mailed an absentee ballot application to every registered voter in “active” status in Ohio and every registered voter in Ohio who voted in the 2008 presidential election, even if not in “active” status. See supra at 1. To cast a ballot, then, a voter need not make it to the polls at all—he or she need only use the form that will arrive unsolicited at his or her doorstep and return the absentee ballot by mail. No excuse is required to vote absentee. The Sixth Circuit never explains why these voters cannot vote by mail. Poorer and less educated voters participate in states like Oregon that generally allow voting only by mail.
But even if the focus is on in-person voting, there is no reason to accept the Sixth Circuit’s unfounded assumption that poorer and less educated voters will not find the time to cast an absentee ballot during the 230 hours of in-person absentee voting or to cast a ballot on Election Day. Poorer and less educated voters fully participate in elections in the many states that do not allow any early in-person voting or require an excuse to vote absentee. In sum, given that Ohio has perhaps the most generous system of in-person voting in the entire country with or without the three days in question, the assertion that O.R.C. § 3509.03 disenfranchises any Ohio voter is not credible.
32

Judge White’s rationale for finding that Ohio law disenfranchised voters is equally untenable. While correctly rejecting the majority’s reasoning, she found that other “facts on the ground in Ohio” dictate the same conclusion. App. 24a. But Judge White’s conclusions are not based on “facts” at all. She adopted a kind of “butterfly effect” theory of disenfranchisement in which voters would be unable to vote because eliminating these days would lead to crowding on Election Day, which will lead “to long lines and unreasonable delays at the polls, which in turn will cause some voters to abandon their attempts at voting, as happened in 2004.” App. 27a. This is just more judicial supposition. Judge White relied on an amicus brief from Cuyahoga County that, in turn, relied on a Sixth Circuit decision that ruled at the motion to dismiss stage that such “allegations, if true, established” a possible equal protection violation. See League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 471 (6th Cir. 2008). There is nothing in the record of this case that long lines have in the past—or much less will in the upcoming election—“cause some voters to abandon their attempts at voting.” App. 27a (White, J.).
In any event, there is no evidence that eliminating in-person absentee voting on these three days (especially since most counties have never offered in-person absentee voting on all three days in any election) will cause the kind of problems that purportedly occurred in 2004. Ohio has not returned to that state of affairs. In 2004, there was only absentee voting with an excuse. Now Ohio has 230 hours of no-excuse, in-person absentee voting and more than 750 hours of no-excuse absentee voting by mail. Moreover, both the majority and Judge White assumed
33

that there is no longer after-hours voting. App. 11a-12a; id. 25a-26a (White, J.). But that is factually incorrect. On October 9, boards are required to be open until 9:00 p.m. From October 22, 2012 through October 26, 2012 and from October 29, 2012 through November 1, 2012, county boards will remain open for in-person absentee voting until 7:00 p.m. and the polls will remain open on Election Day until 7:30 p.m. App. 133a. Judge White’s unsubstantiated and misguided “fear” that these changes will disenfranchise certain vague categories of voters provides no firmer basis to declare O.R.C. § 3509.03 facially unconstitutional than the dissent’s similar concerns in Crawford.
At bottom, neither the majority nor the concurrence provided a legitimate basis for declaring that this change to in-person absentee voting will disenfranchise any voter or class of voters. And absent a proper finding of disenfranchisement, the remainder of the Sixth Circuit’s decision unravels. For instance, the court found the Ohio legislature’s interest in preparing for Election Day and providing special accommodations for military voters and their families insufficient only because of its conclusion that O.R.C. § 3509.03 severely burdened the right to vote. But given the de minimis burden that this change in law imposes, the interests put forth by the State are more than “sufficient to justify the restriction.” App. 15a (citing Burdick, 504 U.S. at 434); see also Crawford, 553 U.S. at 191 (Stevens, J.) (the restriction need only be supported “by relevant and legitimate state interests sufficiently weighty to justify the limitation” (emphasis added); id. at 204 (Scalia, J.)
34

(the State’s “important regulatory interests” are sufficient unless the law “severely restrict[s] the right to vote”).
The Sixth Circuit’s criticism of these interests lacks merit in any event. The court found that documentation in the record contradicted the assertion that county boards needed these three days to prepare for Election Day. App. 14a-15a. But this collateral attack on the legislation is impermissible under Crawford. There, Indiana’s voter identification law was justified by the need to prevent voter fraud even though “the record contain[ed] no evidence of any such fraud actually occurring in Indiana at any time in its history.” 553 U.S. at 194-95 (Stevens, J.). The relevant issue is whether the interest put forward by the State is legitimate; not whether litigants can mount a challenge to the magnitude of the interest in litigation. Not even the Sixth Circuit disputed the legitimacy of Ohio’s interest in preparing for Election Day. Nor could it. See id. at 197 (Stevens, J.); Diaz v. Cobb, 541 F. Supp. 2d 1319, 1335-40 (S.D. Fla. 2008).9
Although the Sixth Circuit also criticized Ohio’s interest in accommodating UOCAVA voters, it ultimately accepted the interest as entirely legitimate. The court found it a “worthy and commendable goal” given that “members of the

9

The Sixth Circuit faulted Applicants for not introducing “specific evidence to refute”

the assertions of Cuyahoga County. App. 14a. But the court fails to mention that this

“evidence” is an amicus brief by a county executive with no responsibility for conducting

elections—not the county board of elections—and that it was submitted after briefing had

concluded on the preliminary injunction motion and after oral argument had been held.

And Applicants submitted ample support demonstrating the legitimacy of the interests

underlying O.R.C. § 3509.03. In any event, whether a few Ohio counties wish to offer in-

person absentee voting during these three days says nothing about the State’s interest in

ensuring that all county boards of elections have sufficient time to prepare. Other counties

may have wished to take a different path or view the issue differently. But it is the

legislature’s evaluation of these considerations that matters to the analysis here.

35

military and their families . . . constantly face the possibility of a sudden and unexpected deployment.” Id. 15a-16a. Nonetheless, the court found the interest insufficient to support the distinction (even if legitimate in the abstract) because “any voter could be suddenly called away and prevented from voting on Election Day.” Id. But a legislature is fully within its rights “to take reform ‘one step at a time.’” McDonald, 394 U.S. at 809 (quoting Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 489 (1955)). The legislature is not required “to cover every evil that might conceivably have been attacked.” Id. Indeed, the Sixth Circuit’s reasoning would call into question many protections afforded to the military and their families under federal and state law. See supra at 9-11. Laws protecting military voters should not be subject to this kind of narrow tailoring requirement—regardless of whether these voters are deployed or residing in their home state. In either case, federal and state government should be able to provide them special protections without having to meet strict scrutiny.
5. No Equitable Factor Warrants Upholding The Preliminary Injunction Here Given The Lack Of A Likelihood Of Success On The Merits.
The Sixth Circuit concluded that the equitable considerations all followed from its analysis of the merits. App. 19a-20a. Indeed, throughout this litigation Respondents have offered no reason other than constitutional injury—under the guise of disenfranchisement—as providing an equitable basis for enjoining O.R.C. § 3509.03. Thus, the propriety of the preliminary injunction turns entirely on the merits of Respondents’ legal claims. See, e.g., John Doe No. 1 v. Reed, 130 S. Ct. 2811, 2821 (2010); Brunner v. Ohio Republican Party, 555 U.S. 5 (2008).
36

Because Respondents are unlikely to prevail on those claims, which depend on reasoning that squarely conflicts with the precedents of this Court, Applicants have shown a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari and a fair prospect that a majority of the Court will vote to reverse the decision below.
B. There Is A Likelihood That Applicants Will Suffer Irreparable Harm In The Absence Of A Stay.
Applicants will suffer two distinct types of irreparable injury in the absence of a stay, each resulting from the injunction’s disruption and interference with the State’s electoral processes.
First, “[a]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” New Motor Vehicle Bd. of California v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers) (staying injunction); see also Maryland v. King, --- S. Ct. ---, 2012 WL 3064878, at *2 (July 30, 2012) (Roberts, C.J., in chambers) (same). This type of irreparable injury to a State’s sovereign interests is only magnified in the context of elections. Because the “Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections,” Gregory v. Ashcroft, 501 U.S. 452, 461-62 (1991) (internal quotations omitted), each “State indisputably has a compelling interest in preserving the integrity of its election process,” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (citation omitted). Accordingly, the Court has cautioned that federal courts should not rewrite the rules governing the electoral process in the waning days
37

before an election, especially because “[c]ourt orders affecting elections . . . can themselves result in voter confusion and consequent incentive to remain away from the polls.” Purcell, 549 U.S. at 4-5; see also Summit County Democratic Central & Executive Comm. v. Blackwell, 388 F.3d 547, 551 (6th Cir. 2004).
There can be no doubt that the State of Ohio, and thus Applicants (as the state officials charged under Ohio law with the duty to administer and enforce the State’s election laws), will suffer such ongoing irreparable injury in the absence of a stay. The preliminary injunction declares HB 224 and SB 295 (which amended O.R.C. § 3509.03 to move the deadline for in-person absentee voting to 6:00 p.m.) unconstitutional and enjoins Applicants from enforcing these laws. This case falls squarely within the rule of New Motor Vehicle Board and King.
Second, Applicants will suffer irreparable injury in the absence of a stay by leaving the State with inadequate time and resources to prepare for Election Day. Ohio’s elections officers and its eighty-eight county boards of elections are “extremely busy during the Saturday, Sunday, and Monday immediately preceding any Election Day.” App. 105a. In those three days, they must undertake numerous tasks. See supra at 15-16. In the absence of a stay, Ohio and its eightyeight counties will have to re-deploy Ohio election officials away from these important duties to accommodate in-person absentee voting. The risk that such forced reallocation of limited state resources (to accommodate voting that is precluded by Ohio’s election laws) will actually hamper Election Day voting is quite real. A stay is thus warranted in order to ensure that the State has adequate time
38

and resources to prepare for Election Day—the day on which the vast majority of Ohioans still cast their vote. IV. REQUEST TO TREAT THE STAY APPLICATION AS PETITION FOR
CERTIORARI, GRANT THE PETITION, AND SUMMARILY REVERSE THE DECISION BELOW In addition to granting the application for stay, or in the alternative, Applicants ask the Court to treat the application as a petition for certiorari, grant the petition, and summarily reverse the decision below. S. Ct. R. 16.1; see, e.g., Purcell, 549 U.S. at 2. Summary disposition is appropriate where “the lower court result is so clearly erroneous, particularly if there is a controlling Supreme Court precedent to the contrary, that full briefing and argument would be a waste of time.” Eugene Gressman et al., Supreme Court Practice 344 (9th ed. 2007). That is precisely the circumstance here. For the reasons set forth above, this case is governed by McDonald as there was no basis in law or fact for the Sixth Circuit’s conclusion that any voter or class of voters will be disenfranchised by this modest reduction of in-person absentee voting. Further briefing and argument will not aid the Court in resolution of the case. Rather, it will prevent Ohio from operating its entirely constitutional absentee voting system for the upcoming election. Accordingly, summary reversal is warranted in this case. V. CONCLUSION For the foregoing reasons, this Court should grant the application for a stay and, or in the alternative, treat the application as a petition for certiorari, grant the petition, and summarily reverse the decision below.
39

Respectfully submitted,
William S. Consovoy* Thomas R. McCarthy Brendan J. Morrissey J. Michael Connolly Wiley Rein LLP 1776 K Street NW Washington, D.C. 20006 Tel: (202) 719-7000 wconsovoy@wileyrein.com Special Counsel for Applicant Ohio Secretary of State Jon Husted
*Counsel of Record

/s/ William S. Consovoy
MICHAEL DEWINE Ohio Attorney General
Stephen P. Carney Richard N. Coglianese Michael J. Hendershot Assistant Attorneys General 30 East Broad Street, 16th Floor Columbus, OH 43215 Tel: (614) 466-2872
Counsel for Applicant Ohio Attorney General Michael DeWine
Date: October 9, 2012

40

CERTIFICATE OF SERVICE I, William S. Consovoy, a member of the bar of this Court, certify that on October 9, 2012, I served a copy of the Emergency Application for Stay Pending Certiorari on the listed counsel of record by Federal Express Priority Overnight, that a courtesy PDF copy was sent to the listed email addresses, and that all persons required to be served have been served.

Donald J. McTigue John Corey Colombo Mark A. McGinnis McTigue & McGinnis 545 E. Town Street Columbus, OH 43215 dmctigue@electionlawgroup.com ccolombo@electionlawgroup.com mmcginnis@electionlawgroup.com
Robert F. Bauer Perkins Coie 700 Thirteenth Street, N.W. Suite 600 Washington, DC 20005 rbauer@perkinscoie.com
Counsel for Plaintiffs-Respondents

James M. Dickerson, Jr. Bingham Greenebaum Doll 255 E. Fifth Street, Suite 2350 Cincinnati, OH 45202 jdickerson@bgdlegal.com
Counsel for Defendants-Intervenors

Dated: October 9, 2012

/s/ William S. Consovoy WILLIAM S. CONSOVOY

41

 
 No. 12A338

In The Supreme Court Of The United States
________________________

JON HUSTED, ET AL., Applicants,
v.

OBAMA FOR AMERICA, ET AL.,
Respondents, ____________________________________

On Petition for a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit
____________________________________

OPPOSITION TO EMERGENCY APPLICATION FOR A STAY PENDING CERTIORARI
____________________________________

Donald J. McTigue Mark A. McGinnis J. Corey Colombo McTigue & McGinnis LLC 545 East Town Street Columbus, Ohio 43215 Tele: (614) 263-7000 Fax: (614) 263-7078
Attorneys for Respondents
Jennifer Katzman Obama for America 130 East Randolph Chicago, IL 60601 Tele: (312) 985-1645

Robert F. Bauer Perkins Coie 700 Thirteenth Street, Suite 600 Washington, DC 20005 Tele: (202) 434-1602 Fax: (202) 654-9104
General Counsel for Respondents Obama for America and the Democratic National Committee

National Voter Protection Counsel for Respondent Obama for America

TABLE OF CONTENTS
INTRODUCTION ......................................................................................................... 1 STATEMENT OF THE CASE...................................................................................... 5
A. Factual Background ..................................................................... 6 B. Proceedings Below ...................................................................... 10 REASONS FOR DENYING A STAY ......................................................................... 16 I. THE APPLICATION SHOULD BE DENIED BECAUSE APPLICANTS FAILED TO SEEK A STAY BELOW, AND FAILED TO DEMONSTRATE THE EXISTENCE OF “THE MOST EXTRAORDINARY CIRCUMSTANCES” ...................................................... 17 II. THE APPLICATION SHOULD BE DENIED BECAUSE APPLICANTS HAVE FAILED TO SATISFY THE STANDARD FOR A STAY................................................................................................................. 19 A. This Court Is Unlikely To Grant Certiorari .............................. 19 B. This Court Is Unlikely To Reverse The Judgment Below ........ 22 C. Applicants Will Suffer No Irreparable Harm, And The
Balance Of Equities In Any Event Strongly Disfavors A Stay ............................................................................................. 31 III. SUMMARY REVERSAL IS UNWARRANTED.............................................. 40 CONCLUSION............................................................................................................ 41

INTRODUCTION This Court does not “grant certiorari to consider fact-bound contentions that may have no effect on other cases.” Philip Morris USA Inc. v. Scott, 131 S. Ct. 1, 3 (2010) (Scalia, J., in chambers). But that, at bottom, is all the applicants are asking the Court to do. The application does not meet this Court’s criteria for granting a stay (let alone for granting certiorari). It should be denied. At the conclusion of an erratic and conflicting set of legislative enactments, the State of Ohio settled on a voting procedure unheard of in any other State in the Nation: it has allowed local election boards to open their polling places to some qualified voters over the last three days prior to Election Day, while precluding those boards from permitting other voters to access those same polling places during the same period. Two federal courts have found that this arbitrary and unprecedented change to the status quo ante should be enjoined, because it would significantly burden tens of thousands of Ohio voters, and would likely violate the Equal Protection Clause. Applicants seek an emergency stay of that injunction, but have utterly failed to carry their burden of showing that a stay is warranted, because they have satisfied none of the equitable factors required to justify such extraordinary relief—applicants have not demonstrated that they would suffer any irreparable harm if the injunction remains in place, any possible injury to applicants would be vastly outweighed by the substantial harm to the voting public occasioned by the State’s inequitable regime, and this Court is in any event unlikely to grant certiorari or reverse the court below. The application should be denied. First, no irreparable harm can possibly flow from the district court’s

preliminary injunction. The Ohio system that the courts below enjoined is as arbitrary as it is unique: nowhere else in the country will an eligible voter be turned away from a single, open polling place because the polling place is open for some voters, but not for that particular voter. The preliminary injunction merely enables all otherwise eligible voters—rather than just a subset of them—to vote at open polling places during certain hours the three days before Election Day. As the courts below found, early voting on these three days will facilitate a smooth and well-functioning process on Election Day for voters and local election officials by permitting some voters to vote who would otherwise add to the length of lines and the burdens on election officials on Election Day. Applicants cannot credibly assert that permitting eligible voters to vote at a time that polls will otherwise be open constitutes irreparable harm. And, as the courts below further emphasized, the very category of voters—members of our military—that the State expresses particular concern for are fully protected under the injunction in effect. In fact, the district court found that the injunction served to secure military voting access over this period above and beyond what applicants’ theory of the case would provide.
To the extent applicants continue to argue, as they did before both lower courts, that the preliminary injunction will “burden” local election officials—and that this burden now constitutes irreparable harm—the district court expressly found as a matter of fact, after a hearing and examination of the evidence submitted, that any such burden would be minimal, and would be offset by the reduced burdens on Election Day. The court of appeals affirmed this finding. This
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Court disturbs the factual findings of two lower courts in only the most extraordinary of circumstances, none of which is presented here.
Applicants’ contention that severe and irreparable harm will arise from continued enforcement of the preliminary injunction is simply not credible. That injunction merely restores the status quo ante that existed in Ohio for the last two elections, in 2008 and 2010, both of which ran smoothly by all accounts—and much more smoothly than 2004, precisely because these more recent elections involve large-scale early voting. Applicants introduced no evidence below that local election boards had been significantly burdened by early voting in the three days before these past two elections. While the injunction restores to local boards the discretion in determining polling days and hours that they have had since 2005, it does not allow the exclusion of a subset of voters from already open polling places.
Indeed, applicants assert a burden on local boards that the boards themselves have not asserted. Not a single county election board filed a brief or affidavit stating that the preliminary injunction would impose any burden. To the contrary, the election boards in some of Ohio’s large counties filed amicus briefs or issued public statements affirming that they are better off under the injunction because the reduced burden on Election Day would more than compensate for any minimal burden from the three days of early voting. And even if applicants can demonstrate some minimal harm, that harm is far outweighed by the harm to voters who are arbitrarily denied the right to vote on the same terms as their fellow citizens—and to the public generally, which will be the victim of the confusion
3

caused by undoing an established voting protocol at this late hour. Second, this Court is unlikely to grant certiorari and reverse. This case
possesses none of the ordinary characteristics that would warrant the Court’s review. The decision below is quintessentially fact-bound: it turns on the unique and confused legislative history in Ohio, involving the interplay between an amalgam of state statutes and a voter-qualified referendum that resulted in the bizarre scheme at issue, including two provisions with completely different and conflicting early voting deadlines for military and overseas voters. Consistent with the fact-intensive nature of the underlying issues, much of the application merely disputes facts found by and relied upon by two courts below—indeed, by all of the lower court judges to have reviewed the case. Relatedly, the decision below does not implicate a legal question of national importance, because the Ohio procedure at issue here is entirely unique. The Sixth Circuit’s decision below therefore will have no impact beyond Ohio’s borders, or, in all likelihood, beyond the upcoming election. Moreover, there is no conflict among lower courts on the issues involved. The application affords no basis for this Court’s review.
Regardless, the Court would not likely reverse the decision below, because that decision is correct. The court of appeals properly applied the long-established and “flexible” standard this Court elaborated in Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992), and recently applied in Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 (2008). Based on the district court’s findings of fact, the court of appeals held that the Ohio system burdened
4

voters, and that applicants were thus required to present justifications for that system sufficient to overcome the burden. Applicants attempt to argue that a different, more deferential standard should apply, but their arguments misread this Court’s cases, and are premised on a requirement that this Court revisit facts conclusively found by two courts below.
There is no basis for the extraordinary relief applicants seek. The application for an emergency stay should be denied.
STATEMENT OF THE CASE In 2004, before the advent of early voting in Ohio, voting machine malfunctions and other administrative breakdowns led to Election Day lines up to twelve hours long, effectively depriving thousands of the opportunity to cast their ballots. See Northeast Coalition for the Homeless v. Husted, No. 12-3916, slip op. at 4 (Oct. 11, 2012);1 League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 477-78 (6th Cir. 2008). To prevent the recurrence of that situation, the General Assembly reformed the electoral system in Ohio by introducing, among other reforms, inperson early voting, which it viewed and administered as an expanded “window” of Election Day voting. Under the early voting system, any duly qualified voter could cast a ballot in-person at a designated polling location, during the 35-day period leading up to Election Day. In the 2008 presidential election, approximately
1 Northeast Coalition for the Homeless involved an equal protection challenge to a different provision of Ohio voting law, under which deficient provisional ballots are rejected even when the deficiency is caused by poll-worker error. Slip op. at 6. A unanimous panel of the Sixth Circuit held that the Ohio system runs afoul of the Equal Protection Clause, applying the same Anderson-Burdick legal standard the Sixth Circuit applied to sustain the injunction below. See slip op. at 16-24; infra at 13-15.
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100,000 Ohioans cast their ballots in-person in the three days preceding Election Day. R.3-3 (Data Compiled by Norman Robbins) at 2.
But in June 2011, the system was arbitrarily changed through a confused and conflicting flurry of legislative enactments, repeals, and technical corrections. The State initially sought to eliminate all early voting over this three-day period, but instead subjected military and overseas (UOCAVA) voters to conflicting deadlines, one allowing for early in-person voting through the election, and the other ending such voting as of 6 p.m. the Friday before Election Day. The deadline for all other (non-UOCAVA) citizens was that same Friday, eliminating the possibility of voting during the three ensuing days for all other eligible voters throughout the State. Thus, as a by-product of the unique circumstances of a technical correction, a referendum, and a repeal, the State created different deadlines for UOCAVA voters, on the one hand, and all other (non-UOCAVA) voters, on the other.
A. Factual Background 1. Ohio’s system of in-person early voting was introduced after the State’s troubled experience during the 2004 General Election, which was marked by “long lines and wait-times that, at some polling places, stretched into the early morning of the following day.” App. 4a. In response to that widespread breakdown, the Ohio General Assembly introduced legislation to expand the vote in Ohio.2 Following the
2 On April 20, 2005—the day that no-fault, in-person absentee voting was first introduced in the State Assembly—Kevin DeWine, the lead sponsor of H.B. 3 (the predecessor of H.B. 234), said “the plan is designed to address voting-related
6

creation of early voting in Ohio, any registered voter could cast an early ballot, inperson, at the site designated by the local elections office, and thereby avoid the risk of losing the vote because of Election Day mishaps.
In-person early voting was a distinct component of the post-2004 reforms that was considered separate from extensions of traditional absentee voting by mail. 74 Ohio Report No. 36, Gongwer News Service, Inc. (Feb. 23, 2005). Rather, the advent of early voting was intended as a way of extending the availability of traditional Election Day voting. As Republican Senator Gary Cates, the sponsor of Substitute House Bill 234, 126th General Assembly (Oct. 19, 2005)—the in-person early voting bill—explained it: “We’re expanding Election Day by a 35-day window.” Carrie Spencer Ghose, Senate Committee Recommends Absentee Voting Bill, Associated Press, Oct. 12, 2005.3 Or in the words of the Ohio Supreme Court, “[t]he general election encompasses the in-person casting of absentee ballots for the election, which is manifestly part of the general election, even though some of it may occur before November 4.” State ex rel. Stokes v. Brunner, 898 N.E.2d 23, 28 (Ohio 2008) (per curiam).
Following its implementation, a substantial number of voters responded by voting early in-person. “Early voting peaked during the 2008 election, when
issues that arose before, during and after the 2004 presidential election.” 74 Ohio Report No. 77, Gongwer News Service, Inc. (Apr. 20, 2005).
3 As Senator Cates later explained: “The concept of a no-fault ballot is something that the general public overwhelmingly supports. It would give voters more flexibility, encourage increased participation in voting, and help alleviate long lines at the polls.” Statement of Senator Gary Cates, available at http://www.ohiochannel.org/MediaLibrary/Media.aspx?fileId=111489&startTime=26 0&autoStart=True (October 18, 2005 at 5:15).
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approximately 1.7 million Ohioans cast their ballots before Election Day, amounting to 20.7% of registered voters and 29.7% of the total votes cast.” App. 4a. Of those, approximately 100,000 voters cast in-person ballots in the three days leading up to Election Day. Id. “In 2010, approximately 1 million Ohioans voted early, and 17.8% of them chose to cast their ballots in person.” Id.
As the Sixth Circuit noted below (affirming a finding of the district court), inperson early voting tends to be used by voters with a substantially different demographic makeup than those who cast their ballots on Election Day:
Voters who chose to cast their ballots early tended to be members of different demographic groups than those who voted on election day. Early voters were “more likely than election-day voters to be women, older, and of lower income and education attainment.” (R. 34-31 (Pls.’ Ex. 27) at 1.) Data from Cuyahoga and Franklin Counties suggests that early voters were disproportionately African-American and that a large majority of early in-person votes (82% in Franklin County) were cast after hours on weekdays, on the weekend, or on the Monday before the election. App. 5a. 2. Notwithstanding the heralded success of early voting in Ohio, in July 2011, Governor Kasich signed into law Amended Substitute House Bill Number 194. H.B. 194, 129th General Assembly (June 29, 2011). This omnibus bill “made broad changes to Ohio election law,” App. 5a, including adding new language to Ohio Rev. Code § 3509.01 to end early voting for non-UOCAVA voters on the Friday preceding Election Day at 6 p.m. Likewise, the Legislature amended § 3511.10 to eliminate the Monday deadline for UOCAVA voters, thus placing those voters on the same footing as non-UOCAVA voters. But the Legislature failed to amend the
8

two preexisting Monday deadlines in the Code: § 3509.03 (for non-UOCAVA voters) and § 3511.10 (for UOCAVA voters). Thus, the result of H.B. 194 was to create inconsistent early-voting deadlines for both UOCAVA and non-UOCAVA voters.
In an attempt to fix these discrepancies, the General Assembly enacted Amended Substitute House Bill Number 224, which made “technical corrections to the laws governing elections.” H.B. 224, 129th General Assembly (July 13, 2011). H.B. 224 corrected the deadlines in §§ 3509.03 and 3511.10 for both UOCAVA and non-UOCAVA voters, bringing consistency for both groups of voters and making Friday the uniform deadline for in-person voting prior to Election Day.
Before H.B. 224 went into effect, however, a referendum petition was filed by more than 300,000 Ohioans to reject H.B. 194 and its early voting restrictions, and instead to retain the existing in-person early voting regime. The effect of this successful petition drive was to suspend the implementation of the law for this election cycle, allowing the voters to pass judgment by casting their ballots for or against the law on the November 2012 General Election ballot. Yet “[w]ith HB 194 on hold, HB 224 served to continue the legislative confusion with conflicting and unclear deadlines.” App. 40a.
In May 2012, in an unprecedented move, the General Assembly preempted a vote on the referendum by repealing H.B. 194 through Substitute Senate Bill Number 295. See S.B. 295, 129th General Assembly (May 8, 2012). But the Legislature neglected to take any action on H.B. 224, which had included the technical corrections to the original errors in H.B. 194. As a result, after all of the
9

legislative maneuvering, the Ohio Revised Code reflected H.B. 224’s technical corrections—and only the technical corrections—which established the Friday before the election as the deadline for non-UOCAVA voters but left two separate deadlines for UOCAVA voters: one on Friday and one on Monday. Moreover, this meant that although the State purported to avoid the November referendum by “repealing” H.B. 194 and restoring the status quo prior to enactment, the changes to early voting at issue in this case slipped past the voters and became Ohio law.
3. In recognition of the legislative oversight and likely confusion, the Secretary of State issued Advisory 2011-07 in October 2011. R.34-18 (Advisory 2011-07). The Advisory provided that, notwithstanding the pending referendum of H.B. 194, early voting for non-UOCAVA voters would end on the Friday before the election. UOCAVA voters, however, would be permitted to continue voting through Election Day. R.34-18 (Advisory 2011-07). The Secretary denied subsequent efforts by local boards of elections to extend the in-person early voting deadline for nonUOCAVA voters. See R.34-21 (Letter from Secretary Husted to the Director and Deputy Director of the Montgomery County Board of Elections (Oct. 25, 2011); R.3422 (Letter from Secretary Husted to the Director of the Darke County Board of Elections) (Oct. 27, 2011).
B. Proceedings Below 1. Respondents filed suit in the U.S. District Court for the Southern District of Ohio on July 17, 2012. R.1 (Compl.). That same day, respondents filed a motion for preliminary injunction, seeking to prohibit the State from implementing or enforcing the “technical amendments” to Ohio Rev. Code § 3509.03 made by H.B.
10

224 and S.B. 295, thereby restoring equal ballot access for UOCAVA and nonUOCAVA voters during the three days preceding Election Day. R.2 (Mot. for P.I.). Applicants opposed the motion.
Cuyahoga County, the most populous county in the state, filed a brief as amicus curiae advocating the need for early voting during the final three days preceding the election. R.38. As Cuyahoga County explained, such voting defrays costs to the County by absorbing a volume of voting that would occur on Election Day and that would strain Election Day machinery and systems. The County explained that the cancellation of early voting during the final three days preceding the election raised the “risk of voting problems on Election Day” that would “interfere[] with th[e] fundamental right” to vote. Id. at 4.4
2. On August 15, 2012, the district court conducted a hearing on respondents’ motion. While the litigation was pending, Secretary Husted suddenly decided to issue a directive setting “uniform business hours” for all Ohio Election Boards during the early voting period up to the last three days prior to Election Day; that uniform schedule eliminated all weekend hours during that time period, including for UOCAVA voters. R.40-1 (Directive 2012-35). In so doing, Secretary
4 The record in the case also includes the Master Plan used by Franklin County to prepare for the election. The Master Plan shows that permitting inperson early voting on an equal basis would not compromise the County’s ability to prepare for Election Day. R.57-2 (Franklin County Letter). On the contrary, the vast majority of the tasks that the Board has to perform are, in fact, completed by the weekend before the election. R.42-4 (Franklin County Calendar). Still another county issued a public statement supporting the restoration of in-person early voting in the last three days prior to the election for all voters. See, e.g., R.57-1 (Mahoning County Press Release).
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Husted asserted that he had decided to “level the playing field on voting days and hours during the absentee period in order to ensure that the Presidential Election in Ohio will be uniform, accessible for all, fair and secure.” Id.
That directive did not instruct election boards to be open the weekend prior to Election Day for UOCAVA voters. But at the August 15 hearing, the State now took yet another position: that local election boards have discretion to determine the extent of ballot access for UOCAVA voters during the three days leading up to Election Day. R.43. Applicants subsequently reiterated that position, stating in a supplemental memorandum filed with the district court that, “[w]hether to be open those three days for in-person absentee voting by UOCAVA voters remains in the discretion of the individual county boards of election . . . [unless] the Secretary exercises his authority to issue a future directive.” R.44 (Defs’ Resp. to Pls’ Supp. Mem.). No such directive has been issued.
3. The district court granted the preliminary injunction. The court found that the challenged law, as interpreted by the Secretary of State, burdened the right to vote without sufficient justification. In short, the State had, by “arbitrary and disparate treatment, value[d] one person’s vote over that of another.” App. 56a. Moreover, the district court specifically found that the justifications offered post hoc by applicants could not be credited in light of the record evidence that (a) the State had not acted at any time to secure the alleged interests of military voters, whose access to polling places was left to the discretion of each County Board; and (b) the State had failed to substantiate its claim that counties would be unable to provide
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for early voting over this period while preparing for Election Day, both of which they did to general acclaim in 2008. Accordingly, the district court enjoined the operation of § 3509.03 to the extent it created a different deadline for non-UOCAVA voters, and restored early voting for such voters at open polling places during the three days preceding Election Day. App. 58a. The injunction had no effect on the pre-existing rights of military voters and their families to vote in-person in the three days prior to Election Day. Indeed, the district court made clear that its order did not contract in any way the access of military voters to weekend early voting. App. 56a. To the contrary, the order secured it, which the Secretary of State declined to do in leaving UOCAVA voting over this period to the discretion of county boards. The effect of the district court’s injunction was to restore the status quo that existed before the legislative confusion, such that the upcoming elections would operate just as the highly successful election of 2008 and 2010 did.
4. Instead of moving to implement the district court’s order or seeking a stay of that order, the Secretary of State chose to disregard the orders of the district court by issuing a directive prohibiting county boards of election from establishing any business hours in the three days prior to Election Day. R.50-1 (Directive 201240). Respondents filed an emergency motion to enforce the district court’s preliminary injunction. R.50 (Pls.’ Emergency Motion to Enforce Judgment). The district court immediately scheduled a hearing at which it instructed the Secretary to appear in person. R.52. In response, the Secretary issued an apology, rescinded the directive (R.54), and subsequently moved the district court to stay its own order
13

pending appeal. The district court denied the stay request. R.60 (Order Denying Motion for Stay). Defendants appealed to the U.S. Court of Appeals for the Sixth Circuit, but did not ask that court to stay the district court’s order.
5. a. On October 5, 2012, a panel of the Sixth Circuit affirmed the district court’s grant of a preliminary injunction, agreeing that respondents were likely to succeed on the merits of their equal protection claim. Relying on a body of wellestablished Sixth Circuit law, and this Court’s decision in Bush v. Gore, the court noted that “‘[t]he right to vote is protected in more than the initial allocation of the franchise,’” the court explained that “‘[e]qual protection applies as well to the manner of its exercise.’” App. 4a (quoting League of Women Voters, 548 F.3d at 477, in turn quoting Bush v. Gore, 531 U.S. 98, 104 (2000)).5 The court of appeals concluded, based on facts found by the district court, that the burden on voters from the Ohio in-person early voting system was “significant.” App. 51a; see also App. 11a. Because the court found a burden on voters, it applied the Anderson-Burdick standard, under which applicants were required to show a sufficient justification for the burden on voters. App. 8a-11a. And based on factual findings concerning the Ohio system’s burden on voters, the court rejected applicants’ contention that a lesser standard of review applies. App. 10a-12a.
Applying the Anderson-Burdick standard, the court of appeals found that applicants failed to justify the burden on voters. App. 12a-18a. As to applicants’
5 The district court also held that respondents themselves “will suffer irreparable injury if in-person early voting is not restored the last three days before the Election Day.” App. 57a.
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representation that the cancellation of early voting for non-UOCAVA voters was “necessary to give local county boards of elections enough time to prepare for Election Day” (App.13a), the court of appeals concluded: “[w]ith no evidence that local boards of elections have struggled to cope with early voting in the past, no evidence that they may struggle to do so during the November 2012 election, and faced with several of those very local boards in opposition to its claims, the State has not shown that its regulatory interest in smooth election administration is ‘important,’ much less ‘sufficiently weighty’ to justify the burden it has placed on non-military Ohio voters.” App. 15a. The court of appeals also rejected applicants’ argument that challenges faced by military service members—who, as explained, are not burdened in any way by the preliminary injunction—justified the turning away of other voters from the ballot box. See App. at 15a-16a.
Finally, the court of appeals affirmed the district court’s findings that the balance of equities favored respondents. See App. at 19a.
b. Judge White wrote separately, “join[ing] in the affirmance but arriv[ing] there by a different route.” App. 21a. She concluded that against the backdrop of Ohio’s notoriously troubled 2004 elections, and in light of the widespread reliance on early voting in the years since its adoption in Ohio, these “eleventh-hour changes to remedial voting provisions that have been in effect since 2005” were “properly considered as a burden in applying Anderson/Burdick balancing.” Id. at 27a-28a. Accordingly, she found that the State’s “legitimate regulatory interests do not outweigh the burden on voters whose right to vote in the upcoming election would
15

be burdened” by the change in law. Id. at 29a. 6. Applicants failed to seek a stay of the district court’s preliminary
injunction pending a petition for a writ of certiorari to this Court. Instead, they filed the instant application, seeking extraordinary stay relief from Justice Kagan in the first instance.
REASONS FOR DENYING A STAY “To obtain a stay pending the filing and disposition of a petition for a writ of certiorari, an applicant must show (1) a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari; (2) a fair prospect that a majority of the Court will vote to reverse the judgment below; and (3) a likelihood that irreparable harm will result from the denial of a stay.” Hollingsworth v. Perry, 130 S. Ct. 705, 709-10 (2010). Further, “[t]he conditions that are necessary for issuance of a stay are not necessarily sufficient.” Barnes v. ESystems, Inc. Group Hosp. Medical & Surgical Ins. Plan, 501 U.S. 1301, 1304 (1991) (Scalia, J., in chambers) (emphasis in original). “It is ultimately necessary, in other words, ‘to “balance the equities”—to explore the relative harms to applicant and respondent, as well as the interests of the public at large.’” Id. at 1305 (quoting Rostker v. Goldberg, 448 U.S. 1306, 1308 (1980) (Brennan, J., in chambers) (citations omitted)). “Denial of . . . in-chambers stay applications” pending the filing of a petition for certioriari “is the norm; relief is granted only in ‘extraordinary cases.’” Conkright v. Frommert, 556 U.S. 1401 (2009) (Ginsburg, J., in chambers) (citing Rostker, 448 U.S. at 1308). The “party requesting a stay bears the burden of showing that the circumstances justify” such extraordinary relief. Nken v. Holder,
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556 U.S. 418, 433-34 (2009). Apart from the familiar balancing of equitable factors, stay applications in
this Court are subject to an additional requirement: Rule 23.3 mandates that “[a]n application for a stay shall set out with particularity why the relief sought is not available from any other court or judge.” Moreover, “[e]xcept in the most extraordinary circumstances, an application for a stay will not be entertained unless the relief requested was first sought in the appropriate court or courts below or from a judge or judges thereof.” Id. The State has disregarded the requirements of Rule 23.3.
Because applicants have failed to carry their burden of justifying the extraordinary relief they seek, their application should be denied. I. THE APPLICATION SHOULD BE DENIED BECAUSE APPLICANTS
FAILED TO SEEK A STAY BELOW, AND FAILED TO DEMONSTRATE THE EXISTENCE OF “THE MOST EXTRAORDINARY CIRCUMSTANCES” The application for a stay pending certiorari fails at the threshold because applicants failed to seek this relief “in the appropriate court or courts below or from a judge or judges thereof.” Sup. Ct. R. 23.3. It is well established that, “[b]efore seeking a stay from the Supreme Court or from a single Justice, a stay must first be requested from the court below or a judge thereof.” Eugene Gressman et al., Supreme Court Practice 860 (9th ed. 2007) (hereinafter “Supreme Court Practice”) 771 (emphasis added); see id. (characterizing Rule 23.3 as “mandatory as to this”); cf. Conforte v. C.I.R., 459 U.S. 1309, 1312 n.2 (1983) (Rehnquist, J., in chambers) (“Applicant’s failure to seek a stay in the Court of Appeals provides an alternative
17

ground for denial of the stay.”). Applicants freely concede that they did not seek a stay pending certiorari from the Sixth Circuit. Appl. 21 n.5.
Failure to seek relief below is excused only in “the most extraordinary circumstances.” Sup. Ct. R. 23.3. Applicants do not satisfy that exacting standard. Their only explanation, proffered in a footnote, is that “it would have been both impractical and futile” to seek a stay from the court of appeals. Appl. 21 n.5. Applicants rely on Western Airlines, Inc. v. Teamsters, 580 U.S. 1301 (1987), but the circumstances there were truly extraordinary—the Ninth Circuit enjoined a corporate merger a mere 12 hours before the merger was scheduled to take place. Id. at 1304. Here, in stark contrast, the Sixth Circuit issued its opinion on October 5—more than a month before the election, and concerning an issue pertaining only to the last three days before Election Day—leaving ample time for applicants to seek a stay from the court of appeals in the first instance.
Applicants similarly fail to support their claim that any stay request in the Sixth Circuit was foredoomed to fail. See Appl. 21 n.5. They argue that such a request would have been “futile” because it would have been governed by the “same” standard that the court of appeals used to review the district court’s preliminary injunction. Id. But the sole authority they cite on this point does not address the Sixth Circuit’s standard for a stay pending certiorari—it states only that whether to grant a stay pending appeal or a preliminary injunction turns on the same equitable factors. See Michigan Coalition for Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991). But it cannot possibly be true that the
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requirements of Rule 23.3—that a stay must be sought below “[e]xcept in the most extraordinary circumstances”—is inapplicable in every case involving injunctive relief.
This Court’s rules and practice nevertheless require, with only the slimmest of exceptions, that applicants first seek a stay from the court of appeals—i.e., that applicants must argue to the court of appeals not only that certiorari is likely to be granted, but that there is a fair likelihood that the court of appeals will be reversed. Applicants’ supposition that they would not have obtained relief from the Sixth Circuit cannot excuse their failure to comply with the plain dictates of this Court’s Rules. II. THE APPLICATION SHOULD BE DENIED BECAUSE APPLICANTS
HAVE FAILED TO SATISFY THE STANDARD FOR A STAY Even if applicants could satisfy Rule 23’s “most extraordinary circumstances” test, the application should be denied because it fails to satisfy the standard that would justify a stay: certiorari is unlikely to be granted; even if it were granted, the decision below is unlikely to be reversed; applicants will suffer no irreparable harm in the absence of a stay; and the balance of equities strongly favors denying a stay. A. This Court Is Unlikely To Grant Certiorari This case lacks any of the ordinary factors that would counsel in favor of certiorari. Applicants seek highly fact-bound error correction in a circumstance unique to Ohio—and there is no error. Indeed, applicants’ dispute, at its core, is with the sound concurrent findings of fact of the two courts below, thus rendering the grant of certiorari particularly unwarranted.
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Applicants do not allege a conflict among the courts of appeals. On the contrary, they present an intensely fact-bound challenge to the decision below. Applicants’ disagreement with the Sixth Circuit’s decision turns in large part not on questions of law, but on disputes concerning underlying facts determined by both the district court and the court of appeals. Applicants’ central dispute is with the district court’s finding, affirmed by the court of appeals, that “Ohio voters will in fact be precluded from voting without the additional three days of in-person early voting.” Appl. 28 (quoting App. 11a). Applicants discuss at considerable length the merits of reports and studies lodged with the district court concerning the effect of in-person early voting on voter turnout, see id. at 29-31, and list the alternatives to in-person early voting offered to Ohio voters, see id. at 32-34. But there was a place for such evidence to be considered, and that was in the district court. As the finder of fact, the district court reviewed the record and concluded, on the particular facts of this case, that voters would be burdened by the curtailment of early voting. The Sixth Circuit reviewed that finding for clear error and, finding none, affirmed. That should end the inquiry, because, as noted earlier, this Court does not “grant certiorari to consider fact-bound contentions that may have no effect on other cases.” Philip Morris USA Inc., 131 S. Ct. at 3 (Scalia, J., in chambers).
Indeed, the application is not merely fact-bound, but asks this Court, with early voting already underway in Ohio and on the eve of a presidential election, to reverse facts found by the district court and adopted by the court of appeals. Yet this Court does not “undertake to review concurrent findings of fact by two courts
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below in the absence of a very obvious and exceptional showing of error.” Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 336 U.S. 271, 275 (1949); see Branti v. Finkel, 445 U.S. 507, 512 n.6 (1980); Berenyi v. District Director, Immigration & Naturalization Service, 385 U.S. 630, 634 (1967); Supreme Court Practice 4.14, at 271. As detailed below, the findings of the courts below contain no error, let alone a “very obvious and exceptional” one.
Nor do applicants attempt to demonstrate that the question they would present in their petition for certiorari is a recurring one worthy of this Court’s review. Even if applicants’ dispute with the Sixth Circuit did not turn on factual questions, this case would still have no broad significance beyond the specific facts here, because the Ohio procedure at issue is one of a kind. No other State has sought to enact or implement a scheme remotely similar to Ohio’s, allowing polls to be open for early voting for some of its citizens, while disallowing access to those same open polls for others. Indeed, applicants make no effort to demonstrate that any other State in the Nation has ever instituted, or is likely ever to institute, a voting procedure resembling the highly unique (and highly arbitrary) Ohio procedure at issue here. While applicants assert that States such as Texas and Georgia have experimented with various in-person early voting procedures (Appl. 5), none of those statutes exhibits the harm identified by the decision below: offering in-person early voting to some citizens while denying it to others.6 Indeed, this case
6 In any event, the voting regimes in Texas, Georgia, New York, or Pennsylvania that the application describes (Appl. 5) could not possibly be affected by a decision of the Sixth Circuit.
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could plausibly have implications beyond Ohio only if applicants were to succeed in pressing the highly dubious and unprecedented proposition that States must be afforded leeway to allow some citizens but not others into open polling places.
Thus, while the question whether Ohio voters are allowed to vote on the same terms as their fellow citizens is obviously an important one, the legal question the application presents—whether the idiosyncratic Ohio voting procedure at issue here offends the Equal Protection Clause in light of the preliminary factual findings of the courts below—is too inextricably intertwined with the singular and unusual facts of this case to warrant this Court’s review.
Even if this Court believed the Sixth Circuit’s decision was incorrect, that would not ordinarily afford a basis for granting certiorari. See Sup. Ct. R. 10. In any event, for the reasons that follow, the Sixth Circuit’s decision was correct, and there is no cause to disturb it.
B. This Court Is Unlikely To Reverse The Judgment Below The Court is unlikely to reverse the decision below because it is correct. The Equal Protection Clause prohibits states from providing differential access to the ballot box on arbitrary terms. Yet that is precisely what is threatened by the statute under review. On October 2, 2012, 35 days before Election Day, polling places opened across Ohio for all voters.7 But absent the district court’s injunction, on the final three days before Election Day, those polling places will close for
7 Indeed, as noted, the Ohio Supreme Court has explained that, as a matter of state law, the in-person casting of absentee ballots constitutes part of the general election even though some of it may occur before Election Day. State ex rel. Stokes , 898 N.E.2d at 28 (Ohio 2008) (per curiam).
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some—but not all—voters. That selective access to voting, unique to Ohio, has no justification. Rather, it is the consequence of a muddled legislative process marked by incoherence and confusion.
This arbitrary and irrational discrimination between voters violates the Equal Protection Clause. In light of Ohio’s troubled history of election administration, the State made the decision to expand the period in which voters may cast their ballots in person. Having done so, the State may not arbitrarily exclude some voters, but not others, from the polling place on any day during the voting period. Bush v. Gore, 531 U.S. 98, 104-05 (2000).
In the absence of any legitimate basis on which to distinguish among voters who will be allowed into polling places on the days leading up to Election Day, and those that will be barred from those same polling places, both courts below concluded that respondents are likely to succeed on the merits of their equal protection challenge to Ohio’s two-deadline system and that the equities favor a preliminary injunction. There is no cause to disturb that determination.
1. The Court has long recognized that the right to vote is fundamental. See Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) (the right to vote is “preservative of all rights”). It “‘rank[s] among our most precious freedoms,’” Anderson, 460 U.S. at 787-88 (quoting Williams v. Rhodes, 393 U.S. 23, 30-31 (1968)), for “[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).
The Constitution safeguards not only the abstract right to vote, but also the
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integrity of the electoral process: “The right to vote is protected in more than the initial allocation of the franchise.” Bush v. Gore, 531 U.S. at 104. “Equal protection applies as well to the manner of its exercise.” Id. (emphasis added). Every “citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.” Dunn v. Blumstein, 405 U.S. 330, 336 (1972); see Harper v. Va. State Bd. of Elections, 383 U.S. 663, 665-70 (1966).
The governing principle behind this Court’s jurisprudence has long been that when the State provides access to the ballot on unequal terms, the discriminatory treatment must be justified as furthering a significant governmental policy. So central is access to the ballot that all government restrictions must demonstrate some rationale that a state is seeking to implement. Even where the challenged rule is an “‘evenhanded restriction’” aimed at “protect[ing] the integrity and reliability of the electoral process itself,” Crawford, 553 U.S. at 189-90 (plurality opinion of Stevens, J., joined by Roberts, C.J., and Kennedy, J.) (quoting Anderson, 460 U.S. at 788, n.9), where that neutral rule burdens voters differently, courts assess the “‘precise interests put forward by the State as justifications for the burden imposed by its rule.’” Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789). However slight the burden on voters, “it must be justified by relevant and legitimate state interests ‘sufficiently weighty to justify the limitation.’” Crawford, 553 U.S. at 191 (plurality op.) (quoting Norman v. Reed, 502 U.S. 279, 288-89 (1992)).
Where, as here, the challenged restriction is not evenhanded, that disparate
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treatment itself requires justification. See, e.g., Harper, 383 U.S. at 667-70.8 Put differently, the decision of the State to turn away some voters and not others from an open polling place itself imposes a burden on the exercise of the franchise. See Bush v. Gore, 531 U.S. at 104 (emphasizing the “equal weight accorded to each vote and the equal dignity owed to each voter”). “Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Bush v. Gore, 531 U.S. at 104-05 (emphasis added). Accordingly, the restriction presently before the Court cannot be sustained absent a relevant, legitimate justification. See Crawford, 553 U.S. at 18990; Burdick, 504 U.S. at 434.
The justification required from the State depends on the extent of the burden it imposes on voters. Over a series of cases, this Court has articulated the “flexible” standard, under which
[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 plaintiffs’ rights.” Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789); see also Crawford, 553 U.S. at 189-90; id. at 204 (Scalia, J., concurring). Further, the State cannot meet this burden merely by articulating some made-up, post-enactment justification developed by its lawyers in the course of
8 See also Crawford, 553 U.S. at 205 (Scalia, J., concurring in judgment) (distinguishing between “nonsevere, nondiscriminatory” restrictions on voting, to which lesser review applies, and those requiring more stringent scrutiny).
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litigation.9 Indeed, this Court has never upheld a restriction on the right to vote or a law providing differential access to the ballot on the basis of post hoc rationalizations alone. The reason for this is apparent: in regulating elections, the State “is not a wholly independent or neutral arbiter … [but] is itself controlled by the political party or parties in power, which presumably have an incentive to shape the rules of the electoral game to their own benefit.” Clingman v. Beaver, 544 U.S. 581, 603 (2005) (O’Connor, J., concurring). For this reason, while the State has considerable discretion in designing its elections, where it allocates access to the ballot on unequal terms, there is “cause for concern that those in power may be using electoral rules to erect barriers to electoral competition.” Id. In those cases, judicial scrutiny ensures that restrictions on the vote “are truly justified and that the State’s asserted interests are not merely a pretext for exclusionary or anticompetitive restrictions.” Id. Yet what applicants claim in this case is wide, and entirely novel, latitude under the Constitution to identify specified groups of citizens who will be offered selective access to polling places not open to others.
2. a. The Sixth Circuit, following the district court, found as a matter of fact that the Ohio scheme “treat[s] voters differently in a way that burdens the fundamental right to vote.” App. 9a. Accordingly, the court of appeals applied the Anderson-Burdick standard described above, and correctly determined that the State’s justifications for its in-person early voting scheme did not satisfy the State’s
9 The only pre-enactment justifications that applicants identify go to whether in-person early voting should end for all voters on the Friday before Election Day. App. 11-12. Applicants cite nothing pre-enactment that would justify the disparate treatment inherent in its in-person early voting procedures.
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burden, App. 12a-18a. b. Applicants do not even attempt to contend that they could satisfy their
burden under the Anderson-Burdick standard.10 Instead, they argue, the case is controlled by the lesser standard articulated in McDonald v. Board of Election Commissioners, 394 U.S. 802 (1969). Not so.
In McDonald, the Court considered whether Illinois was required to provide absentee ballots by mail to unsentenced inmates who were incarcerated awaiting trial. The Court found that there was “nothing in the record to indicate that the Illinois statutory scheme has an impact on [the inmates’] ability to exercise the fundamental right to vote.” Id. at 807. It found nothing in the absentee statutes, which were “designed to make voting more available,” that denied voting rights to the inmates. Id. And the Court found that Illinois was permitted to address access to the polls on a piecemeal basis, solving one problem at a time. Id. at 809. Accordingly, with no fundamental right affected and no suspect class singled out, the Court held that Illinois’ system of absentee ballots was subject only to rationalbasis review, which it satisfied. Id.
Applicants mistakenly contend that McDonald, and not Anderson-Burdick, applies here on the ground that “McDonald establishes as a matter of law that Ohio’s modest reduction of up to three days of in-person absentee voting imposes the lowest possible burden on respondents’ ability to cast a ballot.” Appl. 24
10 Nor could they. The courts below correctly found that neither post hoc rationalization developed by applicants in the course of the litigation is sufficient to justify the limitation on in-person early voting imposed by Ohio. See App. 18a.
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(emphasis added). Setting aside the fundamental differences that applicants deny between absentee voting and in-person voting at open polling places, applicants entirely misconstrue the doctrinal import of McDonald. Their position appears to be that the McDonald standard applies unless respondents demonstrate that “the record shows that the law absolutely prohibits non-UOCAVA voters from voting.” E.g., Appl. 26. That cannot be correct. To begin, the regulation challenged in Anderson itself fell far short of imposing an “absolute prohibition” on voters’ rights, yet the Court applied a more rigorous review than in McDonald and held the law to be unconstitutional. See 460 U.S. at 782, 786. And the plurality opinion in Crawford applied Anderson-Burdick to a voter ID law that did not “absolutely prohibit” anyone from voting, but nevertheless erected a burden on voters. Crawford, 553 U.S. at 189-91, 197-200 (plurality op.). To be sure, under the Anderson-Burdick standard, the extent to which a challenged regulation burdens constitutional rights affects the degree of scrutiny courts apply, and the gravity of the countervailing state interests necessary to justify the regulation. But the law contains nothing like the absolute-prohibition rule that applicants appear to advocate.
Rather, as this Court has explained, “the Court’s disposition of the claims in McDonald rested on failure of proof” concerning the burden on voters. O’Brien v. Skinner, 414 U.S. 524, 529 (1974) (emphasis added); cf. Crawford, 553 U.S. 181, 199 (2008) (plurality op.) (examining “evidence in the record and facts of which we may take judicial notice” to assess extent of burden on voters). The question whether a
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sufficient burden on voting exists for Anderson-Burdick to apply is thus highly factbound. Applicants’ contention that McDonald applies here as a matter of law is therefore incorrect.
c. Ample proof of a burden on voters exists here, as the lower courts twice found. The courts below applied the Anderson-Burdick standard, rather than the McDonald rational basis review, only after finding as a matter of fact that the burden on voters from the Ohio system was “significant.” App. 51a; see also App. 11a. The court of appeals explained that respondents “introduced extensive evidence that a significant number of Ohio voters will in fact be precluded from voting without the additional three days of in-person early voting.” App. 11a (citing district court record). It further noted that the “district court credited statistical studies that estimated approximately 100,000 Ohio voters would choose to vote during the three-day period before Election Day, and that these voters are disproportionately ‘women, older, and of lower income and education attainment.’” Id. (quoting district court opinion). For these reasons, the court of appeals cited the district court’s conclusion that “‘thousands of voters who would have voted during those three days will not be able to exercise their right to cast a vote in person.’” App. 12a (quoting district court opinion). Finally, the court of appeals emphasized that the “State did not dispute the evidence presented by [respondents], nor did they offer any evidence to contradict the district court’s findings of fact.” Id. These extensive factual findings set the instant case apart from McDonald, because they establish that the Ohio scheme “has an impact on [Ohioans’] ability to exercise the
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fundamental right to vote.” McDonald, 394 U.S. at 807. As a result, McDonald’s rational basis test is inapplicable, and Anderson-Burdick controls.
Applicants’ challenge to the decision below, distilled to its essence, is thus fundamentally a dispute over facts.11 Appl. 28-32. As explained above, applicants dispute the district court’s finding (affirmed by the Sixth Circuit) that “Ohio voters will in fact be precluded from voting without the additional three days of in-person early voting.” Appl. 28 (quoting App. 11a). They describe at length the relative merits and demerits of reports and studies submitted to the district court. Appl. 2931. But the district court and the court of appeals reviewed all the evidence and arguments presented to them, and found, contrary to applicants’ position, that the Ohio system would burden voters.
As explained earlier, that these facts were found and accepted by both courts below is particularly significant because of this Court’s “settled practice of accepting, absent the most exceptional circumstances, factual determinations in which the district court and the court of appeals have concurred.” Branti, 445 U.S. at 512 n.6. This is not the time—and, more important, this is not the venue—in which to relitigate the factual disputes raised here by applicants.
In sum, there is no merit to applicants’ challenge to the decision below. The district court and court of appeals, relying on factual findings made at the
11 Applicants contend (Appl. 31 n.8) that the district court’s finding that voters would be burdened does not rise to the level of a “finding of fact” under Federal Rule 52(a). Unsurprisingly, applicants cite no support for that proposition. What is more, they failed to raise this issue before the Sixth Circuit—the very court charged with reviewing the district court’s findings, see App. 6a—and thus the issue is waived and not properly before this Court.
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preliminary injunction stage, found that the Ohio voting system would burden voters, and that the Anderson-Burdick standard applied. Applicants provide no basis to conclude that the court of appeals decided this mixed question of law and fact incorrectly, and their tardy attack on the lower courts’ factual findings is unavailing. Nor do applicants make any effort to argue that the courts below erred in holding that they have provided no adequate justification for the Ohio system’s burden on voters under the Anderson-Burdick standard. Finally, for the reasons explained below, the district court did not abuse its discretion in the weighing of the equitable factors: applicants will suffer no significant harm from the injunction, while voters and the public at large will be severely harmed if the injunction is lifted. For these reasons, it is unlikely that this Court will reverse the decision below.
C. Applicants Will Suffer No Irreparable Harm, And The Balance Of Equities In Any Event Strongly Disfavors A Stay
An application for a stay should be denied if the applicants cannot “show . . . a likelihood that irreparable harm will result from the denial of a stay.” Hollingsworth, 130 S. Ct. at 710; see also Wise v. Lipscomb, 434 U.S. 1329, 1333 (1977) (Powell, J., in chambers) (“[T]he party seeking a stay bears the burden of advancing persuasive reasons why failure to grant [a stay] could lead to irreparable harm.”). Applicants advance two arguments for why the State would suffer irreparable harm, but the first is contrary to the record evidence and factual findings of both lower courts, and the second is at odds with this Court’s own precedents. Moreover, because the record establishes that an emergency stay would
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harm the voters of Ohio—including voters in Ohio’s most populous counties and voters who are disproportionately older and of lower income and education attainment—the balance of the equities weighs heavily against a stay.
1. Applicants’ primary argument for establishing irreparable injury is a factual one based on a supposed increase in administrative burdens. That contention is flatly at odds with the findings below.
Applicants assert that the district court’s injunction will leave the State with “inadequate time and resources to prepare for Election Day,” which might force a “reallocation of limited state resources” that could “hamper Election Day voting.” Appl. 38. This is an extraordinary assertion, given that the relief below simply keeps in place the system under which the 2008 and 2010 elections were administered, and an election system on which the largest and most hard pressed counties (which have supported respondents in this litigation) have come to rely. This question was squarely before the district court and the Sixth Circuit, and both courts found that any additional administrative burden was scant and did not establish irreparable injury. After all, the relief below does not compel that there be particular voting hours or a redirection of resources. Indeed, the preliminary injunction does not interfere with the discretion of local election boards in determining the days and hours of their polling places within three days of Election Day. It simply commands that polling places open during that time period be open to all eligible voters, just as they did in 2008 and 2010.
In granting the preliminary injunction, the district court found that “there is
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no definitive evidence before the Court that elections boards will be tremendously burdened.” App. 57a. It reached this conclusion only after carefully reviewing the evidence introduced by applicants, and noting that applicants offered “little in support of [its] claim that Ohio election boards cannot simultaneously accommodate in-person early voting and pre-Election Day preparations during the three days prior to Election,” id. at 52a, as they have done in recent elections. Indeed, the district court recognized that it was the position of Ohio’s most populous county that its Election Board was sufficiently equipped from a “work and budget” perspective “to provide equal in-person voting for all voters.” Id. at 53a (emphasis in original).
The Sixth Circuit agreed, holding that applicants have “shown no evidence indicating how this election will be more onerous than the numerous other elections that have been successfully administered in Ohio since early voting was put into place in 2006.” App. 13a-14a. The court of appeals further found that during the intervening period, “the Ohio boards of elections have effectively conducted a presidential election and a gubernatorial election, not to mention many other statewide and local elections, all while simultaneously handling in-person early voting during the three days prior to the election.” App. 14a (emphasis added). And it noted that the applicants “introduced no specific evidence to refute” evidence offered by several Ohio counties that contradicted the State’s assertions concerning administrative burden. Id.
At bottom, applicants’ contention that they will suffer irreparable injury is an intensely idiosyncratic dispute concerning factual findings that were made not once,
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but twice in the lower courts. Applicants ignore those findings, and seek to relitigate this factual issue by pointing the Court to the same declaration of a State elections official that was twice scrutinized and twice found insufficient below. See Appl. 15-16, 38; see also App. 57a-58a; App. 13a-14a.
Indeed, as the Sixth Circuit properly recognized, the preliminary injunction merely “restores the status quo ante,” by preserving the same regime that existed during the 2008 election and up until the flurry of legislative and administrative changes that began in July 2011. App. 20a. Applicants contend that it would work an “irreparable injury” to restore that status quo, but that position is untenable. As a factual matter, applicants’ position would require this Court not only to upend the factual findings of two lower courts, but also to arrive at its own finding, without any basis in the record, that administering early voting on the final three days preceding Election Day will somehow “be more onerous than the numerous elections that have been successfully administered in Ohio since early voting was put into place in 2005.” App. 13a-14a.
Nor can applicants succeed in establishing “irreparable harm” merely on the basis that the State has been “enjoined by a court from effectuating [a] statute[].” App. 37a (internal citation omitted). That language derives from two in-chambers opinions: New Motor Vehicle Bd. of California v. Orrin W. Fox Co., 434 U.S. 1345 (1977) (Rehnquist, J., in chambers), and Maryland v. King, -- S.Ct. --, 2012 WL 3064878 (July 30, 2012) (Roberts, C.J., in chambers). Yet in neither of those opinions did the fact of an injunction against a statute in and of itself suffice to
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satisfy the irreparable harm standard. In New Motor Vehicle Board, then-Justice Rehnquist described other irreparable harms to the State of enjoining the statute in question before stating that “[i]t also seems to me that any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” Id. at 1351 (emphasis added). Likewise, in King, the Chief Justice identified “an ongoing and concrete harm to Maryland’s law enforcement and public safety interests” from an injunction preventing Maryland from obtaining DNA samples from “individuals charged but not yet convicted of certain crimes.” 2012 WL 3064878 at *1-*2.12 These independent harms to the State, wholly aside from any sovereignty interest, satisfied the irreparable harm requirement and weighed in favor of a stay in those cases. Here, however, the courts below found that there would be no such harm to the State.
Applicants’ argument that the irreparable harm standard is satisfied any time a state statute is enjoined proves far too much: on applicants’ apparent view, the equitable factors would warrant a stay whenever an injunction of a state statute is involved. There is no support for that proposition. In fact, it conflicts with this
12 In addition, unlike in the present case, there was a clear basis for the Court to grant certiorari in both of the in-chambers opinions upon which applicants rely for this argument. See New Motor Vehicle, 434 U.S. at 1347 (“Because the case presumably will be coming to us by appeal and will therefore be within our obligatory jurisdiction, I feel reasonably certain that four Members of the Court will vote to note probable jurisdiction and hear the case on the merits.”); Maryland v. King, -- S.Ct. --, 2012 WL 3064878 at *1 (“To begin, there is a reasonable probability this Court will grant certiorari. Maryland’s decision conflicts with decisions of the U.S. Courts of Appeals for the Third and Ninth Circuits as well as the Virginia Supreme Court, which have upheld statutes similar to Maryland's DNA Collection Act.”).
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Court’s historic treatment of stay applications of this sort, which routinely weigh the actual, tangible harms to the State, and do not add extra weight based on the fact that a state statute was enjoined below. See, e.g., Certain Named and Unnamed Non-Citizen Children and Their Parents v. Texas, 448 U.S. 1327 (1980) (Powell, J., in chambers) (lifting Fifth Circuit stay and thereby reinstating district court’s injunction barring, on equal protection grounds, enforcement of state statute that denied free public education to “‘undocumented’ alien children” without considering impact on sovereign interests in balancing the equities involved); Blum v. Caldwell, 446 U.S. 1311, 1316 (1980) (Marshall, J., in chambers) (denying stay to Commissioner of the New York Department of Social Services after weighing the expense to be incurred by the state absent a stay against the harm to respondents if a stay is granted); cf. Ruckelshaus v. Monsanto Co., 463 U.S. 1315, 1315 (1983) (Blackmun, J., in chambers) (denying application from Administrator of Environmental Protection Agency to stay injunction barring enforcement of provisions of the Federal Insecticide, Fungicide, and Rodenticide Act, and finding that no irreparable harm will result). Here, where both lower courts found that applicants would not suffer tangible harm from the district court’s injunction, the stay application should be denied.
2. Furthermore, in deciding whether to grant a stay, it is “necessary” to “balance the equities” by “explor[ing] the relative harms to applicant and respondent, as well as the interests of the public at large.’” Barnes, 501 U.S. at 1305 (internal quotation marks omitted). Even if applicants could establish
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irreparable harm, the equities here would nevertheless weigh heavily against a stay.
First, the district court’s injunction has no effect on the pre-existing rights of military voters and their families to vote in-person in the three days prior to Election Day. The district court’s preliminary injunction order actually re-affirms those rights, by restoring in-person early voting “on the three days immediately preceding Election Day for all eligible Ohio voters,” including military voters. App. 58a (emphasis added). Nor does the district court’s order or the Sixth Circuit’s opinion imperil any of the constitutionally legitimate accommodations and protections for military voters discussed at length in the application. See Appl. 911. Because the voting rights and protections afforded to military voters are left untouched by the injunction, their interests cannot weigh in favor of a stay.
Second, an emergency stay would cause considerable harm to the public at large, by restricting the franchise of a substantial number of Ohio voters and creating uncertainty and confusion amongst voters on the eve of the election. Courts have consistently held that an abridgement or dilution of the right to vote constitutes irreparable harm.13 Here, as the lower courts properly found, the
13 See, e.g., Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 882, 907 (9th Cir. 2003) (“Abridgement or dilution of a right so fundamental as the right to vote constitutes irreparable injury”) (citation and internal quotation marks omitted); Williams v. Salerno, 792 F.2d 323, 326 (2d Cir. 1986) (the denial of the fundamental right to vote is unquestionably “irreparable harm”); Miller v. Blackwell, 348 F. Supp. 2d 916, 922 (S.D. Ohio 2004) (“Because this Court has found that the Defendants’ challenged actions threaten to impair both Plaintiffs’ constitutional right to due process and constitutional right to vote, the Court must
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provision of early voting expands access to the franchise, and the elimination in these circumstances of early voting for the vast majority of Ohio voters necessarily burdens their right to vote. See App. 11a; App. 50a-51a. The ineluctable result of a stay would be to decrease the number of days on which some Ohioans may vote in person, to deny most Ohio voters any opportunity to vote in-person on any weekend days, and to substantially increase the burdens on voters and election officials on Election Day. R.40-1 (Directive 2012-35). This burden would fall in part on “approximately 100,000 Ohio voters” who otherwise “would choose to vote during the three-day period before Election Day,” voters who “are disproportionately ‘women, older, and of lower income and education attainment.’” App. 11a (quoting district court order).
What is more, granting an emergency stay at this late hour would inject uncertainty and confusion into the rapidly approaching election. “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, 4-5 (2006); see also Summit County Democratic Central & Executive Comm. v. Blackwell, 388 F.3d 547, 551 (6th Cir. 2004) (“[T]here is a strong public interest in smooth and effective administration of the voting laws that militates against changing the rules in the hours immediately preceding the election.”). Since August 31, it has been clear to the voters of Ohio that, at the discretion of the local boards and consistent with the system in effect since 2005,
find that Plaintiffs will suffer an irreparable injury if the temporary restraining order does not issue.”).
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they would be permitted to vote in-person at open polling places on the Saturday, Sunday, and Monday before Election Day. See App. 52a. Granting a stay with just weeks to go before Election Day would upend this return to the 2008 status quo, and risk confusing Ohio voters about their voting options and dissuading them from coming to the polls at all. Purcell, 549 U.S. at 4-5. Such confusion and uncertainty would plainly prejudice respondents, whose members, supporters, and constituents include millions of Ohio voters. The denial of the application, by contrast, would preserving the status quo ante and provide voters with a permanent and predictable schedule of early in-person voting hours.
Third, notwithstanding applicants’ position, the record establishes that a stay would do harm to Ohio counties, several of which have vocally asserted their strong interest in preserving early voting for the final three days preceding the election. Ohio’s most populous county filed an amicus curiae brief in the district court explaining that early voting on the Saturday, Sunday, and Monday before Election Day defrays costs to the County by absorbing a volume of voting that would occur on Election Day and that would strain Election Day machinery and systems. R.38 (Cuyahoga County Brief). The County noted that the cancellation of early voting during the final three days preceding the election raised the “risk of voting problems on Election Day” that would “interfere[] with th[e] fundamental right” to vote. R.38 (Cuyahoga County Brief) at 4.14 Other counties issued public statements
14 See also R.38 (Cuyahoga County Brief) at 1 (“If anything, denying Ohio voters the right to vote during the three days before the election may end up costing counties additional funds to invest in fixing the problems caused by this
39

supporting the restoration of in-person early voting in the last three days prior to the election for all voters. See, e.g., R.57-1, (Mahoning County Press Release); R.572 (Franklin County letter).
Taken together, and weighed against the negligible evidence of administrative burden advanced by applicants, the harm to respondents and the public that would result from an emergency stay far outweighs any injury asserted by the State. See Lucas, 486 U.S. at 1304. The equities strongly counsel against a stay. III. SUMMARY REVERSAL IS UNWARRANTED
Finally, summary reversal is unwarranted here. To begin, because the decision below is correct on the merits, no reversal is appropriate—summary or otherwise. Moreover, applicants’ contention that the decision below is so clearly wrong as to warrant summary adjudication is belied by the complexity of the argument presented in the application itself. Applicants submit that “full briefing and argument would be a waste of time” and would “not aid the Court in resolution of the case” if it were inclined to grant certiorari. Appl. 39 (quoting Supreme Court Practice 344). Yet the application shows that the applicants’ arguments for reversal—which have already been rejected by four Article III judges—turn on the knotty history of Ohio’s disparate voting regime, the nuances of the burdens it creates, and the particular interests asserted by the State. See Appl. 22 (arguing that O.R.C. § 3509.03 should “be upheld given the de minimis burden it imposes
deprivation, including potentially having to purchase additional voting machines and spend continuing resources on having to maintain the machines.”).
40

and the State’s important regulatory interests”); see also id. at 24-28 (describing burden and interests). This is simply not a situation where the decision below “is so clearly erroneous” (Appl. 39) and the purported basis for reversal so straightforward that the Court may summarily reverse it without the benefits of oral argument, merits briefing, or even a petition for certiorari.15
CONCLUSION The application for a stay should be denied. To the extent the application is treated as a petition for a writ of certiorari, certiorari should be denied.
15 Purcell v. Gonzalez, 549 U.S. 1 (2006), is entirely distinguishable on this point. The operative consideration in that case was that the Ninth Circuit, in enjoining a state voting statute, gave no “deference to the discretion of the District Court,” and “fail[ed] to provide any factual findings or indeed any reasoning of its own.” Id. at 5. Here, the Sixth Circuit affirmed the decision and factual findings of the district court after a lengthy review of those findings, and issued a thoughtful, 20-page opinion explaining its reasoning.
41

Respectfully submitted,

Donald J. McTigue Mark A. McGinnis J. Corey Colombo McTigue & McGinnis LLC 545 East Town Street Columbus, Ohio 43215 Tele: (614) 263-7000 Fax: (614) 263-7078
Attorneys for Respondents

Robert F. Bauer Perkins Coie 700 Thirteenth Street, Suite 600 Washington, DC 20005 Tele: (202) 434-1602 Fax: (202) 654-9104
General Counsel for Respondents Obama for America and the Democratic National Committee

Jennifer Katzman Obama for America 130 East Randolph Chicago, IL 60601 Tele: (312) 985-1645

National Voter Protection Counsel for Respondent Obama for America

42

 
 No. 12A338
In The Supreme Court of the United States
Jon Husted, Ohio Secretary of State; and Mike DeWine, Ohio Attorney General, Applicants
v. Obama for America; Democratic National Committee; and
Ohio Democratic Party, Respondents
On Petition for Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit
REPLY IN SUPPORT OF EMERGENCY APPLICATION FOR STAY PENDING CERTIORARI
To the Honorable Elena Kagan Associate Justice of the Supreme Court of the United States and
Circuit Justice for the Sixth Circuit

William S. Consovoy* Thomas R. McCarthy Brendan J. Morrissey J. Michael Connolly Wiley Rein LLP 1776 K Street NW Washington, D.C. 20006 Tel: (202) 719-7000 wconsovoy@wileyrein.com
Special Counsel for Applicant Ohio Secretary of State Jon Husted
*Counsel of Record

MICHAEL DEWINE Ohio Attorney General
Stephen P. Carney Richard N. Coglianese Michael J. Hendershot Assistant Attorneys General 30 East Broad Street, 16th Floor Columbus, OH 43215 Tel: (614) 466-2872
Counsel for Applicant Ohio Attorney General Michael DeWine
Date: October 13, 2012

TO THE HONORABLE ELENA KAGAN, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES AND CIRCUIT JUSTICE FOR THE SIXTH CIRCUIT:
Applicants Secretary of State Jon Husted and Attorney General Michael DeWine (“Applicants”) respectfully submit this Reply in support of their application for a stay pending the timely filing of a petition for writ of certiorari and their request that the Court treat the application as a petition for writ of certiorari, grant the petition, and summarily reverse the decision below (“Stay App.”).
1. Respondents Obama for America, Democratic National Committee, and Ohio Democratic Party (“Respondents”) argue that this Court should deny the Application based on a failure to seek a stay pending certiorari from the Sixth Circuit. Opposition to Emergency Motion for Stay Pending Certiorari (“Opp.”) 1719. But as previously explained, see Stay App. 21 n.5, this case presents the type of “extraordinary circumstances” that excuse this requirement, S. Ct. R. 23.3. The November election is rapidly approaching, and the three-day period at issue begins in 21 days. Opening the thousands of precincts across the State is not a simple task; it requires preparation and planning by elections officials. Given the State’s urgent need to resolve this issue as quickly as possible, see also infra 13-15, it was simply not feasible under these circumstances for Applicants to seek a stay from the Sixth Circuit, brief the issue, wait for a decision, and then later file an application with this Court.
In short, seeking a stay pending certiorari from the Sixth Circuit would have meant forgoing this Court’s review. Respondents claim that Applicants had “ample time” to seek a stay from the Sixth Circuit. Opp. 18. But Respondents do not even
1

believe their own argument, as they separately argue that granting a stay “at this late hour would inject uncertainty and confusion into the rapidly approaching election” and confuse voters “with just weeks to go.” Opp. 38-39. It is disingenuous for Respondents to simultaneously argue that there was sufficient time to further delay seeking this Court’s review but somehow there is insufficient time for the Court to grant relief from the decision below.
The exception to Rule 23.3 was designed for cases such as this. Indeed, this Court has granted an application for stay in almost identical circumstances. In Brunner v. Ohio Republican Party, 555 U.S. 5 (2008), the district court entered a temporary restraining order directing the Ohio Secretary of State to update the voter registration database to comply with federal law, and the Sixth Circuit, on October 14, 2008, denied the Secretary’s motion to vacate the order. Instead of first seeking a stay pending certiorari from the Sixth Circuit, the Secretary immediately sought one from Justice Stevens. The Court granted the stay without suggesting that it was procedurally out of order. See id; compare with Conforte v. CIR, 459 U.S. 1309, 1312 n.2 (1983) (alternatively dismissing application because the applicant waited 56 days to seek a stay and never argued there were extraordinary circumstances). The propriety of this application follows directly from Brunner.
In any event, Applicants have asked this Court to treat the application as a petition for certiorari, grant the petition, and summarily reverse the court of appeals. Compliance with Rule 23.3 has no effect on whether this Court can grant such relief. See, e.g., Purcell v. Gonzalez, 549 U.S. 1, 2-4 (2006) (construing stay
2

applications as petitions for certiorari, granting the petitions, and vacating the decision below even though no stay pending certiorari was filed in the Ninth Circuit). The Court can follow that same approach here.
2. Respondents also wrongly argue that this application is insufficiently important to warrant review. Opp. 20-22. A decision striking down a state law as facially unconstitutional on the eve of an election is the definition of an important case. See Stay App. 37-38; infra 13-14. Moreover, fifteen States and thirteen military associations have registered their disagreement with Respondents’ contention. See Amicus Br. of the States of Michigan, et. al., No. 12A338 (filed Oct. 10, 2012) (“Multi-State Br.”); Military Groups Applicants’ Joinder in Emergency Application for Stay and Summary Reversal (“Military Br.”). The Sixth Circuit’s decision “impinges on state sovereignty in three important ways”: by deterring states from expanding access to alternative means of voting; by judicially secondguessing a state’s important interest in preparing for Election Day; and by “disregard[ing] the special status of military voters.” Multi-State Br. 1-2. Thus, the States “have an intense interest in the Sixth Circuit’s injunction of Ohio election law and the court’s rejection of state sovereignty in the area of election processes” and believe that “the questions presented raise issues of national jurisprudential significance.” Id. 3.
The decision’s detrimental impact on military voters and their families makes the Application especially important. “The Sixth Circuit’s ruling will severely hamper States’ efforts to make voting easier and more accessible for members of the
3

Armed Forces . . . . In particular, the ruling would require the invalidation of substantial parts of the Uniform Military and Overseas Voters Act (‘UMOVA’), which was promulgated in 2010 and already has been adopted by 10 jurisdictions.” Military Br. 2. More generally, the ripple effect from the injunction could “lead to reduced voting opportunities for military voters” because “if state and local governments cannot offer special flexibility or consideration for in-person voting to military voters without also extending it to the public at large” they “soon will stop offering military voters such assistance.” Id. 3. This case illustrates the concern. Under the injunctive remedy endorsed by Respondent and the Sixth Circuit, it is possible that each county could decide for itself whether to remain open for all voters or no voters. Opp. 13; App. 21. But many counties—particularly smaller, rural counties with minimal resources—that would otherwise “welcome military voters during the Three-Day Period reasonably can be expected to end in-person absentee voting over the weekend before Election Day, rather than opening it up to the general public.” Military Br. 24. A judicial decision risking this much harm to military voters is important.
Respondents attempt to diminish the importance of this application by suggesting that the issues involved here are unique to Ohio. Opp. 19-20. But the decision below did not turn on the uniqueness of Ohio law. Seeking to leverage Ohio’s accommodation of military voters (which resembles many other state and federal laws providing special voting accommodations to the military), the decision turned on the panel’s errant conclusion that certain voters would be disenfranchised
4

by the modest reduction of alternative voting means that Ohio was under no constitutional obligation to offer in the first place. “[T]he point underlying the court’s decision is voter reliance. The claim is that voters have come to rely on the new and expanded opportunity to vote, and once Ohio granted this accommodation, Ohio could not withdraw it without a more probing scrutiny as provided in Anderson/Burdick.” Multi-State Br. 11 (citations omitted).
This is a significant problem for almost every state in the Union. While voting systems differ, “more than 30 states . . . allow for early voting” and “at least seven . . . took precisely the same action as Ohio did here: to end early voting on the Friday before the election.” Multi-State Br. 8. These states arguably “will only be able to reduce the number of days where there is a determination by a federal court that the state had a significant justification.” Id. 9. In other words, “any state legislature that increases access to voting diminishes its sovereignty over the election process.” Id. 11. In addition, “[f]ifteen states currently require voters to provide an excuse to cast a vote before Election Day, rather than opening up absentee voting to the general public at large.” Id. 9 n.3. These states—including two within the Sixth Circuit—are potentially subject to constitutional challenge for offering “early voting to some citizens while denying it to others.” Opp. 21. If this decision stands, Ohio will be subject to more eleventh-hour litigation any time plaintiffs can allege that their preferred means of voting has been altered or some other class of voters has been provided an accommodation through a voting change. And copycat challenges are certain to proliferate in other states in the coming
5

weeks and in future elections. Prompt resolution of this nationally important election-law issue is appropriate.
3. Respondents’ arguments on the merits are equally unavailing. Resisting the obvious pertinence of McDonald v. Bd of Election Com’rs, 394 U.S. 802 (1969), Respondents ask the Court to ignore it altogether because Anderson-Burdick applies instead. But the cases are not in competition and, in any event, McDonald remains good law. Even if Anderson-Burdick applies to all Fourteenth Amendment ballot-access challenges, Stay App. 22, McDonald must have a place within that framework. Indeed, Respondents agree that under Anderson-Burdick “[t]he justification required from the State depends on the extent of the burden it imposes on voters.” Opp. 25; id. 28 (“[U]nder the Anderson-Burdick standard, the extent to which a challenged regulation burdens constitutional rights affects the degree of scrutiny courts apply, and the gravity of the countervailing state interests necessary to justify the regulation.”).
As previously explained, see Stay App. 24-27, a limitation on absentee voting calls for the minimum scrutiny possible under the balancing inquiry because such a law does not infringe the fundamental right to vote unless excluded voters “are in fact absolutely prohibited from voting,” McDonald, 394 U.S. at 808 n.7. As Respondents begrudgingly acknowledge, then, this case is distinguishable only if “the Ohio scheme ‘has an impact on [Ohioans’] ability to exercise the fundamental right to vote.’” Opp. 30 (quoting McDonald, 394 U.S. at 807). Respondents are thus incorrect in arguing that Applicants’ reliance on McDonald is an implicit concession
6

“that they could satisfy their burden under the Anderson-Burdick standard.” Id. 27. Quite the opposite, Applicants prevail under the Anderson-Burdick balancing inquiry precisely because this case parallels McDonald.1
Notably, Respondents barely defend the Sixth Circuit’s conclusion that the modest reduction of in-person absentee voting disenfranchises thousands of voters since Ohio continues to offer non-military voters 230 hours of in-person absentee voting, 750 hours of absentee voting, and 13 hours of voting on Election Day. App. 11a-12a. Respondents do not even attempt to argue that voters who might prefer to vote during these three days—or previously did so—would be unable to vote at some other time. Nor could they. “What about the 23 days of in-person, pre-election voting? What about mailing in an absentee ballot? And, for at least some substantial portion of those 100,000 voters, what about Election Day?” Multi-State Br. 10. Respondents also do not point to even one statement in any of the studies and reports lodged in the district court supporting the Sixth Circuit’s characterization of them or try to address Judge White’s criticism of the majority opinion on this score. In short, Respondents’ failure to defend the central premise of the Sixth Circuit’s decision speaks volumes.

1

Respondents attempt to distinguish McDonald by arguing that in-person absentee voting is

not absentee voting at all and is not even “early voting” but is instead “a way of extending the

availability of traditional Election Day voting.” Opp. 7. They are incorrect. Absentee ballots—

whether cast in-person or by mail—are verified and counted in a way different from traditional

ballots. Stay App. 8-9. And, early voting—whether absentee or otherwise—is not a part of Election

Day because there is only one Election Day, which is on “the Tuesday next after the first Monday in

November.” 2 U.S.C. § 7; 3 U.S.C. § 1; Foster v. Love, 522 U.S. 67, 72 n.4 (1997) (“We hold today only

that if an election does take place, it may not be consummated prior to federal election day.”).

Absentee and other forms of early voting comply with federal law precisely because they are not

considered Election Day. See, e.g., Voting Integrity Project, Inc. v. Keisling, 259 F.3d 1169 (9th Cir.

2001); Voting Integrity Project Inc. v. Bomer, 199 F.3d 773, 774 (5th Cir. 2000).

7

Instead, Respondents would like the Court to simply ignore the decision’s many flaws as judicial review would enmesh the Court in a factual dispute. Opp. 29-31. But this Court’s review of the decision to declare an important state law facially unconstitutional is not so easily circumvented. Under such circumstances, the Court has made clear that it will carefully scrutinize “the record that has been made in [the] litigation” so that it can determine whether the law actually “imposes excessively burdensome requirements on any class of voters.” Crawford v. Marion Cnty Election Bd., 553 U.S. 181, 202 (2008) (Stevens, J.). “Supposition based on extensive Internet research is not an adequate substitute for admissible evidence subject to cross-examination in constitutional adjudication.” Id. at 203 n.20.
This case shows why that approach is necessary. Respondents claim that the district court made extensive factual findings and that the Sixth Circuit carefully reviewed the record. Opp. 29-30. But Respondents ask this Court to accept that on faith because the Respondents did not call any live witnesses or introduce testimony from anyone. They lodged a few random reports and studies in the district court, none of which addressed the issue on which the preliminary injunction hinges. App. 25a (White, J.). Furthermore, the district court did not hold an evidentiary “hearing,” Resp. 11, it held an oral argument. It made no formal findings of fact—it made one naked assertion about disenfranchisement without any citation to the record. The Sixth Circuit then cast that unsupported assertion as a factual finding derived from record evidence, which is not even remotely the case. And now, Respondents ask this Court to let a decision striking down a state law as
8

unconstitutional rest on their quotation of the Sixth Circuit’s statement quoting the district court’s statement citing to nothing that “thousands of voters who would have voted during those three days will not be able to exercise their right to cast a vote in person” as the sole distinguishing feature of this case. Opp. 29 (quoting App. 12a) (quoting district court opinion).
The problem, then, is not that Applicants are trying to relitigate factual issues that were weighed in the courts below. Opp. 30-31. The point here is that there were no facts in the record on the key issue for the district to weigh and no factual findings for the court of appeals to review for clear error. Rather, like the plaintiffs in Crawford, Respondents are asking the Court to accept judicial speculation as a substitute for factual evidence that a state law is facially unconstitutional. Far more is required.2
Finally, it is unclear whether Respondents also rely on Judge White’s theory that the loss of weekend and after-hours in-person absentee voting will lead to long lines on Election Day, which will lead to voters abandoning the polls, which she declared to be tantamount to disenfranchisement. App. 25a-26a; Opp. 5, 23. In any case, that theory is unsustainable. Stay App. 33. Even setting aside all of the other problems with Judge White’s theory (including the fact that there is no evidence supporting it in the record of this or any other case) and even assuming that she is

2

Only three documents from the record have been cited to support any assertion of

disenfranchisement, all of which were by the Sixth Circuit: a two-page paper purporting to calculate

the number of people voting in-person on the last three days in Ohio in 2008, R. 34-32 (cited at App.

11); a report of early in-person voting in Franklin County in 2008, R. 34-34 (cited at App. 26 (White,

J.)); and a report of early in-person voters in Cuyahoga County in 2008, R.34-35 (cited at App. 26

(White, J.)). None of these documents supports such an assertion. Thus, if the Court deems the

district court’s discussion of these issues to constitute a finding of fact, which it should not, that

finding should be overturned under any applicable standard of review.

9

correct that every one of these approximately 100,000 voters, see Opp. 8, would vote on Election Day (instead of voting absentee by mail or in-person on another day), it would add only 11 voters to each of Ohio’s approximately 9000 polling locations over the course of a 13-hour day. It is logically inconceivable—and factually unsupportable—that adding 11 people to a polling location over the course of Election Day will lead to any lines, let alone massive lines that Judge White suggested could cause a voter to abandon the polls.
4. Although they attempt to cloud the issue by adopting the Sixth Circuit’s confusing mix-and-match approach, Stay App. 29, Respondents’ opposition confirms that they have never really subscribed to the disenfranchisement theory. Respondents true complaint is that the favorable treatment afforded to military voters and their families subjected them to disparate treatment under the Equal Protection Clause. Id. 22. In other words, their contention is not that O.R.C. § 3905.03 violates the fundamental right to vote; their allegation is that it provides “differential access” to in-person absentee voting, “selective access to voting,” and “discrimination between voters,” under what they term “Ohio’s two deadline system” of absentee voting. Opp. 23-24. Respondents’ claim that Applicants could solve the constitutional problem by allowing the counties to vote to remain closed on all three days to all voters eliminates any doubt. Id. 32. Respondents’ claim of disenfranchisement cannot be taken seriously given that they propose to solve it not by expanding access to the ballot, but by a remedy that could limit the voting options of members of the military and their families. Stay App. 29.
10

But the fact that Respondents’ honest concern is disparate treatment does not make that claim meritorious under traditional equal protection analysis. Even the Sixth Circuit found that their disparate treatment claim could not prevail without a finding of disenfranchisement. App. 8a (“If a plaintiff alleges only that a state treated him or her differently than similarly situated voters, without a corresponding burden on the fundamental right to vote, a straightforward rational basis standard of review should be used.”). For good reason. As Respondents have conceded, Stay App. 16, myriad federal and state laws are predicated on the sensible understanding that military and non-military voters are not similarly situated, Military Br. 18-19; Multi-State Br. 13-14. And even if they were, O.R.C. § 3509.03 is subject to rational-basis review as it does not infringe a fundamental right or invidiously discriminate against a suspect class. McDonald, 394 U.S. at 803-04. The law easily survives traditional rational-basis review. Stay App. 27-28.
Respondents’ attempt to avoid this problem by analogizing to Bush v. Gore, 531 U.S. 98 (2000), and Dunn v. Blumstein, 405 U.S. 330 (1972), also fails. Opp. 24. Those cases triggered heightened scrutiny because they did involve disenfranchisement. In Bush, the varying vote counting standards had “led to unequal evaluation of ballots in various respects.” 531 U.S. at 106 (emphasis added). Likewise, the Tennessee residency standard in Dunn “completely bar[red] from voting all residents not meeting the fixed durational standards,” thus “denying some citizens the right to vote” for illegitimate reasons. 405 U.S. at 336. Both cases, then, fundamentally interfered with the right to vote either by failing to
11

count a lawfully cast ballot or by refusing to allow an eligible voter to cast one in the first place. Neither circumstance is present here. Stay App. 24-27.
5. As previously explained, because of the de minimis inconvenience imposed on non-military voters, id. 26-27, the State’s important regulatory interests are more than sufficient to sustain the legislation. Respondents nevertheless claim that Applicants do not “make any effort to argue that the courts below erred in holding that they have provided no adequate justification for Ohio’s system under the Anderson-Burdick standard.” Opp. 31. Not true. Not only was this issue briefed in the Application, Stay App. 27-28, 34-36, but it is Respondents that have perfunctorily addressed the issue—devoting one sentence to it in their merits section. In any event, the Ohio legislature obviously has a legitimate interest in preparing for Election Day and accommodating military voters and their families. Multi-State Br. 8-10, 12-17; Military Br. 23-24. Like the Sixth Circuit, Respondents attempt to collaterally attack the legitimacy of these interests based on the fact that a few county officials disagree with the legislature’s judgment in amicus briefs. Opp. Br. 11, 39. But, as Crawford illustrates, that is not the proper inquiry. 553 U.S. at 191. The issue is whether the Ohio legislature was pursuing legitimate regulatory interests. It clearly was. Stay App. 35.3
6. As anticipated, see id. 36-37, Respondents do not even attempt to argue that the preliminary injunction can be sustained in the absence of a finding that

3

Respondents argue that O.R.C. § 3509.03 was both an accidental “legislative oversight” yet

also a politically-motivated attempt “to identify specified groups of citizens who will be offered

selective access to polling places.” Opp. 10, 26. Neither is true. The legislature intentionally sought

to provide additional accommodations to military voters, see Stay App. 13, and was motivated by

bipartisan concerns from election officials, see id. 11-12.

12

they are likely to prevail on their constitutional claim, see Opp. 31. Accordingly, that is the only pertinent issue in determining whether Applicants have shown a “reasonable probability” that the Court will vote to hear the case and a “fair prospect” that it will reverse the decision below. For all the reasons set forth above, and those in the Application, the answer is “yes.” Indeed, because the decision is contrary to controlling precedent, summary reversal is the appropriate course. See id. 21.
7. As previously explained, Stay App. 37-39, the district court’s order irreparably injures Ohio’s sovereign interests by declaring appropriate state election law unconstitutional and enjoining its enforcement. Stay App. 37-38 (discussing New Motor Vehicle Bd. of California v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers); Maryland v. King, --- S. Ct. ---, 2012 WL 3064878, at *2 (July 30, 2012) (Roberts, C.J., in chambers)). Respondents incorrectly contend that neither case shows that the injunction “in and of itself” constitutes a form of irreparable injury to the State. Opp. 34. New Motor Vehicle Board makes clear that no additional harm is necessary: “Any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” 434 U.S. at 1351 (emphasis added). King likewise confirms that an injunction causes a distinct form of irreparable injury, as this federalism injury was the principal basis for the Court’s conclusion that the State had suffered an irreparable injury. 2012 WL 3064878, at *2
13

(explaining that the injunction of a Maryland statute “subjects Maryland to ongoing irreparable harm”).
It is for this very reason that the Court will not hesitate to stay lower court injunctions rewriting election rules, especially in the waning days before an election. See, e.g., Brunner, 555 U.S. at 5 (granting stay on October 17, 2008, eighteen days before Election Day); Purcell, 549 U.S. at 6 (vacating injunction on October 20, 2006, eighteen days before Election Day); Norman v. Reed, 502 U.S. 279, 287 (1992) (noting the stay granted on October 25, 1990, 12 days before Election Day). No further showing is necessary.
In addition, Applicants will likely suffer irreparable injury in the absence of a stay because they will be left with inadequate time and resources to prepare for Election Day. Stay App. 38-39. Respondents try to downplay the extent to which the preliminary injunction will interfere with Ohio’s administration of the 2012 elections, arguing that it “does not interfere with the discretion of local election boards in determining the days and hours of their polling places within three days of Election Day.” Opp. 32. But irreparable injury will occur regardless of the choice a county might make. If the county is open, it will need to spend critical time and resources conducting early voting during a time when it should be preparing for Election Day. Stay App. 38.4 And if a county is closed, military voters will lose an

4

Because of the limited number of UOCAVA voters, offering them in-person voting for three

days does not require a large investment of limited state resources; opening the polls on those days

to non-UOCAVA voters, however, will substantially increase the number of voters and thereby

require a much greater expenditure of time and resources polls. App. 104a-107a

14

accommodation that may otherwise have been afforded in the absence of the preliminary injunction. Military Br. 23-24; App. 104a-107a.
Respondents ultimately acknowledge, as they must, that States have a “strong . . . interest in smooth and effective administration of the voting laws” and that protection of military voters is likewise an important interest, but argue that “granting an emergency stay at this late hour would inject uncertainty and confusion into the rapidly approaching election.” Opp. 38. Yet it is Respondents that have upset the status quo through this litigation. There is little interest in insulating badly reasoned lower court opinions from this Court’s review. See Lux v. Rodrigues, 131 S. Ct. 5, 6 (2010) (stay applications require lesser justification because a stay “simply suspend[s] judicial alteration of the status quo” (citation omitted)). Moreover, Respondents argued the exact opposite below in opposing Applicants’ request for a stay: they argued that if the Sixth Circuit reversed the district court there would be ample means to prevent any voter confusion because “the State, the media, the candidates, the parties and the many organizations engaged in voter education will commit, as they always do, substantial resources to confirm for voters the schedule for voting in the State of Ohio, including early voting.” R.57, PID 1652. This Court should reject such gamesmanship.
* * * For the foregoing reasons, this Court should grant the application for a stay and, or in the alternative, treat the application as a petition for certiorari, grant the petition, and summarily reverse the decision below.
15

Respectfully submitted,
William S. Consovoy* Thomas R. McCarthy Brendan J. Morrissey J. Michael Connolly Wiley Rein LLP 1776 K Street NW Washington, D.C. 20006 Tel: (202) 719-7000 wconsovoy@wileyrein.com Special Counsel for Applicant Ohio Secretary of State Jon Husted
*Counsel of Record

/s/ William S. Consovoy
MICHAEL DEWINE Ohio Attorney General
Stephen P. Carney Richard N. Coglianese Michael J. Hendershot Assistant Attorneys General 30 East Broad Street, 16th Floor Columbus, OH 43215 Tel: (614) 466-2872
Counsel for Applicant Ohio Attorney General Michael DeWine
Date: October 13, 2012

16

CERTIFICATE OF SERVICE I, William S. Consovoy, a member of the bar of this Court, certify that on October 13, 2012, I served a copy of the Reply to the Emergency Application for Stay Pending Certiorari on the listed counsel to the listed email addresses, and that all persons required to be served have been served.

Donald J. McTigue John Corey Colombo Mark A. McGinnis McTigue & McGinnis 545 E. Town Street Columbus, OH 43215 dmctigue@electionlawgroup.com ccolombo@electionlawgroup.com mmcginnis@electionlawgroup.com
Robert F. Bauer Perkins Coie 700 Thirteenth Street, N.W. Suite 600 Washington, DC 20005 rbauer@perkinscoie.com
Counsel for Plaintiffs-Respondents

James M. Dickerson, Jr. Bingham Greenebaum Doll 255 E. Fifth Street, Suite 2350 Cincinnati, OH 45202 jdickerson@bgdlegal.com
Counsel for Defendants-Intervenors

Dated: October 13, 2012

/s/ William S. Consovoy WILLIAM S. CONSOVOY

17

 
 (ORDER LIST: 568 U.S.)

TUESDAY, OCTOBER 16, 2012

12A338

ORDER IN PENDING CASE HUSTED, OH SEC. OF STATE, ET AL. V. OBAMA FOR AMERICA, ET AL.
The application for stay presented to Justice Kagan and by her referred to the Court is denied.

 
 DIRECTIVE 2012-50 October 16, 2012
To: All County Boards of Elections Directors, Deputy Directors, and Board Members
Re: Uniform Days and Hours for In-Person Absentee Voting from November 3, 2012 through November 5, 2012
I hereby set uniform days and hours for in-person absentee voting, for UOCAVA and nonUOCAVA voters alike, as follows:
Saturday, November 3, 2012 – 8:00 a.m. to 2:00 p.m. Sunday, November 4, 2012 – 1:00 p.m. to 5:00 p.m. Monday, November 5, 2012 – 8:00 a.m. to 2:00 p.m.
This Directive expands the uniform days and hours for in-person absentee voting established by Directive 2012-35, which remains in effect. As such, Boards are reminded that any voter in line when that day’s hours for in-person absentee voting ends, may remain in line to apply for and receive an absentee ballot in person.
If you have any questions regarding this Directive, please contact the Secretary of State’s elections attorney assigned to your county by calling (614) 466-2585.
Sincerely,
Jon Husted