Case 2:06-cv-00896-ALM-TPK Document 17 Filed 10/26/2006 Page 1 of 6

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

THE NORTHEAST OHIO COALITION :

FOR THE HOMELESS, et al.

:

:

Plaintiffs,

:

:

v.

:

:

J. KENNETH BLACKWELL, in his official :

capacity as Secretary of State of Ohio

:

:

Defendant.

:

Case No. C2-06-896 JUDGE ALGENON L. MARBLEY
TEMPORARY RESTRAINING ORDER

This matter came to be heard upon Plaintiffs’ Motion seeking an order of the Court,
pursuant to Fed. R. Civ. P. 65, temporarily restraining the enforcement of the following absentee
voter identification provisions set forth in House Bill 3:
1. Section 3509.03(E)(1), (2) and (3), which provides:
(E) One of the following:
(1) The elector’s driver’s license number;
(2) The last four digits of the elector’s social security number;
(3) A copy of the elector’s current and valid photo identification, a copy of a military identification that shows the elector’s name and current address, or a copy of a current utility bill, bank statement, government check, paycheck, or other government document, other than a notice of an election mailed by a board of elections under section 3501.19 of the Revised Code or a notice of voter registration mailed by a board of elections under section 3503.19 of the Revised Code, that shows the name and address of the elector.

2. That portion of Section 3509.04 that provides: -1-

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(Voter must provide one of the following:)
My driver’s license number is . . . . . (Driver’s license number).
The last four digits of my Social Security Number are . . . (Last four digits of Social Security Number).
. . . . In lieu of providing a driver’s license number or the last four digits of my Social Security Number, I am enclosing a copy of one of the following in the return envelope in which this identification envelope will be mailed: a current and valid photo identification, a military identification that shows my name and current address, or a current utility bill, bank statement, government check, paycheck, or other government document, other than a notice of an election mailed by a board of elections under section 3501.19 of the Revised Code or a notice of voter registration mailed by a board of elections, that shows my name and address.
3. That portion of Section 3509.05(A) that provides:
If the elector does not provide the elector’s driver’s license number or the last four digits of the elector’s social security number on the statement of voter on the identification envelope, the elector also shall include in the return envelope with the identification envelope a copy of the elector’s current valid photo identification, a copy of a military identification that shows the elector’s name and current address, or a copy of a current utility bill, bank statement, government check, paycheck, or other government documents, other than a notice of an election mailed by a board of elections under section 3501.19 of the Revised Code or a notice of voter registration mailed by a board of elections under section 3503.19 of the Revised Code, that shows the name and address of the elector.
For the below stated reasons, this Court GRANTS the Plaintiffs’ Motion.
As a threshold matter, the Court finds that the Plaintiffs have representational standing to
bring this case on its own behalf and on behalf of its members. Miller v. Blackwell, 348
F.Supp.2d 916 (S.D. Ohio 2004). An association has standing to bring suit on behalf of its
members when its members would otherwise have standing to sue in their own right, the
interests at stake are germane to the organization’s purpose, and neither the claim asserted nor
the relief requested requires the participation of individual members in the lawsuit. Sandusky
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Co. Democratic Party v. Blackwell, 387 F.3d 565, 573 (6th Cir. 2004). The individual participation of an organization’s members is “not normally necessary when an association seeks prospective or injunctive relief for its members.” Id. at 574 (quoting United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 546 (1996)). The Plaintiffs have met the three-prong test set forth in Sandusky Co. and, therefore, have established standing.
The Court finds that Plaintiffs have satisfied the prerequisites for the issuance of the requested temporary restraining order, in that Plaintiffs have demonstrated a likelihood of success on the merits of their claims that these identification provisions violate Plaintiffs’ members’ constitutional rights, that Plaintiffs’ members will suffer immediate and irreparable injury if the restraining order is not granted, that no third parties will be irreparably harmed if the restraining order is granted, and that the public interest will be served by the restraining order.
Specifically, this Court finds that the phrases “current,” “other government document,” “military identification,” and “driver’s license number” in the above provisions are unconstitutionally vague and are being unequally applied by the Boards of Elections. Plaintiffs have made a strong showing that these absentee voter identification requirements abridge the Plaintiffs’ members’ fundamental right to vote by violating both the Due Process Clause and the Equal Protection Clause. The above-referenced provisions violate the Due Process Clause because the vagueness of the language will cause the election to be fundamentally unfair. Because the absentee voter provisions are so vague, county Boards of Elections have handled absentee voters differently, in violation of the Equal Protection Clause. For these reasons, the harm to Plaintiffs’ members and the general public is irreparable and must be prevented.
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Accordingly, Plaintiffs’ Motion is WELL TAKEN and sustained. It is therefore
ORDERED that the voter identification law as it applies to absentee voter ballots is enjoined as
set forth below, and Defendant, J. Kenneth Blackwell, is to issue a directive not later than 12:00
p.m. on October 27, 2006 requiring the respective County Boards of Elections of the State of
Ohio to comply with the following:
1. The following enjoined voter identification laws for absentee ballots shall not be applied
to any absentee voter ballots or requests for ballots:
A. Section 3509.03(E)(1), (2) and (3), which provides:
(E) One of the following:
(1) The elector’s driver’s license number;
(2) The last four digits of the elector’s social security number;
(3) A copy of the elector’s current and valid photo identification, a copy of a military identification that shows the elector’s name and current address, or a copy of a current utility bill, bank statement, government check, paycheck, or other government document, other than a notice of an election mailed by a board of elections under section 3501.19 of the Revised Code or a notice of voter registration mailed by a board of elections under section 3503.19 of the Revised Code, that shows the name and address of the elector.
B. That portion of Section 3509.04 that provides:
(Voter must provide one of the following:)
My driver’s license number is . . . . . (Driver’s license number).
The last four digits of my Social Security Number are . . . (Last four digits of Social Security Number).
. . . . In lieu of providing a driver’s license number or the last four digits of my Social Security Number, I am enclosing a copy of one of the following in the return envelope in which this identification envelope will be mailed: a current and valid photo identification, a military identification that
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shows my name and current address, or a current utility bill, bank statement, government check, paycheck, or other government document, other than a notice of an election mailed by a board of elections under section 3501.19 of the Revised Code or a notice of voter registration mailed by a board of elections, that shows my name and address.
C. That portion of Section 3509.05(A) that provides:
If the elector does not provide the elector’s driver’s license number or the last four digits of the elector’s social security number on the statement of voter on the identification envelope, the elector also shall include in the return envelope with the identification envelope a copy of the elector’s current valid photo identification, a copy of a military identification that shows the elector’s name and current address, or a copy of a current utility bill, bank statement, government check, paycheck, or other government documents, other than a notice of an election mailed by a board of elections under section 3501.19 of the Revised Code or a notice of voter registration mailed by a board of elections under section 3503.19 of the Revised Code, that shows the name and address of the elector.
2. All County Boards of Elections shall preserve all absentee ballots in their present form.
The Boards of Elections shall also include correspondence with application forms for absentee
ballots and with instructions that accompany the absentee ballots reflecting that the voters need
not comply with the above-enjoined provisions.
3. This Court has considered the issue of bond and has concluded that there is no need for
Plaintiffs to post any bond, as the incorrect issuance of this Order will not damage Defendant.
4. The foregoing restraint shall remain in effect until the Court’s disposition of Plaintiffs’
motion for preliminary injunction, unless this Order is extended or withdrawn by further Order
of the Court.
5. This matter is set for an evidentiary hearing on Plaintiffs’ Motion for a Preliminary
Injunction on Wednesday, November 1, 2006, at 9:00 a.m.
IT IS SO ORDERED.
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DATED: October 26, 2006

s/Algenon L. Marbley ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE

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 Case: 2:06-cv-00896-ALM-TPK Doc #: 2 Filed: 10/24/06 Page: 1 of 52 PAGEID #: 2

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

THE NORTHEAST OHIO COALITION FOR THE HOMELESS and SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1199,
Plaintiffs,
vs.
J. KENNETH BLACKWELL, in his official capacity as Secretary of State of Ohio,
Defendant

Civil Action No. - - - -
Judge _ _ _ _ __
COMPLAINT FOR A TEMPORARY RESTRAINING ORDER, PRELIMINARYAND PERMANENT-INJUNCTIVE RELIEF AND DECLARATORY RELIEF

Plaintiffs The Northeast Ohio Coalition for the Homeless ("NEOCH") and Service Employees International Union ("SEIU") (collectively "Plaintiffs"), who bring this action on behalf of themselves and their members, seek a temporary restraining order, preliminary- and pennanent-injunctive relief, and declaratory relief against Ohio Secretary of State J. Kenneth Blackwell ("Defendant"), and state and allege as follows:
I. THE NATURE OF THE ACTION 1. Plaintiffs bring this action under 42 U.S. C. § 1983 to have the new voteridentification laws set forth in House Bill .3 and codified in Ohio Revised Code Sections

Case: 2:06-cv-00896-ALM-TPK Doc #: 2 Filed: 10/24/06 Page: 2 of 52 PAGEID #: 3

350101(AA), 3501 19,3505.18, 3505.181(A)(2), 3505.181(A)(3), 3505.181(A)(4), 3505.181 (A)(I2), 3505.181 (A)(I3), 3505.181 (B)(6), 3505 181 (B)(7), 3505.181 (B)(8)(a), portions of 3505.182, 3505.183(B)(3)(d), 3505 .183(B)(4)(a)(v), 3505. 183(B)(4)(a)(vii), 3509.03(E), portions of 3509.04, portions of 3509.05, portions of 3509.06(D) and portions of 3509.07 declared unconstitutional, and to obtain an order restraining their enforcement temporarily and enjoining their enforcement preliminarily and permanently, on the grounds that these laws, which subject voters to possible criminal penalties, are confusing, vague, and impossible to apply, and indeed are being and will be applied differently by Ohio's Boards of Elections, and thereby will work a patent and fundamental unfairness on voters and violate their members' fundamental right to vote as protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution.

2.

Plaintiffs further bring this action under 42 U.S.C § 1983 to have the new voter-

identification laws set forth in House Bill 3 and codified in Ohio Revised Code Sections

3501.01(AA), 3501.19,3505.18, 3505.181(A)(2), 3505.181(A)(3), 3505.181(A)(4),

3505.181 (A)(I2), 3505.181 (A)(l3), 3505.181 (B)( 6), 3505.181 (B)(7), 3505.181 (B)(8)(a),

portions of 3505.182, 3505.183(B)(3)(d), 3505 .183(B)(4)(a)(v), 3505.18.3(B)(4)(a)(vii),

3509.03(E), portions of 3509.04, portions of 3509.05, portions of3509.06(D) and portions of

3509.07 declared unconstitutional, and to obtain an order enjoining their enforcement

preliminarily and permanently, on the grounds that these laws require voters who vote on

Election Day to produce certain types of identification either at the polls or within ten days after

Election Day, whereas voters who vote by absentee ballot either before or on Election Day are

not required to produce such identification, and thereby place an unnecessary, unconstitutional,

unequal and undue burden on their members' right to vote in violation of the Equal Protection

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Clause of the Fourteenth Amendment to the United States Constitution and the Civil Rights Act of1964 (42 U.S.C. §§ 1971(a)(2)(A) and (a)(2)(B)).

3

Plaintiffs further bring this action under 42 U.S C. § 1983 to have the new voter-

identification laws set forth in House Bill 3 and codified in Ohio Revised Code Sections

350101(AA), 3501.19,3505.18, 3505.181(A)(2), 3505 181(A)(3), 3505.181(A)(4),

3505.181 (A)(12), 3505.181 (A)(l3), 3505.181 (B)(6), 3505.181 (B)(7), 3505.181 (B)(8)(a),

portions of 3505.182, 3505.183(B)(3)(d), 3505183(B)(4)(a)(v), 3505 .183(B)(4)(a)(vii),

3509.03(E), portions of 3509.04, portions of 3509.05, portions of 3509.06(D) and portions of

3509.07 declared unconstitutional, and to obtain an order enjoining their enforcement

preliminmily and pennanently, on the grounds that these laws (a) bar voters who do not have the

required identification but do have a Social Security number from voting on Election Day, in

violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the

United States Constitution and the Civil Rights Act of 1964 (42 US.C. §§ 1971(a)(2)(A) and

(a)(2)(B)), (b) require voters who use certain types of identification (e. g., a utility bill or bank

statement) to provide proof oftheir cun-ent addresses but do not require voters who use other

types of identification (e.g., a driver's license or state-identification card) to provide such proof,

in violation of the Equal Protection Clause of the Fomteenth Amendment to the United States

Constitution and the Civil Rights Act of 1964 (42 US.C. §§ 197l(a)(2)(A) and (a)(2)(B)), and

(c) impose a poll tax on these types of voters by requiring them to purchase a state-identification

card and/or birth certificate to exercise their right to vote, in violation of the Twenty-Fourth and

Fourteenth Amendments to the United States Constitution.

4.

Plaintiffs further bring this action under 42 US.C § 1983 to obtain an order

declaring that the new provisional-ballot laws set forth in House Bill 3 and codified at Ohio

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Revised Code Sections .3505J81(B)(4) and .3505183(B) are so vague and intemally inconsistent that Ohio's Boards of Elections cannot and will not apply them unifonnly when determining whether provisional ballots are eligible to be counted, and thereby will work a patent and fundamental unfairness on voters, in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. Plaintiffs further seek an order that interprets these statutory provisions and sets forth the procedures that Ohio's Boards of Elections must apply when determining whether provisional voters' ballots should be counted under Ohio Revised Code Sections 3505,181(B)(4) and 3505J83(B).

II. JURISDICTION AND VENUE

5.

This case arises under the Constitution and Jaws of the United States. This Court

has subject-matterjurisdiction of this action under 28 U.S.C. §§ 13.31, 134.3(3) & (4), and 42

U.SC. §§ 1971(d) and 1973j(f). This suit is authorized by42 U.S.C. § 1983. This Court has

jurisdiction to grant both declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 2202.

6. Venue in this district and division is proper under 28 U.S.C. § 1391(b) because this action is predicated upon a federal question and a substantial part of the events or omissions giving rise to the claims alleged in this complaint have occurred, and will continue to occur, in this district

III. THE PARTIES

7.

PlaintiffNEOCH is a non-profit charitable organization operating in the City of

Cleveland that provides services to approximately 25,000 homeless people each year.

Approximately ten percent of its members are homeless. Over the last year PlaintiffNEOCH has

helped hundreds of homeless people register to vote. PlaintiffNEOCI-I also helps homeless

people obtain birth certificates, as between 20 and 30 percent of that population does not have

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any form of identification. PlaintiffNEOCH has standing to enforce the rights asserted here on behalf of itself and its members

8.

PlaintiffSEIU, located in Columbus, Ohio, is the local affiliate ofa national union

with more than I .8 million members and 50,000 retirees. It engages in voter-registration

activities and other election-related efforts on behalf of its members. PlaintiffSEIU has standing

to enforce the rights asserted here on behalf of itself and its members.

9

Defendant l Kenneth Blackwell is sued in his official capacity as the Secretary of

State of Ohio Under the Ohio Election Code (Ohio Rev. Code §§ 3501 m et seq.), the Secretary

of State functions as the chief-election officer of the state (Ohio Rev. Code§ 350104). In that

capacity, he is charged with the duty of providing general supervision over the administration of

the election laws throughout the State of Ohio, including the specific statutory provisions

challenged in this lawsuit He is also responsible for promulgating rules, instructions, and

directives for the conduct of elections in Ohio, and compelling election officers to observe the

requirements of all state and federal election laws (Ohio Rev. Code§§ 3501 01 and 3501.05)

IV. THE NEW VOTER-IDENTIFICATION LAWS ARE CONFUSING, VAGUE, AND IMPOSSIBLE TO APPLY

A. Overview Of The New Voter-Identification Laws

I0. Plaintiffs incorporate the allegations in paragraphs I through 9 as if fully restated

here.

11. In 2006 the Ohio General Assembly passed House Bill 3, which amended the Ohio Election Code to include new voter-identification and provisional-ballot laws. These new

laws took effect on June I, 2006.

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12. Under these new voter-identification laws, voters may or must provide specific types of identification when casting their ballots.

13. Specifically, voters may or must provide proof of their identities "in the form of a current and valid photo identification, a military identification that shows the voter's name and current address, or a copy of a current utility bill, bank statement, government check, paycheck, or other government document, other than a notice of an election mailed by a board of elections under section 3501.19 ofthe Revised Code or a notice ofvoterregistration mailed by a board of elections under section 3503 .19 ofthe Revised Code, that shows the name and current address of the elector." E.g., Ohio Rev. Code§ 3505J8(A)(l).

14 These new voter-identification laws are mandatory for all persons who cast their votes by regular ballot on Election Day. Ohio Rev. Code § 3505.18

15. These new voter-identification laws are not mandatory for absentee voters who cast their votes by absentee ballot, whether by mail or in-person at their Boards of Elections, before or on Election Day. Ohio Rev Code§§ 3509 03, 3509.04, 3509.05.

16. Some, but not all, voters who cannot provide any of the required forms of identification will be allowed to cast a provisional ballot on Election Day.

a)

Voters who have but cannot provide the required identification, and also

have a Social Security number, will be allowed to cast a provisional ballot

Ohio Rev Code§§ 3505.18(A)(2) & (3), 3505.181(A)(2) & (3).

b) Voters who do not have the required identification, and also do not have a Social Security number, will be allowed to cast a provisional ballot Ohio Rev Code§§ 3505.18(A)(4) & (5), 3505 . 181(A)(4) & (12).

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c) Voters who have but refuse to provide the required identification, or who have but refuse to provide a Social Security number, will be allowed to cast a provisional ballot. Ohio Rev Code§§ 3505.18(A)(6), 3505.181 (A)(l3).

d) Voters who do not have the required identification, but do have a Social Security number, are not permitted to cast a regular or provisional ballot on Election Day. Ohio Rev. Code §§ 3505.18, 3505.181.

B. Po•·tions Of The New Vote•·-Identification Laws Are Confusing, Vague Or Impossible To Apply, As Shown By The Fact That Boards Of Elections A1·e Applying Different Interpretations Of These Laws
17. Plaintiffs incorporate the allegations in paragraphs I through 16 as if fully restated

here 18.

The new voter-identification laws are confusing, vague, and impossible to apply.

19. Indeed, Boards of Elections are applying different interpretations of the new

voter-identification laws

I.

Boards ofElections are app~ping different inte1pretations ofthe

phrase "current utility bill, bank statement, govemment check,

paycheck, or other government document"-and voters will be

uncertain of what to provide.

20. One acceptable form of identification is a "current utility bill, bank statement, government check, paycheck, or other government document." Ohio Rev. Code

§ 3505.18(A)(l).

21. The Ohio Election Code does not define the word "current" as it is used in this

statutory provision.

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22c The Ohio Election Code does not specify whether a utility bill, bank statement, paycheck, government check, or other government document will be "current" and acceptable if:

a) It is dated within the last thirty days;

b) It is dated within the last sixty days;

c) It is dated within the last ninety days;

d) It is dated within any particular time period; or

e) It has any date so long as the address is current

23c Boards of Elections are applying their own interpretation of the word "current" or have not promulgated a standard at alL

a)

A Cuyahoga County Board of Elections representative says that a

"current" utility bill or similar fom1 of identification should be this

month's bill to be acceptable, doesn't "think" they'll disenfranchise

anyone over last month's bill, but says the board will not honor older bills

even with a current address.

b) The Mahoning and Franklin County Boards of Elections do not have policies regarding how "current" a utility bill or similar form of identification must to be acceptable.

c) Election officials at the Stark County Board of Elections were unsure how recent or current a utility bill or similar forn1 of identification must be to be acceptable, but thought that it probably must be from October or November

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24. Sixty-three Ohio Boards of Elections maintain websites Only four of them attempt to explain how current a utility bill or similar form of identification must be to be acceptable but even they offer only that the identification be valid
25. Boards of Elections are not applying, and will not apply, the same standards when interpreting the word "current" in the phrase "current utility bill, bank statement, paycheck, government check or other government document" in the new voter-identification laws.
26 Voters who provide a copy of what they believe to be a "current" utility bill, bank statement, government check, paycheck, or other government document will be deprived of their right to vote iftheir Boards of Elections decide, either at the polling place or after the voter's provisional or absentee vote has already been cast, that they will not accept this identification
2. Boards ofElections will apply different inteqJI'etations to the phrase "other government document"-and voters will be uncertain of what to provide.
27. Another acceptable fom1 of identification is an "other government document." Ohio Rev. Code§ 3505.18(A)(l ).
28 The Ohio Election Code does not define the phrase "other government document" as it is used in this statutory provision.
29. To be acceptable, a "photo identification" must be issued by the State of Ohio or United States Government Ohio Rev. Code§ 35010l(AA)(5).
30. The Ohio Election Code is silent, however, regarding whether the "government" referred to in the phrase "other government document" must be the State of Ohio or the United States Government, or whether it could be some other governmental entity.
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31 Boards of Elections are applying different standards when interpreting the phrase "other govemment document"
a) The Cuyahoga County Board of Elections will accept any type of government document from the U.S , city, state, or county government
b) The Hamilton and Knox County Boards of Elections will only accept a document that was issued by the State of Ohio or the United States Govemment
c) One representative of the Franklin County Board of Elections had "no idea" stating that the term is "not defined" but would exclude board of elections documents, Another representative seemed to have a more expansive view,
32, Sixty-three Ohio Boards of Elections maintain websites, Only two of them, Knox County and Hamilton County, attempt to explain the meaning of the phrase "other govemment document"
33, Boards of Elections are not applying, and will not apply, the same standards when determining whether to accept an "other govemment document"
34, Voters who provide an "other government document" will be deprived of their right to vote if their Boards of Elections decide, either at the polling place or after the voter's provisional or absentee vote has already been cast, that they will not accept this identification,
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3.

Boards ofElections are applying different pmctices regarding

wlzetlzer tlze "Photograph Number" on Olzio driver's licenses will

be accepted-and voters will be uncertain of what to provide.

35 Absentee voters may provide their driver's license number instead of one ofthe required forms of identification when they return their absentee ballots to the Board of Elections. Ohio Rev Code § 3509.03(E).

36. But an Ohio driver's license contains two numbers:

a)

One small number appears buried along the center of the left-hand side of

the driver's license under the words "LICENSE NO" (License Number).

b) The other number, much larger and more prominent, appears over the photograph (Photograph Number).

37. The statute does not specify which of these two numbers voters must provide when they return their absentee ballots.

38. Boards of Election are applying different standards, or no standards at all, to the issue of whether to accept only the License Number, only the Photograph Number, or both.

d)

While the executive director of the Cuyahoga County Board of Elections

said that the Board will count absentee ballots with the Photograph

Number, two other staff persons reported that such ballots are being

rejected.

a)

The Mahoning County Board of Elections will not accept the Photograph

Number

b) The Franklin County Board of Elections has made a formal inquiry to Defendant regarding whether it may accept the Photograph Number

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c)

The Trumbull County Board of Elections does not understand the issue.

39. Sixty-three Ohio Boards of Elections maintain websites. None of them address

this issue.

40 Boards of Elections are not applying, and will not apply, the same standards when determining whether to accept both numbers from an absentee voter's driver's license.

41. Voters who provide the Photograph Number will be deprived oftheir right to vote iftheir Boards of Elections decide, either at the polling place or after the voter's provisional or absentee vote has already been cast, that they will not accept this identification.

4. Boards ofElections are applying different practices regarding wlzetlzer militlliJ'·identification canlY are acceptable-am/ voters will be uncertain ofwlzetlzer these may be provided.

42. Another acceptable form of identification is a "a military identification that shows the voter's name and cuiTent address." Ohio Rev. Code§ 3505 .18(A)(l ).

43. On information and belief, military-identification cards issued by the Army, Air Force and Navy to their military personnel do not show the holder's current address

44. The impossibility of providing a military-identification card with a current address is causing and will cause significant confusion when voters try to present militaryidentification cards so that they can vote, either by absentee ballot or on Election Day.

45. Boards of Elections are applying different practices regarding whether to accept military-identification cards that do not show current addresses.

a) The Mahoning and Trumbull County Boards of Elections will not accept military-identification cards that do not show current addresses

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b) The Cuyahoga County Board of Elections will accept militaryidentification cards that do not show current addresses.
46 Sixty-three Ohio Boards of Elections maintain websites . Several of those websites repeat the language of the statute that provides that military-identification cards must show cunent addresses. Three of those websites state that they will accept military-identification cards but do not specify whether those identification cards must show current addresses.
47. Boards of Elections are not applying, and will not apply, the same standards when detennining whether to accept military-identification cards.
48 Voters who provide military-identification cards will be deprived of their right to vote if their Boards of Elections decide, either at the polling place or after the voter's provisional or absentee vote has already been cast, that they will not accept this identification.
5. Some Boards ofElections are wrong()' requiring voters to produce a photo identification with a current address-and voters will be nncertain of what must be pro1•ided.
49. Another acceptable form of identification is a "current and valid photo identification." Ohio Rev. Code§ 3505J8(A)(l).
50. The phrase "current and valid photo identification" is not defined in the same statutory provision in which it appears. Ohio Rev Code § 3505 . 18(A)(l ).
5 L A different statutory provision, Ohio Revised Code Section 3501.01 (AA), explains that a" photo identification" must show the voter's name and photograph, have an expiration date that has not passed, have been issued by either the United States Government or the State of Ohio, and have a current orformer address.
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52. Accordingly, Ohio driver's licenses or state-identification cards that show former addresses are acceptable identification. Ohio Rev. Code§§ 350LOI(AA), 3505.18(A)(l).

53 Some Boards of Elections are not accepting and will not accept Ohio driver's licenses or state-identification cards that show former addresses.

a)

The Trumbull County Board of Elections will deny the right to cast a

regular ballot to voters who present an unexpired Ohio driver's license or

state identification, but Mahoning County (next door) will permit the voter

to vote.

b) Cuyahoga County's Board of Elections staff attempted to deny at least one voter the right to vote a regular ballot who presented a driver's license with his previous ballot, despite the executive director's assurance that this was not the practice. The voter, a lawyer who !mew the law, had to persist through a layer of supervision before the issue was resolved.

54 Sixty-tluee Ohio Boards of Elections maintain websites. Only four of those websites state that valid driver's licenses with former addresses would be acceptable. The remaining websites do not address the issue.

55 Boards of Elections are not applying, and will not apply, the same standards when determining whether to accept Ohio driver's licenses or state-identification cards that show fmmer rather than cunent addresses.

56. Voters who provide Ohio driver's licenses or state-identification cards that show former addresses will be deprived of their right to vote if their Boards of Elections decide, either

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at the polling place or after the voter's provisional or absentee vote has already been cast, that they will not accept this identification.
6. Some Boards ofElections are wrong()' requiring absentee voters to produce one oftlze required forms ofidentification-ami absentee voters will be uncertain ofwlzat must be provided.
57. Voters who vote by absentee ballots, whether by mail or in-person at their Boards of Elections, are permitted to provide a Social Security number or driver's license number in lieu ofone of the required forms of identification Ohio Rev. Code§§ 3509.03, 3509.05(A).
58. Indeed, the Identification Envelope Statement on the absentee ballot envelope, which is filled out and returned by the voter, specifically states that the voter "must provide o11e ofthe following:" (a) a driver's license number, (b) the last four digits of a Social Security number, or (c) a copy of one of the required forms of identification Ohio Rev. Code§ 3509.04.
59. Nevertheless, some Boards of Elections are refiJsing to accept Social Security numbers from early in-person voters who cast absentee ballots. Instead, they are requiring early in-person voters to provide one of the required forms of identification when applying for or submitting their ballots.
a) The Lucas County Board of Elections is requiring early in-person voters to provide one of the required fon11S of identification, and will not accept Social Security numbers
b) The Cuyahoga County Board of Elections is requiring early in-person voters to provide one of the required forms of identification and will not accept Social Security numbers-but will accept Social Security numbers from absentee voters who mail in their ballots,
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60. Other Boards of Elections, including the Franklin County Board of Elections, are allowing early in-person voters to provide Social Security numbers in lieu of one of the required forms of identification.
6 L Boards of Elections are applying different standards regarding whether early inperson voters may provide Social Security numbers in lieu of providing one of the required forms of identification.
62. Early in-person voters who do not have one of the required forms of identification will be deprived of their right to vote if their Boards of Elections decide, either at the Board of Elections or after the voter's absentee vote has already been cast, that they will not accept Social Security numbers as the sole fom1 of identification.
C. Defendant Has Failed To Give Boards Of Elections The Necessary Guidance Regarding How To Interpret And Apply These New Laws
63. Plaintiffs incorporate the allegations in paragraphs 1 through 62 as if fully restated here.
64. Defendant, in his capacity as Ohio Secretary of State, has been repeatedly asked to provide guidance regarding how Boards of Elections should interpret and apply the new voteridentification laws.
65. Defendant had previously indicated that he would issue such directives. 66. On .June 5, 2006, Defendant issued Advisory No 2006-05 to all Boards of Elections. This directive contains 21 pages summarizing the various changes made in House Bill 3. It does not, however, provide the necessary guidance regarding how Boards of Elections should interpret and apply the new voter-identification laws.
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67 In fact, Defendant's Advisory No. 2006-05 fails to correctly describe the voteridentification requirements. It states as follows:

RC 3505 18 as amended requires each elector, upon appearing at the polling place to vote, to announce his or her full name and current address and provide proofof the elector's identity. The form of identification that may be used includes the voter's current and valid photo identification card, military identification, copy of utility bill, bank statement, paycheck, govemment check, or government document* showing the voter's name and current address.
*The act specifies that an elector cannot use as proof of identification a notice that the board of elections mailed to voter [sic] underRC 3501 19or350319.
If the elector does not have, or fails or refuses to provide, the required proof of identity, that elector may cast a provisional ballot under R.C 3505.181, discussed below.

68. following:

Regarding absentee ballots, Defendant's Advisory No. 2006-05 states only the

Any qualified Ohio elector who is registered to vote at the elector's correct voting residence address may request an absentee ballot without stating a reason. The act:
• Adds the military ID as another document that may be used by an elector as proof of identity;
• Specifies that an elector cannot use as proof of identification a notice that the board of elections mailed to voter [sic]under R.C. 350Ll9 or3503. 19; and
• Specifies the reasons for which an absentee ballot must be rejected. See R.C 3509.09,351 L09 and 351 Ll3.

69. Defendant's Advisory No 2006-05 fails correctly to quote the language in the new voter-identification requirements (e.g., Ohio Rev. Code§ 3505, 18(A)).

a) It fails to quote the language of the statute requiring "a military identification that shows the voter's name and current address."

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b)

It fails to quote the language of the statute requiring "a copy of a current

utility bill, bank statement, government check, paycheck, or other

government document ... ,"

70. Defendant's Advisory No. 2006-05 wholly fails to address the issues raised in this complaint, and indeed for some issues is likely to cause more rather than less confusion,

a)

It fails to explain how current or recent a utility bill or similar form of

identification must be to be acceptable-indeed, it leaves out the word

"current" in its description of these forms of identification.

b)

It fails to explain what the phrase "other government document" means or

whether it must be issued by the State of Ohio or United States

Government

c)

It fails to infonn Boards of Elections that absentee voters can provide a

driver's license number in lieu of the required identification, much less

explain whether a Photograph Number will be acceptable.

d)

It fails to address whether military identification cards without curTent

addresses will be acceptable-indeed, it leaves out the phrase "that shows

the voter's name and current address" when listing military identifications

as acceptable forms of identification.

e)

It fails to advise Boards of Elections that Ohio driver's licenses and state-

identification cards may, by law (Ohio Rev. Code§ 350101 (AA)), show

forn1er addresses and still constitute acceptable identification,

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f)

It fails to advise Boards of Elections that absentee voters may, by law

(Ohio Rev. Code§§ 3509.03, 3509.05(A)), provide the last four digits of a

Social Security number or a driver's license number in lieu of providing

one of the required forms of identification.

71. On August 2, 2006, Director of Elections Judy Grady issued a one-page memorandum to Boards of Elections that further discussed the voter-identification requirements in House Bill 3.

72. This one-page memorandum provides a different but still incorrect description of the voter-identification requirements:

Ohio Revised Code section 3505.18 as amended requires each elector, upon arriving at the polling place to vote, to announce his or her full name and current address and provide proof of the elector's identity. The form of identification that may be used includes the voter's current and valid photo identification card, military identification that shows the voter's name and current address, or a copy of a current utility bill, bank statement, govemment check, paycheck or other govenm1ent document, other than a notice of an election mailed by a board of elections under Ohio Revised Code section 350 Ll9

73. The above-quoted description omits the following language at the end ofthe paragraph: "or a notice of voter registration mailed by a board of elections under section 3503.19 of the Revised Code, that shows the name and current address ofthe elector."

74. Some objectionable aspects of the new voter-identification laws, including the impossibility of providing a military-identification card with a current address, are fatally flawed and unenforceable, and could not have been cured by the Defendant's issuance of directives

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75, The confusion surrounding other aspects ofthe voter-identification laws could, however, have been significantly reduced or eliminated if the Defendant had issued directives regarding how to apply these laws,

76, Defendant failed to issue the necessary directives prior to the start of absentee

voting in early October.

77, To date, Defendant has still failed to issue the necessary directives,

78, The resulting confl!sion has caused, and will cause, the disenfranchisement of individual voters due to uncertain, inconsistent, changing, or non-existent interpretations of the foregoing aspects of the new voter-identification laws,

D.

Absentee Voters Who Have Already Cast Their Votes Have Been And Will Be Irreparably Harmed By The Uncertainty And Confusion

Sun·onnding These New Voter-Identification Laws

79, Plaintiffs incorporate the allegations in paragraphs I through 78 as if fully restated

here

80, Even if the Defendant were to issue the necessary directives at this late date, absentee voters who have already cast their votes have suffered and will suffer irreparable hamr because of the confusion surrounding the new voter-identification provisions,,

a)

Absentee voters who have already provided what they believed to be a

"current" utility bill, bank statement, govemment check, paycheck, or

other government document will be deprived of their right to vote if their

Boards of Elections decide, either now or later, that they will not accept

such identification,

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b)

Absentee voters who have already provided what they believed to be an

"other government document" will be deprived of their right to vote if

their Boards of Elections decide, either now or later, that they will not

accept such identification.

c)

Absentee voters who have already provided the Photograph Number from

their Ohio driver's licenses will be deprived of their right to vote iftheir

Boards of Elections decide, either now or later, that they will not accept

such identification.

d)

Absentee voters who have already provided a military-identification card

will be deprived of their right to vote if their Boards of Elections decide,

either now or later, that they will not accept such identification.

e)

Absentee voters who have already provided a copy of a driver's license

with a former rather than current address will be deprived of their right to

vote if their Boards of Elections decide, either now or later, that they will

not accept such identification.

f)

Absentee voters who have already provided a Social Security number or

driver's license number in lieu of a required fom1 of identification will be

deprived of their right to vote if their Boards of Elections decide, either

now or later, that they will not accept such identification.

81. These absentee voters will be irreparably harmed because they will not be given notice of the need to provide a different form of identification, nor given the opportunity to

provide it

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82. These absentee voters will also be irreparably harmed because they cannot ever find out iftheir ballots were rejected and not counted-unlike provisional voters, who can find out whether their ballots were rejected and not counted, and if so, why. Ohio Rev. Code § 3505.18l(B)(5)(b).

83. These voters' inability to know what standards they must meet when providing identification, to provide a different form of identification if it is later determined that the identification they provided is not acceptable, or even to find out iftheir votes were counted, have caused and will cause immediate and irreparable harm to those absentee voters who have submitted or will submit with their absentee ballots any of the following: (a) a "current" utility bill or similar identification, (b) an "other government document," (c) a Photograph Number, (d) a military-identification card, (e) a Social Security number in lieu of the required identification, or (f) a copy of a driver's license with a fonner rather than current address

E. The Confusion Surrounding The Voter-Identification Laws Will Have A Chilling Effect On Voters Who Are Told And Must Acknowledge That They Will Commit A CI"ime If They Violate These Laws

84. here.

Plaintiffs incorporate the allegations in paragraphs I through 83 as iffully restated

85. The Ohio Election Code, which includes the new voter-identification laws, provides that voters who commit election falsification can be prosecuted, fined and jailed.

a) A voter who knowingly states a falsehood as to a material matter is guilty ofthe crime of election falsification, which is a felony ofthe fifth degree Ohio Rev Code § 3.399. 36

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b) A fifth-degree felony is punishable by a maximum fine of$ 2,500 and a sentence of between six and twelve months in prison. Ohio Rev. Code

§§ 2929.14,2929.18.

86. More broadly, voters who violate any provision ofthe Ohio Election Code, including the new voter-identification laws, can be prosecuted, fined andjailed.

a)

A voter who violates any provision of the Ohio Election Code is guilty of

a first-degree misdemeanor Ohio Rev. Code § 359940

b) Voters can be prosecuted for this first-degree misdemeanor even if they did not intend to violate, or did not knowingly violate, the Ohio Election Code, including the new voter-identification laws. Ohio Rev. Code

§ 290L2l(B).

c)

A first-degree misdemeanor is punishable by a maximum fine of $1,000

and a maximum sentence of six months in prison. Ohio Rev. Code

§§ 2929.24, 2929 28.

87. Voters who submit absentee ballots must aclmowledge, in writing, that they face possible criminal penalties. Ohio Rev. Code§ 3509.04.

a)

Absentee voters who choose to provide one of the required fom1s of

identification when submitting their ballots must state that they are

enclosing in the return envelope "a copy of one of the following .. a

cunent and valid photo identification, a military identification that shows

my name and current address, or a current utility bill, bank statement,

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govemment check, paycheck, or other government document ... that shows my name and address!'

b) Immediately under that statement, absentee voters must acknowledge and sign this statement: "I hereby declare, under penalty of election falsification, that the statements above are true, as I verily believe!'

c)

Immediately under the signature line appears the following statement in

capital letters: "WHOEVER COMMITS ELECTION FALSIFICATION

IS GUILTY OF A FELONY OF THE FIFTH DEGREE "

88. Voters who submit provisional ballots must also acknowledge, in writing, that they face possible criminal penalties. Ohio Rev. Code§ 3505.182.

89 Voters do not know, and cannot !mow, what standards Boards of Elections will apply to several aspects ofthe new voter-identification laws.

a)

Several aspects of the new voter-identification laws are confusing, vague,

and impossible to apply.

b) Boards of Elections are in fact applying different interpretations of these aspects of the new voter-identification laws.

c)

Defendant has failed to issue guidance necessary to remedy the resulting

uncertainty and confusion.

90, Because voters are told and must acknowledge that they are subject to criminal penalties if they violate the Ohio Election Code, the uncertainty and confusion sunounding the meaning and interpretation of these aspects of the new voter-identification laws is having, and will have, a chilling effect on voters' willingness to exercise their right to vote.

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9 L This chilling effect has deprived, and will deprive, voters of their right to vote.

V. THE NEW VOTER-IDENTIFICATION LAWS UNLAWFULLY TREAT SOME VOTERS LESS FAVORABLY THAN OTHER VOTERS

A. The New Voter-Identification Laws Treat Election-Day Voters Less Favorably Than Absentee Voters Because Only Election-Day Voters Must Provide One Of The Required Fo1·ms Of Identification

92. here.

Plaintiffs incorporate the allegations in paragraphs I through 91 as if fully restated

93. Any registered voter may vote by absentee ballot Ohio Rev. Code § 3509. 02(A).

94 Absentee voters can apply for and cast their ballot either by mail or in-person at the Board of Elections. Ohio Rev. Code § 3509.05.

95. When absentee voters apply for or return their absentee ballots, they can provide either a driver's license number, the last four digits of a Social Security number, or one ofthe required forms of identification. Ohio Rev. Code§§ 3509 03(E), 3509.04, 3509.05(A).

96. Absentee voters therefore need not provide one of the required forms of identification when they apply for or return their absentee ballots, although they may choose to do so

97 Voters who vote at polling places on Election Day must, however, provide one of the required fom1s of identification in order to cast their vote. Ohio Rev. Code § 3505.18.

98. The new voter-identification laws therefore treat voters who vote at polling places on Election Day less filVorably than voters who vote by absentee ballots either before or on Election Day.

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B. The New Voter-Identification Laws Treat Voters Who Do Not Have ANnuymObefrTs,hLe eRsseqFuaivroerdaIbdlyenTtihfaicnatOiotnh,erBnVtoDteorsHBaevceaSuosceiTalhSeeycDureiptyrive These Voters Of The Right To Vote On Election Day
99. Plaintiffs incorporate the allegations in paragraphs I through 98 as if fully restated here.
I 00. The new laws that govern voting procedure and the eligibility to cast provisional ballots allow five categories of voters who cannot or will not provide the required identification to vote by provisional ballot on Election Day. Ohio Rev. Code§§ 3505.18(A), 3505.181(A).
101. The first category includes any voter who "has but is unable to provide" the required identification "but has a social security number." These voters may provide the last four digits of their Social Security numbers and then cast a provisional ballot Ohio Rev. Code §§ 350518(A)(2), 3505.181(A)(2).
I 02. The second category includes any voter who "has but is unable to provide" the required identification and "has a social security number but is unable to provide the last four digits" of that number. Ohio Rev Code§§ 3505.18(A)(3), 3505 181(A)(3).
103. Voters in this second category may cast a provisional ballot but it will only be counted if they return to their Boards of Elections within ten days after Election Day and provide either one of the required forms of identification or the last four digits of their Social Security numbers. Ohio Rev. Code§§ 3505.181(B)(7), 3505.181(B)(8) and 3505.181(B)(8)(a).
I 04. The third category includes any voter who "does not have" the required identification "and cannot provide the last four digits of the elector's social security number because the elector does not have a social security number." Ohio Rev Code§§ 3505.18(A)(4), 3505.181(A)(4).
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I 05. Voters in this third category may cast a provisional ballot after they "execute an affirmation under penalty of election falsification that the elector cannot provide the identification required under that division or the last four digits of the social security number for those reasons." Ohio Rev. Code§ 3505 18(A)(4).
106. The fourth category includes any voter who "does not have" the required identification "and cannot provide the last four digits of the elector's social security number because the elector does not have a social security number" and also "declines to execute" the required affirmation Ohio Rev Code§§ 350518(A)(5), 3505181(A)(l2).
107 Voters in this fourth category may cast a provisional ballot but it will only be counted ifthey return to the Board of Elections within ten days after Election Day and execute the required affirmation. Ohio Rev. Code§§ 3505.181(B)(7), 3505.181(B)(8), 3505 181 (B)(S)(a)(iii).
108 The fifth and final category includes any voter who "has but declines to provide" the required identification or "has a social security number but declines to provide" the last four digits of that number. Ohio Rev. Code§§ 3505.18(A)(6), 3505 181(A)(I3).
I 09 Voters in this fifth category may cast a provisional ballot but it will only be counted if these voters retum to their Boards of Elections within ten days after Election Day and provide either the required identification or the last four digits oftheir Social Security numbers. Ohio Rev. Code§§ 3505.181(B)(7), 3505.181(B)(8) and 3505 . 181(B)(S)(a).
110. There is no provision that allows voters who do not have the required identification, but have and are willing to provide the last four digits of their Social Security numbers, to cast a provisional ballot Ohio Rev. Code §§ 3505. 18(A), 3505 . 181(A).
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Ill. The new voter-identification Jaws do not allow these voters to vote by either regular ballot or provisional ballot on Election Day.

112 The new voter-identification Jaws do not allow these voters to vote on Election Day even though the notice that was mailed to each voter stated that"[v]oters who do not provide one of these documents will still be able to vote by providing the last four digits of the voter's social security number and by casting a provisional ballot" Ohio Rev. Code§ 350119.

11.3. The absence of any provision in the new voter-identification laws that allows voters who do not have the required identification but do have a Social Security number to cast their votes on Election Day, and the uncertainty and confusion resulting fi·om this Jack of statut01y authorization, threaten to deprive and effectively will deprive these voters oftheir

fundamental right to vote

114. Voters who Jack the required identification but have Social Security numbers must purchase State of Ohio identification cards and/or birth certificates to vote on Election Day.

115. On infonnation and belief; the cost of a new state-identification card is $ 8.50

116. The cost of obtaining a birth certificate varies fi01n jurisdiction to jurisdiction.

11 7. In Cleveland, the cost of obtaining a birth certificate is approximately $ 19 00.

C.

TGUhtoievlietNyrenBwmilVel,noBtteaDrno-kIcduSemtnaettinellmtcLaetneistos,nGFLaoavvwoerrsanTbmlryeenaTtthCVahonteeOcrktsh, eWP1a·hyVocohPteercroksviOBderecOAauthseer

Only These Voters Must Provide Proof Of Their Current Addresses

118 Plaintiffs incorporate the allegations in paragraphs 1 through 117 as if fully

restated here.

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119 Voters who provide Ohio driver's licenses or state-identification cards with their former addresses can cast regular ballots, and are not required to provide proof of their current addresses. Ohio Rev. Code§§ 35010l(AA), 3505.18(A)(l).
120. Voters who have but are unable to provide the required identification can cast provisional ballots upon providing the last four digits of their Social Security numbers, and are not required to provide proof of their current addresses Ohio Rev. Code§§ 3505.18(A)(2), (3), 3505.181(A)(2), (3).
121 Voters who have neither the required identification nor a Social Security number can cast provisional ballots upon executing a written affirmation that they do not have them, and are not required to provide proof of their current addresses. Ohio Rev. Code §§ 3505.18(A)(4), (5), 3505 181(A)(4), (12).
122. The only voters who must provide proof of their current addresses are those who provide identification in the form of a utility bill, bank statement, government check, paycheck, or other government document E.g., Ohio Rev. Code § 3505 .18(A)(1 ).
123. At least some voters who do not have the required identification but do have Social Security numbers could vote on Election Day if they were permitted to provide a utility bill, bank statement, government check, paycheck, or other government document with a former rather than current address.
124. The voter-identification laws impermissibly require only some, but not all, registered voters to provide proof of their current addresses.
125. This inequality threatens to deprive and effectively will deprive some of those voters, including members of Plaintiffs, oftheir fundamental right to vote.
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VI.

THE NEW PROVISIONAL-BALLOT LAWS DO NOT PROVIDE AODFEEQLUEACTTEIOGNUSISDHAONUCLEDRAEPGPALRYDWINHGEWN HDAETTESRTMANINDIANRGDWS HBOEATHRDESR

PROVISIONAL BALLOTS ARE ELIGIBLE TO BE COUNTED

126. Plaintiffs incorporate the allegations in paragraphs I through 125 as if fully

restated here.

127.. In addition to adding new voter-identification Jaws, House Bill 3 amended the Ohio Election Code to include new provisional-ballot Jaws. Ohio Rev. Code§§ 3505.181,

3505.182,3505.183.

128. One new provisional-ballot Jaw attempts to explain what factors Boards of Elections must consider when determining whether provisional ballots are eligible to be counted

Ohio Rev. Code§ 3505.183.

129 This new provisional-ballot Jaw is vague, contradictory and fatally flawed.

130. This new provisional-ballot cannot be and will not be uniformly applied by

Ohio's Boards of Elections

A. The New Provisional-Ballot Law Does Not Explain Which "Records" Boar·ds Of Elections Should Examine When Determining Whether Provisional Ballots Are Eligible To Be Counted

131. Plaintiffs incorporate the allegations in paragraphs I through 130 as if fully

restated here.

132. The new provisional-ballot law requires each Board of Elections to examine "its records" when determining whether provisional voters are both registered and eligible to vote in that election. Ohio Rev. Code§ 3505.183(B)(l).

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133 The statute does not specify what "records" Boards of Elections should examine, or impose any requirement that every Board of Elections examine the same records.

134. The tem1 "records" is vague, uncertain, and provides insufficient guidance regarding what standards Boards of Elections should and will apply when determining whether provisional ballots are eligible to be counted.

135. The statute does not require each individual Board of Elections to apply the same definition of "records" to all of the provisional ballots that it reviews

136 The statute does not require Boards of Elections to apply the same definition{s) of "records" that are applied by other Boards of Elections.

137. Defendant has failed to provide guidance regarding what records Boards of Elections should examine when determining whether provisional ballots are eligible to be

counted.

138. For all of these reasons, Boards of Elections cannot and will not apply the same standards when examining their records and determining whether provisional ballots are eligible

to be counted.

B.

The New Elections

Provisional-Ballot Law Does Not Explain How Boards Of Should Evaluate "Additional Information" Provided By The

Voter On The Provisional Ballot Affirmation Form

139. Plaintiffs incorporate the allegations in paragraphs I through 138 as if fully

restated here.

140. When determining whether provisional ballots are eligible to be counted, Boards of Elections must examine "any additional infom1ation for determining ballot validity" provided on the Provisional Ballot Affirmation Fom1 Ohio Rev. Code§ 3505. 183(B)(2).

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a)

The Provisional Ballot Affirmation Form requires each voter to provide

his date of birth and the last four digits of his Social Security number.

b)

The Provisional Ballot Affim1ation Form allows, but does not require,

each voter to provide his cunent address, former address, driver's license

number, or copy of one of the required forms of identification.

141, Ohio Revised Code Section 3505J83 does not explain what procedure, if any, Boards of Elections should follow when examining these types of infom1ation on the Provisional Ballot Affirmation Fom1 to "determine[e) ballot validity."
142, The statute does not require Boards of Elections to take affimmtive steps to verify or confim1 provisional voters' identities based on the additional infom1ation provided, or explain how those steps should be taken if they are required,

143, For example, the statute does not explain whether Boards of Elections may, should or may not compare the information provided by the voter with data maintained by another government agency, such as the Ohio Bureau of Motor Vehicles.
144, The statute does not require each individual Board of Elections to apply the same standards to all of the provisional ballots that it reviews.
145, The statute does not require Boards of Elections to apply the same standards that are applied by other Boards of Elections,

146, Defendant has failed to provide guidance regarding what standards Boards of Elections should apply when examining additional information provided by the voter on the Provisional Ballot Affirmation Form,

32

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147. For all of these reasons, Boards of Elections cannot and will not apply the same standards when examining additional information provided by the voter on the Provisional Ballot Affirmation Form and determining whether provisional ballots are eligible to be counted
C. The New Pt·ovisional-Ballot Law Does Not Explain How Boards Of Elections Should Evaluate "Additional Information" Provided By Voters To Boards Of Elections Within Ten Days After Election Day
148. Plaintiffs incorporate the allegations in paragraphs I through 147 as if fully restated here.
149. The same new provisional-ballot law fluther provides that when detem1ining whether a provisional ballot should be counted, the Board of Elections shall examine any additional information that was provided by the voter to the Board of Elections within ten days after Election Day Ohio Rev. Code § 3505.183(B)(2).
150. Ohio Revised Code Section 3505.183 does not explain what procedure, if any, Boards of Elections should follow when examining this additional infom1ation, or impose any requirement that Boards of Elections follow the same procedure and apply the same standards
151. The statute does not require Boards of Elections to take affim1ative steps to verify or confim1 provisional voters' identities based on the additional information provided, or explain how those steps should be taken if they are required.
152. Again, for example, the statute does not explain whether Boards of Elections may, should or may not compare the information provided by the voter with data maintained by another govemment agency, such as the Ohio Bureau of Motor Vehicles.
153. The statute does not require each individual Board of Elections to apply the same standards to all of the provisional ballots that it reviews.
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154 The statute does not require Boards of Elections to apply the same standards that are applied by other Boards of Elections,

155, Defendant has failed to provide guidance regarding what standards Boards of Elections should apply when examining additional information provided by the voter within ten

days after Election Day
156. For all of these reasons, Boards of Elections cannot and will not apply the same standards when examining additional information provided by the voter within ten days after Election Day and detem1ining whether provisional ballots are eligible to be counted.

D.

The New Provisional-Ballot Law Contains Conflicting Provisions

Regarding What Factors Boards Of Elections Determining Whether Provisional Ballots Are

Should Consider When Eligible To Be Counted

157. Plaintiffs incorporate the allegations in paragraphs I through 156 as if fully

restated here, 158. The same new provisional-ballot Jaw contains two sub-sections that purport to
describe the circumstances under which a Board of Elections should count or should not count a provisional ballot. They provide inconsistent guidance on that issue.
159 The first sub-section, Ohio Revised Code Section 3505, 183(B)(3), directs Boards of Elections to count provisional ballots if all of these five factors apply:

a) The voter is properly registered to vote,

b) The voter is eligible to vote in that precinct and election,

c) The voter provided a written affim1ation of his registration and eligibility and his name and signature on the Provisional Ballot Affirmation Fom1,

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d) The voter provided any additional information that he was required to provide within the ten days after Election Day, and

e)

If applicable, a post-election hearing resulted in the voter's inclusion on

the official registration list

160 The second sub-section (Ohio Rev Code§ 35050!83(B)(4)(a)) directs Boards of Elections not to count provisional ballots if any of these eight factors apply:

a) The voter is not qualified to vote,

b) The voter is not properly registered to vote,

c) The voter is not eligible to vote in that precinct or election,

d) The voter did not provide some or all of the information required by the Provisional Ballot Affirmation Form,

e) The voter had already cast a ballot in the same election,

f)

The voter did not provide the additional infom1ation that she was required

to provide to the Board of Elections within ten days after Election Day,

g) If applicable, a post-election hearing did not result in the voter's inclusion on the official registration list, or

h) The voter did not provide one of the required forms of identification, the last four digits of her social security number, or a written affim1ation under penalty of election falsification that she does not have any of the required forms of identification or a social security number.

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Case: 2:06-cv-00896-ALM-TPK Doc #: 2 Filed: 10/24/06 Page: 36 of 52 PAGEID #: 37
16L Boards of Elections that follow the first sub-section will count provisional ballots if they find that the voters who cast them (a) are registered, (b) are eligible, (c) affim1ed their registration and eligibility and provided their names and signatures, (d) provided any required infom1ation within ten days after election, and, (e) if applicable, had a successful result in their post-election hearing. Ohio Rev. Code§ 3505.183(B)(3)
162. By contrast, Boards of Elections that follow the second sub-section will count provisional ballots only ifthey find that they voters who cast them (a) are registered, (b) are eligible, (c) affirmed their registration and eligibility and provided their names and signatures, (d) provided any required information within ten days after election, (e) if applicable, had a successful result in their post-election hearing, a11d also (f) are qualified, (g) did not already cast a ballot in the same election, and (h) provided one of the required fom1s of identification. Ohio Rev. Code§ 3505.183(B)(4)(a).
163 Under the statute, Boards of Elections could either consider only the five factors in Ohio Revised Code Section 3505183(B)(3), or ignore that provision and consider all eight factors in Ohio Revised Code Section 3505.183(B)(4).
164. The Defendant has not issued guidance regarding which of these two conflicting provisions Boards of Elections should follow when deciding whether provisional ballots are eligible to be counted.
165. The statute does not require each individual Boards of Elections to apply the same approach to all of the provisional ballots that it reviews.
166. The statute does not require Boards of Elections to apply the same approach that is applied by other Boards of Elections.
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D. The New Provisional-Ballot Law Allows Boards Of Elections To

Reject Provisional Ballots If They Are "Unable To Determine"

Whether The Voter Is Qualified, Registered And Not Explain What Circumstances Would Justify

Eligible, But Does Such A Conclusion

167. Plaintiffs incorporate the allegations in paragraphs 1 through 166 as if fully

restated here.

168 Ohio Revised Code Section 3505 183(B)(4)(b) allows Boards of Elections to reject and not count provisional ballots ifthey cannot determine any ofthese three factors:

a) Whether the voter is qualified to vote,

b) Whether the voter is properly registered to vote, or

c) Whether the voter is eligible to vote.

169. The statute does not explain what circumstances, ifany, would legitimately prevent Boards of Elections from determining whether a particular voter is qualified, properly registered, or eligible to vote.
170. For example, the statute does not explain whether Boards of Elections would be permitted to reject and not count provisional ballots simply because they find themselves unable-whether due to technical constraints, an insufficient amount of time before the results must be certified, or insufficient manpower-to determine whether some or all provisional voters are qualified, registered or eligible to vote.
171. The Defendant has not issued guidance regarding what circumstances would allow or justify Boards of Elections to conclude that they are unable to determine whether a voter is qualified, registered or eligible to vote.

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172. The statute does not require each individual Board of Elections to apply the same approach to all ofthe provisional ballots that it reviews.
173. The statute does not require Boards of Elections to apply the same approach that is applied by other Boards of Elections.
E. These Vagaries And Inconsistencies In This New Provisional-Ballot Law Will Deprive Voters Of Due Process And The Equal Protection Of The Laws Regarding Their Rights To Have Their Votes Counted
174. Plaintiffs incorporate the allegations in paragraphs 1 through 173 as if fully restated here.
175 The new provisional-ballot law that govems whether provisional ballots shall be counted is vague, confusing, unclear, and inconsistent in at least these respects
176. This new provisional-ballot law cannot and will not be unifom1ly applied by Ohio's Boards of Elections.
177. It is likely that Boards of Elections will treat similarly-situated registered voters across the State of Ohio differently and unequally when determining which provisional ballots are eligible to be counted.
178. In at least some instances this differing treatment will either threaten to deprive or effectively deprive voters, including Plaintiffs' members, of their fundamental right to vote.
COUNT ONE Violation Of 42 U.S.C. § 1983 And The Due Process Clause Of The Fourteenth Amendment To the United States Constitution (Vagueness And Fundamental Unfairness Of The Voter-Identification Laws) 179. Plaintiffs incorporate the allegations in paragraphs 1 through 178 as if fully restated here.
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180. The voter-identification laws in House Bill 3 are confusing, vague, impossible to apply, and in fact are being applied differently by Ohio's Boards of Elections, and therefore will cause the November 2006 election to be conducted in a manner that is fundamentally unfair in violation of the Due Process Clause of the Fourteenth Amendment to the United States
Constitution.
181. The voter-identification laws in House Bill 3, which subject voters to possible criminal penalties, are confusing, vague, and impossible to apply and will have a chilling effect on voters' willingness to exercise their rights to vote, and therefore violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

COUNT TWO Violation Of 42 U.S.C. § 1983 And The Equal Pt·otection Clause Of The Fourteenth Amendment To the United States Constitution
(Unequal Application Of The Voter-Identification Laws)
182. Plaintiffs incorporate the allegations in paragraphs I through 181 as if fully
restated here.
183 The voter-identification laws in House Bill 3 cannot and will not be applied uniformly by Boards of Elections, and therefore violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

COUNT THREE

Undue Burden On The Right To Vote In Violation Of 42 And The Fourteenth Amendment To the United States

U.S.C. § 198.3 Constitution

(Only Election Day Votet·s Must Pt·ovide The Required Identification)

184 Plaintiffs incorporate the allegations in paragraphs 1 through 183 as if fully

restated here

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185. The voter-identification laws in House Bill 3 require voters who vote at polling places on Election Day, but not absentee voters who vote before or on Election Day, to provide one of the required forms of identification, and thereby impose an unequal and undue burden on the fundamental right of registered voters in Ohio to vote that is neitherjustified by nor nanowly tailored to further compelling state interests.
186. This requirement infringes on the rights of Plaintiffs' members to vote on Election Day in violation of the Fourteenth Amendment to the Constitution of the United States,
COUNT FOUR Violation Of 42 U.S.C. § 1983 And The Civil Rights Act Of 1964
(42 U.S.C. §§ 1971(a)(2)(A) and (a)(2)(B)) (Onlv Election Dav Voters Must Provide The Required Identification) 187, Plaintiffs incorporate the allegations in paragraphs 1 through 186 as if fully restated here. 188. The unequal burden imposed on the rights of Plaintiff's members to vote at polling places on Election Day, by requiring them to provide one of the required forms of identification when voters who vote by absentee ballot before or on Election Day are not required to provide one of the required forms of identification, violates the Civil Rights Act of 1964,42 U.S.C. § 1971(a)(2)(A), which provides:
No person acting under color of law shall(A) in determining whether any individual is qualified under State law or laws to vote in any election, apply any standard, practice, or procedure different from the standards, practices, or procedures applied under such law or laws to other individuals within the same county, parish, or similar political subdivision who have been found by State officials to be qualified to vote .
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189. The requirement that Plaintiffs' members provide one of the required forms of identification to cast their vote at a polling place on Election Day, when absentee voters are not required to provide such identification, also violates the Civil Rights Act of 1964,42 US.C.
§ 1971 (a)(2)(B), which provides:

No person acting under color of law shall-

(B) deny the right of any individual to vote in any election because

of an error or omission on any record or paper relating to any

application, registration, or other act requisite to voting, if such

error or omission is not material in determining whether such individual is qualified under State law to vote in such election

....

190 Because the new voter-identification laws allow some voters who do not provide one of the required forms of identification to cast a ballot and have it be counted, the ability to provide this identification is not material in determining an individual's qualification to vote. Therefore, by requiring Plaintiffs' members to provide one of the required forms of identification when voting at a polling place on Election Day, the amended statute violates 42 US C.

§ !97l(a)(2)(B).

COUNT FIVE

Violation Of 42 Fourteenth

U.S.C. § 1983 And The Due Process Clause Of Amendment To the United States Constitution

The

(Voters Who Have ASSN But Not The Required Identification)

191. Plaintiffs incorporate the allegations in paragraphs I through 190 as if fully

restated here. 192. The voter-identification laws in House Bill3 allow five categories of voters who
are unable to produce the required identification to vote by provisional ballot.

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193 These five categories do not include voters, including Plaintiffs' members, who do not have the required identification but do have, and are able and willing to provide, the last four digits of their Social Security numbers.
194. These registered voters are not granted the right to vote on Election Day by either regular ballot or provisional ballot under the new voter-identification laws.
195. The inability of these voters to cast their votes on Election Day will cause the November 2006 election to be conducted in a manner that is fundamentally unfair, in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
COUNT SIX Violation Of 42 U.S.C. § 198.3 And The Equal Protection Clause Of The
Fourteenth Amendment To the United States Constitution (Voters Who Have ASSN But Not The Required Identification) 196 Plaintiffs incorporate the allegations in paragraphs I through 195 as if fully restated here. 197 The voter-identification laws in House Bill.3 allow five categories of voters who are unable to produce the required identification to vote by provisional ballot. 198. These five categories do not include voters, including Plaintiffs' members, who do not have the required identification but do have, and are able and willing to provide, the last four digits of their Social Security numbers. 199, These registered voters are not granted the right to vote on Election Day by either regular ballot or provisional ballot under the new voter-identification laws
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200. This inequality discriminates against these registered voters and unlawfully deprives them oftheir fundamental right to vote in violation of their rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
COUNT SEVEN Violation Of 42 U.S.C. § 1983 And The Civil Rights Act Of 1964
(42 U.S.C. §§ 1971(a)(2)(A) and (a)(2)(B)) (Voters Who Have ASSN Bnt Not The Regnired Identification) 201 Plaintiffs incorporate the allegations in paragraphs I through 200 as if fully restated here. 202. Denying the right to vote on Election Day to Plaintiffs' members who have a Social Security number but do not have the required identification violates the Civil Rights Act of 1964, 42 U.S.C. § 197l(a)(2)(A), which provides:
No person acting under color of law shall(A) in determining whether any individual is qualified under State law or laws to vote in any election, apply any standard, practice, or procedure different from the standards, practices, or procedures applied under such law or laws to other individuals within the same county, parish, or similar political subdivision who have been found by State officials to be qualified to vote .... 203. The denial of the right to vote on Election Day to Plaintiffs' members who have a Social Security number but do not have the required identification violates Section 197l(a)(2)(A) because this category of registered voters cannot vote on Election Day but voters who have the required identification but not with them, or who lack both the required identification and a Social Security number, are permitted to vote on Election Day by provisional ballot
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204. The denial of the right to vote on Election Day to Plaintiffs' members who have a Social Security number but do not have the required identification also violates the Civil Rights Act of 1964, 42 U S.C. § 1971 (a)(2)(B), which provides:
No person acting under color of law shall(B) deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election 205. Because the new voter-identification requirements allow some voters who do not have the required identification to cast a provisional ballot (namely, those voters who also do not have a Social Security number), the existence of this identification is not material in determining an individual's qualification to vote. Therefore, by denying the right to vote on Election Day to Plaintiffs' members who lack the required identification but have a Social Security number, the amended statute violates 42 U.S. C. § 1971 (a)(2)(B)
COUNT EIGHT Violation Of 42 U.S.C. § 1983 And The Eqnal Protection Clause Of The
Fourteenth Amendment To the United States Constitution (Voters Who Have Certain Identification With A Former Address) 206. Plaintiffs incorporate the allegations in paragraphs I through 205 as if fully restated here. 207. The voter-identification requirements in House Bill 3 allow many registered voters to vote without being required to provide proof of their current addresses 208. The voter-identification requirements in House Bill .3 require voters who provide certain forms of identification-namely, utility bills, bank statements, government checks, paychecks or other government documents-to provide proof of their current addresses.
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209. This inequality discriminates against Plaintiffs' members and deprives them of their fundamental right to vote in violation of their rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
COUNT NINE Undue Burden On The Right To Vote In Violation Of 42 U.S.C. § 198.3
And The Fourteenth Amendment To the United States Constitution (Voters Who Have Certain ldentil1cation With A Former Address) 210. Plaintiffs incorporate the allegations in paragraphs I through 209 as if fully restated here. 211. The requirement that some but not all registered voters provide proof of their current addresses imposes an undue burden on the fundamental right ofregistered voters in Ohio to vote that is neitherjustified by nor narrowly tailored to further compelling state interests. 212. This requirement infringes on the right of Plaintiffs' members to vote under the Fourteenth Amendment to the Constitution ofthe United States.
COUNT TEN Violation Of 42 U.S.C. § 198.3 And The Civil Rights Act Of 1964
(42 U.S.C. §§ 1971(a)(2)(A) and (a)(2)(B)) (Voters Who Have Certain Identification With A Former Address) 213. Plaintiffs incorporate the allegations in paragraphs 1 through 212 as ifftllly restated here. 214. The requirement that only some voters, including Plaintiffs' members, provide proof oftheir current addresses violates the Civil Rights Act of 1964,42 U.S.C. § 197l(a)(2)(A), which provides:
No person acting under color of law shall-
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(A) law

in or

determining laws to vote

whether any individual is qualified under State in any election, apply any standard, practice, or

procedure different from the standards, practices, or procedures

applied under such Jaw same county, parish, or

or laws similar

to other political

individuals within the subdivision who have

been

found by State officials to be qualified to vote _

215. The requirement that voters, including Plaintiffs' members, who provide specific types of identification also provide proof of their current addresses, when not all voters are required to provide proof of their current addresses, also violates the Civil Rights Act of 1964,42

U.S C § 1971(a)(2)(B), which provides:

No person acting under color oflaw shall(B) deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State Jaw to vote in such election .
216. Because the new voter-identification Jaws allow some voters who do not provide proof of their current address to cast either a regular or provisional ballot and have it be counted, proof of one's current address is not material in determining an individual's qualification to vote. Therefore, by denying the vote to Plaintiffs' members who cannot provide proofoftheir current addresses when providing specific types of identification, the amended statute violates 42 U.S.C
§ 1971(a)(2)(B).

COUNT ELEVEN Poll Tax In Violation Of 42 U.S.C. § 198.3 And The Twenty-Fonrth And
Fourteenth Amendments To the United States Constitution CVoter·s Who Cannot Otherwise Vote On Election Day)
217 _ Plaintiffs incorporate the allegations in paragraphs I through 216 as if fully

restated here.

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218. There will be candidates for federal office on the November 2006 ballot 219. The requirement that voters, including Plaintiffs' members, who are denied the right to vote on Election Day under the new voter-identification laws, must purchase a stateidentification card and/or birth certificate to be permitted to exercise their right to vote on Election Day, constitutes a poll tax in violation of the Twenty-Fourth and Fourteenth Amendments to the United States Constitution
COUNT TWELVE Violation Of 42 U.S.C. § 1983 And The Due Process Clause Of The Fourteenth Amendment To the United States Constitution (Non-Uniform Application Of The Provisional-Ballot Laws) 220 Plaintiffs incorporate the allegations in paragraphs I through 219 as if fully restated here. 221. The new provisional-ballot laws in House Bill 3 that govern the determination of whether provisional ballots are eligible to be counted are vague and do not provide adequate guidance to Boards of Elections, and so cannot and will not be applied unifom1ly by Ohio's Boards of Elections. 222. The laws in House Bill 3 that govern the counting and eligibility of provisional ballots violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution to the extent that they lead to the application of different standards, methods or procedures across the State of Ohio that will cause the November 2006 election to be conducted in a manner that is fundamentally unfair. 22.3. The laws in House Bill 3 that govern the counting and eligibility of provisional ballots violate the Due Process Clause of the Fourteenth Amendment to the United States
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Constitution to the extent that they lead to the application of different standards, methods or procedures by each individual Board of Elections that will cause the November 2006 election to be conducted in a manner that is fundamentally unfair
224. These unequal standards, methods, and procedures will work a patent and fundamental unfairness on voters, including Plaintiffs' members, in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

COUNT THIRTEEN

Violation Of 42 U.S.C. § 1983 And Of The Fourteenth Amendment To

The Equal the United

PI"Otection Clause States Constitution

(Non-Uniform Application Of The Provisional-Ballot Laws)

225. Plaintiffs incorporate the allegations in paragraphs I through 224 as if fully

restated here.
226. The new provisional-ballot laws in House Bill 3 that govern the determination of whether provisional ballots are eligible to be counted are vague and do not provide adequate guidance to Boards of Elections, and so cannot and will not be applied unifom1ly by Ohio's

Boards of Elections. 227. The laws in House Bill 3 that govern the counting and eligibility of provisional
ballots violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution to the extent that they lead to the application of different standards, methods or
procedures across the State of Ohio 228 The laws in House Bill 3 that govern the counting and eligibility of provisional
ballots violate the Equal Protection Clause of the Fourteenth Amendment to the United States

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Constitution to the extent that they lead to the application of different standards, methods or procedures by each individual Board of Elections<
229< These unequal standards, methods, and procedures will cause the votes of at least some registered voters, including Plaintiffs' members, to be either unduly burdened or improperly denied, diluted or not counted, in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution<
IRREPARABLE HARM/INADEQUATE REMEDY AT LAW 230< Plaintiffs incorporate the allegations in paragraphs 1 through 229 as if fully restated here, 23L The State of Ohio will hold general elections on November 7, 2006 that will be subject to the new voter-identification and provisional-ballot laws identified above< 232< Ohio voters will select candidates for numerous major statewide and federal offices, including Governor, a United States Senator, United States Representatives, Ohio Attomey General, and Ohio Secretary of State, among many other important offices, 23.3, Plaintiffs' members will be irreparably harmed ifthey are chilled fium exercising their right to vote or denied their right to vote, or their right to have their vote counted, either on Election Day or prior to Election Day in absentee voting, and therefore must forfeit their rights as registered voters to vote in this election and subsequent elections
234< Plaintiffs' members cannot be adequately compensated for this harm in an action at law for money damages,,
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235. Given that absentee voting has already begun, Plaintiffs' members will be immediately and irreparably harmed by the denial of their right to vote, or their right to have their vote counted.
WHEREFORE, Plaintiffs respectfully pray as follows: a) The Court enter a temporary restraining order under Fed. R. Civ. P. 65(b) that temporarily restrains and enjoins Defendant from enforcing or applying the voteridentification provisions set forth in House Bill 3 and codified in Ohio Revised Code Sections 3501.01 (AA), 350Ll9, 3505.18, 3505. 18l(A)(2), 3505. 181(A)(3), 3505.181 (A)(4), 3505.181(A)(l2), 3505.181 (A)(\3), 3505. 181 (B)(6), 3505.181 (B)(?), .3505 181 (B)(8)(a), portions of3505. 182, 3505.183(B)(3)(d), 3505.183(B)(4)(a)(v), 3505. 183(B)(4)(a)(vii), 3509.03(E), portions of 3509.04, portions of 3509.05, portions of3509.06(D) and portions of 3509.07 regarding any absentee ballots that have been or will be cast in connection with the November 7, 2006 election, and that requires the Defendant to issue notice of same to all Ohio Boards of Elections; b) The Court enter a declaratory judgment under 28 U.S.C § 2201 declaring that the voter-identification provisions set forth in House Bill 3 and codified in Ohio Revised Code Sections 350L01(AA), 3501.19,3505.18, 3505.181(A)(2), 3505. 181(A)(3), 3505. 181(A)(4), 3505.181(A)(12), 3505.181(A)(13), 3505.18l(B)(6), 3505.18l(B)(7), 3505.181(B){8){a), portions of3505.182, 3505.183(B)(3)(d), 3505. 183(B)(4)(a)(v), .3505. 183(B)(4){a){vii), 3509.03(E), portions o£3509.04, portions of3509.05, portions of 3509.06(D) and portions of
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3509.07 are unconstitutional and in violation of federal law, and null and void, and that requires the Defendant to issue notice of same to all Ohio Boards of Elections; c) The Court enter a preliminary injunction and pennanent injunction that restrains and enjoins Defendant from enforcing or applying the voter-identification provisions set forth in House Bill 3 and codified in Ohio Revised Code Sections 3501.01 (AA), 350119, 3505.18, 3505. 181(A)(2), 3505.18l(A)(3), 3505. 181 (A)(4), 3505.181 (A)(12), 3505.181 (A)(13), 3505.181 (B)(6), 3505.18l(B)(7), 3505J81(B)(8)(a), portions of 3505.182, 3505.183(B)(3)(d), 3505.183(B)(4)( a)(v), 3505 .183(B)(4)(a)(vii), 3509.03(E), portions of 3509.04, portions of 3509.05, portions of 3509.06(D) and portions of 3509.07, and that
requires the Defendant to issue notice of same to all Ohio Boards of Elections; d) The Court enter a declaratory judgment under 28 U.S.C. § 2201 declaring that the
statutory provisions in House Bill 3 that govern the eligibility of provisional ballots to be counted and are codified in Ohio Revised Code Sections 3505 . 181(B)(4) and 3505J83(B) are unconstitutional and in violation of federal law, and that further declares that all Boards of Elections must apply the same standards and procedures when determining whether provisional voters' ballots should be counted, and that further sets forth those standards and procedures, and that requires the Defendant to issue notice of same to all Ohio Boards of Elections; e) Plaintiffs recover their reasonable attorneys' fees and costs; and
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f) Plaintiffs have such other and further relief that the Court deems just and equitable. Respectfully submitted,

----.----::;:::::::"

c.::.:--~

-

Caroline H. Gentry, Trial Atto•..•,""""

Andrew J. Gottman (0071600) PORTER, WRIGHT, MORRIS & ARTHUR LLP

One South Main Street, Suite 1600

Dayton, Ohio 45402

Tel: (937) 449-6748

Fax: (937) 449-6820

cgentry@porterwrightcom

and

Subodh Chandra (0069233) THE CHANDRA LAW FIRM, LLC 2275 Chestnut Hills Drive Cleveland, OH 44106-4602
Tel: (216) 965-6463
Fax: (216) 721-4008 Subodh.Chandra@StanfordAlumni.org

and
H. Ritchey Hollenbaugh (0001072) CARLILE PATCIIEN & MURPHY LLP 366 East Broad Street Columbus, Ohio 43215 Tel: (614) 228-6135 Fax: (614) 221-0216 hrh@cpmlaw.com

Attorneys for Plaintiffs

52

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

NORTHEAST OHIO COALITION

:

FOR THE HOMELESS, et al.,

:

:

Plaintiffs,

:

:

v.

:

:

JENNIFER BRUNNER, in her official

:

capacity as Secretary of State of Ohio,

:

Defendant.

:

___________________________________ :

:

NORTHEAST OHIO COALITION

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FOR THE HOMELESS, et al.,

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Plaintiffs,

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v.

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THE STATE OF OHIO,

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Intervenor-Defendant.

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Case No. C2-06-896
JUDGE ALGENON L. MARBLEY Magistrate Judge Terence P. Kemp

OPINION and ORDER

I. INTRODUCTION

This matter is before the Court on Plaintiffs Northeast Ohio Coalition for the Homeless’

(“NEOCH”) and Service Employees International Union, Local 1199's (“SEIU”) (collectively

“Plaintiffs”) Motion for Attorney’s Fees and Costs (dkt. no. 96). Also before the Court is

Defendants Jennifer Brunner’s, in her official capacity as Ohio Secretary of State, and

Intervenor-Defendant the State of Ohio’s (collectively “Defendants”) 12(B)(1) Motion to

Dismiss (dkt. no. 99) for lack of subject-matter jurisdiction. The Court will first address

Defendants’ Motion to Dismiss and then turn to Plaintiffs’ Motion. For the reasons set forth

below Defendants’ Motion is GRANTED in PART and DENIED in PART and Plaintiffs’ Motion is GRANTED.
II. FACTS A. Background On January 31, 2006 the Ohio General Assembly passed House Bill 3 (“Voter ID Law”), which amended Ohio’s Election Code. Specifically, the bill amended Ohio’s election law to require that voters provide any of several types of identification in order to cast a regular ballot in state and federal elections held in Ohio. The Voter ID Law went into effect in the summer of 2006. Plaintiff NEOCH is a non-profit organization that seeks to empower homeless and at-risk men, women, and children. One of NEOCH’s goals is to work to assure that all homeless people are registered to and actually do vote. Ten percent of NEOCH’s members are homeless people. Plaintiff SEIU is a Columbus, Ohio based affiliate of a national labor union. SEIU engages in voter-registration activities on behalf of its members. Defendant Jennifer Brunner, like former named defendant J. Kenneth Blackwell1, is the Ohio Secretary of State (“Secretary”). The Secretary is the chief election officer of Ohio and is charged with the duty of administering Ohio’s election laws, promulgating directives for the conduct of Ohio elections, and compelling election officers to observe state and federal election laws. Ohio Rev. Code Ann. §§ 3501.04(B), (M). The State of Ohio is an intervenor-defendant in this matter.
1 Following the 2006 General Election, Ohio Secretary of State Jennifer Brunner replaced J. Kenneth Blackwell as the named Defendant in this action.
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B. Procedural History
On October 24, 2006, Plaintiffs filed a thirteen-count complaint under 42 U.S.C. § 1983
against then Ohio Secretary of State J. Kenneth Blackwell. The complaint alleges that several
provisions of the Voter ID Law are unconstitutional and seeks to have the Law declared
unconstitutional and to obtain an order restraining its enforcement preliminarily and
permanently. Specifically, Plaintiffs alleged that:
(1) the Voter ID Law is confusing, vague, impossible to apply, and is being applied differently by Ohio’s Boards of election, causing the November 2006 election to be conducted in a manner that is fundamentally unfair in violation of the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment (Counts One and Two);2
(2) the Voter ID Law imposes an undue and unequal burden on election day voters’ right to vote, in violation of their Fourteenth Amendment Rights and 42 U.S.C. § 1971 (a)(2)(A)-(B), because the Law requires voters who vote at polling places on election day, but not absentee voters, to provide one of the required forms of identification (Counts Three and Four);
(3) the Voter ID Law violates the Fourteenth Amendment Due Process and Equal Protection Clause Rights of voters, and 42 U.S.C. § 1971 (a)(2)(A)-(B), because it prevents voters, including Plaintiffs’ members, who do not have the required identification but who do have a Social Security number from casting regular or provisional ballots on election day, while other voters, including those who lack both the required forms of identification and a Social Security number are permitted to cast provisional ballots on election day (Counts Five, Six, and Seven);
2 More specifically, the Complaint alleges that Ohio Boards of Elections were applying different interpretations of what constitutes acceptable forms of identification as follows: (1) what constitutes a current utility bill, bank statement, government check, paycheck, or other government document under Ohio Rev. Code Ann. § 3505.18(A)(1); (2) what constitutes an “other government document” under Ohio Rev. Code Ann. § 3505.18(A)(1); (3) which of the two numbers on an Ohio driver’s license may be provided by absentee voters under Ohio Rev. Code Ann. § 3509.03(E); (4) whether military identification cards that do not show a current address will be accepted under Ohio Rev. Code Ann. § 3505.18(A)(1); (5) whether photo identification with a voter’s former address will be accepted as a “current and valid photo identification” under Ohio Rev. Code Ann. § 3505.18(A)(1); (5) whether early in-person absentee voters will be required to produce one of the required forms of identification by their Board of Elections.
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(4) the Voter ID Law violates the Fourteenth Amendment Equal Protection Clause Rights of voters (both by treating classes of voters unequally and by unduly burdening the right to vote), and 42 U.S.C. § 1971 (a)(2)(A)-(B), with respect to voters, including Plaintiffs’ members, who have certain identification with a former address but cannot provide proof of their current address because the Law requires that voters who use certain types of identification, (e.g. utility bills or bank statements), to provide proof of their current address, but does not require voters who use other types of identification (e.g. driver’s licenses or state-identification cards) to provide such proof (Counts Eight, Nine, and Ten);
(5) the Voter ID Law constitutes a poll tax in violation of the Twenty-Fourth and Fourteenth Amendments, because it requires voters, including Plaintiffs’ members, to purchase a state-identification card or birth certificate to exercise their right to vote (Count Eleven);
(6) the Voter ID Law violates voters’ Fourteenth Amendment Due Process Clause and Equal Protection Clause Rights because the provisions governing the determination of whether provisional ballots are eligible to be counted, Ohio Rev. Code Ann. §§ 3505.181 (B)(4) and 3505.183 (B), are so vague that they cannot be applied uniformly by Ohio’s Board of Elections and, consequently, will be applied non-uniformly across the state (Counts Twelve and Thirteen).
Just two days after Plaintiffs filed their Complaint, the Secretary of State issued Directive
2006-78 (“Directive”). The goal of the Directive was to ensure that the November 2006 election
was “conducted uniformly throughout the State.” In the Directive, the Secretary defined several
terms used in the Voter ID Law that are relevant to this suit including the terms “current” as it
relates to permissible forms of identification, “government document,” and “driver’s license
number.” The Directive was addressed to “ALL COUNTY BOARDS OF ELECTIONS.”
On October 26, 2006 Plaintiffs were granted a temporary restraining order (“TRO”)
related to provisions of the Voter ID Law dealing with absentee ballots. On October 31, 2006,
the Sixth Circuit stayed the majority of the TRO. Although a hearing on Plaintiffs’ motion for a
preliminary injunction was scheduled, it never occurred.
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Instead, on November 1, 2006, the Court entered a Consent Order negotiated by the parties that applied only to the 2006 election. The Consent Order reiterated the requirements of certain provisions of the Voter ID Law, altered the Secretary of State’s explanation of identification requirements for in-person absentee voters laid out in Directive 2006-78, and defined with minor alterations the terms previously defined by the Secretary in Directive 200678.
Following the 2006 election, Plaintiffs believed that Ohio Boards of Elections (“BOEs”) were improperly counting provisional ballots. Consequently, the parties negotiated an Agreed Enforcement Order, which the Court entered on November 15, 2007. The Agreed Enforcement Order, reiterated the Voter ID Law requirements regarding counting of provisional ballots and the rights of observers to monitor BOEs under the Law.
After an October 2007 mediation conference, the Court granted Plaintiffs leave to request attorney’s fees and costs expended through the November 15, 2006 Agreed Enforcement Order. Plaintiffs’ Motion for Attorney’s Fees and Costs pursuant to 42 U.S.C. §1988(b) and 28 U.S.C. §§1821 and 1920 is now before the Court. Defendants responded with their Motion to Dismiss for lack of subject matter jurisdiction, which is also before the Court.
III. LAW and ANALYSIS A. Defendants’ Motion To Dismiss
1. Standard of Review Where a defendant raises the issue of lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the plaintiff has the burden of proving jurisdiction in order to survive the motion to dismiss. DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir.2004); Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir.1990).
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“[M]otions to dismiss for lack of subject matter jurisdiction fall into two general categories:
facial attacks and factual attacks.” United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994). A
facial attack challenges the sufficiency of a complaint, and, when considering the motion, the
court must view the material allegations in the complaint as true and construe them in the light
most favorable to the nonmoving party. Id. A factual attack is a challenge to the factual existence
of subject matter jurisdiction. Id. In a factual attack “the court may consider evidence outside
the pleadings to resolve factual disputes concerning jurisdiction, and both parties are free to
supplement the record by affidavits.” Nichols v. Muskingum College, 318 F.3d 674, 677 (6th
Cir. 2003). As Defendants’ Motion to Dismiss argues not only that Plaintiffs’ Complaint fails to
demonstrate standing, but also that Plaintiffs have never had standing as a matter of fact and,
furthermore, challenges Plaintiff’s factual showing in support of standing, the Court will treat
Defendants’ Motion as a factual attack.
2. Standing
Defendants contend that Plaintiffs do not have standing to assert their claims.3 The
Plaintiffs argue that they have standing in their own right and that they have organizational
standing to assert the rights of their members.4
3 As a preliminary matter, Defendants contend in their Reply that the Supreme Court’s decision in Crawford v. Marion County Election Bd., 128 S.Ct.1610 (2008), makes clear that Plaintiffs’ constitutional challenges to the Voter ID Law cannot prevail on their merits and, therefore, the Court should dismiss the Complaint. While the Court agrees that Crawford casts considerable doubt on the substantive merits of Plaintiffs’ claims, this argument is not properly raised in Defendants’ Reply brief to a 12(B)(1) motion to dismiss for lack of standing and will not be considered by the Court at this time. Club Italia Soccer & Sports Organization, Inc. v. Charter Twp. Of Shelby, Mich., 470 F.3d 286, 292 (6th Cir. 2006) (standing inquiry must not be conflated with an evaluation of the merits of a claim). 4 Plaintiffs’ discussion of standing was limited to evidence regarding Plaintiff NEOCH. Thus, to the extent that facts relating to Plaintiff SEIU’s standing would have altered the Court’s ruling on standing, that information was not before the Court and could not be considered in its ruling.
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To satisfy the standing requirements of Article III of the Constitution a plaintiff must show: “(1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged act of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). Standing is evaluated based on the facts as they existed at the time the complaint was filed. Cleveland Branch, NAACP v. City of Parma, Ohio, 263 F.3d 513, 524 (6th Cir. 2001). These three requirements come into play whether an organization claims standing based on its own injury or based on injury to its members. See id. at 526-530.
i. Plaintiff NEOCH's Standing To Sue on its Own Behalf An organization has standing to sue on its own behalf if "it has suffered a palpable injury as a result of the defendants' actions." MX Group, Inc. v. City of Covington, 293 F.3d 326, 333 (6th Cir. 2002). A mere interest in a problem, however, is insufficient to confer standing on an organization. Sierra Club v. Morton, 405 U.S. 727, 739 (1972). An organization must establish that it has been injured beyond a mere “setback to the organization's abstract social interests.” Greater Cincinnati Coalition for the Homeless v. City of Cincinnati, 56 F.3d 710, 716 (6th Cir 1995) (internal quotation marks omitted). NEOCH has not done so in this case. Instead, NEOCH asserts that it has standing on its own behalf because the Voter ID Law has "harmed, and will continue to harm, NEOCH's ability to carry out its stated goal of working to 'reduce barriers to homeless people actually voting.'" This is merely a frustration of NEOCH's social interest in having homeless people vote. NEOCH has not demonstrated that it has expended any additional resources to encourage homeless people to vote, or any other palpable injury as a result of Defendants' enforcement of the Voter Id Law and therefore, has failed to
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establish standing to sue on its own behalf. See Greater Cincinnati Coalition for the Homeless, 56 F.3d at 715-16; Harkless v. Blackwell, 467 F.Supp.2d 754, 759-60 (N.D. Ohio 2006) (refusing to find standing where an organization involved in voter registration would likely have conducted its voter registration activities in the absence of defendant's alleged violation of a voter right's statute); Ass'n of Cmty Orgs. for Reform Now v. Fowler, 178 F.3d 350, 359-62 (5th Cir. 1999) (finding that, to prove standing, an organization must show that its voter registration resources were consumed as a result of defendants' alleged violation of a voter registration statute).
ii. Organizational Standing Based on Plaintiffs' Members Plaintiffs next argue that they may assert standing on behalf of NEOCH’s members. An organization "has standing to bring suit on behalf of its members when [1] its members would otherwise have standing to sue in their own right, [2] the interests at stake are germane to the organization's purpose, and [3] neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Laidlaw, 528 U.S. at 180-81. Plaintiffs argue that they have satisfied this test because NEOCH's members have standing to sue, the interests at stake are germane to NEOCH's purpose, and individual participation of NEOCH's members is not required. Defendants challenge all three prongs of the test.
a. NEOCH Members’ Standing An organization’s members have standing to sue in their own right if they satisfy the standing requirements of Article III: injury in fact, traceability, and redressability. See id. Defendants contend that Plaintiffs do not have organizational standing because they have not demonstrated that their members have standing to sue. First, Defendants maintain that the homeless are not members of Plaintiff NEOCH, but rather "patrons that NEOCH attempts to
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assist." Plaintiffs have, however, produced two declarations from Brian Davis, the Executive
Director of NEOCH stating that roughly ten percent of NEOCH members are homeless. They
have also produced the declarations of six homeless individuals who are members of NEOCH.
Defendants have done nothing to rebut this showing. Therefore, the Court finds that, while the
entire homeless population of Ohio may not be de facto members of NEOCH, certain homeless
individuals are members of NEOCH.
Next, Defendants contend that Plaintiffs have not demonstrated that NEOCH members
suffered injury in fact because Plaintiffs have not produced any evidence that homeless
individuals were unable to cast a ballot in the 2006 election or that their ballots were not counted.5 While this is true, the relevant inquiry for standing purposes is whether Plaintiffs’
members faced a “concrete and particularized” risk of “actual or imminent” injury in October of
2006 when the Complaint was filed. Cleveland Branch, NAACP, 263 F.3d at 524. Plaintiff
NEOCH contends that two categories of its homeless members had standing to sue in October of
2006.
The first category is a group of homeless members who did not have any form of
identification required by the Voter ID Law but who did have Social Security numbers.
Plaintiffs submit the October 18, 2006 declarations of four NEOCH members in this category.
5 Defendants place great emphasis on the Sixth Circuit’s ruling in NEOCH v. Blackwell, 467 F.3d 999 (6th Cir. 2006), in which the court overturned portions of the October 26, 2006 TRO granted earlier by this Court. In that ruling, the Sixth Circuit found that Plaintiffs had only made a weak showing of standing. Id. at 1010. However, that court’s analysis was limited only to Plaintiffs’ challenges to the provisions of the Voter ID Law relating to absentee ballots, which this Court agrees Plaintiffs lacked standing to pursue. Id. at 1004, 1010. Moreover, the record on standing at that time consisted solely of the unverified complaint, id. at 1010, whereas this Court has before it the declarations of NEOCH’s executive director and six member voters of NEOCH.
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Each declaration states that the declarant: is homeless; is a United States Citizen; intends to vote in the November 2006 election; does not have any form of identification required by the Voter ID Law; and does have a Social Security card. Plaintiffs argue that these members were suffering a concrete and imminent injury in fact in October 2006 because they lacked the specific forms of identification required by the Voter ID Law and consequently would be unable to cast regular or provisional ballots on election day. Moreover, Plaintiffs contend that if those members had been permitted to cast provisional ballots, the vagueness of the Voter ID laws created a "real possibility of unequal and nonuniform application of the laws."
The second category is a group of homeless members who had at least one form of identification required by the Voter ID Law. Here, Plaintiffs submit the April 2008 declarations of two homeless NEOCH members who state: they were members of the NEOCH in October 2006; they are United States citizens; they voted in the 2006 election; they have at least one form of identification required by the Voter ID Law; and they have a Social Security number. Plaintiffs argue that these members were suffering a concrete and imminent injury in fact in October 2006 because, even though they had the required forms of identification, the BOEs were treating similarly situated absentee voters differently and would inevitably treat similarly situated election day voters differently when applying the Voter ID Law. Also, Plaintiffs contend that if those two members had been required to cast provisional ballots, the vagueness of the Voter ID laws created a "real possibility of unequal and nonuniform application of the laws."
Plaintiffs' showing of member injury is only sufficient to give them standing to assert three of their six challenges to the Voter ID laws. As a threshold matter, injury in fact sufficient to confer standing must be “actual or imminent.” See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Thus, to establish standing, Plaintiffs must show that their member’s risk of
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future injury as a result of Defendants’ enforcement of the Voter ID Law was more than a “real possibility.” Counts Three and Four of Plaintiffs’ Complaint allege that the Voter ID Law imposed an undue burden on election day voters right to vote because only election day voters were required to produce identification to exercise their right to vote. Plaintiffs have demonstrated that NEOCH had members who intended to and actually did vote on election day, inevitably subjecting those members to the challenged identification requirements. Therefore they have demonstrated member injury on those counts.
Similarly, Plaintiffs have demonstrated member injury relating to Counts Eight, Nine, and Ten of their Complaint (“Former Address Counts”). The Former Address Counts are based on Plaintiff’s contention that the Voter ID Law imposed undue burdens on voters who seek to prove their identity with certain forms of identification (e.g. utility bills or bank statements), because the Law requires voters who produce those forms of identification to provide proof of their current address, but does not require voters who use other types of identification (e.g. driver’s licenses or state-identification cards) to provide such proof. Plaintiffs state in their Complaint, and Defendants have not rebutted, that some of their members sought to prove their identity using identification with their former address. Therefore, those members faced an imminent risk of injury in October of 2006.
Finally, Plaintiffs have demonstrated member injury relating to Counts Twelve and Thirteen. Those Counts involve challenges to the Voter ID Law provisions governing whether provisional ballots could be counted. NEOCH has demonstrated that four of its members intended to vote on election day and had no form of identification other than a Social Security number. Under the Voter ID Law, those voters would be required to submit provisional ballots
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due to their lack of other identification. Ohio Rev. Code Ann. §§ 3501.19(A)(3); 3505.18 (A)(2)-(6).
Conversely, Plaintiffs have not shown member injury sufficient to create standing for several of their claims. Counts One and Two of the Complaint (“Vagueness Counts”) assert that the Voter ID Laws are so confusing that they cannot and, in fact, are not being applied uniformly by the BOEs. The Complaint lists six specific ID requirements that Plaintiffs claim were being applied differently by different BOEs: (1) what constitutes a “current” government document or bill; (2) what constitutes an “other government document;” (3) which number on an Ohio driver’s license may be used by absentee voters; (4) whether military identification cards without a current address are acceptable; and (5) whether early in-person absentee voters must produce identification. Plaintiffs’ assertion of member injury under the Vagueness Counts seems to be based solely on their assertion that “[i]n at least some instances this differing treatment will either threaten to deprive or effectively deprive voters, including Plaintiff’s members of their fundamental right to vote.”
Plaintiffs have not, however, identified any of their members who would be affected by the five areas of disparate interpretation of the Voter ID Law, nor have they claimed that any of their members would have attempted to use any of the categories of identification that were alleged to be defined confusingly by the Voter ID Law. Similarly, they have not claimed that any of their members were absentee voters in the 2006. Therefore, they have not demonstrated that any of their member voters was facing imminent injury based on the alleged definitional vagaries of the Voter ID Law.
In Sandusky County Democratic Party v. Blackwell, on which Plaintiffs rely, the Sixth Circuit held that political party and labor organization plaintiffs had standing to challenge
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election procedures in the name of their members, even though they could not identify in advance which members would be denied the right to vote by election worker error on voting day. 387 F.3d 565, 573-74 (6th Cir. 2004). In that case, however, the court believed that it was inevitable that some of the plaintiff’s members would be harmed by mistakes at the polls. Id at 574. Given that one of the plaintiffs in that case was the Ohio Democratic Party, which has thousands of member voters, the court’s finding of inevitable member injury was statistically sensible.
In this case, Plaintiff NEOCH has only demonstrated that six of its homeless members intended to vote in the November 2006 election and, as described above, it has not shown that any of those members intended to use a form of identification that might not be accepted at a certain BOE due to definitional discrepancies.6 Therefore, the Court finds it is far from a statistical inevitability that any of those six members faced concrete and imminent injury based merely on the vagueness of the Voter ID Laws.
Similarly, Plaintiffs have not established member injury-in-fact relating to Counts Five, Six, Seven, and Eleven of their Complaint (“Social Security Number Counts”). The Social Security Number Counts are based on provisions of the Voter ID Laws that Plaintiffs claim prevented voters with no form of required ID other than a Social Security number from casting any type of ballot. Plaintiffs have demonstrated that they had members who had only Social Security numbers and, therefore, argue those members faced imminent and inevitable injury when they attempted to vote.
6 There is no evidence before the Court of the total number of homeless members of NEOCH. Brian Davis’ declaration states only that roughly ten percent of NEOCH’s membership was homeless and that the organization has “helped hundreds of homeless people, including some of its homeless members, register to vote.” (Emphasis added). Therefore the Court has no accurate sense of how many homeless members NEOCH actually had, nor the smaller number of those who were actually voters in the 2006 election. Therefore, the Court must rely only on the six declarations Plaintiffs have put before the Court.
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Defendants correctly point out, however, that under the Voter ID Law voters who had no form of required identification could cast a provisional ballot by providing the last four digits of their Social Security number. Ohio Rev. Code Ann. § 3501.19(A)(3). The Voter ID Law even permitted people who lacked other identification and could not produce their Social Security numbers to cast a provisional ballot. Id. at §§ 3501.19(A)(3); 3505.18 (A)(2)-(6). A provisional ballot would be counted with the same weight as any other vote once the identity of the voter was verified. Id. at § 3505.183. Therefore, Plaintiffs’ members with only a Social Security number faced no risk of imminent injury of being denied the opportunity to cast their vote in October of 2006.
In sum, Plaintiffs have not demonstrated that their members were suffering an injury in fact relating to the Voter ID Law provisions challenged in Counts One, Two, Five, Six, Seven, and Eleven, therefore, they do not have standing to raise those claims. Consequently, Defendants Motion to Dismiss Counts One, Two, Five, Six, Seven, and Eleven is GRANTED.
Plaintiffs’ have demonstrated member injury related to Counts Three, Four, Eight, Nine, Ten, Twelve, and Thirteen of their Complaint. That injury was traceable to Defendants’ enforcement of the Voter ID Law and was likely to be redressed by a favorable decision. Thus, Plaintiffs’ members had standing on those Counts. This is a necessary, but not sufficient, showing to demonstrate organizational standing on those Counts. Plaintiffs must also demonstrate that the interests at stake are germane to the organization's purpose, and that neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Laidlaw, 528 U.S. at 180-81.
b. Germaness
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Defendants claim that NEOCH is merely “dedicated to assisting homeless individuals in finding jobs and shelter from the elements” and is not “designed to stand up for the legal rights of the homeless patrons that visit their facilities.” Plaintiffs, however, have provided sufficient evidence that securing homeless members’ voting rights was germane to NEOCH’s purpose. Plaintiffs have produced NEOCH’s Homeless Advocacy Initiatives for 2005-2010, which describes NEOCH’s organizational goals. One of NEOCH’s Civil Rights Initiatives is to “[w]ork to assure that all homeless people are registered to vote, and reduce barriers to registering and homeless people actually voting.” Furthermore, Brian Davis, the Executive Director of NEOCH, describes in his declaration that NEOCH has helped hundreds of homeless people, including members, register to vote and obtain the necessary identification to register to vote. Therefore, the Court finds that the interests at stake in this litigation are germane to Plaintiff NEOCH’s purpose of promoting and ensuring homeless voting.
c. Necessity of Individual Member Participation Finally, Defendants argue that Plaintiffs do not have organizational standing because “the nature of Plaintiffs’ claim requires the participation and testimony of Plaintiffs’ individual ‘members’.” The Court disagrees. Where, as here, an organization “seeks prospective or injunctive relief for its members” the “individual participation of an organization’s members” is not necessary. Sandusky County Democratic Party, 387 F.3d at 574 (quoting United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 546 (1996)) (internal quotation marks omitted). Plaintiffs have demonstrated all three requirements for organizational standing with respect to Counts Three, Four, Eight, Nine, Ten, Twelve, and Thirteen of their Complaint.
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Therefore Defendants’ Motion to Dismiss for lack of standing is DENIED with respect to those Counts.
B. Plaintiffs’ Motion for Attorney’s Fees and Costs 1. Entitlement to a Fee Award
The Civil Rights Attorney’s Fees Award Act of 1976, 42 U.S.C. § 1988(b), permits a court to award reasonable attorney’s fees to the “prevailing party” in a civil rights action brought under 42 U.S.C. § 1983. A plaintiff is not entitled to any attorney’s fees unless it is a “prevailing party.” Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-92 (1989); see also DiLaura v. Twp. of Ann Arbor, 471 F.3d 666, 670 (6th Cir. 2006). Once it has established prevailing party status, the “degree of the plaintiff’s overall success goes to the reasonableness . . . not to the availability of a fee award.” Garland, 489 U.S. at 793. Unless “special circumstances” exist, a district court must award attorney’s fees to a prevailing party. See, e.g., Berger v. City of Mayfield Heights, 265 F.3d 399, 406 (6th Cir. 2001).
A party qualifies as a “prevailing party” if it has obtained actual relief on the merits of its claim that materially alters the legal relationship between the parties and directly benefits the plaintiff at the time of the judgment. Farrar v. Hobby, 506 U.S. 103, 111-12 (1992). A consent decree may serve as the basis for an award of attorney’s fees. Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 605 (2001); see also Maher v. Gagne, 448 U.S. 122, 129-130 (1980). The crux of the “prevailing party inquiry must be the material alteration of the legal relationship of the parties.” Farrar, 506 U.S. at 111 (quoting Garland, 489 U.S. at 792-93). A court may conclude that a plaintiff is not a prevailing party where the plaintiff’s success on a claim is “purely technical or de minimis.” Garland, 489 U.S. at 792; see also Sutton v. Cleveland Bd. Of Educ., 958 F.2d 1339, 1352 (6th Cir. 1992). Finally,
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if a “party’s change in position is purely voluntary, then there is no prevailing party.” DiLaura,
471 F.3d at 670.
Plaintiffs argue that they are prevailing parties and entitled to attorney’s fees in this case
because they obtained a Consent Order and, later, an Agreed Enforcement Order that enforced
certain provisions of the Consent Order.7 Defendants dispute this, arguing that the Consent
Order did not materially alter the relationship of the parties or confer a benefit to Plaintiffs, as
required to establish prevailing party status, because it merely parroted the language of the Voter
ID Law and Directive 2006-78 without providing additional relief or rights to the Plaintiffs.
According to Plaintiffs, the Consent Order materially altered the relationship between the
parties by: (1) defining terms that the Voter ID Law neglected to define, including which of the
two numbers on an Ohio Driver’s License would be used by BOEs, how “current” a document
had to be to constitute valid identification, and what “other government document” could be
used as identification; and (2) by providing clear guidance to BOEs—where none had existed
before. Plaintiffs contend that this outcome achieved a significant portion of the relief that they
sought because it alleviated voter confusion and ensured fair and equal application of the laws by
providing a uniform set of rules for the BOEs to apply and requiring the BOEs to enforce the
Voter ID Law as written.8
7 Plaintiffs make clear in their brief that they do not seek attorney’s fees and costs based upon the TRO and related proceedings before the Sixth Circuit. 8 Plaintiffs also claim that the Consent Order achieved the relief they sought because it vindicated the rights of absentee voters by reversing a portion of Directive 2006-78 related to the identification that had to be provided by such voters. The Court, however, has found that Plaintiffs did not have standing to assert claims challenging absentee voter provisions because they have not demonstrated that they had absentee-voter-members, see section II.A.2.ii.a. The Court cannot base any attorney’s fees award on claims for which Plaintiffs lacked standing; therefore, arguments related to the effect of the Consent Order on Plaintiffs’ absentee voter provision challenges will not be considered by the Court. See Warth v. Seldin, 422 U.S. 490,
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The Court finds that Plaintiffs are prevailing parties because the Consent Order and
Agreed Enforcement Order worked a material alteration in the legal relationship of the parties.
See Garland, 489 U.S. at 792-93. The Consent Order altered Defendants’ duties under the Voter
ID Law, giving Plaintiffs the right to monitor and secure court enforcement of Defendants’ pre-
existing duties under that Law—a power over Defendants that Plaintiffs did not have previously.
See Garland, 489 U.S. at 791 (holding plaintiffs are prevailing parties if they have “succeeded
on any significant issue in litigation which achieve[d] some of the benefit the parties sought in
bringing suit” (internal quotation marks omitted, alteration in original)). Plaintiffs in fact
exercised this right to secure the Agreed Enforcement Order.
Before the Consent Order, Defendants were free to alter or reverse their directions to the
BOEs in Directive 2006-78, which could have caused or exacerbated the type of voter confusion
Plaintiffs sought to prevent. After the Order, Defendants were required to ensure that BOEs
applied the Voter ID Law as it was interpreted in the Order and Plaintiffs were empowered to
monitor compliance. Moreover, the Agreed Enforcement Order gave certain rights to election
observers that they did not previously have. Specifically, whenever a BOE proposed to reject a
provisional ballot, the Agreed Enforcement Order required BOEs to provide observers with a list
of proposed rejected provisional ballots and the reason for each proposed rejection.9 Moreover,
498 (1975) (standing determines whether the court has power to entertain the suit); Assoc. Gen. Contractors of Tenn., Inc. v. County of Shelby, 5 F.App’x 374, 377 (6th Cir. 2001) (holding plaintiff was not a prevailing party under §1988(b) for claims dismissed for lack of subject matter jurisdiction). Plaintiffs’ citation to Balark v. City of Chicago, 81 F.3d 658 (7th Cir. 1996) to support its claim that the Court can award attorney’s fees even for claims where it does not have jurisdiction is unavailing as that case involved a consent decree vacated on Federal Rule of Civil Procedure 60(b)(5) grounds, not for lack of standing.
9 While not sui generis, this issue has been addressed by the Sixth Circuit in a different factual context. In Dillery v. City of Sandusky, 398 F.3d 562, 565, 569 (6th Cir. 2005), a plaintiff sought attorney’s fees as a prevailing party under the Americans With Disabilities Act (“ADA”)
-18-

Plaintiffs’ success was not, as Defendants argue, so technical or de minimis that prevailing party
status should be denied or that a reasonable fee award would be of a nominal amount. Compare
with Farrar, 506 U.S. at 115-16 (holding that the plaintiff was not entitled to attorney’s fees
despite obtaining prevailing party status because he recovered only $1 in nominal damages).
Plaintiffs’ success, however, is not as broad as they have characterized it. First, the terms
defined in the Consent Order had already been defined, nearly identically, in Directive 2006-
78.10 The Directive was issued nearly a week before the Consent Order was filed. Plaintiffs do
not contend that the Directive was issued as a result of their efforts in this lawsuit.11 The other
portions of the Consent Order paraphrase various portions of the Voter ID Law. Thus, much of
the clarity Plaintiffs claim was provided by the Consent Order had already been provided by the
Directive 2006-78 or the Voter ID Law itself.
2. Reasonable Fee and Cost Amount
When, as in this case, the plaintiff is a prevailing party, the court must determine what
constitutes a reasonable fee award. 42 U.S.C. §1988(b). “The starting point for determining the
amount of a reasonable attorney fee is the ‘lodestar’ amount which is calculated by multiplying
based on the district court’s judgment in her favor on the issue of whether the City violated the ADA with respect to the accessibility of its curbs. The court held that the Plaintiff had not obtained relief from her success on that issue because the district court had already granted injunctive relief on that issue in a previous class action suit. Id. at 569. Therefore, the court held that the plaintiff did not qualify as a prevailing party despite her technical victory. Id.
Unlike Dillery, in this case, obtaining the Consent Order and Agreed Enforcement Order provided significant relief to the Plaintiffs, as discussed above. By comparison, the Dillery defendants were already judicially bound to take specific remedial action based on a prior injunction and the court’s ruling did not impose any additional duties. 10 The difference in definitions between the Consent Order and the Directive is that the definition of “current” is expanded from six months to one year and the definition of “other government document” is explained at greater length. 11 Nor would the Court find that argument convincing given that the Directive was issued just two days after Plaintiffs filed their Complaint.
-19-

the number of hours reasonably expended on the litigation by a reasonable hourly rate.” Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 551 (6th Cir. 2008); see also Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Where, as here, the plaintiff has achieved only partial success, the lodestar amount may be reduced because attorney’s fees are not typically awarded for unsuccessful claims. See Hensley, 461 U.S. at 434-35.
A court may not, however, reduce attorney’s fees based on “a simple ratio of successful claims to claims raised.” DiLaura, 471 F.3d at 672 (quoting Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson County, Tenn., 421 F.3d 417, 423 (6th Cir. 2005)) (internal quotation marks omitted). When a party’s various claims are based on a “common core of facts,” the court should focus on the “overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation” to determine if the lodestar amount should be reduced. Hensley, 461 U.S. at 434-35; Lee v. Javitch, Block & Rathbone, LLP, – F.Supp. 2d –, 2008 WL 2917087, at * 7 (S.D. Ohio July 30, 2008). Plaintiffs have submitted supporting declarations of attorney’s fees and costs that set forth what Plaintiffs contend is a reasonable fee and costs award. Defendants attack Plaintiffs’ calculation as unreasonable. Both Parties have requested a hearing on the amount of fees and costs.
The Court hereby grants the parties’ request. A hearing on the reasonableness of fees and costs will be scheduled by the Court to be held within ninety (90) days of this Order. The Parties are to submit supplemental briefing on what constitutes a reasonable fee and costs award in light of the Court’s ruling in this Opinion. Plaintiffs’ opening motion is to be filed within thirty (30) days of this Order. Defendants’ motion in opposition is to be filed within twenty-one (21) days of Plaintiff’s motion. Any Reply from Plaintiffs must be filed within eleven (11) days of Defendants’ opposition brief.
-20-

IV. CONCLUSION For the foregoing reasons Defendants’ 12(B)(1) Motion to Dismiss (dkt. no. 99) is GRANTED in PART and DENIED in PART. Plaintiffs’ Motion for Attorney’s Fees and Costs (dkt. no. 96) is GRANTED with a reasonable fee award to be determined by hearing. IT IS SO ORDERED.

DATED: September 30, 2008

s/Algenon L. Marbley ALGENON L. MARBLEY United States District Court Judge

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 Case: 2:06-cv-00896-ALM-TPK Doc #: 57 Filed: 11/15/06 Page: 1 of 5 PAGEID #: 1494

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

TilE NORTHEAST OHIO COALITION FOR THE HOMELESS, and SERVICE EMPLOYEES INTERNATIONAL UNION, l"OCAL 1199,
Plaintiffs, vs.
J. KENNETH BLACKWELL, in his official capacity as Secretary of State of Ohio,

Civil Action No. C2 06 896 JUDGE ALGENON L MARBLEY MAGISTRATE JUDGE KEMP

Defendant.

AGREED ENFORCEMENT ORDER

This matter arises under this Cour1's November I, 2006 Consent Order ("Consent

Order") agreed to by the pat1ies. The Consent Order clarified Ohio's statutory voter

identification requirements including what identification voters must show at the polls on

Election Day. Pursuant to this Court's Order, the defendant Secretary of State, J. Kenneth

Blackwell, properly directed the Boards of Elections f(Jr Ohio's 88 counties to comply with the

terms and provisions of the Consent Order. The Secretary of State disseminated the Consent

Order and directions to comply therewith to each of the 88 County Boards of Elections.

Employees of certain Boards of Elections, however, inadver1ently or otherwise tailed to fiJilow

certain Consent Order provisions.

On Election Day, some poll workers incorrectly required voters who presented an Ohio

driver's license or Ohio state identification card with a f(mner address to cast a provisional

ballot. In addition, some poll workers htiled to accept certain f(Jrrns of proper identification

(spccitically, government documents) presented by voters. and thcrctorc, incorrectly required

-I-

Case: 2:06-cv-00896-ALM-TPK Doc #: 57 Filed: 11/15/06 Page: 2 of 5 PAGEID #: 1495
such voters to cast provisional ballots. This Court's Consent Order clarified this identification option by defining "other government document" as any document that has a current address and is issued by an appropriate government entity, and by providing examples of such government entities. Certain forms of identification satisfYing this definition were deemed unsatisfactory by some poll workers, and they incorrectly required voters to cast provisional ballots.
Thus, there are a number of ballots that have been mischaractcrizcd as provisional ballots when, in fact, they should have been cast as regular ballots. In order to remedy this situation, and to ensure that every properly cast vote be counted in the November 2006 Election, the parties agree that the following procedures shall be adopted as they relate to the tabulation of provisional ballots cast in Ohio's RS Counties: (I) Provisional hallots cast by voters who were not permitted to cast a regular ballot solely
because their protlercd identification was a valid Ohio driver's license or Ohio state identification card with a torn1er address shall automatically be counted as regular ballots. Provisional ballots cast by voters who should have been pennittcd to cast a regular ballot because they provided proper identification in the f(lrm of a military identification that shows the voter's name and current address, or a copy of a current utility bill, bank statement, government check, paycheck, or other government document, as set f(Jrth in paragraph 3 of the Consent Order, shall automatically be counted as regular ballots. (2) Provisional ballots that the board finds to satisfy the eight-factor test as outlined in Paragraph 8 of the Consent Order shall be counted.
-2-

Case: 2:06-cv-00896-ALM-TPK Doc #: 57 Filed: 11/15/06 Page: 3 of 5 PAGEID #: 1496
(3) Provisional ballots that the board finds do not satisfy the eight-factor test shall he recorded according to Section 3505.183(C)(l) of the Ohio Revised Code, which states that for each provisional ballot rejected, "the board shall record the name of the provisional voter who cast the ballot, the identification number of the provisional ballot envelope, the names of the election officials who detcnnined the validity of that ballot, the date and time that the determination was made, and the reason that the ballot was not counted."
(4) As provided in O.R.C. 9~ 3505.21 and 3505.183(D), a duly appointed and sworn observer as that tenn is defined in O.R.C. § 3505.21, or a designated substitute appointed to the Board of Elections, may he present at all times that the hoard is determining the eligibility of provisional ballots to be counted and counting those provisional ballots detennined to he eligible. The observer also may inspect the counting of all ballots in the polling place or board of elections until the counting is completed and the tina! returns are certified and signed. Observers shall not interfere or otherwise impede the election officials in the pertonnancc of their duties.
(5) Should a County Board of Elections receive notice ti·01n an observer wishing to exercise the observer's statutory inspection right by reviewing the list of proposed rejected provisional ballots tor voter identification errors, said Board of Elections shall provide a list of the total number of rejected ballots, along with the reasons l(lr each proposed rejection, only in those cases where the proposed rejection is as a result of the application of voter identification provisions of Title 35 of the Ohio Revised Code and this Cout1's November I, 2006 Consent Order. The reason f(lr each proposed rejection should include
-3-

Case: 2:06-cv-00896-ALM-TPK Doc #: 57 Filed: 11/15/06 Page: 4 of 5 PAGEID #: 1497
whether the voter presented any tonn of identification, including the last four digits of the voter's social security numher, the voter's address, the voter's date ofhirth, the voter's Ohio driver's license numher, a military identification that shows the voter's name and current address, or a copy of a current utility bill, bank statement, government check, paycheck, or other government document. (6) At any meeting of the Board of Elections at which the Board intends to vote upon whether the rejected provisional ballots shall be counted, the reviewing observer shall be allowed to object to the director's proposed rejection of any provisional ballot. The Board may consider the objection of the observer before making its final decision regarding the validity of any provisional ballot. (7) The Board of Elections shall then toll ow its norrnal and customary procedures pursuant to Title 35 of the Ohio Revised Code regarding the validity of any provisional ballot. The Board's decision regarding whether a provisional ballot shall be counted shall be tina! except as otherwise provided by Ohio law. Nothing in this Agreed Enf(Jrcement Order shall be construed to extend or to limit any of the time periods outlined in Title 35 of Ohio Revised Code tor tabulation of votes or ofticial or unofticial certification of election results. Nothing in this Agreed En!(Jrccment Order shall be construed to extend or to limit the time by which a voter may return to the Board of Elections for the purposes of providing additional identification pursuant to O.R.C.~3505.181. This Agreed Enforcement Order applies only to the provisional ballot counting process t(Jr the election held November 7, 2006, and shall not be deemed to have any preeedcntial effect in any future election.
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Case: 2:06-cv-00896-ALM-TPK Doc #: 57 Filed: 11/15/06 Page: 5 of 5 PAGEID #: 1498

This Court turthcr Orders that Defendant Secretary of State, J. Kenneth Blackwell, shall forthwith issue a directive to the County Boards of Elections attaching this Agreed Enforcement Order and directing it to be followed by the 88 Ohio Cou ty Boards of Elections.

Date

t Judge A:fg_e!lO!l L. Marbley
-- ------"---------~

APPROVED BY:

Jim Petro Attorney General

/~~~ .;;2- --- '~-,~~

..?'5-_'C.-c=:;_.."""'=---=---~"'==--'---,=~_;:;o,.,"'J

Caroline H. Gentry

__

Porter Wright Morris & Arthur, LLP -----

) /

I I ,/

c

• 1·. . . •

.

Subodh Chandra The Chandra Law Firm LLC

· RitTiard N.cCog! ianese

Dennis J. Concilla

Assistan't Atlorne.v General
Larry H. James

Carlile Patchen & Murphy Allorneys.fiJr Plaintiff.i·

Christina L. Cor!

The Northeast Ohio Coalitionfi;r the l!omeless, el a!.

Crabbe, Brown & James

Attornevs.for Defendant

Sccretarv of'State.!. Kenneth Blackwell

-5-

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

THE NORTHEAST OHIO COALITION FOR THE HOMELESS, et aI.,

Plaintiffs,
VS.

Case No. C2-06-896 Judge Algenon L. Marbley Magistrate Judge Terence P. Kemp

JENNIFER BRUNNER, in her official capacity as Secretary of State of Ohio,

Defendant.

ORDER

This matter is before the Court for consideration of Plaintiffs' Motion for Preliminary

Injunction. During the pendency of this Motion, the Ohio Secretary of State issued Directive 2008-

101. The Plaintiffs and the Secretary of State agree that the Directive resolves the issues in dispute

as to Plaintiffs' Motion for Preliminary Injunction, except issues relating to (1) the effect of poll-

worker error; and (2) the validity of addresses for person without permanent residence. By

agreement of the Plaintiffs and the Secretary of State, the Court ADOPTS and annexes hereafter

Directive 2008-101 as an Order of this Court.

By further agreement of the parties, that portion of Plaintiffs' Motion for Preliminary

Injunction related to questions as to the constitutionality of various Ohio statutes is withdrawn

without prejudice to refiling.

IT IS SO ORDERED.

DATED

~. SARGUS, JR. STATES DISTRICT JUDGE

JENNIFER BRUNNER
OHIO SECRETARY OF STATE

180 EAST SROAO STHff.E~'", I

! F'LUUH

COl.W-113\)S, OdlO 432: 15 USA

TEL: 1-877-767-6446

\ -614-6440649

DIRECI'IVE 2008-101 October 24, 2008
To: ALL COUNTY BOARDS OF ELECTIONS MEMBERS, DIRECTORS, AND DEPUTY DIRECTOR.S
Re: Guidelines for Determining the Validity of Provisional Ballots
This directive is isslied as H mea.ns to settle ongoing litigation nov\' pending in the United Statc'>
Distl'iet Court for the Southern District or Ohio, Case !So. C2:06-0896 and captioned Northeast
Ohio Coalition It)r the Homeless v. Brunner.
This directive provides guidelines for Ohio's bO<1rds of elections in processing and connting provisional bnllots. This includes guidelines on detennining the validity of provisional ballot., under Ohio law and, generally, the limeframes during \'vlIich boards may process provisional ballots to determine t:heir eligibility for counting. This directive complements, but docs not supersede, Directive 2008-81, Guidelines for Provisional Voting.
A. For purposes of this directive, "members of tbe board" means a majority vote of at
least a quorum of the members of the board or eleeliol1s taken at a public meeting,
B. For purposes of this directive, "processing" pmvisiollUJ ballots means:
.. handling provisional ballot.s in provisional bal10t envelopes ("envelopes") as they are C<lst at a board of elections office or other designated site or as they arc returned from prc<.~incls on cleelion night;
• moving or storing provisional ballots at a board of elections office or other designated site;
• reviewing envelopes and affirmatioll statements to initially determine the presumptive eligibility of provisional hallots to be counted;
• sorting provisional bnllots in their envelopes into categories of eligible,
questionable, and ineligihle, and ir a board so states in its policy and procedures,
i.nto subcategories of ineligible; and .. the making by board of electiolls staff of a recommendation to the members of
the board as to the eligibility and/or ineligibility of provisional haUots cast in the COUllty for the election in question.

Directive 2008-101 Guidelines for Determining Validity of Provisional Ballots

Page 2 of 10

c. For purposes of this directive, "counting" provisional ballots means:
• marking the envelope of provisional ballots that the members of the board have determined are not eligible to be counted;
• moving, and storing in their envelopes provisional ballots that the members of the board have determined are not eligible to be counted;
• opening the envelopes of provisional ballots that the members of the board have determined are eligible to be counted;
• removing provisional ballots from their envelopes that the members of the board have determined are eligible to be counted and separating them from their envelopes so as to sever the voter's identity from the ballot, thereby preserving the secrecy of the ballot;
• preparing provisional ballots to be counted for scanning by automatic tabulating equipment;
• scanning provisional ballots; • tabulating votes cast by provisional ballots determined by the board to be eligible
to be counted; and • reporting numbers of provisional votes as part of the board's official canvass of
the election.

II. TIMEFRAME FOR PROCF..sSING PROVISIONAL BALLOTS
Generally speaking, and except as otherwise provided in R.C. 3501.183(E)(2) and in this directive, boards of elections may begin processing provisional ballots beginning the day after an election. Boards may continue to process provisional ballots during the ten (10) days after an election, and may continue to do so after the tenth day, if necessary, until all provisional ballots have been processed. All provisional ballot processing must be completed by the end of the official canvass, which must be completed not later than the twenty-first day after the election.

Ill. DELEGATION OF PROCESSING TO BoARD STAFF
U1timately, the four members of boards of elections must determine the validity of all votes cast in an election and must certify the results of all elections. However, nothing in Ohio law requires that the members of a board of elections must personally, physically complete all tasks associated with preparing for that certification. Thus, boards of elections may, under a policy adopted by the board, delegate the processing and some aspects of counting provisional ballots, as discussed throughout this directive, to board staff. Such processing must be done in bipartisan teams according to the instructions provided in this directive. To the extent consistent with Ohio law and this directive, boards may establish and follow additional policies and procedures for processing provisional ballots.
If a board delegates the processing of provisional ballots, it must first adopt a policy setting forth procedures for the processing of provisional ballots that includes the factors listed in 1. above. Under a board's policy, board staff responsible for processing provisional ballots must make a recommendation to the board as to the eligibility of each provisional ballot cast in the county, either on an individual basis, or as to groups or categories of similarly situated provisional ballots.

Directive 2008-101 Guidelines for Determining Validity of Provisional Ballots

Page 3 OflO

IV. BOARD DETERMINES VALIDITY OF PROVISIONAL BALLOTS
Ultimately, the members of the board (see I.A. above) of each board of elections must determine the eligibility or ineligibllity of all provisional ballots cast within the county in accord with Ohio law and this directive.. Boards may not delegate this task.
Each board of elections must then cause the ballots to be counted by board staff, and must include the tabulation of that count in its official canvass of the election results and, to the extent required, its certification of the election results to the Secretary ofState.
V. GENERAL REMINDERS ON PROCESSING PROVISIONAL BALLOTS IN ENVELOPES
It is imperative that boards remember that R.C. 3505.183(D) provides that no provisional ballots may be counted in a particular county until the board of elections for that county determines the eligibility, pursuant to R.C. 3505.183 and this directive, of ALL provisional ballots cast in that county. This means that the board staff responsible for processing provisional ballots must completely process all provisional ballots and make a recommendation to the board to allow the board to vote on the eligibility of provisional ballots cast before the board or board staff may begin the procedures for counting provisional ballots.
It is also imperative that boards remember that provisional ballots, like all other ballots or other sensitive election materials, must be handled by bipartisan teams and must be stored in a secure location. This office has required boards to implement a system of storage using double lock and key - one key held by Democrats and one key held by Republicans - and provisional ballots must be stored in that environment.
It is also imperative that board members and staff remain cognizant at all times of the importance of maintaining the secrecy of the votes cast by a provisional voter, and act accordingly when opening and removing provisional ballots from their envelopes.
VI. GROUNDS FOR COUNTING OR INVALIDATING PROVISIONAL BALLOTS
Ohio Revised Code ("R.C.") 3505.183 is the primary statutory lens through which boards of elections must view provisional ballots and affirmations in order to determine the eligibility of those provisional ballots for counting. It sets forth the steps through which a board or its staff must go to determine the eligibility of a provisional ballot for counting.
A. Step 1 - Additional Information Required from Voter in Some Cases
R.C. 3505.183(E)(2) provides that boards of elections may not examine the provisional ballot affirmation on the provisional ballot envelope of any provisional ballot for which an election official has indicated the provisional voter must provide additional information to the board of elections in order to ensure that the provisional ballot will count. Thus, checking for this statement by an election official must be the first step in determining a provisional ballot's eligibility to be counted.
1. No additional information required

Directive 2008-101 Guidelines for Determining Validity of Provisional Ballots

Page 4 of 10

If no such statement by an election official appears on the provisional ballot envelope then the board staff responsible for processing provisional ballots may proceed to Step 2.
2. Additional information required
If such a statement by an election official appears on a provisional ballot envelope then the board staff responsible for processing provisional ballots must segregate that ballot and store it, still in its envelope, in accordance with this directive until the provisional voter provides the required additional information.
a) Additional information required during 10 days after election
Pursuant to R.C. 3505.l8l(B)(8), there are only four categories of provisional voters who are required to provide additional information to the board of elections during the ten days after the day of an election in order for their ballots to be counted:
(1) An individual who has but is unable to provide to precinct election officials any of the forms of identification required under R.C. 3505.18(A)(1). and who has a social security number but is unable to provide the last four digits of his or her social security number under R.C. 3505.l8(A)(2);
(2) An individual who is challenged under R.C. 3505.20 and is determined to be ineligible to vote or whose eligibility to vote cannot be determined by election officials
(3) An individual who does not have any of the forms of identification required under RC. 3505.18(A)(1), who cannot provide the last four digits of the individual's social security number under R.C. 3505.l8(A)(2) because the person does not have a social security number, and who declines to execute an affirmation (SOS Form lo-T) under RC. 3505.18(A)(4); and
(4) An individual who has, but declines to provide to precinct election officials, any of the forms of identification required under RC. 3505.18(A)(1), and who has a social security number but declines to provide to the precinct election officials the last four digits of his or her social security number.
b) This section is specific to the aforestated court action and its attempted settlement. Contacting voters to provide additional information during ten days
If a board of elections or board staff determine during the la-day period that a provisional voter falls into one of the four categories listed above, the board must attempt once to contact the voter by telephone, if a telephone number is available, to remind the voter:

Directive 2008-101 Guidelines for Detennining Validity of Provisional Ballots

Pages ofIO

(1) that he or she is required to provide additional information to the board by the tenth day after the election for the provisional ballot to count; and (2) what additional information is required.
If a board of elections does not have a telephone number for a particular voter, it need not conduct an exhaustive search to attempt to locate a telephone number for that voter, but should document any efforts undertaken to contact the voter.
During the first five days after the day of an election a board of elections may communicate the information 'listed in the list immediately above by postcard or letter rather than by telephone.
c) Additional information required at post-election challenge hearing
If a voter's registration is challenged by another Ohio voter under R.e.
3503,24 and the board of elections considering the challenge postpones the hearing until after the day of the election, the voter must vote provisionally at that election and must provide additional information to the board at the hearing, if so requested, in order to ensure that his or her provisional ballot will count.
Upon receipt of the required additional information under this step of this directive, the board staff responsible for processing provisional ballots may proceed to Step 2.
3. Failure to provide additional required information
A provisional ballot that is cast by any voter who is required by Ohio law or this directive to provide additional information to a board of elections cannot be counted unless and until that voter provides the required information,
pursuant to R.e. 3505.181(A)(7). After the board of elections determines that
the required information was not provided, the board staff responsible for processing provisional ballots shall proceed to Step 5.
B. Step 2 - Prelhninary Analysis on Provisional Ballot Eligibility
R.e. 3505.183(B)(I) provides that the first step in determining the eligibility of
provisional ballots to be counted is to determine the following:
a) Whether the person who cast the provisional ballot is registered to vote; b) Whether the person who cast the provisional ballot is eligible to vote in the particular election in question; and c) Whether the person who cast the provisional ballot completed the affirmation on the provisional ballot envelope.

Directive 2008-101 Guidelines for Determining Validity of Provisional Ballots

Page 6 of 10

1. Not Registered or Not Eligible
If the person who cast the provisional ballot is either not registered to vote or is not eligible to vote in the particular election in question (e.g., wrong precinct), then'the board may not count that ballot, and this is pursuant to R.C. 3505.183(B)(4)(a)(i) and (ii).
2. Registered, Eligible, and Affirmation Completed
If the person is properly registered to vote and is eligible to vote in the particular election in question, and the person who cast the provisional ballot completed the affirmation statement on the envelope, then the board staff responsible for processing provisional ballots must proceed to examine the affirmation statement executed by the person who cast the provisional ballot. Pursuant to RC. 3505.183(B)(1)(a), (b), and (c), that affirmation must contain at least the following three items of information:
a) The name and signature of the person who cast the provisional ballot; b) A statement that the person who cast the provisional ballot is a registered voter in the jurisdiction in which he or she cast the provisional ballot; and c) A statement that the person who cast the provisional ballot is eligible to vote in the particular election in which he or she cast the provisional ballot.
3. Registered, Eligible, but No Provisional Ballot Affirmation
If the person is properly registered to vote and is eligible to vote in the particular election in question, but he or she did not complete the affirmation statement on the envelope, the board staff responsible for processing provisional ballots must proceed, pursuant to R.C. 3505.183(B)(1), to determine whether the voter, or an election official at the direction of the voter, recorded the voter's name in a written affirmation. If neither the voter nor an election official, at the voter's direction, did so, then the provisional ballot cannot count, and the board staff responsible for processing provisional ballot shall proceed to step 5.
c. Step 3 - Additional Analysis on Provisional Ballot Eligibility
1. In addition to the information required in Step I, above, and pursuant to RC. 3505.183(B)(2), the board staff responsible for processing provisional ballots must, in determining the eligibility of any provisional ballot to be counted, also examine any information provided by the person who cast the provisional ballot:
a) that appears in the affirmation on the provisional ballot envelope; b) that was made to an election official at the time he or she cast the provisional ballot pursuant to Re. 3505.182; and c) that was made to the board of elections during the ten days after the day of the election.

Directive 2008-101 Guidelines for Determining Validity of Provisional Ballots

Page 7 of 10

2. Additional information often provided by provisional voters includes, but is not limited to, current and former addresses and date of birth. While this information, if provided, must be considered by boards of elections in determining the eligibility of provisional ballots for counting, nothing in Ohio law requires provisional voters to provide this information. Thus, the absence of such information on a provisional ballot affirmation is not sufficient. on its own. to disqualify a provisional ballot.
D. Step 4 - Recommendation to Board on Provisional Ballot Eligibility
During this step. board staff responsible for processing provisional ballots must use the information discussed above, among other things, to determine their recommendation as to the eligibility of particular provisional ballots to be counted.
1. Ballots Eligible to be Counted
Where ALL of the following apply, board staff responsible for processing provisional ballots must recommend to the board that a provisional ballot shall count, and a board of elections shall count the provisional ballot:
a) The individual named on the affirmation is properly registered to vote; b) The individual named on the affirmation is eligible to cast a ballot in the precinct and for the election in which the individual cast the provisional ballot; c) The individual provided the following:
(I) His or her name and signature as the person who cast the provisional ballot; (2) A statement that he or she, as the person who cast the provisional ballot, is a registered voter in the jurisdiction in which he or she cast the provisional ballot; and (3) A statement that he or she, as the person who cast the provisional ballot, is eligible to vote in the particular election in which he or she cast the provisional ballot;
or
(4) His or her name recorded in a written affirmation statement entered either by the individual or at the individual's direction recorded by an election official;
or
(5) A completed affirmation under R.C. 3505.18(B)(4) (SOS Form lo-T).
d) If applicable. the individual has provided additional information to the board of elections as may be required. i.e. because he or she falls into

Directive 2008-101 Guidelines for Detennining Validity of Provisional Ballots

PageS of 10

one of the four categories of provisional voters who must provide additional information to the board of elections during the ten days after the day of an election, and discussed in more detail below; and e) If applicable, the individual has been afforded a hearing conducted under R.C. 3503.24, which has resulted in the inclusion of the provisional voter's name in the official registration list.
2. Ballots Not Eligible to be Counted
If ANY of the following apply, board staff responsible for processing provisional ballots shall recommend to the board that a provisional ballot not be counted, and a board of elections shall neither open nor count the provisional ballot:
a) The individual named on the affirmation is not properly registered to vote; b) The individual named on the affirmation is not eligible to cast a ballot in the precinct or for the election in which the individual cast the provisional ballot; c) The individual did not provide the following:
(1) His or her name and signature as the person who cast the provisional ballot; (2) A statement that he or she, as the person who cast the provisional ballot, is a registered voter in the jurisdiction in which he or she cast the provisional ballot; and (3) A statement that he or she, as the person who cast the provisional ballot, is eligible to vote in the particular election in which he or she cast the provisional ballot;
or
(4) His or her name recorded in a written affirmation statement entered either by the individual or at the individual's direction recorded by an election official;
d) The individual has already cast a ballot, including an absentee ballot, for the election in which he or she cast the provisional ballot; e) If applicable, the individual has not provided additional information to the board of elections as may be required, i.e. because he or she falls into one of the four categories of provisional voters who must provide additional information to the board of elections during the ten days after the day of an election, and discussed in more detail below; and f) If applicable, the individual has been afforded a hearing conducted
under Re. 3503.24, which has resulted in the exclusion ofthe provisional
voter's name in the official registration list. g) The individual failed to provide or execute any of the following:
(1) a current and valid photo identification; (2) a military identification; (3) an original or a copy of any of the following bearing the voter's name and current address:

Directive 2008-101 Guidelines for Determining Validity of Provisional Ballots

Page 9 of 10

(a) utility bill; (b) bank statement; (c) government check; (d) paycheck; or (e) other government document1;
(4) the last four digits of the individual's social security number; or (5) an affirmation under R.C. 3501.18(A)(4) (SOS Form lo-T), or one of the two affirmations already discussed in this directive, above.
E. Step 5 - Disqualification of Provisional Ballots and Retention
If a board of elections finally determines that a provisional ballot cannot be counted for any of the reasons identified in Ohio or this directive, then the board, pursuant to R.C. 3505.183(C){t), shall record:
1. the name of the provisional voter who cast the ballot; 2. the identification number of the provisional ballot envelope, if applicable; 3. the names of the election officials who determined the validity of that ballot; 4. the date and time that the determination was made; and 5. the reason that the ballot was not counted.
The board shall maintain this record for the duration of the retention period that applies to the provisional ballot itself.
Further, if a board of elections finally determines that a provisional ballot cannot be counted for any of the reasons identified in Ohio law or in this directive, that provisional ballot envelope may never be opened, and the board shall not count the votes contained on such provisional ballot. Rather, pursuant to R.C. 3505.183(C)(2), the board shall store that ballot, unopened, for the duration of the retention period applicable to that type of ballot, and shall then destroy that ballot in its envelope. Storage of such provisional ballots shall be made in accordance with the requirements for storage of provisional ballots, generally, as provided in this directive.
VII. ADnmONAL REOUIREMENTS
R.C. 3505.183 does not expressly provide that a board of elections must attempt to match the signature of the person casting a provisional ballot to the signature on fIle for that voter, presumably because the statutory scheme contemplates at least one circumstance where a provisional voter does not have to provide a signature (i.e., Step 4, Ballots eligible to be counted, 3. d, above). However, signature matching has long been a hallmark of election security. is explicitly provided for with respect to other types of ballots under Ohio law, and is a basis for
I Ohio law provides that notices of election mailed by boards of elections pursuant to R.C. 3501.19. and voter registration notices mailed by boards of elections pursuant to Re. 3503.19 are not valid "other government documents" for voter ID purposes.

Directive 2008-101 Guidelines for Determining Validity of Provision" [ BaBots

Page 10 of 10

declion officials to c.hallenge the right of a perSOll to cast a ballot under Ohio law. As such, when a signature is provided by a provisional voter, boards of elections should, in verifYing the identity of that provisional voter, attempt to match the signature with the signature on file for the voter in question.
Boards of election should bear in mind in doing so, though, that signatures do tend to change over time, thDt there are people v,'ho do not sign their name identically every time they sign their name, and that, purswmt to R.C. 3501.05(AA), voters have the right to update their signatures \'\'1th boards of elections using 80S Form 260.
Very recently, the Supreme Court of Ohio provided, in Slate ex ref. 11\1yles v. Brunner', that iu the absence of uny evidence of fraud, unduly technical interpretations that impede the public policy favoring frce, competitive elc(tions must he avoided. Thus, hoards of elections should keep in mind the concerns raised in the immediately foregoing paragraph when matching signatures. Boards shmild ensure that their prinuuy concern is aehieving confIdence in the identity of the voter casting the provisiolUll ballot rather than ensuring that every loop and line in a signature precisely and exactly matches the signature on file for the voter.

VIII. OBSEln'lmS
R.c' 3505.183(D) provides that observers, as appointed pursuant to RC. 3505.21, may be present at all times that the board is determining the eligibility of provisional ballots to he counted und counting those provisional baUots determined to be eligible.
That statute further provides that no person shall recklessly disclose the count or any portion of the count of provisional ballots in such a manner as to jeopardize the secrecy of any individual ballot. By its plain language, this prohibiUon applies both to election offici~lls and observcrs, as ,vel! as others.
If you have any questions abollt this directive or its implementation p1ease contact the elections attorney in this office a'>signcd to assist your county board of elections.
Sincerely,

.Jennifer Brunner

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

THE NORTHEAST OHIO COALITION FOR THE HOMELESS, et ai.,
Plaintiffs,
v.
JENNIFER BRUNNER, in her official capacity as Secretary of State of Ohio,
Defendant.

CASE NO. C2-06-896 JUDGE ALGENON L. MARBLEY MAGISTRATE JUDGE TERENCE P. KEMP

ORDER This matter is before the Court on Plaintiffs' Motion for a Preliminary Injunction. The Court has carefully considered the parties' submissions in support of and opposing the preliminary injunction, the oral arguments by counsel, evidence presented by the parties, and the relevant statutory and case law. On October 24,2008, this Court issued an Order adopting the Secretary of State's Directive 2008-101. The Court's October 24,2008 Order, however, did not resolve the parties' disputes regarding the effect of poll worker error and the validity of addresses for persons without permanent addresses. This Order is based upon the agreement of the Plaintiffs and the Secretary of State and addresses these two issues.

Poll worker Error Consistent with this Court's October 24,2008 Order and Directive 2008-101, an
eligible voter casting a provisional ballot should not be disenfranchised because of poll worker error in processing a provisional ballot.
The expedited discovery taken by Plaintiffs has revealed that some county boards of elections do not currently count a provisional ballot if the poll worker, for unknown reasons, has not signed the provisional ballot. The failure of a poll worker to sign a provisional ballot, standing alone, does not constitute a valid reason to reject a provisional ballot.
In addition, no provisional ballot cast by an eligible elector should be rejected because ofa poll worker's failure to comply with duties mandated by RC. 3505.181, which governs the procedure for casting a provisional ballot.
Accordingly, the Secretary of State is hereby ORDERED to instruct the County Boards of Election that provisional ballots may not be rejected for reasons that are attributable to poll worker error, including a poll worker's failure to sign a provisional ballot envelope or failure to comply with any duty mandated by RC. 3505.181. Addresses for Persons Without Permanent Addresses
Similarly, some discovery in this case indicated that at least one county might reject provisional ballots if a person uses their actual residence location ifthat location is not a building. Pursuant to Advisory 2008-25 and RC. 3503.02(1), if a person does not have a fixed place of habitation, the shelter or other place where the person intends to return shall be deemed his residence for purposes of voting.
2

Accordingly, the Secretary of State is hereby ORDERED to instruct the County Boards of Elections that provisional ballots may not be rejected for failing to list a building address on the provisional ballot envelope if the voter resides at a location that does not have an address.
IT IS SO ORDERED.

DATED

. SARGUS, JR. ATES DISTRICT JUDGE

3

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

NORTHEAST OHIO COALITION

:

FOR THE HOMELESS, et al.,

:

:

Plaintiffs,

:

:

v.

:

:

OHIO DEMOCRATIC PARTY,

:

:

Intervenor-Plaintiff,

:

:

v.

:

:

JENNIFER BRUNNER, in her official

:

capacity as Secretary of State of Ohio,

:

Defendant.

:

___________________________________ :

:

NORTHEAST OHIO COALITION

:

FOR THE HOMELESS, et al.,

:

:

Plaintiffs,

:

:

v.

:

:

THE STATE OF OHIO,

:

:

Intervenor-Defendant.

:

:
Case No. C2-06-896
JUDGE ALGENON L. MARBLEY Magistrate Judge Terence P. Kemp

ORDER

Pursuant to Federal Rule of Civil Procedure 15(d), Plaintiffs Northeast Ohio Coalition for

the Homeless’ and Service Employees International Union, Local 1199's (collectively

“Plaintiffs”) have moved for leave to file a supplemental complaint (no. 120).1 Defendant

1 Plaintiffs previously motioned for leave to file a supplemental complaint on October 14, 2008 (no. 110), however that request was replaced by Plaintiffs “Revised Motion” for leave

Secretary of State Jennifer Brunner and Intervenor-defendant the State of Ohio oppose the motion. After reviewing the briefs and considering the arguments of all parties, the Court GRANTS Plaintiffs’ Revised Motion for Leave to File Instanter a Supplemental Complaint (no 120).
Also before the Court is the Ohio Democratic Party’s (“ODP”) Motion to Intervene (no. 148) filed on November 4, 2008. Based upon the oral arguments of counsel, the fact that Defendant does not oppose said Motion, and for the reasons set forth on the record, the Court finds ODP’s motion well taken and hereby grants same. The Ohio Democratic Party’s Motion to Intervene is GRANTED.
IT IS SO ORDERED.

DATE: November 5, 2008

s/Algenon L. Marbley ALGENON L. MARBLEY United States District Court Judge

to file a supplemental complaint (no. 120) referenced above, on October 17, 2008. Therefore, Plaintiff’s earlier request (no. 110) is now MOOT.
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 Case: 2:06-cv-00896-ALM-TPK Doc #: 149 Filed: 11/04/08 Page: 1 of 5 PAGEID #: 4384

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

NORTHEAST OHIO COALITION FOR THE HOMELESS, et al.,
Plaintiff, OHIO DEMOCRATIC PARTY,
Plaintiff-Intervenor,
v. JENNIFER BRUNNER, in her official capacity as Secretary of State of Ohio,
Defendant. NORTHEAST OHIO COALITION FOR THE HOMELESS, et al.,
Plaintiff, v. THE STATE OF OHIO,
Intervenor-Defendant.

Case No. C2-06-896
Judge Algenon L. Marbley Magistrate Judge Terence P. Kemp

COMPLAINT IN INTERVENTION OF OHIO DEMOCRATIC PARTY SEEKING DECLARATORY AND INJUNCTIVE RELIEF
Plaintiff-Intervenor Ohio Democratic Party, for its complaint seeking declaratory and injunctive relief against Defendant, allege as follows:
PRELIMINARY STATEMENT 1. In order to ensure the fair and equal counting of provisional ballots pursuant to its prior order in this case, this Court must take action.
PARTIES 2. Plaintiff-Intervenor Ohio Democratic Party is a political party.

Case: 2:06-cv-00896-ALM-TPK Doc #: 149 Filed: 11/04/08 Page: 2 of 5 PAGEID #: 4385
3. Defendant Jennifer Brunner is the Secretary of State of Ohio. In that capacity, she is Ohio’s chief election officer and is responsible for administering all statewide elections, including those for federal office. Among other duties, Defendant Brunner appoints all members of local boards of elections to serve as her representatives; issues instructions by directives and advisories to members of the boards as to the proper methods of conducting elections; prepares rules and instructions for the registration of voters, maintenance of the rolls, and conduct of elections; determines and prescribes the forms of ballots and the forms of all blanks, cards of instructions, pollbooks, tally sheets, certificates of election, and forms and blanks required by law for use by candidates, committees, and boards; compels the observance by election officers in the several counties of the requirements of the election laws; and oversees the canvassing of election results and totals and announces election results. Defendant Brunner is sued in her official capacity.
JURISDICTION AND VENUE 4. This case is brought under 42 U.S.C. § 1983. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343(a)(4). Plaintiffs’ request for declaratory and injunctive relief is authorized by 28 U.S.C. §§ 2201 and 2202. 5. Venue is proper in this district pursuant to 28 U.S.C. § 1391, because a substantial part of the events or omissions giving rise to the claim occurred in this judicial district. 6. On November 4, 2008, Ohio held its general election, at which voters voted for presidential electors, among other offices. At that election, thousands of “provisional” ballots were cast. 7. The Help America Vote Act of 2002 (“HAVA”), 42 U.S.C. § 15301 et seq., requires that several categories of voters whose eligibility to vote is in question—for example,
2

Case: 2:06-cv-00896-ALM-TPK Doc #: 149 Filed: 11/04/08 Page: 3 of 5 PAGEID #: 4386
voters who arrive at the polls believing that they are registered but whose names do not appear on the precinct election register—must be permitted to cast a provisional ballot rather than being turned away from the polls. The voter’s eligibility is later verified by appropriate election officials, and if those officials determine that the voter is in fact qualified to vote, his or her ballot will be counted.
8. Under Ohio law and the Secretary of State’s directives, when casting a provisional ballot, the voter must fill out two documents: the ballot itself and an affidavit attesting that the voter is registered to vote in the jurisdiction and eligible to vote in the election. The affidavit is contained on the outside of an envelope; the ballot itself is placed inside the affidavit envelope. The affidavit envelopes containing provisional ballots are then transmitted to the county election boards, who verify whether the provisional voter is in fact eligible and entitled to vote. If the provisional ballot is verified, it is removed from its envelope and counted.
9. On October 24, 2008, the Secretary of State of Ohio promulgated Directive No. 2008-101, which provided guidance regarding the verification of provisional ballots and addressed whether particular provisional ballots are eligible to be counted.
10. Also on October 24, 2008, this Court issued an order adopting Directive No. 2008-101 as an order of the court.
11. There is a risk that as a result of the amended complaint filed today in Ohio Republican Party v. Brunner, 2:08-cv-913 (S.D. Ohio), the Secretary may not follow this Court’s order regarding the counting of provisional ballots, resulting in immediate and irreparable harm to the Ohio Democratic Party.
12. This Court should act now to preserve and enforce its prior order.
3

Case: 2:06-cv-00896-ALM-TPK Doc #: 149 Filed: 11/04/08 Page: 4 of 5 PAGEID #: 4387
PRAYER FOR RELIEF WHEREFORE, Plaintiff-Intervenor seeks the following relief: A. A declaration that the standards for identifying the provisional ballots to be counted must be consistent with this Court’s October 24, 2008 Order adopting Secretary of State’s Directive 2008-101; and B. A temporary, preliminary, and permanent injunction requiring the Secretary of State to issue a directive to enforce this Court’s October 24, 2008 order regarding the processing and tabulation of provisional ballots. C. Such other and further relief as this Court may deem necessary or proper. Dated: November 4, 2008
Respectfully submitted, s/ Donald J. McTigue
__________ Donald J. McTigue (OH 0022849), Trial Counsel Mark A. McGinnis (OH 0076275) MCTIGUE LAW GROUP 550 East Walnut Street Columbus, OH 43215 Tel: (614) 263-7000 Fax: (614) 263-7078 mctiguelaw@rrohio.com Counsel for Proposed Intervenor Ohio Democratic Party
4

Case: 2:06-cv-00896-ALM-TPK Doc #: 149 Filed: 11/04/08 Page: 5 of 5 PAGEID #: 4388
VERIFICATION I am a citizen of the United States and a resident of the State of Ohio and counsel for the Plaintiff-Intervenors in this action. I have read the foregoing Verified Complaint for Declaratory and Injunctive Relief and declare under penalty of perjury under the laws of the United States of America that the foregoing factual averments are true and correct to the best of my knowledge and belief.
s/ DONALD J. McTIGUE _______________________________ Donald J. McTigue (OH 0022849) Counsel for the Plaintiff-Intervenor
CERTIFICATE OF SERVICE This is to certify a copy of the foregoing was served upon all counsel of record by means of the Court’s electronic filing system on this 4th day of November, 2008.
/s Mark A. McGinnis Mark A. McGinnis (OH 0076275) Attorney at Law

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

NORTHEAST OHIO COALITION

:

FOR THE HOMELESS, et al.,

:

:

Plaintiffs,

:

:

v.

:

:

JENNIFER BRUNNER, in her official

:

capacity as Secretary of State of Ohio,

:

Defendant.

:

___________________________________ :

:

NORTHEAST OHIO COALITION

:

FOR THE HOMELESS, et al.,

:

:

Plaintiffs,

:

:

v.

:

:

THE STATE OF OHIO,

:

:

Intervenor-Defendant.

:

:
Case No. C2-06-896
JUDGE ALGENON L. MARBLEY Magistrate Judge Terence P. Kemp

OPINION & ORDER

I. INTRODUCTION

This matter is before the Court on Plaintiffs Northeast Ohio Coalition for the Homeless’

(“NEOCH”) and Service Employees International Union, Local 1199's (“SEIU”) (collectively

“Plaintiffs”) First and Second Motions for Attorney’s Fees and Costs (Doc. Nos. 96, 176, 179).

Also before the Court are Defendants Jennifer Brunner’s and Intervenor-Defendant the State of

Ohio’s (collectively “Defendants”) and Plaintiffs’ cross-motions for reconsideration of the

September 30, 2008 Opinion and Order dismissing Counts One and Two of Plaintiffs’

Complaint. (Doc. Nos. 183, 191.) For the reasons set forth below Plaintiffs’ and Defendants’

Motions for Reconsideration are DENIED. This Court GRANTS Plaintiffs Motion for Attorney Fees and Costs and AWARDS $401,905.50 in attorneys’ fees and $29,468.55 in costs and expenses, for a total of $431,374.05.
II. FACTS A. Background This case has a long and eventful history before this Court, stretching back to the November 2006 election season. On January 31, 2006, the Ohio General Assembly amended Ohio’s Election Code to require that voters provide one of several types of identification in order to cast a regular ballot in state and federal elections held in Ohio (“Voter ID Law”). On October 24, 2006, Plaintiffs filed a thirteen-count complaint under 42 U.S.C. § 1983 against then Ohio Secretary of State J. Kenneth Blackwell challenging the constitutionality of several provisions of the Voter ID Law. 1. Fall 2006 Election Season Litigation During the fall of 2006, the Plaintiffs sought a temporary restraining order1 and a preliminary injunction relating to Defendants’ enforcement of certain provisions of the Voter ID Law. That litigation resulted in the Court’s entry of a Consent Order negotiated by the parties that applied to the 2006 election. Following the 2006 election, Plaintiffs believed that Ohio Boards of Elections (“BOEs”) were improperly counting provisional ballots. Consequently, the parties negotiated an Agreed Enforcement Order, which the Court entered on November 15, 2007. 2. September 30, 2008 Opinion & Order
1 On October 26, 2006 Plaintiffs were granted a temporary restraining order (“TRO”) by this Court, the majority of which was stayed by an October 31, 2006 order of the the Sixth Circuit.
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The Court granted Plaintiffs leave to request attorney’s fees and costs expended during the litigation of the 2006 Consent Order and Agreed Enforcement Order (Collectively “2006 Orders”). Accordingly, Plaintiffs filed their First Motion for Attorneys fees on January 4, 2008. On February 27, 2008, Defendants responded with a Motion to Dismiss for lack of subject matter jurisdiction and in opposition to the fees motion. Defendants argued that Plaintiffs lacked standing to challenge the constitutionality of the Voter ID Law and that Plaintiffs were not prevailing parties and thus not entitled to attorneys fees with respect to the 2006 Orders. Following a thorough review of the briefs, the Court dismissed six of Plaintiffs thirteen claims for lack of standing, but granted Plaintiffs’ request for attorneys’ fees and costs by an Opinion and Order dated September 30, 2008. Ne. Ohio Coal. for the Homeless v. Brunner, No. 2-06896, 2008 WL 4449514, at *5-8 (S.D. Ohio Sept. 30, 2008).
In the September 30, 2008 Opinion, the Court held that Plaintiffs’ lacked standing to bring, inter alia, Counts One and Two of their Complaint. Id. at *6-7. The Court also held that Plaintiffs were prevailing parties with respect to the 2006 Orders and were, consequently, entitled to attorney’s fees and costs. Id. at *9-10. The Court reserved for a subsequent hearing the issue of what constituted reasonable fees and costs given the degree of success obtained by the Plaintiffs. Id. at * 10. The Court requested supplemental briefing on the reasonableness of fees. The Plaintiffs did so on January 20, 2009 and Defendants did so on February 27, 2009.
Now both Plaintiffs and Defendants move for reconsideration of the September 30, 2008 Opinion. Those motions are now before the Court.
3. Fall 2008 Election Season Litigation This case erupted into activity again during the Fall 2008 Election season. In October 2008, Plaintiffs filed a motion for a preliminary injunction seeking to require the Ohio BOEs to
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apply uniform procedures for counting provisional ballots. As a result of the parties negotiations regarding the preliminary injunction motion, the Court entered two orders (collectively “2008 Orders”). The October 24, 2008 Order set forth procedures that would be used in the counting and processing of provisional ballots. Similarly, an October 27, 2008 Order determined that provisional ballots cast by individuals who did not live in buildings would be counted and determined that provisional ballots could not be invalidated due to poll worker error.
On January 20, 2008, Plaintiffs filed their Second motion for Attorneys fees. In that motion, Plaintiffs claim that they are prevailing parties with respect to the 2008 Orders and are entitled to attorney’s fees and costs. Defendants oppose. On July 22, 2009, this Court held a hearing on Plaintiffs first and second motions for attorneys fees. Those motions are also before the Court.
III. LEGAL STANDARDS A. Motions to Reconsider The Federal Rules do not expressly provide for “Motions to Reconsider.” Rodriguez v. Tennessee Laborers Health & Welfare Fund, 89 F.App’x 949, 959 (6th Cir. 2004). Nevertheless, “[d]istrict courts have authority both under common law and [Federal Rule of Civil Procedure] 54(b) to reconsider interlocutory orders and to reopen any part of a case before entry of final judgment.” Id. Motions for reconsideration serve a limited function. Generally, a motion for reconsideration is only warranted when there is: (1) an intervening change of controlling law; (2) new evidence available; or (3) a need to correct a clear error or prevent manifest injustice. Id. Motions for reconsideration are not intended to re-litigate issues previously considered by the Court or to present evidence that could have been raised earlier. See J.P. v. Taft, No. C2-04-692, 2006 WL 689091, at *13 (S.D. Ohio Mar. 15, 2006).
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B. Motions for Attorneys Fees & Costs The Civil Rights Attorney’s Fees Award Act of 1976, 42 U.S.C. § 1988(b), permits a court to award reasonable attorney’s fees to the “prevailing party” in a civil rights action brought under 42 U.S.C. § 1983. A plaintiff is not entitled to any attorney’s fees unless it is a “prevailing party.” Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-92 (1989); see also DiLaura v. Twp. of Ann Arbor, 471 F.3d 666, 670 (6th Cir. 2006). Once it has established prevailing party status, the “degree of the plaintiff’s overall success goes to the reasonableness . . . not to the availability of a fee award.” Garland, 489 U.S. at 793.
IV. ANALYSIS A. Defendants’ Motion for Reconsideration Defendants do not assert any change in controlling law or new evidence in support of their motion to reconsider the September 30, 2008 Order. Instead, Defendants argue that the Court’s determination that Plaintiffs were prevailing parties with respect to the 2006 Orders was clear error. Defendants find no fault with the Court’s definition of what constitutes a prevailing party with respect to a motion for attorney’s fees. To recover attorneys’ fees as a prevailing party a party must show that it has obtained relief on the merits of its claim, including relief in the form of a consent decree or settlement, that materially alters the legal relationship between the parties and directly benefits the plaintiff at the time of the judgement.” Farrar v. Hobby, 506 U.S. 103, 111-13 (1992); Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 605 (2001). Defendants claim three errors in the Court’s application of that standard to the facts of this case: the first and second challenge the Court’s conclusion that the November 1, 2006 Consent Order changed the legal relationship between the parties, and the third asserts that the
-5-

Agreed Enforcement Order did not directly benefit the Plaintiffs. Plaintiffs respond that no errors of law were committed and that Defendants’ merely re-hashes the arguments they presented in opposition to Plaintiffs’ first motion for attorney’s fees, which the Court considered and rejected.
Defendants argue that Plaintiffs are not entitled to prevailing party status based on the November 1, 2006 Consent Order because that Order did not change the legal relationship between the parties. According to Defendants, the content of the 2006 Consent Order merely restated the requirements of the Ohio Revised Code and, therefore, did not change the relationship between the parties. The Court notes that this is the exact argument that Defendants’ raised in their opposition to Plaintiffs first motion for attorneys’ fees (doc. No xx 13). Beyond restating their rejected arguments, Defendants do not produce any additional authority suggesting that the Court’s resolution of this issue is precluded by the law. The Court has already considered and rejected defendants’ argument, and the fact that Defendants continue to disagree with that ruling does not render the ruling legally erroneous.
Defendants also take issue with the Court’s finding that the 2006 Consent Order changed the relationship between the parties because it prevented the Secretary from altering or rescinding Directive 2006-78. Defendants posit that because Directive 2006-78 “merely restated the Ohio Revised Code” Defendants power to rescind the Directive would have been a hollow gesture even without the 2006 Consent Order. (Defs.’ Reply Br. 2.) That argument, however, misrepresents the content of Directive 2006-78 which not only restated the requirements of the Ohio Revised Code but also, as the Court pointed out in its September 30, 2008 Order, defined terms which were not defined by the Code. Those definitions could have freely been altered by subsequent pre-election directives absent the Consent Order. Consequently, the 2006 Consent
-6-

Order provided Plaintiffs with at least some of the clarity/uniformity they sought in filing suit. Moreover, as the 2006 Consent Order also defined some terms differently and more expansively than Directive 2006-78, it further changed the relationship between the parties and conferred a benefit on the plaintiffs. (See September 30, 2008 Order 19 n. 10.)
Next, Defendants claim the Court erred in finding that the 2006 Consent Order changed the relationship between the parties by effectively empowering Plaintiffs to monitor compliance with Directive 2006-78 and the Voter ID Law. Defendants’ point out that the 2006 Consent Order says nothing about “observers or enforcement” and that Plaintiffs were already able to obtain judicial review of questionable ballot handling, presumably by filing a new complaint. (Id. at 2.) This argument misconstrues the Courts meaning. Clearly, the 2006 Consent Order did not make Plaintiffs official election “observers” as that term is defined under the Ohio Revised Code. Instead, the existence of an enforceable Consent Order gave the Plaintiffs an expedited route for challenging Defendants ballot handling practice. The ability to bind Defendants’ to the definitions of statutory terms and procedures negotiated between the parties in securing the 2006 Consent Order through the means of an expedited enforcement procedure was a power over Defendants which Plaintiffs did not previously have.
Finally, Defendants argue that the Court erred by finding that the Agreed Enforcement Order altered the legal relationship between the parties. In the September 30, 2008 Opinion, the Court found that the Agreed Enforcement Order expanded the powers of election observers by permitting them to object to and gather information on any provisional ballots that the BOEs proposed to reject. Defendants admit that the Enforcement Order changed the law regarding observers powers but claim that this alteration in the law was insufficient to work a change in the relationship between the parties because Plaintiffs themselves were not “observers” under the
-7-

statute and therefore the expanded scope of observer powers did not directly benefit the Plaintiffs. That argument misconstrues the nature of relief that Plaintiffs were seeking. Plaintiffs main concern when seeking the Agreed Enforcement Order was to ensure that provisional ballots were being counted or rejected uniformly. Consequently, the Agreed Enforcement Order directly benefitted Plaintiffs by providing them with additional procedural safeguards, in the form of third party observers with the ability thoroughly to review and object to the rejection of ballots, to ensure that provisional ballots were properly counted.
All of Defendants’ arguments in support of their motion to reconsider are arguments which the Defendants unsuccessfully advanced in their motion to dismiss or otherwise fail to demonstrate that the Court committed clear error in concluding that Plaintiffs were prevailing parties based on the 2006 Orders. Upon review of its earlier Opinion, the Court concludes that the correct legal principles were applied and again concludes that the factual circumstances warrant a finding that Plaintiffs were prevailing parties with respect to the 2006 Orders. Accordingly, the Court finds that Defendants’ motion to reconsider is not well taken, and it is DENIED.
B. Plaintiffs’ Motion for Reconsideration Plaintiffs contend that the Court should reconsider its dismissal of Counts One and Two of the complaint based on a recent Eleventh Circuit Opinion and “new evidence.” In those counts, Plaintiffs alleged that, due to the vagueness of Voter ID Law, Ohio BOEs were not uniformly applying five specific ID requirements relating to the definition of several types of identification and the type of identification required for absentee voters.2 In its September 30,
2 Specifically Plaintiffs alleged that the following ID requirements were defined differently by different BOEs: (1) what constitutes a “current” government document or bill; (2) what
-8-

2008 Order, the Court dismissed those claims for lack of standing because plaintiffs had not alleged that any of their members “would be affected by the five areas of disparate interpretation of the Voter ID Law.” Ne. Ohio Coal. for the Homeless, 2008 WL 4449514 at * 6. Specifically, Plaintiffs had not claimed that any of their members intended to vote via absentee ballot or intended to use any of the categories of identification that were alleged to be non-uniformly defined. Id. The Court further explained that, given the small number of member voters identified by Plaintiffs, the Court could not overlook Plaintiffs’ failure to plead that any of its members intended to use a vaguely defined type of identification and merely assume standing based on a statistical likelihood that one of its members would inevitably use type of ID allegedly defined non-uniformly by the BOEs. Id. at *7.
Plaintiffs argue that a recent Eleventh Circuit opinion, Common Cause/Georgia v. Billups, 554 F.3d 1340 (11th Cir. 2009), establishes that they should not have been required to show that their members “were actually denied the right to vote, or that it was ‘statistically inevitable’ that such a denial would occur.” (Pls.’ Br. 6.) Instead, they argue “those members of NEOCH who voted either absentee or with one of the disputed forms of identification were subjected to a barrier to their right to vote . . . [a]ccordingly, if NEOCH can provide evidence that it had even one such member, then it had standing to bring Counts One and Two.” (Id.) Plaintiffs argument is unpersuasive.
First, and most tellingly, Plaintiffs argument misrepresents the Court’s ruling. Contrary to Plaintiffs’ assertion, the Court did not hold that plaintiffs were required to prove or to plead
constitutes an “other government document;” (3) which number on an Ohio driver’s license may be used by absentee voters; (4) whether military identification cards without a current address are acceptable; and (5) whether early in-person absentee voters must produce identification.
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that their members were actually denied the right to vote based on the BOEs misinterpretation or that they were required to show that such a denial would be statistically inevitable. Instead, the Court held (and Plaintiffs now concede) that, to demonstrate standing they had to plead or otherwise to establish that at least one of their members fell within the category of voters who were potentially affected by the alleged lack of uniformity, i.e., that they either intended to vote by absentee ballot or by using one of the disputed forms of identification. Ne. Ohio Coal. for the Homeless, 2008 WL 4449514 at *6. The Court explained that Plaintiffs had not “identified any of their members who would be affected by the five areas of disparate identification of the Voter ID Law” because they had because they had not claimed “that any of their members would have attempted to use any of the categories of identification that were alleged to be defined confusingly” and had “not claimed that any of their members were absentee voters.” Id. at *6-7. Accordingly, the Court held that Plaintiffs lacked standing. Id. Plaintiffs do not deny that they utterly failed to allege or show that any of their members fell within the category of voters who were potentially affected by the alleged lack of uniformity. Consequently, the Court’s dismissal for lack of standing was proper. United States v. Hays, 515 U.S. 737, 745 (1995) (voters alleging equal protection violations must produce evidence demonstrating that they have personally been subjected to the challenged action).
Furthermore, the Eleventh Circuit’s ruling in Billups does not alter this result. First, Billups would not suggest standing for Plaintiffs in this case. In Billups, plaintiffs argued that a Georgia statute that required them to produce photo identification imposed an undue burden on their right to vote in violation of the Fourteenth Amendment. 554 F.3d at 1374. The court held that they had standing to pursue that particular claim even though they could easily obtain a photo identification because they had demonstrated injury sufficient to confer standing based on
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having been subjected to the burden of producing an identification. Id. at 1352. The court explained that “[f]or purposes of standing, a denial of equal treatment is an actual injury even when the complainant is able to overcome the challenged barrier.” Id. at 1351. The Billups court’s finding of standing was logical because every voter was subjected to the challenged barrier, i.e., the requirement that they produce photo identification.
Unlike in Billups, Counts One and Two of Plaintiffs Complaint did not claim that the imposition of an identification requirement itself imposed an undue burden challenge to the Voter ID Law.3 Instead, those Counts claimed that BOEs were failing uniformly to accept certain types of identification and apply uniform procedures to absentee voters and that the lack of uniformity violated the Due Process and Equal Protection Clauses. Thus, only voters who attempted to use one of the disputed forms of identification or to vote absentee were subjected to barrier to their right to vote complained of in Counts One and Two. Accordingly, even considering Billups, Plaintiffs lacked standing unless they fell within the subset of voters who intended to use a disputed form of identification or to vote absentee. As Plaintiffs failed to allege or demonstrate that a single member voter fell within either of those subsets the Court properly found that they lacked standing to assert the claims in Counts One and Two. Second, Billups is not controlling precedent upon this Court and, therefore, is not a proper basis for a motion to reconsider. See Rodriguez, 89 F.App’x at 959.
Finally, Plaintiffs claim that they have “new evidence” in the form of a declaration from one of their members stating that she voted absentee in the 2006 election. To constitute “newly discovered evidence” for purposes of a motion for reconsideration, however, evidence must have
3 Plaintiffs did raise undue burden claims based on the identification requirements in Counts Three and Four, which survived Defendants’ motion to dismiss.
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been previously unavailable. GenCorp, Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999); Divine Tower Int’l Corp. v. Kegler, Brown, Hill, & Ritter Co., Nos. 2:04-CV-494, 2:04-CV-584, at *4 (S.D. Ohio Sept. 24, 2008). Plaintiffs could have (and should have) secured their member’s declaration at the time they filed their complaint or, at least, by the time they opposed Defendants motion to dismiss for lack of standing. Therefore, the declaration Plaintiffs now attempt to put before the Court was in no sense “previously unavailable” and cannot constitute new evidence sufficient to support a motion to reconsider.
For all of these reasons, Plaintiffs motion for reconsideration is DENIED. C. Plaintiffs’ Motions for Attorney’s Fees and Costs
Plaintiffs have moved this Court for an award of attorneys’ fees and costs against Defendants for their work relating to the procurement of the 2006 Orders and the 2008 Orders. Defendants contend that Plaintiffs should not be entitled to recover attorney fees and costs incurred in the litigation; however, Defendants contend that if Plaintiffs are granted such fees and costs a reasonable fee award is $0 given the degree of Plaintiffs’ overall success.
1. Entitlement to a Fee Award The Civil Rights Attorney’s Fees Award Act of 1976, 42 U.S.C. § 1988(b), permits a court to award reasonable attorney’s fees to the “prevailing party” in a civil rights action brought under 42 U.S.C. § 1983. A plaintiff is not entitled to any attorney’s fees unless it is a “prevailing party.” Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-92 (1989); see also DiLaura v. Twp. of Ann Arbor, 471 F.3d 666, 670 (6th Cir. 2006). A party qualifies as a “prevailing party” if it has obtained actual relief, such as an enforceable judgment or a consent decree, that materially alters the legal relationship between the parties, and directly benefits the
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plaintiff at the time of the judgment. Farrar v. Hobby, 506 U.S. 103, 111-12 (1992); Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 605 (2001); see also Maher v. Gagne, 448 U.S. 122, 129-130 (1980). Once it has established prevailing party status, the “degree of the plaintiff’s overall success goes to the reasonableness . . . not to the availability of a fee award.” Garland, 489 U.S. at 793. Unless “special circumstances” exist, a district court must award attorney’s fees to a prevailing party. See, e.g., Berger v. City of Mayfield Heights, 265 F.3d 399, 406 (6th Cir. 2001).
a. Entitlement to Fees & Costs Based on 2006 Orders The Court has already determined in its September 30, 2008 Order that Plaintiffs are prevailing parties with respect to their work securing the 2006 Orders. The Court has also denied, supra, Defendants’ motion to reconsider that ruling. Consequently, Plaintiffs are entitled to attorneys fees relating to the procurement of the 2006 Orders and the only question that remains with respect to that claim is the reasonableness of the amount of Plaintiffs fee request.
b. Entitlement to Fees & Costs Based on 2008 Orders In their Second Motion for Attorneys Fees, Plaintiffs argue that they are also prevailing parties and entitled to attorney’s fees and costs for their work in procuring the 2008 Orders. They requests fees and costs for periods of work which they claim are “reasonably related” to the 2008 Orders including: (1) fees and costs incurred in litigating the October 14, 2008 Preliminary Injunction Motion and procuring the 2008 Orders; (2) fees and costs incurred in attempting, unsuccessfully, to settle the case between December 2006 and the October 14, 2008 filing of the preliminary injunction motion; (3) fees and costs incurred in opposing Defendants Motion to Dismiss the claims related to the 2008 Orders; and (4) fees and costs incurred as a result of Plaintiffs efforts to protect the 2008 Orders in a subsequent lawsuit, State of Ohio ex rel. Skaggs
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v. Brunner, 549 F.3d 468 (6th Cir. 2008). Defendants argue that Plaintiffs cannot be deemed prevailing parties with respect to the 2008 Orders because those orders largely restated the existing Ohio election law respecting provisional ballots or made such insignificant changes to the established law that any success is too nominal to entitle Plaintiffs to a fee award.
The Court finds that Plaintiffs are a prevailing party in relation to their work procuring the 2008 Orders. In both their supplemental complaint and their October 2008 Motion for Preliminary injunction Plaintiffs challenged the alleged failure of the Ohio BOEs to apply uniform standards to the counting of provisional ballots. Plaintiffs alleged that there were several verifiable discrepancies in the standards that various BOEs intended to apply when counting provisional ballots that would result in a non-uniform treatment of provisional ballots jeopardizing the constitutional right of provisional voters, including Plaintiffs members.
Accordingly, the October 2008 Preliminary Injunction Motion sought, inter alia, an order identifying the standards that the BOEs were to apply. (Doc. No. 111 at 3.) The October 2008 Orders accomplished much of this goal, i.e., they provided the BOEs with a clear set of uniform procedures to guide their execution of their duties under the law. The 2008 Orders also clarified areas of ambiguity in the Ohio voting law and created new requirements designed to ensure the accurate counting of provisional ballots. Obtaining the 2008 Consent Orders altered the legal relationship between the parties.
Despite Defendants’ claims, the overlap between the contents of the 2008 Orders and the pre-existing requirements of the Ohio Code does not preclude a finding that Plaintiffs were prevailing parties based on the 2008 Orders. In fact, the overlap is to be expected as Plaintiffs sought in their Preliminary Injunction Motion to have the Defendant Secretary of State provide
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clear guidance to the BOEs about how the existing law was to be implemented. The Court has no doubt that the 2008 Orders provided such guidance by providing simple step-by-step instructions on how provisional ballots were to be counted as well as clarifying ambiguities in the law and fleshing out vague requirements. Moreover, the 2008 Orders reversed Defendant Secretary of State’s prior position that each BOE was responsible for creating their own regulations for determining how and whether to count provisional ballots. The 2008 Orders largely addressed Plaintiffs concerns that provisional ballots would not be counted uniformly across Ohio’s 88 Counties and, thereby, conferred a direct benefit on Plaintiffs’ members, who are largely homeless individuals who are constrained to vote via provisional ballot given their lack of proper identification to cast a regular ballot. Consequently, Plaintiffs are entitled to attorneys’ fees for their work in securing the 2008 Orders.
2. Reasonable Fee Amount “The starting point for determining the amount of a reasonable attorney fee is the ‘lodestar’ amount which is calculated by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate.” Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 551 (6th Cir. 2008); see also Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). “Where, the party seeking the attorney fees has established that the number of hours and the rate claimed are reasonable, the lodestar is presumed to be the reasonable fee to which counsel is entitled.” Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 564 (1986). In
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their First and Second Motions for Attorneys fees, Plaintiffs have requested a combined loadstar amount of $538,298.87 in attorneys’ fees and costs in the amount of $39,792.48.4
a. Hours Reasonably Expended A court may not “order a defendant to pay fees for time spent on matters unrelated to the issues on which plaintiff prevailed.” Gautreaux v. Chicago Housing Auth., 491 F.3d 649, 661 (7th Cir. 2007). Only “efforts on matters related to the plaintiffs’ success are compensable.” Id. Plaintiffs submit that 2,122.05 hours were reasonably expended on this case in connection with the 2006 and 2008 Orders. Defendants make several challenges to Plaintiffs’ hours calculation. First, Defendants argue that Plaintiffs cannot reasonably recover for hours spent on a November 2006 show cause hearing involving Mr. Chandra. At oral argument, Plaintiffs conceded this to be the case, but argued that they did not include hours expended on the show cause hearing in their request. Having reviewed Plaintiffs billing records, the Court finds that 15.5 hours, at a total cost of $4,582.50, included in Mr. Hollenbaugh’s Declaration in Support of Plaintiffs’ Second Motion for Attorneys’ Fees represent time expended related to the show cause hearing.5 Accordingly, that time will be deducted from Plaintiffs’ attorneys’ fee award.6
4 For the 2006 Orders they seek $262,764.25 in fees and costs in the amount of $19,211.98. In relation to the 2008 Orders, Plaintiffs request attorneys’ fees in the amount of $275,534.62 and costs in the amount of $20,580.50.
5 Those hours are found on the first page of Exhibit A to Hollenbaugh’s second declaration (Doc. No. 182) for the billing entries dated: 11/17/2006 for timekeepers DJC and HRH and 11/20/2006-11/22/2006 for timekeeper HRH.
6 Furthermore, from the Court’s review it appears that certain time entries for the same 11.3 hours of work were inadvertently included in both the first and second fee request for certain work performed by Mr. Hollenbaugh’s firm between January 14, 2008 and October 20, 2008. Those hours appear both on tenth page of Exhibit A to Hollebaugh’s second declaration
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Second, Defendants’ quibble with Plaintiffs’ inclusion of hours spent obtaining depositions in preparation for the November 2008 preliminary injunction hearing that they believe were “ultimately meaningless to the outcome of the case”(presumably because the preliminary injunction hearing was converted into a settlement conference and the depositions were, consequently, not used as exhibits). The depositions were taken as part of the process that resulted in Plaintiffs’ securing the October 2008 Orders. In fact, Plaintiffs’ ability to present to the Court evidence, in the form of deposition testimony from the various BOEs, indicating that the Voter ID Law requirements were being non-uniformly applied may easily have pressured Defendants to agree to settlement. The fact that Defendants consented to the 2008 Orders rather than combat Plaintiffs’ evidence, including the depositions, in Court does not render the depositions unrelated to Plaintiffs’ success. The Court declines to deduct hours spent obtaining the depositions from Plaintiffs’ fee award.
Third, Defendants object to Plaintiffs’ attempt to recover for hours spent negotiating settlement of the case between December 2006 and their filing of a Supplemental Complaint and Motion for Preliminary Injunction on October 14, 2008. They argue that Plaintiffs cannot reasonably be deemed prevailing parties in relation to those settlement efforts because they failed to settle the case. The Court agrees that the 2008 Orders came about as a direct result of Plaintiffs filing of the October 14, 2008 Preliminary injunction motion and Supplemental Complaint and the parties joint efforts to settle the preliminary injunction motion. Efforts to
(Doc. No. 182) and on the ninth page of Exhibit A to Hollenbaugh’s first declaration (Doc. No. 178). Plaintiffs’ cannot recover twice for the same hours, therefore, the $1,890.00 representing the double counting of those hours will be deducted. Defendants do not lodge any other objections to the hours expended by Plaintiffs in connection with the 2006 Orders and the Court finds those hours reasonable.
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settle the suit as it existed before the filing of the Supplemental Complaint and 2008 Preliminary Injunction Motion, however, were factually related to procurement of the 2008 Orders. Specifically, the settlement negotiations involved the lack of uniformity claims upon which the Plaintiffs ultimately received relief, and drove Plaintiffs’ decision to file the Supplemental Complaint and 2008 Preliminary Injunction Motion. Moreover, it is impossible for the Court to ferret out to what degree arguments made or evidence presented in the course of settlement negotiations influenced Defendants’ willingness to agree to the 2008 Orders. The Court concludes that Plaintiffs’ settlement attempts were related to their ultimate success in securing the 2008 Orders and are compensable. Gautreaux, 491 F.3d at 661 (“[E]fforts on matters related to the plaintiff’s success are compensable.”).
Fourth, Defendants object to Plaintiffs’ inclusion of hours spent working on the Skaggs case in their request for fees relating to the 2008 Order. The Court agrees that Plaintiffs are not entitled to a fee award for their work on the Skaggs case after they had secured the 2008 Orders. In the Skaggs case, Plaintiffs’ position was aligned with Defendants; therefore, there would be no basis for making Defendants liable to Plaintiffs for attorneys fees. Furthermore, Plaintiff is not entitled to recover fees for work performed on matters tangentially related to this lawsuit. Cook v. City of Norwood, No. C-1-02-073, 2005 WL 2373877, at *8 (S.D. Ohio Sept. 27, 2005) (reducing fee award by hours expended in another lawsuit even thought the other suit involved the same parties and was tangentially related to the case in which fees were sought). Finally, the position advocated by Plaintiffs in Skaggs was rejected both by the Sixth Circuit and the Ohio Supreme Court. Thus, Plaintiffs received no relief with respect to their work on the Skaggs and cannot be considered prevailing parties with respect to that work. Therefore, Plaintiffs fee award
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will be reduced to the extent it includes Plaintiffs’ work on the Skaggs case. The reduction is $29,444.50 in attorneys fees by the Court’s calculation.7
The resulting combined loadstar amount, accounting for all deductions listed above, is $502,381.87.
B. Reasonable Hourly Rates “To arrive at a reasonable hourly rate, courts use as a guideline the prevailing market rate, defined as the rate that lawyers of comparable skill and experience can reasonably expect to command within the venue of the court of record.” Geier v. Sundquist, 372 F.3d 784, 791 (6th Cir. 2004). Defendants argue that the hourly rates requested by certain of Plaintiffs’ counsel are unreasonably high and suggest that the hourly rates for all attorneys’ should be capped at $300 per hour. The Court notes that only three attorneys for Plaintiffs requested hourly rates above the $300 figure as follows: Mr. Hollenbaugh seeks $325 per hour; Mr. Concilla seeks $375 per hour; and Mr. Chandra seeks $395 per hour. Each of those attorneys has substantial expertise in litigating not only civil rights cases, but more specifically election law civil rights actions. Furthermore, Plaintiffs fee request are supported by declarations of the lawyers involved Having carefully reviewed Plaintiffs’ Counsel’s detailed billing records and in light of the complexity of this case and substantial civil rights litigation experience of Plaintiffs’ lead counsel, the Court finds that the billing rates for each of the attorneys (from $280 to $395 per hour) is reasonable and comparable to the rates of other attorneys of similar skill and experience
7That reduction represents: (1) $24,050.00 reduction in fees from Porter, Wright, Morris & Arthur, LLP’s fee request for hours spent on the Skaggs matter between 11/14/2008 and 12/12/2008; and (2) $5,394.50 reduction in fees from Carlile Patchen & Murshy LLP’s fee request for hours spent on the Skaggs matter between 11/4/2008 and 12/31/2008.
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in Columbus, Ohio. See Ray v. Franklin Cty. Bd. of Elections, No. 2:08-CV-1086, 2009 WL 1542737, (S.D. Ohio June 2, 2009) (approving $350 hourly rate for lead counsel in election law case); Project Vote v. Blackwell, No. 1:06-CV-1628, 2009 WL 917737, at *14 (N.D. Ohio Mar. 31, 2009) (awarding from $310-$450 per hour to partners in complex election law case).
C. Reduction to Loadstar Based on Overall Degree of Success If a plaintiff has achieved only partial success compared to the scope of the litigation as a whole, the fee request may be reduced below the lodestar figure. Hensley, 461 U.S. at 435-36. There is “no precise rule or formula” for making this determination. Id. at 436. When a court determines that a fee request must be reduced, it may try to identify specific hours to be eliminated or may reduce the overall award to account for the limited degree of success. Id. at 435-37. A court may not, however, reduce attorney’s fees based on “a simple ratio of successful claims to claims raised.” DiLaura, 471 F.3d at 672 (quoting Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson County, Tenn., 421 F.3d 417, 423 (6th Cir. 2005)) (internal quotation marks omitted). Where, as here, a party’s successful and unsuccessful claims are based on a “common core of facts,” such that they cannot easily be segregated the court should focus on the overall degree of success obtained to determine whether the lodestar amount should be reduced. Hensley, 461 U.S. at 434-35; Lee v. Javitch, Block & Rathbone, LLP, 568 F.Supp. 2d 870, 878 (S.D. Ohio 2008). Plaintiffs contend that they have achieved such excellent results for their clients that they should be entitled to recover the full loadstar amount. Defendants counter that their partial success in securing the 2006 and 2008 Orders was de minimis and so technical a victory that a reasonable fee award would be no fee at all. The Court disagrees with both positions.
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In filing their Original and Supplemental Complaints Plaintiffs sought to: (1) have the Voter ID Law declared unconstitutional; (2) enjoin its enforcement; and (3) obtain a declaratory order establishing uniform procedures for counting provisional ballots. It is clear from the record in this case that Plaintiffs’ counsel spent a significant time pursuing claims on which they did not prevail, yet they have, to date, achieved considerable success on their claims. As things stand, Plaintiffs’ success in securing the 2006 and 2008 Orders substantially clarified the procedures for counting provisional ballots, helped to clarify the ID requirements, and lessened the burden of those requirements by expanding the definitions of acceptable forms of ID. The Court finds that this was more than a technical victory and that Plaintiffs’ counsel are entitled to more than a nominal fee award for their efforts.
If Plaintiffs had achieved all they set out to do, however, the Voter ID Law would have been declared unconstitutional and Plaintiffs would no longer be burdened by its identification requirements. None of the Court’s rulings or consent orders to date has declared any portion of the Voter ID Law unconstitutional nor has the Court enjoined the enforcement of the Law. Thus, Plaintiffs have not achieved recovery related to all of their goals in this case. Given that a number of Plaintiffs’ claims have been dismissed for lack of subject matter jurisdiction, comparing the relief Plaintiffs obtained with the overall relief sought, the Court concludes that the full loadstar amount would be an excessive fee in this case. Plaintiffs have achieved substantial results to date, but the results are not so “excellent” that they are entitled to full recovery. See Hensley, 461 U.S. at 435 (reasoning that a plaintiff could fully recover fees despite not recovering on every claim, where the overall results obtained were “excellent”).
Although the Court has been able to segregate certain hours for which attorneys’ fees may not be recovered, supra Section IV.C.2.A, the claims are generally so intertwined that the
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Court cannot ascertain what number of hours was spent on the unsuccessful claims. In addition, the time entries are not so detailed that the Court can identify which claim each time entry pertains to. Consequently, the Court believes that a percentage reduction is proper so that the fee accurately reflects the degree of overall relief obtained by the plaintiff in relation to the relief sought. See Hensley, 461 U.S. at 435; Kentucky Restaurant Concepts, Inc. v. City of Louisville, 117 F.App’x 415, (6th Cir. 2004) (affirming 35% fee reduction based on partial success); Allen v. Allied Plant Maintenance Co. of TN., Inc., 881 F.2d 291 (6th Cir. 1989) (same). The Court concludes that a 20% reduction is appropriate in this case in light of Plaintiffs’ meaningful, but less than total, success. This results in a total fee award of $401,905.50 ($502,381.87. x 20% = $100,476.37; $502,381.87 - $100,476.37 = $401,905.50).
3. Costs & Expenses Plaintiffs move the Court for a total award of costs and expenses in the amount of $39,792.48. Defendants object to Plaintiffs’ inclusion of costs relating to hotel accommodation and food for certain Porter, Wright, Morris & Arthur, LLP attorneys from the firm’s Dayton office. Defendants argue that it is unreasonable to for Porter Wright to recover those costs when the firm has a Columbus Office. Defendants are unable to offer any authority in support of this position and the Court is unaware of any such rule. The Court finds that Plaintiffs’ inclusion of costs related to travel are reasonable and declines to reduce the cost award on that basis. Consistent with its reduction of attorneys fees for Plaintiffs work on the Skaggs matter, however, the Court finds that Plaintiffs costs should be reduced by the amount of costs incurred in those endeavors ($10,323.93). The resulting combined costs and expenses award is $29,468.55.
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IV. CONCLUSION For the foregoing reasons Defendants’ Motion for Reconsideration (doc. no. xx) and Plaintiffs’ Motion for Reconsideration (Doc. Nos. 183, 191) are both DENIED. The Court GRANTS Plaintiffs’ First and Second Motions for Attorney’s Fees and Costs (Doc. Nos.96, 176, 179) and AWARDS $401,905.50 in attorneys’ fees and $29,468.55 in costs and expenses, for a total of $431,374.05. IT IS SO ORDERED.

DATED: July 28, 2009

s/Algenon L. Marbley ALGENON L. MARBLEY United States District Court Judge

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 Case: 2:06-cv-00896-ALM-TPK Doc #: 154 Filed: 11/06/08 Page: 1 of 10 PAGEID #: 4409

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

NORTHEAST OHIO COALITION

:

FOR THE HOMELESS, et al.,

:

:

Plaintiffs,

:

:

v.

:

:

OHIO DEMOCRATIC PARTY,

:

:

Intervenor-Plaintiff,

:

:

:

JENNIFER BRUNNER, in her official

:

capacity as Secretary of State of Ohio,:

:

Defendant.

:

___________________________________ :

NORTHEAST OHIO COALITION

:

FOR THE HOMELESS, et al.,

:

:

Plaintiffs,

:

:

v.

:

:

THE STATE OF OHIO,

:

:

Intervenor-Defendant.

:

____________________________________ :

OHIO REPUBLICAN PARTY, et al.,

:

:

Plaitniffs,

:

:

v.

:

:

JENNIFER BRUNNER, in her official

:

capacity as Secretary of State of Ohio,:

:

Defendant,

:

:

VETERANS FOR AMERICA,

:

:

Intervenor-Defendant.

:

Case No. C2-06-896 JUDGE ALGENON L. MARBLEY Magistrate Judge Terence P. Kemp
Case No. C2-08-913 JUDGE GEORGE C. SMITH Magistrate Judge Terence P. Kemp

Case: 2:06-cv-00896-ALM-TPK Doc #: 154 Filed: 11/06/08 Page: 2 of 10 PAGEID #: 4410
OPINION & ORDER I. INTRODUCTION This matter is before the Court on Defendant Secretary of State Jennifer Brunner’s (“Defendant Brunner”) Motion to Consolidate (no. 146); Intervenor Ohio Democratic Party’s Motion to Consolidate (no. 150); and Plaintiffs Northeast Ohio Coalition for the Homeless’ and Service Employees International Union, Local 1199's (collectively “Plaintiffs”) Motion in Support of Secretary of State Jennifer Brunner’s Motion to Consolidate (no. 151) (collectively “Motions to Consolidate”). In their Motions to Consolidate, the parties argue that Ohio Republican Party v. Brunner (“ORP case”), case no. 2:08-cv-913, should be consolidated with The Northeast Ohio Coalition for the Homeless v. Brunner (“NEOCH case”), case no. 2:06-cv896, currently before this Court.1 The moving parties contend that the cases should be consolidated because the actions present common questions of law and fact and that the ORP Case should be consolidated with the NEOCH case because NEOCH case was the first-filed of the two cases. The Ohio Republican Party, a plaintiff in the ORP case, opposes consolidation. Oral argument on the Motions to Consolidate was heard on November 4, 2008. For the reasons discussed below, the Motions to Consolidate are GRANTED. II. BACKGROUND There are two cases involved in this matter. The NEOCH case, which involves constitutional challenges to Ohio’s Voter ID laws and Provisional Ballot Laws, was filed before this Court on October 24, 2006. The ORP case, which also involves constitutional challenges to
1 Defendant Brunner’s Motion to Consolidate (OPR no. 66) and Plaintiffs’ Motion in Support of Consolidation (ORP no. 68) were simultaneously filed in the ORP case before Judge Smith. The Ohio Republican Party’s Memorandum in Opposition to consolidation (ORP no. 69) was filed only in the ORP case, but its caption references both that case and the NEOCH case, currently before this Court.
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Case: 2:06-cv-00896-ALM-TPK Doc #: 154 Filed: 11/06/08 Page: 3 of 10 PAGEID #: 4411
Ohio’s Voter ID and Provisional Ballot Laws as enforced through Directives issued by Defendant Brunner (“Directives”), was filed on September 26, 2008 before Judge Smith. Under the well-established practice in the Southern District of Ohio, cases are consolidated into the first-filed case. Kohus v. Toys “R” Us, Inc., Nos. C-1-05-517, C-1-05-671, 2006 WL 1476209, at *2 (S.D. Ohio May 25, 2006) (“[I]t is common practice in the Southern District of Ohio to consolidate cases into the first-filed case”); see, e.g., Harden v. Bush, Nos. 3:06-cv-258, 3:08-cv096, 2008 WL 4533664 (S.D. Ohio Sept. 30, 2008) (consolidating into first-filed case). None of the parties contests this principle. Therefore, as the NEOCH case was filed almost two years before the ORP case, the cases will be consolidated into the NEOCH case.
A. Status of the ORP Case On November 4, 2008, Plaintiffs in the ORP case filed an Amended Complaint. (ORP Case no. 64). The Amended Complaint contained prayers for relief relating to four Directives issued by Secretary of State Brunner. First, Plaintiffs sought to enjoin Directive 2008-63;, however, at the time the Amended Complaint was filed the Ohio Supreme Court had already upheld that Directive in Ohio ex rel. Colvin v. Brunner, – N.E.2d –, 2008 WL 4443962, at *13 (Ohio Sept. 29 2008)2. Thus, Plaintiffs’ challenge to Directive 2008-63 is no longer at issue. Second, the Amended Complaint sought to enjoin Directive 2008-24; however, that issue is now moot because on October 16, 2008 the Ohio Supreme Court granted a writ of mandamus which prevented the enforcement of that Directive.3 Ohio ex rel. Stokes v. Brunner, Slip Opinion No. 2008-Ohio-5392, at ¶ 30 (Ohio Oct. 16, 2008). Moreover, the early voter period ended on
2 Directive 2008-63 advised the Ohio Boards of Elections that there were several days before the 2008 election in which voters could simultaneously register to vote and complete an absentee ballot.
3 Directive 2008-24 related to whether observers were allowed to be present during the early voting period.
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Case: 2:06-cv-00896-ALM-TPK Doc #: 154 Filed: 11/06/08 Page: 4 of 10 PAGEID #: 4412
November 3, 2008, the day before the Amended Complaint was filed in the ORP case.
Third, the Amended Complaint sought to enjoin Directive 2008-101and to require the
secretary to “promulgate uniform standards for the determination of the eligibility of provisional
ballots to be counted.” Directive 2008-101, however, relates to the provisional ballot issue that
is central to the October 2008 preliminary injunction proceedings in the NEOCH case. In fact,
Defendant Brunner issued Directive 2008-101as a means to settle the NEOCH case Plaintiffs’
motion for preliminary injunction. (See Directive 2008-101, ¶ 1). Moreover, in an October 24,
2008 Order in the NEOCH case (no. 142), this Court adopted and annexed Directive 2008-101 as
an Order of the Court. Therefore, the ORP case Plaintiffs’ challenges to Directive 2008-101 are
inextricably related to the NEOCH case.
Fourth, the Amended Complaint sought to enjoin Directive 2008-105. Directive 2008-
105 relates to the election night “Unofficial Canvass” of ballots. That Directive also deals with
the manner in which ballots are counted including “double-bubble” votes, in which a voter both
filled in the oval next to the candidate’s name and wrote in the name of the same candidate in the write-on candidate area..4
In sum, the ORP Case Plaintiffs’ challenges to Directives 2008-101 and 2008-105 are the
remaining issues before Judge Smith in the ORP case.
4 Directive 2008-105 discusses vote counting procedures in the context of the “unofficial canvass,” which occurs on election night and excludes provisional ballots, which are counted beginning the day after the election. Nevertheless, Defendant Brunner explained during oral argument on the Motions to Consolidate that the ballot counting procedures in 2008-105 would be applied to the counting of provisional ballots. Specifically, Defendant Brunner stated:
if someone were to cast a provisional ballot, and at the same time put–darken the oval next to a candidate’s name and in the write in line darken the oval and write in that candidate’s name, we’re still dealing with the question under [Directive 2008-105] should that ballot count in addition to [Directive 2008-101] should that ballot count. So that there is an overlap in the subject matter question of how are we counting ballots. (Mot. to Consolidate Hr’g Tr. 9).
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III. LAW & ANALYSIS Federal Rule of Civil Procedure 42(a) governs consolidation of cases. Under Rule 42 “if actions before the court involve a common question of law or fact the court, it may: (1) join for hearing or trial any or all matters at issue in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid unnecessary cost or delay.” Fed. R. Civ. P. 42(a). A trial court has broad discretion to consolidate cases under Rule 42(a). Fed. R. Civ. P. 42(a); Cantrell v. GAF Corp., 999 F.2d 1007, 1011 (6th Cir. 1993) (whether to consolidate is within discretion of trial court); see also Investors Research Co. v. U.S. Dist. Ct. for Cent. Dist. of California, 877 F.2d 777, 777 (9th Cir. 1989) (holding that a district court has broad discretion to consolidate cases pending in the same district even when cases are pending before different judges). In ruling on a motion to consolidate a court must consider: [W]hether the specific risks of prejudice and possible confusion [are] overborne by the risk of inconsistent adjudications of common factual and legal issues, the burden on parties, witnesses and available judicial resources posed by multiple lawsuits, the length of time required to conclude multiple suits as against a single one, and the relative expense to all concerned of the single-trial, multiple-trial alternatives. Id. (quoting Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492, 1495 (11th Cir. 1985)). Defendant Brunner, NEOCH case Plaintiffs and Intervenor Ohio Democratic Party (“Moving Parties”) all ask this Court to consolidate the ORP case with the NEOCH case. They assert that the cases overlap both factually, with regard to the counting of provisional ballots and the operation of Directive 2008-101, and legally, with regard to the assertions in both cases that lack of uniformity in counting provisional ballots violates member voters’ Equal Protection Clause Rights. Conversely, ORP case Plaintiffs claim that the two cases do not involve common issues of law or fact and that consolidation would be imprudent because the ORP case has been heavily litigated since its filing a little over one month ago.
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To evaluate whether the ORP case, as it exists after the Amended Complaint, shares

common issues of law and fact with the NEOCH case, the Court considered the prayers for

relief within the ORP Amended Complaint. A review of the prayers for relief convinces the

Court that there are a considerable number of common factual and legal questions in the two

cases, particularly relating to provisional ballot issues.

There are eight prayers for relief in the Amended Complaint filed before Judge Smith.

As discussed above, two have been mooted by Ohio Supreme Court rulings (prayers one and

three). One of the remaining requests is a non-substantive request for attorney’s fees and costs

(prayer eight).

The remaining five prayers for relief request the following:

•

Prayer Two: requests that provisional ballots be provided for voters who simultaneously

register to vote and request a ballot. To the extent that this prayer relates to Directive

2008-63, regarding simultaneous registration and voting it is mooted by the Colvin case

as discussed above. To the extent it relates to provisional balloting it implicates

Directive 2008-101.

•

Prayer Four: requests that Directive 2008-101 be rescinded or retracted.

•

Prayer Five: requests that Directive 2008-105 be rescinded or retracted.

•

Prayer Six: requests that the Secretary of State be required to promulgate uniform

standards for the counting of regular and provisional ballots. Thus it implicates both

Directive 2008-101 and 2008-105.

•

Prayer Seven: requests that the Secretary of State be required to promulgate uniform

standards for the determination of the eligibility of provisional ballots. Thus this prayer

also implicates Directive 2008-101.

Thus, of the five remaining prayers for relief, four of them relate to Directive 2008-101 (prayers two, four, six, and seven). Only one relates solely to Directive 2008-105 (prayer five). Therefore, there is substantial factual and legal overlap even within the prayers for relief such that consolidation would further the interests of judicial economy.

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Next, The Court notes that ORP case Plaintiffs did not point to any prejudice that could arise from consolidation in their Memorandum in Opposition to Consolidation.5 At oral argument they did argue that consolidation of the cases might result in counsel for the ORP case Plaintiffs being conflicted out of the case because Mr. Todd, current counsel to the Ohio Republican Party in the ORP case, represented Defendant Brunner in the NEOCH case in 2006 and because Mr. Hadden, also counsel to the Ohio Republican Party, works for the same firm as Ms. Gentry, current counsel for the NEOCH Plaintiffs. While the potential loss of current counsel would result in some prejudice to the ORP Plaintiffs, this prejudice is mitigated by the fact that the ORP case has been pending for just over a month, a short span of time in the life of a civil case.
While the ORP Plaintiffs’ motion for temporary restraining order was heavily litigated in that month, the issues involved in the TRO were related only to Plaintiffs’ Help America Vote Act Claim (“HAVA”), the merits of which have been cast into grave doubt by the Supreme Court’s ruling on the TRO. Brunner v. Ohio Republican Party, 77 U.S.L.W. 3238, 2008 WL 4601731 U.S., at *1 (2008) (holding Ohio Republican Party was not sufficiently likely to prevail on the question whether Congress authorized the District Court to enforce HAVA actions brought by a private litigant). Furthermore, the active prayers for relief in ORP Plaintiffs Amended Complaint relate to Directives 2008-101 and 2008-105, which where issued respectively on October 24, 2008 and October 31, 2008. Thus, counsel’s familiarity with those Directives stretches back only a little over a week. Finally, counsel for Mr. Wolpert, the other ORP case Plaintiff , was involved in the ORP case during the TRO proceedings and will not be conflicted out due to the consolidation, further mitigating any prejudice. The Court, therefore,
5 The Court also notes that Defendant Brunner, who is the Defendant in both actions actively supports and advocates consolidation.
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concludes that this alone is insufficient to bar consolidation of the cases given the amount of factual and legal overlap between the cases and the risk of inconsistent rulings on ballot counting issues absent consolidation.
During oral argument on the motions to consolidate, the parties agreed that the Directive 2008-101 issues should be consolidated given the centrality of that Directive to the NEOCH case Orders on Plaintiffs’ preliminary injunction motion.6 Moreover, the Court agrees with Defendant Brunner’s argument that without consolidation she faces a real risk of inconsistent adjudications regarding the validity of that Directive as the ORP case Plaintiffs seek to enjoin enforcement of that directive while this Court ordered compliance with the Directive in the NEOCH case. The Court believes Defendant Brunner should not be placed at risk of “hav[ing] to choose which court . . . she decide[s] to be found in contempt of.” (Mot. to Consolidate Hr’g Tr. 8).
While the Court initially considered consolidating only the Directive 2008-101 issues and leaving the Directive 2008-105 issues with Judge Smith, the Court ultimately concludes that to do so would be improvident. During oral arguments, Defendant Brunner explained that Directive 2008-105 would be used to count provisional ballots. (Mot. to Consolidate Hr’g Tr. 9, 11). Counsel for NEOCH Plaintiffs argued that they would be litigating over whether there was uniformity in counting provisional ballots among the various Ohio Boards of Electors and thus would also be seeking and presenting evidence of lack of uniformity in the procedures for
6 Counsel for ORP Case Plaintiffs stated: issues relating to the implementation of directive 2008-101, in all probability, belong in this court particularly since that directive was issued as part of a consent or settlement of the issues before the Court at that time . . . I believe the Court is correct and that should not be separated out into Judge Smith’s courtroom. (Mot. to Consolidate Hr’g Tr. 18).
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counting votes under Directive 2008-105. (Id. 13-14). Thus, absent consolidation both this Court and Judge Smith would have to consider the same Equal Protection Clause issues relating to Directive 2008-105.
NEOCH Plaintiffs’ counsel further argued that if the cases were not consolidated, the NEOCH Plaintiffs would have to intervene in the ORP case. (Id. 14-15). This would cause further redundancy between the two proceedings. Consequently, the Court finds that Directive 2008-105 issues and the allegations in the ORP case Amended Complaint are inextricably linked to the claims in the NEOCH Case and should be tried in one proceeding.
Also, looking at the allegations in the ORP Amended Complaint, the Court again finds considerable overlap in the legal issues between the cases. Both the Supplemental Complaint in the NEOCH case and the Amended Complaint in the ORP case contain allegations that lack of uniformity of the counting of provisional ballots violates voter’s rights to equal protection of the law. (ORP Amend. Compl. ¶¶ 34, 35, 86; NEOCH Supl. Compl. ¶¶ 116-18). Similarly, both complaints allege vote dilution claims based on the lack of uniformity in the counting of and eligibility determinations regarding provisional ballots. (ORP Am. Compl. ¶¶ 34, 35, 92; NEOCH Supl. Compl. ¶¶ 119-121). The Court believes it is expeditious to consider these issues in one lawsuit. Finally, the Court believes that consolidation is necessary to avoid the risk of inconsistent rulings on the constitutional validity of the procedures used to count provisional ballots under the Ohio Election Laws and the Directives issued by Defendant Brunner.
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IV. CONCLUSION The Court concludes that any risk of prejudice and possible confusion resulting from consolidation is overborne by the risk of inconsistent adjudications of common factual and legal issues in the two cases as well as the burden on judicial resources posed by multiple lawsuits. Therefore, the parties Motions to Consolidate (nos. 146, 150, and 151) are GRANTED. Ohio Republican Party v. Brunner, case no. 2:08-cv-913, will be consolidated with The Northeast Ohio Coalition for the Homeless v. Brunner, case no. 2:06-cv-896, the first-filed case. IT IS SO ORDERED.

DATE: November 6, 2008

s/Algenon L. Marbley ALGENON L. MARBLEY United States District Court Judge

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

THE NORTHEAST OHIO COALITION FOR THE HOMELESS, et al.,
Plaintiffs,
vs.
JENNIFER BRUNNER, in her official capacity as Secretary of State of Ohio,

: Civil Action No. C2-06-896 : Judge Algenon L. Marbley : : SUPPLEMENTAL COMPLAINT :

Defendant.

:

___________________________________

:

THE NORTHEAST OHIO COALITION

FOR THE HOMELESS, et al.,

:

Plaintiffs,

:

vs.

:

THE STATE OF OHIO,

:

Intervenor-Defendant.

:

For their Supplemental Complaint, Plaintiffs add three new Plaintiffs, set out the following occurrences and events that happened after the date on which the Complaint in this action was filed, supplement their existing claims accordingly, and add new claims based on these new facts and the Supreme Court’s decision in Crawford v. Marion County, ___ U.S. ___, 128 S. Ct. 1610 (2008):
I. BACKGROUND 1. Plaintiffs filed this action in October 2006 to challenge the constitutionality of the
newly-amended Ohio provisional ballot laws (R.C. §§ 3505.181(B)(4) and 3505.183(B))

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(“Provisional Ballot Laws”) and Ohio voter-identification laws (R.C. §§ 3501.01(AA), 3501.19, 3505.18, 3505.181(A)(2), 3505.181(A)(3), 3505.181(A)(4), 3505.181(A)(12), 3505.181(A)(13), 3505.181(B)(6), 3505.181(B)(7), 3505.181(B)(8)(a), portions of 3505.182, 3505.183(B)(3)(d), 3505.183(B)(4)(a)(v), 3505.183(B)(4)(a)(vii), 3509.03(E), portions of 3509.04, portions of 3509.05, portions of 3509.06(D) and portions of 3509.07) (“Voter ID Laws”). II. SUPPLEMENTAL ALLEGATIONS: PARTIES
A. Existing Plaintiff SEIU 2. Plaintiff SEIU represents more than 34,000 health care and social service workers across West Virginia, Kentucky and Ohio. On information and belief, some of its Ohio members will be required to vote by provisional ballot on Election Day in the November 2008 Election. B. Existing Plaintiff NEOCH 3. In September and October 2008, Plaintiff NEOCH devoted considerable time and resources to organizing drivers to drive hundreds of homeless voters to their Board of Elections so that they could register and vote at the same time. NEOCH would not have undertaken this effort but for the Defendants’ enforcement of the unconstitutional Voter ID Laws that impose a more severe burden on homeless people who vote on Election Day. 4. Throughout the month of October, Plaintiff NEOCH intends to continue devoting its resources to driving homeless voters to their Board of Elections to vote by absentee ballot so that they are not required to cast provisional ballots on Election Day. NEOCH would not be undertaking this effort but for the Defendants’ enforcement of the Voter ID Laws. 5. The considerable time and resources that Plaintiff NEOCH has devoted, and will devote, to driving homeless voters to the Board of Elections so that they can vote by absentee
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ballot, would otherwise have been spent on improving conditions within the emergency shelters in the community, as well as on NEOCH’ s homeless photography internship program.
C. New Plaintiff Kyle Wangler 6. Plaintiff Kyle Wangler is a member of Plaintiff NEOCH. 7. Plaintiff Wangler has been homeless for approximately two years because he was evicted. He does not have a current address. 8. When Plaintiff Wangler is able to do so, he resides in a homeless shelter located at 2100 Lakeside Avenue in Cuyahoga County, Ohio. 9. Plaintiff Wangler is a United States citizen and has a Social Security number. 10. Plaintiff Wangler is registered to vote in Cuyahoga County. His registration uses the 2100 Lakeside Avenue homeless shelter as his address. 11. Plaintiff Wangler has voted previously and intends to vote in the November 2008 election and the elections that follow. 12. Plaintiff Wangler wishes to vote on Election Day. 13. Plaintiff Wangler does not have any of the forms of identification required by the Voter ID Laws. 14. Plaintiff Wangler does not have an original or certified copy of his birth certificate, or any other primary document that would enable him to obtain a State ID card. 15. Plaintiff Wangler is trying to get his birth certificate now but will not have it by the time of the November 2008 Election.
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D. New Plaintiff James Wise 16. Plaintiff James Wise has been homeless for approximately seven years because he cannot find employment or housing. He does not have a current address. 17. When Plaintiff Wise is able to do so, he resides in a homeless shelter located at 2100 Lakeside Avenue in Cuyahoga County, Ohio. 18. Plaintiff Wise is a United States citizen and has a Social Security number. 19. Plaintiff Wise is registered to vote in Cuyahoga County. His registration uses the 2100 Lakeside Avenue homeless shelter as his address. 20. Plaintiff Wise has voted previously and intends to vote in the November 2008 election and the elections that follow. 21. Plaintiff Wise wishes to vote on Election Day. 22. Plaintiff Wise does not have any of the forms of identification required by the Voter ID Laws. 23. Plaintiff Wise does not have an original or certified copy of his birth certificate, or any other primary document that would enable him to obtain a State ID card. 24. It would be difficult for Plaintiff Wise to obtain a copy of his birth certificate because he does not have enough money to purchase it. E. New Plaintiff Columbus Coalition for the Homeless 25. Plaintiff Columbus Coalition for the Homeless (“ CCH” ) is a coalition of service providers, currently and formerly homeless people, and concerned citizens.
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26. Plaintiff CCH has homeless members who lack the identification required by the Voter ID Laws.
27. Part of Plaintiff CCH’ s mission is to advocate for social and economic justice for all people, especially those who are most vulnerable.
28. One of the ways in which Plaintiff CCH has carried out its mission is by assisting its homeless members and other homeless persons to register to vote and cast their votes.
29. This year, Plaintiff CCH helped to organize homeless providers to transport their clients to the Board of Elections to register to vote and cast their votes.
30. Plaintiff CCH intends to transport its homeless members and other homeless persons to the polls on Election Day in the November 2008 Election. III. SUPPLEMENTAL ALLEGATIONS: CLAIMS
31. Some of the following claims are brought by Plaintiff SEIU. 32. All of the following claims are brought by Plaintiff Wangler and Plaintiff Wise (the “ Individual Plaintiffs” ), and also by Plaintiff NEOCH and Plaintiff CCH (the “ Coalitions” ). 33. The Individual Plaintiffs and some of the Coalitions’ members do not have any of the required forms of identification and so must cast a provisional ballot on Election Day in the November 2008 Election. 34. Ohio’ s eighty-eight Boards of Elections did not apply the Provisional Ballot Laws equally in the November 2006 Election, and will not apply them equally in the November 2008 Election. 35. All Ohio voters who cast provisional ballots in the November 2008 Election— including the Individual Plaintiffs, the Coalition’ s members, and Plaintiff SEIU’ s members—
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face the realistic danger of having their vote be denied, diluted or abridged in violation of the Equal Protection and Due Process Clauses of the United States Constitution.

36. The Individual Plaintiffs and some of the Coalitions’ members must purchase a State ID card and, possibly, a birth certificate to cast a regular ballot on Election Day in November 2008 and avoid being required to cast a provisional ballot.

37. The requirement that these voters must purchase a State ID card and, possibly, a birth certificate to avoid being subjected to an inferior and unconstitutional voting procedure, imposes a severe and undue burden on the Individual Plaintiffs and some of the Coalitions’ members.

38. The requirement that these voters must purchase a State ID card and, possibly, a birth certificate to avoid being subjected to an inferior and unconstitutional voting procedure imposes an unlawful poll tax on the Individual Plaintiffs and some of the Coalitions’ members.

39. Election:

Plaintiffs seek the following remedies with respect to the November 2008

a. An order declaring that the Voter ID Laws are facially unconstitutional because they impose an unlawful poll tax, and enjoining their enforcement preliminarily;

b. In the alternative, an order declaring that the Voter ID Laws are unconstitutional as applied to the Individual Plaintiffs and the Coalitions’ homeless members, and enjoining their enforcement preliminarily with respect to the Individual Plaintiffs, the Coalitions’ homeless members and all similarly situated homeless voters in the State of Ohio; and

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c. An order that sets forth uniform procedures and standards that Ohio’ s Boards of Elections must apply when determining whether provisional ballots should be counted, provides for monitoring of compliance, and provides remedies for non-compliance.
IV. PROVISIONAL BALLOTS CAST IN THE NOVEMBER 2006 ELECTION WERE TREATED DIFFERENTLY AND UNEQUALLY BY OHIO’S BOARDS OF ELECTIONS. 40. Ohio’ s eighty-eight Boards of Elections applied different and unequal standards
when determining which of the provisional ballots that were cast in the November 2006 Election were eligible to be counted.
41. Ohio voters cast 127,758 provisional ballots in the November 2006 Election, which was the second-highest total of any state.
42. The following counties reported having the highest numbers of provisional ballots: Franklin (20,322), Cuyahoga (15,917), Hamilton (12,569), Montgomery (6,630), Butler (5,150), Lucas (4,910), Summit (4,891), Stark (4,069) and Lorain (2,979).
43. The U.S. Election Assistance Commission (“ EAC” ) conducted a survey after the November 2006 Election that asked State officials to report certain information about provisional ballots, by county.
44. The results of the EAC survey were released in December 2007. 45. The provisional ballot data reported by Ohio shows that its Boards of Elections applied disparate and unequal standards when deciding which provisional ballots were eligible to be counted.
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A. Significant Differences In Rejection Rates 46. Of the 127,758 provisional ballots that were cast in the November 2006 election, Ohio’ s Boards of Elections rejected 23,062, or 18.1%. 47. Individual counties varied significantly from the total rejection rate of 18.1%. 48. The wide variation demonstrates that some Boards of Elections applied stricter standards than others:
a. The Belmont County Board of Elections rejected 43.1% of provisional ballots, or nearly one out of every two ballots that were cast.
b. The Coschocton County Board of Elections rejected 0.85% of provisional ballots, or less than one percent of the ballots that were cast.
c. Five Boards of Elections— in Belmont, Madison, Putnam, Logan and Summit Counties— rejected more than 30% of all provisional ballots cast.
d. Six Boards of Elections— in Seneca, Holmes, Pike, Gallia, Monroe and Coshocton Counties— rejected less than 5% of all provisional ballots cast.
B. Differences In The Reasons For Rejecting Provisional Ballots 49. The EAC survey required Boards of Elections to report how many provisional ballots were rejected for each of sixteen reasons. 50. Those data strongly suggest that Ohio’ s Boards of Elections did not apply the same standards when determining whether provisional ballots should be counted or rejected.
1. The voter had already voted. 51. Some provisional ballots were rejected because the voter had already voted.
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52. Twenty-five Boards of Elections rejected 163 provisional ballots for this reason, with the most ballots rejected in Franklin (63), Lucas (21) and Hamilton (17) Counties.

53. Sixty-three Boards of Elections did not reject even a single provisional ballot for this reason.

2. The voter was ineligible. 54. Some provisional ballots were rejected because the Board of Elections determined that the voter was ineligible.

55. Twenty-six Boards of Elections rejected 459 provisional ballots for this reason, with the most ballots rejected in Summit (128), Greene (78) and Belmont (66) Counties.

56. The Belmont County Board of Elections rejected 12.4% of its provisional ballots on this basis, which was a far higher percentage than in any other county.

57. Sixty-two Boards of Elections— including Hamilton, Lucas, Montgomery and Stark Counties— did not reject even a single provisional ballot for this reason.

58. missing.

3. Missing ballots. Some provisional ballots were rejected because the ballot was supposedly

59. Thirteen Boards of Elections rejected a total of 181 provisional ballots for this reason, with the most ballots rejected in Warren (62), Clark (30) and Clermont (18) Counties.

60. The Morgan County Board of Elections rejected 7.0% of its provisional ballots on this basis, which was a far higher percentage than in any other county.

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61. Seventy-five Boards of Elections— including in Cuyahoga, Franklin, Hamilton, Summit, Butler, Lorain and Stark Counties— did not reject even a single provisional ballot for this stated reason.

4. Lack of identification. 62. Some provisional ballots were rejected because the voter did not provide identification.

63. Sixty-four Boards of Elections rejected a total of 2,726 provisional ballots for this reason, with the most ballots rejected in Lorain (383), Summit (349) and Lucas (330) Counties.

64. The Putnam County Board of Elections rejected 38.0% of its provisional ballots on this basis, which was a far higher percentage than in any other county.

65. Twenty-four Boards of Elections— including in Franklin and Stark Counties— did not reject even a single provisional ballot for this reason.

66. signature.

5. Non-matching signatures. Some provisional ballots were rejected because there was a non-matching

67. Five Boards of Elections rejected a total of 14 provisional ballots for this reason, with the most ballots rejected in Lucas County (9).

68. Eighty-three Boards of Elections— including in Franklin, Cuyahoga, Hamilton, Montgomery, Butler, Summit, Stark and Lorain Counties— did not reject even a single provisional ballot for this reason.

6. Not registered. 69. Some provisional ballots were rejected because the voter was not registered.

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70. Eighty-four Boards of Elections rejected provisional ballots for this reason, with the highest rejection rates in Belmont (12.4%), Preble (12.0%), Lorain (11.9%), Carroll (10.6%), Union (10.5%), Wyandot (10.4%) and Warren (10.0%) Counties.
71. Some Boards of Elections in the counties with the most provisional ballots had significantly lower rejection rates, namely Franklin (3.4%), Hamilton (6.2%), Butler (3.7%), Summit (5.7%) and Stark (4.5%) Counties.
C. Inconsistent Data 72. Some Boards of Elections did not handle provisional ballots accurately and consistently. 73. Nineteen Ohio Boards of Elections reported provisional ballot data that are inconsistent. For example:
a. The Summit County Board of Elections reported that voters cast 4,891 provisional ballots, but also reported that it counted 4,511 provisional ballots and rejected 1,525 provisional ballots, yielding a discrepancy of 1,145 ballots.
b. The Clark County Board of Elections reported that voters cast 1,218 provisional ballots, but also reported that it counted 1,151 provisional ballots and rejected 211 provisional ballots, yielding a discrepancy of 144 ballots.
c. The Miami County Board of Elections reported that voters cast 897 provisional ballots, but also reported that it counted 713 provisional ballots and rejected 162 ballots, yielding a discrepancy of 22 ballots.
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74. The data collected and reported by the EAC show that Ohio’ s Boards of Elections applied different and unequal standards when determining whether provisional ballots cast in the November 2006 Election were eligible to be counted, in violation of the Due Process and Equal Protection Clauses of the United States Constitution. V. THE VOTER ID AND PROVISIONAL BALLOT LAWS DEPRIVE THE
INDIVIDUAL PLAINTIFFS AND SOME OF THE COALITIONS’ MEMBERS OF THEIR RIGHTS TO DUE PROCESS AND EQUAL PROTECTION, AND IMPOSE AN UNLAWFUL POLL TAX. A. There Are Homeless Voters In Ohio 75. Ohio law allows homeless voters to register to vote by using the address of the shelter or other location where they usually reside. 76. When registering to vote in Ohio, voters need not provide any of the required identification but instead can provide the last four digits of their Social Security number. 77. Some of Ohio’ s registered voters are homeless, including the Individual Plaintiffs. 78. Some of these registered homeless voters, including the Individual Plaintiffs and some of the Coalitions’ members, intend to vote in the November 2008 Election. B. Many Homeless Voters Lack The Required Identification 79. The Voter ID Laws permit voters to use several types of identification. 80. Most types of permitted identification, including utility bills, bank statements, government checks, paychecks or “ other government documents,” must contain the voter’ s current address. 81. Because they are homeless, the Individual Plaintiffs and some of the Coalitions’ members do not have identification that contains a current address.
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82. The only forms of permitted identification that do not require a current address are military ID cards or current and valid (i.e., unexpired) United States passports, State of Ohio driver’ s licenses or State ID cards.
83. Although some homeless people in the State of Ohio do have military ID cards or current and valid United States passports, State of Ohio driver’ s licenses or State ID cards, many homeless people do not have such identification.
84. The Individual Plaintiffs and some of the Coalitions’ members do not have military ID cards or current and valid United States passports, State of Ohio driver’ s licenses or State ID cards.
C. It Is Difficult For Many Homeless Voters To Vote Absentee 85. Ohio law allows any registered voter to vote by absentee ballot, either by mail or in-person, before Election Day. 86. Absentee voters are not required to provide one of the forms of required identification but instead can provide the last four digits of their Social Security number. 87. Homeless voters who wish to vote by absentee ballot face numerous difficulties that effectively prevent many of them from doing so. 88. Absentee voting by mail is difficult for many homeless voters:
a. Voters who apply for and cast absentee ballots by mail must use their current address;
b. Some homeless voters do not have mail service at the location where they usually reside;
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c. Although mail service is provided at some homeless shelters, that service can often be unreliable; and
d. Homeless voters must pay for postage when returning the absentee ballot application and the absentee ballot.
89. In-person early voting at the Board of Elections is difficult for many homeless voters because they lack adequate transportation:
a. Many homeless people do not own cars; b. Many homeless voters do not have ready access to transportation to and
from the Board of Elections; and c. Many Ohio counties lack public transportation systems. 90. As a practical matter, many homeless voters require assistance to vote by absentee ballot prior to Election Day. D. It Is A Severe Burden For Homeless Voters To Buy A State ID 91. The Individual Plaintiffs and some of the Coalitions’ members must purchase State ID cards to vote by regular ballot on Election Day and avoid casting a provisional ballot that will likely be treated differently and unequally by Ohio’ s Boards of Elections. 92. Unlike the State of Indiana, where the voter identification laws were recently upheld, the State of Ohio does not provide free identification cards to registered voters. 93. The cost of a new State of Ohio identification card is $8.50. 94. Many homeless voters, including the Individual Plaintiffs and some of the Coalitions’ members, cannot afford to purchase a State ID card.
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E. It Is A Severe Burden For Homeless Voters To Buy The Identification That Is Necessary To Obtain A State ID
95. To obtain a State of Ohio identification card, a person must provide both a “ primary document” and a “ secondary document.”
96. Acceptable primary documents are: (a) a driver’ s license or state-issued identification card from any state which is unexpired or expired not more than six months ago; (b) an original or certified copy of a birth certificate, with a seal; (c) a valid military identification with a photograph; (d) an original and valid U.S. Citizenship and Immigration service document; (e) a certified copy of a court order with the person’ s full name and date of birth, and with the court’ s seal affixed to it; (f) a release identification card issued after June 22, 2006 by the Ohio Department of Rehabilitation and Correction; or (g) a state-issued learners permit from any state with a photograph which is unexpired or expired not more than six months ago.
97. Often, the only type of primary document that can be obtained by a homeless person is an original or certified copy of a birth certificate, with a seal.
98. A birth certificate is the basis for all forms of identification, but there is no national standard or process for obtaining one’ s birth certificate.
99. The cost of obtaining an Ohio birth certificate varies from county to county, and ranges from $16.50 to $23.00. Many homeless people, including the Individual Plaintiffs and some of the Coalitions’ members, cannot afford to purchase a copy of their birth certificate.
100. Additional costs can be imposed by travel, postage or other incidental expenses necessary to request or obtain the birth certificate.
15

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101. The process of obtaining a birth certificate can be expensive and time-consuming. Some homeless people must wait six, eight or ten months to receive a birth certificate.
102. A few states make it nearly impossible for a homeless person to get a copy of their own birth certificate. In some instances it is easier to travel to one’ s place of birth in order to obtain a birth certificate, but that is often not an option for homeless people.
103. In addition, because they are homeless, it is also difficult for homeless voters to keep track of their birth certificate and other important documents.
104. It is a severe burden for some homeless voters, including the Individual Plaintiffs and some of the Coalitions’ members, to obtain their birth certificate.
F. A Substantial Number Of Homeless Voters Lack And Cannot Afford ID 105. In January 2007, there were an estimated 11,264 homeless people in the State of Ohio. 106. On information and belief, there are currently several thousand homeless people in the State of Ohio. 107. Although some of those homeless people are children, there are still thousands of voting-age homeless persons in the State of Ohio. 108. In addition to the Individual Plaintiffs and some of the Coalitions’ members, a substantial number of homeless people in the State of Ohio are registered to vote and intend to vote in the November 2008 Election, but lack the required identification and find it severely burdensome to purchase State ID cards and birth certificates, and so must cast provisional ballots on Election Day.
16

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109. These homeless voters include Whitney Baccus, Rebecca Battle, Sandra Daniels Kira Dickerson, Marica Ellis, Demetra Glover, Brandon Hurd, James Knapp, Warren Langford, Darene Lansing, Yelena Morales, Lalana Pratt, Rachel Roach, Toni Spikts, Sherrell Swab, Christine Ward and Monique Williams.
G. The State’s Interest In Deterring And Detecting Voter Fraud Does Not Justify The Severe Burden That The Laws Place On Homeless Voters
110. The State of Ohio has a legitimate interest in detecting and deterring voter fraud. 111. There is virtually no evidence of in-person impersonation voter fraud in Ohio. 112. Historically and nationally, there is virtually no evidence of voter fraud committed by homeless voters. 113. It is unnecessary to impose severe burdens on the voting rights of homeless voters to further the State’ s interest in detecting and deterring voter fraud. 114. The State’ s interest is sufficiently safeguarded by the availability of criminal penalties for voters who commit fraud. 115. In addition, less onerous means are available that would effectuate the State’ s interest in detecting and deterring voter fraud. For example:
a. Each Board of Elections could provide a letter to all homeless voters that shows the voter’ s registered address; such letters would constitute “ other government documents” and provide an acceptable form of ID; and/or
b. The State could allow homeless voters to provide the last four digits of their Social Security Number, which is a verifiable means of identification that is sufficient for them to register to vote; and/or
17

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c. The State could allow homeless voters to provide other types of listed identification, such as government checks (e.g., Social Security Disability), that have a name but do not have a current address; and/or
d. The State could provide free State IDs to homeless voters, as well as financial assistance that will allow them to obtain their birth certificates.
SUPPLEMENTAL ALLEGATIONS: COUNT TWELVE Violation Of 42 U.S.C. § 1983 And The Due Process Clause Of The Fourteenth Amendment To the United States Constitution (Non-Uniform Application Of The Provisional-Ballot Laws) 116. The provisional ballot laws were differently and unequally applied by Ohio’ s eighty-eight Boards of Elections in the November 2006 Election, and will be differently and unequally applied by Ohio’ s Boards of Elections in the November 2008 Election. 117. The non-uniform application of the provisional ballot laws by Boards of Elections has violated and will violate the substantive due process rights of the Individual Plaintiffs, some of the Coalitions’ members, and some of Plaintiff SEIU members. 118. As a result, Plaintiffs and their members will imminently suffer a concrete and particularized injury-in-fact that is fairly traceable to the Defendants’ actions and is likely to be redressed by the relief requested in this lawsuit.
18

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SUPPLEMENTAL ALLEGATIONS: COUNT THIRTEEN Violation Of 42 U.S.C. § 1983 And The Equal Protection Clause Of The Fourteenth Amendment To the United States Constitution
(Non-Uniform Application Of The Provisional-Ballot Laws) 119. The provisional ballot laws were differently and unequally applied by Ohio’ s eighty-eight Boards of Elections in the November 2006 Election, and will be differently and unequally applied by Ohio’ s Boards of Elections in the November 2008 Election. 120. The non-uniform application of the provisional ballot laws by Boards of Elections has caused and will cause the votes of the Individual Plaintiffs, some of the Coalitions’ members, and some of Plaintiff SEIU’ s members to be either unduly burdened or improperly denied, diluted or not counted, in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. 121. As a result, Plaintiffs and their members will imminently suffer a concrete and particularized injury-in-fact that is fairly traceable to the Defendants’ actions and is likely to be redressed by the relief requested in this lawsuit.
NEW COUNT FOURTEEN (Violation Of 42 U.S.C. § 1983 And The Equal Protection Clause Of The
Fourteenth Amendment To the United States Constitution) (Severe Burden Imposed By The Voter ID Laws)
122. The Individual Plaintiffs and some of the Coalitions’ members must undertake the burden and expense of purchasing a State of Ohio ID card and, possibly, a birth certificate, to cast a regular ballot on Election Day and ensure that their vote will be counted, which imposes a severe, unnecessary and undue burden on their fundamental right to vote.
19

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123. The Voter ID Laws are facially unconstitutional because they impose an unlawful poll tax and/or unlawful wealth restrictions on Ohio voters in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
124. In the alternative, the Voter ID Laws are unconstitutional as applied to the Individual Plaintiffs and some of the Coalitions’ members because they impose a severe, unconstitutional and undue burden on their right to vote and have their vote be counted, in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
125. As a result, the Individual Plaintiffs and some of the Coalitions’ members have suffered and will imminently suffer a concrete and particularized injury-in-fact that is fairly traceable to the Defendants’ actions and is likely to be redressed by the relief requested in this lawsuit.
NEW COUNT FIFTEEN (Violation Of 42 U.S.C. § 1983 And The Due Process Clause Of The
Fourteenth Amendment To the United States Constitution) (Severe Burden Imposed By The Voter ID Laws)
126. The Individual Plaintiffs and some of the Coalitions’ members must undertake the burden and expense of purchasing a State of Ohio ID card and, possibly, a birth certificate, to cast a regular ballot on Election Day and ensure that their vote will be counted, which imposes a severe, unnecessary and undue burden on their right to vote.
127. The Voter ID Laws have therefore violated and will violate the substantive due process rights of the Individual Plaintiffs and some of the Coalitions’ members.
20

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128. As a result, the Individual Plaintiffs and some of the Coalitions’ members have suffered and will imminently suffer a concrete and particularized injury-in-fact that is fairly traceable to the Defendants’ actions and is likely to be redressed by the relief requested in this lawsuit.
NEW COUNT SIXTEEN (Poll Tax In Violation Of 42 U.S.C. § 1983 And The Twenty-Fourth And
Fourteenth Amendments To the United States Constitution) 129. There are candidates for federal office in the November 2008 Election. 130. Because the Individual Plaintiffs and some of the Coalitions’ members must purchase a State of Ohio identification card and, possibly, a birth certificate to be permitted to exercise their right to vote on Election Day and have their vote be counted, the Voter ID Laws constitute an unlawful poll tax in violation of the Twenty-Fourth and Fourteenth Amendments to the United States Constitution. 131. As a result, the Individual Plaintiffs and some of the Coalitions’ members will imminently suffer a concrete and particularized injury-in-fact that is fairly traceable to the Defendants’ actions and is likely to be redressed by the relief requested in this lawsuit.
IRREPARABLE HARM/INADEQUATE REMEDY AT LAW 132. The State of Ohio will hold a general election on November 4, 2008 that will be subject to the Voter ID and Provisional Ballot Laws. 133. Plaintiffs and their members will be irreparably harmed if they are chilled from exercising their right to vote or denied their right to vote, or their right to have their vote counted and not be denied, diluted or abridged, and therefore must forfeit their rights as registered voters to vote in this election and subsequent elections.
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134. Plaintiffs and their members cannot be adequately compensated for this harm in an action at law for money damages.
WHEREFORE, Plaintiffs supplement their prayer for relief to request the following:
a) The Court: (i) enter a declaratory judgment under 28 U.S.C. § 2201 declaring that the Voter ID Laws are facially unconstitutional and are in violation of federal law, null and void; (ii) enter a preliminary and permanent injunction that restrains and enjoins Defendants from enforcing or applying the Voter ID Laws; and (iii), Defendant Brunner to issue notice of same to all Ohio Boards of Elections; or
b) In the alternative, the Court: (i) enter a declaratory judgment under 28 U.S.C. § 2201 declaring that the Voter ID Laws are unconstitutional as applied to the Individual Plaintiffs and the Coalitions’ homeless members, and are in violation of federal law, null and void; (ii) enter a preliminary and permanent injunction that restrains and enjoins Defendants from enforcing or applying the Voter ID Laws with respect to the Individual Plaintiffs, the Coalitions’ homeless members and similarly-situated homeless voters in the State of Ohio; and (iii) require Defendant Brunner to issue notice of same to all Ohio Boards of Elections; and
c) The Court: (i) enter a declaratory judgment under 28 U.S.C. § 2201 declaring that all Boards of Elections must equally apply uniform standards and procedures when interpreting the Provisional Ballot Laws to determine whether provisional voters’ ballots should be counted; (ii) enter an order that sets forth those standards and procedures; (iii) enter an order that sets forth a process to monitor compliance
22

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and impose remedies for non-compliance; and (iv) require Defendant Brunner to
issue notice of same to all Ohio Boards of Elections; and
d) Plaintiffs recover their reasonable attorneys’ fees and costs; and
e) Plaintiffs have such other and further relief that the Court deems just and
equitable.
Respectfully submitted,
/s/ Caroline H. Gentry Caroline H. Gentry, Trial Attorney (0066138) Lindsay Sestile (0075618) Paul G. Hallinan (0010462) PORTER, WRIGHT, MORRIS & ARTHUR LLP One South Main Street, Suite 1600 Dayton, OH 45402 Tel: (937) 449-6748 Fax: (937) 449-6820 Email: cgentry@porterwright.com
and
Subodh Chandra (0069233) THE CHANDRA LAW FIRM, LLC 1265 W. 6th Street, Suite 400 Cleveland, OH 44113-1326 Tel: (216) 578-1700 Fax: (216) 578-1800 Email: Subodh.Chandra@StanfordAlumni.org
and
H. Ritchey Hollenbaugh (0001072) CARLILE PATCHEN & MURPHY LLP 366 East Broad Street Columbus, OH 43215 Tel: (614) 228-6135 Fax: (614) 221-0216 Email: hrh@cpmlaw.com
Attorneys for Plaintiffs
23

Case: 2:06-cv-00896-ALM-TPK Doc #: 159 Filed: 11/21/08 Page: 24 of 24 PAGEID #: 4470 CERTIFICATE OF SERVICE
I hereby certify that on November 21, 2008, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the counsel of record in this case.
/s/ Caroline H. Gentry Caroline H. Gentry (0066138) Attorney for Plaintiffs PORTER, WRIGHT, MORRIS & ARTHUR LLP One South Main Street, Suite 1600 Dayton, Ohio 45402 (937) 449-6748 / (937) 449-6820 Fax cgentry@porterwright.com
24

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

NORTHEAST OHIO COALITION

:

FOR THE HOMELESS, et al.,

:

:

Plaintiffs,

:

:

v.

:

:

JENNIFER BRUNNER, in her official

:

capacity as Secretary of State of Ohio,

:

Defendant.

:

___________________________________ :

:

NORTHEAST OHIO COALITION

:

FOR THE HOMELESS, et al.,

:

:

Plaintiffs,

:

:

v.

:

:

THE STATE OF OHIO,

:

:

Intervenor-Defendant.

:

:
Case No. C2-06-896
JUDGE ALGENON L. MARBLEY Magistrate Judge Terence P. Kemp

ORDER

This matter is before the Court on Plaintiffs Northeast Ohio Coalition for the Homeless’

and Service Employees International Union, Local 1199's (collectively “Plaintiffs”) Motion to

Enforce Judgment (doc. no. 162) and Motion to Enjoin the Ohio Supreme Court’s Order in State

ex rel. Skaggs v. Brunner (doc. no. 167) (collectively “Motions”). Plaintiffs ask this Court to:

(1) enjoin the Ohio Supreme Court’s Order in State ex Rel. Skaggs v. Brunner, 900 N.E.2d 982

(Ohio 2008), a case in which they were not a party; (2) order Defendant, Secretary of State

Brunner, to rescind a Directive issued in compliance with the Ohio Supreme Court’s ruling,

Directive 2008-118; and (3) order that Secretary of State Brunner vote in favor of counting

certain disputed provisional ballots that contained the voter’s printed name but no signature. Plaintiff’s allege that these steps are necessary to enforce the Court’s October 24, 2008 and October 27, 2008 Orders in this case. The Court disagrees.
Plaintiffs’ request is in essence a repetition of the arguments made in Ohio ex rel. Skaggs v. Brunner when it was before this Court. Those arguments are foreclosed by the Sixth Circuit’s ruling in the case, Ohio ex rel. Skaggs v. Brunner, 549 F.3d 468 (6th Cir. 2008), which this Court is bound to follow. Furthermore, Plaintiffs request that the Court direct the Secretary to vote in favor of counting certain disputed ballots that request is MOOT. The November 2008 election is over, the Ohio Supreme Court has ruled on the proper interpretation of Ohio Voting Law, and all ballots have been tallied. To the extent that Plaintiffs seek to have this Court enjoin the Supreme Court’s Ruling in anticipation of future elections, Plaintiffs’ request is not ripe. Moreover, this Court lacks jurisdiction to review a case litigated before and decided by the Ohio Supreme Court. Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983); Tropf v. Fid. Nat. Title Ins. Co., 289 F.3d 929, 936 (6th Cir. 2002). For all these reasons, Plaintiffs’ Motions, (doc nos. 162 and 167), are DENIED.
IT IS SO ORDERED.

DATE: August 12, 2008

s/Algenon L. Marbley ALGENON L. MARBLEY United States District Court Judge

-2-

 
 Case: 2:06-cv-00896-ALM-TPK Doc #: 205 Filed: 07/30/09 Page: 1 of 5 PAGEID #: 4958

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

NORTHEAST OHIO COALITION

:

FOR THE HOMELESS, et al.,

:

:

Plaintiffs,

:

:

v.

:

:

JENNIFER BRUNNER, in her official

:

capacity as Secretary of State of Ohio,

:

Defendant.

:

___________________________________ :

:

NORTHEAST OHIO COALITION

:

FOR THE HOMELESS, et al.,

:

:

Plaintiffs,

:

:

v.

:

:

THE STATE OF OHIO,

:

:

Intervenor-Defendant.

:

:
Case No. C2-06-896
JUDGE ALGENON L. MARBLEY Magistrate Judge Terence P. Kemp

ORDER

This matter is before the Court on Plaintiffs Northeast Ohio Coalition for the Homeless’

(“NEOCH”) and Service Employees International Union, Local 1199's (“SEIU”) (collectively

“Plaintiffs”) unopposed Motion for Reconsideration of the July 28, 2009 Opinion and Order

awarding attorneys’ fees and costs. (Doc. No. 204.) In that Motion, Plaintiffs request that the

fees and costs awarded in the Court’s July 28, 2009 Order be increased to include fees and costs

generated by Attorney Subodh Chandra for his work on this case during the 2006 election

season. For the reasons set forth below, this Court GRANTS Plaintiffs’ Motion to Reconsider

and revises it previous fees and costs award as explained below.

Case: 2:06-cv-00896-ALM-TPK Doc #: 205 Filed: 07/30/09 Page: 2 of 5 PAGEID #: 4959
On January 4, 2008, Plaintiffs filed their First Motion for Attorneys’ Fees and Costs, seeking fees and costs for work performed in this case during the 2006 election season. (Doc. No. 96.) That motion was supported by the Declarations of Caroline Gentry, Subodh Chandra, and H. Ritchey Hollenbaugh setting forth the fees and costs requested. In an Opinion and Order dated September 30, 2008. Ne. Ohio Coal. for the Homeless v. Brunner, No. 2-06-896, 2008 WL 4449514, at *5-8 (S.D. Ohio Sept. 30, 2008), this Court held that Plaintiffs were entitled to attorneys’ fees and costs, but reserved the issue of what constituted reasonable fees and costs for a subsequent hearing. Id. at * 9-10. The Court requested supplemental briefing on the reasonableness of fees and costs relating to the 2006 work.
On January 20, 2009, Plaintiffs filed a Supplemental Brief on what constituted a reasonable fee and costs award for the 2006 work, accompanied by two new affidavits—one from Caroline Gentry and one from H. Ritchey Hollenbaugh—setting forth the fees and costs requested. (Doc. Nos. 176, 177, and 178.) The Plaintiffs failed a new affidavit from Subodh Chandra to their supplemental fee brief. On that same day Plaintiffs filed a Second Motion for attorneys fees and costs relating to work performed to secure two Consent Orders during the 2008 election season. The Second Motion for Attorneys’ Fees and Costs was accompanied by three affidavits—one from Caroline Gentry, one from H. Ritchey Hollenbaugh, and one from Subodh Chandra—setting forth the fees and costs requested for the 2008 work.
On July 28, 2009, the Court granted Plaintiffs’ motions for fees and costs relating to both the Supplemental Brief on what constituted a reasonable fee award for work performed in 2006 and the Second Motion for fees and costs relating to the 2008 election season. The Court awarded a combined fee and costs award for the 2006 and 2008 work of $401,905.50 in attorneys’ fees and $29,468.55 in costs and expenses, for a total of $431,374.05.
-2-

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The July 28, 2009 award did not include fees or costs generated by Attorney Subodh Chandra during the 2006 election season because the Plaintiffs’ Supplemental Brief did not include a declaration by Mr. Chandra setting forth his 2006 fees and costs. The Court considered the supplemental briefing controlling and, therefore, did not refer back to Mr. Chandra’s previous declaration. Moreover, because the Supplemental Brief failed to state the actual amount of fees and costs requested by Plaintiffs’ counsel and instead only requested “that this Court grant them a full lodestar fee award at the rates and hours set forth in the declarations of counsel” the Court relied on the two accompanying affidavits, those of Ms. Gentry and Mr. Hollenbaugh and had no notice that the Plaintiffs were requesting additional fees related to Mr. Chandra’s 2006 work.
Plaintiffs now move the Court to revise its award to include Attorney Subodh Chandra’s fee and cost request relating to the 2006 election season work. They explain that they intended to rely on Mr. Chandra’s original declaration in support of their first motion for attorney’s fees and seek fees for Mr. Chandra’s 2006 work but that they inadvertently failed to inform the Court of their intention. Defendants do not oppose a revision of the fee and cost award to include Mr. Chandra’s 2006 work.
Under Federal Rule of Civil Procedure 54(b) this Court has the power “to reconsider interlocutory orders and to reopen any part of a case before entry of final judgment.” Rodriguez v. Tenn. Laborers Health & Welfare Fund, 80 F.App’x 949, 959 (6th Cir. 2004). Generally, a motion for reconsideration is only warranted when there is (1) an intervening change of controlling law; (2) new evidence available; or (3) a need to correct a clear error or prevent manifest injustice. Id. The Court finds that Plaintiffs’ motion to reconsider should be granted because refusing to grant Mr. Chandra fees and costs because of what amounts to a filing
-3-

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oversight would work a manifest injustice. Accordingly, the Court adopts the reasoning and analysis set forth in its July 28, 2009 Order and finds that, for the reasons set forth in that Order, Mr. Chandra’s fees and costs relating to the 2006 Consent Orders are recoverable. Therefore the Court will revise its fees and costs award as set forth below.
In his declaration Mr. Chandra requests $96,641.25 in attorney’s fees and $527.06 in costs. (Doc. No. 96, Ex. 2.) Based on a review of the billing entries attached to Mr. Chandra’s declaration, the Court deducts $6000 from Mr. Chandra’s fee request because that figure represents work relating the 2006 Temporary Restraining Order.1 According to Plaintiffs’ representation to the Court, they do not seek fees based on their work on the 2006 TRO. (Doc. No. 102, Pfs.’ Response in Opp’n 12 (“Plaintiffs did not rely on the TRO as a basis for their [First Motion for Attorney’s fees].”)) Therefore, the Court finds that deducting the hours expended by Mr. Chandra on the 2006 TRO is appropriate.
Accounting for that deduction, Mr. Chandra’s revised fee request is $90,641.25. Adding this sum to the revised combined lodestar figure calculated by the Court in the July 28, 2009 Order, Plaintiffs combined loadstar fee request (accounting for all deductions made by the Court) is $593,023.12 ($502,381.87 + $90,641.25 = $593,023.12). For the reasons detailed in the July 28, 2009 Order, the Court will apply a 20% reduction to the lodestar figure to account for Plaintiffs’ meaningful, but less than total, success. This results in a total fee award of $474,418.50 ($593,023.12 x 20% = $118,604.62; $593,023.12 - $118,604.62 = $474,418.50).
1 The $6,000 figure is comprised of $1800 (6 hours) logged by Chandra on October 23, 2006 and $4,200 (14 hours) logged on October 26, 2006 that the Court finds were spent preparing for and attending the Temporary Restraining Order proceedings before this Court. See Doc. No. 96 Ex. 2 Chandra Decl. 11, 12.)
-4-

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Turning to the costs award, adding in Mr. Chandra’s 2006 costs, the resulting combined costs and expenses award is $29,995.61 ($29,468.55 + $527.06 = $29,995.61).
IV. CONCLUSION For the foregoing reasons Plaintiffs Motion for Reconsideration (Doc. No. 204) is GRANTED. The Court hereby REVISES its July 28, 2009 Order awarding fees and costs to include Attorney Subodh Chandra’s 2006 fees and costs. The resulting combined revised award for Plaintiffs First and Second Motions for Attorneys’ Fees and Costs is as follows: $474,418.50 in attorneys’ fees and $29,995.61 in costs and expenses, for a total of $504,414.11. IT IS SO ORDERED.

DATED: July 30, 2009

s/Algenon L. Marbley ALGENON L. MARBLEY United States District Court Judge

-5-

 
 Case: 2:06-cv-00896-ALM-TPK Doc #: 210 Filed: 04/19/10 Page: 1 of 6 PAGEID #: 4970

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

EASTERN DIVISION 


THE NORTHEAST OHIO COALITION FOR THE HOMELESS, et ai.,
Plaintiffs,

Case No. C2-06-896 Judge Algenon Marbley

vs.

JENNIFER BRUNNER, in her official capacity as Secretary of State of Ohio,

Defendant.

STATE OF OHIO

Intervenor-Defendant

CONSENT DECREE 

Plaintiffs Northeast Ohio Coalition for the Homeless ("NEOCH"), the Columbus Coalition for the Homeless ("CCH"), (the "Coalitions"), Kyle Wangler ("the Individual Plaintiff') and the Service Employees International Union, Local 1199 ("SEIU") have brought this action against Defendant Secretary of State and Intervenor-Defendant State of Ohio (collectively "Defendants"). In addition, Plaintiff-Intervenor Ohio Democratic Party has filed a Complaint in this action against the Defendants with respect to provisional ballot issues.
Plaintiffs have alleged that the Individual Plaintiff and some of the Coalitions' members lack the identification required by the Ohio Voter ID laws to cast a regular ballot on Election Day and, further, that the Ohio Provisional Ballot Laws have been and will be applied differently and unequally by Ohio's 88 Boards of Elections. Plaintiffs allege that they are therefore deprived of the equal protection of the laws and due process. Plaintiffs have further alleged that the Ohio Voter ID Laws impose an unlawful poll tax because the State of Ohio does not provide free State of Ohio identification cards and because homeless voters are unable to provide other acceptable forms of identification since such identification must contain proof of a current address.
The Court granted in part and denied in part the Defendants' motion to dismiss the claims in Plaintiffs' initial Complaint. The remaining claims in that Complaint, as well as the new claims in the Supplemental Complaint, are brought solely under federal law, namely, under the Equal Protection and Due Process Clauses of the Fourteenth Amendment and the Twenty-Fourth Amendment to the United States Constitution.

Case: 2:06-cv-00896-ALM-TPK Doc #: 210 Filed: 04/19/10 Page: 2 of 6 PAGEID #: 4971
The parties, desiring that this action be settled by an appropriate Consent Decree ("Decree") and without the burden ofprotracted litigation, agree to the jurisdiction of this Court over the parties and the subject matter of this action. Subject to this Court's approval ofthis Decree, and subject to the continuing validity of this Decree if it or its terms are challenged in any other court, the parties waive a hearing and findings of fact and conclusions of law on all issues, and further agree to the entry of this Decree as final and binding among and between themselves as to the issues raised in the Plaintiffs' Complaint and Supplemental Complaint, and the matters resolved in this Decree.
This Decree, being entered with the consent of the parties, shall in no way constitute an adjudication or finding on the merits of Case No. 2:06-CV-896, nor be construed as an admission by the Defendants of any wrongdoing or violation of any applicable federal or state law or regulation.
In resolution of this action, the parties hereby AGREE to, and the Court expressly APPROVES, ENTERS and ORDERS, the following:
I. PURPOSES OF THIS DECREE
1. The purposes of this Decree are to ensure that:
a. The fundamental right to vote is fully protected for registered and qualified voters who lack the identification required by the Ohio Voter ID Laws, including indigent and homeless voters-such as the Individual Plaintiffs and certain members of the Coalitions-who do not have a current address and cannot readily purchase a State of Ohio ID Card;
b. These voters are not required to purchase identification as a condition to exercising their fundamental right to vote and have their vote be counted;
c. The legal votes cast by these voters will be counted even if they are cast by provisional ballot on Election Day;
d. These voters will not be deprived of their fundamental right to vote because ofdiffering interpretations and applications ofthe Provisional Ballot Laws by Ohio's 88 Boards of Elections;
e. These voters will not be deprived of their fundamental right to vote because of failures by poll workers to follow Ohio law. For purposes of this Decree poll worker error will not be presumed, but must be demonstrated through evidence; and
f. All legal votes that are cast by indigent and homeless voters on Election Day will be counted.

Case: 2:06-cv-00896-ALM-TPK Doc #: 210 Filed: 04/19/10 Page: 3 of 6 PAGEID #: 4972
II. PARTIES BOUND BY DECREE.
2. This Order shall be binding upon the Defendants and their employees, agents and representatives. The Secretary of State will issue Directives to the Boards of Elections to follow this Decree, and will use her best efforts to enforce the Decree and all related Directives if put on notice of any alleged violations.
3. The parties recognize that Article VI, Clause 2 ofthe United States Constitution provides that "[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof; ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
III. GENERAL INJUNCTIVE RELIEF.
4. The Court ADOPTS and annexes hereafter Directive 2008-80 as an Order of this Court.
5. Defendant Secretary of State, her agents, employees and representatives will instruct Ohio's county Boards ofElections to adhere to the following rules regarding the casting and counting of provisional ballots for persons without identification other than a social security number:
a. Boards of Elections must count the provisional ballot cast by a voter using only the last four digits of his or her social security number as identification if all of the following conditions are met:
1. The individual who cast the provisional ballot is registered to vote;
11. The individual is eligible to cast a ballot in the precinct and for the election in which the individual cast the provisional ballot;
iii. The provisional ballot affirmation includes a statement that the individual is registered to vote in the precinct in which the provisional ballot was cast and a statement that the individual is eligible to vote in the election in which the provisional ballot was cast;
iv. The individual's name and signature appear in the correct place on the provisional ballot affirmation form, unless the voter declined to execute the affirmation and the poll workers complied with their statutory duties under R.C. 3505.182 and R.C. 3S0S.181(B)(6) when a voter declines to execute the affirmation;
v. The signature ofthe voter substantially conforms to the signature contained in the Board of Election's records for that voter;

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VI. The provisional ballot affirmation includes the last four digits of that voter's social security number, which is not found to be invalid;
vii. The individual's right to vote was not successfully challenged;
Vlll. The individual did not already cast a ballot for the election in which the individual cast the provisional ballot; and
IX. Pursuant to R.C. 3505.183(B)(2), the Board of Elections determines that, in addition to the information included on the affirmation, there is no additional information for determining ballot validity provided by the provisional voter or to the Board of Elections during the ten days after the day of the election that casts doubt on the validity ofthe ballot or the individual's eligibility to vote.
b. Boards of Elections may not reject a provisional ballot cast by a voter, who uses only the last four digits ofhis or her social security number as identification, for any of the following reasons:
1. The voter provided the last four digits of a Social Security Number but did not provide a current driver's license, state issued identification, or other document which serves as identification under Ohio law;
11. The voter did not provide a date ofbirth;
iii. The voter did not provide an address that is tied to a house, apartment or other dwelling provided that the voter indicated that he or she resides at a non-building location, including but not limited to a street comer, alley or highway overpass located in the precinct in which the voter seeks to cast a ballot and that the non­ building location qualifies as the individual's voting residence under R.C. 3503.02;
iv. The voter indicated that he or she is homeless;
v. The voter cast his or her provisional ballot in the wrong precinct, but in the correct polling place, for reasons attributable to poll worker error;
vi. The voter did not complete or properly complete and/or sign the provisional ballot application for reasons attributable to poll worker error; or
V11. The poll worker did not complete or properly complete and/or sign the provisional ballot application witness line and/or the

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provisional ballot affirmation form, except for reasons permitted by the governing statutes.
c. Boards of Elections must observe the following rules regarding the delegation ofprocessing provisional ballots, and determining their validity, to board staff:
1. Ultimately, the members of Boards of Elections must determine the validity of all votes cast in an election and must certify the results of all elections. However, nothing in Ohio law requires that the members of a Board of Elections must personally complete all tasks associated with preparing for that certification.
11. Thus, Boards of Elections may, under a policy adopted by the Board, delegate the processing and some aspects of counting provisional ballots to board staff. Such processing must be done in bipartisan teams.
iii. If a Board of Elections delegates the processing of provisional ballots, it must first adopt a policy setting forth procedures for the processing of provisional ballots. Under that policy, board staff responsible for processing provisional ballots must make a recommendation to the Board as to the eligibility of each provisional ballot cast in the county, either on an individual basis, or as to groups or categories of similarly situated provisional ballots.
iv. Ultimately, the members ofBoard of Elections must determine the eligibility or ineligibility of all provisional ballots cast within the county in accordance with Ohio law. Boards may not delegate this task.
v. Each Board of Elections must then cause the ballots to be counted by board staff, and must include the tabulation ofthat count in its official canvass ofthe election results and, to the extent required, its certification ofthe election results to the Secretary of State.
IV. IMPLEMENTATION.
6. Defendant Secretary of State shall issue a Directive to all Boards of Elections that sets forth the text of the injunctive relief described above.
7. Before every primary and general election, Defendant Secretary of State shall remind Boards ofElections that they must comply with the injunctive relief described above and shall distribute the text of the injunctive reliefto all Board Members, Directors and Deputy Directors.

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8. In every location where provisional ballots are processed after an election, Boards of Elections shall post a notice in a conspicuous place that contains the text of the injunctive relief described above in large, capitalized and bolded type.
V. CONTINUING VALIDITY.
9. This Decree shall remain in effect until June 30, 2013.
10. If the State of Ohio repeals or amends any portion of the Ohio Voter ID Laws or Provisional Ballot Laws that are identified in the Complaint, Defendant Secretary of State shall file a notice with the Court within 30 days of passage of the law regarding such changes. Those changes in Ohio law will supersede this consent decree and this decree will be automatically amended by operation of law to include those statutory changes.
11. Any ofthe parties may file a motion with the Court to modify, extend or terminate this Decree for good cause shown.
VI. MISCELLANEOUS PROVISIONS.
12. Within sixty (60) days after entry of this Decree, Defendant Secretary of State shall pay to counsel for Plaintiffs the attorneys' fees that were previously awarded by this Court, as follows: $321,942.15.51 to Porter Wright Morris & Arthur LLP, $99,722.58 to Carlile Patchen & Murphy LLP, and $82,749.38 to The Chandra Law Firm, LLC.

Case: 2:06-cv-00896-ALM-TPK Doc #: 210-1 Filed: 04/19/10 Page: 1 of 7 PAGEID #: 4976

JENNIFER BRUNNER
OHIO SECRETARY OF STATE

180 EAST BROAD STREET. 16TH FLOOR

COLUMBUS. OHIO 43215 USA

TEL; 1-877-767-6446

FAX: 1-614-644-0649

WWW.SOS.STATE.OH.U5

DIRECfIVE 2008-80 September 5, 2008
TO: ALL COUNTY BOARDS OF ELECTIONS MEMBERS, DIRECfORS, DEPUTY DIRECfORS
RE: Voter Identification Requirements
This directive is intended to clarify Ohio's voter identification requirements as applied by Ohio's boards of elections, Ohio election officials and poll workers in Ohio. This directive supersedes Section I of Directive 2007-06.
All boards of elections shall implement the instructions provided in this directive.
The Secretary of State's office has incorporated the instructions contained in this directive in its Poll Worker Manual ofInstructions and its Poll Worker Quick Reference Guide, which is provided to boards of elections and referenced in Directive 2008-77. Presiding judges must be provided with a copy of this directive, and the Secretary of State's office offers further assistance to boards of elections in interpreting or applying this directive through the elections attorneys at the Secretary of State's office assigned to county boards of elections.
Election Day RcguJarVoting ID Requirements R.C. 3505.18 requires every voter, upon appearing at the polling place to vote on Election Day, to announce his or her full name and current address and provide proof of the voter's identitlJ. The forms of identification that may be lIsed by a voter who appears at a polling place to vote on an Election Day include:
1. His or her current and valid Ohio driver's license; or 2. His or her current and valid photo identification card issued by the State of
Ohio or the United States government; or 3. His or her military identification ("military ID"); or 4. An original or copy of a cw'rent utility bill; or 5. An original or copy of a current banI{ statement; or 6. An original or copy of a CUiTent paycheck; or 7. An original or copy of a cUl'rent govermnent check; or 8. An original or copy of a cUl'I'ent other government document.
."

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(NOTE: An Ohio driver's license or Ohio issued photo identification card may be used that does not contain the voter's address appearing in the records of the board of elections. In such case, a poll worker must record the last 4 digits of the voter's driver's license or Ohio ID card number in polling place records as instructed by the board of elections. Also, beginning with the November 2008 general election, pursuant to Am. Sub. H.B. 562, military ID's will no longer have to contain the name or address of the voter offering the military ID as identification; poll workers must, however, be able to ascertain that the person offering the military ID as identification is the person he or she purports to be and has the qualifications to vote in the election in question.)
Please see the definitions section ofthis Dil'ectivefor clarification on such terms as "current" andfor more information about the abovefol'Tns ofidentification.
If an elector appearing on an Election Day to vote in person does not have, or fails or refuses to provide, any of the acceptable forms of proof of identity outlined above, that elector may cast a provisional ballot pursuant to R.C. 3505.181. A discussion of instructions for provisional voting appears in Directive 2008-81.
Please see addendum NO.1 to this directive. That addendum is aflow chart that poll workers may use to assist them in determining whether a particular voter has provided sufficient identification to vote a regular ballot or must vote a provisional ballot. Four copies of this addendum must be included in the precinct/polling location kitfor Election Day.

Absentee ("Early") Voting ID Requirements
Any qualified Ohio elector whose current voting residence address is the address appearing in the records of the board of elections for that voter may request an absent voter's ballot \vithout stating a reason. A detailed discussion of absentee voting appears in Directive 2008-82.
The Ohio General Assembly has implemented somewhat different and perhaps more simplified voter ID requirements for absentee voting (whether by mail or in person) than for Election Day voting. Absentee voters are required to provide ID at two distinct points in the voting process. First, all absentee voters must provide ID at the time they apply for their absentee ballots. Second, all absentee voters must also provide ID at the time they vote and return their absentee ballots.
A voter is not required to provide identical forms of required ID at both points in time discussed above as long as both forms of ID provided are acceptable forms of ID as enumerated below. The forms of ID that may be used by an absentee voter include:
1. His or her Ohio driver's license number; or 2. The last four digits ofhis or her Social Security number; or 3. A copy ofhis or her current and valid Ohio driver's license; or 4. A copy of his or her photo identification card issued by the State of Ohio or
the United States government; or 5. A copy ofhis or her a military identification; or 6. An original or copy of a utility bill; or

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7. An original or copy of a bank statement; or 8. An original or copy of a paycheck; or 9. An original or copy of a government check; 01' 10.An original or copy of another government document.
(NOTE: Beginning \,~th the November 2008 general election, pursuant to Am. Sub. H.B. 562, military ID's \\~ll no longer have to contain the name or address of the voter offering the military ID as identification; poll workers must, however, be able to ascertain that the person offering the military ID as identification is the person he or she purports to be and has the qualifications to vote in the election in question.)
If an elector or voter who desires to vote absentee provides the identification information contained in numbers 1 or 2. above, he or she is not required also to pro~de any of the identification documentation described in numbers 3 through 10 above.
Please seethe definitions section ofthis Directive for clarification on such terms as "current" andfor more information about the above forms ofidentification.

Definitions Relating to Voter ID Am. Sub. H.B. 3 did not define many of the terms used in the voter ID requirements contained in that law. To ensure uniform application of those requirements throughout Ohio, and under my authority under R.C. 3501.05, the follO\~ng terms are defined, as used in relation to voter ID:
Current "Current" means the document was issued on a date within one year immediately preceding the date of the election at which the voter seeks to vote, or has on it an expiration date which has not passed as of the date of the election in which the voter seeks to vote.
Conform For the purposes of verifying the identity of the voter by name, "conform" means that the document shall contain the same last name and the same first name or derivative of the first name as the first and last names appearing in the poll list or signature poll book. When a middle name or initial can be matched, the election official or poll worker should also verify the middle name or initial. Minor misspellings shall not preclude the use of a proffered ID for purposes of voting.
For the purposes of verifying the identity of the voter by address, "conform" does not mean an exact match, but rather, the form and content of the address can reasonably be determined to match the form and content of the address appearing in the poll list or signature poll book.
Photo identification R.C. 3501.01(AA) defines "photo identification" and requires ALL of the following:

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o The photo identification has been issued by either the government of the United States or the State of Ohio. Drivers' licenses and photo ID cards from other states or countries are not acceptable forms of identification.
o The photo identification shows a photograph of the individual to whom it was issued, and the photograph appears to be the person who has presented the photo ID.
o The photo identification includes an expiration date that has not passed. o The photo identification shows the name of the individual to whom it was issued,
which shall conform to the name in the poll list or signature poll book for the person presenting the photo ID. o The photo identification shows the current address of the individual to whom it was issued, which shall conform to the address in the poll list or signature poll book. There are two exceptions, however. No voter shall be denied a regular ballot solely because his or her military ID or his or her Ohio driver's license or ID card does not provide his or her current address, or the address on his or her Ohio driver's license or ID card does not match that in the poll list or signature poll bool{. Note, in this case, the poll worker must accept one ofthese forms of photo ID to allow the individual to vote, but must record the last four digits of a driver's license or state ID number if the address on the ID does not match the address for the voter appearing in the poll list or signature poll book.
Please note that there are two numbers on an Ohio driver's license. The required number is the number located on the left hand side of the ID under the phrase "LICENSE NO." The correct number actually begins with letters. In contrast, the number located above the picture on an Ohio driver's license number is not the driver's license number and cannot be used to verifY the identity of a voter.
If an absentee voter provides the number above his or her picture and not the driver's license number, the board must notifY the voter of such error by telephone or in writing, within two business days of receiving the application or voted ballot. The voter so notified must be permitted to appear in person at the office of the board to provide the correct information. In the case of a returned absent voter's ballot, the voter shall have until the tenth day after the election to provide this information to enable his or her ballot to be counted.
MilitaryID
The General Assembly has not defined "Military identification." Generally speaking, an acceptable Military ID is an identification card issued by the United States Department of Defense to:
o An active duty member of any branch of the United States Armed Forces (Air Force, Army, Coast Guard, National Guard, Reserves, Joint Services, Marines, or Navy);
o A member of a reserve military unit;
o A retired military personnel; o A dependent of a military personnel;
o An ROTC student; or
o Some civilian government employees and contractors.
The ID presented must allow the election official to whom it is presented to verifY that the person presenting the ID is the person whom they purport to be, and thus, to verifY that the

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person presenting the ID has the qualifications to vote In the election at which the ID IS presented.
Specifically, as of August 2008, all Military IDs should indicate that they are a version of: o The Common Access Card ("CAC"), including Geneva Convention Identification Cards, Geneva Convention Accompanying Forces Cards, Identification and Privilege Cards, and Identification Cards; o DD Form 2 (such as DD Form 2A); or
o DD Form 1173.
All CACs look very similar; the slight variations in the form of the ID depend on the ID holder's status in the military and are not at issue for the purpose of voting.
DD Form 2 and DD Form 1173 identification cards are very different in appearance from the CACs, and there are several versions of each card that may look very different from one another. Examples of the various forms of CACs, DD Form 2S, and DD Form 1173s are included in Addendum No.2 to this directive.
Additional Points of Clarification Regal'ding Military IDs
o It does not matter what color a military ID is. The color of the Military ID simply indicates the status of the individual with the military (Inactive Reserve, ROTC, Reserve, Retired, Dependent, or Active).
o It also does not matter what branch of the military the voter is affiliated with, although the branch may be indicated on the ID.
o Expiration dates: a If the ID presented by a voter does have an expiration date on it (and most military IDs do), the election official revie\,~ng the ID should apply the definition of current contained in this directive, meaning that the ID is valid if the expiration date has not passed as of the date of the election in which the voter seeks to vote when he or she presents his or her ID. a If the expiration date has passed, the ID may not be used. a Military IDs for retired military personnel and reserve members of the military do not have an expiration date on them. Rather, those ID's indicate that they are valid for an indefinite period of time. For example, some military IDs may say "INDEF" where an expiration date should otherwise appear. Military ID's of this nature are valid for purposes of voting whenever presented by a voter.
Utility Bill
A "utility bill" includes, but is not limited to, water, sewer, electric, natural gas, heating oil, cable or satellite tele\~sion, internet, telephone or digital telephone, and cellular telephone service. A "bill" is a statement of fees owed for such services. A bill is sufficient even if it shows a zero (0) balance due. The utility bill presented for the purposes of identification must show that it was issued to the voter who has presented it. The utility bill must show the voter's name and current address, which must conform to the voter's name and address in the record of the board of elections, including the poll list or signature poll book and must be a current statement as defined in this directive. The bill may be an original or a copy of an original. Computer generated print-outs of electronically transmitted bills are also valid.

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Bank Statement
A "bank statement" includes, but is not limited to, a statement from any financial or brokerage institution that bears the name and current address of the voter presenting it for identification. The name and address of the voter that appears on the bank statement must conform to the voter's name and address in the record of the board of elections, including the poll list or signature poll book and must be a current statement as defined in this directive. The statement may be an original or a copy of an original. Computer generated print-outs of electronically transmitted statements are also valid.
Paycheck
A "paycheck" includes, but is not limited to, a paycheck, check stub or receipt provided for direct deposit of wages or earnings from any public or private employer and which bears the name and current address of the voter presenting it for identification. The name and address of the voter that appears on the paycheck must conform to the voter's name and address in the record of the board of elections, including the poll list or signature poll book and must be current as defined in this directive. The paycheck may be an original or a copy of an original. Computer generated print-outs of electronically transmitted check stubs or receipts are also valid.
Government Checl{
A "government check" includes, but is not limited to, a paycheck, check stub or receipt provided for direct deposit of funds issued by any political subdivision of this state, including the State of Ohio, or any political subdivision of or by another state or by the United States government that bears the name and current address of the voter presenting it for identification. The name and address of the voter that appears on the government check must conform to the voter's name and address in the record of the board of elections, including the poll list or signature poll book and must be current as defined in this directive. The check may be an original or a copy of an original. Computer generated print-outs of electronically transmitted check stubs or receipts are also valid.
Other Government Document
"Other government document" includes, but is not limited, to a document that is issued by a government office and that bears the name and current address of the voter presenting it for identification. The name and address of the voter that appears On the government document must conform to the voter's name and address in the record of the board of elections, including the poll list or signature poll book and must be current as defined in this directive. "Government office" includes any local (including county, city, township, and village governments), state, or federal (United States) government office, branch, agency, department, division, or other similar component, including a board, commission, public college or university or public community college, whether or not in Ohio. By way of example, this may include, but is not limited to, letters; bills for taxes and other similar obligations; hunting, fishing and marine equipment operator's licenses; license renewal notices and other notices; filing receipts; court papers; grade reports; or transcripts.

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Please note that R.C. 3505.18(A) does explicitly provide that an elector cannot use as proof of identity a notice that a board of elections mailed to that voter under R.C. 3501.19 or 35°3.19.

If you have questions about this directive, please contact your assigned elections counsel at 614466-2585.
Sincerely,

Jennifer Brunner

 
 Case: 2:06-cv-00896-ALM-TPK Doc #: 209 Filed: 04/19/10 Page: 1 of 2 PAGEID #: 4968

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

THE NORTHEAST OHIO COALITION

: Civil Action No. C2-06-896

FOR THE HOMELESS, et al.,

: Judge Algenon L. Marbley

Plaintiffs,

:

vs.

: STIPULATION OF DISMISSAL OF THE

JENNIFER BRUNNER, in her official

CLAIMS OF PLAINTIFF JAMES WISE

capacity as Secretary of State of Ohio, et al., : WITHOUT PREJUDICE

Defendants.

:

The parties hereby stipulate, pursuant to Rule 41(a)(1)(ii) of the Federal Rules of Civil Procedure, to a dismissal of Plaintiff James Wise’s claims against Defendants without prejudice. This dismissal does not affect the claims of the other Plaintiffs, which remain pending.

Respectfully submitted,

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

s/ Richard N. Coglienese Richard N. Coglianese, Trial Attorney (0066830) Assistant Attorney General Constitutional Offices Section 30 East Broad Street, 16th Floor Columbus, OH 43215 (614) 466-2872 / (614) 728-7592 Fax Richard.coglianese@ohioattorneygeneral.gov
ATTORNEYS FOR DEFENDANTS

Case: 2:06-cv-00896-ALM-TPK Doc #: 209 Filed: 04/19/10 Page: 2 of 2 PAGEID #: 4969 CERTIFICATE OF SERVICE
I hereby certify that on April 19th, 2010, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the counsel of record in this case.
/s Caroline H. Gentry Caroline H. Gentry (0066138) Attorney for Plaintiffs PORTER, WRIGHT, MORRIS & ARTHUR LLP One South Main Street, Suite 1600 Dayton, Ohio 45402 (937) 449-6748 / (937) 449-6820 Fax cgentry@porterwright.com
2
DAYTON/633557 v.01

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

NORTHEAST COALITION

:

FOR THE HOMELESS, et al.,

:

:

Plaintiffs,

:

:

v.

:

:

JENNIFER BRUNNER, in her official

:

capacity as Secretary of State, et al.,

:

:

:

:

Defendants.

:

Case No. 2:06-CV-896 JUDGE ALGENON L. MARBLEY

OPINION & ORDER I. INTRODUCTION This matter is before the Court on Plaintiffs Northeast Ohio Coalition for the Homeless’ (“NEOCH”) and Service Employees International Union, Local 1199’s (“SEIU”) (collectively “Plaintiffs”) Third Motion for Attorneys’ Fees and Costs (“Third Motion”) (Doc. 212). For the reasons set forth below the Plaintiffs’ Third Motion for Attorney Fees is GRANTED in part and DENIED in part.
II. FACTS A. Background On January 31, 2006, the Ohio General Assembly amended Ohio’s Election Code to require that voters provide one of several types of identification in order to cast a regular ballot in state and federal elections held in Ohio (“Voter ID Law”). On October 24, 2006, Plaintiffs

filed a thirteen-count complaint under 42 U.S.C. § 1983 against then Ohio Secretary of State J. Kenneth Blackwell challenging the constitutionality of several provisions of the Voter ID Law.
1.) Fall 2006 Election Season Litigation During the Fall of 2006, the Plaintiffs sought a temporary restraining order1 and a preliminary injunction relating to Defendants’ enforcement of certain provisions of the Voter ID Law. That litigation resulted in this Court’s entry of a Consent Order negotiated by the parties that applied to the 2006 election. Following the 2006 election, Plaintiffs believed that the Ohio Board of Elections (“Ohio BOE”) was improperly counting provisional ballots. Consequently, the parties negotiated an Agreed Enforcement Order, which the Court entered on November 15, 2007.
2.) First Motion for Attorney’s Fees The Court granted the Plaintiffs leave to request attorneys’ fees and costs expended during the litigation of the 2006 Consent Order and Agreed Enforcement Order (the “2006 Orders”). Accordingly, Plaintiffs filed their First Motion for Attorneys’ Fees on January 4, 2008. On February 27, 2008, Defendants responded with a Motion to Dismiss based on the grounds that: (1) the Plaintiffs lacked standing to challenge the constitutionality of the Voter ID Law and; (2) the Plaintiffs were not prevailing parties, and thus not entitled to attorneys’ fees with respect to the 2006 Orders. The Court dismissed six of the Plaintiffs thirteen claims for lack of standing, but granted Plaintiffs’ request for attorneys’ fees and costs in an Order dated September 30,
1 1 On October 26, 2006 Plaintiffs were granted a temporary restraining order (“TRO”) by this Court, the majority of which was stayed by an October 31, 2006 order of the Sixth Circuit.
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2008. Ne. Ohio Coal. for the Homeless v. Brunner, 2008 WL 4449514, at *5-8 (S.D. Ohio Sept. 30, 2008).
The Court held that the Plaintiffs lacked standing to bring, inter alia, Counts One and Two of their Complaint. Id. at *6-7. The Court also held that the Plaintiffs were prevailing parties with respect to the 2006 Orders and were, therefore, entitled to attorneys’ fees and costs. Id. at *9-10. The Court reserved for a subsequent hearing the issue of what constituted reasonable fees and costs given the degree of success the Plaintiffs had obtained. Id. at *10. The Court requested supplemental briefing on the reasonableness of fees. Pursuant to the Court’s order, the Plaintiffs filed a supplemental brief on January 20, 2009, and the Defendants filed their supplemental brief on February 27, 2009. Both the Plaintiffs and the Defendants moved for reconsideration of the September 30, 2008 Opinion.
3.) Attorneys’ Fees Appeal and Settlement In October of 2008, the Plaintiffs filed a motion for a preliminary injunction seeking to require the Ohio BOE to apply uniform procedures for counting provisional ballots. As a result of the parties’ negotiations regarding the preliminary injunction motion, the Court entered two orders (the “2008 Orders”). The Court’s October 24, 2008 Order set forth procedures that would be used in the counting and processing of provisional ballots. Similarly, on October 27, 2008, the Court ordered: (1) that provisional ballots cast by individuals who did not live in buildings would be counted; and (2) that provisional ballots could not be invalidated due to poll worker error. On January 20, 2009, the Plaintiffs filed their Second Motion for Attorneys’ Fees (Doc. 179). The Plaintiffs claimed that they were prevailing parties with respect to the 2008 Orders and
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were entitled to attorneys’ fees and costs. The Defendants opposed this motion. On July 28, 2009, this Court granted the Plaintiffs’ First and Second Motions for Attorney Fees and Costs. Though granting the Plaintiffs’ motions for attorneys’ fees, the Court concluded that a 20% reduction in fees was appropriate in light of the Plaintiffs’ meaningful, but less than total, success (Doc. No. 203, p. 22). The Court, therefore, reduced the Plaintiffs’ total lodestar fee request of $502,381.87 by 20%. This reduction resulted in a fee award of $401,905.50. The Court also awarded the Plaintiffs’ costs and expenses in the amount of $29,468.55. Thus, the total award to the Plaintiffs was $431,374.05 (Doc. 203, p. 23).
Two days later, the Plaintiffs filed an unopposed Motion for Reconsideration of this attorneys’ fees and costs award (Doc. 205). In that motion, the Plaintiffs requested an increased award to include fees and costs that Subodh Chandra (“Chandra”), attorney for the Plaintiffs, generated for his work during the 2006 election season. The Court granted that motion and revised its previous award to include Chandra’s fees and costs, which resulted in a revised fees award of $474,418.50. The Court increased the costs award by $4,527.06 to account for Chandra’s incurred costs, resulting in a revised total cost award of $29,995.61. Thus, the revised fees and costs award granted to the Plaintiffs totaled $504,414.11 (Doc. 205).
Subsequently, the Defendants appealed this fees and costs award to the Sixth Circuit (Doc. 207). While the appeal was pending, the parties began to negotiate a settlement to this litigation under the direction of the Sixth Circuit mediator. These negotiations eventually led this Court to sign a Consent Decree (the “Decree”) on April 19, 2010 (Doc. 210). The Decree awarded Plaintiffs the total fees and costs amount of $504,414.11 (Doc. 210, p. 6).
On June 3, 2010, the Plaintiffs filed a Third Motion for Attorneys’ Fees and Costs,
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arguing that additional fees and costs should be granted for work their attorneys performed: (1) briefing and arguing their first two motions for attorneys’ fees; (2) during the appeal of this Court’s decision to grant those motions; and (3) negotiating the Decree that terminated the litigation (Doc. 212). On August 9, 2010, the Defendant filed a Response opposing the Plaintiffs’ Third Motion because the Decree was “final and binding” and arguing that the Plaintiffs’ requested fees were unreasonable (Doc. 219). This matter is currently before the Court.
III. LEGAL STANDARDS Under the Civil Rights Attorney’s Fees Award Act of 1976, 42 U.S.C. § 1988 (the “Fees Act”), a court can award reasonable attorneys’ fees to the prevailing party in a civil rights action brought under 42 U.S.C. § 1983. Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-92 (1989); see also DiLaura v. Twp. of Ann Arbor, 471 F.3d 666, 670 (6th Cir. 2006. After determining a party is entitled to an attorneys’ fees award, the Court must then determine whether the hours claimed by the petitioner are reasonable. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). When making a reasonableness determination, the Court should first calculate the “lodestar” amount, a multiple of the number of hours reasonably expended in the litigation and the reasonable hourly rate. Imwalle v. Reliance Med. Prods., 515 F.3d 531, 551 (6th Cir. 2008) (citing Hensley, 461 U.S. at 433). The party seeking fees bears the burden of proving that the number of hours expended was reasonable. Granzeier v. Middleton, 173 F.3d 568, 577 (6th. Cir. 1999). Once a party has established that the number of hours and the rate claimed are reasonable, the lodestar amount is presumed to be the reasonable fee to which counsel is entitled. Id. at 552 (citing Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546
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(1986)). The petitioning attorney has an obligation to weed out hours that are excessive, redundant, or otherwise unnecessary from his or her fee request. Hensley, 461 U.S. at 434. Fees incurred in “preparation of an original fee petition” are supplemental “fees for fees.” Such supplemental hours should not exceed three percent of the award (the “Three Percent Rule”) in the main case when the fees issue is decided without a trial or five percent of the award in the main case when there is a trial. Coulter v. Tennessee, 805 F.2d 146, 151 (6th Cir. 1986); Bank One v. Echo Acceptance Corp, 2009 U.S. Dist. LEXIS 35633, at *5 (S.D. Ohio Apr. 10, 2009).
IV. LAW & ANALYSIS 1. Entitlement to a Fee Award The Plaintiffs argue they are prevailing parties under the Fees Act and are entitled to fees for work performed from January 2009 until April 2010 with respect to: (1) the briefing and argument of their prior motions for fees and costs; (2) the settlement of the State of Ohio’s appeal of this Court’s award of fees; and (3) and the negotiation of the Decree. The Defendant contests that because the Decree was meant to be final, the Plaintiffs waived their right to collect further attorneys’ fees after signing the Decree. A party waives its right to collect further fees if the parties intended a settlement to be a final disposition of all claims. Jennings v. Metro. Gov’t. of Nashville, 715 F.2d 1111, 1114 (6th Cir. 1983). Intent is normally an issue of fact unless the Court determines only one possible inference can be drawn from the record. Id. at 1114. A settlement in full does not require that parties reach a separate agreement on each aspect of the claim; thus, silence in an agreement regarding attorneys’ fees is not controlling in making an award entitlement determination. Id.
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In this case, both parties agree that the Decree does not expressly mention an award of attorneys’ fees covering the time period Plaintiffs’ attorneys worked between January 21, 2009 and April 19, 2010 to negotiate and finalize the Decree (Doc. 212, 219). The Decree, therefore, is silent as to the issue of attorneys fees requested in the Plaintiffs’ Third Motion. Pursuant to Jennings, this silence is not controlling; rather, the question becomes whether the parties intended the Decree to be a final disposition of all claims, thus waiving the Plaintiffs’ right to collect further fees.
The Defendants point to specific language in the Decree to prove the agreement’s finality under the Jennings standard. First, the Defendants cite the Decree’s preamble, which states that the parties entered into the Decree negotiations “desiring that this action be settled ...without a burden of protracted litigation” (Doc. 219, p. 2). The Defendants also argue language stating that the Decree was “final and binding” as to “the issues raised in the Plaintiffs’ Complaint and Supplemental Complaint,” which included attorneys’ fees, is evidence of the Decree’s finality. Further, the Defendants cite the Decree’s introduction, which described the document as being “in resolution of this action,” as evidence the Decree was meant to be a final settlement of all claims, thereby waiving the Plaintiffs’ right to receive further fees (Id.).
The Defendant likens the foregoing portions of the Decree to language the Sixth Circuit has found to be “comprehensive” enough for the court to infer that the parties intended the settlement to be final. See McCuiston v. Hoffa, 202 Fed.Appx. 858, at 865 (6th Cir. 2006). The consent judgment in McCuiston stated, “[t]his is a final order of the court, disposing of all remaining claims in this action.” The issue of attorneys’ fees was neither discussed during the settlement proceedings nor included in the final judgment. Id. at 863. While recognizing this silence, the Sixth Circuit held that the above-cited language led to the single inference that the
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parties intended for the agreement to be final, precluding an award of further attorneys’ fees. Id. at 865.
The Court finds language in the Decree at issue he re, however, does not lead to a sim ilar inference of finality. The Decree in thi s case, unlike the consent judgm ent in McCuiston that resolved “all remaining claims in this action,” expressly restricts its scope to the issues raised in the Plaintiffs’ Complaint and Supplemental Complaint. McCuiston, 202 Fed.Appx. at 861; Doc. 210, p. 2. The Decree’s language is not as expansive as that in the McCuiston consent judgment, an indication that the parties to the present action did not intend the Decree to be final. Additionally, in the Decree herein the parties agreed to allow fro modification and extension of the agreement for good cause (Doc. 210, p.6). By contrast, the consent judgm ent in McCuiston did not allow the parties to seek to modify or to extend the terms of the agreement and contained no qualifiers as to the scope of the consent judgment’s terms. Thus, McCuiston is distinguishable from the case sub judice and the record here leads to thesingle inference that the parties didnot intend the Decree to be a final settlement of all claims. The Plaintiffs, therefore, did not waive their right to f urther attorneys’ fees and are entitled to collect an additional fee award.
2. The Fee Award The Plaintiffs seek an award to cover fees related to: (1) the briefing and argument of Plaintiffs’ prior motions for fees and costs; (2) opposition to and settlement of the State of Ohio’s appeal of this Court’s award of fees; and (3) the negotiation of the Consent Decree. The Defendants challenge the Plaintiffs’ requested fees award on two grounds. First, they argue that the fees requested are unreasonable. In the alternative, Defendants claim that even if the
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Plaintiffs’ fee request is reasonable, this Court should cap all three categories of fees the Plaintiffs have requested pursuant to the Three Percent Rule (Doc. 219, p. 13). Thus, the Court has two issues to decide regarding the Plaintiffs’ fee award: (1) whether the requested fee award is reasonable; and (2) which of the requested fees are “fees for fees” and thus subject to the Three Percent Rule cap.
a. Hours Reasonably Expended A court determines reasonableness by performing a lodestar analysis. A lodestar amount refers to the multiple of the number of hours reasonably expended in the litigation and the reasonable hourly rate. Imwalle v. Reliance Med. Prods., 515 F.3d at 551. If reductions to the requested number of hours are appropriate, a court has the discretion to utilize a simple acrossthe-board reduction by a certain percentage as an alternative to line-by-line reductions. Project Vote v. Blackwell, 2009 U.S. Dist. LEXIS 34571, at *6 (N.D. Ohio Mar. 31, 2009) (citing Alliance Int’l, Inc. v. United States Customs Serv., 155 Fed. Appx. 226, 228 (6th Cir. 2005). Three of Plaintiffs’ attorneys are claiming fees in the present action: (1) Chandra of The Chandra Law Firm, LLC (“Chandra Law Firm”); (2) Caroline Gentry (“Gentry”) of Porter, Wright, Morris, & Arthur LLP (“Porter Wright”); and (3) H. Ritchey Hollenbaugh (“Hollenbaugh”) of Carlile Patchen & Murphy LLP (“Carlile Patchen”). The Chandra Law Firm submits they incurred $29,750 worth of fees in briefing the original fees request, defending against the State’s appeal of this Court’s fee award, and in settling the Consent Decree. Porter Wright submits they incurred $27,732.50 in fees for these three phases. Carlile Patchen claims their fees totaled $28,441.05. The Defendants challenge the reasonableness of these fees on several grounds and ask for a reduction in the Plaintiffs’ requested fees. First, they claim the
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Plaintiffs “overlawyered” the issues argued in the Third Motion, resulting in “excessive, redundant, or otherwise unnecessary” fees that reflected no “billing judgment” (Doc. 219, p. 15). Specifically, the Defendants question the need for three different law firms to work on this matter (Id. at p.16). Use of one or more lawyers, however, is a common practice that can often result in a more efficient distribution of work. Gautreax v. Chicago Hous. Auth., 491 F.3d 649, 661 (7th Cir. 2007) (citing Kurowski v. Krajewski, 848 F.2d 767, 776 (7th Cir. 1988)). Though there is no “hard-and-fast” rule as to how many lawyers can be at a meeting or spend time discussing a project at one time, attorneys must make a good faith effort to exclude hours that are “excessive, redundant, or otherwise unnecessary.” Id. After reviewing the evidence the Plaintiffs have submitted in support of their Third Motion, this Court finds that the Plaintiffs did make such an effort to apply “billing judgment” principles to their request for fees (Docs. 213-15). Though more than one attorney might have worked on projects related to the Third Motion and the settlement proceedings, the fees all three firms have listed reflect work that is reasonably related to their pursuit of fees. Hence, the Defendants’ argument that the Plaintiffs’ attorneys’ work was redundant because they were doing the same work fails and this objection does not warrant a reduction to the requested fee award.
Similarly, the Defendants argue that the motions for attorneys’ fees, the appeals process, and the settlement negotiations did not involve issues that were complex enough to warrant the work of three separate law firms and thus the court should find the fees requested to be redundant. Though courts are “alert to needless duplication of efforts by multiple law firms,” a court will review the evidence provided to determine whether such duplication actually took place. Thirty Eight St .v. Chatur Corp., 2010 U.S. Dist. LEXIS 75247 (N.D. Ohio July 27, 2010).
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The record in the present case shows no such duplication. Though attorneys from more than one firm collaborated on the same project, the evidence the parties have presented demonstrates an attempt at cost-efficient allocation of work among the three attorneys. Courts have previously found such efficient allocation to be reasonable. Gautreax v. Chicago Hous. Auth., 491 F.3d 649, 661 (7th Cir. 2007) (citing Kurowski v. Krajewski, 848 F.2d 767, 776 (7th Cir. 1988)). Additionally, though the Defendants argue that this is a “relatively straightforward §1988 attorneys’ fee issues,” the Plaintiffs’ request for attorneys’ fees has had three distinct phases: (1) the briefing and argument of Plaintiffs’ prior motions for fees and costs; (2) opposition to and settlement of the State of Ohio’s appeal of this Court’s award of fees; and (3) the negotiation of the Consent Decree. Preparing for these three distinct proceedings makes this attorneys’ fee request less straightforward than the Defendants suggest and justifies the work of multiple law firms. Accordingly, the Court finds these objections do not warrant a reduction to the fee award.
Additionally, the Defendants challenge the Plaintiffs’ inclusion in their requested fee award of “non-compensable tasks” that did not “contribute in any meaningful way to the litigation” (Doc. 219, p.17). Specifically, the Defendants challenge the Plaintiffs’ request for fees related to their efforts to “track down” and “locate” their client and “working with the investigator” (Id.). Though non-compensable tasks are generally not reasonable fees, fees the Plaintiffs incurred to locate their clients do not fall within the “non-compensable” category. Settling the Decree required determining whether the homeless clients who were plaintiffs authorized a settlement that would end the appellate process. Thus, the fact that two of the attorneys requested fees for their investigation efforts to locate these plaintiffs is not
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unreasonable, and the Defendant’s argument warrants no reduction to the Plaintiffs’ requested fee award.
Next, the Defendant argues the Court should reduce the Plaintiffs’ award because they failed to obtain “significant relief.” This argument, however, is misplaced. This Court has already found that the Plaintiffs were entitled to an attorneys’ fees award based on their level of success in the original case (Doc. 203). Thus, the degree of the Plaintiffs’ success with regard to the Voter ID Law is not at issue; rather, at issue is the reasonableness of the award requested for fees incurred in preparation of its earlier motion for fees incurred during their work obtaining relief for their clients and in defending that original fee award. The Plaintiffs’ level of success in the original litigation, therefore, is not an appropriate ground on which to reduce the current fees request, and the Court will make no reductions based on this objection. Because none of the Defendants’ reasonableness objections was persuasive, the Court finds the three law firms’ total requested hours to be reasonable.
b. Reasonable Hourly Rates Next in the lodestar analysis, the Court must determine if each attorney’s provided rate is reasonable. “To arrive at a reasonable hourly rate, courts use as a guideline the prevailing market rate, defined as the rate that lawyers of comparable skill and experience can reasonably expect to command within the venue of the court of record.” Geier v. Sundquist, 372 F.3d 784, 791 (6th Cir. 2004). In determining the reasonable rate, the Court has the discretionary authority to consider a party’s submissions, awards in analogous cases, and its own knowledge and experience from handling similar requests for fees. Project Vote, 2009 U.S. Dist. LEXIS 34571,
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at *5 (citing Johnson v. Connecticut Gen. Life Ins. Co. 2008 LEXIS 24026, at *14 (N.D. Ohio Mar. 13, 2008)). Defendants challenge the rates of two attorneys: (1) Chandra’s rate of $400/hour; and (2) Hollenbaugh’s rate of $325/hour (Doc. 219, p. 19). They argue these fees should be reduced because the legal matters involved in the Third Motion were not complicated. Previously, however, this Court decided that both Chandra and Hollenbaugh’s hourly rates were reasonable given their substantial experience in litigating election law cases (Doc. 203, p.19). In the present motion, Hollenbaugh again seeks the rate of $325/hour. The Court earlier found this rate to be reasonable and does not choose to revise that finding. Chandra seeks an increased rate of $400/hour from the $395/hour rate sought based on his work in 2006. The Court finds that an increase of $5/hour is reasonable given this litigation has spanned over a four-year period. Thus, Chandra’s requested rate of $400/hour is also reasonable. The Defendants do not object to Gentry’s requested rate, and this Court finds her requested rates of $280/hour and $290/hour to be reasonable. The Court, therefore, finds all three requested rates to be reasonable.
c. Application of the Three Percent Rule In a supplemental petition such as this, which seeks fees for the preparation of an original petition, a practical rule of thumb has developed that the supplemental award should be limited to three percent of the award for the main case when it is decided on the papers without a trial, and five percent of the award for the main case when trial is necessary.2 In Coulter v. Tennessee, the Court explained:
The cases from this and other circuits uniform ly hold that a lawyer should receive a fee for preparing and successfully litigating the attorney fee case after the original case is over . . . In the absence of unusual circum stances, the hours allowed for preparing and litigating the attorney fee case should not
2 Language taken from this Court’s decision in: Bank One, N.A. v. Echo Acceptance Corp., et al., 595 F. Supp 2d 798 (S.D. Ohio 2009)
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exceed 3% of the hours in the main case when the issue is submitted on the papers without a trial and should not exceed 5% of the hours in the main case when a trial is necessary. Such guidelines and lim itations are necessary to insure that the com pensation from the attorney fee case will not be out of proportion to the main case and encourage protracted litigation. Coulter v. Tennesee, 805 F.2d 146, 151 (6th Cir. 1986) accord Gonter v. Hunt Valve Company, Inc, 510 F.3d 610, 621 (6th Cir. 2007) ("[b]ecause Coulter controls this situation, we apply the three-percent rule to the district court's lodestar award"). Because this case has involved no trial, any supplemental fees reduction will be capped at three percent of the original award. Both parties agree that time the Plaintiffs spent on “the briefing and argument of Plaintiffs’ prior motions for fees and costs” was a supplemental fees request and is subject to the Three Percent Rule. The parties disagree, however, about whether hours spent in “opposition to and settlement of the State of Ohio’s appeal of this Court’s award of fees” and for “the negotiation of the Consent Decree” should also qualify as supplemental “fees for fees” and be subject to the Three Percent Rule. The Plaintiffs argue the hours spent on the appeal and in negotiating the Decree were separate from the time spent preparing and litigating the attorneys’ fees case and, therefore, fees incurred during the latter two phases of these proceedings should not be subject to the Three Percent Rule. This Court disagrees and finds that the hours spent at all three stages of this attorneys’ fees case constituted preparation for and litigation of the attorneys’ fees case and are subject to Three Percent Rule. Even though the appeals and Decree negotiation were unique proceedings after the Plaintiffs’ filing of the original fees motion, all steps taken in both of those stages were done in pursuit of obtaining fees in the absence of
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“unusual circumstances” that would justify a departure from the Three Percent Rule. Thus, this Court will apply the three percent cap to all the Plaintiffs’ requested fees.
In reaching this finding, the Court rejects the Plaintiffs’ argument that their hours should be exempt from the Three Percent Rule because the Sixth Circuit in Coulter intended the cap to prevent prevailing parties from prolonging litigation and here the Defendants, not the Plaintiffs, initiated the appeals process. This Court finds this argument to be a misinterpretation of the Sixth Circuit’s intent. In Coulter, the Sixth Circuit reasoned that the Three Percent Rule was “necessary to insure that the compensation from the attorney fee case will not be out of proportion to the main case.” Id. Nothing in this statement suggests that the Coulter court’s proportionality concerns turned on which party’s actions served to extend the litigation; rather, the Sixth Circuit was concerned with the overall fees outcome in supplemental fees cases. Thus, this Court will cap all the Plaintiffs’ requested fees, which the Court has determined to be supplemental “fees for fees,” at three percent of the awards in the main case pursuant to Coulter.
The awards in the main case were as follows: (1) $321,942.15.51 to Porter Wright; (2) $99,722.58 to Carlile Patchen; and (3) $82,749.38 to the Chandra Law Firm. Thus, the cap for each firm’s receipt of supplemental fees awards based on the Three Percent Rule will be: (1) $9,658.3 to Porter Wright; (2) $2,991.70 to Carlile Patchen; and (3) $2,482.5 to the Chandra Law Firm. Because each firm’s requested fees award exceeds the three percent cap, their respective fees award will be equal to the calculated cap figures listed above.
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d. Costs and Expenses The Plaintiffs moves the Court for an award of costs and expenses incurred: in (1) the briefing and argument of Plaintiffs’ prior motions for fees and costs; (2) opposition to and settlement of the State of Ohio’s appeal of this Court’s award of fees; and (3) the negotiation of the Consent Decree. Specifically, the Chandra Law Firm requests $2,702.39 in costs, and Porter Wright requests $1,108.24 in costs. The Defendant argues Chandra’s requested costs are improper for two reasons: (1) because his travel costs are duplicative; and (2) because Chandra submitted costs related to his client’s travel expenses. This Court does not find either of these arguments persuasive. First, the Plaintiffs properly distinguish between the reimbursement for Chandra’s time spent traveling to various proceedings related to this matter that can be billed at his hourly rate and the actual incidental costs inherent with travel such as gas and mileage. Because these two costs are distinct, this Court finds no duplication in awarding Chandra’s costs that were incidental to travel and including his compensable time as part of the prior lodestar analysis of reasonable hours for the fee award. Similarly, the Court finds it reasonable to award the Chandra Law Firm’s costs incurred to insure their client was present for proceedings. Thus, this Court awards the Chandra Law Firm its entire requested award of $2,702.39. The Defendants do not object to Porter Wright’s requested cost award of $1,108.24. The Court, therefore, will also award Porter Wright their entire requested cost amount.
V. CONCLUSION For the foregoing reasons, the Court GRANTS in part and DENIES in part the Plaintiffs’ Third Motion for Attorneys Fees (Doc. 212). Pursuant to this finding, the Court AWARDS
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$15,132.5 in total supplemental attorneys’ fees. Of this total fees award, Porter Wright shall receive $9,658.30, Carlile Patchen shall receive $2,991.70, and the Chandra Law Firm shall receive $2,482.50. Additionally, the Court AWARDS total costs and expenses in the amount of $3,810.63. Of this total costs and expenses award, the Chandra Law Firm shall receive $2,702.39 and Porter Wright shall receive $1,108.24.
IT IS SO ORDERED.

Dated: November 30, 2010

s/Algenon L. Marbley ALGENON L. MARBLEY UNITED STATES DISTRICT COURT

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 Case: 2:06-cv-00896-ALM-TPK Doc #: 298 Filed: 06/22/12 Page: 1 of 2 PAGEID #: 10330

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

THE NORTHEAST OHIO COALITION :

FOR THE HOMELESS, et al.,

:

:

Plaintiffs,

:

:

v.

:

:

JON HUSTED, in his official capacity as :

Secretary of the State of Ohio,

:

:

Defendant.

:

:

and

:

:

STATE OF OHIO

:

:

Intervenor-Defendant

:

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

ORDER REGARDING PLAINTIFFS’ REQUEST TO COMBINE HEARINGS This matter comes before the Court on Plaintiffs’ request that the Court hear argument on

Defendants’ pending request to vacate the Consent Decree, currently set for Wednesday, June

27, 2012 at 2:00 p.m., and on Plaintiffs newly-filed motion to modify the Consent Decree (Dkt.

288), together. Plaintiffs argue that in the interest of judicial economy, the parties’ competing

requests regarding to the Consent Decree should be heard at the same time.

At the May 16, 2012 status conference, and in the scheduling order that followed, the

Court stated it would address the threshold issue of the validity of the Consent Decree prior to

entertaining any motions to modify the Consent Decree. The June 27, 2012 hearing on the issue

of the Consent Decree’s validity will, accordingly, proceed as scheduled. At that hearing,

however, parties shall be prepared to address the scheduling for Plaintiffs’ Motion to Modify the

Consent Decree, and the issue of whether the Court should withhold its ruling on the validity of

Case: 2:06-cv-00896-ALM-TPK Doc #: 298 Filed: 06/22/12 Page: 2 of 2 PAGEID #: 10331

the Consent Decree until briefing and argument has completed on Plaintiffs’ Motion to Modify the Consent Decree.

IT IS SO ORDERED.

UNITE DATED: June 22, 2012

ALGENON

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

2

 
 Case: 2:06-cv-00896-ALM-TPK Doc #: 302 Filed: 06/26/12 Page: 1 of 2 PAGEID #: 10349

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

THE NORTHEAST OHIO COALITION :

FOR THE HOMELESS, et al.,

:

:

Plaintiffs,

:

:

v.

:

:

JON HUSTED, in his official capacity as :

Secretary of the State of Ohio,

:

:

Defendant.

:

:

and

:

:

STATE OF OHIO

:

:

Intervenor-Defendant

:

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

ORDER RELATING CASES AND FOR APPEARANCE OF NEW COUNSEL This matter is currently scheduled for oral argument on Defendants’ request to vacate the

Consent Decree, on Wednesday, June 27, 2012 at 2:00 p.m. On June 20, 2012, Plaintiffs filed a

Motion to Modify the Consent Decree, requesting that the Court make findings of constitutional

violations within Ohio’s provisional voting regime, and expand the scope of the Consent

Decree’s injunctive relief to prevent further violations. (Dkt. 288.) In their motion, Plaintiffs

notified the Court of a then-forthcoming related lawsuit which alleges essentially identical

constitutional challenges to Ohio’s provisional voting laws. Plaintiffs, accordingly, requested

that the Court combine their motion to modify with the motion in the new case. (Id. at 5.)

The complaint in the related case, Service Employees International Union Local 1 (SEIU)

et al. v. Jon Husted et al., Case No. 12-cv-562, was filed on June 22, 2012. A motion for a

preliminary injunction was filed in the new action the same day, (12-cv-562, Dkt. 4), requesting

substantially similar injunctive relief as Plaintiffs’ motion to modify the Consent Decree. The

Case: 2:06-cv-00896-ALM-TPK Doc #: 302 Filed: 06/26/12 Page: 2 of 2 PAGEID #: 10350

SEIU v. Husted plaintiffs filed, along with the complaint, a notice of related cases pursuant to

S.D. Ohio Local Rule 3.1(b). The notice listed the instant case as a related case, and requested

that the two cases be related. In the alternative, plaintiffs requested that the SEIU v. Husted

action be related to the Hunter v. Hamilton County Board of Elections case, Case No. 10-cv-820.

The Court deemed the SEIU v. Husted case to be related to the instant case because, inter alia,

the SEIU case “[c]all[s] for a determination of the same or substantially identical questions of

law or fact” as Plaintiffs call for in this case. See S.D. Ohio Local Rule 3.1(b)(2).

Counsel for parties in SEIU v. Husted, 12-cv-562, are hereby ORDERED to appear at

the scheduled hearing in NEOCH v. Husted, 06-cv-896, tomorrow, Wednesday, June 27, at

2:00 p.m., 85 Marconi Blvd. Columbus, OH 43215, Chambers of Algenon L. Marbley. All

parties shall be prepared to discuss the plaintiffs’ request to consolidate the pending motions in

both actions at that time.

IT IS SO ORDERED.

UNITE DATED: June 26, 2012

ALGENON

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

2

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

THE NORTHEAST OHIO COALITION :

FOR THE HOMELESS, et al.,

:

:

Plaintiffs

:

:

v.

:

:

JON HUSTED, in his official capacity as :

Secretary of the State of Ohio,

:

:

Defendant

:

:

and

:

:

STATE OF OHIO

:

:

Intervenor-Defendant.

:

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

OPINION AND ORDER

I. INTRODUCTION

This matter comes before the Court on the Defendants’ request to vacate the April 22,

2010 Consent Decree (the “Decree,” 06-cv-896, Dkt. 210). The Defendants challenged the

Decree’s validity following this Court’s May 10, 2012 Order granting Plaintiffs’ Urgent Motion

to Enjoin State-Court Proceedings, in which the Court enjoined the Relators’ collateral challenge

to the enforcement of the Decree’s orders filed in the Supreme Court of Ohio. (Dkt. 261.) The

Court directed parties to bring any challenges to the validity or terms of the Decree in this Court,

pursuant to the express terms of the Decree and this Court’s exclusive and continuing jurisdiction

to enforce the Decree’s orders. Parties have submitted briefs, and argument has been heard, on

the issue of whether the Decree is valid and should remain in force. For the reasons stated

herein, the Decree is VALID, and Defendants’ request to vacate the Decree is DENIED.

II. BACKGROUND A. Ohio’s Provisional Voting Regime Defendants’ current challenge, which is but the latest skirmish in the ongoing battle over Ohio’s provisional ballot laws, positions the requirements of the federal consent decree reached in this case, to which they are all parties, at fundamental odds with Ohio’s election laws. The essential legal claim underlying Defendants’ request is that the Decree’s order requiring, inter alia, that boards of elections “may not reject a provisional ballot” cast in the wrong precinct “for reasons attributable to poll worker error,” (Decree ¶ 5), run contrary to Ohio’s election statutes, which “do not authorize an exception based on poll-worker error to the requirement that ballots be cast in the proper precinct in order to be counted.” State ex rel. Painter v. Brunner, 941 N.E.2d 782, 794 (Ohio 2011). To provide context for the controversy, therefore, it is useful to discuss the basic, undisputed, aspects of the law governing provisional ballots in Ohio. Eligible voters in Ohio vote by precinct.1 The Secretary of State oversees the elections process and appoints the members of boards of elections in each of Ohio’s eighty-eight counties. O.R.C. § 3501.05(A). The board of elections is responsible for establishing election precincts, receiving and canvassing the returns of elections, maintaining voter registration records, and appointing and training poll workers.2 O.R.C. §§ 3501.06, 3501.22. Among other duties, O.R.C. § 3505.181(C)(1) delegates to poll workers the duty to direct voters to the correct precinct. The
1 A “precinct” is an intra-county district established by the board of elections. All residents of a precinct must vote at a specific designated location. O.R.C. § 3501.01(Q). Under Ohio Rev. Code. § 3503.01(A), “[e]very citizen . . . may vote at all elections in the precinct in which the citizen resides,” but, conversely, “[n]o person shall . . . vote . . . in a precinct in which that person is not a legally qualified elector.” 3599.12(A)(1). 2 Poll workers are responsible for receiving ballots and supplies, opening and closing the polls, and overseeing the casting of ballots during the time the polls are open. O.R.C. § 3501.22.
2

board must perform its duties “as prescribed by law or the rules, directives, or advisories of the secretary of state.”3 O.R.C. § 3501.11(P).
A voter whose name and current address match those in the precinct’s “signature pollbook” and who produces acceptable identification is permitted to vote by regular ballot. O.R.C. § 3505.18. Additionally, Ohio law permits individuals to cast a provisional ballot under certain circumstances. O.R.C. § 3505.181. Eligible provisional voters include individuals whose names do not appear on the precinct’s signature pollbook, individuals who do not have one of the acceptable statutory forms of identification, or individuals whose signatures were deemed by the poll worker not to match the names on the registration forms. Id. § 3505.181(A). Under Ohio law, the poll worker is tasked with determining whether an individual is eligible to vote in the jurisdiction.4 O.R.C. § 3505.181(C)(1).
To cast a provisional ballot, the voter must execute an affirmation stating that he or she is registered to vote in the jurisdiction and is eligible to vote in the election. O.R.C. §§ 3505.181(B)(2), 3505.182. Ballots cast by provisional voters are not scanned and counted like regular ballots on election day; rather, the eligibility of the voter’s provisional ballot must be determined by the county’s board of elections. See O.R.C. § 3505.183(B)(4)(a)(ii). Generally speaking, after the election, the provisional ballot envelopes (with completed ballots sealed inside) are taken to the board of elections where board staff review the information on the
3 In addition to its other duties, the board of elections is required to “[i]nvestigate irregularities, nonperformance of duties, or violations of Title [35] of the Revised Code by election officers and other persons.” O.R.C. § 3501.11(J). 4 If the voter is in the wrong precinct, the poll worker is to “direct the individual to the polling place for the jurisdiction in which the individual appears to be eligible to vote, explain that the individual may cast a provisional ballot at the current location but the ballot will not be counted if it is cast in the wrong precinct, and provide the telephone number of the board of elections in case the individual has additional questions.” O.R.C. § 3505.181(C)(1).
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envelope and, based on that information, determine whether the provisional ballot is eligible to
be counted. O.R.C. § 3505.183. As previously stated by the Court:
[i]f the individual is properly registered to vote, is eligible to cast a ballot in the precinct and for the election in which the individual cast the provisional ballot, and signed the affirmation statement indicating that he or she was eligible to vote, then the board shall open the provisional ballot envelope and place the ballot in a ballot box for counting. On the other hand, the board will not open the provisional ballot envelope or count the ballot if, among other things, the individual is not qualified or is not properly registered to vote, or the individual is not eligible to cast a ballot in the precinct or for the election in which the individual cast the provisional ballot.
Hunter v. Hamilton County Bd. of Elections (“Hunter II”), No. 10-cv-820, 2012 WL 404786, at
*6 (S.D. Ohio Feb. 8, 2012); O.R.C. §§ 3505.183(B)(3), B(4).
Substantial conflict has arisen, however, over how to proceed under Ohio law when the
Secretary and the boards of elections turn to the task of determining whether, and how, to open
and count provisional ballots that contain deficiencies, or have been cast in the wrong precinct,
for reasons attributable to poll worker error.
B. The NEOCH Lawsuit In 2006, when the Ohio General Assembly (“General Assembly”) amended Ohio’s
Election Code to require, inter alia, that voters provide one of several types of identification in
order to cast a regular ballot in state and federal elections held in Ohio, the Plaintiffs filed this
action under 42 U.S.C. § 1983 in response, against challenging the constitutionality of several
provisions of the newly-enacted voter identification and provisional ballot laws. (Compl. ¶¶ 1-
4.) The State of Ohio was subsequently permitted to intervene as a defendant “both in appeal . . .
and in the ongoing district court proceedings,” on behalf of the people of Ohio and the General
Assembly. NEOCH v. Blackwell, 467 F.3d 999, 1002, 1008 (6th Cir. 2006) (granting the State
4

of Ohio leave “to intervene to represent the interests of the people of Ohio and the General Assembly in defending the constitutionality of the [Ohio voter ID laws]”).
C. The 2010 Consent Decree In late 2009, the parties began negotiations globally to settle this litigation. These negotiations ultimately resulted in the April 19, 2010 Consent Decree, a final judgment approved and entered by the Court upon the agreement of the parties. The Decree provides the Plaintiffs with detailed injunctive relief, including requiring the Secretary to issue specific directives to Ohio’s County Boards of Elections regarding the casting and counting of provisional ballots. (See, e.g., Decree-1, Directive 2008-80, adopted and annexed as an order of this Court pursuant to Paragraph 4 of the Decree.) Among its other provisions, the Decree mandates that the Boards of Elections “may not reject a provisional ballot cast by a voter, who uses only the last four digits of his or her social security number as identification” if certain deficiencies in the ballot, including being cast “in the wrong precinct, but in the correct polling place,” were the result of poll-worker error. 5 (Decree ¶ 5.) Moreover, under the terms of the Decree, the Secretary is required, before every primary and general election, to direct the Boards of Elections to comply with the injunctive relief as stated in the Decree. (Decree ¶ 7.) The Decree provides for its continuing validity through June 30, 2013. Pursuant to the consent of the parties, no findings or adjudications of law were made by the Court or stipulated to in the Decree. (Decree, p. 2.) By agreeing to settle the matter through entering into the Decree, the parties agreed to “waive a hearing and findings of fact and
5 Poll worker error was “further defined” by the secretary of state in subsequent directives, as “‘when a poll worker acts contrary to or fails to comply with federal or Ohio law or directive issued by the Secretary of State’ and set forth ‘objective criteria’ for determining poll-worker error.” See State ex rel. Painter v. Brunner, 941 N.E.2d 782, 789 (Ohio 2011).
5

conclusions of law on all issues.” (Id.) The Decree expressly states that it “shall in no way constitute an adjudicating or finding on the merits.” (Id.) The parties agreed that the Decree was “final and binding among and between themselves as to the issues raised in Plaintiffs’ Complaint and Supplemental Complaint, and the matters resolved in this Decree.” (Id.) The Decree provided, however, that “any of the parties may file a motion with the Court to modify, extend or terminate this Decree for good cause shown.” (Id. ¶ 11.)
D. The Relators’ Mandamus Action in the Supreme Court of Ohio On April 16, 2012, Relators filed an original action for mandamus in the Ohio Supreme Court, seeking “to compel the Secretary of State to rescind directives issued pursuant to a consent decree,” referring to the Decree. (Dkt. 246-1, Ohio S. Ct. Case No. 12-0639, Compl. p.1.) On May 8, 2012, Plaintiffs moved this Court to enjoin the Relators’ action. On May 10, 2012, the Court granted Plaintiffs’ motion and ordered Relators to dismiss their mandamus action in the Ohio Supreme Court. The Court then instructed parties to bring in this Court any further challenges for invalidation or modification of the terms of the Decree. On May 16, 2012, the Court held a status conference in which Plaintiffs indicated their intent to modify the Decree, and Defendants urged that the Decree should be vacated. The Court ordered briefing on the threshold issue of whether the Decree is valid. Oral argument was held on the matter on June 27, 2012, at which time the Court heard from counsel for the Plaintiffs, Relators, the Secretary, and the State of Ohio. The matter is now ripe for determination. During the pendency of Defendants’ instant request to vacate, Plaintiffs filed their Motion to Modify the Consent Decree to Prevent Constitutional Violations. (Dkt. 288.) In their Motion, Plaintiffs request a “narrowly-tailored” modification to the injunctive relief provided in the Decree, pursuant to the Court making evidentiary findings of continuing constitutional
6

violations resulting from the widespread arbitrary rejection of eligible voters’ provisional ballots due to poll-worker error, as well as “the disparate standards employed by Ohio county boards of elections . . . result[ing] in unequal treatment of voters . . . .” (Dkt. 288, at 2-3.)
Additionally, on June 22, 2012, a related case was filed on behalf of both new and existing organizational and union plaintiffs against the Secretary and members of coutny boards of election. See Service Employees International Union Local 1 et al., v. Jon Husted et al., Case No. 12-cv-562 (“SEIU”). A motion for a preliminary injunction was filed in the new action the same day, (12-cv-562, Dkt. 4), requesting substantially similar injunctive relief as Plaintiffs’ motion to modify the Consent Decree. The parties in SEIU were ordered to appear at the June 27, 2012, hearing in this Court on Defendants’ request to vacate the Decree. At that hearing, the Court indicated that it would determine first the threshold issue presently before the Court of the validity of the Decree. The Court indicated that, depending on its decision on whether to vacate the Decree, it would then decide the Plaintiffs’ motion to modify, if necessary, and the issues raised by the plaintiffs in SEIU.
III. LAW AND ANALYSIS Defendants argue that the Decree must be vacated because its orders requiring boards of election to count certain categories of provisional ballots which are found to be deficient “for reasons attributable to poll worker error,” (see Decree ¶ 5(b)), are in direct conflict with the Ohio election law, as interpreted by the Ohio Supreme Court. To support their claim, Defendants rely chiefly on last year’s decision in State ex rel. Painter v. Brunner, in which the Ohio Supreme Court held that “[Ohio’s elections] statutes do not authorize an exception based on poll-worker error to the requirement that ballots be cast in the proper precinct in order to be counted.” 941 N.E.2d at 794. Defendants argue that because the Decree was not issued pursuant to any
7

findings or admissions federal law violations, state law prevails over the terms of the Decree consented to by the parties.
Plaintiffs first dispute the alleged conflict between Ohio law and the Decree. Plaintiffs maintain, alternatively, that even if the Court rules that Painter’s holding does conflict with the Decree’s orders, a demonstration by Defendants that the Decree conflicts with Ohio law, without more, is insufficient to meet their burden for vacating the Decree under Rule 60(b)’s requirements for a party’s requesting relief from a final order. Further, while Plaintiffs dispute Defendants’ fundamental claim—that, because the Decree conflicts with Ohio law, it may only be enforced pursuant to a judicial finding that its terms are necessary to prevent federal constitutional violations—Plaintiffs argue that ample evidence existed in the record at the time of the Decree to make such a finding.
Finally, Plaintiffs have introduced new evidence into the record in support of their opposition to Defendants’ request, to demonstrate that terminating the Decree will result in additional constitutional violations in Ohio with respect to provisional ballot counting laws and practices. Plaintiffs insist that if the Court finds it necessary to reach the issue of whether the Decree is required to remedy or prevent ongoing constitutional violations, the evidence is sufficient to support a finding that constitutional violations would result from terminating the Decree. Under Supreme Court precedent, argue Plaintiffs, such a finding precludes the Decree from being vacated.
A. Defendants’ Challenge is Precluded by Res Judicata As a threshold matter, Defendants are precluded by the principles of issue preclusion from re-litigating the issue of whether the Decree is invalid due to a conflict with Ohio election law. Both this Court and the Sixth Circuit have previously determined that the Decree does not
8

conflict with Ohio state law, and is consistent with the Ohio Supreme Court’s clarification of Ohio law in Painter. Defendants’ basis for finding the Decree “invalid and unenforceable”6 has been rejected by at least one final decision by this Court on the merits. See Hunter II, 2012 WL 404786, at *46 (holding, “[t]he NEOC Consent Decree is valid”). The Court’s prior decision is accorded due preclusive effect in this subsequent challenge.
It is well-established that “a fundamental precept of common-law adjudication is that an issue once determined by a competent court is conclusive.” Arizona v. California, 460 U.S. 605, 621 (1983). The doctrine of issue preclusion, also known as “collateral estoppel,” is the species of modern res judicata that “bars relitigation of issues actually litigated and determined in an earlier action and necessary to the judgment.” Kane v. Magna Mixer Co., 71 F.3d 555, 560 (6th Cir. 1995). Issue preclusion will generally preclude the present claim where the following four requirements are met:
(1) the precise issue raised in the present case must have been raised and actually litigated in the prior p roceeding; (2) dete rmination of the issue m ust have been necessary to the outcome of the prior pr oceeding; (3) the prior proceeding m ust have resulted in a final judgm ent on the merits; and (4) the party against whom estoppel is sought must have had a full and fair opportunity to litigate the issue in the prior proceeding. Kosinski v. Comm'r, 541 F.3d 671, 675 (6th Cir. 2008) (citation omitted). Applying these elements to the case sub judice, Defendants’ argument for vacating the Decree is precluded because the same issue has already been litigated and decided in the Hunter v. Hamilton County Board of Elections litigation, which arose from the disputes over counting certain categories of provisional ballots for the 2010 Hamilton County Juvenile Judge electoral
6 (State Brief, at 3.) 9

race and the subsequently-ordered investigation into whether the ballots were miscast due to poll-worker error.
1. Issue Has Been Raised and Litigated in a Prior Proceeding The first, and most essential, requirement for issue preclusion is met. The same issue raised by Defendants here was actually litigated in the Hunter litigation, and was rejected by both the trial court and the Sixth Circuit. The Board in Hunter, like Defendants here, defended against the Decree’s enforceability on the basis that the Decree’s orders conflicted with Ohio law.7 The Defendants’ request to vacate the Decree, likewise, rests on their claim that the Decree is invalid and unenforceable because the Decree’s orders to the Secretary are inconsistent with those of Ohio law. In the Hunter I appeal, the Sixth Circuit had reviewed the defendants’ justifications for the Board’s “differential treatment” among the categories of provisional ballots. The court opined that while “Ohio law, now made explicitly clear in Painter, does not permit the consideration of poll-worker error with respect to ballots cast in the wrong precinct,” Hunter v. Hamilton County Bd. of Elections, 635 F.3d 219, 239 (6th Cir. 2011) (“Hunter I”), “[t]he Ohio Supreme Court in Painter, however, does recognize the exception carved out by the NEOCH consent decree for those provisional voters using the last four digits of their Social Security
7 As stated by Chief Judge Dlott in Hunter II: The Board’s argument is as follows: Ohio law provides that a provisional ballot envelope shall not be opened and the ballot shall not be counted if the Board determines that the individual cast the ballot in the wrong precinct. O.R.C. § 3505.183(B)(4)(a)(ii). The Decree suspends Ohio law because it requires the Board to open and count wrong precinct ballots in certain, narrow circumstances, including when a ballot is cast in the wrong precinct but in the correct polling place because of poll-worker error.
Hunter II, 2012 WL 404786, at *5. 10

number as identification.” Id., n. 17. The Sixth Circuit found, therefore, that Painter was not in
conflict with the Decree, and that the Ohio Supreme Court had recognized the Decree’s validity.
The specific issue of the Decree’s validity, however, was not one of the contested issues
on that appeal in Hunter I. See id. at 247 (noting that, “[w]ith respect to the NEOCH consent
decree, all parties agree that the consent decree remains and should be followed”). On remand to
this Court in Hunter II, however, the Board did contest the Decree’s enforceability, making
substantially the same claim as Defendants make here. See Hunter II, 2012 WL 404786, at *5
(defendants arguing that the Decree conflicts with, and thus “suspends” Ohio law in
contravention of the Ohio constitution). The Court “disagree[d] with the Board’s argument,”
holding that “[t]he NEOCH Consent Decree does not suspend any Ohio law.” Id. After a
lengthy consideration of the Decree’s requirements, and the impact of the Ohio Supreme Court’s
decision in Painter, the Court concluded the following:
The NEOCH Consent Decree does not stay, discontinue, permanently enjoin or declare unconstitutional any Ohio law. In fact, Ohio provisional ballot laws remain in full force . . . consequently, the NEOCH Consent Decree does not run afoul of Article I, Section 18 of the Ohio Constitution. NEOCH and ODP are parties in the NEOCH case and are parties to the NEOCH Consent Decree. Because the Court finds that the Consent Decree is valid, NEOCH and ODP have standing to pursue the claims asserted.
Id. at *5 (emphasis added) (adding, in footnote 7, that, “[a]lternatively, even if the Court
were to find that the NEOCH Consent Decree suspends Ohio law, the decree still would not
conflict with Article I, Section 18 of the Ohio Constitution because the General Assembly was
represented by the Attorney General of Ohio in the NEOCH case”).
2. The Issue was Necessary to the Outcome of the Prior Final Decision on the Merits Turning to the second and third requirements for issue preclusion, Hunter II resulted in a
final decision on the merits from a most competent judge of this Court, in which this issue of the
11

Decree’s validity was necessary to decide in order to make the Court’s conclusions and grant the relief requested. The Sixth Circuit, in Hunter I, initially affirmed the November 22, 2010 order from this Court granting a preliminary injunction ordering the Hamilton County Board of Elections (the “Board”) to investigate whether poll worker error contributed to rejection of the 849 provisional ballots and to include any provisional ballots improperly cast due to poll worker error. See Hunter I, 635 F.3d 219 (6th Cir. 2011).
Then, on remand, in Hunter II, this Court rendered its final order on the merits after holding a bench trial, dismissing the Board’s motions to dismiss and for summary judgment, and issuing a declaratory judgment and permanent injunction. See Hunter II, 2012 WL 404786, at *6. This Court’s decision in Hunter II constituted a final decision on the merits. See id. at *2 (“[H]aving considered the evidence and arguments advanced by the parties regarding the merits of Plaintiffs’ claims, the Court finds for the Plaintiffs on their claims that Defendants violated voters’ right to equal protection under the law and violated the NEOCH Consent Decree.”); see also Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990) (holding that “[a] Fed. R. Civ. P. 56(c) grant of summary judgment constitutes a decision on the merits”).
3. Full and Fair Opportunity to Litigate Finally, the fourth requirement demands that before precluding an issue, the defendants or their privies must have had an adequate opportunity to litigate it in the prior action. The defendants in the Hunter litigation are agents of the Defendants here, or are in sufficient privity with the Defendants here for the purpose of preclusion doctrine. When determining whether issue preclusion will lie, “[j]udgments are preclusive only as to parties and their privies.” United States v. Vasilakos, 508 F.3d 401, 406 (6th Cir. 2007) (“Collateral estoppel precludes relitigation of issues between parties or their privies previously
12

determined by a court of competent jurisdiction.”) (citing Montana v. United States, 440 U.S. 147, 153 (1979)). In the Sixth Circuit, “[p]rivity is limited to a successor in interest to the party, one who controlled the earlier action, or one whose interests were adequately represented.” Vasilakos, 508 F.3d at 406 (internal quotations omitted). The existence of privity turns on whether there is a “sufficient mutuality of interest” between the parties in the first and second cases. See Microvote Corp. v. Casey 57 F.3d 1070 (6th Cir. 1995).
The Hunter case is related to the instant case, with respect to both the issues raised and the parties involved. The Plaintiffs to this case were permitted to intervene in the Hunter case, specifically “to enforce the consent decree.” See Hunter, 635 F.3d at n. 17 (“In this litigation, intervenors NEOCH and the Ohio Democratic Party seek to enforce the consent decree with respect to the defendant Board’s review of the relevant ballots.”). While none of the Defendants here is among the named defendants in Hunter, the defendant Board acted as an agent of the State of Ohio and the Secretary of State, who are parties here. See Hunter II, 2012 WL 404786, at *3 (“[T]he Court finds that the Board functions as an arm of the State with respect to its review and counting of provisional ballots.. . . [and] its membership is appointed by the Ohio Secretary of State.”).
In Hunter, the Defendant Board of Elections opposed the Plaintiffs’ standing to enforce the Decree because the Decree was in conflict with Ohio law. See Hunter II, 2012 WL 404786, at *5 (“NEOCH and ODP intervened in this suit to enforce the terms of the NEOCH Consent Decree. The Board argues that the Decree does not confer standing to NEOCH and ODP because it violates [Ohio Constitution].”) Defendants’ request, here, to vacate the Decree is motivated by the same shared interest, which is to render the Decree’s terms unenforceable as a matter of Ohio law. Defendants argue the Decree is invalid because it amended, changed, or
13

altered Ohio law absent the approval of the General Assembly, in violation of the Constitution, as discussed, infra, Section III.B.
In sum, the previous and current sets of defendants had an identical interest, namely, invalidating the Decree or render it unenforceable on the basis that it conflicted with Ohio law. As such, there exists a “sufficient mutuality of interest” on the issue to create privity between the defendants in both actions. In addition to being successors in interest, the State and Secretary effectively “controlled the earlier action” through their agent and “arm of the State,” the Board. See Hunter II, 2012 WL 404786, at *3. The fourth requirement of issue preclusion that there be privity between the parties in prior and the present action, is therefore met.
Hence, because the precise issue raised by Defendants here in support of vacating the Decree—whether the Decree is invalid in light of its apparent conflict with the Ohio Supreme Court’s interpretation of Ohio law—has been raised and actually litigated; was necessary to the Court’s outcome in the prior proceeding, which resulted in a final judgment on the merits; and because Defendants and their privies have had, and continue to have,8 a full and fair opportunity to litigate this issue in those proceedings, Defendants’ are barred from re-raising the issue here.
Since Plaintiffs did not specifically raise issue preclusion or res judicata as a defense to Defendants’ arguments, however, the Court is constrained to address the other arguments made by the parties.
B. The Decree’s Compatibility with Ohio law Defendants make two slightly different, but related, arguments for the Decree’s invalidity, both of which rely on the legal proposition that the Decree is in conflict with Ohio law. First, Defendants argue that the state officials who were parties to the Decree lacked the
8 The permanent injunction in Hunter II is currently on appeal, pending decision by the Sixth Circuit. 14

authority to bind themselves to its terms, because the Decree’s provisions had the effect of amending existing Ohio law without first passing through the General Assembly, in violation of the Ohio Constitution.9
Defendants’ second argument is that the Ohio Supreme Court’s holding in Painter regarding provisional ballot laws stands in “direct conflict” with the Decree’s orders, (see State Brief, at 2), and that because the Decree was not entered pursuant to any findings of federal constitutional violations, the Ohio Supreme Court’s interpretation of Ohio law must prevail. Without having first determined that the Decree was necessary to remedy a federal violation, claim Defendants, the state officials cannot agree to “ignore Ohio law and comply with the courtordered remedy.” (Id.); (see also Secretary Brief, at 3) (“Absent a finding of a federal constitutional deprivation to be remedied by the Consent Order, the Court has no jurisdiction to enforce a Consent Decree that contradicts Ohio law.”).
The Court first will examine whether, and to what extent, Defendants’ claim—that the Consent Decree is inconsistent with Ohio law—is accurate. If the Court finds no conflict, Defendants verily acknowledge that the basis for their present request to vacate the Decree disappears.10 Whether, as Defendants assert, proving a demonstrable conflict between the Decree and Ohio law is itself sufficient to grant their request to vacate the Decree is a further question which the Court will address subsequently, if it becomes necessary.
9 The Relators refer, specifically, to Article II of the Ohio Constitution, which provides that, “[t]he legislative power of the state shall be vested in a General Assembly consisting of a Senate and House of Representatives . . . .” Ohio Constitution, Art. II, §1, and requires that a state statute pass both houses of the General Assembly and be signed by the Governor in order to have the force of law. (Relators Brief, at 7). 10 As counsel for the Secretary acknowledged to the court at the outset of oral argument on the Defendants’ request, “obviously, if you assume there is no conflict, then I’ve lost my argument.” (Trans. Oral Proceedings, June 27, 2012, 06-cv-896, 26:21-23.)
15

1. Authority of the Parties to Enter into the Decree The Decree did not alter or amend state law when it was entered into by the parties and ordered by the Court in April 2010. The Defendants’ claim that the party officials to the Decree changed existing state law by consenting to count provisional ballots cast in the wrong precinct is unpersuasive. While it is true that the relevant Ohio election statutes regarding provisional ballots have not changed since before the Decree was entered, when the parties consented to the Decree, the Ohio Supreme Court’s controlling interpretation of the provisional voting laws, at most, left open the question of whether poll-worker error could be taken into account for miscast ballots. Ohio election law concerning the counting of provisional ballots at the time the parties entered into the Decree in April 2010 was reflected in the Ohio Supreme Court’s opinion in State ex el. Skaggs v. Brunner, 900 N.E.2d 982 (Ohio 2008). Skaggs was a mandamus action arising out of the November 2008 general election, in which the relators alleged that Secretary had erroneously interpreted the Ohio election statutes, and sought to compel the Secretary and boards of election “to reject any provisional ballots as not eligible to be counted if they do not include the name and signature of the voter on the affirmation required by R.C. 3505.183(B)(1)(a).” Skaggs, 900 N.E.2d at 984. The Secretary had issued directives which required the boards of election to count certain defective provisional ballots, because “[p]oll worker error cannot serve as a basis for rejecting a provisional ballot under Directive 2008-103 and the October 27, 2008 federal court order.”11 Id. at 989. The Ohio Supreme Court, thus, had to “determine whether the secretary of state’s directives in this regard were unreasonable under the law.” Id.
11 The “October 27, 2008 federal court order” refers to the Court’s order on plaintiffs’ motion for preliminary injunction in this case, (Dkt. 143), ordering the Secretary to instruct the County Boards of Election that “‘provisional
16

For each category of provisional ballots at issue in that case, the Skaggs Court applied the requirements for counting provisional ballots under Ohio law to the defendants’ factual assertions in the record of poll-worker error. See Skaggs, 900 N.E.2d at 988; R.C. 3505.181 (providing the eligibility requirements for casting a provisional ballot); R.C. 3505.183(B)(1) (“To determine whether a provisional ballot is valid and entitled to be counted, the board shall . . . determine whether the individual who cast the provisional ballot is registered and eligible to vote.). Of relevance here is that, with respect to the first category of provisional ballots,12 the court determined that the facts presented there of poll-worker error did not justify counting the flawed provisional ballots. The court reasoned, however, that:
If we were presented with evidence that the election officials had performed any of their statutorily required actions or evidence that they had affirmatively failed to do so because they were improperly trained or improperly instructed regarding their duties in these circumstances, we may have been persuaded that declinations could be presumed. Id. at 991. Hence, while the Ohio Supreme Court refused to “assume systematic poll-worker error” in Skaggs, see id., the court’s holding, supra, suggested that, at least in certain circumstances, ballots may be reviewed for evidence of poll-worker error and that establishing poll-worker error could require counting provisional ballots that are otherwise invalid under Ohio law. In other words, contrary to the position taken by Defendants here, at the time the Decree was entered, there was no clear legal prohibition in Ohio law against considering poll-worker error when determining whether to count deficient provisional ballots.
ballots may not be rejected for reasons that are attributable to poll worker error,’” and which she complied with by issuing Directive No. 2008-103. Skaggs, 900 N.E.2d at 985, (quoting Dkt. 143). 12 These “consist[ed] of ballots on which the individual printed his or her name in the affirmation but did not sign the affirmation.” Skaggs, 900 N.E.2d at 987.
17

The state officials did not amend or alter Ohio law, therefore, by consenting to the Decree’s orders for prohibiting the rejection of certain types of deficient provisional ballots where poll-worker error was the demonstrated cause. The parties’ agreed-upon language in the Decree, in fact, reflects the parties’ consideration of compliance with Ohio law and Skaggs. For example, the Decree states that “[f]or purposes of this Decree poll worker error will not be presumed, but must be demonstrated through evidence.” (Decree, ¶ 1(e).) This term, quite deliberately,13 conforms with the Ohio Supreme Court’s holding in Skaggs, re-affirmed in Painter, that “‘[i]n the absence of evidence to the contrary, public officers, administrative officers and public authorities, within the limits of the jurisdiction conferred upon them by law, will be presumed to have properly performed their duties in a regular and lawful manner and not to have acted illegally or unlawfully.’” Painter, 941 N.E.2d at 798 (quoting Skaggs, 900 N.E.2d at 990).
The Court determines, therefore, that the Decree was not in conflict with Ohio law, as most-recently interpreted by the Ohio Supreme Court, when the Decree was agreed to by the parties and entered as a final judgment in April 2010. Defendants do not challenge the ability or authority of state officials’ to enter into consent decrees, generally. Because the Decree was not inconsistent with Ohio law, the Court rejects Defendants’ argument that the party-officials to the
13 As represented to this Court by counsel for the Secretary upon the parties entering into the Decree: We do take into account poll worker error and what does constitute poll worker error, which would allow for the ballot to be counted in certain circumstances if actual evidence of poll worker error is present. So we believe that to be consistent with both this Court‘s initial approach in the Skaggs case, and then the Supreme Court‘s approach in the Skaggs case after remand from the Court of Appeals.
(Doc. 255, Trans. Oral Proceedings, 06-cv-896, Apr. 19, 2010, at 73.) 18

Decree lacked the authority to enter into the Decree on the basis that the Decree’s orders had the effect of amending Ohio law.
2. The Decree’s Consistency with the Painter Decision Defendants contend, uniformly, that the Ohio Supreme Court’s decision in Painter conclusively established that the Decree’s orders conflict with Ohio election law, and that the Decree’s conflicting orders are invalid as a result. According to the Defendants, Painter held categorically that poll-worker error cannot serve as a basis for counting defective provisional ballots, including those covered by the Decree. Plaintiffs maintain that the Painter decision does not conflict with the Decree, and the Court in Painter expressly acknowledged the Decree’s orders as valid and binding despite Ohio law’s general prohibition against counting deficient provisional ballots, regardless of the reason. Painter, like Skaggs, was an original mandamus action filed in the Ohio Supreme Court to compel the Secretary and the Hamilton County Board of Elections to rescind certain directives and decisions relating to the procedure for an investigation ordered by the federal court of the Southern District of Ohio in Hunter to determine whether disputed provisional ballots that were not counted because they had been cast in the wrong precinct had been miscast due to error. The Painter Court held that the Ohio election statutes “do not authorize an exception based on pollworker error to the requirement that ballots be cast in the proper precinct in order to be counted.” Painter, 941 N.E.2d at 794.14 The Painter Court concluded, therefore, that:
14 Citing R.C. 3503.01(A) (every qualified elector “may vote at all elections in the precinct in which the citizen resides”); R.C. 3505.181(C)(2)(a) (providing that “if an individual refuses to travel to the polling place for the correct jurisdiction . . .[a] provisional ballot cast by that individual shall not be opened or counted" if the "individual is not properly registered in that jurisdiction”) and (E)(1) (defining “jurisdiction" for purposes of provisional-ballot provisions as "the precinct in which a person is a legally qualified elector"); R.C. 3505.182 (requiring each individual casting a provisional ballot to execute a written affirmation stating that he or she "understand[s] that . . . if the board of elections determines that" the individual is not a resident of the precinct in which the ballot was cast,
19

[U]nder Ohio statutory law, the secretary of state’s instructions to the board of elections, which required an investigation into whether poll-worker error caused any of the 850 provisional ballots to be cast in the wrong precinct, were erroneous because there is no exception to the statutory requirement that provisional ballots be cast in the voter's correct precinct. Id. (confirming that “[t]hese statutes do not authorize an exception based on poll-worker error to the requirement that ballots be cast in the proper precinct in order to be counted”). At first blush, this language from Painter appears to be, as Defendants contend, irreconcilable with the Decree which orders that boards of election “may not reject a provisional ballot cast by a voter, who uses only the last four digits of his or her social security number as identification” for reasons including where “the voter cast his or her provisional ballot in the wrong precinct, but in the correct polling place, for reasons attributable to poll worker error.” (Decree ¶ 5(b).) The Painter Court’s interpretation of the Ohio provisional ballot counting regime did not end there, however. The court then expressly addressed the interplay between Ohio law and the Decree. As the court explained, although “[a]s the state’s chief election officer pursuant to R.C. 3501.04,” the Secretary’s duties include “‘[c]ompel[ling] the observance by election officers in the several counties of the requirements of the election laws” Painter, 941 N.E.2d at 795 (quoting R.C. 3501.05(B), (C), and (M)), “the secretary of state also has a duty to instruct
the provisional ballot will not be counted); R.C. 3505.183(B)(4)(a)(ii) (if board determines that the “individual named on the affirmation is not eligible to cast a ballot in the precinct or for the election in which the individual cast the provisional ballot,” “the provisional ballot envelope shall not be opened, and the ballot shall not be counted”); and R.C. 3599.12(A)(1) (prohibiting any person from voting or attempting to vote in any election “in a precinct in which that person is not a legally qualified elector") and (B) (making a violation of that section a felony of the fourth degree).
20

election officials on the applicable requirements of federal election law as well as federal court orders that are applicable to them.” Id. (emphasis added) (basing its reasoning on the premise that “[t]here is nothing in these [Ohio] statutes that restricts the secretary of state’s instructions to boards of elections to state election law”).
The Painter Court then analyzed whether the Secretary’s disputed directives were warranted under the Decree. In doing so, the court recognized the Decree’s orders as limited in scope, but nonetheless binding upon the Secretary:
The decree specifies only that boards of elections may not reject a provisional ballot “cast by a voter, who uses only the last four digits of his or her social security number as identification” for any of several reasons, including that the “voter cast his or her provisional ballot in the wrong precinct, but in the correct polling place, for reasons attributable to poll worker error.” Id. (quoting Decree). The court distinguished the Decree’s requirements for counting provisional ballots miscast due to poll-worker error, which it maintained as valid, from the invalid directions to count additional provisional ballots by the Secretary. See id. (concluding that the “consent decree . . . however, does not justify the secretary of state’s” issuance of the directives in that case, because “[t]he secretary of state’s postelection directives and advisory applied more expansively [than the Decree’s] to the 850 provisional ballots cast in the wrong precinct”). A thorough examination of Painter, therefore, reveals that it did not interpret a conflict between Ohio law and the Decree. Rather, in Painter, the Ohio Supreme Court expressly determined the Decree’s orders requiring the counting of certain facially deficient provisional ballots to be valid and binding upon the Secretary, and thus by definition consistent with Ohio election law. See Painter, 941 N.E.2d at 798 (concluding that “the secretary of state’s postelection instructions to the board of elections were not justified by Ohio law or the pertinent
21

federal court orders.”) (emphasis added). This is the same conclusion arrived at by the Sixth Circuit in Hunter. See Hunter, 635 F.3d at 238 (recognizing that while “Ohio law, now made explicitly clear in Painter, does not permit the consideration of poll-worker error with respect to ballots cast in the wrong precinct . . . [t]he Ohio Supreme Court in Painter, however, does recognize the exception carved out by the NEOCH consent decree for those provisional voters using the last four digits of their Social Security number as identification”).
At oral argument, counsel for the Defendants sequentially implored the Court to find a conflict between the terms of the Decree and Ohio law, notwithstanding the acknowledgement of same counsel that none of the state or federal cases addressing the Decree has expressly found it to be conflict with Ohio law, and the Painter Court’s acknowledgement of the Decree’s orders as binding aspects of Ohio provisional ballot law. 15
Counsel for the Defendants insisted that the Ohio Supreme Court’s holding in Painter was “contextual,” and that the issue of the Decree’s consistency with Ohio law was not properly before the court in Painter, which explains why the Ohio Supreme Court did not expressly find a conflict.16 This contention is unavailing. Painter’s own internal account of the issues presented therein confirms that the arguments in defense of the Secretary’s challenged directives implicated and relied on the enforceability of the Decree. See Painter, 941 N.E.2d at 795. (stating that “the secretary of state and the intervening respondents assert that the secretary’s
15 Even if defense counsel were correct asserting that the specific issue presented here was not before the Painter Court, as discussed, supra, the issue was undoubtedly before the court in Hunter. The Court has already determined that the Defendants’ challenge to the Decree’s validity under this theory is barred by issue preclusion, see Section III.A., supra. Moreover, even if Defendants were not technically estopped from re-litigating the issue, the federal courts’ rationales and holdings in the Hunter litigation finding the Decree to be valid are highly persuasive to the Court, here. This Court, in Hunter II, held quite simply that “Painter does not call the validity of the Consent Decree into question.” Hunter II, 2012 WL 909987 at *6. 16 See, Trans. Oral Proceedings, June 27, 2012, 08-cv-896, 24:2-19; 32:16-33:2.
22

postelection instructions were warranted because of the federal consent decree in Northeast Ohio
Coalition for the Homeless . . . as well as Judge Dlott’s November 22 injunctive order in [Hunter]”).17 Presumably, if the Decree’s orders were invalid and/or unenforceable as a matter
of law, the Ohio Supreme Court would have mentioned that threshold illegality in its analysis of whether the Secretary’s orders were lawful under the Decree.18
Switching gears somewhat, counsel for the Secretary suggested, in rebuttal argument, that
the Ohio Supreme Court refrained from finding the Decree in conflict with Ohio law because of Supremacy Clause concerns.19 This plainly is not the case. In Painter, as elsewhere, the Ohio
Supreme Court expressly, and correctly, recognized that while “‘the Supremacy Clause binds
state courts to decisions of the United States Supreme Court on questions of federal statutory and
constitutional law,’” Painter, 941 N.E.2d at 797 (quoting State v. Burnett, 755 N.E.2d 857 (Ohio
2001)), “we are not bound by rulings on federal statutory or constitutional law made by a federal
court other than the United States Supreme Court.” Id. (citations omitted) (the court quoting, also, the Sixth Circuit in Planned Parenthood of Cincinnati Region v. Strickland,20 stating that
“[t]o allow federal courts free rein in determining whether and under what circumstances a
17 The Sixth Circuit corroborates this, stating that “[i]n this litigation,” referring to the Hunter litigation, out of which Painter’s mandamus action arose, “intervenors NEOCH and the Ohio Democratic Party seek to enforce the consent decree with respect to the defendant Board’s review of the relevant ballots.” Hunter, 635 F.3d at 238, n.17. 18 Counsel for the Relators also argued, at the June 27, 2012 hearing, that the issue presented here was not before the court in Painter. Counsel directs this Court’s attention to paragraph 27 of Painter, and argues that the court’s clarification therein that “Directives 2010-74 and 2010-79 were restricted to those situations covered by the federal consent decree in Northeast Ohio Coalition for the Homeless and are not challenged by relators in this action,” Painter, 941 N.E.2d at 792, shows that the Decree’s validity was not before the Court. Surely it does not follow, however, that simply because two unchallenged directives were restricted to situations covered by the Decree, the Decree’s lawfulness was not otherwise put before the court. See id. at 795 (holding that Directives 2010-80 and 2010-87, which were at issue, were not justified by the Decree). 19 Trans. Oral Proceedings, 06-cv-896, June 27, 2012, at 59:18-20. 20 See 531 F.3d 406, 410 (6th Cir. 2008).
23

partially deficient provisional ballot will count-under state law-would deprive state courts of their long-established role as the final arbiter on matters of state law”).
The Painter Court more specifically noted, as well, that it had jurisdiction to decide provisional ballot law, notwithstanding federal court orders. See id. at 793 (“[T]he Help America Vote Act . . . ‘conspicuously leaves . . . to the States’ the determination of whether a provisional ballot will be counted as a valid ballot.’”) (quoting State ex rel. Skaggs v. Brunner 549 F.3d 468, 477 (6th Cir. 2008) (additional quotations omitted)). Hence, the Secretary’s argument that the Painter Court left the Decree’s orders intact out of misplaced deference fails.
Finally, the Plaintiffs’ position that the Painter Court did not interpret a conflict between Ohio law and the Decree has been corroborated by the Defendants, who previously represented on the record in this case, after Painter, that “State Defendants interpret the Consent Decree as requiring them to do no more than what Ohio election law already requires or allows.” (Dkt. 219 at 3.) For the reasons expressed herein, the Court agrees with Plaintiffs, and with the position maintained by counsel for the State Defendants for the past two years prior to Relators’ instant challenge. There is no conflict between the Decree’s orders and Ohio’s election law pertaining to provisional ballots, as interpreted by the Ohio Supreme Court. The Defendants’ alleged contradicting mandates facing the Secretary are illusory.21 The Painter Court held that the Secretary’s can, and must, implement and follow the Decree as well as the rest of Ohio election law.
C. Have Defendants Satisfied their Burden for Vacating the Decree
21 (See State Reply, at 6) (“This conflict falls at the feet of the Secretary of State and other state officials: Either they must respect Ohio law and the Painter decision, or they must follow the contrary procedures acquiesced to by their predecessors in the 2010 consent decree.”)
24

The Court must now determine whether, in light of its preliminary rulings, any sufficient ground remains for vacating the Decree. Defendants’ only asserted basis for vacating the Decree, however, was its alleged invalidity due to it conflicting with Ohio statutory law. Because that precise issue has been rejected previously by this Court, see Section III.A., supra, and, alternatively, because the Defendants’ substantive arguments put forth here for finding such a conflict lack merit, supra Section III.B., Defendants’ request to vacate the Decree on that basis fails. As Defendants articulate no alternative basis for vacating the Decree—i.e. one that does not rely on the Court adopting their proposition that the election officials’ compliance with the Decree is incompatible with complying also with Ohio law—the Defendants’ request to vacate the Decree must be denied.
Plaintiffs insist, additionally, that even if Defendants succeeded in proving a conflict between the Decree and Ohio law, that showing alone would not be a sufficient basis to vacate the Decree. Plaintiffs argue that under Fed. R. Civ. P. 60(b) and the applicable case law governing federal consent decrees, it would be improper for the Court to vacate the Decree without first finding that doing so would not result in a constitutional violation. (See Plaintiffs’ Reply, at 16).22 Defendants disagree, arguing that Plaintiffs’ reliance on Fed. R. Civ. P. 60(b)(4) and (5) is misplaced, because this Decree was not meant as a final order, and it was not entered as a result of finding a federal violation. Defendants provide cases from several circuits (other than the Sixth) in support of their claim that where, as here, the consent decree was not settled to remedy any federal violations, the Decree’s invalidity due to a conflict with state law is sufficient to reopen the decree.
22 Citing Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 391 (1992) (providing standards for modifying an institutional reform consent decree and holding, inter alia, that “[o]f course, a modification [of a consent decree] must not create or perpetuate a constitutional violation.”)
25

The Court will address seriatim the applicability of Rule 60(b) to the Defendants’ request to vacate the Decree, and then the appropriate standard that must be met to terminate the Decree under Rule 60(b). The parties, through their widely divergent positions on the issue, display a manifest need for clarification on the applicable standard for modification or, as in this instance, termination of the Decree. Particularly in light of Plaintiffs’ outstanding motion to modify the decree which has yet to be decided, (see Dkt. 288), a discussion is warranted.
1. Applicability of Rule 60(b) to Defendants’ Request to Vacate the Decree Plaintiffs argue that the only available procedures through which Defendants may bring
their current request to vacate the Decree are Rule 60(b)’s narrow provisions for a party seeking post-judgment relief from a final order, either for voidness of the judgment or due to significant changes in circumstances. See Fed. R. Civ. P. §§ 60(b)(4) (relief if the “judgment is void”), (60)(b)(5) (describing relief under changed circumstances where continued enforcement of the decree is no longer necessary).23 Plaintiffs rely primarily on the Supreme Court’s decision in
23 Rule 60(b) states, in full: (b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief. 26

Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992), in support of their proposed application of Rule 60(b) to Defendants’ request. Rufo provided the accepted standard for modifying institutional reform decrees under Rule 60(b)(5), which Plaintiffs insist is the only possible provision under which Defendants’ current request can be granted. (See Plaintiffs’ Brief, at 3-4.)
Defendants respond that Rufo’s application of Rule 60(b)(5) is inapplicable to this request to vacate the Decree for multiple reasons. First, the Decree’s own internal modification provision providing that “any of the parties may file a motion with the Court to modify, extend or terminate this Decree for good cause shown” supersedes Rule 60(b). (See Decree ¶ 11) (emphasis added). Second, Defendants argue the Decree is distinguishable from the Rufo line of cases enforcing Rule 60(b)’s standards because it was not entered pursuant to a finding of a federal constitutional violation. Relators also argue that even if Rule 60(b) applies, the Sixth Circuit has reasoned that under 60(b)(6)’s catch-all provision permitting relief from a judgment for “any other reason that justifies relief,” Fed. R. Civ. P. 60(b)(6), the unenforceability of the Decree and/or inconsistency of the Decree with Ohio law is grounds for vacating.24
Federal consent judgments are “hybrid” documents, see Brown v. Neeb, 644 F.2d 551, 557 (6th Cir. 1981), exhibiting contradicting natures. For, as stated by the Supreme Court in Rufo, while “[a] consent decree no doubt embodies an agreement of the parties and thus in some respects is contractual in nature . . . it is an agreement that the parties desire and expect will be reflected in, and be enforceable as, a judicial decree that is subject to the rules generally
24 (See Relators’ Reply, at 7) (citing United States v. 32.40 Acres of Land, 614 F.2d 108, 114 (6th Cir. 1980) (reversing a district court’s refusal to vacate a stipulated condemnation judgment where the government attorney entered into it without authority, concluding that “[t]he District Court should have granted the motion to vacate judgment under Rule 60(b)(6)”)).
27

applicable to other judgments and decrees.” 502 U.S. at 379. Consent decrees have been utilized by federal district courts in a number of different scenarios, to achieve a number of important objectives;25 however, regardless of the context, “a district court is not merely an instrument of a consent decree or of the parties’ stipulations with respect to it.” See Cleveland Firefighters for Fair Hiring Practices v. City of Cleveland, 669 F.3d 737, 742 (6th Cir. 2012). For any consent decree, the Court must exercise its “sound judicial discretion” prior to modifying the Decree’s terms. See Rufo, 502 U.S. at 380 (quoting Railway Employes’ v. Wright, 364 U.S. 642, 650-651 (1961)).
The Court’s analysis of the applicable standard to Defendants’ request to terminate this Decree is assisted by two important facts which are not in dispute. First, there is no longer any dispute that all of the Defendants challenging the validity of the Decree in these proceedings, including the Relators, are parties to the Decree. This Court confirmed this in its prior ruling.26 Second, pursuant to the Decree’s own stipulated terms, the Decree was not entered pursuant to any findings of constitutional violations, or any legal violations, by the Defendants. (See Decree, at 2.) (expressly stating that it “shall in no way constitute an adjudicating or finding on the merits
25 See, e.g., Rufo (correctional institutional reform); Cleveland Firefighters for Fair Hiring Practices v. City of Cleveland, 669 F.3d 737, 742 (6th Cir. 2012) (remedying discriminatory employment practices); Ford Motor Co. v. Mustangs Unlimited, Inc., 487 F.3d 465 (6th Cir. 2007) (private parties’ voluntary trademark settlement judgment); Cleveland County Ass’n for Gov’t by the People v. Cleveland County Bd. of Comm’rs, 142 F.3d 468, 478-79 (D.C. Cir. 1998) (consent decree implementing an election plan). 26 As stated by the Court in its May 11, 2012, Order:
As there is no dispute that the State of Ohio is a party to this action, there can accordingly be no dispute that Relators, who bring the Mandamus Action “on behalf of” the State of Ohio in their capacities as elected state officers and members of the General Assembly, are bound by the terms of the Consent Decree when acting in that capacity. (Order on Plaintiffs’ Urgent Motion to Enjoin, Dkt. 261, at 9.)
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. . . nor be construed as an admission by the Defendants of any wrongdoing or violation of any applicable federal or state law or regulation”).
Finally, despite Defendants’ contentions to the contrary, the Decree’s orders are final and binding. The Defendants point out that in the Court’s prior order awarding attorney’s fees, the Court determined “that the parties . . . did not intend the Decree to be final” for purposes of waiving future rights to move for fees. (Dkt. 234, at 8.) It is undoubtedly true, as the Court explained in its prior order, that the Decree’s language providing for an expiration date, future modifications, and the simple fact that the Decree was entered prior to a resolution on the merits of Plaintiffs’ outstanding claims, “lead[] to the single inference that the parties did not intend the Decree to be a final settlement of all claims.” (Id.)
So long as the Decree’s orders remain in force, however, they are nonetheless “final and binding” as between the parties. (Decree, at 2.); See Gonzales v. Galvin, 151 F.3d 526, 531 (6th Cir. 1998) (A “consent decree, although in effect a final judgment, is a contract founded on the agreement of the parties. . . . It should be construed to preserve the position for which the parties bargained. . . .”).
2. Standard for Vacating the Decree Rule 60(b), accordingly, applies to Defendants’ request to vacate the Decree’s orders. Rule 60(b)’s provisions apply to a party’s request for relief from consent decrees, which are final judgments included under the purview of the Rule. The Sixth Circuit has held that “Rule 60(b) is just as applicable to motions to modify or vacate consent judgments as it is to motions to modify or vacate other judgments.” Northridge Church v. Charter Twp. of Plymouth, 647 F.3d 606, 614 (6th Cir. 2011) (citing Rufo, 502 U.S. at 378, and applying Rule 60 despite the decree’s own
29

language providing for the court’s continuing jurisdiction to “to grant whatever legal and/or
equitable relief or remedies which the Court deems appropriate”).
The Decree is a valid, final order, and the Defendants’ request constitutes a post-
judgment request for relief from its terms. See Fed. R. Civ. P. 60(b). As Plaintiffs demonstrate,
the wealth of authoritative case law suggests Rule 60(b) applies to modifications by parties of
consent decrees, regardless of whether the decree involves an adjudication of a constitutional
violation. See Frew v. Hawkins, 540 U.S. 431, 441 (2004) (applying Rule 60(b)(5), which
simply “encompasses the traditional power of a court of equity to modify its decree in light of
changed circumstances” in the context of a consent decree that did not enforce any federal
violations).
Defendants argue, however, that irrespective of Rule 60(b)’s general applicability to
consent decrees, because this Decree was not entered pursuant to a federal constitutional
violation, a demonstrable conflict between its terms and state law renders its terms
unenforceable. In their briefs, as at oral argument, Defendants rely on a group of cases from
various other circuits which, they contend, have all enforced a rule requiring invalidation of a
federal consent decree where the parties agreed to override state law, unless the decree is remedying an adjudicated violation under federal law.27
27 See Perkins v. City of Chi. Heights, 47 F.3d 212, 216 (7th Cir. 1995) (a district court may approve a consent decree that overrides state law, but only “upon properly supported findings that such a remedy is necessary to rectify a violation of federal law.”); Keith v. Volpe, 118 F.3d 1386, 1393 (9th Cir. 1997) (“An alteration of the statutory scheme may not be based on consent alone; it depends on an exercise of federal power, which in turn depends on a violation of federal law.”); Cleveland County Ass’n for Gov’t by the People v. Cleveland County Bd. of Comm’rs, 142 F.3d 468, 478-79 (D.C. Cir. 1998) (vacating a consent decree implementing an election plan, holding that “if a violation of federal law necessitates a remedy barred by state law, the state law must give way; if no such violation exists, principles of federalism dictate that state law governs); Kasper v. Board of Election Comm’rs, 814 F.2d 332, 341 (7th Cir. 1987) (“A consent decree is not a method by which state agencies may liberate themselves from the statutes enacted by the legislature.”); St. Charles Tower, Inc. v. Kurtz, 643 F.3d 264, 270 (8th Cir. 2011) (“State actors cannot enter into an agreement allowing them to act outside their legal authority, even if that agreement is styled as a ‘consent judgment’ and approved by a court.”); League of Residential Neighborhood Advocates v. City of
30

Plaintiffs respond that the cases relied upon by Defendants in support of invalidating decrees where they conflict with state law are distinguishable because those cases either: (1) did not involve a challenge from a party to the decree, and thus did not implicate Rule 60(b); or (2) they were brought on direct appeal or collateral attack, and thus also did not proceed under Rule 60(b)’s standards for modification. Plaintiffs supply their own rebuttal off-circuit authority, expressly rejecting state officials’ challenge to their own decree because they lacked authority to enter into it. See Congregation Mischknois Lavier Yakov v. Board of Trustees for Village of Airmont, 301 Fed. App’x 14, 15 (2d Cir. 2008) (holding that, “the impropriety of the settlement stipulation under state law [does] not render the order of a federal court enforcing the settlement . . . void and therefore subject to challenge under Rule 60(b)(4)”).
The distinctions between the Defendants’ request to vacate here and the challengers to the decrees in the cases cited by Defendants, see supra note 27, are well-taken. None of those cases involved a party’s own post-judgment attack to a consent decree into which it entered.28 This is crucial, because it also means none of the courts was applying Rule 60(b) to the requests in those cases. Defendants’ failure to provide any Supreme Court or Sixth Circuit support for their position also augers against the Court’s adopting it. As demonstrated by Congregation Mischknois from the Second Circuit, which is more analogous to this case and specifically rejects the position maintained by Defendants here, the other circuits are split on whether a
Los Angeles, 498 F.3d 1052, 1055 (9th Cir. 2007) (“A federal consent decree or settlement agreement cannot be a means for state officials to evade state law.”). 28 At oral argument, the Court asked Defendants whether any of the cases they cited involved a party attacking its own judgment, as is the case here. Defense counsel offered the Cleveland County case from the D.C. Circuit, as involving a challenge of parties to their own consent agreement; however, counsel was mistaken. In Cleveland County, too, it was a third party association challenging the consent agreement reached between the NAACP and the board of commissioners. See Cleveland County, 142 F.3d at 471 (conferring standing upon challenger CCAGP only where the court determined its members’ voting rights sufficiently implicated by the parties’ agreement).
31

consent decree must be abrogated where the party officials acted outside their authority under state law. In rejecting the Defendants’ argument in Congregation Mischknois, the Second Circuit opined:
The defendants argue principally that they are now of the view that they did not have the right to enter into the agreement under state law in the first place. It does not follow that their due process rights were violated by their entering into it and subjecting themselves to an order of the court enforcing the settlement. Id. at 15-16. It is not essential, however, for the Court to decide which of the parties here has the better of the argument. The Court has determined that the parties to the Decree did not alter, change, or modify state law, supra, and hence the cases in support of Defendants’ argument that it must be abrogated on that basis are inapposite in determining the application of Rule 60(b) herein.29 Plaintiffs argue that, under Rule 60(b), Defendants’ request for vacating the Decree due to its invalidity in light of Painter constitutes either a request to void the judgment under Rule 60(b)(4), or a request for relief due to changed circumstances under Rule 60(b)(5). Plaintiffs contend that Rule 60(b)(4) provides no relief, because under United Student Aid Funds v. Espinosa, “Rule 60(b)(4) applies only in the rare instance where a judgment is premised either on a certain type of jurisdictional error or on a violation of due process that deprives a party of notice or the opportunity to be heard.” 130 S. Ct. 1377, 1380 (2010). Plaintiffs argue that Defendants cannot succeed with respect the Rule 60(b)(5), either, which authorizes relief where
29 Plaintiffs invite the Court, if necessary, to make a finding now that Ohio’s system for casting and counting provisional ballots violated the Constitution at the time the Decree was entered. (Plaintiffs Reply, at 12.) The Court refrains from engaging in such a determination, however, because, at least at this time, it is not necessary to resolve the issues, and moreover could arguably violate the terms of the Consent Decree. (See Decree, at 2, “[Decree] shall in no way constitute an adjudication on the merits”).
32

prospective application of a judgment is no longer equitable. Under Rufo, Plaintiffs contend,
Defendants’ alleged “change in law” does not satisfy their burden to modify the Decree.
Defendants are correct, however, that Rufo’s specific standards “to be applied in ruling
on Fed. R. Civ. P. 60(b) motions in institutional reform litigation,” Heath v. DeCourcy, 992 F.2d 630, 635 (6th Cir. 1993), 30 are not entirely applicable to the Decree’s regulation of state election practices.31 The Court also accepts Defendants argument that, as Defendants’ request to vacate
the decree is not specifically brought under Rule 60(b)(4), Espinosa’s standards for voiding a
judgment, while certainly useful, are not necessarily exhaustive. See Espinosa, 130 S.Ct. at 1371
(United filing a motion under Rule 60(b)(4) to void the judgment). Rule 60(b)(6)’s catchall
provision for relief may also provide a basis for the Defendants’ request. Rule 60(b)(6),
however, is an even more difficult standard for relief from a judgment, “appl[ying] only in
30 As excerpted by the Sixth Circuit in Heath, under Rufo, to modify a consent decree under Rule 60(b)(5): First, the movant must show that a “significant change in circumstances warrants revision of the decree.” Second, the movant has the burden of proving significant changes that cause a consent decree to be "onerous," "unworkable," or "detrimental to the public interest." Third, if a movant agreed to a consent decree while anticipating changes in conditions that would make its performance onerous, there is a "heavier" burden to show that the movant: (1) agreed to the consent decree in good faith; (2) made a reasonable effort to comply; and (3) should be relieved of its obligations. Fourth, the lower court must determine whether "their proposed modification is suitably tailored to the changed circumstances."
992 F.2d at 635 (internal citations from Rufo omitted). 31 The Supreme Court in Rufo stated that “[t]he standard we set forth applies when a party seeks modification of a term of a consent decree that arguably relates to the vindication of a constitutional right. Such a showing is not necessary to implement minor changes . . . unrelated to remedying the underlying constitutional violation.” Rufo, 502 U.S. at 383 (emphasis added). It is not clear, therefore, that the Supreme Court intended Rufo’s specific standards to apply to all consent decrees, particularly where, as here, no “underlying constitutional violations” have yet been found. Id.; see also Frew, 540 U.S. at 441 (“In Rufo, the Court explored the application of [Rule 60(b)(5)] to consent decrees involving institutional reform.”); Heath, 992 F.2d at 635 (Rufo provided the “restrictive, but flexible, standard to be applied in ruling on Fed. R. Civ. P. 60(b) motions in institutional reform litigation”).
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exceptional or extraordinary circumstances which are not addressed by the first five numbered clauses of the Rule.” Ford Motor Co., 487 F.3d at 468.
In its earlier decision in System Federation No. 91 Railway Employees’ Dep’t v. Wright, the Supreme Court set forth more general criteria for a district court to weigh before modifying a consent decree under Rule 60(b), holding that “a sound judicial discretion may call for the modification of the terms of an injunction decree if the circumstances, whether of law or fact, obtaining at the time of its issuance have changed, or new ones have since arisen.” 364 U.S. 642, 647 (1961). The Sixth Circuit has stated, in turn, that “[a] district court must look to the specific terms of a consent decree in determining whether and when to terminate supervision or jurisdiction over it.” Gonzales v. Galvin, 151 F.3d 526, (6th Cir. 1998).
The Gonzales Court held that factors to be considered include: (1) any specific terms providing for continued supervision and jurisdiction over the consent decree; (2) the consent decree’s underlying goals; (3) whether there has been compliance with prior court orders; (4) whether defendants made a good faith effort to comply; (5) the length of time the consent decree has been in effect; and (6) the continuing efficacy of the consent decree’s enforcement. Id at 531. The Gonzales criteria support Defendants’ argument that the Decree’s own internal modification provision should at least inform whether to grant the basis for relief. Paragraph 11 of the Decree provides that, “any of the parties may file a motion with the Court to modify, extend or terminate this Decree for good cause shown.” (Decree). The Gonzalez Court made clear, however, that “[n]otwithstanding this list of ‘factors,’ a district court may not terminate its jurisdiction until it finds both that Defendants are in compliance with the decree’s terms and that the decree’s objectives have been achieved.” Gonzalez, 151 F.3d at 531l; see also Cleveland Firefighters, 669 F.3d at 741 (quoting the same). The “good cause” required by Paragraph 11,
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therefore, must, in the Court’s view, at the very least conform to the baseline for termination provided by the Sixth Circuit.
The Sixth Circuit has recently reaffirmed the wide discretion of a district court to determine whether termination of a consent decree is appropriate. Cleveland Firefighters, 669 F.3d at 741. (“The court . . . has discretion with respect to whether and how a consent decree shall remain in effect, including the discretion to terminate the decree altogether.”) (citing Rufo, 502 U.S. at 380; Gonzales, 151 F.3d at 531). Given the Court’s precautionary principle that, before terminating the decree, a district court should first ensure that “the decree’s objectives have been achieved,” see id., the Court would not exercise its discretion to terminate or “vacate” the Decree, which was settled prior to adjudicating the merits of Plaintiffs’ alleged constitutional violations, without first making sufficient evidentiary findings that no further violations would result from the Decree’s termination. See Cleveland Firefighters, 669 F.3d at 742 (reversing termination of consent decree and remanding to the trial court to “make a careful finding” on whether extension of decree was “necessary to remedy the underlying claims” before “deciding whether to extend or terminate the decree”).
3. Application of Rule 60(b) to Defendants’ Request Regardless of which provision in Rule 60(b) Defendants’ request to vacate the Decree is brought under, where, as here, there are outstanding allegations by the Plaintiffs of ongoing constitutional violations, and where this Court and the Sixth Circuit have confirmed that removing the Decree’s protections for provisional voters could risk further deprivations of constitutional rights,32 the Court would deny the request unless and until Defendants demonstrate
32 See Hunter, 635 F.3d at 243–44 (“[W]e have substantial constitutional concerns regarding the invalidation of votes cast in the wrong precinct due solely to poll-worker error. . . [p]articularly when there is evidence of pollworker error, the categorical treatment of miscast ballots provided by Ohio law is troubling.”).
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conclusively that no further constitutional violations would result from the Decree’s termination. Defendants have not attempted to make such a showing here, and as a result, their request to vacate the Decree is denied.
Plaintiffs have submitted evidence along with their briefing which, they submit, affirmatively establishes that terminating the Decree will add to ongoing constitutional violations in Ohio with respect to provisional ballots. The determination of this threshold issue of the Decree’s validity, however, is not the appropriate juncture to examine Plaintiffs’ claims of ongoing violations. Defendants’ request to vacate the Decree is denied here on multiple other grounds. Moreover, Defendants may suffer prejudice from the Court’s conducting an evidentiary inquiry at this time, as they have not yet had an opportunity to respond fully to the Plaintiffs’ newly-submitted evidence. The Plaintiffs’ pending request to modify the Decree may well call for such a determination, and will allow Defendants time to conduct their own discovery and respond.
IV. CONCLUSION The Court concludes that the Defendants’ claim that the Decree is invalid because of its conflict with Ohio law, is barred by res judicata. Defendants are precluded from re-litigating this issue by the Court’s final decision in Hunter v. Hamilton County Bd. of Elections (“Hunter II”), Case No. 10-cv-820, 2012 WL 404786 (S.D. Ohio Feb. 8, 2012), holding that the Decree is valid, despite the Ohio Supreme Court’s decision in State ex rel. Painter v. Brunner, 941 N.E.2d 782 (Ohio 2011). The Court, alternatively, concludes that Defendants’ substantive arguments in favor of vacating the Decree on the basis of its orders conflicting with Ohio law’s requirements also fail on the merits. Finally, to satisfy the standards of Rule 60(b) for obtaining the requested
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relief, Defendants’ must establish that vacating the Decree will not result in any further constitutional violations. Defendants have not met this burden.
For the foregoing reasons, the Consent Decree in this case is VALID, and remains binding upon the parties. Defendants’ request to vacate the Decree is DENIED.
IT IS SO ORDERED.

Dated: July 9, 2012

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

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

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

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

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Case No. 2:12-CV-562

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JUDGE ALGENON L. MARBLEY

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Magistrate Terence P. Kemp

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THE NORTHEAST OHIO COALITION :

FOR THE HOMELESS, et al.,

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:

Plaintiffs,

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v.

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JON HUSTED, in his official capacity as :

Secretary of the State of Ohio,

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Defendant.

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and

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STATE OF OHIO

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Intervenor-Defendant

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

OPINION AND ORDER

I. INTRODUCTION

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

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

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

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

ballots is, hereby, VACATED.

IT IS SO ORDERED.

Algenon

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

Dated: October 26, 2012

22

 
 Service Employees Intern. Union, Local 1 v. Husted, 906 F.Supp.2d 745 (2012)

906 F.Supp.2d 745 United States District Court,
S.D. Ohio, Eastern Division.
SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1, et al., Plaintiffs, v. Jon HUSTED, et al., Defendants.
The Northeast Ohio Coalition for the Homeless, et al., Plaintiffs, v.
Jon Husted, In His Official Capacity as Secretary of the State of Ohio, Defendant. and
State of Ohio Intervenor–Defendant.
Case Nos. 2:12–CV–562, 2:06–CV–896. | Oct. 26, 2012.
Synopsis Background: Nonprofit organization representing homeless, local union, and others filed § 1983 actions against Ohio Secretary of State challenging constitutionality of several provisions of Ohio law requiring voters to provide one of several types of identification in order to cast regular ballot in state and federal elections held in Ohio. State and political party intervened.   Following   denial   of   defendants’   request   to   vacate consent decree, 2012 WL 2711393, entry of preliminary injunction, 887 F.Supp.2d 761, 2012 WL 3643064, and affirmance in part, reversal in part, and remand, 696 F.3d 580, local union brought renewed motion for preliminary injunction with respect to wrong–location provisional ballots, and both plaintiffs and Secretary moved to modify consent decree.
Holdings: The District Court, Algenon L. Marbley, J., held that:
[1] preliminary injunction was warranted to prevent Secretary from engaging in systemic disqualification of “wrong location, wrong precinct ballots” cast owing to poll-worker error, and
[2] consent decree provision relating to “deficient affirmation” ballots would be excised.

Order accordingly.
Attorneys and Law Firms
*747 Michael John Hunter, Cathrine J. Harshman, Hunter Carnahan Shoub & Byard, Columbus, OH, Barbara J. Chisholm, Danielle E. Leonard, Stacey M. Leyton, Stephen P. Berzon, Altshuler Berzon LLP, San Francisco, CA, Donita Judge, Penda Hair, Uzoma Nkwonta, Advancement Project, Washington, DC, for Plaintiffs.
Aaron D. Epstein, Erin Butcher—Lyden, Ohio Attorney General’s  Office,  Columbus,  OH,  for  Jon  Husted.
Kevin Shook, Frost Brown Todd LLC, Columbus, OH, for Intervenor–Defendant.
Opinion
OPINION AND ORDER
ALGENON L. MARBLEY, District Judge.
I. INTRODUCTION
These are two related actions in this Court: Service Employees’  International  Union,  Local  1,  et.  al.  v.  Husted,   et. al., Case No. 2:12–cv–562 (“the SEIU case”) and The Northeast Ohio Coalition for the Homeless, et. al. v. Husted & State of Ohio, Case No. 2:06–cv–896 (“the NEOCH case”). Before the Court are three distinct motions: (1) SEIU Plaintiffs’   Renewed   Motion   for   Preliminary Injunction with Respect to Wrong–Location Provisional Ballots (SEIU Dkt. 84); (2) NEOCH Plaintiffs’ Motion to Modify April 19, 2010 Consent Decree (NEOCH Dkt. 338) and; (3) NEOCH Defendants’   Motion to Modify April 19, 2010 Consent Decree (NEOCH Dkt. 342). SEIU Plaintiffs promptly renewed their   Motion   in   light   of   the   Sixth   Circuit’s   Decision   of   October 11, 2012, affirming in part and reversing in part this   Court’s   injunction   on   the   issues   of   “right-location, wrong-precinct” provisional ballots and provisional ballots with deficient affirmations. NEOCH v. Husted,
1

Service Employees Intern. Union, Local 1 v. Husted, 906 F.Supp.2d 745 (2012)

696 F.3d 580 (6th Cir.2012) (“the NEOCH appeal”). Following that remand, Plaintiffs and Defendants in the NEOCH case each moved to modify the April 19, 2010 Consent Decree. As these cases were consolidated for the purpose of appeal, the Court continues to recognize that consolidation on remand. Owing to the pendency of the November   6,   2012   election,   at   Defendants’   request,   the   Court ordered an expedited briefing schedule for these motions and heard oral argument on October 24, 2012. These issues have been fully briefed and are now ripe for decision.
II. STATEMENT OF FACTS
A. The NEOCH Case
The SEIU case and the NEOCH case, the subjects of a preliminary injunction and consent decree respectively, are both actions originally brought in this Court. Plaintiffs in both cases are groups of interested voters suing on behalf of their members to prevent the Secretary of the State of Ohio from disqualifying provisional ballots in the November 6, 2012 election, an *748 alleged violation of Plaintiffs’  members’  constitutional  rights.
The NEOCH case began in 2006, when Plaintiffs challenged  Ohio’s  amended  voter  identification  laws.  The   parties initially resolved the lawsuit, prior to a final adjudication on the merits, by entering a consent decree on April 19, 2010 (“the Consent Decree”). The Consent Decree, “among other provisions, mandated that the Board [of Elections] ‘may not reject a provisional ballot cast by a voter, who uses only the last four digits of his or her social security number as identification’ [“SSN–4 ballots”] if certain deficiencies in the ballot, including being cast ‘in the wrong precinct, but in the correct polling place,’ were the result of poll-worker error.” Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219, 233 (6th Cir.2011) (“Hunter I ”) (quoting Consent Decree, at ¶ 5). This Court upheld the validity of Consent Decree earlier this year, a ruling affirmed in part and remanded in part by the Sixth Circuit in the NEOCH appeal, issued on October 11, 2012. NEOCH, 696 F.3d 580. Following the remand, Plaintiffs and Defendants both moved to modify the   Consent   Decree,   based   on   the   Sixth   Circuit’s   holding   that treating SSN–4 ballots differently from provisional ballots obtained using other forms of identification likely

violated equal protection under the Fourteenth Amendment. Id. at 14.

B. The SEIU Case
During the ongoing NEOCH litigation, in early 2012, a group of organizations sued Ohio Secretary of State Husted   to   challenge   Ohio’s   rules   governing   the   counting   of   provisional   ballots.   This   Court’s   previous   decision,   SEIU Local 1 v. Husted, 887 F.Supp.2d 761, 2012 WL 3643064 (S.D.Ohio Aug. 27, 2012) granted Plaintiffs’   request to enjoin the Secretary from disqualifying “right location, wrong precinct” provisional ballots resulting from “poll-worker error,” an injunction upheld in the NEOCH appeal. NEOCH, 696 F.3d at 597–98.
The facts giving rise to the case are discussed in the prior decision. SEIU Local 1, 887 F.Supp.2d at 768–77, 2012 WL 3643064 at *2–10. On appeal, however, the Sixth Circuit vacated a portion of the preliminary injunction which required the Secretary to count provisional ballots cast with deficient affirmations, deficiencies which this Court found to be due to poll-worker error. NEOCH, 696 F.3d at 599–601. To support the instant Motion, Plaintiffs have   combed   the   State’s   “Incident Reports” from recent elections to identify numerous examples of poll-worker error causing provisional ballots cast in the wrong location, wrong precinct.1 They rely on their voluminous evidentiary   record   discussed   in   this   Court’s   previous   SEIU decision. SEIU Local 1, 887 F.Supp.2d at 768–77, 2012 WL 3643064 at *2–10. Plaintiffs’  Renewed  Motion   for Preliminary Injunction seeks to expand the scope of this   Court’s   prior   “right location, wrong precinct” injunction to likewise enjoin the Secretary from disqualifying ballots cast in the wrong location and in the wrong precinct (“ ‘wrong location, wrong precinct’ ballots”) due to poll-worker error.

1

See SEIU Dkt. 12 with attached Exhibits A—ZZ.

III. SEIU PLAINTIFFS’  RENEWED  MOTION  FOR   PRELIMINARY INJUNCTION
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Service Employees Intern. Union, Local 1 v. Husted, 906 F.Supp.2d 745 (2012)

A. Standard for Granting Preliminary Injunction
[1] [2] Plaintiffs’   Motion,   to   enjoin   the   Secretary   from   enforcing certain provisions of Ohio law in the upcoming November 6, 2012 election, invokes the four-factor *749 balancing test for determining whether an injunction is appropriate under Fed.R.Civ.P. 65. The Court must weigh the following factors:
(1) whether the movant has a strong likelihood of success on the merits;
(2) whether the movant would suffer irreparable injury without the injunction;
(3) whether issuance of the injunction would cause substantial harm to others; and
(4) whether the public interest would be served by the issuance of the injunction.
Hunter I, 635 F.3d at 233. These four factors “guide the discretion of the district court[;]” however, “they do not establish a rigid and comprehensive test.” Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 102 (6th Cir.1982). Whether the combination of the factors weighs in favor of issuing injunctive relief in a particular case is left to the discretion of the district court. See Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir.2000); see also Purcell v. Gonzalez, 549 U.S. 1, 4–5, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006) (in reviewing an application to preliminarily   enjoin   operation   of   Arizona’s   voter   identification procedures, the Supreme Court recognized courts’  need  to  “weigh, in addition to the harms attendant upon issuance or nonissuance of an injunction, considerations   specific   to   election   cases’   additional   exigencies,” and stated these complex determinations require “deference to the discretion of the District Court”).
[3] The Secretary has argued previously that, for Plaintiffs to meet their burden to obtain a preliminary injunction, they must “establish [their] case” by “clear and convincing evidence.” (Secretary Opp., SEIU Dkt. 28 at 10) (citing Damon’s   Rests.,   Inc.   v.   Eileen   K   Inc., 461 F.Supp.2d 607, 621 (S.D.Ohio 2006)). While the Sixth Circuit has held that “the proof required for the plaintiff to obtain a preliminary injunction is much more stringent than the proof required to survive a summary judgment motion,” Leary, 228 F.3d at 739, the Circuit further clarified that “a party is not required to prove his case in full at a preliminary injunction hearing and the findings of

fact and conclusions of law made by a court granting the preliminary injunction are not binding at trial on the merits.” Certified Restoration Dry Cleaning Network, L.L. C. v. Tenke Corp., 511 F.3d 535, 542 (6th Cir.2007) (citations omitted). For a plaintiff to receive the requested injunction, “it is ordinarily sufficient if the plaintiff has raised questions going to the merits so serious, substantial, difficult, and doubtful as to make them a fair ground for litigation and thus for more deliberate investigation.” NEOCH, 696 F.3d 580 (quoting Six Clinics Holding Corp., II v. Cafcomp Sys., Inc., 119 F.3d 393, 402 (6th Cir.1997)).
[4] [5] A plaintiff has “the burden of establishing a clear case of irreparable injury and of convincing the Court that the balance of injury favor [s] the granting of the injunction.” Garlock, Inc. v. United Seal, Inc., 404 F.2d 256, 257 (6th Cir.1968). In the election law context, “[t]hese [four] factors are not prerequisites that must be met, but are interrelated considerations that must be balanced together;” the factors do not each impose a distinct evidentiary burden on the Plaintiffs. Northeast Ohio Coalition for the Homeless v. Blackwell, 467 F.3d 999, 1009 (6th Cir.2006) (stating, “[f]or example, the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movants will suffer absent the stay”).2

2

In any event, the Secretary does not dispute that the

prospective injury to Plaintiffs in this case—the

complete   denial   of   an   individual’s   right   to   vote—is

irreparable. See, e.g., Miller v. Blackwell, 348

F.Supp.2d 916, 922 (S.D.Ohio 2004).

*750 B. Law and Analysis
1. Likelihood of Success on the Merits
[6] Just  as  with  the  Plaintiffs’  motion  for  an  injunction  on   the “right location, wrong precinct” issue, Plaintiffs bring their constitutional claims under 42 U.S.C. § 1983. A claim under 42 U.S.C. § 1983 has two elements: (1) the defendant must be acting under the color of state law; and (2) the offending conduct must deprive the plaintiff of rights secured by federal law. See League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 475 (6th
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Service Employees Intern. Union, Local 1 v. Husted, 906 F.Supp.2d 745 (2012)

Cir.2008). There is no dispute that the Secretary acts under   the   color   of   state   law   when   enforcing   Ohio’s   election laws.
The  parties  do  dispute  whether  the  Secretary’s  actions  and   directives, specifically in directing county boards of election to reject provisional ballots cast at the “wrong location, wrong precinct,” deprive  Plaintiffs’  members  of   their constitutional rights to equal protection and due process under the Fourteenth Amendment. In light of the Sixth  Circuit’s  October  11,  2012  Opinion,  however,  there is no longer any doubt that “the unreasonableness and fundamental unfairness of disqualifying wrong-precinct ballots caused by poll-worker error (equal protection and due process)” is a “likely constitutional violation[ ] ... requiring injunctive relief.” NEOCH, 696 F.3d at 591. While   the   Sixth   Circuit   affirmed   this   Court’s   previous   finding that disqualification of “right location, wrong precinct ballots” likely violates the equal protection and due process guarantees under the Fourteenth Amendment, there is no logical or legal rationale to distinguish the disqualification of “wrong location, wrong precinct” ballots, provided they are also attributable to poll-worker error.
[7] [8] As the Sixth Circuit noted, when the state places a “substantial” burden on the right to vote—one that is greater than a “reasonable, nondiscriminatory restriction” but less than a “severe burden”—courts apply the Anderson/Burdick test. That test compels this Court to:
weigh ‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiffs’  rights.’
Burdick v. Takushi, 504 U.S. 428, 434, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 789, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983)). Since there is no specific test for the validity of voting regulations, this Court simply “must weigh the burden   on   voters   against   the   state’s   asserted   justifications   and make the hard judgment that our adversary system demands.” Obama for America v. Husted, 697 F.3d 423 (6th Cir.2012).
The   burden   on   voters   imposed   by   Ohio’s   systemic   disqualification of “wrong location, wrong precinct”

ballots  is  substantial.  Disqualification  of  one’s  ballot  is  no   victimless legal abstraction; it is disenfranchisement, the loss of the fundamental right to participate in the democratic political process. To disenfranchise a single voter is a matter for grave concern, but the Sixth Circuit affirmed   this   Court’s   finding   that   Ohio’s   disqualification   of provisional ballots in recent elections has far exceeded that: more than 14,000 provisional ballots were disqualified in 2008 and more than 11,000 were disqualified in 2010. NEOCH, 696 F.3d at 592–94. Unfortunately, the records *751 kept by Ohio for those years do not allow us to distinguish between disqualifications for “right location, wrong precinct” and “wrong location, wrong precinct.” Ohio does, however, have such data for the 2011 election. In 2011, more than 1,800 disqualified provisional ballots were cast in the “right location, wrong precinct,” while more than 2,400 disqualified ballots were cast in the “wrong location, wrong precinct.” (NEOCH Dkt. 9, Ex. B) The State of Ohio denied these citizens their right to vote by systemically disqualifying all ballots cast in the wrong location or wrong precinct, with no individual due process or inquiry into the cause of the ballot error. Although these disqualifications affect only “provisional ballots,” that fact “does not justify this additional burden; as ... Ohio law now requires thirteen different categories of voters to cast provisional ballots, ranging from individuals who do not have an acceptable form of identification to those who requested an absentee ballot or whose signature was deemed by the precinct official not to match the name on the registration forms.” NEOCH, 696 F.3d at 595.
Over the course of this litigation, Plaintiffs have presented “voluminous evidence” of disqualifications due to poll-worker errors. Id. at 592–94. Plaintiffs’   Motion   specifies four reasons for these errors with regard to “wrong location, wrong precinct” ballots, all of which have been documented to occur in recent elections:
(1) Poll workers provide voters with the wrong-precinct ballots in the wrong location because poll   workers   incorrectly   determine   the   voter’s   precinct by misunderstanding the precinct location guide.
(2) Poll workers provide voters with the wrong-precinct ballots in the wrong location even though they know voters are not assigned to that precinct or location because poll workers do not understand such ballots are rejected.
(3) Poll workers, under the misapprehension they are
4

Service Employees Intern. Union, Local 1 v. Husted, 906 F.Supp.2d 745 (2012)

simply helping people to vote, distribute wrong-precinct ballots to all voters without attempting to locate their correct precinct because they do not understand such ballots are rejected.
(4) Poll workers misdirect voters to cast wrong-precinct ballots in the wrong location as a result of incorrect direction from county boards.
(SEIU Dkt. 84 at 14) These poll-worker errors are the same as those that resulted in “right location, wrong precinct” ballots being cast and rejected; the errors occur regardless of whether a voter arrives at the correct or incorrect polling location. Thus, the burden on voters imposed   by   Ohio’s   disqualification   of   “wrong location, wrong precinct” provisional ballots caused by pollworker error is identical to the burden imposed by the disqualification of “right location, wrong precinct” provisional ballots caused by poll-worker error. The Sixth Circuit affirmed that burden to be an unconstitutional burden on the right to vote properly remedied by an injunction directing the Secretary of State to count “right location, wrong precinct” ballots caused by poll-worker error. NEOCH, 696 F.3d at 599.
Defendants contend that “the requirement to vote in the right location is not a severe burden.” This Court agrees. If it were a severe burden, this Court would have to apply strict scrutiny to the challenged law. That is of no import, however,   as   the   Court   finds   Ohio’s   disqualification   of   “wrong location, wrong precinct” ballots is a substantial burden on the right to vote which is subject to the Anderson/Burdick test, as was the disqualification of “right location, wrong precinct” *752 ballots. “Wrong location, wrong precinct” ballot disqualifications are, in one sense, still more troubling as there have been numerous instances in which poll workers have directed voters to incorrect polling locations, even when voters originally arrived at the correct location.3 Defendants’ rebuttal that there are multiple methods for voters to determine their polling location and precinct is unpersuasive because, as the Sixth Circuit stated, the law “effectively requires voters to have greater knowledge of their precinct, precinct ballot, and polling place than poll workers.” NEOCH, 696 F.3d at 595 (emphasis added). Furthermore,   though   Defendants’   brief   suggests   voters   bear the responsibility of finding the correct polling location, the Sixth Circuit held only last year that:

3

See, e.g., SEIU Dkt. 12 ¶ 54 & 12–43 at 2 (Cuyahoga

2011 Incident Reports) (“I must inform you of the

many (at least 40 voters) who were misguided and directed to vote at our station. Most of them informed me that they were sent by [a poll worker at another precinct] in error. Some of the voters claimed they were sent to as many as (3) different locations—by mistake.”); SEIU Dkt. 12 ¶ 54 & 12–45 at 10 (Franklin County 2011 Incident Reports) (“Polling Location sent them to another location 2 times.”); SEIU Dkt. 12 ¶ 54 & 12–41 at 12 (Clermont 2010 Incident Reports) (“B of E employees sent a handicapped [provisional voter] to New Richmond when they belonged here ... The difficulties of wandering around in the wrong place are amplified when in a wheelchair.”); SEIU Dkt. 11 ¶ 5a & 11–3 at 2 (Lucas County 2008 Incident Reports) (Voter “went to East Toledo Family Center where [she] voted in primary. There I was told to come to East Side Central ... they told her ... to go back to East Toledo Family Center—that the people there were ‘reading the book’ wrong.”).
Ohio has created a system in which state actors (poll workers) are given the ultimate responsibility of directing voters to the right location to vote. Yet, the state law penalizes the voter when a poll worker directs the voter to the wrong precinct, and the penalty, disenfranchisement, is a harsh one indeed. To disenfranchise citizens whose only error was relying on poll-worker instructions appears to us to be fundamentally unfair. Hunter I, 635 F.3d at 243 (emphasis added). The Sixth Circuit did not deem it reasonable that an individual voter should be better able to   navigate   Ohio’s   labyrinthine voting system than a trained poll worker, and neither does this Court. This Court, therefore, finds substantial the burden imposed   on   a   citizen’s   right   to   vote   by   automatically   disqualifying a “wrong location, wrong precinct” provisional ballot where a poll worker caused the error. The State attempts to overcome the weight of the burden on the right to vote by relying, as it did in its previous appeal, on its interest in “maintaining a precinct-based voting system.” (Dkt. 87 at 9) The Sixth Circuit has recognized  the  State’s  legitimate  interest  in  precinct-based voting. Sandusky Cnty. Democratic Party v. Blackwell, 387 F.3d 565, 568–69 (6th Cir.2004). As this Court found previously, however, “[t]he relevance of Sandusky to the Plaintiffs’  challenges  to  Ohio  law  ...  is  limited.   Sandusky was decided before Ohio instituted its amended Voter ID requirements in 2006 ... that case did not address the constitutionality of the precinct eligibility requirement as applied to provisional ballots cast in the wrong precinct as
5

Service Employees Intern. Union, Local 1 v. Husted, 906 F.Supp.2d 745 (2012)

a result of poll-worker error.” SEIU Local 1, 887 F.Supp.2d at 787, 2012 WL 3643064 at *19.
The State argues that its interest in precinct-based voting would   be   imperiled   by   Plaintiffs’   proposed   injunction   because it is a “vote anywhere” remedy that would result in chaos. That argument mischaracterizes the requested relief and is incorrect. *753 Plaintiffs’  Motion  in  no  way   requests a “ ‘vote anywhere’ injunction in each Ohio county.” A provisional ballot cast in the “wrong location, wrong precinct,” as with a provisional ballot cast in the “right location, wrong precinct,” will only be counted if caused by poll-worker error. If a voter attempts to cast her ballot at the wrong polling location, her ballot will not be counted unless the poll worker fails to perform her legal duty to inform the voter of: (1) her correct polling location and precinct; and (2) that her ballot will not be counted unless she casts it at her correct precinct. After receiving this information, if the voter insists on casting a ballot at the wrong location and in the wrong precinct, it will not be counted. Voters cannot vote anywhere. Voters can only vote in the correct precinct. Only if poll workers deny a voter her constitutional rights will her provisional ballot in the wrong precinct be counted. If poll workers obey the law, not a single vote cast in the wrong precinct will be counted in the November 6, 2012 election.
The State concedes that when a voter arrives in the wrong precinct, “[poll workers] must instruct the voter properly about travelling to the right place.” (SEIU Dkt. 87 at 8) Therefore, the only substantive dispute the State has with Plaintiffs’   proposed   injunction   is   that   it   believes   poll   workers should not be required to “stop to record” their proper instructions to the wayward voter. Regrettably, Plaintiffs’   evidence   shows   that   under   the   current   system,   poll workers simply are not giving voters the proper instructions. (Dkt. 84 at fn. 4) The many recorded incidents of poll workers giving voters incorrect instructions demonstrate that there is no way to determine whether poll-worker error caused a provisional ballot to be cast in the wrong location without a written affirmation that poll workers have directed voters to the correct polling location. The State need not allow voters to vote anywhere but their own precinct, but it is reasonable that the State informs voters of that fact, and where they can legally vote, before disenfranchising them.
Significantly, expanding the scope of the current injunction to also encompass “wrong location, wrong precinct ballots” imposes minimal additional burden on the   State.   In   response   to   this   Court’s   previous   grant   of   a   preliminary injunction regarding “right location, wrong

precinct” ballots, the Secretary of State issued “Form No. 12–D” to the Boards of Election in September 2012. Form No. 12–D instructs poll workers to “[c]omplete this form whenever  a  voter’s  name  does  not  appear  in  the  signature   poll book or poll list, the voter is in the wrong precinct of the correct multiple-precinct polling place and the voter insists on casting a provisional ballot in the wrong precinct.” Oddly and, perhaps, confusingly, however, “Step 3” instructs the poll worker to “[w]rite the name and   address   of   the   voter’s   correct   polling   place   below,   if   different from where you are now.” If these forms are only to be used when the voter arrives at the correct multiple-precinct polling location, “Step 3” is superfluous. As such, the Secretary of State has already produced a form which poll workers can use to satisfy the conditions of the injunction Plaintiffs seek here. In fact, the same form can be used for “right location, wrong precinct” voters and “wrong location, wrong precinct” voters. The only change needed would be to replace the phrase “the voter is in the wrong precinct of the correct multiple-precinct polling place” with “the voter is in the wrong precinct or incorrect polling place,” or words to that effect.
The State admitted at oral argument that the burden analysis of “wrong location, wrong precinct” disqualifications is *754 essentially the same as that of “right location, wrong precinct” disqualifications, but contended the timing of this request for an injunction jeopardizes the public interest in orderly elections in a way the previous request did not.
Although the Court has considered and is empathetic to Defendants’   concern   that   October   is   “too late to change election rules, as a matter of principle and practicality,” that consideration does not outweigh the burden of denying the right to vote to thousands of Ohioans based on pollworker error, which is state action. (Dkt. 87 at 6) In the digital age, the actual changes required of the State in expanding the existing preliminary injunction to include “wrong location, wrong precinct” provisional voters are minimal. It is also worth noting that this Court twice expedited the litigation on this Motion, once of its own   accord   and   then   again   on   Defendants’   motion,   in   order   to   facilitate   the   State’s   implementation   of   the   election laws. The burden of re-drafting election materials and re-training of poll workers, though not negligible, is minor and does not justify widespread voter disenfranchisement.
Since the proposed injunction would have practical effects on the conduct   of   the   election   in   Ohio’s  
6

Service Employees Intern. Union, Local 1 v. Husted, 906 F.Supp.2d 745 (2012)

precinct-based voting system, it is worth considering what those effects will be. In Sandusky the Sixth Circuit identified   five   advantages   of   Ohio’s   precinct   system,   known as “Sandusky factors:”
(1) it [the precinct system] caps the number of voters attempting to vote in the same place on election day;
(2) it allows each precinct ballot to list all of the votes a citizen may cast for all pertinent federal, state, and local elections, referenda, initiatives, and levies;
(3) it allows each precinct ballot to list only those votes a citizen may cast, making ballots less confusing;
(4) it makes it easier for election officials to monitor votes and prevent election fraud;
(5) and it generally puts polling places in closer proximity to voter residences.
Sandusky, 387 F.3d at 568–9. This Court explained, in granting   Plaintiffs’   previous   motion for an injunction regarding “right location, wrong precinct” ballots, that the State’s   showing   under   these   factors   did   not   outweigh   the   substantial burden on the right to vote. The same analysis applies here with one difference; the injunction Plaintiffs seek here would apply to provisional voters at the wrong location as well as the wrong precinct.
Defendants note that “Ohio caps the number of voters attempting to vote in the same place on Election Day.” (Dkt. 87 at 12) The Court recognizes there are many good reasons to do that, but, as explained above, the proposed injunction is not “a decision to allow voters to vote anywhere in the county,” which “would be unmanageable due to lines, staffing, and other resource issues.” (Dkt. 87 at 13) The State’s   assertion   to   the   contrary   is   specious.   Voters can only vote at their correct locations and in their correct precincts.4 A ballot in the wrong location would only be counted if the poll worker failed to: (1) inform the voter that a vote cast there would not be counted; and (2) direct the voter to her correct polling place. Furthermore, there is no evidence in the record of any voter knowingly attempting *755 to vote at a more conveniently located polling place, rather than her assigned location, whereas there is a great deal of evidence that poll workers have directed voters to the wrong polling place.

4

At oral argument Defendants raised the prospect of

interested parties “gaming the system” by gathering

van-loads of voters and taking them to the wrong

location in order to overwhelm poll workers required to redirect them. This unlikely hypothetical pales in comparison to the documented incidents of poll workers actively directing or passively allowing voters to cast ballots in the wrong location.
This   leads   to   the   State’s   second   misdirected   argument:   that “[w]ith a busy Election Day [it] would be nearly impossible for pollworkers to document every conversation   with   a   voter   about   that   voter’s   proper   location.” (Dkt. 87 at 13) The injunction would only require a pollworker to document a conversation with a voter who arrived at the wrong location if, in the words of Form No. 12–D, “the voter refused to travel to the correct precinct and insists on voting a wrong-precinct provisional ballot in this precinct.” For this to occur, a poll worker would have first directed the voter to the correct polling location and informed the voter that a ballot cast in that location and precinct would not be counted. This scenario is unlikely to occur. Logic dictates that the vast majority of voters, upon being told they are in the wrong location and their vote will not be counted, will either go to the correct polling place or choose not to vote. In either scenario, a poll worker need not fill-out the 12–D Form, or take any action to record the conversation.
[9] The Court has now, as it must, “weigh[ed] the burden on   voters   against   the   state’s asserted justifications and make the hard judgment that our adversary system demands.” Obama for America v. Husted, 697 F.3d 423 (6th Cir.2012). It is clear that, under the law of the Sixth Circuit,   the   State   of   Ohio’s   systemic   disqualification   of   “wrong location, wrong precinct ballots” cast owing to poll-worker error is a substantial burden on the right to vote. Although the State has legitimate interests in maintaining a precinct-based voting system, these interests do not actually conflict with the injunction Plaintiffs’   seek.   Nor   do   these   interests outweigh, under the Burdick/ Anderson test, the harm caused by disenfranchising thousands of voters whose “only error was relying on poll-worker instructions.” Hunter I, 635 F.3d at 243. The Plaintiffs have satisfied their burden to show a likelihood of success on the merits.
2. Remaining Preliminary Injunction Factors
[10] Given that in an election case the four preliminary injunction factors are “interrelated concerns” to “be
7

Service Employees Intern. Union, Local 1 v. Husted, 906 F.Supp.2d 745 (2012)

balanced together,” neither party argued the three remaining factors at this stage of the proceedings. Nevertheless, the Court considers all four factors and finds that when balancing all four, Plaintiffs have still satisfied their burden for the grant of an injunction. Defendants do not contest that denial of the right to vote constitutes irreparable harm. At the same time, for the same reasons stated by the Sixth Circuit in the NEOCH appeal granting this injunction harms neither the State, nor the public interest. It merely extends the injunction regarding “right location, wrong precinct” provisional ballots to “wrong location, wrong precinct” provisional ballots. Furthermore, as affirmed by the Sixth Circuit, the injunction which already issued from this Court is narrowly tailored to address the harm to Plaintiffs.
3. Conclusion and Appropriate Injunctive Relief
Plaintiffs have demonstrated they are likely to prevail on the argument that the disqualification of “wrong location, wrong precinct ballots” caused by poll-worker error is both a violation of equal protection and a denial of due process. Consideration of all four factors necessary to grant a preliminary injunction, including the public interest in orderly elections and the *756 irreparability of the   State’s   denial   of   the   right   to   vote,   demonstrates   the   balance weighs definitively in favor of granting the injunction   Plaintiffs   seek.   Therefore,   Plaintiffs’   Motion   for an Injunction with Respect to Wrong–Location Provisional Ballots is GRANTED.
The Court determines the following preliminary injunction   on   the   Board’s   enforcement   of   Ohio   law   to   be   the appropriate relief, least restrictive upon the State, adequate   to   ensure   the   protection   of   Plaintiffs’   constitutional rights in the November 6, 2012 election.
It is hereby ORDERED that, within five business days of this Order, Defendant Secretary of State shall issue a Directive  requiring  that  Ohio’s county boards of election shall not reject any provisional ballot cast by a lawfully-registered voter in the November 6, 2012 election for the following reason:
1. The voter cast his or her provisional ballot in the wrong polling place, unless the poll worker who processed  the  voter’s  provisional  ballot  has:
a)   determined   the   voter’s   correct   polling   place   and  

precinct and;
b) directed the voter to the correct polling place and precinct;
c) informed the voter that casting a provisional ballot in the wrong polling place would result in all votes on the ballot being rejected under Ohio law; and
d) the voter refused to travel to the correct polling place and insisted on voting the invalid ballot;
and the Board of Elections has verified that the polling place and precinct to which the poll worker directed the voter was the correct polling place and precinct. If the County Board cannot verify the poll worker directed the voter to the correct polling place and precinct, the votes cast on the provisional ballot must be counted in all races and for all issues for which the voter would have been eligible to vote if he or she had cast the ballot in the correct precinct.
IT IS SO ORDERED.
IV. CROSS MOTIONS TO MODIFY CONSENT DECREE
A. Law and Analysis
Following  the  Sixth  Circuit’s  remand  of  this  Court’s  grant   of the injunction sought by Plaintiffs with regard to the “deficient affirmation” ballots, Plaintiffs and Defendants each moved to modify the Consent Decree and opposed the motions of their counterparts. Since both motions seek to modify the Consent Decree to which each party voluntarily agreed, the same statement of law applies to both motions.
The Consent Decree applies only to the counting of provisional ballots cast by voters who identify themselves with the final four digits of their social security numbers (“SSN–4 voters”). The Sixth Circuit has now held that the section III(5)(b)(vi) of the Consent Decree, which orders that deficient affirmation ballots which are the result of poll-worker error be counted, constitutes “preferential treatment of SSN–4 provisional ballots.” Thus, the Sixth Circuit “join[ed] the parties and the district court in finding   that   the   consent   decree’s   different   treatment   of  
8

Service Employees Intern. Union, Local 1 v. Husted, 906 F.Supp.2d 745 (2012)

similarly situated provisional ballots likely violates equal protection.” NEOCH v. Husted, 696 F.3d 580, 598 (6th Cir.2012). Given that holding, the issue before this Court is not whether the differential treatment of “deficient affirmation” ballots under the Consent Decree is an equal protection violation, but rather the proper remedy for that violation. The Plaintiffs contend that this Court should expand the protection given to SSN–4 voters by Section III(5)(b)(vi) *757 and issue a statewide injunction directing the State to count all provisional ballots with deficient affirmations “caused by poll worker error,” regardless of the form of identification provided. Defendants, in contrast, request the Court excise that section of the Consent Decree such that the State is not required to count provisional ballots with deficient affirmations.
[11] Federal Rule of Civil Procedure 60(b)(5) allows the Court to “relieve a party ... from a final judgment” if “applying it prospectively is no longer equitable” or for “any other reason that justifies relief.” Usually, a movant seeking to modify a consent decree bears the burden to show the proposed modification is justified. NEOCH, 696 F.3d at 602–04 (citing Fed.R.Civ.P. Rule 60(b)(5)); Northridge Church v. Charter Township of Plymouth, 647 F.3d 606, 613–14 (6th Cir.2011). In the instant case, the Sixth Circuit has relieved both parties of their burdens in holding that the Consent Decree as currently drafted violates equal protection. On remand, the Sixth Circuit left no doubt that this Court must modify the Consent Decree. The Court now decides whether to grant Plaintiffs’  or  Defendants’  proposed  modification.
The   relief   Plaintiffs’   seek   by   moving   to   modify   the   Consent Decree, however, is precisely that which the Sixth Circuit explicitly denied them in the NEOCH decision. Based on the same arguments Plaintiffs make here, this Court previously granted the SEIU Plaintiffs an injunction which, in relevant part, stated:
Ohio’s   county   boards   of   elections   may not reject any provisional ballots cast by lawfully-registered voters in the November 2012 general election for the [ ] reason[ ] [that] [t]he provisional ballot envelope does not contain a voter signature ... and/or the provisional ballot envelope does not contain the   voter’s   full   printed   name   ...   and/or the voter did not sign and/or print  the  voter’s  name  in  the  correct  

place(s) on the ballot envelope ...

SEIU Local 1, 887 F.Supp.2d at 798, 2012 WL 3643064 at *30. The Sixth Circuit vacated that portion of the injunction, simultaneously holding that in the evidentiary record to date, “all of the identified deficiencies arise from voters’   failure to   follow   the   form’s   rather   simple   instructions,” and not poll-worker error. NEOCH, 696 F.3d at 599 (emphasis added). Plaintiffs are correct that the Sixth Circuit did not hold that deficient affirmations could never be the result of pollworker error. The Sixth Circuit did hold, however, that “the spotty record and Ohio   law   do   not   support   the   district   court’s   presumption   of poll-worker error, we find no likely constitutional violation.” Id. Since the Sixth Circuit has now held the instances of deficient affirmations supported by evidence are actually the result of voter error, not poll-worker error, it is not unconstitutional for the State to disqualify those ballots.   This   Court’s   power   to   issue   an   injunction   against   the State is predicated on the State denying constitutional rights to citizens. Here, the Sixth Circuit held that, on the record as it stands, there is no denial of constitutional rights when the State disqualifies a provisional ballot because   the   voter’s   affirmation   is   deficient.   Thus,   this   Court has no power to enjoin the State with regard to the deficient affirmation ballots.
Plaintiffs argued at the October 24, 2012 hearing that they only seek an injunction to order the counting of ballots with deficient affirmation due to “poll-worker error.” The problem for Plaintiffs is that they have adduced no evidence that deficient affirmations are ever the result of poll-worker error. The only proposed examples of poll-worker error resulting in a deficient affirmation in either the NEOCH *758 or SEIU case the Sixth Circuit explicitly held to be unsupported by evidence. Put another way, without something more in the way of evidence of poll-worker error, there is no ipso facto violation of equal protection or due process when the State disqualifies provisional ballots suffering from those defects.5

5

The Court   observes   that   the   Sixth   Circuit’s   holding   in  

the NEOCH appeal appears to conflict with its

statement in Hunter, approvingly quoted in another part

of the NEOCH appeal, that “[t]o disenfranchise citizens

whose only error was relying on poll-worker

instructions appears to us to be fundamentally unfair.”

While this Court recognizes the Sixth Circuit made that

statement in the context of poll workers directing, or

failing to direct, voters to the proper location and

precinct, it is equally applicable to the issue of deficient

affirmations. The State has created the instrumentalities

9

Service Employees Intern. Union, Local 1 v. Husted, 906 F.Supp.2d 745 (2012)

of voting, such as the provisional ballot. These forms have, at times, even confused these litigants and this Court, so they are certain to confuse some voters. It is unreasonable to believe most voters who produce ballots with deficient affirmations purposefully affirm their provisional ballots in a deficient manner. Citizens who take the time to vote are unlikely to act affirmatively in order to disqualify their vote. By analogy to the rule of drafting in contract law, the Court suggests ambiguities in the form should be construed against the drafter, here, the State, not the well-intentioned voter. When the State disqualifies a deficient affirmation ballot, it shifts the rule of drafting to burden the non-drafting party, the voter. That state action to deprive the franchise of a citizen attempting to cast a ballot in good faith also raises serious substantive due process concerns. It would seem a simple matter for a poll worker to glance over the provisional ballot to ensure the voter has signed and written in the correct places; that is what the Hunter logic suggests to this Court. That was not the logic adopted by the NEOCH panel, and thus, this Court follows the NEOCH panel in its departure from Hunter I in this case.
Furthermore, the prospective relief Plaintiffs seek here is an extraordinary remedy, and even if the request is couched as a modification of the Consent Decree, this Court cannot grant such broad relief without any evidence to support it. The Consent Decree ordered the State, in Section III(5)(b), to count provisional ballots if:
vi. The voter did not complete or properly complete and/or sign the provisional ballot application for reasons attributable to poll worker error; or
vii. The poll worker did not complete or properly complete and/or sign the provisional ballot application witness line and/or the provisional ballot affirmation form, except for reasons permitted by the governing statutes.
Critically, Section III(5)(b)(vii) remains in the Consent Decree to ensure no provisional ballot is disqualified when a poll worker fails to complete her designated portion of the envelope and the State does not dispute that. SEIU Dkt. 28 at 17. Directive 2012–01, which Secretary Husted issued on January 4, 2012, expressly instructed county boards of election that provisional ballots are not to be rejected if the poll worker fails to fill out his or her portion of the provisional ballot envelope. As to Section III(5)(b)(vi),  the  Sixth  Circuit’s  NEOCH decision renders it irrelevant.

B. Conclusion
[12] Both parties concur that the Consent Decree as it currently  reads  cannot  stand  in  light  of  the  Sixth  Circuit’s October 11, 2012 Decision. To treat deficient affirmation ballots differently for SSN–4 voters would deny equal protection to those provisional voters using alternative forms of identification. The sole issue is whether to excise the deficient affirmation clause from the Consent Decree or, in the alternative, to require the State to count all provisional ballots with deficient affirmations. This Court’s   power   to   issue   an   injunction   against   the   State   is   predicated on the State denying constitutional rights to citizens. *759 The Sixth Circuit held that on the record as it stands there is no denial of constitutional rights when the State disqualifies a provisional ballot because the voter’s  affirmation  is  deficient.  In  the proceedings in this Court, Plaintiffs have adduced no further evidence to the contrary. Thus, this Court has no power to enjoin the State with regard to the deficient affirmation ballots and the appropriate remedy is to excise Section III(5)(b)(vi) of the Consent Decree.6

6

It is worth reiterating that the Sixth Circuit did not hold

a deficient affirmation could never be the result of

pollworker error, nor does the Court find that here.

Indeed, there are numerous scenarios the Court can

imagine in which poll-worker error might result in a

deficient affirmation. For instance, a poll-worker might

mistakenly instruct a voter to sign in the wrong place,

or tell her it is not necessary to both sign and print her

name. At this stage of the litigation, however, there is

no evidence of such events ever having occurred. In the

absence of evidence, it is not appropriate to grant

prospective relief. If evidence comes to light in the

future, however, that pollworkers have caused deficient

affirmations, it would be appropriate for this Court to

revisit the issue.

The Court hereby GRANTS Defendants’   Motion   to   Modify the April 19, 2010 Consent Decree and DENIES Plaintiffs’ Motion to Modify the April 19, 2010 Consent Decree. As a result, Section III(5)(b)(vi) of the Consent Decree relating to “deficient affirmation” provisional ballots is, hereby, VACATED.
IT IS SO ORDERED.

10

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

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

:

:

:

Case No. 2:12-CV-562

:

:

:

:

JUDGE ALGENON L. MARBLEY

:

:

:

Magistrate Terence P. Kemp

:

:

:

THE NORTHEAST OHIO COALITION :

FOR THE HOMELESS, et al.,

:

:

Plaintiffs,

:

:

v.

:

:

JON HUSTED, in his official capacity as :

Secretary of the State of Ohio,

:

:

Defendant.

:

:

and

:

:

STATE OF OHIO

:

:

Intervenor-Defendant

:

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

OPINION AND ORDER

I. INTRODUCTION

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

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

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

1

NEOCH case”). Plaintiffs in the NEOCH case have filed an Emergency Motion for Clarification and for Modification of October 26, 2012 Order Regarding Scope of Section III(5)(b)(vii) of the Consent Decree. (NEOCH Dkt. # 349) Plaintiffs in the SEIU case filed a Motion for Preliminary Injunction which sought the same relief as the NEOCH Plaintiffs’ Motion, but on different legal grounds. (SEIU Dkt. # 97) Plaintiffs jointly submitted a Memorandum in Support of their motions. At oral argument, on November 7, 2012, the SEIU Plaintiffs withdrew their Motion for Preliminary Injunction. (SEIU Dkt. # 102) Thus, this Opinion and Order considers only NEOCH Plaintiffs’ motions. These motions have been fully briefed and are ripe for consideration.
II. BACKGROUND The interwoven factual and procedural histories of these motions have become complicated owing to the many stages of this litigation both in this Court and the Sixth Circuit. The accelerated timeline of the motions resulting from the date of the November 6, 2012 Election and the November 17, 2012 start of provisional ballot counting has increased the complexity. It is appropriate, therefore, to review briefly the origins and purposes of the Consent Decree which is the subject of these motions. NEOCH Plaintiffs brought the suit which resulted in the Consent Decree in 2006. (NEOCH Dkt. #2) They sought to prevent Ohio’s then-new voter identification laws from disenfranchising impoverished Ohioans who could not afford to purchase any of the required forms of identification. Plaintiffs alleged that the requirement essentially levied an unlawful poll tax. In order to prevent disenfranchisement of the impoverished and to avoid further costly litigation, parties voluntarily entered into a negotiated settlement, memorialized as the Consent Decree. The Consent Decree went into effect on April 19, 2010 as an Order of this Court.
2

(NEOCH Dkt. #210) The Decree only applies to provisional voters who identify themselves using the last four digits of their social security numbers, “SSN-4 voters.” It is scheduled to remain in effect until June 30, 2013, though parties may move to extend that date.
Since the Consent Decree was entered, the litigation has gone through numerous stages, in this Court and in the Sixth Circuit. On October 26, 2012, the Court denied NEOCH Plaintiffs’ previous Motion to Modify the Consent Decree. (NEOCH Dkt. #334) Chiefly, Plaintiffs sought to expand the scope of the Consent Decree to all provisional ballot voters to prevent a potential violation of Equal Protection under Bush v. Gore, 531 U.S. 98 (2000). Plaintiffs requested the Court order the counting of provisional ballots with deficient affirmations resulting from pollworker error. One issue in contention was the definition of “poll-worker error.” This Court found the Sixth Circuit’s Decision of October 11, 2012 held that the voter’s failure to print her name or sign the provisional ballot affirmation was not the result of poll-worker error.1 NEOCH v. Husted, ___ F.3d ___, 2012 WL 4829033 (6th Cir. October 11, 2012).
Ohio law, however, requires other information on the provisional ballot affirmation as well, including the form of identification used by the provisional voter, which is required to be recorded by a poll-worker. Ohio Revised Code §3505.181(B)(6). The Sixth Circuit has held that when a ballot deficiency is “solely” the result of poll-worker error, the ballot may not be rejected; otherwise’ there would be a violation of the Fourteenth Amendment. SEIU v. Husted, ___ F.3d ___, 2012 WL 5352484 (6th Cir. October 31, 2012) at *2. In denying the NEOCH Plaintiffs’ Motion to Modify the Consent Decree, this Court relied on the Sixth Circuit’s holding, Section III(5)(b)(vii) of the Consent Decree, O.R.C. §3505.181(B)(6), and the Secretary’s representations to this Court, all of which confirmed the Court’s understanding that the Secretary
1 The Sixth Circuit held that the evidentiary record at that stage of the proceeding did not substantiate poll-worker error is the cause of a voter’s failure to print her name or write her signature. If parties adduce further evidence on that matter in the future, it may be appropriate to reconsider.
3

would not reject a provisional ballot because a poll worker had failed in her duty to record information.2
Following the issuance of this Court’s Order on October 26, 2012, NEOCH Plaintiffs
filed an Emergency Motion for Clarification, on November 1, 2012. (NEOCH Dkt. #346) They
sought clarification from this Court that a provisional ballot could not be rejected “because
certain form-of-identification information that poll workers are statutorily required to provide is
missing or incorrect.” (emphasis in original). The Court notes that Plaintiffs attempted to
contact the Secretary multiple times to hear his interpretation of this issue before filing the
motion. The Secretary never responded to Plaintiffs’ inquiries until filing a response with the
Court. (NEOCH Dkt. #346, Exh. 1, 2)
The first notice that Plaintiffs or this Court received that the Secretary intended to reject
provisional ballots with “missing or incorrect” identification information arrived around 7:00
p.m. on Friday, November 2, 2012, just four days prior to the November 6, 2012 Election. At
that time, the Secretary issued Directive 2012-54, which stated, in relevant part, “[i]f the voter
did not provide identification on the provisional ballot affirmation . . . the Board must reject the
provisional ballot.” (emphasis in the original). The Secretary, by admission of counsel,
engaged in no fact-finding which suggested such a change would improve the integrity of the
voting system. At oral argument, the Secretary was unable to provide any explanation for the
change, nor provide any specific account of the process by which it occurred. It is significant
2 The Secretary represented to the Court, through counsel that, “[t]he question is what is left of the concept of poll worker error in the context of defective ballot affirmations. [Plaintiffs’ counsel] suggested to [the Court], for example, that there might still be poll worker error because there is an obligation to record on the form the mode of identification used. And if that’s missing, that’s a defect in the ballot. But that defect is not covered by the provision we’re talking about, because as they say, the obligation to write down the identifying information is imposed upon the poll worker, not the voter. And in Section 7 [of the Consent Decree], it says that we won’t invalidate ballots based upon the poll worker’s failure to write something down.” (Draft Transcript, October 24, 2012 Hearing, p. 47 at ll. 5-14).
4

that the Secretary has recently argued both in this Court and the Sixth Circuit that changing election rules in the October prior to an election is not practically feasible and is likely to result in confusion.
Early on the following Monday, November 5, 2012, NEOCH Plaintiffs timely filed the instant Emergency Motion for Clarification and Modification of Consent Decree. (NEOCH Dkt. #349) In the same Emergency Motion, SEIU Plaintiffs moved for a preliminary injunction. Both NEOCH and SEIU Plaintiffs sought the same relief: an extension of Section III(5)(b)(vii) of the Consent Decree to all provisional voters and an order that the Secretary not reject ballots because the poll-worker had failed in her duty to complete the voter’s identification information on the provisional ballot affirmation. At that time, Plaintiffs had the understanding that provisional ballots with such errors would be counted if they came under the Consent Decree (SSN-4 ballots), but not if they were other provisional ballots. Such a result, Plaintiffs correctly contended, would constitute a Bush v. Gore violation of Equal Protection, per the Sixth Circuit’s Decision of October 11, 2012. At the hearing on November 7, 2012, however, the Secretary clarified that he planned to reject all ballots with missing or improperly completed identification information, including SSN-4 ballots covered by the Consent Decree. The Secretary, thus, saw no violation of Equal Protection. This Court must now consider not only the Plaintiffs’ briefed motions, but also whether Directive 2012-54 and its application to SSN-4 provisional ballots violates the Consent Decree and, if so, determine the proper remedy.
III. LAW AND ANALYSIS As this Motion requires the Court to construe the Consent Decree, it is appropriately before this Court because “[i]t is only sensible to give the court that wrote the consent judgment greater deference when it is parsing its own work.” Sault Ste. Marie Tribe of Chippewa Indians
5

v. Engler, 146 F.3d 367, 371 (6th Cir. 1998). The Sixth Circuit has also held that “[f]ew persons
are in a better position to understand the meaning of a consent decree than the district judge who
oversaw and approved it.” Brown v. Neeb, 644 F.3d 551, 558 n. 12 (6th Cir. 1981).
A. Provisional Ballot Affirmations under the Consent Decree
Upon entering the Consent Decree, the parties agreed, and the Court approved and
ordered that “[SSN-4] voters will not be deprived of their fundamental right to vote because of
failures by poll workers to follow Ohio law.” To that end, the Court ordered, inter alia, the
following “general injunctive relief”:
Boards of Elections must count the provisional ballot cast by a voter using only the last four digits of his or her social security number as identification if . . . [t]he individual’s name and signature appear in the correct place on the provisional ballot affirmation form, unless the voter declined to execute the affirmation and the poll workers complied with their statutory duties under R.C. 3505.182 and R.C. 3505.181(B)(6) when a voter declines to execute the affirmation . . .
Boards of Elections may not reject a provisional ballot [because] . . . vii. The poll worker did not complete or properly complete and/or sign the provisional ballot application witness line and/or the provisional ballot affirmation form, except for reasons permitted by the governing statutes.
(NEOCH Dkt. #210) The significance of this excerpt with regard to Directive 2012-54 is two-
fold. First, it orders that votes not be rejected because a poll worker failed to complete properly
her sections of the provisional ballot affirmation as defined under Ohio law. Second, the excerpt
explicitly incorporates §§ 3505.181(B)(6) and 3505.182 of the Ohio Revised Code, which define
the poll worker’s duties, into the Consent Decree. Under O.R.C. § 3505.181(B)(6), those duties
include:
[A]t the time that an individual casts a provisional ballot . . . the appropriate local election official shall record the type of identification provided, the social security number information, the fact that the affirmation was executed, or the fact that the individual declined to execute such an affirmation and . . . [i]f the individual declines to execute the affirmation, the appropriate local election official shall
6

record the individual’s name and include that information with the transmission of the ballot . . . (emphasis added). This passage unambiguously tasks poll workers with the duty of recording the type of identification provisional voters provide. Although the Secretary accurately indicates that § 3505.182 also contemplates an affirmation which could provide a space for the provisional voter to fill-in her identification information, the draft of the provisional ballot affirmation in that statute is just that, a draft. Nowhere does § 3505.182 relieve the poll worker of her duty, explicitly imposed by § 3505.181(B)(6), to record the provisional voter’s form of identification. Nor does § 3505.182 indicate whether the poll worker or voter should complete the identification section of the draft affirmation. At oral argument, the Secretary could point to no statute or other authority which relieved, or purported to relieve, poll workers of their duty to record the type of identification presented by a provisional voter. That duty, though imposed by Ohio law, was incorporated into the Consent Decree by Section III(5)(a)(4). (NEOCH Dkt. #210) While this Court usually does not enjoin the acts of state officials to comply with state law, the Court’s power to enforce the Consent Decree is undisputed. Thus, to the extent that the Secretary’s violations of state law also violate or conflict with the Consent Decree, this Court may enjoin such actions. See NEOCH, 2012 WL 4829033 at *19; cf. Sault Ste. Marie Tribe of Chippewa Indians, 146 F.3d at 371 (6th Cir. 1998), Brown, 644 F.3d at 558 n. 12 (6th Cir. 1981).
B. Directive 2012-54 Violates the Consent Decree When Plaintiffs initially filed this Motion, they reasonably believed the Secretary intended the Directive to affect only provisional ballots not covered by the Consent Decree. (NEOCH Dkt. #346) At oral argument, however, the Secretary made clear that he intended to reject provisional ballots with the defects at issue regardless of whether they fell under the
7

Consent Decree.3 Now, having established this Court’s jurisdiction to enjoin violations of the Consent Decree, the question is whether Directive 2012-54 violates the Decree, as Plaintiffs allege.
Plaintiffs claim, specifically, that the Secretary’s Directive 2012-54 contravenes O.R.C. § 3505.181(B)(6), incorporated into the Consent Decree, by ordering election officials to reject provisional ballots with some deficiency in recording the type of identification used by the voter. The violation is rooted in the Secretary’s drafting of the Provisional Ballot Affirmation, also known as “Form 12-B.” “Step 2” of Form 12-B instructs the provisional voter to either (a) write the last four digits of her Social Security number; or (b) her full eight-digit Ohio driver’s license number; or (c) show another form of identification from the included list and check the box indicating the form of identification produced. The Secretary contends Step 2 is a minimal burden on the voter and actually reduces the risk of error by eliminating the chain of transmitting the identification information from voter to poll worker, and then poll worker to Form 12-B. Although the Secretary adduces no evidence to support this contention, the absence of facts is irrelevant, as the Court need not engage in a factual inquiry, nor perform a Constitutional analysis. O.R.C. § 3505.181(B)(6) relieves the voter of the responsibility to record her identification information as a matter of law. In NEOCH, the Sixth Circuit validated this legal interpretation, stating that Ohio law “require[s] election officials to ‘record the type of identification provided, the social security number information, the fact that the affirmation was executed, or the fact that the individual declined to execute such an affirmation and include that information with the transmission of the ballot.’” NEOCH, 2012 WL 4829033 at *10-13, quoting O.R.C. § 3505.181(B)(6).
3 It is important to reiterate that even if the Secretary did not intend to reject the provisional ballots covered by the Consent Decree, that would not resolve the issue. In that case, the Secretary would simply have created the same violation of Equal Protection that occurs here in a different way.
8

Accordingly, in shifting that duty to the voter, Step 2 of Form 12-B imposes an impermissible burden in violation of O.R.C. § 3505.181(B)(6) and, therefore, the Consent Decree. By admission of counsel, the Secretary engaged in no fact-finding to determine that such a change would increase the integrity of the voting system. The General Assembly made the policy judgment to place the duty to record the identification of a provisional voter with a trained election official. The Secretary may not second guess that decision. If the Secretary could arbitrarily shift any duties of an election official to an individual voter, the Secretary could ensure no error would ever be the fault of a poll worker simply by reassigning all of the poll worker’s duties to the voter. This result is not contemplated by Ohio law or permitted by the Constitution.
Additionally, the Secretary’s argument that Plaintiffs’ Motion is not timely is incorrect. The poor drafting of Form 12-B which, by design or accident, purports to shift the poll worker’s statutory duty to record the form of identification to the provisional voter, did not provide occasion for the Plaintiffs to seek injunctive relief until the Secretary issued Directive 2012-54, at 7:00 p.m. on November 2. Until that time, Plaintiffs did not have reason to believe a provisional ballot would be rejected if the poll worker did not record information required by § 3505.181(B)(6). Plaintiffs correctly understood the law to place the duty to record that information on the poll worker (per O.R.C. § 3505.181(B)(6) and its incorporation in the Consent Decree) and to forbid the rejection of a provisional ballot due to poll-worker error. The Sixth Circuit’s NEOCH decision of October 11, 2012 held unconstitutional “the disenfranchisement of voters who arrive at the correct polling place (and are otherwise eligible to vote) solely as a consequence of poll-worker error.” SEIU v. Husted, ___ F.3d ___, 2012 WL 5352484 at *2, citing NEOCH, 2012 WL 4829033 at *10-13. Since the Ohio law places the
9

duty to record the provisional voter’s form of identification with the poll-worker, if such information is absent, that indicates that the poll worker failed to perform her duty. To reject the ballot for that reason would violate the Fourteenth Amendment’s guarantee of Due Process. Until November 2 at 7:00 p.m., Plaintiffs did not have reason to believe such a result was within the realm of possibility. Thus, this Motion is timely made.
In summary, Directive 2012-54 violates the Consent Decree and the law of Ohio. Plaintiffs timely moved for clarification to declare Directive 2012-54 a violation of the Consent Decree. Plaintiffs’ Motion is, hereby, GRANTED. The Court ORDERS that provisional ballots of SSN-4 voters be counted if the voter has properly completed “Step 1” and “Step 3” of the Provisional Ballot Affirmation (Form 12-B).
C. Appropriate Remedy for Violation of Consent Decree Since Directive 2012-54 violates the Consent Decree and the Court must enjoin Directive 2012-54, as it applies to SSN-4 voters, the Secretary’s application of the Directive to non-SSN-4 voters creates a Bush v. Gore violation of Equal Protection. Under the Sixth Circuit’s NEOCH Decision of October 11, 2012, that result cannot stand.4 The Court must either vacate Section III(5)(b)(vii) of the Consent Decree to allow Directive 2012-54 to operate, or extend the protections of the Consent Decree to all provisional voters for the purposes of the November 6, 2012 Election. Therefore, the Court also ORDERS that an incomplete or improperly completed “Step 2” shall not cause any provisional ballot to be rejected, unless: (1) a poll-worker has recorded on the provisional ballot affirmation that the voter is required to return to the county board of elections with proper identification; (2) a poll worker has recorded what identification
4 This is not a situation where the Court’s Order has created a violation of Equal Protection. The Secretary attempted to do something forbidden by the Consent Decree voluntarily entered into by the Secretary. By the terms of the Consent Decree, this Court must enjoin the violation. Thus, it is the Secretary’s eleventh hour attempt to reject provisional ballots with “Step 2” deficiencies that violates Equal Protection, not the Order of this Court.
10

information the voter must bring; and (3) the voter did not return with the necessary identification within ten days of the election.
The Secretary contends that if the information sought by “Step 2” is not completed, there is no way to determine whether the provisional voter was an SSN-4 voter or a voter who provided another type of identification, or even a voter who did not provide proper identification when casting the provisional ballot. That is not accurate. Under O.R.C. § 3505.181 (B)(7), if a provisional voter does not arrive at the polling place with an acceptable form of identification an “election official shall indicate, on the provisional ballot verification statement required under section 3505.182 of the Revised Code” that the voter is “required to provide additional information” to the county’s board of elections “to determine the eligibility” of the voter. If a poll-worker has properly recorded that information on the provisional ballot and the voter does not return with the proper identification within ten days of the election, that provisional ballot will be rejected.
The Secretary’s proposed relief, vacating Section III(5)(b)(vii), is unacceptable for numerous reasons. First, having created the equal protection issue by issuing a directive that violates both state law and a voluntarily entered Consent Decree, the Secretary cannot benefit from his illegal act by using it to escape his obligations under the Consent Decree. Second, if the Secretary has drafted Form 12-B in such a way that it both illegally shifts the burden of recording identification information from election officials to voters and does not allow election officials to distinguish poll-worker error from voter failure to provide identification, that is the Secretary’s mistake. There were myriad options available to the Secretary to create a form which would have made such distinctions clear, but he chose not to pursue those options. It is an established rule of contract law that ambiguities are construed against the drafter of the
11

document. Since the Secretary drafted Form 12-B, if the form is inadequate, the Secretary must
bear the consequences of that inadequacy. The voter acting in good faith cannot suffer
disenfranchisement as a result of the Secretary’s drafting errors.
D. Judicial Estoppel Bars the Secretary from Advocating His Proposed Remedy While the Plaintiffs’ requested remedy is proper on substantive grounds, the Secretary is
also judicially estopped from seeking his proposed remedy because he relies on a position
contrary to that which he previously took before this Court and upon which this Court has relied.
Judicial estoppel is an equitable doctrine which “generally prevents a party from prevailing in
one phase of a case on an argument and then relying on a contradictory argument to prevail in
another phase.” New Hampshire v. Maine, 532 U.S. 742, 749, quoting Pegram v. Herdrich, 530
U.S. 211, 227, n. 8 (2000). The doctrine dictates that, “where a party assumes a certain position
in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply
because his interest have changed, assume a contrary position, especially if it be to the prejudice
of the party who has acquiesced in the position formerly taken by him.” Id. at 749. In this
Court’s previous decision, the Court denied Plaintiffs’ request to expand the protections of
Section III(5)(b)(vi) and (vii) to all provisional voters. In denying that request, the Court relied
primarily on the Secretary’s assurances that provisional ballots would not be rejected if a poll
worker failed to comply with her statutory duties:
[T]he question is what is left of the concept of poll worker error in the context of defective ballot affirmations. [Plaintiffs’ counsel] suggested to [the Court], for example, that there might still be poll worker error because there is an obligation to record on the form the mode of identification used. And if that’s missing, that’s a defect in the ballot. But that defect is not covered by the provision we’re talking about, because as they say, the obligation to write down the identifying information is imposed upon the poll worker, not the voter. And in Section 7 [of the Consent Decree], it says that we won’t invalidate ballots based upon the poll worker’s failure to write something down.
12

(Draft Transcript, October 24, 2012 Hearing, p. 47 at ll. 5-14). At that time, the Court also understood O.R.C. §3505.181(B)(6) to protect other provisional voters not covered by the Consent Decree from having their ballots rejected when poll workers fail to record the identifying information. In reliance on the Secretary’s verbal assurances to this Court and Ohio law, this Court denied Plaintiffs’ previous request to modify and expand the Consent Decree, stating that, “Critically, Section III(5)(b)(vii) remains in the Consent Decree to ensure no provisional ballot is disqualified when a poll worker fails to complete her designated portion of the envelope and the State does not dispute that.” SEIU Local 1 v. Husted, 2012 WL 5334080 at *12 (S.D. Ohio October 26, 2012). While the Secretary argues that judicial estoppel does not apply where a litigant’s assertions are “open to interpretation,” the relevant statements are not open to interpretation. Counsel for the Secretary unambiguously assured this Court that the Secretary understood the recording of “identifying information” to be a duty “imposed upon the poll worker” and that the failure to do so would not “invalidate ballots.” The Court relied on this statement to the Plaintiffs’ detriment. Nine days after making that representation to the Court, the Secretary ordered that no provisional ballots be counted if the identification information was improperly recorded, without ingaging in fact-finding to support the change. This is an archetypal situation in which judicial estoppel applies.
The Court also notes, with grave misgivings, that the Secretary changed an election rule on a Friday evening for an election scheduled for the following Tuesday, after repeatedly asserting, to both this Court and the Sixth Circuit, that he could not comply with injunctive relief ordered by this Court because he lacked sufficient time prior to the election. The surreptitious manner in which the Secretary went about implementing this last minute change to the election rules casts serious doubt on his protestations of good faith. Thus, in addition to the Plaintiffs’
13

successful legal arguments, the equitable doctrine of judicial estoppel is grounds for denying the relief sought by the Secretary and granting that sought by Plaintiffs.
E. Directive 2012-54 Violates Fourteenth Amendment Substantive Due Process Although this Court’s decision to grant Plaintiffs the injunctive relief they seek rests on the Secretary’s violation of the Consent Decree and Equal Protection violation thereby created, the Court reaches the same conclusion under the Fourteenth Amendment’s guarantee of due process. The right to vote is a federal right guaranteed to all citizens by the Fourteenth Amendment. It may not be withheld without due process. While, generally, a federal court may not enjoin a state official from violating state law, there are exceptions. Ex parte Young, 209 U.S. 123 (1908). The Fifth Circuit has held that, “[i]t is fundamentally unfair and constitutionally impermissible [under the substantive prong of the due process clause] for public officials to disenfranchise voters in violation of state law.” Duncan v. Poythress, 657 F.2d 691, 704 (5th Cir. 1981), cert. denied, 459 U.S. 1012 (1982). In Duncan, the Fifth Circuit found the state’s failure to hold a special election as required by state law presented one of “those rare, but serious, violations of state election laws [which] undermine the basic fairness and integrity of the democratic system.” Duncan, 657 F.2d at 699. Here the Secretary’s eleventh hour Directive, which disenfranchises an unknown but potentially large number of Ohio voters and violates state law, is one of the “rare, but serious” violations of state election law identified by the Duncan court. Directive 2012-54 ordered elections officials to “reject[]” any provisional ballot without the voter’s properly completed identification information. Under O.R.C. § 3505.181(B)(6), however, the poll worker has the duty to record the identification information. The poll worker administers the election on behalf of the state, so the poll worker’s failure to fulfill her statutory duty is state action that, under Directive 2012-54,
14

would lead to an individual losing her right to vote without due process. Just as in Duncan, the Secretary’s action here is a flagrant violation of a state election law, O.R.C. § 3505.181(B)(6), and it has the result of disenfranchising voters, by rejecting provisional ballots cast in good faith. This violation of state law rises to an abuse of federal due process and necessitates the granting of injunctive relief by a federal court.
While the Sixth Circuit has conjectured that asking a provisional voter to record her identification information may not constitute an undue burden under the Burdick/Anderson test, it also held that the duty to record that information, under Ohio law, is the poll worker’s. NEOCH, 2012 WL 4829033 at *16 (“Ohio law does not task poll-workers with quality control of ballot affirmations. Rather, the Ohio provisions cited by the district court . . . require elections officials ‘to record the type of identification provided . . .”). Ohio voters reasonably expect that the Secretary of Ohio will abide by the General Assembly’s laws in administering a federal election. For an executive official of the state to flaunt state law in arbitrarily reassigning a poll worker’s statutory duty to a voter, with the result being disenfranchisement of the voter, is “fundamentally unfair and constitutionally impermissible.” Duncan, 657 F.2d at 704. Thus, this Court finds Directive 2012-54 violates substantive due process as guaranteed by the Fourteenth Amendment. The due process violation provides an alternative ground for providing the injunctive relief sought by Plaintiffs.
IV. CONCLUSION For the foregoing reasons, NEOCH Plaintiffs’ Motion for Clarification of the Consent Decree is, hereby, GRANTED. The Court declares that Directive 2012-54 violates the Consent Decree and ORDERS that the Secretary not reject any provisional ballots cast by SSN-4 voters
15

with an improperly completed “Step 2” (requesting voter’s identification information) on the Provisional Ballot Affirmation.
SEIU Local 1 Plaintiffs have WITHDRAWN their Motion for Preliminary Injunction. The Court, therefore, has no occasion to consider that Motion.
Since the Sixth Circuit’s NEOCH Decision of October 11, 2012 held that treating SSN-4 provisional ballots differently from other provisional ballots violates Equal Protection, this Court’s relief must be implemented in a uniform fashion for all provisional ballots. Thus, for the foregoing reasons, NEOCH Plaintiffs’ Motion for Modification of the Consent Decree is also GRANTED.
The Court ORDERS that the Secretary not reject any provisional ballots cast by nonSSN-4 voters with an improperly completed “Step 2” on the Provisional Ballot Affirmation. This latter relief, pertaining to the non-SSN-4 voters applies only to provisional ballots cast in the November 6, 2012 Election. The only circumstances in which the Secretary may reject a provisional ballot for a deficiency in “Step 2” of Form 12-B is if: (1) a poll-worker has recorded on the provisional ballot affirmation that the voter is required to return to the county board of elections with proper identification; (2) a poll worker has recorded what identification information the voter must bring; and (3) the voter did not return with the necessary identification within ten days of the election.
The Court ORDERS the Secretary to issue a Directive consistent with this Order by no later than November 16, 2012 at 12:00 p.m. Prior to issuing the Directive, the Secretary shall provide the relevant proposed language for the Directive to Plaintiffs’ counsel by no later than 12:00 p.m. on November 14, 2012. If the parties cannot agree to the proposed language after
16

conferral, they shall submit separate proposals to the Court by no later than 12:00 p.m. on

November 15, 2012.

IT IS SO ORDERED.

Algenon

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

Dated: November 13, 2012

17

 
 Case: 2:06-cv-00896-ALM-TPK Doc #: 358 Filed: 11/13/12 Page: 1 of 3 PAGEID #: 12885

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

The Northeast Ohio

:

Coalition for the Homeless, et al.,

:

:

Plaintiffs-Appellees,

: Case No. 2:06-cv-896

:

v.

: Judge Algenon Marbley

:

Jon Husted, et al.,

:

:

Defendants-Appellants.

:

______________________________________________________________________________

DEFENDANTS’ NOTICE OF APPEAL OF NOVEMBER 13, 2012 ORDER [DOC. 357] ______________________________________________________________________________

Notice is hereby given that Defendant Secretary of State Jon Husted and Defendant the

State of Ohio hereby appeal to the United States Court of Appeals for the Sixth Circuit from the

Order Granting the Plaintiffs’ Motion for Clarification of the NEOCH Consent Decree on

November 13, 2012 and ordering the Secretary to issue a directive ordering the County Boards of

Elections to count provisional ballots with incomplete ballot envelopes.

Respectfully submitted,
MICHAEL DEWINE OHIO ATTORNEY GENERAL
/s/ Aaron D. Epstein Aaron D. Epstein (0063286), Counsel of Record Erin Butcher-Lyden (0087278) Assistant Attorneys General Constitutional Offices Section 30 E. Broad Street, 16th Floor Columbus, Ohio 43215 614-466-2872; 614-728-7592 (fax)

Case: 2:06-cv-00896-ALM-TPK Doc #: 358 Filed: 11/13/12 Page: 2 of 3 PAGEID #: 12886 aaron.epstein@ohioattorneygeneral.gov Counsel for Defendant Jon Husted Ohio Secretary of State /s/ Richard N. Coglianese RICHARD N. COGLIANESE (0066830) Assistant Attorney General Constitutional Offices Section 30 E. Broad Street, 16th Floor Columbus, Ohio 43215 614-466-2872; 614-728-7592 (fax) richard.coglianese@ohioattorneygeneral.gov Counsel for State of Ohio
2

Case: 2:06-cv-00896-ALM-TPK Doc #: 358 Filed: 11/13/12 Page: 3 of 3 PAGEID #: 12887 CERTIFICATE OF SERVICE
I hereby certify that the foregoing was filed electronically on this 13th day of November, 2012. Notice of this filing will be sent by operation of the Court’s electronic filing system to all parties indicated on the electronic filing receipt.
/s/ Aaron D. Epstein Aaron D. Epstein Assistant Attorney General
3

 
 Northeast Ohio Coalition for the Homeless v. Husted, Not Reported in F.Supp.2d (2012)

2012 WL 1658896 Only the Westlaw citation is currently available.
United States District Court, S.D. Ohio,
Eastern Division.
The NORTHEAST OHIO COALITION FOR THE HOMELESS, et al., Plaintiffs, v.
Jon HUSTED, in his official capacity as Secretary of the State of Ohio, Defendant.
No. 2:06–CV–896. | May 11, 2012.
Attorneys and Law Firms
Caroline Gentry, Andrew J. Gottman, Daniel B. Miller, Porter Wright Morris & Arthur LLP, Lindsay M. Sestile, Assistant Attorney General, Education Section, H. Ritchey Hollenbaugh, Columbus, OH, Jennifer Nicole Fuller, Paul Gerard Hallinan, Dayton, OH, for Plaintiffs.
Richard Nicholas Coglianese, Constitutional Offices Section, Aaron D. Epstein, Damian W. Sikora, Erick D. Gale, Michael Joseph Schuler, Pearl Chin, Ohio Attorney General‘s Office Constitutional Offices Section, Patrick J. Piccininni, Ohio Department of Transportation, Sharon A. Jennings, Columbus, OH, Mary Lynne Birck, Prosecuting Attorney’s Office, Batavia, OH, for Defendant.
Opinion
OPINION AND ORDER
ALGENON L. MARBLEY, District Judge.
I. INTRODUCTION
*1 This matter comes before the Court on Plaintiffs’ The Northeast Ohio Coalition for the Homeless (“NEOCH”), Service Employees International Union (“SEIU”) and the Ohio Democratic Party (“ODP”) Urgent Motion to Enjoin State–Court Proceedings and for an Order to Show Cause Why Relators Thomas Niehaus and Louis Blessing, Jr. Should Not Be Held in Contempt. (Dkt.246.) Plaintiffs’

Motion seeks immediate injunctive relief, in the form of an Order from this Court enjoining Ohio Senate President Thomas E. Niehaus and Ohio House of Representatives Speaker Pro Tempore Louis W. Blessing, Jr. (jointly, “Relators”) and their counsel from further prosecuting their state court action filed on behalf of Intervenor–Defendant State of Ohio in State ex rel. Niehaus v. Husted, Ohio S.Ct. Case No. 12–0639 (the “Mandamus Action”). For the reasons stated herein, Plaintiffs Motion for the Injunction is GRANTED.
II. BACKGROUND
A. The Settlement and Consent Decree
The underlying facts of this case are memorialized in the prior decisions of this Court and the Sixth Circuit. In 2006, the Ohio General Assembly (or “General Assembly”) amended Ohio’s Election Code to require that voters provide one of several types of identification in order to cast a regular ballot in state and federal elections held in Ohio (“Voter ID Law”). Plaintiffs filed this action under 42 U.S.C. § 1983 in response, against then Ohio Secretary of State J. Kenneth Blackwell challenging the constitutionality of several provisions of the Voter ID Law. The State of Ohio was subsequently permitted to intervene as a defendant “both in appeal ... and in the ongoing district court proceedings,” on behalf of the people of Ohio and the General Assembly. NEOCH v. Blackwell, 467 F.3d 999, 1002, 1008 (6th Cir.2006) (granting the State of Ohio leave “to intervene to represent the interests of the people of Ohio and the General Assembly in defending the constitutionality of the [Voter ID Law]”).
On October 26, 2006 Plaintiffs were granted a temporary restraining order by this Court, the majority of which was stayed by a subsequent order of the Sixth Circuit. That litigation resulted in this Court’s entry of a Consent Order negotiated by the parties that applied to the 2006 election. Following the 2006 election, Plaintiffs believed that the Ohio Board of Elections was improperly counting provisional ballots. Consequently, the parties negotiated an Agreed Enforcement Order, which the Court entered on November 15, 2007. This case erupted into activity again during the Fall 2008 election season, and Plaintiffs
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Northeast Ohio Coalition for the Homeless v. Husted, Not Reported in F.Supp.2d (2012)

filed a motion for a preliminary injunction. As a result of the parties negotiations regarding the preliminary injunction motion, the Court entered two more orders setting forth procedures that would be used in counting and processing provisional ballots.
Perhaps to the surprise of no one, the parties continued to dispute both substantive issues of compliance with the Court’s orders, as well as attorneys’ fees. In late 2009, the parties began negotiations to globally settle this litigation, which continued through early 2010. These negotiations, in which the State of Ohio was represented by Susan Ashbrook, (Dkt.219–2, ¶ 6), ultimately resulted in the April 19, 20120 Consent Decree (“Consent Decree”), which was entered by the Court upon the agreement of the parties. The parties agreed to “waive a hearing and findings of fact and conclusions of law on all issues,” and further agreed to the entry of the Consent Decree “as final and binding among and between themselves as to the issues raised in Plaintiffs’ Complaint and Supplemental Complaint, and the matters resolved in this Decree.” (Dkt.210. p. 2)
*2 The Consent Decree lists the parties bound to its terms, which are: Plaintiffs Northeast Ohio Coalition for the Homeless (“NEOCH”), the Columbus Coalition for the Homeless (“CCH”), Kyle Wangler (“the Individual Plaintiff”), and Service Employees International Union, Local 1199 (“SEIU”), Defendant Secretary of State and Intervenor–Defendant State of Ohio (collectively therein, “Defendants”). (Dkt.210, p. 1.) In addition, the Consent Decree specifically provided that “[t]his Order shall be binding upon the Defendants and their employees, agents and representatives.” (Dkt.210, ¶ 2.)
The Consent Decree’s terms include detailed orders of injunctive relief, specifically requiring the Secretary to issue directives instructing Ohio’s county Boards of Elections to adhere to rules regarding casting and counting provisional ballots for persons without identification other than a social security number. Moreover, the Secretary is required, before every primary and general election, to remind the Boards of Elections that they must comply with the injunctive relief as stated in the Consent Decree. The Consent Decree provides for its continuing validity through June 30, 2013, and the parties agreed to “the continuing validity of this Decree if it or its terms are challenged in any other court.” (Dkt.210, p. 2.).

B. The Relators’ Original Action for Mandamus in the Supreme Court of Ohio
On April 16, 2012, Relators filed their original Mandamus Action in the Supreme Court of Ohio, seeking “to compel the Secretary of State to rescind directives issued pursuant to a consent decree,” referring to the Consent Decree. (Dkt. 246–1, Ohio S.Ct. Case No. 12–0639, Compl. p. 1.) The Relators’ complaint asserts that “the Secretary of State does not have authority under the Ohio Constitution to change or amend Ohio laws or to nullify the votes that Ohio legislators have made in passing those laws.” (Id.) Plaintiffs filed the instant motion on May 8, 2012, seeking an injunction against the Relators’ Mandamus Action and requesting an expedited briefing schedule on the motion. On May 9, 2012, the Court held a Rule 65.1 conference telephonically in which counsel for Plaintiffs, Relators, the State of Ohio, and Secretary of State Jon Husted (the “Secretary”) were present. The Court ordered an expedited response brief to be submitted from counsel for the Relators, who are the only party Plaintiffs seek to enjoin. On May 10, 2012, the Court held an additional status conference with the same parties and announced its ruling granting Plaintiffs’ motion. The Court advised that its written opinion would follow.
For the reasons stated on the record on May 10, 2012, and more fully explicated herein, the Court enjoins the Relators from seeking action in violation of the Consent Decree, ORDERS Relators to dismiss their Mandamus Action in the Supreme Court of Ohio, without prejudice, and instructs Relators to proceed in this Court with any further challenges or modifications to the terms of the Consent Decree.
III. LAW AND ANALYSIS
*3 Relators contend that the Plaintiffs’ request for injunctive relief should be rejected for the following three reasons: (1) Relators are not a party to this lawsuit, and therefore, this Court lacks jurisdiction to enjoin them from pursuing their state law claims; (2) there is and has been no violation of this Court’s orders as to make Plaintiffs’ claim ripe; and (3) principles of federalism provide that the Ohio Supreme Court is the final authority on issues of state law. (Dkt.255, p. 2.) As always, the Court first addresses whether it has proper jurisdiction over the issues and parties before it. Here, this means determining whether the Court has the authority to enjoin
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Northeast Ohio Coalition for the Homeless v. Husted, Not Reported in F.Supp.2d (2012)

Relators from prosecuting their mandamus action in state court. Second, this Court considers the ripeness issue, and, finally, this Court determines whether the relief requested by plaintiffs is appropriate and/or warranted.
A. This Court Has Jurisdiction Over the Relators
The jurisdiction of this Court over the Relators cannot reasonably be questioned. The State of Ohio and its “employees, agents and representatives” are bound under the Consent Decree’s orders by its express terms. (Dkt.210, ¶ 2.) The Relators are prosecuting their Mandamus Action on behalf of, and as official representatives and agents of the State of Ohio, which is a named party to the Consent Decree. (Id. p. 1) Pursuant to the parties’ agreement, as well as the inherent power of this Court to enforce its judgments, the Court has jurisdiction over the Relators and any other party, or agent of a party, to enforce the terms Consent Decree. Additionally, even if Relators were somehow considered nonparties to this action or the Consent Decree, their claimed interests as members of the General Assembly were expressly and adequately represented in the proceedings by the State of Ohio. In any event, the Court retains the inherent authority to enjoin a collateral attack, even by nonparties, upon the Consent Decree’s orders brought in another court.
1. The Relators are Bound by the Consent Decree as Representatives of the State of Ohio Relators do not dispute that the State of Ohio is a party to this action. Susan Ashbrook of the Attorney General’s office, in an affidavit to the Court, affirmed that the State of Ohio is “a party in this case,” that she “approved the language of the final Consent Decree on behalf of the State of Ohio.” (Dkt.219–2.) Relators instead insist that they are not representatives of the State of Ohio for the purposes of this case. Relators attempt to distinguish themselves as representatives of the General Assembly only, and argue that the General Assembly and its members are not, and never have been, parties to this action or to the Consent Decree. At least in their current Mandamus Action, Relators are mistaken. When prosecuting an action on behalf of the State, in their official capacity as elected officials of the State, Relators are acting in the place of the State of Ohio.

*4 The Mandamus Action has been brought by the Relators “ex relatione,” which is the Latin phrase for “on behalf of” or “upon the request of,” the State of Ohio. See Ohio ex. rel. Skaggs, 629 F.3d 527, 529 (6th Cir.2010) ( “ ‘[R]elators,’ the name given to claimants who file an action on behalf of others.”); see also Ohio Rev.Code 2731.04 (“Application for the writ of mandamus must be by petition, in the name of the state”). The Mandamus Action was filed by Attorney General for the State of Ohio, whose office has represented the State of Ohio in this action, including in the Consent Decree proceedings.1 Relators are prosecuting the Mandamus Action in their official capacities as elected state officials. As such, an order from this Court enjoining the Relators is, as far as the law is concerned, an Order enjoining the State of Ohio-a named party to this action and subject to the binding terms of the Consent Decree.

1

As stated by the Sixth Circuit in Blackwell:

Under Ohio Rev.Code Ann. § 109.02, the

Attorney General is “the chief law officer for the

state and all its departments” and shall appear for

the State in any tribunal in a case in which the

state is a party when required by the governor or

the general assembly. The Attorney General, then,

is both the State’s chief legal officer and a

representative of the people and the public interest,

but also a representative of an individual

officer-client.

467 F.3d at 1009 (citing Justin G. Davids, State

Attorneys General and the Client–Attorney

Relationship: Establishing the Power to Sue State

Officers, 38 COLUM. J.L. & SOC. PROBS. 365,

372–76 (2005)).

Fed.R.Civ.P. 65(d) provides that “every injunction,” which includes those in the Consent Decree, binds not just the parties, but “the parties’ officers, agents, servants, employees, and attorneys,” as well as any “other persons who are in active concert or participation with [them].” As a general doctrinal matter, it is well-established that state officials, when acting in their official capacity, stand in the place of the state. See, e.g., VIBO Corp. Inc. v. Conway, 669 F.3d 675, 691 (6th Cir.2012) (stating, in the context of sovereign immunity, that “[a] claim against a state officer acting in his official capacity is deemed to be a claim against the state”) (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989)).
Relators argue, however, that they are “no more agents of the State of Ohio for purposes of this case and the
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Northeast Ohio Coalition for the Homeless v. Husted, Not Reported in F.Supp.2d (2012)

[Consent] Decree than the Governor, the Auditor of State, the Treasurer of State, or the individual justices of the Ohio Supreme Court.” To support this proposition Relators rely on Ohio Rev.Code § 109.36(B), which states that, “ ‘State’ means the state of Ohio, including, but not limited to the general assembly, the supreme court, courts of appeals, the offices of the elected state officers, and all departments, boards, offices, commissioners, agencies, and other instrumentalities of the state of Ohio.” (emphasis added.) Under Ohio law, therefore, the General Assembly, and its elected state officers, is specifically included within the definition of the “State of Ohio.”
Narrowing the inquiry to this specific action, the record confirms the Attorney General’s Office unequivocally intended for the General Assembly’s interests to be encompassed within its representation of the State of Ohio. Appearing before the court seeking to intervene in this action, counsel for the State of Ohio stated that, “[i]t is the General Assembly that is asking our office to intervene on their behalf.” (Dkt. 255, 06–cv–896, Oct. 27, 2006 Trans., at 19:18–20.) (stating also that “[o]ne client is the General Assembly,” (Id. at 26:7–9)). The State of Ohio was permitted to intervene on behalf of itself and the General Assembly, a fact which was affirmed by the Sixth Circuit. Blackwell, 467 F.3d at 1002, 1008 (“The State of Ohio moves to intervene to represent the interests of the people of Ohio and the General Assembly in defending the constitutionality of the statute.... [T]he Secretary’s primary interest is in ensuring the smooth administration of the election, while the State and General Assembly have an independent interest in defending the validity of Ohio laws and ensuring that those laws are enforced.”).
*5 To the extent it holds any relevance, therefore, the Relators’ assertion that the General Assembly was not a party to this action or the Consent Decree is erroneous and misguided. The Attorney General’s Office, as is logical, will only designate “separate sets of attorneys representing its ‘different clients,’ ”(Relator’s Opp ., p. 5, fn. 2), when those clients have conflicting interests. In this case, counsel from the Attorney General’s Office represented Secretary Blackwell, and then separate counsel from that office represented the State of Ohio on behalf the General Assembly. The Attorney General’s Office, thus, intended the State of Ohio to encompass the General Assembly because their interests were aligned. The General Assembly, as distinct from the State of Ohio, need not have had separate counsel in a particular action for its members to be bound by the judgments in that action.2

2

It is critical to appreciate what the Court is not holding.

The Court is by no means suggesting that distinct

entities and/or governmental bodies within the State of

Ohio can never be considered separate parties, or

represent opposed interests to one another. Such a

suggestion would be absurd, given the very posture of

this action, which involves distinct bodies and offices

within the State of Ohio. Where, as here, the State of

Ohio has intervened on behalf of its interests “and the

General Assembly in defending the constitutionality” of

the laws of Ohio, however, and where the State then

enters into a particular Consent Decree binding its

agents and officers and waiving further litigation in any

court, so long as that Consent Decree is valid, its

officers may not subsequently challenge those same

terms, except through the mechanisms provided in the

Consent Decree.

As there is no dispute that the State of Ohio is a party to this action, there can accordingly be no dispute that Relators, who bring the Mandamus Action “on behalf of” the State of Ohio in their capacities as elected state officers and members of the General Assembly, are bound by the terms of the Consent Decree when acting in that capacity.

2. The Court has the Power to Enforce its Judgments Against Nonparty Interference Even if Relators were not treated as representatives of the State of Ohio, and were not parties to this action, the Court would have authority under the All Writs Act, 28 U.S.C. § 1651, and elsewhere,3 to enjoin them from “frustration of [the] consent decree[ ].” See City of Detroit, at 517 (6th Cir.2003) (en banc) (“[W]e hold that the All Writs Act provides district courts with the authority to bind nonparties in order to prevent the frustration of consent decrees that determine parties’ obligations under the law.”) (emphasis added.) Relators argue that the Consent Decree only places legal obligations on the Secretary, and thus they cannot be bound from taking actions to defeat the Consent Decree. This argument is meritless, because the City of Detroit test for binding nonparties does not require that the consent decree impose legal obligations on the nonparties themselves.

3

See Fed.R.Civ.P. 65(d)(2)(C), discussed supra.

Even if the General Assembly, and by extension, Relators, 4

Northeast Ohio Coalition for the Homeless v. Husted, Not Reported in F.Supp.2d (2012)

was not a fully distinct party to the Consent Decree, because its interests were represented by the State of Ohio, Relators are bound by it. In Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1940), the Supreme Court stated that “consistent with the Due Process Clause, ‘members of a class not present as parties to the litigation may be bound by the judgment where they are in fact adequately represented by parties who are present ... or where for any other reason the relationship between the parties present and those who are absent is such as legally to entitle the former to stand in judgment for the latter.’ ” Tenn. Ass’n of Health Maint. Orgs., Inc. v. Grier, 262 F.3d 559, 564 (6th Cir.2001). Simply because Relators now find their particular individual interests to be in conflict with certain provisions of the Consent Decree does not magically release them from its terms; otherwise, entering the decree would have had no purpose.
*6 Relators complain that the State of Ohio was not represented at the April 19, 2010 hearing regarding the Consent Decree’s terms, and thus the State of Ohio did not agree to the Consent Decree. This argument, in addition to being untimely, smacks of disingenuousness. Two full years have passed since the Consent Decree’s issuance, and the State of Ohio is a clearly designated party bound to the Consent Decree. (Decree, p. 1; p. 3, para 2.) Paragraph 11 of the Consent Decree provides that at any time, “any of the parties may file a motion with the Court to modify, extend or terminate this Decree” for good cause shown. Relators did not even attempt to utilize the mechanisms provided in the Consent Decree to challenge its terms. Relators complaint of having not been duly represented in the proceedings is a motion to be made in this Court, not the Supreme Court of Ohio.
B. The Court’s Authority to Enjoin the Relators’ Proceedings
1. The All Writs Act
In addition to challenging the Court’s jurisdiction, the Relators argue that the matter is not ripe, there being no violation of the Consent Decree to warrant an injunction. Supreme Court and Sixth Circuit case law state otherwise. The precise relief requested by Plaintiffs—of enjoining a state court action from further prosecution before a decision has been made therein—has been previously

upheld. See Lorillard Tobacco Co. v. Chester, Willcox & Saxbe, 589 F.3d 835 (6th Cir.2009) (affirming the district court’s order, under the All Writs Act, “enjoin[ing] based upon the terms of the permanent injunction to which they agreed, [a party] from proceeding with the Florida [state court] Lawsuit”); City of Detroit, 329 F.3d at 523–24 (“The force of a consent judgment is well settled within our judicial system ... The All Writs Act makes no distinction between consent judgments and court orders.”).
The All Writs Act provides that “the Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651. The Supreme Court has held that a federal district court may “issue such commands under the All Writs Act as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued.” U.S. v. New York Tel. Co., 434 U.S. 159, 172, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977) (holding that the All Writs Act allows the court to issue orders, even to non-parties, who “are in a position to frustrate the implementation of a court order”).
In the Consent Decree, the Court ordered that the Secretary adhere to certain rules and issue specific directives with respect to voting procedures, and in particular the counting of provisional ballots. The Relators’ Mandamus Action seeks an order “to compel the Secretary of State to rescind directives issued pursuant to a consent decree,” (Ohio S.Ct. Case No. 12–0639, Compl. p. 1). The practical effect of the Relators’ action is to frustrate this Court’s final judgment from being carried out, and the All Writs Acts allows the Court to enjoin Relators from proceeding with it. As the Sixth Circuit stated in Lorillard, the “district court’s enjoining of the state-court litigation, therefore, is a proper means of enforcing its previously entered permanent injunction.” 589 F.3d at 847.
*7 Relators claim that the Anti–Injunction Act, 28 U.S.C. § 2283, prohibits the Court from enjoining Relators’ action. The Anti–Injunction Act’s exceptions provide, however, that the Court is within its authority. The Anti–Injunction Act provides:
A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid
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Northeast Ohio Coalition for the Homeless v. Husted, Not Reported in F.Supp.2d (2012)

of its jurisdiction, or to protect or effectuate its judgments.
28 U.S.C. § 2283 (emphasis added).
All three exceptions apply here. First, Plaintiffs’ action was brought under an Act of Congress, 42 U.S.C. § 1983’s provisions for civil relief from violations of constitutionally and federally protected civil rights. The Supreme Court has held that “Congress plainly authorized the federal courts to issue injunctions in § actions.” Mitchum v. Foster, 407 U.S. 225, 226, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972) (concluding, therefore, that “ § is an Act of Congress that falls within the ‘expressly authorized’ exception of the [Anti–Injunction Act]”).
The second exception, discussed by the Lorillard Court at length, applies here as well. The Sixth Circuit there held that the second, “necessary in aid of its jurisdiction” exception “is applicable to a district court’s continuing authority to enforce a settlement agreement where the agreement is either incorporated into the court’s final judgment or the court expressly retains jurisdiction over the agreement in such judgment.” Lorillard, 589 F.3d at 845 (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 380–81, 114 S.Ct. 1673, 128 L.Ed.2d 391(1994)). The continuing jurisdiction of the Court to enforce the terms of the Consent Decree “until June 30, 2013,” as agreed to by the parties, brings any injunction order enforcing the Consent Decree squarely within the exception to the Anti–Injunction Act. (Dkt. 210, p. 2; ¶ 9.)
Finally, an injunction is permitted under the third exception to the Anti–Injunction Act where it is necessary to protect the Court’s judgments. An order enjoining a collateral attack on the Consent Decree, a final judgment from this Court which is still in effect, is one made under the third exception.
Relators’ argument that only “in rem” jurisdiction cases apply for the exception of the Anti Injunction Act is erroneous. Lorillard was not an “in rem” jurisdiction case, but the injunction there was upheld. Lorillard dealt with a class action settlement which was merely “analogous to ... an in rem action ..., where it is intolerable to have conflicting orders from different courts.” Lorillard, 589 F.3d at 848; see also Battle v. Liberty Nat’l Life Ins. Co., 877 F.2d 877, 882 (11th Cir.1989) (reasoning that a “lengthy, complicated litigation is the virtual equivalent of a res” (citation and internal quotation marks omitted)).
Indeed, “[s]o long as the court is acting pursuant to this

authority, the All Writs Act ‘authorizes a federal court to issue such commands as may be necessary or appropriate to effectuate and prevent the frustration of its orders it has previously issued in exercise of jurisdiction otherwise obtained.’ “ Id. at 844 (quoting City of Detroit, 329 F.3d at 522). Because this Court has retained jurisdiction over the Consent Decree, and over the Relators to prevent their frustration of that decree, “[s]uch orders are excepted from the prohibition of the Anti–Injunction Act.” Id.
C. Necessity of Plaintiffs’ Requested Injunction
*8 Relators claim that despite the nature of their Mandamus Action, to compel the Secretary to make orders contrary to those required by the Consent Decree, enjoining Relators’ action is not necessary because the Mandamus Action addresses only issues of state law, and does not threaten the Court’s judgment. The Supreme Court has specified the three conditions precedent to issuance of a writ pursuant to the All Writs Act:
First, the party seeking issuance of the writ [must] have no other adequate means to attain the relief he desires,-a condition designed to ensure that the writ will not be used as a substitute for the regular appeals process. Second, the petitioner must satisfy the burden of showing that [his] right to issuance of the writ is clear and indisputable. Third, even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.
Cheney v. United States Dist. Court for the Dist. of Columbia, 542 U.S. 367, 380–81, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) (internal quotations and citations omitted).
First, the Plaintiffs have made a compelling showing that an order enjoining the Relators from pursuing their collateral challenge to the Consent Decree is necessary. No alternative means exist which would ensure against rulings issuing contrary to the Consent Decree. Conflicting orders to the Secretary from the Ohio
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Northeast Ohio Coalition for the Homeless v. Husted, Not Reported in F.Supp.2d (2012)

Supreme Court would not only undermine the jurisdiction of this Court, but would further confuse an already well-muddied electoral landscape in these critical months leading up to a Presidential Election.4

4

Counsel for the Secretary affirmed, at the Court’s May

9, 2012 hearing, that, despite conflicting language from

the Ohio Supreme Court in State ex rel. Painter v.

Brunner, 128 Ohio St.3d 17, 941 N.E.2d 782 (Ohio

2010), the Secretary believes he is bound by the

Consent Decree. While the Secretary’s conclusion that

he is bound by the Consent Decree may seem clear

enough, further conflicting directives is precisely what

this Court seeks to avoid with this injunction.

As discussed in Sections A and B of the Court’s Opinion, Plaintiffs have satisfied their burden of showing that the Court’s authority to issue an injunction in this case is clear and indisputable. Finally, the requested relief is warranted given the Relators’ extraordinary act of lodging a direct collateral attack on a Consent Decree of this Court which is still in effect. The severity of any injunction is lessened, once again, by the fact that the Consent Decree provides Relators the opportunity for challenges and/or requests for modifications. The Relators, instead of attempting to circumvent the Consent Decree’s terms through a collateral challenge in state court, should have filed a motion under Paragraph 11 the Consent Decree which states that “any of the parties may file a motion with the Court to modify, extend or terminate this Decree for good cause shown.” (Dkt.210, ¶ 11.) Far from Relators being forever denied their only day in Court to protect their interests as members of the General Assembly, as they dramatically assert, the Consent Decree contemplated the parties’ changing interests, which is why it provided for future modifications upon motion in this Court. The Court has already scheduled further proceedings in which Relators may bring such a motion if necessary. (Dkt.259.)
The Relators, finally, attempt to cast the Mandamus Action as unrelated to the Consent Decree and the constitutional issues resolved therein, claiming that the Mandamus Action “is much broader than the particulars of a single case” and merely asks the Ohio Supreme Court to decide a “narrow issue of Ohio state law.” (Dkt.255, p. 1) The Relators’ complaint in the state court, however, plainly states the primary purpose, aim, and relief requested in the Mandamus Action is “to compel the Secretary of State to rescind directives issued pursuant to a consent decree,” (Ohio S.Ct. Case No. 12–0639, Compl.

p. 1); that is, to compel the Secretary to disobey this Court’s orders pursuant to the Consent Decree.
*9 That the Relators couch their grounds for seeking mandamus chiefly in terms of Ohio law does not alter the nature of their collateral attack on the decree of this Court. As the district court stated in Lorillard, “[r]egardless of how [plaintiff]’s [state court] claims are captioned, or in what form [plaintiff] seeks payment of the Supplements, the claims in the [state court] Lawsuit ‘relate to any matter set forth in the Settlement Agreement.’ “ Lorillard, Case No. 04–cv–715, 2008 WL 4326466, at *3 (S.D.Ohio 2008) (ordering that “[plaintiff] is therefore enjoined, based upon the terms of the permanent injunction to which they agreed, from proceeding with the [state court] Lawsuit”).
Upon entering into the Consent Decree, and upon the Court’s approval of the Consent Decree, the parties agreed they would be “subject to the continuing validity of this Decree if it or its terms are challenged in any other court.” (Dkt.210, p. 2.) The Court’s present injunction is a limited intrusion into the Ohio Supreme Court proceedings necessitated by the Relators’ prior commitments in this Court. The injunction in no way challenges the Ohio Supreme Court’s power to decide Ohio law. See Atl. Coast Line R.R. Co. v. Bhd. of Locomotive Eng’rs, 398 U.S. 281, 295, 90 S.Ct. 1739, 26 L.Ed.2d 234 (1970) (acknowledging that the exceptions to the Anti–Injunction Act “imply that some federal injunctive relief may be necessary to prevent a state court from so interfering with a federal court’s consideration or disposition of a case as to seriously impair the federal court’s flexibility and authority to decide that case”).
The Secretary cannot obey conflicting orders on how to direct the Board of Elections. Where, as here, the real possibility of such conflicting orders threatens to create an “unseemly conflict” between state and federal courts “whose jurisdiction embraces the same subject and persons,” an injunction is appropriate. See Kline v. Burke Const. 260 U.S. 226, 235, 43 S.Ct. 79, 67 L.Ed. 226 (1922) (“The rank and authority of the courts are equal, but both courts cannot possess or control the same thing at the same time, and any attempt to do so would result in unseemly conflict.”). Unlike the state-court action involved in Hunter, which “[did] not in any way challenge the district court’s conclusion,” (Painter Compl. ¶ 4, Dkt. 257–1), the Relators’ Complaint is an action with the direct aim and purpose of compelling the Secretary to rescind directives ordered by the Consent Decree. Even moreso than in the class action settlement
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Northeast Ohio Coalition for the Homeless v. Husted, Not Reported in F.Supp.2d (2012)

context of Lorillard, the interests of maintaining clear voting requirements in the upcoming months and weeks preceding a Presidential election make “ ‘it is intolerable to have conflicting orders from different courts.’ ” Lorillard, 589 F.3d at 848 (citations omitted). Likewise, the Secretary cannot be ordered to implement separate contradicting directives at the same time.
IV. CONCLUSION

Plaintiffs Motion to Enjoin the Relators’ State Court Proceeding is GRANTED. Relators are ORDERED to voluntarily dismiss their action in the Supreme Court of Ohio, without prejudice. Plaintiffs request for an order to show cause why Relators should not be held in civil contempt is DENIED, pending Relators compliance with this Order.
*10 IT IS SO ORDERED.

8

 
 Service Employees Intern. Union, Local 1 v. Husted, 887 F.Supp.2d 761 (2012)

887 F.Supp.2d 761 United States District Court,
S.D. Ohio, Eastern Division.
SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1, et al., Plaintiffs, v. Jon HUSTED, et al., Defendants.
The Northeast Ohio Coalition for the Homeless, et al., Plaintiffs, v.
Jon Husted, in his official capacity as Secretary of the State of Ohio, Defendant, and
State of Ohio, Intervenor–Defendant.
Case Nos. 2:12–CV–562, 2:06–CV–896. | Aug. 27, 2012.
Synopsis Background: Nonprofit organization representing the homeless, and local affiliate of national labor union, brought § 1983 actions against then Ohio Secretary of State challenging constitutionality of several provisions of Ohio law requiring voters to provide one of several types of identification in order to cast regular ballot in state and federal elections held in Ohio. Parties initially resolved lawsuit prior to any final adjudication on the merits on constitutional claims by entering into consent decree. The District Court, Algenon L. Marbley, J., 2012 WL 2711393, upheld validity of decree and denied request to vacate it. Four individuals moved to intervene in union’s case. Union plaintiffs moved for preliminary injunction against specific provisions of Ohio’s election code that disqualified provisional ballots cast in the wrong precinct or cast with deficiencies in ballot envelope form when ballot’s deficiency was result of poll worker error. Homeless organization moved to modify consent decree to state that county boards of elections could not reject provisional ballot cast by worker who only used last four digits of his social security number as identification because of poll worker error.
Holdings: The District Court, Marbley J., held that:

[1] motion to intervene was untimely and interests of proposed intervenors were adequately represented;
[2] union plaintiffs demonstrated likelihood of success on merits of their equal protection claims for wrong-precinct ballot prohibition, envelope deficiencies, disparate impact of poll worker error by county, and unequal treatment of provisional voters;
[3] union plaintiffs’ substantive due process claim also had strong likelihood of success on the merits;
[4] prospective harm to plaintiffs in upcoming election if challenged provisions of Ohio election code were not enjoined was irreparable;
[5] balancing of harms also weighed in favor of granting injunctive relief;
[6] public interest factor weighed in favor of counting provisional ballots cast by registered voters; and
[7] court would indefinitely stay decision on homeless organization’s motion to modify consent decree, subject to renewal if warranted upon timely request for good cause shown.
Ordered accordingly.
See, also, 2012 WL 3734369, 695 F.3d 563.
West Codenotes
Validity Called into Doubt Ohio R.C. § 3505.183.
Attorneys and Law Firms
*765 Michael John Hunter, Cathrine J. Harshman, Hunter Carnahan & Shoub & Byard, Columbus, OH, Barbara J. Chisholm, Danielle E. Leonard, Stacey M. Leyton, Stephen P. Berzon, Altshuler Berzon LLP, San Francisco, CA, Donita Judge, Penda Hair, Uzoma Nkwonta, Advancement Project, Washington, DC, for Plaintiffs.
Colleen Marie McCafferty, David Todd Stevenson, Cincinnati, OH, David Gregory Lambert, Prosecuting Attorney’s Office, Cleveland, OH, Nick A. Soulas, Jr., Franklin County Prosecutor’s Office, Columbus, OH, for
1

Service Employees Intern. Union, Local 1 v. Husted, 887 F.Supp.2d 761 (2012)

Defendant. Opinion

ALGENON L. MARBLEY, District Judge.

PLENARY OPINION AND ORDER
TABLE OF CONTENTS
..............................................................................................................................................................................

Page #

I.Introduction ......................................................................................................................... ......... 766 ..................................................................................................................................................
II.Background ......................................................................................................................... ......... 766

A. Ohio’s Precinct System and Provisional Voting Regime............................ ......... 767 B. Legal Duties of Election Officials and “Poll–Worker Error” ...................... ......... 770

..................................................................................................................................................
2

Service Employees Intern. Union, Local 1 v. Husted, 887 F.Supp.2d 761 (2012)
III.Motion to Intervene ........................................................................................................... ......... 771
A. Procedural History ................................................................................................... ......... 771 B. Law and Analysis...................................................................................................... ......... 772
.................................................................................................................................................. IV.Motion for Preliminary Injunction ................................................................................ ......... 772
A. Summary...................................................................................................................... ......... 772 B. Legal Background .................................................................................................... ......... 773
1. Ohio’s Precinct–Only Eligibility Requirement Complies with HAVA .............................................................773 2. The Hunter Litigation ...........................................................................................................................................................774
C. Preliminary Injunction Standard of Review ..................................................... ......... 776
3

Service Employees Intern. Union, Local 1 v. Husted, 887 F.Supp.2d 761 (2012)
D. Law and Analysis...................................................................................................... ......... 777
1. Likelihood of Success on the Merits.............................................................................................................................777
a. Equal Protection .........................................................................................................................................................778
i.First Equal Protection Claim (Wrong–Precinct Ballot Prohibition) .................................. .................779
(a ) Identifying the burden imposed by the Ohio law ...................................................... .................779 (b ) Whether the restriction if justified by sufficient state interests ............................. .............. 785 (c ) The restriction fails review for invidiousness ............................................................. .................788
ii.Second Equal Protection Claim (Ballot EnvelopeDeficiencies) ....................................... .................790 iii.Third Equal Protection Claim (Disparate Impact ofPoll–Worker Error by County) .... .................792 iv.Fourth Equal Protection Claim (Unequal Treatment of Provisional Voters) ................ .............. 793
b. Substantive Due Process .......................................................................................................................................794 4

Service Employees Intern. Union, Local 1 v. Husted, 887 F.Supp.2d 761 (2012)

2. Irreparability of Harm ...........................................................................................................................................................795 3. Balancing of Harms ..............................................................................................................................................................795 4. Public Interest .........................................................................................................................................................................796
E. Appropriate Injunctive Relief ................................................................................ ......... 798

.................................................................................................................................................. V.Motion to Modify the Consent Decree ........................................................................ ......... 798

*766 I. INTRODUCTION
These two related cases1 are before the Court for determination of the following matters: first, the Motion to Intervene filed by the Proposed Intervenors Roberta Van Atta, Emilie Illson, Thomas Kelly, and Charles Pennell in Service Employees International Union, Local 1 et al. v. Husted (“SEIU”) (“Motion to Intervene,” Dkt. 65); second, the Motion for Preliminary Injunction filed by the Plaintiffs in SEIU (“Motion for Preliminary Injunction,” Dkt. 4); and third, the Motion to Modify the Consent Decree filed by the Plaintiffs in Northeast Ohio Coalition for the Homeless et al. v. Husted (“NEOCH”) (“Motion to Modify,” Dkt. 288).

1

On June 26, 2012, the Court determined these two

actions challenging the constitutionality of Ohio’s voter

identification and provisional ballot laws to be related

cases pursuant to S.D. Ohio Local Rules § 3.1(b)(2).

See Order Relating Cases, 06–cv–896, Dkt. 302;

12–cv–562, Dkt. 16.

The SEIU Plaintiffs’ Motion for Preliminary Injunction seeks to enjoin specific provisions of Ohio’s election code that disqualify provisional ballots cast in the wrong precinct or cast with deficiencies in the ballot envelope form, when the ballot’s deficiency is the result of an error by the poll worker. Similarly, the NEOCH Motion to Modify requests that the Court expands the terms of the NEOCH Consent Decree (“Decree,” Dkt. 210) to state that the county boards of elections (“Boards”) may not reject a provisional ballot cast by a voter who uses only
5

Service Employees Intern. Union, Local 1 v. Husted, 887 F.Supp.2d 761 (2012)

the last four digits of his or her social security number as identification because of poll-worker error. Because the requested relief in the Motion to Modify is encompassed within the Plaintiffs’ proposed injunction in the Motion for Preliminary Injunction,2 and because the basis for relief in the Motion to Modify depends on the determination of the constitutional violations at issue in the SEIU case, the Court will address the merits of the SEIU motions first.

2

In Plaintiffs’ words, SEIU’s proposed preliminary

injunction requests “the same injunctive relief as

proposed by [the NEOCH Motion to Modify], but with

respect to all Ohio provisional voters.” Motion to

Modify, at 5.

II. BACKGROUND
These cases together represent the turbulent saga of Ohio’s provisional voting regime. On January 31, 2006, Ohio’s comprehensive election reform bill, House Bill 3, was passed by the Ohio General Assembly and signed into law. Shortly after the November 2006 general election, the NEOCH Plaintiffs brought their initial challenge to Ohio’s amended voter identification requirements. See NEOCH v. Brunner, No. C2–06–CV–896 (S.D.Ohio). The NEOCH lawsuit alleges, inter alia, *767 that Ohio’s voter identification laws violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The parties in NEOCH initially resolved the lawsuit prior to any final adjudication on the merits of Plaintiffs’ constitutional claims by entering into the Decree in April 2010. The Decree, “among other provisions, mandated that the Board ‘may not reject a provisional ballot cast by a voter, who uses only the last four digits of his or her social security number as identification’ if certain deficiencies in the ballot, including being cast ‘in the wrong precinct, but in the correct polling place,’ were the result of poll-worker error.” Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219, 223 (6th Cir.2011) ( “Hunter I ”) (quoting Decree, at ¶ 5).
Earlier this year, the Relators and Defendants sought to vacate the Decree’s terms. The Plaintiffs objected, however, and the Court upheld the validity of the Decree in its most recent opinion and order. See NEOCH v. Husted, No. 06–CV–896, 2012 WL 2711393, 2012 U.S.

Dist. LEXIS 94086 (S.D.Ohio July 9, 2012). During the pendency of the Defendants’ request to vacate the Decree, Plaintiffs filed their Motion to Modify, and different (along with some of the same) organizations in the SEIU case filed a new challenge to Ohio’s provisional ballot-counting rules. The SEIU Plaintiffs seek a statewide injunction requiring that registered voters’ provisional ballots which are cast in the wrong precinct (so-called “wrong-precinct ballots”), or cast with technically deficient ballot envelopes, still be counted unless the poll worker who processed the deficient ballot affirms that the ballot deficiency is not the result of poll-worker error.
A. Ohio’s Precinct System and Provisional Voting Regime
The following explanation of developments in the legal landscape of Ohio’s voter eligibility and provisional ballot counting standards is relevant to both lawsuits. Following the 2000 general election, Congress turned its attention to the “significant problem” of voters being turned away from polls because election workers were unable to confirm the voters’ eligibility on the spot. See Sandusky Cnty. Democratic Party v. Blackwell, 387 F.3d 565, 569 (6th Cir.2004). In 2002, Congress passed the Help America Vote Act, 42 U.S.C. § 15301 et seq. (“HAVA”), which “creat[ed] a system for provisional balloting ... under which a ballot would be submitted on election day but counted if and only if the person was later determined to have been entitled to vote.” Sandusky, 387 F.3d at 569 (“In essence, HAVA’s provisional voting section is designed to recognize, and compensate for, the improbability of ‘perfect knowledge’ on the part of local election officials.”). Under HAVA, any person at the polling place “who claims eligibility to vote, but whose eligibility to vote at that time and place cannot be verified” by the election worker, “shall be permitted to cast a provisional ballot.” See Sandusky, at 569–70 (quoting 42 U.S.C. § 15482(a)).
Before 2004, Ohio did not require an individual to present identification either when registering to vote or when voting. Federal law under HAVA contained only a limited voter identification requirement, applicable only to first-time voters who registered by mail. See 42 U.S.C. § 15483. The 2006 amendments to Ohio’s election code, however, “require that voters provide any of several specific types of identification in order to cast a regular
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Service Employees Intern. Union, Local 1 v. Husted, 887 F.Supp.2d 761 (2012)

ballot in state and federal elections held in Ohio.” Northeast Ohio Coalition for Homeless and Serv. Emp. Intern. Union, Local 1199 v. Blackwell, 467 F.3d 999, 1002 (6th Cir.2006); see also Ohio Rev.Code § 3505.18. Ohio’s voter identification requirements, which have been referred to *768 as “exceptionally convoluted,”3 now provide thirteen different statutory reasons why an individual will be required to cast a provisional ballot on election day. See Ohio Rev.Code § 3505.181(A)(1)-(13).4 Plaintiffs blame Ohio’s complicated voter identification and provisional ballot laws for the relatively high rate of Ohio voters forced to cast provisional ballots rather than normal ballots in recent elections.5

3

See Daniel P. Tokaji, Leave it to the Lower Courts: On

Judicial Intervention in Election Administration, 68

Ohio St. L.J. 1065, 1079 (2007).

4

For example, individuals who do not have an

acceptable form of identification, whose names are not

on the official list of eligible voters for the polling

place, who requested an absentee ballot, or whose

signature was deemed by the precinct official not to

match the name on the registration forms may be asked

to cast a provisional ballot. See Ohio Rev.Code §

3505.181(A)(1)-(13).

5

Ohio’s rate of provisional ballots cast as a percentage

of total ballots cast was around three times the national

average in both the 2008 and 2010 elections. See

Declaration of Professor David C. Kimball, Exh. B,

David C. Kimball, “Provisional Voting in Ohio and the

Nation,” June 2012 (hereinafter, “Kimball Report”),

Dkt. 9–2, Tables 1–2. In the 2008 general election, for

example, more than 200,000 Ohio voters were required

to cast provisional ballots—more than any other state

besides California. Id., Table 3, p. 6.

To cast a provisional ballot, the voter must first execute an affirmation stating that he or she is registered to vote in the jurisdiction and is eligible to vote in the election. Id. §§ 3505.181(B)(2); 3505.182. Rather than being “placed into the eScan on election day like a regular voter’s ballot,” the provisional ballot is then “sealed in a special ‘Provisional Ballot Affirmation Envelope.’ ” Hunter v. Hamilton Cnty. Bd. of Elections, 850 F.Supp.2d 795, 809 (S.D.Ohio 2012) (“Hunter II ”). The Board later determines whether a provisional ballot is valid and required to be counted. If the Board is able to determine

that the individual is eligible “to cast a ballot in the precinct and for the election in which the individual cast the provisional ballot,” the provisional ballot is counted. Ohio Rev.Code § 3505.183(B)(3)(b). Conversely, if the Board determines that “[t]he individual named on the affirmation is not eligible to cast a ballot in the precinct or for the election in which the individual cast the provisional ballot,” then “the ballot envelope shall not be opened and the ballot shall not be counted.” Id. § 3505.183(B)(4)(a)(ii).6

6

Subsection (4)(a) provides that, “[i]f, in examining a

provisional ballot affirmation and additional

information under divisions (B)(1) and (2) of this

section and comparing the information required under

division (B)(1) of this section with the elector’s

information in the statewide voter registration database,

the board determines that any of the following applies,

the provisional ballot envelope shall not be opened, and

the ballot shall not be counted:

(i) The individual named on the affirmation is not

qualified or is not properly registered to vote.

(ii) The individual named on the affirmation is not

eligible to cast a ballot in the precinct or for the

election in which the individual cast the

provisional ballot.”

Ohio Rev.Code § 3505.183(B)(4)(a)(ii) (emphasis

added).

Ohio divides its voting jurisdictions into precincts. Courts have recognized that “[t]he advantages of the precinct system are significant and numerous,” Sandusky, 387 F.3d at 569,7 although certain “troubling” aspects of Ohio’s precinct system *769 have been identified as cause for great concern. See Hunter I, 635 F.3d at 243–44. Primarily implicated by Plaintiffs’ challenges here, as in Hunter, is Ohio’s strict disqualification of any ballot cast in the wrong precinct, regardless of the reason. See Ohio Rev.Code § 3505.183(B)(4)(a)(ii); State ex rel. Painter v. Brunner, 128 Ohio St.3d 17, 941 N.E.2d 782, 794 (2011) (holding that Ohio’s election statutes “do not authorize an exception based on poll-worker error to the requirement that ballots be cast in the proper precinct in order to be counted”).8

7

As the Sixth Circuit states:

[I]t [the precinct system] caps the number of

voters attempting to vote in the same place on

election day; it allows each precinct ballot to list

all of the votes a citizen may cast for all pertinent

federal, state, and local elections, referenda,

initiatives, and levies; it allows each precinct

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Service Employees Intern. Union, Local 1 v. Husted, 887 F.Supp.2d 761 (2012)

ballot to list only those votes a citizen may cast, making ballots less confusing; it makes it easier for election officials to monitor votes and prevent election fraud; and it generally puts polling places in closer proximity to voter residences. Sandusky, 387 F.3d at 569.

8

By now it is established and undisputed that, aside from

those provisional ballots protected by the Decree, Ohio

law under Painter mandates the strict disqualification

of any ballot cast in the wrong precinct, with no

exceptions for ballots miscast due to poll-worker error.

See NEOCH, 2012 WL 2711393, at *10–13, 2102 U.S.

Dist. LEXIS 94086, at *34–45.

Under the Ohio Supreme Court’s holding in State ex rel. Painter v. Brunner, provisional ballots cast in the wrong precinct must be summarily disqualified, even if the voter was not at fault, and even if the Board determines that the voter is lawfully registered to vote.9 See 941 N.E.2d at 794–95. The current application of Ohio law “penalizes the voter when a poll worker directs the voter to the wrong precinct.” Hunter I, 635 F.3d at 244 (adding that “the penalty, disenfranchisement, is a harsh one indeed”).

9

The only exception to rejecting wrong-precinct ballots

recognized under Painter is for provisional ballots

covered by the NEOCH Decree. See Painter, 941

N.E.2d at 795 (noting that the Board’s determination of

“whether poll-worker error caused provisional ballots

in multiple-precinct locations to be cast in the wrong

precinct, were accordingly limited to provisional ballots

cast by voters who used only the last four digits of their

Social Security numbers as identification”).

The problems created by Ohio’s rejection of all provisional ballots cast in the wrong precinct are exacerbated by the increasingly widespread prevalence of “multi-precinct” polling locations throughout the State.10 These are polling places, more often utilized in large urban counties, that, “[f]or financial and other administrative reasons ... serve as the polling location for several nearby precincts.” Id. at 223. Poll workers serving multi-precinct polling places are tasked with determining the correct provisional ballot to give each provisional voter based on the precinct in which the voter resides. The additional confusion created by multi-precinct polling locations increases the instances of so-called “wrong-precinct” provisional ballots given out to voters

by poll workers, only to be disqualified upon further review by the county Board.11 Statewide, in these multi*770 precinct polling locations, registered voters who arrive at their correct polling location have received provisional ballots for the wrong precinct from the poll worker.12 See id. at 244 n. 24 (noting, “[a]s a result, fewer provisional ballots are likely to be counted in multiple-precinct polling places than in those that serve only a single precinct”).

10

Data returned to Plaintiffs from the responsive Boards

suggests that, in the recent 2012 primary election, for

example, the large majority of voting precincts were

located in multi-precincts polling locations. See

Declaration of Natalya DeRobertis–Theye, Dkt. 8, ¶ 5.

For example, Cuyahoga County now has 998 of its

1063 total precincts, or 94 percent, in multi-precinct

polling locations, with an average of 2.73 precincts per

multi-precinct polling location. Id. Exh. A. Examples of

other counties include: Butler (95 percent of precincts

in multi-precinct locations, average of 3.31); Greene

(100 percent, average 3.68 precincts per multi-precinct

location); Franklin (68 percent, average 2.40 precincts

per multi-precinct location); Lorain (90 percent,

average 2.95 precincts per multi-precinct location);

Montgomery (88 percent, average 2.36 precincts per

multi-precinct location); Stark (71 percent, average

2.55 precincts per multi-precinct location). Id.

11

See, e.g., Hunter II, where:

the evidence showed that multi-precinct voting

creates great pressures on poll workers, who are

expected to learn a complicated provisional voting

process and navigate an obfuscatory address book

after a mere three-hour training course. Poll

workers in these circumstances are more likely to

make mistakes in processing provisional voters

than Board staff working at the Board office,

where a staff person need only enter a voter’s

address into a computer to discern which ballot to

provide.

850 F.Supp.2d at 839.

12

See Kimball Report, Table 15, discussed, infra.

B. Legal Duties of Election Officials and “Poll–Worker Error”
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Service Employees Intern. Union, Local 1 v. Husted, 887 F.Supp.2d 761 (2012)

Before an election, the Boards train “election officials” (i.e., poll workers) and instruct them using the materials and directives provided by the Secretary. Ohio Rev.Code § 3501.22. Poll workers have significant and specific legal responsibilities,13 including determining whether an individual is eligible to vote in the precinct, Ohio Rev.Code. § 3505.181(C)(1). Poll workers must also direct an individual to his or her correct precinct if the individual attempts to vote in the wrong precinct.14 Id. As the Court explained in Hunter II, “so long as a voter gives the poll worker his or her correct address and the poll worker complies with state law, a voter cannot cast a provisional ballot in the wrong precinct without knowing that he is casting it in the wrong precinct and that, consequently, the ballot will not be counted.” 850 F.Supp.2d at 808.

13

For example, “[p]oll workers are responsible for

receiving ballots and supplies, opening and closing the

polls, and overseeing the casting of ballots during the

time the polls are open.” Hunter II, 850 F.Supp.2d at

807 (citing Ohio Rev.Code § 3501.22).

14

Specifically, Ohio law requires that:

... if, upon review of the precinct voting location

guide using the residential street address provided

by the individual, an election official at the polling

place at which the individual desires to vote

determines that the individual is not eligible to

vote in that jurisdiction, the election official shall

direct the individual to the polling place for the

jurisdiction in which the individual appears to be

eligible to vote, explain that the individual may

cast a provisional ballot at the current location but

the ballot will not be counted if it is cast in the

wrong precinct, and provide the telephone number

of the board of elections in case the individual has

additional questions.

Ohio Rev.Code § 3505.181(C)(1).

As summarized by the Sixth Circuit, “Ohio has created a precinct-based voting system that delegates to poll workers the duty to ensure that voters, provisional and otherwise, are given the correct ballot and vote in the correct precinct.” Hunter I, 635 F.3d at 243. The State of Ohio has defined “poll-worker error” as “ ‘when a poll worker acts contrary to or fails to comply with federal or Ohio law or directive issued by the Secretary of State.’ ” See Painter, 941 N.E.2d at 789 (quoting Directive 2010–79). As a matter of law, if a person casts a

provisional ballot in the wrong precinct, it is always going to be due to poll-worker error unless the poll worker has instructed the individual where the correct polling location is and that individual “refuses to travel to the polling place for the correct [precinct] or to the office of the board of elections to cast a ballot.” Ohio Rev.Code §§ 3505.181(C)(2), 181(E)(1). Such an act would be an irrational and futile exercise by the voter, because, as required by Ohio Rev.Code § 3505.181(C)(1), the poll worker must first inform him that if he insists on voting in the wrong precinct, his ballot will not be counted.
Besides directing voters to the correct precinct, poll workers also have specific duties for ensuring that provisional ballots *771 are cast properly. On election day, if an individual is required to cast a provisional ballot, the poll worker must first affirm that the individual has executed the provisional ballot affirmation statement before transmitting the ballot, along with “the voter information contained in the written affirmation executed by the individual,” for evaluation of its eligibility. Ohio Rev.Code §§ 3505.181(B)(2)—(3), 3505.182. If the individual declines to execute such an affirmation, the poll worker must include “the individual’s name [or other information] ... in a written affirmation in order for the provisional ballot to be eligible to be counted.” State ex rel. Skaggs v. Brunner, 120 Ohio St.3d 506, 900 N.E.2d 982, 990 (2008) (“Skaggs II ”).15

15

As stated in Skaggs II by the Ohio Supreme Court:

[P]ursuant to R.C. 3505.182, if the individual

declines to execute the affirmation, an appropriate

local election official shall comply with R.C.

3505.181(B)(6), which states that the appropriate

local election official shall record the individual’s

name and include that information with the

transmission of the ballot under § 3505.181(B)(3).

Finally, an election official at the polling place

shall transmit the individual’s name if the

individual declines to execute such an affirmation

to an appropriate local election official for

verification, and the official receiving the

individual’s name must then verify whether the

individual is eligible to vote before his or her vote

will be counted. § 3505.181(B)(3) and (4).

Id.

If the poll worker fails to ensure the provisional ballot envelope is transmitted with the required voter name, signature, or executed affirmation, the ballot may be disqualified. The Ohio Supreme Court has held that Boards must reject provisional ballots if the voter’s
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Service Employees Intern. Union, Local 1 v. Husted, 887 F.Supp.2d 761 (2012)

affirmation and/or other identifying information on the envelope form is incomplete, even where it is otherwise determinable by the Board who the voter is and that the voter is lawfully registered. Id. at 992–93. For example, under Ohio law as interpreted by Skaggs II and Painter, Boards reject provisional ballots of eligible, registered voters if there is a printed name on the affirmation form but no signature; a signature on the affirmation but no printed name; or where the printed name or signature is in the wrong place on the envelope.16 See id. at 988–93.

16

The Secretary notes that the ballot envelope form has

been simplified in new directives issued this year.

Moreover, On January 4, 2012, Secretary Husted issued

Directive 2012–01, which expressly instructs boards of

elections that provisional ballots are not to be rejected

if the poll worker fails to fill out his or her portion of

the provisional ballot envelope.

The Parties’ dispute in these cases is over whether the United States Constitution allows Boards to reject the provisional ballots of lawfully-registered voters that are cast in the wrong precinct, or are cast with deficiencies in the ballots envelope or voter affirmation, due to poll-worker error.

III. MOTION TO INTERVENE
A. Procedural History
On July 27, 2012, the business day preceding the scheduled hearing on Plaintiffs’ Motion for Preliminary Injunction, a “bipartisan” group of qualified voters for the upcoming November 2012 election (the “Proposed Intervenors”), filed a Motion to Intervene in the action, under Fed.R.Civ.P. 24(b)’s standard for permissive intervention. Counsel for the Proposed Intervenors appeared at the plenary hearing, and the Court heard arguments on the Motion to Intervene on the record. For the reasons provided by the Court at the July 30, 2012 plenary hearing, and those described below, the Proposed Intervenors’ Motion is DENIED.

*772 B. Law and Analysis

[1] [2] Under Rule 24(b), “[o]n timely motion, the court may permit anyone to intervene who ... has a claim or defense that shares with the main action a common question of law or fact.” Fed.R.Civ.P. 24(b)(1)(B). Whether an applicant will be permitted to intervene under Rule 24(b) lies within the sound discretion of the trial court. Coal. to Defend Affirmative Action v. Granholm, 501 F.3d 775, 784 (6th Cir.2007) (“The denial of permissive intervention should be reversed only for clear abuse of discretion [.]”) (internal quotation marks and citations omitted). The Sixth Circuit has held that “[t]he timeliness of a motion to intervene is a threshold issue.” Blount–Hill v. Zelman, 636 F.3d 278, 284 (6th Cir.2011) (affirming that where the “proposed Interveners’ application was untimely—and would thus cause undue delay and prejudice to the existing parties as discussed above—the district court did not abuse its discretion in denying their application for permissive intervention”).
[3] First, the Proposed Intervenors’ motion to intervene is untimely, coming after briefing had concluded on the Motion for Preliminary Injunction, and just one business day before the hearing on that motion. Allowing the applicants’ intervention will prejudice the existing parties and “will inhibit, not promote, a prompt resolution,” which is of particular concern in this election case. See Granholm, 501 F.3d at 784 (internal quotation marks omitted). There is no excuse for the Proposed Intervenors’ untimeliness, as their concerns regarding voter dilution have been ripe at least since the Complaint was filed in SEIU, and potentially since the time the Decree was entered into and the Boards began counting wrong-precinct ballots.
Second, the Court is assured that the interests of the Proposed Intervenors are adequately represented in this case by the Secretary, who has an official duty to represent the interests of all voters statewide. The Proposed Intervenors’ concern is the dilution of their voting rights resulting from counting out-of-precinct votes.17 The Secretary’s arguments in opposition to the Plaintiffs’ Motion for Preliminary Injunction address this precise concern of “split-precinct” voter dilution, discussed, infra Sections IV.D.1(a), IV.D.3. The Proposed Intervenors’ concerns are not “unique” to them. Counsel for the Secretary represented to the Court at the plenary hearing that the Secretary is defending the interests of all split-precinct voters, including the Proposed Intervenors.18 The Court finds that there is no substantive difference between the position taken by the Proposed Intervenors and that taken by the Secretary on this issue.
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Service Employees Intern. Union, Local 1 v. Husted, 887 F.Supp.2d 761 (2012)

17

See Motion to Intervene, at 3.

18

Transcript of Oral Proceedings, July 30, 2012,

12–cv–562, 18:10–21.

Given the untimeliness of their request, and the Secretary’s adequate representation of the concerns raised by the Proposed Intervenors, the Court finds the movants’ interest in participating in the litigation is outweighed by the prejudice to the existing parties and the delay such participation would necessitate. The Motion to Intervene is DENIED.

20

See Dkt. 56–1, Plaintiffs’ Second Modified Proposed

Order Granting Motion for Preliminary Injunction, at 2.

The Parties have submitted their memoranda and documentary evidence in support of their positions, and oral argument was heard on the motion at the July 30, 2012 plenary hearing before this Court. The matter is therefore ripe for adjudication. The Court finds that the relevant factors weigh in favor of granting preliminary injunctive relief.

B. Legal Background

IV. MOTION FOR PRELIMINARY INJUNCTION

A. Summary
On June 22, 2012, the SEIU Plaintiffs filed their Complaint and Motion for Preliminary Injunction.19 Plaintiffs contend *773 that an injunction is necessary to prevent the irreparable and unconstitutional disqualification of thousands of lawfully-registered voters’ ballots in the upcoming November 2012 general election. Plaintiffs move this Court to require the Secretary to issue a Directive requiring that the Boards “may not reject any provisional ballots cast by lawfully-registered voters in the November 2012 general election” which are: (1) cast in the wrong precinct, unless the poll worker first affirms under penalty of perjury that he or she directed the voter to the correct precinct and informed the voter that his or her vote would not be counted if cast in the wrong precinct, but the voter refused to vote in the correct precinct; or (2) cast with a deficient ballot envelope form, but where “the County Board of Elections has otherwise been able to determine that the voter is a registered voter.”20

19

Plaintiffs have since amended their Complaint twice,

and no longer name any Defendant other than the

Secretary, in his capacity as chief elections officer for

the State of Ohio. See Ohio Rev.Code § 3501.05(A).

1. Ohio’s Precinct–Only Eligibility Requirement Complies with HAVA
In Sandusky, the Sixth Circuit held that HAVA’s passage did not disturb Ohio’s requirement that individuals must cast their ballots in the correct precinct to have their votes counted. See Sandusky, 387 F.3d at 577–78 (holding that “being eligible under State law to vote means eligible to vote in this specific election in this specific polling place”). The Sandusky Court addressed whether HAVA “require[d] that all states count votes ... cast by provisional ballot as legal votes, even if cast in a precinct in which the voter does not reside, so long as they are cast within a ‘jurisdiction’ ” in which the voter resides. Id. at 568. The Court concluded that “in Ohio, HAVA requires that a provisional ballot be issued only to voters affirming that they are eligible to vote and are registered to vote in the precinct in which they seek to cast a ballot.” Id. at 576 (adding, “[n]o one should be ‘turned away’ from the polls, but the ultimate legality of the vote cast provisionally is generally a matter of state law”).
The relevance of Sandusky to the Plaintiffs’ challenges to Ohio law, however, is limited. Sandusky was decided before Ohio instituted its amended Voter ID requirements in 2006. Although Sandusky establishes that Ohio’s precinct eligibility requirement complies with the federal provisional-ballot regime created under HAVA, that case did not address the constitutionality of the precinct eligibility requirement as applied to provisional ballots cast in the wrong precinct as a result of poll-worker error.21 While “[t]here is no reason to think that HAVA, which explicitly defers determination of whether ballots
11

Service Employees Intern. Union, Local 1 v. Husted, 887 F.Supp.2d 761 (2012)

are to be counted to the States, should be interpreted as imposing upon the States a federal requirement that out-of-precinct ballots be counted,” id. at 578, there is every reason to believe that the Constitution imposes such a requirement—at least when the provisional ballot is cast out-of-precinct because of an intervening poll-worker error.

21

Defendant Secretary admits that the Sandusky case, as

well as “the other cited decisions [in his Opposition,]

do not squarely address the precise issue raised by the

Plaintiffs in this case.” Secretary Opp. at 6.

*774 2. The Hunter Litigation
The Hunter Litigation raised a number of the same constitutional issues raised by the Plaintiffs here. That case involved the provisional-ballot recount procedures of the Hamilton County Board following the 2010 Hamilton County election for juvenile court judge. Like the Plaintiffs in this case, Tracie Hunter, plaintiff and candidate for the juvenile judge seat, sought a temporary restraining order and preliminary injunction in this Court, alleging federal due process and equal protection violations after the defendant Hamilton County Board’s initial ballot count placed her 23 votes behind opponent John Williams. This Court granted Hunter’s motion for preliminary injunction in part, and ordered the Board immediately to begin an investigation into whether poll-worker error contributed to the rejection of certain provisional ballots that were cast in the wrong precinct. See Hunter v. Hamilton Cnty. Bd. of Elections, No. 10–CV–820, 2010 WL 4878957 (S.D.Ohio, Nov. 22, 2010) (Dlott, C.J.).
Pursuant to the Court’s orders, the Secretary of State “issued several directives to facilitate the Board’s investigation,” and “[t]hose directives soon became the subject of [Williams’s] action for a writ of mandamus,” filed in the Ohio Supreme Court in Painter. Hunter II, 850 F.Supp.2d at 799–800. The Painter Court “concluded that [the Secretary’s] postelection instructions to the Board of Elections were not justified by Ohio law or this Court’s orders [in the Decree],” and made the following specific holdings of state law relevant to this case:
(1) “there is no exception to the statutory requirement that provisional ballots be cast in the voter’s correct

precinct,”; (2) “election officials err in presuming poll-worker error because in the absence of evidence to the contrary, [poll workers] ... will be presumed to have properly performed their duties in a regular and lawful manner and not to have acted illegally or unlawfully”; and (3) statistical analysis is not proper evidence of poll-worker error.
Hunter I, 635 F.3d at 239 (internal citations omitted) (stating, however, that “these state-law issues do not resolve the federal constitutional question in this case”).
Following Painter, Secretary Husted rescinded and replaced Brunner’s directives, and certified the results of the Hunter–Williams electoral race as of the date preceding the Board’s investigations into poll-worker error. See Hunter II, 850 F.Supp.2d at 799–800. Hunter sought an emergency order in this Court to enforce the preliminary injunction, which the Court granted and ordered the Board to count certain provisional ballots, “namely, those which the Board’s court-ordered investigation had revealed were cast in the wrong precinct due to poll-worker error.” Id. at 800. The Board appealed the district court’s order to the Sixth Circuit. A unanimous three-judge panel affirmed this Court’s preliminary injunction, and affirmed, in part, the court’s latter order granting the emergency motion to enforce the injunction. See Hunter I, 635 F.3d at 247, rehearing, en banc, denied, 2011 U.S.App. LEXIS 26342 (6th Cir., Mar. 29, 2011), application denied, ––– U.S. ––––, 131 S.Ct. 2149, 179 L.Ed.2d 933 (2011).
The Sixth Circuit first established its jurisdiction over the federal constitutional challenges to the actions taken by Ohio officials under the color of state law, and rejected defendants’ requests that it abstain from review. See id. at 232–34. The court then reviewed the district court’s determinations on the likelihood of success of the plaintiffs’ alleged Equal Protection and Due Process Clause claims under the Supreme Court’s “balancing approach applied *775 to constitutional challenges to election regulations.” Id. at 238 (citing Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 190, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008)).
The Sixth Circuit began by noting that, “[c]onstitutional concerns regarding the review of provisional ballots by local boards of elections are especially great” because “the review of provisional ballots occurs after the initial count of regular ballots is known,” and because of the “quasi adjudicatory-type action” required by the Board’s determination of eligibility and counting of provisional
12

Service Employees Intern. Union, Local 1 v. Husted, 887 F.Supp.2d 761 (2012)

ballots. Id. at 235 (“In contrast to more general administrative decisions, the cause for constitutional concern is much greater when the Board is exercising its discretion in areas relevant to the casting and counting of ballots, like evaluating evidence of poll-worker error.”) (internal quotations omitted).
On plaintiffs’ equal protection challenge to the Board’s inconsistent treatment of different groups of provisional ballots in its investigation for evidence of poll-worker error, the Sixth Circuit “agree[d] with the district court’s analysis,” and “conclude[d] that there is a strong likelihood of success on this equal-protection claim which weighs heavily in favor of the district court’s grant of a preliminary injunction.” Id. at 236–43. Although the Hunter Court’s fact-specific conclusions on the “as-applied” equal protection claims regarding the Hamilton Board’s treatment of the 849 provisional ballots are limited to its context, the Plaintiffs’ equal protection claims in this case require the Court to apply the same legal framework and analysis as applied by the Sixth Circuit in Hunter. See, infra Section IV.B.2.
The Plaintiffs’ substantive due process claim in this case is identical to the one asserted in Hunter. The Hunter plaintiffs “present[ed] the argument that failure to count provisional ballots cast in an incorrect precinct due to poll-worker error violates the Due Process Clause.” Id. at 243. On this general challenge, the Sixth Circuit stated that “we have substantial constitutional concerns regarding the invalidation of votes cast in the wrong precinct due solely to poll-worker error” and that “[a]rguably, these two provisions [Ohio Rev.Code §§ 3505.181(C) and (B)(4)(a)(ii) ] operate together in a manner that is fundamentally unfair to the voters of Ohio, in abrogation of the Fourteenth Amendment’s guarantee of due process of law.” Id. (concluding, “[t]o disenfranchise citizens whose only error was relying on poll-worker instructions appears to us to be fundamentally unfair”). The Court remanded the due process claim to be decided by the district court in the first instance, as the parties had not fully briefed the issue. See id. at 244.
On its review of the additional equitable factors influencing the district court’s preliminary injunction, the Sixth Circuit recognized that “both the state and the voting public have interests at stake.” Id. (“States are primarily responsible for regulating federal, state, and local elections ... and have a strong interest in their ability to enforce state election law requirements.... Members of the public, however, have a strong interest in exercising the fundamental political right to vote.”) (internal

citations omitted). The equitable factors in that case “support[ed] the district court’s grant of a preliminary injunction.” Id. at 245 (vacating only part of the district court’s subsequent emergency order because it “in effect, modif[ied] the November 22 order—without prior notice to Defendants or an opportunity for a hearing”). The Sixth Circuit remanded “to the district court in the first instance, applying the uniformity requirement of Bush v. Gore, to direct the Board how to proceed” regarding the remaining disputed ballots. Id. at 246.
*776 The Sixth Circuit in Hunter I recognized that counting wrong-precinct ballots could have statewide equal protection implications, see id. at 242, but ruled that “to the extent that Ohio election procedures present equal-protection and due-process problems in local contests in other counties, they may be resolved in separate litigation.” Id. (“The inconsistent treatment of provisional ballots across Ohio counties and the precise degree of inequality from county to county tolerated by the Constitution is not at issue here.”). That “hypothetical statewide challenge” foreseen by the Hunter I Court has now arrived in the form of the SEIU Plaintiff’s lawsuit.
In Hunter II, on remand to this Court, the Board moved to dismiss and for summary judgment, and the Court held a three-week bench trial. In its final merits decision on the plaintiffs’ equal protection claims, the Court ruled that “equal protection demanded that the Board consider right-location, wrong precinct [provisional] ballots on the same terms as ballots cast at the Board office.” Hunter II, 850 F.Supp.2d at 840 (also finding, however, “there was insufficient evidence presented at the permanent injunction hearing for the Court to conclude that poll-worker error was the reason certain voters did not complete the affirmation statement on the provisional ballot envelope”).
The Court was unable to make a final ruling on the plaintiffs’ claim that the Board’s failure to count the wrong-precinct ballots due to poll-worker error violated the Due Process Clause because the plaintiffs had not provided notice for such challenges to the Ohio Attorney General’s office as required by Fed.R.Civ.P. 5.1(a). Despite lacking “jurisdiction to order a remedy,” the Court concluded, based on the full record before it, that Ohio Rev.Code § 3505.181(C)(1)—delegating to poll workers the duty to direct voters to the correct precinct—and § (B)(4)(a)(ii)—providing that provisional ballots cast in the wrong precinct shall not be counted under any circumstance—violate the Due Process Clause of the Fourteenth Amendment, at least “where evidence
13

Service Employees Intern. Union, Local 1 v. Husted, 887 F.Supp.2d 761 (2012)

of poll-worker error exist.” See id. at 843, 846–47.
Because the Hunter Court lacked jurisdiction to issue a final ruling on the constitutionality of Ohio’s provisional ballot laws, Painter’s requirement that the Boards disqualify wrong-precinct provisional ballots cast due to poll-worker error, unless protected by the Decree, remains the law of the state. The Plaintiffs in these cases bring their current challenges to enjoin this provision of Ohio law.
C. Preliminary Injunction Standard of Review
The Plaintiffs’ request to enjoin the Secretary from enforcing certain provisions of Ohio law in the upcoming November 2012 election invokes the four-factor balancing test for determining whether an injunction is appropriate under Fed.R.Civ.P. 65. The Court must weigh the following factors:
(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by the issuance of the injunction.
Hunter I, 635 F.3d at 233.
[4] These four factors “guide the discretion of the district court [;]” however, “they do not establish a rigid and comprehensive test,” Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 102 (6th Cir.1982). Whether the combination of the factors weighs in favor of issuing injunctive relief in a particular case is left to the discretion of the district court. See *777 Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir.2000); see also Purcell v. Gonzalez, 549 U.S. 1, 4–5, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006) (in reviewing an application to preliminarily enjoin operation of Arizona’s voter identification procedures, the Supreme Court recognized courts’ need to “weigh, in addition to the harms attendant upon issuance or nonissuance of an injunction, considerations specific to election cases additional exigencies,” and stated these complex determinations

required “deference to the discretion of the District Court”).
The Secretary argues that, to meet their burden for obtaining a preliminary injunction, Plaintiffs must “establish [their] case” by “clear and convincing evidence.” (Secretary Opp., Dkt. 28, at 10) (relying on Damon’s Rests., Inc. v. Eileen K Inc., 461 F.Supp.2d 607, 621 (S.D.Ohio 2006)). While the Sixth Circuit has stated that “the proof required for the plaintiff to obtain a preliminary injunction is much more stringent than the proof required to survive a summary judgment motion,” Leary, 228 F.3d at 739, it is important that Defendants do not misunderstand the nature of a court’s balancing exercise for weighing the merits of a preliminary injunction request. The Sixth Circuit has held that “a party is not required to prove his case in full at a preliminary injunction hearing and the findings of fact and conclusions of law made by a court granting the preliminary injunction are not binding at trial on the merits.” Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 542 (6th Cir.2007) (citations omitted).
[5] A plaintiff has “the burden of establishing a clear case of irreparable injury and of convincing the Court that the balance of injury favor [s] the granting of the injunction.” Garlock, Inc. v. United Seal, Inc., 404 F.2d 256, 257 (6th Cir.1968). In the election law context, “[t]hese [four] factors are not prerequisites that must be met, but are interrelated considerations that must be balanced together,” as opposed to each one imposing a distinct evidentiary burden on the Plaintiffs. Northeast Ohio Coalition for the Homeless v. Blackwell, 467 F.3d 999, 1009 (6th Cir.2006) (stating, “[f]or example, the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movants will suffer absent the stay”).22

22

In any event, the Secretary does not dispute that the

prospective injury to Plaintiffs in this case—the

complete denial of an individual’s right to vote—is

irreparable. See, e.g., Miller v. Blackwell, 348

F.Supp.2d 916, 922 (S.D.Ohio 2004).

D. Law and Analysis [6] Plaintiffs bring their constitutional claims under 42
14

Service Employees Intern. Union, Local 1 v. Husted, 887 F.Supp.2d 761 (2012)

U.S.C. § 1983. A claim under 42 U.S.C. § 1983 has two elements: (1) the defendant must be acting under the color of state law; and (2) the offending conduct must deprive the plaintiff of rights secured by federal law. See League of Women Voters, 548 F.3d at 475. There is no dispute that the Secretary acts under the color of state law when enforcing Ohio’s election laws. The dispute here is over whether his actions and/or directives deprive Plaintiffs’ members of their constitutional rights.
1. Likelihood of Success on the Merits
As the Supreme Court has recognized, “[e]specially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.” Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); see also *778 Harper v. Va. Bd. of Elections, 383 U.S. 663, 670, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) (stating that restrictions on fundamental rights must be “closely scrutinized and carefully confined”).
Recent experience proves that our elections are decided, all too often, by improbably slim margins—not just in local races, see e.g., Hunter I, 635 F.3d at 222, but even for the highest national offices. See, e.g., Bush v. Gore, 531 U.S. 98, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000). Any potential threat to the integrity of the franchise, no matter how small, must therefore be treated with the utmost seriousness. The Supreme Court has expressed its confidence that “the possibility that qualified voters might be turned away from the polls would caution any district judge to give careful consideration to the plaintiffs’ challenges.” Purcell, 127 S.Ct. at 7. This Court, most assuredly, will not allow the integrity of the franchise to be sullied.
a. Equal Protection
Plaintiffs bring both facial and “as-applied” equal protection challenges to Ohio’s provisional ballot-counting laws. First, Plaintiffs claim that the application of Ohio Rev.Code § 3505.183(B)(4) to disqualify provisional ballots of lawfully-registered voters given the wrong-precinct ballot by poll workers or whose

ballots contain technical errors, imposes a “severe burden” on the right to vote that is not supported by any compelling or legitimate state interest. Second, Plaintiffs claim that in light of the Decree, Ohio’s law arbitrarily treats provisional ballots disparately based on the type of identification provided by the voter, in violation of equal protection. Third, Plaintiffs claim that the evidence shows that Ohio’s system for processing provisional ballots subjects provisional voters to significantly differing rates of poll-worker error based on the precinct or county in which they reside, resulting in arbitrary and unequal treatment that has a disproportionate effect on urban voters.
The Secretary maintains that the incidental burdens imposed by Ohio law’s disqualification of all wrong-precinct ballots do not rise to violations of equal protection, and do not constitute “severe burdens” on the right to vote. The Secretary argues that the precinct rule is a reasonable, nondiscriminatory restriction that applies uniformly to all voters, and as such requires only a rational basis. Under this rational basis review, the Secretary contends that the rule is permissible and within the State’s prerogative of running fair and efficient elections. The Secretary claims that Plaintiffs’ evidence fails to provide reliable information about poll-worker error and does not establish that wrong-precinct ballot rejections undermine the integrity of the election. Further, the Secretary refutes Plaintiffs’ evidence of a disparate impact on the rates of disqualified ballots in urban counties.
This Court analyzes Plaintiffs’ claims under the same standards developed by the Supreme Court for equal protection challenges to state election laws, and applied by the Sixth Circuit in Hunter. The Supreme Court most recently held in Crawford v. Marion County Election Board, that “a court evaluating a constitutional challenge to an election regulation [must] weigh the asserted injury to the right to vote against the ‘precise interests put forward by the State as justifications for the burden imposed by its rule.’ ” 553 U.S. 181, 190, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008) (quoting Anderson v. Celebrezze, 460 U.S. 780, 789, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983)). A “severe” restriction on the right to vote can only be “justified by a narrowly drawn state interest of compelling importance,” id., whereas “when a state election law provision imposes only reasonable, nondiscriminatory restrictions” on constitutional rights, “ ‘the State’s important regulatory interests are generally sufficient to justify’ the restrictions.” *779 Burdick v. Takushi, 504 U.S. 428, 434, 112 S.Ct. 2059, 119 L.Ed.2d
15

Service Employees Intern. Union, Local 1 v. Husted, 887 F.Supp.2d 761 (2012)

245 (1992) (quoting Anderson, supra, at n. 9).
[7] [8] There is generally no “litmus test for measuring the severity of a burden that a state law imposes on a political party, an individual voter, or a discrete class of voters,” Crawford, 553 U.S. at 191, 128 S.Ct. 1610, but the Court concluded in Crawford that “even rational restrictions on the right to vote are invidious if they are unrelated to voter qualifications,” warranting stricter scrutiny. Id. at 189, 128 S.Ct. 1610 (relying on Harper v. Virginia Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) (involving a poll tax)). Any burden a state law places on the right to vote, no matter how “slight that burden may appear, as Harper demonstrates, it must be justified by relevant and legitimate state interests ‘sufficiently weighty to justify the limitation.’ ” Crawford, 553 U.S. at 191, 128 S.Ct. 1610 (quoting Norman v. Reed, 502 U.S. 279, 288–89, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992)).
[9] [10] In addition, the Equal Protection Clause protects a citizen’s right to vote from “arbitrary and disparate treatment.” See Hunter I, 635 F.3d at 233 n. 13 (citations omitted). Each qualified voter in the State has an individual fundamental constitutional right to vote on equal terms with every other. See Bush v. Gore, 531 U.S. 98, 104–05, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000) (“The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.”).
For each of Plaintiffs’ claims, “after identifying the burden” imposed by the provisions of Ohio law on the “discrete class of voters,” the Court “must identify and evaluate the interests put forward by the State as justifications for the burden imposed by its rule, and then make the hard judgment” of whether the Secretary has advanced “relevant and legitimate state interests [that are] ‘sufficiently weighty to justify the limitation.’ ” Crawford, 553 U.S. at 189–91, 128 S.Ct. 1610 (additional citations omitted).
i. First Equal Protection Claim (Wrong–Precinct Ballot Prohibition)
[11] Plaintiffs’ chief claim for relief alleges that Ohio

Rev.Code § 3505.183(B)(4)(a)(ii) “severely” burdens the right to vote by mandating the rejection of lawfully-registered voters’ provisional ballots when the poll worker errs by providing the voter with a ballot for the wrong precinct. (See SAC ¶ 79.) Plaintiffs argue the State has provided no legitimate interest, let alone a compelling interest, to justify the law’s arbitrary disenfranchisement. The Secretary claims that the restrictions imposed by Ohio’s provisional ballot laws are not “severe,” and justifies the strict prohibition on all wrong-precinct ballots as “a ‘reasonable, nondiscriminatory restriction’ that is necessary for the efficient and fair conduct of the election.”23

23

Secretary Opp. at 13.

(a) Identifying the burden imposed by the Ohio law
Much of the factual basis upon which the Court relies for its findings is uncontested, or has already been established by this Court or the courts in Hunter. Additionally, Plaintiffs have submitted a substantial amount of statewide ballot counting and rejection data, statistical reports, and documentary evidence, sufficient to establish a strong likelihood that in the past few statewide *780 elections poll-worker error has resulted in the disqualification of hundreds—if not thousands—of wrong-precinct provisional ballots cast by otherwise lawfully-registered voters.
That poll workers err—and will continue to err in 2012—by providing qualified voters with wrong-precinct ballots is not a contested matter. The Secretary does not dispute the factual reality that in each of the recent statewide elections, registered voters arriving at the correct polling place have had their provisional ballots disqualified for being cast in the wrong precinct.24 According to the data gathered from the county boards of elections pursuant to the Secretary’s directives,25 in the most recent (non-Presidential) general election in 2011 a total of 3,380 wrong-precinct provisional ballots were given by poll workers to Ohio voters who arrived at their correct polling places.26 Of this group of wrong-precinct provisional ballots, 1,826 were summarily disqualified as required under Ohio Rev.Code § 3505.183(B)(4)(a)(ii) and another 1,554 were counted only as a result of the NEOCH Decree’s requirements.27 While the number and
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Service Employees Intern. Union, Local 1 v. Husted, 887 F.Supp.2d 761 (2012)

frequency of wrong-precinct ballot disqualifications vary county to county, the problem as a whole is systemic and statewide.28

24

See infra note 42.

25

See “Absentee and Provisional Ballot Information,”

accessible

at

http://www.sos.state.oh.us/SOS/elections/Research/elec

tResultsMain/2011

results/absenteeandprovisional.aspx.

26

Kimball Report, at 23 (Table 15); Declaration of

Jusztina Traum, Ex. DD, Dkt. 24, ¶ 33.

27

The Secretary did not begin requiring Boards to

separately report the number of wrong-precinct/correct

location, and wrong-precinct/wrong-location

provisional ballots until the 2011 general election, see

Kimball Report, at 22.

28

In the last presidential election in 2008, nearly every

Ohio County reported at least one instance of rejecting

a provisional ballot cast in the wrong precinct. Kimball

Report, Table 13. In 2010, a non-presidential year,

slightly fewer counties—but still the great

majority—reported rejections of wrong-precinct

provisional ballots. Id., Table 14. In 2011, an

“odd-year” and non-presidential election, where we

have even more isolated rejection data from the Boards,

the majority of counties still reported rejections

specifically of wrong precinct/correct polling place

provisional ballots. Id., Table 15. That

wrong-precinct/correct polling place rejections

occurred in fewer counties in 2011 is expected, as a

many counties have only a few multi-precinct polling

places, which are the only locations in which the

wrong-precinct/correct location type of rejection can

occur. See Theye Decl., Exh. A.

There is reason to believe that the number of wrong-precinct ballots will be even higher in the upcoming November 2012 election, due to the inevitable increase in voter turnout for every presidential election compared to the 2011 “odd-year” election.29 There is, then, a high statistical probability that in the upcoming election

thousands of lawfully-registered voters will arrive at the correct polling place only to receive a provisional ballot from the poll worker for the wrong precinct. Under Painter, those ballots will be rejected in the same manner as in the past—that is, unless the law is enjoined such that all provisional ballots are protected from disqualification due to poll-worker error, not just the ones covered under the Decree.

29

See Kimball Decl. Ex. B at 2–4 (showing that the rate

of provisional voting in high-turnout Presidential

election years increases).

The Secretary contends that the evidence suggests the problem of wrong-precinct provisional ballot rejection is “improving,” relying on the statistics showing that the percentage of total rejected provisional ballots statewide declined from 2008 to 2010.30 Plaintiffs effectively refute any *781 demonstrable improvement between 2008 and 2010, however, through the more relevant statistics showing the rejected wrong-precinct provisional ballots at issue in this case, as a percentage of total rejected provisional ballots, actually increased from 2008 to 2010. The number of wrong-precinct provisional ballots statewide (14,355) were 36% of the 39,989 total rejected provisional ballots in 2008, compared with 45% (5,309) of the 11,775 total rejected provisional ballots statewide in 2010.31 Moreover, the obvious explanation for a decrease in total rejected provisional ballots after 2008 is the implementation of the Decree’s orders, which beginning with the 2010 statewide election significantly reduced wrong-precinct disqualifications due to poll-worker error.32 For the remaining rejected wrong-precinct ballots, no improvement has been demonstrated.

30

Secretary Opp. at 9.

31

See Kimball Report, Table 13; Tables 3, 10; and Tables

4, 11, 14, respectively.

32

Id. Ex. B at 23 (Table 15); Traum Decl., Ex. DD.

At oral argument, counsel for the Secretary made open-ended assertions of “gaps in the Plaintiffs’
17

Service Employees Intern. Union, Local 1 v. Husted, 887 F.Supp.2d 761 (2012)

evidence” of poll-worker error;33 however, the Secretary does not refute the accuracy of any particular set of data regarding the provisional ballot rejection rates obtained from the Boards.34 Instead, the Secretary contends that the Plaintiffs’ evidence of the poll-worker error problem is “stale,” and cannot be relied upon to predict similar rates of wrong-precinct rejections in the upcoming 2012 election. Specifically, the Secretary points to the recent directives issued in the past year which: (1) require that all poll workers be trained (or retrained) within 60 days before the November 2012 election in directing wrong-precinct voters to the right place35 and proper completion of the provisional ballot requirements;36 (2) require the simplification of the provisional ballot envelope and affirmation form;37 and (3) detail the process of how provisional ballots must be processed under Ohio law and the Decree.38

33

Transcript of Oral Proceedings, July 30, 2012,

12–cv–562, 52:1–8.

34

To do so would be somewhat hypocritical, as much of

the most reliable and specific data, such as the 2011

county-by-county breakdowns of wrong-precinct

rejections by type, for example, were gathered pursuant

to the Secretary’s directives, and are posted on the

Secretary’s official website.

35

See Directive 2012–15.

36

Id.

37

See Ohio SOS Form 12–B.

38

See Directive 2012–01.

The State’s efforts in poll-worker training and simplifying the provisional voting procedures and ballot forms are well-taken by this Court, but these measures alone do not address the basic problem demonstrated by the Plaintiffs. The Secretary issued numerous training directives regarding provisional ballots in prior years, too, without

any apparent improvement in wrong-precinct poll-worker error.39 After the data are compiled from the upcoming election, the Court’s final review of the full record may reveal an improvement in the numbers of wrong-precinct provisional ballots. At this stage, however, Plaintiffs’ evidence is more than sufficient to establish a defined class of provisional voters likely to be disenfranchised because of poll-worker error in the manner alleged by Plaintiffs. See Certified Restoration, 511 F.3d at 542 (stating, “a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial *782 on the merits”) (internal quotation marks omitted).

39

See supra, note 31.

The evidence further confirms that, of the thousands of rejected wrong-precinct/correct location provisional ballots, the vast majority will be disqualified as a result of poll-worker error.40 If the poll worker follows his statutory mandate, a prospective voter may only be permitted to cast a wrong-precinct provisional ballot after having been directed to the correct precinct, and informed by the poll worker that casting the wrong-precinct ballot will result in her vote not being counted. See Ohio Rev.Code § 3505.181(C)(1)-(2). It is common sense that no rational voter who arrives at the correct polling place would ever refuse to cast a provisional ballot in the correct precinct, and that logical conclusion is borne out by the evidence. No party has identified a single example, from the past four years’ elections, of a wrong-precinct provisional ballot being cast because the voter refused to vote in the correct precinct. Every documented instance in the record of a correct location/wrong-precinct ballot being disqualified was the result of the poll-worker failing in his or her statutory duty to “ensure that voters ... are given the correct ballot and vote in the correct precinct.” Hunter I, 635 F.3d at 243.

40

Recall, the State has defined “poll-worker error” as

“ ‘when a poll worker acts contrary to or fails to

comply with federal or Ohio law or directive issued by

the Secretary of State.’ ” Painter, 941 N.E.2d at 789

(quoting Directive 2010–79).

Counsel for the Secretary insisted at oral argument that poll workers cannot be blamed for every wrong-precinct provisional ballot that is cast, and asserted that other explanations exist for why a voter might receive and cast
18

Service Employees Intern. Union, Local 1 v. Husted, 887 F.Supp.2d 761 (2012)

a wrong-precinct ballot.41 Counsel for the Secretary admitted, however, that at this stage in the litigation, his proffered alternative reasons to explain wrong-precinct provisional ballots are merely speculative.42 See also Hunter I, 635 F.3d at 237 (similarly opining, “there may be more explanations for why the voter might have erred at the multiple-precinct polling locations than at the Board office, requiring a greater inference to conclude that the miscast ballot was a result of poll-worker error, but Defendants have not presented any persuasive rationales”).

41

THE COURT: Do we have any way of knowing what

percentage of instances we have where the poll

worker—where the voter transposed a number in the

address, or where the poll worker didn’t understand

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

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

that.

Transcript of Oral Proceedings, July 30, 2012,

12–cv–562, 50:12–25.

42

THE COURT: We have evidence that substantiates

poll-worker error; is that correct?

MR. EPSTEIN: There’s no question, Your Honor,

that poll-worker error does occur, that poll

workers sometimes give the wrong ballots,

misdirect the voters.

THE COURT: Do we have statistical evidence

that bears out the other examples that you’ve just

given me?

MR. EPSTEIN: Unfortunately, as I said, the nature

of what I just put forward would not produce

evidence. But what I would suggest is that there is

a gap in the evidence that the plaintiffs have

presented because they show wrong-precinct

rejection rates in the hundreds, and then when you

look at their specific log books from the poll

workers, they will say, Oh, I gave out three

wrong-precinct ballots, I gave out one. So all of

these admissions of poll-worker error that they’ve

identified clearly don’t account for the scope of

the problem. Something else is going on that may

not be poll-worker error.

Transcript of Oral Proceedings, July 30, 2012,

12–cv–562, 51:12–52:8.

The Sixth Circuit has already affirmed that when a lawfully-registered voter casts a wrong-precinct provisional ballot that was mistakenly given to him by the poll *783 worker, Ohio law disqualifies that ballot “due to poll-worker error.” See id., 635 F.3d at 242–44. Based on

the record evidence provided thus far, the Court must find that Plaintiffs have established a strong likelihood that thousands of lawfully-registered voters will be completely deprived of their right to vote under Ohio Rev.Code § 3505.183(B)(4)(a)(ii) in the upcoming election because of pollworker error. Although states have broad authority to impose reasonable restrictions in election laws, see Anderson, 460 U.S. at 788, 103 S.Ct. 1564, such a burden on the right to vote must be justified by sufficient interests to pass constitutional muster. See Crawford, 553 U.S. at 190–91, 128 S.Ct. 1610.
The Secretary does not dispute that Ohio’s precinct eligibility requirement imposes some restrictions on the right to vote, including by disqualifying wrong precinct provisional ballots. Rather, the Secretary’s primary position in defense of Ohio’s prohibition on counting wrong-precinct ballots cast due to poll-worker error is that its restriction on voters’ rights is not a severe burden, and is justified by the State’s interests in running elections fairly and efficiently.
Relying primarily on the Supreme Court’s decision in Burdick for support, the Secretary argues that strict scrutiny review does not apply to Ohio’s prohibition on wrong-precinct ballots, as Plaintiffs contend it should, simply because a small number of voters’ provisional ballots will be disqualified as a result. See Burdick, 504 U.S. at 432–34, 112 S.Ct. 2059 (stating, “to subject every voting regulation to strict scrutiny and to require that the regulation be narrowly tailored to advance a compelling state interest ... would tie the hands of States seeking to ensure that elections are operated equitably and efficiently”). While the Secretary admits that no regulation is perfect, he claims the burdens imposed by the wrong-precinct ballot prohibition are “reasonable, nondiscriminatory” constraints “necessary for the efficient and fair conduct of the election.”43

43

Secretary Opp. at 13.

[12] The Secretary is correct that the Court will not require an election regulation to satisfy strict scrutiny simply because violating it results in the loss of the right to vote. See id. The Secretary is incorrect, however, in claiming that the severity of the burden imposed by the restriction challenged in this case should be viewed in the aggregate.44 In an equal protection challenge to an election law, courts must evaluate the reasonableness of the law’s particular burden on the individuals whose voting rights
19

Service Employees Intern. Union, Local 1 v. Husted, 887 F.Supp.2d 761 (2012)

are allegedly violated by it. Where, as here, a discrete class of prospective voters challenges a regulation’s restriction on their right to vote, the burden must be evaluated according to its impact upon those plaintiffs, not the entire electorate.

44

See Secretary Opp. at 12; see also infra, note 47.

The Supreme Court in Burdick, consistent with its approach from Anderson, mandates that:
[A] court considering a challenge to a state election law must weigh “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate ” against “the precise interests put forward by the State as justifications for the burden imposed by its rule,” taking into consideration “the extent to which those interests make it necessary to burden the plaintiff’s rights.” Burdick, 504 U.S. at 434, 112 S.Ct. 2059 (quoting *784 Anderson, 460 U.S. at 789, 103 S.Ct. 1564) (emphasis added). In determining whether the disputed Ohio law meets the requirements of the Constitution, therefore, “the burden imposed by its rule” prohibiting wrong-precinct ballots must be weighed based on the “character and magnitude of the asserted injury” to the rights that Plaintiffs seek to vindicate. Id.
Plaintiffs’ constitutional challenge to “Ohio’s strict provisional ballot law requiring disqualification of ‘wrong precinct’ ballots without exception,” only seeks to vindicate the rights of “registered Ohio voters” whose ballots are “rejected for reasons attributable to poll-worker error.”45 Plaintiffs have been quite careful expressly to limit the contours of their claims, and the corresponding requested relief, to make it clear that they do not challenge Ohio’s precinct eligibility requirement as a whole, but merely its application to disqualify ballots of registered voters who are misdirected by poll workers.46

45

SAC, ¶ 79.

46

Transcript of Oral Proceedings, July 30, 2012,

12–cv–562, at 69:16–19; see also Plaintiffs’ Reply at 2.

As did the petitioners in Crawford, Plaintiffs “urge [the

Court] to ask whether the State’s interests justify the burden imposed on ... a narrow class of voters.” Id. at 200, 128 S.Ct. 1610. The voters’ constitutional challenge in Crawford was ultimately unsuccessful, however, “[g]iven the fact that petitioners ha[d] advanced a broad attack on the constitutionality of SEA 483, seeking relief that would invalidate the statute in all its applications.” Id. (emphasis added). Therein lies the critical distinction between this case and Crawford, which renders the specific failure of the Ohio law’s prohibition here to make an exception for poll-worker error far more susceptible to this Court’s intervention. Plaintiffs do not challenge Ohio Rev.Code § 3505.183(B)(4)(a)(ii)’s precinct eligibility requirement “in all its applications”—only its provision disqualifying wrong-precinct ballots cast due to poll-worker error.
The Secretary insists that the burden must be weighed according to its aggregate impact on the total electorate,47 reasoning that the “consequence of running afoul of even the most reasonable restriction, such as registration deadlines, is a denial of the ability to vote.”48 But as a factual matter, it is simply not true that the consequence of every state election restriction is complete denial of the ability to vote, as it is with the Ohio law at issue here. In Crawford, for example, “[t]he severity of that burden [was] mitigated by the fact that, if eligible, voters without photo identification may cast provisional ballots that will ultimately be counted.” 553 U.S. at 199, 128 S.Ct. 1610.

47

As expressed by counsel for the Secretary at oral

argument:

MR EPSTEIN: Your question originally had to do

with the standard of review to apply. I would

emphasize that Crawford and the other cases,

when they talk about severe burden, they’re not

talking about the burden on me as the voter whose

ballot was rejected. Under that standard, every

election regulation would be subject to strict

scrutiny. They’re talking about the severe burden

upon voters in general, the impact upon the

election itself. And by any metric, what we’re

talking about here is very small. This is also, by

the way, the problem with their substantive due

process claim.

Transcript of Oral Proceedings, July 30, 2012,

12–cv–562, at 52:6–14.

48

Secretary Opp. at 12 (citing Burdick, 504 U.S. at 433,

112 S.Ct. 2059).

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Service Employees Intern. Union, Local 1 v. Husted, 887 F.Supp.2d 761 (2012)

More fatal to the Secretary’s aggregate view of the burden is that it does not correspond to the specific restriction challenged by the Plaintiffs here. It is only *785 appropriate for the Court to weigh the scope of the burden corresponding to the particular legal restriction at issue in this case, not the law as a whole. Like the Voter ID law challenged in Crawford, where, “[f]or most voters who need them, the inconvenience of making a trip to the BMV, gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting,” the Ohio precinct requirement does not pose an unreasonable burden on most voters. As in Crawford, “[b]oth evidence in the record and facts of which we may take judicial notice, however, indicate that a somewhat heavier burden may be placed on a limited number of persons.” Id. (concluding, “[i]f we assume, as the evidence suggests, that some members of these classes were registered voters when SEA 483 was enacted, the new identification requirement may have imposed a special burden on their right to vote”).
It is the particular burden imposed by Ohio’s prohibition of wrong-precinct ballots on the rights of a “discrete class of prospective voters”—those who arrive at the correct polling place but are misdirected due to poll-worker error—against which the State’s asserted interests must be weighed. See id. at 191, 199, 128 S.Ct. 1610.49

49

In Crawford, the Supreme Court found that “on the

basis of the evidence in the record it is not possible to

quantify either the magnitude of the burden or the

portion of the burden imposed on [voters who cannot

afford or obtain a birth certificate and who must make a

second trip to the circuit court clerk’s office after

voting] that is fully justified.” Id. (reasoning that,

“[f]irst, the evidence in the record does not provide us

with the number of registered voters without photo

identification ... [and] [f]urther, the deposition evidence

presented in the District Court does not provide any

concrete evidence of the burden imposed on voters who

currently lack photo identification”).

Unlike in Crawford, this Court has been provided

with reliable statistics of the number of registered

voters disqualified for having wrong-precinct

provisional ballots. Furthermore, unlike the relatively

unclear degree of the burden imposed on the

prospective voters by the photo ID requirement in

Crawford, the Secretary concedes that

wrong-precinct ballots of registered voters who

arrive at the correct polling place have been and will

continue to be disqualified by the restriction

challenged here. See Secretary Opp. at 13. This Court, therefore, is able properly to “conclude that the statute imposes ‘excessively burdensome requirements’ on [a] class of voters.” Id. at 202, 128 S.Ct. 1610.

(b) Whether the restriction is justified by sufficient state interests
The burden Ohio’s wrong-precinct ballot prohibition imposes on “the plaintiff’s rights,”50 Burdick, supra (emphasis added), could hardly be any more severe. The Secretary is accurate in contending that this class of prospective voters represents a very small percentage of the total voters *786 in absolute terms.51 But for each of the potentially thousands of voters whose wrong-precinct ballots are disqualified under this provision of the election code due to poll-worker error, Ohio’s strict prohibition imposes a severe burden on their right to vote—i.e. summary, arbitrary, and irreversible rejection of their entire ballot without notice.52 See Hunter I, 635 F.3d at 243 (stating that this “state law penalizes the voter when a poll worker directs the voter to the wrong precinct, and the penalty, disenfranchisement, is a harsh one indeed”).

50

The “plaintiffs” in this case are the prospective

members of the Plaintiff labor unions and political

organizations who stand to be disenfranchised under

the disputed Ohio regulations due to poll-worker error.

See Sandusky, 387 F.3d at 574 (“The individual

participation of an organization’s members is not

normally necessary when an association seeks

prospective or injunctive relief for its members.”)

(citations omitted). While impossible to identify at this

time, as stated by the Sixth Circuit:

[Plaintiffs] have not identified specific voters who

will seek to vote at a polling place that will be

deemed wrong by election workers, but this is

understandable; by their nature, mistakes cannot

be specifically identified in advance. Thus, a voter

cannot know in advance that his or her name will

be dropped from the rolls, or listed in an incorrect

precinct, or listed correctly but subject to a human

error by an election worker who mistakenly

believes the voter is at the wrong polling place. It

is inevitable, however, that there will be such

mistakes.

Id.

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Service Employees Intern. Union, Local 1 v. Husted, 887 F.Supp.2d 761 (2012)

51

For example, Dr. Kimball’s Report illustrates that the

statewide rejection rate of provisional ballots for any

reason in 2010 varied from a maximum of 0.6% in

Cuyahoga County to lower numbers such as 0.02% in

Wayne County and 0.03% in Coshocton County as a

percentage of total ballots cast in the election. Kimball

Report, Table 11.

52

Unlike Crawford’s challenged Indiana photo ID

requirement, for example, where “[t]he severity of that

burden [wa]s, of course, mitigated by the fact that, if

eligible, voters without photo identification may cast

provisional ballots that will ultimately be counted,”

here the burden is upon provisional ballots; thus no

such mitigating factors exist to rectify the prospective

disenfranchisement of otherwise eligible voters.

The State can only justify imposing such a severe burden against counting these individuals’ ballots by supporting it with “precise,” “legitimate” interests that are “weighty” enough to supersede “the voters’ strong interest in exercising the fundamental political right to vote.” See Crawford, 553 U.S. at 190–91, 128 S.Ct. 1610; Hunter I, 635 F.3d at 243. The Secretary has failed to articulate any state interest or combination of interests “sufficiently strong to require us to reject [Plaintiffs’] attack on the statute,” Crawford, 553 U.S. at 204, 128 S.Ct. 1610. In fact, to the extent that the State has demonstrated any legitimate justifications at this stage for its blanket disqualification of wrong-precinct ballots of registered voters, they are largely obviated by Plaintiffs’ narrowly-tailored requested injunction, and, in any case, they do not outweigh the Plaintiffs’ and the public’s interests in counting ballots of lawfully-registered citizens “whose only error was relying on poll-worker instructions.” Hunter I, 635 F.3d at 243.
The “precise interests offered by the State as justifications for the burden imposed by its rule,” Crawford, 553 U.S. at 190, 128 S.Ct. 1610, are not precise at all in this case. After citing to decisions finding various state election laws reasonable,53 the Secretary merely asserts that the burden imposed by the regulation here is of the general category considered acceptable under Anderson.54 Even if the cases cited *787 by the Secretary were controlling, or contained analogous restrictions,55 the law requires considerably more from the State than unsupported citations to other examples of apparently reasonable election laws to prevail in “the hard judgment that our

adversary system demands” from the Court in these important challenges. Crawford, 553 U.S. at 190, 128 S.Ct. 1610.

53

See, e.g., Broyles v. Texas, 618 F.Supp.2d 661

(S.D.Tex.2009) (finding statute prohibiting nonresident

property owners from participating in municipal

election did not violate equal protection); ACORN v.

Bysiewicz, 413 F.Supp.2d 119 (D.Conn.2005)

(upholding Connecticut’s requirement that voters

register at least seven days before the general election);

Rosario v. Rockefeller, 410 U.S. 752, 93 S.Ct. 1245, 36

L.Ed.2d 1 (1973) (finding that New York’s eight-month

deadline for registering did not severely burden

constitutional rights); League of Women Voters of

Florida v. Browning, 575 F.Supp.2d 1298

(S.D.Fla.2008) (finding reasonable under the First

Amendment a regulation holding advocacy groups

responsible for turning in voter registrations late);

Coalition for Free & Open Elections v. McElderry, 48

F.3d 493 (10th Cir.1995) (banning write-in candidates

for president); Friedman v. Snipes, 345 F.Supp.2d 1356

(S.D.Fla.2004) (holding state’s deadline for returning

absentee ballots did not unconstitutionally

disenfranchise a class of voters); Clingman v. Beaver,

544 U.S. 581, 125 S.Ct. 2029, 161 L.Ed.2d 920 (2005)

(upholding Oklahoma’s semiclosed primary system).

54

See Secretary Opp. at 13 (arguing, “[i]n this case, the

prohibition on ‘wrong-precinct’ ballots is a ‘reasonable,

nondiscriminatory restriction’ that is necessary for the

efficient and fair conduct of the election”).

55

The burdens imposed by the restrictions in the cases

cited by the Secretary, to provide just one example,

lack the critical character of arbitrariness represented

by poll-worker error rejections, which is the gravamen

of the unjust nature of the restrictions alleged by

Plaintiffs, throughout.

The only other “interests” the Secretary submits on behalf of the State to justify the burden imposed by the strict wrong-precinct prohibition is the following list of general “advantages of the precinct system” excerpted from the Sixth Circuit’s decision in Sandusky:
(1) it [the precinct system] caps the number of voters attempting to vote in the same place on election day;
(2) it allows each precinct ballot to list all of the votes a
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Service Employees Intern. Union, Local 1 v. Husted, 887 F.Supp.2d 761 (2012)

citizen may cast for all pertinent federal, state, and local elections, referenda, initiatives, and levies;
(3) it allows each precinct ballot to list only those votes a citizen may cast, making ballots less confusing;
(4) it makes it easier for election officials to monitor votes and prevent election fraud; and
(5) it generally puts polling places in closer proximity to voter residences. (See Secretary Opp. at 13) (quoting Sandusky, 387 F.3d at 568–69).
The first, third, and fifth “advantages” listed in Sandusky are irrelevant to the election restriction challenged here. The State’s interests in: (1) capping the number of voters at a given location on election day; (3) making ballots less confusing for citizens; and (5) locating polling places in closer proximity to voters, are each legitimate ends met by the precinct system, but are not related to the law’s restriction against counting wrong-precinct provisional ballots.56 Hence, only the second and fourth of these Sandusky interests are even remotely relevant to justifying the burden imposed by the post-hoc disqualification of wrong-precinct provisional ballots cast by registered voters.

56

Refusing to count correct location/wrong-precinct

provisional ballots does not affect the number of voters

arriving at a given location, because by definition the

ballots at issue were cast at the correct designated

polling place. Nor does it affect how the state chooses

its polling locations. Finally, the restriction does have

the potential to make things any less confusing for

voters. Indeed, knowing that one’s provisional ballot

might be disqualified due to the poll worker’s mistake,

if anything, only makes the provisional ballot more

confusing to citizens.

The State’s second Sandusky interest, “allow[ing] each precinct ballot to list all of the votes a citizen may cast for all pertinent federal, state, and local elections ...,” if given a cursory analysis, may be served by the strict prohibition of wrong-precinct ballots. As discussed in greater detail in the Court’s analysis of the balancing of harms equitable factor, infra, prohibiting wrong-precinct ballots does prevent the potential for “split-precinct” vote dilution—i.e. votes being erroneously counted for precinct-specific electoral races for which the individual is not registered to vote, resulting in the dilution of the votes of the registered

voters from that precinct. In recognition of this potential problem, Plaintiffs’ requested relief is specifically tailored to require that only so-called “up-ballot” votes are to be counted on the eligible wrong-precinct ballots. This ensures that any votes cast in a precinct for which the voter is not registered will not be counted,57 thus practically eliminating *788 the “vote dilution” problem. Additionally, since 2010 the Decree has required the Boards to “re-make” provisional ballots where necessary, without any apparent adverse effect on the administration of the Ohio precinct system.

57

See Plaintiffs’ Second Modified Proposed Order, at 2

(requiring the Boards to count only “the votes cast on

the provisional ballot ... in all races and for all issues

for which the voter would have been eligible to vote if

he/she had cast the ballot in the correct precinct”).

The fourth Sandusky interest given by the Secretary, the need to monitor votes and prevent “voter fraud,” cannot possibly serve as even a “rational basis” for prohibiting identified, lawfully-registered voters’ ballots from being counted. The Ohio statute requires Boards to invalidate provisional ballots cast by individuals in the wrong precinct only after first determining that those voters are lawfully-registered voters. Ohio Rev.Code § 3505.183(B)(4)(a)(i)-(ii). Categorically, for the prospective voters seeking to vindicate their rights in this case, there can be no risk of “in-person voter impersonation at polling places,” Crawford, 553 U.S. at 195, 128 S.Ct. 1610, or any other form of voter fraud, that disqualifying their ballot could possibly prevent. The Board must by law verify their identity and that they are otherwise qualified to vote.
The State does have a legitimate “interest in orderly administration and accurate recordkeeping” in the election process, see id., which could conceivably fall under the stated interest in “monitoring” the election. Without any specific evidence showing how these interests justify disenfranchisement of registered provisional voters’ ballots, which must already be evaluated by the Board for eligibility after the election, see Ohio Rev.Code § 3505.183, it is very difficult for the Court to see how the interests of “orderly administration” or “accurate recordkeeping” is furthered by prohibiting these provisional ballots from being counted. The Court appreciates that depending on the how the system is ultimately adapted to protect against poll-worker error rejections, it could make the Boards’ existing
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Service Employees Intern. Union, Local 1 v. Husted, 887 F.Supp.2d 761 (2012)

post-election duties more difficult. Under the Decree, however, Boards are already tasked with determining whether poll-worker error caused the wrong-precinct ballot, and the Court doubts the State would dispute that some degree of additional time and resources is warranted when the alternative is the disenfranchisement of thousands of voters.
In sum, the Secretary’s reliance on the general advantages of Ohio’s precinct-based voting system, and the State’s ability to pass reasonable regulations in the interest of conducting fair and efficient elections, falls short of what is required to justify its inevitable disenfranchisement of thousands of qualified voters in the November 2012 election. The Sixth Circuit has affirmed that the Ohio prohibition on wrong-precinct ballots unjustly restricts qualified voters by failing to make exceptions for poll-worker errors, see Hunter I, 635 F.3d at 243, and the Plaintiffs have submitted reliable, uncontroverted evidence demonstrating that a discrete class of prospective voters will be severely burdened by this feature of the law in the upcoming election.
(c) The restriction fails review for invidiousness
[13] In addition to the foregoing “Anderson balancing” of the State’s justifications for the restriction against the plaintiffs’ rights, the Supreme Court has expressly preserved the prior rule from Harper, which prohibits States from placing restrictions on the right to vote that “invidiously discriminate” by virtue of being “unrelated to voter qualifications.” Id. (citing Harper, 383 U.S. at 666–67, 86 S.Ct. 1079 (deeming poll tax “invidious”); Carrington *789 v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965) (holding, “the Texas Constitution imposes an invidious discrimination” by its “presumption of nonresidence” of soldiers, as a class of voters)). This “stricter standard” applied to “invidious” restrictions is appropriate in the Court’s review of Ohio’s restriction on the rights of the prospective provisional voters in this case because Ohio’s prohibition on wrong-precinct ballots cast due to poll-worker error is “unrelated to voter qualifications,” Crawford, 553 U.S. at 189, 128 S.Ct. 1610.
The challenged election restriction disqualifies wrong-precinct ballots cast by individuals who, by law, the Board has already deemed are lawfully-registered to vote. Ohio Rev.Code § 3505.183(B)(3)(b). The law’s

requirement that these voters’ ballots be disqualified when they cast a wrong-precinct ballot due to poll-worker error is, by definition, unrelated to “voter qualifications,” because the voters have necessarily met the all the State’s requirements for eligibility. It is only through an error by the poll worker that the voter’s ballot is ineligible, and an error by the poll worker can hardly be said to be related to the “voter’s qualifications,” Crawford, 553 U.S. at 189, 128 S.Ct. 1610.
Again, Ohio’s precinct requirement, as a whole, is legitimate and relevant to the requirement that voters vote in their jurisdiction. The Plaintiffs sue on behalf of registered voters who arrive in the correct polling place, and only through an intervening error violate the precinct requirement. As a class, these voters have no deficiencies in their qualifications; thus, the State’s expansion of the wrong-precinct prohibition to them is an invidious restriction. This is not an archetypical case of an invidious restriction, such as poll taxes, which are facially “capricious.” Harper, 383 U.S. at 668, 86 S.Ct. 1079. Like poll taxes, however, any rational basis for rejecting wrong-precinct ballots of registered voters due to poll-worker error is equally unreasonable.58 And the Supreme Court in Carrington affirmed that a regulation may be invidious in its restriction on a particular class of voters. See Carrington, 380 U.S. at 93, 85 S.Ct. 775 (where the “State is dealing with a distinct class” of voters (servicemen) disenfranchised under its residency requirement). The restriction imposed by Ohio’s wrong-precinct ballot disqualification is unrelated to the prospective Plaintiffs’ voter qualifications and constitutes an “invidious” restriction prohibited under Harper, irrespective of whether it is rational from the State’s perspective.

58

This conclusion mirrors the Supreme Court’s reasoning

in Crawford, where even a “benign” regulation

nonetheless bordered on invidious in its restriction on

the class of voters. The Crawford Court reasoned:

The State’s requirements here, that people without

cars travel to a motor vehicle registry and that the

poor who fail to do that get to their county seats

within 10 days of every election, likewise translate

into unjustified economic burdens uncomfortably

close to the outright $1.50 fee we struck down 42

years ago [in Harper]. Like that fee, the onus of

the Indiana law is illegitimate just because it

correlates with no state interest so well as it does

with the object of deterring poorer residents from

exercising the franchise.

553 U.S. at 236–37, 128 S.Ct. 1610.

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Service Employees Intern. Union, Local 1 v. Husted, 887 F.Supp.2d 761 (2012)

Hence, the Plaintiffs are likely to prevail under either of these alternative tests. Under both Anderson interests balancing and Harper’s “invidiousness” standard, the State’s interests in administrative costs savings and avoiding “inefficiencies” furthered by the law’s blanket prohibition on counting wrong-precinct provisional ballots are neither compelling nor sufficiently weighty to justify the arbitrary denial of a significant number of prospective registered voters’ “most fundamental of rights.” *790 State ex rel. Skaggs v. Brunner, 588 F.Supp.2d 828, 834 (S.D.Ohio 2008); see also Carrington, 380 U.S. at 96, 85 S.Ct. 775 (“States may not casually deprive a class of individuals of the vote because of some remote administrative benefit to the State.”). Painter’s failure to allow an exception for wrong-precinct ballots cast due to poll-worker error, therefore, represents an unreasonable restriction on lawfully-registered voters’ right to vote. Like in Norman, “the State Supreme Court’s inhospitable reading of [the Ohio Revised Code] sweeps broader than necessary to advance electoral order and accordingly violates” the Equal Protection Clause. Norman, 502 U.S. at 290, 112 S.Ct. 698 (citing Anderson, 460 U.S. at 793–94, 103 S.Ct. 1564; Williams v. Rhodes, 393 U.S. 23, 30–34, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968)).
The Court accepts that mistakes by election officials are inevitable, and the State will never eradicate poll-worker error. As the Sixth Circuit held in Hunter I, however, the fact that poll workers will always make mistakes “is no answer to the equal-protection challenge because discriminatory treatment must be justifiable, see Crawford, 553 U.S. at 189–90, 128 S.Ct. 1610, and unanticipated inequality is especially arbitrary.” Hunter I, 635 F.3d at 238 n. 16 (emphasis in original). The Court finds that Plaintiffs have demonstrated a likelihood of success on their primary equal protection claim.
ii. Second Equal Protection Claim (Ballot Envelope Deficiencies)
[14] Plaintiffs’ second equal protection claim alleges that Ohio’s blanket disqualification of provisional ballots where the ballot envelope contains certain “technical deficiencies” imposes a similarly severe burden on the right to vote unjustified by any legitimate State interests.59 As with the voters disenfranchised due to wrong-precinct ballots, the Secretary disputes the severity of the burden imposed by Ohio’s disqualification of these ballots.

Further, the Secretary claims that the Plaintiffs’ concerns regarding this class of disqualified ballots have been addressed by the Secretary’s recent directives requiring, inter alia, that Boards may not reject provisional ballots where the poll worker’s information on the ballot envelope is incomplete.60

59

Specifically, Plaintiffs challenge the Ohio law

“requiring disqualification of ballots when the

provisional ballot envelope contains sufficient

information for the county to identify the

lawfully-registered voter but when that envelope is

missing or has a misplaced voter signature or printed

name, without exception, as set forth in Ohio Rev.Code

§ 3505.183(B)(4)(a)(iii), and in the Ohio Supreme

Court’s decisions of Painter and Skaggs.” SAC ¶ 82.

60

See Directive 2012–01 (Counting Provisional Ballots),

p. 4; Directive 2012–15 (Training of Poll Workers).

In 2011, the Boards reported rejecting a total of 568 provisional ballots on the basis of technical deficiencies in the ballot envelope. Those deficiencies include a missing or misplaced printed name or voter signature, or the voter’s signature was deemed not to match the exemplar on file with the Board.61 Any provisional ballots cast containing these sorts of technical deficiencies necessarily involves poll-worker error because it is the poll worker’s duty to ensure that provisional ballots are cast with a validly completed ballot envelope and affirmation. See Ohio Rev.Code §§ 3505.181(B)(2)-(3); 3505.182; see also Skaggs, 588 F.Supp.2d at 836 (“To be sure, *791 where any county board of elections accepts a Provisional Ballot without a complete voter affirmation, including a poll worker verification statement, that situation is attributable to the poll worker’s failure to perform his statutorily prescribed role and constitutes poll-worker error.”)

61

Traum Decl. ¶ 29; Ex. Z, Table 1; see also, id., Exs.

Z–CC (containing data showing rejection of ballots of

voters for “no signature,” “no printed name,” “printed

name and/or signature in wrong place”).

The Parties’ arguments, and the Court’s doctrinal analysis, on this “technical deficiencies” claim is much the same as the analysis on the wrong-precinct ballot claim. First, the Court must identify the restriction on the right to vote.
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Service Employees Intern. Union, Local 1 v. Husted, 887 F.Supp.2d 761 (2012)

Here, the data demonstrates that a discrete class of registered voters will have their ballots disqualified due to poll-worker error. This class of prospective provisional ballots is likely to be significantly smaller even than those cast in the correct location/wrong-precinct. Nevertheless, “[h]owever slight that burden may appear ... it must be justified by relevant and legitimate state interests,” Crawford, 553 U.S. at 191, 128 S.Ct. 1610, because even a single vote arbitrarily disqualified without a sufficient justification is an unconstitutional restriction.
In the case of technically deficient ballot envelopes, although the disqualification is still attributable to poll-worker error, the individual voter has a greater degree of control over whether the ballot envelope contains the required elements, and whether to complete the affirmation. In this way, the character of the burden of this restriction is arguably less severe than with wrong-precinct disqualifications, where the poll worker hands the voter an invalid ballot. As with wrong-precinct ballots, it is the poll worker’s failure to process the provisional ballot properly that leads to the ballot’s disqualification under Ohio Rev.Code § 3505.183(B)(4)(a)(iii). See Skaggs, 588 F.Supp.2d at 836, supra. The poll worker—not the voter—is the person legally tasked with confirming the validity of the provisional ballot ensuring the technical processing of the provisional ballot correctly. See Ohio Rev.Code § 3505.181(B)(2).
Although it is more difficult to quantify the precise magnitude of the burden imposed by this law’s restriction on the class of affected voters, the restriction’s unreasonableness is equally clear once the Court has to determine whether the law’s disqualification of ballots with technical deficiencies is justified by the State’s asserted interests. The Secretary relies on the same generally accepted interests in efficiently regulating elections to justify disqualifying ballots with these technical deficiencies. As before, the State’s authority to regulate elections does not justify the harsh restriction on the class of provisional votes at issue, where the Board is able to discern in its regular course that the ballot is cast by a lawfully-registered voter. See Anderson, 460 U.S. at 789, 103 S.Ct. 1564 (holding, “the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff’s rights”). Indeed, the interests provided by the Secretary with respect to the Sandusky factors are even less relevant to this restriction, as these ballots are cast in the correct precinct.

Simply because a specific regulation is part of a state’s mostly “reasonable, nondiscriminatory” electoral code does not make it justifiable in all its applications under Anderson and Burdick. See Crawford, 553 U.S. at 190, n. 8, 128 S.Ct. 1610 (stating, “Burdick surely did not create a novel ‘deferential important regulatory interests’ standard”). Given the irrelevance and weakness of the Secretary’s proffered justifications for the state’s requirement that Boards disqualify ballots with technical deficiencies where it is able to otherwise discern that the voter is qualified, the *792 same reasoning provided in the Court’s analysis of the wrong-precinct equal protection claim is equally applicable. Therefore, the Court also finds a likelihood of success on the merits of Plaintiffs’ “technical deficiencies” claim.
The Secretary’s revised directives do not alleviate the burden of the restriction, and do not moot Plaintiffs’ alleged violation, as the Secretary claims. Directive 2012–01 instructs boards of elections that provisional ballots are not to be rejected only where the poll worker fails to fill out his or her portion of the provisional envelope. The law continues to disqualify provisional ballots with deficient voter signatures or voter affirmations on the ballot envelope, which are the challenged restrictions of Ohio Rev.Code §§ 3505.181(B)(2), 3505.182, in Plaintiffs’ claim.62

62

See Plaintiffs’ Motion for Preliminary Injunction, at 29.

iii. Third Equal Protection Claim (Disparate Impact of Poll–Worker Error by County)
[15] Plaintiffs’ fifth claim for relief is more of an “as-applied” equal protection challenge. Plaintiffs claim that Ohio’s strict disqualification of wrong-precinct ballots creates a disparate impact on provisional voters, by arbitrarily subjecting voters to differing rates of arbitrary ballot disqualification based upon the county in which they reside.63 Specifically, Plaintiffs allege the evidence demonstrates that the result is higher rates of rejections due to poll-worker error in large urban counties with more multidistrict polling places. This disparately impacts voters residing in urban counties and precincts in violation of their right to vote on equal terms with voters in rural or suburban jurisdictions.
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Service Employees Intern. Union, Local 1 v. Husted, 887 F.Supp.2d 761 (2012)

63

See SAC ¶ 91.

Following the Supreme Court’s holding in Bush v. Gore, the Sixth Circuit has affirmed that “[i]n its review of the provisional ballots, the Board must apply specific and uniform standards to avoid the ‘nonarbitrary treatment of voters.’ ” Hunter I, 635 F.3d at 234 (quoting League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 475 (6th Cir.2008)). In Hunter I, the court found that “the Board has not asserted ‘precise interests’ that justified the unequal treatment” of provisional ballots. Id. at 238 (quoting Burdick, 504 U.S. at 434, 112 S.Ct. 2059). Specifically relating to Plaintiffs’ claims, the Supreme Court in Bush held that a State may not “accord[ ] arbitrary and disparate treatment to voters in its different counties.” 531 U.S. at 107, 121 S.Ct. 525. This requirement of equal protection may be violated by an election regulation that imposes a disparate impact. The disparate impact need not be intentional to be unconstitutional. See Hunter I, 635 F.3d at 234, n. 13 (rejecting the Ohio Republican Party’s argument that there can be no violation of the Equal Protection Clause without evidence of intentional discrimination).
If the evidence firmly supported Plaintiffs’ submission that voters in more populous counties are subjected to a higher chance of being disenfranchised, Ohio’s disqualifying wrong-precinct ballots due to poll-worker error would violate equal protection on that basis as well. The Secretary demonstrates, and Plaintiffs acknowledge,64 that the statistics from the past elections do not establish a consistently higher rate of rejected wrong-precinct ballots in urban counties relative to less populous counties. To show the alleged disparate impact of poll-worker error, Plaintiffs rely chiefly on the statistics and conclusions in Dr. Kimball’s Report. Using data from the Boards, Kimball shows that in *793 recent years the most populous counties have had a higher proportion of the total rejected wrong-precinct ballots.65

64

See Reply, at 14 n. 15.

65

In 2010, the eight most populated counties accounted

for 48 percent of total ballots cast, however those same

eight counties accounted for 76 percent of the

provisional ballots rejected for being in the wrong

precinct or county. Again in 2011, while the eight most

populated counties accounted for 46 percent of total ballots cast in the 2011 election, those same eight counties accounted for 79 percent of the provisional ballots rejected for being in the wrong precinct but the correct polling place. Kimball Decl. Ex. B at 11–25.

Showing that the more populous counties have a consistently higher percentage of the total rejected wrong-precinct ballots takes Plaintiffs one step closer to proving their claim. The more important metric for proving a disparate impact on voters on a county-by-county basis, however, is the rate of wrong-precinct rejections by county, and that statistic has not been demonstrably higher in urban counties.66 Without clear evidence that voters will be uniformly disenfranchised under the regulation in more populous counties, the Plaintiffs have not demonstrated a likelihood of success on this alternative equal protection challenge to Ohio’s wrong-precinct prohibition.

66

For example, in 2011, the Cuyahoga County (largest

urban county) wrong-precinct rejection rate of 24.4%

was eclipsed by rejection rates in rural counties such as

Perry (37%), Athens (39.6%), Van Wert (28.6%), and

Mercer (40.9%). See Kimball Report, Table 14.

iv. Fourth Equal Protection Claim (Unequal Treatment of Provisional Voters)
[16] Plaintiffs’ final equal protection claim alleges that the law’s differential treatment of wrong-precinct provisional ballots depending on the form of identification used to identify the voter constitutes unequal disparate treatment in violation of voters’ rights. The Decree mandates that Boards may not reject wrong-precinct ballots due to poll-worker error for individuals who use their last four social security digits to identify themselves at the polls.67 Plaintiffs claim that Ohio law’s failure to treat other provisional voters’ ballots the same—i.e., by counting their wrong-precinct ballots as well—violates equal protection by arbitrarily rejecting some wrong-precinct ballots and not others.68 The Secretary argues that to the extent the Decree orders differential treatment of wrong-precinct ballots, it is not the fault of the state’s election code. Moreover, the Secretary points to an allegedly contradictory position taken by Plaintiffs as SEIU condemns the effects of the Decree when SEIU is
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Service Employees Intern. Union, Local 1 v. Husted, 887 F.Supp.2d 761 (2012)

itself a party to the NEOCH litigation.

67

NEOCH Decree ¶ 5.

68

SAC ¶ 94.

Plaintiffs’ claims in this case and in the NEOCH litigation are not contradictory. While Plaintiffs argue that the Decree’s orders are necessary to avoid constitutional violations, they also argue that the Decree must be expanded to include all ballots that are cast in the wrong precinct due to poll-worker error. Indeed, Plaintiffs have consistently advocated for wrong-precinct ballots to be counted any time poll-worker error is the cause. While the Decree may have covered only a portion of wrong-precinct ballots, it does not demonstrate any change in Plaintiffs’ position.
As to the merits, the Ohio Revised Code treats all wrong-precinct ballots the same; none is counted. See Painter, 941 N.E.2d at 794. In incorporating the Decree, however, Ohio’s ballot counting rules result in disparate treatment of similarly situated provisional voters. See id. (acknowledging the Decree’s requirements); see also *794 NEOCH, 2012 WL 2711393, at *10–13, 2012 U.S. Dist. LEXIS 94086, at *35–45 (affirming that Ohio law is not in conflict with the Decree under Painter). Counting the provisional ballots of individuals who use their social-security numbers as identification under different standards from those who use other forms of identification violates the latter voters’ “constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.” Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); see also League of Women Voters, 548 F.3d at 477 (“At a minimum ... equal protection requires ‘nonarbitrary treatment of voters.’ ”) (quoting Bush, 531 U.S. at 105, 121 S.Ct. 525). The Sixth Circuit in Hunter I affirmed the likelihood that the Hamilton County Board of Election “arbitrarily treated one set of provisional ballots differently from others, and that unequal treatment violates the Equal Protection Clause.” 635 F.3d at 242. There is no reason for treating provisional ballots differently based on the type of identification used.
Defendants argue that the appropriate remedy for the violation caused by the law’s disparate treatment of wrong-precinct ballots is to stop counting any ballots

protected by the Decree, rather than to count all wrong-precinct ballots cast due to poll-worker error. Both the Sixth Circuit and this Court have rejected that rationale. See Hunter II, 850 F.Supp.2d at 846 n. 40 (“The cure to this violation requires the Board to count other ballots flawed by poll-worker error.... ‘[I]t is preferable as an equitable matter to enable the exercise of the right to vote ....’ ”) (quoting Hunter I, 635 F.3d at 245). The State’s preference to exercise its authority over elections by counting fewer wrong-precinct ballots is inapposite because the violation is of federal constitutional rights. The Secretary presents very little argument in defense of this claim. Based upon established principles of equal protection requiring that similar voters be met with similar vote counting standards from the State, the Court finds a likelihood of success on this alternative challenge to Ohio’s provisional ballot-counting regime.

b. Substantive Due Process
[17] Plaintiffs’ substantive due process claim mirrors the due process violation affirmed in the Hunter Litigation. Specifically, Plaintiffs’ claim that Ohio’s law mandating disqualification of ballots of lawfully-registered voters for reasons attributable to poll-worker error violates the Due Process Clause of the Fourteenth Amendment.69 See Hunter I, 635 F.3d at 243 (“Plaintiffs present the argument that failure to count provisional ballots cast in an incorrect precinct due to poll-worker error violates the Due Process Clause.”). This Court’s conclusion in Hunter II, that “Ohio’s precinct-based voting system ... is fundamentally unfair and abrogates the Fourteenth Amendment’s guarantee of due process of law,” establishes a likelihood of success on the merits for this claim.

69

SAC ¶ 97.

The Sixth Circuit has held that “[t]he Due Process clause is implicated, and § 1983 relief is appropriate, in the exceptional case where a state’s voting system is fundamentally unfair.” Warf v. Bd. of Elections of Green Cty., Ky., 619 F.3d 553, 559 (6th Cir.2010) (“Such an exceptional case may arise, for example, if a state employs non-uniform rules, standards and procedures, that result in significant disenfranchisement and vote dilution.”) (internal quotation marks omitted). With
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Service Employees Intern. Union, Local 1 v. Husted, 887 F.Supp.2d 761 (2012)

regard to Plaintiffs’ due process claim, the Hunter I Court stated:
Ohio has created a system in which state actors (poll workers) are given the ultimate *795 responsibility of directing voters to the right location to vote. Yet, the state law penalizes the voter when a poll worker directs the voter to the wrong precinct, and the penalty, disenfranchisement, is a harsh one indeed. To disenfranchise citizens whose only error was relying on poll-worker instructions appears to us to be fundamentally unfair.
Hunter I, 635 F.3d at 243. Chief Judge Dlott subsequently held, in her well-reasoned opinion in Hunter II, that Ohio’s precinct-based voting system:
delegates to poll workers the duty to ensure that voters are directed to the correct precinct but which provides that provisional ballots cast in the wrong precinct shall not be counted under any circumstance, even where the ballot is miscast due to poll-worker error, is fundamentally unfair and abrogates the Fourteenth Amendment’s guarantee of due process of law.
850 F.Supp.2d at 847.
Although the Court was “without jurisdiction to order a remedy” for the due process violation in Hunter, see id., here, the Attorney General’s office is part of this case and has defended the constitutionality of the Ohio Revised Code more than competently.
The Secretary refutes the law and evidence in support of Plaintiffs’ due process claim, but refuses even to address Hunter’s holding that Ohio’s provisional ballot law violates due process. Id. Based on the evidence in support of the Court’s equal protection analysis, and the final decision by this Court in Hunter, Plaintiffs’ due process claim has a strong likelihood of success on the merits.

2. Irreparability of Harm
[18] The prospective harm to Plaintiffs in the upcoming election if the challenged provisions of the Ohio election code are not enjoined is irreparable. Where, as here, “Defendants’ challenged actions threaten or impair both Plaintiffs’ constitutional right to due process and constitutional right to vote, the Court must find that Plaintiffs will suffer an irreparable injury.” Miller v. Blackwell, 348 F.Supp.2d 916, 922 (S.D.Ohio 2004); see also Overstreet v. Lexington–Fayette Urban Cnty. Gov’t, 305 F.3d 566, 578 (6th Cir.2002) (holding, “a plaintiff can demonstrate that a denial of an injunction will cause irreparable harm if the claim is based upon a violation of the plaintiff’s constitutional rights”).

3. Balancing of Harms
[19] The equitable balancing of harms also weighs in favor of granting injunctive relief in this case. The Court’s analysis on this factor is similar to the Court’s balancing of Plaintiffs’ (i.e. wrong-precinct provisional voters) interests and the State’s interests in determining an equal protection violation. The Secretary claims that the Plaintiffs’ proposed injunction will cause more harm than good to the integrity of Ohioans’ voting franchise by causing a “cascade” of collateral Equal Protection and Due Process violations on Ohio voters.70 The two specific categories of “downstream” constitutional violations the Secretary identifies from the proposed order to count wrong-precinct ballots are: (1) “split-precinct” voter dilution; and (2) the residual disenfranchisement of the same voters in precinct-only electoral races.

70

Secretary Opp. at 18–19.

Neither of these prospective harms outweighs the benefits from preventing the rejection of thousands of wrong-precinct and technically deficient provisional ballots miscast through poll-worker error. The Secretary’s vote dilution argument, as noted in Section III.B., supra, is addressed by *796 Plaintiffs’ proposed order, which eliminates the potential for vote dilution by only counting “up-ballot” votes.71 Any remaining interests “in preventing the counting of invalid votes must be weighed against the voters’ ‘strong interest in exercising the fundamental political right to vote.’ ” Hunter I, 635 F.3d
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Service Employees Intern. Union, Local 1 v. Husted, 887 F.Supp.2d 761 (2012)

at 243 (quoting Purcell, 549 U.S. at 4, 127 S.Ct. 5 (internal quotation marks omitted)).

71

See supra note 57.

Second, the Secretary claims that Plaintiffs’ proposed counting votes of wrong-precinct ballots only in those races for which that voter is eligible to vote (“up-ballot” races) will still leave the remaining disenfranchisement of the same voter who is then unable to vote in all his precinct-specific races. This argument is without force, at least on the balancing of harms in this case. It suggests that the harm to a voter from having lost the opportunity of voting, entirely, is somehow outweighed by the harm from having lost the opportunity to vote just in precinct-specific races. Any voter would rather have some races counted, as under the Plaintiffs’ proposed order, than none at all, as under the Ohio law’s blanket prohibition.

4. Public Interest
[20] Finally, the “public interest” factor weighs in favor of counting provisional ballots cast by registered voters, for reasons already established. The Sixth Circuit has recognized that, although “both the state and the voting public have interests at stake,” which may conflict at times, Hunter I, 635 F.3d at 244, “it is always in the public interest to prevent violation of a party’s constitutional rights.” Deja Vu of Nashville, Inc. v. Metropolitan Government of Nashville and Davidson County, Tennessee, 274 F.3d 377, 400 (6th Cir.2001) (internal quotations omitted). As the Hunter I Court opined in affirming this Court’s granting of a preliminary injunction, the State of Ohio “has a strong interest in [its] ability to enforce state election law requirements.” Id. On the other hand,
[m]embers of the public, however, have a strong interest in exercising the fundamental political right to vote. That interest is best served by favoring enfranchisement and ensuring that qualified voters’ exercise of their right to vote is successful.

Hunter I, 635 F.3d at 244.
Even constitutionally-required judicial intervention into the state’s electoral system should be done with caution, lest the franchise be undermined by the very organs sworn to protect it. The Court is acutely aware from elections past that last-minute changes in election laws can, for example, “generate voter confusion and consequent incentive[s] to remain away from the polls.” See id. An order from this Court prohibiting the Board from disqualifying wrong-precinct provisional ballots due to poll-worker error will affect few, if any, changes to the rules and procedures facing poll workers and voters on election day. An injunction would only affect the Board’s procedures in counting provisional ballots after the election, at which time voter confusion and deterrence is a non-threat.
Moreover, the experience from the past two years’ elections demonstrates that wrong-precinct provisional ballots can successfully be reviewed and counted for poll-worker error, as is currently required for those ballots covered by the Decree. Thousands of voters have been spared arbitrary disenfranchisement because of the Decree, to which the State and the Secretary are parties.72 The Secretary’s claims *797 that “the relief Plaintiffs’ seek would necessarily alter Ohio’s precinct-based voting system” and “potentially fundamentally change voting nationwide,”73 are unfounded. Plaintiffs merely seek to protect the remaining qualified voters outside the Decree’s scope from being disenfranchised due to poll-worker error.

72

See Northeast Ohio Coalition for the Homeless v.

Husted, No. 06–cv–896, 2012 WL 1658896, 2012 U.S.

Dist. LEXIS 66111 (S.D.Ohio May 11, 2012).

73

Secretary Opp. at 1.

The Secretary repeatedly maintains that provisional ballots are simply “a last-stitch safety net for people who traditionally would have been turned away completely.”74 Presumably, attempting to justify even arbitrary disenfranchisement of provisional voters as being merely “collateral damage,” with no legal significance. This outlook belies a fundamentally misguided view that the State need not protect the right to vote of individuals who, for any number of reasons, are required to cast a
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Service Employees Intern. Union, Local 1 v. Husted, 887 F.Supp.2d 761 (2012)

provisional ballot. The Supreme Court in Bush v. Gore repudiated that position expressed by the Secretary with its holding that “[h]aving once granted the right to 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, 121 S.Ct. 525. And as this Court has previously stated, “it is well-settled that the Constitution protects the right of all qualified voters to have their votes counted,” even voters who are only deemed qualified upon review of their provisional ballots. Skaggs, 588 F.Supp.2d at 834 (emphasis added); see also O’Brien v. Skinner, 414 U.S. 524, 94 S.Ct. 740, 38 L.Ed.2d 702 (1974).

74

Transcript of Oral Proceedings, July 30, 2012,

12–cv–562, at 69:18–19.

HAVA prudently left the states to choose how they fashion the “safety net” of provisional ballots, as well as which citizens must rely on their votes being caught by it on election day. See Sandusky, 387 F.3d at 576 (holding, “the ultimate legality of the vote cast provisionally is generally a matter of state law”) (emphasis added). Once fashioned, however, the Constitution demands a safety net without holes—or, to be more precise, without any holes which cannot be justified. Id. at 569 (recognizing, while the law gives “primary responsibility for administering and regulating elections to the States, the States must adhere to certain constitutional and statutory requirements”). If this were not the law, states would be free to require every voter to vote “provisionally” and then arbitrarily reject ballots as they pleased with impunity.
The Plaintiffs have demonstrated a likelihood of succeeding on their equal protection challenges to the requirement that the Boards reject wrong precinct provisional ballots cast due to poll-worker error, as required by Ohio Rev.Code §§ 3505.183(B)(4)(a)(ii) and (B)(4)(b)(ii), contained in Claims One and Six of the Second Amended Complaint. Plaintiffs have also demonstrated a likelihood of success on the substantive due process challenge to the same provision of Ohio law contained in Claim Seven. Plaintiffs have further demonstrated a likelihood of success on their constitutional challenge to the requirement that Boards reject provisional ballots containing technical deficiencies in the ballot envelope, as required by Ohio Rev.Code § 3505.183(B)(4)(a)(iii), contained in Claim Two of the Second Amended Complaint. The additional factors of the

irreparable nature of the prospective harm to Plaintiffs; the balance of harm to others; and consideration of the public interest each weigh in further support of issuing an order enjoining the challenged restrictions on Plaintiffs’ members voting franchise.
*798 Based on the foregoing, the Court finds that preliminary injunctive relief is appropriate and Plaintiffs’ Motion for a Preliminary Injunction is GRANTED.

E. Appropriate Injunctive Relief
The Court determines the following preliminary injunction on the Board’s enforcement of Ohio law to be the appropriate relief, and the least restrictive upon the State, adequate to ensure the protection of Plaintiffs’ constitutional rights in the upcoming election:75

75

The Court’s Order departs slightly from Plaintiffs’

proposed preliminary injunction, to avoid imposing any

presumption of poll-worker error. See Painter, at 798

(holding, “election officials err in presuming

poll-worker error”). The Court’s Order leaves in place

the existing measures employed by the Boards for

counting and remaking wrong-precinct provisional

ballots, as required under the Decree.

It is hereby ORDERED that, within ten business days of this Order, Defendant Secretary of State shall issue a Directive requiring that Ohio’s county boards of elections may not reject any provisional ballots cast by lawfully-registered voters in the November 2012 general election for the following reasons:
1. The voter cast his or her provisional ballot in the wrong precinct, unless the poll worker who processed the voter’s provisional ballot has:
a) determined the correct precinct for the voter;
b) directed the voter to the correct precinct;
c) informed the voter that casting the wrong-precinct ballot would result in all votes on the ballot being rejected under Ohio law; and
d) the voter refused to travel to the correct precinct and insisted on voting the invalid ballot;
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Service Employees Intern. Union, Local 1 v. Husted, 887 F.Supp.2d 761 (2012)

and the Board of Elections has verified that the precinct to which the poll worker directed the voter was the correct precinct for that voter. If the County Board of Elections cannot verify that the poll worker directed the voter to the correct precinct, the votes cast on the provisional ballot must be counted in all races and for all issues for which the voter would have been eligible to vote if he/she had cast the ballot in the correct precinct.
2. The provisional ballot envelope does not contain a voter signature and the County Board of Elections has otherwise been able to determine that the voter is a registered voter; and/or the provisional ballot envelope does not contain the voter’s full printed name and the County Board of Elections has otherwise been able to determine that the voter is a registered voter; and/or the voter did not sign and/or print the voter’s name in the correct place(s) on the ballot envelope and the County Board of Elections has otherwise been able to determine that the voter is a registered voter.
V. MOTION TO MODIFY THE CONSENT DECREE
[21] On June 20, 2012, the Plaintiffs in NEOCH filed their Motion to Modify the Decree to Prevent Constitutional Violations pursuant to Rule 60 and the Court’s equitable authority to modify the Decree’s injunctive relief. On July 9, 2012, the Court issued its Opinion and Order Denying

Defendants’ Request to Vacate the Consent Decree.76 The Relators and the *799 State Defendants oppose modification of the decree on both procedural and substantive grounds. As of the Court’s ruling in that Order upholding the validity of the Consent Decree, Plaintiffs’ Motion to Modify the Consent Decree is ripe for determination.

76

See NEOCH, 2012 WL 2711393, 2012 U.S. Dist.

LEXIS 94086.

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

77

Motion to Modify, at 5.

IT IS SO ORDERED.

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 Service Employees Intern. Union Local 1 v. Husted, Slip Copy (2013)

2013 WL 628527 Only the Westlaw citation is currently available. This case was not selected for publication in the
Federal Reporter. Not for Publication in West’s Federal Reporter. See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or
after Jan. 1, 2007. See also Sixth Circuit Rule 28. (Find CTA6 Rule 28)
United States Court of Appeals, Sixth Circuit.
SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 1; United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial And Service Workers International Union; International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005; International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863; Ohio Organizing Collaborative; United Food and Commercial Workers, Local 75; United Food and Commercial Workers Union Local 880; United Food and Commercial Workers, Local 1059,
Plaintiffs–Appellees, v.
Jon HUSTED, Defendant, and
Roberta Van Atta, Emilie Illson, Thomas Kelly, Intervenors–Appellants.
No. 12–4079. | Feb. 20, 2013.
Synopsis Background: Nonprofit organization representing the homeless, and local affiliate of national labor union, brought § 1983 actions against then Ohio Secretary of State challenging constitutionality of Ohio’s provisional ballot system. Parties initially resolved actions prior to any final adjudication on the merits on constitutional claims by entering into consent decree. The United States District Court for the Southern District of Ohio, Algenon L. Marbley, J., upheld validity of decree, 2012 WL 2711393, and entered preliminary injunction, 2012 WL 3643064. Voters moved to intervene. The District Court, Marbley J., 887 F.Supp.2d 761, denied intervention. Voters appealed.

Holding: The Court of Appeals held that district court acted within its discretion in denying permissive intervention.
Affirmed.
On Appeal from the United States District Court for the Southern District of Ohio. Before: GIBBONS and COOK, Circuit Judges; ROSENTHAL, District Judge.*
Opinion
PER CURIAM.
*1 A bipartisan group of Ohio voters appeals the district court’s denial of permissive intervention in consolidated cases challenging the constitutionality of Ohio’s provisional ballot system. After the Secretary of State declined to appeal a portion of the district court’s judgment on the merits of the constitutional claims, these voters and others moved to intervene or appear as amici on appeal. We heard the voters as amici in appeal 12–4069 and affirmed the district court’s judgment in part. Ne. Ohio Coal. for Homeless v. Husted, 696 F.3d 580, 604 (6th Cir.2012). We have since reviewed other aspects of this litigation, portions of which remain pending. See Ne. Ohio Coal. for Homeless v. Husted, No. 12–4354, slip op. (Nov. 16, 2012); SEIU v. Husted, 698 F.3d 341 (6th Cir.2012). For this appeal, however, we need only decide the voters’ challenge to the district court’s denial of permissive intervention. We AFFIRM.
I.
The record reflects that the voters filed their motion to intervene on July 27, 2012, the last business day before the July 30, 2012 preliminary injunction hearing on the merits of the constitutional claims. The voters justified their delay by pointing to plaintiffs’ amended complaint filed three days earlier. According to the voters, the amended complaint’s removal of the local boards of election necessitated their intervention to provide a “local perspective.” After hearing argument on the motion, the
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Service Employees Intern. Union Local 1 v. Husted, Slip Copy (2013)

district court denied intervention, deeming the voters’ motion untimely and their legal interests adequately represented by the Secretary of State. The voters challenge both conclusions.
II.
Federal Rule of Civil Procedure 24(b) governs permissive intervention, providing that a court, “[o]n timely motion,” may grant intervention to anyone who “(B) has a claim or defense that shares with the main action a common question of law or fact.” Fed.R.Civ.P. 24(b)(1)(B). “In exercising [this] discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.” Fed.R.Civ.P. 24(b)(3). We review the denial of permissive intervention for a “clear abuse of discretion,” reversing only if “left with the definite and firm conviction” that the district court committed a clear error of judgment. Coal. to Defend Affirmative Action v. Granholm, 501 F.3d 775, 784 (6th Cir.2007) (citations omitted).
Courts consider the following factors in assessing the timeliness of an intervention motion:
(1) the point to which the suit has progressed; (2) the purpose for which intervention is sought; (3) the length of time preceding the application during which the proposed intervenor knew or reasonably should have known of his interest in the case; (4) the prejudice to the original parties due to the proposed intervenor’s failure, after he or she knew or reasonably should have known of his interest in the case, to apply promptly for intervention; and (5) the existence of unusual circumstances militating against or in favor of intervention.
*2 United States v. Tennessee, 260 F.3d 587, 591 (6th Cir.2001). The district court inquired about each factor during oral argument and adequately explained its denial of intervention.
As the district court explained, the voters waited five

weeks after the filing of the complaint to seek intervention. By that time, more than two weeks had passed since the parties’ completion of briefing on the complex motion for preliminary injunction and the court’s scheduling of a hearing. Furthermore, two years had passed, without intervention by these voters, since a consent decree in a related case ordered the same remedy these voters claim would dilute their votes—the counting of the wrong-precinct provisional ballots. (R. 69, Hr’g Tr. at 91 (noting that the consent decree could have triggered the voters’ vote-dilution concerns); see also No. 2:06–cv–896, R. 210, Consent Decree ¶ 5(b)(v), (vi).) Noting the approaching November election, the court held that “[a]llowing the applicants’ intervention will prejudice the existing parties and ‘will inhibit, not promote, a prompt resolution.’ ” SEIU v. Husted, 887 F.Supp.2d 761, 772 (S.D.Ohio 2012) (quoting Coal. to Defend Affirmative Action, 501 F.3d at 784). (See also R. 69, Hr’g Tr. at 91–92 (“Here, we are definitely in a position where we have to act expeditiously in order for this matter to wind its way through the court of appeals in time for all of the local boards of election to know what the rules of engagement will be for the November election.”).)
Neither the voters’ vague interest in a “local perspective” nor the recent removal of the boards of election justified the delay. Indeed, counsel for the voters admitted during the injunction hearing that their real interest in the litigation—preventing vote dilution—“w[as] extant from the inception of the ... litigation”—i.e., more than a month before the attempted intervention. (See R. 69, Hr’g Tr. at 5–6.) And counsel offered nothing more than an unspecified “fe[eling]” that the recently removed boards of election “were ... more closely aligned with [his] clients’ rights and ... view of the case than ... the [Secretary of State].” He did not identify specific arguments or evidence that would be abandoned as a result of dismissing the boards of election, and he admitted that the Secretary of State would act to prevent vote dilution. (See id. at 6–7; see also id. at 5 (admitting that “it was perspective but not [the stated interest in the litigation] that changed” with the dismissal of the boards of election).)1
Nevertheless, the voters respond that our decision in Jansen v. City of Cincinnati required allowing intervention here. See 904 F.2d 336, 344 (6th Cir.1990) (reversing denial of intervention, finding motion timely and intervention essential to protecting the applicants’ interests). Not so. First, we note that Jansen addressed intervention as of right under Federal Rule of Civil Procedure 24(a), and thus devoted significant, de novo
2

Service Employees Intern. Union Local 1 v. Husted, Slip Copy (2013)

consideration to the proposed intervenor’s “significant legal interest in ... the pending litigation” and the parties’ ability to “adequately protect the proposed intervenors’ interest.” Id. at 340, 341–44. Second, the different circumstances at issue in Jansen preclude application of its timeliness ruling here.
*3 In Jansen, we found that the district court abused its discretion in deeming an intervention motion untimely when the applicants filed the motion approximately two weeks after the city responded to the plaintiffs’ summary judgment motion. The city’s failure to address issues relating to a consent decree specifically “alerted the proposed intervenors that their interest was not being adequately represented.” Id. at 341. It is also notable that several months remained in the discovery period at the time of the motion. Viewed in this context, the “short period d[id] not support a finding of undue delay.” Id.
By comparison, the delay here posed a significant risk of upsetting the expedited schedule necessitated by the upcoming election. As noted above, the voters filed their motion on the last business day before the injunction hearing, weeks after the parties’ pleadings and briefing, and more than two years after the consent decree in a related case ordered relief similar to that sought by these plaintiffs. Other than a vague “local perspective” shared with the recently dismissed election boards, the voters offered no explanation for their delay.
The voters also argue that courts routinely allow intervention in election law cases. See, e.g., Sandusky Cnty. Democratic Party v. Blackwell, 387 F.3d 565, 570 n. 2 (6th Cir.2004) (acknowledging that the district court allowed individual voters to intervene the week before judgment);2 Clark v. Putnam Cnty., 168 F.3d 458, 461 n. 3 (11th Cir.1999) (referring to the intervention of voters as “normal practice” in reapportionment disputes). This is indisputably so, and for good reason—the right to vote “is regarded as a fundamental political right, because [it is] preservative of all rights.” Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). Still, Rule 24(b) vests district courts with discretion to allow timely intervention motions, upon consideration of delay and prejudice. Fed.R.Civ.P. 24(b)(1), (3). Under these circumstances, the district court could reasonably

conclude that intervention would cause undue delay. We therefore cannot say with “definite and firm conviction” that the district court abused its discretion. Coal. to Defend Affirmative Action, 501 F.3d at 784 (affirming denial of permissive intervention).3

III. For the above reasons, we AFFIRM.

*

The Honorable Lee H. Rosenthal, United States District

Judge for the Southern District of Texas, sitting by

designation.

1

When pushed on the local perspective argument,

counsel offered the alternative justification that these

voters potentially faced a “unique” injury arising from

plaintiffs’ proposed remedy: vote dilution caused by

additional poll-worker error. (R. 69, Hr’g Tr. at 6.)

Counsel did not explain how the election boards, but

not the Secretary of State, shared the voters’ interest in

preventing this “unique” injury.

2

We note that the voters in Sandusky sought intervention

seven days after the complaint was filed. 387 F.3d at

570 & n. 2.

3

The voters further argue that the Secretary of State’s

decision not to appeal a portion of the district court’s

merits judgment further justifies their intervention in

this case. Yet this argument in favor of intervention on

appeal does not bear on the district court’s denial of

permissive intervention. As previously mentioned, we

granted the voters’ alternative request to appear as

amici, a remedy agreed to by all parties.

3

 
 Case: 2:06-cv-00896-ALM-TPK Doc #: 51 Filed: 11/01/06 Page: 1 of 7 PAGEID #: 1434

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

THE NORTHEAST OHIO COALITION FOR THE HOMELESS, et al.
Plaintiffs,
v.
J. KENNETH BLACKWELL, in his official capacity as Secretary of State of Ohio
Defendant.

Case No. C2-06-896 JUDGE ALGENON L. MARBLEY
CONSENT ORDER

This matter came before the Court on the Plaintiffs' Motion for a Temporary Restraining Order and Plaintiffs' Complaint and Motion for a Preliminary Injunction.
Under the requirements of House Bill 234, all voters who obtained an absentee ballot on October 3, 2006 or after, had to return a properly completed application to their local Boards of Elections. That statute required the voter to supply a driver's license number, the last four digits of the voter's social security number, or other statutorily recognized forms of identification.
After this Court issued a temporary restraining order on October 26, 2006 all voters who obtained absentee ballots did not have to provide specific identifying information as required by House Bill 234.
Once the U.S. Court of Appeals for the Sixth Circuit stayed this Court's temporary restraining order on October 29, then under House Bill 234, any voter who obtained an absentee ballot had to return a properly completed application to their local Board of Elections. That

-I-

Case: 2:06-cv-00896-ALM-TPK Doc #: 51 Filed: 11/01/06 Page: 2 of 7 PAGEID #: 1435
statute required the voter to supply a driver's license number, the last four digits of the voter's social security number, or other statutorily recognized forms of identification.
The Parties to this action desire to avoid confusion, ensure that all voters are treated fairly, and ensure that all votes properly cast in the November 2006 General Election be counted. Therefore the parties enter into the following Consent Order, which shall apply only to the November 2006 General Election.
1. County Boards of Elections shall permit absentee voters who apply or applied for an absentee ballot in the November 2006 General Election to provide proof of their identities in the form of a Driver's License number, the last four digits of the voter's social security number, or a copy of a current and valid photo identification, a copy of a military identification that shows the elector's name and current address, or a copy of a current utility bill, bank statement, goverrunent check, paycheck, or other goverrunent document, other than a notice of an election mailed by a board of elections under section 3501.19 of the Revised Code or a notice of voter registration mailed by a board of elections under section 3503.19 of the Revised Code, that shows the name and address of the elector.
2. County Boards of Elections shall accept and count any absentee or provisional ballot that an absentee voter cast and returned, whether by mail or in-person, to the local Board of Elections, if that ballot has the voter's name, address, date of birth, and signature as required by R.C. § 3509.04(B) and otherwise complies with Ohio law. County Boards of Elections shall count these ballots even if they do not contain the driver's license number, the last four digits of the voter's social security number, or other statutorily recognized forms of identification.
-2-

Case: 2:06-cv-00896-ALM-TPK Doc #: 51 Filed: 11/01/06 Page: 3 of 7 PAGEID #: 1436
3. To cast a regular ballot on Election Day, electors shall provide proof of their identities in the form of a current and valid photo identification, a military identification that shows the voter's name and current address, or a copy of a current utility bill, bank statement, government check, paycheck, or other government document, other than a notice of an election mailed by a board of elections under section 3501.19 of the Revised Code or a notice of voter registration mailed by a board of elections under section 3503.19 of the Revised Code, that shows the name and current address of the elector. 4. A "photo identification" as used in this Order means a document that meets each of the following requirements:
(a) It shows the name of the individual to whom it was issued, which shall conform to the name in the poll list or signature pollbook.
(b) It shows the current address of the individual to whom it was issued, which shall conform to the address in the poll list or signature pollbook, except for a driver's license or a state identification card issued under section 4507.50 of the Revised Code, which may show either the current or former address of the individual to whom it was issued, regardless of whether that address conforms to the address in the poll list or signature pollbook.
(c) It shows a photograph of the individual to whom it was issued. (d) It includes an expiration date that has not passed. (e) It was issued by the government of the United States or this State. 5. A voter on Election Day, November 7, 2006, who does not have, or who has but is unable to provide, one of the forms of identification listed in paragraph 3 above, but who has a social
-3-

Case: 2:06-cv-00896-ALM-TPK Doc #: 51 Filed: 11/01/06 Page: 4 of 7 PAGEID #: 1437
security number, may provide the last four digits of the voter's social security number. Upon providing the last four digits of a social security number, the voter may cast a provisional ballot under section 3505.181 of the Revised Code, the envelope of which shall include that social security number information. Such provisional ballots shall be counted if they meet the test provided in paragraph 8 below.
6. A voter on Election Day, November 7, 2006, who does not have any of the forms of identification listed in paragraph 3 above, and who also does not have a social security number, may execute an affirmation under penalty of election falsification that the elector cannot provide the identification required under that division or the last four digits of a social security number for those reasons. Upon signing the affirmation, the elector may cast a provisional ballot under section 3505.181 of the Revised Code. Such provisional ballots shall be counted if they meet the test provided in paragraph 8 below.
7. A voter on Election Day, November 7, 2006, who has a military identification that does not show the voter's current address, but that does show the voter's social security number, may provide the last four digits of the voter's social security number. Upon providing the social security number information, the voter may cast a provisional ballot under section 3505.181 of the Revised Code, the envelope of which shall include that social security number information. Such provisional ballots shall be counted if they meet the test provided in paragraph 8 below.
8. If, in examining a provisional ballot affirmation and additional information under divisions (B)(l) and (B)(2) of Ohio Revised Code Section 3505.183, the Board of Elections determines that all of the following conditions are met, the provisional ballot envelope shall be
-4-

Case: 2:06-cv-00896-ALM-TPK Doc #: 51 Filed: 11/01/06 Page: 5 of 7 PAGEID #: 1438
opened, and the ballot shall be placed in a ballot box and counted. If any of the following conditions are not met, then the provisional ballot shall not be counted:
(a) The individual named on the affirmation is qualified (i.e. registered and eligible to vote under Ohio law).
(b) The individual named on the affirmation is properly registered to vote. (c) The individual named on the affirmation is eligible to cast a ballot in the precinct. (d) The individual named in the affirmation is eligible to cast a ballot for the election
in which the individual cast the provisional ballot. (e) The individual provided all of the information required under division (B)(l) of
Section 3505.183 in the affirmation that the individual executed at the time the individual cast the provisional ballot. (f) The individual has not already cast a ballot for the election in which the individual cast the provisional ballot. (g) If applicable, the individual provided any additional information required under division (B)(8) of section 3505.181 of the Revised Code within ten days after the day of the election. (h) If applicable, the hearing conducted under division (B) of section 3503.24 of the Revised Code after the day of the election resulted in the individual's inclusion in the official registration list.
-5-

Case: 2:06-cv-00896-ALM-TPK Doc #: 51 Filed: 11/01/06 Page: 6 of 7 PAGEID #: 1439
(i) The individual provided a current and valid photo identification, a military identification that shows the voter's name and current address, a copy of a current utility bill, bank statement, government check, paycheck, or other government document, other than a notice of an election mailed by a board of elections under section 3503.19 of the Revised Code, with the voter's name and current address, or the last four digits of the individual's social security number or executed an affirmation under division (A) of section 3505.18 or division (B) of section 3505.181 of the Revised Code.
9. "Current" as used in the phrase "current utility bill, bank statement, government check, paycheck, or other government document" in this Order shall be defined as one year from the date on which it is presented to the Board of Elections. "Utility'' includes, but is not limited to, water, sewer, electric, natural gas, cable, internet, telephone, and cellular-telephone service.
I0. "Other government document" as used in this Order shall be defined as any document that has a current address and is issued by an appropriate governmental entity. "Other government document" includes, but is not limited to, those documents issued by all branches of local governments (including city, municipal, county, towuship, and village governments), all branches and political subdivisions of the State of Ohio (including public colleges or universities, public community colleges), and all branches of the United States government.
II. The remaining portion ofthis Court's Temporary Restraining Order of October 26, 2006 that was not previously stayed by the Sixth Circuit is dissolved, and Boards of Elections no longer have to preserve the absentee ballots as the October 26, 2006 Order required.
-6-

Case: 2:06-cv-00896-ALM-TPK Doc #: 51 Filed: 11/01/06 Page: 7 of 7 PAGEID #: 1440

12. The Secretary of State and the Boards of Elections shall communicate this information to all of their employees and shall post it on the home page and voting-rule-related pages on their websites.
IT IS SO ORDERED that Defendant J. Kenneth Blackwell and County Boards of Elections are to act in accordance with the above, and that this Court shall retain jurisdiction to enforce this Consent Order. This Consent Order shall remain in effect until further order of this Court or until dismissal of this action.

/V~ /.lao G, I
Date

U.S.0ist · t Judge AlgengnLMarbjyy ____ ~--------

APPROVED BY:

Jim Petro Attorney General
oglianese Assist Attorney General Larry H. James Christina L. Cor! Crabbe, Brown & James Attorneys for Defendant Secretary ofState J. Kenneth Blackwell

L__..--.---~--------- ----------

:=::2 '

Caroline H. Gentry

(__ ~

Porter Wright Morris & Arthur, LLP~- - - - ....':::>

Subodh Chandra

The Chandra Law Firm LLC

H. Ritchey Hollenbaugh

Carlile Patchen & Murphy

Attorneys for Plaintiffs

The Northeast Ohio Coalition for the Homeless, et al.

-7-

 
 Case: 2:06-cv-00896-ALM-TPK Doc #: 302 Filed: 06/26/12 Page: 1 of 2 PAGEID #: 10349

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

THE NORTHEAST OHIO COALITION :

FOR THE HOMELESS, et al.,

:

:

Plaintiffs, :

:

v.

:

:

JON HUSTED, in his official capacity as :

Secretary of the State of Ohio,

:

:

Defendant.

:

:

and :

:

STATE OF OHIO

:

:

Intervenor-Defendant :

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

ORDER RELATING CASES AND FOR APPEARANCE OF NEW COUNSEL This matter is currently scheduled for oral argument on Defendants’ request to vacate the

Consent Decree, on Wednesday, June 27, 2012 at 2:00 p.m. On June 20, 2012, Plaintiffs filed a

Motion to Modify the Consent Decree, requesting that the Court make findings of constitutional

violations within Ohio’s provisional voting regime, and expand the scope of the Consent

Decree’s injunctive relief to prevent further violations. (Dkt. 288.) In their motion, Plaintiffs

notified the Court of a then-forthcoming related lawsuit which alleges essentially identical

constitutional challenges to Ohio’s provisional voting laws. Plaintiffs, accordingly, requested

that the Court combine their motion to modify with the motion in the new case. (Id. at 5.)

The complaint in the related case, Service Employees International Union Local 1 (SEIU)

et al. v. Jon Husted et al., Case No. 12-cv-562, was filed on June 22, 2012. A motion for a

preliminary injunction was filed in the new action the same day, (12-cv-562, Dkt. 4), requesting

substantially similar injunctive relief as Plaintiffs’ motion to modify the Consent Decree. The

Case: 2:06-cv-00896-ALM-TPK Doc #: 302 Filed: 06/26/12 Page: 2 of 2 PAGEID #: 10350

SEIU v. Husted plaintiffs filed, along with the complaint, a notice of related cases pursuant to

S.D. Ohio Local Rule 3.1(b). The notice listed the instant case as a related case, and requested

that the two cases be related. In the alternative, plaintiffs requested that the SEIU v. Husted

action be related to the Hunter v. Hamilton County Board of Elections case, Case No. 10-cv-820.

The Court deemed the SEIU v. Husted case to be related to the instant case because, inter alia,

the SEIU case “[c]all[s] for a determination of the same or substantially identical questions of

law or fact” as Plaintiffs call for in this case. See S.D. Ohio Local Rule 3.1(b)(2).

Counsel for parties in SEIU v. Husted, 12-cv-562, are hereby ORDERED to appear at

the scheduled hearing in NEOCH v. Husted, 06-cv-896, tomorrow, Wednesday, June 27, at

2:00 p.m., 85 Marconi Blvd. Columbus, OH 43215, Chambers of Algenon L. Marbley. All

parties shall be prepared to discuss the plaintiffs’ request to consolidate the pending motions in

both actions at that time.

IT IS SO ORDERED.

ALGENON UNITE DATED: June 26, 2012

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

2

 
 Case: 2:06-cv-00896-ALM-TPK Doc #: 336 Filed: 10/12/12 Page: 1 of 39 PAGEID #: 12456(1 of 39)

Deborah S. Hunt Clerk

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

Tel. (513) 564-7000 www.ca6.uscourts.gov

Mr. Stephen P. Berzon Ms. Barbara Jane Chisholm Ms. Danielle E. Leonard Ms. Stacey Monica Leyton Altshuler Berzon 177 Post Street, Suite 300 San Francisco, CA 94108
Mr. Joseph W. Boatwright IV Cuyahoga County Law Department 1219 Ontario Street, Fourth Floor Cleveland, OH 44113
Ms. Erin Elizabeth Butcher-Lyden Mr. Stephen P. Carney Mr. Richard N. Coglianese Ms. Peggy W. Corn Mr. Aaron David Epstein Mr. Peter K. Glenn-Applegate Mr. Michael Jason Hendershot Mr. Frederick Dickson Nelson Office of the Ohio Attorney General 30 E. Broad Street 17th Floor State Office Tower Columbus, OH 43215
Mr. Subodh Chandra 1265 W. Sixth Street, Suite 400 Cleveland, OH 44113
Ms. Caroline H. Gentry Mr. Daniel B. Miller Porter, Wright, Morris & Arthur One S. Main Street Suite 1600 One Dayton Centre Dayton, OH 45402

Filed: October 11, 2012

Case: 2:06-cv-00896-ALM-TPK Doc #: 336 Filed: 10/12/12 Page: 2 of 39 PAGEID #: 12457(2 of 39)
Mr. Eric Miller Goldstein Ms. Elizabeth Petrela Papez Winston & Strawn 1700 K Street, N.W. Washington, DC 20006
Ms. Cathrine J. Harshman Mr. Michael J. Hunter Hunter, Carnahan, Shoub & Byard 3360 Tremont Road, Second Floor Columbus, OH 43221
Mr. Bassel C. Korkor Arnold & Porter 555 Twelfth Street, N.W. Washington, DC 20004
Mr. Patrick T. Lewis Baker & Hostetler 1900 E. Ninth Street, Suite 3200 Cleveland, OH 44114
Mr. Majeed G. Makhlouf Taft, Stettinius & Hollister 200 Public Square Suite 3500 BP Tower Cleveland, OH 44114
Mr. Mark A. McGinnis Mr. Donald J. McTigue McTigue & McGinnis 545 E. Town Street Columbus, OH 43215
Re: Case Nos. 12-3916/12-4069, NE OH Coalition for Homeless, et al v. Jon Husted, et al Originating Case No. : 2:06-cv-00896
Dear Counsel,
The court today announced its decision in the above-styled cases.
Enclosed is a copy of the court's opinion together with the judgment which has been entered in conformity with Rule 36, Federal Rules of Appellate Procedure.

Case: 2:06-cv-00896-ALM-TPK Doc #: 336 Filed: 10/12/12 Page: 3 of 39 PAGEID #: 12458(3 of 39)
Yours very truly, Deborah S. Hunt, Clerk
Cathryn Lovely Deputy Clerk cc: Clerk of the U.S. District Court for the Southern District of Ohio Enclosures Mandate to issue.

Case: 2:06-cv-00896-ALM-TPK Doc #: 336 Filed: 10/12/12 Page: 4 of 39 PAGEID #: 12459(4 of 39)

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 12a0359p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________

No. 12-3916

X -

NORTHEAST OHIO COALITION FOR THE

-

HOMELESS; SERVICE EMPLOYEES

-

INTERNATIONAL UNION, LOCAL 1199,

,>

Plaintiffs-Appellees, OHIO DEMOCRATIC PARTY,
Intervenor Plaintiff-Appellee,

-

-

v.

-

-

JON HUSTED; STATE OF OHIO,

-

Defendants-Appellants. -

-

No. 12-4069

-

-

SERVICE EMPLOYEES INTERNATIONAL UNION -

LOCAL 1, et al.

-

Plaintiffs-Appellees,

-

-

v.

-

-

JON HUSTED,

-

Defendant-Appellant,

-

-

STATE OF OHIO,

-

Intervenor. N

Nos. 12-3916/4069

Appeal from the United States District Court for the Southern District of Ohio at Columbus. Nos. 2:06-cv-00896; 12:-cv-00562—Algenon L. Marbley, District Judge.

Argued: October 1, 2012

Decided and Filed: October 11, 2012 Before: GIBBONS and COOK, Circuit Judges; ROSENTHAL, District Judge*

*The Honorable Lee H. Rosenthal,United States District Judge for the Southern District of Texas, sitting by designation.
1

Case: 2:06-cv-00896-ALM-TPK Doc #: 336 Filed: 10/12/12 Page: 5 of 39 PAGEID #: 12460(5 of 39)

Nos. 12-3916/4069 NE OH Coal. for Homeless, et al. v. Husted, et al.

Page 2

_________________

COUNSEL

ARGUED: Steph en P . Carney, OFFICE OF THE OHIO ATTORNEY GENERAL,

Columbus, Ohio, for Appellants in 12-3916. DanieellLeonard, ALTSHULER BERZON

LLP, San Francisco, California, for Appellees in 12-3916. Aaron D. Epstein, OFFICE

OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant in 12-4069.

Danielle Leonard, ALTSHULER BERZON LLP, San Francisco, California, for

Appellees in 12-4069. Frederick D. Nelson, OFFICE OF THE OHIO ATTORNEY

GENERAL, Colum bus, Ohio, for Intervenor in 12-4069. ON BRIEF: Stephen P.

Carney, Peggy Corn, Aaron D. Epst ein, OFFICE OF THE OHIO ATTORNEY

GENERAL, Columbus, Ohio, for Appellantsin 12-3916. Danielle Leonard, Stephen P.

Berzon, Stacey Leyton, Barbara Chishol m, ALTSHULER BERZON LLP, San

Francisco, California, Caroline Gentry, Daniel B. Miller, PORTER, WRIGHT, MORRIS

& ARTHUR LLP, Dayton, Ohio, Subodh Chandra, THE CHANDRA LAWFIRM, LLC,

Cleveland, Ohio, Michael J. Hunt er, HUNTER, CARNAHAN, SHOUB, BYARD &

HARSHMAN, Columbus, Ohio, Donald J. McTigue, Mark A. McGinnis, McTIGUE

LAW GROUP, Col umbus, Ohio, for Appell ees in 12-3916. Aaron D. Epstein, Erin

Butcher-Lyden, Peter K. Glenn-App legate, OFFICE OF THE OHIO ATTORNEY

GENERAL, Columbus, Ohio, for Appellant in 12-4069. Danielle Leonard, Stephen P.

Berzon, Stacey Leyton, Barbara Chisholm , ALTSHULER BERZON LLP, San

Francisco, California, Michae l J. Hunter, Cathrine J. Harshm

an, HUNTER,

CARNAHAN, SHOUB, BYARD & HARSHMAN, Columbus, Ohio, for Appellees in

12-4069. Frederick D. Nelson, Richard N. Coglianese, Michael J. Hendershot, Stephen

P. Carney, OFFICE OF THE OHIO ATTO RNEY GENERAL, Colum bus, Ohio, for

Intervenor in 12-4069. Majeed G. Makhlouf, Joseph W. Boatwright, IV, CUYAHOGA

COUNTY DEPARTMENT OF LAW, Cleveland, Ohio, Bassel C. Korkor, ARNOLD

& PORTER LLP, Washington, D.C., Patrick T. Lewis, BAKER & HOSTETLER LLP,

Cleveland, Ohio, Elizabeth Petrela Papez, Eric M. Goldstein, WINSTON & STRAWN

LLP, Washington, D.C., for Amici Curiae in 12-4069.

_________________

OPINION _________________

PER CURIAM. These consolidated election law appeals present constitutional challenges to Ohio’s strict application of its disqualification rules for nonconform ing provisional ballots to those caused by poll-worker error, as well as issues involving the validity of a federal court’s c onsent decree that abrogates state law without finding violations of federal law. At issue are Ohio’s requirements that provisional ballots be cast in the correct precinct and with a completed voter affirmation, making no exception

Case: 2:06-cv-00896-ALM-TPK Doc #: 336 Filed: 10/12/12 Page: 6 of 39 PAGEID #: 12461(6 of 39)

Nos. 12-3916/4069 NE OH Coal. for Homeless, et al. v. Husted, et al.

Page 3

for wrong-precinct and deficient-affirmation ballots caused by poll-worker error. See O.R.C. §§ 3505.183(B)(4)(a)(ii)–(iii) and (B)(4)(b)(ii). Given the time-sensitive nature of these appeals with the November election approaching, we ordered expedited briefing and conducted a telephonic argument on October 1.
Appeal 12-3916 stems from the district court’s denial of the state’s m otion to vacate a 2010 consent decree that requires the counting of certain wrong-prec inct and deficient-affirmation provisional ballots where poll-worker error caused the nonconformity. Under the consent decree, this remedy applies only to voters that use the last four digits of their social security number (“SSN-4 voters”) for identification to cast their provisional ballots. The Ohio Secretary of St ate and the State (collectively “State defendants” or “State appellees”) both appeal this judgm ent. Appeal 12-4069 arises from the district court’s prelim inary injunction that requires the counting of all wrong-precinct and deficient-affirmation provisional ballots to remedy Ohio’s systemic exclusion of nonconforming ballots caused by poll-worker error. The Secretary contests only the deficient-affirm ation aspect of the prelim inary injunction; the State as intervenor-appellant challenges the injunction’s wrong-precinct rem edy. Absent the preliminary injunction or consent decree, Ohio would not count any wrong-precinct or deficient-affirmation provisional ballots, regardless of poll-worker error. See O.R.C. §§ 3505.183(B)(4)(a)(ii)–(iii) and (B)(4)(b)(ii).
For the following reasons, we sustain part of the preliminary injunction in appeal 12-4069, AFFI RMING the wrong-precinct rem edy and REVERSING the deficientaffirmation remedy. The district court’s judgment in No. 12-3916 is AFFIRMED, and the matter is REMANDED so that the district court may expeditiously address (1) the equal protection issue created by the consent dec ree’s provision for the counting of deficient-affirmation ballots by SSN-4 voters, and (2) a motion to modify the consent decree in light of the equal protection concerns raised by the consent decree’s differential treatment of provisional ballots.

Case: 2:06-cv-00896-ALM-TPK Doc #: 336 Filed: 10/12/12 Page: 7 of 39 PAGEID #: 12462(7 of 39)

Nos. 12-3916/4069 NE OH Coal. for Homeless, et al. v. Husted, et al.

Page 4

I. BACKGROUND
A. Facts Related to Appeal 12-3916: The Consent Decree
As the di strict court recognized, the consent decree arose from the “turbulent saga of Ohio’s provisional voting regi me” that began in 2006 whe n Ohio enacted comprehensive election reforms. (No. 2:12-CV-562, R. 67, Plenary Op. & Order at 2.) Because we previously detailed the consent decree’s history in Hunter v. Hamilton County Board of Elections, 635 F.3d 219, 223–24 (6th Cir. 2011), we review only the relevant parts.
In 2006, the Northeast Ohio Coalition for the Hom eless and the Service Employees International Union Local 1199 (collectively “NEOCH plaintiffs” or “NEOCH appellees”) filed suit against Ohio’s Secretary of State challenging numerous aspects of Ohio’s new voter-identification laws. After lengthy negotiations, the NEOCH plaintiffs settled their claims with then-Secretary of State Jennifer Brunner by entering into a consent decree. Though the consendt ecree stopped short of finding constitutional violations, it provided the following injunctive relief for SSN-4 voters: the State would not reject provisional ballots that, due to poll-worker error, were cast (1) in the wrong precinct but correct polling place, or (2) with nonconfor ming or incom plete ballot affirmations. (No. 2:06-cv-896, R. 210, Consent Decree ¶ 5(b)(v), (vi).) As explained in Hunter,
The consent decree, in effect, carved out an except ion for counting provisional ballots otherwise invalid under Ohio law if the deficiency was due t o poll-worker error—al beit a narrow one lim ited to those provisional ballots cast by a voter who uses the last four digits of his or her Social Security number as identification.
635 F.3d at 224. By its terms, the consent decree remains in effect until June 30, 2013 unless modified.
The State did not object to the consent decree’s remedy until the Ohio Supreme Court issued a 2011 decision holding that Ohio’s election laws offered no protections for wrong-precinct provisional ballotscaused by poll-worker error. State ex rel. Painter

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v. Brunner, 941 N.E.2d 782, 794 (Ohio 2011) (per curiam ). After Painter, the State defendants returned to di strict court seek ing to vacate the consent decree, citing a conflict between state law and the consent decree’s rem edies. Moreover, the State defendants argued that the consent decree was void ab initio because the Secretary of State lacked the unilateral authority to abrogate state law i n the absence of a federal constitutional vi olation. (Again, the consent decree did not find constitutional violations.) In the meantime, a different groupof plaintiffs, whose claims we will discuss next, challenged the consent decree’s preferential treatment of SSN-4 voters in separate litigation. Responding to this em erging issue, the NEOCH plaintiffs also m oved to modify the consent decree, seeking to expand its remedy to all provisional voters (not just SSN-4 voters) in order to prevent itdsisparate vote-counting standards fromcausing constitutional violations.
By opinion and order of July 9, 2012, th e district court denied the State defendants’ motion both on issue preclusion gorunds and on the merits. Specifically, the district court rejected the State defendants’ argum ent that the consent decr ee irreconcilably conflicted with state law, as pronounced in Painter and State ex rel. Skaggs v. Brunner, 900 N.E.2d 982 (Ohio 2008). CitingNorthridge Church v. Charter Twp. of Plymouth, 647 F.3d 606, 614 (6th Cir. 2011), the district court al so held that Federal Rule of Civil Procedure 60(b) governed the State defendants’ motion to vacate the consent decree. Because State defendantsfailed to show that the consent decree was no longer necessary to prevent constitutional violations, the district court held that they had not shown gr ounds for relief under Rule 60(b)(4) and (b)(5). The district court withheld judgment on the NEOCH plaintiffs’motion to expand the consent decree at this time.
The State defendants tim ely appealed. The Ohi o Dem ocratic Party, which intervened as a co-plaintiff at the district ocurt, joins the NEOCH plaintifs as appellees.

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B. Facts Related to Appeal 12-4069: The Preliminary Injunction

On J une 22, 2012, several unions and a com

munity organizing group

(collectively the “SEIU plaintiffs” or “SEIU appellees”) 1 f iled suit against Ohio’s

current Secretary of State Jon Hus ted, as well as m embers of the Cuyahoga County,

Franklin County, and Hamilton County Boards ofElections. The SEIU plaintiffs allege

that Ohio Rev. Code §§ 3505.183(B)(4)(a)(ii)–(iii) and (B)(4)(b)(ii), as interpreted by

the Ohio Suprem e Cour t, autom atically disqualified wrong-precinct and deficient-

affirmation provisional ballots, despite evidence that poll-worker error caused the ballot

deficiencies. According to the SEIU plai ntiffs, Ohio’s strict application of t he

disqualification rules to ballot deficiencies caused by poll-worker error violated, inter

alia, the Fourteenth Am endment’s Equal Prot ection and Due Process Clauses. The

SEIU plaintiffs also alleged that the co nsent decree’s preferential treatment of SSN-4

voters’ wrong-precinct and deficient-affirmation ballots violated equal protection. The

SEIU plaintiffs moved for a preliminary injunction, arguing that the relevant statutory

provisions im permissibly burdened the funda mental right to vote without serving

sufficient s tate interests. To rem edy th is problem , the SEIU plaintiffs proposed

“remaking” wrong-precinct provisional ballots to count onl y “up-ballot” votes—i.e.,

votes in eligible races.

The district court held an evidentiary hearing on July 30, 2012, and issued its preliminary i njunction on August 27, 2012. As necessary for the issuance of a preliminary injunction, the court’s 58-page Plenary Opinion and Order as sessed the SEIU plaintiffs’ likelihood of success on the merits of their constitutional claims, as well as the equitable factors necessary for injunctive relief: irreparable harm, harm to others,

1The plaintiffs consisted of the Service Employees International Union, Local 1; the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy,Allied Industrial and Service Workers International Union; the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, including Locals 863 and 1005; and the Ohio Organizing Collaborative.

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and the publ ic interest. The court prem ised injunctive relief upon three likely equal protection violations and a likely due process violation.2
1. Equal Protection: Wrong-Precinct Ballots Caused by Poll-Worker Error
Beginning with the SEIU plaintiffs’ wrong-precinct ballots claim, the court found reliable evidence that Ohio’s county election boards disqualified thousands of wrongprecinct ballots in each of Ohio’s three m ost recent elections. Specifically, the court found that Ohio rejected more than 14,000 wrong-precinct ballots in 2008 and 11,000 more in 2010, with wrong-precinct rejections occurring in the vast m ajority of Ohio counties. (Plenary Op. & Order at 26 & n.28, 27 (counting 14,335 wrong-precinct rejections in 2008 and 11,775 in 2010).) Andin the mid-cycle election of 2011, which involved no federal races, Ohio kept specifci data regarding right-place/wrong-precinct ballots revealing that Ohio disqualified m ore than 1,800 such ballots. But for the consent decree entered in the NEOCH litigation, Ohio would have disqualified another 1,500 such ballots. ( Id. at 25–26 (f inding that Ohio disqualif ied 1,826 of 3,380 right-place/wrong-precinct ballots in 2011).) This data led the court to conclude that “[w]hile the num ber and frequency of wrong-precinct ballot disqualifications vary county to county, the problem as a whole is systemic and statewide.” (Id. at 26.) The court noted that “[m]uch of the factual basis upon which the Court relies for its findings is uncontested, or has already been established by this Court or the courts in [theHunter litigation].” (Id. at 25.)
Though the Secret ary di d not dispute the accuracy of these statistics, it challenged their relevance in light of recent efforts to improve Ohio’s provisional ballot system. The Secretary also argued that reasons other than poll-worker error may have caused some of the wrong-precinct ballots. The district court rejected these arguments, citing the failure of previous state directiv es and the absence of evidence that voters disobeyed poll-worker instructions regarding voting precincts. “No pa rty,” it stated,
2The district court rejected the SEIU plaintiffs’ third equal protection claim asserting a greater burden on voters in m ore populou s urban counties, finding insufficient evidence that Ohio’s disqualification of wrong-precinct ballots disproportionately affects voters in those counties. The SEIU appellees do not contest this finding.

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“has identified a single example, from the past four years’ elections, of a wrong-precinct provisional ballot being cast because the voter refused to vote in the correct precinct.” (Id. at 29.) Invoking poll workers’ statutory m andate to direct voters to the correct precinct and inform them that wrong-preci nct votes will not count, see O.R.C. § 3505.181(C)(1), the district court reasoned, “It is common sense that no rational voter who arrives at the correct polling place would everrefuse to cast a provisional ballot in the correct precinct . . . .” (Plenary Op. &Order at 29.) “Based on the record evidence provided t hus far,” the court concluded th at “Plaintif fs ha[ d] established a strong likelihood that thousands of lawfully-registered voters will be completely deprived of their right to vote under Ohio Rev. Code § 3505.183(B)(4)(a)(ii) in the upcom ing election because of poll-worker error.” (Id. at 30.)
Deeming this burden “arbitrary,” “irreversible,” and “severe,” the court proceeded to weigh the state interests jutsifying the automatic disqualification of wrongprecinct provisional ballots under the balancing test set forth inAnderson v. Celebrezze, 460 U.S. 780, 789 (1983), andBurdick v. Takushi, 504 U.S. 428, 434 (1992). To justify the autom atic-disqualification rule, the Secretary relied on the “significant and numerous” advantages of the precinct voting system articulated in Sandusky County Democratic Party v. Blackwel l, 387 F.3d 565, 569 (6th Cir. 2004) (per curiam ): (1) capping the number of voters at a pollinglocation; (2) limiting the precinct ballot to the applicable federal, state, and local elections a citizen m ay vote in, which has the result of (3) m aking the precinct ballot less confusing; ( 4) sim plifying election administration and oversight, so as to minimize election fraud; and (5) enabling the state to place polling locations closer to voter residences. The court deemed the first, third, and fifth Sandusky factors inapposite, because the autom atic-disqualification rule affected voters who arrived at the right polling location and did nothing t o ma ke provisional ballots l ess confusing. The second Sandusky factor—limiting precinct ballots to eligible races—som ewhat justified the disqualificat ion of wrong-precinct ballots in the court’s view, inasmuch as the State has an interest in preventing ineligible voters from casting votes in the wrong races. But because the SEIU plaintiffs sought to “remake” wrong-precinct ballots to count only “up-ballot” votes—a practice the court

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noted had be en e mployed by the consent decree since 2010—the court found no likelihood of vote dilution or detrimental effect on the precinct voting system. Finally, the court rejected for lack of evidence th e Secretary’s purported interest in election administration, monitoring, and recordkeeping. Citing dicta from this court’s decision in Hunter, see 635 F.3d at 243 (expresing “substantial constitutional concerns regarding [Ohio’s] invalidation of votes cast in the wrong precinct due solely to poll-worker error”), the district court concluded that the SEIU plaintif fs “have submitted reliable, uncontroverted evidence demonstrating that a discrete class of prospective voters will be severely burdened by [t he disqualification of wrong-precinct provisional ballots caused by poll-worker error].” (Plenary Op. & Order at 39–40.)
In addition to its Anderson/Burdick balancing, the district court found Ohio’s disqualification of right-place/wrong-precinctprovisional ballots to constitute invidious discrimination because the restriction bore no relation to those voters’ qualifications. See, e.g., Harper v. Va. Bd. of Elections, 383 U.S. 663, 666–67 (1966). Though Ohio’s disqualification rule differed fromthe “archetypal case of an invidious restriction”—the poll taxes at issue in Harper—the district court reasoned that “[l]ike poll taxes . . . any rational basis for rejecting wrong-precinct ballots of registered voters due to poll-worker error is equally unreasonable,” because the restriction “is unrelated to the prospective Plaintiffs’ voter qualifications.” (Plenary Op. & Order at 41.)
2. Equal Protection: Deficient-Affirmation Ballots Caused by Poll-Worker Error
Turning to the SEIU plaintiffs’ claimregarding deficient-affirmation ballots, the court cited 2011 election data showing thatOhio rejected 568 provisional ballots due to such technical deficiencies as “a missing or misplaced printed name or voter signature, or the voter’s signature was deemed not to match the exemplar on file with the Board.” (Id. at 43.) The court attributed these deficiencies to poll-worker error “because it is the poll worker’s duty to ensure that provisional ballots are cast with a validly completed ballot envelope and affirmation.” (Id. (citing O.R.C. §§ 35051.81(B)(2)–(3), 3505.182).) Still, the court conceded that the class of affected voters “is likely to be signif icantly smaller” than the right-place/wrong-precinctballots, and that the burden on these voters

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“is arguably less severe” because “the individual voter has a greater degree of control over whether the ballot envelope contains the required elements.” (Id. at 44.) While it could not “quantify the precise magnitude ofthe burden imposed by this law’s restriction on the class of affect ed voters,” it deem ed the State’s interests—the sam e Sandusky factors discussed above— insufficient to support the restriction under the Anderson/Burdick test. (Id. at 44–45.)
The Se cretary argued that new directives, especially Directive No. 2012-01, mitigated the burden on these voters, but the district court disagreed, stating that the directive “instructs boards of elections that provisional ballots are not to be rejected only where thepoll worker fails to fill out his or her portoi n of the provisional envelope.” I(d. at 45.)
3. Equal Protection: The Consent Decree’s Preferential Treatment of SSN-4 Ballots
Next, the district court agreed with the SEIU plaintif fs that Ohio’s differential treatment of wrong-precinct ballots, depending onthe form of identification used to cast the ballot, violated equal protection. Recognizing that the NEOCH consent decree provided a different vote-counting standard for SSN-4 provional ballots (allowing a chance to prove poll-worker error and have the vote counted) and all other provisional ballots (not), the court inquired whether state interests justified the preferential treatment. The State—by now seeking tovacate the consent decree—offered none, and the court agreed, finding “[t]here is no reaosn for treating provisional ballots differently based on the type of identification used.” (Id. at 49.)
4. Due Process: Wrong-Precinct Ballots Caused by Poll-Worker Error
Last, the court adopted dicta from t he post-rem and judgm ent in the Hunter litigation that Ohio’s strict disqualification of deficient ballots, regardless ofpoll-worker error, rendered the election system “fundamentally unfair,” in violation of due process. See Hunter v. Hamilton Cnty. Bd. of Elections , 850 F. Supp. 2d 795, 847 (S.D. Ohio 2012). Relying on the sam e evidence discussed in the equal protection claim s, the

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district court found a strong likelihood that the SEIU plaintiffs would prevail on the due process claim.

5. Injunctive Reli ef & Staying the NEOC H Plaintiffs’ Motion to Modify the Consent Decree

Having found a likelihood of success on the merits of these claims, the district court determ ined that the equitable factors favored the issuance of a prelim inary injunction. Accordingly, the court granted a prelim inary injunction requiring the counting of wrong-precinct and deficient-affirmation provisional ballots, unless the State could prove that the poll worker properly a dvised t he vot er to cas t the ballot in the correct precinct and the voter refused. Having granted t he br oader relief of the preliminary injunction in the SEIU litigation, the district court stayed t he NEOCH plaintiffs’ motion to expand the consent decree in the NEOCH litigation, deeming that issue moot so long as the preliminary injunction remained in effect.

The Secretary now appeals the deficient-affirmation aspect of the preliminary injunction, and the State intervenesto appeal the wrong-precinct remedy.3 The Citizens

Reform Association of Cuyahoga County and individual voters appear as am

ici

(collectively “CRACC amici”) in favor of the State appellants, 4 and Common Cause

Ohio, Cuyahoga County, and the League of Women Voters of Ohio appear as amici for

the SEIU appellees. W e have jurisdiction to hear both of these appeals. 28 U.S.C.

§ 1292.

3Alternatively, the State prem aturely filed a sepa rate appeal (12-4070) of the district court’s preliminary injunction prior to becoming a party in the matter. We dismissed that appeal, but granted the State’s motion to intervene in appeal 12-4069.
4CRACC amici previously attempted permissive intervention in the dsitrict court and intervention as of right in appeal 12-4069. The district courtruled their application untimely, and CRACC amici have appealed that ruling. (Appeal 12-4079.) Because that appeal remains pending and is the proper avenue to address the intervention arguments raised in the district court, we denied their motion to intervene on appeal and permitted their alternative request to file amicus briefs.

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II. SCOPE OF PRELIMINARY INJUNCTION: THE WRONG-PRECINCT REMEDY
Before we m ay assess the propriety of the prelim inary injunction, we m ust resolve a dispute over the scope of its re lief for wrong-precinct ballots. The district court’s plenary opinion and order required th e Se cretary to instruct Ohio’s county election boards not to reject provisional ballots “cast . . . in the wrong precinct, unless the poll worker who processed the voter’s provisional ballot” directed the voter to the correct precinct, informed the voter of theramifications of casting a wrong-precinct vote (disqualification), and the voter nevertheless insisted on casting the ballot in the wrong precinct. (Plenary Op. & Order at 56–57.) The SEIU appellees read thi s remedy to apply to all wrong-precinct ballots, regardlessof whether the voter cast his or her ballot at the correct polling l ocation. The State counters that the rem edy applies only to provisional ball ots cast at the correct polling place, citing the district court’s later clarifying orders. The Secretary, who does not appeal this aspect of the prelim inary injunction, ostensibly adopted the State’s position on the scope of the pr eliminary injunction in Directive Num ber 2012-44, noting that the injunction’s wrong-precinct remedy applied only to “ballots cast in the correct polling place but wrong precinct.” See SOS Directive No. 2012-44 (r eferring to the affected ballots as “Right Church/Wrong Pew” ballots). With one small caveat, we agree with the State.
The State correctly notes that significant portions of the district court’s opinion specifically address the right-place/wrong-precinct problem. For instance, the district court’s burden analysis cites statistics for right-place/wrong-precinct provisional ballots cast during the 2011 general election, concludingthat “[t]here is, then, a high statistical probability that in the upcom ing election thousands of lawfully-registered voters will arrive at the correct polling place only to receive a provi sional ballot from the poll worker for the wrong precinct.” (Plenary Op. & Order at 26.) 5 Elsewhere, the court states that “[t]he evidence further confirm s that, of the thousands of r ejected wrong-
5The statistics frompriorelections do not distinguish between right-place/wrong-precinct ballots and wrong-p lace/wrong-precinct ballots because “ [t]he Secretary did not begin requiring Boards to separately report [those num bers] until the 2011 genera l election.” (Plenary Op. & Order at 2 6 n.27 (citation omitted).)

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precinct/correct location provisional ballots, the vast majority will be disqualified as a result of poll-worker error.” (Id. at 28–29.) And later on in its invidiousness analysis, the court notes that “[t]he Plaintiffs sue on behalf of registered voters who arrive in the correct polling place, and only through an inter vening error violate the precinct requirement.” (Id. at 41.)
Admittedly, the SEIU plaintif fs did not conf ine their requested relief to rightplace/wrong-precinct provisional ballots. (See R. 63, SEIU Pls.’ Second Am. Compl. at 35–36; R. 4, Mot. Prelim . Inj. at 4–5.) And certain aspects of the district court’s opinion appeared to follow this lead—na mely, the court’s sum mary of the SEIU plaintiffs’ requested relief and the court’s “order” of “Appropriate Injunctive Relief.” (Plenary Op. & Order at 12, 56–57.) But if any doubt rem ained, the district court’s framing of its equal-protection analysis settles the matter: “It is the particular burden imposed by Ohio’s prohibition of wrong-precincbt allots on the rights of a ‘discrete class of prospective voters’—those whoarrive at thecorrect polling placebut are misdirected due to poll-worker error—against which the Satte’s asserted interests must be weighed.” (Id. at 34 (em phasis added) (citation om itted); see also id. at 37 n.56 (weighing state interests in disqualifying right-place/wrong-precinct provisional ballots).)
Two additional pieces of extrinsic evidencesupport this view. First, the district court issued three post-injunction orders—two scheduling orders and an order granting the State’s m otion to intervene—that char acterized the prelim inary injunction’s wrong-precinct remedy as extending no further than ballots m iscast from the correct polling place. Second, the SEIU appellees conceded at oral argument that they never sought to have wrong-county provisional ballotscounted, but that would be the practical effect of granting their interpretation of the district court’s wrong-precinct remedy.
Rather than presume the district court intended a “vote anywhere” remedy, we take the court at its word that it considered the constitutionality of the State’s disqualification of right-place/wrong-precinct provisional ballots. We therefore read the district court’s wrong-precinct remedy to encompass only those votes. Consequently,

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our rem aining discussion of wrong-precinct ballots and the wrong-precinct rem edy addresses only right-place/wrong-precinct provisional ballots.6
We do note, however, that the State’s interpretation fails to account for provisional ballots cast at the county boards of election. Because Ohio law authorizes the casting of provisional ballots at the county boards, see O.R.C. § 3505.181(C)(2) (disqualifying certain provisional ballots where “the individual refuses to travel to the polling place for the correct jurisdictionor to the office of the board of electionsto cast a ballot” (emphasis added)), we see no reason to distinguish these right-place/wrongprecinct pr ovisional ballots from those cast at precinct polling locations. In both instances, the voter appears at a state-authorized polling location, but the alleged pollworker error results in the casting of a wor ng-precinct provisional ballot. Accordingly, we assume the district court’s wrong-per cinct remedy includes these right-place/wrongprecinct provisional ballots.
III. THE PRELIMINARY INJUNCTION (Appeal 12-4069)
A. Standard of Review
Our review focuses on the four factor s a plaintiff m ust establish to receive injunctive relief:
(1) whether the movant has a strong likelihood of success on the merits; (2) whether the m ovant would suffer irreparable injury without the
injunction; (3) whether issuance of the injunction would cause substantial har m to
others; and (4) whether the public interest would be s erved by the issuance of the
injunction.
Hunter, 635 F.3d at 233 (quoting Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 542 (6th Cir. 2007)). Athe preliminary injunction stage,

6Our ruling does not preclude the SEIU appelleesor others from seeking broader relief forpollworker-induced wrong-place/wrong-precinct provisional ballots upon a showing that Ohio’s law unconstitutionally burdens those voters’ rights. As those issues are not before us, we express no view on their merits.

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“a plaintiff must show more than a mere possibility of success,” but need not “prove his case in full.” Certified Restoration Dry Cleaning Network, 511 F.3d at 543 (citations omitted). “[I]t is ordinarily sufficient if the plaintiff has raised questions going to the merits so serious, substantial, difficult, and doubtful as to make them a fair ground for litigation and thus for more deliberate investigation.” Six Clinics Holding Corp., II v. Cafcomp Sys., Inc., 119 F.3d 393, 402 (6th Cir. 1997) (citation omitted).
The State argues for a higher eviden tiary burden, characterizing the SEIU plaintiffs’ claim s as pr esenting only a facial attack on Ohio Rev. Code §§ 3505.183(B)(4)(a)(ii)–(iii) and (B)(4)(b)(ii). No doubt, certain aspects of the SEIU plaintiffs’ Second Amended Complaint appear to present facial challenges, but others advance as-applied challenges focusing on these statutes’ failure to make exception for poll-worker error. ( See SEIU Pls.’ Second Am . Com pl. ¶¶ 79, 82 (challenging the State’s rationale for excluding wrong-precinct and deficient-affirmation ballots caused by poll-worker error).) W e read the district court’s opinion as sustaining these asapplied claims and therefore limit our review accordingly.
Though we consider the ultim ate decision to issue the injunction under a deferential abuse-of-discretion standard, we assess the underlying legal conclusionsde novo and factual findings for clear error. Obama for America v. Husted , — F.3d —, Nos. 12-4055/4076, slip op. at 6 (6th Cir. 2012). Consequently, we give fresh review to the district court’s legal conclusions regarding a plaintiff’s likelihood of success on the merits. Id. at 7; Hunter, 635 F.3d at 233. An injunction “will seldom be disturbed unless the district court relied upon clearly erroneous findings of fact, im properly applied the governing law, or used an erroneous legal standard.”Mascio v. Pub. Emps. Ret. Sys. of Ohio, 160 F.3d 310, 312 (6th Cir. 1998).
B. The Wrong-Precinct Ballots
1. Likelihood of Success on the Merits
The district court identif ied three st rands of likely constitutional violations related to the wrong-precinct ballots as rqeuiring injunctive relief: the unreasonableness

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and fundam ental unfairness of disqualifying wrong-precinct ballots caused by pollworker error (equal protection and due process,) and the disparate treatment of deficient provisional ballots under the consent decree (equal protection). Having reviewed the record afresh, we agree on all counts.
a. Equal Protection & Disqualification Despite Poll-Worker Error
Our Constitution accords special protection for the fundamental right of voting, Harper, 383 U.S. at 670, recognizing its essential role in the “ preservati[on] of all rights,” Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). Because“[o]ther rights, even the most basic, are illusory if the right to vote is underm ined,” Wesberry v . Sanders , 376 U.S. 1, 17 (1964), “‘[t]he right to vote is portected in more than the initial allocation of the franchise. Equal protection applies as well to the amnner of its exercise,’”League of Women Voters v. Brunner, 548 F.3d 463, 477 (6th Cir. 2008) (quotingBush v. Gore, 531 U .S. 98, 104 (2000)). A t the sam e tim e, the C onstitution vests states w ith the authority to prescribe “[t]he Times, Places and Manner of holding Elections for Senators and Representatives.” U.S. Cons t. Art. I, § 4, cl. 1. “[W ]hen a state election law provision imposes only ‘reasonable, nondiscriminatory restrictions’ upon the First and Fourteenth Amendment rights of voters, ‘the State’s important regulatory interests are generally suf ficient to justif y the restrictions.” Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 788). When equal protection challenges ask us to resolve these competing interests, we calibrate the equal protection standard to “[t]he precise character of the state’s action and the nature of the burden on voters.” Obama for America, Nos. 12-4055/4076, slip op. at 8 (citingBiener v. Cailo, 361 F.3d 206, 214 (3d Cir. 2004) for the proposition that “[t]he scrutiny test de pends on the [regulation’s] effec t on [the plaintiff’s] rights.”).
While a rational basis standard applies tostate regulations that do not burdenthe fundamental right to vote, strict scrutiny a pplies when a state’s restriction im poses “severe” burdens. Id. (citing McDonald v. Bd. of Election Comm’rs, 394 U.S. 802, 807–09 (1969) and Burdick, 504 U.S. at 434). For the majority of cases falling between these extremes, we apply the “flexible” Anderson/Burdick balancing test. Id.; see also

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Crawford v. Marion Cnty. Election Bd,.553 U.S. 181, 189–91 (2008) (Stevens, J., joined by Roberts, C.J., and Kennedy, J., announcing the judgm ent of the Court); id. at 211 (Souter, J., joined by Ginsburg, J., dissenting).
The State defendant, intervening as appellant, resists this standard, arguing that Ohio’s automatic-disqualification rule for wrong-precinct ballots treats all voters equally and therefore does not “involve any classification that could violate the equal protection standard.” But the State overlooks the fact that a clear majority of the Supreme Court in Crawford applied som e form of Burdick’s burden- measuring equal protection standard to Indiana’s facially neutral voter-identification requirement. See 553 U.S. at 189–91 (Stevens, J., announcing the judgment of the Court), 204 (Scalia, J., joined by Alito and Thomas, JJ., concurring in the judgment) (“To evaluate a law respecting the right to vote—whether it governs voter qualifciations, candidate selection, or the voting process—we use the approach set out in Burdick . . . .”), 211 (Souter, J., dissenting). Because the SEIU plaintiffs “demonstrated that their right to vote is . . . burdened by” Ohio’s law that rejects wrong-precinct ballots regardless of pol l-worker error, “[t]he Anderson-Burdick standard . . . applies.” Obama for America, Nos. 12-4055/4076, slip op. at 10 (rejecting Ohio’s a ttempt to lim it the Anderson/Burdick test to First Amendment free association claims and Fourteenth Amendment due process claims).
Following the Anderson/Burdick test,
[we] must weigh “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Am endments that the plaintiff seeks to vindicate” against “the precise interests put forward by the State as justifications for the burden imposed by its rule,” taking into consideration “the extent to which those interests make it necessary to burden the plaintiffs’ rights.”
Burdick, 504 U.S. at 434 (quotingAnderson, 460 U.S. at 789)). “There is no litmus test to separate valid frominvalid voting regulations; courts must weigh the burden on voters against the state’s asserted justifications and make the hard judgment that our adversary system dem ands.” Obama for America , Nos. 12-4055/4076, slip op. at 9 (internal

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quotation marks omitted) (quoting Crawford, 553 U.S. at 190 (Stevens, J., announcing the judgment of the Court)).
i. The Burden on Provisional Voters
Here, the district court identified a subtsantial burden on provisional voters. The court’s factual findings detail Ohio’s “systme ic” disqualification of thousands of wrongprecinct provisional ballots and a strong likelihood that the m ajority of these m iscast votes result frompoll-worker error. Torecap, Ohio tossed out more than 14,000 wrongprecinct ballots in 2008 and 11,000 more in 2010, with such rejections occurring across the state. And in the m id-cycle election of 2011, Ohio disqualif ied more than 1,800 right-place/wrong-precinct ballots—1,500 f ewer than it w ould have rejected in the absence of NEOCH consent decree.7 Like the Secretary before the district court, the State intervening as appellant does not contest the accuracy of this data, but emphasizes that wrong-precinct ballots make up a small percentage of the total votes cast. (State Br. at 12 (explaining that wrong-precinct ballots made up 0.248% of the ballots cast in the 2008 election, with right-place/wrong-precinct ballot s com prising an even sm aller share).)
Though the district court did not m ake specific fact ual findings regarding the incidence of poll-worker error, it found sucherror evident in poll workers’ statutory duty to direct voters to the correct polling place.See O.R.C. § 3505.181(C)(1).8 As the State
7These findings regarding the statewide disqualification of wrong-precinct ballots amplify the countywide evidence established in Hunter. See Hunter , 635 F.3d at 237 (recognizing 269 rightplace/wrong-precinct ballots in the November 2010 election for Hamilton County Juvenile Court Judge).
8This provision states:
If an individual declares that the individual is eligible to vote in a jurisdiction other than the jurisdiction in which the individual desires tovote, or if, upon review of the precinct voting location guide using the residential street address provided by the individual, an election official at the polling place at which the individual desires to vote determines that the i ndividual is not eligible to vote in that jurisdiction, the election official shall [1] direct the individual to the pollingplace for the jurisdiction in which the individual appears to be eligible to vote, [2] explain that the individual may cast aprovisional ballot at the current location but the ballot will not be counted if it is cast in the wrong precinct,and [3] provide the telephone number of the board of elections in case the individual has additional questions.
O.R.C. § 3505.181(C)(1) (emphasis and brackets added).

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acknowledges, Ohio law requires poll workers to “de termine whether an individual is eligible to vote in a specif ic precinct, and direct them to the precinct in which ‘the individual appears to be e ligible to vot e.’” (State Br. at 12 (quoting O.R.C. § 3505.181(C)(1)).) See also Hunter, 635 F.3d at 243 (“Ohio has created a system in which state actors (poll workers) are giventhe ultimate responsibility of directing voters to the right location to vote.”). The court also cited the proliferation of multi-precinct polling locations in Ohio’s counties as i ncreasing the likelihood of poll-worker error causing right-place/wrong-precinct ballots. S( ee Plenary Op. & Order at 6 n.10 (finding, as of the 2012 primaries, shared-polling place rates for the following counties’ election precincts: Butler, 95%; Cuyahoga, 94%; Greene, 100%; Franklin County, 68%; Lorain, 90%; Montgomery, 88%; Stark County, 71%).)
In addition to these findings, the SEIUplaintiffs presented voluminous evidence that poll workers give voters wrong-precinc t ballots for a number of reasons, ranging from misunderstanding counties’ precinct location guides to failing to understand the vote-disqualifying ramifications of handing out wrong-precinct ballots. This recent sample of Franklin County’s precinct location guide, which shows how different house numbers on the same street end up in differnet precincts, almost at random, demonstrates how easily poll workers can make mistakes under the pressures of election day.

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(R. 13-12 at 9.) The Secretary failed to present evidence to the district court that other
factors besides poll-worker error caused wrong-precinct ballots, and the State offers
none now. Given this record and the clearlegal duty imposed on poll workers by Ohio
law, the district court deduced:
As a matter of law, if a person cas ts a provisional ballot in the wrong precinct, it is always going to be due to poll-worker error unless the poll worker has instructed the individual where the correct polling location is and that individual “refuses to travel to the polling place for the correct [precinct] or to the office of the boardof elections to cast a ballot.” Ohio Rev. Code §§ 3505.181(C)(2), 181(E)( 1). Such an act would be an irrational and futile exercise by the voter, because, as required by Ohio Rev. Code § 3505.181(C)(1), the poll worker must first inform him that if he insist s on voting in the wrong precinct, his ballot will not be counted.

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(Plenary Op. & Order at 8.) Because the Sat te offers no evidence of alternative causes, we find no clear error wi th t he district c ourt’s factual conclusion that m ost rightplace/wrong-precinct ballots result, and will continue to result, frompoll-worker error.9
The application of Ohio Rev. Code §§ 3505.183(B)(4)(a)(ii) and (B)(4)(b)(ii) to right-place/wrong-precinct ballots caused by poll-worker error effectively requires voters to have a greater knowledge of their precintc, precinct ballot, and polling place than poll workers. Absent such om niscience, the State will perm anently reject their ballots without an opportunity to cure the situation. The m ere fact that these vot ers cast provisional ballots does not justify this additoinal burden; as the district court explained, Ohio law now requires thirteen different caet gories of voters to cast provisional ballots, ranging from individuals who do not have anacceptable form of identification to those who requested an absentee ballot or whose sginature was deemed by the precinct official not to m atch the nam e on the registration form s. See Ohio Rev. Code § 3505.181(A)(1)–(13).
ii. The State’s Interests: Sandusky Factors
Faced with this burden on voters, the State falls back on the sam e Sandusky factors rejected by the district court. Firs t, t he State objects to the district court’s conclusion that the f irst Sandusky factor—capping the num ber of voters at a polling place—does not support disqualifying right-place/wrong-precinct ballots. We find no

9We note that the Secretary, in im plementing the district court’s wrong-precinct rem edy, has prescribed a new election form for poll workers to doc ument recalcitrant voters that refuse to go to the correct polling location: SOS Form 12-D. This form , known as the “Provisional Voter Precinct Verification Form,” identifies five steps that poll workers must take “whenever a voter’s name does not appear in the sig nature poll book or poll list, the vot er is in the wrong precinct of the correct m ultipleprecinct polling place and the voter insists on casting a provisional ballot in the wrong precinct.” First, the poll worker must “[f]ind the voter’s address in the Voting Location Guide.” At steps two and three, the poll worker must record the voter’s correct precinct and the address of the correctpolling place on the form. The last two steps invol ve instructing the voter to go to the correct precinct to cast a provisional ballot and informing the voter that casting a wrong-precinct ballotat the current location will result in the disqualification of the ballot. If th e voter still insists on casting a ballot in the wrong precinct after receiving this advice, thenthe poll worker will complete the form’s affirmation “under penalty of election falsification” to document that the voter disregardedthe advice provided in the five steps. The poll worker will then attach the completed form to the miscast ballot for purposes of verification. The county board of election will reject the miscast ballot if the poll worker directed the voter to the correct precinct.
We do not view this measure as alleviating the SEIU plaintiffs’ burden of establishing a likely constitutional violation, but we do find it relevant to weighing the state’s asserted interests in preserving its strict disqualification rules in the face of SEIU’s poll-worker-error claims.

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error here. By definition, right-place/wrong-precinct ballotsare cast at the right polling location, demonstrating that these voters attempted to comply with the State’s precinct requirement. Of course, if a recalcitrantvoter insists on casting a wrong-precinct ballot after making the effort to arrive at the correct polling place, the State would have a strong interest in rejecting that non-compliant vote. But the State offers no evidence or logical support for this phenom enon, while the SEIU pl aintiffs provided substantial evidence of poll-worker error.
As for the second and thirdSandusky factors, the State argues that it has a strong interest in limiting precinct ballots to eligible races, which facilitates the administration of elections and sim plifies t he ba llot for voters. No disagreem ent there, but these interests do not justify the precise restriction challenged here: the exclusion of wrongprecinct ballots caused by poll-worker error. Additionally, the State asserts “an interest in avoiding a circumstance in which voters are in effect given the option of surrendering their right to vote in ‘down ballot,’ precinct-specific races in exchange for the ability to cast ‘up ballot’ votes in a (perhaps less busy)precinct other than their own.” (State Br. at 48.) Again, the State offers no evidence for this speculation. We have no reason to think that voters, who will be correctly advised by poll workers about their assigned precinct, see O.R.C. § 3505.181(C)(1) and SOS Directive No. 2012-441,0 will opt to roll the dice in a less busy precinct on pain of having their votes disqualified. The State offers no reason to think that the district court’s limited relief for the narrow class of right-place/wrong-precinct ballots caused by poll-worker error—which has no effect on the design of precinct ballots—will undermine Ohio’s precinct system or make ballots more confusing.
Turning to the fourth Sandusky factor, the State claims that the district court’s remedy makes it more difficult to monitor the voting process and prevent election fraud. According to the State,

10The new election formprescribed by the Secretary, From 12-D, further decreases the likelihood that opportunistic voters will engage in precinct-shopping, because voters will actually see poll-workers documenting non-compliance with poll-worker instructions.

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moving toward a system in which (absent new and affirm ative evidentiary “verificati on” actions by the boards) the total potential number of provisional ballots that m ust be count ed is not capped by reference to the number of registered voters assigned to a given precinct, or capable of estimation at any tim e until af ter the polls have closed would, almost by definition, make it more difficult for elections officials to monitor and keep up with the voting process.
(State Br. at 50.) Not only will the injunction make it more difficult to administer the election on election day, the State argues, butit will make it more difficult for the State to comply with the federal safe harbor deadline for Presidential electors, December 11, 2012. See 3 U.S.C. § 5; O.R.C. § 3515.041. Beyontdhese administrative burdens, amici CRACC movants suggest that the district court’s remedy opens the door to more pollworker error, which will result in the di lution of proper votes via the counting of ineligible votes. We find neither argument persuasive.
First, the record does not support the State’s fear that the district court’s limited remedy will increase the number of voters attempting to cast votes at the wrong polling location or facilitating voter fraud. Barring substantial num bers of recalcitrant voters insisting on casting wrong-precinct votes—again, a phenomenon not supported by the record or logic—the district court’s limited remedy should not burden poll workers with longer lines or tax county boards with an unmanageable number of ballot verifications after election day. Second, neither the Stat e nor am ici present evidence that county boards err in remaking wrong-precinct ballots to count only votes in “up-ballot” races, despite the fact that county boards have followed the practice since the adoption of the consent decree in April 2010. The State’s chifeelection official, who adopted Directive No. 2012-44 and Form 12-D, apparently believes that poll workers and county boards can both implement the district court’s injunctive relief and performtheir other election duties within the time allotted.
iii. Conclusion
In sum , while the Sandusky f actors ref lect a state’s legitim ate interests in maintaining a precinct-based election syst em, the St ate does not show how these interests support the specific restriction challenged here: the summary rejection of poll-

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worker-induced right-place/wrong-precinct ballots. Because the State fails to identify precise interests justifying this substantial burden, we agree with the district court that the SEIU plaintiffs have shown a likely equal protection violation.
b. Due Process & Disqualification Despite Poll-Worker Error
The voter burden identified by the SEIU plaintiffs likewise supports the district court’s finding of a probable due process vi olation. The Due Process Clause protects against extraordinary voting restrictions that render the voting system “fundamentally unfair.” See, e.g., Warf v. Bd. of Elections of Green Cnty., Ky. , 619 F.3d 553, 559 (6th Cir. 2010); League of Women Voters, 548 F.3d at 478. “[G]arden variety election irregularities” do not rise to that level, Griffin v. Burns, 570 F. 2d 1065, 1076 (1st Cir. 1978), but substantial changes to state election procedures and/or the implementation of non-uniform standards run afoul of due pr ocess if t hey “ result in significant disenfranchisement and vote dilution,”Warf, 619 F.3d at 559 (citations omitted). So too do state actions that induce voters to m iscast their votes. Griffin, 570 F.2d at 1074, 1078–79 (finding that Rhode Island’s post-election invalidation of absentee ballots violated due process, because voters relied on state directives allowing such ballots); Hoblock v. Albany Cnty. Bd. of Elections, 487 F. Supp. 2d 90, 97 (N.D.N.Y. 2006).
Although this iss ue was not ripe at the tim e, Hunter expressed “substantial constitutional concerns regarding the invalidation of votes cast in the wrong precinct due solely to poll-worker error.” 635 F.3d at 243.
Ohio has created a system in which state actors (poll workers) are given the ultimate responsibility of directingvoters to the right location to vote. Yet, the state law penalizes the voterwhen a poll worker directs the voter to the wrong precinct, and the penalyt, disenfranchisement, is a harsh one indeed. To disenfranchise citizens whose only error was relying on poll-worker instructions appears to us to be fundam entally unfair. Cf. [Purcell v. Gonzalez , 549 U .S. 1, 4 (2006)] (“ [T]he possibility that qualified voters might be turned away from the polls would caution any district judge to give careful consideration to the plaintiffs’ challenges.”).

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Id. at 243. The SEIU plain tiffs have shown, and the State does not deny, that pollworker error causes thousands of qualified voetrs to cast wrong-precinct ballots fromthe correct polling locations.
Even so, t he State argues that a due process violation requires intentional conduct. See, e.g., Shannon v. Jacobowitz, 394 F.3d 90, 96 (2nd Cir. 2005). It appears we have not opined on the scienter necessary for a voting r estriction to violate due process, see League of Women Voters, 548 F.3d at 476 (declining to decide the scienter requirement for a voting restriction to vi olate equal protection), 478 (finding, at the 12(b)(6) stage, that allegations of system ic irregularities in Ohio’s elections system supported a due process violation, without a ddressing scienter). Yet, accepting the State’s premise, we find sufficient indicia of purposeful conduct in the State’s intent to enforce its strict disqualif ication rules without exception, despite the system ic pollworker error identified in this litigation and others. Hunter shed light on this problem last year, but the State persisted in its position. In light of the well-docuemnted problem of wrong-precinct provisi onal ballots caused by poll-worker error, resulting in the rejection of thousands of provisional ballo ts each year, we have no basis on which t o disagree with the district court’s finding of a likely due process violation.
c. Equal Protection & Consent Decree’s Non-Uniform Standards
We next address the consent decree’s dfiferential treatment of provisional ballots depending on the form of identificati on us ed by the voters. As the district court explained, the O hio Revised Code rejects all wrong-precinct ballots, but the consent decree provides a rem edy only for SSN-4 voters. For those SSN-4 voters who later show that poll-worker error caused their wrong precinct or deficient-affirm ation vote, the consent decree saves their ballots fromrejection. A provisionalvoter using any other form of identif ication (e.g., current photo identif ication, copy of current utility bill, paycheck) receives no such reprieve.
Both the State and the SEIU plaintiffs addressed this issue before the district court. In arguing for an expansion of the consent decree, the SEIU plaintiffs objected to its “arbitrary and unequal counting and rejecting of the ballots of lawfully registered

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Ohio voters.” (SEIU Pls.’ Second Am . Com pl. ¶ 94; Mot. Prelim . Inj. at 31.) The Secretary similarly acknowledged this equal protection problem in the consent decree, but argued that “it’s equally plausible to say that the proper reemdy is to treat everybody the same and do away with the NEOCH decree.” (R. 69, Tr. Oral Arg. at 58:11–17.) Though both parties continue to recognize this equal protection problem, they disagree on a fix. The NEOCH plaintiffslikewise recognized this problemwhen they moved the district court to expand the consent decree to avoid constitutional infirmity.
We agree with all of the parties and th e district court that the consent decree likely violates the equal protection principle recognized in Bush v. Gore. “[A] citizen has a constitutionally protected right to partic ipate in elections on an equal basis with other citizens in the jurisdiction.” Dunn v . Bl umstein, 405 U.S. 330, 336 (1972). “Having once granted the right to vote on equal term s, the State m ay not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Bush, 531 U.S. at 104–05. It appears to us that the consent decree does just that.
Our Hunter case noted a sim ilar equal protection problem with thi s consent decree. There, the Hamilton County electionsboard “considered evidence ofpoll-worker error with respect to som e ballots cast in the wrong precinct but not ot her similarly situated ballots when it evaluated which ballots to count.” Hunter, 635 F.3d at 238. Hunter recognized the possibility that Ham ilton County’s treatm ent of provisional ballots under the consent decree could create a statewide equal protection problem, but limited its analysis to the county-based equal protection claim brought by the parties. See id. at 241–42.
Here, the SEIU plaintiffs’ equal protection claim squarely raises the statewide disparity inherent in the terms of the consent decree: its preferential treatment of SSN-4 provisional ballots. (SEIU Pls.’ SecondAm. Compl. ¶ 94.) Consistent withHunter, we join the pa rties and the district court in finding that the consent decree’s different treatment of similarly situated provisional ballots likely violates equal protection.

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2. Irreparable Injury, Substantial Harm to Others, Public Interest
Turning to the equitable consider ations, the State does not contest the district court’s core findings of irreparable harm to the voter and absence of harm to others. Rather, it offers only vague public-interest ocncerns, speculating that the injunction will spawn additional poll-worker error, vote dilution, and post-election litigation. As we explained in rejecting the CRACC amici’s vote-dilution argument, the record does not support the f ear that count y boards w ill err in rem aking w rong-precinct ballots by improperly counting ineligible “down ballot” votes. Nor do we anticipate that the injunction’s narrow remedy—saving “up-ballot” votes frompoll-worker-induced wrongprecinct ballots—will spur a m ountain of post-election litigation. The State has not shown that the district court abused its discretion in weighing the equitable considerations.
Nor has the State shown abuse in the district court’s fashioning of injunctive relief tailored to t he identified harm . The State would disqualify thousands of rightplace/wrong-precinct provisional ballots, where the voter’s only mistake was relying on the poll-worker’s prec inct guidance. That path unjustifiably burdens these voters’ fundamental right to vote. Recognizing that a prospective remedy could not undo all of the harm occasioned by poll-worker error, the district court crafted a narrow reemdy that preserves as m uch of a m iscast ballot as possible. The Secretary has now adopted regulations im plementing the district court’s lim ited rem edy for right-place/wrongprecinct provisional ba llots. See SOS Directive 2012-44 & Form 12-D. These regulations enable the State to identify and document recalcitrant voters that disregard poll-workers’ precinct instructions, so that these provisional ballots can be excluded. Because the State offers no persuasive reason to disturb the district court’s remedy, as implemented by the Secretary, we affirm the wrong-precinct aspect of the preliminary injunction.

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C. The Deficient-Affirmation Ballots
The district court identif ied only one probable constitutional violation as supporting the injunction’s deficient-affi rmation rem edy: the unreasonableness of disqualifying deficient-affirmation ballots caused by poll-worker error, in derogation of equal protection. Because the spotty reco rd and Ohio law do not support the district court’s presumption of poll-worker error, we find no likely constitutional violation and reverse this aspect of the preliminary injunction.
The district court’s opinion suffers fromtwo presumptions not supported by the record: (1) that the absence of legitim ate state interests overcom es any dif ficulty “quantify[ing] the precise magnitude of the burden imposed by [Ohio’s] restriction on the class of affected voters,” and (2) that state law requires poll-workers to ensure that provisional voters properly complete ballot affirmations. (Plenary Op. & Order at 44.) The district court’s m inimal findings on th is count reflect that Ohi o rejected 568 provisional ballots in 2011 due t o t echnical deficiencies appearing in the ballot affirmations, but do not specify which of thees ballots suffered fromwhich deficiencies. To be sure, the SEIU plaintiffs grouped a variety of voter-penned errors in support of this claim—e.g., missing, misplaced, and non-matching signatures, and failure to include a printed name.
In our view, the difficulty in measuring the voter burden imposed by the ballotaffirmation requirement stems from the fact that all of the identified deficiencies arise from voters’ f ailure to f ollow the f orm’s rather sim ple instructions: (1) print nam e, (2) provide identification,11 and (3) sign the affirmation appearing at the bottom. See SOS Form 12-B. Even the last step is optoi nal, because Ohio law permits voters to cast a provisional ballot without signing the affirmation upon notifying a poll worker. O.R.C. § 3505.181(B)(6). Contrary to the district court’s suggestion, Ohio law does not task poll-workers with quality control of ballot affirmations. Rather, the Ohio provisions cited by the district court instruct provisional voters to “execut[ e] . . . a written

11The SEIU plaintiffs do not challenge Ohio’s voter-identification requirements.

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affirmation . . . before an election o fficial,” O.R.C. § 3505.181(B)(2), and require election official s to “record the type of identification provided, the social security number inform ation, the fact that t he affirm ation was executed, or the fact that the individual declined to execute such an affirmation and include that information with the transmission of the ballot,” O.R.C. § 3505.181(B)(6).
During oral argum ent, the SEIU appe llees conceded that Ohio’s ballotaffirmation r equirement im poses a lesser burden on voters than Ohio’s precinct requirement. In light of Ohio’s similar signature requirements for casting regular ballots with proper identification, absentee ballots, and issue petitions,see O.R.C. §§ 3509.03, 3509.05, 3519.01, 3505.18, we agree. Ohio’s legitimate interests in election oversight and fraud prevention easily justify the minimal, unspecified burden asserted by the SEIU plaintiffs. Because the SEIU plaintiffs have not shown a likelihood of success on the merits, we reverse the preliminary injunction’s deficient-affirmation remedy.
IV. THE CONSENT DECREE (Appeal 12-3916)
A. Applicability of Rule 60(b)
Ohio and the Secretary argue that Rule 60(b) does not apply to this case because (1) Ohio election law does not provide exceptions for the counting of any wrongprecinct or deficient-affirmation ballots, and the consent decree m ade no predicate findings of a constitutional violation; (2) the consent decree, by its own term s, is modifiable for “good cause”; and (3) this court already ruled that the consent decree is not a “final judgment.” They claim that because Oh io and the Secretary entered an agreement with the plaintiffs that they now contend violates Ohio law, it is void, and Rule 60(b) does not apply to a request to vacate it. We hold that Rule 60(b) applies to this case and that Ohio and the Secretary have not sustained their burden under R ule 60(b). Thus, we a ffirm the district court’s denial of the request to vacate the consent decree.
Ohio and the Secretary argue that if a consent decree requires a state to take actions that violate state law, and no predicate federal constitutional violation has been

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established, Rule 60(b) does not apply. They cite a number of cases for this proposition,
but all of them involved either third parties challenging a consent decree reached by others, or review of legal challenges to a consent decree on direct appeal.12 Rule 60(b)
would not have been implicated in these cases because those challenging the validity of
the decrees were either not “parties,” as required by Rule 60(b), or properly raised their
argument on direct appeal in the underlying litigation. None involved a party contesting
the validity of a decree to which it previously consented after the decree became final
and the time for direct appeal passed. In the only case we are aware of addressing facts
similar to t hose posed here, the Second Circuit applied Rule 60(b) to deny the
government’s request for relief from the consent decree. See Congregation Mischknois
Lavier Yakov, Inc. v. Bd. of Trs. for Village of Airmont, 301 F. App’x 14, 15 (2d C ir.
2008) (rejecting def endant’s argum ent “inasm uch as the settlem ent and order were
contrary to state law, they were void and should be vacated”).
Although they do not acknowledge it, Ohio and the Secretary make an argument
properly characterized a s fa lling under Rule 60(b)(4). Rule 60(b)(4) perm its final
judgments to be lifted if “void.” But the Supreme Court has held that nothing short of
a “jurisdictional error” or “a vi olation of due process” justifies relief under Rule
60(b)(4). See United Student Aid Funds, Inc. v. Espinosa, 130 S. Ct. 1367, 1377 (2010).
Neither is alleged or shown here. Espinosa was itself a case where a final judgm ent
enshrined a violation of federal law, andthe corporation challenging that judgment under
Rule 60(b) did nothing to address this problem in a timely fashion. Id. at 1380. Ohio
and the Secretary contend that the consent decree was flawed “when it was entered.”
12See St. Charles Tower, Inc. v. Kurtz, 643 F.3d 264, 266 (8thCir. 2011) (appeal by intervenors who were not parties to a consent decree betw een plaintiffs and defendant zoning board); League of Residential Neighborhood Advocates v. City of L.A,. 498 F.3d 1052, 1053 (9th Cir. 2007) (lawsuit brought by neighbors of a synagogue that entered a consent decree with the defendant in a separa te case); Cleveland Cnty. Ass’n for Gov’t by the People v. Cleveland Cnty. B d. of Comm’rs, 142 F.3d 468, 471 (D.C. Cir. 1998) (lawsuit brought by third-party voters group challe nging consent decree entered by NAACP and the defendant); Keith v. Volpe , 118 F.3d 1386, 1389–90 (9th Cir. 1997) (appeal of an injunction entered pursuant to a consent decree by a businessman who was not a party to the decree); Perkins v. City of Chi. Heights, 47 F.3d 212, 214 (7th Cir. 1995) (appeal by two of the named plaintiffs in a class action objecting to a consent decree reached by the rem aining nam ed plaintiffs and the defendant); People Who Care v. Rockford Bd. of Educ. Sch. Dist. No. 205, 961 F.2d 1335, 1336 (7th Cir. 1992) (appeal by a teacher’s union that was not a party to a consent decree between a school district and various citizens’ groups);Kasper v. Bd. of Election Comm’rs of the City oCfhi., 814 F.2d 332, 338–39 (7th Cir. 1987) (appeal by plaintiffs dissatisfied with a consent decr ee reached by intervening plaintiffs and defendants).

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(Appellant’s Br. at 27.) Nonetheless, they agreed to and were signatories to the consent decree and did not begin challenging it as “void” until m ore than a year after the fact. “Where, as here, a party [has notice of a violation of law enshrined in a final judgment] and fails to object to [it] before the time for appeal expires, that party has been afforded a full a nd fa ir opportunity to litigate, and the party’s failure to avail itself of that opportunity will not justify Rule 60(b)(4) relief.” Espinosa, 130 S. Ct. at 1380. Therefore, we agree with the plaintiffs that Rule 60(b)(4) governs challenges to a n allegedly “void” consent decree and that Ohio and the Secretary have not met the high threshold necessary to bring such a challenge.
The consent decree provides that “[a]ny of the parties may file a motion with the Court t o m odify, extend or term inate this Decree for good cause shown.” (Consent Decree at V(11).) Ohio and the Secretary argue that this clause constitutes a “waiver” of the strictures of Rule 60(b). It does not. While a consent decree “embodies an agreement of the parties and thus in some respects is con tractual in nature,” it is nonetheless subject to Rule 60(b) because it is “a judicial decree that is subject to the rules generally applicable to other judgments and decrees.” Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 378 (1992). The words “good cause shown” do not upset this general presumption. Even when consent decrees explicitly provdie instructions for their own modification, Rule 60(b) governs. Cleveland Firefighters for Fair Hiring Practices v. City of Cleveland, 669 F.3d 737, 741 (6th Cir. 2012) (“[A] district court is not merely an instrument of a consent decree or of the parties’ stipulations with respect to it,” and termination of a decree must be “lawful given not only the decree’s terms, but also the broader legal rules that govern consent decrees”). Moreover, while we review the district court’s interpretation of a consent decree it approves de novo, we have applied “deferential de novo” review to the district court’s interpretation of a consent decree it supervised a nd approved. Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 371–72 (6th Cir. 1998) (emphasis added). The district court’s conclusion that Rule 60(b) applied to this dispute removes any doubt that the “good cause shown” language in the consent decree reaf firms Rule 60(b)’s applicability, rather than circumventing it.

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The consent decree explains that it is “final and binding among and between [the parties] as to the issues raised in the Plaintiffs’ Complaint and Supplemental Complaint, and the matters resolved in this Decree.” (Consent Decree, preamble.) Nonetheless, Ohio and the Secretary argue that this court’s recent opinion in NEOCH v. Husted, --F.3d ----, 2012 WL 3734369 (6th Cir. Aug. 30, 2012), establishes that the consent decree is not a “final judgment” subject to Rule 60(b). That decision addressed whether the plaintiffs, by entering into the consent decree, waived their right to petition f or supplemental attorney fees and costs pursuant to 42 U.S.C. § 1988(b). NEOCH, 2012 WL 3734369, at *4. We found that the consent decreedid not constitute such a waiver. Id. at *8.
Contrary to the position taken by Ohio and the Secretary, that ruling had no bearing on whether or not the consent decree was a “final order, judgm ent, or proceeding” for Rule 60(b) purposes. Our case law interpreting § 1988(b) in the context of settlement agreements has focused on whether or not “the parties i ntended the settlement to be a final disposition of all claims,” or if the agreem ent contemplates a future motion for such fees by the “prevailing party.” See Jennings v. Metro. Gov’t of Nashville, 715 F.2d 1111, 1113–14 (6th Cir. 1983) (emphasis added). But in either case, the underlying resolution of the plaintiff’s claims that supports the request for fees is a “final” one for Rule 60(b) purposes. Entitlement to such fees is determined by whether a party “‘succeed[s] on any significant issue in litigation which achieves som e of the benefit the parties sought in bringing suit.’” Phelan v. Bell, 8 F.3d 369, 373 (6th Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). It is not possible to apply for “prevailing party” fees until a form of “judicially-sanctioned relief” has been provided. Sierra Club v . Hamilton Cnty. Bd. of Cnty. Comm’rs , 504 F.3d 634, 656 (6th Cir. 2007). The consent decree’s explicit statement that it is “final and binding” as to the “matters resolved in this decree” erases any doubts on this point. Accordingly, the recent decision in NEOCH does not alter our views regarding Rule 60(b)’s applicability in this context.

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B. Analysis Under Rule 60(b)
Having rejected the objections to Rule 60(b)’s applicability, our resolution of the appeal is straightforward. “We review a district court’s decision to vacate a decree for an abuse of discretion.” Doe v. Briley, 562 F.3d 777, 782 (6th Cir. 2009). Ohio and the Secretary “‘bear[ ] the burden of establishing that a significant change in circumstances warrants revision of the decree.’” Vanguards of Cleveland v. City of Cleveland, 23 F.3d 1013, 1018 (6th Cir. 1996) (quoting Rufo, 502 U.S. at 760). We have already explained why the district court properly found that the consent decree is not “void” under Rule 60(b)(4). As to Rule 60(b)(5), Ohio and the Secretary advanced no argument that they were actually entitled to such relief in their opening brief, since they chose to rely solely on arguments challenging Rule 60(b)’s applicability. See Youghiogheny & Ohio Coal Co. v. Milliken, 200 F.3d 942, 955 (6th Cir. 1999) (“[A]rguments not raised in the proponent’s opening brief on appeal are generally considered abandoned.”). In their reply brief, Ohio and the Secretary argue that they have met the requirements of Rule 60(b)(5) and Rufo because “modification of a consent decree may be warranted when the statutory or decisional law has changed to make legal what the decree was designed to prevent.” Rufo, 502 U.S. 367, 388 (1992); see also Sweeton v. Brown, 27 F.3d 1162, 1164 (6th Cir. 1994).
Rufo does not support Ohio and the Secretary’s argument. First, Rufo dealt specifically with the issue of clarifying decisions of federal law, not state law, which is the only legal change asserted in No. 12-3916. Second, Ohio and the Secretary have conceded that, at best, Painter merely clarified preexisting Ohio law. Rufo is limited to genuinely unanticipated circumstances. Id. at 384 (“[M]odification should not be granted where a party relies upon events that actually were anticipated at the time it entered into a decree.”). Third,Rufo acknowledged that parties can and do “settle . . . dispute[s] over the proper remedy for . . . constitutional violations that had been found by undertaking to do more than the Constitution itself requires,” and that allowing the modification of decrees whenever “a clarification in the law” comes about would greatly “undermine the finality of such agreements” and “serve as a disincentive to negotiation of settlements

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in institutional reform litigation.” Id. at 388–89; see also Northridge Church v. Charter Twp. of Plym outh, 647 F.3d 606, 613–14 (6th Cir. 2011) (“[Rule 60(b)(5)] does not allow modification ‘when it is no longer convenient to live with the terms of a consent decree’ . . . .” (quoting Rufo, 502 U.S. at 383) (emphasis in Northridge Church )). Applying Rufo in this case would raise serious finality concerns, given Ohio and the Secretary’s change of course on the proper law to be applied.
Moreover, even taking into account the arguments raised in the reply brief, Ohio and the Secretary have not carried their burden on two other aspects of the Rufo test recognized by this circuit. In addition to a “significant change in circumstances,” the moving party must show that the consent decree is “onerous,” “unworkable,” or “detrimental to the public interest.” Heath v. D eCourcy, 992 F.2d 630, 635 (6th Cir. 1993). Furthermore, if changes are anticipated, as they appeared to be in this case, the party seeking to modify the decree must show that the original decree was agreed to in good faith, that reasonable ef forts at com pliance were made, and that it ought to be relieved of its obligations. Id. Ohio and the Secretary have not attempted to make these showings, much less carry their burden on them. Accordingly, the district court did not abuse its discretion in refusing to modify the consent decree under Rule 60(b).
C. Remaining Issues with Consent Decree
Before concluding, we note some additional issues our ruling creates that must be resolved. While we have set aside the potrion of the preliminary injunction addressing deficient-affirmation provisional ballots, the consent decree continues to mandate that some deficient-affirmation provisional ballots will be counted. This dsicrepancy appears to create a Bush v. Gore problem. Similarly, the consent decree standing on its own also raises Bush v. Gore issues by virtue of treating some provisional ballots differently than others. This latter concern is not purely academic, as the consent decree will be the only agreement governing these issues for Ohio’s 2013 primary elections.
In the order on appeal in No. 12-4069, the dsitrict court held that the discrepancy the consent decree creates between different sets of provisional ballots form ed an alternate justification for the prelim inary inj unction. Both Ohio and the Plaintiffs

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attempted to leverage this ruling on appeal in No. 12-4069 by arguing that either none or all of these ballots ought to be counted,respectively. But the district court has never ruled on this argument in the context of a request to modify or vacate the consent decree. The NEOCH Plaintiffs did make a motion to this effect in the district court, but it was stayed pending this appeal. Moreover, the discrepancy betwee n deficient-affirmation ballots for the November 2012 election is entirely a creature of this court’s decisions, and has never been considered by the district court. Because the district court has not had an opportunity to address these issues, and decisions to modify consent decrees are generally left to the discretion of the trial court, the proper course is to remand this case so that the parties, by proper motion or agreement, may address the issue in the district court. Ohio, which has the m ost to lose by a rem and, suggested such relief would be appropriate on appeal if such a finding were made. (Ohio Br., No. 12-4069, at 32 (“[I]f [the court] finds that the Decree creates a constitutional violation, it can note that as a holding, leaving the district court on remand to address that.”).)
V. CONCLUSION
For the above reasons, we AFFIRM IN PART and REVERSE IN PART the district court’s preliminary injunction in appeal 12-4069. Specifically, the preliminary injunction’s wrong-precinct rem edy is AFFIRMED, and the deficient-affi rmation remedy is REVERSED. The district court’s judgment in No. 12-3916 is AFFIRMED, and the matter is REMANDED for further proceedings.

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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Nos. 12-3916/4609
No. 12-3916
NORTHEAST OHIO COALITION FOR THE HOMELESS; SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1199,
Plaintiffs - Appellees,

FILED
Oct 11, 2012
DEBORAH S. HUNT, Clerk

OHIO DEMOCRATIC PARTY, Intervenor Plaintiff - Appellee,

v.

JON HUSTED; STATE OF OHIO, Defendants - Appellants.

No. 12-4069

NORTHEAST OHIO COALITION FOR THE HOMELESS; SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1199,
Plaintiffs - Appellees,

v.

JON HUSTED, Defendant - Appellant,

STATE OF OHIO, Intervenor.

Before: GIBBONS and COOK, Circuit Judges; ROSENTHAL, District Judge.

JUDGMENT

On Appeal from the United States District Court for the Southern District of Ohio at Columbus.

THIS CAUSE was heard on the record from the district court and was argued by counsel.

IN CONSIDERATION WHEREOF, it is ORDERED that the wrong-precinct remedy is AFFIRMED and the deficient-affirmation remedy is REVERSED IN 12-4069. IT IS FURTHER ORDERED that the district court’s judgment in 12-3916 is AFFIRMED, and the case is REMANDED to the district court for further, expeditious proceedings consistent with the opinion of this court.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

 
 Case: 2:06-cv-00896-ALM-TPK Doc #: 345 Filed: 10/26/12 Page: 1 of 3 PAGEID #: 12585

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

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

:

:

Case No. 2:12-CV-562

:

:

JUDGE ALGENON L. MARBLEY

:

Magistrate Terence P. Kemp

:

THE NORTHEAST OHIO COALITION :

FOR THE HOMELESS, et al.,

:

:

Plaintiffs, :

:

v.

:

:

JON HUSTED, in his official capacity as :

Secretary of the State of Ohio,

:

:

Defendant.

:

:

and :

:

STATE OF OHIO

:

:

Intervenor-Defendant :

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

ORDER

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

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

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

Case: 2:06-cv-00896-ALM-TPK Doc #: 345 Filed: 10/26/12 Page: 2 of 3 PAGEID #: 12586
NEOCH case”). Before the Court is Defendants’ Motion to Modify the April 19, 2010 Consent Decree (“the Consent Decree”) in the NEOCH case.
Defendants filed a written Motion to Modify the Consent Decree on October 19, 2012. (NEOCH Dkt. 342) In that Motion, Defendants raised a concern about the equal protection of implications of Section III(5)(b)(v) in the Consent Decree in light of the injunctions granted by this Court on August 27, 2012 (SEIU Dkt. 67, NEOCH Dkt. 332) and October 26 (SEIU Dkt. 90, NEOCH Dkt. 344).1 Defendants asked the Court to “clarify[]” that “the Secretary need not include this language in his Directive to the Boards.” (Dkt. 342 at 12-13) Defendants again raised this Motion at oral argument on October 24, 2012. Plaintiffs opposed the Motion. Both parties stipulated that an order should issue from the Court to clarify the matter. Parties represented to the Court that they would attempt to come to an agreement. Ultimately, parties were unable to reach agreement on the language of such an order. On October 26, 2012, parties jointly requested the Court decide the matter.
In light of the August 27, 2012 and October 26, 2012 injunctions issued by this Court, all otherwise valid provisional ballots in Ohio will be counted, irrespective whether they are cast in the “right location, wrong precinct” or “wrong location, wrong precinct.” Thus, Section III(5)(b)(v) of the Consent Decree which orders county boards of election to count “right location, wrong precinct” ballots only for provisional voters who identify themselves with the last four digits of their social security numbers (“SSN-4 voters”) is now superfluous. By allowing this section to remain in the Secretary of State’s directives to county boards of election, there is a risk of confusion and misapprehension by county boards of election that they are still
1 For the equal protection analysis of the Consent Decree, see Section IV of this Court’s Order of October 26, 2012. (SEIU Dkt. 90, NEOCH Dkt. 344)
2

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required to treat SSN-4 ballots differently from other provisional ballots when these ballots are

cast in the wrong location or wrong precinct.

To minimize the risk of misunderstanding by the county boards of election the Court

GRANTS, in part, Defendants’ Motion to Modify April 19, 2010 Consent Decree. To remedy

the inconsistency presented by Section III(5)(b)(v) of the Consent Decree, the Court ORDERS:

In light of two injunctions issued in SEIU v. Husted, Section III(5)(b)(v) of the April 19, 2010 Consent Decree has been removed for the purposes of the November 6, 2012 election. County boards of election are ORDERED to comply with the Directives that govern the counting of ALL provisional ballots cast in the wrong precinct, irrespective of whether they are cast in the correct polling place or an incorrect polling place.

IT IS SO ORDERED.

Algenon

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

Dated: October 26, 2012

3

 
 Case: 2:06-cv-00896-ALM-TPK Doc #: 405 Filed: 02/07/14 Page: 1 of 2 PAGEID #: 14673

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

THE NORTHEAST OHIO COALITION :

FOR THE HOMELESS, et al.,

:

:

Plaintiffs,

:

:

v.

:

:

JON HUSTED, in his official capacity as :

Secretary of the State of Ohio,

:

:

Defendant.

:

:

and

:

:

STATE OF OHIO

:

:

Intervenor-Defendant :

:

:

SERVICE EMPLOYEES

:

INTERNATIONAL UNION,

:

LOCAL 1, et al.,

:

:

Plaintiffs,

:

:

v.

:

:

JON HUSTED, et al., :

:

Defendants.

:

Case No. 2:06-CV-00896 JUDGE ALGENON L. MARBLEY Magistrate Judge Terence Kemp
Case No. 2:12-CV-00562 JUDGE ALGENON L. MARBLEY Magistrate Judge Terence Kemp

ORDER

This matter is before the Court on remand from the United States Court of Appeals for

the Sixth Circuit. (Doc. 404). On January 31, 2014, the Court entered an Indicative Order (Doc.

401), indicating its willingness to accept limited remand and to vacate its November 13, 2012

Opinion and Order (Doc. 357), in order to effectuate the settlement reached by the Parties. On

February 6, 2014, the Court of Appeals granted the Parties’ Joint Motion pursuant to Fed. R.

Case: 2:06-cv-00896-ALM-TPK Doc #: 405 Filed: 02/07/14 Page: 2 of 2 PAGEID #: 14674 App. P. 12.1, remanding this case “for the limited purpose of having the District Court issue an order vacating its November 13, 2012 Opinion and Order.” Accordingly, the Court hereby VACATES its November 13, 2012 Opinion and Order (Doc. 357; Case No. 2:12-CV-00562, Doc. 103). IT IS SO ORDERED. s/Algenon L. Marbley ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE Dated: February 7, 2014
2

 
 Case: 2:06-cv-00896-ALM-TPK Doc #: 453 Filed: 10/30/14 Page: 1 of 43 PAGEID #: 15789 	  
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

THE NORTHEAST OHIO COALITION FOR THE HOMELESS, et al.,
Plaintiffs,
vs.
JON HUSTED, in his official capacity as Secretary of State of Ohio, et al.,
Defendants.

CASE NO. 2:06-cv-896; 2:12-cv-562 Judge Algenon Marbley Magistrate Judge Terrence P. Kemp

PLAINTIFFS NEOCH, CCH, AND ODP’S SECOND SUPPLEMENTAL COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

For their Second Supplemental Complaint, Plaintiffs The Northeast Ohio Coalition for the Homeless (“NEOCH”), Columbus Coalition for the Homeless (“CCH”) and The Ohio Democratic Party (“ODP”) state and allege as follows:
NATURE OF ACTION 1. This Second Supplemental Complaint challenges portions of Ohio Substitute Senate Bill 205 (“S.B. 205”), which Ohio Governor Kasich signed into law on February 21, 2014, and Ohio Substitute Senate Bill 216 (“S.B. 216”), which Governor Kasich signed into law on February 28, 2014. Both laws took effect on June 1, 2014. 2. This Second Supplemental Complaint is based upon events that occurred after Plaintiffs filed their first Supplemental Complaint on November 21, 2008, and after the Court entered the Consent Decree on April 19, 2010.

	  

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3. If the challenged portions of S.B. 205 and S.B. 216 are not permanently enjoined, they will unlawfully disenfranchise thousands of Ohio voters who cast absentee or provisional ballots in upcoming elections—and who primarily are minority voters and/or voters who support the Democratic Party.
4. The challenged laws unlawfully require absentee and provisional voters, as a condition of having their votes be counted, to demonstrate their ability to read, write, understand and interpret any matter by completing the State’s voting-related forms without making even a single error or omission, in violation of the Voting Rights Act, 42 U.S.C. § 1973aa.
5. The challenged laws permit or require Boards of Elections to reject and not count absentee and provisional ballots because of technical and immaterial errors or omissions and/or because of mismatches with the Statewide Voter Registration Database (“SVR Database”), even where such errors, omissions, or mismatches are not material in determining whether the voter is qualified under State law to vote in the election, in violation of the Voting Rights Act, 42 U.S.C. § 1971(a)(2)(B).
6. The challenged laws fail to provide adequate due-process notice and opportunity to cure for absentee voters or any due-process notice and opportunity to cure for other absentee voters and all provisional voters (with one limited exception for certain provisional voters although without providing specific notice) before depriving voters of their fundamental right to vote because of errors, omissions, or mismatches with the SVR Database, in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983.
7. The challenged laws fail to provide disenfranchised voters with notice of the fact of and reason(s) for the disenfranchisement, and also fail to give such voters the opportunity to address any errors, omissions, or mismatches so that their votes will be counted in future

	  

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elections, in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983.
8. The challenged laws impose severe and undue burdens on the voting rights of thousands of Ohio provisional and absentee voters, in violation of the First and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983.
9. The challenged laws and the Secretary of State’s directives fail to provide uniform standards for Boards of Elections to apply when determining whether to reject or count ballots where information on the accompanying Provisional Form or Absentee Envelope is incomplete and/or does not match the SVR Database, and thereby fail to ensure that Boards of Elections will treat similarly situated absentee and provisional voters equally from county to county or within a county, in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983.
10. The challenged laws and the Secretary of State’s directives treat similarly situated voters differently by providing limited due-process rights to some absentee voters but providing no due-process rights to provisional voters and other absentee voters, by treating wrong-precinct provisional voters differently from county to county, and by treating absentee and provisional voters who have an error or mismatch with respect to their date of birth, name, address or signature differently from county to county or within a county, without any valid or justifiable reason for treating these groups of voters differently, in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983.
11. The challenged laws impose extraordinary voting restrictions that render the State’s electoral system fundamentally unfair, in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983.

	  

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12. The challenged laws create barriers to voting that will have a disparate impact on minority voters and will result in the denial or abridgement of their right to vote on account of race or color, in violation of Section 2 of the Voting Rights Act, 42 U.S.C. § 1973.
13. The challenged laws intentionally discriminate against minority voters on the basis of race or color, in violation of the Equal Protection Clause of the Fourteenth Amendment and the Fifteenth Amendment.
14. The challenged laws intentionally discriminate against and will have a disparate impact on voters who support the Democratic Party on the basis of their political viewpoint, in violation of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and 42 U.S.C. § 1983.
15. If the challenged provisions of S.B. 205 and S.B. 216 are not permanently enjoined, they are likely to unlawfully disenfranchise thousands of Ohio voters who cast absentee or provisional ballots. Disenfranchisement is a severe and irreparable harm.
16. The State of Ohio does not have a valid, justifiable or compelling interest in disenfranchising absentee and provisional voters based upon technical and immaterial errors/omissions and/or mismatches with the SVR Database, particularly where a Board of Elections can otherwise determine that the voter is qualified, registered, and eligible to vote.
17. The challenged provisions of S.B. 205 and S.B. 216 were intended to have and will have a disproportionate adverse impact on African-American and Latino voters who reside predominantly in urban counties and have historically cast a high percentage of absentee and provisional ballots in Ohio elections.
18. The challenged provisions of S.B. 205 and S.B. 216 also were intended to have and will have a disproportionate adverse impact on Ohio voters who tend to cast their votes in

	  

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favor of candidates from the national, state, or local Democratic Party and have historically cast a disproportionately high number of absentee and provisional ballots in Ohio elections.
19. The challenged provisions of S.B. 205 and S.B. 216 violate the Voting Rights Act, 42 U.S.C. §§ 1971, 1973, and 1973aa, as well as the First and Fourteenth Amendments to the United States Constitution.
20. Plaintiffs seek a declaratory judgment and permanent injunction prohibiting Defendants from implementing or enforcing the challenged provisions of S.B. 205 and S.B. 216 in Ohio Rev. Code §§ 3501.01(AA), 3501.22, 3505.18, 3505.181, 3505.182, 3505.183, 3509.03, 3509.04, 3509.06, and 3509.07.
21. The claims that Plaintiffs assert in this Second Supplemental Complaint are substantially related to Plaintiffs’ previous claims against Defendants in this lawsuit and the Consent Decree entered by the Court in this lawsuit, as demonstrated by the Notice of Defendant Jon Husted, Ohio Secretary of State, of Changes in Ohio Statutory Law That Modify The Consent Decree (Doc. #418) that was filed on May 8, 2014. It is therefore proper to assert these claims in a supplemental complaint filed in this lawsuit.
PARTIES 22. Plaintiff Northeast Ohio Coalition for the Homeless (“NEOCH”) is a non-profit charitable organization operating in the City of Cleveland. Its mission is to organize and empower homeless and at-risk men, women, and children, and to break the cycle of poverty through public education, advocacy, and creating nurturing environments. NEOCH is a coalition of service providers, housing activists, members, and homeless people. Approximately 10% of NEOCH’s members are homeless. 23. NEOCH believes that participation in the democratic process is critical for those who struggle with their housing. For many years, NEOCH has worked to reduce barriers that

	  

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deter or prevent homeless people from exercising their right to vote. Among other things, NEOCH has helped thousands of homeless people register to vote, has mobilized and educated homeless voters about their right to vote, has worked with county officials to ensure that homeless people have access to voting, has collaborated with and founded a program to allow homeless voters to satisfy Ohio’s voter-identification law by helping them to obtain State identification cards (although this program is likely to run out of funding prior to the November 2014 election), has provided funds to help homeless people obtain birth certificates (which are necessary to obtain identification that is acceptable under Ohio’s voter-identification law), and has driven homeless voters to their Board of Elections to vote early by absentee ballot so that they are not required to cast provisional ballots on Election Day. NEOCH devotes and has devoted significant staff and financial resources to these activities.
24. NEOCH sees and assists approximately 25,000 homeless people in Cleveland each year. About 78% of the population that NEOCH assists is African-American and 7% is Latino. Between 20% and 30% of this population does not have any form of identification that is necessary to cast a regular ballot under Ohio’s voter-identification law. Many of these homeless voters are likely to cast their votes by absentee or provisional ballot. In addition, approximately 30% of the population assisted by NEOCH has a mental illness that could impede their ability to read, understand, and fill out the Provisional Form, Absentee Envelope, and other voting-related forms without assistance. Also, a substantial portion of the population assisted by NEOCH is illiterate and so is unable to read, understand, and fill out these forms without assistance. Finally, while NEOCH is a non-partisan, non-profit organization, a substantial portion of the population that it assists tends to vote in favor of candidates from the national, state, or local Democratic Party.

	  

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25. Plaintiff Columbus Coalition for the Homeless (“CCH”) is a coalition of service providers, currently and formerly homeless people, and concerned citizens. Part of its mission is to advocate on behalf of homeless persons and to empower them to achieve greater selfsufficiency. One of the ways in which Plaintiff CCH has carried out its mission is by assisting its homeless members and other homeless persons to register to vote and cast their votes.
26. Plaintiff Ohio Democratic Party (“ODP”) is a political-party organization dedicated to electing Democratic Party candidates to public office throughout 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 its members are African-American or Latino. Many of these registered voters are likely to cast their votes by absentee or provisional ballot.
27. As a result of the unlawful requirements imposed by S.B. 205 and S.B. 216 on Ohio voters who cast absentee or provisional ballots, Plaintiffs will be required to divert substantial resources to seek to prevent these voters’ disenfranchisement. Plaintiffs will have to conduct significant voter-outreach-and-education programs, which will require diverting personnel and financial resources, to explain to members, supporters, and homeless people whom they assist that their absentee and provisional-ballot forms must be filled out perfectly and completely, and to encourage these voters to vote despite these new hurdles that may cause their ballots to be rejected.
28. Many of Plaintiffs’ members, supporters, and homeless people whom they assist have previously cast their votes by absentee or provisional ballot. These voters will be significantly and irreparably harmed if their absentee or provisional ballots are rejected and not counted even though they are qualified, registered, and eligible to vote, merely because they fail

	  

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to read and understand the Provisional Form or Absentee Envelope, fail to fully and correctly provide all the information, and/or there is a mismatch with information in the SVR Database.
29. Defendant JON HUSTED (“Secretary of State” or “Defendant”) is the Secretary of State of Ohio and is sued in his official capacity. Under Ohio Rev. Code § 3501.04, the Secretary of State is Ohio’s chief election officer and, as such, is responsible for the administration of state laws affecting voting, and for ensuring that elections in the state are conducted in accordance with federal and state law.
30. Defendant MIKE DEWINE (“Attorney General” or “Defendant”) is the Ohio Attorney General and is sued in his official capacity (as a representative of Intervenor-Defendant State of Ohio). Under Ohio Rev. Code § 109.02, the Attorney General is Ohio’s chief law officer and represents the State in all legal matters.
JURISDICTION AND VENUE 31. This Court has jurisdiction over the subject matter of this action under 28 U.S.C. §§ 1331, 1343(a)(3), 2201 and 2202, as well as 42 U.S.C. § 1983. 32. Venue is proper in this Court under 28 U.S.C. § 1391(b) because a substantial part of the direct and immediate harm faced by Plaintiffs CCH and ODP is threatened in this judicial district and because both Defendants have their principal offices in this judicial district.
FACTUAL ALLEGATIONS I. Ohioans have a right to vote if they are qualified, registered, and eligible.
33. Article V, Section 1 of the Ohio Constitution provides that “[e]very citizen of the United States, of the age of eighteen years, who has been a resident of the state, county, township, or ward, such time as may be provided by law, and has been registered to vote for thirty days, has the qualifications of an elector, and is entitled to vote at all elections.”

	  

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34. With only a few exceptions (e.g., serving sentence for felony conviction), every person who meets these constitutional requirements is qualified to vote in Ohio.
35. Individuals who are qualified to vote in Ohio can register to vote by providing their name, current address, date of birth, identification (i.e., Ohio driver’s license number, Social Security number’s last four digits, or a copy of one of the documents described in Ohio Revised Code Section 3505.18(A)(1) (“Voter-ID Document”)) and a signature affirming that they have the qualifications of an elector.
36. Individuals who are qualified and registered to vote in Ohio are eligible to vote in all elections held in their voting precinct at least 30 days after the date they registered to vote.
37. Every Ohioan who is qualified, registered, and eligible to vote in a particular election has a right to vote and to have that vote be counted. II. Ohioans cast regular, absentee, or provisional ballots.
38. Ohio voters cast regular, absentee, or provisional ballots. 39. Most voters cast a “regular ballot” at a polling place on Election Day. A voter must provide a Voter-ID Document to cast a regular ballot. Regular ballots are counted after the polls close on Election Day. To cast a regular ballot, the voter is not required to print his name, write his address, read and understand the instructions on a form, check a box as to the form of ID provided, or provide his date of birth. Regular ballots cannot be rejected for any reason. 40. A significant number of voters choose to cast an absent voter’s ballot, commonly referred to as an “absentee ballot,” before Election Day, either in person at the Board of Elections or by mail. Some absentee ballots are counted on and some after Election Day. Before S.B. 205 was enacted, there were only a few reasons why an absentee ballot might be rejected. Since 2005, Boards of Elections have rejected a very low percentage of absentee ballots.

	  

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41. Some voters are not permitted to cast either a regular ballot or an absentee ballot, but instead are required to cast a “provisional ballot” before or on Election Day. Provisional ballots are required in a variety of circumstances—e.g., if the voter’s name does not appear in the poll book, if the voter has moved, if the voter does not have a Voter-ID Document and wishes to vote on Election Day, if the voter has changed her name or if the Board of Elections is erroneously unable to find the voter on the rolls. Provisional ballots are not counted until more than ten days after Election Day. There are a number of reasons why a provisional ballot might be rejected. Since 2005, Boards of Elections have rejected and not counted a large number of provisional ballots.
42. Voters who vote before Election Day are permitted to cast an absentee ballot by writing their Social Security number’s last four digits as the only proof of identity. They may, but are not required, to provide a Voter-ID Document to prove their identity.
43. Voters who vote on Election Day are not permitted to cast a regular ballot unless they show elections officials a Voter-ID Document. Voters who can only prove their identity through their Social Security number’s last four digits must cast a provisional ballot.
44. Many homeless voters have a Social Security number but do not have a Voter-ID Document. These voters can vote by absentee ballot before Election Day but would have to vote by provisional ballot on Election Day.
45. Because absentee ballots are more likely to be counted than provisional ballots, Plaintiffs NEOCH and CCH encourage homeless voters, including their members, to cast their votes early by absentee ballot.
46. Many of Plaintiff ODP’s members and supporters prefer to vote early by absentee ballot because it is easier and less burdensome than voting on Election Day. Some voters have work, family, or school obligations that will make it difficult for them to cast their ballots in

	  

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person on Election Day, particularly if there are long lines and/or an insufficient number of voting machines at the polling place. Other voters have transportation or physical difficulties that make it difficult to travel to their polling place or the Board of Elections, and so prefer to cast their ballots by mail. Other voters prefer to travel to the Board of Elections before Election Day as part of a group, such as the “Souls to the Polls” programs that are popular in AfricanAmerican communities in urban counties, in communal affirmation over the historic struggle over the right to vote. Plaintiff ODP encourages these and other members and supporters to cast their votes early by absentee ballot. III. Use of absentee and provisional ballots since 2005.
47. The Ohio General Assembly instituted universal absentee voting in 2005. That legislation followed numerous complaints of unreasonably long lines and insufficient numbers of voting machines in the November 2004 election that deterred or turned away thousands of Ohio voters on Election Day. The problems that gave rise to these complaints were particularly prevalent in urban counties with many voters.
48. Since 2005, voters and Boards of Elections in urban counties have relied heavily upon absentee voting.
49. A significantly higher percentage of the populations in Ohio’s urban counties is African-American or Latino as compared to the populations in Ohio’s non-urban counties.
50. Minority voters in Ohio’s urban counties have suffered the effects of discrimination in the areas of education, employment, housing and health, which has hindered their ability to participate effectively in the political process.
51. Upon information and belief, African-American and Latino voters in Ohio’s urban counties are less likely than their non-minority counterparts to possess a Voter-ID Document that is necessary to receive and cast a regular ballot that will be counted, and they will

	  

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be subject to greater burdens and more severe hurdles in having their absentee or provisional ballots counted than other members of the electorate who can cast regular ballots.
52. Upon information and belief, a disproportionate number of African-American and Latino voters in Ohio’s urban counties cast their votes by using absentee and/or provisional ballots, when compared to their non-minority counterparts.
53. This conclusion is buttressed by a statistical study of Ohio early voting data that concluded that minority voters, especially African-American voters, are disproportionately more likely to use early in-person voting opportunities when compared to white voters.
54. Since minority voters in Ohio’s urban counties are more likely to cast their votes by using absentee and/or provisional ballots than are non-minority voters, S.B. 205 and S.B. 216 will disproportionately impact and disenfranchise African-American and Latino voters. The State of Ohio’s political processes therefore will not be equally open to participation by AfricanAmerican and Latino voters, and they will have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.
55. The challenged provisions of S.B. 205 and S.B. 216 were intended to and will interact with social and historical conditions in Ohio’s urban counties to cause an inequality in the opportunities enjoyed by African-American and Latino voters to elect their preferred representatives.
56. The challenged provisions of S.B. 205 and S.B. 216 are intended to have, and will have, a racially disparate impact on African-American and Latino voters.
57. The challenged provisions of S.B. 205 and S.B. 216 also are intended to have, and will have, a disparate impact on voters who support candidates affiliated with the Democratic Party.

	  

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58. The Ohio General Assembly and Governor Kasich knew, at the time they passed and signed S.B. 205 and S.B. 216, that the rejection of absentee and provisional ballots based wholly on technical and immaterial errors/omissions and/or mismatches with the SVR Database will have a racially disparate impact upon African-American and Latino voters and, in addition, will have a disparate impact upon voters who support candidates affiliated with the Democratic Party.
59. When they passed and signed S.B. 205 and S.B. 216, the Ohio General Assembly and Governor Kasich intended to disenfranchise African-American and Latino voters and, in addition, voters who support the Democratic Party. IV. Events that led up to S.B. 205 and S.B. 216.
60. Universal absentee voting was passed and signed into law in October 2005. At that time, Ohio Republican Party members controlled both chambers of the Ohio General Assembly. Governor Bob Taft was also an Ohio Republican Party member.
61. Although Republicans passed and signed the law that instituted universal absentee voting, they did not do so because of their support for absentee voting. Instead, they passed and signed the law to deter Ohio voters from approving a constitutional amendment to institute universal absentee voting that appeared on the November 2005 ballot. That amendment was part of a package of constitutional amendments that was referred to as “Issue 2.”
62. Defendant Husted, who was then the Republican Speaker of the House, reportedly stated: “It hurts Issue 2’s chances of passing if you start talking about the fact that we’ve already given voters the ability to do this legislatively.”
63. Republican State Senator Jeff Jacobson, who was described as being “no fan” of universal absentee ballots, reportedly stated: “This is a not-bad idea whose time will come. It will

	  

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come either way. I prefer that it comes without us doing lasting damage to the constitution, lasting damage to our state, and lasting damage to the sanctity of our vote.”
64. At the time, Ohio Democratic Party members warned that the law was not an adequate substitute for the constitutional amendment because it could later be undone.
65. Democratic State Senator Eric Fingerhut reportedly stated: “There is a risk that what the legislature giveth, the legislature could taketh away.”
66. During the next election in November 2006, Ohio voters elected Ted Strickland to the office of Governor. Ohio voters also elected Jennifer Brunner to the office of Secretary of State. Governor Strickland and Secretary Brunner are Ohio Democratic Party members.
67. Governor Strickland and Secretary Brunner remained in office until December 31, 2010. While they were in office, no legislation was signed into law, and no action was taken by the Secretary of State, that would restrict the right of Ohio voters to vote by absentee ballot.
68. In November 2010, Ohio voters elected John Kasich to the office of Governor. Ohio voters also elected Defendant Husted to the office of Secretary of State. Governor Kasich and Defendant Husted are Ohio Republican Party members.
69. After the November 2010 election, the Ohio General Assembly (which was controlled by members of the Ohio Republican Party) passed, and Governor Kasich signed into law, legislation that would make it significantly less likely that absentee and provisional ballots cast by Ohio voters would in fact be counted.
70. Specifically, on July 1, 2011, Governor Kasich signed into law House Bill 194 (“H.B. 194”). H.B. 194 contained numerous provisions that would have restricted the right to vote by absentee or provisional ballot. H.B. 194 contained some of the same provisions of S.B. 205 and S.B. 216 that this supplemental complaint challenges.

	  

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71. Opponents of H.B. 194 succeeded in placing a referendum on the November 2012 ballot. Rather than allow the referendum to go forward, the Ohio General Assembly repealed H.B. 194 effective August 15, 2012.
72. Defendants also took action that was designed to limit the right to vote by absentee ballot. For example, Defendant Secretary of State issued directives to cut back on early voting hours and reduce voters’ ability to cast absentee ballots in person following passage of a series of bills attempting to eliminate in-person early voting during the three days before an election. These actions were successfully challenged in another federal lawsuit, Obama for America v. Husted, S.D. Ohio Case No. 2:12-cv-636.
73. When the Republican-controlled Ohio General Assembly, Governor Kasich and Defendant Husted acted to limit the rights of and/or to disenfranchise absentee and provisional voters in Ohio, they intended to suppress the votes of African-American and Latino voters and, in addition, voters who support the Democratic Party.
74. Doug Preisse, the Franklin County Republican Party’s chairman, admitted to this intent when he reportedly stated: “I guess I really actually feel we shouldn’t contort the voting process to accommodate the urban—read African-American—voter turnout machine.”
75. A number of observers, including members and supporters of Plaintiff ODP, called Chairman Preisse’s remark patently racist.
76. In response, Matt Borges, the Ohio Republican Party’s executive director, reportedly stated that Mr. Preisse thought that he was speaking “off the record” when he made the remark to a reporter.
77. Less than a year after the November 2012 election—when H.B. 194 would have been subject to a referendum vote if it had not been repealed by the Ohio General Assembly— Republican members of the Ohio Senate sought to pass portions of H.B. 194 in separate bills.

	  

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78. Republican State Senator Bill Coley introduced S.B. 205 on October 10, 2013. The Ohio Senate passed it less than one month later on November 6, 2013. The Ohio House then passed it on February 19, 2014 and Governor Kasich signed it into law on February 21, 2014.
79. Republican State Senator Bill Seitz introduced S.B. 216 on October 29, 2013. The Ohio Senate passed the bill less than one month later on November 20, 2013. The Ohio House then passed it on February 26, 2014 and Governor Kasich signed it into law on February 28, 2014
80. On June 2, 2014, Defendant Husted issued Advisory 2014-04 to the county boards of elections summarizing changes enacted by S. B. 205, S. B. 216 and S. B. 238. On June 30, 2014, Defendant Husted prescribed Form 11-S for use by absentee voters with errors or omissions on their ID envelopes. On July 2, 2014, Defendant Husted issued Directives 2014-18 [Absentee Ballots], 2014-19 [UOCAVA Ballots] and 2014-20 [Provisional Ballots] providing instructions implementing the three referenced Senate Bills.
81. On July 10, 2014, counsel for the Ohio Democratic Party delivered a letter to Defendant Husted noting specific concerns about: (1) the inadequacy of notice or lack of notice to absentee and provisional voters concerning errors, omissions or non-conforming information on their absentee ID envelopes or provisional affirmations; (2) inadequate or no opportunity to cure errors or omissions; and (3) equal-protection issues regarding the same. The letter noted that the Secretary has broad authority to issue directives and instructions to the county boards of elections regarding the conduct of elections.
82. Following the July 10, 2014 letter and oral and email discussions with the staff of the Secretary of State’s office, Defendant Husted, on September 5, 2014, issued Directive 201427 setting forth additional procedures for boards to follow regarding notice to absentee voters

	  

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who had errors or omissions on their ID envelopes or when there was a mismatch with the SVR database, and setting forth additional procedures regarding how such absentee voters could cure such errors or omissions. The Directive addressed many but not all of the issues raised by in the July 10, 2014 letter regarding absentee voters, but none of the issues raised regarding provisional voters. On the same date, Defendant Husted also re-prescribed Form 11-S for use by absentee voters, which in large measure addressed the principal concern about the form raised in the July 10th letter. Defendant Husted has declined, however, to resolve other issues, including: lack of notice to and opportunity to cure for provisional voters with an error or omission on their provisional affirmation form or a mismatch with the SVR database; requiring boards to attempt to contact voters by phone or email, in addition to mail, when the board has the voter’s phone number or email address; setting uniform standards for determining when a printed name or address is not complete or when a signature does not conform to the voter’s signature on file; requiring boards to not reject absentee and provisional ballots due to uncorrected birthdate errors when all other required information has been provided; and requiring boards to use a unified poll book in multi-precinct polling locations. V. Challenged provisions of S.B. 205 and S.B. 216.
83. Plaintiffs challenge the following provisions of S.B. 205 and S.B. 216 that will unlawfully disenfranchise thousands of Ohio voters who cast absentee or provisional ballots.
A. Absentee voters: Mandatory fields on absentee ID envelope 84. S. B. 205 and S. B. 216 and Secretary of State directives require boards of elections to reject ballots cast by absentee voters who have an error or omission on the form printed on their ID envelope (Form 11) as to the month and/or day of their date of birth, signature or ID (i.e., last four digits of their social security number, full Ohio driver’s license number (ODLN), or a copy of one of the permissible forms of documentary ID) or if the date of

	  

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birth or ID (SSN or ODLN) does not conform to information in the SVR Database, or the voter’s signature does not reasonably match the voter’s signature on file with the board, unless the voter supplies or corrects the information using Form 11-S, prescribed by the Secretary of State, no later than seven days after the election. The voter cannot, however, correct or challenge an incorrect date of birth, social security number, or driver’s license number in the SVR Database.
85. Boards are required to reject the ballot in such cases even though the voter supplied the correct information as to date of birth and ID to the board on or with the absenteeballot application that the board validated before delivering the ballot to the voter and even where the date of birth or SSN or ODLN on the ID envelope is clearly apparent as an error when compared to the application or other board records—and the identity of the voter is not in question; thus imposing an unnecessary burden on voters and disenfranchising voters without sufficient or legitimate cause.
B. Absentee voters: Notice of opportunity to cure 86. Boards of Elections are required to mail by U. S. first-class mail notice to the voter of the omission, error, or mismatch and of their right to supply or correct the information on the ID envelope using Form 11-S no later than seven days after the election. No notice is sent to absentee voters whose ballots are received by the board later than six days after the election. Boards are apparently not permitted to provide additional notice via telephone or electronic mail even if the voter has provided such contact information and even when such methods may be more effective in quickly reaching a voter to provide notice to cure within a very brief timeframe. Further, many notices mailed on the sixth day after the election, or even two or three days earlier, will not be delivered by the post office until after the seven-day cure period has lapsed or, if delivered on the last day of the period, not in sufficient time for the voter to respond because it

	  

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will be too late to travel to the board of elections or have the return envelope postmarked that day by the post office. Thus, as a result of a statutory scheme that fails to provide for a minimum period for providing notice prior to expiration of the cure period and limits how notice is provided, some voters will receive adequate notice and opportunity to cure while others will not.
87. Further, given that the period to cure omissions or errors on the ID envelope inexplicably ends three days before the deadline under Ohio law to actually return the ballot by mail, ten days after the election, some absentee voters with the same error or omission will be mailed a notice and have an opportunity to cure, while others will not. Indeed, voters whose ballots are received during the final four days of the period will not even be sent a notice because it would be pointless.
88. A voter who does receive a notice prior to expiration of the cure period and is able to complete Form 11-S and postmark it by the seventh day after the election will be deemed to have timely submitted the form if it is received by the tenth day after the election. Alternatively, the voter, or certain relatives of the voter statutorily authorized to return the voter’s ballot, may personally deliver the form to the board by close of business on the seventh day after the election. It may not be delivered, however, by any other person chosen by the voter even though it is only a form, not the ballot, and the voter’s original application form, which contains the same information fields, can be personally delivered to the board by any person the voter choses. Further, in most cases the form is not required to be signed by the voter. Thus, a voter faced with a very short period to cure an error or omission may be deprived of the opportunity to do so even though there is someone who could timely return the form on the voter’s behalf.
C. Absentee Voters: date of birth 89. Although the statutes provide that an absentee ballot may not be counted if the voter has not filled in or has incorrectly filled in his or her date of birth or if the date of birth does

	  

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not conform to the SVR database, the law then creates two exceptions. First is that the year can be wrong so long as the month and day are correct. Second is when a board of elections by a vote of at least three members determines that the voter has correctly supplied the other required information, namely signature and ID. Thus, the statute itself acknowledges that the date of birth is unnecessary to identifying the voter when the other mandated information is provided. Yet, it leaves to each board’s discretion whether to enforce the date-of-birth requirement. This may result in different treatment of similarly situated voters from county to county, and even within a county. Some will be required to timely file Form 11-S and others will not be. Some voters will be required to jump over this additional hurdle to have their ballot counted and others will not. Indeed, given, as explained above, that some absentee voters will not be given any opportunity or any realistic opportunity to cure based on timing issues, the potential unequal treatment and disenfranchisement of these voters with birthdate issues is even more egregious. Further, the Secretary of State could, but has not, directed the county boards to follow a uniform practice by voting to establish a policy that absentee ballots will not be rejected due to birthdate issues on the form if the other four fields have been properly completed.
D. Absentee Voters: Missing ID envelope 90. A frequent basis for not counting absentee ballots is when the ballot is mailed back to the board of elections by the voter in the return envelope provided by the board, but without including the separate ID envelope. These absentee voters are effectively in the same position as voters who enclose the ballot in the ID envelope but fail to complete the mandatory fields on the ID envelope. In both cases, the voter has failed to provide the required information. One group, however—those who placed the ballot in the ID envelope—will have an opportunity to cure any and all incomplete portions of the ID envelope, while the other group—those who did not return the ID envelope with the ballot—will not. Voters who cast their ballots without returning the ID

	  

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envelope can be identified by the board of elections by the ballot stub number, giving the board the ability to send the same notice to cure as is sent to voters who returned the ballot in the ID envelope but did not fill out the envelope.
E. Absentee Voters: Signature conformity 91. An absentee ballot may be rejected if the voter’s signature on the ID envelope does not reasonably match the voter’s signature “on file” with the board. In which case, the voter is to be sent a notice and asked to submit his or signature using Form 11-S. There are no guidelines set forth in the law or Secretary of State directives, however, as to what “reasonably match” means, such as whether a full formal first name, middle initial and suffix after the surname must be provided if they are contained in the voter’s signature on file at the board, or whether it must be fully cursive if the signature on file is fully cursive. Further, the notice to the voter simply informs the voter that his or her signature did not match their voter-registration record and asks the voter to “provide your signature.” There is no explanation to the voter of the nature of the mismatch. Thus, it is likely that many voters will sign the form the same way they signed the ID envelope and not cure whatever the board’s issue is with the signature. The result will be disenfranchisement due to inadequate notice, including when there is no reasonable doubt as to the voter’s identity. Further, there will be different standards applied from county to county or within the same county from voter to voter. In addition, it is unclear what is meant by “on file.” Some boards will interpret this as the voter-registration card, others as the most recent poll-book signature or even the signature on the absentee-ballot application form, all of which may vary considerably for the same voter. F. Absentee Voters: State identification number

	  

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92. Unlike for provisional voters, an absentee voter is not able to use a state identification card number to vote (i.e., by writing the identification card number on the ID envelope), but rather must provide a copy of the state identification card.
G. Provisional Voters: Mandatory fields on provisional-voter form 93. As with absentee voters who must complete a form at the time they vote, namely, the form printed on what is known as the ID envelope, provisional voters must complete a Provisional Ballot Affirmation, Form 12-B, which requires the same five fields of voter information. S. B. 216 and Secretary of State directives require boards of elections to reject ballots cast by provisional voters who have an error or omission on the provisional form with respect to the voter’s printed name, address, month and/or day of their date of birth, signature or ID (i.e., last four digits of their social security number, full Ohio driver’s license or full state ID number or failure to check-mark one of three boxes on the form indicating that one of the permissible forms of documentary ID was shown to the precinct election official) or if the printed name, address (except in the case of a change of address), date of birth or ID (SSN, ODLN or OSIN) does not conform to information in the SVR Database, or the voter’s signature does not reasonably match the voter’s signature on file with the board. Previously, provisional ballots could not be rejected based on address because the voter was not required to write his address on the form. 94. Boards are required to reject the ballot in such cases even where the error on the form is clearly apparent as an error when compared to the board records and the voter’s identity is not in question, thus imposing an unnecessary burden on voters and disenfranchising voters without sufficient cause. There is one narrow exception for a voter whose form has a problem on the ID portion (error, omission, box not check-marked, or mismatch with SVR database). The ballot will be counted, assuming no other problem, if the voter personally appears at the county

	  

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board of elections office no later than seven days after the election and corrects or supplies the ID information and, if the voter is showing documentary ID, also check-marks one of the three boxes. The voter cannot, however, correct or challenge any incorrect information regarding name, address, date of birth, social-security number, driver’s license, or state ID number in the SVR Database. Further, S. B. 216 has reduced the period for provisional voters to correct or supply ID from ten to seven days after the election.
95. As set forth above, a provisional voter who shows one of the permitted forms of documentary ID to the precinct election official must also check-mark one of three boxes indicating that he or she has done so. Previously, it was the precinct election official’s responsibility to specify on the form the type of ID provided or to specify on the form that the voter must still provide ID to the board. Further, it was the precinct election official’s responsibility to sign a statement on Form 12-B below the portion of the form the voter completes confirming that the voter had executed the affirmation form and then the voter was entitled to cast a provisional ballot. S. B. 216 repeals both of these precinct-election-official responsibilities.
H. Provisional Voters: Notice and opportunity to cure 96. Except for the one narrow circumstance described above, a provisional voter whose form has an error or omission in any of the other four information fields (name, address, date of birth, signature) or a mismatch with the SVR database regarding their name, address, or date of birth is not permitted to cure the error or omission after the election and, hence, is not sent any notice of the error, omission, or mismatch that will cause his or ballot to not be counted. Further, even though there is technically the right to cure an ID error or omission during the seven days after the election, no notice is provided to the voter of the error, omission, or mismatch. Thus, the voter will not necessarily know of the problem.

	  

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97. Absentee and provisional voters are similarly situated voters as to the five information fields they are required to correctly and fully complete, to not be disenfranchised. Only absentee voters, however, are mailed a notice if there is a problem (an error, omission, or mismatch with the SVR database) with any of the five fields. Provisional voters are not mailed a notice for the same issues. Further, even if a provisional voter became aware of a problem, other than as to the ID field, he or she is not permitted to cure the problem post-election, even though absentee voters are. And as to a problem with the ID field, assuming that a provisional voter is aware of the problem, he or she must personally appear at the board office to correct an error on the ID portion of the form or supply missing ID information and also check-mark the appropriate box if showing documentary ID. Absentee voters, on the other hand, may address the exact same issues by mail, in person, or by entrusting personal delivery to a relative.
I. Provisional Voters: Date of birth 98. Although the statutes provide that a provisional ballot may not be counted if the voter has not filled in or has incorrectly filled in his or her date of birth or if the date of birth does not conform to the SVR database, the law then creates two exceptions. First is that the year can be wrong so long as the month and day are correct. Second is when a board of elections by a vote of at least three members determines that the voter has correctly supplied the other required information, namely printed name, residence address, signature, and ID. Thus, the statute itself acknowledges that the date of birth is unnecessary to identifying the voter when the other mandated information is provided. Yet, it leaves to each board’s discretion whether to enforce the date-of-birth requirement. This may result in different treatment of similarly situated voters from county to county and even within a county. Some will have their ballots counted and others will not. The situation is exacerbated by the unequal treatment of provisional and absentee voters, with most absentee voters being afforded notice and an opportunity to provide or correct

	  

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birthdate information, but provisional voters not being provided any notice or opportunity. Further, the Secretary of State could, but has not, directed the county boards to follow a uniform practice by voting to establish a policy that absentee ballots will not be rejected due to birthdate issues on the form, if the other four fields have been properly completed.
J. Provisional Voters: Printed name, address and signature conformity 99. A provisional ballot may be rejected if the voter does not print his or her full name on Form 12-B, does not write his or her current address on the form, or the voter’s signature on the form does not reasonably match to the voter’s signature on file with the board or if there is a mismatch between the printed name or address and the SVR database. There are no guidelines set forth in the law or Secretary of State Directives, however, as to what will and will not be acceptable as being a “full” printed name, how complete an address must be, or what “reasonably match” means regarding the signature. For example, it is unclear whether “full” means formal first name, middle initial and suffix after the surname if they are contained in the SVR database, whether a conforming signature must include a middle initial or suffix after the surname if part of the voter’s signature on file at the board, or whether the signature must be fully cursive if the signature on file is fully cursive. In addition, it is unclear what signature on file with the board should be used. Some boards will interpret this as the voter-registration card, others as the most recent poll book signature, which may vary considerably for the same voter. It is unclear whether the address the voter writes must include a directional designation, a correct road, street, avenue, etc. designation, or an apartment or unit number. The result of a lack of guidelines regarding these three mandatory components will be disenfranchisement of qualified voters, including when there is no reasonable doubt as to voter’s identity. Further, there will be different standards applied from county to county or within the same county from voter to voter. K. Provisional Voters: Current address

	  

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100. As set forth above, a provisional voter is required to write his or her current address on Form 12-B. There is a lack of clarity, however, whether this means the address at which the voter is registered to vote or the address at which the voter is living on the day he or she casts a provisional ballot. There are many reasons that a voter may have a current address that is different than the address at which he or she is registered to vote, but still be a qualified elector. For example, a college student’s current address may be a dormitory, but the student is registered at his or her parent’s address as entitled under Ohio law. Absentee voters do not face this risk of disenfranchisement because the absentee application asks for the voter’s home address and where to send the ballot if a different address. Further, the voter’s registration address is preprinted on the absentee ID envelope.
L. Provisional Voters: Prior registration address 101. S. B. 216 provides that the provisional-voter form inform the voter that failure to provide your former address will not cause your provisional ballot to be rejected. This is not always the case, however. A leading reason for voters casting provisional ballots is because they have moved without updating their voter-registration address before the deadline, which is 29 days before the election. In such cases, a board of elections must verify that the person was registered at another address somewhere in Ohio. If the voter showed a form of documentary ID at the time of voting, rather than writing the last four digits of his or her social security number or full Ohio driver’s license or state ID number, it may be difficult, if not impossible, to verify that the person is a registered voter. M. Provisional Voters: Wrong precinct, right polling place 102. A prevalent ground on which provisional ballots have been rejected is when a voter votes in the wrong precinct, but at the correct polling location. S. B. 216 provides that a

	  

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board of elections may by a vote of three of its members decide to combine the poll books for a multi-precinct polling location into a unified poll book. Doing so eliminates casting a provisional ballot in the wrong precinct when the voter is in the correct polling location. Because this is discretionary with each county board of elections, however, provisional voters in counties where the board does not vote to combine the poll books will be at greater risk of their provisional ballot not being counted at all or only partially counted if they are cast in the wrong precinct, but correct polling location; while the provisional voter at a polling place where the precinct poll books have been combined will have all of his or her votes counted. Further, S. B. 216 provides that if the precinct election official correctly completes a form the Secretary of State prescribes (Form 12-D) stating that he or she informed the voter of their correct precinct, then the precinct election official will be “deemed” to have directed the voter to the correct precinct, even if that is not the case.
N. Provisional Voters: Wrong polling place 103. Ohio law requires precinct election officials to inform persons, who appear to vote but are not residents of that precinct, of the location of their correct precinct and that if they vote in the wrong precinct, their ballot will not be counted. This duty is the same regardless of whether the voter is at the correct or incorrect polling location. S.B. 216 provides that in the case of a voter who casts a provisional ballot in the wrong precinct, but at the correct polling location, the ballot will be counted in full or part if the precinct election official failed to correctly complete a form prescribed by the Secretary of State (Form 12-D) that states that the precinct election official directed the voter to the correct precinct and informed the voter that his or her ballot will not be counted if cast in the wrong precinct. It makes no such provision, however, for the voter who is at the wrong polling location—despite the duty on the precinct election official being the same. Rather, it requires that such provisional ballots cannot be counted and the precinct

	  

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election official is not required to complete a form stating that the voter was informed of his or her correct precinct and that the ballot would not be counted if cast in the wrong precinct.
O. Provisional Voters: No ID 104. S. B. 216 repeals a provision of Ohio law that protected the right to vote of those individuals who do not have any of the permitted forms of identification. Previously, a person who did not possess a social security number, an Ohio driver’s license, an Ohio state ID card number, or one of the other allowable forms of ID could still cast a provisional ballot upon execution of an affirmation under penalty of election falsification that he or she does not possess any of the acceptable forms of ID. The ballot would be counted only if the board of elections determined that the person met the qualifications of an elector in the precinct. Such electors will now be disenfranchised. P. Provisional Voters: Access to information 105. As set forth above, a provisional voter, whose affirmation form did not provide his or her social security number’s last four digits, or full driver’s license or state ID number, or who failed to check-mark one of three boxes regarding other forms of ID, or who have an ID error or mismatch, will not have their ballot counted unless the voter personally comes to the board of elections no later than seven days after the election and provides such information. S. B. 216 appears to prohibit access to the identity of such voters, except by the individual voter; thus preventing Plaintiffs and other third-party voter-protection organizations from being able to notify voters that their ballot will not be counted unless they timely address the matter. By contrast, access to the identity of absentee voters who must correct or supply information to the board within the same seven-day period is provided to third-party organizations. 106. Plaintiffs and their members and supporters will be irreparably harmed if the foregoing provisions of S.B. 205 and S.B. 216 are not preliminarily and permanently enjoined.

	  

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COUNT ONE VIOLATION OF THE VOTING RIGHTS ACT, 42 U.S.C. § 1973AA AND 42 U.S.C. § 1983
(BAN ON LITERACY TESTS) 107. Plaintiffs restate each of the allegations contained in each of the paragraphs above as if they were fully set forth here. 108. The Voting Rights Act, 42 U.S.C. § 1973aa, imposed a nationwide ban on literacy tests that were historically used by various states to disenfranchise minority voters, including African-American and Latino voters. 109. Section 1973aa(a) provides that “[n]o citizen shall be denied, because of his failure to comply with any test or device, the right to vote in any federal, State, or local election conducted in any State or political subdivision of a State.” 110. Section 1973aa(b) defines the term “test or device” to include “any requirement that a person as a prerequisite for voting or registration for voting ... demonstrate the ability to read, write, understand, or interpret any matter [or] demonstrate any educational achievement or his knowledge of any particular subject .....” 111. S.B. 205 and S.B. 216 require that Ohio voters who cast absentee or provisional ballots are able to and in fact do thoroughly read, completely understand, and perfectly fill out the Provisional Form or Absentee Envelope as a precondition of having their vote counted, regardless of whether they are otherwise qualified, registered, and eligible to vote. 112. S.B. 205 and S.B. 216 require that Ohio voters who wish to cast absentee or provisional ballots and are unable to fill out the applicable forms without help from the election official must know that Ohio law requires them first to declare that they need assistance because of blindness, disability, or illiteracy. 113. Thousands of Ohio voters, including Plaintiffs’ members and supporters, will be disenfranchised by their inability or failure to thoroughly read, completely understand, and/or

	  

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properly interpret the requirements of the Provisional Form or Absentee Envelope, as well as because of their ignorance of the requirement that they must declare that they need assistance due to blindness, disability, or illiteracy as a condition of receiving help filling out these forms.
114. Thousands of Ohio voters, including Plaintiffs’ members and supporters, will suffer direct and irreparable injury as a result of S.B. 205 and S.B. 216.
115. The challenged provisions of S.B. 205 and S.B. 216 should therefore be permanently enjoined, and Plaintiffs should be awarded declaratory relief and their costs and reasonable attorneys’ fees.
COUNT TWO VIOLATION OF THE VOTING RIGHTS ACT, 42 U.S.C. § 1971 AND 42 U.S.C. § 1983
(IMMATERIAL ERRORS/OMISSIONS) 116. Plaintiffs restate each of the allegations contained in each of the paragraphs above as if they were fully set forth here. 117. The Voting Rights Act, 42 U.S.C. § 1971, prohibits States from disenfranchising voters based upon immaterial errors or omissions in any voting-related record or paper. 118. Section 1971(a)(2)(B) provides: “No person acting under color of law shall ... deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election.” 119. S.B. 205 and S.B. 216 will cause thousands of Ohio voters who cast absentee or provisional ballots to suffer the severe and irreparable harm of disenfranchisement solely because of technical and immaterial errors/omissions on a Provisional Form or Absentee Envelope and/or mismatches with the SVR Database, even if the applicable Board of Elections can otherwise determine that the voter is qualified, registered, and eligible to vote.

	  

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120. Tens of thousands of Ohio voters, including Plaintiffs’ members and supporters, will suffer direct and irreparable injury as a result of S.B. 205 and S.B. 216.
121. The challenged provisions of S.B. 205 and S.B. 216 should therefore be permanently enjoined, and Plaintiffs should be awarded declaratory relief and their costs and reasonable attorneys’ fees.1
COUNT THREE VIOLATION OF THE FOURTEENTH AMENDMENT AND 42 U.S.C. § 1983
(PROCEDURAL DUE PROCESS) 122. Plaintiffs restate each of the allegations contained in each of the paragraphs above as if they were fully set forth here. 123. The right to vote is fundamental and is one of the most important rights in our democratic society. It is protected by the United States Constitution, which protects the right of all qualified citizens to vote in elections for federal office. 124. Plaintiffs’ members and supporters have a liberty interest in the right to vote that is protected by the Due Process Clause of the Fourteenth Amendment. 125. The challenged provisions of S.B. 205 and S.B. 216 threaten to deprive Plaintiffs’ members and supporters of their right to vote without due process of law. 126. Specifically, the challenged laws do not require reasonable notice of or reasonable opportunity to correct errors or omissions on a Provisional Form or Absentee Envelope or to challenge incorrect information in the SVR database prior to rejection of a provisional or absentee ballot on such grounds. 127. The challenged laws also do not require that disenfranchised voters be provided
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	   
1 Although Plaintiffs acknowledge that the Sixth Circuit has held that there is no private right of action under 42 U.S.C. § 1971, there is a circuit split on the issue. Compare McKay v. Thompson, 226 F.3d 752 (6th Cir. 2000) with Schwier v. Cox, 340 F.3d 1284 (11th Cir. 2003). This claim is included to preserve the issue for appeal.

	  

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with notice of the fact and reason(s) of the denial of their right to vote, or be given an opportunity to correct any errors, omissions or mismatches so that their votes will be counted in future elections.
128. The right to vote is a fundamental constitutional right. 129. The challenged laws create a significant risk that Plaintiffs’ members and supporters will be erroneously deprived of their right to vote. 130. It is probable that additional safeguards will be of value in protecting the right to vote. 131. The State’s asserted interests in the challenged laws do not justify the failure to provide adequate due process before depriving Plaintiffs’ members and supporters of their right to vote. 132. Because no administrative remedy can cure the disenfranchisement of the right to vote after certification of election results, post-deprivation procedures are not sufficient to satisfy the requirements of due process. 133. Thousands of Ohio voters, including Plaintiffs’ members and supporters, will suffer direct and irreparable injury as a result of S.B. 205 and S.B. 216. 134. S.B. 205 and S.B. 216’s challenged provisions should thus be permanently enjoined, and Plaintiffs should be awarded declaratory relief and their costs and reasonable attorneys’ fees.

	  

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COUNT FOUR VIOLATION OF THE FIRST AND FOURTEENTH AMENDMENTS AND 42 U.S.C. § 1983
(UNDUE BURDEN ON SPEECH AND ASSOCIATION RIGHTS) 135. Plaintiffs restate each of the allegations contained in each of the paragraphs above as if they were fully set forth here. 136. The First and Fourteenth Amendments prohibit the imposition of severe burdens on the right to vote unless they are narrowly drawn to advance a state interest of compelling importance. 137. Even where burdens on the right to vote are not severe, the First and Fourteenth Amendments prohibits them if they are not justified by relevant and legitimate state interests that are sufficiently weighty to justify the limitations. 138. As shown above, S.B. 205 and S.B. 216 will severely burden the fundamental right to vote of tens of thousands of Ohio voters who cast absentee and provisional ballots by imposing restrictions that go beyond mere inconvenience and that represent a significant increase over the usual burdens of voting. 139. The voting restrictions imposed by S.B. 205 and S.B. 216 are not reasonable, generally applicable, nondiscriminatory or neutral. 140. The State of Ohio has not asserted, and cannot assert, any interest (much less an interest of compelling importance) that justifies imposing and/or makes it necessary to impose these severe burdens upon the rights of Ohio voters who cast absentee or provisional ballots. 141. Thousands of Ohio voters, including Plaintiffs’ members and supporters, will suffer direct and irreparable injury as a result of S.B. 205 and S.B. 216. 142. The challenged provisions of S.B. 205 and S.B. 216 should therefore be permanently enjoined, and Plaintiffs should be awarded declaratory relief and their costs and reasonable attorneys’ fees.

	  

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COUNT FIVE VIOLATION OF THE FOURTEENTH AMENDMENT AND 42 U.S.C. § 1983
(EQUAL PROTECTION/LACK OF UNIFORM STANDARDS) 143. Plaintiffs restate each of the allegations contained in each of the paragraphs above as if they were fully set forth here. 144. The Fourteenth Amendment’s Equal Protection Clause protects the right of every qualified voter to vote and have that vote be counted on equal terms with other qualified voters. 145. The State is required to treat similarly situated ballots cast by provisional voters and absentee voters equally. 146. Boards of elections will necessarily exercise their discretion when determining whether to count provisional ballots after Election Day. This circumstance raises significant constitutional concerns because the preliminary outcome of the election is already known. It is therefore especially important to apply uniform rules and specific standards when determining whether to count or reject provisional ballots. 147. The lack of uniform standards in state law and/or directives from Defendant Husted with regard to the application of S.B. 205 and S.B. 216 will lead to the arbitrary and disparate treatment of absentee and provisional voters because it will inevitably cause Boards of Elections to treat similarly situated voters differently from county to county and within a county. 148. Thousands of Ohio voters, including Plaintiffs’ members and supporters, will suffer direct and irreparable injury as a result of S.B. 205 and S.B. 216. 149. The challenged provisions of S.B. 205 and S.B. 216 should therefore be permanently enjoined, and Plaintiffs should be awarded declaratory relief and their costs and reasonable attorneys’ fees.

	  

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COUNT SIX VIOLATION OF THE FOURTEENTH AMENDMENT AND 42 U.S.C. § 1983
(EQUAL PROTECTION/ARBITRARY AND DISPARATE TREATMENT) 150. Plaintiffs restate each of the allegations contained in each of the paragraphs above as if they were fully set forth here. 151. The Fourteenth Amendment’s Equal Protection Clause prohibits the arbitrary and disparate treatment of voters. 152. The challenged provisions of S.B. 205 and S.B. 216 treat similarly situated voters in an arbitrary and disparate manner without lawful justification. 153. Thousands of Ohio voters, including Plaintiffs’ members and supporters, will suffer direct and irreparable injury as a result of S.B. 205 and S.B. 216. 154. The challenged provisions of S.B. 205 and S.B. 216 should therefore be permanently enjoined, and Plaintiffs should be awarded declaratory relief and their costs and reasonable attorneys’ fees.
COUNT SEVEN VIOLATION OF THE FOURTEENTH AMENDMENT AND 42 U.S.C. § 1983
(SUBSTANTIVE DUE PROCESS) 155. Plaintiffs restate each of the allegations contained in each of the paragraphs above as if they were fully set forth here. 156. The Due Process Clause of the Fourteenth Amendment to the United States Constitution protects against extraordinary voting restrictions that render the voting system fundamentally unfair. 157. The challenged provisions of S.B. 205 and S.B. 216 constitute extraordinary voting restrictions that render the voting system fundamentally unfair. Among other things, it is fundamentally unfair to disenfranchise Ohio voters who cast absentee or provisional ballots based solely upon technical and immaterial errors/omissions on a Provisional Form or Absentee

	  

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Envelope and/or mismatches with the SVR Database, even if the applicable board of elections can otherwise determine that the voter is qualified, registered, and eligible to vote.
158. Thousands of Ohio voters, including Plaintiffs’ members and supporters, will suffer direct and irreparable injury as a result of S.B. 205 and S.B. 216.
159. S.B. 205 and S.B. 216’s challenged provisions should therefore be permanently enjoined, and Plaintiffs should be awarded declaratory relief and their costs and reasonable attorneys’ fees.
COUNT EIGHT VIOLATION OF THE VOTING RIGHTS ACT, 42 U.S.C. § 1973 AND 42 U.S.C. § 1983
(SECTION 2 RACE DISCRIMINATION) 160. Plaintiffs restate each of the allegations contained in each of the paragraphs above as if they were fully set forth here. 161. The Voting Rights Act, 42 U.S.C. § 1973 (commonly referred to as “Section Two”), outlaws the use of any standard, practice, procedure, qualification, or prerequisite to voting that denies the right of any United States citizen to vote on account of his or her race. 162. Section 1973(a) provides, in relevant part: “No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State ... in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” 163. Pursuant to Section 1973(b), a violation is established if members of a particular race or color “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” 164. S.B. 205 and S.B. 216 will cause thousands of Ohio voters who cast absentee or provisional ballots to suffer the severe and irreparable harm of disenfranchisement solely because of technical and immaterial errors and/or omissions on a Provisional Form or Absentee

	  

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Envelope, even if the applicable Board of Elections can otherwise determine that the voter is qualified, registered, and eligible to vote.
165. These provisions of S.B. 205 and S.B. 216 are a voting qualification, prerequisite, standard, practice or procedure that will result in a denial or abridgement of the rights of Plaintiffs’ members and supporters to vote on account of race or color.
166. The unlawful, severe, and irreparable harm of disenfranchisement caused by these challenged provisions was intended to and will have a disparate impact on African-American and Latino voters.
167. The challenged provisions of S.B. 205 and S.B. 216 also will have a discriminatory result because:
a. The laws will interact with social and historical conditions in Ohio to cause an inequality in the opportunities enjoyed by African-American and Latino voters to elect their preferred representatives;
b. The disproportionate impact will result from the fact that minority voters suffer from the effects of prior discrimination, including inferior education, segregated housing, poor employment opportunities, low incomes and poverty; and
c. The disproportionate impact will result from the interaction of the challenged law with the effects of past and/or present discrimination and will not be merely a product of chance.

	  

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168. The totality of circumstances shows that political processes in Ohio are not equally open to participation by minority voters in that they have less opportunity than white voters to participate in the political process and to elect representatives of their choice. For example:
a. Voting in statewide elections is racially polarized; b. Minority individuals in the state bear the effects of discrimination in such
areas as education, employment and health, which hinder their ability to participate effectively in the political process; c. Minority candidates have been relatively unsuccessful in being elected to statewide public office; d. Elected officials have demonstrated a significant lack of responsiveness to the particularized needs of minorities; and e. The policy underlying the challenged provisions of S.B. 205 and S.B. 216 is tenuous at best. 169. Tens of thousands of African-American and Latino voters, including Plaintiffs’ members and supporters, will suffer direct and irreparable injury as a result of S.B. 205 and S.B. 216. 170. The challenged provisions of S.B. 205 and S.B. 216 should therefore be permanently enjoined, and Plaintiffs should be awarded declaratory relief and their costs and reasonable attorneys’ fees.

	  

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COUNT NINE VIOLATION OF THE FOURTEENTH AND FIFTEENTH AMENDMENTS AND 42 U.S.C. § 1983
(INTENTIONAL RACE DISCRIMINATION) 171. Plaintiffs restate each of the allegations contained in each of the paragraphs above as if they were fully set forth here. 172. The Equal Protection clause of the Fourteenth Amendment to the United States Constitution prohibits the states from “deny[ing] to any person within its jurisdiction the equal protection of the laws.” This provision prevents a State from discriminating against Ohio voters on account of their race or color. 173. The Fifteenth Amendment to the United States Constitution states that “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” 174. A motivating purpose behind S.B. 205 and S.B. 216 was to suppress the number of votes cast by African-American and Latino voters in Ohio’s urban counties, who disproportionately cast their votes by absentee or provisional ballots. As noted above, S.B. 205 and S.B. 216 will be successful in effectuating that purpose. 175. The historical background of universal absentee voting in Ohio and the sequence of events leading up to the enactment of S.B. 205 and S.B. 216 indicate that race was a motivating factor in the law’s enactment. 176. The presence of intentional race discrimination invalidates S.B. 205 and S.B. 216 under the Fourteenth and Fifteenth Amendments. 177. Tens of thousands of Ohio voters, including Plaintiffs’ members and supporters, will suffer direct and irreparable injury as a result of S.B. 205 and S.B. 216.

	  

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178. The challenged provisions of S.B. 205 and S.B. 216 should therefore be permanently enjoined, and Plaintiffs should be awarded declaratory relief and their costs and reasonable attorneys’ fees.
COUNT TEN VIOLATION OF THE FIRST AND FOURTEENTH AMENDMENTS AND 42 U.S.C. § 1983
(VOTER SPEECH/VIEWPOINT & ASSOCIATION DISCRIMINATION) 179. Plaintiffs restate each of the allegations contained in each of the paragraphs above as if they were fully set forth here. 180. The First and Fourteenth Amendments prohibit states from abridging the freedoms of speech and association and the right to equal protection of the laws. 181. The manipulation and distortion of a State’s electoral system to gain a partisan advantage in the casting and counting of votes—including by creating barriers that fall disparately upon a class of voters based upon their actual or suspected viewpoint—violates the First and Fourteenth Amendments. 182. The challenged provisions of S.B. 205 and S.B. 216 were intended to and will impose severe and undue burdens on Ohio voters who cast absentee and provisional ballots based upon their actual or suspected political viewpoint. 183. Ohio voters who cast absentee and provisional ballots are more likely to cast their votes in favor of candidates from the national, state, or local Democratic Party than in favor of candidates from the national, state, or local Republican Party. 184. When they enacted and signed S.B. 205 and S.B. 216 into law, the Republicancontrolled Ohio General Assembly and Republican Governor Kasich intended to and did impose burdens and barriers to voting that will fall most heavily upon Ohio voters who cast absentee or provisional ballots.

	  

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185. In so doing, the Ohio General Assembly and Governor Kasich acted upon their expectations that the voters who would be disparately impacted and burdened and in some cases disenfranchised (i.e., those that cast absentee and provisional ballots) are likely to cast their votes in favor of Democratic Party candidates rather than Republican Party candidates.
186. Therefore, S.B. 205 and S.B. 216 unlawfully discriminate against Ohio voters who cast absentee and provisional ballots based on the State of Ohio’s expectation that when they cast their votes more of them will express and exercise a political preference (speech/viewpoint and association) in favor of a certain political party (i.e. the national, state or local Democratic Party), in violation of the First and Fourteenth Amendments to the United States Constitution.
187. Tens of thousands of Ohio voters, including Plaintiffs’ members and supporters, will suffer direct and irreparable injury as a result of S.B. 205 and S.B. 216.
188. S.B. 205 and S.B. 216’s challenged provisions should therefore be permanently enjoined, and Plaintiffs should be awarded declaratory relief and their costs and reasonable attorneys’ fees.
THUS, Plaintiffs pray and request that the Court grant the following relief: a) Enter a declaratory judgment under 28 U.S.C. § 2201 declaring that S.B. 205 and S.B. 216’s challenged provisions violate federal law, are null and void, and are either facially unconstitutional or are unconstitutional as applied to Plaintiffs’ members and similarly situated Ohio voters; b) Enter a permanent injunction that restrains and enjoins Defendants from enforcing or applying S.B. 205 and S.B. 216’s challenged provisions as to either all Ohio voters (facial invalidity) or Plaintiffs’ members and similarly situated Ohio voters (as-applied invalidity);

	  

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c) Award Plaintiffs their reasonable attorneys’ fees and costs; and d) Award Plaintiffs such other and further relief that the Court deems just and
equitable. Respectfully submitted,

/s/ Subodh Chandra Subodh Chandra, Trial Attorney (0069233) Donald P. Screen (044070) Ashlie Case Sletvold (0079477) Sandhya Gupta (0086052) THE CHANDRA LAW FIRM, LLC 1265 W. 6th St., Suite 400 Cleveland, OH 44113-1326 216.578.1700 Phone 216.578.1800 Fax Subodh.Chandra@ChandraLaw.com Donald.Screen@ChandraLaw.com Ashlie.Sletvold@ChandraLaw.com Sandhya.Gupta@ChandraLaw.com

/s/ Caroline H. Gentry [per consent] Caroline H. Gentry (0066138) PORTER, WRIGHT, MORRIS & ARTHUR LLP One South Main Street, Suite 1600 Dayton, OH 45402 937.449.6748 Phone 937.449.6820 Fax cgentry@porterwright.com

Attorneys for Plaintiffs NEOCH and Columbus Coalition for the Homeless

/s/ Donald McTigue [per consent] Donald J. McTigue, Trial Attorney (0022849) Mark A. McGinnis (0076275) J. Corey Colombo (0072398) MCTIGUE MCGINNIS & COLOMBO, LLC 545 East Town Street Columbus, OH 43215 614.263.7000 Phone 614.263.7078 Fax dmctigue@electionlawgroup.com mmcginnis@electionlawgroup.com ccolombo@electionlawgroup.com
Attorneys for Intervenor-Plaintiff Ohio Democratic Party

	  

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CERTIFICATE OF SERVICE
I certify that on August 10, 2015, my office filed the foregoing document using the Court’s online-filing system, which will send a copy of the foregoing to all counsel of record. /s/ Subodh Chandra One of the Attorneys for Plaintiffs

	  

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 Case: 2:06-cv-00896-ALM-TPK Doc #: 691 Filed: 06/07/16 Page: 1 of 115 PAGEID #: 33794

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

THE NORTHEAST OHIO COALITION :

FOR THE HOMELESS, et al.,

:

:

Plaintiffs,

: Case No. 2:06-CV-896

:

v.

: JUDGE ALGENON L. MARBLEY

:

JON HUSTED, in his official capacity as : Magistrate Judge Terence P. Kemp

Secretary of the State of Ohio,

:

:

Defendant.

:

FINAL JUDGMENT

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TABLE OF CONTENTS
I. Introduction .................................................................................................................... 1 II. Procedural History......................................................................................................... 1
A. 2010 Consent Decree ................................................................................................. 4 B. Second Supplemental Complaint ............................................................................... 7 III. Findings of Fact ........................................................................................................... 9 A. Parties ........................................................................................................................ 9
1. Plaintiffs ............................................................................................................. 9 a. NEOCH ......................................................................................................... 9 b. CCH ............................................................................................................ 13 c. ODP............................................................................................................. 14
2. Defendant ......................................................................................................... 15 B. Voting in Ohio ......................................................................................................... 15
1. Election-Day Voting ........................................................................................ 15 2. Absentee Voting............................................................................................... 16
a. In-Person Absentee Voting ......................................................................... 17 b. Mail-in Absentee Voting............................................................................. 17 3. Provisional Voting ........................................................................................... 18 C. The Challenged Laws .............................................................................................. 19 1. SB 205.............................................................................................................. 19 2. SB 216.............................................................................................................. 20 D. The Lead-up to SB 205 and SB 216 ........................................................................ 22 E. The Implementation of SB 205 and SB 216 ............................................................ 27 1. Individual Voter Testimony............................................................................. 27 2. Aggregate Data and Testimony from Board Officials ..................................... 30 3. Varied Board Practices .................................................................................... 31 F. Burden on Plaintiffs.................................................................................................. 33 1. Information Requirements ............................................................................... 33 2. Prohibition Against Poll-Worker Assistance ................................................... 34 3. Reduction of the Cure Period........................................................................... 35

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G. The State’s Justifications for Enacting the Challenged Laws ................................. 35 1. Information Requirements ............................................................................... 35 2. Prohibition Against Poll-Worker Assistance ................................................... 37 3. Reduction of the Cure Period........................................................................... 37
H. Disparate Impact ...................................................................................................... 38 1. Dr. Jeffrey Timberlake..................................................................................... 38 a. Background and Methodology .................................................................... 38 b. Conclusions Regarding Disparate Impact ................................................... 40 2. Dr. Nolan McCarty .......................................................................................... 42 3. Dr. M.V. “Trey” Hood ..................................................................................... 45 4. Conclusions from Expert Reports .................................................................... 47
I. Racial Discrimination................................................................................................ 48 1. The Senate Factors ........................................................................................... 48 a. Fifth Factor: Extent of Discrimination Hindering Participation in Political Process ....................................................................................... 49 b. First and Third Factors: Voting-Related Discriminatory Processes ........... 53 c. Second Factor: Racially Polarized Voting in Ohio ..................................... 56 d. Sixth Factor: Racialized Appeals in Politics ............................................... 57 e. Seventh Factor: Minority Representation.................................................... 59 f. Eighth Factor: Lack of Responsiveness ....................................................... 60 g. Ninth Factor: Tenuousness.......................................................................... 60 2. The Calculus of Voting .................................................................................... 61
IV. Conclusions of Law ................................................................................................... 62 A. Standing ................................................................................................................... 62 1. Organizational Standing................................................................................... 63 2. Associational or Representational Standing .................................................... 66 3. Third-Party Standing........................................................................................ 67

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B. Constitutional Claims............................................................................................... 69 1. Equal Protection: Undue Burden ..................................................................... 69 a. Information Requirements........................................................................... 72 b. Prohibition Against Poll-Worker Assistance .............................................. 76 c. Reduction of Cure Period ............................................................................ 77 2. Equal Protection: Disparate Treatment of Election-Day, Provisional, and Absentee Voters ............................................................................................ 79 3. Equal Protection: Lack of Uniform Standards................................................. 82 4. Procedural Due Process ................................................................................... 83 5. Substantive Due Process .................................................................................. 85 6. Race Discrimination under the Fourteenth and Fifteenth Amendments.......... 86 7. Viewpoint Discrimination................................................................................ 90
C. Voting Rights Act Claims ........................................................................................ 92 1. Section 2........................................................................................................... 92 a. SB 205 and SB 215 Have a Disparate Impact on African-Americans ........ 94 b. SB 205 and SB 216 Combine with the Effects of Past Discrimination to Interfere with the Voting Power of African-Americans ......................... 97 2. Materiality Provision ..................................................................................... 106 3. Literacy Test .................................................................................................. 107
V. Conclusion ................................................................................................................ 110

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I. INTRODUCTION Because the right to exercise the franchise “is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.” Reynolds v. Sims, 377 U.S. 533, 562 (1964). Throughout this protracted litigation, the Court has endeavored to fulfill its duty to scrutinize various restrictions of this basic right in Ohio. The current dispute centers on Plaintiffs’ challenge to certain portions of Senate Bills 205 (“SB 205”) and 216 (“SB 216”), which took effect on June 1, 2014 and made changes, respectively, to Ohio’s absentee- and provisional-voting regimes. Plaintiffs, the Northeast Ohio Coalition for the Homeless (“NEOCH”), the Columbus Coalition for the Homeless (“CCH”), and Plaintiff-Intervenor the Ohio Democratic Party (“ODP”), ask the Court to declare that the challenged portions of the laws are unconstitutional and violate the Voting Rights Act, and to enjoin the Secretary of State of Ohio (“Defendant” or “Secretary”) from enforcing them. The Court presided over a bench trial on the matter and, after carefully considering all of the evidence, issues its findings of fact and conclusions of law under Federal Rule of Civil Procedure 52(a). For the reasons that follow, the Court enters JUDGMENT in part for Plaintiffs, and JUDGMENT in part for Defendant. The Court finds that the new information requirements, prohibition against poll-worker assistance to voters, and reduction in the cure period in SBs 205 and 216 are unconstitutional and violate the Voting Rights Act (“VRA”). The Court ENJOINS the Secretary from enforcing them.
II. PROCEDURAL HISTORY The Court has recited the byzantine factual and procedural background of this case, and its related case, Service Employees International Union, Local 1 v. Husted, Case No. 2:12-cv-
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562 (the “SEIU case”) numerous times. (See Docs. 108, 383, 452; SEIU case, Docs. 90, 103.) For purposes of this Final Judgment, the following overview of the litigation’s history will suffice.
Plaintiffs NEOCH and the Service Employees International Union (“SEIU”) initiated this action against the Secretary on October 24, 2006. (Compl., Doc. 2 at 50-52.) The Complaint alleged that portions of recently-enacted Ohio election laws ran afoul of the Due Process and Equal Protection clauses of the Fourteenth Amendment to the United States Constitution, constituted a poll-tax in violation of the Twenty-Fourth Amendment, and violated 42 U.S.C. § 1971(a)(2)(A) and (B), sections of the Civil Rights Act of 1964. (Doc. 2 at 38-49.)
Plaintiffs challenged the new laws on the basis that they subjected voters to possible criminal penalties that were confusing, vague, and impossible to apply; placed an unequal and undue burden on election-day voters by requiring them to produce identification (“ID”) while exempting absentee voters from that requirement; imposed a poll tax by mandating that voters purchase a state-ID card or birth certificate; and treated provisional voters fundamentally unfairly by applying vague and internally inconsistent standards in a non-uniform manner. (Id. at ¶¶ 1-4.) Plaintiffs asked the Court to declare the challenged laws unconstitutional and to restrain the Secretary from enforcing those laws. (Id. at 50-51.)
The Court granted Plaintiffs’ motion for a temporary restraining order on October 26, 2006. (Order Granting Mot. for TRO, Doc. 17.) The Court exempted certain voters from some of the ID requirements of the challenged laws, and the Court found that phrases in the challenged laws were unconstitutionally vague and unequally applied by county Boards of Elections (“Boards”). (Id. at 3.) On November 1, 2006, the parties entered into a consent order, which applied only to the November 2006 general election, addressing and clarifying election-day,
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absentee, and provisional voter-ID requirements for the 2006 election. (Consent Order, Doc. 51.) The Consent Order reiterated the requirements of certain provisions of the state voter-ID Law, amended the ID requirements for in-person absentee voters, and defined the terms of the Secretary’s Directive 2006-78, which sought uniformity in administering the voter-ID law. (Id.)
On November 14, 2006, Plaintiffs filed a Motion to Enforce the Consent Order, alleging that some Boards were in violation of the 2006 Consent Order. (Mot. to Enforce Consent Order, Doc. 55.) The next day, all parties entered into an agreed enforcement order. (Doc. 57.) As with the Consent Order, the Enforcement Order set forth guidelines for the Secretary and Boards to follow in administering the election. (Id.)
Subsequently, on September 30, 2008, the Court found that Plaintiffs’ showing of member injury was sufficient to confer standing for only three of their six challenges to the voter-ID laws. (Order Granting in Part and Den. in Part Mot. to Dismiss for Lack of Jurisdiction, Doc. 108.)
On October 14, 2008, Plaintiffs moved the Court for a preliminary injunction that would enjoin the enforcement of Ohio voter-ID laws as unconstitutional, both facially and as applied to Plaintiffs’ homeless members and other similarly situated homeless Ohio voters in the 2008 general election. (Mot. for Prelim. Inj., Doc. 111.) On October 27, 2008, the Court adopted then-Secretary of State Jennifer Brunner’s directive resolving some of the issues in the Motion for Preliminary Injunction. (Order Granting Mot. for Prelim. Inj., Doc. 143.) The Court ordered the Secretary to instruct the Boards not to reject provisional ballots for reasons attributable to poll-worker error and not to reject provisional ballots when a voter with no fixed place of residence failed to list a building address on the form. (Id. at 2-3.)
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NEOCH and SEIU filed an amended supplemental complaint on November 21, 2008, adding CCH and individual homeless Ohio voters as additional Plaintiffs. (Am. Compl., Doc. 159 at ¶¶ 2-20.) The Amended Complaint made allegations regarding events that happened after the Complaint in the matter was filed, and added new claims based on those new facts in light of the Supreme Court’s decision in Crawford v. Marion County, 553 U.S. 181 (2008). According to the Amended Complaint, many homeless persons wishing to vote in the 2008 election did not have and could not easily obtain required ID. (Id. at ¶¶ 6-24.) Plaintiffs alleged that the Secretary and Boards administered the 2006 and 2008 general elections in violation of the Fourteenth and Twenty-Fourth Amendments. (Id. at ¶¶ 116-131.) Plaintiffs requested, among other remedies, a declaration from the Court that the voter-ID laws were unconstitutional, both facially and as applied to NEOCH, CCH, and their members. (Id. at ¶ 39a-b.)
A. 2010 Consent Decree On April 19, 2010, the parties entered into a consent decree. (Doc. 210.) The Consent Decree included various terms and orders, including an order for the Secretary to instruct Boards that voters who met certain criteria would be able to cast a valid provisional ballot using the last four digits of their Social Security number (“SSN-4”) as ID, and an order for the Secretary to instruct Boards that they could not reject ballots filed erroneously due to poll-worker error. (Id. at ¶ 5a-c.) Specifically, the parties stated in Section I of the Decree that: [i]n resolution of this action, the parties hereby AGREE to, and the Court expressly APPROVES, ENTERS, and ORDERS, the following . . . 1. The purposes of this Decree are to ensure that:
a. The fundamental right to vote is fully protected for registered and qualified voters who lack the identification required by the Ohio Voter ID Laws, including indigent and homeless voters—such as the Individual Plaintiffs and certain members of the Coalitions—who do not have a current address and cannot readily purchase a State of Ohio ID Card;
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b. These voters are not required to purchase identification as a condition to exercising their fundamental right to vote and have their vote be counted;
c. The legal votes cast by these voters will be counted even if they are cast by provisional ballot on Election Day;
d. These voters will not be deprived of their fundamental right to vote because of differing interpretations and applications of the Provisional Ballot Laws by Ohio’s 88 Boards of Elections;
e. These voters will not be deprived of their fundamental right to vote because of failures by poll workers to follow Ohio law. For purposes of this Decree[,] poll[-]worker error will not be presumed, but must be demonstrated through evidence; and
f. All legal votes that are cast by indigent and homeless voters on Election Day will be counted.
(Id. at ¶ 1.)
The Consent Decree enjoined the Boards to count provisional ballots cast by persons with
no ID other than the last four digits of their Social Security numbers so long as:
i. The individual who cast the provisional ballot is registered to vote;
ii. The individual is eligible to cast a ballot in the precinct and for the election in which the individual cast the provisional ballot;
iii. The provisional ballot affirmation includes a statement that the individual is registered to vote in the precinct in which the provisional ballot was cast and a statement that the individual is eligible to vote in the election in which the provisional ballot was cast;
iv. The individual’s name and signature appear in the correct place on the provisional ballot affirmation form, unless the voter declined to execute the affirmation and the poll workers complied with their statutory duties under R.C. 3505.182 and R.C. 3505.181(B)(6) when a voter declines to execute the affirmation;
v. The signature of the voter substantially conforms to the signature contained in the Board of Election’s records for that voter;
vi. The provisional ballot affirmation includes the last four digits of that voter's social security number, which is not found to be invalid;
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vii. The individual’s right to vote was not successfully challenged;
viii. The individual did not already cast a ballot for the election in which the individual cast the provisional ballot; and
ix. Pursuant to R.C. 3505.183(B)(2), the Board of Elections determines that, in addition to the information included on the affirmation, there is no additional information for determining ballot validity provided by the provisional voter or to the Board of Elections during the ten days after the day of the election that casts doubt on the validity of the ballot or the individual’s eligibility to vote.
(Doc. 210 at ¶ 5a.) The Consent Decree further enjoined the Boards from rejecting, for any of
the following reasons, a provisional ballot cast by a voter who uses only her SSN-4:
i. The voter provided the last four digits of a Social Security Number but did not provide a current driver’s license, state issued identification, or other document which serves as identification under Ohio law;
ii. The voter did not provide a date of birth;
iii. The voter did not provide an address that is tied to a house, apartment or other dwelling provided that the voter indicated that he or she resides at a non-building location, including but not limited to a street comer, alley or highway overpass located in the precinct in which the voter seeks to cast a ballot and that the nonbuilding location qualifies as the individual’s voting residence under R.C. 3503.02;
iv. The voter indicated that he or she is homeless;
v. The voter cast his or her provisional ballot in the wrong precinct, but in the correct polling place, for reasons attributable to poll[-]worker error;
vi. The voter did not complete or properly complete and/or sign the provisional ballot application for reasons attributable to poll[-]worker error; or
vii. The poll worker did not complete or properly complete and/or sign the provisional ballot application witness line and/or the provisional ballot affirmation form, except for reasons permitted by the governing statutes.
(Id. at ¶ 5b.)
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The Consent Decree originally was set to expire on June 30, 2013. (Id. at ¶ 9.) On August 5, 2013, on Plaintiffs’ motion, the Court extended the Consent Decree through December 31, 2016. (Order Granting in Part Mot. to Extend and Modify Consent Decree, Doc. 383 at 21.)
B. Second Supplemental Complaint On September 24, 2014, the State provided notice to the Court that SB 216 would amend portions of the Notice required under Article IV, ¶ 8 of the Consent Decree. (Notice, Doc. 425.) Specifically, Defendant provided that the following changes in the new law were relevant to, and would supersede, these terms of the Consent Decree: (i) the elimination of a procedure allowing an individual who refused to execute a provisional ballot affirmation to still cast a provisional ballot; (ii) the requirement that the provisional ballot voter provide his or her date of birth on the provisional ballot affirmation in order for the provisional ballot to count, and that if the day and month of the date of birth does not match that of the voter in the Statewide Voter Registration Database (the “SVR”), the ballot cannot be counted unless the SVR states that the voter’s date of birth is January 1, 1800, or the Board finds, by a vote of at least three members, that the voter has met all the other requirements; (iii) the requirement that the provisional ballot voter provide his or her current address on the provisional ballot affirmation; (iv) the revision of the time period a provisional ballot voter may appear at the Board to provide acceptable ID from ten to seven days; and (v) the requirement that a provisional ballot voter is responsible for completing all parts of the provisional ballot affirmation. (Id. at 2-3.) On October 30, 2014, Plaintiffs filed their Motion for Leave to File a Second Supplemental Complaint. (Mot. for Leave to File Second Suppl. Compl., Doc. 429). The Court granted the Motion on August 7, 2015 (Order Granting Mot., Doc. 452 at 26), later deeming the
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Second Supplemental Complaint to have been filed on October 30, 2014. (See Order, Doc. 642 at 6.) This is now the operative complaint in the case.
Plaintiffs contend that the contested portions of SB 205 and SB 216, in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment, as well as the First and Fifteenth Amendments, abridge, burden, and/or deny voting rights by:
 Requiring Boards to reject absentee and provisional ballots on the basis of technical errors or omissions, or mismatches with the SVR database—such as errors in the month and/or day of the voter’s date of birth, signature or ID—even when the information sought is otherwise verifiable and the voter’s identity is not in question;
 For absentee voters, creating a period to cure errors that is shorter than the period for timely submitting ballots (and shorter than the period within which one might receive notice of any errors);
 For provisional ballot voters, shortening the period for correcting ID issues and providing no opportunity to correct any other errors; and
 Creating the risk of disparate treatment of “right location, wrong precinct” provisional ballot voters from county to county, based on whether a Board chooses to combine its poll books at multiple-precinct locations.
(Second Supplemental Compl., Doc. 453 at 31-41.) Plaintiffs further contend that the challenged laws violate Section 2 of the VRA because they will have a disproportionate impact on AfricanAmerican and Latino voters, and that the Ohio legislature in fact intended as much. (Id. at 3640.) Finally, Plaintiffs claim that SBs 205 and 216 violate additional provisions of the VRA that prohibit disenfranchisement of voters due to literacy tests and immaterial errors or omissions in an application to vote.
The Court presided over a twelve-day bench trial that concluded on March 31, 2016, and now issues the following findings of fact and conclusions of law.
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III. FINDINGS OF FACT A. Parties 1. Plaintiffs
At trial, the Court had an opportunity to hear the testimony and observe the demeanors of NEOCH Executive Director Brian Davis, CCH Board Member Donald Strasser, and ODP General Counsel and Director of Operations Zachary West. The Court has no reservations as to the competency or credibility of any of those witnesses.
a. NEOCH NEOCH is a Cleveland-based 501(c)(3) non-profit charitable organization comprising service providers, homeless persons, and volunteers. (Test. of Brian Davis, Tr., Vol. 4 at 16162.) Founded in the 1980s, NEOCH advocates on behalf of the Cleveland homeless, airing and addressing issues related to their lack of housing, employment, and health care. (Id. at 162.) One of NEOCH’s primary purposes is to protect the civil rights of homeless persons, including their right to vote. (Id. at 162-63.) Indeed, it was a picture of nuns registering homeless persons to vote that first piqued Brian Davis’s interest in the organization. (Id. at 163.) According to Davis, ensuring that homeless persons exercise their right to vote is crucial to NEOCH’s advocacy because elected officials are more attentive to the will of electors than of non-voters. (Id.) As he put it, “[E]lected officials don’t often think that homeless people participate in the voting process, and so if you can sit down with a mayor or city council member and say . . . we have X number of voters who are here with us, that says a lot more than just people who are coming with issues with government.” (Id.) To become a member of NEOCH, individuals sign a form and return it to the organization. (Id. at 184.) NEOCH annually sends a letter asking members to renew their
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memberships for the upcoming year. (Id.) Individuals maintain membership in the organization by filling out and returning those forms, which are also available at membership meetings and during other face-to-face meetings with individuals. (Id.) NEOCH’s membership includes about 400 homeless persons, about 60 of whom are currently homeless. (Id. at 185.) The small number of currently homeless members compared to total membership is due to the ephemerality of homelessness—the average duration of any bout of homelessness in Cuyahoga County is 22 days for an individual, and 52 to 54 days for a family. (Id.) Approximately 70% of NEOCH’s in-person homeless applicants are African-American. (Id. at 186.) This mirrors statistics for the homeless population in Cuyahoga County, which is double the percentage of African-Americans residents in Cuyahoga County. (Id. at 186, 232.)
NEOCH staff members meet daily with homeless individuals to address their problems and also conduct monthly membership meetings to discuss important issues for the homeless community. (Davis Tr., Vol. 7 at 58.) The Court finds that NEOCH has a close relationship with its members. (See id.)
NEOCH has succeeded in improving the conditions of homeless persons, including getting the Cleveland Police to agree not to harass persons for innocent behavior on public streets under the terms of a federal consent decree, one of only a few in the United States. (Davis Tr., Vol. 4 at 164.) Davis attributes such success to the votes cast by NEOCH’s homeless constituents. (Id.) Were NEOCH’s members unable to vote, their bargaining power vis-à-vis elected officials would be diminished, which would in turn diminish NEOCH’s effectiveness at advocating on their behalf, frustrating its mission and exposing an already vulnerable population to further governmental neglect. (Id. at 165.) The homeless constituents of NEOCH and CCH face challenges that hinder them from asserting their own rights, including mental illness and/or
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addiction, difficulty maintaining a regular address or phone number, limited access to transportation, and illiteracy or lack of education. (Davis Tr., Vol. 7 at 59-60.) They also find it challenging to gain entrance to courtrooms and public buildings due to lack of ID, and many homeless people have a negative relationship with the judicial system or hesitate to get involved in litigation to assert their rights because they are more focused on meeting their immediate needs. (Id.)
Promoting voting among its members, and among the homeless county-wide, is central to NEOCH’s mission, and NEOCH’s executive director, staff, and volunteers expend substantial resources on voting activities in even-numbered years. Davis spends as much as 80 hours per week around the voting registration deadline on such activities, and one part-time NEOCH staff person devotes 20 hours per week to early voting turnout efforts. (Davis Tr., Vol. 4 at 211, 221.) In presidential election years, between 100 and 125 persons volunteer their time to help NEOCH’s homeless members vote. (Id. at 227.) In the month before Election Day, almost all of Davis’ official activities are voting-related. (Id. at 217.) In the month prior to that, about 60-70 percent of Davis’ time is spent devoted to getting as many homeless people as possible registered to vote and then ensuring they cast a ballot that is counted. (Id.) NEOCH’s members are keen for the help—all but one of its homeless members that have filled out NEOCH membership forms have said they plan to vote in the 2016 general election. (Id. at 187-88, 192-93.) Of the NEOCH homeless members who have voted in primary elections, about eight vote in the Democratic primary for each one who votes in the Republican primary. (Id. at 198.)
If the challenged laws are not enjoined, NEOCH will have to divert significant resources to educate and assist voters to ensure that they cast a valid, counted ballot. This is because NEOCH will have to change its strategy for the 2016 election to focus on early in-person voting
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as opposed to vote-by-mail. (Id. at 203-04, 212-13, 220-21.) In the 2014 election, NEOCH encouraged both options, and handed out blank absentee ballot applications to members. (Id. at 203.) NEOCH later found that its members had difficulty filling out the Cuyahoga County absentee ballot identification envelope. (Id.) In Davis’s experience, eight to ten percent of those living in shelters across Cuyahoga County are absolutely illiterate, and the majority read at only a fourth-grade level. (Id. at 195.) Davis feared that the complexity of the form, along with SB 205’s provisions demanding that voters fill out the required fields completely and accurately, discussed in Section III(C)(1), infra, increased the risk of NEOCH’s members being disenfranchised. (Id. at 195, 202.) In his twenty years working with the homeless, Davis has noticed that homeless persons have pervasive and profound problems filling out the forms. (Id. at 195.) Not being able to read or fill out forms correctly is embarrassing and humiliating for many of NEOCH’s members, and they hesitate to ask for help. (Id.) NEOCH’s practice with other government forms, such as those relating to Social Security disability and Medicaid benefits, is to read the forms aloud and fill them out on the homeless person’s behalf as a matter of course. (Id. at 194-95.)
In response to concerns about the complexity of the new voting forms, NEOCH will no longer provide blank cards to its members to vote by mail, but will instead focus its get-out-thevote campaign on driving people to the polls to vote, which will divert drivers and vehicles from doing other work on behalf of the organization and its members, burdening NEOCH staff members and volunteers appreciably more than if it handed out blank forms. (Id. at 206-07, 224.) The push to drive voters to the polls also will require more financial resources than a voteby-mail effort. (Id. at 224.)
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b. CCH CCH is a Columbus-based 501(c)(3) non-profit charitable organization dedicated to advocacy and education to improve the lives of homeless people in Columbus. (Test. of Donald Strasser, Tr., Vol. 7 at 14.) It is a coalition of service providers, current and former homeless persons, and concerned citizens. (Id. at 16-17.) Its mission is: to work together to educate the central Ohio community about the devastating effects of homelessness upon individuals and families; to advocate on behalf of homeless persons and organizations that serve them; and to empower homeless persons to achieve greater self-sufficiency. (CCH website, P-1566.) CCH’s organizing efforts include holding monthly meetings in which CCH encourages people both to register and vote, and directs them to resources that can help with obtaining the ID required to vote. (Pl.’s Resp. to Interrog., P-1559 at 5.) CCH also assists members one-on-one by accompanying them to appointments to access social services. (Strasser Tr., Vol. 7 at 16.) Sixty percent of homeless people in shelters in Columbus, the population for which CCH advocates, are African-American. (Id. at 12.) Both homeless individuals and homeless shelters are members of CCH, and the shelter members also have daily interaction with homeless people and provide direct services to them. (Id. at 18.) CCH has a close relationship with its members. (Id. at 16-18.) Its members often have difficulty dealing with large-scale bureaucracies or courts, and they face other challenges in asserting their rights such as mental health and chemical dependency problems, low literacy rates, inadequate work history, and residential instability. (Id. at 19.) CCH plans to increase its voter-education efforts by explaining new voting requirements to homeless persons at meetings, publishing articles about the requirements, and training its constituent homeless members to educate other homeless persons about the voting requirements.
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(P-1559 at 5.) CCH plans to spend its resources educating voters in 2016 about the new requirements in the challenged laws. (Strasser Tr., Vol. 7 at 32-33.) CCH is a small concern— with one full-time staff person and one part-time staff person, and a 2012 account balance of $77,624.30—and any time or money spent on educating the homeless about new voting requirements will pose an immediate and stark burden on the organization. (P-1559 at 4-5; 2012 Annual Report, P-1565.)
c. ODP ODP is a political party comprising 1.2 million members dedicated to, among other goals, advancing the interests of the Democratic Party. (Test. of Zachary West, Tr., Vol. 2 at 228); Ohio Democratic Party: Constitution and Bylaws, 2014, https://ohiodems.org/wpcontent/uploads/2015/08/2014odpconstitution.pdf (last visited June 2, 2016).1 Like NEOCH and CCH, ODP spends significant resources on voting-related activity, including voter registration, education, and protection efforts, and will continue to do so through the 2016 general election and beyond. (West Tr., Vol. 2 at 222-25.) This includes sending out a Voter Bill of Rights in presidential election years, which contains information such as polling locations and hours and the types of ID voters need to cast a valid ballot. (Id. at 223-24.) ODP conducts more voter outreach and education during presidential election years because those are the elections that have the highest turnout and the most new registrants. (Id. at 224.) ODP conducts activities aimed at promoting vote-by-mail and early in-person voting as part of its Get Out the Vote (“GOTV”) strategy. (Id. at 228, 234.) Changes to election laws between 2012 and 2016 will require ODP to devote more resources to educate voters about the new procedural requirements. (Id. at 234-35.) In some cases, ODP will have to re-educate voters to whom it already has
1 The the Court takes judicial notice of this non-controversial, publicly available foundational fact. See United States v. Harris, 331 F.2d 600, 601 (6th Cir. 1964) (per curiam).
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conducted outreach to inform them that they must comply with the five-field requirement. (Id. at 235.) This will be especially burdensome to ODP because, as a result of a 2010 action by the Federal Elections Commission (“FEC”), GOTV activity must be paid for with “hard” money, which is subject to stricter contribution limits and thus more challenging for the party to raise than “soft” money. (Id. at 234.)
2. Defendant The Secretary functions as Ohio’s chief election officer. Ohio Rev. Code § 3501.04. His responsibilities include, among others, appointing members of the Boards, issuing directives and advisories to Board members regarding election administration and enforcing them, and prescribing the form of registration cards, ballots, cards of instructions, and poll books. Id. § 3501.05.
B. Voting in Ohio To cast a legitimate vote in Ohio, an elector must be at least eighteen years old and a citizen of the United States. Ohio Const., Art. V, § 1. Electors also must have resided in Ohio and the requisite county, township, or ward, and have been registered for at least 30 days prior to the election. Id. Ohio voters can cast a legitimate ballot in the following three ways: (1) inperson on Election Day; (2) no-excuse, mail-in early absentee voting; and (3) no-excuse, inperson early absentee voting. (Test. of Dr. M.V. “Trey” Hood, III, Tr., Vol. 10 at 18-19); Ohio Rev. Code §§ 3505.181-82, 3509.01, 3509.06(D)(3)(b). Voters may cast a provisional ballot either on Election Day or before. (Test. of Matthew Damschroder, Tr., Vol. 11 at 120.)
1. Election-Day Voting In-person, Election Day voting is the most common form of voting in Ohio, accounting for approximately two-thirds of all votes cast in any given election. (Id.)
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Election-Day voters go to their assigned polling place on Election Day, check in with a poll worker, and announce their name and address. See Ohio Rev. Code § 3505.18(A)(1). A voter must provide proof of identity in the form of a current and valid photo ID, a military ID, or a copy of a current utility bill, bank statement, government check, paycheck, or other government document, other than a notice of voter registration mailed by a Board. Id. If the elector cannot provide proof of identity, she may cast a provisional ballot. Id. § 3505.18(A)(2).
2. Absentee Voting Beginning in 2006, all registered voters have had the option to vote absentee instead of on Election Day, without excuse, either in person or by mail. (Damschroder Tr., Vol. 11 at 12728.) To receive an absentee ballot, a voter must furnish to the Board of the county in which the voter will vote a written application including the voter’s name, signature, address, date of birth, and one of these three items: (1) the voter’s driver’s license number; (2) the voter’s SSN-4; or (3) a copy of the voter’s current and valid photo ID, military ID, utility bill, bank statement, government check, paycheck, or other government document besides a notice of voter registration mailed by a Board that shows the name and address of the elector. See Ohio Rev. Code § 3509.03(A)-(E). If a Board director receives an absentee ballot application that does not contain the required information, the director “promptly shall notify the applicant of the additional information required to be provided by the applicant to complete that application.” Id. § 3509.04(A). If the application meets the requirements, the Board “shall deliver to the applicant in person or mail directly to the applicant” the absentee ballot. Id. § 3509.04(B). Voters may then submit their absentee vote either in-person or by mail. (Test. of Anthony Perlatti, Tr., Vol. 2 at 147; Test. of Sherry Poland, Tr., Vol. 10 at 207-08.)
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a. In-Person Absentee Voting Beginning four weeks before an election, any Ohio voter may vote early and in-person at their county Board during designated days and hours. See Ohio Rev. Code §§ 3509.01(B)(3), 3501.10(C). For the 2016 general election, Ohio will offer 23 days of early in-person voting starting on October 12.2 (2016 General Election Early Voting Calendar, D-32.) The requirement to fill out the absentee ballot application is the same for in-person absentee voting as mail-in absentee voting. See Ohio Rev. Code § 3509.03.
b. Mail-in Absentee Voting Ohio also offers all voters a no-excuse mail-in absentee option. See id. § 3509.05. Since 2012, the Secretary has mailed absentee ballot applications statewide for even-year general elections both to every registered, active voter and to every registered voter who cast a ballot in one of the past two federal general elections, regardless of voter status. (Dir. 2014-15, D-35; Damschroder Tr., Vol. 11 at 129.) Before mailing the form back to the Board, the voter must sign and include in the envelope an affirmation declaring that the voter is eligible to vote and, if the voter did not provide a driver’s license number or SSN-4 on the affirmation, the voter must include in the application a copy of the voter’s: (1) current and valid photo ID; (2) military ID; or (3) current utility bill, bank statement, government check, paycheck, or other government document, besides a notice of voter registration mailed by a Board, that shows the name and address of the elector. See Ohio Rev. Code § 3509.05(A).
2 Since the conclusion of the trial, another court in this district has reinstated an additional week of early voting, known as “Golden Week,” on the grounds that the elimination of that week of voting violates the VRA and the Fourteenth Amendment. See Ohio Organizing Collaborative v. Husted, No. 2:15-cv-1802, slip op. at 102 (S.D. Ohio May 24, 2016) (Watson, J.). Therefore, more than 23 days will now be offered.
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If the Board finds an error in one of the five fields on a voter’s absentee ballot identification envelope, the Board mails a Form 11-S to the voter specifying which of the five fields contained an error and informing the voter that her ballot will not be counted unless: (1) she returns the Form 11-S to the Board by the seventh day after the election; or (2) mails it by the seventh day after the election and it is received by the Board by the tenth day after the election. (Form 11-S, D-48; Damschroder Tr., Vol. 11 at 160.)
3. Provisional Voting Sometimes, if the Board cannot confirm eligibility, a voter is not able to cast a regular ballot either early in-person or on Election Day. See Ohio Revised Code § 3505.181(A)(1). Those voters must instead complete a provisional ballot. As the name suggests, provisional ballots allow voters to cast ballots provisionally, subject to later verification. (Damschroder Tr., Vol. 11 at 124-25.) The vast majority of provisional ballots are cast at the polling place on Election Day. (Poland Tr., Vol. 10 at 187; Damschroder Tr., Vol. 11 at 126.) Provisional ballots are available to those voters: (1) who declare that they are eligible to vote and registered in the precinct in which they wish to vote but whose names do not appear on the list of eligible voters; (2) who are unable to provide the requisite forms of ID pursuant to Ohio Revised Code § 3505.18(A)(1); (3) whose names are marked as having requested an absentee, uniformed services, or overseas ballot for that same election but appear in person to vote; (4) whose notification of registration has been returned undelivered to the Board and whose address the Board was unable to verify as correct; (5) whose eligibility has been successfully challenged by a poll worker at the polling place pursuant to Ohio Revised Code §§ 3505.20 or 3513.20, or whose application or challenge hearing will be held after Election Day pursuant to Ohio Revised Code § 3503.24(D)(1); (6) whose name has changed and remains within the
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precinct without providing proof of the name change, or who has moved from one precinct to another within a county, or moved from one county to another within Ohio; and (7) whose signature is not the same as the signature of the person who signed the registration forms. Ohio Rev. Code § 3505.181(A)(1)-(7). Voters who cast provisional ballots because they do not have a valid ID may provide either a driver’s license number or SSN-4 or appear at the Board of Elections within seven days of Election Day to provide an ID or their driver’s license number or SSN-4. Id. § 3505.18(A)(2)(a)-(b).
C. The Challenged Laws 1. SB 205
SB 205 changed Ohio law regarding absentee voting procedures. At issue here are the amendments as reflected in §§ 3509.03-04 and 3509.06-07 of the Revised Code. Plaintiffs challenge the portions of §§ 3509.03 and 3509.04 that explicitly prohibit any election official from filling out any portion of the required forms unless the voter declares to an election official that she cannot fill the form out due to blindness, disability, or illiteracy. See Ohio Rev. Code § 3505.24.
Section 3509.06 now imposes a completeness requirement for absentee ballot ID envelopes, mandating that an ID envelope is considered incomplete if the voter fails to fill out the five fields of required information—name, residence address, date of birth, signature, and some form of ID, which includes all types of ID required for the absentee ballot application form—or the information does not conform to the information contained in the SVR. See id. § 3509.06(D)(3)(a)-(b). In such event:
the election officials shall mail a written notice to the voter, informing the voter of the nature of the defect. The notice shall inform the voter that in order for the voter’s ballot to be counted, the voter must provide the necessary information to the board of elections in writing and on a form prescribed by the secretary of state
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not later than the seventh day after the day of the election. The voter may deliver the form to the office of the board in person or by mail. If the voter provides the necessary information to the board of elections not later than the seventh day after the day of the election and the ballot is not successfully challenged on another basis, the voter’s ballot shall be counted in accordance with this section. Id. § 3509.06(D)(3)(b). Before SB 205 was enacted, the absentee voter ID envelope requested the information contained in the five fields (name, address, date of birth, identification and signature), but did not require it, meaning that Boards had the discretion to count the ballot even if some of the information requested in the five fields was missing or incorrect.3 (Test. of Timothy Burke, Tr., Vol. 2 at 192.) Section 3509.07 provides that absentee voters must complete the five fields in the manner described in § 3509.06(D)(3)(a), or the election officials “shall not” accept or count the ballot unless the would-be voter provides the missing required information no later than the seventh day after the election. See Ohio Rev. Code § 3509.07(A). Before SB 205, voters had ten days after the election to cure any deficiencies, pursuant to a directive issued by Secretary Brunner. (Damschroder Tr., Vol. 11 at 158; D-34, Directive 2010-68 at 6.)
2. SB 216 The challenged portions of SB 216 concern provisional voting procedures, and are reflected in §§ 3501.22, and 3505.181-83 of the Revised Code.
3 Ohio law makes an exception for a voter who fills in an incorrect birth date provided that the voter has filled in the field and: (1) the voter has filled in the correct month and day; (2) the SVR lists the voter’s birthday as January 1, 1800; or (3) by a vote of at least three members the Board finds that the voter has met the requirements of the other four fields. See Ohio Rev. Code § 3509.06(D)(3)(a)(iii)(III).
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Section 3501.22(A)(2)(b) gives Boards, by a vote of three of four members, the option to combine the poll books in multi-precinct voting locations, creating a single poll book for each location.4
Under § 3505.181(B)(2), a provisional voter must complete and execute the provisional ballot affirmation, which requires the following fields: printed name, date of birth, current address, signature, and proof of identity, which may include SSN-4, Ohio driver’s license number, a form of unexpired government ID containing the voter’s name and current address (or former address if an Ohio driver’s license or ID), a military ID card, current utility bill, bank statement, government check, paycheck, or other government document that contains the voter’s name and address, other than a notice of voter registration mailed by a Board. See Ohio Rev. Code § 3505.182(A)-(D). SB 216 added two new fields—date of birth5 and current address— that voters must fill in on a provisional ballot affirmation form. Id. § 3505.183(B)(1)(a); Damschroder Tr., Vol. 11 at 133. Before SB 216 amended the Code, under § 3505.183, voters were required to provide only their names, IDs, and signatures. (Senate Bill 216, P-1189 at 22.) SB 216 also required voters to print, rather than simply include, their names on the provisional ballot envelope. (Compare id. with Ohio Rev. Code § 3505.183.) Finally, unlike SB 205, SB 216 did not create a new completeness requirement for the five fields, because § 3505.182(F) already contained such a requirement. (See P-1189 at 18.)
4 Since the Second Supplemental Complaint was filed, the Secretary has issued a directive requiring all county boards to combine poll books in multi-precinct voting locations into a single poll book for each location. (D-2, Directive 2015-24 at 2-80-81; Damschroder Tr., Vol. 11 at 150.) The Court finds, therefore, that Plaintiffs’ challenge to the portion of SB 216 that gives Boards the option, but does not require, the combining of poll books is moot. 5 Like for absentee ballots, Ohio law makes an exception for an incorrect birth year, a birth year in the SVR of January 1, 1800, or if by a vote of at least three members the Board finds that the voter has provided all other required information. Ohio Rev. Code § 3505.183(B)(3)(e).
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Section 3505.181(F) dictates that, like with the challenged portions of the Code as amended by SB 205, persons filling out provisional ballots may receive help from poll workers, but only if the voter “[d]eclares to the . . . election official” that the voter “is unable to mark the . . . ballot by reason of blindness, disability, or illiteracy.” Ohio Rev. Code § 3505.24(b).
SB 216 reduced the period to cure incomplete or incorrect provisional ballots from ten to seven days after the election. Id. § 3505.181(B)(7). (Damschroder Tr., Vol. 11 at 133-34; P1189 at 14.) Provisional voters who did not provide a driver’s license number, SSN-4, or valid ID on Election Day may go to the Board during this period to cure their ballots, but voters with other errors on the affirmation forms may not. Ohio Rev. Code § 3505.181(B)(7). The Board is not required to notify a provisional voter before the end of the cure period if the information on the provisional ballot envelope is incomplete or defective. See id. § 3505.181.
D. The Lead-up to SB 205 and SB 216 The only members of the General Assembly from whom the Court heard testimony at trial were Representative Kathleen Clyde and former Senator Nina Turner, both Democrats who voted against the bills. The Court found both witnesses credible as to their recollection of the events surrounding passage of the challenged laws. Representative Clyde, who has represented the 75th district in the Ohio House of Representatives since 2011, has an extensive background as a lawyer and advocate on voting rights and election law issues. (Test. of Kathleen Clyde, Tr., Vol. 1 at 26.) Her work experience includes internships at the Brennan Center for Justice and Election Law at Moritz, an election law institute at the Ohio State University Moritz College of Law, and Secretary Brunner’s office, as well as employment as the Democratic Director of the Early Vote Center in Franklin County for Barack Obama’s 2008 presidential election campaign and as Deputy Legal Counsel to the Ohio House Democrats. (Id. at 28-29, 31.) She has also
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worked with homeless populations at the Community Shelter Board in Columbus, Ohio and is thus familiar with issues homeless people face in voting. (Id. at 26-27.)
Former Senator Turner, who represented the 25th district in the Ohio Senate from 20082015, was born and raised in Cleveland, Ohio, where she currently is a tenured professor of African-American and United States history at Cuyahoga Community College. (Test. of Nina Turner, Tr., Vol. 6 at 88-89, 110, 118.) Senator Turner’s district was primarily AfricanAmerican, and throughout her career, including her time in the Senate and her employment with different elected officials, she has worked on issues affecting African-Americans, particularly with regard to socioeconomic disparities and the educational achievement gap between AfricanAmerican and white students. (Id. at 99-101.)
Following the 2010 election, control of the Ohio House of Representatives switched from the Democratic to the Republican Party. (Clyde Tr., Vol. 1 at 33.) “Rather quickly” after that change in leadership, House Republicans introduced two bills: (1) a bill to require all Ohioans to show a photo ID when voting; and (2) House Bill 194 (“HB 194”), an expansive election-law bill that included “a number of restrictions on voting, including the restrictions that we see in [SBs 205 and 216].” (Id. at 33.) Representative Clyde testified that the debate over HB 194 was “very partisan and hostile” and “very quick.” (Id. at 39.) HB 194 was ready for the Governor’s signature within two months of its introduction, which Representative Clyde testified marks a significantly shorter time period than usual for the passage of legislation of such complexity. (Id. at 50.)
In August 2012, in an unprecedented move, the Ohio legislature voted to repeal HB 194 after hundreds of thousands of Ohioans signed petitions to place it on the ballot for a statewide referendum in November 2012. (Id. at 55, 57.)
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Sixteen other bills proposing voting restrictions were introduced in the 2013-2014 General Assembly, eight of which passed. (Id. at 59.) One bill was passed to shorten the window to gather signatures for referenda, which made it more difficult for citizens to put a referendum on the ballot. (Id. at 60.) Another bill was passed making it easier to purge voters from the registration rolls. (Id. at 60-61.) Senate Bill 238, which eliminated the first week of the early voting period, also was enacted.6 (Id. at 62.) Other bills were introduced, but not passed, which would have limited voting in the following ways: shortening the early voting period to 14 days; eliminating early voting hours; limiting the mailing of absentee ballot applications to voters and preventing the paying of return postage on absentee ballot envelopes; instituting a photo-ID requirement; and requiring state universities to provide in-state tuition rates to students if they provided those students with ID that they needed to vote. (Id. at 64.)
SB 205 was considered by the Policy and Legislative Oversight Committee for approximately one or two months, and it passed the House in a total of four or five months. (Id. at 70, 80.) Representative Clyde and Senator Turner both testified that proponents of the challenged laws defended them on the ground that they would create a more uniform voting process and that voters needed to take responsibility to fill out information without the assistance of poll workers. (Id. at 69, 71; Turner Tr. Vol. 6 at 162.) None of the proponents cited fraud as a justification. (Id.) Representative Clyde also stated that during the floor debate over SB 205, Representative Mike Dovilla, the floor manager of the bill and Chairman of the Committee, argued that “Government doesn’t need to spoon-feed voting materials to voters.” (Clyde Tr., Vol. 1 at 69.) She further testified that, in contrast to most proposed legislation, there was no
6 As noted above in Section III(B)(2)(a), another court in this district subsequently found SB 238’s elimination of the first week of the early voting period to be unconstitutional and in violation of Section 2 of the Voting Rights Act. See OOC, slip op. at 102. Accordingly, that court enjoined SB 238’s enforcement.
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data or testimony offered about the need for the measures proposed in SB 205. (Id. at 72.) Clyde and other opponents of the bill raised concerns about the impact of the proposed changes on voters with disabilities or low literacy levels. (Id. at 73-74.) Clyde also testified that it was highly unusual that no proponents of the bill testified in its favor in front of the legislature, although on cross-examination she conceded that at least one proponent did testify. (Id. at 81, 114-15.) Several interest groups spoke against the proposed changes in front of the committee. (Id. at 81-82.) Clyde and Turner both recalled some of their Democratic colleagues arguing that the bill would have a “negative impact . . . on the African-American community.” (Turner Tr., Vol. 6 at 164; Clyde Tr., Vol. 1 at 101.) During committee debate, Representative Matt Huffman, speaking in favor of SB 205, asked “should we really be making it easier for those people who take the bus after church on Sunday to vote,” which Clyde testified she understood to be referring to the Souls to the Polls initiative for African-American voters to vote early in person. (Id. at 82-83.)
During the debate over SB 216, its supporters in the legislature testified that the intent behind the bill was to comply with the court order in the SEIU case. (Id. at 96.) Turner also stated that Senator Seitz, the bill’s sponsor, characterized the bill as “streamlining the process for elections officials.” (Turner Tr., Vol. 6 at 166.) Two Democratic amendments were tabled on party-line votes and not included in the final bill. (Clyde Tr., Vol. 1 at 105.) The first amendment would have counted provisional ballots cast at the wrong polling place when there was evidence of poll-worker error. (Id. at 103.) The second would have counted provisional ballots as long as there was enough information to identify the voter. (Id. at 103-04.)
With respect to both SB 205 and SB 216, Democratic legislators spoke about their concerns that the provisional and absentee ballots of African-American voters would be thrown
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out disproportionately. (Id. at 102.) Clyde and other House Democrats also spoke out about their concerns that voters who made minor errors or had low literacy would be adversely affected by the bill. (Id. at 99-101.) Both chambers passed an amendment, which eventually made it into the final version of SB 216, that allowed ballots to be counted in some circumstances if the voter put the wrong year for his or her birthdate. (Id. at 106; Test. of Kenneth Terry, Tr., Vol. 11 at 51; Ohio Rev. Code § 3509.06(D)(3)(a)(iii)(III).)
The Court also heard testimony from two members of the Ohio Association of Election Officials (“OAEO”), Kenneth Terry and Timothy Ward. Terry, a Democrat, is Director of the Allen County Board of Elections and was a Legislative Committee Member and Democratic CoChair of the OAEO’s Legislative Committee. (Terry Tr., Vol. 11 at 18-19.) Ward, a Republican, is currently Director of the Madison County Board of Elections and the first Vice President of the OAEO. (Test. of Timothy Ward, Vol. 7 at 189-90.) He was the Republican cochair of the OAEO’s Legislative Committee, which reviews draft legislation and makes recommendations to the General Assembly. (Id. at 190-91.) The Court found both witnesses credible regarding the operations and actions of the OAEO.
The OAEO is an organization comprising directors, deputy directors, board members, and staff from Boards of each of Ohio’s 88 counties. (Terry Tr., Vol. 11, Doc. 665 at 19.) The OAEO is bipartisan, with equal representation from the Democratic and Republican Parties. (Id. at 20; Ward Tr., Vol. 7 at 191.) It seeks to uphold and promote professionalism among elections administrators in Ohio. (Id.) Both Terry and Ward testified that they served on a 2013 OAEO task force to address how to improve Ohio’s absentee balloting system. (Id. at 193; Terry Tr., Vol. 11 at 23-24.)
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Ultimately, many of the OAEO’s suggestions were rejected by the legislature. The OAEO, for example, recommended that early in-person voters be treated identically to Election Day voters, obviating the requirement to fill out an identification envelope. (Id. at 95; D-62 at 4.) Moreover, although the OAEO supported the five-field requirements in the challenged laws (Ward Tr., Vol. 7 at 196), Terry testified that they did not discuss whether the ballots would be thrown out if the five fields were not complete. (Terry Tr., Vol. 11 at 96.) As such, the Court finds that the OAEO’s position on the legislation sheds little light on the intent of the General Assembly since the General Assembly only adopted the OAEO’s recommendations in part.
E. The Implementation of SB 205 and SB 216 1. Individual Voter Testimony
Plaintiffs introduced testimony from individual voters who were disenfranchised for failing to follow the challenged laws’ new information requirements. Kenneth Boggs, for example, voted by absentee ballot in the 2014 election in Franklin County. (Doc. 672-2.) His ballot was rejected because, it being October when he filled out the form, he mistakenly wrote “10” instead of “6” in the field for his birth month. (Id.) He later received notice that his vote was thrown out, but when he was notified it was too late to correct the error, leaving him “furious” that his vote was thrown out because he made “a very minor and obvious mistake.” (Id.)
Elizabeth Coffman and her husband voted by provisional ballot in Franklin County in the 2015 general election. (Doc 672-3.) She mistakenly wrote her current address in the “former address” field. (Id.) She and her husband received notice from the Board of Elections asking them to verify their new address, which they filled out and returned. Ms. Coffman’s ballot was
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nonetheless rejected, which she did not know until contacted as a result of this litigation. (Id.) She is “angry” that she was disenfranchised. (Id.)
Cheryl and Hugh Davis voted by absentee ballot in Franklin County in the 2014 general election. (Docs. 672-4, 672-5.) Mr. Davis filled out their ID envelopes, accidentally swapping their information. (Id.) Mr. Davis crossed out the information and corrected the mistakes as to all fields except their dates of birth. (Id.) Both of their ballots were rejected without notice, for what Mr. Davis characterized as a “mistake . . . clear to anyone who looked at [their] ballot forms and ID envelopes.” (Doc. 672-5.)
Keith Dehmann is a Fairfield County resident and active serviceman for the United States Air National Guard Reserves. (Doc. 672-6.) He voted by absentee ballot in the 2014 general election. (Id.) After mailing his ballot, he received notice of an error on its ID envelope for failing to fill in the date of birth field. (Id.) He received a supplemental form from the Fairfield Board of Elections to correct the mistake, which he filled out and returned soon after receiving it. (Id.) His ballot was ultimately rejected, which he did not know until contacted as a result of this litigation, leaving him “frustrated and disappointed” that his ballot was not counted. It made him question “whether [he] should continue doing absentee voting in the future.” (Id.)
Katherine Galko is a Summit County resident who resides in an assisted-living facility. (Doc. 672-7.) She is 92 years old, and has been voting since she was 18. (Id.) She voted in her assisted-living facility for the 2014 general election with assistance from someone who read the ballot to her. (Id.) The person who helped her fill out the form mistakenly wrote the date of the election instead of her Social Security number. (Id.) Her ballot was rejected. (Id.)
Roland Gilbert is a Franklin County resident. (Doc. 672-8.) A lawyer by training, he is 86 years old and legally blind. (Id.) He voted by absentee ballot in the 2014 general election.
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(Id.) Although he used a closed-circuit lighted machine that magnifies print to help him see, he mistakenly wrote the current date in the date-of-birth field. (Id.) His ballot was rejected, which he did not know until contacted as a result of this litigation. He does not believe his vote should have been rejected due to an “obvious clerical error.” (Id.)
Kadar Hiir became a United States citizen in 2012. (Doc. 672-9.) He voted for the first time in the 2014 general election, by provisional ballot. (Id.) He mistakenly transposed the month and day of his birth on the provisional ballot affirmation form, which is customary both in Somalia, where he grew up, and in most parts of the world besides the United States. (Id.) His ballot was rejected, and he received no notice either of his mistake or of his ballot’s rejection. (Id.)
Elisabeth Hire is a Franklin county resident who voted in person in the 2014 general election. (Doc. 672-10.) She was told she had to vote provisionally, but she mistakenly wrote one digit of her Social Security number incorrectly. (Id.) She never received any notice about the error. (Id.)
Gunther and Linda Lahm voted by absentee ballot in Franklin County in the 2014 general election. (Docs. 672-13, 14.) Mrs. Lahm filled out their ID envelopes but mistakenly mixed them up. She later fixed all of the mistakes except for the date-of-birth fields. (Id.) Their ballots were rejected, leaving them both “very angry.” (Id.) They feel strongly that voting is very important—so strongly that both offered to fly back to Columbus from Florida to testify on the matter. (Id.)
Courtney White, a college student in Toledo, voted by absentee ballot in Delaware County in the 2014 general election. (Doc. 672-18.) She provided her then-current college mailing address in the voting-residence field on the ID envelope. (Id.) She did not interpret
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“voting residence” to mean the residence where she was registered. Her ballot was rejected without notice, and she was unaware of the rejection until contacted as a result of this litigation. (Id.)
2. Aggregate Data and Testimony from Board Officials Plaintiffs have produced many other examples of voters who failed to meet the information requirements of the forms, which indicates that the voters either disregarded or misunderstood what was being asked. (See Pls.’ Proposed Findings of Fact and Conclusions of Law, Doc. 687-2, Table A.) In the 2014 general election, 4,734 of the 49,262 provisional ballots cast statewide were rejected. (Provisional Ballot Report, 2014 General Election, P-19.) Of those, 16 were for failure to print a full name on the provisional envelope, 188 were for failure to provide a current address, 59 were for missing or incorrect birth date, 163 were for failure to sign the provisional ballot envelope, and 173 were for failure to provide ID. (Id.) In the 2015 general election, 12,208 of the 79,414 provisional ballots cast were rejected. (Provisional Ballot Report, 2015 General Election, P-20.) Of those, 22 were for failure to print a full name on the provisional envelope, 310 were for failure to provide a current address, 63 were for missing or incorrect birth date, 263 were for failure to sign the provisional envelope, and 278 were for failure to provide ID. (Id.) As for absentee ballots, in the 2014 general election, 1,018 were rejected for missing or incorrect date of birth, 354 for different address on the identification envelope than on file with the Board, 633 for “voter ID envelope contains insufficient information,” and 199 for lack of proper ID. (P-17.) In 2015, there were 236 rejections for missing or incorrect date of birth, 94 for different address on the identification envelope than on file with the Board, 436 for “voter ID envelope contains insufficient information,” and 77 for lack of proper ID. (P-18.)
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Plaintiffs also submitted thousands of provisional and absentee voter forms from the 2014 and 2015 general elections that they obtained in discovery from twenty-four of the eighty-eight Boards in Ohio. Many of the more than 3,100 rejected ballots that Plaintiffs obtained showed that ballots were rejected for reasons such as wrongly entering a mailing address instead of a registration address, leaving the date-of-birth field blank, leaving the field blank for identification or checking a box next to a form of identification but failing to fill it in, or writing a name in cursive instead of print (for provisional voters). (See Doc. 687-2, Table A)
The Court also heard testimony from Board officials that missing one of the fields is fairly common, and that the required identification envelope has “a lot of wording, a lot of stuff crammed into that space.” (Test. of Zach Manifold, Tr., Vol. 3 at 57.)
As to the cure period, one Board official testified that before the challenged laws went into effect, voters did come in during the eighth, ninth and tenth days of the cure period after the election to cure their provisional and absentee ballots. (Burke, Tr., Vol. 2 at 184.) Moreover, there is evidence that because the Board can receive absentee ballots up until ten days after Election Day, yet the cure period is only seven days, some voters to whom the Board sends a Form 11-S notifying them of their need to cure their ballot will not receive it in time to do so. (See Test. of Eric Morgan, Tr., Vol. 4 at 97; Test. of Jocelyn Bucaro, Vol. 6 at 57-58.)
3. Varied Board Practices Testimony and other evidence from twenty-four Boards of Elections statewide likewise demonstrate that voters have been disenfranchised for failing to conform to the new requirements. Concerning the address field, if, for example, on a provisional or absentee ballot form, the voter’s street number is incorrect,7 Adams, Allen, Carroll, Fayette, Harrison, Meigs,
7 Per the Secretary’s Directive, Ohio counties are now required to pre-print the voter’s name and address on their absentee ballot identification envelopes. (Damschroder Tr., Vol. 11 at 162.)
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Noble, Paulding, and Wyandot Counties accept the ballot, while Butler, Cuyahoga, Franklin, Hamilton, Lawrence, Lorain, Lucas, Miami, Richland, Stark, and Summit Counties reject it. (Pls.’ Proposed Findings of Fact and Conclusions of Law, Table C-3, Doc. 687-4.) If the street name is missing or incorrect, voters will have their ballots accepted in Allen, Carroll, Fayette, Harrison, Meigs, Noble, Paulding, and Wyandot Counties, while they will have their ballots rejected in Cuyahoga, Delaware, Franklin, Hamilton, Lorain, Lucas, Stark and Summit Counties. (Id., Table C-4, Doc. 687-4 at 7-8.) In Butler County, the ballot may be accepted. (Id. at 7.) If voters write an address that is not subsequently confirmed by the Board, voters in Carroll and Wyandot Counties will have their votes counted, while those in Butler, Delaware, Fairfield, Franklin, Hamilton, Lorain, Lucas, Meigs, and Miami Counties will have their votes rejected. (Id., Table C-1, Doc. 687-4.) If the voter writes a commercial rather than a residential address, Boards in Cuyahoga, Delaware, Lawrence, and Montgomery Counties will reject the ballot, while those of Fairfield and Lucas might or might not accept it. (Id., Table C-2, Doc. 687-4.)
As to the date-of-birth-field requirement, if, for example, the voter fills in the wrong month or day but the correct year, her vote is accepted in Adams, Allen, Carroll, Fayette, Meigs, Noble, and Wyandot Counties, while it is rejected in Butler, Delaware, Fairfield, Franklin, Lawrence, Lorain, Miami, and Summit Counties. (Id., Table D-1, Doc 687-5.) The votes might or might not be accepted in Cuyahoga or Harrison Counties. (Id. at 2.) If the voter accidentally provides the current date instead of her date of birth, Harrison, Meigs, Noble, and Wyandot Counties will accept the vote, while Butler, Cuyahoga, Delaware, Lawrence, Lorain, Lucas, Miami, Summit, and Warren Counties will not. (Id., Table D-3.)
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F. Burden on Plaintiffs Plaintiffs seek relief from three portions of the challenged laws: (1) the requirement that voters accurately complete all five fields on the provisional ballot affirmation and absentee identification envelope before their ballots can be counted; (2) prohibitions against poll-worker assistance to voters; and (3) the reduction in the period to cure deficient ballots from ten to seven days after the election.
1. Information Requirements As noted in this Court’s findings of fact in Section (III)(A)(1)(a), supra, the vast majority of NEOCH’s individual homeless members plan to participate in the 2016 general election. (Davis Tr., Vol. 4 at 187-88, 192-93; see also NEOCH’s Second Suppl. Resp. to Interrogs., P1562 at 10.) Many of CCH’s members also plan to vote. (See CCH’s Second Suppl. Resps. to Interrogs., P-1563 at 1.) And as the Court found, many of the organization’s members are illiterate, barely literate, and/or mentally ill. The Court credits CCH’s Strasser’s testimony that “without assistance, a homeless person could [not] complete the entire form” and that due to the complexity and amount of print on the form, “some homeless people would just tear it up and say, you know, to hell with it.” (Strasser Tr., Vol. 7 at 24, 26-27.) Demanding perfect, or near-perfect, adherence to the five-field requirement on ballots imposes a significant burden for homeless voters, who are some of society’s most vulnerable members. See, e.g., OOC, slip op. at 81 (“The new requirements will especially burden voters with . . . low literacy.”). As demonstrated in Section III(E)(2), supra, forms that are, in the words of one Board official, “pretty complex,” with “a lot of wording, a lot of stuff crammed into” them (Manifold Tr., Vol. 3 at 57; see also Strasser Tr., Vol. 7 at 23), can trip up even educated, literate voters.
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2. Prohibition Against Poll-Worker Assistance The prohibition against poll-worker assistance burdens persons with low literacy, particularly if they are embarrassed to reveal their illiteracy due to the stigma it entails. (Strasser Tr., Vol. 7 at 25; see Damschroder Tr., Vol. 12 at 26.) Plaintiffs have introduced ample evidence that many of their members fall into this category, and that illiteracy or low literacy levels are prevalent among the homeless. (Davis Tr., Vol. 4 at 196; Strasser Tr., Vol. 7 at 19.) Homeless voters suffer disproportionately from disabilities, including mental illness, which can also hamper their ability to fill out forms. (Davis Tr., Vol. 4 at 197.) About a third of the homeless individuals with whom NEOCH works have a mental disability, forty-five to fifty percent read at a fourth-grade level, and eight to ten percent are completely illiterate. (Id.) They may write poorly and have handwriting that is difficult to read or, due to mental illness, they struggle to focus on basic tasks without help. (Strasser Tr., Vol. 7 at 25-26.) All of these issues combine to create difficulties for homeless voters in filling out forms without assistance like the absentee ID envelope and the provisional ballot affirmation. (Id. at 29; Davis Tr., Vol. 4 at 195.) Moreover, Davis testified that in his experience with voter mobilization of homeless people in 2014, Board staff members were more hesitant to engage with voters and offer help when it appeared to be necessary, and that homeless voters have been more likely to make mistakes because of the lack of help. (Id. at 202.) Secretary Husted failed to conduct any review or testing of the effect of the provisional ballot affirmation or the absentee identification envelope on voters with low literacy, despite a suggestion to do so from the League of Women Voters. (Damschroder Tr., Vol. 11 at 211-12.)
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In sum, many homeless people face vexing and profound obstacles in exercising the basic right to vote, and the prohibition against poll-worker assistance is likely to exacerbate the problem.
3. Reduction of the Cure Period Reducing the cure period from ten days to seven inconveniences voters who would face logistical difficulties curing their ballots in a shorter time period. For provisional voters, the opportunity to cure their ballots is limited to providing ID that they failed to provide when they voted, but absentee voters have the ability to cure any problems with their identification envelope. (See Bloom Tr., Vol. 1 at 227; Terry Tr. Vol. 11 at 42.) Moreover, some absentee voters may not receive their Form 11-S notifying them of a deficiency with their ballot until close to or after the conclusion of the cure period. (Morgan Tr., Vol. 4 at 102.) NEOCH and CCH represent voters whose means are much more limited than the average voter and who are less likely to be able to access transportation and more likely to suffer from residential instability. They are also less likely to be able to fill out their address correctly. (Davis Tr., Vol. 4 at 97.) Even to read the Form 11-S, which Boards mail when absentee identification envelopes are deficient, may require assistance for some illiterate or semi-literate homeless voters, and logically, a reduced cure period would give them less time to receive a Form 11-S, seek assistance in reading it, and bring it to the Board to cure the ballot.
G. The State’s Justifications for Enacting the Challenged Laws 1. Information Requirements
Defendant argues that standardization is one of the reasons for adding the new five-field requirement in SBs 205 and 216, contending that the new laws created rules that streamline and clarify absentee and provisional voting procedures. As to SB 205, Senator William Coley, the
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bill’s sponsor, testified, “Whether you reside in Lima or Lowell, Batavia or Bedford Heights, Hamilton or Hilliard, you should play by the same rules.” (Sponsor Test., D-98 at 1.)
Defendant also offers administrative convenience as a rationale for the five-field requirement because the two additional fields give Boards more information with which they can identify voters, increasing the likelihood that Boards can identify voters and thus count more votes. (See Ward Tr., Vol. 11 at 52.) This is one of the reasons the bipartisan OAEO was “generally supportive” of these new information requirements. (Interested Party Test. of Aaron Ockerman, Executive Director of OAEO, D-95 at 1).
Defendant’s next rationale, as to SB 216 only, is that the law aims to “reduce the number of provisional ballots cast in the State of Ohio,” that is, to update address and name changes and register more voters who will then be able to cast regular ballots in future elections. (Sponsor Test. of Bill Seitz, D-101 at 1.) In Ohio, most provisional ballots rejections are due to the voter not being registered anywhere in the State, or being registered in the State but not in the precinct where the voter has shown up to vote on Election Day. (See D-13-17; Perlatti Tr., Vol. 2 at 143.) Before the bill’s enactment, the front of the provisional ballot affirmation form, which required only a name, signature, and form of ID, did not include enough information with which Boards could register voters. (Poland Tr., Vol. 10 at 204-05.) The Secretary tried to address this issue by requiring Boards to include a separate registration form on the back of the affirmation form for the voter to fill out, although the testimony of Board officials differed as to whether a significant numbers of voters typically completed the form. (Damschroder Tr., Vol. 11 at 144; Poland Tr., Vol. 10 at 204; Terry Tr., Vol. 11 at 52-53; Test. of Lavera Scott, Tr., Vol. 6 at 24243; Ward Tr., Vol. 7 at 211; Test. of Paula Sauter, Tr., Vol. 7 at 177.) Voters who had moved without updating their registration could cast a valid provisional ballot but, under the prior
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system, where providing the new address was not mandatory, the ballot of a provisional voter who did not provide a current address would be rejected, because it would appear to Boards that the ballot was cast in the wrong precinct. (Dir. 2012-54, D-106; Damschroder Tr., Vol. 11 at 143-45.).
Under the new law, Boards may use the provisional ballot forms with the newly required information fields to register voters who have filled out the fields correctly, in an attempt to decrease the number of provisional voters in future elections. (See, e.g., Poland, Vol. 10 at 20607 (stating that in the 2014 election, 256 voters in Hamilton County had their provisional ballots rejected because they were not registered to vote, but the Board used the affirmations of 233 of them to register them); Ward Tr., Vol. 7 at 212-13 (testifying that in 2015, 156 of 158 previously unregistered voters are now registered thanks to the information provided on their provisional ballot affirmations).)
2. Prohibition Against Poll-Worker Assistance The State’s proffered interests in preventing poll workers from completing voters’ absentee and provisional ballot forms are twofold. First, mistakes seem less likely because in most cases, only the voter knows her personal information. (Damschroder Tr., Vol. 12 at 29-30.) Second, the prohibition should minimize the burden on poll workers, who are temporary workers without significant expertise. (Terry Tr., Vol. 11 at 39-40; Poland Tr., Vol. 10 at 185-86; Test. of Eben McNair, Tr., Vol. 2 at 40.)
3. Reduction in Cure Period The State’s justification for reducing the cure period is to standardize the post-election processes and to provide a “workable stopping point before election officials must begin the official canvass” eleven days after Election Day. (Def.’s Proposed Findings of Fact and
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Conclusions of Law at 36-37 (citing Hood Tr., Vol. 10 at 23).) As for SB 205, the State offered the further justification that the law actually codified a seven-day cure period whereas the previous ten-day cure period was authorized merely by directive. (Id. at 49-50; Damschroder Tr., Vol. 11 at 158.)
H. Disparate Impact At trial, the Court heard testimony from one opinion witness for Plaintiffs and two for Defendant about the impact of SBs 205 and 216 on African-American as compared to white voters.
1. Dr. Jeffrey Timberlake a. Background and Methodology Dr. Jeffrey Timberlake is a tenured Associate Professor of Sociology at the University of Cincinnati. (Test. of Jeffrey Timberlake, Tr., Vol. 5 at 4.) He has published several scholarly works involving original quantitative data analysis using secondary data sources, and the statistical tool on which he has most relied is regression analysis. (Id. at 7-8.) Regression analysis, a broad category of statistical methods, is a common tool to determine a statistical numerical relationship between two sets of variables. (Id. at 20, 22.) Prior to trial, Dr. Timberlake prepared and submitted an expert report for a lawsuit brought by state and local political parties against the Secretary that included similar claims to those in the case sub judice, including allegations that recently enacted Ohio election laws have a disparate impact on African-American voters. (Compl., OOC, Case No. 2:15-cv-01802 (the “OOC case”), Doc. 1 at 56.) Dr. Timberlake grouped all Ohio counties into three categories based on their percentages of minority residents and poverty rates: high minority, low minority/high poverty, and low minority/low poverty. (Timberlake Tr., Vol. 5 at 17; Timberlake
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Rpt., P-1194 at PTF-00163.) In that case, as here, the Secretary put on a rebuttal case to critique Dr. Timberlake’s methodology. (Timberlake Tr., Vol. 5 at 17.) The rebuttal expert faulted Dr. Timberlake for not using a regression analysis, which is more sophisticated than the method he used in the OOC case, and the court in that case ultimately agreed with the rebuttal expert that Dr. Timberlake’s opinion was entitled to little weight for that reason. (OOC, slip op. at 8.) Acknowledging the limitations of the other method, Dr. Timberlake conducted a regression analysis for the report he presented in this trial. (Timberlake Tr., Vol. 5 at 17.)
A regression analysis is useful because Ohio does not record voters’ race, making it impossible to examine differential rates of voting among racial groups directly. (Id. at 20-21.) Dr. Timberlake compared the minority population share of each of Ohio’s counties—the independent variable—to the usage and rejection rates of absentee and provisional balloting in each county—the dependent/explanatory variable—to discern whether SB 205 and SB 216 have had a differential impact on African-American and white voters. (Id. at 20.) The simplest regression analysis here would have been an assessment of county minority population share and the rate of absentee and provisional ballot use and rejection. (Id.) But such an analysis runs into a problem known as ecological inference; in other words, it does not account for other factors that might be driving the disparity. (Id. at 22-23.) By controlling for such factors, the data tell a clearer story regarding county-percent minority and the rates of absentee and provisional ballot use and rejection. (Id. at 23.) Accordingly, Dr. Timberlake controlled for the following variables: (1) whether the county is urban or rural; and (2) three characteristics of the county white population: (i) its median age; (ii) its median income; and (iii) its percentage with a college degree. (Id.) Dr. Timberlake controlled for these characteristics of the white population because differences among whites across different counties, rather than between whites and minorities
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within one county, could have explained the different results. (Id. at 28.) He explained that he controlled for these four factors because research in the field reveals that age, income, and education are “strongly predictive of all different kinds of voting.” (Id.)
b. Conclusions Regarding Disparate Impact In the OOC case, Dr. Timberlake concluded that minority voters used provisional and absentee balloting at higher rates and had their ballots rejected at higher rates than whites over each of the several years for which he had data. (Id. at 33.) After controlling for the additional demographic factors in this case, Dr. Timberlake’s regression analysis led him to soften somewhat, but not contradict, his finding of disparate impact compared with his findings in the OOC case. (Id. at 34.) Most notably, he no longer concluded that minorities used absentee balloting at higher rates than whites. (Id.) Dr. Timberlake’s overall findings here were as follows: [T]here is very little evidence that minority voters used absentee balloting at higher rates than whites do. There is very strong evidence that minorities use provisional balloting at higher rates than whites do. And there is pretty strong evidence that minority provisional ballots are rejected at higher rates [than those of whites]. And there is good, but not great, evidence that minority absentee ballots are rejected at higher rates. (Id.) As to absentee ballot usage, it appears from Dr. Timberlake’s analysis that minority voters actually use absentee balloting8 at lower rates than white voters. (Id. at 44.) When Dr. Timberlake conducted a regression analysis and controlled for the four variables discussed above, his findings showed that minority voters probably cast proportionately fewer absentee
8 Dr. Timberlake’s findings did not break out early in-person voting and mail-in absentee voting but rather included total absentee ballots cast. (Id. at 44-45.) Two other courts in this district have found that African-American voters use early in-person voting more than white voters. See OOC, slip op. at 36-39 (S.D. Ohio May 24, 2016); NAACP v. Husted, 43 F. Supp. 3d 808, 851 (S.D. Ohio 2014), vacated by 2014 WL 10384647 (6th Cir. Oct. 1, 2014).
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ballots than white voters in the 2012 and 2014 elections, although they cast slightly more than whites in 2008 and 2010. (Id. at 44.)
As to absentee ballot rejection, evidence suggests that in 2008 and 2012 (presidential election years), there was a positive relationship between minority population share and absentee ballot rejection. (Id. at 45.) This, according to Dr. Timberlake, shows that minorities’ absentee ballots are rejected more often than whites’, at least in presidential election years. (Id. at 47.) Dr. Timberlake did not have data on absentee ballot rejections for 2010, and he testified that in 2014 there was not a strong relationship between county-percent minority and the rejection of absentee ballots, leading him to conclude that the disparate impact was likely confined to presidential election years. (Id.) More specifically, Dr. Timberlake’s data showed that for every 100,000 residents of voting age, an additional one percent minority population in a county led to an additional 15.9 absentee ballots rejected in 2008 and 4.6 rejected in 2012. (Timberlake Rpt., P-1194 at 7-8)
As to provisional ballot usage, Dr. Timberlake found a positive correlation between a county’s minority population share and the number of provisional ballots cast for all years analyzed—i.e., 2008, 2010, 2012, and 2014. (Timberlake Tr., Vol. 5 at 48.) In 2008, for every 100,000 residents of voting age, an additional 58.6 provisional ballots were cast for each percent minority population in a county. (Timberlake Rpt., P-1194 at 9.) For 2010, 2012, and 2014, the corresponding numbers were 32.2, 50.7, and 7.2, respectively. (Id. at 9-10.)
As for provisional ballot rejections, “there [was] a higher rate of rejection of provisional ballots as the percent minority increases in all years except 2014.” (Timberlake Tr., Vol. 5 at 48.) So in 2008, 2010, and 2012, “provisional ballots are rejected at higher rates as the percent minority gets higher in the county” although this trend did not hold true in 2014. (Id.) The
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effect was more pronounced in presidential election years. Specifically, for every 100,000 residents of voting age, an additional 17.7 provisional ballots were rejected in 2008, 4.4 in 2010, 9.3 in 2012, and 0.3 in 2014. (Timberlake Rpt., P-1194 at 9-10.)
2. Dr. Nolan McCarty Dr. Nolan McCarty, an opinion witness for Defendant, served as a rebuttal witness to Dr. Timberlake. Dr. McCarty is Professor of Politics and Public Affairs and Chair of the Politics Department at Princeton University. (Test. of Nolan McCarty, Tr., Vol. 8 at 4.) He uses quantitative and statistical methods, including regression analysis, to analyze electronic and legislative voting data. (Id. at 4-5.) Dr. McCarty focused on evaluating what he characterized as Dr. Timberlake’s “claim[] that the new laws will enhance and increase racial disparities.” (Id. at 60.) Dr. McCarty’s testimony was two-fold: he criticized Dr. Timberlake’s methods and conclusions, and then offered his own approach. Dr. McCarty opined that Dr. Timberlake’s analysis suffered from two related problems: aggregation bias and omitted variable bias. (McCarty Rpt., D-11 at 6-7.) Aggregation bias “is the idea that we cannot infer things about individual-level behavior from aggregate data very precisely.” (McCarty Tr., Vol. 8 at 29.) Because Dr. Timberlake relied on county-level data to support his assertion that SBs 205 and 216 are likely to have a disparate impact on minority voters, Dr. McCarty concluded that it is difficult to draw from any correlation between minority population share and ballot rejection rates an individual relationship between race and rejection. (Id. at 29.) Such a relationship can only be certain when comparing data from two homogeneous populations, which is not possible at the county level in Ohio because its county with the highest minority population share is only about 30% minority and overall ballot rejection rates constitute only one or two percent of the votes. (Id. at 29-30.)
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Aggregation bias is a subset of omitted variable bias. (Id. at 41.) Omitted variable bias arises when a regression analysis does not account for other variables that could be responsible for the statistical relationships observed. (Id. at 33.) Although he acknowledged that Dr. Timberlake did account for some omitted variables, Dr. McCarty testified that many other factors completely unrelated to race could have explained the results in part, including the number and competitiveness of local political races, voters’ average distance from a polling location, and other factors. (Id. at 33-34.)
Dr. McCarty also performed his own analysis of Dr. Timberlake’s data, namely a “firstdifference” analysis, or an analysis of changes in ballot rejection rates within a county over time. (Id. at 39.) Specifically, Dr. McCarty compared provisional and absentee ballot usage and rejection rates across counties from 2010 (before the implementation of the challenged laws) to 2014 (after implementation). (Id. at 40-41.) According to Dr. McCarty, the first-difference analysis eliminates many concerns about omitted variable bias because one can assume that many other factors are consistent across two midterm election years in any given county. (Id. at 40.) From this analysis, Dr. McCarty concluded that the changes in the ballot-casting rejections rates from 2010 to 2014 “had no real relationship to the minority population share.” (Id. at 44.)
Although the Court recognizes and appreciates Dr. McCarty’s expertise and perspective, in the Court’s view, his criticism of Dr. Timberlake’s analysis is largely irrelevant, and the submission of his own methods only slightly probative. Dr. McCarty’s criticism of Dr. Timberlake’s analysis is irrelevant because the criticism adds nothing to the Court’s understanding of what Dr. Timberlake has already acknowledged, which is that the quantitative election data cannot definitively show an individual relationship between race and ballot usage and rejection because Ohio does not maintain data on the race of its voters. (Timberlake Tr.,
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Vol. 5 at 20-21.) As to aggregation bias, the Court notes that Dr. Timberlake could not have used precinct-level data rather than county-level data for his analysis of ballot rejection because Ohio does not maintain rejection rates of provisional and absentee ballots at the precinct level. Although Dr. Timberlake could have used precinct-level data to calculate absentee and provisional ballot usage, he had no choice but to use the county-level data to analyze rejection rate. As to omitted variable bias, although the Court recognizes that, of course, there are always more variables that could be included in a multivariable regression analysis, the factors that Dr. Timberlake used tend to be highly predictive of voting behavior and, therefore, Dr. Timberlake’s analysis, if not perfect, is nevertheless probative of disparate impact. (Id. at 28.)
Dr. McCarty’s first-differences analysis is only slightly probative because, as he admits, African-American voter turnout is lower—not only in absolute numbers, but relative to white voters—in midterm elections than presidential elections. (McCarty Tr., Vol. 8 at 62.) Because the Court finds Dr. Timberlake’s conclusions regarding disparate impact to be especially compelling in the presidential years of 2008 and 2012, Dr. McCarty’s analysis of changes from 2010 to 2014 is mostly irrelevant to Dr. Timberlake’s most persuasive findings of disparate impact. Second, the Court finds that even in this first-differences analysis, which purports to control for the important variables that contribute to the disparities between high-minority and low-minority counties, there was an appreciable difference in the competitiveness of the 2010 and 2014 gubernatorial elections (see Timberlake Rebuttal Rpt., P-1195 at 3; McCarty Tr., Vol. 8 at 68-699), and thus in voter turnout, and the Court finds that this factor, for which Dr. McCarty has not accounted, could be somewhat probative of the difference in provisional ballot rejections between the 2010 and the 2014 elections. 9 Republican John Kasich won the hotly contested 2010 gubernatorial election with 49% of the vote to Democrat Ted Strickland’s 47%, yet Kasich defeated Democrat Ed Fitzgerald 64-33% in 2014. (Timberlake Rebuttal Rpt., P-1195 at 3.)
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3. Dr. M.V. “Trey” Hood, III Defendant also called Dr. M.V. “Trey” Hood, III, as an opinion witness.10 Dr. Hood is a tenured professor of political science at the University of Georgia, and he teaches classes and has published articles on politics, including southern politics, racial politics, and election administration. (Test. of Trey Hood, Tr., Vol. 10 at 5-8.) Dr. Hood criticized the methodology and conclusions of Dr. Timberlake’s regression analysis. He reiterated Dr. McCarty’s concern about aggregate bias, a concern on which the Court has already explained it puts little weight. (Hood Rebuttal Rpt., D-10 at 9-10). The Court disagrees with Dr. Hood’s opinion that no conclusion can be drawn from the provisional ballot usage and data and, as discussed above, finds that Dr. Timberlake’s data and analysis paint a fairly compelling picture that minorities use provisional ballots more often than whites and that, in presidential years in particular, those ballots are rejected more often than the ballots of white voters. The Court infers from Dr. Timberlake’s analysis that in future presidential elections in which SB 205 and SB 216 are in place, minorities would be more likely to use provisional ballots and to have those ballots rejected. Neither Dr. McCarty nor Dr. Hood has offered convincing reasons for the Court to infer otherwise. (See McCarty Tr., Vol. 8 at 61.) Dr. Hood also suggests that the rate of provisional ballot rejections has decreased over time, and relies on the post-implementation data from 2014 and 2015 in so concluding, but as Dr. Timberlake pointed out in his rebuttal report, the provisional ballot rejection rate actually increased from 2014 to 2015, from 9.6% to 15.4%. (Timberlake Rebuttal Rpt., P-1195 at 4; see also McCarty Tr., Vol. 8 at 67.) The Court also finds more useful Dr. Timberlake’s calculations for provisional ballot rejections, which are calculated as a percentage of the provisional ballots
10 Much of Dr. Hood’s expert report and opinion testimony concerned Dr. Timberlake’s discussion of the Senate factors, which will be discussed in Section III(I)(1), infra.
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cast rather than Dr. Hood’s calculations using the total number of ballots cast in that election. (Timberlake Rebuttal Rpt., P-1195 at 3-4.) Using his own method, Dr. Timberlake found, contrary to Dr. Hood’s conclusion, that the provisional ballot rate has, in fact, fluctuated over time and shows no clear pattern other than that it was higher during the last two presidential election years (19.3% in 2008 and 16.5% in 2012) than the last two midterm election years (11.2% in 2010 and 9.6% in 2014). (Timberlake Rebuttal Rpt., P-1195 at 4.) Given that the rejection rate most recently increased again in 2015, the Court concludes that the data shows that it would be premature to assume that the provisional ballot rejection rate is declining, much less to suggest that SB 216 has actually caused fewer rejections, as Defendant suggests.
Besides criticizing Dr. Timberlake’s data, methodology, and opinions, Dr. Hood also testified as to what he considered to be valid reasons for enacting the new laws, notably improved election administration, including enabling Boards to identify voters more easily in a database and making it easier for voters to register if they cast a provisional ballot but were not properly registered in the appropriate county and precinct. (Hood Tr., Vol. 10 at 21-22.) He formed these opinions based on conversations with Assistant Secretary Damschroder and review of sworn statements by Board officials submitted in the OOC case. (Id. at 26.) Dr. Hood’s testimony does not particularly add to the Court’s understanding or interpretation of any of the testimony or submissions from representatives of the various Boards and Assistant Secretary Damschroder. The Court gives little weight to Dr. Hood’s opinion that the rejection of provisional ballots for trivial errors is unlikely to occur under the new law because the Boards review provisional and absentee ballots and “screen out” trivial errors from substantive errors, which he defines as errors that “preclude[] the Board from being able to identify who the voter is.” (Hood Rpt., D-8 at 4, 8; Hood Tr., Vol. 10 at 127.) This proffered opinion carries no weight
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because it assumes that Boards will not disenfranchise voters whom it can identify, even though
the evidence before the Court suggests that Boards have disenfranchised such voters.
In sum, Dr. Hood’s testimony and report were in large part irrelevant to the issues before
the Court and also reflected methodological errors that undermine his conclusions. Other courts have found likewise.11 As such, the Court finds his contribution of limited value.
4. Conclusions from Expert Reports
The Court finds that Dr. Timberlake’s methodology, given the limited data available on
the race of voters, accounted for sufficient factors to address the concerns arising from
aggregation bias and omitted variable bias. For the reasons outlined above, the Court gives great
weight to Dr. Timberlake’s conclusions that across all even-numbered election years, minorities
use provisional ballots more often than whites, and that in presidential election years, the
absentee ballots and provisional ballots of minority voters are more likely to be rejected than
those of white voters.
The Court gives little weight to Dr. McCarty’s opinions, finding that they are irrelevant to
Dr. Timberlake’s findings or do not refute his most compelling conclusions. The Court gives
little to no weight to Dr. Hood’s opinions.
11 See Veasey v. Perry, 71 F. Supp. 3d 627, 663 (S.D. Tex. 2014) (“On cross-examination, Plaintiffs pointed out a multitude of errors, omissions, and inconsistencies in Dr. Hood’s methodology, report, and rebuttal testimony, which Dr. Hood failed to adequately respond to or explain. The Court thus finds Dr. Hood’s testimony and analysis unconvincing and gives it little weight.”) (footnotes omitted); Frank v. Walker, 17 F. Supp. 3d 837, 881-84 (E.D. Wis. 2014) (discounting Dr. Hood’s findings), rev’d on other grounds, 768 F.3d 744 (7th Cir. 2014); Florida v. United States, 885 F. Supp. 2d 299, 324 (D.D.C. 2012) (“In finding that African-American voters in the covered counties will be disproportionately affected by the reduction in early voting days under the new law, we reject the contrary opinions of Florida's expert witness, Professor Hood. We do so because the analysis underlying his conclusions suffers from a number of methodological flaws.”) (footnotes omitted); Common Cause/Georgia v. Billups, No. 4:05-cv0201, 2007 WL 7600409, at *14 (N.D. Ga. Sept. 6, 2007) (excluding Dr. Hood as an expert witness as to absentee voting analysis because his testimony was either unreliable or not relevant).
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I. Racial Discrimination
1. The Senate Factors
In addition to their testimony on potential disparate impact by race, Drs. Timberlake and
Hood offered testimony and expert reports regarding the applicability of the Senate factors in this
case.12 Senator Turner and Representative Clyde also offered lay testimony that is relevant to a
consideration of the Senate factors. Courts use these factors, which come from Senate Judiciary
Committee recommendations issued in connection with the 1982 amendments to the VRA and
were incorporated and expanded by the Supreme Court in Thornburg v. Gingles, to determine
whether “the totality of circumstances” shows that minorities “have less opportunity than other
members of the electorate to participate in the political process.” 478 U.S. 30, 36 (1986) (citing
52 § U.S.C. 10301(b)). The factors include:
1. the extent of any history of official [voting-related] discrimination in the state or political subdivision . . . 2. the extent to which voting in the elections of the state or political subdivision is racially polarized; 3. the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group; 4. if there is a candidate slating process, whether the members of the minority group have been denied access to that process; 5. the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process; 6. whether political campaigns have been characterized by overt or subtle racial appeals; 7. the extent to which members of the minority group have been elected to public office in the jurisdiction. [8.] whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group[;][and]
12 Dr. Timberlake’s expert report on the Senate factors was prepared for the OOC case and also admitted at trial here.
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[9.] whether the policy underlying the state of political subdivision’s use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous. Id. at 36-37 (quoting S.Rep. No. 97-417, 97th Cong., 2d Sess., pages 28-29 (1982)). The Court finds the following facts relevant to an assessment of the “social and historical conditions” faced by African-American voters in Ohio. Id. at 47. As the Court will explain in detail, it finds Dr. Timberlake’s testimony regarding the Senate factors to be highly probative and gives little to no weight to Dr. Hood’s analysis of the Senate factors.
a. Fifth Factor: Extent of Discrimination Hindering Participation in Political Process
It is neither surprising nor accidental that African-Americans comprise a disproportionate share of NEOCH’s and CCH’s constituent homeless members. (See Davis Tr., Vol. 4 at 132, 186.) Ohio’s history of race-based discrimination has led to current racial disparities that are pervasive, profound, and deplorable. After examining socioeconomic indicators across the categories of employment, housing, income, education, and health, Dr. Timberlake came to the “simple” conclusion that there is “pronounced racial inequality on all of these indicators in the state of Ohio.” (Timberlake Tr., Vol. 5 at 64) (emphasis added). Indeed, “[r]ace-specific data from the Ohio subsample of the nationally representative American Community Survey (“ACS”) reveals substantial and entrenched inequalities.” (Timberlake Rpt., P-1194 at PTF-167) (emphasis added). For example, 34% of the African-American population in Ohio lives in poverty compared to 12% of the white population—a difference of nearly three to one. (Timberlake Tr., Vol. 5 at 69.) The disparities between Ohio’s African-American and white populations in family income and poverty are “stark.” (Timberlake Rpt., P-1194 at PTF-178.) Household income of African-Americans in Ohio is about 60% of that of whites across all counties, and in counties with a higher percentage of minority residents, the inequality is even
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worse. In those high-minority counties—where three-quarters of Ohio minorities live—white household income is 84% greater than African-American household income. (Id.)
Unemployment is significantly higher among working-age African-American Ohioans than white. (Id. at 167.) Job-level racial segregation has led to “the relegation of minority employees to lower-return and more precarious jobs, and ongoing minority vulnerability to discrimination in hiring, firing, promotion, demotion, and harassment.” (Id. at 166-67). Thirtyfive percent of white Ohioans hold professional positions compared to 25% of AfricanAmericans, while 53% of African-Americans hold service jobs compared to 41% of whites. (Id. at 168.) Because they are more likely to have professional positions, whites are more likely than African-Americans to have the greater job security, flexibility, earnings, and benefits that accompany those jobs. (Id.) Importantly, substantial research reveals that, even controlling for such factors as experience and education, significant disparities remain, indicating that discrimination plays a significant role in creating these employment disparities and job-level segregation, “especially when the disparities are as large as they are in Ohio.” (Id. at 169-70.)
Ohio also has pronounced race-based housing disparities. According to one recent nationwide analysis, Cleveland, Cincinnati, and Columbus are the 8th, 12th, and 22nd most segregated cities in the United States. (Id. at 171.) Whites in Ohio are almost twice as likely to be homeowners as African-Americans and, relatedly, African-Americans are more likely to move in any given time period than whites. (Id. at 173.) Indeed, over each year, 21.6% of African-American Ohioans move their residence compared to 13.1% of white Ohioans. (Id.) African-Americans live in substantially poorer neighborhoods than whites, the consequences of which include reliance on public transportation and lack of access to neighbors with resources such as cars, which could result in greater difficulties procuring transportation to places like
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polling locations and Boards. (Id. at 174-75.) Research indicates that African-Americans prefer living in integrated, as opposed to segregated, communities, so self-selection cannot explain these disparities. (Id. at 176).
What can? A large part of the current problem of race-based housing disparities is structural and generational—“the result of a long history of discrimination at the federal, state, [and] local . . . levels.” (Id. at 176.) For example, in the Great Depression, the United States government created the Home Owners Loan Corporation (“HOLC”) and the Federal Housing Administration (“FHA”) “to help families reclaim their homes from foreclosure and to foster homeownership among new generations of Americans.” (Id. at 176-77.) Using federal dollars, these agencies engaged in “redlining” practices, refusing to issue loans to residents in AfricanAmerican neighborhoods. (Id. at 177.) This practice was devastating for African-Americans in Ohio because they were “virtually shut out of the opportunity to buy or build homes” and languished in “older, decaying, segregated neighborhoods in central cities,” while the federal government subsidized white families’ exodus to the suburbs. (Id.) At the local level, Ohio municipalities have been found liable for discrimination against African-Americans under the Fair Housing Act. (Id.) As recently as last year, the Medina Metropolitan Housing Authority settled a housing discrimination suit brought by the United States Department of Housing and Urban Development (“HUD”). (Id.)
Along with the structural and generational roots of current racial disparities, there is also the problem of individual prejudice. African-Americans continue to experience longstanding discrimination at the hands of private landlords. For example, a HUD-funded study found that within the Cleveland suburban housing market, “African-American testers were more likely than white testers to receive poor treatment at the hands of real estate agents.” (Id.)
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Ohio also suffers racial disparities in educational opportunities and attainment. (Id. at 178.) Both Cleveland and Columbus were ordered by federal courts to take steps to desegregate their schools in the late 1970s—more than 20 years after Brown v. Board of Education. See Reed v. Rhodes, 422 F. Supp. 708 (N.D. Ohio 1976); Columbus Bd. of Educ. v. Penick, 443 U.S. 449 (1979). Even now, Ohio has three of the top 100 most segregated school districts in the nation: Cleveland, Youngstown, and Cincinnati. (Timberlake Rpt., P.-1194 at PTF-180.) African-American children are also disproportionately clustered in schools with high poverty rates. (Id. at 181.) For example, the average African-American child in Toledo goes to a school where four-fifths of her classmates live in poverty, compared to two-fifths for the average white child. (Id.) This degree of school poverty is significant because it reinforces racial disparities. Indeed, research suggests the following:
the higher the concentration of poverty in a school, the more negative overall implications for peer associations and aspirations, school and classroom climate, extracurricular programming, school physical quality, safety and resources, curriculum availability, spending per pupil, and teacher quality and experience, all of which hold consequences for race-specific gaps in educational attainment and achievement. Thus, African American children in the State of Ohio are significantly hampered by persistent, contemporary school segregation and the resource and social inequalities that emanate from that. (Id.) Race-based disparities in education in Ohio are evinced by educational attainment at both the low and high ends of the spectrum. (Timberlake Rpt., P-1194 at PTF-183.) At the most basic levels, African-American Ohioans are disproportionately illiterate compared to white Ohioans,13 (Timberlake, Tr., Vol. 6 at 21, 73), and African-American dropout rates are 7% higher
13 The court in the OOC case was unwilling to find that African-Americans have a lower literacy rate than whites despite evidence of disproportionate lower standardized test scores and higher high school dropout rates among African-Americans compared to whites. Reasonable minds might disagree as to the prudence of that particular finding in those circumstances, but the record
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than they are for whites. (Timberlake Rpt., P-1194 at PTF-183.) At the upper end, over a quarter of white adults in Ohio have attained a bachelor’s degree or higher, compared to less than 15% of African-Americans. (Id.) In high-minority counties, these racial disparities are even greater. (Id.)
Negative health indicators are more common in adult African-Americans than whites in Ohio, including high blood pressure (37.5% to 26.2%); diabetes (12.3% to 9.2%); stroke (3.4% to 2.1%); and disability generally (19.3% to 15.6%). (Id. at 186.) Worse yet, 27.6% of AfricanAmerican Ohioans are uninsured compared to 17.0% of whites. (Id.) African-American babies are twice as likely to be born with low birth weight, and the African-American infant mortality rate is 2.5 times that of the rate for whites. (Id.) Childhood asthma rates (19.5% for AfricanAmericans versus 12.2% for whites), preventative dental care (87.9% to 95.7%) and treatment for those with mental illness (60% to 30%) demonstrate a current and widespread problem of racially disproportionate health disparities between African-American and white Ohioans. (Id.)
b. First and Third Factors: Voting-Related Discriminatory Processes The history of Ohio’s racially discriminatory voting laws goes back to its founding. In 1802, the new state constitution explicitly limited voting rights to white men. (Id. at 190.) The exclusion of African-Americans from the franchise “was seen as initially important owing to concerns that freed slaves would migrate en masse to the State.” (Id.) Racial exclusion continued with the Ohio legislature’s passage of “Black Codes” and “Black Laws” from 1804-1807. Those codes instituted the following racist practices:  Requiring that “black or mulatto persons” have a court certificate validating
that they were in fact free.
there, unlike here, included no evidence that literacy and race were related per se. (OOC, slip op. at 82.)
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 Requiring that all “black or mulatto” adults and their children be registered with the county clerk’s office at the cost of 12.5 cents per name.
 Imposing penalties for employers who employed “black or mulatto” persons without such certification.
 Imposing penalties for any individual harboring a “black or mulatto person.”  Requiring African-Americans to prove they were not slaves and to find at
least two people who would guarantee a surety of five hundred dollars for an African-American’s good behavior.  Restricting interracial marriage and gun ownership among AfricanAmericans. (Id. at 190-91.) Although the Ohio legislature eventually repealed the laws in 1849, the exclusion of African-Americans from the franchise continued long after. (Id. at 191.) In 1868, the Ohio General Assembly amended the Act to Preserve the Purity in Elections, granting election officials the right to question prospective voters whether they were of African descent. (Id.) The Supreme Court of Ohio ruled the amendment unconstitutional, concluding that male citizens “having a visible admixture of African blood, but in whom the white blood preponderates, are white male citizens within the meaning the constitution of Ohio, and have the same right to vote as citizens of pure white blood.” Monroe v. Collins, 17 Ohio St. 665, 666 (1867). A 1912 state referendum to remove the race-based voting restriction in its entirety was defeated. (Timberlake Rpt., P-1194 at PTF-191.) It was not until passage of the 19th Amendment guaranteeing women’s suffrage that “white” was removed from the Ohio Constitution, leaving it facially discriminatory long after the ratification of the Fifteenth Amendment. (Id.) Throughout most of Ohio’s history, AfricanAmericans had virtually no representation in elected office. (Id.) In 1962, in response to the United States Supreme Court’s mandate in Baker v. Carr, 369 U.S. 186 (1962), Ohio and other states were required to craft congressional districts that accurately reflected the presence and concentration of certain voters, including African-Americans. The Ohio Constitution was later amended in 1967 to ensure more clearly proportional representation statewide. (Id.)
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And more recently, voting practices and changes in Ohio continue to discriminate against minority voters. Poll watching, for example, although ostensibly aimed at combatting voter fraud, has a pernicious history of intimidation of minority voters. (Id. at 192.) Groups such as True the Vote, an independent citizen group, were allowed to operate in some Ohio counties during the 2012 general election. (Id.) Franklin County banned the group’s activity due to, among other concerns, disturbing “complaints and reports that the group trained volunteers ‘to use cameras to intimidate voters when they entered the polling place, record their names on tablet computers and attempt to stop unquestionably qualified voters before they could get to a voting machine.’” (Id. at 192) (citing Ed O’Keefe, Tea Party-Linked Poll Watchers Rejected in Ohio County, Wash. Post, Nov. 6, 2012). True the Vote also furnished software to local citizen groups to monitor prospective voters, disparately targeting African-Americans and college students. (Id.)
In 2006, Ohio passed a voter ID law requiring all voters to announce their full name and current address and provide proof of their identity. (Id. at 194.) Studies have shown that voter ID laws are most common in states with a high percentage of minority residents. (Id.)
In response to the long lines and misallocation of voting machines that afflicted heavily minority precincts in the 2004 presidential election, Ohio expanded opportunities for early voting, including early-in person voting, which improved minority participation in the 2008 election. (Id. at 193.) Estimates from the Current Population Survey (CPS) Voting and Registration Supplement indicated that in 2008, 19.9% of African-Americans used early inperson voting compared to 6.2% of whites. (Id.)
But after the gains in minority participation in the 2008 election, Ohio introduced legislation to restrict ballot access, including HB 194, which was subsequently repealed by the
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General Assembly after citizens gathered signatures to place it on the ballot, and SB 238, which cut early in-person voting hours and eliminated Golden Week but was later enjoined due to its discriminatory effect. (Id. at 194; OOC, slip op. at 120.)
Dr. Hood finds fault with Dr. Timberlake’s analysis of historical discrimination because a number of the examples on which he relies are more than 200 years old. (Hood Rebuttal Rpt., D-10 at 5.) True enough, but this critique fails to account for the most recent actions to restrict voting rights, which Dr. Timberlake discusses in detail. (See Timberlake Rpt., P-1194 at PTF192-94.) And Dr. Hood’s contention that Ohio does not have a history of official discrimination simply because it was never covered under the preclearance provisions of Section 5 of the VRA is misplaced. (See Hood Rebuttal Rpt., D-10 at 5.) All states are required to comply with Section 2 of the VRA. As recently as last month, a court not only found that Ohio has a history of official discrimination, but also found that Ohio’s elimination of Golden Week violated Section 2. (OOC, slip op. at 102, 107-08.) Finally, Dr. Hood’s contention that Plaintiffs lack evidence of the first and third Senate factors because African-American turnout rates were roughly equivalent to white turnout rates in the two most recent presidential elections is, again, not probative of evidence about how discriminatory practices “tend to enhance the opportunity for discrimination against the minority group.” Gingles, 478 U.S. at 45.
c. Second Factor: Racially Polarized Voting in Ohio Racially polarized voting in Ohio is extensive. Exit polls from Ohio voters in the 2012 presidential election “suggest significant and substantial patterns of racially polarized voting.” (Timberlake Rpt., P-1194 at PTF-195.) Approximately 41% of white voters and 96% of African-American voters reported voting for President Barack Obama—an enormous differential. (Id.) Other statewide races, including presidential, gubernatorial, and senatorial
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races have yielded differentials of 40 to 60% or more. (Id. at 196-97.) And racially polarized voting is also evident in primary contests, such as the 2008 Democratic primary contest, in which 38% of white Ohio Democrats voted for Senator Obama, compared to 89% of AfricanAmericans. (Id. at 196.) Dr. Hood does not respond to Dr. Timberlake’s analysis of this factor other than to comment that the candidate who was favored by African-American voters often won the election (Hood Rebuttal Rpt., D-10 at 6), which is irrelevant to the question of whether there was racial polarization.
d. Sixth Factor: Racialized Appeals in Politics Recent political campaigns in Ohio have suffered from both overt and subtle racialized appeals, or “race codings.” (Timberlake Rpt., P-1194 at PTF-197.) These appeals serve to “discourage[e] or dissuad[e] minority voters and prospective candidates by reinforcing the message that they simply do not belong in the political process and/or by mobilizing white voters in a particular direction by playing on insidious, sometimes explicit and sometimes implicit, stereotypes.” (Id.) Political science research indicates that many political campaigns are designed to invoke fears surrounding crime, welfare, and immigration to “play on white racial stereotypes and to fuel animosity and mobilization,” which “allow[s] for racial appeal without the explicit appearance of race baiting.” (Id. at 197-98.) Plaintiffs have introduced many examples of racialized appeals. For instance, former Senator Turner testified about racially charged political attack ads against her when she ran for Ohio Secretary of State, including an Ohio Republican Party mail piece and television commercial, both of which referred to her as a “slum landlord” and distorted her picture to make her skin appear darker, which she interpreted as playing on pernicious stereotypes about AfricanAmericans. (Turner Tr., Vol. 6 at 148-49, 151.)
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Shortly before the 2012 presidential election, anonymous funders placed sixty “Voter Fraud” billboards in Cleveland and Columbus. Although voter fraud is a crime, there was little to no evidence that such fraud was taking place in Ohio. Tellingly, these billboards seemed to be strategically placed disproportionately in African-American and Latino neighborhoods in both cities, often within eyesight of large public housing communities. (Timberlake Rpt., P-1194 at PTF-198.)
During the same election season, the Tea Party Victory Fund aired a commercial featuring a shouting African-American woman claiming that President Obama gave her a cell phone and would take care of welfare recipients. (Id. at 199.) The commercial was an appeal to anti-welfare sentiment and, although it did not mention race explicitly, Dr. Timberlake wrote in his report that it nonetheless appeared to reinforce the stereotype that African-Americans are poor, lazy, and dependent on the government for handouts. (Id.)
In August 2012, Doug Preisse, Chairman of the Franklin County Republican Party, stated, “I guess I really actually feel we shouldn’t contort the voting process to accommodate the urban—read African-American—voter turnout machine.” This was not a slip of the tongue but, rather, a written response to a reporter’s question. (Id. at 200.)
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Dr. Hood takes issue with Dr. Timberlake’s characterization of racialized appeals in Ohio politics because some of Dr. Timberlake’s cited examples were not tied to a particular candidate—like Preisse’s comment about the African-American voter turnout machine—or funded by a particular campaign, like the billboards, for which a private family foundation paid. (Hood Rebuttal Rpt., D-10 at 6.) But the Court sees no reason why this distinction is relevant to an analysis of the presence of racialized appeals in politics more generally, given that the pertinent question is the effect of such appeals on minority voters, not the source.
e. Seventh Factor: Minority Representation Although Ohio has made “significant progress” in minority representation at the state and federal levels, African-Americans remain underrepresented in the most important and visible elected statewide posts. (Timberlake Rpt., P-1194 at 203.) For instance, despite comprising 12.4% of Ohio’s population, African-Americans have filled the positions of Governor, Lieutenant Governor, Attorney General, Auditor, Secretary of State, and State Treasurer only five times in Ohio history—one lieutenant governor, one secretary of state, and three state treasurers. (Id. at 202.) No African-American holds any of these positions currently. (Id.) Similarly, of the 156 justices on the Supreme Court of Ohio, only three have been AfricanAmerican, and only one of the nineteen current members of the State Board of Education is African-American. (Id.) Until last year, and for the first time in sixty years, the Governor’s twenty-six-person cabinet was entirely white. (Id. at 203.) In local offices and state legislative bodies, however, African-Americans hold elected office in numbers roughly proportional to their percentage in the population (e.g., the Ohio General Assembly) or even greater (e.g., the Columbus City Council). (Hood Rebuttal Rpt., D-10 at 7-8.)
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f. Eighth Factor: Lack of Responsiveness The primary evidence for Ohio’s lack of responsiveness to the particularized needs of African-American Ohioans is the extensive data and testimony concerning racial disparities in employment, housing, income, education, and health. (See Timberlake Rpt., P-1194 at 203.) Nor have many of those socioeconomic disparities improved in recent years. In 1989, for example, the African-American poverty rate in Ohio was 32.3%, while in 2013, it was 33.6%. (Id.) Disparities in employment rates have remained steady over the last few decades too. (Id. at 168; 203.) Moreover, Ohio has a history of requiring federal intervention to protect minority rights in the desegregation of its schools and housing. (Id. at 203-04.) Additionally, the legislature’s response to the increased minority access to the polls following the post-2004 election reforms has been to take repeated steps to limit such access, which suggests a lack of responsiveness to African-Americans. (Id. at 204.) Senator Turner also testified that Secretary Husted, to the best of her knowledge, never reached out to her or any other members of the Ohio Legislative Black Caucus to ask for their input regarding how any of the voting procedures or directives he has implemented might affect African-American voters. (Turner Tr., Vol. 10 at 157-58.)
g. Ninth Factor: Tenuousness Defendant does not argue here, as he has in defending other election laws,14 that SBs 205 and 216 are justified by cost savings or preventing voter fraud. Defendant’s primary justification for the challenged laws is that they improve election administration, representing “the result of more than a decade of efforts by legislators, boards of elections, and state elections officials to continuously evaluate and improve Ohio’s voting systems.” (Def.’s Proposed Findings of Fact and Conclusions of Law, Doc. 686 at ¶ 18.) But, given that the State’s justifications are not 14 See NAACP, 43 F. Supp. 3d at 818-19.
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supported by evidence, see infra, Section IV(B)(1), and SB 216’s sponsor, Senator Seitz, admitted in a news article to trying to “ratchet back” the post-2004 voting laws that expanded opportunities for voters, the justifications for SBs 205 and 216 appear tenuous. (Timberlake Rpt., P-1194 at PTF-204.)
2. The Calculus of Voting In addition to his testimony on the Senate factors, Dr. Timberlake testified about how the Calculus of Voting could explain what causes the disparate impact he identified in absentee ballot rejection rates and provisional ballot usage and rejection rates. Developed from rational choice theory, the Calculus of Voting is a framework to assess the individual thought processes and social mechanisms that influence whether potential voters choose to vote. (Timberlake Tr., Vol. 5 at 56-57.) For example, in the OOC case, Dr. Timberlake considered voters’ employment. (Id. at 57.) Voters with blue-collar jobs are more likely to have inflexible work schedules and to lack financial resources or access to a car and, therefore, might not vote because voting would pose too costly a burden to be justified by the result of those voters’ ballots. (Id.) In that case, the Calculus of Voting provided a basis to explain why, for example, AfricanAmericans would use early in-person voting more frequently, namely because AfricanAmericans are more likely to be wage workers than whites and early in-person voting is a more flexible way to vote. (Id.) Here, the Calculus of Voting helps explain why increasing the information required to be filled out correctly by voters might depress those illiterate voters’ willingness to participate in elections. (Id. at 58.) And because the challenged laws reduce the post-election cure period from ten days to seven, thus decreasing the flexibility afforded to voters to cure problems with their ballots, voters with less flexible schedules might be less able or likely to cure defects,
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particularly since provisional voters must go to the Board in person to cure the ballots. (Id. at 5960.) Therefore, given the evidence of profound socioeconomic disparities between whites and African-Americans, the Calculus of Voting explains why African-Americans may be more likely to have their ballots thrown out for errors in the five fields due to their lower educational attainment levels (which are correlated with literacy rates) or may have more difficulty curing their provisional ballots because they are less likely to have the flexible work schedule and access to transportation to go to the Board. (Id. at 61-62, 73.)
Dr. McCarty testified that he had no opinion on the usefulness of the Calculus of Voting framework or its applicability to this case. (McCarty Tr., Vol. 8 at 81.) Dr. Hood was not directly questioned about the Calculus of Voting but did acknowledge that factors like higher residential mobility could affect voter turnout and the provisional ballot casting rate. (Hood Tr., Vol. 10 at 121, 124.) The Court finds this method to be persuasive in offering an explanation for some of the causal factors that may influence the disparities in provisional ballot usage and absentee and provisional ballot rejection rates.
IV. CONCLUSIONS OF LAW A. Standing
The Court has an “independent obligation to ensure [its] jurisdiction over a case.” In re Cannon, 277 F.3d 838, 852 (6th Cir. 2002). Based on its factual findings and the relevant law, the Court concludes that Plaintiffs NEOCH, CCH, and ODP have constitutional and prudential standing to bring all of their claims.15
To establish constitutional standing, a plaintiff must show: (1) an “injury in fact” that is concrete and particularized and actual or imminent; (2) a causal connection between the injury
15 The Court will address separately, in Section IV(C), the parties’ arguments regarding Plaintiffs’ statutory standing under the Voting Rights Act.
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and the conduct complained of; and (3) a likelihood, rather than mere speculation, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
NEOCH, CCH, and ODP have both organizational and associational (or representational) standing to bring this suit. An organization may assert constitutional standing in one of two ways: “(1) on its own behalf because it has suffered a palpable injury as a result of [a defendant’s] actions; or (2) as the representative of its members.” MX Grp., Inc. v. City of Covington, 293 F.3d 326, 332-33 (6th Cir. 2002). Additionally, NEOCH and CCH have thirdparty standing to assert their members’ interests.
1. Organizational Standing As to organizational standing, Plaintiffs have shown that the challenged laws have created and will create “a drain on [the] organization[s’] resources,” which “constitutes a concrete and demonstrable injury for standing purposes.” Miami Valley Fair Housing Ctr., Inc. v. Connor Grp., 725 F.3d 571, 576 (6th Cir. 2013) (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982)). Here, the Court finds that NEOCH has diverted resources from its voteby-mail program to early in-person voter turnout due to its assessment that the challenged laws will increase the likelihood that its members’ ballots will be thrown out, and that in the 2016 election it will have to continue that diversion of resources. Driving voters to the polls requires more resources than NEOCH’s vote-by-mail campaigns and will result in a greater drain on NEOCH’s resources, a drain that will be especially pronounced in 2016 because it is a presidential year that requires turning out more voters. CCH, in turn, must increase its votereducation efforts by explaining new voting requirements to its homeless members and training its members to educate other members about those requirements. Finally, ODP must divert
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resources from registering and educating new voters to educating other voters about the new procedural requirements in the challenged laws. This diversion of resources will prove even more burdensome due to the FEC’s requirement that GOTV activity be paid for from “hard” dollars, which have more strict contribution limits and are thus harder to raise than “soft” dollars. SB 205 and SB 216 have altered the course of Plaintiffs’ “daily operations” and caused them injury. See Am. Canoe Ass’n v. City of Louisa Water & Sewer Comm’n, 389 F.3d 536, 546-47 (6th Cir. 2004) (finding organizational standing where the organizations’ “daily operations are stymied to the extent that they can no longer honor their own monitoring and reporting obligations to their members”).
The factual record supports the Court’s conclusion that Plaintiffs, with their limited organizational resources, have diverted and will continue to divert funds as a result of the challenged laws. See Miami Valley, 725 F.3d at 576; cf. Fair Elections Ohio v. Husted, 770 F.3d 456, 461 (6th Cir. 2014) (holding that the plaintiff lacked organizational standing because it maintained only an “abstract social interest in maximizing voter turnout” as opposed to a concrete financial interest in encouraging ballot access). Although the Sixth Circuit held in Fair Elections Ohio that an organization is not injured when it must “instruct election volunteers about absentee voting procedures when the volunteers are being trained in voting procedures already,” the organizational plaintiff in that case asserted only that it would have to change its training program and materials. Id. at 459-60. Here, on the other hand, Plaintiffs would be compelled to revamp their entire get-out-the-vote strategy to focus on early in-person absentee voting instead of vote-by-mail absentee voting due to the increased risk of error in the mail-in absentee balloting process. Because this new get-out-the-vote effort will be more costly and
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time-consuming, NEOCH and CCH have shown a significantly greater injury than the Fair Elections Ohio plaintiff.
As to ODP, a showing that a political party would be “compell[ed] . . . to devote resources to getting to the polls those of its supporters who would otherwise be discouraged by the new law from bothering to vote” is sufficient to confer standing. Crawford v. Marion Cnty. Election Bd., 472 F.3d 949, 951 (7th Cir. 2007), aff’d, 553 U.S. 181, 189 n.7 (2008) (“We also agree with the unanimous view of [the Seventh Circuit panel] that the Democrats have standing to challenge the validity of [the voter ID law] and that there is no need to decide whether the other petitioners also have standing.”). And “[t]he fact that the added cost has not been estimated and may be slight does not affect standing, which requires only a minimal showing of injury.” Id. (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-84 (2000)). Moreover, in Fair Elections Ohio, the panel majority explicitly observed that if “a political party can marshal its forces more effectively by winning its lawsuit, that ought to be enough for Article III” standing. 770 F.3d at 460 (contrasting political party’s standing with “armchair observer[s] [who] decide[] that the government is violating the law”). See also OOC, slip op. at 24-28 (finding that ODP had standing to challenge election laws, some of which also are challenged here).
Here, the Court concludes that all three Plaintiffs’ diversion of organizational resources constitutes an injury-in-fact. Further, Plaintiffs have shown that the enactment of the challenged laws has caused the diversion of resources and that, absent the enforcement of these laws, they would not be required to divert these resources.
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2. Associational or Representational Standing Plaintiffs also have shown that they have associational standing, or standing to bring suit on behalf of their members. An association has standing to bring suit on its members’ behalf “when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Laidlaw, 528 U.S. at 181 (citing Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977)). In Sandusky County Democratic Party v. Blackwell, the Sixth Circuit found that a state and local political party and three labor unions had associational standing to challenge the rejection of provisional ballots cast in the wrong precinct even though the plaintiffs had not “identified specific voters who will seek to vote at a polling place that will be deemed wrong by election workers.” 387 F.3d 565, 574 (6th Cir. 2004) (per curiam). The court reasoned that “by their nature, mistakes cannot be specifically identified in advance. . . . It is inevitable, however, that there will be such mistakes.” Id. Therefore, the court concluded that the injury was not speculative, but real and imminent, and that the organizations had standing to assert “the rights of their members who will vote in the November 2004 election” even though they could not pinpoint which members would be harmed by having their names dropped from the voter rolls or listed in an incorrect precinct. Id. Similarly, Plaintiffs here have shown that their members are at risk of being disenfranchised in the 2016 general election due to a failure to fill out the five-field information correctly or cure their ballots within the allotted cure period. Each organizational plaintiff has shown that the interests at stake are germane to the organization’s purpose. See Laidlaw, 528 U.S. at 181. NEOCH and CCH both seek to encourage homeless people to advocate for their interests, an important component of which is to
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register to vote and to vote. ODP registers its members, educates them about voting procedures and requirements, and encourages them to vote for Democratic candidates.
Nor is there any doubt that individual members of NEOCH, CCH, and ODP would have standing to sue in their own right. The individuals these organizations serve would have standing to challenge SB 205 and SB 216 in their own right because, as members of a highly transient population with low literacy rates, they stand at risk of being disenfranchised.
Finally, the participation of individual members in the lawsuit is unnecessary because Plaintiffs seek injunctive relief, which would affect all Ohio voters. See Hunt, 432 U.S. at 344 (noting that a request for declaratory and injunctive relief does not require individualized proof and is thus “properly resolved in a group context”); see also United Food and Commercial Workers Union 751 v. Brown Grp., Inc., 517 U.S. 544, 546 (1996) (same). Therefore, the Court concludes that Plaintiffs have associational standing to bring their claims.
3. Third-Party Standing Additionally, NEOCH and CCH have third-party standing to bring their claims. Generally, a party “must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, 422 U.S. 490, 499 (1975). A limited exception to this rule applies, however, where: (1) the party asserting the right has a “close” relationship with the person who possesses the right; and (2) the possessor of the right is hindered in her ability to protect her own interests. Kowalski v. Tesmer, 543 U.S. 125, 129-30 (2004) (quoting Powers v. Ohio, 499 U.S. 400, 411 (1991)). Whether a close relationship and hindrance exist are questions of fact. Singleton v. Wulff, 428 U.S. 106, 114-15 (1976). NEOCH and CCH have close relationships with homeless populations in Cuyahoga and Franklin Counties such that they are “fully, or very nearly, as effective a proponent of the right
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as” homeless individuals themselves. Id. at 115. NEOCH and CCH regularly work with homeless individuals, advocate for their needs, connect them to necessary social services, and encourage their participation in civic life. The Supreme Court has recognized relationships between lawyers and clients or doctors and patients as sufficiently close to confer third-party standing and stressed that third-party standing may lie when the litigant has a relationship as an “advocate” for the third-party. See Eisenstadt v. Baird, 405 U.S. 438, 445-46 (1972); see also Carey v. Population Servs., Int’l, 431 U.S. 678, 683-84 (1977) (holding that retail seller of contraceptives had third-party standing on behalf of customers to challenge statute restricting the sale of contraceptives). Again, Fair Elections Ohio does not control because the plaintiff there, a federation of churches conducting voter outreach, had no particular connection to the individuals at risk of disenfranchisement—registered voters who were jailed after 6:00 p.m. on the Friday before Election Day and not released in time to cast their votes in person—and, therefore, these “unidentified, future late jailed voters” lacked a close relationship with the federation. 770 F.3d at 461.
As to hindrance, Plaintiffs have shown that NEOCH’s and CCH’s members, as some of the most vulnerable individuals in the state, suffer disproportionately from mental health problems, substance abuse, limited financial resources, and low levels of literacy and education. Due to these challenges, they often have difficulty navigating the court system, obtaining counsel, maintaining a consistent address and phone number, and obtaining ID that would allow them access to courtrooms. A right holder’s hindrance need not be “insurmountable” but only “genuine.” Singleton, 428 U.S. at 116-17. The homeless individuals served by NEOCH and CCH face exactly the kind of “practical obstacles” the Supreme Court has recognized as sufficient to confer third-party standing. Sec’y of State of Md. v. Joseph H. Munson Co., 467
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U.S. 947, 956 (1984). NEOCH and CCH have shown that they bear a close relationship to the homeless populations they serve, and that such individuals are hindered by numerous obstacles in their ability to protect their own interests. Therefore, NEOCH and CCH have third-party standing to assert the claims of their members.
B. Constitutional Claims 1. Equal Protection: Undue Burden The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution guarantees that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV. This includes protecting a qualified citizen’s right to vote, which is a right “of the most fundamental significance under our constitutional structure.” Burdick v. Takushi, 504 U.S. 428, 433 (1992) (quoting Ill. Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979)). Undermining this right renders even the most basic of other rights “illusory.” Wesberry v. Sanders, 376 U.S. 1, 17 (1964). Restrictions on the franchise in presidential elections “implicate a uniquely important national interest” because only the President and Vice President represent all voters across the country and, accordingly, a state’s restrictions “ha[ve] an impact beyond its own borders.” Anderson v. Celebrezze, 460 U.S. 780, 794-95 (1983). The right includes both “the initial allocation of the franchise” and also “the manner of its exercise,” League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 477 (6th Cir. 2008) (quoting Bush v. Gore, 531 U.S. 98, 104 (2000)), and one aspect of “the manner of its exercise” is when a State “places restrictions on the right to vote,” as Ohio has done here, Obama for Am. v. Husted, 697 F.3d 423, 428 (6th Cir. 2012). Balanced against a citizen’s fundamental right to vote is the responsibility of the States to choose the “Times, Places and Manner of holding Elections,” U.S. Const., Art. I § 4, cl. 1, which
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gives them “the power to regulate their own elections,” Burdick, 504 U.S. at 433. The regulation of elections is, of course, necessary to ensure that they are fair, orderly, and honest. Storer v. Brown, 415 U.S. 724, 730 (1974).
In conducting an equal-protection analysis, “[t]he precise character of the state’s action and the nature of the burden on voters will determine the appropriate equal protection standard.” Obama for Am., 697 F.3d at 428-29. This begins with an analysis of the regulations at issue. See id. (citing Biener v. Calio, 361 F.3d 206, 214 (3d Cir. 2004)).
In evaluating the constitutionality of laws that impose no burden on the fundamental right to vote, courts apply rational basis review. Ne. Ohio Coal. For the Homeless v. Husted, 696 F.3d 580, 592 (6th Cir. 2012) (“NEOCH”). On the other hand, a law that “‘severely’ burdens the fundamental right to vote,” such as a poll tax, triggers strict scrutiny, Obama for Am., 697 F.3d at 429 (quoting Burdick, 504 U.S. at 434), and must be “narrowly drawn to advance a state interest of compelling importance,” Norman v. Reed, 502 U.S. 279, 289 (1992). And “[fo]r the majority of cases falling between these extremes, [courts] apply “the ‘flexible’ Anderson-Burdick balancing test.” NEOCH, 696 F.3d at 592 (quoting Burdick, 504 U.S. at 434). The AndersonBurdick test provides 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 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). This balancing of interests is necessarily fact-intensive. See Obama for Am., 697 F.3d at 429. There is no “‘litmus test’ that would neatly separate valid from invalid restrictions,” so the trial court must weigh the burden on voters against the state’s asserted justifications and “make
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the ‘hard judgment’ that our adversary system demands.” Crawford, 553 U.S. at 190 (Stevens, J., plurality opinion). When the Court identifies any burden a state law places on the right to vote, “[h]owever slight that burden may appear, . . . it must be justified by relevant and legitimate state interests ‘sufficiently weighty to justify the limitation.’” Id. at 191 (quoting Norman, 502 U.S. at 288-89).
Plaintiffs challenge three specific provisions in both SB 205 and SB 216: (1) the requirements that voters must accurately complete five fields on the provisional ballot affirmation and absentee identification envelope before their ballots can be counted; (2) the prohibitions against poll-worker assistance to voters; and (3) the reduction in the period to cure deficient ballots from ten to seven days after the election. Mindful that the Court’s task is to balance 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,’” Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789) (emphasis added), the Court will analyze the burden with particular attention to the record evidence regarding relevant characteristics of the homeless constituencies of Plaintiffs NEOCH and CCH.
This is in keeping with Crawford, where a plurality of the Supreme Court acknowledged that, although for most voters it is not a substantial burden to comply with a photo ID requirement, a “somewhat heavier burden may be placed on a limited number of persons . . . includ[ing] elderly persons born out of State, who may have difficulty obtaining a birth certificate[,] . . . homeless persons[,]” and others. 553 U.S. at 198-99. Although the Crawford Court rejected the plaintiffs’ argument that the law should be enjoined on the basis of the burden to that smaller group of voters, it did so because the record in that case did not contain evidence
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of the specific burdens imposed on those vulnerable groups. Id. at 201-02. Because the record
was virtually devoid of evidence that would have allowed the Court to measure the “magnitude
of the burden on this narrow class of voters or the portion of the burden imposed on them that is
fully justified,” id. at 200, the Court considered only the burden on all Indiana voters, which it determined was only “limited,” id. at 203.16 Here, as this Court explains below, Plaintiffs have
introduced sufficient evidence to show a significant burden on NEOCH’s and CCH’s members
as to the three aspects of the challenged laws.
a. Information Requirements
Plaintiffs NEOCH and CCH argue that the challenged laws will impose a burden on the
right to vote of their illiterate and homeless members. The Court agrees. The weight of the
evidence presented at trial compels the Court to find that the information requirements impose a
significant burden on NEOCH and CCH because many illiterate and homeless voters have
difficulties filling out forms correctly, as discussed in the Court’s findings of fact in Section
III(F)(1). The Court now turns to whether the State’s “precise interests” for maintaining the laws
are “sufficiently weighty” and “necessary” to justify the burden. See Obama for Am., 697 F.3d
at 433.
16 Defendant cites Justice Scalia’s concurrence in Crawford that stated “our precedents refute the view that individual impacts are relevant to determining the severity of the burden [the law] imposes.” 553 U.S. at 205 (Scalia, J., concurring). Justice Scalia, writing for three Justices, argued that rather than upholding the law on the basis that the record did not show a substantial burden on particular groups of vulnerable voters, the Court should not have taken into account the law’s effects on any group but the electorate as a whole, characterizing the lead opinion as endorsing a “case-by-case approach [that] naturally encourages constant litigation.” Id. at 208. The Sixth Circuit has declined to follow the concurring opinion’s approach. Obama for Am., 697 F.3d 441 n.7. This approach failed to garner support from a majority of the justices, as it was disfavored by the lead opinion and implicitly by the two dissents, both of which discussed the specific burdens the law would impose on poor, elderly, or disabled voters who would have difficulty procuring transportation to the Bureau of Motor Vehicles or obtaining the documents required to get the free voter ID. Crawford, 553 U.S. at 220-22 (Souter, J., dissenting); id. at 238-39 (Breyer, J., dissenting).
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The Court finds that the State has not offered explanations for the portions of the law disenfranchising voters who fail to conform to the new informational requirements that are sufficiently weighty to justify the significant burden on homeless voters who struggle to fill out the forms completely and accurately. Unlike in several other cases in which courts have scrutinized voting restrictions in Ohio,17 Defendant has not offered combatting voter fraud as a justification for requiring the additional information, so the integrity of the process is not at issue. Boards are thus rejecting ballots from qualified voters for mere technical mistakes. Significantly, the OAEO did not support this portion of the law. Although otherwise generally supportive of many of the reforms, OAEO did not weigh in on whether the new requirements should cause ballots to be rejected for nonconformance. (Terry Tr., Vol. 11 at 96.) And Defendant’s own election administration opinion witness, Dr. Hood, conceded that many of the errors causing ballots to be rejected are “trivial.” (Hood Tr., Vol. 10 at 127.) In fact, Dr. Hood stated that the purpose of the five-field requirement was “to positively identify voters, not to disqualify ballots based on inconsequential errors on the part of voters,” suggesting that he may not have even understood that ballots would be thrown out for non-conformity with the requirements, much less could he offer a significant state interest in doing so. (Hood Rpt., D-8 at 8 n.15.)
Defendant’s justification that the new requirements give Boards more information for identifying and registering voters may be persuasive as a reason to include the five fields on the form, but it is unpersuasive as a rationale for rejecting ballots with missing or incomplete information. While giving Boards more information can certainly prove helpful for both identification and future registration, (see, e.g., Ward Tr., Vol. 7 at 205, 234), Defendant has
17 See, e.g., NEOCH, 696 F.3d at 596; Sandusky Cnty. Democratic Party, 387 F.3d at 569; NAACP, 43 F. Supp. 3d at 844.
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failed to prove in any way how disenfranchising voters who fail to conform to the requirements furthers that goal. Board officials have testified that they did not need all five fields to identify voters, and in most cases easily could identify voters before the new date-of-birth and address requirements. (Perlatti Tr., Vol. 2 at 73; Bucaro Tr., Vol. 6 at 41-42; Sauter Tr., Vol. 7 at 127-28) For absentee ballots, it is even easier for the Board to confirm a voter’s identity because the identification envelopes in which voters return their absentee ballots have unique bar codes on them which, when returned to the Board, can be used to identify the voter. (Burke Tr., Vol. 2 at 185; Manifold Tr., Vol. 3 at 97-99; Scott Tr., Vol. 6 at 223-24; Damschroder Tr., Vol. 11 at 211.) Moreover, because absentee voters have already provided the information in the five fields when completing their absentee-ballot application, the Board already has this information and it is unnecessary to have all five fields for identification; one piece of information would suffice. See Ohio Rev. Code § 3509.03(A)-(E).
Because they can usually identify the voter with the bar code (for absentee ballots) and one or two fields (for provisional ballots), requiring Boards to spend additional time checking that each of the five fields is filled out completely and accurately before crediting it actually takes additional time for election officials, thus further undermining the State’s purported administrative-convenience justification. (Damschroder Tr., Vol. 11 at 203; Burke Tr., Vol. 2 at 191-92.) In the case of absentee ballots, Boards are required to expend even more time and resources because when they receive incomplete or incorrect identification envelopes, rather than simply counting the ballots if they can identify the voters, they must send the Form 11-S notifying voters of the deficiency and giving them an opportunity to cure the errors or omissions. (Id. at 192.)
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Additionally, there is nothing in the record to show why uniformity, standing alone, is a sufficiently weighty interest to justify the burden on Plaintiffs. And again, even if there is a uniformity interest—which Defendant characterizes as somewhat related to administrative convenience—in standardizing all the required types of absentee and provisional balloting forms, the Secretary offers no justification for why uniformity requires rejecting nonconforming ballots.
Finally, the Court finds it significant and telling that Assistant Secretary Damschroder expressed regret for not conducting literacy testing on the forms prior to their issuance for the sole reason that doing so would have avoided litigation. (Damshroder Tr., Vol. 12 at 31.) He prefaced this admission with “I don’t intend this answer to sound flip,” but irrespective of whether he meant it to be “flip,” the answer raises a question about the motivation for this burden on voters’ rights. This is the same witness who, just a day earlier, agreed that Defendant should do everything within reason to ensure that qualified voters are able to cast ballots that are counted. (Damschroder Tr., Vol. 11 at 179.) The State’s interest in avoiding litigation certainly does not outweigh the burden on NEOCH’s and CCH’s members, some of our most vulnerable citizens.
Defendant characterizes one of the Sixth Circuit decisions in the related SEIU case as closely analogous to the issue of the five-field requirement here. See NEOCH, 696 F.3d at 599600.18 There, the Sixth Circuit affirmed in part and reversed in part a preliminary injunction granted by this Court, finding that the plaintiffs were unlikely to succeed on the merits of their challenge to the disqualification of deficient provisional ballot affirmation forms because the instructions on the provisional ballot form, which at the time included only fields for name, identification, and signature (with the signature field being optional), were “rather simple.” Id. The Sixth Circuit faulted this Court’s Anderson-Burdick analysis as both overstating the burden 18 The NEOCH and SEIU cases were consolidated on appeal for purposes of that opinion.
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to voters in compliance with this form and minimizing the “legitimate state interests” in “election oversight and fraud prevention.” Id. Based on the ample factual record at trial that detailed the obstacles faced by homeless and illiterate or semi-literate voters and the number of rejections for errors in the date-of-birth and address fields on the forms in question, the Court finds that the burden here is far from “minimal” and “unspecified.” See id. at 600. Moreover, Defendant has not asserted fraud as a justification here and, most importantly, the other state interests, as the Court has explained exhaustively, provide no rationale for making the five fields mandatory, much less a “sufficiently weighty” one to “justify the limitation” on Plaintiffs’ rights. Crawford, 553 U.S. at 191 (quoting Norman, 502 U.S. at 288-89). Accordingly, the Court finds that the five-field requirement violates Plaintiffs’ equal-protection rights.
b. Prohibition Against Poll-Worker Assistance The Court finds that prohibiting poll workers from assisting voters unless the voter declares her illiteracy or disability imposes a significant burden on NEOCH and CCH, because as discussed in the Court’s findings of fact in Section III(F)(2), many of their members are illiterate, barely literate, or suffering from disability or mental illness, which limits their ability to complete basic voting-related tasks. The Court then finds lacking the State’s justifications for preventing poll workers from assisting voters who do not affirmatively ask for help because they are illiterate or disabled. Although there is always a risk of poll-worker error, just as there is of voter error, poll workers are trained and certainly more skilled in filling out forms than homeless voters. (See Terry Tr., Vol. 11 at 39-40.) Particularly when missing or incomplete information is a problem—for instance, if a voter leaves a field completely blank or writes in a street number without an address—poll workers are much more likely to be able to help a voter than to create
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an error. And Assistant Secretary Damschroder conceded that he was not aware of any other government workers who are explicitly barred from helping people fill out forms unless they specifically request assistance, which suggests that a restriction like this is not necessary to burden homeless voters’ rights, given that many other government agencies also likely have an interest in avoiding creating errors on forms. (Damschroder Tr., Vol. 12 at 30; Clyde Tr., Vol. 1 at 50.) Because Plaintiffs’ members require so much assistance—NEOCH fills out forms of all types for its members as a matter of course—the Court concludes that the State’s interest in minimizing poll-worker error, although not completely unfounded like some of the other interests it has put forth, does not outweigh the magnitude of the burden in this case. See Burdick, 504 U.S. at 434.
c. Reduction of the Cure Period As discussed in Section III(F)(3), supra, NEOCH and CCH represent voters whose means are much more limited than the average voter. They are, for example, less likely to have access to reliable transportation and more likely to suffer from residential instability. As to absentee voters specifically, limiting the cure period would be especially burdensome for voters with low literacy who may need to seek assistance in reading the Form 11-S and filling it out before returning it to the Board. Limiting the window in which they may cure a deficient ballot imposes a significant burden on homeless, impoverished, and illiterate voters. The Court now turns to whether the State’s interests are “sufficiently weighty to justify the limitation” on Plaintiffs’ rights. Norman, 502 U.S. at 288-89. The reduction of the post-election cure period to seven days does not survive any sort of heightened scrutiny. Of the twenty-one Board officials who testified at trial, not one indicated that he or she had experienced any inconvenience or increased cost during the pre-2014 ten-day
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cure period, or stated that the county Board needed extra time between the conclusion of the cure period and the start of the canvass to address any particular matters. (See, e.g., Burke Tr., Vol. 2 at 184-85; Terry Tr., Vol. 11 at 88-89.) Senator Seitz, one of the bills’ sponsors, told Allen County Board of Elections Director Terry that the reduction was intended to prevent an influx of voters from coming into the Boards while election officials were preparing to conduct their canvass. (Terry Tr., Vol. 11 at 88.) Terry responded, “[t]hat doesn’t happen.” (Id.) Although the Court heard testimony from several Board officials that the few weeks immediately following the election were quite “busy” (Poland Tr., Vol. 10 at 231), there was no testimony that eliminating the cure period actually saves Boards any time or staff resources. And Assistant Secretary Damschroder’s testimony that the three additional days gives the Boards time to “get everything ready for the Board to actually vote,” or begin the canvass (Damschroder Tr., Vol. 12 at 41), is not substantiated by testimony from any of the actual Board officials who testified at trial, none of whom mentioned any specific tasks that needed to be conducted between the end of the cure period and the beginning of the canvass.
In Obama for America, the Sixth Circuit concluded that the State’s proffered interest in reducing costs and administrative burdens did not justify the increased burden on voters of eliminating early voting the weekend before the election because there was “no evidence that local boards of elections have struggled to cope with early voting in the past [and] no evidence that they may struggle to do so during the November 2012 election.” 697 F.3d at 434. Similarly here, although “the list of responsibilities of the boards of elections is long, . . . 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” the ten-day cure period was in
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place. Id. at 432-33. Therefore, the Court finds no evidence that the cure period would benefit the Boards by alleviating their administrative burden in any way.
In sum, the Court finds that the five-field requirement, the prohibition against poll-worker assistance to voters, and the seven-day cure period in both SB 205 and SB 216 violate Plaintiffs’ equal-protection rights. The Court ENTERS JUDGMENT FOR PLAINTIFFS on this claim.
2. Equal Protection: Disparate Treatment of Election-Day, Provisional, and Absentee Voters
State law and election procedure “must not result in ‘arbitrary and disparate treatment’ of votes.” Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219, 234 (6th Cir. 2011). The Court considers Plaintiffs’ equal-protection claim of arbitrary-and-disparate treatment under the Anderson-Burdick framework. See Obama for Am., 697 F.3d at 430; Jolivette v. Husted, 694 F.3d 760, 771 (6th Cir. 2012) (“We examine [the plaintiff’s] equal-protection challenges to the Ohio statutory framework using the same balancing framework as his First Amendment challenge.”).
To prevail on an equal-protection claim, Plaintiffs must show that the government has “treat[ed] differently persons who are in all relevant respects alike.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992); see also Jolivette, 694 F.3d at 771 (“[The plaintiff’s] equal-protection claims do not get off the ground because independent candidates and partisan candidates are not similarly situated for purposes of election regulations.”). It is possible for voters to be similarly situated in certain relevant respects—and thus an equal-protection claim would lie—even if they are not similarly situated in all respects. For instance, in Obama for America, the Sixth Circuit took note of this possibility:
In many respects, absent military and overseas voters are not similarly situated to Ohio voters. Typically, their absence from the country is the factor that makes them distinct, and this is reflected in the exceptions and special accommodations afforded to these
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voters under federal and state law. With respect to in-person early voting, however, there is no relevant distinction between the two groups. 697 F.3d at 435. Here, Plaintiffs asks the Court to find that the State has treated the following types of voters impermissibly: (1) provisional and absentee voters differently than Election Day voters, because Election Day voters are not required to fill out all five fields; (2) certain early-in person absentee voters and all vote-by-mail absentee voters differently than other early in-person absentee voters, by requiring the former two groups to fill out the absentee ballot identification form; and (3) treating wrong-location/wrong-precinct voters differently than rightlocation/wrong-precinct voters by rejecting the former group’s ballots and counting the latter’s. Plaintiffs fail to show any of these groups are similarly situated and, therefore, this claim fails as a threshold matter. (Doc. 687 at ¶¶ 265-67.) First, Election Day voters are not similarly situated to either provisional or absentee voters in “all relevant respects.” Nordlinger, 505 U.S. at 10. Election Day voters show the poll worker their ID and sign the poll book in the presence of the poll worker. (Damschroder Vol. 11 at 120-21.) Vote-by-mail absentee voters, on the other hand, never interact with poll workers. Nor are provisional voters similarly situated, as the reason they are classified as provisional in the first place is that they are unable to cast a regular ballot and additional information may be needed to verify their eligibility. See Ohio Rev. Code § 3505.181(A)(1). Moreover, Election Day voters casting a regular ballot do not have the option of providing only their SSN-4 as an ID, as absentee and provisional voters do, a classification that actually cuts against Plaintiffs’ argument that provisional and absentee voters are treated disparately. (Davis Tr., Vol. 7 at 6869.)
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Nor are early-in-person voters who vote on DRE machines similarly situated to other absentee voters. Evidence at trial suggests it would be virtually impossible for someone other than the voter who filled out the absentee ballot application to vote on a DRE machine. (Test. of Susan Bloom, Tr., Vol. 1 at 269; Bucaro Tr., Vol. 6 at 67-68.) The same cannot be said for an absentee voter who does not appear in person at the Board. Although Plaintiffs may have a stronger argument that an early in-person voter who votes on a paper ballot is similarly situated to an early in-person DRE machine voter, Plaintiffs did not adduce evidence at trial to compare the circumstances of these groups of voters and thus the Court does not find that they are similarly situated.
As to wrong-location/wrong-precinct voters, when the related SEIU case was previously before the Sixth Circuit on a motion to stay the Court’s preliminary injunction, which directed the Secretary to count provisional ballots that were cast at the wrong multi-precinct polling place due to poll-worker error, the Sixth Circuit granted the Secretary’s motion for a stay. Service Emps. Int’l Union Local 1 v. Husted, 698 F.3d 341, 343 (6th Cir. 2012) (per curiam). The court found it highly likely that the Secretary would succeed on appeal and relied heavily on the fact that “[w]hile poll-worker error may contribute to the occurrence of wrong-place/wrong-precinct ballots, the burden on these voters certainly differs from the burden on right-place/wrongprecinct voters—and likely decreases—because the wrong-place/wrong-precinct voter took affirmative steps to arrive at the wrong polling location.” Id. at 344. From this ruling the Court concludes that wrong-location/wrong-precinct voters are not similarly situated to rightlocation/wrong-precinct voters. The Court ENTERS JUDGMENT FOR DEFENDANT on Plaintiffs’ arbitrary-and-disparate treatment claim.
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3. Equal Protection: Lack of Uniform Standards
Plaintiffs’ bring their next equal-protection claim, characterized as a challenge to Ohio’s lack of uniform standards, under Bush v. Gore, 531 U.S. 98 (2000). Plaintiffs allege that Boards used different standards and procedures, and arrived at different results, when determining whether to reject or count absentee and provisional ballots with a five-field error or omission in the 2014 and 2015 elections. (Doc. 687 at ¶ 256.)
In Bush, the Supreme Court, although explicitly limiting its consideration “to the present circumstances,” found that the Florida recount process lacked “adequate statewide standards for determining what is a legal vote, and practical procedures to implement them.” 531 U.S. at 10910. The standard for counting ballots in that recount, as ordered by the Florida Supreme Court, was to consider “the intent of the voter,” but the Supreme Court found fault with the “absence of specific standards to ensure [the] equal application” of this principle. Id. at 105-06.
The Bush Court clarified that its holding did not implicate “whether local entities, in the exercise of their expertise, may develop different systems for implementing elections.” Id. at 109. Instead, it suggested that “where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards,” that court’s remedy must contain “at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied.” Id. Finding a number of procedural irregularities, such as one county changing its evaluative standards for a valid ballot in the middle of the counting process, id. at 106-07, the Florida Supreme Court’s failure to specify who would recount the ballots in each county, id. at 109, and the inclusion of partial as well as full recounts in some counties, id. at 108, the United States Supreme Court found that the court-ordered recount violated Governor Bush’s equal protection rights, id. at 110.
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Although Bush was limited to its facts, the Sixth Circuit has recognized that Bush may apply to other situations where the state has failed to establish uniform standards and counties’ treatment of voters varies in unreasonable ways. See League of Women Voters of Ohio, 548 F.3d at 477-78 (holding that the plaintiffs stated a Bush v. Gore claim when they alleged that voting machines were not allocated proportionately, long wait times caused voters to leave their polling places without casting a ballot, poll workers misdirected voters to the wrong polling place, touch-screen voting machines malfunctioned, and disabled voters were turned away from voting). The Sixth Circuit also has recognized that “[c]onstitutional concerns regarding the review of provisional ballots by local boards of elections are especially great” because “the review of provisional ballots occurs after the initial count of regular ballots is known.” Hunter, 635 F.3d at 235.
Here, the Court finds that the Boards are “exercis[ing] . . . their expertise” in “develop[ing] different systems for implementing elections.” Bush, 531 U.S. at 109. The standard that allows the Board to decide by a vote of three members whether to count a missing date-of-birth field does not rise to the level of the standard-less recount in Bush. The Boards are implementing the state’s specific standards “for determining what is a legal vote,” and the Ohio system does not approach the ambiguous “intent of the voter” Florida standard. Id. at 110.
The Court ENTERS JUDGMENT FOR DEFENDANT on this claim. 4. Procedural Due Process
Plaintiffs next allege that Defendant has deprived absentee and provisional voters of notice and an opportunity to be heard when their ballots were rejected. Plaintiffs challenge several aspects of SBs 205 and 216 that are relevant to notice and an opportunity to be heard. First, as to absentee voters, Plaintiffs take issue with the fact that the Form 11-S requires voters
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to be literate and may arrive after the end of the cure period. (Doc. 687 at ¶ 248.) Second, as to provisional voters, Plaintiffs charge that due process is not satisfied because provisional voters receive no pre-deprivation process or opportunity to cure unless their error is lack of identification, and an inadequate pre-deprivation notice and opportunity to cure a missing form of identification. (Id. at ¶ 246.)
In Hunter v. Hamilton County, another Ohio provisional voting case, a court considered a claim from NEOCH, the ODP, and a judicial candidate that the Hamilton County Board of Elections violated their procedural due process rights when it rejected provisional ballots cast in the wrong precinct without providing voters with notice and an opportunity to be heard. 850 F. Supp. 2d 795, 846 (S.D. Ohio 2012). After a permanent injunction hearing, Judge Dlott entered judgment for the plaintiffs on their equal-protection claim because the Board, in determining whether provisional ballots were cast in the wrong precinct due to poll-worker error, considered evidence of the location where the ballots were cast for some, but not all, provisional ballots, thereby treating voters disparately. Id. at 847. The court ruled for the Board on the plaintiffs’ procedural due-process claim, however, explaining as follows:
This claim fails because, in the Court’s view, the harm that Plaintiffs allege is the direct result of the Ohio statutes in question, not the lack of process. Even if the Board had given provisional voters notice and an opportunity to explain the cause of their miscast ballots, Ohio law would have prevented the Board from counting those miscast ballots regardless of the explanation. Ohio law makes clear, as the Ohio Supreme Court held in Painter, that provisional ballots cast in the wrong precinct shall not be counted, even where the ballot is miscast due to poll-worker error. . . . Thus, Plaintiffs’ proposed postdeprivation remedy is inextricably intertwined with the validity of Ohio’s election laws. It would be superfluous for the Court to order the Board to provide provisional voters with notice and an opportunity to be heard if Ohio law prevents the Board from counting miscast ballots regardless of the voter’s particular circumstance Id. at 846-47 (citations and footnote omitted); see also Davis v. Robert, No. 15-cv-12076, 2016 WL 1084683, at *4 (E.D. Mich. Mar. 21, 2016) (“It is the statute . . .that has deprived him of
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access to the document he seeks. . . . [T]he lack of adequate process has caused him no harm.”) (citing Hunter, 850 F. Supp. 2d at 846-47). Similarly, here, the Court finds that Plaintiffs’ harm is caused by the portions of SBs 205 and SB 216 that impose a completion requirement for the five fields, not the lack of process given when a ballot is rejected. Accordingly, the Court ENTERS JUDGMENT FOR DEFENDANT on Plaintiffs’ procedural due-process claim.
5. Substantive Due Process Plaintiffs’ substantive due-process claim also fails. The Sixth Circuit has held that substantive due process is implicated “in the exceptional case where a state’s voting system is fundamentally unfair.” Warf v. Bd. of Elections of Green, Cnty., Ky., 619 F.3d 553, 559 (6th Cir. 2010) (finding no due-process violation when a state court voided all 542 absentee ballots cast in an election as tainted). A voting system may be “fundamentally unfair” when “poll-worker error cause[d] thousands of qualified voters to cast wrong-precinct ballots from the correct polling locations,” NEOCH, 696 F.3d at 597, and the state nevertheless “enforce[d ]its strict disqualification rules without exception, despite the systemic poll-worker error identified in this litigation and others,” id. (affirming this Court’s grant of preliminary injunction on the plaintiff’s substantive due-process claim). The evidence before the Court does not reveal that thousands of ballots have been or will be rejected due to poll-worker error or that SB 205 and SB 216 have resulted in “significant disenfranchisement and vote dilution.” Warf, 619 F.3d at 559 (citing League of Women Voters of Ohio, 548 F.3d at 478). The Court, therefore, cannot conclude that Plaintiffs have shown a “fundamentally unfair” voting system. Id. The Court ENTERS JUDGMENT FOR DEFENDANT on Plaintiffs’ substantive dueprocess claim.
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6. Race Discrimination Under the Fourteenth and Fifteenth Amendments
Plaintiffs assert that SB 205 and SB 216 violate the Fourteenth and Fifteenth Amendments because they were enacted with a discriminatory purpose. To prevail on a discriminatory intent claim, a plaintiff need not show that the discriminatory purpose was the sole purpose or even the “dominant” or “primary” one. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977). But the plaintiff must show that racial discrimination was “a motivating factor in the decision.” Id. at 265-66. The discriminatory purpose need not be “express or appear on the face of the statute.” Washington v. Davis, 426 U.S. 229, 241 (1976). Courts should inquire into both circumstantial and direct evidence of intent to discern whether an invidious discriminatory purpose was a motivating factor. Arlington Heights, 429 U.S. at 266.
In Arlington Heights, the Supreme Court laid out several evidentiary sources relevant to this inquiry: the historical background of the decision, “particularly if it reveals a series of official actions taken for invidious purposes”; the “specific sequence of events leading up [to] the challenged decision”; “[d]epartures from the normal procedural sequence” of legislative enactments; and the legislative or administrative history, “especially when there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports.” Id. at 266-68. The Supreme Court also stated that in rare cases the law’s impact, or whether it “bears more heavily on one race than another,” may be probative, but only when “a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face.” Id. at 266 (internal quotation marks omitted). Recognizing that “discriminatory intent is so difficult to prove by direct evidence, it is incumbent on a sensitive decisionmaker to analyze all of the surrounding
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facts and circumstances to see if discriminatory intent can be reasonably inferred.” Grano v. Dep’t of Dev. of Columbus, 637 F.2d 1073, 1081 n.7 (6th Cir. 1980) (citing Arlington Heights, 429 U.S. at 252).
Having examined all of the surrounding facts and circumstances to the passage of the challenged laws, the Court cannot reasonably infer discriminatory intent. Plaintiffs ask the Court to infer such intent from the lead-up to the passage of SBs 205 and 216—namely, the multitude of proposed legislation in the previous legislative session which aimed to restrict voting rights— and the legislative history and debate surrounding the passage of SBs 205 and 216. No House or Senate representatives who voted in favor of the bill testified at trial, so the Plaintiffs ask the Court to find this discriminatory intent based mostly on the testimony of Representative Kathleen Clyde and former-Senator Nina Turner, Democrats and opponents of the challenged laws.
This is not the “rare” case described in Arlington Heights, where “a clear pattern, unexplainable on grounds other than race,” requires a conclusion of discriminatory intent absent any other evidence of such intent. 429 U.S. at 266; see Gomillion v. Lightfoot, 364 U.S. 339, 341-42 (1960) (finding that plaintiff had stated a race-discrimination claim when the city of Tuskegee redrew its boundaries to remove from the city all but four or five of 400 AfricanAmerican voters while not removing a single white voter). The Court turns, therefore, to the remaining Arlington Heights factors. Although the Court agrees, based on its discussion above regarding the Senate factors, that there is a history of discrimination surrounding voting in Ohio, particularly with regard to the 2004 election, the evidence Plaintiffs presented at trial does not show that the legislature departed from its normal procedural practices in passing the challenged
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laws or that the legislative drafting history weighs in favor of a finding of discriminatory purpose.
First, the procedural lead-up to the passage of this bill was not highly unusual. Although it may have been rare for only a few supporters to testify in favor of the bills in committee, or for no data or studies to demonstrate the need for the bills, this does not counsel a finding of discriminatory intent. Likewise, the fact that Democratic amendments to the bills were defeated, although revelatory of a highly polarized and partisan legislative session, is not evidence of racial discrimination. See Moore v. Detroit Sch. Reform Bd., 293 F.3d 352, 369-70 (6th Cir. 2002) (noting that allegations of speedy passage of legislation, failure to analyze relevant information before voting on the legislation, reliance on tenuous justifications, and rejection of certain amendments “indicate a general dissatisfaction with the legislative process that preceded the enactment of the [challenged law]” but were not evidence of discriminatory intent). The timelines for debate and passage through the House of Representatives, approximately four or five months, was also not unusual.
Second, although Representative Clyde and Senator Turner testified that they and other Democrats in the legislature raised concerns that the bills would have a disproportionate impact on African-American voters, the only testimony in the record regarding comments about race by a member of the legislature is Representative Clyde’s description of Representative Huffman’s statement during committee debate, in which he asked: “[S]hould we really be making it easier for those people who take the bus after church on Sunday to vote,” which was a reference to African-American voters. (Clyde Tr., Vol. 1 at 82-83.) Given that Arlington Heights endorses the use of circumstantial as well as direct evidence, there is no bright-line rule that the record must demonstrate the racial animus of a certain number of legislators in order to justify a finding
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of discriminatory intent. See 429 U.S. at 266. But on this record, with its scarce evidence in support of the other Arlington Heights factors, the Court concludes that Representative Huffman’s discriminatory intent—while patent on its face—cannot be imputed to the majority of the legislative body, which voted for passage of the bills.
Nor does evidence of Doug Preisse’s statement and the billboard erected by a nonlegislator, both of which the Court finds reprehensible, particularly given the history of racial discrimination in Ohio, allow the Court to strike down SBs 205 and 216 based on discriminatory motives of the legislature. (See Clyde Tr., Vol. 1 at 40; Turner Tr., Vol. 6 at 142, 257.)
Make no mistake: the Court is deeply troubled by the flurry of voting-related legislation introduced during the time period in question, all of which sought to limit the precious right to the franchise in some manner, and most of which was a peripatetic solution in search of a problem. The Court agrees, moreover, that the Republican-controlled General Assembly’s frenetic pace of introducing such legislation reflects questionable motives, given the wealth of other problems facing the state which actually needed solutions. If the dog whistles in the General Assembly continue to get louder, courts considering future challenges to voting restrictions in Ohio may very well find that intentional discrimination is afoot. But when applying all of the Arlington Heights factors to the record before it today, the Court cannot infer that the General Assembly acted with racially discriminatory intent in the passage of SBs 205 and 216.
The Court ENTERS JUDGMENT FOR DEFENDANT on the intentionaldiscrimination claim.
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7. Viewpoint Discrimination Plaintiffs cast their final constitutional claim as one of voter viewpoint discrimination under the First Amendment and the Equal Protection Clause. They contend that the challenged laws intentionally discriminate against voters who support the Democratic Party, as evidenced by the intent of the legislature in enacting the laws as well as various actions and omissions of Defendant Husted including: failing to investigate discrimination against Democratic voters, ignoring objections and pleas for intervention from Democratic representatives, firing Democratic members of the Boards of Elections, and issuing directives intended to disenfranchise Democratic voters. (Doc. 687 at ¶ 277-81.) Defendant cites to Supreme Court precedent that “if a nondiscriminatory law is supported by valid neutral justifications, those justifications should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators.” Crawford, 553 U.S. at 204. But here Plaintiffs contend that the laws, although facially nondiscriminatory, were, in fact, enacted for a viewpoint-discriminatory purpose and are enforced as such, and they urge the Court to enjoin the laws in question because they burden voters based on the political party they support, which constitutes impermissible viewpoint discrimination under the First Amendment. The Supreme Court has recognized that it is constitutionally impermissible to “‘[f]enc[e] out’ from the franchise a sector of the population because of the way they may vote.” Carrington v. Rash, 380 U.S. 89, 94 (1965). In Vieth v. Jubelirer, with Justice Scalia writing for a four-judge plurality, the Supreme Court held that “neither Article I, § 2, nor the Equal Protection Clause, nor (what appellants only fleetingly invoke) Article I, § 4, provides a judicially enforceable limit on the political considerations that the States and Congress may take
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into account when districting.” 541 U.S. 267, 305 (2004). Concurring in the judgment, Justice Kennedy wrote that in his view the arguments for finding cases of partisan gerrymandering nonjusticiable “are not so compelling that they require us now to bar all future claims of injury from a partisan gerrymander.” Id. at 309 (Kennedy, J., concurring). Justice Kennedy noted that a statute which declared “All future apportionment shall be drawn so as most to burden Party X’s rights to fair and effective representation, though still in accord with one-person, one-vote principles” would undoubtedly be held unconstitutional. Id. at 312. Justice Kennedy further mused that:
The First Amendment may be the more relevant constitutional provision in future cases that allege unconstitutional partisan gerrymandering. After all, these allegations involve the First Amendment interest of not burdening or penalizing citizens because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political views. Id. at 314 (citing Elrod v. Burns, 427 U.S. 347 (1976) (plurality opinion)). If a court found that a state “did impose burdens and restrictions on groups or persons by reason of their views, there would likely be a First Amendment violation, unless the state shows some compelling interest.” Id. at 315. Justice Kennedy cautioned, however, that courts should be wary in “adopting a standard that turns on whether the partisan interests in the redistricting process were excessive. Excessiveness is not easily determined.” Id. at 316. Here, Plaintiffs essentially propose that the Court apply such a First Amendment standard, although they cite to no other court that has done so. See OOC, slip op. at 118 (noting that no courts have recognized a cause of action based on the concurrence in Vieth). They argue that there is sufficient evidence to justify the searching review required by strict scrutiny because a discriminatory purpose behind the laws belies their facial neutrality. Even if the Court adopts Plaintiffs’ standard, however, Plaintiffs have not put forth sufficient evidence of the General
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Assembly’s impermissible motive. As the Court acknowledged when entering judgment for Defendant on Plaintiffs’ claim of intentional race discrimination, the racist comments of one state legislator, coupled with the introduction of other bills limiting voting rights and a refusal to consider Democratic amendments, come just short of a finding of intentional discrimination. Therefore, even if the Court could identify a workable standard in this type of case to determine whether the legislature has engaged in viewpoint discrimination, the Court’s factual findings compel a contrary conclusion on the first-order question. Put simply, although “partisan interests may have provided one motivation for the votes of individual legislators,” Crawford, 553 U.S. at 204, there is insufficient evidence before the Court to show that the Ohio General Assembly passed these laws with any more of an impermissible objective than the Indiana legislature that passed the voter-ID statute in Crawford. The Court ENTERS JUDGMENT FOR DEFENDANT on Plaintiffs’ viewpoint-discrimination claim.
C. Voting Rights Act Claims 1. Section 2
Section 2 of the Voting Rights Act provides, in relevant part:
(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color . . . .
(b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. . . .
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The Supreme Court has instructed that the Voting Rights Act “should be interpreted in a manner that provides ‘the broadest possible scope’ in combating racial discrimination.” Chisom v. Roemer, 501 U.S. 380, 403 (1991) (quoting Allen v. State Bd. of Elections, 393 U.S. 544, 567 (1969)). After the 1982 amendments to the VRA, proof of intentional discrimination is not required for a plaintiff to prevail on a Section 2 claim. Id. at 394 n.21; Moore, 293 F.3d at 363. In vote-denial cases like this one, courts conduct a two-part analysis under the “results test” of § 10301(b). OOC, slip op. at 95; see also League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 240 (4th Cir. 2014). First, a court determines whether a practice or procedure has a disparate impact on a minority group. See Gingles, 478 U.S. at 44 (“The ‘right’ question . . . is whether ‘as a result of the challenged practice or structure plaintiffs do not have an equal opportunity to participate in the political processes and to elect candidates of their choice . . . . In order to answer this question, a court must assess the impact of the contested structure or practice on minority electoral opportunities ‘on the basis of objective factors.’”) (internal citations omitted). Second, if it finds disparate impact, the court assesses whether the “electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.” Id. at 47. In applying the results test, the Court considers “the totality of circumstances.” 52 U.S.C. § 10301(b).
Defendant argues that Plaintiffs have failed to prove that the challenged laws harm African-Americans’ right to vote, that the laws cause the right to vote to be denied, and that African-Americans lack meaningful access to the polls on account of race. (Doc. 686 at ¶ 232.) Essentially, Defendant’s first argument relates to the Court’s inquiry regarding disparate impact, and the second and third go to the Court’s assessment of whether the challenged laws interact
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with social and historical conditions in Ohio to create an inequality in the ability of AfricanAmerican voters to participate in the democratic process as compared to whites.
a. SB 205 and SB 216 Have a Disparate Impact on African-Americans The evidence shows that SB 205 and SB 216 have a disproportionate impact on AfricanAmerican voters in Ohio, creating greater risk of disenfranchisement of African-Americans than whites. The burdens imposed on voters by the five-field requirement, the prohibition on pollworker assistance, and the reduced cure period fall more heavily on African-Americans than whites. Dr. Timberlake’s data on disparities in provisional and absentee ballot usage and rejection rates reveal that higher minority population share is correlated to higher rates of absentee ballot rejection and provisional ballot usage and rejection. Although Dr. Hood, and implicitly Dr. McCarty, criticized Dr. Timberlake’s analysis for relying on county-level rather than precinct-level data, and Dr. McCarty criticized the analysis for not controlling for enough other factors that could explain the disparities, the Court concludes that since Dr. Timberlake’s multivariable regression analysis accounted for a variety of key factors besides race that were likely to explain disparities in rejection rates (including the median age, income, and educational attainment of the white voters in those counties as well as the urbanicity of the counties), Dr. Timberlake’s data yield convincing evidence that restrictions on absentee and provisional balloting leads to higher rejection rates of minority voters’ provisional and absentee ballots. In particular, as noted above in its findings of fact, the Court credits Dr. Timberlake’s findings that: (1) in the presidential election years of 2008 and 2012, where minority turnout was higher than during typical midterm elections, minorities’ absentee ballots were rejected at a higher rate than whites’; (2) in 2008, 2010, 2012, and 2014, minorities cast provisional ballots at
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a higher rate than whites;19 and (3) in 2008, 2010, and 2012, minorities had higher rates of rejection of provisional ballots than whites. The State makes much of the fact that the 2014 election did not reveal the same relationship between rates of provisional-ballot rejections and minority population share, asking the Court to draw the conclusion that the challenged laws were actually having the effect of decreasing provisional ballot rejections. But Plaintiffs presented evidence that the gubernatorial election was significantly less competitive in 2014 than in 2010, that overall turnout was lower in 2014 than 2010, and that overall provisional ballot rejections increased in 2015. It is premature, therefore, to conclude that overall provisional ballot rejection rates are decreasing or that African-American voters’ provisional ballot rejection rates are decreasing. And in presidential election years in particular, the evidence strongly suggests that provisional ballot and absentee ballot rejections fall disproportionately on African-American voters.
Defendant’s argument that Plaintiffs have failed to show harm because they cannot identify an objective benchmark against which to assess the burdens of the challenged laws on African-American voters is unpersuasive. Essentially, Defendant charges that Plaintiffs sought to use Ohio’s pre-2014 election procedures as a benchmark, which improperly grafts a retrogression analysis—the inquiry for a Section 5 claim—onto a Section 2 claim.
The “purpose of § 5 has always been to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.” Beer v. United States, 425 U.S. 130, 141 (1976). In contrast, Section 2 has a “broader mandate” of barring all states and their political subdivisions from “maintaining any voting ‘standard, practice or procedure’ that ‘results in a 19 This finding is also corroborated by studies upon which Dr. Timberlake relied that showed that African-American voters use provisional ballots at a higher rate than white voters nationwide. (See Timberlake Rebuttal Rpt., P-1195 at PTF-243.)
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denial or abridgment of the right . . . to vote on account of race or color.’” Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 479 (1997) (“Bossier I”) (quoting 52 U.S.C. § 10301(a)). The Supreme Court has held that a benchmark is nevertheless required for Section 2 claims, noting that in the context of vote-dilution cases:
It makes no sense to suggest that a voting practice “abridges” the right to vote without some baseline with which to compare the practice. In § 5 preclearance proceedings— which uniquely deal only and specifically with changes in voting procedures—the baseline is the status quo that is proposed to be changed . . . . In § 2 . . . proceedings, by contrast, which involve not only changes but (much more commonly) the status quo itself, the comparison must be made with a hypothetical alternative. Reno v. Bossier Parish Sch. Bd., 528 U.S. 320, 334 (2000) (“Bossier II”). In contrast to the Section 2 vote dilution cases such as those where the Supreme Court has addressed the benchmark requirement, however, the “hypothetical” benchmark here is more straightforward. See, e.g., Bossier II, 528 U.S. at 334; Holder v. Hall, 512 U.S. 874, 884 (1994) (plurality opinion) (“[W]ith some voting practices, there in fact may be no appropriate benchmark to determine if an existing voting practice is dilutive under § 2.”). This Court’s relevant inquiry is whether African-American voters “have less opportunity than other members of the electorate to participate in the political process.” 52 U.S.C. § 10301(b); see also OOC, slip op. at 97 (“[T]he relevant benchmark is inherently built into § 2 claims and is whether members of the minority have less opportunity than other members of the electorate to participate in the political process and elect representatives of their choice.”). The benchmark, accordingly, is simply the ability of other groups of voters to participate in the political process compared to African-Americans’ ability to do so.20 The Court concludes for the reasons stated
20 Defendant repeatedly attempts to compare Ohio’s voting practices with respect to provisional and absentee balloting to those of other states but, as the Supreme Court made clear in Gingles, a court’s Section 2 analysis is “an intensely local appraisal of the design and impact of” election administration “in the light of past and present reality, political and otherwise.” 478 U.S. at 78 (quoting White v. Regester, 412 U.S. 755, 769-70 (1973)); see also League of Women Voters of
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above that Dr. Timberlake’s multivariable regression analysis provides convincing evidence that
because of the passage of the challenged laws, African-American voters are more likely than
white voters to have their absentee or provisional ballots rejected.21
Having found that Plaintiffs have shown that SB 205 and SB 216 have a disproportionate
impact on African-Americans, the Court turns to the second part of the Section 2 results
standard.
b. SB 205 and SB 216 Combine with the Effects of Past Discrimination to Interfere with the Voting Power of African-Americans
The second part of the results test22 requires “a searching practical evaluation of the past
and present reality” and a “‘functional’ view of the political process” to determine whether the
N.C., 769 F.3d at 243 (“Section 2 . . . is local in nature.”); OOC, slip op. at 97 (considering challenged statutes “as they are now, wholly within the State of Ohio (rather than comparing Ohio across other states)”). 21 To the extent Defendant argues that past voting practices have no relevance to the Section 2 analysis, he is mistaken. On its face, Section 2 requires a broad “totality of circumstances” review. 52 U.S.C. § 10301(b). There is no doubt that to analyze the totality of the circumstances requires attention to past practices, and neither the Supreme Court nor the Sixth Circuit has held that such an inquiry is improper. See League of Women Voters of N.C., 769 F.3d at 241 (“Clearly, an eye toward past practices is part and parcel of the totality of the circumstances.”); Sanchez v. State of Colo., 97 F.3d 1303, 1325 (10th Cir. 1996) (quoting from the legislative history of the 1982 amendments to Section 2 that “[i]f [a challenged] procedure markedly departs from past practices or from practices elsewhere in the jurisdiction, that bears on the fairness of its impact”) (quoting 1982 U.S.C.C.A.N. at 207, n.117). Further, as the Fourth Circuit noted in League of Women Voters, the Supreme Court has acknowledged that some parts of the Section 2 and Section 5 inquiries “may overlap,” 769 F.3d at 241 (quoting Georgia v. Ashcroft, 539 U.S. 461, 478 (2003)). Moreover, “[b]oth Section 2 and Section 5 invite comparison by using the term ‘abridge[ ].’” Id. Compare 52 U.S.C. § 10304(a) and 52 U.S.C. § 10301(a)). 22 Courts have interpreted this second part of the test as a requirement for a “causal connection between the challenged electoral practice and the alleged discrimination that results in a denial or abridgement of the right to vote.” Ortiz v. City of Phila. Office of City Comm’rs Voter Registration Div., 28 F.3d 306, 310 (3d Cir. 1994); see also Gingles, 478 U.S. at 47 (“The essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.”) (emphasis added); Wesley v. Collins, 791 F.2d 1255, 1260-61 (6th Cir. 1986) (“[A] showing of disproportionate racial impact alone does not establish a per se violation of the Voting Rights Act. Rather, such a showing merely directs the court’s inquiry into the interaction of the challenged legislation with those historical, social and
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challenged laws diminish voting opportunities for African-American Ohioans. Gingles, 478 U.S. at 45. The Senate Judiciary Report accompanying the 1982 bill that amended Section 2 describes the “typical factors” that may be probative of a Section 2 violation, which the Supreme Court adopted in Gingles, 478 U.S. at 36.
The Gingles/Senate factors include: (1) a history of official discrimination that affected the right of members of a minority group to register, vote, or otherwise participate in the democratic process; (2) the extent to which voting is racially polarized; (3) the extent to which the state has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination; (4) denial of access to a candidate slating process; (5) the extent to which members of the minority group bear the effects of discrimination in areas such as education, employment, and health, which hinder their ability to participate in the political process; (6) whether political campaigns have been characterized by overt or subtle racial appeals; (7) the extent to which members of the minority group have been elected to public office; (8) whether there is significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group; and (9) whether the policy underlying the state’s use of the voting qualification, prerequisite to voting, or practice or procedure is tenuous. Id. at 36-37. The plaintiff need not prove “any particular number of factors . . . [nor] that a majority of them point one way or the other.” Id. at 45 (citation and internal quotation marks omitted).
political factors generally probative of dilution.”) (internal quotation marks and citation omitted); Irby v. Va. State Bd. of Elections, 889 F.2d 1352, 1358-59 (4th Cir. 1989) (finding no causal link between a system of appointing school board members and African-American underrepresentation because there was evidence that African-American residents were not seeking school board seats in numbers commensurate with their share of the population).
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Although the Senate Report indicated that “the enumerated factors will often be pertinent to certain types of § 2 violations, particularly to vote dilution claims,” and the claim at issue in Gingles itself was a vote-dilution claim, neither the Report nor the Gingles Court suggested that the factors should be considered only in vote-dilution cases.23 See Gingles, 478 U.S. at 45. Several circuits have expressly adopted the Senate factors to analyze vote-denial claims. See, e.g., League of Women Voters of N.C., 769 F.3d at 239-40; Johnson v. Governor of State of Fla., 405 F.3d 1214, 1227 n.26 (11th Cir. 2005) (en banc); Smith v. Salt River Project Agric. Improvement & Power Dist., 109 F.3d 586, 596 (9th Cir. 1997). Moreover, “the principles that make vote dilution objectionable under the Voting Rights Act logically extend to vote denial” and “[v]ote denial is simply a more extreme form of the same pernicious violation” of vote dilution. League of Women Voters of N.C., 769 F.3d at 239.
The Court finds that all the Senate factors except the fourth weigh in favor of a finding that SBs 205 and 216 interact with social and historical conditions to decrease AfricanAmericans’ access to the electoral process.
Factor One: History of Official Discrimination. The evidence at trial showed that Ohio has a long history of official discrimination against African-American voters, as another court in this district recently concluded. See OOC, slip op. at 102 (“Plaintiffs have provided evidence that Ohio had facially discriminatory voting laws between 1802 and 1923.”). Also relevant here, however, is recent discrimination against African-American voters, including the unequal allocation of voting machines in the 2004 election that led to hours-long waits for voters in predominantly African-American urban neighborhoods, as well as repeated attempts by the General Assembly—some of which passed, others that did not or were blocked by the courts—to 23 In their proposed findings of fact and conclusions of law, Defendant obliquely suggests that the Senate factors are not useful in the vote-denial, as opposed to the vote-dilution, context and thus the Court has chosen to address this argument. (Doc. 686 at ¶ 237.)
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roll back election administration changes made after 2004 that expanded voting opportunities. See, e.g., Obama for Am., 697 F.3d at 425; NAACP v. Husted, 43 F. Supp. 3d 808 (S.D. Ohio 2014), vacated by 2014 WL 10384647 (6th Cir. Oct. 1, 2014). (Clyde Tr. Vol. 1 at 55, 57, 6061.) This recent onslaught of attempts to limit voter registration and turnout, coupled with the numerous earlier laws on the books that Ohio used to disenfranchise African-Americans, suggests that the disparate impact is linked to social and historical conditions of discrimination against African-American voters.
Factor Two: Racially Polarized Voting. African-Americans tend to vote overwhelmingly for Democratic candidates and the majority of whites in most parts of the state vote for Republicans. This pattern holds true across different races and election cycles and indicates stark polarization. See also NAACP, 43 F. Supp. 3d at 849 (noting the “polarized nature of recent elections in Ohio”); United States v. City of Euclid, 580 F. Supp. 2d 584, 607 (N.D. Ohio 2008) (finding that the City of Euclid had a pattern of racially polarized voting where “racial bloc voting occurred in seven of the eight elections since 1995 involving African-American candidates”).
Factor Three: Voting Practices that Enhance the Opportunity for Discrimination. Like the first factor, this factor weighs in favor of a finding of discriminatory result. As noted above, of particular concern to the Court is that after the expansion of early voting opportunities following the disastrous 2004 election—which was plagued by long lines in predominantly African-American precincts—the Ohio General Assembly has moved so doggedly to roll back the expansion of the franchise. Indeed, two others courts in this district have explicitly found that “minority voters are disproportionately affected by the elimination of those early voting days.” Obama for Am. v. Husted, 888 F. Supp. 2d 897, 906-07 (S.D. Ohio 2012) (noting that the
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state had submitted no studies or evidence to counter plaintiffs’ argument in this regard); see also OOC, slip op. at 98.
Factor Five: Effects of Discrimination in Education, Employment, and Health on Political Participation. As discussed at length above, African-Americans have suffered discrimination in housing, education, and health and suffer from higher poverty rates, acute residential segregation, and lower educational attainment. These socioeconomic disparities have undoubtedly hindered their ability to participate in the political process. Inflexible hourly-wage jobs, health problems, and limited access to transportation also make it logistically more difficult to show up to vote. See OOC, slip op. at 104 (“[African Americans] are more likely to be transient than whites and are more likely than whites to rely on public transportation. The Court finds this discrimination hinders African Americans’ ability to participate effectively in the political process.”). Lower educational attainment also poses challenges in navigating the registration and voting process. See City of Euclid, 580 F. Supp. 2d at 609 (“[T]he social science literature on voter participation makes clear that educational achievement is strongly and directly correlated with voter registration and turnout.”). This factor weighs strongly in favor of a finding of discriminatory results.
Factor Six: Overt or Subtle Racial Appeals in Campaigns. From an email from a top Republican Party official denigrating the “urban—read African-American—voter turnout machine” to racist appeals like the “Obama phone lady” ad, Ohio has seen both overt and subtle racial appeals in campaigns over the last several years. Moreover, the targeting of minority communities for anti-voter fraud efforts, including with billboards, is an indication that voter suppression tactics have not disappeared but are now merely cloaked in ostensibly race-neutral language. Old dogs, it seems, can learn new tricks.
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Factor Seven: Proportional Representation. Although African-American candidates have won elected office in recent years at the local level (and in Ohio’s delegation to the United States House of Representatives) in numbers roughly proportional to their percentage of the state’s population, they have not enjoyed similar success at the state level or in districts where the electorate is predominantly white. Due to the lack of representation on the statewide level, this factor weighs somewhat in favor of finding a discriminatory result.
Factor Eight: Lack of Legislative Responsiveness to Minority Needs. State elected officials have often overlooked the needs of minority constituents. The Court finds that this factor weighs in favor of finding a discriminatory result because the state government has repeatedly and vigorously taken action to roll back the much-needed post-2004 voting reforms that led to an increase in African-American turnout rates, and because the state has also shown a lack of interest in intervention to address many of the longstanding, entrenched problems that plague Ohio’s minority communities, including educational inequality and segregation, as well as poverty, infant mortality, and other negative health and economic outcomes. Federal or court intervention has often been required to address these problems.
Factor Nine: Tenuousness. Although the State’s purported rationale for the challenged laws is to improve election administration, the Court finds that this rationale is weak. As discussed above, improving election administration and making it easier for Boards to identify voters does not justify throwing out the ballots of voters whom the Boards can and have identified. And given Senator Seitz’s statement that he hoped SB 216 would help “ratchet back” the post-2004 reforms that expanded electoral opportunities for Ohio voters, especially AfricanAmerican voters (see Timberlake Rpt., P-1194 at PTF-204), the Court finds that the State’s justifications are tenuous.
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Defendant offers little response to Plaintiffs’ evidence regarding the Senate factors. He does contend, however, that Plaintiffs cannot show that African-American voters lack meaningful access to the polls because voter registration and turnout numbers, as introduced through the testimony of Dr. Hood, show that African-American and white voters are currently on equal footing with regard to these important metrics. According to Defendant, then, no matter what historical and social conditions exist, it is impossible to conclude that the challenged laws deny African-Americans the opportunity to participate in the electoral process any less than whites. But this is both an overbroad and under-broad interpretation of the factors. Registration and turnout numbers in presidential election years do not tell the entire story of a group’s access to the polls. Additionally, the purpose of the Senate factors is to examine the context of “social and historical conditions” to determine whether they interact with the disparate impact the Court has identified, not to consider turnout rates in isolation. It may be useful to consider turnout and registration rates as one component of the “functional view of the political process.” Gingles, 478 U.S. at 45 (internal quotation marks omitted). But other factors enter the Court’s consideration when looking at these turnout and registration numbers in context, such as the opportunity to elect (and re-elect) the nation’s first African-American President, which may have had a positive effect on registration and turnout numbers among African-American voters in 2008 and 2012.24 Moreover, as Dr. McCarty acknowledged at trial, although turnout of voters from all demographic groups is lower in midterm elections than presidential elections, AfricanAmerican turnout drops more than white turnout in midterm elections. (McCarty Tr., Vol. 8 at 62.)
24 See Veasey v. Perry, 71 F. Supp. 3d 627, 655 (S.D. Tex. 2014), vacated in part on other grounds by Veasey v. Abbott, 796 F.3d 487 (5th Cir. 2015), reh’g en banc granted, 815 F.3d 958 (5th Cir. 2016) (noting that Dr. Hood testified in that case that “he linked the 2008 increased voter turnout to the unprecedented Obama campaign”).
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Because other factors likely had an effect on turnout and registration numbers in the 2008 and 2012 elections, and because other evidence regarding the Senate factors weighs strongly in favor of a finding of discriminatory result, the Court concludes that the challenged laws interact with the effects of discrimination against minority voters to create inequality in the electoral opportunities enjoyed by African-American voters as compared to white voters. Gingles, 478 U.S. at 47. When considering the relevant “social and historical conditions” in Ohio, id., the Court finds that this case is a classic example of a Section 2 vote denial claim, akin to the hypothetical that Justice Scalia laid out in Chisom:
If, for example, a county permitted voter registration for only three hours one day a week, and that made it more difficult for blacks to register than whites, blacks would have less opportunity “to participate in the political process” than whites, and [Section] 2 would therefore be violated . . . . 501 U.S. at 408 (emphasis in original); see also League of Women Voters of N.C., 769 F.3d at 246. The Court finds that the Calculus of Voting, as described by Dr. Timberlake, explains the interaction between the challenged laws and the effects of discrimination against AfricanAmericans. As Dr. Timberlake stated, voters must understand the rules that they must follow to register and vote successfully, they must have the time available to register and vote, either in person or by absentee ballot, and in many cases they must have the financial wherewithal to go to the polls. Because of these resource requirements, poor, uneducated, and minority voters are most at risk of not having the capacity to cast ballots. (Timberlake Rpt., P-1194 at PTF-206.) Evidence of the fifth Senate factor shows that African-Americans are less likely to own a car or have access to child care, more likely to be employed in hourly-wage, inflexible jobs, and more likely to suffer health problems. (Id. at 168, 179, 185, 188.) African-Americans also move more frequently than whites, and such a move requires a change in voter-registration address under Ohio law. (Id. at 173.) Finally, African-Americans have lower levels of educational
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attainment than whites, and low literacy is correlated to substandard educational opportunities and attainment. (Id. at 183-85; Timberlake Tr., Vol. 5 at 73.)
The Court agrees with Dr. Timberlake that these inequalities, rooted in historical discrimination against African-Americans, have “significant and far-reaching” effects with “specific and direct consequences for voting.” (Timberlake Rpt., P-1195 at PTF-187.) Because low literacy levels are also correlated with substandard education (Timberlake Tr., Vol. 5 at 73), and the Court has credited Dr. Timberlake’s findings that African-Americans suffer from lower educational attainment than whites in Ohio, the Court concludes that African-Americans would also suffer from higher costs associated with the five-field requirement and the prohibition on poll-worker assistance because they would face disproportionately more challenges filling out the forms. Because African-Americans move more frequently than whites, they may be more likely to be forced to vote provisionally. (Id. at 67-68; see also Hood Tr., Vol. 10 at 121, 124.) They are also more likely to be homeless. (Davis Tr., Vol. 4 at 186.) And because they are more likely to have inflexible schedules or lack access to a car, they are more likely to be burdened by a shorter cure period for absentee and provisional ballots. (Timberlake Tr., Vol. 5 at 61-62.) All of these effects of discrimination against African-Americans combine to create an inequality in their opportunities to participate in the political process. Gingles, 478 U.S. at 47.
The Ohio General Assembly took action after the disastrous 2004 election to expand voters’ access to absentee and provisional balloting, and the rollback of these improvements will disproportionately harm African-American voters. Due to the General Assembly’s retrenchment and the social and historical conditions affecting African-American Ohioans, SBs 205 and 216 have a discriminatory impact on African-Americans.
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SB 205 and SB 216 violate Section 2 of the Voting Rights Act. The Court ENTERS JUDGMENT FOR PLAINTIFFS on their Section 2 claim.
2. Materiality Provision Section 1971 of the Voting Rights Act provides that no person acting under color of law shall “deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election.” 52 U.S.C. § 10101(a)(2)(B). In McKay v. Thompson, the Sixth Circuit held that Section 1971 is enforceable only by the Attorney General, not by private citizens. 226 F.3d 752, 756 (6th Cir. 2000). In so stating, the Sixth Circuit cited to the section of the statute that provides that when any person is deprived of a right or privilege to include § 10101(a)(2)(B), “the Attorney General may institute for the United States, or in the name of the United States, a civil action . . . .” 52 U.S.C. § 10101(c). The only other authority the court cited was a case from the Eastern District of Michigan holding that there was no private right of action under the materiality provision. See Willing v. Lake Orion Cmty. Sch. Bd. of Trs., 924 F. Supp. 815, 820 (E.D. Mich. 1996). The Sixth Circuit offered no explanation for why § 10101(c), which allows for an action by the Attorney General, necessarily bars a private right of action. The Eleventh Circuit has subsequently examined this issue in depth and found that a private right of action does exist, reasoning that the Supreme Court has found that other sections of the Voting Rights Act, 42 U.S.C. §§ 1973c and 1973h, could be enforced by a private right of action, even though those sections also explicitly provide for enforcement by the Attorney General but not by individuals. Schwier v. Cox, 340 F.3d 1284, 1294-95 (11th Cir. 2003). The Eleventh Circuit also relied on legislative history during the debate over whether to add the
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provision giving the Attorney General the power to bring a civil suit, before which time individual plaintiffs could and did enforce the provisions of Section 1971 under Section 1983, namely that the House Judiciary Committee stated that the bill’s purpose was “to provide means of further securing and protecting the civil rights of persons.” Id. at 1295.
Plaintiffs have indicated that they seek to challenge the holding of McKay on appeal, but regardless of the thorough reasoning in Schwier, this Court remains bound by McKay and finds that Plaintiffs lack standing to bring a claim under the materiality provision of the VRA. The Court ENTERS JUDGMENT FOR DEFENDANT on this claim.
3. Literacy Test Section 1973aa of the Voting Rights Act provides that no citizen shall be denied the right to vote “because of his failure to comply with any test or device.” 52 U.S.C. § 10501(a). The statute defines “test or device” as: any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class. Id. § 10501(b). As a threshold matter, Defendant contends that because the Sixth Circuit has found that Congress did not create a private right of action under Section 1971 of the VRA, see McKay, 226 F.3d at 756, an issue on which there is a circuit split, see Schwier, 340 F.3d at 1296, there is likewise no private right of action under Section 1973aa. Defendant points to 52 U.S.C. § 10504, which provides that “[w]henever the Attorney General has reason to believe that a State or political subdivision . . . has enacted or is seeking to administer any test or device as a prerequisitive to voting . . . he may institute for the United States, or in the name of the United
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States, an action in a district court of the United States . . . .” This section, the Secretary asserts, closely mirrors the language of the statute that the Sixth Circuit held to prohibit a private right of action to enforce the materiality provision of the VRA.
But the Court has found no case, in the Sixth Circuit or elsewhere, squarely holding that there is no private right of action under Section 1973aa, and numerous courts have found standing under this section of the VRA either explicitly or implicitly. See, e.g., Greater Birmingham Ministries v. State, No. 2:15-cv-2193, 2016 WL 627709, at *7 (N.D. Ala. Feb. 17, 2016); Diaz v. Cobb, 435 F. Supp. 2d 1206, 1215 (S.D. Fla. 2006). But see Jennerjahn v. City of Los Angeles, No. 15-cv-263, 2015 WL 5138671, at *5 (C.D. Cal. July 27, 2015) (dismissing complaint for failure to state a claim but also stating that “[Plaintiff] should consider whether the ordinance falls within the statutory definition of a ‘test or device’ and whether he has authority to sue for any such violation”).
Further, the Supreme Court has read an implied private right of action into other sections of the VRA, including the prohibition against poll taxes under 52 U.S.C. § 10306, see Morse v. Republican Party of Va., 517 U.S. 186, 233-34 (1996) (plurality opinion), and id. at 240 (Breyer, J., concurring) (agreeing with plurality opinion that a private right of action lies under § 10306), and the provision allowing for declaratory judgments that a new state enactment is subject to the preclearance requirements of Section 5 of the Act under 52 U.S.C. § 10304, see Allen v. State Bd. of Elections, 393 U.S. 544, 560 (1969). In light of these sections of the VRA, which contain similar language empowering the Attorney General to bring suit, the Court concludes that a private right of action also lies under Section 1973aa, and Plaintiffs thus have standing to bring their literacy-test claim.
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That said, the Court concludes that the challenged laws do not violate Section 1973aa of the VRA. Requiring voters to fill out absentee and provisional ballot forms with their birth date and address does not constitute a requirement to “comply with [a] test or device.” 52 U.S.C. § 10501(a). Although Plaintiffs object that filling out the form requires illiterate or semi-literate voters to demonstrate “the ability to read, write, understand, or interpret any matter,” id. § 10501(b), other plaintiffs have used the statute to vindicate their rights when required to read very complex forms or forms written only in a language they do not speak. See, e.g., Puerto Rican Org. for Political Action v. Kusper, 490 F.2d 575, 580 (7th Cir. 1973) (upholding a preliminary injunction requiring election commissioners to provide voting assistance in Spanish to Spanish-speaking voters).
Moreover, although the Court has discussed the difficulties homeless and illiterate voters face in filling out forms in the context of the Anderson-Burdick burden analysis, the Court is not persuaded that a plaintiff can prevail on a VRA literacy-test claim when a state statute explicitly provides for assistance to illiterate voters, as the Ohio Revised Code does. See Ohio Rev. Code § 3505.24; Ohio Rev. Code § 3505.181(F). See also Diaz, 435 F. Supp. 2d at 1215 (holding that a requirement that voters check a box reading “I affirm that I have not been adjudicated mentally incapacitated with respect to voting or, if I have, my competency has been restored,” did not violate Section 1973aa because “applicants are free to request and receive (and others free to offer and provide) assistance in completing the application”). Cf. United States v. Louisiana, 265 F. Supp. 703, 708 (E.D. La. 1966) (invalidating a state law prohibiting illiterate voters from receiving assistance at the polls); United States v. Mississippi, 256 F. Supp. 344, 348 (S.D. Miss. 1966) (requiring state to provide assistance to illiterate voters).
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Although Plaintiffs point to testimony from the House Report on the VRA, they offer no response to Defendant’s argument that literacy is not a requirement of the challenged laws because Ohio law allows for assistance to illiterate or blind voters. Because Ohio law so allows, Plaintiffs’ claim must fail. The Court ENTERS JUDGMENT FOR DEFENDANT on the Section 1973aa claim.
V. CONCLUSION The Court enters JUDGMENT for Plaintiffs on their Fourteenth Amendment undueburden claim and Section 2 VRA claim. The Court enters JUDGMENT for Defendant on all other claims. Accordingly, the Court PERMANENTLY ENJOINS the enforcement of the amendments from SB 205 and SB 216 to the Ohio Revised Code as follows: Ohio Revised Code §§ 3509.06 and 3509.07 are enjoined to the extent they require full and accurate completion of absentee-ballot identification envelopes before an otherwise qualified elector’s ballot may be counted; Ohio Revised Code §§ 3509.06 and 3509.07 are enjoined to the extent they provide for only seven days for voters to correct absentee-ballot identification envelopes, and the ten-day period provided by Secretary of State directive is restored; Ohio Revised Code §§ 3505.181, 3505.182, and 3505.183 are enjoined to the extent they require full and accurate completion of provisional-ballot affirmation forms, and require a printed name, before an otherwise qualified elector’s ballot may be counted; Ohio Revised Code §§ 3505.181, 3505.182, and 3505.183 are enjoined to the extent they provide for only seven days for voters to correct provisional-ballot affirmation forms rather than ten days;
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Deborah S. Hunt Clerk

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

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: September 13, 2016

Mr. Stephen P. Carney Mr. Michael Jason Hendershot Mr. Eric E. Murphy Ms. Ryan Lynn Richardson Office of the Attorney General of Ohio 30 E. Broad Street, 17th Floor Columbus, OH 43215
Mr. Michael Anthony Carvin Mr. Anthony John Dick Jones Day 51 Louisiana Avenue, N.W. Washington, DC 20001
Mr. Subodh Chandra 1265 W. Sixth Street, Suite 400 Cleveland, OH 44113
Mr. Derek S. Clinger Mr. John Corey Colombo McTigue & McGinnis 545 E. Town Street Columbus, OH 43215
Ms. Ana Elise Perez Crawford Ms. Caroline H. Gentry Porter, Wright, Morris & Arthur 1 S. Main Street, Suite 1600 Dayton, OH 45402
Ms. Sandhya Gupta 1265 W. Sixth Street, Suite 400 Cleveland, OH 44113

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Mr. Zachery P. Keller Office of the Attorney General Education Section 30 E. Broad Street, 16th Floor Columbus, OH 43215
Mr. Donald J. McTigue McTigue & McGinnis 545 E. Town Street Columbus, OH 43215
Mr. Chad A. Readler Jones Day 325 John H. McConnell Boulevard, Suite 600 Columbus, OH 43215
Mr. Stephen Alexander Vaden Jones Day 51 Louisiana Avenue, N.W. Washington, DC 20001
Re: Case Nos. 16-3603/3691, The Northeast Ohio Coalition, et al v. Jon Husted, et al Originating Case No. : 2:06-cv-00896
Dear Counsel,
The court today announced its decision in the above-styled cases.
Enclosed is a copy of the court's opinion together with the judgment which has been entered in conformity with Rule 36, Federal Rules of Appellate Procedure.
Yours very truly,
Deborah S. Hunt, Clerk

cc: Mr. Richard W. Nagel Enclosures Mandate to issue.

Cathryn Lovely Deputy Clerk

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RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 16a0231p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________

NORTHEAST OHIO COALITION FOR THE HOMELESS; ┐

COLUMBUS COALITION FOR THE HOMELESS; OHIO │

DEMOCRATIC PARTY,

│

v.

Plaintiffs-Appellees/Cross-Appellants,

│
││>

│

│

JON HUSTED, in his official capacity as Secretary of │

the State of Ohio,

│

Defendant-Appellant/Cross-Appellee, │ │

│

STATE OF OHIO,

│

Intervenor-Appellant/Cross-Appellee. │

┘

Nos. 16-3603/3691

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 2:06-cv-00896—Algenon L. Marbley, District Judge.

Argued: August 4, 2016

Decided and Filed: September 13, 2016

Before: KEITH, BOGGS, and ROGERS, Circuit Judges. _________________

COUNSEL
ARGUED: Stephen P. Carney, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellants/Cross-Appellees. Subodh Chandra, THE CHANDRA LAW FIRM, LLC, Cleveland, Ohio, for Appellees/Cross-Appellants. ON BRIEF: Stephen P. Carney, Eric E. Murphy, Michael J. Hendershot, Ryan L. Richardson, Zachery P. Keller, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellants/Cross-Appellees. Subodh Chandra, Sandhya Gupta, THE CHANDRA LAW FIRM, LLC, Cleveland, Ohio, Caroline H. Gentry, Ana P. Crawford, PORTER, WRIGHT, MORRIS & ARTHUS LLP, Dayton, Ohio, Donald J. McTigue, Jr. Corey Colombo, MCTIGUE MCGINNIS & COLOMBO, Columbus, Ohio, Donald J. McTigue, Jr. Corey Colombo, Derek S. Clinger, MCTIGUE & COLOMBO

1

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LLC, Columbus, Ohio, for Appellees/Cross-Appellants. Chad A. Readler, JONES DAY, Columbus, Ohio, Michael A. Carvin, Anthony J. Dick, Stephen A. Vaden, JONES DAY, Washington, D.C., for Amicus Curiae.
BOGGS, J., delivered the opinion of the court in which ROGERS, J., joined. KEITH, J. (pp. 31–68), delivered a separate dissenting opinion.
_________________
OPINION _________________
BOGGS, Circuit Judge. In 2014, Ohio enacted Senate Bills 205 and 216. Among other changes to Ohio election law, they (1) required county boards of elections to reject the ballots of absentee voters and provisional voters whose identification envelopes or affirmation forms, respectively, contain an address or birthdate that does not perfectly match voting records; (2) reduced the number of post-election days for absentee voters to cure identification-envelope errors, and provisional voters to present valid identification, from ten to seven; and (3) limited the ways in which poll workers can assist in-person voters. The district court held that all three provisions impose an undue burden on the right to vote and disparately impact minority voters.
We affirm the plaintiffs’ undue-burden claim only as it relates to the requirement imposed by Senate Bill 205 that in-person and mail-in absentee voters complete the address and birthdate fields on the identification envelope with technical precision. We reverse the district court’s finding that the other provisions create an undue burden. We also reverse the district court’s finding that the provisions disparately impact minority voters. We affirm the district court’s other holdings.
I. Background
Ohioans need not queue on Election Day to exercise the right to vote. The State accepts absentee ballots by mail and, on designated early-voting days, in person. Ohio Rev. Code §§ 3509.01(B), 3509.05(A). A voter who declares that he or she is registered but whose name does not appear on a precinct’s list of eligible voters can cast an in-person provisional ballot on either an early-voting day or Election Day. Id. § 3505.181(A)(1), (B)(2).

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In 2014, the Ohio General Assembly enacted Senate Bills 205 (SB 205) and 216 (SB 216), amending state election provisions that govern absentee and provisional voting. The laws have been in effect since early June 2014.
A. SB 205
Any eligible voter can apply for an absentee ballot. Ohio Rev. Code § 3509.03. Completing the application involves providing a name, signature, registration address, date of birth, and a form of identification. Id. § 3509.03(A)–(E). Acceptable identification includes: a driver’s license number; the last four digits of a Social Security number; or a copy of a valid photo ID, valid military ID, current utility bill, bank statement, government check, paycheck, or other government document (excluding a registration notice) showing the voter’s name and address. Id. § 3509.03(E). The same are acceptable forms of identification when casting an absentee ballot. Id. § 3509.05(A). Applicants can request and receive an absentee ballot through the mail by providing a mailing address. Id. § 3509.03(I).
When voting, mail-in and some in-person absentee voters must complete an “identification envelope” along with their ballots.1 The identification envelope contains fields for the voter’s name, signature, voting residence, and birthdate. The county boards of elections may preprint the voter’s name and address on the identification envelopes of mail-in voters. Id. § 3509.04(B). The Secretary of State’s 2015 election manual “instruct[s]” the boards to do so in order to “eliminate any chance that a voter’s absentee ballot may be rejected for the sole reason” that the voter failed to complete those fields. Before SB 205 went into effect, absentee ballots could be rejected if the identification envelope “accompanying an absent voter’s ballot or absent voter’s presidential ballot [was] insufficient,” if the signatures “d[id] not correspond with the person’s registration signature,” or if the voter failed to provide identification. Ohio Rev. Code § 3509.07 (2013). In 2010, the Secretary circulated a directive to the county boards of elections stating that the identification envelope must include a proper voter name and signature for the corresponding ballot to be counted.

1Some Ohio counties give early in-person voters the option to cast their ballots on a direct-recording electronic-voting machine. Those who do so are not also required to complete the identification envelope.

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SB 205 added two fields to that list. It specifies that an identification envelope is “incomplete” without accurately filled birthdate2 and address fields. Ohio Rev. Code § 3509.06(D)(3). An “incomplete” identification envelope results in the ballot’s rejection unless the voter “provide[s] the necessary information to the board of elections in writing and on a form prescribed by the secretary of state.” Id. § 3509.06(D)(3)(b).
SB 205 made two other changes to Ohio election law that are at issue. When an absentee ballot contains an error, the board of elections gives the voter notice of the additional information required for the ballot to be counted. SB 205 reduced the window for voters to submit corrections from the ten days after Election Day to the seven days after Election Day. See ibid. In addition, SB 205 prevents election officials from providing “assistance” to voters with the exceptions of voters who “[d]eclare[]” that they are “unable to mark” their ballot due to “blindness, disability, or illiteracy.” Id. § 3505.24.
B. SB 216
Provisional voters must complete a “provisional ballot affirmation” form. Ohio Rev. Code § 3505.182. Before the implementation of SB 216, a provisional ballot was counted if the voter presented valid identification3 and the affirmation form included the voter’s name, signature, and a statement of eligibility. Ohio Rev. Code § 3505.183(B)(1) (2013). The back of the form contained a separate registration application. Provisional voters whose ballots were rejected for failure to register but who completed the application became registered for the next election.
SB 216 added birthdate4 and address to the list of affirmation-form fields that provisional voters must accurately complete. Ohio Rev. Code § 3505.183(B)(1)(a). The affirmation form

2The birthdate requirement is satisfied if the voter provides a month and day of birth that match the month and day in the registration database, if the birthdate in the registration database is January 1, 1800, or if a majority of the four-member elections board find that the voter has met the name, address, signature, and identification requirements. Ohio Rev. Code § 3509.06(D)(3)(a)(iii).
3The identification requirement for provisional voters is similar to that for absentee voters. See Ohio Rev. Code § 3505.18(A).
4The birthdate requirement for provisional voters has similar exceptions to those for the requirement for absentee voters. See Ohio Rev. Code § 3505.183(B)(3)(e).

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now doubles as a registration application, applicable to provisional voters whose ballots are rejected for failure to register. Id. § 3505.182(F). The bill also added the word “printed” before “name” in the list of affirmation-form requirements. Compare id. § 3505.183(B)(1)(a), with Ohio Rev. Code § 3505.183(B)(1)(a) (2013). This appears to have clarified, rather than modified, existing law. Between the 2008, 2010, and 2012 general elections, most counties rejected provisional ballots for failure to include a “printed” name. Furthermore, a 2012 directive from the Secretary instructed elections boards to reject provisional ballots whose affirmation statements lacked “the voter’s printed name.”
A provisional voter without valid identification may return to the board of elections to cure an otherwise complete ballot by providing a driver’s license number, state identification card number, the last four digits of the individual’s Social Security number, a photo or military ID, or a copy of a current utility bill, bank statement, government check, paycheck, or other government document (excluding a registration notice) showing the voter’s name and address. Ohio Rev. Code § 3505.181(B)(7)(a). SB 216 reduced the period for doing so from the ten days after Election Day to the seven days after Election Day. Compare Ohio Rev. Code § 3505.181(B)(8) (2013), with Ohio Rev. Code § 3505.181(B)(7).
C. Procedural History
In 2006, the Northeast Ohio Coalition for the Homeless (NEOCH) and the Service Employees International Union sued the Secretary to enjoin the enforcement of voteridentification and provisional-ballot laws.5 Although perhaps rich source material for a prickly civil-procedure hypothetical, the case’s many twists and turns are unnecessary to chronicle here. Suffice it to say, litigation was still proceeding in 2010 when the parties entered a consent decree.
Ohio’s eighty-eight counties have four-person boards responsible for administrating local elections. The 2010 decree required the Secretary to inform elections boards to count the provisional ballots of registered voters whose affirmation forms included an accurate name,
5Within days of the plaintiffs’ filing suit, Ohio intervened as a defendant. See Fed. R. Civ. P. 24(b). With the parties’ consent, the Ohio Democratic Party (ODP) intervened as a plaintiff in 2008. Soon after, the Columbus Coalition for the Homeless (CCH) was added as a plaintiff.

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verified signature, and the last four digits of the voter’s Social Security number. It also listed grounds on which provisional ballots could not be rejected, including failure to “provide a date of birth” or “address . . . tied to a house, apartment or other dwelling [if] the voter indicated that he or she resides at a non-building location.”6 The Secretary was required to give the court notice of changes to the law that would “supersede” the decree.
The decree was in effect for the 2010 and 2012 elections. Although it was originally set to expire on June 30, 2013, the court, on the plaintiffs’ motion, extended it through the end of 2016. In September 2014, the Secretary informed the court that SB 216’s rejection requirement for imperfect birthdate and address fields, and the three-day reduction in the cure-period, “automatically amended” the decree.
The plaintiffs moved for leave to file a supplemental complaint. See Fed. R. Civ. P. 15(d). They petitioned the court to permanently enjoin the Secretary from implementing portions of SB 205 and SB 216. The defendants opposed. In August 2015, the court granted the motion because SB 216 “ero[ded]” the consent decree’s protections and because both SB 205 and SB 216 related to the original complaint, which challenged Ohio’s voter-identification requirements more generally.
The supplemental complaint asserts ten counts: a viewpoint-discrimination claim under the First and Fourteenth Amendments; claims under the Fourteenth Amendment’s Due Process Clause of a fundamentally unfair voting system and violation of procedural due process; claims under the Fourteenth Amendment’s Equal Protection Clause of an undue burden, lack of uniform standards, and arbitrary and disparate treatment; a claim of intentional discrimination in violation of the Fourteenth and Fifteenth Amendments; and literacy-test, immaterial-error, and vote-denial claims under the Voting Rights Act (VRA).
The court presided over a bench trial in March 2016. Over the course of twelve days, it heard the testimony of more than twenty board of elections officials from different counties, two
6Ohio law requires elections boards to “examine any additional information” in addition to “determin[ing] whether the individual who cast the provisional ballot is registered and eligible to vote in the applicable election” in order to “determine whether a provisional ballot is valid and entitled to be counted.” Ohio Rev. Code. § 3505.183(B)(1)–(2). The original complaint alleged that elections boards would not “apply the same standards when . . . determining whether provisional ballots are eligible to be counted.”

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members of the Ohio General Assembly, the Assistant Secretary of State (who also serves as “head of elections”), and two members of the Ohio Association of Election Officials (OAEO), which includes members of the elections boards of every Ohio county and has equal representation from the two major parties. In addition, the record includes declarations of absentee and provisional voters whose ballots were rejected for birthdate and address errors. Several, for example, wrote the current date instead of their birthdates. One transposed the location of the digits indicating the month and day of his birth despite specific language on the form to the contrary because he grew up in a country that follows the date sequence used elsewhere in the world.
The court was also presented with opinion testimony from Dr. Jeffrey Timberlake for the plaintiffs, and Drs. Nolan McCarty and M.V. Hood, III, for the defendants. Because Ohio does not record the race or ethnicity of its voters, Timberlake used county-level data to make inferences about the relationship between voter race and the use or rejection of absentee and provisional ballots. He examined data from the 2008, 2010, 2012, and 2014 general elections.
Timberlake divided counties into “high minority” and “low minority” groups, and performed a regression assessing the correlation between a county’s percent minority and absentee and provisional ballot use and rejection. Two of his models controlled for urbanicity, and the age, education, and income of the white population. In those models, Timberlake observed “some evidence, though not very strong evidence, that absentee ballots are used more heavily by voters in high-minority counties.” He found “much stronger” evidence of higher rates of absentee-ballot rejection among African-American voters. All four elections showed higher use and rejection rates of provisional ballots in higher-minority counties, even when controlling for urbanicity and the three white-population characteristics.
The district court’s opinion gave “great weight” to Timberlake’s conclusions. It found that the defense expert witnesses did not refute Timberlake’s report. The court next considered nine nonexhaustive factors from Thornburg v. Gingles, 478 U.S. 30 (1986), “that might be probative” of a violation of Section 2 of the VRA. Id. at 36; id. at 36–37. In particular, the court concluded that the evidence on the record did not support Ohio’s justifications for enacting SB 205 and SB 216.

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Ultimately, the court entered judgment for the plaintiffs on their undue-burden and votedenial claims, and for the defendants on all other counts. It permanently enjoined the enforcement of the portions of SB 205 and SB 216 that: require boards to reject the ballots of absentee and provisional voters who do not accurately complete the address and birthdate fields; reduce the cure period to seven days; prohibit most forms of poll-worker assistance; and require provisional voters to print their names on the affirmation form.
Ohio appeals the entry of judgment for the plaintiffs on the undue-burden and vote-denial claims. Additionally, it contends that the court improperly approved the supplemental complaint, that the plaintiffs should have been precluded from bringing their challenges, and that they lack standing. The plaintiffs cross-appeal the entry of judgment for Ohio on the uniformstandards, literacy-test, due-process, intentional-discrimination, and immaterial-error claims.
II. Claim Preclusion and Standing
Ohio argues that all three plaintiffs, and the Ohio Democratic Party (ODP) at the very least, are bound by the district court’s decision in Ohio Org. Collaborative v. Husted, No. 2:15cv-1802, 2016 WL 3248030 (S.D. Ohio May 24, 2016). If claim preclusion prevents ODP from proceeding, Ohio asserts, we should next consider its argument that the remaining plaintiffs, NEOCH and the Columbus Coalition for the Homeless (CCH), lack standing. That one-two punch is too clever by half. Even if ODP were bound by Ohio Org. Collaborative (an issue on which we need not opine),7 NEOCH and CCH are not. And they have standing to bring suit.
For the first time on appeal, Ohio contends that NEOCH and CCH are precluded from bringing their claims because of a decision in a suit in which ODP was a party that was issued two weeks before the district-court judgment in this case. Even assuming that Ohio did not waive this argument by failing to raise it before the district court, see Mun. Resale Serv. Customers v. FERC, 43 F.3d 1046, 1052 n.4 (6th Cir. 1995), it is without merit. “The general rule” of claim preclusion “provides that when a court of competent jurisdiction has entered a

7In August 2015, plaintiff Ohio Organizing Collaborative moved to substitute three parties in its place,
including ODP, and to “drop . . . claims that overlap with those in” this case. Ohio opposed the latter motion. The court granted the substitution request but denied the motion to amend. Ohio Org. Collaborative v. Husted, No. 2:15cv-1802 (S.D. Ohio Sept. 2, 2015) (opinion and order).

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final judgment on the merits of a cause of action, the parties to the suit and their privies are thereafter bound . . . ‘as to every matter which was offered and received to sustain or defeat the claim or demand.’” Commissioner v. Sunnen, 333 U.S. 591, 597 (1948) (quoting Cromwell v. County of Sac, 94 U.S. 351, 352 (1876)). “[I]n certain limited circumstances,” a nonparty is “adequately represented by someone with the same interests who is a party.” Martin v. Wilks, 490 U.S. 755, 762 n.2 (1989). However, “to bind litigants to a judgment rendered in an earlier litigation to which they were not parties and in which they were not adequately represented” would violate due process. Richards v. Jefferson County, 517 U.S. 793, 794 (1996) (citing Hansberry v. Lee, 311 U.S. 32 (1940)).
An essential element of adequate representation is that “[t]he interests of the nonparty and her representative are aligned.” Amos v. PPG Indus., Inc., 699 F.3d 448, 452 (6th Cir. 2012) (quoting Taylor v. Sturgell, 553 U.S. 880, 900 (2008)). Citing Amos, Ohio suggests that the “aligned interests” of ODP and the other plaintiffs “are shown by the fact that they co-litigated this case with joint pleadings.” First Br. 58. The lax approach to nonparty preclusion implied by that reasoning would unmoor the requirement of “adequacy” from the anchor of “representation.” “Representative capacity must be established . . . by private or public appointment”—not by the assertions of a “self-appointed volunteer,” and certainly not by acting as co-parties in a later suit. 18A Charles Alan Wright , Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4454 (2d ed. 2002). ODP did not represent NEOCH and CCH in Ohio Org. Collaborative.
Further, mere overlapping interest will not work to preclude a nonparty from litigating a claim that a putative representative tried earlier. See Becherer v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 193 F.3d 415, 424 (6th Cir. 1999) (en banc) (rejecting claim of “virtual representation” when nonparty and supposed representative lacked “legal relationship”). Nor does Ohio point to any indication that “special procedures” were put in place to protect the interests of NEOCH and CCH in Ohio Org. Collaborative. Amos, 699 F.3d at 452. NEOCH and CCH are therefore not bound in this case by an earlier judgment against ODP.
Whether a party has standing is a legal question that appellate courts review de novo. Shearson v. Holder, 725 F.3d 588, 592 (6th Cir. 2013). When one party has standing to bring a

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claim, the identical claims brought by other parties to the same lawsuit are justiciable. Dep’t of Commerce v. U.S. House of Representatives, 525 U.S. 316, 330 (1999). Because NEOCH has organizational standing, we do not reach Ohio’s other arguments regarding NEOCH’s and CCH’s standing to bring suit.
To establish standing, a plaintiff must show a concrete and particularized injury that is actual or imminent, a causal connection between the injury and the conduct complained of, and likelihood that a favorable decision will redress the injury. H.D.V.-Greektown, LLC v. City of Detroit, 568 F.3d 609, 616 (6th Cir. 2009). In addition to suing on behalf of its members, an entity may sue “on its own behalf because it has suffered a palpable injury as a result of the defendants’ actions.” MX Grp., Inc. v. City of Covington, 293 F.3d 326, 332–33 (6th Cir. 2002).
Ohio points to our recent decision in Fair Elections Ohio v. Husted, 770 F.3d 456 (6th Cir. 2014), and argues that NEOCH and CCH have suffered no injury. In that case, we held that an organization that had conducted voter outreach lacked standing to challenge absentee-ballot procedures permitting hospitalized voters to obtain absentee ballots later than jailed voters. Id. at 459. The bases offered to support its injury claim—instructing election volunteers who were already being trained in current absentee-voting procedures and speculation that the law compelled the group to divert resources—were insufficient. Id. at 459–60.
Unlike the plaintiff organization in Fair Elections that challenged then-existing voting law, NEOCH takes issue with newly enacted provisions. That distinction is not just academic. Whereas the Fair Election plaintiff merely exhausted “efforts and expense [in] advis[ing] others how to comport with” existing law, id. at 460, NEOCH has immediate plans to mobilize its limited resources to revise its voter-education and get-out-the-vote programs on account of SB 205 and SB 216. In the past, NEOCH focused on educating and assisting the homeless with mail-in voting. Given the changes ushered in by SB 205 and SB 216, NEOCH determined that its resources are better spent assisting the homeless in participating in early in-person voting. To that end, it plans to redirect its focus for the 2016 general election by encouraging early inperson voting and driving homeless voters to the polls. It reports that this will require more volunteers, time, and expenditures. That is not simply the “effort and expense” associated with advising voters how to “comport” with the law, ibid., but an overhaul of the get-out-the-vote

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strategy of an organization that uses its limited resources helping homeless voters cast ballots. Their injury is imminent, as well as concrete and particularized.
Standing must exist as to each claim, however, and cannot be “dispensed in gross.” Lewis v. Casey, 518 U.S. 343, 358 n.4 (1996). But the record demonstrates that NEOCH has standing for its VRA claims as well. The injury suffered by NEOCH, as noted above, is directly related to SB 205 and SB 216’s alleged impact on the opportunity to vote of the AfricanAmerican community. Because their allegations indicate that the burden would cause them to change significantly their expenditures and operation and a favorable decision would redress that injury, NEOCH has organizational standing here as well. Finally, with regard to the cause of action, the VRA permits suit by the Attorney General or aggrieved voters, see Allen v. State Bd. of Elections, 393 U.S. 544, 557 (1969), but the Supreme Court has permitted organizations to bring suit in VRA claims, see Ala. Legislative Black Caucus v. Alabama, 135 S. Ct. 1257 (2015).
III. Supplemental Pleadings
The district court did not abuse its discretion by granting the plaintiffs’ motion to file a supplemental complaint. A district court may “permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented.” Fed. R. Civ. P. 15(d). Rule 15(d) aims “to give the court broad discretion in allowing a supplemental pleading.” Fed. R. Civ. P. 15(d) advisory committee’s note to 1963 amendment.
We review for abuse of discretion. See Spies v. Voinovich, 48 F. App’x 520, 527 (6th Cir. 2002). A district court abuses its discretion by relying on an incorrect legal standard, misapplying the correct legal standard, or judging the outcome based on clearly erroneous factual findings. Paterek v. Village of Armada, 801 F.3d 630, 643 (6th Cir. 2015).
Here, the court found that the original and supplemental complaints were sufficiently linked because SB 216 superseded the consent decree’s protections and because both provisions allegedly imposed burdens that would impede voting in similar ways as the voter-identification provisions originally challenged. “In essence,” the court found, “the ‘focal points’ of both

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complaints are the same: ensuring all ballots, but particularly provisional and absentee ballots, . . . are not unfairly excluded and left uncounted due to illegal voter identification rules.”
In so concluding, the court carefully applied the correct legal standard and did not make clearly erroneous factual findings. The supplemental complaint revolved around new election laws that affected the terms of a longstanding consent decree that resolved an even lengthier dispute. So, Defendants’ reliance on Leisure Caviar, 616 F.3d at 616, which addressed the issue of newly discovered evidence after entry of judgment, is misplaced. See First Br. 56. The district court did not clearly err when it found that the plaintiffs’ primary grievance with both sets of provisions was that methods of voter identification caused elections boards to disproportionately reject homeless voters’ absentee and provisional ballots. The interest of judicial economy, although not necessarily enough in and of itself, also militates in favor of allowing supplemental pleadings. When a dispute is complicated and protracted, and a new complaint the likely alternative, allowing supplemental pleadings before a court already up to speed is often the most efficient course.
IV. Voting Rights Act Claims
All three VRA claims are contested on appeal. Ohio appeals the judgment on the votedenial claim. The plaintiffs appeal the judgment on the literacy-test and materiality claims.
A. Vote Denial or Abridgment
1. Legal Framework
We review the district court’s legal conclusions de novo and factual findings for clear error. Lindstrom v. A-C Prod. Liab. Tr., 424 F.3d 488, 492 (6th Cir. 2005). “Under the clearerror standard, we abide by the court's findings of fact unless the record ‘le[aves] [us] with the definite and firm conviction that a mistake has been committed.’” United States v. Yancy, 725 F.3d 596, 598 (6th Cir. 2013) (alterations in original) (quoting United States v. Gardner, 649 F.3d 437, 442 (6th Cir. 2011)).8

8Although the dissent repeatedly classifies our review as de novo, our approach is consistent with established precedent in reversing the district court where the overall record is inconsistent with the findings.

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In City of Mobile v. Bolden, 446 U.S. 55 (1980), the Supreme Court held that racially
neutral state action did not fall within the ambit of VRA Section 2. Congress countered by
amending Section 2. That response “ma[d]e clear” to the Court “that a violation [of Section 2]
could be proved by showing discriminatory effect alone.” Gingles, 478 U.S. at 35. Section 2
now reads:
(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 10303(f)(2) of this title, as provided in subsection (b).
(b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.
52 U.S.C. § 10301 (Supp. II Vol. III 2015). The statute operates as a “permanent, nationwide
ban,” Shelby County v. Holder, 133 S. Ct. 2612, 2631 (2013), on “even the most subtle forms of
discrimination,” Chisom v. Roemer, 501 U.S. 380, 406 (1991) (Scalia, J., dissenting).
“The essence of a [Section] 2 claim” is the assertion that a challenged provision “interacts
with social and historical conditions” to cause an inequality of opportunity for racial minority
voters. Gingles, 478 U.S. at 47. Evaluating that allegation “requires ‘an intensely local appraisal
of the design and impact’ of the contested electoral mechanisms.” Id. at 79 (quoting Rogers v.
Lodge, 458 U.S. 613, 622 (1982)). Section 2 claims involve either vote denial or vote dilution.
Examining a vote-dilution claim in Gingles, the Supreme Court embraced nine nonexhaustive
factors as relevant in assessing “the totality of circumstances” for establishing a Section 2

See, e.g., Indmar Prod. Co. v. Comm’r, 444 F.3d 771, 778 (6th Cir. 2006) (“[W]hile our review is deferential, it is not nugatory.”).

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violation. Because the Court has yet to consider a Section 2 vote-denial claim after Gingles, the standard for such adjudication is unsettled.
In Ohio State Conference of the NAACP v. Husted, 768 F.3d 524 (6th Cir. 2014), we stated the analytical framework for Section 2 vote-denial claims as a two-part test: (1) “[T]he challenged ‘standard, practice, or procedure’ must impose a discriminatory burden on members of a protected class, meaning that members of the protected class ‘have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice,’” and (2) “that burden must in part be caused by or linked to ‘social and historical conditions’ that have or currently produce discrimination against members of the protected class.” Id. at 554 (quoting 52 U.S.C. § 10301 (Supp. II Vol. III 2015) and Gingles, 478 U.S. at 47). The Ohio State Conference panel affirmed an order preliminarily enjoining Ohio from reducing early in-person voting for the 2014 general election. The Supreme Court stayed that order. Husted v. Ohio State Conference of NAACP, 135 S. Ct. 42 (2014). Because the injunction applied only to the upcoming election, the panel vacated its opinion—including its articulation of the Section 2 vote-denial test. Ohio State Conference of the NAACP v. Husted, No. 14-3877, 2014 WL 10384647 (6th Cir. Oct. 1, 2014). On remand to the district court, the parties reached a settlement.
Two circuits have since adopted the Ohio State Conference test. See Veasey v. Abbott, ___ F.3d. ___, No. 14-41127, 2016 WL 3923868, at *17 (5th Cir. July 20, 2016) (en banc); League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 240 (4th Cir. 2014). The district court used it in this case, and a recent Sixth Circuit panel found it “helpful” in determining a Section 2 vote-denial claim. Ohio Democratic Party v. Husted, ___ F.3d ___, 2016 WL 4437605, at * 13 (6th Cir. Aug. 23, 2016) (evaluating a vote-denial claim using the Ohio State Conference framework, with additional clarification).
Ohio argues that the two-part test goes awry in two ways. Whether the district court did in fact mischaracterize the test is irrelevant, however. At the very least, a successful Section 2 claim requires the plaintiffs to prove disparate impact. The plaintiffs failed to prove that SB 205 and SB 216 have a disparate impact on African-American voters. Therefore, analysis of any test beyond disparate impact is unnecessary.

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2. SB 205 and SB 216
The district court found that “Timberlake’s data on disparities in provisional and absentee ballot usage and rejection rates reveal that higher minority population share is correlated to higher rates of absentee ballot rejection and provisional ballot usage and rejection.” Based on that analysis, it concluded that SB 205 and SB 216 make “African-American voters . . . more likely than white voters to have their absentee or provisional ballots rejected.” The record would indicate otherwise.
For starters, Timberlake’s regression analysis simply does not support the conclusion that SB 205’s address and birthdate perfection requirement, or its limitation on poll-worker assistance, disparately impact minority voters. When controlling for urbanicity and the age, income, and education of the white population, Timberlake found that for every additional one percent minority in a county, use of absentee ballots increased by a small amount in the 2008 and 2010 general elections—134.2 and 195.2, respectively, for every 100,000 voting-age residents— but decreased by 99.5 and 96.6 ballots in the 2012 and 2014 general elections.9 He therefore found that the evidence to support the conclusion that high-minority counties use absentee ballots more heavily was “not very strong.”
Certainly additional absentee ballots are rejected on account of the perfection requirement. But there is scant evidence in the record that minority voters are more likely to cast absentee ballots than white voters. It would therefore be illogical to infer that rejecting absentee ballots for failure to accurately complete address and birthdate fields disproportionately affects minority voters without some other evidence that minority voters are less likely to fulfill those requirements. And, as discussed in more detail elsewhere, the vast majority of absentee-ballot rejections are for reasons other than those challenged here.
The same is true of the limits that SB 205 places on poll workers. To be sure, the provision will impact the hypothetical early in-person absentee voter whose ballot would have been rejected in past elections but for now-prohibited forms of assistance. Yet the record contains no evidence of how many, if any, voters received such additional “assistance.” Because
9Timberlake did not separately analyze in-person absentee voting and mail-in absentee voting.

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evidence of higher minority absentee-ballot usage is weak, and the record does not indicate that minority voters disproportionately benefited from assistance that is now proscribed, plaintiffs have not demonstrated a disparate impact.
On their other Section 2 claims, the plaintiffs fail to show that the challenged provisions will have much of an impact on the right to vote at all. The district court reasoned that reducing the cure period from ten to seven days would burden illiterate voters and voters for whom travelling to cure their ballots presents logistical difficulties. Hypothetically speaking, a scenario could exist where voters showed up in droves to correct absentee-ballot errors and to produce provisional-ballot ID during those three days. But that has not been the case in Ohio. In fact, the single election-board official whose trial testimony the district court cited in support of its conclusion stated that in Hamilton County, Ohio’s third most populous, “very few voters” cured their ballots during that three-day window. The record contains no evidence on the number of absentee or provisional voters who took advantage of the cure days eliminated by SB 205 and SB 216. A law cannot disparately impact minority voters if its impact is insignificant to begin with.
Challenges to SB 216’s perfection requirement of provisional voters and its limitation on poll-worker assistance suffer from the same shortcoming. The conclusion that SB 216 disproportionately impacts minority voters is not borne out in the data. For the vast majority of provisional voters whose ballots are rejected, no amount of help would change the result. The record contains provisional voting data for the 2008, 2010, 2012, 2014, and 2015 general elections. In every one of those elections, eighty to ninety percent of provisional voters whose ballots were rejected either had failed to register at all or voted in the wrong place. Placing a minor check on election workers’ interactions with in-person voters has no impact on the vast majority of provisional-ballot rejections.
SB 216 has been in effect during the two most recent general elections. The provisional ballots of 247 voters in 2014 and 373 voters in 2015 were rejected for failure to provide an accurate birthdate or address. Respectively, these figures represented about five and three percent of rejected provisional ballots—and less than one percent of all provisional ballots cast. What is more, the 2015 figure does not account for individuals whose 2014 ballots were rejected

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for failure to register but who accurately completed the affirmation form and successfully registered for the next election. Presumably, some of those voters would not have registered otherwise, which means that SB 216 has the effect of reducing the number of ballots rejected on the basis of nonregistration in future elections. That impact helps to counter the small impact that SB 216 does have. Given the negligible impact of SB 216’s perfection requirement on ballot rejection, the plaintiffs have not shown that the provision disproportionately affects minority voters.
B. Literacy Test
Section 4 of the VRA provides that “[n]o citizen shall be denied” the right to vote “because of his failure to comply with any test or device.” 52 U.S.C. § 10501(a) (Supp. II Vol. III 2015). “Test or device” is defined as a requirement that, as a prerequisite to vote or register, a person demonstrate the ability to “read, write, understand, or interpret any matter,” demonstrate “educational achievement” or “knowledge” of any subject, “possess good moral character,” or have others “vouch[]” for them. Id. § 10501(b).
The district court found that § 10501 includes a private right of action before concluding that the challenged provisions do not violate the statute. Even if a private right of action is permitted, we agree with the district court that SB 205 and SB 216 do not impose a “test or device” on Ohio voters.
The plaintiffs equate the requirement that absentee and provisional voters accurately complete address and birthdate fields with the “vague, arbitrary, hypertechnical or unnecessarily difficult” tests cited by Congress as evidence of the urgent need for the VRA. H.R. Rep. No. 89439, at 13 (1965). However, requiring voters’ most basic biographical and personal information bears no similarity to selectively enforced voting tests whose “only real function” is to “foster racial discrimination.” Ibid.; see also id. at 12 (citing United States v. Louisiana, 225 F. Supp. 353, 358 (E.D. La. 1963) (three-judge panel finding a Louisiana Constitution requirement that registration applicants be able to read and “give a reasonable interpretation” of any clause of the Louisiana or United States Constitution violated Fourteenth and Fifteenth Amendments), aff’d, 380 U.S. 145 (1965)); S. Rep. 89-162, pt. III, at 11–12 (1965) (cataloging cases of

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“discriminatory misuse” of literacy tests and “good moral character” requirements). The address-and-birth-date requirements simply do not fall within the meaning of “test or device,” as used in the statute. 52 U.S.C. § 10501(b). To the extent that the House Report censures “‘perfect form’ requirements,” no such prohibition appears in the text of the statute itself. Compare H.R. Rep. 89-439, at 13, with 52 U.S.C. § 10501. In these circumstances, the unambiguous language of the statute must prevail. See Rote v. Zel Custom Mfg. LLC, 816 F.3d 383, 394 (6th Cir. 2016) (heeding Supreme Court’s “admonishment to courts not to add any unexpressed requirements to the language of the statute” (quoting Keller v. Cent. Bank of Nigeria, 277 F.3d 811, 818 (6th Cir. 2002))).
To the extent that recording birthdate or address proves difficult for some voters, Ohio explicitly permits election officials to assist those who are blind, disabled, or illiterate in marking their ballots. See Ohio Rev. Code §§ 3505.24(B), 3505.181(F). The plaintiffs’ supposition that the stigma of illiteracy deters some voters from requesting assistance distracts from the focus of the inquiry—state action. To fill the address and birthdate fields, voters need not “demonstrate the ability” to read or write any more so than they do to otherwise complete a ballot.
C. Immaterial Error
The VRA provides that no one acting under color of law may “deny the right of any individual to vote in any election because of an error or omission” on a registration application or voting ballot if the error or omission “is not material” in determining whether the individual is qualified to vote. 52 U.S.C. § 10101(a)(2)(B) (Supp. II Vol. III 2015). A later subsection of § 10101 states that when any person has deprived another of “any right or privilege secured by subsection (a) . . . , the Attorney General may institute for the United States . . . a civil action or other proper proceeding for preventive relief.” Id. at § 10101(c).
We have held that the negative implication of Congress’s provision for enforcement by the Attorney General is that the statute does not permit private rights of action. See McKay v. Thompson, 226 F.3d 752, 756 (6th Cir. 2000). Another circuit later reached the opposite conclusion. See Schwier v. Cox, 340 F.3d 1284, 1294–96 (11th Cir. 2003). It reasoned, in part, that the Supreme Court had found other VRA sections enforceable by private right of action

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despite their provision for Attorney General enforcement and that before the Attorney General language was appended to the statute, plaintiffs “could and did” bring enforcement actions under 42 U.S.C. § 1983. Id. at 1295.
“A panel of this court may not overturn binding precedent because a published prior panel decision ‘remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision.’” United States v. Elbe, 774 F.3d 885, 891 (6th Cir. 2014) (quoting Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985)). McKay v. Thompson therefore binds this panel. The plaintiffs may not bring an action for a violation of § 10101(a).
V. Equal-Protection Claims
Three equal-protection questions are at issue on appeal: Whether the challenged provisions (1) unduly burden the right to vote; (2) result in a lack of uniform standards; and (3) were enacted with a discriminatory purpose. Once again, we review the district court’s legal conclusions de novo and factual findings for clear error.
A. Undue Burden
1. Legal Standard
The certainty that every election law places at least some burden on individual voters demands that courts weigh that hindrance against the provision’s regulatory justification. On one hand, “voting is of the most fundamental significance under our constitutional structure.” Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979). On the other, “[c]ommon sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections.” Burdick v. Takushi, 504 U.S. 428, 433 (1992). Acknowledging this tension, the Supreme Court has articulated a “flexible standard” to apply when considering challenges to state election law:
A court . . . 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

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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.”
Id. at 434 (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)).
In practice, the level of scrutiny into a challenged election law varies based on the severity of its constraint on voting rights. “[S]evere restriction[s]” must be “narrowly drawn to advance a state interest of compelling importance.” Norman v. Reed, 502 U.S. 279, 289 (1992). At the other end of the spectrum, “minimally burdensome and nondiscriminatory” regulations inevitably result in “a less-searching examination.” Ohio Council 8 Am. Fed’n of State v. Husted, 814 F.3d 329, 335 (6th Cir. 2016). For regulations that “fall[] somewhere in between the two extremes, ‘the burden on the plaintiffs is weighed against the state’s asserted interest and chosen means of pursuing it.’” Ibid. (quoting Green Party of Tenn. v. Hargett, 767 F.3d 533, 546 (6th Cir. 2014)) (alteration omitted). As a general matter, “important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions.” Anderson, 460 U.S. at 788.
In striking portions of SB 205 and SB 216, the district court considered the burdens that the provisions impose on NEOCH’s and CCH’s homeless and illiterate members. Zeroing in on the abnormal burden experienced by a small group of voters is problematic at best, and prohibited at worst. In Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008), the Supreme Court upheld an Indiana voter-ID law. The plaintiffs urged the Court to consider the burden imposed on the “narrow class of voters” who could not afford or obtain a birth certification and had to return to the circuit court clerk’s office after voting. Id. at 200 (opinion of Stevens, J.). The lead opinion refrained from weighing the “special burden” faced by “a small number of voters” because the evidence on the record gave “no indication of how common the problem is,” which made it impossible “to quantify . . . the magnitude of the burden.” Id. at 200, 202. A concurrence rejected outright the idea of measuring the burden on a subset of voters. “[W]hat petitioners view as the law’s several light and heavy burdens,” it reasoned, “are no more than the different impacts of the single burden that the law uniformly imposes on all voters.” Id. at 205 (Scalia, J., concurring in the judgment).

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In any event, the district court erred by weighing Ohio’s regulatory interests against the burden that the challenged provisions uniquely place on homeless and illiterate voters.10 Even under the controlling opinion’s more liberal approach to burden measuring, the record here is devoid of quantifiable evidence from which an arbiter could gauge the frequency with which this narrow class of voters has been or will become disenfranchised as a result of SB 205 and SB 216. We therefore consider the burden that the provisions place on all Ohio voters.
2. SB 205 and SB 216
Address and Birthdate Requirements. Requiring boards of elections to reject the ballots of absentee and provisional voters who fail to accurately complete birthdate and address fields directly and measurably disenfranchises some voters. As discussed, see supra p. 16, in the 2014 and 2015 general elections, 620 provisional ballots were rejected as failing to meet SB 216’s address and birthdate perfection requirements, out of a total of 16,942 rejections. Among over 860,000 domestic civilian absentee ballots cast in 2014 and 430,000 in 2015, 1378 ballots were rejected in 2014, and 334 in 2015, for failure to comply with the similar provision in SB 205.11
Considering the number of total ballots cast in a general election in Ohio, these figures are small. And yet, as demonstrated through voter declarations and the testimony of board officials, the formal rigidity of the challenged requirements may leave no room for elections boards to make their own judgments on voter eligibility. As a result, identifiable voters may be disenfranchised based only on a technicality. For example, transposing the location of the month and year numerals of a birthdate, writing the current date by mistake, and inverting digits in an address have been cited by elections boards as reasons for automatic ballot rejection.
A facial challenge to a state law fails “where the statute has a ‘plainly legitimate sweep.’” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008) (quoting
10Illiterate voters may request and receive assistance in marking their ballots from nearly “any person of the[ir] . . . choice,” including “two election officials of different political parties.” Ohio Rev. Code. § 3505.24. Homeless voters may register their address as “a shelter or other location at which the person has been a consistent or regular inhabitant and to which the person has the intention of returning.” Id. § 3503.02(I).
11In addition, 633 domestic civilian absentee ballots were rejected in 2014, and 346 in 2015, because the voter ID envelope “[c]ontains [i]nsufficiient [sic] [i]nformation.” Cf. Ohio Rev. Code § 3509.07(A).

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Washington v. Glucksberg, 521 U.S. 702, 740 n.7 (1997) (Stevens, J., concurring in the judgments)). For SB 216, the interest in registering provisional voters outweighs the burden of completing the address and birthdate fields. Most provisional-ballot rejections occur in Ohio because the purported voter was not registered. In 2012, a presidential-election year, over 20,000 provisional ballots were rejected for failure to register. Ohio uses the affirmation form to register the unregistered provisional voters who unsuccessfully try to cast ballots each year.
The additional fields also help elections boards positively identify provisional voters. For their ballots to be counted, provisional voters must be located in a statewide database of registered voters. Predictably, entering a provisional voter’s name and the last four digits of their Social Security number into the database can result in multiple hits. Birthdate and address information can narrow the plausible registered voters and assist in confirming an eligible voter’s right to vote (and vice versa). Ohio’s important interests in provisional-voter registration and identification eclipse the small burden of accurately completing the two fields—a burden that actually impacts just a few hundred voters each election, an impact wholly in their own control.
However, we agree with the district court that Ohio has made no such justification for mandating technical precision in the address and birthdate fields of the absentee-ballot identification envelope. Although the burden is small for most voters, its impact is greater than that of SB 216, and none of the “precise interests put forward by” Ohio justifies it. Burdick, 504 U.S. at 434 (citation omitted). Ohio first posits that the perfection requirement hampers “rare[]” attempts to cast others’ mail-in absentee ballots. First Br. 30. Combatting voter fraud perpetrated by mail is undeniably a legitimate concern. See Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (per curiam). Yet some level of specificity is necessary to convert that abstraction into a definite interest for a court to weigh. The district court found that Ohio did not even “offer[] combatting voter fraud” as a relevant interest. Given the lack of any coherent fraud argument offered at trial, that conclusion is understandable.
Moreover, Ohio’s argument collapses under scrutiny. Before SB 205, absentee voters had to clear several hurdles to confirm their identity. In addition to presenting valid identification, a voter needed the signature on the envelope to match the voter’s registration signature, and even then, the information in the identification envelope could be deemed

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“insufficient.” Ohio Rev. Code § 3509.07 (2013); see also id. §§ 3509.05–.06, 3511.09. Like all other ballots, those of absentee voters could be challenged “for cause.” Id. § 3509.07. Under some circumstances, certain errors in address or birthdate could well constitute “insufficiency.” SB 205 altered that provision, requiring boards to reject absentee ballots that do not include an accurate address and birthdate for the voter.
Even Ohio recognizes that the downside of rejecting mail-in absentee ballots for address errors overshadows any concern with address falsification. Ohio statute allows, and the Secretary has instructed, boards of elections to complete the address field on mail-in identification envelopes so that ballots are not thrown out “for th[at] sole reason.” At bottom, Ohio’s interest revolves around the “rare” instances where a fraudster manages to swipe the ballot of a registered absentee voter, forge the signature, and return the ballot to the board of elections with a copy of the voter’s identification, driver’s license number, or Social Security number, and would have gotten away scot free but for the troublesome birthdate requirement. What is more, Ohio does not explain why its interest in preventing voter fraud by mail makes it “necessary to burden” the plaintiffs’ voting rights. Burdick, 504 U.S. at 434 (citation omitted). Before SB 205, boards were instructed to strike ballots if the identification envelope contained “insufficient” information and had discretion to “challenge” absent voters “for cause.” Ohio Rev. Code § 3509.07 (2013). That provision gave boards more than sufficient flexibility to investigate birthdate errors for fraud without the heavy-handed requirement of ballot rejection on a technicality.
At trial, the district court was not presented with a shred of evidence of mail-in absenteevoter fraud. That absence of support is corroborated by ample testimony. Halfway through trial, the court held a sidebar where it asked counsel for Ohio whether a fraud argument was “going to be a part of the presentation of . . . [Ohio’s] case in chief, . . . experts, [or] other witnesses.” Counsel stated that the court “w[ould] hear testimony” about the interests motivating the passage of the bills, including fraud. Not only did that never materialize, but, as is apparent from the record, there is no indication of a legitimate fraud concern at all. The Assistant Secretary of State, responsible for managing statewide elections, affirmed upon cross-examination that the possibility of this particular voter fraud is “infinitesimal” and would not have been “an

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appropriate justification” for SB 205’s perfection requirement. None of the officials who testified from nearly a quarter of Ohio’s boards of elections were even asked whether requiring perfection on the birthdate field would combat mail-in absentee-voter fraud. At the court’s own prodding, several answered questions related to fraud. The few who could relate instances of fraud identified none relating to the specific interest now asserted. This suggests that the fraud interest does not offset the burden of technical perfection on the identification envelope’s address and birthdate fields.
Ohio also asserts an interest in standardizing its identification-envelope requirements. Achieving uniform standards across eighty-eight autonomous county boards of elections is a commendable goal. A court weighing that interest, however, must ask, “Standardization to what end?” For example, a standardized ballot may increase public confidence in the integrity of the electoral process. See Crawford, 553 U.S. at 235 (Souter, J., dissenting). According to Ohio, SB 205’s perfection requirement “increases efficiency and predictability.” First Br. 32.
In support, Ohio cites just two pieces of evidence. During his testimony, the Assistant Secretary of State stated that before the implementation of SB 205, the birthdate field was “a required element on the [identification envelope, but] was not a required element for the Board to determine the validity of the ballot.” Although true, that statement does not address whether that distinction was thought by anyone to make election administration less efficient. Ohio also points to a report of the OAEO advising that requiring mail-in voters to complete the address and birthdate fields, among other measures, would “allow election officials to more efficiently process mail-in absentee ballots.” However, that document was silent with regard to in-person absentee ballots. Moreover, it was not a recommendation to reject ballots containing technical errors, and so cannot support the argument that a uniform rejection standard increases efficiency.
Nor does Ohio’s interest in uniformity “make it necessary to burden” the right to vote with a technical-perfection requirement. Burdick, 504 U.S. at 434 (citation omitted). Even before SB 205, Ohio law instructed boards of elections on the information to include in absenteevoter identification envelopes. See Ohio Rev. Code § 3509.04(B) (2013). It would seem that the simple act of amending that provision to more comprehensively describe the information that identification envelopes should contain would have been a less roundabout way to uniformity—

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and would not have needlessly disenfranchised voters. In addition, Ohio publishes a lengthy manual for election officials with extensive instructions on how to apply its statutory election provisions. It includes a “Reasons to Reject an Absentee Ballot” section. Ohio could include instructions explaining the steps that officials should take to positively identify voters before determining that an identification envelope is sufficient or insufficient. Instead, the legislature enacted a measure that forces elections boards to reject some identifiable ballots. We cannot find that Ohio’s stated interests outweigh the burden that the field-perfection requirement places on absentee voters.
Limit on Poll-Worker Assistance. The burden imposed by demarcating the types of assistance that election officials may render voters is minimal. In most cases, poll-worker assistance will not fix the errors that result in the rejection of absentee and provisional ballots. As discussed, most rejected provisional ballots were not counted because the applicant was not registered at all or tried to vote in a precinct where her or she was not registered. Domestic civilian absentee ballots were usually rejected just for being submitted late—sixty-three percent of rejected ballots in 2014 and over eighty percent in 2015. All voting requirements inevitably encumber some people more than others. Yet Ohio specifically ensures that voters at the greatest risk of making mistakes in marking their ballots—blind, disabled, and illiterate individuals— receive help if it is requested. The onus is on the voter to make the request, but that hardly impinges the right to vote. Any burden is borne only by those who can but do not ask for help or make easily avoidable errors in marking their ballots.
Ohio’s legitimate interest in minimizing election-official mistakes by ensuring that they are not overburdened and do not fill in others’ personal information justifies the limitation placed on poll-worker assistance.12 Because Ohio asserts a legitimate interest, this minimally burdensome regulation does not amount to an unconstitutional abridgment of the right to vote.

12Although not argued by Ohio on appeal, states have an important interest in managing poll-workers’
interaction with voters to protect ballot secrecy and prevent coercion. See, e.g., Burson v. Freeman, 504 U.S. 191, 206 (1992) (plurality opinion) (“[A]ll 50 States, together with numerous other Western democracies . . . [have] a secret ballot secured in part by a restricted zone around the voting compartments,” which “demonstrates that some restricted zone is necessary in order to serve the States’ compelling interests in preventing voter intimidation and election fraud.”).

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Cure-Period Reduction. As discussed, on the basis of the record, reducing from ten to seven the number of days for correcting absentee-ballot errors and presenting provisional-ballot identification imposes a trivial burden on Ohio voters. There is no evidence of the magnitude of the burden and at least one board official testified that few voters even used the final three cureperiod days.
That minimal burden on voting is easily outweighed by Ohio’s interest in reducing the administrative strain felt by boards of elections before they begin to canvass election returns. The official canvass must begin eleven to fifteen days after Election Day. Ohio Rev. Code. § 3505.32(A). The possibility of unforeseeable post-election issues thrust upon boards is a legitimate concern. Building in a three-day buffer between the cure period and the official canvass is a common-sense solution. Although, as the district court noted, none of the board officials who testified indicated that the ten-day cure period inconvenienced them, a state certainly need not wait for an election issue to arise before enacting provisions to avoid it. See Munro v. Socialist Workers Party, 479 U.S. 189, 195–96 (1986). Federal law does require that voting equipment give voters the opportunity to correct errors before their ballots are cast and counted. See 52 U.S.C. § 21081(a)(1)(A)(ii) (Supp. II Vol. III 2015). But no case mandates any particular length of time that states must provide after Election Day for voters to cure ballot errors. Given the negligible impact of the cure-period reduction on voters, Ohio’s reasonable response to a foreseeable problem is not an undue burden.
B. Lack of Uniform Standards
A plaintiff may state an equal-protection claim by alleging that lack of statewide standards results in a system that deprives citizens of the right to vote based on where they live. League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 477–78 (6th Cir. 2008). The district court rejected the plaintiffs’ argument that the boards of elections used different standards in the two most recent general elections for determining whether to reject absentee and provisional ballots that contained errors or omissions. We agree.
The plaintiffs presented uncontested evidence that, in determining whether to reject a given ballot, the practices of boards of elections can vary, and sometimes considerably. But that

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does not address the central question in a lack-of-uniform standards claim: whether Ohio lacks “adequate statewide standards for determining what is a legal vote.” Bush v. Gore, 531 U.S. 98, 110 (2000) (per curiam). Arguable differences in how elections boards apply uniform statewide standards to the innumerable permutations of ballot irregularities, although perhaps unfortunate, are to be expected, just as judges in sentencing-guidelines cases apply uniform standards with arguably different results. In fact, that flexibility is part and parcel of the right of “local entities, in the exercise of their expertise, [to] develop different systems for implementing elections.” Id. at 109. Despite differences in the local application of provisions concerning ballot rejection, the elections boards are guided by clear prescriptive statewide rules that apply equally to all voters. Nor is there any indication that certain categories of provisional or absentee ballots received “preferential treatment.” Ne. Ohio Coal. for Homeless v. Husted, 696 F.3d 580, 598 (6th Cir. 2012); see also Hunter v. Hamilton Cty. Bd. of Elections, 635 F.3d 219, 236 (6th Cir. 2011). Thus, the district court correctly concluded that the plaintiffs did not prove arbitrary treatment.
C. Intentional Discrimination
Facially neutral laws can be motivated by invidious racial discrimination. Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977). Because of the possibility that discriminatory intent is an underlying motivation, courts must undertake a “sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Ibid. Challengers need to show only that discriminatory purpose was “a motivating factor,” not necessarily the law’s “dominant” or “primary” purpose. Id. at 265–66.
In Arlington Heights, the Supreme Court articulated nonexhaustive evidentiary factors to consider in determining whether official action was undertaken with a discriminatory purpose. Those factors include:
“[T]he historical background of the decision, . . . particularly if it reveals a series of official actions taken for invidious purposes”; “the specific sequence of events leading up [to] the challenged decision”; “departures from the normal procedural sequence”; “substantive departures, . . . particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached”; and the “legislative or administrative history, . . . especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports.”

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Spurlock v. Fox, 716 F.3d 383, 397 (6th Cir. 2013) (quoting Arlington Heights, 429 U.S. at 267– 68) (alterations omitted).
The record does not reveal that SB 205 and SB 216 were enacted with discriminatory intent. As discussed, the evidence does not demonstrate that minority voters are disproportionately affected by the provisions. Nor did the legislature depart from normal procedural practices when it considered the provisions for several months before their passage. Cf. N.C. State Conference of the NAACP v. McCrory, ___ F.3d ___, Nos. 16-1468, 16-1469, 161474, 16-1529, 2016 WL 4053033, at *13 (4th Cir. July 29, 2016) (law passed with discriminatory intent in part due to legislature’s “eagerness,” after Shelby County held unconstitutional Section 5’s preclearance requirement, to “rush through the legislative process the most restrictive voting law North Carolina has seen since the era of Jim Crow”). In fact, the basic contours of SB 205 originally appeared in a report of the bipartisan OAEO.
A racially tinged statement by one legislator who allegedly asked during committee debate whether the General Assembly “should . . . be making it easier for those people who take the bus after church on Sunday to vote” is troubling. Cf. Ohio State Conference, 768 F.3d at 539 (“African Americans have come to rely on Sunday voting through ‘Souls to the Polls initiatives,’ in which churches have leveraged the transportation they already provide to and from church to bring voters to EIP voting locations.”). But we agree with the district court that on the whole, the record does not show that the General Assembly acted with racial animus.
VI. Due Process
The Due Process Clause is implicated in “exceptional” cases where a state’s voting system is “fundamentally unfair.” Warf v. Bd. of Elections, 619 F.3d 553, 559 (6th Cir. 2010) (quoting League of Women Voters of Ohio, 548 F.3d at 478). Fundamental unfairness may occur, for example, if a state uses non-uniform procedures that result in significant disenfranchisement and vote dilution. See League of Women Voters of Ohio, 548 F.3d at 478. “[G]arden variety election irregularities,” however, do not prove fundamental unfairness. Griffin v. Burns, 570 F.2d 1065, 1076, 1078–79 (1st Cir. 1978). The district court rejected the plaintiffs’ fundamental-unfairness claim, and we affirm.

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As discussed in response to the argument that Ohio’s voting system lacks uniform standards, discrepancies at the margins in how local boards of elections apply statewide provisions is not unusual. Those predictable divergences impact a small number of voters and do not amount to a fundamentally unfair voting system. Nor do the technical-perfection requirements that SB 205 and SB 216 impose on absentee and provisional voters rise to an exceptional level of unfairness comparable to grossly non-uniform procedure or significant voter disenfranchisement.
We also find unconvincing the appellees’ contention that the district court denied their procedural-due-process claim “without addressing its merits.” Second Br. 75. The district court clearly held that the alleged harm was “caused by the portions of SB[] 205 and SB 216 that impose a completion requirement for the five fields, not the lack of process given when a ballot is rejected.” Ne. Ohio Coal. for the Homeless v. Husted, No. 2:06-CV-896, 2016 WL 3166251, at *43 (S.D. Ohio June 7, 2016) (emphasis added). We therefore dismiss this claim.
VII. Conclusion
We AFFIRM the entry of judgment for the plaintiffs on their equal-protection undueburden claim as it relates to the requirement that boards of elections reject mail-in and in-person absentee ballots for failure to complete the identification envelope’s address and birthdate fields with technical precision. Therefore, we AFFIRM its permanent injunction of the portions of SB 205 that amend Sections 3509.06(D) and 3509.07 of the Ohio Revised Code. See S.B. 205, 130th Gen. Assemb. (Ohio 2014), at 9–12.
To be perfectly clear, this remaining injunction does not impede the legitimate interests of Ohio election law. The versions of Sections 3509.06(D) and 3509.07 that existed before the enactment of SB 205 (and that the injunction effectively reinstates) were altogether serviceable. Nothing in our opinion prevents election officials from rejecting absentee ballots whose identification envelopes contain “insufficient” information. Ohio Rev. Code. § 3509.07 (2013). The Secretary can and should continue to instruct the boards of elections on implementing those provisions in order to further the interest of uniformity and to provide guidance on the steps boards should take to identify absentee voters before deeming an identification envelope

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“insufficient.” And, within the bounds of the Fourteenth Amendment, the General Assembly has authority to modify its elections laws in the future. But in doing so, it must act to further important State interests if its proposed changes burden Ohioans’ right to vote.
We deeply respect the dissent’s recounting of important parts of the racial history of our country and the struggle for voting rights, and we agree that this history may always be appropriately borne in mind. However, that history does not without more determine the outcome of today’s litigation over voting practices and methods. The legal standards we must follow are set out in the cases we discuss concerning the standards embodied in the Fourteenth Amendment and Section 2 of the Voting Rights Act. With respect to the dissent’s discussion regarding factual findings, this opinion does not quarrel with the district court over its recitation of the record or of any credibility determinations made by the district court. Rather, our holding is that the district court’s legal conclusions from that record are in certain parts erroneous, as set forth in this opinion, and in light of other parts of the record that the court did not consider.
For reasons stated, we REVERSE the judgment of the district court on the remaining undue-burden claims and the VRA Section 2 claims. We AFFIRM the entry of judgment for Ohio on all other claims.

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_________________
DISSENT _________________
DAMON J. KEITH, concurring in part, dissenting in part. Democracies die behind closed doors. Detroit Free Press v. Ashcroft, 303 F.3d 681, 683 (6th Cir. 2002). By denying the most vulnerable the right to vote, the Majority shuts minorities out of our political process. Rather than honor the men and women whose murdered lives opened the doors of our democracy and secured our right to vote, the Majority has abandoned this court’s standard of review in order to conceal the votes of the most defenseless behind the dangerous veneers of factual findings lacking support and legal standards lacking precedent. I am deeply saddened and distraught by the court’s deliberate decision to reverse the progress of history. I dissent.
In 2014, Ohio enacted Senate Bills 205 and 216, which (1) required county elections boards to reject the ballots of absentee and provisional voters whose identification envelopes or affirmation forms, respectively, contained an address or birthdate that did not exactly match voting records; (2) reduced the number of post-election days for absentee voters to cure identification-envelope errors, and the number of days for provisional voters to present valid identification, from ten days to seven days; and (3) restricted the ways in which poll workers can help in-person voters. After conducting a twelve-day trial and authoring a 112-page opinion brimming with sound factual findings and legal conclusions, the district court (Judge Algenon L. Marbley) justly held that all of the challenged provisions imposed an undue burden on the right to vote and violated plaintiffs’ equal protection rights.
In complete abandonment of the clearly erroneous standard of review, the Majority displaces several of the district court’s well-reasoned and supported factual findings. The Majority’s decision to gut the factual findings of the district court and to advance legal standards without precedent in order to shut the most vulnerable out of the political process must be subjected to the natural antiseptic of sunlight. The unfettered right to vote is the bedrock of a free and democratic society—without it, such a society cannot stand. This right is fundamental. It is the most valuable right a person possesses, because without it, all other rights are meaningless. As history has shown time and time again, laymen and jurists alike have actively

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worked to deny the right to vote to minorities, in both obvious and obscure ways. The Voting Rights Act (“VRA”),1 sought to right this wrong by allowing all citizens—unrestrained—to exercise their right to vote regardless of race. While the VRA and Equal Protection Clause sought to bring this nation forward, closer to a society free of racial discrimination, today the Majority’s opinion takes us several steps back. Because the Majority has completely ignored the applicable standard of review and has instead engaged in its own fact finding and reweighing of the evidence in complete disregard for the clearly erroneous standard of review, because the Majority has created a legal standard in contradiction to existing case law based on a concurring opinion and dictum, and because the Majority has dishonored the struggle for the right of the most vulnerable to vote, I dissent. I would instead affirm the district court in full.
BACKGROUND
A. Historical Background
1. The Martyrdom and Struggle for Equal Protection
The Majority’s actions must be viewed in full light of their historical context. The murders of countless men and women who struggled for the right to vote and equal protection cannot be overlooked. The utter brutality of white supremacy in its efforts to disenfranchise persons of color is the foundation for the tragedy that is the Majority’s effort to roll back the progress of history. I will not forget. I cannot forget—indeed America cannot forget—the pain, suffering, and sorrow of those who died for equal protection and for this precious right to vote. I add the following publicly available historical statements to humanize the struggle for the right to be equal participants in the democratic process. While the Majority aptly notes that these historical statements do not dictate the outcome of this case, it is imperative that we assess the efforts to undermine the right to vote as an historical operative that did not begin with the Majority’s opinion and unfortunately will not end with it.2

152 U.S.C.A. § 10301 et seq.
2I give full context to the legal analysis of the issues presented in this case as well as full historical contextualization of the facts. The following pictures and synopses cannot capture the full horror of those who lost their lives in the quest for equal protection and voting rights. The following is a mere fraction of the martyrs of the struggle for equality. The assaults, rapes, murders, lynching, and utter travesty of the struggle for equality can never

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In 1955, Reverend George Lee, an African American Baptist minister who had the temerity to found a local NAACP chapter in Humphreys County, Mississippi, urged his congregation to vote. While the cause of his death is disputed, there is substantial evidence that he was murdered for his efforts.3

In 1955, Lamar Smith was shot dead on the
courthouse lawn by a white man in broad daylight while dozens of people watched.4 The
killer was never indicted. Smith had organized blacks to vote in a recent election.5

be fully captured in words or pictures. The Southern Poverty Law Center sustains a memorial for these individuals, and much of the following information can be found on their website: https://www.splcenter.org/what-we-do/civilrights-memorial/civil-rights-martyrs (last visited September 12, 2016).
3See K.C. Meckfessel Taylor, Marielle Elisabet Dirkx, William Mcintosh, W. Tucker & Carrington, CSI Mississippi: The Cautionary Tale of Mississippi’s Medico-Legal History, 82 Miss. L.J. 1271, 1272 (2013).
4Paula C. Johnson, Voting Rights and Civil Rights Era Cold Cases: Section Five and the Five Cities Project, 17 Berkeley J. Afr.-Am. L. & Pol’y 377, 384 (2015).
5Id.

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In 1955, Emmett Louis Till, a 14-year-old boy on vacation, reportedly flirted with a white woman in a store.6 Three nights later, two men took Till from his bed, beat him, shot him and dumped his body in the Tallahatchie River. One of Till’s murderers reflected, “I just decided it was time a few people got put on notice. As long as I live and can do anything about it, niggers are gonna stay in their place. Niggers ain’t gonna vote where I live.”7 An all-white jury declared the men innocent of murder.8
In 1957, Willie Edwards Jr. was assaulted by several Klansmen who threatened to castrate him, took him to a bridge, and forced him to jump,9 all for allegedly making advances toward a white woman.10

6Ronald Turner, Remembering Emmett Till, 38 How. L.J. 411, 415 (1995).
7Id. at 417 (citing William Bradford Huie, The Shocking Story of Approved Killing in Mississippi, Look, Jan. 24, 1956, at 50).
8Id. at 419.
9Adam Nossiter, Murder, Memory And the Klan; A Special Report: Widow Inherits a Confession To a 36Year-Old Hate Crime, N.Y. Times, Sept. 4, 1993, at 1, available at http://www.nytimes.com/1993/09/04/us/murdermemory-klan-special-report-widow-inherits-confession-36-year-old-hate.html?pagewanted=all (last visited September 6, 2016).
10Anthony V. Alfieri, Retrying Race, 101 Mich. L. Rev. 1141, 1163 (2003).

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In 1959, Mack Charles Parker, 23, was accused of raping a white woman.11 Three days
before his case was set for trial, a masked mob
took him from his jail cell, beat him, shot him, and threw him in the Pearl River.12

In 1961, Herbert Lee, who worked to register
black voters, was killed by a state legislator
who claimed self-defense and was never arrested.13 Louis Allen, a black man who witnessed the murder, was later also killed.14

11Anders Walker, The Violent Bear It Away: Emmett Till and the Modernization of Law Enforcement in Mississippi, 46 San Diego L. Rev. 459, 492-93 (2009); see also Jack Greenberg, Brown v. Board of Education: An Axe in the Frozen Sea of Racism, 48 St. Louis U. L.J. 869, 877 (2004) (citing Jack Greenberg, Crusaders in the Courts: How a Dedicated Band of Lawyers Fought for the Civil Rights Revolution (1994)).
12Walker, 46 San Diego L. Rev. at 493. 13Paula C. Johnson, Voting Rights and Civil Rights Era Cold Cases: Section Five and the Five Cities Project, 17 Berkeley J. Afr.-Am. L. & Pol’y 377, 384 (2015).
14Id.

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In 1962, Cpl. Roman Ducksworth Jr., a
military police officer stationed in Maryland,
was on leave to visit his sick wife when he was
ordered off a bus by a police officer and shot dead.15 The police officer may have mistaken
Ducksworth for a “freedom rider” who was testing bus desegregation laws.16

In 1962, Paul Guihard, a reporter for a French
news service, was killed by gunfire from a
white mob during protests over the admission of
James Meredith to the University of Mississippi.17

In 1963, William Lewis Moore, a postman
from Baltimore, was shot and killed during a one-man march against segregation.18 Moore
had planned to deliver a letter to the governor of Mississippi urging an end to intolerance.19

15Id. at 387.
16Id.
17Mitchell F. Crusto, The Supreme Court’s “New” Federalism: An Anti-Rights Agenda?, 16 Ga. St. U. L. Rev. 517, 572 (2000) (citations omitted).
18Miles Johnson, A Postman’s 1963 Walk For Justice, Cut Short On An Alabama Road, NPR, April 14, 2013, available at http://www.npr.org/2013/08/14/211711898/a-postmans-1963-walk-for-justice-cut-short-on-analabama-road (last visited September 6, 2016).
19Id.

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In 1963, Medgar Evers, who directed NAACP
operations in Mississippi, was leading a
campaign for integration in Jackson when he was shot and killed by a sniper at his home.20

In 1963, Addie Mae Collins, Denise McNair, Carole Robertson, and Cynthia Wesley were getting ready for church services when a bomb exploded at the Sixteenth Street Baptist Church in Birmingham, Alabama, killing all four of the school-aged girls.21 The church had been a center for civil rights meetings and marches.22
In 1963, on the same day as the bombing killing four girls, Virgil Lamar Ware, 13, was riding on the handlebars of his brother’s bicycle when white teenagers fatally shot him.23 The white youths had come from a segregationist rally held in the aftermath of the Sixteenth Street Baptist Church bombing.24

20Margaret M. Russell, Cleansing Moments and Retrospective Justice, 101 Mich. L. Rev. 1225, 1236 (2003).
21Donald Q. Cochran, Ghosts of Alabama: The Prosecution of Bobby Frank Cherry for the Bombing of the Sixteenth Street Baptist Church, 12 Mich. J. Race & L. 1 (2006).
22Id.
23Tim Padgett and Frank Sikora, The Legacy of Virgil Ware, Time Magazine, Sept. 22, 2003, available at http://content.time.com/time/magazine/article/0,9171,485698,00.html (last visited September 6, 2016).
24Id.

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In 1964, Louis Allen, who witnessed the
murder of civil rights worker Herbert Lee,
endured years of threats, jailings, and harassment in Mississippi. 25 He was making
final arrangements to move north on the day he was killed.26

In 1964, Rev. Bruce Klunder was among the
civil rights activists who protested the building
of a segregated school. Klunder was crushed to death when a bulldozer backed over him.27

In 1964, Henry Hezekiah Dee and Charles
Eddie Moore were killed by Klansmen who
believed the two were part of a plot to arm blacks in the area.28 Their bodies were found
during a massive search for the missing civil
rights workers Chaney, Goodman, and Schwerner, listed immediately below.29

25Anthony Hall, A Stand for Justice-Examining Why Stand Your Ground Laws Negatively Impact African Americans, 7 S. Region Black L. Students Ass’n L.J. 95, 112 (2013) (citation omitted).
26Id. 27William D. Henderson, Demography and Desegregation in the Cleveland Public Schools: Toward A Comprehensive Theory of Educational Failure and Success, 26 N.Y.U. Rev. L. & Soc. Change 457, 557 (2001) (citing Paul Shepard, A Martyr Remembered: 30 Years Ago, Rights Activist Bruce Klunder Died Beneath a Bulldozer Here, Plain Dealer (Cleveland), Apr. 7, 1994, at A1).
28Janis L. McDonald, Heroes or Spoilers? The Role of the Media in the Prosecutions of Unsolved Civil Rights Era Murders, 34 Ohio N.U. L. Rev. 797, 817, 826 (2008) (citation omitted).
29Id.

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In 1964, James Earl Chaney, Andrew Goodman, and Michael Henry Schwerner, young civil rights workers, were arrested by a deputy sheriff and then released into the hands of Klansmen who had plotted their murders.30 They were shot, and their bodies were buried in an earthen dam.31
In 1964, Lt. Col. Lemuel Penn, a Washington, D.C., educator, was driving to D.C. from Georgia when he was shot and killed by Klansmen in a passing car.32

In 1965, Jimmie Lee Jackson was beaten and
shot by state troopers as he tried to protect his
grandfather and mother from a trooper attack on civil rights marchers.33 His death led to the
voting rights march and the eventual passage of the Voting Rights Act.34

30 Paula C. Johnson, Voting Rights and Civil Rights Era Cold Cases: Section Five and the Five Cities Project, 17 Berkeley J. Afr.-Am. L. & Pol’y 377, 384 (2015).
31Id. 32Michal R. Belknap, The Vindication of Burke Marshall: The Southern Legal System and the Anti-CivilRights Violence of the 1960s, 33 Emory L.J. 93, 102-03, 129, 132 (1984).
33Paula C. Johnson, Voting Rights and Civil Rights Era Cold Cases: Section Five and the Five Cities Project, 17 Berkeley J. Afr.-Am. L. & Pol’y 377, 386 (2015).
34See id. at 386-89.

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In 1965, Rev. James Reeb, a Unitarian
minister from Boston, was one of many white
clergymen who joined the Selma marchers after
state troopers attacked protestors at the the Edmund Pettus Bridge.35 Reeb was beaten to
death by white men while he walked down a Selma street.36

In 1965, Viola Gregg Liuzzo, a housewife and
mother from Detroit, drove alone to Alabama to help with a voting rights march in Selma.37 She
was ferrying marchers between Selma and
Montgomery when she was shot and killed by a Klansmen in a passing car.38

In 1965, Oneal Moore was the first black
deputy sheriff for the Washington Parish Sheriff’s Office in Varnado, Louisiana.39 Moore
was killed while on patrol. Mississippi police
arrested Klansman Ray McElveen. Louisiana
prosecutors extradited McElveen and indicted
him for murder but released him within weeks
for insufficient evidence and dropped all charges.40

35 Id. at 384. 36 Id. 37Id. at 384. 38Id. 39Anthony V. Alfieri, Retrying Race, 101 Mich. L. Rev. 1141, 1164 (2003). 40Id.

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In 1966, Samuel Leamon Younge Jr., a
student civil rights activist, was fatally shot by a
white gas station owner following an argument over segregated restrooms.41

In 1966, Vernon Ferdinand Dahmer, a
wealthy black businessman, offered to pay poll
taxes for those who could not afford the fee required to vote.42 The night after a radio
station broadcasted Dahmer’s offer, his home was firebombed.43 Dahmer died later from
severe burns after holding off the Klansmen
with his shotgun long enough for his family to escape.44

41David J. Krajicek, Black Man Killed For Trying To Use Whites-Only Bathroom In Alabama In 1966 Set

Off Protests That Echo Today, Daily News, May 21, 2016, available at

http://www.nydailynews.com/news/national/black-man-killed-bathroom-alabama-1966-article-1.2645287

(last

visited September 6, 2016).

42Joseph W. Gill, Mississippi Justice at Last: The Trials and Convictions of Beckwith, Bowers and Killen, Prosecutor, July/August 2007, at 26, 28.

43Id.

44Id.

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In 1966, Ben Chester White, a sixty-seven
year old black man, was murdered by three
members of the Klan who wanted to lure
Reverend Martin Luther King, Jr. to the Natchez, Mississippi area.45 An all white male jury acquitted one of his killers.46

In 1967, Wharlest Jackson, the treasurer of his
local NAACP chapter, was one of many blacks
who received threatening Klan notices at his job.47 After Jackson was promoted to a position
previously reserved for whites, a bomb was planted in his car.48 It exploded minutes after he left work one day, killing him instantly.49

45Janis L. McDonald, Heroes or Spoilers? The Role of the Media in the Prosecutions of Unsolved Civil Rights Era Murders, 34 Ohio N.U. L. Rev. 797, 809 (2008).
46Id.
47Paula C. Johnson, Voting Rights and Civil Rights Era Cold Cases: Section Five and the Five Cities Project, 17 Berkeley J. Afr.-Am. L. & Pol’y 377, 384 (2015).
48Id.
49Id.

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In 1967, Benjamin Brown, a former civil rights
organizer, was at a protest when he was hit by
stray gunshots from police who fired into the crowd.50

In 1968, Samuel Ephesians Hammond Jr., Delano Herman Middleton, and Henry Ezekial Smith were shot and killed by police who fired on student demonstrators at the South Carolina State College campus.51
In 1968, Dr. Martin Luther King Jr., a Baptist minister, was a major architect of the Civil Rights Movement.52 He was assassinated as he prepared to lead a demonstration in Memphis.53

50Anders Walker, The Violent Bear It Away: Emmett Till and the Modernization of Law Enforcement in Mississippi, 46 San Diego L. Rev. 459, 499 (2009).

51Bass,

J.

(n.d.).

The

Orangeburg

Massacre,

available

at

http://www.jackbass.com/_u_the_orangeburg_massacre__u__25512.htm (last visited September 6, 2016).

52Henry J. Richardson III, From Birmingham’s Jail to Beyond the Riverside Church: Martin Luther King’s Global Authority, 59 How. L.J. 169, 171 (2015).

53Id.

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2. The Election of the United States’ First Black President
Another important historical occurrence that cannot be separated from efforts to abridge minorities’ right to vote is the election of the United States’ First Black President. On February 10, 2007, then-Senator Barack Obama of Illinois, an African American, announced his candidacy for the United States Presidency.54 On November 4, 2008, President Obama became the first African-American President of the United States. President Obama not only captured the presidency, but under his leadership, the Democratic party gained control of the House, the Senate and the White House for the first time since 1995.55 On April 4, 2011, President Obama announced his reelection for the presidency.56 On November 6, 2012, President Obama was reelected President of the United States.57
B. Factual Background
1. The Parties58
Plaintiff, “The Northeast Ohio Coalition for the Homeless” (“NEOCH”), advocates on behalf of the Cleveland homeless, airing and addressing issues related to their lack of housing, employment, and health care. About seventy percent of NEOCH’s in-person homeless applicants are African American. Promoting voting among its members, and among the homeless county-wide, is central to NEOCH’s mission, and NEOCH’s executive director, staff, and volunteers expend substantial resources on voting activities in even-numbered years. Executor Director Brian Davis “spends as much as 80 hours per week around the voting

54 Adam Nagourney & Jeff Zeleny, Obama Formally Enters Presidential Race, New York Times, Feb. 11, 2007.
55 Id.
56 Chris Cillizza & Emi Kolawole, President Obama Announces Reelection Bid, Washington Post, April 4, 2011.
57 David A. Fahrenthold, Obama Reelected As President, Washington Post, November 7, 2012.
58The following facts are taken from the district court opinion. Ohio Coal. for the Homeless v. Husted, No. 2:06-CV-896, 2016 WL 3166251, at *1 (S.D. Ohio June 7, 2016). As stated infra, the Majority has failed to establish that any of the district court’s factual findings are clearly erroneous. By way of reference, I incorporate all of the district court’s factual findings in this dissent. I have highlighted many of those findings here; however, I direct attention in particular to the district court’s finding regarding the Senate Factors, which I also incorporate herein. Husted, 2016 WL 3166251, at *24-32.

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registration deadline on such activities, and one part-time NEOCH staff person devotes 20 hours
per week to early voting turnout efforts.” Because of the challenged laws, NEOCH would “no
longer provide blank cards to its members to vote by mail, but will instead focus [on] . . . driving
people to the polls to vote, which will divert drivers and vehicles from doing other work on
behalf of the organization . . . .” This will also require more financial resources.
In describing the impact of the loss of voting to the NEOCH constituency, the district
court made the following findings of fact:
Were NEOCH’s members unable to vote, their bargaining power vis-à-vis elected officials would be diminished, which would in turn diminish NEOCH’s effectiveness at advocating on their behalf, frustrating its mission and exposing an already vulnerable population to further governmental neglect. The homeless constituents of NEOCH and CCH face challenges that hinder them from asserting their own rights, including mental illness and/or addiction, difficulty maintaining a regular address or phone number, limited access to transportation, and illiteracy or lack of education. They also find it challenging to gain entrance to courtrooms and public buildings due to lack of ID, and many homeless people have a negative relationship with the judicial system or hesitate to get involved in litigation to assert their rights because they are more focused on meeting their immediate needs.
Husted, 2016 WL 3166251, at *7 (citations omitted).
Of the NEOCH homeless members who have voted in primary elections, about eight vote
in the Democratic primary for each one who votes in the Republican primary. Id. In describing
the impact of SB 205 and SB 216, the district court made the following findings of fact:
[E]ight to ten percent of those living in shelters across Cuyahoga County are absolutely illiterate, and the majority read at only a fourth-grade level. Davis feared that the complexity of the form, along with SB 205’s provisions demanding that voters fill out the required fields completely and accurately . . . increased the risk of NEOCH’s members being disenfranchised. In his twenty years working with the homeless, Davis has noticed that homeless persons have pervasive and profound problems filling out the forms. Not being able to read or fill out forms correctly is embarrassing and humiliating for many of NEOCH’s members, and they hesitate to ask for help. NEOCH’s practice with other government forms, such as those relating to Social Security disability and Medicaid benefits, is to read the forms aloud and fill them out on the homeless person’s behalf as a matter of course.

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Husted, 2016 WL 3166251, at *7 (citations omitted).
Plaintiff, Columbus Coalition for the Homeless (“CCH”), advocates for homeless people in Columbus. Sixty percent of homeless people in shelters in Columbus are African American. Because of the challenged laws, CCH will explain new voting requirements to homeless persons at meetings, publishing articles about the requirements, and train its members to educate other homeless persons.
Plaintiff, Ohio Democratic Party (“ODP”), is a political party consisting of 1.2 million members; it seeks to advance the interests of the Democratic Party.59
Defendant Secretary of the State of Ohio functions as Ohio’s chief election officer. Ohio Rev. Code §§ 3501.04, 3501.05. The State of Ohio is an Intervenor.
2. Voting in Ohio
Absentee Voting. Since 2006, all registered voters have the option to vote absentee without any excuse. To receive an absentee ballot, a voter must provide to the Board of the county in which he or she will vote an application consisting of: (1) the voter’s driver’s license number; (2) the voter’s last four digits of their social security number (“SSN-4”); and (3) an approved form of identification. If these requirements are met, the voter receives an absentee ballot; if these requirements are not met, the voter is notified of the deficiency.
A voter may do “in-person absentee voting”—i.e., vote in-person at their county Board during certain days and hours—or, “mail-in absentee voting.” When mailing the form to the Board, the voter must sign and include in the envelope an affirmation declaring the voter is eligible to vote, and if the voter did not provide a driver’s license number or SSN-4, the voter must provide an acceptable form of identification or current state or federal documents that show the name and address of the voter. If there is an error in any of the five fields, the Board mails a Form 11-S, specifying the type of error and informing the voter that the ballot will not be counted unless certain steps are taken—namely, returning the Form 11-S by a certain time.

59The Service Employees International Union (“SEIU”) is also a plaintiff in this matter. SEIU joined NEOCH in initiating the original action against the Secretary in 2006.

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Provisional Voting. Voters who cannot confirm eligibility—and so cannot cast a regular ballot—can complete a provisional ballot. This allows the voter to cast provisionally, “subject to later verification.” This type of voting is available to several categories of voters.
3. Challenged Laws
SB 205 - changes to absentee voting procedures
SB 205 mandates that an ID envelope is considered incomplete if the voter does not fill out the five fields of required information (“five-fields requirement”): (1) name; (2) residence address; (3) date of birth; (4) signature; and (5) some form of ID, which includes the types of acceptable ID required for the absentee ballot application form. If these requirements are not met, the voter will receive a written notice informing them of the nature of the defect and that further information must be provided for the ballot to be counted. Before enactment of SB 205, the information contained in the five fields was merely requested, not required. Pursuant to SB 205, if the information is missing, the ballot “shall not be counted.”
The information must be provided no later than the seventh day after the election. This opportunity to cure—i.e., “cure period”—was longer before the enactment of SB 205; voters had ten days rather than seven days to furnish the information.
SB 216 - changes to provisional voting procedures
Before enactment of SB 216, voters were required to provide only their names, IDs, and signatures in the provisional ballot affirmation form. Pursuant to SB 216, provisional voters must also provide the date of birth and current address. SB 216 also requires voters to print their names on the provisional ballot envelope. Section 3505.182(F) of the provision already imposed a “completeness requirement.” Section 3505.181(F) provides that persons filling out provisional ballots may receive help, but only if they declare to an election official that they are unable to fill out the ballot due to blindness, disability, or illiteracy.
4. The Lead-Up to SB 205 and SB 216
Following the 2010 election, control of the Ohio House of Representatives switched from the Democratic to the Republican Party. “Rather quickly” after that change in leadership, House

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Republicans introduced two bills: (1) a bill to require all Ohioans to show a photo ID when voting and (2) House Bill 194 (“HB 194”), an expansive election-law bill that included “a number of restrictions on voting, including the restrictions that we see in [SBs 205 and 216].” Representative Kathleen Clyde, Ohio General Assemblyperson, testified that the debate over HB 194 was “very partisan and hostile” and “very quick.” HB 194 was ready for the Governor’s signature within two months of its introduction, which Representative Clyde testified marks a significantly shorter time period than usual for the passage of legislation of such complexity. Husted, 2016 WL 3166251, at *13.
In August 2012, in an unprecedented move, the Ohio legislature voted to repeal HB 194 after hundreds of thousands of Ohioans signed petitions to place it on the ballot for a statewide referendum in November 2012. Sixteen other bills proposing voting restrictions were introduced in the 2013-2014 General Assembly, eight of which passed. One bill was passed to shorten the window to gather signatures for referenda, which made it more difficult for citizens to put a referendum on the ballot. Another bill was passed making it easier to purge voters from the registration rolls. Senate Bill 238, which eliminated the first week of the early voting period, also was enacted. Other bills were introduced, but not passed, which would have limited voting in the following ways: shortening the early voting period to 14 days; eliminating early voting hours; limiting the mailing of absentee ballot applications to voters and preventing the paying of return postage on absentee ballot envelopes; instituting a photo-ID requirement; and requiring state universities to provide in-state tuition rates to students if they provided those students with ID that they needed to vote.
None of the proponents of SB 205 cited voter fraud as a justification for the bill. Husted, 2016 WL 3166251, at *13. During the floor debate of SB 205, in contrast to most proposed legislation, there was no data or testimony offered about the need for the measures proposed in SB 205. Id. During committee debate, Representative Matt Huffman, speaking in favor of SB 205, asked “should we really be making it easier for those people who take the bus after church on Sunday to vote.” Id. With respect to both SB 205 and SB 216, Democratic legislators spoke about their concerns that the provisional and absentee ballots of African-American voters would be thrown out disproportionately. Id. at *14.

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As to the cure period, one Board official testified that before the challenged laws went into effect, voters did come in during the eighth, ninth, and tenth days of the cure period to cure their provisional and absentee ballots. Because the Board can receive absentee ballots up until ten days after Election Day, yet the cure period is only seven days, some voters to whom the Board sends a Form 11-S notifying them of their need to cure their ballot will not receive it in time to do so. Id. at *17.
5. Information Requirements
The vast majority of NEOCH’s individual homeless members plan to participate in the 2016 general election. Many of CCH’s members also plan to vote. Many of the organization’s members are illiterate, barely literate, and/or mentally ill. A CHH witness testified that without assistance, a homeless person could not complete the entire form and that due to the complexity and amount of print on the form, some homeless people would just tear it up and say, “you know, to hell with it.” Forms that are, in the words of one Board official, “pretty complex,” with “a lot of wording, a lot of stuff crammed into” them, can confuse even educated, literate voters.
6. Prohibition Against Poll-Worker Assistance
The district court found that the prohibition against poll-worker assistance burdens persons with low literacy, particularly if they are embarrassed to reveal their illiteracy due to the stigma it entails. Plaintiffs introduced ample evidence that many of their members fall into this category and that illiteracy or low literacy levels are prevalent among the homeless. Homeless voters suffer disproportionately from disabilities, including mental illness, which can also hamper their ability to fill out forms. About a third of the homeless individuals with whom NEOCH works have a mental disability, forty-five to fifty percent read at a fourth-grade level, and eight to ten percent are completely illiterate. They may write poorly and have handwriting that is difficult to read or, due to mental illness, they struggle to focus on basic tasks without help. All of these issues combine to create difficulties for homeless voters in filling out forms without assistance like the absentee ID envelope and the provisional ballot affirmation. Moreover, NEOCH Executive Director Brian Davis testified that in his experience with voter mobilization of homeless people in 2014, Board staff members were more hesitant to engage

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with voters and offer help when it appeared to be necessary and that homeless voters have been more likely to make mistakes because of the lack of help. Secretary Husted failed to conduct any review or testing of the effect of the provisional ballot affirmation or the absentee identification envelope on voters with low literacy, despite a suggestion to do so from the League of Women Voters. In sum, the district court concluded that many homeless people face vexing and profound obstacles in exercising the basic right to vote, and the prohibition against poll-worker assistance is likely to exacerbate the problem.
ANALYSIS
A. The Majority Applies the Wrong Standard of Review for Factual Findings
By applying the wrong standard of review, the Majority abandons its role as a court of appellate review and plays the role of the trier of fact. I cannot join this flawed approach.
“On an appeal from a judgment entered after a bench trial, [this court] review[s] the district court’s . . . conclusions of law de novo.” Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488, 492 (6th Cir. 2005). “Mixed questions of law and fact are also subject to de novo review.” T. Marzetti Co. v. Roskam Baking Co., 680 F.3d 629, 633 (6th Cir. 2012) (citing Thoroughbred Software Int’l, Inc. v. Dice Corp., 488 F.3d 352, 358 (6th Cir. 2007)). A district court’s findings of fact are reviewed for clear error. Lindstrom, 424 F.3d at 492. “A finding of fact will only be clearly erroneous when, although there may be some evidence to support the finding, ‘the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’” Roskam Baking Co., 680 F.3d at 633 (quoting United States v. Darwich, 337 F.3d 645, 663 (6th Cir. 2003)). “If the district court’s account of the evidence is plausible in light of the entire record, this court may not reverse that accounting, even if convinced that, had it been sitting as trier of fact, it would have weighed the evidence differently.” Id. (quoting Harlamert v. World Finer Foods, Inc., 489 F.3d 767, 771 (6th Cir. 2007)). “This is so even when the district court’s findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts.” Id. (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985)).

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“In reviewing factual findings for clear error, ‘the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.’” Calloway v. Caraco Pharm. Labs., Ltd., 800 F.3d 244, 251 (6th Cir. 2015) (quoting Fed. R. Civ. P. 52(a)(6)). “[This court] cannot find that the district court committed clear error where there are two permissible views of the evidence, even if we would have weighed the evidence differently.” Id. (quoting King v. Zamiara, 680 F.3d 686, 694 (6th Cir. 2012)).
Here, the district court took great lengths to make well reasoned and supported factual findings. Indeed, the district court’s findings of facts were the product of several years of litigation and a twelve-day bench trial. The findings alone span over fifty pages in length. The findings are supported by statistical, empirical, and testimonial evidence after research was conducted regarding thousands of voters over several years of voting cycles. These findings of fact are critical to analyzing the claims brought pursuant to the Voting Rights Act and the Equal Protection Clause. Some of the most relevant findings of the district court are as follows:
 Across all even-numbered election years, minorities use provisional ballots more often than whites, and in presidential election years, the absentee ballots and provisional ballots of minority voters are more likely to be rejected than those of white voters.
 African-Americans were hindered from participating in the political process.
 Ohio has a history of racially discriminating voting laws.  Racially polarized voting in Ohio is extensive.  There are racialized appeals in politics.  African-Americans are still not represented well in the most important and
visible elected statewide posts.  There is a lack of responsiveness to the particularized needs of African-
American voters.
Yet, the Majority largely ignores these findings and instead applies a de novo standard of review. While the Majority asserts that it is not applying a de novo standard of review, careful review of the Majority opinion reveals that it indeed does. For instance, the Majority took note of the district court’s conclusion that “African-American voters are more likely than white voters to have their absentee or provisional ballots rejected.” “A district court’s conclusion that a challenged electoral practice has discriminatory effect is a question of fact subject to review for

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clear error.” Ortiz v. City of Philadelphia Office of City Com’rs Voter Registration, 28 F.3d 306, 308-09 (3rd Cir. 1994) (citing Thornburg v. Gingles, 478 U.S. 30, 79 (1986)). Yet, the Majority disagreed with this factual finding merely because it sees the record differently. The Majority fails to demonstrate (or even assert) that the district court’s factual findings are not “plausible in light of the entire record.” See Roskam Baking Co., 680 F.3d at 633 (“If the district court’s account of the evidence is plausible in light of the entire record, this court may not reverse that accounting, even if convinced that, had it been sitting as trier of fact, it would have weighed the evidence differently.”) (emphasis added). The Majority did exactly what the Supreme Court has repeatedly said we cannot do, “reverse the finding of the trier of fact simply because it . . . would have decided the case differently.” See Anderson, 470 U.S. at 573. The clear error standard of review “plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently.” Id. We must be mindful that because we are a court of appellate review, we do not decide factual issues de novo. See id. “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”60 Id. at 574.
Because the standard of review is the lens through which courts analyze a particular issue, the Majority’s application of the incorrect standard infects its entire analysis. I cannot join the Majority in its blatant disregard for the standards that guide this court.
B. Because the Majority applied the wrong standard of review – engaging in a de novo review of the facts – and because the district court did not clearly err in finding that SB 205 and 216 disparately impacted African American voters, the district court’s findings of fact and legal conclusions on Plaintiffs’ VRA claims should be affirmed.
The Supreme Court has instructed that the Voting Rights Act “should be interpreted in a manner that provides ‘the broadest possible scope’ in combating racial discrimination.” Chisom
60Clear error review also applies “to the district court’s finding that the [regulations impose] . . . a burden on African Americans’ right to vote in Ohio.” Ohio Democratic Party v. Husted, No. 16-3561, 2016 WL 4437605, at *17 (6th Cir. Aug. 23, 2016) (Stranch, J., dissenting) (citing OFA v. Husted, 697 F.3d 423, 431 (6th Cir. 2012) (concluding that the district court did not clearly err in finding that “early voters, who have disproportionately lower incomes and less education than election day voters,” were burdened by challenged regulation)). Here, the district court concluded that “demanding perfect, or near-perfect, adherence to the five-field requirement on ballots imposes a significant burden for homeless voters, who are some of society’s most vulnerable members.” This conclusion should not be disturbed absent clear error.

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v. Roemer, 501 U.S. 380, 403 (1991) (quoting Allen v. State Bd. of Elections, 393 U.S. 544, 567 (1969)). In vote-denial cases, courts conduct a two-part analysis. See League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 240 (4th Cir. 2014). First, a court determines whether a practice or procedure has a disparate impact on a minority group. See Thornburg v. Gingles, 478 U.S. 30, 44 (1986). Second, if it finds disparate impact, the court assesses whether the “electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.” Id. at 47. In applying the test, the court considers “the totality of circumstances.” 52 U.S.C. § 10301(b).
1. Disparate Impact
Here, the district court did not commit clear error in finding “SB 205 and SB 216 have a disproportionate impact on African-American voters in Ohio, creating greater risk of disenfranchisement of African-Americans than whites.” Husted, 2016 WL 3166251, at *47. The district court further concluded that “[t]he burdens imposed on voters by the five-field requirement, the prohibition on poll-worker assistance, and the reduced cure period fall more heavily on African-Americans than whites.” Id.
The Majority contravenes a clearly erroneous standard of review by reweighing and reassessing the evidence to reach the conclusion that African American’s are not disparately impacted by the new legislation. After years of litigation, a twelve-day trial, and painstakingly combing the record, the district court found that Dr. Timberlake’s data on disparities in provisional and absentee ballot usage and rejection rates reveal that higher minority population share is correlated to higher rates of absentee ballot rejection and provisional ballot usage and rejection. Husted, 2016 WL 3166251, at *47. In support of its conclusion, the district court cited the following findings of fact:
[T]he Court credits Dr. Timberlake’s findings that: (1) in the presidential election years of 2008 and 2012, where minority turnout was higher than during typical midterm elections, minorities’ absentee ballots were rejected at a higher rate than whites’; (2) in 2008, 2010, 2012, and 2014, minorities cast provisional ballots at a higher rate than whites; [This finding is also corroborated by studies upon which Dr. Timberlake relied that showed that African-American voters use provisional

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ballots at a higher rate than white voters nationwide. (See Timberlake Rebuttal Rpt., P-1195 at PTF-243.)] and (3) in 2008, 2010, and 2012, minorities had higher rates of rejection of provisional ballots than whites.
Husted, 2016 WL 3166251, at *48 (emphasis added).
The district court therefore concluded that “because of the passage of the challenged laws, African-American voters are more likely than white voters to have their absentee or provisional ballots rejected.” Id. Despite the district court’s well-reasoned findings, the Majority reinterprets and reweighs the evidence to conclude that Dr. Timberlake’s findings do not support the conclusion that minorities are disparately impacted by the challenged laws.
In so doing, the Majority makes much of the decrease in the use of absentee ballots in the 2012 and 2014 elections. However, again the Majority avers where the district court directly addressed the argument in a manner that was not clearly erroneous. Totally disregarding the district court’s factual determinations and explanations, the Majority discounts the district court’s explanation for the decrease in absentee ballots: “Plaintiffs presented evidence that the gubernatorial election was significantly less competitive in 2014 than in 2010, that overall turnout was lower in 2014 than 2010. Husted, 2016 WL 3166251, at *48. Given this plausible explanation, the district court did not clearly err.
Further, under either standard of review, the Majority’s analysis still falls short. The Majority’s reasons for rejecting the district court’s factual findings are unavailing because the reasons suffer from at least three major analytical flaws. First, the Majority misinterprets the evidence. Second, the Majority fails to apply a totality of the circumstances standard. Third, the Majority errs in its conclusion regarding the undue burden.
First, the Majority misinterprets the evidence. For example, the Majority reasons as follows:
[T]here is scant evidence in the record that minority voters are more likely to cast absentee ballots than white voters. It would therefore be illogical to infer that rejecting absentee ballots for failure to accurately complete address and birthdate fields disproportionately affects minority voters without some other evidence that minority voters are less likely to fulfill that requirement. And . . . the vast

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majority of absentee-ballot rejections are for reasons other than those challenged here.
By relying on the “scant evidence” that minority voters are more likely to cast absentee ballots than white voters, the Majority again misses the mark. While evidence that minorities avail of a voting practice more frequently than whites can support a Section 2 claim, it is not a necessary component for such a claim; minority voters may only show that they are more likely to have their ballots rejected than white voters because of the new requirements, which means they have “less opportunity than” white voters to exercise their right to vote. See Chisom, 501 U.S. at 395.
Second, the Majority applies the wrong legal test by considering the impact of each individual legislative change, rather than considering the disproportionate impact that the new Ohio voting requirements have on minorities as a whole. The Majority engages in a piecemeal freeze frame approach to the evidence finding that each new requirement alone in a vacuum does not meet the standard for disparate impact. Even faced with evidence that minority absentee ballots are rejected more frequently than white absentee ballots, the Majority asserts that this distinction means nothing unless there is “some other evidence” that minority voters are less likely to correctly fill out the birthdate and address requirements. The Majority’s requirement that the plaintiff must establish the disproportionate impact of each requirement imposes too great a burden. This approach does not comport with Section 2’s mandate to consider the “totality of the circumstances.” Indeed, at least one circuit has cautioned against the very approach the Majority takes here. See League of Women Voters of North Carolina v. North Carolina, 769 F.3d 224, 245 (4th Cir. 2014).
In League of Women Voters, the challenged house bill contained several new “electoral mechanisms.” Id. at 242. That house bill, among other things, “imposed strict voter identification requirements, cut a week off of early voting, prohibited local election boards from keeping the polls open on the final Saturday afternoon before elections, and eliminated same-day voter registration.” Id. at 228. The district court analyzed each challenged electoral mechanism separately. Id. at 242. But the Fourth Circuit criticized the district court for “inspecting the parts of [the] [bill] as if they existed in a vacuum.” Id. at 242. Specifically, the district court “failed to

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consider the sum of those parts and their cumulative effect on minority access to the ballot box.” Id. “Doing so is hard to square with Section 2’s mandate to look at the ‘totality of circumstances.’” Id. (emphasis added) (quoting 52 U.S.C. § 10301(b)). We should be mindful that “a panoply of regulations, each apparently defensible when considered alone, nevertheless have the combined effect of severely restricting participation . . . .” Id. (quoting Clingman v. Beaver, 544 U.S. 581, 607–08 (2005) (O’Connor, J., concurring in part and concurring in the judgment)). The Majority’s approach creates the incentive for state legislatures to pass numerous electoral mechanisms so that courts are forced to put on blinders when it comes to understanding the combined effect of these mechanisms.
Third, the Majority errs in its conclusion regarding the undue burden. The Majority states that no undue burden exists because there was no evidence that voters received additional poll-worker assistance before the new requirements. However, disparate impact does not require such exact mathematical quantification. It is enough that there is a high likelihood of such assistance being needed given the interplay of structural inequalities with the challenged provisions as the district court correctly found under the governing standard. The Majority has not and cannot cite any legal precedent for such exacting standards, numbers, or data—nor should any be required. The Majority acknowledges that race is not recorded on ballots, but uses this absence of required information to make the self-invalidating argument that finding racial impact is impossible. This deft maneuver again contravenes the standard of review. Such reasoning and stealth of hand sets a very dangerous precedent.
I, therefore, dissent from the Majority’s finding that the district court erred in finding that the Plaintiffs satisfied the first prong of their vote denial claim—disparate impact—and would affirm.
2. Social and Historical Conditions
Furthermore, the district court’s findings of fact with respect to the second prong—social and historical conditions—were a product of the district court’s careful application of the so-

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called “Senate” factors or “Gingles” factors.61 The factors from Thornburg v. Gingles, 478 U.S.
30, 79 (1986) “might be probative” of a Section 2 violation. See Michigan State A. Philip
Randolph Inst. v. Johnson, No. 16-2071, 2016 WL 4376429, at *7 (6th Cir. Aug. 17, 2016). The
factors include:
(1.) the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process;
(2.) the extent to which voting in the elections of the state or political subdivision is racially polarized;
(3.) the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, antisingle shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;
(4.) if there is a candidate slating process, whether the members of the minority group have been denied access to that process;
(5.) the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process;
(6.) whether political campaigns have been characterized by overt or subtle racial appeals;
(7.) the extent to which members of the minority group have been elected to public office in the jurisdiction;
(8.) whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group; and
(9.) whether the policy underlying the state or political subdivision’s use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.

61“[T]he Supreme Court has also endorsed factors (“the Gingles factors”) enunciated by Congress to
determine whether [disparate] impact is a product of current or historical conditions of discrimination such that it violates Section 2.” Veasey v. Abbott, No. 14-41127, 2016 WL 3923868, at *17 (5th Cir. July 20, 2016); see also Michigan State A. Philip Randolph Inst. v. Johnson, No. 16-2071, 2016 WL 4376429, at *13, n.2 (6th Cir. Aug. 17, 2016).

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See Gingles, 478 U.S. at 36–37. The district court made findings on all but the fourth factor. I summarize below.
Analyzing factors one and three together, the district court noted the strong history of “Ohio’s racially discriminatory voting laws.” Although the district court noted the history of Ohio’s racially discriminatory voting practices from several decades ago, it also discussed recent discriminatory bills passed after the 2008 election.
As to the second factor, the district court noted that exit polls from Ohio voters in the 2012 presidential election suggest significant and substantial patterns of racially polarized voting. “Approximately, 41% of white voters and 96% of African-Americans reported voting for President Barack Obama—an enormous differential.”
As to the fifth Senate factor, the district court noted the barriers faced by African Americans to participation in the political process. Indeed, the district court noted that persistent levels of discrimination faced by African Americans in “employment, housing, income, education and health.”
As for factor six, the district court found that there are racialized appeals in politics in Ohio. Such appeals “serve to discourage or dissuade minority voters and prospective candidates by reinforcing the message that they simply do not belong in the political process and/or by mobilizing white voters in a particular direction by playing on insidious, sometimes explicit and sometimes implicit, stereotypes.” The district court further cited as examples racialized statements made by public officials and referred to disparaging commercials.
Nor was the district court convinced that there was minority representation in Ohio (factor seven). As an example, no African American presently holds the position of Governor, Lieutenant Governor, Attorney General, Auditor, Secretary of State, and State Treasurer. African Americans have occupied each of these positions only five times in the history of the State. Until recently, and for the first time in sixty years, the Governor’s twenty-six-person cabinet was entirely white.

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As to factor eight, the district court found that not many of the “socioeconomic disparities have improved in recent years,” demonstrating Ohio’s lack of responsiveness to the particularized needs of African-American Ohioans. Disparities in unemployment have remained steady as well. Finally, as to factor nine, the district court found that Ohio’s primary justification for the challenged laws at issue is that the they improve “election administration,” but those justifications were tenuous.
Because Ohio does not challenge any of the district court’s factual findings pursuant to Gingles on appeal, those factual findings are binding on this panel. McElwee v. Wharton, 7 F. App’x 437, 438 (6th Cir. 2001) (“The district court’s unchallenged factual findings . . . are binding on this Court.”) (per curiam); see also Shields v. Reader’s Digest Ass’n, Inc., 331 F.3d 536, 542 (6th Cir. 2003) (“[B]ecause [the] [p]laintiff has not directly challenged the district court’s factual conclusions . . . all factual controversies are deemed abandoned on appeal and the district court’s factual findings are hereby upheld.”).
While the Majority never reaches the issue because it holds that Plaintiffs’ Section 2 claim fails in its infancy, a careful review of the district court’s factual findings pursuant to Gingles reveals that the challenged practice is “caused by or linked to ‘social and historical conditions’ that have or currently produce discrimination against members of the protected class.” See Michigan State A. Philip Randolph Inst. v. Johnson, No. 16-2071, 2016 WL 4376429, at *7 (6th Cir. Aug. 17, 2016) (“The essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.” (quoting Thornburg v. Gingles, 478 U.S. 30, 47 (1986))). Accordingly, I would affirm the district court’s holding with respect to the Section 2 Voting Rights Act claim.
Furthermore, I would affirm the district court’s findings with respect to both prongs of the vote denial claims as they apply to the restrictions on poll workers and the reduced time to cure. In support of its findings of vote denial on the poll worker restrictions and the reduced time to cure, the district court stated the following:
Because low literacy levels are also correlated with substandard education (Timberlake Tr., Vol. 5 at 73), and the Court has credited Dr. Timberlake’s

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findings that African-Americans suffer from lower educational attainment than whites in Ohio, the Court concludes that African-Americans would also suffer from higher costs associated with the five-field requirement and the prohibition on poll-worker assistance because they would face disproportionately more challenges filling out the forms. Because African-Americans move more frequently than whites, they may be more likely to be forced to vote provisionally. (Id. at 67-68; see also Hood Tr., Vol. 10 at 121, 124.) They are also more likely to be homeless. (Davis Tr., Vol. 4 at 186.) And because they are more likely to have inflexible schedules or lack access to a car, they are more likely to be burdened by a shorter cure period for absentee and provisional ballots. (Timberlake Tr., Vol. 5 at 61-62.) All of these effects of discrimination against African-Americans combine to create an inequality in their opportunities to participate in the political process.
Husted, 2016 WL 3166251, at *52.
Given these structural inequalities and the impact of the poll worker restrictions and the shortened cure period, the district court did not clearly err.
C. The Majority Fundamentally Misunderstands the Concept of Disparate Impact
Additionally, the Majority fundamentally misunderstands the concept of disparate impact. A particular practice has a disparate impact on persons of a protected class when that practice has a “disproportionate” impact on the members of the protected class. See, e.g., Alexander v. Local 496, Laborers’ Intern. Union, 177 F.3d 394, 419 (6th Cir. 1999) (“In a socalled ‘disparate impact’ case, the plaintiffs need not prove that the defendant intended to discriminate; instead, plaintiffs must prove that a particular [] practice, although neutral on its face, has caused a disproportionate adverse effect on a protected group.”) (emphasis added); Chrisner v. Complete Auto Transit, Inc., 645 F.2d 1251, 1257 (6th Cir. 1981).
In some instances, after simply counting the number of persons affected by the new Ohio voter identification laws, without making any comparisons between minority and non-minority voters to assess the disproportionality of those numbers, the Majority concludes that the voting practices in Ohio do not have a disparate impact because only a small number of voters are affected by the new laws. Disproportionality, by definition, requires assessing racial disparities. See Alexander, 177 F.3d at 419 (noting that “statistical evidence is not absolutely essential in proving a disparate impact case,” but there “must be proof of disparity using the proper standards

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of comparison”). By relying on the sheer number of voters affected by the law in isolation, without making any relevant comparisons, the Majority fails to engage in any disparate impact analysis at all. The Majority merely engaged in a counting exercise that gets us nowhere in terms of analyzing the discriminatory impact of a rule or practice.
Next, the Majority concludes that “[a] law cannot disparately impact minority voters if its impact is insignificant to begin with.” The text of the Voting Rights Act itself proves this statement to be false. Section 2 of the Voting Rights Act provides, in relevant part, that a violation is established if:
. . . based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.
Chisom v. Roemer, 501 U.S. 380, 395 (1991) (quoting Sect. 2, Voting Rights Act). Tellingly, the Majority cites no legal authority for the proposition that in order for a practice to be discriminatory, its “impact” must also be “significant.” Quite simply, a violation of Section 2 of the Voting Rights Act does not turn on whether people are being discriminated against in “significant” numbers, it turns on whether minorities have “less opportunity than” non-minorities to vote. See id.62 Moreover, although the ballots of minorities and the homeless may be insignificant to the Majority, they are not insignificant to the basic principles of the VRA, which does not require a certain number of affected persons, but looks instead at the impact on minorities as compared to non-minorities.
D. The Majority Applies the Wrong Legal Standard for the Equal Protection Claim
With respect to the Equal Protection Clause claim, I agree with the Majority’s implicit rejection of Ohio’s argument that rational-basis review applies. I further agree that the Anderson/Burdick balancing test applies instead. But the Majority’s application of the test
62Further, the impact of SB 205 and 216 was certainly significant enough for the Ohio legislature to take action, for legislators to invest the time and energy in getting the laws passed, in defending a claim in a twelve-day trial, and absorbing the time of this court on appeal. The Majority’s claim that the impact of the new legislation is insignificant is belied by reality.

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cannot be reconciled with Sixth Circuit precedent. The Majority takes issue with the district court’s consideration of the burdens imposed by the challenged provisions on NEOCH’s and CCH’s homeless members. The Majority relies in part on Justice Scalia’s concurrence in Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008), which states that “what petitioners view as the law’s several light and heavy burdens are no more than the different impacts of the single burden that the law uniformly imposes on all voters.” See Crawford, 553 U.S. at 205 (Scalia, J. concurring in judgment) (second emphasis added). The Majority then proceeds to “consider the burden that the provisions place on all Ohio voters.” (Emphasis added).
The Majority’s approach is incorrect. In Crawford, a plurality of the Supreme Court held that an Indiana statute that required citizens voting in person on election day or casting in person a ballot before election day was constitutional. Crawford, 553 U.S. at 185, 204. We have previously held that Justice Stevens’ opinion is controlling for Marks63 purposes, see Obama for America v. Husted, 697 F.3d 423, 441 n.7 (6th Cir. 2012) (“OFA”), and Justice Stevens, quite simply, did not make the same assertion that Justice Scalia made. See also Ohio State Conference of N.A.A.C.P. v. Husted, 768 F.3d 524, 544 (6th Cir. 2014), vacated sub nom. Ohio State Conference of The Nat. Ass’n For The Advancement of Colored People v. Husted, No. 143877, 2014 WL 10384647 (6th Cir. Oct. 1, 2014) (“A majority of the justices in Crawford either did not expressly reject or in fact endorsed the idea that a burden on only a subgroup of voters could trigger balancing review under Anderson–Burdick.”).
In Crawford, a plurality of the Supreme Court acknowledged that, although for most voters it is not a substantial burden to comply with a photo ID requirement, a “somewhat heavier burden may be placed on a limited number of persons . . . includ[ing] elderly persons born out of State, who may have difficulty obtaining a birth certificate[,] . . . homeless persons[,]” and others. 553 U.S. at 198-99. Although the Crawford Court rejected the plaintiffs’ argument that the law should be enjoined on the basis of the burden to that smaller group of voters, it did so because the record in that case did not contain evidence of the specific burdens imposed on those vulnerable groups. Id. at 201-02. Because the record was virtually devoid of evidence that
63Marks v. United States, 430 U.S. 188, 193 (1977) (“When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.”)

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would have allowed the Court to measure the “magnitude of the burden on this narrow class of voters or the portion of the burden imposed on them that is fully justified,” id. at 200, the Court considered only the burden on all Indiana voters, which it determined was only “limited.” Id. at 203.
That the Majority here has decided to pluck one line from Justice Scalia’s concurrence to identify the appropriate legal test for analyzing Plaintiffs’ equal-protection claim, is deeply misguided. The Majority, as a result, applies the wrong standard. Under the Majority’s approach, no longer must we inquire as to how a voting regulation affects different groups of people—something I thought was the cornerstone of equal-protection jurisprudence. Instead, we must inquire whether a voting regulation burdens everyone, and only when it does, will that regulation be deemed unequal. This conclusion defies both logic and common sense.
Even if simple logic did not counsel against the Majority’s approach, then our circuit precedent surely does. See OFA, 697 F.3d at 431. In OFA, the challenged regulation in effect reduced the number of days available for in-person voting by three days. Id. This court concluded that the district court did not clearly err in finding that “early voters, who have disproportionately lower incomes and less education than election day voters,” were burdened by the challenged regulation. Id. Put another way, this court studied the impact of the challenged law on certain groups. See id. Quite simply, despite the Majority’s assertions that a law must impact everyone for it to violate the Equal Protection Clause, Crawford does not dictate or mandate such an analytical framework.
In sum, I would use the Anderson/Burdick balancing test to examine whether Ohio’s interests outweigh the burdens imposed on Ohioan homeless individuals64 on the basis of the three new requirements: (1) the birthdate and address forms requirement; (2) the reduction in the cure period; and (3) the restrictions on poll-worker assistance. As to the first requirement, the Majority and I are in agreement that the address and birthdate forms requirement violates the Equal Protection Clause, even though I disagree with the Majority’s analytical approach in

64The district court found that approximately 60% of the homeless persons in shelters in Columbus, Ohio are African American and approximately 70% of NEOCH’s in-person homeless applicants are African American.

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reaching that conclusion. Nevertheless, because the first requirement is not a point of contention, I focus on the remaining two.
Reduction in cure period. The district court ruled that the reduction of the cure period, for absentee voters, would be “especially burdensome for voters with low literacy who may need to seek assistance in reading the Form 11-S65 and filling it out before returning it to the Board.” Thus, “[l]imiting the window in which they may cure a deficient ballot imposes a significant burden on homeless, impoverished, and illiterate voters.”66 Husted, 2016 WL 3166251, at *39. For provisional voters, “the opportunity to cure . . . ballots is limited to providing ID that they failed to provide when they voted . . . .” Id. at 18.
Ohio characterizes the limitation as an “inconvenience” that does not constitute a burden. Ohio cites numerous testimonies indicating that few individuals avail of the cure-period in any case, and further, “Plaintiffs identified no person harmed by the three-day difference.” In proffering an interest, Ohio states that the reduction serves to provide a “workable stopping point before election officials must begin the official canvas” eleven days after Election Day. The district court was not persuaded by the interest. “Of the twenty-one Board officials who testified at trial, not one indicated that he or she had experienced any inconvenience or increased cost during the pre-2014 ten-day cure period, or stated that the county Board needed extra time between the conclusion of the cure period and the start of the canvass to address any particular matters.” No board official mentioned any “specific task[] that needed to be conducted between the end of the cure period and the beginning of the canvass.”
Ohio contends that because the cure period was rarely used, reduction of that period was justified. But that argument cuts the other way—if that period was rarely used, then it would not matter if the cure period remained at ten days rather than at seven days. Given that no board official testified that a “specific task” needed to be conducted before the canvas, it appears that Ohio has not struggled to cope with a ten-day cure period. In these circumstances, Ohio has not
65If there is an error in any of the five fields on an absentee ballot, the Board mails a “Form 11-S,” specifying the type of error and informing the voter that the ballot will not be counted unless certain steps are taken—namely, returning the Form 11-S by a certain time.
66Notably, it is unclear what channels the homeless individuals would use to receive the Form 11-S in the mail in time to cure the defect because these individuals are often transient with no fixed address.

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shown that its interest outweighs the burdens imposed. See OFA, 697 F.3d at 434 (“With 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[.]’”). It should be noted that defendant bears the burden of justification. Because the defendant failed to meet even the minimum threshold of that burden, the district court did not clearly err.
The Majority says that there is no need for Ohio to wait for a problem to arise in the last three days of the cure period in order to act; however, that analysis misses the point. If there was no problem in the last three days, the action lacks any justification under any standard of review. Lacking any justification, the district court’s findings were simply not erroneous.
Prohibition against poll-worker assistance. We must “weigh the character and magnitude of the asserted injury to the” protected rights against “the precise interests put forward by the State as justifications for the burden imposed by its rule.” See Burdick v. Takushi, 504 U.S. 428, 434 (1992). The district court made careful factual findings that Plaintiffs’ constituents were illiterate, barely literate, or suffering from disability or mental illness, which limited their ability to complete basic voting-related tasks. Although it is true that illiterate and disabled workers may receive assistance in filling out the form, an official testified that “Board staff members were more hesitant to engage with voters and offer help when it appeared to be necessary.” Thus, in light of the district court’s crediting this testimony, the district court’s finding that the limitation of poll-worker assistance was burdensome is not clearly erroneous. The district court then found lacking the State’s justifications for preventing poll workers from assisting voters who do not affirmatively ask for help because they are illiterate or disabled. Husted, 2016 WL 3166251, at *39. The district court’s findings were not clearly erroneous.
A close reading of the Majority’s opinion reveals that the Majority’s calibrations are misaligned. On the one hand, the Majority concludes that because there is no evidence of voter fraud, Ohio’s asserted interest in protecting against voter fraud does not outweigh the burden placed on the voters by the address and birthdate requirements. Yet in the same breath, the Majority concludes that “Ohio’s legitimate interest in minimizing election-official mistakes by

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ensuring that they are not overburdened and do not fill in others’ personal information justifies the limitation placed on poll-worker assistance” even though there is no evidence that the poll workers were overburdened or that there were problems with others filling in personal information.67
Moreover, the Majority reiterates that the impact on voters is small and insignificant. However, the Majority fails to cite any legal precedent that mandates a certain mathematical quantum because none is required. Furthermore, the complete lack of sensitivity and unbridled privilege with which the Majority exercises its view of the trivial is exactly what led to the constitutional and statutory protections at issue in this case. Still further, as I have stated throughout this dissent, the stakes of these proceedings are hardly small, insignificant, or trivial; instead, the impact is worthy of countless hours of the Ohio congressional time, energy, and efforts in not only passing these restrictive measures, but defending them. The rush to set forth and pass these measures belies any claim that what is at stake is slight, minor, unimportant, trifling, trivial, insignificant, inconsequential, negligible, nugatory, or infinitesimal. Similarly, the Majority continues to point out that the vast Majority of challenged ballots are struck for reasons that do not involve SB 205 and 216; however, our inquiry is the impact on those voters whose ballots SB 205 and 216 does disparately affect.
In sum, because I conclude that the burdens of the challenged laws outweigh the government’s purported interests under the Anderson/Burdick balancing test, I would affirm the district court’s judgment in favor of Plaintiffs with respect to the Equal Protection Clause claim.
CONCLUSION
The Majority applies the wrong legal tests, misapprehends the basic concept of disproportionality, and applies the wrong standard of review. Most disturbingly, the Majority substitutes its own view of the record for the carefully decided and supported factual findings of the district court. As the Supreme Court has cautioned, a “reviewing court oversteps the bounds of its duty . . . if it undertakes to duplicate the role of the lower court.” Anderson, 470 U.S. at
67While the state “need not justify its laws with ‘elaborate, empirical verification,’” Citizens for Legislative Choice v. Miller, 144 F.3d 916, 924 (6th Cir. 1998), the state does need to assert a real and “precise” interest against which the citizens’ right to vote must be weighed. See Burdick v. Takushi, 504 U.S. 428, 434 (1992).

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573. “The trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise.” Id. at 574. “[P]arties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one; requiring them to persuade three more judges at the appellate level is requiring too much.” Id. at 575. Today, the Majority disregards the Supreme Court’s wellestablished principles and substitutes its own view of the record for the carefully decided and supported factual findings of the district court.
The birth of this Nation was founded upon the radical principle that we, as a people, would govern ourselves. And voting is the ultimate expression of self-government. Instead of making it easier for all persons, unrestrained and unfettered, to exercise this fundamental right to vote, legislators are making it harder. States are audaciously nullifying a right for which our ancestors relentlessly fought and—in some instances—even tragically died. From that struggle came the Equal Protection Clause of the Fourteenth Amendment, and later, the Voting Rights Act. It is this court’s responsibility to enforce both the Constitution and the statute, and thereby safeguard this precious right to vote. In my opinion, the Majority has failed to do just that. The Majority takes the position that unless a rule affects non-minorities, it does not run afoul of the Equal Protection Clause of the Fourteenth Amendment. This baffling position distorts the Equal Protection Clause so much so that the clause becomes unrecognizable, unenforceable, and fundamentally, unequal. For years, states have been (both stealthily and overtly) erecting hurdles to the right to vote. And the votes of those who are actually able to surmount those hurdles are often diluted through Gerrymandering. These states’ actions of implementing rules and redrawing districts in an effort to restrict minorities’ access to the ballots is another reminder that history repeats itself. It is yet another reminder that many people hold the misguided belief that only the privileged majority should be granted access to political power and adequate representation.
With every gain in equality, there is often an equally robust and reactive retrenchment. We must never forget that constant dialectical tension. For every action, there is a reaction. The Majority’s decision is a fateful reminder that we can never fool ourselves into believing that we have arrived as a nation. Our decision today, and more decisions like this one, will undoubtedly

Case: 2:06-cv-00896-ALM-TPK Doc #: 792 Filed: 09/13/16 Page: 70 of 71 PAGEID #: 5398(710 of 71)

Nos. 16-3603/3691

Northeast Ohio Coalition, et al. v. Husted, et al.

Page 68

shape the future of this Nation because deciding who gets to vote inevitably affects who will become our leaders—a determination that is grounded in the principles long cherished and long pursued by our Founding Fathers. This is exactly why so many are actively seeking to etch away at the right to vote in assembly halls across this nation. These efforts are hardly insignificant or negligible. They are, for their proponents, necessary and highly deliberate. It is my hope that when future generations look back on these decisions, they conclude that we were on the right side of history. But today I fear that we were not.
For these reasons, I cannot concur with my colleagues in full. In the interest of clarity, I would affirm the district court and permanently enjoin the enforcement of portions of SB 205 and 216 that: require boards to reject the ballots of absentee and provisional voters who do not accurately complete the address and birthdate fields; reduce the cure period to seven days; prohibit most forms of poll-worker assistance; and require provisional voters to print their names on the affirmation form.

Case: 2:06-cv-00896-ALM-TPK Doc #: 792 Filed: 09/13/16 Page: 71 of 71 PAGEID #: 5398(721 of 71)

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Nos. 16-3603/3691

NORTHEAST OHIO COALITION FOR THE HOMELESS; COLUMBUS COALITION FOR THE HOMELESS; OHIO DEMOCRATIC PARTY,
Plaintiffs - Appellees/Cross - Appellants,
v.

FILED
Sep 13, 2016
DEBORAH S. HUNT, Clerk

JON HUSTED, in his official capacity as Secretary of State of Ohio,
Defendant - Appellant/Cross - Appellee,

STATE OF OHIO, Intervenor - Appellant/Cross - Appellee.

Before: KEITH, BOGGS, and ROGERS, Circuit Judges.

JUDGMENT

On Appeal from the United States District Court for the Southern District of Ohio at Columbus.

THIS CAUSE was heard on the record from the district court and was argued by counsel.

IN CONSIDERATION WHEREOF, it is ORDERED that the plaintiffs’ undue-burden claim only as it relates to the requirement imposed by Senate Bill 205 that in-person and mail-in absentee voters complete the address and birthdate fields on the identification envelope with technical precision is AFFIRMED. IT IS FURTHER ORDERED that the district court’s holdings that certain other challenged provisions of Senate Bill 205 and 216 create an undue burden and disparately impact minority voters are REVERSED. The district court’s other holdings are AFFIRMED.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

 
 Case: 2:06-cv-00896-ALM-TPK Doc #: 795 Filed: 10/12/16 Page: 1 of 4 PAGEID #: 53995

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

THE NORTHEAST OHIO COALITION FOR THE HOMELESS, et al., Plaintiffs, v.
JON HUSTED, in his official capacity as Secretary of the State of Ohio, Defendant, &
STATE OF OHIO, Intervenor-Defendant.

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

SERVICE EMPLOYEES

:

INTERNATIONAL UNION, LOCAL 1, :

et al.,

: Case No. 2:12-CV-562

:

Plaintiffs,

: JUDGE ALGENON L. MARBLEY

:

v.

: Magistrate Judge Terence P. Kemp

:

JON HUSTED, et al.,

:

:

Defendants.

:

ORDER

This matter is before the Court for resolution of pending fees litigation in The Northeast

Ohio Coalition for the Homeless, et al., v. Husted, et al., Case No. 2:06-cv-896 (“NEOCH”), and

Service Employees International Union, Local 1, et al., v. Husted et al., Case No. 2:12-cv-562

(“SEIU”).

1

Case: 2:06-cv-00896-ALM-TPK Doc #: 795 Filed: 10/12/16 Page: 2 of 4 PAGEID #: 53996

In 2012 and 2013, the parties engaged in litigation in these cases regarding several topics

including: (1) the continuing validity of the NEOCH Consent Decree; (2) Ohio’s treatment of

correct-location, wrong-precinct provisional ballots; and (3) extension of the NEOCH Consent

Page 2 of 7 Decree beyond its original 2013 expiration date. On September 29, 2014, the Court

granted with modification Plaintiffs’ motions for attorneys’ fees for some of their work on these

matters. NEOCH Doc. 426; see also NEOCH Doc. 444 (approving Plaintiffs’ bill of costs). On

appeal, the Sixth Circuit affirmed in part, vacated in part, and remanded the matter for further

consideration of select issues. See generally NEOCH v. Husted, — F.3d —, 2016 WL 4073489

(6th Cir. Aug. 1, 2016).

The parties have agreed to resolve without further litigation the remaining fees issues for

that particular work—including the proper “fees for fees” award for time spent litigating fee

liability both before this Court and on appeal. The State Defendants agree to pay fees and costs

in the following amounts:

The Chandra Law Firm:

$424,242.11

McTigue & Colombo:

$104,308.94

Altshuler Berzon:

$1,820,000.00

Porter, Wright, Morris & Arthur: $133,429.29

Advancement Project:

$4,713.57

Hunter, Carnahan:

$131,446.87

TOTAL

$2,618,140.78

The above amounts serve as a global resolution of attorneys’ fees and costs for time spent

on the 2012 and 2013 litigation, including time spent litigating the proper amount of attorneys’

fees and costs. The parties agree there will be no further attorneys’ fees and costs motions

2

Case: 2:06-cv-00896-ALM-TPK Doc #: 795 Filed: 10/12/16 Page: 3 of 4 PAGEID #: 53997
relating to litigation/activities undertaken before the present date in SEIU. The parties agree there will be no further attorneys’ fees and costs motions relating to pre-2014 litigation/activities in NEOCH. This Order does not resolve any potential fees relating to the Second Supplemental Complaint (NEOCH Doc. 453), subsequent litigation in NEOCH related to the Second Supplemental Complaint, consent-decree monitoring from 2014 forward, and any work related to Page 3 of 7 seeking a post-2016 consent-decree extension or modification. Plaintiffs agree that this Order resolves all attorneys’ fees and costs in NEOCH and SEIU that Plaintiffs have sought or could have sought for work performed before the present date, except those matters mentioned in the previous sentence.
Accordingly, the Court GRANTS Plaintiffs’ attorneys’ fees and costs in the amounts detailed above. In light of this Order, no attorneys’ fees or costs motions are presently pending in either case.
Thus, in NEOCH, this Order resolves the following pending motions (and all additional fee/cost requests arising out of those motions and the related appeals): • Motion of Plaintiffs NEOCH, CCH, and ODP for attorneys’ fees and costs related to obtaining an extension of the Consent Decree (NEOCH Doc. 388); • Plaintiffs’ Motion for attorneys’ fees and costs for work in defense of Consent Decree (NEOCH Doc. 393); • Plaintiffs’ Supplemental Fees Motion for preparing and defending attorneys’- fees motion related to work obtaining Consent-Decree extension (NEOCH Doc. 431).
In SEIU, this Order resolves the following pending motion (and all additional fee/cost requests arising out of that motion and the related appeals): • Plaintiffs’ Motion for attorney fees (SEIU Doc. 120)
The Court DENIES as MOOT Parties’ Stipulated Motions for Extension of Time to File Stipulated Judgment Entry Regarding Fees (NEOCH Doc. 793; SEIU Doc. 154).
3

Case: 2:06-cv-00896-ALM-TPK Doc #: 795 Filed: 10/12/16 Page: 4 of 4 PAGEID #: 53998

IT IS SO ORDERED. Dated: October 12, 2016

s/Algenon L. Marbley ALGENON L. MARBLEY UNITED STATES DISTRICT COURT

4

 
 Case: 2:06-cv-00896-ALM-CMV Doc #: 828 Filed: 03/27/18 Page: 1 of 4 PAGEID #: 55677

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

THE NORTHEAST OHIO COALITION FOR THE HOMELESS, et al.
Plaintiffs, v.
OHIO SECRETARY OF STATE, et al. Defendants.

: : : : CASE NO. 2:06-cv-896 : : Judge Algenon L. Marbley : : Magistrate Judge Chelsey M. Vascura : :

STIPULATED JUDGMENT ENTRY REGARDING SETTLEMENT OF ATTORNEYS’ FEES AND COSTS

This matter is before the Court for resolution of pending fees litigation in The Northeast Ohio Coalition for the Homeless, et al., v. Husted, et al., Case No. 2:06-cv-896. This litigation, including all appeals, is referred to herein as the “NEOCH litigation.” In 2015 to 2017, the parties engaged in NEOCH litigation regarding several topics including (1) Senate Bill 205; (2) Senate Bill 216; and (3) other election laws and directives. See 2nd Supp. Compl., Doc. 453. After a bench trial in March 2016, the Court entered a decision and judgment. Thereafter, the parties cross-appealed and the Sixth Circuit Court of Appeals issued a decision on September 13, 2016. See generally NEOCH v. Husted, Case No. 16-3603/3691 (6th Cir. Sept. 13, 2016).
The parties have agreed to resolve without further litigation the fees and costs for the NEOCH litigation. This Stipulated Judgment globally resolves all attorneys’ fees and costs that Plaintiffs have sought or could have sought for work performed in the NEOCH litigation and in

Case: 2:06-cv-00896-ALM-CMV Doc #: 828 Filed: 03/27/18 Page: 2 of 4 PAGEID #: 55678

appeals from the NEOCH litigation, including all attorneys’ fees and costs expended pursuing costs and fees.
The State Defendants agree to pay fees and costs in the following amounts:

Porter, Wright, Morris & Arthur LLP: The Chandra Law Firm LLC: McTigue & Colombo LLC: TOTAL:

$558,428.15 $359,074.06 $182,497.79 $1,100,000

Within 60 days of March 8, 2018 (on or before May 7, 2018), one half of the monies will be paid to each firm. The second half will be paid on or before August 15, 2018.
The above amounts serve as a global resolution of all attorneys’ fees and costs for time spent on the NEOCH litigation, including all time spent pursuing attorneys’ fees and costs. The parties agree there will be no further attorneys’ fees and costs motions in this case.
Accordingly, the Court GRANTS Plaintiffs’ attorneys’ fees and costs in the amounts detailed above. This Order resolves all fees and costs in this case.

Date:

IT IS SO ORDERED

ALGENON L. MARBLEY U.S. DISTRICT COURT JUDGE

Case: 2:06-cv-00896-ALM-CMV Doc #: 828 Filed: 03/27/18 Page: 3 of 4 PAGEID #: 55679

On our clients’ behalf, and with full authority, we so stipulate and agree to abide by the terms of this judgment entry.
Dated:

s/ Subodh Chandra (per email authorization) SUBODH CHANDRA (0069233)
s/ Caroline Gentry (per email authorization) CAROLINE GENTRY (0066138)
Counsel for Plaintiffs NEOCH and Columbus Coalition for the Homeless
s/ Donald J. McTigue (per email authorization) DONALD J. MCTIGUE (0022849) Counsel for Plaintiff-Intervenor Ohio Democratic Party

s/ Steven T. Voigt STEVEN T. VOIGT (0092879)
Counsel for Defendants

Case: 2:06-cv-00896-ALM-CMV Doc #: 828 Filed: 03/27/18 Page: 4 of 4 PAGEID #: 55680

Dated:
Respectfully submitted,
s/ Subodh Chandra (per email authorization) SUBODH CHANDRA (0069233) Trial Attorney DONALD P. SCREEN (044070) ASHLIE CASE SLETVOLD (0079477) SANDHYA GUPTA (0086052) THE CHANDRA LAW FIRM LLC 1265 W. 6th St., Suite 400 Cleveland, OH 44113-1326 Tel: 216-5781700 | Fax: 216-578180 subodh.chandra@chandralaw.com donald.screen@chandralaw.com ashlie.sletvold@chandralaw.com sandhya.gupta@chandralaw.com
s/ Caroline Gentry (per email authorization) CAROLINE H. GENTRY (0066138) ANA P. CRAWFORD (0090581) PORTER,WRIGHT,MORRIS &ARTHUR LLP One South Main Street, Suite 1600 Dayton, OH 45402 Tel: 937-4496748 | Fax: 937-449-6820 cgentry@porterwright.com acrawford@porterwright.com Counsel for Plaintiffs NEOCH and Columbus Coalition for the Homeless
s/ Donald J. McTigue (per email authorization) DONALD J. MCTIGUE (0022849) Trial Attorney J. COREY COLOMBO (0072398) DEREK S. CLINGER (0092075) MCTIGUE & COLOMBO, LLC 545 East Town Street Columbus, OH 43215 Tel: 614263-7000 | Fax: 614-263-7078 dmctigue@electionlawgroup.com ccolombo@electionlawgroup.com dclinger@electionlawgroup.com Counsel for Intervenor-Plaintiff Ohio Democratic Party

s/ Steven T. Voigt STEVEN T. VOIGT (0092879) SARAH E. PIERCE (0087799) ZACHERY P. KELLER (0086930) Assistant Attorneys General Constitutional Offices Section 30 East Broad Street, 16thFloor Columbus, OH 43215-3428 Tel: 614-466-2872 | Fax: 614-728-7592 steven.voigt@ohioattorneygeneral.gov sarah.pierce@ohioattorneygeneral.gov zachery.keller@ohioattorneygeneral.gov
Counsel for Defendants

 
 Case: 2:06-cv-896 As of: 05/19/2020 07:15 PM EDT 1 of 82
AttySealedAcc,CLOSED,CONSOL,PROTO,REMAND−COAP
U.S. District Court Southern District of Ohio (Columbus) CIVIL DOCKET FOR CASE #: 2:06−cv−00896−ALM−CMV

The Northeast Ohio Coalition for the Homeless et al v. Husted Assigned to: Judge Algenon L. Marbley Referred to: Magistrate Judge Chelsey M. Vascura Case in other court: 6th Circuit, 09−04111
USCA 6th Circuit, 11−03035 USCA 6th Circuit, 11−03036 USCA 6th Circuit, 11−03037 Sixth Circuit, 12−03916 Sixth Circuit, 12−04354 Sixth Circuit Court of Appeals, 14−04083 USCA 6th Circuit, 14−04132 6th Circuit, 15−03295 Sixth Circuit Court of Appeals, 15−03380 Sixth Circuit Court of Appeals, 16−03603 Sixth Circuit Court of Appeals, 16−03691 Cause: 42:1983 Civil Rights Act Interested Party

Date Filed: 10/24/2006 Date Terminated: 04/09/2018 Jury Demand: None Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question

Subodh Chandra

represented by Alphonse Adam Gerhardstein Gerhardstein & Branch Co. LPA 441 Vine Street Suite 3400 Cincinnati, OH 45202 513−621−9100 Fax: 513−345−5543 Email: agerhardstein@gbfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Joseph Kulewicz Vorys Sater Seymour & Pease − 2 PO Box 1008 52 E Gay Street Columbus, OH 43216−1008 614−464−6400 Email: jjkulewicz@vssp.com ATTORNEY TO BE NOTICED

Interested Party Thomas E. Niehaus

represented by W Stuart Dornette Taft Stettinius & Hollister − 1 425 Walnut Street Suite 1800 Cincinnati, OH 45202−3957 513−357−9367 Fax: 513−381−2838 Email: dornette@taftlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Beth A. Bryan Taft Stettinius & Hollister 425 Walnut St. Ste. 1800 Cincinnati, OH 45202

Case: 2:06-cv-896 As of: 05/19/2020 07:15 PM EDT 2 of 82

Interested Party Louis W. Blessing, Jr.
Plaintiff The Northeast Ohio Coalition for the Homeless

513−387−9617 Email: bryan@taftlaw.com ATTORNEY TO BE NOTICED
John B Nalbandian Taft Stettinius & Hollister − 1 425 Walnut Street Suite 1800 Cincinnati, OH 45202−3957 513−357−9367 Fax: 513−357−9634 Email: Nalbandian@taftlaw.com ATTORNEY TO BE NOTICED
represented by W Stuart Dornette (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Beth A. Bryan (See above for address) ATTORNEY TO BE NOTICED
John B Nalbandian (See above for address) ATTORNEY TO BE NOTICED
represented by Subodh Chandra The Chandra Law Firm, LLC 1265 W 6th Street Suite 400 Cleveland, OH 44113−1326 216−578−1700 Fax: 216−578−1800 Email: Subodh.Chandra@chandralaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ana P. Crawford Porter Wright Morris & Arthur − 3 PO Box 1805 One S Main Street Suite 1600 Dayton, OH 45401−1805 937−449−6726 Fax: 937−449−6820 Email: acrawford@porterwright.com ATTORNEY TO BE NOTICED
Andrew J Gottman Porter Wright Morris & Arthur LLP One South Main Street Suite 1600 Dayton, OH 45402−2028 937−449−6790 Fax: 937−449−6820 TERMINATED: 06/19/2012
Ashlie Case Sletvold Peiffer Wolf Carr Kane & Conway, APLC 1422 Euclid Avenue Suite 1610

Case: 2:06-cv-896 As of: 05/19/2020 07:15 PM EDT 3 of 82
Cleveland, OH 44115 216−589−9280 Fax: 216−916−9220 Email: ASletvold@pwcklegal.com ATTORNEY TO BE NOTICED
Barbara J Chisholm Altshuler Berzon LLP 177 Post Street Suite 300 San Francisco, CA 94108 415−421−7151 Fax: 415−362−8264 Email: bchisholm@altshulerberzon.com PRO HAC VICE ATTORNEY TO BE NOTICED
Caroline Gentry Porter Wright Morris & Arthur One Dayton Centre One South Main Street Suite 1600 Dayton, OH 45402−2028 937−449−6748 Email: cgentry@porterwright.com ATTORNEY TO BE NOTICED
Daniel Benjamin Miller Jensen Dulaney LLC 444 E. Pikes Peak Ave. Suite 200 Colorado Springs, CO 80903 719−362−5561 Email: dmiller@jensendulaney.com TERMINATED: 08/20/2014
Danielle E Leonard Altshuler Berzon LLP 177 Post Street Suite 300 San Francisco, CA 94108 415−421−7151 Fax: 415−362−8064 Email: dleonard@altshulerberzon.com PRO HAC VICE ATTORNEY TO BE NOTICED
Donald P Screen The Chandra Law Firm 1265 W. 6th Street Suite 400 Cleveland, OH 44113 216−578−1700 Email: donald.screen@chandralaw.com ATTORNEY TO BE NOTICED
H. Ritchey Hollenbaugh Carlile Patchen & Murphy − 2 366 E Broad Street Columbus, OH 43215 614−228−6135 Email: hhollenbaugh@cpmlaw.com ATTORNEY TO BE NOTICED
Jared Michael Klaus

Case: 2:06-cv-896 As of: 05/19/2020 07:15 PM EDT 4 of 82

Plaintiff
Service Employees International Union, Local 1199

Porter, Wright, Morris & Arthur LLP 41 South High Street 29th Floor Columbus, OH 43215 614−227−2076 Email: jklaus@porterwright.com ATTORNEY TO BE NOTICED
Jennifer Nicole Fuller One South Main Street #1600 Dayton, OH 45402 937/449−6756 Fax: 937/449−6820 Email: jfuller@porterwright.com TERMINATED: 06/19/2012
Lindsay M Sestile Ohio Department of Rehabilitation & Correction 4545 Fisher Road Columbus, OH 43228 United Sta 614−728−1922 Fax: 614−752−1034 Email: lindsay.sestile@odrc.state.oh.us TERMINATED: 06/19/2012
Paul Gerard Hallinan Porter Wright Morris & Arthur − 3 One S Main Street Suite 1600 Dayton, OH 45401−1805 937−449−6740 Email: phallinan@porterwright.com (Inactive) ATTORNEY TO BE NOTICED
Sandhya Gupta The Chandra Law Firm, LLC 1265 W 6th Street Cleveland, OH 44113 216−578−1700 Fax: 216−578−1800 Email: sandhya.gupta@chandralaw.com ATTORNEY TO BE NOTICED
Stephen P Berzon Altshuler Berzon LLP 177 Post Street Suite 300 San Francisco, CA 94108 415−421−7151 Fax: 415−362−8064 Email: sberzon@altber.com ATTORNEY TO BE NOTICED
represented by Subodh Chandra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew J Gottman

Case: 2:06-cv-896 As of: 05/19/2020 07:15 PM EDT 5 of 82
(See above for address) TERMINATED: 06/19/2012
Ashlie Case Sletvold (See above for address) ATTORNEY TO BE NOTICED
Barbara J Chisholm (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Caroline Gentry (See above for address) ATTORNEY TO BE NOTICED
Cathrine J Harshman Hunter Carnahan Shoub & Byard 3360 Tremont Road 2nd Floor Columbus, OH 43221 614−442−5626 Fax: 614−442−5625 Email: charshman@hcands.com ATTORNEY TO BE NOTICED
Daniel Benjamin Miller (See above for address) TERMINATED: 08/20/2014
Danielle E Leonard (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Donald P Screen (See above for address) ATTORNEY TO BE NOTICED
H. Ritchey Hollenbaugh (See above for address) ATTORNEY TO BE NOTICED
Jared Michael Klaus (See above for address) ATTORNEY TO BE NOTICED
Jennifer Nicole Fuller (See above for address) TERMINATED: 06/19/2012
Lindsay M Sestile (See above for address) TERMINATED: 06/19/2012
Michael John Hunter Hunter Carnahan & Shoub & Byard 3360 Tremont Road 2nd floor Columbus, OH 43221 614−442−5626 Fax: 614/442−5625 Email: mhunter@hcands.com ATTORNEY TO BE NOTICED

Case: 2:06-cv-896 As of: 05/19/2020 07:15 PM EDT 6 of 82

Plaintiff Kyle Wangler

Paul Gerard Hallinan (See above for address) ATTORNEY TO BE NOTICED
Sandhya Gupta (See above for address) ATTORNEY TO BE NOTICED
Stacey M Leyton Altshuler Berzon LLP 177 Post Street Suite 300 San Francisco, CA 94108 415−421−7151 Fax: 415−362−8064 Email: sleyton@altshulerberzon.com PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen P Berzon (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Subodh Chandra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Caroline Gentry (See above for address) ATTORNEY TO BE NOTICED
H. Ritchey Hollenbaugh (See above for address) ATTORNEY TO BE NOTICED
Jared Michael Klaus (See above for address) ATTORNEY TO BE NOTICED
Lindsay M Sestile (See above for address) ATTORNEY TO BE NOTICED
Paul Gerard Hallinan Porter Wright Morris & Arthur − 3 PO Box 1805 One S Main Street Suite 1600 Dayton, OH 45401−1805 937−449−6740 Email: phallinan@porterwright.com (Inactive) ATTORNEY TO BE NOTICED
Sandhya Gupta (See above for address) ATTORNEY TO BE NOTICED
Stephen P Berzon (See above for address) ATTORNEY TO BE NOTICED

Case: 2:06-cv-896 As of: 05/19/2020 07:15 PM EDT 7 of 82

Plaintiff James Wise TERMINATED: 04/19/2010
Plaintiff Columbus Coalition for the Homeless

represented by Subodh Chandra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Caroline Gentry (See above for address) ATTORNEY TO BE NOTICED
H. Ritchey Hollenbaugh (See above for address) TERMINATED: 04/19/2010
Lindsay M Sestile (See above for address) TERMINATED: 04/19/2010
Paul Gerard Hallinan (See above for address) TERMINATED: 04/19/2010
Stephen P Berzon (See above for address) ATTORNEY TO BE NOTICED
represented by Subodh Chandra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ana P. Crawford (See above for address) ATTORNEY TO BE NOTICED
Caroline Gentry (See above for address) ATTORNEY TO BE NOTICED
Donald P Screen (See above for address) ATTORNEY TO BE NOTICED
H. Ritchey Hollenbaugh (See above for address) ATTORNEY TO BE NOTICED
Jared Michael Klaus (See above for address) ATTORNEY TO BE NOTICED
Lindsay M Sestile (See above for address) ATTORNEY TO BE NOTICED
Paul Gerard Hallinan (See above for address) ATTORNEY TO BE NOTICED
Sandhya Gupta (See above for address) ATTORNEY TO BE NOTICED

Case: 2:06-cv-896 As of: 05/19/2020 07:15 PM EDT 8 of 82

V. Intervenor Plaintiff Ohio Democratic Party

Stephen P Berzon (See above for address) ATTORNEY TO BE NOTICED
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
H. Ritchey Hollenbaugh (See above for address) LEAD ATTORNEY 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 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Subodh Chandra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Barbara J Chisholm (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Carl A Aveni , II Carlile Patchen & Murphy LLP 950 Goodale Boulevard, Suite 200 Columbus, OH 43212 614−228−6135 Email: caveni@cpmlaw.com ATTORNEY TO BE NOTICED
Danielle E Leonard (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Derek S. Clinger McTigue McGinnis & Colombo LLC 545 E. Town Street Columbus, OH 43215 614−263−7000 Fax: 614−263−7078 Email: dclinger@electionlawgroup.com ATTORNEY TO BE NOTICED

Case: 2:06-cv-896 As of: 05/19/2020 07:15 PM EDT 9 of 82

V.
Defendant
Jennifer Brunner in her official capacity as Secretary of State of Ohio TERMINATED: 05/10/2012

Mark Alan McGinnis McTigue & McGinnis LLC 545 East Town Street Columbus, OH 43215 614−263−7000 Fax: 614−263−7078 Email: mmcginnis@electionlawgroup.com TERMINATED: 02/04/2016
Sandhya Gupta (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron D Epstein Ohio Attorney General's Office Constitutional Law Section 30 E Broad Street 16th Floor Columbus, OH 43215 614−466−2872 Fax: 614−728−7592 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Larry Holliday James Crabbe Brown & James − 2 500 S Front Street Suite 1200 Columbus, OH 43215 614−228−5511 Email: ljames@cbjlawyers.com TERMINATED: 01/30/2007 LEAD ATTORNEY
Amanda L Scheeser Ohio Attorney General Environmental Enforcement Section 30 E. Broad Street Columbus, OH 43215 614−265−6323 Email: Amanda.Scheeser@ohioattorneygeneral.gov ATTORNEY TO BE NOTICED
Christina Louise Corl Plunkett Cooney 300 E. Broad Street Suite 590 Columbus, OH 43215 614−629−3018 Fax: 614−629−3019 Email: ccorl@plunkettcooney.com TERMINATED: 01/30/2007
Damian W Sikora Ohio Attorney General's Office Constitutional Offices Section 30 East Broad Street, 16th Floor Columbus, OH 43215 614−466−2872 Fax: 614−728−7592

Case: 2:06-cv-896 As of: 05/19/2020 07:15 PM EDT 10 of 82
Email: dsikora@ag.state.oh.us TERMINATED: 05/09/2012
Erick D Gale Ohio Supreme Court 65 S. Front Street, 8th Floor Columbus, OH 43215 614−387−9560 Fax: 614−728−7592 Email: erick.gale@ohioattorneygeneral.gov TERMINATED: 05/09/2012
Kari Bowie Hertel Benesch Friedlander Coplan & Aronoff 88 East Broad Street Suite 900 Columbus, OH 43215 614−223−9376 Fax: 614−223−9330 Email: khertel@bfca.com TERMINATED: 02/01/2007
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: 05/09/2012
Pearl M. Chin Ohio Attorney General's Office Health Care Fraud 150 E. Gay Street, 17th Floor Columbus, OH 43215 614−466−3369 Fax: 614−644−9973 Email: pearl.chin@ohioattorneygeneral.gov TERMINATED: 05/09/2012
Richard Nicholas Coglianese Columbus City Attorney's Office City Solicitor 77 North Front Street Columbus, OH 43215 614−645−7385 Fax: 614−645−6949 Email: rncoglianese@columbus.gov TERMINATED: 01/11/2016
Sharon A Jennings Ohio Attorney General − 2 Chief Counsel's Staff Section 30 E Broad Street 17th Floor Columbus, OH 43215−3428 614−466−2872 Email: sjennings@ag.state.oh.us
William M Todd Axelrod Laliberte LLC 137 East State Street Columbus, OH 43215 614−545−6311 Email: wtodd@williammtodd.com

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Defendant
Jon Husted in his official capacity as Secretary of the State of Ohio

TERMINATED: 02/01/2007
represented by Bridget C Coontz Ohio Attorney General's Office Constitutional Offices 30 E. Broad St., 16th Floor Columbus, OH 43215 614−466−2872 Fax: 614−728−7592 Email: bridget.coontz@ohioattorneygeneral.gov TERMINATED: 01/11/2016 LEAD ATTORNEY
Steven T Voigt Ohio Attorney General's Office Constitutional Offices Section 30 E. Broad St., 16th Floor Columbus, OH 43215 614−466−2872 Fax: 614−728−7592 Email: steven.voigt@ohioattorneygeneral.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron D Epstein (See above for address) TERMINATED: 06/14/2013
Amanda L Scheeser (See above for address) ATTORNEY TO BE NOTICED
Brodi J. Conover Ohio Attorney General's Office Constitutional Offices Section 30 E. Broad St., 16th Floor Columbus, OH 43215 614−466−2872 Fax: 5140728−7592 Email: brodi.conover@ohioattorneygeneral.gov ATTORNEY TO BE NOTICED
Erin Elizabeth Butcher Ohio Attorney General Employment Law Section 30 East Broad Street 23rd Floor Columbus, OH 43215 6147282237 Fax: 6147524677 Email: ELSReview@ohioattorneygeneral.gov TERMINATED: 06/10/2015
Joseph Norbert Rosenthal Ohio Attorney General's Office Employment Law Section 30 East Broad Street 23rd Floor Columbus, OH 43215−3167 614−644−7257 Fax: 614−752−4677 Email: ELSReview@ohioattorneygeneral.gov ATTORNEY TO BE NOTICED

Case: 2:06-cv-896 As of: 05/19/2020 07:15 PM EDT 12 of 82

V. Respondent Lucas County Board of Elections
Respondent Miami County Board Of Elections MC Board Of Elections is responding to a subpoena duces tecum

Richard Nicholas Coglianese (See above for address) TERMINATED: 01/11/2016
Ryan L. Richardson 2480 Fair Avenue Bexley, OH 43209 513−571−7116 Email: ryan.richardson@ohioattorneygeneral.gov TERMINATED: 01/05/2018
Sarah Elaine Pierce Ohio Attorney General's Office Constitional Offices Section 30 East Broad Street, 16th Flr. Columbus, OH 43215 614−466−2872 Fax: 614−728−7592 Email: sarah.pierce@ohioattorneygeneral.gov ATTORNEY TO BE NOTICED
Sharon A Jennings (See above for address)
Tiffany L. Carwile Ohio Attorney General Constitutional Offices Section 30 E. Broad St., 16th Floor Columbus, OH 43215 614−466−2872 Fax: 614−728−7592 Email: tiffany.carwile@ohioattorneygeneral.gov ATTORNEY TO BE NOTICED
Zachery Paul Keller Ohio Attorney General Constitutional Offices 30 East Broad St., 16th Floor Columbus, OH 43215 614−466−1853 Fax: 614−728−7592 Email: zachery.keller@ohioattorneygeneral.gov ATTORNEY TO BE NOTICED
represented by Maureen O'Leary Atkins 711 Adams Street 2nd Floor Toledo, OH 43624−2420 419−213−2001 Email: matkins@co.lucas.oh.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher L Englert Miami County Prosecutor Office 201 W. Main Street Troy, OH 45373 937−440−5967

Case: 2:06-cv-896 As of: 05/19/2020 07:15 PM EDT 13 of 82

Respondent Holmes County Board of Elections
Material Witness Franklin County Board of Elections
Material Witness Clermont County Board of Elections
Movant Ohio Republican Party TERMINATED: 11/17/2010

Fax: 937−440−5961 Email: clenglert@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sean Mathew Warner 138 E. Jackson St. Millersburg, OH 44654 330 674 3055 Fax: 330 674 4469 Email: warner@ccj.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Nick A Soulas , Jr Franklin County Prosecutor's Office 373 S High Street 13th Floor Columbus, OH 43215 614−462−3520 Fax: 614−462−6012 Email: nasoulas@franklincountyohio.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick J Piccininni Ohio Secretary of State 180 E. Broad Street 16th Floor Columbus, OH 43215 614−728−5639 Fax: 614−300−3739 Email: ppiccininni@ohiosecretaryofstate.gov TERMINATED: 01/27/2016
represented by Mary Lynne Birck Prosecuting Attorney's Office 101 East Main Street Batavia, OH 45103 513/732−8178 Fax: 513/732−8171 Email: mbirck@clermontcountyohio.gov ATTORNEY TO BE NOTICED
represented by 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: 11/17/2010 LEAD ATTORNEY
Anne Marie Sferra Bricker & Eckler − 2 100 S Third Street Columbus, OH 43215−4291

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Movant Justin Barnes TERMINATED: 11/17/2010
Movant Robert Gillespie TERMINATED: 11/17/2010
Movant The Ohio Government Telecommunications Services

614−227−2300 Email: asferra@bricker.com TERMINATED: 11/17/2010
Christopher N Slagle Bricker & Eckler LLP 100 South Third Street Columbus, OH 43215 614−227−8826 Email: cslagle@bricker.com TERMINATED: 11/17/2010
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: 11/17/2010
represented by James P Schuck (See above for address) TERMINATED: 11/17/2010 LEAD ATTORNEY
Anne Marie Sferra (See above for address) TERMINATED: 11/17/2010
Christopher N Slagle (See above for address) TERMINATED: 11/17/2010
Maria J Armstrong (See above for address) TERMINATED: 11/17/2010
represented by James P Schuck (See above for address) TERMINATED: 11/17/2010 LEAD ATTORNEY
Anne Marie Sferra (See above for address) TERMINATED: 11/17/2010
Christopher N Slagle (See above for address) TERMINATED: 11/17/2010
Maria J Armstrong (See above for address) TERMINATED: 11/17/2010
represented by Philip Bernardo Sineneng Thompson Hine LLP 41 S. High St. Suite 1700 Columbus, OH 43215−6101

Case: 2:06-cv-896 As of: 05/19/2020 07:15 PM EDT 15 of 82

Movant The Ohio Channel
Movant Daniel Shellenbarger

(614) 469−3200 Fax: (614) 469−3361 Email: Philip.Sineneng@thompsonhine.com ATTORNEY TO BE NOTICED
represented by Philip Bernardo Sineneng (See above for address) ATTORNEY TO BE NOTICED
represented by Philip Bernardo Sineneng (See above for address) ATTORNEY TO BE NOTICED

V. Intervenor State of Ohio

represented by Bridget C Coontz (See above for address) TERMINATED: 01/11/2016 LEAD ATTORNEY
Craig A Calcaterra Ohio Attorney General's Office 30 E Broad St 16th Fl Columbus, OH 43215 614−466−2872 Fax: 614.469.3361 Email: craig.calcaterra@ohioattorneygeneral.gov LEAD ATTORNEY
Aaron D Epstein (See above for address) ATTORNEY TO BE NOTICED
Brodi J. Conover (See above for address) ATTORNEY TO BE NOTICED
David Mark Lieberman Office of the Ohio Attorney General 30 E. Broad St. 17th Floor Columbus, OH 43215 614−466−2886 Fax: 866−400−4997 Email: david.lieberman@ohioattorneygeneral.gov TERMINATED: 07/10/2012
Erick D Gale (See above for address) TERMINATED: 05/09/2012
Holly J Hunt Ohio Attorney General − 1 30 East Broad Street 17th Floor Columbus, OH 43215 614−466−2872 Email: hhunt@ag.state.oh.us

Case: 2:06-cv-896 As of: 05/19/2020 07:15 PM EDT 16 of 82
TERMINATED: 01/22/2007
Peggy W Corn Ohio Attorney General − 2 Education Section 30 East Broad Street 16th Floor Columbus, OH 43215 614−644−7250 Fax: 614−644−7634 Email: Peggy.Corn@ohioattorneygeneral.gov TERMINATED: 06/14/2013
Richard Nicholas Coglianese (See above for address) TERMINATED: 01/11/2016
Ryan L. Richardson (See above for address) TERMINATED: 01/05/2018
Sarah Elaine Pierce (See above for address) ATTORNEY TO BE NOTICED
Sharon A Jennings (See above for address)
Steven T Voigt (See above for address) ATTORNEY TO BE NOTICED
Tiffany L. Carwile (See above for address) ATTORNEY TO BE NOTICED
Zachery Paul Keller (See above for address) ATTORNEY TO BE NOTICED

Date Filed 10/24/2006 10/24/2006 10/24/2006
10/24/2006
10/24/2006
10/24/2006
10/24/2006

# Docket Text
1 Remark/Civil cover sheet. (rew ) (Entered: 10/24/2006)
Filing fee: $ 350.00, receipt number 253545. (rew ) (Entered: 10/24/2006)
2 COMPLAINT filed by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199 against J Kenneth Blackwell. (rew ) (Entered: 10/24/2006)
3 MOTION for Temporary Restraining Order by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199. (rew ) (Entered: 10/24/2006)
4 CERTIFICATE OF SERVICE by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199 re 2 Complaint (rew ) (Entered: 10/24/2006)
5 Declaration of Richard Barga by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199. (rew ) (Entered: 10/24/2006)
6 MOTION by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199 to expedite discovery (Attachments: # 1 Text of Proposed Order (rew ) (Entered: 10/24/2006)

Case: 2:06-cv-896 As of: 05/19/2020 07:15 PM EDT 17 of 82

10/24/2006 10/24/2006 10/24/2006 10/24/2006 10/25/2006
10/25/2006
10/25/2006
10/25/2006
10/25/2006 10/25/2006 10/26/2006 10/26/2006 10/26/2006 10/26/2006 10/26/2006 10/26/2006 10/26/2006 10/26/2006

NOTICE Pro Hac Vice letter mailed to attorney Subodh Chandra. (rew ) (Entered: 10/24/2006)
7 NOTICE of Hearing on 3 MOTION for Temporary Restraining Order: Motion Hearing set for 10/25/2006 01:30 PM in Courtroom 4 before Gregory L Frost. (sem1, ) (Entered: 10/24/2006)
8 NOTICE of Hearing: Preliminary Injunction Hearing set for 10/31/2006 01:30 PM (Courtroom to be determined) before Gregory L Frost. (sem1, ) (Entered: 10/24/2006)
Minute Entry for proceedings held before Judge Gregory L Frost : Rule 65 Initial Conference held on 10/24/2006 (docketed for statistical purposes only). (sem1, ) (Entered: 10/24/2006)
9 RESPONSE in Opposition re 3 MOTION for Temporary Restraining Order filed by Defendant J Kenneth Blackwell. (Attachments: # 1 Exhibit Purcell v Gonzalez# 2 Exhibit Indiana Democratic Party v Rokita)(Coglianese, Richard) (Entered: 10/25/2006)
10 NOTICE by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199 re 3 MOTION for Temporary Restraining Order Filing of Supplemental Declaration of Feldenkris (Hollenbaugh, H. Ritchey) (Entered: 10/25/2006)
11 NOTICE by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199 re 3 MOTION for Temporary Restraining Order of filing of Supplemental declaration of Nielson (Hollenbaugh, H. Ritchey) (Entered: 10/25/2006)
12 NOTICE by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199 re 3 MOTION for Temporary Restraining Order of Supplemental Declaration of Fisher (Hollenbaugh, H. Ritchey) (Entered: 10/25/2006)
13 ANSWER to Complaint by Defendant J Kenneth Blackwell.(Sikora, Damian) (Entered: 10/25/2006)
Minute Entry for proceedings held before Judge Gregory L Frost : In Chambers Conference held on 10/25/2006 (docketed for statistical purposes only). (sem1, ) (Entered: 10/25/2006)
14 NOTICE of Hearing: Pretrial Conference set for 12/13/2006 @ 02:30 PM in chambers before Norah McCann King. (Attachments: # 1 # 2 # 3)(jdm, ) (Entered: 10/26/2006)
15 NOTICE by Defendant J Kenneth Blackwell of Filing (Attachments: # 1 Exhibit A − Directive 2006−78# 2 Exhibit B − Summary of Election Laws by State)(Sikora, Damian) (Entered: 10/26/2006)
Judge Algenon L. Marbley and Terence P Kemp added. Judge Gregory L Frost and Norah McCann King no longer assigned to case. (jr1) (Entered: 10/26/2006)
16 ORDER transferring this action from Judge Gregory L. Frost to Judge Algenon L. Marbley. Signed by Judge Algenon L. Marbley and Judge Gregory L. Frost on 10/26/06. (sem1, ) (Entered: 10/26/2006)
17 ORDER granting 3 Motion for TRO and setting the a Preliminary Injunction Hearing for 11/1/2006 at 9:00 a.m. in Courtroom 1, before Judge Marbley. Signed by Judge Algenon L. Marbley on 10/26/2006. (cw, ) (Entered: 10/26/2006)
18 ORDER requiring Defendant Blackwell to issue Directive. Signed by Judge Algenon L. Marbley on 10/26/2006. (Attachments: # 1 Order to County Boards of Elections)(cw, ) (Entered: 10/26/2006)
19 ORDER to all County Boards of Elections. Signed by Judge Algenon L. Marbley on 10/26/2006. (cw, ) (Entered: 10/26/2006)
20 NOTICE OF APPEAL by Defendant J Kenneth Blackwell. Filing fee $ 455. (Attachments: # 1 Exhibit Document 17 − Temporary Restraining Order# 2 Exhibit Document 18−1# 3 Exhibit Document 18−2# 4 Exhibit Document 19)(Sikora, Damian) (Entered: 10/26/2006)

Case: 2:06-cv-896 As of: 05/19/2020 07:15 PM EDT 18 of 82

10/27/2006 10/27/2006 10/27/2006 10/27/2006 10/27/2006 10/27/2006 10/27/2006
10/27/2006 10/30/2006 10/30/2006 10/31/2006 10/31/2006
10/31/2006 10/31/2006 10/31/2006 10/31/2006 10/31/2006 10/31/2006 10/31/2006

21 MOTION to Expedite Discovery by Defendant J Kenneth Blackwell. (Corl, Christina) (Entered: 10/27/2006)
22 MOTION to Intervene of State of Ohio. (Attachments: # 1 Exhibits to Motion to Intervene# 2 Proposed Notice of Defenses)(Hunt, Holly) (Entered: 10/27/2006)
Filing fee − Notice of Appeal: $ 455.00, receipt number 253596 (kk1) (Entered: 10/27/2006)
23 MOTION to Quash Subpoena and Objection to Production of Documents of the Lucas County Board of Elections. Filed by: John A. Borell, Assistant Prosecuting Attorney Counsel for the Lucas County Board of Elections. (cw, ) (Entered: 10/27/2006)
24 ORDER denying 23 Motion to Quash. Signed by Judge Algenon L. Marbley on 10/27/2006. (cw, ) (Entered: 10/27/2006)
25 NOTICE OF APPEAL by Intervenor State Of Ohio. Filing fee $ 455. (Hunt, Holly) (Entered: 10/27/2006)
26 MOTION for Preliminary Injunction by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Gentry, Caroline) (Entered: 10/27/2006)
30 TRANSCRIPT of TRO Proceedings held on 10/26/06 before Judge Algenon L. Marbley. Court Reporter: Darla J. Coulter. (Entire copy of the transcript has been filed with the Clerk's Office). (er ) (Entered: 10/31/2006)
27 TRANSCRIPT of Proceedings held on 10/27/2006 before Judge Algenon L. Marbley. Court Reporter: Joan E. Koenig. (kk1) (Entered: 10/30/2006)
28 TRANSCRIPT REQUEST for Motion to Intervene Hearing by Intervenor State Of Ohio for proceedings held on 10/27/06 before Judge Marbley.. (Hunt, Holly) (Entered: 10/30/2006)
29 RESPONSE in Opposition re 26 MOTION for Preliminary Injunction filed by Defendant J Kenneth Blackwell. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4)(Marti, Todd) (Entered: 10/31/2006)
31 NOTICE OF FILING DEPOSITION of Kelly S. Pallante, Betty McGary, Matthew Damschroder, Susan Johnson by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199 by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199.(Gentry, Caroline) (Entered: 10/31/2006)
32 NOTICE of Appearance by Larry Holliday James Defendant J Kenneth Blackwell (James, Larry) (Entered: 10/31/2006)
33 TRANSCRIPT REQUEST by Defendant J Kenneth Blackwell for proceedings of Motion for TRO held on 10/26/2006 before Judge Algenon Marbley. (kk1) (Entered: 10/31/2006)
34 NOTICE of Appearance by Dennis J Concilla Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199 (Concilla, Dennis) (Entered: 10/31/2006)
35 RESPONSE in Opposition re 26 MOTION for Preliminary Injunction filed by Intervenor State Of Ohio. (Attachments: # 1 Exhibit Testimony# 2 Caselaw# 3 HB 3)(Hunt, Holly) (Entered: 10/31/2006)
36 DEPOSITION of Susan R. Johnson taken on 10/30/06 by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199. (Attachments: # 1 # 2)(Gentry, Caroline) (Entered: 10/31/2006)
37 DEPOSITION of Kelly S. Pallante taken on 10/30/06 by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199. (Attachments: # 1 # 2)(Gentry, Caroline) (Entered: 10/31/2006)
38 DEPOSITION of Betty L. McGary taken on 10/30/06 by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199.

Case: 2:06-cv-896 As of: 05/19/2020 07:15 PM EDT 19 of 82

10/31/2006
10/31/2006 10/31/2006 11/01/2006 11/01/2006 11/01/2006 11/01/2006 11/01/2006 11/01/2006 11/01/2006
11/01/2006 11/01/2006 11/01/2006 11/01/2006 11/03/2006

(Attachments: # 1 # 2 # 3 # 4 # 5)(Gentry, Caroline) (Entered: 10/31/2006)
39 DEPOSITION of Matthew M. Damschroder taken on 10/30/06 by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 # 13 # 14 # 15 # 16 # 17 # 18 # 19 # 20 # 21 # 22 # 23 # 24 # 25)(Gentry, Caroline) (Entered: 10/31/2006)
40 NOTICE OF FILING DEPOSITION of L. Michael Vu by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199 by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199.(Gentry, Caroline) (Entered: 10/31/2006)
41 DEPOSITION of L. Michael Vu taken on 10/31/06 by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199. (Attachments: # 1 # 2 # 3)(Gentry, Caroline) (Entered: 10/31/2006)
42 NOTICE by Defendant J Kenneth Blackwell of filing the Affidavit of Mark Landes and portions of the file in State v Hubbard (Attachments: # 1 Affidavit of Mark Landes# 2 State v Hubbard)(Coglianese, Richard) (Entered: 11/01/2006)
43 NOTICE by Defendant J Kenneth Blackwell of Filing Discovery Responses (Attachments: # 1 Exhibit Pltfs disc resp #1# 2 Exhibit pltfs disc resp #2# 3 Exhibit pltfs' disc resp #3)(James, Larry) (Entered: 11/01/2006)
44 NOTICE by Defendant J Kenneth Blackwell of Filing Voter Fraud Studies (Attachments: # 1 Exhibit Voter Fraud Studies #1# 2 Exhibit Voter Fraud Studies #2# 3 Exhibit Voter Fraud Studies #3# 4 Exhibit Voter Fraud Studies #4)(James, Larry) (Entered: 11/01/2006)
45 NOTICE by Defendant J Kenneth Blackwell of filing deposition transcripts (Attachments: # 1 Exhibit John Williams depo transcript #1# 2 Exhibit John Williams depo transcript #2# 3 Exhibit Jill Kelly depo transcript)(James, Larry) (Entered: 11/01/2006)
46 MOTION for Leave for Subodh Chandra to Appear PHV by Plaintiffs The Northeast Ohio Coalition for the Homeless & Service Employees International Union, Local 1199. Filing fee $ 50. (kk1) (Entered: 11/01/2006)
Filing fee − PHV (Subodh Chandra): $ 50.00, receipt number 253657 (kk1) (Entered: 11/01/2006)
47 NOTICE OF FILING DEPOSITION of John Williams & Jill B. Kelly by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199 by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199.(Gentry, Caroline) (Entered: 11/01/2006)
48 DEPOSITION of John Williams taken on October 31, 2006 by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199. (Attachments: # 1 Part 2# 2 Part 3# 3 Part 4# 4 Part 5# 5 Part 6# 6 Part 7# 7 Part 8# 8 Part 9)(Gentry, Caroline) (Entered: 11/01/2006)
49 DEPOSITION of Jill B. Kelly taken on October 31, 2006 by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199. (Attachments: # 1 Part 2# 2 Part 3# 3 Part 4)(Gentry, Caroline) (Entered: 11/01/2006)
50 NOTICE of Appearance by Kari Bowie Hertel & William M Todd for Defendant J Kenneth Blackwell. (kk1) (Entered: 11/01/2006)
51 CONSENT ORDER. The Court shall retain jurisdiction to enforce this Consent Order. This Consent Order shall remain in effect until further order of this Court or until dismissal of this action. Signed by Judge Algenon L. Marbley on 11/1/2006. (cw, ) (Entered: 11/01/2006)
USCA Case Number 06−4412 for 20 Notice of Appeal filed by J Kenneth Blackwell − (wh1, ) (Entered: 11/03/2006)

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11/03/2006 11/03/2006
11/03/2006
11/03/2006 11/14/2006 11/14/2006 11/15/2006
11/17/2006 11/18/2006 11/18/2006 11/20/2006 11/20/2006 11/20/2006 11/20/2006 11/20/2006
11/21/2006

USCA Case Number 06−4421 for 25 Notice of Appeal filed by State Of Ohio − (wh1, ) (Entered: 11/03/2006)
52 USCA JUDGMENT as to 20 Notice of Appeal filed by J Kenneth Blackwell & 25 Notice of Appeal filed by State Of Ohio − The appellees' motion to dismiss the appeal is denied; the motion by intervenor State of Ohio to intervene before this court is granted; the district court's denial of the State's motion to intervene as of right is reversed; and defendant J. Kenneth Blackwell's motion to stay or vacate the district court's orders is granted in part. (kk1) (Entered: 11/03/2006)
53 USCA INFORMATION COPY re 20 Notice of Appeal & 25 Notice of Appeal denying appellee's mtn to dismiss the appeal, granting the State's mtn to intervene, reversing the district court's denial of the State's mtn to intervene as of right, granting in part the Secretary's mtn to state or vacate the district court's orders & vacating the district court's issuance of the TRO except for its requirement that the Boards of Elections preserve all absentee ballots. (kk1) (Entered: 11/03/2006)
54 Letter from USCA enclosing a corrected page of 53 USCA Information Copy. (kk1) (Entered: 11/03/2006)
55 MOTION Enforce Consent Order by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Gentry, Caroline) (Entered: 11/14/2006)
56 ORDER granting 46 Motion for Leave to Appear Pro Hac Vice for Subodh Chandra for Plaintiff. Signed by Judge Terence P Kemp on 11/14/06. (kch) (Entered: 11/14/2006)
57 AGREED ENFORCEMENT ORDER Defendant Secretary of State, J Kenneth Blackwell, shall forthwith issue a directive to the County Boards of Elections attaching this Agreed Enforcement Order and directing it to be followed by the 88 Ohio County Boards of Elections. Signed by Judge Algenon L. Marbley on 11/14/2006. (cw, ) (Entered: 11/15/2006)
58 ORDER TO SHOW CAUSE. Show Cause Hearing set for 11/21/2006 at 9:00 a.m. before Judge Marbley in Courtroom 1. Signed by Judge Algenon L. Marbley on 11/17/2006. (cw, ) (Entered: 11/17/2006)
59 NOTICE of Appearance (Gerhardstein, Alphonse) (Entered: 11/18/2006)
60 MOTION for Extension of Time New date requested 11/21/2006. and motion to reset hearing by Interested Party Subodh Chandra. (Gerhardstein, Alphonse) (Entered: 11/18/2006)
61 NOTICE of Appearance by John Joseph Kulewicz Interested Party Subodh Chandra (Kulewicz, John) (Entered: 11/20/2006)
62 TRANSCRIPT of Proceedings (Telephone Status Conference) held on 11/17/2006 before Judge Marbley. Court Reporter: Laura Samuels (27 pages). (cw, ) (Entered: 11/20/2006)
63 MOTION for Order to Show Cause by Defendant J Kenneth Blackwell. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Corl, Christina) (Entered: 11/20/2006)
64 RESPONSE in Opposition re 63 MOTION for Order to Show Cause filed by Interested Party Subodh Chandra. (Kulewicz, John) (Entered: 11/20/2006)
65 MOTION for Leave to File Reply to Attorney Chandra's Memorandum in Response to Motion of Defendant for an Order to Show Cause by Defendant J Kenneth Blackwell. (Attachments: # 1 Exhibit A: Reply of Defendant J. Kenneth Blackwell to Attorney Chandra's Response to Motion for an Order to Show Cause)(Corl, Christina) (Entered: 11/20/2006)
66 AFFIDAVIT in Opposition re 63 MOTION for Order to Show Cause Declaration of Alvin E Mathews, Jr. filed by Interested Party Subodh Chandra. (Lin, Albert) (Entered: 11/21/2006)

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11/21/2006 11/21/2006 11/21/2006 11/22/2006 11/29/2006 12/07/2006 12/11/2006 12/13/2006 12/14/2006
12/14/2006 01/11/2007 01/22/2007 01/22/2007 01/23/2007 01/30/2007 02/01/2007 02/21/2007 02/22/2007 03/21/2007

67 AFFIDAVIT in Opposition re 63 MOTION for Order to Show Cause Declaration of Subodh Chandra filed by Interested Party Subodh Chandra. (Attachments: # 1 # 2)(Lin, Albert) (Entered: 11/21/2006)
68 Minute Entry for proceedings held before Judge Algenon L. Marbley : Show Cause Hearing held on 11/21/2006 at 9:00 AM. (Court Reporter Darla Coulter.) (sln) (Entered: 11/21/2006)
Notice of Correction : Text of the 11/21/06 minutes modified by clerk. (sln, ) (Entered: 11/21/2006)
69 ORDER re the 11/21/06 Show Cause Hearing: The Court vacates the Order to Show Cause and Overrules Defendant's Motion for Order to Show Cause. Signed by Judge Algenon L. Marbley on 11/22/06. (sem1, ) (Entered: 11/22/2006)
70 TRANSCRIPT of Proceedings (telephonic conference − total pages 26) held on November 17, 2006 before Judge Algenon L. Marbley. Court Reporter: L. Samuels. (bc1, ) (Entered: 11/29/2006)
71 MANDATE of USCA as to 25 Notice of Appeal (06−4421) filed by State Of Ohio, (sr) (Entered: 12/08/2006)
72 REPORT of Rule 26(f) Planning Meeting. (Coglianese, Richard) (Entered: 12/11/2006)
Initial Pretrial Conference held on 12/13/2006 before Magistrate Judge Terence P. Kemp. (pb1, ) (Entered: 12/14/2006)
73 PRELIMINARY PRETRIAL ORDER: Joinder of Parties & Motions to Amend due by 6/15/2007. Primary Expert due by 9/30/2007. Rebuttal Expert due by 11/30/2007. Discovery due by 1/31/2008. Dispositive motions due by 2/28/2008. The State of Ohio's Motion to Intervene (doc 22 ) is granted − answer due 1/22/2007. Signed by Judge Terence P Kemp on 12/14/2006. (kk1) (Entered: 12/14/2006)
Set Deadlines/Hearings: State Of Ohio answer due 1/22/2007 per 73 . (kk1) (Entered: 12/14/2006)
74 ORDER OF SUBSTITUTION OF PARTY DEFENDANT. Signed by Judge Algenon L. Marbley on 1/11/2007. (cw, ) (Entered: 01/11/2007)
75 NOTICE by Intervenor State Of Ohio of Withdrawal of Counsel (Jennings, Sharon) (Entered: 01/22/2007)
76 Unopposed MOTION for Extension of Time to File Answer New date requested 2/21/2007. by Intervenor State Of Ohio. (Attachments: # 1 Text of Proposed Order)(Jennings, Sharon) (Entered: 01/22/2007)
77 ORDER granting 76 Motion for Extension of Time to Answer − State Of Ohio's answer due 2/21/2007. Signed by Judge Terence P Kemp on 1/23/2007. (kk1) (Entered: 01/23/2007)
78 NOTICE by Defendant Jennifer Brunner of Withdrawal of Counsel (Attachments: # 1 Exhibit A − Letter from Attorney General)(James, Larry) (Entered: 01/30/2007)
79 NOTICE by Defendant Jennifer Brunner Notice of Withdrawal of Counsel (Todd, William) (Entered: 02/01/2007)
80 MOTION for Extension of Time to File Answer New date requested 3/23/2007. by Intervenor State Of Ohio. (Attachments: # 1 Text of Proposed Order)(Jennings, Sharon) (Entered: 02/21/2007)
81 ORDER signed by Judge Terence P Kemp on 2/22/2007 granting 80 Motion for Extension of Time to Answer −State Of Ohio answer due 3/23/2007 − (wh1) (Entered: 02/22/2007)
82 MOTION for Extension of Time to File Answer New date requested 4/23/2007. by Intervenor State Of Ohio. (Attachments: # 1 Text of Proposed Order)(Jennings, Sharon) (Entered: 03/21/2007)

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03/22/2007 04/20/2007
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10/10/2007 10/16/2007 10/22/2007 10/31/2007 11/21/2007 11/21/2007 01/04/2008
01/25/2008
01/28/2008

83 ORDER signed by Judge Terence P Kemp on 3/22/2007 granting 82 Motion for Extension of Time to Answer −State Of Ohio answer due 4/23/2007 − (wh1) (Entered: 03/22/2007)
84 Joint MOTION to Stay Proceedings by Defendant Jennifer Brunner, Interested Party Subodh Chandra, Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199, Intervenor State Of Ohio. (Jennings, Sharon) (Entered: 04/20/2007)
85 Joint MOTION to Stay proceedings by Defendant Jennifer Brunner, Interested Party Subodh Chandra, Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199, Intervenor State Of Ohio. (Coglianese, Richard) (Entered: 07/09/2007)
86 Unopposed MOTION for Extension of Time to File Answer New date requested 10/31/2007. by Intervenor State Of Ohio. (Attachments: # 1 Text of Proposed Order) (Jennings, Sharon) (Entered: 08/09/2007)
87 ORDER SETTING TELEPHONIC STATUS CONFERENCETelephonic Status Conference set for 9/24/2007 02:30 PM before Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 9/21/2007. (cw, ) (Entered: 09/21/2007)
88 ORDER SETTING DATE FOR SETTLEMENT CONFERENCE Settlement Conference set for 10/17/2007 09:00 AM in chambers before Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 9/24/2007. (cw, ) (Entered: 09/24/2007)
Motions No Longer Referred to TPK: 26 MOTION for Preliminary Injunction, 60 MOTION for Extension of Time New date requested 11/21/2006. and motion to reset hearing, 55 MOTION Enforce Consent Order (jr) (Entered: 09/25/2007)
89 AMENDED ORDER withdrawing 55 Motion ; finding as moot 60 Motion for Extension of Time; granting 86 Motion for Extension of Time to Answer ; withdrawing 26 Motion for Preliminary Injunction. Signed by Judge Algenon L. Marbley on 9/25/2007. (cw, ) (Entered: 09/25/2007)
90 MOTION for Order to Excuse Attendance at Conference by Intervenor State Of Ohio. (Jennings, Sharon) (Entered: 10/10/2007)
91 ORDER granting 90 Motion for Order to excuse the in−person attendance. Signed by Judge Algenon L. Marbley on 10/16/2007. (cw, ) (Entered: 10/16/2007)
92 SCHEDULING ORDER Telephonic Status Conference set for 11/29/2007 09:30 AM before Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 10/22/2007. (cw, ) (Entered: 10/22/2007)
93 NOTICE by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199 of Filing Settlement Letter (Attachments: # 1 Exhibit) (Gentry, Caroline) (Entered: 10/31/2007)
94 NOTICE by Defendant Jennifer Brunner of Filing Response to the Plaintiffs October 31 Letter (Attachments: # 1 Exhibit Response) (Coglianese, Richard) (Entered: 11/21/2007)
95 NOTICE by Intervenor State Of Ohio Notice of Filing Response (Attachments: # 1 Exhibit Letter) (Jennings, Sharon) (Entered: 11/21/2007)
96 MOTION for Attorney Fees by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199. (Attachments: # 1 Exhibit Declaration of Caroline Gentry# 2 Exhibit Declaration of Subodh Chandra# 3 Exhibit Declaration of H. Ritchey Hollenbaugh) (Gentry, Caroline) (Entered: 01/04/2008)
97 Unopposed MOTION for Extension of Time to File Response/Reply as to 96 MOTION for Attorney Fees New date requested 2/27/2008. by Defendant Jennifer Brunner, Intervenor State Of Ohio. (Attachments: # 1 Text of Proposed Order) (Jennings, Sharon) (Entered: 01/25/2008)
98 ORDER granting # 97 Responses to # 96 due by 2/27/2008. Signed by Terence P Kemp on 1/28/2008. (pes) (Entered: 01/28/2008)

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02/27/2008 03/19/2008 04/02/2008 04/07/2008 04/07/2008 04/07/2008 04/08/2008 04/21/2008 04/24/2008 05/05/2008 09/30/2008 10/08/2008 10/14/2008 10/14/2008

99 MOTION to Dismiss for Lack of Jurisdiction and Memorandum in Opposition to Motion for Attorney Fees by Defendant Jennifer Brunner, Intervenor State Of Ohio. Responses due by 3/24/2008 (Attachments: # 1 Exhibit Directive 2006−078, # 2 Exhibit Affidavit of Keith Yeazel, # 3 Exhibit Comprehensive Chart) (Jennings, Sharon) (Entered: 02/27/2008)
100 Unopposed MOTION for Extension of Time to File Response/Reply as to 99 MOTION to Dismiss for Lack of Jurisdiction and Memorandum in Opposition to Motion for Attorney Fees New date requested 4/7/2008. by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199. (Attachments: # 1 Text of Proposed Order) (Sestile, Lindsay) (Entered: 03/19/2008)
101 ORDER granting 100 Motion for Extension of Time to File Response/Reply re 100 Unopposed MOTION for Extension of Time to File Response/Reply as to 99 MOTION to Dismiss for Lack of Jurisdiction and Memorandum in Opposition to Motion for Attorney Fees New date requested 4/7/2008. Signed by Algenon L. Marbley on 4/2/2008. (cw, ) (Entered: 04/02/2008)
102 RESPONSE in Opposition re 99 MOTION to Dismiss for Lack of Jurisdiction and Memorandum in Opposition to Motion for Attorney Fees filed by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F) (Gentry, Caroline) (Entered: 04/07/2008)
103 RESPONSE in Support re 96 MOTION for Attorney Fees filed by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F) (Gentry, Caroline) Modified on 4/8/2008 − doc deleted to correct ecf filing event (pes). (Entered: 04/07/2008)
104 REPLY to Response to Motion re 96 MOTION for Attorney Fees filed by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F) (pes) (Entered: 04/08/2008)
Notice of Correction: Former docket entry #103 (Response in Support of Motion), filed by Caroline Gentry, deleted and re−filed by Clerk as current docket entry # 104 (Reply to Response to Motion) in order to correct ECF filing event. (pes) (Entered: 04/08/2008)
105 Joint MOTION for Extension of Time to File Response/Reply New date requested 5/5/2008. by Defendant Jennifer Brunner, Intervenor State Of Ohio. (Coglianese, Richard) (Entered: 04/21/2008)
106 ORDER granting 105 Motion for Extension of Time to File Reply re 99 MOTION to Dismiss for Lack of Jurisdiction. Replies due by 5/5/2008. Signed by Terence P Kemp on 4/24/08. (jr) (Entered: 04/24/2008)
107 REPLY to Response to Motion re 99 MOTION to Dismiss for Lack of Jurisdiction and Memorandum in Opposition to Motion for Attorney Fees filed by Defendant Jennifer Brunner, Intervenor State Of Ohio. (Coglianese, Richard) (Entered: 05/05/2008)
108 ORDER granting 96 Motion for Attorney Fees and Costs with a reasonable fee award to be determined at hearing to be scheduled by the Court; granting in part and denying in part 99 Motion to Dismiss for Lack of Jurisdiction. Signed by Algenon L. Marbley on 09/30/2008. (cw, ) (Entered: 09/30/2008)
109 Mail Returned as Undeliverable. Mail (doc 108 ) sent to Subodh Chandra. (jr) (Entered: 10/09/2008)
110 MOTION for Leave to File Instanter a Supplemental Complaint by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Gentry, Caroline) (Entered: 10/14/2008)
111 MOTION for Preliminary Injunction by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199. (Attachments: # 1

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Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H) (Gentry, Caroline) (Entered: 10/14/2008)
112 MOTION to Expedite Discovery by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E−1, # 6 Exhibit E−2) (Gentry, Caroline) (Entered: 10/14/2008)
113 RESPONSE in Opposition re 112 MOTION to Expedite Discovery filed by Defendant Jennifer Brunner, Intervenor State Of Ohio. (Attachments: # 1 Affidavit First Wolf Affidavit, # 2 Affidavit Second Wolfe Affidavit) (Coglianese, Richard) (Entered: 10/15/2008)
114 RESPONSE in Support re 112 MOTION to Expedite Discovery filed by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199. (Attachments: # 1 Exhibit A) (Gentry, Caroline) (Entered: 10/16/2008)
REPLY to Response to Motion re # 112 MOTION to Expedite Discovery filed by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199.

See docket entry # 114 for document. Reply re−filed by Clerk's office in order to reflect proper ECF event.

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(pes) (Entered: 10/16/2008)
115 NOTICE of Appearance by Paul Gerard Hallinan Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199 (Hallinan, Paul) (Entered: 10/16/2008)
116 NOTICE of Appearance by Jennifer Nicole Fuller Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199 (Fuller, Jennifer) (Entered: 10/16/2008)
117 NOTICE by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199 of Filing Amended Expedited Discovery Requests to Defendant (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit) (Gentry, Caroline) (Entered: 10/17/2008)
118 MOTION to Withdraw 110 MOTION for Leave to File Instanter a Supplemental Complaint by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199. (Gentry, Caroline) (Entered: 10/17/2008)
119 ANSWER to 2 Complaint by Intervenor State Of Ohio. (Jennings, Sharon) (Entered: 10/17/2008)
120 MOTION for Leave to File Instanter a Supplemental Complaint by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Gentry, Caroline) (Entered: 10/17/2008)
121 ORDER granting (with modifications) 112 Motion to Expedite. Signed by Algenon L. Marbley on October 17, 2008. (bc1, ) (Entered: 10/17/2008)
122 RESPONSE in Opposition re 120 MOTION for Leave to File Instanter a Supplemental Complaint filed by Intervenor State Of Ohio. (Jennings, Sharon) (Entered: 10/17/2008)
123 Witness List by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199. (Gentry, Caroline) (Entered: 10/20/2008)
124 NOTICE by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199 of Filing Second Amended 30(b)(6) Notice of Deposition (Attachments: # 1 Exhibit A) (Gentry, Caroline) (Entered: 10/20/2008)
125 NOTICE of Franklin County Board of Elections of Service of Responses and Objections to Plaintiffs' Subpoena Duces Tecum for the Production of Documents (Piccininni, Patrick) (Entered: 10/20/2008)

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10/20/2008
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126 RESPONSE in Opposition re 110 MOTION for Leave to File Instanter a Supplemental Complaint, 111 MOTION for Preliminary Injunction, 120 MOTION for Leave to File Instanter a Supplemental Complaint filed by Defendant Jennifer Brunner. (Attachments: # 1 Exhibit Election Administration and Voting Survey) (Sikora, Damian) (Entered: 10/20/2008)
127 NOTICE of Hearing on Motion 111 for Preliminary Injunction set for Thursday, 10/23/2008, 9:00 AM before Judge Edmund A Sargus. (aq1 ) (Entered: 10/20/2008)
128 RESPONSE in Opposition re 111 MOTION for Preliminary Injunction filed by Intervenor State Of Ohio. (Attachments: # 1 Exhibit A) (Jennings, Sharon) (Entered: 10/20/2008)
129 Exhibit List by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199.. (Gentry, Caroline) (Entered: 10/20/2008)
130 Transcript of Telephone Conference Proceedings held on 10/16/08, before Judge Algenon L. Marbley. Court Reporter/Transcriber Laura L. Samuels, Telephone number 614−719−3245. 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.

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For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 11/12/2008. Redacted Transcript Deadline set for 11/21/2008. Release of Transcript Restriction set for 1/20/2009. (er1 ) (Entered: 10/21/2008)
131 NOTICE of Appearance by Aaron D Epstein Defendant Jennifer Brunner (Epstein, Aaron) (Entered: 10/22/2008)
132 REPLY to Response to Motion re 111 MOTION for Preliminary Injunction filed by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Gentry, Caroline) (Entered: 10/22/2008)
133 MOTION to Quash Subpoena issued by Plaintiffs by Material Witness Franklin County Board of Elections. (Attachments: # 1 Exhibit 1−Subpoena) (Piccininni, Patrick) (Entered: 10/22/2008)
134 MOTION to Quash. (Birck, Mary) (Entered: 10/22/2008)
135 NOTICE OF FILING DEPOSITION of William Shubat, Trina Spradling, Mark Oster, Judith Mller, Mary Fry, Mike DeFranco, Matthew Damschroder, Lynn McCoy, Sally Krisel, Diana Gamble by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199 by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199. (Attachments: # 1 Belmont Cty. Deposition, # 2 Butler County Deposition, # 3 Clark County Deposition, # 4 Clermont County Deposition, # 5 Coshocton County Deposition, # 6 Cuyahoga County Deposition, # 7 Franklin County Deposition, # 8 Greene County Deposition, # 9 Hamilton County Deposition, # 10 Logan County Deposition) (Gentry, Caroline) (Entered: 10/22/2008)
136 NOTICE by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199 of Filing Deposition Designations (Gentry, Caroline) (Entered: 10/23/2008)
137 AMENDED DOCUMENT by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199. Amendment to 136 Notice (Other) of Filing Deposition Designations. (Sestile, Lindsay) (Entered: 10/23/2008)

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138 NOTICE of Appearance by Daniel B Miller Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199 (Miller, Daniel) (Entered: 10/23/2008)
139 NOTICE OF FILING DEPOSITION of Jose Candelario, Marilyn Jacobcik, Jeremy Demagall, Timothy Ward, Steve Quillen, Steven Harsman, Karen Lammers, Jeanette Mullane, Janet Leahy, Marijean Donofrio, Keir Holeman, Patricia Wolfe by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199 by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199. (Attachments: # 1 Lorain County Deposition, # 2 Lorain County 2 Deposition, # 3 Lucas County Deposition, # 4 Madison County Deposition, # 5 Miami County Deposition, # 6 Montgomery County Deposition, # 7 Putnam County Deposition, # 8 Seneca County Deposition, # 9 Stark County Deposition, # 10 Summit County Deposition, # 11 Warren County Deposition, # 12 Secretary of State Deposition) (Gentry, Caroline) (Entered: 10/23/2008)
140 NOTICE by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199 of Filing Additional Evidence (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (Sestile, Lindsay) (Entered: 10/23/2008)
141 AMENDED DOCUMENT by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199. Amendment to 140 Notice (Other) of Filing Additional Evidence. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (Sestile, Lindsay) (Entered: 10/24/2008)
142 ORDER adopting and annexing Ohio Secretary of State Directive 2008−101. Signed by Edmund A Sargus on 10/24/08. (dh) (Entered: 10/24/2008)
143 ORDER granting in part by agreement 111 Plaintiffs' Motion for Preliminary Injunction. Signed by Edmund A Sargus on 10/27/08. (dh) (Entered: 10/27/2008)
144 Order of Clarification. Signed by Edmund A Sargus on 10/29/08. (dh) (Entered: 10/29/2008)
145 MOTION for Extension of Time New date requested 12/15/2008. by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199. (Hollenbaugh, H. Ritchey) (Entered: 10/30/2008)
146 MOTION to Consolidate Cases by Defendant Jennifer Brunner. (Attachments: # 1 Exhibit A Court Order) (Coglianese, Richard) (Entered: 11/04/2008)
147 NOTICE of Appearance (McGinnis, Mark) (Entered: 11/04/2008)
148 MOTION to Intervene and Proposed Order by Intervenor Plaintiff Ohio Democratic Party. (Attachments: # 1 Text of Proposed Order) (McGinnis, Mark) (Entered: 11/04/2008)
149 COMPLAINT by Proposed Intervenor against all defendants, filed by Ohio Democratic Party. [ELECTION ISSUE(S) CITED] (McGinnis, Mark) (Entered: 11/04/2008)
150 MOTION to Consolidate Cases and Proposed Order by Intervenor Plaintiff Ohio Democratic Party. (Attachments: # 1 Text of Proposed Order) (McGinnis, Mark) (Entered: 11/04/2008)
151 Supplemental Memorandum Supporting re 146 MOTION to Consolidate Cases by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199. (Hollenbaugh, H. Ritchey) (Entered: 11/04/2008)
152 REPLY to Response to Motion re 146 MOTION to Consolidate Cases filed by Defendant Jennifer Brunner. (Chin, Pearl) (Entered: 11/04/2008)
153 ORDER finding as moot 110 Motion for Leave to File; granting 120 Motion for Leave to File; granting 148 Motion to Intervene. Signed by Algenon L. Marbley on 11/5/2008. (cw, ) (Entered: 11/05/2008)
154 ORDER granting 146 Motion to Consolidate Cases; granting 150 Motion to Consolidate Cases; granting 151 motion in support of Secretary of State, Jennifer

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Brunner's motion to consolidate. Signed by Algenon L. Marbley on 11/06/2008. (cw, ). (cw, ). (Entered: 11/06/2008)
155 ORDER, (Telephonic Status Conference set for 11/14/2008 09:00 AM in teleconference before Algenon L. Marbley.). Signed by Algenon L. Marbley on 11/13/2008. (cw, ) (cw, ). (Entered: 11/13/2008)
156 MOTION to Consolidate Cases by Defendant Jennifer Brunner. (Coglianese, Richard) (Entered: 11/14/2008)
157 Supplemental Memorandum Opposing Motion for TRO in Skaggs (2:08cv1077, consolidated) filed by Intervenor Plaintiff Ohio Democratic Party. (McGinnis, Mark) (Entered: 11/16/2008)
158 Answer to the Plaintiffs 159 amended supplemental complaint by Defendant Jennifer Brunner. (Coglianese, Richard) Modified text and added link on 12/13/2008 (er1 ). (Entered: 11/19/2008)
159 AMENDED COMPLAINT (Supplemental Complaint) against Jennifer Brunner, State Of Ohio, filed by The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199. (Gentry, Caroline) (Entered: 11/21/2008)
160 ANSWER to 149 Complaint by Defendant Jennifer Brunner. (Coglianese, Richard) (Entered: 11/24/2008)
161 ANSWER to Complaint filed by ODP (docket no. 149 ) by Intervenor State Of Ohio. (Jennings, Sharon) (Entered: 11/24/2008)
162 MOTION to Enforce Judgment − Court's October 27, 2008 Order − by Plaintiff The Northeast Ohio Coalition for the Homeless. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (Gentry, Caroline) (Entered: 11/26/2008)
163 RESPONSE in Opposition re 162 MOTION to Enforce Judgment − Court's October 27, 2008 Order − filed by Defendant Jennifer Brunner. (Attachments: # 1 Exhibit Tie Vote Decision) (Coglianese, Richard) (Entered: 11/26/2008)
164 REPLY to Response to Motion re 162 MOTION to Enforce Judgment − Court's October 27, 2008 Order − filed by Plaintiff The Northeast Ohio Coalition for the Homeless. (Attachments: # 1 Exhibit Skaggs Complaint) (Gentry, Caroline) (Entered: 11/26/2008)
165 ANSWER to 159 Amended Complaint by Intervenor State Of Ohio. (Jennings, Sharon) (Entered: 12/08/2008)
166 MOTION for Extension of Time New date requested 1/12/2009. by Plaintiffs The Northeast Ohio Coalition for the Homeless, Kyle Wangler, James Wise, Columbus Coalition for the Homeless, Service Employees International Union, Local 1199. (Hollenbaugh, H. Ritchey) (Entered: 12/12/2008)
167 MOTION to Enjoin the Ohio Supreme Court's Order in State ex rel. Skaggs v. Brunner and Renewed Motion to Enforce the Judgment; Oral Argument Requested by Plaintiff The Northeast Ohio Coalition for the Homeless. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H) (Gentry, Caroline) (Entered: 12/12/2008)
168 ORDER denying 166 Motion for Extension of Time for failure to provide evidence of compliance with Local Civil Rule 7.3. Signed by Terence P Kemp on 12/16/08. (jr) (Entered: 12/16/2008)
169 MOTION for Extension of Time New date requested 1/12/2009. by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199. (Attachments: # 1 Text of Proposed Order) (Hollenbaugh, H. Ritchey) (Entered: 12/17/2008)
170 ORDER granting 145 & 169 Motions for Extension of Time: Pltfs' opening motion & brief re: reasonable fee & costs award due w/in thirty (30) days − defts' opposition due twenty−one (21) days thereafter − pltfs' reply due eleven (11) days thereafter. Signed by Algenon L. Marbley on 12/18/2008. (kk2) (Entered: 12/18/2008)

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171 Mail Returned as Undeliverable − insufficient address. Mail (Doc 170 ) sent to Subodh Chandra (jr) (Entered: 12/29/2008)
172 MOTION for Extension of Time New date requested 1/16/2009. by Defendant Jennifer Brunner. (Epstein, Aaron) (Entered: 12/30/2008)
173 ORDER granting 172 Motion for Extension of Time to file response to 167 − ext to 1/16/09. Signed by Terence P Kemp on 12/31/08. (jr) (Entered: 12/31/2008)
Set/Reset Deadlines as to 167 MOTION to Enjoin the Ohio Supreme Court's Order in State ex rel. Skaggs v. Brunner and Renewed Motion to Enforce the Judgment; Oral Argument Requested. Responses due by 1/16/2009 (jr) (Entered: 12/31/2008)
174 RESPONSE in Opposition re 167 MOTION to Enjoin the Ohio Supreme Court's Order in State ex rel. Skaggs v. Brunner and Renewed Motion to Enforce the Judgment; Oral Argument Requested filed by Defendant Jennifer Brunner. (Epstein, Aaron) (Entered: 01/16/2009)
175 RESPONSE in Opposition re 167 MOTION to Enjoin the Ohio Supreme Court's Order in State ex rel. Skaggs v. Brunner and Renewed Motion to Enforce the Judgment; Oral Argument Requested filed by Intervenor State Of Ohio. (Jennings, Sharon) (Entered: 01/16/2009)
176 Supplemental BRIEF on What Constitutes a Reasonable Fee and Costs Award by Plaintiffs The Northeast Ohio Coalition for the Homeless & Service Employees International Union, Local 1199. (Gentry, Caroline) Modified on 1/21/2009 to clarify text (kk2). (Entered: 01/20/2009)
177 Supplemental AFFIDAVIT of Caroline H. Gentry by Plaintiffs The Northeast Ohio Coalition for the Homeless & Service Employees International Union, Local 1199. (Gentry, Caroline) (Entered: 01/20/2009)
178 AFFIDAVIT of H. Ritchey Hollenbaugh by Plaintiffs The Northeast Ohio Coalition for the Homeless & Service Employees International Union, Local 1199. (Gentry, Caroline) (Entered: 01/20/2009)
179 Second MOTION for Attorneys' Fees and Costs by Plaintiffs The Northeast Ohio Coalition for the Homeless & Service Employees International Union, Local 1199. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (Gentry, Caroline) (Entered: 01/20/2009)
180 AFFIDAVIT of Caroline H. Gentry by Plaintiffs The Northeast Ohio Coalition for the Homeless & Service Employees International Union, Local 1199. (Gentry, Caroline) (Entered: 01/20/2009)
181 AFFIDAVIT of Subodh Chandra by Plaintiffs The Northeast Ohio Coalition for the Homeless & Service Employees International Union, Local 1199. (Gentry, Caroline) (Entered: 01/20/2009)
182 AFFIDAVIT of H. Ritchey Hollenbaugh by Plaintiffs The Northeast Ohio Coalition for the Homeless & Service Employees International Union, Local 1199. (Gentry, Caroline) (Entered: 01/20/2009)
183 MOTION for Reconsideration re 108 Order on Motion to Dismiss by Plaintiffs The Northeast Ohio Coalition for the Homeless & Service Employees International Union, Local 1199. (Gentry, Caroline) Modified on 1/22/2009 to clarify text (kk2). (Entered: 01/20/2009)
184 AFFIDAVIT of Brian P. Davis by Plaintiffs The Northeast Ohio Coalition for the Homeless & Service Employees International Union, Local 1199. (Gentry, Caroline) (Entered: 01/20/2009)
185 AFFIDAVIT of Cynthia D. Miller by Plaintiffs The Northeast Ohio Coalition for the Homeless & Service Employees International Union, Local 1199. (Gentry, Caroline) (Entered: 01/20/2009)
186 REPLY to Response to 167 MOTION to Enjoin the Ohio Supreme Court's Order in State ex rel. Skaggs v. Brunner and Renewed Motion to Enforce the Judgment; Oral Argument Requested filed by Plaintiffs The Northeast Ohio Coalition for the

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02/13/2009
02/17/2009
02/26/2009 02/27/2009 02/27/2009 02/27/2009 02/27/2009 02/27/2009 02/27/2009 02/27/2009 02/27/2009 03/02/2009 03/10/2009
03/10/2009 03/11/2009 03/20/2009

Homeless, Service Employees International Union, Local 1199. (Gentry, Caroline) (Entered: 01/27/2009)
187 Unopposed MOTION for Extension of Time to File Response/Reply as to 179 MOTION for Attorney Fees & 183 MOTION for Reconsideration re 108 Order on Motion to Dismiss/Lack of Jurisdiction by Defendant Jennifer Brunner & Intervenor State Of Ohio. New date requested 2/27/2009. (Coglianese, Richard) Modified on 2/17/2009 to clarify text (kk2). (Entered: 02/13/2009)
188 ORDER granting # 187 Motion for Extension of Time to File Response re # 179 MOTION for Attorney Fees and # 183 MOTION for Reconsideration. Responses due by 2/27/2009. Signed by Magistrate Judge Terence P Kemp on 2/17/2009. (pes) (Entered: 02/17/2009)
189 NOTICE of Appearance by Michael Joseph Schuler for Defendant Jennifer Brunner (Schuler, Michael) (Entered: 02/26/2009)
190 NOTICE of Withdrawal and Substitution of Counsel by Craig A Calcaterra for Intervenor State Of Ohio (Calcaterra, Craig) Modified on 3/2/2009 to correct text (kk2). (Entered: 02/27/2009)
191 Memorandum Opposing re 176 Supplemental Brief for Attorneys Fees filed by Defendant Jennifer Brunner. (Coglianese, Richard) Modified on 3/2/2009 to clarify text (kk2). (Entered: 02/27/2009)
192 RESPONSE in Opposition re 179 MOTION for Attorney Fees filed by Defendant Jennifer Brunner. (Coglianese, Richard) (Entered: 02/27/2009)
193 RESPONSE in Opposition re 183 MOTION for Reconsideration re 108 Order on Motion for Attorney Fees filed by Defendant Jennifer Brunner. (Coglianese, Richard) Modified on 3/2/2009 to correct text (kk2). (Entered: 02/27/2009)
194 Memorandum Opposing re 176 Supplemental Brief for attorneys fees filed by Intervenor State Of Ohio. (Calcaterra, Craig) Modified on 3/2/2009 to clarify text (kk2). (Entered: 02/27/2009)
195 RESPONSE in Opposition re 179 MOTION for Attorney Fees filed by Intervenor State Of Ohio. (Calcaterra, Craig) (Entered: 02/27/2009)
196 RESPONSE in Opposition re 183 MOTION for Reconsideration re 108 Order on Motion for Attorney Fees filed by Intervenor State Of Ohio. (Calcaterra, Craig) Modified on 3/2/2009 to correct text (kk2). (Entered: 02/27/2009)
MOTION for Reconsideration by Defendant Jennifer Brunner. SEE DOCKET # 191 FOR DOCUMENT (kk2) (Entered: 03/23/2009)
Notice of Correction: Docket text of 190 corrected to read as follows − "NOTICE of Withdrawal and Substitution of Counsel by Craig A Calcaterra for Intervenor State Of Ohio." (kk2) (Entered: 03/02/2009)
197 RESPONSE in Support re 179 MOTION for Attorney Fees filed by Plaintiffs The Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local 1199. (Gentry, Caroline) Modified on 3/11/2009 − doc deleted & re−filed as dkt #198 to correct filing event (kk2). (Entered: 03/10/2009)
198 REPLY to Response to 179 Second MOTION for Attorney Fees filed by Plaintiffs The Northeast Ohio Coalition for the Homeless & Service Employees International Union, Local 1199. (kk2) (Entered: 03/11/2009)
Notice of Correction: Former docket # 197 (Response in Support of Motion) filed by Caroline Gentry deleted & re−filed by Clerk as current docket # 198 (Reply to Response to Motion) to correct ECF filing event. (kk2) (Entered: 03/11/2009)
199 RESPONSE to Motion re 183 MOTION for Reconsideration re 108 Order on Motion for Attorney Fees,, Order on Motion to Dismiss/Lack of Jurisdiction, PLAINTIFFS' MEMORANDUM IN OPPOSITION TO DEFENDANT BRUNNER'S MOTION FOR RECONSIDERATION filed by Plaintiff The Northeast Ohio Coalition for the Homeless. (Gentry, Caroline) Modified on 3/23/2009 − doc deleted & re−filed as dkt #200 to correct ECF filing event & document links (kk2). (Entered: 03/20/2009)

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03/20/2009 03/23/2009 04/03/2009 04/29/2009
07/28/2009
07/28/2009
07/30/2009
08/12/2009 08/28/2009 08/31/2009 09/10/2009 04/16/2010 04/19/2010
04/19/2010 05/25/2010 06/03/2010 06/03/2010

200 RESPONSE in Opposition re 191 MOTION for Reconsideration filed by Plaintiff The Northeast Ohio Coalition for the Homeless. (kk2) (Entered: 03/23/2009)
Notice of Correction: Former docket # 199 (Response to Motion) filed by Caroline Gentry deleted & re−filed by Clerk as current docket # 200 (Response in Opposition to Motion) to correct ECF filing event & document linking. (kk2) (Entered: 03/23/2009)
201 REPLY to Response to 191 MOTION for Reconsideration filed by Defendant Jennifer Brunner. (Coglianese, Richard) Modified on 4/6/2009 to add link (kk2). (Entered: 04/03/2009)
202 ORDER Setting Hearing on Motions 96 & 179 MOTIONS for Attorney Fees : Motions Hearing set for 7/22/2009 @ 10:00 AM in Courtroom 1 − Columbus before Judge Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 04/29/2009. (cw, ) (Entered: 04/29/2009)
203 OPINION AND ORDER DENYING Defendants' Motion for Reconsideration and Plaintiffs' Motion for Reconsideration. The Court GRANTS Plaintiffs' First and Second Motions for Attorneys Fees and Costs and AWARDS $401,905.50 in attorneys' fees and $29,468.55 in costs and expenses, for a total of $431,374.05. Signed by Judge Algenon L. Marbley on 7/28/2009. (pes1) (Entered: 07/28/2009)
204 MOTION for Reconsideration re 203 Opinion and Order by Plaintiffs The Northeast Ohio Coalition for the Homeless & Service Employees International Union, Local 1199. (Gentry, Caroline) Modified on 7/29/2009 to clarify text (kk2). (Entered: 07/28/2009)
205 ORDER granting 204 Motion for Reconsideration. The Court hereby REVISES its 7/28/2009 203 Order awarding fees and costs to include Attorney Subodh Chandra's 2006 fees and costs. The resulting combined revised award for Plaintiffs First and Second Motions for Attorneys' Fees and Costs is as follows: $474,418.50 in attorneys' fees and $29,995.61 in costs and expenses, for a total of $504,414.11. Signed by Judge Algenon L. Marbley on 7/30/2009. (pes1) (Entered: 07/30/2009)
206 ORDER denying 162 Motion to Enforce Judgment; denying 167 Motion to enjoin. Signed by Judge Algenon L. Marbley on 08/12/2009. (cw, ) (Entered: 08/12/2009)
207 NOTICE OF APPEAL as to 205 Order on Motion for Reconsideration by Intervenor State Of Ohio. Filing fee $ 455. (Gale, Erick) (Entered: 08/28/2009)
Filing fee: $ 455, receipt number 200COL9116 (re 207 Appeal by Intervenor State of Ohio). (kjm) Modified on 9/2/2009 to add document link (kk2). (Entered: 09/01/2009)
USCA Case Number 09−4111 for 207 Notice of Appeal filed by State Of Ohio. (er1 ) (Entered: 09/10/2009)
208 ORDER SETTING A Status Conference for 4/19/2010 @ 10:30 AM in Chambers before Judge Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 04/16/2010. (cw) (Entered: 04/16/2010)
209 STIPULATION of Dismissal of the Claims of Plaintiff James Wise Without Prejudice by Plaintiffs Service Employees International Union Local 1199, The Northeast Ohio Coalition for the Homeless, Columbus Coalition for the Homless, Kyle Wangler, James Wise & Defendant Jennifer Brunner (Gentry, Caroline) Modified on 4/20/2010 to correct filers (kk2). (Entered: 04/19/2010)
210 CONSENT DECREE. Signed by Judge Algenon L. Marbley on 04/19/2010. (Attachments: # 1 Attachment) (cw) (Entered: 04/19/2010)
211 ORDER of USCA as to 207 Notice of Appeal filed by State Of Ohio: The Sixth Circuit has DISMISSED this cause for want of prosecution. (kjm1) (Entered: 05/25/2010)
212 Third MOTION for Attorney Fees and Costs by Plaintiffs Columbus Coalition for the Homeless, Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless & Kyle Wangler. (Gentry, Caroline) (Entered: 06/03/2010)
213 AFFIDAVIT of Caroline H. Gentry re 212 Third MOTION for Attorney Fees and Costs by Plaintiffs Columbus Coalition for the Homeless, Service Employees

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06/03/2010 06/03/2010 06/24/2010 06/24/2010

International Union, Local 1199, The Northeast Ohio Coalition for the Homeless & Kyle Wangler. (Attachments: # 1 Exhibit A) (Gentry, Caroline) Modified on 6/4/2010 to fix text (kk2). (Entered: 06/03/2010)
214 AFFIDAVIT of H. Ritchey Hollenbaugh re 212 Third MOTION for Attorney Fees and Costs by Plaintiffs Columbus Coalition for the Homeless, Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless & Kyle Wangler. (Attachments: # 1 Exhibit A) (Gentry, Caroline) Modified on 6/4/2010 to fix text (kk2). (Entered: 06/03/2010)
215 AFFIDAVIT of Subodh Chandra re 212 Third MOTION for Attorney Fees and Costs by Plaintiffs Columbus Coalition for the Homeless, Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless & Kyle Wangler. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (Gentry, Caroline) Modified on 6/4/2010 to fix text (kk2). (Entered: 06/03/2010)
216 MOTION for Extension of Time to File Response/Reply re 212 Third MOTION for Attorney Fees and Costs by Defendant Jennifer Brunner & Intervenor State Of Ohio. New date requested 8/9/2010. (Coglianese, Richard) Modified on 6/25/2010 to correct text & ECF filing event (kk2). (Entered: 06/24/2010)
217 Transcript of Status Conference Proceedings held on April 19, 2010, before The Honorable Algenon L. Marbley. Court Reporter/Transcriber Shawna J. Evans, Telephone number (614) 719−3316. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

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

06/28/2010 08/09/2010 08/25/2010
08/30/2010 09/09/2010 09/09/2010

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 7/15/2010. Redacted Transcript Deadline set for 7/26/2010. Release of Transcript Restriction set for 9/22/2010. (sr) (Entered: 06/24/2010)
218 ORDER granting 216 Motion for Extension of Time to File Response re 212 Third MOTION for Attorney Fees and Costs. Responses due by 8/9/2010. Signed by Magistrate Judge Terence P Kemp on 6/28/2010. (pes1) (Entered: 06/28/2010)
219 RESPONSE in Opposition re 212 Third MOTION for Attorney Fees and Costs filed by Defendant Jennifer Brunner & Intervenor State Of Ohio. (Attachments: # 1 Exhibit 1, Affidavit of Brian Shinn, # 2 Exhibit 2, Affidavit of Susan Ashbrook, # 3 Exhibit 3, Affidavit of Richard Coglianese) (Gale, Erick) (Entered: 08/09/2010)
220 Consent MOTION for Extension of Time to File Response/Reply re 212 Third MOTION for Attorney Fees and Costs by Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless, Columbus Coalition for the Homeless, Kyle Wangler & Defendants State of Ohio, Jennifer Brunner. New date requested 9/9/2010. (Gentry, Caroline) Modified on 8/26/2010 to correct text & filers (kk2) (Entered: 08/25/2010)
221 ORDER granting 220 Motion for Extension of Time to File Reply re 212 Third MOTION for Attorney Fees and Costs − Replies due by 9/9/2010. Signed by Magistrate Judge Terence P Kemp on 8/30/2010. (pes1) (Entered: 08/30/2010)
222 REPLY to Response to 212 Third MOTION for Attorney Fees and Costs filed by Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless & Kyle Wangler. (Attachments: # 1 Exhibit 1) (Gentry, Caroline) (Entered: 09/09/2010)
223 AFFIDAVIT: Supplemental Declaration of Caroline H. Gentry re 222 Reply to Response to Motion by Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless & Kyle Wangler. (Gentry, Caroline) Modified on 9/10/2010 to clarify text (kk2) (Entered: 09/09/2010)

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09/09/2010
09/09/2010
11/01/2010
11/01/2010
11/02/2010 11/02/2010
11/02/2010 11/03/2010 11/17/2010 11/17/2010
11/30/2010 12/07/2010
12/29/2010 12/29/2010 01/11/2011
01/11/2011 01/11/2011

224 AFFIDAVIT: Supplemental Declaration of Subodh Chandra re 222 Reply to Response to Motion by Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless & Kyle Wangler. (Gentry, Caroline) Modified on 9/10/2010 to clarify text (kk2) (Entered: 09/09/2010)
225 AFFIDAVIT: Supplemental Declaration of H. Ritchey Hollenbaugh re 222 Reply to Response to Motion by Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless & Kyle Wangler. (Gentry, Caroline) Modified on 9/10/2010 to clarify text (kk2) (Entered: 09/09/2010)
226 ***WITHDRAWN*** MOTION for Temporary Restraining Order and Preliminary Injunction by Intervenor Plaintiff Ohio Democratic Party & Plaintiff The Northeast Ohio Coalition for the Homeless. [ELECTION ISSUE(S) CITED] (Attachments: # 1 Affidavit Nicholas Martin) (Hollenbaugh, H. Ritchey) (Entered: 11/01/2010)
227 ORDER Setting 65.1 Conference on 226 MOTION for Temporary Restraining Order and Preliminary Injunction : Motion 65.1 Conference set for 11/3/2010 @ 10:00 AM in Chambers before Judge Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 11/01/2010. (cw) (Entered: 11/01/2010)
228 ***WITHDRAWN*** MOTION to Intervene by Movants Ohio Republican Party, Justin Barnes, Robert Gillespie. (Schuck, James) Modified on 11/3/2010 to correct text (kk2) (Entered: 11/02/2010)
229 NOTICE of Appearance by James P Schuck, Maria J Armstrong, Anne Marie Sferra & Christopher N Slagle for Movants Justin Barnes, Robert Gillespie and Ohio Republican Party (Schuck, James) Modified on 11/3/2010 to add Armstrong, Sferra & Slagle (kk2) (Entered: 11/02/2010)
230 ***WITHDRAWN*** Amended MOTION to Intervene by Movants Justin Barnes, Robert Gillespie & Ohio Republican Party. (Schuck, James) (Entered: 11/02/2010)
231 ***WITHDRAWN*** RESPONSE in Opposition re 226 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Defendant Jennifer Brunner & Intervenor State Of Ohio. (Coglianese, Richard) (Entered: 11/03/2010)
232 ORDER withdrawing 226 Motion for TRO and 231 Response. Signed by Judge Algenon L. Marbley on 11/17/2010. (cw) (Entered: 11/17/2010)
233 NOTICE OF WITHDRAWAL OF DOCUMENT re 228 MOTION to Intervene & 230 Amended MOTION to Intervene by Movants Justin Barnes, Robert Gillespie and Ohio Republican Party (Schuck, James) Modified on 11/18/2010 to clarify text (kk2) (Entered: 11/17/2010)
234 OPINION AND ORDER granting in part and denying in part 212 Motion for Attorney Fees. Signed by Judge Algenon L. Marbley on 11/30/2010. (cw) (Entered: 11/30/2010)
235 MOTION to Withdraw re 226 Motion for Temporary Restraining Order and Preliminary Injunction by Intervenor Plaintiff Ohio Democratic Party & Plaintiff The Northeast Ohio Coalition for the Homeless. (Hollenbaugh, H. Ritchey) Modified on 12/8/2010 to add doc link (kk2) (Entered: 12/07/2010)
236 NOTICE OF APPEAL as to 234 Opinion and Order on Motion for Attorney Fees by Intervenor State Of Ohio. Filing fee $455. (Gale, Erick) (Entered: 12/29/2010)
USCA Appeal Fees received re 236 Notice of Appeal filed by State Of Ohio: $ 455.00, receipt number 15427 (jcw) (Entered: 12/29/2010)
237 NOTICE OF CROSS APPEAL as to 234 Opinion and Order on Motion for Attorney Fees by Plaintiffs Service Employees International Union, Local 1199 & The Northeast Ohio Coalition for the Homeless (Filing fee $ 455.00, receipt number 0648−2957087) (Gentry, Caroline) (Entered: 01/11/2011)
238 NOTICE OF APPEAL as to 234 Opinion and Order on Motion for Attorney Fees by Defendant Jennifer Brunner. (Coglianese, Richard) Modified on 1/12/2011 to correct text & add doc link (kk2) (Entered: 01/11/2011)
USCA Appeal Fees received re 238 Notice of Appeal filed by Jennifer Brunner: $ 455.00, receipt number COL015638 (kk2) (Entered: 01/11/2011)

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01/11/2011 01/11/2011 01/11/2011 03/03/2011 08/01/2011
10/17/2011
04/30/2012 05/07/2012 05/07/2012 05/08/2012 05/08/2012
05/09/2012 05/09/2012 05/09/2012 05/09/2012 05/09/2012 05/09/2012

USCA Case Number 11−3036 for 237 Notice of Cross Appeal filed by Service Employees International Union, Local 1199 & The Northeast Ohio Coalition for the Homeless. (ddo1) (Entered: 01/11/2011)
USCA Case Number 11−3037 for 238 Notice of Appeal filed by Jennifer Brunner. (ddo1) (Entered: 01/11/2011)
USCA Case Number 11−3035 for 236 Notice of Appeal filed by State Of Ohio. (ddo1) (Entered: 01/11/2011)
239 ORDER finding as moot 235 Motion to Withdraw. Signed by Judge Algenon L. Marbley on 3/3/2011. (cw) (Entered: 03/03/2011)
240 NOTICE by Defendant Jennifer Brunner re 210 Consent Judgment NOTICE OF DEFENDANT JON HUSTED, OHIO SECRETARY OF STATE, OF CHANGES IN OHIO STATUTORY LAW THAT MODIFY THE CONSENT DECREE ENTERED INTO ON APRIL 19, 2010 (Attachments: # 1 Exhibit 1; 129th General Assembly, Amended Substitute House Bill Number 194, # 2 Exhibit 2; 129th General Assembly, Amended Substitute House Bill Number 224) (Coglianese, Richard) (Entered: 08/01/2011)
241 NOTICE of Stay of House Bill 194 and Continued Effect of the Consent Decree by Plaintiffs Columbus Coalition for the Homeless, Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless, Kyle Wangler & Intervenor Plaintiff Ohio Democratic Party (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5) (Gentry, Caroline) (Entered: 10/17/2011)
242 NOTICE of Appearance by Michael John Hunter for Plaintiff Service Employees International Union, Local 1199 (Hunter, Michael) (Entered: 04/30/2012)
243 MOTION for Leave to Appear Pro Hac Vice of Stephen Berzon (Filing fee $ 200) by Plaintiff Service Employees International Union, Local 1199. (Attachments: # 1 Certificate of Good Standing) (Hunter, Michael) (Entered: 05/07/2012)
244 MOTION for Leave to Appear Pro Hac Vice of Stacey Leyton (Filing fee $ 200) by Plaintiff Service Employees International Union, Local 1199. (Attachments: # 1 Certificate of Good Standing) (Hunter, Michael) (Entered: 05/07/2012)
245 MOTION to Substitute Party Under Fed. R. Civ. P. 25(d) by Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless. (Chandra, Subodh) (Entered: 05/08/2012)
246 MOTION Plaintiffs' Urgent Motion to Enjoin State−Court Proceedings and for an Order to Show Cause Why Relators Thomas Niehaus and Louis Blessing, Jr. Should Not Be Held in Contempt by Intervenor Plaintiff Ohio Democratic Party, Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (Gentry, Caroline) (Entered: 05/08/2012)
247 NOTICE by Intervenor State Of Ohio Notice of Withdrawal and Substitution of Trial Attorney for Intervenor−Defendant the State of Ohio (Gale, Erick) (Entered: 05/09/2012)
248 ORDER SETTING TELEPHONIC STATUS CONFERENCE for TODAY, 5/9/2012 AT 04:00 PM before Judge Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 5/9/2012. (cw) (Entered: 05/09/2012)
249 NOTICE by Defendant Jennifer Brunner Notice of Withdrawal and Substitution of Trial Attorney for Defendant Secretary of State Husted (Coglianese, Richard) (Entered: 05/09/2012)
250 NOTICE by Defendant Jennifer Brunner Notice of Withdrawal of Attorney for Defendant Secretary of State Jon Husted (Sikora, Damian) (Entered: 05/09/2012)
251 NOTICE by Defendant Jennifer Brunner Notice of Withdrawal of Attorney for Defendant Secretary of State Jon Husted (Schuler, Michael) (Entered: 05/09/2012)
252 NOTICE by Defendant Jennifer Brunner Notice of Withdrawal of Attorney for Defendant Secretary of State Jon Husted (Chin, Pearl) (Entered: 05/09/2012)

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05/09/2012 05/10/2012 05/10/2012 05/10/2012 05/10/2012
05/10/2012
05/11/2012 05/11/2012 05/11/2012 05/11/2012 05/15/2012 05/17/2012 05/17/2012

253 ORDER granting 243 & 244 Motions for Leave for Stephen Berzon & Stacey Leyton to Appear Pro Hac Vice on behalf of plaintiff Service Employees International Union, Local 1199. Signed by Magistrate Judge Terence P Kemp on 5/9/2012. (kk2) (Entered: 05/09/2012)
254 ORDER granting 245 Motion to Substitute Party. Jon Husted (in his official capacity as Secretary of the State of Ohio) added & Jennifer Brunner (in her official capacity as Secretary of State of Ohio) terminated. Signed by Magistrate Judge Terence P Kemp on 5/10/2012. (kk2) (Entered: 05/10/2012)
255 RESPONSE to Motion re 246 MOTION Plaintiffs' Urgent Motion to Enjoin State−Court Proceedings and for an Order to Show Cause Why Relators Thomas Niehaus and Louis Blessing, Jr. Should Not Be Held in Contempt filed by Interested Parties Thomas E. Niehaus, Louis W. Blessing, Jr.. (Dornette, W) (Entered: 05/10/2012)
256 ORDER SETTING TELEPHONIC Status Conference for 5/10/2012 04:00 PM before Judge Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 5/10/2012. (cw) (Entered: 05/10/2012)
257 REPLY to Response to Motion re 246 MOTION Plaintiffs' Urgent Motion to Enjoin State−Court Proceedings and for an Order to Show Cause Why Relators Thomas Niehaus and Louis Blessing, Jr. Should Not Be Held in Contempt filed by Intervenor Plaintiff Ohio Democratic Party, Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless. (Attachments: # 1 Exhibit A) (Gentry, Caroline) (Entered: 05/10/2012)
ORAL ORDER regarding proceeding held before Judge Algenon L. Marbley: Status Conference held on 5/10/2012 re 246 MOTION Plaintiffs' Urgent Motion to Enjoin State−Court Proceedings and for an Order to Show Cause Why Relators Thomas Niehaus and Louis Blessing, Jr. Should Not Be Held in Contempt filed by Service Employees International Union, Local 1199, Ohio Democratic Party, The Northeast Ohio Coalition for the Homeless. Said Motion 246 is GRANTED to the extent that Relators for Defendant, State of Ohio, are enjoined from further prosecution of their suit for mandamus filed in the Supreme Court of Ohio S. Ct. Case No. 12−0639. Relators are ORDERED to dismiss the mandamus action without prejudice forthwith. A written Opinion and Order will follow. Judge Algenon L. Marbley on 5/10/2012. (cw) (Entered: 05/10/2012)
258 NOTICE by Interested Parties Louis W. Blessing, Jr., Thomas E. Niehaus of Compliance with Court's Order (Dornette, W) (Entered: 05/11/2012)
259 ORDER SETTING TELEPHONIC Status Conference for 5/16/2012 at 04:00 PM before Judge Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 5/16/2012. (cw) (Entered: 05/11/2012)
260 Notice of Dismissal Without Prejudice in Case No. 2012−0639, STATE ex rel. THOMAS E. NIEHAUS and LOUIS W. BLESSING, JR, Relators v. OHIO SECRETARY OF STATE JON HUSTED, Respondent, in the Supreme Court of Ohio. (cw) (Entered: 05/11/2012)
261 ORDER granting 246 Plaintiff's Urgent Motion to Enjoin Relators' State Court Proceedings. Signed by Judge Algenon L. Marbley on 5/11/2012. (cw) (Entered: 05/11/2012)
262 ORDER confirming Telephone Status Conference set for Wednesday, 5/16/2012 04:00 PM before Judge Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 5/15/2012. (cw) (Entered: 05/15/2012)
263 MOTION for Leave to Appear Pro Hac Vice of David M. Lieberman (Filing fee $ 200) by Intervenor State Of Ohio. (Attachments: # 1 Exhibit Certificate of Good Standing) (Corn, Peggy) (Entered: 05/17/2012)
264 ORDER SETTING BRIEFING SCHEDULE AND ORAL ARGUMENT. Oral Argument is set for 6/27/2012 02:00 PM in Courtroom 1 − Columbus before Judge Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 5/17/2012. (cw) (Entered: 05/17/2012)

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05/18/2012 05/21/2012 05/22/2012 05/25/2012 05/30/2012 05/30/2012 05/30/2012 05/30/2012
05/30/2012 05/30/2012 05/30/2012
05/30/2012
05/30/2012

265 MOTION for Leave to Appear Pro Hac Vice of Danielle E. Leonard (Filing fee $ 200) by Plaintiff Service Employees International Union, Local 1199. (Attachments: # 1 Certificate of Good Standing) (Hunter, Michael) (Entered: 05/18/2012)
266 ORDER granting 263 Motion for Leave for David M Lieberman to Appear Pro Hac Vice on behalf of Intervenor State of Ohio. Signed by Magistrate Judge Terence P Kemp on 5/21/2012. (kk2) (Entered: 05/21/2012)
267 ORDER granting 265 Motion for Leave for Danielle E Leonard to Appear Pro Hac Vice on behalf of plaintiff Service Employees International Union, Local 1199. Signed by Magistrate Judge Terence P Kemp on 5/22/2012. (kk2) (Entered: 05/22/2012)
268 NOTICE of Appearance by Joseph Norbert Rosenthal for Defendant Jon Husted (Rosenthal, Joseph) (Entered: 05/25/2012)
269 Reply re 264 Order, Set Deadlines/Hearings, 210 Consent Judgment Memorandum of Law of Defendant, Ohio Secretary of State Jon Husted, Concerning the Legal Validity of the Consent Decree Entered April 19, 2010 [Doc. 210] by Defendant Jon Husted. (Epstein, Aaron) (Entered: 05/30/2012)
270 BRIEF re 264 Order, Set Deadlines/Hearings by Intervenor State Of Ohio. (Corn, Peggy) (Entered: 05/30/2012)
271 BRIEF re 264 Order, Set Deadlines/Hearings by Intervenor Plaintiff Ohio Democratic Party, Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless. (Gentry, Caroline) (Entered: 05/30/2012)
272 AFFIDAVIT re 271 Brief /Declaration of L. Bradfield Hughes by Intervenor Plaintiff Ohio Democratic Party, Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W) (Gentry, Caroline) (Entered: 05/30/2012)
273 BRIEF re 264 Order, Set Deadlines/Hearings, 210 Consent Judgment by Interested Parties Louis W. Blessing, Jr., Thomas E. Niehaus. (Attachments: # 1 Exhibit A − D) (Dornette, W) (Entered: 05/30/2012)
274 AFFIDAVIT re 271 Brief /Declaration of Donald J. McTigue by Intervenor Plaintiff Ohio Democratic Party, Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless. (Attachments: # 1 Exhibit A) (Gentry, Caroline) (Entered: 05/30/2012)
275 AFFIDAVIT re 271 Brief /Declaration of Caroline H. Gentry by Intervenor Plaintiff Ohio Democratic Party, Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R) (Gentry, Caroline) (Entered: 05/30/2012)
276 AFFIDAVIT re 271 Brief /Declaration of Daniel B. Miller by Intervenor Plaintiff Ohio Democratic Party, Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K) (Gentry, Caroline) (Entered: 05/30/2012)
277 AFFIDAVIT re 271 Brief /Declaration of Melina Meneguin−Layerenza by Intervenor Plaintiff Ohio Democratic Party, Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J−1, # 11 Exhibit J−2, # 12 Exhibit K, # 13 Exhibit L) (Gentry, Caroline) (Entered: 05/30/2012)

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278 NOTICE of Appearance by Ashlie Case Sletvold for Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless (Sletvold, Ashlie) (Entered: 06/05/2012)
279 Reply re 264 Order, Set Deadlines/Hearings by Intervenor State Of Ohio. (Corn, Peggy) (Entered: 06/06/2012)
280 Reply re 271 Brief, 264 Order, Set Deadlines/Hearings Reply Memorandum of Law Concerning Legal Validity of Consent Decree by Defendant Jon Husted. (Epstein, Aaron) (Entered: 06/06/2012)
281 Reply re 264 Order, Set Deadlines/Hearings Plaintiffs' Reply Memorandum of Law Regarding the Validity of this Court's April 19, 2010 Consent Decree and Defendants' Request to Modify or Terminate it by Intervenor Plaintiff Ohio Democratic Party, Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless. (Gentry, Caroline) (Entered: 06/06/2012)
282 Reply re 271 Brief, 264 Order, Set Deadlines/Hearings Response of Relators in Support of Vacation of Consent Decree by Interested Parties Louis W. Blessing, Jr., Thomas E. Niehaus. (Dornette, W) (Entered: 06/06/2012)
PHV Filing fees re: 243 , 244 , and 265 − $ 600, receipt number COL22727 (pes1) (Entered: 06/13/2012)
283 MOTION for Leave to Appear Pro Hac Vice of Barbara J. Chisholm (Filing fee $ 200, receipt number 22727) by Plaintiff Service Employees International Union, Local 1199. (Attachments: # 1 Certificate of Good Standing) (Hunter, Michael) (Entered: 06/13/2012)
284 ORDER granting 283 Motion for Leave for Barbara J Chisholm to Appear Pro Hac Vice on behalf of plaintiff Service Employees International Union, Local 1199. Signed by Magistrate Judge Terence P Kemp on 6/14/2012. (kk2) (Entered: 06/14/2012)
285 Transcript of Telephonic 65.1 Conference Proceedings held on May 9, 2012 before Judge Algenon L Marbley. Court Reporter/Transcriber Shawna J Evans, Telephone number 614−719−3316. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

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

06/18/2012

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 7/9/2012. Redacted Transcript Deadline set for 7/19/2012. Release of Transcript Restriction set for 9/17/2012. (kk2) (Entered: 06/18/2012)
286 Transcript of Telephonic Status Conference Proceedings held on May 10, 2012 before Judge Algenon L Marbley. Court Reporter/Transcriber Shawna J Evans, Telephone number 614−719−3316. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

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

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 7/9/2012. Redacted Transcript Deadline set for 7/19/2012. Release of Transcript Restriction set for 9/17/2012. (kk2) (Entered: 06/18/2012)

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287 NOTICE by Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless of Withdrawal of Counsel (Gentry, Caroline) (Entered: 06/19/2012)
288 MOTION to Modify April 19, 2010 Consent Decree to Prevent Constitutional Violations by Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless. (Attachments: # 1 Text of Proposed Order) (Gentry, Caroline) (Entered: 06/20/2012)
289 AFFIDAVIT re 288 MOTION to Modify April 19, 2010 Consent Decree to Prevent Constitutional Violations /Declaration of Natalya DeRobertis−Theye by Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless. (Attachments: # 1 Exhibit A, # 2 Exhibit B−1, # 3 Exhibit B−2, # 4 Exhibit B−3, # 5 Exhibit B−4, # 6 Exhibit B−5, # 7 Exhibit B−6) (Gentry, Caroline) (Entered: 06/20/2012)
290 AFFIDAVIT re 288 MOTION to Modify April 19, 2010 Consent Decree to Prevent Constitutional Violations /Declaration of Caroline H. Gentry by Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB, # 29 Exhibit CC, # 30 Exhibit DD, # 31 Exhibit EE, # 32 Exhibit FF, # 33 Exhibit GG, # 34 Exhibit HH, # 35 Exhibit II, # 36 Exhibit JJ, # 37 Exhibit KK, # 38 Exhibit LL, # 39 Exhibit MM, # 40 Exhibit NN, # 41 Exhibit OO, # 42 Exhibit PP) (Gentry, Caroline) (Entered: 06/20/2012)
291 AFFIDAVIT re 288 MOTION to Modify April 19, 2010 Consent Decree to Prevent Constitutional Violations /Declaration of Bradfield Hughes by Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W) (Gentry, Caroline) (Entered: 06/20/2012)
292 AFFIDAVIT re 288 MOTION to Modify April 19, 2010 Consent Decree to Prevent Constitutional Violations /Declaration of David C. Kimball by Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Gentry, Caroline) (Entered: 06/20/2012)
293 AFFIDAVIT re 288 MOTION to Modify April 19, 2010 Consent Decree to Prevent Constitutional Violations /Declaration of Emma Kornetsky by Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless. (Attachments: # 1 Exhibit A) (Gentry, Caroline) (Entered: 06/20/2012)
294 AFFIDAVIT re 288 MOTION to Modify April 19, 2010 Consent Decree to Prevent Constitutional Violations /Declaration of Donald J. McTigue by Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (Gentry, Caroline) (Entered: 06/20/2012)
295 AFFIDAVIT re 288 MOTION to Modify April 19, 2010 Consent Decree to Prevent Constitutional Violations /Declaration of Melina Meneguin−Layerenza by Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J−1, # 11 Exhibit J−2, # 12 Exhibit K, # 13 Exhibit L) (Gentry, Caroline) (Entered: 06/20/2012)
296 AFFIDAVIT re 288 MOTION to Modify April 19, 2010 Consent Decree to Prevent Constitutional Violations /Declaration of Daniel B. Miller −− Part One by Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit

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D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB, # 29 Exhibit CC, # 30 Exhibit DD, # 31 Exhibit EE, # 32 Exhibit FF, # 33 Exhibit GG, # 34 Exhibit HH, # 35 Exhibit II, # 36 Exhibit JJ, # 37 Exhibit KK, # 38 Exhibit LL, # 39 Exhibit MM, # 40 Exhibit NN, # 41 Exhibit OO, # 42 Exhibit PP, # 43 Exhibit QQ, # 44 Exhibit RR, # 45 Exhibit SS, # 46 Exhibit TT, # 47 Exhibit UU, # 48 Exhibit VV, # 49 Exhibit WW−1, # 50 Exhibit WW−2, # 51 Exhibit XX, # 52 Exhibit YY, # 53 Exhibit ZZ) (Gentry, Caroline) (Entered: 06/20/2012)
297 AFFIDAVIT re 288 MOTION to Modify April 19, 2010 Consent Decree to Prevent Constitutional Violations /Declaration of Daniel B. Miller −− Part Two by Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless. (Attachments: # 1 Exhibit AAA, # 2 Exhibit BBB, # 3 Exhibit CCC, # 4 Exhibit DDD, # 5 Exhibit EEE, # 6 Exhibit FFF, # 7 Exhibit GGG, # 8 Exhibit HHH, # 9 Exhibit III, # 10 Exhibit JJJ, # 11 Exhibit KKK, # 12 Exhibit LLL, # 13 Exhibit MMM, # 14 Exhibit NNN, # 15 Exhibit OOO, # 16 Exhibit PPP, # 17 Exhibit QQQ, # 18 Exhibit RRR, # 19 Exhibit SSS, # 20 Exhibit TTT, # 21 Exhibit UUU, # 22 Exhibit VVV, # 23 Exhibit WWW, # 24 Exhibit XXX, # 25 Exhibit YYY−1, # 26 Exhibit YYY−2, # 27 Exhibit YYY−3, # 28 Exhibit YYY−4, # 29 Exhibit YYY−5, # 30 Exhibit YYY−6) (Gentry, Caroline) (Entered: 06/20/2012)
298 ORDER Regarding Plaintiffs' Request to Combine Hearings re 288 MOTION to Modify April 19, 2010 Consent Decree to Prevent Constitutional Violations filed by Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless. Signed by Judge Algenon L. Marbley on 6/22/2012. (cw) (Entered: 06/22/2012)
299 MOTION for Extension of Time to File New date requested 8/13/2012. by Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless. (Attachments: # 1 Text of Proposed Order) (Gentry, Caroline) (Entered: 06/25/2012)
300 NOTICE by Intervenor Plaintiff Ohio Democratic Party, Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless of Related Case (Gentry, Caroline) (Entered: 06/26/2012)
301 NOTICE by Intervenor Plaintiff Ohio Democratic Party, Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless /Plaintiffs' Amended Notice of Related Case (Gentry, Caroline) (Entered: 06/26/2012)
302 ORDER RELATING CASES AND FOR APPEARANCE OF NEW COUNSEL. Signed by Judge Algenon L. Marbley on 6/26/2012. (cw) (Entered: 06/26/2012)
303 MOTION EXTENSION OF TIME re 261 Order on Motion for Miscellaneous Relief by Intervenor Plaintiff Ohio Democratic Party. (McGinnis, Mark) (Entered: 06/26/2012)
304 NOTICE of Appearance by Jared Michael Klaus for Plaintiffs Columbus Coalition for the Homeless, Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless, Kyle Wangler (Klaus, Jared) (Entered: 06/26/2012)
Minute Entry for proceedings held before Judge Algenon L. Marbley: Motion Hearing held on 6/27/2012; The Court will issue an order w/n one (1) week. The Court will also send out an order with the deadlines for further motions to be filed. (Court Reporter S. Evans.) (bc1) (Entered: 06/29/2012)
305 RESPONSE in Opposition re 288 MOTION to Modify April 19, 2010 Consent Decree to Prevent Constitutional Violations filed by Interested Parties Louis W. Blessing, Jr., Thomas E. Niehaus. (Dornette, W) (Entered: 07/06/2012)
306 RESPONSE in Opposition re 288 MOTION to Modify April 19, 2010 Consent Decree to Prevent Constitutional Violations filed by Defendant Jon Husted, Intervenor State Of Ohio. (Attachments: # 1 Affidavit Affidavit of Jane M. Platten) (Corn, Peggy) (Entered: 07/06/2012)

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307 OPINION AND ORDER DENYING Defendants' Request to Vacate the Consent Decree. Signed by Judge Algenon L. Marbley on 7/9/2012. (cw) (Entered: 07/09/2012)
308 JOINT SCHEDULING ORDER Setting Hearing on Motions 288 MOTION to Modify April 19, 2010 Consent Decree to Prevent Constitutional Violations and 4 Motion for Preliminary Injunction & 25 Motion to Certify Class in Case No. 12−CV−562: Motions Hearing set for 7/30/2012 09:00 AM in Courtroom 1 − Columbus before Judge Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 7/9/2012. (cw) (Entered: 07/09/2012)
309 NOTICE by Intervenor State Of Ohio Notice of Withdrawal of Attorney for Intervenor−Defendant the State of Ohio (Lieberman, David) (Entered: 07/10/2012)
310 REPLY to Response to Motion re 288 MOTION to Modify April 19, 2010 Consent Decree to Prevent Constitutional Violations filed by Intervenor Plaintiff Ohio Democratic Party, Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless. (Attachments: # 1 Exhibit A − Revised Proposed Order) (Gentry, Caroline) (Entered: 07/13/2012)
311 AFFIDAVIT re 310 Reply to Response to Motion, /Reply Declaration of Brian Davis in Support of Plaintiffs' Motion to Modify April 19, 2010 Consent Decree to Prevent Constitutional Violations by Intervenor Plaintiff Ohio Democratic Party, Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless. (Gentry, Caroline) (Entered: 07/13/2012)
312 AFFIDAVIT re 310 Reply to Response to Motion, /Reply Declaration of Monica Moran in Support of Plaintiffs' Motion to Modify April 19, 2010 Consent Decree to Prevent Constitutional Violations by Intervenor Plaintiff Ohio Democratic Party, Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless. (Gentry, Caroline) (Entered: 07/13/2012)
313 AFFIDAVIT re 310 Reply to Response to Motion, /Declaration of Chris Redfern in Support of Plaintiffs' Motion to Modify April 19, 2010 Consent Decree to Prevent Constitutional Violations by Intervenor Plaintiff Ohio Democratic Party, Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless. (Gentry, Caroline) (Entered: 07/13/2012)
314 AFFIDAVIT re 310 Reply to Response to Motion, /Reply Declaration of Micky Trammell in Support of Plaintiffs' Motion to Modify April 19, 2010 Consent Decree to Prevent Constitutional Violations by Intervenor Plaintiff Ohio Democratic Party, Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless. (Gentry, Caroline) (Entered: 07/13/2012)
315 AFFIDAVIT re 310 Reply to Response to Motion, /Declaration of Nick Speelman in Support of Plaintiffs' Motion to Modify April 19, 2010 Consent Decree to Prevent Constitutional Violations by Intervenor Plaintiff Ohio Democratic Party, Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless. (Attachments: # 1 Exhibit A) (Gentry, Caroline) (Entered: 07/13/2012)
316 AFFIDAVIT re 310 Reply to Response to Motion, /Declaration of Natalya DeRobertis−Theye in Support of Plaintiffs' Motion to Modify April 19, 2010 Consent Decree to Prevent Constitutional Violations by Intervenor Plaintiff Ohio Democratic Party, Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless. (Attachments: # 1 Exhibit A) (Gentry, Caroline) (Entered: 07/13/2012)
317 AFFIDAVIT re 310 Reply to Response to Motion, /Reply Declaration of Cathrine J. Harshman in Support of Plaintiffs' Motion to Modify April 19, 2010 Consent Decree to Prevent Constitutional Violations by Intervenor Plaintiff Ohio Democratic Party, Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB, # 29 Exhibit CC, # 30 Exhibit DD, # 31 Exhibit EE, # 32 Exhibit FF, # 33 Exhibit GG, # 34 Exhibit HH, # 35 Exhibit II, # 36 Exhibit JJ, # 37 Exhibit KK, # 38 Exhibit LL, # 39 Exhibit MM, # 40 Exhibit NN, #

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41 Exhibit OO, # 42 Exhibit PP, # 43 Exhibit QQ, # 44 Exhibit RR, # 45 Exhibit SS, # 46 Exhibit TT, # 47 Exhibit UU, # 48 Exhibit VV) (Gentry, Caroline) (Entered: 07/13/2012)
318 AFFIDAVIT re 310 Reply to Response to Motion, /Supplemental Reply Declaration of Daniel B. Miller in Support of Plaintiffs' Motion to Modify April 19, 2010 Consent Decree to Prevent Constitutional Violations by Intervenor Plaintiff Ohio Democratic Party, Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB, # 29 Exhibit CC, # 30 Exhibit DD, # 31 Exhibit EE, # 32 Exhibit FF, # 33 Exhibit GG, # 34 Exhibit HH, # 35 Exhibit II, # 36 Exhibit JJ, # 37 Exhibit KK, # 38 Exhibit LL, # 39 Exhibit MM, # 40 Exhibit NN, # 41 Exhibit OO, # 42 Exhibit PP, # 43 Exhibit QQ, # 44 Exhibit RR, # 45 Exhibit SS Part 1, # 46 Exhibit SS Part 2, # 47 Exhibit SS Part 3, # 48 Exhibit TT) (Gentry, Caroline) (Entered: 07/13/2012)
319 NOTICE OF APPEAL as to 307 Order by Defendant Jon Husted, Intervenor State Of Ohio. Filing fee $ 455, receipt number 0648−3727541. (Corn, Peggy) (Entered: 07/19/2012)
320 NOTICE by Intervenor Plaintiff Ohio Democratic Party, Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless /Notice of Filing of Supplemental Declarations Submitting Late Discovery Documents (Gentry, Caroline) (Entered: 07/20/2012)
321 AFFIDAVIT /Second Supplemental Declaration of Daniel B. Miller in Support of Plaintiffs' Motion to Modify April 19, 2010 Consent Decree to Prevent Constitutional Violations by Intervenor Plaintiff Ohio Democratic Party, Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (Gentry, Caroline) (Entered: 07/20/2012)
322 AFFIDAVIT /Supplemental Declaration of Cathrine J. Harshman in Support of Plaintiffs' Motion to Modify April 19, 2010 Consent Decree to Prevent Constitutional Violations by Intervenor Plaintiff Ohio Democratic Party, Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O) (Gentry, Caroline) (Entered: 07/20/2012)
323 AMENDED DOCUMENT by Defendant Jon Husted, Intervenor State Of Ohio. Amendment to 319 Notice of Appeal . (Corn, Peggy) (Entered: 07/20/2012)
324 NOTICE by Interested Parties Louis W. Blessing, Jr., Thomas E. Niehaus, Defendant Jon Husted, Intervenor Plaintiff Ohio Democratic Party, Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless, Intervenor State Of Ohio re 308 Order Setting Hearing on Motion, Joint Notice Regarding Witnesses at July 30 and 31, 2012 Hearing (Gentry, Caroline) (Entered: 07/23/2012)
USCA Case Number 12−3916 for 319 Notice of Appeal filed by Jon Husted, State Of Ohio. Case Manager − Laura Jones. (jcw1) (Entered: 07/26/2012)
325 NOTICE by Plaintiff Service Employees International Union, Local 1199 Notice of Filing of Declarations (Chisholm, Barbara) (Entered: 07/27/2012)
326 AFFIDAVIT Declaration of Steven Tatar by Plaintiff Service Employees International Union, Local 1199. (Chisholm, Barbara) (Entered: 07/27/2012)
327 AFFIDAVIT Declaration of Hector Richard Zambrana by Plaintiff Service Employees International Union, Local 1199. (Chisholm, Barbara) (Entered: 07/27/2012)

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328 AFFIDAVIT Declaration of Walter Freeman by Plaintiff Service Employees International Union, Local 1199. (Chisholm, Barbara) (Entered: 07/27/2012)
Minute Entry for proceedings held before Judge Algenon L. Marbley: Motion Hearing held on 7/30/2012. This matter will be taken under advisement and the Court will issue an opinion w/n 2 to 3 weeks (Court Reporter S. Evans.) (bc1) (Entered: 08/01/2012)
329 Transcript of Oral Argument Proceedings held on 6/27/2012, before Judge Algenon L. Marbley. Court Reporter/Transcriber Shawna J. Evans, Telephone number 614−719−3316. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

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

08/14/2012

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 8/28/2012. Redacted Transcript Deadline set for 9/7/2012. Release of Transcript Restriction set for 11/5/2012. (er1) (Entered: 08/07/2012)
330 Transcript of Oral Argument Proceedings held on July 30, 2012 before Judge Algenon L Marbley. Court Reporter/Transcriber Shawna J Evans, Telephone number 614−719−3316. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

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

08/23/2012
08/27/2012 08/29/2012 08/31/2012 09/27/2012 10/12/2012

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 9/4/2012. Redacted Transcript Deadline set for 9/14/2012. Release of Transcript Restriction set for 11/13/2012. (kk2) (Entered: 08/14/2012)
331 MOTION for Extension of Time New date requested 11/6/2012. /Plaintiffs' Second Motion for Extension of Time Relating to Motions for Attorney Fees by Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless. (Attachments: # 1 Text of Proposed Order Proposed Order Granting Plaintiffs' Motion for Extension of Time) (Gentry, Caroline) (Entered: 08/23/2012)
332 ORDER deferring ruling on 288 Motion to Modify the Consent Decree. Signed by Judge Algenon L. Marbley on 8/27/2012. (cw) (Entered: 08/27/2012)
333 ORDER granting Motions for Extension of Time to file Motions for Attorneys' Fees (docs. 299 , 303 and 331 ). Signed by Magistrate Judge Terence P Kemp on 8/29/2012. (pes1) (Entered: 08/29/2012)
334 ORDER and JUDGMENT of USCA as to 236 Notice of Appeal, 237 Notice of Cross Appeal, 238 Notice of Appeal. We affirm the judgment of the district court. (jcw1) (Entered: 08/31/2012)
335 MANDATE of USCA as to 236 Notice of Appeal, 237 Notice of Cross Appeal and 238 Notice of Appeal: We affirm the judgment of the district court. No costs taxed. (er1) (Entered: 09/27/2012)
336 ORDER of USCA as to 319 Notice of Appeal filed by Jon Husted, State Of Ohio. It is ORDERED that the wrong−precinct remedy is AFFIRMED and the deficient−affirmation remedy is REVERSED in 12−4069. IT IS FURTHER ORDERED that the district court's judgment in 12−3916 is AFFIRMED, and the case is REMANDED to the district court for further, expeditious proceedings consistent

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11/01/2012

with the opinion of this court. (sr) (Entered: 10/12/2012)
337 NOTICE by Intervenor Plaintiff Ohio Democratic Party, Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless SEIU LOCAL 1 PLAINTIFFS AND NEOCH PLAINTIFFS REQUEST FOR STATUS CONFERENCE ON MONDAY, OCTOBER 15, 2012 (Leonard, Danielle) (Entered: 10/12/2012)
338 MOTION to Modify April 19, 2010 Consent Decree to Prevent Constitutional Violations; Memorandum of Law in Support Thereof by Intervenor Plaintiff Ohio Democratic Party, Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless. (Attachments: # 1 Text of Proposed Order) (Leonard, Danielle) (Entered: 10/17/2012)
339 ORDER. Memorandum in opposition to Plaintiff's Renewed Motion for Preliminary Injunction (Dkt. 84 filed in 2:12−cv−562) due by 10/24/2012. If Plaintiffs intend to a file a motion requesting modification of the consent decree which governs the counting of SSN−4 ballots, said motion due by 10/19/2012; responses due by 10/24/2012. Oral argument set for 10/29/2012 at 10:00 a.m. re: all motions filed by 10/19/2012 in Case No. 2:12−cv−562 and Case No. 2:06−cv−896. Signed by Judge Algenon L. Marbley on 10/18/2012. (pes1) (Entered: 10/18/2012)
340 NOTICE of Appearance by Erin Butcher−Lyden for Defendant Jon Husted (Butcher−Lyden, Erin) (Entered: 10/18/2012)
341 ORDER FOR EXPEDITED BRIEFING. VACATING re 339 Order for Expedited Briefing. Memorandum in opposition or cross motions to Plaintiff's Renewed Motion for Preliminary Injunction (Dkt. 84 filed in 2:12−cv−562) due by 10/22/2012. Oral argument reset for 10/24/2012 at 10:00 a.m. in Courtroom 1 − Columbus before Judge Algenon L. Marbley in Case No. 2:12−cv−562 and Case No. 2:06−cv−896. Signed by Judge Algenon L. Marbley on 10/19/2012. (cw) (Entered: 10/19/2012)
342 MOTION Modify Consent Decree re 210 Consent Judgment by Defendant Jon Husted. (Epstein, Aaron) (Entered: 10/19/2012)
343 RESPONSE in Opposition re 342 MOTION Modify Consent Decree re 210 Consent Judgment filed by Intervenor Plaintiff Ohio Democratic Party, Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless. (Leonard, Danielle) (Entered: 10/22/2012)
Minute Entry for proceedings held before Judge Algenon L. Marbley: Motion Hearing held on 10/24/2012 re 338 MOTION to Modify April 19, 2010 Consent Decree to Prevent Constitutional Violations; Memorandum of Law in Support Thereof filed by Service Employees International Union, Local 1199, Ohio Democratic Party, The Northeast Ohio Coalition for the Homeless.The Court listened to argument from both sides, at this time the Court will render a decision w/n 24 to 48 hours (Court Reporter S. Evans.) (bc1) (Entered: 10/24/2012)
344 ORDER denying Plaintiffs' Motion to modify April 19, 2010 Consent Decree and granting Defendants' Motion to modify April 19, 2010 Consent Decree. 338 , 342 , 288 . Signed by Judge Algenon L. Marbley on 10/26/2012. (cw) (Entered: 10/26/2012)
345 ORDER GRANTING IN PART Defendants' Motion to Modify April 19, 2010 Consent Decree; re 342 MOTION Modify Consent Decree re 210 Consent Judgment filed by Jon Husted, 338 MOTION to Modify April 19, 2010 Consent Decree to Prevent Constitutional Violations; Memorandum of Law in Support Thereof filed by Service Employees International Union, Local 1199, Ohio Democratic Party, The Northeast Ohio Coalition for the Homeless, 344 Order on Motion for Miscellaneous Relief. Signed by Judge Algenon L. Marbley on 10/26/2012. (cw) (Entered: 10/26/2012)
346 MOTION to Clarify 344 Order on Motion for Miscellaneous Relief,, 345 Order,, by Plaintiffs Columbus Coalition for the Homeless, Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless, James Wise, Intervenor Plaintiff Ohio Democratic Party. (Attachments: # 1 Affidavit Declaration of Subodh Chandra, # 2 Exhibit Exhibit 1 to Chandra Declaration: Chandra Letter to opposing counsel regarding Consent Decree and deficiency in Secretary's

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11/02/2012 11/02/2012 11/05/2012 11/05/2012
11/06/2012 11/06/2012 11/08/2012 11/08/2012
11/09/2012

Provisional−Ballot−Affirmation Form 12−B and request that Directive ensure that voters will not be disenfranchised for Step 2, which demands information that Ohio law requires poll workers to record, not voters as the Secretary requires, # 3 Exhibit Exhibit 1 to Chandra Declaration: Secretary's Provisional−Ballot Affirmation Form 12−B, which requires voters to provide information that Ohio law requires poll workers to record, # 4 Text of Proposed Order Proposed Order on Motion to Clarify) (Chandra, Subodh) (Entered: 11/01/2012)
347 ORDER GRANTING EXPEDITED BRIEFING SCHEDULE re 346 MOTION to Clarify 344 Order on Motion for Miscellaneous Relief,, 345 Order,, filed by Service Employees International Union, Local 1199, Ohio Democratic Party, James Wise, Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless. Signed by Judge Algenon L. Marbley on 11/2/2012. (cw) (Entered: 11/02/2012)
348 NOTICE by Intervenor Plaintiff Ohio Democratic Party, Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless SEIU LOCAL 1 PLAINTIFFS AND NEOCH PLAINTIFFS JOINT NOTICE RE: SECRETARY OF STATE DIRECTIVE 2012−54 (Attachments: # 1 Exhibit A−Directive 2012−54) (Leonard, Danielle) (Entered: 11/02/2012)
349 MOTION to Clarify , MOTION NEOCH PLAINTIFFS EMERGENCY MOTION FOR CLARIFICATION AND FOR MODIFICATION OF CONSENT DECREE; SEIU LOCAL 1 PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION by Intervenor Plaintiff Ohio Democratic Party, Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless. (Attachments: # 1 Affidavit, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Text of Proposed Order) (Chisholm, Barbara) (Entered: 11/05/2012)
350 ORDER FOR EXPEDITED BRIEFING re 347 Order, 349 MOTION to Clarify MOTION NEOCH PLAINTIFFS EMERGENCY MOTION FOR CLARIFICATION AND FOR MODIFICATION OF CONSENT DECREE; SEIU LOCAL 1 PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION filed by Service Employees International Union, Local 1199, Ohio Democratic Party, The Northeast Ohio Coalition for the Homeless, 346 MOTION to Clarify 344 Order on Motion for Miscellaneous Relief,, 345 Order,, filed by Service Employees International Union, Local 1199, Ohio Democratic Party, James Wise, Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless. Signed by Judge Algenon L. Marbley on 11/5/2012. (cw) (Entered: 11/05/2012)
351 MANDATE of USCA as to 319 Notice of Appeal (kk2) (Entered: 11/06/2012)
352 RESPONSE in Opposition re 349 MOTION to Clarify MOTION NEOCH PLAINTIFFS EMERGENCY MOTION FOR CLARIFICATION AND FOR MODIFICATION OF CONSENT DECREE; SEIU LOCAL 1 PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION , 346 MOTION to Clarify 344 Order on Motion for Miscellaneous Relief,, 345 Order,, filed by Defendant Jon Husted, Intervenor State Of Ohio. (Attachments: # 1 Affidavit Declaration of Matthew Damschroder) (Epstein, Aaron) (Entered: 11/06/2012)
353 NOTICE of Appearance by Donald P Screen for Plaintiffs Columbus Coalition for the Homeless, Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless (Screen, Donald) (Entered: 11/08/2012)
354 REPLY to Response to Motion re 346 MOTION to Clarify 344 Order on Motion for Miscellaneous Relief,, 345 Order,, , 349 MOTION to Clarify MOTION NEOCH PLAINTIFFS EMERGENCY MOTION FOR CLARIFICATION AND FOR MODIFICATION OF CONSENT DECREE; SEIU LOCAL 1 PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION filed by Plaintiffs Columbus Coalition for the Homeless, Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless, Kyle Wangler, James Wise. (Attachments: # 1 Text of Proposed Order on motions for clarification and modification, # 2 Exhibit 1 11/7/12 Transcript, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit) (Chandra, Subodh) (Entered: 11/09/2012)
355 NOTICE by Plaintiffs Columbus Coalition for the Homeless, Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless, Kyle Wangler, James Wise, Intervenor Plaintiff Ohio Democratic Party re 354 Reply to

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11/09/2012
11/13/2012 11/13/2012 11/14/2012 11/14/2012 11/19/2012 11/20/2012 04/30/2013 06/10/2013
06/11/2013
06/13/2013 06/14/2013
06/14/2013

Response to Motion,,, Notice of Exhibits to Dkt. 354 (Chandra, Subodh) (Entered: 11/09/2012)
356 NOTICE by Plaintiffs Columbus Coalition for the Homeless, Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless, Kyle Wangler, James Wise, Intervenor Plaintiff Ohio Democratic Party re 355 Notice (Other), 354 Reply to Response to Motion,,, Notice of Amended Exhibit 1 to Dkt. 354 (11/7/12 Transcript with PageID numbers) (Attachments: # 1 Exhibit 1 (Amended) 11/7/12 Transcript (with PageID numbers)) (Chandra, Subodh) (Entered: 11/09/2012)
357 OPINION AND ORDER granting 346 Motion to Clarify; granting 349 Motion to Clarify; granting 349 Motion to Modify Consent Decree. Signed by Judge Algenon L. Marbley on 11/13/2012. (cw) (cw). (Entered: 11/13/2012)
358 NOTICE OF APPEAL as to 357 Order on Motion to Clarify,, Order on Motion for Miscellaneous Relief by Defendant Jon Husted. Filing fee $ 455. Appeal Record due by 11/13/2012. (Epstein, Aaron) (Entered: 11/13/2012)
USCA Case Number 12−4354 for 358 Notice of Appeal filed by Jon Husted. Case Manager − Laura A. Jones. (jcw1) (Entered: 11/14/2012)
USCA Appeal Fees received re 358 Notice of Appeal filed by Jon Husted: $ 455.00, receipt number COL024846 (kk2) (Entered: 11/14/2012)
359 ORDER of USCA as to 358 Notice of Appeal filed by Jon Husted: The motion of Ohio and the Secretary to stay the district court's order pending appeal is granted. (kk2) (Entered: 11/19/2012)
360 MOTION for Extension of Time New date requested 1/4/2013. /Plaintiffs' Third Motion for Extension of Time Relating to Motions for Attorney Fees by Plaintiffs Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless. (Gentry, Caroline) (Entered: 11/20/2012)
361 NOTICE of Appearance by Sandhya Gupta for Plaintiffs Columbus Coalition for the Homeless, Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless, Kyle Wangler (Gupta, Sandhya) (Entered: 04/30/2013)
362 MOTION to Extend and Modify Consent Decree (doc. #210) re 210 Consent Judgment by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Attachments: # 1 Exhibit Ex. 1 − 2013−06−10 Brian Davis Declaration, # 2 Exhibit Ex. 2 − Cost of birth certificate − City of Cleveland − Department of Public Health, # 3 Exhibit Ex. 3 − 2010−04−27 Directive 2010−48, # 4 Exhibit Ex. 4 − 2010−11−01 Directive 2010−73) (Chandra, Subodh) (Entered: 06/10/2013)
363 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party re 362 MOTION to Extend and Modify Consent Decree (doc. #210) re 210 Consent Judgment , 210 Consent Judgment Notice of Filing Exhibits 5−A and 5−B to Motion to Extend and Modify Consent Decree (Attachments: # 1 Exhibit 5−A: Part 1 of O'Farrell v. Landis deposition transcripts, # 2 Exhibit 5−B: Part 2 of O'Farrell v. Landis deposition transcripts) (Gupta, Sandhya) (Entered: 06/11/2013)
364 ORDER setting Telephonic Status Conference for 6/14/2013 at 04:00 PM before Judge Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 6/12/2013. (pes1) (Entered: 06/13/2013)
365 NOTICE of Substitution of Attorney Richard N. Coglianese (0066830) and Bridget E. Coontz (0072819) replacing Aaron D. Epstein (0063286), Craig Calcaterra (0070177), Peggy Corn (0042197), Amanda Scheeser (0074259) and Joseph Rosenthal (0018117) by Defendant Jon Husted, Intervenor State Of Ohio. (Coglianese, Richard) Modified on 6/14/2013 to terminate motion and amend docket text. (pes1). (Entered: 06/14/2013)
366 MOTION for Leave to Appear Pro Hac Vice of Ryan L. Richardson (Filing fee $ 200, receipt number waived) by Defendant Jon Husted, Intervenor State Of Ohio. (Attachments: # 1 Exhibit A NY Certificate of Good Standing) (Coglianese, Richard) (Entered: 06/14/2013)

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06/14/2013 06/14/2013 06/18/2013 06/18/2013 06/19/2013 06/24/2013 06/25/2013 06/28/2013
07/03/2013
07/05/2013 07/09/2013 07/09/2013 07/11/2013
07/11/2013

367 ORDER TO SHOW CAUSE. Show Cause Hearing set for 6/21/2013 at 02:30 PM in Courtroom 1 − Columbus before Judge Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 6/14/2013. (Attachments: # 1 Dispute Resolution) (pes1) (Entered: 06/14/2013)
Notice of Correction re: 367 Order to Show Cause − document deleted by the Clerk's Office as it was filed in the wrong case. (pes1) (Entered: 06/14/2013)
368 ORDER Setting Hearing on Motion 362 MOTION to Extend and Modify Consent Decree (doc. #210) re 210 Consent Judgment : Motion Hearing set for 7/12/2013 02:00 PM in Courtroom 1 − Columbus before Judge Algenon L. Marbley.. Signed by Judge Algenon L. Marbley on 6/18/2013. (cw) (Entered: 06/18/2013)
369 ORDER re 366 MOTION for Leave to Appear Pro Hac Vice of Ryan L. Richardson: A current certificate of good standing shall be filed within seven days. Signed by Magistrate Judge Terence P Kemp on 6/18/2013. (er1) (Entered: 06/18/2013)
370 NOTICE of Appearance by Richard Nicholas Coglianese for Defendant Jon Husted, Intervenor State Of Ohio (Coglianese, Richard) (Entered: 06/19/2013)
371 RESPONSE in Opposition re 362 MOTION to Extend and Modify Consent Decree (doc. #210) re 210 Consent Judgment filed by Defendants Jon Husted, Jennifer Brunner. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Coglianese, Richard) (Entered: 06/24/2013)
372 NOTICE by Defendant Jon Husted, Intervenor State Of Ohio re 369 Order Notice of Filing of Certificate of Good Standing in Support of Motion for Admission Pro Hac Vice (Attachments: # 1 Exhibit Certificate of Good Standing) (Coglianese, Richard) (Entered: 06/25/2013)
373 REPLY to Response to Motion re 362 MOTION to Extend and Modify Consent Decree (doc. #210) re 210 Consent Judgment filed by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Attachments: # 1 Exhibit Ex. 1 − Jennifer Brunner's Declaration, # 2 Exhibit Ex. 2 − Media Coverage, # 3 Exhibit Ex. 3 − McTigue Declaration, # 4 Exhibit Ex. 4 − HB 260 Legislative analysis) (Chandra, Subodh) (Entered: 06/28/2013)
374 ORDER Setting Hearing on Motion 362 MOTION to Extend and Modify Consent Decree (doc. #210) re 210 Consent Judgment : Motion Hearing set for 7/12/2013 02:00 PM in Courtroom 1 − Columbus before Judge Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 07/03/2013. (cw) Modified on 7/5/2013 to correct hearing date. (pes1). (Entered: 07/03/2013)
Set/Reset Deadlines as to 362 MOTION to Extend and Modify Consent Decree (doc. #210) re 210 Consent Judgment . Motion Hearing set for 7/12/2013 02:00 PM in Courtroom 1 − Columbus before Judge Algenon L. Marbley. (pes1) (Entered: 07/05/2013)
375 ORDER granting 366 Motion for Leave to Appear Pro Hac Vice of Ryan L Richardson. Signed by Magistrate Judge Terence P Kemp on 7/9/2013. (kk2) (Entered: 07/09/2013)
376 ORDER re 374 Order Setting Hearing on Motion. This Order does not affect the oral argument set in the NEOCH case, which will go forward as planned. (NEOCH Doc. 368, 374). Signed by Judge Algenon L. Marbley on 7/9/2013. (pes1) (Entered: 07/09/2013)
377 ORDER rescheduling Hearing on Motion 362 MOTION to Extend and Modify Consent Decree (doc. #210) re 210 Consent Judgment . Motion Hearing set for 7/12/2013 at 11:00 AM in Courtroom 1 − Columbus before Judge Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 7/11/2013. (pes1) (Entered: 07/11/2013)
378 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party re 362 MOTION to Extend and Modify Consent Decree (doc. #210) re 210 Consent Judgment , 373 Reply to Response to Motion,, (Attachments: # 1 Exhibit Ex. 1 − Brian

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07/19/2013 07/19/2013 07/19/2013 07/26/2013

Davis declaration, # 2 Exhibit Ex. A − Social Security's requirements for issuing SSN printouts, # 3 Exhibit Ex. B − Getting a Social Security Card of SSN Printout, # 4 Exhibit Ex. C − Documents You Need for a Social Security Card) (Chandra, Subodh) (Entered: 07/11/2013)
379 MOTION To Further Temporily Extend Consent Decree re 368 Order Setting Hearing on Motion, by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Chandra, Subodh) (Entered: 07/19/2013)
380 RESPONSE to Motion re 360 MOTION for Extension of Time New date requested 1/4/2013. /Plaintiffs' Third Motion for Extension of Time Relating to Motions for Attorney Fees filed by Defendant Jon Husted, Intervenor State Of Ohio. (Coglianese, Richard) (Entered: 07/19/2013)
381 ORDER granting 379 Motion to temporarily extend Consent Decree until Court issues final decision on [Doc. 362]. Signed by Judge Algenon L. Marbley on 7/19/2013. (cw) (Entered: 07/19/2013)
382 Transcript of Oral Argument Proceedings held on 7/12/2013, before Judge Algenon L. Marbley. Court Reporter/Transcriber Shawna J. Evans, Telephone number 614−719−3316. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

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

08/05/2013 09/03/2013 09/12/2013 09/19/2013 09/26/2013 10/21/2013

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 8/16/2013. Redacted Transcript Deadline set for 8/26/2013. Release of Transcript Restriction set for 10/24/2013. (er1) (Entered: 07/26/2013)
383 ORDER granting in part 362 Motion to Extend and Modify Consent Decree. The Consent Decree is extended to December 31, 2016. Signed by Judge Algenon L. Marbley on 8/5/2013. (cw) (Entered: 08/05/2013)
384 ORDER granting 360 Motion for Extension of Time. The Court ORDERS that all motions for attorney fees under Fed. R. Civ. P. 54 must be filed not later than forty−five (45) days after the Sixth Circuit decides Defendants appeal of this Courts Opinion and Order of November 13, 2012 (Doc. 357). Signed by Judge Algenon L. Marbley on 9/3/2013. (cw) (Entered: 09/03/2013)
385 Unopposed MOTION for Extension of Time New date requested 10/21/2013. to File Attorneys'−Fees Motion Related to Consent−Decree Extension (Doc. #383) by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Gupta, Sandhya) (Entered: 09/12/2013)
386 ORDER granting 385 Motion for Extension of Time. Signed by Judge Algenon L. Marbley on 9/19/2013. The Court ORDERS that all motions for attorney fees under Fed. R. Civ. P. 54 must be filed not later than thirty (30) days from this date that is, October 21, 213. (cw) (Entered: 09/19/2013)
387 AMENDED ORDER re 386 Order on Motion for Extension of Time. The Court AMENDS its Order to make clear that the deadline to file a Motion for Attorneys' Fees relating to the court's 08/05/2013 Order 383 is 10/21/2013. Signed by Judge Algenon L. Marbley on 9/26/2013. (cw) Modified text on 9/27/2013 (sr1). (Entered: 09/26/2013)
388 MOTION for Attorney Fees by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Attachments: # 1 Exhibit Ex. 1 Chandra Declaration, # 2 Exhibit Ex. 1A Chandra Law Experience Page, # 3 Exhibit Ex. 1B Chandra Law Pro Forma Invoice, #

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11/07/2013 11/26/2013 12/09/2013 12/10/2013 12/11/2013 12/12/2013 12/20/2013
12/20/2013

4 Exhibit Ex. 2 McTigue Declaration and Fees, # 5 Exhibit Ex. 3 Gentry Declaration, # 6 Exhibit Ex. 3A Gentry Fees, # 7 Exhibit Ex. 4 Forman Declaration, # 8 Exhibit Ex. 5 Vardaro Declaration, # 9 Exhibit Ex. 6 Second Declaration of Mills, # 10 Exhibit Ex. 7 First Declaration of Mills, # 11 Exhibit Ex. 8 Declaration of Aparesh Paul) (Chandra, Subodh) (Entered: 10/21/2013)
389 MOTION for Extension of Time to File Response/Reply as to 388 MOTION for Attorney Fees New date requested 11/26/2013. by Defendant Jon Husted, Intervenor State Of Ohio. (Coglianese, Richard) (Entered: 11/07/2013)
390 RESPONSE in Opposition re 388 MOTION for Attorney Fees and Costs Related to Obtaining an Extension of the Consent Decree filed by Defendant Jon Husted, Intervenor State Of Ohio. (Coglianese, Richard) (Entered: 11/26/2013)
391 Unopposed MOTION for Extension of Time to File Response/Reply as to 388 MOTION for Attorney Fees , 383 Order on Motion for Miscellaneous Relief New date requested 12/20/2013. by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Gupta, Sandhya) (Entered: 12/09/2013)
392 ORDER granting 391 Motion for Extension of Time to File Response/Reply Replies due by 12/20/2013.. Signed by Judge Algenon L. Marbley on December 10, 2013. (bc1) (Entered: 12/10/2013)
Reset Deadlines as to 388 MOTION for Attorney Fees . Replies due by 12/20/2013. (pes1) (Entered: 12/11/2013)
393 MOTION for Attorney Fees by Plaintiffs Columbus Coalition for the Homeless, Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless, Kyle Wangler, James Wise. (Attachments: # 1 Declaration of Stacey Leyton, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Declaration of Caroline H. Gentry, # 8 Exhibit A, # 9 Declaration of Catherine Harshman, # 10 Exhibit A, # 11 Declaration of Donald J. McTigue, # 12 Exhibit A, # 13 Declaration of Subodh Chandra, # 14 Exhibit A, # 15 Exhibit B, # 16 Declaration of Daniel R. Mordarski, # 17 Exhibit A, # 18 Exhibit B, # 19 Exhibit C) (Berzon, Stephen) (Entered: 12/12/2013)
394 REPLY to Response to Motion re 388 MOTION for Attorney Fees , 391 Unopposed MOTION for Extension of Time to File Response/Reply as to 388 MOTION for Attorney Fees , 383 Order on Motion for Miscellaneous Relief New date requested 12/20/2013. filed by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Attachments: # 1 Exhibit Ex. 1 2013−12−14 Supp. Decl. of Don McTigue, # 2 Exhibit Ex. 1A Don McTigue LEXIS List of case, # 3 Exhibit Ex. 1B Don McTigue cases before Ohio Supreme Court, # 4 Exhibit Ex. 2 Libertarian Party v. Brunner Motion for Atty. Fees (#40), # 5 Exhibit Ex. 3 Libertarian Party v. Brunner Decl. of Sinawski (#40−1), # 6 Exhibit Ex. 4 Libertarian Party v. Brunner Decl. of McTigue (#40−2), # 7 Exhibit Ex. 5 AutoAlliance Int'l Jan. 29, 2004 district−court attys' fees opinion, # 8 Exhibit Ex. 6 Lavin Appellants' Principal Brief, # 9 Exhibit Ex. 7 2013−12−17 Decl. of Stiffman, PhD., # 10 Exhibit Ex. 8 2013 OSBA survey report, # 11 Exhibit Ex. 9 2010 OSBA survey report, # 12 Exhibit Ex. 10 2013−12−16 Suppl. Decl. of Gentry, # 13 Exhibit Ex. 11 Declarations of Cleveland Practitioners, # 14 Exhibit Ex. 12 2013−12−09 Elizaga letter from Supreme Court of Ohio, # 15 Exhibit Ex. 13A Crain's Cleveland Largest Law Firms 2013, # 16 Exhibit Ex. 13B Columbus Business First Largest firms 2012, # 17 Exhibit Ex. 14 2013−12−17 Suppl. Chandra Decl., # 18 Exhibit Ex. 15 Citizens in Charge, Husted Brief Concerning Plf's Motion, # 19 Exhibit Ex. 16 Fitzgerald Plfs' Memorandum Supporting Attys' Fees, # 20 Exhibit Ex. 17 Fitzgerald Attys Eliasberg's and Richardson's Decl. and billing records, # 21 Exhibit Ex. 18 Fitzgerald Atty Sobel's Decl. and billing records, # 22 Exhibit Ex. 19 2013−12−19 Zaranko Decl., # 23 Exhibit Ex. 19A 2013−12−20 Fitzgerald Atty hours by firm, # 24 Exhibit Ex. 20 2013−12−19 Supp. Decl. of McTigue correcting total hours, # 25 Exhibit Ex. 21 2013−12−19 Gupta Decl. for Reply) (Chandra, Subodh) (Entered: 12/20/2013)
395 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party re 388 MOTION for Attorney Fees , 394 Reply to Response to Motion,,,,,,,, Notice of Errata:

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12/23/2013 01/06/2014 01/06/2014 01/14/2014
01/24/2014 01/27/2014
01/28/2014 01/31/2014 01/31/2014
02/04/2014 02/05/2014 02/07/2014 02/07/2014 02/10/2014 02/10/2014

Corrections to Attorneys'−Fees Motion and Reply Related to Motion to Extend Consent Decree (Gupta, Sandhya) (Entered: 12/20/2013)
396 Consent MOTION for Extension of Time to File Response/Reply as to 393 MOTION for Attorney Fees New date requested 1/27/2014. by Defendant Jon Husted, Intervenor State Of Ohio. (Coglianese, Richard) (Entered: 12/23/2013)
397 ORDER granting 396 Motion for Extension of Time to File Response/Reply. New date requested 1/27/2014. Signed by Judge Algenon L. Marbley on 1/6/2014. (cw) (Entered: 01/06/2014)
Set/Reset Deadlines as to 393 MOTION for Attorney Fees . Responses due by 1/27/2014 (pes1) (Entered: 01/06/2014)
398 MOTION to Vacate Notice of Settlement on Appeal: Joint Motion for Indicative Ruling to Effect Terms of Settlement by Defendant Jon Husted, Intervenor State Of Ohio. (Attachments: # 1 Text of Proposed Order) (Coglianese, Richard) (Entered: 01/14/2014)
399 Second MOTION for Extension of Time to File Response/Reply as to 393 MOTION for Attorney Fees New date requested 2/10/2014. by Defendant Jon Husted, Intervenor State Of Ohio. (Coglianese, Richard) (Entered: 01/24/2014)
400 ORDER granting 399 Motion for Extension of Time to File Response/Reply re 399 Second MOTION for Extension of Time to File Response/Reply as to 393 MOTION for Attorney Fees New date requested 2/10/2014. Responses due by 2/10/2014. Signed by Judge Algenon L. Marbley on 1/27/2014. (cw) (Entered: 01/27/2014)
Set/Reset Deadlines as to 393 MOTION for Attorney Fees . Responses due by 2/10/2014 (pes1) (Entered: 01/28/2014)
401 ORDER granting 398 Motion to Vacate. Signed by Judge Algenon L. Marbley on 1/31/2014. (cw) (Entered: 01/31/2014)
402 MOTION for Extension of Time New date requested 3/10/2014. PLAINTIFFS MOTION FOR EXTENSION OF TIME TO FILE REPLY IN SUPPORT OF MOTION FOR ATTORNEYS FEES FOR 2012 WORK IN DEFENSE OF CONSENT DECREE by Plaintiffs Columbus Coalition for the Homeless, Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless, Kyle Wangler, James Wise, Intervenor Plaintiff Ohio Democratic Party. (Attachments: # 1 Declaration of Stacey Leyton, # 2 Text of Proposed Order) (Berzon, Stephen) (Entered: 01/31/2014)
403 ORDER granting 402 Motion for Extension of Time. Plaintiffs shall file their reply brief no later than 3/10/2014. Signed by Judge Algenon L. Marbley on 2/4/2014. (cw) (Entered: 02/04/2014)
Reset Deadlines as to 393 MOTION for Attorney Fees . Replies due by 3/10/2014. (pes1) (Entered: 02/05/2014)
404 ORDER of USCA FOR LIMITED REMAND as to 358 Notice of Appeal filed by Jon Husted (pes1) (Entered: 02/07/2014)
405 ORDER VACATING The Court's 11/13/2012 Order 357 Order on Motion to Clarify, Order on Motion for Miscellaneous Relief. Signed by Judge Algenon L. Marbley on 2/7/2014. (cw) (Entered: 02/07/2014)
406 NOTICE of Appearance by Zachery Paul Keller for Intervenor State Of Ohio (Keller, Zachery) (Entered: 02/10/2014)
407 RESPONSE to Motion re 393 MOTION for Attorney Fees filed by Defendants Jon Husted, Jennifer Brunner, Intervenor State Of Ohio. (Attachments: # 1 Appendix Table of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23) (Coglianese, Richard) (Entered: 02/10/2014)

Case: 2:06-cv-896 As of: 05/19/2020 07:15 PM EDT 49 of 82

03/07/2014 03/10/2014 03/11/2014 03/11/2014 03/11/2014 03/11/2014 03/11/2014 03/11/2014 03/11/2014
03/11/2014
05/08/2014 05/15/2014

408 ORDER of USCA as to 358 Notice of Appeal filed by Jon Husted dismissing case pursuant to stipulation of the parties. (sct1) (Entered: 03/07/2014)
409 REPLY to Response to Motion re 393 MOTION for Attorney Fees filed by Plaintiffs Columbus Coalition for the Homeless, Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless, Kyle Wangler, James Wise. (Berzon, Stephen) (Entered: 03/11/2014)
410 AFFIDAVIT re 409 Reply to Response to Motion, Stacey Leyton by Plaintiffs Columbus Coalition for the Homeless, Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless, Kyle Wangler, James Wise, Intervenor Plaintiff Ohio Democratic Party. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (Berzon, Stephen) (Entered: 03/11/2014)
411 AFFIDAVIT re 409 Reply to Response to Motion, Danielle Leonard by Plaintiffs Columbus Coalition for the Homeless, Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless, Kyle Wangler, James Wise, Intervenor Plaintiff Ohio Democratic Party. (Berzon, Stephen) (Entered: 03/11/2014)
412 AFFIDAVIT re 409 Reply to Response to Motion, Cathrine Harshman by Plaintiffs Columbus Coalition for the Homeless, Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless, Kyle Wangler, James Wise, Intervenor Plaintiff Ohio Democratic Party. (Berzon, Stephen) (Entered: 03/11/2014)
413 AFFIDAVIT re 409 Reply to Response to Motion, Subodh Chandra by Plaintiffs Columbus Coalition for the Homeless, Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless, Kyle Wangler, James Wise, Intervenor Plaintiff Ohio Democratic Party. (Attachments: # 1 Exhibit A) (Berzon, Stephen) (Entered: 03/11/2014)
414 AFFIDAVIT re 409 Reply to Response to Motion, Donald McTigue by Plaintiffs Columbus Coalition for the Homeless, Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless, Kyle Wangler, James Wise, Intervenor Plaintiff Ohio Democratic Party. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (Berzon, Stephen) (Entered: 03/11/2014)
415 AFFIDAVIT re 409 Reply to Response to Motion, Daniel Mordarski by Plaintiffs Columbus Coalition for the Homeless, Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless, Kyle Wangler, James Wise, Intervenor Plaintiff Ohio Democratic Party. (Berzon, Stephen) (Entered: 03/11/2014)
416 REPLY to Response to Motion re 393 MOTION for Attorney Fees [PROPOSED] ORDER GRANTING PLAINTIFFS MOTION FOR ATTORNEYS FEES FOR 2012 WORK IN DEFENSE OF CONSENT DECREE filed by Plaintiffs Columbus Coalition for the Homeless, Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless, Kyle Wangler, James Wise. (Berzon, Stephen) (Entered: 03/11/2014)
417 NOTICE by Plaintiffs Columbus Coalition for the Homeless, Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless, Kyle Wangler, James Wise, Intervenor Plaintiff Ohio Democratic Party re 409 Reply to Response to Motion, ERRATA: CORRECTIONS TO JOINT REPLY MEMORANDUM OF PLAINTIFFS IN SUPPORT OF MOTIONS FOR ATTORNEYS FEES AND [PROPOSED] ORDER GRANTING PLAINTIFFS MOTION FOR ATTORNEYS FEES (Attachments: # 1 Errata Brief, # 2 Errata Proposed Order) (Berzon, Stephen) (Entered: 03/11/2014)
418 NOTICE by Defendant Jon Husted re 210 Consent Judgment − Changes in Ohio Statutory Law that Modify the Consent Decree − (Coontz, Bridget) (Entered: 05/08/2014)
419 MOTION for Hearing re 388 MOTION for Attorney Fees , 394 Reply to Response to Motion,,,,,,,, Motion for oral argument on motion for attorneys' fees and costs related to obtaining Consent−Decree extension, and request for telephone status conference to discuss potential oral−argument dates by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Chandra, Subodh) (Entered: 05/15/2014)

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06/04/2014 06/04/2014 07/23/2014 08/20/2014 09/05/2014
09/24/2014 09/29/2014
10/28/2014 10/29/2014 10/30/2014 10/30/2014 11/04/2014

420 NOTICE by Defendant Jon Husted re 418 Notice (Other) of Instructions and Forms Relating to Substitute Bill 216 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Coontz, Bridget) (Entered: 06/04/2014)
421 RESPONSE in Opposition re 419 MOTION for Hearing re 388 MOTION for Attorney Fees , 394 Reply to Response to Motion,,,,,,,, Motion for oral argument on motion for attorneys' fees and costs related to obtaining Consent−Decree extension, and request for tel filed by Defendant Jon Husted, Intervenor State Of Ohio. (Coontz, Bridget) (Entered: 06/04/2014)
422 NOTICE of Substitution of Counsel − Subodh Chandra substituting foras to Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless. (Chandra, Subodh) (Entered: 07/23/2014)
423 NOTICE by Plaintiffs Columbus Coalition for the Homeless, Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless of Withdrawal of Attorney Daniel B. Miller as Co−Counsel (Miller, Daniel) (Entered: 08/20/2014)
424 NOTICE by Plaintiffs Columbus Coalition for the Homeless, Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party re 409 Reply to Response to Motion, 388 MOTION for Attorney Fees , 393 MOTION for Attorney Fees , 394 Reply to Response to Motion,,,,,,,, of Supplemental Authority regarding Pending Motions for Attorneys' Fees and Costs (for Defending Consent Decree in 2012 and Obtaining Consent−Decree Extension in 2013) (Chandra, Subodh) (Entered: 09/05/2014)
425 NOTICE by Defendant Jon Husted re 420 Notice (Other), 418 Notice (Other), 210 Consent Judgment Notice of Amendment to Notice Required by Consent Decree (Attachments: # 1 Exhibit A Notice Issued Pursuant to Court Order, # 2 Exhibit B Notice Issued Pursuant to Court Order w/red lines) (Coontz, Bridget) (Entered: 09/24/2014)
426 ORDER granting with modification 388 Motion for Attorney Fees; granting 393 Motion for Attorney Fees; denying 419 Motion for Hearing. Plaintiffs are hereby ORDERED to submit to the Court, within 30 days of the date of this Order, a Bill of Costs, together with supporting documentation, reflecting the hours the Court has approved, including those omissions and reductions made voluntarily by Plaintiffs, as well as those ordered by the Court, billed at the hourly rates the Court set forth above, and including fees for fees for no more than 3% of the total merit hours in the two cases combined. Signed by Judge Algenon L. Marbley on 9/29/2014. (Entered: 09/29/2014)
427 NOTICE OF APPEAL as to 426 Order on Motion for Attorney Fees,, Order on Motion for Hearing,,,,,, by Defendant Jon Husted, Intervenor State Of Ohio. Filing fee $ 505, receipt number 0648−4790314. (Keller, Zachery) (Entered: 10/28/2014)
428 BILL OF COSTS by Plaintiffs Columbus Coalition for the Homeless, Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless, Kyle Wangler, Intervenor Plaintiff Ohio Democratic Party. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Berzon, Stephen) (Entered: 10/29/2014)
429 MOTION for Leave to File Second Supplemental Complaint, under Fed. R. Civ. P. 15(d) by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Attachments: # 1 Exhibit 1: Plaintiffs' Second Supplemental Complaint) (Chandra, Subodh) (Entered: 10/30/2014)
453 AMENDED COMPLAINT − Second Supplemental Complaint for Declaratory and Injunctive Relief against Jon Husted, State Of Ohio, filed by The Northeast Ohio Coalition for the Homeless, Ohio Democratic Party, Columbus Coalition for the Homeless. (Chandra, Subodh) Date filed modified pursuant to Judge Marbley's Order of 3/17/206, Doc. 642 (pes). (Entered: 08/10/2015)
USCA Case Number 14−4083 for 427 Notice of Appeal filed by Jon Husted, State Of Ohio. Case Manager − Laura A. Jones. (sct1) (Entered: 11/04/2014)

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11/07/2014 11/13/2014
11/24/2014 11/25/2014

430 NOTICE OF CROSS APPEAL as to 426 Order on Motions by Plaintiffs Columbus Coalition for the Homeless, Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. Filing fee $ 505, receipt number 0648−4804431. (Chandra, Subodh) Modified text on 11/7/2014 (er1). (Entered: 11/07/2014)
431 Supplemental MOTION for Attorney Fees for Preparing and Defending Attorneys' Fees Motion Related to Work Obtaining Consent−Decree Extension (Docs. 388, 394, 426) by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Attachments: # 1 Exhibit Ex. 1 − Chandra Declaration, # 2 Exhibit Ex. 2 − Zaranko Declaration, # 3 Exhibit Ex. 2A − Chandra Law Fees Spreadsheet, # 4 Exhibit Ex. 2B − 2014 paid invoice to fee−paying client, # 5 Exhibit Ex. 2C − 2014 paid invoice to fee−paying client, # 6 Exhibit Ex. 2D − 2014 paid invoice to fee−paying client, # 7 Exhibit Ex. 2E − 2014 Chandra Law Fee Agreement stating firm's standard rates, # 8 Exhibit Ex. 3 − McTigue Declaration, # 9 Exhibit Ex. 4 − 2012−11−30 email exchange between Chandra and Coglianese, # 10 Exhibit Ex. 5 − Appellees Brief in Lavin, # 11 Exhibit Ex. 6 − Glesius Declaration) (Gupta, Sandhya) (Entered: 11/13/2014)
432 RESPONSE in Opposition re 429 MOTION for Leave to File Second Supplemental Complaint, under Fed. R. Civ. P. 15(d) filed by Defendant Jon Husted, Intervenor State Of Ohio. (Coontz, Bridget) (Entered: 11/24/2014)
433 Transcript of Telephonic Conference Proceedings held on 5/16/2012, before Judge Algenon L. Marbley. Court Reporter/Transcriber Shawna J. Evans, Telephone number 614−719−3316. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

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

11/26/2014 11/26/2014 12/02/2014

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 12/16/2014. Redacted Transcript Deadline set for 12/26/2014. Release of Transcript Restriction set for 2/23/2015. (Evans, Shawna) (Entered: 11/25/2014)
434 Unopposed MOTION for Extension of Time to File Response/Reply as to 432 Response in Opposition to Motion, 429 MOTION for Leave to File Second Supplemental Complaint, under Fed. R. Civ. P. 15(d) New date requested 12/18/2014. by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Gupta, Sandhya) (Entered: 11/26/2014)
USCA Case Number 14−4132 for 430 Notice of Appeal, filed by Service Employees International Union, Local 1199, Ohio Democratic Party, Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless (Case Manager: Laura Jones). (sem1) (Entered: 11/26/2014)
435 Transcript of Oral Argument Proceedings held on 10/24/2012, before Judge Marbley. Court Reporter/Transcriber Shawna J. Evans, Telephone number 614−719−3316. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

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

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. (pes1) (Entered: 12/02/2014)

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12/02/2014

436 Transcript of Motion for Preliminary Injuction Proceedings held on 11/7/2012, before Judge Marbley. Court Reporter/Transcriber Shawna J. Evans, Telephone number 614−719−3316. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

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

12/05/2014 12/08/2014 12/18/2014 12/19/2014
12/22/2014
12/23/2014 01/06/2015
02/05/2015 02/17/2015

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. (pes1) (Entered: 12/02/2014)
437 ORDER granting 434 Motion for Extension of Time to File Response/Reply re 429 MOTION for Leave to File Second Supplemental Complaint, under Fed. R. Civ. P. 15(d). Replies due by 12/18/2014. Signed by Magistrate Judge Terence P Kemp on 12/5/2014. (agm1) (Entered: 12/05/2014)
438 RESPONSE to Motion re 431 Supplemental MOTION for Attorney Fees for Preparing and Defending Attorneys' Fees Motion Related to Work Obtaining Consent−Decree Extension (Docs. 388, 394, 426) filed by Defendant Jon Husted, Intervenor State Of Ohio. (Coontz, Bridget) (Entered: 12/08/2014)
439 REPLY to Response to Motion re 429 MOTION for Leave to File Second Supplemental Complaint, under Fed. R. Civ. P. 15(d) filed by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Chandra, Subodh) (Entered: 12/18/2014)
440 Unopposed MOTION for Extension of Time to File Response/Reply as to 431 Supplemental MOTION for Attorney Fees for Preparing and Defending Attorneys' Fees Motion Related to Work Obtaining Consent−Decree Extension (Docs. 388, 394, 426), 438 Response to Motion, New date requested 1/6/2015. by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Gupta, Sandhya) (Entered: 12/19/2014)
441 ORDER granting 440 Motion for Extension of Time to File Response/Reply re 440 Unopposed MOTION for Extension of Time to File Response/Reply as to 431 Supplemental MOTION for Attorney Fees for Preparing and Defending Attorneys' Fees Motion Related to Work Obtaining Consent−Decree Extension (Docs. 388, 394, 426), Replies due by 1/6/2015. Signed by Judge Algenon L. Marbley on 12/22/2014. (cw) (Entered: 12/22/2014)
Set/Reset Deadlines as to 431 Supplemental MOTION for Attorney Fees. Replies due by 1/6/2015. (pes1) (Entered: 12/23/2014)
442 REPLY to Response to Motion re 431 Supplemental MOTION for Attorney Fees for Preparing and Defending Attorneys' Fees Motion Related to Work Obtaining Consent−Decree Extension (Docs. 388, 394, 426) filed by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Attachments: # 1 Exhibit 1: Chandra Decl. for Fees−for−fees Reply, # 2 Exhibit 1A: Chandra Law Fees−for−fees Supplemental Spreadsheet (fees since Nov. 13, 2014), # 3 Exhibit 2: McTigue Decl. for Fees−for−fees Reply) (Gupta, Sandhya) (Entered: 01/06/2015)
443 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party re 442 Reply to Response to Motion,, of Clarification for the fees−for−fees Reply (Gupta, Sandhya) (Entered: 02/05/2015)
444 ORDER − re 428 Bill of Costs, filed by Service Employees International Union, Local 1199, Ohio Democratic Party, Columbus Coalition for the Homeless, Kyle Wangler, The Northeast Ohio Coalition for the Homeless. Signed by Judge Algenon L. Marbley on 2/17/2015. (cw) (Entered: 02/17/2015)

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03/19/2015 03/23/2015 03/31/2015 04/10/2015 04/30/2015 06/10/2015
06/10/2015 06/12/2015 06/17/2015 08/07/2015 08/31/2015 09/04/2015
09/09/2015 09/14/2015 09/16/2015 09/16/2015

445 NOTICE OF APPEAL as to 444 Order, by Defendant Jon Husted, Intervenor State Of Ohio. Filing fee $ 505, receipt number 0648−4976402. (Keller, Zachery) (Entered: 03/19/2015)
USCA Case Number 15−3295 for 445 Notice of Appeal filed by Jon Husted, State Of Ohio (Case Manager: Laura Jones). (sem1) (Entered: 03/23/2015)
446 NOTICE OF CROSS APPEAL as to 444 Order, by Plaintiffs Columbus Coalition for the Homeless, Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. Filing fee $ 505, receipt number 0648−4994564. (Berzon, Stephen) (Entered: 03/31/2015)
USCA Case Number 15−3380 for 446 Notice of Cross Appeal, filed by Service Employees International Union, Local 1199, Ohio Democratic Party, Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless. Case Manager − Laura A. Jones. (sct1) (Entered: 04/10/2015)
447 MOTION Telephone Status Conference re 429 MOTION for Leave to File Second Supplemental Complaint, under Fed. R. Civ. P. 15(d) by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Chandra, Subodh) (Entered: 04/30/2015)
448 ORDER SETTING TELEPHONIC STATUS CONFERENCE: GRANTING re 447 Motion for Miscellaneous Relief, filed by Ohio Democratic Party, Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless Telephonic Status Conference set for 6/17/2015 02:30 PM before Judge Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 6/10/2015. (cw) (Entered: 06/10/2015)
449 NOTICE by Defendant Jon Husted of Withdrawal of Attorney (Butcher, Erin) (Entered: 06/10/2015)
450 ORDER RESETTING TIME FOR TELEPHONIC STATUS CONFERENCE: Status Conference set for 6/17/2015 AT 10:00 AM before Judge Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 6/12/2015. (cw) (Entered: 06/12/2015)
451 NOTICE of Appearance by Ana Crawford for Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless (Crawford, Ana) (Entered: 06/17/2015)
452 ORDER granting 429 Motion for Leave to File. Signed by Judge Algenon L. Marbley on August 7, 2015. (bc) (Entered: 08/07/2015)
454 ANSWER to 453 Amended Complaint, filed by Jon Husted, State Of Ohio. (Coontz, Bridget) (Entered: 08/31/2015)
455 ORDER deferring ruling on 431 Motion for Attorney Fees. Plaintiffs are directed to renew their request for a ruling on Plaintiffs Supplemental Fees Motion for Preparing and Defending Attorneys Fees Motion Related to Work Obtaining Consent Decree Extension, (Doc. 431), after the parties appeals from the September 29, 2014 Opinion and Order and February 17, 2015 Opinion and Order are ruled upon by the Sixth Circuit. Signed by Judge Algenon L. Marbley on 9/4/2015. (cw) (Entered: 09/04/2015)
456 MOTION for Hearing re 453 Amended Complaint, Telephone Status Conference Requested by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. Responses due by 10/5/2015 (Chandra, Subodh) (Entered: 09/09/2015)
457 RESPONSE to Motion re 456 MOTION for Hearing re 453 Amended Complaint, Telephone Status Conference Requested filed by Defendant Jon Husted, Intervenor State Of Ohio. (Richardson, Ryan) (Entered: 09/14/2015)
458 ORDER granting 456 Motion for Hearing. Telephonic Status Conference scheduled for today, 9/16/2016 at 4:30 p.m. before the Honorable Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 9/16/2015. (cw) (Entered: 09/16/2015)
459 ORDER SETTING TELEPHONIC Status Conference for 9/22/2015 02:00 PM before Judge Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 9/16/2015. (cw) (Entered: 09/16/2015)

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09/25/2015
11/12/2015
11/17/2015 11/17/2015 11/17/2015 11/17/2015 11/17/2015 11/17/2015 11/17/2015 11/17/2015 11/17/2015 11/17/2015 11/17/2015

460 ORDER SETTING DISCOVERY DEADLINES, DISPOSITIVE MOTION DEADLINES, BENCH TRIAL AND PRETRIAL CONFERENCE DATES: Bench Trial set for 3/16/2016 09:00 AM in Courtroom 1 − Columbus before Judge Algenon L. Marbley, Motion Hearing on Summary Judgment set for 3/1/2016 10:00 AM in Courtroom 1 − Columbus before Judge Algenon L. Marbley, Final Pretrial Conference set for 3/10/2016 02:00 PM in Chambers before Judge Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 9/25/2015. (Attachments: # 1 Exhibit A) (cw) (Entered: 09/25/2015)
461 MOTION To correct the record Nunc Pro Tunc re 453 Amended Complaint, 452 Order on Motion for Leave to File, 429 MOTION for Leave to File Second Supplemental Complaint, under Fed. R. Civ. P. 15(d) by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. Responses due by 12/7/2015 (Chandra, Subodh) (Entered: 11/12/2015)
462 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Subpoena Duces Tecum Upon Allen County Board of Elections (Attachments: # 1 Supplement Subpoena to Allen County Bd of Elections) (Gentry, Caroline) (Entered: 11/17/2015)
463 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Subpoena Duces Tecum Upon Clinton County Board of Elections (Attachments: # 1 Supplement Subpoena to Clinton County Bd of Elections) (Gentry, Caroline) (Entered: 11/17/2015)
464 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Subpoena Duces Tecum Upon Cuyahoga County Board of Elections (Attachments: # 1 Supplement Subpoena to Cuyahoga County Bd of Elections) (Gentry, Caroline) (Entered: 11/17/2015)
465 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Subpoena Duces Tecum Upon Franklin County Board of Elections (Attachments: # 1 Supplement Subpoena to Franklin County Bd of Elections) (Gentry, Caroline) (Entered: 11/17/2015)
466 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Subpoena Duces Tecum Upon Hamilton County Board of Elections (Attachments: # 1 Supplement Subpoena to Hamilton County Bd of Elections) (Gentry, Caroline) (Entered: 11/17/2015)
467 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Subpoena Duces Tecum Upon Jackson County Board of Elections (Attachments: # 1 Supplement Subpoena to Jackson County Bd of Elections) (Gentry, Caroline) (Entered: 11/17/2015)
468 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Subpoena Duces Tecum Upon Lawrence County Board of Elections (Attachments: # 1 Supplement Subpoena to Lawrence County Bd of Elections) (Gentry, Caroline) (Entered: 11/17/2015)
469 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Subpoena Duces Tecum Upon Lorain County Board of Elections (Attachments: # 1 Supplement Subpoena to Lorain County Bd of Elections) (Gentry, Caroline) (Entered: 11/17/2015)
470 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Subpoena Upon Lucas County Board of Elections (Attachments: # 1 Supplement Subpoena to Lucas County Bd of Elections) (Gentry, Caroline) (Entered: 11/17/2015)
471 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Subpoena Duces Tecum Upon Mahoning County Board of Elections (Attachments: # 1 Supplement Subpoena to Mahoning County Bd of Elections) (Gentry, Caroline) (Entered: 11/17/2015)
472 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Subpoena Duces Tecum Upon Meigs

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11/17/2015 11/17/2015 11/17/2015 11/17/2015 11/17/2015 11/17/2015 11/17/2015 11/17/2015 11/30/2015 12/04/2015
12/07/2015 12/08/2015 12/09/2015

County Board of Elections (Attachments: # 1 Supplement Subpoena to Meigs County Bd of Elections) (Gentry, Caroline) (Entered: 11/17/2015)
473 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Subpoena Upon Miami County Board of Elections (Attachments: # 1 Supplement Subpoena to Miami County Bd of Elections) (Gentry, Caroline) (Entered: 11/17/2015)
474 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Subpoena Duces Tecum Upon Montgomery County Board of Elections (Attachments: # 1 Supplement Subpoena to Montgomery County Bd of Elections) (Gentry, Caroline) (Entered: 11/17/2015)
475 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Subpoena Duces Tecum Upon Morgan County Board of Elections (Attachments: # 1 Supplement Subpoena to Morgan County Bd of Elections) (Gentry, Caroline) (Entered: 11/17/2015)
476 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Subpoena Upon Perry County Board of Elections (Attachments: # 1 Supplement Subpoena to Perry County Bd of Elections) (Gentry, Caroline) (Entered: 11/17/2015)
477 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Subpoena Duces Tecum Upon Putnam County Board of Elections (Attachments: # 1 Supplement Subpoena to Putnam County Bd of Elections) (Gentry, Caroline) (Entered: 11/17/2015)
478 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Subpoena Duces Tecum Upon Richland County Board of Elections (Attachments: # 1 Supplement Subpoena to Richland County Bd of Elections) (Gentry, Caroline) (Entered: 11/17/2015)
479 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Subpoena Duces Tecum Upon Summit County Board of Elections (Attachments: # 1 Supplement Subpoena to Summit County Bd of Elections) (Gentry, Caroline) (Entered: 11/17/2015)
480 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Subpoena Duces Tecum Upon Vinton County Board of Elections (Attachments: # 1 Supplement Subpoena to Vinton County Bd of Elections) (Gentry, Caroline) (Entered: 11/17/2015)
481 MOTION to Quash Subpoena by Respondent Lucas County Board of Elections. Responses due by 12/4/2015 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (Atkins, Maureen) (Entered: 11/30/2015)
482 MOTION for Extension of Time to File Response/Reply as to 481 MOTION to Quash Subpoena New date requested 12/11/2015. /Plaintiffs' Motion for Extension of Time to Oppose Lucas County Board of Elections' Motion to Quash Subpoena by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless. Responses due by 12/31/2015 (Attachments: # 1 Text of Proposed Order) (Crawford, Ana) (Entered: 12/04/2015)
483 RESPONSE to Motion re 461 MOTION To correct the record Nunc Pro Tunc re 453 Amended Complaint, 452 Order on Motion for Leave to File, 429 MOTION for Leave to File Second Supplemental Complaint, under Fed. R. Civ. P. 15(d) filed by Defendant Jon Husted, Intervenor State Of Ohio. (Keller, Zachery) (Entered: 12/07/2015)
484 ORDER granting 482 Motion for Extension of Time to File Response/Reply re 481 MOTION to Quash Subpoena. Responses due by 12/11/2015. Signed by Magistrate Judge Terence P. Kemp on 12/8/2015. (agm) (Entered: 12/08/2015)
485 MOTION to Withdraw 481 MOTION to Quash Subpoena by Respondent Lucas County Board of Elections. (Atkins, Maureen) (Entered: 12/09/2015)

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12/24/2015
01/05/2016 01/05/2016 01/05/2016 01/05/2016 01/05/2016 01/05/2016 01/05/2016 01/05/2016 01/05/2016 01/05/2016 01/05/2016 01/05/2016

486 REPLY to Response to Motion re 461 MOTION To correct the record Nunc Pro Tunc re 453 Amended Complaint, 452 Order on Motion for Leave to File, 429 MOTION for Leave to File Second Supplemental Complaint, under Fed. R. Civ. P. 15(d) filed by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Chandra, Subodh) (Entered: 12/24/2015)
487 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Deposition Subpoena Upon Allen County Board of Elections (Attachments: # 1 Supplement Deposition subpoena) (Gentry, Caroline) (Entered: 01/05/2016)
488 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Deposition Subpoena Upon Butler County Board of Elections (Attachments: # 1 Supplement Deposition subpoena) (Gentry, Caroline) (Entered: 01/05/2016)
489 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Subpoena Duces Tecum Upon Butler County Board of Elections (Attachments: # 1 Supplement Subpoena duces tecum) (Gentry, Caroline) (Entered: 01/05/2016)
490 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Deposition Subpoena Upon Cuyahoga County Board of Elections (Attachments: # 1 Supplement Deposition subpoena) (Gentry, Caroline) (Entered: 01/05/2016)
491 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Deposition Subpoena Upon Delaware County Board of Elections (Attachments: # 1 Supplement Deposition subpoena) (Gentry, Caroline) (Entered: 01/05/2016)
492 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Subpoena Duces Tecum Upon Delaware County Board of Elections (Attachments: # 1 Supplement Subpoena duces tecum) (Gentry, Caroline) (Entered: 01/05/2016)
493 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Deposition Subpoena Upon Fairfield County Board of Elections (Attachments: # 1 Supplement Deposition subpoena) (Gentry, Caroline) (Entered: 01/05/2016)
494 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Servcie of Subpoena Duces Tecum Upon Fairfield County Board of Elections (Attachments: # 1 Supplement Subpoena duces tecum) (Gentry, Caroline) (Entered: 01/05/2016)
495 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Deposition Subpoena Upon Franklin County Board of Elections (Attachments: # 1 Supplement Deposition subpoena) (Gentry, Caroline) (Entered: 01/05/2016)
496 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Deposition Subpoena Upon Hamilton County Board of Elections (Attachments: # 1 Supplement Deposition subpoena) (Gentry, Caroline) (Entered: 01/05/2016)
497 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Deposition Subpoena Upon Lawrence County Board of Elections (Attachments: # 1 Supplement Deposition subpoena) (Gentry, Caroline) (Entered: 01/05/2016)
498 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Deposition Subpoena Upon Lorain County Board of Elections (Attachments: # 1 Supplement Deposition subpoena) (Gentry, Caroline) (Entered: 01/05/2016)

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01/05/2016 01/05/2016 01/05/2016 01/05/2016 01/05/2016 01/05/2016 01/05/2016 01/05/2016 01/05/2016 01/11/2016 01/11/2016 01/12/2016 01/12/2016 01/12/2016 01/14/2016 01/19/2016

499 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Deposition Subpoena Upon Lucas County Board of Elections (Attachments: # 1 Supplement Deposition subpoena) (Gentry, Caroline) (Entered: 01/05/2016)
500 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Deposition Subpoena Upon Miami County Board of Elections (Attachments: # 1 Supplement Deposition subpoena) (Gentry, Caroline) (Entered: 01/05/2016)
501 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Deposition Subpoena Upon Montgomery County Board of Elections (Attachments: # 1 Supplement Deposition subpoena) (Gentry, Caroline) (Entered: 01/05/2016)
502 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Deposition Subpoena Upon Richland County Board of Elections (Attachments: # 1 Supplement Deposition subpoena) (Gentry, Caroline) (Entered: 01/05/2016)
503 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Deposition Subpoena Upon Stark County Board of Elections (Attachments: # 1 Supplement Deposition subpoena) (Gentry, Caroline) (Entered: 01/05/2016)
504 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Subpoena Duces Tecum Upon Stark County Board of Elections (Attachments: # 1 Supplement Subpoena duces tecum) (Gentry, Caroline) (Entered: 01/05/2016)
505 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Deposition Subpoena Upon Summit County Board of Elections (Attachments: # 1 Supplement Deposition subpoena) (Gentry, Caroline) (Entered: 01/05/2016)
506 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Deposition Subpoena Upoon Warren County Board of Elections (Attachments: # 1 Supplement Deposition subpoena) (Gentry, Caroline) (Entered: 01/05/2016)
507 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Subpoena Duces Tecum Upon Warren County Board of Elections (Attachments: # 1 Supplement Duces tecum subpoena) (Gentry, Caroline) (Entered: 01/05/2016)
508 NOTICE by Defendant Jon Husted, Intervenor State Of Ohio of Withdrawal and Substitution of Lead and Trial Counsel (Coontz, Bridget) (Entered: 01/11/2016)
509 NOTICE of Appearance by Sarah Elaine Pierce for Defendant Jon Husted, Intervenor State Of Ohio (Pierce, Sarah) (Entered: 01/11/2016)
510 NOTICE of Appearance by Tiffany L. Carwile for Defendant Jon Husted, Intervenor State Of Ohio (Carwile, Tiffany) (Entered: 01/12/2016)
511 NOTICE of Appearance by Brodi J. Conover for Defendant Jon Husted, Intervenor State Of Ohio (Conover, Brodi) (Entered: 01/12/2016)
512 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Amended Deposition Subpoena Upon Lawrence County Board of Elections (Attachments: # 1 Supplement Amended Deposition Subpoena) (Gentry, Caroline) (Entered: 01/12/2016)
513 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Amended Deposition Subpoena Upon Miami County Board of Elections (Attachments: # 1 Supplement Amended Deposition Subpoena) (Gentry, Caroline) (Entered: 01/14/2016)
514 NOTICE of Appearance by Steven T Voigt for Defendant Jon Husted, Intervenor State Of Ohio (Voigt, Steven) (Entered: 01/19/2016)

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01/22/2016 01/25/2016
01/26/2016
01/27/2016 01/28/2016 01/29/2016 02/01/2016 02/01/2016 02/03/2016 02/03/2016 02/03/2016
02/04/2016 02/04/2016 02/04/2016 02/08/2016 02/09/2016

515 MOTION to Quash by Respondent Miami County Board Of Elections. (Englert, Christopher) (Entered: 01/22/2016)
516 MOTION for Extension of Time New date requested 4/15/2016. for Fact−Discovery, Dispositive−Motion, and Trial Deadlines, and Request for a Telephone Status Conference to Discuss a New Schedule by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. Responses due by 2/19/2016 (Chandra, Subodh) (Entered: 01/25/2016)
517 RESPONSE in Opposition re 516 MOTION for Extension of Time New date requested 4/15/2016. for Fact−Discovery, Dispositive−Motion, and Trial Deadlines, and Request for a Telephone Status Conference to Discuss a New Schedule filed by Defendant Jon Husted, Intervenor State Of Ohio. (Richardson, Ryan) (Entered: 01/26/2016)
518 ORDER SETTING TELEPHONIC Status Conference for 1/28/2016 03:00 PM in Courtroom 1 − Columbus before Judge Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 1/27/2016. (cw) (Entered: 01/27/2016)
519 NOTICE of Substitution of Counsel − Nick A Soulas, Jr substituting for Patrick J. Piccininni as to Material Witness Franklin County Board of Elections. (Soulas, Nick) (Entered: 01/28/2016)
520 ORDER denying 515 Motion to Quash; granting in part and denying in part 516 Motion for Extension of Time. Signed by Judge Algenon L. Marbley on 1/29/2016. (cw) (Entered: 01/29/2016)
521 ORDER − correcting deadline for Plaintiffs' motion and supporting memorandum. Due date for same is 2/3/2016. Signed by Judge Algenon L. Marbley on 2/1/2016. (cw) (Entered: 02/01/2016)
522 STIPULATION /Stipulated Protective Order by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Attachments: # 1 Exhibit A) (Crawford, Ana) (Entered: 02/01/2016)
523 STIPULATED PROTECTIVE ORDER. Signed by Judge Algenon L. Marbley on 2/3/2016. (Attachments: # 1 Exhibit A) (cw) (Entered: 02/03/2016)
524 MOTION for Discovery /Plaintiffs' Motion for Leave to Conduct Additional Discovery by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. Responses due by 2/29/2016 (Attachments: # 1 Exhibit 3) (Gentry, Caroline) (Entered: 02/03/2016)
525 MOTION to File Document Under Seal /Plaintiffs' Motion for Leave to File Unredacted Ballot Forms Under Seal by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. Responses due by 2/29/2016 (Attachments: # 1 Text of Proposed Order Proposed Order) (Gentry, Caroline) (Entered: 02/03/2016)
526 NOTICE of Appearance by John Corey Colombo for Intervenor Plaintiff Ohio Democratic Party (Colombo, John) (Entered: 02/04/2016)
527 NOTICE of Appearance by Derek S. Clinger for Intervenor Plaintiff Ohio Democratic Party (Clinger, Derek) (Entered: 02/04/2016)
528 NOTICE by Intervenor Plaintiff Ohio Democratic Party of Withdrawal of Co−Counsel (McGinnis, Mark) (Entered: 02/04/2016)
529 RESPONSE in Opposition re 524 MOTION for Discovery /Plaintiffs' Motion for Leave to Conduct Additional Discovery filed by Defendant Jon Husted, Intervenor State Of Ohio. (Richardson, Ryan) (Entered: 02/08/2016)
530 REPLY to Response to Motion re 524 MOTION for Discovery /Plaintiffs' Motion for Leave to Conduct Additional Discovery /Plaintiffs' Reply Memorandum in Support of Their Motion for Leave to Conduct Additional Discovery filed by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Gentry, Caroline) (Entered: 02/09/2016)

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02/11/2016 02/19/2016 02/22/2016 02/22/2016 02/22/2016 02/22/2016 02/22/2016 02/22/2016 02/22/2016 02/22/2016 02/22/2016 02/22/2016 02/22/2016 02/22/2016 02/22/2016

531 ORDER granting 525 Motion to File Document Under Seal. Signed by Judge Algenon L. Marbley on 2/11/2016. (cw) (Entered: 02/11/2016)
534 ORDER granting in part and denying in part 524 Motion for Discovery. Signed by Judge Algenon L. Marbley on 2/19/2016. (cw) (Entered: 02/19/2016)
535 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Subpoena Duces tecum Upon Adams County Board of Elections (Attachments: # 1 Supplement Subpoena to Adams County Bd of Elections) (Gentry, Caroline) (Entered: 02/22/2016)
536 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Subpoena Duces Tecum Upon Carroll County Board of Elections (Attachments: # 1 Supplement Subpoena to Carroll County Bd of Elections) (Gentry, Caroline) (Entered: 02/22/2016)
537 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Subpoena Duces Tecum Upon Fayette County Board of Elections (Attachments: # 1 Supplement Subpoena to Fayette County Bd of Elections) (Gentry, Caroline) (Entered: 02/22/2016)
538 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Subpoena Duces Tecum Upon Gallia County Board of Elections (Attachments: # 1 Supplement Subpoena to Gallia County Bd of Elections) (Gentry, Caroline) (Entered: 02/22/2016)
539 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Subpoena Duces Tecum Upon Hardin County Board of Elections (Attachments: # 1 Supplement Subpoena to Hardin County Bd of Elections) (Gentry, Caroline) (Entered: 02/22/2016)
540 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Subpoena Duces Tecum Upon Harrison County Board of Elections (Attachments: # 1 Supplement Subpoena to Harrison County Bd of Elections) (Gentry, Caroline) (Entered: 02/22/2016)
541 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Subpoena Duces Tecum Upon Holmes County Board of Elections (Attachments: # 1 Supplement Subpoena to Holmes County Bd of Elections) (Gentry, Caroline) (Entered: 02/22/2016)
542 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Subpoena Duces Tecum Upon Meigs County Board of Elections (Attachments: # 1 Supplement Subpoena to Meigs County Bd of Elections) (Gentry, Caroline) (Entered: 02/22/2016)
543 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Subpoena Duces Tecum Upon Monroe County Board of Elections (Attachments: # 1 Supplement Subpoena to Monroe County Bd of Elections) (Gentry, Caroline) (Entered: 02/22/2016)
544 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Subpoena Duces Tecum Upon Morgan County Board of Elections (Attachments: # 1 Supplement Subpoena to Morgan County Bd of Elections) (Gentry, Caroline) (Entered: 02/22/2016)
545 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Subpoena Duces Tecum Upon Noble County Board of Elections (Attachments: # 1 Supplement Subpoena to Noble County Bd of Elections) (Gentry, Caroline) (Entered: 02/22/2016)
546 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Subpoena Duces Tecum Upon Paulding County Board of Elections (Attachments: # 1 Supplement Subpoena to Paulding County Bd of Elections) (Gentry, Caroline) (Entered: 02/22/2016)
547 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Subpoena Duces Tecum Upon Vinton County Board of Elections (Attachments: # 1 Supplement Subpoena to Vinton County

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02/22/2016 02/24/2016 02/24/2016
02/29/2016 03/02/2016 03/02/2016 03/02/2016 03/02/2016 03/02/2016
03/02/2016 03/02/2016 03/02/2016 03/02/2016 03/03/2016 03/04/2016

Bd of Elections) (Gentry, Caroline) (Entered: 02/22/2016)
548 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless /Notice of Service of Subpoena Duces Tecum Upon Wyandot County Board of Elections (Attachments: # 1 Supplement Subpoena to Wyandot County Bd of Elections) (Gentry, Caroline) (Entered: 02/22/2016)
549 ORDER directing Parties to submit a joint proposed final pretrial order on or before March 8, 2016 re 460 Order, Set Deadlines/Hearings. Signed by Judge Algenon L. Marbley on 2/24/20216. (cw) (Entered: 02/24/2016)
550 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Plaintiffs' Notice of Refusal of Non−Party Monroe County Board of Elections to Comply with Subpoena (Attachments: # 1 Exhibit 1 − subpoena, # 2 Exhibit 2 − email correspondence) (Gentry, Caroline) (Entered: 02/24/2016)
551 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless of Service of Deposition Subpoena upon Cuyahoga County Board of Elections (Gupta, Sandhya) (Entered: 02/29/2016)
552 Witness List by Defendant Jon Husted, Intervenor State Of Ohio. (Richardson, Ryan) (Entered: 03/02/2016)
553 Exhibit List by Defendant Jon Husted, Intervenor State Of Ohio.. (Richardson, Ryan) (Entered: 03/02/2016)
554 MOTION in Limine to Exclude Evidence of Legislative Intent by Defendant Jon Husted, Intervenor State Of Ohio. Responses due by 3/28/2016 (Richardson, Ryan) (Entered: 03/02/2016)
555 MOTION in Limine to Exclude Plaintiffs' Expert Opinion Testimony and Motion to Strike Plaintiffs' Expert Reports of Professor Jeffrey Timberlake by Defendant Jon Husted, Intervenor State Of Ohio. Responses due by 3/28/2016 (Richardson, Ryan) (Entered: 03/02/2016)
556 NOTICE OF FILING DEPOSITION of Jeffrey Timberlake by Defendant Jon Husted, Intervenor State Of Ohio. (Attachments: # 1 Exhibit Deposition Transcript, # 2 Exhibit Deposition Exhibit 1, # 3 Exhibit Deposition Exhibit 2, # 4 Exhibit Deposition Exhibit 3, # 5 Exhibit Deposition Exhibit 4, # 6 Exhibit Deposition Exhibit 5, # 7 Exhibit Deposition Exhibit 6, # 8 Exhibit Deposition Exhibit 7) (Richardson, Ryan) (Entered: 03/02/2016)
557 NOTICE by Defendant Jon Husted, Intervenor State Of Ohio of Deposition Designations (Attachments: # 1 Exhibit Donald Strasser Transcript Designation, # 2 Exhibit Brian Davis Transcript Designation, # 3 Exhibit Greg Beswick Transcript Designation) (Richardson, Ryan) (Entered: 03/02/2016)
558 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Plaintiffs' Notice of Filing Designations of Oral Testimony (Gentry, Caroline) (Entered: 03/02/2016)
559 Exhibit List by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party.. (Gupta, Sandhya) (Entered: 03/02/2016)
560 Witness List by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Gupta, Sandhya) (Entered: 03/02/2016)
561 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless re 551 Notice (Other) of Service of Deposition Subpoena upon Cuyahoga County Board of Elections (Amended) (Gupta, Sandhya) (Entered: 03/03/2016)
562 First MOTION to Quash by Respondent Holmes County Board of Elections. Responses due by 3/28/2016 (Warner, Sean) (Entered: 03/04/2016)

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03/07/2016 03/07/2016 03/07/2016 03/07/2016 03/07/2016 03/07/2016 03/07/2016 03/07/2016 03/07/2016 03/07/2016 03/07/2016 03/07/2016 03/07/2016 03/07/2016 03/07/2016
03/08/2016
03/08/2016

563 ORDER RESETTING Final Pretrial Conference for 3/14/2016 at 02:00 PM in Chambers before Judge Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 03/04/2016. (cw) (Entered: 03/07/2016)
564 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless of Service of Trial Subpoena Upon Brian Sleeth (Crawford, Ana) (Entered: 03/07/2016)
565 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless of Service of Trial Subpoena Upon Paul Adams (Crawford, Ana) (Entered: 03/07/2016)
566 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless of Service of Trial Subpoena Upon Susan Bloom (Crawford, Ana) (Entered: 03/07/2016)
567 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless of Service of Trial Subpoena Upon Carolyn Clark (Crawford, Ana) (Entered: 03/07/2016)
568 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless of Service of Trial Subpoena Upon Jeanette Mullane (Crawford, Ana) (Entered: 03/07/2016)
569 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless of Service of Trial Subpoena Upon Catherine Overbeck (Crawford, Ana) (Entered: 03/07/2016)
570 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless of Service of Trial Subpoena Upon Josh Pedaline (Crawford, Ana) (Entered: 03/07/2016)
571 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless of Service of Trial Subpoena Upon Paulette Hankins (Crawford, Ana) (Entered: 03/07/2016)
572 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless of Service of Trial Subpoena upon Kenneth Terry (Crawford, Ana) (Entered: 03/07/2016)
573 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless of Service of Trial Subpoena Upon Jan Kelly (Crawford, Ana) (Entered: 03/07/2016)
574 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless of Service of Trial Subpoena Upon Eric Morgan (Crawford, Ana) (Entered: 03/07/2016)
575 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless of Service of Trial Subpoena Upon Rebecca Johnston (Crawford, Ana) (Entered: 03/07/2016)
576 ORDER SETTING A TELEPHONIC STATUS CONFERENCE for 3/8/2016 03:30 PM before Judge Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 03/07/2016. (cw) (Entered: 03/07/2016)
577 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party of Refusal of Non−Party Holmes County Board of Elections to Comply with Subpoena (Attachments: # 1 Exhibit Subpoena, # 2 Exhibit Email Correspondence) (McTigue, Donald) (Entered: 03/07/2016)
578 RESPONSE in Opposition re 554 MOTION in Limine to Exclude Evidence of Legislative Intent filed by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Chandra, Subodh) (Entered: 03/08/2016)
579 RESPONSE in Opposition re 555 MOTION in Limine to Exclude Plaintiffs' Expert Opinion Testimony and Motion to Strike Plaintiffs' Expert Reports of Professor Jeffrey

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03/08/2016 03/08/2016 03/10/2016 03/10/2016 03/11/2016 03/11/2016
03/11/2016 03/11/2016 03/14/2016 03/14/2016

Timberlake filed by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Attachments: # 1 Excerpt from Nov. 17, 2015 Trial Transcript from ODP v. Husted, Case No. 2:15−cv−1802) (McTigue, Donald) (Entered: 03/08/2016)
580 Objection re 558 Notice (Other) to Plaintiffs' Deposiiton Designations and Defendants' Counter−Designations by Defendant Jon Husted, Intervenor State Of Ohio. (Richardson, Ryan) (Entered: 03/08/2016)
581 Objection re 557 Notice (Other), to Defendants' Deposition Designations by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Gupta, Sandhya) (Entered: 03/08/2016)
582 TRIAL BRIEF /Plaintiffs' Trial Brief by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Attachments: # 1 Exhibit A) (Gentry, Caroline) (Entered: 03/10/2016)
583 TRIAL BRIEF by Defendant Jon Husted, Intervenor State Of Ohio. (Keller, Zachery) (Entered: 03/10/2016)
584 NOTICE OF FILING DEPOSITION of Matthew Damschroder by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless. (Crawford, Ana) (Entered: 03/11/2016)
585 DEPOSITION of Matthew Damschroder taken on February 25, 2016 by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless. (Attachments: # 1 Exhibit 1 to Matthew Damschroder Deposition, # 2 Exhibit 2 to Matthew Damschroder Deposition, # 3 Exhibit 3 to Matthew Damschroder Deposition, # 4 Exhibit 4 to Matthew Damschroder Deposition, # 5 Exhibit 5 to Matthew Damschroder Deposition, # 6 Exhibit 6 to Matthew Damschroder Deposition, # 7 Exhibit 7 to Matthew Damschroder Deposition, # 8 Exhibit 8 − Part 1 to Matthew Damschroder Deposition, # 9 Exhibit 8 − Part 2 to Matthew Damschroder Deposition, # 10 Exhibit 9 to Matthew Damschroder Deposition, # 11 Exhibit 10 to Matthew Damschroder Deposition, # 12 Exhibit 11 to Matthew Damschroder Deposition, # 13 Exhibit 12 to Matthew Damschroder Deposition, # 14 Exhibit 13 to Matthew Damschroder Deposition, # 15 Exhibit 14 to Matthew Damschroder Deposition, # 16 Exhibit 15 to Matthew Damschroder Deposition, # 17 Exhibit 16 to Matthew Damschroder Deposition, # 18 Exhibit 17 to Matthew Damschroder Deposition, # 19 Exhibit 18 to Matthew Damschroder Deposition, # 20 Exhibit 19 to Matthew Damschroder Deposition, # 21 Exhibit 20 to Matthew Damschroder Deposition, # 22 Exhibit 21 to Matthew Damschroder Deposition, # 23 Exhibit 22 to Matthew Damschroder Deposition, # 24 Exhibit 23 to Matthew Damschroder Deposition, # 25 Exhibit 24 to Matthew Damschroder Deposition, # 26 Exhibit 25 to Matthew Damschroder Deposition, # 27 Exhibit 26 to Matthew Damschroder Deposition) (Crawford, Ana) (Entered: 03/11/2016)
586 MOTION to File Document Under Seal by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless. Responses due by 4/4/2016 (Attachments: # 1 Text of Proposed Order Granting Plaintiffs' Motion for Leave to File Depositions with Unredacted Ballot Forms Under Seal) (Crawford, Ana) Modified event on 3/15/2016 (er). (Entered: 03/11/2016)
587 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party, Intervenor State Of Ohio of Final Pretrial Order proposed by the parties (Attachments: # 1 Appendix A: Plaintiffs' and Defendants' Experts Resumes, # 2 Appendix B: Plaintiffs' Amended Trial Exhibit List, # 3 Appendix C: #533 Defendants' Initial Trial Exhibit List, # 4 Appendix D: Plaintiffs' Revised Witness List, # 5 Appendix E: #552 Defendants' Initial Witness List) (Chandra, Subodh) (Entered: 03/11/2016)
588 ORDER granting 586 Motion to Seal. Parties are permitted to file all depositions containing unredacted ballot forms under seal. Signed by Judge Algenon L. Marbley on 3/14/2016. (cw) (Entered: 03/14/2016)
589 Witness List by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Chandra,

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03/14/2016 03/14/2016 03/14/2016 03/14/2016 03/14/2016 03/14/2016 03/15/2016 03/15/2016 03/15/2016 03/15/2016 03/15/2016 03/15/2016 03/15/2016 03/15/2016 03/15/2016 03/15/2016 03/15/2016 03/15/2016

Subodh) (Entered: 03/14/2016)
590 NOTICE by Intervenor Plaintiff Ohio Democratic Party Notice of Trial Subpoena for Dan Shellenbarger (Clinger, Derek) (Entered: 03/14/2016)
591 NOTICE by Intervenor Plaintiff Ohio Democratic Party Notice of Trial Subpoena for the Custodian of Record for the Ohio Government Telecommunications Services (Clinger, Derek) (Entered: 03/14/2016)
592 NOTICE by Intervenor Plaintiff Ohio Democratic Party Notice of Trial Subpoena for the Custodian of Record for the Ohio Channel (Clinger, Derek) (Entered: 03/14/2016)
593 NOTICE by Intervenor Plaintiff Ohio Democratic Party Notice of Trial Subpoena for Mark Flanders (Clinger, Derek) (Entered: 03/14/2016)
594 NOTICE by Intervenor Plaintiff Ohio Democratic Party Notice of Trial Subpoena for the Custodian of Record for the Ohio Legislative Service Commission/Ohio Legislative Information Services (Clinger, Derek) (Entered: 03/14/2016)
595 NOTICE OF FILING DEPOSITION of Kenneth Terry, et al. by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless. (Crawford, Ana) (Entered: 03/14/2016)
596 Witness List by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Chandra, Subodh) (Entered: 03/15/2016)
610 NOTICE by Intervenor Plaintiff Ohio Democratic Party Notice of Trial Subpoena for Zachary Manifold (Clinger, Derek) (Entered: 03/15/2016)
617 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless of Service of Trial Subpoena Upon Jocelyn Bucaro (Crawford, Ana) (Entered: 03/15/2016)
618 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless of Service of Trial Subpoena Upon Sherry Poland (Crawford, Ana) (Entered: 03/15/2016)
619 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless of Service of Trial Subpoena Upon Pat McAlea (Crawford, Ana) (Entered: 03/15/2016)
620 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless of Service of Trial Subpoena Upon Betty Edwards (Crawford, Ana) (Entered: 03/15/2016)
621 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless of Service of Trial Subpoena Upon Paula Sauter (Crawford, Ana) (Entered: 03/15/2016)
622 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless of Service of Trial Subpoena Upon Lavera Scott (Crawford, Ana) (Entered: 03/15/2016)
623 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless of Service of Trial Subpoena Upon M. Darlene Tompkins (Crawford, Ana) (Entered: 03/15/2016)
624 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless of Service of Trial Subpoena Upon Elizabeth Fulton (Crawford, Ana) (Entered: 03/15/2016)
625 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless of Service of Trial Subpoena Upon Alicia Healy (Crawford, Ana) (Entered: 03/15/2016)
626 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless of Service of Trial Subpoena Upon Stephanie Thompson (Crawford, Ana) (Entered: 03/15/2016)

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03/15/2016 03/15/2016 03/15/2016 03/15/2016 03/15/2016 03/15/2016 03/15/2016 03/15/2016 03/15/2016 03/15/2016 03/15/2016
03/15/2016 03/16/2016 03/16/2016 03/16/2016
03/17/2016 03/17/2016

627 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless of Service of Trial Subpoena Upon Amanda Tubaugh (Crawford, Ana) (Entered: 03/15/2016)
628 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless of Service of Trial Subpoena Upon Beth Ann Snyder (Crawford, Ana) (Entered: 03/15/2016)
629 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless of Service of Trial Subpoena Upon Dale B. Whitt (Crawford, Ana) (Entered: 03/15/2016)
630 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless of Service of Trial Subpoena Upon Sandra Bookmeyer (Crawford, Ana) (Entered: 03/15/2016)
631 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless of Service of Trial Subpoena Upon Cindy Bear (Crawford, Ana) (Entered: 03/15/2016)
632 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless of Service of Trial Subpoena Upon Charney Fitz (Crawford, Ana) (Entered: 03/15/2016)
633 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless of Service of Trial Subpoena Upon Michelle Larrick (Crawford, Ana) (Entered: 03/15/2016)
634 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless of Service of Trial Subpoena Upon Brenda Crawford (Crawford, Ana) (Entered: 03/15/2016)
635 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless of Service of Trial Subpoena Upon Lynn Herrold (Crawford, Ana) (Entered: 03/15/2016)
636 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless of Service of Trial Subpoena Upon Jenise Derr (Crawford, Ana) (Entered: 03/15/2016)
637 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party re 558 Notice (Other) of Filing Additional Designations of Oral Testimony (Gupta, Sandhya) (Entered: 03/15/2016)
638 NOTICE by Defendant Jon Husted, Intervenor State Of Ohio of Supplemental Designations of Deposition Testimony for Trial (Attachments: # 1 Exhibit Deposition Designations) (Richardson, Ryan) (Entered: 03/15/2016)
639 ORDER denying 554 Motion in Limine; denying 555 Motion in Limine. Signed by Judge Algenon L. Marbley on 3/16/2016. (cw) (Entered: 03/16/2016)
640 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless of Service of Trial Subpoena Upon Debra Passet (Crawford, Ana) (Entered: 03/16/2016)
Minute Entry for proceedings held before Judge Algenon L. Marbley: Bench Trial held on 3/16/2016; Plaintiss call K. Clyde, J. Pedaline, S. Bloom (Court Reporters: Darla Coulter & Denis Errett for the p.m.) (bc) Modified to reflect Court Reporters in docket text on 4/6/2016 (tt). (Entered: 04/01/2016)
641 Exhibit List /Plaintiffs' Second Amended Trial Exhibit List by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party.. (Gentry, Caroline) (Entered: 03/17/2016)
642 ORDER granting 461 Motion to Correct the Record Nunc pro Tunc. The Clerk of Court is ORDERED to clarify the record by deeming Plaintiffs Second Supplemental Complaint to have been filed on October 30, 2014. Signed by Judge Algenon L. Marbley on 3/17/2016. (cw) (Entered: 03/17/2016)

Case: 2:06-cv-896 As of: 05/19/2020 07:15 PM EDT 65 of 82

03/17/2016 03/18/2016 03/18/2016
03/18/2016 03/20/2016
03/21/2016 03/21/2016
03/21/2016 03/22/2016 03/22/2016 03/23/2016 03/24/2016

Minute Entry for proceedings held before Judge Algenon L. Marbley: Bench Trial held on 3/17/2016; Plaintiff call E. McNair; A. Perlatti, T. Burke, Z. West (Court Reporters: Denise Errett & Darla Coulter p.m. session) (bc) Modified to reflect Court Reporters in docket text on 4/6/2016 (tt). (Entered: 04/01/2016)
643 NOTICE OF FILING DEPOSITION of Betty Edwards, et al. by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless. (Crawford, Ana) (Entered: 03/18/2016)
646 MOTION to Quash by Movants The Ohio Government Telecommunications Services, The Ohio Channel, Daniel Shellenbarger. Responses due by 4/11/2016 (Attachments: # 1 Exhibit 1: Letter from T. Palmer to D. McTigue dated March 15, 2016, # 2 Exhibit 2: Email from D. McTigue to T. Palmer dated March 15, 2016, # 3 Exhibit 3: Email from D. McTigue to B. Coontz, dated November 19, 2015, attaching Stipulation, # 4 Exhibit 4: Email from D. McTigue to T. Palmer dated November 20, 2015, # 5 Exhibit 5: Transcript of Hearing, dated December 3, 2015) (Sineneng, Philip) (Entered: 03/18/2016)
Minute Entry for proceedings held before Judge Algenon L. Marbley: Bench Trial held on 3/18/2016; Plaintiff call Z. Manifold, P. Adams (Court Reporters: Darla Coulter & Dennis Errett) (bc) Modified to reflect Court Reporters in docket text on 4/6/2016 (tt). (Entered: 04/01/2016)
647 NOTICE OF WITHDRAWAL OF DOCUMENT by Intervenor Plaintiff Ohio Democratic Party re 594 Notice (Other), 590 Notice (Other), 592 Notice (Other), 593 Notice (Other), 591 Notice (Other) NOTICE OF WITHDRAWAL OF TRIAL SUBPOENAS TO DAN SHELLENBARGER, MARK FLANDERS, THE CUSTODIAN OF RECORD FOR OHIO GOVERNMENT TELECOMMUNICATIONS SERVICES, THE CUSTODIAN OF RECORD FOR THE OHIO CHANNEL, AND THE CUSTODIAN OF RECORD FOR THE OHIO LEGISLATIVE SERVICE COMMISSION/OHIO LEGISLATIVE INFORMATION SERVICES (Clinger, Derek) (Entered: 03/20/2016)
648 NOTICE OF WITHDRAWAL OF DOCUMENT by Movants Daniel Shellenbarger, The Ohio Channel, The Ohio Government Telecommunications Services re 646 MOTION to Quash (Sineneng, Philip) (Entered: 03/21/2016)
649 NOTICE OF WITHDRAWAL OF DOCUMENT by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless re 569 Notice (Other), 620 Notice (Other), 624 Notice (Other), 567 Notice (Other), 625 Notice (Other), 568 Notice (Other), 571 Notice (Other), 623 Notice (Other), 619 Notice (Other), 573 Notice (Other), 572 Notice (Other) of Trial Subpoenas Duces Tecum (Attachments: # 1 subpoenas) (Crawford, Ana) (Entered: 03/21/2016)
Minute Entry for proceedings held before Judge Algenon L. Marbley: Bench Trial held on 3/21/2016; Direct of W. Anthony continued; Plaintiff call E. Morgan, M. Lee, B. Davis (Court Reporters: Denise Errett & Darla Coulter) (bc) Modified to reflect Court Reporters in docket text on 4/6/2016 (tt). (Entered: 04/01/2016)
650 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless of Service of Trial Subpoena Upon Vickie Reed (Crawford, Ana) (Entered: 03/22/2016)
Minute Entry for proceedings held before Judge Algenon L. Marbley: Bench Trial held on 3/22/2016; Plaintiff call J. Timberlake, (Court Reporter: Denise Errett) (bc) Modified to reflect Court Reporter in docket text on 4/6/2016 (tt). (Entered: 04/01/2016)
Minute Entry for proceedings held before Judge Algenon L. Marbley: Bench Trial held on 3/23/2016; Cross of Timberlake continued; Plaintiff call J. Bucaon, N. Turner, L. ScottB. Sleeth, D. Strasser (Court Reporters: Denise Errett & Darla Coulter) (bc) Modified to reflect Court Reporters in docket text on 4/6/2016 (tt). (Entered: 04/01/2016)
651 NOTICE OF WITHDRAWAL OF DOCUMENT by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless re 630 Notice (Other), 629 Notice (Other), 635 Notice (Other), 632 Notice (Other) of Trial Subpoenas Duces Tecum (Attachments: # 1 subpoenas duces tecum) (Crawford, Ana) (Entered:

Case: 2:06-cv-896 As of: 05/19/2020 07:15 PM EDT 66 of 82

03/24/2016 03/25/2016 03/28/2016 03/29/2016 03/30/2016 03/30/2016 03/31/2016 03/31/2016 04/06/2016

03/24/2016)
Minute Entry for proceedings held before Judge Algenon L. Marbley: Bench Trial held on 3/24/2016; Plaintiff call D. Strasser; Direct of B. Davis continued; Plaintiff call P. Sauter, Def call T. Ward (Court Reporters: Denise Errett & D. Coulter) (bc) Modified to reflect Court Reporters in docket text on 4/6/2016 (tt). (Entered: 04/01/2016)
Minute Entry for proceedings held before Judge Algenon L. Marbley: Bench Trial held on 3/25/2016; Def call Professor N. McCarty (Court Reporter: Denise Errett) (bc) Modified to reflect Court Reporter in docket text on 4/6/2016 (tt). (Entered: 04/01/2016)
Minute Entry for proceedings held before Judge Algenon L. Marbley: Bench Trial held on 3/28/2016; Plaintiff call V. Reed, B. Crawford, C. Bear, M. Larrick, S. Osman, D. Passet, B. Snyder (Court Reporters: Darla Coulter D. Errett) (bc) Modified to reflect Court Reporters in docket text on 4/6/2016 (tt). (Entered: 04/01/2016)
Minute Entry for proceedings held before Judge Algenon L. Marbley: Bench Trial held on 3/29/2016; Def call M.V. Hood, S. Poland (Court Reporters: Denise Errett & Darla Coulter) (bc) Modified to reflect Court Reporters in docket text on 4/6/2016 (tt). (Entered: 04/01/2016)
652 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party re 638 Notice (Other) Objections to Defendants' Supplemental Deposition Designations (Gupta, Sandhya) (Entered: 03/30/2016)
Minute Entry for proceedings held before Judge Algenon L. Marbley: Bench Trial held on 3/30/2016. Stipulations of exh; Stipulations of Depositions; Plaintiff REST; Def call K. Terry, M. Damschroder (Court Reporters: Denise Errett & Darla Coulter) (bc) Modified to reflect Court Reporters in docket text on 4/6/2016 (tt). (Entered: 04/01/2016)
653 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party of Filing of Stipulations as to Ohio General Assembly Floor Session Video Recordings (Attachments: # 1 Exhibit Stipulations) (McTigue, Donald) (Entered: 03/31/2016)
Minute Entry for proceedings held before Judge Algenon L. Marbley: Cross Of Damschroeder continued; Stipulation entered; Def RESTBench Trial completed on 3/31/2016. (Court Reporter: Denise Errett) (bc) Modified to reflect Court Reporter in docket text on 4/6/2016 (tt). (Entered: 04/01/2016)
654 Transcript of Bench Trial Proceedings, Volume 1, held on 03−16−2016, before Judge Algenon L. Marbley. Court Reporter/Transcriber Denise Errett, Official, & Darla Coulter, Telephone number (614) 719−3029. 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.

04/06/2016 04/06/2016

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 4/27/2016. Redacted Transcript Deadline set for 5/9/2016. Release of Transcript Restriction set for 7/5/2016. (Errett, Denise) (Entered: 04/06/2016)
655 POST TRIAL SCHEDULING ORDER. Signed by Judge Algenon L. Marbley on 4/6/2016. (cw) (Entered: 04/06/2016)
656 Transcript of Bench Trial Proceedings, Volume 2, held on 03−17−2016, before Judge Algenon L. Marbley. Court Reporter/Transcriber Denise Errett, Official, & Darla Coulter, Telephone number (614) 719−3029. Transcript may be viewed at the court

Case: 2:06-cv-896 As of: 05/19/2020 07:15 PM EDT 67 of 82

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.

04/06/2016

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 4/27/2016. Redacted Transcript Deadline set for 5/9/2016. Release of Transcript Restriction set for 7/5/2016. (Errett, Denise) (Entered: 04/06/2016)
657 Transcript of Bench Trial Proceedings, Volume 3, held on 03−18−2016, before Judge Algenon L. Marbley. Court Reporter/Transcriber Denise Errett, Official, & Darla Coulter, Telephone number (614) 719−3029. 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.

04/06/2016

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 4/27/2016. Redacted Transcript Deadline set for 5/9/2016. Release of Transcript Restriction set for 7/5/2016. (Errett, Denise) (Entered: 04/06/2016)
658 Transcript of Bench Trial Proceedings, Volume 4, held on 03−21−2016, before Judge Algenon L. Marbley. Court Reporter/Transcriber Denise Errett, Official, & Darla Coulter, Telephone number (614) 719−3029. 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.

04/06/2016

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 4/27/2016. Redacted Transcript Deadline set for 5/9/2016. Release of Transcript Restriction set for 7/5/2016. (Errett, Denise) (Entered: 04/06/2016)
659 Transcript of Bench Trial Proceedings, Volume 5, held on 03−22−2016, before Judge Algenon L. Marbley. Court Reporter/Transcriber Denise Errett, Official, & Darla Coulter, Telephone number (614) 719−3029. 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.

Case: 2:06-cv-896 As of: 05/19/2020 07:15 PM EDT 68 of 82

04/06/2016

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 4/27/2016. Redacted Transcript Deadline set for 5/9/2016. Release of Transcript Restriction set for 7/5/2016. (Errett, Denise) (Entered: 04/06/2016)
660 Transcript of Bench Trial Proceedings, Volume 6, held on 03−23−2016, before Judge Algenon L. Marbley. Court Reporter/Transcriber Denise Errett, Official, & Darla Coulter, Telephone number (614) 719−3029. 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.

04/06/2016

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 4/27/2016. Redacted Transcript Deadline set for 5/9/2016. Release of Transcript Restriction set for 7/5/2016. (Errett, Denise) (Entered: 04/06/2016)
661 Transcript of Bench Trial Proceedings, Volume 7, held on 03−24−2016, before Judge Algenon L. Marbley. Court Reporter/Transcriber Denise Errett, Official, & Darla Coulter, Telephone number (614) 719−3029. 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.

04/06/2016

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 4/27/2016. Redacted Transcript Deadline set for 5/9/2016. Release of Transcript Restriction set for 7/5/2016. (Errett, Denise) (Entered: 04/06/2016)
662 Transcript of Bench Trial Proceedings, Volume 8, held on 03−25−2016, before Judge Algenon L. Marbley. Court Reporter/Transcriber Denise Errett, Official, & Darla Coulter, Telephone number (614) 719−3029. 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.

04/06/2016

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 4/27/2016. Redacted Transcript Deadline set for 5/9/2016. Release of Transcript Restriction set for 7/5/2016. (Errett, Denise) (Entered: 04/06/2016)
663 Transcript of Bench Trial Proceedings, Volume 9, held on 03−28−2016, before Judge Algenon L. Marbley. Court Reporter/Transcriber Denise Errett, Official, & Darla Coulter, Telephone number (614) 719−3029. 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.

Case: 2:06-cv-896 As of: 05/19/2020 07:15 PM EDT 69 of 82

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.

04/06/2016

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 4/27/2016. Redacted Transcript Deadline set for 5/9/2016. Release of Transcript Restriction set for 7/5/2016. (Errett, Denise) (Entered: 04/06/2016)
664 Transcript of Bench Trial Proceedings, Volume 10, held on 03−29−2016, before Judge Algenon L. Marbley. Court Reporter/Transcriber Denise Errett, Official, & Darla Coulter, Telephone number (614) 719−3029. 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.

04/06/2016

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 4/27/2016. Redacted Transcript Deadline set for 5/9/2016. Release of Transcript Restriction set for 7/5/2016. (Errett, Denise) (Entered: 04/06/2016)
665 Transcript of Bench Trial Proceedings, Volume 11, held on 03−30−2016, before Judge Algenon L. Marbley. Court Reporter/Transcriber Denise Errett, Official, & Darla Coulter, Telephone number (614) 719−3029. 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.

04/06/2016

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office.( Redaction Request due 4/27/2016., Redacted Transcript Deadline set for 5/9/2016., Release of Transcript Restriction set for 7/5/2016.) (Errett, Denise) (Entered: 04/06/2016)
666 Transcript of Bench Trial Proceedings, Volume 12, held on 03−31−2016, before Judge Algenon L. Marbley. Court Reporter/Transcriber Denise Errett, Official, Telephone number (614) 719−3029. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

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

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 4/27/2016. Redacted Transcript Deadline set for 5/9/2016. Release of Transcript Restriction set for 7/5/2016. (Errett, Denise) (Entered: 04/06/2016)

Case: 2:06-cv-896 As of: 05/19/2020 07:15 PM EDT 70 of 82

04/06/2016 04/07/2016 04/07/2016 04/08/2016
04/08/2016 04/08/2016 04/08/2016
04/13/2016 04/15/2016 04/19/2016

667 Exhibit List /Plaintiffs' Third Amended Trial Exhibit List by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless.. (Gentry, Caroline) (Entered: 04/06/2016)
668 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless re 585 Deposition,,,,,, /Notice of Filing of Signature Page and Errata Sheet for Deposition of Matthew Damschroder (Attachments: # 1 Supplement Signature page and errata sheet) (Gentry, Caroline) (Entered: 04/07/2016)
669 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless re 638 Notice (Other), 557 Notice (Other), of Filing Errata Sheets for Deposition Transcripts of Brian Davis and Donald Strasser (Attachments: # 1 Exhibit Ex. A − Davis Errata Sheet (January 28, 2016), # 2 Exhibit Ex. B Davis Errata Sheet (March 9, 2016), # 3 Exhibit Ex. C Errata Sheet (Jan. 27, 2016)) (Gupta, Sandhya) (Entered: 04/07/2016)
672 STIPULATION regarding Declarations of Individual−Voter Witnesses by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party, Intervenor State Of Ohio. (Attachments: # 1 Exhibit Allen, Don declaration, # 2 Exhibit Boggs, Kenneth declaration, # 3 Exhibit Coffman, Elizabeth declaration, # 4 Exhibit Davis, Cheryl declaration, # 5 Exhibit Davis, Hugh declaration, # 6 Exhibit Dehmann, Keith declaration, # 7 Exhibit Galko, Katherine declaration, # 8 Exhibit Gilbert, Ronald declaration, # 9 Exhibit Hiir, Kadar declaration, # 10 Exhibit Hire, Elisabeth declaration, # 11 Exhibit Kelly, Karen declaration, # 12 Exhibit Khan, Liakat declaration, # 13 Exhibit Lahm, Gunther declaration, # 14 Exhibit Lahm, Linda declaration, # 15 Exhibit Miller, Sally declaration, # 16 Exhibit Samuel, Shelley declaration, # 17 Exhibit Thielsen, Peggy declaration, # 18 Exhibit White, Courtney declaration) (Chandra, Subodh) (Entered: 04/08/2016)
673 MOTION to File Document Under Seal by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. Responses due by 5/2/2016 (Attachments: # 1 Text of Proposed Order Granting Plaintiffs' Motion for Leave to File County Declarations with Unredacted Attachments Under Seal) (Gupta, Sandhya) (Entered: 04/08/2016)
674 Exhibit List Defendants' Final Trial Exhibits List by Defendant Jon Husted, Intervenor State Of Ohio.. (Richardson, Ryan) (Entered: 04/08/2016)
675 STIPULATION regarding Declarations of County Board−of−Elections Officials by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party, Intervenor State Of Ohio. (Attachments: # 1 Exhibit Allen County Declaration, # 2 Exhibit Butler County Declaration, # 3 Exhibit Cuyahoga County Declaration − Absentee, # 4 Exhibit Cuyahoga County Declaration − Provisional, # 5 Exhibit Delaware County Declaration, # 6 Exhibit Fairfield County Declaration, # 7 Exhibit Lawrence County Declaration, # 8 Exhibit Lucas County Declaration, # 9 Exhibit Miami County Declaration, # 10 Exhibit Richland County Declaration, # 11 Exhibit Stark County Declaration, # 12 Exhibit Warren County Declaration, # 13 Exhibit Summit County Declaration) (Gupta, Sandhya) (Entered: 04/08/2016)
676 Notice of Intent to Request Redaction re 657 Transcript,,,, 661 Transcript,,,, 666 Transcript,,,, 664 Transcript,,,, 658 Transcript,,,, 665 Transcript, Staff Notes,,,,,,,, 654 Transcript,,,, 656 Transcript,,,, 659 Transcript,,,, 662 Transcript,,,, 660 Transcript,,,, 663 Transcript,,,, by party Columbus Coalition for the Homeless, Ohio Democratic Party, The Northeast Ohio Coalition for the Homeless. (Gupta, Sandhya) (Entered: 04/13/2016)
677 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party re 675 Stipulation,,, of Errata and Notice of Filing Declaration Correcting Exhibit A to Declaration of Jocelyn Bucaro (Attachments: # 1 Exhibit Bucarao declaration correcting Exhibit A) (Gupta, Sandhya) (Entered: 04/15/2016)
678 Unopposed MOTION for Extension of Time New date requested 4/28/2016. and 5/5/2016 for proposed findings of fact and conclusions of law, and response briefs, respectively by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio

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04/20/2016 04/27/2016

Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Chandra, Subodh) (Entered: 04/19/2016)
679 SCHEDULING ORDER granting 678 Motion for Extension of Time. Signed by Judge Algenon L. Marbley on 4/20/2016. (cw) (Entered: 04/20/2016)
680 Transcript (Redacted) of Bench Trial Proceedings (Volume 3) held on 3/18/2016, before Judge Algenon L. Marbley. Court Reporter/Transcriber Denise N. Errett, Telephone number 614−719−3029. 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.

04/27/2016

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 5/18/2016. Redacted Transcript Deadline set for 5/31/2016. Release of Transcript Restriction set for 7/26/2016. (er) (Entered: 04/27/2016)
681 Transcript (Redacted) of Bench Trial Proceedings (Volume 4) held on 3/21/2016, before Judge Algenon L. Marbley. Court Reporter/Transcriber Denise N. Errett, Telephone number 614−719−3029. 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.

04/27/2016

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 5/18/2016. Redacted Transcript Deadline set for 5/31/2016. Release of Transcript Restriction set for 7/26/2016. (er) (Entered: 04/27/2016)
682 Transcript (Redacted) of Bench Trial Proceedings (Volume 6) held on 3/23/2016, before Judge Algenon L. Marbley. Court Reporter/Transcriber Denise N. Errett, Telephone number 614−719−3029. 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.

04/27/2016

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 5/18/2016. Redacted Transcript Deadline set for 5/31/2016. Release of Transcript Restriction set for 7/26/2016. (er) (Entered: 04/27/2016)
683 Transcript (Redacted) of Bench Trial Proceedings (Volume 7) held on 3/24/2016, before Judge Algenon L. Marbley. Court Reporter/Transcriber Denise N. Errett, Telephone number 614−719−3029. 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

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proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms − Electronic Availability of Transcripts). Please read this policy carefully.

04/27/2016

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 5/18/2016. Redacted Transcript Deadline set for 5/31/2016. Release of Transcript Restriction set for 7/26/2016. (er) (Entered: 04/27/2016)
684 Transcript (Redacted) of Bench Trial Proceedings (Volume 9) held on 3/28/2016, before Judge Algenon L. Marbley. Court Reporter/Transcriber Denise N. Errett, Telephone number 614−719−3026. 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.

04/27/2016

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 5/18/2016. Redacted Transcript Deadline set for 5/31/2016. Release of Transcript Restriction set for 7/26/2016. (er) (Entered: 04/27/2016)
685 Transcript (Redacted) of Bench Trial Proceedings (Volume 10) held on 3/29/2016, before Judge Algenon L. Marbley. Court Reporter/Transcriber Denise N. Errett, Telephone number 614−719−3029. 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.

04/28/2016 04/28/2016
05/05/2016 05/05/2016 05/20/2016

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 5/18/2016. Redacted Transcript Deadline set for 5/31/2016. Release of Transcript Restriction set for 7/26/2016. (er) (Entered: 04/27/2016)
686 Proposed Findings of Fact by Defendant Jon Husted, Intervenor State Of Ohio. (Attachments: # 1 Appendix A, # 2 Appendix B, # 3 Appendix C, # 4 Appendix D, # 5 Appendix E, # 6 Appendix F, # 7 Appendix G) (Richardson, Ryan) (Entered: 04/28/2016)
687 Proposed Findings of Fact by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Attachments: # 1 Appendix List of Appendices, # 2 Appendix Table A, # 3 Appendix Table B, # 4 Appendix Table C, # 5 Appendix Table D, # 6 Appendix Table E, # 7 Appendix Table F, # 8 Appendix Table G, # 9 Appendix Table H, # 10 Text of Proposed Order) (Chandra, Subodh) (Entered: 04/28/2016)
688 Reply Brief of Defendants by Defendant Jon Husted, Intervenor State Of Ohio. (Attachments: # 1 Appendix H) (Richardson, Ryan) (Entered: 05/05/2016)
689 TRIAL BRIEF (Post−trial brief in response to Defendants' proposed findings of fact and conclusions of lawDoc. 686) by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Attachments: # 1 Text of Proposed Order) (Chandra, Subodh) (Entered: 05/05/2016)
690 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party re 687 Proposed Findings of Fact, of Errata (Chandra, Subodh) (Entered: 05/20/2016)

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691 FINAL JUDGMENT: Findings of Fact and Conclusions of Law. Signed by Judge Algenon L. Marbley on 6/7/2016. (cw) (Entered: 06/07/2016)
692 ORDER denying as moot 562 Motion to Quash; denying as moot 673 Motion to File Document Under Seal. Signed by Judge Algenon L. Marbley on 6/7/2016. (cw) (Entered: 06/07/2016)
693 NOTICE OF APPEAL as to 691 Judgment by Defendant Jon Husted, Intervenor State Of Ohio. Filing fee $ 505, receipt number 0648−5528351. (Richardson, Ryan) (Entered: 06/08/2016)
694 MOTION to Stay Pending Appeal by Defendant Jon Husted, Intervenor State Of Ohio. Responses due by 7/5/2016 (Richardson, Ryan) (Entered: 06/08/2016)
695 ORDER SETTING A TELEPHONIC STATUS CONFERENCE for today, 6/9/2016 at 10:00 AM before Judge Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 6/9/2016. (cw) (Entered: 06/09/2016)
696 ORDER granting 694 Motion to Stay enforcement of the Court's Final Judgment as to the June and August 2016 elections pending appeal. GRANTING Defendants motion to withdraw his motion pending appeal, without prejudice to refiling should the Sixth Circuit decline to expedite Defendants appeal, and without prejudice as to Plaintiffs opposition of such a motion. Signed by Judge Algenon L. Marbley on 6/9/2016. (cw) (Entered: 06/09/2016)
USCA Case Number 16−3603 for 693 Notice of Appeal filed by Jon Husted, State Of Ohio. Case Manager − Laura A. Jones. (sct) (Entered: 06/14/2016)
697 NOTICE OF CROSS APPEAL as to 691 Judgment by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. Filing fee $ 505, receipt number 0648−5546982. (Chandra, Subodh) (Entered: 06/22/2016)
USCA Case Number 16−3691 for 697 Notice of Cross Appeal, filed by Ohio Democratic Party, Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless. Case Manager − Laura A. Jones. (sct) (Entered: 06/23/2016)
698 NOTICE by Defendant Jon Husted, Intervenor State Of Ohio Joint Notice of Filing of Trial Exhibits (Attachments: # 1 Exhibit D−001 Not Admitted at Trial, # 2 Exhibit D−002 2015 Election Official Manual, # 3 Exhibit D−003 SOS Directive 2015−23, # 4 Exhibit D−004 Substitute S.B. 205−Ohio 2014, # 5 Exhibit D−005 Substitute S.B. 216−Ohio 2014, # 6 Exhibit D−006 Substitute H.B. 234−Ohio 2005, # 7 Exhibit D−007 Am. HB 3−Ohio 2006, # 8 Exhibit D−008 Initial Exp Rpt−M.V. Hood III, # 9 Exhibit D−009 C.V. of M.V. Hood III, # 10 Exhibit D−010 Rebuttal Exp. Rpt−M.V. Hood III, # 11 Exhibit D−011 Rebuttal Exp. Rpt of N. McCarty, # 12 Exhibit D−012 C.V. of Nolan McCarty, # 13 Exhibit D−013 Provisional Ballot Statistics−11.4.2008, # 14 Exhibit D−014 Provisional Ballot Statistics−11.2.2010, # 15 Exhibit D−015 Provisional Ballot Report−11.6.2012, # 16 Exhibit D−016 Provisional Ballot Report−11.4.2014, # 17 Exhibit D−017 Provisional Ballot Report−11.3.2015, # 18 Exhibit D−018 Absnt −Prvsnl Ballot Statistics−11.4.2008, # 19 Exhibit D−019 Absentee Ballots−In−Country−11.2.2010, # 20 Exhibit D−020 Absentee Ballot Report−11.6.2012, # 21 Exhibit D−021 Absentee Ballot Report−11.4.2014, # 22 Exhibit D−022 Absentee Supplemental Report−11.4.2014, # 23 Exhibit D−023 Absentee Ballot Report−11.3.2015, # 24 Exhibit D−024 Absentee Supplemental Rpt−11.3.2015, # 25 Exhibit D−025 EAC EAV Survey−2014, # 26 Exhibit D−026 Not admitted at trial, # 27 Exhibit D−027 Not admitted at trial, # 28 Exhibit D−028 Not admitted at trial, # 29 Exhibit D−029 Not admitted at trial, # 30 Exhibit D−030 Not admitted at trial, # 31 Exhibit D−031 Not admitted at trial, # 32 Exhibit D−032 Gen. Elec. Early Vtng Calendar−2016, # 33 Exhibit D−033 NAACP v. Husted Settlement, # 34 Exhibit D−034 SOS Directive 2010−68, # 35 Exhibit D−035 SOS Directive 2014−15, # 36 Exhibit D−036 SOS Directive 2014−27, # 37 Exhibit D−037 Bauer−McTigue Ltr to SoS−7.10.2014, # 38 Exhibit D−038 Voter Reg−Info Update Form, # 39 Exhibit D−039 Voter Registration Form −2003, # 40 Exhibit D−040 Voter Registration Form −2006, # 41 Exhibit D−041 Voter Registration Form−2008, # 42 Exhibit D−042 Voter Registration Form −2012, # 43 Exhibit D−043 Form No. 11−A App.−Absnt Vtrs Ballot, # 44 Exhibit D−044 Form 11−A, App.−Absnt Vtrs Ballot

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−06.06, # 45 Exhibit D−045 Form 11−A, App. Absnt Vtrs Ballot −08.08), # 46 Exhibit D−046 Form 11−A, App. Absnt Vtrs Ballot−06.10, # 47 Exhibit D−047 Form 11−A, App. Absnt Vtrs Ballot−01.12, # 48 Exhibit D−048 Form 11−S, Absent Voters Ballot ID Env−03.15, # 49 Exhibit D−049 Form 12−A, ID Env. Stmt of Voter−06.14, # 50 Exhibit D−050 Form 12−A, ID Env. Stmt of Voter−06.06, # 51 Exhibit D−051 Form 12−A, ID Env. Stmt of Voter−08.08, # 52 Exhibit D−052 Form 12−A, ID Env. Stmt of Voter−01.10, # 53 Exhibit D−053 Form 12−A, ID Env. Stmt of Vote−07.12, # 54 Exhibit D−054 Duplicate Placeholder −see Exh. D−48, # 55 Exhibit D−055 Form 12−B, Prov. Ballot Affirmation−6.3.2014, # 56 Exhibit D−056 Form 12−B, Prov. Ballot Affirmation−06.06, # 57 Exhibit D−057 Form 12−B, Prov. Ballot Affirmation−07.08, # 58 Exhibit D−058 Form 12−B, Prov. Ballot Affirmation.1−12, # 59 Exhibit D−059 Form 12−B, Prov. Vtr Precinct Verification Form−06.14, # 60 Exhibit D−060 Form 12−H, Prov. Ballot Notice−2016 Primary, # 61 Exhibit D−061 Form 12−H, Prov. Ballot Notice−2014 Gen. Eltn, # 62 Exhibit D−062 OAEO Rpt−Rec for Absnt Vtg Reform−03.13, # 63 Exhibit D−063 OHDems Twitter Post−02.16,16, # 64 Exhibit D−064 SB 205, Legislature Committee Agendas, # 65 Exhibit D−065 SB 216 Legislature Committee Agendas, # 66 Exhibit D−066 NEOCH webpages, # 67 Exhibit D−067 Form 12−B, Prov. Ballot Affirmation−6.3.14, # 68 Exhibit D−068 Carrol Cnty Provs Group H−redacted, # 69 Exhibit D−069 Carroll Cnty BOE Meeting Minutes−11.18.15, # 70 Exhibit D−070 Carroll Cnty Prov. Ballots−Rejected Group A−redacted, # 71 Exhibit D−071 Carroll County VoterFind [Leary], # 72 Exhibit D−072 Carroll County VoterFind [Noble], # 73 Exhibit D−073 Carroll County VoterFind [Huggins], # 74 Exhibit D−074 Carroll County VoterFind [Owens], # 75 Exhibit D−075 Carroll County VoterFind [Spahr], # 76 Exhibit D−076 Carroll County VoterFind [Hawkins], # 77 Exhibit D−077 Carroll County VoterFind [Evans], # 78 Exhibit D−078 Carroll County VoterFind [Haun], # 79 Exhibit D−079 Carroll County VoterFind [Kirkpatrick], # 80 Exhibit D−080 Paulding Cnty BOE Meeting Minutes−11.17.15, # 81 Exhibit D−081 Harrison Cnty Prov Listing−11.4.14, # 82 Exhibit D−082 Harrison Cnty Prov Blt Afrm and VtrFnd−Campbell, # 83 Exhibit D−083 Harrison Cnty Prov Blt Afrm and VtrFnd−Butler, # 84 Exhibit D−084 Harrison Cnty Prov Listing−11.3.14, # 85 Exhibit D−085 Harrison Cnty Prov Blt Afrm and VtrFnd−C.Young, # 86 Exhibit D−086 Harrison Cnty Prov Blt Afrm and VtrFnd−S.Young, # 87 Exhibit D−087 Adams Cnty Prov Blt Afrm−Chamblin, # 88 Exhibit D−088 Fayette County Prov. Listing−11.4.2014, # 89 Exhibit D−089 Fayette County VoterFind−Leisure, # 90 Exhibit D−090 Fayette Cnty Prov Blt Afrm and VtrFnd−Schnees, # 91 Exhibit D−091 Fayette County Prov. Listing−11.3.16, # 92 Exhibit D−092 Fayette County VoterFind−Wheeler, # 93 Exhibit D−093 Fayette County−Danielle Trende, # 94 Exhibit D−094 Allen County VoterFind, # 95 Exhibit D−095 SB 216 Interested Prty Tstmny OEAO−Ockerman, # 96 Exhibit D−096 SB 205 Interested Pry Tstmny OAEO−Herron, # 97 Exhibit D−097 SB 205 Proponent Tstmny Delaware Cnty BOE−Cuckler, # 98 Exhibit D−098 SB 205 Sponsor Tstmny Sen. Coley−10.16.13, # 99 Exhibit D−099 SB 205 Sponsor Tstmny Sen.Coley−11.19.13, # 100 Exhibit D−100 SB 216 Interested Party Tstmny OAEO−Terry, # 101 Exhibit D−101 SB 216 Sponsor Tstmny Sen. Seitz−11.6.13, # 102 Exhibit D−102 SB 216 Sponsor Tstmny Sen. Seitz−1.14.14, # 103 Exhibit D−103 OAEO R&R for Absentee Voting Reform, # 104 Exhibit D−104 SB 205 Sponsor Tstmny Coley−11.19.13, # 105 Exhibit D−105 Precinct Election Official Manual−3.15.2016, # 106 Exhibit D−106 SOS Directive 2012−54, # 107 Exhibit D−107 SOS Directive 2016−03, # 108 Exhibit D−108 U.S. EAC 2012 EAV Survey) (Richardson, Ryan) (Entered: 06/30/2016)
699 NOTICE by Defendant Jon Husted, Intervenor State Of Ohio of Filing of Transcript (Attachments: # 1 Exhibit Transcript of Final Pre−Trial Proceedings (2016 03 14)) (Richardson, Ryan) (Entered: 07/01/2016)
700 MOTION to File Document Under Seal /Plaintiffs' Motion for Leave to File Admitted Trial Exhibits With Confidential Information Under Seal by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. Responses due by 8/1/2016 (Attachments: # 1 Text of Proposed Order) (Gentry, Caroline) (Entered: 07/06/2016)
701 Unopposed MOTION for Extension of Time New date requested 10/27/2016. to extend deadline to file Attorneys'−Fees Motion Related to Final Judgment on Second Amended Complaint (Doc. #691) to 45 days after the expedited appeal is resolved, MOTION for Extension of Time to File New date requested 10/27/2016. ( Responses due by 8/1/2016) by Plaintiffs Columbus Coalition for the Homeless, The Northeast

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07/12/2016 07/12/2016 07/12/2016

Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Chandra, Subodh) (Entered: 07/08/2016)
702 ORDER granting 700 Motion to File Document Under Seal. Signed by Judge Algenon L. Marbley on 07/11/2016. (cw) (Entered: 07/11/2016)
703 ORDER granting 701 Motion for Extension of Time. Plaintiffs have until 45 days after the Sixth Circuit issues any mandate on appeal to file their motion for attorneys' fees. Signed by Judge Algenon L. Marbley on 7/11/2016. (cw) (Entered: 07/11/2016)
704 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Notice of Filing of Plaintiffs' Trial Exhibits 2 Thru 28 (Attachments: # 1 Exhibit Exhibits 2 − 14, # 2 Exhibit Exhibits 15−22, # 3 Exhibit Exhibits 23−28) (Gentry, Caroline) (Entered: 07/12/2016)
706 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Notice of Filing of Plaintiffs' Trial Exhibits 114 Thru 119 (Attachments: # 1 Exhibit Exhibits 114−119) (Gentry, Caroline) (Entered: 07/12/2016)
708 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Notice of Filing of Plaintiffs' Trial Exhibits 170 Thru 177 (Attachments: # 1 Exhibit Exhibits 170−177) (Gentry, Caroline) (Entered: 07/12/2016)
710 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Notice of Filing of Plaintiffs' Trial Exhibits 202 thru 205 (Attachments: # 1 Exhibit Exhibits 202−205) (Gentry, Caroline) (Entered: 07/12/2016)
712 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Notice of Filing of Plaintiffs' Trial Exhibits 258 Thru 261 (Attachments: # 1 Exhibit Exhibits 258−261) (Gentry, Caroline) (Entered: 07/12/2016)
714 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Notice of Filing of Plaintiffs' Trial Exhibits 291 Thru 296 (Attachments: # 1 Exhibit Exhibits 291−296) (Gentry, Caroline) (Entered: 07/12/2016)
716 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Notice of Filing of Plaintiffs' Trial Exhibits 382 thru 383 (Attachments: # 1 Exhibit Exhibits 382−383) (Gentry, Caroline) (Entered: 07/12/2016)
718 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Notice of Filing of Plaintiffs' Trial Exhibits 442 Thru 465 (Attachments: # 1 Exhibit Exhibits 442−455, # 2 Exhibit Exhibits 456−460, # 3 Exhibit Exhibits 461−462, # 4 Exhibit Exhibit 463 (Part 1), # 5 Exhibit Exhibit 463 (Part 2), # 6 Exhibit Exhibit 464, # 7 Exhibit Exhibit 465) (Gentry, Caroline) (Entered: 07/12/2016)
719 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Notice of Filing of Plaintiffs' Trial Exhibits 466 Thru 479 (Attachments: # 1 Exhibit Exhibits 466−471, # 2 Exhibit Exhibits 472−479) (Gentry, Caroline) (Entered: 07/12/2016)
721 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Notice of Filing of Plaintiffs' Trial Exhibits 605 Thru 608 (Attachments: # 1 Exhibit Exhibits 605−608) (Gentry, Caroline) (Entered: 07/12/2016)
723 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Notice of Filing of Plaintiffs' Trial Exhibits 786 Thru 796 (Attachments: # 1 Exhibit Exhibits 786−796) (Gentry, Caroline) (Entered: 07/12/2016)

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726 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Notice of Filing of Plaintiffs' Trial Exhibits 973 Thru 974 (Attachments: # 1 Exhibit Exhibits 973−974) (Gentry, Caroline) (Entered: 07/12/2016)
729 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Notice of Filing of Plaintiffs' Trial Exhibits 986 Thru 991, 997 Thru 1009, 1017 Thru 1022, 1038 Thru 1042 and 1044 Thru 1055 (Attachments: # 1 Exhibit Exhibits 986−991, # 2 Exhibit Exhibits 997− 1003, # 3 Exhibit Exhibits 1004−1009, # 4 Exhibit Exhibits 1017−1020, # 5 Exhibit Exhibits 1021−1022, # 6 Exhibit Exhibits 1038−1042, # 7 Exhibit Exhibits 1044−1049, # 8 Exhibit Exhibits 1050−1055) (Gentry, Caroline) (Entered: 07/12/2016)
730 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Notice of Filing of Plaintiffs' Trial Exhibit 1056 (Attachments: # 1 Exhibit Exhibit 1056 (Part 1), # 2 Exhibit Exhibit 1056 (Part 2), # 3 Exhibit Exhibit 1056 (Part 3), # 4 Exhibit Exhibit 1056 (Part 4)) (Gentry, Caroline) (Entered: 07/12/2016)
731 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Notice of Filing of Plaintiffs' Trial Exhibits 1057 Thru 1084 (Attachments: # 1 Exhibit Exhibits 1057−1061, # 2 Exhibit Exhibits 1062−1067, # 3 Exhibit Exhibits 1068−1073, # 4 Exhibit Exhibit 1074, # 5 Exhibit Exhibit 1075, # 6 Exhibit Exhibits 1076−1084) (Gentry, Caroline) (Entered: 07/12/2016)
733 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Notice of Filing of Plaintiffs' Trial Exhibits 1141 Thru 1156 (Attachments: # 1 Exhibit Exhibits 1141−1150, # 2 Exhibit Exhibits 1151−1156) (Gentry, Caroline) (Entered: 07/12/2016)
735 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Notice of Filing of Plaintiffs' Trial Exhibits 1176 thru 1195 (Attachments: # 1 Exhibit Exhibits 1176−1187, # 2 Exhibit Exhibits 1188−1192, # 3 Exhibit Exhibits 1193−1195) (Gentry, Caroline) (Entered: 07/12/2016)
736 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Notice of Filing of Plaintiffs' Trial Exhibits 1207 Thru 1334 (Attachments: # 1 Exhibit Exhibits 1207−1218, # 2 Exhibit Exhibits 1219−1245, # 3 Exhibit Exhibits 1246−1260, # 4 Exhibit Exhibits 1261−1290, # 5 Exhibit Exhibits 1291−1300, # 6 Exhibit Exhibits 1301−1305, # 7 Exhibit Exhibits 1306−1334) (Gentry, Caroline) (Entered: 07/12/2016)
737 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Notice of Filing of Plaintiffs' Trial Exhibits 1335 Thru 1508 (Attachments: # 1 Exhibit Exhibits 1335−1352, # 2 Exhibit Exhibits 1353−1375, # 3 Exhibit Exhibits 1376−1410, # 4 Exhibit Exhibits 1411−1420, # 5 Exhibit Exhibits 1421−1430, # 6 Exhibit Exhibits 1431−1460, # 7 Exhibit Exhibits 1461−1490, # 8 Exhibit Exhibits 1491−1508) (Gentry, Caroline) (Entered: 07/12/2016)
738 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Notice of Filing of Plaintiffs' Trial Exhibits 1509 Thru 1567 (Attachments: # 1 Exhibit Exhibit 1509, # 2 Exhibit Exhibit 1510 (Part 1), # 3 Exhibit Exhibit 1510 (Part 2), # 4 Exhibit Exhibits 1511−1513, # 5 Exhibit Exhibits 1514−1530, # 6 Exhibit Exhibits 1531−1558, # 7 Exhibit Exhibits 1559−1567) (Gentry, Caroline) (Entered: 07/12/2016)
740 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Notice of Filing of Plaintiffs' Trial Exhibits 1583 Thru 1634, 1637 Thru 1640, 1642 Thru 1722 and 1728 Thru 1731 (Attachments: # 1 Exhibit Exhibits 1583−1610, # 2 Exhibit

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07/12/2016 07/12/2016 07/12/2016 07/12/2016 07/12/2016 07/12/2016 07/12/2016 07/12/2016 07/12/2016 07/12/2016 07/12/2016 07/12/2016 07/12/2016

Exhibits 1611−1634, # 3 Exhibit Exhibits 1637−1640, # 4 Exhibit Exhibits 1642−1668, # 5 Exhibit Exhibits 1669−1671, # 6 Exhibit Exhibit 1672 (Part 1), # 7 Exhibit Exhibit 1672 (Part 2), # 8 Exhibit Exhibits 1673−1685, # 9 Exhibit Exhibits 1686−1696, # 10 Exhibit Exhibits 1697−1722, # 11 Exhibit Exhibits 1728−1731) (Gentry, Caroline) (Entered: 07/12/2016)
745 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Notice of Filing of Plaintiffs' Trial Exhibits 2365 Thru 2371 (Attachments: # 1 Exhibit Exhibits 2365−2371) (Gentry, Caroline) (Entered: 07/12/2016)
748 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Notice of Filnig of Plaintiffs' Trial Exhibits 2651 Thru 2652 (Attachments: # 1 Exhibit Exhibits 2651−2652) (Gentry, Caroline) (Entered: 07/12/2016)
751 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Notice of Filing of Plaintiffs' Trial Exhibit 3027 (Attachments: # 1 Exhibit Exhibit 3027) (Gentry, Caroline) (Entered: 07/12/2016)
755 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Notice of Filing of Plaintiffs' Trial Exhibits 3451 Thru 3452 (Attachments: # 1 Exhibit Exhibits 3451−3452) (Gentry, Caroline) (Entered: 07/12/2016)
760 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Notice of Filing of Plaintiffs' Trial Exhibit 3918 (Attachments: # 1 Exhibit Exhibit 3918) (Gentry, Caroline) (Entered: 07/12/2016)
762 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Notice of Filing of Plaintiffs' Trial Exhibit 3923 (Attachments: # 1 Exhibit Exhibit 3923) (Gentry, Caroline) (Entered: 07/12/2016)
764 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Notice of Filing of Plaintiffs' Trial Exhibits 3925 Thru 3930 (Attachments: # 1 Exhibit Exhibites 3925−3930) (Gentry, Caroline) (Entered: 07/12/2016)
766 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Notice of Filing of Plaintiffs' Trial Exhibit 3943 (Attachments: # 1 Exhibit Exhibit 3943) (Gentry, Caroline) (Entered: 07/12/2016)
768 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Notice of Filing of Plaintiffs' Trial Exhibit 3974 (Attachments: # 1 Exhibit Exhibit 3974) (Gentry, Caroline) (Entered: 07/12/2016)
770 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Notice of Filing of Plaintiffs' Trial Exhibits 3977 and 7000−7012 (Attachments: # 1 Exhibit Exhibits 3977 and 7000−7012) (Gentry, Caroline) (Entered: 07/12/2016)
772 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Notice of Filing of Plaintiffs' Trial Exhibit 7015 (Attachments: # 1 Exhibit Exhibit 7015) (Gentry, Caroline) (Entered: 07/12/2016)
774 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Notice of Filing of Plaintiffs' Trial Exhibit 7024 (Attachments: # 1 Exhibit Exhibit 7024) (Gentry, Caroline) (Entered: 07/12/2016)
776 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Notice of

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07/12/2016 07/12/2016 07/12/2016 08/01/2016
08/10/2016 08/11/2016 08/16/2016 08/17/2016 08/18/2016 08/24/2016
09/02/2016

Filing of Plaintiffs' Trial Exhibit 7034 (Attachments: # 1 Exhibit Exhibit 7034) (Gentry, Caroline) (Entered: 07/12/2016)
778 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Notice of Filing of Plaintiffs' Trial Exhibits 7036 Thru 7038 (Attachments: # 1 Exhibit Exhibits 7036−7038) (Gentry, Caroline) (Entered: 07/12/2016)
780 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Notice of Filing of Plaintiffs' Trial Exhibit 7043 (Attachments: # 1 Exhibit Exhibit 7043) (Gentry, Caroline) (Entered: 07/12/2016)
782 NOTICE by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party /Notice of Filing of Plaintiffs' Trial Exhibits 7045 Thru 7048 (Attachments: # 1 Exhibit Exhibits 7045−7048) (Gentry, Caroline) (Entered: 07/12/2016)
783 USCA OPINION AND JUDGMENT as to 446 Notice of Cross Appeal, filed by Service Employees International Union, Local 1199, Ohio Democratic Party, Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, 445 Notice of Appeal filed by Jon Husted, State Of Ohio, 427 Notice of Appeal filed by Jon Husted, State Of Ohio, 430 Notice of Appeal, filed by Service Employees International Union, Local 1199, Ohio Democratic Party, Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless. The judgment of the district court is AFFIRMED as to the hours awarded, is VACATED as to the hourly rates of the Altshuler Berzon attorneys, and REMANDED for detailed findings consistent with this opinion. As to the cross−appeal, Coulter is abrogated to the extent that it holds that fees for seeking fees are limited to 3% and 5% of the hours in the merit award, and the district court's award of fees for fees is VACATED and REMANDED for findings consistent with this holding. Note: Mandate to issue. (sct) (Entered: 08/02/2016)
784 MOTION to Stay Partial Motion to Stay Pending Appeal by Defendant Jon Husted, Intervenor State Of Ohio. Responses due by 9/6/2016 (Attachments: # 1 Exhibit Kuruc Declaration) (Pierce, Sarah) (Entered: 08/10/2016)
785 ORDER setting a briefing schedule. Signed by Judge Algenon L. Marbley on 8/11/16. (kn) (Entered: 08/11/2016)
786 ORDER − Plaintiffs are ordered to file an opposition brief (if they still so oppose) on or before 8/17/2016 re 784 Motion to Stay filed by Jon Husted, State Of Ohio. Signed by Judge Algenon L. Marbley on 8/16/2016. (cw) (Entered: 08/16/2016)
787 RESPONSE to Motion re 784 MOTION to Stay Partial Motion to Stay Pending Appeal filed by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Chandra, Subodh) (Entered: 08/17/2016)
788 ORDER granting 784 Motion to Stay. The Court GRANTS Defendants' motion, staying enforcement of the Court's injunction as ordered in its June 7, 2016 Final Judgment (Doc. 691). The Court thus GRANTS in full Defendants' Partial Motion to Stay Pending Appeal (Doc. 784). Signed by Judge Algenon L. Marbley on 8/18/2016. (cw) (Entered: 08/18/2016)
789 MANDATE of USCA as to 446 Notice of Cross Appeal, filed by Service Employees International Union, Local 1199, Ohio Democratic Party, Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, 445 Notice of Appeal filed by Jon Husted, State Of Ohio, 427 Notice of Appeal filed by Jon Husted, State Of Ohio, 430 Notice of Appeal, filed by Service Employees International Union, Local 1199, Ohio Democratic Party, Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless (sct) (Entered: 08/26/2016)
790 MOTION for Extension of Time to File New date requested 10/7/2016. by Plaintiffs Columbus Coalition for the Homeless, Service Employees International Union, Local 1199, The Northeast Ohio Coalition for the Homeless, Kyle Wangler, James Wise. Responses due by 9/26/2016 (Berzon, Stephen) (Entered: 09/02/2016)

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09/06/2016 09/13/2016
10/06/2016 10/07/2016 10/12/2016 10/13/2016 10/13/2016 10/14/2016 10/14/2016 11/01/2016
11/04/2016 12/05/2016
12/21/2016 12/27/2016 01/27/2017

791 ORDER granting 790 Motion for Extension of Time to File. Signed by Judge Algenon L. Marbley on 9/6/2016. (cw) (Entered: 09/06/2016)
792 USCA OPINION AND JUDGMENT as to 693 Notice of Appeal & 697 Notice of Cross Appeal: The Sixth Circuit REVERSES the judgment of the District Court on the remaining undue−burden claims and the VRA Section 2 claims. We AFFIRM the entry of judgment for Ohio on all other claims. Note: Mandate to issue. (er) (Entered: 09/15/2016)
793 Joint MOTION for Extension of Time New date requested 10/19/2016. to File Stipulated Judgment Entry regarding Fees by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Chandra, Subodh) (Entered: 10/06/2016)
794 STIPULATION Stipulated Judgment Entry Regarding Settlement of Attorneys' Fees and Costs by Defendant Jon Husted, Intervenor State Of Ohio. (Voigt, Steven) (Entered: 10/07/2016)
795 JUDGMENT entered awarding attorneys fees and costs to the parties in the amounts listed in the Order; denying as moot 793 Motion for Extension of Time. Signed by Judge Algenon L. Marbley on 10/12/2016. (cw). (Entered: 10/12/2016)
796 ORDER of USCA as to 693 Notice of Appeal & 697 Notice of Cross Appeal: The petition for rehearing en banc is denied. Judge Keith would grant rehearing for the reasons stated in his dissent. Note: No Mandate details noted. (er) (Entered: 10/19/2016)
797 Appeal Remark re 693 Notice of Appeal & 697 Notice of Cross Appeal: This is a copy of the corrected page from published order, see 796 . Also enclosed is a copy of the order bearing the correction in print. (er) (Entered: 10/19/2016)
798 MANDATE of USCA as to 693 Notice of Appeal & 697 Notice of Cross Appeal: No costs taxed. (er) (Entered: 10/19/2016)
799 ORDER of USCA as to 693 Notice of Appeal & 697 Notice of Cross Appeal: Plaintiffs' motion to stay the mandate is DENIED. Note: No Mandate details noted. (er) (Entered: 10/19/2016)
800 Unopposed MOTION for Extension of Time to File New date requested 6/1/2017. to extend deadline to file attorneys'−fees motion related to final judgment on 2nd amended complaint to 45 days after U.S. Supreme Court's Final Disposition by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. Responses due by 11/25/2016 (Gupta, Sandhya) (Entered: 11/01/2016)
801 ORDER granting 800 Motion for Extension of Time to File Attorneys' Fees Motion Related to Final Judgment on Second Amended Complaint. Signed by Judge Algenon L. Marbley on 11/4/2016. (cw) (Entered: 11/04/2016)
802 MOTION To Extend Consent Decree (Doc. #210, #383) re 383 Order on Motion for Miscellaneous Relief, 210 Consent Judgment by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Attachments: # 1 Exhibit Declaration of Brian Davis, # 2 Exhibit Declaration fo Donald J. McTigue, # 3 Exhibit Declaration of Ray Oldham) (Chandra, Subodh) (Entered: 12/05/2016)
803 Joint MOTION for Extension of Time New date requested 3/31/2017. Joint Motion to Extend the Briefing Schedule Regarding Plaintiffs' Motion to Extend the Consent Decree (Doc. 802) by Defendant Jon Husted, Intervenor State Of Ohio. (Richardson, Ryan) (Entered: 12/21/2016)
804 ORDER granting 803 Joint MOTION for Extension of Time Regarding 802 Plaintiffs' Motion to Extend the Consent Decree. Signed by Judge Algenon L. Marbley on 12/27/2016. (er) Modified relationship of docs associated with this entry on 2/15/2017 (er). (Entered: 12/27/2016)
805 RESPONSE in Opposition re 802 MOTION To Extend Consent Decree (Doc. #210, #383) re 383 Order on Motion for Miscellaneous Relief, 210 Consent Judgment filed by Defendant Jon Husted, Intervenor State Of Ohio. (Attachments: # 1 Exhibit 1 Kurur

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02/09/2017 02/16/2017 02/21/2017
03/13/2017 03/14/2017 04/26/2017 04/27/2017 04/28/2017 06/08/2017

Declaration, # 2 Exhibit Kuruc Decl−Attachment A−G, # 3 Exhibit Kuruc Decl−Attachment H, part 1, # 4 Exhibit Kuruc Decl−Attachment H, part 2, # 5 Exhibit Kuruc Decl−Attachment I, # 6 Exhibit Kuruc Decl−Attachment J, # 7 Exhibit Kuruc Decl−Attachment K, # 8 Exhibit Kuruc Decl−Attachment L, # 9 Exhibit 2 Damschroder Declaration, # 10 Exhibit 3 USCA/6th Cir., 16−3603/3691 Revised order denying en banc hearing, # 11 Exhibit 4 USCA/6th Cir. 16−3603/3691 Order denying Plaintiffs Motion to Stay Mandate) (Richardson, Ryan) (Entered: 01/27/2017)
806 Unopposed MOTION for Extension of Time New date requested 2/21/2017. to File Reply Brief One Day After Federal Holiday by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Gupta, Sandhya) (Entered: 02/09/2017)
807 ORDER granting 806 Motion for Extension of Time. Plaintiffs' reply brief is due on 2/21/2017. Signed by Judge Algenon L. Marbley on 2/16/2017 (cw). (Entered: 02/16/2017)
808 REPLY to Response to Motion re 802 MOTION To Extend Consent Decree (Doc. #210, #383) re 383 Order on Motion for Miscellaneous Relief, 210 Consent Judgment filed by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Attachments: # 1 Exhibit 1: Provisional Ballot Report, # 2 Exhibit 2: H.B. No. 41, # 3 Exhibit 3: Pelanda press release, # 4 Exhibit 4: Pelanda news report, # 5 Exhibit 5: Directive 2015−23, # 6 Exhibit 6: Brian Davis Declaration, # 7 Exhibit 7: Advisory 2011−05, # 8 Exhibit 8: ORC 3503.02 (2009), # 9 Exhibit 9: Butler County Response, # 10 Exhibit 10: Licking County Response, # 11 Exhibit 11: Preble County Response, # 12 Exhibit 12: Franklin County Response) (Chandra, Subodh) (Entered: 02/21/2017)
809 ORDER Setting Evidentiary Hearing on Motion 802 MOTION To Extend Consent Decree: Evidentiary Hearing set for 4/7/2017 at 1:30 PM in Courtroom 1 − Columbus before Judge Algenon L. Marbley. Consent Decree is temporarily extended to 4/30/2017. Signed by Judge Algenon L. Marbley on 3/13/2017. (cw) (Entered: 03/13/2017)
810 Notice from Supreme Court of the United States. The petition for a writ of certiorari was filed on 3/3/17 and placed on the docket on 3/6/17 as case number 16−1068. (pb) (Entered: 03/14/2017)
811 MOTION To Temporarily Extend Consent Decree Until Court Rules on Plaintiffs' December 5, 2016 Motion to Extend re 809 Order Setting Hearing on Motion, 802 MOTION To Extend Consent Decree (Doc. #210, #383) re 383 Order on Motion for Miscellaneous Relief, 210 Consent Judgment by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Chandra, Subodh) (Entered: 04/26/2017)
812 RESPONSE in Opposition re 811 MOTION To Temporarily Extend Consent Decree Until Court Rules on Plaintiffs' December 5, 2016 Motion to Extend re 809 Order Setting Hearing on Motion, 802 MOTION To Extend Consent Decree (Doc. #210, #383) re 383 Order on filed by Defendant Jon Husted, Intervenor State Of Ohio. (Richardson, Ryan) (Entered: 04/27/2017)
813 OPINION AND ORDER denying 802 Plaintiffs' Motion to Extend the Consent Decree. The Consent Decree will expire effective on the date of this Opinion and Order. Plaintiffs' Motion to Temporarily Extend the Consent Decree until Court Rules on Plaintiffs' 12/5/2016 811 Motion to Extend is DENIED as moot. Signed by Judge Algenon L. Marbley on 4/28/2017. (er) (Entered: 04/28/2017)
814 Transcript of Oral Argument Proceedings held on April 7, 2017, before Judge Algenon L. Marbley. Court Reporter/Transcriber Shawna J Evans, Telephone number 614−719−3316. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

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

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Electronic Availability of Transcripts). Please read this policy carefully.

06/22/2017 07/01/2017 07/20/2017 07/21/2017 09/27/2017 09/28/2017 12/18/2017 01/05/2018 01/08/2018
01/10/2018 01/17/2018
01/17/2018 03/08/2018 03/09/2018

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 6/29/2017. Redacted Transcript Deadline set for 7/10/2017. Release of Transcript Restriction set for 9/6/2017. (Evans, Shawna) (Entered: 06/08/2017)
815 Notice from Supreme Court of the United States. The petition for a writ of certiorari was denied on 6/19/17. (sct) (Entered: 06/23/2017)
816 ORDER REASSIGNING CASE. Case reassigned to Magistrate Judge Chelsey M. Vascura for all further proceedings. Magistrate Judge Terence P Kemp no longer assigned to case. Signed by Chief Judge Edmund A. Sargus on 6/30/17. (jcw) (Entered: 07/01/2017)
817 Unopposed MOTION for Extension of Time New date requested 10/10/2017. to File Motion for Attorneys' Fees by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Gupta, Sandhya) (Entered: 07/20/2017)
818 NOTATION ORDER granting 817 Motion for Extension of Time to file Motion for Attorney's Fees by 10/10/2017. By Magistrate Judge Chelsey M. Vascura on 7/21/2017. (agm) (Entered: 07/21/2017)
819 Joint MOTION To Adjust Briefing Schedule Regarding Attorneys' Fees and Cost by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Chandra, Subodh) (Entered: 09/27/2017)
820 NOTATION ORDER granting 819 Motion To Adjust Briefing Schedule Regarding Attorneys' Fees and Cost. Plaintiffs' Motion for Attorneys' Fees due by 1/12/2018; Defendant's response due by 2/19/2018. By Magistrate Judge Chelsey M. Vascura on 9/28/2017. (agm) (Entered: 09/28/2017)
821 Joint MOTION to be assigned to a Magistrate Judge for Mediation by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Chandra, Subodh) (Entered: 12/18/2017)
822 NOTICE of Substitution of Counsel − Steven T Voigt substituting for Ryan L. Richardson as to Defendant Jon Husted, Intervenor State Of Ohio. (Voigt, Steven) (Entered: 01/05/2018)
823 Joint MOTION to Suspend Briefing Schedule Regarding Attorneys' Fees and Costs Pending Fees Mediation re 821 Joint MOTION to be assigned to a Magistrate Judge for Mediation by Plaintiffs Columbus Coalition for the Homeless, The Northeast Ohio Coalition for the Homeless, Intervenor Plaintiff Ohio Democratic Party. (Chandra, Subodh) (Entered: 01/08/2018)
824 NOTATION ORDER granting 823 Motion to Suspend Briefing Schedule re 821 Joint MOTION to be assigned to a Magistrate Judge for Mediation. By Magistrate Judge Chelsey M. Vascura on 1/10/2018. (agm) (Entered: 01/10/2018)
826 ORDER granting the parties' 821 Joint Motion to be Assigned to a Magistrate Judge for Mediation. The parties must appear for a settlement conference on THURSDAY, MARCH 8, 2018, at 10:00 a.m., 85 Marconi Boulevard, Room 172, Columbus, Ohio, 43215, before Magistrate Judge Chelsey M. Vascura. Signed by Magistrate Judge Chelsey M. Vascura on 1/17/2018. (kpt) (Entered: 01/17/2018)
Minute Entry for proceedings held before Magistrate Judge Chelsey M. Vascura: Status Conference held on 1/17/2018. (agm) (Entered: 01/17/2018)
Minute Entry for proceedings held before Magistrate Judge Chelsey M. Vascura: Settlement Conference held on 3/8/2018. (agm) (Entered: 03/09/2018)
827 ORDER: A proposed Stipulated Judgment Entry will be filed within sixty days. Signed by Magistrate Judge Chelsey M. Vascura on 3/9/2018. (kpt) Modified text on 3/12/2018 (jlk). (Entered: 03/09/2018)

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03/27/2018 03/28/2018

828 STIPULATION Stipulated Judgment Entry Regarding Settlement of Attorneys' Fees and Costs by Defendant Jon Husted, Intervenor State Of Ohio. (Voigt, Steven) (Entered: 03/27/2018)
829 STIPULATED JUDGMENT ENTRY − The Court GRANTS Plaintiffs' attorneys' fees and costs. This Order resolves all fees and costs in this case. Signed by Judge Algenon L. Marbley on March 28, 2018. (jlk) (Entered: 03/28/2018)

 
 Northeast Ohio Coalition for Homeless v. Secretary of Ohio, 695 F.3d 563 (2012)

695 F.3d 563 United States Court of Appeals,
Sixth Circuit.
NORTHEAST OHIO COALITION FOR the HOMELESS; Service Employees International
Union, Local 1199, Plaintiffs–Appellees/Cross–Appellant, Kyle Wangler; Columbus Coalition for the
Homeless, Plaintiffs, Ohio Democratic Party, Intervenor,
v. SECRETARY OF State of OHIO, Defendant,
State of Ohio, Intervenor–Appellant/Cross–Appellee. Northeast Ohio Coalition for the Homeless, Service Employees International Union, Local
1199, Plaintiffs–Appellees, v.
Secretary of State of Ohio, Defendant–Appellant.
Nos. 11–3035, 11–3036, 11–3037. | Argued: April 20, 2012. | Decided and Filed: Aug. 30, 2012.
Synopsis Background: Following entry of consent decree in suit brought against Ohio Secretary of State, challenging Ohio’s voter identification laws, the United States District Court for the Southern District of Ohio, Algenon L. Marbley, J., 2010 WL 4939946, awarded attorney fees to plaintiffs, and parties cross-appealed.
Holdings: The Court of Appeals, Julia Smith Gibbons, Circuit Judge, held that:
[1] plaintiffs did not waive their right to petition for supplemental fees and costs under Civil Rights Attorney’s Fees Award Act, and
[2] district court did not abuse its discretion in capping at three percent the supplemental fee award under Civil Rights Attorney’s Fees Award Act.
Affirmed.
Karen Nelson Moore, Circuit Judge, filed concurring

opinion.

Attorneys and Law Firms

*565 ARGUED: Erick D. Gale, Office of the Ohio Attorney General, Columbus, Ohio, for Appellant/Cross–Appellee. L. Bradfield Hughes, Porter, Wright, Morris & Arthur LLP, Columbus, Ohio, for Appellees/Cross–Appellants. ON BRIEF: Erick D. Gale, Richard N. Coglianese, Office of the Ohio Attorney General, Columbus, Ohio, for Appellant/Cross–Appellee in cases 11–3035/3036 and Appellant in 11–3037. L. Bradfield Hughes, Porter, Wright, Morris & Arthur LLP, Columbus, Ohio, Caroline H. Gentry, Porter Wright Morris & Arthur LLP, Dayton, Ohio, Subodh Chandra, The Chandra Law Firm, LLC, Cleveland, Ohio, H. Ritchey Hollenbaugh, Carlile Patchen & Murphy LLP, Columbus, Ohio, for Appellees/Cross–Appellants in cases 11–3035/3036 and Appellees in 11–3037. Before: MOORE, GIBBONS, and ALARCÓN, Circuit Judges.*

*

The Honorable Arthur L. Alarcón, Senior Circuit Judge

of the United States Court of Appeals for the Ninth

Circuit, sitting by designation.

Opinion

GIBBONS, J., delivered the opinion of the court in which MOORE and *566 ALARCÓN, JJ., joined. MOORE, J. (p. 577), also delivered a separate concurring opinion.

OPINION
JULIA SMITH GIBBONS, Circuit Judge.
In 2006, Plaintiffs-appellees/Cross-appellants Northeast Ohio Coalition for the Homeless (“NEOCH”) and Service Employees International Union, Local 1199 (“SEIU”) brought an action under 42 U.S.C. § 1983 against then Ohio Secretary of State J. Kenneth Blackwell challenging several provisions of Ohio’s 2006 Voter ID law. The parties negotiated consent orders in 2006 and 2008. In
1

Northeast Ohio Coalition for Homeless v. Secretary of Ohio, 695 F.3d 563 (2012)

2009, NEOCH and SEIU filed a motion for attorneys’ fees with respect to the 2008 orders, which the district court granted. The Ohio Secretary of State appealed the fee and cost award, and the parties ultimately negotiated a consent decree signed by the district court in April 2010. In June 2010, the plaintiffs filed another motion for attorneys’ fees and costs, this time for work performed (1) regarding prior motions for attorneys’ fees submitted in the litigation, (2) during the appeal of the award of attorneys’ fees, and (3) negotiating the consent decree. The district court granted the motion in part, but because it found that the motion regarded a supplemental fee request, it reduced the fee award to three percent of the award granted in the main case pursuant to Coulter v. Tennessee, 805 F.2d 146 (6th Cir.1986).
On appeal, the State of Ohio and the Ohio Secretary of State argue that the 2010 consent decree was a settlement in full of all of the plaintiffs’ claims, thus waiving any subsequent claim for further attorneys’ fees. The plaintiffs cross-appeal, arguing that the district court erred in applying Coulter to limit their supplemental fee award. For the following reasons, we affirm.
I.
This appeal over an award of attorneys’ fees stems from litigation over Ohio’s voter identification laws, passed in 2006, which culminated in a consent decree entered into by the parties in 2010. Although the parties’ appeal and cross-appeal focus on the consent decree and the district court’s grant of the motion for attorneys’ fees filed after the consent decree was entered, the parties’ arguments are premised in part on an understanding of the factual and procedural background leading up to the consent decree.
In 2006, NEOCH and SEIU brought an action under 42 U.S.C. § 1983 against then Ohio Secretary of State J. Kenneth Blackwell in his official capacity seeking to have portions of the Ohio “new voter-identification laws” declared unconstitutional. On November 1, 2006, the parties entered into a consent order, which governed the November 2006 general election and provided specific guidance and clarification to County Boards of Elections regarding identification procedures. An enforcement order was entered on November 14, 2006, after it was discovered that some Board of Election employees failed to follow the provisions of the consent order.

On January 4, 2008, the plaintiffs filed a motion under 42 U.S.C. § 1988 and 28 U.S.C. §§ 1821 and 1920 for attorneys’ fees and costs which were incurred in relation to the November 2006 consent order and the November 2006 enforcement order. Over the defendants’1 opposition, on *567 September 30, 2008, the district court granted the plaintiffs’ motion for attorneys’ fees pending a hearing to determine a reasonable fee award.

1

“Defendants” refers to Jennifer Brunner, the then Ohio

Secretary of State and the State of Ohio, as

intervenor-defendant.

Prior to the November 2008 election, the plaintiffs sought leave to file a proposed supplemental complaint, citing concerns that the County Boards of Elections would continue to apply inconsistent standards to their evaluation of provisional ballots, and also requested a preliminary injunction to prevent the enforcement of the voter identification laws in the 2008 election. In order to settle the ongoing litigation, then Ohio Secretary of State Jennifer Brunner issued Directive 2008–101, which provided guidelines for Ohio’s “boards of election in processing and counting provisional ballots.” By agreement of the parties, the district court issued an order on October 24, 2008, which adopted the directive. The court also issued an additional order on October 27, 2008, which addressed the effect of poll worker error on the counting of provisional ballots and instructions regarding acceptable addresses for persons without a permanent addresses.
On January 20, 2009, the plaintiffs filed their second motion for attorneys’ fees and costs. The second motion requested fees and costs related to procuring the October 2008 orders as well as fees reasonably related to the orders. On July 28, 2009, the district court granted the second motion for attorneys’ fees and costs and also awarded reasonable attorneys’ fees and costs relating to the first motion for fees and costs. In total, the district court awarded $474,418.50 in attorneys’ fees and $29,995.61 in costs and expenses.
The State of Ohio, as intervenor-defendant, appealed the award of attorneys’ fees to this court. The parties subsequently began to work with the office of the circuit mediator in an effort to resolve the appeal.2 The district court approved and entered a consent decree on April 19, 2010. The parties included the following explanation of the decree in the preamble:
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Northeast Ohio Coalition for Homeless v. Secretary of Ohio, 695 F.3d 563 (2012)

2

Although the appeal was taken from the award of

attorneys’ fees, the mediation discussions and

subsequent negotiations of a consent decree included

efforts to resolve substantive issues raised in the

plaintiffs’ complaint and provide for injunctive relief.

The parties, desiring that this action be settled by an appropriate Consent Decree ... and without the burden of protracted litigation, agree to the jurisdiction of this Court over the parties and the subject matter of this action. Subject to this Court’s approval of this Decree, and subject to the continuing validity of this Decree if it or its terms are challenged in any other court, the parties waive a hearing and findings of fact and conclusions of law on all issues, and further agree to the entry of this Decree as final and binding among and between themselves as to the issues raised in the Plaintiffs’ Complaint and Supplemental Complaint, and the matters resolved in this Decree.
This Decree, being entered with the consent of the parties, shall in no way constitute an adjudication or finding on the merits of Case No. 2:06–CV–896, nor be construed as an admission by the Defendants of any wrongdoing or violation of any applicable federal or state law or regulation.
In resolution of this action, the parties hereby AGREE to, and the Court expressly APPROVES, ENTERS, and ORDERS, the following.... The consent decree provided for general injunctive relief, including (1) the adoption of Directive 2008–80 issued by the Ohio Secretary of State as an order of the district court, and (2) the agreement that the Secretary of State would instruct the *568 County Board of Elections to follow agreed-upon rules governing the casting and counting of provisional ballots for persons lacking identification other than a social security number. The consent decree further provided that the Secretary of State “shall issue a Directive to all Boards of Elections that sets forth the text of the injunctive relief described....” The consent decree also provided that it was to remain in effect until June 13, 2013, and that “[a]ny of the parties may file a motion with the Court to modify, extend or terminate this Decree for good cause shown.” Finally, the consent decree contained a “miscellaneous provision [ ]” where the parties agreed that within sixty days of the decree’s entry the Secretary of State “shall pay to counsel for Plaintiffs the attorneys’ fees that were previously awarded by this Court, as

follows: $321,942.15.51 [sic ] to Porter Wright Morris & Arthur LLP, $99,722.58 to Carlile Patchen & Murphy LLP, and $82,749.38 to The Chandra Law Firm, LLC.”
On June 3, 2010, the plaintiffs filed their third motion for attorneys’ fees and costs. The motion requested attorneys’ fees and costs for (1) briefing and arguing the prior fees motions, (2) opposing and settling the appeal of the district court decision granting the prior motions, and (3) “negotiating the April 19, 2010 Consent Decree which terminated th[e] litigation.” The requested fees and costs covered work the attorneys engaged in between January 2009 and April 2010.
The defendants opposed the third motion for attorneys’ fees and costs, arguing that the consent decree was final and binding as to the claims set forth in the complaint, and that as a result, the plaintiffs waived any opportunity to seek additional fees by entering into the consent decree. The defendants submitted affidavits from an attorney in the Secretary of State’s office and an attorney in the Ohio Attorney General’s Office who acted as client contact for the State of Ohio during the settlement negotiations to argue that “inclusion of a final and certain amount of attorneys’ fees was a material term of the complete settlement” and the defendants “would not have agreed to settle this case if the parties had intended to leave the issue of additional attorneys’ fees open or unsettled.” In the alternative, the defendants argued that the motion for fees should be denied or reduced because the requested fees were unreasonable. Specifically, they argued that because the third motion was essentially a request for attorneys’ fees expended in obtaining a prior award of attorneys’ fees (a “fees for fees” request), the fee award should be capped at three percent of the fee award in the main case under the rule announced in Coulter v. Tennessee, 805 F.2d 146, 151 (6th Cir.1986), and that the bills submitted were unreasonable for the work required.
On November 30, 2010, the district court granted in part and denied in part the third motion for fees and costs. The district court concluded that the plaintiffs did not waive their right to receive further attorneys’ fees because the parties did not intend the consent decree to be a final disposition of all claims and found that the plaintiffs were entitled to collect an additional fee award. The district court found the requested hours and hourly rates to be reasonable, but agreed with the defendants that the three-percent rule from Coulter should apply to the request for supplemental fees. The court found that “the hours spent at all three stages of this attorneys’ fees case constituted preparation for and litigation of the attorneys’
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Northeast Ohio Coalition for Homeless v. Secretary of Ohio, 695 F.3d 563 (2012)

fees case” and that as a result, the entire fee request was subject to Coulter’s three percent rule. The district court therefore awarded fees equivalent to three percent of the award in the main case, for a total supplemental *569 attorney fee award of $15,132.50.3 The court also granted plaintiffs their requested costs and expenses.

3

The fee “awards in the main case were as follows: (1)

$321,942.15.51 [sic ] to Porter Wright; (2) $99,722.58

to Carlile Patchen; and (3) $82,749.38 to the Chandra

Law Firm.” Because each firm requested fees greater

than the three percent cap on supplemental fee awards,

the district court awarded three percent of the fee

awards made in the main case to each law firm:

$9,658.30 to Porter Wright, $2,991.70 to Carlile

Patchen, and $2,482.50 to the Chandra Law Firm.

The defendants appeal the award of fees and costs. The plaintiffs cross-appeal the supplemental fee award.

II.
[1] [2] “A district court’s interpretation of a consent decree or judgment is a matter of law subject to de novo review, and the underlying findings of fact are reviewed for clear error.” Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 371 (6th Cir.1998). We review a district court’s award of attorneys’ fees and costs under 42 U.S.C. § 1988 for abuse of discretion. Dubay v. Wells, 506 F.3d 422, 431 (6th Cir.2007). An abuse of discretion is a “definite and firm conviction that the trial court committed a clear error of judgment.” Id. (internal quotation marks omitted).

III.
A.
[3] [4] The Civil Rights Attorney’s Fees Award Act (the “Fees Act”), 42 U.S.C. § 1988(b), “permits a court in its discretion to award the ‘prevailing party’ in a § 1983 action ‘reasonable’ attorney’s fees as part of the costs.” Pouillon v. Little, 326 F.3d 713, 716 (6th Cir.2003). The Fees Act does not “bestow[ ] fee awards upon attorneys

nor render[ ] them nonwaivable or nonnegotiable....” Evans v. Jeff D., 475 U.S. 717, 731–32, 106 S.Ct. 1531, 89 L.Ed.2d 747 (1986). Thus, a prevailing plaintiff may waive attorney’s fees as part of a negotiated settlement. See id. at 732–37, 106 S.Ct. 1531. In considering whether a settlement includes a release or waiver of a claim to fees under 42 U.S.C. § 1988, we have adopted an approach that does not require the parties to reach an explicit agreement on the issue of attorneys’ fees. McCuiston v. Hoffa, 202 Fed.Appx. 858, 863 (6th Cir.2006) (citing Jennings v. Metro. Gov’t of Nashville, 715 F.2d 1111, 1114 (6th Cir.1983)). Instead, the critical inquiry is “whether the parties intended the settlement to be a final disposition of all claims, rather than whether the parties intended to include attorneys’ fees in the settlement.” Jennings, 715 F.2d at 1114. Because the parties need not have entered into “a separate agreement on each aspect of the claim in order to have reached a settlement in full,” in conducting the inquiry, “the silence of the parties regarding attorneys’ fees is not controlling.” Id. Although intent is generally a question of fact, “it may be determined by the court when the record permits only one inference.” McCuiston, 202 Fed.Appx. at 865 (citing Jennings, 715 F.2d at 1114).
In Jennings, we found that the settlement in question was a final disposition of all claims precluding a later request for attorneys’ fees where, after the monetary settlement was paid, the district court entered a final order dismissing the action “with prejudice” which did not mention costs. 715 F.2d at 1112, 1114. In reaching this conclusion, we emphasized that the intention of the parties was to settle all claims, that one of the lawyers requesting fees admitted that he had not intended to request fees at the time of settlement (and *570 thus that he did not intend to reserve settlement of that issue), and that the lawyer agreed to an order of dismissal with prejudice which was a final disposition of the lawsuit. Id. at 1114. We have also previously found that a stipulated consent judgment was a comprehensive settlement in full where the terms of the judgment stated that the judgment was a “final order of the court, disposing of all remaining claims in this action.” McCuiston, 202 Fed.Appx. at 861, 865. Similarly, in Toth v. UAW, we found that a district court’s grant of a fee award was precluded because the parties had entered into a settlement agreement which “made a final disposition of all claims, including any request for attorneys’ fees, regardless of whether or not such fees were specifically mentioned in that agreement.” 743 F.2d 398, 406–407 (6th Cir.1984). We found that the provision which provided that the “agreement constitutes the full and complete settlement of all claims, allegations,
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Northeast Ohio Coalition for Homeless v. Secretary of Ohio, 695 F.3d 563 (2012)

or other causes of action which relate in any manner to the allegations set forth in Count III” was the “provision of th[e] settlement most directly bearing on the fee issue.” Id. at 406.
B.
[5] The consent decree does not explicitly refer to attorneys’ fees and costs incurred during the time period claimed in the plaintiffs’ third motion for fees (between January 2009 and April 2010). Instead, it only provides for the payment of “attorneys’ fees that were previously awarded....” The issue of attorneys’ fees seems to be an afterthought, included only in a miscellaneous provision of the consent decree, which is largely merits-focused. Indeed, the majority of the consent decree focuses on issues relating to the substantive challenge to the procedures surrounding the implementation of the state voter ID laws and provides for injunctive relief. The consent decree lists the purposes of the decree as ensuring that the “fundamental right to vote is fully protected for registered and qualified voters who lack the identification required by the Ohio Voter ID laws, including indigent and homeless voters,” that the voters not be “required to purchase identification as a condition to exercising their fundamental right to vote,” that the votes be counted “even if they are cast by provisional ballot on Election Day,” and that voters will not be deprived of the right to vote because of differing interpretations of the Provisional Ballot Laws or because of poll worker error. Because the consent decree is overwhelmingly focused on the merits and is silent as to the availability of the attorneys’ fees requested in the third motion, we must consider whether the parties intended the consent decree to operate as a final disposition of all claims. Jennings, 715 F.2d at 1114.
To support their argument that the parties intended the consent decree to be a comprehensive settlement, the defendants argue that the plain language of the decree requires the conclusion that it was a final disposition of all claims because the preamble refers to the desire to settle the “action ... without the burden of protracted litigation” and states that the decree is “final and binding” and that the parties agree to the terms of the consent decree “in resolution of this action.” It is true, as defendants argue, that the scope of the consent decree is specifically defined as “final and binding ... as to the issues raised in the Plaintiffs’ Complaint and Supplemental Complaint, and the matters resolved in this Decree” and that the plaintiffs

did request attorneys’ fees in their complaint. However, the language in the consent decree is distinguishable from the language in McCuiston—where a final disposition of all claims was found—which *571 stated that the consent judgment “dispos[ed] of all remaining claims....” 202 Fed.Appx. at 865 (emphasis added). Similarly, the agreement here is distinguishable from a settlement agreement which stated that the defendant was “fully and forever” released from “any and all claims, demands, damages, actions, rights of actions”—language we found “sweeping” and that indicated the parties’ intent to bar future fee awards. Fulford v. Forest Hills Eagle Supermarket, 822 F.2d 1088, 1987 WL 38035, at *1 (6th Cir.1987) (per curiam ) (table). Because the language in the consent decree is limited in scope when compared to the operative language in McCuiston and Fulford, the concern that “allow[ing] attorney’s fees to [the plaintiffs] in the face of such language would make it impossible to devise a complete settlement of claims” is reduced. Id. Further, a natural reading of the specific language chosen, “issues raised in the Complaint,” does not automatically lead to the conclusion that all claims are extinguished by the consent decree. “Issues raised” suggests claims or the counts raised in the complaint, and not necessarily the relief prayed for in a complaint.
[6] The defendants contend that to distinguish the specific language referring to the decree as “final and binding among and between themselves as to the issues raised in the Plaintiffs’ Complaint and Supplemental Complaint,” from the language in McCuiston, which stated that the stipulated consent judgment was a “final order of the court, disposing of all remaining claims in this action,” 202 Fed.Appx. at 865, is to make a “hyper-technical distinction without any meaning.” Appellants’ Br. at 31. However, we must consider the specific terms of any settlement when determining whether the parties intended to make a final disposition of all claims. See McCuiston, 202 Fed.Appx. at 865 (finding a comprehensive settlement where consent judgment contained language stating that it “dispose[d] of ‘all remaining claims’ ”); Toth, 743 F.2d at 406 (finding provision stating that settlement agreement “constitutes the full and complete settlement of all claims” probative on fee issue); Jennings, 715 F.2d at 1114 (noting that parties agreed to terms that called for an order of dismissal with prejudice). It makes little sense to argue that specific word choices should not be viewed as probative and potentially significant when the terms of a relevant settlement agreement are key to shedding light on the intent of the parties. Here the words chosen are at least somewhat more specific and limited than those used in other settlement agreements where
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Northeast Ohio Coalition for Homeless v. Secretary of Ohio, 695 F.3d 563 (2012)

final dispositions of all claims have been found.
The defendants cite In re Lybarger, 793 F.2d 136, 138 (6th Cir.1986), to support their argument that the inclusion of language referring to the parties’ desire to settle the action “without the burden of protracted litigation” demonstrates the intent of the parties to resolve all claims. In Lybarger, we found that a plaintiff waived her right to appeal an order denying an application for supplemental attorney’s fees where the consent decree specifically stated that the parties were “desirous of settling these matters without further litigation” and provided that the parties would attempt to agree on a fee award and if they failed to do so, the plaintiff’s lawyer would submit his fee request to the district court which would make a final and non-appealable decision on fees. 793 F.2d at 137–38. When the district court denied plaintiff’s attorney’s request for supplemental fees, the plaintiff attempted to argue that the consent decree only prohibited appeal of the district court’s decision regarding fees incurred in connection with the merits and in preparation of the original application for fees. We rejected reading *572 the language of the consent decree so narrowly as to allow appeal of the district court decision on supplemental fees. Id. at 138. But unlike the case at hand, the decision in Lybarger focused on whether or not the plaintiff waived the right to appeal the district court decision regarding a supplemental fee award, not whether the right to request the supplemental fee award itself was precluded. Lybarger is thus of little help to the defendants.
[7] The affidavits submitted by both parties are consistent with each side’s purported intentions regarding attorneys’ fees when negotiating the consent decree. Ohio law allows the consideration of extrinsic evidence regarding an ambiguous term in a contract or consent decree. See Seals v. Gen. Motors Corp., 546 F.3d 766, 771 (6th Cir.2008); Waste Mgmt. of Ohio, Inc. v. City of Dayton, 169 Fed.Appx. 976, 988–89 (6th Cir.2006). Here, the extrinsic evidence offered is confined to the parties’ statements regarding what they intended to negotiate for during the consent decree negotiations and what they believed they were agreeing to under the terms of the consent decree.4 The affidavits simply reflect the fact that the parties had competing goals in forming the decree and possessed differing conceptions as to whether the decree was to extinguish all further claims for fees; they do not demonstrate that the parties explicitly discussed whether or not supplemental fees would be available. Thus, the affidavits do not provide substantial assistance in determining whether the consent decree was intended as a

final disposition of all claims.

4

The defendants argue that the affidavits from plaintiffs’

counsel are not probative of intent and provide no

evidence to contradict their view of the settlement

negotiations precisely because they are affidavits from

counsel and not from the prevailing party (NEOCH and

SEIU). The defendants contend that Venegas v.

Mitchell, 495 U.S. 82, 88, 110 S.Ct. 1679, 109 L.Ed.2d

74 (1990), establishes that the prevailing party, not the

lawyer, is the one eligible for the attorney fee award

and that only the prevailing party possesses the right to

waive, settle, or negotiate their eligibility for an

attorney fee award. However, Venegas did not confront

the question of whether an attorney affidavit is

inappropriate extrinsic evidence for a court to consider

in evaluating whether a consent decree was intended to

be a full disposition of all claims. Further, in Jennings,

we cited an admission of the plaintiff’s lawyer to

support our finding that the settlement was a final

disposition of all claims. 715 F.2d at 1113–14. We also

noted that the district court accepted the truthfulness of

affidavits provided by the defendants’ attorneys

regarding the settlement agreement entered into by the

parties. Id. at 1113.

The parties also disagree as to the import of the fact that the consent decree contained language allowing for modification, extension, and termination of the decree for good cause, as well as the fact that the decree was only to remain in effect until June 30, 2013. The district court found that because the parties agreed to allow for modification and extension of the agreement, the consent decree was further distinguishable from the consent judgment in McCuiston, which “did not allow the parties to seek to modify or extend the terms of the agreement and contained no qualifiers as to the scope of the consent judgment’s terms.” The defendants contend that because a consent decree is a settlement agreement subject to continued judicial oversight, it is standard to include termination dates and that the ability to modify a consent decree should not preclude finding a settlement in full.
[8] It is true that a consent decree is a “settlement agreement subject to continued judicial policing.” Vanguards of Cleveland v. City of Cleveland, 23 F.3d 1013, 1017 (6th Cir.1994) (internal quotation marks omitted). In that sense, the defendants are correct that the ability to *573 modify a consent decree should not prevent a finding of a settlement in full. However, it is also true that the fact that the district court retains the power to modify or police a consent decree is different
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Northeast Ohio Coalition for Homeless v. Secretary of Ohio, 695 F.3d 563 (2012)

from the affirmative decision to include a provision that allows any party to move to “modify, extend, or terminate” the decree for good cause. The fact that the decree expressly provides for modification or extension by the parties for good cause does provide some, albeit limited, support for reading the decree as providing for something less than a final disposition of all claims. If the parties truly thought that the decree worked a final disposition of all claims, they might have opted not to include the language regarding modification or extension and simply relied on the default rule allowing for continued judicial policing and modification.
The defendants finally argue that construing the consent decree to be anything but a final disposition of all claims would set a dangerous precedent because it would make states wary of entering into consent decrees. We disagree with such a broad assertion. The potential impact of our construction is merely to incentivize prudent parties to exercise care in drafting settlement agreements and encourage them to ensure that the language they choose clearly indicates whether they intend a final disposition of all claims. In the consent decree at issue, the defendants could have negotiated for the addition of a single sentence to the miscellaneous provisions section stating that the agreement regarding attorneys’ fees previously awarded constitutes the entire agreement regarding fees and costs and that it disposes of any and all existing or future requests for attorneys’ fees and costs, or the defendants could have requested language in the preamble that clearly states that all remaining claims are extinguished by the consent decree. They simply did not do so.
Accordingly, because the language of the consent decree contains both broad language and language limiting its scope, it is distinguishable from other consent decrees or settlements where a final disposition of all claims has been found on the basis of clear and broad language. The affidavits in the record do not clarify matters so as to permit a single inference that the parties intended a final disposition of all claims. As a result, we conclude that the plaintiffs did not waive their right to petition for supplemental fees and costs.

although the district court correctly found that they are entitled to an attorneys’ fees award, the district court erred in applying the three percent cap from Coulter to limit the fee award because the “unusual circumstances” exception to the rule renders the three percent rule inapplicable to the supplemental fees award. They also contend that the “three percent rule” from Coulter should be reexamined because it leads to severe consequences and because a rigid misapplication of Coulter is inconsistent with the intent of Congress in passing the Fees Act, which was to provide an economic incentive for attorneys to take on meritorious civil rights cases. Second, they argue that even if Coulter is correctly applied to some of the work that provided the basis for the third motion for fees and costs, the district court erroneously applied Coulter to all of the work underlying their third motion.
A.
[9] “Although time spent in preparing, presenting, and trying attorney fee applications *574 is compensable; some guidelines and limitations must be placed on the size of the[ ] fees. Otherwise the prospect of large fees later on may discourage early settlement of cases by rewarding protracted litigation of both the civil rights case and the attorney fee case.” Coulter, 805 F.2d at 151. Because the “attorney fee case is not the case Congress expressed its intent to encourage[,] ... in order to be included, it must ride piggyback on the civil rights case.” Id. We established a general rule that “[i]n the absence of unusual circumstances, the hours allowed for preparing and litigating the attorney fee case should not exceed 3% of the hours in the main case when the issue is submitted on the papers without a trial and should not exceed 5% of the hours in the main case when a trial is necessary.” Id. Subsequent cases have applied and affirmed the controlling nature of the Coulter three percent rule. See Gonter v. Hunt Valve Co., 510 F.3d 610, 620–21 (6th Cir.2007); Auto Alliance Int’l, Inc. v. U.S. Customs Serv., 155 Fed.Appx. 226, 229 (6th Cir.2005).

IV.
In their cross-appeal, the plaintiffs essentially challenge two aspects of the district court’s grant of supplemental attorneys’ fees and costs. First, the plaintiffs argue that

B.
The plaintiffs argue that we should reexamine Coulter, largely because they contend that Coulter’s three percent rule is in tension with Weisenberger v. Huecker, 593 F.2d
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Northeast Ohio Coalition for Homeless v. Secretary of Ohio, 695 F.3d 563 (2012)

49 (6th Cir.1979). The plaintiffs argue that we should return to the principles espoused in Weisenberger. In Weisenberger, we found that the district court erred in denying prevailing plaintiffs requested attorneys’ fees and costs incurred in pursuing their attorneys’ fees awards in two § 1983 cases and awarded the plaintiffs ninety percent of the hours submitted in their supplemental request. 593 F.3d at 54 & n. 12. However, in Weisenberger, we were focused on applying the recently passed Fees Act and determining whether, under the Fees Act, attorneys’ fee awards should include an award for time spent pursuing attorneys’ fees. Id. at 53–54. Weisenberger predated Coulter, which found, consistent with Weisenberger, that attorneys are entitled to attorneys’ fees for preparing and litigating the attorneys’ fees case—but also found that a limiting principle was necessary to prevent the pursuit of such supplemental fee awards from subverting Congress’s intent in passing the Fees Act, which was “to encourage lawyers to bring successful civil rights cases, not successful attorney fee cases.” Coulter, 805 F.2d at 151.
Although the supplemental fee award granted by this court in Weisenberger is likely greater than that which would have been awarded under Coulter,5 the two cases are easily reconciled. Coulter elaborates upon and develops the law surrounding attorney fee cases, which Weisenberger acknowledged are recoverable under the Fees Act. As noted above, we have followed Coulter, a published case, in both published and unpublished cases. Coulter itself also provides that in “unusual circumstances” the cap on the supplemental fee award at three percent of the hours in the main case (or five percent if the main case goes to trial) will not apply. Coulter, 805 F.2d at 151. Thus, Coulter would not necessarily or automatically preclude the fees granted in Weisenberger. Because this is not a case where a later decision *575 conflicts with an earlier one, see Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir.1985), we cannot revisit Coulter here.

5

It appears that the supplemental fee award granted in

Weisenberger would likely exceed the three percent cap

established in Coulter. The cases were decided without

trial, see Milburn v. Huecker, 500 F.2d 1279 (6th

Cir.1974), and the district court awarded $2,500.00 and

$2,000.00 to the respective plaintiffs for attorneys’ fees

in the main cases. Weisenberger, 593 F.2d at 51. This

court awarded the plaintiffs $5,096.00 for defending

their fee award on appeal. Id. at 54.

Although the plaintiffs argue that it is unlikely that attorneys will continue to act as private attorneys general in taking on civil rights suits “if they will be compensated for only a tiny fraction of every 100 hours that they reasonably spend briefing legitimate fee requests, defending appeals of fee awards, and negotiating lengthy and detailed consent decrees,” this argument overstates the impact of the Coulter rule. The plaintiffs are correct that any cap on attorneys’ fees might discourage attorneys from taking on civil rights cases, but the Fees Act itself presumes that the award in the main case provides sufficient incentive for attorneys. And as Coulter explains, while the availability of an award of fees for defending fee awards provides additional protection for such lawyers, this needs to be balanced against the unwanted incentives that could result from protracted litigation seeking fees for fees. Moreover, the plaintiffs err in arguing that attorneys will only receive a tiny fraction of every 100 hours they work on their attorneys’ fees cases. The Coulter rule focuses on the hours spent on the main case. Thus, in a particularly complicated and lengthy main case, an attorney may be able to recover all of the claimed hours spent on the attorneys’ fees case.
The plaintiffs argue that even if the panel declines to reexamine Coulter, the Coulter rule should not apply to their third motion for fees and costs because “unusual circumstances” exist which render the three percent cap inapplicable. In essence, the plaintiffs argue that the protracted and complicated nature of the litigation on the merits, as well as the significant challenges to the fee requests mounted by the defendants, demonstrate unusual circumstances distinguishable from the case in Coulter, which the district court characterized as a “simple” case.
We have previously rejected an argument that “ ‘protracted’ fee litigation [in the district court] is itself an unusual circumstance justifying a larger recovery....” Auto Alliance, 155 Fed.Appx. at 229. However, we have also found the three percent cap on fees for fees inappropriate where the losing party engaged in “protracted and needless appellate litigation” because granting fees would discourage the losing party from engaging in the kind of protracted fees for fees litigation Coulter sought to limit. Lamar Adver. Co. v. Charter Twp. of Van Buren, 178 Fed.Appx. 498, 502 (6th Cir.2006).
[10] Although the litigation over the fees award in this case involved a somewhat unusual procedural history and the main case was arguably more complex than the one-day bench trial involved in Coulter, the district court did not abuse its discretion in capping the supplemental fee award
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Northeast Ohio Coalition for Homeless v. Secretary of Ohio, 695 F.3d 563 (2012)

at three percent. The district court necessarily has a “superior understanding of the litigation.” Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). And here, the district court did not find that the actions of the defendants in appealing the fee award justified a finding of “unusual circumstances.” Although the defendants’ appeal did prolong the fee litigation, there is no indication that the appeal was needless or meritless. The defendants opposed the original motion for fees on several grounds that do not appear to be frivolous. For example, the defendants opposed the original fees motion, arguing in part that if the district court were to find that the plaintiffs were prevailing parties, the court should still reduce any fee award to reflect the plaintiffs’ less-than-complete degree of success. *576 The district court agreed with this argument and noted in its analysis of a reasonable fee award that the “Plaintiffs’ success ... is not as broad as they have characterized it” and, in light of the partial success, that “the lodestar amount may be reduced because attorney’s fees are not typically awarded for unsuccessful claims.” As a result, the district court granted a hearing on the reasonableness of the claimed fees, which both parties had requested. The district court also agreed with some of the defendants’ further objections to the plaintiffs’ fee requests in its analysis of the first and second motions for fees and costs. The court reduced the hours claimed by the plaintiffs and also applied a twenty percent reduction to the lodestar amount in recognition of its finding that the plaintiffs achieved less-than-total success on all of their claims. Therefore, the defendants’ initial challenges to the fee awards were not frivolous, and it is unlikely that their decision to appeal the district court’s fee award for the first and second fee requests was needless, given that some of their objections to the plaintiffs’ claims were already recognized by the district court as reasonable. This is distinguishable from the situation in Lamar Advertising, where the losing defendant had engaged in a needless appellate challenge to the fee award. 178 Fed.Appx. at 502. Thus, the district court’s decision to apply Coulter’s three percent rule to the supplemental fee award does not lead to a “definite and firm conviction that the trial court committed a clear error of judgment.” Dubay, 506 F.3d at 431 (internal quotation marks omitted).
C.
In their final challenge to the district court’s partial grant of their third motion for costs and fees, the plaintiffs

argue that the district court abused its discretion when it applied Coulter to all of the work for which they sought to be compensated in the third motion. The district court found that all three stages of work claimed in the third motion for fees “constituted preparation for and litigation of the attorneys’ fee case” and as a result, applied the Coulter three percent rule to all of the hours claimed in the third motion. The plaintiffs argue that the time spent defending their main case fee award on appeal and the time spent negotiating the consent decree should not be considered time spent preparing and litigating the attorney fee case and that Coulter should not apply to cap their fee award for the hours claimed for those hours.6

6

The plaintiffs do not challenge the finding that the

request for fees for the time spent briefing and arguing

the first two motions for fees and costs was a

supplemental fees request.

[11] The district court did not abuse its discretion in finding that the time spent opposing and settling the appeal of the fee award for the main case was time spent preparing and litigating the attorney fee case. The plaintiffs argue that Weisenberger and Lamar Advertising demonstrate that prevailing plaintiffs should be able to recover fees incurred defending main case fee awards on appeal. However, Weisenberger predated Coulter’s limitation on the total possible recovery and does not support the proposition that a deviation from Coulter is appropriate when a plaintiff must defend a fee award on appeal. Further, Lamar Advertising actually notes that fees for fees are available for litigation “on the fee request at both the lower court level and at the appellate level.” 178 Fed.Appx. at 502. While we did not apply the Coulter rule to limit the fees the plaintiffs requested in Lamar Advertising for hours their attorneys spent defending *577 their fee award, our decision was premised not upon the mere fact that time was spent defending the appeal, but upon the facts that the losing party “protracted the ‘fees for fees’ litigation by making spurious arguments” on appeal and engaged in “protracted and needless appellate litigation.” Id.
[12] Nor did the district court abuse its discretion in finding that the hours spent negotiating the consent decree were hours spent preparing and litigating the attorneys’ fees case. While the consent decree negotiations present a somewhat unique situation, the time spent working on the decree is traceable to the litigation of the attorneys’ fees case. The parties engaged in discussions with the circuit
9

Northeast Ohio Coalition for Homeless v. Secretary of Ohio, 695 F.3d 563 (2012)

mediator only after the defendants appealed the original fee award; accordingly, the decree negotiations—and the inclusion of the provision that the Secretary of State would pay the entire fee award for the main case in the consent decree—are the direct result of the appeal of the fee award. The negotiations which led to the inclusion of the provision regarding payment of fees previously awarded are thus traceable to litigation in pursuit of obtaining fees and the district court did not abuse its discretion in finding that the hours spent negotiating the consent decree are properly limited by the Coulter three percent rule.
V.
For the foregoing reasons, we affirm the judgment of the district court.
KAREN NELSON MOORE, Circuit Judge, concurring.
I write separately because I question the continued vitality

of the three-percent rule in cases seeking attorneys’ fees to recover the costs of pursuing fees under 42 U.S.C. § 1988. No other circuit—to my knowledge—has adopted a bright-line rule for calculating “fees for fees” like the one we stated in Coulter v. Tennessee, 805 F.2d 146 (6th Cir.1986), cert. denied, 482 U.S. 914, 107 S.Ct. 3186, 96 L.Ed.2d 674 (1987). Although I am sympathetic to the reasoning espoused in Coulter for such a rule, I see no justification in the statute or the legislative history for divesting the district courts of their discretion to determine whether fees for fees should be awarded and in what amount. However, because Coulter is binding Sixth Circuit precedent, I concur with the majority’s analysis in this case. I also agree that the exception for unusual circumstances warranting a departure from the three-percent rule is not applicable in this case. The parties were free to contract around Coulter upon realizing that the consent decree would encompass more than just settling the litigation over the attorneys’ fees, just as they were free to specify clearly that the consent decree would be final as to all claims.

10

 
 Northeast Ohio Coalition for Homeless and Service Employees..., 467 F.3d 999 (2006)

467 F.3d 999 United States Court of Appeals,
Sixth Circuit.
NORTHEAST OHIO COALITION FOR the HOMELESS AND SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1199,
Plaintiffs–Appellees, v.
J. Kenneth BLACKWELL, Defendant–Appellant (06–4412),
State of Ohio, Intervenor–Appellant (06–4421).
Nos. 06–4412, 06–4421. | Decided and Filed: Oct. 31, 2006.
Synopsis Background: Organization representing the homeless and labor union brought action against the Secretary of State of the State of Ohio, challenging Ohio’s absentee ballot voter identification laws, as violative of the due process clause and the equal protection clause, and asserting other constitutional claims. The United States District Court for the Southern District of Ohio, Algenon L. Marbley, J., issued temporary restraining order (TRO) restraining the enforcement of the absentee ballot voter identification laws, and denied the motion to intervene filed the State of Ohio. The State of Ohio and the Secretary appealed.

Arthur J. Tarnow, District Judge, filed opinion, concurring in part and dissenting in part.

Attorneys and Law Firms

*1002 H. Ritchey Hollenbaugh, Carlile, Patchen & Murphy, Columbus, OH, Caroline Gentry, Porter, Wright, Morris & Arthur, Dayton, OH, Subodh Chandra, Cleveland, OH, for Plaintiffs–Appellees.

Richard N. Coglianese , Ohio Attorney General’s Office, Constitutional Offices Section, Columbus, OH, for Defendant–Appellant. Before GIBBONS and McKEAGUE, Circuit Judges; TARNOW, District Judge.*

*

The Honorable Arthur J. Tarnow, United States District

Judge for the Eastern District of Michigan, sitting by

designation.

Opinion

McKEAGUE, J. (p. 1012), delivered a separate concurring opinion. TARNOW, D.J. (p. 1013), delivered a separate opinion concurring in part and dissenting in part.

Holdings: The Court of Appeals, Julia Smith Gibbons, Circuit Judge, held that: [1] TRO was immediately appealable as interlocutory injunctive order; [2] State of Ohio had right to intervene; [3] neither organization nor labor union had associational standing; and [4] stay of TRO was warranted.
Motions granted in part, and denied in part.
McKeague, Circuit Judge, filed concurring opinion.

OPINION
JULIA SMITH GIBBONS, Circuit Judge.
Defendant-appellant J. Kenneth Blackwell, in his official capacity as the Secretary of State of the State of Ohio (the “Secretary”), moves this court to stay or vacate a temporary restraining order (“TRO”) and associated orders to the Secretary and County Boards of Elections that restrain enforcement of certain absentee voter identification provisions under Ohio Rev.Code Ann. §§ 3509.03(E)(1)-(3), 3509.04, 3509.05(A). The orders were entered by the district court on October 26, 2006. Plaintiffs-appellees Northeast Ohio Coalition for the Homeless and Service Employees International Union,
1

Northeast Ohio Coalition for Homeless and Service Employees..., 467 F.3d 999 (2006)

Local 1199 (the “Organizations”) move to dismiss this appeal for lack of subject matter jurisdiction. The State of Ohio moves to intervene to represent the interests of the people of Ohio and the General Assembly in defending the constitutionality of the statute. For the following reasons, we deny the motion to dismiss for lack of jurisdiction, grant the motion to intervene, and grant in part the motion to stay or vacate the district court’s orders.
I.
On January 31, 2006, the Ohio General Assembly passed House Bill 3, Ohio’s comprehensive election reform bill (“Voter ID law”), and the Governor signed the bill the same day. The bill amended the Ohio Election Code to require that voters provide any of several specific types of identification in order to cast a regular ballot in state and federal elections held in Ohio. Some Voter ID law provisions went into effect on May 2, 2006, and the remaining provisions went into effect on June 1, 2006. Portions of the challenged statutes relating to applications for absentee ballots were enacted as part of HB 234, which was effective on January 27, 2005.
The provisions of the Voter ID law that require voters to provide any of several specific types of identification when casting their ballots are mandatory for all persons who cast their votes by regular ballot on election day. Ohio Rev.Code Ann. § 3505.18(A)(1). These new voter-identification laws are not mandatory for voters who cast their votes by absentee ballot, whether by mail or in-person at their Boards of Elections, before or on election day. Ohio Rev.Code Ann. §§ 3509.03, 3509.04, 3509.05. However, like the sections governing election-day voting, the Voter ID law also includes other provisions relating to absentee voter identification requirements, and it is these provisions to which the TRO relates.
*1003 Three sections of the Voter ID law relate to absentee ballots. Section 3509.03(E) requires that an application for an absentee ballot contain:
(E) One of the following:
(1) The elector’s driver’s license number;
(2) The last four digits of the elector’s social security

number;
(3) A copy of the elector’s current and valid photo identification, a copy of a military identification that shows the elector’s name and current address, or a copy of a current utility bill, bank statement, government check, paycheck, or other government document, other than a notice of an election mailed by a board of elections under section 3501.19 of the Revised Code or a notice of voter registration mailed by a board of elections under section 3503.19 of the Revised Code, that shows the name and address of the elector.
Ohio Rev.Code Ann. § 3509.03(E). Section 3509.04(B) requires that with each absentee ballot the Board of Elections include an identification envelope requiring a voter to provide one of the following:
My driver’s license number is ... (Driver’s license number)
The last four digits of my Social Security Number are ... (Last four digits of Social Security Number)
.... In lieu of providing a driver’s license number or the last four digits of my Social Security Number, I am enclosing a copy of one of the following in the return envelope in which this identification envelope will be mailed: a current and valid photo identification, a military identification that shows my name and current address, or a current utility bill, bank statement, government check, paycheck, or other government document, other than a notice of an election mailed by a board of elections under section 3501.19 of the Revised Code or a notice of voter registration mailed by a board of elections, that shows my name and address.
Ohio Rev.Code Ann. § 3509.04(B). Section 3509.05(A) provides that when returning the absentee ballot:
If the elector does not provide the elector’s driver’s license number or the last four digits of the elector’s social security number on the statement of voter on the identification envelope, the elector also shall include in the return envelope with the identification envelope a copy of the elector’s current valid photo identification, a copy of a military identification
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that shows the elector’s name and current address, or a copy of a current utility bill, bank statement, government check, paycheck, or other government documents, other than a notice of an election mailed by a board of elections under section 3501.19 of the Revised Code or a notice of voter registration mailed by board of elections under section 3503.19 of the Revised Code, that shows the name and address of the elector.
Ohio Rev.Code Ann. § 3509.05(A). Absentee voting pursuant to these laws for the November 2006 election began in early October 2006.
On October 26, 2006, the Secretary issued Directive 2006–78 in an effort to “ensure that the November 7 elections are conducted uniformly throughout the State.” In the Directive the Secretary defines the term “current” as used in the Voter ID law as “dated not more than six months from the date that it is presented to the election official.” The Directive defines “government document” to include “any local, state or federal government document that shows the voter’s name and current address.” Finally, the Directive *1004 includes a section intended to clarify what was meant by “driver’s license number.” This section acknowledges that a driver’s license has two numbers in close proximity to one another, but noted that “[u]pon receipt of an absentee ballot, which purports to contain the driver’s license number but contains the number above the photograph or some other number which is not the driver license [sic] number, acceptable proof of identity has not been provided.”
II.
On October 24, 2006, the Organizations filed suit in the district court claiming in relevant part that: (1) the voter identification laws for absentee ballots are confusing, vague, impossible to apply, and in fact are being applied differently by Ohio’s Boards of Elections, causing the November 2006 election to be conducted in a manner that is fundamentally unfair in violation of the Due Process Clause of the Fourteenth Amendment (Count One); (2) the voter identification laws for absentee ballots cannot and will not be applied uniformly by Boards of Elections,

violating the Equal Protection Clause of the Fourteenth Amendment (Count Two); and (3) the requirement of proof of current address for submission of absentee ballots, when other voters are not required to provide a current address, violates the Fourteenth Amendment and 42 U.S.C. § 1971(a)(2)(A)-(B) (Counts Eight, Nine, and Ten).1 Counts Three through Seven and Eleven through Thirteen assert claims not relevant to the TRO request.

1

At the hearing on the TRO, counsel for the

Organizations characterized the challenge to the

absentee ballot provisions as “mostly an as applied

challenge.” He also stated that “the main thrust of our

lawsuit, the reason we brought it, is because of those as

applied problems.”

After a hearing on October 26, 2006, the district court issued a TRO restraining the enforcement of the absentee voting identification requirements in Ohio Rev.Code Ann. §§ 3509.03(E)(1)-(3), 3509.04, 3905.05(A) (quoted above). Specifically, the district court concluded the phrases “current,” “other government document,” “military identification,” and “driver’s license number” were unconstitutionally vague and were being unequally applied by the Boards of Elections. Although the effect of the clarifying Directive issued by the Secretary was discussed at the hearing, it is not addressed in the TRO. In addition to enjoining enforcement of these provisions, the district court ordered the Secretary to issue a directive to the Boards of Elections requiring that they not enforce the enjoined provisions, preserve all absentee ballots in their present form, and inform absentee voters that compliance with the enjoined provisions was not required. By its terms, the TRO remains in effect until the district court disposes of the Organizations’ motion for a preliminary injunction, for which an evidentiary hearing is scheduled on November 1, 2006.
As the Secretary did not wish to file an appeal of the TRO, the Attorney General of Ohio on behalf of the State of Ohio (the “State”) filed a motion to intervene in the case. The district court held a hearing on October 27, 2006, and denied the motion to intervene as of right, concluding that although the State had the requisite interest in the outcome of the case, that interest was adequately represented by the Secretary, who was also represented in the case by the Attorney General’s office. The district court also denied permissive intervention, concluding that because the State’s interests were adequately represented by the Secretary, intervention would present *1005 redundant arguments and waste the time of the district
3

Northeast Ohio Coalition for Homeless and Service Employees..., 467 F.3d 999 (2006)

court and the Attorney General’s office.
The Attorney General’s office, on behalf of the Secretary, filed a timely appeal of the TRO, which was docketed as No. 06–4412, moving to stay or vacate the district court’s orders. The Organizations filed a motion to dismiss that appeal for lack of subject matter jurisdiction. The State moved to intervene in the appeal of the TRO. The State filed a separate appeal of the denial of its motion to intervene as of right in the district court case, which was docketed as No. 06–4421. When parties have filed separate timely notices of appeal, the appeals may be joined or consolidated by this court. Fed. R. of App. P. 3(b) (providing that the court may consolidate appeals on its own motion); see also In re Cannonsburg Envtl. Associates, Ltd., 72 F.3d 1260, 1269 (6th Cir.1996). Because both cases present common questions of law and fact, we consolidate the two cases. The analysis that follows in part IV, pertaining to the matter of the State’s intervention, thus applies to both cases.
III.
[1] The Organizations move to dismiss appeal No. 06–4412 for lack of subject matter jurisdiction, arguing that 28 U.S.C. § 1292(a)(1) does not allow for an interlocutory appeal of the district court’s TRO. This court has jurisdiction of appeals from “[i]nterlocutory orders of the district courts of the United States ... granting, continuing, modifying, refusing or dissolving injunctions.” 28 U.S.C. § 1292(a)(1). In contrast, this court generally lacks jurisdiction to hear an appeal of the district court’s decision to grant or deny a TRO. See Office of Pers. Mgmt. v. Am. Fed’n of Gov’t Employees, AFL–CIO, 473 U.S. 1301, 1303–04, 105 S.Ct. 3467, 87 L.Ed.2d 603 (1985); Leslie v. Penn Cent. R.R. Co., 410 F.2d 750, 752 (6th Cir.1969). The rationale for this rule is that TROs are of short duration and usually terminate with a prompt ruling on a preliminary injunction, from which the losing party has an immediate right of appeal. See Vuitton v. White, 945 F.2d 569, 573 (3d Cir.1991). Therefore, an appeal of the TRO is not necessary to protect the rights of the parties, see id., and practical reasons favor waiting for an appeal of the preliminary injunction, see Dilworth v. Riner, 343 F.2d 226, 229 (5th Cir.1965) (noting that an appeal is normally not feasible within the short time available and that orderly procedure requires the trial judge pass on the question presented with full development of the facts and the law); Connell v.

Dulien Steel Prods., Inc., 240 F.2d 414, 418 (5th Cir.1957).
[2] [3] [4] However, the label attached to an order by the trial court is not decisive, and the court looks to the nature of the order and the substance of the proceeding below to determine whether the rationale for denying appeal applies. See In re Carroll, 903 F.2d 1266, 1269 (9th Cir.1990); Adams v. Vance, 570 F.2d 950, 953 (D.C.Cir.1978); Morning Tel. v. Powers, 450 F.2d 97, 99 (2d Cir.1971); Dilworth, 343 F.2d at 229; Connell, 240 F.2d at 418. An order may be appealed under section 1292(a)(1) if it has the practical effect of an injunction and “further[s] the statutory purpose of ‘permit[ting] litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence.’ ” Carson v. Am. Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981) (quoting Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181, 75 S.Ct. 249, 99 L.Ed. 233 (1955)); see Sims Varner & Assocs. v. Blanchard, 794 F.2d 1123, 1126–27 (6th Cir.1986). Accordingly, courts have allowed interlocutory appeal of *1006 TROs which threatened to inflict irretrievable harms before the TRO expired. See Ross v. Rell, 398 F.3d 203 (2d Cir.2005); Berrigan v. Sigler, 475 F.2d 918 (D.C.Cir.1973); United States v. Wood, 295 F.2d 772 (5th Cir.1961). Furthermore, courts have allowed interlocutory appeal of TROs that do not preserve the status quo but rather act as a mandatory injunction requiring affirmative action. See Adams, 570 F.2d at 953; Belknap v. Leary, 427 F.2d 496, 498 (2d Cir.1970). When a TRO does not “merely preserve the status quo pending further proceedings,” but rather “directs action so potent with consequences so irretrievable, we provide an immediate appeal to protect the rights of the parties.” Adams, 570 F.2d at 953; see Am. Fed’n of Gov’t Employees, 473 U.S. at 1304–05, 105 S.Ct. 3467 (citing Adams with approval, noting that “[o]nly if the District Court granted the temporary restraining order would it have disturbed the status quo” by preventing the implementation of new regulations, and implying that appellate jurisdiction would be available); cf. Summit County Democratic Cent. and Executive Comm. v. Blackwell, 388 F.3d 547 (6th Cir.2004) (issuing a stay of a TRO affecting election day requirements without analysis of jurisdiction).
[5] The TRO at issue in this case both threatens to inflict irretrievable harm before it expires and acts as a mandatory injunction that does not preserve the status quo. The TRO requires the Secretary to direct County Boards of Elections not to enforce the disputed voter identification requirements and, in fact, to instruct voters
4

Northeast Ohio Coalition for Homeless and Service Employees..., 467 F.3d 999 (2006)

affirmatively that they need not comply with the identification requirements. Any absentee ballot cast during the operation of the TRO must necessarily be considered valid, regardless of whether the voter has complied with the identification requirements. As it will be difficult, if not impossible, to equitably enforce the voter identification requirements retroactively for these ballots, the TRO permanently exempts these ballots from the disputed law, regardless of the ultimate resolution of this case, inflicting an irretrievable harm on the State of Ohio. Thus the TRO goes far beyond preserving the status quo, which could be achieved by restraining the State from discarding any ballots that it found to be in violation of the identification requirements. The nature and effect of this TRO necessitate an immediate interlocutory appeal, and the court has subject matter jurisdiction over it. The motion to dismiss is denied.
IV.
The Attorney General of Ohio seeks to intervene on behalf of the State pursuant to Federal Rule of Civil Procedure (“F.R.C.P.”) 24(a) and (b) “in order to defend the constitutionality of [Ohio] R.C. 3501.01, et seq., Ohio’s Voter Identification Statutes [Voter ID law].” State of Ohio’s Mot. to Intervene at 1. The State both moves to intervene in the appeal of the TRO before this court (No. 06–4412) and appeals the district court’s denial of its motion to intervene as of right in the district court case (No. 06–4421). According to the State, the “Secretary’s stated desire not to appeal has led to this motion to intervene on behalf of the State of Ohio and the General Assembly, who wish to participate in arguing the constitutionality of the statutes at issue.” Id. This court may grant the motion to intervene pursuant to F.R.C.P. 24 either as a matter of right under 24(a) or, alternatively, permit the absentee State to intervene under 24(b). These same provisions govern the State’s intervention in the district court as well.
Upon timely application, F.R.C.P. 24(a) permits anyone to intervene in an action: *1007 (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating the action and is so situated that the disposition of the action may impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties. F.R.C.P. 24(a).

[6] The State first argues that it has a statutory right to intervene pursuant to 28 U.S.C. § 2403(b), which provides “[i]n any action, suit, or proceeding in a court of the United States to which a State or any agency, officer, or employee thereof is not a party, wherein the constitutionality of any statute of that State affecting the public interest is drawn in question, the court shall certify such fact to the attorney general of the State, and shall permit the State to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality.” 28 U.S.C. § 2403(b) (emphasis added). However, as noted by the State itself, “this is not a case in which the duty to certify arises or [28 U.S.C. § 2403(b) ] strictly applies.” State of Ohio’s Mot. to Intervene at 1. The Secretary, an officer of the State, is already a party in this case and thus the provision is inapposite. Any argument that the Secretary’s intention not to appeal the matter results in the Secretary not being a party to the matter for purposes of section 2403(b) is contrary to the plain language of the statute.
[7] The State does, however, satisfy the requirements of F.R.C.P. 24(a)(2), and thus has a right to intervene. Under this court’s interpretation of Rule 24(a)(2), a third party may qualify for intervention of right in the absence of a statute if the third party can satisfy four elements: (1) timeliness of application; (2) a substantial legal interest in the case; (3) impairment of the applicant’s ability to protect that interest in the absence of intervention; and (4) inadequate representation of that interest by parties already before the court. Mich. State AFL–CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir.1997).2

2

In considering an appeal from a district court’s denial

of intervention (case No. 06–4421), this court reviews a

district court’s determination as to the timeliness

element for an abuse of discretion, and the remaining

three elements are examined de novo. Cuyahoga Valley

Ry. Co. v. Tracy, 6 F.3d 389, 395 (6th Cir.1993). Here

the district court made no ruling as to timeliness. As to

the motion to intervene in appeal No. 06–4412, we

apply the rule ourselves in the first instance. Therefore,

the analysis in both cases is the same.

The first two factors are easily met. The State of Ohio filed this motion within hours of the appeal by the defendant, and the application is therefore timely. Under this circuit’s “rather expansive notion of interest,” the State also has a manifest legal interest in defending the constitutionality of Ohio’s laws. Id.; Bradley v. Milliken, 828 F.2d 1186, 1192 (6th Cir.1987) ( “[T]his court has
5

Northeast Ohio Coalition for Homeless and Service Employees..., 467 F.3d 999 (2006)

acknowledged that ‘interest’ is to be construed liberally.”).
The State’s right to intervene then turns on the final two factors. The Supreme Court has emphasized that the requirement of impairment of a legally protected interest is a minimal one: the requirement is met if the applicant shows “that representation of his interest ‘may be’ inadequate.’ ” Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n. 10, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972) (citation omitted); see also Mich. State AFL–CIO, 103 F.3d at 1247 (“a would-be intervenor must show only that impairment of its substantial legal interest is possible if intervention is denied. This burden is minimal.” (citation omitted)). Here, an adverse ruling could hinder the State’s ability to litigate *1008 the validity of the Ohio law. See Linton v. Comm’r of Health & Env’t, 973 F.2d 1311, 1319 (6th Cir.1992) (acknowledging that potential stare decisis effects can be a sufficient basis for finding an impairment of interest). Further, this court has recognized that the time-sensitive nature of a case may be a factor in our intervention analysis. See Ams. United for Separation of Church and State v. City of Grand Rapids, 922 F.2d 303 (6th Cir.1990) (finding that the extra time involved in initiating a separate lawsuit to allow a would-be intervenor to display a menorah on public property likely would have pushed the resolution beyond the coming Chanukah season). The same timeliness concern exists here, as absentee voting is ongoing and the election is imminent. Accordingly, the State of Ohio has demonstrated impairment of its interest.
[8] The State’s burden with respect to establishing that its interest is not adequately protected by the existing party to the action is a minimal one; it is sufficient to prove that representation may be inadequate. Linton, 973 F.2d at 1319. A would-be intervenor is not required to show that the current representation will in fact be inadequate. Mich. State AFL–CIO, 103 F.3d at 1247 (finding that “it may be enough to show that the existing party who purports to seek the same outcome will not make all of the prospective intervenor’s arguments.”). In this case, the Secretary’s primary interest is in ensuring the smooth administration of the election, while the State and General Assembly have an independent interest in defending the validity of Ohio laws and ensuring that those laws are enforced. Further, the Secretary’s stated desire not to appeal the district court’s grant of a TRO illustrates how the interests of the Secretary and the State of Ohio potentially diverge. See Mich. State AFL–CIO, 103 F.3d at 1248.

Accordingly, the Organizations’ insistence that a would-be intervenor “must overcome the presumption of adequate representation that arises when they share the same ultimate objective as a party to the suit” is misplaced. Opp’n of Pls.-Appellees to Emergency Mots. for Reversal of Denial of Mot. to Intervene at 15 (citation omitted). As discussed above, the State and the Secretary do not have “the same ultimate objective.” The Organizations’ emphasis on which lawyers from the Attorney General’s office attended the TRO hearing and the Secretary’s intention to litigate the preliminary injunction is irrelevant. The difference of opinion regarding whether to appeal the TRO is merely illustrative of the underlying divergent interests of the Secretary and the State.
Under the circumstances of this case, then, we conclude that the State of Ohio has satisfied the four elements found in Federal Rule of Civil Procedure 24(a) and is entitled to intervention as of right, both in appeal No. 06–4412 and in the ongoing district court proceedings. Accordingly, we need not address the State’s alternative argument for permissive intervention under Rule 24(b).
The Organizations also argue that the Attorney General has no authority to appeal the TRO in the Secretary of State’s name. Opp’n of Pls.-Appellees to Emergency Mot. to Stay or Vacate District Ct.’s Order at 11–12 (citing “insufficient time or space to brief this question”). The State of Ohio responded by noting that “Ohio’s Constitution does vest the Attorney General with independent authority to determine litigation, as that result inheres in the very structural decision to have an independently-elected Attorney General.” State’s Resp. to Pls.’ Mot. to Dismiss for Lack of Subject Matter Jurisdiction at 6.
*1009 Under Ohio Rev.Code Ann. § 109.02, the Attorney General is “the chief law officer for the state and all its departments” and shall appear for the State in any tribunal in a case in which the state is a party when required by the governor or the general assembly. The Attorney General, then, is both the State’s chief legal officer and a representative of the people and the public interest, but also a representative of an individual officer-client. See Justin G. Davids, State Attorneys General and the Client–Attorney Relationship: Establishing the Power to Sue State Officers, 38 COLUM. J.L. & SOC. PROBS. 365, 372–76 (2005).
The exact extent of the Attorney General’s litigation authority, however, is not clearly defined under Ohio law.
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The Ohio Supreme Court has not directly addressed the Attorney General’s authority to litigate on behalf of a state officer when that officer no longer wishes to pursue the appeal. Other states’ conclusions regarding the extent of the attorney general’s litigation authority vary widely, and there is no clear consensus. Compare Commonwealth ex rel. Hancock v. Paxton, 516 S.W.2d 865, 867 (Ky.1974) (concluding that “in case of a conflict of duties the Attorney General’s primary obligation is to the Commonwealth, the body politic, rather than to its officers, departments, commissions, or agencies.”) and Sanderson v. Blue Cross & Blue Shield of Ala., 570 So.2d 675, 684 (Ala.1990) (holding that the attorney general had the authority to dismiss legal proceedings over the objection of an executive agency: “As the state’s chief legal officer, the attorney-general has power, both under common law and by statute, to make any disposition of the state’s litigation that he deems for its best interest.”) with Santa Rita Mining Co. v. Dep’t of Prop. Valuation, 111 Ariz. 368, 530 P.2d 360 (Ariz.1975) (holding that the attorney general lacked the authority to maintain an appeal without the approval of his agency client).
Accordingly, the State’s motion to intervene in appeal No. 06–4412 is granted, and the State’s appeal of the district court’s denial of intervention in case No. 06–4421 is granted. In light of our holding that the State of Ohio is entitled to intervention of right under F.R.C.P. 24(a), and wary of determining an issue of Ohio constitutional and common law where unnecessary, we decline to wade into the debate regarding the parameters of the Attorney General’s litigation authority.
V.
[9] [10] [11] The district court’s decision to grant a temporary restraining order, when appealable, is reviewed by this court for abuse of discretion. Beacon J. Publ’g Co., Inc. v. Blackwell, 389 F.3d 683, 684 (6th Cir.2004). To determine whether a TRO should be stayed, the court considers the same factors considered in determining whether to issue a TRO or preliminary injunction. See Summit County, 388 F.3d at 550. Those factors are (1) whether the movant has a strong likelihood of success on the merits, (2) whether the movant would suffer irreparable injury absent a stay, (3) whether granting the stay would cause substantial harm to others, and (4) whether the public interest would be served by granting the stay. Id.; Nader v. Blackwell, 230 F.3d 833, 834 (6th

Cir.2000). “These factors are not prerequisites that must be met, but are interrelated considerations that must be balanced together.” Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir.1991). For example, the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movants will suffer absent the stay. See id.
*1010 [12] In evaluating plaintiffs’ likelihood of success on the merits, we examine first the issue of standing. The district court correctly noted that “an association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Friends of the Earth, Inc. v. Laidlaw Envtl. Sevs. (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). In analyzing standing, the district court focused primarily on the concept that an association may have standing to sue on behalf of its members. We see the more pertinent inquiry here as whether the underlying requirements for associational standing have been met, that is, whether plaintiffs’ members would have standing to sue in their own right and whether the interests at stake are germane to the organization’s purpose.
[13] [14] For an association’s members to “otherwise have standing to sue in their own right,” they must have (1) “suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical”; (2) “the injury has to be fairly traceable to the challenged action of the defendant”; and (3) “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quotations and citations omitted). The record on the standing issue consists only of the unverified complaint.3 In the complaint plaintiff Northeast Ohio Coalition for the Homeless avers that it is a non-profit charitable organization providing services to the homeless. It says that it has helped homeless people register to vote and obtain birth certificates. Plaintiff Service Employees International Union, Local 1199, alleges that it is a labor union that engages in voter registration and other election activities on behalf of its members. These allegations fall far short of asserting that any of plaintiffs’ members have suffered or will imminently suffer a concrete, actual injury traceable to
7

Northeast Ohio Coalition for Homeless and Service Employees..., 467 F.3d 999 (2006)

enforcement of the voter identification requirements. In fact, the complaint contains no reference at all to injury to the plaintiffs’ members. While we have noted that an association challenging election procedures need not identify specific voters who will be wronged by election workers because “by their nature, mistakes cannot be specifically identified in advance,” Sandusky County Democratic Party v. Blackwell, 387 F.3d 565, 574 (6th Cir.2004), there is no reason to apply this reasoning to absentee ballots already submitted. And neither Sandusky County nor any other case suggests that standing can exist in the absence of injury. The scanty information about the plaintiff organizations in the complaint also raises substantial questions about whether the interests at stake here are germane to the organizations’ purposes, which clearly are not primarily related to election or voters’ rights issues. The weakness of plaintiffs’ showing of standing leads us to conclude that their likelihood of success on the merits is not strong.4

3

Plaintiffs submitted a number of declarations detailing

evidence of inconsistent practices employed by various

County Boards of Elections. None of the declarants,

however, asserts any connection with the plaintiff

Organizations. Thus, these declarations are not relevant

to the standing inquiry.

4

Judge McKeague’s concurring opinion correctly notes

that the Northeast Ohio Coalition for the Homeless

apparently seeks to assert a form of representational

standing never recognized by any court—standing on

behalf of the group served by the organization.

*1011 [15] Even if plaintiffs have standing, there is still reason to question whether they are likely to prevail on many of their allegations with respect to absentee ballots cast after the Secretary issued his October 26, 2006, Directive 2006–78 to all County Boards of Elections. Count One alleges a due process violation arising from the vagueness of the laws, causing the election to be conducted in an unfair manner due to nonuniform application of the law and chilling voters’ willingness to exercise their right to vote. Count Two alleges that the vagueness and nonuniform application constitute an equal protection violation. The Directive addresses various provisions that were the subject of plaintiffs’ claims of nonuniform application, including the meanings of the terms “current,” “government document,” and “driver’s license number.”5 Thus, the Directive appears to largely

obviate the Organizations’ concerns with respect to absentee ballots submitted after its issuance. Certainly, its issuance reduces the scope of the disputed issues to a set far smaller than those the TRO encompasses.

5

The Attorney General states that he is willing to work

with plaintiffs to resolve any issues not clarified by the

Directive. An amicable resolution of the dispute is

obviously far preferable to last-minute litigation that

disrupts ongoing electoral processes.

Plaintiffs do not challenge the Secretary’s authority to issue the Directive. Nor do they deny that it will at least prospectively obviate many of their vagueness and inconsistent treatment concerns. Plaintiffs argue, however, that the Directive may have the effect of disadvantaging or disenfranchising some who have already cast their absentee ballots. This speculation is insufficient to satisfy plaintiffs’ burden of demonstrating a strong likelihood of success on the merits. Furthermore, plaintiffs’ contention that confusion stemming from the pre-Directive vagueness of terms and inconsistent practices will have had a deterrent or chilling effect on absentee voters is unsubstantiated and too speculative to be cognizable.
The remaining factors we must consider strongly support staying the district court’s orders. The balance of harms in this case significantly favors granting a stay of the TRO. Each day the TRO is in effect, the Secretary is forced to accept absentee ballots that do not comply with the voter identification requirements enacted by the General Assembly. Should the Secretary prevail after a full adjudication of the merits, it will be difficult, if not impossible, for the voter identification requirements to be applied retroactively to those absentee ballots casts during the TRO. “[T]he State will be irreparably injured in its ability to execute valid laws, which are presumed constitutional, for keeping ineligible voters from voting.”6 Summit County, 388 F.3d at 551. However, the State suffers no harm by being required to preserve all absentee ballots. As to the potential harm facing the Organizations, if they were to prevail on the claims at issue, the vagueness and nonuniformity of the absentee ballot requirements, they would be irreparably harmed only if any noncomplying ballots were disposed of or destroyed and could not later be counted. However, the Organizations *1012 suffer no injury from the continued enforcement of the voter identification requirements to absentee ballots pending a full resolution on the merits. If the Organizations prevail, all absentee ballots can be
8

Northeast Ohio Coalition for Homeless and Service Employees..., 467 F.3d 999 (2006)

counted without regard to the identification requirements. Plaintiffs’ concerns that the Directive may have the effect of disadvantaging or disenfranchising some who have already cast their absentee ballots can be completely protected by preserving the ballots without further injunctive relief. Therefore, the balance of harms significantly favors granting a stay of the TRO, except for its requirement that the Boards of Elections preserve all absentee ballots in their present form.

6

In fact, the TRO has already potentially harmed the

State by enabling absentee ballots to be submitted

without complying with the enjoined provisions. After

full adjudication of the merits, if the Secretary prevails

and the voter requirements are deemed enforceable, the

district court and the parties will have to address how

these ballots should be handled to comport with due

process and equal protection concerns.

The public interest weighs in favor of granting a stay of the TRO. There is a strong public interest in allowing every registered voter to vote. See Summit County, 388 F.3d at 551; see also Purcell v. Gonzalez, 549U.S. 1, 127 S.Ct. 5, 7–8, 166 L.Ed.2d 1, 2006 WL 2988365, at *2 (2006). There is also a strong public interest in permitting legitimate statutory processes to operate to preclude voting by those who are not entitled to vote. See Summit County, 388 F.3d at 551; see also Purcell, 127 S.Ct. at 7–8, 2006 WL 2988365, at *2. Finally, there is a strong public interest in smooth and effective administration of the voting laws that militates against changing the rules in the middle of the submission of absentee ballots. See Summit County, 388 F.3d at 551. As the Supreme Court recently recognized, court orders affecting elections can themselves result in voter confusion and cause the very chilling effect that plaintiffs claim they seek to avoid. See Purcell, 127 S.Ct. at 7–8, 2006 WL 2988365, at *2. The TRO issued by the district court needlessly creates disorder in electoral processes, without any concomitant benefit to the public.
After weighing all the factors required, the court concludes that the district court abused its discretion by granting the TRO.

VI. For the foregoing reasons, we deny the appellee’s motion

to dismiss the appeal, grant the State’s motion to intervene before this court, reverse the district court’s denial of the State’s motion to intervene as of right, and grant in part the Secretary’s motion to stay or vacate the district court’s orders, vacating the district court’s issuance of the TRO except for its requirement that the Boards of Elections preserve all absentee ballots.
McKEAGUE, Circuit Judge, concurring.
I concur in Judge Gibbons’ opinion in its entirety, but write separately to emphasize one point. The notion that plaintiff organizations could obtain emergency injunctive relief from a federal court, relief which has the effect of disrupting an ongoing election process in frustration of the duly enacted will of the people of a sovereign state, based on allegations admittedly unsupported by evidence that any of the organizations’ members has been injured or is threatened with imminent injury, represents a disturbing expansion of associational standing principles.
Counsel for plaintiffs admitted at the hearing on the motion for TRO that plaintiffs could not identify a single member of either plaintiff organization that was affected by the alleged deficiencies in the Voter ID law asserted in support of the motion for TRO. TRO hrg. tr. pp. 39–40. Standing, counsel argued, and the district court held, was premised on the teaching of Sandusky Democratic Party v. Blackwell, 387 F.3d 565, 573–74 (6th Cir.2004).
Sandusky stands for the proposition that political parties and labor organizations have standing to assert the rights of *1013 their members where injury to members, albeit unidentified, was shown to be not speculative or remote, but “real,” “imminent” and “inevitable.” This showing has not been made in the present record. In the wake of Directive 2006–78, issued by the Secretary on Thursday, October 26, 2006, the possibility that any member of plaintiff organizations has suffered or will imminently suffer injury is, as evidenced by the district court’s colloquy with counsel during the hearing on the motion for TRO, purely speculative. The mere possibility of garden variety irregularities does not portend the sort of fundamental unfairness resulting in significant disenfranchisement that would warrant judicial intervention. See Purcell v. Gonzalez, 127 S.Ct. 7–8, 2006 WL 2988365, at *2 (2006) (recognizing a state’s “compelling interest in preserving the integrity of its election process”).
Granted, plaintiffs may yet be able to further develop the
9

Northeast Ohio Coalition for Homeless and Service Employees..., 467 F.3d 999 (2006)

record in the district court hearing on the motion for preliminary injunction set for Wednesday, November 1, 2006. They would be well advised to do so, for it is their burden to establish standing.
In this vein, one further cautionary note is in order. Insofar as plaintiffs’ standing implicitly rests on assertion of the interests of nonmembers for whose interests plaintiff Northeast Ohio Coalition for the Homeless advocates, e.g., homeless persons, plaintiffs are operating outside the bounds of traditional associational standing. They rely on a form of representational or third-party standing for which they have cited no controlling or even persuasive precedent. See Kowalski v. Tesmer, 543 U.S. 125, 129–30, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004) (observing that a party generally cannot rest its claim on legal rights of third parties and that exceptions to this rule have not been looked upon favorably). If plaintiffs mean to rely on the interests of nonmembers to make their case for injunctive relief, they should be prepared to identify legal authority for such an innovation in the established principles of associational or representational standing.
ARTHUR J. TARNOW, District Judge, concurring in part and dissenting in part.
I concur with the Majority’s analysis of the jurisdictional question raised and of the State of Ohio’s motion to intervene. I further agree with Majority’s statement of the standard of review and the law concerning the district court’s grant of a temporary restraining order and/or preliminary injunction.
However, I dissent from the Majority’s opinion that the district court abused its discretion when it granted the Plaintiffs’ request for a temporary restraining order. The district court’s four part analysis in determining whether

to grant the plaintiffs’ request for a temporary restraining order correctly stated the law and was well reasoned in its application of the four factors. Applying the abuse of discretion standard, I find that there was no abuse of discretion. Moreover, in a recent voting rights case involving a temporary restraining order, the Supreme Court stated that “it was still necessary, as a procedural matter, for the Court of Appeals to give deference to the discretion of the District Court.” Purcell v. Gonzalez, 549U.S. 1, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006)(per curiam ). I am of the opinion that the Majority has failed to give this required deference to the district court’s decision.
Finally, as the Majority noted in footnote 3, the Attorney General has stated in his Motion to Stay the District Court’s Order that it is committed to working towards a consent TRO that obviates any *1014 risk of disenfranchisement. This is a discussion/negotiation that should take place immediately.
In a recent case from the Northern District of Ohio, the Secretary of State came to an agreement with a group of concerned voters over Ohio Revised Code Section 3505.20(A), which required naturalized citizens in Ohio to provide official documentation to prove citizenship if challenged by a poll worker. See Boustani, et al. v. Blackwell, 460 F.Supp.2d 822, 2006 WL 3064102, 2006 U.S. Dist.LEXIS 72422 (N.D.Ohio Oct. 4,2006) see also Boustani et al. v. Blackwell, 460 F.Supp.2d 822, 2006 WL 3064102, 2006 U.S. Dist. LEXIS 77989 (N.D.Ohio Oct. 26, 2006). As history in Ohio proves, the parties’ concerns of an orderly election that guards against the risk disenfranchisement can and has been achieved through mutual agreement.

10

 
 Service Employees Intern. Union Local 1 v. Husted, 698 F.3d 341 (2012)

698 F.3d 341 United States Court of Appeals,
Sixth Circuit.
SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 1, et al., Plaintiffs–Appellees,
v. Jon HUSTED, Defendant–Appellant, State of Ohio, Intervenor Defendant–Appellant, Timothy M. Burke, et al., Defendants.
No. 12–4264. | Oct. 31, 2012. | Rehearing Denied Dec. 5, 2012.
Synopsis Background: Nonprofit organization representing homeless, and unions and community organizing group filed § 1983 actions against Ohio Secretary of State challenging constitutionality of several provisions of Ohio law requiring voters to provide one of several types of identification in order to cast regular ballot in state and federal elections held in Ohio. State and political party intervened. The United States District Court for the Southern District of Ohio, Algenon L. Marbley, J., denied defendants’ request to vacate consent decree, 2012 WL 2711393, and entered preliminary injunction directing Secretary to count provisional ballots that were, due to poll-worker error, cast at the right multi-precinct polling-place, but for wrong precinct, ––– F.Supp.2d ––––, 2012 WL 3643064. State and Secretary appealed. The Court of Appeals, 696 F.3d 580, affirmed in relevant part. Plaintiffs moved to expand preliminary injunction to mandate the counting of provisional ballots that were cast at the wrong multi-precinct polling place. The District Court, Marbley, J., 2012 WL 5334080, granted injunction. Secretary moved for stay pending appeal.
[Holding:] The Court of Appeals held that defendants were highly likely to prevail on appeal of district court order expanding preliminary injunction.
Stay granted.
Attorneys and Law Firms

*342 Stephen P. Berzon, Barbara Jane Chisholm, Danielle E. Leonard, Stacey Monica Leyton, Altshuler Berzon, San Francisco, CA, Cathrine J. Harshman, Michael J. Hunter, Hunter, Carnahan, Shoub & *343 Byard, Columbus, OH, for Plaintiffs–Appellees.

Erin Elizabeth Butcher–Lyden, Aaron David Epstein, Peter K. Glenn–Applegate, Office of the Ohio Attorney General, Columbus, OH, for Defendant–Appellant.

Stephen P. Carney, Richard N. Coglianese, Assistant Attorney General, Michael Jason Hendershot, Office of the Ohio Attorney General, Columbus, OH, for Intervenor Defendant–Appellant. Before: GIBBONS and COOK, Circuit Judges; ROSENTHAL, District Judge.*

*

The Honorable Lee H. Rosenthal, United States District

Judge for the Southern District of Texas, sitting by

designation.

Opinion
OPINION
PER CURIAM.
The State of Ohio and Jon Husted, Ohio’s Secretary of State (“Secretary”), move for a stay pending appeal of the district court’s October 26, 2012 order granting the plaintiffs’ renewed motion for a preliminary injunction. The order requires Ohio and the Secretary to count provisional ballots cast in the wrong polling place due to poll-worker error—so-called wrong-place/wrong-precinct ballots—in the November 6, 2012 election. We GRANT the motion.
We recently affirmed a preliminary injunction entered by the district court on August 27, 2012, directing Ohio and the Secretary to count right-place/wrong-precinct provisional ballots caused by poll-worker error in the upcoming election. See Ne. Ohio Coal. for the Homeless v. Husted, 696 F.3d 580 (6th Cir.2012) [hereinafter NEOCH ]. In that opinion, we noted that the August 27 order did not require the counting of wrong-place/wrong-precinct ballots. Id. at 588–91. But we expressed no view on whether the refusal to count
1

Service Employees Intern. Union Local 1 v. Husted, 698 F.3d 341 (2012)

such ballots imposed an unconstitutional burden on voters, leaving the question open for possible future litigation. Id. at 590 n. 6. On October 17, the plaintiffs filed a renewed motion for a preliminary injunction in the district court that would mandate the counting of wrong-place/wrong-precinct ballots, reiterating a request made in their original June 22, 2012 motion for a preliminary injunction but not included in the August 27 order. The district court granted the renewed motion after a hearing. Ohio and the Secretary unsuccessfully moved for a stay of the preliminary injunction during the hearing, prompting this emergency appeal.
[1] [2] [3] We review four factors when evaluating a stay pending appeal under Federal Rule of Appellate Procedure 8(a):
(1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay.
Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir.1991). “These factors are not prerequisites that must be met, but are interrelated considerations that must be balanced together.” Id. As the moving party, Ohio has the burden of showing it is entitled to a stay. Overstreet v. Lexington–Fayette Urban Cnty. Gov’t, 305 F.3d 566, 573 (6th Cir.2002).
[4] We begin by considering “the likelihood that the district court’s preliminary injunction order will be upheld on appeal.” *344 Coal. to Defend Affirmative Action v. Granholm, 473 F.3d 237, 244 (6th Cir.2006). This involves examination of the four factors the district court considered when assessing the plaintiffs’ motion for a preliminary injunction—likelihood of success on the merits, irreparable harm to the moving party, harm to other parties, and the public interest. Overstreet, 305 F.3d at 573. While a “grant or denial of a preliminary injunction is reviewed for an abuse of discretion,” we are mindful that a preliminary injunction is an “extraordinary” form of relief and that the moving party in the district court has the “burden of proving that the circumstances clearly demand it.” Id.

[5] Ohio and the Secretary are quite likely to demonstrate on appeal that plaintiffs failed to show a strong likelihood of success on the merits of their constitutional claims with respect to wrong-place/wrong-precinct ballots. The salient feature of the right-place/wrong-precinct problem addressed in NEOCH is the disenfranchisement of voters who arrive at the correct polling place (and are otherwise eligible to vote) solely as a consequence of poll-worker error, a situation caused by Ohio’s system of multi-precinct polling places. NEOCH, 696 F.3d at 592–98. Yet, the district court’s expanded preliminary injunction glosses over this distinguishing feature—that the voter arrived at the correct polling place—by finding that Ohio law imposes an “identical” burden on voters who cast wrong-place/wrong-precinct ballots. (R. 90, Op. & Order at 9, PageID # 6232.) In other words, because poll workers make the same errors, the voter burden must be the same. This conclusion absolves voters of all responsibility for voting in the correct precinct or correct polling place by assessing voter burden solely on the basis of the outcome—i.e., the state’s ballot validity determination. While poll-worker error may contribute to the occurrence of wrong-place/wrong-precinct ballots, the burden on these voters certainly differs from the burden on right-place/wrong-precinct voters—and likely decreases—because the wrong-place/wrong-precinct voter took affirmative steps to arrive at the wrong polling location. The district court abused its discretion by failing to distinguish these burdens.
Though voters must rely heavily on poll workers to direct them to the proper precinct in a multi-precinct voting place, they are not as dependent on poll workers to identify their correct polling place. Ohio law requires election officials to provide notice to voters of where they are eligible to vote after they register or if their precinct changes. See Ohio Rev.Code § 3503.16(E) (change in address of voter); id. § 3503.17 (change in precinct boundaries); id. § 3503.19(C)(1) (new voters). Furthermore, information about where to vote is easily accessible by calling county boards of elections or accessing the Secretary’s webpage. See, e.g., “Find Your Polling Location,” Ohio Sec’y of State, http://www.sos.state.oh.us/SOS/pollinglocation.aspx? page=361. In our view, a voter who fails to utilize these tools and arrives at the wrong polling location cannot be said to be blameless in the same way as a right-place/wrong-precinct voter. And the district court’s findings of thousands of rejected wrong-precinct ballots overstates the sparse evidence of poll workers sending voters to the wrong polling location. (R. 90, Op. & Order
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Service Employees Intern. Union Local 1 v. Husted, 698 F.3d 341 (2012)

at 10 n. 3, PageID # 6233; see also SEIU Appellees’ Resp. Br. at 14.)

Even assuming that Ohio law imposes an “identical” burden on wrong-place/wrong-precinct voters, the state’s interest in enforcing a particular rule varies according to the impact of non-enforcement on its legitimate interests. We suggested in the NEOCH opinion that shifting all *345 responsibility for determining the proper polling place to poll workers would have far-reaching implications for Ohio’s precinct-based voting system that go well beyond the issues created by multi-precinct polling places. NEOCH, 696 F.3d at 589–90 (describing the “wrong place, wrong precinct” remedy as a “vote anywhere” remedy).

Moreover, the district court’s injunction, in disregarding

the importance of voting place, has a significant effect on

the State’s legitimate interest in maintaining its

precinct-based voting system. Unlike the prior injunction,

the expanded injunction opens the door for steering

last-second voters to convenient (though incorrect)

polling places, in the hopes that some of the votes will

count. This perverse incentive did not exist with

right-place/wrong-precinct voters; voters who make the

effort to arrive at the correct polling place would have no

reason to miscast their vote at the wrong table or in the

wrong line. And even if shorter precinct lines presented

such an incentive for a handful of those voters, the district

court’s August 27 preliminary injunction requires

poll-workers to inform voters that a miscast vote would

not count. See Ohio Sec’y of State, Form 12–D, available

at

http://

www.sos.state.oh.us/sos/upload/elections/forms/12–D.pdf.

These considerations lead us to conclude that Ohio and

the Secretary will more than likely demonstrate on appeal

that the plaintiffs failed to “show more than a mere

possibility of success” on the merits of their constitutional

claim. Six Clinics Holding Corp., II v. Cafcomp Sys., Inc.,

119 F.3d 393, 402 (6th Cir.1997).

Turning to the plaintiffs’ assertions of irreparable harm, the obstacles the plaintiffs will face in defending the wrong-place/wrong-precinct injunction on appeal become manifest. The plaintiffs concede that they asked for wrong-place/wrong-precinct relief in their original motion for a preliminary injunction. (R. 84, Renewed Mot. for Prelim. Inj. 2, at # 6095). But the district court’s August 27 order, though ambiguous at points, did not grant that relief, and neither did the Secretary’s directive implementing the district court’s ruling. See Ohio Sec’y of State, Directive 2012–44, at 1 (Sept. 11, 2012),

available

at

http://www.sos.state.oh.

us/SOS/Upload/elections/directives/2012/Dir2012–44.pdf.

Furthermore, plaintiffs’ original appellate briefing tacitly

acknowledged the district court’s failure to grant broader

relief for wrong-place/wrong-precinct ballots by arguing

that the record—not the district court’s opinion—justified

such relief. (SEIU Appellees’ Br. at 81–85.) Accordingly,

it is fair to say that, following our decision in NEOCH,

the plaintiffs renewed their request for broader injunctive

relief by repeating arguments with no new facts or law to

support them.

[6] [7] As a general rule, last-minute injunctions changing election procedures are strongly disfavored. Purcell v. Gonzalez, 549 U.S. 1, 4–5, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006) (“Court orders affecting elections ... can themselves result in voter confusion.... As an election draws closer, that risk will increase.”); Ne. Coal. for the Homeless v. Blackwell, 467 F.3d 999, 1012 (6th Cir.2006) (“[T]here is a strong public interest in smooth and effective administration of the voting laws that militates against changing the rules in the middle of submission of absentee ballots.”); Summit Cnty., 388 F.3d at 551 (“It is particularly harmful to such interests to have the rules changed at the last minute.”). The application of that principle is particularly appropriate when a party does not seek to clarify or expand the scope of relief after having an opportunity to do so, in the district court and on appeal, in the months before an election, and then asks for reconsideration *346 of that relief days before an election. The plaintiffs’ failure to act earlier in pursuing these claims significantly undermines their assertions of irreparable harm in the absence of the injunction.

Meanwhile, the harm to Ohio, the Secretary, and the general public caused by issuance of this injunction easily outweighs any potential harm to the plaintiffs if their view of the law is eventually determined to be correct. The injunction, it should be noted, both requires the expedited issuance of new instructions to poll workers less than two weeks before the election and refuses enforcement of a presumptively constitutional policy regarding voter eligibility. Blackwell, 467 F.3d at 1012 (“There is ... a strong public interest in permitting legitimate statutory processes to operate to preclude voting by those who are not entitled to vote.”). Moreover, the inevitable result of the injunction’s dramatic changes to Ohio’s precinct voting system will be interference with orderly election administration and greater confusion among poll workers and voters. Id. Early voting is already underway in Ohio. See “Voting Early in Person,” Ohio Sec’y of State, http://www.sos.state.oh.us/SOS/elections/Voters/absentee
3

Service Employees Intern. Union Local 1 v. Husted, 698 F.3d 341 (2012)

/inperson.aspx. Changing election rules in this manner while voting is occurring disrupts the electoral process and threatens its fairness. These harms to the public and its elected government are significant ones. We therefore find that Ohio and the Secretary have demonstrated a high likelihood of success on their appeal of the October 27 preliminary injunction.
[8] We conclude by briefly addressing the three final factors of the test for granting a stay—irreparable harm to Ohio and the Secretary absent a stay, irreparable harm to others if the stay is granted, and the public interest in

granting the stay. For the reasons stated previously in reviewing Ohio’s likelihood of success on an appeal of the preliminary injunction, we agree with Ohio and the Secretary that all three of these factors weigh in their favor. Accordingly, the issuance of a stay is appropriate.
For these reasons, we GRANT Ohio and the Secretary’s emergency motion to stay the district court’s October 26, 2012 order.

4