U.S. District Court U.S. District Court for the Northern District of Oklahoma (Tulsa)
CIVIL DOCKET FOR CASE #: 4:20-cv-00211-JED-JFJ

DCCC et al v. Ziriax et al Assigned to: Chief Judge John E Dowdell Referred to: Magistrate Judge Jodi F Jayne Cause: 28:1331 Fed. Question

Date Filed: 05/18/2020 Date Terminated: 09/17/2020 Jury Demand: None Nature of Suit: 950 Constitutional State Statute Jurisdiction: Federal Question

Plaintiff

DCCC

represented by Ariel Brynne Glickman Perkins Coie LLP 700 Thirteenth Street, NW, Suite 800 Washington, DC 20005 202-654-6372 Email: aglickman@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles Grant Curtis , Jr Perkins Coie LLP 33 East Main Street Suite 201 Madison, WI 53703-3095 608-663-5411 Fax: 608-663-7499 Email: ccurtis@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Lee Anstaett Perkins Coie LLP 33 East Main Street Suite 201 Madison, WI 53703 608-663-7460 Fax: 608-663-7499 Email: danstaett@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frank W Frasier , III Frasier Frasier & Hickman

1700 SW BLVD #100 TULSA, OK 74107 918-584-4724 Fax: 918-583-5637 Email: frasier@tulsa.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
John M Devaney Perkins Coie LLP 700 13th St NW Suite 800 Washington, DC 20005 202-654-6200 Email: jdevaney@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc Elias Perkins Coie LLP 700 13th St NW Ste 800 Washington, DC 20005 202-654-6200 Email: melias@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sopen B. Shah Perkins Coie LLP 33 East Main Street Suite 201 Madison, WI 53703 608-663-7460 Fax: 608-663-7499 Email: sshah@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Will McDonell Conley Perkins Coie LLP 33 East Main Street Suite 201 Madison, WI 53703 608-663-7460 Fax: 608-663-7499

Plaintiff Oklahoma Democratic Party
V.

Email: WConley@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ariel Brynne Glickman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Grant Curtis , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Lee Anstaett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank W Frasier , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John M Devaney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc Elias (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sopen B. Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Will McDonell Conley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Paul Ziriax in his official capacity as the Secretary of Oklahoma State Election Board
Defendant Tom Montgomery in his official capacity as Chairman of the Oklahoma State Election Board

represented by Bryan Cleveland Office of the Oklahoma Attorney General Solicitor General Unit 313 NE 21st Street Oklahoma City, OK 73105 405-522-1961 Email: bryan.cleveland@oag.ok.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mithun S Mansinghani Office of the Attorney General (OKC 313) 313 NE 21ST ST OKLAHOMA CITY, OK 73105 405-522-3292 Fax: 405-522-0608 Email: mithun.mansinghani@oag.ok.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas R Schneider Oklahoma Office of Attorney General Legal Counsel 313 N.E. 21st Oklahoma City, OK 73105 405-522-4413 Email: thomas.schneider@oag.ok.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bryan Cleveland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mithun S Mansinghani (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Tim Mauldin Dr. Tim Mauldin in his official capacity as Vice-Chairman of the Oklahoma State Election Board
Defendant Heather Mahieu Cline in her official capacity as a member of the Oklahoma State Election Board
Defendant Jerry Buchanan in his official capacity as an alternate member of the Oklahoma State Election Board

Thomas R Schneider (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bryan Cleveland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mithun S Mansinghani (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas R Schneider (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bryan Cleveland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mithun S Mansinghani (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas R Schneider (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bryan Cleveland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mithun S Mansinghani (See above for address) LEAD ATTORNEY

Defendant
Debi Thompson in her official capacity as an alternate member of the Oklahoma State Election Board

ATTORNEY TO BE NOTICED
Thomas R Schneider (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bryan Cleveland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mithun S Mansinghani (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas R Schneider (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/18/2020 05/18/2020
05/18/2020 05/18/2020 06/03/2020
06/03/2020

# Docket Text

1 CIVIL COVER SHEET by DCCC, Oklahoma Democratic Party (With attachments) (Frasier, Frank) (Entered: 05/18/2020)

COMPLAINT against Jerry Buchanan, Heather Mahieu Cline, Tim

2

Mauldin, Tom Montgomery, Debi Thompson, Paul Ziriax (paid $400

filing fee; receipt number AOKNDC-2207162) by DCCC, Oklahoma

Democratic Party (Frasier, Frank) (Entered: 05/18/2020)

3 ATTORNEY APPEARANCE by Frank W Frasier, III on behalf of DCCC, Oklahoma Democratic Party (Frasier, Frank) (Entered: 05/18/2020)

4 SUMMONS Issued by Court Clerk as to All Defendants (alg, Dpty Clk) (Entered: 05/18/2020)

5 MOTION for Attorney(s) Sopen B. Shah to be Admitted Pro Hac Vice (paid $50 PHV fee; receipt number AOKNDC-2213667) by DCCC, Oklahoma Democratic Party (With attachments) (Frasier, Frank) (Entered: 06/03/2020)

6 MOTION for Attorney(s) Ariel Brynne Glickman to be Admitted Pro Hac Vice (paid $50 PHV fee; receipt number AOKNDC-2213670) by DCCC, Oklahoma Democratic Party (With attachments) (Frasier, Frank) (Entered: 06/03/2020)

06/03/2020 06/03/2020 06/03/2020 06/03/2020
06/08/2020 06/08/2020 06/08/2020 06/08/2020 06/08/2020

7 MOTION for Attorney(s) Mark Erik Elias to be Admitted Pro Hac Vice (paid $50 PHV fee; receipt number AOKNDC-2213671) by DCCC, Oklahoma Democratic Party (With attachments) (Frasier, Frank) (Entered: 06/03/2020)
8 MOTION for Attorney(s) John Michael Devaney to be Admitted Pro Hac Vice (paid $50 PHV fee; receipt number AOKNDC-2213672) by DCCC, Oklahoma Democratic Party (With attachments) (Frasier, Frank) (Entered: 06/03/2020)
9 MOTION for Attorney(s) Charles G. Curtis, Jr. to be Admitted Pro Hac Vice (paid $50 PHV fee; receipt number AOKNDC-2213673) by DCCC, Oklahoma Democratic Party (With attachments) (Frasier, Frank) (Entered: 06/03/2020)
10 MINUTE ORDER by Chief Judge John E Dowdell The Motions for Admission Pro Hac Vice of Sopen B. Shah (Doc. 5), Ariel Brynne Glickman (Doc. 6), Mark Erik Elias (Doc. 7), John Michael Devaney (Doc. 8) and Charles G. Curtis Jr. (Doc. 9) are granted. Counsel may appear in this matter on behalf of the plaintiffs. ; granting 5 Motion for Admission Pro Hac Vice; granting 6 Motion for Admission Pro Hac Vice; granting 7 Motion for Admission Pro Hac Vice; granting 8 Motion for Admission Pro Hac Vice; granting 9 Motion for Admission Pro Hac Vice (This entry is the Official Order of the Court. No document is attached.) (SAS, Chambers) (Entered: 06/03/2020)
11 SUMMONS Returned Executed re: Tom Montgomery (Re: 2
Complaint ) by DCCC, Oklahoma Democratic Party (Frasier, Frank) (Entered: 06/08/2020)
12 SUMMONS Returned Executed re: Heather Mahieu Cline (Re: 2
Complaint ) by DCCC, Oklahoma Democratic Party (Frasier, Frank) (Entered: 06/08/2020)
13 SUMMONS Returned Executed re: Tim Mauldin (Re: 2
Complaint ) by DCCC, Oklahoma Democratic Party (Frasier, Frank) (Entered: 06/08/2020)
14 SUMMONS Returned Executed re: Debi Thompson (Re: 2
Complaint ) by DCCC, Oklahoma Democratic Party (Frasier, Frank) (Entered: 06/08/2020)
15 SUMMONS Returned Executed re: Paul Ziriax (Re: 2 Complaint ) by DCCC, Oklahoma Democratic Party (Frasier, Frank) (Entered: 06/08/2020)

06/09/2020 06/09/2020 06/11/2020

16 MOTION for Attorney(s) Will M. Conley to be Admitted Pro Hac Vice (paid $50 PHV fee; receipt number AOKNDC-2216916) by DCCC, Oklahoma Democratic Party (With attachments) (Frasier, Frank) (Entered: 06/09/2020)

17 MINUTE ORDER by Chief Judge John E Dowdell The Motion for Admission Pro Hac Vice (Doc. 16) of attorney Will M. Conley is granted. Mr. Conley may appear in this matter on behalf of the plaintiffs. ; granting 16 Motion for Admission Pro Hac Vice (This entry is the Official Order of the Court. No document is attached.) (SAS, Chambers) (Entered: 06/09/2020)

AMENDED COMPLAINT against Jerry Buchanan, Heather Mahieu

18

Cline, Tim Mauldin, Tom Montgomery, Debi Thompson, Paul

06/11/2020 06/11/2020 06/17/2020
06/17/2020
06/17/2020

Ziriax (Re: 2 Complaint ) by DCCC, Oklahoma Democratic Party (Frasier, Frank) (Entered: 06/11/2020)
19 CORPORATE DISCLOSURE STATEMENT by DCCC (Frasier, Frank) (Entered: 06/11/2020)
20 CORPORATE DISCLOSURE STATEMENT by Oklahoma Democratic Party (Frasier, Frank) (Entered: 06/11/2020)
21 ATTORNEY APPEARANCE by Mithun S Mansinghani on behalf of All Defendants [Note: Attorney Mithun S Mansinghani added to party Jerry Buchanan(pty:dft), Attorney Mithun S Mansinghani added to party Heather Mahieu Cline(pty:dft), Attorney Mithun S Mansinghani added to party Tim Mauldin(pty:dft), Attorney Mithun S Mansinghani added to party Tom Montgomery (pty:dft), Attorney Mithun S Mansinghani added to party Debi Thompson(pty:dft), Attorney Mithun S Mansinghani added to party Paul Ziriax(pty:dft).] (Mansinghani, Mithun) (Entered: 06/17/2020)
22 ATTORNEY APPEARANCE by Bryan Cleveland on behalf of All Defendants [Note: Attorney Bryan Cleveland added to party Jerry Buchanan(pty:dft), Attorney Bryan Cleveland added to party Heather Mahieu Cline(pty:dft), Attorney Bryan Cleveland added to party Tim Mauldin(pty:dft), Attorney Bryan Cleveland added to party Tom Montgomery (pty:dft), Attorney Bryan Cleveland added to party Debi Thompson(pty:dft), Attorney Bryan Cleveland added to party Paul Ziriax(pty:dft).] (Cleveland, Bryan) (Entered: 06/17/2020)
23 ATTORNEY APPEARANCE by Thomas R Schneider on behalf of All Defendants [Note: Attorney Thomas R Schneider added to party Jerry Buchanan(pty:dft), Attorney Thomas R Schneider added to party Heather Mahieu Cline(pty:dft), Attorney Thomas R Schneider added to party Tim Mauldin(pty:dft), Attorney Thomas R Schneider added to party Tom Montgomery (pty:dft), Attorney Thomas R Schneider added to party Debi Thompson(pty:dft), Attorney Thomas R

06/19/2020 06/23/2020 06/23/2020 06/25/2020 06/25/2020 06/30/2020 07/06/2020 07/10/2020
07/24/2020

Schneider added to party Paul Ziriax(pty:dft).] (Schneider, Thomas) (Entered: 06/17/2020)

MOTION to Dismiss Party J. Buchanan; H. Cline; D. Thompson; Dr.

24

Mauldin; & T. Montgomery , MOTION to Dismiss , MOTION to

Transfer Case to Other District by Jerry Buchanan, Heather Mahieu

Cline, Tim Mauldin, Tom Montgomery, Debi Thompson, Paul Ziriax

(Mansinghani, Mithun) (Entered: 06/19/2020)

25 ATTORNEY APPEARANCE by Sopen B. Shah on behalf of All Plaintiffs [Note: Attorney Sopen B. Shah added to party DCCC(pty:pla), Attorney Sopen B. Shah added to party Oklahoma Democratic Party(pty:pla).] (Shah, Sopen) (Entered: 06/23/2020)

26 ATTORNEY APPEARANCE by Will McDonell Conley on behalf of All Plaintiffs [Note: Attorney Will McDonell Conley added to party DCCC(pty:pla), Attorney Will McDonell Conley added to party Oklahoma Democratic Party(pty:pla).] (Conley, Will) (Entered: 06/23/2020)

27 ATTORNEY APPEARANCE by Charles Grant Curtis, Jr on behalf of All Plaintiffs [Note: Attorney Charles Grant Curtis, Jr added to party DCCC(pty:pla), Attorney Charles Grant Curtis, Jr added to party Oklahoma Democratic Party(pty:pla).] (Curtis, Charles) (Entered: 06/25/2020)

28 ATTORNEY APPEARANCE by Ariel Brynne Glickman on behalf of All Plaintiffs [Note: Attorney Ariel Brynne Glickman added to party DCCC(pty:pla), Attorney Ariel Brynne Glickman added to party Oklahoma Democratic Party(pty:pla).] (Glickman, Ariel) (Entered: 06/25/2020)

29 ATTORNEY APPEARANCE by Marc Elias on behalf of DCCC, Oklahoma Democratic Party [Note: Attorney Marc Elias added to party DCCC(pty:pla), Attorney Marc Elias added to party Oklahoma Democratic Party(pty:pla).] (Elias, Marc) (Entered: 06/30/2020)

30 ATTORNEY APPEARANCE by John M Devaney on behalf of All Plaintiffs [Note: Attorney John M Devaney added to party DCCC(pty:pla), Attorney John M Devaney added to party Oklahoma Democratic Party(pty:pla).] (Devaney, John) (Entered: 07/06/2020)

31

RESPONSE in Opposition to Motion (Re: 24 MOTION to

Dismiss Party J. Buchanan; H. Cline; D. Thompson; Dr. Mauldin; &

T. Montgomery MOTION to Dismiss MOTION to Transfer Case to

Other District ) by DCCC, Oklahoma Democratic Party ; (Frasier,

Frank) (Entered: 07/10/2020)

32

REPLY to Response to Motion (Re: 24 MOTION to Dismiss

Party J. Buchanan; H. Cline; D. Thompson; Dr. Mauldin; & T.

08/04/2020 33

Montgomery MOTION to Dismiss MOTION to Transfer Case to Other District ) by Jerry Buchanan, Heather Mahieu Cline, Tim Mauldin, Tom Montgomery, Debi Thompson, Paul Ziriax ; (Mansinghani, Mithun) (Entered: 07/24/2020)
ORDER by Chief Judge John E Dowdell ; denying 24 Motion to

Dismiss Party; denying 24 Motion to Dismiss; denying 24

08/04/2020 34

Motion to Transfer Case to Other District (JED1, Chambers) (Entered: 08/04/2020)
ORDER by Chief Judge John E Dowdell Setting a hearing on Plaintiff's requests for injunctive relief for 8/26/2020 at 10:00 a.m., setting/resetting deadline(s)/hearing(s): ( Miscellaneous Deadline set for 8/19/2020, Miscellaneous Hearing set for 8/26/2020 at 10:00 AM

08/12/2020 08/12/2020
08/12/2020 08/12/2020 08/13/2020

before Chief Judge John E Dowdell) (Re: 18 Amended Complaint ) (lml, Dpty Clk) (Entered: 08/04/2020)
35 MOTION for leave to depose Defendant Paul Ziriax by DCCC, Oklahoma Democratic Party (Frasier, Frank) Modified on 8/13/2020; this is a two-part motion of which one part was filed - see 39 for Motion to Expedite Ruling (sac, Dpty Clk). (Entered: 08/12/2020)
36 MINUTE ORDER by Chief Judge John E Dowdell , referring motion(s) to Magistrate Judge Jodi F Jayne (Re: 35 MOTION for leave to depose Defendant Paul Ziriax and request for expedited consideration ) (This entry is the Official Order of the Court. No document is attached.) (lml, Dpty Clk) (Entered: 08/12/2020)
39 MOTION to Expedite Ruling (submitted as part of 35 ) (Re: 35 MOTION for leave to depose Defendant Paul Ziriax ) by DCCC, Oklahoma Democratic Party (sac, Dpty Clk) (Entered: 08/13/2020)
***Motion(s) Referred to Magistrate Judge Jayne (Re: 39 MOTION to to Expedite Ruling (submitted as part of 35 ) ) (sac, Dpty Clk) (Entered: 08/13/2020)
37 MINUTE ORDER by Magistrate Judge Jodi F Jayne Plaintiff's Motion for Leave to Take Deposition (ECF No. 35) is set for an expedited telephone hearing on Friday, August 14, 2020, at 10:00 am. Counsel for Plaintiff is directed to arrange the conference call and contact the Courtroom Deputy at stephanie_cope@oknd.uscourts.gov and all counsel of the conference number, setting/resetting deadline(s)/hearing(s): ( Motion Hearing set for 8/14/2020 at 10:00 AM before Magistrate Judge Jodi F Jayne) (Re: 35 MOTION for leave to depose Defendant Paul Ziriax and request for expedited

08/13/2020
08/13/2020 08/14/2020 08/17/2020 08/17/2020 08/18/2020 08/18/2020 08/18/2020

consideration ) (This entry is the Official Order of the Court. No document is attached.) (sdc, Dpty Clk) (Entered: 08/13/2020)

38 MINUTE ORDER by Magistrate Judge Jodi F Jayne resetting Telephone Conference (TIME CHANGE ONLY), setting/resetting deadline(s)/hearing(s): ( Motion Hearing set for 8/14/2020 at 11:00 AM before Magistrate Judge Jodi F Jayne) (Re: 35 MOTION for leave to depose Defendant Paul Ziriax and request for expedited consideration , 37 Minute Order,,,, Setting/Resetting Deadline(s)/Hearing(s),,, ) (This entry is the Official Order of the Court. No document is attached.) (sdc, Dpty Clk) (Entered: 08/13/2020)

40 RESPONSE in Opposition to Motion (Re: 35 MOTION for leave to depose Defendant Paul Ziriax ) by Jerry Buchanan, Heather Mahieu Cline, Tim Mauldin, Tom Montgomery, Debi Thompson, Paul Ziriax ; (Mansinghani, Mithun) (Entered: 08/13/2020)

41 MINUTES of Proceedings - held before Magistrate Judge Jodi F Jayne: Motion Hearing held on 8/14/2020 ; striking/terminating deadline(s)/Hearing(s); granting 35 Motion for Miscellaneous Relief (Re: 35 MOTION for leave to depose Defendant Paul Ziriax ) (Court Reporter: C1) (crp, Dpty Clk) (Entered: 08/14/2020)

MOTION Joint Request for Status Confernce by DCCC, Oklahoma

42

Democratic Party (Frasier, Frank) (Entered: 08/17/2020)

43 MINUTE ORDER by Chief Judge John E Dowdell As Judge Jayne already ruled expeditiously on Doc. 35, the request for expedited ruling (Doc. 39) is moot ; finding as moot 39 Motion to Expedite Ruling (This entry is the Official Order of the Court. No document is attached.) (JED1, Chambers) (Entered: 08/17/2020)

44 MOTION for Attorney(s) David L. Anstaett to be Admitted Pro Hac Vice (paid $50 PHV fee; receipt number AOKNDC-2249948) by DCCC, Oklahoma Democratic Party (With attachments) (Frasier, Frank) (Entered: 08/18/2020)

45 MINUTE ORDER by Chief Judge John E Dowdell The Motion for Admission Pro Hac Vice of attorney David L. Anstaett (Doc. 44) is granted. Mr. Anstaett may appear in this matter on behalf of the plaintiffs. ; granting 44 Motion for Admission Pro Hac Vice (This entry is the Official Order of the Court. No document is attached.) (SAS, Chambers) (Entered: 08/18/2020)

46 ANSWER (Re: 18 Amended Complaint ) by Jerry Buchanan, Heather Mahieu Cline, Tim Mauldin, Tom Montgomery, Debi Thompson, Paul Ziriax (Mansinghani, Mithun) (Entered: 08/18/2020)

08/19/2020 08/20/2020
08/21/2020 08/21/2020

MOTION for Preliminary Injunction by DCCC, Oklahoma

47

Democratic Party (With attachments) (Frasier, Frank) (Entered:

08/19/2020)

48 RESPONSE to Order to Show Cause (Re: 34 Order,, Setting/Resetting Deadline(s)/Hearing(s),,, ) by Jerry Buchanan, Heather Mahieu Cline, Tim Mauldin, Tom Montgomery, Debi Thompson, Paul Ziriax (With attachments) (Mansinghani, Mithun) (Entered: 08/20/2020)

49 ATTORNEY APPEARANCE by David Lee Anstaett on behalf of All Plaintiffs (Anstaett, David) (Entered: 08/21/2020)

50 MINUTE ORDER by Chief Judge John E Dowdell The Joint Request for a Status Conference (Doc. 42) is granted. The Status Conference will take place via phone conference on 8/24/2020 at 2:00 p.m. The courtroom deputy will send an e-mail with call-in instructions forthwith. ; setting/resetting deadline(s)/hearing(s): ( Status Hearing set for 8/24/2020 at 02:00 PM before Chief Judge John E Dowdell);

08/24/2020 08/24/2020

granting 42 Motion for Miscellaneous Relief (This entry is the Official Order of the Court. No document is attached.) (lml, Dpty Clk) (Entered: 08/21/2020)

51 MINUTE ORDER by Chief Judge John E Dowdell At the parties' joint request (Doc. 42), the Court conducted an off-record status conference by telephone on August 24, 2020 to discuss the hearing scheduled for August 26, 2020. During the status conference, the plaintiffs and defendants agreed that they wish the Court proceed upon the written record provided by the parties in their submissions, as well as any additional evidence the parties may wish to present during the August 26 hearing. The plaintiffs and defendants also agree that it is appropriate for the Court to advance the trial on the merits of a potential permanent injunction and consolidate it with the hearing on the preliminary injunction. Accordingly, the Court will consider the parties' written evidentiary submissions, exhibits, and legal arguments, as well as any additional witness testimony the parties wish to provide at the August 26 hearing. By the end of today, the parties shall exchange the names of any witnesses they intend to call at the hearing and shall inform the Court as well. In addition, the parties shall submit proposed findings and conclusions, in both pdf and Word format, to Courtroom Deputy Lisa Lyles, by August 31, 2020. (This entry is the Official Order of the Court. No document is attached.) (JED1, Chambers) (Entered: 08/24/2020)

FINAL WITNESS LIST by DCCC, Oklahoma Democratic Party

52

(Frasier, Frank) (Entered: 08/24/2020)

08/26/2020 53

MINUTES of Proceedings - held before Chief Judge John E Dowdell: Evidentiary Hearing held on 8/26/2020 , Motion Hearing held on 8/26/2020 , setting/resetting deadline(s)/hearing(s): ( Miscellaneous

08/31/2020 09/01/2020

Deadline set for 8/31/2020) (Re: 47 MOTION for Preliminary Injunction ) (Court Reporter: Terri Beeler) (With attachments) (lml, Dpty Clk) (Entered: 08/26/2020)

PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW

54

by Jerry Buchanan, Heather Mahieu Cline, Tim Mauldin, Tom

Montgomery, Debi Thompson, Paul Ziriax (Mansinghani, Mithun)

(Entered: 08/31/2020)

55 TRANSCRIPT of Proceedings (Unredacted) of preliminary injunction/permanent injunction & trial on the merits held on 8/26/20 before Chief Judge John E Dowdell (Court Reporter: Terri Beeler) (Pages: 203). NOTICE RE REDACTION OF TRANSCRIPTS: A party must file a Transcript Redaction Request within 21 calendar days. If a party fails to request redaction, this unredacted transcript may be made electronically available to the public without redaction after 90 calendar days. Any party needing a copy of the transcript to review for redaction purposes may view the transcript at the court public terminal at no charge or may purchase a copy from the court

09/17/2020 56

reporter. (Re: 53 Minutes of Evidentiary Hearing,, Minutes of Motion Hearing,, Setting/Resetting Deadline(s)/Hearing(s), ) (tdb, Crt Rptr) (Entered: 09/01/2020)
OPINION AND ORDER by Chief Judge John E Dowdell The plaintiffs' request for injunctive relief (Doc. 18, 47)is denied ; FINDINGS OF FACT AND CONCLUSIONS OF LAW by Chief

09/17/2020 57
09/17/2020

Judge John E Dowdell ; denying 47 Motion for Preliminary Injunction (JED1, Chambers) (Entered: 09/17/2020)
JUDGMENT by Chief Judge John E Dowdell , entering judgment in favor of defendants (terminates case) (JED1, Chambers) (Entered: 09/17/2020)

***Civil Case Terminated (see document number 57 Clk) (Entered: 09/18/2020)

) (sac, Dpty

 
 Case 4:20-cv-00211-JED-JFJ Document 2 Filed in USDC ND/OK on 05/18/20 Page 1 of 40

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OKLAHOMA

(1) DCCC and (2) OKLAHOMA DEMOCRATIC PARTY,

Case No. 20-CV-00211-JED-JFJ

Plaintiffs, v.

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

(1) PAUL ZIRIAX, in his official capacity as the Secretary of the Oklahoma State Election Board;

(2) TOM MONTGOMERY, in his official capacity as Chairman of the Oklahoma State Election Board;

(3) DR. TIM MAULDIN, in his official capacity as Vice-Chairman of the Oklahoma State Election Board;

(4) HEATHER MAHIEU CLINE, in her official capacity as a member of the Oklahoma State Election Board;

(5) JERRY BUCHANAN, in his official capacity as an alternate member of the Oklahoma State Election Board; and

(6) DEBI THOMPSON, in her official capacity as an alternate member of the Oklahoma State Election Board,

Defendants.

Plaintiffs DCCC and the OKLAHOMA DEMOCRATIC PARTY file this Complaint for Injunctive and Declaratory Relief against Defendants PAUL ZIRIAX, in his official capacity as the Secretary of the Oklahoma State Election Board (the “State Board”); TOM MONTGOMERY, in his official capacity as Chairman of the State Board; DR. TIM MAULDIN, in his official capacity as Vice-Chairman of the State Board; HEATHER MAHIEU CLINE, in her official

-1-

Case 4:20-cv-00211-JED-JFJ Document 2 Filed in USDC ND/OK on 05/18/20 Page 2 of 40
capacity as a member of the State Board; and JERRY BUCHANAN and DEBI THOMPSON, in their official capacities as alternate members of the State Board, and allege as follows:
STATEMENT OF THE CASE 1. A highly infectious novel coronavirus is spreading rapidly through the United States and the State of Oklahoma. As of the date of this filing, 5,086 Oklahoma residents have tested positive for COVID-19—the disease caused by the coronavirus—and it has officially claimed the lives of 285 Oklahomans. These numbers are increasing daily. Yet, the Director of the Centers for Disease Control and Prevention (“CDC”) is already cautioning of a second, more deadly wave coming in the fall, which he predicted will “be even more difficult than the one we just went through.” It is anticipated to coincide with the beginning of flu season, just when Oklahoma’s voters would ordinarily head to the polls to vote in the coming November 3, 2020 general election (the “November Election”). Thus, both the upcoming June 30, 2020 primary and the November Election are projected to occur during a public health crisis the likes of which this country has not seen for over 100 years. 2. The disease spreads mainly from person-to-person transfer through respiratory droplets when an infected person coughs, sneezes, or even, in some cases, speaks or breathes. It has been increasingly discovered that a substantial number of people have become infected by contact with an entirely asymptomatic or pre-symptomatic carrier of the virus. Super-spreaders who are unaware that they are infected have spread the virus to large numbers of people at family gatherings, in their workplaces, at restaurants, at indoor sporting events, and even at a choir practice. The virus can also spread from contact with contaminated surfaces of objects. It is highly contagious and causes severe symptoms and even death in people of all ages. Elderly Americans are particularly at risk, but so are younger Americans with relatively common pre-existing
-2-

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conditions, such as asthma. Some healthy young people have died of the virus, while others have suffered severe and debilitating large vessel strokes. More recently, an increasing number of children are exhibiting alarming symptoms that seem to be the result of an immunological response after they have fought off the virus. Some have ended up on ventilators, and a few have died. Experts cannot predict whether a particular person will die or suffer serious complications from the virus. Nor can anyone predict who will become an asymptomatic spreader, unwittingly infecting their friends, loved ones, and even strangers who they interact with as they go about their daily lives.
3. As a result, public health experts around the globe, including in local and federal government here in the United States, have strongly encouraged broad social distancing and selfisolation measures in an attempt to flatten the curve of the virus while we learn how—and ensure that our hospitals have the capacity to—fight it. Consistent with that guidance, Oklahoma Governor Kevin Stitt has issued a series of executive orders in response to the crisis. The first was issued on March 15, 2020, when he declared an emergency in all 77 Oklahoma counties “caused by the impending threat of COVID-19” to Oklahomans “and the public’s peace, health, and safety.”1 He ordered all residents over the age of 65 and those who have “serious underlying medical conditions” to stay home “to protect the health and lives of Oklahomans, especially our vulnerable populations,” and directed those who do leave their homes to engage in social distancing “by staying out of crowded places, not gathering in groups, and staying at least 6 feet from other people.”2

1

Governor’s

Exec.

Orders

regarding

COVID-19,

https://www.ok.gov/okdocc/News_Media/Governor's_Executive_Orders_regarding_COVID-19/index.html.

2 See, e.g., Exec. Dep’t Fourth Am. Exec. Order 2020-13, Apr. 24, 2020,

https://www.sos.ok.gov/documents/executive/1937.pdf (emphasis added).

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4. The CDC has recommended that, in light of the significant health risks that requiring people to congregate in large numbers currently pose, jurisdictions encourage voters to vote absentee and broadly reduce methods of voting that lead to direct contact with other people, including among voters and between voters and poll workers. Jurisdictions that have held elections since the crisis began have, not surprisingly, found that extraordinarily high numbers of voters are choosing to exercise their right to vote absentee, while at the same time people who in the past would have volunteered to staff the polls (many of whom are elderly and thus in a particularly high risk group for serious complications from COVID-19) are refusing to do so, and many locations that previously served as polling places, such as senior centers and schools, are unwilling to open their doors for that purpose.
5. In Oklahoma, too, it is certain that large numbers of voters will turn to voting absentee in order to exercise their right to the franchise. Oklahoma permits all of its registered voters to apply to vote absentee. Okla. Stat. tit. 26, § 14-105. But mere statutory access to voting absentee is not sufficient to protect voters’ constitutional rights in the face of this pandemic. As the U.S. Supreme Court said long ago, “There is more to the right to vote than the right to mark a piece of paper and drop it in a box or the right to pull a lever in a voting booth. The right to vote includes the right to have the ballot counted.” Reynolds v. Sims, 377 U.S. 533, 555 n.29 (1964) (citation and quotation omitted). Oklahoma law currently imposes several burdensome restrictions and procedures that threaten to deny countless of the State’s lawful, eligible voters this right. Unless rectified, these barriers will force voters to choose between their health and the health and safety of their community on the one hand, and their fundamental right to vote on the other. This is a choice that the U.S. Constitution does not permit states to force its voters to make.
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6. The provisions at issue are Oklahoma’s (1) onerous and unnecessarily burdensome notarization, witnessing, and Photo ID requirements, Enr. S.B. 210; Okla. Stat. tit. 26, §§ 14-113.2, 16-123.1 (the “Notarization/Witness/Photo ID Requirement”), (2) refusal to prepay for postage to return completed absentee ballots (the “Postage Requirement”); (3) rejection of absentee ballots delivered after 7:00 p.m. on Election Day, id. § 230:30-11-5(a); Okla. Stat. tit. 26 § 14-104; (the “Election Day Receipt Deadline”); and (4) ban on organizations, like Plaintiffs DCCC and the Oklahoma Democratic Party, from collecting absentee ballots except in the case of physically incapacitated or emergency incapacitated voters, Okla. Admin. Code §§ 230:30-9-6(g), 230:30-11-1.1(a); Okla. Stat. tit. 26, §§ 14-108(A), 14-115.1 (the “Absentee Assistance Ban”).
7. Absent injunctive and declaratory relief, these laws (together, the “Challenged Provisions”) will operate independently and together to severely burden the right to vote of thousands of Oklahomans, in many cases resulting in complete disenfranchisement. For these reasons and those set forth below, this Court should declare unconstitutional and enjoin each of the Challenged Provisions.
JURISDICTION AND VENUE 8. Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 to redress the deprivation, under color of state law, of rights secured by the U.S. Constitution. 9. This Court has original jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the U.S. Constitution and laws of the United States. 10. This Court has personal jurisdiction over Defendants, members of the Oklahoma State Election Board, who are sued in their official capacities only.
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11. Venue is proper in this Court under 28 U.S.C. § 1391(b) because all Defendants are residents of Oklahoma, in which this judicial district is located, and a substantial part of the events that gave rise to Plaintiffs’ claims occurred in this judicial district.
12. This Court has the authority to enter a declaratory judgment and preliminary and permanent injunctive relief pursuant to Federal Rules of Civil Procedure 57 and 65 and 28 U.S.C. §§ 2201 and 2202.
PARTIES 13. Plaintiff DCCC is the national congressional committee of the Democratic Party, as the term is defined by and used in 52 U.S.C. § 30101(14). Its mission is to elect Democrats to Congress, including from Oklahoma’s five congressional districts. DCCC works to accomplish its mission by, among other things, making expenditures for, and contributions to, Democratic candidates for U.S. Congress and assisting state parties throughout the country, including in Oklahoma. DCCC intends to expend significant resources to support Democratic candidates in the State this year. 14. For example, DCCC will devote considerable time educating an Oklahoma-based field team to engage in aggressive get-out-the-vote (“GOTV”) efforts, including educating voters about voting absentee, distributing absentee ballot applications to voters, and mobilizing and turning out voters in Oklahoma elections this year. 15. DCCC’s efforts will include focusing on supporting specific subsets of voters, including low income voters, voters whose essential work (including e.g., in medical care, food delivery, and grocery stores, to mention just a few) puts them at higher risk of contracting the virus, as well as on elderly voters, who are at high risk of complications from COVID-19, and thus have a significant need to vote absentee.
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16. DCCC will devote substantial time and resources explaining the Challenged Provisions as part of its voter education efforts, including the Notarization/Witness/Photo ID Requirement, which did not exist in its current form before this election. DCCC will inform voters that they must have their ballots notarized or, if they are “physically incapacitated” under the Legislature’s new definition of that term or caring for someone “physically incapacitated,” they must have their ballots witnessed by two individuals or submitted with a photocopy of valid photo identification. DCCC will have to divert more resources to educating voters about what types of identification are permissible, and that the individual is submitting the affidavit under penalty of perjury. DCCC will also instruct voters about the limited number of ballots notaries and witnesses are permitted to sign.
17. In addition, DCCC will have to divert resources to explain the process for returning absentee ballots, including the methods (in person and by mail), the Postage Requirement, and the Election Day Receipt Deadline. DCCC will divert resources to give guidance on when voters should mail their absentee ballots to ensure that they are received in time to be counted.
18. DCCC’s efforts would also include assisting voters in delivering their sealed and voted ballots upon request, if not for the Absentee Assistance Ban. Absent the Ban, DCCC would concentrate on helping primarily low-income communities—that tend to have fewer polling locations and difficulty staffing these locations—for whom ballot collection is particularly important.
19. The Challenged Provisions directly harm DCCC by frustrating its missions of turning out Democratic voters who face greater obstacles to voting, such as the elderly and lowerincome voters, and electing Democratic candidates. The provisions make it harder for Democratic voters, DCCC’s constituents who associate with them to further their shared political and
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expressive ends, to vote. For example, the Notarization/Witness/Photo ID Requirement makes voting more burdensome by requiring many Democratic voters to leave their houses during a pandemic to locate notaries, who are difficult to find in the State and inaccessible to many, including low-income and rural voters. There are also an insufficient number of notaries for all registered voters to cast their ballots. Because fewer voters will be able to vote for Democratic candidates for U.S. Congress, the Challenged Provisions harm the Democratic candidates DCCC supports in Oklahoma. In addition, decreased voter turnout undermines DCCC’s fundamental right to choose its standard bearers through a vote that accurately reflects the preferences of Democratic Party membership.
20. Plaintiff the Oklahoma Democratic Party is the Oklahoma state party committee of the national Democratic Party, as the term is defined by and used in 52 U.S.C. §§ 30101(4), (15), and a political party within the meaning of 52 U.S.C. § 30101(16). The Oklahoma Democratic Party is certified by the State Board to nominate candidates for office to be voted on in a general or special election and nominates candidates on a regular basis by party primary. Okla. Stat. tit. 26, § 1-102. The Oklahoma Democratic Party has an interest in ensuring that voters have an opportunity to express their will regarding Democratic Party candidates running for elections, as well as ballot measures and initiatives those individuals support. The Oklahoma Democratic Party has hundreds of thousands of members and constituents from across the State, including Oklahomans who regularly support candidates affiliated with the Democratic Party and Democratic Party candidates. To accomplish its purpose, the Oklahoma Democratic Party engages in vitally important activities, including GOTV activities to support Democratic Party candidates in national, state, and local elections through a meaningful opportunity to cast ballots in Oklahoma.
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21. These activities include broad-based education campaigns for Democratic voters on the procedures and deadlines for voting both absentee and in person, including how to comply with the Challenged Provisions.
22. This year in particular, the Oklahoma Democratic Party’s GOTV efforts are even more important due to voter confusion surrounding the Notarization/Witness/Photo ID Requirement. The Oklahoma Democratic Party has already had to divert resources to respond to a high volume of calls and emails from Democratic voters unsure whether they must have their ballots notarized. This is due to the Oklahoma Supreme Court striking down a notarization requirement, only for the Legislature to enact a few days later a brand new and more complicated Notarization/Witness/Photo ID Requirement. As a result of voter confusion, the Oklahoma Democratic Party will divert resources to engage in paid canvassing and paid social media to clarify how voters must complete their ballots. This includes informing voters that they must have their ballots notarized or, if they are “physically incapacitated” under the Legislature’s new definition of that term or caring for someone “physically incapacitated,” they must have their ballots witnessed by two individuals or submitted with a photocopy of valid photo identification.
23. Due to the Notarization/Witness/Photo ID Requirement, the Oklahoma Democratic Party has diverted resources from other programs and day-to-day activities that are core to its mission, including programs to elect Democratic Party candidates in Oklahoma, in order to attempt to help its voters overcome the barriers presented by the lack of safe means to cast their ballots. In addition, because a significant number of Oklahoma voters will be voting absentee for the first time this year, the Oklahoma Democratic Party will need to further divert resources to educate voters on how to complete their absentee ballots, despite the Challenged Provisions. This diversion
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of resources will only increase, and will be unprecedented, as the primary and general elections get closer.
24. Moreover, the Oklahoma Democratic Party’s efforts would also include assisting voters in delivering their sealed and voted ballots upon request, if not for the Absentee Assistance Ban. Absent the Ban, the Oklahoma Democratic Party would concentrate on helping voters— particularly those with limited mobility and lack of ready access to postage—who reside in retirement homes and assisted living homes, and for whom ballot collection is particularly important to ensure that they are able to timely return their ballots to the appropriate elections officials.
25. An election held without accounting for the COVID-19 pandemic directly harms the Oklahoma Democratic Party because it frustrates its mission and the effectiveness of its efforts to persuade and mobilize voters to vote for Democratic candidates and causes. The Challenged Provisions impede Democratic voters’ ability to exercise their constitutional right to vote. For example, the Notarization/Witness/Photo ID Requirement imposes an undue burden on many Democratic voters who are confused, so close to the primary election, whether they need to have their absentee ballot notarized, and who are required to leave their houses during a pandemic to locate notaries. Because fewer voters will be able to vote for Democratic candidates, the Challenged Provisions harm the Democratic candidates the Oklahoma Democratic Party supports. In addition, decreased voter turnout injures undermines Oklahoma Democratic Party’s fundamental right to choose its standard bearers through a vote that accurately reflects the preferences of Democratic Party membership.
26. Defendant Paul Ziriax is the Secretary of the Oklahoma State Election Board, the State’s chief election official, and is named as a Defendant in his official capacity. The Secretary
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oversees county election boards and is responsible for “promulgat[ing], repeal[ing] or modify[ing]” rules or regulations to “maintain[ ] uniformity in the application, operation and interpretation of the state and federal election laws[.]” Id. § 2-107.
27. Defendant Tom Montgomery is the Chairman of the Oklahoma State Election Board and is named as a Defendant in his official capacity. Defendant Dr. Tim Mauldin is the Vice-Chairman of the Oklahoma State Election Board and is named as a Defendant in his official capacity. Defendant Heather Mahieu Cline is a member of the Oklahoma State Election Board and is named as a Defendant in her official capacity. Defendants Jerry Buchanan and Debi Thompson are alternate members of the Oklahoma State Election Board and are named as Defendants in their official capacities. These Defendants compose the Oklahoma State Election Board. Their responsibilities include, but are not limited to, administering and enforcing Oklahoma’s election laws and overseeing elections. See id. § 2-106; Okla. Const. art. 3, § 2.
28. At all times relevant to this action, Defendants have acted under color of state law. STATEMENT OF FACTS AND LAW
A. As the COVID-19 pandemic persists, an unprecedented number of Oklahomans will rely upon voting absentee. 29. Because of the risks of voting in person in the midst of this unprecedented public
health crisis, states that have held elections since the pandemic begun have experienced dramatic increases in voting absentee by eligible voters.
30. For example, Wisconsin reported issuing almost 1.3 million absentee ballots in the primary election it held last month, representing a striking increase from a total of 101,803 during the 2016 primary.
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31. That same month, Ohio experienced a 421 percent increase in requests to vote absentee in its primary when compared with absentee voter turnout in 2016, the last time the state held a primary in a presidential election year.
32. There is no reason to expect that Oklahoma’s electorate will not similarly choose overwhelmingly to vote absentee.
33. In the midst of the pandemic, the risks of voting in person remain significant even when elections officials attempt to comply with social distancing and sanitizing requirements.
34. In Wisconsin, for example, where thousands of voters did not receive the absentee ballots in time to vote or return them in time to be counted, a significant number of voters presented in person at the polls to vote on Election Day. Although the State imposed social distancing and took other precautions against the spread of the virus, public officials have identified over 60 people, including poll workers, who tested positive for COVID-19 after voting or working at polling places in the primary election.
35. Even before Wisconsin, the CDC, recognizing the serious risks involved, advised states to encourage voting absentee and recommended that voters “use voting methods that minimize direct contact with other people and reduce crowd size at polling stations.”
36. Defendant Ziriax declared an “election emergency” in Oklahoma on March 18 and again on April 10, agreeing with the CDC’s recommendations. The first election emergency “require[d] County Election Boards to accept resolutions adopted by the governing bodies of school districts, municipalities, technology districts and counties to move their April 7 elections to another date” to “help efforts to flatten the COVID-19 curve.”3 The second “election emergency”

3 Okla. State Election Bd., State Election Board Secretary Declares Election Emergency; Authorizes Local Entities to

Reschedule

(Mar.

18,

2020),

https://www.ok.gov/triton/modules/newsroom/newsroom_article.php?id=196&article_id=56539.

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involved the “contests of candidacy”⸺where a candidate for state or federal office can challenge another’s candidacy for the same office⸺scheduled for April 21. Although the Board “historically held all contest of candidacy hearings” in the State Capitol open to the public, Defendant Ziriax agreed with “recommendations from the” CDC, “the Oklahoma State Department of Health” “and other health experts that large public gatherings should be limited in an effort to decrease the risk of the community spread of COVID-19.” As a result, he “strongly encouraged” everyone to attend the contests by teleconference or videoconference.4
37. Since 1995, Oklahoma has permitted all registered voters to vote absentee in any state and federal election without an excuse. See Laws 1995 c.290, § 14-105, eff. Nov. 1, 1995 (SB 556).
38. Voters may apply for absentee ballots electronically, by fax, mail, telegram, or in person. See Okla. Admin. Code §§ 230:30-5-13(a), 230:30-9-9.
39. But mere statutory access to absentee voting is not sufficient to protect voters’ constitutional rights in the face of this pandemic.
40. At issue in this case are several provisions of Oklahoma law that impose burdensome restrictions and procedures that threaten to deny countless of the State’s lawful, eligible voters the right not only to cast an absentee ballot, but to have it counted. B. The Notarization/Witness/Photo ID Requirement is dangerous for Oklahoma voters
and cannot be justified by sufficiently weighty State interests. 41. Oklahoma requires that elections officials reject absentee ballots unless they have their absentee ballot affidavit notarized. Okla. Stat. tit. 26, § 14-108. The affidavit is a separate document sent to the voter with the ballot “stating that the voter is qualified to vote and that the
4 Okla. State Election Bd., Declaration of Election Emergency 2020-02 (Apr. 10, 2020), https://www.ok.gov/elections/documents/DECLARATION%20OF%20ELECTION%20EMERGENCY%20202002-Sealed%20and%20Notarized.pdf.
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voter has personally marked the ballots, and has not exhibited the marked ballots to any other person” (the “Notarization Requirement”). Id. § 14-107(A)(2). The only exceptions to the Notarization Requirement are for (1) physically incapacitated voters, (2) voters who are caregivers for physically incapacitated voters, and (3) voters who provide a photocopy of certain specific forms of photo identification (the “Photo ID Requirement”). Id. §§ 14-110.1, 14-113.2(A).
42. The Photo ID Requirement was created by the Legislature in response to the Oklahoma Supreme Court decision in The League of Women Voters of Okla. v. Ziriax, No. 118765, -- P.3d --, 2020 OK 26, 2020 WL 2111348 (Okla. May 4, 2020) (citing Okla. Stat. tit. 12, § 426), issued earlier this month, in which the Court struck down the Notarization Requirement for all other voters, finding that it was sufficient for voters to, instead, simply sign the ballot affidavit under penalty of perjury.
43. Four days later, the Legislature approved SB 210, which reinstated the Notarization Requirement and created the Photo ID Requirement, which allows a voter to avoid the Notarization Requirement if they both sign their ballot affidavit under penalty of perjury and submit, with their ballot, a photocopy of a form of photo identification that Oklahoma would deem acceptable had the voter cast his or her ballot in person. Okla. Stat. tit. 26, § 7-114 (listing acceptable forms of photo ID).
44. Under Oklahoma law, qualifying photo identification for voting purposes contains a name, photograph, expiration date after the election, and was issued by “the United States, the State of Oklahoma or the government of a federally recognized Indian tribe or nation.” Id. A “voter identification card issued by the appropriate county election board” also counts. Id.
45. The Photo ID Requirement also allows a physically incapacitated voter, and those caring for physically incapacitated voters, to avoid having two individuals witness the voter’s
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signature and sign their signatures and addresses (the “Witness Requirement”, id. § 14-113.2(A)), if the voters both sign their ballot affidavit under penalty of perjury and submit, with their ballot, a photocopy of a form of photo identification that Oklahoma would deem acceptable had the voter cast his or her ballot in person.
46. Each of these requirements, which are referred to collectively throughout this Complaint as the Notarization/Witness/Photo ID Requirement, impose substantial, unjustifiable burdens on Oklahoma voters who vote absentee.
The Notarization Requirement 47. The Notarization Requirement requires that absentee voters who are not physically incapacitated or caring for physically incapacitated persons get their ballot affidavits notarized. Id. § 14-108. 48. Almost all Oklahomans who need to find a notary will have to leave their homes in order to do so. 49. There are currently 76,458 notaries registered in Oklahoma, as compared with the 2.09 million voters registered in Oklahoma, as of January 2020. 50. Thus, in nearly all cases, the Notarization Requirement will compel the voters who must satisfy it to interact with another person—almost certainly outside of their home—and touch common objects, risking exposure to COVID-19, in order to exercise their right to vote. 51. Oklahoma further forbids a notary from notarizing more than 20 ballots in a given election unless the notary is at his or her place of business. Id. § 14-108.1. Yet, as a result of the COVID-19 epidemic, substantial numbers of the State’s notaries are likely not working from their “place of business,” as many businesses remain shuttered for the safety of Oklahoma citizens.
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52. As a result, even if some number of notaries were willing to make themselves available and literally go door-to-door in order to notarize absentee ballots, finding some way to do so in a manner that kept themselves and the voters safe, they would be limited in their reach because of the restrictions placed on the number of ballots they may notarize.
The Witness Requirement 53. The exception carved out for physically incapacitated voters and those who are caregivers for physically incapacitated voters is equally problematic. 54. To utilize this exception, voters must have their signatures witnessed by two other people, who must also sign the voter’s affidavit and provide their addresses. Id. § 14-113.2(A). 55. Voters who use the witness exception for physically incapacitated voters and their caretakers must return their ballots by mail—in person delivery is not permitted. Id. §§ 14-108(A), 14-113.2(A). 56. In enacting SB 210, the Oklahoma Legislature amended the definition of what constitutes as “physically incapacitated” for these purposes to include a narrow sliver of Oklahomans affected by COVID-19. 57. Specifically, if “a State of Emergency declared by the Governor related to the COVID-19 pandemic is in effect forty-five days prior to a scheduled election, or is declared within forty-five days of the election,” “physically incapacitated” voters may also include the following narrow categories of voters: (1) those who have tested positive for COVID-19 and are receiving treatment or subject to quarantine under doctor’s or health department orders; (2) people tested for COVID-19 awaiting results; (3) people exhibiting symptoms of COVID-19 who have been advised by the voter’s personal physician or the county health department to quarantine or self-isolate; (4) people in “group[s] considered at ‘higher risk of severe illness’ due to age or underlying health
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conditions as defined by the CDC, and as such are subject to a ‘stay at home’ or ‘safer at home’ or similar order by the Governor or by an authorized municipal authority; or (5) voters with a “written recommendation from the voter’s personal physician that due to an underlying health condition the voter should not leave his or her home due to the COVID-19 pandemic.”
58. The written recommendations from public health officials telling all people to stay at home and at least six feet away from other people due to the risk of transmission via asymptomatic carriers do not qualify for the revised definition of “physically incapacitated,” as enacted by the Legislature in SB 210.
59. A substantial number of physically incapacitated voters will have to leave their homes and break quarantine—or invite additional persons in their home despite their selfisolation—to obtain the two witnesses required to satisfy this requirement.
60. More than 416,000 people in Oklahoma live in households with fewer than three adults. Those voters cannot rely on members of their household to serve as witnesses and have no choice but to venture outside of their safe spaces, or invite others in.
61. And these voters must interact with not just one but two other people, and touch common objects, in the process risking exposure to COVID-19, in order to be able to exercise their right to vote.
62. Those newly designated as “physically incapacitated” by SB 210—i.e., those voters who have or are suspected by medical personnel to have an active case of COVID-19—will almost certainly fail to find two witnesses willing to risk exposure to the virus in order to assist the person in voting.
63. The Witness Requirement also imposes a particular burden on physically incapacitated voters at long-term care facilities and retirement homes.
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64. In the current pandemic, visitors are broadly prohibited “from entering and visiting patients and residents at nursing homes, long-term care facilities, and retirement homes” except in end-of-life situations.5
65. The new law, SB 210, requires “a designated official” at nursing homes and veterans’ centers to serve as a witness for ballot affidavits. It is not clear if, by requiring this designation, the Legislature intended to permit residents of nursing homes and veterans’ centers to comply with the Witness Requirement by obtaining only one witness signature, not the two otherwise required.
66. That said, facilities like nursing homes, long-term care facilities, and retirement homes, have had some of the highest concentrated death tolls in the pandemic. Thus, requiring a single individual to serve as the witness for every voter’s absentee ballot in such a facility, a process that requires the witness and voter to be in close proximity and handle the same document, creates an unnecessary, heightened risk in the heart of Oklahoma’s most vulnerable facilities.
67. SB 210 has no carveout for other long-term care facilities or retirement homes. Thus, physically incapacitated voters at those locations still must find two other residents or staffers willing to violate social distancing measures and handle the voters’ ballots in order to exercise their right to vote.
68. Neither the Notarization nor the Witness Requirement serves any State interest that can justify the burdens they impose on voters, particularly in the midst of this unprecedented health crisis.
5 See Exec. Dep’t Fourth Am. Exec. Order 2020-13, supra note 2.
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69. Oklahoma is one of only five states that require absentee voters to obtain notarization or two witnesses.6 There is no evidence that the states without such requirements are overrun by voter fraud. Indeed, voter fraud is extremely rare in Oklahoma and elsewhere.
The Photo ID Requirement 70. Far from alleviating the burdens imposed on voters by the Notarization or Witness Requirements, the Photo ID Requirement imposes its own equally unjustifiable burdens on and hurdles to Oklahomans’ successful exercise of the right to vote. 71. The Photo ID Requirement requires voters to submit either a photocopy of “a voter identification card issued by the appropriate county election board” or a government-issued document that has their name, photograph, and an expiration date after the election. Enr. S.B. 210; Okla. Stat. tit. 26, §§ 14-108(A), 14-113.2(A). Voters must return their ballots in person or by mail. Id. 72. To use the Photo ID Requirement, a voter must have access to a scanner and printer, which many voters do not have at home. 73. As with most of the requirements, the burden falls heaviest on low-income and elderly voters, as well as students, many of whom do not own printers and scanners. 74. A State Department of Education survey found that “roughly one in three students” in Oklahoma does not even have a computer at home. 75. Almost 21 percent of Americans over 65 live in a household without a computer.
6 North Carolina, Rhode Island, Mississippi, and Missouri are the others. See Ala. Code §§ 17-9-30(b), 17-11-7, 17-11-10; Alaska Stat. § 15.20.030; La. Stat. § 18:1306(2)(a); Minn. Stat. § 203B.07; Miss. Code §§ 23-15-627, 23-15-635, 23-15-633; Mo. Rev. Stat. §§ 115.279, 115.283, 115.295; N.C.G.S. § 163-231; Okla. Stat. tit. 26, §§ 14-108, 14-113.2(A); 17 R.I. Gen. Laws § 17-20-23; S.C. Code §§ 7-15-220, 7-15-230; Va. Code §§ 24.2-706, 24.2- 707; Wis. Stat. § 6.87(4)(b)1; see also Voting Outside the Polling Place: Absentee, All-Mail and other Voting at Home Options, NCSL, https://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx.
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76. Countless voters who desire to use the Photo ID Requirement will thus have to leave their homes and risk being exposed to COVID-19 in order to do so.
77. Even then, they may not be able to easily access a scanner and photocopy machine, because business and libraries are currently closed. If the voter finds one, they may very well have to pay a fee to utilize it. And, of course, in utilizing that machinery, they are likely to not only have to interact with other people, but also to touch surfaces that have been recently touched by other people, needlessly risking exposure to the virus.
78. That the Notarization/Witness/Photo ID Requirement is not necessary to ensure the integrity of Oklahoma’s elections (or serve any other legitimate government purpose) is demonstrated by the fact that Oklahoma does not impose any of these restrictions on uniformed-service or overseas voters who vote absentee. See Uniform Military and Overseas Voters Act, Okla. Stat. tit 26, § 14-136, et seq. Those voters need only sign the ballot affidavit and declare that “a material misstatement of fact . . . may be grounds for a conviction of perjury.” See id. § 14-148.
79. Similarly, no notarization, witness signatures, or photocopy of photo identification is required for emergency incapacitated voters—“voters who become[ ] incapacitated after 5:00 p.m. on [the] Tuesday preceding an election”—who return their absentee ballots by mail. Id. § 14-115.1.
80. Multiple other Oklahoma laws ably and adequately deter and punish voter fraud, rendering the Notarization/Witness/Photo ID Requirement unnecessary.
81. Voters who (1) “knowingly execute[ ] a false application for an absentee ballot[,]” id. § 16-102.2; (2) “knowingly swear[ ] or affirm[ ] a false affidavit[,]” id. § 16-103; and (3) “knowingly vote and submit[ . . .] absentee ballot[s] issued to another person” and who
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“knowingly conspire[ ] to commit fraud or perpetrate[ ] fraud[,]” id. §§ 16-102, 16-105, are guilty of a felony.
82. And voters who “interfere[ ] with a registered voter who is attempting to vote” or “with the orderly and lawful conduct of an election” or who “attempt[ ] to influence the vote of another by means of force or intimidation” are guilty of a misdemeanor. Id. § 16-113. C. The Postage Requirement will require Oklahoma voters to pay to vote safely and
cannot be justified by sufficiently weighty State interests. 83. Because Oklahoma does not provide prepaid postage on its absentee ballots, voters who mail in their absentee ballot must incur and bear a monetary burden in order for their vote to be counted. 84. The Postage Requirement also presents several practicable problems that will prove for some voters, particularly in the context of the current pandemic, insurmountable. 85. The severity of the burdens imposed by the Postage Requirement are significantly exacerbated under the present circumstances, when many Oklahomans are experiencing significant financial struggles due to the economic impact of COVID-19. 86. Many people do not keep stamps at home. The volume of mail sent thorough the U.S. Postal Service (“USPS”) has declined 43 percent since 2001. Many now pay their bills and otherwise conduct their communications online, and the result has been that stamps are no longer a household staple. 87. Before the pandemic, a voter with access to reliable transportation could go to the post office to buy a single stamp; today, where many voters who request an absentee ballot will be doing so because they have underlying conditions that put them at higher risk for severe complications from COVID-19, doing so could pose an equally severe threat to their health.
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88. While there are some services that allow voters to print postage online, these services also require a printer, scale, and paid subscription.
89. A voter can order stamps online on the USPS website, however, they take five to seven days to be delivered under normal circumstances, are not sold individually, must be purchased on a sheet of stamps that costs a minimum of $11.00, and require the purchaser to pay for shipping and handling of the stamps themselves.
90. It is also not always clear how much postage a voter may need in order to return his or her ballot. Depending on the number of races at issue in a given jurisdictions, it may require more than one First-Class stamp to cover the return postage.
91. While these financial costs may seem trivial to some, an estimated 275,000 jobs have already been impacted in Oklahoma as a result of COVID-19, with unemployment claims in the State at nearly five times higher than the 1991 record for first-time State filings.
92. The reality is that that many Oklahomans are counting every penny, and this additional burden, together with legitimate concerns about exposing themselves to the virus, is highly likely to cause widespread and unjustifiable disenfranchisement.
93. For voters who do not receive their ballots in the mail until close to Election Day— a problem that thousands of Wisconsin voters encountered in the recent primary election there— the cost to overnight or expedite their ballot to ensure that it arrives by 7:00 p.m. on Election Day discussed below, will impose further burdens on their right to vote.
94. All of these burdens will fall disproportionately on the socioeconomically disadvantaged, many of whom are constituents of DCCC and Oklahoma Democratic Party.
95. Lower income and younger voters are less likely to have a stamp on hand. Although people can buy stamps online, many voters do not have internet access, a credit card, and a printer.
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96. Even if voters have the means to purchase stamps, many voters will have to leave their homes in order to obtain them⸺a dangerous proposition during the COVID-19 crisis.
97. The trip to a post office or other establishment that sells stamps is even more dangerous for those who lack vehicles and must rely on public transportation. Some rural voters in Oklahoma do not have viable public transportation options.
98. There is evidence that postage costs broadly burden voters and that voter turnout dramatically increases when voters do not have to pay for postage. During the 2017 and 2018 primary elections in King County, Washington, thousands of voters received envelopes with postage prepaid. Those pilot programs resulted in a double-digit increase in the percentage of voter turnout in at least one town. In May 2018, Washington State started funding prepaid absentee ballots in the remaining counties.
99. Oklahoma recognizes that postage is a burden on voters. That is why Oklahoma citizens living overseas and military personnel abroad need not pay for postage to mail their completed absentee ballots.7 “Any American voter living overseas can mail his or her completed ballot back to the United States free of charge at the nearest American embassy, consulate, or Diplomatic Post Office (DPO). If the voter has authorized access to a military base, he or she can mail a ballot free of charge at the nearest Army Post Office (APO) or Fleet Post Office (FPO).”8
100. The State’s only conceivable interest in the Postage Requirement is budgetary, which cannot outweigh the burden on the right to vote.
101. Governments, including Oklahoma’s, already provide postage to enable citizens to readily complete other government forms. For instance, the U.S. Census Bureau sends surveys with postage-prepaid return envelopes. And, in compliance with the National Voter Registration
7 See Election Mail, U.S. Postal Serv., https://about.usps.com/postal-bulletin/2020/pb22539/html/cover_006.htm. 8 Id. (emphasis added).
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Act, Oklahoma mails postage-prepaid voter registration cards for selected voters to confirm their address.
102. For all of these reasons, the Postage Requirement is unconstitutional because voters must pay to vote safely and, at the very least, it imposes an unnecessary cost on the fundamental right to vote. D. The Election Day Receipt Deadline will result in large-scale disenfranchisement that
cannot be justified by sufficiently weighty State interests. 103. Voters can request an absentee ballot up until 5:00 p.m. on the Wednesday before the election, Okla. Stat. tit. 26, § 14-103, but Oklahoma rejects absentee ballots unless they are received by the secretary of each county election board by 7:00 p.m. on Election Day, regardless of when the voter first received the ballot from elections officials, when the voter actually mailed it back, or when the ballot was postmarked, id. § 14-104; Okla. Admin. Code § 230:30-11-5(a). 104. Thus, even where voters overcome the multiple obstacles already discussed that operate to hinder their ability to complete and return their ballots, the Election Day Receipt Deadline threatens to disenfranchise them. 105. Even before the current pandemic, in the past four years, nearly 3,000 absentee ballots were rejected in Oklahoma because of the Election Day Receipt Deadline. 106. In many cases, the Election Day Receipt Deadline threatens to disenfranchise voters for circumstances entirely beyond their control. 107. As a result of the anticipated deluge of absentee ballot requests and returns, understaffed clerk’s offices, and the USPS’s current budget crisis—as well as reductions in available staff, resulting from the current pandemic—which has rendered mail service increasingly slow and unpredictable, Oklahomans might receive their absentee ballots too late to return them before 7:00 p.m. on Election Day, even if they turned the ballots around immediately.
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108. Exacerbating the problem is the lack of clear and consistent guidance to voters from Oklahoma elections officials about when to mail their absentee ballots.
109. The U.S. Election Assistance Commission recommends voters “assume one week for USPS delivery” of their ballots to election officials under normal circumstances, and that elections officials “consistently communicate[ this message] to voters who use absentee ballots.9
110. And a study of USPS delivery of absentee ballots recommended that voters must place “their ballots in the mail five days prior to Election Day for states” with an Election Day receipt deadline.10
111. There is no notice of these or any time frames on Oklahoma’s State Board or county election board websites, so voters are left to make their own guess as to when they must mail their ballot in order to have a reasonable chance of it reaching the county secretary’s office by the Election Day Receipt Deadline.
112. The Election Day Receipt Deadline will threaten more voters with disenfranchisement than ever before in the coming election, when many voters who opt to cast their ballots by mail will be doing so for the first time.
113. These first-time absentee voters are less likely to be familiar with the Election Day Receipt Deadline, especially when many other mail deadlines in Oklahomans’ lives are postmark-related.11

9 2018 Election Cycle Preparation: Tips for State and Local Election Officials, U.S. Election Assistance Comm’n

Standards

Bd.

-

USPS

Comm.,

https://www.eac.gov/sites/default/files/eac_assets/1/6/2018_election_prep_vote_by_mail_one.pdf; see also Voting by

Mail/Absentee

Voting,

U.S.

Election

Assistance

Comm’n,

https://www.eac.gov/election-officials/voting-by-mail-absentee-voting.

10 Bipartisan Policy Ctr., The New Realities of Voting by Mail in 2016, at 8, available at

https://bipartisanpolicy.org/wp-content/uploads/2019/03/BPC-Voting-By-Mail.pdf.

11 See, e.g., Okla. Stat. tit. 68, § 221.1(A) (applying postmark deadline to tax returns and payments).

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114. Voters who have historically cast their ballots on Election Day at the polls are also accustomed to having until Election Day to decide for whom to vote. By effectively requiring these voters to cast their absentee ballots a full week before Election Day for those ballots to be counted, the Election Day Receipt Deadline forces Oklahoma voters to forego information about the election or the candidates that may arise in the final week leading up to Election Day that could influence their decision. The Election Day Receipt Deadline thus deprives voters of the ability to engage in this robust period of civic engagement.
115. As noted above, the pandemic will only make the risk of disenfranchisement posed by the Election Day Deadline more severe and substantially more likely to impact a significantly larger number of voters than in the past. As in other states that have held elections since the pandemic began, county election boards⸺likely understaffed or working remotely due to the pandemic and related government orders⸺will be delayed in turning around absentee ballot requests. And strain on the USPS will compound that delay. Voters in other states have recently reported significant mail delays. As discussed above, the USPS is struggling financially, and operations have slowed due to the pandemic.
116. In Wisconsin’s April election, for example, thousands of voters had not received their timely requested absentee ballots by that state’s Election Day receipt deadline.
117. In litigation brought in part to protect voters from disenfranchisement as a result of that deadline, the U.S. Supreme Court affirmed an extension of the Election Day receipt deadline in Wisconsin, acknowledging that the state’s interest in enforcing the deadline during the pandemic was far outweighed by the voters who would otherwise be disenfranchised if ballots postmarked by Election Day were not counted. See RNC v. DNC, 140 S. Ct. 1205, 1208 (2020) (per curiam).
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118. As a result, over 140,000 Wisconsinites had their absentee ballots counted instead of rejected as too late.12 Absent this extension, those voters would have had to choose between risking their lives and not voting.
119. Extending the Election Day Receipt Deadline also would not harm the State’s interest in the orderly administration of elections in Oklahoma.
120. Counting ballots continues after Election Day under normal circumstances. County election boards do not certify results for county offices until 5:00 pm on the Friday after Election Day, and the State Board does not certify results for state officers until after 5:00 p.m. a week after Election Day. Okla. Stat. tit. 26, § 7-136. Nor does state law mandate a particular time for public release of election results; it requires only that the results of the absentee ballots shall not be announced “earlier than 7:00 p.m. on election day.” Id. § 8-115. E. The Absentee Assistance Ban prohibits Plaintiffs and other organizations from
rendering necessary aid to absentee voters during this global pandemic and cannot be justified by sufficiently weighty State interests. 121. Oklahoma’s Absentee Assistance Ban prevents anyone but the voter from mailing or returning his or her absentee ballot. See id. §§ 14-108(A), 14-120; Okla. Admin. Code § 230:30-11-1.1(a). 122. During a time when the mail is unreliable and people are rightfully afraid to leave their houses and come into contact with others, the Absentee Assistance Ban imposes unjustifiable burdens on the right to vote.
12 The data regarding ballots that arrived between April 8 and April 13, 2020 in Wisconsin can be found at https://elections.wi.gov/blog and https://electionlawblog.org/?p=110746. As of 8:00 p.m. on April 7, 2020, there had been 990,129 absentee ballots returned. See Election Day Update Blog, Wis. Elections Comm’n, https://elections.wi.gov/blog. The Wisconsin Elections Commission reported that, ultimately, 1,132,923 absentee ballots were returned and counted, suggesting that 142,794 ballots were able to be counted that would not otherwise have been. See 2020 Spring Election and Presidential Preference Vote Ballot Status as of April 17, 2020, https://elections.wi.gov/sites/elections.wi.gov/files/2020-04/Ballot%20Data%20as%20of%20April%2017%202020. pdf.
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123. As discussed above, the methods by which the novel coronavirus is transmitted makes voting in person a risky proposition, even for younger voters with no known pre-existing conditions.
124. Even under more normal circumstances, the Absentee Assistance Ban can impose a severe burden on the right to vote that falls disproportionately on low-income, minority, and rural voters who generally have less access to postal service, live in areas lacking reliable access to public transportation and broadband internet, and live farther away from their county election board’s office (typically located in a city center), as well as voters who receive their ballots too late to be sure that they will be delivered to elections officials in time to be counted.
125. Indeed, the Ninth Circuit recently struck down a statute criminalizing the collection and delivery of another’s ballot because it disproportionately burdened minority voters. DNC. v. Hobbs, 948 F.3d 989, 1033 (9th Cir. 2020) (en banc).
126. In the context of the current pandemic, the burdens imposed on the right to vote by the Absentee Assistance Ban are both more severe and more likely to detrimentally impact a substantially larger number of voters. Simply put, it prohibits an absolutely crucial means of ensuring that voters are able to safely and successfully cast an absentee ballot.
127. But for the Absentee Voter Ban, DCCC and the Oklahoma Democratic Party could and would ensure that absentee voting is safe and reliable for many voters by collecting and timely returning voters’ absentee ballots.
128. The Ban’s burden on voters and the organizations serving them far outweighs any State interest in its enforcement.
129. The State has no inherent interest in who returns a ballot. (Indeed, the State probably cannot tell who dropped a particular ballot in the mail.)
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130. The Ban is useful only to the extent that preventing someone other than the voter from returning the ballot also prevents that other person from filling out the ballot. But Oklahoma’s other laws making it a felony to vote another person’s ballot or interfere “with the orderly and lawful conduct of an election” are better tailored to the goal of preventing voter fraud. Okla. Stat. tit. 26, §§ 16-102, 16-113. And, as mentioned above, voter fraud is virtually nonexistent in the State.
131. It is now more critical than ever that organizations like DCCC and the Oklahoma Democratic Party be allowed to help voters safely express themselves at the ballot box.
132. Absent the Ban, DCCC would focus on ensuring low-income communities, including voters living in public housing and high-stress communities, that tend to have fewer polling locations and difficulty staffing these locations, can cast their ballots.
133. Similarly, the Oklahoma Democratic Party would collect the sealed and voted absentee ballots at the voter’s request, particularly concentrating on elderly voters at retirement homes and assisting living facilities to enable those with limited mobility and who lack of ready access to postage to return their completed ballot.
CAUSES OF ACTION COUNT I
First and Fourteenth Amendments U.S. Const. amend. I and XIV, 42 U.S.C. § 1983, 28 U.S.C. §§ 2201–2202
Undue Burden on the Right to Vote (All Challenged Provisions)
134. Plaintiffs reallege and incorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein.
135. Under the Anderson-Burdick balancing test, a court considering a challenge to a state election law must carefully balance the character and magnitude of injury to the First and Fourteenth Amendment rights that the plaintiff seeks to vindicate against “‘the precise interests
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put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’” Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)).
136. “However slight th[e] burden [on the right to vote] may appear, . . . it must be justified by relevant and legitimate state interests sufficiently weighty to justify the limitation.” Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 191 (2008) (Stevens, J., controlling op.) (quotation marks omitted); see also Fish v. Schwab, No. 18-3133, 2020 WL 2050644, at *13 (10th Cir. Apr. 29, 2020).
137. A state may just justify practices that impinge upon fundamental rights by citing concerns about “administrative convenience.” See Taylor v. Louisiana, 419 U.S. 522, 535 (1975).
138. Unless Plaintiffs are granted the relief requested herein, thousands of Oklahoma voters, including Plaintiffs’ members and constituents, will suffer severe burdens on their right to vote as a result of the Challenged Provisions in the upcoming elections, some to the point of complete disenfranchisement.
139. For the reasons discussed, the Notarization/Witness/Photo ID Requirement raise constitutional concerns in any context, but in the current unprecedented public health crisis, the Requirements force voters to violate social distancing measures and interact with other people and touch common objects—all actions that could expose them to COVID-19—and the burdens they impose cannot be justified by any sufficiently weighty State interest.
140. Voter fraud is extremely rare in Oklahoma and in other states without such severe burdens on the absentee voting process. And the State’s interest in maintaining the integrity of its elections is sufficiently served by a voter’s affidavit sworn under penalty of perjury, as the
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Oklahoma Supreme Court decided, combined with the threat of prosecution under Oklahoma’s voter fraud laws for casting another’s ballot. League of Women Voters, 2020 OK 26, 2020 WL 2111348.
141. For the reasons discussed, Oklahoma’s Postage Requirement also imposes an undue burden on the method of voting that is indisputably the safest during these unprecedented times. Its burdens, moreover, fall more severely on low-income voters, who already bear the brunt of the ongoing public health emergency. But no voter should be forced to leave his or her home in the middle of a pandemic in search of a stamp in order to exercise his or her most fundamental right. The only plausible State interest justifying the Requirement is a lack of administrative resources. But that concern cannot outweigh the heavy burden that it imposes on voters.
142. The Election Day Receipt Deadline similarly imposes a severe burden on the fundamental right to vote, especially during the COVID-19 crisis, as the U.S. Supreme Court recently recognized in RNC v. DNC. Even before the pandemic began, the Election Day Receipt Deadline disenfranchised thousands of Oklahomans. Now, it threatens to disenfranchise thousands more. The State cannot offer an interest substantially weighty enough to overcome the burdens imposed on voters’ fundamental rights.
143. Finally, the Absentee Assistance Ban unduly burdens the right to vote because it cannot be justified by State interests under any circumstances, but in the current circumstances in particular, it denies Oklahoma voters the safest and most effective option to return their absentee ballots. The State’s interest is in ensuring that the voter lawfully marks his or her own ballot, not in preventing others from assisting the lawful voter in returning that sealed and voted ballot. Oklahoma has many laws tailored to this specific interest, including making it a felony to fill out another’s ballot, influence the vote of another, and/or interfere with the conduct of any election.
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There is thus no justifiable basis for burdens that the Ban imposes under any circumstances, but this is doubly so during the ongoing health crisis.
144. Because the Challenged Provisions do not sufficiently support a State interest to justify the resulting burdens on the right to vote, they violate the First and Fourteenth Amendments.
COUNT II Poll Tax
U.S. Const. amends. XIV and XXIV, 42 U.S.C. § 1983 Imposition of a Poll Tax (Postage Requirement)
145. Plaintiffs reallege and incorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein.
146. The Twenty-Fourth Amendment to the U.S. Constitution provides: “The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.” U.S. Const. amend XXIV, § 1. Voters must not have to pay “a price for the privilege of exercising the franchise.” Harman v. Forssenius, 380 U.S. 528, 539 (1965).
147. Oklahoma’s requirement that voters pay for postage in order to vote absentee imposes an unconstitutional poll tax in violation of the Twenty-Fourth Amendment. Voting absentee is the only option that allows voters to stay safely in their homes during the COVID-19 crisis.
148. For the reasons stated above, Defendants have deprived and will continue to deprive Plaintiffs and its members and constituents of their right to vote in federal elections, granted to them by the Twenty-Fourth Amendment to the U.S. Constitution and protected by 42 U.S.C. § 1983.
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COUNT III Due Process U.S. Const. Amend. XIV, 42 U.S.C. § 1983 Denial of Procedural Due Process (Election Day Receipt Deadline) 149. Plaintiffs reallege and incorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. 150. The Due Process Clause of the U.S. Constitution prohibits the states from depriving “any person of . . . liberty . . . without due process of law.” U.S. Const. amend. XIV, § 1. Which protections are due in a given case requires a careful analysis of the importance of the rights and the other interests at stake. See Mathews v. Eldridge, 424 U.S. 319, 334–35 (1976). 151. Courts must first consider the nature of the interest that will be affected by the government’s actions as well as the “degree of potential deprivation that may be created” by existing procedures. Id. at 341. Second, courts consider the “fairness and reliability” of the existing procedures “and the probable value, if any, of additional procedural safeguards.” Id. at 343. Finally, courts consider the public interest, which “includes the administrative burden and other societal costs that would be associated with” additional or substitute safeguards. Id. at 347 “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Id. at 334 (quotation and citation omitted). 152. Oklahoma’s absentee voting system must comport with due process. See Raetzel v. Parks/Bellemont Absentee Election Bd., 762 F. Supp. 1354, 1358 (D. Ariz. 1990). “Such due process is not provided when the election procedures [for voting absentee]” do not adequately protect the right to vote or ensure that an “individual is not continually and repeatedly denied so fundamental a right.” Id.; see also Saucedo v. Gardner, 335 F. Supp. 3d 202, 217 (D.N.H. 2018) (“Having induced voters to vote by absentee ballot, the State must provide adequate process to ensure that voters’ ballots are fairly considered and, if eligible, counted.”).
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153. The nature of the interest at stake in this case⸺the right to vote and to have that vote count⸺is the most precious liberty interest of all because it is tied to all other basic civil and political rights.
154. Oklahoma’s existing absentee voting procedures too often disenfranchise voters because (1) many voters do not learn of the Election Day Receipt Deadline before Election Day, and (2) even voters who do learn of the Election Day Receipt Deadline may not have their ballots counted, through no fault of their own, if they do not arrive at their county election board’s office by 7:00 p.m. on Election Day.
155. Oklahoma’s Election Day Receipt Deadline is neither a reliable nor fair way to administer voting absentee. The Election Day Receipt Deadline and the corresponding cutoff for casting ballots is unreliable because many voters are not even sent their absentee ballots until after the mailing cutoff, leaving them with no safe mail alternative for their votes to be counted. Nor is the Election Day Receipt Deadline fair because it forces those voters to cast their ballots with incomplete information and before candidates have delivered their final messages to voters.
156. The value of additional or substitute procedural safeguards to ensure that the absentee ballots of Oklahoma voters are both meaningfully cast and actually counted is readily apparent. A substitute procedure⸺requiring absentee ballots to be postmarked on or before Election Day and received by the county within seven days after Election Day to be counted, and moving the county and state certification dates by a week⸺resolves the inequities inherent in Oklahoma’s Election Day Receipt Deadline.
157. A postmark date not only offers a reliable date to Oklahoma voters by which they must cast their ballots, but it also ensures that voters who receive their ballots late, through no fault of their own, are still able to engage in the franchise. A postmark date additionally ensures that all
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of Oklahoma’s voters can consider any information that may arise and influence their choices in the final week of the election.
158. Having introduced the option to vote absentee, Oklahoma must establish adequate procedures to ensure that voters have a reliable, fair, and effective method to cast their ballots. Because Oklahoma’s Election Day Receipt Deadline is inadequate, and the State is readily capable of instituting a substitute procedure which would protect those voters’ rights with minimal burden to the State, Oklahoma’s Election Day Receipt Deadline violates voters’ procedural due process rights.
COUNT IV Free Speech and Association U.S. Const. Amend. I, 42 U.S.C. § 1983 Violation of Free Speech and Associational Rights (Absentee Assistance Ban) 159. Plaintiffs reallege and incorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. 160. The First Amendment protects against the passage and enforcement of laws “prohibiting the free exercise [of] or abridg[ment] of freedom of speech.” U.S. Const. amend. I. 161. The Supreme Court has applied “exacting scrutiny” to review laws governing election-related speech. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 345 (1995); see also League of Women Voters v. Hargett, 400 F. Supp. 3d 706, 722 (M.D. Tenn. 2019) (“[L]aws that govern the political process surrounding elections—and, in particular, election-related speech and association—go beyond merely the intersection between voting rights and election administration, veering instead into the area where ‘the First Amendment has its fullest and most urgent application.’”) (quoting Eu v. S.F. Cty. Democratic Cent. Comm., 489 U.S. 214, 223 (1989)).
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162. Restrictions on such speech are unconstitutional when they “significantly inhibit” election-related speech and association and are “not warranted by the state interests . . . alleged to justify [the] restrictions.” Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 192 (1999).
163. Voter turnout efforts, including assisting voters with the return of their sealed and voted ballots, is one way in which DCCC and Oklahoma Democratic Party communicate their belief in the power and importance of participating in democratic elections.
164. Such activity is “the type of interactive communication concerning political change that is appropriately described as ‘core political speech.’” Meyer v. Grant, 486 U.S. 414, 422-23 (1988); cf. League of Women Voters, 400 F. Supp. 3d at 720 (“Encouraging others to register to vote is pure speech, and, because that speech is political in nature, it is a core First Amendment activity.” (quotation marks and alterations omitted)).
165. The act of assisting voters by delivering completed ballots is inherently expressive, and an individual or organization that conducts such activities engages in speech by encouraging voting. See Bernbeck v. Moore, 126 F.3d 1114, 1115 (8th Cir. 1997) (rejecting argument that regulating an election “process” raises no First Amendment concerns).
166. These initiatives also facilitate the political participation of voters who have experienced historically low turnout rates when compared to the rest of the population, or who for various reasons, including disability, advanced age, or lack of access to transportation, would have difficulty voting.
167. This is why DCCC’s and Oklahoma Democratic Party’s ability to collect and deliver sealed and voted ballots would significantly further their missions to serve underrepresented populations as well as their members’ and constituents’ access to the ballot box.
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168. Furthermore, First Amendment rights “include the right to band together for the advancement of political beliefs.” Hadnott v. Amos, 394 U.S. 358, 364 (1969). “An organization’s attempt to broaden the base of public participation in and support for its activities is conduct ‘undeniably central to the exercise of the right of association.’” Am. Ass’n of People with Disabilities v. Herrera, 690 F. Supp. 2d 1183, 1202 (D.N.M. 2010) (citing Tashjian v. Republican Party of Conn., 479 U.S. 208, 214–15 (1986)).
169. The conversations and interactions between DCCC and Oklahoma Democratic Party and their respective organizers and voters surrounding the submission of ballots are forms of protected political speech and association. See Williams v. Rhodes, 393 U.S. 23, 30 (1968) (describing “overlapping” rights “of individuals to associate for the advancement of political beliefs” and “of qualified voters . . . to cast their votes effectively”); Project Vote v. Blackwell, 455 F. Supp. 2d 694, 700–01 (N.D. Ohio 2006) (explaining “participation in voter registration implicates a number of both expressive and associational rights which . . . belong to—and may be invoked by—not just the voters seeking to register, but by third parties who encourage participation in the political process”).
170. Oklahoma’s Absentee Assistance Ban violates that protection by “limit[ing] the number of voices who will convey [DCCC’s and Oklahoma Democratic Party’s] message,” and “the size of the audience they can reach[,]” thereby burdening the speech and associational rights of DCCC and Oklahoma Democratic Party and the voters they serve. Meyer, 486 U.S. at 422–23.
171. These burdens are severe, and the Absentee Assistance Ban is not narrowly tailored to advance a compelling State interest. Indeed, given the current public health crisis, the type of speech that DCCC and Oklahoma Democratic Party seek to engage in is “the most effective,
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fundamental, and [likely] economical avenue of political discourse[;]” yet it is directly foreclosed
by the Absentee Assistance Ban. Id. at 424.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court enter judgment in their favor
and against Defendants, and:
A. Preliminarily and permanently enjoin the Notarization/Witness/Photo ID Requirement;
B. Enjoin Defendants and their respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them, from rejecting ballots for failure to comply with the Notarization/Witness/Photo ID Requirement so long as the voter has signed his or her ballot affidavit, which shall be done under penalty of perjury;
C. Declare that the Postage Requirement violates the Fourteenth and Twenty-Fourth Amendments as an unconstitutional poll tax;
D. Preliminary and permanently enjoin Defendants, their respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them, from requiring that voters provide postage on their absentee ballots and further require that Oklahoma provide prepaid postage on all absentee ballots;
E. Declare that the Election Day Receipt Deadline violates the Due Process Clause;
F. Preliminary and permanently enjoin Defendants, their respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them, from rejecting ballots that are postmarked by Election Day and arrive at their respective county election board within seven days, and to interpret the term “postmark” to refer to any type of imprint applied by the USPS to indicate the location and date the USPS accepts custody of a piece of mail, including bar codes, circular stamps, or other tracking marks, and, where a ballot does not bear a postmark date, requiring the State to presume that the ballot was mailed on or before Election Day unless the preponderance of the evidence demonstrates it was mailed after Election Day,
G. Enjoin the county certification deadline of the Friday after Election Day and the state certification deadline of the Tuesday after Election Day, and postpone each by a week;
H. Declare that the Absentee Assistance Ban violates the First Amendment as an unreasonable restriction on speech and association;
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Case 4:20-cv-00211-JED-JFJ Document 2 Filed in USDC ND/OK on 05/18/20 Page 39 of 40 I. Preliminary and permanently enjoin Defendants, their respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them, from enforcing the Absentee Assistance Ban, thus allowing voters to designate any third party⸺whether paid or not⸺to assist in the collection and submission of their absentee ballots; J. Award Plaintiff its costs, expenses, and reasonable attorneys’ fees pursuant to, inter alia, 42 U.S.C. § 1988 and other applicable laws; and K. Grant Plaintiff such other and further relief as the Court deems just and proper.
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DATED: May 18, 2020

s/ Frank W. Frasier Frank W. Frasier, OK# 17864 FRASIER, FRASIER & HICKMAN, LLP 1700 Southwest Boulevard Tulsa, OK 74107 Telephone: 918.584.4724 Facsimile: 918.583.5637 FFrasier@frasierlaw.com
Marc E. Elias* John Devaney* Ariel B. Glickman* PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 800 Washington, DC 20005-3960 Telephone: 202.654.6200 Facsimile: 202.654.6211 MElias@perkinscoie.com JDevaney@perkinscoie.com AGlickman@perkinscoie.com
Charles G. Curtis, Jr.* Sopen B. Shah* PERKINS COIE LLP 33 East Main Street, Suite 201 Madison, WI 53703-3095 Telephone: 608.663.7460 Facsimile: 608.663.7499 CCurtis@perkinscoie.com SShah@perkinscoie.com
Counsel for Plaintiff * Pro Hac Vice Motion Forthcoming

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 Case 4:20-cv-00211-JED-JFJ Document 18 Filed in USDC ND/OK on 06/11/20 Page 1 of 45

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OKLAHOMA

(1) DCCC and (2) OKLAHOMA DEMOCRATIC PARTY,

Case No. 4:20-cv-211-JED-JFJ

Plaintiffs,
v.
(1) PAUL ZIRIAX, in his official capacity as the Secretary of the Oklahoma State Election Board;

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

(2) TOM MONTGOMERY, in his official capacity as Chairman of the Oklahoma State Election Board;

(3) DR. TIM MAULDIN, in his official capacity as Vice-Chairman of the Oklahoma State Election Board;

(4) HEATHER MAHIEU CLINE, in her official capacity as a member of the Oklahoma State Election Board;

(5) JERRY BUCHANAN, in his official capacity as an alternate member of the Oklahoma State Election Board; and

(6) DEBI THOMPSON, in her official capacity as an alternate member of the Oklahoma State Election Board,

Defendants.

Plaintiffs DCCC and the OKLAHOMA DEMOCRATIC PARTY file this Amended Complaint for Injunctive and Declaratory Relief against Defendants PAUL ZIRIAX, in his official capacity as the Secretary of the Oklahoma State Election Board (the “State Board”); TOM MONTGOMERY, in his official capacity as Chairman of the State Board; DR. TIM MAULDIN, in his official capacity as Vice-Chairman of the State Board; HEATHER MAHIEU CLINE, in her official capacity as a member of the State Board; and JERRY BUCHANAN and DEBI

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THOMPSON, in their official capacities as alternate members of the State Board, and allege as follows:
STATEMENT OF THE CASE 1. A highly infectious novel coronavirus is spreading rapidly through the United States and the State of Oklahoma. As of the date of this filing, 7,626 Oklahoma residents have tested positive for COVID-19—the disease caused by the coronavirus—and it has officially claimed the lives of 357 Oklahomans. These numbers are increasing daily. Indeed, the Oklahoma State Department of Health has identified 2,540 new cases of COVID-19 since Plaintiffs filed their original complaint on May 18, 2020, just three weeks ago, and within that period of time, 72 additional Oklahomans have suffered fatal complications due to the virus. Yet, the Director of the Centers for Disease Control and Prevention (“CDC”) is already cautioning of a second, more deadly wave coming in the fall, which he predicted will “be even more difficult than the one we just went through.” It is anticipated to coincide with the beginning of flu season, just when Oklahoma’s voters would ordinarily head to the polls to vote in the coming November 3, 2020 general election (the “November Election”). Thus, both the upcoming June 30, 2020 primary and the November Election are projected to occur during a public health crisis, the likes of which this country has not seen for over 100 years. 2. The disease spreads mainly from person-to-person transfer through respiratory droplets when an infected person coughs, sneezes, or even, in some cases, speaks or breathes. It has been increasingly discovered that a substantial number of people have become infected by contact with an entirely asymptomatic or pre-symptomatic carrier of the virus. Super-spreaders who are unaware that they are infected have spread the virus to large numbers of people at family gatherings, in their workplaces, at restaurants, at indoor sporting events, and even at a choir
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practice. It is highly contagious and causes severe symptoms and even death in people of all ages. Elderly Americans are particularly at risk, but so are younger Americans with relatively common pre-existing conditions, such as asthma. Some healthy young people have died of the virus, while others have suffered severe and debilitating large vessel strokes. More recently, an increasing number of children are exhibiting alarming symptoms that seem to be the result of an immunological response after they have fought off the virus. Some have ended up on ventilators, and a few have died. Experts cannot predict whether a particular person will die or suffer serious complications from the virus. Nor can anyone predict who will become an asymptomatic spreader, unwittingly infecting their friends, loved ones, and even strangers who they interact with as they go about their daily lives.
3. As a result, public health experts around the globe, including in local and federal government here in the United States, have strongly encouraged broad social distancing and selfisolation measures in an attempt to flatten the curve of the virus while we learn how—and ensure that our hospitals have the capacity to—fight it. Consistent with that guidance, Oklahoma Governor Kevin Stitt has issued a series of executive orders in response to the crisis. The first was issued on March 15, 2020, when he declared an emergency in all 77 Oklahoma counties “caused by the impending threat of COVID-19” to Oklahomans “and the public’s peace, health, and safety.”1 He ordered all residents over the age of 65 and those who have “serious underlying medical conditions” to stay home “to protect the health and lives of Oklahomans, especially our vulnerable populations,” and directed those who do leave their homes to engage in social

1

Governor’s

Exec.

Orders

regarding

COVID-19,

https://www.ok.gov/okdocc/News_Media/Governor's_Executive_Orders_regarding_COVID-19/index.html.

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distancing “by staying out of crowded places, not gathering in groups, and staying at least 6 feet from other people.”2
4. The CDC has recommended that, in light of the significant health risks that requiring people to congregate in large numbers currently pose, jurisdictions encourage voters to vote absentee and broadly reduce methods of voting that lead to direct contact with other people, including among voters and between voters and poll workers. Jurisdictions that have held elections since the crisis began have, not surprisingly, found that extraordinarily high numbers of voters are choosing to exercise their right to vote absentee, while at the same time people who in the past would have volunteered to staff the polls (many of whom are elderly and thus in a particularly high-risk group for serious complications from COVID-19) are refusing to do so, and many locations that previously served as polling places, such as senior centers and schools, are unwilling to open their doors for that purpose.
5. In Oklahoma, too, it is certain that large numbers of voters will turn to voting absentee in order to exercise their right to the franchise. Oklahoma permits all of its registered voters to apply to vote absentee. Okla. Stat. tit. 26, § 14-105. But mere statutory access to voting absentee is not sufficient to protect voters’ constitutional rights in the face of this pandemic. As the U.S. Supreme Court said long ago, “There is more to the right to vote than the right to mark a piece of paper and drop it in a box or the right to pull a lever in a voting booth. The right to vote includes the right to have the ballot counted.” Reynolds v. Sims, 377 U.S. 533, 555 n.29 (1964) (citation and quotation omitted). Oklahoma law currently imposes several burdensome restrictions and procedures that threaten to deny countless of the State’s lawful, eligible voters this right. Unless rectified, these barriers will force voters to choose between their health and the health and
2 See, e.g., Exec. Dep’t Fourth Am. Exec. Order 2020-13, Apr. 24, 2020, https://www.sos.ok.gov/documents/executive/1937.pdf (emphasis added).
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safety of their community on the one hand, and their fundamental right to vote on the other. This is a choice that the U.S. Constitution does not permit states to force its voters to make.
6. The provisions at issue are Oklahoma’s (1) onerous and unnecessarily burdensome notarization, witnessing, and photo ID requirements, Enr. S.B. 210; Okla. Stat. tit. 26, §§ 14-113.2, 16-123.1 (the “Notarization, Witness, and Photo ID Requirements”), (2) refusal to prepay for postage to return completed absentee ballots (the “Postage Requirement”); (3) rejection of absentee ballots delivered after 7:00 p.m. on Election Day, Okla. Admin. Code § 230:30-11-5(a); Okla. Stat. tit. 26 § 14-104; (the “Election Day Receipt Deadline”); (4) criminalization of organizations, like Plaintiffs DCCC and the Oklahoma Democratic Party, for engaging in the activities of requesting or receiving absentee ballots on behalf of their constituents, Enr. S.B. 1779, §§ 1(A)(1)–(4), (B)(1), 12, 14 (the “Ballot Request Criminalization”); (5) prevention of anyone from collecting sealed and voted absentee ballots, except in the case of physically incapacitated or emergency incapacitated voters, Okla. Admin. Code §§ 230:30-9-6(g), 230:30-11-1.1(a); Okla. Stat. tit. 26, §§ 14-108(A), 14-115.1 (the “Absentee Assistance Ban”); and (6) criminalization of the same, Enr. S.B. 1779, §§ 1(A)(2), (B)(1), 12, 14 (the “Absentee Assistance Criminalization”).
7. Absent injunctive and declaratory relief, these laws (together, the “Challenged Provisions”) will operate independently and together to severely burden the right to vote of thousands of Oklahomans, in many cases resulting in complete disenfranchisement. For these reasons and those set forth below, this Court should declare unconstitutional and enjoin each of the Challenged Provisions.
JURISDICTION AND VENUE 8. Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 to redress the deprivation, under color of state law, of rights secured by the U.S. Constitution.
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9. This Court has original jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the U.S. Constitution and laws of the United States.
10. This Court has personal jurisdiction over Defendants, members of the Oklahoma State Election Board, who are sued in their official capacities only.
11. Venue is proper in this Court under 28 U.S.C. § 1391(b) because all Defendants are residents of Oklahoma, in which this judicial district is located, and a substantial part of the events that gave rise to Plaintiffs’ claims occurred in this judicial district.
12. This Court has the authority to enter a declaratory judgment and preliminary and permanent injunctive relief pursuant to Federal Rules of Civil Procedure 57 and 65 and 28 U.S.C. §§ 2201 and 2202.
PARTIES 13. Plaintiff DCCC is the national congressional committee of the Democratic Party, as the term is defined by and used in 52 U.S.C. § 30101(14). Its mission is to elect Democrats to Congress, including from Oklahoma’s five congressional districts. DCCC works to accomplish its mission by, among other things, making expenditures for, and contributions to, Democratic candidates for U.S. Congress and assisting state parties throughout the country, including in Oklahoma. DCCC intends to expend significant resources to support Democratic candidates in the State this year. 14. For example, DCCC will devote considerable time educating an Oklahoma-based field team to engage in aggressive get-out-the-vote (“GOTV”) efforts, including educating voters about voting absentee, distributing absentee ballot applications to voters, and mobilizing and turning out voters in Oklahoma elections this year.
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15. DCCC’s efforts will include focusing on supporting specific subsets of voters, including low income voters, voters whose essential work (including e.g., in medical care, food delivery, and grocery stores, to mention just a few) puts them at higher risk of contracting the virus, as well as on elderly voters, who are at high risk of complications from COVID-19, and thus have a significant need to vote absentee.
16. DCCC will have to devote substantial time and resources explaining the Challenged Provisions as part of its voter education efforts, including the Notarization, Witness, and Photo ID Requirements, which did not exist in their current form before this election. DCCC will need to inform voters that they must have their ballots notarized or, if they are “physically incapacitated” under the Legislature’s new definition of that term or caring for someone “physically incapacitated,” they must have their ballots witnessed by two individuals or submitted with a photocopy of valid photo identification. DCCC also will have to divert more resources to educating voters about what types of identification are permissible, and that the individual is submitting the affidavit under penalty of perjury. DCCC will also need to instruct voters about the limited number of ballots notaries and witnesses are permitted to sign.
17. In addition, DCCC will have to divert resources to explain the process for returning absentee ballots, including the methods (in person and by mail), the Postage Requirement, and the Election Day Receipt Deadline. DCCC will be required to divert resources to give guidance on when voters should mail their absentee ballots to ensure that they are received in time to be counted.
18. DCCC’s efforts would also include requesting absentee ballots on behalf of their constituents and assisting voters in delivering their sealed and voted ballots if asked, if not for the Ballot Request Criminalization, Absentee Assistance Ban, and Absentee Assistance
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Criminalization. But for the Ballot Request Criminalization, Absentee Assistance Ban, and Absentee Assistance Criminalization, DCCC would be able to concentrate on helping primarily low-income communities that cannot access the internet or tend to have a harder time accessing or navigating the internet, and have fewer polling locations and difficulty staffing these locations— for whom requesting an absentee ballot is more difficult and for whom ballot collection is particularly important.
19. The Challenged Provisions directly harm DCCC by frustrating its missions of turning out Democratic voters who face greater obstacles to voting, such as the elderly and lowerincome voters, and electing Democratic candidates. The provisions make it harder for Democratic voters, DCCC’s constituents who associate with them to further their shared political and expressive ends, to vote. For example, the Notarization Requirement makes voting more burdensome by requiring many Democratic voters to leave their houses during a pandemic to locate notaries, who are difficult to find in the State and inaccessible to many, including lowincome and rural voters. There are also an insufficient number of notaries for all registered voters to cast their ballots. Because fewer voters will be able to vote for Democratic candidates for U.S. Congress, the Challenged Provisions harm the Democratic candidates DCCC supports in Oklahoma. In addition, decreased voter turnout undermines DCCC’s fundamental right to choose its standard bearers through a vote that accurately reflects the preferences of Democratic Party membership.
20. Plaintiff the Oklahoma Democratic Party is the Oklahoma state party committee of the national Democratic Party, as the term is defined by and used in 52 U.S.C. §§ 30101(4), (15), and a political party within the meaning of 52 U.S.C. § 30101(16). The Oklahoma Democratic Party is certified by the State Board to nominate candidates for office to be voted on in a general
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or special election and nominates candidates on a regular basis by party primary. Okla. Stat. tit. 26, § 1-102. The Oklahoma Democratic Party has an interest in ensuring that voters have an opportunity to express their will regarding Democratic Party candidates running for elections, as well as ballot measures and initiatives those individuals support. The Oklahoma Democratic Party has hundreds of thousands of members and constituents from across the State, including Oklahomans who regularly support candidates affiliated with the Democratic Party and Democratic Party candidates. To accomplish its purpose, the Oklahoma Democratic Party engages in vitally important activities, including GOTV activities to support Democratic Party candidates in national, state, and local elections through a meaningful opportunity to cast ballots in Oklahoma.
21. These activities include broad-based education campaigns for Democratic voters on the procedures and deadlines for voting both absentee and in person, including how to comply with the Challenged Provisions.
22. This year in particular, the Oklahoma Democratic Party’s GOTV efforts are even more important due to voter confusion surrounding the Notarization, Witness, and Photo ID Requirements. The Oklahoma Democratic Party has already had to divert resources to respond to a high volume of calls and emails from Democratic voters unsure whether they must have their ballots notarized. This is due to the Oklahoma Supreme Court striking down a notarization requirement, only for the Legislature to enact a few days later the brand new and more complicated Notarization, Witness, and Photo ID Requirements. As a result of voter confusion, the Oklahoma Democratic Party will be required to divert resources to engage in paid canvassing and paid social media to clarify how voters must complete their ballots. This includes informing voters that they must have their ballots notarized or, if they are “physically incapacitated” under the Legislature’s
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new definition of that term or caring for someone “physically incapacitated,” they must have their ballots witnessed by two individuals or submitted with a photocopy of valid photo identification.
23. Due to the Notarization, Witness, and Photo ID Requirements, the Oklahoma Democratic Party has diverted resources from other programs and day-to-day activities that are core to its mission, including programs to elect Democratic Party candidates in Oklahoma, in order to attempt to help its voters overcome the barriers presented by the lack of safe means to cast their ballots. In addition, because a significant number of Oklahoma voters will be voting absentee for the first time this year, the Oklahoma Democratic Party will need to further divert resources to educate voters on how to complete their absentee ballots, despite the Challenged Provisions. This diversion of resources will only increase, and will be unprecedented, as the primary and general elections get closer.
24. Moreover, the Oklahoma Democratic Party’s efforts would also include assisting voters in requesting absentee ballots and delivering their sealed and voted ballots if asked, if not for the Ballot Request Criminalization, Absentee Assistance Ban, and Absentee Assistance Criminalization. But for the Ballot Request Criminalization, Absentee Assistance Ban, and Absentee Assistance Criminalization, the Oklahoma Democratic Party would concentrate on helping voters—particularly those with limited mobility, no internet or limited access to the internet, and/or lack of ready access to postage—who reside in retirement homes and assisted living homes, and for whom help in requesting absentee ballots and collecting their sealed and voted ballots is particularly important to ensure that they are able to obtain and timely return their ballots to the appropriate elections officials.
25. An election held without accounting for the COVID-19 pandemic directly harms the Oklahoma Democratic Party because it frustrates its mission and the effectiveness of its efforts
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to persuade and mobilize voters to vote for Democratic candidates and causes. The Challenged Provisions impede Democratic voters’ ability to exercise their constitutional right to vote. For example, the Notarization, Witness, and Photo ID Requirements impose an undue burden on many Democratic voters who are confused, so close to the primary election, whether they need to have their absentee ballot notarized, and who would have to leave their houses during a pandemic to locate notaries. Because fewer voters will be able to vote for Democratic candidates, the Challenged Provisions harm the Democratic candidates the Oklahoma Democratic Party supports. In addition, decreased voter turnout undermines the Oklahoma Democratic Party’s fundamental right to choose its standard bearers through a vote that accurately reflects the preferences of Democratic Party membership.
26. Defendant Paul Ziriax is the Secretary of the Oklahoma State Election Board, the State’s chief election official, and is named as a Defendant in his official capacity. The Secretary oversees county election boards and is responsible for “promulgat[ing], repeal[ing] or modify[ing]” rules or regulations to “maintain[ ] uniformity in the application, operation and interpretation of the state and federal election laws[.]” Okla. Stat. tit. 26, § 2-107.
27. Defendant Tom Montgomery is the Chairman of the Oklahoma State Election Board and is named as a Defendant in his official capacity. Defendant Dr. Tim Mauldin is the Vice-Chairman of the Oklahoma State Election Board and is named as a Defendant in his official capacity. Defendant Heather Mahieu Cline is a member of the Oklahoma State Election Board and is named as a Defendant in her official capacity. Defendants Jerry Buchanan and Debi Thompson are alternate members of the Oklahoma State Election Board and are named as Defendants in their official capacities. These Defendants compose the Oklahoma State Election Board. Their
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responsibilities include, but are not limited to, administering and enforcing Oklahoma’s election laws and overseeing elections. See id. § 2-106; Okla. Const. art. 3, § 2.
28. At all times relevant to this action, Defendants have acted under color of state law. STATEMENT OF FACTS AND LAW
A. As the COVID-19 pandemic persists, an unprecedented number of Oklahomans will rely upon voting absentee. 29. Because of the risks of voting in person in the midst of this unprecedented public
health crisis, states that have held elections since the pandemic begun have experienced dramatic increases in voting absentee by eligible voters.
30. For example, Wisconsin reported issuing almost 1.3 million absentee ballots in the primary election it held in April, representing a striking increase from a total of 101,803 during the 2016 primary.
31. That same month, Ohio experienced a 421 percent increase in requests to vote absentee in its primary when compared with absentee voter turnout in 2016, the last time the State held a primary in a presidential election year.
32. There is no reason to expect that Oklahoma’s electorate will not similarly choose overwhelmingly to vote absentee.
33. In the midst of the pandemic, the risks of voting in person remain significant even when elections officials attempt to comply with social distancing and sanitizing requirements.
34. In Wisconsin, for example, where thousands of voters did not receive their requested absentee ballots in time to vote or return them in time to be counted, a significant number of voters presented in person at the polls to vote on Election Day. Although the State imposed social distancing and took other precautions against the spread of the virus, public officials have
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identified over 70 people, including poll workers, who tested positive for COVID-19 after voting or working at polling places in the primary election.
35. Even before Wisconsin, the CDC, recognizing the serious risks involved, advised states to encourage voting absentee and recommended that voters “use voting methods that minimize direct contact with other people and reduce crowd size at polling stations.”
36. Defendant Ziriax declared an “election emergency” in Oklahoma on March 18 and again on April 10, agreeing with the CDC’s recommendations. The first election emergency “require[d] County Election Boards to accept resolutions adopted by the governing bodies of school districts, municipalities, technology districts and counties to move their April 7 elections to another date” to “help efforts to flatten the COVID-19 curve.”3 The second “election emergency” involved the “contests of candidacy”⸺where a candidate for state or federal office can challenge another’s candidacy for the same office⸺scheduled for April 21. Although the Board “historically held all contest of candidacy hearings” in the State Capitol open to the public, Defendant Ziriax agreed with “recommendations from the” CDC, “the Oklahoma State Department of Health” “and other health experts that large public gatherings should be limited in an effort to decrease the risk of the community spread of COVID-19.” As a result, he “strongly encouraged” everyone to attend the contests by teleconference or videoconference.4
37. Even as Oklahoma begins to reopen, Governor Stitt has stated that Oklahomans “must continue to be diligent about washing [their] hands frequently, maintaining physical distance

3 Okla. State Election Bd., State Election Board Secretary Declares Election Emergency; Authorizes Local Entities to

Reschedule

(Mar.

18,

2020),

https://www.ok.gov/triton/modules/newsroom/newsroom_article.php?id=196&article_id=56539.

4 Okla. State Election Bd., Declaration of Election Emergency 2020-02 (Apr. 10, 2020),

https://www.ok.gov/elections/documents/DECLARATION%20OF%20ELECTION%20EMERGENCY%202020-

02-Sealed%20and%20Notarized.pdf.

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and protecting [the] most vulnerable populations[,]” including adults over the age of 65 and those with underlying health conditions that renders the risks after contracting COVID-19 more severe.5
38. Since 1995, Oklahoma has permitted all registered voters to vote absentee in any state and federal election without an excuse. See Laws 1995 c.290, § 14-105, eff. Nov. 1, 1995 (SB 556).
39. Voters may apply for absentee ballots electronically, by fax, mail, telegram, or in person. See Okla. Admin. Code §§ 230:30-5-13(a), 230:30-9-9.
40. But mere statutory access to absentee voting is not sufficient to protect voters’ constitutional rights in the face of this pandemic.
41. At issue in this case are several provisions of Oklahoma law that impose burdensome restrictions and procedures that threaten to deny countless of the State’s lawful, eligible voters the right not only to cast an absentee ballot, but to have it counted. B. The Notarization, Witness, and Photo ID Requirements are dangerous for Oklahoma
voters and cannot be justified by sufficiently weighty state interests. 42. Oklahoma requires that elections officials reject absentee ballots unless they have their absentee ballot affidavit notarized. Okla. Stat. tit. 26, § 14-108. The affidavit is a separate document sent to the voter with the ballot “stating that the voter is qualified to vote and that the voter has personally marked the ballots, and has not exhibited the marked ballots to any other person” (the “Notarization Requirement”). Id. § 14-107(A)(2). The only exceptions to the Notarization Requirement are for (1) physically incapacitated voters, (2) voters who are caregivers
5 Press Release, Gov. Kevin Stitt, Oklahoma to Begin Phase 3 of Open Up and Recover Safely Plan on June 1 (May 29, 2020), available at https://www.governor.ok.gov/articles/press_releases/oklahoma-to-begin-phase-3-of-open-upand-recover; see also Exec. Dep’t Exec. Order 2020-20, May 30, 2020, https://www.sos.ok.gov/documents/executive/1946.pdf.2
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for physically incapacitated voters, and (3) voters who provide a photocopy of certain specific forms of photo identification (the “Photo ID Requirement”). Id. §§ 14-110.1, 14-113.2(A).
43. The Photo ID Requirement was created by the Legislature in response to the Oklahoma Supreme Court decision in The League of Women Voters of Okla. v. Ziriax, No. 118765, -- P.3d --, 2020 OK 26, 2020 WL 2111348 (Okla. May 4, 2020) (citing Okla. Stat. tit. 12, § 426), issued last month, in which the Court struck down the Notarization Requirement for all other voters, finding that it was sufficient for voters to, instead, simply sign the ballot affidavit under penalty of perjury.
44. Four days later, the Legislature approved SB 210, which reinstated the Notarization Requirement and created the Photo ID Requirement, which allows a voter to avoid the Notarization Requirement if they both sign their ballot affidavit under penalty of perjury and submit, with their ballot, a photocopy of a form of photo identification that Oklahoma would deem acceptable had the voter cast his or her ballot in person. Okla. Stat. tit. 26, § 7-114 (listing acceptable forms of photo ID).
45. Under Oklahoma law, qualifying photo identification for voting purposes must contain a name, photograph, and expiration date after the election, and be issued by “the United States, the State of Oklahoma or the government of a federally recognized Indian tribe or nation.” Id. A “voter identification card issued by the appropriate county election board” also counts. Id.
46. The Photo ID Requirement also allows a physically incapacitated voter, and those caring for physically incapacitated voters, to avoid having to have two individuals witness the voter’s signature and sign their signatures and addresses (the “Witness Requirement”, id. § 14-113.2(A)), if the voters sign their ballot affidavit under penalty of perjury and submit, with
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their ballot, a photocopy of a form of photo identification that Oklahoma would deem acceptable had the voter cast his or her ballot in person.
47. Each of these requirements, which are referred to collectively throughout this Amended Complaint as the Notarization, Witness, and Photo ID Requirements, impose substantial, unjustifiable burdens on Oklahoma voters who vote absentee.
The Notarization Requirement 48. The Notarization Requirement requires that absentee voters who are not physically incapacitated or caring for physically incapacitated persons get their ballot affidavits notarized. Id. § 14-108. 49. Almost all Oklahomans who need to find a notary will have to leave their homes in order to do so. 50. There are currently 76,458 notaries registered in Oklahoma, as compared with the 2.09 million voters registered in Oklahoma, as of January 2020. 51. Thus, in nearly all cases, the Notarization Requirement will compel the voters who must satisfy it to interact with another person—almost certainly outside of their home—and touch common objects, risking exposure to COVID-19, in order to exercise their right to vote. 52. Oklahoma further forbids a notary from notarizing more than 20 ballots in a given election unless the notary is at his or her place of business. Id. § 14-108.1. Yet, as a result of the COVID-19 epidemic, substantial numbers of the State’s notaries are likely not working from their “place of business,” as many businesses remain shuttered for the safety of Oklahoma citizens. 53. As a result, even if some number of notaries were willing to make themselves available and literally go door-to-door in order to notarize absentee ballots, finding some way to
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do so in a manner that kept themselves and the voters safe, they would be limited in their reach because of the restrictions placed on the number of ballots they may notarize.
The Witness Requirement 54. The exception carved out for physically incapacitated voters and those who are caregivers for physically incapacitated voters is equally problematic. 55. To utilize this exception, voters must have their signatures witnessed by two other people, who must also sign the voter’s affidavit and provide their addresses. Id. § 14-113.2(A). 56. Voters who use the witness exception for physically incapacitated voters and their caretakers must return their ballots by mail—in person delivery is not permitted. Id. §§ 14-108(A), 14-113.2(A). 57. In enacting SB 210, the Oklahoma Legislature amended the definition of what constitutes being “physically incapacitated” for these purposes to include a narrow sliver of Oklahomans affected by COVID-19. 58. Specifically, if “a State of Emergency declared by the Governor related to the COVID-19 pandemic is in effect forty-five days prior to a scheduled election, or is declared within forty-five days of the election,” “physically incapacitated” voters may also include the following narrow categories of voters: (1) those who have tested positive for COVID-19 and are receiving treatment or subject to quarantine under doctor’s or health department orders; (2) people tested for COVID-19 awaiting results; (3) people exhibiting symptoms of COVID-19 who have been advised by the voter’s personal physician or the county health department to quarantine or self-isolate; (4) people in “group[s] considered at ‘higher risk of severe illness’ due to age or underlying health conditions as defined by the CDC, and as such are subject to a ‘stay at home’ or ‘safer at home’ or similar order by the Governor or by an authorized municipal authority; or” (5) voters with a
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“written recommendation from the voter’s personal physician that due to an underlying health condition the voter should not leave his or her home due to the COVID-19 pandemic.” Enr. S.B. 210, § 3(C) (emphasis added).
59. The written recommendations from public health officials telling all people to stay at home and at least six feet away from other people due to the risk of transmission via asymptomatic carriers do not qualify for the revised definition of “physically incapacitated,” as enacted by the Legislature in SB 210.
60. A substantial number of physically incapacitated voters will have to leave their homes and break quarantine—or invite additional persons into their homes despite their selfisolation—to obtain the two witnesses required to satisfy this requirement.
61. More than 416,000 people in Oklahoma live in households with fewer than three adults. Those voters cannot rely on members of their household to serve as witnesses and have no choice but to venture outside of their safe spaces, or invite others in.
62. And these voters must interact with not just one but two other people, and touch common objects, in the process risking exposure to COVID-19, in order to be able to exercise their right to vote.
63. Those newly designated as “physically incapacitated” by SB 210—i.e., those voters who have or are suspected by medical personnel to have an active case of COVID-19—will almost certainly fail to find two witnesses willing to risk exposure to the virus in order to assist the person in voting.
64. The Witness Requirement also imposes a particular burden on physically incapacitated voters in long-term care facilities and retirement homes.
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65. In the current pandemic, visitors are broadly prohibited “from entering and visiting patients and residents at nursing homes, long-term care facilities, and retirement homes” except in end-of-life situations.6
66. The new law, SB 210, requires “a designated official” at nursing homes and veterans’ centers to serve as a witness for ballot affidavits. Enr. S.B. 210, § 3(B). It is not clear if, by requiring this designation, the Legislature intended to permit residents of nursing homes and veterans’ centers to comply with the Witness Requirement by obtaining only one witness signature, not the two otherwise required.
67. That said, facilities like nursing homes, long-term care facilities, and retirement homes, have had some of the highest concentrated death tolls in the pandemic. Thus, requiring a single individual to serve as the witness for every voter’s absentee ballot in such a facility, a process that requires the witness and voter to be in close proximity and handle the same document, creates an unnecessary, heightened risk in the heart of Oklahoma’s most vulnerable facilities.
68. SB 210 has no carveout for other long-term care facilities or retirement homes. Thus, physically incapacitated voters at those locations still must find two other residents or staffers willing to violate social distancing measures and handle the voters’ ballots in order to exercise their right to vote.
69. Neither the Notarization nor the Witness Requirement serves any state interest that can justify the burdens they impose on voters, particularly in the midst of this unprecedented health crisis.
6 See Exec. Dep’t Fourth Am. Exec. Order 2020-13, supra note 2.
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70. Oklahoma is one of only five states that require absentee voters to obtain notarization or the signatures of two witnesses.7 There is no evidence that the states without such requirements suffer from increased voter fraud. Indeed, voter fraud is extremely rare in Oklahoma and elsewhere.
The Photo ID Requirement 71. Far from alleviating the burdens imposed on voters by the Notarization or Witness Requirements, the Photo ID Requirement imposes its own equally unjustifiable burdens on and hurdles to Oklahomans’ successful exercise of the right to vote. 72. The Photo ID Requirement requires voters to submit either a photocopy of “a voter identification card issued by the appropriate county election board” or a government-issued document that has their name, photograph, and an expiration date after the election. Enr. S.B. 210; Okla. Stat. tit. 26, §§ 14-108(A), 14-113.2(A). Voters must return their ballots in person or by mail. Id. 73. To comply with the Photo ID Requirement, a voter must have access to a scanner and printer, which many voters do not have at home. 74. As with most of the requirements, the burden falls heaviest on low-income and elderly voters, as well as students, many of whom do not own printers and scanners. 75. A State Department of Education survey found that “roughly one in three students” in Oklahoma does not even have a computer at home. 76. Almost 21 percent of Americans over 65 live in a household without a computer.
7 North Carolina, Rhode Island, Mississippi, and Missouri are the others. See Ala. Code §§ 17-9-30(b), 17-11-7, 17-11-10; Alaska Stat. § 15.20.030; La. Stat. § 18:1306(2)(a); Minn. Stat. § 203B.07; Miss. Code §§ 23-15-627, 23-15-635, 23-15-633; Mo. Rev. Stat. §§ 115.279, 115.283, 115.295; N.C.G.S. § 163-231; Okla. Stat. tit. 26, §§ 14-108, 14-113.2(A); 17 R.I. Gen. Laws § 17-20-23; S.C. Code §§ 7-15-220, 7-15-230; Va. Code §§ 24.2-706, 24.2- 707; Wis. Stat. § 6.87(4)(b)1; see also Voting Outside the Polling Place: Absentee, All-Mail and other Voting at Home Options, NCSL, https://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx.
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77. Countless voters who desire to use the Photo ID Requirement will thus have to leave their homes and risk being exposed to COVID-19 in order to do so.
78. If the voter finds a scanner and/or photocopy machine at a business that is open during this time, they may very well have to pay a fee to utilize it. And, of course, in utilizing that machinery, they are likely to not only have to interact with other people, but also to touch surfaces that have been recently touched by other people, needlessly risking exposure to the virus.
79. That the Notarization, Witness, and Photo ID Requirements are not necessary to ensure the integrity of Oklahoma’s elections (or serve any other legitimate government purpose) is demonstrated by the fact that Oklahoma does not impose any of these restrictions on uniformed-service or overseas voters who vote absentee. See Uniform Military and Overseas Voters Act, Okla. Stat. tit. 26, § 14-136, et seq. Those voters need only sign the ballot affidavit and acknowledge that “a material misstatement of fact . . . may be grounds for a conviction of perjury.” See id. § 14-148.
80. Similarly, no notarization, witness signatures, or photocopy of photo identification is required for emergency incapacitated voters—“voters who become[ ] incapacitated after 5:00 p.m. on [the] Tuesday preceding an election”—who return their absentee ballots by mail. Id. § 14-115.1.
81. Multiple other Oklahoma laws ably and adequately deter and punish voter fraud, rendering the Notarization, Witness, and Photo ID Requirements unnecessary.
82. Voters who (1) “knowingly execute[ ] a false application for an absentee ballot[,]” id. § 16-102.2; (2) “knowingly swear[ ] or affirm[ ] a false affidavit[,]” id. § 16-103; or (3) “knowingly vote and submit[ . . .] absentee ballot[s] issued to another person” and who
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“knowingly conspire[ ] to commit fraud or perpetrate[ ] fraud[,]” id. §§ 16-102, 16-105, are guilty of a felony.
83. And voters who “interfere[ ] with a registered voter who is attempting to vote” or “with the orderly and lawful conduct of an election” or who “attempt[ ] to influence the vote of another by means of force or intimidation” are guilty of a misdemeanor. Id. § 16-113. C. The Postage Requirement will require Oklahoma voters to pay to vote safely and
cannot be justified by sufficiently weighty state interests. 84. Because Oklahoma does not provide prepaid postage on its absentee ballots, voters who mail in their absentee ballot must incur and bear a monetary burden in order for their vote to be counted. 85. The Postage Requirement also presents several practical problems that will prove insurmountable for some voters, particularly in the context of the current pandemic. 86. The severity of the burdens imposed by the Postage Requirement are significantly exacerbated under the present circumstances, when many Oklahomans are experiencing significant financial struggles due to the economic impact of COVID-19. 87. Many people do not keep stamps at home. The volume of mail sent thorough the U.S. Postal Service (“USPS”) has declined 43 percent since 2001. Many now pay their bills and otherwise conduct their communications online, and the result has been that stamps are no longer a household staple. 88. Before the pandemic, a voter with access to reliable transportation could go to the post office to buy a single stamp; today, when many voters who request an absentee ballot will be doing so because they have underlying conditions that put them at higher risk for severe complications from COVID-19, doing so could pose an equally severe threat to their health.
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89. While there are some services that allow voters to print postage online, these services also require a printer, scale, and paid subscription.
90. A voter can order stamps online on the USPS website, however, they take five to seven days to be delivered under normal circumstances, are not sold individually, must be purchased on a sheet of stamps that costs a minimum of $11.00, and require the purchaser to pay for shipping and handling of the stamps themselves.
91. It is also not always clear how much postage a voter may need in order to return his or her ballot. Depending on the number of races at issue in a given jurisdiction, it may require more than one First-Class stamp to cover the return postage.
92. While these financial costs may seem trivial to some, the cumulative number of Oklahomans filing unemployment claims topped 500,000 as of May 30, 2020. The number of firsttime jobless claims for unemployment insurance benefits remains 16 times higher than preCOVID-19 numbers.
93. The reality isthat many Oklahomans are counting every penny, and this additional burden, together with legitimate concerns about exposing themselves to the virus, is highly likely to cause widespread and unjustifiable disenfranchisement.
94. For voters who do not receive their ballots in the mail until close to Election Day— a problem that thousands of Wisconsin voters encountered in the recent primary election there— the cost to overnight or expedite their ballot to ensure that it arrives by 7:00 p.m. on Election Day will, as discussed below, impose further burdens on their right to vote.
95. All of these burdens will fall disproportionately on the socioeconomically disadvantaged, many of whom are constituents of DCCC and the Oklahoma Democratic Party.
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96. Lower income and younger voters are less likely to have a stamp on hand. Although people can buy stamps online, many voters do not have internet access, a credit card, and a printer.
97. Even if voters have the means to purchase stamps, many voters will have to leave their homes in order to obtain them⸺a dangerous proposition during the COVID-19 crisis.
98. The trip to a post office or other establishment that sells stamps is even more dangerous for those who lack vehicles and must rely on public transportation. Some rural voters in Oklahoma do not have viable public transportation options.
99. There is evidence that postage costs broadly burden voters and that voter turnout dramatically increases when voters do not have to pay for postage. During the 2017 and 2018 primary elections in King County, Washington, thousands of voters received envelopes with postage prepaid. Those pilot programs resulted in a double-digit increase in the percentage of voter turnout in at least one town. In May 2018, Washington State started funding prepaid absentee ballots in the remaining counties.
100. Oklahoma recognizes that postage is a burden on voters. That is why Oklahoma citizens living overseas and military personnel abroad need not pay for postage to mail their completed absentee ballots.8 “Any American voter living overseas can mail his or her completed ballot back to the United States free of charge at the nearest American embassy, consulate, or Diplomatic Post Office (DPO). If the voter has authorized access to a military base, he or she can mail a ballot free of charge at the nearest Army Post Office (APO) or Fleet Post Office (FPO).”9
101. The State’s only conceivable interest in the Postage Requirement is budgetary, which cannot outweigh the burden on the right to vote.
8 See Election Mail, U.S. Postal Serv., https://about.usps.com/postal-bulletin/2020/pb22539/html/cover_006.htm. 9 Id. (emphasis added).
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102. Governments, including Oklahoma’s, already provide postage to enable citizens to readily complete other government forms. For instance, the U.S. Census Bureau sends surveys with postage-prepaid return envelopes. And, in compliance with the National Voter Registration Act, Oklahoma mails postage-prepaid voter registration cards for selected voters to confirm their address.
103. For all of these reasons, the Postage Requirement is unconstitutional because voters must pay to vote safely and, at the very least, it imposes an unnecessary cost on the fundamental right to vote. D. The Election Day Receipt Deadline will result in large-scale disenfranchisement that
cannot be justified by sufficiently weighty state interests. 104. Voters can request an absentee ballot up until 5:00 p.m. on the Tuesday before the election,10 Okla. Stat. tit. 26, § 14-103, but Oklahoma rejects absentee ballots unless they are received by the secretary of each county election board by 7:00 p.m. on Election Day, regardless of when the voter first received the ballot from elections officials, when the voter actually mailed it back, or when the ballot was postmarked, id. § 14-104; Okla. Admin. Code § 230:30-11-5(a). 105. Thus, even where voters overcome the multiple obstacles already discussed that operate to hinder their ability to complete and return their ballots, the Election Day Receipt Deadline threatens to disenfranchise them. 106. Even before the current pandemic, in the past four years, nearly 3,000 absentee ballots were rejected in Oklahoma because of the Election Day Receipt Deadline. 107. In many cases, the Election Day Receipt Deadline threatens to disenfranchise voters for circumstances entirely beyond their control.
10 Prior to May 21, 2020, voters could request an absentee ballot up until 5:00 p.m. on the Wednesday before the election. On May 21, 2020, the Governor signed SB 1779, restricting the amount of time voters now have to vote absentee.
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108. As a result of the anticipated deluge of absentee ballot requests and returns, understaffed clerk’s offices, and the USPS’s current budget crisis—as well as reductions in available staff, resulting from the current pandemic—which has rendered mail service increasingly slow and unpredictable, Oklahomans might receive their absentee ballots too late to return them before 7:00 p.m. on Election Day, even if they turn the ballots around immediately.
109. Exacerbating the problem is the lack of clear and consistent guidance to voters from Oklahoma elections officials about when to mail their absentee ballots.
110. The U.S. Election Assistance Commission recommends voters “assume one week for USPS delivery” of their ballots to election officials under normal circumstances, and that elections officials “consistently communicate[ this message] to voters who use absentee ballots.11
111. And a study of USPS delivery of absentee ballots recommends that voters place “their ballots in the mail five days prior to Election Day for states” with an Election Day receipt deadline.12
112. There is no notice of these or any time frames on Oklahoma’s State Board or county election board websites, so voters are left to make their own guess as to when they must mail their ballot in order to have a reasonable chance of it reaching the county secretary’s office by the Election Day Receipt Deadline.

11 2018 Election Cycle Preparation: Tips for State and Local Election Officials, U.S. Election Assistance Comm’n

Standards

Bd.

-

USPS

Comm.,

https://www.eac.gov/sites/default/files/eac_assets/1/6/2018_election_prep_vote_by_mail_one.pdf; see also Voting by

Mail/Absentee

Voting,

U.S.

Election

Assistance

Comm’n,

https://www.eac.gov/election-officials/voting-by-mail-absentee-voting.

12 Bipartisan Policy Ctr., The New Realities of Voting by Mail in 2016, at 8, available at

https://bipartisanpolicy.org/wp-content/uploads/2019/03/BPC-Voting-By-Mail.pdf.

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113. The Election Day Receipt Deadline will threaten more voters with disenfranchisement than ever before in the coming election, when many voters who opt to cast their ballots by mail will be doing so for the first time.
114. These first-time absentee voters are less likely to be familiar with the Election Day Receipt Deadline, especially when many other mail deadlines in Oklahomans’ lives are postmark-related.13
115. Voters who have historically cast their ballots on Election Day at the polls are also accustomed to having until Election Day to decide for whom to vote. By effectively requiring these voters to cast their absentee ballots a full week or more before Election Day for those ballots to be counted, the Election Day Receipt Deadline forces Oklahoma voters to forego information about the election and the candidates that may arise in the final week leading up to Election Day that could influence their decision. The Election Day Receipt Deadline thus deprives voters of the ability to engage in this robust period of civic engagement.
116. As noted above, the pandemic will only make the risk of disenfranchisement posed by the Election Day Deadline more severe and substantially more likely to impact a significantly larger number of voters than in the past. As in other states that have held elections since the pandemic began, county election boards⸺likely understaffed or working remotely due to the pandemic and related government orders⸺will be delayed in turning around absentee ballot requests. And strain on the USPS will compound that delay. Voters in other states have recently reported significant mail delays. As discussed above, the USPS is struggling financially, and operations have slowed due to the pandemic.
13 See, e.g., Okla. Stat. tit. 68, § 221.1(A) (applying postmark deadline to tax returns and payments).
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117. In Wisconsin’s April election, for example, thousands of voters had not received their timely requested absentee ballots by that state’s Election Day receipt deadline.
118. In litigation brought in part to protect voters from disenfranchisement as a result of that deadline, the U.S. Supreme Court affirmed an extension of the Election Day receipt deadline in Wisconsin, acknowledging that the State’s interest in enforcing the deadline during the pandemic was far outweighed by the voters who would otherwise be disenfranchised if ballots postmarked by Election Day were not counted. See RNC v. DNC, 140 S. Ct. 1205, 1208 (2020) (per curiam).
119. As a result, almost 80,000 Wisconsinites had their absentee ballots counted instead of rejected as too late.14 Absent this extension, those voters would have had to choose between risking their lives and not voting.
120. Extending the Election Day Receipt Deadline also would not harm the State’s interest in the orderly administration of elections in Oklahoma.
121. Counting ballots continues after Election Day under normal circumstances. County election boards do not certify results for county offices until 5:00 pm on the Friday after Election Day, and the State Board does not certify results for state officers until after 5:00 p.m. a week after Election Day. Okla. Stat. tit. 26, § 7-136. Nor does state law mandate a particular time for public release of election results; it requires only that the results of the absentee ballots shall not be announced “earlier than 7:00 p.m. on election day.” Id. § 8-115.
14 Wis. Elections Comm’n, April 7, 2020 Absentee Voting Report (May 15, 2020), https://elections.wi.gov/sites/elections.wi.gov/files/2020-05/April%202020%20Absentee%20Voting%20Report.pdf.
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E. The Ballot Request Criminalization, Absentee Assistance Ban, and Absentee Assistance Criminalization prohibit Plaintiffs and other organizations from rendering necessary aid to absentee voters during this global pandemic and cannot be justified by sufficiently weighty state interests. 122. Oklahoma’s Ballot Request Criminalization makes it a felony for Plaintiffs to
request, or work with others to request, 10 or more absentee ballots for eligible voters who need assistance to vote by mail, and a misdemeanor to request, or work with others to request, fewer than 10 absentee ballots, except in the case of a physically incapacitated or emergency incapacitated voter, whose “assistant or agent” may request one on their behalf. Exceptions also exist for an absentee voting board member who assists a voter confined to a nursing home or veterans center, or an election official taking official action authorized by law. See Enr. S.B. 1779, §§ 1(A)(1)–(4), (B)(1), 12, 14.
123. The Ballot Request Criminalization became law on May 21, 2020, just nine days after the Governor signed SB 210 and a little over a month before the June 30 election.
124. The Ballot Request Criminalization imposes an additional sweeping restriction on voters in the “vulnerable population” Governor Stitt has endeavored to protect during the global pandemic. For example, elderly voters and immunocompromised voters have a greater need to vote absentee because of the disproportionate rate at which elderly voters and those with underlying health conditions have contracted COVID-19 and suffered fatal complications. These voters are also more likely to need assistance requesting an absentee ballot due to a lack of access to the internet and understanding of how to request an absentee ballot, unfamiliarity with technology, and reduced mobility.
125. In addition, the Ballot Request Criminalization takes aim at lawful, constitutionally-protected activities, like grassroots organizing and absentee voting drives, which play a crucial role in facilitating access to the franchise, thereby burdening organizations like
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Plaintiffs who engage in GOTV efforts to ensure all eligible voters receive the assistance they need to vote.
126. The Ballot Request Criminalization does not serve any valid state interest. There is nothing inherently fraudulent about requesting an absentee ballot application for someone else. Fraud arises when someone knowingly executes a false application for an absentee ballot or fills out that absentee ballot for another voter. Oklahoma law already prohibits those types of fraud. See supra ¶¶ 81–83. As a result, the Ballot Request Criminalization is overly restrictive and unnecessary. Id. At the very least, any service of the State’s interest in preventing fraud is outweighed by the severe burden imposed on voters and Plaintiffs serving them.
127. Oklahoma’s Absentee Assistance Ban prevents anyone but the voter from mailing or returning his or her absentee ballot. See Okla. Stat. tit. 26, §§ 14-108(A), 14-120; Okla. Admin. Code § 230:30-11-1.1(a).
128. On top of those prohibitions, as of May 21, 2020, the Absentee Assistance Criminalization now makes it a felony for anyone to return or work with others to return 10 or more sealed and voted absentee ballots on behalf of voters who require assistance for their ballots to be counted, and a misdemeanor to return or work with others to return fewer than 10 sealed and voted absentee ballots, with a few narrow exceptions. Enr. S.B. 1779, §§ 1(A)(2), B(1), (5), 12, 14.
129. During a time when the mail is unreliable and people are rightfully afraid to leave their houses and come into contact with others, the Absentee Assistance Ban and Absentee Assistance Criminalization impose unjustifiable burdens on the right to vote.
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130. As discussed above, the methods by which the novel coronavirus is transmitted make voting in person a risky proposition, even for younger voters with no known pre-existing conditions.
131. Even under more normal circumstances, the Absentee Assistance Ban and Absentee Assistance Criminalization can impose a severe burden on the right to vote that falls disproportionately on low-income, minority, and rural voters who generally have less access to postal service, live in areas lacking reliable access to public transportation and broadband internet, and live farther away from their county election board’s office (typically located in a city center), as well as voters who receive their ballots too late to be sure that they will be delivered to elections officials in time to be counted.
132. Indeed, the Ninth Circuit recently struck down a statute criminalizing the collection and delivery of another’s ballot because it disproportionately burdened minority voters. DNC v. Hobbs, 948 F.3d 989, 1033 (9th Cir. 2020) (en banc).
133. In the context of the current pandemic, the burdens imposed on the right to vote by the Absentee Assistance Ban and Absentee Assistance Criminalization are both more severe and more likely to detrimentally impact a substantially larger number of voters. Simply put, they prohibit an absolutely crucial means of ensuring that voters are able to safely and successfully cast an absentee ballot.
134. But for the Absentee Assistance Ban and Absentee Assistance Criminalization, DCCC and the Oklahoma Democratic Party could and would ensure that absentee voting is safe and reliable for many voters by collecting and timely returning voters’ absentee ballots.
135. The Absentee Assistance Ban and Criminalization’s burden on voters and the organizations serving them far outweighs any state interest in their enforcement.
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136. The State has no inherent interest in who returns a ballot. (Indeed, the State probably cannot tell who dropped a particular ballot in the mail.)
137. The Absentee Assistance Ban and Absentee Assistance Criminalization are useful only to the extent that preventing someone other than the voter from returning the ballot also prevents that other person from filling out the ballot. But Oklahoma’s other laws making it a felony to vote another person’s ballot or interfere “with the orderly and lawful conduct of an election” are better tailored to the goal of preventing voter fraud. Okla. Stat. tit. 26, §§ 16-102, 16-113; see supra ¶¶ 81–83. And, as mentioned above, voter fraud is virtually nonexistent in the State. Further, the State already allows some third parties to return voters’ ballots in certain circumstances. There is no meaningful difference between Plaintiffs returning sealed and voted absentee ballots with the voter’s consent and a voter’s spouse, for example, doing the same. See Enr. S.B. 1779, § 1(B)(5).
138. It is now more critical than ever that organizations like DCCC and the Oklahoma Democratic Party be allowed to help voters safely express themselves at the ballot box.
139. Absent the Ban and Absentee Assistance Criminalization, DCCC would focus on ensuring low-income communities, including voters living in public housing and high-stress communities, that tend to have fewer polling locations and difficulty staffing these locations, can cast their ballots.
140. Similarly, the Oklahoma Democratic Party would collect the sealed and voted absentee ballots at the voter’s request, particularly concentrating on elderly voters at retirement homes and assisting living facilities to enable those with limited mobility and who lack ready access to postage to return their completed ballot.
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CAUSES OF ACTION COUNT I
First and Fourteenth Amendments U.S. Const. amends. I and XIV, 42 U.S.C. § 1983, 28 U.S.C. §§ 2201–2202
Undue Burden on the Right to Vote (All Challenged Provisions)
141. Plaintiffs reallege and incorporate by reference all prior paragraphs of this Amended Complaint and the paragraphs in the counts below as though fully set forth herein.
142. Under the Anderson-Burdick balancing test, a court considering a challenge to a state election law must carefully balance the character and magnitude of injury to the First and Fourteenth Amendment rights that the plaintiff seeks to vindicate against “‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’” Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)).
143. “However slight th[e] burden [on the right to vote] may appear, . . . it must be justified by relevant and legitimate state interests sufficiently weighty to justify the limitation.” Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 191 (2008) (Stevens, J., controlling op.) (quotation marks omitted); see also Fish v. Schwab, 957 F.3d 1105, 1124 (10th Cir. 2020).
144. A state may not justify practices that impinge upon fundamental rights by citing concerns about “administrative convenience.” See Taylor v. Louisiana, 419 U.S. 522, 535 (1975).
145. Unless Plaintiffs are granted the relief requested herein, thousands of Oklahoma voters, including Plaintiffs’ members and constituents, will suffer severe burdens on their right to vote as a result of the Challenged Provisions in the upcoming elections, some to the point of complete disenfranchisement.
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146. For the reasons discussed, the Notarization, Witness, and Photo ID Requirements raise constitutional concerns in any context, but in the current unprecedented public health crisis, they force voters to violate social distancing measures and interact with other people and touch common objects—all actions that could expose them to COVID-19—and the burdens they impose cannot be justified by any sufficiently weighty state interest.
147. Voter fraud is extremely rare in Oklahoma and in other states without such severe burdens on the absentee voting process. And the State’s interest in maintaining the integrity of its elections is sufficiently served by a voter’s affidavit sworn under penalty of perjury, as the Oklahoma Supreme Court decided, combined with the threat of prosecution under Oklahoma’s voter fraud laws for casting another’s ballot. League of Women Voters, 2020 OK 26, 2020 WL 2111348.
148. For the reasons discussed, Oklahoma’s Postage Requirement also imposes an undue burden on the method of voting that is indisputably the safest during these unprecedented times. Its burdens, moreover, fall more severely on low-income voters, who already bear the brunt of the ongoing public health emergency. No voter should be forced to leave his or her home in the middle of a pandemic in search of a stamp in order to exercise his or her most fundamental right. The only plausible state interest justifying the Requirement is a lack of administrative resources. But that concern cannot outweigh the heavy burden that it imposes on voters.
149. The Election Day Receipt Deadline similarly imposes a severe burden on the fundamental right to vote, especially during the COVID-19 crisis. Even before the pandemic began, the Election Day Receipt Deadline disenfranchised thousands of Oklahomans. Now, it threatens to disenfranchise thousands more. The State cannot offer an interest substantially weighty enough to overcome the burdens imposed on voters’ fundamental rights.
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150. By imposing barriers to requesting an absentee ballot, the Ballot Request Criminalization reduces access to vote-by-mail opportunities upon which voters and prospective voters, including Plaintiffs’ constituents, rely. Many voters, if permitted, would take advantage of Plaintiffs’ efforts to request absentee ballots. The new law places a severe burden on the fundamental right to vote and the freedoms of speech and of assembly that cannot be justified by any state interest, especially to the extent any interest is aimed at curtailing access to absentee voting, thus violating the U.S. Constitution.
151. Finally, the Absentee Assistance Ban and Absentee Assistance Criminalization unduly burden the right to vote because they cannot be justified by state interests under any circumstances, but in the current circumstances in particular, they deny Oklahoma voters the safest and most effective option to return their absentee ballots. The State’s interest is in ensuring that the voter lawfully marks his or her own ballot, not in preventing others from assisting the lawful voter in returning that sealed and voted ballot. Oklahoma has many laws tailored to this specific interest, including making it a felony to fill out another’s ballot, influence the vote of another, and/or interfere with the conduct of any election. There is thus no justifiable basis for the burdens that the Ban and Criminalization impose under any circumstances, but this is doubly so during the ongoing health crisis.
152. Because the Challenged Provisions do not sufficiently support a state interest to justify the resulting burdens on the right to vote, they violate the First and Fourteenth Amendments.
COUNT II Poll Tax
U.S. Const. amend. XXIV, 42 U.S.C. § 1983 Imposition of a Poll Tax (Postage Requirement)
153. Plaintiffs reallege and incorporate by reference all prior paragraphs of this Amended Complaint and the paragraphs in the counts below as though fully set forth herein.
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154. The Twenty-Fourth Amendment to the U.S. Constitution provides: “The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.” U.S. Const. amend XXIV, § 1. Voters must not have to pay “a price for the privilege of exercising the franchise.” Harman v. Forssenius, 380 U.S. 528, 539 (1965).
155. Oklahoma’s requirement that voters pay for postage in order to vote absentee imposes an unconstitutional poll tax in violation of the Twenty-Fourth Amendment. Voting absentee is the only option that allows voters to stay safely in their homes during the COVID-19 crisis.
156. For the reasons stated above, Defendants have deprived and will continue to deprive Plaintiffs and their members and constituents of their right to vote in federal elections, granted to them by the Twenty-Fourth Amendment to the U.S. Constitution and protected by 42 U.S.C. § 1983.
COUNT III Due Process U.S. Const. amend. XIV, 42 U.S.C. § 1983 Denial of Procedural Due Process (Election Day Receipt Deadline) 157. Plaintiffs reallege and incorporate by reference all prior paragraphs of this Amended Complaint and the paragraphs in the counts below as though fully set forth herein. 158. The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution prohibits the states from depriving “any person of . . . liberty . . . without due process of law.” U.S. Const. amend. XIV, § 1. Which protections are due in a given case requires a careful analysis of the importance of the rights and the other interests at stake. See Mathews v. Eldridge, 424 U.S. 319, 334–35 (1976).
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159. Courts must first consider the nature of the interest that will be affected by the government’s actions as well as the “degree of potential deprivation that may be created” by existing procedures. Id. at 341. Second, courts consider the “fairness and reliability” of the existing procedures “and the probable value, if any, of additional procedural safeguards.” Id. at 343. Finally, courts consider the public interest, which “includes the administrative burden and other societal costs that would be associated with” additional or substitute safeguards. Id. at 347 “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Id. at 334 (quotation and citation omitted).
160. Oklahoma’s absentee voting system must comport with due process. See Raetzel v. Parks/Bellemont Absentee Election Bd., 762 F. Supp. 1354, 1358 (D. Ariz. 1990). “Such due process is not provided when the election procedures [for voting absentee]” do not adequately protect the right to vote or ensure that an “individual is not continually and repeatedly denied so fundamental a right.” Id.; see also Saucedo v. Gardner, 335 F. Supp. 3d 202, 217 (D.N.H. 2018) (“Having induced voters to vote by absentee ballot, the State must provide adequate process to ensure that voters’ ballots are fairly considered and, if eligible, counted.”).
161. The nature of the interest at stake in this case⸺the right to vote and to have that vote count⸺is the most precious liberty interest of all because it is tied to all other basic civil and political rights.
162. Oklahoma’s existing absentee voting procedures too often disenfranchise voters because (1) many voters do not learn of the Election Day Receipt Deadline before Election Day, and (2) even voters who do learn of the Election Day Receipt Deadline may not have their ballots counted, through no fault of their own, if they do not arrive at their county election board’s office by 7:00 p.m. on Election Day.
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163. Oklahoma’s Election Day Receipt Deadline is neither a reliable nor fair way to administer voting absentee. The Election Day Receipt Deadline and the corresponding cutoff for casting ballots is unreliable because many voters are not even sent their absentee ballots until after the mailing cutoff, leaving them with no safe mail alternative for their votes to be counted. Nor is the Election Day Receipt Deadline fair because it forces those voters to cast their ballots with incomplete information and before candidates have delivered their final messages to voters.
164. The value of additional or substitute procedural safeguards to ensure that the absentee ballots of Oklahoma voters are both meaningfully cast and actually counted is readily apparent. A substitute procedure⸺requiring absentee ballots to be postmarked on or before Election Day and received by the county within seven days after Election Day to be counted, and moving the county and state certification dates by a week⸺resolves the inequities inherent in Oklahoma’s Election Day Receipt Deadline.
165. A postmark date not only offers a reliable date to Oklahoma voters by which they must cast their ballots, but it also ensures that voters who receive their ballots late, through no fault of their own, are still able to engage in the franchise. A postmark date additionally ensures that all of Oklahoma’s voters can consider any information that may arise and influence their choices in the final week of the election.
166. Having introduced the option to vote absentee, Oklahoma must establish adequate procedures to ensure that voters have a reliable, fair, and effective method to cast their ballots. Because Oklahoma’s Election Day Receipt Deadline is inadequate, and the State is readily capable of instituting a substitute procedure which would protect those voters’ rights with minimal burden to the State, Oklahoma’s Election Day Receipt Deadline violates voters’ procedural due process rights.
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COUNT IV Free Speech and Association U.S. Const. amends. I and XIV, 42 U.S.C. § 1983 Violation of Free Speech and Associational Rights (Ballot Request Criminalization, Absentee Assistance Ban, and Absentee Assistance
Criminalization) 167. Plaintiffs reallege and incorporate by reference all prior paragraphs of this Amended Complaint and the paragraphs in the counts below as though fully set forth herein. 168. The First Amendment protects against the passage and enforcement of laws “prohibiting the free exercise [of] or abridg[ment] of freedom of speech.” U.S. Const. amend. I. The Fourteenth Amendment protects First Amendment rights “from impairment by the States.” Gitlow v. New York, 268 U.S. 652, 666 (1925). 169. The Supreme Court has applied “exacting scrutiny” to review laws governing election-related speech. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 345 (1995); see also League of Women Voters v. Hargett, 400 F. Supp. 3d 706, 722 (M.D. Tenn. 2019) (“[L]aws that govern the political process surrounding elections—and, in particular, election-related speech and association—go beyond merely the intersection between voting rights and election administration, veering instead into the area where ‘the First Amendment has its fullest and most urgent application.’”) (quoting Eu v. S.F. Cty. Democratic Cent. Comm., 489 U.S. 214, 223 (1989)). 170. Restrictions on such speech are unconstitutional when they “significantly inhibit” election-related speech and association and are “not warranted by the state interests . . . alleged to justify [the] restrictions.” Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 192 (1999). 171. Voter turnout efforts, including assisting voters in requesting and returning their sealed and voted ballots, are important ways in which DCCC and the Oklahoma Democratic Party communicate their belief in the power and importance of participating in democratic elections.
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172. Such activities are “the type of interactive communication concerning political change that is appropriately described as ‘core political speech.’” Meyer v. Grant, 486 U.S. 414, 422-23 (1988); cf. League of Women Voters, 400 F. Supp. 3d at 720 (“Encouraging others to register to vote is pure speech, and, because that speech is political in nature, it is a core First Amendment activity.” (quotation marks and alterations omitted)).
173. The acts of assisting voters by requesting absentee ballots to permit them to vote and delivering completed ballots to ensure they are counted are inherently expressive, and an individual or organization that conducts such activities engages in speech by encouraging voting. See Bernbeck v. Moore, 126 F.3d 1114, 1115 (8th Cir. 1997) (rejecting argument that regulating an election “process” raises no First Amendment concerns).
174. These initiatives also facilitate the political participation of voters who have experienced historically low turnout rates when compared to the rest of the population, or who for various reasons, including disability, advanced age, or lack of access to transportation, would have difficulty voting.
175. This is why DCCC’s and the Oklahoma Democratic Party’s ability to request absentee ballots and collect and deliver sealed and voted ballots would significantly further their missions to serve underrepresented populations as well as their members’ and constituents’ access to the ballot box.
176. Furthermore, First Amendment rights “include the right to band together for the advancement of political beliefs.” Hadnott v. Amos, 394 U.S. 358, 364 (1969). “An organization’s attempt to broaden the base of public participation in and support for its activities is conduct ‘undeniably central to the exercise of the right of association.’” Am. Ass’n of People with
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Disabilities v. Herrera, 690 F. Supp. 2d 1183, 1202 (D.N.M. 2010) (citing Tashjian v. Republican Party of Conn., 479 U.S. 208, 214–15 (1986)).
177. The conversations and interactions between DCCC and the Oklahoma Democratic Party and their respective organizers and voters surrounding requests for and the submission of ballots are forms of protected political speech and association. See Williams v. Rhodes, 393 U.S. 23, 30 (1968) (describing “overlapping” rights “of individuals to associate for the advancement of political beliefs” and “of qualified voters . . . to cast their votes effectively”); Project Vote v. Blackwell, 455 F. Supp. 2d 694, 700–01 (N.D. Ohio 2006) (explaining “participation in voter registration implicates a number of both expressive and associational rights which . . . belong to— and may be invoked by—not just the voters seeking to register, but by third parties who encourage participation in the political process”).
178. Oklahoma’s Ballot Request Criminalization, Absentee Assistance Ban, and Absentee Assistance Criminalization violate that protection by “limit[ing] the number of voices who will convey [DCCC’s and the Oklahoma Democratic Party’s] message,” and “the size of the audience they can reach[,]” thereby burdening the speech and associational rights of DCCC and the Oklahoma Democratic Party and the voters they serve. Meyer, 486 U.S. at 422–23.
179. These burdens are severe because they would subject Plaintiffs and their constituents to criminal prosecution for protected political speech about ensuring all eligible voters are able to vote safely: “the most effective, fundamental, and [likely] economical avenue of political discourse[.]” Id. at 424.
180. Because multiple other laws prosecute and deter voter fraud and there is nothing fraudulent about requesting or returning an absentee ballot for another person, the Ballot Request
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Criminalization, Absentee Assistance Ban, and Absentee Assistance Criminalization are not
narrowly tailored to advance a compelling state interest.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court enter judgment in their favor
and against Defendants, and:
A. Declare that the Notarization, Witness, and Photo ID Requirements impose undue burdens on the right to vote in violation of the First and Fourteenth Amendments;
B. Preliminarily and permanently enjoin the Notarization, Witness, and Photo ID Requirements;
C. Enjoin Defendants and their respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them, from rejecting ballots for failure to comply with the Notarization, Witness, and Photo ID Requirements so long as the voter has signed his or her ballot affidavit, which shall be done under penalty of perjury;
D. Declare that the Postage Requirement violates the Twenty-Fourth Amendment as an unconstitutional poll tax;
E. Preliminarily and permanently enjoin Defendants, their respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them, from requiring that voters provide postage on their absentee ballots and further require that Oklahoma provide prepaid postage for the return of all absentee ballots;
F. Declare that the Election Day Receipt Deadline violates the Fourteenth Amendment’s Due Process Clause;
G. Preliminarily and permanently enjoin Defendants, their respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them, from rejecting ballots that are postmarked by Election Day and arrive at their respective county election board within seven days, and to interpret the term “postmark” to refer to any type of imprint applied by the USPS to indicate the location and date the USPS accepts custody of a piece of mail, including bar codes, circular stamps, or other tracking marks, and, where a ballot does not bear a postmark date, requiring the State to presume that the ballot was mailed on or before Election Day unless the preponderance of the evidence demonstrates it was mailed after Election Day;
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H. Enjoin the county certification deadline of the Friday after Election Day and the state certification deadline of the Tuesday after Election Day, and postpone each by a week;
I. Declare that the Ballot Request Criminalization violates the First and Fourteenth Amendments as an unreasonable restriction on speech and association;
J. Preliminarily and permanently enjoin Defendants, their respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them, from enforcing the Ballot Request Criminalization, thus allowing voters to designate any third party⸺whether paid or not⸺to assist in requesting absentee ballots for them;
K. Declare that the Absentee Assistance Ban violates the First and Fourteenth Amendments as an unreasonable restriction on speech and association;
L. Preliminarily and permanently enjoin Defendants, their respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them, from enforcing the Absentee Assistance Ban, thus allowing voters to designate any third party⸺whether paid or not⸺to assist in the collection and submission of their absentee ballots;
M. Declare that the Absentee Assistance Criminalization violates the First and Fourteenth Amendments as an unreasonable restriction on speech and association;
N. Preliminarily and permanently enjoin Defendants, their respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them, from enforcing the Absentee Assistance Criminalization, thus allowing voters to designate any third party⸺whether paid or not⸺to assist in the collection and submission of their absentee ballots;
O. Award Plaintiffs their costs, expenses, and reasonable attorneys’ fees pursuant to, inter alia, 42 U.S.C. § 1988 and other applicable laws; and
P. Grant Plaintiffs such other and further relief as the Court deems just and proper.
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DATED: June 11, 2020

s/ Frank W. Frasier Frank W. Frasier, OK# 17864 FRASIER, FRASIER & HICKMAN, LLP 1700 Southwest Boulevard Tulsa, OK 74107 Telephone: 918.584.4724 Facsimile: 918.583.5637 FFrasier@frasierlaw.com
Marc E. Elias John Devaney Ariel B. Glickman PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 800 Washington, DC 20005-3960 Telephone: 202.654.6200 Facsimile: 202.654.6211 MElias@perkinscoie.com JDevaney@perkinscoie.com AGlickman@perkinscoie.com
Charles G. Curtis, Jr. Sopen B. Shah Will M. Conley PERKINS COIE LLP 33 East Main Street, Suite 201 Madison, WI 53703-3095 Telephone: 608.663.7460 Facsimile: 608.663.7499 CCurtis@perkinscoie.com SShah@perkinscoie.com WConley@perkinscoie.com
Counsel for Plaintiff

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CERTIFICATE OF SERVICE

I hereby certify that on June 11, 2020, I electronically transmitted Amended Complaint for

Injunctive and Declaratory Relief to the Clerk of Court using the ECF System for filing and

transmittal of a Notice of Electronic Filing to counsel for Defendants. I hereby certify that on

June 11, 2020, I also served the same document by e-mail on counsel for Defendants, who has

agreed to service via e-mail:

Thomas R. Schneider Assistant Attorney General Oklahoma Office of Attorney General 313 N.E. 21st St. Oklahoma City, OK 73105 Telephone: 405.522.4413 Facsimile: 405.522.4536 Thomas.Schneider@oag.ok.gov
DATED: June 11, 2020

s/ Frank W. Frasier
Frank W. Frasier, OK# 17864 FRASIER, FRASIER & HICKMAN, LLP 1700 Southwest Boulevard Tulsa, OK 74107 Telephone: 918.584.4724 Facsimile: 918.583.5637 FFrasier@frasierlaw.com

 
 Case 4:20-cv-00211-JED-JFJ Document 31 Filed in USDC ND/OK on 07/10/20 Page 1 of 32

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

DCCC and OKLAHOMA DEMOCRATIC PARTY,
Plaintiffs, v. PAUL ZIRIAX, in his official capacity as SECRETARY OF THE OKLAHOMA STATE ELECTION BOARD; TOM MONTGOMERY, in his official capacity as CHAIRMAN OF THE OKLAHOMA STATE ELECTION BOARD; DR. TIM MAULDIN, in his official capacity as VICE CHAIRMAN OF THE OKLAHOMA STATE ELECTION BOARD; HEATHER MAHIEU CLINE, in her official capacity as a MEMBER OF THE OKLAHOMA STATE ELECTION BOARD; JERRY BUCHANAN, in his official capacity as an ALTERNATE MEMBER OF THE OKLAHOMA STATE ELECTION BOARD; and DEBI THOMPSON, in her official capacity as an ALTERNATE MEMBER OF THE OKLAHOMA STATE ELECTION BOARD,
Defendants.

Case No.: 20-CV-211-JED-JFJ

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO DISMISS IMPROPER PARTIES AND DISMISS OR TRANSFER VENUE

Case 4:20-cv-00211-JED-JFJ Document 31 Filed in USDC ND/OK on 07/10/20 Page 2 of 32
TABLE OF CONTENTS Page
INTRODUCTION ......................................................................................................... 1 ARGUMENT ................................................................................................................. 3
I. The Members of the Board are proper defendants in this case............. 3 A. Plaintiffs properly sued the Members of the Board under Ex parte Young.............................................................................. 3 B. Plaintiffs’ injuries are traceable to and redressable (at least in part) by Members of the Board. ...................................... 6
II. Venue is proper in the Northern District of Oklahoma......................... 9 A. Venue is proper in the Northern District based on residence. .................................................................................... 10 B. Venue is also proper because “substantial events material to” Plaintiffs’ claims occurred and will occur in the Northern District. ....................................................................... 13
III. Defendants have not met their burden to justify transfer under Section 1404........................................................................................... 19
CONCLUSION............................................................................................................ 21
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TABLE OF AUTHORITIES
Page(s) Cases Atherton v. Ward,
22 F. Supp. 2d 1265 (W.D. Okla. 1998) ................................................................... 7 Bates v. C & S Adjusters, Inc.,
980 F.2d 865, 868 (2d Cir. 1992) ............................................................................ 16 Bay Cty. Democratic Party v. Land,
340 F. Supp. 2d 802 (E.D. Mich. 2004) ................................................ 10, 11, 13, 14 Bronson v. Swensen,
500 F.3d 1099 (10th Cir. 2007) ................................................................................ 7 Bruni v. Hughs,
No. 5:20-CV-35, 2020 WL 3452229 (S.D. Tex. June 24, 2020) ............................. 15 Buffalo Teachers Fed’n, Inc. v. Helsby,
426 F. Supp. 828 (S.D.N.Y. 1976) .......................................................................... 10 Bush v. Vera,
517 U.S. 952 (1996) ................................................................................................ 14 Chamber of Commerce of U.S. v. Edmondson,
594 F.3d 742 (10th Cir. 2010) .................................................................................. 4 Chestnut v. Merrill,
No. 2:18-CV-00907-KOB, 2020 WL 1281236 (N.D. Ala. Mar. 17, 2020)........................................................................................................................ 15 Chevron Corp. v. Donziger, 974 F. Supp. 2d 362 (S.D.N.Y. 2014) ....................................................................... 7 Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509 (10th Cir. 1991) .............................................................................. 20 Cotham v. Garza, 905 F. Supp. 389 (S.D. Tex. 1995).......................................................................... 15 Emison v. Catalano, 951 F. Supp. 714 (E.D. Pa.1996) ............................................................................ 14
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TABLE OF AUTHORITIES (continued)

Page(s)

Employers Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153 (10th Cir. 2010) .......................................................................passim

Ex parte Young, 209 U.S. 123 (1908) .............................................................................................. 4, 5

Fla. Nursing Home Ass’n v. Page, 616 F.2d 1355 (5th Cir. 1980), rev’d on other grounds sub nom. Fla. Dep’t of Health & Rehab. Servs. v. Fla. Nursing Home Ass’n, 450 U.S. 147 (1981) ....................................................................................................... 10

Frank v. Walker, 768 F.3d 744 (7th Cir. 2014) .................................................................................. 15

Frank v. Walker, 819 F.3d 384 (7th Cir. 2016) .................................................................................. 15

Gentges v. Oklahoma State Election Board, 319 P.3d 674 (2014) .................................................................................................. 6

Goff v. Hackett Stone Co., No. 98–7137, 1999 WL 397409 (10th Cir. June 17, 1999) .............................. 16, 17

Greater Birmingham Ministries v. Merrill, 284 F. Supp. 3d 1253 (N.D. Ala. 2018) .................................................................. 15

Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353 (2d Cir. 2005) .................................................................................... 16

Hanson v. Bosley & Bratch, Inc., No. 17CV1489, 2018 WL 4491424 (D. Colo. Sept. 18, 2018)................................. 17

Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014) .................................................................... 4, 5, 6, 7

Leroy v. Great W. United Corp., 443 U.S. 173 (1979) ................................................................................................ 18

Lopez v. Abbott, 339 F. Supp. 3d 589 (S.D. Tex. 2018)..................................................................... 15

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TABLE OF AUTHORITIES (continued)

Page(s)

Lotes Co. v. Hon Hai Precision Indus. Co., 753 F.3d 395 (2d Cir. 2014) .................................................................................... 16

Luft v. Evers, Nos. 16-3003, 16-3052, 16-3083 & 16-3091, 2020 WL 3496860 (7th Cir. June 29, 2020) ................................................................................................. 14

McClure v. Manchin, 301 F. Supp. 2d 564 (N.D. W.Va. 2003) ................................................................. 14

Mitrano v. Hawes, 377 F.3d 402 (4th Cir. 2004) .................................................................................. 16

Nova Health Sys. v. Gandy, 416 F.3d 1149 (10th Cir. 2005) ................................................................................ 6

Okla. Chapter of Am. Acad. of Pediatrics (OKAAP) v. Fogarty, No. 01CV0187CVE-SAJ, 2006 WL 1623529 (N.D. Okla. June 6, 2006), subsequently rev’d and remanded sub nom. Okla. Chapter of Am. Acad. of Pediatrics v. Fogarty, 472 F.3d 1208 (10th Cir. 2007) .................... 12

Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818 (10th Cir. 2007) .............................................................................. 4, 5

Quorum Health Res., LLC v. Lexington Ins. Co., No. 11CV374, 2012 WL 769744 (D.N.M. Mar. 7, 2012) ........................................ 17

Reprod. Servs. v. Keating, 35 F. Supp. 2d 1332 (N.D. Okla. 1998) .................................................................. 13

Sch. Dist. of Phila. v. Pa. Milk Mktg. Bd., 877 F. Supp. 245 (E.D. Pa. 1995) ........................................................................... 14

Scheidt v. Klein, 956 F.2d 963 (10th Cir. 1992) ................................................................................ 19

Soechting v. Perry, 548 U.S. 922 (2006) ................................................................................................ 14

Taylor v. White, 132 F.R.D. 636 (E.D. Pa. 1990) .............................................................................. 10

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TABLE OF AUTHORITIES (continued)

Page(s)

Tex. Democratic Party v. Hughs, No. 5:20-cv-8-OLG (S.D. Tex. Apr. 7, 2020)........................................................... 15

Titsworth v. Hodge, No. 17CV350, 2018 WL 3312985 (E.D. Okla. July 3, 2018) ................................. 17

Transp. Funding, LLC v. HVH Transp., Inc., 2:17-CV2106-JAR-GLR, 2017 WL 4223126 (D. Kan. Sept. 22, 2017) .................. 17

Uffner v. La Reunion Francaise, S.A., 244 F.3d 38, 42–43 (1st Cir. 2001 ................................................................. 13

Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016) .................................................................................. 15

Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635 (2002) .................................................................................................. 4

Voting for Am., Inc. v. Andrade, 888 F. Supp. 2d 816 (S.D. Tex. 2012), rev’d and remanded sub nom. Voting for Am., Inc. v. Steen, 732 F.3d 382 (5th Cir. 2013) .................................. 15

Wachovia Bank v. Schmidt, 546 U.S. 303 (2006) ................................................................................................ 18

Statutes

28 U.S.C. § 1391......................................................................................................... 1, 9

Okla. Stat. tit. 26, § 2-101.9 ........................................................................................ 12

Okla. Stat. tit. 26, § 2-107 ........................................................................................... 11

Okla. Stat. tit. 26, § 2-107.1 ....................................................................................... 11

Okla. Stat. tit. 26, § 2-111–12 ...................................................................................... 5

Okla. Stat. tit. 26, § 3-102 ........................................................................................... 12

Okla. Stat. tit. 26, § 3-111 ........................................................................................... 11

Okla. Stat. tit. 26, § 3-113 ........................................................................................... 12

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TABLE OF AUTHORITIES (continued)

Page(s)

Okla. Stat. tit. 26, § 7-114 ............................................................................................. 6

Okla. Stat. tit. 26, § 7-136 ............................................................................................. 9

Okla. Stat. tit. 26 § 14-104 ........................................................................................ 2, 9

Okla. Stat. tit. 26, § 14-104–07 ..................................................................................... 5

Okla. Stat. tit. 26, § 14-111.1 ........................................................................................ 5

Okla. Stat. tit. 26, § 14-112.1 ........................................................................................ 5

Okla. Stat. tit. 26, § 14-113.2 ........................................................................................ 2

Okla. Stat. tit. 26, § 14-115.1 ........................................................................................ 2

Okla. Stat. tit. 26, § 14-122–23 ..................................................................................... 5

Okla. Stat. tit. 26, § 14-124 .......................................................................................... 5

Okla. Stat. tit. 26, § 14-125 ........................................................................................... 5

Okla. Stat. tit. 26, § 16-123.1 ........................................................................................ 2

Okla. Stat. tit. 26, § 3-102.............................................................................................. 7

Okla. Stat. tit. 26, §  3-109........................................................................................... 11

Other AuthORITIES

Wright & Miller, 14D Fed. Prac. & Proc. Juris. § 3801 (4th ed.)......................... 18, 19

13 Bus. & Com. Litig. Fed. Cts. § 140:38 (4th ed.) ..................................................... 10

Annemarie Cuccia, Financial institutions offer free absentee voter services, NONDOC (June 5, 2020), https://nondoc.com/2020/06/05/financial-institutions-offer-freeabsentee-voter-services/ ......................................................................................... 12

Carmen Forman, Some banks offer free notary, copy services for absentee voters, The Oklahoman (June 6, 2020) ................................................... 12

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TABLE OF AUTHORITIES (continued)

Page(s)

CDC, 500 Largest Cities by State and Population, https://www.cdc.gov/500cities/pdf/500-Cities-Listed-by-State.pdf (based on 2010 U.S. Census data) (last visited July 9, 2020)............................... 12

In re: Court Operations Under the Exigent Circumstances Created by the Novel Coronavirus and Associated Disease (COVID-19), General Order 20-18 (N.D. Okla. June 30, 2020), https://www.oknd.uscourts.gov/docs/aef2eb52-60ce-484b-bdd76b8ab3a51545/20go18.pdf ...................................................................................... 21

Okla. Const. art. 3, § 2 ................................................................................................... 5

Okla. State Election Bd., Find Free Absentee Voter Services, https://www.ok.gov/elections/Notary_Services.html (last visited July 9, 2020).................................................................................................................... 12

Okla. State Election Bd., https://www.ok.gov/elections/index.html (last visited July 9, 2020) ................................................................................................. 5

Okla. State Election Bd., OK Voter Portal, https://www.ok.gov/elections/OVP.html (last visited July 9, 2020)........................ 8

Okla. State Election Bd., Okla. Specifications for Digital Ballot Printing ¶ 2.3, https://www.ok.gov/elections/docs/vris/Oklahoma%20Specifications %20for%20Digital%20Ballot%20Printing%20October%202014.pdf ...................... 8

Okla. State Election Bd., Physically Incapacitated Absentee Instructions (June 30), YouTube (June 12, 2020), https://www.youtube.com/watch?v=IFPTutvHOA0 ................................................ 7

Okla. State Election Bd., Standard Absentee Instructions (June 30), YouTube (June 12, 2020), https://www.youtube.com/watch?v=6dwTMrMiyQ ............................................................................................................. 7

Okla. State Election Bd., State Election Board Secretary and Members, https://www.ok.gov/elections/About_Us/Secretary_and_Board/index. html (last visited July 10, 2020) ............................................................................ 10

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TABLE OF AUTHORITIES (continued)

Page(s)

Testimony of Paul Ziriax Before the Subcomm. on Investigations and Oversight and Subcomm. on Research and Tech. of the H. Comm. on Sci., Space, and Tech. 2 (June 25, 2019), https://science.house.gov/imo/media/doc/Ziriax%20Testimony.pdf ........................ 6

U.S. Att’y’s Office N.D. Okla., About, https://www.justice.gov/usaondok/about (last visited July 9, 2020).................................................................... 12

U.S. Dist. Ct., N.D. Okla., NDOK Map, https://www.oknd.uscourts.gov/ndok-map-0 (last visited July 9, 2020)........................................................................................................................ 11

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INTRODUCTION Plaintiffs DCCC and the Oklahoma Democratic Party (“ODP”) challenge the constitutionality of unduly burdensome and onerous election laws. Oklahoma law confers upon Defendants Paul Ziriax (“Secretary Ziriax”) and Members of the State Election Board (the “Board” or “Members of the Board”) Tom Montgomery, Dr. Tim Mauldin, Heather Mahieu Cline, Jerry Buchanan, and Debi Thompson (together, “Defendants”), all of whom are named in their official capacities and who, in those capacities, have legal responsibility for implementing and enforcing the laws at issue in this case. Nevertheless, in their Brief in Support of Motion to Dismiss Improper Parties and Dismiss or Transfer Venue (ECF No. 24), the Members of the Board seek dismissal from this litigation, claiming they are not proper or necessary parties (“Mot. to Dismiss”). The Members of the Board are clearly wrong: under the long-standing doctrine of Ex parte Young, they are properly sued in this action. And Defendants’ request to transfer venue reveals this motion for what it really is: a transparent attempt to slow these proceedings and move this case to a venue that Defendants apparently view as friendlier to their defense. Defendants’ venue argument is as flawed as the arguments the Members of the Board present to attempt to avoid their legal responsibility for administering Oklahoma’s elections. It rests upon the baseless premise that the Western District of Oklahoma is the exclusive venue for federal challenges to Oklahoma’s election laws. This assertion is contrary to the plain language of the federal venue statute—28 U.S.C. § 1391—and further undermined by authority from across the country that, as state officials, defendants are deemed to reside wherever they carry out their official duties, which plainly includes the Northern District. Indeed, the largest county election board in the State—the Tulsa County Election Board—is located in the Northern District, and Defendant Members of the Board have direct

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responsibility for supervising the operations of the Tulsa County Election Board
(among others).
There is also another entirely independent basis for establishing venue in this
District. Under 28 U.S.C. § 1391(b)(2), venue is proper in any jurisdiction where
“substantial events material” to Plaintiffs’ claims occurred.1 Here, DCCC’s and ODP’s
members and constituents—Oklahoma voters—who reside within this District have
been and will continue to be burdened and disenfranchised by the challenged election
laws. Thousands of voters in this District are, for example, adversely affected by the
requirements to have their absentee ballots notarized or witnessed, to provide photo
identification, and to obtain postage for the absentee ballots at a time when the
COVID-19 pandemic is surging, including in cities and towns within the Northern
District. These voters also face the threat of prosecution in this District for requesting
absentee ballots and returning them, marked and sealed, on behalf of other voters
1 Plaintiffs claim that Oklahoma’s (1) notarization, witnessing, and photo ID requirements, Enrolled S.B. 210; Okla. Stat. tit. 26, §§ 14-113.2, 16-123.1 (the “Notarization, Witness, and Photo ID Requirements”), (2) refusal to prepay for postage to return completed absentee ballots (the “Postage Requirement”); (3) rejection of absentee ballots delivered after 7:00 p.m. on Election Day, Okla. Stat. tit. 26 § 14-104; (the “Election Day Receipt Deadline”); (4) criminalization of organizations, like Plaintiffs DCCC and ODP, for engaging in the activities of requesting or receiving absentee ballots on behalf of their constituents, Enrolled S.B. 1779, §§ 1(A)(1)–(4), (B)(1), 12, 14 (the “Ballot Request Criminalization”); (5) prevention of anyone from collecting sealed and voted absentee ballots, except in the case of physically incapacitated or emergency incapacitated voters, Okla. Stat. tit. 26, §§ 14-108(A), 14-115.1 (the “Absentee Assistance Ban”); and (6) criminalization of the same, Enrolled S.B. 1779, §§ 1(A)(2), (B)(1), 12, 14 (the “Absentee Assistance Criminalization”), unconstitutionally burden their constituents’ right to vote in violation of the First and Fourteenth Amendments. Plaintiffs separately claim that the Postage Requirement violates the Twenty-Fourth Amendment, that the Election Day Receipt Deadline denies Plaintiffs procedural due process, and that the Ballot Request Criminalization, Absentee Assistance Ban, and Absentee Assistance Criminalization violate their First Amendment rights of free speech and association, as incorporated against the states by the Fourteenth Amendment.
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who require assistance. These are just a few of the many “substantial events material” to Plaintiffs’ claims that occurred and will occur in the Northern District and that give rise to venue under 28 U.S.C. § 1391(b)(2).
Finally, Defendants have not met their burden to show that Plaintiffs’ choice of forum should be disturbed. Mere statements about witnesses located in a different district⸺without explanation of the materiality of their testimony or their unwillingness to come to trial in the Northern District⸺is insufficient. Moreover, in the immediate term, proceedings will be conducted remotely unless “the interests of justice outweigh the safety risks.”2
This Court should deny Defendants’ Motion to Dismiss and Transfer. ARGUMENT
I. The Members of the Board are proper defendants in this case. The Members of the Board’s argument that they are not proper parties to this
case is flatly wrong. Their motion is not completely clear as to whether they mean to argue that they are not proper parties under Ex parte Young, or if Plaintiffs lack standing to sue them here. See Mot. to Dismiss at 1–2 (arguing not proper parties under Ex Parte Young, but citing cases applying Article III standing requirements). Either way, the arguments fail. The Members of the Board, all sued in their official capacities, are appropriate Defendants under Ex parte Young, and Plaintiffs’ injuries are traceable to them and redressable by injunctive relief ordered against them.
A. Plaintiffs properly sued the Members of the Board under Ex parte Young.
The Members of the Board’s assertion that they are not proper defendants in this litigation is directly contrary to the well-established Ex Parte Young doctrine. Ex Parte Young requires two steps: first, a “straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and seeks relief properly
2 See infra note 21.
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characterized as prospective,” Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002) (alterations incorporated), and second, consideration of whether the official in question has “some connection” to the challenged law’s enforcement. As the Tenth Circuit has emphasized, “[a]n officer need not have a ‘special connection’ to the allegedly unconstitutional statute; rather, he need only ‘have a particular duty to ‘enforce’ the statute in question and a demonstrated willingness to exercise that duty.’” Chamber of Commerce of U.S. v. Edmondson, 594 F.3d 742, 760 (10th Cir. 2010) (citation omitted). “‘So long as there is [some] connection [with enforcement of the act], it is not necessary that the officer’s enforcement duties be noted in the act.’” Kitchen v. Herbert, 755 F.3d 1193, 1201 (10th Cir. 2014) (citation omitted). Consistent with this long-standing jurisprudence, a state official is a proper defendant if she is “‘responsible for ‘general supervision’ of the administration by the local . . . officials’ of a challenged provision.” Id. at 1204 (citation omitted). This remains the case, even if the state official is “‘not specifically empowered to ensure compliance with the statute at issue,’” so long as she “‘clearly [has] assisted or currently assist[s] in giving effect to the law.’” Id. (emphasis added) (citing Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818, 828 (10th Cir. 2007)).3
These requirements are easily satisfied here. As described below, the Board oversees all of Oklahoma’s county election boards, ensuring their compliance with the very laws Plaintiffs are challenging. The relief Plaintiffs seek thus necessitates an injunction against the Members of the Board to prevent them from using their supervisory power to require enforcement of these laws. Established in 1907, the Board is the “administrative agency for the conduct of state elections and the
3 All of this is grounded in the plain language of Ex parte Young, 209 U.S. 123, 157 (1908), itself, in which the Supreme Court wrote, over 100 years ago: “The fact that the state officer, by virtue of his office, has some connection with the enforcement of the act, is the important and material fact, and whether it arises out of the general law, or is specially created by the act itself, is not material so long as it exists.”
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oversight of the state’s 77 county election boards.”4 See Okla. Const. art. 3, § 2 (noting that the Board is “charged with the supervision of . . . elections”). The county election boards, in turn, are required to review requests for absentee ballots; print, test, and mail absentee ballots to eligible voters; and determine the eligibility of and count returned absentee ballots. See Okla. Stat. tit. 26, §§ 14-101(A), 14-104–07, 14-111.1, 14-112.1, 14-122–23, 14-125. The Board authorizes the county election boards to appoint “absentee counters” to tally the returned absentee ballots. Id. § 14-124. While the county boards carry out these, and other basic functions of election administration, it is the Board that supervises them and thus has supervisory authority over these functions.
The Board’s expansive supervisory powers over the 77 county election boards alone—which include even the appointment of county election board officials—each of which engages in actions that are challenged in this lawsuit, is itself sufficient to find that the Board has “some connection with the enforcement of [these provisions,]” including the power to ensure that the county election boards act in compliance with Oklahoma law. See id. §§ 2-111–12; Ex parte Young, 209 U.S. at 157. As such, the Members of the Board are proper parties.
As the Tenth Circuit has noted, a state official’s specific enforcement duties need not be enumerated in the challenged statute. See Kitchen, 755 F.3d at 1201. The fact that the Board oversees the county election boards, and therefore ensures their compliance with election laws, is sufficient evidence of the Members of the Board’s enforcement authority. The Board “‘clearly ha[s] assisted or currently assist[s] in giving effect to the [challenged provisions,]” by virtue of its oversight function, which the Tenth Circuit has upheld as sufficient when naming defendants. Id. at 1204 (citing Prairie Band Potawatomi Nation, 476 F.3d at 828). Further, as Secretary
4 Okla. State Election Bd., https://www.ok.gov/elections/index.html (last visited July 9, 2020) (emphasis added).
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Ziriax has aptly noted, it is the Board that “owns [the very] network used to securely communicate with county election boards.”5
Gentges v. Oklahoma State Election Board, 319 P.3d 674 (2014) is instructive. There, a voter sued the Board regarding the imposition of a voter ID election law. Notably, the Court found that it had jurisdiction over the Board to decide the lawfulness of the voter ID requirement, and the Board did not contest that determination. The photo ID requirement that Plaintiffs challenge here, while applied to absentee ballots, mimics the same requirement applicable when voting in person. See Enrolled S.B. 210, § 3(A)(1) (noting that voters may “attach a photocopy of a form of identification described in” Okla. Stat. tit. 26, § 7-114, the very requirement challenged in Gentges). Thus, both Gentges, and the Board’s prior treatment of the constitutionality of a photo ID requirement demonstrate that the Board has enforcement authority over the one challenged in this case, even if the statute does not explicitly say so. See Enrolled S.B. 210.
B. Plaintiffs’ injuries are traceable to and redressable (at least in part) by Members of the Board.
To the extent the Members of the Board mean to argue that they are not proper parties on the grounds that Plaintiffs’ injuries are not traceable or redressable to them, they are also wrong as a matter of both fact and law. Article III requires that plaintiffs establish that their injury is “fairly traceable to the challenged action of the defendant” and “a substantial likelihood that the relief requested will redress [their] injury in fact.” E.g., Kitchen, 755 F.3d at 1201; see also Nova Health Sys. v. Gandy, 416 F.3d 1149, 1158 (10th Cir. 2005). Plaintiffs bringing actions against public officials can satisfy the causation and redressability requirements of standing by showing “‘a meaningful nexus’ between the defendant and the asserted injury.”
5 Testimony of Paul Ziriax Before the Subcomm. on Investigations and Oversight and Subcomm. on Research and Tech. of the H. Comm. on Sci., Space, and Tech. 2 (June 25, 2019), https://science.house.gov/imo/media/doc/Ziriax%20Testimony.pdf.
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Kitchen, 755 F.3d at 1201 (citing Bronson v. Swensen, 500 F.3d 1099, 1111–12 (10th Cir. 2007)). Plaintiffs need not show complete relief will be redressed by all defendants in order to establish standing. Cf. Chevron Corp. v. Donziger, 974 F. Supp. 2d 362, 639 (S.D.N.Y. 2014) (finding fact that particular equitable decree “would not provide a complete remedy . . . does not preclude the [c]ourt from granting equitable relief that would solve the problem in part”). Therefore, even if the Members of the Board can provide only partial relief, Plaintiffs have satisfied the requirements of standing.
The Members of the Board are directly involved in voters obtaining and receiving absentee ballots, as well as whether voters’ returned marked and sealed ballots are counted—actions which are central to the relief Plaintiffs seek. Should Plaintiffs prevail, the Board would be required to change its operations, including its guidance for the county election boards and voters, promulgated on its website and in publications it distributes to Oklahoma voters and videos posted online to describe some of the challenged provisions—not to mention the ballot materials sent to voters.6 See Atherton v. Ward, 22 F. Supp. 2d 1265, 1270 (W.D. Okla. 1998) (holding the Board responsible for changing forms distributed to voters and “training and educating their personnel[, including county election boards,]” on the terms of an order enjoining unconstitutional activity). As the Board provides “[a]ll forms required by law for state and county elections[,]” it must necessarily make any changes to these forms. See Okla. Stat. tit. 26, § 3-102.
6 See, e.g., Okla. State Election Bd., Standard Absentee Instructions (June 30), YouTube (June 12, 2020), https://www.youtube.com/watch?v=6-dwTMrMiyQ; Okla. State Election Bd., Physically Incapacitated Absentee Instructions (June 30), YouTube (June 12, 2020), https://www.youtube.com/watch?v=IFPTutvHOA0.
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Along these lines, the Members of the Board permit voters to request absentee ballots through the Board’s online OK Voter Portal.7 Therefore, if Plaintiffs were to prevail on their challenge to the Ballot Request Criminalization, the Members of the Board would no doubt need to amend the ballot request form, including modifying the OK Voter Portal to permit third parties like Plaintiffs to assist voters in requesting absentee ballots.
Moreover, the Members of the Board cannot gloss over their involvement in the preparation and printing of ballot files, directly at issue in this case. As Secretary Ziriax has himself testified, “[f]or every election, no matter how large or small, the State Election Board staff prepare the ballot files. All ballot printing vendors are certified and subject to the supervision of the State Election Board. The State Election Board contracts with printers for federal and state ballots[.]”8 Accordingly, by implication, the Members of the Board must also be the ones to change the ballot files, should this Court so order, before they are printed and distributed to county election boards.9
Additionally, as the Members of the Board have enforcement authority over the imposition of a photo ID, as demonstrated by Gentges, if Plaintiffs succeed on their claim that the photo ID requirement imposes an undue burden on the right to vote, they will be unable to receive the relief they desire, namely the enjoinment of this so onerous and unnecessary provision, and the assurance that their constituents’ ballots will be counted.
7 See Okla. State Election Bd., OK Voter Portal, https://www.ok.gov/elections/OVP.html (last visited July 9, 2020). 8 See supra note 5, at 3. 9 Okla. State Election Bd., Okla. Specifications for Digital Ballot Printing ¶ 2.3, https://www.ok.gov/elections/docs/vris/Oklahoma%20Specifications%20for%20Digita l%20Ballot%20Printing%20October%202014.pdf (noting the Board provides the ballot files, wherein absentee ballots are contained, to printers).
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Further, as Defendants note, the Members of the Board “certify the election results after receiving the results from each county board.” Mot. to Dismiss at 2 (citing Okla. Stat. tit. 26, § 7-136). Because of the Election Day Receipt Deadline for marked and sealed absentee ballots, see Okla. Stat. tit. 26, § 14-104, which will result in large-scale disenfranchisement were it to remain in place, Plaintiffs have requested this Court both enjoin the county certification deadline of the Friday after Election Day and the state certification deadline of the Tuesday after Election Day, and postpone each by one week. See ECF No. 18, Am. Compl. at 43. Plaintiffs are concerned that if the Members of the Board are dismissed from this case, should the Court find the Election Day Receipt Deadline violates the First and Fourteenth Amendments, both deadlines would not be able to be moved as Plaintiffs have requested and as necessary to rectify the undue burden and due process violation associated with the Election Day Receipt Deadline.10 Therefore, were the Members of the Board dismissed, Plaintiffs would risk not being able to receive their requested relief. II. Venue is proper in the Northern District of Oklahoma.
Defendants’ venue argument fares no better than the Member of the Board’s attempt to avoid responsibility in this action. The federal venue statute provides multiple grounds to establish venue in a civil action, 28 U.S.C. § 1391, and the Court need not find the “best” venue. See Employers Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1165 (10th Cir. 2010). Here, venue is proper in the Northern District on two independently sufficient grounds; the Court should deny Defendants’ motion to dismiss or transfer on these grounds.
10 See also supra note 5, at 3 (noting that State Election Board posts on its website “unofficial election results” for “every ballot that [is] cast by mail” and counted).
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A. Venue is proper in the Northern District based on residence. First, venue in the Northern District is proper under 28 U.S.C. § 1391(b)(1), which provides that venue is proper if one defendant resides in the district, and all defendants are residents of the state. Id. § 1391(b)(1). Defendant Jerry Buchanan resides in Tulsa, in the Northern District, and all Defendants reside in the State. See Mot. to Dismiss at 12–13 & n.2.11 Moreover, because all Defendants are state officials sued in their official capacity only, they are deemed to reside anywhere “they conduct their official duties”—not only in the state capitol or where their office is located. See Taylor v. White, 132 F.R.D. 636, 641 (E.D. Pa. 1990); 13 Bus. & Com. Litig. Fed. Cts. § 140:38 (4th ed.). Thus, even if none of the Defendants had their personal domicile in the Northern District, venue would still be proper here because the Defendants are state officials whose business is conducted here, as well as elsewhere around the State. The rationale for this is simple: “In the state context, there is little threat of inconvenience or even forum shopping, at least sufficient ‘to warrant a blanket rule that there may never be more than a single residence.’” Fla. Nursing Home Ass’n v. Page, 616 F.2d 1355, 1360 (5th Cir. 1980), rev’d on other grounds sub nom. Fla. Dep’t of Health & Rehab. Servs. v. Fla. Nursing Home Ass’n, 450 U.S. 147 (1981); Buffalo Teachers Fed’n, Inc. v. Helsby, 426 F. Supp. 828, 829–30 (S.D.N.Y. 1976). In a similar case, a district court determined that the “defendants’ argument that Michigan’s secretary of state performs her official duties only in Lansing, Michigan and therefore may be sued only there does not withstand even the basest analysis.” Bay Cty. Democratic Party v. Land, 340 F. Supp. 2d 802, 806 (E.D. Mich. 2004). The court’s holding was based on the fact that “[t]he Michigan secretary of state and director of elections have a statutory obligation to perform their official duties not only in Lansing but throughout the State.” Id. at 807. The elections

11 Okla. State Election Bd., State Election Board Secretary and Members,

https://www.ok.gov/elections/About_Us/Secretary_and_Board/index.html

(last

visited July 10, 2020).

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director “conduct[ed] training schools throughout this state” and “train[ed] all county, city, and township clerks.” Id. “The Michigan secretary of state’s mission statement requires that she . . . will serve the citizens of Michigan with programs designed to . . . ensure the integrity of . . . the statewide elections process.” Id. She held herself out to be the State’s “Chief Election Officer.” Id. Although all of the “election directives [at issue] were drafted in and distributed from Lansing,” suit was proper in the Eastern District of Michigan because the defendants performed their official duties there. Id. at 808.
The same is true here. Defendants, including Secretary Ziriax, perform their official duties in the Northern District of Oklahoma. As the Secretary of the Board, he is the “chief state election official” and has “general supervisory authority over county election boards and shall have the authority to provide administrative supervision to any county election board,” including the 11 counties in the Northern District.12 Okla. Stat. tit. 26, § 2-107. The Secretary must hold a training program “in each county” for precinct inspectors, judges, clerks and other precinct officials. Id. §§ 2-107.1, 3-111. He must also “cause regular inspections to be made of each county election board.” Id. § 3-109. The Northern District includes Tulsa County, which has the largest county election board by staff.13 The Secretary is also responsible for promulgating and repealing statewide “rules or regulations as the Secretary deems necessary to facilitate and assist in achieving and maintaining uniformity in the application, operation and interpretation of the state and federal election laws.” Okla. Stat. tit. 26, § 2-107. Moreover, the “Secretary . . . promote[s] and encourage[s] voter registration and voter participation in elections,” Id. The Board provides all required forms for state and county elections, id. § 3-102, and the Secretary “prescribe[s]” the
12 See U.S. Dist. Ct., N.D. Okla., NDOK Map, https://www.oknd.uscourts.gov/ndokmap-0 (last visited July 9, 2020). 13 See supra note 5, at 4.
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“[i]nstructions to voters describing the manner for casting one’s vote,” id. § 3-113. Over 27 percent of the State’s population votes in the Northern District,14 and Tulsa is the second most populous city in the State.15 In 2018, the Board spent $3.4 million in conducting three statewide elections and an additional $546,000 on election supplies, overtime, and training—some of which was expended in the Northern District.16 Oklahoma statutes contemplate that the Secretary and the Board travel on official business. Indeed, “[m]embers of the State Election Board” are paid a per diem and “mileage reimbursement” for travel for meetings across the State. Okla. Stat. tit. 26, § 2-101.9. Most recently, the Board partnered with banks and credit unions in Tulsa to provide voters with free access to notarization and photocopying services for identification cards.17
Finally, it is not at all unusual for Oklahoma state officials to have to defend against lawsuits in this District. To the contrary, cases are regularly brought against Oklahoma state officials in the Northern District and decided by this Court. See, e.g., Okla. Chapter of Am. Acad. of Pediatrics (OKAAP) v. Fogarty, No. 01CV0187CVESAJ, 2006 WL 1623529, at *3 (N.D. Okla. June 6, 2006), subsequently rev’d and remanded sub nom. Okla. Chapter of Am. Acad. of Pediatrics v. Fogarty, 472 F.3d 1208 (10th Cir. 2007); Reprod. Servs. v. Keating, 35 F. Supp. 2d 1332, 1337 (N.D.
14 See U.S. Att’y’s Office N.D. Okla., About, https://www.justice.gov/usao-ndok/about (last visited July 9, 2020). 15 CDC, 500 Largest Cities by State and Population, https://www.cdc.gov/500cities/pdf/500-Cities-Listed-by-State.pdf (based on 2010 U.S. Census data) (last visited July 9, 2020). 16 See supra note 5, at 4. 17 Carmen Forman, Some banks offer free notary, copy services for absentee voters, The Oklahoman (June 6, 2020), https://oklahoman.com/article/5663971/some-banks-offerfree-notary-copy-services-for-absentee-voters; Annemarie Cuccia, Financial institutions offer free absentee voter services, NONDOC (June 5, 2020), https://nondoc.com/2020/06/05/financial-institutions-offer-free-absentee-voterservices/; Okla. State Election Bd., Find Free Absentee Voter Services, https://www.ok.gov/elections/Notary_Services.html (last visited July 9, 2020).
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Okla. 1998). For all of these reasons, the Court should reject the Defendants’ arguments that they are not properly deemed to reside in the Northern District or that venue is not otherwise proper here.
B. Venue is also proper because “substantial events material to” Plaintiffs’ claims occurred and will occur in the Northern District.
Venue is also proper in this District for a second, independent reason. Under the federal venue statute, a party may file suit in “a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred.” 28 U.S.C. § 1391(b)(2). The Tenth Circuit “conduct[s] a two-part analysis when reviewing challenges to venue under Section 1391(b)(2).” Bartile Roofs, Inc., 618 F.3d at 1166. Under this analysis, venue is proper in the Northern District in this case under this analysis.
In applying the relevant two-part analysis, the Court, first, must “examine the nature of the plaintiff’s claims and the acts or omissions underlying those claims.” Id. “Second, [it] determine[s] whether substantial ‘events material to those claims occurred’ in the forum district.” Id. “The substantiality requirement is satisfied upon a showing of ‘acts and omissions that have a close nexus’ to the alleged claims.” Id. At the second step, the Court must consider the “entire sequence of events underlying the claim,” including where the loss or harm occurred. Id. at 1167. For example, in Bartile Roofs, the “alleged damages or loss under an insurance policy [ ] constitute[d] a substantial event” although the location of the damages, Wyoming, was “irrelevant to the interpretation of the C[ommercial] G[eneral] L[ability] policies” at issue, which were “negotiated in Utah, underwritten in Colorado, and executed in Utah.” Id. (citing Uffner v. La Reunion Francaise, S.A., 244 F.3d 38, 42–43 (1st Cir. 2001)); see also Bartile Roofs, 618 F.3d at 1157. The location of the loss was part of the “entire sequence of events underlying the claim” because “it form[ed] the basis of Bartile’s request for a defense and indemnification.” Bartile Roofs, 618 F.3d at 1167; see also
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Land, 340 F. Supp. 2d at 809 (“To establish a substantial connection to the claim, it is generally sufficient to demonstrate that injury or loss alleged in the lawsuit occurred in the chosen venue.”).
In cases involving state officials, a substantial connection to the claim occurs not only where the “triggering event” takes place, but also where the effects of the decision are felt. See McClure v. Manchin, 301 F. Supp. 2d 564, 569 (N.D. W.Va. 2003) (rejecting secretary of state’s claim that a state election law challenge must be brought in the district where the state government sits); Emison v. Catalano, 951 F. Supp. 714, 721 (E.D. Pa. 1996) (suits challenging official acts may be brought in the district where the effects of the challenged statute are brought despite being enacted elsewhere); Sch. Dist. of Phila. v. Pa. Milk Mktg. Bd., 877 F. Supp. 245, 249 (E.D. Pa. 1995) (rejecting argument that venue is proper only where official decision was made); see also Land, 340 F. Supp. 2d at 808–09 (“In this case, the effects of the election directive are felt statewide, including within Bay County where one of the plaintiffs is located.”).
Indeed, as noted above, courts consistently allow plaintiffs to challenge state election laws in federal districts that do not contain the offices of elections officials. Thus, as one court considering a very similar venue challenge in a voting case in Michigan recently observed, “[o]f the reported Sixth Circuit decisions brought against the Michigan secretary of state involving election law issues over the past twentyfive years, seven have been brought in the Eastern District,” which does not include the state capital. Land, 340 F. Supp. 2d at 806. There, as this Court should, the court rejected the defendants’ efforts to change venue. To name a few other examples, plaintiffs in voting rights cases have sued state officials in Milwaukee, not Madison, Wisconsin; Birmingham, not Montgomery, Alabama; and Laredo and Marshall, not Austin, Texas—repeatedly. See, e.g., Soechting v. Perry, 548 U.S. 922 (2006) (statewide redistricting plan challenged in E.D. Tex.); Bush v. Vera, 517 U.S. 952
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(1996) (statewide redistricting plan challenged in S.D. Tex.); Luft v. Evers, Nos. 163003, 16-3052, 16-3083 & 16-3091, 2020 WL 3496860 (7th Cir. June 29, 2020); Frank v. Walker, 768 F.3d 744 (7th Cir. 2014); Frank v. Walker, 819 F.3d 384 (7th Cir. 2016); Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016) (statewide voter ID law challenged in S.D. Tex.); Voting for Am., Inc. v. Andrade, 888 F. Supp. 2d 816 (S.D. Tex. 2012), rev’d and remanded sub nom. Voting for Am., Inc. v. Steen, 732 F.3d 382 (5th Cir. 2013) (statewide registration law challenged in E.D. Tex.); Greater Birmingham Ministries v. Merrill, 284 F. Supp. 3d 1253 (N.D. Ala. 2018); Chestnut v. Merrill, No. 2:18-CV00907-KOB, 2020 WL 1281236 (N.D. Ala. Mar. 17, 2020); Bruni v. Hughs, No. 5:20CV-35, 2020 WL 3452229 (S.D. Tex. June 24, 2020); Tex. Democratic Party v. Hughs, No. 5:20-cv-8-OLG (S.D. Tex. Apr. 7, 2020) (challenging secretary’s interpretation of statewide registration law); Lopez v. Abbott, 339 F. Supp. 3d 589 (S.D. Tex. 2018) (statewide redistricting plan); Cotham v. Garza, 905 F. Supp. 389 (S.D. Tex. 1995) (statewide law restricting what may be brought into voting booths).
Here, considering the “entire sequence of events underlying the claim,” “substantial events material” to Plaintiffs’ claims occurred in the Northern District. Plaintiffs bring constitutional claims that touch upon their and their constituents’ most fundamental rights to participate in elections and Plaintiffs’ inability to facilitate the exercise of these important rights during the present, unprecedented global pandemic. A substantial part of the “events or omissions giving rise to” these claims occurred or will occur in the Northern District. As noted, the Northern District is home to Tulsa, which has one of the State’s largest concentration of Democratic voters. Thus, many voters within Plaintiffs’ membership and constituency have struggled and will struggle to find notaries or two witnesses, or to copy their photo ID in the Northern District. Others will have to risk their lives in order to obtain postage for their ballots in the Northern District. Voters who timely request and mail their absentee ballots might have those ballots rejected for arriving too late in
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counties in the Northern District. Plaintiffs are unable to request or collect absentee ballots on behalf of constituents there for fear that they will be criminally prosecuted in the Northern District.
In support of their motion, Defendants rely upon a case from the Eighth Circuit, but fail to mention that it articulates the minority position on this venue issue, and one that the Tenth Circuit has explicitly declined to adopt.18 See Bartile Roofs, Inc., 618 F.3d at 1166 n.11. While it is true that, in a 1999 unpublished opinion, Goff v. Hackett Stone Co., No. 98–7137, 1999 WL 397409, at *1 (10th Cir. June 17, 1999), the Tenth Circuit stated that “venue statutes are generally designed for the benefit of defendants,” and cited an Eighth Circuit case, the Circuit has since made clear Goff is not precedential. To the contrary, when confronted with that same defendant-centric argument in Bartile Roofs, the Tenth Circuit dismissed Goff as a “non-binding order” and expressly declined to adopt the Eighth Circuit’s position. 618 F.3d at 1166 n.11.19
18 Defendants also claim that the Second and Eleventh Circuits have adopted the Eighth Circuit’s rule, Mot. to Dismiss at 7, but the Second Circuit has not. See Bates v. C & S Adjusters, Inc., 980 F.2d 865, 868 (2d Cir. 1992) (finding it irrelevant that “defendant did not deliberately direct a communication to the plaintiff’s district” because “[u]nder the new version of section 1391(b)(2), we must determine only whether a “substantial part of the events ... giving rise to the claim” occurred in the Western District of New York); see also Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 358 (2d Cir. 2005) (“[A] a number of relevant events occurred in New Jersey—the original injury, the trial, and the underlying judgment that [plaintiff] Gulf is seeking to avoid all happened in New Jersey.”). To the extent that the two Second Circuit cases Defendants cite are inconsistent with Bates, a subsequent panel cannot overrule a prior one. Lotes Co. v. Hon Hai Precision Indus. Co., 753 F.3d 395, 405 (2d Cir. 2014). 19 At least four circuits have similarly rejected the Eighth Circuit’s rule. See Mot. to Dismiss at 9 n.1 (listing the First, Third, and Sixth Circuits); see also Mitrano v. Hawes, 377 F.3d 402, 406 (4th Cir. 2004) (allowing venue where the plaintiff performed his work under the contract at issue). That is the “majority view.” Cf. Mot. to Dismiss at 10. Given Congress’ continued liberalization of the venue rules, the majority view makes sense.
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Moreover, the language in Goff is dicta, see id., and its circumstances are clearly distinguishable from those at issue here. In Goff, the Tenth Circuit determined that the Eastern District of Oklahoma correctly held that venue was improper in a wrongful termination suit when the parties agreed that “[a]ll aspects of plaintiff’s employment, including his discharge, occurred in Arkansas.” Goff, 1999 WL 397409, at *1 (emphasis added). The issuance of an order from an Oklahoma court that “allegedly led to [plaintiff’s] discharge was too tangential to be considered a substantial part of the events giving rise to the claim.” Id. Here, in contrast, “all aspects” of Plaintiffs’ claims did not occur in the Western District. Far from it. Thousands of Plaintiffs’ voters live in the Northern District and will have to confront and grapple with (and be injured by) the challenged laws right here. Thousands of Plaintiffs’ voters in Tulsa, for example, cannot locate witnesses or notaries without risking their lives. Others will risk prosecution in the Northern District if they request absentee ballots for other voters (or decline to do so out of fear of prosecution).20
20 Defendants claim that district courts in the Tenth Circuit have “tended to follow” the Goff dicta. Mot to Dismiss at 9. Not really. Some courts considered the plaintiffs’ activities as well. See, e.g., Hanson v. Bosley & Bratch, Inc., No. 17CV1489, 2018 WL 4491424, at *3 (D. Colo. Sept. 18, 2018) (relying heavily on Bartile Roofs and determining that “plaintiff’s signing of the contract and defendants’ communication about the missed deadline,” which occurred in the district, “were ‘at most tangential to the underlying legal malpractice claim’”) (emphasis added); see also Transp. Funding, LLC v. HVH Transp., Inc., 2:17-CV2106-JAR-GLR, 2017 WL 4223126, at *4 & n.58 (D. Kan. Sept. 22, 2017) (relying on Bartile Roofs for the test). Other cases are distinguishable. See Titsworth v. Hodge, No. 17CV350, 2018 WL 3312985, at *2– 3 (E.D. Okla. July 3, 2018) (“Defendants,” who allegedly provided negligent medical treatment in Arkansas, “had no connection to the Plaintiff’s original injuries” that occurred in Oklahoma); see also Quorum Health Res., LLC v. Lexington Ins. Co., No. 11CV374, 2012 WL 769744, at *3 (D.N.M. Mar. 7, 2012) (“the facts giving rise to the lawsuit have no material relation or significant connection to the plaintiff’s chosen forum”). Here, Defendants have a connection to Plaintiffs’ and their constituents’ injuries occurring in the Northern District. The “facts giving rise to the lawsuit”⸺the risks of finding witnesses, notaries, or copies of photo identification, the inability to
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Defendants’ reliance on Leroy v. Great W. United Corp., 443 U.S. 173, 183–84 (1979), is also misplaced. Mot. to Dismiss at 7. Leroy interpreted the pre-1990 version of the venue statute, which allowed venue in “the judicial district . . . in which the claim arose.” Id. at 184 (emphasis added). The old statute also required that all defendants live in the district, not just one. Id. at 178 n.9 (for suits not based on diversity). Even then, the Court said that the statute “restricted venue either to the residence of the defendants or to ‘a place which may be more convenient to the litigants’—i.e., both of them—'or to the witnesses who are to testify in the case.’” Id. at 185 (emphasis added). Indeed, venue is a privilege that belongs to Plaintiffs as well. Since Leroy, “Congress has continually liberalized the provisions for venue.” Wright & Miller, 14D Fed. Prac. & Proc. Juris. § 3801 (4th ed.). Now, more than ever, “venue [ ] takes into consideration the location of parties [other than the defendants] and their activities.” Id. “Venue is largely a matter of litigational convenience” generally, not just for defendants. Wachovia Bank v. Schmidt, 546 U.S. 303, 316 (2006); see also Wright & Miller, supra, § 3801 (“The principal focus of a venue inquiry is the ‘convenience of litigants and witnesses.’” (emphasis added)).
Defendants argue that venue always must provide protection beyond the requirements of personal jurisdiction. Mot. to Dismiss at 10–12 (citing Wright & Miller § 3801). But that is not the rule. Congress specifically contemplated a perfect overlap between venue and personal jurisdiction in Section 1391(b)(3). Moreover, “[p]ersonal jurisdiction and venue, though separate concepts, share some traits.” Wright and Miller, supra, § 3801. “Both are concerned with the territorial reach of the court,” “[b]oth depend on statutory factors but incorporate equitable and prudential considerations,” and “[m]ost courts of appeal assess lower court venue determinations by the same standard as personal jurisdiction determinations.” Id.
request or collect ballots given the threat of prosecution, and the absentee ballot’s late arrival to the county election board⸺will all occur in the Northern District.
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There might be some cases where venue and personal jurisdiction overlap. For example, such an occurrence would be common in the 28 states where there is only one federal district. And there is no evidence that allowing Defendants to be sued in both the Northern and Western Districts of Oklahoma renders venue a “nullity.” Mot. to Dismiss at 12. The venue statute likely protects Defendants from being sued in other states in which they might have sufficient minimum contacts.
Moreover, Defendants’ venue rule would mean that no one could challenge an Oklahoma election law anywhere but the Western District, see Mot. to Dismiss at 9. It would make no sense for venue to prevent a state official from being sued in twothirds of his state. Congress intended venue to be proper in districts other than where defendants reside. Limiting venue to the district of the official’s home and/or office would render Section 1391(b)(2) superfluous, as Section 1391(b)(1) sets forth the separate basis for venue in “a judicial district in which any defendant resides.” As a result, a “place of trial” is not “unfair or inconvenient” just because a defendant does not reside there. Wright and Miller, supra, § 3801. III. Defendants have not met their burden to justify transfer under
Section 1404. Finally, the Court should decline Defendants’ invitation to transfer venue in this case. While it is true that a court may transfer a case to another proper venue “[f]or the convenience of parties and witnesses, in the interest of justice,” 28 U.S.C. § 1404(a), “[t]he ‘party moving to transfer . . . bears the burden of establishing that the existing forum is inconvenient.’” Bartile Roofs, Inc., 618 F.3d at 1167 (quoting Scheidt v. Klein, 956 F.2d 963, 965 (10th Cir. 1992) (internal quotation marks omitted)). A “plaintiff’s choice of forum is entitled to some deference.” Wright and Miller, supra, § 3801. Here, Defendants have failed to carry their burden.
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The Tenth Circuit has been clear: “Merely shifting the inconvenience from one side to the other . . . is not a permissible justification for a change of venue.” Bartile Roofs, Inc., 618 F.3d at 1167. The court must weigh:
the plaintiff's choice of forum; the accessibility of witnesses and other sources of proof, including the availability of compulsory process to insure attendance of witnesses; the cost of making the necessary proof; questions as to the enforceability of a judgment if one is obtained; relative advantages and obstacles to a fair trial; difficulties that may arise from congested dockets; the possibility of the existence of questions arising in the area of conflict of laws; the advantage of having a local court determine questions of local law; and[ ] all other considerations of a practical nature that make a trial easy, expeditious and economical. Id. (quoting Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1516 (10th Cir. 1991) (internal quotation marks omitted)). The balance of these factors must “strongly favor[ ]” a transfer of venue under § 1404(a). Bartile Roofs, Inc., 618 F.3d at 1167 n.13 (emphasis added). As relevant here, “the plaintiff’s choice of forum should rarely be disturbed.” Id. A general allegation that necessary witnesses are located in the transferee forum is insufficient to justify transfer. Id. at 1169. “To demonstrate inconvenience, the movant must (1) identify the witnesses and their locations; (2) ‘indicate the quality or materiality of the[ir] testimony’; and (3) ‘show[ ] that any such witnesses were unwilling to come to trial ... [,] that deposition testimony would be unsatisfactory[,] or that the use of compulsory process would be necessary.’” Id. at 1169 (citation omitted). “If the moving party merely has made a general allegation that necessary witnesses are located in the transferee forum, ... the application for transferring the case should be denied.” Id. (quoting Wright & Miller). For example, the Tenth Circuit was not persuaded by the defendant’s allegation “that the majority of potential witnesses are Utah residents” because it “ha[d] neither identified those witnesses with specificity nor indicated the subject matter of their testimony.” Bartile Roofs, 618 F.3d at 1169.
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Here, the balance of factors does not favor transfer. Plaintiffs’ choice of forum cuts against transfer. In addition, Plaintiffs’ witnesses will include voters who live and vote in the Northern District. At least one defendant lives in Tulsa, Oklahoma. See supra p. 10.
Defendants rely entirely on the “accessibility of witnesses” factor and state that the remaining factors are “neutral or have minimal impact on the transfer analysis in this case.” Mot. to Dismiss at 16. But Defendants’ “general allegation” that “[a]ll of the relevant witnesses are in Oklahoma City or out of state,” id., is incorrect and, in any event, insufficient to warrant transfer, see Bartile Roofs, Inc., 618 F.3d at 1169. As stated, Plaintiffs plan to call witnesses who live and vote in the Northern District, which includes the second biggest city in the State. Plaintiff ODP has a significant membership in the Northern District. In addition, at least one Defendant lives in the Northern District, so he would have to “spend four hours on the road for every day of trial,” Mot. to Dismiss at 16, if the case were transferred. And, in the new era of court during COVID-19, remote testimony might accommodate any true inconvenience from traveling.21 If this Court dismisses all Defendants but Secretary Ziriax, the convenience of Plaintiffs’ numerous voter witnesses and party officials far outweighs the trouble of a single defendant driving for a few hours or staying in a hotel away from home for a few days.
CONCLUSION All Defendants named in the complaint are proper and should not be dismissed. Venue is proper in the Northern District under the federal venue statute for multiple independent reasons. Finally, Defendants have failed to carry their
21 See In re: Court Operations Under the Exigent Circumstances Created by the Novel Coronavirus and Associated Disease (COVID-19), General Order 20-18 (N.D. Okla. June 30, 2020), https://www.oknd.uscourts.gov/docs/aef2eb52-60ce-484bbdd7-6b8ab3a51545/20go18.pdf.
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heavy burden to justify transferring venue in this case. For all of these reasons, the Court should deny Defendants’ motion.

DATED: July 10, 2020

s/ Frank W. Frasier Frank W. Frasier, OK# 17864 FRASIER, FRASIER & HICKMAN, LLP 1700 Southwest Boulevard Tulsa, OK 74107 Telephone: 918.584.4724 Facsimile: 918.583.5637 FFrasier@frasierlaw.com
Marc E. Elias John Devaney Ariel B. Glickman PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 800 Washington, DC 20005-3960 Telephone: 202.654.6200 Facsimile: 202.654.6211 MElias@perkinscoie.com JDevaney@perkinscoie.com AGlickman@perkinscoie.com
Charles G. Curtis, Jr. Sopen B. Shah Will M. Conley PERKINS COIE LLP 33 East Main Street, Suite 201 Madison, WI 53703-3095 Telephone: 608.663.7460 Facsimile: 608.663.7499 CCurtis@perkinscoie.com SShah@perkinscoie.com
Counsel for Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that on July 10, 2020, I electronically transmitted Plaintiffs’ Response to Defendants’ Motion to Dismiss Improper and Dismiss or Transfer Venue to the Clerk of Court using the ECF System for filing, which will transmit a Notice of Electronic Filing and a copy of the document to all counsel who have entered an appearance in this case. Additionally, an electronic copy was transmitted to the following counsel: Mithun Mansinghani, Mithun.Mansinghani@oag.ok.gov Bryan Cleveland, Bryan.Cleveland@oag.ok.gov Thomas Schneider, Thomas.Schneider@oag.ok.gov

DATED: July 10, 2020

s/ Frank W. Frasier Frank W. Frasier, OK# 17864 FRASIER, FRASIER & HICKMAN, LLP 1700 Southwest Boulevard Tulsa, OK 74107 Telephone: 918.584.4724 Facsimile: 918.583.5637 FFrasier@frasierlaw.com

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 Case 4:20-cv-00211-JED-JFJ Document 32 Filed in USDC ND/OK on 07/24/20 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

DCCC, et al., v.

Plaintiffs,

PAUL ZIRIAX, in his official capacity as SECRETARY OF THE OKLAHOMA STATE ELECTION BOARD, et al.,
Defendants.

Case No: 20-CV-211-JED-JFJ

DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION TO DISMISS IMPROPER PARTIES AND DISMISS OR TRANSFER VENUE AND BRIEF IN SUPPORT

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TABLE OF CONTENTS I. Plaintiffs’ arguments on the Board Members misunderstand Oklahoma law. .................. 1 II. Venue is improper in this District. .............................................................................................. 4
A. Defendants do not officially reside in the Northern District, so venue is improper here under § 1391(b)(1).................................................................. 4
B. Defendants’ events or omissions occurred in the Western District, so venue is improper here under § 1391(b)(2). ........................................................... 5
CONCLUSION ......................................................................................................................................... 10
i

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Plaintiffs’ opposition to the motion to dismiss seeks to (1) rely on a misunderstanding of Oklahoma law in order to force improper Defendants into this action and (2) apply venue rules never accepted by the Tenth Circuit to warrant proceeding with this suit here.
I. Plaintiffs’ arguments on the Board Members misunderstand Oklahoma law. A quick look at the State Election Board’s “About Us” pages online would correct many of
Plaintiffs’ mistakes in their opposition brief. As the website explains, “The term ‘State Election Board’ may refer to either the agency or the three-member board.” State Election Board Secretary and Members, OKLA. STATE ELECTION BD.1 This distinction exists because the Board Members do not govern all actions of the agency; instead, management of the State Election Board is split between the Board Members and the Secretary of the State Election Board, depending on the issue. Id. The Board Members handle “certifying state and federal election results, appointing county election board members, and deciding contests of candidacy,” but do not handle many other responsibilities of the agency. Id.
Plaintiffs’ arguments therefore repeatedly confuse the role of the agency as a whole with the roles of the two sets of officials that take actions on behalf of the State Election Board: Secretary Ziriax, on the one hand, and the Board Members, on the other. Put another way, the relevant agency here is the State Election Board, but since the agency has sovereign immunity from suit, Ex Parte Young requires analyzing who is the relevant enforcement officer within the agency for the challenged agency actions. 209 U.S. 123, 157 (1908). So, while Plaintiffs cite several sources referring to actions and duties of the “State Election Board,” their mistake is failing to distinguish whether any given act is assigned by law to the Secretary or instead to the Board Members.
Plaintiffs are correct that the agency, for example, has “oversight of the state’s 77 county election boards,” Okla. Const. art. 3, § 2, but that fact alone is insufficient to determine which state official within
1 https://www.ok.gov/elections/About_Us/Secretary_and_Board/index.html
1

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the State Election Board is a proper party to this suit. The constitutional oversight of county election boards is split between the Board Members and the Secretary: the Board Members have appointment and removal authority while the Secretary engages in almost all other supervision of county election boards, including their “application, operation and interpretation of the state and federal election laws.” OKLA. STAT. tit. 26, §§ 2-107, 2-111, 2-114. Because this suit is about the latter duties, the sole proper officer to sue is the Secretary, not the Board Members.2
As another example, the Secretary employs the personnel who perform the agency’s administrative duties and defines their roles. OKLA. STAT. tit. 26, § 2-107. Thus, when Plaintiffs cite his testimony where he stated that the agency staff programs and tests all election databases and “prepare the ballot files,” Doc. 31 at 6 n.5, 8, they fail to realize that it is the Secretary—not the Board Members— who manages these agency staff actions.3 Similarly, Plaintiffs’ suggestions that changes to guidance to county election boards or to the agency website and databases require the Board Members, Doc. 31 at 7-9, simply fail to understand that those agency tasks are managed by the Secretary.
Plaintiffs also fail to rebut the extended citations in the Motion showing that the statutes they are challenging are handled by the Secretary and not the Board Members. See Doc. 24 at 2-3. They note a state court case that included the entire agency as a defendant. Doc. 31 at 6, 8 (citing Gentges v. Oklahoma State Election Board, 319 P.3d 674 (Okla. 2014)). Yet Plaintiffs do not contend that the state has waived sovereign immunity of its agencies in federal court; indeed, they do not here attempt to sue the agency, but instead they are attempting to sue the officials within the agency enforcing the challenged laws under Ex Parte Young. Here, the Secretary alone, not the Board Members, is the relevant official. They also note
2 Similarly, while Plaintiffs note the agency “owns [the very] network used to securely communicate with county election boards,” Doc. 31 at 6, communications about applying state election law come from the Secretary and not the Board Members. 3 See Testimony of Paul Ziriax Before the Subcomm. on Investigations and Oversight 2 (June 25, 2019), https://science.house.gov/imo/media/doc/Ziriax%20Testimony.pdf.
2

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a federal court case where the Board Members and the Secretary all remained as defendants without objection. Doc. 31 at 7 (citing Atherton v. Ward, 22 F. Supp. 2d 1265, 1270 (W.D. Okla. 1998)). But the Secretary was responsible for the relief in that case, and the fact that the Board Members did not raise their sovereign immunity and related defenses there does not preclude those defenses now.4 Thus, neither authority rebuts the extensive citations showing the Secretary’s exclusive role over the statutes at issue.
Plaintiffs also raise the idea that they need an order delaying state and county board members from certifying results. This argument is peculiar for two reasons. First, none of Plaintiffs’ allegations or claims relate to the Board Members’ deadline. Second, delaying the state Board Members would be pointless because they cannot certify the election results without county results. See OKLA. STAT. tit. 26, § 7-136 (“shall use such county returns”). State Board Members also do not control how those results are sent to them; the Secretary does. See 33 Ok Reg 1417 (citing OKLA. STAT. tit. 26, § 7-136 (“as prescribed by the Secretary”)). Thus, an injunction issued to the Secretary would provide Plaintiffs the voting extension they desire because the delay in county returns would prevent any action by the state Board Members. If Plaintiffs (baselessly) believe that county board members will flout the Secretary’s instructions issued pursuant to an order from this Court, then Plaintiffs need to add those county board members as parties. If Plaintiffs (baselessly) believe the state Board Members will certify a zero vote election even though state law tells them to use county returns, then Plaintiffs need to add that allegation, but it is nowhere in their Complaint. Until then, they have alleged no enforcement action by the Board Members that would waive sovereign immunity or otherwise allow retaining them as parties.
4 Plaintiffs question whether this argument is proceeding under Ex Parte Young or standing. Doc. 31 at 3. The Board Members noted four doctrines at issue: Ex Parte Young, standing, failure to state a claim, and misjoinder. Doc. 24 at 1-2. The general distinctions between these doctrines do not matter for this particular motion because they are all controlled by the same question: Do the Board Members enforce the laws at issue? The answer is no.
3

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Ultimately, Plaintiffs’ opposition brief confirms what Defendants suspected at the outset: “Plaintiffs’ decision to sue members of the election board may just be a misunderstanding.” Doc. 24 at 2. There is no reason to double-down on this misunderstanding of state law, further confuse the public and future litigation, and keep the Board Members in this litigation when the Secretary is already a proper party to this suit. Accordingly, this court should dismiss the Board Members from this case. II. Venue is improper in this District.
Plaintiffs advance no arguments or authorities on why a personal residence would be relevant to an official capacity suit. See Doc. 31 at 11. Plaintiffs therefore implicitly concede, in line with Wright & Miller, that Defendants’ personal residence cannot supply venue in this suit. See Doc. 24 at 11. Because Plaintiffs’ opposition only advances venue theories that apply equally to the Secretary and the Board Members—regarding official (rather than personal) residence—the proper parties issue does not affect the venue analysis, and this reply will address venue without further distinction between Defendants.
A. Defendants do not officially reside in the Northern District, so venue is improper here under § 1391(b)(1).
Plaintiffs’ reading of the residence venue statute is oddly detached from the statute itself. The venue statute defines residency as “the judicial district in which that person is domiciled.” 28 U.S.C. § 1391(c)(1) (emphasis added). The text is clear that only one district can be the relevant residence; residency cannot lie everywhere in a state with three separate districts. Contra Doc. 31 at 10. Thus the text of the statute, along with Wright & Miller, dictates that courts look to a single official residence for official capacity suits. Doc. 24 at 11. Because Plaintiffs’ multiple-districts theory of official residence does not fit the statute, they instead offer some policy arguments gleaned from case law. But all of their citations predate 2011,5 when Congress added this definition of residence to the venue statute Compare
5 Even under a pre-2011 venue statute, Plaintiffs’ Michigan case law is of little value here because Michigan state officials maintain 173 offices throughout the state, with at least one in every county—
4

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Federal Courts Jurisdiction and Venue Clarification Act of 2011, P.L. 112-63, 125 Stat 758, 764 (Dec. 7, 2011); with Doc. 31 at 10-11 (discussing cases from 1990, 1980, 1976, and 2004). This court should follow the text of the statute over Plaintiffs’ outdated policy arguments and conclude that Defendants only officially reside in one judicial district: the Western District, where their office is located.
B. Defendants’ events or omissions occurred in the Western District, so venue is improper here under § 1391(b)(2).
To start, Plaintiffs are simply wrong when arguing that “venue is a privilege that belongs to Plaintiffs as well.” Doc. 31 at 18. The only purpose of venue is giving Defendants the right to alter Plaintiffs’ choice of forum. See Doc. 24 at 5-6. After all, a plaintiff initially selects a forum to advance their interests by choosing where to sue; the venue rules, on the other hand, tell a court that has subject matter jurisdiction whether it is a proper forum to protect defendants’ interests. The venue statute (28 U.S.C. § 1391) is not a pure convenience balancing test like 28 U.S.C. § 1404(a). Rather, it is a statutory definition to protect defendants that applies regardless of whether the two forums at issue are two hours apart or twenty minutes.6 Plaintiffs’ arguments rely on transposing Plaintiffs’ interests in convenience reflected in § 1404(a) into a venue analysis under § 1391. This court should not make that mistake.
Based on this error, Plaintiffs confuse the concept of where Defendants acted with where Plaintiffs suffered injury, misreading Employers Mutual. There, the Tenth Circuit first “examine[d] the nature of the plaintiff’s claims and the acts or omissions underlying those claims.” Employers Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1166 (10th Cir. 2010). The insurance policy at issue was negotiated and signed in Utah, underwritten in Colorado, and insured a project in Wyoming. See id. It then examined “whether substantial ‘events material to those claims occurred’ in the forum district.” Id. (quoting Gulf
a structure not present in Oklahoma or other states. See Fla. Hometown Democracy, Inc. v. Browning, No. 08-CV-80636-CIV, 2008 WL 3540607, at *3 (S.D. Fla. Aug. 12, 2008) (distinguishing Bay County). 6 See Transp. Funding, LLC v. HVH Transp., Inc., No. 2:17CV2106, 2017 WL 4223126, at *4 & n.58 (D. Kan. Sept. 22, 2017) (Kansas City, KS is improper venue for case concerning Kansas City, MO).
5

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Ins. Co. v. Glasbrenner, 417 F.3d 353, 357 (2d Cir. 2005)). While the defendant argued that only Utah was a proper venue, the Tenth Circuit held that Wyoming was a proper venue as well because defendant had performed the negligent work at issue in Wyoming. See id. The plaintiff, meanwhile, was facing a loss in Utah or Colorado, not where it filed suit in Wyoming. See id.7 Plaintiffs try to glide over these facts by interpreting the relevant events to “includ[e] where the loss or harm occurred,” Doc. 31 at 13, omitting that the Tenth Circuit only found venue proper where the defendant acted. Thus, the location of plaintiff’s harm was not relevant to the Tenth Circuit’s decision. Employers Mut., 618 F.3d at 1166 n.11.
Accordingly, the only decision from the Tenth Circuit interpreting whether § 1391(b)(2) applies to plaintiff’s harm as well as defendant’s activities is Goff, which held it applies only to defendant’s activities. Plaintiffs try to dismiss the relevant language from Goff as dicta by questioning whether sufficient contacts existed between the defendant and the forum—conflating venue with personal jurisdiction. See Doc. 31 at 17. They omit that Goff noted the plaintiff committed relevant activities in Oklahoma and that venue was improper because the defendants committed all of their acts in Arkansas. Goff v. Hackett Stone Co., 185 F.3d 874, 1999 WL 397409, at *1 (10th Cir. 1999). Reading this as a minimum contacts test rather than an application of the explicitly-cited Eighth Circuit venue test is just misreading Goff. See id.8 Most district courts in this circuit agree—which is why Defendants could easily find a string of citations in support of their position, Doc. 24 at 7-8, while Plaintiffs can only come up with two decisions over 21 years in the circuit, Doc. 31 at 17 n.20. Goff is the majority rule in this Circuit.
Plaintiffs’ attempt to recast the Goff rule as a minority rule among Circuits is similarly incorrect. Doc. 31 at 16. First, both the district courts in the Second Circuit and the treatises recognize that the
7 This is the reverse of the First Circuit case discussed in the motion: there, plaintiff was suing where his loss occurred, whereas in Employees Mutual the insured as defendant is being sued where his loss occurred. See Uffner v. La Reunion Francaise, S.A., 244 F.3d 38, 42 (1st Cir. 2001). 8 Hence, there is no point in discussing the sufficiency of the contacts that Plaintiffs raise in a footnote because personal jurisdiction is not in dispute. See Doc. 31 at 17 & n.20.
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Second Circuit adopted the Eighth and Eleventh Circuits’ rule in Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408, 432 (2d Cir. 2005). See, e.g., Ne. Landscape & Masonry Assocs., Inc. v. State of Connecticut Dep’t of Labor, No. 14-CV-9104 (KMK), 2015 WL 8492755, at *4 (S.D.N.Y. Dec. 10, 2015) ([T]he Second Circuit has made clear that the venue analysis must focus on where the defendant’s acts or omissions occurred.”) (internal quotation marks omitted); WRIGHT & MILLER § 3806 n.8. Plaintiffs’ attempt to re-read the Second Circuit’s view based on earlier precedent cited in Daniel is simply disagreement with the Second Circuit’s view of its own cases. Second, the Sixth Circuit has not taken a view on the split. Defendants offered a “cf.” cite merely to note that the Sixth Circuit has not condemned looking at plaintiffs’ activities, but it has also never found venue based on those activities. See Doc. 24 at 7 n.1. Third, the Fourth Circuit case involves litigation between a lawyer and a client over work done for the client’s litigation in Virginia. See Mitrano v. Hawes, 377 F.3d 402, 404 (4th Cir. 2004). The lawyer was acting as the client’s agent in Virginia, see id., so it would have been odd to conclude that a defendant did not act where his agent acted. Because venue in Virginia would be perfectly consistent with the rule in Goff, that panel’s positive citation to the First Circuit’s analysis is dicta at best. Thus, the holdings in the circuits still favor the Goff rule: the Second, Eighth, and Eleventh Circuits are in the majority versus the First and Third Circuits.
Aside from Goff, Plaintiffs also offer a host of erroneous arguments. First, they give a misguided defense of conflating venue and personal jurisdiction, pointing to Congress’s provision for using the minimum contacts test when there is no other district where venue is proper, but failing to explain why that provision in 28 U.S.C. § 1391(b)(3) would change the meaning of § 1391(b)(2). Doc. 31 at 18.9 Congress’s language including personal jurisdiction in venue analysis under § 1391(b)(3) indicates that it intentionally excluded personal jurisdiction from venue analysis under § 1391(b)(2). See Babb v. Wilkie,
9 The Wright & Miller treatise goes on to note that “personal jurisdiction and venue protect different interests” and “[p]ersonal jurisdiction and venue simply are not the same thing.” CHARLES A. WRIGHT AND ARTHUR R. MILLER, ET AL., 14D FED. PRAC. & PROC. § 3806.
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140 S. Ct. 1168, 1177 (2020) (quoting Russello v. United States, 464 U.S. 16, 23 (1983)) (courts presume that inclusion of particular language in one subsection means omission elsewhere was intentional).
Second, Plaintiffs note that some states have only one district, which prevents venue transfers within those states, but fail to explain why that is relevant in states like Oklahoma that have multiple districts. Doc. 31 at 19. Congress’s creation of multiple federal districts within one state is not meaningless; it has practical consequences not to be ignored.
Third, Plaintiffs make the odd assertion that venue protects Defendants from being sued in other states. Id. But Plaintiffs’ own strained interpretation of venue would offer no protection even for suits outside of Oklahoma: If Defendants sent enough absentee ballots to Kansas to be subject to personal jurisdiction there, the “risks of finding witnesses, notaries, or copies of photo identification” that Plaintiffs complain of, id. at 17 n.20, would occur in Kansas, making venue over this suit challenging Oklahoma laws proper in Kansas under Plaintiffs’ theory.
Fourth, Plaintiffs argue that § 1391(b)(2) must provide another venue beyond the residence noted in § 1391(b)(1). There is no basis for that argument in the text. “[T]hese options are of equal dignity.” WRIGHT & MILLER § 3804. Only § 1391(b)(3) specifies that it provides additional venue beyond the other options. The better explanation of the interaction between § 1391(b)(1) & (b)(2) is the one present in case law: that state election officials who act outside their official residence are subject to venue in either location, Bay Cty. Democratic Party v. Land, 340 F. Supp. 2d 802, 808 (E.D. Mich. 2004) (noting that state officials in Michigan maintained branch offices in every county), while state election officials who act only at their official residence are only subject to venue there, Fla. Hometown Democracy, Inc. v. Browning, No. 08-CV-80636-CIV, 2008 WL 3540607, at *3 (S.D. Fla. Aug. 12, 2008) (noting that supervision of county officials occurred at the state capitol). The two provisions allow for different fact patterns; they don’t guarantee two venues in every case.
8

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Indeed, Plaintiffs’ refusal to discuss the Browning case despite the extensive discussion in Defendants’ motion is telling. As that court observed, an election official’s statewide obligations do not subject him to venue everywhere a county official acts on his instructions. See id. at *3. Instead, he is only subject to venue where he “acted in conjunction” with a county official, either directly or through “offices or employees outside of the state capital.” Id. at *2-*3. Thus, the Florida Secretary of State’s responsibility to supervise county officials on validating petition signatures did not subject him to venue in every county. See id. After failing to address Browning, Plaintiffs here commit the same error as the plaintiffs there, relying heavily on the same Michigan case on venue without acknowledging Michigan’s unique structure of having state election offices in every county. See id. at *3. Because Oklahoma, like Florida, uses a combination of state and county officials rather than having state election offices in every county, this court should follow the Florida court’s reasoning in applying venue to election officials.
Fifth, Plaintiffs offer the meaningless observation that some state officials have failed to challenge venue in these sorts of cases. Doc. 31 at 12, 14-15. But Defendants here have generally asserted their venue privilege, notwithstanding the practice of election officials in other states. See, e.g., Gentges, 319 P.3d at 675 (noting that the Oklahoma Supreme Court ordered a transfer of venue from Tulsa to Oklahoma City at the agency’s request). Defendants are not required to waive their venue rights just because other officials have done so. Indeed, most of Plaintiffs’ citations do not discuss venue at all, with the exception of one where the court noted a venue challenge and declined to rule on it because Plaintiffs lacked standing anyway. See Bruni v. Hughs, No. 5:20CV35, 2020 WL 3452229, at *3 n.2, *7 (S.D. Tex. June 24, 2020). Hardly the ringing endorsement of statewide venue that Plaintiffs portray.
Ultimately, Plaintiffs have not met their burden of proving venue. If this court follows the Goff rule, that conclusion is clear: Plaintiffs advance no argument that venue is proper under Goff, instead
9

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asking this court to reject the rule. See Doc. 31 at 16-17.10 Even if this Court rejects Goff, adopting the minority rule focusing on effects on plaintiffs—a rule never once embraced by the Tenth Circuit— Plaintiffs’ Complaint offers no allegations of effects on Plaintiffs in the Northern District to justify venue here. They simply assume that any effects on them somewhere in Oklahoma allow them to sue in any venue in the state. Plaintiffs’ response brief is full of numerous allegations of how “Plaintiffs’ voters” will be affected in Tulsa, e.g. Doc. 31 at 15-17, but they cite nothing for these propositions. Completely absent from their Complaint is any allegation particular to Tulsa or the Northern District, nor is this suit brought by any Northern District voters, nor do they even allege in their Complaint that Plaintiff organizations are headquartered in the Northern District or have members who live in the District. All of this appears for the first time in their response to a motion to dismiss. Citation-less suggestions made for the first time in a brief do not meet their burden. See Doc. 24 at 4. In any event, this Court need not opine on those proof deficiencies, as it should follow the majority rule among the circuits and among district courts in this circuit, apply Goff, and transfer this case to the Western District.
CONCLUSION For these reasons, Defendants respectfully request that this court (1) dismiss the Board Members from this case and (2) dismiss this case for improper venue or transfer it to the Western District.
10 The farthest Plaintiffs go is in their arguments concerning § 1391(b)(1) (never referenced in their arguments regarding (b)(2) and Goff), such as pointing to the statewide duty to cause trainings to be held in counties. Doc. 31 at 11-12. But these purported facts justifying venue were raised for the first time in their opposition brief, not in their Complaint. This cannot meet their burden to prove venue. In any event, their brand-new allegations are the same sort of arguments rejected in Browning and have further legal defects, such as misrepresenting the statutes they cite, that Defendants lack space to clarify fully. Compare Doc. 31 at 11 (claiming the “Secretary must hold a training program ‘in each county’”) with Okla. Stat. tit. 26, § 3-111 (stating that Secretary “shall cause to be conducted a training program in each county”) and O.A.C. § 230:10-5-12 (county secretaries train inspectors, judges, clerks, and other precinct officials in each county). Moreover, such facts cannot meet the “substantial” requirement of § 1391(b)(2) if they were so insubstantial that Plaintiffs did not bother pleading them in the Complaint.
10

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Respectfully Submitted, s/ Mithun Mansinghani
MITHUN MANSINGHANI, OBA #32453 Solicitor General
BRYAN CLEVELAND, OBA #33680 Assistant Solicitor General
THOMAS SCHNEIDER, OBA #33047 Assistant Attorney General
OFFICE OF ATTORNEY GENERAL STATE OF OKLAHOMA 313 N.E. 21st Street Oklahoma City, OK 73105 (405) 521-3921 Mithun.Mansinghani@oag.ok.gov Bryan.Cleveland@oag.ok.gov Thomas.Schneider@oag.ok.gov Counsel for Defendants
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CERTIFICATE OF SERVICE I hereby certify that on July 24, 2020, I electronically transmitted the attached document to the Clerk of Court using the Electronic Case Filing System, which will transmit a Notice of Electronic Filing and a copy of the document to all counsel who have entered an appearance in this case.
s/ Mithun Mansinghani MITHUN MANSINGHANI

 
 Case 4:20-cv-00211-JED-JFJ Document 33 Filed in USDC ND/OK on 08/04/20 Page 1 of 5

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OKLAHOMA

DCCC, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

PAUL ZIRIAX, in his official capacity )

as SECRETARY OF THE

)

OKLAHOMA STATE ELECTION )

BOARD, et al.,

)

)

Defendants.

)

Case No. 20-CV-211-JED-JFJ

ORDER The plaintiffs bring this action against the Secretary of the Oklahoma State Election Board and the Chair, Vice Chair, and Members of the Board. All of the defendants are sued in their official capacities. The plaintiffs challenge the constitutionality of election laws that they claim are unduly burdensome, and they seek injunctive and declaratory relief in advance of the November, 2020 elections. In short, they contest certain restrictions imposed upon absentee voting under Oklahoma law: notarization, witnessing, photo identification, postage, timing, and the criminalization of persons or entities (including organizations like plaintiffs) who request or receive absentee ballots of their constituents. (See Doc. 18 at 5, ¶¶ 6-7).1

1 All references to Documents from the case docket are to the page numbers at the top of the filed document as docketed in CM/ECF, rather than to internal page numbers.

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According to the plaintiffs, these restrictions are particularly burdensome and onerous in light of the COVID-19 pandemic, which presents a heightened risk of infection to Oklahomans who vote in-person. As a result of those risks, more Oklahomans are expected to avail themselves of voting by absentee ballot, which is available to all Oklahomans. The problem, according to the plaintiffs, is that certain absentee ballot laws require voters wishing to vote by absentee ballot to expend money and expose themselves to a risk of COVID-19 infection. For example, plaintiffs alleges that most Oklahomans wanting to vote by absentee ballot to avoid the risks of in-person voting will still be required to risk COVID-19 infection to obtain a notarization of their absentee ballots, to copy their identification, or to purchase stamps. The plaintiffs also claim that the restrictions on their collection of ballots or other assistance offered to constituents is an unconstitutional restriction.
The defendants move to dismiss for improper venue or, in the alternative, to transfer this case to the Western District of Oklahoma where the Election Board presides. (Doc. 24). According to the defendants, the only proper defendant is Paul Ziriax, who is the Secretary of the Oklahoma State Election Board and resides in the Western District of Oklahoma. They maintain that Secretary Ziriax is the only defendant who has responsibility for the absentee ballot issues challenged by the plaintiffs. (See id. at 2-3).
The plaintiffs respond that the members of the Election Board are proper defendants because they have supervisory authority over the county election boards, including the Tulsa County Election Board, which is the largest in the State. (Doc. 31 at 13-14). As a result, plaintiffs also contend that venue is proper because substantial events material to
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the plaintiffs’ claims have occurred and will occur in the Northern District of Oklahoma, because numerous of the plaintiffs’ constituents and members who reside in this District are burdened by the challenged restrictions on absentee voting. (Id. at 11).
Upon consideration of the factual and legal arguments and authorities provided by the plaintiffs and the defendants (see Doc. 24, 31, 32) and the Amended Complaint (Doc. 18), the Court determines that the defendant Board Members are properly-named defendants in this action. While the Board Member defendants dispute that they have responsibilities relating to the absentee ballot issues challenged in this case, the plaintiffs have presented sufficient information and authority to support maintenance of this suit against both the Secretary of the Election Board and the Election Board Members. (See Doc. 31 at 13-18).
A civil action may be brought in a judicial district “in which any defendant resides, if all defendants are residents of the State in which the district is located,” or “in which a substantial part of the events or omissions giving rise to the claim occurred. . . .” 28 U.S.C. § 1391(b). Venue can be proper in multiple districts. ConocoPhillips Co. v. Jump Oil Co., 948 F. Supp. 2d 1272, 1282 (N.D. Okla. 2013) (“Section 1391(b)(2) does not require that a court determine which judicial district has the most substantial connection to the case but, instead, venue may be proper in multiple districts as long as a substantial part of the events or omissions giving rise to the case occurred in those districts.”). Venue is thus proper under 28 U.S.C. § 1391(b)(1), because one of the defendants resides in this District and all of the defendants reside in the State, and under § 1391(b)(2) because a substantial
3

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part of the events presented by the plaintiffs’ claims will occur in this District. The request to dismiss or transfer for improper venue is thus denied.
In the alternative, the defendants request that this case be transferred to the United States District Court for the Western District of Oklahoma pursuant to 28 U.S.C. § 1404(a). (Doc. 24 at 15-16). Under § 1404(a), the district court is granted discretion to decide the proper venue. See, e.g., Palace Exploration Co. v. Petroleum Dev. Co., 316 F.3d 1110, 1121 (10th Cir. 2003). In considering a motion to transfer, courts should weigh several factors:
the plaintiff's choice of forum; the accessibility of witnesses and other sources of proof, including the availability of compulsory process to insure attendance of witnesses; the cost of making the necessary proof; questions as to the enforceability of a judgment if one is obtained; relative advantages and obstacles to a fair trial; difficulties that may arise from congested dockets; the possibility of the existence of questions arising in the area of conflict of laws; the advantage of having a local court determine questions of local law; and [ ] all other considerations of a practical nature that make a trial easy, expeditious and economical. Emp’rs Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1167 (10th Cir. 2010) (citing Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1516 (10th Cir. 1991)). “To demonstrate inconvenience, the movant must . . . identify the witnesses[,] . . . indicate the quality or materiality of their testimony[,] . . . and . . . show that . . . the use of compulsory process would be necessary.” Id. Further, the “party moving to transfer a case pursuant to § 1404(a) bears the burden of establishing that the existing forum is inconvenient.” Scheidt v. Klein, 956 F.2d 963, 965 (10th Cir. 1992). Considering the parties’ briefing in light of the Bartile Roofs factors, the defendants have not established
4

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that this forum is inconvenient to an extent that would warrant discretionary transfer under § 1404(a).
Accordingly, the defendants’ motion to dismiss or transfer venue (Doc. 24) is denied.
SO ORDERED this 4th day of August, 2020.
5

 
 Case 4:20-cv-00211-JED-JFJ Document 47 Filed in USDC ND/OK on 08/19/20 Page 1 of 35
__________________________________________________________________
No. 20-CV-211-JED-JFJ __________________________________________________________________
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA
__________________________________________________________________
DCCC and OKLAHOMA DEMOCRATIC PARTY, Plaintiffs, vs.
PAUL ZIRIAX, in his official capacity as the Secretary of the Oklahoma State Election Board; TOM MONTGOMERY, in his official capacity as Chairman of the Oklahoma State Election Board; DR. TIM MAULDIN, in his official capacity as Vice-Chairman of the Oklahoma State
Election Board; HEATHER MAHIEU CLINE, in her official capacity as a member of the Oklahoma State Election Board; JERRY BUCHANAN, in his official capacity as an alternate member of the Oklahoma State Election Board; and DEBI THOMPSON, in her official capacity
as an alternate member of the Oklahoma State Election Board, Defendants.
__________________________________________________________________
PLAINTIFFS’ MOTION AND MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
__________________________________________________________________
Frank W. Frasier, OK# 17864 FRASIER, FRASIER & HICKMAN, LLP 1700 Southwest Boulevard Tulsa, OK 74107 Telephone: 918.584.4724 Facsimile: 918.583.5637 FFrasier@frasierlaw.com
August 19, 2020

Case 4:20-cv-00211-JED-JFJ Document 47 Filed in USDC ND/OK on 08/19/20 Page 2 of 35
TABLE OF CONTENTS
INTRODUCTION AND SUMMARY OF THE ARGUMENT .................................................... 1 BACKGROUND ............................................................................................................................ 3
I. The pandemic threatens the November election. ................................................................. 3 II. Oklahoma’s vote-by-mail system, as recently amended, will disenfranchise thousands of
voters in November. ............................................................................................................ 5 A. Voting in Oklahoma before COVID-19........................................................................... 5 B. The Oklahoma Supreme Court invalidates the Notarization Requirement, and the State
immediately responds by imposing burdensome new restrictions. ................................. 7 C. Oklahoma’s June 30th election ........................................................................................ 9 STANDARD OF DECISION ....................................................................................................... 10 ARGUMENT ................................................................................................................................ 10 I. Plaintiffs are likely to succeed on the merits. .................................................................... 10 A. The Amended Notarization Requirements impose severe burdens on voters................ 10 B. The Election Day Receipt Deadline is unconstitutional................................................. 15 C. The Absentee Assistance Criminalization provisions are unconstitutional. .................. 18 D. The Postage Requirement is unconstitutional. ............................................................... 23 II. An injunction is required to avoid irreparable harm ......................................................... 24 CONCLUSION............................................................................................................................. 25
ii

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TABLE OF AUTHORITIES
CASES
Am. Ass’n of People with Disabilities v. Herrera, 690 F. Supp. 2d 1183 (D.N.M. 2010) ......................................................................................23
Anderson v. Celebrezze, 460 U.S. 780 (1983).................................................................................................................15
Burdick v. Takushi, 504 U.S. 428 (1992)...........................................................................................................10, 15
Common Cause Ind. v. Individual Members of Ind. Election Comm’n, 800 F.3d 913 (7th Cir. 2015) ...................................................................................................14
Common Cause R.I. v. Gorbea, No. 20-1753, 2020 WL 4579367 (1st Cir. Aug. 7, 2020), stay denied sub nom. RNC v. Common Cause, No. 20A28, 2020 WL 4680151 (Aug. 13, 2020) ...............3, 4, 11, 13
Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008).................................................................................................................11
Cunningham v. Adams, 808 F.2d 815 (11th Cir. 1987) .................................................................................................25
Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312 (11th Cir. 2019) .........................................................................................10, 24
DNC v. Bostelmann, Civ. No. 20-cv-249-wmc, 2020 WL 1638374, at *17 (W.D. Wis. Apr. 2, 2020), stayed in part sub nom. DNC v. RNC, Nos. 20-1538 & 20-1546, 2020 WL 3619499 (7th Cir. Apr. 3, 2020), stayed in part, 140 S. Ct. 1205 (2020).........................15
DNC v. Bostelmann, Civ. No. 20-cv-249-wmc, 2020 WL 1638374 (W.D. Wis. Apr. 2, 2020), stayed in part sub nom. DNC v. RNC, Nos. 20-1538 & 20-1546, 2020 WL 3619499 (7th Cir. Apr. 3, 2020) ........................................................................................15, 25
DSCC v. Simon, No. 62-CV-20-585, 2020 WL 4519785 (Minn. Dist. Ct. Aug. 3, 2020) .................................23
Fla. Democratic Party v. Detzner, No. 4:16cv607-MW/CAS, 2016 WL 6090943 (N.D. Fla. Oct. 16, 2016)...............................13
Fla. State Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153 (11th Cir. 2008) ...............................................................................................18
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Frank v. Walker, 819 F.3d 384 (7th Cir. 2016) ...................................................................................................12
Harman v. Forssenius, 380 U.S. 528 (1965).................................................................................................................24
Harper v. Va. State Bd. of Elections, 383 U.S. 663 (1966).................................................................................................................24
Jones v. Governor, 950 F.3d 795 (11th Cir. 2020) .................................................................................................24
League of Women Voters of Fla., Inc. v. Detzner, 314 F. Supp. 3d 1205 (N.D. Fla. 2018)....................................................................................19
League of Women Voters of Okla. v. Ziriax, 463 P.3d 524 (Okla. 2020) .........................................................................................1, 7, 11, 14
League of Women Voters v. Hargett, 400 F. Supp. 3d 706 (M.D. Tenn. 2019)..................................................................................23
League of Women Voters of Va. v. Va. State Bd. of Elections, No. 6:20-CV-00024, 2020 WL 2158249 (W.D. Va. May 5, 2020).........................................11
League of Women Voters of N.C. v. North Carolina, 769 F.3d 224 (4th Cir. 2014) ...13, 22, 24, 25
Libertarian Party of Ill. v. Pritzker, No. 20-cv-2112, 2020 WL 1951687 (N.D. Ill. Apr. 23, 2020), stay denied pending appeal, No. 20-1961 (7th Cir. June 21, 2020) ...........................................................11
Luft v. Evers, 963 F.3d 665 (7th Cir. 2020) ...................................................................................................12
M.L.B. v. S.L.B., 519 U.S. 102 (1996).................................................................................................................24
Martin v. Kemp, 341 F. Supp. 3d 1326 (N.D. Ga. 2018), appeal dismissed sub nom. Martin v. Sec’y of State of Ga., No. 18-14503-GG, 2018 WL 7139247 (11th Cir. Dec. 11, 2018) ............................................................................................................................18, 25
McDonald v. Wise, 769 F.3d 1202 (10th Cir. 2014) ...............................................................................................18
Meyer v. Grant, 486 U.S. 414 (1988).................................................................................................................22
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N.M. Dep’t of Game & Fish v. U.S. Dep’t of the Interior, 854 F.3d 1236 (10th Cir. 2017) ...............................................................................................10
Ne. Ohio Coal. for Homeless v. Husted, 696 F.3d 580 (6th Cir. 2012) ...................................................................................................17
Norman v. Reed, 502 U.S. 279 (1992)...........................................................................................................10, 21
Obama for Am. v. Husted, 697 F.3d 423 (6th Cir. 2012) .............................................................................................24, 25
Paher v. Cegavske, No. 3:20-cv-00243-MMD-WGC, 2020 WL 2089813 (D. Nev. Apr. 30, 2020) .....................13
People First of Ala. v. Merrill, No. 2:20-cv-000619-AKK, 2020 WL 3207824 (N.D. Ala. June 15, 2020) ............................14
People First of Ala. v. Sec’y of State of Ala., No. 20-12184, 2020 WL 3478093 (11th Cir. Jun. 25, 2020) (Rosenbaum and Pryor, JJ., concurring), stayed, No. 19A1063, 2020 WL 3604049 (U.S. July 2, 2020) ........................................................................................................................................11
Raetzel v. Parks/Bellemont Absentee Election Bd., 762 F. Supp. 1354 (D. Ariz. 1990) ..........................................................................................18
Reynolds v. Sims, 377 U.S. 533 (1964).................................................................................................................15
Saucedo v. Gardner, 335 F. Supp. 3d 202 (D.N.H. 2018).........................................................................................18
Taylor v. Louisiana, 419 U.S. 522 (1975)...........................................................................................................24, 25
Thakker v. Doll, No. 1:20-cv-480, 2020 WL 1671563 (M.D. Pa. Mar. 31, 2020) .............................................24
Thomas v. Andino, Nos. 3:20-cv-01552-JMC & 3:20-cv-01730-JMC, 2020 WL 2617329 (D.S.C. May 25, 2020) ..........................................................................................................................11
Yes on Term Limits, Inc. v. Savage, 550 F.3d 1023 (10th Cir. 2008) ...............................................................................................22
STATUTES
Ala. Code § 17-9-30.......................................................................................................................14
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Okla. Stat. tit. 26, § 16-102 ............................................................................................................14 Okla. Stat. tit. 26, § 16-102.2 .........................................................................................................14 Okla. Stat. tit. 26, § 16-103 ............................................................................................................14 Okla. Stat. tit. 26, § 16-105 ............................................................................................................14 Okla. Stat. tit. 26, § 16-113 ............................................................................................................14 Okla. Stat. tit. 12, § 426 ...................................................................................................................7 Okla. Stat. tit. 26, § 7-114 ................................................................................................................7 Okla. Stat. tit. 26 § 7-116.1 ............................................................................................................17 Okla Stat. tit. 26, § 7-136 ...............................................................................................................17 Okla. Stat. tit. 26, § 14-101.1 .............................................................................................19, 20, 22 Okla. Stat. tit. 26, § 14-104 ..............................................................................................................6 Okla. Stat. tit. 26, § 14-108 ..............................................................................................5, 6, 19, 20 Okla. Stat. tit. 26, § 14-110.1 .....................................................................................................7, 20 Okla. Stat. tit. 26 § 14-113.2 ............................................................................................................5 Okla. Stat. tit. 26 § 14-115.1 ..........................................................................................................20 Okla. Stat. tit. 26, § 16-102 ............................................................................................................22 Okla. Stat. tit. 26, § 16-102.2 .........................................................................................................22 Okla. Stat. tit. 26, § 16-104.1 .............................................................................................19, 20, 22 Okla. Stat. tit. 26, § 16-105 ............................................................................................................22 Okla. Stat. tit. 26, § 16-113 ............................................................................................................22 Okla. Stat. tit. 26, § 16-126 ................................................................................................19, 20, 22 Okla. Stat. tit. 68, § 221.1 ..............................................................................................................16 OTHER AUTHORITIES U.S. Const. amend. XXIV, § 1 ......................................................................................................24 S.B. 1779....................................................................................................................1, 2, 3, 8, 9, 19
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Case 4:20-cv-00211-JED-JFJ Document 47 Filed in USDC ND/OK on 08/19/20 Page 7 of 35 S.B. 210..................................................................................................................................7, 8, 20 Okla. Admin. Code § 230:30-11-1.1 .............................................................................................19 “Voting Outside the Polling Place: Absentee, All Mail and other Voting at Home Options,” NCSL, https://www.ncsl.org/research/elections-andcampaigns/absentee-and early voting.aspx ..............................................................................14 Election Fraud Cases, The Heritage Found., https://www.heritage.org/voterfraud/search?state=OK ...........................................................14 Nat’l Conference of State Legislatures, VOPP: Table 11: Receipt and Postmark Deadlines for Absentee Ballots, (June 15, 2020), https://www.ncsl.org/research/elections-and-campaigns/vopp-table-11-receiptand-postmark-deadlines-for-absentee-ballots.aspx ..................................................................16
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Andrews ¶ ___ Andrews Dep. CARES Act DNC Habrock ¶ ___ Meredith ¶ ___ McAfee ¶ ___ Newman ¶ ___ RNC Stroman ¶ ___ Troisi ¶ ___ USPS Ziriax Dep.

TABLE OF ABBREVIATIONS
Declaration of Alicia Andrews (Ex. 10)
Deposition of Alicia Andrews (Ex. 11)
H.R. 748, CARES Act, Public Law 116-136
Democratic National Commitee
Declaration of Lani Habrock (Ex. 5)
Declaration of Dr. Marc Meredith (Ex. 2)
Declaration of Nicole McAfee (Ex. 7)
Declaration of Jacqui Newman (Ex. 9)
Republican National Committee
Declaration of Ronald Stroman (Ex. 3)
Declaration of Dr. Catherine Troisi (Ex. 1)
United States Postal Service
Deposition of Paul Ziriax (Ex. 4)

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INTRODUCTION AND SUMMARY OF THE ARGUMENT When the pandemic began, Oklahoma was one of only three states that required absentee ballots be notarized. On May 4, as the State surpassed 4,000 COVID-19 cases, the Oklahoma Supreme Court struck down the notary requirement in favor of a simple statement signed under penalty of perjury. See League of Women Voters of Okla. v. Ziriax (“LWV”), 463 P.3d 524 (Okla. 2020). The relief afforded by the Court was short-lived. Three days later, Governor Stitt signed S.B. 210, which reinstated the notarization requirement subject to two limited exceptions applicable only during any COVID-19 State of Emergency: instead of notarization, a voter may (1) attach a copy of a photo ID or, (2) if “physically incapacitated” due to actively having COVID19, or if at high risk for contracting the disease and subject to a stay at home order, the voter may have two witnesses sign their ballot. The Legislature’s revisions continued. On May 21, the same day Oklahoma surpassed 300 deaths while reporting 5,680 positive virus cases, S.B. 1779 was signed into law. That bill makes it a crime―often a felony―simply to assist another voter in obtaining or returning an absentee ballot at that voter’s request. Now it suddenly is a crime for a voter to return his spouse’s sealed ballot when he goes to vote in person, and a friendly neighbor commits a crime if she helps an elderly shut-in by returning his ballot. In addition to these new restrictions, Oklahoma voters still had to contend with other impediments to their ability to successfully vote absentee, including the State’s rejection as void any ballot received after Election Day, even if the voter is not at fault for the delayed return, as well as the State’s refusal to prepay postage on ballot-return envelopes. The chilling effects of these laws became clear in the June 30th election. The absenteeballot return attrition rate—which was already historically higher in Oklahoma than in neighboring states—worsened, as nearly 30% of ballots mailed to voters were never returned. Many that were returned were voided because they lacked the required witness signatures or notary stamps. In

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total, nearly 4,500 voters were disenfranchised by absentee ballot rejections alone, and many more were forced to risk exposure to COVID-19 to vote in person because they had no real alternative. Just two weeks later, Oklahoma set a single-day record for coronavirus infections. As of this filing, the State has recorded nearly 50,000 positive cases and 682 Oklahomans have died.
With the November election quickly approaching, the voting rights and safety of Oklahoma citizens face threats that grow worse by the day. Plaintiffs ask this Court to enjoin the following:
• The requirement that absentee ballots be notarized, include a photo ID copy, or be witnessed by two people (collectively referred to as the “Amended Notarization Requirements”), which force voters to interact with others when absentee voting, in contravention of sound medical guidance and responsible election administration.
• Rejecting ballots that arrive after 7 p.m. on Election Day (the “Election Day Receipt Deadline”), which will disenfranchise thousands of voters.
• Criminalizing voter assistance (the “Voter Assistance Criminalization provisions”), which compounds the problems in obtaining and casting ballots that will be counted.
• The State’s failure to prepay postage (the “Postage Requirement”) for absentee voters. Collectively, these restrictions burden all Oklahoma voters by making absentee voting more burdensome (and sometimes inaccessible) for thousands even under normal circumstances. But during the pandemic—when voting by mail has become the “safety net”―these provisions are wholly unjustifiable and will disenfranchise many thousands more Oklahoma voters. Under these circumstances, Plaintiffs are entitled to a preliminary injunction. Plaintiffs’ right to preliminary injunctive relief is demonstrated by the multiple declarations, including from (1) Dr. Marc Meredith, a political scientist who describes the burdens the challenged provisions impose on Oklahomans’ voting rights and how any state interests in them fall far short of outweighing the burdens; (2) Dr. Catherine Troisi, an infectious disease epidemiologist who explains that the COVID-19 pandemic will continue to be a significant threat to public health in the fall and will make the availability of absentee voting vitally important; and
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(3) Ronald Stroman, the former Deputy Postmaster of USPS who describes the incompatibility between Oklahoma’s voting deadlines, including the Election Day Receipt Deadline, and the increasingly long time it takes to deliver absentee ballots through the mail—an incompatibility that will disenfranchise thousands of lawful Oklahoma voters unless this Court acts.
BACKGROUND I. THE PANDEMIC THREATENS THE NOVEMBER ELECTION.
The novel coronavirus continues to spread, with an average of 678 cases reported per day in Oklahoma over the last week. Troisi ¶ 27. As of August 18th, 49,326 cases had been reported in Oklahoma, 682 of them resulting in death. Id. There is strong consensus among experts that the pandemic will continue into the fall and ever-deepening concerns about an even more difficult second wave. Id. ¶¶ 22, 29. Americans are urged to take extensive precautions until a vaccine is widely available, which will likely not be until 2021. See id. ¶¶ 17-19, 23. The CDC estimates that only 1% to 6.9% of the population in ten U.S. cities (none in Oklahoma) are immune. Id. ¶ 25.
The situation in Oklahoma is dire. The testing positivity rate is at 7.6%; this high rate and the lack of stay-at-home orders, are likely to lead to a surge of cases. Id. ¶¶ 27, 29. Long ranked in the bottom 20% in terms of health status among states, Oklahoma faces heightened risks: high percentages of residents with pre-existing conditions that put them at high risk if infected; 16.1% of Oklahomans are 65 or older, a group at increased risk of death after infection; and significant populations of groups that are particularly vulnerable (African-Americans, 7.8% of Oklahomans; American Indians/Alaska Natives, 9.4%; and Asians, 2.4%). Id. ¶¶ 13–14, 28.
Oklahoma’s high rate of community spread hangs over the upcoming November election, because voting in person indisputably increases the risks of contracting COVID-19. See id. ¶ 30; see also Common Cause R.I. v. Gorbea, No. 20-1753, 2020 WL 4579367, at *2 (1st Cir. Aug. 7, 2020) (“Taking an unusual and in fact unnecessary chance with your life is a
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heavy burden to bear simply to vote.”) (denying motion to stay consent judgment and decree suspending “notary or two-witness requirement” for mail ballots), stay denied sub nom. RNC v. Common Cause, No. 20A28, 2020 WL 4680151 (Aug. 13, 2020). The CDC recommends that voters minimize contact with others, making voting by mail vital. Troisi ¶¶ 20-21, 30-32. Indeed, the risk of infection from COVID-19 makes in-person voting infeasible for many. Without accessible and reliable mail voting, large numbers of Oklahomans will be disenfranchised. Meredith ¶¶ 20-21, 29, 42, 48, 51, 59-60, 61, 68, 84, 95, 97.
Requests for absentee ballots have surged across the country, with many states going from less than 10% absentee voting to more than 50%. Id. ¶ 26 (Table 1). In Oklahoma, however, the volume continues to be strikingly low, which correlates with Oklahoma having more barriers to voting by mail than almost all other states. Id. Because of these barriers, many Oklahomans must choose between risking their health to vote in person or not voting at all. Indeed, while many other states have had exponential increases in absentee voting in 2020, with a majority of people voting by mail, only 14% of voters in Oklahoma’s June 30 primary voted absentee. Id. ¶ 25.
But even this relatively low level of absentee voting is a marked increase for Oklahoma, which typically has had only about 3-4% absentee voting in prior elections. Id. For election officials around the country, increases in absentee voting have created many challenges. Officials have been overwhelmed by the volume of requests for absentee ballots; ballots have been late to reach voters; and the highly publicized, politically charged shortcomings of USPS have resulted in severe mail delays. See Stroman ¶¶ 5-6, 10, 17. Many voters have received their ballots too late to return them on time. Meredith ¶¶ 61-68. In Oklahoma’s June 30 primary, for example, 2,385 ballots arrived in the mail after Election Day and were not counted. Id. ¶ 62 (Table 5). In Ohio, the Secretary of State reported that postal delays “as long as 7-9 days” and “in excess of 10 days”
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jeopardized absentee voting. Id. ¶ 78. The USPS, reeling from budget cuts, staffing shortages, and operational delays, has cautioned that many states’ vote-by-mail systems—including Oklahoma’s—have deadlines that “put ballots at high risk of not being delivered to voters before an election.” Ex. 2 to Stroman at 6. In July, USPS started actively leaving mail behind while warning states that their ballot-receipt deadlines threaten voters with disenfranchisement. Meredith ¶ 75. In August, Oklahoma and most other states received alarming notices from USPS warning it cannot ensure timely deliveries of ballots in November. Stroman ¶¶ 8–18 & Ex. 3. II. OKLAHOMA’S VOTE-BY-MAIL SYSTEM, AS RECENTLY AMENDED, WILL
DISENFRANCHISE THOUSANDS OF VOTERS IN NOVEMBER. A. Voting in Oklahoma before COVID-19 Oklahoma requires citizens who want to vote by mail to overcome a series of sequential obstacles. First, if a voter’s absentee ballot is not accompanied by a notarized affidavit, it is rejected. Okla. Stat. tit. 26, § 14-108. Oklahoma further forbids a notary from notarizing more than 20 ballots in an election outside her place of business. Id. § 14-108.1.1 Second, Oklahomans who mail in their ballots must pay for postage. For those fortunate to have unlimited mobility and reasonable financial resources, this may not seem like much. But for many others, this is a true barrier to voting. In addition to the cost of stamps, the Postage Requirement presents several challenges that are insurmountable for some voters, particularly during the pandemic. These are detailed in Meredith ¶¶ 84–94. While many states have used election funds provided under the CARES Act to provide prepaid postage, Oklahoma has
1 Historically, the only exceptions have been for physically incapacitated voters and those who care for them, who instead must obtain two witness signatures (the “Witness Alternative Requirement,” id. § 14-113.2(A)). Voters using this exception must return ballots by mail—inperson delivery is not permitted. Id. §§ 14-108(A), 14-113.2(A).
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refused―even though, as the Secretary of the Election Board acknowledges, the State has not spent all of its CARES funds. Ziriax Dep. 154:6-8.
Third, Oklahoma rejects mail ballots received after 7:00 p.m. on Election Day, regardless of whether factors outside a voter’s control—such as USPS delivery delays—caused the ballot to arrive late. See Okla. Stat. tit. 26, § 14-104. This requirement has had dire consequences. In the June primary alone, the absentee ballots of 2,385 Oklahomans arrived after the deadline and were not counted. Meredith ¶ 62 (Table 5). Over the past four years, more than 6,394 voters have been disenfranchised by this requirement. Id. For many reasons, the deadline is virtually certain to disenfranchise thousands more this November. Oklahoma law allows voters to request absentee ballots up to a week before Election Day. But in the current circumstances, ballots requested a week before the election are unlikely to make it to a voter by mail in time to be returned through the mail by the deadline. Stroman ¶¶ 11–15. Indeed, the two-week round-trip that USPS is anticipating establishes that even ballots requested two weeks before Election Day are at high risk of being voided by the deadline. It is thus highly likely that thousands of ballots will arrive after November 3 and will not be counted—especially when ballots are sent to a voter a week before the election. See Ziriax 31:6–33:10 (“I can’t disagree with your math[.]”). The system is designed to fail, and the expected surge in absentee voting will lead to unprecedented numbers of disenfranchised voters in November. Meredith ¶ 68; Stroman ¶¶ 6, 10, 16, 18; Ziriax 72:6–73:3. This will shatter public confidence in the fairness and integrity of Oklahoma’s elections.
Fourth, with limited exception, Oklahoma also prevents anyone but the voter from mailing or returning her ballot, even where a home-bound voter asks her adult child or a friendly neighbor to deliver the ballot. See Okla. Stat. tit. 26, § 14 108(A). As of this May, the adult child, friendly neighbor, or anyone else who assists a voter in returning a ballot is subject to criminal prosecution.
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B. The Oklahoma Supreme Court invalidates the Notarization Requirement, and the State immediately responds by imposing burdensome new restrictions.
Three months into the pandemic, the Oklahoma Supreme Court ordered the Secretary to recognize as valid affidavits made under the provisions of state perjury statutes (Okla. Stat. tit. 12, § 426), in effect striking down the Notarization Requirement. LWV, 463 P.3d at 524. Within three days, the Governor had signed S.B. 210, which reinstated the Notarization Requirement and created the Photo ID Alternative Requirement, which allows voters to avoid either the Notarization Requirement or the Witness Alternative Requirement if they sign their ballot affidavit under penalty of perjury and submit with it a photocopy of a photo ID. Okla. Stat. tit. 26, § 7-114.2
The Photo ID Alternative Requirement imposes its own equally unjustifiable burdens on Oklahomans’ right to vote. Many voters now must leave their homes to make copies of their ID, forcing them to interact with others and increase their health risks. Meredith ¶¶ 22, 36, 54-58; Habrock ¶¶ 20, 22–23. And, unlike in-person voters who can sign an affidavit or vote provisionally, voters without documentation cannot vote by mail. Nor did the Legislature stop at the “Amended Notarization Requirement.” S.B. 210 also had ramifications for the Witness Alternative. In S.B. 210, the Legislature temporarily amended the definition of “physically incapacitated”3 to include a narrow sliver of voters affected by COVID-19. See S.B. 210, § 3(C). Under these provisions, Oklahomans who actively have or may have COVID-19, and those who are at a severe risk of illness or death if exposed to the virus, now must get their ballots witnessed
2 A qualifying photo ID must contain a name, photograph, and expiration date after the election, and be issued by “the United States, the State of Oklahoma or the government of a federally recognized Indian tribe or nation.” Id. A “voter identification card issued by the appropriate county election board” also counts. Id.
3 A physically incapacitated voter must be “physically unable to vote in person at the precinct on the day of the election.” Okla. Stat. tit. 26, § 14-110.1.
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by two other people, provide a copy of their photo ID, or vote in person. Id. In the midst of the pandemic, these heath-compromised voters will often fail to find two witnesses willing to risk exposure to the virus to assist. Their only option will be to break quarantine to obtain a copy of their ID or vote in person.4
The Witness Alternative Requirement also imposes an especially pronounced burden on physically incapacitated voters in long-term care facilities and retirement homes who are at higher risk from COVID-19. See Troisi ¶ 13. S.B. 210 requires “a designated official” at nursing homes and veterans’ centers to serve as a witness for ballot affidavits. S.B. 210, § 3(B). According to the Secretary, these ballots still require two witnesses (Ziriax 93:7–94:5), creating a heightened risk in the most vulnerable facilities. And unlike nursing homes and veterans’ centers, the law has no carveout for other long-term care facilities or retirement homes. Thus, physically incapacitated voters at those locations still must find two other residents or staffers willing to violate social distancing measures and handle the voters’ ballots in order to exercise their right to vote.
The Legislature went even one step further by enacting S.B. 1779. As of May 21, it became a felony to return 10 or more sealed and voted absentee ballots on behalf of voters, and a misdemeanor to do the same with fewer than 10. S.B. 1779, §§ 1(A)(2), B(1), (5), 12, 14. Oklahoma thus has criminalized the process of assisting voters during the worst national publichealth emergency in over a century, at a time when voters desperately need such assistance. Id.5
4 More than 416,000 people in Oklahoma live in households with fewer than three adults, at least 166,000 of whom are age 65 and older. Ex. 6. Those voters cannot rely on members of their household to serve as witnesses and will have no choice but to venture out of quarantine or invite others in, and in the process risk exposure to COVID-19 in order to vote.
5 There are very limited exceptions. According to S.B. 1779 § 1(B), illegal “ballot harvesting” does not include (1) a voter’s assistant or agent under Title 26 of the Oklahoma Statutes; (2) assistance by an absentee voting board member given to a nursing home or veterans center resident; (3) employees of the Federal Voting Assistance Program facilitating voting by the
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The law also created a new ballot request criminalization provision, which makes it a felony in most circumstances even to request 10 or more absentee ballots for eligible voters, and a misdemeanor to request fewer than 10.6
C. Oklahoma’s June 30th election The June 30th election demonstrated that the State lacks sufficient safe options for many voters. While Oklahoma experienced an increase in mail ballots cast, the increase was significantly smaller than in other states. Meredith ¶ 26. Despite the “expanded” availability of the “physically incapacitated” exception, the number of voters claiming the exception significantly decreased in June compared to March (from 27% to 14% of mail ballots). Id. ¶¶ 39, 41. Meanwhile, poll workers, many senior citizens, were faced with a heightened danger for transmission of COVID19 due to the prospect of being in close proximity to voters and other poll workers. See Troisi ¶ 20. Those who did choose to vote by mail had to overcome the challenged provisions, and thousands were disenfranchised by them, as described above. Ziriax 40:7–15. The additional transactional costs imposed by the challenged provisions were unjustifiable even before the pandemic: Oklahoma has historically had unusually high rates of unreturned ballots—described as the “attrition” rate—as compared to neighboring states. Meredith ¶¶ 38, 59. But the return attrition rate became more severe in the June election (climbing to 30%), as did the rate of rejections of returned ballots. Id at ¶¶ 39, 62. Despite these spikes, the State has made no inquiry into why tens of thousands of ballots were not returned, nor has it adopted any policies to reduce
Department of Defense or Oklahoma National Guard; (4) a spouse, relative in the first or second degree of consanguinity or affinity or cohabitant of a voter who forwards an absentee ballot to the voter when absent from the home; (5) a voter’s spouse; and (6) election officials.
6 There are exceptions for physically incapacitated or emergency incapacitated voters, whose “assistant or agent” may request one on their behalf; for an absentee voting board member who assists a voter confined to a nursing home or veterans’ center; and for an election official taking official action authorized by law. See S.B. 1779, §§ 1(A)(1)–(4), (B)(1), 12, 14.
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the number of ballots that will be rejected in November. Ziriax 40:16–20, 56:1–10. STANDARD OF DECISION
Plaintiffs must demonstrate (1) they are substantially likely to succeed on the merits; (2) they will suffer irreparable injuries absent an injunction; (3) their injuries will outweigh burdens Defendants might face because of an injunction; and (4) an injunction is in the public interest. N.M. Dep’t of Game & Fish v. U.S. Dep’t of the Interior, 854 F.3d 1236, 1246 (10th Cir. 2017).
ARGUMENT I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS.
A. The Amended Notarization Requirements impose severe burdens on voters. The Amended Notarization Requirements unduly burden the right to vote by imposing multiple barriers to casting a mail ballot, particularly during this pandemic. Under the AndersonBurdick test used to evaluate federal constitutional challenges to state voting restrictions, courts must “weigh ‘the character and magnitude of the asserted injury to the rights . . . that the plaintiff seeks to vindicate’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’” considering “‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’” Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 788–89 (1983)). Anderson-Burdick is a sliding scale, where “the rigorousness of [the court’s] inquiry . . . depends upon the extent to which a challenged regulation burdens [voting] rights.” Burdick, 504 U.S. at 434. “The more a challenged law burdens the right to vote, the stricter the scrutiny to which [federal courts] subject that law.” Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1318, 1319 (11th Cir. 2019). Thus, when voting rights are subject to a “severe” burden, the challenged restriction must be “narrowly drawn to advance a state interest of compelling importance.” Norman v. Reed, 502 U.S. 279, 289 (1992). Less severe burdens remain subject to balancing; “[h]owever slight” the burden on voting rights “may appear,”
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“it must be justified by relevant and legitimate state interests ‘sufficiently weighty to justify the
limitation.’” Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 191 (2008) (controlling op.). In
evaluating burdens, a court must focus on both the burdens on the electorate generally, and on the
individuals directly impacted by the law. See id. at 201–02.
The restrictions’ severe burdens. The Oklahoma Supreme Court has specifically rejected
the Notarization Requirement as an unnecessary burden on voters because Oklahoma law allows
affidavits to be made under penalty of perjury. LWV, 463 P.3d at 524. Other courts have recognized
the unjustifiable burdens that witness and notarization requirements place on voters, enjoining or
modifying those requirements for at least the duration of the pandemic.7
7 See, e.g., Common Cause R.I., 2020 WL 4579367, at *2 (concluding “the incremental interest in the specific regulation at issue (the two-witness or notary rule) is marginal at best”); Libertarian Party of Ill. v. Pritzker, No. 20-cv-2112, 2020 WL 1951687 (N.D. Ill. Apr. 23, 2020) (applying Anderson-Burdick in light of pandemic, and alleviating signature and witnessing requirements for minor party candidates), stay denied pending appeal, No. 20-1961 (7th Cir. June 21, 2020); Thomas v. Andino, Nos. 3:20-cv-01552-JMC & 3:20-cv-01730-JMC, 2020 WL 2617329, at *21 (D.S.C. May 25, 2020) (finding “strong likelihood that the burdens placed upon [plaintiffs] by” witness signature requirement “outweigh the imprecise, and (as admitted by [defendants]) ineffective, state interests of combating voter fraud and protecting voting integrity”); League of Women Voters of Va. v. Va. State Bd. of Elections, No. 6:20-CV-00024, 2020 WL 2158249, at *8 (W.D. Va. May 5, 2020) (“The Constitution does not permit a state to force” voters to choose “between adhering to guidance that is meant to protect not only their own health, but the health of those around them, and undertaking their fundamental right—and, indeed, their civic duty—to vote in an election.”). The Eleventh Circuit upheld a district court’s suspension of Alabama’s witness and photo ID requirements for voters at high risk of complications from COVID-19; two of the judges issued a careful concurring opinion explaining all the reasons to enjoin witness-certification requirements during this pandemic. People First of Ala. v. Sec’y of State of Ala., No. 20-12184, 2020 WL 3478093, *1–*9 (11th Cir. Jun. 25, 2020) (Rosenbaum and Pryor, JJ., concurring), stayed, No. 19A1063, 2020 WL 3604049 (U.S. July 2, 2020). Although the Supreme Court stayed that decision in a one-paragraph order, Alabama’s lead argument for a stay rested squarely on Purcell grounds and had nothing to do with the merits. Specifically, the district court issued its injunction on June 15 for an upcoming July 14 runoff, and the injunction applied only in 3 of Alabama’s 67 counties. Id. Neither of those factors apply here. There is comparatively much more time, and Plaintiffs seek uniform statewide relief.
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In fact, Oklahoma virtually ensures that voters who are actively infected with COVID-19, but who lack a means to make a photocopy of their ID, must come into contact with at least two other people to exercise their right to vote. Requiring known infected voters or those under instruction to self-isolate to interact with two witnesses is a severe burden on the right to vote because it will be difficult, and often impossible, for these voters to find the necessary witnesses. But the potential for exposure is unnecessarily high for a host of voters, not just those infected or possibly infected with the virus. Uninfected voters who do not have a required form of ID, or who do but lack a photocopier, must venture out to satisfy the Photo ID Alternative. Habrock ¶ 22; Meredith ¶ 36; Troisi ¶¶ 2, 30.
Many voters will also be confused or unaware that an exception applies to them, in part because the State Board does not communicate to voters what must accompany a ballot for it to count. Meredith ¶¶ 44-45. The Secretary admitted his office has not offered any interpretations of what the “physically incapacitated” provisions mean or issued regulations relating to the same, and has no plans to do so. Ziriax 116:15–117:3. Data from the primary demonstrate that voters are confused by what “physically incapacitated” means. Meredith ¶¶ 46–47. The percentage of voters who designated themselves as “physically incapacitated” dropped from the March 2020 election to the June election. Id. More disturbing, the decline in the percentage of mail-ballot voters who designated themselves physically incapacitated was the highest among voters over 70, all of whom the CDC classifies as high-risk if infected with COVID-19. Id. ¶ 46.
The Amended Notarization Requirements thus impose severe burdens on large numbers of voters, from disenfranchisement to risk of illness and death. The rate of unreturned and rejected ballots is constitutionally inexcusable, as it demonstrates that each eligible voter is not being given a reliable path to cast a vote. Frank v. Walker, 819 F.3d 384, 386 (7th Cir. 2016) (“[T]he right to
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vote is personal and is not defeated by the fact that 99% of other people” are not seriously impacted.); cf. Luft v. Evers, 963 F.3d 665, 677, 679 (7th Cir. 2020) (holding “each eligible person must have a path to cast a vote[,]” which requires State to “ensure[ ] that every eligible voter can” comply with law with reasonable effort as part of a “reliably implemented” process).8 “If disenfranchising thousands of eligible voters does not amount to a severe burden on the right to vote, then [it is not clear] what does.” Fla. Democratic Party v. Detzner, No. 4:16cv607-MW/CAS, 2016 WL 6090943, at *6 (N.D. Fla. Oct. 16, 2016). The Amended Notarization Provisions should thus be evaluated using strict scrutiny. Id.
Lack of justification. Regardless of the standard applied, the drastic burdens imposed by the Amended Notarization Requirements far outweigh any state interest in applying them, particularly in the current pandemic.
No precise state interests are articulated for the Notarization or Witness Requirement, save for “confirming the identity of the voter” (an interest sufficiently accomplished through selfexecuting affidavits). Ziriax 109:1-5. The perennial yet unsubstantiated risk of “voter fraud” carries little weight under the circumstances. Indeed, Secretary Ziriax concedes “voter fraud is exceptionally rare in Oklahoma and not a major issue here[.]” Id. at 108:6-22. Nor is it an issue elsewhere, even where the relief Plaintiffs’ seek is used. Meredith ¶¶ 103-05 (“[T]he evidence shows that almost no voter fraud is committed using mail ballots.”).9
8 These burdens are not be distributed equally, but fall disproportionately on lower income voters, students, minorities, those over 65, and those with other high-risk factors for COVID-19. See Meredith ¶¶ 88, 94; Troisi ¶¶ 13–14, 28; McAfee ¶ 10.
9 The First Circuit was slightly off in recently stating Rhode Island “may be the lone state” that still has a notary-or-two-witness rule. Common Cause R.I., 2020 WL 4579367, at *2 (noting specter of “fraudulent [mail] ballots” is “surely correct as a matter of theory. But it is dubious as a matter of fact and reality”); see also League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 246 (4th Cir. 2014) (explaining “states cannot burden the right to vote in order to address
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As for the Notarization Requirement, it has already been invalidated by the Oklahoma Supreme Court. LWV, 463 P.3d at 524. The addition of the Photo ID Alternative does not change the calculus. The Amended Notarization Requirements provide little, if any, additional protection against fraud. Meredith ¶¶ 3, 98, 106. The State allows UOCAVA voters to self-authenticate their ballots via affidavit. Ziriax 110:8-13. See also People First of Ala. v. Merrill, No. 2:20-cv-000619AKK, 2020 WL 3207824, at *18 (N.D. Ala. June 15, 2020) (noting “[t]he state has not explained why, consistent with its interest in preventing voter fraud, it can exempt” some voters and not others from a photo ID requirement) (the subsequent history of this case is described in full in footnote 7 above). The Secretary is not aware of any instances of voter fraud in Oklahoma related to these self-authenticating ballots. Ziriax 139:18-140:1. And although Oklahoma is one of only a few states that require notarization or the signatures of two witnesses, there is no evidence that the states without such requirements suffer from increased voter fraud.10
Finally, Oklahoma has multiple, strict voter fraud laws that deter and punish the acts that could give rise to voter fraud. See, e.g., Okla. Stat. 26 §§ 16-102, 16-102.2; 16-103, 16-105, 16-113. The burdens imposed by the Amended Notarization Requirements are thus unnecessary. See Common Cause Ind. v. Individual Members of Ind. Election Comm’n, 800 F.3d 913, 928 (7th
dangers that are remote and only ‘theoretically imaginable,’” such as threats to “electoral integrity and fraud prevention,” with little to no evidence that such dangers exist); Paher v. Cegavske, No. 3:20-cv-00243-MMD-WGC, 2020 WL 2089813, at *1 (D. Nev. Apr. 30, 2020) (“[The State’s] interests in protecting the health and safety of Nevada’s voters and to safeguard the voting franchise in light of the COVID-19 pandemic far outweigh any burden . . . premised on a speculative claim of voter fraud.”).
10 Alabama, North Carolina, Rhode Island, Mississippi, and Missouri are the others. See Ala. Code § 17-9-30(b); see also “Voting Outside the Polling Place: Absentee, All Mail and other Voting at Home Options,” NCSL, https://www.ncsl.org/research/elections-andcampaigns/absentee-and early voting.aspx; Election Fraud Cases, The Heritage Found., https://www.heritage.org/voterfraud/search?state=OK (listing five instances of voter fraud, only two related to absentee voting, in past 13 years).
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Cir. 2015) (asserted state interests cannot outweigh burdens where they can “be served through other means, making it unnecessary to burden the right to vote”).
B. The Election Day Receipt Deadline is unconstitutional. Plaintiffs also are likely to succeed on their claim that the Election Day Receipt Deadline burdens the right to vote under Anderson-Burdick as well as a due process analysis. “There is more to the right to vote than the right to mark a piece of paper and drop it in a box or the right to pull a lever in a voting booth. The right to vote includes the right to have the ballot counted.” Reynolds v. Sims, 377 U.S. 533, 555 n.29 (1964) (citation and quotation marks omitted, emphasis added). The deadline violates the fundamental right to vote by rejecting absentee ballots cast by lawful, registered voters prior to Election Day, simply because the mailed ballots arrive after. A federal district court in Wisconsin, faced with a surge in absentee voting and credible predictions of a breakdown in USPS service, recently extended an election-day receipt deadline by six days, saving the votes of nearly 80,000 citizens who cast valid ballots that were postmarked on or before Election Day but arrived in the days following due to delayed mail service. See DNC v. Bostelmann, Civ. No. 20-cv-249-wmc, 2020 WL 1638374, at *17 (W.D. Wis. Apr. 2, 2020), stayed in part sub nom. DNC v. RNC, Nos. 20-1538 & 20-1546, 2020 WL 3619499 (7th Cir. Apr. 3, 2020), stayed in part, 140 S. Ct. 1205 (2020); see Ex. 8. The Seventh Circuit and Supreme Court narrowed the injunction in other respects, including by requiring that all after-received ballots must be postmarked on or before Election Day, but both not only left the six-day extension of the receipt deadline intact, but approvingly relied on it in rejecting other requested relief. See 140 S. Ct. at 1207-08 (relying on “fact that the deadline for receiving ballots was already extended . . . to ensure [voters] can cast their ballots and have their votes count” in denying additional time to vote); 2020 WL 3619499, at *2 (finding extension of ballot-receipt deadline would give quarantined voters additional time to comply with witness requirements). The Supreme Court expressed no concerns
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about “afford[ing] Wisconsin voters several extra days in which to mail their absentee ballots,” so long as those ballots were “postmarked by election day.” 140 S. Ct. at 1206. That is precisely the sort of “postmark” rule Plaintiffs seek here.11
The Anderson-Burdick analysis is compellingly one-sided. The burdens on individual voters are evident: outright disenfranchisement. Even before the pandemic, the Deadline resulted in the rejection of thousands of Oklahoma voters’ ballots. Meredith ¶ 62 (Table 5). With the expected surge in absentee voting and increasing USPS dysfunction, see McAfee ¶ 13, the number of rejected ballots will only increase in November. Moreover, the experience in Wisconsin and elsewhere demonstrates that modest extensions in ballot-receipt deadlines can be implemented manageably and with minimal administrative burden while avoiding widespread disenfranchisement.12 No one has pointed to any evidence that these extensions have led to voter fraud or other systemic problems and in fact, the Secretary is confident that ballots arriving by at least the Friday after an election would be counted, eliminating any state burden. Ziriax Dep. 106:14-107:9. On top of that, turnout will be vastly larger in November, election officials are likely to be overwhelmed, and USPS will at best continue to face widespread challenges in providing timely election-mail service.
The Deadline is also, for many voters, an unexpected burden. Many other deadlines in their lives are postmark deadlines. See, e.g., Okla. Stat. tit. 68, § 221.1(A) (postmark deadline for tax
11 “Postmark” refers to any type of imprint applied by USPS to indicate the location and date it accepts custody of a piece of mail, including bar codes, circular stamps, or other tracking marks, and, where a ballot does not bear a postmark, requires the State to presume the ballot was mailed on or before Election Day unless the preponderance of evidence demonstrates otherwise.
12 A least 14 other states and D.C. follow a “postmark” rule (or close variant), requiring ballots that arrive in the days following an election to be counted so long as they are timely postmarked. See Nat’l Conference of State Legislatures, VOPP: Table 11: Receipt and Postmark Deadlines for Absentee Ballots, (June 15, 2020), https://www.ncsl.org/research/elections-andcampaigns/vopp-table-11-receipt-and-postmark-deadlines-for-absentee-ballots.aspx.
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returns and payments). Even when registering to vote, the cutoff for mailed applications is a postmark date. Ziriax 52:21-53:6. The Secretary is unaware of any issues or problems the State has with relying on a postmark date in this context. Id. at 53:15-54:2. But when it comes time to vote, voters must simply guess at the appropriate date to mail their ballot and trust the mail service will be timely. Moreover, they must guess as to the appropriate time to begin the process of applying for an absentee ballot, in addition to scheduling their witness or notary. Any misstep that causes the ballot to be received by local election officials after Election Day results in automatic rejection, even if the voter was not at fault for the delay in the mails. This is constitutionally intolerable. See Ne. Ohio Coal. for Homeless v. Husted, 696 F.3d 580, 597 (6th Cir. 2012) (“NEOCH”) (finding likely constitutional violation after state failed to identify “precise interests” justifying “substantial burden” when ballots were rejected due to no fault of the voter).
The State has no adequate justification for discarding ballots mailed by voters by Election Day. By the Secretary’s own admission, extending the Deadline would not jeopardize the State’s ability to finalize election results. See Okla Stat. tit. 26, § 7-136. Moreover, Oklahoma law requires that absentee ballot results shall not be announced earlier than 7:00 p.m. on Election Day, and provisional ballots are not counted and added to the election results until at least the Friday following the election (a deadline that may be extended). Id. § 7-116.1(E). Vote-by-mail ballots that arrive after Election Day could easily be added to this total and be completed by the Friday after the election, as Secretary Ziriax has confirmed. Ziriax 106:14-107:9.13
There is yet another, related constitutional objection to the Deadline: as it is being applied, it violates citizens’ liberty interests in their votes without due process of law. Procedural due
13 In the June election, 87% of late-received ballots arrived by the Friday after the election. Meredith ¶ 64. Counting them would impose little if any administrative burden for reasons stated.
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process analysis requires consideration of (1) “the private interest” affected; (2) “the risk of an erroneous deprivation” of that interest through current procedures; (3) and the “probable value . . . of additional or substitute procedur[es],” taking into account the “administrative burdens” such procedures would entail. McDonald v. Wise, 769 F.3d 1202, 1213 (10th Cir. 2014) (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). The voters’ interests, and the procedural requirements of due process extend to absentee voting.14 We have discussed the “probable value” of a slight extension of the Receipt Deadline above and shown that the administrative burdens would be modest. That leaves “the risk of an erroneous deprivation.” USPS itself has warned that Oklahoma voters are at “high risk” of not having their mailed ballots counted, and the experience in Wisconsin and other states shows the growing risks that thousands—perhaps tens of thousands—of mailed ballots may be rejected because of slow mail service and other factors that voters cannot control. Unlike Oklahoma’s deadline to vote in-person, which is clear—to participate, you must join the line by 7:00 p.m.—the Receipt Deadline provides no bright-line rule to ensure an absentee ballot that is requested, cast, and mailed back will be counted. That time is a constantly moving target, changing depending on elections officials’ workloads and response times in mailing out requested ballots, the vagaries of USPS, and conflicting advice and guesswork by various public officials. This is a constitutionally indefensible way to run an election.
C. The Absentee Assistance Criminalization provisions are unconstitutional. The Absentee Assistance Criminalization provisions impose staggering burdens on the
14 See Martin v. Kemp, 341 F. Supp. 3d 1326, 1338 (N.D. Ga. 2018), appeal dismissed sub nom. Martin v. Sec’y of State of Ga., No. 18-14503-GG, 2018 WL 7139247 (11th Cir. Dec. 11, 2018); Saucedo v. Gardner, 335 F. Supp. 3d 202, 217 (D.N.H. 2018); Raetzel v. Parks/Bellemont Absentee Election Bd., 762 F. Supp. 1354, 1358 (D. Ariz. 1990); see also Fla. State Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1183 (11th Cir. 2008) (“When an election process ‘reache[s] the point of patent and fundamental unfairness,’ there is a due process violation.”) (citation omitted).
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Oklahoma voters who most need assistance by criminalizing the actions of good Samaritans and others who want to assist these voters. The hastily enacted provisions are rife with ambiguities that only compound the burdens and, according to the Secretary, will require individual legal analysis to be conducted by the Board. Ziriax 130:1-134:22. Oklahoma’s interests in these restrictions are minimal and pale in comparison to their burdens—particularly in the present pandemic.
Criminalization burdens. It is now a felony for Plaintiffs to request 10 or more absentee ballots for eligible voters who need assistance to vote by mail, and a misdemeanor to do the same for fewer than 10 absentee ballots.15 This reduces access to vote-by-mail opportunities on which many voters and prospective voters reasonably—and now in a pandemic, necessarily—rely. It drastically shrinks, if not outright eliminates, the pool of persons and organizations who can assist a voter in requesting a ballot. That task can be particularly challenging for subsets of voters including language minorities, the disabled, those vigilantly social distancing to prevent contracting COVID-19 or spreading it to a vulnerable close contact, and those without ready access to mailboxes (including Native Americans), transportation, or the Internet. See League of Women Voters of Fla., Inc. v. Detzner, 314 F. Supp. 3d 1205, 1216–17 (N.D. Fla. 2018) (“Disparate impact matters under Anderson-Burdick.”); Meredith ¶ 96. Many organizations, including Plaintiffs, want to help voters request absentee ballots. Newman ¶¶ 9-12; Andrews ¶¶ 8-10; Habrock ¶ 18. But now they cannot do so without risking felony prosecution.
Absentee Assistance Ban and Criminalization burdens. The Ban prevents anyone but
15 As noted earlier, there are exceptions for a physically incapacitated or emergency incapacitated voter, whose “assistant or agent” may request am absentee ballot on their behalf in person, but only at the office of the county election board. See Okla. Stat. tit. 26, §§ 14101.1(A)(4), 16-104.1,16-126. Other exceptions exist for an absentee voting board member who assists a voter confined to a nursing home or veterans’ center, as well as for an election official taking official action authorized by law. See S.B. 1779, §§ 1(A)(1)-(4), (B)(1), 12, 14.
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the voter from mailing or returning his or her absentee ballot, see Okla. Stat. tit. 26, §§ 14101.1(A)-(B), 14-108(A); Okla. Admin. Code § 230:30-11-1.1(a), except that a voter’s spouse may return the ballot “by mail” (but apparently not in person). Okla. Stat. tit. 26, § 14-101.1(A)(1), (2), (B)(5).16 The new Absentee Assistance Criminalization rule now makes it a felony for anyone to return or work with others to return 10 or more sealed and voted absentee ballots for voters requiring assistance, and a misdemeanor to do so with 10 or less ballots. Id. §§ 16-104.1, 16-126.
A voter who does not meet (or is unable to ascertain) the narrow definition of “physically incapacitated” and does not have a spouse is the only person that can return their ballot. Ziriax 155:3-16. Thus, most potential voters can only receive assistance returning a ballot from a spouse, and even then it must be mailed. This irrational and punitive rule subjects the ballot to the pandemic-induced delays and USPS delays, and increases the burdens on those who lack easy access to a mailbox. Meredith ¶¶ 95-97. Unmarried and widowed voters must mail or return their ballot themselves. Even single parents cannot ask their own children to mail or return their ballots for them. For voters with disabilities, who are social distancing or self-quarantining, or who lack ready access to postage or transportation, the burdens are severe and potentially prohibitive. Moreover, combined with the potential for mail delays and the disenfranchising effects of the Receipt Deadline, voters who receive their ballots close to Election Day will have no choice but to hand-deliver their ballot to the county board and present proof of identity—necessitating contact with election officials in a pandemic. See Okla. Stat. tit. 26, § 14-108(C). At best, this will force
16 It is unclear whether a “physically incapacitated” voter may use an “agent” (other than a spouse) to return his ballot. Although Okla. Stat. tit. 26, § 14-110.1 allows an agent to assist a physically incapacitated voter in applying for an absentee ballot, there appears to be no comparable provision addressing an agent’s return of a ballot unless the voter is emergency incapacitated. Id. § 14-115.1; see also S.B. 210 § 3(C) (amending definition of “physically incapacitated” for “purposes of requesting an absentee ballot described in” Okla. Stat. tit. 26, § 14-110.1) (emphasis added). This ambiguity enhances the burdens imposed on the most vulnerable voters.
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many voters to choose between jeopardizing their health and exercising their right to vote. At worst, the rules ensure disenfranchisement.
Organizers and volunteers with political organizations and civic groups, such as Plaintiffs and CAIR-OK, are critical to fill this assistance gap. But Oklahoma now bans and criminalizes all that activity, restricting the pool of potential help available to absentee voters and chilling the speech and associational rights of Plaintiffs and other organizations that would otherwise engage in absentee voter drives and provide this vital assistance for accessing the franchise, but for the threat of felony prosecution. Habrock ¶ 18; Newman ¶¶ 9-12; Andrews ¶¶ 8-10; McAfee ¶ 15. The Ban makes it needlessly difficult for certain voters to receive help designed to avoid this type of disenfranchisement, including those who live alone or have no family members willing or able to deliver ballots, and minority and low-income voters, who face greater rates of disenfranchisement from the current Receipt Deadline and thus stand to benefit the most from organized assistance. Habrock ¶¶ 14-18; Newman ¶¶ 9, 11; Andrews ¶ 9. Beyond returning ballots, trained professionals can also remind voters to sign their ballots—a misstep that unintentionally disenfranchises hundreds each year, especially first-time mail voters. Habrock ¶¶ 13-15.
State interests. Because the Absentee Assistance Criminalization provisions are so severe, they “must be narrowly drawn to advance a state interest of compelling importance.” Norman, 502 U.S. at 289. Defendants cannot come close to making such a showing. The State has an interest in ensuring that voters lawfully mark their own ballots and that the ballots are returned, not in preventing others from assisting voters in requesting a ballot or returning it once it is sealed and voted and enclosed within three sealed envelopes. Oklahoma has a host of laws tailored to these
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specific interests, and the prevention of fraud generally.17 Given these numerous existing safeguards for ballot assistance, there is no justification for
the burdens the challenged restrictions impose under any circumstances, much less during a pandemic. See Yes on Term Limits, Inc. v. Savage, 550 F.3d 1023, 1030 (10th Cir. 2008) (holding Oklahoma’s ban on non-resident petition circulators unconstitutional as insufficiently tailored to further a compelling interest where, inter alia, “Oklahoma could provide criminal penalties” directly targeting fraudulent activity rather than banning non-resident circulators as a class); League of Women Voters of N.C., 769 F.3d at 246 (“states cannot burden the right to vote in order to address dangers that are remote and only theoretically imaginable,” such as “election integrity and fraud protection,” with little evidence such dangers exist) (quotation marks omitted).
Core First Amendment activities. The Absentee Assistance Criminalization provisions should also be enjoined because they violate Plaintiffs’ speech and associational rights. Voter turnout efforts, including assisting voters in requesting and returning their sealed and voted absentee ballots, are important ways in which Plaintiffs support like-minded candidates, communicate with voters, and express their belief in the importance of electoral participation. See
Newman ¶¶ 9-12; Andrews ¶¶ 8-10; Andrews 55:4-6, 56:9-15, 57:9-24. These are speech and
associational activities going to the heart of the First Amendment. See Meyer v. Grant, 486 U.S.
414, 420–24 (1988); Yes on Term Limits, 550 F.3d at 1028 (re “interactive communication
concerning political change”). As one court recently observed in enjoining much less restrictive
17 These include making it a felony or misdemeanor to fill out another’s ballot without consent; execute a false application for a ballot; collect ballots under a false pretense of returning them to election officials; vote a ballot issued to another person; conspire to commit fraud or perpetuate fraud; influence the vote of another by means of force or intimidation; interfere with a voter attempting to vote; or interfere with the conduct of any election. See Okla. Stat. tit. 26, §§ 14-101.1(A)(3), (5), 16-102, 16-102.2, 16-104.1, 16-105, 16-113, 16-126.
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absentee voter assistance prohibitions than Oklahoma’s, “[r]educing the number of individuals who could potentially provide assistance to potential voters, particularly those [who] a political party believes would support their candidate, diminishes the speech and associational rights of political organizations like” Plaintiffs.18 Because the challenged provisions criminalize political expression and association, they should be enjoined.
D. The Postage Requirement is unconstitutional. The Postage Requirement imposes monetary costs and other burdens on voters, which are particularly severe this year when mail voting is likely to be the only safe method for many to exercise their right to vote. Supra at 3-4. These associated costs and burdens are detailed in Meredith ¶¶ 84-94. As demonstrated there, the Postage Requirement imposes significant burdens on casting a mail ballot on many voters who are elderly, disabled, live far from a post office, or have limited transportation options. See also McAfee ¶ 12; see generally Andrews 69:17-23. Oklahoma recognizes that postage is a burden on voters. That is why Oklahoma citizens living overseas and military personnel abroad need not pay for postage to return their completed absentee ballots by mail. Ziriax 147:4-8. Political science research shows that postage can be such a burden that potential voters do not vote, and turnout increases where postage is prepaid. Meredith ¶¶ 85-86. Failing to affix return postage is more likely to disenfranchise a potential voter when
18 DSCC v. Simon, 2020 WL 4519785 at 51 (Minn. Dist. Ct. Aug. 3, 2020). “The discussion of whether to vote absentee and to allow your ballot to be collected … inherently implicates political thought and expression” because “[u]ltimately, for political organizations, voter assistance walks hand in hand with their efforts to get individuals and groups, for whom they believe will support their candidates, to cast votes.” Id. at 52; see also, e.g., League of Women Voters v. Hargett, 400 F. Supp. 3d 706, 720 (M.D. Tenn. 2019) (“Encouraging others to register to vote is pure speech, and, because that speech is political in nature, it is a core First Amendment activity.”) (quotation marks and alterations omitted)); Am. Ass’n of People with Disabilities v. Herrera, 690 F. Supp. 2d 1183, 1202 (D.N.M. 2010) (“An organization’s attempt to broaden the base of public participation in and support for its activities is conduct ‘undeniably central to the exercise of the right of association.’”).
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there is uncertainty over how much postage to apply. Id. ¶ 89. The State Board cannot answer this question. Id. Yet, prepaid postage is a feasible solution to the hurdles Oklahomans faces in voting safely in a pandemic. The State has no adequate justification for passing the burden of postage on to its citizens. This is purely a matter of administrative convenience, which cannot outweigh burdens on fundamental rights. See Taylor v. Louisiana, 419 U.S. 522, 535 (1975). Moreover, Congress has allocated $2.9 million for Oklahoma to use for coronavirus-related election expenses, which can be used to cover the cost of prepaying postage. Ziriax 153:7-15.19 II. AN INJUNCTION IS REQUIRED TO AVOID IRREPARABLE HARM
The challenged provisions, individually and collectively, put Plaintiffs’ members and constituents at great risk of disenfranchisement, plainly an irreparable injury. See, e.g., League of Women Voters of N.C., 769 F.3d at 247; Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012). “The denial of the opportunity to cast a vote that a person may otherwise be entitled to cast—even once—is an irreparable harm.” Jones v. Governor, 950 F.3d 795, 828 (11th Cir. 2020); see also Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1321 (11th Cir. 2019) (“[I]t is a ‘basic truth that even one disenfranchised voter—let alone several thousand—is too many.’” (citation omitted)). Once an election occurs, “there can be no do-over and no redress.” League of Women Voters of N.C., 769 F.3d at 247. Moreover, “[s]erious, lasting illness or death” also
19 The Postage Requirement also violates the Twenty-Fourth Amendment, which provides that the right to vote “shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax,” see U.S. Const. amend. XXIV, § 1; see also Harman v. Forssenius, 380 U.S. 528, 539 (1965); Harper v. Va. State Bd. of Elections, 383 U.S. 663, 666 (1966). “[V]oting cannot hinge on ability to pay . . . for it is a ‘fundamental political right . . . preservative of all rights.’” M.L.B. v. S.L.B., 519 U.S. 102, 124 n.14 (1996) (quoting Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886)). This is true regardless whether a voter is able to pay. See Harper, 383 U.S. at 668 (finding imposition of a fee unconstitutional “whether the citizen, otherwise qualified to vote, has $1.50 in his pocket or nothing at all”). Oklahoma does what Harper prohibits: it conditions casting a mail ballot on paying a fee (i.e., postage).
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constitutes irreparable injury. Thakker v. Doll, No. 1:20-cv-480, 2020 WL 1671563, at *4 (M.D. Pa. Mar. 31, 2020) (re potential exposure to COVID-19 virus). The challenged provisions also bar Plaintiffs, their members, and their constituents from participating in election-related activities, also causing irreparable harm. And Plaintiffs must divert time and resources from their missioncritical advocacy work. Newman ¶¶ 5-13; Andrews ¶¶ 6-10; Andrews Dep. 44:3-9, 15-16. Once the election cycle is over, these injuries to Plaintiffs and voters alike cannot be “undone through monetary remedies.” Cunningham v. Adams, 808 F.2d 815, 821 (11th Cir. 1987). III. THE BALANCE OF EQUITIES AND PUBLIC INTEREST FAVOR AN
INJUNCTION Defendants have no legitimate interest in enforcing unconstitutional laws. They face, at most, administrative inconveniences. But these cannot justify practices that impinge on fundamental rights. Taylor, 419 U.S. at 535; Kemp, 347 F. Supp. 3d at 1268. Some marginal gain in electoral efficiency, or the specter of hypothetical voter fraud, cannot justify severely burdening the right to vote or outright disenfranchisement. That is especially so for those made to face the “excruciating dilemma” of choosing between “ventur[ing] into public spaces, contrary to public directives and health guidelines or stay[ing] at home and los[ing] the opportunity to vote.” Bostelmann, 2020 WL 1320819, at *5. The public interest is best served by injunctive relief in cases like this because “[t]he public has a ‘strong interest in exercising the fundamental political right to vote.’” League of Women Voters of N.C, 769 F.3d at 248 (citations omitted); Obama for Am., 697 F.3d at 437.
CONCLUSION For these reasons, and as further established in the accompanying declarations, exhibits, and deposition testimony, Plaintiffs respectfully request this Court to grant a preliminary injunction and to enter the proposed order that accompanies this brief.
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DATED: August 19, 2020

s/ Frank W. Frasier Frank W. Frasier, OK# 17864 FRASIER, FRASIER & HICKMAN, LLP 1700 Southwest Boulevard Tulsa, OK 74107 Telephone: 918.584.4724 Facsimile: 918.583.5637 FFrasier@frasierlaw.com
Marc E. Elias John Devaney Ariel B. Glickman PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 800 Washington, DC 20005-3960 Telephone: 202.654.6200 Facsimile: 202.654.6211 MElias@perkinscoie.com JDevaney@perkinscoie.com AGlickman@perkinscoie.com
Charles G. Curtis, Jr. Sopen B. Shah Will M. Conley PERKINS COIE LLP 33 East Main Street, Suite 201 Madison, WI 53703-3095 Telephone: 608.663.7460 Facsimile: 608.663.7499 CCurtis@perkinscoie.com SShah@perkinscoie.com WConley@perkinscoie.com
Counsel for Plaintiff

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CERTIFICATE OF SERVICE I hereby certify that on August 19, 2020, I electronically transmitted Plaintiffs’ Memorandum in Support of Plaintiffs’ Motion for a Preliminary Injunction to the Clerk of Court using the ECF System for filing, which will transmit a Notice of Electronic Filing and a copy of the document to all counsel who have entered an appearance in this case.

DATED: August 19, 2020

s/ Frank W. Frasier
Frank W. Frasier, OK# 17864 FRASIER, FRASIER & HICKMAN, LLP 1700 Southwest Boulevard Tulsa, OK 74107 Telephone: 918.584.4724 Facsimile: 918.583.5637 FFrasier@frasierlaw.com

 
 Case 4:20-cv-00211-JED-JFJ Document 56 Filed in USDC ND/OK on 09/17/20 Page 1 of 52

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

DCCC; OKLAHOMA DEMOCRATIC PARTY,
Plaintiffs,
v.
PAUL ZIRIAX, in his official capacity as SECRETARY OF THE OKLAHOMA STATE ELECTION BOARD, et al.,
Defendants.

) ) ) Case No. 20-CV-211-JED-JFJ ) ) ) ) ) ) ) )

OPINION AND ORDER The plaintiffs, DCCC and Oklahoma Democratic Party, filed the operative complaint in this action on June 11, 2020, seeking injunctive and declaratory relief relating to various requirements imposed upon their constituents and members who choose to vote by absentee ballot in the upcoming November, 2020 election. Pursuant to 42 U.S.C. § 1983, the plaintiffs assert claims under the First, Fourteenth and Twenty-Fourth Amendments to the United States Constitution. The defendants, who are the Secretary of the Oklahoma State Election Board and Members of that Board, oppose the relief requested. On August 19, 2020, the plaintiffs moved for a preliminary injunction. (Doc. 47). Pursuant to Fed. R. Civ. P. 65(a)(2), the Court conducted a hearing on August 26, 2020 on the plaintiffs’ request for preliminary injunction and, with the parties’ consent, advanced the trial on the merits and consolidated it with the injunction hearing. The Court admitted into evidence Plaintiffs’ Exhibits (PX) 1 through 26. In addition, at the request of the

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parties and without objection, the Court admitted as exhibits the attachments to the parties’ briefing (Doc. 47 and 48), which include numerous witness declarations and documentary exhibits. (See 8/26/2020 Transcript (Tr.). at 5).
The Court also considered the live hearing testimony of Dr. Catherine Troisi, plaintiffs’ expert in epidemiology and infectious disease, Dr. Marc Meredith, a political scientist from the University of Pennsylvania who has written extensively about election laws, and Ronald Stroman, the former Deputy Postmaster General of the United States Postal Service (USPS), the second highest-ranking USPS official, who served in that position from 2011 until June 1, 2020. The Court has also considered the plaintiffs’ First Amended Complaint (Doc. 18), the defendants’ Answer (Doc. 46), and the parties’ arguments in writing as well as the oral arguments presented during the injunction trial.
Pursuant to Rules 52(a)(1), (2) and 65(d)(1) of the Federal Rules of Civil Procedure, and upon consideration of the evidence admitted at trial, including the demeanor and credibility of the witnesses who testified live, the Court makes the following findings of fact and enters the following conclusions of law. 1 This Opinion and Order shall also serve as the statement of reasons for the Court’s ruling on the plaintiffs’ request for injunctive and declaratory relief, in accordance with Fed. R. Civ. P. 65(d)(1)(A).
1 Any findings of fact that are conclusions of law shall be construed accordingly, and any conclusions of law that are findings of fact shall be construed accordingly.
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I. FINDINGS OF FACT A. The COVID-19 Pandemic
The novel coronavirus disease of 2019 (COVID-19) needs little introduction. COVID-19 is a worldwide pandemic. The Centers for Disease Control (CDC) currently reports that there have been over 6,000,000 cases of COVID-19 in the United States. Much of the country nearly shut down due to the virus during parts of the last 6 months, schools in many states have remained closed or delayed, and state and federal government offices have been impacted. Since March, 2020, this Court has entered numerous General Orders regarding courthouse access and functions in light of the pandemic. (See General Order Nos. 20-05 et seq.). In the latest General Order regarding courthouse operations, the Court again continued all civil and criminal hearings and trials scheduled on or before September 30, 2020, with telephonic or video hearings possible at the discretion of each judge. (General Order No. 20-24). Because of the pandemic, the United States Supreme Court has conducted oral arguments by remote audio means, and the Tenth Circuit Court of Appeals is continuing to conduct oral arguments this month via video conference.
The reason for these unprecedented precautions is clear. COVID-19 continues to be a dangerous threat to Americans and is still rapidly spreading in many areas of the country, including Oklahoma. At the time the Court’s first General Order was entered six months ago on March 17, 2020, the CDC had confirmed a total of 4,226 cases in the United States, and the State of Oklahoma had a total of 19 positive cases. Today, the CDC reports over 6,500,000 cases, and the Oklahoma Department of Health reports over 71,000 positive
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cases in the State of Oklahoma. Over 900 Oklahomans, and nearly 200,000 people in the United States, have died from COVID-19.
The State of Oklahoma has a case fatality rate of over 1% and a high test-positivity rate, which indicate that “the virus is not under control” here. (Trial Transcript [Tr.] at 18). There is no vaccine and no prophylactic medication. (Id. at 19). As a result, the only methods of preventing spread of the virus include avoiding contact with others, masking, physically distancing six feet or more, frequent environmental sanitation, and limiting circumstances where crowds can gather. (Id.). Oklahoma does not have a statewide mask mandate. (Id. at 19). The Oklahoma Solicitor General confirmed that Oklahoma voters will not be turned away from the polls for not wearing a mask:
THE COURT: Am I correct that there is no statewide mandate that would require Oklahoma voters to wear masks at in-person polling places? MR. MANSINGHANI: That is correct, Your Honor. Our protocols which were attached to Secretary Ziriax’s deposition urge voters to wear masks, but we will not turn a voter away from the polling place simply because they are not wearing a mask. THE COURT: All right. Thank you. The Oklahoma Election Board only strongly recommends that election workers and voters wear masks or cloth coverings at in-person voting sites; is that correct? MR. MANSINGHANI: That is correct, Your Honor. (Id. at 174:12-24). Scientific data indicates that the virus can be transmitted from a person who is asymptomatic or before symptoms are exhibited. (Id. at 23). Although the risks of severe complications and death are possible for persons of any age, certain people, including those over 65, those who have diabetes, heart disease, or cancer, or who are obese or
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immunocompromised, appear to be more susceptible to serious or deadly outcomes. (Id. at 23-24). Excluding age, an estimated 57 percent of people in the United States have a risk factor for severe COVID-19 illness. (Id.). The virus is spread through the mouth or nose, from coughs, sneezes, talking, singing, and shouting, which can spread droplets or aerosols not visible to the human eye, and through contact with surfaces infected with the virus. (See id. at 26-27).
There is scientific consensus that COVID-19 will continue to spread throughout the United States through the November 2020 general election (see PX 1 ¶¶ 22, 29), heightening concerns about in-person voting risks. Against this backdrop, and in the context of the upcoming November, 2020 general election, the plaintiffs filed this case due to legitimate concerns about the safety of in-person voting during the pandemic and what they view as voting barriers imposed by Oklahoma’s absentee ballot laws. The plaintiffs challenge several provisions of Oklahoma law, which they claim will unreasonably burden voters who wish to vote by absentee ballot in order to avoid standing in line with numerous others to vote in-person, in potentially crowded spaces. B. The Parties
Plaintiff DCCC is the national congressional committee of the Democratic Party. (PX 24, ¶ 2). Its mission is to elect Democrats to Congress, including to Oklahoma’s five congressional districts. Id. Accordingly, DCCC and the Democratic candidates it supports, including incumbent Democratic members of Congress, have an interest in ensuring that Democratic voters in Oklahoma have an opportunity to express their will regarding Democratic Party candidates running for elections. (Id.)
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To achieve its mission, DCCC makes expenditures for, and contributions to, Democratic candidates for U.S. Congress and assists state parties throughout the country, including in Oklahoma. (Id. ¶ 3). During the 2018 election cycle, DCCC spent tens of millions of dollars across the country for this purpose. Id. DCCC has made and will make similar expenditures for the 2020 election cycle in Oklahoma. Id. DCCC has budgeted significant resources for its efforts in Oklahoma because it has as one of its highest priorities the election of an Oklahoma incumbent in a competitive seat. (See id.).
DCCC’s efforts are focused particularly on supporting specific subsets of voters, including lower-income voters, elderly voters, and other voters who are at high risk of complications from COVID-19 and who may thus have greater concerns about in-person voting. (See id. ¶ 5). DCCC represents that it has diverted resources to deal with the absentee ballot provisions.
Plaintiff Oklahoma Democratic Party (ODP) is an Oklahoma political party consisting of all registered voters in Oklahoma who declare themselves Democrats. (See PX 25 ¶¶ 2-3). The ODP has approximately 2.1 million members in Oklahoma. (Id. ¶ 3). The mission of ODP is to elect Democrats to office at the federal, state, and local levels, and to educate voters. (Id.). As a result, ODP has an interest in ensuring that its voters, members, and constituents have an opportunity to express their will regarding Democratic Party candidates running for elections, as well as ballot measures and initiatives those individuals support. (Id.).
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ODP expends significant resources, regularly engaging in voter assistance programs, including voter registration drives, voter education and community outreach, and “Get Out The Vote” efforts to encourage Oklahomans to vote. (Id. ¶ 4). The ODP represents that, due to the importance of absentee voting during the COVID-19 pandemic, ODP has diverted resources from its regular Get Out The Vote efforts and programs to elect Democratic Party candidates in Oklahoma, to address voter confusion relating to Oklahoma’s absentee voting system. (Id. ¶ 6).
The defendants are Paul Ziriax, who is the Secretary of the Oklahoma State Election Board, Tom Montgomery, who is Chair of the Board, Dr. Tim Mauldin, who is Vice-Chair of the Board, as well as Board member Heather Mahieu Cline, and alternate Board members Jerry Buchanan and Debi Thompson. All defendants are named only in their official capacities. C. Increased Numbers of Oklahoma Voters are Expected to Vote by Absentee
Ballot in the November 2020 General Election As a result of the COVID-19 pandemic, the State of Oklahoma has encouraged voting by absentee ballot. (See PX 15 at 71:2-6). In the Oklahoma June 30, 2020 Primary Election, 14% of the ballots cast on State Question No. 802 were absentee ballots, up from 3% cast on State Question No. 788 in the June 2018 Primary Election and 4% cast during the March 3, 2020 Primary Election. (See PX 2 ¶ 25; PX 15 at 69:2-4). Oklahoma Election Board Secretary Ziriax testified that the number of votes case by absentee ballot is expected to increase with the November general election: Q. Do you expect the volume of voting by mail to increase above what it
was in the June election?
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A. Yes. Q. Why? A. Because turnout is always higher at a general election and especially
in a presidential general election. So it is very safe to assume that there will be more voters in every category that a voter might choose to vote, whether that’s in-person on Election Day, in-person absentee or standard absentee. (PX 15 at 72:6-18). Dr. Meredith analyzed data from Oklahoma’s June 2020 primary election and testified that there was a modest increase in mail ballot use from the Oklahoma presidential primary on March 3, 2020 (before the federal and state governments declared states of emergency in relation to COVID-19) to the June 30, 2020 statewide primary, after a state of emergency was declared. (See PX 2 at 16-17, ¶ 27). He further determined that the use of mail ballots increased for people of all ages, but it particularly increased for voters born in the 1920s, 1930s, and 1940s. (Id.; see also id. at 17, Table 1). D. During the Pandemic, Absentee Voting is Safer than In-Person Voting In-person voting in Oklahoma presents risks of COVID-19 infection, although the State has attempted to reduce the risks by putting in place numerous safeguards. (Doc. 482, Ziriax Declaration at ¶ 7; see also id., Attachment 1, at 23-25 of 74). Those safeguards include social distancing of poll workers and voters, sanitizing voting equipment before the polls open and then hourly after polls open, and other measures intended to decrease the risks of contracting COVID-19. (See id.). Voting in-person will likely still require standing in fairly close proximity to other voters and poll workers, for some time. It also
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appears that, to the extent that such distancing and other safety measures may result in slowing down the processing of voters, there may be an unintended consequence of lengthening the amount of time that voters may be standing in line, and thereby in proximity to other voters (some of whom may not be wearing masks) for a longer amount of time.
Due to these increased risks of in-person voting, voting by mail using Oklahoma’s absentee ballot, is a safer option. (See PX 1 at ¶ 30). However, the plaintiffs assert that Oklahoma’s requirements to vote by absentee ballot create undue burdens that risk effectively disenfranchising many Oklahoma voters. E. The Challenged Statutory Provisions
Oklahoma laws regarding absentee voting are found at Title 26, Oklahoma Statutes, §§ 14-101 et seq. Oklahoma law permits all voters to vote by absentee ballot. Okla. Stat. tit. 26, § 14-105 (“Any registered voter may apply for an absentee ballot”). However, Oklahoma imposes upon absentee voters numerous requirements that the plaintiffs claim violate constitutional rights.
1. Absentee Voter Identification Requirement Plaintiffs maintain that Oklahoma’s absentee voting identification requirements are an undue burden on Oklahomans’ rights to vote, particularly in the context of the COVID19 pandemic. Oklahoma law, as amended in May, 2020, requires that absentee ballots be completed with a proof of identification by one of the following methods, as applicable:
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(a) notarized by a notary public, Okla. Stat. tit. 26, 14-108(A);2 (b) if the voter is “physically incapacitated,” signed by two witnesses, § 14113.2; or (c) if a state of emergency is declared within 45 days of the 2020 election, “in lieu of” notarization or two witness signatures, an absentee voter may attach a “photocopy of a form of identification described in subsection A of [§ 7-114].” See 2020 Okla. Sess. Law Serv. Ch. 10 (Senate Bill 210), § 3; Doc. 48, Ex. 2, Ziriax Decl. ¶ 15. Methods of identification under § 7-114(A) include photo identification issued by a federal or state government, a federally-recognized tribe or nation, or a voter identification card. Okla. Stat. tit. 26, § 7-114. On August 28, 2020, two days after the Court’s August 26 trial proceedings, Oklahoma Governor Kevin Stitt renewed the state of emergency, with the intent of triggering the provisions of Senate Bill 210 for the November 3, 2020 general election. As a result, for the November 2020 general election, absentee voters may verify their identities by including a copy of an approved form of identification with their affidavit envelope, as described above in (c). See Exec. Dep’t Fourth Am. Exec. Order 2020-20, Gov. Stitt (Aug. 28, 2020), https://www.sos.ok.gov/documents/executive/1956.pdf.
2 Oklahoma also forbids a notary from notarizing more than 20 ballots in an election, except with written approval of the secretary of the county election board or when the notarizations take place at the notary’s public place of business during normal business hours. Okla. Stat. tit. 26, § 14-108.1(C).
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According to plaintiffs’ infectious disease expert, Dr. Troisi, the notarization and
two witness signature requirements of Oklahoma’s absentee ballot system “have the
potential to contribute to virus transmission.” (PX 1 at ¶ 30). As Dr. Troisi opined:
[F]or the upcoming November election in Oklahoma, voting in person presents a risk of infection with the coronavirus and voting by mail is a safer option for public health and safety, given that it is highly likely that the virus will be circulating during voting season. One of the ways the virus can be transmitted is through touching an environmental surface contaminated with the virus. A recent review of other coronaviruses found that they could survive from two hours to nine days on such surfaces, depending on the type of surface, temperature, and humidity. Although the virus can survive for short periods on some surfaces, it is unlikely to be spread from domestic or international mail, products or packaging, due to the time interval between sending and receipt of mail. However, touching the same piece of paper as well as close human contact necessitated by the witness/notary requirements in Oklahoma does have the potential to contribute to virus transmission. Other than the witness/notary requirements, voting by mail generally prevents close interactions. Voting by mail decreases the opportunities for virus transmission among voters who could otherwise be exposed to the virus while in line, signing poll books, and casting votes on voting machines that are repeatedly touched, within very short periods of time, by other people.
(PX 1 at ¶ 30, internal footnote sources omitted).3
Plaintiff’s political scientist witness, Dr. Meredith, testified about the political
science concept of the “calculus of voting,” which describes the costs and benefits
calculation that a potential voter conducts when deciding whether or not to vote. (See PX
2 at ¶ 15 et seq.; Tr. at 51 et seq.). The calculus of voting describes the potential voter’s
3 While Dr. Troisi’s declaration and testimony focused primarily on concerns of exposure from the two witness signature and notarization requirements, she further opined that “[o]btaining photocopies also may require leaving one’s house and entering a business, interacting with others in close proximity, and potentially touching infected surfaces.” (PX 1 at 32). She acknowledged, however, that there are methods of complying with the identification requirements that would not require close contact and would comply with COVID-19 health guidance. (See Tr. at 43-44).
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“weighing the benefits they perceive they receive from voting, one’s sense of civic duty that they fulfill when casting a ballot or feeling that they’re contributing to something important, against the costs of voting.” (Tr. at 51:17-25). “Costs could mean monetary costs, expenditures, but more frequently are referring to the opportunity costs of time that a potential voter must expend in order to successfully cast a ballot.” (Id. at 51:25-52:3). “And the calculus of voting framework states that someone will cast a ballot, or at least attempt to cast a ballot when they perceive the benefits are greater than the cost of doing so.” (Id. at 52:4-7).4
According to Dr. Meredith, “[t]he cost of submitting a copy of one of the forms of identification [notarization, witness signatures, or copy of identification] varies substantially among potential voters.” (PX 2 at ¶ 54). For a potential voter with a working printer at home, the cost is “likely minimal,” whereas “it can be costly to include a copy of such forms of identification” to a voter without a working printer, “particularly ... when the person is practicing vigilant social distancing, lacks access to transportation, or does not have immediately accessible a copy of one of these forms of identification.” (Id.). Based upon a 2015 survey of over 5,000 households with printers, which estimated that 60.49% of American households had one or more printers, Dr. Meredith opined that “some
4 Dr. Meredith’s testimony establishes that the costs of identification may vary significantly among potential voters, as those costs are personal and may differ from voter to voter. Without the testimony of any particular voter regarding the impact of the laws upon them, it is difficult for the Court to determine any voter’s “calculus of voting,” because it necessarily involves predicting what is a hypothetical voter’s thoughts.
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potential voters with the greatest need for an alternative to in-person witnessing are most likely to lack access to printers, scanners, copiers, or fax machines in their households.” (Id. at ¶ 56). He further noted that, while he was “aware of no study that specifically asks about seniors’ access to printers, scanners, copiers, or fax machines,” he “expect[s] that older potential voters have less access to [those devices] than younger potential voters.” (Id. at ¶¶ 57). At trial, he further opined that “older Oklahomans are going to be the least able to make a copy of their driver’s license from within their residence.” (Tr. at 74).
Dr. Meredith noted favorably that the State of Oklahoma has provided names and addresses of public places to obtain free notary and photocopy services. (See Tr. at 74:2375:5). Secretary Ziriax and his office took these steps in an effort to facilitate absentee voting, which he expects to increase due to the COVID-19 pandemic. (See Doc. 48-2, ¶ 19). Those efforts have included partnering with Oklahoma banking and credit union associations to provide Oklahoma voters with greater access to notarization services. (Id.). As a result, numerous banks, credit unions, and other institutions across the state are offering free notarization and/or identification copying services, and many of them are offering such services via drive-thru. (Id.). Voters can find the free services nearest them at https://www.ok.gov/elections/Notary_Services.html. (Id.). Voters can also access absentee voting tutorials at https://www.ok.gov/elections/Media/Videos/index.html. (Id.). Dr. Troisi acknowledged that the witnessing and notarization requirements could be safely satisfied by utilizing proper social distancing and complying with other public health guidance. (See Tr. at 43-44).
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In addition, the information provided by Dr. Meredith established that the percentage of mailed absentee ballots that were rejected based upon missing identification verification for the most recent June 30, 2020 Oklahoma primary actually decreased from the percentages rejected in prior elections. (See PX 2 at 25, Table 2). The photocopy alternative requirement was in effect for that primary, in light of the fact that the Governor had declared an emergency, making § 3 of S.B. 210 effective for that election. Secretary Ziriax provided a general breakdown of the reasons that absentee ballots were rejected for the June 30, 2020 primary election. (See Doc. 48-2 at 49 of 74, Attachment 4). While the plaintiffs have asserted that absentee voters should merely be required to sign the ballot affidavit under penalty of perjury without being required to provide any identification, the data provided by Secretary Ziriax indicates that more absentee ballots were rejected for the June 30, 2020 primary for voters’ failures to complete or sign the affidavit (a total of 1,050) than were rejected for not providing one of the methods of identification verification (which totaled 981). (Id.). A small number of absentee returns were also rejected for envelopes in which no ballots were returned. (See id.).
Secretary Ziriax also presented evidence that the percentage of Oklahoma voters requesting and successfully returning absentee ballots that were counted actually increased in 2020 over similar primaries in 2012 and 2016. (Id. at 16-17 of 74). Dr. Meredith also acknowledged that thousands of elderly people who live alone were able to cast an absentee ballot during the pandemic. (Tr. at 115-116; PX 2 at ¶ 50).
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In states which require a signature match rather than notarization, the percentage of ballots rejected for a signature that does not appear to match is “comparable” to the percentage of ballots rejected in Oklahoma’s June 2020 primary for failure to comply with the identification requirements. (See Tr. at 101:19-23). Dr. Meredith also acknowledged significantly higher mail-in ballot rejection rates in recent primary elections (during COVID-19) in a few states that do not have notarization or witnessing requirements and in at least one state that does not have an election day receipt deadline. (See id. at 109:10110:22).
The plaintiffs’ evidence shows the number of voters in recent elections, including the June 2020 election during the COVID-19 pandemic, who did not comply with one or more requirements for absentee voting, but it does not establish which voters were unable to obtain a photocopy of an identification or obtain a notary or witnesses. The Court was not presented any evidence of any particular voter who was unable to meet the requirements, as modified by the declaration of a state of emergency.5
5 The plaintiffs provided declarations of two voters, associated with political organizations, both of whom reported voting absentee ballots in the June 2020 primary and were able to verify their absentee ballots without close contact with others. (See PX 22 [Habrock Declaration] at ¶ 22 (returned photocopy of identification); PX 23 [McAfee Declaration] at ¶ 8 (obtained a notarization from a friend on the friend’s porch). The Court also notes that the assistance that plaintiffs wish to provide their members and constituents (in connection with their challenges to the absentee ballot assistance and harvesting laws) carries similar potential risks of in-person contact or contact with shared papers (e.g. ballots or other documents).
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2. Election Day Receipt Deadline The plaintiffs further challenge Oklahoma’s mandate that mail-in absentee ballots shall be returned and received by the County Election Board “no later than 7:00 p.m. on the day of the election.” Okla. Admin. Code § 230:30-11-5(a); see also Okla. Stat. tit. 26, § 14-104. (Doc. 18 at ¶ 6). If a ballot is received after the deadline, the ballot is rejected, and a Notice of Rejection of Absentee Ballots will be mailed to the absentee voter whose ballot was received late. Okla. Admin. Code § 230:30-11-5(a). Plaintiffs assert that the election day receipt deadline is especially problematic because Oklahoma law permits voters to request absentee ballots up to 5:00 p.m. on the Tuesday preceding an election, see Okla. Stat. tit. 26, § 14-103, and recently-publicized problems with the USPS threaten to jeopardize timely mail delivery. Plaintiffs presented evidence, including the testimony of Ronald Stroman, a USPS expert, that absentee ballots not mailed a week before the election deadline may arrive too late to be counted. (See Stroman Declaration, PX 20 at ¶¶ 7-10; Tr. at 139:6 et seq.). Mr. Stroman also testified about a letter from Thomas J. Marshall, General Counsel of the USPS, dated July 29, 2020, to Secretary Ziriax regarding mailing of Oklahoma ballots. (PX 21). The letter stated that “[t]o allow enough time for ballots to be returned to election officials, domestic voters should generally mail their completed ballots at least one week before the state’s due date . . . [by] no later than Tuesday, October 27, 2020.” (Id.). Marshall further indicated that “certain state-law requirements and deadlines appear to be incompatible with the Postal Service’s delivery standards and the recommended timeframe” set forth above. (Id.). Mr. Stroman, who has extensive experience with and
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knowledge of USPS’s ability to handle and deliver election mail, testified that, given Oklahoma’s absentee voting deadlines, there is a high likelihood that thousands of ballots in Oklahoma will arrive after Election Day and will not be counted. (Tr. at 139:6-11; PX 20 at ¶¶ 10 et seq.). He expressed agreement with Marshall’s letter based on his view that Oklahoma’s statutory deadlines are “too tight.” (Tr. at 146:23 – 147:7).
Quantitative evidence of the actual impact of the election day deadline in Oklahoma during COVID-19 and in the midst of the highly-publicized 2020 issues with the USPS is mixed. For the 2018 midterm election – before COVID-19 and prior to recently reported delays and issues at the USPS – the percentage of mailed ballots that were rejected due to being received after election day was slightly greater than the percentage of ballots rejected for that reason for the June 30, 2020 primary election. (See PX 2 at ¶ 62 and Table 5). In the June 30, 2020 primary election, 2,385 Oklahoma absentee ballots were rejected because they were received after Election Day. (Tr. at 78:7-14). That amounted to approximately 2.4 percent of the total mailed ballots received for that election. (Id.). While that percentage is greater than some prior presidential and midterm elections, it is actually slightly less than the percentage received after election day for the 2018 midterms, such that it does not appear that COVID-19 or the recent postal problems have had a negative impact upon the percentage of ballots received late. (See PX 2 at ¶ 62 and Table 5).
On the evidence provided, it is unclear whether ballots that were rejected because they were received after election day were postmarked before election day, making it difficult to determine whether or not some rejected ballots were mailed after election day. (See id.; see also id. at ¶ 64 [data included identity of “each person who requested a mail
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ballot, the type of mail ballot, the date a mail ballot was sent to a voter, and the date the county received the mail ballot, if returned, for the June 30, 2020 statewide primary,” but did not include whether the ballot was postmarked]). As Dr. Meredith acknowledged:
Q. So using that experience as a starting point, if the court were to extend the Election Day Receipt Deadline by three days, what percentage of ballots that were rejected in June would be saved?
A. I can’t give the exact number because the data provided by the defendants to me didn’t contain the postmark, so I can’t tell you that all of the ballots would be counted because some might have been received after Election Day because they weren’t postmarked in time. . . .
(Tr. at 82:15-23). The plaintiffs argue that the likelihood of absentee ballots not being returned on
time is compounded because Oklahoma law allows voters to request absentee ballots up to a week before Election Day. See Okla. Stat. tit. 26, § 14-103. While that expands the timeframe for requesting a ballot, voters can request a ballot much earlier, may receive their ballots up to 45 days before the election, and return them by mail well in advance of the deadline to be delivered to the County Election Board to be counted. In addition, voters who may decide one week before election day that they wish to vote by absentee ballot may do so with the intent to hand deliver the ballot in-person to the County Election Board up to the end of business hours the day before the election. See Okla. Stat. tit. 26, §§ 14104, 14-108. In light of these available options, the receipt deadline constitutes no more than a minimal burden on voters, including those who wait until seven days before the election to request an absentee ballot.
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Secretary Ziriax testified that, if county election officials were required to count two or three thousand additional ballots on the Friday after the Tuesday election, in addition to the provisional ballots which they count on Friday, they would do so because they are known for working however many hours are required to count ballots before the Friday county certification deadline. (PX 15 at 106:16-107:9; see id. at 56:11-18).
The defendants assert that state interests justify the rejection of ballots received after election day. The state claims that such interests include an “interest in orderly elections and promoting voter confidence in the election” and that the deadline is “necessary specifically for the General Election in November because the State Legislature’s terms expire the fifteenth day after the November election every two years.” (Defendants’ proposed findings and conclusions, Doc. 54 at ¶¶ 270, 274; see also id. ¶ 136). These interests are significant. Specifically, state law requires that county election boards certify election results by the Friday following Tuesday election day, and the State Election Board must certify the statewide results by the Tuesday after election day. Okla. Stat. tit. 26, § 7-136. The plaintiffs recognize that, if the Court grants the requested relief of delaying the election day receipt deadline by seven days, the Court would also have to delay the county and state certification deadlines by a week. However, such delays would leave only 24 hours before the new members of the State House of Representatives are seated. (See Okla. Stat. tit. 14, § 137; Doc. 48-2 at ¶ 32). The remedy requested by the plaintiffs would require numerous judicial-modifications of Oklahoma legislation, which the Court is disinclined to do because of the disruption to the State’s overall electoral process.
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The Court shares Mr. Stroman’s and the plaintiffs’ concerns that many absentee
ballots mailed days before the election may be received after the election day deadline and
will not be counted. However, the plaintiffs’ proposed remedy would risk severely
interrupting Oklahoma’s election processes. Specifically, the plaintiffs request that the
Court enjoin enforcement of the election day receipt requirement and mandate that election
officials count every ballot received up to seven days after election day, so long as the
ballot is not postmarked after election day:
Defendants, their respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them, are hereby enjoined from rejecting ballots that are postmarked by the day of an election and arrive at their respective county election board within seven days of election day. For the purposes of this Order, postmark shall refer to any type of imprint applied by the United States Postal Service to indicate the location and date the Postal Service accepts custody of a piece of mail, including bar codes, circular stamps, or other tracking marks. Where a ballot does not bear a postmark date, the election official reviewing the ballot should presume that it was mailed on or before Election Day unless the preponderance of the evidence demonstrates that it was mailed after Election Day. Defendant shall instruct all relevant local election officials to count all absentee mail ballots that are otherwise validly cast and postmarked on or before Election Day so long as they are received within seven days of election day. The county certification deadline of the Friday after Election Day and the state certification deadline of the Tuesday after Election Day shall be extended for such amount of time as is needed for all absentee mail ballots that are otherwise validly cast and postmarked on or before Election day to be counted.
(Plaintiffs’ Proposed Injunction Order, ¶ 4). The requested remedy would not only require
a presumption that un-postmarked ballots were actually mailed before election day, but
would also require that the Court judicially extend the county and state election
certification deadlines beyond a week after the election. (See id.).
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Dr. Meredith’s testimony supports a less dramatic remedy. His analysis of ballots received after the June 30 primary election indicated that, of the 2,399 ballots that were rejected for being received late, 1,730 (more than 72%) were received the day after the election and 302 (more than 12.5%) were received two days after election day. (PX 2 at ¶ 64). Such data “show that even a modest extension of the deadline for receiving mail ballots would have” resulted in the vast majority of 2,399 late received ballots being counted. (Id.). However, even that remedy would require the Court to fashion a somewhat arbitrary deadline and, if the percentages for the November general election turn out to be similar, that less drastic remedy would still not result in every late-received vote being counted.
The Court has serious concerns that the plaintiffs’ requested remedy – imposing a presumption that a ballot without a postmark was postmarked by election day and requiring that such vote be counted if received up to a week after election day – would present a significant risk of voting fraud. Under that proposal, ballots could be mailed after election day and would be counted. As a result, the Court finds that remedy to be untenable and unreasonably risky. It appears that plaintiffs may have viewed the requested presumption necessary in light of Mr. Stroman’s testimony that the USPS may “skip processing” of ballots in states (like Oklahoma) that do not depend on a postmark, in an effort to speed up delivery of absentee votes to county election officials:
What the Postal Service tries to do, we really – at least when I was there – we really tried to work with boards of election because ... we understood these time frames were much too tight. So sometimes what we would do is that we would skip the processing step. Now, this is totally inconsistent with Postal Service operations policy. And we’ve had a debate about whether you do that, because once you start to go around the process, mistakes invariably get made. But in an effort to help some states, we skip the processing step –
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we’ll get a postmark if you need a postmark – now, if you don’t need a postmark, you know, you don’t, but we skip the processing step and go right to the board of election. (Tr. at 149:5-18, emphasis added). Because Oklahoma has for years required that ballots be “received” by election day, rather than “postmarked” by election day, Mr. Stroman’s testimony (and the plaintiffs’ proposed presumption) indicate that the USPS may at times deliver absentee ballots without processing or postmarking those ballots. A last-minute change of Oklahoma’s “receipt” deadline to a “postmark” deadline would potentially result in the rejection of more absentee ballots, because those received after election day where the USPS “skipped processing” and did not include a postmark would be rejected. The USPS would have little time to ensure that all of its staff understood the required sea-shift in handling of Oklahoma absentee ballots. Based upon the evidence, the Court finds that requiring the counting of ballots received after election day would risk serious interruption in the Oklahoma electoral process, would not necessarily result in the counting of all ballots mailed before election day, and could even result in an increase in the number of ballots that would be rejected. 3. Criminalization of Absentee Ballot Assistance and Collection Plaintiffs argue that statutes enacted for the first time effective May 21, 2020 unconstitutionally burden the right to vote and violate constitutional rights to speech and association. (Doc. 18 at ¶ 151, Count IV). Relevant statutes (a) define “absentee ballot harvesting,” Okla. Stat. tit. 26, § 14-101.1, (b) make it “a felony for any person to engage in or to conspire to engage in absentee ballot harvesting... involving ten or more absentee
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ballots” in any election, id., § 16-104.1, and (c) render such conduct a misdemeanor where fewer than ten absentee ballots are “harvest[ed],” id., § 16-126. (See Doc. 47 at 10 of 35). “Ballot harvesting” is defined as follows:
1. Collecting or obtaining an absentee ballot from another person with the intent to submit, transmit or return the ballot to election officials on behalf of that person; 2. Submitting, returning or transmitting an absentee ballot to election officials on behalf of another person; 3. Collecting or obtaining an absentee ballot from another person under a false pretense or promise of transmitting, returning or submitting it to election officials on behalf of that person; 4. Requesting or receiving an absentee ballot on behalf of another person; 5. Partially or fully completing an application for an absentee ballot on behalf of another person without that person's prior consent; or 6. Notarizing or witnessing more absentee ballots than allowed by law. Okla. Stat. tit. 26, § 14-101.1(A). Actions that would otherwise be ballot harvesting are “not ... deemed to be ballot harvesting” when done by certain classes of people, including (1) a voter’s assistant or agent acting pursuant to Title 26, (2) absentee voting board members who assist voters confined to nursing homes or veterans centers, (3) employees of the Federal Voting Assistance Program, the U.S. Department of Defense or the Oklahoma National Guard who assist uniformed-services voters in returning or transmitting absentee ballots, (4) “a spouse, relative in the first or second degree of consanguinity or affinity or cohabitant of a voter who forwards an absentee ballot to the voter when absent from the home,” (5) “a voter’s
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spouse who, with the voter’s consent, returns the voter’s absentee ballot by mail,” or (6) “an official action by an election official that is required or authorized by law.” Id., § 14101.1(B). In addition, a person’s “gifting of an envelope, stamp, or both an envelope and a stamp for the purpose of mailing in a ballot” is permissible. See Okla. Stat. tit. 26, § 16106.
According to the plaintiffs, those statutes will burden voters who may have difficulty returning their ballots themselves, and organizations like the plaintiffs should be permitted to help voters request and return their absentee ballots without threat of prosecution. Defendants respond that voters who are physically incapacitated may utilize an agent who is at least 16 years of age to apply for an absentee ballot, who will be the person’s agent for that election. See Okla. Stat. tit. 26, § 14-110.1.6 Under more limited circumstances, an agent for a voter who becomes physically incapacitated in the week before election day may return the principal’s ballot. See id., § 14-115.1. There are also exceptions for an absentee voting board member who assists a voter confined to a nursing home or veterans’ center; and for an election official taking official action authorized by law. Id., § 101.1(B)(2), (3).
6 Oklahoma expanded the definition of physically incapacitated to include any voter who: (1) has tested positive for COVID-19 and is receiving medical treatment or is subject to a quarantine ordered by the voter’s personal physician or the county health department; (2) has been tested for COVID-19 and is quarantined or self-isolating while awaiting results; (3) has symptoms of COVID-19 and has been advised to quarantine or self-isolate; (4) is a member of a group considered at “higher risk of severe illness due to age or underlying health conditions as defined by the CDC” and is thus subject to a “stay at home” or “safer at home” or similar order; and (5) has received a written recommendation from his or her personal physician that due to an underlying health condition the voter should not leave his or her home due to the pandemic. SB 210, 2020 Okla. Sess. Laws 10, § 3(C).
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The plaintiffs submitted declarations of Lani Habrock, who is the Government Affairs Director of Counsel on American-Islamic-Relations – Oklahoma (CAIR-OK) (PX 22), Nicole McAfee, the Director of Policy and Advocacy at the American Civil Liberties Union (ACLU) (PX 23), Jacqui Newman, the Deputy Executive Director and Chief Operating Officer for plaintiff DCCC (PX 24), and Alicia Andrews, the Chair of plaintiff ODP (PX 25). Ms. Andrews was also deposed. (PX 26). The plaintiffs cite the testimony and declarations of those witnesses as supporting their claims that the Oklahoma statutes criminalizing absentee ballot harvesting and requests (1) burden absentee voters (see, e.g., PX 22 ¶ 17; PX 23 ¶ 15; PX 24 ¶¶ 10, 12; PX 25 ¶¶ 9-10) and (2) violate the plaintiffs’ speech and association rights. (See, e.g., PX 24 at ¶¶ 9-12; PX 25 at ¶¶ 8-10; PX 26 at 55:4-6, 56:9-15, 57:9-24). For example, plaintiffs assert that, if the Court were to enjoin those provisions, third party assistants and political organizations could assist voters with requesting absentee ballots, which “could have the additional effect of decreasing the number of ballots that are requested at the last minute, easing administrative burdens, and decreasing the chances that a voter will be disenfranchised by a late-arriving ballot.” (Plaintiffs’ proposed findings and conclusions, ¶ 56).
The Court finds that the challenged ballot harvesting and assistance laws constitute no more than a minimal burden on a voter’s right to vote. In addition, the laws prohibit specific conduct and do not appear to prohibit or criminalize the plaintiffs’ speech, voter education efforts or publications, or efforts to get out their members’ votes.
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4. Postage The plaintiffs challenge the state’s “refusal to prepay for postage to return completed absentee ballots” (Doc. 18 at ¶ 6). According to the plaintiffs, the state’s refusal to pay for postage burdens voters and amounts to an unconstitutional poll tax. (Id. at ¶¶ 154-155). In response, the defendants note that the state is not collecting or imposing any tax upon a voter’s right to vote, because the post office collects any revenue from postage. In addition, the defendants note that the cost of obtaining postage is minimal, and Oklahoma law now expressly permits the gifting of stamps and envelopes for purposes of assisting voters with returning absentee ballots. Okla. Stat. tit. 26, § 16-106. F. The State’s Asserted Interests The defendants assert that the state’s interests in preventing voter fraud justify the absentee ballot identification requirements and absentee ballot harvesting prohibitions. They provided a declaration of Kimberly W. Strach, who has over 19 years of education, experience, and professional training in election administration, compliance, and fraud investigations in the State of North Carolina. Ms. Strach cited a September 2005 report of the Commission on Federal Election Reform, which was co-chaired by former President Jimmy Carter and former Secretary of State James A. Baker III. Among the Commission’s determinations and recommendations was a concern that, “because it takes place outside the regulated environment of local polling locations, voting by mail creates increased logistical challenges and the potential for voter fraud, especially if safeguards are lacking or when candidates or political party activists are allowed to handle mail-in or absentee
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ballots.” (Doc. 48-5 at ¶ 43; see also May 6, 2020 Carter Center Statement on Voting by Mail for 2020 U.S. Elections).
Ms. Strach also cited the 2005 Report authors’ specific concerns of blank ballots mailed to the wrong address or to large residential buildings, pressure or intimidation being exerted upon those who vote outside of the polling place, and economically-downtrodden voters being susceptible to vote-buying schemes. (Id. at ¶ 45). The portion of the 2005 report referenced by Ms. Strach indicated that “[a]bsentee ballots remain the largest source of potential voter fraud,” citing absentee ballot fraud in a 1998 Miami mayoral election, which was declared fraudulent and required a new election, as well as other concerns.
The defendants argue that notary or witness signatures help protect vulnerable voters by ensuring a known neutral observer prevented coercion of the absentee voter. (See Doc. 48-2 at ¶¶ 26-27; Doc. 48-5 at ¶¶ 36, 48-55). They also maintain that the identification verification requirements, including the alternative of providing a copy of permissible identification, make it harder to commit voter fraud, and make it easier for the state to detect fraud and determine the extent of any such fraud, because the discovery of any fraud can lead to the detection of other fraud. (See Doc. 48-2 at ¶¶ 26-28, Doc. 48-5 at ¶¶ 28-30, 35). Plaintiffs’ expert, Dr. Meredith, agreed with Ms. Strach’s opinion that the witness requirement in North Carolina “was helpful in the prosecution of that case” of voter fraud. (Tr. at 88:18-20). However, Dr. Meredith pointed out that the witness requirement was not the reason that the fraud was initially detected, nor did the requirement in North Carolina deter the fraud. (Id. at 88:21-25).
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The defendants identified a number of examples of voter fraud in Oklahoma, one of which occurred almost 40 years ago, another in 1956, and a handful of other more recent examples. (See Doc. 48-2 at ¶ 22; PX 15 at 102-105). Other instances cited by the defendants involved allegations of fraud by people in other states who forged mail-in ballots that were mailed to a prior resident of the household or a ballot addressed to a dead relative or tenant (see Doc. 48-6 at 44-45, 84, 86, 88), returned multiple absentee ballots that had been stolen (id. at 55-56), or allegedly took, forged, and returned ballots of elderly voters (id. at 60-61). Ms. Strach also provided details of recent absentee voter fraud in North Carolina during the time she was employed by the North Carolina State Board of Elections (see Doc. 48-5 at ¶¶ 8-13), including the 2018 North Carolina Congressional election, which involved ballot harvesting and fraud, payment for collection of absentee ballots (id. at ¶¶ 14-27), requiring a new election. While there are numerous examples of voter fraud across the nation, the Court notes that they represent an extremely minuscule percentage of the hundreds of millions of votes returned in elections in the United States in recent years.
Secretary Ziriax testified that the recent addition of Oklahoma’s “ballot harvesting” prohibitions were in part inspired by the absentee voter fraud and ballot harvesting that led to the overturning of the United States Congressional election in North Carolina in 2018. (See Doc. 48-2 at ¶¶ 23-24; see also PX 15 at 121-23). He also testified as to the reason for the limitation on the number of ballots any one notary can notarize, which was based upon a “major absentee voting scandal in Aider [sic] County about ten years ago,” which involved a notary public “who made money by guarantying a certain number of absentee
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votes at an election,” had numerous absentee ballots sent to his P.O. Box, and then notarized and returned all of them. (PX 15 at 103). He was caught after two of the voters voted in-person, after he had already returned their absentee ballots. (See id. at 104).
The plaintiffs suggest that the state’s cited concerns about voter fraud are dubious, noting that Secretary Ziriax acknowledged that he had previously stated that “voting fraud is exceptionally rare in Oklahoma and not a major issue here.” (See PX 15 at 108:6-22). However, Ziriax testified to his belief that voter fraud in Oklahoma is exceptionally rare because of “the protections that are provided under Oklahoma law for in-person voting ... [and the] protections that are in place for absentee voting including the verification of the ID of a voter and the chain of custody law....” (Id. at 108:16-22).
While voter fraud has in recent years been exceptionally rare in Oklahoma, that may well be due to the Oklahoma voter identification requirements that have been in place for several years, mandating that in-person voters show identification and absentee voters verify their ballots by obtaining a notary signature. Without any identification requirement placed upon absentee voting, there would be much less of a deterrent to a person who wishes to forge and return another’s ballot by mail, as the ability to detect such fraud would be significantly reduced. In contrast, a person wishing to vote another person’s ballot would have to engage in much riskier behavior to do so in-person, where they would have to appear in public, before trained election officials, where there may be video cameras, where they will have to provide a photo identification matching the name of the person for whom they are fraudulently trying to cast a ballot, and where they will face a risk that they provide a name of a voter who has already voted and signed the voting log for that election,
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and thus be detected on-the-spot. In other words, the 2005 Commission’s concern that “[a]bsentee ballots remain the largest source of potential voter fraud” seems not only logical, but extremely likely, especially if the Court were to eliminate any identification requirement for absentee mail-in ballots, while in-person voting requires identification.
A concern for in-person voter fraud, which as noted seems much more risky to the perpetrator and thus much less likely to be perpetrated than mail-in voter fraud, was a weighty enough state interest to justify an Indiana voter identification requirement upon in-person voters. See Crawford v. Marion County Election Bd., 553 U.S. 193, 195-197 (2008) (“There is no question about the legitimacy or importance of the State’s interest in counting only the votes of eligible voters. Moreover, the interest in orderly administration and accurate recordkeeping provides a sufficient justification for carefully identifying all voters participating in the election process. While the most effective method of preventing election fraud may well be debatable, the propriety of doing so is perfectly clear.”). While the Court finds that concerns about voter fraud in Oklahoma may be overstated in light of the exceeding rarity in Oklahoma history, those concerns are legitimate and weighty.
II. CONCLUSIONS OF LAW A. Standing
The defendants argue that the two organizational plaintiffs, the DCCC and the ODP, do not have standing with respect to the challenged Oklahoma absentee ballot provisions. There are no individual plaintiffs. The DCCC and ODP assert that they have direct organizational, as well as associational, standing to challenge Oklahoma election laws.
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Because standing is jurisdictional, it must be addressed first. Dine Citizens Against Ruining Our Environment v. Bernhardt, 923 F.3d 831, 840 (10th Cir. 2019).
Article III of the United States Constitution restricts federal jurisdiction to “cases” or “controversies.” U.S. Const. art. III, § 2, cl. 1. To satisfy the case or controversy requirement, a plaintiff must generally demonstrate standing by establishing (1) an injury in fact, (2) a sufficient causal connection between the alleged injury and the conduct complained of, and (3) a likelihood that the injury “will be redressed by a favorable decision.” Fish v. Schwab, 957 F.3d 1105, 1117 (10th Cir. 2020) (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157-58 (2014). “‘Put simply, a plaintiff must establish three elements: an injury-in-fact, causation, and redressability.’” Id. (quoting Bronson v. Swensen, 500 F.3d 1099, 1106 (10th Cir. 2007)).
1. Direct Organizational Standing As noted in the above factual findings, the ODP consists of all Oklahoma registered voters who declare themselves Democrats, and its mission is to elect Democrats to office and to educate voters. As a result, ODP has an interest in ensuring that its voters have an opportunity to vote for Democratic Party candidates, and ODP expends significant resources in voter education and Get Out The Vote efforts to encourage Oklahomans to vote. The ODP represents that, due to the importance of absentee voting during the COVID-19 pandemic, it has diverted resources from its regular efforts and programs to address issues relating to Oklahoma’s absentee voting system. These facts provide a basis for direct organizational standing for the ODP. The facts are similar to the types of organizational harm that were found to support organizational
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standing in numerous cases. For example, in Crawford v. Marion County Election Board, 472 F.3d 949, 951 (7th Cir. 2007), the Seventh Circuit determined that the Democratic Party had standing to challenge Indiana’s photo identification law. In determining that the party had standing, the court noted that “the new law injures the Democratic Party by compelling the party 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.” Id. The court further noted that “[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. Upon review on certiorari, the Supreme Court agreed that the Democratic Party had standing. Crawford, 553 U.S. 181, n.7 (2008) (“We also agree with the unanimous view of [the Seventh Circuit] that the Democrats have standing to challenge the validity of [Indiana’s photo ID law].”).
Other courts have found organizational standing to challenge election laws. See, e.g., DSCC and DCCC v. Simon, No. 62-CV-20-585, 2020 WL 4519785, at *17 (Minn. Dist. Ct. July 28, 2020) (holding DCCC had standing to challenge law prohibiting voter assistance, which forced it to divert resources, even though DCCC already engages in voter outreach); Democratic Nat’l Comm. v. Reagan, 329 F. Supp. 3d 824, 841 (D. Ariz. 2018) (finding that plaintiffs DNC, DSCC, and the Arizona Democratic Party had direct organizational standing to challenge certain election laws because those laws would require them “to retool their GOTV strategies and divert more resources to ensure that [their voters are able to vote]”), aff’d, 904 F.3d 686 (9th Cir. 2018), rev’d on other grounds and remanded sub nom. Democratic Nat’l Comm. v. Hobbs, 948 F.3d 989 (9th Cir. 2020)
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(en banc); Democratic Nat’l Comm. v. Bostelmann et al., No. 3:20-cv-00249-wmc, 2020 WL 1320819, at *3 (W.D. Wis. Mar. 20, 2020) (holding that the DNC and the Democratic Party of Wisconsin had established direct organizational standing because the challenged elections laws “will require them to expend additional resources to assist their members and constituents to overcome these burdens to exercise their right to vote”); see also generally Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-379 (1982) (allegations that housing steering practices impaired organization’s ability to provide counseling and referral services for certain home seekers and a consequent drain on the organization’s resources constituted “more than simply a setback to the organization’s abstract social interests,” and therefore supported organizational standing).
In addition, the ODP challenges the voter assistance and ballot harvesting provisions, which criminalize behavior that ODP itself would like to engage in to assist the organization’s voters, especially during the pandemic. The ODP challenges those laws on the basis of its own First Amendment rights, and therefore has direct standing to challenge those provisions. See, e.g., Priorities USA v. Nessel, 2020 WL 2615766 *18 (E.D. Mich. May 22, 2020) (plaintiff had standing to challenge statute prohibiting assisting voters with absentee ballots); Simon, 2020 WL 4519785, *7-11 (DCCC had adequately pled direct organizational standing to assert claims of speech infringement due to laws prohibiting voter assistance in ballot return).
Based on the foregoing, the ODP has direct organizational standing to pursue the challenges to the Oklahoma absentee ballot laws at issue in this case. Because this case seeks only injunctive relief, the Court need not address standing of the other plaintiff. See
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Crawford, 472 F.3d at 951 (“Only injunctive relief is sought, and for that only one plaintiff with standing is required” such that the standing of the other plaintiffs “need not be addressed”); Arizona Democratic Party v. Hobbs, ___ F. Supp. 3d __, 2020 WL 5423898, *5 (D. Ariz. Sept. 10, 2020) (“Only one plaintiff needs standing when, as here, only injunctive relief is sought.”).
2. Associational Standing The plaintiffs also argue that they have associational standing to pursue claims on behalf of their members. “When, as here, an organization sues on behalf of its members, the organization has standing if: ‘(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.’” Dine Citizens, 923 F.3d at 840 (quoting Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977)). With respect to the requirement that the ODP’s members would otherwise have standing to sue in their own right, a plaintiff has direct standing if “(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 action; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. (quoting Friends of the Earth v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). Based on the evidence in the record, the Court concludes that the ODP has associational standing to challenge the Oklahoma absentee ballot statutes at issue in this case. The interests the ODP seeks to protect are germane to the organization’s purpose of
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getting out the votes of its members, and the relief requested and claims asserted do not require the presence of individual members. The plaintiffs have alleged particularized, imminent disenfranchisement or undue burdens upon their member voters’ rights to vote, which are fairly traceable to the election laws with which Secretary Ziriax is charged with enforcing.
The plaintiffs have presented evidence that, due to the COVID-19 pandemic, a record number of Oklahoma voters, including Democratic voters, are expected to want to forego the risks of in-person voting during the upcoming November general election. They have also presented evidence of a significant number of Oklahoma voters’ absentee ballots that have been rejected due to the identification requirements and election day receipt deadline. Standing has been found in similar circumstances. See, e.g., Hobbs, 2020 WL 5423898, *5 (finding the Arizona Democratic Party had standing to sue to challenge an election day deadline on behalf of its members); Reagan, 329 F. Supp. 3d at 841 (Plaintiffs DNC, DSCC, and the Arizona Democratic Party had associational standing to challenge claims on behalf of their constituents who would be burdened by Arizona’s ballot collection ban); Bostelmann, 2020 WL 1320819 at *3 (DNC and the Democratic Party of Wisconsin had standing to sue on behalf of their members); Simon, 2020 WL 4519785 at *11 (DCCC had adequately pled associational standing on behalf of its “members, constituents, canvassers, and volunteers” who were allegedly harmed by Minnesota’s law prohibiting voter assistance); Texas Democratic Party v. Hughs, No. SA-20-CV-08-OG, 2020 WL 4218227, at *4-*5 (W.D. Tex. July 22, 2020) (Texas Democratic Party and
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DCCC had adequately alleged associational standing on behalf of their members allegedly harmed by Texas’s voter registration laws). B. Standards Applicable to Permanent Injunctions
To obtain a permanent injunction, a party “must prove: (1) actual success on the merits; (2) irreparable harm unless the injunction is issued; (3) the threatened injury outweighs the harm that the injunction may cause the opposing party; and (4) the injunction, if issued, will not adversely affect the public interest.” Southwest Stainless, LP v. Sappington, 582 F.3d 1176, 1191 (10th Cir. 2009). C. Actual Success on the Merits: Plaintiffs’ Constitutional Challenges to
Oklahoma Absentee Ballot Provisions 1. The Anderson-Burdick Balancing Test The plaintiffs challenge all of the absentee ballot-related provisions under the First and Fourteenth Amendments to the United States Constitution. “The right to vote is ‘a fundamental political right, ...preservative of all rights.’” Fish, 957 F.3d at 1121-22 (citation omitted). “‘No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.’” Id. (quoting Wesberry v. Sanders, 376 U.S. 1, 17 (1964)). The First and Fourteenth Amendments prohibit states from placing burdens on citizens’ right to vote that are not reasonably justified by “important regulatory interests.” Anderson v. Celebrezze, 460 U.S. 780, 788-89 (1983); see also Burdick v. Takushi, 504 U.S. 428, 434 (1992). However, the
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right to vote in any manner is not absolute. Burdick, 504 U.S. at 433. States may generally prescribe the times, places, and manner of holding elections. Id.
There is no “litmus test” or “bright line” separating regulations that properly impose order from those that unduly burden it. Fish, 957 F.3d at 1122 (quoting Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997) and Crawford, 553 U.S. at 190). Instead, the courts considering such election law challenges are to apply a balancing test under Anderson and Burdick, which requires that the court “weigh ‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate’ against ‘the precise interests put forward by the state as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’” Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789).
The Circuits have referred to the balancing as involving a “sliding scale” test, where “the more severe the burden imposed, the more exacting [the court’s] scrutiny; the less severe, the more relaxed [the court’s] scrutiny.” Fish, 957 F.3d at 1124 (quoting Ariz. Libertarian Party v. Hobbs, 925 F.3d 1085, 1090 (9th Cir. 2019)). No matter how “slight” the burden on voting rights “may appear,” “it must be justified by relevant and legitimate state interests ‘sufficiently weighty to justify the limitation.’” Crawford, 553 U.S. at 191.
2. Identification / Verification Requirement Based upon the evidence, the Court concludes that the witness identification requirements have the potential to impose some burden on Oklahoma voters who wish to vote by absentee ballot. Those burdens are somewhat heightened for absentee voters who
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are strictly heeding expert medical and epidemiological advice to keep a distance from others. However, the State’s alternative means (a copy of identification) for completion and return of an absentee ballot, and its partnering with numerous banks and credit unions to provide free, drive-thru photocopy and notarization service, reduce the likelihood that the alternative means of identification verification will impose more than a minor burden upon the plaintiffs’ proposed hypothetical Oklahoma voter wanting to vote by absentee ballot due to legitimate and serious concerns about the pandemic. Moreover, the evidence established that there are socially-distanced methods of ballot verification under the Oklahoma requirements.
The plaintiffs’ challenges to Oklahoma’s absentee ballot identification requirement are presented in the context of the COVID-19 pandemic. If the notarization and twowitness requirements were the only means of identification during the COVID-19 pandemic, those requirements would undoubtedly be more burdensome to potential absentee voters. However, given the declaration of a state of emergency, enacting the alternative photocopy means by which a potential voter can validate identification for an absentee ballot, the Court considers any burden to be minor rather than substantial. For voters who do not have access to a copier at home, a friend, family member, or neighbor can assist in obtaining a copy of a voter’s identification card, and that can be done without close, in-person contact. The plaintiffs have not presented any evidence of any voter who will be unable to vote during the pandemic using one of the alternative means of identification verification on the absentee ballot. The mere possibility that the burden may be greater on a small subset of voters does not entitle the plaintiffs to the sweeping relief
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they seek here. See Crawford, 553 U.S. at 199-200 (noting higher relative burdens to some voters, with most voters apparently able to comply with the photo identification requirement or other available options, did not entitle plaintiffs to relief sought).
As set forth in the above Findings of Fact, the state’s interest in preventing voter fraud is sufficiently weighty to justify the alternative requirements for a voter to verify her identity on her absentee ballot. See Crawford, 553 U.S. at 195-197 (“There is no question about the legitimacy or importance of the State’s interest in counting only the votes of eligible voters. Moreover, the interest in orderly administration and accurate recordkeeping provides a sufficient justification for carefully identifying all voters participating in the election process. While the most effective method of preventing election fraud may be debatable, the propriety of doing so is perfectly clear.”). While voter fraud has in recent years been exceptionally rare in Oklahoma, Secretary Ziriax testified to his belief that the rarity was due at least in part to Oklahoma’s voter identification requirements, which have been in place for several years, mandating that in-person voters show identification and absentee voters verify their ballots by obtaining a notary signature. In addition, the Court noted in its above findings that, without any voter identification requirement (the relief the plaintiffs request), the risk of potential voter fraud using absentee ballots undoubtedly increases. As the Supreme Court noted in Crawford, 553 U.S. at 191, a state’s “interest in deterring and detecting voter fraud” is “unquestionably relevant to the State’s interest in protecting the integrity and reliability of the electoral process.”
Finally, the data available from the June 30, 2020 primary, which was conducted during the COVID-19 pandemic and with the emergency procedures in place (as will be
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the case with the November 2020 general election), do not support a conclusion that the alternative requirements imposed a substantial burden. The data showed that voter participation increased during that primary, rejection rates for failure to comply with the identification requirements decreased as compared to recent general elections, few votes (0.14%) were rejected for failure to comply with the identification requirements, less than the number of ballots rejected for failing to complete the ballot affidavit that the plaintiffs assert should be the only step required to verify a ballot. (See Doc. 48-2 at ¶¶ 34-35).
The record does not include evidence that any particular voter was unable to comply, or indicate why there was any alleged inability to comply with the alternative means of verifying an absentee ballot (notary or a copy of identification) or incapacitated absentee ballot (two witnesses or a copy of identification). The Court notes that the state’s interests, as well as the identification laws themselves, are reasonable, nondiscriminatory, and legitimate. See Crawford, 553 U.S. at 185. Those interests in preventing and having a means of detecting voter fraud are sufficiently weighty to justify the relatively minor burden imposed on absentee voters in the November election as a result of the identification requirements.
The Supreme Court has shown reluctance to interfere with state election requirements and officials during the pandemic. For example, the Supreme Court stayed a district court preliminary injunction that, inter alia, halted Alabama’s absentee ballot verification laws, which are stricter than Oklahoma’s because they require voters to both include a photocopy of their ID and have it notarized or witnessed. Merrill v. People First of Alabama, No. 19A1063, 2020 WL 3604049, at *1 (July 2, 2020); see also Republican
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Nat’l Comm. v. Common Cause RI, No. 20A28, 2020 WL 4680151, at *1 (Aug. 13, 2020) (declining to stay decision of “state election officials [to] support the challenged decree”); Republican Nat’l Committee v. Democratic Nat’l Committee, __ U.S. __, 140 S. Ct. 1205, 1207 (April 6, 2020) (staying district court preliminary injunction that required state to count absentee ballots postmarked after election day and noting that the “Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.”). This Court is similarly reluctant to upend Oklahoma’s absentee ballot and election system where the evidence does not establish more than a minor burden on voters and the requested changes would potentially impact the integrity of the election.
3. The Election Day Receipt Deadline The evidence does not support an alteration of Oklahoma’s election day receipt deadline. The evidence is mixed, given that it is unclear whether ballots received after election day for the June 30 election were postmarked before the election deadline or were mailed after election day. The plaintiffs did not establish that any voters were or will be actually unable to request and return absentee ballots by the election day receipt deadline. It seems likely that there will be ballots that are not counted because some voters may not request a ballot until a week before the election and/or may not mail their ballot back with sufficient time to be received by the election day deadline. However, the State has provided alternatives that significantly reduce that potential burden and risk, because State law permits the return of an absentee ballot in-person up to the day before the election, and a voter can avoid problems with mail delay by requesting a ballot 45 days before the election
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and timely completing and returning it to ensure that it arrives before the election day deadline.
Because the State offers voters wishing to vote by absentee ballot options to ensure their votes are timely returned, voters who fail to ensure timely return of their ballots should not blame the law for their inability to vote. See, e.g., Thomas v. Andino, No. 3:20CV1552, 2020 WL 2617329, at *26 (D.S.C. May 25, 2020) (quoting Rosario v. Rockerfeller, 410 U.S. 752, 758 (1973)). The Supreme Court similarly observed that voters who wait weeks into absentee voting and request a ballot at the last minute are suffering the typical burden of a late-requesting voter, not a burden imposed by state law. See Republican Nat’l Comm., 140 S. Ct. at 1207. An absentee voter is responsible for acting with sufficient time to ensure timely delivery of her ballot, just as a voter intending to vote in-person must take appropriate precautions by heading to the polls with a sufficient cushion of time to account for traffic, weather, or other conditions that might otherwise interfere with their ability to arrive in time to cast a ballot.
To the extent that the plaintiffs’ claim that the timing issue is compounded by state law permitting voters to request an absentee ballot up to one week before the election – which allows a voter less time to timely return a ballot by mail – a remedy changing the deadline for seeking an absentee ballot to two weeks before the deadline would make more sense, and potentially result in fewer rejected ballots, than the relief requested by the plaintiffs. However, the Court has not been asked to provide such a remedy, and does not conclude that it would be justified, as it could result in cutting off people who, for personal reasons, decide seven or eight days before the election that they will not be able to vote in-
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person on election day and thus wish to vote by absentee ballot hand-delivered by the day
before the election.
A “generally applicable deadline that applied to all would-be absentee voters would
likely survive the Anderson-Burdick analysis, even if it resulted in disenfranchisement for
certain. . . individuals.” Mays v. LaRose, 951 F.3d 775, 792 (6th Cir. 2020). As the Tenth
Circuit has observed, any deadline “will invariably burden some voters. . . for whom the
earlier time is inconvenient,” but these burdens are assessed in light of “a state’s legitimate
interest in providing order, stability, and legitimacy to the electoral process.” Utah Republican Party v. Cox, 892 F.3d 1066, 1077 (10th Cir. 2018).7
Whereas the burden of the election day receipt deadline is minimal, the State has
established sufficiently weighty interests that justify the deadline, such that the law is not
unconstitutional under the Anderson-Burdick balancing test. The deadline “eliminates the
problem of missing, unclear, or even altered postmarks, eliminates delay that can have
adverse consequences, and eliminates the remote possibility that in an extremely close
7 Similar to Oklahoma, the following states require that absentee or mail-in ballots must be received by or before election day: Alabama, Ala. Code § 17-11-18; Arizona, A.R.S. § 16-547; Arkansas, Ark. Code Ann. § 7-5-411; Colorado, Colo. Rev. Stat. § 1-7.5107; Delaware, Del. Code Ann. tit. 15, § 55-5508; Florida, Fla. Stat. Ann. § 101.67; Hawaii, Haw. Rev. Stat. § 15-9; Idaho, Idaho Code § 34-1005; Kentucky, Ky. Rev. Stat. § 117.086(1)(b); Maine, Me. Stat. tit. § 21-A, § 755; Michigan, Mich. Comp. Laws § 168.764a (Step 6); Missouri, Mo. Ann. Stat. § 115.293(1); Montana, Mont. Code Ann. § 13-13-232, Nebraska, Neb. Rev. Stat. Ann. § 32-950; New Hampshire, N.H. Rev. Stat. § 657:22; New Mexico, N.M. Stat. Ann. § 1-6-10; Oregon, Or. Rev. Stat. § 253.070; Rhode Island, R.I. Gen. Law § 17-20-8; South Carolina, S.C. Code § 7-15-420; South Dakota, S.D. Codified Laws, § 12-19-12; Tennessee, Tenn. Code Ann. § 2-6-304; Vermont, Vt. Stat. Ann., tit. 17, § 2543; Wisconsin, Wisc. Stat. § 6.87(6); and Wyoming, Wyo. Stat. Ann. § 22-9-119.
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election … a person who did not vote on or before election day can fill out and submit a ballot later.” Nielsen v. DeSantis, No. 4:20CV236, Doc. 332 at 3 (N.D. Fla. June 24, 2020). The deadline also secures voter confidence in the election: voters become less sure of the results if a candidate is declared a winner on or shortly after election day, but the results are changed several days or a week later. (See Doc. 48-2 at ¶ 37). As noted, alteration of the deadline as the plaintiffs request would likely impact the beginning of, or preparation for, the State Legislature’s new terms, which expire the fifteenth day after the November election every two years. These state interests outweigh the reasonable and nondiscriminatory impact that the deadline may have on some voters. Other courts have found similar election day receipt deadlines to be valid. See Thomas, 2020 WL 2617329, at *26; Friedman v. Snipes, 345 F. Supp. 2d 1356, 1377 (S.D. Fla. 2004).
The issues involved in cases where courts modified a ballot receipt deadline are distinguishable. In Bostelmann, 2020 WL 1638374, at *17, the Wisconsin Election Commission did not oppose extending the deadline, and the modification followed massive problems with timely delivery of absentee ballots to voters, such that “even the most diligent voter may be unable to return his or her ballot in time to be counted.” Id.; see also Thomas, 2020 WL 2617329, at *27 n.27 (distinguishing Wisconsin case in declining to enjoin South Carolina ballot receipt deadline).
One federal district court in Georgia changed the receipt deadline to require the counting of absentee ballots postmarked by election day and received within three days after election day. New Georgia Project v. Raffensperger, __ F. Supp. 3d __, 2020 WL 5200930, *28 (N.D. Ga. 2020). The Georgia federal court noted that, as in Bostelmann,
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there was evidence of problems in Georgia that caused even those voters who requested their ballots “well in advance of the election” to receive their ballots only the day before election day, and the recent primary demonstrated voters were disenfranchised “due to Georgia’s poor administration of absentee ballots.” New Georgia Project, at **6, 24. There is no such record evidence in this case, as no Oklahoma voter testified to receiving their ballot too late to timely return it under one of Oklahoma’s options for doing so, and the plaintiffs have not provided any evidence that delays like those involved in Wisconsin and Georgia are likely to occur with respect to Oklahoma ballots for the November election.
4. Absentee Ballot Request and Assistance Criminalization The ballot request assistance and ballot harvesting prohibitions make it a felony for plaintiffs to request or return 10 or more absentee ballots for eligible voters, and a misdemeanor to do the same for fewer than 10 absentee ballots. Okla. Stat. tit. 26, §§ 14101.1(A)(4), 16-104.1, 16-126. Oklahoma law also disallows others, except a voter’s spouse, from returning an absentee voter’s ballot. See Okla. Stat. tit. 26, §§ 14-101.1(A)(B), 14-108(A); Okla. Admin. Code § 230:30-11-1.1(a).; Okla. Stat. tit. 26, § 14101.1(A)(1), (2), (B)(5). The plaintiffs challenge these provisions on two grounds, arguing first, that the provisions constitute an undue burden on absentee voters and second, that the laws violate the plaintiffs’ own First Amendment speech and association rights.
a. Alleged Burden on Absentee Voters The evidence that the ballot assistance and ballot request prohibitions unduly burden Oklahoma absentee voters is slim and largely speculative. Dr. Meredith merely offered his ipse dixit opinion that “Oklahoma’s restrictions on assistance on requesting or returning
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mail ballots will disenfranchise potential voters in the 2020 presidential election, particularly among potential voters who are vigilantly social distancing to prevent contracting or spreading COVID-19.” (PX 2 at ¶ 97). He also opined that “some people will be unable to return a mail ballot if the only person that could provide them assistance doing so is their spouse,” which opinion was based on “statements by interest groups ... who perform lobbying on the basis of voting issues and [say] that their constituents need assistance getting their mail ballots returned.” (Tr. 125:12-24).
Even if the Court were to assume that the requirements will burden some voters, the state has presented evidence that the provisions were enacted on a non-discriminatory, bipartisan basis, in an effort to avoid the type of ballot harvesting and ballot payment scheme at issue in 2018 in North Carolina, which required a new election for a Congressional seat. (See, e.g., Doc. 48-2 at ¶¶ 23-24; PX 15 at 121-23; Doc. 47-11 at 4750; see also Doc. 48-5 at ¶¶ 8-27). Secretary Ziriax also cited a “major absentee voting scandal in Aider [sic] County about ten years ago,” which involved a notary public who made money by guarantying absentee votes, had numerous absentee ballots sent to his P.O. Box, and then notarized all of them. (PX 15 at 103).
The state’s interests in preventing potential ballot harvesting and related fraud is also supported by the September 2005 report of the Carter-Baker chaired Commission on Federal Election Reform, in which the Commission noted a concern that, “because it takes place outside the regulated environment of local polling locations, voting by mail creates increased logistical challenges and the potential for voter fraud, especially if safeguards are lacking or when candidates or political party activists are allowed to handle mail-in
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or absentee ballots.” (Doc. 48-5 at ¶ 43; see also May 6, 2020 Carter Center Statement on Voting by Mail for 2020 U.S. Elections) (emphasis added). Under a Burdick-Anderson balancing, the state’s interests are weighty in comparison to any burden imposed upon a potential absentee voter’s right to vote.
b. Plaintiffs’ First Amendment Rights The plaintiffs’ claim that the absentee ballot request, assistance, and harvesting prohibitions violate their speech and association rights also fails because the actions that are prohibited by the challenged laws involve conduct, not speech. While the First Amendment forbids the abridgement of “speech,” the Supreme Court has recognized that actions that are intended to communicate a particularized message can constitute symbolic speech protected by the First and Fourteenth Amendments. See Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 294 (1984); see also Texas v. Johnson, 491 U.S. 397, 404 (1989). Examples include burning an American flag as part of a demonstration, wearing an armband in protest of war, and civil rights-era sit-ins at “whites only” locations. See Johnson, 491 U.S. at 404; Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505 (1969); Brown v. Louisiana, 383 U.S. 131, 141-42 (1966). The Supreme Court has noted that there is not a “limitless variety of conduct [that] can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” Spence v. Washington, 418 U.S. 405, 409 (1974). It appears that courts considering similar assistance or harvesting laws are split as to whether ballot collection is expressive conduct protected by the First Amendment. Compare Knox v. Brnovich, 907 F.3d 1167, 1181 (9th Cir. 2018) (ballot collection is not
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speech subject to First Amendment protections); New Georgia Project, 2020 WL 5200930, **21-22 (“collecting ballots does not qualify as expressive conduct”); Miller v. Thurston, 967 F.3d 727, 738-39 (8th Cir. 2020) (notarizing and returning petition signatures is not speech); Voting for America v. Steen, 732 F.3d 382, 393 (5th Cir. 2013) (collecting voter registrations is not speech); League of Women Voters v. Browning, 575 F. Supp. 2d 1298, 1319 (S.D. Fla. 2008) (same) with Democracy North Carolina v. North Carolina State Bd. of Elec., __ F. Supp. 3d __, 2020 WL 4484063, *49-50 (M.D.N.C. 2020) (finding that assisting voters in completing a request for an absentee ballot was expressive conduct, but collecting and delivering absentee ballot request forms is not); DSCC v. Simon, No. 62-cv20-585, 2020 WL 4519785, at *29 (D. Minn. July 28, 2020) (reducing the number of individuals who could provide assistance to potential voters diminishes speech and associational rights of party organizations).
With respect to the particular laws at issue here, completing a ballot request for another voter, and collecting and returning ballots of another voter, do not communicate any particular message. Those actions are thus not expressive, and are not subject to strict scrutiny. The plaintiffs assert that “[t]he conversations and interactions between DCCC and the [ODP] and their respective organizers and voters surrounding requests for and the submission of ballots are forms of protected political speech and association.” (Doc. 18 at ¶ 177). However, the laws do not prohibit or criminalize the plaintiffs from engaging in “conversations and interactions” with their constituents and members regarding absentee ballots. There is no claim that the laws prohibit plaintiffs from encouraging their members to request an absentee ballot, providing a website link or other education to the voter about
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how to do so, or conveying that timely voting is important. Instead, the laws prohibit specific conduct of applying for another’s absentee ballot, receiving another voter’s completed ballot for the purpose of returning it, and mailing another’s ballot.
As noted above, the state has advanced evidence that the challenged laws were enacted to prevent voter fraud and ballot harvesting, which overcomes any purported burden upon voters under an Anderson-Burdick balancing. Based upon the same state interests, the restrictions are reasonably related to a legitimate governmental purpose, such that the law passes rational basis review. See New Georgia Project, 2020 WL 5200930, *21-22.
5. Postage Plaintiffs challenge Oklahoma’s failure to provide postage-paid envelopes for voters to return their ballots, both as an unconstitutional burden on the right to vote under the First and Fourth Amendments (Count I, see Doc. 18 at ¶ 148) and as an unconstitutional poll tax in violation of the Twenty-Fourth Amendment to the United States Constitution (Count II, see id. at ¶ 155).
a. Anderson-Burdick Balancing Oklahoma law does not address the issue of payment of postage for absentee ballots. Oklahoma does not prepay postage on the absentee ballot envelopes. However, absentee voters may avoid postage altogether and return their absentee ballots at the county election board before 5:00 p.m. the day before the election, Okla. Stat. tit. 26, §§ 7-104, 14-108, or they may receive postage gifted from third parties, id., § 16-106.
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The plaintiffs have not established that the lack of postage will result in disenfranchisement or an undue burden on any voter. The defendants note that the state is not required to allocate funds to prepay postage, and it is the USPS, not the state, that determines whether to require and collect postage. The plaintiff’s postal expert, Mr. Stroman, testified that the policy of the USPS “is to deliver the ballot, irrespective of whether it has postage or not,” although he recognized that particular carriers may mistakenly return the ballot for insufficient postage. (Tr. at 167-168).
The Court determines that the burden is light, given the above. At least one court recently rejected a similar claim under Anderson-Burdick and did not find a constitutional violation. New Georgia Project, 2020 WL 5200930 at *19. Postage is a type of “usual burden[ ] of voting,” see generally Crawford, 553 U.S. at 197-98, and is not one that is imposed by the state in any event. The state’s fiscal interests are sufficient to justify its not allocating funds to prepay for postage for absentee ballots.
b. Poll Tax Plaintiffs contend that the state’s failure to prepay postage on the absentee ballot envelopes constitutes a “poll tax” in violation of the Twenty-Fourth Amendment. That Amendment provides that the right to vote “shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.” U.S. Const. amend. XXIV, § 1. The undersigned agrees with courts that have recently determined that a state’s failure to prepay postage for mail-in ballots is not a “poll tax” in violation of the TwentyFourth Amendment. See New Georgia Project, 2020 WL 5200930 at *19-20; Black Voters
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Matter Fund v. Raffensperger, __ F. Supp. 3d __, 2020 WL 4597053, at *27 (N.D. Ga. Aug. 11, 2020); Nielsen v. DeSantis, No. 20-CV-236, Doc. 332 (N.D. Fla. June 24, 2020). D. Balancing of Harms and the Public Interest
The Court has concluded that the challenged provisions do not violate the Constitution. As a result, the plaintiffs have not succeeded on the merits of their Constitutional claims. In light of the Court’s balancing under Anderson-Burdick, the Court has already engaged in an analysis of relative burdens between the plaintiffs and defendants and the interests of the public with respect to voting and Oklahoma’s election system. (See supra, passim).
In addition, the Court concludes that significant weight should be placed on the state’s evidence that changes to Oklahoma’s absentee ballot laws at this date have the risk of delaying the delivery of absentee ballots and causing significant confusion among voters wishing to vote by absentee ballot. (See Doc. 48-2 at ¶¶ 11, 29, 39-42). In short, the ballots, ballot envelopes, and instructions for the ballot envelopes have necessarily already been printed in July and August, and to require reprinting or a change in election procedures would risk significant voter confusion, delay of receipt of absentee ballots, and disenfranchising or dissuading voters who may otherwise wish to vote by absentee ballot. See Republican Nat’l Committee, 140 S. Ct. at 1207 (“lower federal courts should ordinarily not alter the election rules on the eve of an election.”).
III. CONCLUSION Life has become more difficult and risky during the COVID-19 pandemic, and many voters have serious, legitimate concerns about voting in-person due to an increased risk of
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contracting the virus from being near others. The virus is not under control in Oklahoma, and there is no statewide mask mandate. The concerns about voting during the pandemic, especially as to elderly and other voters who are at a higher risk for serious outcomes, are justified. However, the state has put in place alternatives that do not necessarily require that voters have direct contact with others in order to cast an absentee ballot, and the evidence and law substantiate that the state’s interests in preventing voter fraud and promoting certainty and confidence are sufficiently weighty to overcome any minor burden imposed upon Oklahoma voters during the pandemic.
For the foregoing reasons, the plaintiffs’ request for injunctive relief (Doc. 18, 47) is denied. The Court has determined the merits of plaintiffs’ Amended Complaint for declaratory and injunctive relief, and judgment will be entered in favor of the defendants, terminating this action.
SO ORDERED this 17th day of September, 2020.
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