CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 10/9/2023 1

Keeping Polls Open Late 

Because They Opened Late 

Ohio Democratic Party v. Cuyahoga County Board 

of Elections (Dan Aaron Polster, N.D. Ohio 1:06-cv-2692) 

Because a county was using new voting equipment, several polls 

opened late, so one of the political parties filed a federal action to 

delay poll closings as well. The judge assigned to the case could not 

be reached, so the motion for a temporary restraining order was 

heard by the day’s duty judge. The duty judge determined that the 

problems were localized, so he ordered late closing for sixteen precincts. 

Subject: Poll hours. Topics: Polling hours; voting technology; 

case assignment; intervention; news media. 

On the day of the 2006 gubernatorial election, Ohio’s Democratic Party filed 

a federal action in the Northern District of Ohio to keep the polls in Cuyahoga County, the county that includes Cleveland, open until 9:00 p.m., an 

extra hour and a half, because many polling places opened late, sometimes 

approximately one hour after 6:30 a.m.1 The party filed with its complaint a 

motion for a temporary restraining order and a preliminary injunction.2 The 

county opposed the motion.3

 Ohio’s secretary of state moved to intervene4 in 

opposition to the motion.5

The court randomly assigned the case to Judge Lesley Wells,6 but she 

could not be reached.7

 Judge Dan Aaron Polster was the duty judge that day, 

so he heard the motion in chambers.8 Members of the news media asked to 

attend the hearing, but Judge Polster denied the request because it was after 

hours.9 By the time he issued his order that day, he realized his error and 

apologized to the media downstairs when he delivered a copy of his order to 

them.10

1. Complaint, Ohio Democratic Party v. Cuyahoga Cty. Bd. of Elections, No. 1:06-cv2692 (N.D. Ohio Nov. 7, 2006), D.E. 1; see Barbara Carmen & Dean Narciso, Voting Hours 

Extended After Legal Flap, Columbus Dispatch, Nov. 8, 2006, at 1A. 

2. Motion, Ohio Democratic Party, No. 1:06-cv-2692 (N.D. Ohio Nov. 7, 2006), D.E. 2. 

3. County Opposition, id. (Nov. 7, 2006), D.E. 3. 

4. Intervention Motion, id. (Nov. 7, 2006), D.E. 5. 

5. Secretary of State Opposition, id. (Nov. 7, 2006), D.E. 6. 

Judge Wells retired on October 2, 2015. Federal Judicial Center Biographical Directory of 

Article III Federal Judges, www.fjc.gov/history/judges. 

6. Docket Sheet, Ohio Democratic Party, No. 1:06-cv-2692 (N.D. Ohio Nov. 7, 2006). 

7. Interview with Hon. Dan Aaron Polster, July 23, 2012. 

Tim Reagan interviewed Judge Polster for this report by telephone. 

8. Id.

9. Id.

10. Id. 
Keeping Polls Open Late Because They Opened Late 

2 Federal Judicial Center 10/9/2023 

The voting equipment was new, and that resulted in difficulties getting 

the polls operational on time that morning.11 Presentations by the parties indicated that the problems were localized to the east side of town, where voters often had to wait in line more than an hour.12

Judge Polster granted the plaintiffs immediate relief.13 “[T]he Court informed the parties that having the votes cast according to voters’ constitutional rights is a more compelling need than an immediate determination of 

the election winners.”14 At 7:25 p.m., Judge Polster ordered sixteen polling 

places—all on the east side of Cleveland and in east-side suburbs—to stay 

open until 9:00 p.m.15 Judge Polster was pleased to hear the announcement of 

the late closings on the radio that evening.16

The secretary appealed the order that same day and moved to stay it.17

Judge Polster had not granted the secretary’s motion to intervene, because 

the judge was not sure that the secretary had standing, but the judge permitted the secretary’s attorney to attend the hearing; deciding when the polls 

should close was a higher priority than deciding the secretary’s intervention.18

The court of appeals ordered segregated as provisional all ballots cast by 

voters who arrived after the usual closing time.19

The secretary ordered all counties to not report results until 9:00 p.m.20

The late voting contributed to a later-than-usual reporting of election results 

by the news media.21

On January 16, 2007, Judge Wells approved a voluntary dismissal.22

11. Id. 

12. Id. 

13. Temporary Restraining Order, Ohio Democratic Party v. Cuyahoga Cty. Bd. of Elections, No. 1:06-cv-2692 (N.D. Ohio Nov. 7, 2006), D.E. 8; see Carmen & Narciso, supra

note 1; Edward B. Foley, The Future of Bush v. Gore?, 68 Ohio St. L.J. 925, 994 (2007). 

14. Temporary Restraining Order, supra note 13, at 1–2. 

15. Id. at 2–3 (filed at 7:25 p.m.); see Amy Goldstein & Alan Cooperman, Courts Weigh 

In After Voting Difficulties Emerge at the Polls, Wash. Post, Nov. 8, 2006, at A35; Joan Mazzolini, Election Day Generally Goes Smoothly, Cleveland Plain Dealer, Nov. 8, 2006, at S2; 

William Neuman, Ohio Democrats Win Races for Senate and Governor, N.Y. Times, Nov. 8, 

2006, at P10. 

16. Interview with Hon. Dan Aaron Polster, July 23, 2012. 

17. Docket Sheet, Ohio Democratic Party v. Cuyahoga Cty. Bd. of Elections, No. 06-4452 

(6th Cir. Nov. 7, 2006) [hereinafter 6th Cir. Docket Sheet]. 

18. Interview with Hon. Dan Aaron Polster, July 23, 2012. 

19. 6th Cir. Docket Sheet, supra note 17; see Foley, supra note 13, at 994. 

20. See Carmen & Narciso, supra note 1.

21. See Molly Willow, TV Election Coverage Grows Up, Grows Dull, Columbus Dispatch, 

Nov. 8, 2006, at 1B. 

22. Order, Ohio Democratic Party v. Cuyahoga Cty. Bd. of Elections, No. 1:06-cv-2692 

(N.D. Ohio Jan. 16, 2007), D.E. 13.