CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 10/26/2023 1

Ohio’s Voter-Identification Law 

Northeast Ohio Coalition for the Homeless v. Brunner 

(Gregory L. Frost and Algenon L. Marbley, 

S.D. Ohio 2:06-cv-896) 

Public-interest organizations challenged Ohio’s 2006 voteridentification laws. At the hearing on a temporary restraining order, the parties informed the judge that the case was related to a 

case already pending before a different judge, to whom the second 

case was then reassigned. The second judge found the identification 

laws probably unconstitutional, but the court of appeals stayed his 

temporary restraining order. The court of appeals also reversed the 

judge’s denial of the state’s intervention as a party in addition to the 

state’s secretary of state. In 2017, the district court determined that 

resolution of issues by statute and litigation obviated further need 

for a 2010 consent decree. 

Subject: Voter identification. Topics: Voter identification; case 

assignment; intervention; attorney fees. 

On October 24, 2006, public-interest organizations brought a federal constitutional challenge to Ohio’s new voter-identification laws.1

 With the complaint, the plaintiffs filed a motion for a temporary restraining order.2

 The 

court assigned the case to Judge Gregory L. Frost, who held a teleconference 

with the parties that same day.3

Following customary practice when a plaintiff filed a motion for a temporary restraining order with a complaint, the clerk’s office walked the complaint and motion to the assigned judge’s chambers.4

 The plaintiff was asked 

1. Complaint, NEOCH v. Brunner, No. 2:06-cv-896 (S.D. Ohio Oct. 24, 2006), D.E. 2; 

NEOCH v. Husted, 696 F.3d 580, 584 (6th Cir. 2012); NEOCH v. Husted, 837 F.3d 612, 620 

(6th Cir. 2016); NEOCH v. Sec’y of State, 695 F.3d 563, 566; NEOCH v. Blackwell, 467 F.3d 

999, 1004 (6th Cir. 2006); NEOCH v. Brunner, 652 F. Supp. 2d 871, 876 (S.D. Ohio 2009); 

see Edward B. Foley, The Future of Bush v. Gore?, 68 Ohio St. L.J. 925, 934–35, 937 (2007); 

Kevin Mayhood, Groups Sue to Block Voter ID Rules, Columbus Dispatch, Oct. 25, 2006, at 

3D; Mark Rollenhagen, Suit Calls Ohio’s Voter ID Law a Mess, Asks Court to Void It, Cleveland Plain Dealer, Oct. 25, 2006, at B1; Julie Carr Smyth, Groups Sue Over Voter ID Measure, 

Cincinnati Post, Oct. 25, 2006, at A3. See generally Daniel P. Tokaji, Leave It to the Lower 

Courts: On Judicial Intervention in Election Administration, 68 Ohio St. L.J. 1065, 1084–86 

(2007). 

2. Temporary-Restraining-Order Motion, NEOCH, No. 2:06-cv-896 (S.D. Ohio Oct. 24, 

2006), D.E. 3. 

3. Docket Sheet, Id. (Oct. 24, 2006); Interview with Hon. Gregory L. Frost, June 1, 2012. 

Tim Reagan interviewed Judge Frost for this report by telephone. 

Judge Frost retired on May 2, 2016. Federal Judicial Center Biographical Directory of Article III Federal Judges, www.fjc.gov/history/judges. 

4. Interview with Hon. Gregory L. Frost, June 1, 2012. 

Judges tried to be available in the courthouse on election days in case they were called 

upon to preside over emergency election cases. Id. 
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2 Federal Judicial Center 10/26/2023 

to remain present in the courthouse for a possibly immediate conference.5

At the first conference, Judge Frost set a hearing on the temporaryrestraining-order motion for the next day.6

 When the parties gathered for the 

hearing, they informed Judge Frost that the case was related to one before 

Judge Algenon L. Marbley.7

On the case’s third day, it was reassigned to Judge Marbley.8 The earlier 

case arose from an August 31, 2006, complaint that in the 2004 general election Ohio’s voting machines were distributed in an unequal and discriminatory manner to the disadvantage of urban and African American voters.9

 As 

part of the relief sought in that case, the plaintiffs asked Judge Marbley to order Ohio’s secretary of state to order each county to preserve 2004 ballots, 

but, on September 11, Judge Marbley issued an order directly to the counties 

that they do so.10 In 2012, Judge Marbley determined that the action was 

barred by the Eleventh Amendment.11

On the day that he was assigned the second case, Judge Marbley convened a hearing at 3:00 p.m.12 Scheduling for the second case was greatly facilitated by the overlap of attorneys working the two cases.13 The attorneys’ 

considerable familiarity with the applicable areas of law was a great asset in 

moving the cases forward.14

At 5:10 p.m., the court recessed for forty-five minutes, and then Judge 

Marbley issued a temporary restraining order against the new voteridentification laws, finding a likelihood that the plaintiffs could prove some 

unconstitutionality, and ordered an evidentiary hearing on the morning of 

Wednesday, November 1.15

5. Id. 

6. Notice of Hearing, NEOCH, No. 2:06-cv-896 (S.D. Ohio Oct. 24, 2006), D.E. 7. 

7. Interview with Hon. Gregory L. Frost, June 1, 2012. 

8. Transfer Order, NEOCH, No. 2:06-cv-896 (S.D. Ohio Oct. 26, 2006), D.E. 16; see Transcript at 4–5, id. (Oct. 27, 2006, filed Oct. 30, 2006), D.E. 27 [hereinafter Oct. 27, 2006, Transcript] (noting that transfer does not necessarily imply consolidation); see also Mark Rollenhagen, Federal Hearing on Challenge to Voter ID Rule Is Today, Cleveland Plain Dealer, Oct. 

26, 2006, at B3. 

9. Complaint, King Lincoln Bronzeville Neighborhood Ass’n v. Blackwell, No. 2:06-cv745 (S.D. Ohio Aug. 31, 2006), D.E. 1; King Lincoln Bronzeville Neighborhood Ass’n v. 

Blackwell, 448 F. Supp. 2d 876, 877 (S.D. Ohio 2006). 

10. King Lincoln Bronzeville Neighborhood Ass’n, 448 F. Supp. 2d at 879–80. 

11. Opinion, King Lincoln Bronzeville Neighborhood Ass’n, No. 2:06-cv-745 (S.D. Ohio 

Aug. 31, 2006), D.E. 122, 2012 WL 395030. 

12. Transcript, NEOCH, No. 2:06-cv-896 (S.D. Ohio Oct. 26, 2006, filed Oct. 27, 2006), 

D.E. 30 [hereinafter Oct. 26, 2006, Transcript]. 

13. Interview with Hon. Algenon L. Marbley, July 11, 2012. 

14. Id. 

15. Temporary Restraining Order, NEOCH, No. 2:06-cv-896 (S.D. Ohio Oct. 26, 2006), 

D.E. 17; Oct. 26, 2006, Transcript, supra note 12, at 86–103; NEOCH v. Blackwell, 467 F.3d 

999, 1002, 1004 (6th Cir. 2006); NEOCH v. Brunner, 652 F. Supp. 2d 871, 876 n.1 (S.D. Ohio 

2009); see Matt Leingang, Judge Suspends ID Law on Absentee Ballots, Cincinnati Post, Oct. 

27, 2006, at A4; Kevin Mayhood, Mark Niquette & Alan Johnson, Judge Suspends Voter-ID 

Directive, Columbus Dispatch, Oct. 27, 2006, at 1A (reporting a reprieve from having absen-
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The State of Ohio sought to intervene on October 27 so that it could appeal the temporary restraining order.16 Judge Marbley denied the motion, 

reasoning that the state’s interests were adequately represented by the defendant secretary of state.17

On October 31, the court of appeals, with one judge dissenting, stayed 

the temporary restraining order: “There is . . . a strong public interest in 

permitting legitimate statutory processes to operate to preclude voting by 

those who are not entitled to vote.”18 The appellate court also determined 

that the state had a right to intervene.19

On the following day, six days before the election, Judge Marbley entered 

a consent order specifying how voters would have to prove their identities in 

Ohio for the 2006 election.20 For the 2008 election, Judge Marbley also issued 

orders based on the parties’ negotiations.21 In 2009, Judge Marbley awarded 

the plaintiffs $431,374.05 in attorney fees and costs.22

Judge Marbley entered a consent decree in 2010.23 The consent decree 

tee votes disqualified because a voter provided the wrong number from the driver’s license 

as identification—the number above the photo identifying where the license was obtained 

instead of the driver’s identification number); Tokaji, supra note 1, at 1085. 

16. Intervention Motion, NEOCH, No. 2:06-cv-896 (S.D. Ohio Oct. 27, 2006), D.E. 22; 

NEOCH, 467 F.3d at 1004; see Oct. 27, 2006, Transcript, supra note 8, at 10 (observing “a 

situation in which two state agencies or two state officials disagree on litigation strategy”); 

see also Matt Leingang, Disagreement Over Challenge to Voter ID Law, Cincinnati Post, Oct. 

28, 2006, at A4. 

17. Oct. 27, 2006, Transcript, supra note 8, at 45; NEOCH, 467 F.3d at 1004–05; see Alan 

Johnson, Mark Niquette & Joe Hallett, Voter-ID Rules Remain in Limbo, Columbus Dispatch, Oct. 28, 2006, at 1A (reporting that Ohio’s attorney general sought to intervene on 

behalf of the state because the secretary of state decided not to appeal). 

18. NEOCH, 467 F.3d at 1012; NEOCH, 652 F. Supp. 2d at 876 n.1; see Foley, supra note 

1, at 994 & n.167, 996; Mark Rollenhagen, Voter ID Rules Change a Third Time in Four Days, 

Cleveland Plain Dealer, Oct. 30, 2006, at A1. 

This stay threatened to cause more disruption than it resolved. In particular, it threw into 

doubt what would happen to the absentee ballots that had been cast during the period that 

Judge Marbley’s order was in effect, at which time voters could reasonably have believed that 

the ID requirements did not apply to them. Only the diligent efforts of Judge Marbley and the 

attorneys for both sides forestalled a potential post-election crisis. 

Tokaji, supra note 1, at 1085–86 (footnote omitted). 

19. NEOCH, 467 F.3d at 1008–09. 

20. Consent Order, NEOCH, No. 2:06-cv-896 (S.D. Ohio Nov. 1, 2006), D.E. 51; NEOCH 

v. Sec’y of State, 695 F.3d 563, 566; NEOCH, 652 F. Supp. 2d at 876; see Foley, supra note 1, 

at 991 n.157; Mark Rollenhagen, Absentee Voter ID Rules Are Suspended, Cleveland Plain 

Dealer, Nov. 2, 2006, at A1 (“All absentee ballots will be counted regardless of whether voters supplied identification when they were cast.”); Julie Carr Smyth, Court Settlement Clarifies Voter ID Law, Cincinnati Post, Nov. 2, 2006, at A2; Robert Vitale, Voter ID Ruling Sets 

Off a Flurry, Columbus Dispatch, Nov. 3, 2006, at 1A. 

21. Order, NEOCH, No. 2:06-cv-896 (S.D. Ohio Oct. 27, 2008), D.E. 143; Order, id. (Oct. 

24, 2008), D.E. 142; NEOCH, 695 F.3d at 566; NEOCH, 652 F. Supp. 2d at 876; see Ohio ex 

rel. Skaggs v. Brunner, 588 F. Supp. 2d 819, 821 (S.D. Ohio 2008). 

22 NEOCH, 652 F. Supp. 2d at 875. 

23. Consent Decree, NEOCH, No. 2:06-cv-896 (S.D. Ohio Apr. 19, 2010), D.E. 210 [hereinafter NEOCH Consent Decree]; NEOCH v. Husted, 831 F.3d 686, 693 (6th Cir. 2016); 
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approved a revision to the earlier award of fees and costs, increasing it to 

$504,414.11.24 On November 30, Judge Marbley awarded an additional 

$18,943.13 in fees and costs.25 Judge Marbley ruled on July 9, 2012, that 

Ohio’s new executive administration was not entitled to relief from the decree.26 The court of appeals affirmed Judge Marbley’s decision on October 

11.27

On June 22, 2012, five labor organizations filed a federal complaint challenging some of Ohio’s laws respecting provisional ballots, especially seeking 

a declaration that provisional ballots cast in the wrong precinct should be 

counted if they were cast in the wrong precinct because of poll-worker error.28 The court determined that this case was related to Judge Marbley’s 

pending action, and so it was assigned to him as well.29

On August 27, Judge Marbley determined that provisional ballots cast in 

the wrong precinct because of poll-worker error must be counted.30 In its October 11 affirmance, the court of appeals clarified that the voter must cast a 

provisional ballot at a correct location.31 On October 26, Judge Marbley 

found that the evidence supported an expansion of his injunction to protect 

NEOCH, 695 F.3d at 696–98; Service Employees Int’l Union v. Husted, 887 F. Supp. 2d 761, 

767 (S.D. Ohio 2012); see Transcript, NEOCH, No. 2:06-cv-896 (S.D. Ohio Apr. 19, 2010, 

filed June 24, 2010), D.E. 217; see also Ohio ex rel. Painter v. Brunner, 128 Ohio St. 3d 17, 

20–21, 941 N.E.2d 782, 788–89 (2011). 

24. NEOCH Consent Decree, supra note 23, at 6; Order at 4, NEOCH, No. 2:06-cv-896 

(S.D. Ohio Nov. 30, 2010), D.E. 234 [hereinafter NEOCH Fees and Costs Order], 2010 WL 

4939946; NEOCH, 695 F.3d at 567. 

25. NEOCH Fees and Costs Order, supra note 24, aff’d, 695 F.3d 563. 

26. Opinion, NEOCH, No. 2:06-cv-896 (S.D. Ohio Apr. 19, 2012), D.E. 307, 2012 WL 

2711393; NEOCH v. Husted, 696 F.3d 580, 585 (6th Cir. 2012); Service Employees Int’l Union, 887 F. Supp. 2d at 767; NEOCH, 831 F.3d at 694. 

27. NEOCH, 696 F.3d at 600–04. 

28. Complaint, Service Employees Int’l Union v. Husted, No. 2:12-cv-562 (S.D. Ohio 

June 22, 2012), D.E. 1; NEOCH, 831 F.3d at 694; NEOCH, 696 F.3d at 585 n.1; Service Employees Int’l Union, 887 F. Supp. 2d at 772; see Second Amended Complaint, Service Employees Int’l Union, No. 2:12-cv-562 (S.D. Ohio July 24, 2012), D.E. 63; First Amended Complaint, id. (July 13, 2012), D.E. 32; see also Robert Barnes, In Ohio, a Fight Over Votes Not 

Counted, Wash. Post, Aug. 6, 2012, at A1. 

29. Order, Service Employees Int’l Union, No. 2:12-cv-562 (S.D. Ohio June 26, 2012), D.E. 

16; NEOCH, 831 F.3d at 694–95; Service Employees Int’l Union, 887 F. Supp. 2d at 766 n.1. 

The court of appeals affirmed Judge Marbley’s denial of a motion to intervene filed by 

voters five weeks after the complaint was filed. Order, Service Employees Int’l Union v. 

Husted, No. 12-4079 (6th Cir. Feb. 20, 2013), 2013 WL 628527; see Service Employees Int’l 

Union, 887 F. Supp. 2d at 771–72; see also NEOCH, 696 F.3d at 589 n.4. 

30. Service Employees Int’l Union, 887 F. Supp. 2d at 798; NEOCH, 696 F.3d at 585 & n.2; 

NEOCH, 831 F.3d at 695–97; see Robert Barnes, Ohio Must Count Some Improperly Cast 

Ballots, Judge Rules, Wash. Post, Aug. 28, 2012, at A5. 

31. NEOCH, 696 F.3d at 589–90; see id. at 583 (noting that to resolve the appeal quickly 

the court of appeals received expedited briefing and heard oral arguments by telephone on 

October 1); Order, Service Employees Int’l Union, No. 2:12-cv-562 (S.D. Ohio July 9, 2013), 

D.E. 112, 2013 WL 3456756; NEOCH, 831 F.3d at 695; see Robert Barnes, Ohio Told Poll 

Workers’ Errors Shouldn’t Invalidate Votes, Wash. Post, Oct. 12, 2012, at A6; Daniel P. Tokaji, Election Law in a Nutshell 168–69, 190, 195 (2013). 
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provisional ballots cast in both the wrong location and the wrong precinct 

because of poll-worker error.32 Five days later, the court of appeals issued an 

emergency stay of the expanded injunction both because “last-minute injunctions changing election procedures are strongly disfavored”33 and because, “Though voters must rely heavily on poll workers to direct them to the 

proper precinct in a multiprecinct voting place, they are not as dependent on 

poll workers to identify the correct polling place.”34 On September 30, 2013, 

the court of appeals dismissed this appeal as moot because the 2012 election 

was well over.35

On the Friday night before the 2012 general election, Ohio’s secretary of 

state issued a directive that election boards reject provisional ballots with incomplete identification information.36 This violated the consent decree with 

respect to omissions resulting from poll-worker error for provisional voters 

who provided Social Security numbers as identification.37 On November 13, 

four days before the counting of provisional ballots was to begin, Judge Marbley enjoined the violation of the consent decree and, as a matter of equal 

protection, ordered that provisional ballots for all voters be counted if incomplete identification information resulted from poll-worker error.38 The 

court of appeals stayed the injunction pending appeal.39 On February 6, 2014, 

the court of appeals remanded the case to Judge Marbley for vacation of his 

November 13, 2012, opinion, pursuant to an agreement of the parties approved by Judge Marbley.40

On February 17, 2015, Judge Marbley awarded the plaintiffs 

$2,227,179.90 in fees and costs.41 The court of appeals largely affirmed the 

award on August 1, 2016, but remanded the fee requests for a reduction of 

32. Opinion, NEOCH v. Brunner, No. 2:06-cv-896 (S.D. Ohio Oct. 26, 2012), D.E. 344, 

2012 WL 5334080; Order, id. (Oct. 26, 2012), D.E. 345; Transcript at 60–61, id. (Oct. 24, 

2012, filed Oct. 26, 2012), D.E. 89; NEOCH, 831 F.3d at 699; see Polling Location Ruling Expanded, Cincinnati Enquirer, Oct. 26, 2012, at C1. 

33. Service Employees Int’l Union v. Husted, 698 F.3d 341, 345 (6th Cir. 2012). 

34. Id. at 344; see NEOCH, 831 F.3d at 699; see also Court: Voters Must Find Right Poll, 

Cincinnati Enquirer, Nov. 1, 2012, at C1; Darrel Rowland, No “Wrong Church, Wrong Pew” 

Voting, Columbus Dispatch, Nov. 1, 2012, at 3B. 

35. Service Employees Int’l Union v. Husted, 531 F. App’x 755 (6th Cir. 2013); NEOCH, 

831 F.3d at 699. 

36. Opinion at 4, NEOCH, No. 2:06-cv-896 (S.D. Ohio Nov. 13, 2012), D.E. 357, 2012 

WL 5497757. 

37. Id. at 7–10. 

38. Id. at 10–16; see Joe Guillen, Judge Denounces Change to Ballot Rules, Cleveland Plain 

Dealer, Nov. 14, 2012, at A1. 

39. Opinion, NEOCH v. Husted, No. 12-4354 (6th Cir. Nov. 16, 2012); see Alan Johnson, 

Appeals Court Backs Husted on Provisionals, Columbus Dispatch, Nov. 17, 2012, at 2B. 

40. Order, NEOCH, No. 12-4354 (6th Cir. Feb. 6, 2014); Order, NEOCH, No. 2:06-cv-896 

(S.D. Ohio Feb. 7, 2014), D.E. 405 (vacating the November 13, 2012, opinion); Order, id.

(Jan. 31, 2014), D.E. 401 (agreeing to vacate the opinion); see Order, NEOCH, No. 12-4354 

(6th Cir. Mar. 6, 2014) (dismissing the appeal as settled). 

41. Opinion, NEOCH, No. 2:06-cv-896 (S.D. Ohio Feb. 17, 2015), D.E. 444; NEOCH v. 

Husted, 831 F.3d 686, 702 (6th Cir. 2016). 
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hourly rates for the most highly paid attorneys—attorneys at a San Francisco 

law firm—and abrogation of the circuit’s fees-for-fees cap that the court of 

appeals determined in this case to be inconsistent with a 1990 Supreme 

Court case, Commissioner, INS v. Jean.

42 On October 12, 2016, Judge Marbley 

approved an agreed fee-and-costs award of $2,618,140.78 to cover litigation 

up to a 2015 supplemental complaint.43

A supplemental complaint was filed on August 10, 2015.44 Following 

twelve days of bench trial concluding on March 31, 2016, Judge Marbley declared on June 7 that some provisions of Ohio’s 2014-enacted voting laws 

were in violation of the constitutional and Voting Rights Act rights of homeless and African American voters: rigid requirements for filling out voting 

forms, a proscription on poll-worker assistance, and a tight time frame for 

curing errors.45 On September 13, 2016, the court of appeals affirmed the ruling on rigid requirements but, by a vote of two to one, reversed the rulings 

on poll-worker assistance and curing errors.46 The dissenting senior judge 

voted to rehear the appeal, and six active judges, a minority, voted to rehear 

the appeal en banc.47

Judge Marbley decided on April 28, 2017, that resolution of issues by 

statute and litigation had obviated further need for the 2010 consent decree.48

On March 28, 2018, Judge Marbley issued a stipulated award of $1,100,000 in 

attorney fees and costs.49

42. NEOCH, 831 F.3d at 692, 719–25; see Commissioner, INS v. Jean, 496 U.S. 154 

(1990). 

43. Order, NEOCH, No. 2:06-cv-896 (S.D. Ohio Oct. 12, 2016), D.E. 795. 

44. Second Supplemental Complaint, id. (Aug. 10, 2015), D.E. 453; NEOCH v. Husted, 

837 F.3d 612, 621, 625 (6th Cir. 2016). 

45. Opinion, id. (June 7, 2016), D.E. 691, 2016 WL 3166251; NEOCH, 837 F.3d at 618, 

621–22; see Robert Higgs, Judge Rules Ohio Voting Laws Unconstitutional, Cleveland Plain 

Dealer, June 8, 2016, at A1; Darrel Rowland, 2nd Judge Halts GOP Changes in Ohio Law, 

Columbus Dispatch, June 8, 2016, at 1A. 

46. NEOCH, 837 F.3d 612 (6th Cir.), cert. denied, 582 U.S. 914 (2017); id. at 638–68 (Circuit Judge Damon J. Keith, concurring in part and dissenting in part: “I am deeply saddened 

and distraught by the court’s deliberate decision to reverse the progress of history.”). 

47. Id. at 612 & n.*; Opinion, NEOCH v. Husted, No. 16-3603 (6th Cir. Oct. 6, 2016), 

D.E. 79, 80. 

48. Opinion, NEOCH, No. 2:06-cv-896 (S.D. Ohio Apr. 28, 2017), D.E. 813, 2017 WL 

1531811. 

49. Order, id. (Mar. 28, 2018), D.E. 829.