CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 2/28/2023 1

No Order Without a Plaintiff 

In re 2016 Primary Election 

(Susan J. Dlott, S.D. Ohio 1:16-mc-5) 

A federal district judge ordered a one-hour extension of voting hours 

in four counties following an anonymous telephone request to the 

court. A serious traffic accident had resulted in the closure of a 

transstate bridge. The court of appeals determined that the court was 

without jurisdiction to issue an order without a plaintiff. 

Subject: Poll hours. Topics: Polling hours; presiding remotely; 

intervention; case assignment; primary election. 

Early during the evening rush hour on March 15, 2016, the day of Ohio’s primary election, a traffic accident involving twelve vehicles, one of which 

plunged into the Ohio River, resulted in closure for several hours of the eastbound lanes of the Combs-Hehl Bridge from Kentucky to Ohio.1

 The clerk’s 

office in Cincinnati’s federal courthouse received an anonymous telephone request to keep polls open beyond the scheduled closing time of 7:30 p.m. to 

accommodate delayed motorists.2 The request was referred to Judge Susan J. 

Dlott, who was away from the courthouse and who orally instructed the clerk’s 

office to issue an order keeping the polls open until 8:30 p.m. in four southwest 

Ohio counties: Butler, Clermont, Hamilton (which includes Cincinnati), and 

Warren.3

 News of the order did not reach many election officials until after 

7:30.4

Boards of elections for Butler and Hamilton Counties moved to intervene 

on April 4 and 5, respectively, in order to appeal Judge Dlott’s order and explain to the courts why such orders should not be issued without giving county 

boards of elections an opportunity to explain their difficulties in complying 

with such orders.5 On April 8, Judge Dlott transferred the case to the clerk of 

court for reassignment.6 That same day, Judge Timothy S. Black granted the 

1. In re 2016 Primary Election, 836 F.3d 584, 586 (6th Cir. 2016); see Patrick Brennan & 

Bob Strickley, Authorities Locate Car That Fell Into the River, Cincinnati Enquirer, Mar. 16, 

2016, at A16; Witnesses Describe Car Falling from Bridge to 911 Dispatchers, Cincinnati Enquirer, Mar. 16, 2016, www.cincinnati.com/videos/news/2016/03/16/81892858/ (audio recordings of 911 calls). 

2. In re 2016 Primary Election, 836 F.3d at 585–86. 

3. Id. at 586; Order, In re 2016 Primary Election, No. 1:16-mc-5 (S.D. Ohio Mar. 15, 2016), 

D.E. 1; see Dan Horn, I-275 Incident Mars Otherwise Smooth Vote, Cincinnati Enquirer, Mar. 

16, 2016, at A3. 

4. In re 2016 Primary Election, 836 F.3d at 587; see Dan Horn, Judge: Stranded Drivers 

“Wanted to Vote,” Cincinnati Enquirer, Mar. 7, 2016, at A6. 

5. Intervention Motion, In re 2016 Primary Election, No. 1:16-mc-5 (S.D. Ohio Apr. 5, 

2016), D.E. 4 (Butler County); Intervention Motion, id. (Apr. 4, 2016), D.E. 4 (Hamilton 

County). 

6. Order, id. (Apr. 8, 2016), D.E. 5. 
No Order Without a Plaintiff 

2 Federal Judicial Center 2/28/2023 

motions to intervene.7 Ohio’s secretary of state and the two boards filed notices of appeal on April 11 and 12.8

The court of appeals appointed pro bono counsel to defend the district 

court’s order.9

 On September 6, the court of appeals determined, by a vote of 

two to one, that the district court did not have power to issue an order based 

on an anonymous telephone call.10

The district court judge, we realize, was in a difficult spot. She was out of 

the office. It was late. She had little time to act. All of this presumably led her 

to err on the side of protecting people’s right to vote. But none of this explains 

why the clerk’s office or the court couldn’t answer the phone call with the 

most natural of questions: “Who is it?” And none of this allowed the court to 

sidestep the Article III limitations on our power.11

The third judge would have dismissed the appeal as moot.12

7. Order, id. (Apr. 8, 2016), D.E. 6, 2016 WL 1392498. 

8. Notice of Appeal, id. (Apr. 12, 2016), D.E. 9 (Butler County); Notice of Appeal, id. (Apr. 

11, 2016), D.E. 8 (secretary of state); Notice of Appeal, id. (Apr. 11, 2016), D.E. 7 (Hamilton 

County); In re 2016 Primary Election, 836 F.3d at 586. 

9. Order, In re 2016 Primary Election, No. 16-3350 (6th Cir. May 3, 2016), D.E. 7; Letter, 

id. (May 6, 2016), D.E. 8; In re 2016 Primary Election, 836 F.3d at 586. 

10. In re 2016 Primary Election, 836 F.3d 584; see Dismissal Order, In re 2016 Primary 

Election, No. 1:16-mc-5 (S.D. Ohio Sept. 28, 2016), D.E. 12; see also Jessie Balmert, Judge 

Should Not Have Kept Polls Open, Appeals Panel Finds, Cincinnati Enquirer, Sept. 8, 2016, at 

A4. 

11. In re 2016 Primary Election, 836 F.3d at 589 (opinion by Circuit Judge Jeffrey S. Sutton, 

joined by Circuit Judge Eugene E. Siler, Jr.). 

12. Id. at 589–91 (concurring and dissenting opinion by Circuit Judge Ramsey Guy Cole, 

Jr.).