CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 8/30/2023 1

Voting Without Notice of Errors 

ACLU v. Brunner 

(Kathleen M. O’Malley, N.D. Ohio 1:08-cv-145) 

A January 2008 complaint challenged the selection by a county of 

new voting machines because the machines would not give voters 

notice of errors and opportunities to cure them. The district judge 

determined that by the time the complaint had been filed there was 

not time for a remedy that would not excessively disrupt the March 

presidential primary election. 

Subject: Voting procedures. Topics: Voting technology; laches. 

The ACLU and two voters filed a federal complaint on January 17, 2008, in 

the Northern District of Ohio, challenging the legality of Cuyahoga County’s 

plan to use for the March 4 presidential primary election a central-count optical-scan system that lacked error notification while other counties would 

use voting systems that would prevent spoiled ballots by providing voters 

with notice of errors and an opportunity to correct the errors.1

 One of the 

plaintiffs was African American; the defendants included Ohio’s secretary of 

state, Cuyahoga County’s board of elections and its four members, and 

Cuyahoga County’s board of commissioners and its three members.2

Among the complaint’s prayer for relief was a prayer for a preliminary 

injunction,3 but the plaintiffs did not file a motion for such an injunction 

with their complaint.4 The court assigned the case to Judge Kathleen M. 

O’Malley.5 Not wanting to do the plaintiffs’ work for them but also wanting 

to make sure the case progressed efficiently, Judge O’Malley contacted the 

plaintiffs about the discrepancy between their complaint and the lack of an 

injunction motion.6 On January 23, after contacting the plaintiffs, Judge 

O’Malley set a telephone conference for January 24.7

 At the conference, she 

set a preliminary-injunction hearing for February 5,8 and the plaintiffs filed 

1. Complaint, ACLU v. Brunner, No. 1:08-cv-145 (N.D. Ohio Jan. 17, 2008), D.E. 1; see

Joe Guillen, ACLU Files a Lawsuit to Block Vote Switch, Cleveland Plain Dealer, Jan. 18, 

2008, at B1. 

2. Complaint, supra note 1. 

3. Id. at 18. 

4. Docket Sheet, ACLU, No. 1:08-cv-145 (N.D. Ohio Jan. 17, 2008). 

5. Id. 

Tim Reagan interviewed Judge O’Malley for this report by telephone on July 19, 2012. 

Judge O’Malley was elevated to a seat on the Court of Appeals for the Federal Circuit on 

December 27, 2010, and she retired on March 11, 2022. Federal Judicial Center Biographical 

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

6. Interview with Hon. Kathleen M. O’Malley, July 19, 2012 (describing this as a teaching 

moment for her law clerks). 

7. Notice, ACLU, No. 1:08-cv-145 (N.D. Ohio Jan. 23, 2008), D.E. 5; Docket Sheet, supra

note 4. 

8. Minutes, ACLU, No. 1:08-cv-145 (N.D. Ohio Jan. 24, 2008), D.E. 6. 
Voting Without Notice of Errors 

2 Federal Judicial Center 8/30/2023 

their motion for a preliminary injunction on January 28.9

The plaintiffs subpoenaed testimony at the February 5 hearing from the 

director of the board of elections for Franklin County, the county that includes Columbus.10 On February 2, the director moved to quash the subpoena, complaining that it was unreasonable to ask that he be away from Franklin County, which is in the Southern District of Ohio, three days before voting would start.11 On February 4, Judge O’Malley ordered him to appear by 

telephone.12 Because Judge O’Malley had one of the first high-tech courtrooms, the director testified by videoconference.13

On February 4, the NAACP’s Cleveland branch filed an amicus curiae 

brief in opposition to the ACLU’s preliminary-injunction motion.14 On instructions from the national head office, the branch withdrew the brief on 

February 7; the local branch had filed a brief on a matter of national concern 

without approval from the national head office.15

The February 5 hearing lasted seven hours.16 Judge O’Malley denied the 

injunction.17 A significant factor working against the plaintiffs was how late 

they had filed their complaint.18 There was considerable evidence from the 

board of elections supporting the difficulties of implementing any relief.19

On a stipulation by the county that it would use notice-based voting 

equipment for the November 4 general election, the plaintiffs voluntarily 

dismissed the case on April 2.20

9. Preliminary-Injunction Motion, id. (Jan. 28, 2008), D.E. 8. 

10. Subpoena, attached to Motion to Quash, id. (Jan. 28, 2008), D.E. 21. 

11. Motion to Quash, supra note 10. 

12. Order, ACLU, No. 1:08-cv-145 (N.D. Ohio Feb. 4, 2008), D.E. 28. 

13. Interview with Hon. Kathleen M. O’Malley, July 19, 2012. 

14. Amicus Curiae Brief, ACLU, No. 1:08-cv-145 (N.D. Ohio Feb. 4, 2008), D.E. 27. 

15. Motion to Withdraw Document, id. (Feb. 7, 2008), D.E. 33; see Docket Sheet, supra

note 4 (noting February 19, 2008, permission from the court to withdraw the brief). 

16. Minutes, ACLU, No. 1:08-cv-145 (N.D. Ohio Feb. 6, 2008), D.E. 30. 

17. Id.; see Mark Niquette & Holly Zacharia, Tally in Fight with Brunner: 1 New Lawsuit, 

1 Challenge Lost, Columbus Dispatch, Feb. 6, 2008, at 1B. 

18. Interview with Hon. Kathleen M. O’Malley, July 19, 2012. 

19. Id. 

20. Voluntary Dismissal, ACLU, No. 1:08-cv-145 (N.D. Ohio Apr. 2, 2008), D.E. 50; see

Order, id. (Apr. 4, 2008), D.E. 51 (granting dismissal).