CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 8/12/2023 1

Same-Day Registration and Absentee Voting 

Project Vote v. Madison County Board of Elections (James S. 

Gwin, N.D. Ohio 1:08-cv-2266) and Ohio Republican Party 

v. Brunner (George C. Smith, S.D. Ohio 2:08-cv-913) 

Absentee voting began in Ohio thirty-five days before the 2008 general election; state election law required voters to be registered at 

least thirty days before the election. Could new voters both register 

and vote on the same day if they did so after absentee voting began 

and before the deadline for new voter registrations? On a Wednesday, three public-interest organizations and two voters filed a federal complaint in the Northern District against a county in the 

Southern District that interpreted the law as requiring registration 

thirty days before voting instead of thirty days before the election. 

The district judge set the matter for hearing on Monday midday. 

On Friday, the Republican Party and a voter filed a federal action in 

the Southern District to force Ohio’s secretary of state to require 

voters to be registered for thirty days before voting. Over the weekend, defendants in each case moved to transfer their case to the 

other district. Both judges denied these motions, and both judges 

moved up their Monday hearings. On Monday, the Northern District judge ruled that the statute required registration thirty days before the election, not thirty days before voting. That same day, 

Ohio’s supreme court reached the same result. Later that day, the 

Southern District judge deferred to the state court on the issue. 

Other issues in the Southern District case received expedited review 

by another district judge, the court of appeals, and the Supreme 

Court. 

Subject: Absentee and early voting. Topics: Absentee ballots; 

case assignment; Help America Vote Act (HAVA); registration 

procedures. 

At dispute in this litigation was whether Ohio citizens could both register to 

vote and vote absentee from September 30 to October 6, 2008.1 For the 2008 

general election, absentee voting in Ohio was to begin on September 30, 

which was thirty-five days before the election.2 Voters had to be registered at 

least thirty days before the election, but because that day fell on a Sunday 

voters had until October 6 to register.3

On Wednesday, September 24, three public-interest organizations and 

two voters filed a federal challenge, in the Cleveland courthouse for the 

Northern District of Ohio, to a requirement of Ohio’s Madison County that 

1. Ohio Republican Party v. Brunner, 543 F.3d 357, 359 (6th Cir. 2008). 

2. Ohio Rev. Code § 3509.01 (2008). 

3. Id. § 3503.06; Opinion at 4, Ohio Republican Party v. Brunner, No. 2:08-cv-913 (S.D. 

Ohio Sept. 26, 2008), D.E. 27, 2008 WL 4445193 [hereinafter Ohio Republican Party Temporary-Restraining-Order Opinion]. 
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2 Federal Judicial Center 8/12/2023 

voters be registered for thirty days before they can receive an absentee ballot.4

The plaintiffs sought a temporary restraining order.5

 The court assigned the 

case to Judge James S. Gwin, who set a hearing on the motion for Monday at 

12:30 p.m.6

On Friday, the Ohio Republican Party and a voter filed an action in the 

Columbus courthouse of the Southern District complaining that the secretary of state was permitting county boards of elections to issue absentee ballots to voters who had not yet been registered for thirty days.7

 The court assigned the case to Judge George C. Smith, who scheduled a hearing for Monday at 2:00 p.m.8

Among the papers that defendants filed over the weekend was a motion 

to dismiss or transfer the Northern District case because Madison County is 

in the Southern District9 and a motion to transfer the Southern District case 

to the Northern District because it was related to the case that was filed there 

first.10

On Sunday, Judge Smith denied the motion to transfer the Southern District case to the Northern District, noting that the Northern District defendants were located in the Southern District and suggesting that the Northern 

District case was filed first to obtain a more favorable forum for the Northern 

District plaintiffs.11

Judge Smith also rescheduled Monday’s hearing for 11:00 a.m.12 The secretary of state, who was a defendant in both actions, asked Judge Gwin to 

move up the hearing in his case to 11:30 a.m., at which time she expected her 

4. Complaint, Project Vote v. Madison Cty. Bd. of Elections, No. 1:08-cv-2266 (N.D. 

Ohio Sept. 24, 2008), D.E. 1; Ohio Republican Party, 543 F.3d at 359–60; see Mark Niquette, 

Lawsuit Backs “Same-Day” Voting, Columbus Dispatch, Sept. 26, 2008, at 3B. 

5. Temporary-Restraining-Order Motion, Project Vote, No. 1:08-cv-2266 (N.D. Ohio 

Sept. 26, 2008), D.E. 7. 

6. Order, id. (Sept. 26, 2008), D.E. 8. 

Tim Reagan interviewed Judge Gwin for this report by telephone on October 24, 2012. 

7. Temporary-Restraining-Order Motion, Ohio Republican Party, No. 2:08-cv-913 (S.D. 

Ohio Sept. 26, 2008), D.E. 3; Complaint, id. (Sept. 26, 2008), D.E. 2; Ohio Republican Party, 

543 F.3d at 360; Ohio Republican Party v. Brunner, 582 F. Supp. 2d 957, 959 (S.D. Ohio 

2008); see Mark Niquette, GOP Sues in Federal Court Over Absentee Voting, Columbus Dispatch, Sept. 27, 2008, at 3B; see also Richard L. Hasen, The Voting Wars 110 (2012) (reporting on the secretary’s directive). 

8. Docket Sheet, Ohio Republican Party, No. 2:08-cv-913 (S.D. Ohio Sept. 26, 2008) 

[hereinafter Ohio Republican Party Docket Sheet]. 

Judge Smith died on April 15, 2020. Federal Judicial Center Biographical Directory of 

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

9. Motion, Project Vote, No. 1:08-cv-2266 (N.D. Ohio Sept. 28, 2008), D.E. 11. 

10. Motion, Ohio Republican Party, No. 2:08-cv-913 (S.D. Ohio Sept. 27, 2008), D.E. 7; 

Ohio Republican Party, 543 F.3d at 360. 

11. Order, Ohio Republican Party, No. 2:08-cv-913 (S.D. Ohio Sept. 28, 2008), D.E. 12, 

2008 WL 4445192; Transcript at 4–6, id. (Sept. 29, 2008, filed Sept. 30, 2008), D.E. 31 [hereinafter Sept. 29, 2008, Ohio Republican Party Transcript]; Ohio Republican Party, 543 F.3d at 

360. 

12. Ohio Republican Party Docket Sheet, supra note 8. 
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Federal Judicial Center 8/12/2023 3

attorney to arrive at the Cleveland courthouse.13 Judge Gwin agreed to commence the hearing as soon as the parties arrived.14

On Monday, Judge Gwin determined that Madison County’s violation of 

a directive by the secretary of state also violated both Ohio and federal law, 

and he issued a temporary restraining order.15 His twenty-two-page opinion 

was an effort to make a thorough record of his resolution of the motion while 

resolving the motion as quickly as possible.16

Also on Monday, Ohio’s supreme court determined that Ohio law required a newly registered voter to be registered for thirty days before the date 

of the election, not for thirty days before receiving an absentee ballot: 

[W]e hold that respondent, the secretary of state, correctly instructed 

boards of elections that an otherwise qualified citizen must be registered to 

vote for 30 days as of the date of the election at which the citizen offers to 

vote in order to be a qualified elector entitled to apply for and vote an absentee ballot at the election, and that the citizen need not be registered for 

30 days before applying for, receiving, or completing an absentee ballot for 

the election.17

Judge Smith’s Monday ruling had the benefit of Ohio’s supreme court’s 

ruling, to which he deferred.18 There was another issue not resolved by 

Ohio’s supreme court, and Judge Smith enjoined the secretary of state’s directive that county boards of elections are not required to allow election observers during the thirty-five days of absentee voting.19 On Tuesday, over a 

dissent, the federal court of appeals stayed Judge Smith’s order because “federal courts lack jurisdiction to enjoin state officials on the basis of state law”20

13. Motion, Project Vote, No. 1:08-cv-2266 (N.D. Ohio Sept. 29, 2008), D.E. 22. 

14. Order, id. (Sept. 29, 2008), D.E. 24. 

15. Opinion, id. (Sept. 29, 2008), D.E. 25, 2008 WL 4445176; Temporary Restraining Order, id. (Sept. 29, 2008), D.E. 26; Ohio Republican Party, 543 F.3d at 360; see Sept. 29, 2008, 

Ohio Republican Party Transcript, supra note 11, at 4–6; see also Peter Krouse, Courts Back 

Brunner on 30 Days to Cast Their Absentee Ballots, Cleveland Plain Dealer, Sept. 30, 2008, at 

B1; Mark Niquette & Tim Doulin, Three Courts Rule on Absentee Issue, Columbus Dispatch, 

Sept. 30, 2008, at 1B. 

16. Interview with Hon. James S. Gwin, Oct. 24, 2012. 

17. Ohio ex rel. Colvin v. Brunner, 896 N.E.2d 979, 982 (Ohio 2008); see Ohio Republican 

Party, 543 F.3d at 360; see also Hasen, supra note 7, at 110; Krouse, supra note 15; Niquette 

& Doulin, supra note 15. 

18. Ohio Republican Party Temporary-Restraining-Order Opinion, supra note 3, at 6; 

Ohio Republican Party, 543 F.3d at 360; see Sept. 29, 2008, Ohio Republican Party Transcript, 

supra note 11, at 56–57; see also Krouse, supra note 15; Niquette & Doulin, supra note 15. 

19. Ohio Republican Party Temporary-Restraining-Order Opinion, supra note 3, at 8; 

Temporary Restraining Order, Ohio Republican Party v. Brunner, No. 2:08-cv-913 (S.D. 

Ohio Sept. 29, 2008), D.E. 29; Sept. 29, 2008, Ohio Republican Party Transcript, supra note 

11, at 60; Ohio Republican Party, 543 F.3d at 360; Ohio Republican Party v. Brunner, 582 F. 

Supp. 2d 957, 959 (S.D. Ohio 2008); see Krouse, supra note 15; Niquette & Doulin, supra

note 15. 

20. Ohio Republican Party, 543 F.3d at 360–61 (citing Pennhurst State School & Hospital 

v. Halderman, 465 U.S. 89, 124–25 (1984)). 
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4 Federal Judicial Center 8/12/2023 

and it was unlikely that the plaintiffs would succeed in proving a federal 

claim.21

On October 9, Judge Smith granted a renewed motion for a temporary 

restraining order on an issue that had not yet been addressed; he ordered the 

secretary of state to comply with the Help America Vote Act (HAVA)22 by 

matching new voter registrations with information in the Ohio Bureau of 

Motor Vehicles and Social Security Administration databases so that possible 

voter fraud could be investigated.23

On the next day, by the same two-to-one vote as before, a panel of the 

court of appeals stayed Judge Smith’s order.24 Four days later, the full court of 

appeals vacated the panel’s stay.25 Three days after that, the Supreme Court 

overturned the court of appeals and vacated Judge Smith’s order, determining that the plaintiffs would be unlikely to prevail on whether they had a private right of action to pursue their HAVA claim.26

On November 4, the secretary of state moved to consolidate Judge 

Smith’s case with a case on voter identification that had been pending before 

Judge Algenon L. Marbley since October 24.27 On November 6, Judge Marbley granted the motion.28 On November 24, the Ohio Republican Party 

stipulated dismissal of its action.29 Ohio’s legislature passed legislation on 

21. Id. at 361–62. 

22. Pub. L. No. 107-252, 116 Stat. 1666 (2002), as amended, 52 U.S.C. §§ 20901–21145. 

See generally Marie Leary & Robert Timothy Reagan, The Help America Vote Act (Federal 

Judicial Center 2012); Symposium, HAVA @ 10, 12 Election L.J. 111 (2013). 

23. Ohio Republican Party, 582 F. Supp. 2d at 966; Temporary Restraining Order, Ohio 

Republican Party, No. 2:08-cv-913 (S.D. Ohio Oct. 10, 2008), D.E. 55; see Transcript, id.

(Oct. 9, 2008, filed Oct. 10, 2008), D.E. 57; see also Hasen, supra note 7, at 113; Darrel Rowland & Mark Niquette, Brunner Loses Lawsuit to GOP, Columbus Dispatch, Oct. 10, 2008, at 

1B; see Daniel P. Tokaji, HAVA in Court: A Summary and Analysis of Litigation, 12 Election 

L.J. 203, 210 (2013). See generally Richard L. Hasen, What to Expect When You’re Electing, 

Fed. Law., June 2012, at 39 (summarizing litigation over the HAVA issue). 

24. Opinion, Ohio Republican Party v. Brunner, No. 08-4322 (6th Cir. Oct. 10, 2008); see

Hasen, supra note 7, at 113; Mark Niquette, Brunner Won’t Need to Change Voter Lists, Columbus Dispatch, Oct. 11, 2008, at 1A; see Tokaji, supra note 23, at 210. 

25. Ohio Republican Party v. Brunner, 544 F.3d 711, 712 (6th Cir. 2008); see Hasen, supra note 7, at 114; Mark Niquette, Court Nullifies Brunner Ruling, Columbus Dispatch, Oct. 

17, 2008, at 1B; see Tokaji, supra note 23, at 210; Daniel P. Tokaji, Public Rights and Private 

Rights of Action: The Enforcement of Federal Election Laws, 44 Ind. L. Rev. 113, 118, 152–54 

(2010). 

26. Brunner v. Ohio Republican Party, 555 U.S. 5 (2008); see Hasen, supra note 7, at 116; 

Adam Liptak & Ian Urbina, Justices Block Effort to Challenge Ohio Voters, N.Y. Times, Oct. 

18, 2008, at A10; Mark Niquette, Voter Suit Goes to Ohio Justices, Columbus Dispatch, Oct. 

18, 2008, at 1A; see also Tokaji, supra note 23, at 210–13. 

27. Consolidation Motion, Ohio Republican Party, No. 2:08-cv-913 (S.D. Ohio Nov. 4, 

2008), D.E. 66; see NEOCH v. Brunner, 652 F. Supp. 2d 871, 876 (S.D. Ohio 2009) (case no. 

2:06-cv-896). 

28. Consolidation Order, Ohio Republican Party, No. 2:08-cv-913 (S.D. Ohio Nov. 6, 

2008), D.E. 73; see Ohio ex rel. Skaggs v. Brunner, 588 F. Supp. 2d 819, 821–22 (S.D. Ohio 

2008). 

29. Stipulation, Ohio Republican Party, No. 2:08-cv-913 (S.D. Ohio Nov. 24, 2008), D.E. 
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December 17 that would have reduced early voting from thirty-five days to 

twenty days,30 but the governor vetoed the legislation as too partisan for 

lame-duck election legislation.31

On December 24, Judge Gwin granted to the plaintiffs in his case a voluntary dismissal without prejudice.32

78. 

30. See Aaron Marshall, House GOP Acts to Shorten Early Voting Period, Cleveland Plain 

Dealer, Dec. 17, 2008, at B3; Jim Siegel, House Oks Elections Bill, Columbus Dispatch, Dec. 

17, 2008, at 1A. 

31. See Jon Craig, Strickland Vetoes Three Bills Passed Last Year by GOP, Cincinnati Enquirer, Jan. 7, 2009, at B2. 

32. Order, Project Vote v. Madison Cty. Bd. of Elections, No. 1:08-cv-2266 (N.D. Ohio 

Dec. 24, 2008), D.E. 43.