CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 10/31/2023 1

Last-Minute Absentee Voting 

by Last-Minute Prisoners 

Fair Elections Ohio v. Husted (Susan J. Dlott 

and S. Arthur Spiegel, 1:12-cv-797) and Mays v. Husted 

(Michael H. Watson, 2:18-cv-1376) (S.D. Ohio) 

Prisoner-rights organizations filed a federal complaint seeking provisions ensuring the ability to vote by voters detained during the 

days immediately preceding the 2012 general election. The district 

judge denied the plaintiffs immediate relief because they had not 

presented compelling evidence of disfranchisement. The state’s accommodations for persons with medical emergencies on election 

day did not create an equal protection violation because of the different burdens placed on election officials. After the case was transferred to another judge in 2014, and after additional discovery, the 

second judge granted the plaintiffs summary judgment on a showing that the burden on disfranchised voters outweighed the burden 

on accommodating late-jailed voters. The court of appeals determined, over a dissent, however, that the plaintiff organizations did 

not have standing. A lawsuit filed in 2018 by two persons arrested 

over the weekend before election day and detained through election 

day was successful for them. The judge later granted summary 

judgment to a certified plaintiff class. The court of appeals, however, determined that the franchise burden on arrested voters was 

modest and justified by election officials’ burdens in providing new 

prisoners with ballots. 

Subject: Absentee and early voting. Topics: Prisoner voters; 

equal protection; absentee ballots; class action. 

Litigation begun in 2012 to provide absentee voting rights to voters arrested 

and detained just before election day was ultimately unsuccessful for reasons 

of standing. But litigation begun in 2018 by two plaintiffs detained beginning 

the weekend before election day was successful for those two plaintiffs. The 

court of appeals ultimately determined that it was constitutional to provide 

ballots to voters who were unexpectedly hospitalized but not to voters who 

were unexpectedly arrested during the few days before an election. 

2012 Case 

Five prisoner-rights organizations filed a federal complaint in the Southern 

District of Ohio’s Cincinnati courthouse on October 15, 2012, “to ensure that 

eligible electors who are jailed the weekend before Election Day and who remain confined through Election Day are afforded the right to vote.”1

 The 

plaintiffs named as defendants Ohio’s secretary of state, Ohio’s attorney general, and the chair of Hamilton County’s board of elections, who was named 

1. Complaint, Fair Elections Ohio v. Husted, No. 1:12-cv-797 (S.D. Ohio Oct. 15, 2012), 

D.E. 1. 
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2 Federal Judicial Center 10/31/2023 

as a representative for “all members of County Boards of Elections.”2 With 

their complaint, the plaintiffs filed a motion for a temporary restraining order.3

Judge Susan J. Dlott held a telephonic status conference on October 16, 

set another telephonic conference for two days later, and issued a list of questions for the parties to address at the second conference.4

 The questions pertained to numbers of voters likely to be affected and the parties’ standing.5

An amended complaint on October 18 named five additional board-ofelections chairs for Southern District counties.6

 Judge Dlott set a hearing on 

the motion for a temporary restraining order for October 23.7

Judge Dlott denied the plaintiffs immediate relief.8

 She found that the 

plaintiffs had standing because the injury complained of had an impact on 

one or more plaintiff organization’s allocation of resources.9

 The plaintiffs 

did not, however, present sufficiently compelling evidence of disfranchisement: 

[The plaintiffs presented evidence that] approximately forty-four percent of the people arrested during the weekend prior to the election will be 

registered to vote. Plaintiffs have submitted no evidence to demonstrate 

what percentage of those individuals will actually be prevented from voting, 

given that they will have already had an opportunity during the month prior to the election to request an absentee ballot or to take advantage of 

Ohio’s in-person early voting system. Nor have Plaintiffs submitted any evidence to demonstrate the percentage of those individuals who are likely not 

only to be arrested during the weekend prior to the election but also detained through the actual election.10

Ohio’s statutory accommodation for medical emergencies on election day 

did not violate equal protection, because medical emergencies and sudden 

detentions following arrests are not similar situations with respect to the 

burdens placed on election officials.11

A second amended complaint filed on February 8, 2013, by three of the 

original plaintiffs named only Ohio’s secretary of state and its attorney gen2. Id. at 6–8. 

3. Temporary-Restraining-Order Motion, id. (Oct. 15, 2012), D.E. 2. 

4. Order, id. (Oct. 16, 2012), D.E. 10 [hereinafter Oct. 16, 2012, Fair Elections Ohio Order]; Docket Sheet, id. (Oct. 15, 2012). 

5. Oct. 16, 2012, Fair Elections Ohio Order, supra note 4. 

6. Amended Complaint, Fair Elections Ohio, No. 1:12-cv-797 (S.D. Ohio Oct. 18, 2012), 

D.E. 12. 

7. Notice, id. (Oct. 18, 2012), D.E. 11; see Transcript, id. (Oct. 23, 2012, filed Oct. 24, 

2012), D.E. 24 (afternoon session); Transcript, id. (Oct. 23, 2012, filed Oct. 24, 2012), D.E. 23 

(morning session); Minutes, id. (Oct. 24, 2012), D.E. 22; see also Ohio Denies Recently Jailed 

Voters, Suit Says, Cincinnati Enquirer, Oct. 24, 2012, at B5. 

8. Opinion, Fair Elections Ohio, No. 1:12-cv-797 (S.D. Ohio Nov. 1, 2012), D.E. 30 [hereinafter Nov. 1, 2012, Fair Elections Ohio Opinion], 2012 WL 5414454; see Judge Won’t Alter 

Election Law for Inmates, Cincinnati Enquirer, Nov. 2, 2012, at C3. 

9. Nov. 1, 2012, Fair Elections Ohio Opinion, supra note 8, at 21–25. 

10. Id. at 30–31. 

11. Id. at 32–34. 
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Federal Judicial Center 10/31/2023 3

eral as defendants.12 The court transferred the case to Judge S. Arthur Spiegel 

on August 20, 2014.13 Following the parties’ period of discovery, Judge Spiegel granted the plaintiffs summary judgment on September 16.14

The plaintiffs proffered “expert evidence that at least, if not more than, 

400 late-jailed voters state-wide were impeded from voting in the 2012 election.”15 “The Court further finds late-jailed electors are similarly-situated to 

late-hospitalized electors whom the boards of election already accommodate. 

The boards of election teams should have no trouble locating late-jailed electors, as they literally have a captive audience.”16 “[T]here is no genuine dispute that African-Americans are disproportionately affected by this policy.”17

Moreover, “[t]hose detainees who can post bond can also vote, whereas those 

who cannot, cannot. As such, Ohio’s denial of the ability to vote to late-jailed 

electors acts as an unconstitutional wealth-based voting restriction.”18

On October 24, a panel of the court of appeals, over a dissent, vacated 

Judge Spiegel’s summary judgment and ordered the case dismissed, finding 

that the plaintiffs lacked standing.19 On the one hand, the court held, allocation of resources to advise persons how to comport with the law or to seek a 

change in the law cannot be sufficient to afford standing to challenge the 

law.20 On the other hand, the relationship between the organizations and 

election-weekend detainees is insufficient to afford third-party standing.21

2018 Case 

On the day of the 2018 general election, two plaintiffs who had been arrested 

for misdemeanors on Friday or Saturday night filed a class-action federal 

complaint against Ohio’s secretary of state in the Southern District seeking 

absentee-voting accommodations comparable to hospitalized voters’ for voters detained over the weekend.22

12. Second Amended Complaint, Fair Elections Ohio, No. 1:12-cv-797 (S.D. Ohio Feb. 8, 

2013), D.E. 53. 

13. Order, id. (Aug. 20, 2014), D.E. 121. 

Judge Spiegel died on December 31, 2014. Federal Judicial Center Biographical Directory 

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

14. Fair Elections Ohio v. Husted, 47 F. Supp. 3d 607 (S.D. Ohio), rev’d, 770 F.3d 456 

(6th Cir. 2014); see Dan Horn, Arrest in Days Before Election Won’t Stop Vote, Cincinnati 

Enquirer, Sept. 18, 2014, at A7; Alan Johnson, Jailed and Can’t Post Bail? Ballot Will Come to 

You, Columbus Dispatch, Sept. 18, 2014, at 4B. 

15. Fair Elections Ohio, 47 F. Supp. 3d at 611 (punctuation slightly altered for clarity). 

16. Id. at 615. 

17. Id. at 617. 

18. Id. at 615. 

19. Fair Elections Ohio, 770 F.3d 456 (opinion by Circuit Judge John M. Rogers, joined 

by Circuit Judge Deborah L. Cook); see id. at 461–64 (dissenting opinion by Circuit Judge R. 

Guy Cole, Jr.); see also Order, Fair Elections Ohio v. Husted, No. 1:12-cv-797 (S.D. Ohio 

Nov. 20, 2014), D.E. 128 (dismissing the case). 

20. Fair Elections Ohio, 770 F.3d at 460. 

21. Id. at 461. 

22. Complaint, Mays v. Husted, No. 2:18-cv-1376 (S.D. Ohio Nov. 6, 2018), D.E. 1; Mays 

v. LaRose, 951 F.3d 775, 780–81 (6th Cir. 2020). 
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4 Federal Judicial Center 10/31/2023 

Judge Michael H. Watson heard the case at 1:00 p.m.23 When asked why 

the complaint was not filed until Tuesday, the plaintiffs’ attorney said that it 

could not be known that they would be detained on Tuesday until their arraignment the day before.24 At 1:57, Judge Watson announced that he was 

going to grant relief to the individual plaintiffs.25 He ordered personal delivery of absentee ballots to the plaintiffs by 5:30, a wait for their casting, collection of the ballots for counting, and notice to detention authorities of the 

court’s order.26 “The Court concludes that it would be impractical, if not logistically impossible, to grant any class-wide [temporary-restraining-order] 

relief this late on Election Day . . . .”27

One year later, Judge Watson certified a plaintiff class and granted it 

summary judgment: persons suddenly confined to jail on election day had to 

be given the same opportunities for absentee voting as persons suddenly confined to hospital on election day.28

The court of appeals determined to the contrary on March 3, 2020, that 

Ohio’s secretary of state had 

identified several counties that do not have adequate resources to process 

late absentee ballot requests from unexpectedly jail-confined electors without foregoing other duties necessary to ensure the orderly administration of 

Ohio’s elections. Thus, he has shown that the State’s interests are important 

and weighty enough to overcome the moderate burden that Ohio’s disparate treatment of confined electors imposes on Plaintiffs.29

23. Transcript, Mays, No. 2:18-cv-1376 (S.D. Ohio Nov. 6, 2018, filed Dec. 10, 2018), 

D.E. 20. 

24. Id. at 15–16. 

25. Id. at 20; see Mays, 951 F.3d at 781. 

26. Injunction, Mays, No. 2:18-cv-1376 (S.D. Ohio Nov. 6, 2018), D.E. 12 [hereinafter

Mays Injunction]; see Eric Heisig, Judge Orders That 2 Jailed Voters Be Given Ballots, Cleveland Plain Dealer, Nov. 7, 2018, at A22. 

27. Mays Injunction, supra note 26, at 2. 

28. Opinion, Mays v. LaRose, No. 2:18-cv-1376 (S.D. Ohio Nov. 6, 2019), D.E. 70; see

Mays, 951 F.3d at 781; see also Randy Ludlow, Federal Judge Sides with Prisoners in Voting 

Case, Cincinnati Enquirer, Nov. 12, 2019, at A9. 

29. Mays, 951 F.3d at 791.