IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

SERVICE EMPLOYEES : 

INTERNATIONAL : 

UNION, LOCAL 1, et al., : Case No. 2:12-CV-562 

 : 

Plaintiffs, : 

 : 

 v. : JUDGE ALGENON L. MARBLEY 

 : 

JON HUSTED, et al., : 

 : Magistrate Terence P. Kemp 

 : 

 Defendants. : 

 : 

THE NORTHEAST OHIO COALITION : 

FOR THE HOMELESS, et al., : Case No. 2:06-CV-896 

 : 

Plaintiffs, : 

 : 

 v. : JUDGE ALGENON L. MARBLEY 

 : 

JON HUSTED, in his official capacity as : 

Secretary of the State of Ohio, : Magistrate Judge Terence Kemp 

 : 

 Defendant. : 

 : 

and : 

 : 

STATE OF OHIO : 

: 

Intervenor-Defendant : 

OPINION AND ORDER

I. INTRODUCTION

 These are two related actions in this Court: Service Employees’ International Union, 

Local 1, et. al. v. Husted, et. al., Case No. 2:12-cv-562 (“the SEIU case”) and The Northeast 

Ohio Coalition for the Homeless, et. al. v. Husted & State of Ohio, Case No. 2:06-cv-896 (“the 

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NEOCH case”). Before the Court are three distinct motions: (1) SEIU Plaintiffs’ Renewed 

Motion for Preliminary Injunction with Respect to Wrong-Location Provisional Ballots (SEIU 

Dkt. 84); (2) NEOCH Plaintiffs’ Motion to Modify April 19, 2010 Consent Decree (NEOCH 

Dkt. 338) and; (3) NEOCH Defendants’ Motion to Modify April 19, 2010 Consent Decree 

(NEOCH Dkt. 342). SEIU Plaintiffs promptly renewed their Motion in light of the Sixth 

Circuit’s Decision of October 11, 2012, affirming in part and reversing in part this Court’s 

injunction on the issues of “right-location, wrong-precinct” provisional ballots and provisional 

ballots with deficient affirmations. NEOCH v. Husted, ___ F.3d ___, 2012 WL 4829033 (6th 

Cir. October 11, 2012) (“the NEOCH appeal”). Following that remand, Plaintiffs and 

Defendants in the NEOCH case each moved to modify the April 19, 2010 Consent Decree. As 

these cases were consolidated for the purpose of appeal, the Court continues to recognize that 

consolidation on remand. Owing to the pendency of the November 6, 2012 election, at 

Defendants’ request, the Court ordered an expedited briefing schedule for these motions and 

heard oral argument on October 24, 2012. These issues have been fully briefed and are now ripe 

for decision. 

II. STATEMENT OF FACTS

A. The NEOCH Case 

The SEIU case and the NEOCH case, the subjects of a preliminary injunction and consent 

decree respectively, are both actions originally brought in this Court. Plaintiffs in both cases are 

groups of interested voters suing on behalf of their members to prevent the Secretary of the State 

of Ohio from disqualifying provisional ballots in the November 6, 2012 election, an alleged 

violation of Plaintiffs’ members’ constitutional rights. 

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 The NEOCH case began in 2006, when Plaintiffs challenged Ohio’s amended voter 

identification laws. The parties initially resolved the lawsuit, prior to a final adjudication on the 

merits, by entering a consent decree on April 19, 2010 (“the Consent Decree”). The Consent 

Decree, “among other provisions, mandated that the Board [of Elections] ‘may not reject a 

provisional ballot cast by a voter, who uses only the last four digits of his or her social security 

number as identification’ [“SSN-4 ballots”] if certain deficiencies in the ballot, including being 

cast ‘in the wrong precinct, but in the correct polling place,’ were the result of poll-worker 

error.” Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219, 233 (6th Cir. 2011) (“Hunter 

I”) (quoting Consent Decree, at ¶5). This Court upheld the validity of Consent Decree earlier 

this year, a ruling affirmed in part and remanded in part by the Sixth Circuit in the NEOCH 

appeal, issued on October 11, 2012. NEOCH, ___ F.3d ___, 2012 WL 4829033. Following the 

remand, Plaintiffs and Defendants both moved to modify the Consent Decree, based on the Sixth 

Circuit’s holding that treating SSN-4 ballots differently from provisional ballots obtained using 

other forms of identification likely violated equal protection under the Fourteenth Amendment. 

Id. at 14. 

B. The SEIU Case

 During the ongoing NEOCH litigation, in early 2012, a group of organizations sued Ohio 

Secretary of State Husted to challenge Ohio’s rules governing the counting of provisional ballots. 

This Court’s previous decision, SEIU Local 1 v. Husted, ___ F.Supp.2d ___ 2012 WL 3643064 

(S.D. Ohio Aug. 27, 2012) granted Plaintiffs’ request to enjoin the Secretary from disqualifying 

“right location, wrong precinct” provisional ballots resulting from “poll-worker error,” an 

injunction upheld in the NEOCH appeal. NEOCH, ___ F.3d ___, 2012 WL 4829033 at *13. 

The facts giving rise to the case are discussed in the prior decision. SEIU Local 1, ___ 

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F.Supp.2d ___ 2012 WL 3643064 at *2-10. On appeal, however, the Sixth Circuit vacated a 

portion of the preliminary injunction which required the Secretary to count provisional ballots 

cast with deficient affirmations, deficiencies which this Court found to be due to poll-worker 

error. NEOCH, ___ F.3d ___ 2012 WL 4829033 at *15-6. To support the instant Motion, 

Plaintiffs have combed the State’s “Incident Reports” from recent elections to identify numerous 

examples of poll-worker error causing provisional ballots cast in the wrong location, wrong 

precinct.

1

 They rely on their voluminous evidentiary record discussed in this Court’s previous 

SEIU decision. SEIU Local 1, ___ F.Supp.2d ___ 2012 WL 3643064 at *2-10. Plaintiffs’ 

Renewed Motion for Preliminary Injunction seeks to expand the scope of this Court’s prior 

“right location, wrong precinct” injunction to likewise enjoin the Secretary from disqualifying 

ballots cast in the wrong location and in the wrong precinct (“‘wrong location, wrong precinct’ 

ballots”) due to poll-worker error. 

III. SEIU PLAINTIFFS’ RENEWED MOTION FOR PRELIMINARY INJUNCTION 

A. Standard for Granting Preliminary Injunction 

 Plaintiffs’ Motion, to enjoin the Secretary from enforcing certain provisions of Ohio law 

in the upcoming November 6, 2012 election, invokes the four-factor balancing test for 

determining whether an injunction is appropriate under Fed. R. Civ. P. 65. The Court must 

weigh the following factors: 

(1) whether the movant has a strong likelihood of success on the merits; 

(2) whether the movant would suffer irreparable injury without the injunction; 

(3) whether issuance of the injunction would cause substantial harm to others; and 

(4) whether the public interest would be served by the issuance of the injunction. 

 

1

 See SEIU Dkt. 12 with attached Exhibits A – ZZ. 

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Hunter I, 635 F.3d at 233. These four factors “guide the discretion of the district court[;]” 

however, “they do not establish a rigid and comprehensive test.” Friendship Materials, Inc. v. 

Michigan Brick, Inc., 679 F.2d 100, 102 (6th Cir. 1982). Whether the combination of the factors 

weighs in favor of issuing injunctive relief in a particular case is left to the discretion of the 

district court. See Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir. 2000); see also Purcell v. 

Gonzalez, 549 U.S. 1, 4-5 (2007) (in reviewing an application to preliminarily enjoin operation 

of Arizona’s voter identification procedures, the Supreme Court recognized courts’ need to 

“weigh, in addition to the harms attendant upon issuance or nonissuance of an injunction, 

considerations specific to election cases’ additional exigencies,” and stated these complex 

determinations require “deference to the discretion of the District Court”). 

 The Secretary has argued previously that, for Plaintiffs to meet their burden to obtain a 

preliminary injunction, they must “establish [their] case” by “clear and convincing evidence.” 

(Secretary Opp., SEIU Dkt. 28 at 10) (citing Damon’s Rests., Inc. v. Eileen K Inc., 461 F. Supp. 

2d 607, 621 (S.D. Ohio Aug. 30, 2006)). While the Sixth Circuit has held that “the proof 

required for the plaintiff to obtain a preliminary injunction is much more stringent than the proof 

required to survive a summary judgment motion,” Leary, 228 F.3d at 739, the Circuit further 

clarified that “a party is not required to prove his case in full at a preliminary injunction hearing 

and the findings of fact and conclusions of law made by a court granting the preliminary 

injunction are not binding at trial on the merits.” Certified Restoration Dry Cleaning Network, 

L.L.C. v. Tenke Corp., 511 F.3d 535, 542 (6th Cir. 2007) (citations omitted). For a plaintiff to 

receive the requested injunction, “it is ordinarily sufficient if the plaintiff has raised questions 

going to the merits so serious, substantial, difficult, and doubtful as to make them a fair ground 

for litigation and thus for more deliberate investigation.” NEOCH, ___ F.3d ___, 2012 WL 

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4829033 (quoting Six Clinics Holding Corp., II v. Cafcomp Sys., Inc., 119 F.3d 393, 402 (6th 

Cir. 1997)). 

 A plaintiff has “the burden of establishing a clear case of irreparable injury and of 

convincing the Court that the balance of injury favor[s] the granting of the injunction.” Garlock, 

Inc. v. United Seal, Inc., 404 F.2d 256, 257 (6th Cir. 1968). In the election law context, “[t]hese 

[four] factors are not prerequisites that must be met, but are interrelated considerations that must 

be balanced together;” the factors do not each impose a distinct evidentiary burden on the 

Plaintiffs. Northeast Ohio Coalition for the Homeless v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 

2006) (stating, “[f]or example, the probability of success that must be demonstrated is inversely 

proportional to the amount of irreparable injury the movants will suffer absent the stay”).2

B. Law and Analysis

1. Likelihood of Success on the Merits

 Just as with the Plaintiffs’ motion for an injunction on the “right location, wrong 

precinct” issue, Plaintiffs bring their constitutional claims under 42 U.S.C. § 1983. A claim 

under 42 U.S.C. § 1983 has two elements: (1) the defendant must be acting under the color of 

state law; and (2) the offending conduct must deprive the plaintiff of rights secured by federal 

law. See League of Women Voters, 548 F.3d at 475. There is no dispute that the Secretary acts 

under the color of state law when enforcing Ohio’s election laws. 

The parties do dispute whether the Secretary’s actions and directives, specifically in 

directing county boards of election to reject provisional ballots cast at the “wrong location, 

wrong precinct,” deprive Plaintiffs’ members of their constitutional rights to equal protection and 

 

2

 In any event, the Secretary does not dispute that the prospective injury to Plaintiffs in this case—the complete 

denial of an individual’s right to vote—is irreparable. See, e.g., Miller v. Blackwell, 348 F. Supp. 2d 916, 922 (S.D. 

Ohio 2004). 

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due process under the Fourteenth Amendment. In light of the Sixth Circuit’s October 11, 2012 

Opinion, however, there is no longer any doubt that “the unreasonableness and fundamental 

unfairness of disqualifying wrong-precinct ballots caused by poll-worker error (equal protection 

and due process)” is a “likely constitutional violation[] . . . requiring injunctive relief.” NEOCH, 

___ F.3d ___ 2012 WL 4829033 at *9. While the Sixth Circuit affirmed this Court’s previous 

finding that disqualification of “right location, wrong precinct ballots” likely violates the equal 

protection and due process guarantees under the Fourteenth Amendment, there is no logical or 

legal rationale to distinguish the disqualification of “wrong location, wrong precinct” ballots, 

provided they are also attributable to poll-worker error. 

As the Sixth Circuit noted, when the state places a “substantial” burden on the right to 

vote – one that is greater than a “reasonable, nondiscriminatory restriction” but less than a 

“severe burden” – courts apply the Anderson/Burdick test. That test compels this Court to: 

weigh ‘the character and magnitude of the asserted injury to the rights protected 

by the First and Fourteenth Amendments that the plaintiff seeks to vindicate’ 

against ‘the precise interests put forward by the State as justifications for the 

burden imposed by its rule,’ taking into consideration ‘the extent to which those 

interests make it necessary to burden the plaintiffs’ rights.’ 

Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 

789 (1983)). Since there is no specific test for the validity of voting regulations, this Court 

simply “must weigh the burden on voters against the state’s asserted justifications and make the 

hard judgment that our adversary system demands.” Obama for America v. Husted, ___ F.3d 

___ 2012 WL 4753397 (6th Cir. October 5, 2012). 

 The burden on voters imposed by Ohio’s systemic disqualification of “wrong location, 

wrong precinct” ballots is substantial. Disqualification of one’s ballot is no victimless legal 

abstraction; it is disenfranchisement, the loss of the fundamental right to participate in the 

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democratic political process. To disenfranchise a single voter is a matter for grave concern, but 

the Sixth Circuit affirmed this Court’s finding that Ohio’s disqualification of provisional ballots 

in recent elections has far exceeded that: more than 14,000 provisional ballots were disqualified 

in 2008 and more than 11,000 were disqualified in 2010. NEOCH, 2012 WL 4829033 at *10. 

Unfortunately, the records kept by Ohio for those years do not allow us to distinguish between 

disqualifications for “right location, wrong precinct” and “wrong location, wrong precinct.” 

Ohio does, however, have such data for the 2011 election. In 2011, more than 1,800 disqualified 

provisional ballots were cast in the “right location, wrong precinct,” while more than 2,400 

disqualified ballots were cast in the “wrong location, wrong precinct.” (NEOCH Dkt. 9, Ex. B) 

The State of Ohio denied these citizens their right to vote by systemically disqualifying all 

ballots cast in the wrong location or wrong precinct, with no individual due process or inquiry 

into the cause of the ballot error. Although these disqualifications affect only “provisional 

ballots,” that fact “does not justify this additional burden; as . . . Ohio law now requires thirteen 

different categories of voters to cast provisional ballots, ranging from individuals who do not 

have an acceptable form of identification to those who requested an absentee ballot or whose 

signature was deemed by the precinct official not to match the name on the registration forms.” 

NEOCH, 2012 WL 4829033 at *11. 

 Over the course of this litigation, Plaintiffs have presented “voluminous evidence” of 

disqualifications due to poll-worker errors. Id. at *10. Plaintiffs’ Motion specifies four reasons 

for these errors with regard to “wrong location, wrong precinct” ballots, all of which have been 

documented to occur in recent elections: 

(1) Poll workers provide voters with the wrong-precinct ballots in the wrong 

location because poll workers incorrectly determine the voter’s precinct by 

misunderstanding the precinct location guide. 

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(2) Poll workers provide voters with the wrong-precinct ballots in the wrong 

location even though they know voters are not assigned to that precinct or 

location because poll workers do not understand such ballots are rejected. 

(3) Poll workers, under the misapprehension they are simply helping people to 

vote, distribute wrong-precinct ballots to all voters without attempting to 

locate their correct precinct because they do not understand such ballots are 

rejected. 

(4) Poll workers misdirect voters to cast wrong-precinct ballots in the wrong 

location as a result of incorrect direction from county boards. 

(SEIU Dkt. 84 at 14) These poll-worker errors are the same as those that resulted in “right 

location, wrong precinct” ballots being cast and rejected; the errors occur regardless of whether a 

voter arrives at the correct or incorrect polling location. Thus, the burden on voters imposed by 

Ohio’s disqualification of “wrong location, wrong precinct” provisional ballots caused by pollworker error is identical to the burden imposed by the disqualification of “right location, wrong 

precinct” provisional ballots caused by poll-worker error. The Sixth Circuit affirmed that burden 

to be an unconstitutional burden on the right to vote properly remedied by an injunction directing 

the Secretary of State to count “right location, wrong precinct” ballots caused by poll-worker 

error. NEOCH, 2012 WL 4829033 at *15. 

Defendants contend that “the requirement to vote in the right location is not a severe 

burden.” This Court agrees. If it were a severe burden, this Court would have to apply strict 

scrutiny to the challenged law. That is of no import, however, as the Court finds Ohio’s 

disqualification of “wrong location, wrong precinct” ballots is a substantial burden on the right to 

vote which is subject to the Anderson/Burdick test, as was the disqualification of “right location, 

wrong precinct” ballots. “Wrong location, wrong precinct” ballot disqualifications are, in one 

sense, still more troubling as there have been numerous instances in which poll workers have 

directed voters to incorrect polling locations, even when voters originally arrived at the correct 

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location.3

 Defendants’ rebuttal that there are multiple methods for voters to determine their 

polling location and precinct is unpersuasive because, as the Sixth Circuit stated, the law 

“effectively requires voters to have greater knowledge of their precinct, precinct ballot, and 

polling place than poll workers.” NEOCH, WL 4829033 at *11 (emphasis added). Furthermore, 

though Defendants’ brief suggests voters bear the responsibility of finding the correct polling 

location, the Sixth Circuit held only last year that: 

Ohio has created a system in which state actors (poll workers) are given the 

ultimate responsibility of directing voters to the right location to vote. Yet, the 

state law penalizes the voter when a poll worker directs the voter to the wrong 

precinct, and the penalty, disenfranchisement, is a harsh one indeed. To 

disenfranchise citizens whose only error was relying on poll-worker instructions 

appears to us to be fundamentally unfair. 

Hunter I, 635 F.3d at 243 (emphasis added). The Sixth Circuit did not deem it reasonable that an 

individual voter should be better able to navigate Ohio’s labyrinthine voting system than a 

trained poll worker, and neither does this Court. 

This Court, therefore, finds substantial the burden imposed on a citizen’s right to vote by 

automatically disqualifying a “wrong location, wrong precinct” provisional ballot where a poll 

worker caused the error. The State attempts to overcome the weight of the burden on the right to 

vote by relying, as it did in its previous appeal, on its interest in “maintaining a precinct-based 

voting system.” (Dkt. 87 at 9) The Sixth Circuit has recognized the State’s legitimate interest in 

precinct-based voting. Sandusky Cnty. Democratic Party v. Blackwell, 387 F.3d 565, 568-69 

 

3 See, e.g., SEIU Dkt. 12 ¶54 & 12-43 at 2 (Cuyahoga 2011 Incident Reports) (“I must inform you of the many (at 

least 40 voters) who were misguided and directed to vote at our station. Most of them informed me that they were 

sent by [a poll worker at another precinct] in error. Some of the voters claimed they were sent to as many as (3) 

different locations – by mistake.”); SEIU Dkt. 12 ¶54 & 12-45 at 10 (Franklin County 2011 Incident Reports) 

(“Polling Location sent them to another location 2 times.”); SEIU Dkt. 12 ¶54 & 12-41 at 12 (Clermont 2010 

Incident Reports) (“B of E employees sent a handicapped [provisional voter] to New Richmond when they belonged 

here . . . The difficulties of wandering around in the wrong place are amplified when in a wheelchair.”); SEIU Dkt. 

11 ¶5a &11-3 at 2 (Lucas County 2008 Incident Reports) (Voter “went to East Toledo Family Center where [she] 

voted in primary. There I was told to come to East Side Central . . . they told her . . . to go back to East Toledo 

Family Center – that the people there were ‘reading the book’ wrong.”). 

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(6th Cir. 2004). As this Court found previously, however, “[t]he relevance of Sandusky to the 

Plaintiffs’ challenges to Ohio law . . . is limited. Sandusky was decided before Ohio instituted its 

amended Voter ID requirements in 2006 . . . that case did not address the constitutionality of the 

precinct eligibility requirement as applied to provisional ballots cast in the wrong precinct as a 

result of poll-worker error.” SEIU Local 1, ___ F.Supp.2d ___ 2012 WL 3643064 at *19. 

The State argues that its interest in precinct-based voting would be imperiled by 

Plaintiffs’ proposed injunction because it is a “vote anywhere” remedy that would result in 

chaos. That argument mischaracterizes the requested relief and is incorrect. Plaintiffs’ Motion 

in no way requests a “‘vote anywhere’ injunction in each Ohio county.” A provisional ballot 

cast in the “wrong location, wrong precinct,” as with a provisional ballot cast in the “right 

location, wrong precinct,” will only be counted if caused by poll-worker error. If a voter 

attempts to cast her ballot at the wrong polling location, her ballot will not be counted unless the 

poll worker fails to perform her legal duty to inform the voter of: (1) her correct polling location 

and precinct; and (2) that her ballot will not be counted unless she casts it at her correct precinct. 

After receiving this information, if the voter insists on casting a ballot at the wrong location and 

in the wrong precinct, it will not be counted. Voters cannot vote anywhere. Voters can only 

vote in the correct precinct. Only if poll workers deny a voter her constitutional rights will her 

provisional ballot in the wrong precinct be counted. If poll workers obey the law, not a single 

vote cast in the wrong precinct will be counted in the November 6, 2012 election. 

 The State concedes that when a voter arrives in the wrong precinct, “[poll workers] must 

instruct the voter properly about travelling to the right place.” (SEIU Dkt. 87 at 8) Therefore, 

the only substantive dispute the State has with Plaintiffs’ proposed injunction is that it believes 

poll workers should not be required to “stop to record” their proper instructions to the wayward 

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voter. Regrettably, Plaintiffs’ evidence shows that under the current system, poll workers simply 

are not giving voters the proper instructions. (Dkt. 84 at fn. 4) The many recorded incidents of 

poll workers giving voters incorrect instructions demonstrate that there is no way to determine 

whether poll-worker error caused a provisional ballot to be cast in the wrong location without a 

written affirmation that poll workers have directed voters to the correct polling location. The 

State need not allow voters to vote anywhere but their own precinct, but it is reasonable that the 

State informs voters of that fact, and where they can legally vote, before disenfranchising them. 

 Significantly, expanding the scope of the current injunction to also encompass “wrong 

location, wrong precinct ballots” imposes minimal additional burden on the State. In response to 

this Court’s previous grant of a preliminary injunction regarding “right location, wrong precinct” 

ballots, the Secretary of State issued “Form No. 12-D” to the Boards of Election in September 

2012. Form No. 12-D instructs poll workers to “[c]omplete this form whenever a voter’s name 

does not appear in the signature poll book or poll list, the voter is in the wrong precinct of the 

correct multiple-precinct polling place and the voter insists on casting a provisional ballot in the 

wrong precinct.” Oddly and, perhaps, confusingly, however, “Step 3” instructs the poll worker 

to “[w]rite the name and address of the voter’s correct polling place below, if different from 

where you are now.” If these forms are only to be used when the voter arrives at the correct 

multiple-precinct polling location, “Step 3” is superfluous. As such, the Secretary of State has 

already produced a form which poll workers can use to satisfy the conditions of the injunction 

Plaintiffs seek here. In fact, the same form can be used for “right location, wrong precinct” 

voters and “wrong location, wrong precinct” voters. The only change needed would be to 

replace the phrase “the voter is in the wrong precinct of the correct multiple-precinct polling 

place” with “the voter is in the wrong precinct or incorrect polling place,” or words to that effect. 

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The State admitted at oral argument that the burden analysis of “wrong location, wrong precinct” 

disqualifications is essentially the same as that of “right location, wrong precinct” 

disqualifications, but contended the timing of this request for an injunction jeopardizes the public 

interest in orderly elections in a way the previous request did not. 

 Although the Court has considered and is empathetic to Defendants’ concern that October 

is “too late to change election rules, as a matter of principle and practicality,” that consideration 

does not outweigh the burden of denying the right to vote to thousands of Ohioans based on pollworker error, which is state action. (Dkt. 87 at 6) In the digital age, the actual changes required 

of the State in expanding the existing preliminary injunction to include “wrong location, wrong 

precinct” provisional voters are minimal. It is also worth noting that this Court twice expedited 

the litigation on this Motion, once of its own accord and then again on Defendants’ motion, in 

order to facilitate the State’s implementation of the election laws. The burden of re-drafting 

election materials and re-training of poll workers, though not negligible, is minor and does not 

justify widespread voter disenfranchisement. 

 Since the proposed injunction would have practical effects on the conduct of the election 

in Ohio’s precinct-based voting system, it is worth considering what those effects will be. In 

Sandusky the Sixth Circuit identified five advantages of Ohio’s precinct system, known as 

“Sandusky factors:” 

(1) it [the precinct system] caps the number of voters attempting to vote in the 

same place on election day; 

(2) it allows each precinct ballot to list all of the votes a citizen may cast for all 

pertinent federal, state, and local elections, referenda, initiatives, and levies; 

(3) it allows each precinct ballot to list only those votes a citizen may cast, 

making ballots less confusing; 

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(4) it makes it easier for election officials to monitor votes and prevent election 

fraud; and 

(5) it generally puts polling places in closer proximity to voter residences. 

Sandusky, 387 F.3d at 568-9. This Court explained, in granting Plaintiffs’ previous motion for 

an injunction regarding “right location, wrong precinct” ballots, that the State’s showing under 

these factors did not outweigh the substantial burden on the right to vote. The same analysis 

applies here with one difference; the injunction Plaintiffs seek here would apply to provisional 

voters at the wrong location as well as the wrong precinct. 

 Defendants note that “Ohio caps the number of voters attempting to vote in the same 

place on Election Day.” (Dkt. 87 at 12) The Court recognizes there are many good reasons to 

do that, but, as explained above, the proposed injunction is not “a decision to allow voters to vote 

anywhere in the county,” which “would be unmanageable due to lines, staffing, and other 

resource issues.” (Dkt. 87 at 13) The State’s assertion to the contrary is specious. Voters can 

only vote at their correct locations and in their correct precincts.4

 A ballot in the wrong location 

would only be counted if the poll worker failed to: (1) inform the voter that a vote cast there 

would not be counted; and (2) direct the voter to her correct polling place. Furthermore, there is 

no evidence in the record of any voter knowingly attempting to vote at a more conveniently 

located polling place, rather than her assigned location, whereas there is a great deal of evidence 

that poll workers have directed voters to the wrong polling place. 

 This leads to the State’s second misdirected argument: that “[w]ith a busy Election Day 

[it] would be nearly impossible for pollworkers to document every conversation with a voter 

about that voter’s proper location.” (Dkt. 87 at 13) The injunction would only require a poll-

 

4

 At oral argument Defendants raised the prospect of interested parties “gaming the system” by gathering van-loads 

of voters and taking them to the wrong location in order to overwhelm poll workers required to redirect them. This 

unlikely hypothetical pales in comparison to the documented incidents of poll workers actively directing or 

passively allowing voters to cast ballots in the wrong location. 

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worker to document a conversation with a voter who arrived at the wrong location if, in the 

words of Form No. 12-D, “the voter refused to travel to the correct precinct and insists on voting 

a wrong-precinct provisional ballot in this precinct.” For this to occur, a poll worker would have 

first directed the voter to the correct polling location and informed the voter that a ballot cast in 

that location and precinct would not be counted. This scenario is unlikely to occur. Logic 

dictates that the vast majority of voters, upon being told they are in the wrong location and their 

vote will not be counted, will either go to the correct polling place or choose not to vote. In 

either scenario, a poll worker need not fill-out the 12-D Form, or take any action to record the 

conversation. 

 The Court has now, as it must, “weigh[ed] the burden on voters against the state’s 

asserted justifications and make the hard judgment that our adversary system demands.” Obama 

for America v. Husted, ___ F.3d ___ 2012 WL 4753397 (6th Cir. October 5, 2012). It is clear 

that, under the law of the Sixth Circuit, the State of Ohio’s systemic disqualification of “wrong 

location, wrong precinct ballots” cast owing to poll-worker error is a substantial burden on the 

right to vote. Although the State has legitimate interests in maintaining a precinct-based voting 

system, these interests do not actually conflict with the injunction Plaintiffs’ seek. Nor do these 

interests outweigh, under the Burdick/Anderson test, the harm caused by disenfranchising 

thousands of voters whose “only error was relying on poll-worker instructions.” Hunter I, 635 

F.3d at 243. The Plaintiffs have satisfied their burden to show a likelihood of success on the 

merits. 

2. Remaining Preliminary Injunction Factors

 Given that in an election case the four preliminary injunction factors are “interrelated 

concerns” to “be balanced together,” neither party argued the three remaining factors at this stage 

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of the proceedings. Nevertheless, the Court considers all four factors and finds that when 

balancing all four, Plaintiffs have still satisfied their burden for the grant of an injunction. 

Defendants do not contest that denial of the right to vote constitutes irreparable harm. At the 

same time, for the same reasons stated by the Sixth Circuit in the NEOCH appeal granting this 

injunction harms neither the State, nor the public interest. It merely extends the injunction 

regarding “right location, wrong precinct” provisional ballots to “wrong location, wrong 

precinct” provisional ballots. Furthermore, as affirmed by the Sixth Circuit, the injunction which 

already issued from this Court is narrowly tailored to address the harm to Plaintiffs. 

3. Conclusion and Appropriate Injunctive Relief 

Plaintiffs have demonstrated they are likely to prevail on the argument that the 

disqualification of “wrong location, wrong precinct ballots” caused by poll-worker error is both a 

violation of equal protection and a denial of due process. Consideration of all four factors 

necessary to grant a preliminary injunction, including the public interest in orderly elections and 

the irreparability of the State’s denial of the right to vote, demonstrates the balance weighs 

definitively in favor of granting the injunction Plaintiffs seek. Therefore, Plaintiffs’ Motion for 

an Injunction with Respect to Wrong-Location Provisional Ballots is GRANTED. 

The Court determines the following preliminary injunction on the Board’s enforcement 

of Ohio law to be the appropriate relief, least restrictive upon the State, adequate to ensure the 

protection of Plaintiffs’ constitutional rights in the November 6, 2012 election. 

It is hereby ORDERED that, within five business days of this Order, Defendant 

Secretary of State shall issue a Directive requiring that Ohio’s county boards of election shall not 

reject any provisional ballot cast by a lawfully-registered voter in the November 6, 2012 election 

for the following reason: 

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1. The voter cast his or her provisional ballot in the wrong polling place, unless the poll 

worker who processed the voter’s provisional ballot has: 

a) determined the voter’s correct polling place and precinct and; 

b) directed the voter to the correct polling place and precinct; 

c) informed the voter that casting a provisional ballot in the wrong polling place would 

result in all votes on the ballot being rejected under Ohio law; and 

d) the voter refused to travel to the correct polling place and insisted on voting the invalid 

ballot; 

and the Board of Elections has verified that the polling place and precinct to which the poll 

worker directed the voter was the correct polling place and precinct. If the County Board cannot 

verify the poll worker directed the voter to the correct polling place and precinct, the votes cast 

on the provisional ballot must be counted in all races and for all issues for which the voter would 

have been eligible to vote if he or she had cast the ballot in the correct precinct. 

IT IS SO ORDERED.

IV. CROSS MOTIONS TO MODIFY CONSENT DECREE 

A. Law and Analysis 

 Following the Sixth Circuit’s remand of this Court’s grant of the injunction sought by 

Plaintiffs with regard to the “deficient affirmation” ballots, Plaintiffs and Defendants each 

moved to modify the Consent Decree and opposed the motions of their counterparts. Since both 

motions seek to modify the Consent Decree to which each party voluntarily agreed, the same 

statement of law applies to both motions. 

 The Consent Decree applies only to the counting of provisional ballots cast by voters who 

identify themselves with the final four digits of their social security numbers (“SSN-4 voters”). 

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The Sixth Circuit has now held that the section III(5)(b)(vi) of the Consent Decree, which orders 

that deficient affirmation ballots which are the result of poll-worker error be counted, constitutes 

“preferential treatment of SSN-4 provisional ballots.” Thus, the Sixth Circuit “join[ed] the 

parties and the district court in finding that the consent decree’s different treatment of similarly 

situated provisional ballots likely violates equal protection.” NEOCH v. Husted, ___ F.3d ___, 

2012 WL 4829033 at *14 (6th Cir. October 11, 2012). Given that holding, the issue before this 

Court is not whether the differential treatment of “deficient affirmation” ballots under the 

Consent Decree is an equal protection violation, but rather the proper remedy for that violation. 

The Plaintiffs contend that this Court should expand the protection given to SSN-4 voters by 

Section III(5)(b)(vi) and issue a statewide injunction directing the State to count all provisional 

ballots with deficient affirmations “caused by poll worker error,” regardless of the form of 

identification provided. Defendants, in contrast, request the Court excise that section of the 

Consent Decree such that the State is not required to count provisional ballots with deficient 

affirmations. 

 Federal Rule of Civil Procedure 60(b)(5) allows the Court to “relieve a party . . . from a 

final judgment” if “applying it prospectively is no longer equitable” or for “any other reason that 

justifies relief.” Usually, a movant seeking to modify a consent decree bears the burden to show 

the proposed modification is justified. NEOCH, 2012 WL 4829033 at *18-9 (citing Fed. R. Civ. 

P. Rule 60(b)(5)); Northridge Church 647 F.3d at 613-14. In the instant case, the Sixth Circuit 

has relieved both parties of their burdens in holding that the Consent Decree as currently drafted 

violates equal protection. On remand, the Sixth Circuit left no doubt that this Court must modify 

the Consent Decree. The Court now decides whether to grant Plaintiffs’ or Defendants’ 

proposed modification. 

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The relief Plaintiffs’ seek by moving to modify the Consent Decree, however, is precisely 

that which the Sixth Circuit explicitly denied them in the NEOCH decision. Based on the same 

arguments Plaintiffs make here, this Court previously granted the SEIU Plaintiffs an injunction 

which, in relevant part, stated: 

Ohio’s county boards of elections may not reject any provisional ballots cast by 

lawfully-registered voters in the November 2012 general election for the [] 

reason[] [that] [t]he provisional ballot envelope does not contain a voter signature 

. . . and/or the provisional ballot envelope does not contain the voter’s full printed 

name . . . and/or the voter did not sign and/or print the voter’s name in the correct 

place(s) on the ballot envelope . . . 

 SEIU Local 1, 2012 WL 3643064 at *30. The Sixth Circuit vacated that portion of the 

injunction, simultaneously holding that in the evidentiary record to date, “all of the identified 

deficiencies arise from voters’ failure to follow the form’s rather simple instructions,” and not 

poll-worker error. NEOCH, 2012 WL 4829033 at *15 (emphasis added). Plaintiffs are correct 

that the Sixth Circuit did not hold that deficient affirmations could never be the result of pollworker error. The Sixth Circuit did hold, however, that “the spotty record and Ohio law do not 

support the district court’s presumption of poll-worker error, we find no likely constitutional 

violation.” Id. Since the Sixth Circuit has now held the instances of deficient affirmations 

supported by evidence are actually the result of voter error, not poll-worker error, it is not 

unconstitutional for the State to disqualify those ballots. This Court’s power to issue an 

injunction against the State is predicated on the State denying constitutional rights to citizens. 

Here, the Sixth Circuit held that, on the record as it stands, there is no denial of constitutional 

rights when the State disqualifies a provisional ballot because the voter’s affirmation is deficient. 

Thus, this Court has no power to enjoin the State with regard to the deficient affirmation ballots. 

Plaintiffs argued at the October 24, 2012 hearing that they only seek an injunction to 

order the counting of ballots with deficient affirmation due to “poll-worker error.” The problem 

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for Plaintiffs is that they have adduced no evidence that deficient affirmations are ever the result 

of poll-worker error. The only proposed examples of poll-worker error resulting in a deficient 

affirmation in either the NEOCH or SEIU case the Sixth Circuit explicitly held to be unsupported 

by evidence. Put another way, without something more in the way of evidence of poll-worker 

error, there is no ipso facto violation of equal protection or due process when the State 

disqualifies provisional ballots suffering from those defects. 5

Furthermore, the prospective relief Plaintiffs seek here is an extraordinary remedy, and 

even if the request is couched as a modification of the Consent Decree, this Court cannot grant 

such broad relief without any evidence to support it. The Consent Decree ordered the State, in 

Section III(5)(b), to count provisional ballots if: 

vi. The voter did not complete or properly complete and/or sign the provisional 

ballot application for reasons attributable to poll worker error; or 

vii. The poll worker did not complete or properly complete and/or sign the 

provisional ballot application witness line and/or the provisional ballot 

affirmation form, except for reasons permitted by the governing statues. 

Critically, Section III(5)(b)(vii) remains in the Consent Decree to ensure no provisional ballot is 

disqualified when a poll worker fails to complete her designated portion of the envelope and the 

State does not dispute that. SEIU Dkt. 28 at 17. Directive 2012-01, which Secretary Husted 

 

5

 The Court observes that the Sixth Circuit’s holding in the NEOCH appeal appears to conflict with its statement in 

Hunter, approvingly quoted in another part of the NEOCH appeal, that “[t]o disenfranchise citizens whose only error 

was relying on poll-worker instructions appears to us to be fundamentally unfair.” While this Court recognizes the 

Sixth Circuit made that statement in the context of poll workers directing, or failing to direct, voters to the proper 

location and precinct, it is equally applicable to the issue of deficient affirmations. The State has created the 

instrumentalities of voting, such as the provisional ballot. These forms have, at times, even confused these litigants 

and this Court, so they are certain to confuse some voters. It is unreasonable to believe most voters who produce 

ballots with deficient affirmations purposefully affirm their provisional ballots in a deficient manner. Citizens who 

take the time to vote are unlikely to act affirmatively in order to disqualify their vote. By analogy to the rule of 

drafting in contract law, the Court suggests ambiguities in the form should be construed against the drafter, here, the 

State, not the well-intentioned voter. When the State disqualifies a deficient affirmation ballot, it shifts the rule of 

drafting to burden the non-drafting party, the voter. That state action to deprive the franchise of a citizen attempting 

to cast a ballot in good faith also raises serious substantive due process concerns. It would seem a simple matter for 

a poll worker to glance over the provisional ballot to ensure the voter has signed and written in the correct places; 

that is what the Hunter logic suggests to this Court. That was not the logic adopted by the NEOCH panel, and thus, 

this Court follows the NEOCH panel in its departure from Hunter I in this case. 

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issued on January 4, 2012, expressly instructed county boards of election that provisional ballots 

are not to be rejected if the poll worker fails to fill out his or her portion of the provisional ballot 

envelope. As to Section III(5)(b)(vi), the Sixth Circuit’s NEOCH decision renders it irrelevant. 

B. Conclusion 

 Both parties concur that the Consent Decree as it currently reads cannot stand in light of 

the Sixth Circuit’s October 11, 2012 Decision. To treat deficient affirmation ballots differently 

for SSN-4 voters would deny equal protection to those provisional voters using alternative forms 

of identification. The sole issue is whether to excise the deficient affirmation clause from the 

Consent Decree or, in the alternative, to require the State to count all provisional ballots with 

deficient affirmations. This Court’s power to issue an injunction against the State is predicated 

on the State denying constitutional rights to citizens. The Sixth Circuit held that on the record as 

it stands there is no denial of constitutional rights when the State disqualifies a provisional ballot 

because the voter’s affirmation is deficient. In the proceedings in this Court, Plaintiffs have 

adduced no further evidence to the contrary. Thus, this Court has no power to enjoin the State 

with regard to the deficient affirmation ballots and the appropriate remedy is to excise Section 

III(5)(b)(vi) of the Consent Decree.6

 The Court hereby GRANTS Defendants’ Motion to Modify the April 19, 2010 Consent 

Decree and DENIES Plaintiffs’ Motion to Modify the April 19, 2010 Consent Decree. As a 

 

 

6

 It is worth reiterating that the Sixth Circuit did not hold a deficient affirmation could never be the result of pollworker error, nor does the Court find that here. Indeed, there are numerous scenarios the Court can imagine in 

which poll-worker error might result in a deficient affirmation. For instance, a poll-worker might mistakenly 

instruct a voter to sign in the wrong place, or tell her it is not necessary to both sign and print her name. At this 

stage of the litigation, however, there is no evidence of such events ever having occurred. In the absence of 

evidence, it is not appropriate to grant prospective relief. If evidence comes to light in the future, however, that pollworkers have caused deficient affirmations, it would be appropriate for this Court to revisit the issue. 

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result, Section III(5)(b)(vi) of the Consent Decree relating to “deficient affirmation” provisional 

ballots is, hereby, VACATED. 

IT IS SO ORDERED. 

 s/Algenon L. Marbley 

 Algenon L. Marbley 

United States District Judge 

Dated: October 26, 2012 

 

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