RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 20a0068p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

TOMMY RAY MAYS, II and QUINTON NELSON SR., 

individually and on behalf of all others similarly 

situated, 

Plaintiffs-Appellees,

v.

FRANK LAROSE, in his official capacity as Secretary of 

State of Ohio, 

Defendant-Appellant.

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No. 19-4112

Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 2:18-cv-01376—Michael H. Watson, District Judge.

Argued: February 13, 2020

Decided and Filed: March 3, 2020

Before: MERRITT, THAPAR, and NALBANDIAN, Circuit Judges. 

_________________

COUNSEL

ARGUED: Zachery P. Keller, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, 

Ohio, for Appellant. Mark P. Gaber, CAMPAIGN LEGAL CENTER, Washington, D.C., for 

Appellees. ON BRIEFS: Zachery P. Keller, Benjamin M. Flowers, Michael J. Hendershot, 

Ann Yackshaw, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for 

Appellant. Mark P. Gaber, Danielle M. Lang, Jonathan M. Diaz, Dana Paikowsky, CAMPAIGN 

LEGAL CENTER, Washington, D.C., Naila S. Awan, Kathryn C. Sadasivan, DĒMOS, New 

York, New York, Chiraag Bains, DĒMOS, Washington, D.C., Jonathan Manes RODERICK 

AND SOLANGE MACARTHUR JUSTICE CENTER, Chicago, Illinois, for Appellees.

>
No. 19-4112 Mays v. LaRose Page 2

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OPINION

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NALBANDIAN, Circuit Judge. There is no dispute that Ohio is generous when it comes 

to absentee voting—especially when compared to other states. Any registered voter may cast 

their vote by absentee ballot, for any reason or no reason at all, starting about a month before 

election day. But there are limits. The State requires almost all registered voters to request an 

absentee ballot by noon, three days before Election Day. The lone exception is for unexpectedly 

hospitalized electors. Those electors may request an absentee ballot until 3 p.m. on Election 

Day. 

Here, police arrested Plaintiffs Tommy Ray Mays, II and Quinton Nelson Sr. the 

weekend before Election Day 2018. Foreseeing their confinement lasting through the upcoming 

election, and with no other way to vote, they sued Ohio’s Secretary of State for access to 

absentee ballots. They brought this suit on behalf of themselves and a class of similar 

individuals. The suit alleges an Equal Protection claim, challenging the State’s disparate 

treatment of hospital-confined and jail-confined electors, and a First Amendment claim, 

challenging Ohio’s absentee ballot request deadline, both as applied to unexpectedly jailconfined electors. The trial court granted both plaintiffs a temporary restraining order that 

permitted them to vote in November 2018. But the court declined to extend that relief to the 

class.

Following the November 2018 election, Plaintiffs requested class certification and both 

sides moved for summary judgment. The district court certified the class and granted summary 

judgment for Plaintiffs and those similarly situated, holding that the burden Ohio’s disparate 

treatment of hospital-confined and jail-confined electors places on Plaintiffs’ right to vote is not 

justified by a strong enough State interest. We disagree and now REVERSE the district court’s 

grant of summary judgment to Plaintiffs, REVERSE the district court’s denial of summary 

judgment to LaRose, and REVERSE the district court’s certification of a class.
No. 19-4112 Mays v. LaRose Page 3

I. Background

Police arrested Nelson around 10 p.m. on Friday, November 2, 2018. The next day, 

Saturday, November 3, 2018, police arrested Mays shortly after 7 p.m. Neither Mays nor Nelson 

had taken advantage of Ohio’s early in-person or absentee voting opportunities and both 

Plaintiffs declared that they intended to vote in-person on Election Day. But neither Plaintiff 

could post bail. And after their arraignments both Plaintiffs realized they would remain in jail 

through Election Day—meaning they would be unable to vote in-person on Election Day. Mays 

asked jail officials if the State would allow him to vote but he never received an answer. Nelson 

never asked anyone at the jail if he could vote but he testified that even after the booking process 

was complete, he had no access to mail supplies, outside visitors, or any other way to contact the 

Board of Elections.

Under Ohio law, registered voters (“electors”) have three options for casting their vote. 

Any elector, including non-felon jail-confined electors, may vote absentee, so long as they 

deliver their request for an absentee ballot to the Board of Elections by noon, three days before 

Election Day.1 Ohio Rev. Code Ann. §§ 3509.02, 3509.03. There is a single exception to this 

otherwise generally applicable deadline: electors who themselves, or whose minor children, are 

hospitalized because of an unforeseeable accident or medical emergency that occurs after the 

deadline has passed may request an absentee ballot until 3 p.m. on Election Day. Ohio Rev. 

Code Ann. § 3509.08(B); (R. 55-34, Ohio Election Office Manual at PageID # 3016.) And 

electors may vote in person, either at their designated polling place on Election Day or during the 

early voting period at each county’s designated early voting center.2 Ohio Rev. Code Ann. 

§§ 3501.32, 3509.051.

By Election Day morning, Plaintiffs realized they had no remaining option to vote. So 

they sued Ohio’s Secretary of State (“the Secretary”) on behalf of themselves and similarly 

1Electors may begin submitting absentee requests as early as January 1 of the election year or ninety days 

before Election Day, whichever is earlier. Ohio Rev. Code Ann. § 3509.03(D).

2

In-person early voting begins the day after voter registration closes. It runs for around four weeks through 

the day before Election Day and includes opportunities to vote in the evenings and on weekends. (R. 55-34, Ohio 

Election Official Manual at PageID # 3010–12); see also Obama for America v. Husted, 697 F.3d 423, 426–28, 437 

(6th Cir. 2012).
No. 19-4112 Mays v. LaRose Page 4

situated jail-confined electors.3 They alleged that Ohio’s refusal to allow jail-confined electors 

to request an absentee ballot on the same terms as hospital-confined electors violates the Equal 

Protection Clause of the federal Constitution’s Fourteenth Amendment. They further alleged 

that Ohio’s generally applicable deadline for requesting absentee ballots violates the First 

Amendment’s guarantee of the right to vote, as applied to jail-confined electors with no other 

way to vote. Last, Plaintiffs sought to certify a class under Federal Rule of Civil Procedure 23, 

seeking relief for all jail-confined electors who the State arrested after close of business on the 

Friday before the election, who had not voted early, and who would remain in jail through 

Election Day.

The district court granted a temporary restraining order against the Secretary, requiring 

him to provide absentee ballots to Mays and Nelson on Election Day. Following discovery, both 

parties moved for summary judgment. The district court certified the Plaintiffs’ proposed class, 

granted the Plaintiffs’ motion for summary judgment on their Equal Protection claim, and denied 

the Secretary’s motion for summary judgment. The Secretary appeals.

II. Standing

“Every federal appellate court has a special obligation to assure itself . . . of its own 

jurisdiction[.]” Alston v. Advanced Brands & Importing Co., 494 F.3d 562, 564 (6th Cir. 2007) 

(citation omitted). So we directed the parties to address Plaintiffs’ standing in supplemental 

briefing. They agree that Plaintiffs have standing to bring their claims. And for the most part 

they are correct.

Article III imposes three standing requirements for plaintiffs in federal court: an injuryin-fact, causation, and redressability. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). 

The only one that raises concerns here is causation. That requirement is met when there is a 

causal connection between a plaintiff’s injury and the conduct complained of, that is, the injury 

must be “fairly traceable to the challenged action of the defendant, and not the result of the 

independent action of some third party not before the court.” Id. (cleaned up). Because a 

3Plaintiffs originally named Jon Husted as Defendant. Frank LaRose succeeded Husted as Secretary of 

State of Ohio in January 2019 and accordingly replaced Husted as Defendant.
No. 19-4112 Mays v. LaRose Page 5

combination of Ohio’s deadline for requesting an absentee ballot and the State’s confinement of 

Plaintiffs caused their inability to vote, Plaintiffs have standing to bring their claims.

The Secretary concedes police arrested Mays after the deadline to request an absentee 

ballot had passed, that he asked jail officials if he could vote from jail, and that he could not post 

bail and remained in jail through Election Day. (Appellant’s Suppl. Br. at 1–2.) Whether Mays 

actually requested an absentee ballot once jailed is immaterial because any such request would 

have been futile. Ohio law sets a deadline of noon, three days before Election Day for any 

elector to request an absentee ballot. Ohio Rev. Code Ann. §§ 3509.02, 3509.03. While the 

State allows unexpectedly hospital-confined electors an extended deadline, that exception does 

not apply to unexpectedly jail-confined electors. Ohio Rev. Code Ann. § 3509.08(B); (R. 55-34, 

Ohio Election Office Manual at PageID # 3016.) So by the time police arrested Mays, he had no 

way to request an absentee ballot under Ohio law. And because the State confined Mays through 

Election Day, he could not vote in-person, either early or on Election Day.

When doing so would be futile, Article III does not require plaintiffs to take actions 

simply to establish standing. Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 392–93 

(1988); Clements v. Fashing, 457 U.S. 957, 962 (1982); Int’l Bhd. of Teamsters v. United States, 

431 U.S. 324, 365–66 (1977). Whether Mays asked to vote absentee from jail is irrelevant 

because at the time police arrested Mays, Ohio law dictated that there was no way for him to 

request an absentee ballot. So it was the State’s absentee ballot request deadline and 

confinement of Mays that caused his inability to vote. 

The Plaintiffs are not similarly situated, however, with regard to the Equal Protection 

issue. Ohio law treats hospital-confined and jail-confined electors differently: the State gives 

unexpectedly hospital-confined electors an extended deadline to request an absentee ballot but 

does not do the same for unexpectedly jail-confined electors. Ohio Rev. Code Ann. 

§ 3509.08(B); (R. 55-34, Ohio Election Office Manual at PageID # 3016.) Any elector jailed 

during this same window must comply with the normal deadline. Mays falls within the class of 

electors affected by this policy. Police arrested him around seven hours after the deadline 

passed. Had a hospital admitted him at the same time, the State would have allowed him to 

request an absentee ballot. But he was in jail, so he could not. Thus, Mays’s inability to vote is 
No. 19-4112 Mays v. LaRose Page 6

fairly traceable to Ohio’s disparate treatment of confined electors and he has standing to 

challenge that State action.

Nelson’s case is a different story. Police arrested Nelson fourteen hours before the 

deadline to request an absentee ballot. Had a hospital admitted Nelson at the same time, Ohio 

law still would have required him to comply with the Saturday noon deadline. (See R. 55-34, 

Ohio Election Office Manual at PageID # 3016.) But because “we have at least one individual 

plaintiff who has demonstrated standing to assert these rights as his own[,] . . . we need not 

consider whether the other individual . . . [has] standing to maintain the suit.” Village of 

Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264 & n.9 (1977). So we proceed 

to the merits of Plaintiffs’ claims.

III. Plaintiffs’ Equal Protection Claim

“We review a district court’s grant of summary judgment de novo to determine whether 

there is a genuine dispute as to any material fact.” Miles v. S. Cent. Human Res. Agency, Inc., 

946 F.3d 883, 887 (6th Cir. 2020). When there is no dispute as to any material fact and the 

movant is entitled to judgment as a matter of law, summary judgment is appropriate. Fed. R. 

Civ. P. 56(a). In conducting this inquiry, we view all evidence in the light most favorable to, and 

draw all inferences in favor of, the non-moving party. Matsushita Elec. Indus. Co. v. Zenith 

Radio Corp., 475 U.S. 574, 587 (1986). The State’s interests in efficiently allocating its election 

resources and administering elections in an orderly manner outweigh the moderate burden its 

disparate treatment of confined electors places on Mays’s right to vote. So summary judgment is 

appropriate for the Secretary, not Mays.

“[V]oting is of the most fundamental significance under our constitutional structure.” Ill. 

Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979). “Other rights, even the 

most basic, are illusory if the right to vote is undermined.” Wesberry v. Sanders, 376 U.S. 1, 17 

(1964). “It does not follow, however, that the right to vote in any manner . . . [is] absolute.” 

Burdick v. Takushi, 504 U.S. 428, 433 (1992). The Constitution explicitly provides State 

legislatures with authority to regulate the “Times, Places and Manner of holding Elections[.]” 

U.S. Const. art. I, § 4, cl. 1. So while States can regulate elections, they must be careful not to 
No. 19-4112 Mays v. LaRose Page 7

unduly burden the right to vote when doing so. The Equal Protection Clause provides one check 

against any such undue burden. See McDonald v. Bd. of Election Comm’rs of Chi., 394 U.S. 

802, 807 (1969) (“[O]nce the States grant the franchise, they must not do so in a discriminatory 

manner.”).

Normally, we evaluate Equal Protection claims using the well known “tiers of scrutiny”: 

facially discriminatory government action requires increasingly important government 

justification and a much closer means-end relationship as the State’s distinctions move from 

those based on non-protected classes such as economic status, to protected classes such as 

gender, and on to the most rigorously protected classes such as race. Compare San Antonio 

Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 24–25 (1973), with United States v. Virginia, 

518 U.S. 515, 532–33 (1996), and Loving v. Virginia, 388 U.S. 1, 11–12 (1967). But when a 

“plaintiff alleges that a state has burdened voting rights through the disparate treatment of 

voters,” this court’s precedent requires us to apply the Anderson-Burdick framework.4 Obama 

for Am. v. Husted, 697 F.3d 423, 429 (6th Cir. 2012).

4

It’s unclear whether the Supreme Court ever intended Anderson-Burdick to apply to Equal Protection 

claims. That Court has only applied the framework in the context of generally applicable laws. See Crawford v. 

Marion Cty. Election Bd., 553 U.S. 181, 190–203 (2008) (Stevens, J., announcing the judgment of the Court) 

(generally applicable voter identification law); Burdick v. Takushi, 504 U.S. 428, 433–34 (1992) (generally 

applicable prohibition on write-in voting); Norman v. Reed, 502 U.S. 279, 288–89 (1992) (generally applicable 

requirements for ballot access for a new political party); Anderson v. Celebrezze, 460 U.S. 780, 789 (1983) 

(generally applicable filing deadline for independent candidates). And in two of those cases, the Court made clear: 

“we base our conclusions directly on the First and Fourteenth Amendments and do not engage in a separate Equal 

Protection Clause analysis.” Anderson, 460 U.S. at 786 n.7; Norman, 502 U.S. at 288 n.8 (same). Further, the 

Supreme Court has explained Anderson-Burdick as a “two-track approach”; strict scrutiny applies when the burden 

is severe and a deferential balancing analysis applies for “nonsevere, nondiscriminatory restrictions[.]” Crawford, 

553 U.S. at 204–05 (Scalia, J., concurring). It was this court, in Obama for America, that created the three-track

approach we now must apply in Equal Protection cases that implicate the right to vote. See 697 F.3d at 428–33.

Other courts that have considered Equal Protection claims in the voting context don’t apply 

Anderson-Burdick. See Jones v. Governor of Fla., --- F.3d ----, 2020 WL 829347 at *19–67 (11th Cir. Feb. 19, 

2020) (per curiam) (conducting an Equal Protection analysis of Florida’s felon re-enfranchisement policy with no 

discussion of Anderson-Burdick). And neither did this Circuit in a similar case before Obama for America. See 

Johnson v. Bredesen, 624 F.3d 742, 746–50 (6th Cir. 2010) (deciding the same issue as Jones, also with no 

discussion of Anderson-Burdick). That makes sense because it’s difficult to fit a disparate treatment claim into that 

framework. 

Anderson-Burdick first asks us to weigh the magnitude of the burden placed by the State’s action on the 

plaintiff’s right to vote. See Burdick, 504 U.S. at 433–34. But State action making it easier for some electors to 

vote—such as providing them an extended deadline to register for absentee ballots—doesn’t make it harder to vote 

for electors that don’t get the same benefit. Rather, it’s the generally applicable absentee ballot deadline that places 
No. 19-4112 Mays v. LaRose Page 8

Under Anderson-Burdick, we first look to the burden the State’s regulation imposes on 

the right to vote. Burdick, 504 U.S. at 434; Obama for Am., 697 F.3d at 428. When States 

impose “‘reasonable nondiscriminatory restrictions’” on the right to vote, courts apply rational 

basis review and “‘the State’s important regulatory interests are generally sufficient to justify’ 

the restrictions.” Burdick, 504 U.S. at 434 (quoting Anderson v. Celebrezze, 460 U.S. 780, 788 

(1983)); see Obama for Am., 697 F.3d at 429. But when States impose severe restrictions on the 

right to vote, such as poll taxes or limiting access to the ballot, strict scrutiny applies. Burdick, 

504 U.S. at 434 (citing Norman v. Reed, 502 U.S. 279, 289 (1992)); Obama for Am., 697 F.3d at 

429. It is when cases fall between these two extremes that the Anderson-Burdick framework 

departs from the traditional tiers of scrutiny and creates its own test. 

For these intermediate cases, where the burden on the right to vote is moderate, we must 

weigh that burden 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 plaintiff’s rights.’” Burdick, 504 U.S. at 434 (quoting Anderson, 

460 U.S. at 789). Only where the State’s interests outweigh the burden on the plaintiff’s right to 

vote do voting restrictions not offend the Equal Protection Clause. Obama for Am., 697 F.3d at 

433. While this standard is flexible, we must ultimately “make the ‘hard judgment’ that our 

adversary system demands.” Crawford, 553 U.S. at 190 (Stevens, J., announcing the judgment 

of the Court).

Turning to this case, we begin by identifying the burden that Ohio’s disparate treatment 

of confined electors places on Plaintiffs’ right to vote. Precedent from this court and the 

Supreme Court suggests that we must evaluate this burden from the perspective of only affected 

electors and within the landscape of all opportunities that Ohio provides to vote. Viewing the 

facts this way, we conclude that the burden on Plaintiffs’ right to vote is intermediate, 

somewhere “between slight and severe.” (R. 70, Op. & Order at PageID # 4319.)

the burden, if any, on Plaintiffs’ right to vote. So it takes some legal gymnastics to quantify the “burden” that the 

State’s disparate treatment places on Plaintiffs’ right to vote.

The traditional Equal Protection tiers of scrutiny instead focus on how the State chooses to classify its 

citizens when drawing lines and then imposes differing requirements on the State’s justifications for those 

classifications accordingly. They are thus better suited for analyzing disparate treatment claims—even in the voting 

context. Nonetheless, we are bound by Obama for America, so we apply Anderson-Burdick.
No. 19-4112 Mays v. LaRose Page 9

All binding authority to consider the burdensome effects of disparate treatment on the 

right to vote has done so from the perspective of only affected electors—not the perspective of 

the electorate as a whole. In O’Brien v. Skinner, the Supreme Court considered whether New 

York’s law excluding jail-confined electors from eligibility for absentee ballots violated the 

Equal Protection Clause. 414 U.S. 524, 525 (1974). In holding that it did, the Court looked only 

to the effect of New York’s law on jail-confined electors, not on the entire electorate, or even on 

all electors excluded from eligibility for absentee ballots. Id. at 529–30. Similarly, in Obama for 

America, this court evaluated whether Ohio’s restriction of early in-person voting violated the 

Equal Protection Clause. 697 F.3d at 425. In determining that it likely did, we looked only to 

the burden on electors who were likely to vote during the eliminated times. Id. at 431 (noting 

that affected electors were “disproportionately women, older, and of lower income and education 

attainment” and of “lower incomes and less education than election day voters” (internal 

quotation and citation omitted)).

While Justice Scalia’s concurrence in Crawford explained that Supreme Court 

“precedents refute the view that individual impacts are relevant to determining the severity of the 

burden [State action] imposes [on the right to vote].” 553 U.S. at 205 (Scalia, J., concurring). 

He goes on to say that “[s]ubsequent cases have followed Burdick’s generalized review of 

nondiscriminatory election laws.” Id. at 206 (emphasis added). And Crawford involved a voter 

identification law that applied non-discriminately to all voters. Id. at 185. Ohio’s absentee ballot 

request deadline facially discriminates between classes of electors. And in cases of disparate 

treatment, courts have always treated the perspective of the burdened elector as the relevant 

perspective.

Similarly, Rosario v. Rockefeller tells us that we must evaluate the burden on disparately 

treated voters considering all available opportunities to vote. See 410 U.S. 752, 757 (1973). 

There, the Court evaluated New York’s primary registration system, which required voters to 

register for party primaries during the preceding general election. Id. at 753–54. The Plaintiffs 

were electors who could have registered during the previous general election but did not and then 

sued because the State excluded them from participating in the successive primary. Id. at 756. 

In determining that New York’s law placed only a minimal burden on these electors’ right to 
No. 19-4112 Mays v. LaRose Page 10

vote, the Court considered all options provided by the State and held Plaintiffs’ failure to register 

when they had the chance against them:

The petitioners do not say why they did not enroll prior to the cutoff date; 

however, it is clear that they could have done so, but chose not to. Hence, if their 

plight can be characterized as disenfranchisement at all, it was not caused by [the 

statute at issue], but by their own failure to take timely steps to effect their 

enrollment.

Id. at 758.

The Court did not determine that the State severely burdened or disenfranchised Plaintiffs 

by looking only to the time after the State’s deadline had passed. Rather, it considered all voting 

opportunities that the Plaintiffs could have taken advantage of, even if they were no longer a 

possibility at the time of litigation. True, Rosario predates Anderson and Burdick. But these 

early cases still evaluated the burden on affected voters, only without the balancing inquiry that 

Anderson and Burdick established. What’s more, Burdick agrees. See 504 U.S. at 436–37 

(“[A]ny burden on voters’ freedom of choice and association is borne only by those who fail to 

identify their candidate of choice until days before the primary.”).5

Considering Ohio’s absentee ballot request deadlines from the perspective of 

unexpectedly jail-confined electors and given the alternative voting opportunities that Ohio 

provides, the burden those laws place on Plaintiffs’ right to vote is moderate. We reserve 

rational basis review for “reasonable, nondiscriminatory restrictions.” Anderson, 460 U.S. at 

788. Because Ohio’s absentee ballot request deadline facially discriminates between two classes 

of electors—hospital-confined and everyone else—our precedent dictates that the burden that 

law places on the right to vote is more than minimal. See Mich. State A. Philip Randolph Inst. v. 

Johnson, 833 F.3d 656, 663–65 (6th Cir. 2016) (affirming the district court’s finding that 

Michigan’s elimination of straight ticket voting imposed an intermediate burden on the right to 

vote because that state action “would likely have a larger impact on African-American voters.” 

(internal quotation marks and citation omitted)); Obama for Am., 697 F.3d at 431–32 (rejecting 

5And the Court considered the burden Hawaii’s prohibition on write-in voting placed on the Plaintiff’s 

right to vote within the context of all ballot access opportunities the State provided for independent candidates. See 

504 U.S. at 435–37.
No. 19-4112 Mays v. LaRose Page 11

rational basis review in a case involving early voting periods that discriminated between military 

and non-military electors).

Strict scrutiny is the standard for cases where “the State totally denied the electoral 

franchise to a particular class of residents, and there was no way in which the members of that 

class could have made themselves eligible to vote.” Rosario, 410 U.S. at 758; see also Norman, 

502 U.S. at 289. Ohio provides all electors the opportunity to vote early. Plaintiffs had around 

four weeks before their arrest to vote early in-person. Ohio Rev. Code Ann. § 3509.051; 

(R. 55-34, Ohio Election Official Manual at PageID # 3010–12.) And they had over ten months 

before their arrest to request an absentee ballot. Ohio Rev. Code Ann. §§ 3509.02, 3509.03. Just 

as in Rosario, Plaintiffs’ choice to not participate in the opportunities Ohio provides to vote other 

than on Election Day was, at least in part, the cause of their inability to vote. See 410 U.S. 757. 

True, Plaintiffs planned to vote in-person on Election Day and did not foresee their arrest. 

But any Ohio elector can be called away unexpectedly. See Obama for Am., 697 F.3d at 435 

(“any voter could be suddenly called away and prevented from voting on Election Day”). 

As Justice Blackmun said in O’Brien:

The plight of detainees elicits concern, of course, for a detainee may not be guilty 

of the offense with which he is charged. Yet the statutes’ effect upon him, 

although unfortunate, produces a situation no more critical than the situation of 

the voter, just as unfortunate, who on election day is away attending a funeral of a 

loved one in a distant State. These are inequalities, but they are the incidental 

inequalities of life, and I do not regard them as unconstitutional.

414 U.S. at 537 (Blackmun, J., dissenting). There are easily several reasons why an elector may 

be unable to vote in person on Election Day—and the Secretary’s briefs list many—but Plaintiffs 

could have avoided all that uncertainty by taking advantage of the opportunities Ohio provides to 

vote early. In this regard, the Plaintiffs are no more burdened than any other elector.

Because Plaintiffs are not totally denied a chance to vote by Ohio’s absentee ballot 

deadlines, strict scrutiny is inappropriate. See Rosario, 410 U.S. at 757; see also Norman, 

502 U.S. at 289. Finding the burden these laws place on Plaintiffs between minimal and severe, 

it is best classified as a moderate burden. So the laws survive if the State’s justifications for 

them outweigh this moderate burden. See Obama for Am., 697 F.3d at 433.
No. 19-4112 Mays v. LaRose Page 12

The Secretary puts forth several justifications for Ohio’s disparate treatment of confined 

electors. He broadly asserts the State’s interest in the orderly administration of elections and 

then lists several interests that fall within this category: “preserving the integrity of the election 

process, maintaining a stable political system, preventing voter fraud, protecting public 

confidence, and reducing administrative costs.” (Appellant’s Br. at 28–29 (citations omitted)). 

Justice Stevens’s plurality opinion in Crawford recognized the relevance and legitimacy of a 

State’s interest in the “orderly administration” of elections. 553 U.S. at 196 (Stevens, J., 

announcing the judgment of the Court). And courts have recognized all the subsidiary interests 

as relevant and legitimate as well. See id. at 197; Timmons v. Twin Cities Area New Party, 

520 U.S. 351, 364 (1997); Ohio Democratic Party v. Husted, 834 F.3d 620, 634 n.8 (6th Cir.

2016). The Secretary’s argument is that the State and its regional election boards possess limited 

resources devoted to elections. These election boards have many tasks that they must complete 

in the days before an election and on Election Day. If Ohio required its election boards to 

process absentee ballots from jail-confined electors in the days just before an election and on 

Election Day, it would frustrate the boards’ ability to accomplish these tasks, tasks necessary to 

preserving the integrity of the election process, maintaining a stable political system, preventing 

voter fraud, and protecting public confidence—and to a much greater degree than allowing for 

late applications from hospital-confined electors.

As this court said in Obama for America, “the list of responsibilities of the board of 

elections is long, and the staff and volunteers who prepare for and administer elections 

undoubtedly have much to accomplish during the final few days before the election.” 697 F.3d 

at 432–33. The record here supports a similar finding. During the weekend before an election, 

each county’s board of elections must: authenticate, prepare, and mail absentee ballots; examine, 

verify, and count completed absentee ballots as electors return them; notify voters who voted 

incorrectly that they need to correct their ballot; staff early-voting locations; locate, hire, and 

train poll workers for Election Day; field and respond to questions from poll workers and voters; 

compile a list of eligible electors who have not voted early; deliver absentee ballots to hospitalconfined electors and homebound and jail-confined electors who requested absentee ballots 

before the deadline; and deliver physical voting equipment, ballots, and supplies to polling 

locations. And on Election Day, the boards must oversee each polling place, answer questions 
No. 19-4112 Mays v. LaRose Page 13

from voters and poll workers, again deliver absentee ballots to hospital-confined electors, and 

resolve any unforeseen responsibilities that arise.

The Secretary argues that requiring election boards to process late absentee requests from 

jail-confined electors during the weekend before and on Election Day will prevent the boards 

from accomplishing the above-listed tasks, which are necessary to achieve all the relevant and 

legitimate state interests he proffers. As he puts it: “[b]ecause humans are bound by the laws of 

physics, they cannot be in two places at once, and so many resources dedicated to 

accommodating jailed voters cannot be spent completing other tasks.” (Appellant’s Reply Br. at 

21.) But the Secretary need not rely on physics or even common sense.

The record shows that the election board in Ohio’s third-largest county would need more 

staff to process late absentee requests from jail-confined electors. And some counties’ election 

boards only operate with two staff members. Boards in small counties such as these could 

accomplish none of their other tasks while processing and delivering late-requested absentee 

ballots to jail-confined electors. Further, jail-confined electors are not similarly situated with 

hospital-confined electors because of the location of their confinement. Board staff that deliver 

absentee ballots to jails must engage in advanced planning to ensure that they will be able to 

locate the elector in the jail, pass through the jail’s security, and verify that the elector will be 

present at the jail when they arrive. This advance planning—which would take up time during 

the already busy pre-election period—is unnecessary to deliver absentee ballots to hospitalconfined electors.

And finally, we note that the federal Courts of Appeals have recognized, as a general 

matter, that “[p]risoners are not similarly situated to non-prisoners.” Roller v. Gunn, 107 F.3d 

227, 234 (4th Cir. 1997) (upholding a court filing fee unique to prisoners); accord Smith v. 

Corcoran, 61 F. App’x 919 (5th Cir. 2003) (per curiam) (rejecting a prisoner’s Bivens claim 

regarding the refusal of postal officials to investigate alleged tampering with his mail); Boivin v. 

Black, 225 F.3d 36, 44 (1st Cir. 2000) (affirming the constitutionality of a statutory cap on 

attorneys’ fee awards for prison litigation claims); Allen v. Cuomo, 100 F.3d 253, 260–61 (2d 

Cir. 1996) (finding no constitutional problem with the lack of a hardship waiver for disciplinary 

surcharges for inmates found guilty of violating prison rules); Scher v. Chief Postal Inspector, 
No. 19-4112 Mays v. LaRose Page 14

973 F.2d 682, 683–84 (8th Cir. 1992) (affirming dismissal of a Bivens claim based on refusal of 

postal employees to investigate a complaint regarding treatment of prisoners’ mail). Although 

none of these cases involves the exact scenario at issue here, they confirm that there are 

countless reasons that jail-confined citizens are not similarly situated to those outside jail. So at 

a minimum, Plaintiffs face an uphill battle to establish that jail-confined electors and hospitalconfined electors are similarly situated. See Bell v. Wolfish, 441 U.S. 520, 545 (1979) 

(“[S]imply because prison inmates retain certain constitutional rights does not mean that these 

rights are not subject to restrictions and limitations.”).

True, there is evidence that Ohio’s most populous county would not need any more staff 

to accommodate late requests from jail-confined electors the same as hospital-confined electors 

and that doing so would impose no greater burden on the board. But as we said in Obama for 

America, one county, or even several counties, “cannot speak for all of Ohio’s counties.” 

697 F.3d at 433. So just because Franklin County has enough staff to accommodate late requests 

from jail-confined electors without imposing a greater burden does not mean that Ohio’s other 

counties will be able to as well. Even more important, this conclusory evidence ignores 

testimony from the same witness about the planning between Franklin County’s Board of 

Elections and the jails in that county. The witness testified that there is an exchange of 

information before the Board’s visit to the jails to deliver absentee ballots that allows the jail to 

pre-clear board staff members for security purposes and prepare the jail-confined electors for the 

voting process. So the witness’s testimony that extending late absentee voting to jail-confined 

electors would not burden Franklin County’s Board of Elections depends on her experiences 

with smooth jailhouse voting—a process that benefits from advanced planning. Late requests 

from jail-confined electors, especially those received on Election Day morning, do not allow for 

this advanced planning and will likely result in an increased burden.

Plaintiffs challenge the Secretary’s justifications on several grounds. They claim that the 

justifications are simply a “post hoc litigation rationalization[,]” that testimony from the 

Secretary’s Rule 30(b)(6) designee forecloses his ability to now provide these justifications, and 

that Obama for America rejected similar justifications. (Appellee’s Br. at 30.) None of these 

contentions is persuasive.
No. 19-4112 Mays v. LaRose Page 15

Plaintiffs cite only United States v. Virginia, 518 U.S. at 533, to argue that post hoc 

rationalizations cannot satisfy intermediate scrutiny. But that case was a challenge to gender 

discrimination. Id. at 519–20. And as discussed, voting cases in this Circuit differ from other 

Equal Protection claims regarding intermediate scrutiny; the Anderson-Burdick framework 

applies. See Obama for Am., 697 F.3d at 429. No opinion from this court or the Supreme Court 

has ever limited the record that the State can build in order to justify a burden placed on the right 

to vote. And the language used by this court in Obama for America suggests that the State may 

come up with its justifications at any time. See 697 F.3d at 429 (describing a State’s 

justifications in the Anderson-Burdick framework as those “put forward by the State,” “asserted” 

by the State, and “proffered by the State”). 

This makes sense. The facially discriminatory State policy at issue in United States v. 

Virginia limited enrollment at a State university to males. And it is impossible to think about a 

male-only university without also considering the exclusion of females. But when Ohio decided 

to make an exception for unexpectedly hospital-confined electors in 1971, the only immediately 

apparent class treated differently was all other electors in Ohio. See 1971 Ohio Laws 873, 

§ 3509.08 (Am. S.B. 460). And under the Supreme Court’s then-prevailing McDonald decision, 

a state was free to deny completely absentee ballots to confined persons. 394 U.S. at 807; 

see Obama for Am., 697 F.3d at 439 (White, J., concurring in part). Under these circumstances, 

we see no need to limit consideration of the State’s evidence and rationales regarding the 

differences between the relevant populations here. 

The Secretary’s Rule 30(b)(6) designee did not bind him from raising the justifications he 

now proffers for three reasons. First, the designee testified that she did not know the 

legislature’s rationale for treating classes of confined electors differently—which is not 

surprising (see supra). She did, however, competently testify that the Secretary’s office would 

be concerned with the staffing implications of allowing late absentee registration for jailconfined electors and the differences between hospitals and jails. The latter is more relevant for 

purposes of this as-applied challenge. Second, counsel for the Secretary contemporaneously 

objected to the relevant questioning of the designee. The questions called for the designee to 

speculate on the intent of the legislature when it enacted the exception for hospital-confined 
No. 19-4112 Mays v. LaRose Page 16

electors, a topic on which the designee had no personal knowledge. See Fed. R. Evid. 602 

(“A witness may testify to a matter only if evidence is introduced sufficient to support a finding 

that the witness has personal knowledge of the matter.”) Third, most courts don’t treat 

concessions by Rule 30(b)(6) designees as binding. See Vehicle Mkt. Research, Inc. v. Mitchell 

Int’l, Inc., 839 F.3d 1251, 1260 (10th Cir. 2016) (noting “the majority of courts to reach the issue 

. . . treat the testimony of a Rule 30(b)(6) representative as merely an evidentiary admission, and 

do not give the testimony conclusive effect”) (citation omitted). So the designee in no way 

bound the Secretary from proffering the justifications he now provides.

Last, Obama for America is distinguishable. That case involved Ohio’s attempt to roll 

back in part, in-person early voting. 697 F.3d at 427. Ohio had allowed electors to vote early, 

in-person, through the Monday before Election Day. Id. The State changed course and tried to 

eliminate opportunities to vote early in-person after the Friday before Election Day, except for 

military electors. Id. Military electors could still vote through the Monday before Election Day. 

Id. Plaintiffs, who were not military electors, challenged the State’s actions.

In ruling on the likelihood of the Plaintiffs’ success on the merits, we determined that the 

Anderson-Burdick framework applied and that the burden on the Plaintiffs’ right to vote was 

moderate. Id. at 428–29. We then rejected the two justifications proffered by the State: (1) that 

county boards of elections were too busy preparing for Election Day to accommodate early 

voters in the weekend leading up to an election and (2) that military service members and their 

families face unique difficulties in getting to the polls on Election Day. Id. at 432–33. In so 

ruling, we held that the State failed to show why officials would now be unable to accomplish 

the undoubtably significant tasks during the days just before an election while accommodating 

early voting, given that that there was no evidence that county boards of elections faced such 

difficulties in prior years when the State allowed early voting during this same period. Id. at 433 

(“[T]he State has shown no evidence indicating how this election will be more onerous than the 

numerous other elections that have been successfully administered in Ohio since early voting 

was put into place in 2005.”). The Plaintiffs also introduced evidence from some counties 

showing that more early voting opportunities would actually reduce their burden by spreading 

out demand. Id. Last, the State failed to put forth evidence establishing that military electors 
No. 19-4112 Mays v. LaRose Page 17

were substantially different than non-military electors to justify the disparate treatment. Id. at 

434–35.

Here, none of our Obama for America rationales apply. Ohio has never provided jailconfined electors a chance to register for absentee ballots last minute. And Plaintiffs have not 

countered the Secretary’s evidence that many counties in Ohio will have trouble 

accommodating the relief Plaintiffs seek, given existing resources. That Ohio can accommodate 

hospital-confined electors’ late requests does not establish that election boards can do the same 

for jail-confined electors. This is because of the increased burden that processing last minute 

jail-confined electors’ absentee requests would impose on the boards, as discussed above. 

Plaintiffs also have not shown that providing jail-confined electors the ability to request an 

absentee ballot at the last minute would ease the State’s burden on Election Day. At best, 

Plaintiffs have shown that Ohio’s most populous county, whose Board of Elections has 

substantial resources, would not be worse off. Finally, the Secretary has established real 

differences between hospitals and jails, which show that electors confined there are not similarly 

situated. In all, the Secretary’s relevant and legitimate interest in the orderly administration of 

elections is much stronger here than in Obama for America.

The Secretary has the burden of establishing that Ohio’s disparate treatment of confined 

electors furthers the State’s interest in orderly election administration. See Obama for Am., 

697 F.3d at 433–34. And the Secretary has carried his burden here. He has 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.

As the Supreme Court said in McDonald v. Board of Election Commissioners of Chicago:

Ironically, it is [Ohio’s] willingness to go further than many States in extending 

the absentee voting privileges . . . that has provided [Plaintiffs] with a basis for 

arguing that the provisions operate in an invidiously discriminatory fashion . . . . 

Indeed, [Plaintiffs’] challenge seems to disclose not an arbitrary scheme or plan 

but, rather, the very opposite—a consistent and laudable state policy of adding . . . 
No. 19-4112 Mays v. LaRose Page 18

groups to the absentee coverage as their existence comes to the attention of the 

legislature. That [Ohio] has not gone still further, as perhaps it might, should not 

render void its remedial legislation, which need not, as we have stated before, 

“strike at all evils at the same time.”

394 U.S. at 810–11 (quoting Semler v. Dental Exam’rs, 294 U.S. 608, 610 (1935)) (footnote 

omitted). Finding no dispute of material fact and that the Secretary is entitled to judgment as a 

matter of law, summary judgment is appropriate in favor of the Secretary. So we reverse the 

district court’s grant of summary judgment to Plaintiffs on their Equal Protection claim and 

reverse the district court’s denial of summary judgment to the Secretary on that claim.

IV. Plaintiffs’ First Amendment Claim

Next, we address Plaintiffs’ First Amendment challenge to Ohio’s deadline. The trial 

court expressed some skepticism regarding this challenge but ultimately did not decide the issue 

given its resolution of the Equal Protection challenge. Although we could remand for 

consideration of this claim, the issue was fully briefed and raised in the trial court and involves a 

question of law. In these circumstances, we can exercise our discretion to resolve the issue. See 

Foster v. Barilow, 6 F.3d 405, 407 (6th Cir. 1993).

Ohio’s generally applicable deadline for requesting absentee ballots is constitutional 

because it imposes only a minimal burden on Plaintiffs’ right to vote and the same state interests 

from Plaintiffs’ Equal Protection claim justify that burden. “[W]hen a state election law 

provision imposes only ‘reasonable, nondiscriminatory restrictions’ upon the First and 

Fourteenth Amendment rights of voters, ‘the State’s important regulatory interests are generally 

sufficient to justify’ the restrictions.” Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 

788). First, there is no constitutional right to an absentee ballot. McDonald, 394 U.S. at 807–09. 

And standing alone, Ohio’s deadline of noon, three days before Election Day is 

nondiscriminatory.6 Any elector may request an absentee ballot, so long as they deliver that 

request to the Board of Elections by noon, three days before Election Day. Ohio Rev. Code Ann. 

§§ 3509.02, 3509.03. Even though this law may eliminate opportunities to vote for electors who 

6 As discussed, Ohio law discriminates between hospital-confined electors and everyone else. But 

Plaintiffs’ First Amendment claim challenges only the Saturday noon deadline, as-applied to them; it is their Equal 

Protection claim that challenges the disparate treatment.
No. 19-4112 Mays v. LaRose Page 19

fail to register before the deadline, a state’s generally applicable registration cutoff imposes only 

a minimal burden on the right to vote. Rosario, 410 U.S. at 758. Ohio law provides electors 

over ten months to request an absentee ballot. Ohio Rev. Code Ann. §§ 3509.02, 3509.03. 

So electors who fail to vote early cannot blame Ohio law for their inability to vote; they must 

blame “their own failure to take timely steps to effect their enrollment.” Rosario, 410 U.S. at 

758; see also Burdick, 504 U.S. at 436–37 (“[A]ny burden on voters’ freedom of choice and 

association is borne only by those who fail to identify their candidate of choice until days before 

the primary.”).

Because Ohio’s interest in orderly election administration is weighty enough to justify the 

moderate burden its disparate treatment of confined electors places on Plaintiffs’ right to vote, 

those interests must be enough to justify the much lower burden that the State’s generally 

applicable absentee ballot request places on their right to vote under rational basis review. 

Especially given that “the State’s important regulatory interests are generally sufficient to 

justify” the restrictions. Anderson, 460 U.S. at 788. Although it didn’t reach the claim, the

district court suggested that it would have held the same. (R. 70 Op. & Order at PageID # 4322 

(“[A] generally applicable deadline that applied to all would-be absentee voters would likely 

survive the Anderson-Burdick analysis, even if it resulted in disenfranchisement for certain 

incarcerated individuals.”).) And this court and the Supreme Court have made similar 

statements. See Dunn v. Blumstein, 405 U.S. 330, 347–48 (1972) (implying that a generally 

applicable voter registration deadline of thirty days before Election Day is constitutional); 

Obama for Am., 697 F.3d at 433–34 (“If the State had enacted a generally applicable, 

nondiscriminatory voting regulation that limited in-person early voting for all Ohio voters, its 

‘important regulatory interests’ would likely be sufficient to justify the restriction.”).

True, we may decline to reach issues that the district court does not. See, e.g., Prime 

Media, Inc. v. City of Brentwood, 398 F.3d 814, 825 (6th Cir. 2005). But exercise of that 

discretion is permissive, not mandatory. And Plaintiffs give us no good reason for exercising 

that discretion here. The Secretary, on the other hand, gives a good reason for resolving all of 

Plaintiffs’ claims: elimination of any doubt about the constitutionality of Ohio’s election laws 

before the upcoming election. In a case such as this, where the correct result is clear and the 
No. 19-4112 Mays v. LaRose Page 20

district court alluded to how it would have resolved the issue, resolution of Plaintiffs’ First 

Amendment claim is appropriate. Because Ohio’s important regulatory interest in the orderly 

administration of elections outweighs the minimal burden that the State’s absentee ballot request 

deadline places on Plaintiffs’ right to vote, the Secretary is entitled to judgment as a matter of 

law. So we reverse the district court’s denial of summary judgment to the Secretary on 

Plaintiffs’ First Amendment claim.

V. Class Certification

Even though we are reversing the trial court’s decision on the merits here, we review the 

trial court’s class certification decision because it affects the scope of the judgment and the 

Secretary conceded at argument that we should reach the issue, even if he prevails on the merits 

of Plaintiffs claims. We review class certification questions for abuse of discretion. In re 

Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 850 (6th Cir. 2013). 

“An abuse of discretion occurs if the district court relies on clearly erroneous findings of fact, 

applies the wrong legal standard, misapplies the correct legal standard when reaching a 

conclusion, or makes a clear error of judgment.” Id. (quoting Young v. Nationwide Mut. Ins. Co., 

693 F.3d 532, 536 (6th Cir. 2012)). Federal Rule of Civil Procedure 23 imposes four 

requirements for class certification: numerosity, commonality, typicality, and adequacy (and 

some courts have read an implicit fifth requirement into Rule 23; ascertainability). The 

Secretary challenges commonality and typicality, as well as the ascertainability of the class. 

Because commonality and typicality resolve the class certification question, we need not reach 

the ascertainability issue.

Commonality requires that “there are questions of law or fact common to the class.” 

Fed R. Civ. P. 23(a)(2). So all class members’ “claims must depend upon a common contention 

. . . that is capable of classwide resolution—which means that determination of its truth or falsity 

will resolve an issue that is central to the validity of each one of the claims in one stroke.” 

Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Similarly, typicality requires that “the 

claims or defenses of the representative parties are typical of the claims or defenses of the class.” 

Fed. R. Civ. P. 23(a)(3). “[A]s goes the claim of the named plaintiff, so go the claims of the 

class.” Sprague v. Gen. Motors Corp., 133 F.3d 388, 399 (6th Cir. 1998) (en banc). These 
No. 19-4112 Mays v. LaRose Page 21

requirements “tend to merge” because “[b]oth serve as guideposts for determining whether . . . 

the interests of the class members will be fairly and adequately protected in their absence.” 

Dukes, 564 U.S. at 349 n.5 (citation omitted).

The district court certified a class that included:

All individuals arrested and held in detention in Ohio on or after close of business 

for the county election board on the Friday prior to the Election who (1) are 

eligible to vote in Ohio and are registered to do so, (2) did not vote absentee in 

person or by mail prior to their detention, (3) were provided neither an absentee 

ballot nor transportation to a voting center nor access to any other method of 

voting while held in detention, and (4) will remain in detention through close of 

polls on Election Day.

(R. 70, Op. & Order at PageID # 4297, 4308.) This class does not satisfy Rule 23’s commonality 

and typicality requirements. The class includes any person police arrest between close of 

business on Friday and the close of the polls on Election Day. But class members arrested before 

Saturday’s noon cutoff for requesting an absentee ballot have substantially different claims than 

class members arrested after the deadline.

Take the named plaintiffs for example. Police arrested Mays shortly after 7 p.m. on the 

Saturday before Election Day. Had a hospital admitted Mays at the same time, Ohio law would 

have allowed him to submit a late absentee ballot request. See Ohio Rev. Code Ann. § 3509(B). 

Because of this disparate treatment, Mays has at least a plausible Equal Protection claim—the 

claim we analyze above. Nelson is a different story. Police arrested Nelson around 10 p.m. on 

the Friday before Election Day. Had a hospital admitted him at the same time, he would not be 

eligible for the unexpectedly hospital-confined exception. That’s because the exception applies 

only to electors who themselves, or their minor children, are hospitalized as a result of an 

“accident or medical emergency” that occurs after the generally applicable deadline for 

requesting an absentee ballot. (R. 55-34, Ohio Election Official Manual at PageID # 3016.) So 

Ohio law treated Nelson no differently than if a hospital admitted him on the same night police 

arrested him. Thus, his Equal Protection claim is much weaker than Mays’s and would likely be 

subject to a different tier of scrutiny. See Burdick, 504 U.S. at 434. 
No. 19-4112 Mays v. LaRose Page 22

The district court said “the primary common issue the Court relies on for certification is 

whether the Proposed Class is entitled to be treated equally with similarly-situated hospitalconfined voters for purposes of submitting an absentee ballot application.” (R. 70, Op. & Order 

at PageID # 4304.) Because Ohio law treats some class members the same as hospital-confined 

electors, while also treating some class members differently than their hospital-confined 

counterparts, resolution of the district court’s “primary common issue” cannot lead to classwide 

resolution in one stroke—the claims of the named plaintiffs do not necessarily resolve the claims 

of the entire class. Contra Dukes, 564 U.S. at 350; Sprague, 133 F.3d at 399. So the district 

court misapplied the correct legal standard and abused its discretion in certifying a class. Thus, 

we reverse the district court’s certification of a class. Normally, we would remand for further 

proceedings on the class certification issue. But because we resolve all of Plaintiffs’ claims, any 

further proceedings relating to class certification are unnecessary.

VI. Conclusion

For these reasons, we REVERSE the district court’s certification of a class, REVERSE

the district court’s grant of summary judgment to Plaintiffs, and REVERSE the district court’s 

denial of summary judgment to the Secretary. The mandate shall issue herewith.