PETER C. ECONOMUS, District Judge.
"A citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction." Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). In Ohio, that right to participate equally has been abridged by Ohio Revised Code § 3509.03 and the Ohio Secretary of State's further interpretation of that statute with regard to in-person early voting. In 2005, Ohio expanded participation in absentee balloting and in-person early voting to include all registered Ohio voters. Now, "in-person early voting" has been redefined by the Ohio legislature to limit Plaintiffs' access to the polls. This Court must determine whether preliminary injunctive relief should be granted to Plaintiffs on their claim that Ohio's restriction of in-person early voting deprives them of their fundamental right to vote. Following Supreme Court precedent, this Court concludes that Plaintiffs have stated a constitutional claim that is likely to succeed on the merits. As a result — and as explained below — this Court grants Plaintiffs' motion for preliminary injunction.
Plaintiffs Obama for America, Democratic National Committee, and Ohio Democratic Party ("Plaintiffs") filed a complaint against Jon Husted, in his official capacity as Ohio Secretary of State, and Mike DeWine, in his official capacity as Ohio Attorney General ("the State" or "Defendants"). (Doc. # 1.) In their complaint, Plaintiffs allege that implementation of a 6 p.m. Friday deadline for in-person early voting codified in Ohio Revised Code ("ORC") § 3509.03 unconstitutionally infringes on the fundamental right to vote.
The Ohio Revised Code, as interpreted by Defendant Secretary of State Husted, provides for two different deadlines for in-person early voting: one for "UOCAVA" voters — voters who fall within the stated definition under the Uniformed and Overseas Citizens Absentee Voter Act
Pursuant to a briefing schedule ordered by this Court, the State and Defendant/Intervenors
On August 15, 2012, this Court held a hearing on Plaintiffs' motion for preliminary injunction. The parties filed numerous exhibits: Plaintiffs' Exhibits (docs. #34, 34-1-34-42); Defendants' Exhibits, which include exhibits of both the State and Defendant/Intervenors (docs. # 35, 35-1-35-12). In addition, after the hearing, the State Defendants filed a Notice of Secretary of State Directive 2012-35. (Docs. # 40 and 40-1.) In response to that notice, Plaintiffs filed a Supplemental Memorandum, with exhibits (docs. # 42, 42-1-42-5), to which the State Defendants filed a response (doc. # 44). Thereafter, Plaintiffs filed a Notice of Further Developments, with exhibits. (Doc. # 46, 46-1-46-2.)
Arguably as a response to the problems attendant to the 2004 general election,
On June 29, 2011, the Ohio General Assembly passed Amended Substitute House Bill Number 194 ("HB 194"). Governor John Kasich signed the bill on July 1, 2011. By passing HB 194, the Ohio General Assembly sought to eliminate the last three days of early in-person voting for
Defendant Secretary of State addressed the issue of inconsistent in-person early voting deadlines in the Secretary of State Advisory 2011-07, dated October 14, 2011. (McTigue Aff., Exh. 8.) That advisory directed all Ohio elections boards to limit in-person early voting for non-UOCAVA voters to 6 p.m. the Friday before Election Day but to extend the deadline to UOCAVA voters through the Monday before Election Day.
On May 8, 2012, the 129th Ohio General Assembly passed Substitute Senate Bill Number 295 ("SB 295"). SB 295 was signed on May 15, 2012 and became effective on August 15, 2012. Although SB 295 repealed HB 194, it did not repeal the changes made by HB 224. It therefore enacted into law the post-referendum status of the in-person early voting deadlines. Specifically, non-UOCAVA voters may vote early in-person until 6 p.m. on Friday pursuant to § 3509.03, while § 3509.01 contains no deadline. Notwithstanding any attempts at consistency, UOCAVA voters are again left with two deadlines: Friday at 6 p.m., pursuant to § 3511.02,
On June 22, 2012, the Secretary of State issued Directive 2012-24. (Defs. Exh. 2.) In this one, he stated as follows:
On Wednesday, August 15, 2012, Defendant Secretary of State issued another directive that sets uniform "regular business hours" for all Ohio elections boards, beginning October 2, 2012 through November 2, 2012. (Directive 2012-35, filed by Defendants, doc. #40-1.) The directive eliminates weekend hours. Henceforth, all Ohio elections boards will be open between Monday and Friday, from 8:00 am through 5:00 pm until the last two weeks prior to Election Day, when the hours extend to 7 p.m.
(Doc. #40-1, page 2, emphasis added.)
For non-UOCAVA voters, weekend in-person early voting no longer exists. To participate in in-person early voting, an Ohio voter must cast his or her vote during the traditional work week, during typical working hours-except for the last two weeks prior to Election Day, when elections boards are open until 7 p.m. weekdays, until Friday, November 2, 2012 at 6 p.m.
The lack of weekend voting hours affects UOCAVA voters, as well, as the Secretary forbids any county elections board to be open on the weekends between October 2 and November 2. According to Defendants, this Directive does not instruct elections boards to be open the weekend prior to Election Day, instead leaving UOCAVA voters' access to in-person early voting to the discretion of each county elections board. (Defs. Response, page 1.)
The gravamen of Plaintiffs' complaint is that all Ohio voters should be able to vote during the three days prior to Election Day — as they have since 2005 — and that the State's restriction of in-person early voting is an unconstitutional violation of the Equal Protection Clause of the United States Constitution. (See Complaint and Motion for Preliminary Injunction.) Plaintiffs seek a court order preventing the State from enforcing a Friday 6 p.m. deadline and restoring early in-person voting rights to all registered Ohio voters. (Complaint, & 1.)
Plaintiffs assert that "tens of thousands of Ohio voters" will seek to exercise their right "to cast their votes in the three days prior to Election Day — a critical right that was granted to all qualified Ohio voters in 2005, used by an estimated 93,000 Ohio voters in the 2008 presidential election,
In another study, a voter advocacy group reviewed data from the 2008 General Election and, extrapolating information collected in seven Ohio counties, concluded that over 100,000 voters would vote in person during the last three days before Election Day. (Update, Northeast Ohio Voter Advocates, doc. #34-32, page 2; see also "Effects of HB194 and SB148 on Absentee Voting. Part 1. Expected Crowding of In-Person Absentee Voting in 2012," Northeast Ohio Voter Advocates, doc. #34-33, page 2, concluding that "a short absentee voting period with uniform hours for all counties would cause non-uniform crowding and most likely, a non-uniform loss of vote in different counties.")
The Northeast Ohio Voter Advocates also produced a study based on data from the Cuyahoga County, Ohio Board of Elections and the 2010 census. ("Racial and ethnic proportions of early in-person voters in Cuyahoga County, General Election 2008, and implications for 2012," doc. #34-35.) That study indicates that the new restrictions on in-person early voting disproportionately impacts African American voters in Cuyahoga County.
Finally, the Franklin County Board of Elections prepared a report "to identify when EIP [Early In-Person] voting was most utilized, to identify spatial patterns/trends of EIP voters, and to study the racial and ethnic make-up of EIP voters," based on a file of all 2008 in-person early voters in Franklin County and 2010 Census data. ("2008 Early In-Person Voting," doc. #34-34.) The report concluded that in-person early voting accounted for 9% of all ballots cast in 2008, representing 51,785 voters. (Id. at page 3.) Other statistical data indicated that a disproportionately higher number of African Americans voted early and that 82% of all early in-person votes were cast "during either afterhours on weekdays, on weekends, or the Monday before the election[.]" (Id.) In addition, the study showed that 67% of weekday early in-person voting took place after 5 p.m. (Id.)
Defendants do not submit any countervailing statistical information, other than an article from "PSOnline" written by three authors from Reed College in Oregon. (Defs.' Exh. 11.) That article provides a general, national overview of early-voting election reforms, but that overview
Prior to the legislative flurry and the Secretary of State's interpretation of same, Ohio voters had the right to vote during the 35 days leading up to Election Day, weekends inclusive. Now, except for voters serving in the military or located overseas, voters may cast their votes only during limited weekday working hours and, then, only until 6 p.m. on Friday. Plaintiffs argue that the burden is substantial, disproportionately affects minority and working class voters, and is the result of arbitrary treatment by the State.
Defendants' counter-argument is that the burdens on Ohio boards of election call for restricted hours for in-person early voting, including the weekend prior to Election Day, with the exception of UOCAVA voters whose special treatment is both necessary and commendable. In support, Defendants offer the declaration of the Deputy Assistant Secretary of State, Matthew Damschroder (Defs.' Exh. 8, doc. #35-9) and the declarations of two career military officers, Colonel Duncan D. Aukland and Captain Robert H. Carey, Jr. (Defs.' Exhs. 7 and 9, respectively). Defendants list the various duties imposed on elections boards and poll workers, from displaying a precinct map and collecting supplies to preparing the official list of registered voters which contain "notations of those voters who have already requested an absentee ballot by mail or in person in order to prevent an absentee voter from also casting a regular ballot on Election Day" pursuant to ORC § 3509.06(D). (Mem. Contra, pages 17-18.) Defendants assert that permitting all Ohio voters to vote in person the three days prior to Election Day will interfere with elections boards' collective ability to prepare. (Id. at 18.)
The military officers describe the particular difficulties faced by military voters who may need access to voting the last three days prior to Election Day due to unexpected deployment. Defendants point out that without those last three days, a suddenly deployed serviceperson may not be able to vote at all:
(Defs.' Mem. Contra, pages 13-14, emphasis added.) However, although the State Defendants argue strenuously in favor of UOCAVA voting during those last three days, they do not reconcile that fervor with the reality that Defendant Secretary of State failed to preserve the right of UOCAVA voters to vote that weekend — or any weekend — as the result of his Directive 2012-35. That directive eliminates all weekend voting and, ultimately, leaves it to the discretion of county elections boards to make available in-person early voting to UOCAVA voters on the Saturday, Sunday, and Monday prior to Election Day. (See Defs.' Response, doc. #44, page 2.)
Rule 65 of the Federal Rules of Civil Procedure authorizes the Court to
The right to vote is a fundamental right, "preservative of all rights." Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). The United States Supreme Court has reiterated time and again the particular importance of treating voters equally, from Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1964) — "The idea that every voter is equal to every other voter in his State, when he casts his ballot in favor of one of several competing candidates, underlies many of our decisions" — to Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) — "A citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction" — to Bush v. Gore:
531 U.S. 98, 104-05, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000) (internal citations and quotations omitted) (emphasis added). Consistent with the admonition against devaluing or "debas[ing] the weight of a citizen's vote," the Sixth Circuit has applied the Bush v. Gore analysis and Supreme Court precedent to elections cases in recent years. League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 477 (6th Cir.2008) (noting that "[a]lthough Bush was necessarily limited to [its] present circumstances, district courts have found its analysis applicable in challenges to voting systems.") (internal citation and quotation marks omitted). Similarly, in Hunter v. Hamilton County Bd. of Elections, the Sixth Circuit was guided in their analysis "by the important requirement that state actions in election processes must not result in arbitrary and disparate treatment of votes." 635 F.3d 219, 234 (6th Cir.2011) (quoting Bush v. Gore, 531 U.S. at 105, 121 S.Ct. 525) (internal citation and quotation marks omitted). Of course, Hunter involved the actual counting of votes — as did Bush v. Gore — but League of Women concerned a plethora of problems Ohio voters faced when attempting to cast their votes. All of these cases — and their precedents — rely on the principle that voters cannot be restricted or treated in different ways
Courts employ the Anderson "balancing approach" when they are confronted with a constitutional challenge to a state's restriction on voting. Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983); Burdick v. Takushi, 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992).
Therefore, to determine at this stage whether Plaintiffs are likely to succeed on the merits of their constitutional claim, this Court must balance the injury to Plaintiffs' voting rights against the precise interests put forward by the State Defendants, mindful of the Court's caution that even where a burden may be slight, the State's interests must be weighty.
According to Plaintiffs, their right to vote is unreasonably and arbitrarily burdened by ORC § 3509.03's deadline and, by extension, the Secretary of State's accompanying interpretation in Directive 2012-35. In 2005, in the wake of the 2004 election, all registered voters in Ohio could vote in person the 35 days prior to Election Day. Now, all weekend voting is eliminated for all Ohio voters, except for UOCAVA voters, who may or may not be able to vote those days depending on the county in which they live. The burden on Plaintiffs — and their members and supporters — is particularly high, they argue, because their constituency represents a large percentage of those who voted in person in the last three days before Election Day. Plaintiffs offer statistical support for these contentions, i.e., studies that indicate that minority and working class voters will be disproportionately affected by the restrictions on in-person early voting. (See statistical overview, pages 8-9, supra.) Defendants do not dispute these
Instead, Defendants argue that the burden is slight and, at any rate, it is the result of the State's need to alleviate the burden on elections boards caused by in-person early voting. Non-UOCAVA voters have 23 days in which to cast an in-person early vote, and due to Defendant Secretary of State's Directive, all of that voting will occur at boards of elections operating under an exact weekday schedule. Further, Defendants argue, Plaintiffs' claim relates to absentee voting, which is not a fundamental right and, therefore, any restriction arising out of reasonable State interests — such as alleviating the burden on elections boards — is not a constitutional violation. Anyway, Defendants assert, Ohio voters can just mail in their absentee ballots or vote on Election Day.
As a matter of law, this Court finds that Plaintiffs have a constitutionally protected right to participate in the 2012 election — and all elections — on an equal basis with all Ohio voters, including UOCAVA voters. See Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Bush v. Gore, 531 U.S. 98, 104-05, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000). Here, the State had granted the right to in-person early voting to all Ohio voters, in ORC § 3509.03
Defendants do not counter Plaintiffs' assertion that restricting in-person early voting significantly impacts thousands of Ohio voters or that it impacts certain segments of the population more than others. Instead, Defendants argue first that the State's action is justified to address the needs of Ohio elections boards as they prepare for Election Day, and, secondly, that the State is justified in severing the electorate into two groups — UOCAVA and non-UOCAVA — to serve the particular needs of the military and, albeit to a lesser extent, overseas voters.
Defendants offer little in support of their claim that Ohio elections boards cannot simultaneously accommodate in-person early voting and pre-Election Day preparations during the three days prior to Election Day. Defendants present the declaration of Matthew Damschroder, Deputy Assistant Secretary of State. (Defs. Exh. 8, doc. #35-8, & & 26, 27.) Mr. Damschroder describes the myriad duties required of elections boards and poll workers, from displaying a precinct map and collecting supplies to preparing the official list of registered voters which contain "notations of those voters who have already requested an absentee ballot by mail or in person in order to prevent an absentee voter from also casting a regular ballot on Election Day" pursuant to ORC § 3509.06(D). (Defs.' Memo. Contra, pages 17-18; see also Declaration of Matthew M. Damschroder, Defs. Exh. 8, & & 26, 27.)
(Amicus Brief, Cuyahoga County, & & 2 and 3.) Although it can speak only for itself, Cuyahoga County challenges Defendants' justification that all boards of elections are too burdened with work and budget concerns to provide equal in-person voting for
At first glance, Defendants' second justification for severing the electorate into two classes appears to weigh heavily in favor of Defendants. Military voters have almost no control over their schedules, particularly in times of sudden deployment, as detailed by the declarations of two career military officers. (Defs. Exh. 7, Dec. of Colonel Duncan D. Aukland, and Defs. Exh. 9, Dec. of Captain Robert H. Carey, Jr.) Defendants have consistently argued that UOCAVA voters are excluded from the State's withdrawal of three extra days of in-person voting because
(Defs.' Mem. Contra, pages 13-14, emphasis added.)
Notably, though, the "statutory scheme" described by Defendants does
(Response, page 2, emphasis added.) In sum, Defendants' justification for excepting UOCAVA voters from the 6 p.m. Friday deadline — that the military
The Anderson Court instructs reviewing courts to test "the legitimacy and strength" of each interest put forward by the State and to "consider the extent to which those interests make it necessary to burden the plaintiff's rights." 460 U.S. at 789, 103 S.Ct. 1564. Here, the strength of the State's interest in carving out an exception for UOCAVA voters is hardly Herculean, as protection of that interest has been left, deliberately, to each county board's discretion. The Secretary of State emphasized the importance of "level[ing] the playing field" insofar as non-UOCAVA voting access was concerned, but he was silent regarding the three days prior to Election Day for UOCAVA voters. He could have required all boards of election to be open Saturday, Sunday and Monday for UOCAVA voters, but he did not. "Whether to be open those three days for in-person absentee voting by UOCAVA voters
From the onset of this litigation, Defendants have pointed to special concerns for the military — concerns all parties share — and the military's need to maintain additional access to in-person early voting. But for UOCAVA voters, what is left is, potentially, one day: Monday. Defendants have presented no evidence to sustain the inference that in-person early voting on Monday — one day — will burden county boards of elections to the extent that the injury to Plaintiffs is justified. Moreover, Defendants undercut the virtue of their support of military voters by failing to protect any significant measure of UOCAVA voting. Unless a serviceperson is "suddenly deployed" at exactly the right time — enabling in-person voting on Monday — he or she will likely be unable to vote, depending on the local elections board's "discretion." That the State cannot justify its interest in foreclosing Ohio voters for one day emphasizes the arbitrary nature of its action.
Finally, this Court notes that restoring in-person early voting to all Ohio voters through the Monday before Election Day does not deprive UOCAVA voters from early voting. Instead, and more importantly,
On balance, the right of Ohio voters to vote in person during the last three days prior to Election Day — a right previously conferred to all voters by the State — outweighs the State's interest in setting the 6 p.m. Friday deadline. The burden on Ohio voters' right to participate in the national and statewide election is great, as evidenced by the statistical analysis offered by Plaintiffs and not disputed by Defendants. Moreover, the State fails to articulate a precise, compelling interest in establishing the 6 p.m. Friday deadline as applied to non-UOCAVA voters and has failed to evidence any commitment to the "exception" it rhetorically extended to UOCAVA voters. Therefore, the State's interests are insufficiently weighty to justify the injury to Plaintiffs. See Anderson v. Celebrezze, 460 U.S. 780, 798, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983).
The issue here is
As a result of the foregoing, this Court finds that Plaintiffs are likely to succeed on the merits of their claim.
Plaintiffs will suffer irreparable injury if in-person early voting is not restored the last three days before Election Day, and there is no definitive evidence before the Court that elections boards will be tremendously burdened. Certainly, the public interest is served by restoring in-person early voting to all Ohio voters. "Our form of representative democracy is premised on the concept that every individual is entitled to vote on equal terms, and each individual's vote carries the same value as every other vote." Doe v. Walker, 746 F.Supp.2d 667, 682 (D.Maryland, 2010) (citing Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)). Restoring in-person early voting to all Ohio voters through the Monday before Election Day returns to voters the same opportunity to vote as previously conferred under Ohio law.
For the reasons discussed above, this Court hereby
That Ohio Revised Code § 3509.03 is unconstitutional to the extent it changes the deadline for in-person early voting
That Substitute Senate Bill 295's enactment of Ohio Revised Code § 3509.03 with the Amended Substitute House Bill 224 amendments violates the Equal Protection Clause of the United States Constitution.