Case: 1:12-cv SJD Doc #: 54 Filed: 02/21/13 Page: 1 of 9 PAGEID #: 652

Transcription

1 Case 112-cv SJD Doc # 54 Filed 02/21/13 Page 1 of 9 PAGEID # 652 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION Fair Elections Ohio, et al., Plaintiffs, Jon Husted, in his official capacity as Secretary of State of Ohio, et al., Defendants. Case No. 112-cv-797 Chief Judge Susan J. Dlott DEFENDANTS OHIO SECRETARY OF STATE JON HUSTED S AND OHIO ATTORNEY GENERAL MIKE DeWINE S ANSWER TO PLAINTIFFS SECOND AMENDED COMPLAINT [DOC. 53] For their Answer to the Amended Complaint in this action, Defendants, Ohio Secretary of State Jon Husted and Ohio Attorney General Mike DeWine, hereby admit, deny, and aver as follows 1. Defendants state that the introductory paragraph of the Second Amended Complaint states legal conclusions to which no response is required. To the extent a response is required, Defendants deny all the allegations in the introductory paragraph and specifically deny that Ohio law regarding jailed individuals violates any provision of federal law or the United States Constitution. 2. In response to the allegations set forth in Paragraph 1 of the Second Amended Complaint, Defendants specifically deny that Fair Elections Ohio must divert resources as a result of Ohio s statutory scheme and that Ohio law creates an arbitrary preference for one category of votes over another such that there are any unequal voting opportunities. Defendants admit that Fair Elections Ohio has filed in the state as a political action committee. Defendants deny the remaining allegations for lack of knowledge.

2 Case 112-cv SJD Doc # 54 Filed 02/21/13 Page 2 of 9 PAGEID # In response to the allegations set forth in Paragraph 2 of the Second Amended Complaint, Defendants specifically deny that THE AMOS PROJECT will divert resources as a result of Ohio s statutory scheme or that Ohio law will deprive eligible voters of the right to vote if they are arrested on or after the weekend before an election and remain in custody on Election Day. Defendants deny the remaining allegations for lack of knowledge. 4. In response to the allegations set forth in Paragraph 3 of the Second Amended Complaint, Defendants specifically deny that CURE-OHIO will divert resources as a result of Ohio s statutory scheme and that Ohio s law disenfranchises or deprives recent arrestees the opportunity to vote. Defendants deny the remaining allegations for lack of knowledge. 5. In response to the allegations set forth in Paragraph 4 of the Second Amended Complaint, Defendants admit that Secretary Husted is the current Secretary of State, that he is the chief elections officer, and that he is a resident of Franklin County. Defendants further state that the Ohio Revised Code speaks for itself. 6. In response to the allegations contained in Paragraph 5 of the Second Amended Complaint, Defendants admit that Mike DeWine is the current Attorney General for the state of Ohio and that he is a resident of Greene County, Ohio. Further answering, Defendants state that Ohio Revised Code Section speaks for itself and no further response is required. 7. Defendants admit this action arises under federal law for purposes of federal question jurisdiction. Defendants deny the remaining allegations and specifically deny that this Court has subject matter jurisdiction of this action because Plaintiffs lack standing and Plaintiffs claims are not ripe for adjudication. 8. In response to the allegations set forth in Paragraph 7 of the Second Amended Complaint, Defendants admit that venue is proper in this District. Defendants deny the 2

3 Case 112-cv SJD Doc # 54 Filed 02/21/13 Page 3 of 9 PAGEID # 654 remaining allegations and specifically deny that Plaintiffs Second Amended Complaint sets forth any unlawful practices on the part of defendants. 9. Defendants admit the allegations set forth in Paragraph 8 of the Second Amended 10. In response to the allegations contained in Paragraph 9 of the Second Amended Complaint, Defendants state that the Ohio Constitution and Ohio Revised Code speak for themselves. Further answering, Defendants admit that an otherwise qualified elector has the right to vote notwithstanding the fact that he or she is in jail on pending charges. 11. Defendants deny the allegations set forth in Paragraph 10 of the Second Amended 12. In response to the allegations set forth in Paragraph 11 of the Second Amended Complaint, Defendants state that Ohio Revised Code (A) speaks for itself. 13. In response to the allegations set forth in Paragraph 12 of the Second Amended Complaint, Defendants admit it is possible that people will be arrested and admitted to Ohio detention facilities between 600 p.m. on the Friday before any election and the close of the polls on Election Day. Defendants deny the remaining allegations contained in Paragraph 12 for lack of knowledge. 14. In response to the allegations set forth in Paragraph 13 of the Second Amended Complaint, Defendants state that Ohio Revised Code (A) and (B) speak for themselves and the remaining allegations state legal conclusions to which no response is required. 15. In response to the allegations set forth in Paragraph 14 of the Second Amended Complaint, Defendants state that the procedure set forth in R.C speaks for itself. 3

4 Case 112-cv SJD Doc # 54 Filed 02/21/13 Page 4 of 9 PAGEID # 655 Further answering, Defendants deny that R.C disenfranchises anyone, and deny the remaining allegations set forth in Paragraph The allegations set forth in Paragraph 15 of the Second Amended Complaint state legal conclusions to which no response is required. To the extent a further response is required, Defendants deny the allegations set forth in paragraph 15 of the Second Amended 17. In response to the allegations set forth in Paragraph 16 of the Second Amended Complaint, Defendants deny for lack of knowledge the first two sentences of Paragraph 16 of the Second Amended Further answering, Defendants deny the allegation set forth in the third sentence of Paragraph In response to the allegations set forth in Paragraph 17 of the Second Amended Complaint, Defendants state that Paragraph 17 states legal conclusions to which no response is required. To the extent a further answer is required, Defendants deny the allegations set forth in Paragraph 17 of the Second Amended 19. Defendants deny the allegations set forth in Paragraph 18 of the Second Amended 20. Defendants deny the allegations set forth in Paragraph 19 of the Second Amended 21. In response to the allegations contained in Paragraph 20 of the Second Amended Complaint, Defendants reallege and restate their answers contained in the foregoing Paragraphs Defendants deny the allegations set forth in Paragraph 21 of the Second Amended 4

5 Case 112-cv SJD Doc # 54 Filed 02/21/13 Page 5 of 9 PAGEID # The allegations set forth in Paragraph 22 of the Second Amended Complaint state legal conclusions to which no response is required. To the extent a further response is required, Defendants deny the allegations contained in Paragraph 22 of the Amended 24. Defendants deny the allegations set forth in Paragraph 23 of the Second Amended 25. In response to the allegations set forth in Paragraph 24 of the Second Amended Complaint, Defendants admit that Ohio law allows certain electors confined in hospitals to vote by absentee ballot, but denies that such people are similarly situated to arrestees or detainees. 26. Defendants deny the allegations set forth in Paragraph 25 of the Second Amended 27. Defendants deny the allegations set forth in Paragraph 26 of the Second Amended 28. Defendants deny the allegations set forth in Paragraph 27 of the Second Amended 29. Defendants deny the allegations set forth in Paragraph 28 of the Second Amended 30. Defendants deny the allegations set forth in Paragraph 29 of the Second Amended 31. In response to the allegations contained in Paragraph 30 of the Second Amended Complaint, Defendants reallege and restate their answers contained in the foregoing Paragraphs

6 Case 112-cv SJD Doc # 54 Filed 02/21/13 Page 6 of 9 PAGEID # The allegations set forth in Paragraph 31 of the Second Amended Complaint state a legal conclusion to which no response is required. To the extent a further response is required, Defendants admit the allegations set forth in Paragraph 31 of the Second Amended 33. Defendants deny the allegations set forth in Paragraph 32 of the Second Amended 34. The allegations set forth in Paragraph 33 of the Second Amended Complaint state a legal conclusion to which no response is required. To the extent a further response is required, Defendants deny the allegations set forth in Paragraph 33 of the Second Amended 35. Defendants deny the allegations set forth in Paragraph 34 of the Second Amended 36. Defendants deny the allegations set forth in Paragraph 35 of the Second Amended 37. Defendants deny the allegations set forth in Paragraph 36 of the Second Amended 38. In response to the allegations contained in Paragraph 37 of the Second Amended Complaint, Defendants reallege and restate their answers contained in the foregoing Paragraphs In response to the allegations contained in Paragraph 38 of the Second Amended Complaint, Defendants state that Section 2 of the Voting Rights Act speaks for itself, and that Paragraph 38 states a legal conclusion to which no response is required. 40. In response to the allegations contained in Paragraph 39 of the Second Amended Complaint, Defendants deny the first sentence for lack of knowledge, and deny the second sentence. 6

7 Case 112-cv SJD Doc # 54 Filed 02/21/13 Page 7 of 9 PAGEID # Defendants deny the allegations set forth in Paragraph 40 of the Second Amended 42. Defendants deny the allegations set forth in Paragraph 41 of the Second Amended 43. Defendants deny the allegations set forth in Paragraph 42 of the Second Amended 44. In response to the allegations contained in Paragraph 43 of the Second Amended Complaint, Defendants reallege and restate their answers contained in the foregoing Paragraphs In response to the allegations contained in Paragraph 44 of the Second Amended Complaint, Defendants state that Article 1, Section 2 of the United State Constitution speaks for itself, and that Paragraph 44 states a legal conclusion to which no response is required. 46. In response to the allegations contained in Paragraph 45 of the Second Amended Complaint, Defendants state that the Seventeenth Amendment speaks for itself, and that Paragraph 45 states a legal conclusion to which no response is required. 47. In response to the allegations contained in Paragraph 46 of the Second Amended Complaint, Defendants deny that Ohio has any voting restrictions for recently jailed electors, and state that Ohio law speaks for itself. 48. Defendants deny the allegations set forth in Paragraph 47 of the Second Amended 49. Defendants deny the allegations set forth in Paragraph 48 of the Second Amended 7

8 Case 112-cv SJD Doc # 54 Filed 02/21/13 Page 8 of 9 PAGEID # Defendants deny all allegations in the Request for Relief, and specifically deny that Plaintiffs are entitled to any relief whatsoever. 51. Defendants deny all allegations not expressly admitted. 52. WHEREFORE, having answered the Plaintiffs Amended Complaint, Defendants raise the following defenses, including affirmative defenses FIRST DEFENSE 53. Plaintiffs lack standing to bring this action. SECOND DEFENSE 54. Plaintiffs claims are not yet ripe for review. THIRD DEFENSE 55. The issuance of a preliminary injunction would cause substantial harm to third parties. FOURTH DEFENSE 56. Plaintiffs fail to state a claim upon which relief may be granted. FIFTH DEFENSE 57. This Court does not have jurisdiction to hear this action. SIXTH DEFENSE 58. Ohio Revised Code Section is constitutional. SEVENTH DEFENSE 59. Plaintiffs failed to join all necessary parties to this action. EIGHTH DEFENSE 60. Defendants reserve the right to add defenses, including affirmative defenses, as may be disclosed during the course of this proceeding. 8

9 Case 112-cv SJD Doc # 54 Filed 02/21/13 Page 9 of 9 PAGEID # 660 WHEREFORE, having fully answered, Defendants submit that the Amended Complaint has no merit and should be dismissed. Respectfully submitted, MIKE DEWINE Ohio Attorney General /s/ Aaron D. Epstein AARON D. EPSTEIN ( ) RYAN L. RICHARDSON (PHV) Assistant Attorneys General Constitutional Offices Section 30 East Broad Street, 16th Floor Columbus, Ohio Tel (614) Fax (614) aaron.epstein@ohioattorneygeneral.gov ryan.richardson@ohioattorneygeneral.gov Counsel for Defendants Secretary of State Jon Husted and Attorney General Mike DeWine CERTIFICATE OF SERVICE I hereby certify that the foregoing Answer of Defendants to Plaintiffs Second Amended Complaint was filed electronically on February 21, Notice of this filing will be sent to all parties by operation of the Court s electronic filing system. /s/ Aaron D. Epstein AARON D. EPSTEIN ( ) Assistant Attorney General 9