Nos , , IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

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1 Case: Document: Filed: 09/14/2012 Page: 1 Nos , , IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1, et al., Plaintiffs-Appellees v. JON HUSTED, et al., Defendants-Appellants On Appeal from the United States District Court for the Southern District of Ohio Case No. 2:12-cv BRIEF OF APPELLANTS IN NO AND OF PROPOSED VOTER INTERVENORS IN NOS AND Patrick T. Lewis ( ) BAKER & HOSTETLER LLP PNC Center, 1900 E. Ninth Street Cleveland, Ohio Telephone: (216) Facsimile: (216) PLewis@bakerlaw.com Counsel For Appellants and Proposed Intervenors Thomas Kelly, Emilie Illson and Roberta Van Atta September 14, 2012 Elizabeth Petrela Papez Eric M. Goldstein WINSTON & STRAWN LLP 1700 K Street, N.W. Washington, DC Telephone: (202) Facsimile: (202) epapez@winston.com Counsel For Proposed Intervenor Citizens Reform Association of Cuyahoga County and Appellants and Proposed Intervenors Thomas Kelly, Emilie Illson and Roberta Van Atta

2 Case: Document: Filed: 09/14/2012 Page: 2 CORPORATE DISCLOSURE STATEMENT Sixth Circuit Case Nos: , , Case Name: Service Employees Int l Union Local 1, et al., v. Jon Husted, et al. Pursuant to Fed. R. App. P and Sixth Circuit Rule 26.1, Proposed Intervenor Appellant Citizens Reform for Cuyahoga County makes the following disclosure: 1. Is said party a subsidiary or affiliate of a publicly owned corporation? No. 2. Is there a publicly-owned corporation, not a party to the appeal, that has a financial interest in the outcome of these cases? No. /s/ Elizabeth Petrela Papez September 14, 2012 Elizabeth Petrela Papez Date i

3 Case: Document: Filed: 09/14/2012 Page: 3 TABLE OF CONTENTS Page STATEMENT WITH RESPECT TO ORAL ARGUMENT... vii INTRODUCTION... 1 STATEMENT OF ISSUES PRESENTED... 4 JURISDICTIONAL STATEMENT... 4 STATEMENT OF THE CASE... 5 BACKGROUND AND STATEMENT OF FACTS... 8 Ohio s Precinct-Based Voting System... 8 Ohio s Provisional Ballot System... 9 The Parties Evidence The Bipartisan Voter Appellants and Proposed Intervenors Here STANDARD OF REVIEW SUMMARY OF ARGUMENT ARGUMENT I. THE DISTRICT COURT S ANALYSIS OF THE INJUNCTION FACTORS VIOLATES OHIO AND FEDERAL LAW A. The District Court s Merits Analysis Is Premised on a Misreading of the Relevant Ohio Statutes B. The District Court s Fourteenth Amendment Analysis Conflicts With Supreme Court and Circuit Precedent The District Court Erroneously Treated The Possibility Of Poll- Worker Error As An Invidious Burden Warranting Strict Constitutional Scrutiny The District Court Similarly Erred in Classifying the Burden the Challenged Laws Impose as Severe Under A Proper Analysis, Ohio s Provisional Ballot Law Easily Passes Muster and Any Contrary Conclusion Would Split with Precedents from the Supreme Court and Other Circuits C. The District Court s Order Also Fails to Satisfy the Remaining Requirements for Preliminary Injunctive Relief ii

4 Case: Document: Filed: 09/14/2012 Page: 4 II. THE DISTRICT COURT ABUSED ITS DISCRETION IN DENYING THE VOTER APPELLANTS MOTION TO INTERVENE A. The Motion Was Timely Under Circuit Law B. The District Court Similarly Erred in Concluding That the Proposed Voter Intervenors Interests Were Adequately Represented by the State CONCLUSION CERTIFICATE OF COMPLIANCE WITH RULE 32(a) CERTIFICATE OF SERVICE ADDENDUM 1 DESIGNATION OF THE RECORD iii

5 Case: Document: Filed: 09/14/2012 Page: 5 TABLE OF AUTHORITIES CASES Page(s) Anderson v. Celebrezze, 460 U.S. 780 (1983) Burdick v. Takushi, 504 U.S. 428 (1992)...passim Burton v. Georgia, 953 F.2d 1266 (11th Cir. 1992) Carrington v. Rash, 380 U.S. 89 (1965) Citizens for Legislative Choice v. Miller, 144 F.3d 916 (6th Cir. 1998)... 28, 50 City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970) Clark v. Putnam County, 168 F.3d 458 (11th Cir. 1999)... 51, 53 Crawford v. Marion County Election Board, 553 U.S. 181 (2008)...passim Damon s Restaurants, Inc. v. Eileen K Inc., 461 F. Supp. 2d 607 (S.D. Ohio 2006)... 18, 43 Dunn v. Blumstein, 405 U.S. 330 (1972) Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100 (6th Cir. 1982) Grubbs v. Norris, 870 F.2d 343 (6th Cir. 1989)... 50, 52, 53 iv

6 Case: Document: Filed: 09/14/2012 Page: 6 Harper v. Va. Bd. of Elections, 383 U.S. 663 (1966)... 20, 32, 39 Jansen v. City of Cincinnati, 904 F.2d 336 (6th Cir. 1990)... 48, 49, 51 Jones v. City of Monroe, 341 F.3d 474 (6th Cir. 2003) League of Women Voters of Ohio v. Blackwell, 432 F. Supp. 2d 723 (N.D. Ohio 2005), aff d League of Women Voters of Ohio v. Brunner, 548 F.3d 463 (6th Cir. 2008)... 38, 51 Leary v. Daeschner, 228 F.3d 729 (6th Cir. 2000)... 18, 43, 44 Miller v. Blackwell, 348 F. Supp. 2d 916 (S.D. Ohio 2004)... 49, 53 Morgan v. Federal Bureau of Alcohol, Tobacco & Firearms, 509 F.3d 273 (6th Cir. 2007) Nat l Fed. of Indep. Businesses v. Sebelius, 132 S.Ct (2012) Northland Family Planning Clinic, Inc. v. Cox, 487 F.3d 323 (6th Cir. 2007) Purcell v. Gonzalez, 549 U.S. 1 (2006)... 19, 45 Purnell v. Akron, 925 F.2d 941 (6th Cir. 1991) Reynolds v. Sims, 377 U.S. 533 (1964) Sandusky Cnty. Dem. Party v. Blackwell, 387 F.3d 565 (6th Cir. 2004)...passim v

7 Case: Document: Filed: 09/14/2012 Page: 7 Shannon v. Jacobowitz, 394 F.3d 90 (2d Cir. 2005) State ex rel. Painter v. Brunner, 128 Ohio St.3d 17 (Ohio 2011) Tumblebus Inc. v. Cranmer, 399 F.3d 754 (6th Cir. 2005) United States v. Michigan, 424 F.3d 438 (6th Cir. 2005) United States v. Tennessee, 260 F.3d 587 (6th Cir. 2001)... 46, 47 Warf v. Bd. of Elections of Green County, Ky., 619 F.3d 553 (6th Cir. 2010)... 40, 41, 42, 45 STATUTES Help America Vote Act, 42 U.S.C et. seq. ( HAVA )...passim Ohio Rev. Code (A)... 8 Ohio Rev. Code (A)... 9 Ohio Rev. Code (A)(1)... 10, 11, 12 Ohio Rev. Code (B)(4)(a)(iii)... 5 vi

8 Case: Document: Filed: 09/14/2012 Page: 8 STATEMENT WITH RESPECT TO ORAL ARGUMENT Pursuant to Federal Rule of Appellate Procedure 34(a)(1) and Sixth Circuit Rule 34(a), Appellants in No and Proposed Intervenors in Nos and submit the following statements with respect to oral argument: No Appellants Thomas Kelly, Emilie Illson, and Roberta Van Atta, a bipartisan group of three registered Ohio voters who appeal the District Court s denial of their motion to intervene below, respectfully request oral argument because they believe it will help the Court achieve a more thorough understanding of the grounds for intervention and the perspective they would have brought, and will bring on remand, to the voting rights questions the District Court decided in the same opinion in which it entered the injunction at issue in Nos and Nos , Proposed Intervenors Thomas Kelly, Emilie Illson, and Roberta Van Atta (Appellants in No ) and Proposed Intervenor Citizens Reform Association for Cuyahoga County ( CRACC ), respectfully request oral argument as intervenors or amici because they believe it will assist the Court in assessing the validity of the District Court s injunction and its impact on Ohio voters, particularly those who, like Mmes. Illson and Van Atta, cast their ballots at multi-precinct polling locations. vii

9 Case: Document: Filed: 09/14/2012 Page: 9 INTRODUCTION There is no constitutional right to an election free of human error. Yet that is the right this Court would have to recognize to affirm the injunction at issue in these appeals. The reason is that the due process and equal protection guarantees on which the District Court purported to base the injunction have never been applied to prohibit the kind of non-discriminatory ballot counting rules Plaintiffs challenge in this case. That is not surprising. The District Court s unprecedented extension of Fourteenth Amendment doctrine and misapplication of settled injunction law would, if affirmed, conflict with Supreme Court precedent and the law of several circuits by turning every election irregularity into a constitutional excuse for federal courts to commandeer state election processes. The District Court s August 27 order directs Ohio s Secretary of State to count in the November election provisional ballots that would otherwise be disqualified under Ohio law if the disqualifying defect can be attributed to poll worker error. The injunction rests on the purported unconstitutionality of two Ohio statutory provisions that would, absent the District Court s intervention, require the State to disqualify all provisional ballots that are cast in the wrong precinct, or whose envelopes do not bear a signature that matches the signature on record for the voter who submits the ballot. The District Court held that these provisions violate the Fourteenth Amendment because they treat all miscast or improperly 1

10 Case: Document: Filed: 09/14/2012 Page: 10 verified ballots equally. To remedy this perceived problem of equal treatment, the injunction directs the State to count defective ballots attributable to poll-worker error differently than defective ballots attributable to something else. The result is a judgment that replaces a non-discriminatory state statutory regime with a federal court order that requires the State to pick and choose which defective ballots to count and, in some cases, to count certain portions of miscast ballots but not others. This judgment cannot be squared with controlling constitutional law or the law governing injunctive relief. Preliminary injunctions are extraordinary remedies that require strict proof and searching review in any case, and particularly where federal courts use them to refashion state election laws. The injunction here cannot survive such review for two, independent reasons. First, the District Court s conclusion that Plaintiffs are likely to succeed on the merits of their constitutional challenge rests on a fundamental misapplication of Ohio and federal law. The District Court s opinion presumes that responsibility for complying with the ballot qualification requirements at issue here falls on poll workers rather than voters. As Ohio authorities and the State s filings make clear, that is incorrect. But even if Ohio law did relieve voters of responsibility for voting in the correct precinct or properly executing their own ballot envelopes, Ohio s decision to disqualify all miscast or improperly executed provisional ballots would not violate the Constitution. It is undeniably rational for the State to treat 2

11 Case: Document: Filed: 09/14/2012 Page: 11 such ballots equally and not require its officials to try to divine, after the results of regular voting are known, whether the defect on a particular ballot resulted from a certain source of error in order to decide which facially defective ballots to count. The District Court s determination that the challenged laws are unconstitutional thus depends on its conclusion that they impose the kind of rare burden on the franchise that triggers strict scrutiny rather than rational basis review. That is where the court s constitutional analysis leaves the rails. No case applies, or supports applying, strict scrutiny to a facially neutral state method of addressing inevitable election-related human error that would affect, at most, some 2% of provisional ballots. That is evident from a review of Supreme Court and circuit law, and from the District Court s concession that its analysis turns not on the Ohio statute as enacted, but as rewritten by a prior (and contested) federal consent decree. The opinion thus confirms that it is the District Court s revision of the law, not the law itself, that threatens the franchise. Second, the District Court s order warrants reversal because its conclusions on the remaining injunction factors lack sufficient legal and factual support. The District Court s erroneous refusal to allow the No Appellants to intervene below like its erroneous reliance on flawed legal assumptions, stale anecdotes, and statistical extrapolations as evidence of irreparable harm in November are additional reasons to reverse its order and vacate the injunction. 3

12 Case: Document: Filed: 09/14/2012 Page: 12 STATEMENT OF ISSUES PRESENTED 1. Whether the District Court erred as a matter of law in declaring certain provisions of Ohio s provisional ballot law unconstitutional and in enjoining enforcement of those provisions to the extent they require the disqualification of provisional ballots whose precinct or affirmation defects can be attributed to pollworker error. 2. Whether the District Court abused its discretion in denying the Voter Appellants motion to intervene to protect their voting rights from dilution under the Plaintiffs proposed injunction. JURISDICTIONAL STATEMENT The District Court had jurisdiction under 28 U.S.C. 1331, 1343(a)(3) and 1343(a)(4) to conduct the preliminary injunction proceedings below. Jurisdiction over the State s appeals from the District Court s injunction is proper under 28 U.S.C. 1292(a)(1). Voter Appellants and Proposed Intervenor CRACC have moved to intervene in those appeals. This Court has jurisdiction under 28 U.S.C over Voter Appellants appeal challenging the District Court s denial of their motion to intervene as an abuse of discretion. See, e.g., Purnell v. Akron, 925 F.3d 941, 944 n.2 (6th Cir. 1991). 4

13 Case: Document: Filed: 09/14/2012 Page: 13 STATEMENT OF THE CASE On June 22, 2012, Plaintiffs-Appellees, several unions and a community organizing group, filed their complaint challenging the constitutionality of two subsections of Ohio s provisional ballot law. (R.E. 1, Compl.) The first requires that provisional ballots be cast in the precinct where the individual who submits the ballot is qualified to vote. See Ohio Rev. Code (B)(4)(a)(ii); (B)(4)(b)(ii). The second subsection requires the voter to execute an affirmation of his eligibility to vote in order to cast the provisional ballot. See id (B)(4)(a)(iii). Plaintiffs sought both a declaration of these sections unconstitutionality (on equal protection and substantive due process grounds), (R.E. 1 at 35 c-e), and an order enjoining the Secretary of State and a putative defendant class of all Ohio County Board of Election officials from enforcing the challenged provisions in the November election. (R.E. 4.) 1 On June 29, 2012, Plaintiffs moved to certify the proposed class. (R.E. 25.) On July 6, the Secretary of State opposed Plaintiffs request for a preliminary injunction. (R.E. 28.) On July 13, Plaintiffs amended their complaint, (R.E. 32), and the Secretary and the named county defendants opposed 1 On June 26, the District Court declared this case related to No. 2:06-cv , Northeast Ohio Coalition for the Homeless ( NEOCH ) v. Husted. Although the Court also initially designated as related No. 1:10-cv-00820, Hunter v. Hamilton County Board of Elections, (R.E. 15 (June 26, 2012)), it later reversed course and concluded that the Hunter case would remain with Chief Judge Dlott, (R.E. 17 (June 26, 2012).) 5

14 Case: Document: Filed: 09/14/2012 Page: 14 certification and moved to dismiss the suit, (R.E. 31, 39, 47, 50.) Also on July 13, three county election board members Diane Carnes, Dale Fellows, and Chris Gibbs who were not named defendants but would have been part of Plaintiffs proposed defendant class moved to intervene as additional defendants. (R.E. 46.) These proposed intervenors came from rural or suburban counties and argued that their interests diverged from those of the putative class representatives, all of whom were members of the boards of election in Ohio s three most populous counties. (Id.) In response to these motions, Plaintiffs moved for leave to file a Second Amended Complaint that would moot the class certification issue and the county board members dismissal and intervention motions by dropping the board members and naming only the Secretary of State as a defendant. (R.E. 57.) The District Court granted Plaintiffs motion on July 23, 2012, (R.E. 62), and Plaintiffs filed their operative (Second Amended) complaint the following day, (R.E. 63). On July 27, 2012, a bipartisan group of registered Ohio voters that included Voter Appellants Mmes. Emilie Illson and Roberta Van Atta and Mr. Thomas Kelly moved to intervene to supply the local perspective previously represented by the county board member defendants. (R.E. 65.) These individuals sought intervention because their fundamental right to vote would be directly impacted by the litigation, and because they faced disenfranchisement under the provisions of 6

15 Case: Document: Filed: 09/14/2012 Page: 15 the proposed injunction that would, if entered, subject their votes to dilution by directing the State to count all or part of otherwise unlawful (miscast or improperly verified) provisional ballots that resulted from poll worker error. (Id.) Pursuant to Fed. R. Civ. P. 24(c), Appellants attached to their motion to intervene a motion to dismiss the Second Amended Complaint or, in the alternative, for summary judgment. (R.E ) On July 30, 2012, the District Court heard argument on the motion to intervene and Plaintiffs request for a preliminary injunction. (R.E. 69.) Despite Plaintiffs offer to stipulate to the Voter Appellants participation as amici curiae, the District Court refused to allow counsel for Appellants to present arguments opposing the motion for preliminary injunction because it had not granted the motion to intervene. (Id. 9:3-10, 19:24-20:15.) On August 27, 2012, the District Court entered its Plenary Opinion and Order granting Appellees motion for preliminary injunction and denying Appellants motion to intervene. (R.E. 67.) On September 4, 2012, the Ohio Attorney General moved to intervene in the District Court on the ground that the Secretary of State no longer intended to defend the constitutionality of the wrong-precinct provision of the Ohio law enjoined by the Court s August 27 order. (R.E. 68.) On September 6, 2012, the Secretary of State and Attorney General each appealed from the District Court s 7

16 Case: Document: Filed: 09/14/2012 Page: 16 August 27 order, (R.E. 70, 71), and this Court docketed their respective appeals as Case Nos and Voter Appellants Thomas Kelly, Roberta Van Atta, and Emilie Illson appealed from the same order on September 10, 2012, (R.E. 72), and their appeal was docketed as Case No This Court consolidated the three appeals by orders dated September 10 and 11, 2012, and set an expedited briefing schedule. The Ohio Attorney General, the Voter Appellants in No , and the Citizens Reform Association for Cuyahoga County ( CRACC ) have all moved for leave to intervene in Case Nos and Those motions remain pending. BACKGROUND AND STATEMENT OF FACTS Ohio s Precinct-Based Voting System. Ohio utilizes a precinct-based voting system under which county boards of election divide political subdivisions into separate precincts for voting purposes. Ohio Rev. Code (A). The board of elections must limit the size of the precinct to contain only a limited number of voters, and must draw the precinct boundaries to take into account factors like the size and location of the polling place, available parking and handicap accessibility, and availability of poll workers. Id. This Court has previously catalogued the advantages this system offers Ohio s voters: The advantages of the precinct system are significant and numerous: it caps the number of voters attempting to vote in the same place on election day; it allows each precinct ballot to list all of the votes a citizen may cast for all pertinent federal, state, and local elections, referenda, 8

17 Case: Document: Filed: 09/14/2012 Page: 17 initiatives, and levies; it allows each precinct ballot to list only those votes a citizen may cast, making ballots less confusing; it makes it easier for election officials to monitor votes and prevent election fraud; and it generally puts polling places in closer proximity to voter residences. Sandusky Cnty. Dem. Party v. Blackwell, 387 F.3d 565, (6th Cir. 2004). Under Ohio s system, each person meeting basic voting eligibility requirements (e.g., that the person is a U.S. citizen, registered to vote, and a state resident) is deemed to have the qualifications of an elector and may vote in all elections in the precinct in which the citizen resides. Ohio Rev. Code (A) (emphasis added). The voter is thus qualified to vote only in his or her precinct of residence. The ballots for each precinct are unique to that precinct. See id (providing that separate ballots for each precinct shall be provided for all elections, so as to enable electors residing in such precincts to cast their votes for the proper candidates in such precincts ). By using separate ballots for each precinct, Ohio s system prevents voters from voting in elections for which they are not qualified, thereby protecting the voters qualified to vote in those elections from having their votes unlawfully diluted. Ohio s Provisional Ballot System. Provisional balloting is used in Ohio to allow voters whose eligibility to vote cannot be determined on election day to cast a ballot that is subject to later verification. As this Court is aware, each precinct is assigned to a polling place (e.g., a school or library) on election day. The procedure by which voters cast their ballots is prescribed by statute. 9

18 Case: Document: Filed: 09/14/2012 Page: 18 When an elector appears in a polling place to vote, the elector shall announce to the precinct election officials the elector s full name and current address and provide identification. Ohio Rev. Code (A)(1). This provision presupposes that the voter addresses the precinct election official for his or her precinct. After checking the voter s identification, the precinct election official will then instruct the voter to sign into the poll book, which is a list of all qualified voters for that precinct. Id (B). The official verifies the voter is in the poll book and compares the voter s signature to an exemplar on file. Id. Assuming all checks out, the election official will give the voter a ballot. Id. The voter then marks the ballot and deposits it into a ballot box to be counted. Id Until 2002, if a voter s name was not found on the poll book for the precinct, or if the voter s eligibility was otherwise questioned, the elector was turned away and not allowed to vote. Sandusky, 387 F.3d at 569. In 2002, Congress enacted a law the Help America Vote Act ( HAVA ), 42 U.S.C et. seq. that requires States to give voters whose qualifications cannot be determined on election day a provisional ballot whose eligibility would later be determined by state election officials. 42 U.S.C (a). Ohio has enacted a system of provisional balloting in conformance with HAVA. Under this system, a voter who appears at his precinct to vote but is 10

19 Case: Document: Filed: 09/14/2012 Page: 19 unable to vote a regular ballot for certain enumerated reasons may cast a provisional ballot instead. Those reasons include that the voter s name does not appear in the poll book, the voter fails to produce a form of identification required by Ohio Rev. Code (A)(1), the voter requested an absentee ballot, or the voter s signature does not appear to match the exemplar signature on file. See id (A)(1-13). To cast a provisional ballot, an individual must execute a written affirmation... before the election official at the polling place that he is a registered voter in the jurisdiction where [he] desires to vote and is eligible to vote in that election. Id (B)(2). The form of the affirmation is prescribed by statute and requires the voter to write his name and to declare that his affirmation is true and correct under penalty of election falsification. Id The form warns provisional voters that their votes will not be counted if they are not a resident of the precinct where they cast their ballot. Id. The voter then deposits the provisional ballot, sealed inside an envelope, into the ballot box. After the close of voting, the ballot boxes are delivered to the board of elections for counting. Upon arrival, the provisional ballot envelopes are separated from the regular ballots until the board of elections can validate that the elector was a registered voter, cast the ballot in the correct precinct, and was 11

20 Case: Document: Filed: 09/14/2012 Page: 20 eligible to vote. Id (A). If the provisional ballot is validated, the envelope is opened and the ballot is counted. Id (B)(3). If the ballot is not validated, the board will not unseal the envelope and the ballot will not be counted. Id (B)(4). At issue in this case are (B)(4)(ii) and (iii), which direct boards of election to reject provisional ballots in either of two situations: The individual named on the affirmation is not eligible to cast a ballot in the precinct or for the election in which the individual cast the provisional ballot; or The individual did not provide all of the information required under division (B)(1) of this section in the affirmation that the individual executed at the time the individual cast the provisional ballot. Ohio law affords equal and uniform treatment to all provisional ballots that fall into these two categories all such ballots are rejected, regardless of the reason the ballot was miscast. The Parties Evidence. In its order, the District Court emphasized that hundreds, if not thousands of electors could have their provisional ballots disqualified if the foregoing provisions are enforced against ballots marred by poll worker error. (R.E. 67, Plenary Op. and Order, 25-26). For this conclusion, the District Court relied principally on the report of Plaintiffs expert, political science professor David C. Kimball. (See id. 26, n.28). Specifically, the District Court defined the problem of wrong-precinct or incomplete-affirmation ballot 12

21 Case: Document: Filed: 09/14/2012 Page: 21 rejections based on Professor Kimball s focus on raw numbers of rejected ballots rather than on the number of rejected ballots as a percentage of total ballots cast. Accordingly, the District Court s opinion does not focus on the fact that Plaintiffs own evidence, including Professor Kimball s analysis, shows that more than 99% of Ohio voters successfully cast their ballots in the 2008 and 2010 general elections. Further, Plaintiffs evidence shows that less than 0.25% of the total ballots cast in Ohio in those years were provisional ballots that were rejected because they were submitted in the wrong precinct or did not bear complete affirmations. In the November 4, 2008, general election, Ohio electors cast 5,773,777 votes. (Voter Turnout: Nov. 4, 2008, available at sos/elections/research/electresultsmain/2008electionresults/turnout aspx) (visited Sept. 13, 2012). Professor Kimball calculated an unsuccessful provisional voting ( UPV ) rate, defined as the number of rejected provisional ballots as a percentage of total ballots cast in the election, of 0.7% for that year, or 39,989 ballots. (R.E. 9, Ex. B, Tbl. 3). Appellees allege that only about 14,000 of those 39,989 rejected ballots (or approximately 0.2% of the total ballots cast that year) were wrong precinct ballots. (R.E. 4, 8-9). Likewise, Plaintiffs contend that only 2,201 of the 39,989 rejected ballots a mere 0.03% of the total number of ballots cast that year were rejected due to affirmation defects. (R.E. 24, Ex. CC). 13

22 Case: Document: Filed: 09/14/2012 Page: 22 In the November 2, 2010, general election, an even smaller percentage of wrong-precinct and/or incomplete-affirmation ballots were reported. Ohio voters cast 3,956,045 votes. (Voter Turnout: Nov. 2, 2010, available at turnout.aspx) (visited Sept. 13, 2012). Professor Kimball calculated a UPV rate for this election of 0.3%, or 11,775 rejected ballots. (R.E. 9, Ex. B, Tbl. 4). Professor Kimball reports that 5,309 of the 11,775 rejected provisional ballots (or approximately 0.13% of the total ballots cast that year) were wrong precinct ballots. (Id. Ex. B, Tbl. 14). Plaintiffs further contend that only 675 of the 11,775 rejected provisional ballots (only 0.017% of the total ballots cast that year) were rejected due to affirmation defects. (R.E. 24, Ex. AA). In the November 8, 2011, general election, Ohio voters cast 3,628,342 votes. (Voter Turnout: Nov. 8, 2011, available at SOS/elections/Research/electResultsMain/2011results/ turnout.aspx) (visited Sept. 13, 2012). Professor Kimball did not calculate a UPV rate for this election, but the Secretary s certified results indicate that a total of 11,287 provisional ballots were rejected. (Official Certification of Provisional Ballots Counted for Nov. 8, 2011 General Election, available at (visited 14

23 Case: Document: Filed: 09/14/2012 Page: 23 Sept. 13, 2012). Using Professor Kimball s methodology, the total UPV rate for this election would be less than 0.3%. In short, the evidence showed, at most, that the likelihood that a qualified Ohio voter would have his ballot rejected due to voting in the wrong precinct or incorrectly filling out a provisional ballot envelope, regardless of the cause (pollworker error or otherwise), is less than one half of one percent. Nevertheless, the Secretary has issued new Directives designed to reduce still further the incidence of wrong-precinct and incomplete-affirmation ballots. The Secretary issued Directive , which requires that poll workers be trained or retrained within 60 days before the November 2012 election on several topics relative to provisional ballots. (R.E. 28 at 4). And the Secretary has simplified the provisional ballot envelope to reduce the risk of incomplete affirmations. (Id.) The Bipartisan Voter Appellants and Proposed Intervenors Here. As detailed in their motion to intervene in Nos and , Appellants and Proposed Intervenors are a bipartisan group of registered Ohio voters and an association of Ohio citizens and voters dedicated to open, honest, and efficient government in Ohio. The Proposed Intervenors fundamental right to vote will be directly impacted by the outcome of these appeals. Pursuant to the District Court s order, the Secretary of State on September 12, 2012, promulgated Directive ordering all boards of election not to 15

24 Case: Document: Filed: 09/14/2012 Page: 24 reject provisional ballots cast in the wrong precinct but correct polling place, unless the poll worker completes a new form, SOS Form 12-D, and attaches it to the voter s provisional ballot envelope. (R.E. 77, Notice of Issuance of Directive , Ex. 1, p. 2.) The new form requires the poll worker to certify that he directed the elector to the correct polling place, and the elector refused to travel there and insisted on voting at the wrong precinct. (Id. Ex. 2.) Unless a SOS Form 12-D is attached to a wrong-precinct ballot, Directive requires the board to remake and count the provisional ballot for only those contests for which the voter was otherwise eligible[,] (id. Ex. 1, p. 2), so-called up-ballot votes. The District Court s injunction therefore directly threatens the Voter Appellants and Proposed Intervenors franchise. The District Court s order and the Secretary s implementing Directive require any provisional ballots cast in the Proposed Voter Intervenors precincts to be counted, in whole or in part, after being remade to exclude down-ballot races for which the elector was not qualified to vote. (R.E. 67 at 56-57); (R.E. 77, Notice of Issuance of Directive , Ex. 1, p. 2). The District Court s order would thus dilute their votes by requiring the State to count in their precincts votes cast by voters who are not qualified to vote there. The District Court s only safeguard against this harm is to require boards of election to remake ballots manually so as to count only those up-ballot races 16

25 Case: Document: Filed: 09/14/2012 Page: 25 for which the voter who miscast the ballot was qualified to vote. (R.E. 67 at 38, 52, 57.) As Appellants counsel argued in support of the motion to intervene, any poll-worker error committed either in determining whether a wrong-precinct ballot should be counted at all, or in remaking the provisional ballot, could result in the dilution of Appellants votes. (R.E. 69, Hr g Tr., ) This concern is especially pronounced for two of the Appellants, Mmes. Illson and Van Atta, who vote in a multi-precinct polling place in Rocky River, Ohio that straddles two Congressional districts. (R.E. 65, Mot. of Bipartisan Group of Voters to Intervene, Ex. A, Van Atta Decl., 6 & Ex. B, Illson Decl., 6.) Certain of the precincts that vote in that polling place are in Ohio s Ninth Congressional District, and others are in the Sixteenth Congressional District. (Id.) Thus, a voter qualified to vote in a precinct in the Sixteenth who incorrectly casts a provisional ballot in a precinct in the Ninth will dilute the votes of the Ninth District precinct, unless the poll worker attaches the SOS Form 12-D to the provisional ballot, and/or the poll workers correctly exclude the Congressional race from the elector s remade ballot. STANDARD OF REVIEW A district court presented with a request for preliminary injunctive relief must consider: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the 17

26 Case: Document: Filed: 09/14/2012 Page: 26 injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction. Tumblebus Inc. v. Cranmer, 399 F.3d 754, 760 (6th Cir. 2005). The court may award such relief only after the Court has carefully considered the[se] four factors[.] Damon s Restaurants, Inc. v. Eileen K Inc., 461 F. Supp. 2d 607, 621 (S.D. Ohio 2006) (citations omitted). In determining whether to uphold a district court s application of these factors, this Court review[s] the district court s legal conclusions de novo and its factual findings for clear error. E.g., Jones v. City of Monroe, 341 F.3d 474, 476 (6th Cir. 2003). [W]hether a movant is likely to succeed on the merits is a question of law [this Court] decide[s] de novo. Tumblebus, 399 F.3d at 760. Further, this Court s deferential review of the district court s factual findings proceeds on the understanding that the proof required to obtain a preliminary injunction is much more stringent than the proof required to survive a summary judgment motion because a preliminary injunction is an extraordinary remedy involving the exercise of a very far-reaching power, which is to be applied only in the limited circumstances which clearly demand it. Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir. 2000). Finally, where a challenged injunction targets State election laws, this Court must weigh considerations specific to election cases in addition to the harms attendant upon issuance or nonissuance of an injunction 18

27 Case: Document: Filed: 09/14/2012 Page: 27 because such injunctions may themselves result in voter confusion and consequent incentive to remain away from the polls. Purcell v. Gonzalez, 549 U.S. 1, 5 (2006). This Court reviews the District Court s denial of the Voter Appellants motion to intervene for abuse of discretion. See, e.g., United States v. Tennessee, 260 F.3d 587, 592 (6th Cir. 2001). SUMMARY OF ARGUMENT Plaintiffs claims are, at bottom, an attack on the sovereign authority federal law gives States over their election processes. More specifically, the claims are an effort to negate the practical significance of this Court s approval of Ohio s precinct voter requirements as a legitimate and commendable method of implementing the state provisional balloting system that Congress required in HAVA, a statute Congress passed after expressly considering and rejecting a requirement that States count provisional ballots that are cast in the wrong precinct for any reason, including poll-worker error. See Sandusky Cnty. Dem. Party v. Blackwell, 387 F.3d 565, (6th Cir. 2004); H.R. 3295, 502(3) (Dec. 12, 2002). Particularly in combination with the NEOCH 2 consent decree the District Court reaffirmed (over the State s objections) below, a decision affirming the District Court s August 27 order would significantly undermine the Sandusky 2 Ne. Oh. Coalition for Homeless v. Blackwell, 467 F.3d 999 (6th Cir. 2006) ( NEOCH ). 19

28 Case: Document: Filed: 09/14/2012 Page: 28 ruling by holding that the Constitution forbids the precinct qualifications on provisional ballot counting that HAVA and Ohio law allow. That the ruling would be confined to cases involving poll-worker error is nary a limitation if the District Court is correct that wrong-precinct ballots are almost always going to be due to poll-worker error. (ECF 67 at 8 (emphasis original).) Affirmance of the District Court s decision would as a practical matter forbid the State from enforcing an election law requirement that the Ohio government, the U.S. Congress and this Court have approved. There are cases in which the Constitution compels such a result. See, e.g., Harper v. Va. Bd. of Elections, 383 U.S. 663 (1966). But this is not one of them. As a proper examination of Plaintiffs claims makes clear, this suit is not a legitimate constitutional challenge to an invidious or impermissibly burdensome state election law. It is part of a campaign to use constitutional claims and federal injunctions to accomplish a policy agenda (elimination of precinct requirements for certain votes) that proponents tried, but failed, to achieve through state and federal legislation. The Voter Appellants and Proposed Voter Intervenors have a right and interest in being heard, here and below, on whether Plaintiffs claims are sufficient to justify a federal court decision invalidating the acts of the voters elected representatives. For the reasons herein, the claims are not nearly sufficient to permit such a result. Requests to enjoin state election laws on constitutional 20

29 Case: Document: Filed: 09/14/2012 Page: 29 grounds seek extraordinary relief that requires rigorous review the District Court s opinion does not satisfy for two, independent reasons. First, the District Court s conclusion that the Plaintiffs are likely to succeed on the merits of their constitutional challenge conflicts with Ohio and federal law. The decision misconstrues Ohio law because it interprets the relevant provisions in ways that ignore statutory text and canons of construction (notably the canon of constitutional avoidance). Further, even assuming the District Court properly construed the Ohio provisions as a matter of state law, its constitutional analysis conflicts with settled Fourteenth Amendment precedents. The District Court s first argument in favor of the strict scrutiny essential to its judgment that the restrictions here are unrelated to voter qualifications and thus invidious restraints on the franchise under the Supreme Court s decision in Crawford v. Marion County Election Board, 553 U.S. 181 (2008), (ECF 67 at 23) fails because it is not supported by any part of Crawford, including the excerpts from Justice Stevens opinion (which garnered only three votes) and Justice Souter s dissent that the District Court misrepresents as the opinion of the Court. (Id. at 23; 41 n.58.) The District Court s fallback argument that strict scrutiny nonetheless applies because the restrictions in issue impose a severe burden on the franchise by denying certain provisional ballot casters the right to vote is equally 21

30 Case: Document: Filed: 09/14/2012 Page: 30 unavailing. The Supreme Court has long held that an election regulation does not impose the kind of severe burden that triggers strict scrutiny merely because its enforcement would disenfranchise certain would-be voters. The reason is clear. Such an approach would subject virtually every state election law to strict scrutiny in violation of the many controlling precedents that refuse to apply such scrutiny to a wide variety of state laws that regulate, and thereby burden, the right to vote. See, e.g., Crawford, 553 U.S. at 190 (Stevens, J.) (explaining that in Burdick v. Takushi, 504 U.S. 428 (1992), we applied Anderson s standard for reasonable, nondiscriminatory restrictions, and upheld Hawaii s prohibition on write-in voting despite the fact that it prevented a significant number of voters from participating in Hawaii elections in a meaningful manner ) (internal quotation marks and citation omitted). The District Court s last-ditch resort to this Court s equal protection analysis in Hunter v. Hamilton County Bd. of Elections, 635 F.3d 219 (6th Cir. 2011), does not save its decision. Because the Ohio provisions at issue here called for disqualification of all miscast or improperly verified provisional ballots, there was nothing unequal about them as enacted or interpreted by the State of Ohio. (ECF 67 at 48 (conceding that the Ohio Revised Code treats all wrong-precinct ballots the same; none is counted ).) The District Court was thus forced to rely on the Ohio law as modified by the NEOCH consent decree to create the unequal 22

31 Case: Document: Filed: 09/14/2012 Page: 31 treatment the court then cited as the basis for invaliding the law under Hunter. (R.E. 67 at ) To the extent the NEOCH decree has created a situation that raises Fourteenth Amendment concerns, the solution is to grant the State s motion to vacate the decree, not to enter a new injunction that solves the problem by directing the State to engage in even more ballot discrimination. Second, and although the errors in the District Court s merits analysis alone warrant reversal, the District Court s judgment also fails because the procedural and factual record below does not support injunctive relief. The District Court clearly abused its discretion in denying the Bipartisan Group of Voters motion to intervene. See Part II infra. And as their proposed filings and the remainder of the record show, this case is fundamentally different from cases in which plaintiffs faced a real and imminent threat of irreparable harm under state laws that sanctioned invidious discrimination or deliberate, systematic disenfranchisement of a discrete population. This case seeks to enjoin the State from enforcing a rational and non-discriminatory ballot counting rule on the ground that restricting the franchise based on poll-worker error violates the Constitution. That is simply incorrect. Because human error is unavoidable in any government-administered system, Plaintiffs claim would require an administratively burdensome constitutional exception to the enforcement of every state election law. The Supreme Court has long rejected such claims to avoid tying the hands of States 23

32 Case: Document: Filed: 09/14/2012 Page: 32 in overseeing their election processes, and has emphasized that doing so is fully consistent with the Constitution because it confers no right to be free from the usual burdens of voting... arising from life s vagaries. Crawford, 553 U.S. at 197 (Stevens, J., announcing the judgment of the Court). Mistakes by election officials, which the District Court itself recognizes as inevitable, are precisely such vagaries. (ECF 67 at 42.) Reversal is warranted. ARGUMENT I. THE DISTRICT COURT S ANALYSIS OF THE INJUNCTION FACTORS VIOLATES OHIO AND FEDERAL LAW. The District Court s injunction must be reversed, first and foremost, because it rests on a likelihood of success determination that violates state and federal law. The District Court s order also warrants reversal because its analysis of the remaining injunction factors is deficient under Circuit precedent. A. The District Court s Merits Analysis Is Premised on a Misreading of the Relevant Ohio Statutes. The District Court s entire injunction analysis rests on the premise that poll workers bear ultimate responsibility for ensuring that a voter casts his ballot in compliance with the State s precinct and affirmation requirements. (R.E. 67 at 8.) As the State and Voter Appellants attempted to explain below, Ohio law does not support that conclusion. They explained, among other things, that the Ohio Code provisions the Ohio Supreme Court addressed in State ex rel. Painter v. Brunner, 128 Ohio St.3d 17, (Ohio 2011), emphasize the individual voter s 24

33 Case: Document: Filed: 09/14/2012 Page: 33 responsibility to comply with the ballot requirements at issue here). (R.E at 7-8); 3 (see also R.E. 28 at 11, (distinguishing the role of poll-worker error under the Ohio statutes from situations in which state election officials, by deliberate and affirmative act, cause voters to cast invalid ballots that they later refuse to count, and explaining that Plaintiffs challenge to Ohio s treatment of improperly verified ballots rests on facts that have been superseded by the Secretary of State s Directives and is wrong about what Ohio law requires ).) The District Court did not engage any of these points in rejecting the State s interpretation of Ohio law. This error is the first ground that warrants reversal of the injunction. The Proposed Voter Intervenors submit that Ohio law clearly does not support the District Court s premise that the Ohio legislature vested poll workers with compliance duties that give voters a constitutional right to have the State count otherwise unlawful ballots simply because their defects may be attributable to a poll worker s mistake. But even if the law were ambiguous on this 3 For example, Ohio Rev. Code requires each individual casting a provisional ballot to execute a written affirmation stating that he or she understand[s] that... if the board of elections determines the individual is not a resident of the precinct in which the ballot was cast, the provisional ballot will not be counted. Code (B)(4)(a)(ii) declares that, if the board determines that the individual named on the affirmation is not eligible to cast a ballot in the precinct or for the election in which the individual cast the provisional ballot, the provisional ballot envelope shall not be opened, and the ballot shall not be counted. And Code (A)(1) prohibits any person from voting or attempting to vote in any election in a precinct in which that person is not a legally qualified elector. 25

34 Case: Document: Filed: 09/14/2012 Page: 34 point, the District Court should have interpreted it in the manner the State and Voter Appellants urged to avoid the constitutional concerns Plaintiffs alleged, and that the District Court s decision in their favor actually creates. See, e.g., Nat l Fed. of Indep. Businesses v. Sebelius, 132 S.Ct (2012) ( every reasonable construction must be resorted to, in order to save a statute from unconstitutionality ) (citation omitted). The District Court s premise that Ohio law makes poll workers responsible for compliance with the precinct and affirmation provisions at issue here drives its conclusion that the State must either eliminate such error in its elections (a result the District Court concedes is impossible, (R.E. 67 at 42)), or require state officials to try to ferret out which ballot errors are caused by poll-worker error and treat those ballots differently than ballots infected by errors attributable to other sources. But because errors by state election officials are inevitable, (R.E. 67 at 42), the District Court s injunction simply perpetuates the problem it purports to cure. It requires election officials to pick and choose which facially defective ballots resulted from poll-worker error, and then to count (i.e., excuse the ballots disqualifying defects) on this basis. As noted, election-official errors in divining which defective ballots resulted from poll-worker mistakes can, and undoubtedly will, result in counting ballots miscast due to other errors, thereby unconstitutionally diluting legitimate votes 26

35 Case: Document: Filed: 09/14/2012 Page: 35 even on the District Court s view of the law. Further, and as the District Court acknowledged, counting all portions of ballots miscast due to poll-worker error would require the State to count votes in races for which the voter who miscast the ballot is not eligible to participate. Attempting to solve this problem, the District Court s injunction requires state election officials to determine which defective ballots were due to poll-worker error and then remake each such ballot to count only its votes in so-called up ballot races. (R.E. 67, at 56-57); (R.E. 77, Notice of Issuance of Directive , Ex. 1, p. 2.) But again, because human errors are unavoidable, this solution to the vote dilution problem associated with Plaintiffs initial request for injunctive relief will inevitably result in election officials counting some disqualified votes in down-ballot races. If the District Court is correct that voters are, at least in Ohio, constitutionally entitled to exercise the franchise unsullied by election worker error, the District Court s injunction gives the Proposed Voter Intervenors and Appellants a ready-made constitutional challenge to the District Court s ruling. This situation could have been avoided by a proper, or at least saving, construction of Ohio law that does not attach constitutional significance to one of the vagaries of life (inevitable human error in elections) that the Supreme Court 27