Case: 1:10-cv SJD Doc #: 9 Filed: 09/15/10 Page: 1 of 12 PAGEID #: 117

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1 Case 110-cv SJD Doc # 9 Filed 09/15/10 Page 1 of 12 PAGEID # 117 IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION RALPH VANZANT, et al., vs. Plaintiffs, JENNIFER BRUNNER OHIO SECRETARY OF STATE, Defendant. Case No. 110-cv-596 Judge Susan J. Dlott REPLY IN SUPPORT OF MOTION OF PLAINTIFFS RALPH VANZANT, NICOLE BECKWITH, CHARLES SANDERS, AND THOMAS RUPP FOR A TEMPORARY RESTRAINING ORDER AND A PRELIMINARY INJUNCTION I. INTRODUCTION Secretary Brunner states in her memorandum in opposition The decision by some county boards of elections to pay the postage for voters to submit absentee ballots and/or applications in no way disenfranchises voters, nor does it implicate any constitutional protections. Interestingly though, just over a year ago, Secretary Brunner took the exact opposition position in a June 8, 2009 communication to the Franklin County Board of Elections in response to a request to break a tie vote on whether the Franklin County Board of Elections should seek additional funding for the mailing of applications for absent voter s ballots to all eligible electors in Franklin County for the August 4, 2009 special election I have significant legal concern about equal protection considerations, at least with regard to the Columbus income tax issue. The City of Columbus overlaps into six precincts in Fairfield County and four precincts in Delaware County. The Delaware County Board of Elections and the Fairfield County Board of Elections have not been

2 Case 110-cv SJD Doc # 9 Filed 09/15/10 Page 2 of 12 PAGEID # 118 appropriated any funds to mail absentee ballot applications to all eligible electors for the special election, and neither board is contemplating mailing absentee ballot applications to all eligible electors. Ohio law does not require such a mailing. If the Franklin County Board of Elections mails absentee ballot applications to all eligible electors but the Delaware and Fairfield County Boards of Elections do not, then the electors of Franklin County are being given an advantage not enjoyed by the electors of Delaware and Fairfield Counties in the same election on the same issue. The Ohio Supreme Court has cautioned elections officials against unequal treatment of voters in different counties in the same election. State ex rel. Skaggs v. Brunner, 120 Ohio St.3d 506, 2008-Ohio-6333, at A copy of that letter is attached as Exhibit A. (emphasis added). Secretary Brunner makes an about face and apparently now sees no problem with county boards of elections giving an advantage not enjoyed by electors in other counties in the same election on the same issues. Moreover, though she relied upon the case of State ex rel. Skaggs v. Brunner in her letter to the Franklin County Board of Elections, she considers Plaintiffs reliance on this case misplaced. The positions taken by Secretary Brunner in her memorandum in opposition are disingenuous at best. Secretary Brunner s response is largely based on the argument that no Ohio voter is being deprived of the right to vote, and, thus, Ohio s unequal system of voting by absent voter s ballots does not violate the Equal Protection Clause. It is not simply the right to vote that is constitutionally protected, but the right to participate equally in elections as well. Moreover, while Plaintiffs admit that unavoidable inequalities in treatment of voters do not necessarily violate equal protection, the inequalities in this case are far from unavoidable. Finally, the difficulty some county boards of elections may face if Plaintiffs obtain the requested relief to fix the problems with Ohio s unequal system of voting by absent voter s 2

3 Case 110-cv SJD Doc # 9 Filed 09/15/10 Page 3 of 12 PAGEID # 119 ballots is not a valid justification for the continued violation of the constitutional rights of Ohio s electors, and the irreparable harm that will be caused if such system is not corrected. II. LAW AND ARGUMENT A. Plaintiffs Are Likely To Succeed On Their Claim That Ohio s Unequal System Of Voting By Absent Voter s Ballot Violates The Equal Protection Clause. 1. It Is Not Just The Right To Vote That Is Constitutionally Protected, But The Right To Participate Equally In All Elections. The crux of Secretary Brunner s argument is that Ohio s early voting statute does not disenfranchise anyone, and, therefore, it does not violate any constitutional rights. Memo in Opp. at 10. It is not merely the deprivation of the right to vote, but the deprivation of the right to participate equally in all elections that violates the Equal Protection Clause. See Dunn v. Blumstein, 405 U.S. 330, 336 (1972). Thus, even if Plaintiffs will not be disenfranchised by Ohio s unequal system related to absent voter s ballots, their constitutional rights will still be violated if they are subject to burdens in casting their vote that citizens of other counties in Ohio are not. In League of Women Voters v. Blackwell, the Northern District of Ohio stated that [i]naction that diminishes the right to vote equally may be as actionable as direct and overt acts treating the franchise unequally. 432 F. Supp. 2d 723, 728 (N.D. Ohio 2005) (emphasis added). Contrary to Secretary Brunner s assertions, it was not just the disenfranchisement of voters who chose not to wait in long polling lines, and, thus, lost their opportunity to vote, that created potential equal 3

4 Case 110-cv SJD Doc # 9 Filed 09/15/10 Page 4 of 12 PAGEID # 120 protection violations in that case. The burden of some voters having to wait in much longer lines than others before casting their vote also gave rise to a potential equal protection claim. Even if a voter was not technically disenfranchised because he or she waited the ten hours and still voted, such elector may still have been deprived of his or her constitutional right to participate equally in the election because the system severely burdened the exercise of that right depending on where the elector lived. League of Women Voters v. Brunner, 548 F.33d 463, (6th Cir. 2008). Moreover, the Ohio Supreme Court has held that the same rules must apply to each voter of every county in the state. See State ex rel. Skaggs v. Brunner, 120 Ohio St.3d 506, 2008-Ohio-6333, at 58. Secretary Brunner states that Plaintiffs reliance on State ex rel. Skaggs is misplaced. Memo in Opp. at 9. Yet, just over a year ago, Secretary Brunner issued a letter to the Franklin County Board of Elections citing the very same case for the very same proposition that equal protection concerns are raised when one county sends applications for absent voter s ballots to all eligible electors while others do not. In May, 2009, the Franklin County Board of Elections had a tie vote on whether to petition the county commissioners for additional funding to mail applications to all electors in Franklin County for a special election on August 4, Pursuant to R.C (X), Secretary Brunner decides all ties in the county boards of elections. One of the issues on the ballot for the August 4, 2009 special election was a potential increase in the income tax for the City of Columbus. Citing 4

5 Case 110-cv SJD Doc # 9 Filed 09/15/10 Page 5 of 12 PAGEID # 121 State ex rel. Skaggs, Secretary Brunner voiced concerns that Franklin County s mailing of applications to all electors raised equal protection considerations because the City of Columbus overlaps into six precincts in Fairfield County and four precincts in Delaware County, neither of which were contemplating mailing absentee ballot applications to all electors. See Exhibit A. Specifically, Secretary Brunner stated The Ohio Supreme court has cautioned elections officials against unequal treatment of voters in different counties in the same election. State ex rel. Skaggs v. Brunner, 120 Ohio St.3d 506, 2008-Ohio-6333, at Id. at 3. Now, Secretary Brunner criticizes Plaintiffs for relying on the very same case, on the very same issue. Instead of relying on precedent from the Ohio Supreme Court and federal courts in Ohio, Secretary Brunner asks the Court to rely on a case from the Northern District of Illinois applying Illinois, and not Ohio law. As Secretary Brunner admits, the court s decision in that case was based in large part on the fact that the Illinois legislature made a conscious choice to leave significant decision making authority with local authorities, allowing each voting district to tailor its approach to early voting in a manner consistent with its unique demands and abilities. Gustafson v. Illinois State Bd. Of Elections, 2007 U.S. Dist. LEXIS 75209, at *33 (N.D. Ill. Sept. 30, 2007). The Ohio Revised Code, however, does not leave significant decision making authority with the local authorities related to absent voter s ballots like in Gustafson. Rather, as Secretary Brunner also recognizes, the Ohio Revised Code 5

6 Case 110-cv SJD Doc # 9 Filed 09/15/10 Page 6 of 12 PAGEID # 122 establishes a clear process for voting by absent voter s ballot. A person who wishes to vote by absent voter s ballot must make a written request to the county director of the board of elections for an absent voter s ballot. Memo in Opp. at 2 (citing R.C ). Upon receipt of the application, the director must deliver the ballot by mail or hand delivery. Id. (citing R.C ). Then, the elector returns the marked ballot by mail with the postage prepaid or by hand delivery to the board of elections. Id. (citing R.C ). Nowhere in this statutory framework is the discretion that was left to the local authorities in Gustafson. Thus, certain Ohio counties unequal departure from the statutory framework violates the Equal Protection Clause of the Fourteenth Amendment, and Secretary Brunner, as chief election officer, has an obligation to remedy those violations. The Ohio Supreme Court, federal courts in Ohio, and the United States Supreme Court have spoken electors have a constitutionally protected right to participate in elections on an equal basis. Ohio s system of voting by absent voter s ballot whereby the process and procedures differ from county to county violates that right. 2. The Inequalities With Ohio s System Of Voting By Absent Voter s Ballot Are Not Unavoidable. Secretary Brunner also argues that the issues related to Ohio s unequal system of voting by absent voter s ballot are unavoidable inequalities in the election process that do not violate equal protection. Memo in Opp. at 1-2. Secretary Brunner argues that elections would be impossible if courts demanded absolute parity citing as an example that [c]entralized polling places would be unlawful, 6

7 Case 110-cv SJD Doc # 9 Filed 09/15/10 Page 7 of 12 PAGEID # 123 because some voters live within walking distance of the polls while others have to travel by car many miles, possibly through heavy traffic. Memo in Opp. at 15. Plaintiffs admit that it would be impossible to have all polling places in a location central and convenient to all electors. Because Secretary Brunner cannot control the differences in mileage electors have to drive to polling stations, or the traffic electors experience, such inequalities are admittedly unavoidable and do not violate equal protection. In this case, however, Secretary Brunner does have control over whether counties mail applications to all electors, pay for postage to return those applications, and pay for postage to return the absent voter s ballot. She can and should issue directives preventing counties from undertaking actions that cause unequal treatment of Ohio electors depending on the county in which the elector resides. Contrary to Secretary Brunner s assertion, the Constitution does provide for protection against inequalities that are avoidable. As chief election officer, Secretary Brunner has a duty to take action against such avoidable inequalities. B. Plaintiffs Are Also Likely To Succeed On Their Claim That Ohio s System Of Voting By Absent Voter s Ballot Violates Due Process Because It Dilutes The Vote In Ohio s Rural Areas. Secretary Brunner argues that Ohio s unequal system of voting by absent voter s ballot does not violate due process because there is no dispute regarding the validity of the ballots, or whether an individual s absent voter s ballot will be counted. Memo in Opp. at Secretary Brunner misses the point. Plaintiffs are not arguing their absent voter s ballot will not be counted. By allowing the counties where Ohio s largest cities reside to mail applications to all eligible 7

8 Case 110-cv SJD Doc # 9 Filed 09/15/10 Page 8 of 12 PAGEID # 124 electors, some of which will also pre-pay the postage for either the application, the ballot, or both, when counties in rural areas that cannot afford to undertake such actions will not, Secretary Brunner is permitting an election that is skewed in favor of the residents of Ohio s largest cities. Secretary Brunner does not deny that mailing applications to all eligible electors, paying postage for returning those applications, and paying postage for returning the ballot increases voter turnout in large percentages in those counties. While increased voter turnout is certainly a noble goal, it cannot be achieved through means that create a fundamentally unfair election statewide. Ohio s current system of voting by absent voter s ballots places a much larger emphasis on the opinions of voters in cities versus Ohio s expansive rural areas because there is likely to be a much higher percentage of turnout in areas mailing applications, and pre-paying postage for applications and ballots for all electors. Such a system dilutes the votes by electors in rural areas who do not receive the same privileges. If Secretary Brunner has an interest in increasing voter turnout, it needs to be achieved in a manner that focuses on increasing voter turnout statewide, not just in the counties that are home to Ohio s largest cities. C. Because Ohio s Current System Of Voting By Absent Voter s Ballot Deprives Plaintiffs Of Their Constitutional Rights, Any Deprivation Of Those Rights Constitutes Irreparable Harm. Secretary Brunner argues that irreparable harm in this case is speculative. Memo in Opp. at 13. Yet, the Sixth Circuit has held that the denial of an injunction will cause irreparable harm if the claim is based upon any constitutional right. Overstreet v. Lexington-Fayette Urban County Gov t, 305 F.3d 566, 578 (6th Cir. 8

9 Case 110-cv SJD Doc # 9 Filed 09/15/10 Page 9 of 12 PAGEID # ). Again though, Secretary Brunner argues that Plaintiffs have not established how their right to vote has been impaired or threatened. As discussed above, it is not just the right to vote, but the right to vote equally, and to participate in all elections equally, that is also constitutionally protected. If this Court finds Plaintiffs constitutional rights have been violated, it must find that Plaintiffs will suffer irreparable harm if injunctive relief is not granted. No evidence is necessary to demonstrate irreparable harm once it is established that Plaintiffs constitutional rights are in jeopardy. D. The Difficulty Some Counties May Experience In Adopting Procedures Consistent With All Other Counties Is Not A Justification For Depriving Plaintiffs Of Their Constitutionally Protected Rights. Plaintiffs concede that it will be difficult to equalize the treatment of all voters related to the applications for absent voter s ballots for the November 2, 2010 election given that Franklin County has already mailed applications to all eligible electors within that county. Plaintiffs do not seek relief just for this election, however, but also for future elections. Thus, the Court can and should issue an injunction requiring Secretary Brunner to issue a permanent directive that for all future elections, no county can mail applications to all eligible electors, unless all Ohio counties are mailing applications to all electors. The equal protection concerns with counties pre-paying the postage for the return of absent voter s ballots, however, can still be corrected for this election. Such ballots will not be mailed out until 35 days prior to the election. Moreover, compelling Secretary Brunner to issue directives on the pre-payment of postage for the absent voter s ballots will not place an undue burden on the county boards of 9

10 Case 110-cv SJD Doc # 9 Filed 09/15/10 Page 10 of 12 PAGEID # 126 elections. Plaintiffs dispute that the directives requested will impose tremendous costs on counties that barely have money to conduct the election. Secretary Brunner can simply issue a directive that no county should pre-pay the postage, costing these counties nothing. Secretary Brunner complains that such a directive would make the poorest or least innovative county the standard to which every county must conform. That is exactly, however, what the Constitution requires. Unless and until the Ohio legislature provides a funded mandate that all counties mail applications to all electors, or that all counties pre-pay the postage to return the applications and ballots, one county should not be permitted to undertake such actions merely because it can afford it. The burdens an elector experiences in voting by absent voter s ballot should not be dependent upon the wealth of the county in which the elector resides. This Court should not deny Plaintiffs the requested relief merely because it cannot make the equal treatment of voters perfect for this election, or because it may make the job of the county boards of elections more difficult. Rather, this Court should grant the relief requested by Plaintiffs to shift Ohio s process of voting by absent voter s ballot towards equality for this election, and to entirely correct it for future elections. III. CONCLUSION For all the reasons set forth above, this Court should grant Plaintiffs Motion for a Temporary Restraining Order and a Preliminary Injunction. 10

11 Case 110-cv SJD Doc # 9 Filed 09/15/10 Page 11 of 12 PAGEID # 127 Respectfully submitted, /s/ Robert J. Tucker Robert J. Tucker ( ) Trial Counsel Baker & Hostetler LLP 65 East State Street, Suite 2100 Columbus, Ohio (614) telephone (614) fax rtucker@bakerlaw.com Counsel for Plaintiffs Of Counsel John H. Burtch ( ) Baker & Hostetler LLP 65 East State Street, Suite 2100 Columbus, Ohio (614) telephone (614) fax jburtch@bakerlaw.com 11

12 Case 110-cv SJD Doc # 9 Filed 09/15/10 Page 12 of 12 PAGEID # 128 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was served on all parties via the Court s ECF system this 15 th day of September, /s/ Robert J. Tucker Robert J. Tucker ( ) 12