No. 12- In The Supreme Court of the United States

Transcription

1 No. 12- In The Supreme Court of the United States Jon Husted, Ohio Secretary of State; and Mike DeWine, Ohio Attorney General, Applicants v. Obama for America; Democratic National Committee; and Ohio Democratic Party, Respondents On Petition for Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit APPENDIX To the Honorable Elena Kagan Associate Justice of the Supreme Court of the United States and Circuit Justice for the Sixth Circuit MICHAEL DEWINE Ohio Attorney General William S. Consovoy* Thomas R. McCarthy Brendan J. Morrissey J. Michael Connolly Wiley Rein LLP 1776 K Street NW Washington, D.C Tel: (202) wconsovoy@wileyrein.com Special Counsel for Petitioner Ohio Secretary of State Jon Husted *Counsel of Record Stephen P. Carney* Richard N. Coglianese Michael J. Hendershot Assistant Attorneys General 30 East Broad Street, 16th Floor Columbus, OH Tel: (614) stephen.carney@ohioattorneygeneral.gov Counsel for Petitioner Ohio Attorney General Michael DeWine Date: October 9, 2012

2 Case: Document: Filed: 10/05/2012 Page: 1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 12a0356p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT OBAMA FOR AMERICA; DEMOCRATIC NATIONAL COMMITTEE; OHIO DEMOCRATIC PARTY, Plaintiffs-Appellees, v. JON HUSTED, Ohio Secretary of State; MIKE DEWINE, Ohio Attorney General, Defendants-Appellants ( ), NATIONAL GUARD ASSOCIATION OF THE UNITED STATES, et al. Intervenor Defendants-Appellants ( ). X >, N Nos /4076 Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 2:12-cv Peter C. Economus, District Judge. Decided and Filed: October 5, 2012 Before: CLAY and WHITE, Circuit Judges; HOOD, District Judge. * COUNSEL ON BRIEF: William S. Consovoy, Elbert Lin, Brendan J. Morrissey, J. Michael Connolly, WILEY REIN LLP, Washington, D.C., Richard N. Coglianese, Michael J. Schuler, Lindsay M. Sestile, OHIO ATTORNEY GENERAL S OFFICE, Columbus, Ohio, for Appellants in James M. Dickerson, BINGHAM GREENEBAUM DOLL LLP, Cincinnati, Ohio, for Appellants in Donald J. McTigue, Mark A. McGinnis, J. Corey Colombo, McTIGUE & McGINNIS LLC, Columbus, Ohio, Robert F. Bauer, PERKINS COIE, Washington, D.C., Jennifer Katzman, OBAMA FOR AMERICA, Chicago, Illinois, for Appellees. Lawrence J. Joseph, Washington, D.C., Jay Alan Sekulow, AMERICAN CENTER FOR LAW & JUSTICE, Washington, D.C., Joseph E. Sandler, Elizabeth F. Getman, SANDLER, REIFF, YOUNG & LAMB, P.C., Washington, D.C., Paul J. Gains, MAHONING COUNTY BOARD OF COUNTY * The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting by designation. 1 1a

3 Case: Document: Filed: 10/05/2012 Page: 2 Nos /4076 Obama for America, et al. v. Jon Husted, et al. Page 2 COMMISSIONERS, Youngstown, Ohio, Stephen D. Hartman, KERGER & HARTMAN, LLC, Toledo, Ohio, KATHLEEN M. CLYDE, Kent, Ohio, for Amici Curiae. CLAY, J., delivered the opinion of the court, in which HOOD, D. J., joined. WHITE, J. (pp ), delivered a separate opinion concurring in part and dissenting in part. OPINION CLAY, Circuit Judge. Defendants Jon Husted, the Secretary of State of Ohio, and Mike DeWine, the Attorney General of Ohio (collectively the State ), joined by Intervenors representing numerous military service associations ( Intervenors ), appeal from the district court s order granting Plaintiffs motion for a preliminary injunction. The district court enjoined the State from enforcing Ohio Rev. Code to the extent that it prevents some Ohio voters from casting in-person early ballots during the three days before the November 2012 election on the basis that the statute violates the Equal Protection Clause of the Fourteenth Amendment. For the reasons set forth below, we AFFIRM the district court s order granting the preliminary injunction. I. Procedural History BACKGROUND On July 17, 2012, Plaintiffs Obama for America, the Democratic National Committee, and the Ohio Democratic Party filed a complaint in district court against Jon Husted, in his official capacity as Secretary of State of Ohio, and Mike DeWine, in his official capacity as Attorney General of Ohio. Plaintiffs alleged that Ohio Rev. Code was unconstitutional insofar as it imposes on non-military voters a deadline of 6:00 p.m. on the Friday before Election Day for in-person early voting. 1 On the same 1 All references to the election or Election Day refer to the November 6, 2012 election. The threeday period prior to Election Day specifically refers to Saturday, November 3, 2012; Sunday, November 4, 2012; and Monday, November 5, Military and overseas voters are those voters identified in the 2a

4 Case: Document: Filed: 10/05/2012 Page: 3 Nos /4076 Obama for America, et al. v. Jon Husted, et al. Page 3 day, Plaintiffs moved for a preliminary injunction preventing the statute s enforcement. They argued that the relevant statutory provisions burden the fundamental right to vote but are not necessary to any sufficiently weighty state interest. (R. 2, at 2.) On August 1, 2012, numerous military service associations filed a motion to intervene, and the district court granted the motion. The State and Intervenors opposed Plaintiffs motion for a preliminary injunction. They argued that the State s interest in providing military voters with added in-person early voting time and the burden on local boards of elections of providing that same extra time for all voters justified imposing a different deadline on military and overseas voters than all other voters. The district court conducted a hearing on Plaintiffs motion on August 15, The parties filed numerous exhibits, including legislative history, declarations of career military officers and voting experts, and statistical and demographic studies by various governmental agencies and non-governmental organizations. On August 31, 2012, the district court issued an opinion and order granting Plaintiffs motion for a preliminary injunction. The district court concluded that violated the Equal Protection Clause to the extent that it set a different in-person early voting deadline for non-military voters because the State s interests are insufficiently weighty to justify the injury to Plaintiffs. F. Supp. 2d, No. 2:12-cv-00636, 2012 WL , at *10 (S.D. Ohio Aug. 31, 2012). The district court enjoined the enforcement of and ordered that in-person early voting be available to non-military voters on the same terms as before the enactment of Amended Substitute House Bill 224 and Substitute Senate Bill 295. Id. at The preliminary injunction ensures that all Ohio voters military, overseas, and non-military are afforded the same opportunity for in-person early voting that was available to them prior to the enactment of federal Uniformed and Overseas Citizens Absentee Voting Act of 1986, 42 U.S.C. 1973ff ( UOCAVA ), as amended by the Military and Overseas Voter Empowerment Act, Pub. L , 123 Stat (2009) ( MOVE Act ), and corresponding sections of the Ohio Election Code, Ohio Rev. Code Nonmilitary voters are all other eligible voters. 3a

5 Case: Document: Filed: 10/05/2012 Page: 4 Nos /4076 Obama for America, et al. v. Jon Husted, et al. Page 4 The State and Intervenors now appeal the district court s order granting a preliminary injunction. On November 12, 2012, the district court denied the State s motion to stay its order pending appeal, and the preliminary injunction remains in effect. II. Facts A. In-Person Early Voting in Ohio Ohio introduced in-person early voting largely in response to the myriad problems faced by voters during the 2004 election. During that election, Ohio voters faced long lines and wait-times that, at some polling places, stretched into the early morning of the following day. To prevent similar problems from disenfranchising voters in the future and to ease the strain of accommodating all voters on a single day, the State established no-fault absentee voting in October The new rules eliminated the need for absentee voters to have an excuse for not voting on election day. See 2005 Ohio Laws 40 (Sub. H.B. 234). After the creation of in-person early voting, any registered voter could cast an absentee ballot at the appropriate board of elections office through the Monday before the election. See id. (amending Ohio Rev. Code ). The evidence considered by the district court showed that a large number of Ohio voters chose to utilize the new early voting procedures in elections from 2006 through Early voting peaked during the 2008 election, when approximately 1.7 million Ohioans cast their ballots before election day, amounting to 20.7% of registered voters and 29.7% of the total votes cast. In Ohio s twelve largest counties, approximately 340,000 voters, or about 9% of the total votes cast in those counties, chose to vote early at a local board of elections office. Using data from seven of Ohio s largest counties, one study projected that, in 2008, approximately 105,000 Ohioans cast their ballots in person during the final three days before the election. In 2010, approximately 1 million Ohioans voted early, and 17.8% of them chose to cast their ballots in person. In a poll conducted after the 2010 election, 29.6% of early voters reported voting within one week of election day. 4a

6 Case: Document: Filed: 10/05/2012 Page: 5 Nos /4076 Obama for America, et al. v. Jon Husted, et al. Page 5 Voters who chose to cast their ballots early tended to be members of different demographic groups than those who voted on election day. Early voters were more likely than election-day voters to be women, older, and of lower income and education attainment. (R , Pls. Ex. 27, at 1.) Data from Cuyahoga and Franklin Counties suggests that early voters were disproportionately African-American and that a large majority of early in-person votes (82% in Franklin County) were cast after hours on weekdays, on the weekend, or on the Monday before the election. B. Legislative Changes to In-Person Early Voting On July 1, 2011, Ohio Governor John Kasich signed Amended Substitute House Bill 194, an omnibus bill that made broad changes to Ohio election law. Among other things, the Ohio legislature apparently intended to change the deadlines for in-person early voting from the Monday before the election to 6:00 p.m. on the Friday before the election. Instead, H.B. 194 created two separate and contradictory deadlines: one on Friday and one on Monday. For non-military voters, Ohio Rev. Code contained the former Monday deadline, but an amended imposed the new Friday deadline. Military and overseas voters found themselves in much the same position, with containing the former deadline, and an amended containing the new one. In an attempt to correct its mistake, the Ohio General Assembly passed Amended Substitute House Bill 224, which became effective on October 27, H.B. 224 fixed the inconsistent deadlines in and , changing the deadlines for all voters to 6:00 p.m. on the Friday before the election. Before the technical corrections in H.B. 224 could take effect, however, a petition with more than 300,000 signatures was filed to put the omnibus election law, H.B. 194, to a referendum. The referendum petition was certified by the Secretary of State on December 9, 2011, and pursuant to the Ohio Constitution, the implementation of H.B. 194 was suspended for the 2012 election cycle. On May 8, 2012, the General Assembly repealed the then-suspended H.B. 194 through Substitute Senate Bill 295. However, neither the organizers of the referendum 5a

7 Case: Document: Filed: 10/05/2012 Page: 6 Nos /4076 Obama for America, et al. v. Jon Husted, et al. Page 6 petition nor the Ohio legislature thought to attack or repeal the bill containing the technical changes, H.B. 224, which remained in effect. Therefore, even though the original bill, H.B. 194, was repealed, the technical changes contained in H.B. 224 remained in place, and Ohio voters were still left with inconsistent deadlines. Nonmilitary voters could cast ballots in-person until 6:00 p.m. on the Friday before the election. But military and overseas voters had two deadlines: Friday at 6:00 p.m. pursuant to , and the close of the polls on election day pursuant to In order to correct this confusion, Defendant Husted construed the statute to apply the more generous deadline contained in to military and overseas voters. Attempts by local boards of elections to provide in-person early voting to non-military voters through the Monday before the election were denied by the Secretary of State on the grounds that the statute does not permit it. On August 15, 2012, Defendant Husted issued Directive , instructing the local boards of election that they were to maintain regular business hours between October 2, 2012 and November 2, This directive eliminated the local boards discretion to be open on weekends during that period. Between October 2, 2012 and October 19, 2012, the boards must close at 5:00 p.m. During the last two weeks of the election, the boards will remain open until 7:00 p.m. but may not remain open afterwards or on the weekends. The directive does not address office hours on the final three-day period before Election Day, when, according to the statute, only military and overseas voters can cast ballots in person. DISCUSSION I. Standard of Review We review a district court s grant of a preliminary injunction for an abuse of discretion. Chabad of S. Ohio & Congregation Lubavitch v. City of Cincinnati, 363 F.3d 427, 432 (6th Cir. 2004). While the ultimate decision to grant or deny a preliminary injunction is reviewed for an abuse of discretion, we review the district court s legal conclusions de novo and its factual findings for clear error. Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219, 233 (6th Cir. 2011). This standard of review is highly 6a

8 Case: Document: Filed: 10/05/2012 Page: 7 Nos /4076 Obama for America, et al. v. Jon Husted, et al. Page 7 deferential to the district court s decision. Id. (quoting Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 541 (6th Cir. 2007)). The injunction will seldom be disturbed unless the district court relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard. Mascio v. Pub. Emps. Ret. Sys. of Ohio, 160 F.3d 310, 312 (6th Cir. 1998). A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of the equities tips in his favor, and that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The district court s determination that a plaintiff is likely to succeed on the merits is a question of law that we review de novo. Hunter, 635 F.3d at 233. II. Likelihood of Succeed on the Merits A. Equal Protection in the Voting Context The right to vote is a precious and fundamental right. Harper v. Va. State Bd. of Elections, 383 U.S. 663, 670 (1966). Other rights, even the most basic, are illusory if the right to vote is undermined. Wesburry v. Sanders, 376 U.S. 1, 17 (1964); see also Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) (finding that the right to vote is preservative of all rights ). The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. League of Women Voters v. Brunner, 548 F.3d 463, 477 (6th Cir. 2008) (quoting Bush v. Gore, 531 U.S. 98, 104 (2000)). [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 (1972). Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person s vote over that of another. Bush, 531 U.S. at ; see also Wesburry, 376 U.S. at 17 ( Our Constitution leaves no room for classification of people in a way that unnecessarily abridges [the right to vote.] ). 7a

9 Case: Document: Filed: 10/05/2012 Page: 8 Nos /4076 Obama for America, et al. v. Jon Husted, et al. Page 8 The Equal Protection Clause applies when a state either classifies voters in disparate ways, see Bush, 531 U.S. at (arbitrary and disparate treatment of votes violates equal protection), or places restrictions on the right to vote, see League of Women Voters, 548 F.3d at 478 (voting system that burdens the exercise of the right to vote violates equal protection). The precise character of the state s action and the nature of the burden on voters will determine the appropriate equal protection standard. See Biener v. Cailo, 361 F.3d 206, 214 (3d Cir. 2004) ( The scrutiny test depends on the [regulation s] effect on [the plaintiff s] rights. ). If a plaintiff alleges only that a state treated him or her differently than similarly situated voters, without a corresponding burden on the fundamental right to vote, a straightforward rational basis standard of review should be used. See McDonald v. Bd. of Election Comm rs, 394 U.S. 802, (1969) (applying rational basis to a state statute that prohibited plaintiffs access to absentee ballots where no burden on the right to vote was shown); Biener, 361 F.3d at (applying rational basis where there was no showing of an infringement on the fundamental right to vote ). On the other extreme, when a state s classification severely burdens the fundamental right to vote, as with poll taxes, strict scrutiny is the appropriate standard. Burdick v. Takushi, 504 U.S. 428, 434 (1992); see also Harper, 383 U.S. at 670 ( We have long been mindful that where fundamental rights and liberties are asserted under the Equal Protection Clause, classifications which might invade or restrain them must be closely scrutinized and carefully confined. ). Most cases fall in between these two extremes. When a plaintiff alleges that a state has burdened voting rights through the disparate treatment of voters, we review the claim using the flexible standard outlined in Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992). See Hunter, 635 F.3d at 238 (applying Anderson-Burdick balancing in an equal protection challenge to the counting of provisional ballots). Although Anderson and Burdick were both ballot-access cases, the Supreme Court has confirmed their vitality in a much broader range of voting rights contexts. See Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 204 (Scalia, J., 8a

10 Case: Document: Filed: 10/05/2012 Page: 9 Nos /4076 Obama for America, et al. v. Jon Husted, et al. Page 9 concurring.) ( To evaluate a law respecting the right to vote whether it governs voter qualifications, candidate selection, or the voting process we use the approach set out in Burdick.... ). The Burdick Court stated the standard as follows: A court considering a challenge to a state election law must weigh the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate against the precise interests put forward by the State as justifications for the burden imposed by its rule, taking into consideration the extent to which those interests make it necessary to burden the plaintiffs rights. Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789)). This standard is sufficiently flexible to accommodate the complexities of state election regulations while also protecting the fundamental importance of the right to vote. There is no litmus test to separate valid from invalid voting regulations; courts must weigh the burden on voters against the state s asserted justifications and make the hard judgment that our adversary system demands. Crawford, 553 U.S. at 190 (Stevens, J., announcing the judgment of the Court). The district court applied the Anderson-Burdick standard and ultimately concluded that the justifications proffered by the State were insufficient to outweigh the burden on Plaintiffs voting rights. Instead of the Anderson-Burdick standard, the State and Intervenors urge us to apply a rational basis standard of review to the early voting restriction at issue. Because Plaintiffs complaint alleges a straightforward equal protection violation, they argue, a straightforward equal protection analysis should follow. However, when a state regulation is found to treat voters differently in a way that burdens the fundamental right to vote, the Anderson-Burdick standard applies. See Hunter, 635 F.3d at 238; see also Clements v. Fashing, 457 U.S. 957, 965 (1982) (rejecting the assertion that traditional equal protection principles should automatically apply in the voting rights context without first examining the nature of the interests that are affected and the extent of the burden ). The State and Intervenors argue that the Anderson-Burdick standard is applicable only when a state regulation is alleged to have violated the free association and due 9a

11 Case: Document: Filed: 10/05/2012 Page: 10 Nos /4076 Obama for America, et al. v. Jon Husted, et al. Page 10 process guarantees of the First and Fourteenth Amendments, not when a plaintiff alleges only an equal protection violation. The State seeks to disconnect and isolate these areas of constitutional law as they apply to voting rights, but its approach would create inflexible doctrinal silos. The Supreme Court in Anderson explicitly imported the analysis used in equal protection cases to evaluate voting rights challenges brought under the First Amendment, see Anderson, 460 U.S. at 786 n.7, thus creating a single standard for evaluating challenges to voting restrictions. 2 The Supreme Court confirmed this approach in Crawford by directly connecting its equal protection voting rights jurisprudence in Harper v. Va. State Bd. of Elections, 383 U.S. 663 (1966), with Anderson and Burdick, and finally applying the standard derived from those cases to a state statute allegedly burdening the right to vote. See Crawford, 553 U.S. 181, Plaintiffs have demonstrated that their right to vote is unjustifiably burdened by the changes in Ohio s early voting regime. 3 The Anderson-Burdick standard therefore applies. The State relies heavily on McDonald v. Bd. of Election Comm rs, 394 U.S. 802 (1969), for the proposition that rational basis is the appropriate standard when a state denies absentee ballots to some citizens and not others. In McDonald, unsentenced Illinois inmates were denied access to absentee ballots because they were not among the categories of voters that were provided those ballots under Illinois law. Id. at 803. The Court applied a rational basis standard of review, reasoning that the state had not classified the inmates based on race or wealth, nor was there any evidence in the record 2 The Anderson Court stated that it based its conclusions directly on the First and Fourteenth Amendments and did not engage in a separate Equal Protection Clause analysis. Anderson, 460 U.S. at 786 n.7. The Court did not need to conduct a separate equal protection analysis because it had already incorporated that analysis into its new flexible standard. The Court continued, We rely, however, on the analysis in a number of our prior election cases resting on the Equal Protection Clause of the Fourteenth Amendment. Id. (citing Williams v. Rhodes, 393 U.S. 23 (1968); Bullock v. Carter, 405 U.S. 134 (1972); Lubin v. Panish, 415 U.S. 709 (1974); Ill. Elections Bd. v. Socialist Workers Party, 440 U.S. 173 (1979)). 3 Plaintiffs complaint alleges that the State s disparate treatment of non-military voters burdens their fundamental right to vote, and that this burden violates equal protection. (See R. 1, Pls. Compl., at 6, 12.) The State would presumably agree that if Plaintiffs had challenged the restriction based solely on the First Amendment, the Anderson-Burdick standard would apply. The State cannot escape that standard by asserting that not only does the restriction burden Plaintiffs right to vote, but it also does so disparately. 10a

12 Case: Document: Filed: 10/05/2012 Page: 11 Nos /4076 Obama for America, et al. v. Jon Husted, et al. Page 11 to indicate that the Illinois statutory scheme has an impact on appellants ability to exercise the fundamental right to vote. Id. at 807. The Court found no fundamental right to receive an absentee ballot as such, and stated, [W]e cannot lightly assume, with nothing in the record to support such an assumption, that Illinois has in fact precluded appellants from voting. Id. at 808. The McDonald plaintiffs failed to make out a claim for heightened scrutiny because they had presented no evidence to support their allegation that they were being prevented from voting. See O Brien v. Skinner, 414 U.S. 524, 529 (1974) ( Essentially the Court s disposition of the claims in McDonald rested on failure of proof. ); Goosby v. Osser, 409 U.S. 512, (finding that McDonald itself suggested a different result if plaintiffs had presented evidence that the state was effectively preventing them from voting). On the contrary, Plaintiffs introduced extensive evidence that a significant number of Ohio voters will in fact be precluded from voting without the additional three days of in-person early voting. (See, e.g., R , Pls. Ex. 28, at 2.) The district court credited statistical studies that estimated approximately 100,000 Ohio voters would choose to vote during the three-day period before Election Day, and that these voters are disproportionately women, older, and of lower income and education attainment WL , at *3. The district court concluded that the burden on Plaintiffs was particularly high because their members, supporters, and constituents represent a large percentage of those who participated in early voting in past elections. Id. at 15. The State did not dispute the evidence presented by Plaintiffs, nor did it offer any evidence to contradict the district court s findings of fact. Id. Plaintiffs did not need to show that they were legally prohibited from voting, but only that burdened voters have few alternate means of access to the ballot. Citizens for Legislative Choice v. Miller, 144 F.3d 916, 921 (6th Cir. 1998) (citing Burdick, 504 U.S. at ). The State argues that the burden on non-military voters is slight because they have ample other means to cast their ballots, including by requesting and mailing an absentee ballot, voting in person prior to the final weekend before Election Day, or on Election Day itself. However, the district court concluded that because early voters have 11a

13 Case: Document: Filed: 10/05/2012 Page: 12 Nos /4076 Obama for America, et al. v. Jon Husted, et al. Page 12 disproportionately lower incomes and less education than election day voters, and because all evening and weekend voting hours prior to the final weekend were eliminated by Directive , thousands of voters who would have voted during those three days will not be able to exercise their right to cast a vote in person WL , at *7. Based on the evidence in the record, this conclusion was not clearly erroneous. Because the district court found that Plaintiffs right to vote was burdened, it properly applied the Anderson-Burdick standard. 4 Therefore, if Plaintiffs can show that the State s burden on their voting rights is not sufficiently justified, they are likely to succeed on their claim that the State has violated the Equal Protection Clause. B. Ohio s Justifications The State offers two justifications for eliminating in-person early voting for nonmilitary voters during the three days before Election Day. First, it asserts that local county boards of elections are too busy preparing for Election Day to accommodate early voters after 6:00 p.m. on the Friday before the election. Second, the State claims that the unique challenges faced by military service members and their families justify maintaining in-person early voting for them but not for other Ohio voters. The State correctly argues that its two justifications are relevant to two separate aspects of the equal protection analysis: the first justification the burden on local boards of elections should be considered in relation to the State s restriction of voting rights, while the second justification the need to accommodate military voters and their families should be considered in relation to the State s disparate treatment of military and non-military voters. See State s Br. 46 n.3. These two strands are part of the same equal protection analysis. If the State merely placed nonsevere, nondiscriminatory restrictions on all voters, the restrictions would survive if they could be sufficiently justified. See Crawford, 553 U.S. at 190 (discussing the application of the Anderson- 4 Intervenors cite to several cases purportedly applying a rational basis standard to similar election regulations, but these cases were either decided before Anderson and Burdick, see, e.g., Prigmore v. Renfro, 356 F. Supp. 427 (N.D. Ala. 1972), or dealt with generally applicable, nondiscriminatory election regulations, see Gustafson v. Ill. State Bd. of Elections, No. 06-C-1159, 2007 WL (N.D. Ill. Sept. 30, 2007). 12a

14 Case: Document: Filed: 10/05/2012 Page: 13 Nos /4076 Obama for America, et al. v. Jon Husted, et al. Page 13 Burdick standard to reasonable, nondiscriminatory restrictions ). On the other hand, if the State merely classified voters disparately but placed no restrictions on their right to vote, the classification would survive if it had a rational basis. See McDonald, 394 U.S. at (applying rational basis review where no burden on the right to vote was shown). However, the State has done both; it has classified voters disparately and has burdened their right to vote. Therefore, both justifications proffered by the State must be examined to determine whether the challenged statutory scheme violates equal protection. We will address each proposed justification in turn. 1. Burden on Local Boards of Elections The State contends that halting in-person early voting at 6:00 p.m. on the Friday before the election is necessary to give local county boards of elections enough time to prepare for Election Day. The State introduced the affidavit of Deputy Assistant Secretary of State Matthew Damschroder, who explained the myriad tasks that the boards must complete during the Saturday, Sunday, and Monday before the election. Among these duties are: (1) validating, scanning, and tabulating absentee ballots that have been cast in-person or received by mail prior to the final weekend, (2) securing all the necessary ballots, instruction cards, registration forms, and other materials for use by voters, (3) ensuring that each polling place has the proper voting equipment, tables, chairs, and signs, (4) ensuring that each polling place is accessible and making any temporary improvements that are necessary, such as installing ramps, (5) preparing the official lists of registered voters, including notations for those voters who have already requested absentee ballots, and (6) handling any last-minute issues that arise, including moving polling places and replacing poll workers who are suddenly unable to serve. (See R. 35-9, Defs. Ex. 8, at 3.) Granted, the list of responsibilities of the boards of elections is long, and the staff and volunteers who prepare for and administer elections undoubtedly have much to accomplish during the final few days before the election. But the State has shown no evidence indicating how this election will be more onerous than the numerous other elections that have been successfully administered in Ohio since early voting was put 13a

15 Case: Document: Filed: 10/05/2012 Page: 14 Nos /4076 Obama for America, et al. v. Jon Husted, et al. Page 14 into place in During that time, the Ohio boards of elections have effectively conducted a presidential election and a gubernatorial election, not to mention many other statewide and local elections, all while simultaneously handling in-person early voting during the three days prior to the election. The State has not shown that any problems arose as a result of the added responsibilities of administering early voting, and in fact, it seems that one of the primary motivations behind instituting early voting was to relieve local boards of the strain caused by all voters casting their ballots on a single day. See League of Women Voters, 548 F.3d at (describing the many problems faced by voters during the November 2004 election in Ohio, including extremely long lines and wait-times on Election Day). The district court considered evidence from several of Ohio s counties that contradicts the State s assertions. Ohio s most populous county, Cuyahoga County, asserted that maintaining in-person early voting would actually alleviate some of its burden by spreading out the demand for voting over more days, thus reducing lines and wait times at polling places on Election Day. Further evidence showed that several more Ohio counties have already allocated funding for early voting, thus allaying concerns about the financial hardship that early voting might cause. While these counties cannot speak for all of Ohio s counties, the State introduced no specific evidence to refute any of their assertions, nor has it suggested that the experience of these counties is unique. Under the Anderson-Burdick standard, we must weigh the character and magnitude of the asserted injury against the precise interests put forward by the State... taking into consideration the extent to which those interests make it necessary to burden the plaintiff s rights. Burdick, 504 U.S. at 434 (emphasis added). The State must propose an interest sufficiently weighty to justify the limitation. Norman v. Reed, 502 U.S. 279, (1992). The burden on Plaintiffs voting rights is surely real, as the district court found, but the elimination of in-person early voting during the three-day period prior to the election does not absolutely prohibit early voters from voting. However, because early voters tend to be members of demographic groups that may be unable to vote on Election Day or during the workday at local boards of elections 14a

16 Case: Document: Filed: 10/05/2012 Page: 15 Nos /4076 Obama for America, et al. v. Jon Husted, et al. Page 15 because of work schedules, their ability to cast a ballot is impeded by Ohio s statutory scheme. 6 The burden on non-military Ohio voters is not severe, but neither is it slight. The State s proffered interest in smooth election administration must be sufficiently weighty to justify the elimination of in-person early voting for nonmilitary voters during the three-day period in question. If the State had enacted a generally applicable, nondiscriminatory voting regulation that limited in-person early voting for all Ohio voters, its important regulatory interests would likely be sufficient to justify the restriction. See Burdick, 504 U.S. at 434. However, Ohio s statutory scheme is not generally applicable to all voters, nor is the State s justification sufficiently important to excuse the discriminatory burden it has placed on some but not all Ohio voters. The State advances only a vague interest in the smooth functioning of local boards of elections. The State simply indicates that allowing in-person early voting, as was done in the past, could make it much more difficult for the boards of elections to prepare for Election Day. (R. 35-9, Defs. Ex. 8, at 3 (emphasis added).) With no evidence that local boards of elections have struggled to cope with early voting in the past, no evidence that they may struggle to do so during the November 2012 election, and faced with several of those very local boards in opposition to its claims, the State has not shown that its regulatory interest in smooth election administration is important, much less sufficiently weighty to justify the burden it has placed on nonmilitary Ohio voters. 2. Unique Challenges to Military Service Members and Their Families The State s asserted goal of accommodating the unique situation of members of the military, who may be called away at a moment s notice in service to the nation, is certainly a worthy and commendable goal. However, while there is a compelling reason to provide more opportunities for military voters to cast their ballots, there is no 6 The Equal Protection Clause permits states to enact neutrally applicable laws, even if the impact of those laws falls disproportionately on a subset of the population. See, e.g., Crawford, 553 U.S. at 207 (Scalia, J., concurring) (citing Washington v. Davis, 426 U.S. 229, 248 (1976)). However, Ohio s statutory scheme is self-evidently not neutrally applicable; it restricts the rights of some voters and not others. 15a

17 Case: Document: Filed: 10/05/2012 Page: 16 Nos /4076 Obama for America, et al. v. Jon Husted, et al. Page 16 corresponding satisfactory reason to prevent non-military voters from casting their ballots as well. Federal and state law makes numerous exceptions and special accommodations for members of the military, within the voting context and without, and no one argues that these exceptions are somehow constitutionally suspect. By and large, these statutes and regulations from UOCAVA and the MOVE Act to the Uniformed Services Employment and Reemployment Act are based on highly relevant distinctions between service members and the civilian population, and they confer benefits accordingly. For example, UOCAVA s accommodations for military and overseas voters are based almost entirely on the difficulties that arise from being physically located outside the United States. To address communication difficulties, Ohio law permits absent military and overseas voters to request an absentee ballot by mail, fax, , or in person, while other voters may only do so by mail or in person. Ohio Rev. Code , , To account for inconsistencies and delays in foreign mail systems, UOCAVA, as amended by the MOVE Act, requires states to provide absentee ballots to absent military and overseas voters at least 45 days prior to an election. 42 U.S.C. 1973ff- 1(a)(8). These special accommodations are tailored to address the problems that arise from being overseas. Providing more time for military and overseas voters to cast their ballots inperson is not a response to the problem of these voters being absent, because absent voters obviously cannot cast ballots in person. Rather, the State argues that these voters need more time to vote early because they could be called away from the jurisdiction in an emergency with little notice. (See R. 35-8, Defs. Ex. 7; R , Defs. Ex. 9.) We acknowledge the difficult circumstances of members of the military and their families, who constantly face the possibility of a sudden and unexpected deployment, and we admire their dedication and sacrifice. For that reason, Ohio s commitment to providing as many opportunities as possible for service members and their families to vote early is laudable. However, the State has offered no justification for not providing similarly situated voters those same opportunities. See S.S. v. E. Ky. Univ., 532 F.3d 445, 457 (6th 16a

18 Case: Document: Filed: 10/05/2012 Page: 17 Nos /4076 Obama for America, et al. v. Jon Husted, et al. Page 17 Cir. 2008) ( In essence, a State must treat similarly situated individuals in a similar manner. (quoting Buchanan v. City of Bolivar, 99 F.3d 1352, 1360 (6th Cir. 1996)). The State asserts that military and overseas voters are not similarly situated to other Ohio voters for equal protection purposes. The Equal Protection Clause does not forbid classifications. It simply keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike. Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (emphasis added); see also TriHealth, Inc. v. Bd. of Comm rs, 430 F.3d 783, 790 (6th Cir. 2005) (finding that two groups of hospitals were not similarly situated for equal protection purposes because they differ[ed] in several material respects ). In many respects, absent military and overseas voters are not similarly situated to other Ohio voters. Typically, their absence from the country is the factor that makes them distinct, and this is reflected in the exceptions and special accommodations afforded to these voters under federal and state law. With respect to in-person early voting, however, there is no relevant distinction between the two groups. The State argues that military voters need extra early voting time because they could be suddenly deployed. But any voter could be suddenly called away and prevented from voting on Election Day. At any time, personal contingencies like medical emergencies or sudden business trips could arise, and police officers, firefighters and other first responders could be suddenly called to serve at a moment s notice. There is no reason to provide these voters with fewer opportunities to vote than military voters, particularly when there is no evidence that local boards of elections will be unable to cope with more early voters. While we readily acknowledge the need to provide military voters more time to vote, we see no corresponding justification for giving others less time. The State and Intervenors worry about the logical extensions and practical implications of Plaintiffs position. If states are forced to provide the same accommodations to every voter that they currently provide to military and overseas voters, such as added flexibility and extra time, states may simply eliminate these special accommodations altogether. (See R , Defs. Ex. 9, at 5.) However, virtually all 17a

19 Case: Document: Filed: 10/05/2012 Page: 18 Nos /4076 Obama for America, et al. v. Jon Husted, et al. Page 18 of the special voting provisions in federal and Ohio law address problems that arise when military and overseas voters are absent from their voting jurisdictions. See Doe v. Walker, 746 F. Supp. 2d 667, (D. Md. 2010) (describing the purpose of the MOVE Act as facilitating the receiving and sending of absentee ballots from overseas). They are not similarly situated to all other voters in this respect, and states are justified in accommodating their particular needs. With respect to in-person voting, the two groups are similarly situated, and the State has not shown that it would be burdensome to extend early voting to all voters. Its argument to the contrary is not borne out by the evidence. See supra Part II.B.1. Equally worrisome would be the result if states were permitted to pick and choose among groups of similarly situated voters to dole out special voting privileges. Partisan state legislatures could give extra early voting time to groups that traditionally support the party in power and impose corresponding burdens on the other party s core constituents. See Clingman v. Beaver, 544 U.S. 581, 603 (2005) (O Connor, J., concurring) ( [P]articularly where [voting restrictions] have discriminatory effects, there is increasing cause for concern that those in power may be using electoral rules to erect barriers to electoral competition. ). To avoid this dangerous result, courts must carefully weigh the asserted injury against the precise interests proffered by the State. Burdick, 504 U.S. at 434. Although the State argues that it has justifiably given more early voting time to military and overseas voters, in fact, the time available to those voters has not changed and will not be affected by the district court s order. Rather, the State must show that its decision to reduce the early voting time of non-military voters is justified by a sufficiently weighty interest. The State has proposed no interest which would justify reducing the opportunity to vote by a considerable segment of the voting population. Having found that neither interest proposed by the State is sufficient to justify the limitation on in-person early voting imposed on all non-military Ohio voters, we find that Plaintiffs are likely to succeed on their claim that Ohio Rev. Code , as implemented by the Ohio Secretary of State, violates the Equal Protection Clause. 18a

20 Case: Document: Filed: 10/05/2012 Page: 19 Nos /4076 Obama for America, et al. v. Jon Husted, et al. Page 19 III. Equitable Factors When a party seeks a preliminary injunction on the basis of a potential constitutional violation, the likelihood of success on the merits often will be the determinative factor. Jones v. Caruso, 569 F.3d 258, 265 (6th Cir. 2009). We have concluded that Plaintiffs are likely to succeed on the merits of their equal protection challenge, but we nevertheless address the remaining three factors of the preliminary injunction test. A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. Winter, 555 U.S. at 20. The equitable factors of the preliminary injunction test also weigh in favor of granting the preliminary injunction. Plaintiffs, their members and constituents, and all non-military Ohio voters would be irreparably injured absent a preliminary injunction. A plaintiff s harm from the denial of a preliminary injunction is irreparable if it is not fully compensable by monetary damages. Tenke Corp., 511 F.3d at 550. When constitutional rights are threatened or impaired, irreparable injury is presumed. See ACLU of Ky. v. McCreary County, Ky., 354 F.3d 438, 445 (6th Cir. 2003). A restriction on the fundamental right to vote therefore constitutes irreparable injury. See Williams v. Salerno, 792 F.2d 323, 326 (2d Cir. 1986) (finding that the denial of the right to vote is irreparable harm ). The balance of equities and the public interest also weigh in Plaintiff s favor. The burden on non-military Ohio voters ability to cast ballots, particularly when many of those voters will likely be unable to vote on Election Day or during the day at local boards of elections because of work schedules, outweighs any corresponding burden on the State, which has not shown that local boards will be unable to cope with three extra days of in-person early voting as they have successfully done in past elections. While states have a strong interest in their ability to enforce state election law requirements, Hunter, 635 F.3d at 244, the public has a strong interest in exercising the fundamental political right to vote. Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (quoting Dunn, 405 U.S. at 336). That interest is best served by favoring enfranchisement and ensuring that 19a

21 Case: Document: Filed: 10/05/2012 Page: 20 Nos /4076 Obama for America, et al. v. Jon Husted, et al. Page 20 qualified voters exercise of their right to vote is successful. Hunter, 635 F.3d at 244. The public interest therefore favors permitting as many qualified voters to vote as possible. Because the district court properly found that the equitable factors favor Plaintiffs, its decision to issue a preliminary injunction was appropriate. IV. District Court s Remedy The State argues that the district court s remedy was overbroad because it could be read to affirmatively require the State to mandate early voting hours during the threeday period prior to the election. We do not read the district court s order in this way. The order clearly restores the status quo ante, returning discretion to local boards of elections to allow all Ohio voters to vote during Saturday, November 3, 2012; Sunday, November 4, 2012; and Monday, November 5, Because Ohio Rev. Code is unconstitutional to the extent that it prohibits non-military voters from voting during this period, the State is enjoined from preventing those voters from participating in early voting. But the State is not affirmatively required to order the boards to be open for early voting. Under the district court s order, the boards have discretion, just as they had before the enactment of The district court s remedy was therefore appropriate. CONCLUSION For the foregoing reasons, we AFFIRM the district court s order granting a preliminary injunction. 20a

22 Case: Document: Filed: 10/05/2012 Page: 21 Nos /4076 Obama for America, et al. v. Jon Husted, et al. Page 21 CONCURRING IN PART, DISSENTING IN PART HELENE N. WHITE, Circuit Judge (concurring in part and dissenting in part). Except with respect to the remedy, I join in the affirmance but arrive there by a different route. I First, I think it clear that the elimination of non-uocava voters access to inperson absentee ballots after 6 p.m. the Friday before the election was not a fluke, but rather the considered intent of a majority of Ohio s legislators. A In enacting H.B and H.B the Ohio General Assembly attempted to treat all voters equally by imposing a uniform in-person absentee-voter deadline. H.B. 194 included a new section, (B)(3), 3 imposing the 6 p.m. Friday deadline for inperson absentee voters, but neglected to amend parallel sections (I) and (C)(12), which permitted non-uocava and UOCAVA voters to obtain and submit in-person absentee ballots at their local election boards until the close of regular business the day before election day (PID , 421, 436). The prior statute also contained a provision that applied only to UOCAVA voters, section , allowing them to obtain and vote by in-person absentee ballot until the polls close on election day. The legislature apparently caught this provision, and amended that section in H.B. 194, placing UOCAVA voters on the same footing as non-uocava voters by allowing them in-person absentee-voting during the time that absent voter s ballots may be cast in person before an election. (PID 441) After the legislature realized that it had failed to 1 Amended Substitute House Bill Number 194, 2011 Ohio Laws Amended Substitute House Bill Number 224, 2011 Ohio Laws Ohio Rev. Code (B)(3). 21a

23 Case: Document: Filed: 10/05/2012 Page: 22 Nos /4076 Obama for America, et al. v. Jon Husted, et al. Page 22 amend existing provisions that permitted voters to obtain and vote by in-person absentee ballots through the Monday before election day, it passed H.B. 224 by unanimous vote and amended sections (I) and (C)(12) to make all deadlines uniform (PID 580, 590, 974, 993). Thus, the combined effect of H.B. 194 and H.B. 224 was to eliminate weekend voting for everyone; the only difference between UOCAVA and non- UOCAVA voters was that for non-uocava voters only one section of the prior law required amendment, and for UOCAVA voters two sections required amendment, one of which was amended by H.B. 194 and the other by H.B When H.B. 194 was stayed by the referendum certification and later repealed by S.B. 295, 4 the provision of H.B. 194 that added the Friday 6 p.m. deadline was no longer effective, but the original versions of sections (I) and (C)(12) had been amended by H.B. 224 to reflect the Friday deadline, and the effect of that statute was not suspended. Further, the amendment to section that had made UOCAVA absentee-voting hours consistent with the new Friday deadline was also suspended, resulting in the reinstatement of the language allowing UOCAVA absentee-voting through election day and a conflict between the two provisions relating to UOCAVA voters the original version providing for in-person absentee voting until the polls close, and the H.B. 224 deadline that corresponded to the same H.B. 224 non-uocava deadline of 6 p.m. Friday (PID , , ). When considering H.B. 295, the legislature understood that sections (I) and (C)(12) had been amended by H.B. 224, not H.B. 194, and debated whether to repeal H.B. 224 as well. The vote was divided along party lines. Thus, notwithstanding assertions to the contrary, there is no question that the failure to repeal H.B. 224 at the same time H.B. 194 was repealed was not inadvertent. That is, the legislature knew that the net effect of repealing H.B. 194 and enacting S.B. 295 would be that the Friday deadlines of H.B. 224 would survive the repeal of H.B It is less clear, however, whether the legislature was aware that another provision of the former statute, section , had not been amended by H.B. 224, but by H.B. 194, and 4 Substitute Senate Bill Number 295, 2012 Ohio Laws a

24 Case: Document: Filed: 10/05/2012 Page: 23 Nos /4076 Obama for America, et al. v. Jon Husted, et al. Page 23 therefore that provision would continue in its unamended state and provide for a conflicting end-of-election-day deadline for in-person absentee voting by UOCAVA voters (PID ). B Section (I) ends in-person non-uocava absentee voting at 6 p.m. the Friday before election day. It is silent regarding all other hours and days for in-person absentee voting once voting begins, except that section (B) requires election offices to remain open until 9 p.m. on the last day of registration. The statute does not prohibit a county board of elections from permitting in-person absentee voting in the evenings or during the weekends preceding the final pre-election-day weekend. Nevertheless, Secretary Husted issued a directive setting mandatory hours and forbidding local elections offices from maintaining night and weekend hours for non- UOCAVA voters. 5 This directive is incorporated in the voting restrictions plaintiffs challenge and the court ruled unconstitutional. Therefore, I consider both section (I) and the Secretary s directive in considering the burden on non-uocava voters. II There is no constitutional right to an absentee ballot. This is made clear in McDonald v. Board of Election Commissioners, 394 U.S. 802 (1969), Prigmore v. Renfro, 356 F. Supp. 427 (N.D. Ala. 1972), summ. aff d, 410 U.S. 919 (1973), O Brien v. Skinner, 414 U.S. 524 (1974), and Goosby v. Osser, 409 U.S. 512 (1973). The 5 Secretary Husted directed all counties to adopt the following regular business hours: 8:00 a.m. to 5:00 p.m., Tuesday through Friday, from October 2, 2012 through October 5, 2012; 8:00 a.m. to 9:00 p.m., Tuesday, October 9, 2012; [mandated by Section (B)] 8:00 a.m. to 5:00 p.m., Wednesday through Friday, from October 10, 2012 through October 12, 2012; 8:00 a.m. to 5:00 p.m., Monday through Friday, from October 15, 2012 through October 19, 2012; 8:00 a.m. to 7:00 p.m., Monday through Friday, from October 22, 2012 through October 26, 2012; 8:00 a.m. to 7:00 p.m., Monday through Thursday, [from] October 29, 2012 through November 1, 2012; and 8:00 a.m. to 6:00 p.m., Friday, November 2, Directive (PID 1481) (internal footnotes omitted). Any voter in line at the end of these regular business hours must be permitted to make his or her application and vote. Id. 23a

25 Case: Document: Filed: 10/05/2012 Page: 24 Nos /4076 Obama for America, et al. v. Jon Husted, et al. Page 24 Constitution protects the right to vote, and it is only when there is no alternative vehicle for voting that the Supreme Court has found a right to an absentee ballot. Compare Skinner, 414 U.S. at and Goosby, 409 U.S. at with McDonald, 394 U.S. at and Prigmore, 356 F. Supp These absentee-ballot cases applied the rational-basis test to claims of entitlement to an absentee ballot as well as to equal protection challenges based on differentiations between voters with regard to absentee ballots, and recognized the state interest in regulating elections. One may understandably ask, then, how Ohio s restrictions on in-person absentee voting can violate the Constitution. For me, the answer is that the Supreme Court has since applied the Anderson/Burdick 6 balancing test in evaluating a state s interest in the regulation of elections, and that in applying that test, it is proper to look at the facts on the ground in Ohio. III The instant case raises several preliminary questions that affect the result. The first is which standard governs our consideration of plaintiffs claims the rational-basis test employed in the absentee-ballot cases, or the more recent Anderson/Burdick balancing test, which weighs the burden on the right to vote against the state s important regulatory interests. The Supreme Court has not decided an absentee-ballot case since the Anderson/Burdick test was announced, but two circuit courts have, and both applied the balancing test. In Price v. New York State Board of Elections, 540 F.3d 101 (2d Cir. 2008), the Second Circuit considered a challenge to New York statutes that permitted absentee voting in all elections except county party committee elections. The court rejected New York s argument that rational-basis review should apply, analyzed the case under Anderson/Burdick, and found New York s interests did not justify the burden on voters. Price, 540 F.3d at In Griffin v. Roupas, 385 F.3d 1128 (7th Cir. 2004), the Seventh Circuit considered a challenge brought by Illinois working mothers who asserted a constitutional right to vote by absentee ballot (or some other alternative means) on the same basis as other voters who were granted the right to vote by absentee 6 Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992). 24a

26 Case: Document: Filed: 10/05/2012 Page: 25 Nos /4076 Obama for America, et al. v. Jon Husted, et al. Page 25 ballot because, like the other voters, they too had great difficulty voting between 6 a.m. and 7 p.m. on election day. Although the court denied the challenge, it applied the Anderson/Burdick balancing test. See Griffin, 385 F.3d at Thus, I agree with the district court and the majority that the Anderson/Burdick balancing test is, indeed, the proper test. The Supreme Court has applied this test in its election jurisprudence since Anderson, see, e.g., Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 (2008), and the test is flexible enough to approximate the rational-basis test when appropriate, i.e., where the burden is slight, the required showing by the state is correspondingly light. IV In applying this balancing test, I cannot agree with the majority s assertion that Plaintiffs introduced extensive evidence that a significant number of Ohio voters will in fact be precluded from voting without the additional three days of in-person early voting. (See, e.g., R , Pls. Ex.28, at 2.) Maj. Op. at 12. If that were in fact the case, this would be a simple matter. The burden would be great and the rationales offered by Ohio, which are plausible and rational on their face but find little support in the record, would not outweigh the burden on those precluded from exercising their right to vote. However, though the record clearly establishes that a significant number of Ohio voters found it most convenient to vote after hours and the weekend before the election, the study did not consider the extent to which these voters would or could avail themselves of other voting options, either by mail ballot or in-person absentee ballot at other times, or in-person voting on election day (PID ). Convenience cannot be equated with necessity without more. Thus, it cannot be fairly said that there was evidence that a significant number of Ohio voters will be precluded from voting unless weekend and after-hours voting is restored. Nevertheless, the burden may be substantial without being preclusive. A report by the Franklin County Board of Elections concluded that in-person early voting accounted for 9 percent of all ballots cast in the 2008 election, that a disproportionately higher number of African-Americans voted early and, most significantly, that 82 percent 25a

27 Case: Document: Filed: 10/05/2012 Page: 26 Nos /4076 Obama for America, et al. v. Jon Husted, et al. Page 26 of all early in-person votes were cast either after hours on weekdays, on weekends, or the Monday before the election (PID 1068). A study by a voter advocacy group indicating that restrictions on in-person early voting would disproportionately affect African-American voters in Cuyahoga County revealed that African-Americans in that county had voted in disproportionately large numbers during extended hours and weekends, and in the three days before the 2008 general election, although they had the option of voting by mail and in-person during regular business hours; and that restricting in-person early voting in 2012 would likely lead to crowded conditions during regular board hours, raising concern that voters would find it necessary to abandon their attempts to vote due to extremely long wait times (PID 1077, ). To be sure, these studies as well do not establish that voters will be precluded from voting if afterhours and weekend in-person absentee voting is not restored. But they are strong evidence that a significant number of voters in Ohio s two largest counties have come to depend on after-hours and weekend voting as a vehicle for exercising their right to vote. 7 Still, no case has held that voting has to be convenient. The question then is whether the elimination of in-person after-hours and weekend voting should be viewed in a vacuum as if plaintiffs were simply asserting that because of their long work hours and other demographics they should be able to vote after hours and on weekends so that they can get the full benefit of early in-person voting or in the context of Ohio voting over the last decade, which includes Ohio s remedial grant of such extended in-person absentee-voting opportunities, the substantial exercise of that right, and the boards of Ohio s largest counties reliance on the availability of such voting. If the weighing must be done in the abstract, I would be compelled to dissent because the election case law 7 Justices Scalia, Thomas and Alito would hold that the weighing of the burden on voters against the state s legitimate regulatory interests must be conducted by looking at the electorate at large, not a particular group of voters who may be burdened disproportionately by an otherwise nondiscriminatory law. See Crawford, 553 U.S. at (Scalia, J., concurring). However, Justice Stevens opinion in Crawford (the narrowest opinion, thus the controlling one for our purposes) examined the evidence and concluded that, on the basis of the record that has been made in this litigation, we cannot conclude that the statute imposes excessively burdensome requirements on any class of voters. Id. at 202 (quoting Storer v. Brown, 415 U.S. 724, 738 (1974)). Justice Stevens opinion does not reveal any disinclination to evaluate evidence of an excessive burden; rather, the purely anecdotal evidence did not support that the voter-id statute at issue imposed such a burden. See Crawford, 553 U.S. at a

28 Case: Document: Filed: 10/05/2012 Page: 27 Nos /4076 Obama for America, et al. v. Jon Husted, et al. Page 27 does not support the proposition that there is a constitutional right to have voting on terms that are equally convenient for all voters. I conclude, however, that the Anderson/Burdick balancing in this case should not be divorced from reality, and that both the burden and the legitimate regulatory interest should be evaluated in context. V The key distinguishing factor here is that Ohio voters were granted the statutory right to in-person absentee voting through the close of business hours on the Monday before election day, and the election boards of the largest counties broadly embraced and facilitated that right, in response to the unacceptably burdensome situation at many Ohio polling sites during the 2004 election where, in some counties, voters were required to stand in line for long hours and until late at night (PID , ). Thus, section (I), as originally enacted, was intended to relieve the pressure on the system resulting from heavy turnout on election day. Further, experience shows that Ohio voters have taken increasing advantage of in-person absentee voting. In the last presidential election, close to 500,000 Ohio voters cast in-person absentee ballots, of which it appears a little over 100,000 were cast the weekend before the election (PID 1053). Further, in the 2008 election, the residents of Ohio s two largest counties, Cuyahoga and Franklin, cast over 100,000 in-person absentee votes, the vast majority during after-hours and on weekends. These counties have budgeted and planned for the expected extended hours and weekend in-person absentee voting, especially the weekend before the election (PID , ). They have not budgeted or planned for any increase in election-day voting caused by the elimination of weekend and after-hours voting, and fear that the restrictions on the hours for in-person absentee voting will cause some citizens not to vote and others to vote on election day, leading to long lines and unreasonable delays at the polls, which in turn will cause some voters to abandon their attempts at voting, as happened in Although states are permitted broad discretion in devising the election scheme that fits best with the perceived needs of the state, and there is no abstract constitutional right to vote by absentee ballot, eleventh-hour changes to remedial voting provisions that 27a

29 Case: Document: Filed: 10/05/2012 Page: 28 Nos /4076 Obama for America, et al. v. Jon Husted, et al. Page 28 have been in effect since 2005 and have been relied on by substantial numbers of voters for the exercise of their franchise are properly considered as a burden in applying Anderson/Burdick balancing. To conclude otherwise is to ignore reality. This does not mean that states cannot change their voting schemes, only that in doing so they must consider the burden the change and the manner of implementing the change places on the exercise of the right to vote. VI Defendants argue that the new restricted in-person absentee voting hours are necessary to relieve election workers and election officials from the burdens of in-person absentee voting immediately before the election, and to assure uniformity in absenteevoting hours throughout the state. These are legitimate regulatory interests; but neither bears any relation to the elimination of all after-hours and weekend voting preceding the final weekend. Regarding the final weekend, these concerns provide little explanation for the elimination of the right to obtain an absentee ballot in person the Saturday before the election, when election workers are still honoring mail requests for absentee ballots until noon pursuant to statute. And in weighing the elimination of in-person absentee voting the remainder of the weekend, the record shows that many of the specific complaints voiced by election officials stemmed from in-person absentee voting the Monday before the election, not the entire weekend. 8 The desire for uniformity has little to do with the elimination of all weekend and after-hours in-person voting. Defendants offer no explanation for curtailing hours other than on the final weekend, and uniformity without some underlying reason for the chosen rule is not a justification in and of itself. Nor is there a showing that eliminating all weekend and after-hours voting will in fact produce uniform access, as opposed to uniform hours. Given the studies presented regarding the heavy use of in-person after-hours and weekend voting, and the legitimate concerns of Ohio s largest counties and their voters 8 In 2009, former Secretary of State Jennifer Brunner suggested that consideration be given to the pressure on the election commissions caused by in-person absentee voting and that the voting period be shortened from 30 to 20 days, with in-person absentee voting ending at 5 p.m. the Sunday before the election. 28a

30 Case: Document: Filed: 10/05/2012 Page: 29 Nos /4076 Obama for America, et al. v. Jon Husted, et al. Page 29 regarding the smooth and efficient running of the 2012 presidential election, I conclude that defendants legitimate regulatory interests do not outweigh the burden on voters whose right to vote in the upcoming election would be burdened by the joint effect of the statute and the directive. Finally, I conclude that this is the unusual case where distinctions between UOCAVA and non-uocava voters cannot support the disparate treatment at issue. The record adequately supports the district court s conclusion that the State s proffered reason for the distinction between UOCAVA and non-uocava voters concern that military voters might be deployed sometime between Friday evening and election day had no relation to the statutory distinction and is not supported by the Secretary s directive. VII Turning to the question of remedy, I understand the district court to have required Secretary Husted to restore in-person absentee voting through the Monday preceding election day. I would remand the matter with instructions to give the Secretary and the General Assembly a short and finite period in which cure the constitutional defects, with the understanding that a failure to do so will result in the reinstatement of the preliminary injunction. 29a

31 Case: 2:12-cv PCE-NMK Doc #: 60 Filed: 09/12/12 Page: 1 of 6 PAGEID #: 1665 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION OBAMA FOR AMERICA, et al., v. Plaintiffs, JON HUSTED, in his official capacity As Ohio Secretary of State, et al., Defendants. Case No. 2:12-CV Judge Peter C. Economus ORDER DENYING MOTION FOR STAY In a September 7, 2012 filing, Defendant Secretary of State Jon Husted moved this Court to stay its August 31, 2012 Order pending resolution of the matter on appeal. (Doc. # 54.) Plaintiffs Obama for America, et al., filed a response in opposition. (Doc. # 57.) Although Defendant did not move for an expedited order, this Court construed his motion as such and condensed briefing on the issue. (See Order, doc. # 55.) In its August 31, 2012 Opinion, this Court ordered as follows: I. Further, this Court hereby orders that the State of Ohio through Defendant Secretary of State Jon Husted is enjoined from implementing or enforcing Ohio Revised Code in Amended Substitute House Bill 224 and/or the Substitute Senate Bill 295 enactment of Ohio Revised Code with the Amended Substitute House Bill 224 amendments; and It is further ordered that in-person early voting is restored on the three days immediately preceding Election Day for all eligible Ohio voters. And specifically, for the purposes of the 2012 General Election, this Order restores in-person early voting to all eligible Ohio voters on Saturday, November 3, 2012; Sunday, November 4, 2012; and Monday, November 5, This Court anticipates that Defendant Secretary of State will direct all Ohio elections boards to maintain a specific, consistent schedule on those three days, in keeping with his earlier directive that only by 30a

32 Case: 2:12-cv PCE-NMK Doc #: 60 Filed: 09/12/12 Page: 2 of 6 PAGEID #: 1666 doing so can he ensure that Ohio s election process is uniform, accessible for all, fair, and secure. (Opinion and Order, doc. # 48, page 23, emphasis omitted.) Defendants Secretary of State Jon Husted and Ohio Attorney General Mike DeWine filed an appeal on September 4, Now, Defendant Husted seeks a stay of that Order, until resolution of the appeal by the Sixth Circuit Court of Appeals or the United States Supreme Court. Citing to the unique public interest concerns of voter confusion and voter reliance, Defendant Husted states: Absent a stay, the Secretary will be required to set uniform hours for early in-person absentee voting during the last three days for all voters. But if the Sixth Circuit or the Supreme Court reverses this Court s decision, the Secretary will be required to change those hours because early in-person absentee voting by non-uocava voters will have to end on the Friday before Election Day. Non- UOCAVA voters may be confused by those changing hours. In the alternative, Defendant Husted seeks a stay that permits him a reasonable period of time to choose a schedule that comports with his commitment to uniform, accessible for all, fair, and secure elections. (Id., page 5.) Otherwise, there is real concern that county boards of elections will begin issuing early in-person absentee voting schedules for the three-day period before the Secretary can issue a uniform schedule. Defendant Husted does not specify how much time would be reasonable. II. As noted recently by the Sixth Circuit, [t]he issuance of a stay pending appeal is not a matter of right, but an exercise of judicial discretion. Green Party of Tennessee v. Hargett, 2012 WL (6th Cir., August 9, 2012) (quoting Nken v. Holder, 556 U.S. 418, 433 (2009)) (internal quotation marks omitted). In exercising that discretion, a court considers four 2 31a

33 Case: 2:12-cv PCE-NMK Doc #: 60 Filed: 09/12/12 Page: 3 of 6 PAGEID #: 1667 factors: (1) whether the party which seeks or would benefit from a stay has made a strong showing that he is likely to succeed on the merits; (2) whether the party favoring a stay will be irreparably injured if the stay does not issue; (3) whether issuance of a stay will substantially injure other parties to the proceeding; and (4) where the public interest lies. Nken v. Holder, 556 U.S. 418, 434 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)); see also Summit County Democratic Central and Executive Committee v. Blackwell, 388 F.3d 547, 550 (6th Cir. 2004) (citation omitted). Of these four factors, the first two likelihood of success on the merits of the appeal and irreparable injury to the appealing party are the most critical. Nken, 556 U.S. at 434. However, [t]o justify the granting of a stay... a movant need not always establish a high probability of success on the merits. Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991) (citing Ohio ex rel. Celebrezze v. Nuclear Regulatory Comm n, 812 F.2d 288, 290 (6th Cir. 1987)). Even so, the movant is still required to demonstrate at least serious questions going to the merits and irreparable harm that decidedly outweighs the harm that will be inflicted on others if a stay is granted. Family Trust Found. of Ky., Inc. v. Kentucky Judicial Conduct Comm n, 388 F.3d 224, 227 (6th Cir. 2004) (citing In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985)). As the Sixth Circuit emphasized, the demonstration of a mere possibility of success on the merits is not sufficient, and renders the test meaningless. Ohio ex rel. Celebrezze v. Nuclear Regulatory Comm n, 812 F.2d 288, 290 (6th Cir. 1987) (citing Mason County Medical Ass n v. Knebel, 563 F.2d 256, 261 n.4 (6th Cir. 1977) and In re DeLorean, 755 F.2d at ). 3 32a

34 Case: 2:12-cv PCE-NMK Doc #: 60 Filed: 09/12/12 Page: 4 of 6 PAGEID #: 1668 III. Although he acknowledges the applicability of the four-factor test to his request for stay, (Motion, page 4), Defendant Husted pays little to heed to that test s factors and requirements. 1 As a result, this Court must deny his motion. Defendant Husted declines to address factors one and two, and therefore, he demonstrates neither serious questions going to the merits nor irreparable harm that decidedly outweighs the harm that will be inflicted on others absent a stay. See Family Trust, supra. Defendant Husted s neglect of these two factors is fatal to his request, see id., but for the sake of completeness, this Court reviews the remaining factors. 2 Defendant Husted argues that a stay would not harm Plaintiffs as there will be sufficient time after the appeal to establish a uniform schedule for early in-person absentee voting on the three days in question should the Sixth Circuit and the Supreme Court uphold the preliminary injunction upon expedited consideration. (Id., page 5.) Defendant Husted does not specify what he believes to be sufficient time, although presumably he is confident that whatever time is available after the appeals process will be enough. This Court is not convinced, in part 1 Defendant Husted states that, the four-part test notwithstanding, unique public interest concerns... justify a stay. (Motion, page 4.) He does not provide any relevant case law in support of his alternative unique public interest standard, although at the end of that paragraph he cites to Miller v. Brown, 465 F.Supp.2d 584 (E.D. Virginia 2006). In Miller, a political party brought a declaratory judgment action against state elections board officials on the constitutionality of Virginia s open primary statute. The district court granted summary judgment in part and granted defendants motion for stay pending appeal. Notably, the Miller court applied the traditional four-part test. 2 It is possible that Defendant Husted intended to argue irreparable harm when he referred to significant administrative difficulties that would arise absent a stay. (Motion, page 5.) However, Defendant Husted does not describe those difficulties nor how those difficulties would be significant. Further, he does not explain how administrative difficulties equate to irreparable harm. 4 33a

35 Case: 2:12-cv PCE-NMK Doc #: 60 Filed: 09/12/12 Page: 5 of 6 PAGEID #: 1669 because of its concern that an appeal that speculatively reaches the Supreme Court will not be resolved in time for the 2012 General Election. Further, Defendant Husted does not fully explain or explain at all what processes he could put quickly into place to ensure Plaintiffs right to vote in person through the Monday before Election Day, should the appeals process be contrary to his position. Without such explanation, Defendant Husted s argument regarding this factor is weak, at best. Defendant Husted focuses almost exclusively on what amounts to the fourth factor, where the public interest lies. Without a stay, he argues, voter confusion will result from his setting hours now or permitting county elections boards to set their own, individual hours and then cancelling the hours, should he prevail at the Sixth Circuit or the Supreme Court. (Motion, page 4.) However, even though he relies on this factor to the near exclusion of the others, Defendant Husted offers nothing more in support. Nothing other than having to track schedule changes is cited as part of voter confusion. This Court, aware of Defendant Husted s historical reliance on directives to explain all sorts of election-related issues, is unconvinced that he will not be able to communicate any further changes with sufficient clarity. Without further evidence of damaging voter confusion, this Court is reluctant to stay its Order on such a speculative and slim public interest argument. In sum, Defendant Husted fails to meet even the minimal requirements of the four-part test for stay pending appeal of this Court s order. He neglects to address the two most critical factors, and his remaining arguments are too slender to carry his burden to show that a stay is appropriate. Because Defendant Husted has not provided sufficiently compelling reasons in support of a stay, this Court declines to stay its August 31, 2012 Order. 5 34a

36 Case: 2:12-cv PCE-NMK Doc #: 60 Filed: 09/12/12 Page: 6 of 6 PAGEID #: 1670 IV. As a result of the foregoing, this Court hereby DENIES Defendant Jon Husted s Motion for Stay. (Doc. # 54.) IT IS SO ORDERED. /s/ Peter C. Economus PETER C. ECONOMUS UNITED STATES DISTRICT JUDGE 6 35a

37 Case: 2:12-cv PCE-NMK Doc #: 48 Filed: 08/31/12 Page: 1 of 23 PAGEID #: 1600 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION OBAMA FOR AMERICA, et al., Plaintiffs, v. JON HUSTED, et al., Defendants. Case No. 2:12-CV-0636 JUDGE PETER C. ECONOMUS OPINION AND ORDER ON PRELIMINARY INJUNCTION 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 (1972). In Ohio, that right to participate equally has been abridged by Ohio Revised Code ' 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. I. PROCEDURAL BACKGROUND Plaintiffs Obama for America, Democratic National Committee, and Ohio Democratic Party ( Plaintiffs ) filed a complaint against Jon Husted, in his official capacity as Ohio 36a

38 Case: 2:12-cv PCE-NMK Doc #: 48 Filed: 08/31/12 Page: 2 of 23 PAGEID #: 1601 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 ) ' unconstitutionally infringes on the fundamental right to vote. 1 In addition, Plaintiffs allege that conflicting and different deadlines for in-person early voting violate the Equal Protection clause of the United States Constitution. 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 2 Act and another deadline for non-uocava voters, i.e., all other voters. Plaintiffs filed a Motion for Preliminary Injunction, seeking to prohibit the State from enforcing the 6 p.m. Friday deadline and to restore in-person early voting to all Ohio voters through the Monday before Election Day. (Doc. # 2.) Plaintiffs filed an Affidavit in Support of their motion, with exhibits. (Doc. # 3.) 1 For the purposes of this Opinion, the Court uses in-person early voting to refer to the period of time when a registered Ohio voter may cast his or her ballot in person at a local elections board or other designated site. In addition, the Court uses Election Day to refer to November 6, 2012; Friday to denote the Friday before Election Day; the weekend to refer to the Saturday and Sunday before Election Day; and Monday to refer to the Monday before Election Day. 2 In 2009, Congress passed the Military and Overseas Voter Empowerment Act ( MOVE Act ), which amended the Uniformed and Overseas Citizens Absentee Voting Act of 1986 ( UOCAVA ), 42 U.S.C. ' 1973ff, et seq. Pub.L. No '' 577 to 582, 583(a), 584 to 587, 123 Stat (2009). UOCAVA, as amended by the MOVE Act, required the states to implement particular reforms prior to the November 2010 general elections to prevent the disenfranchisement of absent uniformed services and overseas voters. Ohio s statutes with regard to UOCAVA voters can be found in Ohio Revised Code Chapter a

39 Case: 2:12-cv PCE-NMK Doc #: 48 Filed: 08/31/12 Page: 3 of 23 PAGEID #: 1602 Pursuant to a briefing schedule ordered by this Court, the State and Defendant/Intervenors 3 filed memoranda in opposition (docs. # 9 and 10). Plaintiffs filed a reply in support of their motion. (Doc. # 20.) Two groups filed motions for leave to file amicus briefs, and those motions were granted and the amicus briefs were deemed filed instanter. (Amicus brief of American Center for Law and Justice, doc. # 19; amicus brief of County of Cuyahoga, Ohio, doc. # 38.) On August 15, 2012, this Court held a hearing on Plaintiffs motion for preliminary injunction. The parties filed numerous exhibits: Plaintiffs Exhibits (docs. # 34, ); Defendants Exhibits, which include exhibits of both the State and Defendant/Intervenors (docs. # 35, ). In addition, after the hearing, the State Defendants filed a Notice of Secretary of State Directive (Docs. # 40 and 40-1.) In response to that notice, Plaintiffs filed a Supplemental Memorandum, with exhibits (docs. # 42, ), to which the State Defendants filed a response (doc. # 44). Thereafter, Plaintiffs filed a Notice of Further Developments, with exhibits. (Doc. # 46, ) II. LEGISLATIVE BACKGROUND A. In-Person Early Voting Rights Arguably as a response to the problems attendant to the 2004 general election, 4 the Ohio 3 On August 1, 2012, Defendant/Intervenors Military Groups filed a Motion to Intervene. (Doc. # 8.) This Court granted the motion in an Order dated August 6, (Doc. # 12.) 4 See, e.g., League of Women Voters v. Brunner, 548 F.3d 463 (6th Cir. 2008) and descriptions therein. 3 38a

40 Case: 2:12-cv PCE-NMK Doc #: 48 Filed: 08/31/12 Page: 4 of 23 PAGEID #: 1603 General Assembly established no-fault absentee voting, eliminating the qualifications voters had been required to meet under the former law. (HB 234, 126th Leg. (Oh. 2005) (amending Ohio Rev. Code (A) and (C), , and (B)).) In doing so, the State expanded to all Ohio voters the right to vote absentee and the right to cast that vote in person at the voter s county s board of elections (or other designated site) through the day before Election Day. 5 B. Legislative Ambiguity 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, By passing HB 194, the Ohio General Assembly sought to eliminate the last three days of early in-person voting for all voters, but instead it created two deadlines: Friday at 6 p.m. and end of business Monday. 6 On July 13, 2011, the 129th Ohio General Assembly passed Amended Substitute 5 See H.B. 194, 129th Leg. (Oh. 2011) ( HB 194 ) at ' (setting no deadline prior to HB 194 amendments), ' (setting a deadline of Monday), ' (setting a deadline of Monday), and ' (prior to HB 194 amendments, setting a deadline of Monday for early in-person voting.) The Ohio Revised Code provisions regarding early voting are not a model of legislative clarity. The provisions language is disorganized and generally confusing, containing numerous deadlines that are not clearly identified. 6 For non-uocava voters, HB 194 amended to provide that, [f]or all voters who are applying to vote absent voter s ballots in person, ballots... shall continue to be available for use through six p.m. on the last Friday before the day of the election. (HB 194, Sec (B)(3).) However, HB 194 did not change the language in , which set the end time for in-person early voting at close of business the day before an election. (HB 194, Sec ) The deadline for in-person early voting was inconsistent: Friday at 6 p.m. and close of business on Monday. In addition, HB 194 amended to make the deadline for in-person early voting deadline for UOCAVA voters consistent with the deadline for non-uocava voters, changing the deadline from the close of the polls on Election Day to during the time that absent voter s ballots may be cast in person. (HB 194, Sec ) However, HB 194 did not amend , which permitted in-person early voting by UOCAVA voters 4 39a

41 Case: 2:12-cv PCE-NMK Doc #: 48 Filed: 08/31/12 Page: 5 of 23 PAGEID #: 1604 House Bill Number 224 ( HB 224 ). The bill was signed on July 27, 2011 but did not become effective until October 27, HB 224 amended both and to end early voting for all Ohio voters at Friday at 6 p.m. Before HB 224 went into effect, on September 29, 2011, a referendum petition was filed, the immediate effect of which was to put on hold HB 194 s amendments. (See McTigue Aff. Ex. 5.) With HB 194 on hold, HB 224 served to continue the legislative confusion with conflicting and unclear deadlines. 7 Defendant Secretary of State addressed the issue of inconsistent in-person early voting deadlines in the Secretary of State Advisory , dated October 14, (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, 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 until the close of regular business hours on the day before the election. Again, this resulted in two deadlines for inperson early voting: Friday at 6 p.m. and close of business on Monday. 7 Pursuant to ORC ' , the deadline for non-uocava voters is 6 p.m. Friday. UOCAVA voters have two deadlines, 6 p.m. Friday and end of business on the Monday before Election Day, pursuant to ORC '' , as amended by HB 224, and , as that section provided prior to HB 194, respectively. 5 40a

42 Case: 2:12-cv PCE-NMK Doc #: 48 Filed: 08/31/12 Page: 6 of 23 PAGEID #: , while contains no deadline. Notwithstanding any attempts at consistency, UOCAVA voters are again left with two deadlines: Friday at 6 p.m., pursuant to , and the close of business on Monday, pursuant to On June 22, 2012, the Secretary of State issued Directive (Defs. Exh. 2.) In this one, he stated as follows: In order to ensure uniformity across counties and reduce lines at polling places for the November 6, 2012 General Election, the Secretary of State s Office will mail absentee ballot applications, by non-forwardable mail, to 1) every registered voter in Ohio in active status [footnote omitted], and 2) every registered voter in Ohio who voted in the 2008 presidential election as reflected in the Statewide Voter Registration Database, regardless of voter status as described herein. 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, (Directive , 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. 8 Defendant Secretary of State stated, in the directive, as follows: [A]fter talking with election officials across the state, I have decided to level the playing field on voting days and hours during the absentee period in order to ensure that the Presidential Election in Ohio will be uniform, accessible for all, fair, and secure. 8 All Boards of Elections are closed on Monday, October 8, 2012 in observance of a state holiday. The next day, Tuesday, October 9, 2012, Boards of Elections are to be open from 8 a.m. to 9 p.m. (Directive, doc. # 40-1, page 2.) 6 41a

43 Case: 2:12-cv PCE-NMK Doc #: 48 Filed: 08/31/12 Page: 7 of 23 PAGEID #: 1606 (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.) III. THE PARTIES ARGUMENTS A. Plaintiffs 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 inperson 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 7 42a

44 Case: 2:12-cv PCE-NMK Doc #: 48 Filed: 08/31/12 Page: 8 of 23 PAGEID #: 1607 qualified Ohio voters in 2005, used by an estimated 93,000 Ohio voters in the 2008 presidential election, and inequitably taken away from most, but not all, Ohio voters without justification in the last year. (Motion for Prelim. Inj., page 1.) In support, Plaintiffs submit four statistical studies. One study asserts that 17.8% of 2010 Ohio early voters cast those votes in person at local boards of elections. ( A Study of Early Voting in Ohio Elections, The Ray C. Bliss Institute of Applied Politics at the University of Akron, doc. # at pages 1 2.) The study also notes that early voters were more likely than election-day voters to be women, older, and of lower income and education attainment. (Id. at page 1.) [E]arly voters appear to have favored Democratic candidates in 2010 and 2006, while election-day voters favored Republican candidates. (Id. at pages 1-2.) From the 2006 and 2008 elections, early voting in Ohio increased from 639,416 voters to 1,717,256 voters, representing an increase to 20% of registered voters and 30.2% of the vote cast. (Id. at pages 2-3.) In 2010, a survey of early voters indicated that at least 29% cast their vote in the seven days before Election Day. (Id. at page 5.) Significantly, the study indicated that early voters tend to have lower income than election-day voters with the difference most noticeable among people with annual incomes of less than $35,000. (Id. at page 15.) The study does point out that both early and election-day voting groups have approximately the same number of people in the highest income category. (Id.) 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 8 43a

45 Case: 2:12-cv PCE-NMK Doc #: 48 Filed: 08/31/12 Page: 9 of 23 PAGEID #: 1608 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 nonuniform 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. # ) 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. # ) 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 inperson 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 is based primarily on information obtained no later than 2005, and it does not offer any specific 9 44a

46 Case: 2:12-cv PCE-NMK Doc #: 48 Filed: 08/31/12 Page: 10 of 23 PAGEID #: 1609 statistics related to Ohio. 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. B. Defendants 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 ' (D). (Mem. Contra, pages ) 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.) 10 45a

47 Case: 2:12-cv PCE-NMK Doc #: 48 Filed: 08/31/12 Page: 11 of 23 PAGEID #: 1610 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: The Ohio General Assembly recognizes the nature of deployment, which can happen abruptly and unexpectedly. For instance, members of the National Guard can be called up to active duty in order to respond to disasters, whether manmade or natural. These call-ups can occur at a moment s time without any warning.... Ohio s laws, allowing UOCAVA voters the ability to cast an absentee ballot after the time during which non-military and domestic voters may do so has closed, rationally recognizes the unique circumstance that military voters may face. The General Assembly has provided a statutory scheme that accommodates that possibility. (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 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.) IV. PRELIMINARY INJUNCTION Rule 65 of the Federal Rules of Civil Procedure authorizes the Court to grant preliminary injunctive relief. A district court is to consider the following four factors when deciding to issue a preliminary injunction: (1) whether the movant has a strong likelihood of success on the merits; 11 46a

48 Case: 2:12-cv PCE-NMK Doc #: 48 Filed: 08/31/12 Page: 12 of 23 PAGEID #: 1611 (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by the issuance of the injunction. See Hunter v. Hamilton County Bd. of Elections, 635 F.3d 219, 233 (6th Cir. 2011); Certified Restoration Dry Cleaning Network, LLC v. Tenke Corp., 511 F.3d 535, 542 (6th Cir. 2007). [T]he four considerations applicable to preliminary injunctions are factors to be balanced and not prerequisites that must be satisfied. In re Eagle-Picher Industries, Inc., 963 F.2d 855, 859 (6th Cir. 1992) (citation omitted). These factors simply guide the discretion of the court; they are not meant to be rigid and unbending requirements. Id. at 859. A. Likelihood of Success on the Merits The right to vote is a fundamental right, preservative of all rights. Yick Wo v. Hopkins, 118 U.S. 356, 370 (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 (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 (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: The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person s vote over that of another. It must be remembered that the right of suffrage can be denied by a 12 47a

49 Case: 2:12-cv PCE-NMK Doc #: 48 Filed: 08/31/12 Page: 13 of 23 PAGEID #: 1612 debasement or dilution of the weight of a citizen s vote just as effectively as by wholly prohibiting the free exercise of the franchise. 531 U.S. 98, (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/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/Gore, 531 U.S. at 105) (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 without substantial justification from the state. 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 a

50 Case: 2:12-cv PCE-NMK Doc #: 48 Filed: 08/31/12 Page: 14 of 23 PAGEID #: 1613 (1983); Burdick v. Takushi, 504 U.S. 428 (1992). 9 More recently, the Supreme Court highlighted the applicability of the Anderson approach and its requirement that a court evaluating a constitutional challenge to an election regulation weigh the asserted injury to the right to vote against the precise interests put forward by the State as justifications for the burden imposed by its rule. Crawford v. Marion County Election Bd., 553 U.S. 181, 189 (2008) (internal citation and quotation marks omitted). The Crawford Court noted that evenhanded restrictions that protect the integrity and reliability of the electoral process itself are not invidious[,] id. (citing to Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966)), but it cautioned that [h]owever slight that burden may appear, as Harper demonstrates, it must be justified by relevant and legitimate state interests sufficiently weighty to justify the limitation. Id. at 191 (quoting Norman v. Reed, 502 U.S. 279, (1992) (internal quotation marks omitted)). 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 9 This Court notes that Defendants have relied on the traditional rational basis test to argue that the statute at issue is constitutional. (See Defs. Mem. Contra, doc. # 9, pages 9-13; Def/Intervenors Mem. In Opp., doc. # 8-1, pages 7-10; Defs. Response, doc. # 44, page 4.) Defendants assert that [t]he only question is whether the challenged legislative scheme treats similarly situated individuals differently without any rational basis. (Response, doc. # 44, page 4, citing to Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974 (6th Cir. 2012) (challenging a city ordinance regulating advertising) and Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) (challenging the validity of a zoning ordinance excluding homes for mentally retarded). Consequently, they ignore the Anderson balancing test. Defendant/Intervenors do apply the Anderson test, see pages 16-17, although they characterize its application as a way to avoid the rational basis test, see page a

51 Case: 2:12-cv PCE-NMK Doc #: 48 Filed: 08/31/12 Page: 15 of 23 PAGEID #: 1614 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. 1. Plaintiffs right to vote is burdened. According to Plaintiffs, their right to vote is unreasonably and arbitrarily burdened by ORC ' s deadline and, by extension, the Secretary of State s accompanying interpretation in Directive 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 studies nor offer any statistics to counter the argument. 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 15 50a

52 Case: 2:12-cv PCE-NMK Doc #: 48 Filed: 08/31/12 Page: 16 of 23 PAGEID #: 1615 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 (1972); Bush v. Gore, 531 U.S. 98, (2000). Here, the State had granted the right to in-person early voting to all Ohio voters, in ORC ' prior to HB 194. In 2008, thousands of Ohio voters cast their votes in person in the three days prior to Election Day. Then, the State retracted that right, imposing a 6 p.m. Friday deadline. This Court finds that in-person early voting is a voting term that had included the right to vote in person through the Monday before Election Day, and, now, thousands of voters who would have voted during those three days will not be able to exercise their right to cast a vote in person. Plaintiffs submit statistical studies to support their assertion that low-income and minority voters are disproportionately affected by the elimination of those voting days. Therefore, the injury to Plaintiffs is significant and weighs heavily in their favor. 2. The State fails to substantiate its precise interests to justify the burden to Plaintiffs right to vote. 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 16 51a

53 Case: 2:12-cv PCE-NMK Doc #: 48 Filed: 08/31/12 Page: 17 of 23 PAGEID #: 1616 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 ' (D). (Defs. Memo. Contra, pages 17 18; see also Declaration of Matthew M. Damschroder, Defs. Exh. 8, && 26, 27.) Offering a different point of view, however, is the County of Cuyahoga, Ohio, which states that it has a great interest in providing in-person early voting to its constituents the weekend before Election Day. [ ]The County has a substantial interest in early voting and the outcome of this litigation. Cuyahoga County is Ohio s largest county. The County s citizens experienced substantial problems and long lines trying to exercise their constitutional right to vote during the 2004 general election. Indeed, the long lines and voting problems experienced by Cuyahoga County s citizens were a primary drive behind Ohio s introduction of early voting. [ ]Cuyahoga County provides budgetary funding to the Cuyahoga County Board of Elections. Since early voting came to Ohio in 2006, the County has taken all necessary measures and budgeted for early voting, including the last three days before the election, to protect its citizens right to exercise their constitutional right to vote a

54 Case: 2:12-cv PCE-NMK Doc #: 48 Filed: 08/31/12 Page: 18 of 23 PAGEID #: 1617 (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 all voters. At a minimum, Cuyahoga County raises the question of how great a burden each county can or will bear. There is insufficient evidence before the Court to make that determination, but the question remains. This justification is at best neutral. 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 without those three days, UOCAVA voters may not be able to vote at all: The Ohio General Assembly recognizes the nature of deployment, which can happen abruptly and unexpectedly. For instance, members of the National Guard can be called up to active duty in order to respond to disasters, whether manmade or natural. These call-ups can occur at a moment s time without any warning.... Ohio s laws, allowing UOCAVA voters the ability to cast an absentee ballot after the time during which non-military and domestic voters may do so has closed, rationally recognizes the unique circumstance that military voters may face. The General Assembly has provided a statutory scheme that accommodates that possibility. (Defs. Mem. Contra, pages 13 14, emphasis added.) Notably, though, the statutory scheme described by Defendants does not guarantee that 18 53a

55 Case: 2:12-cv PCE-NMK Doc #: 48 Filed: 08/31/12 Page: 19 of 23 PAGEID #: 1618 UOCAVA voters will be able to vote in the last three days prior to Election Day even those suddenly deployed. Why? Because the Secretary of State s Directive, which carefully sets forth non-uocava in-person voting times, permits local election boards to determine their hours for the last weekend before Election Day. Defendants emphasize that whether a service member or overseas voter can actually vote during those three days is up to each county elections board. Whether to be open those three days for in-person absentee voting by UOCAVA voters remains in the discretion of the individual county boards of election or, as Plaintiffs recognize, the Secretary exercises his authority to issue a future directive. In the past, when election boards could choose to be open those three days for in-person absentee voting by any qualified voter, many were not open the entire period. In 2008, six of Ohio s 88 counties chose not to offer any in-person absentee voting on the Saturday prior to Election Day, nearly all chose not to do so on that Sunday, and all were open during their regular weekday business hours on that Monday. See Doc. 35, Exhibit 8, & 26. In 2010, when fewer voters were expected, fourteen counties chose not to offer any in-person absentee voting on that Saturday, nearly all chose not to do so on that Sunday, and all were open on that Monday. Id. 27. (Response, page 2, emphasis added.) In sum, Defendants justification for excepting UOCAVA voters from the 6 p.m. Friday deadline that the military requires this extra voting opportunity is completely eviscerated, county by county. In fact, according to Defendants, military voters can expect not to be able to vote the Saturday and Sunday before Election Day, if history is any guide. 3. The State s interests are insufficient to justify the burden to Plaintiffs. 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 19 54a

56 Case: 2:12-cv PCE-NMK Doc #: 48 Filed: 08/31/12 Page: 20 of 23 PAGEID #: 1619 necessary to burden the plaintiff s rights. 460 U.S. at 789. 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 inperson absentee voting by UOCAVA voters remains in the discretion of the individual county boards of elections or the Secretary of State in the form of future directive. (Defs. Response, page 2.) This Court reads the Secretary s silence to underscore that the protection of the three additional days of in-person early voting to UOCAVA voters is not a strong state interest. 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 inperson 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 a

57 Case: 2:12-cv PCE-NMK Doc #: 48 Filed: 08/31/12 Page: 21 of 23 PAGEID #: 1620 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, it places all Ohio voters on equal standing. The only hindrance to UOCAVA early voting is the Secretary of State s failure to set uniform hours at elections boards during the last three days before Election Day. 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 (1983). The issue here is not the right to absentee voting, which, as the Supreme Court has already clarified, is not a fundamental right. McDonald v. Bd. of Election Commissioners, 394 U.S. 802, 807 (1969). The issue presented is the State s redefinition of in-person early voting and the resultant restriction of the right of Ohio voters to cast their votes in person through the Monday before Election Day. This Court stresses that where the State has authorized in-person early voting through the Monday before Election Day for all voters, the State may not, by later arbitrary and disparate treatment, value one person s vote over that of another. Bush v. Gore, 531 U.S. 98, (2000). Here, that is precisely what the State has done a

58 Case: 2:12-cv PCE-NMK Doc #: 48 Filed: 08/31/12 Page: 22 of 23 PAGEID #: 1621 As a result of the foregoing, this Court finds that Plaintiffs are likely to succeed on the merits of their claim. B. Remaining Factors 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 inperson 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 (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. V. CONCLUSION For the reasons discussed above, this Court hereby GRANTS Plaintiffs Obama for America, Democratic National Party, and Ohio Democratic Party s Motion for Preliminary Injunction. (Doc. # 2.) The Court DECLARES: That Ohio Revised Code ' is unconstitutional to the extent it changes the deadline for in-person early voting from the close of business on the day before Election Day to 6 p.m. on the Friday before Election Day; and 22 57a

59 Case: 2:12-cv PCE-NMK Doc #: 48 Filed: 08/31/12 Page: 23 of 23 PAGEID #: 1622 That Substitute Senate Bill 295 s enactment of Ohio Revised Code ' with the Amended Substitute House Bill 224 amendments violates the Equal Protection Clause of the United States Constitution. FURTHER, this Court HEREBY ORDERS that the State of Ohio through Defendant Secretary of State Jon Husted IS ENJOINED from implementing or enforcing Ohio Revised Code ' in Amended Substitute House Bill 224 and/or the Substitute Senate Bill 295 enactment of Ohio Revised Code ' with the Amended Substitute House Bill 224 amendments; and IT IS FURTHER ORDERED that in-person early voting IS RESTORED on the three days immediately preceding Election Day for all eligible Ohio voters. And specifically, for the purposes of the 2012 General Election, this Order restores in-person early voting to all eligible Ohio voters on Saturday, November 3, 2012; Sunday, November 4, 2012; and Monday, November 5, This Court anticipates that Defendant Secretary of State will direct all Ohio elections boards to maintain a specific, consistent schedule on those three days, in keeping with his earlier directive that only by doing so can he ensure that Ohio s election process is uniform, accessible for all, fair, and secure. IT IS SO ORDERED. /s/ Peter C. Economus PETER C. ECONOMUS UNITED STATES DISTRICT JUDGE 23 58a

60 Case: 2:12-cv PCE-NMK Doc #: 1 Filed: 07/17/12 Page: 1 of 21 PAGEID #: 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION OBAMA FOR AMERICA, : Case No. 2:12cv00636 DEMOCRATIC NATIONAL : COMMITTEE and : OHIO DEMOCRATIC PARTY, : : Plaintiffs, : v. : : JON HUSTED, in his official capacity : as Ohio Secretary of State, and : MIKE DEWINE, in his official capacity : as Ohio Attorney General, : : Defendants. : : COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiffs, by their attorneys, file this complaint against Defendants and allege as follows: Nature of Action 1. Plaintiffs bring this lawsuit to restore in-person early voting for all Ohioans during the three days prior to Election Day a right exercised by an estimated 93,000 Ohioans in the last presidential election. Ohio election law, as currently enacted by the State of Ohio and administered by Defendant Ohio Secretary of State, arbitrarily eliminates early voting during the three days prior to Election Day for most Ohio voters, a right previously available to all Ohio voters. This disparate treatment violates 42 U.S.C and the Equal Protection Clause of the Fourteenth 1 59a

61 Case: 2:12-cv PCE-NMK Doc #: 1 Filed: 07/17/12 Page: 2 of 21 PAGEID #: 2 Amendment to the United States Constitution and can be rectified by the Court enjoining enforcement of statutory changes that eliminate early in-person voting for most Ohioans during the three days before an election. 2. Specifically, taken together, Amended Substitute House Bill Number 194 ( HB 194 ), Amended Substitute House Bill Number 224 ( HB 224 ) and Substitute Senate Bill Number 295 ( SB 295 ), all enacted by the 129 th Ohio General Assembly, impose different deadlines for in-person voting prior to Election Day ( early voting ) on similarly situated voters. Prior to the enactment of these laws, there was a single uniform deadline of the Monday before Election Day for inperson early voting. After the enactment of these laws, voters using the Uniformed and Overseas Citizens Absentee Voter Act ( UOCAVA ) may vote early in-person at a board of elections office up through the Monday before Election Day, while non-uocava voters can vote early in-person at a board of elections office (or designated alternate site) only up until 6 p.m. on the Friday before Election Day. 3. The differential treatment of UOCAVA and non-uocava voters with respect to early voting appears to be the result of a confused legislative process initiated by the Ohio General Assembly after citizens of the State commenced the process to subject HB 194 to a referendum. HB 194 was a 300-page bill passed by a Republicandominated legislature that limited voting rights in a number of respects, including by shortening the time period for early voting an option more likely to be used by groups of voters that tend to support Democratic candidates. While the referendum 2 60a

62 Case: 2:12-cv PCE-NMK Doc #: 1 Filed: 07/17/12 Page: 3 of 21 PAGEID #: 3 petitions on HB 194 were circulating, the Ohio General Assembly passed HB 224 with technical corrections to the early in person voting laws. Then, after Ohio citizens exercised their right to hold a referendum vote on HB 194 by qualifying for the general election ballot, the Ohio General Assembly passed SB 295 to repeal HB 194, but failed to also repeal the corresponding technical corrections made by HB 224 in the interim. Whether caused by legislative error or partisan motivation, the result of this legislative process is arbitrary and inequitable treatment of similarlysituated Ohio voters with respect to in-person early voting. 4. The Ohio General Assembly has failed to articulate any justification for this differential treatment of UOCAVA and non-uocava voters, and no justification can be discerned. Indeed, these different deadlines exist despite the fact that, for purposes of in-person early voting, both UOCAVA and non-uocava voters are identically situated, i.e., they are qualified electors who are physically present in their home county when they desire to vote in-person at their county board of elections office prior to Election Day. 5. This inequitable approach to early voting will have a significant impact on voters. Between 2005 and 2011, Ohio successfully administered an early-voting system that included in-person voting in the three days prior to Election Day. This early voting system increased participation among voters, including those for whom work or family obligations make it difficult to vote on Election Day, and reduced the congestion that caused such severe waits during the 2004 presidential election in 3 61a

63 Case: 2:12-cv PCE-NMK Doc #: 1 Filed: 07/17/12 Page: 4 of 21 PAGEID #: 4 Ohio that some citizens were effectively denied the right to vote. Indeed, as noted above, approximately 93,000 Ohioans voted in the three days prior to the 2008 presidential election. Now, as a result of HB 224 and SB 295, most Ohio voters will not be permitted to vote in the three days prior to Election Day for no apparent reason. Without early voting in these last three days before Election Day, tens of thousands of citizens who would have otherwise exercised their right to vote during this time period, including Plaintiffs members and supporters, may not be able to participate in future elections at all. 6. This unequal burden on the fundamental right to vote violates the Equal Protection Clause of the United States Constitution. Plaintiffs have no plain, adequate, or complete remedy at law other than the relief requested in this Complaint. Unless the changes made to Ohio Rev. Code by HB 224 and SB 295 are enjoined by this Court, Plaintiffs and the voters they represent will be directly and irreparably harmed in upcoming elections. 7. For these reasons and those specifically alleged herein, Plaintiffs seek a declaratory judgment, preliminary injunction, and permanent injunction prohibiting Defendants from implementing or enforcing the HB 224 and SB 295 changes to Ohio Rev. Code , thereby restoring in-person absentee voting on the three days immediately preceding Election Day for all Ohio voters. 4 62a

64 Case: 2:12-cv PCE-NMK Doc #: 1 Filed: 07/17/12 Page: 5 of 21 PAGEID #: 5 Parties 8. Plaintiff OBAMA FOR AMERICA is the principal campaign committee of President Barack Obama as he seeks re-election as President of the United States. Nearly 550,000 Ohio citizens voted for President Obama in the March 2012 Democratic Primary. Many of these voters will elect to cast their ballots early for the general election, but will be unable to do so in the three days prior to Election Day as a result of HB 224 and SB 295. Obama for America is headquartered in Chicago, Illinois, and has offices in Ohio and throughout the country. 9. Plaintiff DEMOCRATIC NATIONAL COMMITTEE is an unincorporated association, with its principal place of business in Washington, DC. The Democratic National Committee ( DNC ) is the governing body of the Democratic Party of the United States. The DNC actively supports Democratic candidates in federal, state, and local elections in Ohio and throughout the nation, including by educating and organizing citizens to cast their votes for Democratic Party candidates. 10. Plaintiff OHIO DEMOCRATIC PARTY is a political party organization dedicated to electing candidates of the Democratic Party to public office throughout the State of Ohio. The Ohio Democratic Party has hundreds of thousands of members from across the state, including many eligible voters, who regularly support and vote for candidates affiliated with the Ohio Democratic Party. Many of these registered voters are likely to cast their votes during Ohio s early vote period. 5 63a

65 Case: 2:12-cv PCE-NMK Doc #: 1 Filed: 07/17/12 Page: 6 of 21 PAGEID #: As a result of the unequal early voting deadlines imposed by HB 224 and SB 295, Plaintiffs will be required to divert resources to voter education and turnout during a crucial time period. The confusion created by these various enactments, a referendum, and then repeal, has left voters uncertain about the state of affairs and possibly discouraged from voting. Plaintiffs will have to conduct significant voter outreach and education programs, which will require the diversion of personnel and financial resources, to explain to supporters that in-person early voting is no longer allowed in the last three days prior to Election Day and to encourage supporters to vote in the time periods available. 12. Many of Plaintiffs members and supporters, which include Ohio registered voters, have previously cast their votes during the last three days of Ohio s early vote period. They will be significantly burdened in their ability to cast their ballots if they are unable to vote during the three days prior to the general election, and some will be unable to do so. 13. Defendant JON HUSTED ( Secretary of State or Defendant ) is the Secretary of State of Ohio and is sued in his official capacity. Pursuant to Ohio Rev. Code , the Secretary of State is the chief election official of the State of Ohio, and, as such, is responsible for the administration of state laws affecting voting, and for assuring that elections in the state are conducted in accordance with the law. His principal office is in Columbus, Ohio. 6 64a

66 Case: 2:12-cv PCE-NMK Doc #: 1 Filed: 07/17/12 Page: 7 of 21 PAGEID #: Defendant MIKE DEWINE ( Attorney General or Defendant ) is the Attorney General for the State of Ohio. Pursuant to Ohio Rev. Code , the Attorney General is the chief law officer of the State and represents the State of Ohio in all legal matters. Jurisdiction and Venue 15. This Court has jurisdiction over the subject matter of this action under 28 U.S.C. 1331, 1343(a)(3), 1343(a)(4), 2201, and 2202, as well as 42 U.S.C Venue is proper in this Court pursuant to 28 U.S.C. 1391(b) because a substantial A. Early Voting In Ohio part of the direct and immediate harm faced by Plaintiffs and Plaintiffs members and supporters is threatened in this judicial district, and both Defendants have their principal offices in this judicial district. Factual Allegations 17. Ohio has a history of troubled elections, most notably the 2004 Presidential race. The administration of that election in Ohio earned the State widespread notoriety for its seven plus hour lines to vote, machine shortages and malfunctions, and a wide assortment of other problems that led to the disenfranchisement of thousands of voters. 18. In League of Women Voters of Ohio v. Brunner, 548 F.3d 463 (6th Cir. 2008), the Sixth Circuit detailed the conditions described by the plaintiffs: Voters were forced to wait from two to twelve hours to vote because of inadequate allocation of voting machines. Voting machines were not allocated 65a 7

67 Case: 2:12-cv PCE-NMK Doc #: 1 Filed: 07/17/12 Page: 8 of 21 PAGEID #: 8 Id. at proportionately to the voting population, causing more severe wait times in some counties than in others. At least one polling place, voting was not completed until 4:00 a.m. on the day following election day. Long wait times caused some voters to leave their polling places without voting in order to attend school, work, or to family responsibilities or because a physical disability prevented them from standing in line. Poll workers received inadequate training, causing them to provide incorrect instructions and leading to the discounting of votes. In some counties, poll workers misdirected voters to the wrong polling place, forcing them to attempt to vote multiple times and delaying them by up to six hours. Provisional balloting was not utilized properly, causing 22% of provisional ballots cast to be discounted, with the percentage of ballots discounted reaching 39.5% in one county. Disabled voters who required assistance were turned away. 19. In 2005, through Substitute House Bill 234, Ohio enacted universal, also known as no fault, absentee voting, in part to address problems from the 2004 election. The law allows voters to request an absentee ballot without stating a reason. Although it permits voters to cast their ballots by mail, it also provides the option of voting in person at a Board of Elections or other site designated by the Board of Elections prior to Election Day. 20. According to a study by the Ray C. Bliss Institute of Applied Politics at the University of Akron in 2011, the change to no fault absentee voting in Ohio led to a noticeable increase in early voting. See Ray C. Bliss Institute of Applied Politics at University of Akron, A Study of Early Voting in Ohio, located at at 2. The Institute acquired the following information from the Ohio Secretary of State. 8 66a

68 Case: 2:12-cv PCE-NMK Doc #: 1 Filed: 07/17/12 Page: 9 of 21 PAGEID #: 9 Early Voting in Ohio, 2006, 2008, and 2010 (plus absentee votes in 2002, 2004) Year Number Absentee Voters % of Registered Voters % of Vote Cast , % 6.8% , % 10.6% , % 15.3% ,717, % 29.7% ,021, % 25.8% Id. 21. From 2002 to 2010 the number of early voters (both in person and by mail) increased from 229,512 to 1,021,865. Id. In 2008, over 490,000 people voted early in-person. See Testimony of Ellis Jacobs, Senior Attorney at Advocates for Basic Legal Equality, on March 21, 2012 (citing Data Compiled by Norman Robbins at Northeast Ohio Voter Advocates, Elections are About Voters, but Legislative Measure Under Consideration Ignores Voting Preferences). In 2010, 29.6% of the early votes were cast within one week of Election Day, making it the largest period of early voting. See A Study of Early Voting in Ohio, supra, at The last three days of early voting have a very high turnout rate. For the Presidential race in 2008, approximately 93,000 people voted in person during this period. 23. Based on 2010 numbers, the study also found that early voters are: 1) older than election-day voters; 2) much more likely to be women than election-day voters, and; 3) tend to have lower income than election-day voters. See A Study of Early Voting in Ohio, supra, at In testimony before the Ohio House of Representatives, Eric Marshall of the Lawyers Committee for Civil Rights Under Law explained that early in-person voting in Ohio has led to the enfranchisement of people who otherwise might not 9 67a

69 Case: 2:12-cv PCE-NMK Doc #: 1 Filed: 07/17/12 Page: 10 of 21 PAGEID #: 10 vote at all, including those voters that have real difficulty getting to the polls on Election Day due to job or family commitments or transportation problems. Eric Marshall Testimony (May 10, 2011). Marshall also noted that such Early voting provides critical relief to ease congestion and burdens at the polls on Election Day, which is crucially important in light of Ohio s history of long lines and Election Day confusion and break downs. Id. B. Enactment of HB HB 194, an omnibus election law bill, was signed into law by Governor Kasich on July 1, 2011, with an effective date of September 30, Among the many changes in HB 194 was the attempted removal of the last three days of early voting prior to Election Day. Ohio Rev. Code The bill also contained other measures limiting voters rights. For example, the bill eliminated the requirement that poll workers direct voters to the correct precinct and inform them that their ballots are not counted if they vote at an incorrect location. Ohio Rev. Code Furthermore, it prohibited boards of elections from mailing absentee voter forms to voters or pay the return postage on such forms. Ohio Rev. Code While the bill was pending in the General Assembly, testimony was offered against it. For example, Eric Marshall testified that reducing the early vote period will make it less likely that some Ohio residents will exercise that right to vote. See Eric Marshall Testimony (May 10, 2011). 68a 10

70 Case: 2:12-cv PCE-NMK Doc #: 1 Filed: 07/17/12 Page: 11 of 21 PAGEID #: Votes in both the House and the Senate split along party lines with Republicans voting in favor and Democrats against the bill. C. Referendum of HB After HB 194 was enacted, Democratic legislators, voting rights advocates, labor unions, and progressive organizations began gathering signatures to put the measure to a referendum pursuant to the Ohio Constitution. Under Article II, Section 1 of the Ohio Constitution, the people of Ohio have the power to adopt or reject [general assembly laws] at the polls on a referendum vote. Supporters of the referendum needed 231,150 voters to sign the petition; they were able to amass over 300,000 signatures from the citizens of Ohio. In addition, they were required to collect signatures from at least 44 of Ohio s 88 counties, and within each of those counties collect signatures equal to three percent of the total vote cast for governor in the 2010 gubernatorial election; they were able to meet or exceed the three percent threshold in 64 counties. See On December 9, 2011, the Secretary of State certified the referendum. As a result, HB 194 would not be effective until a majority of the electors approve it. The referendum is expected to be on the ballot in November D. Enactment of HB In the interim period while signatures on the referendum were being gathered, yet another election law bill was passed: HB 224, which was signed by Governor 69a 11

71 Case: 2:12-cv PCE-NMK Doc #: 1 Filed: 07/17/12 Page: 12 of 21 PAGEID #: 12 Kasich on July 27, Although the bill focused primarily on easing burdens for absent military and overseas voters subject to UOCAVA, another purpose of the bill was to make technical corrections to the laws governing elections. See HB Technical corrections were necessary because, as a result of legislative oversight in HB 194, two sections of the Revised Code dealing with the deadline for in-person early voting for non-uocava voters were inconsistent with each other. HB 194 had added totally new language to Ohio Rev. Code ending the in-person early voting period for non-uocava voters on the Friday before the election at 6 p.m, even though the existing deadline was contained in a different section of the Revised Code. The General Assembly did not change the language in Ohio Rev. Code ; that provision set the end time for in-person early voting by non- UOCAVA voters at close of business the day before an election. HB 224 included technical amendments to Ohio Rev. Code to bring this provision of the Code in line with HB 194, i.e., it moved the deadline to Friday at 6 p.m. 33. HB 224 also included technical corrections related to the deadline for early in person voting by UOCAVA voters. HB 194 had apparently sought to change the in-person early voting deadline for UOCAVA voters to also be the Friday before the election by amending Ohio Rev. Code However, it did not amend Ohio Rev. 1 Despite the fact that HB 224 imposed similar restrictions on early voting as those contained in HB 194, HB 224 was not subject to referendum because it was enacted as an emergency bill and thus was exempt under Article II, Section 1(d) of the Ohio Constitution a

72 Case: 2:12-cv PCE-NMK Doc #: 1 Filed: 07/17/12 Page: 13 of 21 PAGEID #: 13 Code , which permitted in-person early voting by UOCAVA voters through the day before the election. In HB 224, the Ohio General Assembly included a technical correction to Ohio Rev. Code to also shorten the deadline for UOCAVA voters to the Friday before the election. E. Enactment of SB 295 to Repeal HB In January 2012, after the passage of HB 224 and the certification of the referendum petition on HB 194, the Secretary of State and Republican members of the General Assembly announced a plan to repeal HB 194 while it was awaiting a referendum by the people. Senate President Tom Niehaus informed the public that the Senate planned to repeal the bill and then replace it with a new bill that would include many of the same provisions and restrictions. See Sen. Neihaus Statement on Repeal of Election Reform Bill (Feb. 9, 2012), available at (last visited July 12, 2012); Joe Guillen, Ohio Senate Republicans plan to repeal controversial elections law, Cleveland Plain Dealer (Feb. 9, 2012), available at html (last visited July 12, 2012). The repeal bill, SB 295, unprecedented in Ohio history, was passed by the General Assembly on May 8, 2012 and signed by the Governor on May 15, Although SB 295 effectively repealed the changes made to the in-person early voting deadlines by HB 194 by eliminating the new more restrictive language in Ohio Rev a

73 Case: 2:12-cv PCE-NMK Doc #: 1 Filed: 07/17/12 Page: 14 of 21 PAGEID #: 14 Code , it did not repeal the conforming changes made by HB 224 to Ohio Rev. Code and As a result, following the passage of HB 224 and SB 295, one in-person early voting deadline exists for non-uocava voters: 6 p.m. on the Friday before an election. Ohio Rev. Code (as amended by HB 224). But two in-person early voting deadlines exist for UOCAVA voters: 6 p.m. on the Friday before an election, Ohio Rev. Code (as amended by HB 224) and the close of the polls on Election Day, Ohio Rev. Code (following the repeal of HB 194 by SB 295). The Ohio General Assembly has not articulated any justification for the differential treatment of these two groups of voters who are identically situated with respect to early in-person voting. Nor has the General Assembly addressed the conflicting deadlines for UOCAVA voters. F. Secretary of State s Advisory 36. Even before the passage of SB 295, however, it was clear that there would be conflicting deadlines for in-person early voting if the referendum petition on HB 194 was successful (and the effective date of HB 194 was suspended as a result). On October 14, 2011, the Secretary of State issued Advisory to the County Boards of Elections, in part to address conflicting early voting deadlines. According to the Advisory: In-person absentee voting ends at 6 p.m. the Friday before the election for non-uniformed military and overseas voters. Ohio Rev. Code The Advisory provided a different end time for UOCAVA voters. It noted that those voters may vote in-person absentee until the close of the polls on the day of the 72a 14

74 Case: 2:12-cv PCE-NMK Doc #: 1 Filed: 07/17/12 Page: 15 of 21 PAGEID #: 15 general or primary election. They must vote at the board of elections office between 6 p.m. the Friday before the election and the close of the polls on the day of the election. Ohio Rev. Code In essence, the Secretary of State appropriately resolved the conflict between the two in-person early voting deadlines for UOCAVA voters in favor of the more generous time period On October 25, 2011, the Secretary of State sent a letter to the Director and Deputy Director of the Montgomery County Board of Elections in response to a tie vote at that Board as to whether to extend its regular business hours to permit non- UOCAVA in-person absentee voting on the Saturday through the Monday prior to the November election. The Secretary of State broke the tie against the motion to permit in-person absentee voting for non-uocava voters during this time period. 38. The Secretary of State denied a similar motion on October 27, 2011, for the Darke County Board of Elections. In both instances he cited to Ohio Rev. Code as prohibiting him from authorizing voting during this window of time for non- UOCAVA voters. 39. Following the Secretary of State s Advisory, protests ensued at a number of county boards of elections. Democratic lawmakers also contacted the Secretary of State, asking him to reinstate in-person early voting at county Boards of Elections through the Monday before the election. The Secretary of State refused these requests. See 2 Because the referendum on HB 194 and the repeal of 194 by SB 295 have the same practical effect, the Advisory remains in effect a

75 Case: 2:12-cv PCE-NMK Doc #: 1 Filed: 07/17/12 Page: 16 of 21 PAGEID #: 16 Press Release, House Democratic Caucus Communications, Dem Lawmakers Tell Secretary Husted Don t Cut Off Early Voting (Oct. 15, 2011), available at The concern about having two classes of voters with different access to the polls was raised several times through legislative testimony. For example, Carrie L. Davis, Executive Director of the League of Women Voters of Ohio, brought it to the General Assembly s attention in her legislative testimony on March 21, Davis explained the history of HB 194 and HB 224 and the confusion that resulted from the conflicting provisions. She warned the General Assembly, Passing a straight repeal of provisions that were only in HB 194 without addressing the technical changes made in HB 224 continues the inconsistency problem, wherein sections of the voting law conflict with one another. The General Assembly did not address these issues. 41. Also, in both the Senate and House, Democrat-sponsored amendments to return voting to the status quo as it existed prior to HB 194 which would extend early voting through the three days prior to Election Day for all eligible Ohio voters. These amendments were voted down by the Republican-controlled majority in both chambers. 42. As a result of the confused state of the Ohio election law on early voting, Plaintiffs will be forced to spend considerable resources educating their members and supporters about the early voting deadlines and encouraging them to vote a

76 Case: 2:12-cv PCE-NMK Doc #: 1 Filed: 07/17/12 Page: 17 of 21 PAGEID #: Because so many Ohioans rely on the early vote period, specifically the last three days before an election, to cast their ballot, and are unable to wait on the long lines that have historically plagued federal elections in Ohio, they will be unable to vote, unless an injunction issues against the amendments to Ohio Rev. Code made by HB 224 and SB 295 that eliminate early voting during the three days prior to Election Day. See Testimony of Eric Marshall, Manager of Legal Mobilization, Lawyers Committee for Civil Rights Under Law, on May 10, CAUSE OF ACTION (Violation of 42 U.S.C and the Fourteenth Amendment) 44. Plaintiffs reallege each allegation contained in each of the paragraphs above as if fully set forth herein. 45. The Constitution of the United States protects the right of all qualified citizens to vote in elections for federal office. The right to vote, one of the most important rights in our democratic society, is fundamental. It is protected by Articles I and II of the Constitution, the First and Fourteenth Amendments, and numerous federal statutes. 46. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution guarantees qualified voters a substantive right to participate equally with other qualified voters in the electoral process. This equal right to vote is protected in more than the initial allocation of the franchise; equal protection applies to the manner of its exercise as well. See Hunter v. Hamilton County Bd. of Elections, 635 F.3d 219, 234 (6th Cir. 2011) (quoting Bush v. Gore, 531 U.S. 98, 17 75a

77 Case: 2:12-cv PCE-NMK Doc #: 1 Filed: 07/17/12 Page: 18 of 21 PAGEID #: (2000)). A state may not arbitrarily impose disparate treatment on similarly situated voters. 47. Thus, once the State of Ohio decides to provide voters with the right to vote early, it cannot arbitrarily grant that right to some voters and not others. 48. The passage of HB 224 and SB 295 created different in-person early voting deadlines for two groups of voters: UOCAVA voters may vote early up to the close of polls on Election Day, but non-uocava voters may only vote early up to 6 p.m. on the Friday before Election Day. This disparate treatment of UOCAVA and non- UOCAVA voters is arbitrary: The Ohio General Assembly has not and cannot articulate any legitimate justification for the different deadlines. Both groups of voters are similarly situated: they are qualified electors physically present in their home county who must appear in person at the offices of the board of election in order to vote early. 49. Ohio has successfully administered early voting for five years, and there is no indication that the last three days of early voting caused any problems in election administration or voter fraud. To the contrary, the enactment of no fault absentee voting and this early vote window, particularly the three days prior to an election, has ameliorated many problems Ohio previously faced, such as unacceptably long voting lines on Election Day. 50. At best, the disparity is simply the inadvertent result of legislative confusion that left in place two different deadlines for UOCAVA and non-uocava voters, and even 18 76a

78 Case: 2:12-cv PCE-NMK Doc #: 1 Filed: 07/17/12 Page: 19 of 21 PAGEID #: 19 two deadlines for UOCAVA voters. At worst, the differential treatment has been influenced by partisan politics. Neither scenario presents a legitimate justification for the disparate treatment. 51. Even if the Ohio General Assembly could articulate a legitimate justification for the disparate treatment, any such reason would not outweigh the burden placed on most, but not all, Ohio voters who have been denied the right to vote in the three days prior to an election. 52. Thousands of Ohio voters, including Plaintiffs members and supporters, will suffer direct and irreparable injury from this differential treatment. These voters may effectively lose the opportunity to vote if they do not have the ability to do so in the three days prior to the election, a time period when turnout has been particularly heavy in the past. 53. By reason of the foregoing, Defendants, acting under color of state law, have deprived and will continue to deprive Plaintiffs of equal protection under the law secured to them by the Fourteenth Amendment to the United States Constitution and protected by 42 U.S.C PRAYER FOR RELIEF WHEREFORE, Plaintiffs request of this Court the following equitable relief: A. An order declaring that lines 863 and 864 of Sec (I) in HB 224, which amended Ohio Revised Code by changing the deadline for in-person early voting from the close of business on the day before Election 19 77a

79 Case: 2:12-cv PCE-NMK Doc #: 1 Filed: 07/17/12 Page: 20 of 21 PAGEID #: 20 Day to 6 p.m. on the Friday before Election Day, and the SB 295 enactment of Ohio Revised Code with the HB 224 amendments, violate the Equal Protection Clause of the United States Constitution; B. A preliminary and permanent order prohibiting the Defendants, their respective agents, servants, employees, attorneys, successors, and all persons acting in concert with each or any of them, from implementing or enforcing lines 863 and 864 of Sec (I) in HB 224, and/or the SB 295 enactment of Ohio Revised Code with the HB 224 amendments, thereby restoring in-person early voting on the three days immediately preceding Election Day for all eligible Ohio voters; C. Attorney fees and costs; D. Such other and further relief as this Court may deem necessary or proper. Respectfully submitted, /s/ DONALD J. McTIGUE Donald J. McTigue ( ) Trial Counsel Mark A. McGinnis ( ) J. Corey Colombo ( ) McTigue & McGinnis LLC 545 East Town Street Columbus, Ohio Tel: (614) Fax: (614) dmctigue@electionlawgroup.com mmcginnis@electionlawgroup.com ccolombo@electionlawgroup.com 20 78a

80 Case: 2:12-cv PCE-NMK Doc #: 1 Filed: 07/17/12 Page: 21 of 21 PAGEID #: 21 Attorneys for Plaintiffs Robert F. Bauer* Perkins Coie 700 Thirteenth Street, Suite 600 Washington DC Tele: Fax: RBauer@perkinscoie.com General Counsel for Plaintiffs Obama for America and the Democratic National Committee Jennifer Katzman* Obama for America 130 East Randolph Chicago, IL Tele: jkatzman@barackobama.com National Voter Protection Counsel for Plaintiff Obama for America * Motions for Admission Pro Hac Vice forthcoming 79a 21

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133 Case: 2:12-cv PCE-NMK Doc #: 40-1 Filed: 08/15/12 Page: 1 of 2 PAGEID #: 1480 DIRECTIVE August 15, 2012 To: Re: All County Boards of Elections Directors, Deputy Directors, and Board Members In Person Absentee Voting Days and Hours BACKGROUND Local election administration in Ohio is governed by four-member, bipartisan bodies: the 88 county boards of elections. This contrasts with most other states, where local elections administration is governed by one person (often an elected partisan, but sometimes an appointee) or an odd-numbered board controlled by one party or the other. Ohio s bipartisan county boards of elections act by majority vote to establish local rules and procedures not inconsistent with state law. When a board of elections deadlocks on a matter, such as hours of operation, the tie is submitted to the Secretary of State who must resolve the matter as a function of state law. Under state law, voters may apply in person to vote an absentee ballot during these locally established hours of operation beginning the 35 th day before the election and ending at 6:00 p.m. the Friday before the election. Having local boards of elections establish voting hours ensures a level of local control that is reflective of local resources. However, it also creates a patchwork of policies from one county to the next. For this reason, in 2011, I urged the Ohio General Assembly to create uniform days and hours for in person absentee voting across the state. The result was House Bill 194, which was suspended by referendum and later repealed by the General Assembly. Absent a statutory mandate for uniformity, I urged boards of elections to find local compromise on days and hours during my summer regional elections conferences. However, four tie votes have since come to my office on this matter. In each, I have resolved the controversy by setting voting hours to the Board s existing office hours to avoid having a state actor establish voting hours differently in different counties, as was done in a

134 Case: 2:12-cv PCE-NMK Doc #: 40-1 Filed: 08/15/12 Page: 2 of 2 PAGEID #: 1481 Directive In Person Absentee Voting Days and Hours Page 2 of 2 However, after talking with elections officials across the state, I have decided to level the playing field on voting days and hours during the absentee voting period in order to ensure that the Presidential Election in Ohio will be uniform, accessible for all, fair, and secure. INSTRUCTIONS I hereby direct all county boards of elections to adopt the following as their regular business hours: 8:00 a.m. to 5:00 p.m., Tuesday through Friday, from October 2, through October 5, 2012; 8:00 a.m. to 9:00 p.m., Tuesday, October 9, 2012; 2 8:00 a.m. to 5:00 p.m., Wednesday through Friday, from October 10, 2012 through October 12, 2012; 8:00 a.m. to 5:00 p.m., Monday through Friday, from October 15, 2012 through October 19, 2012; 8:00 a.m. to 7:00 p.m., Monday through Friday, from October 22, 2012 through October 26, 2012; 8:00 a.m. to 7:00 p.m., Monday through Thursday, October 29, 2012 through November 1, 2012; and 8:00 a.m. to 6:00 p.m., Friday, November 2, Any voter of the county may request and vote an absent voter s ballot (or a provisional ballot beginning October 10, 2012) in person during these regular business hours. Any voter in line at the end of the regular business hours must be permitted to make their application and vote. All boards of elections must be closed on Monday, October 8, 2012 in observance of a state holiday. 4 If you have any questions concerning this Directive, contact the Secretary of State s elections attorney assigned to your county at (614) Sincerely, Jon Husted 1 R.C ; non-uocava absentee ballots must be ready. 2 R.C (B) 3 R.C ; this statute requires boards to close at 6 p.m. the Friday before Election Day. 4 R.C. 1.14; if Boards were not closed on this day, voter registration would end on October 8, a