Case: 2:12-cv ALM-TPK Doc #: 27 Filed: 07/06/12 Page: 1 of 21 PAGEID #: 3550

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1 Case: 2:12-cv ALM-TPK Doc #: 27 Filed: 07/06/12 Page: 1 of 21 PAGEID #: 3550 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO FOR THE EASTERN DIVISION SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1, et al. Plaintiffs, v. JON HUSTED, et al. Defendants. : : : : : : Case No.: 2:12-cv-562 Judge Algenon L. Marbley DEFENDANT TIMOTHY M. BURKE S MEMORANDUM IN OPPOSITION TO PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION DEFENDANT S MEMORANDUM IN OPPOSITION Defendant Timothy M. Burke, in his official capacity as member of the Hamilton County Board of Elections, opposes Plaintiffs Motion for a Preliminary Injunction for the reasons set forth in the attached Memorandum. JOSEPH T. DETERS PROSECUTING ATTORNEY HAMILTON COUNTY, OHIO BY: /s/ David T. Stevenson David T. Stevenson Colleen M. McCafferty Assistant Prosecuting Attorneys 230 East Ninth Street, Suite 4000 Cincinnati, Ohio (513) (Stevenson) (513) (McCafferty) Fax: (513) dave.stevenson@hcpros.org colleen.mccafferty@hcpros.org Attorneys for Hamilton County Board of Elections

2 Case: 2:12-cv ALM-TPK Doc #: 27 Filed: 07/06/12 Page: 2 of 21 PAGEID #: 3551 MEMORANDUM IN OPPOSITION I. INTRODUCTION Plaintiffs seek a preliminary injunction requiring Ohio and its County Boards of Elections to count the votes of lawfully registered voters in the upcoming election [as] is both necessary and appropriate to ensure that voters, including Plaintiffs members, are not arbitrarily and unfairly stripped of their right to vote as a result of poll worker error. (Doc. 4, Motion for Prelim. Inj., pp. 2-3.) The Ohio Supreme Court in Painter, 128 Ohio St.3d 17, provided that no wrong precinct ballot may be counted regardless of poll worker error. Given this definitive statement of Ohio law, this Court is bound to either accept the Ohio Supreme Court s ruling or declare Ohio s provisional voting laws unconstitutional. II. ARGUMENT Defendant Timothy M. Burke, in his official capacity as a member of the Hamilton County Board of Elections ( Burke ) incorporates herein by reference the arguments set forth in the Response of Defendant Secretary of State Jon Husted. A. Standard of Review A district court must consider four factors when determining whether to grant or deny a preliminary injunction: (1) the plaintiff's likelihood of success on the merits; (2) whether the plaintiff may suffer irreparable harm absent the injunction; (3) whether granting the injunction will cause substantial harm to others; and (4) the impact of an injunction upon the public interest. Deja Vu of Nashville, Inc. v. Metro. Gov't of Nashville & Davidson County, Tennessee, 274 F.3d 377, 400 (6th Cir. 2001). Plaintiffs have not met their burden. 1

3 Case: 2:12-cv ALM-TPK Doc #: 27 Filed: 07/06/12 Page: 3 of 21 PAGEID #: 3552 B. Plaintiffs Are Not Likely to Succeed on the Merits Plaintiffs argue an equal protection violation exists, in part, since the NEOCH Consent Decree created a situation in which certain voters are treated differently than others. The Service Employees International Union (SEIU) is a plaintiff in this case and in NEOCH v. Husted, Case No. 2:06-cv-896. While this case involves SEIU, Locals 1, 863, and 1005 and NEOCH v. Husted involves SEIU, Local 1199, the interests of these local divisions are the same. Since this case has been consolidated with NEOCH v. Husted, Plaintiffs are precluded from arguing a contrary position herein. Plaintiffs cannot have it both ways either disparate treatment is warranted for voters who lack valid identification under Ohio law or such treatment is a constitutional violation. Plaintiffs further urge this Court to declare that Ohio s provisional voting law severely burdens the right to vote by mandating the rejection of wrong precinct ballots due to poll worker error and mandating the rejection of ballots for technical errors. Plaintiffs have not offered persuasive rationales to support such a shift in Ohio law. 1. Evidence Presented Does Not Support a Finding that Poll Worker Error Causes Wrong Precinct Voting Plaintiffs repeatedly boast that virtually all wrong precinct ballots are given to voters as a result of poll workers making mistakes on election day. There is simply no basis in fact for this exaggeration. In the recent case of Hunter v. Hamilton County Board of Elections, 2012 WL , referred to as Hunter II, the court held that it was a violation of equal protection for the Board to consider poll worker error with regard to the ballots cast at the Board s offices, but not consider poll worker error with regard to wrong precinct ballots cast at the correct polling location on election day. Because of this unequal treatment, the Board was ordered to count the ballots cast at the wrong precinct, 2

4 Case: 2:12-cv ALM-TPK Doc #: 27 Filed: 07/06/12 Page: 4 of 21 PAGEID #: 3553 but correct location in the November 2010 election for Juvenile Court judge. It is significant to note that the court never determined that poll worker error caused these ballots to be cast in the wrong precinct. In fact, the court made no finding with regard to poll worker error. The court s ruling was dependent upon the Board s unequal treatment of two categories of provisional ballots. See Hunter II, 2012 WL at 41; Hunter v. Hamilton County Board of Elections, Case No. 1:10-cv-820, Doc. 39, Order 1/12/11 at 10 ( This court is not holding that ballots cast in a precinct where a voter does not reside must be considered legal votes.) It is, therefore, inaccurate for the Plaintiffs to rely on the court s decision in Hunter II to prove that poll worker error causes provisional ballots to be cast in the wrong precinct. This Court also cannot infer from the testimony taken during Hunter II to prove the existence of poll worker error for a number of reasons. First, the evidence was taken from 50 poll workers from 47 different precincts. Those 50 poll workers processed 248 of the approximately 10,500 provisional ballots cast on election day. Second, with very few exceptions, these voters could not recall any specific ballot or voter they processed on election day. Third, testimony was only taken with regard to 17 voters. Fourth, none of this evidence was available to the Board when it made its determination whether to count these ballots. Lastly, even if it can be inferred that poll worker error caused the wrong precinct ballots to be cast in the correct polling location, the court order resulted in 289 out of 850 wrong precinct ballots being counted. This hardly amounts to virtually all. Furthermore, the evidence in Hunter II showed that there are many reasons, exclusive of poll worker error, why voters cast a provisional ballot in the wrong precinct. The voter may have decided to vote at the precinct they had always voted in based upon a 3

5 Case: 2:12-cv ALM-TPK Doc #: 27 Filed: 07/06/12 Page: 5 of 21 PAGEID #: 3554 prior residence address that was not in the same precinct as their new address. (Hunter II, 1:10-cv-00820, Doc. 140, Hr g Tr., Ornelas, p , attached as Exhibit C; Hunter II, 1:10-cv-00820, Doc. 142, Hr g Tr., Joiner, p. 6-30, attached as Exhibit D.) The voter could have received a card in the mail from another organization informing them to vote in the incorrect precinct. (Hunter II, 1:10-cv-00820, Doc. 130, Hr g Tr., Chapman, p , attached as Exhibit E.) The voter may not have been given their correct precinct by any poll workers because each poll worker believed that another worker had already looked up the voter s address and given the voter their correct precinct. (Hunter II, 1:10-cv-00820, Doc. 122, Hr g Tr., Horton, p , attached as Exhibit F; Hunter II, 1:10-cv-00820, Doc. 128, Hr g Tr., Lynem, p , attached as Exhibit G.) The voter could have moved before the election and never bothered to update their registration, thus never getting an updated precinct card from the Board. (Hunter II, 1:10-cv-00820, Doc. 159, Hr g Tr., Niestheide, p , attached as Exhibit H.) The voter may have voted in the wrong precinct even though the poll worker may have told her she was in the wrong place. (Hunter II, 1:10-cv-00820, Doc. 130, Hr g Tr., Burton, p , attached as Exhibit I.) Voter error also contributes to miscast provisional ballots and voters occasionally cast a provisional ballot in a location they know is not their correct precinct. Based upon this evidence, it cannot be concluded that virtually all wrong precinct provisional ballots are miscast due to poll worker error. Plaintiffs cannot support a claim that insufficient poll worker training is evidence that virtually all provisional ballots are miscast due to poll worker error. Dr. Tuchfarber, an expert in Hunter II, opined that poll-workers were well trained in good procedures to assist voters in the provisional voting process and handled themselves 4

6 Case: 2:12-cv ALM-TPK Doc #: 27 Filed: 07/06/12 Page: 6 of 21 PAGEID #: 3555 professionally with few exceptions and with a very high overall success rate of getting voters to the correct precinct. (Hunter II, 1:10-cv-00820, Doc. 165, Hr g Tr., Tuchfarber, pp ,85, attached as Exhibit A; Exhibit B, Preliminary Report of Tuchfarber, p.9.) The Hunter II court specifically addressed the plaintiff s failure-to-train claim and held that the plaintiffs had not met their burden of proving that the Board demonstrated deliberate indifference to the constitutional rights of voters. Hunter II, at 45. Therefore, evidence taken from the Hunter II trial to support a claim of failure-to-train by the Hamilton County Board of Elections should not be accepted. Indeed, the evidence adduced at the hearing in Hunter II showed that many mistakes are made on election day and that there are many factors which contribute to wrong precinct voting. (Exhibit B.1, Supplemental Report of A.J. Tuchfarber, PhD, p.2.) There are dozens, if not hundreds of different things that can happen to influence the way that a provisional ballot is actually ends up being cast. It begins long before the Election Day, depending on who the voters talk to, and it proceeds all the way through the time that they actually fill out the envelope and turn it in to one of the judges at the polling place.... (Hunter II, 1:10-cv-00820, Doc. 165, Hr g Tr., Tuchfarber, p , attached as Exhibit A.) 2. Evidence Presented Does Not Support a Finding that Multiple Precinct Polling Locations Causes Wrong Precinct Voting Plaintiffs are not likely to succeed on the claim that wrong precinct voting is due to the consolidation of precincts into multiple precinct polling locations. (Doc. 4, p. 32.) Statistical analysis, like the evidence relied on by Plaintiffs and in Hunter, will not suffice to support such a claim. Painter, 128 Ohio St.3d at 33; Hunter, 635 F.3d at 239. In the case of State ex rel. Yiamouyiannis v. Taft, 65 Ohio St. 3d 205 (1992), the Ohio Supreme 5

7 Case: 2:12-cv ALM-TPK Doc #: 27 Filed: 07/06/12 Page: 7 of 21 PAGEID #: 3556 Court found that the plaintiffs could not establish that signatures were improperly rejected by examining rejected signatures in one county office, establishing percentage of signatures deemed to be wrongfully rejected, and extrapolating results to other offices. Such evidence was insufficient to conclude that all boards of elections in Ohio commit errors at the same rate when reviewing petition signatures. Id. at 209. Likewise the rate of rejection statistics offered by Plaintiffs (Doc. 4-1, pp ) may not be relied upon to show that poll worker error causes wrong precinct voting at multiple precinct polling locations. Evidence from the Hamilton County November 2010 election shows that it cannot be concluded that the existence of multiple-precinct polling locations causes wrong precinct ballots to be cast. Q. Dr. Tuchfarber, much of this case does focus on provisional ballots cast in the correct location but in the wrong precinct, and this occurs at multiple-precinct polling locations. Specifically, it has been alleged that if a voter went to the correct location, it must have been poll worker error that caused a voter to cast a ballot in the wrong precinct, yet is it your opinion that "multiple precinct polling locations were not a significant or important cause of wrong precinct voting because such voting was equally prevalent in single-precinct polling locations"? A. That's correct (Hunter II, 1:10-cv-00820, Doc. 165, Hr g Tr., Tuchfarber, p , attached as Exhibit A.) 3. Ohio Provisional Voting Laws Must be Considered In Toto In their attempts to overhaul Ohio provisional ballot laws, Plaintiffs ignore fundamental elements of Ohio s provisional voting system. First, Plaintiffs disregard the numerous reasons for precinct voting as recognized by Sandusky County Democratic Party v. Blackwell, 387 F.3d 565, (6th Cir. 2004): 6

8 Case: 2:12-cv ALM-TPK Doc #: 27 Filed: 07/06/12 Page: 8 of 21 PAGEID #: 3557 One aspect common to elections in almost every state is that voters are required to vote in a particular precinct. Indeed, in at least 27 of the states using a precinct voting system, including Ohio, a voter's ballot will only be counted as a valid ballot if it is cast in the correct precinct. The advantages of the precinct system are significant and numerous: it caps the number of voters attempting to vote in the same place on election day; it allows each precinct ballot to list all of the votes a citizen may cast for all pertinent federal, state, and local elections, referenda, initiatives, and levies; it allows each precinct ballot to list only those votes a citizen may cast, making ballots less confusing; it makes it easier for election officials to monitor votes and prevent election fraud; and it generally puts polling places in closer proximity to voter residences. These advantages of precinct voting apply to federal, state, and local elections. Second, Section 302 of the Help America Vote Act (HAVA) states that voters must vote in their jurisdiction. The Sixth Circuit rejected the notion that a provisional voter should be considered an eligible voter regardless of where they cast their ballot: To read eligible under state law to vote so broadly as to mean not only that a voter must simply be eligible to vote in some polling place within the county, but remains eligible even after casting an improper ballot would lead to the untenable conclusion that Ohio must count as valid a provisional ballot cast in the correct county even it is determined that the voter in question had previously voted elsewhere in that county; an impropriety that would not render that voter ineligible based upon the district court's interpretation of HAVA. State law concerning eligibility to vote is not limited to facts about voters as they arise from slumber on election day; they also stipulate, for example, that a voter is eligible to vote only once in each election, and, in Ohio, where a voter is eligible to cast a ballot. In other words, being eligible under State law to vote means eligible to vote in this specific election in this specific polling place. Sandusky, 387 F.3d at 577. Third, Plaintiffs overlook the fact that provisional voters are voting provisionally on election day because their status as a properly registered voter is at issue when they cast a ballot. Only if a board of elections can determine that a provisional voter is registered under Ohio law may that voter s ballot be counted. Under Ohio law, qualified voter is defined as: Every citizen of the United States who is of the age of eighteen years or over and who has been a resident of the state thirty days immediately preceding the 7

9 Case: 2:12-cv ALM-TPK Doc #: 27 Filed: 07/06/12 Page: 9 of 21 PAGEID #: 3558 election at which the citizen offers to vote, is a resident of the county and precinct in which the citizen offers to vote, and has been registered to vote for thirty days, has the qualifications of an elector and may vote at all elections in the precinct in which the citizen resides. O.R.C (A) (emphasis added). As such, in Ohio, HAVA requires that a provisional ballot be issued only to voters affirming that they are eligible to vote and are registered to vote in the precinct in which they seek to cast a ballot. Sandusky, 387 F.3d at 576. If it cannot be determined that a voter is a qualified voter on election day, the voter is permitted to cast a provisional ballot pursuant to HAVA and O.R.C HAVA is quintessentially about being able to cast a provisional ballot. No one should be turned away from the polls, but the ultimate legality of the vote cast provisionally is generally a matter of state law. Any error by the state authorities may be sorted out later, when the provisional ballot is examined, in accordance with subsection (a)(4) of section But the voter casts a provisional ballot at the peril of not being eligible to vote under state law; if the voter is not eligible, the vote will then not be counted. Sandusky, 387 F.3d at 576. Fourth, Plaintiffs disregard any obligation that the voter has under Ohio law to only cast a ballot for the precinct in which they reside on election day. As stated by the Ohio Supreme Court: The plain language of several statutes so provides. See R.C (A) (every qualified elector may vote at all elections in the precinct in which the citizen resides ); R.C (C)(2)(a) (providing that if an individual refuses to travel to the polling place for the correct jurisdiction... [a] provisional ballot cast by that individual shall not be opened or counted if the individual is not properly registered in that jurisdiction ) and (E)(1) (defining jurisdiction for purposes of provisional-ballot provisions as the precinct in which a person is a legally qualified elector ); R.C (requiring each individual casting a provisional ballot to execute a written affirmation stating that he or she understand[s] that... if the board of elections determines that the individual is not a resident of the precinct in which the ballot was cast, the provisional ballot will not be counted); R.C (B)(4)(a)(ii) (if board determines that the individual named on the affirmation is not eligible to cast a ballot in the precinct or for the election in which the individual cast the provisional ballot, the provisional ballot envelope shall not be opened, and the ballot shall not be counted ); and R.C (A)(1) (prohibiting any person from voting or 8

10 Case: 2:12-cv ALM-TPK Doc #: 27 Filed: 07/06/12 Page: 10 of 21 PAGEID #: 3559 attempting to vote in any election in a precinct in which that person is not a legally qualified elector ) and (B) (making a violation of that section a felony of the fourth degree). Painter, 128 Ohio St.3d at In abrogation of the above referenced statutes, Plaintiffs Proposed Order completely eliminates any obligation that the voter has to ensure that they are correctly registered to vote and that they attempt to vote in the correct precinct. (Doc. 4-1, Proposed Order, pp. 2-4.) No election procedure is perfect. Lastly, in Ohio, no provisional ballot may be opened or counted in a particular county until the eligibility of all of the provisional ballots has been determined. O.R.C (D). This provision ensures impartiality and, along with the fact that all county boards of elections are bi-partisan pursuant to O.R.C , eliminates Plaintiffs concerns that boards may improperly count or not count provisional ballots to change an election result. 4. Plaintiffs Impermissibly Flip the Presumption of Poll Worker Regularity. Plaintiffs request that this Court enjoin Secretary Husted and the county boards of elections from rejecting wrong precinct provisional ballots and provisional ballots with an incomplete envelope unless the board has proof that the voter was warned by poll worker, as is required by Ohio law, that the vote would not count, and insisted upon casting an invalid ballot anyway. (Doc. 4, p. 4.) This proof is unnecessary under Ohio law because poll workers are presumed to have properly discharged their duties. 1 State ex. rel Skaggs v. Brunner, 120 Ohio St.3d 506, 51 (2008). Poll worker error must not be presumed and must be demonstrated though evidence. Id. In the absence of evidence to 1 In addition, the poll worker themselves are not the only way that voters are warned at the polling locations that their vote will not count if they are voting in the wrong precinct. Signs are conspicuously posted at each precinct with this information and the face of the provisional ballot envelope, which the voter signs, contains the same warning. 9

11 Case: 2:12-cv ALM-TPK Doc #: 27 Filed: 07/06/12 Page: 11 of 21 PAGEID #: 3560 the contrary, public officers, administration officers and public authorities, within the limits of jurisdiction conferred upon them by law, will be presumed to have properly performed their duties in regular and lawful manner Painter, 128 Ohio St.3d at 22 (citing Skaggs, 120 Ohio St.3d at 51). The same presumption that public officials have properly discharged their official duties is also established federal law. See Bracy v. Gramley, 520 U.S. 899, 909 (1997) (requiring plaintiff to present clear evidence to over come strong presumption that the state actors have properly discharged their official duties); Stemler v. City of Florence, 126 F.3d 856, 873 (6th Cir.1997) (in the absence of clear evidence to the contrary, courts presume that public officers have properly discharged their official duties); United States v. Armstrong, 517 U.S. 456, 464 (1996); Postal Service v. Gregory, 534 U.S. 1, 10 (2001). Plaintiffs have not met their burden to overcome this presumption. In Ohio, the standard of proof with respect to evidence of election irregularities is clear and convincing. McMillan v. Astabula County Board of Elections (1993), 68 Ohio St.3d 31; In re Election of November 6, 1990 for the Office of Attorney General of Ohio (1991), 58 Ohio St.3d 103. Clear and convincing evidence is defined as [t]hat measure or degree of proof which is more than a mere preponderance of the evidence, but not to the extent of such certainty as is required beyond a reasonable doubt in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established. In re Election of November 6 at 106. Plaintiffs Proposed Order disregards Ohio case law requiring a clear and convincing standard, and would allow courts to flip the presumption of poll worker regularity without providing for the requisite 10

12 Case: 2:12-cv ALM-TPK Doc #: 27 Filed: 07/06/12 Page: 12 of 21 PAGEID #: 3561 evidentiary showing. (Doc. 4-1, Proposed Order, pp. 2-4.) As such, Plaintiffs place this Court in a very untenable position; requiring that this Court change Ohio law and presume that Ohio election officials did not perform their duties in a lawful and regular manner. (Id.) Not only does this negate the presumption of poll worker regularity under Ohio law, but the Proposed Order would also place greater obligations on election officials than are mandated by Congress. The individual shall be permitted to cast a provisional ballot at that polling place upon the execution of a written affirmation by the individual before an election official 42 U.S.C (a)(2) (emphasis added). HAVA s own language places the obligation to determine the validity of voter registration in the hands of the voter. Id. Under HAVA, an election official s only duties are to allow voters to vote provisionally, and then transmit that ballot to a state election official for post election verification. 42 U.S.C (a)(2),(3). Plaintiffs Proposed Order completely alters the responsibilities of the election official to a degree that exceeds the requirements of the Ohio Legislature, the United States Congress, and the Constitution. (Doc. 4-1, Proposed Order, pp. 2-4); O.R.C ; 42 U.S.C The Help America Vote Act Gave States Authority to Implement Provisional Voting Systems The Help America Vote Act vested individuals with the ability to cast a provisional ballot. 42 U.S.C (a). But, the determination of how to implement provisional voting systems was deliberately left to the States. 42 U.S.C ; Sandusky, 387 F.3d at 577 ( The only subsection of HAVA that addresses the issue of whether a provisional ballot will be counted as a valid ballot conspicuously leaves that determination to the States. ). States enjoy the traditional responsibility to administer 11

13 Case: 2:12-cv ALM-TPK Doc #: 27 Filed: 07/06/12 Page: 13 of 21 PAGEID #: 3562 elections and Congress did not intend that a voter s eligibility to cast a provisional ballot should exceed her eligibility to cast a regular ballot. Id. at 576. See also Oregon v. Mitchell, 400 U.S. 112, (1970); Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 161 (1892) ( Each State has the power to prescribe the qualifications of its officers and the manner in which they shall be chosen."). The source of this authority is conferred both by the United States Constitution, and with respect to provisional ballots, by Act of Congress. The ability of a prospective voter to receive and cast a provisional ballot prior to a determination of the voter s eligibility is not constitutionally mandated, but is rather a creature of statute. Therefore, Congress is free to decide under what circumstances and under whose authority such ballots are to be opened and counted. Under HAVA, the determination to open and count a provisional ballot is specifically a matter of state law left to state and local election officials. Indeed, the Sixth Circuit held that not only is Ohio permitted to set a precinct requirement, but that HAVA allows states to place such restrictions on voting. Sandusky, 387 F.3d at 578 ( States remain free, of course, to count such votes as valid, but remain equally free to mandate, as Ohio does, that only ballots cast in the correct precinct will be counted. ). Therefore, Ohio s election laws are valid state regulations that fully comport with the scheme devised by Congress under HAVA and do not in any way run afoul of the Supremacy Clause. Plaintiffs attempt to dig up the well established roots of federalism and ask this Court to supplant Ohio s provisional voting system with a system that is more attuned, not with any right guaranteed by Congress, but with the Plaintiffs own desires for how Ohio election law should be executed. (Doc. 4-1, Proposed Order.) Ohio voters have 12

14 Case: 2:12-cv ALM-TPK Doc #: 27 Filed: 07/06/12 Page: 14 of 21 PAGEID #: 3563 every right to effectuate changes to Ohio s election laws. However, the method for making these changes is through the State legislature, not the Federal court. C. Relief Sought by Plaintiffs Does Not Remedy the Alleged Constitutional Violation Plaintiffs will not suffer irreparable harm absent the injunction because the relief sought does not remedy the alleged constitutional violations. Plaintiffs requested relief is to require poll workers to complete an affirmation stating that s/he told the voter that s/he was in the wrong precinct and that the voter insisted upon voting in that precinct. Such relief does not address any of the concerns listed above and in doing so creates additional disparate treatment between categories of voters. If the goal is to enfranchise as many registered voters as possible and to eliminate error from the election process, Plaintiffs solution falls woefully short. If anything may be gleaned from the evidence presented in Hunter II, it is that more problems occur when the voting process becomes more involved. Adding additional poll worker duties and affirmation statements is not likely to result in reduced incidence of error. In fact, the opposite will occur there will be more opportunity for confusion as to the voter s intent. The final determination of whether the voter or the poll worker intended to execute these new affirmations is left to the discretion of the county boards of elections under the direction of the Secretary of State. This scheme has the potential to create disparity between county boards of elections and may result in more ballots being rejected. Plaintiffs overlook the fact that the relief requested only provides a remedy for those federal, state, and local elections and issues for which every voter is entitled to cast a vote. If the county boards of elections are ordered to presume poll worker error and to count wrong precinct ballots, this will be accomplished by the boards remaking the 13

15 Case: 2:12-cv ALM-TPK Doc #: 27 Filed: 07/06/12 Page: 15 of 21 PAGEID #: 3564 incorrect precinct ballot into the correct precinct ballot, by hand using bi-partisan teams. The remade ballot will be added to the official count, but only those races and issues included on both ballots will be counted. For example, a voter who incorrectly votes in a precinct in the 1 st District of the U.S. House of Representatives casts a vote for that specific district representative. However, if the individual actually resides in, and therefore should have voted in a precinct located in the 2 nd District, their choice for representative will not be represented on the ballot. It is impossible for this particular section of the ballot to be remade, resulting in that individual s vote to count for some elections, but not all. Voting in the correct precinct is the only way to ensure that voters will cast a vote for all races and issues for which they are entitled to vote. Those provisional ballots legally cast by qualified electors in accordance with state law should be opened and counted. Those that do not meet this standard should not. We acknowledge that we are bound to liberally construe election laws in favor of the right to vote. State ex rel. Colvin, 120 Ohio St.3d 110 (2008), 62. However, this rule does not allow us to simply ignore facts and make unreasonable assumptions if doing so favors the right to vote. We are mindful of the interest of those voters who cast their votes pursuant to the law in not having the value of their votes diminished by the injudicious application of an accepted principle of law. Skaggs, 120 Ohio St. 3d at The rejection of provisional ballots that do not comport with state law does not disenfranchise any voter. On the other hand, the inclusion of ballots illegal under state law disenfranchises the ballots of voters who cast theirs correctly by diluting the effect of their valid votes. See Bush v. Gore, 531 U.S. 98, 105 (2000) ( The right of suffrage can 14

16 Case: 2:12-cv ALM-TPK Doc #: 27 Filed: 07/06/12 Page: 16 of 21 PAGEID #: 3565 be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise. ) D. The Alleged Harm is Not Likely to Be Repeated While it is true that the Hamilton County Board of Elections was found by this court in Hunter II to have treated two categories of provisional ballots differently in the November 2010 general election, Plaintiffs failed to produce evidence that this different treatment occurred in any subsequent election or that this treatment will occur in any upcoming elections. [In 2010], Ohio law simply did not contemplate what standards to apply to ascertain poll-worker error in such a context, because poll-worker error was irrelevant to whether or not a miscast vote was counted. Hunter v. Hamilton County Bd. of Elections, 635 F.3d 219, 239 (6th Cir. 2011). Since the 2010 election, the Board has followed the directives of the Secretary of State and the guidance established by the Ohio Supreme Court in Painter to investigate for poll worker error. Plaintiffs have failed to offer sufficient evidence to suggest that the Hamilton County Board is likely to act contrary to these mandates or that an injunction is needed to require the county boards of elections to follow such mandates. Federal courts are barred by the Eleventh Amendment from granting relief against state officials on the basis of state law as such a result conflicts directly with the principles of federalism. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984) (it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law.) To the extent Plaintiffs relief requires the Defendants to comply with Ohio law, this court is without jurisdiction to order such relief. 15

17 Case: 2:12-cv ALM-TPK Doc #: 27 Filed: 07/06/12 Page: 17 of 21 PAGEID #: 3566 E. Injunction Would Cause Substantial Harm to the Franchise and the Defendants, and Is Not in the Interest of the Public Ohio elections are administered by county boards of election acting under the supervision of the secretary of state. Boards of election are created by statute, see O.R.C , and are vested with broad powers to manage the conduct of elections. Hunter II, at 3. The primary function of the boards is to assure that every ballot cast in accordance with state law by a qualified elector will be counted and included in the official canvass of the election for which it was cast. This function applies to all ballots; those considered regular, as well as absentee and provisional ballots cast prior to and on election day. A qualified elector is a person who meets the age and residency requirements and is properly registered to vote. Qualified electors appearing on election day at the precinct in which they are registered will sign the signature poll book where their name is printed and will be given a ballot or directed to an electronic voting device. They will then complete their ballot, cast it, and be on their way. Persons requesting to vote absentee will have their eligibility determined by the board staff and if eligible, will be sent a ballot with instructions on how to complete and return it. Persons appearing at the board during the early voting period and at the precinct locations on election day whose eligibility to cast a ballot cannot be readily ascertained may only cast a provisional ballot. The ballot is not valid and cannot be counted until local election officials have determined that the provisional voter is properly qualified and that the ballot was cast in accordance with state law. 42 U.S.C These determinations are made following the election by the boards. Once the eligibility of all provisional ballots has been determined, they are opened, counted, and included in the official canvass. 16

18 Case: 2:12-cv ALM-TPK Doc #: 27 Filed: 07/06/12 Page: 18 of 21 PAGEID #: 3567 Provisional ballots are a recent development in elections. The enabling authority for provisional ballots in federal elections is found in the Help America Vote Act, 42 U.S.C The corresponding state sections are O.R.C , , and The ability to vote by provisional ballot is not constitutionally mandated but is rather a creature of statute and is not protected as fundamental. See, eg Crawford v. Marion County Election Bd., 553 U.S. 181, 209 (2008), Scalia concurring in judgment: ( That the State accommodates some voters by permitting (not requiring) the casting of absentee or provisional ballots, is an indulgence not a constitutional imperative that falls short of what is required. ); McDonald v. Board of Election Com'rs of Chicago, 394 U.S. 802, (1969) (Absentee voting statutes designed to make voting more available to some groups who cannot easily get to the polls, do not deny the exercise of the franchise to other groups who may not vote absentee.) The basis of Plaintiffs case is that the use of provisional ballots is an impediment to the exercise of the voting franchise. In fact, the opposite is true. Provisional ballots are cast by persons who appear to be ineligible to vote and who historically would have been refused a ballot in the first instance. In that sense, it is immaterial whether there are three or thirteen classes of voters who are required to vote provisionally. 2 Under either scenario, ballots are being cast by people who would have been turned away just a few short years ago. Prior to provisional voting, these prospective voters never completed 2 While plaintiffs insist that Ohio has thirteen classes of voters who are required to vote provisionally, as a practical matter, provisional voters fall into four basic categories: 1) those without proper identification or who cannot satisfy the poll workers of their identity O.R.C. ' (2),(3),(4),(10),(12) and (13); 2) those whose registration is in question or has been challenged O.R.C. ' (1),(6),(7),(8) and (11); 3) those who have requested an absentee ballot O.R.C. ' (5); and 4) those who have moved or changed their names O.R.C (9). 17

19 Case: 2:12-cv ALM-TPK Doc #: 27 Filed: 07/06/12 Page: 19 of 21 PAGEID #: 3568 ballots and the disenfranchisement of otherwise qualified voters who would today vote by provisional ballot was total. In even year federal elections since 2004, 57,199 people cast ballots in Hamilton County general elections who would have been sent home had provisional ballots been unavailable. Of these ballots, approximately 45,888, 3 or 80.2%, were counted. The percentage of provisional ballots cast that have been counted in Hamilton County during those elections varied between 75.8% in 2004 to 87.7% in See attached Provisional Ballot Statistics, Exhibits J-O. While it is true that some provisional ballots are rejected in every election, it simply is not the crisis of democracy that Plaintiffs now insist. The vast majority of provisional ballots cast are, in fact, counted. The reasons for rejection vary statistically from year to year, but rejection for non-registration has ranked first or second each year. These ballots would not have counted regardless of where the voter cast the ballot or whether the voter s signature matched or didn t match. Rejections as a result of nonmatching signatures occurred on only 118 provisional ballots in the general election of 2008 out of 5,773,777 ballots cast statewide. Signature non-matches occurred in likewise de minimus frequencies in the 2010 general (47 out of 3,956,045) and the 2012 primary (12 of 1,970,753). Rejecting the constitutionality of Ohio s election laws for this reason is simply not appropriate. Finally, the relief Plaintiffs seek will result in harm to the public. Constitutionalizing the concept of poll worker error as a means for pursuing a federal challenge to a local election will undermine public confidence in the ultimate result. 3 Additional ballots were counted in 2010 pursuant to litigation (Hunter II) that are not included in this count. 18

20 Case: 2:12-cv ALM-TPK Doc #: 27 Filed: 07/06/12 Page: 20 of 21 PAGEID #: 3569 Local election officials will now be subject to claims that a vote was denied because an error was not investigated and a provisional ballot was not properly counted based upon mere allegations. Election officials actions will be subject to challenge in the event that they do not investigate, find, and correct even minor errors. Such perfection is desirable, but neither obtainable nor constitutionally required. In addition, time and resource limitations prevent the boards from conducting exhaustive and repetitive reviews of provisional ballots. Having mini-trials regarding each provisional ballot in question prior to completing the official canvass is both expensive and impracticable. Nor is Plaintiffs offered alternative of simply presuming error acceptable. In Hamilton County, the board was subjected to a seventeen month ordeal because it sought to remedy an obvious error. Because it counted some, but not all improper ballots, the board was sued. The end result was an overturned election, a losing candidate seated based upon votes of questionable legality, and millions of dollars expended. Repeating this scenario in future elections is not in the public s interest. III. CONCLUSION For the reasons set forth above, Defendants respectfully ask this Court to deny Plaintiffs Motion for Preliminary Injunction. Respectfully submitted, JOSEPH T. DETERS PROSECUTING ATTORNEY HAMILTON COUNTY, OHIO BY: /s/ David T. Stevenson David T. Stevenson Colleen M. McCafferty Assistant Prosecuting Attorneys 230 East Ninth Street, Suite

21 Case: 2:12-cv ALM-TPK Doc #: 27 Filed: 07/06/12 Page: 21 of 21 PAGEID #: 3570 Cincinnati, Ohio (513) (Stevenson) (513) (McCafferty) Fax: (513) Attorneys for Hamilton County Board of Elections CERTIFICATE OF SERVICE I hereby certify that the foregoing was filed on July 6, 2012 using the Court s CM/ECF system, which will transmit notice of the filing to all counsel of record in this case. /s/ David T. Stevenson David T. Stevenson 20

22 Case: 2:12-cv ALM-TPK Doc #: 27-1 Filed: 07/06/12 Page: 1 of 7 PAGEID #: 3571

23 Case: 2:12-cv ALM-TPK Doc #: 27-1 Filed: 07/06/12 Page: 2 of 7 PAGEID #: 3572

24 Case: 2:12-cv ALM-TPK Doc #: 27-1 Filed: 07/06/12 Page: 3 of 7 PAGEID #: 3573

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31 Case: 2:12-cv ALM-TPK Doc #: 27-2 Filed: 07/06/12 Page: 3 of 23 PAGEID #: 3580

32 Case: 2:12-cv ALM-TPK Doc #: 27-2 Filed: 07/06/12 Page: 4 of 23 PAGEID #: 3581

33 Case: 2:12-cv ALM-TPK Doc #: 27-2 Filed: 07/06/12 Page: 5 of 23 PAGEID #: 3582

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40 Case: 2:12-cv ALM-TPK Doc #: 27-2 Filed: 07/06/12 Page: 12 of 23 PAGEID #: 3589

41 Case: 2:12-cv ALM-TPK Doc #: 27-2 Filed: 07/06/12 Page: 13 of 23 PAGEID #: 3590

42 Case: 2:12-cv ALM-TPK Doc #: 27-2 Filed: 07/06/12 Page: 14 of 23 PAGEID #: 3591

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44 Case: 2:12-cv ALM-TPK Doc #: 27-2 Filed: 07/06/12 Page: 16 of 23 PAGEID #: 3593

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47 Case: 2:12-cv ALM-TPK Doc #: 27-2 Filed: 07/06/12 Page: 19 of 23 PAGEID #: 3596

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49 Case: 2:12-cv ALM-TPK Doc #: 27-2 Filed: 07/06/12 Page: 21 of 23 PAGEID #: 3598

50 Case: 2:12-cv ALM-TPK Doc #: 27-2 Filed: 07/06/12 Page: 22 of 23 PAGEID #: 3599

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60 Case: 2:12-cv ALM-TPK Doc #: 27-5 Filed: 07/06/12 Page: 3 of 3 PAGEID #: 3609

61 Case: 2:12-cv ALM-TPK Doc #: 27-6 Filed: 07/06/12 Page: 1 of 35 PAGEID #: 3610

62 Case: 2:12-cv ALM-TPK Doc #: 27-6 Filed: 07/06/12 Page: 2 of 35 PAGEID #: 3611

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98 Case: 2:12-cv ALM-TPK Doc #: 27-7 Filed: 07/06/12 Page: 3 of 9 PAGEID #: 3647

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