THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO WESTERN DIVISION

Transcription

1 THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO WESTERN DIVISION THE LEAGUE OF WOMEN ) CASE NO.: 3:04CV7622 VOTERS OF OHIO, et al. ) ) JUDGE: JAMES G. CARR Plaintiffs, ) ) vs. ) ) J. KENNETH BLACKWELL, ) DEFENDANT SECRETARY OF ) STATE J. KENNETH BLACKWELL S Defendant. ) MOTION TO DISMISS AND BRIEF ) IN OPPOSITION TO PLAINTIFFS ) COMPLAINT AND MOTION FOR ) DECLARATORY AND INJUNCTIVE ) RELIEF Now comes Defendant, Ohio Secretary of State, J. Kenneth Blackwell, by and through undersigned counsel, and herein submits his opposition and moves this Honorable Court to issue an Order Dismissing Plaintiffs Complaint and otherwise denying Plaintiffs request for Declaratory and Injunctive Relief for the reasons set forth in the Brief in Opposition attached hereto and made a part hereof. Respectfully submitted, JIM PETRO ATTORNEY GENERAL OF OHIO By: /s/ Richard G. Lillie RICHARD G. LILLIE ( ) GRETCHEN A. HOLDERMAN ( ) BENESCH, FRIEDLANDER, COPLAN & ARONOFF LLP 2300 BP TOWER, 200 Public Square Cleveland, Ohio (216) , rlillie@bfca.com Special Counsel for Secretary of State J. Kenneth Blackwell - 1 -

2 BRIEF I. THE FUNDAMENTAL RIGHT TO CAST A MEANINGFUL BALLOT The Plaintiffs here have commenced this emergency action against the Secretary of State to... halt [him] from illegally nullifying federal law mandating that provisional ballots submitted by eligible registered voters on election day be counted. Plaintiffs plea, no matter how frantically made, is vacuous. Plaintiffs are asking for the right to enable voters to vote by any and all manner and means and without any requirement that they be qualified, identifiable voters. The bottom line is that what Plaintiffs are really asking for is that the Secretary of State tell voters that the ballots they cast - at any polling place location they choose - will be counted, when in fact, under Ohio law, only those provisional votes cast by eligible voters, cast at the proper polling places, will be counted. In Ohio, casting a meaningful ballot one that will be counted means getting each voter to his or her proper precinct. Specifically, HAVA provides that after a provisional ballot is transmitted to an election official: (4) If the appropriate State or local election official to whom the ballot or voter information is transmitted under paragraph (3) determines that the individual is eligible under State law to vote, the individual s provisional ballot shall be counted as a vote in that election in accordance with State law. 42 U.S.C , Section 302(a)(4) HAVA provides that ballots cast will be counted in accordance with state law. Ohio Revised Code provides that the class of qualified electors includes: 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 election at which the citizen offers to vote, is a resident of - 2 -

3 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. Id. Thus, Ohio law mandates that only votes cast by qualified electors who vote in the precinct in which they reside, be counted. Plaintiffs demand that any registered voter be allowed to cast a provisional ballot at any polling place. Notwithstanding the fact that in connection with casting provisional ballots, a voter s polling place is defined in the Revised Code (i) as: [t]he polling place in the precinct in which that registered elector resides, if we accept Plaintiffs argument and permit voters to cast provisional ballots at any polling place in the county (and have the pollworkers at those polling places accept and receive those provisional ballots), voters will necessarily be mislead (i.e., disenfranchised) into casting ballots which - once opened and examined - will not be counted under Ohio law. Defendant submits that pollworkers accepting provisional ballots at precincts from voters who reside outside the precinct knowing such to be the case - would be doing so under false pretenses as the only votes which will be counted under state law are those cast under circumstances which meet the state s statutory requirements. HAVA requires that states adopt certain procedures whereby persons who cast provisional votes will be able to determine (post-election) whether their vote has been counted. The Secretary does not want tens or hundreds of thousands of Ohioans to find out after November 2 nd that the ballots they cast were meaningless. Such an outcome would be a travesty, yet it is that for which the Plaintiffs are asking. Again, it is - 3 -

4 Plaintiffs position that would effectively disenfranchise provisional voters, not the Secretary of State s position. In the past, the typical provisional voter was a person who had recently moved and had not updated his registration with the Board of Elections, or, someone who had been mistakenly or inadvertently been left off the rolls of their home precinct. Both the Ohio Revised Code and the Secretary of State make provisions to accommodate these individuals. Plaintiffs proposal and interpretation of the law would allow any registered voter to vote anywhere in the same county. Thus the Plaintiffs are attempting to change the law without first submitting their case to the state legislature. Defendant submits that this case is really not about voters who have recently moved. This case is about abolishing the principle of precinct-based voting in the State of Ohio, which in turn is based upon the principle that one votes where he or she actually resides on the date of the election. Simply stated, the instant case is aimed at undoing the principle of residence-based voting. Defendant J. Kenneth Blackwell, as Ohio s Secretary of State, is committed to following state law and defending all voters rights to cast ballots which will be counted thereunder. The Secretary is further committed to protect each voter s right to cast a meaningful vote for the candidate of his or her choice. Indeed, the purpose of casting a vote is to have such vote counted and ultimately recorded and tabulated... to elect public officials and/or pass various levies, referenda, and legislation. Plaintiffs claims of disenfranchisement are misplaced

5 Permitting any voter to cast a vote anywhere would surely lead that voter to believe that his or her vote will be counted and thus would be meaningful. Such notion would be misleading; because under Ohio state law, voters must vote at their assigned precinct and, under certain circumstances, upon providing acceptable identification. II. REGULATING FEDERAL AND STATE ELECTIONS The Elections Clause of the United States Constitution, Art. I 4, cl.1 provides, [t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof. In the case at bar, Plaintiffs do not specify whether their claims against Defendant are due to grievances pertaining to regulation of the ability to cast votes for state candidates or federal candidates or state issues or federal issues. Accordingly, Defendant will address the regulation of both state and federal elections. A review of the United States Supreme Court s analysis of election laws is helpful to analyses of the facts and allegations in this case. Indeed, the United States Supreme Court has had numerous opportunities to review state law in light of federal constitutional protections. In Brudick v. Takushi, 112 S. Ct (1992), the United States Supreme Court dealt with a state s ability to place certain burdens upon individuals rights to vote. In Takushi, the Court explored claims that Hawaii s ban on write-in ballots violated a voter s rights of expression and association under the First and Fourteenth Amendments. In Takushi, after only one candidate was nominated to run for a state representative seat, the plaintiff wrote to state officials indicating that the candidate he wanted to vote for was not going to be listed on the ballot in an upcoming election. Responding to plaintiff s - 5 -

6 inquiry, the state Attorney General opined that the state s election laws made no provisions for write in voting and a lawsuit followed in the United States District Court. In reviewing plaintiff s challenge to Hawaii s prohibition against write-in voting, The District Court determined that the write-in vote prohibition violated the voters rights. The Court of Appeals reversed and the United States Supreme Court affirmed the Court of Appeals opinion finding that the state s regulation was appropriate. Takushi is particularly noteworthy in that the Court makes clear the applicable standard of review in that case was something less than strict scrutiny. Moreover, Defendant would submit that such standard is equally applicable here wherein Plaintiffs accuse Defendant of disenfranchising voters and violating federal law despite the fact that Defendant s actions in issuing Directives and were consistent with and not contrary to the requirements under HAVA and the Ohio Revised Code. In Takushi, while discussing the fact that not all burdens upon individuals rights to vote are subject to strict scrutiny, the Court noted: It is beyond cavil that voting is of the most fundamental significance under our constitutional structure. Illinois Bd. Of Elections v. Socialist Workers Party, 440 U.S. 173, 184(1979). It does not follow, however, that the right to vote in any manner and the right to associate for political purposed through the ballot are absolute. Munro v. Socialist Workers Party, 479 U.S. 189, 193 (1986). The Constitution provides that States may prescribe [the Times, Places and Manner of holding Elections for Senators and Representatives, Art. I, 4, cl.1, and the Court therefore has recognized that States retain the power to regulate their own elections. Sugarman v. Dougall, 413 U.S. 64\34, 647 (1973); Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 217 (1986). Common sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections; as a practical matter, there must be substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos is to accompany the democratic process. Storer v. Brown, 415 U.S. 724 (1974)

7 Takushi, 112 S. Ct. 2059, at 2063 (emphasis added) (some citations omitted). The observations of the Supreme Court in Takushi are applicable to the instant case 1 and offer some insight to the Supreme Court s observations concerning states rights to regulate elections and place some burdens on the right to vote. Clearly, the review of challenges made in this case in connection with Directives and , should be viewed in the light of the Supreme Court s rationale in Takushi. Defendant submits that fair and orderly elections are in the best interests of both voters and candidates. Indeed, as the State of Ohio s Chief Election official, it is Defendant s obligation to provide for fair, honest, and orderly elections including federal elections. As duly noted by the United States Supreme Court in the case of Storer v. Brown, 94 S.Ct (1974) the States have the duty to determine which persons are qualified to cast votes in an election. As cited above, the Court in Takushi noted the rationale it used in Storer when dealing with the overall regulation of elections. The Storer case is also instructive in assessing a state s ability to make an initial determination as to the eligibility of a person to vote. In Storer, recognizing the duties of the states relative to conducting elections and determining voter eligibility, the Supreme Court noted:... the States are given the initial task of determining the qualifications of voters who will elect members of Congress. Art. I, s 2, cl. 1. Also Art. I, s 4, cl. 1, authorizes the States to 1 Note: Takushi dealt with a state and not a federal election; however, the Takushi analysis is applicable herein as well, notwithstanding the fact that Plaintiffs do not state whether they are addressing federal or state election issues

8 prescribe (t)he Times, Places and Manner of holding Elections for Senators and Representatives. Moreover, as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes. In any event, the States have evolved comprehensive, and in many respects complex, election codes regulating in most substantial ways, with respect to both federal and state elections, the time, place, and manner of holding primary and general elections, the registration and qualifications of voters, and the selection and qualification of candidates Id, at 1279 (emphasis added). The Secretary of State s duties include not only regulating and maintaining orderly elections in a manner consistent with Ohio law, but also to determine who is eligible to vote in any election. Contrary to state statute, what Plaintiffs propose is to allow anyone (with or without providing identification at some point) to vote anywhere. Permitting such broad and haphazard voting would not only create the extraordinary potential for chaos on election day, but also open the door for widespread voter fraud. A. COUNTY-WIDE vs. PRECINCT-BASED ELECTIONS Plaintiffs attack Secretary of State Directive claiming that it violates federal law by requiring that voters live within the district in which they want to cast a vote. Plaintiffs fail to acknowledge Ohio s precinct-based system of voting and the long-standing practice and requirement that Ohio voters cast ballots at particular/assigned polling places. Not only are Plaintiffs misdirected in their claims that Directive is violative of HAVA, the type of voting they suggest makes little sense

9 Clearly what Plaintiffs propose would lead to voters casting uncounted and/or uninformed votes to the overall detriment and disenfranchisement of other voters. Consider the lack of fairness and logic in the following: - Allowing Sylvania voters to vote on Toledo school levies. - Allowing Sylvania voters to vote for or against tax hikes for Toledo residents. - Allowing Toledo residents to determine whether residents in various suburban communities should pay additional taxes for safety services. - Allowing Sylvania voters to approve a levy for building a municipal court complex in the downtown Toledo area. - Allowing urban or suburban residents to decide whether the charters of the others cities of residence should be modified or amended. These examples do not make sense. If we accept Plaintiffs argument, then a Sylvania resident who works in downtown Toledo could vote at a downtown voting place during lunch. Query: Where would that lead? - Would each precinct be required to offer and maintain ballots for every other precinct? - How would elections officials determine which precinct ballot each voter should get if not based on residency? - Would voters who demand to vote on a county-wide basis at any polling place only be permitted to vote for president and congressmen? Indeed, notwithstanding the fact that county-wide voting is contrary to Ohio law, the potential for gross confusion, extraordinary expense, and general disorder is limitless

10 Plaintiffs proposition is wholly without merit. Under the current law, if a voter or a pollworker is unsure about the correct place for a voter to cast a provisional ballot, the voter can always report to the county board of elections to cast his or her vote where (1) there will be election officials who can identify precisely what proper precinct the voter should be voting in, and (2) unlike all the outlying polling places, the county board of elections would have copies of all the different ballots for each precinct. Plaintiffs position advocating county-wide provisional voting would have provisional voters vote only for President, the U.S. Senate, and possibly in county-wide races. Anything more would be wrong and would result in the provisional voter voting on candidates and issues which do not pertain to such voters. Without providing any clear explanation, Plaintiffs argue that Directive also violates the fail-safe voting provisions of HAVA. Directive provides as follows: Ohio Secretary of State J. Kenneth Blackwell DIRECTIVE September 16, 2004 ALL COUNTY BOARDS OF ELECTIONS Issuing And Processing Provisional Ballots All boards of elections must instruct their pollworkers on the provisional voting procedures authorized by state and federal law. State Law: Provisional voting eligibility based on elector moving from one Ohio precinct to another Ohio law provides that every United States citizen who is of the age of 18 years or over and who has been a resident of the state 30 days immediately preceding the 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 30 days, has the qualifications of an elector and may vote at all elections in the precinct in which the citizen resides. R.C State law further provides that an eligible elector who moves from one Ohio precinct to another before an election may, in accordance with the procedures set forth in R.C , update his or her existing voter registration to the new voting residence address and vote a provisional ballot for the precinct in which the person s new voting residence is

11 located. The provisional ballot will be counted in the official canvass if the county board of elections confirms that the person was timely registered to vote in another Ohio precinct, and that the person did not vote or attempt to vote in that election using the person s former voting residence address. Because R.C specifically prohibits anyone from voting or attempting to vote in any election in a precinct in which that person is not a legally qualified elector, pollworkers in a precinct must confirm before issuing a provisional ballot that the person to whom the provisional ballot will be issued is a resident of the precinct, or portion of the precinct, in which the person desires to vote. In order for that confirmation process to work, the boards of elections must include with the supplies for each precinct a complete and correct map of, and street listing for, that precinct. Both the map and street listing must clearly indicate any splits within the precinct. Before issuing a provisional ballot as provided for under state or federal law, the pollworkers must confirm that the voting residence address claimed by the voter is located within the area shown on the precinct map and listed on the street listing. Only after the precinct pollworkers have confirmed that the person is eligible to vote in that precinct shall the pollworkers issue a provisional ballot to that person. Under no circumstances shall precinct pollworkers issue a provisional ballot to a person whose address is not located in the precinct, or portion of the precinct, in which the person desire to vote. However, no provisional ballot will be disallowed because of pollworker error in a split precinct. If the pollworkers determine that the address of a person who desires to vote in a particular location is not located within that precinct, the pollworkers must contact the board of elections, and the board shall advise both: 1. The precinct in which the voter s address is located, and 2. The location of the polling place for that precinct. Defendant notes that a reading of HAVA s text lends support to Directive above as well as Ohio s precinct-based system of voting. As it relates to Plaintiffs arguments against requiring voters to vote at their designated polling places, Plaintiffs seem to suggest that the term jurisdiction should mean county. Defendant, on the other hand, submits that although the term jurisdiction is not defined in HAVA, the Act s legislative history lends support to Defendant s position that HAVA s intent was to use the term jurisdiction to denote a legally defined area. Under HAVA, the term jurisdiction necessarily depicts a pre-defined territory or district in which a voter would properly cast and/or register to cast his or her vote. In Ohio, the relevant, predefined territory is the precinct

12 Nothing in HAVA supports the argument that non-identified voters should be able to just show up anywhere they wish to cast a provisional vote. 42 USC (a)(1),(2), and (3), contain language requiring an eligible voter s affirmation of his/her registration in the jurisdiction of the polling place in which he or she desires to vote - thus further illustrating that the use of the words polling place in the Act is consistent with the idea that the voter would go to the location in which he or she is registered to vote. Accordingly, Directive is consistent with HAVA s stated intention to leave the determination of voter eligibility up to the states. B. IDENTIFICATION REQUIREMENTS Plaintiffs claim that Directive is illegal and bizarre in requiring voters to provide acceptable proof of their identity. Plaintiffs next claim that Directive violates the fail-safe voting provisions of HAVA designed to prevent the disenfranchiseme nt of eligible voters entitled to vote by provisional ballot. What Plaintiffs do not explain is how the Directive violates HAVA and causes the disenfranchisement of eligible voters. Directive provides in pertinent part as follows: Ohio Secretary of State J. Kenneth Blackwell DIRECTIVE February 19, 2004 To: All County Boards of Elections Members, Directors and Deputy Directors (1) PROVISIONAL BALLOTS R.C An Ohio voter who moved from one Ohio precinct to another Ohio precinct (with or without a name change) and did not update his or her existing voter registration by the 28 th day before the election may cast a provisional ballot. If the provisional ballot ID envelope is properly completed and signed, the board must verify that the voter (1) was registered to vote at another Ohio address by the registration deadline, and (2) did not vote at that other address. If the information is verified, the ballot will be included in the official canvass. If the information cannot be verified, the ballot cannot be counted. The minutes of the board s

13 meeting to certify the results of the election must identify each ballot that was not counted and why each was not counted. HAVA 302(a) A voter who declares that he or she is a qualified elector of the precinct and is eligible to vote in the election, but whose name does not appear on the poll list in an election for federal office, will be allowed to cast a provisional ballot at the polling place after completing, in the presence of an election official at the polling place, the written affirmation statement. If the statement of affirmation is properly completed and signed, the board must inspect its records to determine if the voter was properly registered to vote and was eligible to vote the ballot he or she cast. If the board determines that the voter is eligible, then the ballot will be included in the official canvass. If the board determines that the voter is not eligible, then the ballot cannot be counted. The minutes of the board s meeting to certify the results of the election must identify each ballot that was not counted and why each was not counted. HAVA 303(b)(2)(B) provide: o o o when both: A voter who registered to vote by mail after but did not the applicant s Ohio drivers license number, or the last four digits of the applicant s Social Security number, or acceptable documentary proof of the applicant s identity, 1. registering to vote and 2. voting for the first time in person in a federal election, may vote a provisional ballot at the polling place after completing, in the presence of an election official, the written affirmation statement. If the statement of affirmation has been properly completed and signed, and the voter provides acceptable proof of identify to either the board office or to the precinct election officials by the time the polls close, then the ballot will be included in the official canvass. Otherwise, the ballot cannot be counted. The minutes of the board s meeting to certify the results of the election must identify each ballot that was not counted and why each was not counted. HAVA does not require that states throw out their duty and ability to determine who is eligible and qualified to vote. Are Plaintiffs suggesting that votes from ineligible and unidentified voters be cast and counted? If so, what would prevent voter fraud? Directive does require certain voters, under certain circumstances, to provide acceptable documentary proof of identity. Plaintiffs do not, however, explain why this requirement is illegal or bizarre. Rather, the Directive is both cognizant of and consistent with the Ohio Revised Code and the applicable provisions set forth in HAVA. 2 2 Pertinent Ohio Revised Code Provisions are attached hereto

14 Plaintiffs claim that Directive causes them irreparable harm is without merit. Under all that is required of a very limited type of first time voter is proof of identity. The idea that requesting identification of a voter who has not previously provided any acceptable proof of authentication that they are in fact who they claim to be, is truly specious. Pursuant to Directive , and its rendering of HAVA 303(b)(2)(B), a voter who: [1] registered to vote by mail, [2] after January 1, 2003 [3] but did not provide: [A] [B] [C] the applicant s Ohio drivers license number, or the last four digits of the applicant s Social Security number, or acceptable documentary proof of the applicant s identity, and then was both: [i] registering to vote and [ii] 1. Voting for the first time 2. In person 3. In a federal election could vote a provisional ballot, would not seen to disturb anyone; indeed, even insofar as the Plaintiffs are concerned, so far, so good, we would imagine. However, it is at this point that the nettlesome issue of identification comes into play, because our would-be provisional voter must then 1. Sign a written affirmation, and 2. Provide acceptable proof of identity, 3. By the time the polls close

15 Then his or her ballot can be counted. It is these identification requireme nts which the Plaintiffs now attack. Thus, one must query, is there a voter in America who has not been required to produce some identification at some point before voting? For those few voters who may qualify under the approximately seven predicates outlined above, it is acknowledged that they might indeed have to present some proof of identity during the twelve plus hours the polls are open. Strangely, it is this most basic of voting requirements to which Plaintiffs object. It is obvious that the only reason for requiring identification is to prevent fraud. Surely, it cannot be the Plaintiffs goal to encourage imposters to vote simply to increase voter turnout, although that would be the logical result of their argument. For example, the Plaintiffs have the temerity to suggest that requiring a voter to expend monies to obtain a state identification before voting would amount to an impermissible poll tax (Plaintiffs brief at 23). Yet HAVA, as interpreted by the directive, requires nothing more than proof of identity, such as perhaps: a library card a school I.D. a medical I.D. a gym I.D. a church or religious I.D. a store or shopping I.D. Or, even

16 a state I.D. a drivers license, or an ADC or public assistance I.D. Plaintiffs go on to declaim that during the congressional debates over the passage of HAVA, congress expressed concern that inflexible identification or documentary proof would disproportionately burden minority and low-income voters. (Plaintiffs brief at 23) (Emphasis added). Nowhere in Directive is there an explicit - much less inflexible - identification requirement. Indeed, Plaintiffs assert that HAVA provides for the issuance of provisional ballots to voters who cannot present such identification. (Plaintiffs brief at 24) (Emphasis added) The allegations that the State of Ohio requires either an inflexible or such identification ; i.e., a specific identification, is a patent misrepresentation of the law. The State of Ohio provides that voters who fall within the limited criteria listed supra, may vote a provisional ballot at the polling place after completing, in the presence of a elected official, the written affirmation statement. Directive Then, pursuant to HAVA, an election official - consistent with state law must establish that the voter is eligible under state law to vote, and, if so, then the vote is counted. HAVA, 15482(a)(4) (Emphasis added). Defendant submits that the key is eligible under state law, and that is precisely what Directive requires after a provisional ballot has been cast, as the clause immediately following the noted criteria supra, states as follows:

17 If the statement of affirmation has been properly completed and signed [as noted above] and the voter provides acceptable proof of identify to either the board office or to the precinct election officials by the time the polls close, then the ballot will be included in the official canvass. Otherwise, the ballot cannot be counted. The minutes of the board s meeting to certify the results of the election must identify each ballot that was not counted and why each was not counted. In Ohio, an election official either at the board office or at the precinct (A) makes the verification that the voter is eligible under state law, (B) by the time the polls close, (C) in which case the ballot will either by counted or not. C. GENERAL COMPLIANCE WITH HAVA Defendant here maintains that both Directive and promote fair, reasonable, and efficient voting. Title III of HAVA governs states election technology and administration requirements for federal elections. See 42 U.S.C to Specifically, Title III outlines standards for voting systems, provisional voting, and voter registration list requirements, among other items. See 42 U.S.C TO HAVA establishes minimum requirements and does not prevent states from establishing requirements, more strict, but not inconsistent with, HAVA requirements. 42 U.S.C The specific choices on the methods of complying with the requirements of this title [Title III] shall be left to the discretion of the State. 42 U.S.C Consistent with the discretion Congress granted to the states on implementation of Title III s requirements, Congress specified that decisions on both voter eligibility and on

18 whether or not a provisional vote should be counted are to be made in accordance with State law. 42 U.S.C (a) (4). First, a state or local election official makes a determination on whether or not the voter is eligible under State law to vote. 42 U.S.C (a) (4) (emphasis added). Second, the state or local election official shall count that vote in accordance with State law. Id. These provisions provide clear guidance that Congress intentionally left issues of voter eligibility and vote counting to the purview of the individual states. Plaintiffs here, like the Plaintiffs in a similar case recently filed and pending before this Honorable Court, to wit: Sandusky Democratic Party, et al v. Blackwell, Case No.: 3:04CV7582 accuse Defendant of numerous violations of the Help America Vote Act, 42 USC et seq. As demonstrated hereinbelow, such accusations are without merit. 3 Concerning provisional voting, HAVA provides in pertinent part as follows: (b) PROVISIONAL VOTING REQUIREMENTS. ---If an individual declares that such individual is a registered voter in the jurisdiction in which the individual desires to vote and that the individual is eligible to vote in an election for Federal office, but the name of the individual does not appear on the official list of eligible voters for the polling place or an election official asserts that the individual is not eligible to vote, such individual shall be permitted to cast a provisional ballot as follows: (1) An election official at the polling place shall notify the individual that the individual may cast a provisional ballot in that election. (2) 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 at the polling place stating that the individual is (A) a registered voter in the jurisdiction in which the individual desires to vote; and 3 Notwithstanding the fact that Directive 2004 concerned the March 2004 primary, and not the upcoming November election, Defendant will attempt to address all of Plaintiffs stated allegations and arguments against him as to both Directives

19 (B) eligible to vote in that election. (3) An election official at the polling place shall transmit the ballot cast by the individual or the voter information contained in the written affirmation executed by the individual under paragraph (2) to an appropriate State or local election official for prompt verification under paragraph (4). (4) If the appropriate State of local election official to whom the ballot or voter information is transmitted under paragraph (3) determines that the individual is eligible under State law to vote, the individual s provisional ballot shall be counted as a vote in that election in accordance with State law. 42 U.S.C , Section 302(a)(1)-(4) Defendant submits that both Directive and Directive are consistent with HAVA s provisional voting Section as set forth above. Plaintiffs misconstrue the Directives and take them out of context. These Directives were intended to remind Ohio election officials of Ohio Statutory Provisional voting statutes which supplement and complement the HAVA Provisional Voting Standards. III. DISMISSAL IS APPROPRIATE AS HAVA DOES NOT CREATE A PRIVATE RIGHT ACTIONABLE UNDER TITLE 42 SECTION Plaintiffs are seeking relief from this Court for non existent, private rights. Plaintiffs efforts to circumvent HAVA and its enforcement scheme by incorporating alleged violations of HAVA into a claim for relief pursuant to 42 U.S.C are insupportable and without merit, since Congress did not create a private or individual right with respect to HAVA and HAVA compliance by the 50 states. Thus, absent the 4 Defendant notes that the arguments and legislative history offered hereinbelow for this Court s review are similar or identical to those submitted in Case No.:3:04CV

20 existence of a private right under HAVA, Plaintiffs may not use the Act to support their alleged Section 1983 claims. In the case of Blessing v. Freestone, 520 U.S. 329, 340 (1997), the United States Supreme Court held that in filing an action under Section 1983, a plaintiff must assert a violation of a federal right. Violation of federal law is not sufficient. In Gonzaga University v. Doe, 536 U. S. 273 (2002), the United States Supreme Court found that nothing short of an unambiguously conferred right [will] support a cause of action brought under The Supreme Court made clear that Section 1983 provides a remedy only for the deprivation of rights, privileges, or immunities secured by the Constitution and laws of the United States. Accordingly, it is rights, not the broader or vaguer benefits or interests, that may be enforced under authority of that section. Id, at 283 (internal citations omitted.) In this case, HAVA confers no private rights upon Plaintiffs or any other individuals. Indeed, if Congress wishes to create new rights enforceable under 1983, it must do so in clear and unambiguous terms. Id. at 290. HAVA, quite plainly, does not create any individual rights. A claim based on a statutory violation is enforceable under Section 1983 only when the statute creates rights, privileges or immunities in the particular plaintiff bringing a cause of action. Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, (1989). The question must be whether Congress evidenced an intent to confer federal rights upon those intended to benefit from particular statutes. California v. Sierra Club, 415 U.S. 287, 294 (1981) (citing Cannon v. Univ. of Chicago, 441 U.S. 677,

21 693 (1979)). Defendant argues that Congress did not intend to confer any individual rights in the passage of HAVA. A review of HAVA evidences that the act was written not to provide protection to individuals - but rather as a directive to election officials. Even the remedies provided deal with inaction or inaction by election officials with respect to compliance with HAVA provisions. A review of HAVA reveals that Act clearly directs only the conduct of government officials relative to voting systems and procedures and their implementation and does not create or confer private, individual rights. In reviewing the question of whether a statute confers any rights, the United States Supreme Court in Gonzaga, 536 U.S. 273 opined: the initial inquiry - - determining whether a statute confers any right at all is no different from the initial inquiry in an implied right of action case, the express purpose of which is to determine whether or not a statute confer[s] rights on a particular class of persons. This makes obvious sense, since 1983 merely provides a mechanism for enforcing individual rights secured elsewhere, i.e. rights independently secured by the Constitution and laws of the United States. [O]ne cannot go into court and claim a violation of for 1983 by itself does not protect anyone against anything. Id, at 285 (citations omitted.) The particular language used in a statute that is deemed to be mandatory, i.e. use of the word shall, does not determine whether such actually creates a private cause of action. As referenced above, the requirements in the statutes cited in the Gonzaga and Blessing cases were mandatory, however, such did not create or authorize causes of action for individuals. The subject requirements were directed at public officials and did not create rights or authorize causes of action for individuals. Gonzaga, 536 U.S. at 287; Blessing, 503 U.S. at

22 Applying the foregoing standards, 15482(a) which is directed at the election official? mandates that the election official permit a provisional ballot to be cast. It does not say that a person or voter has a right to cast the ballot. Thus, far from an unmistakable focus on the individual, this language speaks only to state election officials and not to potential electors. Gonzaga, 536 U.S. at 287. HAVA provides the following directives to election officials/election authorities: (a)(1) directs the conduct of election officials (a)(2), directs election authorities to permit certain described behaviors (a)(3), (4) and (5) directly address the conduct of election officials. Section 15482(a) is directed entirely at election officials and does not create individual voting rights. Accordingly, since HAVA s provisional voting requirements directly regulate the conduct of elections officials and are not phrased in terms of individual beneficiaries, HAVA does not contain the rights-creating language critical to showing the requisite congressional intent to create new rights. Gonzaga, 536 U. S. at 287 (quoting Alexander v. Sandova1, 532 U.S. 275, (2001)). The remedies provided under HAVA are not available to individuals. Indeed, HAVA s inclusion of particular enforcement procedures further supports the fact that Congress did not intend to create individually enforceable private rights. See, Gonzaga at (fact that aggrieved person had review mechanism, counsel[s] against finding congressional intent to create individually enforceable private rights. ). Specifically, 42 U.S.C (a)(1) requires states to establish and maintain State-based administrative complaint procedures which meet an exhaustive list of requirements. Id. Such procedures must:

23 - Be uniform and nondiscriminatory, id (a)(2)(A); - Allow any person who believes that there is a violation of any provision of Title III (including a violation which has occurred, is occurring, or is about to occur) to file a complaint, id (a)(2)(B) (emphasis added); - Provide, on the request of the complainant, for a hearing on the record, id (a)(2)(E); - Provide for a final determination with respect to any complaint within 90 days of the filing of the complaint, unless the complainant agrees otherwise, id (a)(2)(H); - Provide an alternative dispute mechanism to resolve the complaint within 60 days, if the 90-day deadline is not met, id (a)(2)(1); and - Provide, if the State determines that there is a violation of any provision of Title III, an appropriate remedy, id (a)(2)(F). In accordance with the mandates of HAVA, Defendant Secretary of State filed Ohio s State Plan in the Federal Register (69 Fed Reg 14879, 2004 WL ). In the case at bar, Plaintiffs have clearly not followed the remedies or procedures provided and have thus failed to comply with HAVA s administrative requirements. In addition to the above state-based administrative procedures, HAVA also provides for federal judicial resolution as follows: Id The Attorney General may bring a civil action against any state or jurisdiction in an appropriate United States District Court for such declaratory and injunctive relief (including a temporary restraining order, a permanent or temporary injunction, or other order) as may be necessary to carry out the... requirements under [ 15482]. Plaintiffs here are not bringing the within cause through the Attorney General and, by virtue of filing their Complaint, have obviously not sought to do so

24 HAVA s inclusion of the specific remedies noted above further supports the fact that no individual, privately enforceable right is created under HAVA, thus further making Plaintiffs claims inactionable. In addition to the clear and unambiguous language of HAVA which evidences the existence of no individual or private right, Defendant further argues that HAVA s legislative history resolves any question as to Congress intent that the remedies specifically provided therein for violations the only remedies available. Senator Christopher Dodd, who worked directly on the HAVA legislation, complained about the fact that HAVA did not create a private right and blamed HAVA s lack of limited enforcement avenues on the House. Senator Dodd stated the following: While I would have preferred that we extend [a] private right of action..., the House simply would not entertain such an enforcement provision. Nor would they accept federal judicial review of any adverse decision by a State administrative body. However, the state-based administrative procedure must meet basic due process requirements and afford an aggrieved party a hearing on the record if they so choose. Cong. Rec (daily ed. Oct. 16, 2000) (Statement of Senator Dodd). Raising similar issues relative to the lack of strict enforcement provisions, the National Council of LaRaza opposed the final passage of HAVA, claiming that it [c]ontains weak enforcement provisions : Voters who are denied their right to vote because of this law cannot turn to the federal courts for a remedy. Rather, disenfranchised voters must either wait for the Department of Justice to take action or ask the same state election system that disenfranchised them to determine that there is a violation and provide a remedy for the problem. Cong. Rec (daily ed. Oct )

25 Accordingly, since HAVA does not create a privately enforceable right, plaintiffs complaint should be dismissed. Defendant recognizes that a Plaintiff suing under Section 1983 does not have the burden of showing an intent to create a private right of action because any private right conferred by federal law is presumptively enforceable by Section However, a state or state official may rebut the presumption by demonstrating that Congress specifically foreclosed a remedy under Section Smith v. Robinson, 468 U.S. 992, (1984). In such cases, as in this case, the Secretary of State s burden as a state official - is to demonstrate that Congress excluded private enforcement either expressly, through the use of specific evidence from the statute itself, or impliedly, by the creation of a comprehensive enforcement scheme that is incompatible with individual enforcement under Section Wright v. Roanoke Redevelopment and Housing Authority, 479 U. S. 418, 423 (1987); Blessing at 341. As discussed above, Congress specifically outlined the enforcement mechanisms and remedies available for alleged violations of HAVA. In addition, the provisions of HAVA do not contemplate a private right of action for individuals. Instead, enforcement of HAVA is achieved exclusively through the United States Attorney General s use of injunctive and declaratory relief, or the established state administrative procedure. 42 U.S.C ; 42 U.S.C Further, as noted above, to infer Congressional intent to provide a private right of action within HAVA is not consistent with the language contained in the Act or the Act s legislative history. Congressional intent must be inferred from statutory language, statutory structure, or some other source. Karahalios v. Nat l Fed. of Fed. Employees,

26 489 U.S. 527, 532 (1989). Absent such inference, the essential predicate for implication of an implied remedy simply does not exist. Id. at (quoting Thompson v. Thompson, 484 U.S. 174 (1989)). In instances where Congress has provided specific statutory remedies, courts must be especially reluctant to provide additional remedies. Karahalios, 489 U.S. at 533. Defendant submits that such is the case here as the remedies intended by Congress are a matter of record. To go beyond the remedies Congress provide would be far reaching and inappropriate. Defendant submits that HAVA s statutory enforcement scheme, combined with the act s legislative history, evidences Congress intent to preclude individual plaintiffs from bringing an implied cause of action under HAVA. Absent Congressional intent to create a cause of action, courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute. Alexander v. Sandoval, 532 U.S. 275, (2001). IV. PLAINTIFFS LACK STANDING Since HAVA does not contain an explicit or implied right of private action and excludes private remedies from its enforcement scheme, it cannot support a claim pursuant to Section 1983 and Plaintiffs Complaint should be dismissed. Standing is the threshold question in every federal case. Warth v. Seldin, 422 U.S. 490, 498 (1975). The Supreme Court has stated that the standing requirement limits federal court jurisdiction to actual controversies so that the judicial process is not transformed into a vehicle for the vindication of the value interests of concerned bystanders. Valley Forge Christian College v. Americans United for Separation of

27 Church and State, Inc. 454 U.S. 464, 473 (1982); Coal Operators & Associates, Inc. v. Babbitt, 291 F.3d 912, (6 th Cir. 2002). To satisfy Article III of the United States Constitution s standing requirement, plaintiffs must establish 1) they have suffered an injury in fact that is a) concrete and particularized and b) actual or imminent, as opposed to conjectural or hypothetical, 2) the injury is fairly traceable to the challenged action, and 3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Svcs., Inc., 528 U.S. 167, 181 (2000); Lujan v. Defenders of Wildlife, 504 U.S. 555, (1992). In the case at bar, Plaintiffs necessarily cannot establish standing to bring their cause of action pursuant to the provisions of HAVA. Without proper standing Plaintiffs Complaint and the claims set forth therein should be dismissed. In reasserting the arguments set forth above, Defendant submits that, even assuming arguendo that even if Section 1983 did afford Plaintiffs here a cause of action, Plaintiffs Complaint should still be dismissed. V. PLAINTIFFS ARE NOT ENTITLED TO RELIEF UNDER RULE 65 A. No Likelihood Of Success On The Merits Based upon the fact that Plaintiffs are not entitled to the relief they claim under Title 42 Section 1983, and the further fact that they lack standing, Defendant submits that Plaintiffs will be wholly unable to prevail on the merits of their Complaint. B. No Irreparable Injury Again, Defendant argues that since Plaintiffs lack any individual rights under HAVA and further lack proper standing to pursue any claims, they necessarily will not

28 suffer harm absent the grant of injunctive relief by this Honorable Court. Indeed, in asserting their claims, Plaintiffs assume into fact alleged rights which clearly do not exist and thus can suffer no harm from any denial of non-existing rights. C. Balancing of Interests Favors Defendant and upholding Ohio Law. Defendant here has acted in accordance with Ohio statute. His actions are furthermore in accord with the procedures and provisions outlined in HAVA. Asking this Court to strike down Defendant s directive and so strike Ohio Statute is asking for an illegal modification of the law itself. Although they do not specifically request the alteration of Ohio law, the body of Plaintiff s complaint and Brief boldly suggest that Ohio s election laws have never been modified to comply with the requirements of HAVA. Without saying so, Plaintiffs suggest that Ohio s laws are or should be preempted by HAVA. Defendant submits that the strength and merit of such allegations are borne out by Plaintiffs failure to follow through with any compelling argument relative to preemption. In that case, Plaintiffs are simply tossing out blanket accusations without any supportable basis in fact. On balancing the equities, it is quite clear that the Secretary of State, who has clearly acted in accordance with State Law and has complied with the requirements of HAVA as Ohio s chief election official, is more entitled to the protection of this Court than Plaintiffs who are without cognizable issues and any viable causes of action. D. Public Interest Not Served By An Injunction Plaintiffs attempts here to change Ohio law by judicial fiat instead of by means of the proper legislative process is contrary to the interests of the citizens of Ohio. For all of the foregoing reasons, Defendant respectfully submits that Plaintiffs Complaint should be dismissed and their requests for injunctive relief be denied