Case: 2:06-cv ALM-TPK Doc #: 587 Filed: 03/11/16 Page: 1 of 10 PAGEID #: 18280

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1 Case: 2:06-cv ALM-TPK Doc #: 587 Filed: 03/11/16 Page: 1 of 10 PAGEID #: IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION THE NORTHEAST OHIO COALITION : FOR THE HOMELESS, et al., : : Plaintiffs, : Case No. 2:06-CV : v. : JUDGE ALGENON L. MARBLEY : JON HUSTED, in his official capacity as : Secretary of the State of Ohio, et al., : : Defendants. : [PROPOSED] FINAL PRETRIAL ORDER (REQUIRED FORM) The parties in the above-captioned suit submit the following Joint Pretrial Statement. The Final Pretrial Conference is scheduled on March 14, 2016 at 2 pm pursuant to Rule 16 of the Federal Rules of Civil Procedure. I. APPEARANCES: For Plaintiffs Northeast Ohio Coalition for the Homeless and Columbus Coalition for the Homeless: Subodh Chandra Caroline Gentry Sandhya Gupta Ana P. Crawford Peter Pattakos (as needed) For Plaintiff Ohio Democratic Party: Donald J. McTigue Derek Clinger Corey Columbo For Defendants: Ryan Richardson Zachery Keller Tiffany Carwile Brodi Conover Sarah Pierce Page 1 of 10

2 Case: 2:06-cv ALM-TPK Doc #: 587 Filed: 03/11/16 Page: 2 of 10 PAGEID #: II. NATURE OF ACTION A. This is a civil-rights action under 42 U.S.C and the Voting Rights Act. B. The jurisdiction of the Court is invoked under 28 U.S.C. 1331, 1343(a)(3), 2201 and 2202, as well as 42 U.S.C The Court s jurisdiction is disputed. Defendants dispute some or all of Plaintiffs standing to institute this case and respectfully preserve any and all objections to continued jurisdiction as will be explained in Defendants Trial Brief. III. TRIAL LENGTH Bench Trial is set to begin on March 16, The parties do not agree as to the appropriate length of the trial. Plaintiffs estimate that the length of trial will be 20 business/trial days. Plaintiffs believe trial length could be shortened if Defendants, as the trial progresses, will stipulate to the fact that additional elections-board and individual-voter evidence will be similar to that already submitted. Otherwise, Plaintiffs will be in a position, they believe, where they need to continue to make their record. Defendants anticipate that presentation of their case in chief will take no longer than 3 trial days. Defendants respectfully object to a 20-day trial in this matter. Defendants object to the presentation of unnecessarily cumulative evidence. Defendants will consider any reasonable stipulation Plaintiffs propose in a good faith effort to streamline this case. IV. AGREED STATEMENTS AND LISTS: A. General Nature of Claims of the Parties 1. Plaintiffs' Claims: Plaintiffs challenge portions of Senate Bill 205 (relating to absentee voters) and Senate Bill 216 (relating to provisional voters). Application of these laws in the November 2014 and November 2015 elections has unlawfully disenfranchised thousands of members and constituents of Plaintiffs organizations in violation of the Voting Rights Act and the United States Constitution, and will continue to do so in future elections, including the 2016 elections. Count 1: Voting Rights Act (Literacy Tests) (formerly 42 U.S.C. 1973aa, now 52 U.S.C ). The challenged laws unlawfully require absentee and provisional voters, as a prerequisite to having their ballots be counted, to demonstrate (1) the ability to read, write, understand or interpret the absent-voter identification envelope or provisional-ballot affirmation form, and/or (2) familiarity with provisions of State law. The challenged laws impose perfect form requirements that are vague, arbitrary, hyper-technical, and unnecessarily difficult. These Page 2 of 10

3 Case: 2:06-cv ALM-TPK Doc #: 587 Filed: 03/11/16 Page: 3 of 10 PAGEID #: laws have not been, and cannot be, fairly applied or administered by Boards of Elections. The challenged laws create unlawful literacy tests in violation of the Voting Rights Act. Count 2: Voting Rights Act (Immaterial Errors Or Omissions) (formerly 42 U.S.C. 1971, now 52 U.S.C (a)(2)(B)). The challenged laws deny Plaintiffs members and constituents the right to have their vote be counted because of immaterial errors or omissions on their absentvoter identification envelope or provisional-ballot affirmation form. The only qualifications to vote in the Ohio Constitution are as follows: U.S. citizenship, age 18 or older, residency and registration to vote at least 30 days before the election. Neither the voter information that is required by the challenged laws, nor the requirement that each item of information provided by the voter precisely match the information in the statewide voter database, is material with regard to the issue of whether Plaintiffs members are qualified to vote. The challenged laws disenfranchise voters on the basis of immaterial errors or omissions in violation of the Voting Rights Act. Count 3: 14th Amendment (Procedural Due Process). Plaintiffs members have a liberty interest in the fundamental right to vote, and they cannot be deprived of that right without due process of law. The challenged laws (1) do not provide absentee voters with constitutionally adequate predeprivation due process, (2) do not provide provisional voters with any pre-deprivation due process, and (3) do not provide either absentee or provisional voters with any post-deprivation due process. The State s asserted interests in the challenged laws are neither legitimate nor compelling, and do not justify the State s failure to provide constitutionally adequate due process to Plaintiffs members before depriving them of their right to vote. The challenged laws disenfranchise voters without procedural due process in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Count 4: 14th Amendment (Anderson/Burdick Undue Burden) & 1st Amendment (Free Speech/Association). The challenged laws severely and substantially burden the right of Plaintiffs members to vote. The challenged laws are not justified by any relevant, legitimate, or compelling State interest. Nor are they justified by an interest that is sufficiently weighty to justify the restrictions. Plaintiffs members and constituents have been and will be severely burdened by being deprived of their right to have their absentee or provisional ballot be counted. This disenfranchisement often occurs without adequate notice and without an adequate opportunity to correct the alleged error, omission, or mismatch with the statewide voter database. After the election is over, Plaintiffs members or constituents who were deprived of their right to vote are almost never informed that their vote was not counted. Plaintiffs members or constituents also have been and will be severely burdened by their inability to know about, prevent or reduce the risk of future disenfranchisement that is caused by an error in the statewide voter database or in records maintained by the Board of Elections. Plaintiffs members also have been and will be severely burdened by the unfair and unequal application of these laws by elections boards. During the November 2014 and November 2015 elections, the challenged laws disenfranchised thousands of voters in violation of the Fourteenth Amendment to the United States Constitution and the Free Speech and Association Clauses of the First Amendment to the United States Constitution. Page 3 of 10

4 Case: 2:06-cv ALM-TPK Doc #: 587 Filed: 03/11/16 Page: 4 of 10 PAGEID #: Count 5: 14th Amendment (Equal Protection Bush v. Gore Lack of Uniform Standards). The challenged laws have not been, and cannot be, uniformly and equally applied by Ohio s 88 Boards of Elections to all voters who cast absentee and provisional ballots. Boards of Elections have applied non-uniform standards to similarly situated ballots, which has resulted in ballots that have substantially similar errors or omissions on the accompanying forms being counted in some counties and rejected in other counties. Also, some Boards of Elections strictly enforce the challenged laws whereas other Boards of Elections have not done so. Constitutional concerns regarding the post-election Day review and determination of validity of absent voter identification envelopes and provisional ballot affirmation forms are especially great because (1) the preliminary outcome of the election is already known and (2) the Board of Elections knows the political affiliation, if any, of each voter. The challenged laws violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Count 6: 14th Amendment (Equal Protection Bush v. Gore Arbitrary & Disparate Treatment). The challenged laws only restrict the rights of Ohio voters who cast absentee or provisional ballots. They have no impact on voters who cast regular ballots at their polling place on Election Day. These laws therefore have the effect of valuing the votes of regular voters over the votes of absentee and provisional voters, and lead to the arbitrary and disparate treatment of voters. And provisional-ballot voters are not treated the same as absentee voters with respect to the right to cure any potential problems including correcting any minor perceived errors with the filling-in of names and addresses. The State s asserted interests in these laws are not relevant, legitimate, compelling, or sufficiently weighty to justify the differences in treatment. The challenged laws violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Count 7: 14th Amendment (Substantive Due Process). The challenged laws have imposed extraordinary voting restrictions on absentee and provisional voters and have rendered the State s voting system fundamentally unfair. These laws also have operated in a manner that renders the State s voting system fundamentally unfair. The challenged laws violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Count 8: Voting Rights Act (Section 2 Vote Denial/Race Discrimination) (formerly 42 U.S.C. 1973, now 52 U.S.C ). The challenged laws impose voting qualifications, prerequisites, standards, practices, or procedures that deny or abridge the right to vote on account of race or color. Because of the application of the challenged laws, minority voters have less of an opportunity than white voters to participate in the political process and to elect representatives of their choice. The discriminatory burden on these voters is caused by or linked to social and historical conditions that have produced discrimination against minorities. The totality of the circumstances shows that these laws impose a discriminatory burden on minority voters, insofar as a disproportionate impact has led to a discriminatory result. The challenged laws cause vote denial/race discrimination in violation of the Voting Rights Act. Count 9: 14th & 15th Amendments (Race Discrimination). An invidious purpose to discriminate on the basis of race was a motivating factor in the passage and enactment of the challenged laws. The challenged laws intentionally discriminate on the basis of race in violation of the Fourteenth and Fifteenth Amendments to the United States Constitution. Page 4 of 10

5 Case: 2:06-cv ALM-TPK Doc #: 587 Filed: 03/11/16 Page: 5 of 10 PAGEID #: Count 10: 1st Amendment (Voter Viewpoint Discrimination) & 14th Amendment (Equal Protection). The challenged laws manipulate and distort a State electoral system on a partisan basis by creating barriers to certain voters who are believed to have a certain political viewpoint. Specifically, the challenged laws intentionally and unlawfully discriminate against, and have a disparate impact on, Plaintiffs members who support the Democratic Party. Under both the heightened standard of review that applies to violations of the First Amendment to the United States Constitution, and the strict scrutiny test that applies to suspect classes under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, these laws should be enjoined. 2. Defendants Claims: As will be explained in greater detail in Defendants trial brief, the Challenged Laws comport fully with the Constitution, all aspects of the Voting Rights Act, and all other applicable state and federal laws. The laws impose, at most, a minimal burden on the right to vote and are fully justified by important state interests. Defendants do not assert any affirmative counterclaims in this matter, but oppose all of Plaintiffs claims and reassert the defenses asserted in their Answer to the Supplemental Complaint (Doc. 454). B. Uncontroverted Facts The following facts are established by admissions in the pleadings or by stipulations of counsel. (Set out uncontroverted or uncontested facts in chronological order.) Plaintiff Northeast Ohio Coalition for the Homeless ( NEOCH ) is a non-profit charitable organization operating in the City of Cleveland. Plaintiff Columbus Coalition for the Homeless ( CCH ) is a coalition of service providers, currently and formerly homeless people, and concerned citizens. Plaintiff Ohio Democratic Party ( ODP ) is a political-party organization dedicated to electing Democratic Party candidates to public office throughout Ohio. Jon Husted is the Secretary of State of Ohio Mike DeWine is the Ohio Attorney General and representative of Intervenor-Defendant State of Ohio There are multiple ways by which voters can cast a ballot in Ohio, including voting inperson on Election Day and voting early through absentee voting in person or by mail. The Ohio General Assembly instituted no-excuse absentee voting in Since then, many voters have taken advantage of Ohio s liberal absentee voting opportunities. Page 5 of 10

6 Case: 2:06-cv ALM-TPK Doc #: 587 Filed: 03/11/16 Page: 6 of 10 PAGEID #: Most voters, however, cast a regular ballot on Election Day. In this lawsuit, Plaintiffs challenge two laws, S.B. 205 and S.B Both S.B. 205 and S.B. 216 were enacted in On June 2, 2014, Defendant Husted issued Advisory summarizing changes enacted by S. B. 205, S. B. 216 and S. B On June 30, 2014, Defendant Husted prescribed Form 11-S for use by absentee voters with errors or omissions on their ID envelopes. On July 2, 2014, Defendant Husted issued Directives , , and providing instructions implementing the three referenced Senate Bills. On September 5, 2014, Secretary Husted issued Directive and re-prescribed Form 11-S. The parties intend to work in good faith before and during trial to determine whether there are additional uncontroverted facts. C. Contested Issues of Fact and Law Pursuant to this Court s Orders, both Plaintiffs and Defendants intend to file trial briefs on March 10, 2016 describing in detail their respective positions regarding the factual and legal issues that are contested in this matter. D. Witnesses 1. See attached Appendix D for Plaintiffs witness list. 2. See attached Appendix E for Defendants witness list. 3. There is reserved to each of the parties the right to call such rebuttal witnesses as may be necessary. The parties shall endeavor to provide notice to the Court and the other parties at least one day in advance of calling any rebuttal witness to testify. Note: Only witnesses listed in the Pretrial Order will be permitted to testify at the trial, except witnesses called solely for the purpose of impeachment or for good cause shown. E. Expert Witnesses Suggested language: Parties are limited to the following number of expert witnesses, including treating physicians, whose names have been disclosed to the other side. 1. Plaintiff: List all expert witnesses plaintiff intends to call at trial. Professor Jeffrey Timberlake Page 6 of 10

7 Case: 2:06-cv ALM-TPK Doc #: 587 Filed: 03/11/16 Page: 7 of 10 PAGEID #: Defendant: List all expert witnesses defendant intends to call at trial. Dr. Nolan McCarty Dr. M.V. (Trey) Hood III Counsel have attached a résumé or curriculum vitae of each expert's qualifications as a part of Appendix A herein. F. Depositions During trial, reading of depositions frequently presents problems that can be eliminated by advance discussion and preparation. The pretrial order shall list depositions to be read into evidence and any objections thereto identifying the objecting party, portions objected to, and the basis for the objections. All irrelevant and redundant matter and all colloquy between counsel in the deposition must be eliminated when the deposition is read. See also the requirements of Fed. R. Civ. P. 26(a)(3)(B). Plaintiffs intend to offer deposition testimony as set forth in their deposition designations filed on March 2, 2016 (Doc. # 558). In addition, the deposition of Cuyahoga County Board of Elections officials took place on March 8, Plaintiffs will submit any designations of the Cuyahoga deposition by Monday, March 14, Defendants object to Plaintiffs deposition designations as set forth in Defendants Objections to Plaintiffs Deposition Designations and Defendants Counter-Designations, and reserve the right to object to any designations of the Cuyahoga deposition. It is further possible that certain individual-voter witnesses of Plaintiffs who are too infirm to attend trial will be deposed via trial deposition, but Plaintiffs are endeavoring to eliminate the need for that. Defendants object to the introduction of testimony of any witness not disclosed before the close of discovery, or within a reasonable amount of time before trial, but will work with Plaintiffs in a good-faith attempt to resolve disputes and accommodate the needs of any witness who is too infirm to attend trial. Defendants intend to offer testimony from the 30(b)(6) depositions of Donald Strasser, Greg Beswick, and Brian Davis as set forth in their deposition designations filed on March 2, 2016 (Doc. # 557). The deposition of Brian Davis was completed on March 9, Defendants will submit any additional designations of Mr. Davis s deposition by Monday, March 14, Plaintiffs object to certain of Defendants deposition designations, as set forth in Plaintiffs Objections to Defendants Deposition Designations, filed on March 8, 2016, and reserve the right to object to any additional designations of Mr. Davis s deposition. Defendants also counter designate portions of deposition testimony as described in Defendants Objections to Plaintiffs Deposition Designations and Defendants Counter-Designations to be admitted in the event Plaintiffs designations are admitted. Page 7 of 10

8 Case: 2:06-cv ALM-TPK Doc #: 587 Filed: 03/11/16 Page: 8 of 10 PAGEID #: G. Exhibits Needless Court time is taken up in the marking of exhibits during trial. Accordingly, the exhibit list should be prepared prior to trial and set forth in the pretrial order. Exhibits that are to be admitted without objection should be listed first, then followed by a listing of exhibits to which there may be objections, noting by whom the objection is made (if there are multiple adverse parties), the nature of the objection, and the authority supporting the objection. Exhibit markers should be attached to all exhibits at the time they are shown to opposing counsel during the preparation of the pretrial order. A supply of marking tags for exhibits may be obtained from the courtroom deputy clerk. They should be attached to the lower right-hand corner whenever possible. See also the requirements of Fed. R. Civ. P. 26(a)(3)(C). Except for good cause shown, the Court will not permit the introduction of any exhibits unless they have been listed in the pretrial order, with the exception of exhibits to be used solely for the purpose of impeachment. Exhibit lists should be attached as appendices to the pretrial order as follows: Appendix B Appendix C Plaintiff Exhibits Defendant Exhibits H. Stipulations Counsel have fully complied with the Stipulations section of the Court's Order Setting Trial Date and Settlement Conference. V. MODIFICATION The Final Pretrial Order may be modified at or prior to the trial of this action to prevent manifest injustice. Such modification may be made by application of counsel or on motion of the Court. VI. JURY INSTRUCTIONS Jury instructions are not applicable in this matter. VII. REMAINING ISSUES AND OTHER MATTERS The following legal issues must be resolved before the beginning of trial: Counsel bring the following additional matters to the Court's attention: Plaintiffs Witness List: Page 8 of 10

9 Case: 2:06-cv ALM-TPK Doc #: 587 Filed: 03/11/16 Page: 9 of 10 PAGEID #: Defendants have a number of objections to Plaintiffs witness list. Defendants allege the list is overbroad (approximately 116 individuals and organizations), Defendants specifically object to the inclusion of individuals whose testimony Defendants allege would be irrelevant, unduly burdensome, designed to harass the witness, cumulative, or otherwise violative of the Federal Rules of Civil Procedure. Plaintiffs have shortened their initial list and will continue to do so and assert that those who remain on the list are important and offer relevant and critical evidence for Plaintiffs to meet their burdens under Anderson/Burdick and other authority discussed in Plaintiffs trial brief. The vast majority of witnesses are in the may call category. The Parties will continue to work together in efforts to minimize the need for witnesses. Pretrial Motions: There are two pending defense motions in limine, concerning (1) the introduction of testimony and exhibits related to legislative intent, and (2) conclusions rendered by Plaintiff s designated expert, Dr. Jeffrey Timberlake. ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE /s/subodh Chandra for NEOCH and CCH /s/donald J. McTigue for ODP Counsel for Plaintiff /s/ Ryan Richardson Counsel for Defendant Page 9 of 10

10 Case: 2:06-cv ALM-TPK Doc #: 587 Filed: 03/11/16 Page: 10 of 10 PAGEID #: CERTIFICATE OF SERVICE I certify that on March 11, 2016, my office filed the foregoing document using the Court s online-filing system, which will send a copy of the foregoing to all counsel of record. I further certify that on March 10, 2016, I served the foregoing document with appendices on opposing counsel of the Ohio Attorney General s office via , after Plaintiffs counsel attempted several times unsuccessfully to connect to the Court s ECF system. The system appeared to be down on March 10 evening. /s/ Subodh Chandra One of the Attorneys for Plaintiffs Page 10 of 10