IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO WESTERN DIVISION ) ) ) ) ) ) ) ) ) ) ) Judge Carr

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO WESTERN DIVISION THE LEAGUE OF WOMEN VOTERS OF OHIO, et al., vs. Plaintiffs, J.KENNETH BLACKWELL, Secretary of State, Defendant. ) ) ) ) ) ) ) ) ) ) ) Case No. 3:04 CV 7622 Judge Carr INTERVENORS' MOTION TO DISMISS AND MEMORANDUM CONTRA PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Now come Intervenors, by and through undersigned counsel, and move the Court pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the above-referenced case. A Memorandum in Support is attached hereto. Respectfully Submitted, /s/ Truman A. Greenwood Truman A. Greenwood (0014256) Theodore M. Rowen (0014245) James P. Silk, Jr. (0062463) SPENGLER NATHANSON P.L.L. 608 Madison Avenue, Suite 1000 Toledo, Ohio 43604-1169 Phone 419-241-2201 Fax 419-241-8599 Attorneys for Intervenors 1046874v2

TABLE OF CONTENTS Page TABLE OF CONTENTS...i TABLE OF AUTHORITIES...ii I. STATEMENT OF THE ISSUES TO BE DECIDED...1 II. SUMMARY OF THE ARGUMENT...1 III. APPLICABLE LEGAL STANDARDS...4 A. The Federal Rules of Civil Procedure Rule 12(b)(6) Standard...4 B. The Federal Rules of Civil Procedure Rule 65 Preliminary Injunction Standard....4 IV. LAW AND ARGUMENT...5 A. Plaintiffs Claim Cannot Stand Because, As A Threshold Matter, Neither Section 1983 Nor HAVA Can Serve As The Appropriate Basis For This Action...5 1. The Court Should Dismiss Plaintiff s Complaint For Failure To State A Claim Upon Which Relief Can Be Granted Because HAVA Does Not Create A Right That Is Enforceable In A 1983 Action...5 2. The Court Should Dismiss Plaintiffs' Complaint For Failure To State A Claim Upon Which Relief Can Be Granted Because HAVA Does Not Create A Private Right Of Action....8 B. Plaintiffs Claim Cannot Stand Because, On The Merits, Plaintiffs Cannot Establish The Requisite Strong Or Substantial Likelihood Of Success...8 1. Directive 2004-07 Does Not Violate HAVA...9 2. Directive 2004-33 Does Not Violate HAVA....12 3. Neither Directive Violates The Fail Safe Voting Procedures In HAVA, But Both Further The Important Governmental Function Of Preserving The Integrity Of The Electoral Process....15 V. CONCLUSION...20 CERTIFICATE OF SERVICE...21 1046874v2 i

TABLE OF AUTHORITIES Cases Page Alexander v. Sandoval, 532 U.S. 275 (2001)... 6 Bell v. Marinko, 235 F.Supp.2d 772, (N.D. Ohio 2002)... 3, 14 Blessing v. Freestone, 520 U.S. 329 (1997)... 8 California v. Sierra Club, 415 U.S. 287 (1981)... 6 Cannon v. Univ. of Chicago, 441 U.S. 677 (1979)... 6 Chapman v. Houston Welfare Rights Org., 441 U.S. 600 (1979)... 6 Dunn v. Blumstein, 405 U.S. 330 (1972)... 16, 17, 19 Florida Democratic Party v. Hood et.al... 3 Golden State Transit Corp. v. Los Angeles, 493 U.S. 103 (1989)... 5 Golden v. Kelsey-Hayes Co., 73 F.3d 648, (6th Cir. 1996)... 5 Gonzaga University v. Doe, 536 U.S. 273 (2002)... 6, 7 Gonzales v. National Bd. of Medical Examiners, 225 F.3d 620 (6th Cir. 2000, cert. denied, 532 U.S. 1038 (2001)... 5 In re Delorean Motor Co., 755 F.2d 1223 (6th Cir. 1985)... 5 Mason County Medical Ass'n v. Knebel, 563 F.2d 256 (6th Cir. 1977)... 5 Mason v. Missouri, 179 U.S. 328 (1900)... 11 McKay v. Altobello, 1997 U.S. Dist. LEXIS 7162 (D. La., 1997)... 10 Meador v. Cabinet for Human Resources, 902 F.2d 474 (6th Cir.), cert. denied, 498 U.S. 867 (1990)... 4 Misch v. Community Mutual Ins. Co., 896 F. Supp. 734 (S.D. Ohio 1994)... 4 Mobil Corp. v. Marathon Oil Co., 669 F.2d 366 (6th Cir. 1981)... 5 Smith v. Robinson, 468 U.S. 992, 1004 (1984)... 8 The Sandusky Democratic Party, et al. v. Blackwell (Case 3:04 CV 7582)... 1, 8 1046874v2 ii

United States v. Classic, 313 U.S. 299 (1941) (overruled on other grounds)... 11 Vargas v. Calabrese, 634 F.Supp. 910 (D. N.J. 1986)... 10 Windsor v. The Tennessean, 719 F.2d 155, (6th Cir. 1983), cert. denied, 469 U.S. 826 (1984)... 4 Wright v. Roanoke Redevelopment and Housing Authority, 479 U.S. 418 (1987)... 8 Statutes 42 U.S.C. 15301 et seq... 1 42 U.S.C. 15482... 18 42 U.S.C. 15482(a)(4)... 3, 13 42 U.S.C. 15483... 11, 18 42 U.S.C. 15483(a)(5)... 9 42 U.S.C. 15483(b)(2)... 12 42 U.S.C. 15483(b)(2)(A)(i)... 12 42 U.S.C. 15483(b)(2)(A)(ii)... 12 42 U.S.C. 15483(b)(2)(B)... 15, 16 42 U.S.C. 1973(c)... 17 42 U.S.C. 1983...passim R.C. 3503.01... 13 R.C. 3503.14... 10, 11 R.C. 3599.12... 13 R.C. Title 35... 11 Rules Fed.R.Civ.P. 12(b)(6)... 4 8 House of Representatives' Report 107 Part I, December 10, 2001, p.35 (from the Committee on House Administration)... 15 1046874v2 iii

I. STATEMENT OF THE ISSUES TO BE DECIDED Does the Help America Vote Act of 2002 (42 U.S.C. 15301 et seq) create a private right of action, enforceable in an action brought pursuant to 42 U.S.C. 1983, for a Plaintiff who has failed to follow the exclusive administrative procedures established by the Act for redress of alleged violations of the Act? Does the Help America Vote Act of 2002 require a state to abandon its statutory system of precinct-based elections in favor of a system that uses counties as the applicable jurisdiction for determining the validity of a vote? Does the Help America Vote Act of 2002 prohibit a state from requiring a first time voter who has not completed Ohio s registration process to show identification at the polls? II. SUMMARY OF THE ARGUMENT This case is brought by a number of Plaintiffs as a companion case to The Sandusky Democratic Party, et al. v. Blackwell (Case 3:04 CV 7582), filed before this Court by the Ohio Democratic Party and others. The case is also a part of a national scheme of litigating state election procedures and laws in an attempt to seek remedies from the courts that were not contemplated by HAVA and are not consistent with the Act itself. If the arguments proposed by Plaintiffs are adopted by the Court, total chaos would result at the polls (which is, perhaps, Plaintiffs ulterior motive in the first place). That chaos stems from the increased likelihood that unqualified electors will attempt to vote provisional ballots at polling places where they are not registered to vote. In large part, the instant case is a reiteration of the earlier case brought by the Ohio Democratic Party. These Plaintiffs also claim that HAVA permits them to bring claims under 42 U.S.C. 1983 and similarly argue, erroneously, that HAVA requires that votes cast in any precinct in the county must be counted. The instant case contains several key distinctions, however. First, these Plaintiffs raise a new issue: whether or not HAVA precludes a state from requiring that a voter show identification at the polling place when voting for the first time in certain circumstances. 1046874v2 1

Second, the instant Complaint and accompanying Memorandum are fraught with mischaracterizations of the law, misleading arguments, and internal inconsistencies. And finally, these Plaintiffs argue, even more strenuously than was argued in the companion case, that HAVA dictates the method by which states must count provisional ballots. Each new argument, as well as each argument repeated from the companion case, is without merit. Plaintiffs invoke the jurisdiction of this Court under 42 U.S.C. 1983 and the Help America Vote Act of 2002 (42 U.S.C. 15301 et seq.) ( HAVA ). Plaintiffs Complaint seeks a preliminary and permanent injunction and a declaration that two Directives issued by the Ohio Secretary of State violate HAVA. However, neither 42 U.S.C. 1983 nor HAVA provides an appropriate vehicle for Plaintiffs to bring the instant action in federal court. HAVA does not confer an unambiguous right enforceable by a private plaintiff under 1983, and HAVA s statutory text and legislative history clearly foreclose the possibility that it creates a private right of action to enforce its provisions. Even if this Court determines that dismissal on the above procedural grounds is not warranted, Plaintiffs present an unconvincing case on the merits. Plaintiffs claim that two Secretary of State Directives Directives 2004-07 and 2004-33 violate HAVA. As to the new issue raised herein, Plaintiffs argue that Directive 2004-07 violates HAVA, and therefore should be preempted by HAVA, because the Directive requires pollworkers to check the identification of certain first-time voters who did not provide verifiable identification at the time they registered. Plaintiffs argument is wholly without merit. Plaintiffs have seriously misinterpreted provisions of HAVA and the Directive, both of which support a state s authority to require a voter to present valid identification before her ballot will be included in the canvass. In fact, not only does the state Directive comply with federal law, the Directive also mirrors, almost 1046874v2 2

precisely, the requirements of HAVA. Thus, while Plaintiffs argue that the Directive violates HAVA, they fail to point out that the Directive is, essentially, identical to HAVA. Moreover, as to the issue of identification, HAVA established the floor, not the ceiling. States are free to require even more identification from voters without violating HAVA. Because the Directive at issue here is entirely consistent with HAVA, Plaintiffs preemption argument is not likely to succeed on the merits. With regard to Directive 2004-33, which speaks to the issue of provisional ballots, Plaintiffs argue that HAVA requires states to utilize a county-wide system of casting and counting ballots. To be sure, HAVA very clearly requires that a voter must be eligible to vote in the "jurisdiction" in which his vote is cast, but HAVA does not define the term "jurisdiction." Very recently, in Florida Democratic Party v. Hood et.al, the U.S. District Court of the Northern District of Florida ruled that HAVA does not govern this issue and confirmed that decisions on both voter eligibility and on whether or not a provisional vote should be counted are to be made "in accordance with State law." 42 U.S.C. 15482(a)(4); Florida Democratic Party v. Hood et.al (A copy of this decision will be forwarded as soon as it is issued). In Ohio, state law establishes a precinct-based system. In fact, this Court very recently ruled that [r]esidency within a precinct is a crucial qualification to a voter s registration and ability to vote. Bell v. Marinko, 235 F.Supp.2d 772, 776 (N.D. Ohio 2002). HAVA defers to state law, and state law establishes the applicable jurisdiction as a precinct, not a county. Thus, there is no strong or substantial likelihood that Plaintiffs argument concerning Directive 2004-33 will succeed on the merits. For the reasons set forth below, Intervenors respectfully urge this Court to dismiss the instant action. In the alternative, Intervenors ask this Court to find that Plaintiffs are not entitled 1046874v2 3

to a preliminary injunction because they cannot establish a strong or substantial likelihood that their claims will succeed on the merits. III. APPLICABLE LEGAL STANDARDS A. The Federal Rules of Civil Procedure Rule 12(b)(6) Standard As this Court is aware, dismissal under Rule 12(b)(6) is appropriate where a complaint lacks a cognizable claim. Misch v. Community Mutual Ins. Co., 896 F. Supp. 734 (S.D. Ohio 1994). The complaint must be construed in the light most favorable to the plaintiff, and all factual allegations contained in the complaint must be treated as true. Meador v. Cabinet for Human Resources, 902 F.2d 474 (6th Cir.), cert. denied, 498 U.S. 867 (1990); Windsor v. The Tennessean, 719 F.2d 155, 158 (6th Cir. 1983), cert. denied, 469 U.S. 826 (1984). In practice, "a complaint... must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Misch v. Community Mutual Ins. Co., 896 F. Supp. at 738. As will be demonstrated below, Plaintiffs have failed to state a cognizable claim because HAVA speaks to election officials, not voters, and thus does not confer upon Plaintiffs the unambiguous individual rights needed to seek redress under 42 U.S.C. 1983. Further, even if HAVA did create such rights, both the statutory text and the legislative history clearly establish that Congress foreclosed the avenue a suit by a private litigant to enforce HAVA in federal court that Plaintiffs seek to pursue. B. The Federal Rules of Civil Procedure Rule 65 Preliminary Injunction Standard. It is well established that in order for a preliminary injunction to be issued, four criteria must be evaluated: (1) whether the plaintiff has shown a strong or substantial likelihood of success on the merits; (2) whether the plaintiff has shown irreparable injury; (3) whether the 1046874v2 4

issuance of a preliminary injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuing the preliminary injunction. Golden v. Kelsey-Hayes Co., 73 F.3d 648, 653 (6th Cir. 1996); In re Delorean Motor Co., 755 F.2d 1223, 1228 (6th Cir. 1985); Mobil Corp. v. Marathon Oil Co., 669 F.2d 366 (6th Cir. 1981); Mason County Medical Ass'n v. Knebel, 563 F.2d 256, 261 (6th Cir. 1977). "Although no one factor is controlling, a finding that there is simply no likelihood of success on the merits is usually fatal." Gonzales v. National Bd. of Medical Examiners, 225 F.3d 620, 625 (6th Cir. 2000, cert. denied, 532 U.S. 1038 (2001). Here, Plaintiffs cannot establish a likelihood of success on the merits, much less a strong or substantial likelihood of success. HAVA clearly leaves voter eligibility issues to the states, and Ohio law (including Directive 2004-07 and 2004-33) concerning precinct-based voting is entirely consistent with and contemplated by HAVA. IV. LAW AND ARGUMENT A. Plaintiffs Claim Cannot Stand Because, As A Threshold Matter, Neither Section 1983 Nor HAVA Can Serve As The Appropriate Basis For This Action. 1. The Court Should Dismiss Plaintiff s Complaint For Failure To State A Claim Upon Which Relief Can Be Granted Because HAVA Does Not Create A Right That Is Enforceable In A 1983 Action. Plaintiffs attempt to circumvent HAVA's enforcement scheme by incorporating alleged violations of HAVA into a claim for relief pursuant to 42 U.S.C. 1983. Plaintiffs attempt must fail, however, because HAVA speaks to the responsibilities and conduct of election officials, and thus it does not create a right enforceable under 1983. A claim based on a statutory violation is enforceable under 1983 only when the statute creates rights, privileges or immunities in the particular plaintiff. Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 107-108 (1989). Nothing "short of an unambiguously conferred right 1046874v2 5

[will] support a cause of action brought under 1983." Gonzaga University v. Doe, 536 U.S. 273, 283 (2002). To determine whether a statute confers an unambiguous right, a court must examine the language of the statute and the Congressional intent behind the statute. California v. Sierra Club, 415 U.S. 287, 294 (1981) (citing Cannon v. Univ. of Chicago, 441 U.S. 677, 690-693 (1979)). Focusing on whether the statute is phrased as protection for individuals, as opposed to a directive to government officials, is appropriate because the only question under 1983 is whether individuals can enforce the law not what standard is established by the law. See Gonzaga, 536 U.S. at 285 (42 U.S.C. 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."); Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617 (1979) ("[O]ne cannot go into court and claim a 'violation of 1983' for 1983 by itself does not protect anyone against anything"). Section 15482(a) of HAVA is directed at the "person regulated" i.e., the "election official" and mandates that the election official "permit" a provisional ballot to be cast. Far from an "unmistakable focus" on the individual, this language "speaks only to" state election officials. Gonzaga, 536 U.S. at 287. Thus, HAVA does not contain the "rights-creating' language critical to showing the requisite Congressional intent to create new rights." Gonzaga Univ., 536 U.S. at 287, quoting Alexander v. Sandoval, 532 U.S. 275, 288-89 (2001). Because HAVA speaks to election officials, not voters, and creates no individual right enforceable under 42 U.S.C. 1983, Plaintiffs Complaint should be dismissed. Furthermore, HAVA's inclusion of mandatory enforcement procedures demonstrates that Congress never intended to create individually enforceable private rights, such as those Plaintiffs 1046874v2 6

purport to pursue in this litigation. Gonzaga at 289-90 (holding that the fact that aggrieved person had review mechanism counsel[s] against "finding congressional intent to create individually enforceable private rights."). HAVA provides for two separate enforcement procedures through which complaints alleging HAVA violations must be raised. The first procedure permits the United States Attorney General to bring federal civil actions seeking any declaratory or injunctive relief necessary against any state for not complying with HAVA's provisions. The second procedure requires the states to develop and implement a state-based procedural process by which complaints may be brought for alleged HAVA violations. Plaintiffs have apparently not attempted to avail themselves of either procedure mandated by HAVA. The legislative history of HAVA unequivocally establishes that Congress intended the two remedies discussed above to be the exclusive remedies for a HAVA violation. 1 The existence of two specifically enumerated remedial avenues lends additional support to the argument that HAVA does not create an individual right enforceable in a 1983 action. Because HAVA is not enforceable in a 1983 action in federal court, Plaintiffs have failed to state a claim upon which relief can be granted. For the foregoing reasons, in addition to the reasons set forth in Intervenors Motion to Dismiss and Memorandum Contra Plaintiffs Motion for Preliminary Injunction filed in this Court on October 4, 2004 in the matter of The Sandusky 1 Upon the House of Representatives' passage of HAVA, Senator Christopher Dodd (D Connecticut) openly lamented that HAVA has only limited enforcement avenues, but noted that the House of Representatives simply would not allow more stringent measures: 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. 510504 (Daily Ed. Oct. 16, 2000) (Statement of Senator Dodd). 1046874v2 7

Democratic Party, et al. v. Blackwell (Case 3:04 CV 7582), which is hereby incorporated by reference, Plaintiffs' Complaint should be dismissed. 2. The Court Should Dismiss Plaintiffs' Complaint For Failure To State A Claim Upon Which Relief Can Be Granted Because HAVA Does Not Create A Private Right Of Action. Even if Plaintiffs could successfully demonstrate that HAVA confers an individual right enforceable under 42 U.S.C. 1983, Plaintiffs' claim would still be barred because Congress foreclosed individuals from pursuing private causes of action under HAVA. Where Congress excludes 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 1983, Congress will be deemed to have "specifically foreclosed a remedy under section 1983." Smith v. Robinson, 468 U.S. 992, 1004-5 (1984); Wright v. Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 423 (1987); Blessing v. Freestone, 520 U.S. 329, 341 (1997). 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. 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. Because 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 42 U.S.C. 1983. Therefore, because Plaintiffs have failed to state a claim, Plaintiffs' Complaint should be dismissed. B. Plaintiffs Claim Cannot Stand Because, On The Merits, Plaintiffs Cannot Establish The Requisite Strong Or Substantial Likelihood Of Success 1046874v2 8

1. Directive 2004-07 Does Not Violate HAVA. Both State And Federal Regulations Require Proof of Identity at Registration. Plaintiffs fallaciously argue that a voter who has not provided identification is a validly registered voter who is eligible to vote. Prior to the issuance of Directive 2004-07, Plaintiffs argue, Ohio did not require any class of voter to present identification at the polling place on Election Day a condition of voting or having their votes counted. Plaintiffs fail to note, however, that every Ohio voter is required, and has always been required, to present identification at least one time in order to be properly registered and authorized to vote. Plaintiffs set forth lengthy quotes from the Congressional Record where this argument was vigorously debated. But Plaintiffs conveniently fail to set forth the result of those debates and the democratic process of compromise that resulted in HAVA. HAVA itself requires that voter registration applications submitted after January 2003 must include either: 1) A driver s license number; or 2) the last four digits of the voter s social security number. 42 U.S.C. 15483(a)(5). 2 Ohio s voter registration form similarly requires either: 1) A driver s license number; or 2) the last four digits of the voter s social security number Ohio Application for Voter Registration, (Attached as Exhibit A.) Thus, while Plaintiffs argue that nothing in Ohio law requires that any other registered voter show identification on election day, Plaintiffs fail to note that all Ohioans are required to 2 Plaintiffs devote substantial time to arguments that this requirement is unconstitutional, carefully wording their challenges as attacks only upon Directive 2004-07. Regardless of how their arguments are worded, Plaintiffs challenge to these provisions is a challenge to the constitutionality of HAVA itself. Yet Plaintiffs failed to name the U.S. Attorney General as a party to this action as required. As such, this argument is not properly raised. 1046874v2 9

show identification in order to register. An individual who has not established his identity is, in fact, not a registered voter and not eligible to vote. In fact, requiring identification for registration is supported by HAVA, the National Voter Registration Act, and case law. Ohio Revised Code 3503.14 provides that the registration form "shall set forth the eligibility requirements needed to qualify as an elector and meet the requirements of the National Voter Registration Act of 1993." In turn, the National Voter Registration Act permits voter registration forms to require a minimal amount of information to: i) prevent duplicate voter registrations; and (ii) enable State election officials to assess the eligibility of the applicant and to administer voter registration and other parts of the election process. Clearly, identifying the voter is a fundamental and critical step in this process. For example, in McKay v. Altobello, 1997 U.S. Dist. LEXIS 7162 (D. La., 1997), the Court examined Louisiana's requirements that registrants provide their social security number and mother's maiden name as identification. While the requirement for providing the complete social security number was stricken as violating the Privacy Act, the Court upheld Louisiana's requirement that the voter provide his mother's maiden name: The NVRA provisions at issue gives to each state discretion to do what is "necessary" to assess the eligibility of the applicant and to administer the state's election process. Thus, election officials for each state must determine the need for registration information based on the experience peculiar to that state. Although other states may utilize different identifying factors, determinations made in another state have little meaning to Louisiana elections. As stated above, it is the commissioner of elections position that this information is necessary. This Court sees no reason to question it." Similarly, in New Jersey, a court upheld that state s practice of questioning voters qualifications by a district board, finding that the state s interest in combating voter fraud outweighed voter interests in voting without undue interference. Vargas v. Calabrese, 634 F.Supp. 910, 929 (D. N.J. 1986). 1046874v2 10

In Ohio, such identification is validly required on the face of the voter registration form, issued and approved by the Secretary of State in accordance with his authority to administer elections and R.C. 3503.14. Everyone must establish her identity in order to be eligible to vote. The majority of Ohioans provide such identification when they register. Requiring those individuals who have not yet established their identification to do so before they vote is consistent with state law and specifically complies with the requirements of HAVA. Such a requirement is a critical and fundamental step in the process aimed at preventing false registrations and fraud, and it is completely within a state s well-established authority to govern the electoral process. As the United States Supreme Court held, [t]he states have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised. Mason v. Missouri, 179 U.S. 328, 335 (1900). While the right of suffrage is established and guaranteed by the Constitution, it is subject to the imposition of nondiscriminatory state standards that do not contravene any restriction Congress has imposed. See United States v. Classic, 313 U.S. 299, 315 (1941) (overruled on other grounds). The Ohio General Assembly enacted such standards in Title 35 of the Ohio Revised Code, and the Secretary of State reiterated them in Directives 2004-07 and 2004-33. Both State and Federal Regulations Require Certain First-Time Voters to Show Identification at the Polls. Plaintiffs feebly attempt to argue that Ohio Secretary of State Directive 2004-07 conflicts with and is thus preempted by HAVA. However, even a cursory comparison of HAVA and Directive 2004-07 reveals that they are virtually identical. HAVA, 42 U.S.C. 15483, requires that a first-time voter who registers after January of 2003 and who did not provide verifiable identification at registration must provide either: 1) a current or valid photo identification; or 1046874v2 11

2) other documentary proof of their residency including current utility bills, bank statements, government checks, paychecks, or other government document that shows the name and address of the voter. See 42 U.S.C. 15483(b)(2). The requirements for voters to show valid proof of identification and residency within their voting jurisdiction applies equally to voters who have registered by mail and who attempt to vote in person or by mail-in ballot. See 42 U.S.C. 15483(b)(2)(A)(i and (ii) ). Directive 2004-07 contains similar provisions. A voter who registered to vote by mail after 01-01-2003, but who did not provide acceptable documentary proof of her identity, must provide that proof when voting for the first time. Thus, the Directive does not violate HAVA. Moreover, HAVA specifically allows states the discretion to require additional identification upon registration and does not regulate the states ability to determine a voter s eligibility to vote. HAVA established the floor, and not the ceiling, regarding identification requirements. HAVA permits states to require additional identification of voters or to require that identification be shown every time a voter casts a ballot. In fact, at least sixteen states have validly implemented identification standards that are more stringent than HAVA. 3 2. Directive 2004-33 Does Not Violate HAVA. Plaintiffs reiterate the same arguments and issues raised before this Court by the Ohio Democratic Party in the companion case filed previously. Plaintiffs again contend that a voter should be permitted to cast a ballot anywhere in the county, regardless of where he resides. And again, Plaintiffs here contend that HAVA mandates this stop-and-shop system of voting. Plaintiffs argument on this point is simply wrong. 3 See the state laws in Alabama, Alaska, Colorado, Connecticut, Delaware, Florida, Georgia, Kentucky, Louisiana, Missouri, Montana, North Dakota, South Carolina, South Dakota, Texas and Virginia. 1046874v2 12

As set forth more fully in Intervenors Motion to Dismiss and Memorandum Contra Plaintiffs Motion for Preliminary Injunction previously filed with this Court in the companion case, HAVA does not define the term "jurisdiction." Rather, HAVA specifies that states should make decisions on both voter eligibility and on whether or not a provisional vote should be counted "in accordance with State law." 42 U.S.C. 15482(a)(4). Ohio law provides that otherwise eligible voters are permitted to cast provisional ballots only within the precinct in which they reside and to have their provisional ballots counted within that precinct alone. Plaintiffs inaccurately represent Ohio law with respect to voter qualifications. Plaintiffs argue that Section 3503.01 of the Ohio Revised Code requires only that a person must be resident of the State for thirty days immediately preceding the election at which he or she offers to vote. The Ohio General Assembly has not provided for by law any length of residency in a county, township or ward for a citizen to be a qualified elector. Complaint at Paragraph 40. Plaintiffs disingenuously paraphrase O.R.C. 3503.01 and omit a critical element from the text of that statute. In its entirety, R.C. 3503.01 provides: 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 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 (Emphasis added). Despite Plaintiffs convenient omission of the specific reference to precinct in the Ohio Code, Ohio law is clear. Voters may only cast a valid ballot in the precincts in which they reside. Similarly, and in direct contravention to Plaintiffs claims, R.C. 3599.12 prohibits voting by otherwise eligible voters except in the precinct in which they reside. Ohio Revised Code 3599.12 provides: (A) No person shall do any of the following: 1046874v2 13

(1) Vote or attempt to vote in any primary, special, or general election in a precinct in which that person is not a legally qualified elector In fact, this Court clearly confirmed the validity of Ohio s precinct-based voting system earlier this year. In Bell v. Marinko, 235 F.Supp. 2d 772 (N.D. Ohio 2002), aff d, 367 F.3d 588 (6th Cir. 2004), this Court held that the determining factor in establishing voter eligibility is whether that voter has established residency in a particular precinct. As this Court very clearly and succinctly stated, [r]esidency within a precinct is a crucial qualification. Id. at 776. This Court concluded that registered voters who did not live in the precinct were not, in fact, properly registered to vote in that precinct. Id. This Court continued, stating: As the Ohio Supreme Court made that clear in In re Protest one simply cannot be an elector, much less a qualified elector entitled to vote, unless one resides in the precinct where he or she seeks to cast a ballot. And, if one never lived within a precinct, one is not, and cannot be, an eligible voter, even if listed on the Board's rolls as such. Bell, 235 F.Supp. 2d at 776. The Sixth Circuit affirmed this Court s conclusions in Bell, holding Ohio is free to take reasonable steps, as have other states, to see that all applicants for registration to vote actually fulfill the requirement of bona fide residence. (citations omitted). Bell v. Marinko, 367 F.3d 588, 592 (6th Cir. 2004). The Sixth Circuit affirmed that the voters who were at issue in Bell were not residents of Kelley's Island and were therefore ineligible to vote in the Kelley's Island precinct. Id. Thus, they were improperly registered in the first place, and as a result, the voting rolls were inaccurate. Id. HAVA requires states to establish a means to allow eligible voters to cast provisional ballots, and despite Plaintiffs' claims to the contrary, Directive 2004-33 meets HAVA' s requirements. Under HAVA, voter eligibility questions are left for state determination. Indeed, while HAVA imposes minimum requirements, it allows the states to develop their own laws and 1046874v2 14

procedures to fulfill the requirements. The purpose and goal of the minimum standards "is to improve our election system without issuing dictates that would rob states of the ability to craft their own solutions." See House of Representatives' Report 107-329 Part I, December 10, 2001, p.35 (from the Committee on House Administration). Ohio law establishes voting on the basis of precincts. This position is entirely in keeping with the framework of HAVA, which itself embraces or contemplates precinct voting as evidenced by the numerous references to in-precinct provisional voting in House of Representatives' Report 107-329 Part I, December 10, 2001, p.37 (from the Committee on House Administration). Thus, because there is no inconsistency between Ohio law and the requirements set forth in HAVA, Plaintiffs claimed violation will not succeed on the merits, and Plaintiffs Motion for Preliminary Injunction should be denied. 3. Neither Directive Violates The Fail Safe Voting Procedures In HAVA, But Both Further The Important Governmental Function Of Preserving The Integrity Of The Electoral Process. Plaintiffs erroneously argue that the Directives violate the fail-safe voting provision of HAVA. Plaintiffs contend that HAVA mandates that provisional ballots must be counted and that burdensome identification requirements and mere administrative procedures cannot invalidate the ballot of a voter who is eligible to vote under state law. (Plaintiffs Memorandum in Support of Motion for Preliminary Injunction at 16). However, Plaintiffs ignore the plain language of the fail-safe voting. HAVA does include a fail-safe voting provision to address the situation of a voter who has registered to vote by mail, but who cannot comply with the requirements stated above. See 42 U.S.C. 15483(b)(2)(B). This section of the Act provides: (B) Fail-Safe Voting 1046874v2 15

(i) In Person an individual who desires to vote in person, but who does not meet the requirements of subparagraph (A)(i), may cast a provisional ballot under section 302(a). (ii) By Mail an individual who desires to vote by mail, but who does not meet the requirements of subparagraph (A)(ii) may cast such a ballot by mail and the ballot shall be counted as a provisional ballot in accordance with section 302(a). See 42 U.S.C. 15843(b)(2)(B), emphasis added. Section 302(a) clearly provides that state law, not HAVA, controls. Therefore, the Directives do not violate HAVA nor are they preempted by the very provisions of federal law that provide for state law governance. The fail-safe voting provision of HAVA clearly states that a provisional ballot may be cast in accordance with Section 302(a). Section 302(a) of HAVA not only provides that the voter must be registered in the jurisdiction in which she desires to vote, but that state law will control the casting and counting of that provisional ballot. As such, Plaintiffs claims cannot succeed on their merits. It is clear that the preservation of the integrity of the electoral process is a legitimate and valid state goal. Dunn v. Blumstein, 405 U.S. 330, 335 (1972). In Dunn, the United States Supreme Court recognized that: [p]reservation of the "purity of the ballot box" is a formidablesounding state interest. The impurities feared, variously called "dual voting" and "colonization," all involve voting by nonresidents, either singly or in groups. The main concern is that nonresidents will temporarily invade the State or county, falsely swear that they are residents to become eligible to vote, and, by voting, allow a candidate to win by fraud. Surely the prevention of such fraud is a legitimate and compelling government goal. Dunn, 405 U.S. at 345. Ohio s requirement that identification be shown to prove a voter s identity and residency in the precinct in which she desires to vote not only falls well within the state-based administrative procedures permitted by HAVA, but also falls squarely within the rationale of the 1046874v2 16

United States Supreme Court in Dunn. Ohio s identification requirements are designed to combat the very attack on the purity of the ballot box envisioned and reasoned by the Court in Dunn. The legislative history of HAVA further supports the ability of states to design certain identification schemes to ensure the highest confidence and purity in the electoral process. Senator Christopher Dodd (D-Connecticut) stated in the October 8, 2002, edition of the New York Times that the identification requirements were not an onerous provision. Robert Pear, Civil Rights Groups Say Voter Bill Erects Hurdles Before Ballot Box, N.Y. TIMES, October 8, 2002. Congressman Steny H. Hoyer (D Maryland) (one of two chief sponsors of HAVA and the current Democratic Whip, the second-ranking leadership position among Democrats in the U.S. House of Representatives) stated that requiring better voter identification was [a] very small price to pay to ensure confidence of the American electorate. Jim Abrams, Primaries to Provide Test for New Election Reform Law, THE ASSOCIATED PRESS, January 23, 2004. Moreover, Senator Christopher Kit Bond (R-Missouri) directed an opinion request to the U.S. Department of Justice in February 2002 regarding HAVA s identification requirements under Title III and whether such requirements would violate 5 of the Voting Rights Act, 42 U.S.C. 1973(c). The Justice Department responded that in [its] view a change in the voting procedures requiring voters to provide documentation of identity does not unnecessarily have the purpose or effect of denying or abridging the right to vote on account of race or color. Far from automatically violating 5, identification requirements can be an efficient and effective means of combating voter fraud. In discussing the types of identification required and the process under which identification was used, the Justice Department concluded that [n]othing in the Department s preclearance activities or other experience implies that minority voters would be 1046874v2 17

less able than other voters to provide at least one of the documents accepted under this flexible [identification] requirement. It is clear from the aforementioned statements of the sponsors of HAVA and the United States Justice Department that extensive consideration was given to the purpose, scope, and potential effect of the identification requirements under HAVA. HAVA clearly provides that state law controls the requirements for first-time, mail-in registrants to show an acceptable documentary proof of identification at the precinct in which they desire to vote. See 42 U.S.C. 15482-15483. Recent irregularities in voter registration in Ohio are the exact kind of protection the identification requirements are designed to provide. In fact, the hypocrisy of the participation of Plaintiffs Project Vote and Association of Community Organizations for Reform Now ( ACORN ) in this action cannot be overlooked due to the less than distinguished recent history of these groups efforts in voter registration in Ohio. The September 26, 2004 edition of The Associated Press State & Local Wire highlighted that, in Cuyahoga County, 15 percent of the registration cards submitted by Project Vote and ACORN were incomplete. That percentage is the highest among groups registering new voters. In Franklin County, a grand jury was convened and an ACORN registration worker was indicted on two felony counts of submitting false election registration and submitting a false signature. Robert Vitale, Franklin County Grand Jury; Worker Accused of Falsifying Voter Form; THE COLUMBUS DISPATCH, September 8, 2004. The grand jury was convened after the Franklin County Board of Elections uncovered dozens of false voter registration forms, which included fake names and false information. Id. The Akron Beacon Journal has also reported on suspected fraudulent registration attempts after false registration cards were mailed to the Summit County Board of Elections. See 1046874v2 18

Lisa A. Abraham, Elections Chief Fears Scheme; Two Registration Cards in Summit are for Voters Already on Rolls; Other Counties Spot Problems, AKRON BEACON JOURNAL, August 20, 2004. In June 2004, two paid members of ACORN were fired for submitting fake names and forged signatures on official voter registration forms provided to the Franklin County Board of Elections. Robert Vitale, Two Fired Over Bogus Voter-Registration Forms, THE COLUMBUS DISPATCH, June 3, 2004. Hamilton County has now joined the ever-growing line of Ohio counties to be impacted by potential voter registration fraud. Hamilton County election officials are investigating 19 incidents of fraud after election officials noticed similar handwriting and fake addresses on registration forms mailed to the county board of elections by a representative of ACORN. Included in the news article was commentary that Lake and Summit counties are investigating more than 1,000 instances of voter registration fraud. Cindi Andrews, Alleged Fraudulent Voter Cards Scrutinized 19 in Hamilton Co. Suspected, CINCINNATI ENQUIRER, October 8, 2004. There is no question that fraudulent voter registration activities strike at the integrity of our electoral system and seek to infringe upon the purity of the ballot box in Ohio. Dunn v. Blumstein, 405 U.S. 330, 355 (1972). Plaintiffs like Project Vote and ACORN are, it would appear, at the epicenter of this fraudulent voter activity. Yet they now ask this Court to take away two of the most powerful tools that elections officials have to expose and remedy the fraud; precinct-based voting and minimal identification requirements. HAVA s identification requirements and Ohio s response, under the Ohio Revised Code and through Directives from the Secretary of State, are directly designed to prevent such fraudulent activities. Plaintiffs contention that otherwise eligible voters will suffer irreparable harm from providing identification is enormously misguided and was thoroughly debated by 1046874v2 19

Congress during HAVA s passage. For the aforementioned reasons Plaintiffs cannot demonstrate a clear likelihood of success on the merits and their Motion for Preliminary Injunction must be denied. V. CONCLUSION For the foregoing reasons, Intervenors respectfully request that this Court grant Intervenors' Motion to Dismiss and deny Plaintiffs' Motion for Preliminary Injunction. Respectfully Submitted, /s/ Truman A. Greenwood Truman A. Greenwood (0014256) Theodore M. Rowen (0014245) James P. Silk, Jr. (0062463) SPENGLER NATHANSON P.L.L. 608 Madison Avenue, Suite 1000 Toledo, Ohio 43604-1169 Phone 419-241-2201 Fax 419-241-8599 Attorneys for Intervenors 1046874v2 20

CERTIFICATE OF SERVICE I hereby certify that on October 11, 2004, a copy of the foregoing was filed electronically. Notice of this filing will be sent to all parties by operation of the Court s electronic filing system. Parties may access this filing through the Court s system. /s/ Truman A. Greenwood Truman A. Greenwood 1046874v2 21