Nos , IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Case: 12-4070 Document: 006111428230 Filed: 09/10/2012 Page: 1 (1 of 30) Nos. 12-4069, 12-4070 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1, et al., Plaintiffs-Appellees, v. JON HUSTED, et al., Defendants-Appellants. On Appeal from the United States District Court for the Southern District of Ohio Case No. 2:12-cv-00562 MOTION OF BIPARTISAN GROUP OF ELIGIBLE OHIO VOTERS TO INTERVENE AS APPELLANTS AND FOR EXPEDITED CONSIDERATION Patrick T. Lewis (0078314) BAKER & HOSTETLER LLP PNC Center, 1900 E. Ninth Street Cleveland, Ohio 44114-3485 Telephone: (216) 621-0200 Facsimile: (216) 696-0740 Email: PLewis@bakerlaw.com Counsel For Proposed Intervenors Citizens Reform Association of Cuyahoga County, Thomas Kelly, Emilie Illson, and Roberta Van Atta Elizabeth Petrela Papez Eric M. Goldstein WINSTON & STRAWN LLP 1700 K Street, N.W. Washington, DC 20006 Telephone: (202) 282-5678 Facsimile: (202) 282-5678 Email: epapez@winston.com Counsel For Proposed Intervenors Citizens Reform Association of Cuyahoga County, Thomas Kelly, and Emilie Illson September 10, 2012

Case: 12-4070 Document: 006111428230 Filed: 09/10/2012 Page: 2 (2 of 30) CORPORATE DISCLOSURE STATEMENTS Sixth Circuit Case Nos: 12-4069, 12-4070 Case Name: Service Employees Int l Union Local 1, et al., v. Jon Husted, et al. Pursuant to Fed. R. App. P. 26.1 and Sixth Circuit Rule 26.1, Proposed Intervenor Appellant Citizens Reform Association for Cuyahoga County makes the following disclosure: 1. Is said party a subsidiary or affiliate of a publicly owned corporation? No. 2. Is there a publicly-owned corporation, not a party to the appeal, that has a financial interest in the outcome of these cases? No. /s/ Elizabeth Petrela Papez Elizabeth Petrela Papez September 10, 2012 Date i

Case: 12-4070 Document: 006111428230 Filed: 09/10/2012 Page: 3 (3 of 30) INTRODUCTION AND SUMMARY OF GROUNDS FOR INTERVENTION The above-captioned appeals challenge the District Court s August 27, 2012, order preliminarily enjoining Ohio s Secretary of State from enforcing two sections of Ohio s provisional ballot law in the November election. The sections at issue require that voters cast provisional ballots in the precinct where they are eligible to vote, and that the signature on the provisional ballot envelope match the signature on record for the voter who seeks to cast the ballot. Until the District Court rewrote it, Ohio law compelled even-handed enforcement of these provisions by requiring State officials to disregard all provisional ballots that did not comply with the law. The District Court s August 27 order upends this system by using a flawed constitutional analysis and the extraordinary remedy of a preliminary injunction to direct the State to pick and choose which non-conforming ballots to count, and in some cases to count certain portions of miscast ballots and discount others. The order thus creates precisely the threat of disenfranchisement the challenged law was designed to prevent and the U.S. Constitution prohibits. Applicants for Intervention Citizens Reform Association for Cuyahoga County ( CRACC ), Thomas Kelly, Emilie Illson, and Roberta Van Atta (together, the Proposed Voter Intervenors ) are a bipartisan group of registered Ohio voters and an association of Ohio citizens and voters dedicated to open, honest, and efficient government in Ohio. The Proposed Voter Intervenors fundamental right 1

Case: 12-4070 Document: 006111428230 Filed: 09/10/2012 Page: 4 (4 of 30) to vote will be directly impacted by the outcome of these appeals. Specifically, the Proposed Voter Intervenors are, or represent, registered precinct voters who face disenfranchisement under two aspects of the injunction. First, their lawful votes are subject to dilution under the injunction provisions directing the State to count all or part of certain otherwise unlawful (miscast or improperly verified) provisional ballots. Second, the injunction subjects any provisional ballots they may cast to disqualification on unequal and undefined terms. It orders the State to count only a certain subset of miscast ballots (those purportedly miscast due to poll worker error) and directs the State to identify such ballots using a process that neither the injunction nor the State has defined. The case for intervention is compelling. The Supreme Court has recognized the right of all voters in a federal election to express their choice of a candidate and to have their expressions of choice given full value and effect, without being diluted or distorted by the casting of fraudulent ballots or the counting of ineligible votes. Anderson v. United States, 417 U.S. 211, 226 (1974) (quotation marks omitted). The District Court s order undeniably threatens this right, yet there is currently no local or individual voter party to this appeal. Plaintiffs tactical, eleventh-hour dismissal of the local county board of election defendants left only the State as an appellant, and caused the District Court to deny the 2

Case: 12-4070 Document: 006111428230 Filed: 09/10/2012 Page: 5 (5 of 30) individual Proposed Voter Intervenors motion for intervention below on grounds that were erroneous then, and regardless have no application in this Court. It is well settled that State interests are not necessarily adequate proxies for local or individual voter interests. See, e.g., Miller v. Blackwell, 348 F. Supp. 2d 916, 919 (S.D. Ohio 2004) (granting intervention as of right to voters who had interests divergent from those of the County Boards of Elections and Secretary of State Blackwell because the latter [sought] an efficient and accurate electoral process revolving around Ohio election laws whereas the voters were focused on challeng[ing] the eligibility of registered voters prior to the election in order to prevent possible dilution of their own votes ). That is particularly true here, where the party (the Secretary of State) who purported to represent voter interests below will not defend one of the challenged laws on appeal, and the intervening State party (the Attorney General) has identified an interest (defense of state enactments, ECF No. 68) distinct from that represented by the Proposed Voter Intervenors. These circumstances support intervention as of right. See Miller, 348 F. Supp. 2d at 919 n.3. They also support permissive intervention because the benefits of intervention far outweigh any burdens. This appeal is in its infancy, the Proposed Voter Intervenors will adhere to the expedited briefing schedule the Court announced on September 7, 2012, and granting intervention simply would allow the movants to address the merits of the injunction in the brief they will 3

Case: 12-4070 Document: 006111428230 Filed: 09/10/2012 Page: 6 (6 of 30) already file with the Court as appellants from the District Court s denial of intervention below. For all of these reasons, intervention is warranted. See Fed. R. Civ. P. 24. Further, given the impending November general election and this Court s accelerated briefing schedule, the Proposed Intervenors respectfully request expedited consideration of this Motion. 1 BACKGROUND Appellees Lawsuit. Plaintiffs-Appellees, several unions and a community organizing group, brought this suit to challenge the constitutionality of the Ohio provisional ballot law sections: (1) requiring each provisional voter to cast his ballot in the precinct where he is eligible to vote; and (2) demanding that the signature on each provisional ballot envelope match the signature on record for the casting voter. (Second Am. Compl. ( SAC ), ECF 63, 9, 78-117). Plaintiffs sought both a declaration of the sections unconstitutionality (on equal protection and substantive due process grounds) and an order enjoining the Secretary of State from enforcing the challenged provisions in the November election. Distilled to their essence, Plaintiffs claims are an attempt to relitigate this Court s decision approving Ohio s statutory requirement that provisional voters cast their ballots in the precinct in which they are qualified to vote. In Sandusky County Democratic Party v. Blackwell, 387 F.3d 565 (6th Cir. 2004), this Court 1 Counsel for Secretary of State Jon Husted does not oppose the relief sought in this motion. Counsel for Plaintiffs has indicated it will oppose such relief. 4

Case: 12-4070 Document: 006111428230 Filed: 09/10/2012 Page: 7 (7 of 30) upheld Ohio s precinct voting requirements as a proper and laudable method of implementing the provisional ballot safety net federal law requires. See id. at 569. To condemn Ohio s precinct voting requirements for provisional ballots despite this decision, Plaintiffs alleged that the requirements, however appropriate as a statutory matter, see id., were unconstitutional. (SAC, ECF No. 63; D. Ct. Op., ECF No. 67, at 1, 21-51 (Aug. 27, 2012).) Although Plaintiffs attacked the law on both substantive due process ( fundamental unfairness ) and equal protection grounds, their due process challenge is not supported (much less to the degree required for an injunction) by Supreme Court or Circuit precedent. Accordingly, Plaintiffs and the District Court based the challenged injunction here principally on equal protection grounds. (ECF No. 67, at 21-49.) Doing so required the District Court to distort both controlling law and the challenged statutory provisions. Because those provisions called for disqualification of all miscast or improperly verified provisional ballots, there was nothing unequal about them as enacted or interpreted by the State of Ohio. Compare Hunter v. Hamilton Cnty. Bd. of Elections, 850 F. Supp. 2d 795, 835-41 (S.D. Ohio 2012) (finding that the State s deliberate disparate treatment of similarly situated provisional ballots violated equal protection). The District Court was thus forced to rely upon the Ohio law as modified by a prior federal consent decree (the NEOCH consent decree upheld over the State s objections in the order below) to create the unequal 5

Case: 12-4070 Document: 006111428230 Filed: 09/10/2012 Page: 8 (8 of 30) treatment the Court then cited as the basis for invaliding the law under this Court s decision in Hunter. See 635 F.3d 219, 244 (6th Cir. 2011); (D. Ct. Op., ECF No. 67 at 48-49.) The result is a District Court order that rewrites the challenged law in order to invalidate it; that compels State officials to address the human errors that infect every election in the manner the District Court, rather than the Ohio legislature, thinks proper; and that requires State officials to administer the District Court s version of the Ohio law through an as-yet-undefined process at a time (after the results of regular voting are known) this Court has recognized as ripe for mischief. See Hunter, 635 F.3d at 235. Proposed Intervenors. The Proposed Voter Intervenors represent a diverse, bipartisan group of qualified, duly registered Ohio voters who intend to vote in the November 6, 2012, general election. (Declaration of Thomas Kelly, attached as Exhibit A; Declaration of Emilie Illson, attached as Exhibit B; Declaration of Roberta Van Atta, attached as Exhibit C). Mr. Kelly is a resident of Lakewood, Ohio, in Cuyahoga County, and is a registered Democratic voter. (Kelly Decl.) Mmes. Illson and Van Atta are residents of Rocky River, Ohio, in Cuyahoga County, are registered Republican voters who reside in a voting precinct that shares a polling place with a voting precinct in a different Congressional District. (Illson Decl.; Van Atta Decl.) CRACC was founded in June, 2009 by a diverse group of concerned citizens representing every city, town and village in the 6

Case: 12-4070 Document: 006111428230 Filed: 09/10/2012 Page: 9 (9 of 30) County. (CRACC Decl. attached as Exhibit D.) CRACC acts as an independent watchdog, without partisan interests or private agendas, to ensure the integrity, transparency and efficiency of Cuyahoga County Government. (Id. 6.) Protecting voting rights and promoting the enforcement of Ohio laws that safeguard the franchise and the fairness of elections conducted in Cuyahoga County are important aspects of CRACC s organizational purpose. (Id. 7.) Despite their differing partisan affiliations and, in CRACC s case, nonpartisan mandate, the Proposed Voter Intervenors share a well-recognized interest in challenging the District Court s injunction, which enjoins the operation of key sections of Ohio s provisional ballot laws and requires the State to count miscast or improperly verified ballots in selective and as-yet-undefined circumstances. The order thus threatens precisely the kind of dilution or disenfranchisement of the Proposed Voter Intervenors lawfully cast ballots that this Court and others have long held sufficient to warrant intervention. ARGUMENT I. PROPOSED INTERVENORS SATISFY THE REQUIREMENTS FOR INTERVENTION AS OF RIGHT UNDER FED. R. CIV. P. 24(A)(2). The Proposed Voter Intervenors satisfy the requirements for intervention as a matter of right under Fed. R. Civ. P. 24(a)(2) because they have an important interest in the subject of this action that may be impaired by the outcome of this appeal, and that will not be adequately represented by the State Appellants. Rule 7

Case: 12-4070 Document: 006111428230 Filed: 09/10/2012 Page: 10 (10 of 30) 24(a)(2) compels intervention where the applicant claims an interest in the action and is so situated that disposing of the action may as a practical matter impair or impede the movant s ability to protect its interest, unless existing parties adequately represent that interest. Fed. R. Civ. P. 24(a). This Court applies this Rule to intervention on appeal, and has interpreted it to require proposed intervenors to show that: (1) the application to intervene is timely; (2) the proposed intervenor has a substantial legal interest in the case ; (3) the proposed intervenor s ability to protect that legal interest in the absence of intervention would be impaired; and (4) the parties already before the Court would not adequately represent the proposed intervenor s interest. See, e.g., Mich. State AFL CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir. 1997). The Proposed Voter Intervenors satisfy all four requirements. Timeliness. The Proposed Voter Intervenors request for intervention is timely. This appeal is only two business days old, no briefs have been submitted, and the Proposed Voter Intervenors will adhere to the briefing schedule the Court announced on September 7 as both appellants from the District Court s intervention denial and as intervenor-appellants on the merits of the injunction. On this record, Plaintiffs-Appellees cannot claim undue prejudice on the grounds they advanced below, which do not apply on appeal as a factual matter, and cannot survive Circuit precedent holding that the denial of intervention below does not 8

Case: 12-4070 Document: 006111428230 Filed: 09/10/2012 Page: 11 (11 of 30) render appellate intervention untimely or prejudicial. See Carter v. Welles-Bowen Realty, Inc., 628 F.3d 790, 790 (6th Cir. 2010) (holding that the district court s denial of intervention did not render the movant s intervention on appeal untimely or unduly prejudicial); Blount-Hill v. Zelman, 636 F.3d 278, 287 (6th Cir. 2011) (holding that only undue delay and prejudice to the existing parties can justify denial of intervention) (emphasis added)); United States v. Tennessee, 260 F.3d 587, 592 (6th Cir. 2001) (holding that the determination of whether a motion to intervene is timely should be evaluated in the context of all relevant circumstances, including several of the circumstances present here). Substantial Legal Interest. The Proposed Voter Intervenors undeniably have a substantial legal interest in this case. They represent registered Ohio voters who intend to vote in the November election as part of Ohio s precinct voting system. (See Exhs. A-D.) 2 And the Supreme Court has recognized the right of all 2 An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members. Friends of the Earth, Inc. v. Laidlaw Envtl. Sevs. (TOC), Inc., 528 U.S. 167, 181 (2000). All of these requirements are satisfied here. The individual Proposed Voter Intervenors, including CRACC member Thomas Kelly, are present in this suit and have standing to proceed because the challenged injunctive relief poses an actual and imminent threat to their right to have their votes fully counted. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 61 (1992); Miller v. Blackwell, 348 F. Supp. 2d 916, 919 (S.D. Ohio 2004). Further, the record and Circuit law establish that the issues in this suit are germane to CRACC s organizational purpose because this Court has held that where, as here, (see CRACC Decl.), an 9

Case: 12-4070 Document: 006111428230 Filed: 09/10/2012 Page: 12 (12 of 30) voters in a federal election to express their choice of a candidate and to have their expressions of choice given full value and effect, without being diluted or distorted by the casting of fraudulent ballots or the counting of ineligible votes. Anderson v. United States, 417 U.S. 211, 226 (1974) (quotation marks omitted). Hence, courts in this Circuit routinely grant intervention in voting rights cases to voters and voting associations indistinguishable from the Proposed Voter Intervenors. See, e.g., Miller v. Blackwell, 348 F. Supp. 2d 916, 919 (S.D. Ohio 2004) (allowing registered voters who had filed pre-election challenges to the eligibility of certain voters to intervene as of right in a lawsuit regarding whether such challenges are constitutional); Sandusky, 387 F.3d at 570 n.2 (noting that voters were granted permissive intervention by the district court shortly before hearing on motion for preliminary injunction); League of Women Voters of Ohio v. Blackwell, 235 F.R.D. 388, 389-90 (N.D. Ohio 2005) (permitting individual voter to intervene in action challenging problems with electronic voting machines). Impairment of Interest. The Supreme Court has held that the right to an honest [count] is a right possessed by each voting elector, and to the extent that the importance of his vote is nullified, wholly or in part, he has been injured in the free organization deal[s] with voting rights and seek[s] to ensure voting choice, the organization has associational standing and grounds to intervene in voting rights cases. E.g., Citizens for Legislative Choice v. Miller, 144 F.3d 916, 920 (6th Cir. 1998). 10

Case: 12-4070 Document: 006111428230 Filed: 09/10/2012 Page: 13 (13 of 30) exercise of a right or privilege secured to him by the laws and Constitution of the United States. Anderson, 417 U.S. at 226 (quotation marks omitted). Accordingly, the Court has held that, [h]aving once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person s vote over that of another. Bush v. Gore, 531 U.S. 98, 104-05 (2000). Yet that is exactly what the District Court s order would require the State to do. Before the District Court rewrote them, Ohio s precinct and provisional ballot laws granted the right to vote on equal terms by requiring all votes to be cast in the correct precinct, and by requiring all miscast votes to be discounted. Id. The District Court s order now threatens to dilute the Proposed Voter Intervenors properly cast votes by requiring the State to count miscast ballots in certain circumstances and certain races, and to do so pursuant to an as-yet-undefined process that will be infected with human error and require subjective judgments after the results of regular voting are known. This process necessarily poses precisely the threat of vote dilution and disenfranchisement courts have held sufficient to justify intervention. See, e.g., Miller, 348 F. Supp. 2d at 918, 922; Sandusky, 387 F.3d at 571 n.2. Impairment of the Proposed Voter Intervenors anti-dilution and franchise rights is especially acute for Mmes. Illson and Van Atta, whose precincts share a polling place with precincts in a different Congressional District. Under current 11

Case: 12-4070 Document: 006111428230 Filed: 09/10/2012 Page: 14 (14 of 30) law, if a voter who is eligible in another precinct at Mmes. Illson or Van Atta s polling place casts a provisional ballot in Mmes. Illson or Van Atta s precinct instead, that voter s provisional ballot is discounted and Mmes. Illson and Van Atta s franchise is protected. Under the District Court s injunction, however, that unauthorized voter could cast a vote that would dilute Mmes. Illson or Van Atta s votes for Congress and other races. The injunction s limitation to so-called up ballot votes (D. Ct. Op., ECF 67 at 52), does not moot this risk for two reasons. First, because the movants interests must be evaluated ex ante and the tailoring requirement is still not final, movants anti-dilution interest in proper enforcement of the challenged ballot laws remains in issue. Second, because the District Court concedes that mistakes by election officials are inevitable, (id. at 42), the administration even of the tailored injunction will pose dilution concerns. Inadequate Representation. This requirement for intervention as of right is satisfied if the applicant shows that representation of his interest may be inadequate; and the burden of making that showing should be treated as minimal. Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972). The Proposed Voter Intervenors have plainly made such a showing. It is well settled that the government is not always an adequate proxy for individual voter interests, and courts thus routinely allow voters or voter associations to intervene alongside the State in voting cases. See Miller, 348 F. Supp. 2d at 919 n.3; Clark v. Putnam 12

Case: 12-4070 Document: 006111428230 Filed: 09/10/2012 Page: 15 (15 of 30) Cnty., 168 F.3d 458, 461-62 (11th Cir. 1999). The reason is that State interests are not necessarily synonymous with those of voters. See id. That is particularly true here. Plaintiffs initially attempted to bring this action against both the Secretary of State and against a defendant class consisting of all 352 members of Ohio s 88 county boards of elections. (Compl., ECF No. 1, 78-84). After a group of members of county boards of elections filed a motion to intervene (ECF No. 46) along with papers opposing certification of the defendant class and seeking to have Plaintiffs case dismissed Plaintiffs made a tactical decision to amend their complaint to name Secretary Husted as the sole defendant in this action. (ECF No. 63.) The Proposed Voter Intervenors believe that the issues raised in these appeals require a local perspective that the Secretary s state-wide approach would not adequately cover. But even assuming the Secretary adequately represented voter interests below, he has now abandoned the defense of one of the challenged laws on appeal. (ECF No. 68 at 2-3). And the intervening State party (the Attorney General) has declared an interest in the litigation (defense of State enactments) that law in this Circuit and elsewhere recognizes as distinct from the anti-dilution and enfranchisement interests that the Proposed Voter Intervenors represent here. See Miller, 348 F. Supp. 2d at 919 n.3; Clark, 168 F.3d at 461-62; Hunter, 635 F.3d at 244 ( both the state and the voting public have interests at stake in challenges to state provisional ballot laws 13

Case: 12-4070 Document: 006111428230 Filed: 09/10/2012 Page: 16 (16 of 30) States... have a strong interest in their ability to enforce state election law requirements.... [and] [m]embers of the public... have a strong interest in exercising the fundamental right to vote ) (quotation marks omitted). For all of these reasons, the Proposed Voter Intervenors satisfy the requirements for intervention as of right. II. PROPOSED INTERVENORS INDEPENDENTLY WARRANT PERMISSIVE INTERVENTION UNDER FED. R. CIV. P. 24(B). In the alternative, the Court should grant permissive intervention pursuant to Rule 24(b). The rule provides that, [o]n timely motion, the court may permit anyone to intervene who... has a claim or defense that shares with the main action a common question of law or fact. Fed. R. Civ. P. 24(b)(1)(B); Purnell v. Akron, 925 F.2d 941, 950 (6th Cir. 1991) (citing NAACP v. New York, 413 U.S. 345, 365-66 (1973)). The Proposed Voter Intervenors wish to challenge the District Court s constitutional analysis and grant of preliminary injunctive relief on grounds that share several common question[s] of law or fact with the State appeals. United States v. Michigan, 424 F.3d 438, 445 (6th Cir. 2005) (citing Mich. State AFL CIO v. Miller, 103 F.3d 1240, 1248 (6th Cir. 1997)). Specifically, the Proposed Voter Intervenors wish to challenge the District Court s order as failing to meet the legal and factual requirements for preliminary injunctive relief and for misapplying Supreme Court and Circuit law on equal protection and due process challenges to state election laws. (ECF 65-6; 65-6.) 14

Case: 12-4070 Document: 006111428230 Filed: 09/10/2012 Page: 17 (17 of 30) Permissive intervention is appropriate on these questions because, for the reasons set forth in Part I above, the Proposed Voter Intervenors will provide a perspective on the issues distinct from the State s, and because intervention at this stage of the appeal is both timely and would not unduly prejudice existing parties. Further, intervention will benefit the Court by allowing voters a direct voice on whether the District Court erred in holding on the basis of assumptions and statistical extrapolations that less than 2% of provisional ballots may be disqualified due to alleged poll-worker error that the State should count certain miscast or improperly verified ballots that Ohio law otherwise would disallow. Careful consideration of this issue is imperative, because the injunction relieves the persons who cast those ballots of any responsibility for complying with precinct laws and shifts the burden of disenfranchisement to other Ohio voters in a manner the Ohio legislature did not provide. See, e.g., Reynolds v. Sims, 377 U.S. 533, 555 (1964) (the fundamental right of suffrage can be denied by a debasement or dilution of the weight of a citizen s vote just as effectively as by wholly prohibiting the free exercise of the franchise ). For all of these reasons, permissive intervention is warranted. See Sandusky, 387 F.3d at 571 n.2 (noting that voters were granted permissive intervention by the district court shortly before hearing on motion for preliminary injunction); League of Women Voters of Ohio, 235 F.R.D. 15

Case: 12-4070 Document: 006111428230 Filed: 09/10/2012 Page: 18 (18 of 30) at 389-90 (permitting individual voter to intervene in action challenging problems with electronic voting machines). CONCLUSION AND PRAYER FOR RELIEF For the reasons herein the Proposed Voter Intervenors respectfully request that this Court allow them to intervene as of right pursuant to Federal Rule of Civil Procedure 24(a)(2) or, alternatively, permit them to intervene pursuant to Rule 24(b). Proposed Voter Intervenors will conform to the schedule the Court announced on September 7, 2012, for filing an appellate brief addressing the merits issues on which they seek intervention. September 10, 2012 Respectfully submitted, /s/ Elizabeth Petrela Papez Patrick T. Lewis (0078314) BAKER & HOSTETLER LLP PNC Center, 1900 E. Ninth Street Cleveland, Ohio 44114-3485 Telephone: (216) 621-0200 Facsimile: (216) 696-0740 Email: PLewis@bakerlaw.com Counsel For Proposed Intervenors Citizens Reform Association of Cuyahoga County, Thomas Kelly, Emilie Illson, and Roberta Van Atta Elizabeth Petrela Papez Eric M. Goldstein WINSTON & STRAWN LLP 1700 K Street, N.W. Washington, DC 20006 Telephone: (202) 282-5678 Facsimile: (202) 282-5100 Email: epapez@winston.com Counsel For Proposed Intervenors Citizens Reform Association of Cuyahoga County, Thomas Kelly, and Emilie Illson 16

Case: 12-4070 Document: 006111428230 Filed: 09/10/2012 Page: 19 (19 of 30) CERTIFICATE OF COMPLIANCE This is to certify that the foregoing motion complies with Federal Rule of Appellate Procedure 27(d)(2), which provides that a motion must not exceed 20 pages, exclusive of the corporate disclosure statement and accompanying documents authorized by Rule 27(a)(2)(B), unless the court permits or directs otherwise. Respectfully submitted, /s/ Elizabeth Petrela Papez Elizabeth Petrela Papez 17

Case: 12-4070 Document: 006111428230 Filed: 09/10/2012 Page: 20 (20 of 30) CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing Motion for Leave to Intervene and for Expedited Consideration was served on counsel for Plaintiffs-Appellees and Defendants-Appellants via filing through this Court s ECF system, this 10th day of September, 2012. /s/ Barbara Esquibel Barbara Esquibel 18

Case: 12-4070 Document: 006111428230 Filed: 09/10/2012 Page: 21 (21 of 30) INDEX OF ATTACHED EXHIBITS Exhibit No. A B C D Description Kelly Decl. Illson Decl. Van Atta Decl. CRACC Decl. 19

Case: 12-4070 Document: 006111428231 Filed: 09/10/2012 Page: 1 (22 of 30) EXHIBIT A

Case: 2:12-cv-00562-ALM-TPK Case: 12-4070 Document: #: 006111428231 65-3 Filed: 07/27/12 Filed: Page: 09/10/2012 1 of 1 PAGEID Page: #: 25788(23 of 30) IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1, et al., vs. Plaintiffs, JON HUSTED, in his Official Capacity as Secretary of State of Ohio, et al., Defendants. CASE NO. 2:12-cv-562 JUDGE ALGENON L. MARBLEY MAG. JUDGE TERENCE P. KEMP DECLARATION OF THOMAS KELLY IN SUPPORT OF BIPARTISAN VOTERS MOTION FOR PERMISSIVE INTERVENTION I, Thomas Kelly, declare as follows: 1. I verify I am of sound mind and I am eligible and registered to vote in State of Ohio elections. 2. I am a citizen of the United States and the State of Ohio, and over 21 years of age. 3. I am a resident of Cuyahoga County, Ohio. 4. I am affiliated with the Democratic Party. 5. I am qualified and duly registered to vote. 6. My voting location is at Winton Place on Lake Avenue in Lakewood, Ohio. I SOLEMNLY AFFIRM UNDER THE PENALTIES OF PERJURY AND UPON PERSONAL KNOWLEDGE THAT THE CONTENTS OF THE FOREGOING DECLARATION ARE TRUE. Date: 07/27/2012 /s/ Thomas Kelly Thomas Kelly

Case: 12-4070 Document: 006111428232 Filed: 09/10/2012 Page: 1 (24 of 30) EXHIBIT B

Case: 2:12-cv-00562-ALM-TPK Case: 12-4070 Document: #: 006111428232 65-2 Filed: 07/27/12 Filed: Page: 09/10/2012 1 of 1 PAGEID Page: #: 25787(25 of 30)

Case: 12-4070 Document: 006111428233 Filed: 09/10/2012 Page: 1 (26 of 30) EXHIBIT C

Case: 2:12-cv-00562-ALM-TPK Case: 12-4070 Document: #: 006111428233 65-1 Filed: 07/27/12 Filed: Page: 09/10/2012 1 of 1 PAGEID Page: #: 25786(27 of 30)

Case: 12-4070 Document: 006111428234 Filed: 09/10/2012 Page: 1 (28 of 30) EXHIBIT D

Case: 12-4070 Document: 006111428234 Filed: 09/10/2012 Page: 2 (29 of 30) Nos. 12-4069, 12-4070 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1, et al., Plaintiffs-Appellees, v. JON HUSTED, et al., Defendants-Appellants. On Appeal from the United States District Court for the Northern District of Ohio Case No. 2:12-cv-00562 DECLARATION OF PROPOSED INTERVENOR CITIZENS REFORM ASSOCIATION OF CUYAHOGA COUNTY Patrick T. Lewis (0078314) BAKER & HOSTETLER LLP PNC Center 1900 East Ninth Street, Suite 3200 Cleveland, Ohio 44114-3485 Telephone: (216) 621-0200 Facsimile: (216) 696-0740 Email: PLewis@bakerlaw.com September 10, 2012 Elizabeth Petrela Papez WINSTON & STRAWN LLP 1700 K Street, N.W. Washington, DC 20006 Telephone: (202) 282-5678 Facsimile: (202) 282-5678 E-mail: epapez@winston.com Counsel For Proposed Intervenors Citizens Reform Association of Cuyahoga County, Thomas Kelly, Emilie Illson, Roberta Van Atta, and Charles Pennell

Case: 12-4070 Document: 006111428234 Filed: 09/10/2012 Page: 3 (30 of 30) DECLARATION OF PROPOSED INTERVENOR CITIZENS REFORM ASSOCIATION OF CUYAHOGA COUNTY I, Thomas Kelly, declare as follows: 1. I verify I am of sound mind and I am eligible and registered to vote in State of Ohio elections. 2. I am a citizen of the United States and the State of Ohio, and over 21 years of age. 3. I currently serve as Executive Director for the Citizens Reform Association of Cuyahoga County ( CRACC ). 4. CRACC s business address is 1940 East Sixth Street, 7th Floor, Cleveland, Ohio 44114. 5. CRACC was founded in June, 2009, by a diverse group of concerned citizens representing every city, town and village in the County to promote restoration of good, honest, open and efficient government at every level in our community. 6. CRACC acts as an independent watchdog, without partisan interests or private agendas, to ensure the integrity, transparency and efficiency of Cuyahoga County Government. 7. Protecting voting rights and promoting the enforcement of Ohio laws that safeguard the franchise and the fairness of elections conducted in Cuyahoga County are important aspects of CRACC s organizational purpose. I SOLEMNLY AFFIRM UNDER THE PENALTIES OF PERJURY AND UPON PERSONAL KNOWLEDGE THAT THE CONTENTS OF THE FOREGOING DECLARATION ARE TRUE. Signature: Thomas Kelly Date: September 10, 2012