Tommy Ray Mays, II v. Frank LaRose, 951 F.3d 775

Background

Ohio law allows any registered voter to request an absentee ballot, but requires delivery of the request by noon three days before Election Day; an exception permits electors (or their minor children) unexpectedly hospitalized after the deadline to request until 3 p.m. on Election Day.
Plaintiffs Tommy Ray Mays II and Quinton Nelson Sr. were arrested the weekend before the November 2018 election, could not post bail, and sued the Ohio Secretary of State on behalf of themselves and a proposed class of similarly situated jailed electors.
Plaintiffs asserted (1) an Equal Protection claim: Ohio’s disparate treatment of hospital-confined vs. jail-confined electors violates the Fourteenth Amendment; and (2) a First Amendment as-applied challenge to the absentee-request deadline for jailed electors with no other way to vote.
The district court issued a TRO allowing the named plaintiffs to vote, later certified the class, and granted summary judgment to plaintiffs on the Equal Protection claim; the Secretary appealed.
The Sixth Circuit held Mays had standing, applied the Anderson–Burdick framework, found the burden on jailed electors to be intermediate, and concluded the State’s interests in orderly election administration and related burdens justified the differential treatment; it reversed the district court’s judgment for plaintiffs, reversed class certification, and rejected the First Amendment challenge.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standing (causation)	Mays and Nelson were prevented from voting because Ohio’s absentee-request deadline plus their confinement caused the injury.	The arresting authority, not the Secretary, caused the inability to vote.	Mays has standing (futility of attempting to request absentee after deadline); Nelson’s standing unnecessary to resolve because at least one plaintiff had standing.
Equal Protection — disparate treatment (hospital vs jail)	Ohio’s exception for unexpectedly hospitalized electors but not unexpectedly jailed electors discriminates and imposes an unconstitutional burden on jailed voters.	The State’s interests in orderly administration, fraud prevention, public confidence, and limited local resources justify the differential treatment.	Under Anderson–Burdick the burden on jailed electors was intermediate; the State’s administrative and logistical justifications outweigh that burden; summary judgment for Secretary.
First Amendment — as-applied challenge to absentee-request deadline	The general noon–three-days-before deadline infringes the right to vote for jailed electors with no alternative.	The deadline is a generally applicable, nondiscriminatory restriction imposing only a minimal burden justified by the State’s regulatory interests.	The deadline is constitutional under Anderson–Burdick/rational-basis: minimal burden and justified by State interests; Secretary entitled to judgment.
Class certification under Rule 23	A class of all electors arrested after county close of business Friday who remain jailed through Election Day have common legal claims and typicality.	Class members arrested at different times face materially different claims (e.g., pre- vs post-noon Saturday cutoff), defeating commonality and typicality.	Certification abused discretion: named plaintiffs are not typical of entire class (claims differ depending on arrest time); class reversed.

Key Cases Cited

Anderson v. Celebrezze, 460 U.S. 780 (establishes the balancing test for election regulations)
Burdick v. Takushi, 504 U.S. 428 (refines Anderson balancing and evaluates burdens on voting)
O’Brien v. Skinner, 414 U.S. 524 (examines absentee eligibility for jail-confined voters)
Rosario v. Rockefeller, 410 U.S. 752 (assesses burdens considering all voting opportunities provided by the State)
McDonald v. Bd. of Election Comm’rs of Chicago, 394 U.S. 802 (states that once franchise is granted it must not be administered discriminatorily)
Obama for America v. Husted, 697 F.3d 423 (6th Cir. 2012) (applies Anderson–Burdick to Ohio early-voting changes and analyzes state justification evidence)
Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (recognizes State interest in orderly administration of elections when evaluating voting rules)
Norman v. Reed, 502 U.S. 279 (addresses ballot-access rules under Anderson–Burdick)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (sets Article III standing requirements)
Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (explains prudential considerations when a co-plaintiff has standing)