*1
rights
have taken the same ac- First Amendment
would
is a violation of
[he]
1983.”).
protected
absence of the
activi-
tion
Motivation
be difficult to
ty.”
Reform,
fact,
For Bio-Ethical
Inc. v.
Ctr.
after the
ascertain
but once the fact-
(6th
807,
City
Springboro, 477 F.3d
finder determines that protected speech
Cir.2007) (internal
marks omit-
quotation
arrest,
illegality
motivated the
ted).
readily
arrest
becomes
“apparent.”
Anderson,
Schutzman him, angry argues that the III. CONCLUSION evidence is silent about Schutzman’s own AFFIRM We the district court’s denial plaintiff’s If a can motives. motives cre qualified immunity to Schutzman on ate an inference about the defendant’s Kennedy’s Fourth Amendment claim for motives, then, Schutzman, says plaintiffs wrongful arrest and on his First Amend- qualified could eliminate the defense of retaliatory ment claim for arrest. RE-We immunity simply by threatening a lawsuit MAND proceedings. for further being before arrested. We need not ad argument dress Schutzman’s because we
disagree interpretation with Schutzman’s Kennedy’s deposition
of the record. re anger. than own
veals more his Schutz running
man “came back in” to the face,” building, “got [Kennedy’s] HUNTER, Plaintiff-Appellee, Tracie Kennedy immediately arrested after Ken Northeast Ohio Coalition for the Home a “fat nedy called Schutzman slob.” R. less; Party, Ohio Democratic Interve (Kennedy Dep. At nors-Appellees, summary-judgment stage, this evidence suffices to show that the content of Ken nedy’s speech may have a motivat been HAMILTON COUNTY BOARD OF
ing factor for Schutzman to arrest Ken ELECTIONS; Faux; Timothy Caleb nedy. Burke; Triantafilou; M. Alex Charles Gerhardt, III, (Chip) Defendants,
Finally, Kennedy’s right to be free
retaliatory
insulting
from
after
arrest
County
Elections,
Hamilton
Board of
clearly
officer was
established.
See
Defendant-Appellant
(11-3060),
Greene,
(“[The
against exercising an individual his or her *3 Parker, Joseph
ARGUED: R. Taft Stet- LLP, Cincinnati, & Ohio, tinius Hollister Appellants. Branch, for L. Jennifer Ger- LPA, Cincinnati, hardstein & Branch Co. Ohio, Gentry, Caroline H. Porter Wright Arthur, Morris & LLP, Dayton, Ohio, for Appellees. Stevenson, David Todd Hamil- County Office, ton Cincinnati, Prosecutor’s Ohio, County for Hamilton Board of Elec- Parker, tions. ON BRIEF: Joseph R. W. Dornette, Nalbandian, Stuart John B. Taft LLP, Cincinnati, Stettinius & Hollister Ohio, Harper, James W. Hamilton County Office, Cincinnati, Ohio, Prosecutor’s for Appellants. Branch, Jennifer L. Alphonse Gerhardstein, A. Gerhardstein & Branch LPA, Cincinnati, Ohio, Co. Caroline H. Gentry, Wright Arthur, Porter Morris & LLP, Dayton, Ohio, Chandra, Subodh Firm, LLC, Cleveland, Ohio, Chandra Law Donald McTigue, McGinnis, J. A. Mark McTigue LLC, McGinnis, Columbus, & Ohio, Burke, Timothy Manley M. Burke LPA, Cincinnati, Ohio, Appellees. Chin, Richard N. Coglianese, Pearl M. Of- Attorney General, fice of the Ohio Colum- bus, Ohio, for Amicus Curiae. MOORE, COLE, Before: ROGERS, Judges. Circuit MOORE, J., opinion delivered the court, J., COLE, joined. in which ROGERS, 247-49), (pp. J. delivered a separate opinion concurring in the judgment. (3) cree; defendant-appellant
OPINION appeal of the court’s Janu- Board’s MOORE, Circuit KAREN NELSON explained ary For reasons 12 order. Judge. below, AFFIRM the district court’s from the November This case arises in part 22 order AFFIRM November County Juve- for Hamilton 2010 election in part the district court’s VACATE Tra- candidates Judge between nile Court January 12 order. Plaintiff- Hunter and Williams. de John claim brought a under Hunter appellee 1. BACKGROUND & PROCEDURAL due alleged violations of 1983 for U.S.C. *4 HISTORY equal protection and defendant process of Elections County Board Hamilton lengthy comes us with a This case to (“Board”) to its review helpful with an history. It is to start Hunter al- provisional of ballots. counting in explanation provisional voting Ohio. created practice that the Board has a leges law, not certain voters able to Under Ohio provisional invalid investigating whether regular may cast ballot in an election a poll- as a result of were miscast ballots provisional cast a ballot. Ohio Rev.Code were, and, they counting if worker error 3505.181(A). example, § For individ- Ann. alleges that She the ballots. the uals names are not on official whose approxi- to apply practice to this refused eligible polling place, voters for the list ballots mis- mately provisional 8491 other ballot, an requested who absentee or precinct. the After the wrong cast in by the signature pre- whose was deemed of provisional count completed Board its name on cinct not to match the the official provisional the total ballots added registration provisional forms may be vot- total, election-day Hunter 23 votes the ballot, provisional ers. To cast a the Id. behind Williams. stating voter must execute an affirmation registered is to vote in following consolidated he or she the Before us (1) jurisdiction in eligible and is to vote intervenor-appellant appeals: 3505.181(B)(2); §§ of the district court’s election. Id. 3505.182. appeal Williams’s then must granting pre- order Board determine whether November injunction ordering provisional the Board “to ballot valid and therefore liminary required provisional ballots cast to be counted. Relevant this investigate whether dispute, if the determines in correct location but polling “[t]he cast because of individual named on affirmation improperly (2) error”; to cast in the appeal eligible pre- is not a ballot poll worker Williams’s January 2011 cinct for the in which indi- of the district court’s or election ballot,” order, then provisional the Board to count vidual cast the which ordered envelope opened shall be and the disputed 165 of the 849 ballots and to ballot not certain ballots ballot shall be counted. investigate and count other 3505.183(B)(4)(a)(ii).2 provision- § subject de- “Once existing federal consent (Directive n.l). at 1 "approximately” cinct.” R.38-1 2011-04 1. We use the term because simplicity, we refer to the number of For disputed the number of opinion disputed throughout this has been referred to as 849 some instances Secretary The Ohio others. that, the course the dis- State indicated 2. See also Rev.Code Ohio Ann. “one pute, it was voter determined 3505.183(B)(3)(b) (requiring, §§ con- wrong pre- two verse, that the Board individual find envelope, jurisdiction al from its separated polling place ballot is commingled protect ballots are then which the appears eligi- individual to be impossible and it secrecy, vote, voter becomes explain ble to that the individual track, any the votes voter.” may cast a ballot at the cur- Brunner, 120 Skaggs State ex rel. rent location but the ballot will be (2008). N.E.2d St.3d if wrong pre- counted it is cast cinct, provide the telephone number Also is the of a multi- important concept board elections in case the ple-precinct location. For financial polling individual questions. has additional reasons, and other administrative Hamil- has County ton decided to some 3505.181(C)(1).3 If Ohio Rev.Code Ann. buildings polling serve as the location for voter to go refuses correct nearby precincts. several R.38-8 Ex. 1 precinct, office, or to the Board’s the voter (Burke locations, letter In such ballot, still cast a provisional but the “precinct”— voters go must correct opened ballot cannot be or counted if the i.e., table—within location cast a properly voter is not registered *5 finding valid ballot. To assist in voters the precinct eligible or not to vote in the elec table, assigns an County correct extra tion, or if eligibility the voter’s to vote in poll “precinct a at guide” worker as sixteen precinct in the and election cannot be polling of its seventeen locations with four established from the Board’s records. Id. or precincts. polling more The 152 loca- 3505.181(C)(2). § precincts tions that two or three do In intervenor-appellee the North- poll not have an to serve extra worker as a east Ohio Coalition for precinct guide. Applicable to all Homeless locations (“NEOCH”) Secretary sued the Ohio particularly but relevant to locations alleging State a number of multiple requires election-related precincts, Ohio law challenges claims ways including workers to voters in if to Ohio’svoter- assist certain Brunner, an regarding issue the voter’s cor- laws. NEOCH v. arises identification (S.D.Ohio). No. precinct: rect C2-06-896 suit This re- in then-Secretary sulted NEOCH and If an individual declares that individ- State Jennifer Brunner entering into a jurisdiction ual is to vote in eligible which, decree, consent among provi- other jurisdiction other than the in which the sions, that “may mandated the Board not vote, if, upon individual desires to or reject voter, ballot aby cast precinct voting review of location last four only digits who uses his or guide using the residential street ad- security her individual, social number as provided by dress an identifica- ballot, if tion” certain polling place election official at the deficiencies including being wrong pre- which individual cast “in desires vote de- cinct, place,” that the is eligi- polling termines individual the correct jurisdiction, ble in that poll-worker to vote the elec- were the result of error. NEOCH, (S.D.Ohio shall tion official direct the individual to Apr. No. C2-06-896 eligible precinct cast a precinct person "to ballot in the in a is not a elector.”). for the election in which the individual cast legally qualified open envelope ballot” to ballot); 3503.01(A) ("Every and count the cit- defined "Jurisdiction” is as "the pre- ... vote at izen all elections in the person legally qualified which a ais elector.” resides.”); cinct in which citizen 3505.181(E)(1). Ohio Rev.Code Ann. ("No 3599.12(A)(1) person ... shall vote ... decree). 2010) (consent poll- “falls within The consent ballots demonstrated effect, Secretary of error under decree, exception carved out worker State regarding ballots otherwise Brunner’s directive issue.” counting provisional deficiency if the The Board then reviewed Ohio law at 32. under invalid error —albeit a nar- that were cast poll-worker group of due to locations day polling those ballots voters on election limited to row one wrong precinct. four in the voter who uses last but were cast by a Security reveals its at- of his or her Social number record digits to be understood law torney as identification. in the were ballots cast entered, decree was After the consent unless, and should not be counted invalid 2010- Brunner issued Directive Secretary decree, poll- consent there was under the Directive 2010-74 assist used error and the voter the last worker provi- processing counting Security four of his or her Social digits in accordance with the de- sional Id. at as identification. 34-60. number VII of Directive 2010-74 cree. Section their expressed Two Board members frus- examples error provides that some of the 849 ballots tration were consent contemplated under the decree went instances which the voter steps for the Board to take when well as voted polling correct location but in the error, in- is evidence of there Id. at 35-39. But be- wrong precinct.5 “a finds cluding when board elections implicated by these ballots cause multiple provisional voted (the consent NEOCH decree voters did polling wrong pre- location but correct *6 digits the last four of their use Social (Directive 11-12). R.l-2 2010-74 at cinct.” identification), Security numbers the as after elec- Shortly the November 2010 unanimously disqualify to Board voted tion, meetings Board on Novem- the held Id. at these ballots. 37-40. 19, 2010, to and November ber category The next of ballots that the and vote the ballots process group of 27 Board considered was The Board unani- that had been cast. first that at in were cast the Board’s office mously accept to and count over voted day to election prior downtown Cincinnati provisional ballots with little discus- wrong precinct. recorded (Nov. were in the Meeting R.l-3 2010 Board sion. 23-29). The that these Board concluded at next unan- Tr. The Board voted error” pollworker resulted from “clear imously accept count over hun- to six unanimously to the ballot to voted “remake poll the dred ballots worker precinct” the and to count the 27 proper contradictory regard- checked information During Id. at 40-45. discus- ballots. ing required the voter was ballots, sion of these the Board ob- additional information to the provide voting process at that at its Board. 29-33. The Board’s counsel served had but to thought that “the voter no choice walk group indicated he office essentially yet just find vote won’t be counted. I that to 4. Directive 2010-73 summarizes (Nov. decree. the terms consent problematic.” be R.l-3 Meeting Xr. at Board member Board member "I 5. Board Faux stated: continue ought to be frustrated "[W]e Burke stated: all problem fact that now have a with the we are got right to the when several hundred voters disqualify people who about to the votes and for one or another were at room reason actually go got polish] took the time to to the wrong table.” Id. at 38-39. right building, yet somehow their “obvious,” just person.” Id. at 42-44. The up one but with to the other why Board mentioned reasons voter locations, polling 849 ballots cast at there given at the Board’s office have been must “objective must be poll- evidence that the wrong ballot: “for whatever reason they worker did not do supposed what up have looked [the worker] to do.” Id. at Although 47-48. the Board at wrong precinct they looked the [vot- recognized also some the 849 bal- and a ad- er’s] current address former question lots in were cast at the dress,” “pulled or ballot.” Id. but the wrong precinct, location at ques- 43. one Board member When simply noted that those ballots were not tioned how the ballot be for would remade separated out. 49. Id. at The Board then precinct given the correct that all the races continued its review of bal- may in the two precincts, be same lots without allowing further discussion if was told that the voter member the 849 ballots cast question had voted in a she race he or wrong precinct. Id. When Board have, particu- should not the vote review, its concluded bal- lar simply race would not be counted. Id. lots that had Board voted to count at attorney 41. Board’s also his noted regular added the count of the agreement with the Board’s decision cast on day. election After this count the votes cast ballots, total count of Williams had 23- the Board’s office. Id. margin vote over Hunter. After the unanimous vote count these ballots, counsel for Hunter who attend- On November Hunter filed a meeting question ed the raised a complaint the United States District the 27 why Board ballots cast at Ohio, Court for the Southern District of Board’s office were counted but the 849 seeking declaratory injunctive relief polling ballots from the not: locations were under 42 against U.S.C. your just “In light ruling now on the four and its members their official ca- pollworker people errors for the that voted *7 pacities for asserted violations the Board, logic here at the wouldn’t same Equal Protection and Clause Due Process hold prior true for the batch of the 849 R.l (Compl.). alleges Clause. Hunter people? they If vote cast their because County Hamilton “[t]he Board pollworker error in wrong precinct, the practice Elections has a created of investi- they shouldn’t their also have votes count- if gating poll there is worker and if error ed?” Id. at 46. Hunter’s counsel asked poll found, accepting worker error is possible separate whether it was to out ¶ provisional support, ballots.” Id. 22. In those ballots of the at 849 that were cast (1) alleges she that the Board counted right wrong precinct the location but and provisional ballots at cast the Board’s of- to decide was whether there ¶ in wrong precinct,6 fice but the id. error with to ballots. at those Id. (Nov. 16, (citing Meeting R.l-3 2010 Board 46-47. attorney The Board and its re- 40-46)); (2) provisional Tr. at sponded that for the ballots those ballots cast at office, the poll-worker Board’s error was with contradictory information regarding 16, 40). (Nov. 6. The provi- Meeting record reveals that there were 27 2010 Board Tr. at For sional cast at ballots the Board's office but simplicity, we continue use the number of wrong precinct by counted the at Board 27 to refer to the cast at the Board's ballots meeting its November num- —ballots office. through bered P-10222 P-10248. R.l-3 identification,7 right to vote is a severe burden on that her provided voter whether ¶ (Nov. 16, ¶27 right R.l-3 2010 Board to vote.” Id. 39. (citing voter’s id. (3) 29-33)); provisional Tr. at Meeting time, a At the same Hunter filed motion signed but the voter had ballots that restraining order temporary pre- for a and the voter determined Board (Mot. injunction. R.2 liminary TRO to vote required been a not have should Inj.). and Prelim. NEOCH the Ohio ¶ ballot,8 (citing id. R.l-3 provisional Hunter, Party (together Democratic (Nov. at 71- Meeting Tr. “Plaintiffs”) plaintiffs, alleg- intervened as (4) 72)); provisional ballots “several” disputed ing that some the 849 were from the ballots themselves subject to be appeared NEOCH envelopes but the their asserting consent decree and inter- ¶ 29. Hunt- precinct, id. from the correct est, decree, parties as to the consent in its that the Board failed conduct alleges er enforcement. intervened as a de- Williams instances, investigation in other similar Board, (together fendant with the “Defen- reject- provisional ballots including the 849 dants”). following day, The November being wrong precinct, ed for an emergency the district court held failed to count and therefore injunc- hearing preliminary issued ballots miscast result directing “immediately tion the Board to ¶¶ 30, error. 34. into begin investigation poll whether alleges that the Board violated Hunter the rejection worker error contributed to “by refusing, Equal Protection Clause now in of the 849 issue basis, investigate reasonable
without and include the recount of race for worker error caused poll some Hamilton County Court Judge Juvenile right polling place at the voters to vote but any provisional improperly cast for table investi- while otherwise poll worker reasons attributable error.” similarly gating situated circumstances (Nov. R.13 2010 order a voter poll where worker error caused request court Hunter’s denied wrong precinct,” “by arbi- vote stay the Board’s certification the elec- trarily allowing some voters Board, therefore, tion results. Id. The right to vote when the error certified results of the election on No- worker, caused poll ballot was vember denying other voters appealed the district court’s or- Williams in the ballot vote when error ¶ stay der and moved for a this court. A Id. 38. caused worker.” She *8 single judge granted tempo- of this court “system that alleges also Board’s 24, 2010, rary stay on November but a is so unfair rejecting provisional ballots panel fundamentally three-judge or of this court denied the that it denies burdens 1, stay 2010, fundamental to vote” motion to on December Ohioan[s'] “[djenying provisional stay. his the temporary panel that voter or dissolved The 16, (Nov. 7. reveals the correct P-10374. 2010 Meet- The record that number R.l-3 Board catego- 71). approved ballots in this ing Tr. at record also that reveals through ry P-8257 is 686—ballots numbered approved counting the Board two additional (Nov. 16, Meeting P-8942. R.l-3 2010 Board it miscast ballots because was de- 33). Tr. at poll termined that worker should required the voter to cast a ballot. 8. The record reveals the correct that number Id. at 57-61. catego- approved in this through ry is 11—ballots numbered P-10364
227 (Directive that stated that it could not “conclude the were cast. R.38-6 2010-87 at abused its de district court discretion 2). disparate termining alleged] [the began The Board thus investigating the ‘likely enough it that [the treatment made disputed subpoenaed over four- weighs in factor fa likelihood-of-success] (E-mail poll hundred workers. R.38-7 preliminary injunc
vor granting 2). correspondence meetings at At Board ” 10-4481, 1, No. Dec. 2010 tion.’ Case held on 16 and December Board (second in original) Order at 3 alteration seventy interviewed poll over workers. (quoting States Ass’n United Student (Dec. 16, Tr.); R.38-2 2010 Meeting Board Land, (6th Found. F.3d (Dee. 17, Tr.). R.38-3 Meeting Board Cir.2008)). it Because was “unconvinced However, on December con- harm irreparable Williams faces Secretary tacted the of State and indicated a stay” the absence of and “the balance of that it still needed to issue approximately remaining persuade factors [did] subpoenas poll workers. R.38-7 grant stay,” for a [this the motion court] (E-mail 2). correspondence at The Board panel ordered the case “shall thus Secretary permit asked that the it to stop proceed in the normal Id. at 2-3. course.” interviewing poll workers and instead subsequently petition Williams filed a for questionnaires to send workers. rehearing, panel which was denied on De Secretary Id. The agreed. at 1. Af- argu cember oral 2010. We scheduled questionnaires sending ter out re- 10-4481, No. appeal, ment on Williams’s workers, maining poll the Board received for March 2011. questionnaires. 830 completed back R.38- however, happened, Much since has (Dec. 2010 Board Tr. at Meeting original After appeal. the district court’s At its 28 meeting, December the Board order, Secretary November Brunner rejected approximately 500 of dis- provided “additional guidance puted ballots. Id. at 135. The Board regard investigation with [Board] unanimously voted to count 7 ballots, ballots that 849 provisional [by as ordered (Directive the Board determined from investiga- its R.38-10 2010- court].” tion, (Directive 809); including workers, interviewing poll see R.38-6 2010-8710 also ). were miscast account on Secretary Brunner also issued Di- error, 68-73, 2010-79, id. at and 9 provides “objective rective which criteria determined to have been cast in the cor- determining poll for worker error.” (Directive 2010-79). particular, erroneously R.44-3 rect In included Secretary rejected Brunner Board staff “wrong-pre- ordered the Board to question every poll ballots, pre- worker from the cinct” id. 52-68. The cincts in disputed ballots Board also voted whether to count 269 wrong precinct.” Directive 2010-80 included the criteria that workers to the R.38-10 apply (Directive 2-3). should to determine whether 2010-80 steps error five occurred and *9 investigating the Board to follow when the 10. After the Board was "unable to reach con- issue, including ballots at specific steps sensus on all the taken to be to questioning poll examining workers as aswell complete investigation the [the ordered envelopes. and ballot books The di- court],” district Brunner issued Directive rective further stated that board "the provided which detailed in- more also interview choose to the individual voters eight steps, structions in as well as deadlines who cast these for evi- ballots (Directive 2010-87). completion. for R.38-6 by poll dence that the voter was directed stating is polling “[i]t in the and denied the motion that correct were cast precinct, province Supreme within the of the Ohio wrong but the
location but Secretary of to Id. at 88-89. Under Court determine 2-2 tie. vote was L. Brunner’s State Jennifer directives Secretary of State casts the law, Ohio the comply governing Elec- state law election the of with vote when Board tie-breaking, (Dist. Deny- R.32 Ct. procedures.” Order tions deadlocked. is Ann. Ohio Rev.Code Enjoin Proceed- 3501.11(X). ing Mot. to State-Court 1). However, the district did ings court 7, 2011, Secretary Brunner January On Supreme if “the indicate that Ohio Court the with to a directive issued feder- ruling [the issues that Plaintiffs 2011-03). (Directive In R.38-9 ballots. believe interferes with this al] action directive, rejected counting Brunner the injunction] or that [preliminary Court’s but, analysis on an based all to Plaintiffs believe otherwise contra Faux, by Board member Caleb conducted law, Plaintiffs may federal constitutional or (Burke 3-4), direct- letter at Ex. R.38-8 injunctive file a for new motion relief.” approximately to 56% ed Board count the 1-2. wrong pre- of ballots cast the the 269 The Ohio a deci- Supreme Court issued on polling correct location based cinct but 7, 2011, on January granting sion the writ She the the address. directed voter’s the Specifically, of mandamus. state su- of whose to count the ballots voters (1) preme court issued an order the side of a “on addresses precinct the boundary street of which secretary to the of state to re- compel (ap- cast a the voter should have ballot” scind Directives 2010-80 and 2010-87 269); (2) the proximately 31% of “outside compel and to the of board elections range boundary of of a street the address pursuant its decisions made rescind in which voter should precinct those directives and to instead review have cast a ballot” (approximately 15% [849] provisional ballots that are (3) 269); pass “on subject streets [the court’s] federal precinct in which the voter through the subject order are not consent voted, did not fall within address[ ] decree in Ohio Coalition Northeast range Homeless, the correct address exactly the same should voter procedures scrutiny applied any 269). (approximately 10% of the ballot” during re- board’s leading up view of them its decision meantime, 20, 2010, In on December assuming November without Painter, and John a Hamilton Williams W. ab- error occurred elector, County petitioned the Ohio Su- sence con- specific evidence preme for “a writ of Court mandamus trary. the misdirected correcting post-election Brunner, State ex rel. Painter v. 128 Ohio and post-election-certification instructions (2011). St.3d 941 N.E.2d Secretary stopping State in its supreme state court observed that process that is based on those instruc- view, ¶ (Painter In Compl. tions.” R.29-1 best,
response, any mo- claim emergency equal-protection [a]t Plaintiffs filed merely required tion in the federal district court on Decem- would have the same enjoin pro- ber the state-court examination the board conducted ceedings. concluding[ ]incorreetly ] The federal district court held a under [ — *10 27, telephonic cast in hearing on law—that December wrong precinct at board of elec- ing) [849] ballots cast in during early-voting period are, tions according to Ohio though they be counted even statutes, should shall invalid and not be count- wrong precinct ed, were cast due to error. That review lim-
poll-worker was “to certify and results election” books, poll ited to an examination accordingly. Id. records, help-line provisional-ballot and A flurry of place action took in the fol- envelopes and from emanated the uncon- lowing days. January On Plain- troverted evidence that these ballots tiffs filed an emergency motion in the wrong precinct were cast due to federal district court to enforce pre- poll-worker error. liminary injunction enjoin (brackets at reflect movement of complying Secretary from with Husted’s dash). (Mot.). directive. R.38 Plaintiffs alleged on January Secretary Also (1) investigation that the Board’s revealed Brunner issued two directives 7 ballots that the Board unanimously first, 2011-02, Board. The Directive re- agreed to count they because were defi- scinded Directives 2010-80 and 2010-87 error, due poll-worker 3-5; cient id. at accordance decision. Painter (2) 9 ballots that the Board unanimously second, 2011-03, Directive related to the agreed to count they because were defi- Board’s tie vote on the votes cast in due staff, cient to error the Board’s polling correct wrong pre- location but (3) 5; id. approximately 149 bal- cinct, (Di- explained above. R.38-9 lots that right were cast in the location 2011-03). rective Brunner directed the wrong precinct but due to er- that, Board to count certain ballots based ror relating addresses,11 to the voters’ id. addresses, voter right on were cast in the at 6-7. argued Plaintiffs that these bal- polling wrong precinct. location but in the lots should be but counted would not be January 2011, however, On current Secretary counted under Husted’s di- Secretary of State Jon Husted took rective. office issued a directive superseding Secretary Brunner’s Directive 2011-03. argued Plaintiffs also that an unknown (Directive 2011-04). R.38-1 Secretary number of location Husted’s Directive 2011-04 further in- would not be counted structed the Board to under Directive 2011-04 “even though now,
determine as it did on November there is poll evidence of worker error.” 16, 2010, solely based its examination Id. at 7-8. As evidence of records, books, error, of election poll help-line pointed Plaintiffs to the fact that the records, provisional-ballot envelopes approximately workers who were (i.e., the same evidence the questioned, board con- either under oath or ques- 16, 2010, tionnaire, sidered its November meet- reported that no voter had re- group then-Secretary argument 11. This what votes is that counsel calculated the number Brunner ordered to be counted in percentages Directive 149 from the in Directive 2011- superseded by argument current- 03. Counsel also indicated at Secretary Husted’s Directive 2011-04. Sec- Directive 2011-03 stated number of bal- retary specify did percentages Brunner's directive lots in terms of of the total of 269 category the total correct-location-but-wrong-precinct number of ballots this votes be- Rather, percentages, her used pub- directive cause the individual ballots could not be and counsel licly for Hunter informed us at oral identified. *11 court, January the district precinct table Also on to the correct move fused to in the hearing, granted part without a because Ohio law And when instructed. prelimi- motion to enforce the emergency if inform voters workers to requires poll the nary injunction denied as moot and and to wrong precinct the they in are enjoin proceedings. motion to state-court precinct, the correct Hunter to direct them January 12 Specifically, the district-court in the correct loca- argued that votes cast order stated: precinct must wrong have been tion but (1) enjoined hereby is from The Board poll worker believed the miscast “because Secretary Di- with of State complying precinct.” in the correct that voter was the (2) 2011-04; ordered to count rective words, the evidence of In other 8. investigated were 149 ballots that the evi- is the absence of poll-worker error the to have been cast and found Last, Id. at dence of voter error. poll to er- wrong precinct due worker’s Board argued that the violated Plaintiffs determining whether the street ror consent because it did the NEOCH decree precinct; inside the address located provisional the ballots sub- investigate (3) to count the seven ballots ordered error. ject the decree for to have investigated, that were found They of the 849 alleged Id. at 8-9. wrong precinct been cast the due subject ballots are wrong-precinct error, poll unanimously worker and vot- unknown decree and there at the Board’s December upon ed subject provisional ballots number of other (4) meeting; ordered to count rejected for rea- decree were investigated, nine ballots that were being sons other than cast to have cast correct found been precinct. Id. precinct rejected staff due to error, unanimously upon and voted 12, 2011, January eurrent-Secretary On meeting; Board’s December issued another directive to Husted (5) investigate ordered to all ballots and (Directive 2011-05). R.44-1 Sec- Board. subject to the Decree NEOCH Consent (1) retary Husted directed the Board to those poll worker error count ballots that are “examine required by that De- ballots as Consent subject order [the court’s] cree. subject con- and are not NEOCH [the (Jan. 12, 2011 order at The dis- R.39 decree], sent consistent with Ohio Su- court concluded that “[w]ere trict 7, 2011 preme January [decision] Court’s certify the election results as Board only by examining poll Painter 16, 2010, they were on November books, records, provisional- help-line Secretary of has di- what the Ohio State (2) envelopes”; pro- ballot “examine those do, would rected it to violate subject visional ballots that are Equal Protection Clause the United i.e., cast [NEOCH consent those decree — recog- at 2. It States Constitution.” Id. four using digits voters their last cast counting provisional nized Security their number identifica- Social violates Ohio state tion], requirements in accordance law once the had but reasoned that 2010-79”; 2010-74 and Directives by investigating state law violated (3) count ballots that were counting “some of the cast in the correct but erroneous- worker improperly because ly “wrong error,” of 849 refuse to the same group included it could not do Id. at 5-9 for all ballots. precinct” ballots. Id. *12 231 Gore, 98, 104-05, U.S. (citing Bush v. 531 deadline to amend the certification of elec- 525, (2000) enjoin 121 S.Ct. L.Ed.2d tion results12 and Williams from (“Having granted right to vote on once taking the oath office. The district not, equal terms, the State later granted 14, court the motion on January treatment, arbitrary disparate and value without notice or a hearing, and ordered another.”)). person’s vote over that one to appear Board before the district (Or- Tuesday, court January on 18. R.45 January 12 The district court’s order Cause). der to Show just filed before the Board was sched- At meeting, uled to meet. its the Board thereafter, Shortly filed a Williams no- requested legal opinion a from the Hamil- appeal of tice of the district court’s Janu- County ton Prosecutor’s on it Office how order, ary No. 11-3059. R.46. Subse- proceed. (Legal Op.). should R.44-2 Two 14, quently, on January the district court days later, meeting at the Board’s on Fri- also entered an enjoining order the Board 14, day, January the Prosecutor’s Office from complying with statutory Ohio’s appeal recommended the Board deadline amend the certification of the January 12 order district court’s to this by January 22, election results 2011. R.47. 5. on court. Id. at The Board voted “prohibit[ed] any The district court certifi- 2-2. appeal tied R.44 cation the election results from [the (Mot. to for an Order to Show Cause at disputed] race going from into effect until 14, January Later on Hunter and further order of [the Id. court].” in the district court a NEOCH filed motion 15, January On Williams filed this “why to show cause the Board should not stay court a motion to the district court’s contempt be held in for its failure to fol- January order. preliminary- low” the district court’s two January On the Board filed notice injunction orders. at 1. The motion Id. appeal January district court’s alleges that the Board failed has to order order, 11-3060, day No. and the next the count of the 149 ballots cast in the stay Board filed a motion to January
wrong
precinct determined
be due to
any
order and
further district-court
poll-worker error related
the voters’
proceedings.
granted
We
the motions to
addresses,
stay
January
January
12 order on
error,
due to admitted
10-4481,
appeal
11-3059,
Nos.
consolidated
have,
and the 9 ballots determined to
expedited
briefing fact,
precinct.
been cast
the correct
Id.
oral
held
argument.
argument
We
oral
on
4.
alleges
The motion also
January
2011. The district court’s or-
Board has failed to
investigate
prohibiting
der
certification of the election
subject
consent
NEOCH
decree.
has
results
remained
effect.
asking
6. In addition to
the district
court to find the Board
each
noncom-
II.
JURISDICTION
member in
pliant
contempt,
Board
Hunter
that,
requested
and NEOCH
if the
juris-
Board We first address
Defendants’
comply
January
arguments.
did not
4:00
p.m.
dictional
“The
to vote is
enjoin
the district court
right”
fundamental
the United
complying
statutory
from
with Ohio’s
protects
States Constitution
and the exer-
final,
3505.32(A),
provides
eighty-one
12. Ohio law
result-
Rev
Code Ann.
days
after the election date to amend the
ing
January
ain deadline of
canvass of election returns before it becomes
in which
disputes
far removed from
rights
the other
case is
preserves
of which
cise
insubstantial,
plaintiff’s
claim “so
im
enjoy. League Women
citizens
*13
463,
...
de
Brunner,
plausible
completely
or otherwise
548 F.3d
v.
Voters Ohio
Cir.2008)
merit
a federal
(6th
Hop
void of
as not
involve
(citing Yick Wo v.
476
Recoveries,
356,
1064,
controversy.”
kins,
370,
30
See Primaz
6 S.Ct.
118 U.S.
(6th
Gunter,
515,
(1886)).
F.3d
519
liberty
It
this core
Inc. v.
433
is
L.Ed. 220
Cir.2006) (quoting
Steel Co. v.
abrogated
Citizens
claims
that Hunter
Env’t,
83, 89,
523 U.S.
118 S.Ct.
Equal Protection and Due
Better
violation of
(1998)).
1003, 140L.Ed.2d 210
of the
Amend
Clauses
Fourteenth
Process
amend.
U.S. Const.
generally
ment. See
sure,
ir
“garden variety election
To be
XIV;
(raising constitutional
(Compl.)
R.l
present
facts suffi
regularities”
§
Nonethe
using 42 U.S.C.
claims
guaran
cient to offend the Constitution’s
ju
less,
subject-matter
Defendants contest
Burns,
process,
tee of due
v.
570
Griffin
risdiction,
allega
that Hunter’s
arguing
(1st
1065,
Cir.1978),
1077-79
and fed-
F.2d
fall squarely
concerns that
tions raise
power
“limit the
of feder-
eralism concerns
of state law and that her
within the ambit
elections,”
al
to intervene
state
courts
grave
claims are not so
as
constitutional
Cnty.,
v. Bd.
Elections
Green
Warf
jurisdic
exercise of federal
warrant
553,
(6th Cir.2010) (quoting
619 F.3d
559
tion.
(2d
Jacobowitz,
v.
394
94
Shannon
F.3d
Cir.2005)).
“[j]urisdiction
not de-
But
is
firmly
that we
It is
established
by the
possibility”
plaintiff
feated
“arising
claims
jurisdiction
have
hear
recover,
may not
or the bare fact that
alleging
un
under the Constitution”
primary authority
have
over the
states
practices taken under color
constitutional
administration of elections. Hamdi ex rel.
1343;
§§
28
of state law. See U.S.C.
Napolitano,
v.
Hamdi
F.3d
jurisdiction
§
Our
42 U.S.C.
1983.
encom
(6th Cir.2010)
Co.,
Steel
(quoting
U.S.
interlocutory
from
orders
passes appeals
1003) (alteration
origi-
S.Ct.
injunctions.
“grant[]”
“modify[]”
or
nal). That federal courts are constrained
1292(a)(1).
§
And “[i]n
28 U.S.C.
decision
they
area
not mean that
must
an
does
decision,
Supreme
has
[the
Court]
after
mute in
face of
of a
allegations
stand
a citizen has a
made clear that
constitu
rights.
impairment
non-frivolous
federal
tionally protected right
participate
Moreover,
complaint’s
references to
equal
elections
basis with other citi
on
not,
insist,
do
state law
as Defendants
Dunn v.
jurisdiction.”
zens
Blum
the constitutional thrust of Hunt-
negate
stein,
330, 336,
92 S.Ct.
405 U.S.
rather
allegations, but
underscore that
er’s
(1972).
has alleged
L.Ed.2d 274
Hunter
allegedly
Board’s
unconstitutional ac-
unequal
species
this
treatment.
She
taken
state
tions were
under color of
law.
alleges that the Board’s decision to count
See 28 U.S.C.
some
ballots miscast
a result
on
error
reliance
ex rel.
others de
Defendants’
(6th
Brunner,
vember
12 preliminary
orders,
injunction
we consider the four
III. PULLMAN ABSTENTION
AND
factors relevant
the district court’s de-
THE ROOKER-FELDMAN
termination
preliminary
enter a
DOCTRINE
*14
injunction:
alternative,
In the
Defendants first
(1) whether
the movant
a strong
has
jurisdic
if
argue that even
this court has
merits;
likelihood of success on the
tion,
deciding
we
abstain from
should
irrepa-
the movant would suffer
case.
under
Abstention
Railroad Com
(3)
rable injury
injunction;
without the
Co.,
v.
mission
Texas Pullman
312 U.S.
of
injunction
whether issuance of the
would
496,
643,
(1941),
61 S.Ct.
234 (2000). In be when, part, al- 388 this is “clearly L.Ed.2d erroneous” is
finding
it,
right
protected
to vote
“[t]he
cause
support
is evidence
though there
allocation
the fran
evi- more than
initial
court on
entire
reviewing
Equal protection applies
firm
as well
the definite and
chise.
left with
dence is
104,
has been com-
Id. at
that mistake
manner
its exercise.”
conviction
at
(citing Harper,
525
383 U.S.
mitted.
121 S.Ct.
1079). Thus,
have held
S.Ct.
540-41(internal
quotation marks
Id. at
right
to vote includes
“[t]he
omitted).
“con-
also note that
citations
We
on equal
one’s
counted
terms
vote
election cases”
specific to
siderations
Voters,
League Women
with others.”
weighed, but
exigencies
of time
be
Bush,
(citing
at 476
531 U.S.
F.3d
necessary,
procedural
it
as a
is “still
Dunn,
525;
121 S.Ct.
U.S.
matter,
give
deference
[us]
995;
Sims,
Reynolds
v.
377 U.S.
S.Ct.
of the District Court.” Purcell
discretion
L.Ed.2d
S.Ct.
Gonzalez,
1, 4-5,
549 U.S.
S.Ct.
*15
Sanders,
1, 7,
(1964); Wesberry
U.S.
v.
376
(2006).
13. The
dis-
ORP
"
putes
view,
application
this standard.
In its
showing
there be
‘an element of
Equal
Clause
Protection
has
purposeful
or
discrimination....
intentional
been
has
no
violated because there
been
discriminatory purpose
presumed;
is not
[A]
showing of intentional discrimination on the
showing
must be a
of clear and inten-
there
"
part
argues
Specifically,
Board.
ORP
(quoting
discrimination.'
Snow-
tional
merely
that Hunter must show more than
den,
8,
(internal
S.Ct.
1037 27 In other the Board is ballots that were office, exercising “in cast at the making discretion Board’s but in specific the wrong precinct. determinations The Board particular about determined poll that permitted individuals the worker giving will be a bal erred the voter the that incorrect ballot. lot counts.” Id. In contrast to more general decisions, Second, administrative cause the provisional 686 ballots that for constitutional concern is much greater contradictory were found include in- protects terms, right granted Protection the right equal Clause to vote the to vote on the arbitrary not, from invidious and discrimination. arbitrary dispa- State later Rhodes, 23, 30, 34,
E.g., Williams v.
393 U.S.
treatment,
person's
rate
value one
vote over
(1968) (holding
89 S.Ct.
21
24
L.Ed.2d
that
another.”)
(citing Harper,
that of
383 U.S. at
"
'invidious' distinctions cannot be enacted
1079);
86 S.Ct.
id. at
formation —the at Board’s office and ballots cast The Board de- identification. provided polling cast at locations—and ballots erred poll worker that termined differing concluded “the [Board’s] information was further indicating that provisional ballots treatment of various required. equal raises wrong precinct cast in the that had Third, ballots provisional (Nov. 22, R.13 concerns.” protection only signature par- or voter either no district court found order The no name printed or tial name any specific the Board “ha[d]—without The Board determined affirmation. statutory mandate —carved out situations requiring erred worker provisional it will count which ballot. voter to vote at 7. In wrong precinct.” cast in the Fourth, in which order, January its the district court themselves were from the ballots explained analysis Plaintiffs’ further its envelopes but the Relying claim. equal-protection precinct. from the correct weight premise ‘equal “fundamental poll-worker error was re- concluded that ” vote,’ court accorded to each [be] sponsible for this defect. evi- explained that because Board took ¶¶ 26-29); & Ohio (Compl. R.l NEOCH poll-worker error into consider- dence of 12-13; Party Br. at Plain- Democratic 1st cast in the ation for the 2d at 15-16. tiffs Br. office, precinct at the it must do Board’s categories provision- four Given these all ballots cast same Board did al ballots in consider (Jan. 12, 2011 wrong precinct. R.39 error, Plaintiffs evidence 8) Bush, (quoting order at U.S. point categories to four other 525) (alteration in original). 121 S.Ct. ballots in which Board did consider agree court’s We *17 poll-worker of whether there was evidence analysis and conclude that there is a suffi error, argue that the Board should strong on an ciently likelihood success them similar to have treated in a manner weigh equal-protection claim to in favor categories respect the four with first of a grant preliminary the court’s district error, poll-worker but did not. These four injunction. provisional In review of the its categories following: consist of the ballots, apply specific the must Board First, provisional ballots that were 849 “ uniform standards to avoid the ‘nonarbi day poll- cast voters on election at a ” League trary treatment of voters.’ location, wrong ing precinct. but in the Voters, (quoting at Women 548 F.3d Second, provisional ballots that had Bush, 105, 121 531 U.S. at S.Ct. in printed no name the affirmation. provi reviewed the 27 When the Board Third, only that had provisional office, at the sional ballots cast Board’s in partial name the affirmation. being in the those ballots cast despite Fourth, provisional ballots that were Board evi wrong precinct, the considered the signed by not voter. the where the ballots dence of location ¶¶ 30, 34-35); & (Compl. R.1 NEOCH concluding in those ballots were cast Party 1st Br. at 14-15. Democratic result of poll-worker miscast as a were in Similarly, although included injunc- error. granting preliminary When the order, analysis, note that the the district court’s tion its November meeting, at the Board provision- its November 19 category court focused on had no up just counted cast choice to walk one (Nov. 16, person.” that were found envel- R.l-3 2010 Board 42-44). opes precinct. Meeting for the correct But con- Tr. at The voter went to location, i.e., office, trast to these instances which the Board the correct the Board’s poll-worker considered evidence of error and the staff at the Board’s office required its wrong-precinct give review voter the bal- correct lot; ballots, thus, the Board did not evi- consider there is little chance that respect erred, dence with to 849 bal- voter and the wrong-precinct ballot precinct lots the wrong polling poll-worker cast in at must be due error. Simi- larly, locations. at multiple-precinct loca- polling tions, went voters to the correct location particular, In the Board re- explicitly and the required workers were separate wrong- fused to from direct precinct. voters to the correct precinct at ballots those ballots cast sure, polling wrong precinct. location but To be there may more explana- be of poll-worker The evidence error with for why might tions the voter have erred respect to those 269 ballots14—that the multiple-precinct at polling locations multiple- office, ballots were cast at the correct than at the Board requiring great- substantially polling location—is er inference to conclude the miscast similar error, location evidence considered ballot was a result presented the ballots but Defendants have any instances, Thus, cast at office. In there persuasive its both rationales.15 we believe is no the poll direct evidence that worker that the situations of voters the Board office, erred. For the 27 ballots cast at its office and multiple-precinct loca- polling however, substantially concluded that tions are similar. For the 27 casting cause of office, the ballots ballots cast at its precinct must be error be- Board considered the location where the cause, logic, under Board’s “the voter ballot was of poll-worker evidence ing 14. total necessarily record indicates that the initial do not locations cast their physically precinct; votes while right polling "in” ballots cast location but those, multiple-precinct Board utilizes these loca- wrong precinct was 286. Of some among neighboring tions to share resources disqualified for other reasons and others precincts. Although physi- *18 voters be were to found have been cast in the correct cally precinct voting located in their at when place, leaving location the first still 269 in locations, multiple-precinct polling they these R.38-8, dispute. Ex. at 1-2. 1 must cast their votes on the ballot that corre- sponds precinct. to correct their argues 15. Williams that the 27 cast at votes attempted The argument Board also at oral distinguishable the downtown office "is sit- distinguish to the on the that fact they uation” because were not in the "cast polling temporary locations utilize workers on wrong precinct” but rather at the downtown day, election whereas the Board's full-time 4, office. Williams 1st Br. at 14-15. He question staff at its office. We whether argues goes that "[n]o one who to Board legal any significance, this is a distinction of early voting of Elections to vote in his or support and note that the record does precinct.” her own at 15. extent To the (Nov. 16, factually. distinction R.l-3 2010 attempts that Williams make a to distinction 43) ("[T]he Meeting Board Tr. at we staff that location, argument physical based on the [office], have here at the Board of Elections Casting is not well "in the taken. ballot part sometimes we full time and time. precinct” simply cannot mean the voter must part-time So our we have extras that aren’t as physically here, be located within the of system registration boundaries familiar with our precinct. multiple-precinct system.”). Voters in vot- 238 respect with to ballots cast worker error 269 for the
error, but
rather mandates
wrong
wrong precinct,
location but
right polling
cast at the
no
cast in the
not.
that
ballot
did
Board
precinct, the
counted.17,18 Painter, 941 N.E.2d
may be
correspond-
unlikely
“a
it
We think
of
Despite
requirements
at 793-94.
equal-
sufficiently weighty” for
ing interest
law,
provided
Plaintiffs have
evidence
state
justifies the Board’s
purposes
protection
election,
that, in
the Board
the November
evi-
to consider similar
to refuse
decision
poll-worker error
considered evidence of
respect
error
with
poll-worker
dence
cast
some ballots
Norman v.
ballots.
similar
similarly sit-
but not other
288-89,
698,
279,
112
Reed,
S.Ct.
U.S.
bal-
uated ballots when it evaluated which
(1992). Rather, disparate
116 L.Ed.2d
doing,
In
the Board
lots
count.
so
resulted, not from
here
treatment of voters
discretion,
a uniform
exercised
without
state interest
com-
“narrowly drawn
apply,
determining
standard
but instead from local
importance,”
pelling
miscast due
to count
law.
state
misapplication
Crawford
be
error that otherwise would
Bd.,
181,
553 U.S.
Cnty. Election
Marion
state
invalid under
law.
race—Hamilton Juvenile Court Implications ii. Statewide Judge. This is not a situation which a It argued has also been that the district announcing court is a standard to be inter equal-protection court’s analysis, which fo- preted differently by jurisdictions, multiple countywide equal cused on treatment of resulting unequal counting of votes ballots cast because Instead, across counties. the district court error, requiring County created another Hamilton Board of equal-protection problem Elections to all up. review deficient one level county is, ballots within the under same That wrong-precinct certain ballots are standard, just cast at those one ordered to only be counted in Hamilton particular Therefore, location. the district County, and not the rest of Ohio. Ac- order, court’s unlike the statewide order in cording Secretary Husted, the district Bush, give inter-jurisdic does not rise to required court would be order same tional differences how the order is im investigative process statewide plemented. applied County’s to Hamilton subjecting to avoid provi-
We order recognize whatever review the must sional ballots across the state to conducts be limited some differen- way. given But that the Board chose to tial treatment. *22 law, however, contrary of Ohio indi- Board, instruction did particular
This
already
their
adopted
cast vidual counties have
provisional
ballots
equally
treat
applied
differential
county, and that
own standards
and
its own
within
provisional
that we
ballots.
problem
address.
treatment
equal-protection
County
eligi-
are
Only
in Hamilton
voters
event, we need not address
any
In
County Juvenile
for Hamilton
to vote
ble
counting
initial
either the
whether
voters in other
Judge. Because
Court
subsequent provi-
miscast ballots or
for a local
not cast votes
counties
a level
investigation
sional-ballot
rises to
remedying poll-worker error
judgeship,
inequality
consid-
of unconstitutional
when
race
votes in this
does
respect to
hypothetical
challenge.
in a
statewide
ered
out-
treatment of voters
unequal
result
treatment of
The inconsistent
County.
counting
of
side Hamilton
pre-
across Ohio counties and the
County
in a Hamilton
provisional ballots
county
degree
inequality
of
from
cise
impact
voters who
race does not
is not
county
tolerated
the Constitution
in other races
treated
cast ballots
Tokaji,
Daniel P.
Leave
issue here. See
compared
similarly
equally when
situat-
In-
It
Lower
On
Courts:
Judicial
ed voters in those races.
Administration,
tervention
Election
(de-
implications
(2007)
equal-protection
Statewide
1069-70
Ohio St. L.J.
however,
arise,
that the
could
to the extent
scribing application
principle
candidates for dis-
equal
issue include
voters
counties
treatment
across
administration).
.races that
transcend
trict
statewide
matters
election
We
Bush,
county
amend the canvass of election
iii.
And,
Voter Dilution
pro-
extent that Ohio election
present
due-
equal-protection
cedures
argument,
At
raised
oral
problems in local contests in other
process
dilution.
issue of voter
Amicus ORP also
counties,
they may
separate
be resolved
issue, arguing
that “the count-
raised
litigation.
ing
ballots east
Furthermore,
argues
worker error ...
Hunter
because
problem
every
County
al-
Hamilton
voter who
equal-protection
statewide
harms
exists,
ready
legal
precinct.”
whether Hamil-
cast a
vote in
correct
regardless of
Br. at 21-22.
According
ton
ballots are investi- ORP 2d Amicus
County
ORP,
these
were cast in violation
gated.
provided
Hunter
evidence
votes
law,
to include such votes
provi-
four other counties Ohio counted
among
the rest of the votes will dilute the
sional ballots cast
the correct location
other,
at 22
power
of those
valid votes.
the November
Sims,
(Board
(citing Reynolds
Lu-
377 U.S.
election. R.20-7
Minutes for
(1964)).
cas,
Williams,
Seneca,
2. Due Process Yet, location to vote. the state present argument Plaintiffs fail- penalizes law a poll voter when worker ure to count provisional ballots cast wrong precinct, directs the voter to the precinct poll-worker incorrect due to disenfranchisement, error penalty, is a violates the Due Process Al- Clause. harsh one indeed. To disenfranchise citi though Painter made clear as a matter of only zens whose error relying poll- on state law that exception there is no appears worker instructions to us to be Purcell, votes miscast in an incorrect due fundamentally unfair. Cf. error, to poll-worker (“[T]he Plaintiffs have assert- U.S. S.Ct. 5 possibility ed due-process challenges qualified the state law that might voters be turned away itself, which prohibits counting provisional polls any from the would caution ballots cast in the precinct, judge give even careful consideration to the where there plaintiffs’ is evidence that the error was challenges.”). Particularly when entirely error, caused workers. there is evidence of consent forcing terms NEOCH of miscast treatment
categorical It troubling.24 decree. law is provided however, due-pro- to decide premature, interest, factor, public “pri- final laws to Ohio’s election challenge cess marily impact non-parties.” addresses because error
they
relate to
Angeles Cnty., 339 F.3d
Bernhardt v. Los
fully
briefed
parties have
(internal
(9th Cir.2003)
quotation
*24
on this
yet
not
ruled
court has
omitted).
case,
In this
both the
marks
issue.
public
interests
voting
and the
have
state
responsi-
are “primarily
at stake. States
Equitable Factors
C.
federal, state,
regulating
and local
ble for
elections,” Sandusky
Democratic
Cnty.
of success
the likelihood
In addition to
(6th
Blackwell,
Party 387 F.3d
influence
merits,
other factors
three
on
Cir.2004),
a
in
strong
and have
interest
injunction:
preliminary
a
propriety
ability to enforce state election law
their
irrepa
would suffer
the movant
“whether
Cnty. Demo-
requirements.
Summit
injunction”;
injury
rable
without
Cf.
Blackwell,
cratic Cent. & Exec. Comm. v.
injunction
would
“whether issuance
(6th Cir.2004) (“There
388 F.3d
is
others”;
harm to
and
substantial
cause
a
in
strong public
permitting
...
interest
be
interest would
public
“whether
legitimate
statutory processes to
[state]
injunction.”
served
the issuance
voting by
to
those who
operate
preclude
Dry Cleaning Net
Certified, Restoration
vote.”).
entitled
work,
The
exercising
“strong
defendant
have a
interest
injunction
absence of an
mirrors
Pur
political right
fundamental
to vote.”
injury from the issuance
Williams’s
(internal
cell,
4, 127
injunction
disputed
S.Ct. 5
because
U.S.
omitted).
The
That interest
quotation
of the election.
marks
is
matter
the outcome
ultimately
favoring
the election best served
enfranchisement
candidate who
loses
qualified
that
irreparable
ensuring
and substantial
voters’ exercise
will suffer
therefore,
harm,
with
to the
their
to vote is
Be
successful.
occurred,
candidates,
already
factors
this
has
second and third
cause
election
worry
conflicting
a sub-
need
court
negate each
Board has
other.
carrying
its election
will
“voter confusion and
generate
stantial interest in
out
orders
timely
consequent
away
state
remain
ineentive[s]
duties
accordance with
Additionally,
polls.”
intervenor-
Id. at
participatory democracy.” that, We understand unlike the 27 bal- Finally, public S.Ct. 5. while benefits Elections, lots cast at the Board of these filling judicial from expeditious- vacancies categories other of ballots that were count- ly, judge who temporarily filling ed cannot be identified and uncounted. contested seat has relieved some of the Indeed, it is not clear to us whether the urgency in this case. ballots that the Board unanimously voted (the to count at its meeting Williams and the Board raise the fact December 28 votes original ballots miscast determined interviews kept were each with its workers have been miscast because of *25 separate envelope only ballot error and bal- the 9 votes deter- by mined lots that the Board remade to the Board’s the correct review to have been commingled precinct) have been with the correct have been Therefore, appar- irretrievably. rest of the ballots. it is counted uncounting ently is, therefore, 27 possible for the Board to “uncount” not a satisfactory remedy suggestion the 27 votes. But this a for the challenge. Plaintiffs’ Addi- tionally, possible remedy unsatisfactory. is as we have explained, prefer- it is equitable able as an matter to enable the First, although the district court relied exercise of the to vote than it is to differing on the treatment of ignore the results of the investigation al- ballots cast in the wrong precinct for its ready Furthermore, undertaken. we have claim, analysis of the equal-protection significant due-process regarding concerns Plaintiffs allege other instances in which qualified disenfranchisement of voters the Board counted otherwise provi- invalid solely on account of known by error caused sional ballots because of error a whole, therefore, state actor. On the to support their constitutional claims. R.l equitable support factors the district ¶¶ (Nov. 26-29); (Compl. at see also R.13 grant court’s of a preliminary injunction. 3) (“The 22, order, 2010 Board found Considering the multiple strong likelihood of suc- instances of worker error in equal-protection cess on this claim and the its review of the ballots. For equitable supporting grant factors of a example, the Board that ap- discovered preliminary injunction, we conclude that proximately twenty-six provisional ballots court did not abuse its had been cast in the discre- even grant preliminary injunction tion its of a though the ballots had been cast at the 22, in the November 2010 order. Board of (emphasis Elections downtown.” added)). In particular, Plaintiffs allege Hearing Requirements D. Notice & that counted 686 contradictory conclude, had information Although we for the rea regarding above, identification and provi- voter 13 sons discussed the district sional sig- ballots that had either no voter court did not abuse its discretion its only partial nature or a printed name or no pre ultimate determination that the four name in the affirmation. allege liminary injunction Plaintiffs weigh factors in favor rejected that the Board other granting similar cate- of preliminary injunctive relief in gories 22, of provisional order, ballots —those without the November we nonethe (53), printed a only partial vacate, name a less conclude that in part, we must 12, its Jan- January order. The district court characterized court’s the district particular votes uary response court ordered 2011 order as a The district effect, modifying counted—in plaintiffs’ to be Prelimi- [the] “Motion Enforce notice prior 22 order —without November nary Injunction.” (January R.39 a opportunity an for to Defendants or 1) added). (emphasis Order at How hearing. Rule of Civil Procedure Federal however, order, styled its is district court 65(a)(1) explicitly requires the district “the and we instead to dispositive, look provide “notice to the adverse court to of the order and the substance nature preliminary injunc a issuing before party” what below” to determine proceeding 65(a)(1) ex Rule does not tion. While action district court took. Ne. Ohio require hearing, Supreme Court pressly Coal, Blackwell, 467 the Homeless v. for re “[t]he notice precedent establishes (6th Cir.2006) (holding F.3d 65(a) implies hearing ... quired Rule “the attached to an order the trial label given fair which the defendant assessing decisive” court is not when application opportunity oppose interlocu- parties bring opposition.” Granny such prepare for 1292(a)(1)); tory under 28 appeal U.S.C. Foods, Inc. v. Brotherhood Team Goose Rullan, F.3d Morales Feliciano v. cf. & Truck Drivers Local No. 70 sters Auto (1st Cir.2002) that, pur- (holding 415 U.S. n. Cnty., Alameda *26 1292(a)(1), poses an order modifies— (1974) 1113, L.Ed.2d 94 39 435 S.Ct. “if it interprets- injunction rather than —-an insufficient). (deeming “same-day notice” substantially readjusts relations legal that, recently, al More clarified simply parties, of the not relate does required though hearing is not “when the progress litigation” the conduct or law,” questions are primarily issues (internal omitted)). practical citation The 65(a)(1) require hearing Rule “when does 12, January effect was to 2011 order are factual material disputed there issues” 22, modify November preliminary 2010 injunction. preliminary Certified injunction vehemently disputed on a based Dry Cleaning, 511 F.3d at Restoration issue of fact: whether error have not hesitated to dis “[C]ourts miscast caused various sets voters to injunction preliminary solve a issued with wrong precinct. In the Jan- ballots opportunity out sufficient notice or to con order, 12, uary 2011 court en- the district issues of fact or of law.” Amelkin v. test joined Secretary Husted’s compliance McClure, 94-6161, 8112, No. 1996 WL Directive did not exist until which (6th Cir.1996) (unpublished *5 opinion); 22, well after November 2010. The dis- Sebelius, Wyandotte v. accord Nation trict investigation court also ordered Cir.2006) (“ 1247, (10th F.3d ‘Prelimi subject ballots consent de- NEOCH injunctions nary without notice to entered cree, a which not discussed in decree the opposing party generally are dis ” 22, Finally, November order. (quoting solved.’ United v. Micro States specificity district court identified with (D.C.Cir.1998))). soft, 147 F.3d requirement which votes to count—-a 65(a)(1) equally demands of Rule 22, 2010 beyond went far the November pertinent issuing a court is or whether order, had defen- simply instructed modifying injunction. an W. Water an into “begin investigation Brown, dants Mgmt., Inc. F.3d (5th Cir.1994) (“[W]e poll worker error contributed authority find no al rejection ... of the 849 ballots lowing injunction] an [of modification notice.”). ... now recount be made without in issue include has, any provisional improperly effect, east for 2011-04. That Directive error,” poll superseded by reasons attributable to worker been Directive 2011-05. (Nov. R.13 2010 order Because With to the NEOCH consent de- cree, prelimi- parties agree it modified the November all the consent injunction facts, nary by resolving disputed decree remains and should be followed. January it, 2011 order should not have parties Because the do not contest we prior affording been issued to the defen- AFFIRM the district January court’s opportunity notice and an dants to be 2011 order that the “investigate Board all subject heard. to the NEOCH Consent poll Decree for worker error and count V. CONCLUSION required by those ballots as that Consent Decree.” We leave to the district court in conclude that the We district court did instance, the first applying the uniformity in granting not abuse its discretion Gore, requirement of Bush v. to direct the 22 preliminary injunction November order- proceed how to regarding the 9 ing “immediately begin the Board to ballots unanimously determined investigation poll into whether worker er- Board to have been cast in the correct rejection ror contributed to the of the 849 precinct, the 7 unanimously deter- ballots now issue and include mined the Board to have been miscast in the recount of the race for Hamilton error, because of the 269 bal- County any Juvenile Court Judge provi- lots cast the correct location but improperly sional ballots cast for reasons precinct which the determination of poll- attributable to worker error.” We and, worker error disputed, pur- remains also conclude that Plaintiffs have shown a Decree, suant to the NEOCH Consent strong likelihood of success on the merits *27 NEOCH ballots. equal-protection of their claim and that the balance of harms remand favors Plaintiffs. We this case to the district court for proceedings further consistent We also conclude that it premature was with opinion. this for the district court identify which bal- lots were poll-worker miscast due to error. ROGERS, Circuit Judge, concurring in Although there is support evidence to the judgment. findings, district court’s and indeed some I agree largely majori- with much of the portions January of the 12 order reflect ty opinion. briefly I write in light of the the unanimous Board votes to count the 7 need for our court to promptly. rule admitted error ballots and the ballots, 9 correct-precinct we conclude that I am not strong confident that there ais it premature was findings make the likelihood of success with respect to the when the Board and Equal Williams lacked the Protection claim that is the basis for opportunity present their own evidence the district 22 court’s November order. arguments result, in opposition. As a That order is based on unequal treatment portion VACATE the of the district groups two of ballots: 27 ballots cast January court’s 12 directing order the Board’s office prior to the election ballots, Board to count the 149 the 7 bal- where the ballot wrong pre- was for the lots, (almost error) and the 9 ballots. We VACATE certainly AS cinct due to official portion MOOT the of the district larger court’s and a much number of ballots January 2011 enjoining order the where voter cast a ballot at the (where complying Board from with Directive doing may table so have error). that No- Assuming The the district court’s situa- been due properly bi- vember order determined sufficiently different were tions Protec- unanimously Equal of success on the elections board likelihood partisan situation, claim, however, agree in the former I the votes tion counted in the latter January count the votes must be vacated did not court’s order but given by majority. for the reasons situation. entirely not clear It is holding In this case we Ohio law in Board acted accordance Supreme Court as to how the district Ohio way votes, either counting the 27 should be com- court’s November order strong not particularly likelihood ex- Supreme with. Ohio Court plied Protection violation Equal there was contemplated compliance with the plicitly Gore, principle of Bush v. under the court’s order. See November L.Ed.2d 121 S.Ct. U.S. Brunner, ex rel. Painter 128 Ohio State (2000). wrong-precinct groups The two (2011).1 782, 795, 798 St.3d 941 N.E.2d that Ohio sufficiently different was a exercise of dis- This commendable 27 votes permit counting the law could system in a where cretion constitutional much more ground the error independent and state courts are federal ascertainably not clearly and attributable lower each other. State courts and federal election-day poll- than the voter not, need strive not to courts and should if law ing place situations. And Ohio does be, public in conflict. and the The law votes, they the 27 then permit counting support equita- federal tailoring interest view of counted under a mistaken closely relief so as to as ble conform circumstance, the Board. In that law in- possible Supreme Court’s challenge be there should a state-law terpretation of Ohio law. election cast, erroneously not a counting the votes county- the state control the larger much of votes While courts cannot of a number in a of a erroneously that were cast simi- enforcement federal court order en- wide way. forcing law, federal courts exactly lar —but the state same— Moreover, responsible direct counting improperly properly votes state officials carrying out the choice county-wide, where the ballots include the order on *28 races, This is trans-county options district and state raises consistent with the order. done, Supreme in hav- the Ohio has Equal serious Protection concerns what Court appears counted differ- it done so in a ing County Hamilton votes to have ently thoughtful from those and deferential manner. of other Ohio counties. ("Therefore, though they secretary period be even 1. Id. at 795 state should counted duty election officials on wrong precinct poll- also has instruct were cast in the due to applicable requirements of federal elec- error. was limited to worker That review well tion law as as federal court orders that books, help-line the poll examination of rec- them.”); ("And applicable id. at 798 ords, provisional-ballot envelopes Judge injunctive require Dlott's order did not emanated from the evidence uncontroverted secretary investigation by ordered wring pre- that these ballots cast in the state and conducted the board of elections error.”); id. at 798 cinct due to best, any equal-protection here. At claim ("Therefore, grant a writ of man- relators merely required would have the same exami- compel damus ... the board of elections nation that the board conducted in—conclud- provisional bal- ... to instead review the 850 incorrectly ing pro- under Ohio law—that Judge subject that are the Dlott’s or- lots visional cast in the ”). ... der. during early-voting the board of elections equi- The district court balance give great
ties in future orders should
weight public minimizing interest in court control of state election
federal law view, my In practice. this factor
weighs strongly conforming any favor of possible
further relief—as far as it is to do
so consistent with the November or- roadmap
der —to the outlined the Ohio
Supreme Court. America,
UNITED STATES of
Plaintiff-Appellee, RAMIREZ,
Shanna Defendant-
Appellant.
No. 09-6544. Appeals,
United States Court of
Sixth Circuit.
Feb.