NORTHEAST OHIO COALITION FOR THE HOMELESS; Service Employees International Union, Local 1199, Plaintiffs-Appellees, Ohio Democratic Party, Intervenor Plaintiff-Appellee, v. Jon HUSTED; State of Ohio, Defendants-Appellants. Service Employees International Union Local 1, et al., Plaintiffs-Appellees, v. Jon Husted, Defendant-Appellant, State of Ohio, Intervenor.
Nos. 12-3916, 12-4069
United States Court of Appeals, Sixth Circuit
Argued: Oct. 1, 2012. Decided and Filed: Oct. 11, 2012.
696 F.3d 580
Before: GIBBONS and COOK, Circuit Judges; ROSENTHAL, District Judge.*
OPINION
PER CURIAM.
These consolidated election law appeals present constitutional challenges to Ohio‘s strict application of its disqualification rules for nonconforming provisional ballots to those caused by poll-worker error, as well as issues involving the validity of a federal court‘s consent decree that abrogates state law without finding violations of federal law. At issue are Ohio‘s requirements that provisional ballots be cast in the correct precinct and with a completed voter affirmation, making no exception for wrong-precinct and deficient-affirmation ballots caused by poll-worker error. See
Appeal 12-3916 stems from the district court‘s denial of the state‘s motion to vacate a 2010 consent decree that requires the counting of certain wrong-precinct and deficient-affirmation provisional ballots where poll-worker error caused the nonconformity. Under the consent decree, this remedy applies only to voters that use the last four digits of their social security number (“SSN-4 voters“) for identification to cast their provisional ballots. The Ohio Secretary of State and the State (collectively “State defendants” or “State appellees“) both appeal this judgment. Appeal 12-4069 arises from the district court‘s preliminary injunction that requires the counting of all wrong-precinct and deficient-affirmation provisional ballots to remedy Ohio‘s systemic exclusion of nonconforming ballots caused by poll-worker error. The Secretary contests only the deficient-affirmation aspect of the preliminary injunction; the State as intervenor-appellant challenges the injunction‘s wrong-precinct remedy. Absent the preliminary injunction or consent decree, Ohio would not count any wrong-precinct or deficient-affirmation provisional ballots, regardless of poll-worker error. See
For the following reasons, we sustain part of the preliminary injunction in appeal 12-4069, AFFIRMING the wrong-precinct remedy and REVERSING the deficient-affirmation remedy. The district court‘s judgment in No. 12-3916 is AFFIRMED, and the matter is REMANDED so that the district court may expeditiously address (1) the equal protection issue created by the consent decree‘s provision for the counting of deficient-affirmation ballots by SSN-4 voters, and (2) a motion to modify the consent decree in light of the equal protection concerns raised by the consent decree‘s differential treatment of provisional ballots.
I. BACKGROUND
A. Facts Related to Appeal 12-3916: The Consent Decree
As the district court recognized, the consent decree arose from the “turbulent saga of Ohio‘s provisional voting regime” that began in 2006 when Ohio enacted comprehensive election reforms. (No. 2:12-CV-562, R. 67, Plenary Op. & Order at 2.) Because we previously detailed the consent decree‘s history in Hunter v. Hamilton County Board of Elections, 635 F.3d 219, 223-24 (6th Cir.2011), we review only the relevant parts.
In 2006, the Northeast Ohio Coalition for the Homeless and the Service Employees International Union Local 1199 (collectively “NEOCH plaintiffs” or “NEOCH appellees“) filed suit against Ohio‘s Secretary of State challenging numerous aspects of Ohio‘s new voter-identification laws. After lengthy negotiations, the NEOCH plaintiffs settled their claims with then-Secretary of State Jennifer Brunner by entering into a consent decree. Though the consent decree stopped short of finding constitutional violations, it provided the following injunctive relief for SSN-4 voters: the State would not reject provisional ballots that, due to poll-worker error, were cast (1) in the wrong precinct but correct polling place, or (2) with nonconforming or incomplete ballot affirmations. (No. 2:06-cv-896, R. 210, Consent Decree ¶ 5(b)(v), (vi).) As explained in Hunter,
The consent decree, in effect, carved out an exception for counting provisional ballots otherwise invalid under Ohio law if the deficiency was due to poll-worker error—albeit a narrow one limited to those provisional ballots cast by a voter who uses the last four digits of his or her Social Security number as identification.
635 F.3d at 224. By its terms, the consent decree remains in effect until June 30, 2013 unless modified.
The State did not object to the consent decree‘s remedy until the Ohio Supreme Court issued a 2011 decision holding that Ohio‘s election laws offered no protections for wrong-precinct provisional ballots caused by poll-worker error. State ex rel. Painter v. Brunner, 128 Ohio St.3d 17, 941 N.E.2d 782, 794 (2011) (per curiam). After Painter, the State defendants returned to district court seeking to vacate the consent decree, citing a conflict between state law and the consent decree‘s remedies. Moreover, the State defendants argued that the consent decree was void ab initio because the Secretary of State lacked the unilateral authority to abrogate state law in the absence of a federal constitutional violation. (Again, the consent decree did not find constitutional violations.) In the meantime, a different group of plaintiffs, whose claims we will discuss next, challenged the consent decree‘s preferential treatment of SSN-4 voters in separate litigation. Responding to this emerging issue, the NEOCH plaintiffs also moved to modify the consent decree, seeking to expand its remedy to all provisional voters (not just SSN-4 voters) in order to prevent its dis-
By opinion and order of July 9, 2012, the district court denied the State defendants’ motion both on issue preclusion grounds and on the merits. Specifically, the district court rejected the State defendants’ argument that the consent decree irreconcilably conflicted with state law, as pronounced in Painter and State ex rel. Skaggs v. Brunner, 120 Ohio St.3d 506, 900 N.E.2d 982 (2008). Citing Northridge Church v. Charter Twp. of Plymouth, 647 F.3d 606, 614 (6th Cir.2011), the district court also held that
The State defendants timely appealed. The Ohio Democratic Party, which intervened as a co-plaintiff at the district court, joins the NEOCH plaintiffs as appellees.
B. Facts Related to Appeal 12-4069: The Preliminary Injunction
On June 22, 2012, several unions and a community organizing group (collectively the “SEIU plaintiffs” or “SEIU appellees“)1 filed suit against Ohio‘s current Secretary of State Jon Husted, as well as members of the Cuyahoga County, Franklin County, and Hamilton County Boards of Elections. The SEIU plaintiffs allege that
The district court held an evidentiary hearing on July 30, 2012, and issued its preliminary injunction on August 27, 2012. As necessary for the issuance of a preliminary injunction, the court‘s 58-page Plenary Opinion and Order assessed the SEIU plaintiffs’ likelihood of success on the merits of their constitutional claims, as well as the equitable factors necessary for injunctive relief: irreparable harm, harm to others, and the public interest. The court premised injunctive relief upon three likely equal protection violations and a likely due process violation.2
Beginning with the SEIU plaintiffs’ wrong-precinct ballots claim, the court found reliable evidence that Ohio‘s county election boards disqualified thousands of wrong-precinct ballots in each of Ohio‘s three most recent elections. Specifically, the court found that Ohio rejected more than 14,000 wrong-precinct ballots in 2008 and 11,000 more in 2010, with wrong-precinct rejections occurring in the vast majority of Ohio counties. (Plenary Op. & Order at 26 & n.28, 27 (counting 14,335 wrong-precinct rejections in 2008 and 11,775 in 2010).) And in the mid-cycle election of 2011, which involved no federal races, Ohio kept specific data regarding right-place/wrong-precinct ballots revealing that Ohio disqualified more than 1,800 such ballots. But for the consent decree entered in the NEOCH litigation, Ohio would have disqualified another 1,500 such ballots. (Id. at 25-26 (finding that Ohio disqualified 1,826 of 3,380 right-place/wrong-precinct ballots in 2011).) This data led the court to conclude that “[w]hile the number and frequency of wrong-precinct ballot disqualifications vary county to county, the problem as a whole is systemic and statewide.” (Id. at 26.) The court noted that “[m]uch of the factual basis upon which the Court relies for its findings is uncontested, or has already been established by this Court or the courts in [the Hunter litigation].” (Id. at 25.)
Though the Secretary did not dispute the accuracy of these statistics, it challenged their relevance in light of recent efforts to improve Ohio‘s provisional ballot system. The Secretary also argued that reasons other than poll-worker error may have caused some of the wrong-precinct ballots. The district court rejected these arguments, citing the failure of previous state directives and the absence of evidence that voters disobeyed poll-worker instructions regarding voting precincts. “No party,” it stated, “has identified a single example, from the past four years’ elections, of a wrong-precinct provisional ballot being cast because the voter refused to vote in the correct precinct.” (Id. at 29.) Invoking poll workers’ statutory mandate to direct voters to the correct precinct and inform them that wrong-precinct votes will not count, see
Deeming this burden “arbitrary,” “irreversible,” and “severe,” the court proceeded to weigh the state interests justifying the automatic disqualification of wrong-precinct provisional ballots under the balancing test set forth in Anderson v. Celebrezze, 460 U.S. 780, 789 (1983), and Burdick v. Takushi, 504 U.S. 428, 434 (1992). To justify the automatic-disqualification rule, the Secretary relied on the “significant and numerous” advantages of the precinct voting system articulated in Sandusky County Democratic Party v. Blackwell, 387 F.3d 565, 569 (6th Cir.2004) (per curiam): (1) capping the number of voters at a polling location; (2) limiting the precinct ballot to the applicable federal, state, and local elections a citizen may vote in, which has the result of (3) making the precinct ballot less confusing; (4) simplifying election administration and oversight, so as to minimize election fraud; and (5) enabling the state to place polling locations closer to voter residences. The court deemed the first, third, and fifth Sandusky factors inapposite, because the automatic-disqualification rule affected voters who arrived at the right polling location and did nothing to make provisional ballots less confusing. The second Sandusky factor—limiting precinct ballots to eligible races—somewhat justified the disqualification of wrong-precinct ballots in the court‘s view, inasmuch as the State has an interest in preventing ineligible voters from casting votes in the wrong races. But because the SEIU plaintiffs sought to “remake” wrong-precinct ballots to count only “up-ballot” votes—a practice the court noted had been employed by the consent decree since 2010—the court found no likelihood of vote dilution or detrimental effect on the precinct voting system. Finally, the court rejected for lack of evidence the Secretary‘s purported interest in election administration, monitoring, and record-keeping. Citing dicta from this court‘s decision in Hunter, see 635 F.3d at 243 (expressing “substantial constitutional concerns regarding [Ohio‘s] invalidation of votes cast in the wrong precinct due solely to poll-worker error“), the district court concluded that the SEIU plaintiffs “have submitted reliable, uncontroverted evidence demonstrating that a discrete class of prospective voters will be severely burdened by [the disqualification of wrong-precinct provisional ballots caused by poll-
In addition to its Anderson/Burdick balancing, the district court found Ohio‘s disqualification of right-place/wrong-precinct provisional ballots to constitute invidious discrimination because the restriction bore no relation to those voters’ qualifications. See, e.g., Harper v. Va. Bd. of Elections, 383 U.S. 663, 666-67 (1966). Though Ohio‘s disqualification rule differed from the “archetypal case of an invidious restriction“—the poll taxes at issue in Harper—the district court reasoned that “[l]ike poll taxes ... any rational basis for rejecting wrong-precinct ballots of registered voters due to poll-worker error is equally unreasonable,” because the restriction “is unrelated to the prospective Plaintiffs’ voter qualifications.” (Plenary Op. & Order at 41.)
2. Equal Protection: Deficient-Affirmation Ballots Caused by Poll-Worker Error
Turning to the SEIU plaintiffs’ claim regarding deficient-affirmation ballots, the court cited 2011 election data showing that Ohio rejected 568 provisional ballots due to such technical deficiencies as “a missing or misplaced printed name or voter signature, or the voter‘s signature was deemed not to match the exemplar on file with the Board.” (Id. at 43.) The court attributed these deficiencies to poll-worker error “because it is the poll worker‘s duty to ensure that provisional ballots are cast with a validly completed ballot envelope and affirmation.” (Id. (citing
The Secretary argued that new directives, especially Directive No. 2012-01, mitigated the burden on these voters, but the district court disagreed, stating that the directive “instructs boards of elections that provisional ballots are not to be rejected only where the poll worker fails to fill out his or her portion of the provisional envelope.” (Id. at 45.)
3. Equal Protection: The Consent Decree‘s Preferential Treatment of SSN-4 Ballots
Next, the district court agreed with the SEIU plaintiffs that Ohio‘s differential treatment of wrong-precinct ballots, depending on the form of identification used to cast the ballot, violated equal protection. Recognizing that the NEOCH consent decree provided a different vote-counting standard for SSN-4 provisional ballots (allowing a chance to prove poll-worker error and have the vote counted) and all other provisional ballots (not), the court inquired whether state interests justified the preferential treatment. The State—by now seeking to vacate the consent decree—offered none, and the court agreed, finding “[t]here is no reason for treating provisional ballots differently based on the type of identification used.” (Id. at 49.)
4. Due Process: Wrong-Precinct Ballots Caused by Poll-Worker Error
Last, the court adopted dicta from the post-remand judgment in the Hunter litigation that Ohio‘s strict disqualification of deficient ballots, regardless of poll-worker error, rendered the election system “fundamentally unfair,” in violation of due process. See Hunter v. Hamilton Cnty. Bd. of Elections, 850 F.Supp.2d 795, 847 (S.D.Ohio 2012). Relying on the same evidence discussed in the equal protection claims, the district court found a strong likelihood that the SEIU plaintiffs would prevail on the due process claim.
5. Injunctive Relief & Staying the NEOCH Plaintiffs’ Motion to Modify the Consent Decree
Having found a likelihood of success on the merits of these claims, the district court determined that the equitable factors favored the issuance of a preliminary injunction. Accordingly, the court granted a preliminary injunction requiring the counting of wrong-precinct and deficient-affirmation provisional ballots, unless the State could prove that the poll worker properly advised the voter to cast the ballot in the correct precinct and the voter refused. Having granted the broader relief of the preliminary injunction in the SEIU litigation, the district court stayed the NEOCH plaintiffs’ motion to expand the consent decree in the NEOCH litigation, deeming that issue moot so long as the preliminary injunction remained in effect.
The Secretary now appeals the deficient-affirmation aspect of the preliminary injunction, and the State intervenes to appeal the wrong-precinct remedy.3 The Citizens Reform Association of Cuyahoga County and individual voters appear as
II. SCOPE OF PRELIMINARY INJUNCTION: THE WRONG-PRECINCT REMEDY
Before we may assess the propriety of the preliminary injunction, we must resolve a dispute over the scope of its relief for wrong-precinct ballots. The district court‘s plenary opinion and order required the Secretary to instruct Ohio‘s county election boards not to reject provisional ballots “cast ... in the wrong precinct, unless the poll worker who processed the voter‘s provisional ballot” directed the voter to the correct precinct, informed the voter of the ramifications of casting a wrong-precinct vote (disqualification), and the voter nevertheless insisted on casting the ballot in the wrong precinct. (Plenary Op. & Order at 56-57.) The SEIU appellees read this remedy to apply to all wrong-precinct ballots, regardless of whether the voter cast his or her ballot at the correct polling location. The State counters that the remedy applies only to provisional ballots cast at the correct polling place, citing the district court‘s later clarifying orders. The Secretary, who does not appeal this aspect of the preliminary injunction, ostensibly adopted the State‘s position on the scope of the preliminary injunction in Directive Number 2012-44, noting that the injunction‘s wrong-precinct remedy applied only to “ballots cast in the correct polling place but wrong precinct.” See SOS Directive No. 2012-44 (referring to the affected ballots as “Right Church/Wrong Pew” ballots). With one small caveat, we agree with the State.
The State correctly notes that significant portions of the district court‘s opinion specifically address the right-place/wrong-precinct problem. For instance, the district court‘s burden analysis cites statistics for right-place/wrong-precinct provisional ballots cast during the 2011 general election, concluding that “[t]here is, then, a high statistical probability that in the upcoming election thousands of lawfully-registered voters will arrive at the correct polling place only to receive a provisional ballot from the poll worker for the wrong precinct.” (Plenary Op. & Order at 26.)5 Elsewhere, the court states that “[t]he evidence further confirms that, of the thousands of rejected wrong-precinct/correct location provisional ballots, the vast majority will be disqualified as a result of poll-worker error.” (Id. at 28-29.) And later on in its invidiousness analysis, the court notes that “[t]he Plaintiffs sue on behalf of registered voters who arrive in the correct polling place, and only through an intervening error violate the precinct requirement.” (Id. at 41.)
Two additional pieces of extrinsic evidence support this view. First, the district court issued three post-injunction orders—two scheduling orders and an order granting the State‘s motion to intervene—that characterized the preliminary injunction‘s wrong-precinct remedy as extending no further than ballots miscast from the correct polling place. Second, the SEIU appellees conceded at oral argument that they never sought to have wrong-county provisional ballots counted, but that would be the practical effect of granting their interpretation of the district court‘s wrong-precinct remedy.
Rather than presume the district court intended a “vote anywhere” remedy, we take the court at its word that it considered the constitutionality of the State‘s disqualification of right-place/wrong-precinct provisional ballots. We therefore read the district court‘s wrong-precinct remedy to encompass only those votes. Consequently, our remaining discussion of wrong-precinct ballots and the wrong-precinct remedy addresses only right-place/wrong-precinct provisional ballots.6
We do note, however, that the State‘s interpretation fails to account for provisional ballots cast at the county boards of election. Because Ohio law authorizes the casting of provisional ballots at the county boards, see
III. THE PRELIMINARY INJUNCTION (Appeal 12-4069)
A. Standard of Review
Our review focuses on the four factors a plaintiff must establish to receive injunctive relief:
Notes
whether the movant has a strong likelihood of success on the merits; - whether the movant would suffer irreparable injury without the injunction;
- whether issuance of the injunction would cause substantial harm to others; and
- whether the public interest would be served by the issuance of the injunction.
Hunter, 635 F.3d at 233 (quoting Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 542 (6th Cir.2007)). At the preliminary injunction stage, “a plaintiff must show more than a mere possibility of success,” but need not “prove his case in full.” Certified Restoration Dry Cleaning Network, 511 F.3d at 543 (citations omitted). “[I]t is ordinarily sufficient if the plaintiff has raised questions going to the merits so serious, substantial, difficult, and doubtful as to make them a fair ground for litigation and thus for more deliberate investigation.” Six Clinics Holding Corp., II v. Cafcomp Sys., Inc., 119 F.3d 393, 402 (6th Cir.1997) (citation omitted).
The State argues for a higher evidentiary burden, characterizing the SEIU plaintiffs’ claims as presenting only a facial attack on
Though we consider the ultimate decision to issue the injunction under a deferential abuse-of-discretion standard, we assess the underlying legal conclusions de novo and factual findings for clear error. Obama for America v. Husted, 697 F.3d 423, 428 (6th Cir.2012). Consequently, we give fresh review to the district court‘s legal conclusions regarding a plaintiff‘s likelihood of success on the merits. Id. at 428; Hunter, 635 F.3d at 233. An injunction “will seldom be disturbed unless the district court relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard.” Mascio v. Pub. Emps. Ret. Sys. of Ohio, 160 F.3d 310, 312 (6th Cir.1998).
B. The Wrong-Precinct Ballots
1. Likelihood of Success on the Merits
The district court identified three strands of likely constitutional violations related to the wrong-precinct ballots as requiring injunctive relief: the unreasonableness and fundamental unfairness of disqualifying wrong-precinct ballots caused by poll-worker error (equal protection and due process), and the disparate treatment of deficient provisional ballots under the consent decree (equal protection). Having reviewed the record afresh, we agree on all counts.
a. Equal Protection & Disqualification Despite Poll-Worker Error
Our Constitution accords special protection for the fundamental right of voting, Harper, 383 U.S. at 670, recognizing its essential role in the “preservati[on] of all rights,” Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). Because “[o]ther rights, even the most basic, are illusory if the right to vote is undermined,” Wesberry v. Sanders, 376 U.S. 1, 17 (1964), “[t]he right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise,” League of Women Voters v. Brunner, 548 F.3d 463, 477 (6th Cir.2008) (quoting Bush v. Gore, 531 U.S. 98, 104 (2000)). At the same time, the Constitution vests states with the authority to prescribe “[t]he Times, Places and Manner of holding Elections for Senators and Representatives.”
While a rational basis standard applies to state regulations that do not burden the fundamental right to vote, strict scrutiny applies when a state‘s restriction imposes “severe” burdens. Id. (citing McDonald v. Bd. of Election Comm‘rs, 394 U.S. 802, 807-09 (1969) and Burdick, 504 U.S. at 434). For the majority of cases falling between these extremes, we apply the “flexible” Anderson/Burdick balancing test. Id.; see also Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 189-91 (2008) (Stevens, J., joined by Roberts, C.J., and Kennedy, J., announcing the judgment of the Court); id. at 211 (Souter, J., joined by Ginsburg, J., dissenting).
The State defendant, intervening as appellant, resists this standard, arguing that Ohio‘s automatic-disqualification rule for wrong-precinct ballots treats all voters equally and therefore does not “involve any classification that could violate the equal protection standard.” But the State overlooks the fact that a clear majority of the Supreme Court in Crawford applied some form of Burdick‘s burden-measuring equal protection standard to Indiana‘s facially neutral voter-identification requirement. See 553 U.S. at 189-91 (Stevens, J., announcing the judgment of the Court), 204 (Scalia, J., joined by Alito and Thomas, JJ., concurring in the judgment) (“To evaluate a law respecting the right to vote—whether it governs voter qualifications, candidate selection, or the voting process—we use the approach set out in Burdick....“), 211 (Souter, J., dissenting). Because the SEIU plaintiffs “demonstrated that their right to vote is burdened by” Ohio‘s law that rejects wrong-precinct ballots regardless of poll-worker error, “[t]he Anderson-Burdick standard ... applies.” Obama for America, 697 F.3d at 430 (rejecting Ohio‘s attempt to limit the Anderson/Burdick test to First Amendment free association claims and Fourteenth Amendment due process claims).
Following the Anderson/Burdick test, [we] must weigh “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate” against “the precise interests put forward by the State as justifications for the burden imposed by
i. The Burden on Provisional Voters
Here, the district court identified a substantial burden on provisional voters. The court‘s factual findings detail Ohio‘s “systemic” disqualification of thousands of wrong-precinct provisional ballots and a strong likelihood that the majority of these miscast votes result from poll-worker error. To recap, Ohio tossed out more than 14,000 wrong-precinct ballots in 2008 and 11,000 more in 2010, with such rejections occurring across the state. And in the mid-cycle election of 2011, Ohio disqualified more than 1,800 right-place/wrong-precinct ballots—1,500 fewer than it would have rejected in the absence of NEOCH consent decree.7 Like the Secretary before the district court, the State intervening as appellant does not contest the accuracy of this data, but emphasizes that wrong-precinct ballots make up a small percentage of the total votes cast. (State Br. at 12 (explaining that wrong-precinct ballots made up 0.248% of the ballots cast in the 2008 election, with right-place/wrong-precinct ballots comprising an even smaller share).)
Though the district court did not make specific factual findings regarding the incidence of poll-worker error, it found such error evident in poll workers’ statutory duty to direct voters to the correct polling place. See
In addition to these findings, the SEIU plaintiffs presented voluminous evidence ranging from misunderstanding counties’ precinct location guides to failing to understand the vote-disqualifying ramifications of handing out wrong-precinct ballots. This recent sample of Franklin County‘s precinct location guide, which shows how different house numbers on the same street end up in different precincts, almost at random, demonstrates how easily poll workers can make mistakes under the pressures of election day.
POLL LOCATION STREET GUIDE
PRINTED 01/30/2012 8:58:48 AM
| STREET NAME.... | HOUSE RANGE | CITY | PRECINCT |
| NORTHWAY | 100 ALL TO 129 BLACKLICK, 43004 | JEFFERSON-E | |
| NORTHWAY | 5371 ODD TO 5875 BLACKLICK, 43004 | DUB 46-B | |
| NORTHCT | 6712 EVEN TO 6762 COLUMBUS, 43229 | COLS 53-C | |
| NORTHDR | 6712 ALL TO 6768 REYNOLDSBURG, 43068 | REYNS 1-A | |
| NORTHST | 100 ALL TO 299 BLACKLICK, 43004 | JEFFERSON-E | |
| NORTHST | 1 ODD TO 99 COLUMBUS, 43202 | COLS 30-B | |
| NORTHST | 2 EVEN TO 100 COLUMBUS, 43202 | COLS 30-B | |
| NORTHST | 0 ALL TO 99 DUBLIN, 43017 | DUB 2-A | |
| NORTHST | 789 ALL TO 141 GAHANNA, 43230 | GAH 2-D | |
| NORTHST | 5473 ODD TO 5673 GAHANNA, 43230 | COLS 46-B | |
| NORTHST | 8501 ALL TO 8549 GALLOWAY, 43119 | PRAIRIE E | |
| NORTHST | 5700 ALL TO 6299 HILLIARD, 43026 | HILL 1-F | |
| NORTHST | 1 ODD TO 199 WESTERVILLE, 43081 | WESTERVILLE 3-H | |
| NORTHST | 2 EVEN TO 200 WESTERVILLE, 43081 | WESTERVILLE 2-F | |
| E NORTHST | 1 ODD TO 197 WORTHINGTON, 43085 | WORTH 4-A | |
| E NORTHST | 2 EVEN TO 194 WORTHINGTON, 43085 | WORTH 4-A | |
| E NORTHST | 156 EVEN TO 505 WORTHINGTON, 43085 | WORTH 4-B | |
| E NORTHST | 150 ODD TO 181 WORTHINGTON, 43085 | WORTH 4-A | |
| E NORTHST | 201 ODD TO 385 WORTHINGTON, 43085 | WORTH 2-B | |
| W NORTHST | 0 ALL TO 191 WORTHINGTON, 43085 | WORTH 1-B |
(R. 13-12 at 9.) The Secretary failed to present evidence to the district court that other factors besides poll-worker error caused wrong-precinct ballots, and the State offers none now. Given this record and the clear legal duty imposed on poll workers by Ohio law, the district court deduced:
As a matter of law, if a person casts a provisional ballot in the wrong precinct, it is always going to be due to poll-worker error unless the poll worker has instructed the individual where the correct polling location is and that individual “refuses to travel to the polling place for the correct [precinct] or to the office of the board of elections to cast a ballot.”
Ohio Rev.Code §§ 3505.181(C)(2) ,181(E)(1) . Such an act would be an irrational and futile exercise by the voter, because, as required byOhio Rev.Code § 3505.181(C)(1) , the poll worker must first inform him that if he insists on voting in the wrong precinct, his ballot will not be counted.
(Plenary Op. & Order at 8.) Because the State offers no evidence of alternative
The application of
ii. The State‘s Interests: Sandusky Factors
Faced with this burden on voters, the State falls back on the same Sandusky factors rejected by the district court. First, the State objects to the district court‘s conclusion that the first Sandusky factor—capping the number of voters at a polling place—does not support disqualifying right-place/wrong-precinct ballots. We find no error here. By definition, right-place/wrong-precinct ballots are cast at the right polling location, demonstrating that these voters attempted to comply with the State‘s precinct requirement. Of course, if a recalcitrant voter insists on casting a wrong-precinct ballot after making the effort to arrive at the correct polling place, the State would have a strong interest in rejecting that non-compliant vote. But the State offers no evidence or logical support for this phenomenon, while the SEIU plaintiffs provided substantial evidence of poll-worker error.
As for the second and third Sandusky factors, the State argues that it has a strong interest in limiting precinct ballots to eligible races, which facilitates the ad-
Turning to the fourth Sandusky factor, the State claims that the district court‘s remedy makes it more difficult to monitor the voting process and prevent election fraud. According to the State, moving toward a system in which (absent new and affirmative evidentiary “verification” actions by the boards) the total potential number of provisional ballots that must be counted is not capped by reference to the number of registered voters assigned to a given precinct, or capable of estimation at any time until after the polls have closed would, almost by definition, make it more difficult for elections officials to monitor and keep up with the voting process. (State Br. at 50.) Not only will the injunction make it more difficult to administer the election on election day, the State argues, but it will make it more difficult for the State to comply with the federal safe harbor deadline for Presidential electors, December 11, 2012. See
First, the record does not support the State‘s fear that the district court‘s limited remedy will increase the number of voters attempting to cast votes at the wrong polling location or facilitating voter fraud. Barring substantial numbers of recalcitrant voters insisting on casting wrong-precinct votes—again, a phenomenon not supported by the record or logic—the district court‘s limited remedy should not burden poll workers with longer lines or tax county boards with an unmanageable number of ballot verifications after election day. Second, neither the State nor amici present evidence that county boards err in remaking wrong-precinct ballots to count only votes in “up-ballot” races, despite the fact that county boards have followed the practice since the adoption of the consent decree in April 2010. The State‘s chief election official, who adopted Directive No. 2012-44 and Form 12-D, apparently believes that poll workers and county boards can both implement the district court‘s injunctive relief and perform their other election duties within the time allotted.
In sum, while the Sandusky factors reflect a state‘s legitimate interests in maintaining a precinct-based election system, the State does not show how these interests support the specific restriction challenged here: the summary rejection of poll-worker-induced right-place/wrong-precinct ballots. Because the State fails to identify precise interests justifying this substantial burden, we agree with the district court that the SEIU plaintiffs have shown a likely equal protection violation.
b. Due Process & Disqualification Despite Poll-Worker Error
The voter burden identified by the SEIU plaintiffs likewise supports the district court‘s finding of a probable due process violation. The Due Process Clause protects against extraordinary voting restrictions that render the voting system “fundamentally unfair.” See, e.g., Warf v. Bd. of Elections of Green Cnty., Ky., 619 F.3d 553, 559 (6th Cir.2010); League of Women Voters, 548 F.3d at 478. “[G]arden variety election irregularities” do not rise to that level, Griffin v. Burns, 570 F.2d 1065, 1076 (1st Cir.1978), but substantial changes to state election procedures and/or the implementation of non-uniform standards run afoul of due process if they “result in significant disenfranchisement and vote dilution,” Warf, 619 F.3d at 559 (citations omitted). So too do state actions that induce voters to miscast their votes. Griffin, 570 F.2d at 1074, 1078-79 (finding that Rhode Island‘s post-election invalidation of absentee ballots violated due process, because voters relied on state directives allowing such ballots); Hoblock v. Albany Cnty. Bd. of Elections, 487 F.Supp.2d 90, 97 (N.D.N.Y.2006).
Although this issue was not ripe at the time, Hunter expressed “substantial constitutional concerns regarding the invalidation of votes cast in the wrong precinct due solely to poll-worker error.” 635 F.3d at 243.
Ohio has created a system in which state actors (poll workers) are given the ultimate responsibility of directing voters to the right location to vote. Yet, the state law penalizes the voter when a poll worker directs the voter to the wrong precinct, and the penalty, disenfranchisement, is a harsh one indeed. To disenfranchise citizens whose only error was relying on poll-worker instructions appears to us to be fundamentally unfair. Cf. [Purcell v. Gonzalez, 549 U.S. 1, 4 (2006)] (“[T]he possibility that qualified voters might be turned away from the polls would caution any district judge to give careful consideration to the plaintiffs’ challenges.“).
Id. at 243. The SEIU plaintiffs have shown, and the State does not deny, that poll-worker error causes thousands of qualified voters to cast wrong-precinct ballots from the correct polling locations.
Even so, the State argues that a due process violation requires intentional conduct. See, e.g., Shannon v. Jacobowitz, 394 F.3d 90, 96 (2nd Cir.2005). It appears we have not opined on the scienter necessary for a voting restriction to violate due process, see League of Women Voters, 548 F.3d at 476 (declining to decide the scienter requirement for a voting restriction to violate equal protection), 478 (finding, at the
c. Equal Protection & Consent Decree‘s Non-Uniform Standards
We next address the consent decree‘s differential treatment of provisional ballots depending on the form of identification used by the voters. As the district court explained, the Ohio Revised Code rejects all wrong-precinct ballots, but the consent decree provides a remedy only for SSN-4 voters. For those SSN-4 voters who later show that poll-worker error caused their wrong precinct or deficient-affirmation vote, the consent decree saves their ballots from rejection. A provisional voter using any other form of identification (e.g., current photo identification, copy of current utility bill, paycheck) receives no such reprieve.
Both the State and the SEIU plaintiffs addressed this issue before the district court. In arguing for an expansion of the consent decree, the SEIU plaintiffs objected to its “arbitrary and unequal counting and rejecting of the ballots of lawfully registered Ohio voters.” (SEIU Pls.’ Second Am. Compl. ¶ 94; Mot. Prelim. Inj. at 31.) The Secretary similarly acknowledged this equal protection problem in the consent decree, but argued that “it‘s equally plausible to say that the proper remedy is to treat everybody the same and do away with the NEOCH decree.” (R. 69, Tr. Oral Arg. at 58:11-17.) Though both parties continue to recognize this equal protection problem, they disagree on a fix. The NEOCH plaintiffs likewise recognized this problem when they moved the district court to expand the consent decree to avoid constitutional infirmity.
We agree with all of the parties and the district court that the consent decree likely violates the equal protection principle recognized in Bush v. Gore. “[A] citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.” Dunn v. Blumstein, 405 U.S. 330, 336 (1972). “Having 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, 531 U.S. at 104-05. It appears to us that the consent decree does just that.
Our Hunter case noted a similar equal protection problem with this consent decree. There, the Hamilton County elections board “considered evidence of poll-worker error with respect to some ballots cast in the wrong precinct but not other similarly situated ballots when it evaluated which ballots to count.” Hunter, 635 F.3d at 238. Hunter recognized the possibility that Hamilton County‘s treatment of provisional ballots under the consent decree could create a statewide equal protection problem, but limited its analysis to the county-based equal protection claim brought by the parties. See id. at 241-42.
Here, the SEIU plaintiffs’ equal protection claim squarely raises the statewide disparity inherent in the terms of the consent decree: its preferential treatment of SSN-4 provisional ballots. (SEIU Pls.’ Second Am. Compl. ¶ 94.) Consistent with Hunter, we join the parties and the district court in finding that the consent decree‘s different treatment of similarly situated provisional ballots likely violates equal protection.
2. Irreparable Injury, Substantial Harm to Others, Public Interest
Turning to the equitable considerations, the State does not contest the district court‘s core findings of irreparable harm to the voter and absence of harm to others. Rather, it offers only vague public-interest concerns, speculating that the injunction will spawn additional poll-worker error, vote dilution, and post-election litigation. As we explained in rejecting the CRACC amici‘s vote-dilution argument, the record does not support the fear that county boards will err in remaking wrong-precinct ballots by improperly counting ineligible “down ballot” votes. Nor do we anticipate that the injunction‘s narrow remedy—saving “up-ballot” votes from poll-worker-induced wrong-precinct ballots—will spur a mountain of post-election litigation. The State has not shown that the district court abused its discretion in weighing the equitable considerations.
Nor has the State shown abuse in the district court‘s fashioning of injunctive relief tailored to the identified harm. The State would disqualify thousands of right-place/wrong-precinct provisional ballots, where the voter‘s only mistake was relying on the poll-worker‘s precinct guidance. That path unjustifiably burdens these voters’ fundamental right to vote. Recognizing that a prospective remedy could not undo all of the harm occasioned by poll-worker error, the district court crafted a narrow remedy that preserves as much of a miscast ballot as possible. The Secretary has now adopted regulations implementing the district court‘s limited remedy for right-place/wrong-precinct provisional ballots. See SOS Directive 2012-44 & Form 12-D. These regulations enable the State to identify and document recalcitrant voters that disregard poll-workers’ precinct instructions, so that these provisional ballots can be excluded. Because the State offers no persuasive reason to disturb the district court‘s remedy, as implemented by the Secretary, we affirm the wrong-precinct aspect of the preliminary injunction.
C. The Deficient-Affirmation Ballots
The district court identified only one probable constitutional violation as supporting the injunction‘s deficient-affirmation remedy: the unreasonableness of disqualifying deficient-affirmation ballots caused by poll-worker error, in derogation of equal protection. Because the spotty record and Ohio law do not support the district court‘s presumption of poll-worker error, we find no likely constitutional violation and reverse this aspect of the preliminary injunction.
The district court‘s opinion suffers from two presumptions not supported by the record: (1) that the absence of legitimate state interests overcomes any difficulty “quantify[ing] the precise magnitude of the burden imposed by [Ohio‘s] restriction on the class of affected voters,” and (2) that state law requires poll-workers to ensure that provisional voters properly complete ballot affirmations. (Plenary Op. & Order at 44.) The district court‘s minimal findings on this count reflect that Ohio rejected 568 provisional ballots in 2011 due to technical deficiencies appearing in the ballot affirmations, but do not specify which of these ballots suffered from which deficiencies. To be sure, the SEIU plaintiffs grouped a variety of voter-penned errors in support of this claim—e.g., missing, misplaced, and non-matching signatures, and failure to include a printed name.
In our view, the difficulty in measuring the voter burden imposed by the ballot-affirmation requirement stems from the fact that all of the identified deficiencies arise from voters’ failure to follow the form‘s rather simple instructions: (1) print
During oral argument, the SEIU appellees conceded that Ohio‘s ballot-affirmation requirement imposes a lesser burden on voters than Ohio‘s precinct requirement. In light of Ohio‘s similar signature requirements for casting regular ballots with proper identification, absentee ballots, and issue petitions, see
IV. THE CONSENT DECREE (Appeal 12-3916)
A. Applicability of Rule 60(b)
Ohio and the Secretary argue that
Ohio and the Secretary argue that if a consent decree requires a state to take actions that violate state law, and no predicate federal constitutional violation has been established,
Although they do not acknowledge it, Ohio and the Secretary make an argument properly characterized as falling under
that the consent decree was flawed “when it was entered.” (Appellant‘s Br. at 27.) Nonetheless, they agreed to and were signatories to the consent decree and did not begin challenging it as “void” until more than a year after the fact. “Where, as here, a party [has notice of a violation of law enshrined in a final judgment] and fails to object to [it] before the time for appeal expires, that party has been afforded a full and fair opportunity to litigate, and the party‘s failure to avail itself of that opportunity will not justify
The consent decree provides that “[a]ny of the parties may file a motion with the Court to modify, extend or terminate this Decree for good cause shown.” (Consent Decree at V(¶ 11).) Ohio and the Secretary argue that this clause constitutes a “waiver” of the strictures of
The consent decree explains that it is “final and binding among and between [the parties] as to the issues raised in the Plaintiffs’ Complaint and Supplemental Complaint, and the matters resolved in this Decree.” (Consent Decree, preamble.) Nonetheless, Ohio and the Secretary argue that this court‘s recent opinion in NEOCH v. Husted, 695 F.3d 563 (6th Cir. 2012), establishes that the consent decree is not a “final judgment” subject to
B. Analysis Under Rule 60(b)
Having rejected the objections to
Rufo does not support Ohio and the Secretary‘s argument. First, Rufo dealt specifically with the issue of clarifying decisions of federal law, not state law, which is the only legal change asserted in No. 12-3916. Second, Ohio and the Secretary have conceded that, at best, Painter merely clarified preexisting Ohio law. Rufo is limited to genuinely unanticipated circumstances. Id. at 384 (“[M]odification should not be granted where a party relies upon events that actually were anticipated at the time it entered into a decree.“). Third, Rufo acknowledged that parties can and do “settle ... dispute[s] over the proper remedy for ... constitutional violations that had been found by undertaking to do more than the Constitution itself requires,” and that allowing the modification of decrees whenever “a clarification in the law” comes about would greatly “undermine the finality of such agreements” and “serve as a disincentive to negotiation of settlements in institutional reform litigation.” Id. at 388-89; see also Northridge Church, 647 F.3d at 613-14 (“[
Moreover, even taking into account the arguments raised in the reply brief, Ohio and the Secretary have not carried their burden on two other aspects of the Rufo test recognized by this circuit. In addition to a “significant change in circumstances,” the moving party must show that the consent decree is “onerous,” “unworkable,” or “detrimental to the public interest.” Heath v. DeCourcy, 992 F.2d 630, 635 (6th Cir.1993). Furthermore, if changes are anticipated, as they appeared to be in this case, the party seeking to modify the decree must show that the original decree was agreed to in good faith, that reasonable efforts at compliance were made, and that it ought to be relieved of its obligations. Id. Ohio and the Secretary have not attempted to make these showings, much less carry their burden on them. Accordingly, the district court did not abuse its discretion in refusing to modify the consent decree under
C. Remaining Issues with Consent Decree
Before concluding, we note some additional issues our ruling creates that must be resolved. While we have set aside the
In the order on appeal in No. 12-4069, the district court held that the discrepancy the consent decree creates between different sets of provisional ballots formed an alternate justification for the preliminary injunction. Both Ohio and the Plaintiffs attempted to leverage this ruling on appeal in No. 12-4069 by arguing that either none or all of these ballots ought to be counted, respectively. But the district court has never ruled on this argument in the context of a request to modify or vacate the consent decree. The NEOCH Plaintiffs did make a motion to this effect in the district court, but it was stayed pending this appeal. Moreover, the discrepancy between deficient-affirmation ballots for the November 2012 election is entirely a creature of this court‘s decisions, and has never been considered by the district court. Because the district court has not had an opportunity to address these issues, and decisions to modify consent decrees are generally left to the discretion of the trial court, the proper course is to remand this case so that the parties, by proper motion or agreement, may address the issue in the district court. Ohio, which has the most to lose by a remand, suggested such relief would be appropriate on appeal if such a finding were made. (Ohio Br., No. 12-4069, at 32 (“[I]f [the court] finds that the Decree creates a constitutional violation, it can note that as a holding, leaving the district court on remand to address that.“).)
V. CONCLUSION
For the above reasons, we AFFIRM IN PART and REVERSE IN PART the district court‘s preliminary injunction in appeal 12-4069. Specifically, the preliminary injunction‘s wrong-precinct remedy is AFFIRMED, and the deficient-affirmation remedy is REVERSED. The district court‘s judgment in No. 12-3916 is AFFIRMED, and the matter is REMANDED for further proceedings.
William BERRINGTON, Plaintiff-Appellant, v. WAL-MART STORES, INC., Defendant-Appellee.
No. 11-1988
United States Court of Appeals, Sixth Circuit
Aug. 30, 2012.