Obama for America v. Jon Husted , 697 F.3d 423 ( 2012 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0356p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
-
OBAMA FOR AMERICA; DEMOCRATIC
-
NATIONAL COMMITTEE; OHIO DEMOCRATIC
PARTY, -
Plaintiffs-Appellees, -
Nos. 12-4055/4076
,
>
-
-
v.
-
-
JON HUSTED, Ohio Secretary of State; MIKE
-
Defendants-Appellants (12-4055), -
DEWINE, Ohio Attorney General,
-
-
-
NATIONAL GUARD ASSOCIATION OF THE
UNITED STATES, et al. -
Intervenor Defendants-Appellants (12-4076). N
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:12-cv-00636—Peter C. Economus, District Judge.
Decided and Filed: October 5, 2012
Before: CLAY and WHITE, Circuit Judges; HOOD, District Judge.*
_________________
COUNSEL
ON BRIEF: William S. Consovoy, Elbert Lin, Brendan J. Morrissey, J. Michael
Connolly, WILEY REIN LLP, Washington, D.C., Richard N. Coglianese, Michael J.
Schuler, Lindsay M. Sestile, OHIO ATTORNEY GENERAL’S OFFICE, Columbus,
Ohio, for Appellants in 12-4055. James M. Dickerson, BINGHAM GREENEBAUM
DOLL LLP, Cincinnati, Ohio, for Appellants in 12-4076. Donald J. McTigue, Mark A.
McGinnis, J. Corey Colombo, McTIGUE & McGINNIS LLC, Columbus, Ohio, Robert
F. Bauer, PERKINS COIE, Washington, D.C., Jennifer Katzman, OBAMA FOR
AMERICA, Chicago, Illinois, for Appellees. Lawrence J. Joseph, Washington, D.C.,
Jay Alan Sekulow, AMERICAN CENTER FOR LAW & JUSTICE, Washington, D.C.,
Joseph E. Sandler, Elizabeth F. Getman, SANDLER, REIFF, YOUNG & LAMB, P.C.,
Washington, D.C., Paul J. Gains, MAHONING COUNTY BOARD OF COUNTY
*
The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
1
Nos. 12-4055/4076 Obama for America, et al. v. Jon Husted, et al. Page 2
COMMISSIONERS, Youngstown, Ohio, Stephen D. Hartman, KERGER &
HARTMAN, LLC, Toledo, Ohio, KATHLEEN M. CLYDE, Kent, Ohio, for Amici
Curiae.
CLAY, J., delivered the opinion of the court, in which HOOD, D. J., joined.
WHITE, J. (pp. 21-29), delivered a separate opinion concurring in part and dissenting
in part.
_________________
OPINION
_________________
CLAY, Circuit Judge. Defendants Jon Husted, the Secretary of State of Ohio,
and Mike DeWine, the Attorney General of Ohio (collectively the “State”), joined by
Intervenors representing numerous military service associations (“Intervenors”), appeal
from the district court’s order granting Plaintiffs’ motion for a preliminary injunction.
The district court enjoined the State from enforcing Ohio Rev. Code § 3509.03 to the
extent that it prevents some Ohio voters from casting in-person early ballots during the
three days before the November 2012 election on the basis that the statute violates the
Equal Protection Clause of the Fourteenth Amendment. For the reasons set forth below,
we AFFIRM the district court’s order granting the preliminary injunction.
BACKGROUND
I. Procedural History
On July 17, 2012, Plaintiffs Obama for America, the Democratic National
Committee, and the Ohio Democratic Party filed a complaint in district court against Jon
Husted, in his official capacity as Secretary of State of Ohio, and Mike DeWine, in his
official capacity as Attorney General of Ohio. Plaintiffs alleged that Ohio Rev. Code
§ 3509.03 was unconstitutional insofar as it imposes on non-military voters a deadline
of 6:00 p.m. on the Friday before Election Day for in-person early voting.1 On the same
1
All references to the election or Election Day refer to the November 6, 2012 election. The three-
day period prior to Election Day specifically refers to Saturday, November 3, 2012; Sunday, November
4, 2012; and Monday, November 5, 2012. “Military and overseas voters” are those voters identified in the
Nos. 12-4055/4076 Obama for America, et al. v. Jon Husted, et al. Page 3
day, Plaintiffs moved for a preliminary injunction preventing the statute’s enforcement.
They argued that the relevant statutory provisions “burden the fundamental right to vote
but are not necessary to any sufficiently weighty state interest.” (R. 2, at 2.)
On August 1, 2012, numerous military service associations filed a motion to
intervene, and the district court granted the motion. The State and Intervenors opposed
Plaintiffs’ motion for a preliminary injunction. They argued that the State’s interest in
providing military voters with added in-person early voting time and the burden on local
boards of elections of providing that same extra time for all voters justified imposing a
different deadline on military and overseas voters than all other voters.
The district court conducted a hearing on Plaintiffs’ motion on August 15, 2012.
The parties filed numerous exhibits, including legislative history, declarations of career
military officers and voting experts, and statistical and demographic studies by various
governmental agencies and non-governmental organizations. On August 31, 2012, the
district court issued an opinion and order granting Plaintiffs’ motion for a preliminary
injunction. The district court concluded that § 3509.03 violated the Equal Protection
Clause to the extent that it set a different in-person early voting deadline for non-military
voters because “the State’s interests are insufficiently weighty to justify the injury to
Plaintiffs.” ___ F. Supp. 2d ___, No. 2:12-cv-00636, 2012 WL 3765060, at *10 (S.D.
Ohio Aug. 31, 2012). The district court enjoined the enforcement of § 3509.03 and
ordered that in-person early voting be available to non-military voters on the same terms
as before the enactment of Amended Substitute House Bill 224 and Substitute Senate
Bill 295. Id. at 22–23. The preliminary injunction ensures that all Ohio voters—military,
overseas, and non-military—are afforded the same opportunity for in-person early voting
that was available to them prior to the enactment of § 3509.03.
federal Uniformed and Overseas Citizens Absentee Voting Act of 1986, 42 U.S.C. § 1973ff (“UOCAVA”),
as amended by the Military and Overseas Voter Empowerment Act, Pub. L. 111-84, 123 Stat. 2190 (2009)
(“MOVE Act”), and corresponding sections of the Ohio Election Code, Ohio Rev. Code § 3511.01. “Non-
military voters” are all other eligible voters.
Nos. 12-4055/4076 Obama for America, et al. v. Jon Husted, et al. Page 4
The State and Intervenors now appeal the district court’s order granting a
preliminary injunction. On September 12, 2012, the district court denied the State’s
motion to stay its order pending appeal, and the preliminary injunction remains in effect.
II. Facts
A. In-Person Early Voting in Ohio
Ohio introduced in-person early voting largely in response to the myriad
problems faced by voters during the 2004 election. During that election, Ohio voters
faced long lines and wait-times that, at some polling places, stretched into the early
morning of the following day. To prevent similar problems from disenfranchising voters
in the future and to ease the strain of accommodating all voters on a single day, the State
established no-fault absentee voting in October 2005. The new rules eliminated the need
for absentee voters to have an excuse for not voting on election day. See 2005 Ohio
Laws 40 (Sub. H.B. 234). After the creation of in-person early voting, any registered
voter could cast an absentee ballot at the appropriate board of elections office through
the Monday before the election. See id. (amending Ohio Rev. Code
§§ 3509.02–3509.04).
The evidence considered by the district court showed that a large number of Ohio
voters chose to utilize the new early voting procedures in elections from 2006 through
2010. Early voting peaked during the 2008 election, when approximately 1.7 million
Ohioans cast their ballots before election day, amounting to 20.7% of registered voters
and 29.7% of the total votes cast. In Ohio’s twelve largest counties, approximately
340,000 voters, or about 9% of the total votes cast in those counties, chose to vote early
at a local board of elections office. Using data from seven of Ohio’s largest counties,
one study projected that, in 2008, approximately 105,000 Ohioans cast their ballots in
person during the final three days before the election. In 2010, approximately 1 million
Ohioans voted early, and 17.8% of them chose to cast their ballots in person. In a poll
conducted after the 2010 election, 29.6% of early voters reported voting within one week
of election day.
Nos. 12-4055/4076 Obama for America, et al. v. Jon Husted, et al. Page 5
Voters who chose to cast their ballots early tended to be members of different
demographic groups than those who voted on election day. Early voters were “more
likely than election-day voters to be women, older, and of lower income and education
attainment.” (R. 34-31, Pls.’ Ex. 27, at 1.) Data from Cuyahoga and Franklin Counties
suggests that early voters were disproportionately African-American and that a large
majority of early in-person votes (82% in Franklin County) were cast after hours on
weekdays, on the weekend, or on the Monday before the election.
B. Legislative Changes to In-Person Early Voting
On July 1, 2011, Ohio Governor John Kasich signed Amended Substitute House
Bill 194, an omnibus bill that made broad changes to Ohio election law. Among other
things, the Ohio legislature apparently intended to change the deadlines for in-person
early voting from the Monday before the election to 6:00 p.m. on the Friday before the
election. Instead, H.B. 194 created two separate and contradictory deadlines: one on
Friday and one on Monday. For non-military voters, Ohio Rev. Code § 3509.03
contained the former Monday deadline, but an amended § 3509.01 imposed the new
Friday deadline. Military and overseas voters found themselves in much the same
position, with § 3511.02 containing the former deadline, and an amended § 3511.10
containing the new one.
In an attempt to correct its mistake, the Ohio General Assembly passed Amended
Substitute House Bill 224, which became effective on October 27, 2011. H.B. 224 fixed
the inconsistent deadlines in § 3509.03 and § 3511.02, changing the deadlines for all
voters to 6:00 p.m. on the Friday before the election. Before the technical corrections
in H.B. 224 could take effect, however, a petition with more than 300,000 signatures was
filed to put the omnibus election law, H.B. 194, to a referendum. The referendum
petition was certified by the Secretary of State on December 9, 2011, and pursuant to the
Ohio Constitution, the implementation of H.B. 194 was suspended for the 2012 election
cycle.
On May 8, 2012, the General Assembly repealed the then-suspended H.B. 194
through Substitute Senate Bill 295. However, neither the organizers of the referendum
Nos. 12-4055/4076 Obama for America, et al. v. Jon Husted, et al. Page 6
petition nor the Ohio legislature thought to attack or repeal the bill containing the
technical changes, H.B. 224, which remained in effect. Therefore, even though the
original bill, H.B. 194, was repealed, the technical changes contained in H.B. 224
remained in place, and Ohio voters were still left with inconsistent deadlines. Non-
military voters could cast ballots in-person until 6:00 p.m. on the Friday before the
election. But military and overseas voters had two deadlines: Friday at 6:00 p.m.
pursuant to § 3511.02, and the close of the polls on election day pursuant to § 3511.10.
In order to correct this confusion, Defendant Husted construed the statute to
apply the more generous deadline contained in § 3511.10 to military and overseas voters.
Attempts by local boards of elections to provide in-person early voting to non-military
voters through the Monday before the election were denied by the Secretary of State on
the grounds that the statute does not permit it. On August 15, 2012, Defendant Husted
issued Directive 2012-35, instructing the local boards of election that they were to
maintain regular business hours between October 2, 2012 and November 2, 2012. This
directive eliminated the local boards’ discretion to be open on weekends during that
period. Between October 2, 2012 and October 19, 2012, the boards must close at 5:00
p.m. During the last two weeks of the election, the boards will remain open until 7:00
p.m. but may not remain open afterwards or on the weekends. The directive does not
address office hours on the final three-day period before Election Day, when, according
to the statute, only military and overseas voters can cast ballots in person.
DISCUSSION
I. Standard of Review
We review a district court’s grant of a preliminary injunction for an abuse of
discretion. Chabad of S. Ohio & Congregation Lubavitch v. City of Cincinnati, 363 F.3d
427, 432 (6th Cir. 2004). While the ultimate decision to grant or deny a preliminary
injunction is reviewed for an abuse of discretion, we review the district court’s legal
conclusions de novo and its factual findings for clear error. Hunter v. Hamilton Cnty.
Bd. of Elections, 635 F.3d 219, 233 (6th Cir. 2011). “This standard of review is ‘highly
Nos. 12-4055/4076 Obama for America, et al. v. Jon Husted, et al. Page 7
deferential’ to the district court’s decision.” Id. (quoting Certified Restoration Dry
Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 541 (6th Cir. 2007)). “The
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).
“A plaintiff seeking a preliminary injunction must establish that he is likely to
succeed on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of the equities tips in his favor, and that an injunction
is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20
(2008). The district court’s determination that a plaintiff is likely to succeed on the
merits is a question of law that we review de novo. Hunter, 635 F.3d at 233.
II. Likelihood of Succeed on the Merits
A. Equal Protection in the Voting Context
The right to vote is a “precious” and “fundamental” right. Harper v. Va. State Bd.
of Elections, 383 U.S. 663, 670 (1966). “Other rights, even the most basic, are illusory
if the right to vote is undermined.” Wesburry v. Sanders, 376 U.S. 1, 17 (1964); see also
Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) (finding that the right to vote is
“preservative of all rights”). “‘The 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)). “[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; see also
Wesburry, 376 U.S. at 17 (“Our Constitution leaves no room for classification of people
in a way that unnecessarily abridges [the right to vote.]”).
Nos. 12-4055/4076 Obama for America, et al. v. Jon Husted, et al. Page 8
The Equal Protection Clause applies when a state either classifies voters in
disparate ways, see Bush, 531 U.S. at 104–05 (arbitrary and disparate treatment of votes
violates equal protection), or places restrictions on the right to vote, see League of
Women Voters, 548 F.3d at 478 (voting system that burdens the exercise of the right to
vote violates equal protection). The precise character of the state’s action and the nature
of the burden on voters will determine the appropriate equal protection standard. See
Biener v. Cailo, 361 F.3d 206, 214 (3d Cir. 2004) (“The scrutiny test depends on the
[regulation’s] effect on [the plaintiff’s] rights.”).
If a plaintiff alleges only that a state treated him or her differently than similarly
situated voters, without a corresponding burden on the fundamental right to vote, a
straightforward rational basis standard of review should be used. See McDonald v. Bd.
of Election Comm’rs, 394 U.S. 802, 807–09 (1969) (applying rational basis to a state
statute that prohibited plaintiffs’ access to absentee ballots where no burden on the right
to vote was shown); Biener, 361 F.3d at 214–15 (applying rational basis where there was
no showing of an “infringement on the fundamental right to vote”). On the other
extreme, when a state’s classification “severely” burdens the fundamental right to vote,
as with poll taxes, strict scrutiny is the appropriate standard. Burdick v. Takushi, 504
U.S. 428, 434 (1992); see also Harper, 383 U.S. at 670 (“We have long been mindful
that where fundamental rights and liberties are asserted under the Equal Protection
Clause, classifications which might invade or restrain them must be closely scrutinized
and carefully confined.”).
Most cases fall in between these two extremes. When a plaintiff alleges that a
state has burdened voting rights through the disparate treatment of voters, we review the
claim using the “flexible standard” outlined in Anderson v. Celebrezze, 460 U.S. 780
(1983), and Burdick v. Takushi, 504 U.S. 428 (1992). See Hunter, 635 F.3d at 238
(applying Anderson-Burdick balancing in an equal protection challenge to the counting
of provisional ballots). Although Anderson and Burdick were both ballot-access cases,
the Supreme Court has confirmed their vitality in a much broader range of voting rights
contexts. See Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 204 (Scalia, J.,
Nos. 12-4055/4076 Obama for America, et al. v. Jon Husted, et al. Page 9
concurring.) (“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 . . . .”). The Burdick Court stated the standard as follows:
A court considering a challenge to a state election law 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 its rule,” taking into
consideration “the extent to which those interests make it necessary to
burden the plaintiffs’ rights.”
Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789)). This standard is
sufficiently flexible to accommodate the complexities of state election regulations while
also protecting the fundamental importance of the right to vote. There is no “litmus test”
to separate valid from invalid voting regulations; courts must weigh the burden on voters
against the state’s asserted justifications and “make the ‘hard judgment’ that our
adversary system demands.” Crawford, 553 U.S. at 190 (Stevens, J., announcing the
judgment of the Court).
The district court applied the Anderson-Burdick standard and ultimately
concluded that the justifications proffered by the State were insufficient to outweigh the
burden on Plaintiffs’ voting rights. Instead of the Anderson-Burdick standard, the State
and Intervenors urge us to apply a rational basis standard of review to the early voting
restriction at issue. Because Plaintiffs’ complaint alleges a straightforward equal
protection violation, they argue, a straightforward equal protection analysis should
follow. However, when a state regulation is found to treat voters differently in a way that
burdens the fundamental right to vote, the Anderson-Burdick standard applies. See
Hunter, 635 F.3d at 238; see also Clements v. Fashing, 457 U.S. 957, 965 (1982)
(rejecting the assertion that traditional equal protection principles should automatically
apply in the voting rights context “without first examining the nature of the interests that
are affected and the extent of the burden”).
The State and Intervenors argue that the Anderson-Burdick standard is applicable
only when a state regulation is alleged to have violated the free association and due
Nos. 12-4055/4076 Obama for America, et al. v. Jon Husted, et al. Page 10
process guarantees of the First and Fourteenth Amendments, not when a plaintiff alleges
only an equal protection violation. The State seeks to disconnect and isolate these areas
of constitutional law as they apply to voting rights, but its approach would create
inflexible doctrinal silos. The Supreme Court in Anderson explicitly imported the
analysis used in equal protection cases to evaluate voting rights challenges brought under
the First Amendment, see Anderson, 460 U.S. at 786 n.7, thus creating a single standard
for evaluating challenges to voting restrictions.2 The Supreme Court confirmed this
approach in Crawford by directly connecting its equal protection voting rights
jurisprudence in Harper v. Va. State Bd. of Elections, 383 U.S. 663 (1966), with
Anderson and Burdick, and finally applying the standard derived from those cases to a
state statute allegedly burdening the right to vote. See Crawford, 553 U.S. 181, 189–91.
Plaintiffs have demonstrated that their right to vote is unjustifiably burdened by the
changes in Ohio’s early voting regime.3 The Anderson-Burdick standard therefore
applies.
The State relies heavily on McDonald v. Bd. of Election Comm’rs, 394 U.S. 802
(1969), for the proposition that rational basis is the appropriate standard when a state
denies absentee ballots to some citizens and not others. In McDonald, unsentenced
Illinois inmates were denied access to absentee ballots because they were not among the
categories of voters that were provided those ballots under Illinois law. Id. at 803. The
Court applied a rational basis standard of review, reasoning that the state had not
classified the inmates based on race or wealth, nor was there any evidence “in the record
2
The Anderson Court stated that it based its “conclusions directly on the First and Fourteenth
Amendments” and did not “engage in a separate Equal Protection Clause analysis.” Anderson, 460 U.S.
at 786 n.7. The Court did not need to conduct a separate equal protection analysis because it had already
incorporated that analysis into its new “flexible standard.” The Court continued, “We rely, however, on
the analysis in a number of our prior election cases resting on the Equal Protection Clause of the
Fourteenth Amendment.” Id. (citing Williams v. Rhodes, 393 U.S. 23 (1968); Bullock v. Carter, 405 U.S.
134 (1972); Lubin v. Panish, 415 U.S. 709 (1974); Ill. Elections Bd. v. Socialist Workers Party, 440 U.S.
173 (1979)).
3
Plaintiffs’ complaint alleges that the State’s disparate treatment of non-military voters burdens
their fundamental right to vote, and that this burden violates equal protection. (See R. 1, Pls.’ Compl., at
¶¶ 6, 12.) The State would presumably agree that if Plaintiffs had challenged the restriction based solely
on the First Amendment, the Anderson-Burdick standard would apply. The State cannot escape that
standard by asserting that not only does the restriction burden Plaintiffs’ right to vote, but it also does so
disparately.
Nos. 12-4055/4076 Obama for America, et al. v. Jon Husted, et al. Page 11
to indicate that the Illinois statutory scheme has an impact on appellants’ ability to
exercise the fundamental right to vote.” Id. at 807. The Court found no fundamental
right to receive an absentee ballot as such, and stated, “[W]e cannot lightly assume, with
nothing in the record to support such an assumption, that Illinois has in fact precluded
appellants from voting.” Id. at 808. The McDonald plaintiffs failed to make out a claim
for heightened scrutiny because they had presented no evidence to support their
allegation that they were being prevented from voting. See O’Brien v. Skinner, 414 U.S.
524, 529 (1974) (“Essentially the Court’s disposition of the claims in McDonald rested
on failure of proof.”); Goosby v. Osser, 409 U.S. 512, 520–22 (finding that McDonald
itself suggested a different result if plaintiffs had presented evidence that the state was
effectively preventing them from voting).
On the contrary, Plaintiffs introduced extensive evidence that a significant
number of Ohio voters will in fact be precluded from voting without the additional three
days of in-person early voting. (See, e.g., R. 34-32, Pls.’ Ex. 28, at 2.) The district court
credited statistical studies that estimated approximately 100,000 Ohio voters would
choose to vote during the three-day period before Election Day, and that these voters are
disproportionately “women, older, and of lower income and education attainment.”
2012 WL 3765060, at *3. The district court concluded that the burden on Plaintiffs was
“particularly high” because their members, supporters, and constituents represent a large
percentage of those who participated in early voting in past elections. Id. at 15. The
State did not dispute the evidence presented by Plaintiffs, nor did it offer any evidence
to contradict the district court’s findings of fact. Id. Plaintiffs did not need to show that
they were legally prohibited from voting, but only that “burdened voters have few
alternate means of access to the ballot.” Citizens for Legislative Choice v. Miller, 144
F.3d 916, 921 (6th Cir. 1998) (citing Burdick, 504 U.S. at 436–37).
The State argues that the burden on non-military voters is slight because they
have “ample” other means to cast their ballots, including by requesting and mailing an
absentee ballot, voting in person prior to the final weekend before Election Day, or on
Election Day itself. However, the district court concluded that because early voters have
Nos. 12-4055/4076 Obama for America, et al. v. Jon Husted, et al. Page 12
disproportionately lower incomes and less education than election day voters, and
because all evening and weekend voting hours prior to the final weekend were
eliminated by Directive 2012-35, “thousands of voters who would have voted during
those three days will not be able to exercise their right to cast a vote in person.” 2012
WL 3765060, at *7. Based on the evidence in the record, this conclusion was not clearly
erroneous. Because the district court found that Plaintiffs’ right to vote was burdened,
it properly applied the Anderson-Burdick standard.4 Therefore, if Plaintiffs can show
that the State’s burden on their voting rights is not sufficiently justified, they are likely
to succeed on their claim that the State has violated the Equal Protection Clause.
B. Ohio’s Justifications
The State offers two justifications for eliminating in-person early voting for non-
military voters during the three days before Election Day. First, it asserts that local
county boards of elections are too busy preparing for Election Day to accommodate early
voters after 6:00 p.m. on the Friday before the election. Second, the State claims that the
unique challenges faced by military service members and their families justify
maintaining in-person early voting for them but not for other Ohio voters.
The State correctly argues that its two justifications are relevant to two separate
aspects of the equal protection analysis: the first justification—the burden on local
boards of elections—should be considered in relation to the State’s restriction of voting
rights, while the second justification—the need to accommodate military voters and their
families—should be considered in relation to the State’s disparate treatment of military
and non-military voters. See State’s Br. 46 n.3. These two strands are part of the same
equal protection analysis. If the State merely placed “nonsevere, nondiscriminatory
restrictions” on all voters, the restrictions would survive if they could be sufficiently
justified. See Crawford, 553 U.S. at 190 (discussing the application of the Anderson-
4
Intervenors cite to several cases purportedly applying a rational basis standard to similar
election regulations, but these cases were either decided before Anderson and Burdick, see, e.g., Prigmore
v. Renfro, 356 F. Supp. 427 (N.D. Ala. 1972), or dealt with generally applicable, nondiscriminatory
election regulations, see Gustafson v. Ill. State Bd. of Elections, No. 06-C-1159, 2007 WL 2892667 (N.D.
Ill. Sept. 30, 2007).
Nos. 12-4055/4076 Obama for America, et al. v. Jon Husted, et al. Page 13
Burdick standard to “reasonable, nondiscriminatory restrictions”). On the other hand,
if the State merely classified voters disparately but placed no restrictions on their right
to vote, the classification would survive if it had a rational basis. See McDonald, 394
U.S. at 807–09 (applying rational basis review where no burden on the right to vote was
shown). However, the State has done both; it has classified voters disparately and has
burdened their right to vote. Therefore, both justifications proffered by the State must
be examined to determine whether the challenged statutory scheme violates equal
protection. We will address each proposed justification in turn.
1. Burden on Local Boards of Elections
The State contends that halting in-person early voting at 6:00 p.m. on the Friday
before the election is necessary to give local county boards of elections enough time to
prepare for Election Day. The State introduced the affidavit of Deputy Assistant
Secretary of State Matthew Damschroder, who explained the myriad tasks that the
boards must complete during the Saturday, Sunday, and Monday before the election.
Among these duties are: (1) validating, scanning, and tabulating absentee ballots that
have been cast in-person or received by mail prior to the final weekend, (2) securing all
the necessary ballots, instruction cards, registration forms, and other materials for use
by voters, (3) ensuring that each polling place has the proper voting equipment, tables,
chairs, and signs, (4) ensuring that each polling place is accessible and making any
temporary improvements that are necessary, such as installing ramps, (5) preparing the
official lists of registered voters, including notations for those voters who have already
requested absentee ballots, and (6) handling any last-minute issues that arise, including
moving polling places and replacing poll workers who are suddenly unable to serve. (See
R. 35-9, Defs.’ Ex. 8, at 3.)
Granted, the list of responsibilities of the boards of elections is long, and the staff
and volunteers who prepare for and administer elections undoubtedly have much to
accomplish during the final few days before the election. But the State has shown no
evidence indicating how this election will be more onerous than the numerous other
elections that have been successfully administered in Ohio since early voting was put
Nos. 12-4055/4076 Obama for America, et al. v. Jon Husted, et al. Page 14
into place in 2005. During that time, the Ohio boards of elections have effectively
conducted a presidential election and a gubernatorial election, not to mention many other
statewide and local elections, all while simultaneously handling in-person early voting
during the three days prior to the election. The State has not shown that any problems
arose as a result of the added responsibilities of administering early voting, and in fact,
it seems that one of the primary motivations behind instituting early voting was to
relieve local boards of the strain caused by all voters casting their ballots on a single day.
See League of Women Voters, 548 F.3d at 477–78 (describing the many problems faced
by voters during the November 2004 election in Ohio, including extremely long lines
and wait-times on Election Day).
The district court considered evidence from several of Ohio’s counties that
contradicts the State’s assertions. Ohio’s most populous county, Cuyahoga County,
asserted that maintaining in-person early voting would actually alleviate some of its
burden by spreading out the demand for voting over more days, thus reducing lines and
wait times at polling places on Election Day. Further evidence showed that several more
Ohio counties have already allocated funding for early voting, thus allaying concerns
about the financial hardship that early voting might cause. While these counties cannot
speak for all of Ohio’s counties, the State introduced no specific evidence to refute any
of their assertions, nor has it suggested that the experience of these counties is unique.
Under the Anderson-Burdick standard, we must weigh “the character and
magnitude of the asserted injury” against the “precise interests put forward by the State
. . . taking into consideration the extent to which those interests make it necessary to
burden the plaintiff’s rights.” Burdick, 504 U.S. at 434 (emphasis added). The State
must propose an “interest sufficiently weighty to justify the limitation.” Norman v.
Reed, 502 U.S. 279, 288–89 (1992). The burden on Plaintiffs’ voting rights is surely
real, as the district court found, but the elimination of in-person early voting during the
three-day period prior to the election does not absolutely prohibit early voters from
voting. However, because early voters tend to be members of demographic groups that
may be unable to vote on Election Day or during the workday at local boards of elections
Nos. 12-4055/4076 Obama for America, et al. v. Jon Husted, et al. Page 15
because of work schedules, their ability to cast a ballot is impeded by Ohio’s statutory
scheme.6 The burden on non-military Ohio voters is not severe, but neither is it slight.
The State’s proffered interest in smooth election administration must be
“sufficiently weighty” to justify the elimination of in-person early voting for non-
military voters during the three-day period in question. If the State had enacted a
generally applicable, nondiscriminatory voting regulation that limited in-person early
voting for all Ohio voters, its “important regulatory interests” would likely be sufficient
to justify the restriction. See Burdick, 504 U.S. at 434. However, Ohio’s statutory
scheme is not generally applicable to all voters, nor is the State’s justification
sufficiently “important” to excuse the discriminatory burden it has placed on some but
not all Ohio voters. The State advances only a vague interest in the smooth functioning
of local boards of elections. The State simply indicates that allowing in-person early
voting, as was done in the past, “could make it much more difficult for the boards of
elections to prepare for Election Day.” (R. 35-9, Defs.’ Ex. 8, at 3 (emphasis added).)
With no evidence that local boards of elections have struggled to cope with early voting
in the past, no evidence that they may struggle to do so during the November 2012
election, and faced with several of those very local boards in opposition to its claims, the
State has not shown that its regulatory interest in smooth election administration is
“important,” much less “sufficiently weighty” to justify the burden it has placed on non-
military Ohio voters.
2. Unique Challenges to Military Service Members and Their
Families
The State’s asserted goal of accommodating the unique situation of members of
the military, who may be called away at a moment’s notice in service to the nation, is
certainly a worthy and commendable goal. However, while there is a compelling reason
to provide more opportunities for military voters to cast their ballots, there is no
6
The Equal Protection Clause permits states to enact neutrally applicable laws, even if the impact
of those laws falls disproportionately on a subset of the population. See, e.g., Crawford, 553 U.S. at 207
(Scalia, J., concurring) (citing Washington v. Davis, 426 U.S. 229, 248 (1976)). However, Ohio’s statutory
scheme is self-evidently not neutrally applicable; it restricts the rights of some voters and not others.
Nos. 12-4055/4076 Obama for America, et al. v. Jon Husted, et al. Page 16
corresponding satisfactory reason to prevent non-military voters from casting their
ballots as well.
Federal and state law makes numerous exceptions and special accommodations
for members of the military, within the voting context and without, and no one argues
that these exceptions are somehow constitutionally suspect. By and large, these statutes
and regulations—from UOCAVA and the MOVE Act to the Uniformed Services
Employment and Reemployment Act—are based on highly relevant distinctions between
service members and the civilian population, and they confer benefits accordingly. For
example, UOCAVA’s accommodations for military and overseas voters are based almost
entirely on the difficulties that arise from being physically located outside the United
States. To address communication difficulties, Ohio law permits absent military and
overseas voters to request an absentee ballot by mail, fax, email, or in person, while
other voters may only do so by mail or in person. Ohio Rev. Code. §§ 3509.03, 3509.05,
3511.04. To account for inconsistencies and delays in foreign mail systems, UOCAVA,
as amended by the MOVE Act, requires states to provide absentee ballots to absent
military and overseas voters at least 45 days prior to an election. 42 U.S.C. § 1973ff-
1(a)(8). These special accommodations are tailored to address the problems that arise
from being overseas.
Providing more time for military and overseas voters to cast their ballots in-
person is not a response to the problem of these voters being absent, because absent
voters obviously cannot cast ballots in person. Rather, the State argues that these voters
need more time to vote early because they could be called away from the jurisdiction in
an emergency with little notice. (See R. 35-8, Defs.’ Ex. 7; R. 35-10, Defs.’ Ex. 9.) We
acknowledge the difficult circumstances of members of the military and their families,
who constantly face the possibility of a sudden and unexpected deployment, and we
admire their dedication and sacrifice. For that reason, Ohio’s commitment to providing
as many opportunities as possible for service members and their families to vote early
is laudable. However, the State has offered no justification for not providing similarly
situated voters those same opportunities. See S.S. v. E. Ky. Univ., 532 F.3d 445, 457 (6th
Nos. 12-4055/4076 Obama for America, et al. v. Jon Husted, et al. Page 17
Cir. 2008) (“In essence, a State must ‘treat similarly situated individuals in a similar
manner.’” (quoting Buchanan v. City of Bolivar, 99 F.3d 1352, 1360 (6th Cir. 1996)).
The State asserts that military and overseas voters are not similarly situated to
other Ohio voters for equal protection purposes. “The Equal Protection Clause does not
forbid classifications. It simply keeps governmental decisionmakers from treating
differently persons who are in all relevant respects alike.” Nordlinger v. Hahn, 505
U.S. 1, 10 (1992) (emphasis added); see also TriHealth, Inc. v. Bd. of Comm’rs, 430
F.3d 783, 790 (6th Cir. 2005) (finding that two groups of hospitals were not similarly
situated for equal protection purposes because “they differ[ed] in several material
respects”). In many respects, absent military and overseas voters are not similarly
situated to other Ohio voters. Typically, their absence from the country is the factor that
makes them distinct, and this is reflected in the exceptions and special accommodations
afforded to these voters under federal and state law.
With respect to in-person early voting, however, there is no relevant distinction
between the two groups. The State argues that military voters need extra early voting
time because they could be suddenly deployed. But any voter could be suddenly called
away and prevented from voting on Election Day. At any time, personal contingencies
like medical emergencies or sudden business trips could arise, and police officers,
firefighters and other first responders could be suddenly called to serve at a moment’s
notice. There is no reason to provide these voters with fewer opportunities to vote than
military voters, particularly when there is no evidence that local boards of elections will
be unable to cope with more early voters. While we readily acknowledge the need to
provide military voters more time to vote, we see no corresponding justification for
giving others less time.
The State and Intervenors worry about the logical extensions and practical
implications of Plaintiffs’ position. If states are forced to provide the same
accommodations to every voter that they currently provide to military and overseas
voters, such as added flexibility and extra time, states may simply eliminate these special
accommodations altogether. (See R. 35-10, Defs.’ Ex. 9, at 5.) However, virtually all
Nos. 12-4055/4076 Obama for America, et al. v. Jon Husted, et al. Page 18
of the special voting provisions in federal and Ohio law address problems that arise
when military and overseas voters are absent from their voting jurisdictions. See Doe
v. Walker, 746 F. Supp. 2d 667, 670–71 (D. Md. 2010) (describing the purpose of the
MOVE Act as facilitating the receiving and sending of absentee ballots from overseas).
They are not similarly situated to all other voters in this respect, and states are justified
in accommodating their particular needs. With respect to in-person voting, the two
groups are similarly situated, and the State has not shown that it would be burdensome
to extend early voting to all voters. Its argument to the contrary is not borne out by the
evidence. See supra Part II.B.1.
Equally worrisome would be the result if states were permitted to pick and
choose among groups of similarly situated voters to dole out special voting privileges.
Partisan state legislatures could give extra early voting time to groups that traditionally
support the party in power and impose corresponding burdens on the other party’s core
constituents. See Clingman v. Beaver, 544 U.S. 581, 603 (2005) (O’Connor, J.,
concurring) (“[P]articularly where [voting restrictions] have discriminatory effects, there
is increasing cause for concern that those in power may be using electoral rules to erect
barriers to electoral competition.”). To avoid this dangerous result, courts must carefully
weigh the asserted injury against the “precise interests” proffered by the State. Burdick,
504 U.S. at 434. Although the State argues that it has justifiably given more early voting
time to military and overseas voters, in fact, the time available to those voters has not
changed and will not be affected by the district court’s order. Rather, the State must
show that its decision to reduce the early voting time of non-military voters is justified
by a “sufficiently weighty” interest. The State has proposed no interest which would
justify reducing the opportunity to vote by a considerable segment of the voting
population.
Having found that neither interest proposed by the State is sufficient to justify
the limitation on in-person early voting imposed on all non-military Ohio voters, we find
that Plaintiffs are likely to succeed on their claim that Ohio Rev. Code § 3509.03, as
implemented by the Ohio Secretary of State, violates the Equal Protection Clause.
Nos. 12-4055/4076 Obama for America, et al. v. Jon Husted, et al. Page 19
III. Equitable Factors
When a party seeks a preliminary injunction on the basis of a potential
constitutional violation, “the likelihood of success on the merits often will be the
determinative factor.” Jones v. Caruso, 569 F.3d 258, 265 (6th Cir. 2009). We have
concluded that Plaintiffs are likely to succeed on the merits of their equal protection
challenge, but we nevertheless address the remaining three factors of the preliminary
injunction test. “A plaintiff seeking a preliminary injunction must establish that he is
likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence
of preliminary relief, that the balance of equities tips in his favor, and that an injunction
is in the public interest.” Winter, 555 U.S. at 20. The equitable factors of the
preliminary injunction test also weigh in favor of granting the preliminary injunction.
Plaintiffs, their members and constituents, and all non-military Ohio voters
would be irreparably injured absent a preliminary injunction. “A plaintiff’s harm from
the denial of a preliminary injunction is irreparable if it is not fully compensable by
monetary damages.” Tenke Corp., 511 F.3d at 550. When constitutional rights are
threatened or impaired, irreparable injury is presumed. See ACLU of Ky. v. McCreary
County, Ky., 354 F.3d 438, 445 (6th Cir. 2003). A restriction on the fundamental right
to vote therefore constitutes irreparable injury. See Williams v. Salerno, 792 F.2d 323,
326 (2d Cir. 1986) (finding that the denial of the right to vote is “irreparable harm”).
The balance of equities and the public interest also weigh in Plaintiff’s favor.
The burden on non-military Ohio voters’ ability to cast ballots, particularly when many
of those voters will likely be unable to vote on Election Day or during the day at local
boards of elections because of work schedules, outweighs any corresponding burden on
the State, which has not shown that local boards will be unable to cope with three extra
days of in-person early voting—as they have successfully done in past elections. While
states have “a strong interest in their ability to enforce state election law requirements,”
Hunter, 635 F.3d at 244, the public has a “strong interest in exercising the ‘fundamental
political right’ to vote.” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (quoting Dunn, 405
U.S. at 336). “That interest is best served by favoring enfranchisement and ensuring that
Nos. 12-4055/4076 Obama for America, et al. v. Jon Husted, et al. Page 20
qualified voters’ exercise of their right to vote is successful.” Hunter, 635 F.3d at 244.
The public interest therefore favors permitting as many qualified voters to vote as
possible. Because the district court properly found that the equitable factors favor
Plaintiffs, its decision to issue a preliminary injunction was appropriate.
IV. District Court’s Remedy
The State argues that the district court’s remedy was overbroad because it could
be read to affirmatively require the State to mandate early voting hours during the three-
day period prior to the election. We do not read the district court’s order in this way.
The order clearly restores the status quo ante, returning discretion to local boards of
elections to allow all Ohio voters to vote during Saturday, November 3, 2012; Sunday,
November 4, 2012; and Monday, November 5, 2012. Because Ohio Rev. Code
§ 3509.03 is unconstitutional to the extent that it prohibits non-military voters from
voting during this period, the State is enjoined from preventing those voters from
participating in early voting. But the State is not affirmatively required to order the
boards to be open for early voting. Under the district court’s order, the boards have
discretion, just as they had before the enactment of § 3509.03. The district court’s
remedy was therefore appropriate.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s order granting a
preliminary injunction.
Nos. 12-4055/4076 Obama for America, et al. v. Jon Husted, et al. Page 21
__________________________________________________
CONCURRING IN PART, DISSENTING IN PART
__________________________________________________
HELENE N. WHITE, Circuit Judge (concurring in part and dissenting in part).
Except with respect to the remedy, I join in the affirmance but arrive there by a different
route.
I
First, I think it clear that the elimination of non-UOCAVA voters’ access to in-
person absentee ballots after 6 p.m. the Friday before the election was not a fluke, but
rather the considered intent of a majority of Ohio’s legislators.
A
In enacting H.B. 1941 and H.B. 2242 the Ohio General Assembly attempted to
treat all voters equally by imposing a uniform in-person absentee-voter deadline. H.B.
194 included a new section, 3509.01(B)(3),3 imposing the 6 p.m. Friday deadline for in-
person absentee voters, but neglected to amend parallel sections 3509.03(I) and
3511.02(C)(12), which permitted non-UOCAVA and UOCAVA voters to obtain and
submit in-person absentee ballots at their local election boards until the close of regular
business the day before election day (PID 418-19, 421, 436). The prior statute also
contained a provision that applied only to UOCAVA voters, section 3511.10, allowing
them to obtain and vote by in-person absentee ballot until the polls close on election day.
The legislature apparently caught this provision, and amended that section in H.B. 194,
placing UOCAVA voters on the same footing as non-UOCAVA voters by allowing them
in-person absentee-voting “during the time that absent voter’s ballots may be cast in
person before an election.” (PID 441) After the legislature realized that it had failed to
1
Amended Substitute House Bill Number 194, 2011 Ohio Laws 40.
2
Amended Substitute House Bill Number 224, 2011 Ohio Laws 46.
3
Ohio Rev. Code § 3509.01(B)(3).
Nos. 12-4055/4076 Obama for America, et al. v. Jon Husted, et al. Page 22
amend existing provisions that permitted voters to obtain and vote by in-person absentee
ballots through the Monday before election day, it passed H.B. 224 by unanimous vote
and amended sections 3509.03(I) and 3511.02(C)(12) to make all deadlines uniform
(PID 580, 590, 974, 993). Thus, the combined effect of H.B. 194 and H.B. 224 was to
eliminate weekend voting for everyone; the only difference between UOCAVA and non-
UOCAVA voters was that for non-UOCAVA voters only one section of the prior law
required amendment, and for UOCAVA voters two sections required amendment, one
of which was amended by H.B. 194 and the other by H.B. 224. When H.B. 194 was
stayed by the referendum certification and later repealed by S.B. 295,4 the provision of
H.B. 194 that added the Friday 6 p.m. deadline was no longer effective, but the original
versions of sections 3509.03(I) and 3511.02(C)(12) had been amended by H.B. 224 to
reflect the Friday deadline, and the effect of that statute was not suspended. Further, the
amendment to section 3511.10 that had made UOCAVA absentee-voting hours
consistent with the new Friday deadline was also suspended, resulting in the
reinstatement of the language allowing UOCAVA absentee-voting through election day
and a conflict between the two provisions relating to UOCAVA voters — the original
version providing for in-person absentee voting until the polls close, and the H.B. 224
deadline that corresponded to the same H.B. 224 non-UOCAVA deadline of 6 p.m.
Friday (PID 791-93, 804-05, 809-10).
When considering H.B. 295, the legislature understood that sections 3509.03(I)
and 3511.02(C)(12) had been amended by H.B. 224, not H.B. 194, and debated whether
to repeal H.B. 224 as well. The vote was divided along party lines. Thus,
notwithstanding assertions to the contrary, there is no question that the failure to repeal
H.B. 224 at the same time H.B. 194 was repealed was not inadvertent. That is, the
legislature knew that the net effect of repealing H.B. 194 and enacting S.B. 295 would
be that the Friday deadlines of H.B. 224 would survive the repeal of H.B. 194. It is less
clear, however, whether the legislature was aware that another provision of the former
statute, section 3511.10, had not been amended by H.B. 224, but by H.B. 194, and
4
Substitute Senate Bill Number 295, 2012 Ohio Laws 105.
Nos. 12-4055/4076 Obama for America, et al. v. Jon Husted, et al. Page 23
therefore that provision would continue in its unamended state and provide for a
conflicting end-of-election-day deadline for in-person absentee voting by UOCAVA
voters (PID 809-10).
B
Section 3509.03(I) ends in-person non-UOCAVA absentee voting at 6 p.m. the
Friday before election day. It is silent regarding all other hours and days for in-person
absentee voting once voting begins, except that section 3501.10(B) requires election
offices to remain open until 9 p.m. on the last day of registration. The statute does not
prohibit a county board of elections from permitting in-person absentee voting in the
evenings or during the weekends preceding the final pre-election-day weekend.
Nevertheless, Secretary Husted issued a directive setting mandatory hours and
forbidding local elections offices from maintaining night and weekend hours for non-
UOCAVA voters.5 This directive is incorporated in the voting restrictions plaintiffs
challenge and the court ruled unconstitutional. Therefore, I consider both section
3509.03(I) and the Secretary’s directive in considering the burden on non-UOCAVA
voters.
II
There is no constitutional right to an absentee ballot. This is made clear in
McDonald v. Board of Election Commissioners, 394 U.S. 802 (1969), Prigmore v.
Renfro, 356 F. Supp. 427 (N.D. Ala. 1972), summ. aff’d, 410 U.S. 919 (1973), O’Brien
v. Skinner, 414 U.S. 524 (1974), and Goosby v. Osser, 409 U.S. 512 (1973). The
5
Secretary Husted directed all counties to adopt the following regular business hours:
• 8:00 a.m. to 5:00 p.m., Tuesday through Friday, from October 2, 2012 through October 5, 2012;
• 8:00 a.m. to 9:00 p.m., Tuesday, October 9, 2012; [mandated by Section 3501.10(B)]
• 8:00 a.m. to 5:00 p.m., Wednesday through Friday, from October 10, 2012 through October 12, 2012;
• 8:00 a.m. to 5:00 p.m., Monday through Friday, from October 15, 2012 through October 19, 2012;
• 8:00 a.m. to 7:00 p.m., Monday through Friday, from October 22, 2012 through October 26, 2012;
• 8:00 a.m. to 7:00 p.m., Monday through Thursday, [from] October 29, 2012 through November 1, 2012;
and
• 8:00 a.m. to 6:00 p.m., Friday, November 2, 2012.
Directive 2012-35 (PID 1481) (internal footnotes omitted). Any voter in line at the end of these regular
business hours must be permitted to make his or her application and vote. Id.
Nos. 12-4055/4076 Obama for America, et al. v. Jon Husted, et al. Page 24
Constitution protects the right to vote, and it is only when there is no alternative vehicle
for voting that the Supreme Court has found a right to an absentee ballot. Compare
Skinner, 414 U.S. at 529-31 and Goosby, 409 U.S. at 519-23 with McDonald, 394 U.S.
at 807-09 and Prigmore, 356 F. Supp. 427. These absentee-ballot cases applied the
rational-basis test to claims of entitlement to an absentee ballot as well as to equal
protection challenges based on differentiations between voters with regard to absentee
ballots, and recognized the state interest in regulating elections. One may
understandably ask, then, how Ohio’s restrictions on in-person absentee voting can
violate the Constitution. For me, the answer is that the Supreme Court has since applied
the Anderson/Burdick6 balancing test in evaluating a state’s interest in the regulation of
elections, and that in applying that test, it is proper to look at the facts on the ground in
Ohio.
III
The instant case raises several preliminary questions that affect the result. The
first is which standard governs our consideration of plaintiffs’ claims—the rational-basis
test employed in the absentee-ballot cases, or the more recent Anderson/Burdick
balancing test, which weighs the burden on the right to vote against the state’s important
regulatory interests. The Supreme Court has not decided an absentee-ballot case since
the Anderson/Burdick test was announced, but two circuit courts have, and both applied
the balancing test. In Price v. New York State Board of Elections, 540 F.3d 101 (2d Cir.
2008), the Second Circuit considered a challenge to New York statutes that permitted
absentee voting in all elections except county party committee elections. The court
rejected New York’s argument that rational-basis review should apply, analyzed the case
under Anderson/Burdick, and found New York’s interests did not justify the burden on
voters. Price, 540 F.3d at 107-12. In Griffin v. Roupas, 385 F.3d 1128 (7th Cir. 2004),
the Seventh Circuit considered a challenge brought by Illinois working mothers who
asserted a constitutional right to vote by absentee ballot (or some other alternative
means) on the same basis as other voters who were granted the right to vote by absentee
6
Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992).
Nos. 12-4055/4076 Obama for America, et al. v. Jon Husted, et al. Page 25
ballot because, like the other voters, they too had great difficulty voting between 6 a.m.
and 7 p.m. on election day. Although the court denied the challenge, it applied the
Anderson/Burdick balancing test. See Griffin, 385 F.3d at 1130-33.
Thus, I agree with the district court and the majority that the Anderson/Burdick
balancing test is, indeed, the proper test. The Supreme Court has applied this test in its
election jurisprudence since Anderson, see, e.g., Crawford v. Marion Cnty. Election Bd.,
553 U.S. 181 (2008), and the test is flexible enough to approximate the rational-basis test
when appropriate, i.e., where the burden is slight, the required showing by the state is
correspondingly light.
IV
In applying this balancing test, I cannot agree with the majority’s assertion that
“Plaintiffs introduced extensive evidence that a significant number of Ohio voters will
in fact be precluded from voting without the additional three days of in-person early
voting. (See, e.g., R. 34-32, Pls.’ Ex.28, at 2.)” Maj. Op. at 11. If that were in fact the
case, this would be a simple matter. The burden would be great and the rationales
offered by Ohio, which are plausible and rational on their face but find little support in
the record, would not outweigh the burden on those precluded from exercising their right
to vote. However, though the record clearly establishes that a significant number of
Ohio voters found it most convenient to vote after hours and the weekend before the
election, the study did not consider the extent to which these voters would or could avail
themselves of other voting options, either by mail ballot or in-person absentee ballot at
other times, or in-person voting on election day (PID 1053-54). Convenience cannot be
equated with necessity without more. Thus, it cannot be fairly said that there was
evidence that a significant number of Ohio voters will be precluded from voting unless
weekend and after-hours voting is restored.
Nevertheless, the burden may be substantial without being preclusive. A report
by the Franklin County Board of Elections concluded that in-person early voting
accounted for 9 percent of all ballots cast in the 2008 election, that a disproportionately
higher number of African-Americans voted early and, most significantly, that 82 percent
Nos. 12-4055/4076 Obama for America, et al. v. Jon Husted, et al. Page 26
of all early in-person votes were cast either after hours on weekdays, on weekends, or
the Monday before the election (PID 1068). A study by a voter advocacy group
indicating that restrictions on in-person early voting would disproportionately affect
African-American voters in Cuyahoga County revealed that African-Americans in that
county had voted in disproportionately large numbers during extended hours and
weekends, and in the three days before the 2008 general election, although they had the
option of voting by mail and in-person during regular business hours; and that restricting
in-person early voting in 2012 would likely lead to crowded conditions during regular
board hours, raising concern that voters would find it necessary to abandon their
attempts to vote due to extremely long wait times (PID 1077, 1082-83). To be sure,
these studies as well do not establish that voters will be precluded from voting if after-
hours and weekend in-person absentee voting is not restored. But they are strong
evidence that a significant number of voters in Ohio’s two largest counties have come
to depend on after-hours and weekend voting as a vehicle for exercising their right to
vote.7
Still, no case has held that voting has to be convenient. The question then is
whether the elimination of in-person after-hours and weekend voting should be viewed
in a vacuum—as if plaintiffs were simply asserting that because of their long work hours
and other demographics they should be able to vote after hours and on weekends so that
they can get the full benefit of early in-person voting—or in the context of Ohio voting
over the last decade, which includes Ohio’s remedial grant of such extended in-person
absentee-voting opportunities, the substantial exercise of that right, and the boards of
Ohio’s largest counties’ reliance on the availability of such voting. If the weighing must
be done in the abstract, I would be compelled to dissent because the election case law
7
Justices Scalia, Thomas and Alito would hold that the weighing of the burden on voters against
the state’s legitimate regulatory interests must be conducted by looking at the electorate at large, not a
particular group of voters who may be burdened disproportionately by an otherwise nondiscriminatory law.
See Crawford, 553 U.S. at 205-06 (Scalia, J., concurring). However, Justice Stevens’ opinion in Crawford
(the narrowest opinion, thus the controlling one for our purposes) examined the evidence and concluded
that, “on the basis of the record that has been made in this litigation, we cannot conclude that the statute
imposes ‘excessively burdensome requirements’ on any class of voters.” Id. at 202 (quoting Storer v.
Brown, 415 U.S. 724, 738 (1974)). Justice Stevens’ opinion does not reveal any disinclination to evaluate
evidence of an excessive burden; rather, the purely anecdotal evidence did not support that the voter-ID
statute at issue imposed such a burden. See Crawford, 553 U.S. at 197-203.
Nos. 12-4055/4076 Obama for America, et al. v. Jon Husted, et al. Page 27
does not support the proposition that there is a constitutional right to have voting on
terms that are equally convenient for all voters. I conclude, however, that the
Anderson/Burdick balancing in this case should not be divorced from reality, and that
both the burden and the legitimate regulatory interest should be evaluated in context.
V
The key distinguishing factor here is that Ohio voters were granted the statutory
right to in-person absentee voting through the close of business hours on the Monday
before election day, and the election boards of the largest counties broadly embraced and
facilitated that right, in response to the unacceptably burdensome situation at many Ohio
polling sites during the 2004 election where, in some counties, voters were required to
stand in line for long hours and until late at night (PID 1432-40, 1657-58). Thus, section
3509.03(I), as originally enacted, was intended to relieve the pressure on the system
resulting from heavy turnout on election day. Further, experience shows that Ohio
voters have taken increasing advantage of in-person absentee voting. In the last
presidential election, close to 500,000 Ohio voters cast in-person absentee ballots, of
which it appears a little over 100,000 were cast the weekend before the election (PID
1053). Further, in the 2008 election, the residents of Ohio’s two largest counties,
Cuyahoga and Franklin, cast over 100,000 in-person absentee votes, the vast majority
during after-hours and on weekends. These counties have budgeted and planned for the
expected extended hours and weekend in-person absentee voting, especially the weekend
before the election (PID 1432-40, 1057-58). They have not budgeted or planned for any
increase in election-day voting caused by the elimination of weekend and after-hours
voting, and fear that the restrictions on the hours for in-person absentee voting will cause
some citizens not to vote and others to vote on election day, leading to long lines and
unreasonable delays at the polls, which in turn will cause some voters to abandon their
attempts at voting, as happened in 2004.
Although states are permitted broad discretion in devising the election scheme
that fits best with the perceived needs of the state, and there is no abstract constitutional
right to vote by absentee ballot, eleventh-hour changes to remedial voting provisions that
Nos. 12-4055/4076 Obama for America, et al. v. Jon Husted, et al. Page 28
have been in effect since 2005 and have been relied on by substantial numbers of voters
for the exercise of their franchise are properly considered as a burden in applying
Anderson/Burdick balancing. To conclude otherwise is to ignore reality. This does not
mean that states cannot change their voting schemes, only that in doing so they must
consider the burden the change and the manner of implementing the change places on
the exercise of the right to vote.
VI
Defendants argue that the new restricted in-person absentee voting hours are
necessary to relieve election workers and election officials from the burdens of in-person
absentee voting immediately before the election, and to assure uniformity in absentee-
voting hours throughout the state. These are legitimate regulatory interests; but neither
bears any relation to the elimination of all after-hours and weekend voting preceding the
final weekend. Regarding the final weekend, these concerns provide little explanation
for the elimination of the right to obtain an absentee ballot in person the Saturday before
the election, when election workers are still honoring mail requests for absentee ballots
until noon pursuant to statute. And in weighing the elimination of in-person absentee
voting the remainder of the weekend, the record shows that many of the specific
complaints voiced by election officials stemmed from in-person absentee voting the
Monday before the election, not the entire weekend.8 The desire for uniformity has little
to do with the elimination of all weekend and after-hours in-person voting. Defendants
offer no explanation for curtailing hours other than on the final weekend, and uniformity
without some underlying reason for the chosen rule is not a justification in and of itself.
Nor is there a showing that eliminating all weekend and after-hours voting will in fact
produce uniform access, as opposed to uniform hours.
Given the studies presented regarding the heavy use of in-person after-hours and
weekend voting, and the legitimate concerns of Ohio’s largest counties and their voters
8
In 2009, former Secretary of State Jennifer Brunner suggested that consideration be given to
the pressure on the election commissions caused by in-person absentee voting and that the voting period
be shortened from 30 to 20 days, with in-person absentee voting ending at 5 p.m. the Sunday before the
election.
Nos. 12-4055/4076 Obama for America, et al. v. Jon Husted, et al. Page 29
regarding the smooth and efficient running of the 2012 presidential election, I conclude
that defendants’ legitimate regulatory interests do not outweigh the burden on voters
whose right to vote in the upcoming election would be burdened by the joint effect of
the statute and the directive.
Finally, I conclude that this is the unusual case where distinctions between
UOCAVA and non-UOCAVA voters cannot support the disparate treatment at issue.
The record adequately supports the district court’s conclusion that the State’s proffered
reason for the distinction between UOCAVA and non-UOCAVA voters—concern that
military voters might be deployed sometime between Friday evening and election
day—had no relation to the statutory distinction and is not supported by the Secretary’s
directive.
VII
Turning to the question of remedy, I understand the district court to have required
Secretary Husted to restore in-person absentee voting through the Monday preceding
election day. I would remand the matter with instructions to give the Secretary and the
General Assembly a short and finite period in which cure the constitutional defects, with
the understanding that a failure to do so will result in the reinstatement of the
preliminary injunction.