Tommy Ray Mays, II v. Frank LaRose ( 2020 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0068p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
TOMMY RAY MAYS, II and QUINTON NELSON SR., ┐
individually and on behalf of all others similarly │
situated, │
Plaintiffs-Appellees, │ No. 19-4112
>
│
v. │
│
│
FRANK LAROSE, in his official capacity as Secretary of │
State of Ohio, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:18-cv-01376—Michael H. Watson, District Judge.
Argued: February 13, 2020
Decided and Filed: March 3, 2020
Before: MERRITT, THAPAR, and NALBANDIAN, Circuit Judges.
_________________
COUNSEL
ARGUED: Zachery P. Keller, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus,
Ohio, for Appellant. Mark P. Gaber, CAMPAIGN LEGAL CENTER, Washington, D.C., for
Appellees. ON BRIEFS: Zachery P. Keller, Benjamin M. Flowers, Michael J. Hendershot,
Ann Yackshaw, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for
Appellant. Mark P. Gaber, Danielle M. Lang, Jonathan M. Diaz, Dana Paikowsky, CAMPAIGN
LEGAL CENTER, Washington, D.C., Naila S. Awan, Kathryn C. Sadasivan, DĒMOS, New
York, New York, Chiraag Bains, DĒMOS, Washington, D.C., Jonathan Manes RODERICK
AND SOLANGE MACARTHUR JUSTICE CENTER, Chicago, Illinois, for Appellees.
No. 19-4112 Mays v. LaRose Page 2
_________________
OPINION
_________________
NALBANDIAN, Circuit Judge. There is no dispute that Ohio is generous when it comes
to absentee voting—especially when compared to other states. Any registered voter may cast
their vote by absentee ballot, for any reason or no reason at all, starting about a month before
election day. But there are limits. The State requires almost all registered voters to request an
absentee ballot by noon, three days before Election Day. The lone exception is for unexpectedly
hospitalized electors. Those electors may request an absentee ballot until 3 p.m. on Election
Day.
Here, police arrested Plaintiffs Tommy Ray Mays, II and Quinton Nelson Sr. the
weekend before Election Day 2018. Foreseeing their confinement lasting through the upcoming
election, and with no other way to vote, they sued Ohio’s Secretary of State for access to
absentee ballots. They brought this suit on behalf of themselves and a class of similar
individuals. The suit alleges an Equal Protection claim, challenging the State’s disparate
treatment of hospital-confined and jail-confined electors, and a First Amendment claim,
challenging Ohio’s absentee ballot request deadline, both as applied to unexpectedly jail-
confined electors. The trial court granted both plaintiffs a temporary restraining order that
permitted them to vote in November 2018. But the court declined to extend that relief to the
class.
Following the November 2018 election, Plaintiffs requested class certification and both
sides moved for summary judgment. The district court certified the class and granted summary
judgment for Plaintiffs and those similarly situated, holding that the burden Ohio’s disparate
treatment of hospital-confined and jail-confined electors places on Plaintiffs’ right to vote is not
justified by a strong enough State interest. We disagree and now REVERSE the district court’s
grant of summary judgment to Plaintiffs, REVERSE the district court’s denial of summary
judgment to LaRose, and REVERSE the district court’s certification of a class.
No. 19-4112 Mays v. LaRose Page 3
I. Background
Police arrested Nelson around 10 p.m. on Friday, November 2, 2018. The next day,
Saturday, November 3, 2018, police arrested Mays shortly after 7 p.m. Neither Mays nor Nelson
had taken advantage of Ohio’s early in-person or absentee voting opportunities and both
Plaintiffs declared that they intended to vote in-person on Election Day. But neither Plaintiff
could post bail. And after their arraignments both Plaintiffs realized they would remain in jail
through Election Day—meaning they would be unable to vote in-person on Election Day. Mays
asked jail officials if the State would allow him to vote but he never received an answer. Nelson
never asked anyone at the jail if he could vote but he testified that even after the booking process
was complete, he had no access to mail supplies, outside visitors, or any other way to contact the
Board of Elections.
Under Ohio law, registered voters (“electors”) have three options for casting their vote.
Any elector, including non-felon jail-confined electors, may vote absentee, so long as they
deliver their request for an absentee ballot to the Board of Elections by noon, three days before
Election Day.1 Ohio Rev. Code Ann. §§ 3509.02, 3509.03. There is a single exception to this
otherwise generally applicable deadline: electors who themselves, or whose minor children, are
hospitalized because of an unforeseeable accident or medical emergency that occurs after the
deadline has passed may request an absentee ballot until 3 p.m. on Election Day. Ohio Rev.
Code Ann. § 3509.08(B); (R. 55-34, Ohio Election Office Manual at PageID # 3016.) And
electors may vote in person, either at their designated polling place on Election Day or during the
early voting period at each county’s designated early voting center.2 Ohio Rev. Code Ann.
§§ 3501.32, 3509.051.
By Election Day morning, Plaintiffs realized they had no remaining option to vote. So
they sued Ohio’s Secretary of State (“the Secretary”) on behalf of themselves and similarly
1Electorsmay begin submitting absentee requests as early as January 1 of the election year or ninety days
before Election Day, whichever is earlier. Ohio Rev. Code Ann. § 3509.03(D).
2In-person early voting begins the day after voter registration closes. It runs for around four weeks through
the day before Election Day and includes opportunities to vote in the evenings and on weekends. (R. 55-34, Ohio
Election Official Manual at PageID # 3010–12); see also Obama for America v. Husted, 697 F.3d 423, 426–28, 437
(6th Cir. 2012).
No. 19-4112 Mays v. LaRose Page 4
situated jail-confined electors.3 They alleged that Ohio’s refusal to allow jail-confined electors
to request an absentee ballot on the same terms as hospital-confined electors violates the Equal
Protection Clause of the federal Constitution’s Fourteenth Amendment. They further alleged
that Ohio’s generally applicable deadline for requesting absentee ballots violates the First
Amendment’s guarantee of the right to vote, as applied to jail-confined electors with no other
way to vote. Last, Plaintiffs sought to certify a class under Federal Rule of Civil Procedure 23,
seeking relief for all jail-confined electors who the State arrested after close of business on the
Friday before the election, who had not voted early, and who would remain in jail through
Election Day.
The district court granted a temporary restraining order against the Secretary, requiring
him to provide absentee ballots to Mays and Nelson on Election Day. Following discovery, both
parties moved for summary judgment. The district court certified the Plaintiffs’ proposed class,
granted the Plaintiffs’ motion for summary judgment on their Equal Protection claim, and denied
the Secretary’s motion for summary judgment. The Secretary appeals.
II. Standing
“Every federal appellate court has a special obligation to assure itself . . . of its own
jurisdiction[.]” Alston v. Advanced Brands & Importing Co., 494 F.3d 562, 564 (6th Cir. 2007)
(citation omitted). So we directed the parties to address Plaintiffs’ standing in supplemental
briefing. They agree that Plaintiffs have standing to bring their claims. And for the most part
they are correct.
Article III imposes three standing requirements for plaintiffs in federal court: an injury-
in-fact, causation, and redressability. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).
The only one that raises concerns here is causation. That requirement is met when there is a
causal connection between a plaintiff’s injury and the conduct complained of, that is, the injury
must be “fairly traceable to the challenged action of the defendant, and not the result of the
independent action of some third party not before the court.” Id. (cleaned up). Because a
3Plaintiffs originally named Jon Husted as Defendant. Frank LaRose succeeded Husted as Secretary of
State of Ohio in January 2019 and accordingly replaced Husted as Defendant.
No. 19-4112 Mays v. LaRose Page 5
combination of Ohio’s deadline for requesting an absentee ballot and the State’s confinement of
Plaintiffs caused their inability to vote, Plaintiffs have standing to bring their claims.
The Secretary concedes police arrested Mays after the deadline to request an absentee
ballot had passed, that he asked jail officials if he could vote from jail, and that he could not post
bail and remained in jail through Election Day. (Appellant’s Suppl. Br. at 1–2.) Whether Mays
actually requested an absentee ballot once jailed is immaterial because any such request would
have been futile. Ohio law sets a deadline of noon, three days before Election Day for any
elector to request an absentee ballot. Ohio Rev. Code Ann. §§ 3509.02, 3509.03. While the
State allows unexpectedly hospital-confined electors an extended deadline, that exception does
not apply to unexpectedly jail-confined electors. Ohio Rev. Code Ann. § 3509.08(B); (R. 55-34,
Ohio Election Office Manual at PageID # 3016.) So by the time police arrested Mays, he had no
way to request an absentee ballot under Ohio law. And because the State confined Mays through
Election Day, he could not vote in-person, either early or on Election Day.
When doing so would be futile, Article III does not require plaintiffs to take actions
simply to establish standing. Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 392–93
(1988); Clements v. Fashing, 457 U.S. 957, 962 (1982); Int’l Bhd. of Teamsters v. United States,
431 U.S. 324, 365–66 (1977). Whether Mays asked to vote absentee from jail is irrelevant
because at the time police arrested Mays, Ohio law dictated that there was no way for him to
request an absentee ballot. So it was the State’s absentee ballot request deadline and
confinement of Mays that caused his inability to vote.
The Plaintiffs are not similarly situated, however, with regard to the Equal Protection
issue. Ohio law treats hospital-confined and jail-confined electors differently: the State gives
unexpectedly hospital-confined electors an extended deadline to request an absentee ballot but
does not do the same for unexpectedly jail-confined electors. Ohio Rev. Code Ann.
§ 3509.08(B); (R. 55-34, Ohio Election Office Manual at PageID # 3016.) Any elector jailed
during this same window must comply with the normal deadline. Mays falls within the class of
electors affected by this policy. Police arrested him around seven hours after the deadline
passed. Had a hospital admitted him at the same time, the State would have allowed him to
request an absentee ballot. But he was in jail, so he could not. Thus, Mays’s inability to vote is
No. 19-4112 Mays v. LaRose Page 6
fairly traceable to Ohio’s disparate treatment of confined electors and he has standing to
challenge that State action.
Nelson’s case is a different story. Police arrested Nelson fourteen hours before the
deadline to request an absentee ballot. Had a hospital admitted Nelson at the same time, Ohio
law still would have required him to comply with the Saturday noon deadline. (See R. 55-34,
Ohio Election Office Manual at PageID # 3016.) But because “we have at least one individual
plaintiff who has demonstrated standing to assert these rights as his own[,] . . . we need not
consider whether the other individual . . . [has] standing to maintain the suit.” Village of
Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264 & n.9 (1977). So we proceed
to the merits of Plaintiffs’ claims.
III. Plaintiffs’ Equal Protection Claim
“We review a district court’s grant of summary judgment de novo to determine whether
there is a genuine dispute as to any material fact.” Miles v. S. Cent. Human Res. Agency, Inc.,
946 F.3d 883, 887 (6th Cir. 2020). When there is no dispute as to any material fact and the
movant is entitled to judgment as a matter of law, summary judgment is appropriate. Fed. R.
Civ. P. 56(a). In conducting this inquiry, we view all evidence in the light most favorable to, and
draw all inferences in favor of, the non-moving party. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). The State’s interests in efficiently allocating its election
resources and administering elections in an orderly manner outweigh the moderate burden its
disparate treatment of confined electors places on Mays’s right to vote. So summary judgment is
appropriate for the Secretary, not Mays.
“[V]oting is of the most fundamental significance under our constitutional structure.” Ill.
Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979). “Other rights, even the
most basic, are illusory if the right to vote is undermined.” Wesberry v. Sanders, 376 U.S. 1, 17
(1964). “It does not follow, however, that the right to vote in any manner . . . [is] absolute.”
Burdick v. Takushi, 504 U.S. 428, 433 (1992). The Constitution explicitly provides State
legislatures with authority to regulate the “Times, Places and Manner of holding Elections[.]”
U.S. Const. art. I, § 4, cl. 1. So while States can regulate elections, they must be careful not to
No. 19-4112 Mays v. LaRose Page 7
unduly burden the right to vote when doing so. The Equal Protection Clause provides one check
against any such undue burden. See McDonald v. Bd. of Election Comm’rs of Chi., 394 U.S.
802, 807 (1969) (“[O]nce the States grant the franchise, they must not do so in a discriminatory
manner.”).
Normally, we evaluate Equal Protection claims using the well known “tiers of scrutiny”:
facially discriminatory government action requires increasingly important government
justification and a much closer means-end relationship as the State’s distinctions move from
those based on non-protected classes such as economic status, to protected classes such as
gender, and on to the most rigorously protected classes such as race. Compare San Antonio
Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 24–25 (1973), with United States v. Virginia,
518 U.S. 515, 532–33 (1996), and Loving v. Virginia, 388 U.S. 1, 11–12 (1967). But when a
“plaintiff alleges that a state has burdened voting rights through the disparate treatment of
voters,” this court’s precedent requires us to apply the Anderson-Burdick framework.4 Obama
for Am. v. Husted, 697 F.3d 423, 429 (6th Cir. 2012).
4It’sunclear whether the Supreme Court ever intended Anderson-Burdick to apply to Equal Protection
claims. That Court has only applied the framework in the context of generally applicable laws. See Crawford v.
Marion Cty. Election Bd., 553 U.S. 181, 190–203 (2008) (Stevens, J., announcing the judgment of the Court)
(generally applicable voter identification law); Burdick v. Takushi, 504 U.S. 428, 433–34 (1992) (generally
applicable prohibition on write-in voting); Norman v. Reed, 502 U.S. 279, 288–89 (1992) (generally applicable
requirements for ballot access for a new political party); Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)
(generally applicable filing deadline for independent candidates). And in two of those cases, the Court made clear:
“we base our conclusions directly on the First and Fourteenth Amendments and do not engage in a separate Equal
Protection Clause analysis.” Anderson, 460 U.S. at 786 n.7; Norman, 502 U.S. at 288 n.8 (same). Further, the
Supreme Court has explained Anderson-Burdick as a “two-track approach”; strict scrutiny applies when the burden
is severe and a deferential balancing analysis applies for “nonsevere, nondiscriminatory restrictions[.]” Crawford,
553 U.S. at 204–05 (Scalia, J., concurring). It was this court, in Obama for America, that created the three-track
approach we now must apply in Equal Protection cases that implicate the right to vote. See 697 F.3d at 428–33.
Other courts that have considered Equal Protection claims in the voting context don’t apply
Anderson-Burdick. See Jones v. Governor of Fla., --- F.3d ----, 2020 WL 829347 at *19–67 (11th Cir. Feb. 19,
2020) (per curiam) (conducting an Equal Protection analysis of Florida’s felon re-enfranchisement policy with no
discussion of Anderson-Burdick). And neither did this Circuit in a similar case before Obama for America. See
Johnson v. Bredesen, 624 F.3d 742, 746–50 (6th Cir. 2010) (deciding the same issue as Jones, also with no
discussion of Anderson-Burdick). That makes sense because it’s difficult to fit a disparate treatment claim into that
framework.
Anderson-Burdick first asks us to weigh the magnitude of the burden placed by the State’s action on the
plaintiff’s right to vote. See Burdick, 504 U.S. at 433–34. But State action making it easier for some electors to
vote—such as providing them an extended deadline to register for absentee ballots—doesn’t make it harder to vote
for electors that don’t get the same benefit. Rather, it’s the generally applicable absentee ballot deadline that places
No. 19-4112 Mays v. LaRose Page 8
Under Anderson-Burdick, we first look to the burden the State’s regulation imposes on
the right to vote. Burdick, 504 U.S. at 434; Obama for Am., 697 F.3d at 428. When States
impose “‘reasonable nondiscriminatory restrictions’” on the right to vote, courts apply rational
basis review and “‘the State’s important regulatory interests are generally sufficient to justify’
the restrictions.” Burdick, 504 U.S. at 434 (quoting Anderson v. Celebrezze, 460 U.S. 780, 788
(1983)); see Obama for Am., 697 F.3d at 429. But when States impose severe restrictions on the
right to vote, such as poll taxes or limiting access to the ballot, strict scrutiny applies. Burdick,
504 U.S. at 434 (citing Norman v. Reed, 502 U.S. 279, 289 (1992)); Obama for Am., 697 F.3d at
429. It is when cases fall between these two extremes that the Anderson-Burdick framework
departs from the traditional tiers of scrutiny and creates its own test.
For these intermediate cases, where the burden on the right to vote is moderate, we must
weigh that burden 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 plaintiff’s rights.’” Burdick, 504 U.S. at 434 (quoting Anderson,
460 U.S. at 789). Only where the State’s interests outweigh the burden on the plaintiff’s right to
vote do voting restrictions not offend the Equal Protection Clause. Obama for Am., 697 F.3d at
433. While this standard is flexible, we must ultimately “make the ‘hard judgment’ that our
adversary system demands.” Crawford, 553 U.S. at 190 (Stevens, J., announcing the judgment
of the Court).
Turning to this case, we begin by identifying the burden that Ohio’s disparate treatment
of confined electors places on Plaintiffs’ right to vote. Precedent from this court and the
Supreme Court suggests that we must evaluate this burden from the perspective of only affected
electors and within the landscape of all opportunities that Ohio provides to vote. Viewing the
facts this way, we conclude that the burden on Plaintiffs’ right to vote is intermediate,
somewhere “between slight and severe.” (R. 70, Op. & Order at PageID # 4319.)
the burden, if any, on Plaintiffs’ right to vote. So it takes some legal gymnastics to quantify the “burden” that the
State’s disparate treatment places on Plaintiffs’ right to vote.
The traditional Equal Protection tiers of scrutiny instead focus on how the State chooses to classify its
citizens when drawing lines and then imposes differing requirements on the State’s justifications for those
classifications accordingly. They are thus better suited for analyzing disparate treatment claims—even in the voting
context. Nonetheless, we are bound by Obama for America, so we apply Anderson-Burdick.
No. 19-4112 Mays v. LaRose Page 9
All binding authority to consider the burdensome effects of disparate treatment on the
right to vote has done so from the perspective of only affected electors—not the perspective of
the electorate as a whole. In O’Brien v. Skinner, the Supreme Court considered whether New
York’s law excluding jail-confined electors from eligibility for absentee ballots violated the
Equal Protection Clause. 414 U.S. 524, 525 (1974). In holding that it did, the Court looked only
to the effect of New York’s law on jail-confined electors, not on the entire electorate, or even on
all electors excluded from eligibility for absentee ballots. Id. at 529–30. Similarly, in Obama for
America, this court evaluated whether Ohio’s restriction of early in-person voting violated the
Equal Protection Clause. 697 F.3d at 425. In determining that it likely did, we looked only to
the burden on electors who were likely to vote during the eliminated times. Id. at 431 (noting
that affected electors were “disproportionately women, older, and of lower income and education
attainment” and of “lower incomes and less education than election day voters” (internal
quotation and citation omitted)).
While Justice Scalia’s concurrence in Crawford explained that Supreme Court
“precedents refute the view that individual impacts are relevant to determining the severity of the
burden [State action] imposes [on the right to vote].” 553 U.S. at 205 (Scalia, J., concurring).
He goes on to say that “[s]ubsequent cases have followed Burdick’s generalized review of
nondiscriminatory election laws.” Id. at 206 (emphasis added). And Crawford involved a voter
identification law that applied non-discriminately to all voters. Id. at 185. Ohio’s absentee ballot
request deadline facially discriminates between classes of electors. And in cases of disparate
treatment, courts have always treated the perspective of the burdened elector as the relevant
perspective.
Similarly, Rosario v. Rockefeller tells us that we must evaluate the burden on disparately
treated voters considering all available opportunities to vote. See 410 U.S. 752, 757 (1973).
There, the Court evaluated New York’s primary registration system, which required voters to
register for party primaries during the preceding general election. Id. at 753–54. The Plaintiffs
were electors who could have registered during the previous general election but did not and then
sued because the State excluded them from participating in the successive primary. Id. at 756.
In determining that New York’s law placed only a minimal burden on these electors’ right to
No. 19-4112 Mays v. LaRose Page 10
vote, the Court considered all options provided by the State and held Plaintiffs’ failure to register
when they had the chance against them:
The petitioners do not say why they did not enroll prior to the cutoff date;
however, it is clear that they could have done so, but chose not to. Hence, if their
plight can be characterized as disenfranchisement at all, it was not caused by [the
statute at issue], but by their own failure to take timely steps to effect their
enrollment.
Id. at 758.
The Court did not determine that the State severely burdened or disenfranchised Plaintiffs
by looking only to the time after the State’s deadline had passed. Rather, it considered all voting
opportunities that the Plaintiffs could have taken advantage of, even if they were no longer a
possibility at the time of litigation. True, Rosario predates Anderson and Burdick. But these
early cases still evaluated the burden on affected voters, only without the balancing inquiry that
Anderson and Burdick established. What’s more, Burdick agrees. See 504 U.S. at 436–37
(“[A]ny burden on voters’ freedom of choice and association is borne only by those who fail to
identify their candidate of choice until days before the primary.”).5
Considering Ohio’s absentee ballot request deadlines from the perspective of
unexpectedly jail-confined electors and given the alternative voting opportunities that Ohio
provides, the burden those laws place on Plaintiffs’ right to vote is moderate. We reserve
rational basis review for “reasonable, nondiscriminatory restrictions.” Anderson, 460 U.S. at
788. Because Ohio’s absentee ballot request deadline facially discriminates between two classes
of electors—hospital-confined and everyone else—our precedent dictates that the burden that
law places on the right to vote is more than minimal. See Mich. State A. Philip Randolph Inst. v.
Johnson, 833 F.3d 656, 663–65 (6th Cir. 2016) (affirming the district court’s finding that
Michigan’s elimination of straight ticket voting imposed an intermediate burden on the right to
vote because that state action “would likely have a larger impact on African-American voters.”
(internal quotation marks and citation omitted)); Obama for Am., 697 F.3d at 431–32 (rejecting
5And the Court considered the burden Hawaii’s prohibition on write-in voting placed on the Plaintiff’s
right to vote within the context of all ballot access opportunities the State provided for independent candidates. See
504 U.S. at 435–37.
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rational basis review in a case involving early voting periods that discriminated between military
and non-military electors).
Strict scrutiny is the standard for cases where “the State totally denied the electoral
franchise to a particular class of residents, and there was no way in which the members of that
class could have made themselves eligible to vote.” Rosario, 410 U.S. at 758; see also Norman,
502 U.S. at 289. Ohio provides all electors the opportunity to vote early. Plaintiffs had around
four weeks before their arrest to vote early in-person. Ohio Rev. Code Ann. § 3509.051;
(R. 55-34, Ohio Election Official Manual at PageID # 3010–12.) And they had over ten months
before their arrest to request an absentee ballot. Ohio Rev. Code Ann. §§ 3509.02, 3509.03. Just
as in Rosario, Plaintiffs’ choice to not participate in the opportunities Ohio provides to vote other
than on Election Day was, at least in part, the cause of their inability to vote. See 410 U.S. 757.
True, Plaintiffs planned to vote in-person on Election Day and did not foresee their arrest.
But any Ohio elector can be called away unexpectedly. See Obama for Am., 697 F.3d at 435
(“any voter could be suddenly called away and prevented from voting on Election Day”).
As Justice Blackmun said in O’Brien:
The plight of detainees elicits concern, of course, for a detainee may not be guilty
of the offense with which he is charged. Yet the statutes’ effect upon him,
although unfortunate, produces a situation no more critical than the situation of
the voter, just as unfortunate, who on election day is away attending a funeral of a
loved one in a distant State. These are inequalities, but they are the incidental
inequalities of life, and I do not regard them as unconstitutional.
414 U.S. at 537 (Blackmun, J., dissenting). There are easily several reasons why an elector may
be unable to vote in person on Election Day—and the Secretary’s briefs list many—but Plaintiffs
could have avoided all that uncertainty by taking advantage of the opportunities Ohio provides to
vote early. In this regard, the Plaintiffs are no more burdened than any other elector.
Because Plaintiffs are not totally denied a chance to vote by Ohio’s absentee ballot
deadlines, strict scrutiny is inappropriate. See Rosario, 410 U.S. at 757; see also Norman,
502 U.S. at 289. Finding the burden these laws place on Plaintiffs between minimal and severe,
it is best classified as a moderate burden. So the laws survive if the State’s justifications for
them outweigh this moderate burden. See Obama for Am., 697 F.3d at 433.
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The Secretary puts forth several justifications for Ohio’s disparate treatment of confined
electors. He broadly asserts the State’s interest in the orderly administration of elections and
then lists several interests that fall within this category: “preserving the integrity of the election
process, maintaining a stable political system, preventing voter fraud, protecting public
confidence, and reducing administrative costs.” (Appellant’s Br. at 28–29 (citations omitted)).
Justice Stevens’s plurality opinion in Crawford recognized the relevance and legitimacy of a
State’s interest in the “orderly administration” of elections. 553 U.S. at 196 (Stevens, J.,
announcing the judgment of the Court). And courts have recognized all the subsidiary interests
as relevant and legitimate as well. See id. at 197; Timmons v. Twin Cities Area New Party,
520 U.S. 351, 364 (1997); Ohio Democratic Party v. Husted, 834 F.3d 620, 634 n.8 (6th Cir.
2016). The Secretary’s argument is that the State and its regional election boards possess limited
resources devoted to elections. These election boards have many tasks that they must complete
in the days before an election and on Election Day. If Ohio required its election boards to
process absentee ballots from jail-confined electors in the days just before an election and on
Election Day, it would frustrate the boards’ ability to accomplish these tasks, tasks necessary to
preserving the integrity of the election process, maintaining a stable political system, preventing
voter fraud, and protecting public confidence—and to a much greater degree than allowing for
late applications from hospital-confined electors.
As this court said in Obama for America, “the list of responsibilities of the board 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.” 697 F.3d
at 432–33. The record here supports a similar finding. During the weekend before an election,
each county’s board of elections must: authenticate, prepare, and mail absentee ballots; examine,
verify, and count completed absentee ballots as electors return them; notify voters who voted
incorrectly that they need to correct their ballot; staff early-voting locations; locate, hire, and
train poll workers for Election Day; field and respond to questions from poll workers and voters;
compile a list of eligible electors who have not voted early; deliver absentee ballots to hospital-
confined electors and homebound and jail-confined electors who requested absentee ballots
before the deadline; and deliver physical voting equipment, ballots, and supplies to polling
locations. And on Election Day, the boards must oversee each polling place, answer questions
No. 19-4112 Mays v. LaRose Page 13
from voters and poll workers, again deliver absentee ballots to hospital-confined electors, and
resolve any unforeseen responsibilities that arise.
The Secretary argues that requiring election boards to process late absentee requests from
jail-confined electors during the weekend before and on Election Day will prevent the boards
from accomplishing the above-listed tasks, which are necessary to achieve all the relevant and
legitimate state interests he proffers. As he puts it: “[b]ecause humans are bound by the laws of
physics, they cannot be in two places at once, and so many resources dedicated to
accommodating jailed voters cannot be spent completing other tasks.” (Appellant’s Reply Br. at
21.) But the Secretary need not rely on physics or even common sense.
The record shows that the election board in Ohio’s third-largest county would need more
staff to process late absentee requests from jail-confined electors. And some counties’ election
boards only operate with two staff members. Boards in small counties such as these could
accomplish none of their other tasks while processing and delivering late-requested absentee
ballots to jail-confined electors. Further, jail-confined electors are not similarly situated with
hospital-confined electors because of the location of their confinement. Board staff that deliver
absentee ballots to jails must engage in advanced planning to ensure that they will be able to
locate the elector in the jail, pass through the jail’s security, and verify that the elector will be
present at the jail when they arrive. This advance planning—which would take up time during
the already busy pre-election period—is unnecessary to deliver absentee ballots to hospital-
confined electors.
And finally, we note that the federal Courts of Appeals have recognized, as a general
matter, that “[p]risoners are not similarly situated to non-prisoners.” Roller v. Gunn, 107 F.3d
227, 234 (4th Cir. 1997) (upholding a court filing fee unique to prisoners); accord Smith v.
Corcoran, 61 F. App’x 919 (5th Cir. 2003) (per curiam) (rejecting a prisoner’s Bivens claim
regarding the refusal of postal officials to investigate alleged tampering with his mail); Boivin v.
Black, 225 F.3d 36, 44 (1st Cir. 2000) (affirming the constitutionality of a statutory cap on
attorneys’ fee awards for prison litigation claims); Allen v. Cuomo, 100 F.3d 253, 260–61 (2d
Cir. 1996) (finding no constitutional problem with the lack of a hardship waiver for disciplinary
surcharges for inmates found guilty of violating prison rules); Scher v. Chief Postal Inspector,
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973 F.2d 682, 683–84 (8th Cir. 1992) (affirming dismissal of a Bivens claim based on refusal of
postal employees to investigate a complaint regarding treatment of prisoners’ mail). Although
none of these cases involves the exact scenario at issue here, they confirm that there are
countless reasons that jail-confined citizens are not similarly situated to those outside jail. So at
a minimum, Plaintiffs face an uphill battle to establish that jail-confined electors and hospital-
confined electors are similarly situated. See Bell v. Wolfish, 441 U.S. 520, 545 (1979)
(“[S]imply because prison inmates retain certain constitutional rights does not mean that these
rights are not subject to restrictions and limitations.”).
True, there is evidence that Ohio’s most populous county would not need any more staff
to accommodate late requests from jail-confined electors the same as hospital-confined electors
and that doing so would impose no greater burden on the board. But as we said in Obama for
America, one county, or even several counties, “cannot speak for all of Ohio’s counties.”
697 F.3d at 433. So just because Franklin County has enough staff to accommodate late requests
from jail-confined electors without imposing a greater burden does not mean that Ohio’s other
counties will be able to as well. Even more important, this conclusory evidence ignores
testimony from the same witness about the planning between Franklin County’s Board of
Elections and the jails in that county. The witness testified that there is an exchange of
information before the Board’s visit to the jails to deliver absentee ballots that allows the jail to
pre-clear board staff members for security purposes and prepare the jail-confined electors for the
voting process. So the witness’s testimony that extending late absentee voting to jail-confined
electors would not burden Franklin County’s Board of Elections depends on her experiences
with smooth jailhouse voting—a process that benefits from advanced planning. Late requests
from jail-confined electors, especially those received on Election Day morning, do not allow for
this advanced planning and will likely result in an increased burden.
Plaintiffs challenge the Secretary’s justifications on several grounds. They claim that the
justifications are simply a “post hoc litigation rationalization[,]” that testimony from the
Secretary’s Rule 30(b)(6) designee forecloses his ability to now provide these justifications, and
that Obama for America rejected similar justifications. (Appellee’s Br. at 30.) None of these
contentions is persuasive.
No. 19-4112 Mays v. LaRose Page 15
Plaintiffs cite only United States v. Virginia, 518 U.S. at 533, to argue that post hoc
rationalizations cannot satisfy intermediate scrutiny. But that case was a challenge to gender
discrimination. Id. at 519–20. And as discussed, voting cases in this Circuit differ from other
Equal Protection claims regarding intermediate scrutiny; the Anderson-Burdick framework
applies. See Obama for Am., 697 F.3d at 429. No opinion from this court or the Supreme Court
has ever limited the record that the State can build in order to justify a burden placed on the right
to vote. And the language used by this court in Obama for America suggests that the State may
come up with its justifications at any time. See 697 F.3d at 429 (describing a State’s
justifications in the Anderson-Burdick framework as those “put forward by the State,” “asserted”
by the State, and “proffered by the State”).
This makes sense. The facially discriminatory State policy at issue in United States v.
Virginia limited enrollment at a State university to males. And it is impossible to think about a
male-only university without also considering the exclusion of females. But when Ohio decided
to make an exception for unexpectedly hospital-confined electors in 1971, the only immediately
apparent class treated differently was all other electors in Ohio. See 1971 Ohio Laws 873,
§ 3509.08 (Am. S.B. 460). And under the Supreme Court’s then-prevailing McDonald decision,
a state was free to deny completely absentee ballots to confined persons. 394 U.S. at 807;
see Obama for Am., 697 F.3d at 439 (White, J., concurring in part). Under these circumstances,
we see no need to limit consideration of the State’s evidence and rationales regarding the
differences between the relevant populations here.
The Secretary’s Rule 30(b)(6) designee did not bind him from raising the justifications he
now proffers for three reasons. First, the designee testified that she did not know the
legislature’s rationale for treating classes of confined electors differently—which is not
surprising (see supra). She did, however, competently testify that the Secretary’s office would
be concerned with the staffing implications of allowing late absentee registration for jail-
confined electors and the differences between hospitals and jails. The latter is more relevant for
purposes of this as-applied challenge. Second, counsel for the Secretary contemporaneously
objected to the relevant questioning of the designee. The questions called for the designee to
speculate on the intent of the legislature when it enacted the exception for hospital-confined
No. 19-4112 Mays v. LaRose Page 16
electors, a topic on which the designee had no personal knowledge. See Fed. R. Evid. 602
(“A witness may testify to a matter only if evidence is introduced sufficient to support a finding
that the witness has personal knowledge of the matter.”) Third, most courts don’t treat
concessions by Rule 30(b)(6) designees as binding. See Vehicle Mkt. Research, Inc. v. Mitchell
Int’l, Inc., 839 F.3d 1251, 1260 (10th Cir. 2016) (noting “the majority of courts to reach the issue
. . . treat the testimony of a Rule 30(b)(6) representative as merely an evidentiary admission, and
do not give the testimony conclusive effect”) (citation omitted). So the designee in no way
bound the Secretary from proffering the justifications he now provides.
Last, Obama for America is distinguishable. That case involved Ohio’s attempt to roll
back in part, in-person early voting. 697 F.3d at 427. Ohio had allowed electors to vote early,
in-person, through the Monday before Election Day. Id. The State changed course and tried to
eliminate opportunities to vote early in-person after the Friday before Election Day, except for
military electors. Id. Military electors could still vote through the Monday before Election Day.
Id. Plaintiffs, who were not military electors, challenged the State’s actions.
In ruling on the likelihood of the Plaintiffs’ success on the merits, we determined that the
Anderson-Burdick framework applied and that the burden on the Plaintiffs’ right to vote was
moderate. Id. at 428–29. We then rejected the two justifications proffered by the State: (1) that
county boards of elections were too busy preparing for Election Day to accommodate early
voters in the weekend leading up to an election and (2) that military service members and their
families face unique difficulties in getting to the polls on Election Day. Id. at 432–33. In so
ruling, we held that the State failed to show why officials would now be unable to accomplish
the undoubtably significant tasks during the days just before an election while accommodating
early voting, given that that there was no evidence that county boards of elections faced such
difficulties in prior years when the State allowed early voting during this same period. Id. at 433
(“[T]he 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 into place in 2005.”). The Plaintiffs also introduced evidence from some counties
showing that more early voting opportunities would actually reduce their burden by spreading
out demand. Id. Last, the State failed to put forth evidence establishing that military electors
No. 19-4112 Mays v. LaRose Page 17
were substantially different than non-military electors to justify the disparate treatment. Id. at
434–35.
Here, none of our Obama for America rationales apply. Ohio has never provided jail-
confined electors a chance to register for absentee ballots last minute. And Plaintiffs have not
countered the Secretary’s evidence that many counties in Ohio will have trouble
accommodating the relief Plaintiffs seek, given existing resources. That Ohio can accommodate
hospital-confined electors’ late requests does not establish that election boards can do the same
for jail-confined electors. This is because of the increased burden that processing last minute
jail-confined electors’ absentee requests would impose on the boards, as discussed above.
Plaintiffs also have not shown that providing jail-confined electors the ability to request an
absentee ballot at the last minute would ease the State’s burden on Election Day. At best,
Plaintiffs have shown that Ohio’s most populous county, whose Board of Elections has
substantial resources, would not be worse off. Finally, the Secretary has established real
differences between hospitals and jails, which show that electors confined there are not similarly
situated. In all, the Secretary’s relevant and legitimate interest in the orderly administration of
elections is much stronger here than in Obama for America.
The Secretary has the burden of establishing that Ohio’s disparate treatment of confined
electors furthers the State’s interest in orderly election administration. See Obama for Am.,
697 F.3d at 433–34. And the Secretary has carried his burden here. He has identified several
counties that do not have adequate resources to process late absentee ballot requests from
unexpectedly jail-confined electors without foregoing other duties necessary to ensure the
orderly administration of Ohio’s elections. Thus, he has shown that the State’s interests are
important and weighty enough to overcome the moderate burden that Ohio’s disparate treatment
of confined electors imposes on Plaintiffs.
As the Supreme Court said in McDonald v. Board of Election Commissioners of Chicago:
Ironically, it is [Ohio’s] willingness to go further than many States in extending
the absentee voting privileges . . . that has provided [Plaintiffs] with a basis for
arguing that the provisions operate in an invidiously discriminatory fashion . . . .
Indeed, [Plaintiffs’] challenge seems to disclose not an arbitrary scheme or plan
but, rather, the very opposite—a consistent and laudable state policy of adding . . .
No. 19-4112 Mays v. LaRose Page 18
groups to the absentee coverage as their existence comes to the attention of the
legislature. That [Ohio] has not gone still further, as perhaps it might, should not
render void its remedial legislation, which need not, as we have stated before,
“strike at all evils at the same time.”
394 U.S. at 810–11 (quoting Semler v. Dental Exam’rs, 294 U.S. 608, 610 (1935)) (footnote
omitted). Finding no dispute of material fact and that the Secretary is entitled to judgment as a
matter of law, summary judgment is appropriate in favor of the Secretary. So we reverse the
district court’s grant of summary judgment to Plaintiffs on their Equal Protection claim and
reverse the district court’s denial of summary judgment to the Secretary on that claim.
IV. Plaintiffs’ First Amendment Claim
Next, we address Plaintiffs’ First Amendment challenge to Ohio’s deadline. The trial
court expressed some skepticism regarding this challenge but ultimately did not decide the issue
given its resolution of the Equal Protection challenge. Although we could remand for
consideration of this claim, the issue was fully briefed and raised in the trial court and involves a
question of law. In these circumstances, we can exercise our discretion to resolve the issue. See
Foster v. Barilow, 6 F.3d 405, 407 (6th Cir. 1993).
Ohio’s generally applicable deadline for requesting absentee ballots is constitutional
because it imposes only a minimal burden on Plaintiffs’ right to vote and the same state interests
from Plaintiffs’ Equal Protection claim justify that burden. “[W]hen a state election law
provision imposes only ‘reasonable, nondiscriminatory restrictions’ upon the First and
Fourteenth Amendment rights of voters, ‘the State’s important regulatory interests are generally
sufficient to justify’ the restrictions.” Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at
788). First, there is no constitutional right to an absentee ballot. McDonald, 394 U.S. at 807–09.
And standing alone, Ohio’s deadline of noon, three days before Election Day is
nondiscriminatory.6 Any elector may request an absentee ballot, so long as they deliver that
request to the Board of Elections by noon, three days before Election Day. Ohio Rev. Code Ann.
§§ 3509.02, 3509.03. Even though this law may eliminate opportunities to vote for electors who
6 As discussed, Ohio law discriminates between hospital-confined electors and everyone else. But
Plaintiffs’ First Amendment claim challenges only the Saturday noon deadline, as-applied to them; it is their Equal
Protection claim that challenges the disparate treatment.
No. 19-4112 Mays v. LaRose Page 19
fail to register before the deadline, a state’s generally applicable registration cutoff imposes only
a minimal burden on the right to vote. Rosario, 410 U.S. at 758. Ohio law provides electors
over ten months to request an absentee ballot. Ohio Rev. Code Ann. §§ 3509.02, 3509.03.
So electors who fail to vote early cannot blame Ohio law for their inability to vote; they must
blame “their own failure to take timely steps to effect their enrollment.” Rosario, 410 U.S. at
758; see also Burdick, 504 U.S. at 436–37 (“[A]ny burden on voters’ freedom of choice and
association is borne only by those who fail to identify their candidate of choice until days before
the primary.”).
Because Ohio’s interest in orderly election administration is weighty enough to justify the
moderate burden its disparate treatment of confined electors places on Plaintiffs’ right to vote,
those interests must be enough to justify the much lower burden that the State’s generally
applicable absentee ballot request places on their right to vote under rational basis review.
Especially given that “the State’s important regulatory interests are generally sufficient to
justify” the restrictions. Anderson, 460 U.S. at 788. Although it didn’t reach the claim, the
district court suggested that it would have held the same. (R. 70 Op. & Order at PageID # 4322
(“[A] generally applicable deadline that applied to all would-be absentee voters would likely
survive the Anderson-Burdick analysis, even if it resulted in disenfranchisement for certain
incarcerated individuals.”).) And this court and the Supreme Court have made similar
statements. See Dunn v. Blumstein, 405 U.S. 330, 347–48 (1972) (implying that a generally
applicable voter registration deadline of thirty days before Election Day is constitutional);
Obama for Am., 697 F.3d at 433–34 (“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.”).
True, we may decline to reach issues that the district court does not. See, e.g., Prime
Media, Inc. v. City of Brentwood, 398 F.3d 814, 825 (6th Cir. 2005). But exercise of that
discretion is permissive, not mandatory. And Plaintiffs give us no good reason for exercising
that discretion here. The Secretary, on the other hand, gives a good reason for resolving all of
Plaintiffs’ claims: elimination of any doubt about the constitutionality of Ohio’s election laws
before the upcoming election. In a case such as this, where the correct result is clear and the
No. 19-4112 Mays v. LaRose Page 20
district court alluded to how it would have resolved the issue, resolution of Plaintiffs’ First
Amendment claim is appropriate. Because Ohio’s important regulatory interest in the orderly
administration of elections outweighs the minimal burden that the State’s absentee ballot request
deadline places on Plaintiffs’ right to vote, the Secretary is entitled to judgment as a matter of
law. So we reverse the district court’s denial of summary judgment to the Secretary on
Plaintiffs’ First Amendment claim.
V. Class Certification
Even though we are reversing the trial court’s decision on the merits here, we review the
trial court’s class certification decision because it affects the scope of the judgment and the
Secretary conceded at argument that we should reach the issue, even if he prevails on the merits
of Plaintiffs claims. We review class certification questions for abuse of discretion. In re
Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 850 (6th Cir. 2013).
“An abuse of discretion occurs if the district court relies on clearly erroneous findings of fact,
applies the wrong legal standard, misapplies the correct legal standard when reaching a
conclusion, or makes a clear error of judgment.” Id. (quoting Young v. Nationwide Mut. Ins. Co.,
693 F.3d 532, 536 (6th Cir. 2012)). Federal Rule of Civil Procedure 23 imposes four
requirements for class certification: numerosity, commonality, typicality, and adequacy (and
some courts have read an implicit fifth requirement into Rule 23; ascertainability). The
Secretary challenges commonality and typicality, as well as the ascertainability of the class.
Because commonality and typicality resolve the class certification question, we need not reach
the ascertainability issue.
Commonality requires that “there are questions of law or fact common to the class.”
Fed R. Civ. P. 23(a)(2). So all class members’ “claims must depend upon a common contention
. . . that is capable of classwide resolution—which means that determination of its truth or falsity
will resolve an issue that is central to the validity of each one of the claims in one stroke.”
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Similarly, typicality requires that “the
claims or defenses of the representative parties are typical of the claims or defenses of the class.”
Fed. R. Civ. P. 23(a)(3). “[A]s goes the claim of the named plaintiff, so go the claims of the
class.” Sprague v. Gen. Motors Corp., 133 F.3d 388, 399 (6th Cir. 1998) (en banc). These
No. 19-4112 Mays v. LaRose Page 21
requirements “tend to merge” because “[b]oth serve as guideposts for determining whether . . .
the interests of the class members will be fairly and adequately protected in their absence.”
Dukes, 564 U.S. at 349 n.5 (citation omitted).
The district court certified a class that included:
All individuals arrested and held in detention in Ohio on or after close of business
for the county election board on the Friday prior to the Election who (1) are
eligible to vote in Ohio and are registered to do so, (2) did not vote absentee in
person or by mail prior to their detention, (3) were provided neither an absentee
ballot nor transportation to a voting center nor access to any other method of
voting while held in detention, and (4) will remain in detention through close of
polls on Election Day.
(R. 70, Op. & Order at PageID # 4297, 4308.) This class does not satisfy Rule 23’s commonality
and typicality requirements. The class includes any person police arrest between close of
business on Friday and the close of the polls on Election Day. But class members arrested before
Saturday’s noon cutoff for requesting an absentee ballot have substantially different claims than
class members arrested after the deadline.
Take the named plaintiffs for example. Police arrested Mays shortly after 7 p.m. on the
Saturday before Election Day. Had a hospital admitted Mays at the same time, Ohio law would
have allowed him to submit a late absentee ballot request. See Ohio Rev. Code Ann. § 3509(B).
Because of this disparate treatment, Mays has at least a plausible Equal Protection claim—the
claim we analyze above. Nelson is a different story. Police arrested Nelson around 10 p.m. on
the Friday before Election Day. Had a hospital admitted him at the same time, he would not be
eligible for the unexpectedly hospital-confined exception. That’s because the exception applies
only to electors who themselves, or their minor children, are hospitalized as a result of an
“accident or medical emergency” that occurs after the generally applicable deadline for
requesting an absentee ballot. (R. 55-34, Ohio Election Official Manual at PageID # 3016.) So
Ohio law treated Nelson no differently than if a hospital admitted him on the same night police
arrested him. Thus, his Equal Protection claim is much weaker than Mays’s and would likely be
subject to a different tier of scrutiny. See Burdick, 504 U.S. at 434.
No. 19-4112 Mays v. LaRose Page 22
The district court said “the primary common issue the Court relies on for certification is
whether the Proposed Class is entitled to be treated equally with similarly-situated hospital-
confined voters for purposes of submitting an absentee ballot application.” (R. 70, Op. & Order
at PageID # 4304.) Because Ohio law treats some class members the same as hospital-confined
electors, while also treating some class members differently than their hospital-confined
counterparts, resolution of the district court’s “primary common issue” cannot lead to classwide
resolution in one stroke—the claims of the named plaintiffs do not necessarily resolve the claims
of the entire class. Contra Dukes, 564 U.S. at 350; Sprague, 133 F.3d at 399. So the district
court misapplied the correct legal standard and abused its discretion in certifying a class. Thus,
we reverse the district court’s certification of a class. Normally, we would remand for further
proceedings on the class certification issue. But because we resolve all of Plaintiffs’ claims, any
further proceedings relating to class certification are unnecessary.
VI. Conclusion
For these reasons, we REVERSE the district court’s certification of a class, REVERSE
the district court’s grant of summary judgment to Plaintiffs, and REVERSE the district court’s
denial of summary judgment to the Secretary. The mandate shall issue herewith.