Northeast Ohio Coalition for the Homeless v. Husted

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0359p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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No. 12-3916
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NORTHEAST OHIO COALITION FOR THE -
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Nos. 12-3916/4069
HOMELESS; SERVICE EMPLOYEES
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INTERNATIONAL UNION, LOCAL 1199,
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Plaintiffs-Appellees,
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OHIO DEMOCRATIC PARTY,
Intervenor Plaintiff-Appellee, -
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v.
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JON HUSTED; STATE OF OHIO,
Defendants-Appellants. -
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No. 12-4069
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SERVICE EMPLOYEES INTERNATIONAL UNION -
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LOCAL 1, et al.
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Plaintiffs-Appellees,
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v. -
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JON HUSTED,
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Defendant-Appellant,
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STATE OF OHIO,
Intervenor.
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
Nos. 2:06-cv-00896; 12:-cv-00562—Algenon L. Marbley, District Judge.
Argued: October 1, 2012
Decided and Filed: October 11, 2012
Before: GIBBONS and COOK, Circuit Judges; ROSENTHAL, District Judge*
*
The Honorable Lee H. Rosenthal, United States District Judge for the Southern District of Texas,
sitting by designation.
1
Nos. 12-3916/4069 NE OH Coal. for Homeless, et al. v. Husted, et al. Page 2
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COUNSEL
ARGUED: Stephen P. Carney, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellants in 12-3916. Danielle Leonard, ALTSHULER BERZON
LLP, San Francisco, California, for Appellees in 12-3916. Aaron D. Epstein, OFFICE
OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant in 12-4069.
Danielle Leonard, ALTSHULER BERZON LLP, San Francisco, California, for
Appellees in 12-4069. Frederick D. Nelson, OFFICE OF THE OHIO ATTORNEY
GENERAL, Columbus, Ohio, for Intervenor in 12-4069. ON BRIEF: Stephen P.
Carney, Peggy Corn, Aaron D. Epstein, OFFICE OF THE OHIO ATTORNEY
GENERAL, Columbus, Ohio, for Appellants in 12-3916. Danielle Leonard, Stephen P.
Berzon, Stacey Leyton, Barbara Chisholm, ALTSHULER BERZON LLP, San
Francisco, California, Caroline Gentry, Daniel B. Miller, PORTER, WRIGHT, MORRIS
& ARTHUR LLP, Dayton, Ohio, Subodh Chandra, THE CHANDRA LAW FIRM, LLC,
Cleveland, Ohio, Michael J. Hunter, HUNTER, CARNAHAN, SHOUB, BYARD &
HARSHMAN, Columbus, Ohio, Donald J. McTigue, Mark A. McGinnis, McTIGUE
LAW GROUP, Columbus, Ohio, for Appellees in 12-3916. Aaron D. Epstein, Erin
Butcher-Lyden, Peter K. Glenn-Applegate, OFFICE OF THE OHIO ATTORNEY
GENERAL, Columbus, Ohio, for Appellant in 12-4069. Danielle Leonard, Stephen P.
Berzon, Stacey Leyton, Barbara Chisholm, ALTSHULER BERZON LLP, San
Francisco, California, Michael J. Hunter, Cathrine J. Harshman, HUNTER,
CARNAHAN, SHOUB, BYARD & HARSHMAN, Columbus, Ohio, for Appellees in
12-4069. Frederick D. Nelson, Richard N. Coglianese, Michael J. Hendershot, Stephen
P. Carney, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for
Intervenor in 12-4069. Majeed G. Makhlouf, Joseph W. Boatwright, IV, CUYAHOGA
COUNTY DEPARTMENT OF LAW, Cleveland, Ohio, Bassel C. Korkor, ARNOLD
& PORTER LLP, Washington, D.C., Patrick T. Lewis, BAKER & HOSTETLER LLP,
Cleveland, Ohio, Elizabeth Petrela Papez, Eric M. Goldstein, WINSTON & STRAWN
LLP, Washington, D.C., for Amici Curiae in 12-4069.
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OPINION
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PER CURIAM. These consolidated election law appeals present constitutional
challenges to Ohio’s strict application of its disqualification rules for nonconforming
provisional ballots to those caused by poll-worker error, as well as issues involving the
validity of a federal court’s consent decree that abrogates state law without finding
violations of federal law. At issue are Ohio’s requirements that provisional ballots be
cast in the correct precinct and with a completed voter affirmation, making no exception
Nos. 12-3916/4069 NE OH Coal. for Homeless, et al. v. Husted, et al. Page 3
for wrong-precinct and deficient-affirmation ballots caused by poll-worker error. See
O.R.C. §§ 3505.183(B)(4)(a)(ii)–(iii) and (B)(4)(b)(ii). Given the time-sensitive nature
of these appeals with the November election approaching, we ordered expedited briefing
and conducted a telephonic argument on October 1.
Appeal 12-3916 stems from the district court’s denial of the state’s motion to
vacate a 2010 consent decree that requires the counting of certain wrong-precinct and
deficient-affirmation provisional ballots where poll-worker error caused the
nonconformity. Under the consent decree, this remedy applies only to voters that use
the last four digits of their social security number (“SSN-4 voters”) for identification to
cast their provisional ballots. The Ohio Secretary of State and the State (collectively
“State defendants” or “State appellees”) both appeal this judgment. Appeal 12-4069
arises from the district court’s preliminary injunction that requires the counting of all
wrong-precinct and deficient-affirmation provisional ballots to remedy Ohio’s systemic
exclusion of nonconforming ballots caused by poll-worker error. The Secretary contests
only the deficient-affirmation aspect of the preliminary injunction; the State as
intervenor-appellant challenges the injunction’s wrong-precinct remedy. Absent the
preliminary injunction or consent decree, Ohio would not count any wrong-precinct or
deficient-affirmation provisional ballots, regardless of poll-worker error. See O.R.C.
§§ 3505.183(B)(4)(a)(ii)–(iii) and (B)(4)(b)(ii).
For the following reasons, we sustain part of the preliminary injunction in appeal
12-4069, AFFIRMING the wrong-precinct remedy and REVERSING the deficient-
affirmation remedy. The district court’s judgment in No. 12-3916 is AFFIRMED, and
the matter is REMANDED so that the district court may expeditiously address (1) the
equal protection issue created by the consent decree’s provision for the counting of
deficient-affirmation ballots by SSN-4 voters, and (2) a motion to modify the consent
decree in light of the equal protection concerns raised by the consent decree’s
differential treatment of provisional ballots.
Nos. 12-3916/4069 NE OH Coal. for Homeless, et al. v. Husted, et al. Page 4
I. BACKGROUND
A. Facts Related to Appeal 12-3916: The Consent Decree
As the district court recognized, the consent decree arose from the “turbulent
saga of Ohio’s provisional voting regime” that began in 2006 when Ohio enacted
comprehensive election reforms. (No. 2:12-CV-562, R. 67, Plenary Op. & Order at 2.)
Because we previously detailed the consent decree’s history in Hunter v. Hamilton
County Board of Elections, 635 F.3d 219, 223–24 (6th Cir. 2011), we review only the
relevant parts.
In 2006, the Northeast Ohio Coalition for the Homeless and the Service
Employees International Union Local 1199 (collectively “NEOCH plaintiffs” or
“NEOCH appellees”) filed suit against Ohio’s Secretary of State challenging numerous
aspects of Ohio’s new voter-identification laws. After lengthy negotiations, the NEOCH
plaintiffs settled their claims with then-Secretary of State Jennifer Brunner by entering
into a consent decree. Though the consent decree stopped short of finding constitutional
violations, it provided the following injunctive relief for SSN-4 voters: the State would
not reject provisional ballots that, due to poll-worker error, were cast (1) in the wrong
precinct but correct polling place, or (2) with nonconforming or incomplete ballot
affirmations. (No. 2:06-cv-896, R. 210, Consent Decree ¶ 5(b)(v), (vi).) As explained
in Hunter,
The consent decree, in effect, carved out an exception for counting
provisional ballots otherwise invalid under Ohio law if the deficiency
was due to poll-worker error—albeit a narrow one limited to those
provisional ballots cast by a voter who uses the last four digits of his or
her Social Security number as identification.
635 F.3d at 224. By its terms, the consent decree remains in effect until June 30, 2013
unless modified.
The State did not object to the consent decree’s remedy until the Ohio Supreme
Court issued a 2011 decision holding that Ohio’s election laws offered no protections
for wrong-precinct provisional ballots caused by poll-worker error. State ex rel. Painter
Nos. 12-3916/4069 NE OH Coal. for Homeless, et al. v. Husted, et al. Page 5
v. Brunner, 941 N.E.2d 782, 794 (Ohio 2011) (per curiam). After Painter, the State
defendants returned to district court seeking to vacate the consent decree, citing a
conflict between state law and the consent decree’s remedies. Moreover, the State
defendants argued that the consent decree was void ab initio because the Secretary of
State lacked the unilateral authority to abrogate state law in the absence of a federal
constitutional violation. (Again, the consent decree did not find constitutional
violations.) In the meantime, a different group of plaintiffs, whose claims we will discuss
next, challenged the consent decree’s preferential treatment of SSN-4 voters in separate
litigation. Responding to this emerging issue, the NEOCH plaintiffs also moved to
modify the consent decree, seeking to expand its remedy to all provisional voters (not
just SSN-4 voters) in order to prevent its disparate vote-counting standards from causing
constitutional violations.
By opinion and order of July 9, 2012, the district court denied the State
defendants’ motion both on issue preclusion grounds and on the merits. Specifically, the
district court rejected the State defendants’ argument that the consent decree
irreconcilably conflicted with state law, as pronounced in Painter and State ex rel.
Skaggs v. Brunner, 900 N.E.2d 982 (Ohio 2008). Citing Northridge Church v. Charter
Twp. of Plymouth, 647 F.3d 606, 614 (6th Cir. 2011), the district court also held that
Federal Rule of Civil Procedure 60(b) governed the State defendants’ motion to vacate
the consent decree. Because State defendants failed to show that the consent decree was
no longer necessary to prevent constitutional violations, the district court held that they
had not shown grounds for relief under Rule 60(b)(4) and (b)(5). The district court
withheld judgment on the NEOCH plaintiffs’ motion to expand the consent decree at this
time.
The State defendants timely appealed. The Ohio Democratic Party, which
intervened as a co-plaintiff at the district court, joins the NEOCH plaintiffs as appellees.
Nos. 12-3916/4069 NE OH Coal. for Homeless, et al. v. Husted, et al. Page 6
B. Facts Related to Appeal 12-4069: The Preliminary Injunction
On June 22, 2012, several unions and a community organizing group
(collectively the “SEIU plaintiffs” or “SEIU appellees”)1 filed suit against Ohio’s
current Secretary of State Jon Husted, as well as members of the Cuyahoga County,
Franklin County, and Hamilton County Boards of Elections. The SEIU plaintiffs allege
that Ohio Rev. Code §§ 3505.183(B)(4)(a)(ii)–(iii) and (B)(4)(b)(ii), as interpreted by
the Ohio Supreme Court, automatically disqualified wrong-precinct and deficient-
affirmation provisional ballots, despite evidence that poll-worker error caused the ballot
deficiencies. According to the SEIU plaintiffs, Ohio’s strict application of the
disqualification rules to ballot deficiencies caused by poll-worker error violated, inter
alia, the Fourteenth Amendment’s Equal Protection and Due Process Clauses. The
SEIU plaintiffs also alleged that the consent decree’s preferential treatment of SSN-4
voters’ wrong-precinct and deficient-affirmation ballots violated equal protection. The
SEIU plaintiffs moved for a preliminary injunction, arguing that the relevant statutory
provisions impermissibly burdened the fundamental right to vote without serving
sufficient state interests. To remedy this problem, the SEIU plaintiffs proposed
“remaking” wrong-precinct provisional ballots to count only “up-ballot” votes—i.e.,
votes in eligible races.
The district court held an evidentiary hearing on July 30, 2012, and issued its
preliminary injunction on August 27, 2012. As necessary for the issuance of a
preliminary injunction, the court’s 58-page Plenary Opinion and Order assessed the
SEIU plaintiffs’ likelihood of success on the merits of their constitutional claims, as well
as the equitable factors necessary for injunctive relief: irreparable harm, harm to others,
1
The plaintiffs consisted of the Service Employees International Union, Local 1; the United Steel,
Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International
Union; the International Union, United Automobile, Aerospace and Agricultural Implement Workers of
America, including Locals 863 and 1005; and the Ohio Organizing Collaborative.
Nos. 12-3916/4069 NE OH Coal. for Homeless, et al. v. Husted, et al. Page 7
and the public interest. The court premised injunctive relief upon three likely equal
protection violations and a likely due process violation.2
1. Equal Protection: Wrong-Precinct Ballots Caused by Poll-Worker Error
Beginning with the SEIU plaintiffs’ wrong-precinct ballots claim, the court found
reliable evidence that Ohio’s county election boards disqualified thousands of wrong-
precinct ballots in each of Ohio’s three most recent elections. Specifically, the court
found that Ohio rejected more than 14,000 wrong-precinct ballots in 2008 and 11,000
more in 2010, with wrong-precinct rejections occurring in the vast majority of Ohio
counties. (Plenary Op. & Order at 26 & n.28, 27 (counting 14,335 wrong-precinct
rejections in 2008 and 11,775 in 2010).) And in the mid-cycle election of 2011, which
involved no federal races, Ohio kept specific data regarding right-place/wrong-precinct
ballots revealing that Ohio disqualified more than 1,800 such ballots. But for the
consent decree entered in the NEOCH litigation, Ohio would have disqualified another
1,500 such ballots. (Id. at 25–26 (finding that Ohio disqualified 1,826 of 3,380
right-place/wrong-precinct ballots in 2011).) This data led the court to conclude that
“[w]hile the number and frequency of wrong-precinct ballot disqualifications vary
county to county, the problem as a whole is systemic and statewide.” (Id. at 26.) The
court noted that “[m]uch of the factual basis upon which the Court relies for its findings
is uncontested, or has already been established by this Court or the courts in [the Hunter
litigation].” (Id. at 25.)
Though the Secretary did not dispute the accuracy of these statistics, it
challenged their relevance in light of recent efforts to improve Ohio’s provisional ballot
system. The Secretary also argued that reasons other than poll-worker error may have
caused some of the wrong-precinct ballots. The district court rejected these arguments,
citing the failure of previous state directives and the absence of evidence that voters
disobeyed poll-worker instructions regarding voting precincts. “No party,” it stated,
2
The district court rejected the SEIU plaintiffs’ third equal protection claim asserting a greater
burden on voters in more populous urban counties, finding insufficient evidence that Ohio’s
disqualification of wrong-precinct ballots disproportionately affects voters in those counties. The SEIU
appellees do not contest this finding.
Nos. 12-3916/4069 NE OH Coal. for Homeless, et al. v. Husted, et al. Page 8
“has identified a single example, from the past four years’ elections, of a wrong-precinct
provisional ballot being cast because the voter refused to vote in the correct precinct.”
(Id. at 29.) Invoking poll workers’ statutory mandate to direct voters to the correct
precinct and inform them that wrong-precinct votes will not count, see O.R.C.
§ 3505.181(C)(1), the district court reasoned, “It is common sense that no rational voter
who arrives at the correct polling place would ever refuse to cast a provisional ballot in
the correct precinct . . . .” (Plenary Op. & Order at 29.) “Based on the record evidence
provided thus far,” the court concluded that “Plaintiffs ha[d] established a strong
likelihood that thousands of lawfully-registered voters will be completely deprived of
their right to vote under Ohio Rev. Code § 3505.183(B)(4)(a)(ii) in the upcoming
election because of poll-worker error.” (Id. at 30.)
Deeming this burden “arbitrary,” “irreversible,” and “severe,” the court
proceeded to weigh the state interests justifying the automatic disqualification of wrong-
precinct provisional ballots under the balancing test set forth in Anderson v. Celebrezze,
460 U.S. 780, 789 (1983), and Burdick v. Takushi, 504 U.S. 428, 434 (1992). To justify
the automatic-disqualification rule, the Secretary relied on the “significant and
numerous” advantages of the precinct voting system articulated in Sandusky County
Democratic Party v. Blackwell, 387 F.3d 565, 569 (6th Cir. 2004) (per curiam):
(1) capping the number of voters at a polling location; (2) limiting the precinct ballot to
the applicable federal, state, and local elections a citizen may vote in, which has the
result of (3) making the precinct ballot less confusing; (4) simplifying election
administration and oversight, so as to minimize election fraud; and (5) enabling the state
to place polling locations closer to voter residences. The court deemed the first, third,
and fifth Sandusky factors inapposite, because the automatic-disqualification rule
affected voters who arrived at the right polling location and did nothing to make
provisional ballots less confusing. The second Sandusky factor—limiting precinct
ballots to eligible races—somewhat justified the disqualification of wrong-precinct
ballots in the court’s view, inasmuch as the State has an interest in preventing ineligible
voters from casting votes in the wrong races. But because the SEIU plaintiffs sought to
“remake” wrong-precinct ballots to count only “up-ballot” votes—a practice the court
Nos. 12-3916/4069 NE OH Coal. for Homeless, et al. v. Husted, et al. Page 9
noted had been employed by the consent decree since 2010—the court found no
likelihood of vote dilution or detrimental effect on the precinct voting system. Finally,
the court rejected for lack of evidence the Secretary’s purported interest in election
administration, monitoring, and recordkeeping. Citing dicta from this court’s decision
in Hunter, see 635 F.3d at 243 (expressing “substantial constitutional concerns regarding
[Ohio’s] invalidation of votes cast in the wrong precinct due solely to poll-worker
error”), the district court concluded that the SEIU plaintiffs “have submitted reliable,
uncontroverted evidence demonstrating that a discrete class of prospective voters will
be severely burdened by [the disqualification of wrong-precinct provisional ballots
caused by poll-worker error].” (Plenary Op. & Order at 39–40.)
In addition to its Anderson/Burdick balancing, the district court found Ohio’s
disqualification of right-place/wrong-precinct provisional ballots to constitute invidious
discrimination because the restriction bore no relation to those voters’ qualifications.
See, e.g., Harper v. Va. Bd. of Elections, 383 U.S. 663, 666–67 (1966). Though Ohio’s
disqualification rule differed from the “archetypal case of an invidious restriction”—the
poll taxes at issue in Harper—the district court reasoned that “[l]ike poll taxes . . . any
rational basis for rejecting wrong-precinct ballots of registered voters due to poll-worker
error is equally unreasonable,” because the restriction “is unrelated to the prospective
Plaintiffs’ voter qualifications.” (Plenary Op. & Order at 41.)
2. Equal Protection: Deficient-Affirmation Ballots Caused by Poll-Worker Error
Turning to the SEIU plaintiffs’ claim regarding deficient-affirmation ballots, the
court cited 2011 election data showing that Ohio rejected 568 provisional ballots due to
such technical deficiencies as “a missing or misplaced printed name or voter signature,
or the voter’s signature was deemed not to match the exemplar on file with the Board.”
(Id. at 43.) The court attributed these deficiencies to poll-worker error “because it is the
poll worker’s duty to ensure that provisional ballots are cast with a validly completed
ballot envelope and affirmation.” (Id. (citing O.R.C. §§ 3505.181(B)(2)–(3), 3505.182).)
Still, the court conceded that the class of affected voters “is likely to be significantly
smaller” than the right-place/wrong-precinct ballots, and that the burden on these voters
Nos. 12-3916/4069 NE OH Coal. for Homeless, et al. v. Husted, et al. Page 10
“is arguably less severe” because “the individual voter has a greater degree of control
over whether the ballot envelope contains the required elements.” (Id. at 44.) While it
could not “quantify the precise magnitude of the burden imposed by this law’s restriction
on the class of affected voters,” it deemed the State’s interests—the same Sandusky
factors discussed above— insufficient to support the restriction under the
Anderson/Burdick test. (Id. at 44–45.)
The Secretary argued that new directives, especially Directive No. 2012-01,
mitigated the burden on these voters, but the district court disagreed, stating that the
directive “instructs boards of elections that provisional ballots are not to be rejected only
where the poll worker fails to fill out his or her portion of the provisional envelope.” (Id.
at 45.)
3. Equal Protection: The Consent Decree’s Preferential Treatment of SSN-4
Ballots
Next, the district court agreed with the SEIU plaintiffs that Ohio’s differential
treatment of wrong-precinct ballots, depending on the form of identification used to cast
the ballot, violated equal protection. Recognizing that the NEOCH consent decree
provided a different vote-counting standard for SSN-4 provional ballots (allowing a
chance to prove poll-worker error and have the vote counted) and all other provisional
ballots (not), the court inquired whether state interests justified the preferential
treatment. The State—by now seeking to vacate the consent decree—offered none, and
the court agreed, finding “[t]here is no reason for treating provisional ballots differently
based on the type of identification used.” (Id. at 49.)
4. Due Process: Wrong-Precinct Ballots Caused by Poll-Worker Error
Last, the court adopted dicta from the post-remand judgment in the Hunter
litigation that Ohio’s strict disqualification of deficient ballots, regardless of poll-worker
error, rendered the election system “fundamentally unfair,” in violation of due process.
See Hunter v. Hamilton Cnty. Bd. of Elections, 850 F. Supp. 2d 795, 847 (S.D. Ohio
2012). Relying on the same evidence discussed in the equal protection claims, the
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district court found a strong likelihood that the SEIU plaintiffs would prevail on the due
process claim.
5. Injunctive Relief & Staying the NEOCH Plaintiffs’ Motion to Modify the
Consent Decree
Having found a likelihood of success on the merits of these claims, the district
court determined that the equitable factors favored the issuance of a preliminary
injunction. Accordingly, the court granted a preliminary injunction requiring the
counting of wrong-precinct and deficient-affirmation provisional ballots, unless the State
could prove that the poll worker properly advised the voter to cast the ballot in the
correct precinct and the voter refused. Having granted the broader relief of the
preliminary injunction in the SEIU litigation, the district court stayed the NEOCH
plaintiffs’ motion to expand the consent decree in the NEOCH litigation, deeming that
issue moot so long as the preliminary injunction remained in effect.
The Secretary now appeals the deficient-affirmation aspect of the preliminary
injunction, and the State intervenes to appeal the wrong-precinct remedy.3 The Citizens
Reform Association of Cuyahoga County and individual voters appear as amici
(collectively “CRACC amici”) in favor of the State appellants,4 and Common Cause
Ohio, Cuyahoga County, and the League of Women Voters of Ohio appear as amici for
the SEIU appellees. We have jurisdiction to hear both of these appeals. 28 U.S.C.
§ 1292.
3
Alternatively, the State prematurely filed a separate appeal (12-4070) of the district court’s
preliminary injunction prior to becoming a party in the matter. We dismissed that appeal, but granted the
State’s motion to intervene in appeal 12-4069.
4
CRACC amici previously attempted permissive intervention in the district court and intervention
as of right in appeal 12-4069. The district court ruled their application untimely, and CRACC amici have
appealed that ruling. (Appeal 12-4079.) Because that appeal remains pending and is the proper avenue
to address the intervention arguments raised in the district court, we denied their motion to intervene on
appeal and permitted their alternative request to file amicus briefs.
Nos. 12-3916/4069 NE OH Coal. for Homeless, et al. v. Husted, et al. Page 12
II. SCOPE OF PRELIMINARY INJUNCTION: THE WRONG-PRECINCT
REMEDY
Before we may assess the propriety of the preliminary injunction, we must
resolve a dispute over the scope of its relief for wrong-precinct ballots. The district
court’s plenary opinion and order required the Secretary to instruct Ohio’s county
election boards not to reject provisional ballots “cast . . . in the wrong precinct, unless
the poll worker who processed the voter’s provisional ballot” directed the voter to the
correct precinct, informed the voter of the ramifications of casting a wrong-precinct vote
(disqualification), and the voter nevertheless insisted on casting the ballot in the wrong
precinct. (Plenary Op. & Order at 56–57.) The SEIU appellees read this remedy to
apply to all wrong-precinct ballots, regardless of whether the voter cast his or her ballot
at the correct polling location. The State counters that the remedy applies only to
provisional ballots cast at the correct polling place, citing the district court’s later
clarifying orders. The Secretary, who does not appeal this aspect of the preliminary
injunction, ostensibly adopted the State’s position on the scope of the preliminary
injunction in Directive Number 2012-44, noting that the injunction’s wrong-precinct
remedy applied only to “ballots cast in the correct polling place but wrong precinct.”
See SOS Directive No. 2012-44 (referring to the affected ballots as “Right
Church/Wrong Pew” ballots). With one small caveat, we agree with the State.
The State correctly notes that significant portions of the district court’s opinion
specifically address the right-place/wrong-precinct problem. For instance, the district
court’s burden analysis cites statistics for right-place/wrong-precinct provisional ballots
cast during the 2011 general election, concluding that “[t]here is, then, a high statistical
probability that in the upcoming election thousands of lawfully-registered voters will
arrive at the correct polling place only to receive a provisional ballot from the poll
worker for the wrong precinct.” (Plenary Op. & Order at 26.)5 Elsewhere, the court
states that “[t]he evidence further confirms that, of the thousands of rejected wrong-
5
The statistics from prior elections do not distinguish between right-place/wrong-precinct ballots
and wrong-place/wrong-precinct ballots because “[t]he Secretary did not begin requiring Boards to
separately report [those numbers] until the 2011 general election.” (Plenary Op. & Order at 26 n.27
(citation omitted).)
Nos. 12-3916/4069 NE OH Coal. for Homeless, et al. v. Husted, et al. Page 13
precinct/correct location provisional ballots, the vast majority will be disqualified as a
result of poll-worker error.” (Id. at 28–29.) And later on in its invidiousness analysis,
the court notes that “[t]he Plaintiffs sue on behalf of registered voters who arrive in the
correct polling place, and only through an intervening error violate the precinct
requirement.” (Id. at 41.)
Admittedly, the SEIU plaintiffs did not confine their requested relief to right-
place/wrong-precinct provisional ballots. (See R. 63, SEIU Pls.’ Second Am. Compl.
at 35–36; R. 4, Mot. Prelim. Inj. at 4–5.) And certain aspects of the district court’s
opinion appeared to follow this lead—namely, the court’s summary of the SEIU
plaintiffs’ requested relief and the court’s “order” of “Appropriate Injunctive Relief.”
(Plenary Op. & Order at 12, 56–57.) But if any doubt remained, the district court’s
framing of its equal-protection analysis settles the matter: “It is the particular burden
imposed by Ohio’s prohibition of wrong-precinct ballots on the rights of a ‘discrete class
of prospective voters’—those who arrive at the correct polling place but are misdirected
due to poll-worker error—against which the State’s asserted interests must be weighed.”
(Id. at 34 (emphasis added) (citation omitted); see also id. at 37 n.56 (weighing state
interests in disqualifying right-place/wrong-precinct provisional ballots).)
Two additional pieces of extrinsic evidence support this view. First, the district
court issued three post-injunction orders—two scheduling orders and an order granting
the State’s motion to intervene—that characterized the preliminary injunction’s
wrong-precinct remedy as extending no further than ballots miscast from the correct
polling place. Second, the SEIU appellees conceded at oral argument that they never
sought to have wrong-county provisional ballots counted, but that would be the practical
effect of granting their interpretation of the district court’s wrong-precinct remedy.
Rather than presume the district court intended a “vote anywhere” remedy, we
take the court at its word that it considered the constitutionality of the State’s
disqualification of right-place/wrong-precinct provisional ballots. We therefore read the
district court’s wrong-precinct remedy to encompass only those votes. Consequently,
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our remaining discussion of wrong-precinct ballots and the wrong-precinct remedy
addresses only right-place/wrong-precinct provisional ballots.6
We do note, however, that the State’s interpretation fails to account for
provisional ballots cast at the county boards of election. Because Ohio law authorizes
the casting of provisional ballots at the county boards, see O.R.C. § 3505.181(C)(2)
(disqualifying certain provisional ballots where “the individual refuses to travel to the
polling place for the correct jurisdiction or to the office of the board of elections to cast
a ballot” (emphasis added)), we see no reason to distinguish these right-place/wrong-
precinct provisional ballots from those cast at precinct polling locations. In both
instances, the voter appears at a state-authorized polling location, but the alleged poll-
worker error results in the casting of a wrong-precinct provisional ballot. Accordingly,
we assume the district court’s wrong-precinct remedy includes these right-place/wrong-
precinct provisional ballots.
III. THE PRELIMINARY INJUNCTION (Appeal 12-4069)
A. Standard of Review
Our review focuses on the four factors a plaintiff must establish to receive
injunctive relief:
(1) whether the movant has a strong likelihood of success on the merits;
(2) whether the movant would suffer irreparable injury without the
injunction;
(3) whether issuance of the injunction would cause substantial harm to
others; and
(4) whether the public interest would be served by the issuance of the
injunction.
Hunter, 635 F.3d at 233 (quoting Certified Restoration Dry Cleaning Network, L.L.C.
v. Tenke Corp., 511 F.3d 535, 542 (6th Cir. 2007)). At the preliminary injunction stage,
6
Our ruling does not preclude the SEIU appellees or others from seeking broader relief for poll-
worker-induced wrong-place/wrong-precinct provisional ballots upon a showing that Ohio’s law
unconstitutionally burdens those voters’ rights. As those issues are not before us, we express no view on
their merits.
Nos. 12-3916/4069 NE OH Coal. for Homeless, et al. v. Husted, et al. Page 15
“a plaintiff must show more than a mere possibility of success,” but need not “prove his
case in full.” Certified Restoration Dry Cleaning Network, 511 F.3d at 543 (citations
omitted). “[I]t is ordinarily sufficient if the plaintiff has raised questions going to the
merits so serious, substantial, difficult, and doubtful as to make them a fair ground for
litigation and thus for more deliberate investigation.” Six Clinics Holding Corp., II v.
Cafcomp Sys., Inc., 119 F.3d 393, 402 (6th Cir. 1997) (citation omitted).
The State argues for a higher evidentiary burden, characterizing the SEIU
plaintiffs’ claims as presenting only a facial attack on Ohio Rev. Code
§§ 3505.183(B)(4)(a)(ii)–(iii) and (B)(4)(b)(ii). No doubt, certain aspects of the SEIU
plaintiffs’ Second Amended Complaint appear to present facial challenges, but others
advance as-applied challenges focusing on these statutes’ failure to make exception for
poll-worker error. (See SEIU Pls.’ Second Am. Compl. ¶¶ 79, 82 (challenging the
State’s rationale for excluding wrong-precinct and deficient-affirmation ballots caused
by poll-worker error).) We read the district court’s opinion as sustaining these as-
applied claims and therefore limit our review accordingly.
Though we consider the ultimate decision to issue the injunction under a
deferential abuse-of-discretion standard, we assess the underlying legal conclusions de
novo and factual findings for clear error. Obama for America v. Husted, — F.3d —,
Nos. 12-4055/4076, slip op. at 6 (6th Cir. 2012). Consequently, we give fresh review
to the district court’s legal conclusions regarding a plaintiff’s likelihood of success on
the merits. Id. at 7; Hunter, 635 F.3d at 233. An injunction “will seldom be disturbed
unless the district court relied upon clearly erroneous findings of fact, improperly
applied the governing law, or used an erroneous legal standard.” Mascio v. Pub. Emps.
Ret. Sys. of Ohio, 160 F.3d 310, 312 (6th Cir. 1998).
B. The Wrong-Precinct Ballots
1. Likelihood of Success on the Merits
The district court identified three strands of likely constitutional violations
related to the wrong-precinct ballots as requiring injunctive relief: the unreasonableness
Nos. 12-3916/4069 NE OH Coal. for Homeless, et al. v. Husted, et al. Page 16
and fundamental unfairness of disqualifying wrong-precinct ballots caused by poll-
worker error (equal protection and due process), and the disparate treatment of deficient
provisional ballots under the consent decree (equal protection). Having reviewed the
record afresh, we agree on all counts.
a. Equal Protection & Disqualification Despite Poll-Worker Error
Our Constitution accords special protection for the fundamental right of voting,
Harper, 383 U.S. at 670, recognizing its essential role in the “preservati[on] of all
rights,” Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). Because “[o]ther rights, even the
most basic, are illusory if the right to vote is undermined,” Wesberry v. Sanders,
376 U.S. 1, 17 (1964), “‘[t]he right to vote is protected in more than the initial allocation
of the franchise. Equal protection applies as well to the manner of its exercise,’” League
of Women Voters v. Brunner, 548 F.3d 463, 477 (6th Cir. 2008) (quoting Bush v. Gore,
531 U.S. 98, 104 (2000)). At the same time, the Constitution vests states with the
authority to prescribe “[t]he Times, Places and Manner of holding Elections for Senators
and Representatives.” U.S. Const. Art. I, § 4, cl. 1. “[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). When equal protection challenges ask us to resolve these
competing interests, we calibrate the equal protection standard to “[t]he precise character
of the state’s action and the nature of the burden on voters.” Obama for America, Nos.
12-4055/4076, slip op. at 8 (citing Biener v. Cailo, 361 F.3d 206, 214 (3d Cir. 2004) for
the proposition that “[t]he scrutiny test depends on the [regulation’s] effect on [the
plaintiff’s] rights.”).
While a rational basis standard applies to state regulations that do not burden the
fundamental right to vote, strict scrutiny applies when a state’s restriction imposes
“severe” burdens. Id. (citing McDonald v. Bd. of Election Comm’rs, 394 U.S. 802,
807–09 (1969) and Burdick, 504 U.S. at 434). For the majority of cases falling between
these extremes, we apply the “flexible” Anderson/Burdick balancing test. Id.; see also
Nos. 12-3916/4069 NE OH Coal. for Homeless, et al. v. Husted, et al. Page 17
Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 189–91 (2008) (Stevens, J., joined
by Roberts, C.J., and Kennedy, J., announcing the judgment of the Court); id. at 211(Souter, J., joined by Ginsburg, J., dissenting).
The State defendant, intervening as appellant, resists this standard, arguing that
Ohio’s automatic-disqualification rule for wrong-precinct ballots treats all voters equally
and therefore does not “involve any classification that could violate the equal protection
standard.” But the State overlooks the fact that a clear majority of the Supreme Court
in Crawford applied some form of Burdick’s burden-measuring equal protection
standard to Indiana’s facially neutral voter-identification requirement. See 553 U.S. at189–91 (Stevens, J., announcing the judgment of the Court), 204 (Scalia, J., joined by
Alito and Thomas, JJ., concurring in the judgment) (“To evaluate a law respecting the
right to vote—whether it governs voter qualifications, candidate selection, or the voting
process—we use the approach set out in Burdick . . . .”), 211 (Souter, J., dissenting).
Because the SEIU plaintiffs “demonstrated that their right to vote is . . . burdened by”
Ohio’s law that rejects wrong-precinct ballots regardless of poll-worker error, “[t]he
Anderson-Burdick standard . . . applies.” Obama for America, Nos. 12-4055/4076, slip
op. at 10 (rejecting Ohio’s attempt to limit the Anderson/Burdick test to First
Amendment free association claims and Fourteenth Amendment due process claims).
Following the Anderson/Burdick test,
[we] must weigh “the character and magnitude of the asserted injury to
the rights protected by the First and Fourteenth Amendments that the
plaintiff seeks to vindicate” against “the precise interests put forward by
the State as justifications for the burden imposed by 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)). “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.” Obama for America, Nos. 12-4055/4076, slip op. at 9 (internal
Nos. 12-3916/4069 NE OH Coal. for Homeless, et al. v. Husted, et al. Page 18
quotation marks omitted) (quoting Crawford, 553 U.S. at 190 (Stevens, J., announcing
the judgment of the Court)).
i. The Burden on Provisional Voters
Here, the district court identified a substantial burden on provisional voters. The
court’s factual findings detail Ohio’s “systemic” disqualification of thousands of wrong-
precinct provisional ballots and a strong likelihood that the majority of these miscast
votes result from poll-worker error. To recap, Ohio tossed out more than 14,000 wrong-
precinct ballots in 2008 and 11,000 more in 2010, with such rejections occurring across
the state. And in the mid-cycle election of 2011, Ohio disqualified more than 1,800
right-place/wrong-precinct ballots—1,500 fewer than it would have rejected in the
absence of NEOCH consent decree.7 Like the Secretary before the district court, the
State intervening as appellant does not contest the accuracy of this data, but emphasizes
that wrong-precinct ballots make up a small percentage of the total votes cast. (State Br.
at 12 (explaining that wrong-precinct ballots made up 0.248% of the ballots cast in the
2008 election, with right-place/wrong-precinct ballots comprising an even smaller
share).)
Though the district court did not make specific factual findings regarding the
incidence of poll-worker error, it found such error evident in poll workers’ statutory duty
to direct voters to the correct polling place. See O.R.C. § 3505.181(C)(1).8 As the State
7
These findings regarding the statewide disqualification of wrong-precinct ballots amplify the
countywide evidence established in Hunter. See Hunter, 635 F.3d at 237 (recognizing 269 right-
place/wrong-precinct ballots in the November 2010 election for Hamilton County Juvenile Court Judge).
8
This provision states:
If an individual declares that the individual is eligible to vote in a jurisdiction other
than the jurisdiction in which the individual desires to vote, or if, upon review of the
precinct voting location guide using the residential street address provided by the
individual, an election official at the polling place at which the individual desires to
vote determines that the individual is not eligible to vote in that jurisdiction, the
election official shall [1] direct the individual to the polling place for the jurisdiction
in which the individual appears to be eligible to vote, [2] explain that the individual
may cast a provisional ballot at the current location but the ballot will not be counted
if it is cast in the wrong precinct, and [3] provide the telephone number of the board
of elections in case the individual has additional questions.
O.R.C. § 3505.181(C)(1) (emphasis and brackets added).
Nos. 12-3916/4069 NE OH Coal. for Homeless, et al. v. Husted, et al. Page 19
acknowledges, Ohio law requires poll workers to “determine whether an individual is
eligible to vote in a specific precinct, and direct them to the precinct in which ‘the
individual appears to be eligible to vote.’” (State Br. at 12 (quoting O.R.C.
§ 3505.181(C)(1)).) See also Hunter, 635 F.3d at 243 (“Ohio has created a system in
which state actors (poll workers) are given the ultimate responsibility of directing voters
to the right location to vote.”). The court also cited the proliferation of multi-precinct
polling locations in Ohio’s counties as increasing the likelihood of poll-worker error
causing right-place/wrong-precinct ballots. (See Plenary Op. & Order at 6 n.10 (finding,
as of the 2012 primaries, shared-polling place rates for the following counties’ election
precincts: Butler, 95%; Cuyahoga, 94%; Greene, 100%; Franklin County, 68%; Lorain,
90%; Montgomery, 88%; Stark County, 71%).)
In addition to these findings, the SEIU plaintiffs presented voluminous evidence
that poll workers give voters wrong-precinct ballots for a number of reasons, ranging
from misunderstanding counties’ precinct location guides to failing to understand the
vote-disqualifying ramifications of handing out wrong-precinct ballots. This recent
sample of Franklin County’s precinct location guide, which shows how different house
numbers on the same street end up in different precincts, almost at random, demonstrates
how easily poll workers can make mistakes under the pressures of election day.
Nos. 12-3916/4069 NE OH Coal. for Homeless, et al. v. Husted, et al. Page 20
(R. 13-12 at 9.) The Secretary failed to present evidence to the district court that other
factors besides poll-worker error caused wrong-precinct ballots, and the State offers
none now. Given this record and the clear legal duty imposed on poll workers by Ohio
law, the district court deduced:
As a matter of law, if a person casts a provisional ballot in the wrong
precinct, it is always going to be due to poll-worker error unless the poll
worker has instructed the individual where the correct polling location is
and that individual “refuses to travel to the polling place for the correct
[precinct] or to the office of the board of elections to cast a ballot.” Ohio
Rev. Code §§ 3505.181(C)(2), 181(E)(1). Such an act would be an
irrational and futile exercise by the voter, because, as required by Ohio
Rev. Code § 3505.181(C)(1), the poll worker must first inform him that
if he insists on voting in the wrong precinct, his ballot will not be
counted.
Nos. 12-3916/4069 NE OH Coal. for Homeless, et al. v. Husted, et al. Page 21
(Plenary Op. & Order at 8.) Because the State offers no evidence of alternative causes,
we find no clear error with the district court’s factual conclusion that most right-
place/wrong-precinct ballots result, and will continue to result, from poll-worker error.9
The application of Ohio Rev. Code §§ 3505.183(B)(4)(a)(ii) and (B)(4)(b)(ii) to
right-place/wrong-precinct ballots caused by poll-worker error effectively requires voters
to have a greater knowledge of their precinct, precinct ballot, and polling place than poll
workers. Absent such omniscience, the State will permanently reject their ballots
without an opportunity to cure the situation. The mere fact that these voters cast
provisional ballots does not justify this additional burden; as the district court explained,
Ohio law now requires thirteen different categories of voters to cast provisional ballots,
ranging from individuals who do not have an acceptable form of identification to those
who requested an absentee ballot or whose signature was deemed by the precinct official
not to match the name on the registration forms. See Ohio Rev. Code
§ 3505.181(A)(1)–(13).
ii. The State’s Interests: Sandusky Factors
Faced with this burden on voters, the State falls back on the same Sandusky
factors rejected by the district court. First, the State objects to the district court’s
conclusion that the first Sandusky factor—capping the number of voters at a polling
place—does not support disqualifying right-place/wrong-precinct ballots. We find no
9
We note that the Secretary, in implementing the district court’s wrong-precinct remedy, has
prescribed a new election form for poll workers to document recalcitrant voters that refuse to go to the
correct polling location: SOS Form 12-D. This form, known as the “Provisional Voter Precinct
Verification Form,” identifies five steps that poll workers must take “whenever a voter’s name does not
appear in the signature poll book or poll list, the voter is in the wrong precinct of the correct multiple-
precinct polling place and the voter insists on casting a provisional ballot in the wrong precinct.” First,
the poll worker must “[f]ind the voter’s address in the Voting Location Guide.” At steps two and three,
the poll worker must record the voter’s correct precinct and the address of the correct polling place on the
form. The last two steps involve instructing the voter to go to the correct precinct to cast a provisional
ballot and informing the voter that casting a wrong-precinct ballot at the current location will result in the
disqualification of the ballot. If the voter still insists on casting a ballot in the wrong precinct after
receiving this advice, then the poll worker will complete the form’s affirmation “under penalty of election
falsification” to document that the voter disregarded the advice provided in the five steps. The poll worker
will then attach the completed form to the miscast ballot for purposes of verification. The county board
of election will reject the miscast ballot if the poll worker directed the voter to the correct precinct.
We do not view this measure as alleviating the SEIU plaintiffs’ burden of establishing a likely
constitutional violation, but we do find it relevant to weighing the state’s asserted interests in preserving
its strict disqualification rules in the face of SEIU’s poll-worker-error claims.
Nos. 12-3916/4069 NE OH Coal. for Homeless, et al. v. Husted, et al. Page 22
error here. By definition, right-place/wrong-precinct ballots are cast at the right polling
location, demonstrating that these voters attempted to comply with the State’s precinct
requirement. Of course, if a recalcitrant voter insists on casting a wrong-precinct ballot
after making the effort to arrive at the correct polling place, the State would have a
strong interest in rejecting that non-compliant vote. But the State offers no evidence or
logical support for this phenomenon, while the SEIU plaintiffs provided substantial
evidence of poll-worker error.
As for the second and third Sandusky factors, the State argues that it has a strong
interest in limiting precinct ballots to eligible races, which facilitates the administration
of elections and simplifies the ballot for voters. No disagreement there, but these
interests do not justify the precise restriction challenged here: the exclusion of wrong-
precinct ballots caused by poll-worker error. Additionally, the State asserts “an interest
in avoiding a circumstance in which voters are in effect given the option of surrendering
their right to vote in ‘down ballot,’ precinct-specific races in exchange for the ability to
cast ‘up ballot’ votes in a (perhaps less busy) precinct other than their own.” (State Br.
at 48.) Again, the State offers no evidence for this speculation. We have no reason to
think that voters, who will be correctly advised by poll workers about their assigned
precinct, see O.R.C. § 3505.181(C)(1) and SOS Directive No. 2012-44,10 will opt to roll
the dice in a less busy precinct on pain of having their votes disqualified. The State
offers no reason to think that the district court’s limited relief for the narrow class of
right-place/wrong-precinct ballots caused by poll-worker error—which has no effect on
the design of precinct ballots—will undermine Ohio’s precinct system or make ballots
more confusing.
Turning to the fourth Sandusky factor, the State claims that the district court’s
remedy makes it more difficult to monitor the voting process and prevent election fraud.
According to the State,
10
The new election form prescribed by the Secretary, Form 12-D, further decreases the likelihood
that opportunistic voters will engage in precinct-shopping, because voters will actually see poll-workers
documenting non-compliance with poll-worker instructions.
Nos. 12-3916/4069 NE OH Coal. for Homeless, et al. v. Husted, et al. Page 23
moving toward a system in which (absent new and affirmative
evidentiary “verification” actions by the boards) the total potential
number of provisional ballots that must be counted is not capped by
reference to the number of registered voters assigned to a given precinct,
or capable of estimation at any time until after the polls have closed
would, almost by definition, make it more difficult for elections officials
to monitor and keep up with the voting process.
(State Br. at 50.) Not only will the injunction make it more difficult to administer the
election on election day, the State argues, but it will make it more difficult for the State
to comply with the federal safe harbor deadline for Presidential electors, December 11,
2012. See 3 U.S.C. § 5; O.R.C. § 3515.041. Beyond these administrative burdens, amici
CRACC movants suggest that the district court’s remedy opens the door to more poll-
worker error, which will result in the dilution of proper votes via the counting of
ineligible votes. We find neither argument persuasive.
First, the record does not support the State’s fear that the district court’s limited
remedy will increase the number of voters attempting to cast votes at the wrong polling
location or facilitating voter fraud. Barring substantial numbers of recalcitrant voters
insisting on casting wrong-precinct votes—again, a phenomenon not supported by the
record or logic—the district court’s limited remedy should not burden poll workers with
longer lines or tax county boards with an unmanageable number of ballot verifications
after election day. Second, neither the State nor amici present evidence that county
boards err in remaking wrong-precinct ballots to count only votes in “up-ballot” races,
despite the fact that county boards have followed the practice since the adoption of the
consent decree in April 2010. The State’s chief election official, who adopted Directive
No. 2012-44 and Form 12-D, apparently believes that poll workers and county boards
can both implement the district court’s injunctive relief and perform their other election
duties within the time allotted.
iii. Conclusion
In sum, while the Sandusky factors reflect a state’s legitimate interests in
maintaining a precinct-based election system, the State does not show how these
interests support the specific restriction challenged here: the summary rejection of poll-
Nos. 12-3916/4069 NE OH Coal. for Homeless, et al. v. Husted, et al. Page 24
worker-induced right-place/wrong-precinct ballots. Because the State fails to identify
precise interests justifying this substantial burden, we agree with the district court that
the SEIU plaintiffs have shown a likely equal protection violation.
b. Due Process & Disqualification Despite Poll-Worker Error
The voter burden identified by the SEIU plaintiffs likewise supports the district
court’s finding of a probable due process violation. The Due Process Clause protects
against extraordinary voting restrictions that render the voting system “fundamentally
unfair.” See, e.g., Warf v. Bd. of Elections of Green Cnty., Ky., 619 F.3d 553, 559
(6th Cir. 2010); League of Women Voters, 548 F.3d at 478. “[G]arden variety election
irregularities” do not rise to that level, Griffin v. Burns, 570 F. 2d 1065, 1076 (1st Cir.
1978), but substantial changes to state election procedures and/or the implementation of
non-uniform standards run afoul of due process if they “result in significant
disenfranchisement and vote dilution,” Warf, 619 F.3d at 559 (citations omitted). So too
do state actions that induce voters to miscast their votes. Griffin, 570 F.2d at 1074,
1078–79 (finding that Rhode Island’s post-election invalidation of absentee ballots
violated due process, because voters relied on state directives allowing such ballots);
Hoblock v. Albany Cnty. Bd. of Elections, 487 F. Supp. 2d 90, 97 (N.D.N.Y. 2006).
Although this issue was not ripe at the time, Hunter expressed “substantial
constitutional concerns regarding the invalidation of votes cast in the wrong precinct due
solely to poll-worker error.” 635 F.3d at 243.
Ohio has created a system in which state actors (poll workers) are given
the ultimate responsibility of directing voters to the right location to vote.
Yet, the state law penalizes the voter when a poll worker directs the voter
to the wrong precinct, and the penalty, disenfranchisement, is a harsh one
indeed. To disenfranchise citizens whose only error was relying on
poll-worker instructions appears to us to be fundamentally unfair. Cf.
[Purcell v. Gonzalez, 549 U.S. 1, 4 (2006)] (“[T]he possibility that
qualified voters might be turned away from the polls would caution any
district judge to give careful consideration to the plaintiffs’ challenges.”).
Nos. 12-3916/4069 NE OH Coal. for Homeless, et al. v. Husted, et al. Page 25
Id. at 243. The SEIU plaintiffs have shown, and the State does not deny, that poll-
worker error causes thousands of qualified voters to cast wrong-precinct ballots from the
correct polling locations.
Even so, the State argues that a due process violation requires intentional
conduct. See, e.g., Shannon v. Jacobowitz, 394 F.3d 90, 96 (2nd Cir. 2005). It appears
we have not opined on the scienter necessary for a voting restriction to violate due
process, see League of Women Voters, 548 F.3d at 476 (declining to decide the scienter
requirement for a voting restriction to violate equal protection), 478 (finding, at the
12(b)(6) stage, that allegations of systemic irregularities in Ohio’s elections system
supported a due process violation, without addressing scienter). Yet, accepting the
State’s premise, we find sufficient indicia of purposeful conduct in the State’s intent to
enforce its strict disqualification rules without exception, despite the systemic poll-
worker error identified in this litigation and others. Hunter shed light on this problem
last year, but the State persisted in its position. In light of the well-documented problem
of wrong-precinct provisional ballots caused by poll-worker error, resulting in the
rejection of thousands of provisional ballots each year, we have no basis on which to
disagree with the district court’s finding of a likely due process violation.
c. Equal Protection & Consent Decree’s Non-Uniform Standards
We next address the consent decree’s differential treatment of provisional ballots
depending on the form of identification used by the voters. As the district court
explained, the Ohio Revised Code rejects all wrong-precinct ballots, but the consent
decree provides a remedy only for SSN-4 voters. For those SSN-4 voters who later
show that poll-worker error caused their wrong precinct or deficient-affirmation vote,
the consent decree saves their ballots from rejection. A provisional voter using any other
form of identification (e.g., current photo identification, copy of current utility bill,
paycheck) receives no such reprieve.
Both the State and the SEIU plaintiffs addressed this issue before the district
court. In arguing for an expansion of the consent decree, the SEIU plaintiffs objected
to its “arbitrary and unequal counting and rejecting of the ballots of lawfully registered
Nos. 12-3916/4069 NE OH Coal. for Homeless, et al. v. Husted, et al. Page 26
Ohio voters.” (SEIU Pls.’ Second Am. Compl. ¶ 94; Mot. Prelim. Inj. at 31.) The
Secretary similarly acknowledged this equal protection problem in the consent decree,
but argued that “it’s equally plausible to say that the proper remedy is to treat everybody
the same and do away with the NEOCH decree.” (R. 69, Tr. Oral Arg. at 58:11–17.)
Though both parties continue to recognize this equal protection problem, they disagree
on a fix. The NEOCH plaintiffs likewise recognized this problem when they moved the
district court to expand the consent decree to avoid constitutional infirmity.
We agree with all of the parties and the district court that the consent decree
likely violates the equal protection principle recognized in Bush v. Gore. “[A] citizen
has a constitutionally protected right to participate in elections on an equal basis with
other citizens in the jurisdiction.” Dunn v. Blumstein, 405 U.S. 330, 336 (1972).
“Having once granted the right to vote on equal terms, the State may not, by later
arbitrary and disparate treatment, value one person’s vote over that of another.” Bush,
531 U.S. at 104–05. It appears to us that the consent decree does just that.
Our Hunter case noted a similar equal protection problem with this consent
decree. There, the Hamilton County elections board “considered evidence of poll-worker
error with respect to some ballots cast in the wrong precinct but not other similarly
situated ballots when it evaluated which ballots to count.” Hunter, 635 F.3d at 238.
Hunter recognized the possibility that Hamilton County’s treatment of provisional
ballots under the consent decree could create a statewide equal protection problem, but
limited its analysis to the county-based equal protection claim brought by the parties.
See id. at 241–42.
Here, the SEIU plaintiffs’ equal protection claim squarely raises the statewide
disparity inherent in the terms of the consent decree: its preferential treatment of SSN-4
provisional ballots. (SEIU Pls.’ Second Am. Compl. ¶ 94.) Consistent with Hunter, we
join the parties and the district court in finding that the consent decree’s different
treatment of similarly situated provisional ballots likely violates equal protection.
Nos. 12-3916/4069 NE OH Coal. for Homeless, et al. v. Husted, et al. Page 27
2. Irreparable Injury, Substantial Harm to Others, Public Interest
Turning to the equitable considerations, the State does not contest the district
court’s core findings of irreparable harm to the voter and absence of harm to others.
Rather, it offers only vague public-interest concerns, speculating that the injunction will
spawn additional poll-worker error, vote dilution, and post-election litigation. As we
explained in rejecting the CRACC amici’s vote-dilution argument, the record does not
support the fear that county boards will err in remaking wrong-precinct ballots by
improperly counting ineligible “down ballot” votes. Nor do we anticipate that the
injunction’s narrow remedy—saving “up-ballot” votes from poll-worker-induced wrong-
precinct ballots—will spur a mountain of post-election litigation. The State has not
shown that the district court abused its discretion in weighing the equitable
considerations.
Nor has the State shown abuse in the district court’s fashioning of injunctive
relief tailored to the identified harm. The State would disqualify thousands of right-
place/wrong-precinct provisional ballots, where the voter’s only mistake was relying on
the poll-worker’s precinct guidance. That path unjustifiably burdens these voters’
fundamental right to vote. Recognizing that a prospective remedy could not undo all of
the harm occasioned by poll-worker error, the district court crafted a narrow remedy that
preserves as much of a miscast ballot as possible. The Secretary has now adopted
regulations implementing the district court’s limited remedy for right-place/wrong-
precinct provisional ballots. See SOS Directive 2012-44 & Form 12-D. These
regulations enable the State to identify and document recalcitrant voters that disregard
poll-workers’ precinct instructions, so that these provisional ballots can be excluded.
Because the State offers no persuasive reason to disturb the district court’s remedy, as
implemented by the Secretary, we affirm the wrong-precinct aspect of the preliminary
injunction.
Nos. 12-3916/4069 NE OH Coal. for Homeless, et al. v. Husted, et al. Page 28
C. The Deficient-Affirmation Ballots
The district court identified only one probable constitutional violation as
supporting the injunction’s deficient-affirmation remedy: the unreasonableness of
disqualifying deficient-affirmation ballots caused by poll-worker error, in derogation of
equal protection. Because the spotty record and Ohio law do not support the district
court’s presumption of poll-worker error, we find no likely constitutional violation and
reverse this aspect of the preliminary injunction.
The district court’s opinion suffers from two presumptions not supported by the
record: (1) that the absence of legitimate state interests overcomes any difficulty
“quantify[ing] the precise magnitude of the burden imposed by [Ohio’s] restriction on
the class of affected voters,” and (2) that state law requires poll-workers to ensure that
provisional voters properly complete ballot affirmations. (Plenary Op. & Order at 44.)
The district court’s minimal findings on this count reflect that Ohio rejected 568
provisional ballots in 2011 due to technical deficiencies appearing in the ballot
affirmations, but do not specify which of these ballots suffered from which deficiencies.
To be sure, the SEIU plaintiffs grouped a variety of voter-penned errors in support of
this claim—e.g., missing, misplaced, and non-matching signatures, and failure to include
a printed name.
In our view, the difficulty in measuring the voter burden imposed by the ballot-
affirmation requirement stems from the fact that all of the identified deficiencies arise
from voters’ failure to follow the form’s rather simple instructions: (1) print name,
(2) provide identification,11 and (3) sign the affirmation appearing at the bottom. See
SOS Form 12-B. Even the last step is optional, because Ohio law permits voters to cast
a provisional ballot without signing the affirmation upon notifying a poll worker. O.R.C.
§ 3505.181(B)(6). Contrary to the district court’s suggestion, Ohio law does not task
poll-workers with quality control of ballot affirmations. Rather, the Ohio provisions
cited by the district court instruct provisional voters to “execut[e] . . . a written
11
The SEIU plaintiffs do not challenge Ohio’s voter-identification requirements.
Nos. 12-3916/4069 NE OH Coal. for Homeless, et al. v. Husted, et al. Page 29
affirmation . . . before an election official,” O.R.C. § 3505.181(B)(2), and require
election officials to “record the type of identification provided, the social security
number information, the fact that the affirmation was executed, or the fact that the
individual declined to execute such an affirmation and include that information with the
transmission of the ballot,” O.R.C. § 3505.181(B)(6).
During oral argument, the SEIU appellees conceded that Ohio’s ballot-
affirmation requirement imposes a lesser burden on voters than Ohio’s precinct
requirement. In light of Ohio’s similar signature requirements for casting regular ballots
with proper identification, absentee ballots, and issue petitions, see O.R.C. §§ 3509.03,
3509.05, 3519.01, 3505.18, we agree. Ohio’s legitimate interests in election oversight
and fraud prevention easily justify the minimal, unspecified burden asserted by the SEIU
plaintiffs. Because the SEIU plaintiffs have not shown a likelihood of success on the
merits, we reverse the preliminary injunction’s deficient-affirmation remedy.
IV. THE CONSENT DECREE (Appeal 12-3916)
A. Applicability of Rule 60(b)
Ohio and the Secretary argue that Rule 60(b) does not apply to this case because
(1) Ohio election law does not provide exceptions for the counting of any wrong-
precinct or deficient-affirmation ballots, and the consent decree made no predicate
findings of a constitutional violation; (2) the consent decree, by its own terms, is
modifiable for “good cause”; and (3) this court already ruled that the consent decree is
not a “final judgment.” They claim that because Ohio and the Secretary entered an
agreement with the plaintiffs that they now contend violates Ohio law, it is void, and
Rule 60(b) does not apply to a request to vacate it. We hold that Rule 60(b) applies to
this case and that Ohio and the Secretary have not sustained their burden under Rule
60(b). Thus, we affirm the district court’s denial of the request to vacate the consent
decree.
Ohio and the Secretary argue that if a consent decree requires a state to take
actions that violate state law, and no predicate federal constitutional violation has been
Nos. 12-3916/4069 NE OH Coal. for Homeless, et al. v. Husted, et al. Page 30
established, Rule 60(b) does not apply. They cite a number of cases for this proposition,
but all of them involved either third parties challenging a consent decree reached by
others, or review of legal challenges to a consent decree on direct appeal.12 Rule 60(b)
would not have been implicated in these cases because those challenging the validity of
the decrees were either not “parties,” as required by Rule 60(b), or properly raised their
argument on direct appeal in the underlying litigation. None involved a party contesting
the validity of a decree to which it previously consented after the decree became final
and the time for direct appeal passed. In the only case we are aware of addressing facts
similar to those posed here, the Second Circuit applied Rule 60(b) to deny the
government’s request for relief from the consent decree. See Congregation Mischknois
Lavier Yakov, Inc. v. Bd. of Trs. for Village of Airmont, 301 F. App’x 14, 15 (2d Cir.
2008) (rejecting defendant’s argument “inasmuch as the settlement and order were
contrary to state law, they were void and should be vacated”).
Although they do not acknowledge it, Ohio and the Secretary make an argument
properly characterized as falling under Rule 60(b)(4). Rule 60(b)(4) permits final
judgments to be lifted if “void.” But the Supreme Court has held that nothing short of
a “jurisdictional error” or “a violation of due process” justifies relief under Rule
60(b)(4). See United Student Aid Funds, Inc. v. Espinosa, 130 S. Ct. 1367, 1377 (2010).
Neither is alleged or shown here. Espinosa was itself a case where a final judgment
enshrined a violation of federal law, and the corporation challenging that judgment under
Rule 60(b) did nothing to address this problem in a timely fashion. Id. at 1380. Ohio
and the Secretary contend that the consent decree was flawed “when it was entered.”
12
See St. Charles Tower, Inc. v. Kurtz, 643 F.3d 264, 266 (8th Cir. 2011) (appeal by intervenors
who were not parties to a consent decree between plaintiffs and defendant zoning board); League of
Residential Neighborhood Advocates v. City of L.A., 498 F.3d 1052, 1053 (9th Cir. 2007) (lawsuit brought
by neighbors of a synagogue that entered a consent decree with the defendant in a separate case);
Cleveland Cnty. Ass’n for Gov’t by the People v. Cleveland Cnty. Bd. of Comm’rs, 142 F.3d 468, 471
(D.C. Cir. 1998) (lawsuit brought by third-party voters group challenging consent decree entered by
NAACP and the defendant); Keith v. Volpe, 118 F.3d 1386, 1389–90 (9th Cir. 1997) (appeal of an
injunction entered pursuant to a consent decree by a businessman who was not a party to the decree);
Perkins v. City of Chi. Heights, 47 F.3d 212, 214 (7th Cir. 1995) (appeal by two of the named plaintiffs
in a class action objecting to a consent decree reached by the remaining named plaintiffs and the
defendant); People Who Care v. Rockford Bd. of Educ. Sch. Dist. No. 205, 961 F.2d 1335, 1336 (7th Cir.
1992) (appeal by a teacher’s union that was not a party to a consent decree between a school district and
various citizens’ groups); Kasper v. Bd. of Election Comm’rs of the City of Chi., 814 F.2d 332, 338–39 (7th
Cir. 1987) (appeal by plaintiffs dissatisfied with a consent decree reached by intervening plaintiffs and
defendants).
Nos. 12-3916/4069 NE OH Coal. for Homeless, et al. v. Husted, et al. Page 31
(Appellant’s Br. at 27.) Nonetheless, they agreed to and were signatories to the consent
decree and did not begin challenging it as “void” until more than a year after the fact.
“Where, as here, a party [has notice of a violation of law enshrined in a final judgment]
and fails to object to [it] before the time for appeal expires, that party has been afforded
a full and fair opportunity to litigate, and the party’s failure to avail itself of that
opportunity will not justify Rule 60(b)(4) relief.” Espinosa, 130 S. Ct. at 1380.
Therefore, we agree with the plaintiffs that Rule 60(b)(4) governs challenges to an
allegedly “void” consent decree and that Ohio and the Secretary have not met the high
threshold necessary to bring such a challenge.
The consent decree provides that “[a]ny of the parties may file a motion with the
Court to modify, extend or terminate this Decree for good cause shown.”
(Consent Decree at V(11).) Ohio and the Secretary argue that this clause constitutes a
“waiver” of the strictures of Rule 60(b). It does not. While a consent decree “embodies
an agreement of the parties and thus in some respects is contractual in nature,” it is
nonetheless subject to Rule 60(b) because it is “a judicial decree that is subject to the
rules generally applicable to other judgments and decrees.” Rufo v. Inmates of Suffolk
Cnty. Jail, 502 U.S. 367, 378 (1992). The words “good cause shown” do not upset this
general presumption. Even when consent decrees explicitly provide instructions for their
own modification, Rule 60(b) governs. Cleveland Firefighters for Fair Hiring Practices
v. City of Cleveland, 669 F.3d 737, 741 (6th Cir. 2012) (“[A] district court is not merely
an instrument of a consent decree or of the parties’ stipulations with respect to it,” and
termination of a decree must be “lawful given not only the decree’s terms, but also the
broader legal rules that govern consent decrees”). Moreover, while we review the
district court’s interpretation of a consent decree it approves de novo, we have applied
“deferential de novo” review to the district court’s interpretation of a consent decree it
supervised and approved. Sault Ste. Marie Tribe of Chippewa Indians v. Engler,
146 F.3d 367, 371–72 (6th Cir. 1998) (emphasis added). The district court’s conclusion
that Rule 60(b) applied to this dispute removes any doubt that the “good cause shown”
language in the consent decree reaffirms Rule 60(b)’s applicability, rather than
circumventing it.
Nos. 12-3916/4069 NE OH Coal. for Homeless, et al. v. Husted, et al. Page 32
The consent decree explains that it is “final and binding among and between [the
parties] as to the issues raised in the Plaintiffs’ Complaint and Supplemental Complaint,
and the matters resolved in this Decree.” (Consent Decree, preamble.) Nonetheless,
Ohio and the Secretary argue that this court’s recent opinion in NEOCH v. Husted, ---
F.3d ----, 2012 WL 3734369 (6th Cir. Aug. 30, 2012), establishes that the consent decree
is not a “final judgment” subject to Rule 60(b). That decision addressed whether the
plaintiffs, by entering into the consent decree, waived their right to petition for
supplemental attorney fees and costs pursuant to 42 U.S.C. § 1988(b). NEOCH, 2012
WL 3734369, at *4. We found that the consent decree did not constitute such a waiver.
Id. at *8.
Contrary to the position taken by Ohio and the Secretary, that ruling had no
bearing on whether or not the consent decree was a “final order, judgment, or
proceeding” for Rule 60(b) purposes. Our case law interpreting § 1988(b) in the context
of settlement agreements has focused on whether or not “the parties intended the
settlement to be a final disposition of all claims,” or if the agreement contemplates a
future motion for such fees by the “prevailing party.” See Jennings v. Metro. Gov’t of
Nashville, 715 F.2d 1111, 1113–14 (6th Cir. 1983) (emphasis added). But in either case,
the underlying resolution of the plaintiff’s claims that supports the request for fees is a
“final” one for Rule 60(b) purposes. Entitlement to such fees is determined by whether
a party “‘succeed[s] on any significant issue in litigation which achieves some of the
benefit the parties sought in bringing suit.’” Phelan v. Bell, 8 F.3d 369, 373 (6th Cir.
1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). It is not possible to
apply for “prevailing party” fees until a form of “judicially-sanctioned relief” has been
provided. Sierra Club v. Hamilton Cnty. Bd. of Cnty. Comm’rs, 504 F.3d 634, 656
(6th Cir. 2007). The consent decree’s explicit statement that it is “final and binding” as
to the “matters resolved in this decree” erases any doubts on this point. Accordingly, the
recent decision in NEOCH does not alter our views regarding Rule 60(b)’s applicability
in this context.
Nos. 12-3916/4069 NE OH Coal. for Homeless, et al. v. Husted, et al. Page 33
B. Analysis Under Rule 60(b)
Having rejected the objections to Rule 60(b)’s applicability, our resolution of the
appeal is straightforward. “We review a district court’s decision to vacate a decree for
an abuse of discretion.” Doe v. Briley, 562 F.3d 777, 782 (6th Cir. 2009). Ohio and the
Secretary “‘bear[ ] the burden of establishing that a significant change in circumstances
warrants revision of the decree.’” Vanguards of Cleveland v. City of Cleveland, 23 F.3d
1013, 1018 (6th Cir. 1996) (quoting Rufo, 502 U.S. at 760). We have already explained
why the district court properly found that the consent decree is not “void” under Rule
60(b)(4). As to Rule 60(b)(5), Ohio and the Secretary advanced no argument that they
were actually entitled to such relief in their opening brief, since they chose to rely solely
on arguments challenging Rule 60(b)’s applicability. See Youghiogheny & Ohio Coal
Co. v. Milliken, 200 F.3d 942, 955 (6th Cir. 1999) (“[A]rguments not raised in the
proponent’s opening brief on appeal are generally considered abandoned.”). In their
reply brief, Ohio and the Secretary argue that they have met the requirements of Rule
60(b)(5) and Rufo because “modification of a consent decree may be warranted when the
statutory or decisional law has changed to make legal what the decree was designed to
prevent.” Rufo, 502 U.S. 367, 388 (1992); see also Sweeton v. Brown, 27 F.3d 1162,
1164 (6th Cir. 1994).
Rufo does not support Ohio and the Secretary’s argument. First, Rufo dealt
specifically with the issue of clarifying decisions of federal law, not state law, which is
the only legal change asserted in No. 12-3916. Second, Ohio and the Secretary have
conceded that, at best, Painter merely clarified preexisting Ohio law. Rufo is limited to
genuinely unanticipated circumstances. Id. at 384 (“[M]odification should not be granted
where a party relies upon events that actually were anticipated at the time it entered into
a decree.”). Third, Rufo acknowledged that parties can and do “settle . . . dispute[s] over
the proper remedy for . . . constitutional violations that had been found by undertaking
to do more than the Constitution itself requires,” and that allowing the modification of
decrees whenever “a clarification in the law” comes about would greatly “undermine the
finality of such agreements” and “serve as a disincentive to negotiation of settlements
Nos. 12-3916/4069 NE OH Coal. for Homeless, et al. v. Husted, et al. Page 34
in institutional reform litigation.” Id. at 388–89; see also Northridge Church v. Charter
Twp. of Plymouth, 647 F.3d 606, 613–14 (6th Cir. 2011) (“[Rule 60(b)(5)] does not
allow modification ‘when it is no longer convenient to live with the terms of a consent
decree’ . . . .” (quoting Rufo, 502 U.S. at 383) (emphasis in Northridge Church)).
Applying Rufo in this case would raise serious finality concerns, given Ohio and the
Secretary’s change of course on the proper law to be applied.
Moreover, even taking into account the arguments raised in the reply brief, Ohio
and the Secretary have not carried their burden on two other aspects of the Rufo test
recognized by this circuit. In addition to a “significant change in circumstances,” the
moving party must show that the consent decree is “onerous,” “unworkable,” or
“detrimental to the public interest.” Heath v. DeCourcy, 992 F.2d 630, 635 (6th Cir.
1993). Furthermore, if changes are anticipated, as they appeared to be in this case, the
party seeking to modify the decree must show that the original decree was agreed to in
good faith, that reasonable efforts at compliance were made, and that it ought to be
relieved of its obligations. Id. Ohio and the Secretary have not attempted to make these
showings, much less carry their burden on them. Accordingly, the district court did not
abuse its discretion in refusing to modify the consent decree under Rule 60(b).
C. Remaining Issues with Consent Decree
Before concluding, we note some additional issues our ruling creates that must
be resolved. While we have set aside the portion of the preliminary injunction addressing
deficient-affirmation provisional ballots, the consent decree continues to mandate that
some deficient-affirmation provisional ballots will be counted. This discrepancy appears
to create a Bush v. Gore problem. Similarly, the consent decree standing on its own also
raises Bush v. Gore issues by virtue of treating some provisional ballots differently than
others. This latter concern is not purely academic, as the consent decree will be the only
agreement governing these issues for Ohio’s 2013 primary elections.
In the order on appeal in No. 12-4069, the district court held that the discrepancy
the consent decree creates between different sets of provisional ballots formed an
alternate justification for the preliminary injunction. Both Ohio and the Plaintiffs
Nos. 12-3916/4069 NE OH Coal. for Homeless, et al. v. Husted, et al. Page 35
attempted to leverage this ruling on appeal in No. 12-4069 by arguing that either none
or all of these ballots ought to be counted, respectively. But the district court has never
ruled on this argument in the context of a request to modify or vacate the consent decree.
The NEOCH Plaintiffs did make a motion to this effect in the district court, but it was
stayed pending this appeal. Moreover, the discrepancy between deficient-affirmation
ballots for the November 2012 election is entirely a creature of this court’s decisions,
and has never been considered by the district court. Because the district court has not
had an opportunity to address these issues, and decisions to modify consent decrees are
generally left to the discretion of the trial court, the proper course is to remand this case
so that the parties, by proper motion or agreement, may address the issue in the district
court. Ohio, which has the most to lose by a remand, suggested such relief would be
appropriate on appeal if such a finding were made. (Ohio Br., No. 12-4069, at 32 (“[I]f
[the court] finds that the Decree creates a constitutional violation, it can note that as a
holding, leaving the district court on remand to address that.”).)
V. CONCLUSION
For the above reasons, we AFFIRM IN PART and REVERSE IN PART the
district court’s preliminary injunction in appeal 12-4069. Specifically, the preliminary
injunction’s wrong-precinct remedy is AFFIRMED, and the deficient-affirmation
remedy is REVERSED. The district court’s judgment in No. 12-3916 is AFFIRMED,
and the matter is REMANDED for further proceedings.