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IN THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

THE NORTHEAST OHIO COALITIONFOR THE HOMELESS, et al.,

Plaintiffs,

vs.

JON HUSTED, in his official capacity asSecretary of State of Ohio,

Defendant

and

STATE OF OHIO

Intervenor-Defendant.

SERVICE EMPLOYEESINTERNATIONAL UNION, LOCAL 1, etal.,

Plaintiffs

vs.

JON HUSTED, et al.,

::::::::::::::::::::::::::::::

Case Nos. 2:06-CV-896 and 2:12-CV-562

Judge Algenon Marbley

Magistrate Judge Terence P. Kemp

NEOCH PLAINTIFFS’ EMERGENCYMOTION FOR CLARIFICATION ANDFOR MODIFICATION OF CONSENTDECREE; SEIU LOCAL 1 PLAINTIFFS’MOTION FOR PRELIMINARYINJUNCTION; MEMORANDUM OFLAW IN SUPPORT THEREOF

On the evening of Friday, November 2, 2012, Defendant Secretary of State Jon Husted

issued Directive 2012-54, changing the rules under which provisional ballots in Ohio cast in

Tuesday’s elections will be counted. This change, which goes beyond what was required to

implement the orders of this Court and the Sixth Circuit in these related cases, violates Section

III(5)(b)(vii) of the NEOCH Consent Decree as well as the Equal Protection and Due Process

Case: 2:12-cv-00562-ALM-TPK Doc #: 97 Filed: 11/05/12 Page: 1 of 28 PAGEID #: 6283

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Clauses of the Fourteenth Amendment. Specifically, Directive 2012-54 now, for the first time,

orders all county boards of elections to reject any provisional ballot where the voter has not

completed the section of the provisional ballot affirmation form (Form 12-B) recording the voter

identification provided to the poll worker, despite the fact that this responsibility is expressly

“task[ed]” to the poll worker – not the voter. NEOCH v. Husted, __F.3d __, 2012 WL 4829033

at *16 (6th Cir. Oct. 11, 2012). This Directive is a 180-degree turn from the previous Directive

governing the counting of provisional ballots (No. 2012-01), that, as this Court relied upon in its

October 26, 2012 opinion and order, did not require these ballots’ rejection. 10/26/12 Order at

19-20. And it is also a 180-degree turnaround from the Secretary’s representation to this Court.

10/24/12 Tr. at 50:5-20. As the Sixth Circuit and this Court have recognized, and as the

Secretary argued to this Court on October 24, 2012, the duty to record a voter’s identification

information lies with the poll worker, not the voter. NEOCH v. Husted, __F.3d __, 2012 WL

4829033 at *16 (6th Cir. Oct. 11, 2012); 10/26/12 Order at 19-20; 10/24/12 Trans. at 50:5-20.

To provide that a voter – not the poll worker – has the responsibility for recording identification

information on a complicated form (in direct contravention of the applicable statute) and then to

disqualify the ballot if the voter does so incorrectly, as the Secretary has now done, violates the

parties’ understanding of the Consent Decree, Ohio law, and the Constitution. Plaintiffs have no

choice, given the late hour of the Secretary’s change of position – directly contrary to his

representations to this Court just days before – but to immediately move for emergency relief

applicable to the provisional ballots cast in this election.

Prior to the issuance of Directive 2012-54, Plaintiffs in NEOCH v. Husted moved on an

emergency basis for clarification of this Court’s October 26, 2012 Order and to confirm that

Section III(5)(b)(vii) of the NEOCH Consent Decree protects against the disqualification of


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provisional ballots cast by SSN-4 voters that have incomplete or incorrectly completed voter

identification information. NEOCH Dkt. 346 (filed Nov. 1, 2012). As explained in that motion,

the NEOCH Plaintiffs were concerned that the Secretary would order county boards of elections

to reject these ballots, despite the Secretary’s representation to the Court that Section

III(5)(b)(vii) of the Decree prohibited such rejection. Plaintiffs’ concern was prompted by the

Secretary’s adoption for this election of a Provisional Ballot Affirmation Form (Form 12-B) that

wrongly purports to place on the voter, not the poll worker, the burden of recording the

identification information. Id. at 8-9. Prior to filing the motion for clarification, the NEOCH

Plaintiffs asked the Secretary to confirm that these ballots, consistent with his representations to

this Court, would be counted, but never received any response to that request. Id. at 6-7;

NEOCH Dkt. 346-1 ¶¶3-4.

Instead, confirming Plaintiffs’ fears, the Secretary has now – on the eve of the election –

ordered county boards of elections to reject and not count any provisional ballot where the voter

has incorrectly filled out or failed to fill out the section regarding identification proffered to the

poll worker, even though this is information that poll workers, not voters, are statutorily required

to complete. Tellingly, the Secretary issued Directive 2012-54 only after this Court removed the

Consent Decree’s provision prohibiting disqualification of ballots based on a voter’s failure to

complete the provisional ballot form when that failure is attributable to poll-worker error, and

only after the Secretary’s counsel assured this Court that any concerns regarding incomplete

identification information would implicate poll-worker responsibilities and thus would not fall

under Section III(5)(b)(vii) of the Decree. The Secretary should be judicially estopped from

changing course now.


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Directive 2012-54 conflicts with Section III(5)(b)(vii) of the Decree, which – properly

construed – does not permit the disqualification of ballots on the basis that the identification

information the poll worker is statutorily obligated to record is incomplete. The Directive also

conflicts with the Sixth Circuit’s and this Court’s rulings that voters should not be

disenfranchised as a result of a poll worker’s failure to perform his or her duties.

This Court’s October 26, 2012 decision on remand from the Sixth Circuit, which rejected

the NEOCH Plaintiffs’ request for statewide relief with respect to incomplete ballot affirmations

and instead granted Ohio’s motion to modify the consent decree to eliminate the voter-error

provision, rested on the Court’s conclusion that, at that time, no ballots would be rejected

because of poll-worker rather than voter error in completing affirmations. Relying on the

Secretary’s representations, this Court stated that “critically,” the ballots that were incomplete

because a poll worker failed to complete requisite information, such as those at issue here, would

not be rejected under Consent Decree Section III(5)(b)(vii) and Directive 2012-01. 10/26/12

Order at 19. That is no longer true given the Secretary’s eleventh-hour new Directive.

In light of these factual developments, the NEOCH Plaintiffs respectfully move on an

emergency basis for clarification of the Court’s October 26, 2012 Order, that under Section

III(5)(b)(vii), provisional ballots may not be disqualified because the ballot form information

regarding the identification proffered by the voter is incomplete, unless the board of elections

first has determined that the voter failed to provide poll workers with the last four digits of his or

her Social Security number or proffer other identification acceptable under Ohio law, and that

the voter declined to complete a Form 10-T affirmation, and to modify the Consent Decree in

NEOCH v. Husted to extend these protections to all provisional voters. The SEIU Local 1

Plaintiffs move for a preliminary injunction for the same relief, enjoining Directive 2012-54 to


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the extent it requires that provisional ballots be disqualified on the basis that the ballot form’s

information regarding the identification proffered by a voter is incomplete or incorrectly

completed, and the board of elections has not determined that the voter failed to proffer

acceptable identification or the last four digits of the voter’s Social Security number, and

declined to complete Form 10-T.

County boards of elections will begin counting provisional ballots cast on Election Day,

November 6, 2012, at public meetings held between November 17 and 21, 2012, and their staff

may begin reviewing ballots for eligibility as soon as Wednesday, November 7, 2012. See

Directive 2012-54 at 2 (attached as Ex. A to Chisholm Decl.). Accordingly, Plaintiffs also

respectfully request the Court set a briefing schedule on this motion that parallels that set on the

NEOCH Plaintiffs’ November 1, 2012 motion, with Defendants’ response due on November 6,

2012, and a reply due on November 8, 2012. A supporting memorandum of law accompanies

these motions.

Dated: November 4, 2012 Respectfully submitted,

/s/ Barbara J. Chisholm _______________By: Barbara J. Chisholm, for SEIU Local 1Plaintiffs and NEOCH Plaintiffs

Plaintiffs’ Counsel in SEIU Local 1:

MICHAEL J. HUNTER, trial attorney(0018756)CATHRINE J. HARSHMAN (0079373)Hunter, Carnahan, Shoub, Byard & Harshman3360 Tremont Road, Suite 230Columbus, Ohio 43221Telephone: (614) 442-5626E-mail: [email protected]

Attorneys for All SEIU Local 1 Plaintiffs

Plaintiffs’ Counsel in NEOCH:

CAROLINE H. GENTRY, Trial Attorney(0066138)DANIEL B. MILLER (0080767)Porter, Wright, Morris & Arthur LLPOne South Main Street, Suite 1600Dayton, OH 45402Telephone: (937) 449-6748E-mail: [email protected]@porterwright.com


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STEPHEN P. BERZON, pro hac viceSTACEY M. LEYTON, pro hac viceBARBARA J. CHISHOLM, pro hac viceDANIELLE LEONARD, pro hac viceAltshuler Berzon LLP177 Post Street, Suite 300San Francisco, CA 94108Telephone: (415) 421-7151E-mail: [email protected]

Attorneys for Plaintiffs SEIU Local 1, USW,UAW Local 1005, UAW Local 863, UFCWLocal 75, UFCW Local 880, UFCW Local1059, and ICWUC

PENDA HAIR, pro hac viceDONITA JUDGE, pro hac viceUZOMA NKWONTA, pro hac viceAdvancement Project1220 L Street, N.W., Suite 850Washington, D.C. 20005Telephone: (202) 728-9557E-mail: [email protected]

Attorneys for Plaintiff Ohio OrganizingCollaborative

MICHAEL J. HUNTER (0018756)CATHRINE J. HARSHMAN (0079373)Hunter, Carnahan, Shoub, Byard & Harshman3360 Tremont Road, Suite 230Columbus, Ohio 43221Telephone: (614) 442-5626E-mail: [email protected]@hcands.comSUBODH CHANDRA (0069233)The Chandra Law Firm, LLC1265 W. 6th Street, Suite 400Cleveland, OH 44113-1326Telephone: (216) 578-1700E-mail: [email protected]

Attorneys for Plaintiffs NEOCH and SEIULocal 1199

STEPHEN P. BERZON, pro hac viceSTACEY M. LEYTON, pro hac viceBARBARA J. CHISHOLM, pro hac viceDANIELLE LEONARD, pro hac viceAltshuler Berzon LLP177 Post Street, Suite 300San Francisco, CA 94108Telephone: (415) 421-7151E-mail: [email protected]@[email protected]@altber.com

Attorneys for Plaintiff SEIU Local 1199

DONALD J. MCTIGUE, Trial Attorney(0022849)MARK A. MCGINNIS (0076275)McTigue Law Group550 East Walnut StreetColumbus, OH 43215Telephone: (614) 263-7000E-mail: [email protected]

Attorneys for Intervenor-Plaintiff OhioDemocratic Party


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TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii

INTRODUCTION ...........................................................................................................................1

BACKGROUND .............................................................................................................................3

A. The Sixth Circuit’s and this Court’s Decisions Regarding Poll-Worker Error andDeficient Provisional Ballot Affirmations ...............................................................3

B. Ohio Law Requires Election Officials – and Not Voters – to Record the Type ofIdentification Provided By a Voter and to Indicate Whether a Voter Needs toProvide Any Additional Information to the Board of Elections ..............................5

C. The Secretary’s Redesigned Provisional Ballot Affirmation Form (Form 12-B)Improperly Purports to Shift the Duty to Verify and Record Information from thePoll Worker to the Voter..........................................................................................6

D. NEOCH Plaintiffs Seek Confirmation from Secretary of Section III(5)(b)(vii)’sScope and, Receiving No Response, File Motion for Clarification.........................8

E. The Secretary’s Directive 2012-54, Issued on the Eve of the Election, Reversesthe Approach Taken in Directive 2012-01 and Contradicts the Secretary’s October24, 2012 Assurances to This Court ..........................................................................9

ARGUMENT.................................................................................................................................10

I. The NEOCH Consent Decree Should Be Modified to Extend the Protections of SectionIII(5)(b)(vii) to All Provisional Voters ..............................................................................10

A. The Court Should Clarify that Under Section III(5)(b)(vii) of the ConsentDecree Provisional Ballots May Not Be Disqualified Because the Ballot FormInformation Regarding the Identification Proffered By the Voter IsIncomplete..............................................................................................................10

B. This Court Should Revise the October 26, 2012 Order in Light of theSecretary’s Eleventh-Hour Directive 2012-54 and Modify the Decree to Extendthe Protection Against Poll-Worker Failure to Record Information to AllProvisional Voters..................................................................................................12

II. The Court Should Issue a Preliminary Injunction in SEIU Local 1 v. Husted Enjoiningthe Rejection of Provisional Ballots with Incomplete Identification Informationon the Ballot Forms............................................................................................................14

CONCLUSION..............................................................................................................................16


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TABLE OF AUTHORITIES

FEDERAL CASES

Burdick v. Takushi,504 U.S. 428 (1992).................................................................................................................15

Bush v. Gore,531 U.S. 98 (2000)...............................................................................................................4, 13

Crawford v. Marion County Board of Elections,553 U.S. 181 (2008).................................................................................................................15

Davis v. Wakelee,156 U.S. 680 (1895).................................................................................................................11

Dunn v. Blumstein,405 U.S. 330 (1972).................................................................................................................13

Hunter v. Hamilton County Board of Elections,635 F.3d 219 (6th Cir.2011) ....................................................................................................15

NEOCH v. Husted,__F.3d __, 2012 WL 4829033 (6th Cir. Oct. 11, 2012) .................................................. passim

New Hampshire v. Maine,532 U.S. 742 (2001).................................................................................................................11

Obama for America v. Husted,__ F.3d __, 2012 WL 4753397 (6th Cir. Oct. 5, 2012) ...........................................................16

Oregon v. Mitchell,400 U.S. 112 (1970).................................................................................................................15

Warda v. C.I.R.,15 F.3d 533 (6th Cir. 1994) .....................................................................................................11

STATE STATUTES

Ohio Rev. Code §3505.181.................................................................................................... passim

Ohio Rev. Code §3505.182.................................................................................................... passim


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FEDERAL RULES

Fed. Rule of Civ. Proc. 60..............................................................................................................13


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MEMORANDUM OF LAW

INTRODUCTION

Plaintiffs seek emergency clarification of this Court’s October 26, 2012 Order issued in

the related cases of NEOCH v. Husted and SEIU Local 1 v. Husted, and emergency relief in light

of the Secretary of State’s issuance of Directive 2012-54 at 6:00 p.m. on the Friday before

election day. Chisholm Decl., Ex. A.

Secretary Husted issued Directive 2012-54 ostensibly to implement this Court’s and the

Sixth Circuit’s recent orders regarding the November 2012 election. Id., Ex. A at 1. Directive

2012-54, however, makes an extraordinary and unconstitutional change to Ohio’s established

rules for counting provisional ballots not required by, and indeed directly contrary to, those court

orders. According to Directive 2012-54, county boards of elections are now required to reject

provisional ballots that have incomplete information regarding identification proffered by voters

– despite the fact that under the relevant statute the duty to record this information rests squarely

and unambiguously with poll workers, and not voters. Id., Ex. A at 3. Before Friday evening,

the counting of provisional ballots was governed by Directive 2012-01, which did not allow for

the disqualification of provisional ballots for this reason. Id., Ex. B; see also 10/26/12 Order at

19-20. The Secretary’s eve-of-election instructions to reject these otherwise valid votes cast by

lawfully registered voters should not be permitted.

This eleventh-hour change disenfranchising Ohio voters is contrary to the representations

of the Secretary’s counsel to this Court, inconsistent with the decisions of this Court and the

Sixth Circuit, and violates the Constitution. 10/24/12 Trans. at 50:5-20; 10/26/12 Order at 19-

20; NEOCH v. Husted, __F.3d __, 2012 WL 4829033 at *16 (6th Cir. Oct. 11, 2012).


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There can be absolutely no dispute that poll workers, and not voters, are responsible for

recording on provisional ballot forms information about identification proffered by voters.

O.R.C. §3505.181(B)(6); id. §3505.182. The Sixth Circuit acknowledged the duty of “election

officials to ‘record the type of identification provided, [or] the social security number

information.’” NEOCH, 2012 WL 4829033 at *16 (quoting O.R.C. §3505.181(B)(6)). The

Secretary in support of eliminating a different sub-section of the Decree, expressly assured this

Court that recording identification information was a poll worker’s duty, and therefore that

ballots with incomplete identification information would be protected from disqualification

under Section III(5)(b)(vii) of the NEOCH Consent Decree. 10/24/12 Trans. at 50:5-20.

This Court, in its October 26, 2012 Order in these related cases, relied on this

representation, and the fact that both the Decree and Directive 2012-01 protected provisional

ballots against disqualification in the event they were incomplete as a result of a poll worker’s

failure to fill out required information. 10/26/12 Order at 19-20. That these protections would

remain in place was “critical[]” to the Court’s decision to deny the NEOCH Plaintiffs’ request to

extend the protections of Section III(5)(b)(vii) to all voters, and to grant the Secretary’s motion

to remove Section III(5)(b)(vi) from the Decree, a section the Secretary contended was limited to

instances of voter mistakes in printing or signing the ballot form. Id.; 10/24/12 Trans. at 50:5-20.

This factual predicate for the Court’s decision is, however, no longer true: incomplete ballot

affirmations that result from poll-worker not voter error will result in the rejection of votes under

Directive 2012-54.

As set forth in NEOCH Plaintiffs’ Motion for Clarification filed November 1, 2012,

Plaintiffs requested confirmation from the Secretary that, consistent with representations of his

counsel and this Court’s order, he would instruct county boards of elections to count otherwise


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valid provisional ballots if they had incomplete identification information on the form. NEOCH

Dkt. 346 at 6-7; NEOCH Dkt. 346-1 ¶¶3-4 & Ex. 1. Plaintiffs explained that such confirmation

was necessary because the Secretary’s Provisional Ballot Affirmation Form (Form 12-B)

differed from the statutory form, and improperly purported to place on the voter the burden of

recording identification information. NEOCH Dkt. 346-1, Ex. 1. The Secretary, however,

refused to provide any confirmation in response to Plaintiffs’ request. Id. ¶¶3-4. Instead, he

responded by reversing his position regarding the counting of these ballots and – in a Directive

he claimed was necessary only to implement this Court’s orders – instructed county boards to

disqualify ballots that are deficient only because they lack information the poll workers are

required to complete. Chisholm Decl., Ex. A at 3.

In light of these factual developments, the NEOCH Plaintiffs move this Court to clarify

its October 26, 2012 Order that, under Section III(5)(b)(vii), provisional votes may not be

disqualified because the ballot form’s information regarding the identification proffered by the

voter is incomplete, and to modify the Consent Decree to extend Section III(5)(b)(vii)’s

protections to all provisional voters. The Plaintiffs in SEIU Local 1 v. Husted respectfully move

for a preliminary injunction providing the same relief.

BACKGROUND

A. The Sixth Circuit’s and this Court’s Decisions Regarding Poll-Worker Error andDeficient Provisional Ballot Affirmations

On October 11, 2012, the Sixth Circuit remanded to this Court the question of the

constitutionality and proper scope of the Decree’s protections for flawed provisional ballot

affirmation forms. NEOCH, 2012 WL 4829033 at *19-20. The Sixth Circuit noted that, in light

of its decision to set aside this Court’s August 27, 2012 ballot affirmation preliminary injunction,

the continued protection for SSN-4 provisional voters against disqualification for failure to


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complete ballot affirmations that resulted from poll-worker error was, under Bush v. Gore, 531

U.S. 98 (2000), likely unconstitutional disparate treatment between those voters protected by the

Decree, and all other Ohio provisional voters. Id. Accordingly, the Sixth Circuit remanded to

this Court to address and remedy this constitutional concern in the context of a motion to modify

the Decree. Id. at *20.

This Court’s October 26, 2012 Order resolved the parties’ competing motions for

modification of the Consent Decree. 10/26/12 Order at 17-21. Defendants moved to excise

Section III(5)(b)(vi) of the Decree, which provided that provisional ballots covered by the

Decree could not be disqualified on the basis that “[t]he voter did not complete or properly

complete and/or sign the provisional ballot application for reasons attributable to poll worker

error.” NEOCH Dkt. 342 & 210. Plaintiffs moved to extend the protections of Section

III(5)(b)(vi) and (vii) to all provisional voters. NEOCH Dkt. 338 & 338-1. Paragraph (vii)

guards against the disqualification of provisional ballots when “[t]he poll worker did not

complete or properly complete and/or sign the provisional ballot application witness line and/or

the provisional ballot affirmation form, except for reasons permitted by the governing statute.”

NEOCH Dkt. 210.

In arguing the motions to the Court, Plaintiffs explained that they were concerned that the

Secretary would disqualify provisional ballots on the ground that the voter did not record

identification information, even though that was poll-worker duty. 10/24/12 Trans. at 42:22-

43:5, 55:15-56:11. Defendants responded by representing to the Court that recording

information regarding a voter’s proffered identification is the poll worker’s responsibility and

therefore falls within the protection of Section III(5)(b)(vii) of the Decree:

Mr. Epstein: [Plaintiffs’ counsel] suggested to you, for example, that theremight still be poll worker error because there is an obligation to


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record on the form the mode of identification used, and, if that'smissing, that’s a defect in the ballot. But that scenario is notcovered by the provision we’re talking about because, as they say,the obligation to write down the identifying information is imposedupon the poll worker, not upon the voter. In Section 7 it says thatwe won’t invalidate ballots based upon the poll worker’s failure towrite something down. So we’re not talking about that scenario.That scenario, in fact, doesn’t even deal with an affirmation that isdeficient because it is lacking a printed name or a signature, whichis all that [Consent Decree Section III(5)(b)(vi)] is talking about.

10/24/12 Trans. at 50:5-20 (emphasis added); see also id. at 60:3-11. As discussed below, the

obligation of the poll worker to record this information to which Defendants’ counsel referred at

argument is set forth in Ohio Revised Code §§3505.181(B)(6)-(7) and 3505.182.

On October 26, 2012, the Court issued an Order granting Defendants’ motion to remove

Section III(5)(b)(vi) from the Decree, but leaving in place the protections of Section

III(5)(b)(vii). 10/26/12 Order at 17-21. The Court denied Plaintiffs’ motion to extend Section

III(5)(b)(vii), finding there was no need to do so:

Critically, Section III(5)(b)(vii) remains in the Consent Decree to ensure noprovisional ballot is disqualified when a poll worker fails to complete herdesignated portion of the envelope and the State does not dispute that. SEIU Dkt.28 at 17. Directive 2012-01, which Secretary Husted issued on January 4, 2012,expressly instructed county boards of election that provisional ballots are not to berejected if the poll worker fails to fill out his or her portion of the provisionalballot envelope.

Id. at 20-21 (internal citation omitted). If, based on the rules applicable to these provisional

ballots at the time, there was no disparate treatment creating an equal protection violation, then

there was no need to extend the protections of Section III(5)(b)(vii) to all voters.

B. Ohio Law Requires Election Officials – and Not Voters – to Record the Type ofIdentification Provided By a Voter and to Indicate Whether a Voter Needs toProvide Any Additional Information to the Board of Elections

Ohio Revised Code §3505.181(B)(6) provides that, once a voter casting a provisional

ballot proffers identification, “the appropriate local election official shall record the type of


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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 . . . .” (Emphasis added.) Section 3505.181(B)(7)

further provides that when a voter casts a provisional ballot, “the election official shall indicate,

on the provisional ballot verification statement . . ., that the individual is required to provide

additional information to the board of elections . . . .” (Emphasis added.)

The Ohio Revised Code also sets forth a provisional ballot affirmation form to be printed

on provisional ballot envelopes, which includes a “Verification Statement” to be completed and

signed by the poll worker. O.R.C. §3505.182. This Verification Statement confirms that it is the

poll worker – not the voter – who is required to record the type of identification (if any) a voter

proffers. See id. (Verification Statement listing nine different categories of identification

provided by voter, with instructions that “election official must check the following true

statement concerning identification provided by the provisional voter, if any”) (emphasis added).

It further confirms that it is the poll worker’s duty, not the voter’s, to specify what additional

identification or information, if any, the voter is required to provide to the elections board within

the ensuing ten days. See id. (Verification Statement providing: “If applicable, the election

official must check the following true statement concerning additional information needed to

determine the eligibility of the provisional voter.”) (emphasis added).

By imposing such affirmative-verification duties on election officials, Ohio law ensures

that any questions regarding a voter’s identification are resolved on the spot or, consistent with

due process, the voter is informed that he or she needs to provide additional information to the

board of elections. This protects the integrity of the voting process, and provides a reasonable

opportunity to resolve deficiencies.


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C. The Secretary’s Redesigned Provisional Ballot Affirmation Form (Form 12-B)Improperly Purports to Shift the Duty to Verify and Record Information from thePoll Worker to the Voter

In January 2012, the Secretary issued Directive 2012-01 regarding the counting of

provisional ballots. Despite the fact that the Ohio Revised Code provides a statutory provisional

ballot affirmation form, O.R.C. §3505.182, Directive 2012-01 included a redesigned provisional

ballot affirmation form, “Form No. 12-B,” that county boards of elections must use. See

NEOCH Dkt. 346-1 (Chandra Decl., Ex. 2). The form is divided into two sections: one that the

voter is requested to complete (labeled “MANDATORY INFORMATION REQUIRED FOR

YOUR BALLOT TO COUNT”), and one for the election official to complete. Id.

The section for the voter to complete is broken into 3 steps. “Step 1” requires the

provisional voter to print his or her full name. Id. And “Step 3” asks the voter to sign the sworn

statement that he or she is eligible to vote in the election. Id. Both of these steps are consistent

with information provisional voters are required to provide under Ohio Revised Code

§§3505.181(B)(2) and 3505.182.

“Step 2” covers all forms of identification a voter may proffer to a poll worker. It

requires the voter to provide the last four digits of his or her social-security number; to write his

or her full eight-digit Ohio driver’s license number; or to “show . . . your precinct election

official one of the forms of identification listed below” and to check a box indicating which one

was shown, or to “complete Form 10-T” (with no explanation that Form 10-T is an affirmation a

voter who cannot provide identification may complete). Id. It then identifies various types of

potential documentary identification. Step 2 of the Secretary’s Form states that if a provisional

voter fails either to show one of the listed forms of identification or to complete Form 10-T, “the

board of elections will conclude that you did NOT show ID to your precinct election official and


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you must show ID at the board of elections during the 10 days after the election for your vote to

be eligible to be counted.” Id.

The poll worker’s portion of Form 12-B contains no place for the poll worker to record

information regarding identification proffered by the voter; only Step 2 of the voter’s section of

the form provides space to record this information. Ohio law, however, does not require voters

to record any of this information in order to have their ballot counted. Instead, as discussed

above, and as represented to this Court by the Secretary on October 24, 2012 (10/24/12 Tr. at

50:5-20), it is the poll worker’s duty to record the type of identification proffered or to record the

last four digits of the voter’s Social Security (O.R.C. §§3505.181(B)(6), 3505.182), and to record

whether the voter needs to provide additional information to the county board. Id.

§§3505.181(B)(7), 3505.182. (Also missing from the Secretary’s Form 12-B is any statutorily

required record of whether the voter needs to bring additional information to the board.)

D. NEOCH Plaintiffs Seek Confirmation from Secretary of Section III(5)(b)(vii)’sScope and, Receiving No Response, File Motion for Clarification

Based on the representation of the Secretary to this Court on October 24, 2012, and this

Court’s October 26, 2012 decision, and the clear statutory duty of poll workers to record voters’

Social Security number, driver’s license number, or other form of identification proffered,

counsel for NEOCH Plaintiffs wrote to the Secretary and requested confirmation that the

Secretary would, under Section III(5)(b)(vii) of the Decree and Directive 2012-01, ensure that

county boards of elections not reject provisional ballots on the grounds that “Step 2” of the

Provisional Ballot Affirmation Form is incomplete or incorrectly completed. NEOCH Dkt. 346-

1 (Chandra Decl., Ex. 1). Plaintiffs’ counsel followed up with a voicemail message, which went

unreturned. Id. ¶¶3-4.


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When Plaintiffs received no response from the Secretary, on November 1, 2012,

Plaintiffs filed an emergency motion for clarification of the scope of Section III(5)(b)(vii).

Plaintiffs explained that clarification was needed before the county boards begin counting

provisional ballots because, in analyzing the ballots for deficiencies, the boards may not realize

that a failure to complete or incorrect completion of the identification information requested on

the provisional ballot form falls within the protection of Section III(5)(b)(vii) of the Decree.

NEOCH Dkt. 346.

E. The Secretary’s Directive 2012-54, Issued on the Eve of the Election, Reverses theApproach Taken in Directive 2012-01 and Contradicts the Secretary’s October 24,2012 Assurances to This Court

Secretary Husted issued Directive 2012-54 around or shortly after 6 p.m. on Friday,

November 2, 2012, asserting that the Directive was required by this Court and the Sixth Circuit’s

orders. Chisholm Decl. ¶2 & Ex. A. Directive 2012-54 differs significantly from previous

Directives that address the counting of ballots with incomplete identification information, despite

the fact that neither this Court nor the Sixth Circuit required such changes.

Directive 2012-01, which governed the counting of provisional votes until this past

Friday evening, provided only for disqualification of ballots that are missing printed names or

signatures. It did not require disqualification of ballots with incomplete or incorrectly completed

information regarding identification. See Chisholm Decl., Ex. B at 2. Thus, even though Form

12-B was issued together with Directive 2012-01, that Directive did not identify the failure to

complete the identification information on the form as a basis for rejecting the ballot. Id.

In contrast, the new Directive 2012-54 expressly requires that boards “must reject [a]

provisional ballot” “[i]f the voter did not provide identification on the provisional ballot

affirmation, did not complete SOS Form 10-T, and did not return to the Board within the ten


10

days after the election to remedy the missing item.” Chisholm Decl., Ex. A at p. 3 (“Step 2”)

(emphasis in original). Nowhere does the Directive acknowledge that it is the poll worker’s

responsibility to record the identification provided.

ARGUMENT

I. The NEOCH Consent Decree Should Be Modified to Extend the Protections ofSection III(5)(b)(vii) to All Provisional Voters

A. The Court Should Clarify that Under Section III(5)(b)(vii) of the ConsentDecree Provisional Ballots May Not Be Disqualified Because the Ballot FormInformation Regarding the Identification Proffered By the Voter IsIncomplete

On remand from the Sixth Circuit, Plaintiffs urged the Court to remedy any equal

protection violation by extending the protections of Section III(5)(b)(vi) and (vii) to all

provisional voters. NEOCH Dkt. 338 & 338-1. Defendants, by contrast, asked the Court to

remove Section III(5)(b)(vi), but not Section III(5)(b)(vii), from the Decree. NEOCH Dkt. 342.

In resolving these competing motions to modify the Consent Decree, this Court relied on

the protections for voters provided by Section III(5)(b)(vii), and by then-governing Directive

2012-01, which the Court understood would ensure that provisional ballot envelopes that are

incomplete as the result of poll workers’ failure to record voter identification information would

not be rejected on that ground. 10/26/12 Order at 19-20. This Court also relied on the

Secretary’s assurances regarding the scope of paragraph (vii). See supra at 4-5 (quoting

10/24/12 Trans. at 50:5-20).

In granting the Secretary’s motion to remove paragraph (vi) from Section III(5)(b), the

Court found that there would be few circumstances in which a missing name or signature would

be the result of poll-worker error. 10/26/12 Order at 19; see also NEOCH, 2012 WL 4829033 at

*16 (“Ohio law does not task poll-workers with quality control of ballot affirmations.”). In


11

contrast, “Ohio law does . . . task poll-workers” with recording the identification proffered by

the voter. Id. (emphasis added); see also id. (quoting O.R.C. §3505.181(B)(6)); O.R.C.

§3505.182. As the Secretary represented to this Court: “the obligation to write down the

identifying information is imposed upon the poll worker.” 10/24/12 Tr. at 50:5-20. Thus, there

can be no dispute that Ohio election officials are responsible for recording the identification

information proffered by provisional voters.

The equitable doctrine of judicial estoppel also weighs in favor of requiring the Secretary

to abide by the assurances he provided to this Court. “‘[W]here a party assumes a certain

position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter,

simply because his interests have changed, assume a contrary position, especially if it be to the

prejudice of the party who has acquiesced in the position formerly taken by him.’” New

Hampshire v. Maine, 532 U.S. 742, 749 (2001) (quoting Davis v. Wakelee, 156 U.S. 680, 689

(1895)); see also Warda v. C.I.R., 15 F.3d 533, 538 (6th Cir. 1994). Here, the doctrine of

judicial estoppel applies to bar any argument by the Secretary that Section III(5)(b)(vii) does not

protect provisional ballot affirmations with incomplete identification information. Such an

argument is directly contrary to the Secretary’s previous representation to the Court, a

representation on which the Court relied, and unfairly would disenfranchise voters and deprive

them of the protections negotiated by the parties to the Decree.

Yet, in direct contrast to the Secretary’s representations to this Court, the language of the

Consent Decree, and Directive 2012-01, Directive 2012-54 now requires county boards of

elections to reject provisional ballots where poll workers have failed in this duty to record voter

identification information. Thus, this Court should clarify that Section III(5)(b)(vii) prohibits the


12

Secretary from disqualifying provisional ballots on the basis that they have incomplete

information in “Step 2” of the form regarding the voter’s proffered identification.

B. This Court Should Revise the October 26, 2012 Order in Light of theSecretary’s Eleventh-Hour Directive 2012-54 and Modify the Decree toExtend the Protection Against Poll-Worker Failure to Record Information toAll Provisional Voters

The Court’s October 26, 2012 Order, in concluding that Section III(5)(b)(vii)’s

protections did not need to be extended to all provisional voters, relied on its understanding that

the section’s protections against poll-worker error were mirrored in then-governing Directive

2012-01, which “expressly instructed county boards of election that provisional ballots are not to

be rejected if the poll worker fails to fill out his or her portion of the provisional ballot

envelope.” 10/26/12 Order at 20-21 (internal citation omitted).

As Plaintiffs’ November 1, 2012 motion explained, at the time the motion was filed

(before the Secretary issued Directive 2012-54 in the evening on Friday, November 2, 2012),

there was no concern with the potential disparate treatment of voters covered by the Decree and

all other Ohio provisional voters, because Directive 2012-01 did not require the disqualification

of provisional ballots with incomplete identification information. NEOCH Dkt. 346 at 9. The

factual predicate for this Court’s decision not to extend Section III(5)(b)(vii)’s protections to all

voters, however, no longer exists. Because the Secretary rescinded Directive 2012-01, replacing

it with Directive 2012-54, the protections of Section III(b)(5)(vii) of the Decree now extend only

to SSN-4 voters.

Thus, the Secretary – by issuing Directive 2012-54 on the eve of the election – has

created the exact equal protection problem against which the Sixth Circuit warned, and that the

Sixth Circuit remanded to this Court to resolve. The Sixth Circuit explained that the differential

treatment of similarly situated provisional ballots “appears to create” an equal protection


13

violation. NEOCH, 2012 WL 4829033 at *19; see also id. at *14; Dunn v. Blumstein, 405 U.S.

330, 336 (1972) (“[A] citizen has a constitutionally protected right to participate in elections on

an equal basis with other citizens in the jurisdiction.”); Bush v. Gore, 531 U.S. at 104-05. The

Sixth Circuit remanded to the District Court to address, on a motion to modify the Decree, the

equal protection problem presented by differential treatment of ballot affirmation flaws, and

noted that decisions regarding modification of consent decrees are generally left to district court

discretion. 2012 WL 4829033 at *20.

Because Section III(5)(b)(vii) of the Decree is properly construed as protecting from

disqualification provisional ballots that have incomplete identification information, and Directive

2012-54 now, for the first time, requires disqualification of those ballots not otherwise protected

by the Decree, this Directive results in unconstitutional disparate treatment of similarly situated

ballots. Plaintiffs therefore ask the Court, pursuant to Federal Rule of Civil Procedure 60 and its

inherent equitable authority, as recognized by the Sixth Circuit in remanding to this Court (2012

WL 4829033 at *20), to modify the Decree to prohibit the rejection of provisional ballots cast by

any voter as a result of incomplete or improperly completed identification information on the

ballot affirmation form, unless a county board of elections first determines that the voter failed to

proffer acceptable identification or provide the last four digits of his or her Social Security

number to a poll worker, and declined to complete a Form 10-T. Such modification is necessary

to both remedy the equal protection problem that Directive 2012-54 causes and preserve the

Decree’s current protections for SSN-4 voters. It also avoids the constitutional violations that

would occur if the Secretary were permitted to disenfranchise voters for purported deficiencies in

recording information the poll workers, not the voters, are required to record.


14

The alternative solution to resolving the disparate treatment problem – eliminating

Section III(5)(b)(vii) – would deprive the NEOCH Plaintiffs of the protections they obtained in

return for not pursuing their constitutional claims. As the Sixth Circuit held in NEOCH, there

are significant public interests served by holding the State to the bargain it struck to resolve the

case. 2012 WL 4829033 at *19.

II. The Court Should Issue a Preliminary Injunction in SEIU Local 1 v. HustedEnjoining the Rejection of Provisional Ballots with Incomplete IdentificationInformation on the Ballot Forms

For the same reasons that this Court should modify the Consent Decree to protect all

provisional voters from having their votes disqualified on the basis that the identification

information on the ballot is incomplete or incorrectly completed, the Court should preliminarily

enjoin Defendants from implementing Directive 2012-54 to disqualify these ballots.

SEIU Local 1 Plaintiffs easily satisfy the four factors for a preliminary injunction. See

NEOCH, 2012 WL 4829033 at *8. There can be no dispute that Plaintiffs’ members, as well as

other Ohio voters, are likely to be irreparably harmed by Directive 2012-54’s requirement that

provisional ballots with incomplete information regarding identification proffered by the voter be

disqualified and not counted. See id. at *15. That harm alone weighs very heavily in favor of

an injunction. Neither the State nor any other party is injured by counting these otherwise valid

ballots of lawfully registered voters. Significantly, the State cannot claim that it would be

harmed by an injunction that places the duty to record the voters’ identification information on

the poll worker, not the voter, given that Ohio law already squarely places that duty on the poll

worker, and given that until Friday, November 2, 2012 at 6 p.m., that is what the Consent Decree

and the Secretary’s Directives provided.


15

Finally, Plaintiffs are likely to succeed on the merits and, at a minimum, have presented

“questions going to the merits so serious [and] substantial . . . to make them a fair ground for

litigation” and warranting preliminary injunctive relief. Id. at *8 (internal quotation marks

omitted). Consistent with the Sixth Circuit’s decisions in NEOCH, 2012 WL 4829033, and

Hunter v. Hamilton County Board of Elections, 635 F.3d 219, 243-44 (6th Cir.2011), the

disqualification of ballots on the grounds that a poll worker has failed to perform his duties to

record information imposes a substantial burden on the right to vote. Not only does Ohio law

unambiguously require election officials, and not voters, to record the information about

proffered identification and to inform voters if additional information must be presented to the

board of elections, O.R.C. §§3505.181(B)(6)-(7) & 3505.182, but there is a good reason this

responsibility lies with trained election officials and not the voters. For example, it is absurd to

expect that a voter – without any poll-worker instruction – will be able to “complete Form 10-T,”

as the Secretary’s Provisional Ballot Affirmation Form requires. See Chisholm Decl., Ex. A.

Nor will an average voter be able to navigate the form’s complicated instructions as to when an

address on a photo identification needs to be current and when it does not. Id. Under the

Constitution, the provisional ballot form may not be converted to a literacy or logic test. Cf.

Crawford, 553 U.S. at 188 (plurality) (noting “even rational restrictions on the right to vote are

invidious if they are unrelated to voter qualifications”); Oregon v. Mitchell, 400 U.S. 112 (1970)

(upholding Congress’ power to prohibit literacy tests).

Balanced against this substantial burden, there is no evidence of any legitimate state

interest actually furthered by disqualifying ballots with incomplete information in “Step 2” of the

ballot form. Nor could there be, given that Ohio law expressly places the responsibility for

recording and verifying identification with election officials (and until November 2, 2012 the


16

Secretary did not require rejecting these ballots). Therefore, under Burdick v. Takushi, 504 U.S.

428, 433-34 (1992), Crawford v. Marion County Bd. of Elections, 553 U.S. 181, 190-91 (2008)

(plurality), NEOCH, 2012 WL 4829033 *9-13, and Obama for America v. Husted, __ F.3d. __,

2012 WL 4753397 *4-7 (6th Cir. Oct. 5, 2012), disqualifying these votes violates equal

protection.

Finally, the Secretary’s eleventh-hour attempt to change the rules applicable to these

ballots is contrary to every argument made by Ohio and the Secretary to the Sixth Circuit in

seeking an emergency stay of this Court’s October 24, 2012 injunction protecting voters who

cast wrong-location provisional ballots from poll-worker error. Defendants represented that a

litany of harms would be caused by any change to the rules for poll workers and the county

boards. Chisholm Decl., Ex. C at 3, 8-9. Secretary Husted’s action comes even closer to the

election, mere days in advance. Every argument made by the Secretary to the Sixth Circuit as to

why the October 26, 2012 injunction should be stayed weighs heavily in favor of enjoining this

Directive, insofar as it is a last-minute change in the rules for counting provisional ballots, and

one that will require the disenfranchisement of lawfully registered voters.

CONCLUSION

For the foregoing reasons, the NEOCH Plaintiffs respectfully request that in NEOCH v.

Husted the Court clarify its October 26, 2012 opinion and order and extend the protections of

Section III(5)(b)(vii) of the Consent Decree to all provisional voters such that no provisional

ballot may be rejected on the grounds that the identification information provided on the

Provisional Ballot Affirmation Form is incomplete or incorrectly completed, unless a county

board of elections first determines that the voter failed to provide poll workers with the last four

digits of his or her Social Security number or show other acceptable identification, and verifies


17

that the voter declined to complete a Form 10-T affirmation. The SEIU Local 1 Plaintiffs

respectfully request that the Court preliminarily enjoin Defendants from implementing Directive

2012-54 to the extent it requires the disqualification of ballots with incomplete or incorrectly

completed identification information on the Provisional Ballot Affirmation Form, and further

preliminarily enjoin Defendants from rejecting any provisional ballot on the grounds that the

identification information provided on the Provisional Ballot Affirmation Form is incomplete or

incorrectly completed, unless a county board of elections first determines that the voter failed to

provide poll workers with the last four digits of his or her Social Security number or show other

acceptable identification, and verifies that the voter declined to complete a Form 10-T

affirmation.

Dated: November 4, 2012 Respectfully submitted,

/s/ Barbara J. Chisholm _______________By: Barbara J. Chisholm, for SEIU Local 1Plaintiffs and NEOCH Plaintiffs

Plaintiffs’ Counsel in SEIU Local 1:

MICHAEL J. HUNTER, trial attorney(0018756)CATHRINE J. HARSHMAN (0079373)Hunter, Carnahan, Shoub, Byard & Harshman3360 Tremont Road, Suite 230Columbus, Ohio 43221Telephone: (614) 442-5626E-mail: [email protected]

Attorneys for All SEIU Local 1 Plaintiffs

Plaintiffs’ Counsel in NEOCH:

CAROLINE H. GENTRY, Trial Attorney(0066138)DANIEL B. MILLER (0080767)Porter, Wright, Morris & Arthur LLPOne South Main Street, Suite 1600Dayton, OH 45402Telephone: (937) 449-6748E-mail: [email protected]@porterwright.com

MICHAEL J. HUNTER (0018756)CATHRINE J. HARSHMAN (0079373)Hunter, Carnahan, Shoub, Byard & Harshman3360 Tremont Road, Suite 230Columbus, Ohio 43221Telephone: (614) 442-5626E-mail: [email protected]@hcands.com


18

STEPHEN P. BERZON, pro hac viceSTACEY M. LEYTON, pro hac viceBARBARA J. CHISHOLM, pro hac viceDANIELLE LEONARD, pro hac viceAltshuler Berzon LLP177 Post Street, Suite 300San Francisco, CA 94108Telephone: (415) 421-7151E-mail: [email protected]

Attorneys for Plaintiffs SEIU Local 1, USW,UAW Local 1005, UAW Local 863, UFCWLocal 75, UFCW Local 880, UFCW Local1059, and ICWUC

PENDA HAIR, pro hac viceDONITA JUDGE, pro hac viceUZOMA NKWONTA, pro hac viceAdvancement Project1220 L Street, N.W., Suite 850Washington, D.C. 20005Telephone: (202) 728-9557E-mail: [email protected]

Attorneys for Plaintiff Ohio OrganizingCollaborative

SUBODH CHANDRA (0069233)The Chandra Law Firm, LLC1265 W. 6th Street, Suite 400Cleveland, OH 44113-1326Telephone: (216) 578-1700E-mail: [email protected]

Attorneys for Plaintiffs NEOCH and SEIULocal 1199

STEPHEN P. BERZON, pro hac viceSTACEY M. LEYTON, pro hac viceBARBARA J. CHISHOLM, pro hac viceDANIELLE LEONARD, pro hac viceAltshuler Berzon LLP177 Post Street, Suite 300San Francisco, CA 94108Telephone: (415) 421-7151E-mail: [email protected]@[email protected]@altber.com

Attorneys for Plaintiff SEIU Local 1199

DONALD J. MCTIGUE, Trial Attorney(0022849)MARK A. MCGINNIS (0076275)McTigue Law Group550 East Walnut StreetColumbus, OH 43215Telephone: (614) 263-7000E-mail: [email protected]

Attorneys for Intervenor-Plaintiff OhioDemocratic Party


19

CERTIFICATE OF SERVICE

I certify that on November 4, 2012, I electronically filed the foregoing with the Clerk of

Court using the CM/ECF system, which will send notification of such filing to the counsel of

record in this case.

/s/ Barbara J. Chisholm______________Barbara J. ChisholmALTSHULER BERZON LLP177 Post Street, Suite 300San Francisco, CA 94108(415) 421-7151 / (415) 362-8064 [email protected]

Counsel for Plaintiff SEIU Local 1, USW, UAWLocal 1005, UAW Local 863, UFCW Local 75,UFCW Local 880, UFCW Local 1059, and ICWUCin SEIU Local 1 v. Husted

Counsel for Plaintiff SEIU District 1199 in NEOCHv. Husted



EASTERN DIVISION


Plaintiffs,

vs.


Defendant

and

STATE OF OHIO



Plaintiffs

vs.

JON HUSTED, et al.,

::::::::::::::::::::::::::::::

Case Nos. 2:06-CV-896 and 2:12-CV-562



DECLARATION OF BARBARA J.CHISHOLM IN SUPPORT OF NEOCHPLAINTIFFS’ EMERGENCY MOTIONFOR CLARIFICATION AND FORMODIFICATION OF CONSENTDECREE; AND SEIU LOCAL 1PLAINTIFFS’ MOTION FORPRELIMINARY INJUNCTION

Case: 2:12-cv-00562-ALM-TPK Doc #: 97-1 Filed: 11/05/12 Page: 1 of 4 PAGEID #: 6311

1

DECLARATION OF BARBARA J. CHISHOLM

I, Barbara J. Chisholm, declare the following based on my personal knowledge:

1. I am a partner at the law firm of Altshuler Berzon LLP, and am one of the

attorneys for Plaintiffs in the above-captioned matters. I make this declaration in support of the

NEOCH Plaintiffs’ Motion for Clarification and for Modification of Consent Decree, and SEIU

Local 1 Plaintiffs’ Motion for Preliminary Injunction.

2. On November 1, 2012, in an electronic communication to the Court’s chambers,

counsel for Secretary of State Husted stated that the Secretary intended to issue a Directive

complying with this Court’s orders at 3:00 p.m. on Friday, November 2, 2012. Therefore, I

instructed a secretary in my law office to check the Secretary of State’s website regularly

beginning at 3:00 p.m. (ET) for the new Directive. Additionally, at approximately 4:12 p.m.

(ET) on November 2, 2012, I sent an e-mail to the Secretary’s counsel asking that he provide

Plaintiffs’ counsel a courtesy copy of the anticipated Directive when it issued, but I did not

receive a response to that e-mail. After checking the Secretary’s website approximately every

15-20 minutes, we first found Directive 2012-54 posted on the website

(<http://www.sos.state.oh.us/SOS/elections/electionsofficials/Rules/2012Directives.aspx>), at

approximately 6:20 p.m. (ET) on November 2, 2012.

3. Attached hereto as Exhibit A is a true and correct copy of Directive 2012-54,

which is available on the Secretary of State’s website at < http://www.sos.state.oh.us/

SOS/elections/electionsofficials/Rules/2012Directives.aspx>.

4. Attached hereto as Exhibit B is a true and correct copy of Directive 2012-01,

including Form 12-B that was issued together with the Directive, which is available on the


2

Secretary of State’s website at < http://www.sos.state.oh.us/SOS/elections/electionsofficials/

Rules/2012Directives.aspx>.

5. Attached hereto as Exhibit C is a true and correct copy of Defendants’ Emergency

Motion to Stay Injunction Pending Appeal, filed in the SEIU Local 1 v. Husted matter in the

United States Court of Appeals for the Sixth Circuit on October 26, 2012.

I declare under penalty of perjury under the laws of the United States that the foregoing

is true and correct to the best of my knowledge.

Executed this 4th day of November, 2012 at San Francisco, California.

/s/ Barbara J. ChisholmBarbara J. Chisholm


3


I certify that on November 4, 2012, I electronically filed the foregoing with the Clerk of

Court using the CM/ECF system, which will send notification of such filing to the counsel of

record in this case.

/s/ Barbara J. Chisholm______________Barbara J. ChisholmALTSHULER BERZON LLP177 Post Street, Suite 300San Francisco, CA 94108(415) 421-7151 / (415) 362-8064 [email protected]

Counsel for Plaintiff SEIU Local 1, USW, UAWLocal 1005, UAW Local 863, UFCW Local 75,UFCW Local 880, UFCW Local 1059, and ICWUCin SEIU Local 1 v. Husted

Counsel for Plaintiff SEIU District 1199 in NEOCHv. Husted


EXHIBIT A


DIRECTIVE 2012-54 November 2, 2012 To: All County Boards of Elections

Members, Directors, and Deputy Directors Re: Determining the Validity of Provisional Ballots and the Modified NEOCH Consent

Decree SUMMARY The validity of certain provisional ballots has been the subject of ongoing litigation since 2006. Based on very recent court decisions, some provisional ballots cast at the wrong precinct but at either the correct polling place on Election Day or at the correct board of elections office1 on or after the 28th day before the election must be remade (consistent with Directive 2012-22) and counted for those races in which the voter was eligible to cast a ballot. Because of these eve-of-election court decisions, I am required to issue these instructions at this late hour. In order to avoid confusion, Directives 2012-01 and Directive 2012-44 are hereby rescinded. Additionally, to avoid voter confusion and conflicts with recent court decisions, boards of elections must not post the “Judge Carr Notice.” As such, Advisory 2011-04 is rescinded. The Directive is issued to provide uniformity across Ohio’s 88 county boards of elections in reviewing provisional ballot affirmations on provisional ballot envelopes to determine the eligibility of the ballots to be counted by providing county boards of elections with a mandatory six-step procedure. PROVISIONAL BALLOT AFFIRMATION ENVELOPES All Boards must use SOS Form 12-B, originally provided with Directive 2012-01 and attached to this Directive, on provisional ballot affirmation envelopes for the November 2012 General Election. All Boards must also provide precinct election officials SOS Form 12-D, originally provided with Directive 2012-44 and attached to this Directive, for the precinct election official to

1 Throughout this Directive, when referring to the “board of elections office” this also includes another site designated by the board to hold in-person absentee voting. R.C. 3501.11(Z)


http://www.sos.state.oh.us/SOS/Upload/elections/directives/2012/Dir2012-22.pdf


http://www.sos.state.oh.us/SOS/Upload/elections/directives/2012/Dir2012-44.pdfhttp:/www.sos.state.oh.us/SOS/Upload/elections/directives/2012/Dir2012-44.pdf

http://www.sos.state.oh.us/SOS/Upload/elections/advisories/2011/Adv2011-04.pdf

http://www.sos.state.oh.us/sos/upload/elections/forms/12-B.pdf


Directive 2012-54 Determining the Validity of Provisional Ballots and NEOCH Consent Decree Page 2 of 8

complete when a 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. GENERAL REMINDERS ON PROCESSING PROVISIONAL BALLOTS

• Boards of elections may begin examining provisional ballot envelopes the day after the election.2

• The board of elections must adopt a provisional ballot policy, under which it may

designate bipartisan teams to examine and categorize provisional ballot envelopes; however, only the board members themselves can determine the validity of each provisional ballot.

• The board members themselves determine the validity of each provisional ballot by majority vote at a properly noticed public meeting.

• A board of elections must not start counting ANY provisional ballot until AFTER the

board members themselves have determined the validity or invalidity of ALL provisional ballots cast in that county.3

• Boards must complete the examination and counting of provisional ballots no later than

the twenty-first day after the election.4

DETERMINING THE VALIDITY OF PROVISIONAL BALLOTS Step 1: Determine whether the affirmation statement on the provisional ballot envelope

contains both the voter’s printed name and either a valid signature or a note by the precinct election official on the signature line indicating that the voter declined to execute an affirmation.

• If the affirmation statement contains both the voter’s printed name and either a valid

signature or a note on the signature line that the voter declined to sign, proceed to Step 2.

• If the affirmation statement does not contain both the voter’s printed name and

either a valid signature or declination, then the Board must reject the provisional ballot.5

The presence of the voter’s printed name and signature is a requirement of state law, affirmed by the Ohio Supreme Court in Skaggs v Brunner, and the Sixth Circuit Court of Appeals in SEIU v. Husted. 2 R.C. 3505.183(E)(1) 3 R.C. 3505.183(D) 4 R.C. 3505.32(A) 5 R.C. 3505.183(B)(4)(a)(iii)



Step 2: Determine whether the provisional voter provided at least one of the following: the last four digits of the voter’s social security number, the voter’s driver’s license number, OR a notation that the voter provided another form of acceptable identification.

• If the voter provided one of the acceptable forms of identification proceed to Step 3.

• If the voter did not provide one of the acceptable forms of identification but

completed a Form 10-T, proceed to Step 3.

• If the voter did not provide identification on the provisional ballot affirmation but returned to board of elections within ten days after the election6 and provided identification or signed the SOS Form 10-T proceed to Step 3.

• If the voter did not provide identification on the provisional ballot affirmation, did not complete SOS Form 10-T , and did not return to the Board within the ten days after the election to remedy the missing item, the Board must reject the provisional ballot.

Step 3: Determine whether the Board can verify the identity of the voter based on the

voter’s printed name, signature, and identification information provided on the provisional ballot affirmation or provided by the voter within the ten day period.

• If the Board can verify the identity of the voter based upon the information provided

on the provisional ballot affirmation and/or provided by the voter within ten days of the election, proceed to Step 4.

• If the Board cannot verify the identity of the voter based upon the information

provided on the provisional ballot affirmation and/or the information provided by the voter within ten days of the election, the Board must reject the provisional ballot.7

Note that verification of identity includes at least one search of the county’s local voter registration database by entering as much or as little information as is available, and by using “wildcard” searches if available, and at least one

6 The only four reasons to require a provisional voter to provide additional information to the board of elections

during the ten days after the day of an election are: • The voter possesses a social security number or proper identification, but was unable to provide it to the

precinct election official; R.C. 3505.181(A)(3) • The voter possesses a social security number or proper identification, but declined to provide it to the precinct

election official; R.C. 3505.181 (A)(13) • The voter does not possess a social security number or proper identification, and refused to sign a SOS Form

10-T; R.C. 3505.181(A)(12) • The voter was challenged at the polling place and his or her eligibility to vote could not be determined by the

precinct election officials; R.C. 3505.181(A)(7) 7 R.C. 3505.183(B)(4)(b)(i); State ex rel. Skaggs v. Brunner (2008), 120 Ohio St. 3d 506.


http://www.sos.state.oh.us/sos/upload/elections/forms/10-T.pdf


search of all counties using the statewide voter registration database by entering as much or as little information as is available. Unlike a voter registration card or absentee ballot application, date of birth and address are not required on a provisional ballot affirmation. Therefore, a provisional ballot affirmation that does not have the voter’s date of birth and/or address is valid so long as the board can verify the voter’s identity and registration status in the State of Ohio.

Step 4: Determine whether the voter is a registered voter anywhere in the State of Ohio

at least 30 days before the election.

• If the voter was registered to vote anywhere in the State of Ohio at least 30 days before the election, proceed to Step 5.

• If the voter was not registered to vote anywhere in the State of Ohio at least 30 days

before the election, then the Board must reject the provisional ballot.8

Step 5: Determine whether the voter is a resident of the county and precinct in which the voter offers to vote.9

• If the voter is a resident of the county and precinct in which the provisional ballot was

cast, then the Board must accept and count the provisional ballot;

• If the voter moved and provided a new address within the precinct on the back of the provisional ballot envelope, then the voter is considered a resident of the new county and precinct and the Board must accept and count the provisional ballot;

• If the voter cast the provisional ballot in the wrong precinct, but in the correct polling

place, including the board of elections office, and a precinct election official did not complete and attach SOS Form 12-D to the provisional ballot envelope, the Board must remake and count the provisional ballot for only those contests for which the voter was otherwise eligible to vote.

• If the voter cast the provisional ballot in the wrong precinct, but in the correct polling

place, including the board of elections office, and a precinct election official did complete and attach SOS Form 12-D, but the Board verified that the precinct to which the poll worker directed the voter was the incorrect precinct, the Board must remake and count the provisional ballot for only those contests for which the voter was otherwise eligible to vote.

• If the voter cast the provisional ballot in the wrong precinct, but correct polling place,

including the board of elections office, and (1) a precinct election official completed 8 Ohio Constitution Article V, Section 1; R.C. 3505.183(B)(4)(a)(i); R.C. 3505.183(B)(4)(a)(iv); R.C.

3505.183(B)(4)(a)(vi) 9 R.C. 3503.01(A)


http://www.sos.state.oh.us/sos/upload/elections/forms/12-D.pdf

http://www.sos.state.oh.us/sos/upload/elections/forms/12-D.pdf


SOS Form 12-D and (2) the Board verified that the precinct to which the precinct election official directed the voter was the correct precinct, the Board must reject the provisional ballot.

• If the voter cast the provisional ballot in the wrong precinct and wrong polling place

the Board must reject the provisional ballot. Step 6: If you have completed Steps 1 through 5 and determined that the provisional

ballot should be rejected, consider the following: Under the consent decree issued by the federal court in Northeast Ohio Coalition for the Homeless v. Brunner, S.D. Ohio No. 2:06-cv-896, ("NEOCH"), boards of elections may not reject provisional ballots cast by voters who use only the last four digits of their Social Security number as identification for the following reason:

The poll worker did not complete or properly complete and/or sign the provisional ballot application witness line and/or the provisional ballot affirmation form, except for reasons permitted by the governing statutes.

As noted on SOS Form 12-B, failure by the precinct election official to complete the “Precinct Election Official Info” section will not result in the provisional ballot being rejected. CONSENT DECREE AS MODIFIED Boards of elections are instructed to comply with the injunctive relief cited below as provided in the April 19, 2010 Consent Decree and modified by the Court on October 26, 2012 and November 2, 2012. Additionally, each board of elections must post a notice that contains the text of the injunctive relief granted in a conspicuous place in every location in which provisional ballots are processed after an election. A copy of the notice to be posted is attached. The injunctive relief in the Consent Decree as modified is as follows: III. GENERAL INJUNCTIVE RELIEF.

4. The Court ADOPTS and annexes hereafter Directive 2008-80 as an Order of this Court.

5. Defendant Secretary of State, her agents, employees and representatives will instruct Ohio’s county Boards of Elections to adhere to the following rules regarding the casting and counting of provisional ballots for persons without identification other than a social security number:

a. Boards of Elections must count the provisional ballot cast by a voter using only the last four digits of his or her social security number as identification if all of the following conditions are met:



i. The individual who cast the provisional ballot is registered to vote;

ii. The individual is eligible to cast a ballot in the precinct and for the election in which the individual cast the provisional ballot;

iii. The provisional ballot affirmation includes a statement that the individual is registered to vote in the precinct in which the provisional ballot was cast and a statement that the individual is eligible to vote in the election in which the provisional ballot was cast;

iv. The individual’s name and signature appear in the correct place on the provisional ballot affirmation form, unless the voter declined to execute the affirmation and the poll workers complied with their statutory duties under R.C. 3505.182 and R.C. 3505.181(B)(6) when a voter declines to execute the affirmation;

v. The signature of the voter substantially conforms to the signature contained in the Board of Election’s records for that voter;

vi. The provisional ballot affirmation includes the last four digits of that voter’s social security number, which is not found to be invalid;

vii. The individual’s right to vote was not successfully challenged;

viii. The individual did not already cast a ballot for the election in which the individual cast the provisional ballot; and

ix. Pursuant to R.C. 3505.183(B)(2), the Board of Elections determines that, in addition to the information included on the affirmation, there is no additional information for determining ballot validity provided by the provisional voter or to the Board of Elections during the ten days after the day of the election that casts doubt on the validity of the ballot or the individual’s eligibility to vote.

b. Boards of Elections may not reject a provisional ballot cast by a voter, who uses only the last four digits of his or her social security number as identification, for any of the following reasons:

i. The voter provided the last four digits of a Social Security Number but did not provide a current driver’s license, state issued identification, or other document which serves as identification under Ohio law;

ii. The voter did not provide a date of birth;

iii. The voter did not provide an address that is tied to a house, apartment or other dwelling provided that the voter indicated that he or she resides at a non-building location, including but not limited to a street corner, alley or highway overpass located in the precinct in which the



voter seeks to cast a ballot and that the non-building location qualifies as the individual’s voting residence under R.C. 3503.02;

iv. The voter indicated that he or she is homeless;

v. In light of the injunction issued in SEIU Local 1 v. Husted, Section III (5) (b) (v) of the April 19, 2010 Consent Decree has been removed for the purposes of the November 6, 2012 election. County boards of election are ORDERED to comply with the Directives that govern the counting of provisional ballots cast in the correct polling location, but in the wrong precinct;

vi. The Court has removed this provision of the Consent Decree. See NEOCH v. Husted First Order issued October 26, 2012; or

vii. The poll worker did not complete or properly complete and/or sign the provisional ballot application witness line and/or the provisional ballot affirmation form, except for reasons permitted by the governing statutes.

c. Boards of Elections must observe the following rules regarding the delegation of processing provisional ballots, and determining their validity, to board staff:

i. Ultimately, the members of Boards of Elections must determine the validity of all votes cast in an election and must certify the results of all elections. However, nothing in Ohio law requires that the members of a Board of Elections must personally complete all tasks associated with preparing for that certification.

ii. Thus, Boards of Elections may, under a policy adopted by the Board, delegate the processing and some aspects of counting provisional ballots to board staff. Such processing must be done in bipartisan teams.

iii. If a Board of Elections delegates the processing of provisional ballots, it must first adopt a policy setting forth procedures for the processing of provisional ballots. Under that policy, board staff responsible for processing provisional ballots must make a recommendation to the Board as to the eligibility of each provisional ballot cast in the county, either on an individual basis, or as to groups or categories of similarly situated provisional ballots.

iv. Ultimately, the members of Board of Elections must determine the eligibility or ineligibility of all provisional ballots cast within the county in accordance with Ohio law. Boards may not delegate this task.



v. Each Board of Elections must then cause the ballots to be counted by board staff, and must include the tabulation of that count in its official canvass of the election results and, to the extent required, its certification of the election results to the Secretary of State.

If you have any questions concerning the this Directive or the examination and evaluation of provisional ballots, please contact the Secretary of State’s elections counsel assigned to your county at (614) 466-2585. Sincerely, Jon Husted


STEP 1 - Clearly PRINT your full name: First Name Middle Name/Initial Last Name Suffix

STEP 2 - Provide ONE of the following forms of identification: The Secretary of State and the Board of Elections recommend that you write the last four digits of your Social Security number.

A. Write the last four digits of your Social Security number: ___ ___ ___ ___ -or-

B. Write your full eight-digit Ohio driver’s license number, which begins with two alphabet letters followed by six numbers: ___ ___ ___ ___ ___ ___ ___ ___ -or-

C. If you did not write the last four digits of your Social Security number or your full Ohio driver’s license number, you must show to your precinct election official one of the forms of identification listed below: If you do not check one of the following boxes affirming the type of ID you showed to the precinct election official or do not complete Form 10-T (only if you are eligible to do so), the board of elections will conclude that you did NOT show ID to your precinct election official and you must show ID at the board of elections during the 10 days after the election for your vote to be eligible to be counted.

your military identification card, or a current (within 12 months) utility bill, bank statement, government check, paycheck,

or other government document (except a document from your county board of elections) containing your name and current address, or

a form of photo identification (except U.S. Passport) that was issued by the United States government or the State of Ohio containing your name, current address (or former address if ID is a driver’s license or state identification card), and an expiration date that has not passed, or

complete Form 10-T only if you do not have a Social Security number AND do not have any of the forms of identification listed above.

NOTE: If you fail to provide identification at this time you must go to your county board of elections on or before the 10th day following this election to provide a qualifying form of identification in order for this ballot to count.

STEP 3 - Sign the following statement:

I solemnly swear or affirm that I am a registered voter in the precinct in which I am voting this provisional ballot and that I am eligible to vote in this election, for which I am casting this provisional ballot. I understand that if the information I provide on this provisional ballot affirmation is not fully complete and correct, and/or if the board of elections determines that I am not registered to vote, a resident of this precinct, or eligible to vote in this election, and/or if the board of elections determines that I have already voted in this election, this provisional ballot will not be counted. I further understand that knowingly providing false information is a violation of law and subjects me to possible criminal prosecution. I hereby declare, under penalty of election falsification, that the above statements are true and correct to the best of my knowledge and belief.

VOTER’S SIGNATURE

WHOEVER COMMITS ELECTION FALSIFICATION IS GUILTY OF A FIFTH DEGREE FELONY

MA

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ATO

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FORM

ATI

ON

REQ

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Failure by the precinct election official to complete this section will not affect whether or not this provisional ballot is counted.

• This ballot is cast in precinct (list name or number of voter’s precinct)

• The name or number of this location is

• Precinct election official’s printed name Date

PREC

INCT

ELE

CTIO

N

OFF

ICIA

L IN

FO

PROVISIONAL BALLOT AFFIRMATION(R.C. 3503.16, 3505.181, .182, .183)

Form No. 12-B Prescribed by Secretary of State (1-12)Case: 2:12-cv-00562-ALM-TPK Doc #: 97-2 Filed: 11/05/12 Page: 10 of 13 PAGEID #: 6324

Notification of Change of Address/ Change of Name for Provisional Ballot Voters

Failure to complete this form will not cause your provisional ballot to be rejected.

1. Are you a U.S. citizen? Yes No 2. Will you be at least 18 years of age on or before the next general election? Yes No

If you answered NO to either of the questions, do not complete this form.3. Last Name First Name Middle Name or Initial Jr., II, etc.

4. House Number and Street (Enter new address if changed) Apt. or Lot # 5. City or Post Office 6. ZIP Code

7. Additional Rural or Mailing Address (if necessary) 8. County where you live

9. Birthdate (MO-DAY-YR) (required) 10. Ohio driver’s license No. OR 11. Phone No. (voluntary) last 4 digits of Social Security No.

12. PREvIOuS ADDRESS IF uPDAtINg CuRRENt REgIStRAtION - Previous House Number and Street

Previous City or Post Office County State

13. ChANge Of NAme ONlY Former Legal Name Former Signature

I declare under penalty of election falsification I am a citizen of the United States, will have lived in this state for 30 days immediately preceding the next election, and will be at least 18 years of age at the time of the general election.

14. Your Signature

Date_______/_______/_______ MO DAY YR

FOR BOARD uSE ONLY

SEC4010 (Rev. 10/11)City, village, twp.

Ward

Precinct

School Dist.

Cong. Dist.

Senate Dist.

House Dist.

(one form of ID required to be listed or provided)

Provisional voters should complete this form in order to notify their county board of elections that they have changed their:

• residence, or• name.

If you are completing this form notifying the board of elections that you changed your residence from one Ohio county to another Ohio county then your voter registration in your previous Ohio county will be cancelled and your voter registration will be activated in your new Ohio county.

If the board of elections determines that you were not previously registered to vote in the State of Ohio, by completing this form you are registering to vote in this county in the State of Ohio.

Important Reminders• Please read instructions carefully.

• Use blue or black ink.

• When completing Boxes 1 through 13 below, print clearly so that your handwriting can be read by your board of elections.

Instructions• Boxes 1 and 2 are required by federal law.

• Boxes 3 through 9 are required by state law.

• Box 10 is required by federal law. If you have a current and valid Ohio driver’s license you must provide that number for Box 10. If you do not have an Ohio driver’s license, you must provide the last four digits of your Social Security number. If you have neither, please write “None.”

• If you were previously registered in the State of Ohio and have moved from one residence to another or from one county to another, please complete Box 12.

• If you were previously registered in the State of Ohio under a different name, please complete Box 13.

• Your signature is required by state law. In the area next to the arrow in Box 14, please write your cursive, hand-written signature or make your legal mark, taking care that it does not touch the surrounding lines or type so when it is digitally imaged by your county board of elections it can effectively be used to identify your signature.

WHOEVER COMMITS ELECTION FALSIFICATION IS GUILTY OF A FIFTH DEGREE FELONY.


Form No. 12-D Prescribed by the Secretary of State (09-12)

PROVISIONAL VOTER PRECINCT VERIFICATION FORM

Complete this form 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.

STEP 1 Find the voter’s address in the Voting Location Guide.

STEP 2 Write the name or number of the voter’s correct precinct below:

STEP 3 Write the name and address of the voter’s correct polling place below, if different from where you are now:

STEP 4 Instruct the voter to go to his or her correct precinct to cast a provisional ballot.

STEP 5 Instruct the voter that casting the wrong-precinct provisional ballot in this precinct would result in all votes on the ballot being rejected.

I affirm under penalty of election falsification that I followed Steps 1 through 5 above but the voter refused to travel to the correct precinct and insists on voting a wrong-precinct provisional ballot in this precinct. I issued the provisional ballot contained in the envelope to which this verification is attached.

Signature of Precinct Election Official

Precinct Name/Number Polling Place Name

Attach this form to the voter’s provisional ballot envelope. Failure by the Precinct Election Official to properly complete or attach this form will not result in the rejection of the voter’s entire provisional ballot.

Form No. 12-D Prescribed by the Secretary of State (09-12)

PROVISIONAL VOTER PRECINCT VERIFICATION FORM

Complete this form 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.

STEP 1 Find the voter’s address in the Voting Location Guide.

STEP 2 Write the name or number of the voter’s correct precinct below:

STEP 3 Write the name and address of the voter’s correct polling place below, if different from where you are now:

STEP 4 Instruct the voter to go to his or her correct precinct to cast a provisional ballot.

STEP 5 Instruct the voter that casting the wrong-precinct provisional ballot in this precinct would result in all votes on the ballot being rejected.

I affirm under penalty of election falsification that I followed Steps 1 through 5 above but the voter refused to travel to the correct precinct and insists on voting a wrong-precinct provisional ballot in this precinct. I issued the provisional ballot contained in the envelope to which this verification is attached.

Signature of Precinct Election Official

Precinct Name/Number Polling Place Name

Attach this form to the voter’s provisional ballot envelope. Failure by the Precinct Election Official to properly complete or attach this form will not result in the rejection of the voter’s entire provisional ballot.


SOS 0557 (11/2012) printed in-house

Notice Issued Pursuant Court Order

III. GENERAL INJUNCTIVE RELIEF.

4. THE COURT ADOPTS AND ANNEXES HEREAFTER DIRECTIVE 2008-80 AS AN ORDER OF THIS COURT.

5. DEFENDANT SECRETARY OF STATE, HER AGENTS, EMPLOYEES AND REPRESENTATIVES WILL INSTRUCT OHIO’S COUNTY BOARDS OF ELECTIONS TO

ADHERE TO THE FOLLOWING RULES REGARDING THE CASTING AND COUNTING OF PROVISIONAL BALLOTS FOR PERSONS WITHOUT IDENTIFICATION

OTHER THAN A SOCIAL SECURITY NUMBER:

a. BOARDS OF ELECTIONS MUST COUNT THE PROVISIONAL BALLOT CAST BY A VOTER USING ONLY THE LAST FOUR DIGITS OF HIS OR HER SOCIAL

SECURITY NUMBER AS IDENTIFICATION IF ALL OF THE FOLLOWING CONDITIONS ARE MET:

i. THE INDIVIDUAL WHO CAST THE PROVISIONAL BALLOT IS REGISTERED TO VOTE;

ii. THE INDIVIDUAL IS ELIGIBLE TO CAST A BALLOT IN THE PRECINCT AND FOR THE ELECTION IN WHICH THE INDIVIDUAL CAST THE

PROVISIONAL BALLOT;

iii. THE PROVISIONAL BALLOT AFFIRMATION INCLUDES A STATEMENT THAT THE INDIVIDUAL IS REGISTERED TO VOTE IN THE PRECINCT IN

WHICH THE PROVISIONAL BALLOT WAS CAST AND A STATEMENT THAT THE INDIVIDUAL IS ELIGIBLE TO VOTE IN THE ELECTION IN WHICH

THE PROVISIONAL BALLOT WAS CAST;

iv. THE INDIVIDUAL’S NAME AND SIGNATURE APPEAR IN THE CORRECT PLACE ON THE PROVISIONAL BALLOT AFFIRMATION FORM, UNLESS THE

VOTER DECLINED TO EXECUTE THE AFFIRMATION AND THE POLL WORKERS COMPLIED WITH THEIR STATUTORY DUTIES UNDER R.C.

3505.182 AND R.C. 3505.181(B)(6) WHEN A VOTER DECLINES TO EXECUTE THE AFFIRMATION;

v. THE SIGNATURE OF THE VOTER SUBSTANTIALLY CONFORMS TO THE SIGNATURE CONTAINED IN THE BOARD OF ELECTION’S RECORDS FOR

THAT VOTER;

vi. THE PROVISIONAL BALLOT AFFIRMATION INCLUDES THE LAST FOUR DIGITS OF THAT VOTER’S SOCIAL SECURITY NUMBER, WHICH IS NOT

FOUND TO BE INVALID;

vii. THE INDIVIDUAL’S RIGHT TO VOTE WAS NOT SUCCESSFULLY CHALLENGED;

viii. THE INDIVIDUAL DID NOT ALREADY CAST A BALLOT FOR THE ELECTION IN WHICH THE INDIVIDUAL CAST THE PROVISIONAL BALLOT; AND

ix. PURSUANT TO R.C. 3505.183(B)(2), THE BOARD OF ELECTIONS DETERMINES THAT, IN ADDITION TO THE INFORMATION INCLUDED ON THE

AFFIRMATION, THERE IS NO ADDITIONAL INFORMATION FOR DETERMINING BALLOT VALIDITY PROVIDED BY THE PROVISIONAL VOTER OR

TO THE BOARD OF ELECTIONS DURING THE TEN DAYS AFTER THE DAY OF THE ELECTION THAT CASTS DOUBT ON THE VALIDITY OF THE

BALLOT OR THE INDIVIDUAL’S ELIGIBILITY TO VOTE.

b. BOARDS OF ELECTIONS MAY NOT REJECT A PROVISIONAL BALLOT CAST BY A VOTER, WHO USES ONLY THE LAST FOUR DIGITS OF HIS OR HER

SOCIAL SECURITY NUMBER AS IDENTIFICATION, FOR ANY OF THE FOLLOWING REASONS:

i. THE VOTER PROVIDED THE LAST FOUR DIGITS OF A SOCIAL SECURITY NUMBER BUT DID NOT PROVIDE A CURRENT DRIVER’S LICENSE, STATE

ISSUED IDENTIFICATION, OR OTHER DOCUMENT WHICH SERVES AS IDENTIFICATION UNDER OHIO LAW;

ii. THE VOTER DID NOT PROVIDE A DATE OF BIRTH;

iii. THE VOTER DID NOT PROVIDE AN ADDRESS THAT IS TIED TO A HOUSE, APARTMENT OR OTHER DWELLING PROVIDED THAT THE VOTER

INDICATED THAT HE OR SHE RESIDES AT A NON-BUILDING LOCATION, INCLUDING BUT NOT LIMITED TO A STREET CORNER, ALLEY OR

HIGHWAY OVERPASS LOCATED IN THE PRECINCT IN WHICH THE VOTER SEEKS TO CAST A BALLOT AND THAT THE NON-BUILDING LOCATION

QUALIFIES AS THE INDIVIDUAL’S VOTING RESIDENCE UNDER R.C. 3503.02;

iv. THE VOTER INDICATED THAT HE OR SHE IS HOMELESS;

v. IN LIGHT OF THE INJUNCTION ISSUED IN SEIU LOCAL 1 V. HUSTED, SECTION III (5) (b) (v) OF THE APRIL 19, 2010 CONSENT DECREE HAS BEEN

REMOVED FOR THE PURPOSES OF THE NOVEMBER 6, 2012 ELECTION. COUNTY BOARDS OF ELECTION ARE ORDERED TO COMPLY WITH THE

DIRECTIVES THAT GOVERN THE COUNTING OF PROVISIONAL BALLOTS CAST IN THE CORRECT POLLING LOCATION, BUT IN THE WRONG

PRECINCT;

vi. THE COURT HAS REMOVED THIS PROVISION OF THE CONSENT DECREE. SEE NEOCH V. HUSTED FIRST ORDER ISSUED OCTOBER 26, 2012; OR

vii. THE POLL WORKER DID NOT COMPLETE OR PROPERLY COMPLETE AND/OR SIGN THE PROVISIONAL BALLOT APPLICATION WITNESS LINE

AND/OR THE PROVISIONAL BALLOT AFFIRMATION FORM, EXCEPT FOR REASONS PERMITTED BY THE GOVERNING STATUTES.

c. BOARDS OF ELECTIONS MUST OBSERVE THE FOLLOWING RULES REGARDING THE DELEGATION OF PROCESSING PROVISIONAL BALLOTS, AND

DETERMINING THEIR VALIDITY, TO BOARD STAFF:

i. ULTIMATELY, THE MEMBERS OF BOARDS OF ELECTIONS MUST DETERMINE THE VALIDITY OF ALL VOTES CAST IN AN ELECTION AND MUST

CERTIFY THE RESULTS OF ALL ELECTIONS. HOWEVER, NOTHING IN OHIO LAW REQUIRES THAT THE MEMBERS OF A BOARD OF ELECTIONS

MUST PERSONALLY COMPLETE ALL TASKS ASSOCIATED WITH PREPARING FOR THAT CERTIFICATION.

ii. THUS, BOARDS OF ELECTIONS MAY, UNDER A POLICY ADOPTED BY THE BOARD, DELEGATE THE PROCESSING AND SOME ASPECTS OF

COUNTING PROVISIONAL BALLOTS TO BOARD STAFF. SUCH PROCESSING MUST BE DONE IN BIPARTISAN TEAMS.

iii. IF A BOARD OF ELECTIONS DELEGATES THE PROCESSING OF PROVISIONAL BALLOTS, IT MUST FIRST ADOPT A POLICY SETTING FORTH

PROCEDURES FOR THE PROCESSING OF PROVISIONAL BALLOTS. UNDER THAT POLICY, BOARD STAFF RESPONSIBLE FOR PROCESSING

PROVISIONAL BALLOTS MUST MAKE A RECOMMENDATION TO THE BOARD AS TO THE ELIGIBILITY OF EACH PROVISIONAL BALLOT CAST IN

THE COUNTY, EITHER ON AN INDIVIDUAL BASIS, OR AS TO GROUPS OR CATEGORIES OF SIMILARLY SITUATED PROVISIONAL BALLOTS.

iv. ULTIMATELY, THE MEMBERS OF BOARD OF ELECTIONS MUST DETERMINE THE ELIGIBILITY OR INELIGIBILITY OF ALL PROVISIONAL BALLOTS

CAST WITHIN THE COUNTY IN ACCORDANCE WITH OHIO LAW. BOARDS MAY NOT DELEGATE THIS TASK.

v. EACH BOARD OF ELECTIONS MUST THEN CAUSE THE BALLOTS TO BE COUNTED BY BOARD STAFF, AND MUST INCLUDE THE TABULATION OF

THAT COUNT IN ITS OFFICIAL CANVASS OF THE ELECTION RESULTS AND, TO THE EXTENT REQUIRED, ITS CERTIFICATION OF THE ELECTION

RESULTS TO THE SECRETARY OF STATE.


EXHIBIT B


Jon HustedOhio Secretary of State

180 East Broad Street, 16th Floor

Columbus, Ohio 43215

Tel: (877) 767-6446 Fax: (614) 644-0649

www. OhioSecretaryofState.gov

DIRECTIVE 2012-01

January 4,2012

To: COUNTY BOARDS OF ELECTIONS

MEMBERS, DIRECTORS, AND DEPUTY DIRECTORS

Re: Determining the Validity of Provisional Ballots

Summary

During the 2011 election year, a number of county boards of elections contacted this office with questions

about how to process provisional ballots. Inevitably, 2012 will bring more provisional ballots and those

ballots will be critical to determining the contest outcomes. This Directive introduces a revised simplified

provisional ballot affirmation statement for the front of the provisional ballot envelope and a typical

registration form to register or update information on the back of the provisional ballot envelope.

Additionally, the Directive is issued to provide uniformity across Ohio's 88 county boards of elections in

reviewing provisional ballot affirmations (provisional envelopes) to determine the validity of the ballots

(counted) by providing county boards of elections with a mandated 5-step procedure.

PROVISIONAL BALLOT IDENTIFICATION ENVELOPE

Attached are a simplified provisional ballot affirmation statement for the front of the provisional ballot

envelope and the registration form for the back of the provisional ballot envelope. All boards must use

this updated material for the November 6, 2012 general election. I also encourage the boards to use the

update material for the March 6, 2012 primary election. However, if boards have the current provisional

ballot material in stock, the board may vote to use the remaining inventory for the 2012 primary election.

The provisional ballot envelope is also available at:

http://www.OhioSecretarvofState.gov/sos/upload/elections/forms/12-B.pdf

General Reminders on Processing Provisional Ballots

• Boards of elections may begin examining provisional ballot envelopes the day after the election.1

• The board of elections must adopt a provisional ballot policy, under which they may designate

bipartisan teams to examine and categorize provisional ballot envelopes; however, only the

board members themselves determine the validity of each provisional ballot.

• A board of elections must not start counting ANY provisional ballot until AFTER the board

members themselves have determined the validity or invalidity of ALL provisional ballots cast in

that county.2

'R.C. 3505.183(E)(l)2 R.C. 3505.183(D)


Directive 2012-01 Determining the Validity of Provisional Ballots Page 2 of 4

• Boards must complete the examination and counting of provisional ballots no later than the

twenty-first day after the election.3

Determining the Validity of Provisional Ballots

Step 1: Determine whether the affirmation statement provided on the provisional ballot enveJope

contains both:

a) the voter's printed name on the provisional ballot envelope and;

b) either a valid signature after the affirmation or a note by the precinct election official

on the signature line - that the voter declined to execute an affirmation.

• If the affirmation statement contains both the voter's printed name and either a

valid signature or a note on the signature line that the voter declined to sign, then

proceed to Step 2;

• If the affirmation statement does not contain both the voter's printed name, a

valid signature, or declination, but the voter provided last 4 digits of the voter's

Social Security Number, then proceed to Step 2 (see NEOCH page 5);

• If the affirmation statement does not contain both the voter's printed name and

either a valid signature or declination, and the voter did not provide the last 4

digits of voter's Social Security Number as identification, then the Board must

reject the provisional ballot.4

Step 2; Determine whether the provisional voter was required to provide additional information

to the board of elections within ten days after the election.

There are only four reasons5 to require a provisional voter to provide additional information to theboard of elections during the ten days after the day of an election:

1. The voter possesses a SSN or proper identification, but was unable6 to provide it to theprecinct election official;

2. The voter possesses a SSN or proper identification, but declined7 to provide it to the precinct

election official;

3. The voter does not possess8 a SSN or proper identification, and refused to sign a SOS Form10-T;

4. The voter was challenged9 at the polling place and his or her eligibility to vote could not bedetermined by the precinct election officials;

3 R.C. 3505.32(A)

4R.C.3505.183(B)(4)(a)(iii)

5R.C.3505.181(B)(8)6R.C.3505.181(A)(3)

7R.C.3505.181(A)(13)8R.C.3505.181(A)(12)

9R.C.3505.181(A)(7)



• If the voter was not required to provide additional information then proceed to

Step 3;

• If the voter provided the necessary information within ten days of the election,

then proceed to Step 3;

• If the voter was required to provide additional information to the board of

elections but failed to do so within ten days of the election, then the Board must

reject the provisional ballot.10

Step 3: Determine whether the Board can verify the identity of the voter based on the voter's

printed name, signature, and identification information provided on the provisional ballot

envelope or by the voter within the ten day period.

• If the Board can verify the identity of the voter based upon the information

provided on the provisional ballot envelope and/or provided by the voter within

ten days of the election, then proceed to Step 4;

• If the Board cannot verify the identity of the voter based upon the information

provided on the provisional ballot envelope and/or the information provided by

the voter within ten days of the election, then the Board must reject the

provisional ballot.11

Note that verification of identity includes at least one search of the county's local

voter registration database by entering as much or as little information as is available,

and by including "wildcards" if available, and?X least one search of all counties using

the statewide voter registration database by entering as much or as little information

as is available.

Unlike a voter registration card or absentee ballot application, date of birth and

address are not required on a provisional ballot envelope. Therefore, a provisional

ballot that does not have the voter's date of birth and/or address is valid so long as

the board can verify the voter's identity and registration status in the State of Ohio.

Step 4: Determine whether the voter is a registered voter anywhere in the State of Ohio at least

30 days before the election.

• If the voter was registered to vote anywhere in the State of Ohio at least 30 days

before the election, proceed to Step 5;

• If the voter was not registered to vote anywhere in the State of Ohio at least 30

days before the election, then the Board must reject the provisional ballot.12

Step 5: Determine whether the voter is a resident of the county and precinct in which the voter

offers to vote.13

• If the voter moved and provided a new address within the precinct on the

provisional ballot envelope, then the voter is considered a resident of the new

county and precinct.

10 R.C. 3505.183(B)(4)(a)(v); R.C. 3505.183(B)(4)(a)(vii)

11 R.C. 3505.183(B)(4)(b)(i); State ex rel Skaggs v. Brunner (2008), 120 Ohio St. 3d 506.

12 Ohio Constitution Article V, Section 1; R.C. 3505.183(B)(4)(a)(i); R.C. 3505.183(B)(4)(a)(iv); R.C.

3505.183(B)(4)(a)(vi)

13 R.C. 3503.01(A)



• Ifthe voter is a resident of the county and precinct in which the provisional ballot

was cast, then the Board must accept and count the provisional ballot:

• If the voter is not a resident of the county and precinct in which the provisional

ballot was cast, and the voter provided only the last 4 digits of the voter's Social

Security Number as identification, then move to the "Applying the NEOCH

Exception" on this page;

• If the voter is not a resident of the county and precinct in which the provisional

ballot was cast and the voter did not provide the last 4 digits of the voter's Social

Security Number as identification, then the Board must reject the provisional

ballot14

APPLYING THE NEOCH EXCEPTION

Under the consent decree issued by the federal court in Northeast Ohio Coalition for the Homeless v.

Brunner, S.D. Ohio No. 2:06-cv-896, ("NEOCH"), boards of elections may not reject provisional ballots

cast by voters who use only the last four digits of their Social Security number as identification for

any of the following reasons:

1. The voter cast his or her provisional ballot in the wrong precinct, but in the correct

polling place, for reasons attributable to poll worker error;

2. The voter did not complete or properly complete and/or sign the provisional ballot

application for reasons attributable to poll worker error; or

3. The poll worker did not complete or properly complete and/or sign the provisional ballot

application witness line and/or the provisional ballot affirmation form, except for reasons

permitted by the governing statutes.

If you have any questions concerning the examination and evaluation of provisional ballots, please

contact the Secretary of State's Elections Counsel who is assigned to your county at (614) 466-2585.

Thank you for your continued hard work.

iSincerely,

Jon Husted

14 R.C. 3505.183(B)(4)(a)(ii); R.C. 3505.183(B)(4)(b)(ii); Sandusky Cty. Dem. Party v. Blackwell (2004), 387 F.3d565


STEP 1 - Clearly PRINT your full name: First Name Middle Name/Initial Last Name Suffix

STEP 2 - Provide ONE of the following forms of identification: The Secretary of State and the Board of Elections recommend that you write the last four digits of your Social Security number.

A. Write the last four digits of your Social Security number: ___ ___ ___ ___ -or-

B. Write your full eight-digit Ohio driver’s license number, which begins with two alphabet letters followed by six numbers: ___ ___ ___ ___ ___ ___ ___ ___ -or-

C. If you did not write the last four digits of your Social Security number or your full Ohio driver’s license number, you must show to your precinct election official one of the forms of identification listed below: If you do not check one of the following boxes affirming the type of ID you showed to the precinct election official or do not complete Form 10-T (only if you are eligible to do so), the board of elections will conclude that you did NOT show ID to your precinct election official and you must show ID at the board of elections during the 10 days after the election for your vote to be eligible to be counted.

your military identification card, or a current (within 12 months) utility bill, bank statement, government check, paycheck,

or other government document (except a document from your county board of elections) containing your name and current address, or

a form of photo identification (except U.S. Passport) that was issued by the United States government or the State of Ohio containing your name, current address (or former address if ID is a driver’s license or state identification card), and an expiration date that has not passed, or

complete Form 10-T only if you do not have a Social Security number AND do not have any of the forms of identification listed above.

NOTE: If you fail to provide identification at this time you must go to your county board of elections on or before the 10th day following this election to provide a qualifying form of identification in order for this ballot to count.

STEP 3 - Sign the following statement:

I solemnly swear or affirm that I am a registered voter in the precinct in which I am voting this provisional ballot and that I am eligible to vote in this election, for which I am casting this provisional ballot. I understand that if the information I provide on this provisional ballot affirmation is not fully complete and correct, and/or if the board of elections determines that I am not registered to vote, a resident of this precinct, or eligible to vote in this election, and/or if the board of elections determines that I have already voted in this election, this provisional ballot will not be counted. I further understand that knowingly providing false information is a violation of law and subjects me to possible criminal prosecution. I hereby declare, under penalty of election falsification, that the above statements are true and correct to the best of my knowledge and belief.

VOTER’S SIGNATURE

WHOEVER COMMITS ELECTION FALSIFICATION IS GUILTY OF A FIFTH DEGREE FELONY

MA

ND

ATO

RY IN

FORM

ATI

ON

REQ

UIR

ED F

OR

YOU

R BA

LLO

T TO

CO

UN

T

Failure by the precinct election official to complete this section will not affect whether or not this provisional ballot is counted.

• This ballot is cast in precinct (list name or number of voter’s precinct)

• The name or number of this location is

• Precinct election official’s printed name Date

PREC

INCT

ELE

CTIO

N

OFF

ICIA

L IN

FO

PROVISIONAL BALLOT AFFIRMATION(R.C. 3503.16, 3505.181, .182, .183)

Form No. 12-B Prescribed by Secretary of State (1-12)Case: 2:12-cv-00562-ALM-TPK Doc #: 97-3 Filed: 11/05/12 Page: 6 of 7 PAGEID #: 6333

Notification of Change of Address/ Change of Name for Provisional Ballot Voters

Failure to complete this form will not cause your provisional ballot to be rejected.

1. Are you a U.S. citizen? Yes No 2. Will you be at least 18 years of age on or before the next general election? Yes No

If you answered NO to either of the questions, do not complete this form.3. Last Name First Name Middle Name or Initial Jr., II, etc.

4. House Number and Street (Enter new address if changed) Apt. or Lot # 5. City or Post Office 6. ZIP Code

7. Additional Rural or Mailing Address (if necessary) 8. County where you live

9. Birthdate (MO-DAY-YR) (required) 10. Ohio driver’s license No. OR 11. Phone No. (voluntary) last 4 digits of Social Security No.

12. PREvIOuS ADDRESS IF uPDAtINg CuRRENt REgIStRAtION - Previous House Number and Street

Previous City or Post Office County State

13. ChANge Of NAme ONlY Former Legal Name Former Signature

I declare under penalty of election falsification I am a citizen of the United States, will have lived in this state for 30 days immediately preceding the next election, and will be at least 18 years of age at the time of the general election.

14. Your Signature

Date_______/_______/_______ MO DAY YR

FOR BOARD uSE ONLY

SEC4010 (Rev. 10/11)City, village, twp.

Ward

Precinct

School Dist.

Cong. Dist.

Senate Dist.

House Dist.

(one form of ID required to be listed or provided)

Provisional voters should complete this form in order to notify their county board of elections that they have changed their:

• residence, or• name.

If you are completing this form notifying the board of elections that you changed your residence from one Ohio county to another Ohio county then your voter registration in your previous Ohio county will be cancelled and your voter registration will be activated in your new Ohio county.

If the board of elections determines that you were not previously registered to vote in the State of Ohio, by completing this form you are registering to vote in this county in the State of Ohio.

Important Reminders• Please read instructions carefully.

• Use blue or black ink.

• When completing Boxes 1 through 13 below, print clearly so that your handwriting can be read by your board of elections.

Instructions• Boxes 1 and 2 are required by federal law.

• Boxes 3 through 9 are required by state law.

• Box 10 is required by federal law. If you have a current and valid Ohio driver’s license you must provide that number for Box 10. If you do not have an Ohio driver’s license, you must provide the last four digits of your Social Security number. If you have neither, please write “None.”

• If you were previously registered in the State of Ohio and have moved from one residence to another or from one county to another, please complete Box 12.

• If you were previously registered in the State of Ohio under a different name, please complete Box 13.

• Your signature is required by state law. In the area next to the arrow in Box 14, please write your cursive, hand-written signature or make your legal mark, taking care that it does not touch the surrounding lines or type so when it is digitally imaged by your county board of elections it can effectively be used to identify your signature.

WHOEVER COMMITS ELECTION FALSIFICATION IS GUILTY OF A FIFTH DEGREE FELONY.


EXHIBIT C


No. 12-4264 IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1, et al., Plaintiffs-Appellees, v. JON HUSTED, et al., Defendants-Appellants.

: : : : : : : : : : :

On Appeal from the United States District Court for the Southern District of Ohio, Eastern Division District Court Case No. 2:12-cv-562

APPELLANTS OHIO SECRETARY OF STATE AND STATE OF OHIO’S

EMERGENCY MOTION TO STAY INJUNCTION PENDING APPEAL

MICHAEL DEWINE Attorney General of Ohio MICHAEL J. HENDERSHOT* *Counsel of Record STEPHEN P. CARNEY FREDERICK D. NELSON 30 East Broad Street, 17th Floor Columbus, Ohio 43215 614-466-8980 michael.hendershot @ohioattorneygeneral.gov

Counsel for Appellants

Case: 12-4264 Document: 006111479569 Filed: 10/26/2012 Page: 1Case: 2:12-cv-00562-ALM-TPK Doc #: 97-4 Filed: 11/05/12 Page: 2 of 23 PAGEID #: 6336

1

INTRODUCTION Just days before the election, a district court has rewritten Ohio’s election

laws by ordering elections officials to count certain ballots miscast when a voter

shows up and votes at the wrong polling place. The order has many flaws that

would negatively affect administration of the election: (1) the timing, as the order

came just eleven days before an election, on a motion originally filed in June, (2)

the order’s second-chance nature, as the district court declined to grant this relief in

August, and changed directions this week upon a re-request that involved no new

facts or new law, and (3) the substance, which erodes the precinct-based voting

system that most States use, and labels as an unconstitutional “burden” the

reasonable request to voters to show up at the right place. Ohio urgently asks this

Court to stay this injunction—which orders the Secretary to issue a directive by

November 2—so that the State can run the election without the ongoing harm and

confusion caused by unwarranted, last-minute litigation and by the county-wide

“vote anywhere” order.

This broad injunction contrasts greatly with the narrower injunction that this

Court recently upheld in this same case. NEOCH v. Husted, No. 12-4069, 2012

U.S. App. LEXIS 21058 (6th Cir. Oct. 11, 2012) (“NEOCH”). Plaintiff-Appellee

SEIU and others (“SEIU”) initially asked the district court to order Ohio to count

all ballots cast in the wrong precinct, regardless of whether the voter was in the


2

wrong polling location or merely at the wrong precinct within the right location, as

long as the State could not document that a pollworker tried to direct the voter to

the right place. The district court declined to give “wrong place” relief, but

narrowly focused on the “right place” voters. It enjoined Ohio to count “right

place, wrong precinct” ballots, calling that narrower injunction “the appropriate

relief, and the least restrictive upon the State,” but “adequate to ensure the

protection of Plaintiffs’ constitutional rights in the upcoming election.” R. 67 at

5886. This Court agreed that “the district court’s limited relief for the narrow class

of right-place/wrong-precinct ballots caused by poll-worker error” was proper.

This court also rejected SEIU’s claim that the district court had somehow

already granted a broader injunction; the court explained that the narrower August

injunction could not fairly be read to include the very different “wrong place”

context. NEOCH at *22-25. “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.” Id. at *24. While the Court left room for SEIU or

others someday to perhaps “seek[] broader relief for poll-worker-induced wrong-

place/wrong-precinct provisional ballots,” it allowed for that to be done “upon a

showing that Ohio’s law unconstitutionally burdens those voters’ rights.” Id.


3

But this week, based not upon a new “showing,” but on nothing more than

SEIU’s request for a second bite at the apple, the district court expanded greatly

the injunction that it found “adequate” before, and ordered Ohio to count ballots

cast at the wrong polling place—unless Ohio could document that the pollworker

tried to redirect the voter and that the voter insisted on voting a provisional ballot

in the wrong place. This injunction should be stayed for several critical reasons.

First, late October is simply too late to be changing election rules, especially

when there is no excuse for the delay, and where, indeed, this very claim was

litigated and not adopted this summer. This Court should stand firm against such

eleventh-hour changes not only because this late injunction causes problems, but

also because the Court should continue to take a principled stand against the now-

all-too-common practice of such late demands. Otherwise, it invites more of the

same. Changing rules requires us to issue new directives, and to send

supplemental instructions to workers who have already finished their training.

Second, this lateness is especially inexcusable given SEIU’s initial request

for this relief, the district court’s decision not to grant it in August, and the

unexplainable delay in trying again. The district court says now that the logic of

its August decision leads inexorably to this broader October injunction. But if that

is so (and it is not), why did the court not issue the broader injunction in the first

place, thus allowing this Court to review its full scope in the first appeal?


4

Third, SEIU’s claim on the merits is not strong at all, let alone strong

enough to overcome the equities weighing against such eleventh-hour relief—and

it contrasts sharply with the narrower injunction. Here, the burden on the voter is

not even comparable: The August injunction involved voters who showed up at

the right place but were misguided by pollworkers; this October injunction

involves those who show up at the wrong place, even all the way across the county.

Here, the State’s interests are much stronger: Ohio can maintain its precinct-based

system only by keeping voters to the right places. And counting “wrong place”

votes, unless the State meets the burden of documenting who erred, does create

incentives to show up at the wrong place and take a chance of getting past a harried

pollworker. That is especially so in the day’s final hours, when it is tempting—

especially for political operatives rounding up every last voter—to go to the

nearest polling place and see what happens.

This order also threatens our sister states. True, the district court purported

to rely on an Ohio statute that has been read to create a duty on Ohio pollworkers

to get every voter to the right polling place. But surely voters talk to pollworkers

and ask “where do I go?” to pollworkers in Tennessee, Kentucky, and Michigan,

and surely at least one human pollworker will make a mistake. If any such mistake

requires a ballot to be counted, then voters in those states will be able, under the

district court’s approach, to sue and litigate the facts of who said what.


5

The order’s logic could also lead to protracted post-election litigation. First,

the order arguably leaves room for a voter to challenge the facts that a pollworker

recorded, claiming that the worker gave bad information after all. Second, once

we leap from right-place to wrong-place voting within a county, someone will

surely make the extraordinary claim for statewide voting. Avoiding either post-

election litigation crisis is a strong state interest on the merits, and on the equities.

ARGUMENT In deciding whether a preliminary injunction should be stayed, the Court

weighs the same factors used in deciding whether to grant a preliminary injunction.

Summit Cty. Democratic Cent. & Exec. Comm. v. Blackwell, 388 F.3d 547, 550

(6th Cir. 2004). Those factors examine the equities to the parties and public, as

well as the merits. As to elections, the State interest and the public interest both

weigh heavily against having “the rules changed at the last minute.” Id. at 551; see

Purcell v. Gonzalez, 549 U.S. 1, 5 (2006).

This case is a textbook violation of Purcell and Summit County’s warning

against election-eve changes. It orders the Secretary to issue a new directive by

November 2, not based on any late-breaking change in law or facts, but merely on

a reconsideration request from a June motion. Ohio asked the district court in vain

to stay its hand this late, moving orally for a Rule 62 stay pending appeal. R. 89 at

6219. This Court should now grant a stay.


6

A. The district court declined in August to grant the county-wide relief that it just granted, and November is too late to change election rules. SEIU’s reconsideration motion below was not a first-time request to build on

the existing injunction, based on new facts, new law, or even new argument.

Rather, SEIU already asked the district court in June to order Ohio to count votes

cast in the wrong precinct (unless the State could show that the miscasting was not

caused by poll-worker error), regardless of whether the voter was at the right or

wrong polling location. R. 4, SEIU Motion for Prelim. Inj. SEIU argued for both

layers of relief—that is, as to right location and wrong location—in the June and

July papers and at the July hearing. And SEIU readily agrees that it “had not

confined [its] requested relief to right-location/wrong-precinct provisional ballots.”

R. 84 at 6095. The district court declined to grant such broader relief in August,

but granted it upon SEIU’s mere request for reconsideration in late October. The

court has now ordered the Secretary to issue a new directive by November 2—the

Friday before Election Day—ordering boards to count ballots cast in the wrong

place as long as those ballots were cast in the right county.1

The U.S. Supreme Court has cautioned against such last-minute injunctions

of election laws. As the Court explained, when courts consider injunctive requests

“just weeks before an election,” they should weigh “considerations specific to 1 SEIU moved only to expand the injunction to wrong-place but right-county ballots, R. 84 at 6110 n.18, and the district court so limited the injunction from the bench, R. 89 at 6219.


7

election cases and its own institutional procedures.” Purcell, 549 U.S. at 5. “Court

orders affecting elections . . . can themselves result in voter confusion and

consequent incentive to remain away from the polls. As an election draws closer,

that risk will increase.” Id.

This Court has repeatedly vacated October or November injunctions, noting

the State’s interest in focusing on running an election rather than responding to

litigation and constantly-shifting rules. See, e.g., Northeast Ohio Coalition for the

Homeless v. Blackwell, 467 F.3d 999, 1012 (6th Cir. 2006) (noting “strong public

interest in smooth and effective administration of the voting laws that militates

against changing the rules in the middle of” an ongoing election process); Summit

Cty., 388 F.3d at 551 (noting “State’s interest in not having its voting processes

interfered with” and that it “is particularly harmful to such interests to have the

rules changed at the last minute”).

Here, the presumption against election-eve injunctions applies with

particular force, as SEIU’s claim is recycled from the summer; it is not in any way

based on a late-breaking discovery of an alleged problem. When the district court

granted a narrower injunction in August, SEIU could have moved immediately for

broader relief in the trial court, or cross-appealed to this Court, or taken whatever

necessary steps to reassert the issue. SEIU cannot explain away their delay by

insisting that they thought they had already won broader relief. As this Court


8

found, that was an implausible view. See NEOCH v. Husted at *21-24. As the

evidence mounted that they had no such broad injunction, so did any imperative to

act. This Court should not reward SEIU’s unjustified delay.

The district court’s newest order does not address why it declined in August

to issue the injunction it now orders in October. Indeed, the court now says that

“there is no logical or legal rationale to distinguish” its narrower August injunction

from the broader October one. Id. at 6230. But if that were so, the court should

have addressed the broader issue then, allowing the State to address it in the first

appeal, and allowing this Court to review it then. The court says only that, in its

view, there are still enough minutes left on the clock to retool things, and the

merits here warrant it. R. 90 at 6236. The court is wrong on those points too, and

the delay prejudices Ohio, its citizens, and this Court.

The heavy presumption against eleventh-hour changes is amplified in this

era of month-long early voting, beyond what was when Purcell and Summit County

were decided, as elections officials are already busy running the election. It was

bad enough then when election rules were changed in the weeks before an election,

when officials were preparing for the big day, going through training and receiving

absentee ballots in the mail. Now, officials are already running in-person absentee

voting operations daily. Last-minute changes cause several harms: they force

officials to answer litigation rather than focus on the election; they create


9

uncertainty as any new orders must be communicated to all workers; and workers

must be re-trained to follow the latest change in rules.

Indeed, boards of elections have already trained many of the pollworkers

across the state, so any adjustments will be limited to supplemental written

instructions—instructions that will actually contradict, not just supplement, earlier

in-person training. That is so here because the new injunction not only involves

post-election counting of provisional ballots, but it also inherently involves the

record-keeping duties that poll-workers face on Election Day. Under the original

injunction, boards were to count wrong-precinct, right-place ballots unless a

pollworker completed a form showing that she instructed a voter correctly, but the

voter insisted on voting a provisional ballot at the wrong precinct anyway.

Notably, the Directive, and the basis for the pollworkers’ training, assures them

that they do not need to complete such a form for voters in the wrong place. True,

they must instruct the voter properly about travelling to the right place, but they

need not stop to record that.

The new injunction requires Ohio to instruct pollworkers that they should

use the form for such voters, contrary to their training and the earlier Directive.

The harm there is not just the extra time for completing a form (though that adds

up), but the time and possible confusion spent as a pollworker consults a colleague

or supervisor over what the newly changed rules are.


10

The district court waved away all of these concerns about rule-changing and

retraining by saying that changing the rules now would be a “minimal burden”—

but the court was wrong. See R. 90 at 6235. The court focused on its view that the

pollworker could just use a retooled form to cover wrong-place voters as well as

right-place (but wrong-precinct) voters. But it ignored the fact that the workers

have already been told—including by a Directive filed with the district court

pursuant to its August order—that they need not even reach for that form if the

voter were in the wrong place. It was enough to send the voter to the right place.

Nor is the burden on filling out such forms minimal, as the district court

said. True, one form in the morning might not take much. But what if several

wrong-place voters, all from the same wrong area—perhaps roommates or

neighbors—show up at 7:00 pm, just before 7:30 closing? A quick pollworker

could redirect five voters to the right place, with a chance of making it on time. If

she must instead fill out forms as to each one, it will be too late—and as time ticks,

such voters are more likely to insist on taking a chance with a provisional ballot at

that wrong place, knowing that they have little chance of travelling in time.

Indeed, SEIU’s own evidence said that pollworkers sometimes offered provisional

ballots out of a misguided sense that they were helping voters. R. 90 at 6232. If

this order stands, that “mistaken” view will change into a court-ordered override

for wrong-precinct votes, as long as the pollworker omits documentation.


11

Moreover, once the wrong-precinct location is unmoored from the right-

location requirement that this Court affirmed, someone will urge a further

unwarranted leap, allowing wrong-place voting statewide, not countywide. Or,

worse yet, the suit will come after the election. All it takes is any race, anywhere

in Ohio, to be close enough for the smallest handful of votes to matter. Other post-

election litigation might challenge whether a poll worker actually told the voter the

correct polling place (despite the proscribed form), or could challenge how ballots

were remade. (Avoiding that is also a state interest on the merits, as well as an

equitable factor.)

We may not know precisely how the consequences of this injunction will

play out, but we do know that its last-minute nature alone means that the results are

unpredictable. Further last-minute changes do not help Ohio’s elections process;

they harm it. These late demands cause precisely the confusion—and unfortunate

pollworker mistakes—to which SEIU objects. SEIU offers no sound justification

for a last-minute request involving issues that have been around all year.

B. The State’s interests outweigh any burden from requiring votes to be cast in the right place. While the equities alone justify a stay, the merits do, too. The Court weighs

“the burden on voters against the state’s asserted justifications.” NEOCH at *31.

And “when a state election law provision imposes only ‘reasonable,

nondiscriminatory restrictions’ upon the … rights of voters, ‘the State’s important


12

regulatory interests are generally sufficient to justify’ the restrictions.” Burdick v.

Takushi, 504 U.S. 428, 434 (1992). Here, the State’s interests in minimizing

Election Day confusion and reducing post-election litigation outweigh the burden

in requiring voters to cast ballots at the correct place.

1. Because voters are told where to vote and have several options to double check their polling location, the requirement to vote in the right location is not a severe burden.

When applying this constitutional test, the burden is assessed not by looking

to voters whose could not vote because of a regulation, but by looking at the

burden of complying with the regulation. See, e.g., Crawford v. Marion Cty.

Election Bd., 553 U.S. 181, 197-200 (2008) (opinion of Stevens, J.); id. at 205-06

(opinion of Scalia, J.) (examining burden of securing ID); Burdick, 504 U.S. at

435-39 (assessing burden on candidate of ballot-access rule); Anderson, 460 U.S.

at 790-95 (1983) (similar). And the Anderson/Burdick test looks broadly at the

regulation, not the result for a single voter. The district court was wrong to focus

on vote “disqualification” instead of the burden of compliance with the polling-

place requirement. R. 90 at 6232. It also erred in equating the burdens on right-

place and wrong-place voters. The burden to vote in the right place is far less than

the burden of voting in the right precinct within the right polling place.

The obligation to arrive at the correct polling location, though it may

disqualify some voters, is less onerous than having to travel and pay to secure a


13

photo ID. See id. at 238 (describing requirements) (Breyer, J., dissenting). Nor is

arriving at the right polling place more onerous than the ballot-access restrictions

upheld in Burdick, even though those laws, for the affected voters, meant that

“infringement on their right to vote for the candidate of their choice[was] total.”

Id. at 447 (Kennedy, J., dissenting).

Several Ohio laws and practices show that arriving at the right polling place

is not onerous. Ohio law mandates that whenever a person registers to vote, the

Board of Elections must notify the registrant, in writing, of the precinct in which

the applicant is to vote. Ohio Rev. Code § 3503.18(C)(1). And if a board of

elections changes the voter’s precinct, it is obligated by statute to inform the voter

in writing of the change of location. Ohio Rev. Code § 3501.21.

In addition, Ohio provides other methods for voters to check places to cast

their ballots. A voter can call either the Secretary of State or the local board of

elections. The Secretary has a webpage to “Find Your Polling Location.”

http://www.sos.state.oh.us/SOS/pollinglocation.aspx?page=361. A voter can enter

her last name, street address, zip code, and county, and the website reports her

assigned polling place. Ohio Rev. Code § 3503.15(G)(1)(b). Many county boards

of elections have the same feature on their websites. See, e.g.,

http://vote.franklincountyohio.gov/voter/; http://boe.cuyahogacounty.us/en-

US/My-Polling-Location.aspx.


14

Thus, when a person registers to vote in Ohio, they are given written

instruction on where their polling location is. Ohio Rev. Code § 3503.18(C)(1). If

they move, they are able to update their voter registration information in writing or

electronically until 28 days before the election.

https://olvr.sos.state.oh.us/ovru/Modify.aspx. Once the board of elections

processes the change of address, the voter is again mailed information about where

he is to vote. Ohio Rev. Code § 3503.18(C)(1). If a board of elections moves

precincts or voting locations, the voter receives written information about that and

is told where his new polling location is. Ohio Rev. Code § 3501.21. And all

voters in the State can access the Secretary of State’s website or their individual

county boards of elections website in order to be told where to vote.

The ease of knowing where to vote is reflected in the evidence. In the

March 2012 primary elections, 0.023% of ballots were excluded because they were

cast in the wrong polling place. See www.sos.state.oh.us/sos/elections/

Research/electionResultsMain/2012Results.aspx, cited in R. 84 at 6098 n.3 (465

wrong-place ballots out of 1,970,753 ballots cast). But, as shown below, if the

October injunction stands, the number of wrong-place ballots will grow because of

the incentives to vote in the wrong place.


15

2. The State’s interests in a smooth election and in maintaining a precinct-based voting system outweigh any burden of voting in the right place.

The State’s interests in being able to assign voters to polling places and

allocate resources to ensure a smooth election are strong. And the courts recognize

that “as a practical matter, there must be a substantial regulation of elections if they

are to be fair and honest and if some sort of order, rather than chaos, is to

accompany the democratic processes. Election laws will invariably impose some

burden upon individual voters.” Burdick, 504 U.S. at 433 (internal quotation

marks and citation omitted). Thus, “it is beyond question ‘that States may, and

inevitably must, enact reasonable regulations of parties, elections, and ballots to

reduce election- and campaign-related disorder.” Clingman v. Beaver, 544 U.S.

581, 593 (2005) (quotation and citation omitted). “[O]rderly administration and

accurate recordkeeping” are among the interests served by reasonable state

regulation of elections. Crawford, 553 U.S. at 196 (opinion of Stevens, J.).

This appeal involves provisional ballots, which are required by federal law.

As part of the Help America Vote Act of 2002, 42 U.S.C. § 15301 et seq.,

Congress mandated a provisional ballot system to provide a safety net when voters

“arrive at the polling place believing that they are eligible to vote, and then [are]

turned away because the election workers cannot find their names on the list of

qualified voters.” Sandusky County Democratic Party v. Blackwell, 387 F.3d 569


16

(6th Cir. 2004). Thus, HAVA “creat[ed] a system for provisional balloting . . .

under which a ballot would be submitted on election day but counted if and only if

the person was later determined to have been entitled to vote.” Id. HAVA left

unaltered requirements imposed by most states that votes will count only if cast at

the correct polling place. Id. at 575.

Because HAVA mandates widespread availability of provisional ballots, the

requirement to count “wrong polling place” ballots except where the boards make

particular documentary showings effectively creates a “vote anywhere” injunction

in each Ohio county. But requiring voters to show up at the right place vindicates

the State’s “significant and numerous” interests in election administration achieved

through a precinct-based system. Sandusky, 387 F.3d at 569.

For example, Ohio’s precinct system “caps the number of voters attempting

to vote in the same place on Election Day.” Id. Capping the number of voters per

location serves important election-day planning purposes (and allows boards of

elections effectively to process millions of voters on Election Day), including the

proper allocation of pollworkers, equipment, and the paper ballots used by those

who cast by provisional voters. The August injunction regarding multi-precinct

polling locations did not alter that allocation. But the October injunction allowing

voters to vote anywhere in the county will be unmanageable due to lines, staffing,

and other resource issues.


17

The district court discounted this interest in capping the number of voters

per location because, in its view, the injunction would never incentivize wrong-

place voting. R. 90 at 6237. That view does not adequately account for the

incentives of political parties across the spectrum to factor this October injunction

into their Election Day strategies. Unless boards of elections make affirmative

evidentiary showings for each person who presents himself to vote at the wrong

polling location, “political parties [will] be authorized to marshal their supporters

at the last minute from shopping centers, office buildings, or factories, and urge

them to vote at whatever polling place happen[s] to be handy, all in an effort to

turn out every last vote regardless of state law and historical practice.” See

Sandusky, 387 F.3d at 568. The Constitution does not require counting wrong

place ballots and subverting the State’s recognized interest in limiting the number

of voters who will appear at each of the particular polling places on Election Day.

With a busy Election Day, it would be nearly impossible for pollworkers to

document every conversation with a voter about that voter’s proper location.

Without that evidence, the October injunction will mean that voters can vote

anywhere in the county they choose—near work, by the gym, or by the coffee

shop. That is not a result compelled by any clause of the Constitution. But it is a

result that could cause voters to exchange momentary convenience for the

opportunity to vote on “down ballot” races that will vary across the county, such as


18

local school levies. This implicates other Sandusky factors that the district court

discounted in the context of wrong-place balloting.

The wrong-location injunction logically creates incentives for at least some

voters to try to vote in the wrong place, in contrast with the lack of a similar

incentive in the right-place, wrong-precinct scenario. In the latter case, addressed

by the earlier narrow injunction, this Court concluded that voters would be unlikely

to “roll the dice in a less busy precinct on pain of having their votes disqualified.”

NEOCH at *40. But when a different location is involved, as opposed to a

different table across the room, the calculus is far different. A voter might

perceive a benefit from voting in a more convenient place, and at least see if she is

redirected.

In particular, the wrong-location context might involve an issue of an hour’s

travel time from one end of a county to another, and that presents a greater

likelihood of “rolling the dice” in several respects. Someone leaving work at 7:00

might be short on time to reach their correct polling place, and might chance

wrong-place voting. Or someone who mistakenly goes to the wrong place might

reach the front of the line at 7:00, and after receiving correct advice to travel

elsewhere, might think it’s too late to travel, and chance that the vote will be

counted (as it will be if the court-ordered form is not executed correctly). Or

someone might reach the front of the line after 7:30 pm, and is “grandfathered in”


19

at that location but would not be elsewhere. And most important, activists for

multiple campaigns, rustling up the last round of voters in the final hour, might see

great benefit in taking voters to one place, not to several correct places.

It is no answer to focus on the few voters who may initially go to the right

place, but get misdirected to the wrong place. See R. 90 at 6233 n. 3 (citing 44

voters over three elections). The October injunction extends to voters who

themselves made the initial error of going to the wrong place. The Burdick

balancing as to those voters tips in favor of the State’s right-place policy as

adjusted by the August injunction. An amicus supporting SEIU—Cuyahoga

County—relates that “many” of the voters covered by the new injunction may

“ignore” notice from boards of elections as to their proper polling place. R. 88 at

6151. The injunction only highlights that problem, and offers no way to

distinguish initial-right-place-voters from initial-wrong-place voters. And the last

days before the election are no time to force the State to devise such a mechanism.

The State’s interest in precinct-based voting not only applies on Election

Day, but also extends after Election Day. Broadening the location county-wide

will require a more complex process of sorting provisional ballots. Moreover,

once that process ends, the October injunction will require boards to remake more

ballots to ensure that voters vote only on those races for which they were eligible.

Remaking ballots for wrong-place-wrong precinct ballots would likely require


20

significant changes to the new remade ballot as the voter is less likely to be eligible

to vote on the majority of the races as compared to right-place-wrong-precinct

voters. In other words, when a voter casts a ballot across town, he is more likely to

be in several wrong districts, for Congress, state legislators, and more. The State’s

precinct-based voting interests on Election Day and after outweigh the burden on a

voter showing up at the right physical polling place.

CONCLUSION For the above reasons, the Court should stay the preliminary injunction.

Respectfully submitted, MICHAEL DEWINE Attorney General of Ohio

s/ MICHAEL J. HENDERSHOT* *Counsel of Record STEPHEN P. CARNEY FREDERICK D. NELSON 30 East Broad Street, 17th Floor Columbus, Ohio 43215 614-466-8980 michael.hendershot@ohioattorneygeneral. gov Counsel for Appellants


1


I certify that a copy of this brief has been served through the court’s

electronic filing system. Electronic service was therefore made upon all counsel of

record on the same day.

s/Michael J. Hendershot Michael J. Hendershot


1


EASTERN DIVISION


Plaintiffs,

vs.


Defendant

and

STATE OF OHIO



Plaintiffs

vs.

JON HUSTED, et al.,

::::::::::::::::::::::::::::::

Case Nos. 2:06-CV-896 & 2:12-CV-562



[PROPOSED] ORDER ON NEOCHPLAINTIFFS’ EMERGENCY MOTIONFOR CLARIFICATION AND FORMODIFICATION OF CONSENTDECREE; AND SEIU LOCAL 1PLAINTIFFS’ MOTION FORPRELIMINARY INJUNCTION

Upon careful consideration of the NEOCH Plaintiffs’ Emergency Motion for

Clarification and for Modification of the Consent Decree and SEIU Local 1 Plaintiffs’ Motion

for Preliminary Injunction with respect to the Secretary’s Directive 2012-54 and its instruction to

county boards of elections to disqualify provisional ballots with incomplete or incorrectly


2

completed voter identification information, the opposition thereto, Plaintiffs’ reply brief, and the

applicable statutory and case law, the Court hereby GRANTS both motions.

In NEOCH v. Husted, the Court GRANTS the Plaintiffs’ motion to clarify that Section

III(5)(b)(vii) of the Consent Decree prohibits the rejection of provisional ballots on the basis that

information on the Provisional Ballot Affirmation Form regarding identification proffered by a

voter is incomplete or incorrectly completed; and modifies the Consent Decree pursuant to

Federal Rule of Civil Procedure 60 and the Court’s inherent equitable authority to extend the

protections of Section III(5)(b)(vii) of the Decree to all provisional voters to prohibit the

rejection of any provisional ballot on the basis that information on the ballot form regarding the

voter’s proffered identification is incomplete or improperly completed, unless a county board of

elections first determines that the voter failed to provide poll workers with the last four digits of

his or her Social Security number or show other acceptable identification, and verifies that the

voter declined to complete a Form 10-T affirmation.

In SEIU Local 1 v. Husted, the Court GRANTS the Plaintiffs’ motion for a preliminary

injunction and hereby enjoins Defendants and their agents from implementing Directive 2012-54

to the extent it requires the disqualification of provisional ballots with incomplete or incorrectly

completed identification information on the Provisional Ballot Affirmation Form; and further

enjoins Defendants and their agents from rejecting any provisional ballot on the grounds that the

identification information provided on the Provisional Ballot Affirmation Form is incomplete or

incorrectly completed, unless a county board of elections first determines that the voter failed to

provide poll workers with the last four digits of his or her Social Security number or show other

acceptable identification, and verifies that the voter declined to complete a Form 10-T

affirmation. In granting Plaintiffs’ motion for a preliminary injunction, the Court finds that


3

Plaintiffs have established a likelihood of success on the merits of their claim that

disqualification of provisional ballots on the grounds that information about the identification

proffered by a voter that the poll worker, not the voter, is required to record on the provisional

ballot form is missing or incorrectly completed violates the Equal Protection and Due Process

Clauses of the Fourteenth Amendment. The Court also finds that the other preliminary

injunction factors weigh heavily in favor of the injunction because Plaintiffs’ members, as well

as other Ohio voters, will suffer irreparable harm as a result of the Directive 2012-54, and neither

the State nor any other party is injured by counting these otherwise valid ballots of lawfully

registered voters.

Dated: ___________________________________HON. ALGENON MARBLEYUNITED STATES DISTRICT JUDGE


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