Northeast Ohio Coalition for Homeless v. Blackwell

• Decision Date: 31 October 2006
• Docket Number: No. 06-4421.,No. 06-4412.,06-4412.,06-4421.
• Parties: NORTHEAST OHIO COALITION FOR the HOMELESS AND SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1199, Plaintiffs-Appellees, v. J. Kenneth BLACKWELL, Defendant-Appellant (06-4412), State of Ohio, Intervenor-Appellant (06-4421).
• Court: U.S. Court of Appeals — Sixth Circuit

467 F.3d 999

NORTHEAST OHIO COALITION FOR the HOMELESS AND SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1199, Plaintiffs-Appellees, v. J. Kenneth BLACKWELL, Defendant-Appellant (06-4412),

State of Ohio, Intervenor-Appellant (06-4421).

No. 06-4412.

No. 06-4421.

United States Court of Appeals, Sixth Circuit.

Decided and Filed: October 31, 2006.

H. Ritchey Hollenbaugh, Carlile, Patchen & Murphy, Columbus, OH, Caroline Gentry, Porter, Wright, Morris & Arthur, Dayton, OH, Subodh Chandra, Cleveland, OH, for Plaintiffs-Appellees.

Richard N. Coglianese, Ohio Attorney General's Office, Constitutional Offices Section, Columbus, OH, for Defendant-Appellant.

Before GIBBONS and McKEAGUE, Circuit Judges; TARNOW, District Judge.^*

McKEAGUE, J. (p. 1012), delivered a separate concurring opinion. TARNOW, D.J. (p. 1013), delivered a separate opinion concurring in part and dissenting in part.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Defendant-appellant J. Kenneth Blackwell, in his official capacity as the Secretary of State of the State of Ohio (the "Secretary"), moves this court to stay or vacate a temporary restraining order ("TRO") and associated orders to the Secretary and County Boards of Elections that restrain enforcement of certain absentee voter identification provisions under Ohio Rev.Code Ann. §§ 3509.03(E)(1)-(3), 3509.04, 3509.05(A). The orders were entered by the district court on October 26, 2006. Plaintiffs-appellees Northeast Ohio Coalition for the Homeless and Service Employees International Union, Local 1199 (the "Organizations") move to dismiss this appeal for lack of subject matter jurisdiction. The State of Ohio moves to intervene to represent the interests of the people of Ohio and the General Assembly in defending the constitutionality of the statute. For the following reasons, we deny the motion to dismiss for lack of jurisdiction, grant the motion to intervene, and grant in part the motion to stay or vacate the district court's orders.

I.

On January 31, 2006, the Ohio General Assembly passed House Bill 3, Ohio's comprehensive election reform bill ("Voter ID law"), and the Governor signed the bill the same day. The bill amended the Ohio Election Code to require that voters provide any of several specific types of identification in order to cast a regular ballot in state and federal elections held in Ohio. Some Voter ID law provisions went into effect on May 2, 2006, and the remaining provisions went into effect on June 1, 2006. Portions of the challenged statutes relating to applications for absentee ballots were enacted as part of HB 234, which was effective on January 27, 2005.

The provisions of the Voter ID law that require voters to provide any of several specific types of identification when casting their ballots are mandatory for all persons who cast their votes by regular ballot on election day. Ohio Rev.Code Ann. § 3505.18(A)(1). These new voter-identification laws are not mandatory for voters who cast their votes by absentee ballot, whether by mail or in-person at their Boards of Elections, before or on election day. Ohio Rev.Code Ann. §§ 3509.03, 3509.04, 3509.05. However, like the sections governing election-day voting, the Voter ID law also includes other provisions relating to absentee voter identification requirements, and it is these provisions to which the TRO relates.

Three sections of the Voter ID law relate to absentee ballots. Section 3509.03(E) requires that an application for an absentee ballot contain:

(E) One of the following:

(1) The elector's driver's license number;

(2) The last four digits of the elector's social security number;

(3) A copy of the elector's current and valid photo identification, a copy of a military identification that shows the elector's name and current address, or a copy of a current utility bill, bank statement, government check, paycheck, or other government document, other than a notice of an election mailed by a board of elections under section 3501.19 of the Revised Code or a notice of voter registration mailed by a board of elections under section 3503.19 of the Revised Code, that shows the name and address of the elector.

Ohio Rev.Code Ann. § 3509.03(E). Section 3509.04(B) requires that with each absentee ballot the Board of Elections include an identification envelope requiring a voter to provide one of the following:

My driver's license number is ... (Driver's license number)

The last four digits of my Social Security Number are ... (Last four digits of Social Security Number)

.... In lieu of providing a driver's license number or the last four digits of my Social Security Number, I am enclosing a copy of one of the following in the return envelope in which this identification envelope will be mailed: a current and valid photo identification, a military identification that shows my name and current address, or a current utility bill, bank statement, government check, paycheck, or other government document, other than a notice of an election mailed by a board of elections under section 3501.19 of the Revised Code or a notice of voter registration mailed by a board of elections, that shows my name and address.

Ohio Rev.Code Ann. § 3509.04(B). Section 3509.05(A) provides that when returning the absentee ballot:

If the elector does not provide the elector's driver's license number or the last four digits of the elector's social security number on the statement of voter on the identification envelope, the elector also shall include in the return envelope with the identification envelope a copy of the elector's current valid photo identification, a copy of a military identification that shows the elector's name and current address, or a copy of a current utility bill, bank statement, government check, paycheck, or other government documents, other than a notice of an election mailed by a board of elections under section 3501.19 of the Revised Code or a notice of voter registration mailed by board of elections under section 3503.19 of the Revised Code, that shows the name and address of the elector.

Ohio Rev.Code Ann. § 3509.05(A). Absentee voting pursuant to these laws for the November 2006 election began in early October 2006.

On October 26, 2006, the Secretary issued Directive 2006-78 in an effort to "ensure that the November 7 elections are conducted uniformly throughout the State." In the Directive the Secretary defines the term "current" as used in the Voter ID law as "dated not more than six months from the date that it is presented to the election official." The Directive defines "government document" to include "any local, state or federal government document that shows the voter's name and current address." Finally, the Directive includes a section intended to clarify what was meant by "driver's license number." This section acknowledges that a driver's license has two numbers in close proximity to one another, but noted that "[u]pon receipt of an absentee ballot, which purports to contain the driver's license number but contains the number above the photograph or some other number which is not the driver license [sic] number, acceptable proof of identity has not been provided."

II.

On October 24, 2006, the Organizations filed suit in the district court claiming in relevant part that: (1) the voter identification laws for absentee ballots are confusing, vague, impossible to apply, and in fact are being applied differently by Ohio's Boards of Elections, causing the November 2006 election to be conducted in a manner that is fundamentally unfair in violation of the Due Process Clause of the Fourteenth Amendment (Count One); (2) the voter identification laws for absentee ballots cannot and will not be applied uniformly by Boards of Elections, violating the Equal Protection Clause of the Fourteenth Amendment (Count Two); and (3) the requirement of proof of current address for submission of absentee ballots, when other voters are not required to provide a current address, violates the Fourteenth Amendment and 42 U.S.C. § 1971(a)(2)(A)-(B) (Counts Eight, Nine, and Ten).¹ Counts Three through Seven and Eleven through Thirteen assert claims not relevant to the TRO request.

After a hearing on October 26, 2006, the district court issued a TRO restraining the enforcement of the absentee voting identification requirements in Ohio Rev.Code Ann. §§ 3509.03(E)(1)-(3), 3509.04, 3905.05(A) (quoted above). Specifically, the district court concluded the phrases "current," "other government document," "military identification," and "driver's license number" were unconstitutionally vague and were being unequally applied by the Boards of Elections. Although the effect of the clarifying Directive issued by the Secretary was discussed at the hearing, it is not addressed in the TRO. In addition to enjoining enforcement of these provisions, the district court ordered the Secretary to issue a directive to the Boards of Elections requiring that they not enforce the enjoined provisions, preserve all absentee ballots in their present form, and inform absentee voters that compliance with the enjoined provisions was not required. By its terms, the TRO remains in effect until the district court disposes of the Organizations' motion for a preliminary injunction, for which an evidentiary hearing is scheduled on November 1, 2006.

As the Secretary did not wish to file an appeal of the TRO, the Attorney General of Ohio on behalf of the State of Ohio (the "State") filed a motion to intervene in the case. The district court held a hearing on October 27, 2006, and denied the motion to intervene as of right, concluding that although the State had the requisite interest in the outcome of the case, that interest was adequately represented by the Secretary, who was also represented in the case by the Attorney General's office. The district court also denied permissive intervention, concluding that because the State's interests were adequately represented...