League of Women Voters of Ohio v. Brunner

• Decision Date: 26 November 2008
• Docket Number: No. 06-3483.,No. 06-3621.,No. 06-3335.,06-3335.,06-3483.,06-3621.
• Citation: 548 F.3d 463
• Parties: LEAGUE OF WOMEN VOTERS OF OHIO, et al., Plaintiffs-Appellees, Jeanne White, Intervenor-Appellee, v. Jennifer BRUNNER, in her official capacity as Secretary of State of Ohio, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

548 F.3d 463

LEAGUE OF WOMEN VOTERS OF OHIO, et al., Plaintiffs-Appellees Jeanne White, Intervenor-Appellee, v. Jennifer BRUNNER, in her official capacity as Secretary of State of Ohio, et al., Defendants-Appellants.

No. 06-3335.

No. 06-3483.

No. 06-3621.

United States Court of Appeals, Sixth Circuit.

Argued: October 21, 2008.

Decided and Filed: November 26, 2008.

ARGUED:

Richard N. Coglianese, Office of the Ohio Attorney General, Columbus, Ohio, for Appellants. Jennifer Rebecca Scullion, Proskauer Rose, New York, New York, for Appellees.

ON BRIEF:

Richard N. Coglianese, Damian W. Sikora, Office of the Ohio Attorney General, Columbus, Ohio, for Appellants. Jennifer Rebecca Scullion, Proskauer Rose, New York, New York, Jon M. Greenbaum, Lawyers' Committee for Civil Rights Under Law, Washington, D.C., Steven P. Collier, Jason A. Hill, Connelly, Jackson & Collier, Toledo, Ohio, John A. Freedman, Michael R. Geske, Arnold & Porter, Washington, D.C., Kathleen McCree Lewis, Dykema Gossett, Detroit, Michigan, Brenda Wright, Demos: A Network for Ideas and Action, Brighton, Massachusetts, Richard Marvin Kerger, Kimberly A. Conklin, Kerger & Hartman, Toledo, Ohio, for Appellees.

Before: KEITH, MERRITT, and GIBBONS, Circuit Judges.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Plaintiffs-appellees League of Women Voters of Ohio, League of Women Voters Toledo-Lucas County, and individual registered voters in Ohio allege that Ohio's voting system is so deficient as to deny or severely burden their fundamental right to vote. They brought suit in the United States District Court for the Northern District of Ohio against defendants-appellants the Secretary of State of Ohio and the Governor of Ohio,¹ alleging violations of equal protection, substantive due process, procedural due process, and the Help America Vote Act of 2002 ("HAVA"). Intervenor-appellee Jeanne White alleges that touchscreen voting machines utilized in Ohio violate her constitutional rights to equal protection and substantive due process. The district court dismissed the HAVA claim but allowed the parties to proceed on their constitutional claims. We agree that the plaintiffs and intervenor have pled sufficient facts to survive a motion to dismiss with respect to their equal protection and substantive due process claims, but we find that the plaintiffs have not alleged facts that would establish a violation of procedural due process, if proven. Therefore, we affirm in part and reverse in part.

I.

This case arises out of the November 2004 elections in Ohio. On July 28, 2005, plaintiffs-appellees League of Women Voters of Ohio, League of Women Voters Toledo-Lucas County, and individual Ohio voters² (collectively, "League") filed a sixty-six page, 212-paragraph complaint alleging "a voting system in Ohio" that suffers from "non-uniform standards, processes, and rules, and that employs untrained or improperly trained personnel, and that has wholly inadequate systems, procedures, and funding." The League alleges that these deficiencies deny Ohioans the fundamental right to vote and violate the Equal Protection and Due Process Clauses. Further, the League alleges that the problems with Ohio's voting system date back at least to 1971 and are "pervasive, severe, chronic, and persistent." Accordingly, the League seeks declaratory and injunctive relief to require defendants-appellants the Secretary of State of Ohio and the Governor of Ohio "to put in place a competent and fair voting system."

The plaintiffs in this case include two organizational plaintiffs and numerous individual Ohio voters. The League of Women Voters of Ohio ("LWVO") is a nonpartisan organization with more than 3,000 members statewide. LWVO alleges that the Secretary's and Governor's actions and inactions caused it injury by impeding its voter registration and education efforts and by injuring the rights of its individual members, who are alleged to have standing in their individual capacities. The League of Women Voters of Toledo-Lucas County is a nonpartisan organization affiliated with the LWVO that alleges standing on essentially the same grounds as the LWVO. The individual plaintiffs are registered voters in Ohio who allege they were denied the right to vote or severely burdened in exercising the right to vote during the November 2004 election.

The individual plaintiffs allege that they were disenfranchised or severely burdened in exercising the right to vote in that the following occurred on November 2, 2004:

Mildred Casas went to her polling location at Ohio State University, but poll workers told her she was at the wrong location for her address and sent her to the King Avenue Methodist Church. At the church, poll workers again told Casas she was at the wrong location and sent her to the Newman Center. At the third location, poll workers informed Casas she was not on the list. Finally, they provided a provisional ballot to Casas. These events took more than six hours.

Sadie Rubin went to her polling place on the Kenyon College campus. That location had two voting machines for approximately 1,300 voters; one of the machines broke during the day. Rubin waited in line for more than nine hours in order to vote. Voting was completed there at approximately 4:00 a.m. the following day.

Deborah Thomas went to the polling place where she has voted for almost twenty years and was told she was not on the voter list. Poll workers gave Thomas a provisional ballot. The ballot was not counted and the county board of elections has no record of Thomas's attempts to vote.

Anthony White went to his polling place, where poll workers informed him he was not on any of the voter lists at that location. Poll workers then gave White a provisional ballot. The ballot was not counted and the county board of elections has no record of White's attempts to vote.

Leonard R. Jackson went to his polling place and was told he was not on the voter list. Poll workers gave Jackson a provisional ballot, which was not counted. The county board of elections has no record of Jackson's attempts to vote.

Lena Boswell went to her polling place and was told she was not on the voter list; therefore, she cast a provisional ballot. Boswell contacted the board of elections and learned that either she had been expunged from the rolls or her information had been removed when the board of elections changed computer systems. Boswell's provisional ballot had not been counted as of November 22, 2004.

Darla Stenson went to her polling place but was told she was not on the voter list. The polling place included multiple precincts, but poll workers did not check to see if Stenson's name appeared on another precinct list. Poll workers then gave Stenson a provisional ballot, which was not counted because it was cast in the wrong precinct.

Chardell Russell went to her polling location and was given a paper ballot. Poll workers sent Russell to a table with screens to fill out her ballot. The screens did not provide adequate privacy. Poll workers then told Russell that the voting machine was not working and her ballot would be counted later; they did not tell her how to confirm that her vote was later counted.

Lula Johnson-Ham went to her polling place and learned the voting machine was not working. Poll workers instructed Johnson-Ham to place her ballot on the side of the machine so that it could be counted later. They did not tell her how to confirm that her vote was later counted.

Dorothy Cooley went to her polling place with her eight-year-old son. Both wore Bush/Cheney 2004 tee shirts. A poll worker told Cooley she could not vote unless she took off or covered her shirt. Cooley questioned the worker about the legal basis for this action. The worker then directed Cooley to the police, causing Cooley to fear she would be arrested in front of her son. Cooley then took off her outer tee shirt in order to vote.

Charlene Dyson was concerned about gaining access to her polling place because she uses a wheelchair. Dyson called her county board of elections and was informed that a poll worker would bring a ballot to her car. When she arrived at the polling place, poll workers refused to bring a ballot to Dyson's car and stated that they were not aware of any obligation to do so. Dyson left without voting.

Deborah Barberio was eligible to vote in the election, and her name appeared on the relevant voter roll. Barberio's husband received a voter information card at the home they shared, but Barberio did not. Barberio then confirmed with the county board of elections that she was registered. On election day, poll workers informed Barberio that she was not on the registration list and suggested she complete a provisional ballot. The board of elections later maintained that Barberio was not registered and did not count her ballot.

The individual plaintiffs voted or attempted to vote in Lucas, Franklin, Cuyahoga, Knox, and Medina Counties. The League alleges that these incidents of disenfranchisement or severe burdening of the right to vote were more likely to occur in those counties than elsewhere in Ohio. The League further alleges that each of the individual plaintiffs has a reasonable basis to believe that she will be disenfranchised, or severely burdened in exercising her right to vote, in future elections.

The League maintains that the above were not isolated incidents. Rather, the League alleges that systemic failures occurred in November 2004 with respect to:

(1) registration: Registered voters did not appear on voting rolls in their precincts and were denied the right to vote by provisional ballot, or their provisional ballots were not counted. The Secretary issued a directive instructing local officials "not to accept voter registration forms unless printed on paper of a specified color, weight, and type," impeding new voter registration;

(2) absentee ballots: Voters who requested absentee ballots did not receive them or...