696 F.3d 580 (6th Cir. 2012), 12-3916, Northeast Ohio Coalition for Homeless v. Husted

Docket Nº:12-3916, 12-4069.
Citation:696 F.3d 580
Opinion Judge:PER CURIAM.
Party Name:NORTHEAST OHIO COALITION FOR the HOMELESS; Service Employees International Union, Local 1199, Plaintiffs-Appellees, v. Jon HUSTED; State of Ohio, Defendants-Appellants. Ohio Democratic Party, Intervenor Plaintiff-Appellee, Service Employees International Union Local 1, et al., Plaintiffs-Appellees, v. Jon Husted, Defendant-Appellant, State of Ohio,
Attorney:Stephen P. Carney, Office of the Ohio Attorney General, Columbus, OH, for Appellants in 12-3916. Danielle Leonard, Altshuler Berzon LLP, San Francisco, CA, for Appellees in 12-3916. Aaron D. Epstein, Office of the Ohio Attorney General, Columbus, OH, for Appellant in 12-4069. Danielle Leonard, Al...
Judge Panel:Before: GIBBONS and COOK, Circuit Judges; ROSENTHAL, District Judge.[*]
Case Date:October 11, 2012
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 580

696 F.3d 580 (6th Cir. 2012)

NORTHEAST OHIO COALITION FOR the HOMELESS; Service Employees International Union, Local 1199, Plaintiffs-Appellees,

Ohio Democratic Party, Intervenor Plaintiff-Appellee,

v.

Jon HUSTED; State of Ohio, Defendants-Appellants.

Service Employees International Union Local 1, et al., Plaintiffs-Appellees,

v.

Jon Husted, Defendant-Appellant,

State of Ohio, Intervenor.

Nos. 12-3916, 12-4069.

United States Court of Appeals, Sixth Circuit.

October 11, 2012

Argued: Oct. 1, 2012.

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[Copyrighted Material Omitted]

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ARGUED:

Stephen P. Carney, Office of the Ohio Attorney General, Columbus, OH, for Appellants in 12-3916.

Danielle Leonard, Altshuler Berzon LLP, San Francisco, CA, for Appellees in 12-3916.

Aaron D. Epstein, Office of the Ohio Attorney General, Columbus, OH, for Appellant in 12-4069.

Danielle Leonard, Altshuler Berzon LLP, San Francisco, CA, for Appellees in 12-4069.

Frederick D. Nelson, Office of the Ohio Attorney General, Columbus, OH, for Intervenor in 12-4069.

ON BRIEF:

Stephen P. Carney, Peggy Corn, Aaron D. Epstein, Office of the Ohio Attorney General, Columbus, OH, for Appellants in 12-3916.

Danielle Leonard, Stephen P. Berzon, Stacey Leyton, Barbara Chisholm, Altshuler Berzon LLP, San Francisco, CA, Caroline Gentry, Daniel B. Miller, Porter,

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Wright, Morris & Arthur LLP, Dayton, OH, Subodh Chandra, The Chandra Law Firm, LLC, Cleveland, OH, Michael J. Hunter, Hunter, Carnahan, Shoub, Byard & Harshman, Columbus, OH, Donald J. McTigue, Mark A. McGinnis, McTigue Law Group, Columbus, OH, for Appellees in 12-3916.

Aaron D. Epstein, Erin Butcher-Lyden, Peter K. Glenn-Applegate, Office of the Ohio Attorney General, Columbus, OH, for Appellant in 12-4069.

Danielle Leonard, Stephen P. Berzon, Stacey Leyton, Barbara Chisholm, Altshuler Berzon LLP, San Francisco, CA, Michael J. Hunter, Cathrine J. Harshman, Hunter, Carnahan, Shoub, Byard & Harshman, Columbus, OH, for Appellees in 12-4069.

Frederick D. Nelson, Richard N. Coglianese, Michael J. Hendershot, Stephen P. Carney, Office of the Ohio Attorney General, Columbus, OH, for Intervenor in 12-4069.

Majeed G. Makhlouf, Joseph W. Boatwright, IV, Cuyahoga County Department of Law, Cleveland, OH, Bassel C. Korkor, Arnold & Porter LLP, Washington, D.C., Patrick T. Lewis, Baker & Hostetler LLP, Cleveland, OH, Elizabeth Petrela Papez, Eric M. Goldstein, Winston & Strawn LLP, Washington, DC, for Amici Curiae in 12-4069.

Before: GIBBONS and COOK, Circuit Judges; ROSENTHAL, District Judge.[*]

OPINION

PER CURIAM.

These consolidated election law appeals present constitutional challenges to Ohio's strict application of its disqualification rules for nonconforming provisional ballots to those caused by poll-worker error, as well as issues involving the validity of a federal court's consent decree that abrogates state law without finding violations of federal law. At issue are Ohio's requirements that provisional ballots be cast in the correct precinct and with a completed voter affirmation, making no exception for wrong-precinct and deficient-affirmation ballots caused by poll-worker error. See O.R.C. § 3505.183(B)(4)(a)(ii)-(iii) and (B)(4)(b)(ii). Given the time-sensitive nature of these appeals with the November election approaching, we ordered expedited briefing and conducted a telephonic argument on October 1.

Appeal 12-3916 stems from the district court's denial of the state's motion to vacate a 2010 consent decree that requires the counting of certain wrong-precinct and deficient-affirmation provisional ballots where poll-worker error caused the nonconformity. Under the consent decree, this remedy applies only to voters that use the last four digits of their social security number (" SSN-4 voters" ) for identification to cast their provisional ballots. The Ohio Secretary of State and the State (collectively " State defendants" or " State appellees" ) both appeal this judgment. Appeal 12-4069 arises from the district court's preliminary injunction that requires the counting of all wrong-precinct and deficient-affirmation provisional ballots to remedy Ohio's systemic exclusion of nonconforming ballots caused by poll-worker error. The Secretary contests only the deficient-affirmation aspect of the preliminary injunction; the State as intervenor-appellant challenges the injunction's wrong-precinct remedy. Absent the preliminary injunction or consent decree, Ohio would not count any wrong-precinct or deficient-affirmation provisional ballots, regardless of poll-worker error. See O.R.C. § 3505.183(B)(4)(a)(ii)-(iii) and (B)(4)(b)(ii).

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For the following reasons, we sustain part of the preliminary injunction in appeal 12-4069, AFFIRMING the wrong-precinct remedy and REVERSING the deficient-affirmation remedy. The district court's judgment in No. 12-3916 is AFFIRMED, and the matter is REMANDED so that the district court may expeditiously address (1) the equal protection issue created by the consent decree's provision for the counting of deficient-affirmation ballots by SSN-4 voters, and (2) a motion to modify the consent decree in light of the equal protection concerns raised by the consent decree's differential treatment of provisional ballots.

I. BACKGROUND

A. Facts Related to Appeal 12-3916: The Consent Decree

As the district court recognized, the consent decree arose from the " turbulent saga of Ohio's provisional voting regime" that began in 2006 when Ohio enacted comprehensive election reforms. (No. 2:12-CV-562, R. 67, Plenary Op. & Order at 2.) Because we previously detailed the consent decree's history in Hunter v. Hamilton County Board of Elections, 635 F.3d 219, 223-24 (6th Cir.2011), we review only the relevant parts.

In 2006, the Northeast Ohio Coalition for the Homeless and the Service Employees International Union Local 1199 (collectively " NEOCH plaintiffs" or " NEOCH appellees" ) filed suit against Ohio's Secretary of State challenging numerous aspects of Ohio's new voter-identification laws. After lengthy negotiations, the NEOCH plaintiffs settled their claims with then-Secretary of State Jennifer Brunner by entering into a consent decree. Though the consent decree stopped short of finding constitutional violations, it provided the following injunctive relief for SSN-4 voters: the State would not reject provisional ballots that, due to poll-worker error, were cast (1) in the wrong precinct but correct polling place, or (2) with nonconforming or incomplete ballot affirmations. (No. 2:06-cv-896, R. 210, Consent Decree ¶ 5(b)(v), (vi).) As explained in Hunter,

The consent decree, in effect, carved out an exception for counting provisional ballots otherwise invalid under Ohio law if the deficiency was due to poll-worker error— albeit a narrow one limited to those provisional ballots cast by a voter who uses the last four digits of his or her Social Security number as identification.

635 F.3d at 224. By its terms, the consent decree remains in effect until June 30, 2013 unless modified.

The State did not object to the consent decree's remedy until the Ohio Supreme Court issued a 2011 decision holding that Ohio's election laws offered no protections for wrong-precinct provisional ballots caused by poll-worker error. State ex rel. Painter v. Brunner, 128 Ohio St.3d 17, 941 N.E.2d 782, 794 (2011) (per curiam). After Painter, the State defendants returned to district court seeking to vacate the consent decree, citing a conflict between state law and the consent decree's remedies. Moreover, the State defendants argued that the consent decree was void ab initio because the Secretary of State lacked the unilateral authority to abrogate state law in the absence of a federal constitutional violation. (Again, the consent decree did not find constitutional violations.) In the meantime, a different group of plaintiffs, whose claims we will discuss next, challenged the consent decree's preferential treatment of SSN-4 voters in separate litigation. Responding to this emerging issue, the NEOCH plaintiffs also moved to modify the consent decree, seeking to expand its remedy to all provisional voters (not just SSN-4 voters) in order to prevent its disparate

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vote-counting standards from causing constitutional violations.

By opinion and order of July 9, 2012, the district court denied the State defendants' motion both on issue preclusion grounds and on the merits. Specifically, the district court rejected the State defendants' argument that the consent decree irreconcilably conflicted with state law, as pronounced in Painter and State ex rel. Skaggs v. Brunner, 120 Ohio St.3d 506, 900 N.E.2d 982 (2008). Citing Northridge Church v. Charter Twp. of Plymouth, 647 F.3d 606, 614 (6th Cir.2011), the district court also held that Federal Rule of Civil Procedure 60(b) governed the State defendants' motion to vacate the consent decree. Because State defendants failed to show that the consent decree was no longer necessary to prevent constitutional violations, the district court held that they had not shown grounds for relief under Rule 60(b)(4) and (b)(5). The district court withheld judgment on the NEOCH plaintiffs' motion to expand the consent decree at this time.

The State defendants timely appealed. The Ohio Democratic Party, which intervened as a co-plaintiff at the district court, joins the NEOCH plaintiffs as appellees.

B. Facts Related to Appeal 12-4069: The Preliminary Injunction

On June 22, 2012, several unions and a community organizing group (collectively the " SEIU plaintiffs" or " SEIU appellees" ) 1 filed suit against Ohio's current Secretary of...

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