Fair Elections Ohio v. Husted

• Citation: 770 F.3d 456
• Decision Date: 24 October 2014
• Docket Number: No. 14–4007.,14–4007.
• Parties: FAIR ELECTIONS OHIO; Cure–Ohio; The Amos Project, Plaintiffs–Appellees, v. Jon HUSTED, in his official capacity as Secretary State of Ohio; Mike Dewine, in his official capacity as Attorney General of Ohio, Defendants–Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

770 F.3d 456

FAIR ELECTIONS OHIO; Cure–Ohio; The Amos Project, Plaintiffs–Appellees,
v.
Jon HUSTED, in his official capacity as Secretary State of Ohio; Mike Dewine, in his official capacity as Attorney General of Ohio, Defendants–Appellants.

No. 14–4007.

United States Court of Appeals, Sixth Circuit.

Oct. 24, 2014

Vacated and remanded.

Cole, Chief Judge, filed a dissenting opinion.

[770 F.3d 457]

ON BRIEF:

Ryan L. Richardson, Zachery P. Keller, Sarah E. Pierce, Office of the Ohio Attorney General, Columbus, Ohio, for Appellants. Patrick M. Quinn,

[770 F.3d 458]

Brunner Quinn, Columbus, Ohio, David A. Singleton, Ngozi V. Ndulue, Pamela H. Thurston, Ohio Justice & Policy Center, Cincinnati, Ohio, for Appellees.

Before: COLE, Chief Judge, ROGERS and COOK, Circuit Judges. ROGERS, J., delivered the opinion of the court, in which COOK, J., joined. COLE, C.J., (pp. 461–64), delivered a separate dissenting opinion. OPINION
ROGERS, Circuit Judge.

This case concerns whether an organization conducting voter outreach has standing to challenge the deadline for requesting an absentee ballot, on the theory that this deadline—6:00 P.M. on the Friday before Election Day—prevents people jailed after the deadline and held through Election Day from exercising their right to vote. In order to sue in federal court, an organizational plaintiff must show a concrete and particularized injury in fact to itself or its members. Plaintiffs have not done so here. Further, limits on third-party standing prevent the organizational plaintiffs in this case from asserting the rights of third-parties.

Under Ohio law, jail confinement does not negate voter eligibility. Persons who are in jail on pending charges have the right to register and vote. Ohio Rev.Code § 3509.08(A). Only convicted felons in state custody lose the right to vote, and only during the pendency of their incarceration. Ohio Rev.Code § 2961.01(A).

Ohio law provides two basic methods by which a registered voter can cast a ballot: by voting in person at an assigned location on Election Day, or by using one of the “absent voter's ballot procedures” found in Ohio Rev.Code § 3509.01 et seq. Ohio law and practice provide for five methods of absentee voting. First, one can vote remotely by mail. Second, one can vote early, in person, at the board of elections or other designated location. The final three ways apply to those in special circumstances, that is, overseas uniformed military, those subject to “disability or confinement,” or those in “unforeseen hospitalization.”

For conventional absentee voting, a request must be received by hand delivery before 6:00 P.M. on the Friday before Election Day, or by mail before noon on the Saturday before Election Day at the relevant board of elections. Ohio Rev.Code § 3509.03. Those in special circumstances, including those confined under a sentence for a misdemeanor or awaiting trial on a felony or misdemeanor, can submit ballot applications up to 90 days before an election. Ohio Rev.Code § 3509.08(A). After receiving and verifying confined voter ballot applications, boards of elections send two-person teams to obtain the ballots from those confined at nursing homes, private homes, hospitals, and jails. While such teams visit nursing homes as long as a month before the election, boards of elections can and do wait until Election Day to send a team to the county's jail or jails, to avoid obtaining absentee ballots from persons who would have been released before Election Day.

The practical outcome of the current procedure is that persons jailed after 6:00 P.M. on the Friday before Election Day who are not released in time to vote in person on Election Day and who have not already voted using one of the other absent voter ballot procedures are unable to vote.

Separate from the ordinary absentee ballot procedures, those who cannot visit the polls in person because the voter or the voter's minor child is “confined in a hospital as a result of an accident or unforeseeable

[770 F.3d 459]

medical emergency” can qualify for a special voting procedure if an absentee ballot application is delivered to the relevant board of elections by 3:00 P.M. on Election Day. Ohio Rev.Code § 3509.08(B)(1). A late hospital voter can request that the absentee ballot be entrusted to a family member for delivery. Otherwise, the board must send a two-person team of board employees representing the two major political parties. Ohio Rev.Code § 3509.08(B). No corresponding provision exists for persons confined in jail on Election Day because of an arrest or misdemeanor conviction occurring after 6:00 P.M. the preceding Friday.

Plaintiffs initiated this suit on October 15, 2012 by filing a complaint and a motion for a temporary restraining order. Plaintiffs alleged that treating late jailed electors differently from late-hospitalized electors violates the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment, § 2 of the Voting Rights Act, and the Seventeenth Amendment. They requested declaratory and injunctive relief. After an oral hearing on the motion, the district court determined that at least one of the plaintiffs—The AMOS Project—had standing to sue because it would be “required to divert its resources to retraining its volunteers and informing its members and constituents of the risks attendant with getting arrested during the weekend prior to the election.”...