Hunter v. Hamilton County Bd. Of Elections
| Decision Date | 22 November 2010 |
| Docket Number | Case No. 1:10CV820 |
| Parties | TRACIE HUNTER, Plaintiff, v. HAMILTON COUNTY BOARD OF ELECTIONS, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
ORDER GRANTING IN PART
PLAINTIFFS' MOTION FOR A
This matter comes before the Court on Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction. (Doc. 2.) Plaintiffs filed a verified complaint (doc. 1) and the motion for a temporary restraining order on Sunday, November 21, 2010. The Court held a hearing on the motion the following day. For the reasons set forth below, the Court GRANTS IN PART AND DENIES IN PART Plaintiffs' motion for a temporary restraining order. The Court denies Plaintiffs motion insofar as it seeks an order from this Court prohibiting Defendants from certifying the election results for Hamilton County Juvenile Court Judge on Tuesday, November 23, 2010. The Court grants Plaintiff's motion insofar as it seeks an order commanding Defendants to investigate whether provisional ballots cast in the correct polling location but wrong precinct were improperly cast because of poll worker error.
Plaintiff Tracie Hunter is only twenty-three votes behind her opponent in the race for Hamilton County Juvenile Court Judge. This narrow gap makes Plaintiff eligible for an automatic recount; however, the recount will not include hundreds of provisional ballots that were rejected, perhaps improperly, by the Hamilton County Board of Elections (the "Board"). Plaintiff asserts that the Board's failure to count the provisional votes of citizens who voted at the correct polling location but at the wrong precinct violates the Equal Protection and Due Process Clauses of the United States Constitution. This Court held a hearing on Plaintiff's motion for a temporary restraining order on November 22, 2010. Although the motion before the court is styled a motion for a temporary restraining order and preliminary injunction, the motion is not ex parte, as the Board and intervening Plaintiffs received notice of the motion and hearing. As such, this Court will treat the motion as one for a preliminary injunction.
Ohio Revised Code ("O.R.C.") § 3505.181(C) provides that a provisional ballot cast in the wrong precinct is not to be opened or counted. Even so, Ohio Secretary of State Directive 2010-74 ("Directive 2010-74") provides that 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" where 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." Directive 2010-74 then provides specific examples of poll worker error:
Another example of poll worker error is where the provisional ballot affirmation envelope (SOS Form 12-B) contains notations indicating that a poll worker directed the voter to the wrong precinct at a polling location containing multiple precincts. Because it is a poll worker's duty to ensure that the voter is directed to the correct precinct, these notations provide objective evidence that the poll worker did not properly or to the fullest extent required carry out his or her Election Day duties. Similarly, if a board of elections finds multiple provisional ballots voted in the correct polling location but wrong precinct, it should, either in writing, with written responses from the poll workers, or at a public meeting of the board, question the poll workers in thatpolling location to determine whether they followed the board's instructions for ensuring that voters were directed to the correct precinct.
At meetings held on November 16, 2010 and November 19, 2010, the Board reviewed and processed approximately 11, 000 provisional ballots that were cast in Hamilton County in the November 2, 2010 general election. The Board approved approximately 8260 provisional ballots without significant discussion. The remaining provisional ballots were discussed and voted on by the Board to determine if they should be counted. The Board found multiple instances of poll worker error in its review of the provisional ballots. For example, the Board discovered that approximately twenty-six provisional ballots had been cast in the wrong precinct, even though the ballots had been cast at the Board of Elections downtown. Because the only explanation for such a result was poll worker error, the Board voted that these twenty-six ballots be counted.
Ultimately, the Board rejected and refused to count 849 provisional ballots because the ballots were cast in the wrong precinct. Timothy Burke, a member of the Hamilton County Board of Elections, testified that of the 849 provisional ballots in which the voter voted in the wrong precinct, at least one of those ballots included a voter who used the last four digits of his or her Social Security number as identification. Further, Mr. Burke testified that the 849 rejected provisional ballots also include multiple instances where voters cast provisional ballots in the wrong precinct at a polling location containing multiple precincts. In fact, in at least three polling locations, multiple provisional ballots were cast in the correct polling location but the wrong precinct. Even so, the Board did not contact the poll workers as directed by Directive 2010-74. Plaintiff argues that the Board did not conduct any meaningful investigation into whether poll worker error attributed to situations where voters cast provisional ballots in the correct polling location but at the wrong precinct, and that this failure violates the Equal Protection and Due Process Clauses of the United States Constitution.
Federal Rule of Civil Procedure 65 authorizes the Court to grant preliminary injunctive relief. A district court is to consider the following four factors when deciding to issue a preliminary injunction: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would otherwise suffer irreparable injury; (3) whether issuance of preliminary injunctive relief would cause substantial harm to others; and (4) whether the public interest would be served by issuance of preliminary injunctive relief. See Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000); see also Mason County Med. Ass'n v. Knebel, 563 F.2d 256, 261 (6th Cir. 1977). In re Eagle-Pitcher Industries, Inc., 963 F.2d 855, 859 (6th Cir. 1992) (citations omitted).
As a preliminary matter, the Court will resolve Defendants' argument that this federal Court lacks jurisdiction over the controversy. Defendants cite to Sandusky County Democratic Party v. Blackwell, 387 F.3d 565 (6th Cir. 2004) for the proposition that the state, and only the state, has the right to determine whether provisional ballots cast in the wrong precinct are to be counted as valid ballots.
The Sixth Circuit in Sandusky addressed the issue of whether the federal Help America Vote Act ("HAVA") required states to count votes cast by provisional ballot even if cast in a precinct in which the voter did not reside. That court held that HAVA should not be interpreted as "imposing upon the States a federal requirement that out-of-precinct ballots be counted, thereby overturning the longstanding precinct-counting system in place in more than half the States." Plaintiff here is not seeking an order from this Court that all of the out-of precinct ballots be counted. Rather, she is asking that the Hamilton County Board of Elections treat provisional voters on an equal basis. Thus, while the Sandusky Court noted that the "ultimate legality of the vote cast provisionally is a matter of state law," id. at 576, the holding is inapposite to the issues presented herein. This Court has jurisdiction over the claims presented in this case. The Court will now address whether a preliminary injunction is proper.
The right to vote includes the right to have one's vote counted on equal terms with others. Bush v. Gore, 531 U.S. 98, 104 (2000) (per curiam). Plaintiff here has demonstrated that the Hamilton County Board of Elections does not treat all provisional ballots cast in the wrong precinct equally. For example, Board Operations Administrator Ms. Poland testified that 849 provisional ballots were cast at polling places but voted in the wrong precinct. Board staff observed the envelopes of all these ballots to see if there were any markings made by poll workers indicating poll worker error. Thereafter, the staff applied differing levels of scrutiny to provisional ballots. For provisional ballots in which the voters had used the last four numbers of their Social Security number as their form of...
To continue reading
Request your trial