Mays v. Larose

• Decision Date: 03 March 2020
• Docket Number: No. 19-4112,19-4112
• Citation: 951 F.3d 775
• Parties: Tommy Ray MAYS, II and Quinton Nelson Sr., individually and on behalf of all others similarly situated, Plaintiffs-Appellees, v. Frank LAROSE, in his official capacity as Secretary of State of Ohio, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

951 F.3d 775

Tommy Ray MAYS, II and Quinton Nelson Sr., individually and on behalf of all others similarly situated, Plaintiffs-Appellees,

v.Frank LAROSE, in his official capacity as Secretary of State of Ohio, Defendant-Appellant.

No. 19-4112

United States Court of Appeals, Sixth Circuit.

Argued: February 13, 2020

Decided and Filed: March 3, 2020

ARGUED: Zachery P. Keller, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Mark P. Gaber, CAMPAIGN LEGAL CENTER, Washington, D.C., for Appellees. ON BRIEFS: Zachery P. Keller, Benjamin M. Flowers, Michael J. Hendershot, Ann Yackshaw, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Mark P. Gaber, Danielle M. Lang, Jonathan M. Diaz, Dana Paikowsky, CAMPAIGN LEGAL CENTER, Washington, D.C., Naila S. Awan, Kathryn C. Sadasivan, DEMOS, New York, New York, Chiraag Bains, DEMOS, Washington, D.C., Jonathan Manes RODERICK AND SOLANGE MACARTHUR JUSTICE CENTER, Chicago, Illinois, for Appellees.

Before: MERRITT, THAPAR, and NALBANDIAN, Circuit Judges.

NALBANDIAN, Circuit Judge.

There is no dispute that Ohio is generous when it comes to absentee voting—especially when compared to other states. Any registered voter may cast their vote by absentee ballot, for any reason or no reason at all, starting about a month before election day. But there are limits. The State requires almost all registered voters to request an absentee ballot by noon, three days before Election Day. The lone exception is for unexpectedly hospitalized electors. Those electors may request an absentee ballot until 3 p.m. on Election Day.

Here, police arrested Plaintiffs Tommy Ray Mays, II and Quinton Nelson Sr. the weekend before Election Day 2018. Foreseeing their confinement lasting through the upcoming election, and with no other way to vote, they sued Ohio's Secretary of State for access to absentee ballots. They brought this suit on behalf of themselves and a class of similar individuals. The suit alleges an Equal Protection claim, challenging the State's disparate treatment of hospital-confined and jail-confined electors, and a First Amendment claim, challenging Ohio's absentee ballot request deadline, both as applied to unexpectedly jail-confined electors. The trial court granted both plaintiffs a temporary restraining order that permitted them to vote in November 2018. But the court declined to extend that relief to the class.

Following the November 2018 election, Plaintiffs requested class certification and both sides moved for summary judgment. The district court certified the class and granted summary judgment for Plaintiffs and those similarly situated, holding that the burden Ohio's disparate treatment of hospital-confined and jail-confined electors places on Plaintiffs' right to vote is not justified by a strong enough State interest. We disagree and now REVERSE the district court's grant of summary judgment to Plaintiffs, REVERSE the district court's denial of summary judgment to LaRose, and REVERSE the district court's certification of a class.

I. Background

Police arrested Nelson around 10 p.m. on Friday, November 2, 2018. The next day, Saturday, November 3, 2018, police arrested Mays shortly after 7 p.m. Neither Mays nor Nelson had taken advantage of Ohio's early in-person or absentee voting opportunities and both Plaintiffs declared that they intended to vote in-person on Election Day. But neither Plaintiff could post bail. And after their arraignments both Plaintiffs realized they would remain in jail through Election Day—meaning they would be unable to vote in-person on Election Day. Mays asked jail officials if the State would allow him to vote but he never received an answer. Nelson never asked anyone at the jail if he could vote but he testified that even after the booking process was complete, he had no access to mail supplies, outside visitors, or any other way to contact the Board of Elections.

Under Ohio law, registered voters ("electors") have three options for casting their vote. Any elector, including non-felon jail-confined electors, may vote absentee, so long as they deliver their request for an absentee ballot to the Board of Elections by noon, three days before Election Day.¹ Ohio Rev. Code Ann. §§ 3509.02, 3509.03. There is a single exception to this otherwise generally applicable deadline: electors who themselves, or whose minor children, are hospitalized because of an unforeseeable accident or medical emergency that occurs after the deadline has passed may request an absentee ballot until 3 p.m. on Election Day. Ohio Rev. Code Ann. § 3509.08(B) ; (R. 55-34, Ohio Election Office Manual at PageID # 3016.) And electors may vote in person, either at their designated polling place on Election Day or during the early voting period at each county's designated early voting center.² Ohio Rev. Code Ann. §§ 3501.32, 3509.051.

By Election Day morning, Plaintiffs realized they had no remaining option to vote. So they sued Ohio's Secretary of State ("the Secretary") on behalf of themselves and similarly situated jail-confined electors.³ They alleged that Ohio's refusal to allow jail-confined electors to request an absentee ballot on the same terms as hospital-confined electors violates the Equal Protection Clause of the federal Constitution's Fourteenth Amendment. They further alleged that Ohio's generally applicable deadline for requesting absentee ballots violates the First Amendment's guarantee of the right to vote, as applied to jail-confined electors with no other way to vote. Last, Plaintiffs sought to certify a class under Federal Rule of Civil Procedure 23, seeking relief for all jail-confined electors who the State arrested after close of business on the Friday before the election, who had not voted early, and who would remain in jail through Election Day.

The district court granted a temporary restraining order against the Secretary, requiring him to provide absentee ballots to Mays and Nelson on Election Day. Following discovery, both parties moved for summary judgment. The district court certified the Plaintiffs' proposed class, granted the Plaintiffs' motion for summary judgment on their Equal Protection claim, and denied the Secretary's motion for summary judgment. The Secretary appeals.

II. Standing

"Every federal appellate court has a special obligation to assure itself ... of its own jurisdiction[.]" Alston v. Advanced Brands & Importing Co. , 494 F.3d 562, 564 (6th Cir. 2007) (citation omitted). So we directed the parties to address Plaintiffs' standing in supplemental briefing. They agree that Plaintiffs have standing to bring their claims. And for the most part they are correct.

Article III imposes three standing requirements for plaintiffs in federal court: an injury-in-fact, causation, and redressability. Lujan v. Defs. of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The only one that raises concerns here is causation. That requirement is met when there is a causal connection between a plaintiff's injury and the conduct complained of, that is, the injury must be "fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court." Id . (cleaned up). Because a combination of Ohio's deadline for requesting an absentee ballot and the State's confinement of Plaintiffs caused their inability to vote, Plaintiffs have standing to bring their claims.

The Secretary concedes police arrested Mays after the deadline to request an absentee ballot had passed, that he asked jail officials if he could vote from jail, and that he could not post bail and remained in jail through Election Day. (Appellant's Suppl. Br. at 1–2.) Whether Mays actually requested an absentee ballot once jailed is immaterial because any such request would have been futile. Ohio law sets a deadline of noon, three days before Election Day for any elector to request an absentee ballot. Ohio Rev. Code Ann. §§ 3509.02, 3509.03. While the State allows unexpectedly hospital-confined electors an extended deadline, that exception does not apply to unexpectedly jail-confined electors. Ohio Rev. Code Ann. § 3509.08(B) ; (R. 55-34, Ohio Election Office Manual at PageID # 3016.) So by the time police arrested Mays, he had no way to request an absentee ballot under Ohio law. And because the State confined Mays through Election Day, he could not vote in-person, either early or on Election Day.

When doing so would be futile, Article III does not require plaintiffs to take actions simply to establish standing. Virginia v. Am. Booksellers Ass'n, Inc. , 484 U.S. 383, 392–93, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988) ; Clements v. Fashing , 457 U.S. 957, 962, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982) ; Int'l Bhd. of Teamsters v. United States , 431 U.S. 324, 365–66, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). Whether Mays asked to vote absentee from jail is irrelevant because at the time police arrested Mays, Ohio law dictated that there was no way for him to request an absentee ballot. So it was the State's absentee ballot request deadline and confinement of Mays that caused his inability to vote.

The Plaintiffs are not similarly situated, however, with regard to the Equal Protection issue. Ohio law treats hospital-confined and jail-confined electors differently: the State gives unexpectedly hospital-confined electors an extended deadline to request an absentee ballot but does not do the same for unexpectedly jail-confined electors. Ohio Rev. Code Ann. § 3509.08(B) ; (R. 55-34, Ohio Election Office Manual at PageID # 3016.) Any elector jailed during this same window must comply with the normal deadline. Mays falls within the class of electors affected by this policy. Police arrested him around seven hours after the deadline passed. Had a hospital admitted him at the same time, the State would have allowed him to request an absentee ballot. But he was in jail, so he could not. Thus, Mays's inability to vote...