Ne. Ohio Coal. for the Homeless v. Husted, Nos. 16-3603/3691

• Court: U.S. Court of Appeals — Sixth Circuit
• Writing for the Court: BOGGS, Circuit Judge.
• Citation: 837 F.3d 612
• Docket Number: Nos. 16-3603/3691
• Decision Date: 13 September 2016
• Parties: Northeast Ohio Coalition for the Homeless ; Columbus Coalition for the Homeless; Ohio Democratic Party, Plaintiffs–Appellees/Cross–Appellants, v. Jon Husted, in his official capacity as Secretary of the State of Ohio, Defendant–Appellant/Cross–Appellee, State of Ohio, Intervenor–Appellant/Cross–Appellee.

837 F.3d 612

Northeast Ohio Coalition for the Homeless ; Columbus Coalition for the Homeless; Ohio Democratic Party, Plaintiffs–Appellees/Cross–Appellants,
v.
Jon Husted, in his official capacity as Secretary of the State of Ohio, Defendant–Appellant/Cross–Appellee,

State of Ohio, Intervenor–Appellant/Cross–Appellee.

Nos. 16-3603/3691

United States Court of Appeals, Sixth Circuit.

Argued: August 4, 2016
Decided and Filed: September 13, 2016
Rehearing En Banc Denied October 6, 2016.^*

ARGUED: Stephen P. Carney, Office of the Ohio Attorney General, Columbus, Ohio, for Appellants/Cross–Appellees. Subodh Chandra, The Chandra Law Firm, LLC, Cleveland, Ohio, for Appellees/Cross–Appellants. ON BRIEF: Stephen P. Carney, Eric E. Murphy, Michael J. Hendershot, Ryan L. Richardson, Zachery P. Keller, Office of the Ohio Attorney General, Columbus, Ohio, for Appellants/Cross–Appellees. Subodh Chandra, Sandhya Gupta, The Chandra Law Firm, LLC, Cleveland, Ohio, Caroline H. Gentry, Ana P. Crawford, Porter, Wright, Morris & Arthus LLP, Dayton, Ohio, Donald J. McTigue, Jr. Corey Colombo, McTigue Mcginnis & Colombo, Columbus, Ohio, Donald J. McTigue, Jr. Corey Colombo, Derek S. Clinger, McTigue & Colombo LLC, Columbus, Ohio, for Appellees/Cross–Appellants. Chad A. Readler, Jones Day, Columbus, Ohio, Michael A. Carvin, Anthony J. Dick, Stephen A. Vaden, Jones Day, Washington, D.C., for Amicus Curiae.

Before: KEITH, BOGGS, and ROGERS, Circuit Judges.

BOGGS, J., delivered the opinion of the court in which ROGERS, J., joined. KEITH, J. (pp. 638–68), delivered a separate dissenting opinion.

OPINION

BOGGS, Circuit Judge.

In 2014, Ohio enacted Senate Bills 205 and 216. Among other changes to Ohio election law, they (1) required county boards of elections to reject the ballots of absentee voters and provisional voters whose identification envelopes or affirmation forms, respectively, contain an address or birthdate that does not perfectly match voting records; (2) reduced the number of post-election days for absentee voters to cure identification-envelope errors, and provisional voters to present valid identification, from ten to seven; and (3) limited the ways in which poll workers can assist in-person voters. The district court held that all three provisions impose an undue burden on the right to vote and disparately impact minority voters.

We affirm the plaintiffs' undue-burden claim only as it relates to the requirement imposed by Senate Bill 205 that in-person and mail-in absentee voters complete the address and birthdate fields on the identification envelope with technical precision. We reverse the district court's finding that the other provisions create an undue burden. We also reverse the district court's finding that the provisions disparately impact minority voters. We affirm the district court's other holdings.

I. Background

Ohioans need not queue on Election Day to exercise the right to vote. The State accepts absentee ballots by mail and, on designated early-voting days, in person. Ohio Rev. Code §§ 3509.01(B), 3509.05(A). A voter who declares that he or she is registered but whose name does not appear on a precinct's list of eligible voters can cast an in-person provisional ballot on either an early-voting day or Election Day. Id. § 3505.181(A)(1), (B)(2).

837 F.3d 619

In 2014, the Ohio General Assembly enacted Senate Bills 205 (SB 205) and 216 (SB 216), amending state election provisions that govern absentee and provisional voting. The laws have been in effect since early June 2014.

A. SB 205

Any eligible voter can apply for an absentee ballot. Ohio Rev. Code § 3509.03. Completing the application involves providing a name, signature, registration address, date of birth, and a form of identification. Id. § 3509.03(A) –(E). Acceptable identification includes: a driver's license number; the last four digits of a Social Security number; or a copy of a valid photo ID, valid military ID, current utility bill, bank statement, government check, paycheck, or other government document (excluding a registration notice) showing the voter's name and address. Id. § 3509.03(E). The same are acceptable forms of identification when casting an absentee ballot. Id. § 3509.05(A). Applicants can request and receive an absentee ballot through the mail by providing a mailing address. Id. § 3509.03(I).

When voting, mail-in and some in-person absentee voters must complete an "identification envelope" along with their ballots.¹ The identification envelope contains fields for the voter's name, signature, voting residence, and birthdate. The county boards of elections may preprint the voter's name and address on the identification envelopes of mail-in voters. Id. § 3509.04(B). The Secretary of State's 2015 election manual "instruct[s]" the boards to do so in order to "eliminate any chance that a voter's absentee ballot may be rejected for the sole reason" that the voter failed to complete those fields. Before SB 205 went into effect, absentee ballots could be rejected if the identification envelope "accompanying an absent voter's ballot or absent voter's presidential ballot [was] insufficient," if the signatures "d[id] not correspond with the person's registration signature," or if the voter failed to provide identification. Ohio Rev. Code § 3509.07 (2013). In 2010, the Secretary circulated a directive to the county boards of elections stating that the identification envelope must include a proper voter name and signature for the corresponding ballot to be counted.

SB 205 added two fields to that list. It specifies that an identification envelope is "incomplete" without accurately filled birthdate² and address fields. Ohio Rev. Code § 3509.06(D)(3). An "incomplete" identification envelope results in the ballot's rejection unless the voter "provide[s] the necessary information to the board of elections in writing and on a form prescribed by the secretary of state." Id. § 3509.06(D)(3)(b).

SB 205 made two other changes to Ohio election law that are at issue. When an absentee ballot contains an error, the board of elections gives the voter notice of the additional information required for the ballot to be counted. SB 205 reduced the window for voters to submit corrections from the ten days after Election Day to the seven days after Election Day. See ibid. In addition, SB 205 prevents election officials from providing "assistance" to voters

837 F.3d 620

with the exceptions of voters who "[d]eclare[ ]" that they are "unable to mark" their ballot due to "blindness, disability, or illiteracy." Id. § 3505.24.

B. SB 216

Provisional voters must complete a "provisional ballot affirmation" form. Ohio Rev. Code § 3505.182. Before the implementation of SB 216, a provisional ballot was counted if the voter presented valid identification³ and the affirmation form included the voter's name, signature, and a statement of eligibility. Ohio Rev. Code § 3505.183(B)(1) (2013). The back of the form contained a separate registration application. Provisional voters whose ballots were rejected for failure to register but who completed the application became registered for the next election.

SB 216 added birthdate⁴ and address to the list of affirmation-form fields that provisional voters must accurately complete. Ohio Rev. Code § 3505.183(B)(1)(a). The affirmation form now doubles as a registration application, applicable to provisional voters whose ballots are rejected for failure to register. Id. § 3505.182(F). The bill also added the word "printed" before "name" in the list of affirmation-form requirements. Compare id. § 3505.183(B)(1)(a), with Ohio Rev. Code § 3505.183(B)(1)(a) (2013). This appears to have clarified, rather than modified, existing law. Between the 2008, 2010, and 2012 general elections, most counties rejected provisional ballots for failure to include a "printed" name. Furthermore, a 2012 directive from the Secretary instructed elections boards to reject provisional ballots whose affirmation statements lacked "the voter's printed name."

A provisional voter without valid identification may return to the board of elections to cure an otherwise complete ballot by providing a driver's license number, state identification card number, the last four digits of the individual's Social Security number, a photo or military ID, or a copy of a current utility bill, bank statement, government check, paycheck, or other government document (excluding a registration notice) showing the voter's name and address. Ohio Rev. Code § 3505.181(B)(7)(a). SB 216 reduced the period for doing so from the ten days after Election Day to the seven days after Election Day. Compare Ohio Rev. Code § 3505.181(B)(8) (2013), with Ohio Rev. Code § 3505.181(B)(7).

C. Procedural History

In 2006, the Northeast Ohio Coalition for the Homeless (NEOCH) and the Service Employees International Union sued the Secretary to enjoin the enforcement of voter-identification and provisional-ballot laws.⁵ Although perhaps rich source material for a prickly civil-procedure hypothetical, the case's many twists and turns are unnecessary to chronicle here. Suffice it to say, litigation was still proceeding in 2010 when the parties entered a...