Ohio Organizing Collaborative v. Husted, Case No. 2:15-cv-1802

Citation189 F.Supp.3d 708
Decision Date24 May 2016
Docket NumberCase No. 2:15-cv-1802
Parties The Ohio Organizing Collaborative, et al., Plaintiffs, v. Jon Husted, et al., Defendants.
CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio

Bruce V. Spiva, Ceridwen B. Cherry, Elisabeth Carmel Frost, Koushik Pal, Marc E. Elias, Rhett P. Martin, Perkins Coie LLP, Washington, DC, Amanda R. Callais, Perkins Coie LLP, Pro Hac, Vice, Charles Grant Curtis, Jr., Perkin, Joshua L. Kaul, Perkins Coie LLP, Madison, WI, Donald Joseph McTigue, John Corey Colombo, McTigue & McGinnis LLC, Columbus, OH, for Plaintiffs.

Steven T. Voigt, Bridget C. Coontz, Brodi J. Conover, Ryan L. Richardson, Sarah Elaine Pierce, Tiffany L. Carwile, Zachery Paul Keller, Ohio Attorney General's Office, Columbus, OH, for Defendants.


On May 8, 2015, The Ohio Organizing Collaborative ("OOC"), Jordan Isern, Carol Biehle, and Bruce Butcher filed suit against Ohio Secretary of State Jon Husted ("the Secretary") and Ohio Attorney General Mike DeWine in their official capacities, challenging various Ohio election laws, directives, and policies. Compl., ECF No. 1. Thereafter, Plaintiffs amended their complaint to substitute OOC with the Ohio Democratic Party ("ODP"), the Democratic Party of Cuyahoga County ("DPCC"), and the Montgomery County Democratic Party ("MCDP"). Am. Compl., ECF No. 41.

The case proceeded directly to trial on an expedited schedule, including expedited discovery, and the Court held a ten-day bench trial. As explained in greater detail herein, the Court finds that Senate Bill 238's ("S.B. 238") amendments to Ohio Revised Code § 3509.01 reducing the early in-person ("EIP") voting period violate the Fourteenth Amendment to the United States Constitution and Section 2 of the Voting Rights Act of 1965 ("VRA") and enjoins Defendants from enforcing or giving any effect to that provision. The Court finds in favor of Defendants on the remainder of Plaintiffs' claims.

I. Introduction

Plaintiffs challenge the following election laws, directives, and policies:

S.B. 238's reduction of the number of days in the EIP voting period and elimination of same-day registration

Ohio Revised Code § 3501.10(C)'s limitation of one EIP voting location per county

Senate Bill 200's ("S.B. 200") change to the law regarding the minimum number of direct recording electronic voting machines ("DRE machines") that counties are required to maintain if they use DREs as their primary voting device and Directive 2014-26's policy regarding the minimum number of DRE machines counties are required to deploy on Election Day

Senate Bill 205's ("S.B. 205") restrictions on unsolicited absentee ballot mailings (including the prohibition on boards of elections ("BOE") conducting such mailings, the prohibition on including prepaid postage in those mailings, and the limitations on the Secretary's mailings) and the Secretary's policy of excluding certain voters from unsolicited absentee ballot application mailings as outlined in Directive 2014-15

S.B. 205's and Senate Bill 216's ("S.B. 216") addition of categories of information required to be provided on absentee ballot envelopes and provisional ballot affirmation forms

S.B. 216's reduction in the cure period for provisional ballots cast due to a lack of identification and its prohibition on elections officials completing on a voter's behalf a provisional ballot affirmation form

S.B. 216's failure to require BOEs to consolidate multi-precinct poll books

Plaintiffs claim that these laws, directives, and policies, hereinafter referred to as "the challenged provisions," disproportionately burden the right to vote of African Americans, Hispanics, and young people and are therefore unconstitutional and violate the VRA. They further allege that the Ohio General Assembly passed the challenged provisions at least in part with the intent to discriminate against those groups of voters, that S.B. 205 and S.B. 216 violate the Civil Rights Act of 1964 ("CRA"), that portions of S.B. 216 violate procedural due process and equal protection, and that all of the challenged provisions unconstitutionally "fence out" Democratic voters. They seek declaratory and injunctive relief, as well as orders mandating Defendants take certain actions.1

As a preliminary matter, while Plaintiffs' claims are based on the alleged effects of the challenged provisions on African Americans, Hispanics, and young people, the evidence adduced relates almost entirely to African Americans. Plaintiffs point to some evidence of the impact of S.B. 238 on young people, but they did not develop an argument based on that evidence. Rather, Plaintiffs focused their arguments on the impact of the challenged provisions on African Americans. The Court therefore finds that Plaintiffs' claims fail with respect to Hispanics and young people and addresses their claims with respect to African Americans only.2

The Court also notes that the State of Ohio does not collect, and therefore does not have, information on the racial identity of its voters.3 As explained in greater detail below, the inability to confirm voter race is a key deficiency in the experts' analyses of the impact of the challenged provisions on different racial groups. Although the experts employed various methods to address this issue, the Court is nevertheless forced to evaluate the challenged provisions' burdens on the fundamental right to vote based in part on somewhat speculative expert evidence.

With this in mind, the Court, pursuant to Federal Rule of Civil Procedure 52, makes the following findings of fact and conclusions of law. The Court will begin by briefly describing the parties. It will then identify the witnesses who testified at trial and address the weight afforded to the opinions of the expert witnesses. Next, the Court will briefly describe the relevant history of Ohio's election administration and the voting opportunities currently available to Ohio voters. After addressing some preliminary legal issues, the Court will finally address the merits of Plaintiffs' various claims, addressing each legal theory and challenged provision in turn.

II. Parties
A. Plaintiffs

The Plaintiffs in this case are ODP, DPCC, MCDP (collectively "Democratic Party Plaintiffs"), Jordan Isern, Carol Biehle, and Bruce Butcher ("Reverend Butcher").

The Democratic Party Plaintiffs claim African Americans as one of their key constituencies. Tr. Trans. 31-32, ECF No. 97 (Martin); Tr. Trans. 87, ECF No. 101 (Owens); Id. at 113-14 (Beswick). They engage in get-out-the-vote ("GOTV") efforts, primarily with their constituencies. Tr. Trans. 19-20, 32-34, ECF No. 97 (Martin); Tr. Trans. 90-91, 94-95, ECF No. 101 (Owens); Id. at 117-18, 127-28 (Beswick).

Reverend Butcher is a pastor in Summit County, Ohio, who has been and will continue to be involved in GOTV efforts. Tr. Trans. 102-17, ECF No. 96 (Butcher). Carol Biehle is a voter who votes in a multi-precinct voting location. Id. at 172 (Biehle). Jordan Isern did not testify at trial, nor did Plaintiffs adduce any evidence concerning his role as a plaintiff in this lawsuit.

B. Defendants

The Defendants in this case are Jon Husted and Mike DeWine, both sued in their official capacities. Jon Husted is the Secretary of State of Ohio and, as such, is Ohio's chief election officer. Ohio Rev. Code § 3501.04. Mike DeWine is the Attorney General of Ohio and, as such, represents the State in all legal matters.

III. Plaintiffs' Witnesses
A. Expert Witnesses
1. Dr. Jeffrey Timberlake

Dr. Jeffrey Timberlake is a tenured Associate Professor of Sociology at the University of Cincinnati whose research focuses on, inter alia , racial and ethnic inequalities. PX 109 at 5 (Timberlake Rep.). At trial, the Court admitted Dr. Timberlake as an expert in sociology. Tr. Trans. 197, ECF No. 97. He submitted an initial report evaluating the Senate Factors relevant to establishing a violation of Section 2 of the VRA and analyzing the likely impacts of the challenged provisions on the enfranchisement of minority voters. PX 109 at 1-2 (Timberlake Rep.). Using public data sources and various statistical methods, Dr. Timberlake concluded that African Americans in Ohio are subject to various types of discrimination and inequalities that negatively affect their ability to participate in the political process and that the challenged provisions will disproportionately and negatively impact minorities. PX 109 at 61-62 (Timberlake Rep.). He also submitted a rebuttal report evaluating the expert testimony of Defendants' experts Dr. Trey Hood and Sean Trende. PX 110 (Timberlake Reb.).

Much of Dr. Timberlake's reports examine the impact of the challenged provisions on African American versus white voters. In doing so, Dr. Timberlake employed two different methods to address the lack of information regarding the racial identity of Ohio's voters. See Tr. Trans. 106, ECF No. 97 (Timberlake).

In his initial report, Dr. Timberlake employed a "binning" method to compare, inter alia , the usage rates of various voting methods among minority and non-minority voters. PX 109 at 51-60 (Timberlake Rep.). He classified Ohio's counties by minority and poverty level, placing each of the eighty-eight counties into one of three county types: high minority, low minority/high poverty, and low minority/low poverty. Id. at 7.4 Using these groupings, Dr. Timberlake presented data comparing voting behaviors among the county types. Id. at 51-56.5

This binning analysis is subject to the ecological inference problem, or making false inferences about individuals using aggregate-level data. DX 18 at 10 (Hood Reb.); DX 20 at 15 (McCarty Reb.); PX 110 at 2 (Timberlake Reb.). The problem is best illustrated with respect to Dr. Timberlake's evaluation of Golden Week usage:

Although [high minority counties] have a high percentage of minorities relative to other counties in Ohio, non-Hispanic whites still comprise

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