Ohio State Conference of the Nat'l Ass'n v. Husted

• Decision Date: 24 September 2014
• Docket Number: No. 14–3877.,14–3877.
• Parties: OHIO STATE CONFERENCE OF the NATIONAL ASSOCIATION for the Advancement of Colored People et al., Plaintiffs–Appellees, v. Jon HUSTED, in his official capacity as Ohio Secretary of State; Mike Dewine, in his official capacity as Ohio Attorney General ; Defendants–Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

768 F.3d 524

OHIO STATE CONFERENCE OF the NATIONAL ASSOCIATION for the Advancement of Colored People et al., Plaintiffs–Appellees

v.Jon HUSTED, in his official capacity as Ohio Secretary of State; Mike Dewine, in his official capacity as Ohio Attorney General ; Defendants–Appellants.

No. 14–3877.

United States Court of Appeals, Sixth Circuit.

Decided and Filed Sept. 24, 2014.

ON BRIEF:Eric E. Murphy, Stephen P. Carney, Steven T. Voigt, Kristopher Armstrong, Office of the Ohio Attorney General, Columbus, Ohio, for Appellants. Freda J. Levenson, Drew S. Dennis, ACLU of Ohio Foundation, Inc., Cleveland, Ohio, Dale E. Ho, Sean J. Young, ACLU Foundation, New York, New York, for Appellees. Mark L. Gross, Nathaniel S. Pollock, United States Department of Justice, Washington, D.C., Majeed G. Makhlouf Cuyahoga County Department of Law, Cleveland, Ohio, Patrick T. Lewis, Bakerhostetler LLP, Cleveland, Ohio, Robert J. Tucker, Bakerhostetler LLP, Columbus, Ohio, for Amici Curiae.

Before: KEITH, MOORE, and CLAY, Circuit Judges.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Defendants Jon Husted, the Ohio Secretary of State, and Mike DeWine, the Ohio Attorney General, appeal from the district court's order granting Plaintiffs' motion for a preliminary injunction. The district court enjoined the enforcement of Senate Bill 238 (“SB 238”) and Secretary of State Directive 2014–17, and ordered the restoration of additional early in-person (“EIP”) voting hours as set forth below on the basis that SB 238 and Directive 2014–17 violate the Equal Protection Clause of the Fourteenth Amendment and Section 2 of the Voting Rights Act of 1965. For the reasons set forth below, we AFFIRM the district court's judgment granting the preliminary injunction.

I. BACKGROUND

A. Procedural History

Plaintiffs, Ohio State Conference of the National Association for the Advancement of Colored People et al. (“NAACP”), filed a complaint in the United States District Court for the Southern District of Ohio on May 1, 2014, pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1973 challenging the constitutionality and legality of SB 238 and Directive 2014–17. In their complaint for declaratory and injunctive relief, Plaintiffs allege that SB 238 and Directive 2014–06 (now Directive 2014–17) (1) violate the Equal Protection Clause of the Fourteenth Amendment by burdening the fundamental right to vote; and (2) violate Section 2 of the Voting Rights Act of 1965 by disproportionately burdening African American voters' ability to participate effectively in the political process.

On June 30, 2014, Plaintiffs moved for a preliminary injunction to “enjoin the enforcement of ... Senate Bill 238 ... and require Defendant Husted to set uniform and suitable in-person early voting hours for all eligible voters that includes multiple Sundays and weekday evening hours.” R. 17 (Pls.' Mot. Prelim. Inj. at 61) (Page ID # 152). Following a hearing on August 11, 2014, the district court granted Plaintiffs' motion for a preliminary injunction on September 4, 2014. R. 72 (D. Ct. Op. and Order at 70) (Page ID # 5917). The district court's order provided as follows:

That the State of Ohio and the Secretary Husted are enjoined from enforcing and implementing SB 238's amendments to § 3509.01 of the Ohio Revised Code reducing the EIP voting period from 35 days before an election to the period beginning the day following the close of voter registration;

That, for purposes of the 2014 general election, the EIP voting period shall consist of the 35 days prior to the election as was the case [prior] to SB 238's enactment;

That, for the 2014 general election, Defendant Secretary Husted shall require all Ohio county Boards of Election to set uniform and suitable EIP voting hours, in addition to those currently established by Directive 2014–17, for the following days:

• Tuesday, September 30, 2014 through Friday, October 3, 2014;

• Monday, October 6, 2014;

• Evening voting hours between Monday, October 20, 2014 and Friday, October, 24, 2014, and between Monday, October 27, 2014 and Friday, October 31, 2014. Provided, that in setting such hours, Husted must, in good faith, take into consideration the Court's findings and legal conclusions regarding the impact of a lack of evening voting hours on the protected classes of voters discussed in this Memorandum Opinion and Order; and

• Sunday, October 26, 2014; and

That Defendant Secretary Husted is enjoined from preventing individual county Boards of Election from adopting, by a majority vote of their members and in accordance with the procedures established by Ohio election law, EIP voting hours in addition to those specified above and in Directive 2014–17.

Further, all issues regarding and pertaining to future elections are deferred and reserved for consideration on the motion for a permanent injunction. In the interim, the Ohio General [A]ssembly is charged with the responsibility of passing legislation consistent with this Memorandum Opinion and Order....

Id. at 70–71 (Page ID # 5917–18) (footnote omitted).

Defendants timely appealed the district court's order granting a preliminary injunction to Plaintiffs and moved this court to expedite that appeal. After the district court denied Defendants' motion for a stay of that order, Defendants moved this court to stay the order pending appeal. We granted Defendants' motion to expedite the appeal on September 11, 2014, and denied their motion for a stay of the order granting a preliminary injunction to Plaintiffs on September 12, 2014.

The Ohio General Assembly (“General Assembly”) filed a motion with the district court on July 11, 2014 to intervene in this case, which the district court denied on July 30. On August 1, the General Assembly filed a notice of appeal of that decision, which appeal is pending under case number 14–3756.

After the district court granted Plaintiffs' motion for a preliminary injunction and after Defendants filed their notice of appeal in the instant case (appeal number 14–3877), the district court granted the General Assembly's renewed motion to intervene, stating that the motion was granted “for the purpose of appeal only.” R. 75 (D. Ct. Order Granting General Assembly's Intervention for Appeal) (Page ID # 5954). The General Assembly then filed a notice of appeal that is docketed as appeal number 14–3881. The General Assembly has filed a brief in appeal 14–3881. It has also filed a motion to file a brief instanter in 14–3877, which included an accompanying brief supporting Defendants' appeal in this case. We do not address in this appeal whether the district court's intervention decisions were proper, and we do not resolve appeals numbers 14–3756 and 14–3881. Nevertheless, we consider the arguments the General Assembly presented in the brief filed in 14–3881 as if it were filed as an amicus curiae brief in this case. Moreover, we also consider the arguments presented by amici curiae United States and Cuyahoga County in briefs filed in this case.

B. Factual Background

Ohio established early in-person voting largely in response to well-documented problems in administering the 2004 general election. As we explained in Obama for America v. Husted, 697 F.3d 423 (6th Cir.2012), “[d]uring that election, Ohio voters faced long lines and wait-times that, at some polling places, stretched into the early morning of the following day.”Id. at 426. In League of Women Voters of Ohio v. Brunner, 548 F.3d 463 (6th Cir.2008), we summarized the problems the League of Women Voters of Ohio reported voters faced as follows:

Voters were forced to wait from two to twelve hours to vote because of inadequate allocation of voting machines. Voting machines were not allocated proportionately to the voting population, causing more severe wait times in some counties than in others. At least one polling place, voting was not completed until 4:00 a.m. on the day following election day. Long wait times caused some voters to leave their polling places without voting in order to attend school, work, or to family responsibilities or because a physical disability prevented them from standing in line. Poll workers received inadequate training, causing them to provide incorrect instructions and leading to the discounting of votes. In some counties, poll workers misdirected voters to the wrong polling place, forcing them to attempt to vote multiple times and delaying them by up to six hours.

Id. at 477–78. In sum, many voters in the 2004 general election were effectively disenfranchised and unable to vote.

In 2005, the Ohio General Assembly passed Substitute House Bill 234 to remedy these problems. 2005 Ohio Laws 40 (Sub.H.B.234). HB 234 instituted no-fault early voting, eliminating the requirement that Ohio voters had to provide an excuse for not being able to vote on Election Day in order to vote early. Early voting is done via an “absentee ballot,” which may be cast either early in-person (“EIP”) at the voter's Board of Elections' (“BOE”) designated voting location or by mailing the ballot to the BOE. Ohio Rev.Code § 3509.05(A). Each county has one BOE, which is permitted to operate only one location for EIP voting. Id. § 3501.10(C). Under the 2005 early-voting scheme, the BOEs were required to make absentee ballots available for voters—either for EIP voting or by mail voting—no later than 35 days before the election. Id. § 3509.01(B)(2) (2014) (as amended Feb. 25, 2014). Ohio law requires voters to be registered at least 30 days prior to an election. Ohio Const. § 5.01; Ohio Rev.Code § 3503.01(A). Therefore, Ohio voters could register and vote on the same day for a five-day period that Plaintiffs refer to as “Golden Week.”

Until 2012, Ohio law gave each of the BOEs for Ohio's eighty-eight counties the discretion to set their own EIP voting hours. R. 62 (Parties' Statement Undisputed Facts ¶ 6) (Page ID # 3307). Thus, for the 2008 and 2010 elections each BOE set its own EIP voting hours. Id. Several counties, including six counties with the...