On July 17, 2012, Obama for America, the Democratic National Committee, and the Ohio Democratic Party sued the State of Ohio in the U.S. District Court for the Southern District of Ohio under 42 U.S.C. §1983. Plaintiffs, represented by private counsel, asked the court to order a preliminary and permanent injunction against recent changes to Ohio's system for managing absentee balloting and early in-person voting. They claimed that these changes would disproportionally effect poor and minority voters in violation of their constitutional rights under the Equal Protection clause of the Fourteenth Amendment.

Specifically, in 2005, following widespread voting difficulties in the 2004 election, Ohio had expanded participation in absentee balloting and in-person early voting to include all registered Ohio voters. But in 2011, the state legislature limited access to in-person early voting during the three days prior to Election Day to only active duty military personnel and overseas residents. Ohio Revised Code 3509.03, Secretary of State Directive 2012-35. In addition, for most voters, weekend in-person early voting was eliminated, as was non-working hour voting-except for the last two weeks prior to Election Day, when elections boards are open until 7 p.m. weekdays. Plaintiffs presented evidence that most early voting had previously taken place in the non-work hours, and on weekends, and that this was particularly true for poor and African-American voters. They argued that Ohio's changes would disproportionately impact these voters.

On August 31, 2012, District Court Judge Peter Economus granted a preliminary injunction in the plaintiffs' favor. 888 F. Supp. 2d 897 (S.D. Ohio 2012). He explained that, under Bush v. Gore, 531 U.S. 98, 104 (2000): "The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another." The court found, that under Anderson v. Celebrezze, 460 U.S. 780 (1983), the interests asserted by the state were outweighed by the burden to would-be early voters. Defendants appealed.

On October 5, 2012, The Sixth Circuit Court of Appeals, in an opinion by Judge Eric Clay, affirmed the district court's grant of a preliminary injunction. 697 F.3d 423 (6th Cir. 2012). On October 16, without recorded dissent, the Supreme Court rejected an application by the State of Ohio for an emergency stay pending a petition for certiorari review. 133 S. Ct. 497 (2012). The Ohio Secretary of State promptly issued Directive 2012-50 to localities requiring that they remain open from 8 to 2 on the Saturday and Monday prior to Election day, and 1 to 5 on the Sunday prior to Election Day.

The November 2012 election came and went. In early 2014, the Ohio Secretary of State issued Directive 2014-06 which limited early in-person voting to only Saturday and Monday before an election, not Sunday. On May 1, 2014, plaintiffs filed a motion for summary judgment and requested that the court order a permanent injunction enjoining the Ohio Secretary of State from enforcing the restrictions codified in § 3509.03 and requiring him to restore in-person early voting to three days immediately preceding all future election days. District Court Judge Peter Economus granted the motion on June 11, 2014, and entered a permanent injunction against the Secretary of State from implementing and enforcing the Friday before election day close of in-person early voting.

Richard Jolly - 10/01/2014


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