This litigation involves two related cases filed in the U.S. District Court for the Southern District of Ohio. The lead case was filed on June 22, 2012, by a number of unions, including Service Employees International Union Local 1 (SEIU), against the State of Ohio challenging several provisions of Ohio's election code. The related case, Ne. Ohio Coal. for the Homeless v. Husted, VR-OH-0081
had been filed in 2006 by the Northeast Ohio Coalition for the Homeless (NEOCH) and others, challenging numerous provisions of Ohio's comprehensive election reform bill, House Bill 3.
Specifically, the NEOCH Plaintiffs alleged that Ohio's amended voter identification requirements violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The NEOCH lawsuit was partially resolved by an April 2010 Consent Decree, which barred rejection of a provisional ballot cast by a voter who uses only the last four digits of his or her social security number as identification (SSN-voters), if poll-worker error was the source of certain deficiencies in the ballot, including being cast in the wrong precinct though in the correct polling place. Early in 2012, the State sought to vacate the NEOCH Decree's terms. However, plaintiffs objected and the Court upheld the validity of the Decree. NEOCH, No. 06-CV-896, 2012 U.S. Dist. LEXIS 94086 (S.D. Ohio July 9, 2012). During the pendency of the Defendants' request to vacate the decree, on June 20, 2012, the NEOCH plaintiffs filed a motion to modify the Decree. On June 22, 2012, numerous organizations filed the SEIU litigation, seeking a statewide injunction requiring that registered voters' provisional ballots which are cast in the wrong precinct, or cast with technically deficient ballot envelopes, still be counted unless the poll worker who processed the deficient ballot affirms that the ballot deficiency is not the result of poll-worker error. The SEIU plaintiffs, here, simultaneously sought a preliminary injunction. The complaint alleged, inter alia, violations of the Equal Protection and Due Process Clauses.
Ohio's complex voter identification requirements, provide thirteen different statutory reasons why an individual will be required to cast a provisional ballot on election day. See Ohio Rev. Code § 3505.181(A)(1)-(13). The result is a high rate of Ohio voters forced to cast provisional ballots rather than normal ballots--around three times the national average. The Ohio Supreme Court held in 2011 that provisional ballots cast in the wrong precinct must be summarily disqualified, even if the voter was not at fault, and even if the Board determines that the voter is lawfully registered to vote. State ex rel. Painter v. Brunner, 941 N.E.2d 782, 794 (Ohio 2011). The current application of Ohio law voids the vote even of a person directed to the wrong precinct by a poll worker.
The district court (Judge Algenon Marbley) held a hearing on SEIU's request for a preliminary injunction on June 30, 2012. On August 27, 2012, the court ruled in favor of the plaintiffs, and entered a preliminary injunction instructing the state to count provisional ballots that, due to poll-worker error, were cast (1) in the wrong precinct but correct polling place, or (2) with nonconforming or incomplete ballot affirmation. The district court relied heavily on an earlier 6th Circuit case, in which the Court of Appeals had upheld a preliminary injunction ordering the counting of provisional ballots that investigation had revealed were cast in the wrong precinct due to poll-worker error. Hunter v. Hamilton Cnty. Bd. of Elections
, 635 F.3d 219 (6th Cir. 2011). The State appealed.
On October 11, 2012, the Sixth Circuit affirmed the preliminary injunction as to the provisional ballots cast at the right polling place but the wrong precinct, but reversed on the smaller issue of the provisional ballots whose voter's affirmation was somehow deficient. Ohio Coal. for Homeless v. Husted, 696 F.3d 580 (6th Cir. 2012). It remanded the case to address the plaintiffs' motion to modify the consent decree in light of the equal protection issues created by the decree's provision for the counting of deficient-affirmation ballots by SSN-4 voters
On October 26, 2012, District Court Judge Marbly granted plaintiffs' motion to modify the consent decree and order county boards of elections to count all provisional ballots cast in the wrong precinct, irrespective of whether they are cast in the correct polling place or an incorrect polling place. Serv. Employees Int'l Union, Local 1 v. Husted, 906 F. Supp. 2d 745 (S.D. Ohio 2012). The court further stated that to treat deficient affirmation ballots differently for SSN-4 voters would deny equal protection to those provisional voters using alternative forms of identification. On November 13, the District Court entered an order clarifying this ruling.
On January 14, 2014, the parties entered into a confidential agreement that would lead to a complete settlement if the court were to vacate its clarifying ruling made on November 13, 2012. The District Court vacated the clarifying order on February 7, 2014. The case is on going as of October 22, 2014, as the parties address attorneys' fees and costs. Richard Jolly - 10/22/2014