Hunter v. Hamilton County Bd. of Elections

635 F.3d 219

Tracie HUNTER, Plaintiff–Appellee,Northeast Ohio Coalition for the Homeless; Ohio Democratic Party, Intervenors–Appellees,

v.HAMILTON COUNTY BOARD OF ELECTIONS; Caleb Faux; Timothy M. Burke; Alex Triantafilou; Charles (Chip) Gerhardt, III, Defendants,Hamilton County Board of Elections, Defendant–Appellant (11–3060),John Williams, Intervenor–Appellant (10–4481; 11–3059).

Nos. 10–4481

11–3059

11–3060.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 21, 2011.Decided and Filed: Jan. 27, 2011.Rehearing and Rehearing En Banc Denied March 29, 2011.

OPINION TEXT STARTS HEREWest CodenotesValidity Called into DoubtOhio R.C. § 3505.183ARGUED: R. Joseph Parker, Taft Stettinius & Hollister LLP, Cincinnati, Ohio, for Appellants. Jennifer L. Branch, Gerhardstein & Branch Co. LPA, Cincinnati, Ohio, Caroline H. Gentry, Porter Wright Morris & Arthur, LLP, Dayton, Ohio, for Appellees. David Todd Stevenson, Hamilton County Prosecutor's Office, Cincinnati, Ohio, for Hamilton County Board of Elections. ON BRIEF: R. Joseph Parker, W. Stuart Dornette, John B. Nalbandian, Taft Stettinius & Hollister LLP, Cincinnati, Ohio, James W. Harper, Hamilton County Prosecutor's Office, Cincinnati, Ohio, for Appellants. Jennifer L. Branch, Alphonse A. Gerhardstein, Gerhardstein & Branch Co. LPA, Cincinnati, Ohio, Caroline H. Gentry, Porter Wright Morris & Arthur, LLP, Dayton, Ohio, Subodh Chandra, The Chandra Law Firm, LLC, Cleveland, Ohio, Donald J. McTigue, Mark A. McGinnis, McTigue & McGinnis, LLC, Columbus, Ohio, Timothy M. Burke, Manley Burke LPA, Cincinnati, Ohio, for Appellees. Richard N. Coglianese, Pearl M. Chin, Office of the Ohio Attorney General, Columbus, Ohio, for Amicus Curiae.Before: MOORE, COLE, and ROGERS, Circuit Judges.MOORE, J., delivered the opinion of the court, in which COLE, J., joined. ROGERS, J. (pp. 247–49), delivered a separate opinion concurring in the judgment.

OPINIONKAREN NELSON MOORE, Circuit Judge.

This case arises from the November 2010 election for Hamilton County Juvenile Court Judge between candidates Tracie Hunter and John Williams. Plaintiff-appellee Hunter brought a claim under 42 U.S.C. § 1983 for alleged violations of due process and equal protection by defendant Hamilton County Board of Elections (“Board”) with respect to its review and counting of provisional ballots. Hunter alleges that the Board has created a practice of investigating whether invalid provisional ballots were miscast as a result of poll-worker error and, if they were, counting the ballots. She alleges that the Board refused to apply this practice to approximately 849 ¹ other provisional ballots miscast in the wrong precinct. After the Board completed its count of provisional ballots and added the provisional total to the election-day total, Hunter was 23 votes behind Williams.

Before us are the following consolidated appeals: (1) intervenor-appellant Williams's appeal of the district court's November 22, 2010 order granting a preliminary injunction ordering the Board “to investigate whether provisional ballots cast in the correct polling location but wrong precinct were improperly cast because of poll worker error”; (2) Williams's appeal of the district court's January 12, 2011 order, which ordered the Board to count 165 of the 849 disputed ballots and to investigate and count certain other ballots subject to an existing federal consent decree; and (3) the defendant-appellant Board's appeal of the district court's January 12 order. For the reasons explained below, we AFFIRM the district court's November 22 order and AFFIRM in part and VACATE in part the district court's January 12 order.

I. BACKGROUND & PROCEDURAL HISTORY

This case comes to us with a lengthy history. It is helpful to start with an explanation of provisional voting in Ohio. Under Ohio law, certain voters not able to cast a regular ballot in an election may cast a provisional ballot. Ohio Rev.Code Ann. § 3505.181(A). For example, individuals whose names are not on the official list of eligible voters for the polling place, who requested an absentee ballot, or whose signature was deemed by the precinct official not to match the name on the registration forms may be provisional voters. Id. To cast a provisional ballot, the voter must execute an affirmation stating that he or she is registered to vote in the jurisdiction and is eligible to vote in the election. Id. §§ 3505.181(B)(2); 3505.182. The Board then must determine whether a provisional ballot is valid and therefore required to be counted. Relevant to this dispute, if the Board determines that “[t]he individual named on the affirmation is not eligible to cast a ballot in the precinct or for the election in which the individual cast the provisional ballot,” then the ballot envelope shall not be opened and the ballot shall not be counted. Id. § 3505.183(B)(4)(a)(ii).² “Once a provisional ballot is separated from its envelope, the ballots are then commingled to protect voter secrecy, and it becomes impossible to track the votes of any provisional voter.” State ex rel. Skaggs v. Brunner, 120 Ohio St.3d 506, 900 N.E.2d 982, 984 (2008).

Also important is the concept of a multiple-precinct polling location. For financial and other administrative reasons, Hamilton County has decided to have some buildings serve as the polling location for several nearby precincts. R.38–8 Ex. 1 (Burke letter at 2). In such locations, voters must go to the correct “precinct”—i.e., table—within the location to cast a valid ballot. To assist voters in finding the correct table, the County assigns an extra poll worker as a “precinct guide” at sixteen of its seventeen polling locations with four or more precincts. The 152 polling locations that have two or three precincts do not have an extra poll worker to serve as a precinct guide. Applicable to all locations but particularly relevant to locations with multiple precincts, Ohio law requires poll workers to assist voters in certain ways if an issue arises regarding the voter's correct precinct:

If an individual declares that the individual is eligible to vote in a jurisdiction other than the jurisdiction in which the individual desires to vote, or if, upon review of the precinct voting location guide using the residential street address provided by the individual, an election official at the polling place at which the individual desires to vote determines that the individual is not eligible to vote in that jurisdiction, the election official shall direct the individual to the polling place for the jurisdiction in which the individual appears to be eligible to vote, explain that the individual may cast a provisional ballot at the current location but the ballot will not be counted if it is cast in the wrong precinct, and provide the telephone number of the board of elections in case the individual has additional questions.

Ohio Rev.Code Ann. § 3505.181(C)(1).³ If the voter refuses to go to the correct precinct, or to the Board's office, the voter still may cast a provisional ballot, but the ballot cannot be opened or counted if the voter is not properly registered in the precinct or not eligible to vote in the election, or if the voter's eligibility to vote in the precinct and in the election cannot be established from the Board's records. Id. § 3505.181(C)(2).

In 2006, intervenor-appellee the Northeast Ohio Coalition for the Homeless (“NEOCH”) sued the Ohio Secretary of State alleging a number of election-related claims including challenges to Ohio's voter-identification laws. NEOCH v. Brunner, No. C2–06–896 (S.D.Ohio). This suit resulted in NEOCH and then-Secretary of State Jennifer Brunner entering into a consent decree, which, among other provisions, mandated that the Board “may not reject a provisional ballot cast by a voter, who uses only the last four digits of his or her social security number as identification” if certain deficiencies in the ballot, including being cast “in the wrong precinct, but in the correct polling place,” were the result of poll-worker error. NEOCH, No. C2–06–896 (S.D.Ohio Apr. 19, 2010) (consent decree). The consent decree, in effect, carved out an exception for counting provisional ballots otherwise invalid under Ohio law if the deficiency was due to poll-worker error—albeit a narrow one limited to those provisional ballots cast by a voter who uses the last four digits of his or her Social Security number as identification.

After the consent decree was entered, Secretary Brunner issued Directive 2010–73 ⁴ and Directive 2010–74 to assist the Board in processing and counting provisional ballots in accordance with the decree. Section VII of Directive 2010–74 provides examples of poll-worker error contemplated under the consent decree as well as steps for the Board to take when there is evidence of poll-worker error, including when “a board of elections finds multiple provisional ballots voted in the correct polling location but wrong precinct.” R.1–2 (Directive 2010–74 at 11–12).

Shortly after the November 2010 election, the Board held meetings on November 16, 2010, and November 19, 2010, to process and vote on the provisional ballots that had been cast. The Board first unanimously voted to accept and count over 8000 provisional ballots with little discussion. R.1–3 (Nov. 16, 2010 Board Meeting Tr. at 23–29). The Board next voted unanimously to accept and count over six hundred ballots in which the poll worker checked contradictory information regarding whether the voter was required to provide additional information to the Board. Id. at 29–33. The Board's counsel indicated that he thought the group of ballots “falls within demonstrated pollworker error under Secretary of State Brunner's directive regarding that issue.” Id. at 32. The Board then reviewed a group of 849 ballots that were cast by voters on election day at polling locations but were cast in the wrong precinct. The record reveals that the Board and its attorney understood Ohio...