Obama for Am. v. Husted

697 F.3d 423

OBAMA FOR AMERICA; Democratic National Committee; Ohio Democratic Party, Plaintiffs–Appellees,

v. Jon HUSTED, Ohio Secretary of State; Mike Dewine, Ohio Attorney General, Defendants–Appellants (12–4055),National Guard Association of the United States, et al., Intervenor Defendants–Appellants (12–4076).

Nos. 12–4055, 12–4076.

United States Court of Appeals, Sixth Circuit.

Oct. 5, 2012.

Validity Called into Doubt

Ohio R.C. § 3509.03ON BRIEF:William S. Consovoy, Elbert Lin, Brendan J. Morrissey, J. Michael Connolly, Wiley Rein LLP, Washington, D.C., Richard N. Coglianese, Michael J. Schuler, Lindsay M. Sestile, Ohio Attorney General's Office, Columbus, Ohio, for Appellants in 12–4055. James M. Dickerson, Bingham Greenebaum Doll LLP, Cincinnati, Ohio, for Appellants in 12–4076. Donald J. McTigue, Mark A. McGinnis, J. Corey Colombo, McTigue & McGinnis LLC, Columbus, Ohio, Robert F. Bauer, Perkins Coie, Washington, D.C., Jennifer Katzman, Obama for America, Chicago, Illinois, for Appellees. Lawrence J. Joseph, Washington, D.C., Jay Alan Sekulow, American Center for Law & Justice, Washington, D.C., Joseph E. Sandler, Elizabeth F. Getman, Sandler, Reiff, Young & Lamb, P.C., Washington, D.C., Paul J. Gains, Mahoning County Board of County Commissioners, Youngstown, Ohio, Stephen D. Hartman, Kerger & Hartman, LLC, Toledo, Ohio, Kathleen M. Clyde, Kent, Ohio, for Amici Curiae.

Before: CLAY and WHITE, Circuit Judges; HOOD, District Judge. ^*

CLAY, J., delivered the opinion of the court, in which HOOD, D.J., joined. WHITE, J. (pp. 437–43), delivered a separate opinion concurring in part and dissenting in part.

OPINION

CLAY, Circuit Judge.

Defendants Jon Husted, the Secretary of State of Ohio, and Mike DeWine, the Attorney General of Ohio (collectively the “State”), joined by Intervenors representing numerous military service associations (“Intervenors”), appeal from the district court's order granting Plaintiffs' motion for a preliminary injunction. The district court enjoined the State from enforcing Ohio Rev.Code § 3509.03 to the extent that it prevents some Ohio voters from casting in-person early ballots during the three days before the November 2012 election on the basis that the statute violates the Equal Protection Clause of the Fourteenth Amendment. For the reasons set forth below, we AFFIRM the district court's order granting the preliminary injunction.

BACKGROUND

I. Procedural History

On July 17, 2012, Plaintiffs Obama for America, the Democratic National Committee, and the Ohio Democratic Party filed a complaint in district court against Jon Husted, in his official capacity as Secretary of State of Ohio, and Mike DeWine, in his official capacity as Attorney General of Ohio. Plaintiffs alleged that Ohio Rev.Code § 3509.03 was unconstitutional insofar as it imposes on non-military voters a deadline of 6:00 p.m. on the Friday before Election Day for in-person early voting.¹ On the same day, Plaintiffs moved for a preliminary injunction preventing the statute's enforcement. They argued that the relevant statutory provisions “burden the fundamental right to vote but are not necessary to any sufficiently weighty state interest.” (R. 2, at 2.)

On August 1, 2012, numerous military service associations filed a motion to intervene, and the district court granted the motion. The State and Intervenors opposed Plaintiffs' motion for a preliminary injunction. They argued that the State's interest in providing military voters with added in-person early voting time and the burden on local boards of elections of providing that same extra time for all voters justified imposing a different deadline on military and overseas voters than all other voters.

The district court conducted a hearing on Plaintiffs' motion on August 15, 2012. The parties filed numerous exhibits, includinglegislative history, declarations of career military officers and voting experts, and statistical and demographic studies by various governmental agencies and non-governmental organizations. On August 31, 2012, the district court issued an opinion and order granting Plaintiffs' motion for a preliminary injunction. The district court concluded that § 3509.03 violated the Equal Protection Clause to the extent that it set a different in-person early voting deadline for non-military voters because “the State's interests are insufficiently weighty to justify the injury to Plaintiffs.” ––– F.Supp.2d ––––, ––––, No. 2:12–cv–00636, 2012 WL 3765060, at *10 (S.D.Ohio Aug. 31, 2012). The district court enjoined the enforcement of § 3509.03 and ordered that in-person early voting be available to non-military voters on the same terms as before the enactment of Amended Substitute House Bill 224 and Substitute Senate Bill 295. Id. at ––––, 2012 WL 3765060, at *22–23. The preliminary injunction ensures that all Ohio voters—military, overseas, and non-military—are afforded the same opportunity for in-person early voting that was available to them prior to the enactment of § 3509.03.

The State and Intervenors now appeal the district court's order granting a preliminary injunction. On September 12, 2012, the district court denied the State's motion to stay its order pending appeal, and the preliminary injunction remains in effect.

II. FactsA. In–Person Early Voting in Ohio

Ohio introduced in-person early voting largely in response to the myriad problems faced by voters during the 2004 election. During that election, Ohio voters faced long lines and wait-times that, at some polling places, stretched into the early morning of the following day. To prevent similar problems from disenfranchising voters in the future and to ease the strain of accommodating all voters on a single day, the State established no-fault absentee voting in October 2005. The new rules eliminated the need for absentee voters to have an excuse for not voting on election day. See 2005 Ohio Laws 40 (Sub. H.B. 234). After the creation of in-person early voting, any registered voter could cast an absentee ballot at the appropriate board of elections office through the Monday before the election. See id. (amending Ohio Rev.Code §§ 3509.02–3509.04).

The evidence considered by the district court showed that a large number of Ohio voters chose to utilize the new early voting procedures in elections from 2006 through 2010. Early voting peaked during the 2008 election, when approximately 1.7 million Ohioans cast their ballots before election day, amounting to 20.7% of registered voters and 29.7% of the total votes cast. In Ohio's twelve largest counties, approximately 340,000 voters, or about 9% of the total votes cast in those counties, chose to vote early at a local board of elections office. Using data from seven of Ohio's largest counties, one study projected that, in 2008, approximately 105,000 Ohioans cast their ballots in person during the final three days before the election. In 2010, approximately 1 million Ohioans voted early, and 17.8% of them chose to cast their ballots in person. In a poll conducted after the 2010 election, 29.6% of early voters reported voting within one week of election day.

Voters who chose to cast their ballots early tended to be members of different demographic groups than those who voted on election day. Early voters were “more likely than election-day voters to be women, older, and of lower income and education attainment.” (R. 34–31, Pls.' Ex. 27, at 1.) Data from Cuyahoga and Franklin Counties suggests that early voters were disproportionately African–American and that a large majority of early in-person votes (82% in Franklin County) were cast after hours on weekdays, on the weekend, or on the Monday before the election.

B. Legislative Changes to In–Person Early Voting

On July 1, 2011, Ohio Governor John Kasich signed Amended Substitute House Bill 194, an omnibus bill that made broad changes to Ohio election law. Among other things, the Ohio legislature apparently intended to change the deadlines for in-person early voting from the Monday before the election to 6:00 p.m. on the Friday before the election. Instead, H.B. 194 created two separate and contradictory deadlines: one on Friday and one on Monday. For non-military voters, Ohio Rev.Code § 3509.03 contained the former Monday deadline, but an amended § 3509.01 imposed the new Friday deadline. Military and overseas voters found themselves in much the same position, with § 3511.02 containing the former deadline, and an amended § 3511.10 containing the new one.

In an attempt to correct its mistake, the Ohio General Assembly passed Amended Substitute House Bill 224, which became effective on October 27, 2011. H.B. 224 fixed the inconsistent deadlines in § 3509.03 and § 3511.02, changing the deadlines for all voters to 6:00 p.m. on the Friday before the election. Before the technical corrections in H.B. 224 could take effect, however, a petition with more than 300,000 signatures was filed to put the omnibus election law, H.B. 194, to a referendum. The referendum petition was certified by the Secretary of State on December 9, 2011, and pursuant to the Ohio Constitution, the implementation of H.B. 194 was suspended for the 2012 election cycle.

On May 8, 2012, the General Assembly repealed the then-suspended H.B. 194 through Substitute Senate Bill 295. However, neither the organizers of the referendum petition nor the Ohio legislature thought to attack or repeal the bill containing the technical changes, H.B. 224, which remained in effect. Therefore, even though the original bill, H.B. 194, was repealed, the technical changes contained in H.B. 224 remained in place, and Ohio voters were still left with inconsistent deadlines. Nonmilitary voters could cast ballots in-person until 6:00 p.m. on the Friday before the election. But military and overseas voters had two deadlines: Friday at 6:00 p.m. pursuant to § 3511.02, and the close of the polls on election day pursuant to § 3511.10.

In order to correct...