The Northeast Ohio Coalition for the Homeless et al v. Brunner

Filing 376

ORDER re 374 Order Setting Hearing on Motion. This Order does not affect the oral argument set in the NEOCH case, which will go forward as planned. (NEOCH Doc. 368, 374). Signed by Judge Algenon L. Marbley on 7/9/2013. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
SERVICE EMPLOYEES
INTERNATIONAL
UNION, LOCAL 1, et al.,

:
:
:
:
:
:
:
:
:
:
:
:
:

Plaintiffs,
v.
JON HUSTED, et al.,

Defendants.

THE NORTHEAST OHIO COALITION
FOR THE HOMELESS, et al.,
Plaintiffs,
v.
JON HUSTED, in his official capacity as
Secretary of the State of Ohio,
Defendant.
and
STATE OF OHIO
Intervenor-Defendant

:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:

Case No. 2:12-CV-562

JUDGE ALGENON L. MARBLEY

Magistrate Terence P. Kemp

Case No. 2:06-CV-896

JUDGE ALGENON L. MARBLEY

Magistrate Judge Terence Kemp

ORDER
These are two related actions in this Court: Service Employees’ International Union,
Local 1, et. al. v. Husted, et. al., Case No. 2:12-cv-562 (“the SEIU case”) and The Northeast
Ohio Coalition for the Homeless, et. al. v. Husted & State of Ohio, Case No. 2:06-cv-896 (“the
NEOCH case”).

This matter is before the Court on SEIU Local 1 Plaintiffs’ Motion for Partial Summary
Judgment (SEIU Doc. 107) (the “Motion”). The Court previously scheduled a hearing for July
12, 2013 on this Motion. The Motion seeks to make permanent the Preliminary Injunction
(SEIU Doc. 67) issued by the Court on August 27, 2012, insofar as it pertains to provisional
ballots cast in the correct polling location but incorrect precinct. In Defendants’ Response, they
consented to the relief sought by Plaintiffs. With regard to the Motion sub judice, the only
dispute between the parties is to what extent the Court should explain its decision to order the
permanent injunction. While the parties may stipulate to the entry of a permanent injunction,
they may not draft the Opinions and Orders of this Court.
A. Plaintiffs’ Motion for a Permanent Injunction
The legal and evidentiary bases have been discussed at length in this Court’s Opinion &
Order granting the Preliminary Injunction, and the Sixth Circuit’s subsequent decisions affirming
this Court’s Preliminary Injunction, Serv. Employees Int'l Union, Local 1 v. Husted, 887 F. Supp.
2d 761 (S.D. Ohio 2012), aff'd in part, rev'd in part sub nom. Ne. Ohio Coal. for Homeless v.
Husted, 696 F.3d 580 (6th Cir. 2012) and aff'd, 12-4079, 2013 WL 628527 (6th Cir. Feb. 20,
2013). Hence, the Court finds it necessary only to summarize the rationale of those decisions.
On August 27, 2012, this Court granted Plaintiffs’ a Preliminary Injunction (Doc. 67)
which prohibited Defendants from disqualifying provisional ballots cast in the correct polling
place but incorrect precinct. The Sixth Circuit affirmed this Court’s Preliminary Injunction. It
held, in relevant part, that “the summary rejection of poll-worker-induced right-place/wrongprecinct ballots” is both a likely equal protection violation and a likely due process violation.
Ne. Ohio Coal. for Homeless v. Husted, 696 F.3d 580, 593-99 (6th Cir. 2012). The Sixth Circuit
also held that prior to the entry of the Preliminary Injunction (Doc. 67), Defendants’ treatment of

2 

provisional ballots had been a “substantial burden” on the right to vote, not to mention
“fundamentally unfair.” Id. at 597. “As a result, poll-worker error causes thousands of qualified
voters to cast wrong-precinct ballots from the correct polling locations.” Id.
To prevent such disenfranchisement in the future, the parties have both moved, albeit
separately, for this Court to transform the Preliminary Injunction into a Permanent Injunction
with regard to “poll-worker-induced right-place/wrong-precinct ballots.” For the foregoing
reasons, the parties’ request is GRANTED. The Court hereby ORDERS:
The State of Ohio, the Ohio Secretary of State and his County Boards of Elections may
not reject any provisional ballot cast by a lawfully-registered voter in the correction polling
location in any election because the voter cast his or her provisional ballot in the wrong precinct,
unless the poll worker who processed the voter’s provisional ballot has:
(a) determined the correct precinct for the voter;
b) directed the voter to the correct precinct;
(c) informed the voter that casting the wrong-precinct ballot would result in all votes
on the ballot being rejected under Ohio law; and
(d) the voter refused to travel to the correct precinct and insisted on voting the invalid
ballot;
and the Board of Elections has verified that the precinct to which the poll worker directed the
voter was the correct precinct for that voter. If the County Board of Elections cannot verify that
the poll worker directed the voter to the correct precinct, the votes cast on the provisional ballot
must be counted in all races and for all issues for which the voter would have been eligible to
vote if he/she had cast the ballot in the correct precinct.

3 

Since this Court has now ordered the Permanent Injunction sought by Plaintiffs, the issue
is moot, rendering as superfluous the July 12, 2013 oral argument on the Motion. The Court,
therefore, VACATES its previous Order of July 3, 2013 (Doc. 109) and VACATES the oral
argument in the SEIU case. This Order does not affect the oral argument set in the NEOCH case,
which will go forward as planned. (NEOCH Doc. 368, 374).
B. Issues Raised by Defendants in Response
In Defendants’ Response to the Motion, as well as stipulating to the entry of a Permanent
Injunction, Defendants also ask the Court to order Plaintiffs to inform the Court prior to July 12,
2013 whether they plan to litigate the remaining issues in this case. At least one of the remaining
issues, the constitutionality of Ohio’s law requiring disqualification of poll-worker-induced
wrong-location/wrong-precinct ballots, is pending on appeal before the Sixth Circuit. The
parties are also working to mediate the issue in the Sixth Circuit. It would be premature of this
Court to issue an Order which would affect ongoing proceedings in the Sixth Circuit. Thus,
Defendants’ request for the Court to order Plaintiffs to inform the Court prior to July 12, 2013
whether they plan to litigate the remaining issues in this case is DENIED. Once the Sixth
Circuit issues its decision on the appeal, this Court will proceed in a manner consistent with the
decision of the Sixth Circuit.
IT IS SO ORDERED.
s/Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
Dated: July 9, 2013   

4