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

Filing 520

ORDER denying 515 Motion to Quash; granting in part and denying in part 516 Motion for Extension of Time. Signed by Judge Algenon L. Marbley on 1/29/2016. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
THE NORTHEAST OHIO COALITION :
FOR THE HOMELESS, et al.,
:
:
Plaintiffs,
:
:
v.
:
:
JON HUSTED, in his official capacity as :
Secretary of the State of Ohio, et al., :
:
Defendants.
:

Case No. 2:06-CV-896

JUDGE ALGENON L. MARBLEY
Magistrate Judge Terence P. Kemp

OPINION & ORDER
Before the Court are Respondent Miami County Board of Elections' ("Miami County")
January 22, 2016 Motion to Quash (Doc. 515) and Plaintiffs' The Ohio Coalition for the
Homeless, et al. ("NEOCH") Motion for Extension of Time (Doc. 516). Miami County's Motion
to Quash is DENIED. NEOCH's Motion for Extension of Time is GRANTED in part and
DENIED in part.
I. Brief Background
On January 25, 2016, Plaintiffs filed a Motion for Extension of Time to extend deadlines
for the matter. (Doc. 516.) Plaintiffs sought to change the case schedule by pushing back the
deadline for discovery to April 15, 2016 in preparation for a trial to commence in mid-June.
Plaintiffs argue that, although Plaintiffs have so far discovered "strong evidence" that
certain county elections boards have engaged in impermissible elections behavior, Plaintiffs need
more time to conduct more discovery. (Doc. 516 1.)
Plaintiffs further allege resistance on the part of counties who are refusing to produce
relevant evidence, (Doc. 516 2), including Miami County's Motion to Quash, which claims that

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Plaintiffs' subpoena "fails to allow for a reasonable time in which the Board may comply with
the subpoena," deeming the subpoena "burdensome and oppressive," and arguing that the
subpoena "requires the disclosure of documents and/or information which is prohibited by law."
(Doc. 515 3.)
Plaintiffs contend that certain defendants have recently suggested that a protective order
must be entered before those defendants, under Ohio's Public Records Act, can protect certain
confidential documents from public release. (Doc. 516 2.)
Defendants responded in opposition to Plaintiffs' Motion for Extension of Time on
January 26, 2016. (Doc. 517.) Defendants argue that Plaintiffs failed to justify their request for
an extension, and Defendants say that the case is actually "notable for the lack of discovery
problems," and that he was "surprised" when Plaintiffs "reached out on the last day of discovery
to request a three month extension of the case schedule." (Id. 2.) Defendants argue that Plaintiffs'
claims regarding the foot-dragging of the counties "defy reality," (id. 3), and that the January 22,
2016 motion to quash filed by the Board of Elections of Miami County, mentioned above, is the
only example Plaintiffs can cite. Defendants further argue that more discovery is unwarranted
and would significantly prejudice Defendants. (Id. 4-5.)
The Court held a telephonic status conference on January 28, 2016 to address the abovereferenced matters. (See Doc. 518.)
At the telephonic status conference parties' concerns were addressed and the following
agreement reached: counsel for Plaintiffs and Defendants are to confer and draft a protective
order to be filed with the Court on or before February 1, 2016. The terms of the protective order
will protect the confidentiality of voters. Counsel for Miami County expressed concern in its
motion to quash and at the above-referenced telephonic status conference that disclosure of

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certain voter information on election paperwork to third parties would violate Ohio Revised
Code § 3505.181(B)(5)(b) and 52 U.S.C. § 15482(a)(5)(B). Specifically, counsel argue that these
statutes
indicate that only the voter who cast a ballot provisionally may ascertain whether
his or her ballot was counted. Under these provisions of law, only the names of
voters and the precincts in which they cast their provisional ballots are subject to
disclosure to persons other than the voter itself [sic]. Thus, to turn over to the
Plaintiffs rejected provisional ballots would be a violation of law.
(Doc. 515 at 5.) This is incorrect for multiple reasons. Preliminarily, 52 U.S.C. § 15482(a)(5)(B)
is not part of the United States Code. Counsel most likely meant to refer to 42 U.S.C. § 15482,
the Help Americans Vote Act ("HAVA"),1 which was transferred to 52 U.S.C. § 21082. It reads:
The appropriate State or local election official shall establish a free access system
(such as a toll-free telephone number or an Internet website) that any individual
who casts a provisional ballot may access to discover whether the vote of that
individual was counted, and, if the vote was not counted, the reason that the vote
was not counted.
Ohio Revised Code § 3505.181(B)(5)(b) reads:
If, at the time that an individual casts a provisional ballot, the individual provides
identification in the form of a current and valid photo identification, a military
identification, or a copy of a current utility bill, bank statement, government
check, paycheck, or other government document, other than a notice of voter
registration mailed by a board of elections under section 3503.19 of the Revised
Code, that shows the individual's name and current address, or provides the
individual's driver's license or state identification card number or the last four
digits of the individual's social security number, the individual shall record the
type of identification provided or the driver's license, state identification card, or
social security number information and include that information on the
provisional ballot affirmation under division (B)(3) of this section.
Miami County would have the Court interpret the statutes to mean that the person who cast the
provisional ballot is the only entity with legitimate access to information on the ballot. Not so.
Nothing in the plain language of the above-quoted statutes suggests that the voter who cast the
provisional ballot is the only entity that may ascertain whether her ballot was counted. Further,
1

Thomas v. New York City Bd. of Elections, 898 F. Supp. 2d 594, 597 (S.D. New York 2012).

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the implications of that interpretation would be absurd. Indeed were the voter the only entity with
access to such information, all oversight of the process of ballot handling, including judicial
oversight, would be rendered impossible.
Due to the lack of any argument or authority supporting Miami County's interpretation of
the statutes, the Court rejects it. See Deutsche Bank Nat. Trust Co. v. Tucker, 621 F.3d 460, 463
(6th Cir. 2010) ("If the statutory language is unambiguous, the judicial inquiry is at an end, and
the plain meaning of the text must be enforced") (internal quotations omitted); see also State v.
Kreischer, 109 Ohio St.3d 391 (2006) ("When the language of a statute is plain and
unambiguous and conveys a clear and definite meaning, there is no need for [the] court to apply
rules of statutory interpretation.").
At the conference, Plaintiffs sought leave to depose representatives from fourteen
additional county boards of elections. Defendants oppose Plaintiffs' request. The Court directs
Plaintiffs to file a motion and supporting memorandum on or before February 1, 2016 setting
forth the factual bases for the requested depositions. Plaintiffs must demonstrate that the
requested depositions will produce information relevant to Plaintiffs' claims or defenses.
Defendants will have until February 8, 2016 to respond in opposition.
All other deadlines as expressed in the September 25, 2015 Scheduling Order remain in
effect, which are:
February 1, 2016

Motions for summary judgment due

February 15, 2016

Responses to motions for summary judgment due

February 22, 2016

Replies to motions for summary judgment

March 1, 2016

Oral argument on motions for summary judgment

March 2, 2016

Motions in limine, pretrial motions, designation of deposition
portions, witness statements, stipulations, and exhibit lists due
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March 8, 2016

Memoranda contra pretrial motions or motions in limine,
objections to deposition designations due, and final pretrial order

March 10, 2016

Final pretrial conference, submission of trial briefs due

March 16, 2016

Trial - opening statements and presentation of evidence.

II. ORDER
Miami County's Motion to Quash is DENIED. NEOCH's Motion for Extension of Time
is GRANTED in part and DENIED in part.

IT IS SO ORDERED.

/s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: January 29, 2016

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