League of Women Voters of Ohio et al v. LaRose

Filing 57

OPINION and ORDER denying 31 Motion for Preliminary Injunction; denying 4 Motion for TRO. Signed by Judge Michael H. Watson on 4/3/2020. (jk)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
League of Women Voters
of Ohio, et al.,
Plaintiffs,

Case No. 2:20-cv-1638

v.

Judge Michael H. Watson

Frank LaRose,

Magistrate Judge Deavers

Defendant.
OPINION AND ORDER
Plaintiffs sue Ohio Secretary of State Frank LaRose (“Secretary LaRose”)
and seek an emergency temporary restraining order (“TRO”) to prevent Ohio’s
primary election from taking place in the time and manner prescribed by House
Bill 197 (“H.B. 197”). Mot., ECF No. 4. The State of Ohio, the Ohio Democratic
Party (“ODP”), and the Ohio Republican Party (“ORP”) moved for, and were
granted, leave to intervene as Defendants. Order, ECF No. 38. Likewise, the
Libertarian Party of Ohio (“LPO”) moved for, and was granted, leave to intervene
as a Plaintiff. Id. LPO moves for a TRO or preliminary injunction as well. 1 ECF
No. 31. The Court granted Honest Elections Project’s motion to file an amicus

1

The Court has reviewed LPO’s reply brief, ECF No. 53, but does not consider the
arguments (not to mention new claims) raised for the first time in that brief.

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brief, ECF No. 25, and the Court now grants Disability Rights Ohio’s (“DRO”)
motion to file an amicus brief, ECF No. 54-1. 2
I.

FACTS 3

A. Background
Ohio’s primary election was scheduled for March 17, 2020. On March 9,
2020, Governor Mike DeWine declared a state of emergency in response to the
spread of COVID-19. Within a matter of days, the World Health Organization
declared COVID-19 a pandemic, President Donald Trump declared the COVID19 outbreak a national emergency, and, in Ohio, all schools were closed,
gatherings limited, and restaurants and bars closed for dining-in.
Confusion ensued on March 16, 2020, the day before the election, after
Governor DeWine announced that it was unsafe to hold in-person voting for the
primary election. A lawsuit was filed in the Franklin County Court of Common
Pleas seeking an emergency delay of the election, but the request was denied
later that same day. Ultimately, Ohio’s Department of Health Director Dr. Amy
Acton issued an order prohibiting polling locations from operating on March 17,
2020, due to the COVID-19 pandemic. Thereafter, Secretary LaRose issued

2

To the extent DRO seeks to argue a new claim, such as a claim that H.B. 197 violates
the ADA, that is not included in Plaintiffs’ Amended Complaint, the Court does not
consider it.
3 All relevant facts are taken from Plaintiffs’ Amended Complaint, ECF No. 4, unless
stated otherwise.
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Directive 2020-06, which suspended in-person voting in the primary election until
June 2, 2020. See LaRose Ex 3, ECF No. 44-3.
On March 17, 2020, two lawsuits were filed in the Ohio Supreme Court and
Franklin County Court of Common Pleas challenging Secretary LaRose’s
authority to issue that Directive. See State ex rel. Ohio Democratic Party v.
LaRose, No. 2020-0388 (Ohio Sup. Ct. Mar. 17, 2020); Reardon v. LaRose, No.
20-cv-2105 (Franklin Cty. Ct. Com. Pl. Mar. 17, 2020) 4. The case filed in the
Supreme Court requested that the date of the primary be re-set for an earlier
time and that voting be only through the mail. 5
The Ohio General Assembly became involved and on March 25, 2020,
unanimously passed H.B. 197, a comprehensive COVID-19 bill, which also
established April 28, 2020, as the deadline by which absentee ballots must be
received. Secretary LaRose rescinded his prior directive, and on March 27,
2020, Governor DeWine signed the bill into law. It is that bill that is challenged in
this lawsuit.
Specifically, H.B. 197, Section 32, part of an overarching COVID-19 relief
bill, implements, as relevant, the following for completing voting in Ohio’s primary
election:

4

Appeal voluntarily dismissed on March 31, 2020. See Reardon, et al. v. LaRose, No.
20AP-160 (10th Dist. Ohio Mar. 31, 2020).
5 ODP voluntarily dismissed its lawsuit in the Ohio Supreme Court after H.B. 197 was
passed. ODP Resp. 4 n.1, ECF No. 48; see also State ex rel. Ohio Democratic Party v.
LaRose, 202 Ohio LEXIS 762, (Sup. Ct. Ohio Mar. 27, 2020) (Order granting ODP’s
application for dismissal).
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• Voids Secretary LaRose’s Directive 2020-06, § 32(A);
• Prohibits the processing of voter registration applications
submitted after February 18, 2020, § 32(B)(3);
• Permits eligible voters to apply for an absentee ballot up
through noon on April 25, 2020 (with exceptions for voters
under O.R.C. § 3509.08) and votes cast by absentee mail
ballot 6 postmarked by April 27, 2020, and received by May 8,
2020 7, to be counted, § 32(C), (E)
o Defines eligible electors as those individuals who have
not already cast a ballot in the March 17, 2020 primary
election or other special election, and who were
registered to vote as of February 18, 2020, § 32(C)(1)(a);
and
• Requires Secretary LaRose to send out postcards to registered
voters notifying them how to apply for and submit an absentee
ballot and the deadlines for doing so. § 32(C)(2). 8
H.B. 197, Section 32.
Plaintiffs allege that, by prohibiting the processing of voter registration
applications after February 18, 2020, H.B. 197 violates the National Voter
Registration Act of 1993 (“NVRA”), which requires registration be made available

6

With very limited exceptions for in-person voting. § 32(D)(1).
With limited exceptions. § 32(E)(2)–(3).
8 Currently Ohio Revised Code § 3509.03 requires applicants to “make a written
application” for absentee ballots. Plaintiffs allege that this requirement will
disproportionately burden voters who do not have means for or access to printers,
envelopes, or stamps. However, the Court takes judicial notice of the FAQ section of
the Secretary of State’s website which does not require a pre-printed form, as long as a
written submission of a request for an absentee ballot includes the required information.
It also permits calling your county board of elections and requesting that an absentee
ballot application be sent to you. See Ohio Secretary of State Website, “I don’t have a
printer. Can I request a vote-by-mail ballot?;”
https://www.sos.state.oh.us/elections/voters/2020-primary-frequently-asked-questions/,
last visited April 1, 2020. It still appears, however, that the voter is responsible for
postage required to mail-in the absentee ballot application.
7

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thirty days before any election for federal office. Plaintiffs also argue that H.B.
197 creates an unconstitutional burden on the right to vote, in violation of the
First and Fourteenth Amendments.
Plaintiffs seek a temporary restraining order that mandates the following:
(1)Any qualified Ohio elector who submitted a voter registration
application or updated their registration information between February
19, 2020, and 30 days prior to the day on which the 2020 primary
election is set to conclude shall have their registration information
processed and be permitted to vote in the 2020 Primary Election;
(2)At least 21 days prior to the close of polls for the 2020 primary
election, county boards of elections shall mail all registered electors
who have not already voted in the election a primary ballot for each
party with candidates on the ballot, return postage pre-paid, with
instructions to cast only one ballot and return the ballot in the official
pre-paid postage envelope;
(3)Any elector who has not received a mail absentee ballot at least 14
days prior to the close of polls for the 2020 primary election may
submit a request for such a ballot to their local board of election by
phone;
(4)Any elector who qualifies for in-person voting pursuant to H.B. 197,
§ 32(D)(1), and who received a mail absentee ballot, can vote a
regular in-person ballot if they bring their absentee ballots to their local
board of election;
(5)Any elector who does not receive their mail absentee ballot prior to
the postmark date for mail absentee ballots shall be permitted to vote
a provisional ballot in person at their local board of election;
(6)Any elector will be permitted to cure any deficiencies in their
provisional ballots or absentee ballot identification envelopes by mail,
phone, or email up through the day prior to the day the official canvass
is required to begin;
(7)The conclusion of the 2020 primary election be set at such a time
as will allow election officials to provide orderly notice to electors and
administer the election in the manner provided for herein;

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(8)Defendant LaRose to issue a directive notifying Ohio’s eighty-eight
county boards of elections of the aforementioned requirements; and
(9)Defendant LaRose to educate and inform electors about: the
timeline and process for voting in the upcoming election; and that if
they did not receive an absentee ballot in the mail they may contact
their boards of elections and (a) confirm whether they have been sent
a ballot, and (2) if they have not received a ballot, request a ballot by
phone.
TRO Mot. 1–2, ECF No. 4.
Furthermore, as noted above, the Court has granted permission for the
State of Ohio, the ODP, the LPO, and the RPO to intervene in this action. The
Court also granted Honest Elections Project’s and DRO’s motions to file amicus
briefs. While the Court does not set forth each of their arguments herein, it has
considered everything submitted by these parties in coming to this Opinion and
Order. The Court will discuss certain of their arguments, where appropriate,
infra.
II.

STANDARD OF REVIEW

Plaintiffs seek injunctive relief pursuant to Federal Rule of Civil Procedure
65. In determining whether to grant such relief, the Court considers four factors:
(1) whether the movant has established a substantial probability of success on
the merits; (2) whether the movant would suffer irreparable harm in the absence
of an injunction; (3) whether an injunction would substantially harm third parties;
and (4) whether an injunction would serve the public interest. Winnett v.
Caterpillar, Inc., 609 F.3d 404, 408 (6th Cir. 2010). The factors are not

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prerequisites; rather, they must be balanced in weighing the equities involved.
Capobianco, D.C. v. Summers, 377 F.3d 559, 561 (6th Cir. 2004).
III.

ANALYSIS

As a preliminary matter, no party has disputed Plaintiffs’ standing in this
case, but the Court has an independent duty to ascertain whether the plaintiffs in
a case have standing. The Court has reviewed Plaintiffs’ standing argument and
is satisfied that standing exists to assert these claims. Accordingly, the Court
turns to an analysis of the TRO factors.
A. Likelihood of Success on the Merits
1. The National Voter Registration Act of 1993
Plaintiffs first allege that H.B. 197 violates the NVRA’s thirty-day
registration requirement by prohibiting boards of elections from processing any
voter registration applications received after February 18, 2020. Pls.’ Mot. 13,
ECF No. 4 (citing 52 U.S.C. § 20507(a)(1)) 9.
ODP agrees with Plaintiffs and argues that by establishing April 28, 2020,
as the last day for voting, the Ohio legislature effectively set a new date for
Ohio’s primary election. ODP Resp. 10, ECF No. 48. ODP advances their
argument under both the NVRA and Article V, Section 1 of the Ohio Constitution,
which largely mirrors the NVRA’s requirements and establishes that all citizens

9

Formerly codified at 42 U.S.C. §§ 1973–1973gg-10.

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over eighteen years old, who have “been registered to vote for thirty days, ha[ve]
the qualifications of an elector, and [are] entitled to vote at all elections.”
LPO echoes Plaintiffs’ and ODP’s arguments and adds that H.B. 197
violates Article I, § 4 of the United States Constitution by interfering with
Congress’s authority to regulate the time and manner of federal elections. LPO
Mot. 10–11, ECF No. 31.
The State of Ohio contends that Plaintiffs are operating under the faulty
premise that the Ohio 2020 primary election was moved to April 28, 2020. 10
State of Ohio Resp. 8, ECF No. 52. Instead, the State of Ohio argues that the
primary election was not cancelled on March 16, 2020, only the polling locations
for in-person voting the next day were closed due to a public health crisis. Id. at
9. Likewise, the State of Ohio argues that H.B. 197 did not cancel or reset the
2020 primary election to April 28, 2020, it just extended the deadline by which
already registered voters could cast an absentee ballot. Id. In support, they
argue that H.B. 197 does not establish a new election date because all votes
already cast in the 2020 primary election up and through March 16, 2020, are
being held and will be counted. Id. (citing H.B. 197 § 32(B)). Thus, the State of
Ohio argues, this is not “a ‘re-do’ of the primary election” that requires a reopening of voter registration. Id. at 10. Rather, this is an “election modification”
in that Secretary LaRose is “accept[ing] as valid everything that transpired before

10

Secretary LaRose advances similar arguments. See Secretary LaRose Memo in
Opp. 14–18, ECF No. 44.
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an election emergency arose and simply authoriz[ing] additional methods of, or
time for, voting.” Id. at 11 (quoting Morley, Michael T., Symposium: Election
Emergencies: Voting in the Wake of Natural Disasters and Terrorist Attacks, 67
Emory L.J. 545, 548–50 (2018)) (comparing an election modification, such as
here, with an election cancellation, which entirely nullifies the originally scheduled
election with the expectation that a new one will be held at a later date).
“In 1993, Congress passed the NVRA as a measure meant to reinforce the
right of qualified citizens to vote.” U.S. Student Ass’n Found. v. Land, 546 F.3d
373, 376 (6th Cir. 2008) (citation omitted). “The NVRA reflects the view of
Congress that the right to vote ‘is a fundamental right,’ that government has a
duty to ‘promote the exercise of that right,’ and that discriminatory and unfair
registration laws can have a ‘damaging effect on voter participation’ and
‘disproportionately harm voter participation by various groups, including racial
minorities.’” Project Vote/Voting for Am., Inc. v. Long, 682 F.3d 331, 334 (4th Cir.
2012) (citations to former code provision omitted). Section 8(a)(1) of the NVRA
provides that “each State shall . . . insure that any eligible applicant is registered
to vote in an election . . . not later than . . . 30 days . . . before the date of the
election.” 52 U.S.C. § 20507(a)(1). 11 Under the NVRA, “election” means “a

11

“A person is registered to vote for purposes of Section 8 when ‘the valid voter
registration form of the applicant is: (1) ‘submitted to the appropriate State motor vehicle
authority’ in accordance with 52 U.S.C. § 20504 (registration by application
simultaneous with an application for a motor vehicle driver’s license); (2) submitted by
postmarked mail in accordance with 52 U.S.C. § 20505; (3) ‘accepted at the voter
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general, special, primary, or runoff election.” See 52 U.S.C. § 20502 (terms
synonymous with meanings set forth in 52 U.S.C. § 30101).
Here, Plaintiffs’ arguments under the NVRA are unlikely to succeed on the
merits because the cases upon which Plaintiffs rely are distinguishable, and Ohio
has complied with the NVRA’s requirements.
Ohio’s extension of its absentee ballot deadline is not comparable to the
cases upon which Plaintiffs rely. For example, in Kemp, there was a special
runoff election scheduled more than thirty days after the original voter registration
deadline established for the general election. See Georgia St. Conf. of the
NAACP v. Kemp, No. 1:17-cv-1397, Order on Preliminary Injunction, Doc. 29
(N.D. Ga. May 4, 2017). The court in that case found that the failure to permit
voters to register up until thirty days before the runoff election violated the NVRA.
But the runoff election in that case was a new election, with new candidates and
different ballots, thereby triggering the NVRA’s registration provision.
In Arizona Democratic Party v. Reagan, the district court found that the
Arizona Secretary of State’s failure to account for a federal holiday (Columbus
Day) in establishing its voter registration deadline for the general election violated
the NVRA’s thirty-day requirement because otherwise eligible voters were unable

registration agency’ in accordance with 52 U.S.C. § 20506 (in-person registration at
registration sites or government offices designated by each state); or (4) otherwise
‘received by the appropriate State election official.’ 52 U.S.C. § 20507(a)(1)(A) — (D).”
Ariz. Democratic Party v. Reagan, No. CV-16-03618, 2016 U.S. Dist. LEXIS 153431, at
*41 (D. Az. Nov. 3, 2016) (citation omitted).
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to submit their applications when the post office was closed for the holiday. 2016
U.S. Dist. LEXIS 153431, at **40–47.
The State of Ohio and Secretary LaRose correctly distinguish between an
election modification, which we have here, and an election cancellation. COVID19 presented Defendants with an unprecedented situation where in-person
voting was no longer safe because of a global-health crisis. But unlike in Kemp
or Reagan, there is not a new election scheduled for April 28, 2020. Rather, this
is just a modification and extension of the date by which voters—who were
otherwise eligible and prepared to cast their votes in-person on March 17,
2020—can submit their votes, primarily by absentee ballot. Under Ohio law,
eligible persons interested in voting in Ohio’s March 17, 2020 primary were
required to register by February 18, 2020. That February deadline came and
went before any change was made to the March 17, 2020 in-person voting. In
other words, had in-person voting taken place on March 17, 2020, people who
had not registered to vote by February 18, 2020, would not have been able to
show up that day and cast a vote. As such, the State complied with the NVRA in
granting registration up to thirty days before “the election.”
House Bill 197 does not change the date of “the election”; it merely
extends the deadline for submitting absentee ballots for the March 17, 2020
election until April 28, 2020, and established that only certain people could
submit their votes in person on April 28, 2020. By its own terms, it refers to the
election as the “March 17, 2020 primary election.” E.g., H.B. 197 § 32(B)(1), (2),
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(C)(1). It provides methods for voters “who ha[d] not already cast a ballot in the
March 17, 2020, primary election” to vote “in that election.” Id. at (C)(1).
Because H.B. 197 does not establish a new election or new election date, Ohio
did not violate the NVRA by leaving the cut-off for voter registration as February
18, 2020. Cf. Morley, 67 Emory L.J. at 554 (discussing how New York employed
a similar election modification process after the September 11, 2001 terrorist
attack in that it did not extend the voter registration deadline but did extend the
deadline by which already registered voters could request an absentee ballot,
although this action appears not to have been challenged under the NVRA).
Finally, although the Court does not rely on the intent of the statute, the
Court finds that this decision is not contrary to the purpose of the NVRA.
Granting Plaintiffs’ requested relief would not protect the ability of individuals to
register, but, instead, would confer an extra benefit to a group of people who had
missed their window of opportunity to register by February 18, 2020, before any
change was made by the Ohio legislature.
For these reasons, the Court finds that Plaintiffs are unlikely to succeed on
the merits of their NVRA claim. For the same reasons, the Court finds LPO is
unlikely to succeed on its argument that the Ohio Legislature has exceeded its
authority and violated Article I, § 4 of the United States Constitution by keeping
the registration date February 18, 2020.

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2. First and Fourteenth Amendments
Plaintiffs also contend that the Ohio Legislature’s changes to the voting
procedures for the March 17, 2020 primary election amount to an
unconstitutional burden on the right to vote in violation of the First and Fourteenth
Amendments.
Voting is a fundamental and precious right, and “[o]ther rights, even the
most basic, are illusory if the right to vote is undermined.” Wesberry v. Sanders,
376 U.S. 1, 17 (1964). However, “there must be a substantial regulation of
elections if they are to be fair and honest and if some sort of order, rather than
chaos, is to accompany the democratic processes.” Anderson v. Celebrezze,
460 U.S. 780, 788 (1983) (internal quotation marks and citation omitted). “To
achieve these necessary objectives, States have enacted comprehensive and
sometimes complex election codes. Each provision of these schemes . . .
affects—at least to some degree—the individual’s right to vote . . . .” Id.
“Nevertheless, the state’s important regulatory interests are generally sufficient to
justify reasonable, nondiscriminatory restrictions.” Id. Indeed, voting regulations
do not automatically trigger strict scrutiny even when they impact the right to vote
because, as the Supreme Court has instructed, “states ‘may, and inevitably must,
enact reasonable regulations of parties, elections, and ballots to reduce electionand campaign-related disorder.’” Libertarian Party of Ohio v. Blackwell, 462 F.3d
579, 585 (6th Cir. 2006) (quoting Timmons v. Twin Cities Area New Party, 520
U.S. 351, 358 (1997); citing Storer v. Brown, 415 U.S. 724, 730 (1974)).
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The Court must determine the nature of the burden the regulation places
on voters when setting the standard of review to apply. “While a rational basis
standard applies to state regulations that do not burden the fundamental right to
vote, strict scrutiny applies when a state’s restriction imposes ‘severe’ burdens.”
NE Ohio Coalition for Homeless v. Husted, 696 F.3d 580, 592 (6th Cir. 2012)
(citing Obama for Am. v. Husted, 697 F.3d 423, 428 (6th Cir. 2012)). If, however,
the Court finds that Plaintiffs’ right to vote is burdened, but not “severely”
burdened, the Court analyzes Plaintiffs’ claim under the flexible AndersonBurdick standard.
Under the Anderson-Burdick test,
A court considering a challenge to a state election law must weigh
“the character and magnitude of the asserted injury to the rights
protected by the First and Fourteenth Amendments that the plaintiff
seeks to vindicate” against “the precise interests put forward by the
State as justifications for the burden imposed by its rule,” taking into
consideration “the extent to which those interests make it necessary
to burden the plaintiff’s rights.”
Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson, 460 U.S. at
789). “There is no ‘litmus test’ to separate valid from invalid voting regulations;
courts must weigh the burden on voters against the state’s asserted justifications
and ‘make the ‘hard judgment’ that our adversary system demands.’” Obama for
Am., 697 F.3d at 429 (quoting Crawford v. Marion Cty. Election Bd., 553 U.S.
181, 190 (2008) (Stevens, J., announcing the judgment of the Court)). “However
slight that burden may appear . . . it must be justified by relevant and legitimate

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state interests ‘sufficiently weighty to justify the limitation.’” Crawford, 533 U.S. at
191 (citation omitted).
a. Burden on the Right to Vote
Under the Anderson-Burdick test, the Court must first “consider the
character and magnitude of the asserted injury to the rights protected by the First
and Fourteenth Amendments that the plaintiff seeks to vindicate.” Anderson, 460
U.S. at 789.
Plaintiffs allege that H.B. 197 provides insufficient time to effectively
conduct voting in Ohio. In support, they point to Secretary LaRose’s own
statements to the Ohio General Assembly, which advocated for a June 2, 2020
deadline. See Secretary LaRose Letter to Legislatures, dated March 21, 2020,
Am. Compl. ¶ 44, ECF No. 5.
Plaintiffs also allege that the process for extending voting primarily through
absentee ballots is unnecessarily complicated and cumbersome, thereby
disenfranchising or discouraging voters from participating. For example, H.B.
197 requires eligible voters to correctly fill out an absentee ballot application
(either by printing it out or writing it down on some sort of paper); mail it to their
local board of elections using their own stamps and envelopes; wait for their
application to be processed; receive their ballot in the mail; fill the ballot out
correctly; and mail the ballot back so that it is postmarked by April 27, 2020. All
of this must take place for millions of Ohio voters.

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Plaintiffs contend that this process in this tight timeframe “leaves no room
for delay” because there may not be time to correct any errors in the applications
in time to postmark absentee ballots by April 27, 2020, if the initial absentee
ballot application requests are denied. Further, they argue, the length of this
process could be compounded by delays at the post office or restrictions in place
because of the COVID-19 pandemic, resulting in some voters being unable to
postmark their ballots in time to be counted. Plaintiffs also argue that the mail-in
only option burdens voters’ rights to vote, especially those who are economically
disadvantaged, by requiring voters to access a printer to print off the official ballot
request form 12 and to obtain postage for the absentee ballot request.
Additionally, Plaintiffs allege that the in-person voting options provided for in H.B.
197 are insufficient and too narrowly drawn, thereby disenfranchising voters who
are unable to complete the absentee ballot process or who would otherwise
prefer to vote in person. Plaintiffs argue that all of the above-described aspects
of H.B. 197 make it a severe burden on the right to vote.
The Court finds H.B. 197 does not impose a severe burden on the right to
vote. First, voters had various opportunities to vote, both by mail and in person,
prior to late March 16, 2020, when the polls were closed.
Second, under H.B. 197, certain voters can still vote in person on April 28,
2020.

12

As noted just above and again, infra, voters need not possess a printer to request an
absentee ballot.

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Third, all voters who have not yet voted and who cannot vote in person on
April 28, 2020, can still vote by requesting and submitting a mail-in ballot.
Plaintiffs contend that the deadline for doing so, and the requirements of printing
out the ballot request form and obtaining proper postage to submit the ballot
request, unduly burden the right to vote.
The Court recognizes that due to the current COVID-19 pandemic, which
has required many places of business (including libraries and other places where
Plaintiffs may wish to print a ballot request form) to close, voters may face a
difficulty submitting the ballot request form. But, Secretary LaRose has already
taken steps to make submission as easy as possible by, for example, permitting
voters to submit a ballot request on any piece of paper containing the required
information instead of requiring voters to submit the official ballot request form.
Further, voters can request the absentee ballot application by calling their county
board of elections.
The requirement that voters affix a stamp to their ballot application is no
more than a minimal burden as stamps are available at multiple locations that
remain open during the Governor’s stay-at-home order, including grocery stores.
Those who do not wish to leave their homes to purchase stamps can purchase
them online. And, contrary to Plaintiffs’ assertion, Secretary LaRose’s mailing of
informative postcards does not cause any delay—voters need not wait to receive
the postcard; they are free to begin requesting their absentee ballots prior to
receiving that postcard.
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Still, given that H.B. 197 sets the voting deadline at April 28, 2020, the bill
creates a tight deadline to accomplish the proper request and submission of a
ballot. The Court therefore concludes that H.B. 197 creates, at most, a modest
burden on the right to vote and will be analyzed under the Anderson-Burdick
framework. It is not a severe burden subject to strict scrutiny.
b. The State’s Interests
The Court agrees with Defendant and Intervenor Defendants that the
State’s interests outweigh the burdens caused by the generally applicable,
nondiscriminatory procedures laid out in H.B. 197.
Certainly, the State has an interest in curbing the global COVID-19
pandemic. The prohibition of gatherings of large amounts of people is central to
the President’s guidelines on social distancing that are effective until April 30,
2020, and the Governor’s stay-at-home order for the State of Ohio, which has
been extended to May 1, 2020. Accordingly, the State has a strong interest in
limiting in-person voting during this period of crisis. Limiting in-person voting to
only those who are disabled or unable to receive mail is a justifiable burden on
the rights of those who would otherwise prefer to vote in person 13 but can vote by
mail when weighed against the State’s interest in preventing its hospitals from

13

The Court also notes the inconsistency between Plaintiffs arguing, on the one hand,
that the inability to vote in person is an unconstitutional burden on their right to vote and,
on the other, that some voters will be unconstitutionally burdened by having to
potentially expose themselves or their family members to the virus at a post office in
order to obtain postage to mail an absentee ballot application.
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exceeding critical capacity and preventing as many illnesses and deaths from
COVID-19 as possible. It also prohibits the disenfranchisement of persons who
are categorically unable to vote by mail due to disability or the inability to receive
mail.
Further, Secretary LaRose, the State of Ohio, and ODP have adequately
explained the justifications for requiring voters to submit an application for an
absentee ballot rather than mailing out ballots directly to voters. As Secretary
LaRose explained, he is required by law to properly verify a voter’s identity and a
voter’s signature—whether submitted absentee by mail, early in-person, or at the
polls on election day—as part of that verification process. LaRose Resp. 22,
ECF No. 44 (citing R.C. 3505.18; 3509.03(B)(5)). Thus, allowing a person to
request an absentee ballot over the phone or online without an accompanying
signature undermines that important voter verification safeguard. Id.
Moreover, this is a primary election, and voters in Ohio can only vote in
one primary. If voters did not request a particular ballot, they would not be able
to register with one of the political parties. Moreover, Secretary LaRose would
have to mail up to four separate ballots to every voter. 14 It would require a
massive undertaking to print and mail so many ballots to voters, not to mention
the confusion it would cause given that voters are only allowed to submit one of

14

The Court agrees with the State of Ohio’s footnote 10—Ohio’s primary requires
different mechanics than the states Plaintiffs seek to emulate.

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the ballots. 15 Mailing up to four ballots to each voter would inevitably result in the
disenfranchisement of some voters who would erroneously return more than one
ballot and not have their vote counted at all. Given how easy Secretary LaRose
is making it to request an absentee ballot (the ability to request it online or via
phone, the ability to send multiple ballot requests within the same envelope, and
not requiring the request to be on the official form), the State’s interest in sending
only one ballot to each voter outweighs any burden that requesting the ballot 16
imposes on voters.
Furthermore, the State of Ohio argues that H.B. 197’s postcard process is
more efficient and streamlined than the process outlined in Secretary LaRose’s
Letter to the Legislature and, thus, is manageable. See State of Ohio Resp. 19–
20, ECF No. 52; see also Secretary LaRose Resp. 26–27, ECF No. 44 and
Grandjean Dec., ECF No. 44-2 (explaining why mailing an absentee ballot
application to each registered voter in time for the April 28, 2020 deadline is
unworkable). Indeed, Secretary LaRose’s response indicates that he will be able
to carry out the process established by H.B. 197 and, conversely, contends that

15

Plaintiffs’ arguments are inconsistent. They argue both that sending four separate
ballots will not confuse voters, while arguing elsewhere that having to fill out an
absentee ballot request as a well as a ballot will confuse voters.
16 ODP argues the Court should require Secretary LaRose to include a ballot request
form at the bottom of the postcard that H.B. 197 requires him to mail out. ODP’s
suggestion was filed on April 1, 2020, after the Court was informed on the March 31,
2020, teleconference that the postcards were already being printed. It is simply not
feasible to grant ODP’s requested relief as the postcards have already been printed and
requiring a reprint would, among other difficulties, cause additional delay on an already
tight timeline.
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all of Plaintiffs’ requested relief is unworkable. 17 See Secretary LaRose Resp.
10, 19–25, ECF No. 44; Grandjean Dec., ECF No. 44-2.
The compressed timeframe for the completion of absentee voting does
pose a burden on voters. Those who request the ballot by mail will have to wait
for their request to reach the county board of elections, then wait for the ballot to
be mailed back to and reach the voter, and then, the voter must fill out the ballot
and have it postmarked in time to be counted. Any delay on the part of the voter,
county board of elections, or the postal service could result in the voter’s ballot
not being counted.
Nonetheless, at the time the State enacted H.B. 197, this timeframe was
justified, and it remains so. Secretary LaRose had advocated for a June 2, 2020
voting deadline, but ODP requested April 28, 2020, specifically to permit it to
send delegates to the Democratic National Convention (“DNC”). ODP made the
same argument in favor of the April 28, 2020 deadline in this litigation before the
DNC delayed its convention on April 2, 2020. Similarly, LPO argued that voting
must conclude by May 12, 2020, in order for LPO to send delegates to its
national convention. RPO likewise argued against extending the voting deadline.
And, ODP has informed the Court that the delay of the DNC does not change

17

Further, the Court notes that in Secretary LaRose’s letter to the Ohio General
Assembly, in which he advocated for a June 2, 2020 voting deadline, he explained that
he could not complete his proposed plan earlier than June 2, 2020. But his proposed
plan was different than H.B. 197.

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ODP’s position on this matter because the delay does not impact the rules or
deadlines for certifying state party delegations.
The State of Ohio certainly has an interest in concluding voting early
enough to permit the major political parties to send delegates to their national
conventions, and this interest outweighs the burden that the tight timeframe
imposes on Ohio voters. ODP has explained that, notwithstanding the fact that
the DNC has been rescheduled, there remains a deadline of June 20, 2020, for
state parties to certify to the DNC’s Secretary the state party’s delegation to the
convention. ODP requires that the election be at least eight weeks prior to that
June 20, 2020 deadline in order to meet the same.
The fact that other states have afforded more voting opportunities to their
voters, in this case by extending their primaries until June 2020 in response to
the COVID-19 pandemic, is not persuasive evidence undermining Ohio’s interest
in concluding voting by April 28, 2020. There is no evidence regarding whether
the political parties in those other states have adopted delegate selection plans
like ODP’s that require approximately eight weeks of post-primary actions, nor is
it at all clear whether ODP could have a different delegate selection plan
approved in order to accommodate a later deadline for submitting absentee
ballots while still meeting the June 20, 2020 DNC certification deadline.
LPO and RPO offer similar arguments in support of concluding voting
quickly, and the Court finds them equally applicable to the State of Ohio’s interest
in having the deadline on April 28, 2020, notwithstanding the DNC’s change in
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date. In particular, the Court rejects LPO’s supplemental argument that the Court
no longer needs to keep the April 28, 2020, deadline but should establish a
deadline by May 12, 2020. LPO did not address DPO’s argument that the
certification deadline has not changed for the DNC.
Finally, given the upheaval that the change to the voting process has
already created, the Court agrees that the State has a strong interest in
minimizing disorder and easing the burdens on county boards of elections. By
permitting the boards of elections to continue to use the absentee-balloting
system already in place and changing only the deadline for accepting those
ballots, H.B. 197 furthers that interest. State of Ohio Resp. 15, ECF No. 52
(citing Mays v. LaRose, No. 19-4112, 2020 U.S. App. LEXIS, at ** 18–21 (6th Cir.
Mar. 3, 2020).
Plaintiffs cite to Fla. Dem. Party v. Scott, 215 F. Supp. 3d 1250 (N.D. Fla.
2016) and Ga. Coal. for the People’s Agenda, Inc. v. Deal, 214 F. Supp. 3d 1344
(S.D. Ga. 2016) to support their argument that “federal courts have moved similar
election deadlines that were rendered burdensome by emergencies.” Mot. 18,
ECF No. 4. Those cases do not persuade the Court that Plaintiffs in this case
are entitled to relief.
In Scott, the timing of a hurricane created an emergency that resulted in
over a hundred thousand people who were likely to register in the final week of
voter registration being evacuated. 215 F. Supp. 3d at 1257. This left those
voters “foreclosed from the only methods of registering to vote.” Id. The court in
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Scott found that this created a severe burden on the right to vote because some
people were unable to register, and, therefore, “categorically” denied the right to
vote. Id. There is no such categorical denial of the right to vote here. Plaintiffs
have alleged that there could be timing or logistical issues that make voting more
challenging than it might otherwise be, but there is not even an allegation of a
broad, categorical denial of the right to vote.
Deal provides very little in the way of persuasive authority. 18 That case
also dealt with a mandatory evacuation caused by a hurricane. 214 F. Supp. 3d
at 1345. This resulted in the local board of elections office being closed for the
last few days of the registration window. Id. Despite this, the state declined to
extend the registration deadline. Id. The court noted that it “harbor[ed]
significant reservations concerning the ultimate merits of Plaintiffs’ claims” but
nevertheless concluded that they had established a sufficient likelihood of
success on the merits to warrant injunctive relief. Id. The court did not reference
Anderson-Burdick, opine on the level of the burden on the plaintiffs’ voting rights,
or engage in a detailed analysis of why the state’s interest was insufficient to
outweigh that burden.
In sum, the Court finds that the State of Ohio’s interests outweigh the
burden on voting rights caused by H.B. 197’s various relevant provisions such

18

This is perfectly understandable considering the court there was facing an emergency
situation and issued an opinion the same day oral argument was held.
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that H.B. 197 is not an unconstitutional burden on the right to vote in violation of
the Fourth and Fourteenth Amendments to the United States Constitution.
3. Poll Tax
LPO, in one sentence of its motion, suggests that H.B. 197 is an
“impermissible poll tax in violation of the Twenty-Fourth Amendment and the
Fourteenth Amendment Equal Protection Clause.” 19 LPO Mot. for TRO 10, ECF
No. 31 (citing Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966)).
LPO did not attempt to develop this argument, and neither Defendant responded
to it. Nevertheless, the Court has considered the issue and finds that, to the
extent obtaining a stamp is a “restriction on the right to vote,” it is not “unrelated
to voter qualifications.” See Crawford v. Marion Cty. Election Bd., 553 U.S. 181,
189 (2008). Instead, it is the type of “evenhanded restriction[] that protect[s] the
integrity and reliability of the electoral process itself” that satisfies Harper. See
id. at 189–90 (quoting Anderson, 460 U.S. at 788, n.9); see LaRose Resp. 22,
ECF No. 44 (citing R.C. 3505.18; 3509.03(B)(5) (explaining that a signature is
needed to protect against voter fraud).
B. Irreparable Harm
If Plaintiffs are correct that some people will be unable to have their votes
counted because of the voting procedures laid out in H.B. 197, the harm they
would suffer would be irreparable. However, this alleged harm is speculative and

19

LPO’s lack of development of its poll tax argument is not rescued by its more detailed
reply (after Defendants did not even address LPO’s motion).
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is outweighed by the other three factors the Court considers when ruling on the
motion for a temporary restraining order.
C. Harm to Third Parties
As shown by Intervenors’ motions, Plaintiffs’ request to postpone the
deadline for voting in the March 17, 2020 primary yet again could cause harm to
both LPO and ODP. LPO contends that it will be prevented from participating at
its convention if voting does not conclude by, at the latest, May 12, 2020. ODP
argues that it could be prevented from participating in the DNC if voting is
extended beyond the currently scheduled date of April 28, 2020. Accordingly,
the Court finds that at least some of Plaintiffs’ requested relief would cause harm
to third parties.
D. Public Interest
The public has an interest in a free and fair election. The public also has
an interest in avoiding further voter confusion. Because Plaintiffs are unlikely to
succeed on the merits of their claims and because further changes to the election
procedure could cause significant additional voter confusion, the Court finds that
the public interest factor weighs against granting Plaintiffs their requested relief.
The Supreme Court has cautioned that “[c]ourt orders affecting elections,
especially conflicting orders, can themselves result in voter confusion and
consequent incentive to remain away from the polls. As an election draws
closer, that risk will increase.” Purcell v. Gonzalez, 549 U.S. 1, 4–5 (2006) (per
curiam). The Sixth Circuit has previously found that “the difficulty in altering the
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ballot printing and distribution at this late date . . . weighs heavily against an
injunction.” Estill v. Cool, 295 F. App’x 25, 27 (6th Cir. 2008) (ballot printing and
distribution was scheduled to begin the day after the Sixth Circuit issued its
opinion, nineteen days after this Court denied the motion for a preliminary
injunction); see also SEIU Local 1 v. Husted, 698 F.3d 341, 345 (6th Cir. 2012)
(“As a general rule, last-minute injunctions changing election procedures are
strongly disfavored.” citing Purcell, supra). Accordingly, the Court finds that the
public interest in the election proceeding as determined by the Ohio Legislature
in H.B. 197 weighs against granting Plaintiffs’ requested relief.
IV.

CONCLUSION

The Constitution does not require the best plan, just a lawful one. As is
apparent from the briefing in this lawsuit, every group has a different idea of what
the best plan would be. But the Court will not declare the Ohio Legislature’s
unanimous bill to be unconstitutional simply because other options may have
been better. For the above reasons, Plaintiffs’ motion for a TRO, ECF No. 4, is
DENIED. LPO’s motion for a TRO or preliminary injunction, ECF No. 31, is
likewise DENIED.
IT IS SO ORDERED.

/s/ Michael H. Watson________________
MICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT

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