Case Nos. 12-3224, 12-3266 IN THE UNITED STATES COURT …moritzlaw.osu.edu/electionlaw//litigation/documents/Briefof... · IN THE UNITED STATES COURT OF APPEALS ... Goodson v. Maggi

Case Nos. 12-3224, 12-3266

IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

_____________________________________________________________

TRACIE HUNTER, Committee to Elect Tracie M. Hunter for Judge Plaintiff – Appellee

NORTHEAST OHIO COALITION FOR THE HOMELESS; OHIO DEMOCRATIC PARTY

Intervenors – Appellees v. HAMILTON COUNTY BOARD OF ELECTIONS, et al.

Defendants-Appellants JOHN WILLIAMS

Intervenor – Appellant

_______________________________________________________________________

Appeal from the United States District Court for the Southern District of Ohio

Case No. 1:10-cv-820

BRIEF OF DEFENDANTS/APPELLANTS HAMILTON COUNTY BOARD OF ELECTIONS, et al.

JOSEPH T. DETERS Hamilton County Prosecuting Attorney James W. Harper Chief Assistant Prosecuting Attorney 230 East Ninth Street, Suite 4000 Cincinnati, Ohio 45202 DDN: (513) 946-3159 Fax: (513) 946-3018 [email protected] Attorney for Defendants/Appellants

Case: 12-3224 Document: 006111336653 Filed: 06/13/2012 Page: 1

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TABLE OF CONTENTS

TABLE OF AUTHORITIES…………………….…………………..…….……………..iv

I. STATEMENT IN SUPPORT OF ORAL ARGUMENT ........................................... 1 II. JURISDICTIONAL STATEMENT ........................................................................... 1 III. STATEMENT OF ISSUES .................................................................................... 1 IV. STATEMENT OF THE CASE............................................................................... 3 V. STATEMENT OF FACTS ......................................................................................... 5

A. Background ............................................................................................................. 5 B. The Count of Provisional Ballots............................................................................ 8 C. Hunter’s Lawsuit and the November 22, 2010 Court Order................................. 11 D. Determinations of Poll Worker Error ................................................................... 16 E. The District Court’s Opinion ................................................................................ 18

VI. SUMMARY OF ARGUMENT ............................................................................ 19 VII. ARGUMENT........................................................................................................ 20

A. Whether the district court erred by ignoring an Ohio Supreme Court holding on the validity of provisional ballots under the guise of equal protection......................... 21 B. Whether the district court abused its discretion under 42 U.S.C.A. § 1983 since the Board acted in a judicial capacity when it reviewed and voted to count or reject ballots............................................................................................................................ 25

1. The Board is entitled to quasi-judicial immunity............................................. 25 2. The district court violated 42 U.S.C.A. § 1983 in awarding injunctive relief against the Board when no exception was present.................................................... 26

C. Whether the district court erred in holding that Plaintiffs have standing ............. 28 1. Plaintiff Tracie Hunter lacks standing .............................................................. 28 2. Plaintiffs/Intervenors NEOCH and ODP lack standing.................................... 29

D. Whether the district court improperly shifted the burden of proof to the Board by requiring the Board to disprove poll worker error ........................................................ 34 E. Whether the district court correctly held that the Board violated equal protection by giving unequal treatment to certain ballots because the Board did not count ballots (the 269), which Ohio law specifically prohibited, while the Board counted other ballots which at the time were not interdicted by Ohio law ......................................... 35

1. The district court erred in not following Painter.............................................. 35 2. The Board’s decision to count the 31 Ballots was not arbitrary ....................... 36 3. The evidence of poll worker error as to the 31 ballots is not the same as to the 269 ballots................................................................................................................. 39 4. The district court’s opinion violates the presumption of poll worker regularity 41

F. The district court erred in holding that intent is not required for Equal Protection violations....................................................................................................................... 44 G. The appropriate remedy to solve the alleged equal protection is to uncount the 31 ballots............................................................................................................................ 47 H. Whether the district court abused its discretion in ordering the Board to count the correct location, wrong precinct ballots after the Board’s investigation was complete and the Board’s vote was taken .................................................................................... 49


iii

I. Whether the district court abused its discretion by remedying the counting of some illegal ballots by ordering the Board to count other illegal ballots ..................... 50 J. Whether the district court abused its discretion by ordering the Board to count “disputed” ballots, that three members of the Board have not voted to count, contrary to Ohio law.................................................................................................................... 53 K. Whether the district court denied the Board the benefit of Eleventh Amendment immunity ....................................................................................................................... 54

1. The Board of Elections Did Not Engage In Conduct Sufficient To Constitute a Waiver of Eleventh Amendment Immunity.............................................................. 55 2. The Ex Parte Young Exception Is Not Applicable ........................................... 56

VIII. CONCLUSION..................................................................................................... 59

CERTIFICATE OF COMPLIANCE……………………………………………………30

CERTIFICATE OF SERVICE……………………………………..…………………....31

DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS……………….32


iv

TABLE OF AUTHORITIES

CASES

Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985)………………56

Blonder-Tongue Laboratories, Inc. v. University Foundation, 402 U.S. 313 (1971)……………………………………………………..30

Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135 (1892)……………………22

Brown v. Cassens Transport Co., 675 F.3d 946 (6th Cir. 2012)………….29 Brooks v. State Board of Elections, 848 F.Supp. 1548 (S.D. Ga. 1994)……………………………………….32

Bush v. Gore, 531 U.S. 98 (2000)………………….… 17, 24, 32, 33, 46,49

Bush v. Rauch, 38 F.3d 842 (6th Cir. 1994)…………………………….25

Butz v. Economou, 438 U.S. 478 (1978)………………………………25,26

Cady v. Arenac County, 574 F.3d 334 (6th Cir. 2009)…………………….56

Carten v. Kent State Univ., 282 F.3d 391 (6th Cir.2002)………………….57

Clark v. Barnard, 108 U.S. 436 (1883)…………………………………..55

Coyne v. American Tobacco Co., 183 F.3d 488 (6th Cir. 1999)………..34

Crawford v. Marion County Election Bd, 553 U.S. 181 (U.S. 2008)…………………………………………22, 29, 45

Curry v. Baker, 802 F.2d 1302 (11th Cir. 1986)………………………….23

Ernst v. Rising, 427 F.3d 351 (6th Cir.2005)…………………………….57

Ernst v. Roberts, 379 F.3d 373 (6th Cir. 2004)……………………………57

Ex Parte Young, 209 U.S. 123 (1908)…………………………54, 57, 58, 59

Gamza v. Aguirre, 619 F.2d 449 (5th Cir. 1980)…………………...………44

Gjersten v. Board of Election Comm'rs,


v

791 F.2d 472 (7th Cir.1986)…………………………………………50, 51

Gold v. Feinberg, 101 F3d 796 (2d Cir. 1996)……………………………51

Goodson v. Maggi, 797 F.Supp.2d 587 (W.D.Pa. 2011)………………….58

Green v. Mansour, 474 U.S. 64 (1985)…………………………………..57

Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1978)…………………………..51

Hansberry v. Lee, 311 U.S. 32 (1940)……………………………………..30

Hunter v. Hamilton County Bd. of Elections, 635 F.3d 219 (6th Cir. 2011).. 5, 23, 26, 28, 39, 43, 45, 47, 48, 55

Hutchison v. Miller, 797 F.2d 1279 (4th Cir. 1986)…………………...……44

Johnson v. Granholm, 662 F.2d 449 (6th Cir. 1981)………………………25

King Lincoln Bronzeville Neighborhood Association v. Husted, 2012 WL 395030………………………………………………………….58

Lapides v. Board of Regents of University System of Georgia, 535 U.S. 613 (2002)………………………………………………………55

League of Women Voters of Ohio v. Brunner, 548 F.3d 463 (6th Cir. 2008)…………………………………………..51, 55

Local No. 93, Intern. Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501 (1986)………………………………………………………….…………..27

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)………………………28

McDonald v. Board of Election Com'rs of Chicago, 394 U.S. 802 (1969)…………………………………………………..……22

Miller v. City of Cincinnati, 622 F.3d 524 (6th Cir. 2010)…………..……..28

Nader v. Blackwell, 545 F.3d 459 (6th Cir. 2008)…………………………28

Northeast Ohio Coalition for the Homeless v. Brunner, No. 2:06-CV-896 (S.D. Ohio)……………………………………..……7, 30

Oregon v. Mitchell, 400 U.S. 112 (1970)…………………………..……22


vi

Papasan v. Allain, 478 U.S 265 (1986)…………………………………..58

762 Parklane Hosiery Co., v. Shore, 439 U.S. 322 (1979)……………….30

Pettingill v. Putnam County R-1 School Dist., 472 F.2d 121 (8th Cir.1973)……………………………………………………………….44

Postal Service v. Gregory, 534 U.S. 1 (2001)……………………………..34

Powell v. Power, 436 F.2d 84 (2d Cir. 1970)…………………………44, 51

Quern v. Jordan, 440 U.S. 332 (1979)……………………………………..57

Rivera-Powell v. New York City Bd. of Elections, 470 F.3d 458 (2d Cir. 2006)………………………………………………..45

Roe v. State of Alabama, 68 F.3d 404 (11th Cir. 1995)……..……………...44

S & M Brands, Inc. v. Cooper, 527 F.3d 500 (6th Cir. 2008)……………55

S.J. v. Hamilton County, 374 F.3d 416 (6th Cir. 2004)…………………….55

Sandusky County Democratic Party v. Blackwell, 387 F.3d 565 (6th Cir. 2004)………………………………………………6, 22, 29, 37, 50

Secretary of Labor, U.S. Dept. of Labor v. 3Re.com, Inc., 317 F.3d 534 (6th Cir.2003)………………………………………………..20

Snowden v. Hughes, 321 U.S. 1 (1944)……………………………….……46

State ex rel. Byrd v. Summit Cty. Bd. of Elections, 65 Ohio St.2d 40 (1981)……………………………………………………23

State ex rel. Painter et al v. Brunner, 128 Ohio St. 3d 17…...…4, 14, 15, 22, 31, 35, 42, 44, 49, 50

State ex rel. Stoll v. Logan Cty. Bd. of Elections, 117 Ohio St.3d 76 (2008)…………………………………………………..50

Stemler v. City of Florence, 126 F.3d 856 (6th Cir.1997)………………..34

Union Pacific R. Co. v. Louisiana Public Service Com'n, 662 F.3d 336 (5th Cir. 2011)…………………………………………….56


vii

United States v. Armstrong, 517 U.S. 456 (1996)……………………….34

Vallejo v. City of Tucson, 2009 WL 1835115, (D. Ariz.)…………………22

Warf v. Board of Elections of Green County, Ky., 619 F.3d 553 (6th Cir. 2010)………………………………………………21

Washington v. Davis, 426 U.S. 229, 248 (1976)…………………………..45

Whitfield v. Tennessee, 639 F.3d 253 (6th Cir. 2011)………………………57

Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100 (1969)………………………………………………………30

Zessar v. Keith, 536 F.3d 788 (7th Cir. 2008)………………………………51


1

I. STATEMENT IN SUPPORT OF ORAL ARGUMENT

Hamilton County Board of Elections and its Board members Timothy Burke,

Alex Triantafilou, Charles Gerhardt, and Caleb Faux (hereinafter “Board”)

respectfully request oral argument on all issues presented herein pursuant to Fed.

R. App. P. 34(a)(2). Oral argument has been scheduled in this appeal for July 25,

2012.

II. JURISDICTIONAL STATEMENT

This appeal is from a Judgment and Order entered on February 8, 2012

granting a declaratory judgment and permanent injunction under 42 U.S.C.A. §

1983 for violations of equal protection by the Board with respect to the Board’s

review and counting of certain provisional ballots in the November 2010 election

for Hamilton County Juvenile Court Judge. (RE #199, Judgment and Order.)

Plaintiffs/Appellees claimed the district court had jurisdiction over this case under

28 U.S.C. §§ 1331, 1343. The Board filed its notice of appeal in Appeal No. 12-

3224 on February 22, 2012. (RE #201, Notice of Appeal.) Appeal No. 12-2344 has

been consolidated with Appeal No. 12-3266 filed by Intervenor/Defendant John

Williams. This Court has jurisdiction under 28 U.S.C. § 1291.

III. STATEMENT OF ISSUES

The Board raises the following issues:

1. Whether the district court erred by ignoring an Ohio Supreme Court holding

on the validity of provisional ballots under the guise of equal protection;


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2. Whether the district court abused its discretion under 42 U.S.C.A. § 1983

since the Board acted in a judicial capacity when it reviewed and voted to count or

reject ballots;

3. Whether the district court erred in holding that Plaintiffs have standing;

4. Whether the district court improperly shifted the burden of proof to the

Board by requiring the Board to disprove poll worker error;

5. Whether the district court correctly held that the Board violated equal

protection by giving unequal treatment to certain ballots because the Board did not

count ballots (the 269), which Ohio law specifically prohibited, while the Board

counted other ballots which at the time were not interdicted by Ohio law;

6. The district court erred in holding that intent is not required for Equal

Protection violations;

7. The appropriate remedy to solve the alleged equal protection is to uncount

the 31 ballots;

8. Whether the district court abused its discretion in ordering the Board to

count the correct location, wrong precinct ballots after the Board’s investigation

was complete and the Board’s vote was taken;

9. Whether the district court abused its discretion by remedying the counting of

some illegal ballots by ordering the Board to count other illegal ballots;


3

10. Whether the district court abused its discretion by ordering the Board to

count “disputed” ballots, that three members of the Board have not voted to count,

contrary to Ohio law; and,

11. Whether the district court denied the Board the benefit of Eleventh

Amendment immunity.

IV. STATEMENT OF THE CASE

The election for Hamilton County Juvenile Court Judge was held by the

Board on November 2, 2010. (RE #1, Hunter Complaint.) After all ballots were

counted, only 23 ballots separated the two judicial candidates, Tracie Hunter and

John Williams. (Id.) At issue is the Board’s treatment of different categories of

provisional ballots. (Id.)

On November 22, 2010, the district court issued a mandatory preliminary

injunction ordering the Board to investigate “whether poll worker error contributed

to the rejection” of 849 provisional ballots and to “include in the recount of the

race for Hamilton County Juvenile Court Judge any provisional ballots improperly

cast for reasons attributable to poll worker error.” (RE #13, Order 11/22/10.)

Accordingly, the Board commenced questioning poll workers, either in person or

in writing, pursuant to directives of Ohio Secretary of State Brunner to determine

whether poll worker error caused any provisional ballots to be cast in the wrong

precinct. Appellant Williams then filed a mandamus action in the Ohio Supreme


4

Court challenging directives of Secretary Brunner. State ex rel. Painter v. Brunner,

128 Ohio St. 3d 17 (2011). On December 28, 2010, the Board then voted to count

9 ballots because they were actually correct precinct ballots and 7 ballots cast in

the wrong precinct due to poll worker error. Thereafter, Secretary Brunner ordered

the Board to count an additional 149 provisional ballots cast in the correct polling

location, but wrong precinct. The Supreme Court rescinded the directives of

Secretary Brunner and ordered the Board to review the provisional ballots using

the same standards it originally employed prior to this litigation. Id.

Appellee Hunter filed an emergency motion to enforce the district court’s

November 22, 2010 Order and enjoin the Board from complying with a directive

of the newly installed Ohio Secretary of State Husted. (RE #38, Emergency

Motion to Enforce Preliminary Injunction.) On January 12, 2011, the district court,

relying solely on a motion submitted by Plaintiff Hunter and without further

hearing, issued a second mandatory injunction: 1) ordering the Board to count

certain provisional ballots contrary to the decision of the Ohio Supreme Court in

Painter; 2) ordering the Board not to follow a lawfully issued directive of the Ohio

Secretary of State; and 3) ordering the Board to investigate additional ballots that

were not subject to the district court’s November 22 Order. (RE #39, Order

1/12/11.) The Board and Appellant Williams appealed. (RE #46, Williams Notice

of Appeal; RE #48, Board Notice of Appeal.)


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This Court reversed in part the January 12, 2011 Order and remanded this

case to the district court to “direct the Board how to proceed regarding the 9 ballots

unanimously determined by the Board to have been cast in the correct precinct, the

7 ballots unanimously determined by the Board to have been miscast because of

poll-worker error, the 269 ballots cast in the correct location but wrong precinct in

which the determination of poll-worker error remains disputed, and, pursuant to the

NEOCH Consent Decree, the NEOCH ballots.” Hunter v. Hamilton County Bd. of

Elections, 635 F.3d 219 (6th Cir. 2011); (RE #50, Order).

A three week permanent injunction hearing was held in July of 2011 on the

merits. (RE #117-176, Hr’g. Proceedings.) On February 8, 2012, the district court

issued a permanent injunction: (1) enjoining the Board from rejecting otherwise

valid provisional ballots that were cast in the correct location, but wrong precinct;

(2) enjoining the Board from rejecting the 9 ballots unanimously determined to

have been cast in the correct precinct and the 7 ballots unanimously determined by

the Board to have been miscast because of poll worker error; and (3) enjoining the

Board from rejecting the correct location, wrong precinct NEOCH ballots. (RE

#199, Judgment and Order.) The Board and Williams timely appealed. (RE #201,

Board Notice of Appeal; RE #204, Williams Notice of Appeal.)

V. STATEMENT OF FACTS

A. Background


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Provisional ballots are used when the eligibility of a prospective voter

cannot be determined when they request a regular ballot. R.C. 3505.181(A).

Provisional ballots permit the eligibility of the voter to be determined after the vote

has been cast; if elections officials applying Ohio law determine that the voter is

qualified to vote and has properly cast his ballot, the ballot is counted. R.C.

3505.183. Provisional ballots have been required in federal elections since the Help

America Vote Act was enacted in 2002. 42 U.S.C.A. § 25482.

In Ohio, the validity of provisional ballots is determined by boards of

elections following Election Day, but prior to the completion of the official canvas.

(RE #199, Judgment and Order, p. 9.) None of the provisional ballots is opened or

counted until the eligibility of all provisional ballots have been determined. R.C.

3505.183(D).

Ohio’s provisional balloting system has been the subject of state and federal

litigation. See e.g. Sandusky Cnty. Democratic Party v. Blackwell, 387 F.3d 565

(6th Cir. 2004). One controversial aspect of the system began on April 19, 2010,

when then-Secretary Brunner entered into a Consent Decree with then-Plaintiffs

NEOCH and ODP. The Consent Decree provides that voters lacking proper

identification “will not be deprived of their fundamental right to vote because of

failures of poll workers to follow Ohio law. For purposes of this Decree poll

worker error will not be presumed, but must be demonstrated through evidence.”


7

(RE #8-1, NEOCH Consent Decree, pp.8-13.) Notably, the Ohio General

Assembly did not authorize Secretary Brunner to enter into the Consent Decree.

(DX1038.)

The Consent Decree made three significant changes to Ohio law. First, Ohio

law did not previously permit provisional ballots cast in the wrong precinct to be

opened or counted under any circumstance. R.C. 3505.183. (RE #120, 122, Hr’g

Tr., Burke, pp. 1-177 ln 17-25, 1-179 ln 16-18, 2-41 ln 4-12, 2-43, ln 17-24; RE

#117, 171, Hr’g Tr., Krisel, pp.1-48, ln 7-9, 11-201 ln 6-12, 11-202 ln 7-17, 11-

205 ln 21 – 11-206 ln 3.) Second, Ohio law did not previously permit provisional

ballots containing incomplete affirmations to be opened or counted. R.C. 3505.183.

(RE #162, Hr’g Tr., Faux, p. 9-233 ln 3-8; RE # 171, Hr’g Tr., Krisel, p. 11-202 ln

18-23.) Third, there was previously no exception to the provisional ballot validity

determination required in R.C 3505.183 for poll worker error. (RE # 122, Hr’g Tr.,

Burke, p. 2-44 ln 4-8; RE #175, Hr’g Tr., Triantafilou, pp. 12-139 ln 22, 12-140 ln

6, 12-141 ln 18-20.) As a result of these changes, the Consent Decree makes

exceptions to Ohio law for some voters and not others. (PX 2008; RE #171, Hr’g

Tr., Krisel, p. 11-202 ln 7-10.)1

1 The validity of the NEOCH Consent Decree is currently being challenged in the case of Northeast Ohio Coalition for the Homeless v. Husted, Case No. 2:06-cv-00896.


8

Against this background, Ohio’s General Election was held on November 2,

2010. Over 290,000 ballots were cast in Hamilton County.2 (JX21.) The candidates

for Juvenile Court Judge were John Williams and Tracie Hunter. On election night,

the Board counted substantially all ballots that had been cast by absentee voters

and on Election Day (RE #56, Board Answer, ¶8; RE # 120, Hr’g Tr., Krisel, p. 1-

193 ln 21-23), and reported unofficial results that showed Mr. Williams received

112,359 votes and Ms. Hunter received 109,512 votes. (RE #56, Board Answer,

¶7l; DX1048.) This count did not include over 10,500 provisional ballots yet to be

reviewed by the Board. (RE #56, Board Answer, ¶8.)

B. The Count of Provisional Ballots

To cast a provisional ballot the voter must complete an affirmation that

indicates that they are both a registered voter in the precinct in which the ballot is

cast and that they are eligible to vote in the election. R.C. 3505.182. (JX1.)

Provisional voters must also sign an affirmation statement on the provisional ballot

envelope under penalty of election falsification that their statements are “true and

correct,” and that they understand the reasons for which their vote will not be

counted. R.C. 3505.182. (JX1.) The Board reviews each of these ballots, and any

2 For the November 2, 2010 Election, Hamilton County had 680 precincts and 438 polling locations. Out of those 438 polling locations, 169 locations were multiple precinct voting locations. (DX1007; DX1008; RE # 117, Hr’g Tr., Krisel, p. 1-32 ln 13.)


9

valid ones are included in the official canvass, to be completed by November 23,

2010. R.C. 3505.32. (DX1000.)

As part of its official canvass, the Board assigned bi-partisan teams to

determine the eligibility of all provisional ballots using the standards in Directive

2010-74, issued by then-Secretary Jennifer Brunner. (JX34; RE #150, Hr’g Tr.,

Poland, p. 7-259 ln 5-14; RE #138, Hr’g Tr., Poland, pp, 5-96, 5-98; RE #120,

Hr’g Tr., Burke, p. 1-192 ln 9-11.) The teams followed Ohio law and Secretary

Brunner’s instructions for classifying provisional ballots, placing them into one of

twelve categories. (JX5; JX34; RE #138, 150, Hr’g Tr., Poland, pp. 5-96-108, 7-

214 ln 14-16, 7-265-298; RE #176, Hr’g Tr., Triantafilou, p. 12-234-235; RE #120,

122, Hr’g Tr., Burke, pp. 1-177 ln 17-20, 1-179 ln 7-18, 2-43 ln 17-24.) If one of

the two “ID provided” boxes on the provisional envelope was checked, the Board

determined that acceptable ID had been provided. The same standards were

applied to all provisional ballots, including those subject to the NEOCH Consent

Decree. (RE #150, Hr’g Tr., Poland, p. 7-296 – 297.)

The initial verification was followed by a review of provisional ballots

subject to the Consent Decree. Bi-partisan teams separated out the wrong precinct

envelopes that used the last four digits of the voter’s Social Security Number as

identification, and determined which envelopes were cast in the correct location.

(RE #138, Hr’g Tr., Poland, pp. 5-108 ln 16, 5-109 ln 4.) The teams reviewed the


10

notes pages from both signature poll books to determine whether poll workers

made indications regarding Consent Decree ballots. If so, they made copies and

designated the envelope for further review by the Board. (RE #138, Hr’g Tr.,

Poland, p. 5-111 ln 7-21.) Prior to November 16, no NEOCH provisional ballot

needing further review had been identified by any bi-partisan team. (RE #138,

Hr’g Tr., Poland, p. 5-111.)

All of the provisional ballots were presented to the Board for review and

decision on November 16. (JX28; RE #118, Hr’g Tr., Krisel, p. 1-86 ln 20-25.)

The Board unanimously voted not to count 8503 provisional ballots cast in the

wrong precinct that were invalid under Ohio law.4 (JX28, p. 40; RE #122, Hr’g Tr.,

Burke, p. 2-70 ln 20-23; RE #175, Hr’g Tr., Triantafilou, p. 12-147 ln 10-13.)

Twenty-seven voters who cast ballots at the Board’s offices were presented

with the wrong ballot by board staff. (JX28.) The Board accepted these ballots for

counting after consulting with counsel, reasoning that this specific staff error was

facially obvious, avoidable and could be corrected. (Id.)

Four other provisional ballots cast at the Board’s offices were approved for

counting on November 16 because the envelopes contained a ballot from a

3 One provisional voter cast two provisional ballots. Therefore, there were 850 wrong precinct provisional ballots cast by 849 provisional voters. (JX32, p. 2.) 4 The Board voted according to the categories established by Secretary Brunner. (Id.) For this reason, the Board voted on the validity of all wrong precinct ballots as a group and not on provisional ballots cast in the wrong precinct, but correct location as a particular sub-set of all wrong precinct ballots. (Id.)


11

different precinct than the correct precinct that appeared on the face of the

envelope. (JX32, p. 00003; Re #118, Hr’g Tr., Krisel, p. 1-90 ln 21-23.)

The Board voted to count 686 provisional ballots because the ballot

envelope stated that the voter had provided appropriate identification, despite the

fact that the poll worker also checked the box on the envelope requiring the voter

to provide additional information. (JX28, p. 27; RE #150, Hr’g Tr., Poland, p. 7-

263 -7-264; JX34, pg. 000003.) The Board also voted to count 10 ballots even

though the voter did not sign the provisional envelope because it was evident from

the ballot envelope that the voter should not have been made to vote provisionally

at all. (JX28, p. 71; RE #150, Hr’g Tr., Poland, p. 7-296.)

On November 19, the Board met to approve ballot remakes, including the 27

and 4 ballots cast at the Board’s offices. (JX32.) The Board also conducted the

official count, which included all ballots approved for counting to date. (JX32, p.

4; JX21, p. 9; RE #118, Hr’g Tr., Krisel, p. 1-99 ln 1-7.) The official results

reported Mr. Williams defeated Ms. Hunter by 23 votes. (JX21, p. 9; DX1048;

Hr’g Tr., Krisel, p. 1-99, ln 8-14.)

C. Hunter’s Lawsuit and the November 22, 2010 Court Order

On November 21, Ms. Hunter filed this lawsuit alleging that the Board

violated the equal protection and due process rights of Ohio voters. (RE #1,

Complaint.) The district court held a hearing on November 22 and issued an order


12

“commanding [the Board] to investigate whether provisional ballots cast in the

correct polling location but in the wrong precinct were improperly cast because of

poll worker error,” and to “begin an investigation into whether poll worker error

contributed to the rejection of the 849 provisional ballots now in issue and include

[such ballots] in the recount . . . .” (RE #13, Order 11/22/10, p. 9.)

In response to the court order, a series of conflicting Directives and

Advisories were issued by then-Secretary Brunner. The first, Directive 2010-79

(JX35) limited the investigation to ballots covered by the Consent Decree. The

next two, Dir. 2010-80 and Adv. 2010-08, were issued over the next several weeks.

(JX36; RE #118, Hr’g Tr., Krisel, p. 1-106-107.) (JX44.) These expanded the

scope of the investigation to all of the ballots cast in the wrong precinct at the

general election, instructed the Board to “conduct a thorough and efficient

investigation,” established investigation procedures and criteria for determining

poll worker error. (Id.)

Following Directive 2010-79 (JX35), Board staff found 28 NEOCH ballots,

but none of these was eligible to be counted. Later, on December 9, the Board

directed staff to review the 849 wrong precinct provisional ballots for non-poll-

worker errors. The Board voted and tied on whether to count 269 provisional

ballots cast in the correct polling location, but wrong precinct. (JX3, pp. 36-40; RE

#118, Hr’g Tr., Krisel, p. 1-104.)


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On December 11, following the issuance of Directive 2010-80 the Board

unanimously voted to subpoena all poll workers, employees and observers from

polling locations where a wrong precinct ballot was cast – 2,204 individuals.

(JX30, pp. 00053-00055; RE #120, Hr’g Tr., Burke, p. 1-186 ln 1-7; RE #175,

Hr’g Tr., Triantafilou, p. 12-158-160 RE #118, Hr’g Tr., Krisel, p. 1- 115 ln 1-10.)

The first set of poll-worker subpoenas were issued on the 13th. The Board asked

Secretary Brunner on how to proceed with questioning. (RE #118, Hr’g Tr., Krisel,

p. 1-117 ln 18-25.) Advisory 2010-08, provided guidance for conducting the

investigation, and granted permission to mail a questionnaire in lieu of a subpoena.

(JX44.)

On December 16 and 17, the Board commenced five sessions of questioning

poll workers. The Board questioned a total of 71 poll workers. (JX22-26.) When it

became evident that the investigation ordered by then-Secretary Brunner could not

be completed before the end of her term on January 9, 2011, the Secretary issued

Dir. 2010-87 instructing the Board to abandon its investigation and to resolve all

issues in an expedited manner over the holiday season. On December 21, the Board

confirmed that it would no longer interview all employees, instead sending

questionnaires to only poll workers who worked at the precincts at issue. (JX47;

JX30, p. 000079; RE #118, Hr’g Tr., Krisel, pp. 1-121 ln 17-21, 1-122.)


14

The Board fully complied with the court’s order, reviewing 71 poll worker

interviews, 830 questionnaires postmarked by the December 23, and all relevant

Election Day documents. (JX22-26; RE #118, Hr’g Tr., Krisel, p. 1-125-126; RE

#175, 176, Hr’g Tr., Triantafilou, pp. 12-157-165, 12-239-249.) The Board

completed its investigation on December 28th as ordered by Secretary Brunner.

The Board unanimously determined that there was no evidence of poll worker

error with respect to the 565 ballots cast in the wrong location and voted not to

approve them. The Board unanimously voted to approve for counting 9 ballots that

were found to have been voted in the correct precinct and 7 wrong precinct ballots

for which the Board found evidence of poll worker error. The Board tied on

whether to count 269 provisional ballots cast in the correct polling location, but

wrong precinct. (JX27; DX1018; RE #175, Hr’g Tr., Triantafilou, p. 12-165-167;

RE #118, Hr’g Tr., Krisel, p. 1-128-129; JX48.) Position statements were sent to

Secretary Brunner regarding the tie vote. The statement of Board Members Faux

and Burke argued that the Board should count 56% of the 269 correct location,

wrong precinct ballots based upon a statistical analysis that presumed poll worker

error, performed by Board Member Faux. (JX48, pp. 00008-00009 (Faux

analysis).)

Meanwhile, Defendant Williams filed for a writ of mandamus in the Ohio

Supreme Court in the case of Painter, 128 Ohio St.3d 17. On January 7, 2011, the


15

Ohio Supreme Court issued the writ, ordering the Board to review the disputed

provisional ballots using only the same procedures and information applied prior to

November 16 and ordered the Secretary of State to rescind Directives 2010-80 and

2010-87. (RE #175, Hr’g Tr., Triantafilou, p. 12-168 ln 11-15.) Later that day,

Secretary Brunner issued Directive 2011-02 rescinding Directives 2010-80 and

2010-87 (JX39) and sent a Tie Vote Letter to the Board which voted against

counting the 269 ballots cast in the wrong precinct. (JX46; RE #175, Hr’g Tr.,

Triantafilou, p, 12-167 ln 6-13.) Secretary Brunner then, without any tie vote from

the Board on these ballots, issued Directive 2011-03, which ordered the Board to

count 56%, or 149, of the remaining wrong precinct, correct location provisional

ballots. (JX40; RE #175, Hr’g Tr., Triantafilou, p, 12-167 ln 14-20; RE #169, Hr’g

Tr., Faux, p. 11-45 ln 10-18.)

The following Monday, however, newly-elected John Husted took office as

Secretary of State and issued Directive 2011-04, which superseded Directive 2011-

03, and directed the Board to comply with Painter that the Board must conduct its

investigation using the same procedures as it did before November 16 and

determine that the “850 ballots cast in the wrong precinct are, according to Ohio

statutes, invalid and should not be counted.” (JX41.)

Plaintiffs responded by filing a Motion to Enforce the Preliminary Injunction

(RE #20), which the district court granted in part without a hearing. (RE #39,


16

Order 1/12/11.) The Order enjoined the Board from complying with Directive

2011-04 and ordered that the Board count 149 ballots under Directive 2011-03, as

well as the 7 ballots and the 9 ballots on which the Board was in agreement. (Id.)

The Board appealed. (RE #48, Notice of Appeal.)

On January 28, 2011, this Court issued a decision vacating the portion of the

district court’s January 12 Order directing the Board to count the 149, the 7 and the

9 ballots; vacating as moot the portion of the district court’s January 12 Order

enjoining the Board from complying with Directive 2011-04; and affirming the

district court’s January 12 Order that the Board investigate all NEOCH ballots.

(RE #50, Order of USCA.) Defendants petitioned for a rehearing en banc (Doc.

006110868130) and a writ for certiorari with the Supreme Court; both were denied.

The district court held a full hearing on the merits from July 18 through

August 8, 2011. (RE #116-176, Transcripts of Proceedings.) During the course of

the proceedings, testimony was taken from three members of the Board, three

employees of the Board, an expert witness appearing on behalf of the Board,

seventeen voters, and fifty poll workers, and several thousand pages of

documentary evidence were also produced. (Id.)

D. Determinations of Poll Worker Error

The evidence developed at the hearing is recounted in the district court’s

opinion. (RE# 199, Judgment and Order, pp. 7-29.) Provisional voters appearing at


17

the Board’s offices gave Board staff their name and address, which was then used

to determine the voter’s precinct, which the staff member wrote upon the

provisional envelope. (Id.) The provisional envelope is completed by the voter and

Board staff. (Id.) A ballot is retrieved solely by Board staff and given to the voter

for completion. (Id., pp. 17-18.)

The process for precinct voting on Election Day is vastly different. Precinct

locations are staffed from four to six workers with both a “presiding” and a

“deputy presiding” judge. All poll workers and judges are trained. (Id., p. 14.)

Every precinct has a copy of the Comprehensive Manual detailing election

procedure and each poll worker receives a condensed version.

Despite the training received, the evidence demonstrates that on Election

Day 2010 some mistakes were made by poll workers. Some poll workers relied on

other workers to do tasks required of them, in some cases permitted voters to vote

provisionally in violation of law and policy, failed to direct some voters to the

correct precinct, failed to warn some provisional voters that their vote might not

count, and made some mistakes in looking up voter addresses. (Id., p. 18-22.) Even

so, most of the poll workers processing provisional ballots believed the voter was

voting in the correct precinct, and would have directed the voter elsewhere had

they known differently. (Id., p. 19.) The district court describes the precinct voting

process as “chaotic,” which is hard to reconcile with the fact that fewer than one-


18

tenth of one percent of all voters cast a ballot in the wrong precinct while at the

right multiple precinct polling location.

E. The District Court’s Opinion

On February 8, 2012, the district court issued its opinion from the trial of

July and August, 2011, enjoining the Board from: 1) rejecting otherwise valid

provisional ballots cast in the correct location but the wrong precinct; 2) rejecting

the 9 ballots unanimously determined to have been cast in the correct precinct and

the 7 ballots unanimously determined by the Board to have been miscast because

of poll-worker error; and 3) rejecting the correct-location, wrong-precinct NEOCH

ballots. Further, the Board was ordered to remake such ballots, include the ballots

in the pending mandatory recount, and review NEOCH ballots as was required by

the decree. (RE #199, Judgment and Order, p. 92.) The Board (RE #201) and

Defendant Williams (RE #204) appealed.

After the Board’s motions for stay were denied by the district court and this

Court, the Board complied with the district court’s opinion. On April 25, 2012, the

Board reviewed the results of the NEOCH investigation and, finding no evidence

of poll worker error, voted not to count the 10 NEOCH ballots. Next, the Board

voted to count the correct location, wrong precinct ballots and remade them into

the correct precinct. The Board voted upon the remakes and included all ballots

now approved for counting in the mandatory recount. A total of 286 ballots were


19

added to the previous official count. The recount was conducted with guidance

from Secretary Husted. Upon conclusion of the recount, the official count was

amended to show that Tracie Hunter received a total of 115,109 votes and John

Williams received a total of 115,035 votes. This result was certified to Secretary

Husted on May 17, 2012.

VI. SUMMARY OF ARGUMENT

The district court ordered the Board to count certain ballots cast in violation

of state law. In so doing the district court ignored a determinative decision of the

Ohio Supreme Court as well as mandatory provisions of federal law. The counting

of these invalid ballots overturned the result of the election and displaced the

previously certified winning candidate.

The district court based its equal protection decision on the different

treatment accorded to provisional ballots cast at the Board offices and ballots cast

at precinct locations on Election Day. The Board submits that the differences

between the two classes are greater than their similarities and, on balance, the

Board’s different treatment survives any equal protection challenge.

Even if the challenge is well-taken, the court’s choice of remedy – the forced

counting of ballots illegal under state law – was not. States have the primary

responsibility to administer all elections. The Ohio Supreme Court ruled that

ballots cast in the wrong precinct are illegal under Ohio law. HAVA commands


20

that state law shall determine whether a provisional ballot will be opened and

counted.

A voter that cast an illegal ballot is not disenfranchised when that ballot is

not counted and neither the voter nor the candidates have any standing to insist that

the ballot be counted. A candidate for election has no standing to raise an equal

protection violation regarding the inclusion of illegal ballots in the canvass unless

it is demonstrated that inclusion caused specific harm to the candidate.

Organizations and political parties have no standing to raise a federal

challenge to a county election unless they demonstrate that one or more of their

members resided in the county and voted in the election. Nor may such

organizations rely upon a void consent decree.

Finally, as an arm of the state, the Board has immunity under the Eleventh

Amendment for retroactive declaratory and injunctive relief. Such immunity is not

waived by engaging in customary pre-trial activities.

VII. ARGUMENT

Several different standards of review are employed for the granting or denial

of a permanent injunction: factual findings are reviewed under the clearly

erroneous standard, legal conclusions are reviewed de novo, and the scope of

injunctive relief is reviewed for an abuse of discretion. Secretary of Labor, U.S.

Dept. of Labor v. 3Re.com, Inc., 317 F.3d 534, 537 (6th Cir.2003).


21

A. Whether the district court erred by ignoring an Ohio Supreme Court holding on the validity of provisional ballots under the guise of equal protection

The district court has caused a crisis of federalism and forced its way into

this purely local dispute by issuing a ruling that not only effectively overrules an

Ohio Supreme Court decision, but also requires the continual violation of state law

by state actors. (RE #199, Judgment and Order, pp. 74 fn 30, 92.) The district court

disregards Ohio election law stating “[t]he validity of Ohio’s requirement that

persons vote in the precinct of their residence is not an issue” (RE #199, Judgment

and Order, p. 72), and, further, specifically rejects the Ohio Supreme Court’s

conclusions of law regarding the application of Ohio election law. (RE #199,

Judgment and Order, p. 74, fn 30.) Affirming the district court’s holding would

require this Court to allow a federal court to overrule a state supreme court in

determining the proper application of state law. This cannot be permitted.

The district court’s decision would be troubling if this case concerned an

area of law where federal and state authorities are coextensive; but, in a state

election case controlled by state law and authority, the district court’s actions

exceed its power. Since the principles of federalism limit the power of federal

courts to intervene in state elections, Warf v. Bd. of Elections of Green County,

Ky., 619 F.3d 553, 559 (6th Cir. 2010), the district court’s decision must be

overturned.


22

This is an Ohio election governed by Ohio law. The manner of regulating

elections has historically been left to the States. Oregon v. Mitchell, 400 U.S. 112,

124-125 (1970). “Each State has the power to prescribe the qualifications of its

officers and the manner in which they shall be chosen." Boyd v. Nebraska ex rel.

Thayer, 143 U.S. 135, 161 (1892). The methods of voting are not protected as

fundamental rights. See eg. Crawford v. Marion County Election Bd. 553 U.S.

181, 209 (U.S. 2008), Scalia concurring in judgment (“That the State

accommodates some voters by permitting (not requiring) the casting of absentee or

provisional ballots, is an indulgence—not a constitutional imperative that falls

short of what is required.”); McDonald v. Board of Election Com'rs of Chicago,

394 U.S. 802, 807-808 (1969) (Absentee voting statutes do not deny the exercise

of the franchise to other groups who may not vote absentee).

The United States Congress has commanded that the validity of provisional

ballots shall be determined in accordance with state law. 42 U.S.C. § 15482(a)(4).

States enjoy the traditional responsibility to administer elections and Congress did

not intend “that a voter’s eligibility to cast a provisional ballot should exceed her

eligibility to cast a regular ballot.” Sandusky, 387 F.3d at 576.

Under Ohio law, only ballots cast in the correct precinct may be counted as

valid. Painter, 128 Ohio St. 3d at 27; R.C. 3503.01(A), 3505.181(C)(2)(a),

3505.182, 3505.183(B)(4)(a)(ii), 3599.12(A)(1). As required (see 28 U.S.C.A. §


23

1738; Curry v. Baker, 802 F.2d 1302, 1310 (11th Cir. 1986)), the district court

acknowledged that the ballots it has ordered counted violate Ohio law. (RE #13,

Order 11/22/10, p. 7; RE #39, Order 1/12/11, p.10 (“This court is not holding that

ballots cast in a precinct where a voter does not reside must be considered legal

votes”).) The district court avoids reconciling these illegal votes with HAVA’s

clear direction that such votes not be considered. The district court does not even

mention HAVA, which is troubling for several reasons.

First, the primary authority of states to administer elections is not a “bare

fact.”5 The source of this authority is conferred both by the United States

Constitution, and with respect to provisional ballots, by Congress. The ability of a

prospective voter to receive and cast a provisional ballot prior to a determination of

the voter’s eligibility is not constitutionally mandated, but is rather a creature of

statute. Therefore, Congress is free to decide under what circumstances and under

whose authority such ballots are to be opened and counted. Under HAVA, it is a

matter of state law left to state and local election officials. When coupled with the

reverse-preemption language in HAVA, 42 U.S.C. § 15482(a)(4), Ohio’s elaborate

– and exclusive6 – election contest provisions do not run afoul of the Supremacy

Clause, and the use of federal remedies to determine the validity of provisional

5 See Hunter, 635 F.3d at 233. 6 See State ex rel. Byrd v. Summit Cty. Bd. of Elections (1981), 65 Ohio St.2d 40, paragraph one of the syllabus.


24

ballots is precluded. See Brown v. Cassens Transport Co., 675 F.3d 946, 953-955

(6th Cir. 2012).

Second, ignoring HAVA eliminates certain protections built into Ohio’s

statutory provisional voting scheme. In Ohio, no provisional ballot may be opened

or counted in a particular county until the eligibility of all of the provisional ballots

has been determined. R.C. 3505.183(D). This provision ensures impartially.

Determining the eligibility and then counting ballots at different times – as

happened here – enables partisan lawsuits from losing candidates and subjects

courts to criticism that it is only concerned with effecting a certain result.

Finally, HAVA applies one uniform standard to all provisional ballots.

Those that are legally cast by qualified electors in accordance with state law should

be opened and counted. Those that do not meet this standard should not. The

rejection of provisional ballots that do not comport with state law does not

disenfranchise any voter. On the other hand, the inclusion of ballots illegal under

state law disenfranchises the ballots of voters who cast theirs correctly by diluting

the effect of their valid votes. See Bush v. Gore, 531 U.S. 98, 105 (2000) (“The

right of suffrage can be denied by a debasement or dilution of the weight of a

citizen's vote just as effectively as by wholly prohibiting the free exercise of the

franchise.”) The only proper remedy to correct the inclusion of illegal provisional

ballots that have been opened and counted is to remove them from the canvass if


25

they can be identified. If they cannot be identified, candidates may avail

themselves of Ohio’s election contest provisions. This is all the process that any

candidate is due and it is in complete accord with federal law as stated in HAVA.

B. Whether the district court abused its discretion under 42 U.S.C.A. § 1983 since the Board acted in a judicial capacity when it reviewed and voted to count or reject ballots

1. The Board is entitled to quasi-judicial immunity

The Board is granted quasi-judicial immunity from injunctive relief under §

1983 when it performs quasi-judicial functions. 42 U.S.C.A. § 1983. Because §

1983 extends judicial immunity to injunctive relief, the key inquiry is which actors

and functions are entitled to such immunity. See Butz v. Economou, 438 U.S. 478,

511-15 (1978) (holding that judicial immunity can extend to non-judicial officers

performing quasi-judicial functions). The Sixth Circuit follows a functional

approach to immunity, extending judicial immunity to non-judicial officers who

perform quasi-judicial duties. See Bush v. Rauch, 38 F.3d 842, 847 (6th Cir. 1994);

Johnson v. Granholm, 662 F.2d 449, 450 (6th Cir. 1981) (holding that, as general

rule, acts done within the scope of official quasi-judicial duties are entitled to

quasi-judicial immunity).

The Supreme Court held that judicial immunity extends to non-judicial

officers when (1) the contested acts are “functionally comparable” to those taken

by a judge; and (2) public policy requires judicial immunity so the officers can


26

perform their important adjudicatory functions “without harassment or

intimidation.” Butz, 438 U.S. at 511-14. This Court has held that the actions of the

Board were functionally comparable to those taken by a judge, finding the

“Board’s count of provisional ballots is a quasi-‘adjudicatory-type’ action which,

unlike many ‘regulatory-type’ actions, requires review of evidence with respect to

a ballot’s validity.” Hunter, 635 F.3d at 235.

Public policy demands that immunity extend to the adjudicatory functions

performed by the Board. The district court emphasized that the Board’s quasi-

judicial discretion “must be wielded carefully and consistently in order to avoid …

losing the public’s trust in the outcome of elections.” (RE #199, Judgment and

Order, p. 71 n.29.) Thus, the first source of public policy is the need to preserve the

public’s trust in the outcome of elections. A second source is the need to insulate

the Board’s adjudications from partisan pressures. The Ohio Revised Code

epitomizes this, mandating that boards of elections be bipartisan, and even

requiring that the mere handling and storage of provisional ballots be conducted by

bipartisan teams. See R.C 3501.06; R.C 3505.183(A). The Board’s actions are

entitled to judicial immunity both because the Board’s actions are both functionally

comparable to those taken by a judge, and because public policy demands such

immunity.

2. The district court violated 42 U.S.C.A. § 1983 in awarding injunctive relief against the Board when no exception was present


27

The district court erred in its February 8, 2012 Judgment and Order (RE

#199.) in awarding Plaintiffs injunctive relief against the Board who was entitled to

quasi-judicial immunity. “[I]n any action brought against a judicial officer for an

act or omission taken in such officer’s judicial capacity, injunctive relief shall not

be granted.” 42 U.S.C.A. § 1983. There are only two narrow exceptions to this

strict statutory language. Injunctive relief is available if and only if (1) the Board

has violated a declaratory decree; or (2) declaratory relief was unavailable. Id.

It is undisputed that declaratory relief was available, as it was issued. The

other narrow exception, that the district court could have issued injunctive relief if

the Board had violated a declaratory decree, was not present. Not only did the

Board not violate the November 22, 2010 declaratory judgment, it never violated

any court order.7 The district court acknowledged that the Board correctly followed

its order and correctly “[undertook] additional investigation.” (RE #199, Judgment

and Order, p. 79.)

The injunctive relief in the February 8, 2012 decision was granted in

violation of § 1983. Neither narrow exception was available for the court to issue

such relief; declaratory relief was available as it was issued, and the Board did not

violate a declaratory decree. This Court should reverse the district court as it

7 Consent decrees, as voluntary agreements of the parties, do not contain a court’s declarations or findings of law. See e.g. 28 U.S.C.A. § 2201(a); Local No. 93, Intern. Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501, 522 (1986).


28

awarded injunctive relief barred under § 1983 because judicial immunity extends

to the Board’s quasi-judicial functions.

C. Whether the district court erred in holding that Plaintiffs have standing

Challenges based upon standing are reviewed de novo. Miller v. City of

Cincinnati, 622 F.3d 524, 531-532 (6th Cir 2010). A plaintiff has standing if he: (1)

shows a concrete and actual or imminent injury in fact; (2) demonstrates that the

defendant's conduct caused the injury; and (3) shows that it is likely, that a

favorable decision will redress the injury. Id., citing Lujan v. Defenders of Wildlife,

504 U.S. 555, 560–61 (1992). The burden of demonstrating standing is Plaintiffs.

Lujan, 504 U.S. 561.

1. Plaintiff Tracie Hunter lacks standing

Hunter has the burden of proving that she suffered an injury, the cause of the

injury, and how it may be redressed though court action. Nader v. Blackwell, 545

F.3d 459, 471 (6th Cir 2008). Hunter did not meet this burden by seeking, as a

candidate, to have illegal votes counted to overturn a certified election result. See

Hunter, 635 F.3d at 4. Hunter cannot have suffered any injury in fact because

illegal votes are not counted, and the individual voters she claims to represent have

no right to have invalid votes counted.

Hunter must prove that she suffered some real harm from the alleged equal

protection violation. If the violation is in the 31, Hunter must show that counting


29

the 31 votes caused harm. Hunter offered no evidence on this point and unless

more than 23 of these 31 were for her, counting of these ballots had no impact on

the election and was a harmless error. Hunter also failed to offer evidence that she

would have won the election had the 269 votes been counted. For the district court,

Hunter’s standing requirement was met simply because she lost the election - an

impermissibly low burden.

Even if Hunter offered proof that she would have won had some number of

ballots been counted, the proof is irrelevant because illegal ballots may not be

counted. R.C. 3505.183(B)(4)(a)(ii). The only remaining “injury” Hunter can

assert are the claims of the individual voters whose votes were not counted. But

ballots cast at the wrong precinct are invalid under Ohio law. R.C.

3505.183(B)(4)(a)(ii). No voter has a right to have an illegal ballot counted. The

right to vote provisionally is a right conferred by statute and not by constitutional

mandate. Crawford, at 209; HAVA; Sandusky, 387 F.3d at 576. The 269 voters

who cast illegal ballots under Ohio law are not “qualified electors” that may

challenge post–election how their vote is treated and have no right to have their

votes counted. R.C. 3503.01.

2. Plaintiffs/Intervenors NEOCH and ODP lack standing

NEOCH and ODP have no standing because: 1) neither entity identified any

members residing or voting in Hamilton County, nor did they identify any


30

members harmed by the Board’s actions; and 2) neither NEOCH nor the ODP can

rely upon the Consent Decree (RE# 8-1, NEOCH Consent Decree) entered into by

those organizations and then Attorney General Cordray, and then Secretary of

State Brunner.8

The district court’s discussion on standing is silent concerning the presence

or absence of NEOCH and ODP members in Hamilton County, and regarding any

harm that presumed members may have suffered. (RE# 199, Judgment and Order,

pp. 5-6.) Indeed, neither organization claimed to represent the interests of

Hamilton County voters who voted in the November 2, 2010 election. (RE# 180,

Amended Complaint at 3,4, ¶¶ 7-9.) In determining that both NEOCH and ODP

have standing, the district court found only that both organizations have standing to

enforce the Consent Decree. (RE #199, Judgment and Order, pp. 5 -6).

The Consent Decree was journalized on April 19, 2010. (RE #8-1, NEOCH

Consent Decree.) The obligations under the Decree are placed largely on county

boards of elections though none – including the Board – were parties to the

litigation. (Id.) As non–parties, the boards of election are not bound by the Decree.

See Hansberry v. Lee, 311 U.S. 32, 40 (1940); 762 Parklane Hosiery Co., v. Shore,

439 U.S. 322, n.7 (1979); Blonder-Tongue Laboratories, Inc. v. University

8 NEOCH v. Brunner, USDC Southern Dist. Ohio, Case no. 2:06-cv-00896.


31

Foundation, 402 U.S. 313, 328-29 (1971); Zenith Radio Corp. v. Hazeltine

Research, Inc., 395 U.S. 100, 110 (1969).

The Decree was not presented to the General Assembly for approval.

(DX1038, Journals and Resolutions from the 127th General Assembly and 128th

General Assembly of Ohio.) Nor did the General Assembly express its intention to

enter the litigation as a party. (Id.) The only entities acting on behalf of the

defendants were then-Secretary Brunner and then-Attorney General Cordray,

neither of whom have any authority to change Ohio law; only the General

Assembly has that authority. Ohio Const. Art. I, Section 18.9 The ultimate question

is: did the Ohio General Assembly suspend the operation of Ohio election law

pursuant to Article 1, Section 18 of the Ohio Constitution? The General Assembly

can only act to change law in a public meeting.

The Decree manifestly changed Ohio election law with respect to

provisional ballots. The district court found that the Consent Decree did not

“suspend” the operation of Ohio law in violation of the Ohio Constitution, but

instead created an “exception”10 to the law. (RE #199, Judgment and Order, pp. 11-

13.) The district court’s analysis is semantics. An exception to the law suspends

9 The only evidence proved that the Attorney General and Secretary of State acted in derogation of the Ohio Constitution when it entered into the consent decree. (DX1038); Ohio Const. Art. II, Section 1, Art. I, Section 18; (DX1052(D), (E)).

10 Painter held that the Ohio provisional ballot laws contain no exception “for poll worker error.” Painter at 794.


32

and changes the operation of the law. Whether these alterations are regarded as

“suspensions” or “exceptions,”11 the NEOCH court created a non-uniform standard

for determining the validity of provisional ballots with the partisan acquiescence of

the Secretary of State, the Attorney General, ODP, and NEOCH.

At least one other district court had no trouble refusing a consent decree that

was not presented to the state legislature. Brooks v. State Board of Elections, 848

F.Supp. 1548, 1553 (S.D. Ga. 1994). Because the Consent Decree suspended Ohio

law without the consent of Ohio officials with authority to do so, the NEOCH court

had no authority to accept the Decree as its judgment. (RE #191, Motion to

Dismiss Amended Complaint, p. 6 and authorities cited.)

Finally, the Consent Decree is in derogation of Bush, which held that equal

protection and due process require that states must have adequate standards for

determining what constitutes a legal vote and must have practicable procedures to

implement such standards. Bush, 531 U.S. at 110. Having granted the right to vote

on equal terms, a state may not “by later arbitrary and disparate treatment, value

one person’s vote over that of another.” Id. at 104-105. Procedures adopted by the

state must be consistent with the obligation to avoid arbitrary and disparate

treatment of the members of the electorate. See Id. at 105.

11 There is no legal or linguistic justification for the court’s rhetorical gymnastics. Whether it is a “suspension” or an “exception”, the effect is the same: the voter identification and provisional ballot laws are not being applied evenly to all voters as some are receiving preferential investigation and treatment.


33

The Consent Decree fails each of these requirements. First, it separates

voters arbitrarily based upon the form of identification that they produce. Those

who choose to present the last four digits of their social security number will have

their provisional ballots investigated, and perhaps counted, even though the ballot

was cast illegally in an incorrect precinct. Those voters presenting some form of

valid identification pursuant to Ohio’s voter identification law will not have their

ballots counted if cast in the wrong precinct. This is clearly special consideration

for some voters and not others. Second, the Consent Decree values some votes

differently because of the amorphous concept of “poll–worker error,” which never

has been part of Ohio election law. Third, as this case demonstrates, time and

resource limitations prevent the Board from conducting exhaustive and repetitive

reviews of provisional ballots. Having mini-trials regarding each provisional ballot

in question prior to completing the official canvass is expensive and impracticable.

Because the standards included within the Consent Decree are not uniform

in their application, result in unequal treatment of voters casting provisional

ballots, and cannot be practicably enforced, they run afoul of the commands of

Bush and should not to be applied.

Finally, as parties asserting federal jurisdiction, the burden is on both

NEOCH and ODP to prove that the Consent Decree is valid and does not suspend


34

Ohio law. Coyne v. American Tobacco Co., 183 F.3d 488, 494 (6th Cir. 1999),

Neither NEOCH nor ODP have met their burden and have no standing.

D. Whether the district court improperly shifted the burden of proof to the Board by requiring the Board to disprove poll worker error

The district court misapplied federal and state law when it reversed the

presumption that Ohio election officials have performed their job in a regular and

lawful manner. See Painter, 128 Ohio St.3d at 22 “[i]n the absence of evidence to

the contrary, public officers, administration officers and public authorities, within

the limits of jurisdiction conferred upon them by law, will be presumed to have

properly performed their duties in regular and lawful manner…” The same

presumption that public officials have “properly discharged their official duties” is

also established federal law. See Bracy v. Gramley, 520 U.S. 899, 909 (1997)

(requiring plaintiff to present clear evidence to over come “strong presumption that

the state actors have properly discharged their official duties”); Stemler v. City of

Florence, 126 F.3d 856, 873 (6th Cir.1997); United States v. Armstrong, 517 U.S.

456, 464 (1996); Postal Service v. Gregory, 534 U.S. 1, 10 (2001).

The district court’s ruling flips this presumption requiring the Board to

demonstrate reasons why it performed its duties correctly. (RE #199, Judgment

and Order, p. 40.) The district court applies the same inverse presumption in

analyzing the board’s decision to count provisional ballots. (RE #199, Judgment


35

and Order, p. 70 fn 30.) The burden was shifted to Defendants to prove that poll

workers did their jobs correctly.

The burden should have been on the Plaintiffs to demonstrate both that the

poll workers committed an error, and that sufficient evidence of error was

presented to the Board prior to its November 16, 2010 vote. The evidence from the

trial demonstrated that most poll workers had no recollection of what happened on

Election Day. (RE# 188-1, Defendants Findings of Fact and Conclusions of Law,

Table 1 at Column “PW Did Not Remember Voter or Circumstances”.) Foggy

recollections do not support an inference that poll workers did not do their jobs.

(RE #199, Judgment and Order, p. 80 fn 31.)12

E. Whether the district court correctly held that the Board violated equal protection by giving unequal treatment to certain ballots because the Board did not count ballots (the 269), which Ohio law specifically prohibited, while the Board counted other ballots which at the time were not interdicted by Ohio law

1. The district court erred in not following Painter

The Ohio Supreme Court in Painter resolved the equal protection issue in

two ways. First, the court ruled that any ballot cast outside the correct precinct on

Election Day is not to be counted regardless of poll worker error. Painter, 128

Ohio St.3d at 17, 27. Second, the Painter court ruled that if a provisional ballot is

12 The district court stated that it did not need this additional information to reach its conclusion, however the court did note that this evidence supported the conclusion that poll worker error had been established. (RE #199, Judgment and Order, p. 80 fn 31.)


36

to be counted based upon a finding of poll worker error, the investigation into such

error must be equal as to all ballots. Id. at 29-30. Had the district court ordered the

Board to investigate all provisional ballots equally based upon the standards set

forth in Painter, only 9 additional ballots would have been counted. Because the

Board reviewed poll books, help-line records, and the provisional ballot envelopes

in investigating poll worker error as to some ballots, Painter held that any later

investigation of poll worker error must be limited to only that evidence. The two

rulings ensure that equal treatment will be given to all Ohio voters.

2. The Board’s decision to count the 31 Ballots was not arbitrary

The district court’s equal protection analysis misapprehends why the Board

counted the 31, but did not count the 849 or the 269. The district court’s equal

protection analysis assumes that the provisional ballots cast at the wrong precinct

on election day (the 849 or the 269) have the same legal defect as the ballots cast at

the Board’s office on or before election day (the 31); namely, that both sets of

voters used the wrong ballots. The district court further presumes, incorrectly, that

the Board considered whether poll worker error caused the use of the wrong ballot.

The Board voted unanimously not to count the 849 because they were cast in the

wrong precinct contrary to Ohio law. R.C. 3505.181; R.C. 3505.183. Poll worker


37

error was not relevant to that decision.13 And, unlike the 849, the Board had

discretion to remake and count the 31 ballots. Contrary to the district court’s

presumption, there was no Ohio law in November 2010 against remaking and

counting the 31 ballots. Thus, there was a big difference at the time between the

two sets of ballots—one was illegal and the other was not. For that reason, the

Board believed in November 2010 that it was free to correct the error its staff alone

had made with the 31 ballots. Thus, the Board’s actions were not arbitrary or

unreasonable, but based upon the fact that the 849 and 269 were illegal ballots

when the Board rejected them while the 31 were not known to be illegal,

particularly if remade.

In addition, by remaking the 31, the Board could correct the error its staff

alone had caused. That is not true of the 849 or 269. The Board could not correct

the problem caused by voting in the wrong precinct. The reason for the precinct

voting requirement is not simply to ensure that the correct ballot is used. See

Sandusky, 387 F.3d at 569. The precinct voting requirement, for example, also

relates to preventing voter fraud. The Board had to reject ballots cast in the wrong

precinct.

13 Counsel advised the Board that if the voter “voted [in] the wrong precinct” the ballots “are not eligible to be counted . . . .” and that “it would take an act of the legislature to change that.” (JX28, p. 37.)


38

The district court stated that the Board made a “snap decision that there was

no demonstrated poll-worker error as to the [849] wrong-precinct ballots.” (Id. at

78) The Board made no such decision, much less a “snap” decision. The Board

voted not to count the 849 ballots because they were cast in the wrong precinct.

Poll worker error was irrelevant. The problem with the 31 ballots was that the

voters had been given and then voted with the wrong ballots. That was a different

problem than the one with the 849 or the 269.

Voters who went to the polls on Election Day also have a different set of

obligations than voters who vote at the Board’s offices. In the case of the 849

provisional ballots cast at the wrong precinct, it is the voters obligation to know

their precinct number, to go to that precinct and to vote only in that precinct on

Election Day; the voters of the 31 ballots at the staff’s office had no such

obligation as they were not voting at a precinct on Election Day. See R.C.

3503.16(B)(2)(a). The district court’s analysis ignores this key difference, which

justifies treating the ballots differently.

The Board also treated the 27 or 31 ballots differently than the 849 or 269

ballots because Board staff and legal counsel recommended and advised the Board

to count the 27 or 31 ballots and not to count the 849 or 269 ballots. Therefore, the

Board acted rationally in voting to not count the 849 or 269 because they were

expressly illegal under Ohio and because Board staff and counsel had advised them


39

not to count the ballots. At the same time, the Board voted to count the 27 or 31

ballots because they were not known to be illegal at the time and Board staff and

counsel recommended and advised the Board to count those ballots.

3. The evidence of poll worker error as to the 31 ballots is not the same as to the 269 ballots

This Court stated that the evidence of poll-worker error related to the 269

ballots “is substantially similar to the location evidence considered by the Board

with respect to the” 27 ballots cast at the Board’s offices. Hunter, 635 F.3d at 237.

The district court held that the Board had an opportunity to, but had failed to

present, “persuasive rationales” for its decision to “consider location evidence as to

the wrong-precinct provisional ballots cast at its office but not those cast at polling

locations.” (RE #199, Judgment and Order, p. 68.)

The above points only have merit if the evidence of Board staff error as to

the 31 ballots is essentially the same as the evidence of poll worker error as to the

269 ballots. That, however, is not true. The problem with the 31 ballots was solely

and obviously caused by Board staff. The Board was not told that the voters may

have caused the problem by giving the Board staff the wrong address. The correct

address for the voter was on each ballot envelope. The Board asked its staff how

the wrong ballots could possibly have been given to the voter, and the Board was

told that the only way that this could have occurred was that the staff input the

wrong address and/or selected the wrong ballots by mistake. (JX28, pp. 40-44.)


40

Thus, we know that the staff made an error with the 31 ballots. That is not an

inference. There is direct evidence of this because the wrong ballot for the 31

voters at issue was in each voter’s envelope. Mr. Mallory, Assistant Administrator,

stated that the staff “looked up the wrong precinct or pulled the wrong ballot.” (JX

28, p. 43.) On the other hand, there is no such direct evidence of poll worker error

with regard to the 849 or the 269 ballots (if the only evidence consulted is the

ballot envelopes, help line records and poll books). There, all we know for certain,

except for a handful of cases (which is based upon evidence adduced subsequent to

November 22, 2010), is that the voter voted in the wrong precinct. Except in a very

few cases, there is no direct evidence that any poll workers gave incorrect

information to any of the voters of the 269 ballots.

There is a crucial and dispositive distinction between the voters of the 269

ballots and the voters of the 31 ballots: the 269 voters took themselves erroneously

to the wrong precinct and the 31 voters made no errors but were given the wrong

ballots by Board staff. There is no evidence that the voters of the 31 ballots gave

Board staff the wrong address, and there was no way for the Board to determine if

that had occurred.

Furthermore, there are many reasons why voters who went to the right

building to vote may have nevertheless voted in the wrong precinct. The voter may

have decided to vote at the precinct they had always voted in based upon a prior


41

residence address that was not in the same precinct as their new address. (RE #140,

Hr’g Tr., Ornelas, p. 5-142; RE #142, Hr’g Tr., Joiner, p. 6-30.) The voter could

have received a card in the mail from another organization informing them to vote

in the incorrect precinct. (RE #130, Hr’g Tr., Chapman, p. 3-202 – 203.) The voter

may not have been given their correct precinct by any poll workers because each

poll worker believed that another worker had already looked up the voter’s address

and given the voter their correct precinct. (RE #122, Hr’g Tr., Horton, p. 2-15; RE

#128, Hr’g Tr., Lynem, p. 3-120.) The voter could have moved before the election

and never bothered to update their registration, thus never getting an updated

precinct card from the Board. (RE #159, Hr’g Tr., Niestheide, p. 9-259.) The voter

may have voted in the wrong precinct even though the poll worker may have told

her “she was in the wrong place.” (RE #130, Hr’g Tr., Burton, p. 3-217.) Those are

just some of the possible reasons why a voter who went to the right building ended

up voting in the wrong precinct and none require poll worker error. Likewise,

none of those reasons for voting in the wrong precinct by the 269 voters has any

application to the 31 ballots.

4. The district court’s opinion violates the presumption of poll worker regularity

The district court’s holding, contrary to the binding Ohio law of poll workers

regularity, is that the Board presumed poll worker error as to the 31 ballots and not

as to the 269. (RE #199, p. 77.) If that is true, the proper solution is to command


42

that the Board follow Ohio law by not presuming poll worker error as to any of the

ballots. That would have been a consistent, uniform standard, and unlike the rule

adopted by the district court, would have been consistent with binding Ohio law. In

other words, neither set of ballots should be counted based upon an illegal

presumption under Ohio law. The district court cannot waive the presumption of

regularity by simply declaring that it was not used for one set of ballots and

therefore may not be used for another as well.14 If this were true, the court’s equal

protection analysis justifies illegality, which has never been the law.

The district court could have ordered the Board to investigate the 849 ballots

as well as the 31 and to count them only if poll worker error were found without

presuming poll worker error. That, in essence, is what the court did in its

November 22, 2010 Order. And the Board complied with that order, investigated

the ballots and voted to count those ballots where error was found. Now the district

court says that its order was not necessary to “support a conclusion that equal

protection demanded that the Board consider right-location, wrong precinct ballots

on the same terms as ballots cast at the Board office.” (Id. at 79.) While the Board

14 The district court compounded its legal errors when it asserted that it “disagrees with Painter’s subsequent conclusion that the evidence available to the Board in November 2010 was insufficient to demonstrate poll worker error with respect to” the 269 ballots. (Id. at 79, fn. 30.) Painter held that the evidence of poll worker error was insufficient to overcome the presumption of poll-worker regularity. Painter at 32. Yet it is exactly this same evidence which the district court now relies upon to order the counting of the 269 ballots. When Painter ruled that the evidence the Board considered was insufficient, that ruling was binding.


43

believes that there was never any equal protection violation, the district court

cannot ignore that the Board complied with the court’s November 22, 2010 order

and thus resolved the equal protection issue. This Court opined that what the Board

did subsequent to the November 22, 2010 order complied with the law. Hunter, at

241. The district court cannot go back on what it originally ordered and the

remedial steps taken by the Board which in fact and law rectified the issues the

district court originally raised.

The district court dismisses the Board’s suggestion that voters of the 269

ballots may have orally given poll workers the wrong address by mistake. Instead,

the district court posits that the same error could have been made with the 31

ballots proving the similarity in how both sets of ballots should be treated. (RE

#199, Judgment and Order, pp. 76-77.) The district court’s point illustrates why

neither set of ballots should be counted as voter error both could have caused the

269 voters to go to the wrong precinct and Board staff to give the 31 voters the

wrong ballots. If the Ohio presumption of poll worker regularity means that the

Board should have concluded that the 31 ballots were not selected by Board staff

in error unless the Board was given evidence from the ballot envelopes or staff

notes proving that the voter did not give staff the wrong address orally, then these

ballots should be uncounted. The 31 ballots can be identified and uncounted. The

court cannot claim that (1) the quality of the evidence to overcome the presumption


44

of regularity is irrelevant or (2) whether the burden of overcoming the presumption

of poll worker regularity has been met is irrelevant as to the counting of the 269

ballots because of the counting of the 31 ballots. The reason for this is simple: if

the district court’s point is accurate, it also concedes the opposite – that the

evidence is such that neither set of ballots should be counted. That result is

preferable because it means no illegal ballots are counted, all ballots are treated

equally and Painter and the law of Ohio are followed.15

F. The district court erred in holding that intent is not required for Equal Protection violations

The actions of the Hamilton County Board of Elections raise no equal

protection violations because there was no intent to discriminate, and the Board

was simply mistaken in their understanding of Ohio election law as it related to the

Consent Decree and provisional voting. See, e.g., Roe v. State of Alabama, 68

F.3d 404, 407-09 (11th Cir. 1995); Vallejo v. City of Tucson, 2009 WL 1835115,

(D. Ariz.); Burke v. Paquotank County Board of Elections, 2010 WL 883017 (E.D.

N.C.); Hutchison v. Miller, 797 F.2d 1279, 1283 (4th Cir. 1986); Powell v. Power,

436 F.2d 84, 88 (2d Cir. 1970); Pettingill v. Putnam County R-1 School Dist., 472

F.2d 121(8th Cir.1973); Gamza v. Aguirre, 619 F.2d 449, 453 (5th Cir. 1980)

15 Painter ruled that the evidence related to the 269 ballots is insufficient to overcome the Ohio presumption of poll worker error regularity and suggested the same as to the 31 ballots. Painter, 128 Ohio St.3d at 32.


45

This Court stated that intent was no longer a requisite element of an equal

protection claim in the election context because of Bush v. Gore. Hunter, 635 F.3d

at 234, n. 13. Bush is inapplicable because any extension of Bush is counter to the

intentions of the Supreme Court. Bush, 531 U.S. at 109 (“Our consideration is

limited to the present circumstances . . . .”). Legal scholars disagree about whether

this language limits the decision in Bush to the specific facts of that case. See e.g.

Daniel H. Lowenstein, The Meaning of Bush v. Gore, 68 OH. ST. L. J. 1007, 1016-

1017 (2007). Bush also may be limited to situations where officials “with the

power to assure uniformity” in election law decisions violate the equal protection

clause when they require state action that they know, or should know, would result

in the unequal treatment of votes. Bush, 531 U.S. at 109. This is why the Court

decided not to address “whether local entities, in the exercise of their expertise,

may develop different systems for implementing elections.” Id.

Subsequent to Bush, several current Justices have also reaffirmed the long-

held position that intent is still required for an equal protection violation.

Crawford, 553 U.S. at 206 (J. Scalia, J. Thomas, J. Alito concurring “A voter

complaining about such a law's effect on him has no valid equal-protection claim

because, without proof of discriminatory intent, a generally applicable law with

disparate impact is not unconstitutional.”(quoting Washington v. Davis, 426 U.S.

229, 248 (1976)); Rivera-Powell v. New York City Bd. of Elections, 470 F.3d 458,


46

470 (2d Cir. 2006) (J. Sotomayor “In order to establish such a constitutional

violation, Rivera-Powell would have to show that the [b]oard intentionally

discriminated against her[.]”).

This Court can hold that Bush had an implied element of intent and therefore

was not a major break from the Court’s jurisprudence.16 Bush involved the action

of the Florida Supreme Court setting up a system to recount votes that would result

in the unequal application of state law, and it can be posited that the court had an

implied intent to create equal protection issues. The Board had no such intent.

Hunter does not have an equal protection claim that applies to her. Unlawful

administration by local officers of a non-discriminatory state law, even which

results in unequal treatment to persons, is not a denial of equal protection unless

there is shown to be an element of intentional discrimination. Snowden v. Hughes,

321 U.S. 1, 8 (1944). Hunter was not singled out for selective treatment, which

even the district court has acknowledged. (RE #39, Order 1/12/11, p. 6.) All ballots

were tabulated on the same basis for both Hunter and Williams. The 31 ballots that

were approved for counting by the Board were treated the same for both

candidates. Likewise, the 849 provisional ballots cast in the wrong precinct at the

general election that were rejected for counting were rejected for both candidates.

16 See Owen R. Wolfe, Is Intent to Discriminate Required in Bush v. Gore Cases?, April 13, 2011, http://moritzlaw.osu.edu/electionlaw/comments/index.php?ID=8263.


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G. The appropriate remedy to solve the alleged equal protection is to uncount the 31 ballots

The equal protection issue found by the district court could have been

effectively and expeditiously resolved by uncounting the 27 (or 31) ballots.

Unfortunately, the district court decided that this was not possible (RE #199,

Judgment and Order, p. 91 fn 40) because of this Court’s original opinion. Hunter,

635 F.3d at 245. However, this Court’s original opinion was tentative for the

following reasons: it was unclear whether ballots similar to the 27 could also be

uncounted; it was unclear whether the 16 ballots voted on at the December 28th

meeting could be uncounted; this Court did not want to stop the district court’s

investigation at the expense of voter’s rights; and this Court did not want to

disenfranchise any voter based solely on the error of state actors. It is now clear

that uncounting the 27 ballots is both an acceptable and preferable remedy.

This Court found the remedy of uncounting the 27 votes “unsatisfactory”

because of concerns that other similar ballots could not be uncounted, and

therefore similarly situated voters would have their votes treated differently. Id.

There are, however, no other such similar provisional ballots that were accepted

due to poll worker error. The additional ballots Hunter identified in her Complaint

were accepted for reasons other than poll worker error. (JX28, pp. 29-36.)

Each provisional envelope examined by the Board of Elections is accepted

based upon uniform standards for acceptable provisional envelopes. Ballot


48

envelopes that do not have a full signature or do not have a full name in the

affirmation are invalid and cannot be counted under Ohio law. R.C. 3505.182.

Ballots of provisional voters that should not have voted provisionally were not

rejected. (JX28, pp. 27, 71.)

This Court also expressed reservation about uncounting the 31 ballots

because of possible equal protection questions that might be raised concerning the

16 ballots approved at the Board’s December 28th meeting. Hunter, 635 F.3d at

245. The 16 ballots have been separately maintained and may in fact be uncounted.

And in any event, the 16 ballots should not prevent this Court from issuing the

appropriate remedy. The only reason that the Board approved the 16 ballots was

because of the district court order. (RE #13, Order 11/22/10.) The district court

cannot order the Board to violate state law and then rely on that order to justify not

correcting state law violations.

A decision to uncount the 31 ballots would not result in the

“disenfranchisement of qualified voters solely on account of known error caused

by a state actor.” Hunter, 635 F.3d at 245. Because the voters cast invalid ballots, a

decision to uncount these ballots does not disenfranchise any voter. Individuals do

not have the right to cast a ballot that is illegal under state law.


49

Uncounting the 31 ballots is the correct resolution to the alleged equal

protection violation because it complies with Painter, does not force the Board to

count illegal ballots, and encourages comity between federal and state courts.

H. Whether the district court abused its discretion in ordering the Board to count the correct location, wrong precinct ballots after the Board’s investigation was complete and the Board’s vote was taken

The Sixth Circuit acknowledged that the Board conducted the investigation

ordered by the district court in November 2010 in accordance with federal law. See

Hunter, 635 F.3d at 30 (“We conclude that the Board’s review has met the

requirements of Bush v. Gore.”) The November 22 Order did not specify how the

Board was to conduct its investigation, leaving it to the Board and the Secretary.

That review was approved by the this Court, which found it was guided by criteria

provided by the Secretary to effectuate the order. Id. At that point, there was no

color of an equal protection issue. Although the Board complied with the district

court’s preliminary injunction, a full merit hearing was held that the district court

later found to be entirely unnecessary. (RE #199, Judgment and Order, p. 80 fn 31)

But, the district court abused its discretion when it undid the vote taken by the

Board, substituted its judgment for the Board’s, and ordered the Board to count the

correct location, wrong precinct ballots the Board had previously voted not to

count.


50

I. Whether the district court abused its discretion by remedying the counting of some illegal ballots by ordering the Board to count other illegal ballots

A provisional ballot is presumed to be invalid until shown otherwise. R.C.

3505.183. There is no exception under Ohio law for counting wrong precinct

ballots. See State ex rel. Stoll v. Logan Cty. Bd. of Elections, 2008-Ohio-333, 117

Ohio St. 3d 76, 82 (the statute contains no exception, and the court cannot add one

to its express language). Being eligible under State law to vote means eligible to

vote in this specific election and in this specific polling precinct. The district court

sidestepped this issue and resolved the election by mandating that 269 illegally cast

provisional ballots be remade and counted. (RE #199, Judgment and Order, p. 92).

This order is unprecedented as it requires the Board to violate state law. R.C.

3505.183(B)(4)(a)(ii); Sandusky, 387 F.3d at 578; Painter, 128 Ohio St. 3d at 27.

This leaves the Board and its members in the untenable position of abiding by the

federal court order and violating state law.

Assuming arguendo that a §1983 violation occurred, the district court chose

the wrong remedy. When determining the most appropriate remedy for election

violations, federal courts must balance the electorate’s interest in their right to vote

with the state’s interest in achieving a fair and efficient election process. Gjersten

v. Bd. of Election Comm'rs, 791 F.2d 472, 478 (7th Cir.1986). The district court’s

remedy is unprecedented and discarded any notion of federalism.


51

Instead of ordering a new election, the district court, relying on Griffin v.

Burns, 570 F.2d 1065, 1079 (1st Cir. 1978), chose to count 269 illegal ballots,

finding it a “less disruptive” remedy. (RE #206, Order Denying Motion to Stay, p.

5, fn1). But Griffin ordered a new election because it agreed that it was

inappropriate to count ballots that a state supreme court had declared invalid.

Griffin, 570 F.2d at 1079. Contrary to Griffin, the district court has chosen to count

illegal ballots.

An election contest under Ohio law would have sufficed. Gold v. Feinberg,

101 F3d 796, 800 (2d Cir. 1996), citing Powell, 436 F2d at 88 (fair state remedies

preclude § 1983 relief for unintended election irregularities). The district court

could have viewed the mistake of counting the 31 ballots as an acceptable garden-

variety election deviation, let the 2010 election stand, and permanently enjoined

the board future violations. League of Women Voters of Ohio v. Brunner, 548 F.3d

463 (6th Cir. 2008) (injunctive relief to safeguard against future abuses of election

law.); Zessar v. Keith, 536 F.3d 788, 791 (7th Cir. 2008). The court also could have

invalidated the election and required a special election. Gjersten, 791 F.2d at 478;

Griffin, 570 F.2d at 1079.

The remedy should have been to remove improperly counted ballots from

the canvass as they may not be counted. R.C. 3505.183(B)(4)(b)(ii). The Board

maintained the 31 ballots in a manner that would allow them to be uncounted and


52

provided the district court with an effective solution to the problem, which would

not result in any constitutional violations. As discussed supra, removing these

ballots is a perfectly acceptable and expeditious remedy, particularly when the

alternative is to require the Board to violate state law.

The order to count the 269 ballots exacerbated the equal protection defect.

The district court reasoned that the Board created an “arbitrary and disparate”

distinction between the votes cast at the Board office and votes cast at the correct

location but wrong precinct. (RE #199, Judgment and Order, p. 72). By ordering

the Board to count the 269 ballots, the district court gave validity to a distinct class

of provisional ballots not recognized under either Ohio law or the Consent Decree.

These 269 ballots were also not originally segregated for review by the Board, but

considered as part of the 849. (RE #1-3, Tr. 11/16/10 Board Mtg.) The court takes

the board to task for “arbitrarily” treating the ballots cast at the Board differently,

yet does the same thing by treating the 269 differently than the rest of the 849. The

Board rejected all of the wrong precinct ballots solely because they were illegal

under Ohio law. (RE #1-3, Tr. 11/26/10 Board Mtg.) Fashioning a remedy to

correct “arbitrary” treatment that is likewise arbitrary is an abuse of discretion.

Finally, the district court abused its discretion by ordering the Board to count

the 9 and 7 ballots found as a result of the court ordered investigation despite the

fact that it found that both the investigation and hearing were unnecessary, and, at


53

the same time, ordering the Board to count the 269, which were previously

rejected.17 (RE #199, Judgment and Order, p. 79). The district court picks and

chooses to tailor a remedy that violates state law, authorizes the counting of invalid

ballots, and ignores its original order and rules that the Board’s vote on the 269

ballots was incorrect. (Id., p. 92.) The district court’s order appears to be concocted

to achieve an election result, not to cure an alleged constitutional violation.

J. Whether the district court abused its discretion by ordering the Board to count “disputed” ballots, that three members of the Board have not voted to count, contrary to Ohio law

The district court abused its discretion in ordering the Board to count the 269

correct location, wrong precinct provisional ballots because the district court’s

order allows the court to violate the mandates of federalism and take traditional

state powers away from the state. Under Ohio law, the responsibility of

determining the validity of provisional ballots rests solely with the boards of

elections. R.C. 3505.183. In order for a provisional ballot to be counted, the ballot

must receive a vote from three of the four board members. R.C. 3505.27. In the

event of a tie vote, the board shall submit the votes in question to the Secretary of

State “who shall summarily decide the question, and the secretary of state’s

17 The Board actually split in a tie-vote on whether or not to count the 269 ballots, so the tie-break decision went to Secretary Brunner. R.C. 3501.11(X). Secretary Brunner, in a final and non-appealable decision, voted not to count the 269 ballots. Directive 2011-03. Therefore, this group of 269 ballots was to be rejected under Ohio law. R.C. 3501.11; R.C. 3505.183(B)(4)(a)(ii).


54

decision shall be final.” R.C. 3501.11(X). Additionally, the tie-breaking vote of the

Secretary of State is final and not subject to appeal. Id.

The district court did not have the power to contradict Secretary Brunner’s

vote against counting the 269 wrong precinct provisional ballots. That decision is

not subject to appeal. R.C. 3501.11. While, the district court expressed some

concern about the validity of Ohio election laws (RE #199, Judgment and Order, p.

46), the constitutionality of Ohio election laws is not before this Court. (RE #199,

Judgment and Order, pp. 86, 92.) Assuming Ohio election laws are valid and

constitutional, the district court is without power to contradict Ohio election law

and mandate that any further investigation be conducted after Secretary Brunner

voted that the 269 provisional ballots were not to be counted. Any order to the

contrary results in a federal court usurping a state election board’s exclusive power

and is a violation of state law.

K. Whether the district court denied the Board the benefit of Eleventh Amendment immunity

The Board “functions as an arm of the state with respect to the review and

counting of provisional ballots . . . under the guidance of the Secretary of State.”

(RE #199, Judgment and Order, p. 8.) The district court further found that the

Board waived its Eleventh Amendment immunity. (Id., pp. 7-10.) Alternatively,

the district court determined that even if the Board did not waive its immunity, the

action could proceed against the individual board members under Ex Parte Young,


55

209 U.S. 123 (1908) (id. at 10, fn. 4), finding that the relief sought by Hunter was

prospective as the Board has yet to certify the election.18 (Id.). These are questions

of constitutional law which this Court reviews de novo. League of Women

Voters, 548 F.3d at 474, citing S & M Brands, Inc. v. Cooper, 527 F.3d 500, 507

(6th Cir. 2008); S.J. v. Hamilton County, 374 F.3d 416, 418 (6th Cir. 2004).

1. The Board of Elections Did Not Engage In Conduct Sufficient To Constitute a Waiver of Eleventh Amendment Immunity

Waiver by conduct in litigation is associated with voluntary acts on the part

of a state, and any “[arm] of the state,” that indicate a conscious choice to proceed

with litigation. See e.g. Clark v. Barnard, 108 U.S. 436, 447 (1883); Lapides v.

Board of Regents of University System of Georgia, 535 U.S. 613, 624 (2002).

There was no voluntary choice on behalf of the Board to submit to the

jurisdiction of the federal forum. On the contrary, the Board – an involuntary

defendant – challenged Hunter’s choice of forum during the hearing on Hunter’s

temporary restraining order. (RE #9, Response, p. 7.) The Board maintained that

there was an absence of subject matter jurisdiction during its first appeal to this

Court. Hunter, 635 F.3d 219, Appellant Brief of Board of Elections. While the

Board initially asserted the absence of jurisdiction for reasons other than the

Eleventh Amendment, it always denied the jurisdiction of the district court. The

18 The official canvass was certified by the Board in 2010 pursuant to the District Court’s Order. (RE #13, Order 11/22/10.)


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Board never invited the district court to enter judgment on the merits and timely

asserted Eleventh Amendment immunity when it filed its motion for summary

judgment prior to the final pre-trial. (RE #94, Motion for Summary Judgment.)

A list of docket entries is not evidence that the Board’s acts are inconsistent

with an assertion of Eleventh Amendment immunity, (RE #199, Judgment and

Order, pp 9-10) and do not constitute an express waiver of immunity. There must

be an “unequivocal and clear declaration” that a waiver is intended. Union Pacific

R. Co. v. Louisiana Public Service Com'n, 662 F.3d 336, 340-342 (5th Cir., 2011),

citing Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 n. 1 (1985).

Further, Eleventh Amendment immunity may be raised sua sponte even on

appeal. Cady v. Arenac County, 574 F.3d 334, 344 (6th Cir. 2009). In Cady, the

defendant, a county prosecutor, appeared in the action, engaged in discovery, and

filed both motions to dismiss and summary judgment, and participated in oral

argument – essentially the same acts taken by the Board. The question of immunity

in Cady was not even raised. Id. at 342. In this case, the Board was not silent. It

contested the jurisdiction of the district court at the very outset of the case and

specifically raised the issue of Eleventh Amendment Immunity prior to the full

hearing on the merits.

2. The Ex Parte Young Exception Is Not Applicable


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The question of whether a complaint contains an Ex parte Young action is

determined on a claim-by-claim basis. Ernst v. Rising, 427 F.3d 351, 368 (6th

Cir.2005) (en banc). The district court’s analysis of Ex Parte Young is entirely

based upon the fact that the members of the Board of Elections are also named

parties. But Hunter’s suit is against the Board members in their official capacities.

When officers are sued in their official capacity, they enjoy the same immunities

enjoyed by the entities they represent. Ernst v. Roberts, 379 F.3d 373, 379-380 (6th

Cir. 2004).

While the Eleventh Amendment does not bar claims against individual

defendants in their official capacities for prospective injunctive relief, the Eleventh

Amendment bars claims against a State for retroactive relief. See e.g. Ex Parte

Young, 209 U.S. at 159-60; Ernst, 427 F.3d at 367-68; Quern v. Jordan, 440 U.S.

332, 338 (1979).

The Ex Parte Young exception also does not extend to retroactive

declaratory relief. “Where there is no claimed continuing violation of federal law

or any threat of future violation, a declaratory judgment is inappropriate.” Green v.

Mansour, 474 U.S. 64, 64-65 (1985). An Ex parte Young action may be

commenced only against a state official acting in her official capacity and may

“seek [only] prospective relief to end a continuing violation of federal law.”

Whitfield v. Tennessee, 639 F.3d 253, 257 (6th Cir. 2011), quoting Carten v. Kent


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State Univ., 282 F.3d 391, 395 (6th Cir.2002). NEOCH and ODP sought

declaratory relief that is based entirely on a Consent Decree (RE #8-1) that the

Board was not party to. They also sought a declaration that the Board violated this

decree and several state directives when it rejected for counting certain provisional

ballots in November 2010.

The relief sought by Plaintiffs was not of a prospective nature. Hunter

alleged that the Board treated certain provisional ballots differently during its

official canvass of the November 2010 General Election. The claim is a violation

of equal protection (but not a violation of any of Hunter’s rights) that occurred in

the past. See Papasan v. Allain, 478 U.S 265 (1986). Hunter sought to vacate

completed official acts – votes taken by the Board – that rejected for counting

some, but not all, provisional ballots. Other courts have held in similar

circumstances that Ex Parte Young does not apply. See Goodson v. Maggi, 797

F.Supp.2d 587, 603 (W.D.Pa. 2011) (request to vacate prior court orders not

subject to Ex Parte Young); King Lincoln Bronzeville Neighborhood Association v.

Husted, 2012 WL 395030 (Ex Parte Young does not apply when defendants are

alleged to have deprived voters of the right to vote by undermining bipartisan

supervision of elections during 2004 Presidential election). These circumstances

are not dissimilar from what Hunter now alleges.


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The district court’s decision is not prospectively based. The court’s

conclusion begins with the finding that the “[Board] violated provisional voters’

right to equal protection when, in determining whether provisional ballots were

cast in the wrong precinct because of poll–worker error, it considered evidence of

the location where provisional ballots were cast for some, but not all, provisional

ballots cast in the wrong precinct.” (Id., p. 91.) The consideration and violation are

both past acts, not ongoing violations. The district court then enjoined the Board

“from rejecting” certain provisional ballots that it had already rejected in

November 2010. This is simply an injunction by vacation of the Board’s completed

acts and substitution of the district court’s judgment as to what it believed should

have occurred. This is not prospective relief and the Ex Parte Young exception

does not apply.

VIII. CONCLUSION

For the reasons stated above, the district court’s Judgment and Order of

February 12, 2012 should be reversed and judgment entered in favor of the

Hamilton County Board of Elections and its Members.

Respectfully submitted, JOSEPH T. DETERS PROSECUTING ATTORNEY HAMILTON COUNTY, OHIO BY:


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/s/ James W. Harper James W. Harper David T. Stevenson Thomas Grossmann Colleen M. McCafferty Assistant Prosecuting Attorneys 230 East Ninth Street, Suite 4000 Cincinnati, Ohio 45202 ddn: (513) 946-3159(Harper) (513) 946-3120 (Stevenson) (513) 946-3058 (Grossmann) (513) 946-3133 (McCafferty) Fax: (513) 946-3018 [email protected] [email protected] [email protected] [email protected] Attorneys for Defendants/Appellants


61

CERTIFICATE OF COMPLIANCE

The undersigned certifies that the foregoing brief complies with the type-

volume limitations of Federal Rule of Appellate Procedure 32(a)(7). Exclusive of

the exempted portions, as provided in Fed.R.App.P 32(a)(7)(B)(iii), this brief

contains 13,984 words. The brief was prepared in proportionally spaced typeface

using Microsoft Word in 14 point Times New Roman font. As permitted by

Fed.R.App.P 32(a)(7)(c), I have relied upon the word count of Microsoft Word in

preparing this certificate.

/s/ James W. Harper James W. Harper


62

CERTIFICATE OF SERVICE

I hereby certify that the foregoing was filed on June 13, 2012 using the

Court’s CM/ECF system, which will transmit notice of the filing to all counsel of

record in this case.

/s/ James W. Harper James W. Harper


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DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS

Date RE# Description 11/21/10 1 Hunter Complaint 11/22/10 8 NEOCH/ODP Motion to Intervene and Complaint 11/22/10 8-1 NEOCH Consent Decree 11/22/10 9 Board Response to Motion for Temporary

Restraining Order and Preliminary Injunction

11/22/10 13 Order Granting In Part Plaintiff’s Request For A Preliminary Injunction

12/09/10 20 Hunter Motion To Enforce Preliminary Injunction Order

12/13/10 26 Board Response to Motion to Enforce Preliminary Injunction Order 12/30/10 34-1 State ex. rel Painter v. Brunner Opinion 01/11/11 38 Hunter/NEOCH Emergency Motion to Enforce

Preliminary Injunction and Enjoin Defendant from Complying with Directive 2011-04

01/12/11 39 Order Granting In Part And Denying In Part Motion To Enforce Preliminary Injunction

01/14/11 44 Hunter/NEOCH Emergency Motion to Show Cause Why Board of Elections Should Not Be Held in Contempt

01/14/11 46 Notice of Appeal By Intervernor/Defendant Williams


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01/16/11 48 Notice Of Appeal By Defendant Hamilton County Board of Elections

01/28/11 50 Order of USCA Affirming In Part And Vacating In Part The District Court’s January 12, 2011 Order

05/03/11 56 Board Answer to Hunter Complaint 07/05/11 88 Board Trial Brief 07/05/11 89 Board Proposed Findings of Fact 07/06/11 94 Board Motion for Summary Judgment 07/12/11 103 Board Notice of Appeal 07/15/11 110 Order of USCA Granting Motion to Dismiss

Appeal

07/15/11 112 Board Response to Plaintiffs Trial Brief 07/19/11 118 Hr’g. Tr. Day 1 07/19/11 120 Hr’g. Tr. Day 1 07/20/11 122 Hr’g. Tr. Day 2 07/25/11 138 Hr’g. Tr. Day 5 07/28/11 150 Hr’g. Tr. Day 7 08/01/11 162 Hr’g. Tr. Day 9 08/04/11 169 Hr’g. Tr. Day 11 08/04/11 171 Hr’g. Tr. Day 11 08/08/11 175 Hr’g. Tr. Day 12 08/08/11 176 Hr’g. Tr. Day 12


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08/16/11 180 NEOCH/ODP Amended Complaint 08/30/11 191 Board Motion to Dismiss Amended Complaint of

NEOCH/ODP

09/02/11 192 Amended Board Proposed Findings of Fact and Conclusions of Law

09/22/11 197 Board Reply to Response to Motion to Dismiss

Amended Complaint of NEOCH/ODP 02/08/12 199 Judgment and Order 02/22/12 201 Notice of Appeal, Hamilton County Board of

Elections

02/24/12 202 Board Motion to Stay Judgment and Order 03/08/12 204 Notice of Appeal, Williams 03/14/12 205 Board Reply to Response to Motion to Stay

Judgment and Order 03/26/12 206 Order Denying Motion for Stay


Case Nos. 12-3224, 12-3266 IN THE UNITED STATES COURT …moritzlaw.osu.edu/electionlaw//litigation/documents/Briefof... · IN THE UNITED STATES COURT OF APPEALS ... Goodson v. Maggi

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