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Obama for Amerca v. Husted Preliminary Injunction Motion

Obama for Amerca v. Husted Preliminary Injunction Motion

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Published by Doug Mataconis
Motion for Preliminary Injunction in Obama for America et al v. Husted et al
Motion for Preliminary Injunction in Obama for America et al v. Husted et al

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Published by: Doug Mataconis on Aug 04, 2012
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09/04/2012

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 1
IN THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF OHIOEASTERN DIVISION
OBAMA FOR AMERICA; :
Case No. 2:12cv00636
 DEMOCRATIC NATIONAL :COMMITTEE; and :
Judge Peter C. Economus
 OHIO DEMOCRATIC PARTY ::
Magistrate Judge Norah McCann King
 Plaintiffs, :v. ::JON HUSTED, in his official capacity :as Ohio Secretary of State and :
PLAINTIFFS’ MOTION FOR 
 MIKE DEWINE, in his official capacity :
PRELIMINARY INJUNCTION
:
AND
as Ohio Attorney General :
MEMORANDUM OF LAW IN
:
SUPPORT
Defendants. :
MOTION FOR PRELIMINARY INJUNCTION
Plaintiffs Obama for America, the Democratic National Committee, and the OhioDemocratic Party hereby move this Court for a preliminary injunction to prevent the StateDefendants from arbitrarily denying tens of thousands of Ohio voters the right to cast their votesin the three days prior to Election Day – a critical right that was granted to all qualified Ohiovoters in 2005, used by an estimated 93,000 Ohio voters in the 2008 presidential election, andinequitably taken away from most, but not all, Ohio voters without justification in the last year.As demonstrated below, and in the supporting Memorandum of Law, Plaintiffs are very likely tosucceed on their claims that recent legislative changes to Ohio election law violate the EqualProtection Clause of the United States Constitution; Plaintiffs’ members and supporters – Democratic voters who may not be able to vote if the right to vote early in person in the threedays prior to Election Day is taken away – will be irreparably harmed if an injunction does not
Case: 2:12-cv-00636-PCE-NMK Doc #: 2 Filed: 07/17/12 Page: 1 of 32 PAGEID #: 22
 
 2issue; the balance of hardships tips in Plaintiffs’ favor; and a preliminary injunction restoringearly voting in the three days prior to Election Day for all eligible Ohio citizens would be in the public interest.As a result of a confused series of statutory maneuvers and “technical corrections” in thelast year, Ohio election law now treats similarly situated Ohio voters differently with respect tothe deadline for in-person early voting. Following the passage of Amended Substitute HouseBill 224 (“HB 224”) and Substitute Senate Bill 295 (“SB 295”), voters using the Uniformed andOverseas Citizens Absentee Voter Act (“UOCAVA”) are entitled to vote early up until the closeof the polls on Election Day, pursuant to Ohio Rev. Code § 3511.10; non-UOCAVA voters,however, face a more restrictive deadline: 6 p.m. on the Friday before an election, pursuant toOhio Rev. Code § 3509.03. This disparate treatment, which results in a significant burden on thefundamental right to vote for non-UOCAVA voters, is entirely arbitrary. The Ohio GeneralAssembly failed to articulate any justification for this disparate treatment in the legislative record – an extraordinary omission given that the disparity was brought to the Assembly’s attentionthrough testimony. Moreover, no legitimate justification can be discerned. The three-daydifference for in-person early voting is unrelated to voter qualifications. Furthermore, even if there were an asserted justification, the relevant provisions must fall: They burden thefundamental right to vote but are not necessary to any sufficiently weighty state interest. Finally,to the extent the disparity was motivated by a bare desire to obtain partisan advantage in theelection contest, that motivation cannot justify the disparate treatment. Nor can a simple draftingerror. In sum, Plaintiffs are likely to succeed on their claim that amendments made to Ohio Rev.Code § 3509.03 by HB 224 and SB 295, which eliminate the last three days of early voting prior 
Case: 2:12-cv-00636-PCE-NMK Doc #: 2 Filed: 07/17/12 Page: 2 of 32 PAGEID #: 23
 
 3to Election Day for non-UOCAVA voters only, violate 42 U.S.C. § 1983 and the EqualProtection Clause of the Fourteenth Amendment to the United States Constitution.Moreover, thousands of Ohio voters, including many of Plaintiffs’ members andsupporters, will be irreparably harmed if a preliminary injunction does not issue. It is wellsettled that an abridgement or dilution of the right to vote constitutes irreparable harm. Here, thewithdrawal from most, but not all, Ohio voters of the right to cast a ballot in the three days prior to Election Day places a significant burden on the right to vote. This burden, once imposed, cannever be undone. Indeed, early voting – particularly in the three days prior to Election Day whenearly voting turnout is heavy – is critical to ensuring that voters are not disenfranchised by thelong delays that plagued the 2004 presidential election.In contrast, the State cannot demonstrate any hardship at all. Any administrative issueswould be minimal; Ohio has successfully administered early in-person voting in the three days prior to Election Day for five years. Indeed, the absence of early voting in the three days prior toElection Day for most Ohio voters is likely to increase the administrative burden on the Ohioelection system given the overcrowding that occurred in the 2004 presidential election before theearly voting system was put in place. To the extent there is any administrative inconveniencefrom the relief requested herein, it is far outweighed by the infringement of voters’ constitutionalrights. Finally, it is well settled that protecting constitutional rights, as a preliminary injunctionhere would do, is always in the public interest.In light of the foregoing and as set forth in the Proposed Order submitted herewith,Plaintiffs seek a preliminary injunction that would prohibit the Defendants from implementing or enforcing the HB 224 amendments to Ohio Rev. Code § 3509.03, specifically lines 863 and 864of § 3509.03 (I) in HB 224, as well as the enactment of Ohio Rev. Code § 3509.03 with the HB
Case: 2:12-cv-00636-PCE-NMK Doc #: 2 Filed: 07/17/12 Page: 3 of 32 PAGEID #: 24

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