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Sixth Cir - OFA v Husted

Sixth Cir - OFA v Husted

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Published by: Chris Geidner on Oct 05, 2012
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*
The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting by designation.
RECOMMENDED FOR FULL-TEXT PUBLICATION 
Pursuant to Sixth Circuit Rule 206File Name: 12a0356p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT_________________
O
BAMA FOR
A
MERICA
;
 
D
EMOCRATIC
N
ATIONAL
C
OMMITTEE
;
 
O
HIO
D
EMOCRATIC
P
ARTY
,
Plaintiffs-Appellees
,
v
.J
ON
H
USTED
,
 
Ohio Secretary of State;
 
M
IKE
D
EWINE
, Ohio Attorney General,
Defendants-Appellants (12-4055)
,N
ATIONAL
G
UARD
A
SSOCIATION OF THE
U
NITED
S
TATES
, et al.
 Intervenor Defendants-Appellants (12-4076)
.
X----
>
,----------N
Nos. 12-4055/4076
Appeal from the United States District Courtfor the Southern District of Ohio at Columbus.No. 2:12-cv-00636—Peter C. Economus, District Judge.Decided and Filed: October 5, 2012Before: CLAY and WHITE, Circuit Judges; HOOD, District Judge.
*
_________________
COUNSELON BRIEF:
William S. Consovoy, Elbert Lin, Brendan J. Morrissey, J. MichaelConnolly, WILEY REIN LLP, Washington, D.C., Richard N. Coglianese, Michael J.Schuler, Lindsay M. Sestile, OHIO ATTORNEY GENERAL’S OFFICE, Columbus,Ohio, for Appellants in 12-4055. James M. Dickerson, BINGHAM GREENEBAUMDOLL LLP, Cincinnati, Ohio, for Appellants in 12-4076. Donald J. McTigue, Mark A.McGinnis, J. Corey Colombo, McTIGUE & McGINNIS LLC, Columbus, Ohio, RobertF. Bauer, PERKINS COIE, Washington, D.C., Jennifer Katzman, OBAMA FORAMERICA, Chicago, Illinois, for Appellees. Lawrence J. Joseph, Washington, D.C.,Jay Alan Sekulow, AMERICAN CENTER FOR LAW & JUSTICE, Washington, D.C.,Joseph E. Sandler, Elizabeth F. Getman, SANDLER, REIFF, YOUNG & LAMB, P.C.,Washington, D.C., Paul J. Gains, MAHONING COUNTY BOARD OF COUNTY
1
Case: 12-4055 Document: 006111457654 Filed: 10/05/2012 Page: 1
 
Nos. 12-4055/4076
Obama for America, et al. v. Jon Husted, et al.
Page 2
1
All references to the election or Election Day refer to the November 6, 2012 election. The three-day period prior to Election Day specifically refers to Saturday, November 3, 2012; Sunday, November4, 2012; and Monday, November 5, 2012. “Military and overseas voters” are those voters identified in the
COMMISSIONERS, Youngstown, Ohio, Stephen D. Hartman, KERGER &HARTMAN, LLC, Toledo, Ohio, KATHLEEN M. CLYDE, Kent, Ohio, for AmiciCuriae.CLAY, J., delivered the opinion of the court, in which HOOD, D. J., joined.WHITE, J. (pp. 21-29), delivered a separate opinion concurring in part and dissentingin part.
_________________OPINION_________________
CLAY, Circuit Judge. Defendants Jon Husted, the Secretary of State of Ohio,and Mike DeWine, the Attorney General of Ohio (collectively the “State”), joined byIntervenors representing numerous military service associations (“Intervenors”), appealfrom the district court’s order granting Plaintiffs’ motion for a preliminary injunction.The district court enjoined the State from enforcing Ohio Rev. Code § 3509.03 to theextent that it prevents some Ohio voters from casting in-person early ballots during thethree days before the November 2012 election on the basis that the statute violates theEqual Protection Clause of the Fourteenth Amendment. For the reasons set forth below,we
AFFIRM
the district court’s order granting the preliminary injunction.
BACKGROUNDI.Procedural History
On July 17, 2012, Plaintiffs Obama for America, the Democratic NationalCommittee, and the Ohio Democratic Party filed a complaint in district court against JonHusted, in his official capacity as Secretary of State of Ohio, and Mike DeWine, in hisofficial capacity as Attorney General of Ohio. Plaintiffs alleged that Ohio Rev. Code§ 3509.03 was unconstitutional insofar as it imposes on non-military voters a deadlineof 6:00 p.m. on the Friday before Election Day for in-person early voting.
1
On the same
Case: 12-4055 Document: 006111457654 Filed: 10/05/2012 Page: 2
 
Nos. 12-4055/4076
Obama for America, et al. v. Jon Husted, et al.
Page 3
federal Uniformed and Overseas Citizens Absentee Voting Act of 1986, 42 U.S.C. § 1973ff (“UOCAVA”),as amended by the Military and Overseas Voter Empowerment Act, Pub. L. 111-84, 123 Stat. 2190 (2009)(“MOVE Act”), and corresponding sections of the Ohio Election Code, Ohio Rev. Code § 3511.01. “Non-military voters” are all other eligible voters.
day, Plaintiffs moved for a preliminary injunction preventing the statute’s enforcement.They argued that the relevant statutory provisions “burden the fundamental right to votebut are not necessary to any sufficiently weighty state interest.” (R. 2, at 2.)On August 1, 2012, numerous military service associations filed a motion tointervene, and the district court granted the motion. The State and Intervenors opposedPlaintiffs’ motion for a preliminary injunction. They argued that the State’s interest inproviding military voters with added in-person early voting time and the burden on localboards of elections of providing that same extra time for all voters justified imposing adifferent deadline on military and overseas voters than all other voters.The district court conducted a hearing on Plaintiffs’ motion on August 15, 2012.The parties filed numerous exhibits, including legislative history, declarations of careermilitary officers and voting experts, and statistical and demographic studies by variousgovernmental agencies and non-governmental organizations. On August 31, 2012, thedistrict court issued an opinion and order granting Plaintiffs’ motion for a preliminaryinjunction. The district court concluded that § 3509.03 violated the Equal ProtectionClause to the extent that it set a different in-person early voting deadline for non-militaryvoters because “the State’s interests are insufficiently weighty to justify the injury toPlaintiffs.” ___ F. Supp. 2d ___, No. 2:12-cv-00636, 2012 WL 3765060, at *10 (S.D.Ohio Aug. 31, 2012). The district court enjoined the enforcement of § 3509.03 andordered that in-person early voting be available to non-military voters on the same termsas before the enactment of Amended Substitute House Bill 224 and Substitute SenateBill 295.
 Id.
at 22–23. The preliminary injunction ensures that all Ohio voters—military,overseas, and non-military—are afforded the same opportunity for in-person early votingthat was available to them prior to the enactment of § 3509.03.
Case: 12-4055 Document: 006111457654 Filed: 10/05/2012 Page: 3

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