Ohio Senate Bill 238 eliminated the first week of early in-person voting in Ohio, and, in doing so, functioned also to eliminate “Golden Week” (the period of overlap between the last week in which a voter may register to vote and the first week of the early voting period.) Golden Week had in past elections provided the convenience of one-stop registration and voting.
Through his Directives, Secretary of State Jon Husted further reduced early voting times for the upcoming 2014 General Election by eliminating all evening hours and nearly all Sunday voting, except for four hours on one Sunday.
Based on data analysis performed by the ACLU’s National Voting Rights Project, tens of thousands of Ohio voters could be impacted by these cuts.
Legal Theory
At issue was the constitutionally protected right of a citizen to vote in elections on an equal basis with other citizens. The lawsuit challenged these two restrictions on at least three theories: the restrictions: (1) placed an unconstitutional burden upon the right to vote of certain classes of voters (especially lower-income voters), (2) abridged the voting rights of citizens based on their race in violation of Section 2 of the Voting Rights Act, and (3) violated the equal protection clause by reflecting an intent to suppress voting specifically by African Americans.
Status Update
On May 1, 2014, we filed our Complaint in the Southern District Court of Ohio on behalf of the Ohio State Conference of the National Association for the Advancement of Colored People, League of Women Voters of Ohio, Bethel African Methodist Episcopal Church, Omega Baptist Church, College Hill Community Church Presbyterian, U.S.A., A. Phillip Randolph Institute, and Darryl Fairchild. The lawsuit named Secretary of State Jon Husted and Ohio Attorney General Mike DeWine as defendants in their official capacities. The case was given related case status to Obama for America v. Husted, et al. and was accordingly assigned to Judge Peter C. Economus. Defendants filed their Answer on May 23, 2014.
On June 30, 2014, the ACLU filed a motion for preliminary injunction requesting that the Court prevent cuts to voting opportunities from going into effect until after a trial. On July 11, 2014, the Ohio General Assembly (OGA) asked the Court for permission to intervene in the case as a defendant. Shortly afterward, on July 23, 2014, Secretary of State Jon Husted, Attorney General Mike DeWine, and the OGA filed their responses to the Motion for a Preliminary Injunction, and on July 30, 2014, the ACLU filed its reply.
OGA’s request to intervene in the case as a defendant was denied by Judge Economus on July 30, 2014. OGA appealed the decision to the United States Court of Appeals for the Sixth Circuit on August 1, 2014 and requested that the appeal be expedited. The ACLU opposed OGA’s request for an expedited appeal. On August 6, 2014, the Sixth Circuit denied OGA’s request for an expedited appeal and set a briefing schedule on the issue of whether OGA could join the case. OGA’s brief was filed September 18, 2014, and the ACLU’s response on October 21, 2014.
Having been denied permission to join the case as a defendant, OGA filed an amicus brief on August 8, 2014. In addition to OGA, the following parties also filed amicus briefs: Cuyahoga County (7/8/2014), the U.S. Department of Justice (7/30/2014), and the Ohio Senate and Ohio House Democratic Caucuses (8/1/2014).
The hearing on the ACLU’s motion for preliminary injunction was held on August 11, 2014 in Columbus. On September 4, 2014, Judge Economus granted our motion for preliminary injunction and ordered the restoration of early voting opportunities, including Golden Week (September 30 through October 6); evening hours during the weekdays in the last two weeks before the election; and an additional Sunday (October 26). Judge Economus also ordered Husted to permit boards of elections to expand these hours by a majority vote.
Shortly after the order was issued, Defendants appealed the decision to the Sixth Circuit Court of Appeals and requested an expedited appeal. We filed our response in opposition to an expedited appeal on September 10. On September 11, the Sixth Circuit Court granted an expedited appeal and set the briefing schedule, requiring that Appellants’ Principal Brief be filed by September 15; our Principal Brief by September 19; and Appellants’ Reply by September 22.
On September 5, 2014, after having twice tried unsuccessfully to intervene as defendants in the case before the District Court, OGA filed a renewed motion to intervene for purposes of the appeal. Judge Economus granted their request.
On September 9, 2014, Defendants filed a motion in the District Court requesting that Judge Economus prevent his Order restoring early voting opportunities from taking effect pending the appeal. On September 10, 2014, we filed a response in opposition to Defendants’ request; shortly thereafter, Judge Economus denied Defendants’ motion and upheld his order. On September 10, we filed a motion requesting that Judge Economus enforce his Order, against Secretary Husted who had failed to begin compliance. Defendants responded on September 12.
On September 11, 2014, in the Sixth Circuit, Defendants filed a motion for stay, to prevent District Court Judge Economus’ September 4 Order restoring early voting opportunities from taking effect pending the appeal. On September 12, we filed our Response, and Defendants’ Motion for Stay was denied.
On September 15, 2014, Defendants filed their Appellant Brief in the Sixth Circuit. We filed our Appellee Brief on September 19, and Defendants filed their Reply on September 22. Amicus briefs were filed by Cuyahoga County, the U.S. Department of Justice, and the Ohio General Assembly.
On September 24, 2014, a three-judge panel of the Sixth Circuit Court of Appeals affirmed Judge Economus’ Order restoring the eliminated early voting opportunities. On the same day, Defendants challenged the Sixth Circuit panel decision by requesting that the case be reviewed by the full set of judges on the Sixth Circuit Court. On September 25, Defendants also filed a request with the U.S. Supreme Court to block the ruling. The Supreme Court agreed to hear the request, and we filed our Response on September 27. Defendants filed their Reply on September 28.
On September 29, 2014, the U.S. Supreme Court granted Defendants’ request and blocked District Court Judge Economus’ September 4 Order that had restored the previously eliminated early voting opportunities. As a result of the Supreme Court’s actions, the Sixth Circuit panel vacated its September 24 Decision and District Court Judge Economus’ September 4 Opinion and Order.
The District Court held a status conference on December 3, 2014. The Court issued a scheduling order, setting deadlines of May 1, 2015 for fact discovery and June 2, 2015 for all dispositive briefs. The next status conference with the District Court was set for May 19, 2015.
On December 19, 2014, the Sixth Circuit Court of Appeals issued a ruling vacating the District Court’s order denying the Ohio General Assembly’s Motion to Intervene and remanded the matter back to the District Court. On January 14, 2015, the District Court granted the Ohio General Assembly’s Motion to Intervene. Discovery continued.
On April 17, 2015, we reached a settlement with Secretary of State Husted. In exchange for the dismissal of the case with prejudice, the Secretary of State will provide the following schedule for early voting for all 88 Ohio counties through December 31, 2018:
Presidential General Elections:
- Weeks One and Two of Voting (beginning with the day after the close of registration for the election except any holiday established by state law)
- 8:00 a.m. to 5:00 p.m. on each weekday (Monday through Friday)
- Week Three of Voting
- 8:00 a.m. to 6:00 p.m. on each weekday (Monday through Friday)
- 8:00 a.m. to 4:00 p.m. on Saturday
- 1:00 p.m. to 5:00 p.m. on Sunday
- Week Four of Voting
- 8:00 a.m. to 7:00 p.m. on each weekday (Monday through Friday)
- 8:00 a.m. to 4:00 p.m. on the Saturday before election day
- 1:00 p.m. to 5:00 p.m. on the Sunday before election day
- Week of Election Day
- 8:00 a.m. to 2:00 p.m. on the Monday before election day
Presidential Primary Elections and Gubernatorial General Elections:
- Weeks One and Two of Voting (beginning with the day after the close of registration for the election, except any holiday established by state law)
- 8:00 a.m. to 5:00 p.m. on each weekday (Monday through Friday)
- Week Three of Voting
- 8:00 a.m. to 5:00 p.m. on each weekday (Monday through Friday)
- 8:00 a.m. to 4:00 p.m. on Saturday
- Week Four of Voting
- 8:00 a.m. to 7:00 p.m. on each weekday (Monday through Friday)
- 8:00 a.m. to 4:00 p.m. on the Saturday before election day
- 1:00 p.m. to 5:00 p.m. on the Sunday before election day
- Week of Election Day
- 8:00 a.m. to 2:00 p.m. on the Monday before election day
Regular Municipal Elections, Primary Elections, and Special Elections:
- Weeks One, Two and Three of Voting(beginning with the day after the close of registration for the election, except any holiday established by state law)
- 8:00 a.m. to 5:00 p.m. on each weekday (Monday through Friday)
- Week Four of Voting
- 8:00 a.m. to 7:00 p.m. on each weekday (Monday through Friday)
- 8:00 a.m. to 4:00 p.m. on the Saturday before election day
- 1:00 p.m. to 5:00 p.m. on the Sunday before election day
- Week of Election Day
- 8:00 a.m. to 2:00 p.m. on the Monday before election day
Prior to OGA’s intervention in the case, it had also appealed the Preliminary Injunction to the Sixth Circuit. The case having been dismissed in the District Court, this appeal was dismissed on April 28, 2015.
