OBAMA FOR AMERICA v. HUSTED
697 F.3d 423 (2012)
OBAMA FOR AMERICA; Democratic National Committee; Ohio Democratic Party, Plaintiffs-Appellees,
Jon HUSTED, Ohio Secretary of State; Mike Dewine, Ohio Attorney General, Defendants-Appellants (12-4055),
National Guard Association of the United States, et al., Intervenor Defendants-Appellants (12-4076).
Nos. 12-4055, 12-4076.
United States Court of Appeals, Sixth Circuit.
October 5, 2012.
ON BRIEF: William S. Consovoy, Elbert Lin, Brendan J. Morrissey, J. Michael Connolly, 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 Greenebaum Doll LLP, Cincinnati, Ohio, for Appellants in 12-4076. Donald J. McTigue, Mark A. McGinnis, J. Corey Colombo, McTigue & McGinnis LLC, Columbus, Ohio, Robert F. Bauer, Perkins Coie, Washington, D.C., Jennifer Katzman, Obama for America, 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 Commissioners, Youngstown, Ohio, Stephen D. Hartman, Kerger & Hartman, LLC, Toledo, Ohio, Kathleen M. Clyde, Kent, Ohio, for Amici Curiae.
Before: CLAY and WHITE, Circuit Judges; HOOD, District Judge.*
CLAY, J., delivered the opinion of the court, in which HOOD, D.J., joined. WHITE, J. (pp. 437-43), delivered a separate opinion concurring in part and dissenting in part.
CLAY, Circuit Judge.
Defendants Jon Husted, the Secretary of State of Ohio, and Mike DeWine, the Attorney General of Ohio (collectively the "State"), joined by Intervenors representing numerous military service associations ("Intervenors"), appeal from 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 the extent that it prevents some Ohio voters from casting in-person early ballots during the three days before the November 2012 election on the basis that the statute violates the Equal Protection Clause of the Fourteenth Amendment. For the reasons set forth below, we AFFIRM the district court's order granting the preliminary injunction.BACKGROUND
I. Procedural History
On July 17, 2012, Plaintiffs Obama for America, the Democratic National Committee, and the Ohio Democratic Party filed a complaint in district court against Jon Husted, in his official capacity as Secretary of State of Ohio, and Mike DeWine, in his official 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 deadline of 6:00 p.m. on the Friday before Election Day for in-person early voting.1 On the same day, Plaintiffs moved for a preliminary injunction preventing the statute's enforcement. They argued that the relevant statutory provisions "burden the fundamental right to vote but are not necessary to any sufficiently weighty state interest." (R. 2, at 2.)
On August 1, 2012, numerous military service associations filed a motion to intervene, and the district court granted the motion. The State and Intervenors opposed Plaintiffs' motion for a preliminary injunction. They argued that the State's interest in providing military voters with added in-person early voting time and the burden on local boards of elections of providing that same extra time for all voters justified imposing a different deadline on military and overseas voters than all other voters.