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OBAMA FOR AMERICA v. HUSTED
697 F.3d 423 (2012)
OBAMA FOR AMERICA; Democratic National Committee; Ohio Democratic Party, Plaintiffs-Appellees,
v.
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.
OPINIONCLAY, 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. BACKGROUNDI. 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.
* The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting by designation.
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, November 4, 2012; and Monday, November 5, 2012. "Military and overseas voters" are those voters identified in the 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.
2. The Anderson Court stated that it based its "conclusions directly on the First and Fourteenth Amendments" and did not "engage in a separate Equal Protection Clause analysis." Anderson, 460 U.S. at 786 n. 7, 103 S.Ct. 1564. The Court did not need to conduct a separate equal protection analysis because it had already incorporated that analysis into its new "flexible standard." The Court continued, "We rely, however, on the analysis in a number of our prior election cases resting on the Equal Protection Clause of the Fourteenth Amendment." Id. (citing Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968); Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); Lubin v. Panish, 415 U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974); Ill. Elections Bd. v. Socialist Workers Party, 440 U.S. 173, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979)).
3. Plaintiffs' complaint alleges that the State's disparate treatment of non-military voters burdens their fundamental right to vote, and that this burden violates equal protection. (See R. 1, Pls.' Compl., at ¶¶ 6, 12.) The State would presumably agree that if Plaintiffs had challenged the restriction based solely on the First Amendment, the Anderson-Burdick standard would apply. The State cannot escape that standard by asserting that not only does the restriction burden Plaintiffs' right to vote, but it also does so disparately.
4. Intervenors cite to several cases purportedly applying a rational basis standard to similar election regulations, but these cases were either decided before Anderson and Burdick, see, e.g., Prigmore v. Renfro, 356 F.Supp. 427 (N.D.Ala. 1972), or dealt with generally applicable, nondiscriminatory election regulations, see Gustafson v. Ill. State Bd. of Elections, No. 06-C-1159, 2007 WL 2892667 (N.D.Ill. Sept. 30, 2007).
6. The Equal Protection Clause permits states to enact neutrally applicable laws, even if the impact of those laws falls disproportionately on a subset of the population. See, e.g., Crawford, 553 U.S. at 207, 128 S.Ct. 1610 (Scalia, J., concurring) (citing Washington v. Davis, 426 U.S. 229, 248, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976)). However, Ohio's statutory scheme is self-evidently not neutrally applicable; it restricts the rights of some voters and not others.
1. Amended Substitute House Bill Number 194, 2011 Ohio Laws 40.
2. Amended Substitute House Bill Number 224, 2011 Ohio Laws 46.
3. Ohio Rev.Code § 3509.01(B)(3).
4. Substitute Senate Bill Number 295, 2012 Ohio Laws 105.
5. Secretary Husted directed all counties to adopt the following regular business hours:
• 8:00 a.m. to 5:00 p.m., Tuesday through Friday, from October 2, 2012 through October 5, 2012;
• 8:00 a.m. to 9:00 p.m., Tuesday, October 9, 2012; [mandated by Section 3501.10(B)]
• 8:00 a.m. to 5:00 p.m., Wednesday through Friday, from October 10, 2012 through October 12, 2012;
• 8:00 a.m. to 5:00 p.m., Monday through Friday, from October 15, 2012 through October 19, 2012;
• 8:00 a.m. to 7:00 p.m., Monday through Friday, from October 22, 2012 through October 26, 2012;
• 8:00 a.m. to 7:00 p.m., Monday through Thursday, [from] October 29, 2012 through November 1, 2012; and
• 8:00 a.m. to 6:00 p.m., Friday, November 2, 2012.
Directive 2012-35 (PID 1481) (internal footnotes omitted). Any voter in line at the end of these regular business hours must be permitted to make his or her application and vote.
Id.
6. Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983), and Burdick v. Takushi, 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992).
7. Justices Scalia, Thomas and Alito would hold that the weighing of the burden on voters against the state's legitimate regulatory interests must be conducted by looking at the electorate at large, not a particular group of voters who may be burdened disproportionately by an otherwise nondiscriminatory law. See Crawford, 553 U.S. at 205-06, 128 S.Ct. 1610 (Scalia, J., concurring). However, Justice Stevens' opinion in Crawford (the narrowest opinion, thus the controlling one for our purposes) examined the evidence and concluded that, "on the basis of the record that has been made in this litigation, we cannot conclude that the statute imposes `excessively burdensome requirements' on any class of voters." Id. at 202, 128 S.Ct. 1610 (quoting Storer v. Brown, 415 U.S. 724, 738, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974)). Justice Stevens' opinion does not reveal any disinclination to evaluate evidence of an excessive burden; rather, the purely anecdotal evidence did not support that the voter-ID statute at issue imposed such a burden. See Crawford, 553 U.S. at 197-203, 128 S.Ct. 1610.
8. In 2009, former Secretary of State Jennifer Brunner suggested that consideration be given to the pressure on the election commissions caused by in-person absentee voting and that the voting period be shortened from 30 to 20 days, with in-person absentee voting ending at 5 p.m. the Sunday before the election.
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