United States District Court, S.D. Ohio, Eastern Division
Vascura Magistrate Judge
MICHAEL H. WATCON, JUDGE
November 6, 2019, the Court granted Plaintiff's motion
for summary judgment, denied Defendant's motion for
summary judgment, enjoined Defendant from imposing a
different deadline for the delivery of absentee ballot
applications for Class members than for hospital-confined
voters, and ordered Defendant to direct Ohio's various
boards of elections to apply the hospital-confined deadline
to Class members. Op. and Order, ECF No. 70. Defendant
appealed, Notice of Appeal, ECF No. 72, and moves the Court
to stay enforcement of its Opinion and Order pending the
outcome of that appeal. Mot. Stay, ECF No. 73. The Sixth
Circuit has recently denied Defendant's motion for a
stay, and for the following reasons, this Court does the
STANDARD OF REVIEW
analyzing a motion to stay, the Court considers four factors:
"(1) the likelihood that the party seeking the stay will
prevail on the merits of the appeal; (2) the likelihood that
the moving party will be irreparably harmed absent a stay;
(3) the prospect that others will be harmed if the court
grants the stay; and (4) the public interest in granting the
stay." Schmitt v. Ohio Sec. of State, No.
2:18-cv-966, 2019 WL 1243016, at *1 (S.D. Ohio Mar. 18, 2019)
(quoting Coalition to Defend Affirmative Action v.
Granholm, 473 F.3d 237, 244 (6th Cir. 2006)). These
factors are not prerequisites for granting a stay but are
rather "interconnected considerations" for the
Court to balance. Id.
although Defendant repeatedly asserts that the Court failed
to consider his argument concerning administrative burdens,
the Court considered all arguments raised by Defendant.
Defendant focused on the need for a deadline, generally, and
argues that the State's interests justify having a
deadline for submitting absentee ballots. As the Court stated
in its Opinion and Order, if this law was a
generally applicable one, a straightforward
Anderson-Burdick analysis would apply, and Defendant
very well may win based on that argument. The Court chose not
to determine whether Defendant's interests justify the
burden on the Class's voting rights in a vacuum under the
straightforward Anderson-Burdick analysis, however,
because there was no need to. No. matter how much Defendant
attempts to sidestep the issue, the fact is that this law is
not generally applicable. It treats one group of voters more
favorably than the Class-and, in that differing treatment,
burdens the voting rights of the Class. Because of that,
Defendant must justify the differing treatment and
corresponding burden on voting rights in addition to
justifying the general need for an absentee ballot deadline
and the general burden on voting rights that any deadline
imposes. The Court's Opinion and Order concluded that
Defendant failed to justify the State's differing
treatment of the two classes of voters, and, as such,
found that the law violates the Equal Protection Clause. In
so finding, the Court concluded that administrative burdens
would likely satisfy a traditional Anderson-Burdick
analysis and justify having a generally applicable deadline
but cannot, alone, also justify the State's choice to
grant more favorable voting rights to one group of confined
voters to the detriment of the voting rights of a similarly
situated group of confined voters. Op. and Order 35-37, ECF
No. 70. Regardless of whether Defendant ultimately prevails
on appeal, he is incorrect in arguing that the Court failed
to address his argument.
Court likewise previously considered and rejected
Defendant's argument that hospital-confined and
jail-confined voters are not similarly situated in the
relevant respects, id. at 38-43.
Defendant merely repackages the same arguments in his motion
for a stay that were presented-and fully considered-on
summary judgment, he has failed to convince the Court that
its Opinion and Order was incorrect and that he is likely to
prevail on appeal.
the second and third factors, while it is true that Defendant
will be irreparably harmed absent a stay, see Maryland v.
King, 133 S.Ct. 1, 3 (2012) ("[A]ny time a State is
enjoined by a court from effectuating statutes enacted by
representatives of its people, it suffers a form of
irreparable injury." (internal quotation marks and
citation omitted)), the third factor offsets any harm to
Defendant as Plaintiffs will be harmed if the Court grants
the stay. See Obama for Am. v. Husted, 697 F.3d 423,
436 (6th Cir. 2012) ("A restriction on the fundamental
right to vote ... constitutes irreparable injury."
(citation omitted)). The Court has concluded that Ohio's
statute burdens Plaintiffs' fundamental right to vote and
violates their right to Equal Protection of the laws. This is
thus a "situation in which irreparable harm will befall
one side or the other of the dispute no matter what [the
Court] do[es]." Granholm, 473 F.3d at 252.
flip assertion that people who anticipate becoming Class
members prior to the next election can simply vote early
before they are arrested both: (1) misunderstands the fact
that no Class member can anticipate being arrested and
detained through the election any more than one can plan on
emergency hospitalization-if they could, they would not be
Class members;and (2) shows a remarkable disregard for
the value of the votes of Class members-all of whom are
presumed innocent even as they are deprived of their right to
vote. One could just as callously say that those
who anticipate being confined to a hospital through Election
Day should vote prior to their admission to the hospital.
Such a statement would, of course, be absurd, and it is just
as absurd when directed at the individuals who comprise the
Class in this case.
relatively small, solely pecuniary, burden that would be
imposed on the State to comply with the Court's
injunction pales in comparison to the potential that Class
members' fundamental voting rights will continue to be
unconstitutionally burdened by the State's unequal
treatment of two similarly situated voting groups. When
viewed in this context, it is clear upon whom the burden
should lie pending resolution of the appeal in this case.
See Obama for Am., 697 F.3d at 436-37 ("The
burden on Ohio voters' ability to cast ballots ...
outweighs any corresponding burden on the State, which has
not shown that local boards will be unable to cope with three
extra days of in-person early voting .... While states have a
strong interest in their ability to enforce state election
law requirements, the public has a strong interest in
exercising the fundamental political right to vote."
(internal quotation marks and citations omitted)). Thus,
despite the irreparable harm Defendant faces if the Court
denies his request for a stay, this factor "does not
strongly favor one party or another." See
Granholm, 473F.3d at 252.
the public interest weighs in favor of denying the stay.
Defendant cites cases for the proposition that an injunction
that wrongly bars the State from conducting elections
pursuant to one of its statutes irreparably harms the
State's citizens. But, as addressed above, the Court is
not wrongly enjoining the State from doing anything. Rather,
it is the State that is in the wrong. As just noted, the
public has an interest in ensuring that similarly situated
voters are not unconstitutionally treated differently and
that Ohio's legislature does not cherry pick one group of
favored voters and offer them the right to vote on more
favorable terms than the remainder of the similarly situated
voting population. See Martin-Marietta Corp. v. Bendix
Corp., 690 F.2d 558, 568 (6th Cir. 1982) ("[l]t is
in the public interest not to perpetuate the unconstitutional
application of a statute."). Furthermore, the State is
not being prohibited from conducting its elections at all.
Instead, it is being ordered to ensure similarly situated
voters have equal access to those elections. As the Sixth
Circuit has held, "[t]he public interest therefore
favors permitting as many qualified voters to vote as
possible." Obama for Am., 697 F.3d at 437. The
injunction is in the public interest.
on balance, the factors weigh against granting the stay. In
reaching this conclusion, the Court is mindful that election
law is complex, and the United States Court of Appeals for
the Sixth Circuit may very well ultimately disagree with this
Court's analysis of the issues. Because this Court has
found none of the factors ...