No.

12-4354 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT THE NORTHEAST OHIO COALITION FOR THE HOMELESS, et al., Plaintiffs-Appellees, v. JON HUSTED, et al., Defendants-Appellants. : : : : : : : : : : : On Appeal from the United States District Court for the Southern District of Ohio District Court Case No. 2:06-cv-896 EMERGENCY MOTION OF APPELLANTS OHIO SECRETARY OF STATE AND STATE OF OHIO TO STAY ORDER PENDING APPEAL MICHAEL DEWINE Ohio Attorney General AARON D. EPSTEIN* *Counsel of Record ERIN BUTCHER-LYDEN Assistant Attorneys General Constitutional Offices Section 30 E. Broad St., 16th Floor Columbus, Ohio 43215 614-466-2872 614-728-7592 fax aaron.epstein@ohioattorneygeneral.gov Counsel for Defendants-Appellants Ohio Secretary of State Jon Husted Case: 12-4354 Document: 006111500180 Filed: 11/14/2012 Page: 1

RICHARD N. COGLIANESE Assistant Attorney General Constitutional Offices Section 30 E. Broad Street, 16th Floor Columbus, Ohio 43215 614-466-2872; 614-728-7592 (fax) richard.coglianese@ohioattorneygeneral.gov Counsel for the State of Ohio Case: 12-4354 Document: 006111500180 Filed: 11/14/2012 Page: 2

1 INTRODUCTION This Court recently repeated that eleventh-hour changes to election rules are highly disfavored. SEIU v. Husted, No.12-4264, 2012 U.S. App. LEXIS 22417 (6th Cir. Oct. 31, 2012) at *10. This latest round is worse: the district court changed the rules after the election was held, but before Ohio s provisional ballo ts are opened for counting this Saturday. The court ordered Ohio s elections official s to count ballots that are invalid under Ohio law because the provisional ballot affirmation does not indicate the would-be voter provided any form of identification at all. Ohio s Voter ID law is valid, yet the court s order essential ly suspends that law for these ballots based primarily upon a claimed violation of state law, not federal law, and based on November objections to a form issued in January, and based on other flawed reasoning. The district court has ordered the Secretary to issue a directive to local boards of elections, instructing them to count defective provisional ballots, by noon on Friday, November 16. The State of Ohio and its Secretary of State (the State ) urgently ask this Court to stay or vacate the district court s order, and to allow Ohio to count ballots according to the rules that Ohio had in place on Election Day. The ballot deficiency here is similar to one this Court addressed in its first October ruling in this case. NEOCH v. Husted, 696 F.3d 580, Nos. 12-3916, 124069, 2012 U.S. App. LEXIS 21058 (6th Cir. Oct. 11, 2012). Ohio s provisional Case: 12-4354 Document: 006111500180 Filed: 11/14/2012 Page: 3

2 ballot form asks a voter to complete a three-step affirmation that the voter is who she says she is and is eligible to vote. The affirmation on Form 12-B requires t he voter to (1) print her name, (2) list the form of ID she provided, by writing he r SSN-4, writing her driver s license number, or checking a box for the other applicable form of ID she used, and (3) sign the affirmation. This Court address ed Steps One and Three, and held that Ohio could validly require the voter to complete those simple steps. It reversed an injunction that shifted the duty to pollworkers and, on the theory that the pollworker s failure caused the deficiency, ordered ballots counted when the affirmations were deficient. Now, the district court and NEOCH have focused belatedly on Step Two, and the court has ordered that any missing identification in Step Two cannot be blamed on the voter. The court said that state law obliges the pollworker to cover that step, so any deficient ballot must be counted, even though the deficiency means that ther e is no evidence the voter provided any identification at all. The order purports to be a clarification and modification of the NEOCH Consent Decree, not an ordinary injunction but that justification is untenable on several grounds, especially as to court s order to extend the Decree to cover all voters, not just the SSN-4 voters covered by the Decree. That extension cannot b e justified, and must be reversed. The Decree s override of Ohio law as to SSN-4 voters is also invalid. This new overtime order should be stayed. Case: 12-4354 Document: 006111500180 Filed: 11/14/2012 Page: 4

3 STATEMENT OF FACTS The fuller background of the Consent Decree is explained in this Court s NEOCH decision. NEOCH at *5. Briefly, the Decree was entered on behalf of voters using their SSN-4s as identification, and the Decree includes various rul es governing when provisional ballots cast by SSN-4 voters must be counted. Ohio law requires a provisional voter to complete an Affirmation as a condition for election officials to open and count the provisional ballot. Ohio Rev. Code 3505.182, R.C. 3505.183. The Affirmation used in last week s election is part of Form 12-B, the provisional ballot envelope. The Secretary distributed the current version of the form to all boards of elections on January 4, 2012, along with Directive 2012-01. Declaration of Matt Damschroder in NEOCH, (R. 352-1, PageID#12732). Form 12-B has been used in three elections, including the November 6, 2012 general election. The current form replaced a version that was used from July 2008 until January 2012. (Id. at 12732). As Directive 2012-01 noted, the form was updated in response to concerns from county boards and from voter advocacy groups. The old form included more information than the current one, including items not required for a provisional ballot to be eligible to be counted, and questions ar ose about whether issues regarding non-required items would affect whether the ballo t was counted. For example, boards had asked whether a ballot would be counted or Case: 12-4354 Document: 006111500180 Filed: 11/14/2012 Page: 5

4 not based various pollworkers marks on the back of the provisional ballot envelope, the Verification Statement. (Id. at 12733). The Secretary has always said no, such marks should not be counted against a voter. The Secretary, after consulting with boards and voter advocacy groups, determined that confusion arose from a form that asked for too much, and he accordingly streamlined the form to ask only for information required to count t he ballot. (Id.). The new Form 12-B spells out what is required on the front and ba ck of the provisional ballot envelope. The envelope s front includes the Provisional Ballot Affirmation, for the voter to complete in three simple steps: Step 1: The provisional voter must print her name. Step 2: The voter must write the actual information used as identification at the polling place the voter s SSN-4 or driver s license number or check a box indicating a different form of identification used (such as utility bill). Step 3: The voter must sign the Affirmation. See NEOCH (R. 346-3, Form 12-B, PageID#12605). The form tells the voter which part is hers to complete, and is labeled on the left side as MANDATORY INFORMATION REQUIRED FOR YOUR BALLOT TO COUNT. Separate from this voter-completed part, the bottom of the front of the provisional ballot envelope contains a part labeled to be completed by the Precinct Election Official, where the pollworker can write the precinct, location and sign and date it. However, as that part notes, a pollworker s failure to Case: 12-4354 Document: 006111500180 Filed: 11/14/2012 Page: 6

5 complete that section does not affect the ballot s eligibility. The back of the envelope has a change of address/change of name form, to be filled out only by those voters who are changing their address and/or name. (Id. at PageID#12606). Form 12-B, which was sent to boards in January 2012 with Directive 2012-01, was re-sent to boards on Friday, November 2, 2012, along with Directive 2012-54. That Directive comprehensively restated, in one place, a mandatory sixs tep process for boards of elections to use when determining whether a provisional ballot is eligible. (See R. 348-1, Directive, PageID#12617-21). Many of those rules restate Ohio law. Some restate the Consent Decree s requirements. Some incorporate recent court orders, like the requirement to count ballots cast in t he wrong precinct, but right location and the requirement not to count ballots cast in the wrong place. The Secretary had hoped to send such a final wrap-up directive much earlier, but desired to have the directive be both comprehensive and final, after the dus t had settled from litigation. After this Court s October 11 and 31 decisions, the parties and the district court addressed other language implementing those decisions and the district court s October 26 decision. That process continued unt il the afternoon of Friday, Nov. 2, when the parties received an e-mail from the co urt after 2 pm. The Secretary issued the directive within hours, by 5:45 pm. Case: 12-4354 Document: 006111500180 Filed: 11/14/2012 Page: 7

6 Meanwhile, less than a week before the election, NEOCH counsel informed the Secretary about a concern with Step Two of the January-issued Form 12-B and filed on that issue Thursday, November 1. In the parallel SEIU case, on Monday November 5, Plaintiff SEIU filed motions seeking similar relief for all voters. That motion was withdrawn at oral argument on Wednesday, November 7, the day after Election Day. On November 13, at 5:00 p.m. the district court issued the Order being appealed. As detailed below, the Order instructs Ohio s elections officials to cou nt ballots that are incomplete in Step 2, i.e., those that do not reflect what form of identification, if any, was provided. The court ordered such relief apply not on ly to SSN-4 voters covered by the Decree, but to all voters. The only exception detail ed by the court is that a board may reject provisional ballots if the pollworker wr ote certain information on the form. The court ordered the Secretary to issue a conforming directive by 12:00 noon on Friday, November 16. Ohio law provides for boards of elections to open and count provisional ballots beginning (and ending, if a board so choses) on Saturday, November 17, t o be completed no later than by November 27. The State now seeks an emergency stay of the district court order. Case: 12-4354 Document: 006111500180 Filed: 11/14/2012 Page: 8

7 ARGUMENT The order is invalid for several reasons. First, the order was not validly extended to all Ohio voters, as coverage of non-SSN-voters is beyond the scope o f enforcing or clarifying the Consent Decree. Second, the order was not valid even as to SSN-4 voters, because the new order expands what the original Decree said, without justification or authority. Third, moving the goalposts post-elect ion is unwarranted and should be rejected. The standard for a stay pending appeal is similar to typical injunctive factors. SEIU at *10. The State did not seek a stay from the trial court below, as it was impractical. The order was issued about 5 pm on Tuesday, and orders the Secretary to issue a conforming directive by Friday at noon. A. The Consent Decree, which concerns only SSN-4 voters, was not validly extended to cover non-SSN-voters, as a matter of standing, substance, and more. The district court proceeded in two steps. First, it said that the Decree justified giving relief to SSN-4 voters. That alone is wrong, as explained in Pa rt B below. Second, it said that once relief was granted to those voters, equal prote ction principles required extending the same relief to all provisional voters. That expansion of coverage is unjustified, independent of the underlying merits issue s. First, NEOCH has no standing to pursue the interests of non-SSN-4 voters. NEOCH was granted standing years ago to protect the interests of voters using Case: 12-4354 Document: 006111500180 Filed: 11/14/2012 Page: 9

8 their SSN-4s as identification. NEOCH, No. C2-06-896, 2008 U.S. Dist. LEXIS 109476 (S.D. Ohio Sept. 30, 2008), at *22-23. The expansion here covers all others: those who provide no identification at all, and thus leave Step 2 blank for that reason, and those who provide another form of identification, but fail to f ill out Step 2. NEOCH does not represent their interests, and cannot speak for them. Initially, the two sets of plaintiffs sought relief in by two paths. The NEOCH plaintiffs sought modification of the Decree, and the SEIU plaintiffs sought a preliminary injunction granting other voters the same relief. But SEIU withdrew its motion, and the case proceeded solely under the NEOCH motion. This contrasts sharply with what this Court affirmed in NEOCH as to the interplay between SSN-4 voters and other voters as to wrong-precinct voting. In NEOCH, this Court endorsed the idea that the SEIU Plaintiffs, in the SEIU case, could seek relief to level up the Decree s terms to cover other voters to achieve equality. NEOCH at *65. But that was procedurally an injunction sought by those other voters, not a request by the NEOCH voters to extend their Decree to others . Second, standing also fails because NEOCH did not bring forward a single voter who encountered a failure to complete Step 2, even though we are in a post-election setting. This Court has allowed more generous standing in preelect ion cases to allow for the fact that we do not know who in particular might run into a particular problem. Sandusky Co. v. Blackwell, 387 F.3d 565, 574 (6th Cir . Case: 12-4354 Document: 006111500180 Filed: 11/14/2012 Page: 10

9 2004). But that no longer applies here, where the Election Day facts have happened, and plaintiffs ought to be able to find affected voters before they pu rport to speak for them. Indeed, NEOCH and allies aggressively sought information from voters regarding any problems, and the evidence they submitted on this issu e undercuts their claims. They submitted declarations showing that some voters did properly complete Step 2, while other voters said their pollworkers helped them complete Step 2. (R. 354-3 to 354-9, Declarations, PageID#12804-811). But both sets show that the forms were completed. Third, even viewed as a matter of substance rather than standing, the Decree cannot reasonably be modified to cove r other voters. The Decree s own terms provide that boards may not reject a provisional ballot cast by a voter, who uses only the last four digits of his or her social security numbers as identification, for any of various listed reasons. Decree (R. 210, Consent Decree, PageID#4973). Even if the Decree can somehow be modified to provide additional relief for the covered voters, extension to ot hers is not provided for under the Decree. The court cited no authority for the proposition that new parties let alone parties not appearing in court to seek such treatment may be added to a consent decree s coverage. Indeed, the part of the order expanding the Decree s coverage to other voters is best viewed as a freestanding preliminary injunction on behalf of othe r Case: 12-4354 Document: 006111500180 Filed: 11/14/2012 Page: 11

10 voters, but one not sought by any such other voters, and one not justified by th e ordinary injunction factors. Fourth, the court s equal protection theory (that other voters deserve the same treatment as SSN-4 voters) does not logically apply here, as it is distinct in several ways from the equal protection comparison used in NEOCH in the wrongprec inct context. To start, the baseline in that case was treatment that the State agreed to in the Decree, so this Court held the State to it as the State s action, and demanded equal treatment. Here, the baseline treatment for SSN-4 voters is something being ordered by the court, against the State s wishes, and that courtor dered baseline is being used as the springboard to order more for others. That cannot be right, or any court could order two-step relief, ordering relief for o ne small group, and then leaping to universal coverage as equal protection. Viewed another way, the State is not even classifying voters here: It seeks to reject all provisional ballots cast with no proof of identification, period. This Court said in NEOCH that the Anderson/Burdick test allowed Ohio to impose the minimal burden of a name and signature. Surely the boxes-checking or numberlisti ng in Step 2 is no more onerous. That contrasts with the wrong-precinct nonSSN-voters, who not only were being treated differently from SSN-4 voters, but that treatment violated the underlying right-to-vote principles that the equalCase: 12-4354 Document: 006111500180 Filed: 11/14/2012 Page: 12

11 protection claim was linked to. Here, no violation occurs, regardless of any purported relief granted to the SSN-4 voters. For those reasons, the expansion of the Decree should be stayed or vacated as to non-SSN-voters, regardless of the outcome for SSN-4 voters. Moreover, all of the merits reasons below, in Part B regarding SSN-4 voters, also apply to the non-SSN-4 voters, as other reasons for staying the order as to all. B. The Consent Decree never concerned this issue, and it was not properly modified or clarified, even if purportedly on behalf of SSN-4 voters. None of the court s justifications for the order withstands scrutiny. First, the alleged state-law violation cannot be a basis for a federal order, and in any ev ent, no state-law violation was shown. Second, the Decree did not concern this issue, and the court s purported link between one decree provision and this issue fails. Third, judicial estoppel does not apply. 1. State law, which cannot be the basis for a federal order, does not require the pollworker to fill out Step 2 for the voter. The court s order, and NEOCH s demand, is fundamentally rooted in the claim that Ohio law requires the pollworker to complete Step 2, and that Form 12 B thus improperly shifts that duty to the voter. That is wrong, as Ohio law sens ibly requires a voter to provide an SSN-4 or other identification.1 1 Requiring all provisional voters to provide identification and information is also consistent with the analogous duty on absentee voters to provide identifica tion Case: 12-4354 Document: 006111500180 Filed: 11/14/2012 Page: 13

12 First, even if a state-law violation existed, it would not justify the order her e, as federal courts have no power to order state officers to follow state law. Pennhurst St. Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984); State ex rel. Skaggs v. Brunner, 549 F.3d 468, 471 (6th Cir. 2008). Nor can NEOCH show that requiring voters to perform Step 2 somehow violates federal law, as this Court already held that Steps 1 and 3 are no violation, and Step 2 is no different. NEOCH at *52-53. That leaves the state-law claim, and NEOCH or other plaintiffs had every right to seek such relief in state court, but did not. Second, Form 12-B does not violate Ohio law on its own terms, as Ohio law does not require poll workers to write down social security numbers on the affirmation. To the contrary, Ohio Revised Code 3505.182 mandates that [e]ach individual who casts a provisional ballot under section 3505.181 of the Revised Code shall execute a written affirmation. Section 3505.182 does not prescribe the Affirmation s exact form, but it provides a sample form and instruct s that the actual form shall be substantially as follows. Id. The sample requires the voter to fill in (1) printed name; (2) social security number (last four dig its); (3) date of birth; and (4) signature. Id. The statute even distinguishes information that is mandatory for the voter from information that is completed at the voter s twice (with the application and with the ballot), and on regular in-person voter s to provide ID. See Ohio Rev. Code 3509.03, 3509.04, 3505.18(A). Case: 12-4354 Document: 006111500180 Filed: 11/14/2012 Page: 14

13 discretion. Id. Thus, Ohio law expressly requires a voter to provide her SSN-4, and shifting that duty to the pollworker conflicts with 3505.182. That section s requirement, for a voter to provide her SSN-4, is further confirmed by the statutes governing counting of provisional ballots. Those statu tes provide that a ballot shall not be counted if the voter failed to provide identification, or if the SSN-4 or driver s license number provided does not match the information contained in the statewide voter registration database. Ohio Rev . Code 3505.183(B)(4)(a)(vii) and (viii). Those rules make sense only in light of holding the voter responsible for providing that information. As against the statutes expressly requiring the voter to provide an affirmation and her SSN-4, the court relied solely on one phrase in a different statute, Ohio Revised Code 3505.181(B)(6), and that reliance is misplaced. That section provides that when an individual casts a provisional ballot . . . the appropriate local election official shall record the type of identification prov ided, the social security number information, the fact that the affirmation was execut ed, or the fact that the individual declined to execute such an affirmation, and it provides that [i]f the individual declines to execute the affirmation, the appropriate local election official shall record the individual s name and include that information with the transmission of the ballot. Id. (emphases added). In th e court s view, the phrase election official shall record means that the pollworker, Case: 12-4354 Document: 006111500180 Filed: 11/14/2012 Page: 15

14 not the voter, must complete Step 2 of Form 12-B, the ballot affirmation on the envelope, and that the Form cannot shift that duty to the voter. Reliance on Section 3505.181(B)(6) is mistaken for many reasons.2 First, nothing in the text requires the worker to record that information on the ballot affirmation form itself, as opposed to recording that information separately for recordkeeping. (See, by contrast, R.C. 3505.181(B)(7). Second, as noted above, the statute referring specifically to the affirmation places the duty on the vot er, so if there is any seeming tension between the provisions, the one specifically referring to the affirmation governs as well as the administrative construction provided by the Secretary and his predecessor. Third, common sense and this Court s NEOCH ruling show why any tension must be resolved in favor of the voter s duty. In NEOCH, in affirming relief regarding the wrong-precinct, right-location issue, the Court explained that one could not require the voters to have greater knowledge of their precinct, precinc t ballot, and polling place than poll workers. NEOCH at *38. The court did not expect such omniscience on the part of the voter. Id. The same logic applies here in the other direction: The voter has greater knowledge of her own SSN-4 or driver s license number. The pollworker could complete Step 2 only by asking the 2 NEOCH also cited Ohio Revised Code 3505.181(B)(7) as imposing a pollworker duty, but that reliance is also misplaced. Subsection (B)(7) applies only to voters who have no form of identification, not even an SSN-4, so it cann ot link Ohio law to the Decree s protections of SSN-4. Case: 12-4354 Document: 006111500180 Filed: 11/14/2012 Page: 16

15 voter and taking dictation. (Such dictation could also lead to mistaken recordin g, which would result in not counting the ballot, as the numbers would not match.) Further, it makes little sense to have the voter fill in Step 1, then hand the f orm for the worker to take dictation on Step 2, then have the worker hand the form back to the voter for Step 3. And, although only Steps 1 and 3 were before this Court earlier, it referred to all three steps as involving the form s rather simple instructions. Id. at *52. Having the voter do all three steps tracks the form, the other statutes, and common sense, and the provisional ballot affirmation has always required the vot er to provide the information at issue. In fact, the prior form, which former Secre tary Brunner created and used both before and after she entered into the Consent Decree, also required the voter to provide the information and check the right b ox. Damschroeder Declaration, 2 (R. 352-1, PageID#12732). The court s reading of Ohio law, and its requirement to count ballots with a deficient Step 2, in effect erases Ohio s Voter ID requirement. That is so because ballots with a missing Step 2 will look the same regardless of whether (1) the v oter gave ID but failed to fill in Step 2, or (2) the voter failed to provide ID at a ll. Indeed, one reason a voter may have been required to cast a provisional ballot i n the first place was his failure to provide ID. Counting such ballots, for which no ID has been provided, is not only against Ohio law, but is not justified by the mere Case: 12-4354 Document: 006111500180 Filed: 11/14/2012 Page: 17

16 speculation that some of the ballots deficient in Step 2 represent a failure-torecord ID, as opposed to a failure-to-provide. Nor is any failure to record, if it happ ens, fairly called pollworker error, as this Court has already rejected the notion that workers must perform quality control on voters affirmations. 2. The Decree did not address this issue and provides no basis for converting a state-law objection to a Decree-enforcement issue. The court acknowledged that it could not address state-law problems, (R. 357, 12881), but said that the issue here amounted to a violation of the Decree as well, providing jurisdiction for the court to act. But the Decree does not cover the Step 2 issue, even if it were a state-law problem (which it is not). First, the Decree as a whole covers only SSN-4 voters, so by definition, it does not cover (1) those who fail to provide ID at all, or (2) those who provide other ID, but fail to have Step 2 completed, regardless of whether the failure i s attributed to the voter or worker. NEOCH provides absolutely no basis for assuming, without proof, that a deficient Step 2 indicates a NEOCH voter. At lea st one election law expert, Professor Ned Foley, has noted this mismatch. See Commentary, http://moritzlaw.osu.edu/electionlaw/freefair/index.php?ID=10019 ( To count ballots when no type of ID has been indicated on the form would seem to go well beyond the decree s limited applicability. ) Second, the provision cited, Section III(5)(b)(vii), does not create any pollworker duty as to Step 2, nor does it link any alleged state-law duty to the Case: 12-4354 Document: 006111500180 Filed: 11/14/2012 Page: 18

17 Decree. That Section provides that an SSN-4 voter s provisional ballot may not be rejected if the pollworker did not properly complete the provisional ballot witn ess line and/or the provisional ballot affirmation form except for reasons permitted by the governing statutes. (R. 210, Consent Decree, PageID#4974). The provisional ballot application witness line language referred to a part filled out by the worker in contrast to the voter s part. The affirmation form language likewise refers only to the worker s, not the voter s, part under the old Form 12-B. The final clause, excepting reasons for rejection under the governing statutes, validates rejection for the reasons in Ohio Rev. Code 3505.182, 3505.183(B)(4)(a)(vii) and (viii), namely, failure to complete the SSN part of t he affirmation, failure to provide ID, or providing ID that does not match (as a bl ank does not match the number on file). Moreover, the text of subpart (vii) must be read in light of the opening text of Section III(B) s lead-in, which refers to an SSN-4 ballot. Again, we only know that we are dealing with an SSN-4 ballot if the SSN-4 is listed. The court s view is the ultimate in bootstrapping: We see a blank, assume it was an SSN-4 voter, so apply the protections for SSN-4 voters, and then modify those to forgive the bla nk. 3. Judicial estoppel does not justify the order. Finally, the court erred in applying judicial estoppel. In oral argument, counsel referred to R.C. 3505.181, which requires poll workers to write down the Case: 12-4354 Document: 006111500180 Filed: 11/14/2012 Page: 19

18 ID used in a separate record, not as part of the affirmation. Counsel acknowledg ed that the absence of that record would not invalidate the ballot. But counsel did not admit that the poll worker has a duty to complete the affirmation. In the relevant passage, counsel echoed the statements of NEOCH s counsel: Mr. Berzon suggested to you, for example, that there might still be poll worker error because there is an obligation to record on the form the mode of identific ation used, and, if that s missing, that s a defect in the ballot. (R. 354-2, Transcript, PageID#12777). Counsel continued, in restating NEOCH s voice, that as they say, the obligation to write down the identifying information is imposed upon th e poll worker, not upon the voter. (Id.). And the remainder of the argument shows that counsel explained how any reading of that provision does not translate into an enforcement issue because, among other things, this is a state-law issue. (Id. a t 12777-12797). At worst, the oral statements are ambiguous, and that does not trigger judicial estoppel. Griffith v. Wal-Mart Stores, Inc., 135 F.3d 376, 385 (6th Cir. 1998). Further, any such statement would not reasonably create the reliance needed to trigger judicial estoppel. In that argument, the issue was not subsection (vi i), but subsection (vi), which relieved SSN-4 voters of the duty to complete Steps 1 and 3 properly. This Court had held, in its October 11 decision, that such relief was not justified as a constitutional and injunctive matter for non-SSN-4 voters, and it Case: 12-4354 Document: 006111500180 Filed: 11/14/2012 Page: 20

19 suggested that preserving relief for only SSN-4 voters might create an equal protection violation. Thus, the issue was whether any inequality was best cured by cancelling subsection (vi) or by re-imposing (expanding the Decree) the very rel ief that this Court had just reversed namely, relieving other voters of the duty to print and sign their names. In that context, it is hard to see how the discussio n of subsection (vii), and of the application of Ohio law to Step 2, could have reasonably induced the court s decision to cancel subsection (vi). C. The Court should reject court-ordered rewriting of election law issued post-election but pre-counting. No one doubts that eleventh-hour injunctions changing election laws are strongly disfavored. Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006); SEIU at *10. And changes are no less harmful when premised on modifying a Consent Decree. First, this change was done post-election, not at the last minute. True, provisional-ballot counting does not occur until post-election, but the forms ar e designed pre-election, and are used on Election Day. This form dates to January, and its predecessor had the same concept. The court s order has impossible-toimple ment pre-election effects. It orders that The only circumstances in which the Secretary may reject a provisional ballot for a deficiency in Step 2 of Form 12-B is if: (1) a poll-worker has recorded on the provisional ballot affirmation that the voter is required to return to the county board of elections with proper identification; (2) a poll worker has recorded what identification information the voter must bring; and (3) the voter did not return with the necessary identification . . . . Case: 12-4354 Document: 006111500180 Filed: 11/14/2012 Page: 21

20 Order at 16. That exception is illusory in two respects. It asks the worker to do something she was not trained to do, and to write in the margin, as there is no space for that data. Or it asks the Secretary to have created a different form. Second, if NEOCH had objected to the form earlier, this could have been resolved. The court insisted that NEOCH was not on notice to act earlier, becaus e the November 2 Directive first informed NEOCH that the Secretary planned to apply the form and its consequences to all voters, including SSN-4 voters. But t he form was drafted as a universal one; it makes no provision for handling SSN-4 voters differently. Moreover, that reasoning, even if true, would not apply to a ll the non-SSN-4 voters, who were on notice all year, and did not act yet are the beneficiaries of the Decree s expansion to include them. Finally, plaintiffs moved for relief on Thursday, so the Friday Directive could not have been their first notice. (R. 346, Motion, at 12588). In sum, plaintiffs could have clarified this concern earlier. See SEIU at *1011. Nor is it accurate to attribute the Directive s timing solely to the Secretary , as it was litigation, including the late renewal of the wrong-location injunction demand, that delayed the directive. Case: 12-4354 Document: 006111500180 Filed: 11/14/2012 Page: 22

21 CONCLUSION For the above reasons, the Court should stay the order. Respectfully submitted, MICHAEL DEWINE Ohio Attorney General AARON D. EPSTEIN* *Counsel of Record ERIN BUTCHER-LYDEN Assistant Attorneys General Constitutional Offices Section 30 E. Broad St., 16th Floor Columbus, Ohio 43215 614-466-2872 614-728-7592 fax aaron.epstein@ohioattorneygeneral.gov Counsel for Defendants-Appellants Ohio Secretary of State Jon Husted RICHARD N. COGLIANESE Assistant Attorney General Constitutional Offices Section 30 E. Broad Street, 16th Floor Columbus, Ohio 43215 614-466-2872; 614-728-7592 (fax) richard.coglianese@ohioattorneygeneral.gov Counsel for the State of Ohio Case: 12-4354 Document: 006111500180 Filed: 11/14/2012 Page: 23

22 CERTIFICATE OF SERVICE I certify that a copy of this motion has been served through the court s electronic filing system. Electronic service was therefore made upon all counsel of record on the same day. s/Aaron D. Epstein Aaron D. Epstein Assistant Attorney General Case: 12-4354 Document: 006111500180 Filed: 11/14/2012 Page: 24