Case No IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1, ET AL.

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1 Case: Document: Filed: 10/30/2012 Page: 1 Case No IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1, ET AL., Plaintiffs-Appellees, v. JON HUSTED, IN HIS OFFICIAL CAPACITY AS OHIO SECRETARY OF STATE, ET AL., Defendants-Appellants. On Appeal from the United States District Court for the Southern District of Ohio Case No. 2:12-CV AMICUS BRIEF OF THE COUNTY OF CUYAHOGA, OHIO SUPPORTING APPELLEES OPPOSITION TO THE EMERGENCY MOTION TO STAY INJUNCTION PENDING APPEAL Majeed G. Makhlouf ( ) Joseph W. Boatwright, IV ( ) Cuyahoga County Department of Law 1219 Ontario Street, 4th Floor Cleveland, OH (216) (Telephone) (216) (Facsimile) mmakhlouf@cuyahogacounty.us jboatwright@cuyahogacounty.us Counsel for Amicus County of Cuyahoga, Ohio

2 Case: Document: Filed: 10/30/2012 Page: 2 TABLE OF CONTENTS TABLE OF AUTHORITIES.ii CORPORATE DISCLOSURE STATEMENT...1 INTEREST OF AMICUS..2 AUTHORSHIP OF AMICUS BRIEF...3 ARGUMENT. 4 CONCLUSION...7 CERTIFICATE OF COMPLIANCE.9 CERTIFICATE OF SERVICE 10 i

3 Case: Document: Filed: 10/30/2012 Page: 3 Statutes TABLE OF AUTHORITIES O.R.C Rules Rule Rule Other Sources 2010 U.S. Census Bureau State and County Quickfacts, (last visited September 21, 2012)..2 Cuyahoga County, Ohio Budget in Brief, pdf (last visited October 23, 2012).4 Cuyahoga County 2012 Second Quarter Report (page II-6), %20Rprt.pdf (last visited October 23, 2012).4 Cuyahoga County Board of Elections September 7, 2010 Primary Amended Official Results, US/ officialSummaryAmended.HTM (last visited September 21, 2012)..3 Cuyahoga County Resolution R , US/Legislation/Resolutions/2011/R /R pdf (last visited October 22, 2012)..3, 4 Sample Ballot on the Cuyahoga County Board of Elections web site, (last visited September 21, 2012)..2 ii

4 Case: Document: Filed: 10/30/2012 Page: 4 CORPORATE DISCLOSURE STATEMENT 1 As a chartered county with home rule powers, the County of Cuyahoga, Ohio is a governmental county corporation pursuant to Article X, Section 3 of the Ohio Constitution and Section 1.01 of the Charter of Cuyahoga County. The County is not a subsidiary or affiliate of a publicly owned corporation. Additionally, the County s interest in this matter is not associated with any publicly owned corporation. INTEREST OF AMICUS The County of Cuyahoga (hereinafter the County or Cuyahoga County ), is a political subdivision of the State of Ohio. It is a chartered county pursuant to Article X, Section 3, of the Ohio Constitution with home rule powers. 2 The County is Ohio s largest county with a population of 1,280,122 according to the 2010 U.S. 1 As a political subdivision of the State of Ohio, the County of Cuyahoga is not required to file a corporate disclosure statement under Rule 26.1(a) of the Sixth Circuit Rules if it were a party to this case. Rule 28(c), however, requires all corporate entities, without any exceptions, to file a disclosure statement in an amicus brief like that required of parties by Rule As a chartered county, the County of Cuyahoga is a corporation, albeit a governmental corporation. Out of an abundance of caution, this disclosure statement is included in the Amicus Brief to comply with the express letter of Rule 28(c). 2 While the County appropriates funds to the Cuyahoga County Board of Elections pursuant to O.R.C (A), the Cuyahoga County Board of Elections is a separate entity governed by its own board. This Amicus Brief is filed on behalf of the County itself as governed by its County Executive and County Council and not on behalf of or through coordination with the Cuyahoga County Board of Elections. 1

5 Case: Document: Filed: 10/30/2012 Page: 5 Census. See 2010 U.S. Census Bureau State and County Quickfacts, (last visited September 21, 2012). Of Ohio s 88 counties, Cuyahoga County is home to approximately eleven percent of Ohio s population of 11,536,502. Id. The County has a substantial interest in having wrong-location provisional ballots counted. This Court s ruling on this issue is important because counting wrong-location provisional ballots will have a significant impact in Cuyahoga County because the polling locations for many voters changed since the last Presidential election, approximately 34 percent of Cuyahoga County s citizenry reside in rental housing, and 5,157 homeless citizens above the age of 18 live in the County. Whether these ballots are counted will impact the local elections of the Cuyahoga County Executive and County Council members in addition to other issues, such as County Charter amendments and tax levies. Critically, the County has two Charter amendments on the November 6, 2012 ballot. See Sample Ballot on the Cuyahoga County Board of Elections web site, (last visited September 21, 2012) (Issue 117 (requiring the County to develop and implement biennial operating and capital improvements budgets) and Issue 118 (changing the term of office of the County s Director of Internal Auditing so that it does not coincide with the term of the County Executive). Furthermore, the County Council 2

6 Case: Document: Filed: 10/30/2012 Page: 6 positions are staggered every two years, such that five out of the eleven members will be on the November 6, 2012 general election ballot and the remaining six will be on the November 2014 general election ballot. These elections can be very close and can definitely be impacted by how wrong-location provisional ballots are treated. For instance, in the 2010 primary election for County Council, the Republican primary for County Council District 1 was decided by just 96 votes, and the Democratic Primary for County Council District 3 was decided by 201 votes. See Cuyahoga County Board of Elections September 7, 2010 Primary Amended Official Results, US/ officialSummaryAmended.HTM (last visited September 21, 2012). The County, therefore, has a substantial interest in ensuring that its citizens votes are properly counted because rejection of wrong-location provisional ballots cast by its citizens can improperly impact the outcome of a County election. AUTHORSHIP OF AMICUS BRIEF The undersigned in-house attorneys authored this Amicus Brief, and no party or their counsel contributed any funds toward its preparation. 3

7 Case: Document: Filed: 10/30/2012 Page: 7 ARGUMENT 1) Cuyahoga County appropriately budgeted for the Cuyahoga County Board of Elections and the budget is able to handle dealing with wronglocation provisional ballots. Under Ohio law, counties appropriate the funds for their respective boards of elections, and the boards expenses are paid from the counties treasuries. O.R.C (A). Counties have already adopted their 2012 budgets. Cuyahoga County, for instance, adopted its Budget on December 13, See Cuyahoga County Resolution R , US/Legislation/Resolutions/2011/R /R pdf (last visited October 22, 2012). As part of this budget, Cuyahoga County appropriated $7,297,343 to the Cuyahoga County Board of Elections for the 2012 general election. Id. The County recognized that need for the appropriation of more money for the 2012 Presidential Election. See Cuyahoga County, Ohio Budget in Brief (page 24), pdf (last visited October 23, 2012). The County appropriated an adequate amount of money as the Board of Elections currently has a surplus of $3,911,763 for See Cuyahoga County 2012 Second Quarter Report (page II-6), 4

8 Case: Document: Filed: 10/30/2012 Page: 8 %20Rprt.pdf (last visited October 23, 2012). The argument, therefore, that Cuyahoga County s citizens should be deprived of their constitutional right to vote for budgetary reasons simply has no merit. 2) The lower court fashioned a remedy that will not dilute elections with regard to wrong-location ballots. Critically, the lower court fashioned the remedy with regard to wronglocation ballots in a manner that will not dilute local elections in ordering that: the votes cast on the provisional ballot must be counted in all races and for all issues for which the voter would have been eligible to vote if he or she had cast the ballot in the correct precinct. R. 90, p. 17. In other words, if an eligible Cuyahoga County voter votes provisionally in a location that is outside of his or her County Council district, the voter s vote will not be counted for purposes of the County Council district race, but it will be counted for purposes of the County Executive s countywide election and any other countywide races, such as County Charter amendments and tax levies. If, however, the vote is in the wrong location, but still in the correct County Council district, the vote will count for purposes of both the County Council District race and the countywide races. This is a fair solution that protects citizens 5

9 Case: Document: Filed: 10/30/2012 Page: 9 constitutional voting rights and the integrity of local elections that can turn on a few votes without adversely diluting local elections. 3) The County expects that there will be a rise in wrong-location provisional ballots cast by its citizens in the 2012 general election caused by voter confusion caused by the polling location for many voters changing. On page 19 of their Emergency Motion to Stay Injunction Pending Appeal, Appellants distorts the County s Amicus Brief before the lower court to argue that many voters will intentionally ignore notices about changes to their voting locations from their boards of elections to be able to dilute elections. This distortion couldn t be any more detached from reality. The reality is that in a battleground state like Ohio, voters mailboxes are bombarded with campaign and other election materials. Thus, it is very easy for well-intentioned voters to miss notices from their boards of elections about the change to their polling locations. There is no basis to the State s argument that these voters are somehow malicious and are choosing to vote in a different location to dilute an election. The State does not cite any evidence in the record to this effect. The concern about voters diluting local elections is without merit because the trial court s remedy does not count the ballot downstream and only counts the up-ballot. There simply is no foundation to this dilution argument. Indeed, any ill- 6

10 Case: Document: Filed: 10/30/2012 Page: 10 intentioned voter wishing to dilute a local election this way will find out that their effort is futile under the lower court s remedy. The reality, however, is that it is likely that many more voters will go to the wrong location in the 2012 election because their voting locations had changed through no fault of their own. And this change happened after these voters voted in the 2008 Presidential Election when they last voted. Since many voters only vote in Presidential Elections, voters may arrive to the wrong polling location on November 6, 2012 (because the polling location in the 2008 Presidential Election is not the same as the polling location for the 2012 Presidential Election). At that point, poll workers may notice that a voter is in the wrong polling location and direct the voter to the correct location. Or poll workers during a busy Presidential Election where high-voter turnout is expected may inadvertently fail inform the voter that he or she is voting in the wrong location and ultimately the voter s ballot will not be counted. The lower court s Opinion and Order (R. 90) resolves the wrong-location provisional ballots issues and ensures that the Cuyahoga County citizens ballots are counted. CONCLUSION For all of the foregoing reasons, the Court should deny the Appellees Emergency Motion to Stay Pending Appeal. 7

11 Case: Document: Filed: 10/30/2012 Page: 11 Respectfully submitted, /s/ Majeed G. Makhlouf Majeed G. Makhlouf ( ) Joseph W. Boatwright, IV ( ) Cuyahoga County Department of Law 1219 Ontario Street, 4th Floor Cleveland, OH (216) (Telephone) (216) (Facsimile) Counsel for Amicus County of Cuyahoga, Ohio 8

12 Case: Document: Filed: 10/30/2012 Page: 12 CERTIFICATE OF COMPLIANCE WITH RULE 32 This is to certify that, pursuant to Sixth Circuit Rule 32(a)(7)(C), this brief complies with the type-volume limitation of Sixth Circuit Rule 32(a)(7)(B). Inclusive of the exempted portions identified in Sixth Circuit Rule 32(a)(7)(B)(iii), this brief contains approximately 1,519 words in Times New Roman 14 point font, a proportionally spaced typeface which meets the typeface and type-style requirement of Fed. R. App. P. 32(a)(5) and 32(a)(6), and counted using the Word Count tool in Microsoft Word. /s/ Majeed G. Makhlouf Majeed G. Makhlouf ( ) One of the Attorneys for Amicus County of Cuyahoga, Ohio 9

13 Case: Document: Filed: 10/30/2012 Page: 13 CERTIFICATE OF SERVICE I certify that on October 29, 2012, I caused the forgoing document to be electronically filed in accordance with the Court s Electronic Filing guidelines. Notice of this filing will be sent to the parties by operation of the Court s Electronic Filing system. Parties may access this filing through the system. /s/ Majeed G. Makhlouf Majeed G. Makhlouf ( ) One of the Attorneys for Amicus County of Cuyahoga, Ohio 10