Docstoc

Plaintiffs Motion for Preliminary Injunction

Document Sample
Plaintiffs Motion for Preliminary Injunction Powered By Docstoc
					                  IN THE UNITED STATES DISTRICT COURT
                   FOR THE NORTHERN DISTRICT OF OHIO

                                                    :
THE LEAGUE O F WOMEN   VOTERS OF O HIO , ET. AL.,
                                                    :      Case No.: 3:04 CV 7622
                                                    :
v.                                                  :
                                                    :      Judge: Carr
J. KENNETH BLACKWELL .                              :
                                                    :
                                                    :



          PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION


       Plaintiffs, the League of Women Voters, move under Fed. R. Civ. P. 65 for a

preliminary injunction, granting preliminarily the relief sought in the Complaint. This

motion is supported by the accompanying memorandum.

Dated: October 6, 2004.

                                                    Respectfully submitted,

                                                    s/ Donald J. McTigue
                                                    ______________________________
                                                    Donald J. McTigue, Trial Counsel
                                                    Law Offices of Donald J. McTigue
                                                    3886 North High Street
                                                    Columbus, OH 43214
                                                    Telephone: (614) 263-7000
                                                    Fax: (614) 263-7078
                                                    E-mail:mctiguelaw@rrohio.com
                                                    Ohio Registration No. 0022849

                                                    Attorney for Plaintiffs
                                 Certificate of Service

I hereby certify that on October 6, 2004, a copy of the foregoing Motion for Preliminary
Injunction was filed electronically. Notice of this filing will be sent by operation of the
Court’s electronic filing system to all parties indicated on the electronic filing receipt.
All other parties will be served by regular U.S. mail. Parties may access this filing
through the Court’s system.

                                                     s/ Donald J. McTigue
                                                     ______________________________
                                                     Donald J. McTigue, Trial Counsel
                                                     Law Offices of Donald J. McTigue
                                                     3886 North High Street
                                                     Columbus, OH 43214
                                                     Telephone: (614) 263-7000
                                                     Fax: (614) 263-7078
                                                     E-mail:mctiguelaw@rrohio.com
                                                     Ohio Registration No. 0022849

                                                     Attorney for Plaintiffs
                   IN THE UNITED STATES DISTRICT COURT
                    FOR THE NORTHERN DISTRICT OF OHIO

                                                     :
THE LEAGUE O F WOMEN    VOTERS OF O HIO , ET. AL.,
                                                     :       Case No.: 3:04 CV 7622
                                                     :
v.                                                   :
                                                     :       Judge: Carr
J. KENNETH BLACKWELL .                               :
                                                     :
                                                     :



        PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR
                     PRELIMINARY INJUNCTION


                                    INTRODUCTION


       This motion for emergency relief is brought to halt the Ohio Secretary of State

from illegally nullifying federal law mandating that provisional ballots be provided to

certain categories of voters and that provisional ballots submitted by eligible registered

voters on election day be counted. Absent this Court’s intervention, the Defendant

intends to defy federal law and to disenfranchise thousands of eligible Ohio voters.

       In response to the widespread disenfranchisement that occurred during the 2000

Presidential election, Congress passed the Help America Vote Act of 2002 (“HAVA”),

42 U.S.C. §§ 15301 et seq., to guarantee that this prior travesty of voting justice would

never again occur. To ensure that every individual eligible to vote in an election for

federal office may cast a vote and have that vote counted, HAVA mandates that

“provisional ballots” be provided to two categories of voters, among others, whose

eligibility to vote cannot immediately be confirmed at a polling site: (1) certain first-time

voters who registered by mail and who cannot provide identification on Election Day,


                                              1
and (2) voters who seek to vote at the wrong polling place. Of equal importance, HAVA

requires election officials subsequently to seek to verify the eligibility of the voters who

cast provisional ballots and to count all votes cast on a provisional ballot once the voter’s

eligibility is confirmed.

         In direct defiance of this federal law, the Defendant has directed election officials

not to verify the eligibility of first-time voters who cast provisional ballots but do not

have identification, and not to count their provisional ballots, including those cast by

eligible voters.        If implemented, this directive would turn the provisional balloting

scheme into a meaningless sham, presenting the voter with a decoy ballot while

effectively disenfranchising him or her. In further defiance of federal law, the Defendant

has also directed election officials not even to provide provisional ballots to any voters,

including eligible voters, who seek to vote in polling places other than those assigned to

them by election officials. If implemented, this directive would irreversibly deny eligible

voters the protection of federal law and disenfranchise them.

          Defendant’s attempt to nullify federal law’s “fail-safe voting” safeguards by

administrative fiat must be stopped.                          As demonstrated below, Plaintiffs are

overwhelmingly likely to succeed on the merits of their claims that Defendant’s

directives violate HAVA and will be irreparably harmed if the requested injunction is not

issued.1

          Plaintiffs thus seek by this motion to enjoin the Defendant from illegally (i)

rejecting provisionally ballots cast by eligible first-time voters who registered by mail but

do not provide identification at the polling place on Election Day and (ii) refusing to

1
 While P laintiffs are also likely to suc ceed on the merits o f their feder al constitutio nal claim s, in order to
exped ite conside ration of th is motion for prelim inary relief, P laintiffs do n ot raise those claims on this
motion.


                                                          2
issue provisional ballots to voters who cast provisional ballots in the wrong precincts on

Election Day. The eligibility of these voters can be determined without significant

burden to the State, and HAVA requires that Ohio make that determination rather than

disenfranchising eligible voters. Plaintiffs have already filed a motion to consolidate this

case with Sandusky County Democratic Party et al. v. Blackwell, No. 04-CV-7582, and

would like to adhere to any schedule established in that case so as not to cause any delay.

STATEMENT OF FACTS


A.     The Federal Help America Vote Act Mandating the Issuance and Counting
       of Provisional Ballots

       In the 2000 presidential election, thousands of voters in every State – including

Ohio – were unfairly turned away from the polls without having cast a ballot because poll

workers could not find their names on the official list of eligible voters for a particular

polling place. In many cases, these rejected voters were eligible and properly registered

voters. The National Commission on Election Reform, chaired by former Presidents

Gerald Ford and Jimmy Carter, found that in the 2000 election, administrative errors

effectively disenfranchised thousands of eligible registered voters.         See National

Commission on Election Reform, To Assure Pride and Confidence in the Electoral

Process, at 34 (2001) (hereinafter “Ford-Carter Report”) (Exhibit 1 to the Declaration of

Wendy R. Weiser, dated Oct. 5, 2004 (“Weiser Decl.”)).

       The administrative problems in the 2000 election had a disproportionate impact

on voters who were members of racial minority groups, and on low-income voters. See

General      Accounting        Office,     Elections:      Statistical     Analysis      of

Factors That Affected Uncounted Votes in the 2000 Presidential Election




                                             3
(Weiser      Decl.,    Ex.      2),      at    3       (2001)      (“[C]ounties    with     higher

percentages of minority residents tended to have higher percentages of uncounted

presidential votes, while counties with higher percentages of younger and more educated

residents tended to have lower percentages of uncounted presidential votes.”); see also

House        Committee            on          Government             Reform,        Minori ty

Staff,     Special       Investigations                Division,     Income       and     Racial

Disparities in the Undercount in the 2000 Presidential Election (Weiser

Decl.,      Ex.    3),     at        8    (July         9,    2001 )     ( p e r c e n t age      of

uncounted          votes        in       20        congressional           districts           w i th

low-income/high                minority                populations         were         h i g h e r,

regardless        of     the    type          of    voting      equipment         used,        than

in    congressional                   districts              with      high-income/low

minority populations).

         To prevent future disenfranchisement of eligible voters, the Ford-Carter

Commission recommended that the following two-part procedure be adopted nationwide.

First, every State should replace local voter rolls with a system of statewide voter

registration, with one computerized voter file accessible to local election officials

throughout the State. Second, every State should permit “provisional voting” by any

voter who claims to be qualified to vote in that State. The Commission explained that, in

recommending the adoption of provisional balloting, “we are motivated by a consistent

goal: No American qualified to vote anywhere in her or his state should be turned away

from a polling place in that state.”               (Weiser Decl., Ex. 1, at 35.)            Accord

Caltech/MIT Voting Technology Project, Voting: What Is, Could Be (Weiser Decl., Ex.


                                                   4
4), at 30 (2001) (“estimating that 1.5 million rejected votes of eligible voters could have

been saved in the 2000 presidential election by use of “provisional ballots.”

       A provisional ballot is “a ‘fail safe’ method that can be used when a potential

voter’s registration status is challenged at the precinct.” Id. at 29-30. Provisional voting

allows a voter whose information does not appear on a polling place’s list of registered

voters to cast a ballot that is segregated from the regular ballots and counted later, after

election officials verify the voter’s eligibility. Ordinarily, the voter places a provisional

ballot in an envelope bearing her signature and information about the circumstances of

the provisional vote. After the election, officials use the information on the outside of the

provisional-ballot envelope to research the voter’s eligibility. If they verify that the voter

was eligible to vote, the envelope is opened and the election officials count the votes she

cast for the offices for which the voter was qualified to vote. If the election officials

determine that the voter was not eligible to vote, the envelope remains sealed and the

ballot goes uncounted. Id.

       In order to revive confidence in the voting system after widespread criticism of

the administration of the 2000 Presidential election, Congress passed the Help America

Vote Act of 2002 (“HAVA”), which President George Bush signed into law on October

29, 2002.    HAVA contains a number of provisions to promote voting and election

administration systems that will “be the most convenient, accessible, and easy to use for

voters,” and will “be nondiscriminatory and afford each registered and eligible voter an

equal opportunity to vote and to have that vote counted.” 42 U.S.C. §§ 15381(a)(1), (3)

(goals to be promoted by Election Assistance Commission). Among those provisions are

HAVA’s provisional ballot requirements. As set forth below, HAVA requires every




                                              5
State to implement a system of provisional balloting so that no qualified voter will be

turned away from the polls without being able to cast a meaningful vote by provisional

ballot.

          Congress found that provisional balloting was needed to guarantee that eligible

voters would not be disenfranchised in future elections, as they were in the 2000 election.

As Representative Menendez stated:

             Hundreds, maybe thousands of voters were improperly turned away from the
             polls in the last election, their votes effectively robbed through a careless
             bureaucracy at best, and mal intent at worst. We may never know for sure, but
             we do know that we need provisional voting to prevent this travesty from ever
             occurring again.

150 Cong. Rec. H7227 (daily ed. Dec. 12, 2001) (statement of Rep. Menendez).

Representative Ney, the House sponsor of the bill, explained on the night of the final vote

in the House that the goal of HAVA’s provisional balloting provisions is to prevent the

disenfranchisement of registered voters:

             When this legislation goes into effect, the voting citizens in this country will
             have the right to a provisional ballot, so no voter will be turned away from a
             polling place, no voter will be disenfranchised, just because their name does
             not appear on a registration list.

148 Cong. Rec. H7837 (daily ed. Oct. 10, 2002) (statement of Rep. Ney).

          HAVA mandates that states count provisional ballots if “the individual is eligible

under State law to vote.” 42 U.S.C. § 15482(a)(4). Thus, by requiring that each State

enact the provisional balloting fail-safe mechanism, HAVA defers to the State’s ability to

define voter eligibility, but requires that mere administrative requirements cannot keep an

otherwise eligible voter from voting and having her vote count. As set forth below, an

individual is eligible to vote in Ohio if she is a citizen of the United States, is eighteen or

more years old, has been a resident of the state of Ohio for the thirty days prior to the



                                              6
election in which she seeks to vote, and has been registered to vote anywhere in the State

for the thirty days prior to the election.

B.       Ohio Plan to Implement the Help America Vote Act

         Notwithstanding the broad provisional voting rights guaranteed by HAVA, Ohio

has never amended its statutory scheme to meet HAVA’s mandate. (See Compl. ¶¶ 42-

44.)    Recognizing, however, that significant changes were needed to bring Ohio’s

provisional balloting system into compliance with federal law, in 2003, Defendant

Blackwell submitted to the Federal Election Assistance Commission “A State Plan to

implement the Help America Vote Act of 2002 in accordance with Public Law 107-252,

§ 253(b)” (Weiser Decl., Ex. 5), which was published in the Federal Register on March

24, 2004, 69 Fed. Reg. 14879, 2004 WL 578763.2

         The Ohio State Plan acknowledged that HAVA requires election reform in Ohio

to meet “the more encompassing aim of the Act,” namely, “to invite more voters into the

process to exercise their rights and responsibilities as qualified voters.” (Weiser Decl.,

Ex. 5, at 17.) In furtherance of this overriding goal, the State Plan discussed “[t]he

critical role of provisional voting in election reform,” and called provisional voting “a

way to ensure every eligible voter who shows up at the polls on Election Day can cast a

ballot.” Id. at 33.

         Recognizing that the extant Ohio system already “protects those who changed

their residence,” the State Plan promised that Ohio would be “sensitive” to other voters

whose names do not appear on the voter rolls, such as voters who show up at the polls


2
  The State Plan was submitted to comply with Section 253 of HAVA, as a condition for Ohio’s receipt of
federal fu nds. See 42 U.S.C. § 15403. Among other things, HAVA required each state plan to outline how
the state would use federal funds to comply with the requirements of Title III of HAVA, the title containing
the new provision al ballot requ iremen ts. See, e.g., id. § 15404(a)(1).


                                                     7
having been “incorrectly purged from the voter registration list.” Id. The document

further promised that “the Secretary of State is committed to making sure every voter and

every vote counts.” Id. The document continued:

       Ohio and the Secretary of State, as a matter of public policy, embraces the
       concept that every effort should be made at every board of elections in the state to
       accommodate every voter who, for whatever reason, does not appear on the
       certified list of registered voters in any jurisdiction of the state. Provisional
       voting is a valuable fail-safe mechanism that is an essential component of election
       reform in Ohio.

Id. at 34. As a result, the State Plan promised to ensure “provisional voting policies that

are weighted more toward inclusion in the voting process than challenges and exclusion

in the ballot process.” Id. With respect to provisional ballots for those who cannot meet

the new identification requirements, the State Plan said: “As no voter should be denied

an opportunity to cast a provisional ballot in those circumstances where their name might

not appear on the voter rolls, neither should a voter be denied an opportunity to vote

because of arbitrary and restrictive identification requirements.” Id. at 36.

       Despite the fact that Ohio’s State Plan committed to comply with HAVA’s

provisional ballot requirements, Defendant Blackwell subsequently issued two directives

that completely subvert the protections mandated by federal law.

C.     Improper Directive 2004-07 Issued by the Secretary of State

       On February 20, 2004, Defendant Blackwell issued Directive 2004-07 (Weiser

Decl., Ex. 6) to all County Boards of Elections in Ohio. (See Compl. ¶¶ 53-56.) Among

other things, the directive purports to implement HAVA’s provisional ballot

requirements for individuals who registered to vote by mail after January 1, 2003. It does

no such thing.




                                              8
         Although Directive 2004-07 instructs election officials to issue provisional ballots

to first-time voters who registered by mail and cannot provide identification at the polls

on Election Day,3 it then directs officials not to verify or count any of those ballots.

Specifically, Directive 2004-07 provides that a provisional ballot cast by a first-time

voter who does not show identification will only “be included in the official canvass” if

the voter in fact does provide “acceptable proof of identity either to the board office or to

the precinct election officials by the time the polls close” on Election Day. (Weiser

Decl., Ex. 6, at 3.) If the voter does not provide identification on Election Day, the

Directive mandates that “the ballot cannot be counted.” Id.

         These instructions in Directive 2004-07 effectively nullify the fail-safe voting

provisions of HAVA with respect to a category of voters who are entitled by federal law

to vote by provisional ballot: first-time voters who registered by mail and who cannot

provide identification at the polling place on Election Day. Although these voters will be

issued provisional ballots, the Defendant has directed in advance that their ballots will

not be counted, regardless of whether a voter was eligible to vote in the election. If

implemented, Directive 2004-07 would entirely eviscerate the provisional balloting

scheme, rendering HAVA’s election reforms meaningless and disenfranchising scores of

eligible voters.

D.       Improper Directive 2004-33 Issued by the Secretary of State
         On September 16, 2004, Defendant Blackwell issued Directive 2004-33 (Weiser

Decl., Ex. 7), entitled “Issuing and Processing Provisional Ballots,” to all Ohio County

3
  Directive 2004-07 provides that a first-time voter who registered by mail and did not prov ide a driver’s
license number, the last four digits of his or her social security number, or “acceptable documentary proof
of the applicant’s identity” when “both (1) registering to vote and (2) voting for the first time in person in a
federal election,” may cast a provisional ballot after completing a written affirmation. (Weiser Decl., Ex. 6,
at 3) (emphasis in original). In contrast, HAVA requires first-time voters to provide identification either
when registering to vote or when voting in person or by mail. 42 U.S.C. § 15483(b)(2)(A ).


                                                       9
Boards of Elections. (See Compl. ¶¶ 57-61.) Directive 2004-33 does not even purport to

comply with HAVA.                 Rather, under the guise of an effort to enforce election

administration provisions of Ohio law regarding voting precincts, Directive 2004-33

effectively disenfranchises another category of voters entitled by HAVA to vote by

provisional ballot: eligible voters who appear to vote in precincts other than those

(correctly or incorrectly) assigned to them by election officials.

         Specifically, Directive 2004-33 limits the right to cast a provisional ballot to Ohio

voters who have moved from one precinct to another and who appear to vote in the

correct precinct for the new address. (Weiser Decl., Ex. 7, at 1.) If, however, a voter has

not moved from one Ohio precinct to another and appears to vote at a polling place other

than that assigned by election officials, Directive 2004-33 provides that the voter may not

be given a provisional ballot:

         Before issuing a provisional ballot as provided for under state or federal law, the
         pollworkers must confirm that the voting residence address claimed by the voter
         is located within the area shown on the precinct map and listed on the street
         listing.

         Only after the precinct pollworkers have confirmed that the person is eligible to
         vote in that precinct shall the pollworkers issue a provisional ballot to that person.
         Under no circumstances shall precinct pollworkers issue a provisional ballot to a
         person whose address is not located in the precinct, or portion of the precinct, in
         which the person desires to vote. . . .

Id. In other words, Directive 2004-33 does not permit the issuance of a provisional ballot

to any voter whose residence the pollworker determines to be outside the precinct. Id.4

Thus, unless a voter has moved from one precinct to another and appears to vote in the


4
 If a pollwo rker deter mines th at the voter is not in the co rrect precin ct, the pollw orker is instru cted to
contact the board of elections, and the board, in turn, is instructed to advise the voter of the location of the
correct po lling place. Id. at 2. If a voter cannot or will not travel to the correct polling place or disputes the
board’s determ ination as to the correc t polling pla ce, the po llworke r still may no t allow that v oter to cast a
provision al ballot.


                                                        10
correct precinct for the new address, that voter may not even cast a provisional ballot, let

alone have the ballot counted.

       As set forth below, by denying outright provisional ballots to voters whom

election officials claim appear to vote in the wrong precincts, Directive 2004-33 violates

HAVA’s clear requirement that any voter who claims to be eligible to vote in the

jurisdiction is entitled to cast a provisional ballot. And by preventing many of those

voters from voting at all, Directive 2004-33 further contravenes HAVA’s rules for

counting provisional ballots.

E.     The Injury to Plaintiffs’ Voting Rights

       Plaintiff the League of Women Voters of Ohio is a non-profit membership

organization devoted to promoting political responsibility through informed and active

participation of citizens in government, with 3,100 members eligible to vote in Ohio.

Aff. of E. Scott Britton, Oct. 1, 2004, ¶¶ 3, 4. Plaintiff Ohio AFL-CIO is a federation of

labor unions operating within the State of Ohio and is composed of local unions,

affiliated committees, state and local councils, joint boards, district councils, whose

membership totals more than 800,000 working men and women in Ohio, including

members eligible to vote in every county. Aff. of Pierrette M. Talley, Oct. 1, 2004, ¶¶ 3,

4. Plaintiff the Association of Community Organizations for Reform Now (“ACORN”)

is a membership organization of low and moderate-income families, which focuses on

community organizing in low-income communities. Decl. of Catherine M. Gall, October

4, 2004, at ¶¶ 3, 4. Plaintiff People for the American Way Foundation (“PFAW”) is a

non-profit membership organization that seeks to foster freedom of thought, expression

and religion, a sense of community and tolerance and compassion for others, including




                                            11
through public education and voter registration. Aff. of Vicky L. Beasley, Oct. 4, 2004, ¶

3. PFAW has 15,00 member in Ohio, including 500 in the northeast Ohio/Toledo area.

Id. ¶ 4. Plaintiff Ohio Council 8, American Federation of State, County and Municipal

Employees, AFL-CIO (“Ohio Council 8”) is a non-profit labor organization that

represents over 43,000 employees of cities, counties, hospitals, universities and boards of

education throughout Ohio, including 7,300 in Northwest Ohio, and works to improve

the rights of Ohio’s workers. Aff. of Patricia A. Moss, Oct. 5, 2004 (“Moss Aff.”), ¶¶ 2,

4. Plaintiff OAPSE/AFSCME is a non-profit labor organization that represents over

38,000 employees of public schools, public libraries, Head Start agencies and Boards of

Mental Retardation and Developmental Disabilities and works to improve the lives of

working men and women. Aff. of Joseph P. Rugola, Oct. 5, 2004 (“Rugola Aff.”), ¶¶ 2,

4. Plaintiff the Coalition of Black Trade Unionists is a national non-profit membership

organization of black trade unionists with eight chapters across the State of Ohio, and

represents more than 1,500 members in Ohio. Plaintiff A Philip Randolph Institute is a

national non-profit membership organization of black trade unionists with eight chapters

in Ohio and represents approximately 500 members in Ohio. Plaintiff the Coalition of

Homelessness and Housing in Ohio (COHHIO) is a non-profit coalition of 600

organizations and individuals across Ohio committed to ending homelessness and

promoting decent, safe, fair and affordable housing for all, with a focus on low-income

people and those with special needs. Aff. of Bill Faith, Oct. 4, 2004 (“Faith Aff.”), ¶¶ 3,

4. Plaintiff Project Vote is a non-profit organization with offices in Toledo, Ohio and

elsewhere in the state, whose mission is to increase civic participation among low-




                                            12
income and minority citizens through voter education, registration, and mobilization

efforts. Aff. of Nakita K. Jones, Oct. __, 2004, ¶ 3.

       The membership organization Plaintiffs bring this action to enjoin the

disenfranchisement of their members resulting from Defendants’ illegal acts, which will

occur absent this Court’s intervention. Through this action, all Plaintiffs further seek to

avert the ongoing frustration of their organizational purposes, weakening of their political

advocacy efforts, and diversion of their organizational resources that has resulted from

Defendant’s actions.

                                      ARGUMENT


       I.      Standards on This Motion

       In determining whether to issue a preliminary injunction under Rule 65 of the

Federal Rules of Civil Procedure, a court must consider (1) whether the movant has

established a strong or substantial likelihood of success on the merits; (2) the irreparable

harm that could result to the movant if the injunction does not issue; (3) the possibility of

substantial harm to others if the injunction is issued; and (4) whether the public interest

would be served by issuing the injunction. See Hamad v. Woodcrest Condo. Ass’n, 328

F.3d 224, 230 (6th Cir. 2003) (quoting Nightclubs, Inc. v. City of Paducah, 202 F.3d 884,

888 (6th Cir. 2000)). The elements are factors to be balanced against each other; each

element need not be satisfied to issue a preliminary injunction. See Dayton Area Visually

Impaired Persons, Inc. v. Fisher, 70 F.3d 1474, 1480 (6th Cir. 1995) (quoting In re

DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985)). Here, the elements are

easily met.




                                             13
II.    Plaintiffs Have Demonstrated a Clear Likelihood of Success on the Merits of
       Their Action

       A.     Defendant’s Instructions Not to Issue or Count Certain Provisional
              Ballots Violate and Are Preempted by Federal Law

       Plaintiffs are likely to succeed on their claim that Directives 2004-07 and 2004-33

violate HAVA and therefore are preempted by federal law.

       Under the Supremacy Clause of the United States Constitution, “state laws that

‘interfere with, or are contrary to the laws of congress, made in pursuance of the

constitution’ are invalid.” Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 604

(1991) (quoting Gibbons v. Ogden, 22 U.S. (9 Wheat) 1 (1824)). Thus, it is well

established that Congress may pre-empt state law, even in an area of traditional state

regulation. See Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000).

“[E]ven if Congress has not occupied the field, state law is naturally preempted to the

extent of any conflict with a federal statute.” Id.; accord Ass’n of Banks in Ins. v.

Duryee, 270 F.3d 397 (6th Cir. 2001) (quoting Lawrence County v. Lead-Deadwood Sch.

Dist. No. 40-1, 469 U.S. 256, 260 (1985)); Bibbo v. Dean Witter Reynolds, Inc., 151 F.3d

559 (6th Cir. 1998). Indeed, where it is “physically possible to comply with both” the

challenged state law and under conflict preemption analysis, the federal law, a state law

will be preempted if it “stands as an obstacle to the accomplishment and execution of the

full purposes and objectives of Congress, as manifested in the language, structure and

underlying goals of the [federal law].” Id. at 563. Thus, a state law or regulation “is

preempted if it interferes with the methods by which the federal statute was designed to

reach th[at] goal.” Duryee, 270 F.3d at 404 (quoting Int’l Paper Co. v. Ouellette, 479

U.S. 481, 494 (1987)).    When a federal statute preempts a state law or regulation,




                                           14
injunctive relief against state officers is appropriate. See, e.g., Qwest Corp. v. City of

Santa Fe, 380 F.3d 1258, 1266 (10th Cir. 2004); Burgio & Campofelice, Inc. v. New York

State Dep’t of Labor, 107 F.3d 1000 (2d Cir. 1997); Bud Antle, Inc. v. Barbosa, 45 F.3d

1261, 1269 (9th Cir. 1995); Bunning v. Kentucky, 42 F.3d 1008, 1012 (6th Cir. 1994).

       Because Defendant’s instructions for handling provisional ballots in both

Directives 2004-07 and 2004-33 directly contravene the requirements of HAVA and

stand as an obstacle to Congress’ goals in enacting HAVA, federal law preempts the

Directives’ instructions, and this Court must enjoin them.

       1.      Directive 2004-07’s Requirement that First-Time Registrants Provide
               Identification as a Condition of Having their Provisional Ballots
               Counted Violates HAVA

       In stark violation of HAVA, Directive 2004-07 instructs election officials to

discard valid ballots that are cast by eligible first-time voters who register by mail but

who do not provide photo identification or documentary proof of residence at the polling

place on Election Day. This is not permissible under HAVA, which requires provisional

ballots to function as a “fail-safe voting” mechanism. HAVA expressly mandates that

provisional ballots must be verified and then counted if the voters are eligible under State

law to vote in that election. Moreover, the legislative history of HAVA makes clear that

the purpose of HAVA’s provisional ballot provisions is “to ensure that every eligible

American who goes to vote gets to vote and that every vote cast counts.” 148 Cong. Rec.

S726 (daily ed. Feb. 13, 2002) (statement of Sen. Schumer); see also 148 Cong. Rec.

S711 (daily ed. Feb. 13, 2002) (statement of Sen. Dodd) (“By passing this bipartisan

election reform bill, the Senate will help ensure that every single eligible American has

the equal opportunity to both cast a vote and, of course, to have their vote counted.”).




                                            15
The fail-safe voting provisions in HAVA ensure that burdensome identification

requirements and mere administrative requirements cannot invalidate the ballot of a voter

who is eligible to vote under State law. Because it is inconsistent with those provisions,

Directive 2004-07 violates and is preempted by HAVA.

       Although HAVA requires certain first-time voters who register by mail to submit

identification either with their applications for registration or at the polling place, see 42

U.S.C. § 15483(b)(2)(A), in order to ensure that voters who cannot meet those

requirements are not thereby disenfranchised, HAVA explicitly includes “fail-safe

voting” provisions for those voters. HAVA’s “fail-safe voting” provisions require that

any first-time voter who registered by mail and “who does not meet the [identification]

requirements” is allowed to cast a provisional ballot. Id. § 15483(b)(2)(B)(i) and (ii); see

also id. § 15482(a) (any voter whose eligibility is questioned at the polling place “shall

be permitted to cast a provisional ballot”). Those ballots are to be counted in accordance

with Section 302(a) of HAVA. Id. § 15483(b)(2)(B)(i) and (ii).

       Section 302(a) of HAVA provides that States must permit an individual “to cast a

provisional ballot” if the voter declares that he or she is (i) registered to vote in the

jurisdiction and (ii) eligible to vote in an election for federal office.       42 U.S.C. §

15482(a). Once a voter casts a provisional ballot, HAVA requires election officials to

“transmit” the ballot or the voter information contained in the accompanying written

affirmation “to an appropriate State or local election official for prompt verification.” Id.

§ 15482(a)(3). If the election official determines that “the individual is eligible under

State law to vote,” HAVA provides that the individual’s provisional ballot “shall be

counted as a vote in that election.” Id. § 15482(a)(4) (emphasis added). Accordingly,




                                             16
eligibility to vote under State law is the only permissible precondition for counting votes

cast in a provisional ballot.

        The provision of identification is not a requirement of eligibility under Ohio law

to vote. Rather, as discussed infra, at 18-19, an individual is eligible to vote under Ohio

law if he or she is a citizen of the United States, is eighteen or more years old, has been a

resident of the state of Ohio for the thirty days prior to the election in which he or she

seeks to vote, and has been registered to vote anywhere in the State for the thirty days

prior to the election. See Ohio Const. art. V, § 1, Ohio Rev. Code Ann. § 3501.01. In

fact, no provision of Ohio law requires any class of voters, including first-time voters

who registered by mail, to show identification, let alone makes the provision of

identification a condition of voter eligibility. Prior to the issuance of Directive 2004-07,

Ohio did not require any class of voters to present identification at the polling place on

Election Day as a condition of voting or having their votes counted.

        In enacting HAVA’s identification provisions, Congress specifically provided for

the use of provisional ballots as a safeguard in order to prevent the new requirements

from disenfranchising eligible and registered voters. As Senator Dodd, one of the law’s

main sponsors, explained in the Senate debates on the HAVA identification requirement:

        [E]ven if a voter does not meet the new Federal requirements for first-time voters
        to verify their identity, or for new registrants to provide their drivers license
        number, or the last four digits of their Social Security number, if that voter
        otherwise meets the requirements as set out in State law for eligibility, the State
        shall count that ballot pursuant to State law.

148 Cong. Rec. S10508 (daily ed. Oct. 16, 2002) (statement of Sen. Dodd).

        Moreover, in debates concerning HAVA’s identification requirements, a number

of members of Congress expressed concern that an inflexible identification requirement




                                             17
would disproportionately burden minority or low-income voters. See, e.g., 148 Cong.

Rec. S1227 (daily ed. Feb. 27, 2002) (statement of Sen. Landrieu) (“History has shown

that requiring photo identification or certain other documents most significantly impacts

minority voters.”); 148 Cong. Rec. S1224 (daily ed. Feb. 27, 2002) (statement of Sen.

Schumer) (“The intent of this legislation is to take people, particularly those who live in

the corners of America who do not fly airplanes and use their credit cards all the time but

rather people who may not have a driver’s license, who may not have a utility bill, and

allow them to vote, our most sacred right.”); 148 Cong. Rec. S10502 (daily ed. Oct. 16,

2002) (ACLU letter dated Oct. 9, 2002) (“As a disproportionate number of racial and

ethnic minority voters, the homeless, as well as voters with disabilities and certain

religious objectors, do not have photo identification nor the financial means to acquire it,

the burden of this requirement would fall disproportionately and unfairly upon them.”).

The ACLU letter read into the record during the Senate debates noted that, given the

costs involved in obtaining identification or documentation of residence,5 an inflexible

identification requirement would amount to a de facto poll tax. Id. In part as a result of

concerns over this disparate impact, Congress added the provisional ballot requirement to

HAVA’s new identification provision to prevent the new identification requirements

from becoming an absolute barrier to voting, “thereby avoiding the potential

disenfranchisement of minority voters.” 148 Cong. Rec. S10504 (daily ed. Oct. 16, 2002)

(statement of Sen. Dodd).




5
 In Ohio, the cost of a driver’s license ranges from $19.25 to $24.00, and the cost of a state identification
card ran ges from $7.50 to $8.50. See Ohio Bureau of Motor Vehicles, “BMV License and Registration
Fees Effective January 1, 2004,” available at http://bmv.ohio.gov/01012004_BMV _Fees.htm (lastvisited
Oct. 5, 2004).


                                                      18
        Directive 2004-07’s blanket refusal to count provisional ballots nullifies these

“fail-safe voting” mechanisms in HAVA. Under the instruction outlined in Directive

2004-07, the criteria making an individual eligible to receive a provisional ballot are the

very criteria used to deny his or her vote. That instruction, if implemented, would result

in the exact type of wrong that Congress sought to avert in enacting the fail-safe voting

provisions.   The harm is especially egregious when voters are deceptively handed

provisional ballots even though election officials have determined in advance that under

no circumstances will those ballots be counted. Accordingly, the instruction violates

HAVA, is preempted by HAVA, and must be enjoined.

        2.      Directive 2004-33’s Instruction Not to Issue Provisional Ballots to
                Voters in the Wrong Precincts Violates HAVA.

        Directive 2004-33 violates HAVA by denying voters who appear to vote in the

wrong precincts the right, secured by HAVA, to cast provisional ballots. Furthermore,

by preventing many of those voters from voting at all, Directive 2004-33 further violates

HAVA’s requirement that the ballots cast by such voters be counted if they are eligible to

vote in that election.

        HAVA requires each state to permit an individual whose name does not appear on

the “official list of eligible voters for the polling place” or whom a state official claims is

not eligible to vote for any reason “to cast a provisional ballot” if the individual declares

that he or she is “a registered voter in the jurisdiction” and is eligible to vote in that

election for federal office. 42 U.S.C. § 15482(a). Since a voter whom an election

official claims is at the wrong polling place is unquestionably an individual whose name

does not appear on the “official list of eligible voters for the polling place” or whose




                                              19
eligibility is questioned by an election official, that voter is entitled under HAVA to cast

a provisional ballot upon making the required affirmation.

       Although HAVA does not define the term “jurisdiction” used in the provisional

voter’s affirmation, Congress directed that HAVA be construed in harmony with the

National Voter Registration Act of 1993 (“NVRA”), which does define jurisdiction. See

42 U.S.C. § 15545(a)(4). NVRA uses the term “registrar’s jurisdiction” to refer to the

geographic scope of the unit of government that maintains the voter registration rolls.

See 42 U.S.C. § 1973gg-6(j); 148 Cong. Rec. S2532 (daily ed. Apr. 11, 2002) (statement

of Sen. Dodd) (“It is our intent that the word ‘jurisdiction,’ for the purposes of

determining whether the provisional ballot is to be counted, has the same meaning as the

term ‘registrar’s jurisdiction’ in section 8(j) of the National Voter Registration Act.”). In

Ohio, where voter registration is maintained by each county, see Ohio Rev. Code Ann. §§

3501.11(t), (U), and where voter eligibility is determined on the basis of residence in the

States, see Ohio Const. art. V, § 1; Ohio Rev. Code Ann. § 3501.01, “jurisdiction”

necessarily refers to a geographic unit at least on the level of a county. Thus, nothing in

the affirmation required of provisional voters changes the conclusion that a citizen who

appears to vote at the wrong precinct is entitled under HAVA to cast a provisional ballot.

       Once a voter who appears to vote in the wrong precinct casts a provisional ballot,

HAVA then obligates States to transmit the provisional ballots to appropriate election

officials for verification, id. § 15482(a)(3), and to “count[] as a vote in that election” the

provisional ballot cast by any individual who is eligible under state law to vote, id. §

15482(a)(4).




                                             20
        Under Ohio law, the precinct requirement is not a condition of voter eligibility.

Rather, the only conditions of voter eligibility under Ohio law are those authorized by

Article V, Section 1 of the Ohio Constitution, which provides: “Every citizen of the

United States, of the age of eighteen years, who has been a resident of the state, county,

township, or ward, such time as may be provided by law, and has been registered to vote

for thirty days, has the qualifications of an elector, and is entitled to vote in all elections.”

That constitutional provision delegates to the Ohio legislature the authority to provide for

durational residency requirements in “the state, county, township, or ward,” but not in the

precinct. Under the authority of Article V, the Ohio legislature provided that a person

must be a resident of the state for thirty days immediately preceding the election to be a

qualified elector. Ohio Rev. Code Ann. § 3503.01. Ohio law has no durational residency

requirement in a county, township, or ward for an individual to be eligible to vote. Thus,

under Ohio law, an individual is eligible to vote if he or she is a citizen of the United

States, eighteen or more years old, a resident of the state for the thirty days prior to the

election, and registered to vote anywhere in the State for the thirty days prior to the

election.

        Thus, under HAVA and the voter eligibility provisions of Ohio law (incorporated

by HAVA), not only must the state allow voters to cast provisional ballots in the wrong

precinct, but the state may not use precinct requirements as a basis for refusing to count

votes cast by provisional ballot for all races in which a registered voter was eligible to

vote.   Since Directive 2004-33 violates both of these requirements of federal law,

Plaintiffs are likely to – indeed, will – succeed on the merits of their claim seeking to

strike this illegal Directive.




                                               21
IV.    Plaintiffs Will Suffer Irreparable Harm Absent an Injunction

       Plaintiffs’ members are seeking to exercise a right that the Supreme Court has

consistently declared a fundamental political right, preservative of all rights – the right to

vote. See Dunn v. Blumstein, 405 U.S. 330, 336 (1972); Kramer v. Union Free Sch. Dist.

No. 15, 395 U.S. 621, 626 (1969); Reynolds v. Sims, 377 U.S. 533, 562 (1964); Yick Wo

v. Hopkins, 118 U.S. 356, 370 (1886). “No right is more precious in a free country than

that of having a voice in the election of those who make the laws under which, as good

citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is

undermined.” Wesberry v. Sanders, 376 U.S. 1, 17 (1964). Because Directives 2004-07

and 2004-33 completely deny the right to vote and to have one’s vote counted to

thousands of eligible voters, including Plaintiffs’ members, Plaintiffs will be irreparably

harmed absent an injunction.

       Directive 2004-07’s instruction not to count the votes cast by first-time voters

who register by mail but do not provide identification will disenfranchise many eligible

voters, and will disproportionately affect low-income voters. Many individuals eligible

to vote in Ohio, including Plaintiff’s members, do not possess photo identification or

documentary proof of residence because they are low-income, unemployed, or without

fixed residence. See, e.g., Faith Aff. ¶ 4 (most homeless members of COHHIO do not

have identification or proof of residence). Thus, the requirements of the Directive 2004-

07 not to count those provisional ballots unless the voters present identification are

particularly insidious, because many voters will be without the means to cure the

purported defects in their provisional votes.




                                              22
         The costs or administrative hassles of obtaining photo identification can be an

obstacle for low-income voters. See supra note 5 (costs of obtaining state identification

in Ohio). Indeed, a requirement that voters expend money to obtain state identification

as a condition of voting would amount to an impermissible poll tax. See U.S. Const.

Amend. XXIV, 1. While Directive 2004-07 allows voters to provide other acceptable

documentary proof of residence, many eligible voters do not have such proof. See, e.g.,

Faith Aff. ¶ 4.

         The injury to Plaintiffs’ members from Directive 2004-07 is also particularly

acute because its burden falls squarely and disproportionately on low-income and

minority voters.6 Both the Ford-Carter Commission and a 2001 Task Force on the

Federal Election found that identification requirements would disproportionately burden

low-income voters. Ford-Carter Report at 32 (“5-7% of adults do not possess a driver’s

license or other photo identification, and are disproportionately poor and urban”); John

Mark Hansen, Verification of Identity, Task Force on the Federal Election System at 4

(July 2001) (“[T]o require [photo identification] for voting would be to impose an

additional expense on the exercise of the franchise, a burden that would fall

disproportionately on people who are poorer and urban.”). Moreover, in the debates over

the passage of HAVA, Congress expressed concern that inflexible identification or

documentary proof of residence requirements would disproportionately burden minority

and low-income voters. See supra, at 16-17. It is precisely because Congress realized


6
  There is “cause for serious concern” where the state’s action “results in a greater negative impact on
group s defined by tradition ally suspec t criteria.” Black v. McGuffage, 209 F. S upp. 2d , 889, 89 9 (N.D . Ill.
2002) (discussing burden on A frican-American and Latino vo ters); see also Auerba ch v. Retta liata, 765
F.2d 35 0, 354 (2 d Cir. 198 5) (noting that Supre me Co urt subjects to strict scrutiny sta te laws that p rohibit
identified class of persons from voting). Likewise, an otherwise reasonable restriction will trigger greater
scrutiny w hen the im pact on v oting righ ts is related to the resource s of the affe cted vote rs. See Bullock v.
Carter, 405 U.S. 134, 144 (197 2).


                                                        23
that such requirements could disproportionately disenfranchise minority and low-income

voters that HAVA provides for the issuance of provisional ballots to voters who cannot

present such identification. Id. The nullification of this safeguard will irreparably harm

the voting rights of many of Plaintiffs’ members in Ohio and will disproportionately

burden the voting rights of minority and low-income voters. Only by counting the votes

properly cast by provisional ballot will Ohio accord “the equal dignity owed to each

voter” required by the fundamental right to vote. Bush v. Gore, 531 U.S. 98, 104 (2000).

       Similarly, there is no question that Directive 2004-33’s instruction not to provide

provisional ballots to voters appearing in the wrong precincts will disenfranchise eligible,

registered voters – that is, voters, including Plaintiffs’ members, who satisfy the state

eligibility requirements – and exact the severest possible burden on their right to vote.

The precinct requirements in this case will not, and in many cases, cannot, be met by

thousands of otherwise eligible voters. In past elections in Ohio, many individuals have

been unable to vote in their assigned polling places, whether because of last-minute

precinct reassignment, inability to determine the correct polling place, lack of a fixed

residence, or inability to travel. See, e.g., Aff. of Rose Boutagy, October 1, 2004, at ¶ 7

(elderly voter unable to vote in 2000 election because election officials told her,

incorrectly, that she was registered at a different polling place); Aff. of Susan Gwinn,

Sept. 30, 2004 (“Gwinn Aff.”), ¶ 11 (many provisional votes cast in wrong precincts

were determined by Athens County Board of Elections to have resulted from pollworker

error). Indeed, it is inevitable that eligible voters will show up in the wrong precincts this

year, as many voters are still unable to determine their correct polling locations. See,

e.g., Aff. of Tammy K. Lang, October 2, 2004, at ¶ 4 (voter unable to determine her




                                             24
correct polling place after moving); Moss Aff. ¶ 7 (many voters registered by Ohio

Council 8 are not informed of the precinct locations at which they may vote); Rugola Aff.

¶ 7 (same with respect to voters registered by OAPSE/AFSCME).

       Furthermore, in 2001, Ohio engaged in a statewide redistricting, redrawing all

state and federal legislative district lines. As a result, county boards of elections were

required to alter many of their precinct boundary lines in order to accommodate the new

legislative districts. Thus, a substantial number of Ohio voters have been assigned to

different precincts than they were in the 2000 elections. Thus, many Ohio voters who

seek to cast a vote at the polling place to which they were assigned in the 2000 election

will arrive at a polling place other than their newly assigned one.

       Redirecting those voters to different polling places will not prevent the injury to

their voting rights. Many individuals, particularly low-income individuals, do not have

easy access to means of transportation to travel to a new polling place. See, e.g., Gwinn

Aff ¶ 10 (students who do not have a means of transportation to get to their polling place

will be disenfranchised). And since a large portion of voters seek to vote at the end of

the day after work, many voters will not have sufficient time to reach a new polling place

before the polls close.

       Obviously, no monetary award can compensate for the unwarranted denial of an

individual’s right to cast a vote for the candidate of his choice and to have that vote

counted in the final election results. American Civil Liberties Union v. Taft, No. 02-

3924, -- F.3d --, 2004 WL 2147021, at *2 (6th Cir. Sept. 27, 2004) (reversing district

court’s denial of preliminary injunction where ACLU demonstrated, inter alia, that its

members were threatened with imminent denial of their right to vote); Montano v. Suffolk




                                             25
County Legislature, 268 F. Supp. 2d 243, 261 (E.D.N.Y. 2003) (“An abridgement or

dilution of the right to vote constitutes irreparable harm.”) (citing Elrod v. Burns, 427

U.S. 347, 373 (1976) (plurality opinion) (loss of First Amendment freedoms, for even

minimal periods of time, unquestionably constitutes irreparable injury)).

       The Plaintiff organizations themselves have also suffered and will continue to

suffer irreparable injury if this Court does not enjoin the challenged instructions in

Defendant’s Directives. See Elrod, 427 U.S. at 373. With each of their members’ votes

lost, Plaintiffs lose not only their own votes but also the concomitant strength in

advocating in the political arena for their policy priorities. See, e.g., Rugola Aff. ¶¶ 5, 9;

Moss Aff. ¶¶ 5, 9; see also Eu v. San Francisco County Democratic Cent. Comm., 489

U.S. 214, 224 (1989); Tashjian v. Republican Party of Conn., 479 U.S. 208, 214 (1986)

(an organization’s “attempts to broaden the base of public participation in and support for

its activities is conduct undeniably central to the exercise of the right of association”)

(citing Democratic Party v. Wisconsin, 450 U.S. 107 (1981)); ACLU, 2004 WL 2147021

at *2-*3; Nat’l Prisoners Reform Ass’n v. Sharkey, 347 F. Supp. 1234, 1237 (D.R.I.

1972) (“Deprivation of the First Amendment rights of the members of plaintiff

organization is in and of itself irreparable injury.”); cf. McCloud v. Testa, 97 F.3d 1536,

1552 (6th Cir. 1996) (“Political association is at the core of the First Amendment, and

even practices that only potentially threaten political association are highly suspect.”);

NAACP Anne Arundel County Branch v. City of Annapolis, 133 F. Supp. 2d 795, 800-801

(D. Md. 2001). Moreover, the challenged provisions have nullified and will continue to

nullify a substantial part of Plaintiffs’ voter education, registration, and mobilization




                                             26
efforts, causing irreparable frustration of Plaintiffs’ policy goals. Cf. ACLU, 2004 WL

2147021 at *3.

V.     Others Will Not Suffer Substantial Harm if an Injunction Is Issued

       It is hard to imagine what harm to others could justify refusing to allow an

eligible and registered voter to cast a vote and have that vote counted. But that is

essentially what Defendant’s instructions do. Directive 2004-07 instructs voting officials

to provide provisional ballots to certain eligible, registered voters and then to refuse to

count them, in violation of federal law. Directive 2004-33 instructs election officials not

to allow certain eligible, registered voters to cast provisional ballots at all, in violation of

federal law. Compliance with HAVA’s mandate that those voters be allowed to cast

provisional ballots and that the ballots of those eligible to vote be counted, on the other

hand, cannot be deemed “substantial harm to others.”

        Indeed, compliance with HAVA itself would pose little burden for Ohio’s

election officials. Because of the existing requirements of the Ohio election law, it

would require only a minimal administrative burden for election officials to determine

the eligibility of a voter who does not provide identification or who has cast a provisional

ballot even in the wrong precinct. Ohio has never found it necessary to use identification

requirements as an absolute prerequisite to voting by any group, including first-time

voters who register by mail, and thus the state has long relied on other means of verifying

a voter’s eligibility. Other states, such as Florida, use a procedure of matching the

signature on a provisional ballot to the voter’s signature on his or her registration card to

confirm the identity of a provisional voter who does not have documentation. See Fla.

Stat. §§ 101.043, 101.048(2).




                                              27
         With respect to voters who appear in the wrong precincts, well before the

enactment of HAVA and up to 2004, at least some Ohio counties counted provisional

ballots cast by voters in the wrong precincts. See, e.g., Aff. of Steve Harsman, Sept. 28,

2004 (“Harsman Aff.”), ¶5 ; Gwinn Aff. ¶¶ 2-3, 11-12.                              Montgomery County, for

example, used the following procedure when a voter cast a ballot in the wrong precinct:

County election officials would first determine the voter’s eligibility by checking the

voter’s registration form. If the voter was registered to vote in Ohio, was a U.S. citizen

and was eighteen years of age on Election Day, County election officials would

determine the voter to be eligible to vote in all federal, state and countywide races and

would count the votes cast by provisional ballot in those races. If the voter also cast a

vote in a local race which impacted an area of the county in which the voter did not

reside, election officials would determine the voter to be ineligible to vote in that race

and would not count the vote for that race. Harsman Aff. ¶ 6. Athens County used a

similar procedure for counting provisional ballots cast by students at off-site voting

locations rather than the precincts in which they resided. Gwinn Aff. ¶¶ 3, 12. Neither

County found the procedure burdensome in past elections, id. ¶ 13; Harsman Aff. ¶ 8,

and neither experienced problems with voter fraud in connection with that procedure. Id.

¶ 7.

          While protecting fair elections and reducing voter fraud is undoubtedly a

legitimate goal of elections regulation, the refusal to provide or count provisional ballots

is not rationally related to reducing voter fraud.7 This is especially so because, in the
7
  In the constitutional context, even the otherwise compelling interests of preventing fraud and protecting
the integrity of the voting process do no t justify a state practice without an estab lished threat to those
interests, nor do they justify a state resp onse that is n ot narrow ly tailored to protect tho se interests. See
Lerman v.Bd. of Elections, 232 F.3 d 135, 1 49 (2d C ir. 2000) ( city’s practic e held un constitution al despite
asserted interest in preventing fraud where city was unable to establish “demonstrable threat to the
integrity” o f process) , cert. denied, 533 U .S. 915 (2 001). M oreove r, a “State ha s a less impo rtant interest in


                                                         28
State of Ohio, there is no history of fraud by individual voters. Further, Ohio has

numerous other statutory provisions in place to protect the integrity of the election

process and to protect against voter fraud.8

         In short, there is no danger of substantial (or even minimal) harm to others from

allowing voters to cast provisional ballots and counting the ballots cast by those who are

registered and eligible to vote in Ohio.

VI.      The Public Interest Mandates the Grant of a Preliminary Injunction

         The public interest is also clearly advanced by granting the requested equitable

relief. The public interest weighs strongly in favor of counting every vote properly cast

by an eligible voter. In contrast, Defendant’s interest in limiting the rights of voters to

cast provisional ballots frustrates the stated purpose of HAVA to empower citizens to

vote and participate in the democratic process.                 Far from harming Defendants, this

request ensures that whatever action Defendants take in connection with the November 4,

2004 election results will comply with federal and Ohio law and that the final election

results for the State of Ohio will accurately reflect the votes cast by all eligible Ohio

voters. Finally, because Defendant will not suffer any monetary loss as a result of the

entry of preliminary injunctive relief, a bond is not required under Federal Rule of Civil

Procedure 65(c).

                                            CONCLUSION




regulating Presidential elections than statewide or local elections, because the outcome of the former will be
largely determined by voters beyond the State’s boundaries.” Anderson v. Celebrezze, 460 U.S. 780, 795
(1983).
8
  These include safeguards aga inst dual voting, crim inal penalties against voters w ho subm it false
statements in voter registrations, requirements for the investigation of suspected fraudulent voting,
mandatory rem oval of the names of improp erly registered voters from the voters rolls, and signature
matching o f Election Day voter signatures aga inst signatures on vo ter registration cards, amo ng others.


                                                     29
       For the foregoing reasons, we respectfully request that the Court enter an order

prohibiting the enforcement of (i) Directive 2004-07’s instructions not to count

provisional ballots cast by eligible first-time voters who registered by mail but do not

provide photo identification or documentary proof of residence at the polling place on

election day and (i) Directive 2004-33’s instructions not to provide provisional ballots to

eligible registered voters in the wrong precincts.

       Dated: October 6, 2004

                                                     Respectfully submitted,

                                                     s/ Donald J. McTigue
                                                     ______________________________
                                                     Donald J. McTigue, Trial Counsel
                                                     Law Offices of Donald J. McTigue
                                                     3886 North High Street
                                                     Columbus, OH 43214
                                                     Telephone: (614) 263-7000
                                                     Fax: (614) 263-7078
                                                     E-mail:mctiguelaw@rrohio.com
                                                     Ohio Registration No. 0022849

                                                     Attorney for Plaintiffs


ON THE BRIEF:

Wendy R. Weiser                                      David Elson
Deborah Goldberg                                     Orin Snyder
BRENNAN CENTER FOR JUSTICE                           Monica Youn
AT NYU SCHOOL OF LAW                                 Matthew Kutcher
161 Avenue of the Americas, 12th Floor               Miriam Vogel
New York, NY 10013                                   MANATT, PHELPS & PHILLIPS,
LLP
Phone: 212-998-6130                                  500 Fifth Avenue, 38th Floor
wendy.weiser@nyu.edu                                 New York, NY 10110
                                                     Phone: 212-382-0200

OF COUNSEL:




                                             30
H. Ritchey Hollenbaugh (0001072)              Melvin S. Schwarzwald (0027159)


Carlile Patchen & Murphy LLP                  SCHWARZWALD & McNAIR LLP

366 East Broad Street                         616 Penton Media Building

Columbus, Ohio 43215                          1300 East Ninth Street

Phone: 614-628-0804                           Cleveland, Ohio 44114-1503

Fax: 614-221-0216                             Phone: 216-566-1600
hrh@cpmlaw.com                                Fax: 216-566-1814

                                              mschwarzwald@smcnlaw.com

Elliot M. Mincberg                            Judith A. Browne
Vicky L. Beasley                              Elizabeth S. Westfall
People for the American Way Foundation        ADVANCEMENT PROJECT
2000 M Street, NW, Suite 400                  1730 M Street, N.W., Suite 910
Washington, DC 20036                          Washington, DC 20036
Phone: 202-467-2382                           Phone: 202-728-9557
Fax: 202-293-2672
vbeasley@pfaw.org

R. Sean Grayson (0030641)                     Michelle R. Evans (0075124)
Kimm A. Massengill-Bernardin (0059292)        OAPSE/AFSCME Local 4
Ohio Council 8, AFSCME, AFL-CIO               6805 Oak Creek Drive
6800 North High Street                        Worthington, Ohio 43085-2512
Columbus, Ohio 43229                          Phone: 614-809-4770
Phone: 614-841-1918                           Fax: 614-890-3540
Fax: 614-430-7960                             mevans@oapse.org
grayson@ohcouncil8.org




                                         31
                                 Certificate of Service

I hereby certify that on October 6, 2004, a copy of the foregoing Motion for Preliminary
Injunction was filed electronically. Notice of this filing will be sent by operation of the
Court’s electronic filing system to all parties indicated on the electronic filing receipt.
All other parties will be served by regular U.S. mail. Parties may access this filing
through the Court’s system.

                                                     s/ Donald J. McTigue
                                                     ______________________________
                                                     Donald J. McTigue, Trial Counsel
                                                     Law Offices of Donald J. McTigue
                                                     3886 North High Street
                                                     Columbus, OH 43214
                                                     Telephone: (614) 263-7000
                                                     Fax: (614) 263-7078
                                                     E-mail:mctiguelaw@rrohio.com
                                                     Ohio Registration No. 0022849

                                                     Attorney for Plaintiffs




                                            32
                                           AFFIDAVIT
                                in Support of Plaintiffs’ Complaint



DISTRICT OF COLUMBIA            :

       BEFORE ME, THE UNDERSIGNED AUTHORITY, personally appeared VICKY L.

BEASLEY, who after being duly sworn and deposed, states the following:

1.     My name is appeared VICKY L. BEASLEY. I am a citizen of the United States and

       more than eighteen years old.

2.     I am Deputy National Field Director with People For The American Way Foundation

       (“PFAWF”). As part of my responsibilities as Director, I am familiar with PFAWF’s

       structure and mission, and I am responsible for overseeing activist and membership

       activities. PFAWF is governed by its Bylaws, of which a true and accurate copy is

       attached as Exhibit A.

3.     PFAWF is a national organization founded to meet the challenges of discord and

       fragmentation among citizens with an affirmation of “the American Way,” meaning

       freedom of thought, expression and religion, a sense of community, and tolerance and

       compassion for others. PFAWF reaches out to all Americans to affirm that in our

       society, the individual still matters. One of the ways PFAWF accomplishes its mission is

       through the education and registration of voters.

4.     Nationally, PFAWF represents over 600,000 activists and members and supporters. In

       Ohio, PFAWF represents over 15,000 members, activists and supporters, with nearly

       500 in the northeast Ohio/Toledo area.

                                                         s/Vicky Beasley
                                                     Vicky L. Beasley


Sworn to and subscribed before me this 4th day of October , 2004.


s/Anne F. Walter                Anne F. Walter
Notary Public                   Notary Public, District of Columbia
My commission expires:          My Commission Expires 11-14-2006
                            AFFIDAVIT OF ROSE BOUTAGY
                                  In Support of Plaintiffs’
                              Motion for Preliminary Injunction
State of Ohio      )       ss
County of Cuyahoga )

         I, ROS E BO UTA GY, a fter be ing du ly sw orn, d o dep ose an d volu ntarily
state:

         1.     I am seventy two years old and currently reside at 10530 Clifton
         Boulevard, #106, Cleveland, Ohio 44102. I have been living at my
         current address for over two years. Prior to moving to Clifton Boulevard,
         I reside d at 10 801 P arkh urst D rive in Clev eland , Ohio .

2.       Approximately two months ago, after seeing a television announcement
         about voter registration, I called the telephone number stated in the
         anno unce men t and r eque sted a voter registr ation fo rm. S hortly
         afterw ards, I r eceive d a re gistratio n form , filled it ou t, and p rom ptly
         mailed it back to Columbus, Ohio, using the pre-addressed stamped
         envelope that came with the form. I listed my current address on the
         form and a lso m y pre vious addr ess.

3.       Approximately one month ago, because I had not received any
         information from the B oard of Elections that my vo ter registration form
         had been processed, I filled out a second voter registration form in front
         of Dave’s Supermarket at 3565 Ridge Road, Cleveland, Ohio. I listed my
         current address and previous address on the form. I gave the form
         back to the p erson who was r egiste ring p eople to vote at the s uper mark et.
         That p erson was n ot an e mplo yee o f the B oard of Elec tions b ut rath er, a
         volun teer fo r a com mun ity reg istration organ ization . The v olunte er said
         he w ould d eliver m y form to the C uyah oga C ounty Boar d of E lection s.

4.       Because of some long-standing health problems, I am confined to a
         whee lchair. It take s me h ours to tr avel any wher e by the comm unity
         responsive transit system. I also may have to have surgery in the future.
         For all of these reasons, I decided to vote an absentee ballot in the
         upcoming election. A few days after I filled the registration form at Dave’s,
         I began calling the Cuyahoga County Board of Elections to request an
      absentee ballot. When I first talked to a worker at the Board of Elections, she
     told me that I was listed as living on Detroit Avenue at 114th Stree t. I told
     her that I had never lived on Detroit at 114th and that I wanted to have
     my address updated. She told me that I had to come down to the Board
     of Elec tions in perso n with identif ication to ma ke an y cha nge o f add ress.
     I told her that I did not think I should have to provide identification and
     that it was very difficult for me to trav el down town to the Board of
     Elections. She told me again that I had to come down to the Board with
     the ide ntificatio n to up date m y add ress.



5.   Over the past two or three weeks, I have called the Cuyahoga County
     Board of Elections six times to correct my address and to obtain an
     absentee ballot but each time I could never obtain answers to my
     questions, or obtain an absentee ballot application. Finally, I called a
     telephone number on a leaflet I received from the registration volunteer at
     Dav e’s. I sp oke to a wo man nam ed Ju dy w ho told me s he w ould m ail
     me another registration form and an absentee ballot application to fill out
     and mail to the Board of Elections. I received the registration form from
     Judy, filled it out with both my current and previous addresses and
     maile d it to th e Cu yaho ga C ounty Boar d of E lection s on S eptem ber 28 ,
     2004. Th e next d ay I rece ived an other re gistration f orm, m y fourth , with bo th
     my current address and previous address, filled out the absentee ballot
     application, and mailed both completed forms to the Board of Elections on
     September 30.

6.   I still do not know if I am registered to vote; if my address has been updated
     or if I will rece ive an ab sentee b allot.

7.   In 2000, after attempting to enter a change of address with the Board of
     Elections in Cuyahoga County. The person I spoke with then told me
     that I wa s register ed at an addre ss at wh ich I had never lived. W hen I
     told her that had never been m y addr ess, she to ld me th at I wou ld have to
     com e dow ntow n to th e Boa rd of E lection s to ha ve the addr ess ch ange d.
     Because of health concerns I had at the time, I was unable to make the
     trip to downtown Cleveland to enter my change of address, and then
     could not vo te in th e 2000 electio n.
8.      The information above is true and accurate to the best of my knowledge and
        belief.




        FURTHER AFFIANT SAYETH NAUGHT




                                       s/Rose Boutagy
                                      Rose Boutagy




        Sworn to and subscribed in my presence this   1st    day of October,
2004.



                                         s/Todd M. Smith
                                                 Nota ry Pu blic



                                      My co mm ission ha s no ex piration d ate
                                            Section 147.04 R.C.
STATE OF OHIO                :
COUNTY OF FRANKLIN           :

       BEFORE ME, THE UNDERSIGNED AUTHORITY, personally appeared E. SCOTT

BRITTON, who after being duly sworn and deposed, states the following:

1.     My name is E. SCOTT BRITTON. I am a citizen of the United States and more than

       eighteen years old.

2.     I am the Executive Director of the League of Women Voters of Ohio (“LWVO”). As part

       of my responsibilities as Executive Director, I am familiar with the LWVO’s structure and

       mission, and I am responsible for overseeing membership figures.

3.     The LWVO is an organization operating within the State of Ohio and is affiliated with the

       League of Women Voters of the United States (“LWVUS”). The LWVO promotes

       political responsibility through informed and active participation of citizens in government

       and acts on selected governmental issues. The LWVO does not support or oppose any

       political party or candidate. LWVO is governed by its Bylaws from which true and

       accurate copies of excerpts are attached as Exhibit A.

4.     Nationally, the LWVUS has a membership of approximately 70,000-80,000. In the State

       of Ohio, the LWVO has approximately 3,100 members who meet the qualifications set

       forth by Ohio law for voting in the 2004 general election and who desire to cast votes

       and have those votes counted.


                                                       s/ E. Scott Britton
                                                    E. Scott Britton




Sworn to and subscribed before me this 1st day of October , 2004.


s/Kimm A. Massengill
Notary Public                Kimm A. Massengill, Attorney at Law
                             Notary Public, State of Ohio
My commission expires:       My commission has no expiration date. Section 147.03 R.C.
                                         AFFIDAVIT
                              in Support of Plaintiffs’ Complaint

STATE OF OHIO                 :
COUNTY OF FRANKLIN            :

       BEFORE ME, THE UNDERSIGNED AUTHORITY, personally appeared BILL FAITH,
who after being duly sworn and deposed, states the following:
1.     My name is appeared BILL FAITH. I am a citizen of the United States and more than
       eighteen years old.
2.     I am the Executive Director for the Coalition on Homelessness and Housing in Ohio
       (“COHHIO”). As part of my responsibilities as Executive Director, I am familiar with
       COHHIO’s structure and mission, and I am responsible for overseeing membership
       activities. COHHIO is governed by its by-laws, from which true and accurate copies of
       excerpts are attached as Exhibit A.
3.     COHHIO is a coalition of organizations and individuals committed to ending
       homelessness and promoting decent, safe, fair, affordable housing for all, with a focus
       on assisting low-income people and those with special needs. COHHIO was founded in
       October of 1994 through a merger of the Ohio Housing Coalition and the Ohio Coalition
       for the Homeless.
4.     COHHIO has 600 member organizations throughout the State of Ohio, with 35 member
       organizations in the northeast Ohio/Toledo area. COHHIO represents Ohio’s homeless
       and low income individuals who often move and change addresses. The homeless
       usually do not have any sort of state identification and have no government checks or
       utility bills and are subject to being turned away at the voting polls if they cannot
       produce an identification with the address at which they are registered.




                                                           s/Bill Faith
                                                      Bill Faith


Sworn to and subscribed before me this 4th day of October , 2004.


s/ Paul G. Wilkins                Paul Geoffrey Wilkins, Attorney at Law
Notary Public                     Notary Public, State of Ohio
My commission expires:            My Commission Has No Expiration Date, Section 147.03 R.C.
                                        AFFIDAVIT
                             in Support of Plaintiffs’ Complaint



STATE OF OHIO                :
COUNTY OF FRANKLIN           :

       BEFORE ME, THE UNDERSIGNED AUTHORITY, personally appeared CATHERINE

M. GALL, who after being duly sworn and deposed, states the following:

1.     My name is appeared CATHERINE M. GALL. I am a citizen of the United States and

       more than eighteen years old.

2.     I am the Head Organizer for Columbus ACORN. As part of my responsibilities as Head

       Director, I am familiar with ACORN’s structure and mission, and I am responsible for

       overseeing membership activities. ACORN is governed by its Constitution, from which

       true and accurate copies of excerpts are attached as Exhibit A.

3.     Ohio ACORN is affiliated with, and part of, the Association of Community Organizations

       for Reform Now (“ACORN”). ACORN is the nation’s largest community organization of

       low and moderate-income families, with more than 150.000 member families organized

       into 800 neighborhood chapters in 65 cities across the country. In Ohio, ACORN

       represents more than 1, 050 member families, with 150 in the Toledo area alone.

4.     ACORN focuses its grass-roots organizing efforts in low- and moderate-income

       communities through direct action, negotiation, legislation, and voter participation. The

       socioeconomic conditions of ACORN’s members often requires them to make frequent

       changes of residence and many of them are first time voters who registered to vote by

       mail.

                                                        s/Catherine M. Gall
                                                    Catherine M. Gall

Sworn to and subscribed before me this 4th day of October , 2004.


s/Peter M. McLinden          Peter M. McLinden, Attorney at Law
Notary Public                Notary Public, State of Ohio
My commission expires:       My commission has no expiration date. Section 147.03 R.C.
                        AFFIDAVIT OF SUSAN GWINN
                             In Support of Plaintiffs’
                         Motion for Preliminary Injunction


     I, Susan Gwinn, after being duly sworn, do depose and voluntarily state:

1.   I am the current Chair of the Athens County Board of Elections, hereafter
     ACBOE. I have been a member of the ACBOE since 1998. I have been the Chair
     of the ACBOE since March 1, 2000.

2.   The ACBOE Office is not large enough to handle large numbers of provisional
     voters on Election Day. In 1996 Ohio University students who wanted to vote
     provisionally stood in line outside the ACBOE Office in poor weather for about
     an hour on Election Day and the Board of Elections had no ability to bring them
     in from the elements. After this happened the ACBOE voted to establish an off-
     site voting location, which is considered a part of the ACBOE Office. The first
     off-site voting location was established by the ACBOE in the Athens County
     Courthouse in the year 1998.

3.   Students who attend Ohio University reside all across Athens County. Rather
     than being required to travel to the precincts in which they resided to vote,
     students were instructed to utilize the Courthouse polling place and to vote a
     provisional ballot. Poll workers working the off-site voting location for the
     ACBOE Office were specifically trained to process provisional ballots. The
     Courthouse off-site voting location was used for the 1998, and 1999 elections. As
     a result, few errors were made in the processing of provisional ballots cast by
     students.

4.   In 2000, the ACBOE began its practice of establishing the off-site ACBOE voting
     location on the Ohio University campus to facilitate the processing of votes cast
     by students on Election Day. This location is called Baker Center and is the
     student union at Ohio University. The ACBOE moved to Baker Center because
     90% of our provisional voters were Ohio University Students. Since 2000,
     students have been directed and encouraged to vote at Baker Center. Poll
     workers working at the Baker Center off site location have been trained to
     process provisional ballots cast by students. The poll workers at Baker Center do
     not process any other voters.

5.   The off-site ACBOE voting location at Baker Center has a hard T-line wired to the
     ACBOE Office. The Athens County Board of County Commissioners approved
     earlier this year the expenditure of additional funds for the ACBOE s budget to
     purchase additional equipment to ensure the speedy processing of provisional
      ballots. This equipment could not be used at the individual polling locations at
      Ohio University. There are 10 student precincts at Ohio University and we
      would have to purchase the same amount of equipment for all 10 precincts
      instead of sharing it among precincts at Baker Center.

6.    On September 16, 2004, Ohio Secretary of State Kenneth Blackwell issued
      Directive 2004-33. This directive requires all voters to cast ballots within
      precincts in which they reside and prohibits Boards of Elections from
      distributing provisional ballots to or counting the provisional ballots cast by
      voters voting in other precincts.

7.    As a result of Directive 2004-33, the ACBOE is concerned that it no longer can
      maintain its off-site office at Baker Center to allow students of Ohio University to
      cast provisional ballots on Election Day, and that instead, students must be
      directed to vote at polling places in the precincts in which they reside.

8.    If students are required to vote in precincts other than Baker Center, the number
      of errors in processing student ballots will increase. Poll workers will be
      processing both regular voters and provisional voters, as opposed to the majority
      of Ohio University students voting provisional being processed by poll workers
      who are trained and have experience handling provisional voting at Baker
      Center.

9.    In past elections some students have voted provisionally at their new polling
      located as they are permitted to do. However, the number of errors committed
      by poll workers at those locations is much higher than at Baker Center.

10.   Students who must vote at off campus precincts across Athens County but who
      do not have a means of transportation to get to their polling place will be
      disenfranchised.

      11.    In prior elections, poll workers at polling locations other than Baker
      Center have been trained to inform Athens County voters who appear at the
      wrong polling place of the location of their correct polling place. Many times a
      poll worker has taken a provisional ballot at the wrong polling location. In the
      past, the ACBOE considered any provisional ballot cast in the wrong precinct to
      have resulted from poll worker error. This has been true even in cases where the
      voter has been informed of their correct polling location but has insisted on
      voting a provisional ballot in the precinct in which the voter appeared. The
      Board of Elections has always counted provisional ballots cast in the wrong
      precinct.
12.   If a voter appeared at the wrong polling place and cast a provisional ballot, the
      ACBOE would count the ballot for any race in which the voter was eligible to
      vote. Provisional ballots would always be counted for any federal, statewide or
      countywide race provided the voter was registered to vote in Ohio, was a U.S.
      citizen and was eighteen years of age on Election Day. Ballots would not be
      counted for those races which affected an area of the county in which the voter
      did not reside. Since provisional ballots are not counted on election night this
      has not been a problem.

13.   This procedure of counting the provisional ballots of voters who vote in the
      wrong precinct has been used by the ACBOE since 1998. It would not be
      burdensome for the ACBOE to utilize this same procedure for the November 2,
      2004 election. To do otherwise, would disenfranchise Athens County voters who
      want to cast a ballot in important federal, statewide and countywide races and
      who are eligible to do so.

14.   If the ACBOE is not permitted to take provisional ballots at the Athens County
      Board of Elections and Baker Center we will have a difficult time administering
      provisional voters and likely to lead to more errors than the prior system of
      counting provisional ballots.         The chance of poll worker error will be
      substantially increased as poll workers will have to quickly determine which
      ballot a voter is eligible to cast based on their residence and to find a copy of that
      ballot to provide to voter. Regular voters will have to wait in line with
      provisional voters while it is determined the voter is at the correct location,
      holding up all voters. This will lead to long lines and huge delays.

15.   The information above is true and accurate to the best of my knowledge and
      belief.

      FURTHER AFFIANT SAYETH NAUGHT

                                                  s/Susan Gwinn
                                                         Susan Gwinn

      Sworn to and subscribed in my presence this       30th   day of September, 2004.

                                                   s/ Sherry Coon
                                                          Notary Public

                                         Sherry D. Coon
                                         Notary Public, State of Ohio
                                         My Commission Expires Feb. 14, 2006
                                         Commission Recorded in Athens County
STATE OF OHIO     )
COUNTY OF MONTGOMERY       )

                          AFFIDAVIT OF STEVE HARSMAN
                               In Support of Plaintiffs’
                           Motion for Preliminary Injunction

I, Steve Harsman, after being duly sworn, do depose and voluntarily state as follows:

1.    I am currently employed by the Montgomery County Board of Elections, hereinafter
      MCBOE, in the position of Deputy Director. I have been in my current position for
      five years.

2.    Prior to becoming Deputy Director of the MCBOE, I served as a member of the
      MCBOE from approximately 1991 to 1995. In addition, I held the position of
      Supervisor of Registration with the MCBOE from approximately 1995 to 1999.

3.    As a result of my fifteen years of experience with the MCBOE, I am familiar with the
      current and past practice of the MCBOE and have assisted the MCBOE direct
      numerous federal, state and local elections over my tenure with the MCBOE.

4.    On September 16, 2004, Ohio Secretary of State Kenneth Blackwell issued
      Directive 2004-33. Directive 2004-33 prohibits the MCBOE from counting the ballot
      of any voter in Montgomery County who, through poll worker error or voter error,
      presents himself or herself at the wrong precinct polling location and is given and
      casts a provisional ballot.

5.    Prior to the issuance of Directive 2004-33, the MCBOE counted the ballots of
      provisional voters who for whatever reasons presented themselves in the wrong
      precinct polling location.

6.    The following procedure was used by the MCBOE to determine whether and how
      provisional ballot would be counted: First the MCBOE would determine the voter’s
      eligibility by checking the voter’s registration form. If the voter was a qualified
      elector, the MCBOE would determine the voter to be eligible to vote in all federal,
      state or countywide local races and would count the provisional ballot in those
      races. If the voter also cast a ballot in a local race which impacted an area of the
      county in which the voter did not reside, the MCBOE would determine the voter to
      be ineligible to vote in that race and would not count the ballot for that race.
      ineligible and the ballot would not be counted for that race.

7.    During the fifteen years in which I worked at the MCBOE, there were no problems
      or complaints of voter fraud in connection with that procedure for counting
      provisional ballots.
8.   It would not pose any additional hardship on the MCBOE to utilize the same
     procedure for the upcoming November 2, 2004 election in order to count the ballots
     of voters who, for whatever reason, present themselves in the wrong precinct polling
     location and who cast a provisional ballot.

8.   I strongly believe that the provisional ballots of voters who vote in the wrong precinct
     should be counted in all federal, statewide and countywide races in order to give
     every citizen of Montgomery County a voice in determining the outcome of any race
     for which the voter is eligible to cast a ballot.

9.   The information above is true and accurate to the best of my knowledge and belief.




     FURTHER AFFIANT SAYETH NAUGHT



                                               s/Steve Harsman
                                              Steve Harsman



     Sworn to and subscribed in my presence this 28th day of September, 2004.


                                             s/Drucilla I. Stewart
                                                Notary Public


                                         My Commission Expires on March 8, 2008.
                         AFFIDAVIT OF TAMMY K. LANG
               In Support of Plaintiffs’ Motion for Preliminary Injunction


I, TAMMY K. LANG, after being duly sworn, do depose and voluntarily state the
following:

1.    My name is Tammy K. Lang. I am over 18 years of age, having been born on
      December 14, 1968, and I am a U.S. citizen.


2.    I have been living at my current address of 3459 West 50th DN, Cleveland, Ohio
      44102 since May of 2004. My previous address was 3164 West 71st Street,
      Cleveland, Ohio 44012.


3.    On or about May 29, 2004, I completed and mailed a voter registration form to
      the Board of Elections in Cuyahoga County, Ohio, to change my address. I
      listed both my current and former addresses on the form.


4.    To date, I have not received any notice from the Board of Elections confirming
      my change of address and advising of my correct polling location.




                                        FURTHER AFFIANT SAYETH NAUGHT




                                           s/Tammy K. Lang
                                        Tammy K. Lang




Sworn to and subscribed before me on this 2nd day of    October , 2004.


s/Todd M. Smith           Todd M. Smith, Attorney at Law
Notary Public             Notary Public - State of Ohio
My commission expires:    My commission has no expiration date. Section 147.03 R.C.
                               AFFIDAVIT OF PATRICIA A. MOSS
                                     In Support of Plaintiffs’
                                 Motion for Preliminary Injunction
State of Ohio        )
County of Franklin   )

      I, PATRICIA A. MOSS, after being duly sworn, do depose and voluntarily state,


      1.     I am the President of Ohio Council 8, American Federation of State, County and

             Municipal Employees, AFL-CIO, (hereinafter Ohio Council 8, AFSCME, AFL-

             CIO) which is a Plaintiff in this case. I am also a registered voter in Ohio and

             reside at 9583 Duncan Plains Road, Johnstown, Ohio, 43031. I submit this

             declaration in support of Plaintiffs’ motion for preliminary injunction.



      2.     Ohio Council 8, AFSCME, AFL-CIO is a labor organization that represents

             public and not-for-profit workers across the State of Ohio. Members of Ohio

             Council 8 are employed by cities, counties, hospitals, universities and boards of

             education. Ohio Council 8, AFSCME, AFL-CIO represents over 43,000 members

             statewide and 7300 members in Northwest Ohio.



       3.    Ohio Council 8 has eight regional offices, including an office located at 420 South

             Reynolds Road, Toledo, Ohio. Ohio Council 8, AFSCME, AFL-CIO employs

             over eighty employees across the state.



       4.    Ohio Council 8, AFSCME, AFL-CIO engages in lobbying and political

             organizing across the state of Ohio to fight for workers rights, civil rights and

             social justice.
5.   Ohio Council 8, AFSCME, AFL-CIO has historically undertaken initiatives to

     register its members to vote prior to each national and state-wide election. These

     initiatives are undertaken to build the collective voice of our union in our fight for

     workers rights, civil rights and social justice.



6.   In 2004, Ohio Council 8, AFSCME, AFL-CIO undertook such a voter registration

     drive. Over the past several months more than 1900 members of Ohio Council 8,

     AFSCME, AFL-CIO have registered to vote for the first time.



7.   Given the processing backlog at county boards of elections, many of our members

     have not yet learned whether they are registered to vote and/ or have not been

     informed of the precinct locations at which they need to cast their ballots.



8.   Ohio Council 8, AFSCME, AFL-CIO is harmed in specific ways by Directive

     2004-33. Ohio Council 8, AFSCME, AFL-CIO’s members who show up at the

     wrong precinct to cast a ballot will be disenfranchised. This injury can not be

     redressed after the election is complete.



9.   If Directive 2004-33 is implemented, Ohio Council 8, AFSCME, AFL-CIO

     would also suffer the loss of critical votes cast by its members for those

     candidates who espouse strengthening workers rights, civil rights and who fight

     for social justice. Ohio Council 8, AFSCME, AFL-CIO would also lose the total
       strength of its collective voice to improve the lives of working men and women

       we represent.



10.    The information above is true and accurate to the best of my knowledge



FURTHER AFFIANCE SAYETH NAUGHT




                                           s/ Patricia A. Moss
                                           Patricia A. Moss, President




Sworn to and subscribed in my presence this ___5th__ day of October, 2004.



                                           s/Candace L. Reynolds_______________
                                           Notary Public


                                           My commission expires on 11-26-04
                  AFFIDAVIT OF JOSEPH P. RUGOLA
                         In Support of Plaintiffs’
                     Motion for Preliminary Injunction
STATE OF OHIO      :      ss.
COUNTY OF FRANKLIN :

     I, JOSEPH P. RUGOLA, after being duly sworn, do depose and voluntarily state,


     1.     I am the Executive Director of the Ohio Association of Public School Employees,

            (OAPSE) Local 4, AFSCME, AFL-CIO, (hereinafter OAPSE/AFSCME, Local 4)

            which is a Plaintiff in this case. I reside at 4771 Powderhorn Lane, Westerville,

            Ohio 43081. I am registered to vote in Ohio. I submit this declaration in support

            of Plaintiffs’ motion for preliminary injunction.



     2.     OAPSE/AFSCME Local 4 is a labor organization representing over 38,000

            employees of public schools, public libraries, Head Start agencies and Boards of

            Mental Retardation and Developmental Disabilities across the State of Ohio.



     3.     OAPSE/AFSCME Local 4 has six regional offices across the state of Ohio.

            OAPSE/AFSCME Local 4 employs over ninety employees.



     4.     OAPSE/AFSCME Local 4 engages in grass roots lobbying and political activity

            across the state of Ohio to fight for the rights of OAPSE/ASFCME Local 4's

            members and for working families in this State.



     5.     In the past, prior to federal and statewide elections, OAPSE/AFSCME Local 4 has

            engaged in statewide efforts to registers its members and their families to vote.
     The purpose of the registration effort is to build the collective voice of our union

     to enhance our ability to win justice on the job for our members and in our

     communities for working families.



6.   In the spring and early summer of this year, OAPSE/AFSCME Local 4 began an

     extensive statewide voter registration effort among its members and their families.

     Over that period of time more than 1250 members of OAPSE/AFSCME Local 4

     registered to vote for the first time.



7.   Given the processing backlog at county boards of elections, many of our members

     have not yet learned whether they are registered to vote and/ or have not been

     informed of the precinct locations at which they need to cast their ballots.



8.   OAPSE/AFSCME Local 4 will be adversely impacted in a number of ways if

     Directive 2004-33 is implemented. Members of OAPSE/AFSCME Local 4 who

     show up at the wrong precinct to cast a ballot will be disenfranchised. This injury

     can not be redressed after the election is complete.



9.   If Directive 2004-33 is implemented, OAPSE/AFSCME Local 4 will suffer the

     loss of critical votes cast by its members for those candidates who support

     workers rights and other issues of importance to our members. OAPSE/AFSCME

     Local 4 will also lose the strength of its collective voice to improve the lives and

     communities of our members and working families across Ohio.
10.    The information above is true and accurate to the best of my knowledge



FURTHER AFFIANCE SAYETH NAUGHT




                                             s/ Joseph P. Rugola
                                            JOSEPH P. RUGOLA




Sworn to and subscribed in my presence this __5th__ day of October, 2004.



                                            s/ Michelle R. Evans
                                           Notary Public


                                           My commission has no expiration date
                                                 Section 147.07 R.C.
STATE OF OHIO                 :
COUNTY OF FRANKLIN            :

       BEFORE ME, THE UNDERSIGNED AUTHORITY, personally appeared PIERRETTE M.

TALLEY, who after being duly sworn and deposed, states the following:

1.     My name is PIERRETTE M. TALLEY. I am a citizen of the United States and more

       than eighteen years old.

2.     I am the Secretary-Treasurer of the Ohio AFL-CIO. As part of my responsibilities as

       Secretary-Treasurer, I am familiar with the Ohio AFL-CIO’s structure and mission, and I

       am responsible for overseeing membership figures.

3.     The Ohio AFL-CIO is a federation of labor unions operating within the State of Ohio and

       is affiliated with the American Federation of Labor and Congress of Industrial

       Organizations (“AFL-CIO”). The Ohio AFL-CIO is composed of local unions, organizing

       committees, state and local councils, joint boards, district councils and similar

       subordinate organizations, the Ohio Alliance for Retired Americans, and state chapters,

       all affiliated with or chartered by the AFL-CIO and operating within the State of Ohio.

       The Ohio AFL-CIO is governed by its Constitution, from which true and accurate copies

       of excerpts are attached as Exhibit A.

4.     The Ohio AFL-CIO represents a total membership of approximately 800,000 working

       men and women in the State of Ohio. Further, the Ohio AFL-CIO has members, living in

       every county of the State, who meet the qualifications set forth by Ohio law for voting in

       the 2004 general election and who desire to cast votes and have their votes counted.



                                                        s/Pierrette M. Talley
                                                     Pierrette M. Talley


Sworn to and subscribed before me this 1st day of October , 2004.

s/Kimm A. Massengill
Notary Public                 Kimm A. Massengill, Attorney at Law
                              Notary Public, State of Ohio
My commission expires:        My commission has no expiration date. Section 147.03 R.C.
                            IN THE UNITED STATES DISTRICT COURT
                             FOR THE NORTHERN DISTRICT OF OHIO
                                     WESTERN DIVISION

  ------------------------------------------------------------------------------  x
  THE LEAGUE OF WOMEN VOTERS OF OHIO, as an                                       :
  organization and representative of its members; OHIO AFL-                       : Civ. No. 04-7622
  CIO, as an organization and representative of its members,                      :
  ASSOCIATION OF COMMUNITY ORGANIZATIONS FOR                                      :
  REFORM NOW, as an organization and representative of its                        :
  members; PEOPLE FOR THE AMERICAN WAY                                            :
  FOUNDATION, as an organization and representative of its                        :
  members, OHIO COUNCIL 8, AMERICAN FEDERATION OF                                 : DECLARATION OF
  SATE, COUNTY AND MUNICIPAL EMPLOYEES, as an                                     : WENDY R. WEISER
  organization and representative of its members,                                 :
  OAPSE/AFSCME, as an organization and representative of its                      :
  members, THE COALITION OF BLACK TRADE                                           :
  UNIONISTS, as an organization and representative of its                         :
  members, A. PHILIP RANDOLPH INSTITUTE, as an                                    :
  organization and representative of its members, THE                             :
  COALITION OF HOMELESSNESS AND HOUSING IN                                        :
  OHIO, as an organization and representative of its members, and                 :
  PROJECT VOTE,                                                                   :
                                                                                  :
                                                                      Plaintiffs, :
  v.                                                                              :
                                                                                  :
  J. KENNETH BLACKWELL, in his official capacity as                               :
  Secretary of State of Ohio,                                                     :
                                                                                  :
                                                                    Defendant. :
  ------------------------------------------------------------------------------ x


        I, WENDY R. WEISER, declare as follows:

        1.       I am Associate Counsel at the Brennan Center for Justice at NYU School of Law,

attorneys for the Plaintiffs in this action. The matters contained in this declaration are based on

my personal knowledge, or with respect to my description of the documents, as set forth more

fully in Plaintiffs’ Statement of Facts.




                                                         1
        2.     Attached hereto as Exhibit 1 is a true and correct copy of excerpts from the

National Commission on Election Reform’s report entitled, To Assure Pride and Confidence in

the Electoral Process, dated August 2001.

        3.     Attached hereto as Exhibit 2 is a true and correct copy of excerpts from the

United States General Accounting Office Report to the Ranking Minority Member, Committee

on Government Reform, House Representative entitled, Elections: Statistical Analysis of Factors

That Affected Uncounted Votes in the 2000 Presidential Election, dated October 2001.

        4.     Attached hereto as Exhibit 3 is a true and correct copy of excerpts from the House

Committee on Government Reform, Minority Staff, Special Investigation, Income and Racial

Disparities in the Undercount in the 2000 Presidential Election, dated July 9, 2001.

        5.     Attached hereto as Exhibit 4 is a true and correct copy of excerpts from the

Caltech/MIT Voting Technology Project, Voting: What Is, What Could Be, dated July 2001.

        6.     Attached hereto as Exhibit 5 is a true and correct copy of excerpts from J.

Kenneth Blackwell, Ohio Secretary of State, Changing the Election Landscape in the State of

Ohio, A State Plan to implement the Help America Vote Act of 2002 in accordance with Public

Law 107-252, § 253(b), dated May 13, 2003.

        7.     Attached hereto as Exhibit 6 is a true and correct copy of Directive 2004-07

issued by Defendant J. Kenneth Blackwell to all County Boards of Elections, dated February 20,

2004.




                                                2
       8.     Attached hereto as Exhibit 7 is a true and correct copy of Directive 2004-33

issued by Defendant J. Kenneth Blackwell to all County Boards of Elections, dated September

16, 2004.

       I declare under penalty of perjury that the foregoing is true and correct.

       Executed on this 6th day of October, 2004 in New York, New York.



                                                       s/Wendy R. Weiser
                                                      Wendy R. Weiser




                                                 3
                   IN THE UNITED STATES DISTRICT COURT
                    FOR THE NORTHERN DISTRICT OF OHIO

                                                        :
THE LEAGUE O F WOMEN       VOTERS OF O HIO , ET. AL.,
                                                        :     Case No.: 3:04 CV 7622
                                                        :
v.                                                      :
                                                        :     Judge: Carr
J. KENNETH BLACKWELL .                                  :
                                                        :
                                                        :



                              NOTICE OF MANUAL FILING


       Please take notice that Plaintiffs, League of Women Voters, et. al., has manually

filed the following documents:

               1. Affidavits of Vicky Beasley, Rose Boutagy, E. Scott Britton, Bill
                  faith, Catherine Gall, Susan Gwinn, Steve Harsman, Tammy K. Lang,
                  Particia A. Moss, Joseph P. Rugola, and Pierrette M. Talley.

               2. Declaration of Wendy R. Weiser and associated attachments

       These documents have been filed electronically either because the electronic file

size of the document exceeds 1.5 megabytes or because documents cannot be converted

to an electronic format.

       These documents have been manually served on all parties.

Dated: October 6, 2004.

                                                        Respectfully submitted,

                                                        s/ Donald J. McTigue
                                                        ______________________________
                                                        Donald J. McTigue, Trial Counsel
                                                        Law Offices of Donald J. McTigue
                                                        3886 North High Street
                                                        Columbus, OH 43214
                                                        Telephone: (614) 263-7000
                                                     Fax: (614) 263-7078
                                                     E-mail:mctiguelaw@rrohio.com
                                                     Ohio Registration No. 0022849

                                                     Attorney for Plaintiffs



                                 Certificate of Service

I hereby certify that on October 6, 2004, a copy of the foregoing Motion for Preliminary
Injunction was filed electronically. Notice of this filing will be sent by operation of the
Court’s electronic filing system to all parties indicated on the electronic filing receipt.
All other parties will be served by regular U.S. mail. Parties may access this filing
through the Court’s system.

                                                     s/ Donald J. McTigue
                                                     ______________________________
                                                     Donald J. McTigue, Trial Counsel
                                                     Law Offices of Donald J. McTigue
                                                     3886 North High Street
                                                     Columbus, OH 43214
                                                     Telephone: (614) 263-7000
                                                     Fax: (614) 263-7078
                                                     E-mail:mctiguelaw@rrohio.com
                                                     Ohio Registration No. 0022849

                                                     Attorney for Plaintiffs

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:0
posted:5/20/2013
language:Unknown
pages:60
yaofenji yaofenji
About