Full opinion text
JUDGMENT AND ORDER SUSAN J. DLOTT, Chief Judge. TABLE OF CONTENTS TABLE OF CONTENTS I. INTRODUCTION .........................................................799 II. RESOLUTION OF PENDING MOTIONS...................................801 A. The Board’s Motion for Summary Judgment.............................801 1. The Board is not immune from suit.................................801 2. Plaintiffs have standing............................................803 a. As a candidate in the November 2010 election, Hunter has standing to challenge the Board’s treatment of provisional votes........................................................803 b. NEOCH and ODP have standing to enforce the NEOCH Consent Decree..............................................803 B. The Board’s Motion to Dismiss the Amended Complaint of NEOCH and ODP ...........................................................804 1. NEOCH and ODP have standing to enforce the NEOCH Consent Decree..........................................................804 2. Rule 12(b)(7) does not require dismissal of NEOCH’s Amended Complaint ......................................................804 3. NEOCH and ODP have stated a claim upon which relief may be granted.........................................................805 4. The Amended Complaint will not be dismissed for failure to conform to the evidence..........................................805 III. FINDINGS OF FACT......................................................805 A. Ohio Election Law....................................................805 1. Statutory Framework..............................................805 a. Secretary of State..............................................806 b. Boards of Elections............................................806 c. Election Precincts.............................................806 d. Poll Workers..................................................807 e. Regular Voting................................................807 f. Provisional Voting.............................................807 2. Northeast Ohio Coalition for the Homeless (“NEOCH”) Consent Decree...........................................................809 3. Ohio Secretary of State Directives...................................810 B. Hamilton County Board of Elections and the 2010 General Election.....812 1. The Board ........................................................812 2. Poll Workers......................................................813 3. Poll Worker Training..............................................813 4. The November 2010 General Election................................817 a. Voting at the Board of Elections Office..........................817 b. Voting at Polling Places on Election Day........................818 5. Processing the Ballots .............................................822 a. Provisional Ballot Verification..................................822 b. NEOCH Provisional Ballot Review..............................823 6. Board Meetings to Accept or Reject Provisional Ballots...............825 C. Hunter and Williams Litigation and Subsequent Events..................829 1. Hunter Initiates this Lawsuit.......................................829 2. Secretary of State Directives and Subsequent Investigation by the Board...........................................................829 3. State ex ret. Painter v. Brunner.....................................830 4. Subsequent Directives and Orders...................................831 5. Sixth Circuit Appeal...............................................832 IV. CONCLUSIONS OF LAW..................................................833 A. Equal Protection......................................................833 1. Legal Standard....................................................834 2. Analysis ..........................................................835 B. NEOCH Consent Decree...............................................841 C. Due Process ..........................................................841 1. Substantive Due Process ...........................................841 a. The Board’s Failure to Count Ballots Cast in the Wrong Precinct.....................................................842 b. Failure to Supervise Poll Workers...............................844 2. Procedural Due Process............................................846 IV. CONCLUSION............................................................847 I. INTRODUCTION This ease arises from the November 2010 election for Hamilton County Juvenile Court Judge between candidates Trade Hunter and John Williams. Hunter brought a claim under 42 U.S.C. § 1983 for alleged violations of due process and equal protection by defendant Hamilton County Board of Elections (“Board”) and its four members in their official capacities (“Defendants”) with respect to the Board’s review and counting of provisional ballots. Hunter alleged that the Board created a practice of accepting certain provisional ballots that were cast in the wrong precinct because of poll-worker error but did not apply the practice uniformly to all provisional ballots. On November 16, 2010, after the Board completed its count of provisional ballots and added the provisional total to the election day total, Hunter was 23 votes behind Williams. To provide context for the forthcoming discussion and decision on pending motions, the next few paragraphs briefly describe the events that transpired between the November 16, 2010 vote count and the final hearing on the merits of Hunter’s claims. The Court describes these events in greater detail in the subsequent Findings of Fact. On November 21, 2010, Hunter sought a temporary restraining order and preliminary injunction prohibiting Defendants from certifying the election results, ordering Defendants to investigate whether poll-worker error contributed to the rejection of other provisional ballots, and ordering Defendants to count all provisional ballots where poll-worker error caused the voter to vote in the wrong precinct. The Court permitted John Williams to intervene as a defendant. The Court also permitted the Northeast Ohio Coalition for the Homeless (“NEOCH”) and the Ohio Democratic Party (“ODP”) to intervene as plaintiffs. In their complaint, NEOCH and the ODP alleged that, in addition to violating voters’ constitutional rights, the Board failed to comply with the terms of a consent decree entered in the case of Northeast Ohio Coalition for the Homeless [NEOCH] v. Brunner, Case No. 2:06cv896 (S.D. Ohio) (Marbley, J.) (the “NEOCH Consent Decree”) with respect to provisional ballots. The Court held a hearing on November 22, 2010. That night, the Court granted in part Hunter’s motion for a preliminary-injunction and ordered the Board to immediately begin an investigation into whether poll-worker error contributed to the rejection of 849 provisional ballots that were cast in the wrong precinct and include in the mandatory recount any provisional ballots improperly cast for reasons attributable to poll-worker error. The Ohio Secretary of State, Jennifer Brunner, issued several directives to facilitate the Board’s investigation. Those directives soon became the subject of an action for a writ of mandamus filed against Secretary Brunner by John Williams. State ex rel. Painter v. Brunner, 128 Ohio St.3d 17, 941 N.E.2d 782 (Ohio 2011). The Ohio Supreme Court concluded that Secretary Brunner’s postelection instructions to the Board of Elections were not justified by Ohio law or this Court’s orders. Brunner, a Democrat who had lost her bid for reelection, was then replaced by Republican Jon Husted. Immediately upon taking office, Secretary Husted issued a directive superceding those issued by Secretary Brunner and directing the Board to certify the results of the election as they were on November 16, 2010 — that is, before this Court ordered the Board to investigate instances of poll-worker error. Hunter filed an emergency motion in this Court asking that it enforce the November 22 preliminary injunction and enjoin the Board from complying with Secretary Husted’s directive. On January 12, 2011, the Court granted the motion in part and ordered the Board to count certain provisional ballots, namely, those which the Board’s court-ordered investigation had revealed were cast in the wrong precinct due to poll-worker error. The Board appealed the decision to the Sixth Circuit. The Sixth Circuit affirmed this Court’s November 22 preliminary injunction and affirmed in part and vacated in part the January 12 order. The Sixth Circuit found that because this Court “modified the November 22, 2010 preliminary injunction by resolving disputed facts, the January 12, 2011 order should not have been issued prior to affording to defendants notice and an opportunity to be heard.” Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219, 246 (6th Cir.2011). The Sixth Circuit remanded the case so that this Court could, among other things, provide the Board with an opportunity to present evidence on the disputed issue of whether poll-worker error contributed to ballots being cast in the correct location but wrong precinct. The Court scheduled a permanent injunction hearing to begin on July 18, 2011. The parties agreed that the hearing should be the full and final merits hearing on all issues presented in Plaintiffs’ complaints. The day before the final pretrial conference and twelve days before permanent injunction hearing, the Board filed a motion for summary judgment asserting, for the first time, that it was immune from suit under the Eleventh Amendment. The Court declined to rule on the motion prior to the hearing. The Board filed an appeal, which the Sixth Circuit dismissed for lack of jurisdiction. The permanent injunction hearing commenced on July 18, 2011 and concluded on August 5, 2011. At the conclusion of the hearing, NEOCH and the ODP moved for leave to file an amended complaint to conform their claims to the evidence. The Court granted the motion, and the Board filed a motion to dismiss the amended complaint. The Board’s motions for dismissal (Doc. 191) and for summary judgment (Doc. 94) are ripe for adjudication. As set forth below, the Court DENIES both motions. Additionally, having considered the evidence and arguments advanced by the parties regarding the merits of Plaintiffs’ claims, the Court finds for the Plaintiffs on their claims that Defendants violated voters’ right to equal protection under the law and violated the NEOCH Consent Decree. Conversely, the Court cannot at this time enter a judgment in favor of Plaintiffs on their claim that Defendants violated voters’ right to due process of law. II. RESOLUTION OF PENDING MOTIONS The Court will first address the Board’s motion for summary judgment and motion to dismiss NEOCH and ODP’s first amended complaint. A. The Board’s Motion for Summary Judgment 1. The Board is not immune from suit The Board moves for summary judgment on the ground that, as an arm of the State of Ohio, it is entitled to sovereign immunity under the Eleventh Amendment. Hunter raises three arguments in opposition. First, Hunter argues that the Board is not an arm of the State and, thus, is not entitled to Eleventh Amendment immunity. Second, Hunter argues that even if the Board is entitled to Eleventh Amendment immunity, the Board has waived that immunity by its own conduct in this litigation. Finally, Hunter argues that even if the Board has not waived Eleventh Amendment immunity, the present suit could still proceed against the individual board members under the Ex parte Young doctrine. The Court will briefly address each argument in turn. First, the Court finds that the Board functions as an arm of the State with respect to its review and counting of provisional ballots. The Board is created by statute. Ohio Rev. Code (“O.R.C.”) § 3501.05. Its membership is appointed by the Ohio Secretary of State. O.R.C. § 3501.05(A). The Board is vested with broad powers to manage the conduct of elections on behalf of the State and does so under the guidance of the Secretary of State. See O.R.C. § 3501.11. Consequently, with respect to its review and counting of provisional ballots, the Board functions as an arm of the State and is entitled to Eleventh Amendment immunity. As Hunter contends, however, the defense of Eleventh Amendment immunity may be waived by consent in three ways: “[A] State may waive Eleventh Amendment immunity through its own conduct: by legislation, Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305, 110 S.Ct. 1868, 109 L.Ed.2d 264 (1990); by removing an action to federal court, Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 616, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002); or by “appearing without objection and defending on the merits,” Ku v. Tennessee, 322 F.3d 431, 435 (6th Cir.2003). Nair v. Oakland Cnty. Cmty. Mental Health Auth., 443 F.3d 469, 474 (6th Cir. 2006). In Ku v. Tennessee, waiver took the form of defense on the merits in federal court. In that case, the State of Tennessee appeared involuntarily as a defendant, engaged in substantial discovery, and filed a motion for summary judgment. Id. at 432. Only after receiving an adverse ruling on its motion for summary judgment did the State raise the defense of Eleventh Amendment immunity, “revealing] that it had its fingers crossed behind its metaphorical back the whole time.” Id. at 435. The Sixth Circuit determined that the State’s conduct constituted a form of voluntary invocation of federal jurisdiction that was sufficient to waive the Eleventh Amendment immunity defense. Id. Here, the Board was initially brought in involuntarily as a defendant. Instead of asserting its Eleventh Amendment immunity defense, the Board defended the suit on the merits, participating in extensive pre-trial activities before this Court and the Sixth Circuit. In fact, the Board raised the defense for the first time in its motion for summary judgment, which was filed just two weeks before the permanent injunction hearing. Before asserting its Eleventh Amendment Immunity defense, the Board: • filed notices of appearance (Docs. 4-7); • filed an opposition to Hunter’s Motion for Temporary Restraining Order (Doc. 9); • participated in the November 22, 2010 hearing on Hunter’s Motion for Temporary Restraining Order; • participated in William’s appeal of this Court’s November 22, 2010 Order; • filed an opposition to Hunter’s Motion to Enforce Preliminary Injunction Order (Doc. 26); • participated in the December 13, 2010 hearing on Hunter’s Motion to Enforce Preliminary Injunction Order; • appealed this Court’s January 12, 2011 Order (Doc. 48); • participated in status conferences with the Court on January 18, 2010, January 28, 2010, and May 3, 2011; • answered Hunter’s and NEOCH’s Complaints (Docs. 56 and 57); • participated in a discovery conference with the Court on June 8, 2011; • filed an agreed order regarding the transfer of ballots and re-use of equipment (Doc. 64); • filed a Motion for Emergency Relief and Request for Immediate Conference regarding the transfer of ballots and re-use of equipment (Docs. 71 and 79); • filed a Motion for Extension of Time to File Motions in Limine (Doc. 82); • participated in the July 1, 2011 conference with the Court regarding the transfer of ballots and re-use of equipment; • filed a trial brief (Doc. 88); and • filed a Motion in Limine (Doc. 91). This type of litigation conduct is inconsistent with an assertion of Eleventh Amendment immunity. Consequently, the Court concludes that the Board has waived the defense. 2. Plaintiffs have standing The Board next argues that neither Hunter, NEOCH, nor ODP have standing to pursue their claims. A plaintiff seeking to invoke the jurisdiction of the federal courts “must satisfy the threshold requirement imposed by Article III of the Constitution by alleging an actual case or controversy.” City of Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). “The irreducible constitutional minimum of standing contains three requirements!;] • • • injury in fact, causation, and redressability.” Nader v. Blackwell, 545 F.3d 459, 471 (6th Cir.2008) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-03, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)). “[I]njury in fact [is] a harm suffered by the plaintiff that is concrete and actual or imminent, not conjectural or hypothetical.” Steel Co., 523 U.S. at 103, 118 S.Ct. 1003 (citation and quotation marks omitted). Causation is “a fairly traceable connection between the plaintiffs injury and the complained-of conduct of the defendant.” Id. Redressability is “a likelihood that the requested relief will redress the alleged injury.” Id. a. As a candidate in the November 2010 election, Hunter has standing to challenge the Board’s treatment of provisional ballots Defendants argue that Hunter lacks standing to challenge the Board’s review and counting of provisional ballots because she, as a political candidate, has suffered no injury in fact. The Court disagrees. As this Court has previously stated, Hunter has a concrete, private interest in the outcome of this suit, as the Board’s treatment of the disputed ballots matters to the outcome of the November 2010 election. At the preliminary injunction stage, this Court found that Hunter would suffer irreparable harm if “the provisional ballots that were not counted were the result of ‘clear poll worker error’ ... and if those uncounted ballots tip the scale in [Hunter’s] favor making her the winner of the race.” (Doc. 13 at 8) (emphasis in original.) The Sixth Circuit agreed, noting that the “candidate who ultimately loses the election will suffer an irreparable and substantial harm.” Hunter, 635 F.3d at 244. Injury sufficient for irreparable harm has resonance for injury in fact under Article III. Further, Hunter’s injury is traceable to the Board’s allegedly unconstitutional conduct, and an order from this Court enjoining the Board from continuing to violate provisional voters’ constitutional rights and compelling it to treat similarly situated ballots equally will redress the alleged injury. Accordingly, the Court finds that Hunter has satisfied Article Ill’s standing requirements. b. NEOCH and ODP have standing to enforce the NEOCH Consent Decree The Board next contends that NEOCH and ODP lack standing. NEOCH and ODP intervened in this suit to enforce the terms of the NEOCH Consent Decree. The Board argues that the Decree does not confer standing to NEOCH and ODP because it violates Article I, Section 18 of the Ohio Constitution, which provides that “[n]o power of suspending laws shall ever be exercised, except by the general assembly.” The Board’s argument is as follows: Ohio law provides that a provisional ballot envelope shall not be opened and the ballot shall not be counted if the Board determines that the individual cast the ballot in the wrong precinct. O.R.C. § 3505.183(B)(4)(a)(ii). The Decree suspends Ohio law because it requires the Board to open and count wrong precinct ballots in certain, narrow circumstances, including when a ballot is cast in the wrong precinct but in the correct polling place because of poll-worker error. The Court disagrees with the Board’s argument. The NEOCH Consent Decree does not suspend any Ohio law. “Suspend” is defined as: “[t]o interrupt; to cause to cease for a time; to postpone; to stay, delay or hinder; to discontinue temporarily, but with an expectation or purpose of resumption.” Black’s Law Dictionary 1446 (6th ed. 1990). The NEOCH Consent Decree does not stay, discontinue, permanently enjoin or declare unconstitutional any Ohio law. In fact, Ohio provisional ballot laws remain in full force. The Decree merely creates a narrow exception to provisional ballot laws, specifying that boards of elections may not reject a provisional ballot cast by a voter who uses only the last four digits of his or her Social Security number as identification if the voter cast a provisional ballot in the correct polling place, but — for reasons attributable to poll-worker error- — in the wrong precinct. Such an exception cannot be termed a suspension of Ohio provisional ballot laws and, consequently, the NEOCH Consent Decree does not run afoul of Article I, Section 18 of the Ohio Constitution. NEOCH and ODP are parties in the NEOCH case and are parties to the NEOCH Consent Decree. Because the Court finds that the Consent Decree is valid, NEOCH and ODP have standing to pursue the claims asserted. For the foregoing reasons, the Court DENIES the Board’s Motion for Summary Judgment. B. The Board’s Motion to Dismiss the Amended Complaint of NEOCH and ODP 1. NEOCH and ODP have standing to enforce the NEOCH Consent Decree The Board moves to dismiss the Amended Complaint on the basis that NEOCH and ODP lack standing to enforce the NEOCH Consent Decree. As the Court rejected this argument above, further discussion is not warranted here. 2. Rule 12(b)(7) does not require dismissal of NEOCH’s Amended Complaint The Board next argues that the Amended Complaint must be dismissed for failure to join a party under Federal Rule of Civil Procedure 12(b)(7). The Board contends that the State of Ohio is a necessary party under Federal Rule of Civil Procedure 19(a) because Plaintiffs have asserted due-process challenges to the Ohio election laws. The Board argues that Plaintiffs cannot proceed to challenge Ohio election laws without providing notice to the State of Ohio and without the State of Ohio’s participation in this suit. As will be discussed later in this Order, the Court will not rule upon Plaintiffs’ due-process challenges to Ohio election laws because Plaintiffs have failed to comply with the requirements of Federal Rule of Civil Procedure 5.1. It is unnecessary, therefore, to determine whether the State of Ohio is a necessary party under Federal Rule of Civil Procedure 19(a). 3. NEOCH and ODP have stated a claim upon which relief may be granted The Board also moves to dismiss the Amended Complaint under Federal Rule of Civil Procedure 12(b)(6) on the ground that it is entitled to sovereign immunity under the Eleventh Amendment. As the Court rejected this argument above, further discussion is not warranted here. 4. The Amended Complaint will not be dismissed for failure to conform to the evidence Finally, the Board moves to dismiss the Amended Complaint on the ground that paragraphs 56 through 58 do “not conform to the evidence established at the Board’s meeting on November 16, 2010 concerning voters’ affirmations and names on the provisional ballot envelopes.” (Doc. 191 at 18.) The Board contends that the evidence at trial revealed that the Board investigated for poll-worker error provisional ballots that were cast by voters who used only the last four digits of their social security numbers as identification who did not properly complete and/or sign their provisional ballot applications. Any claim to the contrary, the Board argues, does not conform to the evidence at trial and requires dismissal of the Amended Complaint. As will be discussed at length later in this order, the Court disagrees. For the foregoing reasons, the Court DENIES the Board’s Motion to Dismiss Amended Complaint. The Court now sets forth its findings of fact and conclusions of law regarding the merits of the claims raised in Hunter’s Complaint for Declaratory and Injunctive Relief (Doc. 1) and NEOCH and the ODP’s Amended Complaint (Doc. 180). III. FINDINGS OF FACT A. Ohio Election Law The Court herewith provides an overview of Ohio election law with an emphasis on the key subject in this case — provisional voting. 1. Statutory Framework Election procedure in Ohio is governed by Ohio Revised Code Title 35. Unless otherwise noted, the statutory references contained herein are to the Ohio Revised Code sections in effect in November 2010. a. Secretary of State The Ohio Secretary of State is the state’s chief elections officer. The Secretary of State oversees the elections process and appoints the members of boards of elections in each of Ohio’s eighty-eight counties. O.R.C. § 3501.05(A). The Secretary of State’s election-related duties include “[i]ssu[ing] instructions by directives and advisories ... to members of the boards as to the proper methods of conducting elections;” “[p]repar[ing] rules and instructions for the conduct of elections;” and “[c]ompel[ling] the observance by election officers in the several counties of the requirements of the election laws.” O.R.C. § 3501.05(B), (C), and (M). b. Boards of Elections The Secretary of State appoints four board members to each county’s board of elections: two Republicans and two Democrats. O.R.C. § 3501.06. The board of elections is responsible for establishing election precincts, receiving and canvassing the returns of elections, and maintaining voter registration records. Id. In addition to its other duties, the board of elections is required to “[investigate irregularities, nonperformance of duties, or violations of Title [35] of the Revised Code by election officers and other persons.” O.R.C. § 3501.11(J). The board must perform “duties as prescribed by law or the rules, directives, or advisories of the secretary of state.” O.R.C. § 3501.11(P). The board exercises its powers by a majority vote, with the Secretary of State acting as a tie-breaker when necessary. O.R.C. § 3501.11(X). c. Election Precincts Ohio has a precinct-based voting system. A “precinct” is an intra-county district established by the board of elections. All residents of a precinct must vote at a specific designated location. O.R.C. § 3501.01(Q). Pursuant to Ohio statute, a qualified elector “may vote at all elections in the precinct in which the citizen resides.” O.R.C. § 3503.01(A). A “polling place” is the place provided for each precinct at which qualified voters residing in the precinct may vote. O.R.C. § 3501.01(R). On election day, a single polling place may be designated as the polling place for residents of multiple different precincts. A voter also, in certain circumstances, may cast a ballot at the office of the board of elections. O.R.C. § 3503.16(B)(2)(c). In that case, the voter appears at the board office and board staff provides the voter with the ballot associated with his or her precinct. Any qualified elector in Ohio may apply for an absent voter’s ballot and vote absentee at an election. O.R.C. §§ 3509.02, 3509.03. d. Poll Workers Each year in September, boards of elections must appoint four poll workers to work in each election precinct. O.R.C. § 3501.22. The poll workers must reside in the county in which the precinct is located. Id. Half the poll workers in any given precinct are of the Republican Party, and half are of the Democratic Party. O.R.C. § 3501.22. Poll workers are responsible for receiving ballots and supplies, opening and closing the polls, and overseeing the easting of ballots during the time the polls are open. Id. Boards of elections must designate one poll worker in each precinct to serve as a “presiding judge.” O.R.C. § 3501.22. The presiding judge is the manager and team leader of the precinct; he or she must deliver the returns of the election and all supplies to the board of elections office following the election. All poll workers in Ohio are required to complete an instruction program, established by the board of elections as prescribed by the Secretary of State, that instructs them in the rules, procedures, and law relating to elections. O.R.C. § 3501.27. Boards of elections must use training materials prepared by the Secretary of State and may use additional materials prepared by or on behalf of the board. Id. Ohio law requires boards of elections to instruct each new poll worker prior to his or her participation in the first election, and then reinstruct him or her at least once every three years thereafter. O.R.C. § 3501.27. e. Regular Voting To be qualified to vote in Ohio, a person must be at least eighteen years old, have resided in Ohio at least thirty days preceding the election, be a resident of the county and precinct in which the person offers to vote, and be registered to vote. O.R.C. § 3503.01. The names and current addresses of all registered voters within a precinct and known to the county board of elections at least thirty days before an election are contained within that precinct’s “signature pollbook.” On election day, a voter whose name and current address are in the precinct’s signature pollbook and who produces acceptable identification is permitted to vote a regular ballot. O.R.C. § 3505.18. Acceptable identification for this purpose is “a current and valid photo identification, a military identification, or a copy of a current utility bill, bank statement, government check, paycheck, or other government document ... that shows the name and current address of the elector.” Id. Ohio uses paper ballots that include boxes to the left of the candidate or issue that the voter must fill in using a pen with black or blue ink. After completing the ballot, the regular voter places the paper ballot into an optical scanning machine called the “eScan” that scans and counts the ballot. f. Provisional Voting Ohio law permits an individual whose name does not appear on the precinct’s signature pollbook or who does not have one of the above-mentioned forms of identification to cast a provisional ballot under certain circumstances. O.R.C. § 3505.181. For example, an individual may cast a provisional ballot if he or she (1) declares that he or she is a registered voter in the jurisdiction and is eligible to vote, but his or her name is not in the signature poll-book; (2) provides the last four digits of his or her social security number as a form of identification; (3) has been marked in the signature pollbook as having requested an absent voter’s ballot; or (4) has had his registration notification card returned to the board of elections as undeliverable. O.R.C. §§ 3505.181(A)(1), (2), (5), (6). Under Ohio law, “only ballots cast in the correct precinct will be counted.” Sandusky Cnty. Democratic Party v. Blackwell, 387 F.3d 565 (6th Cir.2004). As stated by the Ohio Supreme Court, The plain language of several statutes so provides. See R.C. 3503.01(A) (every qualified elector “may vote at all elections in the precinct in which the citizen resides”); R.C. 3505.181(C)(2)(a) (providing that “if an individual refuses to travel to the polling place for the correct jurisdiction ... [a] provisional ballot cast by that individual shall not be opened or counted” if the “individual is not properly registered in that jurisdiction”) and (E)(1) (defining “jurisdiction” for purposes of provisional-ballot provisions as “the precinct in which a person is a legally qualified elector”); R.C. 3505.182 (requiring each individual casting a provisional ballot to execute a written affirmation stating that he or she “understand^ that ... if the board of elections determines that” the individual is not a resident of the precinct in which the ballot was cast, the provisional ballot will not be counted); R.C. 3505.183(B)(4)(a)(ii) (if board determines that the “individual named on the affirmation is not eligible to cast a ballot in the precinct or for the election in which the individual cast the provisional ballot,” “the provisional ballot envelope shall not be opened, and the ballot shall not be counted”); and R.C. 3599.12(A)(1) (prohibiting any person from voting or attempting to vote in any election “in a precinct in which that person is not a legally qualified elector”) and (B) (making a violation of that section a felony of the fourth degree). State ex rel. Painter v. Brunner, 128 Ohio St.3d 17, 27-28, 941 N.E.2d 782 (Ohio 2011). However, Ohio law also tasks the poll worker with determining whether an individual is eligible to vote in the jurisdiction by reviewing the precinct voting location guide using the residential street address provided by the individual. O.R.C. § 3505.181(C)(1). If the voter is in the wrong precinct, the poll worker is to “direct the individual to the polling place for the jurisdiction in which the individual appears to be eligible to vote, explain that the individual may cast a provisional ballot at the current location but the ballot will not be counted if it is cast in the wrong precinct, and provide the telephone number of the board of elections in case the individual has additional questions.” Id. Therefore, so long as a voter gives the poll worker his or her correct address and the poll worker complies with state law, a voter cannot cast a provisional ballot in the wrong precinct without knowing that he is casting it in the wrong precinct and that, consequently, the ballot will not be counted. Regardless whether an individual votes regularly or provisionally, the paper ballot provided to all individuals residing in a precinct is the same. However, ballots cast by provisional voters are not scanned and counted like regular ballots on election day. Rather, the eligibility of the provisional voter — and thus that voter’s ballot— must be determined by the county’s board of elections. For this reason, a ballot cast by a provisional voter is not placed into the eScan on election day like a regular voter’s ballot. Rather, a provisional voter’s ballot is sealed in a special “Provisional Ballot Affirmation Envelope” and placed in a slot on the side of the eScan. State law requires that provisional ballot affirmation envelopes include an affirmation statement that reads, I,_[print name of voter], solemnly swear or affirm that I am a citizen of the United States, I will be at least 18 years of age at the time of the general election, I have lived in this state for 30 days immediately preceding this election, I am a registered voter in the precinct in which I am voting this provisional ballot and that I am eligible to vote in the election in which I am voting this provisional ballot. I understand that, if the above-provided information is not fully completed and correct, if the Board of Elections determines that I am not registered to vote, a resident of this precinct, or eligible to vote in this election, or if the Board of Elections determines that I have already voted in this election, my provisional ballot will not be counted. I further understand that knowingly providing false information is a violation of federal law and subjects me to possible criminal prosecution. I hereby declare, under penalty of election falsification, that the above statements are true and correct to the best of my knowledge and belief. O.R.C. § 3505.182. The provisional voter is to sign his or her name below this affirmation statement. After the election, the provisional ballot envelopes (with completed ballots sealed inside) are taken to the board of elections where board staff review the information on the envelope and, based on that information, determine whether the provisional ballot is eligible to be counted. O.R.C. § 3505.183. Pursuant to that statute, “[t]o determine whether a provisional ballot is valid and entitled to be counted, the board shall examine its records and determine whether the individual who cast the provisional ballot is registered and eligible to vote in the applicable election.” Id. If the individual is properly registered to vote, is eligible to cast a ballot in the precinct and for the election in which the individual cast the provisional ballot, and signed the affirmation statement indicating that he or she was eligible to vote, then the board shall open the provisional ballot envelope and place the ballot in a ballot box for counting. O.R.C. § 3505.183(B)(3). On the other hand, the board will not open the provisional ballot envelope or count the ballot if, among other things, the individual is not qualified or is not properly registered to vote, or the individual is not eligible to cast a ballot in the precinct or for the election in which the individual cast the provisional ballot. O.R.C. § 3505.183(B)(4)(a). 2. Northeast Ohio Coalition for the Homeless (“NEOCH”) Consent Decree The general prohibition against counting a ballot cast in the wrong precinct is not absolute. The Ohio Secretary of State and the Ohio Attorney General are parties to a consent decree (hereinafter “NEOCH Consent Decree” or “Decree”) that specifies that, under certain limited circumstances, provisional ballots that are flawed because of poll-worker error cannot be rejected. Northeast Ohio Coalition for the Homeless [NEOCH] v. Brunner, Case No. 2:06cv896 (S.D.Ohio), Doc. 210. The Decree addressed the plaintiffs’ concern that Ohio’s provisional ballot laws would be applied differently and unequally by Ohio’s eighty-eight boards of elections by setting forth rules regarding the casting and counting of provisional ballots for persons without identification other than a social security number. Relevant to this case, the Decree prohibited the rejection of certain provisional ballots, stating: Boards of elections may not reject a provisional ballot cast by a voter, who uses only the last four digits of his or her social security number as identification, for any of the following reasons: v. The voter cast his or her provisional ballot in the wrong precinct, but in the correct polling place, for reasons attributable to poll worker error; [or] vi. The voter did not complete or properly complete and/or sign the provisional ballot application for reasons attributable to poll worker error[.] Id. at 4; also PX 2008 at 4. These rules were crafted to meet one of the Decree’s purposes, namely, “to ensure that ... [t]hese voters will not be deprived of their fundamental right to vote because of failures by poll workers to follow Ohio law. For purposes of this Decree poll worker error will not be presumed, but must be demonstrated through evidence.” (Decree I(l)(e), found at PX 2008 at 2.) According to the Ohio Attorney General, the Consent Decree “simply restates Ohio law in Ohio Rev.Code sections 3505.18, 3505.181, and 3505.182” and “parrots the existing requirements of state law.” NEOCH, Case No. 2:10cv896, Doc. 219 at 18. 3. Ohio Secretary of State Directives In April 2010, after the U.S. District Court entered the NEOCH Consent Decree, the Ohio Secretary of State issued Directive 2010-48 to all boards of elections describing and explaining the provisional ballot rules outlined in the Decree. Directive 2010-48 noted that, for individuals voting a provisional ballot using the last four digits of his/her social security number, the Decree prohibited depriving those individuals “of the fundamental right to vote because of failure of a poll worker to follow Ohio law.” Like the Decree, Directive 2010-48 noted that poll-worker error would not be presumed but had to be demonstrated through evidence. The day before the 2010 general election, on November 1, 2010, the Secretary of State issued two more directives pertaining to provisional ballots. Directive 2010-73 (DX 1019) reiterated the terms of the NEOCH Consent Decree and instructed the boards of elections to comply with it. Directive 2010-74 (JX 34) provided guidelines for the boards of elections in processing and counting provisional ballots and expressly noted that the guidelines included relevant rulings in the NEOCH v. Brunner lawsuit. In Directive 2010-74, the Secretary of State set forth the steps that boards of elections and/or board staff were required to take when determining the eligibility of provisional ballots. Each of these steps correlated to, and cited, a particular subsection of O.R.C. § 3505.183. Relevant to this case, Step 2 of the Directive provided a series of steps for the staff to use to determine whether the provisional ballot was eligible for counting, including determining (1) whether the person who cast the provisional ballot was registered to vote, (2) whether the person was eligible to vote in the particular election in question, and (3) whether the person completed the affirmation on the provisional ballot envelope. (Id. at 5.) Regarding the second of these steps — a person’s eligibility — the directive noted that if the person was either not registered to vote or was not eligible to vote in the particular election, “(e.g., if the vote is cast in the wrong precinct),” then the ballot was not to be counted. (JX 34 at 5-6.) However, a footnote clarified that a board could not reject a provisional ballot cast by a voter who used only the last four digits of his or her social security number as identification when the ballot was cast in the wrong precinct but the correct multi-precinct polling location for reasons attributable to poll-worker error. (JX 34 at 6 n. 2 (citing NEOCH, S.D.Ohio No. 2:06-cv-896)). Step 3 directed board staff to consider any additional information provided by the person who cast the provisional ballot. The Step 3 instruction again reminded board staff that a provisional ballot cast by a voter who used only the last four digits of his or her social security number as identification could not be rejected for reasons attributable to poll-worker error. (Id. at 7.) The Secretary of State explained the concept of “poll worker error” more fully in Section VII of Directive 2010-74. That section specified that boards of elections in Ohio could not reject a provisional ballot cast by a voter who used only the last four digits of his or her social security number as identification when, among other things, (1) the voter cast his or her provisional ballot in the wrong precinct, but in the correct polling place, for reasons attributable to poll-worker error or (2) the voter did not complete or properly complete and/or sign the provisional ballot application for reasons attributable to poll-worker error. (Id. at 11.) The directive specifically described three types of poll-worker error: A. One example of the type of poll worker error contemplated under the NEOCH consent decree occurs when a voter fails to sign the provisional ballot affirmation statement portion of SOS Form 12-B [the provisional ballot envelope], but the poll worker completes and signs the verification statement portion of ... [the provisional ballot envelope] indicating that the voter has completed the affirmation and without indicating that the voter declined to complete the affirmation. If this occurs, the board of elections should, either in writing, with written response from the poll worker, or at a public meeting of the board, question the poll workers in that precinct to determine whether they followed the board’s instructions for completing the verification statement, both as to the specific ballot in question and in general on Election Day. Where a poll worker’s response indicates that he or she did not properly complete the verification statement, that response and the completed poll worker verification statement provide objective evidence that the poll worker did not ensure that the voter had completed the affirmation before the poll worker filled out the verification statement portion of ... [the provisional ballot envelope]. B. Another example of poll worker error is where the provisional ballot affirmation envelope ... contains notations indicating that a poll worker directed the voter to the wrong precinct at a polling location containing multiple precincts. Because it is a poll worker’s duty to ensure that the voter is directed to the correct precinct, these notations provide objective evidence that the poll worker did not properly or to the fullest extent required carry out his or her Election Day duties. Similarly, if a board of elections finds multiple provisional ballots voted in the correct polling location but wrong precinct, it should, either in writing, with written responses from the poll workers, or at a public meeting of the board, question the poll workers in that polling location to determine whether they followed the board’s instructions for ensuring that voters were directed to the correct precinct. C. Failure of a poll worker to complete and sign the “Election Official Verification Statement” portion of ... [the provisional ballot envelope] is clear evidence of poll worker error because election officials are required by R.C. 3505.182 to complete this information. (Id. at 11-12) (emphasis in original.) The Secretary of State transmitted this directive to all county boards of elections the day before Election Day. B. Hamilton County Board of Elections and the 2010 General Election Having described Ohio election law as it was in November 2010, the Court now turns to the persons and events that are at the crux of the case: the Hamilton County Board of Elections and its staff, the poll workers and their training, Election Day, and the meetings at which Board members decided which provisional ballots to count. 1. The Board The Hamilton County Board of Elections is headed by board members Alex Triantafilou (R), Charles Gerhard, III(R), Timothy Burke (D), and Caleb Faux (D). The Board employs a director, deputy director, four administrators, and a staff of approximately forty-two people, half of whom are Democrats and half of whom are Republicans. (Hr’g Tr. (Krisel) 1-33.) Sally Krisel is the director of the Hamilton County Board of Elections. As director, Krisel’s duty is to oversee all aspects of elections in Hamilton County. (Hr’g Tr. (Krisel) 1-31.) Sherry Poland is one of four administrators employed at the Board of Elections. (Hr’g Tr. (Krisel) 1-34.) Poland is in charge of operations, which includes the registration department as well as provisional and absentee voting. (Hr’g Tr. (Krisel) 1-34.) As part of its service to Hamilton County residents, approximately sixty days before an election, the Board sends an “Election Day Notice” to all registered voters in Hamilton County at the address on file with the Board. (Hr’g Tr. (Goldsmith) 10-23 to 10-24; DX 1003.) The Notice is “return service requested” and thus is not forwarded by the post office. The Notice includes the voter’s precinct and the voter’s polling location, but it does not indicate where the voter’s precinct will be at that polling location. (Hr’g Tr. (Burke) 2-86.) The Board also maintains a web page where voters can check to see if they are registered to vote and learn the polling location and precinct at which they are to vote. (DX 1002.) 2. Poll Workers Anyone registered to vote in Hamilton County may sign up to be a poll worker. Poll workers need not have a high-school diploma or GED, nor are they required to demonstrate any particular level of literacy. (Hr’g Tr. (Krisel) 12-61.) The Board appoints both a presiding judge and a deputy judge to each precinct. (Hr’g Tr. (Krisel) 1-43.) The deputy judge, who is of the opposite political party to that of the precinct’s presiding judge, acts as an assistant to the precinct’s presiding judge during an election. In addition to the four poll workers per precinct required by Ohio law, the Board assigns two more poll workers to any precinct that has more than 900 voters. (Hr’g Tr. (Krisel) 12-20.) Accordingly, each Hamilton County precinct has either four or six poll workers, one of whom is the presiding judge and another of whom is the deputy presiding judge. In each precinct, the presiding judge is to assign one of the poll workers to act as the “provisional judge.” (Hr’g Tr. (Krisel) 1-43 to 1-44; JX 6 at 4.) The provisional judge is responsible for processing provisional ballots at the precinct and has specific duties unique to that task. (Id) In polling locations where there are four or more precincts reporting, the Hamilton County Board of Elections also hires a “precinct guide.” In the November 2010 election, Hamilton County had sixteen voting locations with four or more precincts reporting and to which the Board assigned a precinct guide. (Hr’g Tr. (Krisel) 1-32.) In all, the Board of Elections retained more than 3000 poll workers for the November 2010 general election. 3. Poll Worker Training In Hamilton County, board of elections staff members do not train poll workers. Rather, the Board recruits individuals in the community, predominately retired school teachers, to conduct the poll worker training sessions. (Hr’g Tr. (Krisel) 12-20.) These trainers go through a seven- to ten-day training course depending on the election. (Id) For the November 2010 election, these poll worker trainers conducted 190 poll worker training classes at nine different locations in Hamilton County. (Hr’g Tr. (Krisel) 12-21.) Each class lasted for three hours. (Id) Although state law requires that presiding judges be reinstructed only every two years, the Hamilton County Board of Elections trains its presiding judges and deputy presiding judges more frequently, training them for each county-wide election. (Hr’g Tr. (Krisel) 1-62.) Poll workers are paid for attending the training session. (Hr’g Tr. (Krisel) 12-21.) The Hamilton County Board of Elections updated its poll worker training program prior to the November 2010 election. The updated training program included PowerPoint slides and videos designed to facilitate the poll worker training. The updated training materials also included two printed books: the Poll Worker Comprehensive Manual (JX 6) and the Poll Worker Quick Guide (JX 7). Both the Comprehensive Manual and the Quick Guide, which is a condensed version of the Comprehensive Manual, explained all the duties and tasks the poll workers were to undertake on election day. During poll worker training, trainers refer to and rely on the Quick Guide. Every poll worker receives his or her own copy of the Quick Guide, either at the training or in the mail. (Hr’g Tr. (Krisel) 1-39 to 1-40.) A copy of the larger Comprehensive Manual is delivered to each precinct on election day for the poll workers to use as an additional reference tool. (Id.) The Quick Guide included specific instructions pertaining to each step of the voting process, including a diagram of the “check-in table” that showed the poll workers where they were to sit on election day and listed what materials they were to have. (JX 7 at 12, excerpted below.) I Review Check-In Table On election day, the voter is supposed to start with the first poll worker and then work his or her way down the table, depending on the instructions of the poll worker. The first poll worker, “Judge 1,” checks to see if the voter’s name is in the signature pollbook. (Id.) The second poll worker, “Judge 2,” gives the paper ballots to the voters. (Id.) The third poll worker, “Judge 3,” is responsible for the provisional voting materials and voter address look-up. (Id.) The presiding judge sits at the end of the table where he or she can assist voters, monitor the precinct, and help other judges. (Id.) In large precincts that are assigned six poll workers rather than four, “Judge 5” assists Judge 3 with the provisional materials and “Judge 6” assists the presiding judge. The Quick Guide section titled “Guidelines for Processing Voters” begins with the following information: A voter must vote in the precinct where he/she lives in order for their ballot to count. Is the voter’s name and current address in the Signature Poll Book? If not, ask the voter to go to the Provisional Judge who will locate the correct precinct using the Street Lists. See Provisional Voting Section in this manual. See also Comprehensive Manual. Please call 632-7000 to determine the voter’s correct precinct location. (JX 7 at 13 (emphasis in original).) The Quick Guide “Guidelines for Processing Voters” (JX 7 at 13) and “Processing the Provisional Voter” (JX 7 at 22) sections specify that the Provisional Judge is to locate the voter’s correct precinct using the street lists. To summarize, the poll worker acting as Judge 1 must decide whether the individual presenting at the table is entitled to cast a regular ballot or whether the individual should be directed to the provisional judge. If the individual’s name and current address are correctly listed in the signature pollbook and he or she presents acceptable and current identification, the poll worker is instructed to give the individual a regular paper ballot to mark and then place in the eScan voting machine. (JX 7 at 14.) Conversely, if the individual does not meet those criteria, the poll worker must direct that individual to the provisional judge. (JX 7 at 13.) When Judge 1 sends a voter to the provisional judge, the first thing the provisional judge must do is verify that the individual’s current address is located in the precinct. (JX 7 at 22; JX 6 at 6 (“Provisional Judge ... 1. Verifies voter’s current address is in the Precinct Street List.”) (emphasis in original).) To enable the provisional judge to do this, the Board supplies him or her with three different precinct voting location guides: a county street list that includes every street address in Hamilton County (a spiral-bound, 1^-inch thick, double-sided book with a green cover and commonly referred to as “the Green Book”) (JX 9); a ward or township street list that includes only the street addresses located in the ward or township in which the precinct is located (JX 10); and a precinct street list that includes only the street addresses within a single precinct (JX 11). (Hr’g Tr. (Krisel) 1^45; see also JX 6 at 5.) The provisional judge should first attempt to locate the voter’s address in the precinct guide to make sure the address is within the precinct in which the voter is trying to vote. (Hr’g Tr. (Krisel) 1-47.) If the individual’s address is not in the precinct street list, the provisional judge is to look up the address in the other location guides to determine in which precinct that individual resides and where that person should vote. (Hr’g Tr. (Krisel) 1-47.) If the provisional judge is able to confirm that the voter’s current address is in the precinct, the provisional judge is to verify the individual’s valid identification (or write in the last four digits of the individual’s social security number if the individual did not bring identification) and give the individual a provisional ballot envelope. (JX 7 at 22.) The provisional ballot envelope is a large, catalog-style envelope designed so that the paper ballot can be placed into the envelope without being folded. The provisional judge is to direct the voter to complete Steps 1 through 8 on the front of the envelope and sign at the bottom. (JX 6 at 6; JX 7 at 22.) The first seven steps guide the voter to write in his or her name, current and former address, whether the voter has changed his or her name, the voter’s birth date, the reason why the voter is voting a provisional ballot, and the form of identification the voter provided to the poll worker. (JX 1.) The last step is comprised of the statutorily required affirmation statement which the voter must attest to by signing his or her name. Below the voter’s signature line is a signature line for the “witnessing election official.” Under the “witnessing election official” signature line, the following text appears in bold, all capital typeface: “ID PROVIDED YES NO.” The provisional judge is to sign his or name as the witnessing election official and check “YES” or “NO” to reflect whether the voter has provided identification. (Id.) Also on the bottom of the envelope front is a block where Board staff place a label that indicates in which precinct the provisional ballot envelope was cast. (Id.) For example, all provisional ballot envelopes (and ballots) at the Cincinnati 25-A precinct table are labeled “Cincinnati 25-A,” whereas all the provisional ballot envelopes (and ballots) at the Cincinnati 25-J precinct table are labeled “Cincinnati 25-J.” These labels indicate to the Board where a provisional voter cast his or her provisional ballot. Ballots also are marked with the precinct name and number. It is assumed that if a provisional voter receives a provisional ballot envelope marked “Cincinnati 25-J” that he or she also will receive a ballot marked “Cincinnati 25-J.” Unlike the front of the provisional ballot envelope, which is to be completed by the voter, the back of the envelope is to be completed entirely by the provisional judge. The provisional judge is instructed to complete the four steps on the back of the envelope and sign the back of the envelope. In those four steps, the provisional judge is to record the voter’s name, the date, whether the voter is to provide any additional information before the board of elections can determine the voter’s eligibility, and what type of identification the voter provided, if any. (JX 7 at 22-23.) After the voter provides all the necessary information on the provisional ballot envelope, the voter is to sign and print his name and address in the yellow provisional voter signature pollbook, and the provisional judge is to give that precinct’s ballot to the individual. After marking the ballot, the individual is to place the ballot in the provisional ballot envelope and place the envelope in the side slot on the eScan tub. (JX 7 at 24.) There are blank “notes” pages in the back of each precinct’s provisional voter signature pollbook where poll workers can record information that might be relevant to the Board’s determination of a provisional voter’s eligibility to cast a ballot. The written instructions in the Quick Guide do not tell the provisional judge what do to if the individual’s current address is not in the precinct street list. However, the Comprehensive Manual explains that if the voter’s address is not in the precinct street list, the provisional judge is to attempt to find the individual’s address in the county street list and give the voter directions to the correct precinct listed next to the street name. (JX 6 at 5.) Although the precinct’s presiding judge is to assign one poll worker to be the precinct’s provisional judge, all poll workers in Hamilton County are trained to be able to perform that function so they can “fin in” when the assigned provisional judge has to take a break. (Hr’g Tr. (Krisel) 1-43 to 1-44.) Hamilton County poll workers are taught all of this information, and more, in a single, three-hour training session. (Hr’g Tr. (Krisel) 12-21.) Training sessions typically have a trainer-to-poll worker ratio of 1:24. During training, poll workers are asked to do four hands-on exercises designed to mimic the functions they would perform at polling places on election day, but there is no formal test to evaluate whether the poll workers can correctly process a provisional voter. (Hr’g Tr. (Krisel) 12-23.) The Board evaluates poll workers based on information received from voters and other poll workers on election day, letters received after election day, known mistakes made by poll workers, information received from troubleshooters in the field on election day, and information received from trainers following the training classes. (Hr’g Tr. (Krisel) 12-33 to 12-38.) Based on this information, the Board may discharge poll workers. (Hr’g Tr. (Krisel) 12-34.) 4. The November 2010 General Election a. Voting at the Board of Elections Office Under certain circumstances, a voter may cast a ballot at the Hamilton County Board of Elections’ downtown Cincinnati office located at 824 Broadway on or before Election Day. Provisional ballots east at the Board’s office account for voters who move prior to Election Day but fail to update their existing voter registration. (Hr’g Tr. (Krisel) 1-76.) At the Board office, staff have access to ballots for each of the 680 precincts located in Hamilton County. (Id. at 1-77.) The process of voting provisionally at the Board’s office is as follows. The voter first tells a Board staff member his or her new address. (Id.) The Board staff member then enters the address provided by the voter into the Board’s computeriz