Service Employees International Union v. Husted (887 F. Supp. 2d 761, 2012)

United States District Court for the Southern District of Ohio 2012-08-27

The Public Health and Welfare

Citations

Full opinion text

PLENARY OPINION AND ORDER

ALGENON L. MARBLEY, District Judge.

TABLE OF CONTENTS

Page #

I.Introduction ....766

II. Background.............................................................766

A. Ohio’s Precinct System and Provisional Voting Regime................767

B. Legal Duties of Election Officials and “Poll-Worker Error”............770

III. Motion to Intervene .....................................................771

A. Procedural History..................................................771

B. Law and Analysis...................................................772

IV. Motion for Preliminary Injunction................................... 772

A. Summary...................................................... 772

B. Legal Background.............................................. 773

1. Ohio’s Precinct-Only Eligibility Requirement Complies with HAVA................................................... 773

2. The Hunter Litigation ...................................... 774

C. Preliminary Injunction Standard of Review...................... 776

D. Law and Analysis .............................................. 777

1. Likelihood of Success on the Merits.......................... 777

a. Equal Protection........................................

i. First Equal Protection Claim (Wrong-Precinct Ballot Prohibition).................................'..... 779

(a) Identifying the burden imposed by the Ohio law----779

(b) Whether the restriction if justified by sufficient state interests ..................................... 785

(c) The restriction fails review for invidiousness............788

ii. Second Equal Protection Claim (Ballot Envelope Deficiencies)..........................................790

iii. Third Equal Protection Claim (Disparate Impact of Poll-Worker Error by County)..........................792

iv. Fourth Equal Protection Claim (Unequal Treatment of Provisional Voters).....................................793

b. Substantive Due Process .....................................794

2. Irreparability of Harm...........................................795

3. Balancing of Harms .............................................795

4. Public Interest..................................................796

E. Appropriate Injunctive Relief........................................798

V. Motion to Modify the Consent Decree.....................................798

I. INTRODUCTION

These two related cases are before the Court for determination of the following matters: first, the Motion to Intervene filed by the Proposed Intervenors Roberta Van Atta, Emilie Illson, Thomas Kelly, and Charles Pennell in Service Employees International Union, Local 1 et al. v. Husted (“SEIU") (“Motion to Intervene,” Dkt. 65); second, the Motion for Preliminary Injunction filed by the Plaintiffs in SEIU (“Motion for Preliminary Injunction,” Dkt. 4); and third, the Motion to Modify the Con-' sent Decree filed by the Plaintiffs in Northeast Ohio Coalition for the Homeless et al. v. Husted (“NEOCH") (“Motion to Modify,” Dkt. 288).

The SEIU Plaintiffs’ Motion for Preliminary Injunction seeks to enjoin specific provisions of Ohio’s election code that disqualify provisional ballots cast in the wrong precinct or cast with deficiencies in the ballot envelope form, when the ballot’s deficiency is the result of an error by the poll worker. Similarly, the NEOCH Motion to Modify requests that the Court expands the terms of the NEOCH Consent Decree (“Decree,” Dkt. 210) to state that the county boards of elections (“Boards”) 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 because of poll-worker error. Because the requested relief in the Motion to Modify is encompassed within the Plaintiffs’ proposed injunction in the Motion for Preliminary Injunction, and because the basis for relief in the Motion to Modify depends on the determination of the constitutional violations at issue in the SEIU case, the Court will address the merits of the SEIU motions first.

II. BACKGROUND

These cases together represent the turbulent saga of Ohio’s provisional voting regime. On January 31, 2006, Ohio’s comprehensive election reform bill, House Bill 3, was passed by the Ohio General Assembly and signed into law. Shortly after the November 2006 general election, the NEOCH Plaintiffs brought their initial challenge to Ohio’s amended voter identification requirements. See NEOCH v. Brunner, No. C2-06-CV-896 (S.D.Ohio). The NEOCH lawsuit alleges, inter alia, that Ohio’s voter identification laws violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The parties in NEOCH initially resolved the lawsuit prior to any final adjudication on the merits of Plaintiffs’ constitutional claims by entering into the Decree in April 2010. The Decree, “among other provisions, mandated that the Board ‘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 certain deficiencies in the ballot, including being cast ‘in the wrong precinct, but in the correct polling place,’ were the result of poll-worker error.” Hunter v. Hamilton Cnty. Bd. of Elections, 685 F.3d 219, 223 (6th Cir.2011) (“Hunter I”) (quoting Decree, at ¶ 5).

Earlier this year, the Relators and Defendants sought to vacate the Decree’s terms. The Plaintiffs objected, however, and the Court upheld the validity of the Decree in its most recent opinion and order. See NEOCH v. Husted, No. 06-CV-896, 2012 WL 2711393, 2012 U.S. Dist. LEXIS 94086 (S.D.Ohio July 9, 2012). During the pendency of the Defendants’ request to vacate the Decree, Plaintiffs filed their Motion to Modify, and different (along with some of the same) organizations in the SEIU case filed a new challenge to Ohio’s provisional ballot-counting rules. The SEIU Plaintiffs seek a statewide injunction requiring that registered voters’ provisional ballots which are cast in the wrong precinct (so-called “wrong-precinct ballots”), or cast with technically deficient ballot envelopes, still be counted unless the poll worker who processed the deficient ballot affirms that the ballot deficiency is not the result of poll-worker error.

A. Ohio’s Precinct System and Provisional Voting Regime

The following explanation of developments in the legal landscape of Ohio’s voter eligibility and provisional ballot counting standards is relevant to both lawsuits. Following the 2000 general election, Congress turned its attention to the “significant problem” of voters being turned away from polls because election workers were unable to confirm the voters’ eligibility on the' spot. See Sandusky Cnty. Democratic Party v. Blackwell, 387 F.3d 565, 569 (6th Cir.2004). In 2002, Congress passed the Help America Vote Act, 42 U.S.C. § 15301 et seq. (“HAVA”), which “creat[ed] a system for provisional balloting ... under which a ballot would be submitted on election day but counted if and only if the person was later determined to have been entitled to vote.” Sandusky, 387 F.3d at 569 (“In essence, HAVA’s provisional voting section is designed to recognize, and compensate for, the improbability of ‘perfect knowledge’ on the part of local election officials.”). Under HAVA, any person at the polling place “who claims eligibility to vote, but whose eligibility to vote at that time and place cannot be verified” by the election worker, “shall be permitted to cast a provisional ballot.” See Sandusky, at 569-70 (quoting 42 U.S.C. § 15482(a)).

Before 2004, Ohio did not require an individual to present identification either when registering to vote or when voting. Federal law under HAVA contained only a limited voter identification requirement, applicable only to first-time voters who registered by mail. See 42 U.S.C. § 15483. The 2006 amendments to Ohio’s election code, however, “require that voters provide any of several specific types of identification in order to cast a regular ballot in state and federal elections held in Ohio.” Northeast Ohio Coalition for Homeless and Serv. Emp. Intern. Union, Local 1199 v. Blackwell, 467 F.3d 999, 1002 (6th Cir.2006); see also Ohio Rev.Code § 3505.18. Ohio’s voter identification requirements, which have been referred to as “exceptionally convoluted,” now provide thirteen different statutory reasons why an individual will be required to cast a provisional ballot on election day. See Ohio Rev.Code § 3505.181(A)(1)-(13). Plaintiffs blame Ohio’s complicated voter identification and provisional ballot laws for the relatively high rate of Ohio voters forced to cast provisional ballots rather than normal ballots in recent elections.

To cast a provisional ballot, the voter must first execute an affirmation stating that he or she is registered to vote in the jurisdiction and is eligible to vote in the election. Id. §§ 3505.181(B)(2); 3505.182. Rather than being “placed into the eScan on election day like a regular voter’s ballot,” the provisional ballot is then “sealed in a special ‘Provisional Ballot Affirmation Envelope.’ ” Hunter v. Hamilton Cnty. Bd. of Elections, 850 F.Supp.2d 795, 809 (S.D.Ohio 2012) (“Hunter II”). The Board later determines whether a provisional ballot is valid and required to be counted. If the Board is able to determine that the individual is eligible “to cast a ballot in the precinct and for the election in which the individual cast the provisional ballot,” the provisional ballot is counted. Ohio Rev.Code § 3505.183(B)(3)(b). Conversely, if the Board determines that “[t]he 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,” then “the ballot envelope shall not be opened and the ballot shall not be counted.” Id. § 3505.183(B)(4)(a)(ii).

Ohio divides its voting jurisdictions into precincts. Courts have recognized that “[t]he advantages of the precinct system are significant and numerous,” Sandusky, 387 F.3d at 569, although certain “troubling” aspects of Ohio’s precinct system have been identified as cause for great concern. See Hunter I, 635 F.3d at 243-44. Primarily implicated by Plaintiffs’ challenges here, as in Hunter, is Ohio’s strict disqualification of any ballot cast in the wrong precinct, regardless of the reason. See Ohio Rev.Code § 3505.183(B)(4)(a)(ii); State ex rel. Painter v. Brunner, 128 Ohio St.3d 17, 941 N.E.2d 782, 794 (2011) (holding that Ohio’s election statutes “do not authorize an exception based on poll-worker error to the requirement that ballots be cast in the proper precinct in order to be counted”).

Under the Ohio Supreme Court’s holding in State ex rel. Painter v. Brunner, provisional ballots cast in the wrong precinct must be summarily disqualified, even if the voter was not at fault, and even if the Board determines that the voter is lawfully registered to vote. See 941 N.E.2d at 794-95. The current application of Ohio law “penalizes the voter when a poll worker directs the voter to the wrong precinct.” Hunter I, 635 F.3d at 244 (adding that “the penalty, disenfranchisement, is a harsh one indeed”).

The problems created by Ohio’s rejection of all provisional ballots cast in the wrong precinct are exacerbated by the increasingly widespread prevalence of “multi-precinct” polling locations throughout the State. These are polling places, more often utilized in large urban counties, that, “[f]or financial and other administrative reasons ... serve as the polling location for several nearby precincts.” Id. at 223. Poll workers serving multi-precinct polling places are tasked with determining the correct provisional ballot to give each provisional voter based on the precinct in which the voter resides. The additional confusion created by multi-precinct polling locations increases the instances of so-called “wrong-precinct” provisional ballots given out to voters by poll workers, only to be disqualified upon further review by the county Board. Statewide, in these multiprecinct polling locations, registered voters who arrive at their correct polling location have received provisional ballots for the wrong precinct from the poll worker. See id. at 244 n. 24 (noting, “[a]s a result, fewer provisional ballots are likely to be counted in multiple-precinct polling places than in those that serve only a single precinct”).

B. Legal Duties of Election Officials and “Poll-Worker Error”

Before an election, the Boards train “election officials” (i.e., poll workers) and instruct them using the materials and directives provided by the Secretary. Ohio Rev.Code § 3501.22. Poll workers have significant and specific legal responsibilities, including determining whether an individual is eligible to vote in the precinct, Ohio Rev.Code. § 3505.181(C)(1). Poll workers must also direct an individual to his or her correct precinct if the individual attempts to vote in the wrong precinct. Id. As the Court explained in Hunter II, “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.” 850 F.Supp.2d at 808.

As summarized by the Sixth Circuit, “Ohio has created a precinct-based voting system that delegates to poll workers the duty to ensure that voters, provisional and otherwise, are given the correct ballot and vote in the correct precinct.” Hunter I, 635 F.3d at 243. The State of Ohio has defined “poll-worker error” as “ ‘when a poll worker acts contrary to or fails to comply with federal or Ohio law or directive issued by the Secretary of State.’ ” See Painter, 941 N.E.2d at 789 (quoting Directive 2010-79). As a matter of law, if a person casts a provisional ballot in the wrong precinct, it is always going to be due to poll-worker error unless the poll worker has instructed the individual where the correct polling location is and that individual “refuses to travel to the polling place for the correct [precinct] or to the office of the board of elections to cast a ballot.” Ohio Rev.Code §§ 3505.181(C)(2), 181(E)(1). Such an act would be an irrational and futile exercise by the voter, because, as required by Ohio Rev.Code § 3505.181(C)(1), the poll worker must first inform him that if he insists on voting in the wrong precinct, his ballot will not be counted.

Besides directing voters to the correct precinct, poll workers also have specific duties for ensuring that provisional ballots are cast properly. On election day, if an individual is required to cast a provisional ballot, the poll worker must first affirm that the individual has executed the provisional ballot affirmation statement before transmitting the ballot, along with “the voter information contained in the written affirmation executed by the individual,” for evaluation of its eligibility. Ohio Rev.Code §§ 3505.181(B)(2) — (3), 3505.182. If the individual declines to execute such an affirmation, the poll worker must include “the individual’s name [or other information] ... in a written affirmation in order for the provisional ballot to be eligible to be counted.” State ex rel. Skaggs v. Brunner, 120 Ohio St.3d 506, 900 N.E.2d 982, 990 (2008) (“Skaggs II”).

If the poll worker fails to ensure the provisional ballot envelope is transmitted with the required voter name, signature, or executed affirmation, the ballot may be disqualified. The Ohio Supreme Court has held that Boards must reject provisional ballots if the voter’s affirmation and/or other identifying information on the envelope form is incomplete, even where it is otherwise determinable by the Board who the voter is and that the voter is lawfully registered. Id. at 992-93. For example, under Ohio law as interpreted by Skaggs II and Painter, Boards reject provisional ballots of eligible, registered voters if there is a printed name on the affirmation form but no signature; a signature on the affirmation but no printed name; or where the printed name or signature is in the wrong place on the envelope. See id. at 988-93.

The Parties’ dispute in these cases is over whether the United States Constitution allows Boards to reject the provisional ballots of lawfully-registered voters that are cast in the wrong precinct, or are cast with deficiencies in the ballots envelope or voter affirmation, due to poll-worker error.

III. MOTION TO INTERVENE

A. Procedural History

On July 27, 2012, the business day preceding the scheduled hearing on Plaintiffs’ Motion for Preliminary Injunction, a “bipartisan” group of qualified voters for the upcoming November 2012 election (the “Proposed Intervenors”), filed a Motion to Intervene in the action, under Fed. R.Civ.P. 24(b)’s standard for permissive intervention. Counsel for the Proposed Intervenors appeared at the plenary hearing, and the Court heard arguments on the Motion to Intervene on the record. For the reasons provided by the Court at the July 30, 2012 plenary hearing, and those described below, the Proposed Intervenors’ Motion is DENIED.

B. Law and Analysis

Under Rule 24(b), “[o]n timely motion, the court may permit anyone to intervene who ... has a claim or defense that shares with the main action a common question of law or fact.” Fed.R.Civ.P. 24(b)(1)(B). Whether an applicant will be permitted to intervene under Rule 24(b) lies within the sound discretion of the trial court. Coal. to Defend Affirmative Action v. Granholm, 501 F.3d 775, 784 (6th Cir.2007) (“The denial of permissive intervention should be reversed only for clear abuse of discretion[.]”) (internal quotation marks and citations omitted). The Sixth Circuit has held that “[t]he timeliness of a motion to intervene is a threshold issue.” Blount-Hill v. Zelman, 636 F.3d 278, 284 (6th Cir.2011) (affirming that where the “proposed Interveners’ application was untimely — and would thus cause undue delay and prejudice to the existing parties as discussed above — the district court did not abuse its discretion in denying their application for permissive intervention”).

First, the Proposed Intervenors’ motion to intervene is untimely, coming after briefing had concluded on the Motion for Preliminary Injunction, and just one business day before the hearing on that motion. Allowing the applicants’ intervention will prejudice the existing parties and “will inhibit, not promote, a prompt resolution,” which is of particular concern in this election case. See Granholm, 501 F.3d at 784 (internal quotation marks omitted). There is no excuse for the Proposed Intervenors’ untimeliness, as their concerns regarding voter dilution have been ripe at least since the Complaint was filed in SEIU, and potentially since the time the Decree was entered into and the Boards began counting wrong-precinct ballots.

Second, the Court is assured that the interests of the Proposed Intervenors are adequately represented in this case by the Secretary, who has an official duty to represent the interests of all voters statewide. The Proposed Intervenors’ concern is the dilution of their voting rights resulting from counting out-of-precinct votes. The Secretary’s arguments in opposition to the Plaintiffs’ Motion for Preliminary Injunction address this precise concern of “split-precinct” voter dilution, discussed, infra Sections IV.D.l(a), IV.D.3. The Proposed Intervenors’ concerns are not “unique” to them. Counsel for the Secretary represented to the Court at the plenary hearing that the Secretary is defending the interests of all split-precinct voters, including the Proposed Intervenors. The Court finds that there is no substantive difference between the position taken by the Proposed Intervenors and that taken by the Secretary on this issue.

Given the untimeliness of their request, and the Secretary’s adequate representation of the concerns raised by the Proposed Intervenors, the Court finds the movants’ interest in participating in the litigation is outweighed by the prejudice to the existing parties and the delay such participation would necessitate. The Motion to Intervene is DENIED.

IV. MOTION FOR PRELIMINARY INJUNCTION

A. Summary

On June 22, 2012, the SEW Plaintiffs filed their Complaint and Motion for Preliminary Injunction. Plaintiffs contend that an injunction is necessary to prevent the irreparable and unconstitutional disqualification of thousands of lawfully-registered voters’ ballots in the upcoming November 2012 general election. Plaintiffs move this Court to require the Secretary to issue a Directive requiring that the Boards “may not reject any provisional ballots cast by lawfully-registered voters in the November 2012 general election” which are: (1) cast in the wrong precinct, unless the poll worker first affirms under penalty of perjury that he or she directed the voter to the correct precinct and informed the voter that his or her vote would not be counted if cast in the wrong precinct, but the voter refused to vote in the correct precinct; or (2) cast with a deficient ballot envelope form, but where “the County Board of Elections has otherwise been able to determine that the voter is a registered voter.”

The Parties have submitted their memoranda and documentary evidence in support of their positions, and oral argument was heard on the motion at the July 30, 2012 plenary hearing before this Court. The matter is therefore ripe for adjudication. The Court finds that the relevant factors weigh in favor of granting preliminary injunctive relief.

B. Legal Background

1. Ohio’s Precinct-Only Eligibility Requirement Complies with HAVA

In Sandusky, the Sixth Circuit held that HAVA’s passage did not disturb Ohio’s requirement that individuals must cast their ballots in the correct precinct to have their votes counted. See Sandusky, 387 F.3d at 577-78 (holding that “being eligible under State law to vote means eligible to vote in this specific election in this specific polling place”). The Sandusky Court addressed whether HAVA “require[d] that all states count votes ... cast by provisional ballot as legal votes, even if cast in a precinct in which the voter does not reside, so long as they are cast within a ‘jurisdiction’ ” in which the voter resides. Id. at 568. The Court concluded that “in Ohio, HAVA requires that a provisional ballot be issued only to voters affirming that they are eligible to vote and are registered to vote in the precinct in which they seek to cast a ballot.” Id. at 576 (adding, “[n]o one should be ‘turned away’ from the polls, but the ultimate legality of the vote cast provisionally is generally a matter of state law”).

The relevance of Sandusky to the Plaintiffs’ challenges to Ohio law, however, is limited. Sandusky was decided before Ohio instituted its amended Voter ID requirements in 2006. Although Sandusky establishes that Ohio’s precinct eligibility requirement complies with the federal provisional-ballot regime created under HAVA, that case did not address the constitutionality of the precinct eligibility requirement as applied to provisional ballots cast in the wrong precinct as a result of poll-worker error. While “[tjhere is no reason to think that HAVA, which explicitly defers determination of whether ballots are to be counted to the States, should be interpreted as imposing upon the States a federal requirement that out-of-precinct ballots be counted,” id. at 578, there is every reason to believe that the Constitution imposes such a requirement — at least when the provisional ballot is cast out-of-precinct because of an intervening poll-worker error.

2. The Hunter Litigation

The Hunter Litigation raised a number of the same constitutional issues raised by the Plaintiffs here. That case involved the provisional-ballot recount procedures of the Hamilton County Board following the 2010 Hamilton County election for juvenile court judge. Like the Plaintiffs in this case, Tracie Hunter, plaintiff and candidate for the juvenile judge seat, sought a temporary restraining order and preliminary injunction in this Court, alleging federal due process and equal protection violations after the defendant Hamilton County Board’s initial ballot count placed her 23 votes behind opponent John Williams. This Court granted Hunter’s motion for preliminary injunction in part, and ordered the Board immediately to begin an investigation into whether poll-worker error contributed to the rejection of certain provisional ballots that were east in the wrong precinct. See Hunter v. Hamilton Cnty. Bd. of Elections, No. 10-CV-820, 2010 WL 4878957 (S.D.Ohio, Nov. 22, 2010) (Dlott, C.J.).

Pursuant to the Court’s orders, the Secretary of State “issued several directives to facilitate the Board’s investigation,” and “[t]hose directives soon became the subject of [Williams’s] action for a writ of mandamus,” filed in the Ohio Supreme Court in Painter. Hunter II, 850 F.Supp.2d at 799-800. The Painter Court “concluded that [the Secretary’s] postelection instructions to the Board of Elections were not justified by Ohio law or this Court’s orders [in the Decree],” and made the following specific holdings of state law relevant to this case:

(1) “there is no exception to the statutory requirement that provisional ballots be cast in the voter’s correct precinct,”; (2) “election officials err in presuming poll-worker error because in the absence of evidence to the contrary, [poll workers] ... will be presumed to have properly performed their duties in a regular and lawful manner and not to have acted illegally or unlawfully”; and (3) statistical analysis is not proper evidence of poll-worker error.

Hunter I, 635 F.3d at 239 (internal citations omitted) (stating, however, that “these state-law issues do not resolve the federal constitutional question in this case”).

Following Painter, Secretary Husted rescinded and replaced Brunner’s directives, and certified the results of the Hunter-Williams electoral race as of the date preceding the Board’s investigations into poll-worker error. See Hunter II, 850 F.Supp.2d at 799-800. Hunter sought an emergency order in this Court to enforce the preliminary injunction, which the Court granted 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.” Id. at 800. The Board appealed the district court’s order to the Sixth Circuit. A unanimous three-judge panel affirmed this Court’s preliminary injunction, and affirmed, in part, the court’s latter order granting the emergency motion to enforce the injunction. See Hunter I, 635 F.3d at 247, rehearing, en banc, denied, 2011 U.S.App. LEXIS 26342 (6th Cir., Mar. 29, 2011), application denied, — U.S. —, 131 S.Ct. 2149, 179 L.Ed.2d 933 (2011).

The Sixth Circuit first established its jurisdiction over the federal constitutional challenges to the actions taken by Ohio officials under the color of state law, and rejected defendants’ requests that it abstain from review. See id. at 232-34. The court then reviewed the district court’s determinations on the likelihood of success of the plaintiffs’ alleged Equal Protection and Due Process Clause claims under the Supreme Court’s “balancing approach applied to constitutional challenges to election regulations.” Id. at 238 (citing Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 190, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008)).

The Sixth Circuit began by noting that, “[cjonstitutional concerns regarding the review of provisional ballots by local boards of elections are especially great” because “the review of provisional ballots occurs after the initial count of regular ballots is known,” and because of the “quasi adjudicatory-type action” required by the Board’s determination of eligibility and counting of provisional ballots. Id. at 235 (“In contrast to more general administrative decisions, the cause for constitutional concern is much greater when the Board is exercising its discretion in areas relevant to the casting and counting of ballots, like evaluating evidence of poll-worker error.”) (internal quotations omitted).

On plaintiffs’ equal protection challenge to the Board’s inconsistent treatment of different groups of provisional ballots in its investigation for evidence of poll-worker error, the Sixth Circuit “agree[d] with the district court’s analysis,” and “conclude[d] that there is a strong likelihood of success on this equal-protection claim which weighs heavily in favor of the district court’s grant of a preliminary injunction.” Id. at 236-43. Although the Hunter Court’s fact-specific conclusions on the “as-applied” equal protection claims regarding the Hamilton Board’s treatment of the 849 provisional ballots are limited to its context, the Plaintiffs’ equal protection claims in this case require the Court to apply the same legal framework and analysis as applied by the Sixth Circuit in Hunter. See, infra Section IV.B.2.

The Plaintiffs’ substantive due process claim in this case is identical to the one asserted in Hunter. The Hunter plaintiffs “presented] the argument that failure to count provisional ballots cast in an incorrect precinct due to poll-worker error violates the Due Process Clause.” Id. at 243. On this general challenge, the Sixth Circuit stated that “we have substantial constitutional concerns regarding the invalidation of votes cast in the wrong precinct due solely to poll-worker error” and that “[a]rguably, these two provisions [Ohio Rev. Code §§ 3505.181(C) and (B)(4)(a)(ii) ] operate together in a manner that is fundamentally unfair to the voters of Ohio, in abrogation of the Fourteenth Amendment’s guarantee of due process of law.” Id. (concluding, “[t]o disenfranchise citizens whose only error was relying on poll-worker instructions appears to us to be fundamentally unfair”). The Court remanded the due process claim to be decided by the district court in the first instance, as the parties had not fully briefed the issue. See id. at 244.

On its review of the additional equitable factors influencing the district court’s preliminary injunction, the Sixth Circuit recognized that “both the state and the voting public have interests at stake.” Id. (“States are primarily responsible for regulating federal, state, and local elections ... and have a strong interest in their ability to enforce state election law requirements____ Members of the public, however, have a strong interest in exercising the fundamental political right to vote.”) (internal citations omitted). The equitable factors in that case “support[ed] the district court’s grant of a preliminary injunction.” Id. at 245 (vacating only part of the district court’s subsequent emergency order because it “in effect, modified] the November 22 order — without prior notice to Defendants or an opportunity for a hearing”). The Sixth Circuit remanded “to the district court in the first instance, applying the uniformity requirement of Bush v. Gore, to direct the Board how to proceed” regarding the remaining disputed ballots. Id. at 246.

The Sixth Circuit in Hunter I recognized that counting wrong-precinct ballots could have statewide equal protection implications, see id. at 242, but ruled that “to the extent that Ohio election procedures present equal-protection and due-process problems in local contests in other counties, they may be resolved in separate litigation.” Id. (“The inconsistent treatment of provisional ballots across Ohio counties and the precise degree of inequality from county to county tolerated by the Constitution is not at issue here.”). That “hypothetical statewide challenge” foreseen by the Hunter I Court has now arrived in the form of the SEIU Plaintiffs lawsuit.

In Hunter II, on remand to this Court, the Board moved to dismiss and for summary judgment, and the Court held a three-week bench trial. In its final merits decision on the plaintiffs’ equal protection claims, the Court ruled that “equal protection demanded that the Board consider right-location, wrong precinct [provisional] ballots on the same terms as ballots cast at the Board office.” Hunter II, 850 F.Supp.2d at 840 (also finding, however, “there was insufficient evidence presented at the permanent injunction hearing for the Court to conclude that poll-worker error was the reason certain voters did not complete the affirmation statement on the provisional ballot envelope”).

The Court was unable to make a final ruling on the plaintiffs’ claim that the Board’s failure to count the wrong-precinct ballots due to poll-worker error violated the Due Process Clause because the plaintiffs had not provided notice for such challenges to the Ohio Attorney General’s office as required by Fed.R.Civ.P. 5.1(a). Despite lacking “jurisdiction to order a remedy,” the Court concluded, based on the full record before it, that Ohio Rev. Code § 3505.181(C)(1) — delegating to poll workers the duty to direct voters to the correct precinct — and § (B)(4)(a)(ii) — providing that provisional ballots cast in the wrong precinct shall not be counted under any circumstance — violate the Due Process Clause of the Fourteenth Amendment, at least “where evidence of poll-worker error exist.” See id. at 843, 846-47.

Because the Hunter Court lacked jurisdiction to issue a final ruling on the constitutionality of Ohio’s provisional ballot laws, Painter’s requirement that the Boards disqualify wrong-precinct provisional ballots cast due to poll-worker error, unless protected by the Decree, remains the law of the state. The Plaintiffs in these cases bring their current challenges to enjoin this provision of Ohio law.

C. Preliminary Injunction Standard of Review

The Plaintiffs’ request to enjoin the Secretary from enforcing certain provisions of Ohio law in the upcoming November 2012 election invokes the four-factor balancing test for determining whether an injunction is appropriate under Fed.R.Civ.P. 65. The Court must weigh the following factors:

(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by the issuance of the injunction.

Hunter I, 635 F.3d at 233.

These four factors “guide the discretion of the district court[;]” however, “they do not establish a rigid and comprehensive test,” Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 102 (6th Cir.1982). Whether the combination of the factors weighs in favor of issuing injunctive relief in a particular case is left to the discretion of the district court. See Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir.2000); see also Purcell v. Gonzalez, 549 U.S. 1, 4-5, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006) (in reviewing an application to preliminarily enjoin operation of Arizona’s voter identification procedures, the Supreme Court recognized courts’ need to “weigh, in addition to the harms attendant upon issuance or nonissuance of an injunction, considerations specific to election cases additional exigencies,” and stated these complex determinations required “deference to the discretion of the District Court”).

The Secretary argues that, to meet their burden for obtaining a preliminary injunction, Plaintiffs must “establish [their] case” by “clear and convincing evidence.” (Secretary Opp., Dkt. 28, at 10) (relying on Damon’s Rests., Inc. v. Eileen K Inc., 461 F.Supp.2d 607, 621 (S.D.Ohio 2006)). While the Sixth Circuit has stated that “the proof required for the plaintiff to obtain a preliminary injunction is much more stringent than the proof required to survive a summary judgment motion,” Leary, 228 F.3d at 739, it is important that Defendants do not misunderstand the nature of a court’s balancing exercise for weighing the merits of a preliminary injunction request. The Sixth Circuit has held that “a party is not required to prove his case in full at a preliminary injunction hearing and the findings of fact and conclusions of law made by a court granting the preliminary injunction are not binding at trial on the merits.” Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 542 (6th Cir.2007) (citations omitted).

A plaintiff has “the burden of establishing a clear case of irreparable injury and of convincing the Court that the balance of injury favor[s] the granting of the injunction.” Garlock, Inc. v. United Seal, Inc., 404 F.2d 256, 257 (6th Cir.1968). In the election law context, “[t]hese [four] factors are not prerequisites that must be met, but are interrelated considerations that must be balanced together,” as opposed to each one imposing a distinct evidentiary burden on the Plaintiffs. Northeast Ohio Coalition for the Homeless v. Blackwell, 467 F.3d 999, 1009 (6th Cir.2006) (stating, “[f]or example, the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movants will suffer absent the stay”).

D. Law and Analysis

Plaintiffs bring their constitutional claims under 42 U.S.C. § 1983. A claim under 42 U.S.C. § 1983 has two elements: (1) the defendant must be acting under the color of state law; and (2) the offending conduct must deprive the plaintiff of rights secured by federal law. See League of Women Voters, 548 F.3d at 475. There is no dispute that the Secretary acts under the color of state law when enforcing Ohio’s election laws. The dispute here is over whether his actions and/or directives deprive Plaintiffs’ members of their constitutional rights.

1. Likelihood of Success on the Merits

As the Supreme Court has recognized, “[especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.” Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); see also Harper v. Va. Bd. of Elections, 383 U.S. 663, 670, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) (stating that restrictions on fundamental rights must be “closely scrutinized and carefully confined”).

Recent experience proves that our elections are decided, all too often, by improbably slim margins — not just in local races, see e.g., Hunter I, 635 F.3d at 222, but even for the highest national offices. See, e.g., Bush v. Gore, 531 U.S. 98, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000). Any potential threat to the integrity of the franchise, no matter how small, must therefore be treated with the utmost seriousness. The Supreme Court has expressed its confidence that “the possibility that qualified voters might be turned away from the polls would caution any district judge to give careful consideration to the plaintiffs’ challenges.” Purcell, 127 S.Ct. at 7. This Court, most assuredly, will not allow the integrity of the franchise to be sullied.

a. Equal Protection

Plaintiffs bring both facial and “as-applied” equal protection challenges to Ohio’s provisional ballot-counting laws. First, Plaintiffs claim that the application of Ohio Rev.Code § 3505.183(B)(4) to disqualify provisional ballots of lawfully-registered voters given the wrong-precinct ballot by poll workers or whose ballots contain technical errors, imposes a “severe burden” on the right to vote that is not supported by any compelling or legitimate state interest. Second, Plaintiffs claim that in light of the Decree, Ohio’s law arbitrarily treats provisional ballots disparately based on the type of identification provided by the voter, in violation of equal protection. Third, Plaintiffs claim that the evidence shows that Ohio’s system for processing provisional ballots subjects provisional voters to significantly differing rates of poll-worker error based on the precinct or county in which they reside, resulting in arbitrary and unequal treatment that has a disproportionate effect on urban voters.

The Secretary maintains that the incidental burdens imposed by Ohio law’s disqualification of all wrong-precinct ballots do not rise to violations of equal protection, and do not constitute “severe burdens” on the right to vote. The Secretary argues that the precinct rule is a reasonable, nondiscriminatory restriction that applies uniformly to all voters, and as such requires only a rational basis. Under this rational basis review, the Secretary contends that the rule is permissible and within the State’s prerogative of running fair and efficient elections. The Secretary claims that Plaintiffs’ evidence fails to provide reliable information about poll-worker error and does not establish that wrong-precinct ballot rejections undermine the integrity of the election. Further, the Secretary refutes Plaintiffs’ evidence of a disparate impact on the rates of disqualified ballots in urban counties.

This Court analyzes Plaintiffs’ claims under the same standards developed by the Supreme Court for equal protection challenges to state election laws, and applied by the Sixth Circuit in Hunter. The Supreme Court most recently held in Crawford v. Marion County Election Board, that “a court evaluating a constitutional challenge to an election regulation [must] weigh the asserted injury to the right to vote against the ‘precise interests put forward by the State as justifications for the burden imposed by its rule.’ ” 553 U.S. 181, 190, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008) (quoting Anderson v. Celebrezze, 460 U.S. 780, 789, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983)). A “severe” restriction on the right to vote can only be “justified by a narrowly drawn state interest of compelling importance,” id., whereas “when a state election law provision imposes only reasonable, nondiscriminatory restrictions” on constitutional rights, “ ‘the State’s important regulatory interests are generally sufficient to justify the restrictions.” Burdick v. Takushi, 504 U.S. 428, 434, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) (quoting Anderson, supra, at n. 9).

There is generally no “litmus test for measuring the severity of a burden that a state law imposes on a political party, an individual voter, or a discrete class of voters,” Crawford, 553 U.S. at 191, 128 S.Ct. 1610, but the Court concluded in Crawford that “even rational restrictions on the right to vote are invidious if they are unrelated to voter qualifications,” warranting stricter scrutiny. Id. at 189, 128 S.Ct. 1610 (relying on Harper v. Virginia Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) (involving a poll tax)). Any burden a state law places on the right to vote, no matter how “slight that burden may appear, as Harper demonstrates, it must be justified by relevant and legitimate state interests ‘sufficiently weighty to justify the limitation.’ ” Crawford, 553 U.S. at 191, 128 S.Ct. 1610 (quoting Norman v. Reed, 502 U.S. 279, 288-89, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992)).

In addition, the Equal Protection Clause protects a citizen’s right to vote from “arbitrary and disparate treatment.” See Hunter I, 635 F.3d at 233 n. 13 (citations omitted). Each qualified voter in the State has an individual fundamental constitutional right to vote on equal terms with every other. See Bush v. Gore, 531 U.S. 98, 104-05, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000) (“The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.”).

For each of Plaintiffs’ claims, “after identifying the burden” imposed by the provisions of Ohio law on the “discrete class of voters,” the Court “must identify and evaluate the interests put forward by the State as justifications for the burden imposed by its rule, and then make the hard judgment” of whether the Secretary has advanced “relevant and legitimate state interests [that are] ‘sufficiently weighty to justify the limitation.’ ” Crawford, 553 U.S. at 189-91, 128 S.Ct. 1610 (additional citations omitted).

i. First Equal Protection Claim (Wrong-Precinct Ballot Prohibition)

Plaintiffs’ chief claim for relief alleges that Ohio Rev.Code § 3505.183(B)(4)(a)(ii) “severely” burdens the right to vote by mandating the rejection of lawfully-registered voters’ provisional ballots when the poll worker errs by providing the voter with a ballot for the wrong precinct. (See SAC ¶ 79.) Plaintiffs argue the State has provided no legitimate interest, let alone a compelling interest, to justify the law’s arbitrary disenfranchisement. The Secretary claims that the restrictions imposed by Ohio’s provisional ballot laws are not “severe,” and justifies the strict prohibition on all wrong-precinct ballots as “a ‘reasonable, nondiscriminatory restriction’ that is necessary for the efficient and fair conduct of the election.”

(a) Identifying the burden imposed by the Ohio law

Much of the factual basis upon which the Court relies for its findings is uncontested, or has already been established by this Court or the courts in Hunter. Additionally, Plaintiffs have submitted a substantial amount of statewide ballot counting and rejection data, statistical reports, and documentary evidence, sufficient to establish a strong likelihood that in the past few statewide elections poll-worker error has resulted in the disqualification of hundreds— if not thousands — of wrong-precinct provisional ballots east by otherwise lawfully-registered voters.

That poll workers err — and will continue to err in 2012 — by providing qualified voters with wrong-precinct ballots is not a contested matter. The Secretary does not dispute the factual reality that in each of the recent statewide elections, registered voters arriving at the correct polling place have had their provisional ballots disqualified for being cast in the wrong precinct. According to the data gathered from the county boards of elections pursuant to the Secretary’s directives, in the most recent (non-Presidential) general election in 2011 a total of 3,380 wrong-precinct provisional ballots were given by poll workers to Ohio voters who arrived at their correct polling places. Of this group of wrong-precinct provisional ballots, 1,826 were summarily disqualified as required under Ohio Rev. Code § 3505.183(B)(4)(a)(ii) and another 1,554 were counted only as a result of the NEOCH Decree’s requirements. While the number and frequency of wrong-precinct ballot disqualifications vary county to county, the problem as a whole is systemic and statewide.

There is reason to believe that the number of wrong-precinct ballots will be even higher in the upcoming November 2012 election, due to the inevitable increase in voter turnout for every presidential election compared to the 2011 “odd-year” election. There is, then, a high statistical probability that in the upcoming election thousands of lawfully-registered voters will arrive at the correct polling place only to receive a provisional ballot from the poll worker for the wrong precinct. Under Painter, those ballots will be rejected in the same manner as in the past — that is, unless the law is enjoined such that all provisional ballots are protected from disqualification due to poll-worker error, not just the ones covered under the Decree.

The Secretary contends that the evidence suggests the problem of wrong-precinct provisional ballot rejection is “improving,” relying on the statistics showing that the percentage of total rejected provisional ballots statewide declined from 2008 to 2010. Plaintiffs effectively refute any demonstrable improvement between 2008 and 2010, however, through the more relevant statistics showing the rejected wrong-precinct provisional ballots at issue in this case, as a percentage of total rejected provisional ballots, actually increased from 2008 to 2010. The number of wrong-precinct provisional ballots statewide (14,355) were 36% of the 39,989 total rejected provisional ballots in 2008, compared with 45% (5,309) of the 11,775 total rejected provisional ballots statewide in 2010. Moreover, the obvious explanation for a decrease in total rejected provisional ballots after 2008 is the implementation of the Decree’s orders, which beginning with the 2010 statewide election significantly reduced wrong-precinct disqualifications due to poll-worker error. For the remaining rejected wrong-precinct ballots, no improvement has been demonstrated.

At oral argument, counsel for the Secretary made open-ended assertions of “gaps in the Plaintiffs’ evidence” of poll-worker error; however, the Secretary does not refute the accuracy of any particular set of data regarding the provisional ballot rejection rates obtained from the Boards. Instead, the Secretary contends that the Plaintiffs’ evidence of the poll-worker error problem is “stale,” and cannot be relied upon to predict similar rates of wrong-precinct rejections in the upcoming 2012 election. Specifically, the Secretary points to the recent directives issued in the past year which: (1) require that all poll workers be trained (or retrained) within 60 days before the November 2012 election in directing wrong-precinct voters to the right place and proper completion of the provisional ballot requirements; (2) require the simplification of the provisional ballot envelope and affirmation form; and (3) detail the process of how provisional ballots must be processed under Ohio law and the Decree.

The State’s efforts in poll-worker training and simplifying the provisional voting procedures and ballot forms are well-taken by this Court, but these measures alone do not address the basic problem demonstrated by the Plaintiffs. The Secretary issued numerous training directives regarding provisional ballots in prior years, too, without any apparent improvement in wrong-precinct poll-worker error. After the data are compiled from the upcoming election, the Court’s final review of the full record may reveal an improvement in the numbers of wrong-precinct provisional ballots. At this stage, however, Plaintiffs’ evidence is more than sufficient to establish a defined class of provisional voters likely to be disenfranchised because of poll-worker error in the manner alleged by Plaintiffs. See Certified Restoration, 511 F.3d at 542 (stating, “a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits”) (internal quotation marks omitted).

The evidence further confirms that, of the thousands of rejected wrong-precinct/correct location provisional ballots, the vast majority will be disqualified as a result of poll-worker error. If the poll worker follows his statutory mandate, a prospective voter may only be permitted to cast a wrong-precinct provisional ballot after having been directed to the correct precinct, and informed by the poll worker that casting the wrong-precinct ballot will result in her vote not being counted. See Ohio Rev.Code § 3505.181(C)(l)-(2). It is common sense that no rational voter who arrives at the correct polling place would ever refuse to east a provisional ballot in the correct precinct, and that logical conclusion is borne out by the evidence. No party has identified a single example, from the past four years’ elections, of a wrong-precinct provisional ballot being cast because the voter refused to vote in the correct precinct. Every documented instance in the record of a correct loeation/wrong-precinct ballot being disqualified was the result of the poll-worker failing in his or her statutory duty to “ensure that voters ... are given the correct ballot and vote in the correct precinct.” Hunter I, 635 F.3d at 243.

Counsel for the Secretary insisted at oral argument that poll workers cannot be blamed for every wrong-precinct provisional ballot that is cast, and asserted that other explanations exist for why a voter might receive and cast a wrong-precinct ballot. Counsel for the Secretary admitted, however, that at this stage in the litigation, his proffered alternative reasons to explain wrong-precinct provisional ballots are merely speculative. See also Hunter I, 635 F.3d at 237 (similarly opining, “there may be more explanations for why the voter might have erred at the multiple-precinct polling locations than at the Board office, requiring a greater inference to conclude that the miscast ballot was a result of poll-worker error, but Defendants have not presented any persuasive rationales”).

The Sixth Circuit has already affirmed that when a lawfully-registered voter casts a wrong-precinct provisional ballot that was mistakenly given to him by the poll worker, Ohio law disqualifies that ballot “due to poll-worker error.” See id., 635 F.3d at 242-44. Based on the record evidence provided thus far, the Court must find that Plaintiffs have established a strong likelihood that thousands of lawfully-registered voters will be completely deprived of their right to vote under Ohio Rev.Code § 3505.183(B)(4)(a)(ii) in the upcoming election because of pollworker error. Although states have broad authority to impose reasonable restrictions in election laws, see Anderson, 460 U.S. at 788, 103 S.Ct. 1564, such a burden on the right to vote must be justified by sufficient interests to pass constitutional muster. See Crawford, 553 U.S. at 190-91, 128 S.Ct. 1610.

The Secretary does not dispute that Ohio’s precinct eligibility requirement imposes some restrictions on the right to vote, including by disqualifying wrong precinct provisional ballots. Rather, the Secretary’s primary position in defense of Ohio’s prohibition on counting wrong-precinct ballots cast due to poll-worker error is that its restriction on voters’ rights is not a severe burden, and is justified by the State’s interests in running elections fairly and efficiently.

Relying primarily on the Supreme Court’s decision in Burdick for support, the Secretary argues that strict scrutiny review does not apply to Ohio’s prohibition on wrong-precinct ballots, as Plaintiffs contend it should, simply because a small number of voters’ provisional ballots will be disqualified as a result. See Burdick, 504 U.S. at 432-34, 112 S.Ct. 2059 (stating, “to subject every voting regulation to strict scrutiny and to require that the regulation be narrowly tailored to advance a compelling state interest ... would tie the hands of States seeking to ensure that elections are operated equitably and efficiently”). While the Secretary admits that no regulation is perfect, he claims the burdens imposed by the wrong-precinct ballot prohibition are “reasonable, nondiscriminatory” constraints “necessary for the efficient and fair conduct of the election.”

The Secretary is correct that the Court will not require an election regulation to satisfy strict scrutiny simply because violating it results in the loss of the right to vote. See id. The Secretary is incorrect, however, in claiming that the severity of the burden imposed by the restriction challenged in this case should be viewed in the aggregate. In an equal protection challenge to an election law, courts must evaluate the reasonableness of the law’s particular burden on the individuals whose voting rights are allegedly violated by it. Where, as here, a discrete class of prospective voters challenges a regulation’s restriction on their right to vote, the burden must be evaluated according to its impact upon those plaintiffs, not the entire electorate.

The Supreme Court in Burdick, consistent with its approach from Anderson, mandates that:

[A] court considering a challenge to a state election law must weigh “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate ” against “the precise interests put forward by the State as justifications for the burden imposed by its rule,” taking into consideration “the extent to which those interests make it necessary to burden the plaintiffs rights.”

Burdick, 504 U.S. at 434, 112 S.Ct. 2059 (quoting Anderson, 460 U.S. at 789, 103 S.Ct. 1564) (emphasis added). In determining whether the disputed Ohio law meets the requirements of the Constitution, therefore, “the burden imposed by its rule” prohibiting wrong-precinct ballots must be weighed based on the “character and magnitude of the asserted injury” to the rights that Plaintiffs seek to vindicate. Id.

Plaintiffs’ constitutional challenge to “Ohio’s strict provisional ballot law requiring disqualification of ‘wrong precinct’ ballots without exception,” only seeks to vindicate the rights of “registered Ohio voters” whose ballots are “rejected for reasons attributable to poll-worker error.” Plaintiffs have been quite careful expressly to limit the contours of their claims, and the corresponding requested relief, to make it clear that they do not challenge Ohio’s precinct eligibility requirement as a whole, but merely its application to disqualify ballots of registered voters who are misdirected by poll workers.

As did the petitioners in Crawford, Plaintiffs “urge [the Court] to ask whether the State’s interests justify the burden imposed on ... a narrow class of voters.” Id. at 200, 128 S.Ct. 1610. The voters’ constitutional challenge in Crawford was ultimately unsuccessful, however, “[g]iven the fact that petitioners ha[d] advanced a broad attack on the constitutionality of SEA 483, seeking relief that would invalidate the statute in all its applications.” Id. (emphasis added). Therein lies the critical distinction between this case and Crawford, which renders the specific failure of the Ohio law’s prohibition here to make an exception for poll-worker error far more susceptible to this Court’s intervention. Plaintiffs do not challenge Ohio Rev.Code § 3505.183(B)(4)(a)(ii)’s precinct eligibility requirement “in all its applications” — only its provision disqualifying wrong-precinct ballots cast due to poll-worker error.

The Secretary insists that the burden must be weighed according to its aggregate impact on the total electorate, reasoning that the “consequence of running afoul of even the most reasonable restriction, such as registration deadlines, is a denial of the ability to vote.” But as a factual matter, it is simply not true that the consequence of every state election restriction is complete denial of the ability to vote, as it is with the Ohio law at issue here. In Crawford, for example, “[t]he severity of that burden [was] mitigated by the fact that, if eligible, voters without photo identification may cast provisional ballots that will ultimately be counted.” 553 U.S. at 199, 128 S.Ct. 1610.

More fatal to the Secretary’s aggregate view of the burden is that it does not correspond to the specific restriction challenged by the Plaintiffs here. It is only appropriate for the Court to weigh the scope of the burden corresponding to the particular legal restriction at issue in this case, not the law as a whole. Like the Voter ID law challenged in Crawford, where, “[f]or most voters who need them, the inconvenience of making a trip to the BMV, gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting,” the Ohio precinct requirement does not pose an unreasonable burden on most voters. As in Crawford, “[b]oth evidence in the record and facts of which we may take judicial notice, however, indicate that a somewhat heavier burden may be placed on a limited number of persons.” Id. (concluding, “[i]f we assume, as the evidence sugge