Lieberman v. Husted

900 F. Supp. 2d 767, 2012 WL 5278980, 2012 U.S. Dist. LEXIS 153695
CourtDistrict Court, S.D. Ohio
DecidedOctober 25, 2012
DocketCase No. 3:12-cv-297
StatusPublished
Cited by2 cases

This text of 900 F. Supp. 2d 767 (Lieberman v. Husted) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lieberman v. Husted, 900 F. Supp. 2d 767, 2012 WL 5278980, 2012 U.S. Dist. LEXIS 153695 (S.D. Ohio 2012).

Opinion

DECISION AND ENTRY OVERRULING PLAINTIFFS’ REQUEST FOR PRELIMINARY INJUNCTION; CONFERENCE CALL SET

WALTER H. RICE, District Judge.

Following their removal from the Montgomery County Board of Elections (“the Board”) by Defendant Jon Husted, Plaintiffs Dennis Lieberman and Thomas Ritchie, Sr., filed suit against Husted, individ[771]*771ually and in his capacity as the Secretary of State of Ohio. Plaintiffs alleged that Husted violated their procedural and substantive due process rights, their First Amendment rights, and their right to equal protection of the law as guaranteed by the Constitution of the United States. They also alleged wrongful termination in violation of Ohio law.

In addition to money damages, Plaintiffs sought temporary and permanent injunctive relief in the form of an order deferring any action to replace them as members of the Board and requiring the Secretary of State to restore them to their previous positions. This matter is currently before the Court on Plaintiffs’ request for a preliminary injunction. The Court held a hearing on September 21, 2012, and the parties subsequently filed post-hearing briefs.

I. Background

Under Ohio law, each county Board of Elections consists of two Republicans and two Democrats. See Ohio Revised Code § 3501.06. In the months leading up to this lawsuit, members of the Montgomery County Board of Elections included Republicans Greg Gantt and Kay Wick, and Democrats Thomas Ritchie, Sr., and Dennis Lieberman. Plaintiff Ritchie, the Chairman of the Board, was first appointed to the Board in 1995, having been appointed to his current term of four years on February 28, 2010. Plaintiff Lieberman has served on the Board since 2001, having been appointed to his current four-year term on February 28, 2012.

In many places throughout the State of Ohio, the 2004 presidential election was plagued by long lines at the polls. In an effort to remedy the problem, the State decided to allow county boards of elections to establish early voting hours, whereby voters could appear in person to cast absentee ballots in the weeks leading up to an election. Since 2005, early voting, including early weekend voting, has been offered in Montgomery County and elsewhere around Ohio. Hr’g Tr. at 44-46.

In Montgomery County, 29,000 people cast early in-person votes in the 2008 presidential election. Of those, 12,000 people, many of them minorities, cast their votes on the weekends. Lieberman Aff. ¶¶ 12-13; Hr’g Tr. at 57. In December of 2011, after the Ohio legislature sought, ultimately unsuccessfully, to eliminate the last three days of early in-person voting, the Montgomery County Board of Elections unanimously voted to continue early in-person weekend voting for the 2012 presidential election, except for the last weekend before the election, relying on Ohio Revised Code § 3509.03, which requires the polls to close by 6:00 p.m. on the last Friday before the election. Defs.’ Ex. 3. By spreading out the voting over the course of several weeks, the Board was able to eliminate some precincts and polling places on Election Day, saving the county almost $200,000. Hr’g Tr. at 46.

On August 15, 2012, the Ohio Secretary of State, Republican Jon Husted, issued Directive 2012-35 to all county boards of elections. Defs.’ Ex. 4. The Directive concerned “In Person Absentee Voting Days and Hours.” In that Directive, Husted acknowledged that local boards of elections have the authority to set their own hours of operation for in-person absentee voting, but noted that this leads to a “patchwork” of policies that vary from county to county. Seeking “to level the playing field on voting days and hours during the absentee voting period in order to ensure that the Presidential Election in Ohio will be uniform, accessible for all, fair, and secure,” Husted directed all county boards of elections to adopt the “regular business hours” set forth in the Directive, on Mondays [772]*772through Fridays between October 2, 2012, and November 2, 2012. Id.

The Board met early on the morning of Friday, August 17, 2012, to discuss Directive 2012-35. According to the transcript of that meeting, Lieberman, referring to the Directive, initially stated, “from my read of this he’s eliminated all weekend early voting.” Defs.’ Ex. 6, at p. 6. Lieberman believed that Husted lacked authority to eliminate early weekend voting. In Lieberman’s view, eliminating early weekend in-person voting would be unconstitutional because it would disparately impact minority voters. In addition, each local board of elections was required to “keep its offices and rooms open for a period of time that the board considers necessary for the performance of its duties,” Ohio Revised Code § 3501.10(B), and to “[f]ix and provide the places ... for holding elections,” Ohio Revised Code § 3501.11(B). In 2011, the Board determined that early weekend in-person voting was necessary for the 2012 presidential election.

Lieberman therefore stated that he was “going to move that we do not follow the directive when it comes to weekend voting and that we keep our schedule for weekend voting.” Defs.’ Ex. 6, at p. 6-7. He explained that, in his opinion, because the Directive was completely silent on the subject of weekend voting, his motion was not inconsistent with it.1 Id. at p. 7. Lieberman made a motion “to follow the directive as it applies from Monday-Friday” but to keep in place the early weekend hours that had been previously adopted by the Board. Id.

The vote split down party lines, with Ritchie and Lieberman voting in favor of the motion, and Gantt and Wick voting against it. Under Ohio law, in cases of a tie vote, the Board is to submit the matter to the Secretary of State within 14 days, “who shall summarily decide the question” and whose decision is final. Ohio Revised Code § 3501.11(X). The parties agreed to submit their position papers on the tie vote to the Secretary of State by August 22, 2012, and then agreed to recess the meeting. Defs.’ Ex. 6, at p. 11-12.

Shortly after the morning meeting ended, Betty Smith, the Director of the Montgomery County Board of Elections, notified the Secretary of State’s Office of the tie vote. Later that same morning, Matt Damschroder, Director of Elections for the Ohio Secretary of State, sent a letter to Ritchie, with copies to the other Board members.2 Damschroder stated that it had come to his attention that the Board had tied “on whether to fully implement Directive 2012-35 ... by adding days and hours not included in the Directive. Any days and hours other than those specifically delineated in the Directive is a violation of the Directive.” Defs.’ Ex. 7. Damschroder ordered the Board to reconvene that same afternoon “to rescind the motion that resulted in a tie this morning and act consistent with Directive 2012-35.” He warned that “[fjailure to act consistent with and voting in contravention of a Directive is at best nonfeasance and subjects a Board member to possible removal.” Id.3

[773]*773The Board met again that afternoon as directed. Lieberman reiterated his position that he did not believe that his motion was inconsistent with the Directive. Defs.’ Ex. 8, at p. 3. John Cumming, the Board’s legal advisor, agreed that the Directive was ambiguous as to whether local boards were permitted to maintain early weekend hours.

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900 F. Supp. 2d 767, 2012 WL 5278980, 2012 U.S. Dist. LEXIS 153695, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lieberman-v-husted-ohsd-2012.