Spencer v. Blackwell

347 F. Supp. 2d 528, 2004 U.S. Dist. LEXIS 22062, 2004 WL 2827758
CourtDistrict Court, S.D. Ohio
DecidedNovember 1, 2004
DocketC-1-04-738
StatusPublished
Cited by4 cases

This text of 347 F. Supp. 2d 528 (Spencer v. Blackwell) 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
Spencer v. Blackwell, 347 F. Supp. 2d 528, 2004 U.S. Dist. LEXIS 22062, 2004 WL 2827758 (S.D. Ohio 2004).

Opinion

ORDER GRANTING PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER

DLOTT, District Judge.

This matter comes before the Court on the Motion for Temporary Restraining Order and Preliminary Injunction (doc. #2) of Plaintiffs Marian and Donald Spencer. The Spencers seek to restrain Defendants J. Kenneth Blackwell, in his official capacity as the Secretary of State of Ohio, Inter-venor Defendant State of Ohio, the Hamilton County Board of Elections and its Chair Timothy Burke and members Michael Barrett, 1 Todd Ward, Daniel Radford and Director John Williams in their official capacities from discriminating against black voters in Hamilton County on the basis of race. If necessary, the Spencers seek to restrain Defendants from allowing challengers at the polls in Hamilton County. The Court held a telephone conference with all parties on Wednesday, October 27, 2004 and evidentiary hearings on Thursday, October 28, Friday, October 29, and Sunday, October 31, 2004, finishing late in the evening. Because of the grave due process and equal protection issues raised by the challenge process as it is to be employed in the November 2, 2004 election, the Court GRANTS Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction.

I. FACTUAL BACKGROUND

Plaintiffs Marian and Donald Spencer reside in Avondale, a predominantly African-American neighborhood in Cincinnati, Ohio. The Spencers are legally registered African-American voters who vote in ward 13, precinct H. Marian Spencer estimates that one hundred percent of the voters in her precinct are African-American. The Spencers allege that the Hamilton County Board of Elections and the Hamilton County Republican Party have combined to implement a voter challenge system at the polls on Election Day that discriminates against African-American voters.

Each precinct is run by its election judges. Those judges constitute the election officers of the precinct. Ohio law requires the Hamilton County Board of Elections to designate at least four competent electors, of which no more than half may be members of the same political party. Ohio Rev.Code § 3501.22(A). If more officials are necessary to expedite the voting process, the Board may appoint additional officials. Id. If for whatever reason the Board determines that there are not enough qualified electors in a precinct to serve as precinct officers, the Board may appoint individuals who are at least seventeen and properly registered to vote to serve as precinct officers. Ohio Rev.Code § 3501.22(B). The Board designates one of the election judges as the presiding judge; the presiding judge is a *530 member of the political party whose gubernatorial candidate won in that precinct in the last gubernatorial election. Ohio Rev. Code §§ 3501.22(A) and 3501.01(G). On October 22, 2004, the Hamilton County Republican Party filed for hundreds of challengers to be physically present in the polling places in order to challenge voters’ eligibility to vote. See Ohio Rev.Code § 3505.21. Challengers serve as election officials on Election Day and must take an oath of office. Ohio Rev.Code § 3505.21. 2 Defendant Tim Burke testified that the County Republican and Democratic parties have traditionally filed a list of their precinct executives to serve as challengers, but that those named challengers have not actually come to the polling places or participated in the eligibility challenges in the past.

This year, however, the Ohio Republican Party declared that it planned “to have representatives acting as challengers in as many precincts as possible ... to ensure that voters are not disenfranchised by fraud.” (Plaintiffs’ ex. 13.) To that end, beyond the typically filed list of precinct executive challengers who have traditionally not come to the polls, the Hamilton County Republican Party filed to have 251 additional challengers. (Plaintiffs’ ex. 3.) Tim Burke testified that the Hamilton County Democratic Party has also filed for hundreds of challengers in order to monitor Republican challengers. 3 Burke also testified that of the 251 challengers listed in Plaintiffs’ exhibit 3, two-thirds of them filed to be challengers in predominantly African-American precincts. The evidence presented at the hearing reflects that 14% of new voters in a majority white location will face a challenger listed in Plaintiffs’ exhibit 3, but 97% of new voters in a majority African-American voting location will see such a challenger. These statistics account only for challengers listed in Plaintiffs’ exhibit 3 and do not account for those listed in Plaintiffs’ exhibit 2. The Court heard no evidence, however, that the challengers listed in Plaintiffs’ exhibit 2, the typically filed list of precinct executives, would fail to appear at the polling places in this election.

Ohio law does not instruct a challenger how to challenge a voter’s eligibility or how to discern a voter’s possible ineligibility. A person attempting to vote at a polling place may be challenged not only by a challenger, but also by any voter then lawfully in the polling place, or by any of the judges or clerk of elections. Ohio Rev.Code § 3505.20. If any voter is so challenged, the presiding judge administers an oath to the voter, and the election judges then ask him or her a series of questions depending on what basis he or she has been challenged. Id. Ohio Revised Code section 3505.20 instructs that a person may be challenged on the grounds that (1) he or she is not a citizen, (2) he or she has not resided in Ohio for thirty days immediately preceding the election, (3) he or she is not a resident of the county or precinct where he or she has arrived to vote, or (4) he or she is not of legal voting age. The statute further provides that the presiding judge shall put such other questions to the person challenged under section 3505.20 as are necessary to test that potential voter’s qualifications. Id. at (D). If the person challenged cannot or will not answer the questions asked by the judges, is unable to answer the questions as they *531 were answered on the registration form corresponding to the voter’s name, refuses to sign the voter’s name, or for any other reason a majority of the judges believes that the person is not entitled to vote, “the judges shall refuse the person a ballot.” Id. The decision of the judges shall be final as to the right of the person challenged to vote in the election. This part of section 3505.20 conflicts with, and is thus super-ceded by, federal law because the Help America Vote Act (“HAVA”), 42 U.S.C. § 15301

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Bluebook (online)
347 F. Supp. 2d 528, 2004 U.S. Dist. LEXIS 22062, 2004 WL 2827758, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spencer-v-blackwell-ohsd-2004.