Nos , , IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

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1 Case: Document: Filed: 09/21/2012 Page: 1 Nos , , IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1, et al., Plaintiffs-Appellees v. JON HUSTED, et al., Defendants-Appellants. On Appeal from the United States District Court for the Southern District of Ohio Case No. 2:12-cv PLAINTIFFS-APPELLEES SEIU LOCAL 1, ET AL. S MOTION FOR LEAVE TO FILE OVERLENGTH BRIEF IN THREE CONSOLIDATED APPEALS MICHAEL J. HUNTER CATHRINE J. HARSHMAN HUNTER, CARNAHAN, SHOUB, BYARD & HARSHMAN 3360 Tremont Road, Suite 230 Columbus, Ohio (614) / (614) Fax mhunter@hcands.com Counsel for All Plaintiffs-Appellees STEPHEN P. BERZON STACEY LEYTON BARBARA CHISHOLM DANIELLE LEONARD ALTSHULER BERZON LLP 177 Post Street, Suite 300 San Francisco, CA (415) / (415) Fax sberzon@altber.com Counsel for Plaintiffs-Appellees SEIU Local 1, USW, UAW Local 1005, UAW Local 863, UFCW Local 75, UFCW Local 880, UFCW Local 1059, and ICWUC

2 Case: Document: Filed: 09/21/2012 Page: 2 PENDA HAIR DONITA JUDGE UZOMA NKWONTA ADVANCEMENT PROJECT 1220 L Street, N.W., Suite 850 Washington, D.C (202) / Fax phair@advancementproject.org Counsel for Plaintiff-Appellee Ohio Organizing Collaborative

3 Case: Document: Filed: 09/21/2012 Page: 3 PLAINTIFFS-APPELLEES SEIU LOCAL 1, ET AL. S MOTION FOR LEAVE TO FILE OVERLENGTH BRIEF IN THREE CONSOLIDATED APPEALS Plaintiffs-Appellees ( Plaintiffs ) hereby move the Court for permission to exceed the 14,000 word limit applicable under Federal Rule of Appellate Procedure 32(a)(7)(B)(i) to their Answering Brief responding to the three Opening Briefs filed by of Appellant-Defendant State of Ohio ( Ohio ), Appellant- Defendant Secretary of State Jon Husted ( the Secretary ), and Appellants- Proposed Intervenors Thomas Kelly, et al., totally more than 35,000 words, in these three consolidated appeals. Despite Plaintiffs diligence in attempting to draft their brief within the word limit, including avoiding duplication in responding to the three briefs, there is a substantial need for an overlength brief of no more than 24,500 words in these circumstances, as demonstrated by the following facts: 1. The issues raised in these consolidated and expedited appeals, Nos , , and , are of great importance to all parties and to the public. These appeals are from the District Court s order granting a preliminary injunction ordering Defendant-Appellant Ohio Secretary of State Jon Husted ( Secretary ) to direct Ohio county boards of elections to count provisional ballots that are invalid under Ohio law because they were cast by registered voters in the wrong precincts as a result of poll-worker error, and to count provisional ballots that have technical defects in their ballot affirmation forms as a result of poll- 1

4 Case: Document: Filed: 09/21/2012 Page: 4 worker error; and the District Court s order denying a motion for permissive intervention in the case below. Decl. of Danielle Leonard ( Leonard Decl. ) Plaintiffs single Answering Brief in these consolidated appeals must respond to three separate merits briefs on the important constitutional issues raised here that were filed by each of the Secretary, Ohio, and the Proposed Intervenors. Ohio s brief addresses the District Court s preliminary injunction and constitutional holdings with respect to wrong precinct provisional ballots. The Secretary s brief addresses the preliminary injunction and constitutional holdings with respect to the counting of provisional ballots with defects in their ballot affirmations. The brief filed by Appellants-Proposed Intervenors challenges the entire injunction with respect to both wrong precinct and ballot affirmation issues, as well as the District Court s denial of the motion for permissive intervention. Combined, these three opening briefs total 35,078 words. Leonard Decl The factual record submitted in the District Court with respect to the preliminary injunction is extensive. The District Court had before it many thousands of pages of evidence reflecting the reasons that provisional ballots are miscast in recent elections throughout Ohio. This evidence contains minutes of boards of elections meetings, election day incident reports, and other records from the Secretary and boards regarding the casting and counting of provisional ballots throughout Ohio. Leonard Decl. 4. The District Court s preliminary injunction 2

5 Case: Document: Filed: 09/21/2012 Page: 5 was based on factual findings that the extensive record evidence demonstrated that nearly all wrong-precinct provisional ballots are caused by poll-worker error. RE 67 at Plaintiffs need to discuss this extensive evidence in responding to Appellants arguments that the District Court erred in granting this injunction. 4. Plaintiffs Answering Brief responds to all three Opening Briefs, and in doing so must address the District Court s weighing of the preliminary injunction factors, including the court s conclusion that Plaintiffs were likely to prevail on four separate constitutional claims: (i) that the invalidation of wrong-precinct provisional ballots due to poll-worker error severely burdens the right to vote without furthering any legitimate state interest, in violation of the Equal Protection clause of the Fourteenth Amendment of the U.S. Constitution; (ii) that Ohio s provisional ballot laws are fundamentally unfair in violation of the Constitution s guarantee of substantive due process; (iii) that Ohio s decision to apply different ballot-counting standards to two groups of provisional voters depending on the identification used to vote also violates the Equal Protection Clause; and (iv) that the invalidation of provisional ballots with incomplete or incorrectly completed ballot affirmation forms is an unjustifiable burden on the fundamental right to vote. In addition, Plaintiffs Answering Brief must also address Appellants-Proposed Intervenors argument that the District Court abused its discretion in denying the motion for permissive intervention. Leonard Decl. 5. 3

6 Case: Document: Filed: 09/21/2012 Page: 6 Plaintiffs have been diligent in attempting to comply with the word limitation established by the rules, and have minimized duplication in responding to the arguments in the three Opening Briefs, but believe that there is a substantial need for additional space to adequately address the extensive factual record and complex legal issues presented by these three appeals. Accordingly, Plaintiffs respectfully request the Court s permission in this expedited appeal, to file an Answering Brief of no more than 24,500 words. Dated: September 21, 2012 Respectfully submitted, /s/ Danielle Leonard By: Danielle Leonard for Plaintiffs-Appellees Stephen P. Berzon Stacey Leyton Barbara Chisholm Danielle Leonard ALTSHULER BERZON LLP 177 Post Street, Suite 300 San Francisco, CA (415) / (415) Fax sberzon@altber.com Counsel for Plaintiffs-Appellees SEIU Local 1, USW, UAW Local 1005, UAW Local 863, UFCW Local 75, UFCW Local 880, UFCW Local 1059, and ICWUC 4

7 Case: Document: Filed: 09/21/2012 Page: 7 Michael J. Hunter Cathrine J. Harshman HUNTER, CARNAHAN, SHOUB, BYARD & HARSHMAN 3360 Tremont Road, Suite 230 Columbus, Ohio (614) / (614) Fax mhunter@hcands.com Counsel for All Plaintiffs-Appellees Penda Hair Donita Judge Uzoma Nkwonta ADVANCEMENT PROJECT 1220 L Street, N.W., Suite 850 Washington, D.C (202) / Fax phair@advancementproject.org Counsel for Plaintiff-Appellee Ohio Organizing Collaborative 5

8 Case: Document: Filed: 09/21/2012 Page: 8 Nos , , IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1, et al., Plaintiffs-Appellees v. JON HUSTED, et al., Defendants-Appellants On Appeal from the United States District Court for the Southern District of Ohio Case No. 2:12-cv DECLARATION OF DANIELLE LEONARD IN SUPPORT OF PLAINTIFFS-APPELLEES SEIU LOCAL 1, ET AL. S MOTION FOR LEAVE TO FILE OVERLENGTH BRIEF IN THREE CONSOLIDATED APPEALS MICHAEL J. HUNTER CATHRINE J. HARSHMAN HUNTER, CARNAHAN, SHOUB, BYARD & HARSHMAN 3360 Tremont Road, Suite 230 Columbus, Ohio (614) / (614) Fax mhunter@hcands.com Counsel for All Plaintiffs-Appellees STEPHEN P. BERZON STACEY LEYTON BARBARA CHISHOLM DANIELLE LEONARD ALTSHULER BERZON LLP 177 Post Street, Suite 300 San Francisco, CA (415) / (415) Fax sberzon@altber.com Counsel for Plaintiffs-Appellees SEIU Local 1, USW, UAW Local 1005, UAW Local 863, UFCW Local 75, UFCW Local 880, UFCW Local 1059, and ICWUC

9 Case: Document: Filed: 09/21/2012 Page: 9 PENDA HAIR DONITA JUDGE UZOMA NKWONTA ADVANCEMENT PROJECT 1220 L Street, N.W., Suite 850 Washington, D.C (202) / Fax phair@advancementproject.org Counsel for Plaintiff-Appellee Ohio Organizing Collaborative

10 Case: Document: Filed: 09/21/2012 Page: 10 DECLARATION OF DANIELLE LEONARD IN SUPPORT OF PLAINTIFFS-APPELLEES SEIU LOCAL 1, ET AL. S MOTION FOR LEAVE TO FILE OVERLENGTH BRIEF IN THREE CONSOLIDATED APPEALS I, Danielle Leonard, declare as follows: 1. I am a partner in the law firm of Altshuler Berzon LLP, and an attorney for Plaintiffs-Appellees SEIU Local 1, et al. in this case. I make this declaration of my own personal knowledge and could and would testify to the facts stated herein if called upon to do so. 2. Three separate appeals have been consolidated for briefing and argument before this court: No , filed by Ohio Secretary of State Jon Husted ( the Secretary); No , filed by the State of Ohio ( Ohio), and No , filed by Proposed-Intervenors Thomas Kelly, et al. The issues raised in these consolidated appeals are of great importance to all parties and to the public. These appeals are taken from a August 27, 2012 District Court order granting a preliminary injunction ordering the Secretary to direct Ohio county boards of elections to count provisional ballots that are invalid under Ohio law because they were cast by registered voters in the wrong precincts as a result of poll-worker error, and to count provisional ballots that have technical defects in their ballot affirmation forms as a result of poll-worker error; and the District Court s order denying a motion for permissive intervention in the case below. 1

11 Case: Document: Filed: 09/21/2012 Page: Plaintiffs single Answering Brief in these consolidated appeals must respond to three separate merits briefs on the important constitutional issues raised here that were filed by each of the Secretary, Ohio, and the Proposed Intervenors. Ohio s brief addresses the District Court s preliminary injunction with respect to wrong precinct provisional ballots. The Secretary s brief addresses the preliminary injunction with respect to the counting of provisional ballots with defects in their ballot affirmations. The brief filed by Appellants-Proposed Intervenors challenges the entire injunction with respect to both wrong precinct and ballot affirmation issues, as well as the District Court s denial of the motion for permissive intervention. Combined, these three opening briefs total 35,078 words. 4. The factual record submitted in the District Court with respect to the preliminary injunction is extensive. The District Court had before it many thousands of pages of evidence reflecting the reasons that provisional ballots are miscast in recent elections throughout Ohio. This evidence contains minutes of boards of elections meetings, election day incident reports, and other records from the Secretary and boards regarding the casting and counting of provisional ballots throughout Ohio. The District Court s preliminary injunction was based on factual findings that the extensive record evidence demonstrated that nearly all wrongprecinct provisional ballots are caused by poll-worker error. RE 67 at

12 Case: Document: Filed: 09/21/2012 Page: 12 Plaintiffs need to discuss this extensive evidence in responding to Appellants arguments that the District Court erred in granting this injunction. 5. Plaintiffs Answering Brief responds to all three Opening Briefs, and in doing so must address the District Court s weighing of the preliminary injunction factors, including the court s conclusion that Plaintiffs were likely to prevail on four separate constitutional claims: (i) that the invalidation of wrongprecinct provisional ballots due to poll-worker error severely burdens the right to vote without furthering any legitimate state interest, in violation of the Equal Protection clause of the Fourteenth Amendment of the U.S. Constitution; (ii) that Ohio s provisional ballot laws are fundamentally unfair in violation of the Constitution s guarantee of substantive due process; (iii) that Ohio s decision to apply different ballot-counting standards to two groups of provisional voters depending on the identification used to vote violates the Equal Protection clause; and (iv) that the invalidation of provisional ballots with incomplete or incorrectly completed ballot affirmation forms is an unjustifiable burden on the fundamental right to vote. In addition, Plaintiffs Answering Brief must also address Appellants-Proposed Intervenors argument that the District Court abused its discretion in denying the motion for permissive intervention. 6. Plaintiffs have been diligent in attempting to comply with the word limitation, including avoiding duplication in responding to the three Opening 3

13 Case: Document: Filed: 09/21/2012 Page: 13 Briefs, but believe that there is a substantial need for additional space to adequately address the extensive factual record and complex legal issues presented by this important expedited appeal. I declare under penalty of perjury that the foregoing is true and correct. Executed this 21st day of September, 2012 at San Francisco, California. s/ Danielle Leonard Danielle Leonard 4

14 Case: Document: Filed: 09/21/2012 Page: 14 CERTIFICATE OF SERVICE I hereby certify that on September 21, 2012, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the counsel of record in this matter. s/ Danielle Leonard Danielle Leonard ALTSHULER BERZON LLP 177 Post Street, Suite 300 San Francisco, CA (415) / (415) Fax sleyton@altber.com Counsel for Plaintiffs-Appellees SEIU Local 1, USW, UAW Local 1005, UAW Local 863, UFCW Local 75, UFCW Local 880, UFCW Local 1059, and ICWUC 5