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Federal judge orders Republican House leaders to stop efforts to interfere with voting-rights consent decree, in presidential-election year

We won another important victory for voting rights, which are under increasing assault.

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Contact: Caroline H. Gentry (Porter Wright Morris & Arthur)

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Subodh Chandra (The Chandra Law Firm, LLC)

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Stacey Leyton (Altschuler Berzon)

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Stephen P. Berzon (Altschuler Berzon)

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Danielle E. Leonard (Altschuler Berzon)

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Michael J. Hunter (Hunter, Carnahan, Shoub, Byard, & Harshman)

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Cathrine J. Harshman (Hunter, Carnahan, Shoub, Byard, & Harshman)

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Federal judge orders Republican House leaders to stop efforts to interfere with voting-rights consent decree, in presidential-election year

Niehaus and Blessing ordered to dismiss "forthwith" an Ohio Supreme Court case that sought to re-impose voting-rights violations that federal Consent Decree corrects

COLUMBUS, OHIO -U.S. District Judge Algenon Marbley today ordered Ohio House leaders to cease their efforts to interfere with a federal Consent Decree that protects Ohioans' voting rights. The order enjoins Republican legislative leaders Thomas E. Niehaus and Louis W. Blessing, Jr. from pursuing a case that the two filed on April 16 before the Ohio Supreme Court-and orders the legislators to dismiss the case "forthwith." The case seeks to undermine a voting-rights Consent Decree the plaintiffs obtained in April 2010 from Judge Marbley. The Decree was issued in the case now captioned as Northeast Ohio Coalition for the Homeless, et al. v. Husted, et al. U.S. District Court for the Southern District of Ohio Case No. 2:06-cv-896. The injunction was sought by plaintiffs, the Northeast Ohio Coalition for the Homeless and the Service Employees International Union (SEIU) Local 1199, joined by intervenor the Ohio Democratic Party.

Niehaus is the Ohio Senate President and Blessing is the Ohio House Speaker Pro Tempore.

In issuing his order, Judge Marbley held that there could be "no reasonable dispute" that as leaders of Ohio's General Assembly suing in their "official" capacities in the name of the State of Ohio, Niehaus and Blessing were acting as agents of the State of Ohio, despite the State's prior agreement to enter into the Decree. The Judge in the hearing announcing his decision said that federal courts would be protective of "the right of the franchise" and invoked the federal All Writs Act that enables federal courts to protect their jurisdiction and judgments against interference.

The Decree requires the Secretary of State to direct Ohio's 88 county election boards to count certain provisional ballots where poll workers make mistakes. For example, ballots must be counted where poll workers (1) wrongly allowed the voter to cast a vote in the wrong precinct (but right polling place), (2) wrongly allowed the voter not to complete or sign the provisional-ballot application, or (3) incorrectly failed to complete or sign the provisional-ballot application for the voter. These have been common government-worker errors in the election.

Plaintiffs' counsel Subodh Chandra, a Cleveland attorney, said, "Judge Marbley's decision ensures that legitimate voters do not lose their right to vote when government workers make mistakes. One would hope that these legislators stop their efforts-on the eve of a presidential election-to undermine the right to vote."

Critically, the Decree protects those who lack the state-mandated forms of ID that require a person to have financial means (such as a utility bill, bank statement, or current driver's license reflecting a current address), by ensuring that voters who provide social-security numbers to prove their identities will have their provisional ballots counted. The Decree thus reached a compromise regarding plaintiffs' concerns that the voter-ID law was a poll tax and disenfranchised voters who are poor or transient. After all, for example, many poor people do not have utility or bank statements in their names.

Prior to the November 2008 election, the plaintiffs had produced evidence that election boards intended to apply widely varying rules to provisional ballots. Boards across the state, for example, were divided on whether to accept or reject a ballot that did not include the voter's date of birth. The Decree resolved that confusion and lack of uniformity by clearly providing that such ballots must be counted.

In the related Hunter v. Hamilton County Board of Elections case, S.D. Ohio 1:10-cv-00820, filed in 2010 before Judge Susan Dlott, substantial evidence emerged of poll-worker errors, in which poll workers would regularly direct voters to the wrong precinct. Judge Dlott in that case ordered that such ballots be re-made to conform to the correct precinct and be counted, relying in part on the Consent Decree that the legislators sought to undermine. Judge Dlott further found that governmental efforts to throw out such votes violate the Due Process Clause of the United States Constitution.

Caroline Gentry of Dayton and Daniel B. Miller from Porter Wright, and Subodh Chandra and Ashlie Case Sletvold of Cleveland, represent both the Homeless Coalition and SEIU Local 1199. SEIU is also co-represented by San Francisco attorneys Stacey Leyton, Stephen P. Berzon, Danielle Leonard, Diana Reddy, and Columbus attorneys Michael J. Hunter and Cathrine J. Harshman. Intervenor, the Ohio Democratic Party, is represented by Donald J. McTigue of Columbus.

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