Northeast Ohio Coalition for the Homeless, et al. v. Husted, et al. (amicus)

Northeast Ohio Coalition for the Homeless (NEOCH) v. Husted is a voting rights case initiated by non-ACLU lawyers in 2006 that challenges (among other things) Ohio’s requirement of perfect accuracy in the "five fields" of information that a voter must provide for their provisional ballot to count. This requirement causes significant numbers of provisional ballots to be rejected due to voters' slight technical errors in providing information such as their birthday or address. Under the perfection requirement, if even one minor clerical error is made (like reversing the month and date of the voter's birthday) the ballot is thrown out. The ballot is disregarded even though the board of elections can validate the voter's identity and the legitimacy of the ballot itself is not in doubt.

The legal theories evolved in the ensuing decade as the Ohio legislature and Secretaries of State enacted wave after wave of restrictive voting laws and procedures. On June 7, 2016, the district court struck down a number of Ohio Revised Code provisions that placed excessive restrictions on the processing and validation of provisional ballots. Ohio appealed and on Sept. 13, 2016, the Sixth Circuit reversed most of the district court’s opinion, thus reinstating Ohio’s harsh treatment of provisional ballots.

The Sixth Circuit’s

NEOCH decision reinstating the restrictions on provisional ballots could diminish the practical impact of ACLU of Ohio’s recent Sixth Circuit victory in

APRI v. Husted that struck down Ohio’s practice of purging voters for failure to vote. The remedy we achieved in

APRI resulted in hundreds of thousands of unlawfully purged voters being empowered to cast provisional ballots in the November 8, 2016 election. A favorable ruling in NEOCH’s appeal to SCOTUS would amplify the relief we won in

APRI by ensuring that the newly-valid provisional ballots were not discarded because of trivial errors.

NEOCH appealed the Sixth Circuit decision to the Supreme Court. But because SCOTUS would not decide whether to hear the merits until after the November 8 election, NEOCH also filed an emergency petition in the Supreme Court on October 25, 2016, asking for a stay of the Sixth Circuit’s ruling so that the perfection requirement would be suspended during the November 8, 2016 election.

On October 28 we filed an amicus brief (coauthored by Demos, our co-counsel in

APRI v. Husted ) in the Supreme Court in support of NEOCH’s request to stay the Sixth Circuit decision so that provisional ballots cast in the Nov. 8th election would be counted according to the District Court’s decision. We argued that because the wrongfully purged voters whose right to vote was reinstated by

APRI had to vote provisionally, they should not risk further disenfranchisement by having their provisional ballots tossed out for trivial errors.

SCOTUS denied NEOCH’s petition to stay the Sixth Circuit’s decision on October 31, 2016. Thus, the Secretary of State’s perfection requirement was in place for the November 8, 2016 election, and any provisional ballots cast that were not perfectly accurate will likely be discarded.

After being granted an extension of time, NEOCH filed its petition for writ of certiorari with the Supreme Court on March 3, 2017. On April 5, 2017, the Brennan Center for Justice filed an amicus in support of NEOCH. After also being granted an extension of time, the Secretary of State filed his response on May 5, and NEOCH filed its reply on May 22. On June 19, 2017, the Supreme Court denied NEOCH’s petition for writ of certiorari, leaving in place the Sixth Circuit’s decision to uphold the perfection requirement.