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Last-Minute Absentee Voting by Last-Minute Prisoners

Robert Timothy Reagan, Margaret S. Williams, Marie Leary, Catherine R. Borden, Jessica L. Snowden, Patricia D. Breen, Jason A. Cantone
May 15, 2020
Available Online Only

Fair Elections Ohio v. Husted (Susan J. Dlott and S. Arthur Spiegel, 1:12-cv-797) and Mays v. Husted (Michael H. Watson, 2:18-cv-1376) (S.D. Ohio)
Prisoner-rights organizations filed a federal complaint seeking provisions ensuring the ability to vote by voters detained during the days immediately preceding the 2012 general election. The district judge denied the plaintiffs immediate relief because they had not presented compelling evidence of disfranchisement. The state’s accommodations for persons with medical emergencies on election day did not create an equal protection violation because of the different burdens placed on election officials. After the case was transferred to another judge in 2014, and after additional discovery, the second judge granted the plaintiffs summary judgment on a showing that the burden on disfranchised voters outweighed the burden on accommodating late-jailed voters. The court of appeals determined, over a dissent, however, that the plaintiff organizations did not have standing. A lawsuit filed in 2018 by two persons arrested over the weekend before election day and detained through election day was successful for them. The judge later granted summary judgment to a certified plaintiff class. The court of appeals, however, determined that the franchise burden on arrested voters is modest and justified by election officials’ burdens in providing new prisoners with ballots.
Topics: Prisoner voters; equal protection; absentee ballots; class action.

One of many Case Studies in Emergency Election Litigation.