IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
OBAMA FOR AMERICA, et al.,
Plaintiffs,
v.
JON HUSTED, et al.,
Defendants.
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:
:
:
:
:
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Case No. 2:12-CV-00636
Judge Economus
Magistrate Judge King
AMICUS BRIEF OF THE COUNTY OF CUYAHOGA, OHIO IN SUPPORT OF
PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION CONCERNING THE
BUDGETARY IMPLICATIONS OF GRANTING PLAINTIFFS’ MOTION
MAJEED G. MAKHLOUF
Director of Law
County of Cuyahoga, Ohio
Majeed G. Makhlouf (0073853)
Cuyahoga County Department of Law
1219 Ontario Street, 4th
Floor
Cleveland, OH 44113
(216) 698-6549 (Telephone)
(216) 698-2744 (Facsimile)
Counsel for Amicus
County of Cuyahoga, Ohio
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TABLE OF CONTENTS
Table of Contents …………………………………………………………………………………i
Table of Authorities ……………………………………………………………………………...ii
Introduction ………………………………………………………………………………………1
Identity and Interest of Amicus …………………………………………………………………..1
Argument …………………………………………………………………………………………2
Conclusion ………………………………………………………………………………………..4
Certificate of Service ……………………………………………………………………….…….6
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TABLE OF AUTHORITIES
Cases
Burdick v. Takushi, 504 U.S. 428, 433 (1992) ……………………………………………………4
League of Women Voters of Ohio v. Brunner, 548 F.3d 463 (6th Cir. 2008) …………………….2
Statutes
R.C. 3501.17 ……………………………………………………………………………………...3
Local Laws
Cuyahoga County Resolution R2011-0291 ………………………………………………………3
Other Sources
2010 U.S. Census …………………………………………………………………………………1
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INTRODUCTION
There is no dispute in this case that Ohio should make appropriate accommodations for
our military and overseas voters to facilitate their ability to vote. The County of Cuyahoga
wholeheartedly supports such initiatives and will do everything in its capacity to promote and
strengthen them.
The only question before this Court is whether the boards of elections, which will be
open for business during the three days before the election, should turn away Ohio citizens,
including veterans, firefighters, police officers, nurses, parents of young children, owners of
small businesses who may have to travel on a moment’s notice for business, and other citizens
from exercising their constitutional right to vote during this time period.
As Ohio’s largest county, Cuyahoga County respectfully submits that there is no
reasonable budgetary rationale for denying citizens’ ability to vote during the three days before
the election. If anything, denying Ohio voters the right to vote during the three days before the
election may end up costing counties additional funds to invest in fixing the problems caused by
this deprivation, including potentially having to purchase additional voting machines and spend
continuing resources on having to maintain the machines.
IDENTITY AND INTEREST OF AMICUS
Cuyahoga County is Ohio’s largest county with a population of 1,280,122 according to
the 2010 U.S. Census. See U.S. Census Bureau State and County Quickfacts at
http://quickfacts.census.gov/qfd/states/39/39035.html. Of Ohio’s 88 counties, Cuyahoga County
is home to approximately eleven percent of Ohio’s population of 11,536,502. Id.
The County has a substantial interest in early voting and the outcome of this litigation.
The County’s citizens experienced substantial problems and long lines trying to exercise their
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constitutional right to vote during the 2004 general presidential election. Indeed, the long lines
and the voting problems experienced by Cuyahoga County’s citizens were a primary drive
behind Ohio’s introduction of early voting. See League of Women Voters of Ohio v. Brunner,
548 F.3d 463 (6th Cir. 2008) (recounting some of the problems experienced by Cuyahoga
County citizens trying to exercise their constitutional right to vote.) Cuyahoga County,
therefore, has a substantial interest in the outcome of this litigation to protect its citizens’ right to
vote and to avoid similar problems as experienced in 2004.
Cuyahoga County also has a monetary interest in the outcome of this litigation. If the
Secretary of State were to succeed in this litigation and the County were to again experience
problems during the 2012 general presidential election, the need will arise to invest additional
monetary resources, including possibly purchasing additional voting equipment, to facilitate
future elections. Early voting resolves these problems without the need to invest additional
resources in purchasing additional voting machines and having to invest continuing resources to
maintain the additional machines.
Cuyahoga County, therefore, took the initiative to submit this friend-of-the-Court brief
for the Court’s consideration. No party or their counsel contributed or will contribute any funds
toward the brief’s preparation. In fact, in light of the substantial impact of this matter on the
County and its citizens, the County’s Director of Law personally drafted the brief.
ARGUMENT
In reaching its decision, the Court should not be concerned about the availability of funds
to conduct early voting, including the three days before the election. Ohio counties have become
accustomed to early voting since its inception in 2006, including early voting during the three
days before the election, and have regularly budgeted for this activity.
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Under Ohio law, counties appropriate the funds for their respective boards of elections,
and the boards’ expenses are paid from the counties’ treasuries. R.C. 3501.17(A) provides in
part:
The expenses of the board of elections shall be paid from the
county treasury, in pursuance of appropriations by the board of
county commissioners, in the same manner as other county
expenses are paid. If the board of county commissioners fails to
appropriate an amount sufficient to provide for the necessary and
proper expenses of the board of elections pertaining to the conduct
of elections, the board of elections may apply to the court of
common pleas within the county, which shall fix the amount
necessary to be appropriated and the amount shall be appropriated.
Payments shall be made upon vouchers of the board of elections
certified to by its chairperson or acting chairperson and the director
or deputy director, upon warrants of the county auditor. (Emphasis
added).
Counties have already adopted their 2012 budgets. Cuyahoga County, for instance,
adopted its 2012-2013 Budget on December 13, 2011. (Ex. A, Cuyahoga County Resolution
R2011-0291.) As part of this budget, Cuyahoga County appropriated $7,297,343 to the
Cuyahoga County Board of Elections for the 2012 general election. (Id.) In fact, since
Cuyahoga County is on a two-year budget, the County has also appropriated $4,253,745 to the
Board of Elections for the 2013 off-year general election. (Id.) Both appropriations include
funding for early voting, including early voting in the three days before the election.
The Court should be able to take judicial notice of the Cuyahoga County Biennial
Budget. It is a local law, Resolution 2011-0291, that was adopted through an official open-
meeting process. It is officially published and readily available on the Cuyahoga County
Council’s web site. The County’s 2011 Resolutions are available at:
http://council.cuyahogacounty.us/en-US/Resolutions.aspx. Resolution 2011-0291 is readily
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available at: http://council.cuyahogacounty.us/pdf_council/en-
US/Legislation/Resolutions/2011/R-0200-0299/R2011-0291.pdf.)
The argument, therefore, that Cuyahoga County’s citizens should be deprived of the
opportunity to exercise their constitutional right to vote for budgetary reasons simply has no
merit. In fact, if the Ohio Secretary of State were to succeed in this litigation, Ohio counties may
face the risk of voting problems on Election Day. Such problems will trigger the need for
investing additional financial resources, including potentially having to purchase additional
voting machines and to spend money maintaining these additional machines, to avoid the
problems in the future. Granting Plaintiffs’ Motion for Preliminary Injunction will save Ohio
counties from this risk.
“It is beyond cavil that voting is of the most fundamental significance under our
constitutional structure.” Burdick v. Takushi, 504 U.S. 428, 433 (1992) (internal citations and
quotations marked omitted). Since 2006, Ohio found a remedy in early voting that made it
possible to minimize interference with the exercise of this constitutional right through long lines,
broken machines, and insufficient number of ballots on Election Day. The Court should not
permit interference with this fundamental right, let alone interference based on manufactured
budgetary concerns, which are not based on real facts.
CONCLUSION
For all of the foregoing reasons, the Court should grant Plaintiffs’ Motion for Preliminary
Injunction. There is no downside to permitting Ohio’s veterans, firefighters, police officers,
nurses, parents of young children, owners of small businesses who may have to travel on a
moment’s notice for business, and other citizens to exercise their fundamental constitutional
right to vote during the three days before the election. The only downside is if the State
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experiences a repetition of what happened in 2004 because we do not take advantage of this time
window to allow voters to cast their ballots—let alone doing so based on concocted budgetary
concerns.
Respectfully submitted,
/s/ Majeed G. Makhlouf
Majeed G. Makhlouf (0073853)
Director of Law
Cuyahoga County Department of Law
1219 Ontario Street, 4th
Floor
Cleveland, OH 44113
(216) 698-6549 (Telephone)
(216) 698-2744 (Facsimile)
Counsel for Amicus
County of Cuyahoga, Ohio
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CERTIFICATE OF SERVICE
I certify that on August 15, 2012, a copy of the foregoing was filed electronically in
accordance with the Court’s Electronic Filing Guidelines. Notice of this filing will be sent to the
parties by operation of the Court’s Electronic Filing System. Parties may access this filing
through the system.
/s/ Majeed G. Makhlouf
Majeed G. Makhlouf (0073853)
Cuyahoga County Director of Law
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