AMICUS BRIEF OF THE COUNTY OF CUYAHOGA, OHIO IN … › electionlaw › litigation › ... · 2012-08-15 · Case No. 2:12 -CV-00636 Judge Economus Magistrate Judge King AMICUS BRIEF

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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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)

[email protected]

Counsel for Amicus


Case: 2:12-cv-00636-PCE-NMK Doc #: 38 Filed: 08/15/12 Page: 1 of 9 PAGEID #: 1432

mailto:[email protected]

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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


ii

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


http://quickfacts.census.gov/qfd/states/39/39035.html

2

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


http://council.cuyahogacounty.us/en-US/Resolutions.aspx

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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


council.cuyahogacounty.us/pdf_council/en-US/Legislation/Resolutions/2011/R-0200-0299/R2011-0291.pdf

council.cuyahogacounty.us/pdf_council/en-US/Legislation/Resolutions/2011/R-0200-0299/R2011-0291.pdf

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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


Director of Law

Cuyahoga County Department of Law

1219 Ontario Street, 4th

Floor

Cleveland, OH 44113

(216) 698-6549 (Telephone)

(216) 698-2744 (Facsimile)

[email protected]

Counsel for Amicus



mailto:[email protected]

6

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


Cuyahoga County Director of Law


Case: 2:12-cv-00636-PCE-NMK Doc #: 38-1 Filed: 08/15/12 Page: 1 of 36 PAGEID #: 1441




































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AMICUS BRIEF OF THE COUNTY OF CUYAHOGA, OHIO IN … › electionlaw › litigation › ... · 2012-08-15 · Case No. 2:12 -CV-00636 Judge Economus Magistrate Judge King AMICUS BRIEF