CINCINNATI (CN) – The State of Ohio argued Thursday before a Sixth Circuit panel that incarcerated voters are not entitled to the same absentee voting deadline as those confined to hospitals.
The state seeks to overturn a ruling by U.S. District Judge Michael Watson, who determined in November 2019 that individuals jailed immediately prior to and incarcerated through Election Day are entitled to submit absentee ballots up to 3 p.m. on that day.
Watson did not make sweeping changes to the state’s jail-voting policies but held that the state offered no rational justification for requiring eligible voters confined to jails to submit their absentee ballots by 12:00 p.m. on the Saturday before an election, while giving hospital-bound voters a more generous deadline.
He also granted class certification to “all individuals arrested and held in detention in Ohio on or after close of business for the county election board on the Friday prior to the election” who were already eligible to vote and will remain incarcerated through the end of Election Day.
The lawsuit was filed by lead plaintiffs Tommy Mays II and Quinton Nelson Sr. on Election Day 2018, and both were granted emergency relief by the court after no one at their jails could tell them how to exercise their right to vote.
Both men were provided with absentee ballots that allowed them to vote.
Watson said the burden on jailed individuals who could not make bail before Election Day fell somewhere between “slight and severe,” but nevertheless ruled in favor of the class.
“Due to the inherently short timeframe between arrest and the deadline for those in the Class, meeting the deadline will likely require extraordinary efforts – efforts class members must make during their first hours of incarceration and at the expense of focusing on their legal cases, acclimating to incarcerated life, etc. – in order to exercise their right to vote,” Watson said in his opinion.
Deputy Solicitor General Zachery Keller argued on behalf of Ohio Secretary of State Frank LaRose on Thursday and told the panel that Election Day deadlines inevitably prevent a certain number of people from exercising their right to vote.
“There have to be lines [drawn] somewhere,” Keller said, adding that “election laws invariably exclude some people from voting.”
The attorney pointed out that inclement weather, traffic accidents and other scenarios can also prevent registered voters from making it to the polls.
“Surely,” he said, “the state doesn’t have to stand trial for all those scenarios?”
U.S. Circuit Judge Amul Thapar, an appointee of President Donald Trump, asked Keller why an Equal Protection claim could not be brought against the state, and the attorney responded that detainees are not similarly situated to other voters, including those who are hospital-bound.
Keller pointed out that election board employees who travel to jails to provide absentee ballots must pass background checks and other security clearances before they can be admitted, which distinguishes them from employees sent to hospitals, who require no additional clearances.
Attorney Mark Gaber, arguing on behalf of the class of detainees, said his clients cannot be punished because they happened to be arrested near Election Day.
Judge Thapar spoke extensively during Gaber’s arguments and said the earlier deadline is “not a complete suppression of their right to vote.”
Thapar asked if the government was entitled to set any deadlines on absentee ballots, or if it could simply eliminate early voting entirely and require all citizens to vote on Election Day.
Gaber said such a regression would create a new set of problems and told the panel that rights are typically added in these types of cases, not revoked.
He also disputed his fellow attorney’s argument regarding security concerns at jails and said the record contains no evidence that jails pose any burden above and beyond that faced by the boards of election when they distribute ballots at hospitals.
Gaber could not immediately be reached for comment following the arguments and Keller declined to comment.
The panel also included Senior U.S. Circuit Judge Gilbert Merritt Jr., an appointee of Jimmy Carter, and U.S. Circuit Judge John Nalbandian, a Trump appointee.
The panel gave no indication as to when it would issue its decision.
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