Sixth Circuit Pulls Class Status for Jailed Ohio Voters

CINCINNATI (CN) – A Sixth Circuit panel decertified a class of Ohio voters incarcerated shortly before Election Day, ruling Tuesday that the state can handle their absentee ballots differently than those received from hospital-bound voters.

The ruling penned by U.S. Circuit Judge John Nalbandian, an appointee of President Donald Trump, overturned one that found Ohio had violated the equal-protection rights of recently jailed voters. Tuesday’s opinion was issued less than a month after the case was argued before the three-judge panel.

Lead plaintiffs Tommy Mays II and Quinton Nelson Sr. were granted emergency relief by a federal judge in the form of absentee ballots in 2018, following their arrests and subsequent detentions shortly before Election Day.

U.S. District Judge Michael Watson granted the voters class certification last November and said the state had failed to provide a justification for establishing a separate deadline for jailed voters to submit absentee ballots.

While the Cincinnati-based appeals court conceded the burden placed on the class of voters is “intermediate,” it found that Ohio’s expansive early voting system allowed the jailed voters plenty of opportunities to cast their ballots.

“True, plaintiffs planned to vote in-person on Election Day and did not foresee their arrest,” Nalbandian wrote for the unanimous panel. “But any Ohio elector can be called away unexpectedly.”

The judge continued: “There are easily several reasons why an elector may be unable to vote in person on Election Day – and the [state’s] briefs list many – but plaintiffs could have easily avoided all that uncertainty by taking advantage of the opportunities Ohio provides to vote early. In this regard, the plaintiffs are no more burdened than any other elector.”

Nalbandian agreed with the state that an earlier deadline for absentee ballots received from detainees helps to expedite the election process and allows local boards of elections adequate time to complete required tasks in the days leading up to Election Day.

“The record shows,” Nalbandian said, “that the election board in Ohio’s third-largest county would need more staff to process late absentee requests from jail-confined electors. And some counties’ election boards only operate with two staff members. Boards in small counties such as these could accomplish none of their other tasks while processing and delivering late-requested absentee ballots to jail-confined electors.”

Another argument the Sixth Circuit rejected was that jailed voters are similar to hospital-confined electors, pointing to their place of confinement.

“Board staff that deliver absentee ballots to jails must engage in advanced planning to ensure that they will be able to locate the elector in the jail, pass through the jail’s security, and verify that the elector will be present at the jail when they arrive,” the 22-page opinion states.

Although Judge Watson in the lower court elected not to resolve the First Amendment claim brought by Mays and Nelson when he granted their motion for class certification, the panel ruled in the state’s favor and determined it was entitled to judgment as a matter of law.

Nalbandian noted there is no constitutional right to an absentee ballot, and again found the state’s rationale outweighed any burden imposed on the jailed voters.

The class certification granted by Watson was struck down by the Sixth Circuit judges, who ruled the plaintiffs failed to meet commonality requirements.

“Because Ohio law treats some class members the same as hospital-confined electors, while also treating some class members differently than their hospital-confined counterparts, resolution of the district court’s ‘primary common issue’ cannot lead to classwide resolution in one stroke – the claims of the named plaintiffs do not necessarily resolve the claims of the entire class,” Nalbandian wrote.

The panel also included Senior U.S. Circuit Judge Gilbert Merritt Jr., an appointee of Jimmy Carter, and U.S. Circuit Judge Amul Thapar, another Trump appointee.

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