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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
League of Women Voters
of Ohio, et al.,
Plaintiffs,

Case No. 2:20-cv-3843

v.

Judge Michael H. Watson

Frank LaRose,

Magistrate Judge Jolson

Defendant.
OPINION AND ORDER
League of Women Voters of Ohio (“LOWV”), A. Philip Randolph Institute of
Ohio (“APRI”), George W. Mangeni (“Mangeni”), and Carolyn E. Campbell
(“Campbell”) (collectively “Plaintiffs”) sue Ohio Secretary of State Frank LaRose
(“Defendant” or “Secretary LaRose”) and seek a preliminary injunction that:
(1) enjoins [Secretary LaRose] from enforcing provisions of Ohio law
that require election officials to conduct signature matching on
absentee ballots without providing adequate time to cure a
purportedly mismatched signature before the date by which Ohio
boards of elections must complete the canvass of returns; and
(2) enjoins Defendant LaRose from permitting county boards of
elections from conducting signature matching on absentee ballot
applications, or, in the alternative, to direct Defendant LaRose to
confirm that Directive 2020-11, issued by Defendant LaRose on
July 6, 2020, requires boards of elections to promptly contact
voters by telephone and email in sufficient time to correct absentee
ballot applications rejected on the basis of signature mismatch.
Mot. 1–2, ECF No. 24. Donald J. Trump for President, Inc., the Ohio Republican
Party, the Republican National Committee, and the National Republican

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Congressional Committee (collectively “Intervenors”) moved for, and were
granted, leave to intervene as Defendants. Order, ECF No. 35. For the following
reasons, Plaintiffs’ motion for a preliminary injunction is DENIED.
I.

FACTS 1

Ohio offers several different ways to cast a ballot, including absentee
voting, early in-person voting, and in-person voting on election day. Ohio
Democratic Party v. Husted, 834 F.3d 620, 625 (6th Cir. 2016). Absentee voting
is available to any Ohio voter, regardless of whether that individual is willing and
able to vote in-person on election day. Id. at 624; R.C. § 3509.02.
A. Absentee Ballot Application Process
In order to receive an absentee ballot, an Ohio voter must submit a written
application to the director of elections of her county. R.C. § 3509.03(A). Voters
were able to submit applications for the November 2020 election as early as
January 1, 2020, and they may submit applications as late as a few days before
the election. R.C. § 3509.03(D). 2
This application does not have to be on a specified form—it must simply
contain the elector’s name, signature, address at which the voter is registered,
1

Both Plaintiffs and Defendant have attached evidence to their preliminary injunction
briefs. The background facts, primarily describing Ohio’s electoral process, are largely
agreed upon. If the Court relies upon a disputed fact, it will make note of that in this
Opinion and Order.
2
Applications may be submitted “not later than twelve noon on the third day before the
day of the election at which the ballots are to be voted, or not later than six p.m. on the
last Friday before the day of the election at which the ballots are to be voted if the
application is delivered in person to the office of the board.” Id.
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date of birth, some form of identification 3, a statement of the election for which
the voter wishes to receive a ballot, a statement that the voter is a qualified
elector, and the voter’s address (if the ballot is to be mailed). R.C. § 3509.03(B).
There are several ways for voters to obtain an application, a few of which the
Court will highlight. An elector can contact her county board of elections or call
Defendant’s office to request an application. Grandjean Decl. ¶¶ 11–12, ECF
No. 41-2. For the November 3, 2020 presidential election, Defendant mailed
personalized absentee ballot applications to every registered voter in Ohio. Id.
¶ 15. Defendant’s website also gives voters several different ways to request an
absentee ballot: 1) complete an absentee ballot request online, download it, then
mail it in; 2) have an application mailed to the voter’s residence; or 3) the website
explains to voters how they can make their own application and mail it in.
https://www.ohiosos.gov/elections/voters/how-to-request-your-absentee-ballot/
(last visited September 20, 2020). Voters can also obtain an application from the
websites of the LOWV and the Ohio Democratic and Republican parties.4
An application can be submitted by mailing it to the board of elections for
the county in which the voter resides or dropping it off at that board of elections’

3

This can be the elector’s driver’s license number, last four digits of her social security
number, or a copy of the elector’s current and valid photo I.D., military I.D., or a copy of
a current utility bill, bank statement, government check, paycheck, or other government
document (other than voter registration) that shows the elector’s name and address.
4
https://www.lwvohio.org/register-to-vote (last visited September 20, 2020);
https://ohiodems.org/vote/ (last visited September 20, 2020);
https://slate.ohiogop.org/vote-by-mail/ (last visited September 20, 2020).
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office either in person or via a secure drop box. R.C. § 3509.03(D); Sec’y of
State Directive 2020-16 at 1.
If an application is submitted by a qualified elector that “contains all of the
required information,” an absentee ballot is sent to the voter. R.C. § 3509.04. If
an application is received “that does not contain all of the required information,”
the director of the county board of elections “promptly shall notify the applicant of
the additional information required to be provided by the applicant to complete
that application.” R.C. § 3509.04(A). Defendant issued a directive requiring
boards of elections to “utilize telephone numbers and email addresses to
complete this process as quickly as possible.” Sec’y of State Directive 2020-11
at 12, available at https://www.ohiosos.gov/elections/elections-officials/rules/ (last
visited September 20, 2020). Voters can now also potentially learn of a problem
with their application by using an online tracking system Defendant has set up.
Grandjean Decl. ¶ 21, ECF No. 41-2; Sec’y of State, Track Your Ballot,
https://www.ohiosos.gov/elections/voters/toolkit/ballot-tracking/ (last visited
September 20, 2020).
B. Submitting an Absentee Ballot
In order to cast a vote, after a voter receives an absentee ballot she must
“cause the ballot to be marked,” place it and seal it within “the identification
envelope received from the director of elections for that purpose,” “cause the
statement of voter on the outside of the identification envelope to be completed
and signed, under penalty of election falsification,” and then mail the envelope to
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the director from whom it was received, personally deliver the envelope, or direct
a family member to deliver it. R.C. § 3509.05(A). 5 “[B]allots shall be delivered to
the director not later than the close of the polls on the day of an election.” Id. If a
ballot is mailed, it must be postmarked prior to election day and “delivered to the
director prior to the eleventh day after the election.” R.C. § 3509.05(B)(1).
C. Signature Matching Requirements
For each identification envelope that is delivered to a board of elections,
“election officials shall compare the signature of the elector on the outside of the
identification envelope with the signature of that elector on the elector’s
registration form and verify that the absent voter’s ballot is eligible to be counted.”
R.C. § 3509.06(D)(1). Any precinct official may challenge whether a ballot
should be counted on “the ground that the signature on the envelope is not the
same as the signature on the registration form.” R.C. § 3509.06(D)(2)(a). If
elections officials find that the signature on the identification envelope does not
conform to the information contained in the statewide voter registration database
for that voter, “the election officials shall mail a written notice to the voter,
informing the voter of the nature of the defect.” R.C. § 3509.06(D)(3)(b). This
notice contains a Form 11-S that is completed by the voter.

5

Delivery can be completed by “the spouse of the elector, the father, mother, father-inlaw, mother-in-law, grandfather, grandmother, brother, or sister of the whole or half
blood, or the son, daughter, adopting parent, adopted child, stepparent, stepchild, uncle,
aunt, nephew, or niece of the elector.” Id.
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The time within which the notice must be sent depends on when the
defective identification envelope was received. Ohio Election Official Manual at
5-31.6 Notice must be sent within two business days for ballots received by the
third Saturday prior to an election, within one calendar day for ballots received
between the third Monday and last Friday before an election, and on the same
day for ballots received between the Saturday prior to an election and the sixth
day following an election. Id. In addition to the statutory requirement that notice
of a defect be mailed, Defendant has also directed boards of elections to notify
voters of a defect via email and telephone as “quickly as possible.” Sec’y of
State Directive 2020-11 at 13. 7
If the voter corrects the signature no later than the seventh day after
election day and the ballot is not successfully challenged for a different reason,
the voter’s ballot will be counted.8 R.C. § 3509.06(D)(3)(b). If the signature is
not corrected within seven days after the election, the ballot will not be counted.
R.C. § 3509.07. 9

Available at https://www.sos.state.oh.us/elections/elections-officials/rules/ (last visited
September 24, 2020).
7
Available at https://www.sos.state.oh.us/elections/elections-officials/rules/ (last visited
September 24, 2020).
8
Even if a voter applies for an absentee ballot, she is not required to vote by absentee
ballot. She may still decide to appear at her polling location on election day and cast a
provisional ballot. R.C. § 3509.09(B).
9
If the Form 11-S is post-marked by the seventh day after the election and received by
the tenth day after the election, it will be accepted. Grandjean Decl. 6–7, ECF No. 41-2.
6

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The other facts relied on by the parties will be discussed in the Court’s
analysis of Plaintiffs’ claims.
D. COVID-19
The global COVID-19 pandemic has affected nearly every aspect of
American life, including voting. The 2020 Primary Election in Ohio, which took
place during heightened state-imposed restrictions to control the spread of
COVID-19, saw 85.2% 10 of voters cast mail-in absentee ballots compared to only
8.6% 11 in Ohio’s 2016 Primary Election. Plaintiffs extrapolate out from this
increase, without additional supporting evidence, that the number of absentee
voters for the 2020 General Election should “at least double” from 2016’s
General Election. Mot. 5, ECF No. 24. Defendant does not offer a competing
view, but he has admitted in public appearances that the number of absentee
voters will be higher in the 2020 General Election than previous years. Is mail-in
voting safe? Yes, and Ohio’s system is among the best in the country, LaRose
says, WTOL-11, https://www.wtol.com/article/news/special-reports/88-

10

https://www.sos.state.oh.us/elections/election-results-and-data/2020/ (last visited
September 20, 2020) (1,562,716 domestic absentee ballots cast versus 1,834,465 total
ballots cast).
11
https://www.sos.state.oh.us/elections/election-results-and-data/2016-official-electionsresults/ (last visited September 20, 2020) (285,045 domestic absentee ballots cast
versus 3,302,832 total ballots cast).
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counties/is-mail-in-voting-safe/512-904800d1-1758-4ac8-a739-9c3556b44733
(last visited September 20, 2020).
II.

STANDARD OF REVIEW

Plaintiffs seek injunctive relief pursuant to Federal Rule of Civil Procedure
65. In order to be entitled to a preliminary injunction, Plaintiffs “must establish
that [they are] likely to succeed on the merits, that [they are] likely to suffer
irreparable harm in the absence of preliminary relief, that the balance of equities
tips in [their] favor, and that an injunction is in the public interest.” Winter v.
NRDC, Inc., 555 U.S. 7, 20 (2008). “When evaluating these factors for an
alleged constitutional violation, ‘the likelihood of success on the merits often will
be the determinative factor.’” Thompson I, 959 F.3d 804, 807 (6th Cir. 2020) (per
curiam) (quoting Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012)).
But the factors are not prerequisites; rather, they must be balanced in weighing
the equities involved. Capobianco, D.C. v. Summers, 377 F.3d 559, 561 (6th Cir.
2004).
III.

ANALYSIS

Plaintiffs bring three different claims against Defendant: 1) Ohio’s signature
matching procedures violate the freedom of association clause of the First
Amendment and the equal protection clause of the Fourteenth Amendment;
2) Ohio’s inconsistent signature matching practices violate voters’ equal
protection rights; and 3) Ohio’s failure to provide voters adequate notice and
opportunity to cure signature mismatches violates the voters’ procedural due
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process rights under the Fourteenth Amendment. Before the Court can consider
the merits of these claims, however, it must address whether Plaintiffs have
standing to sue.
A. Standing
“Article III imposes three standing requirements for plaintiffs in federal
court: an injury-in-fact, causation, and redressability.” Mays v. LaRose, 951 F.3d
775, 781 (6th Cir. 2020) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61
(1992)). The Court only needs to determine that one party has standing in order
to consider identical claims brought by other parties. NE Ohio Coalition for the
Homeless v. Husted, 837 F.3d 612, 623–24 (6th Cir. 2016) (“NEOCH”).
The LOWV and APRI (“Organizational Plaintiffs”) have argued that they
have standing to sue on behalf of their members or on their own behalf because
of an injury they have suffered from Defendant’s actions. Because “each
element of Article III standing ‘must be supported . . . with the manner and
degree of evidence required at the successive stages of the litigation,”
Organizational Plaintiffs must show a “substantial likelihood of standing.” Food &
Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015) (citations
omitted); Waskul v. Washtenaw Cty. Cmty. Mental Health, 900 F.3d 250, 256 n.4

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(6th Cir. 2018) (“Put simply, ‘[a] party who fails to show a ‘substantial likelihood’
of standing is not entitled to a preliminary injunction.’”)
1. Injury-in-fact
a. Direct Harm to the Organizational Plaintiffs
Organizational Plaintiffs argue they have standing because they have been
forced “to devote key resources to preventing the disenfranchisement of Ohio
voters above and beyond their normal voter education and registration efforts.”
Reply 3, ECF No. 50. While the signature-matching requirements at issue are
not new, Organizational Plaintiffs claim that “the pandemic has significantly
exacerbated the already-present defects of the law.” Id. (citing Miller Dep. at
24:4–18, ECF No. 40-4).
Defendant acknowledges that diversion of resources can be a sufficient
injury 12, but he argues that the Sixth Circuit’s decision in Fair Elections Ohio v.
Husted, 770 F.3d 456, 459 (6th Cir. 2014), controls here and necessitates a
finding that Organizational Plaintiffs lack standing. Def. Opp. 15, ECF No. 41. In
Fair Elections, the “[p]laintiffs alleged that treating late-jailed electors differently
than late-hospitalized electors violate[d] the Equal Protection Clause and Due
Process Clause of the Fourteenth Amendment, § 2 of the Voting Rights Act, and

12

Def. Opp. 13, ECF No. 41; see also Miami Valley Fair Hous. Ctr., Inc. v. Connor Grp.,
725 F.3d 571, 576 (6th Cir. 2013) (citing Havens Realty Corp. v. Coleman, 455 U.S.
363, 379 (1982)) (“The Supreme Court and [the Sixth Circuit] have found that a drain on
an organization’s resources . . . constitutes a concrete and demonstrable injury for
standing purposes.”).
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the Seventeenth Amendment.” Fair Elections, 770 F.3d at 459. The district court
found that one of the organizational plaintiffs in that case had standing “because
it would be ‘required to divert its resources to retraining its volunteers and
informing its members and constituents of the risks attendant with getting
arrested during the weekend prior to the election.’” Id. The Sixth Circuit
disagreed, finding in part that “it is not an injury to instruct election volunteers
about absentee voting procedures when the volunteers are being trained in
voting procedures already.” Id. at 459–60.
In NEOCH, a later election case in which the Sixth Circuit did find
organizational standing, the Court distinguished the facts from those found in Fair
Elections by saying “[w]hereas the Fair Election [sic] plaintiff merely exhausted
‘efforts and expense [in] advis[ing] others how to comport with’ existing law,
NEOCH has immediate plans to mobilize its limited resources to revise its votereducation and get-out-the-vote programs on account of [the change in election
law].” NEOCH, 837 F.3d at 624 (citations omitted). Defendant uses this
language as part of its argument that Organizational Plaintiffs’ challenge to the
signature-matching requirements that have existed for a long time is insufficient
to confer standing. Def. Opp. 17, ECF No. 41.
But Organizational Plaintiffs are more like the plaintiff in NEOCH than in
Fair Elections. Instead of simply “advising voters how to ‘comport’ with the law,”
as occurred in Fair Elections, Organizational Plaintiffs have put forward credible
evidence that they intend to “redirect [their] focus” for this election, which “will
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require more volunteers, time, and expenditures.” NEOCH, 837 F.3d at 624;
Miller Dep. 47:4–48:15, ECF No. 40-4 (testifying that the LOWV “ended up doing
so many extra trainings this spring” based, at least in part, on the increase in
absentee voting and issues that arose in the 2020 primary); id. at 24:4–18
(explaining that absentee voting went from being somewhat uncommon to being
used by approximately eighty percent of voters, so the LOWV realized it needed
to be a priority); Washington Dep. 45:6–46:7, ECF No. 40-1 (describing
numerous ways in which APRI has changed its get-out-the-vote strategy based
on increased absentee voting); id. at 53:4–20 (stating that explaining the
signature-matching requirements to voters will “be another burden on us in
diverting our resources”).
This case falls somewhere in between Fair Elections and NEOCH.
Although there is not a change in law, there is a significant change in
circumstances that requires diverting resources and retraining volunteers.
Organizational Plaintiffs have demonstrated a substantial likelihood of satisfying
the injury-in-fact requirement based on harm they will incur from Defendant’s
actions in enforcing the signature-matching requirements and cure period.
b. Associational Standing
The Organizational Plaintiffs also argue that they have standing to sue on
behalf of their membership. Reply 6, ECF No. 50. Defendant counters that
Organizational Plaintiffs have failed to identify a specific member who will suffer a
concrete harm, and “[i]t’s purely speculative that [the LOWV’s] members will vote
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absentee by mail and that their absentee ballots will be rejected in the three days
between the deadline to cure and the deadline for receiving absentee ballots.
Def. Opp. 18, ECF No. 41.
While Defendant is correct that no one can know in advance who will be
affected by the signature-matching requirements, the LOWV did identify several
members whose ballots or applications were rejected in the past due to signature
mismatches. Miller Dep. 34:4–35:11, ECF No. 40-4. Additionally, in an
analogous case, the Sixth Circuit found associational standing even where the
plaintiffs could not identify specific voters who would be affected by Ohio’s
handling of voters who sought to vote at a polling place that is deemed incorrect
by an election worker. Sandusky Cty. Democratic Party v. Blackwell, 387 F.3d
565, 574 (6th Cir. 2004). The Court found standing because it was “inevitable”
that such mistakes would be made and the issues raised were “not speculative or
remote; they are real and imminent.” Id.; see also Block Communs., Inc. v. FCC,
808 F. App’x 332, 336 (6th Cir. 2020) (“The Sixth Circuit has previously found
standing absent definitive evidence if the injury is impossible to prove or could
not be ‘specifically identified in advance.’”) The same is true here. While
Organizational Plaintiffs may not be able to identify in advance who will be
affected, they have met their burden of demonstrating that some members
inevitably will be affected.

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2. Causation
Defendant also argues, briefly, that Organizational Plaintiffs cannot
establish that any injury they are suffering is fairly traceable to Defendant. Def.
Opp. 16–17, ECF No. 41. In support, Defendant argues that the Sixth Circuit and
other courts “have made clear that pandemic-created injuries do not
automatically translate into unconstitutional state-created injuries. Id. at 17
(citing Thompson I, 959 F.3d 804). That principle is true, as the Court will
discuss further in its analysis of Plaintiffs’ claims. Further, this argument has
some logical appeal because even Plaintiffs describe some of their injury as
resulting from increased absentee voting or safety concerns surrounding COVID19. But in recent election cases involving COVID-19, the Sixth Circuit has not
raised standing concerns—even when the only allegedly unconstitutional effects
are because of COVID-19—let alone found that those plaintiffs’ injuries were not
fairly traceable to the government defendant. See generally Thompson, supra;
Esshaki v. Whitmer, 813 F. App’x 170 (6th Cir. 2020). Absent further guidance
from the Sixth Circuit or argument from Defendant on how those cases are
distinguishable, Defendant’s causation argument is insufficient to defeat
standing.
3. Redressability
Defendant and Intervenors also argue (again, briefly) that Organizational
Plaintiffs’ alleged injuries are not redressable via this lawsuit. Int. Opp. 13, ECF
No. 44 (arguing that “[r]equiring Ohio to adjust its cure procedures will not
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change APRI and LWV’s incentive to inform their voters about Ohio’s signaturematching regime”); Def. Opp. 19, ECF No. 41 (asserting that “the requested
injunction will make the organizations divert more resources for education and
outreach, especially now that the election is fast approaching”). These
arguments, however, lack any legal or factual support. Defendant had the
opportunity to depose corporate representatives of both Organizational Plaintiffs,
and yet Defendant and Intervenor have not cited any testimony supporting their
theory that an injunction would not redress Organizational Plaintiffs’ injuries. And
in any event, Organizational Plaintiffs’ associational claims would certainly be
redressed by this lawsuit even if their claims on their own behalf would not.
For all these reasons, Organizational Plaintiffs have demonstrated a
substantial likelihood of standing.
B. Likelihood of Success on the Merits
The Court considers first whether Plaintiffs are likely to succeed on any of
their three claims.
1. Plaintiffs’ First and Fourteenth Amendment Claims
Plaintiffs contend that Ohio’s signature-matching requirements
unconstitutionally burden their right to vote. Voting is a fundamental and
precious right, and “[o]ther rights, even the most basic, are illusory if the right to
vote is undermined.” Wesberry v. Sanders, 376 U.S. 1, 17 (1964). However,
“there must be a substantial regulation of elections if they are to be fair and
honest and if some sort of order, rather than chaos, is to accompany the
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democratic processes.” Anderson v. Celebrezze, 460 U.S. 780, 788 (1983)
(internal quotation marks and citation omitted). “To achieve these necessary
objectives, States have enacted comprehensive and sometimes complex election
codes. Each provision of these schemes . . . affects—at least to some degree—
the individual’s right to vote . . . .” Id. “Nevertheless, the state’s important
regulatory interests are generally sufficient to justify reasonable,
nondiscriminatory restrictions.” Id. Indeed, voting regulations do not
automatically trigger strict scrutiny even when they impact the right to vote
because, as the Supreme Court has instructed, “states ‘may, and inevitably must,
enact reasonable regulations of parties, elections, and ballots to reduce electionand campaign-related disorder.’” Libertarian Party of Ohio v. Blackwell, 462 F.3d
579, 585 (6th Cir. 2006) (quoting Timmons v. Twin Cities Area New Party, 520
U.S. 351, 358 (1997); citing Storer v. Brown, 415 U.S. 724, 730 (1974)).
The parties agree that Plaintiffs’ undue burden claim must be evaluated
under the Anderson-Burdick framework. Under Anderson-Burdick,
A court considering a challenge to a state election law must weigh
“the character and magnitude of the asserted injury to the rights
protected by the First and Fourteenth Amendments that the plaintiff
seeks to vindicate” against “the precise interests put forward by the
State as justifications for the burden imposed by its rule,” taking into
consideration “the extent to which those interests make it necessary
to burden the plaintiff’s rights.”
Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson, 460 U.S. at
789).

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The Court must therefore determine the nature of the burden the
signature-matching requirements place on voters when setting the standard of
review to apply. If the requirements are “reasonable nondiscriminatory
restrictions,” the Court will apply rational basis review and “‘the State’s important
regulatory interests are generally sufficient to justify’ the restrictions.” Burdick,
504 U.S. at 434 (quoting Anderson, 460 U.S. at 788). If, however, the signaturematching requirements are “severe restrictions, such as exclusion or virtual
exclusion from the ballot, strict scrutiny applies.” Thompson I, 959 F.3d at 808
(citing Burdick, 504 U.S. at 434). If the signature-matching requirements fall
somewhere between a “reasonable nondiscriminatory restriction” and a “severe
restriction,” the Court must weigh the burden imposed against “the precise
interests put forward by the State as justifications for the burden imposed by its
rule, taking into consideration the extent to which those interests make it
necessary to burden the plaintiff’s rights.” Id. (quoting Burdick, 504 U.S. at 434)
(internal quotation marks omitted).
a. Nature of the Burden
i. Notice and cure process for absentee ballots
Plaintiffs contend first that “Ohio’s signature-match scheme completely
disenfranchises voters whose absentee ballots are erroneously rejected because
of signature mismatches but who are not provided sufficient notice or time to cure

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their ballots before the deadline.” 13 Mot. 21, ECF No. 24. Defendant and
Intervenors counter that this claim is effectively barred by the Sixth Circuit’s
decision in NEOCH. In that case, the Sixth Circuit analyzed newly enacted
statutes that, among other things, reduced Ohio’s cure period for absentee
ballots from ten to seven days. 837 F.3d at 635. The Court saw “no evidence of
the magnitude of the burden” caused by the shortened cure period and noted
one board official’s testimony “that few voters even used the final three cureperiod days.” Id. Based on this, the Sixth Circuit found that the cure period was
a “minimal burden on voting [that was] easily outweighed by Ohio’s interest in
reducing the administrative strain felt by boards of elections before they begin to
canvass election returns.” Id.
The Court disagrees that NEOCH ends the analysis in this case for two
reasons. First, it is not clear that NEOCH foreclosed any future claim that the
seven-day cure period was an undue burden on voting. Instead, the Sixth Circuit
concluded that the record in that case was insufficient to support more than a
trivial burden. Id. In other words, it was a failure of proof, not a failure of the
claim as a matter of law.
Second, Plaintiffs’ claim here is broader in at least two ways than the claim
presented in NEOCH. NEOCH was a facial challenge to the shortened cure

13

Plaintiffs explicitly state that the question of whether “Ohio has a legitimate interest in
conducting signature matching in general . . . is not the subject of this litigation and not
before this Court.” Mot. 26, ECF No. 24.
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period. In this case, Plaintiffs assert that the “short cure period is particularly
burdensome in light of the serious delays in delivery time the U.S. Postal Service
is currently experiencing.” Mot. 22, ECF No. 24. Also, the NEOCH plaintiffs’
claims were limited to the impact of shortening the notice period from ten days to
seven days, whereas Plaintiffs in this case challenge Ohio’s signature-matching
procedures and the inability to cure perceived defects with ballot signatures
before the end of the cure period.
Having found that Plaintiffs’ claims are not barred by NEOCH, the Court
considers first the nature of the burden on Plaintiffs’ voting rights. Plaintiffs
provide some evidence that Ohio’s signature-matching procedures and cure
period burden the right to vote. First, Plaintiffs argue that delays in mail delivery
could result in no practical way to cure, even for voters who receive timely notice
of an allegedly mismatched signature. In support, Plaintiffs point to a letter
Defendant wrote to Ohio’s congressional delegation on April 23, 2020, which
indicated that first-class mail may take up to nine days to deliver. 14 Because
correcting a deficient absentee ballot requires multiple mail deliveries (i.e.
submission of the ballot, mailing the voter a Form 11-S, and the return of the
ballot), Plaintiffs estimate a voter could have to submit their ballot twenty days

14

Letter to Ohio Congressional Delegation, April 23, 2020,
https://www.ohiosos.gov/globalassets/media-center/news/2020/2020-04-24.pdf.
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before the election to cure a potential signature mismatch.15 Mot. 23, ECF No.
24. This may be impossible, Plaintiffs contend, because boards of elections do
not mail ballots until twenty-eight days before the election, meaning voters may
not receive them until nineteen days before the election. Reply 18, ECF No. 50.
But it is not just Plaintiffs saying this. General Counsel and Executive Vice
President of the United States Postal Service Thomas J. Marshall wrote to
Defendant on July 30, 2020, and said:
Under our reading of your state’s election laws, as in effect on
July 27, 2020, certain state-law requirements and deadlines appear
to be incompatible with the Postal Service’s delivery standards and
the recommended timeframe noted above. As a result, to the extent
that the mail is used to transmit ballots to and from voters, there is a
significant risk that, at least in certain circumstances, ballots may be
requested in a manner that is consistent with your election rules and
returned promptly, and yet not be returned in time to be counted.
....
If a voter submits a request at or near the deadline, and the
ballot is transmitted to the voter by mail, there is a significant risk that
the ballot will not reach the voter before the state’s postmark deadline
of November 2, and accordingly that the voter will not be able to use
the ballot to cast his or her vote.
Patashnik Decl., Ex. 14, ECF No. 24-1. While this letter did not separately
address the time it would take to mail cured absentee ballots, it supports
Plaintiffs’ contention that some voters will not be able to complete the process of
submitting a valid absentee ballot before Ohio’s deadlines.

15

The Ohio Election Official Manual assumes that point-to-point delivery of First-Class
Mail is 2 to 5 days.” Ohio Election Official Manual at 5-22, available at
https://www.sos.state.oh.us/elections/elections-officials/rules/ (last visited September
24, 2020).
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Plaintiffs also introduce evidence that Mangeni and Campbell were unable
to cast their ballots in the 2020 Primary Election because of Ohio’s signaturematching process. Mangeni attempted to vote in the 2020 Primary Election via
mail-in ballot. Mangeni Decl. ¶ 8, ECF No. 24-5. He never received a notice
from the Franklin County Board of Elections that there was an issue with his
ballot; however, he was later informed by LOWV that public records show
Mangeni’s ballot had been rejected due to signature mismatch. Id. ¶¶ 9–10.
Campbell also applied to vote by mail for the 2020 primary. Campbell
Decl. ¶ 6, ECF No. 24-4. After applying to vote by mail on or around February
19, 2020, Campbell’s application was rejected on or around March 5, 2020,
because of a signature mismatch. Id. ¶ 7. Campbell corrected her information
and her application was accepted on April 23, 2020.16 Id. ¶¶ 8–9. A new ballot
was mailed to Campbell on April 24, 2020, which she received on the 29th. Id.
¶¶ 9–10. Campbell then returned her completed ballot on or about April 30,
2020. Id. ¶ 10. This ballot was not counted, id. ¶ 11, presumably because it was
not timely submitted.
ii. Rejection of absentee ballot applications
Plaintiffs also argue that “Ohio’s signature-match regime constitutes
absolute disenfranchisement for those voters whose absentee ballot applications
are erroneously rejected for signature mismatch and who are either not notified in

16

Campbell’s declaration does not account for why her application was rejected on
March 5, 2020, but not corrected and accepted until April 23, 2020.
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sufficient time to cure or not notified at all.” Mot. 23, ECF No. 24. Plaintiffs
contend that “[n]o state law or regulation compels or expressly permits county
election officials to conduct a signature match analysis for applications for
absentee ballots” and “[t]here are no state laws or regulations that require that
counties inform voters whose applications are rejected on account of signature
mismatch, set a timeframe for notice to those voters, or lay out how voters can
cure any perceived signature mismatch on an absentee ballot application.” Id.
Defendant disagrees with Plaintiffs’ reading of the law. Defendant states
that “the boards must notify voters ‘promptly’ when the voters’ applications do not
contain all of the required information, Ohio Rev. Code § 3509.04(A), including
‘[t]he elector’s signature,’ Ohio Rev. Code § 3509.03(B)(2).” Def. Opp. 22, ECF
No. 41. An elector’s “signature” is defined as the “mark of that elector as it
appears on the elector’s voter registration record.” R.C. § 3501.011(C).
Therefore, if the signature on the application does not match the signature in the
county’s voter registration system, the application would not contain all of the
required information.
The Court agrees with Defendant’s interpretation of the statute and finds
that local boards are required to notify voters promptly if there is a signature
mismatch on their absentee ballot application. But even if the Court did not come
to that conclusion, Plaintiffs have failed to provide any evidence supporting their
argument that some voters are not notified when their absentee ballot application
is denied because of a signature mismatch.
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What they have provided is evidence that thousands of absentee ballot
applications have been rejected since the 2016 General Election because of
signature mismatches, but they have not connected this to any evidence that
these individuals were not notified of the signature mismatch or provided
sufficient time to cure. 17 Specifically, Plaintiffs cite to one of their experts who
analyzed three federal elections in Ohio and was able to document “10,038
cases in which an absentee ballot application was rejected for ‘signature issues,’
and [] was only able to confirm that 2,581 of those applicants (26%) were able to
resolve the issue and receive an absentee ballot, or, in some cases, cast a
provisional ballot at the polling place.” Street Report 18 ¶ 30, ECF No. 24-8. 19
This expert believes it is likely that many more applications were rejected in
counties for which he did not have data, but he could not precisely estimate how
many other applications would have been rejected because of the lack of
available information. 20 Id. But again, this does not break down how many of
these voters received notice of the signature mismatch.

17

In fact, as discussed above, Campbell was notified of a signature mismatch with her
application in the 2020 Primary Election.
18
Defendant has moved to exclude the reports and testimony of Plaintiffs’ experts. Mot.
to Exclude, ECF No. 43. In the interest of timely addressing Plaintiffs’ urgent motion for
a preliminary injunction, the Court does not address the motion to exclude in full at this
time. However, the Court has reviewed Defendant’s arguments regarding the experts’
qualifications and the usefulness of their testimony and only includes citation to
Plaintiffs’ experts here as the Court finds appropriate at this time.
19
In the instances where Dr. Street could distinguish between “no signature” and
“signature mismatch,” 55% of the rejected applications had a missing signature. Id.
20
Plaintiffs also point to a December 2019 Associated Press news article stating that
twenty-one counties (out of eighty-eight in Ohio) rejected more than 6,500 ballot
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In his opposition, Defendant critiques Plaintiffs’ claim by pointing out that
they “have produced precisely zero evidence that boards do not notify voters
when ballot applications are rejected for a mismatched signature.” Def. Opp. 23,
ECF No. 41. Defendant then discusses seven specific counties that responded
to Plaintiffs’ public records request by explaining how they do provide notice to
voters whose absentee ballot applications have a signature mismatch. Id. On
reply, Plaintiffs do not point to specific boards of elections that do not notify
voters whose applications were rejected due to signature mismatch.21
iii. Analysis of the nature of the burden
Based on the evidence put forward by Plaintiffs, they have demonstrated
some burden on the right to vote based on Ohio’s signature-matching
procedures. But this burden must be considered along with “the alternative
voting opportunities that Ohio provides.” Mays v. LaRose, 951 F.3d 775, 786
(6th Cir. 2020). In Mays, the Sixth Circuit considered the burden imposed on
individuals who planned to vote in-person on election day but were arrested
shortly before election day and therefore unable to vote. Id. Despite the fact that

applications for the 2018 General Election. Available at,
https://apnews.com/article/ddfed70e98d79cf0bee49eb1d9fd85b9 (last visited
September 24, 2020). That same article included a note that “[t]he few counties that
tracked what happened to applications after they were rejected said issues were largely
addressed before or on Election Day.”
21
The closest the Court could find to this type of evidence was Plaintiffs referring to the
declaration of one of their attorneys, which stated that “some boards of elections do not
maintain records of their efforts to notify voters of rejected absentee ballot applications.”
Patashnik Decl. ¶ 18, ECF No. 24-1. But this is a lack of evidence, not affirmative
evidence, and Plaintiffs are the party required to put forward evidence of the alleged
burden on voting.
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the plaintiffs’ arrests in Mays effectively prevented them from voting, the Sixth
Circuit agreed with this Court that strict scrutiny was inappropriate because
“Plaintiffs could have avoided all that uncertainty by taking advantage of the
opportunities Ohio provides to vote early.” Id. at 787. Therefore, the plaintiffs in
Mays were “not totally denied a chance to vote by Ohio’s absentee ballot
deadlines,” and strict scrutiny was inappropriate. Id.; see also Thompson I, 959
F.3d at 809 (“At bottom, a severe burden excludes or virtually excludes electors
or initiatives from the ballot.”)
The burden imposed on voters by Ohio’s signature-matching requirements
is certainly less than that imposed on jailed voters in Mays. Electors wishing to
vote absentee have multiple ways of being notified that there is a problem with
the signature on their application or ballot, an opportunity to cure, and the option
of voting provisionally on election day if it appears that they will not be able to
successfully vote absentee. Electors could also choose to simply not attempt to
vote absentee in the first place and instead vote early or on election day in
person. While this is some burden on the right to vote, it is not severe (or
“substantial” as Plaintiffs refer to it). See Mays, 951 F.3d at 786 (“Plaintiffs’
choice to not participate in the opportunities Ohio provides to vote . . . was, at
least in part, the cause of their inability to vote.”).
Plaintiffs suggest that, because of the COVID-19 pandemic, some
Ohioans, particularly older individuals or those with pre-existing medical
conditions, “have no practical choice but to vote by mail.” Reply 19–20, ECF No.
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50. The Sixth Circuit addressed a similar argument in Thompson and said “we
must remember, First Amendment violations require state action. . . . So we
cannot hold private citizens’ decisions to stay home for their own safety against
the State.” 959 F.3d at 810. The same is true here.
Voters are not virtually excluded from voting because of Ohio’s signaturematching requirements. But the requirements are not “so minimal as to warrant
rational-basis review,” which is appropriate if the restrictions “‘in no way’ limit[]”
access to voting. 22 Schmitt v. LaRose, 933 F.3d 628, 641 (6th Cir. 2019)
(quoting Libertarian Party of Ky. v. Grimes, 835 F.3d 570, 577 (6th Cir. 2016)).
The Court therefore finds that Ohio’s signature-matching requirements are a
moderate burden.
b. The State’s Interests
Next, under Anderson-Burdick, the Court must consider Defendant’s
justifications for Ohio’s signature-matching requirements. Defendant advances
two main interests served by the signature-matching process. First, Defendant
asserts that verifying voters’ signatures helps to combat fraud. Def. Opp. 27–29,
ECF No. 41.

22

Arguably, the burden here could be considered minimal based on Sixth Circuit
precedent. In Mays, the Court stated that Ohio’s generally applicable deadline to
submit absentee ballots, despite “eliminat[ing] opportunities to vote for electors who fail
to register before the deadline,” imposes only a minimal burden. Mays, 951 F.3d at
792. Nevertheless, the Court finds a moderate burden here given the present
circumstances.
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Next, Defendant asserts that Ohio’s signature-matching process promotes
orderly election administration. Def. Opp. 29–30, ECF No. 41. Defendant uses
the declaration of David Payne, the Deputy Director of the Franklin County Board
of Elections, to illustrate all of the tasks that a board of elections must complete
in the days and weeks following election day in order to accomplish the official
canvass of votes (i.e. the final tally of all ballots cast in the election). Payne Decl.
¶¶ 33–58, ECF No. 41-3. It is unnecessary to recite here all of the tasks boards
must accomplish in order to complete the canvass, but a small sample includes:
conducting the unofficial canvass beginning immediately after the polls close;
processing provisional ballots, which requires the boards to verify the eligibility of
the persons who cast a provisional ballot; 23 counting late-received absentee
ballots; issuing a Form 11-S to any voter who did not include all of the required
information on her absentee ballot identification envelope (the form must be sent
out on the same day the ballot was received); and sending a bipartisan team to
assist any voter who requests assistance completing a Form 11-S. Id.
Plaintiffs “acknowledge that the State has an interest in verifying voters’
identify [sic] in order to combat voter fraud.” Mot. 25, ECF No. 24. But Plaintiffs
also contend:
Ohio has no interest in a signature-matching scheme that lacks
adequate notice and an opportunity to cure for two reasons: (1)
23

In Franklin County, the board assigns approximately twenty-six staff members to
process provisional ballots after a presidential election. Payne Decl. ¶ 37, ECF No. 413. These staff members work seven days a week, at least eight hours per day, for two
weeks to be able to process the provisional ballots. Id.

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absentee ballot fraud is exceedingly rare, and (2) the current scheme,
wherein the state has set unreasonable deadlines that will not allow
for notice and opportunity to cure, is irrational and thus not sufficiently
tailored to justify the disenfranchisement that signature matching
errors can cause.
Id.
c. Weighing the burden on the right to vote against the State’s interest
Finally, the Court must weigh the burden imposed against the State’s
interest. As both parties agree, the State has a valid interest in combatting fraud
and even the appearance of fraud. While Plaintiffs and Intervenors 24 cite
drastically different research regarding the threat election fraud actually poses,
there is no question that combatting fraud and promoting confidence in elections
is a substantial interest of the State. Purcell v. Gonzalez, 549 U.S. 1, 4 (2006)
(“Confidence in the integrity of our electoral processes is essential to the
functioning of our participatory democracy.”).
Furthermore, the Sixth Circuit has previously found that “Ohio’s interest in
orderly election administration is weighty enough to justify” a moderate burden
(albeit a different burden than the one imposed here). Mays, 951 F.3d 792; see
also NEOCH, 837 F.3d at 635 (“[b]uilding in a three-day buffer between the cure
period and the official canvass is a common-sense solution” to deal with the
logistical issues facing boards of elections); Anderson, 460 U.S. at 788 (each

24

Defendant asserts that absentee-voter fraud is not common in Ohio but argues that
“Ohio need not wait for fraud to become widespread or threaten the integrity of elections
before it acts. Id. at 28 (citing NEOCH, 837 F.3d at 635 (“[A] state certainly need not
wait for an election issue to arise before enacting provisions to avoid it.”)).

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provision of states’ complex election codes “inevitably affects -- at least to some
degree -- the individual’s right to vote and his right to associate with others for
political ends. Nevertheless, the State’s important regulatory interests are
generally sufficient to justify reasonable, nondiscriminatory restrictions.”); Obama
for Am. v. Husted, 697 F.3d 423, 434 (6th Cir. 2012) (“If the State had enacted a
generally applicable, nondiscriminatory voting regulation . . . its ‘important
regulatory interests’ would likely be sufficient to justify the restriction.”).
Therefore, the Court finds that the State of Ohio’s interests in its signaturematching process outweigh the burdens that process imposes.
For these reasons, the Court finds that Plaintiffs are unlikely to succeed on
their claim that Defendant’s signature-matching processes are an undue burden
on Plaintiffs’ rights in violation of the First and Fourteenth Amendments to the
Constitution.
2. Procedural Due Process
Plaintiffs next argue that Ohio’s signature-matching process denies
Plaintiffs procedural due process. Mot. 27–31, ECF No. 24. Plaintiffs assert that
their right to vote and their right to vote by absentee ballot are clearly defined
liberty interests; therefore, the Court should balance the following three Mathews
factors:
First, the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest through
the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the Government’s
interest, including the function involved and the fiscal and
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administrative burdens that the additional or substitute procedural
requirement would entail.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
Defendant suggests that the Court need not conduct a separate analysis
under Mathews because “[t]he Anderson-Burdick balancing test was designed to
determine whether challenged laws satisfy due process.”25 Def. Opp. 31, ECF
No. 41 (citing Obama for Am., 697 F.3d at 429–30 (stating that the Supreme
Court has created “a single standard for evaluating challenges to voting
restrictions”—Anderson-Burdick)).
Sixth Circuit case law does not provide a definitive answer as to whether
procedural due process claims are viable in voting rights cases outside the
Anderson-Burdick framework. Obama for America seems to suggest that they
are not, but that case did not specifically address procedural due process claims
when making its broad pronouncement that voting restrictions should all be
evaluated under a single standard. Furthermore, the Sixth Circuit in NEOCH
reviewed the district court’s denial of a procedural due process claim in a voting
rights case without suggesting that such a claim lacks viability outside Anderson-

25

Intervenors argue that the Sixth Circuit does not recognize procedural due process
challenges under Mathews. Int. Opp. 27, ECF No. 44 (citing League of Women Voters
v. Brunner, 548 F.3d 463, 479 (6th Cir. 2008)). Brunner did not categorically bar
procedural due process claims for voting rights cases, however. Instead, the Court
found that the procedural due process claim as alleged in the plaintiffs’ complaint failed.
Id. The Court also relied on the “brevity of argument” in the plaintiffs’ brief, which
subsumed the plaintiffs’ procedural due process arguments into the substantive due
process analysis. Id.
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Burdick. NEOCH, 837 F.3d at 637. Therefore, the Court will proceed to analyze
Plaintiffs’ procedural due process claim under Mathews.
Under the first prong of the Mathews test, the Court considers the private
interest that will be affected. Plaintiffs argue that the interest at stake is the
“fundamental right to vote.” The Court disagrees. The private interest that will be
affected by the State’s signature-matching process is the right to vote via
absentee ballot. And while the Court agrees that this “implicates the right to
vote,” Ga. Muslim Voter Project v. Kemp, 918 F.3d 1262, 1270–71 (11th Cir.
2019), this right must be understood within the broader context of the other
opportunities voters in Ohio have to exercise their fundamental right to vote. As
discussed above, Ohio voters have multiple options to exercise their right to vote
even if their ballot is rejected due to signature mismatch (e.g. curing the
absentee ballot or voting provisionally).
Next, the Court considers the “risk of erroneous deprivation” of the liberty
interest at stake. One of Plaintiff’s experts, Dr. Street, has opined that “there is
only a 3% probability that an absentee ballot which has been rejected for
signature mismatch actually features an invalid signature. There is a 97%
probability that the ballot has been wrongly rejected.” 26 Street Report ¶ 19, ECF

26

Meanwhile, Defendant has provided evidence that the total number of voters whose
absentee ballots are rejected due to a mismatched signature is quite low. Def. Opp. 7,
ECF No. 41. According to Deputy Assistant Secretary of State and State Elections
Director Amanda M. Grandjean, in the 2016 General Election, only 335 absentee ballots
were rejected due to a non-matching signature out of 1,206,416 absentee ballots cast.
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No. 24-8. The Court need not wade into Dr. Street’s statistical analysis at this
point of the litigation to determine whether this estimate is useful or valid,
because it misses the broader point. Even if it is true that the error rate in
matching signatures is that high, as discussed above, Plaintiffs have failed to
demonstrate that voters are unable to effectively use Ohio’s cure process when
their ballots have been rejected. There is only an erroneous deprivation of the
right to vote absentee if Plaintiffs do not receive notice and an opportunity to
cure.
Finally, the Court must consider the Government’s interest in the
procedural requirements, which it has already done above as part of the
Anderson-Burdick analysis. The State has a substantial interest in preventing
election fraud (however uncommon that may be), promoting confidence in
elections, and administering an orderly election.
Balancing the three Mathews factors, the Court finds Plaintiffs are not likely
to succeed on the merits of their procedural due process claim.
3. Equal Protection
Plaintiffs’ final claim is that “[t]he ad hoc procedures adopted by county
boards of elections for signature matching on absentee ballot applications and

Grandjean Decl. ¶ 42, ECF No. 41-2. For the 2018 General Election it was 234 ballots
rejected out of 949,104 cast, and for the 2020 primary it was 217 rejected out of
1,565,792 cast. Id. ¶¶ 42–43. Of those three elections, the 2016 General Election had
the worst rejection rate due to mismatched signature, and it occurred in less than .03%
of absentee ballots submitted.
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absentee ballots, a result of the State’s failure to impose uniform standards,
violate the equal protection rights of Plaintiffs and Ohio voters.” Mot. 32, ECF
No. 24. “[W]hen a state regulation is found to treat voters differently in a way that
burdens the fundamental right to vote, the Anderson-Burdick standard applies.”
Obama for America, 697 F.3d at 430 (citing Hunter v. Hamilton Cty. Bd. of
Elections, 635 F.3d 219, 238 (6th Cir. 2011)).
Therefore, the Court must again begin with a determination of the
character and magnitude of the asserted injury. Plaintiffs point to the different
procedures boards of elections use to review signatures, which include, among
other things:
(1) the number and position of election officials who review signatures
to determine whether they match, (2) the criteria (if any) for what
constitutes a matched or mismatched signature, and (3) the extent to
which the boards of elections store more than one signature sample
for each voter and whether they use such additional samples to
compare a voter’s signature from a ballot or ballot application.
See Patashnik Decl. ¶ 10, ECF No. 24-1; see also Mot. 33 n.31, ECF No. 24.
Defendant disagrees with Plaintiffs that there is any differential treatment in
the notice and cure procedures between counties. Def. Opp. 35, ECF No. 41. In
support, Defendant says that, with one exception, the public records responses
upon which Plaintiffs rely to show differential treatment were all completed prior
to July 6, 2020, when Defendant “explicitly instructed the boards how to notify
voters of absentee-ballot and application errors, including signature mismatches.”
Id. at 35–36 (citing Sec’y of State Directive 2020-11, available at
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https://www.ohiosos.gov/elections/elections-officials/rules/ (last visited
September 20, 2020)). But more fundamentally, Defendant contends that
Plaintiffs have not shown that any differences in the signature-matching
procedures used by various counties have any effect on the ability to vote. Id. at
36–37. According to Defendant:
Plaintiffs have offered only limited statewide numbers on rejection
rates that do not establish that the different processes of or training
on signature matching have any discernable effect. Put another way,
Plaintiffs have not shown any factual likelihood that a signature that
would match in Butler County would ultimately be rejected in Knox
County.
Id. at 37.
Plaintiffs disagree with Defendant’s focus on the lack of evidence of
different results between counties, as opposed to different procedures, for three
reasons. First, Plaintiffs argue that the “lack of statewide standards and the
accompanying burden it places on voters is sufficient on its own to make out an
equal protection claim.” Reply 25, ECF No. 50. Second, Plaintiffs assert that
they are not required to prove their case in full at this stage of the litigation, and
“Plaintiffs’ evidentiary burden here is even less given that Defendant LaRose
controls whether statewide data concerning signature-matching procedures exist
yet chooses not to maintain much of those [sic] data.” Id. at 26. Third, Plaintiffs
contend that they have “provided ample evidence of differential treatment,” which
they say is the way in which county boards of elections “(1) follow different
procedures for determining whether signatures match, (2) rely on different levels
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of internal review of signature mismatch decisions, and (3) provide different
means of notice to voters of signature mismatches.” Id. at 27.
The Court agrees with Defendant. In order to make out an equal
protection claim, Plaintiffs are required to show not just some difference in the
way boards of elections carry out their duties, but that this difference “burdens
the fundamental right to vote.” Obama for America, 697 F.3d at 430. In order to
do that, Plaintiffs must put forward some evidence that the way in which counties
are matching signatures impacts the way in which ballots are ultimately accepted
or rejected. See NEOCH, 837 F.3d at 635 (“A plaintiff may state an equalprotection claim by alleging that lack of statewide standards results in a system
that deprives citizens of the right to vote based on where they live.”). The
“central question” is “whether Ohio lacks ‘adequate statewide standards for
determining what is a legal vote.’” Id. (quoting Bush v. Gore, 531 U.S. 98, 110
(2000) (per curiam)). “Arguable differences in how elections boards apply
uniform statewide standards to the innumerable permutations of ballot
irregularities, although perhaps unfortunate, are to be expected.” Id. at 636.
Plaintiffs challenge the differences in how signature-matching standards are
applied, but they fail to show that these differences result in voters in one county
being treated more favorably than in another.
For this reason, the Court finds a minimal burden on the right to vote
based on differences in how counties match ballot signatures. The State’s
regulatory interests are sufficient to justify this minimal burden. See Burdick, 504
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U.S. at 434 (quoting Anderson, 460 U.S. at 788). Therefore, Plaintiffs are
unlikely to succeed on their equal protection claim.
4. Summary
For all these reasons, Plaintiffs are unlikely to prevail on the merits of any
of their claims, which is the most important part of the Court’s analysis.
Nevertheless, the Court will briefly address the remaining preliminary injunction
factors.
C. Irreparable Harm
“[A]ny time a State is enjoined by a court from effectuating statutes
enacted by representatives of its people, it suffers a form of irreparable injury.”
Thompson v. DeWine (“Thompson II”), No. 20-3526, __ F.3d __, 2020 U.S. App.
LEXIS 29602, at *14 (6th Cir. Sept. 16, 2020) (per curiam) (quoting Maryland v.
King, 567 U.S. 1301 (2012)). Therefore, because the Court has found Defendant
is likely to prevail on the merits, issuing an injunction “would cause the State
irreparable harm if we blocked it from enforcing its constitutional [voting] laws.”
Id.
D. Balance of the Equities
“When analyzing the balance of equities, ‘[the Supreme] Court has
repeatedly emphasized that lower federal courts should ordinarily not alter the
election rules on the eve of an election.’” Kishore v. Whitmer, No. 20-1661, __
F.3d __, 2020 U.S. App. LEXIS, at *11 (6th Cir. Aug. 24, 2020) (quoting
Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1207
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(2020)); see also Purcell v. Gonzalez, 549 U.S. 1, 4–5 (2006) (per curiam)
(“[c]ourt orders affecting elections, especially conflicting orders, can themselves
result in voter confusion and consequent incentive to remain away from the polls.
As an election draws closer, that risk will increase.”); SEIU Local 1 v. Husted,
698 F.3d 341, 345 (6th Cir. 2012) (“As a general rule, last-minute injunctions
changing election procedures are strongly disfavored.” (citing Purcell, supra)).
While there is still a month to go before the election, issuing an injunction now
would create a major rule change for both Defendant and local boards of
elections to adjust to while pre-election activities are ramping up. The State has
been accepting absentee ballot applications for months, and the ballots
themselves will soon be mailed.
Additionally, the Court believes that changing the rules regarding
verification of signatures on ballots at this time would be particularly damaging.
Some public officials have unfortunately regularly cast doubt on the security and
legitimacy of voting by mail. A federal court enjoining part of the State’s
procedure for maintaining the security of mail-in voting in the weeks leading up to
the election could further undermine public confidence in elections.

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E. Public Interest
“It’s in the public interest that we give effect to the will of the people ‘by
enforcing the laws they and their representatives enact.’” Thompson II, 2020
U.S. App. LEXIS 29602, at *15 (quoting Thompson I, 959 F.3d at 812). 27
IV.

CONCLUSION

As this Court has said, “[t]he Constitution does not require the best plan,
just a lawful one.” League of Women Voters v. LaRose, No. 2:20-cv-1638, 2020
U.S. Dist. LEXIS 91631, at *32 (S.D. Ohio Apr. 3, 2020). Plaintiffs have not
shown that they are likely to succeed in their argument that the State of Ohio’s
signature-matching process is not only imperfect, but unconstitutional. For the
above reasons, Plaintiffs’ motion for a preliminary injunction, ECF No. 24, is
DENIED.
IT IS SO ORDERED.

/s/ Michael H. Watson________________
MICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT
27

The Court’s analysis of the final three factors should make it evident why likelihood of
success is often the determinative factor in cases involving alleged constitutional
violations. See Obama for Am., 697 F.3d at 436. If the Court had found Plaintiffs were
likely to succeed on the merits, the Sixth Circuit’s analysis of the remaining factors from
Obama for America may have been more applicable. That case suggests irreparable
harm would have favored Plaintiffs if they were likely to succeed on the merits, because
[w]hen constitutional rights are threatened or impaired, irreparable injury is presumed.”
Id. Similarly, the balance of equities and the public interest also may have weighed in
Plaintiffs’ favor because “the public has a ‘strong interest in exercising the ‘fundamental
political right’ to vote,’” id. (quoting Purcell, 549 U.S. at 4), and “[t]hat interest is best
served by favoring enfranchisement and ensuring that qualified voters’ exercise of their
right to vote is successful.” Id. at 437 (quoting Hunter, 635 F.3d at 244).
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