Case: 1:20-cv-01908-DAP Doc #: 89 Filed: 10/07/20 1 of 10. PageID #: 2834

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
A. PHILIP RANDOLPH INSTITUTE OF OHIO, et al.,
Plaintiffs,
v.
FRANK LAROSE, in his official capacity as Secretary
of State of Ohio,

Case No. 1:20-cv-01908
Hon. Dan Aaron Polster

Defendant.

PLAINTIFFS’ MOTION FOR RECONSIDERATION
OF OCTOBER 6, 2020 OPINION AND ORDER
Pursuant to Federal Rules of Civil Procedure 59(e) and 60(b), Plaintiffs respectfully
request that the Court reconsider its Opinion and Order, dated October 6, 2020, dismissing this
case without prejudice. Dkt. No. 88. In turn, Plaintiffs request that the Court issue a ruling in
favor of Plaintiffs on their Preliminary Injunction Motion. Dkt. No. 13. In the time since the
October 6th Opinion and Order was entered, counsel for Defendant LaRose has clarified his
position that, expressly contrary to this Court’s interpretation, Directive 2020-22 does not allow
county boards of election to conduct off-site ballot collection. Accordingly, the controversy
between the parties remains, and an injunction remains appropriate.
I.

Background
On August 12, 2020, Defendant Frank LaRose issued Directive 2020-16, which states

that “[b]oards of elections are prohibited from installing a drop box at any other location other
than the board of elections.” Exh. A, Ohio Sec’y of State, Directive 2020-16 (Aug. 12, 2020).

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On August 26, 2020, Plaintiffs challenged Directive 2020-16 on the grounds that the Directive’s
prohibition on additional drop boxes1 places unconstitutional burdens on Ohioans’ right to vote
and violates the Fourteenth Amendment’s Equal Protection Clause. Dkt. No. 1. Plaintiffs filed a
Motion for a Preliminary Injunction on September 4, 2020. Dkt. No. 13. The Court held an
evidentiary hearing on the Motion on September 23, 2020 and heard argument on September 24,
2020.
On September 25, 2020, the Court issued an Order “holding in abeyance any ruling on
Plaintiffs’ motion for a preliminary injunction to see if the conclusion of the state litigation
moots this case.” Dkt. No. 77 at 6. With respect to Cuyahoga County, the Court found that:
The record shows that the Cuyahoga County board’s physical layout cannot
accommodate the large number of voters who are expected to descend upon board
headquarters at E. 30th and Euclid on election day and the days immediately
before to access the drop box in the middle of its parking lot. The Court credits
the testimony of board member Inajo Chappell and expert witness Dr. Daniel
Chatman that predicted the massive traffic jam and delay will likely lead to many
voters giving up and losing their ability to vote. Dr. Chatman also testified that
many urban voters, who are disproportionately people of color and low income,
do not have cars, and that it would take them more than two hours round trip by
public transportation to get to the sole drop box at the board offices. The
Cuyahoga County board therefore voted on September 14 to implement a system
of off-site ballot delivery. Board employees would go to six public libraries on
pre-announced days (every Tuesday, Thursday, and Saturday between October 13
and 31, from 12:00-6:00 pm) to receive completed ballots. The board employees
would then return the ballots to the board office. A few hours after the vote, the
Secretary of State sent an e-mail to the board prohibiting them from implementing
1

The term “drop box” is used broadly by election officials to refer to any secure receptacle, unstaffed or
staffed, by which voters are able to hand-deliver their absentee ballots to election officials. See Exh. B,
Pls. Exh. 8, McGuire Decl., at 16 (“A ballot drop box provides a secure and convenient means for voters
to return their mail ballot. A drop box is a secure, locked structure operated by election officials where
voters may deliver their ballots from the time they receive them in the mail up to the time polls close on
Election Day. Ballot drop boxes can be staffed or unstaffed, temporary or permanent. Unstaffed drop
boxes are typically available 24 hours a day and permanently anchored in place. Staffed drop boxes are
typically available during regular business hours and monitored by trained workers during those hours.”);
Exh. C, McGuire Test. at 169:21-170:1 (testifying that “ballot drop box,” “ballot drop box receptacle,”
“ballot collection location,” or “ballot drop site” are synonymous terms). Thus, the Court rightly used the
term “drop box” to cover any such secure receptacle. Dkt. No. 88 at 1, 2, 3; Dkt. No. 77 at 2, 3, 4, 5, 6.

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this plan until instructed otherwise by the Secretary of State. The e-mail referred
to Ohio’s voting statutes and to the pending state and federal litigation.
Id. at 4-5. The Court further found that “[t]he evidence Plaintiffs presented at the September 23
hearing of the looming crisis facing Cuyahoga County voters was not rebutted.” Id. at 6. The
Court, therefore, ordered Defendant LaRose to “work closely with the Cuyahoga County board
of elections to develop and implement a plan to alleviate the looming crisis for voters who plan
to personally deliver their ballots for the November 3 election rather than returning them by
mail.” Id. at 6-7.
On October 2, 2020, the Tenth District Court of Appeals upheld the state trial court’s
determination that Ohio law neither prohibits nor requires ballot drop boxes at locations other
than the boards of elections, leaving in place Directive 2020-16’s prohibition on additional drop
boxes. See Ohio Democratic Party et al. v. LaRose, No. 20AP432 (Ohio Ct. App. Oct. 2, 2020).
Defendant LaRose submitted a Notice in response to the Court’s September 25th Order
on September 30, 2020. Dkt. No. 79. The Notice stated that Defendant LaRose had approved
the portion of the Cuyahoga County Board of Election’s plan to allow the Board staff collect
absentee ballots in the parking lot at 3100 Chester Avenue. Id. The Notice implicitly rejected
the Board’s plan to move forward with its proposed system of off-site ballot delivery at six
libraries around the county. On October 5, 2020, Defendant LaRose issued Directive 2020-22
“clarifying” that “Directive 2020-16, never prohibited and does not prohibit a board of elections
from installing more than one secure receptacle outside the office of the board of elections.”
Exh. D, Ohio Sec’y of State, Directive 2020-22 at 3 (emphasis in original).
The Court issued its sua sponte Opinion and Order dismissing this action without
prejudice yesterday, October 6, 2020, on the grounds that Directive 2020-22 “authorized any
board to deploy its staff to receive ballots at sites other than the board office. This means that the
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Cuyahoga County board may implement its intended plan to receive ballots at six public
libraries, and that any other board in Ohio that votes to do so may deploy its staff to receive
ballots off-site, so long as the board complies with the procedures set forth in Section II of
Directive 2020-22.” Dkt. No. 88 at 3. The Court found that “[t]here is no evidence before the
Court that Secretary LaRose is currently prohibiting any board from doing something it voted to
do to protect the voting rights of its citizens with respect to off-site drop boxes or off-site
delivery of ballots. Therefore, there is no problem that requires an injunction.” Id.
Defendant LaRose, however, has taken a position contrary to the Court’s reading
regarding the meaning of Directive 2020-22. Soon after the Court issued its Opinion and Order
yesterday, an assistant prosecuting attorney at the Cuyahoga County Prosecutor’s Office wrote to
Bridget Coontz, Section Chief – Constitutional Offices Section, Office of Ohio Attorney General
and Counsel to Defendant LaRose stating that:
with the prior unanimous approval of the Cuyahoga County BOE,
there is interest in moving forward with the plan to accept absentee
ballot deliveries at locations outside the Board of Elections’ office
in addition to the 3100 Chester Avenue site that we previously
discussed. If your client does not object, I will advise the
Cuyahoga County BOE that it may proceed as originally planned
with deploying bipartisan teams to the libraries to accept deliveries
in a manner that conforms with Section II of Directive 2020-22.
Exh. E, Coontz Email Chain at 2-3.
In response, at 7:00 am this morning, Ms. Coontz stated that “contrary to the Court’s
statement in its Order, the Secretary’s recent Directive 2020‐22 did not authorize the portion of
the Cuyahoga County Board’s Plan ‘to receive ballots at six public libraries,’ nor did the
Directive authorize ‘any other board in Ohio that votes to do so [to] deploy its staff to receive
ballots off‐site.’” Id. at 2; see also Exh. F, Dayton Daily News, LIVE: Dayton Daily News
Community Conversation: Will Your Vote Count?,
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https://www.facebook.com/daytondailynews/videos/346305596701815, at min. 41:25-42:15
(Merle Madrid, Chief Of Staff for Defendant LaRose, stating that “our Directives 2020-16 and
2020-22 laid out the option for boards of elections to have drop boxes at their board of elections
or do manned drop off at the board of elections . . . the voting has started and the Directives are
in place to have drop boxes at the board of elections and manned drop off at the board of
elections for absentee ballot return”).
Ms. Coontz also touted the fact that the Court had dismissed this case Exh. E, Coontz
Email Chain, and, contrary to the September 14, 2020 Email from Director of Elections Amanda
Grandjean to the Cuyahoga County Board invoking this litigation as a reason to prohibit off-site
ballot collection, Exh. G, Pls. Exh. 54, Grandjean Email Chain, now claims that the Defendant
LaRose’s continuing prohibition of the Cuyahoga County plan has nothing to do with this
litigation. All of this conduct flies in the face of Defendant LaRose’s previous statements that he
would like to authorize multiple drop boxes in every county if the law allows it. Exh. H, Pls.
Exh. 33, LaRose Town Hall Forum – Three months from Election Day Video. Which the law
does. Ohio Democratic Party et al. v. LaRose, No. 20AP432 (Ohio Ct. App. Oct. 2, 2020).
II.

Legal Standard
The Court has discretion to reconsider its own judgments and orders under Federal Rules

of Civil Procedure 59(e) and 60(b). Lonardo v. Travelers Indem. Co., 706 F. Supp. 2d 766, 80809 (N.D. Ohio 2010) (“The grant or denial of a Rule 59(e) motion is within the informed
discretion of the district court, reversible only for abuse.” (quoting Betts v. Costco Wholesale
Corp., 558 F.3d 461, 467 (6th Cir. 2009)); Boone v. Warden, Mansfield Corr. Inst., 2020 WL
3488734 (S.D. Ohio June 26, 2020) (holding that whether to grant relief under Rule 60(b) is

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“within the sound discretion of the court and will not be disturbed on appeal unless the court has
abused its discretion”).
“A Rule 59(e) motion may be well-taken if there is (1) a clear error of law; (2) newly
discovered evidence; (3) an intervening change in controlling law; or (4) to prevent manifest
injustice.” Lonardo, 706 F. Supp 2d at 808-09 (citing Intera Corp. v. Henderson, 428 F.3d 605,
620 (6th Cir. 2005)) (granting motion to reconsider where an affidavit provided information that
the Court had not previously considered). Under Rule 60(b), relief is appropriate in cases of
“mistake, inadvertence, surprise, or excusable neglect,” or for “any other reason that justifies
relief.” Fed. R. Civ. P. 60(b). For example, when there is “a substantive mistake of law or fact in
the final judgment or order.” Boone v. Lazaroff, 2020 WL 2711403, at *2 (S.D. Ohio May 26,
2020) report and rec. adopted sub nom (quoting United States v. Reyes, 307 F.3d 451, 455 (6th
Cir. 2002)).
III.

Argument
The Court’s October 6th Opinion and Order relied on the belief that Defendant LaRose

had taken action to address the “looming crisis for voters” in Cuyahoga County. Dkt. No. 77 at
7. Defendant LaRose, however, has utterly failed to take any such action. Rather, contrary to
the Court’s October 6th Opinion and Order, and with no basis for doing so, Defendant LaRose
continues to prohibit any ballot collection other than at the board of elections. Exh. E, Coontz
Email Chain at 1. Defendant LaRose has rejected the portions of the Cuyahoga County Board of
Elections plan that called for additional collection locations at public libraries. Id. This
prohibition serves no relevant or legitimate state interest, and does not address the “looming
crisis” the Court described in its September 25th Order, which Plaintiffs have shown imposes a
substantial burden on their and their members’ rights to vote.

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Because neither Directive 2020-22, nor any other action taken by Secretary LaRose, has
alleviated Directive 2020-16’s unconstitutional burden on Ohioans’ right to vote, there is clearly
still a “problem that requires an injunction.” Dkt. No. 88 at 3. To resolve this constitutional
problem and “to prevent manifest injustice” to Ohio voters, the Court should reconsider its
October 6th Opinion and Order and enjoin Directive 2020-16 to the extent it prohibits Ohio
county boards of elections from installing a drop box at any other location other than the boards
of elections. See Lonardo, 706 F. Supp 2d at 808.
IV.

Conclusion
For the foregoing reasons, the Court should reconsider its October 6, 2020 Opinion and

Order and enjoin Directive 2020-16 to the extent if prohibits Ohio county boards of elections
from installing drop boxes at any location other than the board of elections. Plaintiffs are
prepared to submit Findings of Fact and Conclusions of Law in support of the issuance of the
injunction, and a detailed Order that lays out the appropriate injunctive relief, given these latest
events.

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Dated: October 7, 2020

Respectfully submitted,
/s/ James Schuster
James Schuster (Ohio Bar No. 0065739)
JSA LLP
2355 Bellfield Ave.
Cleveland Heights, OH 44106
Telephone: (216) 882-9999
jschuster@OHcounsel.com
Jon Greenbaum
Ezra D. Rosenberg
Pooja Chaudhuri
LAWYERS’ COMMITTEE FOR
CIVIL RIGHTS UNDER LAW
1500 K Street N.W., Suite 900
Washington, D.C. 20005
Telephone: (202) 662-8600
jgreenbaum@lawyerscommittee.org
erosenberg@lawyerscommittee.org
pchaudhuri@lawyerscommittee.org
Subodh Chandra (Ohio Bar No. 0069233)
Donald P. Screen (Ohio Bar No. 0044070)
Brian D. Bardwell (Ohio Bar No. 0098423)
THE CHANDRA LAW FIRM LLC
1265 W. 6th St., Suite 400
Cleveland, OH 44113-1326
Telephone: (216) 578-1700
Subodh.Chandra@ChandraLaw.com
Donald.Screen@ChandraLaw.com
Brian.Bardwell@ChandraLaw.com
Freda J. Levenson (Ohio Bar No. 0045916)
ACLU OF OHIO FOUNDATION
4506 Chester Avenue
Cleveland, Ohio 44103
Telephone: (216) 472-2220
flevenson@acluohio.org
David J. Carey (Ohio Bar No. 0088787)
ACLU OF OHIO FOUNDATION
1108 City Park Avenue, Suite 203
Columbus, Ohio 43206
Telephone: (614) 586-1972 x2004
dcarey@acluohio.org
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Neil A. Steiner
Mariel R. Bronen
DECHERT LLP
Three Bryant Park
1095 Avenue of the Americas
New York, New York 10019
Telephone: (212) 689-3500
neil.steiner@dechert.com
mariel.bronen@dechert.com
Erik Snapp
DECHERT LLP
35 West Wacker Drive, Suite 3400
Chicago, IL 60601
Telephone: (312) 646-5800
erik.snapp@dechert.com
Lindsey B. Cohan
DECHERT LLP
515 Congress Avenue, Suite 1400
Austin, Texas 78701
Telephone: (512) 394-3000
lindsey.cohan@dechert.com
Theodore E. Yale
DECHART LLP
Cira Centre, 2929 Arch Street
Philadelphia, PA 19104
Telephone: (215) 994-4000
theodore.yale@dechert.com
Counsel for Plaintiffs

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CERTIFICATE OF SERVICE
I CERTIFY that on October 7, 2020, a true and correct copy of the foregoing was
furnished by electronic filing with the Clerk of the Court via CM/ECF, which will send notice of
electronic filling to all counsel of record.
/s/ James Schuster

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