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6th Cir. Reverses Ohio Jail Voting Decision for Lack of Standing

By Mark Wilson, Esq. on October 28, 2014 | Last updated on March 21, 2019

It sounds like one of Jerry Seinfeld's rejected comedy routines: "And what's the deal with Ohio and voting restrictions?"

With Ohio's voter ID law headed to the U.S. Supreme Court, the Sixth Circuit decided another bit of Ohio's election law. But this one's a little bit different.

Inmates Treated Differently

In Ohio, the deadline for obtaining an absentee ballot is 6 p.m. the Friday before Election Day. This means that if a person is jailed after 6 p.m. on Friday, and is held through Election Day but hasn't already arranged to vote by other means, he doesn't get to vote. Only convicted felons lose their right to vote in Ohio, which means that suspects being held still do have the right to vote.

But it gets more interesting. If a person is incarcerated pending trial for a crime, that person can apply for an absentee ballot. If a person is unable to get to the polling place on Election Day because his or her minor child is confined to a hospital due to an unforeseen medical emergency, that person qualifies for a special ballot procedure. But there's no procedure for a person jailed from Friday through Election Day.

No Standing

Several voting rights groups sued in federal court over this issue and won. But the Sixth Circuit reversed, finding that the groups failed to establish an injury, and consequently, they lacked Article III standing.

As the Sixth Circuit saw it, the groups didn't present a plaintiff who was or would be injured by the law and whose injury could be redressed by the court. Standing requires that the plaintiff be able to obtain "some relief other than the satisfaction of making the government comply with the law."

And even if that weren't a problem, the groups "would confront the additional barrier of the long-recognized limit on plaintiffs asserting the rights of third-parties." Yes, for some reason, no actual voter was a plaintiff in the case, just three voter outreach groups. There isn't even a relationship between the putative plaintiff group -- "unidentified, future late-jailed voters" -- and the voter organizations.

Dissent: Diversion of Resources

In dissent, Judge R. Guy Cole Jr. said the organizations' "diversion of resources" theory was sufficient to establish standing. The Supreme Court, and other circuit courts of appeals, have held that an organization suffers an injury for standing purposes when it has to "'divert its resources, [and] its staff time and energy' in response to a defendant's unlawful actions."

Notably, neither the majority's nor the dissent's opinion mention a crucial fact: There was an actual person who testified at the trial who was jailed over the weekend and unable to vote in the 2012 election. In fact, there were as many as 400 people in that situation. Arguably, this is one of those "capable of repetition, yet evading review" scenarios, because by the time the case is litigated, the election is over and no relief can be granted.

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