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Case: 1:10-cv-00596-SJD Doc #: 10 Filed: 09/27/10 Page: 1 of 16 PAGEID #: 132

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

RALPH VANZANT, et al., Plaintiffs, v. JENNIFER BRUNNER, Defendant.

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Case No. 1:10-cv-596 Chief Judge Susan J. Dlott ORDER DENYING PLAINTIFFS MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

This matter is before the Court on Plaintiffs motion for a temporary restraining order and a preliminary injunction (doc. 3). At a conference with the parties held September 3, 2010, Plaintiffs counsel said an evidentiary hearing was unnecessary. Accordingly, the Court resolves the motion on the basis of the written submissions of the parties. Plaintiffs, four Ohio citizens registered to vote in the counties of their residence (Highland, Butler, Lawrence, and Clinton), assert that the Ohio Secretary of States failure to standardize among the counties the mailing of absentee ballot applications and the prepayment of postage on absentee ballot applications and ballots violates the Equal Protection and Due Process Clauses of the United States Constitution. At issue are three specific practices: (1) the practice of some, but not all, Ohio county boards of elections to mail applications for absentee ballots to all qualified electors in the county; (2) the practice of some, but not all, Ohio county boards of elections to prepay the postage for electors to return the absentee ballot application; and (3) the practice of some, but not all, Ohio county boards of elections to prepay the postage to return the absentee ballot to the director of the county board of elections. Plaintiffs seek an order 1

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from this Court enjoining Defendant Secretary of State Jennifer Brunner to issue a directive that (1) no county boards of elections may mail applications for absent voters ballots to all electors within the county unless all counties in Ohio are required to mail applications to all electors in the county; (2) no county boards of elections may prepay the postage to submit an application for an absent voters ballot unless all counties in Ohio are required to prepay the postage; and (3) no Ohio county board of elections may prepay the postage to return an absent voters ballot. Defendant, Ohio Secretary of State Jennifer Brunner, denies that these differences among the counties implicate constitutional protections. Having considered the evidence and the arguments of counsel, the Court finds that Plaintiffs have not met their burden of demonstrating an entitlement to injunctive relief. For the following reasons, the Court will DENY Plaintiffs motion. I. BACKGROUND Ohio requires the board of elections of each county to provide absent voters ballots for use at every primary and general election. Ohio Rev. Code 3509.01(A). Any qualified elector1 may vote by absent voters ballots at an election. Ohio Rev. Code 3509.02. The process of voting by absentee ballot also is referred to as early voting. A qualified elector desiring to vote by absentee ballot must submit to the director of his or her county board of elections a written application for the ballot. Ohio Rev. Code 3509.03. Upon receipt of an application containing all the required information, the director shall deliver an absentee ballot to the applicant in person or mail. Ohio Rev. Code 3509.04.

Elector means a person having the qualifications provided by law to be entitled to vote. Voter means an elector who votes at an election. Ohio Rev. Code 3501.01(N), (O). 2

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Along with the ballot, the director must provide the elector with a return envelope. Id. The elector then shall either mail the completed ballot to the director in the return envelope, postage prepaid or deliver it to the director in person or via a family member. Ohio Rev. Code 3509.05(A). On November 2, 2010, Ohio will hold a general election at which voters will select candidates for numerous federal and statewide offices. On August 24, 2010, the Franklin County Board of Elections mailed applications for absentee ballots to all registered electors in that county. The boards of elections of Cuyahoga, Hamilton, Madison, and Montgomery counties also intend to mail applications for absentee ballots to all registered electors within their county. On the other hand, some counties, including Butler, Highland, and Lawrence, will not proactively mail absentee ballot applications to all registered electors. The counties also differ in the way they handle return postage for the absentee ballot applications and ballots. The boards of elections of Cuyahoga and Madison counties plan to prepay the postage for the elector to return the absentee ballot application for the November 2, 2010 election; other county boards of elections will not prepay the postage to submit the application. As for the absentee ballot itself, some county boards of elections, including those in Cuyahoga and Franklin counties, plan to prepay the postage for the elector to return the absentee ballot to the director of the county board of elections for the November 2, 2010 election. Other counties, including Butler, Hamilton, Highland, and Montgomery, will require the elector to pay the postage to return the absentee ballot to the director. The Lawrence County Board of Elections will not prepay the postage, but if a ballot arrives with insufficient postage, the Lawrence County Board of Elections will pay the deficiency.

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Plaintiffs are residents and registered voters of counties (specifically Highland, Butler, Lawrence, and Clinton) that do not mail absentee ballot applications to all electors and do not prepay postage for the elector to submit the absentee ballot application or the ballot itself. Accordingly, each Plaintiff must request an application for an absentee ballot, pay the postage to submit the application, and pay the postage to return his or her absentee ballot to the director of the board of elections for their county. In contrast, electors in some counties need not request an absentee ballot application, electors in some counties need not pay postage to return the application, and electors in some counties need not pay postage to return the absentee ballots. Plaintiffs contend that Secretary Brunners failure to ensure that the same rules apply equally to electors in every county in the state violates the electors constitutional right to participate in the November 2, 2010 election on an equal basis, and that the election process is fundamentally unfair in violation of the Due Process Clause of the 14th Amendment. Defendant Brunner responds that the Constitution does not require absolute uniformity of all voting conditions and that Plaintiffs cannot prevail on their Equal Protection or Due Process claims. II. LEGAL STANDARD Rule 65 of the Federal Rules of Civil Procedure authorizes the Court to grant preliminary injunctive relief. A district court is to consider the following four factors when deciding to issue a preliminary injunction: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would otherwise suffer irreparable injury; (3) whether issuance of a preliminary injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of a preliminary injunction.

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Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000). These factors are to be balanced against one another and are not prerequisites to the grant of a preliminary injunction. Jones v. Caruso, 569 F.3d 258, 265 (6th Cir. 2009). The proof required for the plaintiff to obtain a preliminary injunction is much more stringent than the proof required to survive a summary judgment motion. Leary, 228 F.3d at 739. III. ANALYSIS A. Likelihood of Success on the Merits 1. Equal Protection

As a preliminary matter, to determine Plaintiffs likelihood of success on the merits, the Court must articulate the standard of review it will apply to the state action being challenged. Defendant asserts that because the challenged actions expand rather than infringe on voting rights, rational basis review applies. Plaintiffs do not argue otherwise. The Supreme Court has held that classifications which might invade or restrain voting rights must be closely scrutinized. McDonald v. Bd. of Election Commrs of Chicago, 394 U.S. 802, 807 (1969) (citing Harper v. Virginia Bd of Elections, 383 U.S. 663, 670 (1966)). However, when a statutory scheme does not impact ones ability to exercise the fundamental right to vote, such exacting review is unnecessary. Id.2 The plaintiffs in McDonald were unsentenced inmates awaiting trial in the Cook County jail who could not readily appear at the polls because they were charged with unbailable offenses or because they had been unable to post bail. Id. at 803. They could not obtain absentee ballots because they were not among the four classes of persons for whom the Illinois legislature had made absentee voting available. The Supreme Court found that Illinois statutory scheme did not require exacting judicial scrutiny because nothing in the record indicated that the scheme had an impact on the plaintiffs ability to exercise the fundamental right to vote. Id. at 807. It is . . . not the right to vote that is at stake here but a claimed right to receive absentee ballots. . . . [T]he absentee statutes, which are designed to make voting more available to some groups who cannot easily get to the polls, do not themselves deny appellants to exercise of the 5
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Plaintiffs here do not allege that Ohios failure to standardize the mailing of absentee ballot applications and the prepayment of postage on absentee ballot applications and ballots disenfranchises electors. Rather, they allege that the system is inconsistent, thereby depriving citizens of the right to participate equally in the election. Because Plaintiffs mount a challenge to county mechanisms for expanding, not restraining, the vote, the traditional standard for evaluating equal protection claims applies. The Court, therefore, will review the states actions using a rational basis standard. So long as Defendants failure to ensure uniformity regarding the mailing of the absentee ballot applications and ballots is rationally related to a legitimate state interest, it does not violate the Equal Protection Clause. [A] citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction. Dunn v. Blumstein, 405 U.S. 330, 336 (1972). As the Supreme Court recently stated, The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one persons vote over that of another. It must be remembered that the right of suffrage can be denied by a debasement or dilution of the weight of a citizens vote just as effectively as by wholly prohibiting the free exercise of the franchise. Bush v. Gore, 531 U.S. 98, 104-05 (2000) (internal citations and quotations omitted). More recently, the U.S. District Court for the Northern District of Ohio stated that [i]naction that diminishes the right to vote equally may be as actionable as direct and overt acts treating the

franchise. Id. at 807-08. Because the statute did not infringe upon the fundamental right to vote, the Court concluded that the traditional standard for evaluating equal protection claims applied, namely, that the distinctions drawn by the challenged statute had to bear some rational relationship to a legitimate state interest. Id. at 809. 6

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franchise unequally. League of Women Voters v. Blackwell, 432 F. Supp. 2d 723, 728 (N.D. Ohio 2005). Plaintiffs assert that, under these propositions of law, their constitutional rights are being violated by Ohios inconsistent system regarding voting by absentee ballot, even if Plaintiffs are not being disenfranchised. Plaintiffs are correct that citizens have a right to participate in elections on an equal basis. However, the points of law mentioned above must be examined in the context of the cases from which they emanate. Such examination illuminates where the marker lies between the circumstances of voting that must be uniform and those that do not, understanding that complete uniformity, while perhaps an ideal, is not required by the Equal Protection Clause. At issue in Dunn v. Blumstein, cited by Plaintiffs, was Tennessees durational residence requirement for voting. 405 U.S. 330 (1972). The law prohibited residents from registering to vote unless they had been residents of the state for a year. Id. at 334. The law divided residents into two classes, old residents and new residents, and completely deprived the latter of the opportunity to vote. Id. Thus, while the Court made the statement that citizens have a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction, the issue in that case was the right of a class of citizens to vote at all. Id. at 336.3 In this case, no class of citizens is being deprived of the right to vote. At issue in Bush v. Gore was whether manual recounts of votes cast in the 2000 election in some but not all Florida counties, applying different standards to determine voter intent, violated equal protection. 531 U.S. 98 (2000). What concerned the majority in that case was the absence of any standards governing what constituted a legal vote. Id. at 102. The lack of rules The Court in Dunn also reiterated that the equal right to vote . . . is not absolute; the States have the power . . . to regulate access to the franchise in other ways. Id. at 336. 7
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for determining the intent of the voter led to the unequal evaluation of ballots cast; specifically, a dimpled chad in one county might constitute a vote in one county but not another. Id. at 10607. The present case does not involve the substantive question of what constitutes a vote. Rather, it involves whether local entities, in the exercise of their expertise, may have different systems for implementing elections. In League of Women Voters of Ohio, the Sixth Circuit considered whether the plaintiff had adequately stated an equal protection claim based on the allegations that Ohios election system provided different voting rights to different citizens based on where they happened to reside. 548 F.3d 463 (6th Cir. 2008). The court summarized the allegations as follows: Voters were forced to wait from two to twelve hours to vote because of inadequate allocation of voting machines. Voting machines were not allocated proportionately to the voting population, causing more severe wait times in some counties than in others. At least one polling place, voting was not completed until 4:00 a.m. on the day following election day. Long wait times caused some voters to leave their polling places without voting in order to attend school, work, or to family responsibilities or because a physical disability prevented them from standing in line. Poll workers received inadequate training, causing them to provide incorrect instructions and leading to the discounting of votes. In some counties, poll workers misdirected voters to the wrong polling place, forcing them to attempt to vote multiple times and delaying them by up to six hours. Provisional balloting was not utilized properly, causing 22% of provisional ballots cast to be discounted, with the percentage of ballots discounted reaching 39.5% in one county. Disabled voters who required assistance were turned away. White alleges that the touchscreen voting machine jumped from her preferred candidate to another candidate, possibly causing her vote to be counted for the wrong candidate. Id. at 477-78. The court concluded that, [i]f true, these allegations could establish that Ohios voting system deprives its citizens of the right to vote or severely burdens the exercise of that right depending on where they live in violation of the Equal Protection Clause. Id. 8

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The issue in League of Women Voters of Ohio was not whether the state was obligated to make all facets of the voting process identical in all counties. Rather, as in Bush, the issue was whether the states non-uniform standards, processes, and rules with respect to voting deprived citizens of the right to vote or severely burdened the exercise of that right. In this case, Plaintiffs assert that the lack of uniformity among Ohio counties approaches to mailing and prepaying postage on absent voter ballot applications and ballots creates a burden on voters living in certain counties. Specifically, Plaintiffs state that [b]ecause Plaintiffs reside in counties where they will not receive an application automatically in the mail, and where they must pay for the postage to both submit their application and return their ballot, they are subject to burdens a resident of Franklin or Cuyahoga counties, for example, are not. (Doc. 3 at 13.) This characterization of the issue is unapt. The issue here is not one of burden; it is of relative ease. Unlike in League of Women Voters and Bush, Plaintiffs in this case do not claim that their votes, once cast, will not be counted or that they will wholly be denied the opportunity to vote. Importantly, Plaintiffs do not even allege a deprivation of the right to vote by absentee ballot. Rather, they claim they will be inconvenienced by having to affirmatively request an absentee ballot application and put stamps on the envelopes to return the application and the ballot. Absent voter statutes, as do all early voting schemes, expand the franchise: the absentee statutes, which are designed to make voting more available, . . . do not themselves deny appellants the exercise of the franchise. McDonald v. Bd. of Election Commrs of Chicago, 394 U.S. 802, 807-8 (1969) (affirming the provision of absentee ballots to some groups but not others). In Gustafson v. Illinois State Board of Elections, No. 06 C 1159, 2007 WL 2892667 (N.D. Ill. Sept. 30, 2007), the District Court entertained a challenge to the manner of

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implementing early voting. The court rejected the plaintiffs claim that the states failure to bolster Illinois early voting law with universal standards ensuring consistent application was unconstitutional. The law required early voting to be done in person. Id. at *1. Most counties conducted early voting at one location, but other counties allowed for early voting at multiple sites. Id. Not all early voting sites within or across counties were open the exact same hours. Id. One county, in addition to having at least fifteen stationary sites, operated a votemobile. Id. The plaintiff claimed that these wide variations of early voting availability resulted in greater access to the polls for some voters, thus violating the equal protection rights of others. Id. at *5. The court rejected this argument, noting that the obvious purpose of the law was to expand the available voting mechanisms for all Illinois voters. Id. at *6. The law contains bare minimums that, if followed, will provide all Illinois voters with a new right to vote early; that it allows for district-to-district variation above and beyond those minimum standards is irrelevant to the fact that the language of the law gives each voter the ability to vote early, regardless of status. Id. The Court finds that this argument likewise applies to the facts of this case. Plaintiffs, like all Ohio voters, have a right to vote by absentee ballot. They have not shown, at least at this stage of the litigation, that the relative inconvenience of having to request an absentee ballot application and pay postage to return the application and ballot rises to the level of a deprivation of the right to participate in elections on an equal basis. Not every difference amounts to a constitutional injury. If some county boards of elections choose to erect tents outside polling places to protect voters from the rain, must all boards of election be required to do so? Defendant Brunner states that it is reasonable to allow the counties to handle the distribution of absentee ballots differently because the needs and abilities of the counties differ.

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Large, urban counties have an interest in reducing congestion and long lines at polling places on November 2, and they have the financial resources to pay the postage for voters to mail in their ballots. Additionally, increased use of early ballots minimizes wear and tear on expensive voting machines and tends to result in fewer provisional ballots than in-person voting. Smaller counties, on the other hand, may either lack the money to pay postage, or simply deem it an unwise expenditure because long lines have not historically been a problem in those counties. Based on all these factors, the Court finds it unlikely that Plaintiffs can demonstrate that Defendants failure to require uniformity in the matters presented herein is not rationally related to a legitimate state interest namely, allowing the county boards of elections to implement early voting by absentee ballot in a way that addresses issues unique to their counties. Plaintiffs have failed to demonstrate a likelihood of success on the merits of their equal protection claim. 2. Substantive Due Process

Plaintiffs allege that, in addition to violating the Equal Protection Clause of the 14th Amendment, Ohios system of voting by absent voters ballot also violates the Due Process Clause of the 14th Amendment. The Due Process Clause is implicated in the exceptional case where a states voting system is fundamentally unfair. League of Women Voters, 548 F.3d at 478 (citing Griffin v. Burns, 570 F.2d 1065, 1078-79 (1st Cir. 1971)). [D]ue process is implicated where the entire election process including as part thereof the states administrative and judicial corrective process fails on its face to afford fundamental fairness. Warf v. Bd. of Elections of Green Cnty., No. 09-5265, 2010 WL 349500 (6th Cir. Sept. 1, 2010) (quoting Griffin, 570 F.2d at 1078). Such an exceptional case may arise, for example, if a state employs

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non-uniform rules, standards and procedures, that result in significant disenfranchisement and vote dilution. Id. (citing League of Women Voters, 548 F.3d at 1078). Plaintiffs assert that this an exceptional case because the number of Ohio electors voting by absent voters ballot has increased exponentially, and absent voters ballots have a significant impact on the outcome of Ohio elections. Plaintiffs state that it is logical to assume that counties that mail applications to all electors, that prepay the postage to submit the applications, and that prepay the postage for return of those ballots will have a higher voter turnout during that election than counties that do not. (Doc. 3 at 15.) Thus, argue Plaintiffs, Ohios unequal and inconsistent system related to absent voters ballots is fundamentally unfair because it is likely to skew voting by electors in Ohios cities versus those in its rural areas. (Id.) Defendant responds that this is hardly the exceptional case. Defendant argues that the Due Process Clause is not implicated here because Plaintiffs do not allege that the entire election process is fundamentally unfair, and the inconsistencies at issue here do not compromise the validity of the ballots cast. As with the Equal Protection analysis, it is useful to examine those cases in which courts have found that a voting system is fundamentally unfair. In League of Women Voters, the Sixth Circuit found that, if true, the plaintiffs allegations could support a finding that the system was so devoid of standards and procedures as to violate substantive due process. 548 F.3d at 478. The League had supported its assertions with specific factual allegations. For example, registered voters were denied the right to vote because their names were missing from the rolls; inadequate provision of voting machines caused 10,000 Columbus voters not to vote; and poll

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workers improperly refused assistance to disabled voters. Id. Plaintiffs in this case provide no such factual support for their allegation that the system currently in place deprives voters of their right to vote on an equal basis. In Ury v. Santee 303 F. Supp. 119 (N.D. Ill. 1969), the court found that a voting system that failed to provide adequate voting facilities constituted a due process violation. In that case, [t]wo months before the scheduled town election, the incumbent trustees quietly proposed and passed an ordinance reducing the number of voting precincts from 32 to 6. When election day arrived, these precincts turned out to be entirely inadequate to the number of electors wishing to vote. Traffic jams ensued, people waited hours to reach the polls, some were forced to vote outside of voting booths, people in populous precincts could not vote, and other problems arose. Though the precise number of voters turned away was incapable of calculation, the federal court invalidated the entire confused election, holding that due process and equal protection deprivations had been made out by the plaintiff class of all registered voters in Wilmette in that hundreds of voters were effectively deprived of their right to vote and that voters in populous districts were discriminated against, with the effect either of changing the election results or rendering the results doubtful. Griffin, 570 F.2d at 1077-78. Plaintiffs here do not present facts of this ilk. Simply put, the circumstances present in the instant case, particularly in comparison to League of Women Voters and Ury, do not rise to the level of fundamental unfairness. Furthermore, Plaintiffs argument that the system in place dilutes the vote in rural counties is not supported. While Plaintiffs assert that it is logical to assume that counties that mail applications to all electors and that prepay return postage will have a higher voter turnout, assumptions are not sufficient to demonstrate a likelihood of success on the merits. As Defendant explains, there are reasons other than increasing voter participation for sending out absentee ballot applications. More populous counties, for example, may do so to lessen

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congestion at polling places and reduce wear and tear on expensive voting machines. There is no evidence in the record that an elector is any more or less likely to vote if the absent voter ballot application arrives in his mailbox unsolicited or if the return postage is prepaid. For these reasons, Plaintiffs have failed to demonstrate a likelihood of success on the merits of their due process claim. B. Likelihood of Irreparable Harm

Plaintiffs state that, [b]ecause the actions complained of . . . threaten or impair Plaintiffs constitutional right to vote, Plaintiffs will suffer irreparable injury if the temporary restraining order and preliminary injunction do not issue. (Doc. 3 at 16.) Plaintiffs present no evidence to demonstrate any such injury. Whereas Plaintiffs state that they must vote by absent voters ballot for one reason or another, none assert that they are unable to request an absent voter application or that they are incapable of paying the postage to return the application and ballot to the director of the board of elections in the county in which they reside. As for a claim of vote dilution, a showing of irreparable harm would require evidence that the total vote in those counties prepaying return postage was in excess of what would have occurred in the absence of prepaid postage, or that a certain number of voters were unable to vote as a result of not receiving postage prepaid applications in the mail. Plaintiffs have put forth no such evidence. Plaintiffs failure to establish that they are likely to suffer irreparable harm in the absence of preliminary relief makes the extraordinary relief of an injunction improper. Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365, 374 (2008). C. The Public Interest and Harm to Third Parties

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Plaintiffs state that no harm will be caused by requiring Secretary Brunner to issue directives that will ensure uniformity regarding the mailing of absentee ballot applications and the prepayment of postage on applications and ballots. Also, they state that the public has an interest in ensuring that elections are conducted so that each elector participates in elections on an equal basis. Defendant Brunner responds that the remedy Plaintiffs seek would cause enormous hardship throughout the state. By way of example, Defendant notes that Franklin County has already mailed out applications to all its qualified electors, but Athens County will not mail out applications to all electors. A directive requiring all counties to do as Athens County does, not mail out applications, would require Franklin County to void out all the applications it has already sent, as well as the signed applications that have already been returned to the board of elections. On the other hand, requiring all counties to mail applications to all qualified electors would create a financial strain on many boards of elections. For example, the Belmont County Board of Elections has to choose between sending out applications or ensuring sufficient staffing for early voting and Election Day poll operations. (Doc. 8 at 14.) Plaintiffs state in their reply that the Court could rectify this situation by issuing an injunction that directs Secretary Brunner to ensure consistency in the mailing of applications for all future elections. As for the ballots themselves, Plaintiffs posit that it will not create a burden on any county if the Secretary directs that none of the counties can prepay the return postage. Plaintiffs then make the following statement: Secretary Brunner complains that such a directive would make the poorest or least innovative county the standard to which every county must conform. That is exactly, however, what the Constitution requires. (Doc. 9 at 10.)

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The Court disagrees. The Constitution forbids the State, by arbitrary and disparate treatment, to value one persons vote over that of another. Bush, 531 U.S. at 104-05. The Constitution does not require the State to guarantee complete uniformity in the process of facilitating early voting by absentee ballot, and it certainly does not require the State to apply the least innovative standard to the process. The Court therefore finds that it is in the best interests of the public to deny Plaintiffs requested relief, at least at this preliminary stage of the litigation. IV. CONCLUSION The factors to consider in granting a temporary restraining order weigh in Defendants favor. Accordingly, this Court DENIES Plaintiffs motion for a temporary restraining order and a preliminary injunction (doc. 3). IT IS SO ORDERED.

___s/Susan J. Dlott___________ Chief Judge Susan J. Dlott United States District Court

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