## Facts

- Ohio generally counts provisional ballots only if cast in the voter’s correct precinct and polling place.
- Many Ohio counties use multi-precinct polling places, creating a recurring risk that poll-worker error can lead voters to cast a ballot for the wrong precinct within the correct polling location.
- A prior federal injunction (in related litigation) required Ohio to count “right-place/wrong-precinct” provisional ballots when poll-worker error caused the mistake.
- This case involved a different category: provisional ballots cast in the wrong polling place and wrong precinct (“wrong-place/wrong-precinct”), allegedly due to poll-worker misdirection or state-created confusion.
- The district court issued a preliminary injunction shortly before the November 2012 election requiring Ohio to count wrong-place/wrong-precinct provisional ballots when poll-worker error caused the deficiencies.
- Ohio and the Secretary of State appealed and sought an emergency stay pending appeal; the Sixth Circuit decision addressed only the stay request, not final merits.

## Issues

1. Whether the State satisfied the four-factor test for a stay pending appeal of a preliminary injunction requiring the counting of wrong-place/wrong-precinct provisional ballots allegedly affected by poll-worker error.
2. Whether extending relief from right-place/wrong-precinct ballots to wrong-place/wrong-precinct ballots was likely constitutionally required, given Ohio’s notice provisions and the voter’s responsibility to identify the correct polling place.
3. Whether late-stage changes to ballot-counting rules posed sufficient risks to election administration and the public interest to warrant a stay.

## Decision

- The Sixth Circuit granted the State’s motion for a stay pending appeal.
- The stay suspended the preliminary injunction insofar as it required counting wrong-place/wrong-precinct provisional ballots for the November 2012 election.
- The court reasoned that wrong-place/wrong-precinct ballots materially differed from right-place/wrong-precinct ballots because voters are less dependent on poll workers to identify the correct polling place than to identify the correct precinct within a multi-precinct location.
- The court found plaintiffs had not shown a strong likelihood of success on the merits, citing accessible polling-place information, statutory notice mechanisms, and limited evidence of poll-worker misdirection to the wrong location.
- The court credited the State’s interests in maintaining a precinct-based system and avoiding last-minute operational changes likely to confuse voters and poll workers.

## Legal Principles

- A stay pending appeal is assessed under four interrelated factors: (1) likelihood of success on the merits, (2) irreparable harm to the movant without a stay, (3) substantial harm to others from a stay, and (4) the public interest.
- The stay factors are not rigid prerequisites; they are balanced as interrelated considerations.
- In election cases, courts may weigh heavily the public interest in stability and orderly election administration when requested relief would change rules close to an election.
- Constitutional analysis of ballot-counting rules may differ based on the voter’s relative ability and responsibility to comply with location and precinct requirements, and on the degree of state-created burden.

## Conclusion

The Sixth Circuit stayed a preliminary injunction that would have required Ohio to count wrong-place/wrong-precinct provisional ballots attributed to poll-worker error, holding that plaintiffs had not shown a strong likelihood of success and that the balance of harms and the public interest favored preserving existing election procedures immediately before the election.


Serv. Emps. Int'l Union Loc. 1 v. Husted, 698 F.3d 341 (6th Cir. 2012)