In 1974, the U.S. Supreme Court in O’Brien v. Skinner, held that pretrial detainees must be permitted to vote an absentee ballot like other eligible voters are unable to appear in person to vote. Ohio law, however, denies many pre-trial detainees access to an absentee ballot.
In Ohio, eligible voters who are arrested after the absentee ballot request deadline and detained through Election Day are prevented from exercising their fundamental right to vote. Each election, state law prevents thousands of registered Ohio voters who are detained after close of business the Friday before the election from requesting and receiving an absentee ballot in jail. However, individuals who are unable to vote in person due to an unforeseen hospitalization are permitted to request, receive, and cast a ballot in the days immediately preceding an election.
Tommy Ray Mays II and Quinton Nelson Sr., two registered Ohio voters who had been planning to vote in the November 2018 General Election, were arrested on misdemeanor charges after the absentee ballot cut-off deadline for the November 2018 General Election and were not going to be released until after Election Day. Mr. Mays and Mr. Nelson brought a class action lawsuit on Election Day alleging that Ohio's practice of denying late-jailed voters access to the ballot violates the First and Fourteenth Amendments of the U.S. Constitution.
The U.S. District Court in the Southern District of Ohio issued a temporary restraining order on Election Day, November 6, 2018, ordering that the Mr. Mays and Mr. Nelson be delivered absentee ballots in jail and be permitted to vote.
On November 6, 2019, U.S. District Court Judge Michael Watson granted summary judgment and class certification to Plaintiffs Mays, Nelson, and other late-jailed voters of Ohio finding that “hospitalized persons are not more worthy of additional voting privileges under our Constitution than jail-confined persons, and offering greater access to the ballot simply because the legislature values the former’s votes over the latter’s is exactly what the Equal Protection clause forbids.” The U.S. District Court’s order prohibits the Secretary of State of Ohio from imposing different deadlines for the delivery of absentee ballot applications to late-jailed voters and hospitalized voters. The Ohio Secretary of State announced that he was appealing the District Court's opinion on November 11, 2019, and filed a motion to stay the District Court's decision until the Sixth Circuit Court of Appeals has an opportunity to weigh in on the case.
Tommy Ray Mays II, Quinton Nelson Sr.
Campaign Legal Center, MacArthur Justice Center