Making Sure "Innocent Until Proven Guilty" Includes the Right to Vote

Three attorneys stand on courthouse steps
Right to left: Mark Gaber, Jonathan Diaz from CLC, Naila Awan from Demos

Every Election Day, thousands of eligible voters who are arrested the weekend before the election and cannot make bail are disenfranchised because their arrest comes after the absentee ballot application deadline, and states offer them no physical way to vote in the election.

This year, I spent the Monday of Election 2018 on the ground in Dayton, Ohio working to identify registered voters in this circumstance to help them exercise their right to vote.

Unlike most of the cases I work on at CLC we were not able to sit down with the plaintiffs weeks or even days before finalizing the complaint. Along with our co-counsel from Demos, we were able to gain access to the county jail in Dayton on Monday evening and interview two individuals who wanted to be class action plaintiffs in our lawsuit – less than 24 hours before the polls would close on Tuesday.

After hearing their stories, we worked through the night Monday into Tuesday morning finalizing the complaint, a brief explaining why the court should grant emergency relief on Election Day, and a brief asking the court to certify the case as a class action lawsuit. Not quite finished, I edited all the documents from the passenger seat of a rental car as we drove from Dayton to Columbus—the location of the federal court where we would file suit.

Still in my office for the day (the rental car) I electronically filed the documents, one by one from a parking deck near the courthouse. I had not finished filing the documents when a call came in from Judge’s chambers: the judge had seen our emergency complaint and wanted us to appear for an emergency hearing. 

Two hours later, after a quick stop to buy some pens, notepads, and post-its—the keys to courtroom success—I was standing at the podium arguing for our plaintiffs’ right to vote. After strenuous objections from counsel for the Ohio about the burden of ensuring these eligible voters could vote, the judge ruled in our favor—ordering that emergency absentee ballots be delivered to our clients in jail and their votes counted.

Arguing for the right to vote on Election Day in federal court was an invigorating experience—worth the all nighters—and now our case will proceed to final judgment so all eligible Ohio voters can vote in future elections.

Mark is CLC's Senior Director, Redistricting.