NOT RECOMMENDED FOR FULL-TEXT PUBLICATIONS

No. 08-4439

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Derek Hamilton, et al.,
Plaintiff-Appellants,

v.

Ashland County Board of Elections, et al.,

Defendants-Appellees.

VVVVVVVVVV

ORDER

FILED
Nov o-szooa

LEONARD GREEN. cm

NOT RECOMMENDED FOR FULL-
PUBLICATION m

BEFORE: GIBBONS and COOK, Circuit Judges; STEEH, District J udge.‘

Before the court is plaintiffs-appellants’ emergency motion for delivery of provisional ballots and

to expedite the appeal so that a determination of the merits can be made within ten days, a period provided

under Ohio law within which a voter may take further steps to have his provisional ballot counted.

Defendants-appellees have responded to the motion.

The court has carefully considered the district court record and the ﬁlings of the parties in this court

and denies the requested relief. While a review of Ohio statutes relating to provisional ballots reveals that

they are permitted in a variety of circumstances, none of the statutes contemplates their use in a situation

where election ofﬁcials deliver them to persons who have been denied absentee ballots. Consequently,

plaintiffs have failed to establish a likelihood of success on the issue of their entitlement to the relief sought.

‘The Honorable George Caram Steeh, United States District Judge for the Eastern District

of Michigan, sitting by designation.

With respect to the request to expedite the appeal, the court concludes that the federal constitutional
issues can be resolved on the basis of the record and brieﬁng in the district court. The district court’s rulings
with respect to the due process, equal protection, and First Amendment claims are afﬁrmed for the reasons
stated in its Memorandum Opinion and Order of October 31, 2008.

The remaining issue is the state law issue involving the proper interpretation of O.R.C. § 3503.04.
While plaintiffs may have a viable argument with respect to this issue, we decline to exercise supplemental
jurisdiction over this state law claim and for this reason make no ﬁnding as to the likelihood of success on
this issue. Ordinarily, the resolution of a state law claim by the district court might argue for the retention
of jurisdiction by the appellate court. Here, however, timing strongly suggests that a more efﬁcient
resolution of the litigation may be achieved by allowing plaintiffs to pursue their state law claim in state
court. Our denial of the relief of delivery of provisional ballots means that, even if we were to resolve the
state claim in plaintiffs’ favor eventually, plaintiffs would have no opportunity to vote in this election. Our
dismissal of the state claim without prejudice will allow plaintiffs to pursue this claim in state court
tomorrow, at a time when a state court could in fact, if it chose, grant plaintiffs the relief they seek or perhaps
other relief, if its conclusions about delivery of provisional ballots differ from ours. And dismissal will
permit the state courts to interpret the state election statutes with respect to residency, a task more
appropriately undertaken by the state courts than by federal courts.

The district court’s dismissal of the state claim on the merits is vacated, and the state claim is

dismissed without prejudice. The district court’s judgment on the federal claims is afﬁrmed.

    
  

ENTERED BY ORDER THE COURT

 

Leonard G een, Clerk

