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Judicial Watch • OH Randolph v Husted Opinion 00303

OH Randolph v Husted Opinion 00303

OH Randolph v Husted Opinion 00303

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Case: 2:16-cv-00303-GCS-EPD Doc Filed: 06/29/16 Page: PAGEID 23003
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OHIO
EASTERN DIVISION
OHIO PHILLIP RANDOLPH
INSTITUTE, al.,
Plaintiffs,
Case No. 2:16-cv-303
JUDGE SMITH
Magistrate Judge Deavers
JON HUSTED,
OHIO SECRETARY STATE
Defendant.
ORDER
This matter before the Court Plaintiffs Motion for Summary Judgment and
Permanent Injunction, or, the alternative, Preliminary Injunction (Doc. 39), and the parties
cross-merits briefing1 (Docs. 38, 49, 52, 56, and 57); well the Amicus Curiae Briefs filed
the Public Interest Legal Foundation (Doc. 60) and Judicial Watch, Inc. (Doc. 61).2 The parties
agree that all the necessary facts and legal arguments have been presented the Court and this
action ripe for adjudication. After careful review the parties arguments, the Court finds
The parties initially agreed during scheduling conference before Magistrate Judge Deavers that there
were factual issues tried and that this case could resolved cross-merits briefing. (See Doc.
25, Tr. Conf.). There was some confusion the parties what label the merits briefing and
Plaintiffs therefore titled their initial brief Motion for Summary Judgment and Permanent Injunction,
or, the alternative Motion for Preliminary Injunction. Despite the earlier discussions and request for expedited resolution the case, Plaintiffs now request that their current motion denied, that the
case should set for trial. (Doc. 57, Pls. Reply, However, this Court disagrees and believes that
there are genuine issues material fact, Plaintiffs respectfully request expeditious trial resolve any
genuine issues material fact, and entry preliminary injunction the interim period. )). The Court
agrees with the parties initial assessment this case that the issues are purely legal and can resolved the briefs. Therefore, expedite this matter requested both parties and because all issues have
been fully briefed, the Court will rule the permanent injunction and enter final judgment.
Both Amicus Curiae briefs support Defendant position this case.
Case: 2:16-cv-00303-GCS-EPD Doc Filed: 06/29/16 Page: PAGEID 23004
favor Defendant and DENIES Plaintiffs Motion for Summary Judgment and Permanent
Injunction, or, the alternative, Preliminary Injunction.
BACKGROUND
Plaintiffs Ohio Philip Randolph Institute Randolph Institute and the Northeast
Ohio Coalition for the Homeless NEOCH initiated this case seeking injunctive relief
prevent future removal registered voters from the voter registration rolls pursuant to, inter
alia, Ohio Secretary State Directive 2015-15. Plaintiff Randolph Institute state chapter
the Philip Randolph Institute, national organization for African-American trade unionists
and community activists that was established 1965 forge alliance between the civil rights
and labor movements. Randolph Institute senior constituency group the American Federal the Labor and Congress Industrial Organizations AFL-CIO Randolph Institute devotes
most its time and resources voter education, registration, and outreach efforts. (Doc. 37,
Am. Compl., 12). Plaintiff NEOCH nonprofit charitable organization who helps homeless
and at-risk men, women, and children the city Cleveland ensuring they have access
services, health screenings, legal assistance, and ensuring that every homeless person provided
the opportunity vote and participate the democratic process. (Id. 15).
Plaintiff Larry Harmon year-old U.S. Navy veteran who has resided the same
address Portage County, Ohio for approximately years. Mr. Harmon voted the 2004 and
2008 Presidential elections, but did not vote, engage any voter activity, from 2009 through
2015. November 2015, Mr. Harmon went the polls Election Day vote, but was told
that his name did not appear the poll book. fact, Mr. Harmon had been removed from the
Portage County voter registration rolls pursuant Ohio current practices and procedures for
maintaining accurate voter rolls. The propriety these practices and procedures serve the
Case: 2:16-cv-00303-GCS-EPD Doc Filed: 06/29/16 Page: PAGEID 23005
focal point this litigation. Mr. Harmon does not recall receiving confirmation notice
confirm his voter registration.
Defendant Ohio Secretary State, Jon Husted Secretary Husted Ohio chief
election officer and charged with management voter registration and election administration
throughout the state. See Ohio Rev. Code 3501.04. Ohio law requires the Secretary State
adopt [a] process for the removal voters who have changed residence, which required
use information from the U.S. Postal Service National Change Address program (the Ohio
NCOA Process Ohio Rev. Code 3501.05(Q); 3503.21. addition the Ohio NCOA
Process, Ohio also uses supplemental process combat voter roll inaccuracies brought about the frequent occurrence voters changing addresses without notifying the United States
Postal Service (the Ohio Supplemental Process Once voter identified under either
process, confirmation notice sent the voter. voter failure respond the
confirmation notice can ultimately lead their registration being cancelled. The difference
between the two processes how voter identified receive confirmation notice. Under
the Ohio NCOA Process, the United States Postal Service program indicates that voter has
forwarding address file. Under the Ohio Supplemental Process, voter notified following
two-year period non-voting. Here, Plaintiffs challenge the Ohio Supplemental Process
violation the National Voter Registration Act NVRA U.S.C. 20501 seq. Section the NVRA establishes the requirements that states must follow maintain their respective
voter registration rolls. U.S.C. 20507.
History Ohio Voter Registration Roll Maintenance
Prior the enactment the NVRA, Ohio updated its voter registration roll pursuant
Article the Ohio Constitution, which stated part, [a]ny elector who fails vote
least one election during any period four consecutive years shall cease elector unless
Case: 2:16-cv-00303-GCS-EPD Doc Filed: 06/29/16 Page: PAGEID 23006 again registers vote. Ohio Const. art. 1.1. 1993, Congress passed the NVRA
establish procedures that will increase the number eligible citizens who register vote
elections for Federal office while ensur[ing] that accurate and current voter registration rolls
are maintained. U.S.C. 20501(b)(1), (4). Among other requirements, the NVRA requires
states make reasonable effort remove the names ineligible voters from the official lists eligible voters reason change the residence the registrant[.] U.S.C.
20507(a)(4)(B).
Following the enactment the NVRA, the 120th Ohio General Assembly passed
Amended Substitute Senate Bill No. 300 (effective January 1995) and eliminated the statutory
language that required boards election cancel voters solely because their inactivity.
Since 1994, Ohio has used two different processes make reasonable effort maintain the
accuracy its voter registration rolls. Ohio implemented its current procedures comply with
and mirror the procedures established the NVRA. The December 1994 Directive from
Ohio Secretary State outlining Ohio new voter registration maintenance procedures began
with the following:
This Directive prescribes programs and procedures identify and cancel the
voter registrations ineligible persons accordance with Am. Sub. S.B. 300,
effective January 1995 and the National Voter Registration Act 1993
(NVRA). Am. Sub. S.B. 300 enacts new revised code sections 3503.19 and
3503.21, and amends current revised code sections 3501.01, 3501.05, 3501.11,
3503.18, and 3503.24 relating the cancellation ineligible voters. goal adopting these programs and procedures provide all boards
elections with workable, cost effective methods remove ineligible persons from
the voter registration rolls accordance with the new requirements state and
federal law.
(Doc. 38-1, Ohio Secretary State Directive 94-36).
Case: 2:16-cv-00303-GCS-EPD Doc Filed: 06/29/16 Page: PAGEID 23007
Ohio Voter Registration Roll Maintenance Procedures
Ohio currently utilizes two procedures maintain the accuracy its voter registration
rolls: the Ohio NCOA Process and the Ohio Supplemental Process.
See Ohio Rev. Code
3503.21.
Ohio NCOA Process
The Ohio NCOA Process conducted annual basis. Under the Ohio NCOA
Process, the Secretary State Office compares the records the Statewide Voter
Registration Database SWVRD the NCOA database. (Doc. 38-2, Damschroder Decl.,
11).
The NCOA database contains names and addresses individuals who have filed
changes address with the United States Postal Service USPS (Id.). During the Ohio
NCOA Process, the Secretary provides the boards with file listing the possible voter matches the NCOA file. (Id.). The boards elections compare the county file the NCOA file and
then send confirmation notice (Form 10-S) each elector identified. (Id. 11, 17). The
confirmation notice postage pre-paid forwardable form that voter can return indicate
whether the voter still resides the same location. (Id.). December 2013, amendment the General Assembly Senate Bill 200 required
the Ohio Secretary State conduct the Ohio NCOA Process annual, rather than
biennial, basis. that time, the Secretary also moved the corresponding Ohio Supplemental
Process annual basis. (Id. 9).3
Pursuant the Ohio NCOA Process, individual voter registration cancelled when she: (1) appears the list individuals who have filed change address with the
The Secretary State maintains that Ohio also obligated perform both processes annual
basis pursuant Settlement Agreement that ended prior litigation. See Judicial Watch Husted, Case
No.: 12-cv-792 (Sargus, J.) (hereinafter, the Judicial Watch case). copy the Settlement Agreement
was filed Doc. 38-4, Exhibit Defendant Initial Brief.
Case: 2:16-cv-00303-GCS-EPD Doc Filed: 06/29/16 Page: PAGEID 23008
USPS and different address appears for that individual the SWVRD; (2) fails respond
the confirmation notice sent forwardable mail with pre-paid return form; and (3) then fails engage any voter activity for period four consecutive years, including two federal
general elections (one being presidential general election) from the date that the confirmation
card mailed. (Id. 21).
Ohio Supplemental Process
The Ohio Supplemental Process begins after the Ohio NCOA Process completed and
seeks identify electors whose lack voter activity indicates they may have moved, even
though their names did not appear the NCOA generated list. (Doc. 38-7, Ex. Def. 1st.
Br., Ohio Secretary State Directive 2009-05; see also Doc. 38-2, Damschroder Decl., 14). part the Ohio Supplemental Process, BOEs use data points (e.g., voting history)
compile the data for the supplemental process. (Doc. 38-2, Damschroder Decl., 14). the
Ohio Supplemental Process, each individual board elections compiles its own list
individuals who, according the board records, have not engaged any voter activity for two
years.4 (Id. 15). The boards elections send each such individual identified confirmation
notice forwardable mail with postage pre-paid return envelope. (Id.). individual who
receives confirmation notice and needs update his her address may using the State
online change address system. (Id. 19). Secretary Husted implemented this online change address system 2012. (Id.). individual receiving confirmation notice may also return
the postage pre-paid form free cost through the mail. the individual returns the
Voter activity includes: voter completing the confirmation card and returning it; filing
change address either through BMV one the other designated agencies; filing voter
registration card with the board elections; casting absentee ballot; casting provisional
ballot; voting election day. (Doc. 42-1, Damschroder Dep. 66:19-67:5). Boards also have discretion consider whether signing candidate, issue, local option petition viewed voter activity. (Id.
70:17-20; 130:9-14).
Case: 2:16-cv-00303-GCS-EPD Doc Filed: 06/29/16 Page: PAGEID 23009
confirmation notice and provides new address, the individual registration record updated the appropriate board elections with the new address. (Id. 20). the individual returns
the confirmation notice confirming that his her current address still accurate, the board notes the individual registration record that the confirmation notice was returned the board and
the address was confirmed. (Id.). individual fails return the confirmation notice, fails update his her voter
registration, and fails engage any other voter activity, the individual will marked
inactive the registration database. (Id.). This inactive individual has all the rights
otherwise qualified elector, including the ability cast regular ballot any election. (Id.). If,
however, four years (including two federal general elections) passes without voter activity,
that time the individual voter registration record cancelled. (Id.).
Plaintiffs allege that thousands Ohio voters, like Plaintiff Mr. Harmon, have been
removed from the voter registration rolls pursuant the Ohio Supplemental Process. Plaintiffs
assert that [i]n Cuyahoga, Greene, Hamilton, and Medina Counties, for example, nearly 70,000
voters were purged 2015 pursuant the [Ohio] Supplemental Process, with indication that
any them had actually moved. (Doc. 37, Am. Compl., 46). Plaintiffs state that the [Ohio]
Supplemental Process disproportionately burdens Ohio most vulnerable and marginalized
citizens. Cuyahoga County, for example, the purged voters disproportionately reside
communities color and low-income communities. (Id. 48). December 17, 2015, Plaintiff Randolph Institute, through its counsel, sent certified
letter and email Defendant Husted, notifying him that the State Ohio was not meeting its
obligations under Section the NVRA. February 23, 2016, Plaintiff NEOCH, through its
counsel, notified Defendant Husted the alleged violations and both letters provided notice
Case: 2:16-cv-00303-GCS-EPD Doc Filed: 06/29/16 Page: PAGEID 23010
their intent sue for violations Section the NVRA. Plaintiffs then initiated this case
April 2016.
II.
STANDARD REVIEW
Plaintiffs initially filed this case and immediately moved for Temporary Restraining
Order and Preliminary Injunction, and they are now seeking permanent injunction.
The
standard for granting permanent injunction essentially the same the standard for
preliminary injunction. United States Miami Univ., Supp. 1132, 1147 (S.D. Ohio
2000) (Smith, J.). However, when plaintiff seeks permanent injunction, the plaintiff must
show actual success the merits, rather than mere likelihood success the merits. Id.,
(citing Amoco Prod. Co. Vill. Gambell, AK, 480 U.S. 531, 546, (1987)). the Sixth
Circuit, well-settled that the following factors are considered determining whether
injunctive relief necessary:
(1) Whether the movant has shown strong substantial likelihood
probability success the merits; (2) whether the movant has shown
irreparable injury; (3) whether the issuance preliminary [permanent]
injunction would cause substantial harm others; and (4) whether the public
interest would served granting injunctive relief.
Leary Daeschner, 228 F.3d 729, 736 (6th Cir. 2000) (citing McPherson Mich. High Sch.
Athletic Ass 119 F.3d 453, 459 (6th Cir. 1997) (en banc)). These four considerations are not
required elements conjunctive test, but are rather factors balanced. Mich. Bell Tel. Co. Engler, 257 F.3d 587, 592 (6th Cir. 2001) (finding that single factor determinative).
The decision whether not issue injunctive relief falls within the sound discretion
the district court. See Friendship Materials, Inc. Mich. Brick, Inc., 679 F.2d 100, 102 (6th Cir.
1982). permanent injunction shall only ordered upon showing (1) that [plaintiff] has
suffered irreparable injury; (2) there adequate remedy law; (3) that, considering the
Case: 2:16-cv-00303-GCS-EPD Doc Filed: 06/29/16 Page: PAGEID 23011
balance hardships between the plaintiff and defendant, remedy equity warranted; and
(4) the public interest issue the injunction. Audi Amato, 469 F.3d 534, 550
(6th Cir. 2006) (quoting eBay Inc., al. MercExchange, LLC, 547 U.S. 388, 391 (2006)).
Moreover, Plaintiffs must establish their case clear and convincing evidence. Damon
Rests., Inc. Eileen Inc., 461 Supp.2d 607, 621 (S.D. Ohio Aug. 30, 2006) (King, M.J.). meet this burden, the movant evidence must more than outweigh the [opposing] evidence,
but must also persuade the court that its claims are highly probable. Id.
III.
DISCUSSION
Plaintiffs have alleged four violations Section the NVRA 1993: (1) that the
Ohio Supplemental Process violates the NVRA removing voters from the voter registration
rolls based their failure vote; (2) Ohio voter maintenance procedures are unreasonable;
(3) Ohio voter maintenance procedures are not conducted uniformly; and (4) the confirmation
notice legally deficient. Defendant, the other hand, asserts that the Ohio Supplemental
Process does not remove voter solely for not voting and Ohio processes for maintaining the
voter registration rolls are specifically outlined and authorized the plain language the
NVRA. This Court will consider the parties arguments each the alleged violations turn.
Success the Merits
National Voter Registration Act
There dispute that federal law requires states implement procedures maintain
voter registration rolls.
Specifically, the two applicable statutes are the National Voter
Registration Act 1993 NVRA and the Help America Vote Act 2002 HAVA
Plaintiffs allege that Defendant use the Ohio Supplemental Process has violated and
continues violate Section the NVRA removing voters based failure vote and
Case: 2:16-cv-00303-GCS-EPD Doc Filed: 06/29/16 Page: PAGEID 23012
without following the procedures required the NVRA for removing voters who have changed
residence. U.S.C.A. 20507. (Doc. 37, Am. Compl., 56).
Notably, both sides argue that the language the NVRA unambiguous. the words the statute are unambiguous, the judicial inquiry end, and the plain meaning the text
must enforced. United States Plavcak, 411 F.3d 655, 661 (6th Cir. 2005). Despite both
parties arguing favor plain-meaning interpretation, they each reference the legislative
history the NVRA, citing selective quotes support their respective positions. (See Doc.
39, Pls. Mot., 23; Doc. 52, Pls. Opp. Br., 12; Doc. 49, Def. Br., 9). well-settled
that statute lacks ambiguity, then there need consult legislative history. Dep
Housing and Urban Dev. Rucker, 535 U.S. 125, 132 (2002). Similarly, Plaintiffs reliance
the Department Justice interpretations the NVRA misplaced because the Court need not
consider those interpretations where the NVRA clear its face.
The NVRA, U.S.C. 20507, titled Requirements with respect administration
voter registration, specifically provides:
(b) Confirmation voter registration. Any State program activity protect
the integrity the electoral process ensuring the maintenance accurate
and current voter registration roll for elections for Federal office-(1) shall uniform, nondiscriminatory, and compliance with the
Voting Rights Act 1965 (42 U.S.C. 1973 seq. [52 USCS 10301
seq.]); and
(2) shall not result the removal the name any person from the
official list voters registered vote election for Federal office
reason the person failure vote, except that nothing this paragraph
may construed prohibit State from using the procedures described subsections (c) and (d) remove individual from the official list
eligible voters the individual-(A) has not either notified the applicable registrar (in person
writing) responded during the period described subparagraph
(B) the notice sent the applicable registrar; and then
(B) has not has not voted appeared vote more
consecutive general elections for Federal office.
Case: 2:16-cv-00303-GCS-EPD Doc Filed: 06/29/16 Page: PAGEID 23013
(c) Voter removal programs.
(1) State may meet the requirement subsection (a)(4) establishing program under which-(A) change-of-address information supplied the Postal Service
through its licensees used identify registrants whose addresses
may have changed; and
(B) appears from information provided the Postal Service
that-(i) registrant has moved different residence address
the same registrar jurisdiction which the registrant
currently registered, the registrar changes the registration
records show the new address and sends the registrant
notice the change forwardable mail and postage
prepaid pre-addressed return form which the registrant
may verify correct the address information;
(ii) the registrant has moved different residence address
not the same registrar jurisdiction, the registrar uses the
notice procedure described subsection (d)(2) confirm
the change address.
(2) (A) State shall complete, not later than days prior the date
primary general election for Federal office, any program the purpose
which systematically remove the names ineligible voters from the
official lists eligible voters.
(B) Subparagraph (A) shall not construed preclude-(i) the removal names from official lists voters
basis described paragraph (3)(A) (B) (4)(A)
subsection (a);
(ii) correction registration records pursuant this Act.
(d) Removal names from voting rolls.
(1) State shall not remove the name registrant from the official list eligible voters elections for Federal office the ground that the
registrant has changed residence unless the registrant-(A) confirms writing that the registrant has changed residence place outside the registrar jurisdiction which the registrant
registered;
(B)
(i) has failed respond notice described paragraph
(2); and
(ii) has not voted appeared vote (and, necessary,
correct the registrar record the registrant address) election during the period beginning the date the
notice and ending the day after the date the second
general election for Federal office that occurs after the date the notice.
Case: 2:16-cv-00303-GCS-EPD Doc Filed: 06/29/16 Page: PAGEID 23014
(2) notice described this paragraph postage prepaid and
pre-addressed return card, sent forwardable mail, which the
registrant may state his her current address, together with notice the
following effect:
(A) the registrant did not change his her residence, changed
residence but remained the registrar jurisdiction, the registrant
should return the card not later than the time provided for mail
registration under subsection (a)(1)(B). the card not returned,
affirmation confirmation the registrant address may
required before the registrant permitted vote Federal
election during the period beginning the date the notice and
ending the day after the date the second general election for
Federal office that occurs after the date the notice, and the
registrant does not vote election during that period the
registrant name will removed from the list eligible voters.
(B) the registrant has changed residence place outside the
registrar jurisdiction which the registrant registered,
information concerning how the registrant can continue
eligible vote.
(3) voting registrar shall correct official list eligible voters
elections for Federal office accordance with change residence
information obtained conformance with this subsection. U.S.C. 20507(b) (d).
Plaintiffs assert that the plain language the NVRA, set forth above, prohibits voter
list-maintenance procedures that result the removal the name any person from the
official list voters registered vote election for Federal office reasons the person
failure vote U.S.C. 20507(b)(2). Plaintiffs seemingly ignore the rest that clause,
which separated comma and provides exceptions that allow for the procedures
specifically described both subsections (c) and (d). Rather, Plaintiffs argue that subsections
(c) and (d) are essentially just one exception that should considered together part the
address-change confirmation procedure. (Doc. 57, Pls. Reply, 5). such, Plaintiffs urge the
Court interpret the NVRA mandate that voter inactivity can only considered after the
Case: 2:16-cv-00303-GCS-EPD Doc Filed: 06/29/16 Page: PAGEID 23015
confirmation notice sent and cannot used the trigger for initiating the addressconfirmation process.
Plaintiffs accuse Defendant cherry-picking one [the NVRA] exceptions and
treating though were the basic rule contrary the statute actual words [which] not plain-meaning interpretation. (Id. (citing United States Medlock, 792 F.3d 700, 709
(6th Cir. 2015) [I]t cardinal principle statutory construction that courts must give effect, possible, every clause and word statute. (quoting Williams Taylor, 529 U.S. 362,
364 (2000))))). reality, Plaintiffs who focus single clause Section 20507(b)(2) and
not the entirety the statute.
Further, Plaintiffs want the Court read requirements and language into the NVRA that
simply are not there. Plaintiffs argue that Ohio may only send confirmation notice voter confirm change residence after the state has already obtained reliable second-hand
information, independent the voter failure vote, indicating that voter has moved. (Doc.
39, Pls. Mot., 26). Plaintiffs continue, [a]llowing states initiate the voter-removal process
based failure vote Ohio now doing would eviscerate subsection (b) plain
language, allowing the exception swallow the rule. (Id. 27). However, this not what the
NVRA states. The plain language the NVRA contradicts Plaintiffs position. The phrases
Plaintiffs rely on, such reliable second-hand information, independent the voter failure vote, initiate, trigger, etc., are nowhere found the NVRA. These are phrases that
Plaintiffs would like the Court write into the NVRA.
Subsection (d), set forth detail above, the basis for the Ohio Supplemental Process.
This section does not specifically state who should sent confirmation notice when that
confirmation notice should sent. Therefore, Defendant argues, and the Court agrees, that that
Case: 2:16-cv-00303-GCS-EPD Doc Filed: 06/29/16 Page: PAGEID 23016
decision left the states. See Keene Corp. U.S., 508 U.S. 200, 208 (1993) Our duty [is] refrain from reading phrase into the statute when Congress has left out. see also Bates
U.S., 522 U.S. 23, (1997) (courts resist reading words elements into statute that not
appear its face 2002, Congress addressed this section the NVRA HAVA, explaining:
[C]onsistent with the National Voter Registration Act 1993 registrants
who have not responded notice and who have not voted consecutive
general elections for Federal office shall removed from the official list
eligible voters, except that registrant may removed solely reasons
failure vote. U.S.C. 21083(a)(4) (emphasis added). The Ohio Supplemental Process consistent with
both the NVRA and HAVA voters are never removed from the voter registration rolls solely
for failure vote. Pursuant the Ohio Supplemental Process, confirmation notice sent
voters who have been inactive for two years. they not respond the confirmation notice,
they are placed inactive list, but their ability vote does not change that time. those the inactive list then fail vote the next two general federal elections, one which
Presidential election, then those voters are removed from the voter registration rolls. Therefore, only after person both (1) fails respond the confirmation process, and (2)
subsequently fails vote the following two general federal elections that she removed
from the voter registration rolls. Amicus Judicial Watch aptly describes the process,
registrants are queried the basis their failure vote, but not removed that basis.
(Doc. 61, Judicial Watch Amicus Br., (emphasis original)). The NVRA does not mention
explicitly implicitly the events that need need not happen before state may initiate its
confirmation process. For instance, applicable here, the NVRA does not prohibit state from
sending confirmation notice voters who have not voted for certain period time. Using
Case: 2:16-cv-00303-GCS-EPD Doc Filed: 06/29/16 Page: PAGEID 23017
the discretion left the states, they have undertaken different ways beginning the list
maintenance process.5
See U.S.C. 21085 The specific choices the methods
complying with the requirements this title shall left the discretion the State.
While there general lack actual case law analyzing Section the NVRA,
bears mentioning that both parties have cited several cases which the statute has been litigated
and resolved without final court order. Namely, Indiana entered into consent decree with the
DOJ 2006 whereby the State would engage process that more extensive than that
employed Ohio. See U.S. Indiana, 1:06-cv-1000-RLY-TAB (S.D. Ind. 2006). addition,
the City Philadelphia reached settlement agreement with the DOJ 2007 whereby the City
would consider voter inactivity part its voter roll maintenance process. See U.S. City
Philadelphia and Philadelphia City Commission, C.A. No. 06-4592 (E.D. 2007). addition, noted above footnote this Court oversaw settlement agreement reached Defendant
Husted and Judicial Watch 2014. (See Doc. 38-4, Judicial Watch Husted Consent Decree.)
That agreement still effect and sets forth Defendant Husted obligations with respect
Ohio voter registration maintenance processes. These agreements are not controlling the
instant matter, but they lend credence the fact that Ohio voter roll maintenance processes
comport with the NVRA requirements.
Accordingly, the Court finds that the Ohio Supplemental Process does not violate the
NVRA, and fact, the unambiguous text the NVRA specifically permits the Ohio
Supplemental Process.
Other states use inactivity begin their list maintenance processes, including Missouri, Tennessee,
Georgia, West Virginia, Montana, and Florida.
Case: 2:16-cv-00303-GCS-EPD Doc Filed: 06/29/16 Page: PAGEID 23018
Reasonableness
Plaintiffs argue that the Ohio Supplemental Process violates the NVRA because
unreasonable violation U.S.C. 20507(a)(4)(B). Plaintiffs argue that because the
Ohio Supplemental Process does not reliably identify whether voter has moved, not
reasonable method for purging the voter rolls and thus, violates the NVRA. Plaintiffs ask the
Court adopt the definition reasonable provided the Department Justice based
upon objective and reliable information potential ineligibility due change residence that independent the registrant voting history. (Doc. 39, Pls. Mot., (quoting Common
Cause and the Georgia State Conference the NAACP Kemp, 1:16-cv-452-TCB (N.D. Ga.
May 2016), ECF No. 19)). Defendant argues that the statute does not create some nebulous
reasonableness standard. (Doc. 49, Def. Br., 10).
Plaintiffs argue that the NVRA requires that the Ohio Supplemental Process must
reasonable under U.S.C. 20507(a)(4)(B), but the language the statute does not contain
such requirement. The statute specifically provides:
(a) general. the administration voter registration for election for
Federal office, each State shall-*
(4) conduct general program that makes reasonable effort remove
the names ineligible voters from the official lists eligible voters
reason of-(A) the death the registrant;
(B) change the residence the registrant, accordance with
subsections (b), (c), and (d); U.S.C. 20507(a)(4)(B) (emphasis added). The language the statute clear that the
program shall general and the effort shall reasonable. Notably, the statute does
not say that the program must reasonable. Further bolstering this conclusion that the
statute sets forth specific set requirements for programs used remove voters who have
moved. The statute requires that such program completed accordance with subsections
Case: 2:16-cv-00303-GCS-EPD Doc Filed: 06/29/16 Page: PAGEID 23019
(b), (c), and (d). U.S.C. 20507(a)(4)(B). Again, does not say that such program needs reasonable nor such requirement contained within subsections (b), (c), (d). The
Court need not consider outside sources for the interpretation the statute when the statute
clear its face. Detroit Receiving Hosp. Univ. Health Ctr. Sebelius, 575 F.3d 609, 613
(6th Cir. 2009) Our analysis begins and ends with the statute, because the provisions issue
are clear. (citing Chevron U.S.A., Inc. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842
(1984)). Accordingly, the Court finds that there reasonableness requirement for programs
that are otherwise lawful under subsections (b), (c), and (d).
However, even the Court were accept that the NVRA requires Defendant Husted
use reasonable means purge the voter rolls, Plaintiffs only case source for what should
considered reasonable Welker Clarke, 239 F.3d 596, 599 (3d Cir. 2001). Plaintiffs argue
[i]f state chooses use another source change-of-address information instead
addition NCOA, that source must similarly reliable. (Doc. 39, Pls. Mot., 31). Plaintiffs
rely dicta from Welker for this conclusion, quoting that the NVRA strictly limited removal
voters based change address and instead required that, for federal elections, states maintain
accurate registration rolls using reliable information from government agencies such the
Postal Service change address records. (Id., emphasis added Pls. (quoting Welker, 239
F.3d 599)). Plaintiffs take the language Welker one step further asking this Court
determine that based dicta from Welker, state must use information that reliably indicates
voter has moved. The Welker Court made such holding and the Court will not add language the Welker decision. actuality, the Ohio Supplemental Process uses information that both
reliable and comes from government agency. voter non-participation election may
not ideal indicator whether voter has moved, but Plaintiffs cannot dispute that the
Case: 2:16-cv-00303-GCS-EPD Doc Filed: 06/29/16 Page: PAGEID 23020
information itself that the voter did not participate election reliable and comes from
government agency. the Court view, the dicta Welker requires nothing more.
Accordingly, Plaintiffs argument that the Ohio Supplemental Process unreasonable without
merit.
Uniform Implementation
Next, Plaintiffs allege that the Ohio Supplemental Process violates the NVRA because applied non-uniform manner. Plaintiffs argue that counties conduct the process
different times, that counties can chose whether voter activity includes certain actions, and that
the notices sent each county are different. Defendant argues that Plaintiffs not have
standing raise this argument because Plaintiffs failed provide pre-litigation notice the
claim required the NVRA. Further, Defendant asserts that even Plaintiffs have standing,
the Ohio Supplemental Process uniform and nondiscriminatory. reach the merits this
claim, the Court will assume arguendo that Plaintiffs have standing.
The uniform and nondiscriminatory languages arises under U.S.C. 20507(b)(1)
which requires that any program which protects the integrity the voting process shall
uniform, nondiscriminatory, and compliance with the Voting Rights Act 1965. Plaintiffs
argue that voter county determines and when voter removed from the rolls while
Defendant argues that all Ohio counties have the same 120-day window which
purge their rolls and that each county has the discretion determine which activities constitute
voter activity.
Plaintiffs make argument that the differences between counties are
discriminatory, instead, Plaintiffs argue that the differences improperly lack uniformity.
Plaintiffs ask the Court adopt the following standard: uniform and nondiscriminatory, state list-maintenance program must not treat similarly situated voters
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differently based irrelevant characteristics. (Doc. 39, Pls. Mot., (citing Project Vote
Blackwell, 455 Supp. 694, 703 (N.D. Ohio 2006)). But the county which one resides
not irrelevant characteristic Ohio. Ohio voting system delegates significant authority
the county boards elections.
Counties are responsible for generating ballots, delivering
ballots, the selection and maintenance voting equipment, determining whether certain
petitions are needed, and for administering the actual election Election Day. Ohio Rev. Code
3501.06; 3501.11; 3506.02; 3506.03; 3513.051. Further, person physical location
course determinative which issues and candidates which person may vote. Ohio Rev.
Code 3503.06, 3503.07, 3503.17. fact, county boards elections Ohio are specifically
granted the responsibility establishing, defining, rearranging, and combining election
precincts. Ohio Rev. Code 3501.11(A). There are numerous reasons why county may
operate voter-maintenance program differently from neighboring county including, but not
limited the county budget, the county population, and county access data. Ohio, the
county which one resides anything but irrelevant characteristic. Accordingly, under
Plaintiffs test, there uniformity and non-discrimination because the Court cannot find that
voters different counties are similarly situated.
However, even the Court were find the process non-uniform, the Ohio Supplemental
Process otherwise lawful, meaning that those who did not get vote because they were
purged before the election were properly purged. Accordingly, the effective disparity not that
some voters were purged wrongfully, but rather, that some voters improperly remained the
rolls and should not have had the right vote. Notably, HAVA requires that registrants who
have not responded notice and who have not voted consecutive general elections for
Federal office shall removed from the official list eligible voters U.S.C.
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21083(a)(4). But even Defendant violation HAVA for not removing voters who
should purged, Plaintiffs Amended Complaint does not ask this Court address those who
should not have been able vote, but rather restore those unlawfully purged. (See Doc. 37,
Am. Compl., 58, 63(ii)). set forth, Plaintiffs Amended Complaint does not seek any
relief for Ohio Supplemental Process which improperly allows some vote.
Finally,
although appears the timing the Ohio Supplemental Process could more narrowly
tailored, the Court cannot find 120-day period for voter-roll-maintenance non-uniform where
the Ohio Supplemental Process uniformly removes voters who have voter activity and fail
respond confirmation notice accordance with the NVRA. Accordingly, Plaintiffs claim
fails the merits.
Confirmation Notice
Plaintiffs argue that the version Ohio Confirmation Notice place the time this
litigation began violates the requirements Section 8(d) the NVRA. Specifically, Plaintiffs
argue that the Confirmation Notice does not notify voters the date which they must respond avoid adverse consequences; fails inform voters the consequences not responding
the confirmation notice; does not inform people who have moved out the state how they can
register their new state; and requires voters provide the same information required
register vote. Plaintiffs have sought injunctive relief directing the Defendant adopt new
Form 10-S that complies with the requirement the NVRA. The NVRA specifically provides:
(2) notice described this paragraph postage prepaid and
pre-addressed return card, sent forwardable mail, which the
registrant may state his her current address, together with notice the
following effect:
(A) the registrant did not change his her residence, changed
residence but remained the registrar jurisdiction, the
registrant should return the card not later than the time
provided for mail registration under subsection (a)(1)(B).
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the card not returned, affirmation confirmation the
registrant address may required before the registrant
permitted vote Federal election during the period
beginning the date the notice and ending the day after
the date the second general election for Federal office that
occurs after the date the notice, and the registrant does
not vote election during that period the registrant name
will removed from the list eligible voters.
(B) the registrant has changed residence place outside the
registrar jurisdiction which the registrant registered,
information concerning how the registrant can continue
eligible vote. U.S.C. 20507(d)(2).
After Plaintiffs brought this issue the attention the Secretary State, has made
changes Form 10-S that now compliance with the requirements the NVRA. (See
Doc. 38-18, Ex. Def. 1st Br., (the Revised Notice )). The Revised Notice has been
promulgated Secretary Husted the form emails each Ohio county boards
elections and posted the Secretary State website. (See Doc. 56-2, Ex. Def.
Br., Website Screen Shots and Emails). Defendant represents that the Revised Notice will
used the 2016 list maintenance procedure. Defendant asserts that government official, his
change the procedure entitled deference, relying Mosley Harrison, 920 F.2d 409,
415 (6th Cir. 1990) (holding that, the context mootness, change procedure made
public official entitled greater deference than change private entity). Defendant
therefore argues that Count Plaintiffs Amended Complaint now moot.
Plaintiffs dispute that their claim now moot the basis that the old Form 10-S was
existence the time the Complaint was filed. For voluntary cessation render claim moot,
there [must be] reasonable expectation that the wrong will repeated. Youngstown Publ
Co. McKelvey, 189 App 402, 405 (6th Cir. 2006). Plaintiffs argue that even the
Revised Notice adopted and used the 2016 process, there nothing preventing the
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Defendant from reverting back the non-conforming Confirmation Notice the future except
court intervention. The Court does not agree. Defendant voluntarily made changes Form
10-S upon receiving notice from Plaintiffs that was not compliance with the NVRA.
Defendant has disseminated the Revised Notice and has stated part the record that the State
plans use this notice the annual execution the list maintenance procedures. There
evidence suggest that the Defendant does not plan use this Revised Notice 2016 any
other point the future.
Finally, Plaintiffs argue that problems persist with the Revised Notice despite Secretary
Husted revisions. Specifically, Plaintiffs argue that the Revised Notice violates the NVRA
because fails provide information about how recipient can re-register he/she has moved
outside the state. (Doc. 57, Pls. Reply, 20). Section (d)(2)(B) the NVRA provides: the
registrant has changed residence place outside the registrar jurisdiction which the
registrant registered, information concerning how the registrant can continue eligible
vote. U.S.C. 20507(d)(2)(B).
Plaintiffs have raised this argument for the first time their Reply brief despite being
aware prior filing their Response the Revised Notice and Defendant position that the
Revised Notice complies with the NVRA notice requirements. not proper for party raise new argument reply because the opposing party not afforded with opportunity
respond. such, the Court free disregard this argument. See Ross Choice Hotels Intl,
Inc., 882 Supp. 951, 958 (S.D. Ohio 2012) (Frost, J.) This Court has explained time and
again that reply brief not the proper place raise issue for the first time. Consequently,
the Court need not and will not consider [the new argument]. (citations omitted)).
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Even the argument were timely raised, still fails. The NVRA does not specifically
require states control and/or instruct voters other states. Section 20507 begins with Each
State shall The protections the NVRA exist protect voters their respective states
continue vote within that State not register another state. defies logic that the NVRA
would saddle the various secretaries state (or their equivalents) with the onerous burden
coaching out-of-state residents through the registration process their new states residence.
The Revised Notice gives Ohio voters the only voters Ohio obligated provide notice
several options notify the Secretary State change address, including the opportunity update the information online. Accordingly, the Revised Notice, Form 10-S, therefore
compliance with the NVRA.
Irreparable Harm/Injury
Given that Plaintiffs have not substantially demonstrated violation the NVRA, the
Court unable conclude that irreparable harm has been established for purposes issuing
preliminary and/or permanent injunction.
Harm Others
Again, since there has been violation the NVRA, there will harm others
continuing maintain the voter registration rolls accordance with the NVRA.
Public Interest
The Court finds that the public interest being served Ohio voter maintenance
procedures and will continue served long Ohio continues operate compliance
with the NVRA. The purposes the NVRA include: protect the integrity the electoral
process; and ensure that accurate and current voter registration rolls are maintained.
U.S.C. 20501. Therefore, Ohio procedures maintaining the voter registration rolls ensure
the integrity the election process.
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Accordingly, after examining the preliminary and permanent injunction factors together,
the Court concludes that injunctive relief not warranted this instance.
This decision
disposes all Plaintiff claims and effectuates the desire the parties that is, renders the
Court final decision the merits the case. The parties have agreed that final, expedient
decision the best interest all involved light the looming November election. The
Court believes this order provides exactly that.
IV.
CONCLUSION
Based the foregoing, Plaintiffs Motion for Summary Judgment and Permanent
Injunction, or, the alternative, Preliminary Injunction DENIED.
Having found that
Plaintiffs claims are not meritorious, there just reason for delay and therefore, final
judgment shall entered favor Defendant.
The Clerk this Court shall remove Documents and from the Court pending
motions list and terminate this case. ORDERED.
__/s/ George Smith
___
GEORGE SMITH, JUDGE
UNITED STATES DISTRICT COURT