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Judicial Watch • Husted v Randolph Inst NVRA brief 00303

Husted v Randolph Inst NVRA brief 00303

Husted v Randolph Inst NVRA brief 00303

Page 1: Husted v Randolph Inst NVRA brief 00303

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Number of Pages:16

Date Created:September 28, 2018

Date Uploaded to the Library:October 15, 2018

Tags:registrations, Inst, 00303, POPPER, Husted, Elections, Supplemental, randolph, Registration, Amicus, voter, Supreme, Plaintiffs, defendant, DOJ, Supreme Court, robert, district


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Case: 2:16-cv-00303-GCS-EPD Doc 134-1 Filed: 09/28/18 Page: PAGEID 24558 THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OHIO
EASTERN DIVISION
____________________________________
OHIO PHILLIP RANDOLPH
INSTITUTE., al.,
Plaintiffs,
Case No. 2:16-cv-00303
JUDGE GEORGE SMITH
JON HUSTED, OHIO SECRETARY
Magistrate Judge Elizabeth Preston Deavers STATE,
Defendant.
____________________________________)
BRIEF AMICUS CURIAE JUDICIAL WATCH, INC. SUPPORT
DEFENDANT JOHN HUSTED, OHIO SECRETARY STATE
Chris Fedeli
Robert Popper
Eric Lee Admitted Pro Hac Vice
Counsel for Amicus Curiae Judicial Watch Inc.
Case: 2:16-cv-00303-GCS-EPD Doc 134-1 Filed: 09/28/18 Page: PAGEID 24559
Table Contents
Table Contents ...
Introduction ...1
Argument ...2
There are Insurmountable Practical Obstacles Reinstating
Registrations that Have Been Removed from Ohio Voter Rolls ...2
II.
The Facts Not Warrant the Indefinite Suspension Section the NVRA Ohio Either Extending the APRI Exception
Disregarding the Inactive List, Plaintiffs Request
Conclusion ...
Case: 2:16-cv-00303-GCS-EPD Doc 134-1 Filed: 09/28/18 Page: PAGEID 24560
Introduction Defendant Jon Husted, Ohio Secretary State, has argued persuasively (Doc. 133),
Plaintiffs Ohio Philip Randolph Institute APRI the Northeast Ohio Coalition for
the Homeless NEOCH and Larry Harmon (collectively, Plaintiffs are trying end-run
around Supreme Court decision that they lost, seeking obtain remedies that they pursued
that lost cause attaching them violations concerning the text federal form, which
Plaintiffs never before suggested warranted such extraordinary remedies. Plaintiffs seek relief
for which they provided inadequate statutory notice, which they never sought their complaint,
and which they waived and are estopped from seeking. the merits, moreover, Plaintiffs
claim fails. Amicus Judicial Watch. Inc. joins all these arguments and incorporates them
reference.
Amicus writes here emphasize that the permanent relief Plaintiffs seek wildly
impractical, poorly thought out, contrary the public interest, and contrary the intention
the NVRA. Thus, even Plaintiffs had identified Ohio allegedly inadequate confirmation
notices timely notice letter; even they had sued only that claim; even they had
requested the injunctions they seek now from the very beginning the suit; and even they had
never waived abandoned that requested relief none which true and even were
beyond dispute that the text the confirmation notices issue were contrary the
requirements the NVRA and Plaintiffs were entitled judgment matter law which
not the case even those circumstances, Plaintiffs requested permanent injunction should
denied account the equitable considerations discussed below.
Case: 2:16-cv-00303-GCS-EPD Doc 134-1 Filed: 09/28/18 Page: PAGEID 24561
Argument
There are Insurmountable Practical Obstacles Reinstating Registrations that
Have Been Removed from Ohio Voter Rolls.
Plaintiffs first request for relief seeks order [r]einstating eligible voters who were
purged between 2009 and 2015, but who remain eligible vote Ohio, the registration
rolls. Pls. Mot.
Nowhere its motion, nor its expert reports, nor, far amicus can ascertain,
anywhere else the record Plaintiffs explicitly spell out the total universe registrations
that (they maintain) must reinstated (or alternatively made subject apparently endless
APRI exception Plaintiffs are content repeatedly describe the number affected
registrations countless. Pls. Br. 12. Yet greater precision possible. The total
number Ohio registrations removed during the relevant period pursuant Section 8(d)(1)
notice-and-waiting-period provision available from public records and staggering.
According reports submitted Ohio the Election Assistance Commission, total
1,547,615 Ohio voter registrations were cancelled from 2009 2015 for [f]ailure respond
notice sent and failure vote the two most recent Federal elections. Popper Decl., 7-12.
This number about one fifth the million registrants currently Ohio voter rolls. See
Doc. 133-4, 7.v.
The sheer magnitude this number suggests the practical issues Plaintiffs need
account for order justify their requested injunction. See Child Evangelism Fellowship
Ohio, Inc. Cleveland Metro. Sch. Dist., 600 App 448, 451 (6th Cir. 2015) (an injunction extraordinary remedy and plaintiff has the burden proving that the circumstances
clearly demand (citations and internal quotations omitted). These removals, moreover, took
place different times throughout six-year period starting nine years ago (2009 through 2015),
Case: 2:16-cv-00303-GCS-EPD Doc 134-1 Filed: 09/28/18 Page: PAGEID 24562 the hands different State and many different county administrations. Plaintiffs not only
express clear view about the number registrations involved, they not adequately explain
how State officials, county officials, both, would locate and reinstate all these
registrations.1 fact, any reinstatement voter registrations fraught with practical problems.
Suppose, for example, that identifying and reinstating the relevant 1.5 million registrations,
removed many counties over many years, were easy flipping switch huge and
unwarranted assumption. Any such action would still have harmful, unintended consequences
unless other factors were properly accounted for. Consider common scenario where voter
moves from one Ohio jurisdiction another without notifying local election officials, and where
the voter old registration then removed after unreturned address confirmation notice
followed two general federal elections. Indeed, this may happen several times the same
voter. sledgehammer approach reinstatement that merely reactivated all previously
removed registrations would create duplicate registration corresponding every one that
voter old Ohio addresses. Disentangling these duplicate registrations could done, but
would take time and effort and would more less complicated depending each voter
circumstances. While there are number ways approach this problem, particular method
must chosen, and each method involves its own unique tradeoffs among reliability, ease
implementation, and cost. Which should chosen? What are the costs and tradeoffs? the same vein, inactive registration lists can become populated with deceased voter
registrations where, for example, voters move out the State without notifying State officials Defendant clearly shows, Plaintiffs expert Daniel Smith made incorrect assumptions about Ohio 10-digit
statewide and about the possibility discrete snapshots county voter files, and did not present evidence the feasibility, cost, administrative burden his proposed plan. Doc. 133 15-16. Amicus joins those
arguments and incorporates them herein.
Case: 2:16-cv-00303-GCS-EPD Doc 134-1 Filed: 09/28/18 Page: PAGEID 24563
and then die elsewhere, while the voter registration removed after notice and two elections.
Popper Decl., 13. Plaintiffs proposed injunction would reinstate the registrations such
deceased voters. Again, there are ways identify registrations belonging voters who have
died out state (for example, using the State and Territorial Exchange Vital Events
database), but each approach more less reliable, simple, and expensive. Which should
chosen, and why? Plaintiffs appear least dimly aware these kinds issues when they
propose that the Court restrict reinstatements those who remain eligible vote Ohio.
Pls. Mot. But Plaintiffs not provide the slightest guidance about how this critical task
might accomplished.
Because Plaintiffs have failed adequately address these issues, they have failed show
two the four factors necessary obtain injunction, namely, whether issuance the
injunction would cause substantial harm others, and whether the public interest would
served the issuance the injunction. Child Evangelism Fellowship, 600 App 451
(citation omitted). Accordingly, the requested injunction should denied.
Indeed, the relief requested would harm the public interest, given that many the
reinstated registrations would legally invalid because they are associated with voters who are
living other states are deceased. The laws both Congress and Ohio embody what must considered commonsense assumption: that failure respond notice combined with
years failing vote correct one address suggest that registrant does not live state
anymore. Responding the argument that failing vote for two years does not reliably
indicate that registrant has moved out the jurisdiction, the Supreme Court observed:
The degree correlation between the failure vote for two years and change residence debatable, but know from subsection [8](d) that Congress
thought that the failure vote for period two consecutive general elections
was good indicator change residence, since made nonvoting for that
Case: 2:16-cv-00303-GCS-EPD Doc 134-1 Filed: 09/28/18 Page: PAGEID 24564
period element subsection [8](d) requirements for removal. similar
vein, the Ohio Legislature apparently thought that nonvoting for two years was
sufficiently correlated with change residence justify sending return card.
Husted Philip Randolph Inst., 138 Ct. 1833, 1846-47 (2018).
Consider the elapsed time associated with the removal voter registration under Ohio
law. address confirmation notice not returned, the NVRA authorizes removal
registration after two general federal elections that is, after period that somewhere from
two four years. Ohio, however, extended that period include four years all cases. See id. 1841 Ohio rounds four consecutive years nonvoting after notice confirmation
card sent pursuant the Supplemental Process, moreover, only sent after two initial years
voter inactivity. That means that all removals for failure respond address confirmation
notice Ohio take least four years and many six years. Consider also the periods
time that have elapsed after the voter registrations issue this case were cancelled.
registration was cancelled 2015 and was never renewed, that means that the voter has not
taken steps reregister the preceding three years (and has not voted under the APRI
exception the other end the time period, registration was cancelled back 2009 and
was never renewed, that voter has not reregistered for the past nine years.
Adding these time periods together, get full sense the extremely long periods
voter inactivity associated with the removed registrations this case. voter removed 2015
received confirmation card the period from 2009 2011. That voter has shown voter
activity any kind for seven nine years. the other end the time period, voter removed 2009 received confirmation card the period from 2003 2005. That voter has shown
Case: 2:16-cv-00303-GCS-EPD Doc 134-1 Filed: 09/28/18 Page: PAGEID 24565
voter activity any kind for years. simply impossible argue that removing these
registrations unduly harsh unfair any way inequitable.2
The fact that the removed registrations overwhelmingly belong voters who longer
live Ohio borne out the paltry numbers who have used the APRI exception, which
allows voters whose registrations were previously removed cast provisional ballots. five
applicable elections, total 7,798 provisional ballots were cast pursuant the exception.
Doc. 133-4, 14. (Of course, having voted, those registrants are once again active voters and longer need the exception.) Yet that number constitutes mere 0.5% (one half one
percent) the more than 1.5 million registrations removed from 2009 2015. turn this number around, that means that Plaintiffs are asking this Court reinstate
cohort voter registrations belonging voters 99.5% whom have not voted registered
vote Ohio for uninterrupted period time extending for from seven years. All
logical, reasonable, and moral inferences support the conclusion that these registrations belong
voters who have moved elsewhere have died.3 fact, Ohio acted its own accomplish the same objectives Plaintiffs seek,
accepting registrations that were about 99.5% likely belong out-of-state dead voters,
would thereby violate Section the NVRA failing conduct general program that this regard, cannot let pass Plaintiffs misleading use the term disenfranchised, when they state that
[c]ountless Ohio voters who have been will unlawfully removed from the registration rolls will risk being disenfranchised either this November future elections. Pls. Mot. These voters are not
disenfranchised the sense that the law forbids them vote because their race gender some other personal
characteristic. Their registrations were simply cancelled because they did not confirm their addresses and then
failed show vote for number elections. All they have reregister.
Note that the number registrations removed from 2009 2015 high compared the number voters who
voted provisionally that even significant changes these numbers would not change the overall picture. For
example, there were half many registrations removed during that period, that would still mean that about 99%
(rather than 99.5%) removed voters showed voter activity. the very least, given that Plaintiffs presented
evidence this point, there material issue fact precluding summary judgment.
Case: 2:16-cv-00303-GCS-EPD Doc 134-1 Filed: 09/28/18 Page: PAGEID 24566
makes reasonable effort remove the names ineligible voters from the official lists
eligible voters. The requested injunction worse than improper exercise equitable
power. Indeed, requests unlawful relief. Section the NVRA makes crime,
punishable fines and five years prison, elections for federal office
knowingly and willfully deprive[], defraud[], attempt[] deprive defraud
the residents State fair and impartially conducted election process,
the procurement submission voter registration applications that are known the person materially false, fictitious, fraudulent under the laws the
State which the election held U.S.C. 20511. Section 11(c) the Voting Rights Act makes crime, punishable fines
and five years prison, elections for federal office, conspire[] with another
individual for the purpose encouraging his false registration vote illegal voting
U.S.C. 10307(c). And Ohio law makes felony, punishable fines and year
prison, knowingly register make application attempt register precinct which
the person not qualified voter; knowingly aid abet any person register; attempt register knowingly induce attempt induce any person register. Ohio Rev. Code
Ann. 3599.11. Compelling Ohio accept and restore what are overwhelmingly likely
invalid registrations would amount compelling violate both federal and state law. Cf.
Northeast Savings, F.A. Director, Office Thrift Supervision, 770 Supp. 19, (D.D.C.
1991) (injunctive relief contrary the Tucker Act cannot granted because contrary
federal law. Plaintiff seeks, essence, order permitting plaintiff, and requiring defendants,
violate statutory and regulatory requirements.
Case: 2:16-cv-00303-GCS-EPD Doc 134-1 Filed: 09/28/18 Page: PAGEID 24567
II.
The Facts Not Warrant the Indefinite Suspension Section the NVRA
Ohio Either Extending the APRI Exception Disregarding the Inactive
List, Plaintiffs Request.
Plaintiffs request the alternative that the court [c]ontinu[e] the APRI Exception
indefinitely, until (1) every Ohio registrant who was removed pursuant the Supplemental
Process receives notice explaining how reregister the individual has moved, and (2) two
general elections have elapsed. Pls. Mot. Needless say, this remedy completely nonstatutory. This remedy would extend the APRI exception for some voters through the 2020
elections least, or, Section 8(c)(2) 90-day freeze period presumed apply such
notices, through the 2022 elections. See U.S.C. 20507(c)(2)(A).
Plaintiffs also request that all registrations placed the State inactive list returned active status, and that the process removing their registrations under Section 8(d) start
over again with new confirmation notices. Pls. Mot. clear about what stake, the NVRA written simply cannot considered
operative Ohio while either these remedies place. Section provides that voters who
receive address confirmation notice and who not respond vote the next two
general federal elections are removed from the voter rolls. For long such registrations
are kept the rolls beyond the next two general federal elections, however, and are held
available for voters vote, the NVRA cannot said operate. Similarly, once voters have
received notices and have not responded them and are placed inactive status, those
same voters are then placed back active status until they receive another notice, Section
notice provision has been effectively suspended. Plaintiffs requested relief granted,
moreover, they will have succeeded suspending the operation Section the NVRA
Ohio from 2016 through least 2022, based one claim that was expressly rejected the
Case: 2:16-cv-00303-GCS-EPD Doc 134-1 Filed: 09/28/18 Page: PAGEID 24568
U.S. Supreme Court, and based the instant claim that defective for all the reasons set forth Defendant brief (Doc. 133).
Yet even Plaintiffs claims regarding shortcomings Ohio confirmation notices were
entirely meritorious, their requested relief that essentially suspends the NVRA Ohio for
several years contrary the purpose manifest the text the statute. The NVRA does not
expressly dictate the precise language that must confirmation notice. Rather, provides
that notice must the following effect. U.S.C. 20507(d)(2). That phrase
synonym for basically, sum and substance. The logical inference that strict
adherence any particular text not essential. Indeed, this flexibility woven into the fabric the statute, which generally gives states wide latitude run their own list maintenance
programs. See, e.g., Husted, 138 Ct. 1847 (no provision the NVRA demands that
State have some particular quantum evidence change residence before sending
registrant return card. long the trigger for sending such notices uniform,
nondiscriminatory, and compliance with the Voting Rights Act States can use whatever
plan they think best.
Once conveyed registrant that their registration may cancelled Section
8(d)(2) confirmation card not returned, the essential purpose the confirmation card has been
achieved. Other shortcomings the text such card can only considered technical and
will not warrant the drastic remedies, like nullifying the effect the card altogether had
never been sent, that Plaintiffs request. This especially true Section 8(d)(2)(B)
requirement that notice contain information concerning how the registrant can continue
eligible vote. This information best tangential the purpose the card.
Case: 2:16-cv-00303-GCS-EPD Doc 134-1 Filed: 09/28/18 Page: PAGEID 24569
Conclusion
For the foregoing reasons, Plaintiffs motion for judgment summary judgment and for permanent injunction should denied.
Dated: September 28, 2018
Respectfully submitted, Chris Fedeli
Chris Fedeli
Robert Popper
Eric Lee
JUDICIAL WATCH, INC.
Counsel for Amicus Curiae Judicial Watch
Case: 2:16-cv-00303-GCS-EPD Doc 134-1 Filed: 09/28/18 Page: PAGEID 24570
Declaration Robert Popper
Case: 2:16-cv-00303-GCS-EPD Doc 134-1 Filed: 09/28/18 Page: PAGEID 24571 THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OHIO
EASTERN DIVISION
____________________________________
OHIO PHILLIP RANDOLPH
INSTITUTE., al.,
Plaintiffs,
Case No. 2:16-cv-00303
JUDGE GEORGE SMITH
JON HUSTED, OHIO SECRETARY
Magistrate Judge Elizabeth Preston Deavers STATE,
Defendant.
____________________________________)
DECLARATION ROBERT POPPER
Robert Popper, for his declaration pursuant U.S.C. 1746, deposes and says: over years age and not party this action. make this declaration
opposition Plaintiffs motion for judgment summary judgment and permanent relief, based firsthand knowledge the facts stated herein. June each odd-numbered year, the U.S. Election Assistance Commission EAC required law release report regarding state voter registration practices.
U.S.C. 20508(a)(3). States are required federal regulations provide various kinds
registration data the EAC for use this biennial report. C.F.R. 9428.7(b)(1), (2).
The EAC biennial reports are collected the following website:
https://www.eac.gov/research-and-data/election-administration-voting-survey/.1 universally held that courts may judicially notice facts government website self-authenticating. See
Ashcroft Iqbal, 556 U.S. 662, 667 (2009) (judicial notice facts DOJ website); United States Windsor, 133 Ct. 2675, 2690 (2013) (noticing Maine website); Newton Holland, 2014 U.S. Dist. LEXIS 10625 *2-3 n.1
(E.D. Ky. 2014) records and information located government websites are self-authenticating Sannes Jeff
Wyler Chevrolet, Inc., 1999 U.S. Dist. LEXIS 21748 *10 (S.D. Ohio March 31, 1999).
Case: 2:16-cv-00303-GCS-EPD Doc 134-1 Filed: 09/28/18 Page: PAGEID 24572
Question A11e the Survey Instrument used collect data for these reports asks
states specify how many the total number voters removed from the rolls during the
survey period were removed for the following reason: Failure respond notice sent and
failure vote the two most recent Federal elections. See, for example, the Survey
Instrument https://www.eac.gov/assets/1/28/2016_EAVS_Instrument.pdf, page (Question
A11e).
The survey period for each report runs from November each even year
November the next even year. Thus, the survey data for Ohio the 2010, 2012, 2014, and
2016 reports was collected from November 2008 through November 2016. This corresponds
closely with the period under consideration Plaintiffs request for injunctive relief, from 2009
through 2015. Since the Supplemental Process stopped 2015, the fact that 2016 was included the EAC report will not change Ohio numbers significantly. Further, the reported numbers
are typically the low (conservative) side, because each year number counties provide
data. This fact reflected the excel spreadsheets wherever particular county reports 999999 -888888. went into the excel spreadsheets and added all the A11e data for Ohio
counties the reports for 2010, 2012, 2014, and 2016. set all designations -999999 888888, indicating missing data, equal zero.
The 2010 report showed 274,443 removals for failure respond notice and vote the two most recent federal elections. See excel dataset
https://www.eac.gov/voters/national-voter-registration-act-studies/, under 2009 2010 NVRA
Report.
Case: 2:16-cv-00303-GCS-EPD Doc 134-1 Filed: 09/28/18 Page: PAGEID 24573
The 2012 report showed 492,514 removals for failure respond notice and vote the two most recent federal elections. See excel dataset
https://www.eac.gov/voters/national-voter-registration-act-studies/, under 2011 2012 NVRA
Report.
The 2014 report showed 353,877 removals for failure respond notice and vote the two most recent federal elections. See excel dataset
https://www.eac.gov/research-and-data/2014-election-administration-voting-survey/.
10.
The 2016 report showed 426,781 removals for failure respond notice and vote the two most recent federal elections. See excel dataset
https://www.eac.gov/research-and-data/2016-election-administration-voting-survey/.
12.
The total the above removals for failure respond notice and vote
the two most recent federal elections 1,547,615.
13. experience litigating recent NVRA cases, large numbers deceased voters
can end state inactive voter rolls whenever the state has less-than-comprehensive
method for tracking voters who leave the state and die other states other countries. declare under penalty perjury that the foregoing true and correct.
Executed:
September 28, 2018
/s/ Robert Popper
Robert Popper