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Judicial Watch • Husted v Randolph Inst NVRA judgment 00303

Husted v Randolph Inst NVRA judgment 00303

Husted v Randolph Inst NVRA judgment 00303

Page 1: Husted v Randolph Inst NVRA judgment 00303

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Number of Pages:27

Date Created:October 10, 2018

Date Uploaded to the Library:October 15, 2018

Tags:Inst, 00303, confirmation, Sixth, harmon, NVRA, Husted, Supplemental, randolph, Judgment, Registration, notice, process, Plaintiffs, ACLU, Circuit, Secretary, defendant, federal, Supreme Court


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Case: 2:16-cv-00303-GCS-EPD Doc 140 Filed: 10/10/18 Page: PAGEID 24730
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OHIO
EASTERN DIVISION
OHIO PHILLIP RANDOLPH
INSTITUTE, al.,
Plaintiffs,
Case No. 2:16-cv-303
JUDGE GEORGE SMITH
Magistrate Judge Deavers
JON HUSTED,
OHIO SECRETARY STATE,
Defendant.
OPINION AND ORDER
This matter before the Court the parties cross-motions for final judgment the
remaining claim this case (Doc. 132 and 133).1 Additionally, Plaintiffs submitted Reply brief
(Doc. 139). The parties have agreed submit all remaining legal arguments and the requested
relief sought their merits brief for final adjudication this matter. Additionally, Amicus
Judicial Watch, Inc. and Amicus Public Interest Legal Foundation have filed amicus briefs
support Defendant Jon Husted. (See Docs. 137 and 138). After careful review the parties
arguments, the Court GRANTS PART AND DENIES PART Plaintiffs Motion and
GRANTS PART AND DENIES PART Defendant Motion.
BACKGROUND
Plaintiffs Ohio Philip Randolph Institute Randolph Institute the Northeast Ohio
Coalition for the Homeless NEOCH and Larry Harmon (collectively Plaintiffs initiated this
The parties have agreed that the remaining issue involves question law and have agreed waive any
oral presentation evidence. However, some questions may arise with respect the remedy, and
necessary, this Court will weigh any evidence and make findings similar bench trial, but briefs.
Case: 2:16-cv-00303-GCS-EPD Doc 140 Filed: 10/10/18 Page: PAGEID 24731
case April 2016, seeking injunctive relief prevent future removal registered voters from
the voter registration rolls pursuant to, inter alia, Ohio Secretary State Directive 2015-15.2 The
last time any names were removed from the voter registration list pursuant Ohio Supplemental
Process was 2015. (Doc. 80-1, Damschroder Declaration 21). Those individuals removed 2015 failed respond confirmation cards and failed vote engage voter activity
otherwise communicate with the board elections, since March 2009. (Id. 22). The
next scheduled Supplemental Process will after the November 2018 election. (Doc. 133-3,
Direction 2018-20).
One named individual Plaintiff, Larry Harmon, 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 registered voters. fact, Mr. Harmon had been removed from the
Portage County voter registration rolls pursuant Ohio current practices and procedures for
maintaining accurate voter rolls. 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
The full factual background this case set forth detail this Court previous Opinions and Orders
and will only summarized for purposes this Opinion and Order. (See Docs. and 89).
Case: 2:16-cv-00303-GCS-EPD Doc 140 Filed: 10/10/18 Page: PAGEID 24732
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 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.
Once voter identified under either process, confirmation notice sent the voter forwardable mail with postage pre-paid return envelope. (Doc. 38-2, Damschroder Decl.,
14). 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 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) pass without voter activity, that
time, the individual voter registration record removed. (Id.).
Case: 2:16-cv-00303-GCS-EPD Doc 140 Filed: 10/10/18 Page: PAGEID 24733
Plaintiffs first cause action challenged the Ohio Supplemental Process violation
the National Voter Registration Act NVRA U.S.C. 20501 seq., which establishes the
requirements that states must follow maintain their respective voter registration rolls. U.S.C.
20507. Plaintiffs second cause action challenged the change address confirmation notices
mailed voters part the Supplemental Process for failure meet the standards for such
forms set forth the NVRA, U.S.C. 20507(d)(2).3 June 29, 2016, this Court found that Ohio Supplemental Process did not violate the
NVRA and denied Plaintiffs Motion for Summary Judgment and Permanent Injunction and
entered judgment favor Defendant. Also, with respect Plaintiffs challenge the
confirmation notice, this Court held that Plaintiffs initial challenges Ohio confirmation notice
were mooted the adoption revised form that addressed all but one Plaintiffs concerns;
and that the revised confirmation notice (Form 10-S) was compliance with the NVRA. September 23, 2016, the United States Court Appeals for the Sixth Circuit reversed
this Court, holding that Ohio Supplemental Process violates Section subsection (b)(2) the
NVRA because sends the confirmation notice based solely person failure vote.
Phillip Randolph Inst., al. Husted, 838 F.3d 699, 712 (2016). Additionally, with respect
the confirmation notice, the Sixth Circuit held that this Court erred concluding that Ohio need
not provide out-of-state movers with information how they can continue eligible vote.
Id. 715.
Following remand from the Sixth Circuit and faced with the upcoming general election
November 2016, this Court granted part and denied part both Defendant Motion
Notably, during the briefing the merits this case, the Secretary State issued directive requiring
all Ohio Boards Elections use new version the confirmation notice. Plaintiffs agreed that the new
confirmation notice corrected all but one the deficiencies
Case: 2:16-cv-00303-GCS-EPD Doc 140 Filed: 10/10/18 Page: PAGEID 24734
Implement Remedy (Doc. 72) and Plaintiffs Motion for Temporary Restraining Order (Doc. 74) October 19, 2016. (Doc. 89, Opinion and Order). This Court recognized: There dispute
that the remedy ordered this Court will not involve the reinstatement all voters who have
been removed from the voter registration rolls. But will allow voters who have been illegally
removed cast provisional ballot and the Court will set forth the procedure for validating and
counting those provisional ballots. This Court further recognized that despite Plaintiffs seeking
reinstatement the purged voters, such broad reinstatement has not been requested relief
this case and would difficult accomplish prior the 2016 General Election, especially since
early voting already underway. Rather, the better way ensure that any unlawfully removed
voters are able vote allow them cast provisional ballot that can validated
days after the election. (Doc. 89, Opinion and Order 5). The interim relief ordered (referred the APRI Exception set forth detail this Court October 19, 2016 Opinion and
Order.4
Final resolution the case schedule was stayed because the United States Supreme Court
granted Defendant Petition for Writ Certiorari May 30, 2017. (See Docs. 118 and 119).
Defendant only sought review the first cause action. The United States Supreme Court issued decision June 11, 2018, reversing the Sixth Circuit and holding that Ohio Supplemental
Process does not violate the NVRA. Husted Philip Randolph Institute, 138 Ct. 1833, 1848
(2018). The Supreme Court held that Ohio Supplemental Process follows subsection (d) the important note, that during the pendency this lawsuit, not only has Secretary Husted not executed
the Supplemental Process and removed any registered voters, but has allowed any removed voters
vote via provisional ballot, subject confirmation address. During the elections where this APRI
Exception was place, total 7,798 voters voted via provisional ballot pursuant this process. All these voters who took advantage this opportunity vote although their name had been removed from
the voter registration rolls, were placed back the registration roll. (Doc. 133-4, Damschroder Decl. 20).
Case: 2:16-cv-00303-GCS-EPD Doc 140 Filed: 10/10/18 Page: PAGEID 24735
letter. undisputed that Ohio does not remove registrant change-of-residence ground
unless the registrant sent and fails mail back return card and then fails vote for
additional four years. Id. 1842.
II.
STANDARD REVIEW
The parties are seeking final judgment and permanent injunction the remaining issue this case, Plaintiff second cause action. 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, [a] plaintiff seeking permanent injunction must demonstrate that
has suffered irreparable injury, there adequate remedy law, that, considering the balance hardships between the plaintiff and defendant, remedy equity warranted, and that
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)). 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). 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.
Case: 2:16-cv-00303-GCS-EPD Doc 140 Filed: 10/10/18 Page: PAGEID 24736
III.
DISCUSSION
The only remaining issue pending before the Court Plaintiffs Second Cause Action the Amended Complaint regarding whether the confirmation notice (Ohio Secretary State
Form 10-S)5, used during the Supplemental Process, violates Section the National Voter
Registration Act 1993, U.S.C. 20507. Plaintiffs argue that the confirmation notice used
Ohio the Supplemental Process legally deficient. Defendant, the other hand, argues that
Plaintiffs claim with respect the confirmation notice are barred for three reasons: Plaintiffs
did not fulfill the NVRA mandatory notice requirement; waiver; and estoppel.
Additionally, Defendant and Amicus Public Interest Legal Foundation argue that laches bars
Plaintiffs claim the relief sought. Alternatively, Defendant argues that Plaintiffs second claim
fails the merits. The Court will address these arguments turn.
Defendant Procedural and Jurisdictional Arguments
NVRA Mandatory Notice Requirement
Defendant argues that the NVRA requires Plaintiffs provide Ohio with opportunity attempt compliance before facing litigation and failed so. Assn. Comm. Orgs. for
Reform Now Miller, 129 F.3d 833, 838 (6th Cir. 1997). Plaintiffs respond that they sent notice
letters Defendant more than days prior filing suit all that was required them since the
alleged violation occurred within 120 days federal election. (Doc. 139, Pls. Rep. 2).
The current version the confirmation notice Form No. 10-S-1 implemented June 2018. (See Doc.
133-15). Prior versions the confirmation notices were referred Form No. 10-S. (See Doc. 133-13,
compilation 2007 through 2015 confirmation notices). Prior 2016, single confirmation notice was
used for both the NCOA and Supplemental Processes. Today, the Secretary State uses two different
confirmation notices. Form No. 10-S-2 sent individuals who move in-county and fill out change
address form with the U.S. Postal Service. Form No. 10-S-1 used for all other individuals receiving
notices pursuant the NCOA and Supplemental Processes. (Doc. 133-4, Damschroder Decl. 13).
Case: 2:16-cv-00303-GCS-EPD Doc 140 Filed: 10/10/18 Page: PAGEID 24737
The NVRA creates private right action for individuals whose rights under the statute
are violated. See U.S.C. 20510. The NVRA, however, requires claimants take certain
steps before filing action. First, person who aggrieved violation this Act may
provide written notice the violation the chief election official the State involved. Id.,
20510(b)(1). Second, aggrieved person must wait days after the State officers receipt
notice (or wait days the violation occurred within 120 days before election for Federal
office), and, the violation not corrected, the person may then bring civil action federal
court for declaratory injunctive relief with respect the violation. Id., 20510(b)(2). If,
however, the violation occurred within days before the date election for Federal office,
the aggrieved person need not provide notice the chief election official the State under
paragraph (1) before bringing civil action under paragraph (2). Id., 20510(b)(3); see also True
the Vote Hosemann, Supp. 693, 713 (S.D. Miss. 2014).
Defendant acknowledges receipt letter dated December 17, 2015, from Plaintiffs
counsel behalf the Ohio Philip Randolph Institute. this letter, APRI notifies Ohio that
the Supplemental Process violates Section 8(b) the NVRA and specifically states, [t]his letter
serves notice pursuant U.S.C. 20507. (Doc. 133-8). However, this letter did not request
specific changes the confirmation notice. Then, February 23, 2016, Plaintiffs counsel,
behalf the Northeast Ohio Coalition for the Homeless NEOCH sent another letter notifying
the Secretary that the confirmation notice that Ohio currently sends voters under both the
Supplemental Process and Ohio National Change Address NCOA roll-maintenance
process referred SOS Form 10-S does not comply with the requirements Section
8(d)(2) the NVRA. (Doc. 133-6). This letter was sent days before Plaintiffs initiated this
lawsuit April 2016. (Doc. 1). For his part, Plaintiff Larry Harmon failed send any letter
Case: 2:16-cv-00303-GCS-EPD Doc 140 Filed: 10/10/18 Page: PAGEID 24738 otherwise provide notice Defendant that the confirmation notice was deficient, thereby
depriving Defendant the opportunity remedy the alleged violations before facing litigation.
Defendant argues that Plaintiffs did not wait the required days before initiating this
lawsuit and they failed inform the State what needed avoid lawsuit. Additionally,
Defendant asserts that [a] warning letter cannot too vague such that the recipient does not
have opportunity attempt compliance before facing litigation. (Doc. 133, Def. Mot. (citing Scott Schedler, 771 F.3d 831, 836 (5th Cir. 2014))).
The Court concerned with Plaintiffs failure provide adequate and detailed requests
remedy the confirmation notice timely manner. The purpose the notice requirement
afford the State opportunity cure the deficiency and/or remedy the alleged violation before
court intervention becomes necessary. Notably, the State altered the form and content the
confirmation notice after Plaintiffs filed the current lawsuit and fully articulated their grievances
with the confirmation notice. The vague nature Plaintiffs pre-litigation notice and Mr.
Harmon failure provide any notice all potentially deprived Defendant any meaningful
notice Plaintiff specific alleged violations, and thus, the opportunity attempt compliance
prior litigation.
However, Defendant now, the eleventh hour, raising this issue for the first time.
Defendant has made much the fact that Plaintiffs have been dilatory seeking relief their
second claim, but the same true Defendant where has failed raise this standing issue
prior this stage litigation. There question that Mr. Harmon failed comply with the
notice requirement and most likely lacks standing. Therefore, out abundance caution, the
Court will not dismiss Plaintiff Harmon the other Plaintiffs claims this ground, but instead
will address both parties arguments the merits.
Case: 2:16-cv-00303-GCS-EPD Doc 140 Filed: 10/10/18 Page: PAGEID 24739
Waiver
Defendant asserts that Plaintiffs waited until losing the U.S. Supreme Court seek
their dramatic theories for relief based the format the confirmation notice. (Doc. 133, Def.
Mot. 5). Defendant takes issue with Plaintiffs now seeking full reinstatement removed voters
and other relief, based their second claim, which the same relief they previously sought based their primary, unsuccessful Supplemental-Process claim. Defendant argues that Plaintiffs
initially only sought revised confirmation notice that complies with the NVRA the remedy for
the second claim their Amended Complaint. Based these circumstances, Defendant argues
that Plaintiffs have waived their right pursue the relief they are now seeking for their second
claim.
Waiver the voluntary relinquishment known right conduct that warrants
inference relinquishment that right. Burlington Ins. Co. Eden Cryogenics LLC, 126
Supp. 947, 963 (S.D. Ohio 2015) (Sargus, C.J.). Defendant correct that Plaintiffs Prayer
for Relief, they sought injunctive relief (c) directing the Defendant adopt new Form 10-S that
complies with the requirements the NVRA. (Doc. 37, Am. Compl. 18). However, Plaintiffs
did assert the following their Second Cause Action:
61. consequence its legally deficient confirmation notice, which does not
provide date which voters must return the form information about how
re-register voter has moved outside the county state (despite the statute
clear requirements that this information included), and which requires
information that not authorized federal law, Defendant has violated and
continues violate Section the NVRA. U.S.C.A. 20507(d)(2).
62. The failure the Defendant comply with Section the NVRA has harmed
Plaintiff Harmon, Organizational Plaintiffs members, and has injured and will
continue injure the Organizational Plaintiffs because the additional resources
invested voter registration and properly educating Ohioans who have not voted
since 2008 that they have likely been purged. Remediation these ongoing
violations will permit the Organizational Plaintiffs allocate their scarce resources
Case: 2:16-cv-00303-GCS-EPD Doc 140 Filed: 10/10/18 Page: PAGEID 24740 their other important activities and will ensure their members are not
disenfranchised pursuant unlawful roll-maintenance procedure.
63. Plaintiffs are aggrieved the Defendant past and continuing violations the
NVRA through its use SOS Form 10-S and have adequate remedy law.
Declaratory and injunctive relief required remedy past and continuing
violations the NVRA and ensure the Defendant future compliance with the
NVRA.
(Id. 17).
The Court acknowledges Defendant arguments and agrees that the extensive briefing these issues, Plaintiffs focus was seeking reinstatement securing the right vote for
those individuals removed from the voter registration rolls through the alleged unlawful operation Ohio Supplemental Process. However, Plaintiffs clearly pled the second cause action,
set forth its entirety above. This not case where the claim was not pled, but more question whether the relief now sought was previously requested.
Rule 54(c) the Federal Rules Civil Procedure instructs district courts grant the
relief which each party entitled, even the party has not demanded that relief its pleadings.
Fed. Civ. 54(c). This rule affords district courts flexibility crafting relief that plaintiff
may recover valid claim, regardless counsel pleading errors. See Colonial Refrigerated
Transp., Inc. Worsham,705 F.2d 821, 825 (6th Cir. 1983). Therefore, Defendant received fair
notice Plaintiffs claim and general theory relief. Accordingly, Plaintiffs did not waive their
right pursue this claim.
Equitable Estoppel
Defendant next argues that equitable estoppel bars Plaintiffs pursuit their second cause action. Equitable estoppel precludes party from asserting certain facts where the party,
his conduct, has induced another change his position good faith reliance upon the party
conduct. State rel. Cities Serv. Orteca, Ohio St. 295, 299 (1980). Defendant contends
Case: 2:16-cv-00303-GCS-EPD Doc 140 Filed: 10/10/18 Page: PAGEID 24741
that Plaintiffs never told Ohio that they would pursue their new theories relief and Ohio relief Plaintiffs representations (and lack thereof). (Doc. 133, Def. Mot. 9).
Plaintiffs respond that they sought reinstatement all voters purged under the
Supplemental Process their Prayer for Relief. Plaintiffs generally assert that they have been
unwavering and consistent with their articulated intention seek this relief the Notice Claim.
(Doc. 139 3).
Although Plaintiffs claim that the confirmation notice violates the NVRA not new
claim and Plaintiffs have not sought amend their Complaint, the crux Defendant argument that the relief requested was not timely raised. the Public Interest Amicus brief,
summarizes, [a]lthough APRI and NEOCH challenge Ohio confirmation notice not itself
untimely, the relief requested is. (Doc. 135 5). The Court agrees that Plaintiffs primary relief
sought the second cause action was revised confirmation notice and the current broad relief
sought was primarily tied the first claim, that the supplemental process violated the NVRA.
However, Defendant was still notice that Plaintiffs intended pursue this claim. Further,
Plaintiffs argue, and the Court agrees, that Defendant attempt impose heightened pleading
standard requiring Plaintiffs articulate which form relief sought for which cause action, unsupported the Federal Rules and must rejected. (Doc. 139 4). The second claim
was not abandoned during the prior briefing and decisions issued this case. Accordingly,
equitable estoppel not applicable this case.
Laches and other Procedural Arguments
Defendant and Amicus Public Interest argue that laches bars Plaintiffs pursuit their
second cause action and the specific relief requested. Laches negligent and unintentional
failure protect one rights Elvis Presley Enters. Elvisly Yours, Inc., 936 F.2d 889, 894
Case: 2:16-cv-00303-GCS-EPD Doc 140 Filed: 10/10/18 Page: PAGEID 24742
(6th Cir. 1991). [L]aches not mere matter time; but principally question the
inequity permitting the claim enforced. Ford Motor Co. Catalanotte, 342 F.3d 543,
550 (6th Cir. 2003) (quoting Holmberg Armbrecht, 327 U.S. 392, 396 (1946)). Laches bars
claim when (1) the plaintiff delayed unreasonably asserting his rights and (2) the defendant
was prejudiced this delay. ACLU Ohio, Inc. Taft, 385 F.3d 641, 647 (6th Cir. 2004).
Defendant states that Plaintiffs litigated for well over two years before raising their new
legal theories, Ohio prejudice. (Doc. 133 19). And Amicus Public Interest states that
[w]aiting over two years bring this claim and requested relief certainly justifies this Court
refusing grant the requested relief. (Doc. 137 6). Plaintiffs respond that Defendant has
known from the start exactly what relief Plaintiffs were seeking, and his assumptions about which
cause action would support that relief are irrelevant when Plaintiffs have shown they are entitled the relief based the Notice Claim. (Doc. 139 5).
This Court recognizes that the extreme relief sought Plaintiffs their only remaining
claim could potentially viewed end run around the Supreme Court decision and final
attempt have the previously removed voters reinstated. However, set forth above with respect Defendant other procedural arguments, Plaintiffs did sufficiently pursue the second cause
action and did not abandon throughout the course this litigation. Therefore, laches not
applicable this case.
Defendant also references several equitable and public interest considerations basis for
denying Plaintiffs new claim for relief. Defendant asserts that the Eleventh Amendment bars
Plaintiffs claims because Plaintiffs not claim any ongoing violation. Green Mansour, 474
U.S. 64, (1985) There claimed continuing violation federal law, and therefore
occasion issue injunction. (Doc. 133 20). Further, Defendant states that under the
Case: 2:16-cv-00303-GCS-EPD Doc 140 Filed: 10/10/18 Page: PAGEID 24743
canon constitutional avoidance, courts interpret statues avoid constitutional questions.
Davet Cleveland, 456 F.3d 549, 554 (6th Cir. 2006). (Id.). And finally, federalism weighs
heavily against Plaintiffs claims. See Ohio Democratic Party Husted, 834 F.3d 622 (federal
courts should not become entangled, overseers and micromanagers, the minutiae state
election processes without careful consideration. (Id.).
The Court agrees that Plaintiffs are not claiming ongoing violation this time, however, the time they filed the Amended Complaint and when the Sixth Circuit issued its decision, there
was still ongoing violation with respect the confirmation notice. This Court previously found
that prior revisions the confirmation notice Secretary Husted mooted Plaintiffs claims
this issue, but the Sixth Circuit disagreed. Phillip Randolph Inst., 838 F.3d 715 (finding that
the district court erred holding that Plaintiffs claims regarding Ohio confirmation notice are
moot Therefore, due the pendency this case for over two years and the important nature this case, the Court believes decision the merits warranted.
Merits Plaintiffs Second Claim
Ohio Confirmation Notice
Plaintiffs argue that since the Supplemental Process was implemented Ohio 1994, the
confirmation notice sent part this process violated Section the NVRA three ways: (1)
the confirmation notice did not notify voters the deadline respond avoid adverse
consequences their registration status; (2) the confirmation notice failed inform voters the
consequences failing respond; and (3) the confirmation notice did not provide information
how voter registered Ohio could remain eligible vote the person moved another state.
(Doc. 132, Pls. Mot. 3). addition Plaintiffs enumerated arguments, they assert that the
more recent confirmation notices were flawed fourth way, [t]hey required recipients fill
out the same five fields information name, address, dare [sic] birth, proof identify, and
Case: 2:16-cv-00303-GCS-EPD Doc 140 Filed: 10/10/18 Page: PAGEID 24744
signature under penalty perjury required the Ohio voter registration form. (Id. 3).
Defendant argues that the confirmation notices sent the Secretary complied with the NVRA.
The Court will consider the merits arguments turn.
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.
(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
Case: 2:16-cv-00303-GCS-EPD Doc 140 Filed: 10/10/18 Page: PAGEID 24745
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.
(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.
Case: 2:16-cv-00303-GCS-EPD Doc 140 Filed: 10/10/18 Page: PAGEID 24746
(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) (emphasis added).
The parties acknowledge that the format and content the confirmation notice has
changed since its inception 1994. The form maintained and edited the Ohio Secretary
State and then distributed the county boards elections via Directive from the Secretary
State. The forms issue this case are referenced the docket SOS Form 10-S. (See Doc.
42-16 (07/07 version); Doc. 42-15 (04/11 version); Doc. 42-14 (05/13 version); and Doc. 42-13
(03/15 version)).
Plaintiffs assert that none the prior Forms 10-S complied with the NVRA until the most
recent confirmation notice issued the Secretary State Form No. 10-S-1 June 2018.
(See Doc. 132-5). The significant change the most recent form the inclusion the
information how register vote another state, remedying the deficiency specifically cited the Sixth Circuit. Prior the June 2018 revision, the July 2016 version the confirmation
notice corrected all Plaintiffs challenges with the exception the moving-out-of-state issue.
(See Doc. 56-2; see also Doc. 66, June 29, 2016 Opinion and Order).
Deadline Return Confirmation Notice
Turning first Plaintiffs argument that the confirmation notice didn notify voters the
deadline respond the confirmation notice avoid removal from the voter registration rolls.
Plaintiffs argue that the confirmation notice must say that must returned days before
Election Day. The prior versions the confirmation notice instructed voters take immediate
Case: 2:16-cv-00303-GCS-EPD Doc 140 Filed: 10/10/18 Page: PAGEID 24747
action and did not include specific return date. Plaintiffs argue that this language vague and
misleading. This Court disagrees. Defendant argues, and the Court agrees, that the word should the NVRA gives states flexibility.
The relevant language U.S.C. 20507(d)(2)(A) states that the registrant should
return the card not later than the time provided for mail registration under subsection (a)(1)(B). the voters receipt the confirmation notice took immediate action, i.e., promptly returning
the confirmation notice, then there would risk removal registered voter.
Further, voter failure return the card days before Election Day does not trigger
any action the Secretary. The individual remains registered voter but marked inactive the voter registration database pursuant Ohio Supplemental Process.
(Doc. 38-2,
Damschroder Decl., 20). Although designated inactive, the individual has all the rights otherwise active voter, including the ability cast regular ballot any election. (Id.). If,
however, after four years (including two federal general elections) and voter activity, then the
individual will removed from the list eligible voters. (Id.). Therefore, the date days
before Election Day not necessary element, but rather the statute suggests the confirmation
notice should returned that date.6 Accordingly, the Court does not find that the prior versions the individual returns the confirmation notice any time, even after the days prior the election
time frame, he/she will returned active status. Further, Secretary Husted has issued number
directives help voters who may not have returned the confirmation notice and facing cancellation
returned active status and remain the voter registration rolls. Directive 2018-21 explains new
automatic process ensure that when Ohioan renews his her driver license state identification
card through the Bureau Motor Vehicles BMV and provides the same address the one included
his her voter registration that will serve confirmation the individual address for list maintenance
purposes and the individual will have his her status moved from active-confirmation active-active
Directive 2018-22 instructs board mail additional notice days prior cancellation any
voters impacted. This last-chance mailer intended encourage individuals respond and remain
active voters. And Directive 2018-21-02 extends 2018-21 also apply retroactively individuals who
have appeared the BMV since January 2011. Together with Directive 2018-21, Directive 2018-21-02
will re-set active status all nearly all still-eligible voters the pipeline for removal based
inactivity. (Doc. 133-4, Damschroder Decl. 7(xxiii)).
Case: 2:16-cv-00303-GCS-EPD Doc 140 Filed: 10/10/18 Page: PAGEID 24748 the confirmation notice stating that the voter should take immediate action violation
the NVRA.
Consequence Failure Return Confirmation Notice
Plaintiffs next challenge the confirmation notice that did not inform voters the
consequence failing respond. Plaintiffs assert that the confirmation notice inaccurately stated
that your voter registration Ohio may cancelled pursuant federal and state law (Docs.
42-13 and 42-14); your name may removed from the voter registration list. (Docs. 42-15 and
42-16). Plaintiffs argue that pursuant Ohio Supplemental Process and the Secretary State
Directives (2011 2015), that they will removed. However, Plaintiffs fail provide any
argument how this violation the NVRA. The language the NVRA does not require
that this language included the confirmation notice. fact, the language the statute itself not strong Plaintiffs argue should be, stating that the registrant should return the card.
Whether the confirmation notice stated may removed versus will removed, still
provided sufficient notice voters that they wanted remain active voter, they should
return the confirmation notice.
Plaintiffs also contend that the Sixth Circuit found that the Forms Ohio sent prior 2016
did not adequately inform voters the consequences failing respond the notice, because
the notices stated only that failure respond vote the subsequent four-year period may
result removal from the voter rolls. (Doc. 132 (APRI, 838 F.3d 703)). Plaintiffs further
summarize that, [t]he Sixth Circuit held that Plaintiffs Notice Claim was not moot because
correcting the notice prospectively did not remedy the harm voters who had already been purged
using notice which, for the reasons the court had explained the background, was blatantly
non-compliant with the NVRA. (Doc. 139 (quoting APRI, 838 F.3d 714)). Defendant
Case: 2:16-cv-00303-GCS-EPD Doc 140 Filed: 10/10/18 Page: PAGEID 24749
counters that Plaintiffs are incorrect arguing that the Sixth Circuit decided this issue. (Doc. 133 11). The Court agrees with Defendant. The aforementioned quoted section was pulled from the
Background section the APRI decision and the Sixth Circuit never included any further
discussion the merits this issue. See Core Communs. Verizon Md., No. 1:02-cv-3180JFM, 2012 U.S. Dist. LEXIS 112763, *15 (D. Md. Aug. 10, 2012) firmly established principle judicial review that statements the background section appellate opinion hold
determinative weight Accordingly, the Court does not find that the previous versions the
confirmation notice violated the NVRA this basis.
Plaintiffs generally assert that many voters were removed from the voter registration rolls
pursuant these allegedly defective forms and even more are scheduled removed who
received defective forms dating back 2013. Plaintiffs state that these voters remained perfectly
eligible vote the same address the same county where they had been registered. (Doc.
132, Pls. Mot. 4). But Plaintiffs have not alleged that these voters would not have been removed
and actually would have returned the confirmation notice the notice had contained the above
information. The fact is, these voters were mailed confirmation notice and failed return that
card otherwise take any action for four years thereafter and accordingly were lawfully removed
pursuant Ohio Supplemental Process.
Moving Another State
Plaintiffs continue argue that the older versions the confirmation notice failed
provide voters with information how voter registered Ohio could remain eligible vote the person moved another state. (Doc. 132, Pls. Mot. 3). The NVRA requires: the
registrant has changed residence place outside the registrar jurisdiction which the
Case: 2:16-cv-00303-GCS-EPD Doc 140 Filed: 10/10/18 Page: PAGEID 24750
registrant registered, information concerning how the registrant can continue eligible
vote. U.S.C. 20507(d)(2)(B).
This Court faced with the difficult task evaluating this issue when the United States
Supreme Court upheld Ohio Supplemental Process whole, set forth subsection (d)
the NVRA. The Supreme Court held that Ohio Supplemental Process follows subsection (d)
the letter. Husted Philip Randolph Institute, 138 Ct. 1848. Yet, this Court must balance
that decision with the United States Court Appeals for the Sixth Circuit more pointed decision the confirmation notice issue. The Sixth Circuit held that the NVRA requires notifying
residents who have moved out state how they can continue registered vote. Judge Siler his opinion concurring part and dissenting part stated, [a]lthough agree with the district
court that the State officials have been given onerous burden coaching out-of-state residents
through the registration process their new States residence, this what the statute requires.
APRI, 838 F.3d 717.
Following the Sixth Circuit decision, Secretary Husted added language the current
version the confirmation notice about continuing eligible vote moving out state.
The Form 10-S-1 specifically states: find information how register vote another
state,
visit
the
U.S.
Election
Assistance
Commission
Website:
www.eac.gov/voter_resources/register_to_vote.aspx.
Defendant argues that this issue has been decided and over Plaintiffs not have
standing plead behalf foreign residents and all Plaintiffs newly-alleged theories for
remedies relate voting reinstatement Ohio; voters who have moved elsewhere logically are
not included and would ineligible for the expanded APRI Exception reinstatement. (Doc.
133 12).
Case: 2:16-cv-00303-GCS-EPD Doc 140 Filed: 10/10/18 Page: PAGEID 24751
Based the plain language the NVRA and the holding the Sixth Circuit APRI, the
Defendant (the current Secretary State and future office holders) required advise voters
who have moved out state how they can continue eligible vote. The Court finds the
current version Form 10-S-1 complies with this requirement and Plaintiffs agree. Therefore,
Defendant hereby ordered continue use version the confirmation notice that
substantially similar the current confirmation notice continuing inform voters how they
can continue eligible vote even when moving out state.
Completing Certain Fields Information Confirmation Notice addition the three enumerated arguments how the confirmation notice violates
the NVRA, Plaintiffs raise one final issue with the confirmation notice they required recipients fill out the same five fields information name, address, dare [sic] birth, proof identity,
and signature under penalty perjury required the Ohio voter registration form. (Doc. 132 3). Plaintiffs take issue with requiring registered voter essentially re-register remain
the voter registration rolls.
Defendant counters that Plaintiffs own argument spotlights the trivial nature the
protests. (Doc. 133 12). Plaintiffs argue against the completion the five fields information
here, but demand comply with the requirement Section 8(d)(2) the NVRA. (See Doc.
132, Pls. Mot. the Forms employed begin the removal process must contain the
information and meet the other requirements set forth Section 8(d)(2) )).
Section 8(d)(2) the NVRA requires the voter state his her current address the
confirmation notice. U.S.C. 20507(d)(2). Defendant asserts, and the Court agrees, that the
NVRA does not prescribe the precise language State must use its confirmation card. (Doc.
133 13). There nothing the NVRA that requires the additional information, nor anything
Case: 2:16-cv-00303-GCS-EPD Doc 140 Filed: 10/10/18 Page: PAGEID 24752
that bars requiring the additional information.
Defendant references the Federal Election
Commission publication Implementing the National Voter Registration Act 1993
Requirements, Issues, Approaches, and Examples (hereinafter the FEC Guide (Doc. 133-12). the FEC Guide, recommends that states may want consider adopting single, all-purpose
confirmation return notice containing full name, date birth, identification number (optional),
telephone number (optional), address, recognizing that the confirmation notice needs address
individuals residing the same address, those who may have moved within the same jurisdiction,
and those who may have moved out state. (Id. 31). Further, Defendant asserts that
confirmation notices are not rejected the information requested not completed full. (See
Doc. 133 13, referencing Directive 2013-20; Wolfe Decl. (stating that the office has
never instructed boards view incomplete confirmation notice reason cancel voter
registration place the registration the track for cancellation; and Herron, Shubat Decl. and
Poland Decl. and respectively stating that cards are not rejected
identification absent)).
Therefore, based the plain language the NVRA, the Court finds that there has been violation requiring these fields information previous versions the confirmation
notice. Further, there harm voters the information not provided its entirety.
Permanent Injunction Factors
Plaintiffs have demonstrated one minor violation the NVRA, however, they have failed substantially demonstrate that they suffered irreparable injury. Defendant argues that
Plaintiffs did not adduce evidence even one single person who failed return Ohio
confirmation notice otherwise engage voter activity based the format the notice. (Doc.
133 18). Defendant continues that all Plaintiffs declarants who discussed the notice did not
Case: 2:16-cv-00303-GCS-EPD Doc 140 Filed: 10/10/18 Page: PAGEID 24753
remember ever receiving the notice. (Id. 19, citing Doc. 9-4, Harmon Decl. 10; Doc. 96, Keil Decl. Doc. 9-5 McCullough Decl. 10).
Additionally, there ongoing violation the NVRA and therefore harm others.
The only problem identified this case with respect the confirmation notice was the failure
the Secretary inform voters how they can continue eligible vote when they have moved are moving out state. These voters who have moved out state would not eligible for
any the relief Plaintiffs are seeking, whether extension the APRI Exception
reinstatement. Therefore, long the Secretary continues send version the confirmation
notice that substantially similar the current version and continues comply with the
requirements the NVRA, there harm others.
Finally, 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.
Remedy/Damages
Plaintiffs have prevailed one issue related their second cause action failure
inform voters who have moved out state how continue eligible vote. The remedy,
therefore, must limited address just that violation, i.e., must proportional the harm.
With respect this violation, Plaintiffs have not shown any individuals who received the
confirmation notice, were confused it, and therefore didn send in. All the relief requested Plaintiffs pertains eligible Ohio voters who may have been wrongfully removed from the
voter registration lists. However, there evidence that any current Ohio residents have been
harmed this minor violation. Only voters who have moved out state are subject this
Case: 2:16-cv-00303-GCS-EPD Doc 140 Filed: 10/10/18 Page: PAGEID 24754
violation and voters who have moved out state would not eligible for reinstatement Ohio
voter registration rolls. important acknowledge that Ohio leader making voting accessible its
residents. The Sixth Circuit has held that [t]he undisputed factual record shows that easy
vote Ohio. Very easy actually. Ohio Democratic Party Husted, 834 F.3d 620, 628 (6th Cir.
2016). Ohio provides twenty-two days early in-person voting and no-excuse absentee voting mail. See Ohio Rev. Code 3509; Doc. 133-4, Damschroder Decl. Ohio also sends out
absentee ballot applications registered voters. (Id. 7).
Additionally, with respect registration, 2012, Secretary Husted introduced online
option for voters change their address. September 2018, more than 552,000 Ohioans
have taken advantage this change address tool. (Id.). 2016, Secretary Husted partnered
with the Electronic Registration Information Center ERIC national, non-profit organization
with twenty-five member states whose mission improve the accuracy America voter
rolls
and
increase
access
voter
registration
for
all
eligible
citizens.
See
https://www.ericstates.org. part this partnership, 2016, Secretary Husted sent registration
notices more than 1.6 million eligible but unregistered Ohioans, including individuals who may
have had their voter registration cancelled pursuant the NCOA and/or Supplemental Process.
(Id.). And 2018, notices were sent 319,000 eligible but unregistered Ohio residents. (Id.).
Additionally, Secretary Husted issued Directive 2018-21 implementing new automatic process ensure that when Ohioan renews his her driver license state identification card through
the Bureau Motor Vehicles and provides the same address the one included his her voter
registration, that will serve confirmation the individual address for list maintenance
purposes and the individual, confirmation status, will moved active status. Finally, the
Case: 2:16-cv-00303-GCS-EPD Doc 140 Filed: 10/10/18 Page: PAGEID 24755
Secretary Directive 2018-22 instructs the boards elections mail final notice days
prior cancellation any voters impacted. short, the Court recognizes that the Secretary has
taken several proactive measures since this litigation has commenced and those measures, coupled
with the efforts organizational Plaintiffs and other voter advocacy groups, are small part
responsible for nearly 65,000 registered voters active confirmation status being moved active the last month alone. (Id.).
With respect this specific deficiency the confirmation notice, the Ohio Secretary
State hereby ORDERED continue use the current version the confirmation notice, Form
10-S-1, one that substantially similar, that specifically includes information how voter
moving out state can continue eligible vote. Sending revised confirmation notice
those who have been removed would not efficient with respect this deficiency the
confirmation notice because the affected individuals are longer Ohio residents. The Court does
find that the Secretary could add additional information the Ohio Secretary State webpage how voters Ohio can continue eligible vote when moving out state. Specifically,
the
following
webpages:
https://olvr.sos.state.oh.us/
and
https://olvr.sos.state.oh.us/NCOA/NCOA, there are sections titled HAVE YOU MOVED OUT OHIO? where the following language should added: find information how
register vote another state, visit the U.S. Election Assistance Commission website:
www.eac.gov/voter_resources/register_to_vote.aspx.
Defendant hereby ordered complete the aforementioned remedy before
November 2018.
Case: 2:16-cv-00303-GCS-EPD Doc 140 Filed: 10/10/18 Page: PAGEID 24756
IV.
CONCLUSION
Based the foregoing, Plaintiffs Motion for Final Judgment GRANTED PART
AND DENIED PART and Defendant Motion for Final Judgment GRANTED PART
AND DENIED PART.
Final judgment shall entered favor Defendant all but one issue the
requirements inform voters who have moved out state how continue eligible vote.
The Clerk this Court shall remove Documents 132 and 133 from the Court pending
motions list and close this case. ORDERED.
__/s/ George Smith
___
GEORGE SMITH, JUDGE
UNITED STATES DISTRICT COURT