Ohio A. Phillip Randolph Inst. v. Husted

350 F.Supp.3d 662

OHIO A. PHILLIP RANDOLPH INSTITUTE, et al., Plaintiffs,

v.Jon HUSTED, Ohio Secretary of State, Defendant.

Case No. 2:16-cv-303

United States District Court, S.D. Ohio, Eastern Division.

Filed October 10, 2018

Paul Frederick Moke, Paul Moke, Attorney at Law, Wilmington, OH, Cameron Bell, Pro Hac Vice, Stuart C. Naifeh, Pro Hac Vice, Naila S. Awan, Demos, New York, NY, Chiraag Bains, Demos, Washington, DC, Daniel P. Tokaji, The Ohio State University Moritz College of Law, Columbus, OH, Freda J. Levenson, ACLU of Ohio, Cleveland, OH, Richard Burt Saphire, University of Dayton, Dayton, OH, for Plaintiffs.

Steven T. Voigt, Heather L. Buchanan, Ohio Attorney General's Office Constitutional Offices Section, Columbus, OH, for Defendant.

OPINION AND ORDER

GEORGE C. SMITH, JUDGE

This matter is before the Court on the parties cross-motions for final judgment on the remaining claim in this case (Doc. 132 and 133).¹ Additionally, Plaintiffs submitted a Reply brief (Doc. 139). The parties have agreed to submit all remaining legal arguments and the requested relief sought in their merits brief for final adjudication of this matter. Additionally, Amicus Judicial Watch, Inc. and Amicus Public Interest Legal Foundation have filed amicus briefs in support of Defendant Jon Husted. (See Docs. 137 and 138). After careful review of the parties' arguments, the Court GRANTS IN PART AND DENIES IN PART Plaintiffs' Motion and GRANTS IN PART AND DENIES IN PART Defendant's Motion.

I. BACKGROUND

Plaintiffs Ohio A. Philip Randolph Institute ("Randolph Institute"), the Northeast Ohio Coalition for the Homeless ("NEOCH"), and Larry Harmon (collectively "Plaintiffs") initiated this case on April 6, 2016, seeking injunctive relief to prevent future removal of registered voters from the voter registration rolls pursuant to, inter alia , Ohio Secretary of State Directive 2015-15.² The last time any names were removed from the voter registration list pursuant to Ohio's Supplemental Process was in 2015. (Doc. 80-1, Damschroder Declaration at ¶ 21). Those individuals removed in 2015 failed to "respond to confirmation cards and failed to vote or engage in voter activity" or otherwise communicate with the board of elections, since March 1, 2009. (Id. at ¶ 21–22). The next scheduled Supplemental Process will be after the November 2018 election. (Doc. 133-3, Direction 2018-20).

One named individual Plaintiff, Larry Harmon, has resided at the same address in Portage County, Ohio for approximately 15 years. Mr. Harmon voted in the 2004 and 2008 Presidential elections, but did not vote, or engage in any voter activity, from 2009 through 2015. In November 2015, Mr. Harmon went to the polls on Election Day to vote, but was told that his name did not appear in the poll book of registered voters. In fact, Mr. Harmon had been removed from the Portage County voter registration rolls pursuant to Ohio's current practices and procedures for maintaining accurate voter rolls. Mr. Harmon does not recall receiving a confirmation notice to confirm his voter registration.

Defendant Ohio Secretary of State, Jon Husted ("Secretary Husted") is Ohio's chief election officer and is charged with management of voter registration and election administration throughout the state. See Ohio Rev. Code § 3501.04. Ohio law requires the Secretary of State to adopt "[a] process for the removal of voters who have changed residence," which is required to use information from the U.S. Postal Service's National Change of Address program (the "Ohio NCOA Process"). Ohio Rev. Code §§ 3501.05(Q) ; 3503.21. In addition to the Ohio NCOA Process, Ohio also uses a supplemental process to combat voter roll inaccuracies brought about by the frequent occurrence of voters changing addresses without notifying the United States Postal Service (the "Ohio Supplemental Process"). The difference between the two processes is how a voter is identified to receive a confirmation notice. Under the Ohio NCOA Process, the United States Postal Service's program indicates that a voter has a forwarding address on file. Under the Ohio Supplemental Process, a voter is notified following a two-year period of non-voting.

Once a voter is identified under either process, a confirmation notice is sent to the voter by forwardable mail with a postage pre-paid return envelope. (Doc. 38-2, Damschroder Decl., ¶ 14). An individual who receives a confirmation notice and needs to update his or her address may do so using the State's online change of address system. (Id. at ¶ 19). Secretary Husted implemented this online change of address system in 2012. (Id. ). An individual receiving a confirmation notice may also return the postage pre-paid form free of cost through the mail. If the individual returns the confirmation notice and provides a new address, the individual's registration record is updated by the appropriate board of elections with the new address. (Id. at ¶ 20). If the individual returns the confirmation notice confirming that his or her current address is still accurate, the board notes on the individual's registration record that the confirmation notice was returned to the board and the address was confirmed. (Id. ).

If an individual fails to return the confirmation notice, fails to update his or her voter registration, and fails to engage in any other voter activity, the individual will be marked as "inactive" in the registration database. (Id. ). This "inactive" individual has all the rights of an otherwise qualified elector, including the ability to cast a regular ballot at any election. (Id. ). If, however, four years (including two federal general elections) pass without voter activity, at that time, the individual's voter registration record is removed. (Id. ).

Plaintiffs' first cause of action challenged the Ohio Supplemental Process as a violation of the National Voter Registration Act ("NVRA"), 52 U.S.C. § 20501 et seq. , which establishes the requirements that states must follow to maintain their respective voter registration rolls. 52 U.S.C. § 20507. Plaintiffs' second cause of action challenged the change of address confirmation notices mailed to voters as part of the Supplemental Process for failure to meet the standards for such forms set forth in the NVRA, 52 U.S.C. § 20507(d)(2).³

On June 29, 2016, this Court found that Ohio's Supplemental Process did not violate the NVRA and denied Plaintiffs' Motion for Summary Judgment and Permanent Injunction and entered judgment in favor of Defendant. Also, with respect to Plaintiffs' challenge to the confirmation notice, this Court held that Plaintiffs' initial challenges to Ohio's confirmation notice were mooted by the adoption of a revised form that addressed all but one of Plaintiffs' concerns; and that the revised confirmation notice (Form 10-S) was in compliance with the NVRA.

On September 23, 2016, the United States Court of Appeals for the Sixth Circuit reversed this Court, holding that Ohio's Supplemental Process violates Section 8, subsection (b)(2) of the NVRA because it sends the confirmation notice "based ‘solely’ on a person's failure to vote." A. Philip Randolph Inst., et al. v. Husted , 838 F.3d 699, 712 (2016). Additionally, with respect to the confirmation notice, the Sixth Circuit held that this Court erred by concluding that "Ohio need not provide out-of-state movers with information on how they can continue to be eligible to vote." Id. at 715.

Following remand from the Sixth Circuit and faced with the upcoming general election in November 2016, this Court granted in part and denied in part both Defendant's Motion to Implement Remedy (Doc. 72) and Plaintiffs' Motion for Temporary Restraining Order (Doc. 74) on October 19, 2016. (Doc. 89, Opinion and Order). This Court recognized: "There is no dispute that the remedy ordered by this Court will not involve the reinstatement of all voters who have been removed from the voter registration rolls. But it will allow voters who have been illegally removed to cast a 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 of the purged voters, "such broad reinstatement has not been requested as relief in this case and would be difficult to accomplish prior to the 2016 General Election, especially since early voting is already underway. Rather, the better way to ensure that any unlawfully removed voters are able to vote is to allow them to cast a provisional ballot that can be validated up to 30 days after the election." (Doc. 89, Opinion and Order at 5). The interim relief ordered (referred to as the "APRI Exception") is set forth in detail in this Court's October 19, 2016 Opinion and Order.⁴

Final resolution of the case schedule was stayed because the United States Supreme Court granted Defendant's Petition for a Writ of Certiorari on May 30, 2017. (See Docs. 118 and 119). Defendant only sought review on the first cause of action. The United States Supreme Court issued a decision on June 11, 2018, reversing the Sixth Circuit and holding that Ohio's Supplemental Process does not violate the NVRA. Husted v. A. Philip Randolph Institute , ––– U.S. ––––, 138 S.Ct. 1833, 1848, 201 L.Ed.2d 141 (2018). The Supreme Court held that "Ohio's Supplemental Process follows subsection (d) to the letter. It is undisputed that Ohio does not remove a registrant on change-of-residence ground unless the registrant is sent and fails to mail back a return card and then fails to vote for an additional four years." Id. at 1842.

II. STANDARD OF REVIEW

The parties are seeking final judgment and a permanent injunction on the remaining issue in this case, Plaintiff's second cause of action. The "standard for granting a permanent injunction is essentially the same as the standard for a preliminary injunction." United States v. Miami Univ. , 91 F.Supp.2d 1132, 1147 (S.D. Ohio 2000) (Smith,...