A. Philip Randolph Institute v. Larose, CASE NO. 1:20-CV-01908

493 F.Supp.3d 596

A. PHILIP RANDOLPH INSTITUTE, OF OHIO, et al., Plaintiffs,

v.Frank LAROSE, Defendant.

CASE NO. 1:20-CV-01908

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

Signed October 6, 2020

Opinion granting reconsideration Oct. 8, 2020

Mariel R. Bronen, Neil A. Steiner, Dechert, New York, NY, Brian D. Bardwell, Donald P. Screen, Subodh Chandra, Chandra Law Firm, Freda J. Levenson, ACLU of Ohio, Cleveland, OH, David J. Carey, ACLU of Ohio, Columbus, OH, Erik W. Snapp, Dechert, Chicago, IL, Ezra Rosenberg, Pro Hac Vice, Jon M. Greenbaum, Pooja Chaudhuri, Pro Hac Vice, Lawyers’ Committee for Civil Rights Under Law, Washington, DC, Lindsey Beth Cohan, Dechert, Austin, TX, Theodore E. Yale, Dechert Law Office, Philadelphia, PA, James H. Schuster, Cleveland Heights, OH, for Plaintiff A. Philip Randolph Institute of Ohio.

Mariel R. Bronen, Neil A. Steiner, Dechert, New York, NY, Brian D. Bardwell, Donald P. Screen, Subodh Chandra, Chandra Law Firm, Freda J. Levenson, ACLU of Ohio, Cleveland, OH, David J. Carey, ACLU of Ohio, Columbus, OH, Erik W. Snapp, Dechert, Chicago, IL, Ezra Rosenberg, Jon M. Greenbaum, Pooja Chaudhuri, Lawyers’ Committee for Civil Rights Under Law, Washington, DC, Lindsey Beth Cohan, Dechert, Austin, TX, Theodore E. Yale, Dechert Law Office, Philadelphia, PA, James H. Schuster, Cleveland Heights, OH, for Plaintiffs League of Women Voters of Ohio, Ohio State Conference of the NAACP, Beatrice Griffin, Sarah Rikleen, C. Ellen Connally, Matthew Nowling, Ryllie Jesionowski, Soli Collins, Marcus Germany.

Bridget Coontz, Charles M. Miller, Office of the Attorney General State of Ohio, Columbus, OH, Michael R. Sliwinski, Strongsville, OH, for Defendant.

OPINION AND ORDER

DAN AARON POLSTER, UNITED STATES DISTRICT JUDGE

On August 26, 2020, Plaintiffs, who are non-partisan civil rights organizations and individual voters, filed this suit to challenge Defendant Ohio Secretary of State Frank LaRose's (the "Secretary") Directive 2020-16, which pertains to the use of secure drop boxes for the November 3, 2020 election. On September 4, 2020, Plaintiffs filed the pending motion for preliminary injunction asking the Court to enjoin enforcement of Directive 2020-16 to the extent that it would limit county boards of elections to a single ballot drop box at the board office. Doc #: 13. The Secretary and Intervenors¹ filed briefs in opposition. Doc ##: 30, 31. Plaintiffs filed a reply. Doc #: 34. On September 23 and 24, 2020, the Court held a hearing at which time the parties presented witnesses and other evidence.

On September 25, the Court issued an Order that addressed many of the background facts relevant to Plaintiffs’ Motion. See Doc #: 77. In that Order, the Court referred to the parallel state court litigation, where the trial court had enjoined the portion of the challenged Directive. Id. at 5–6. The Court stated that the resolution of the state court litigation might moot this case if the highest court to rule upheld the trial court's decision. Id. at 6. Because a federal court should address constitutional questions only as a last resort, this Court held in abeyance any ruling on Plaintiffs’ Motion. Id. Because of the looming problem in Cuyahoga County identified at the hearing, the Court ordered the Secretary to work closely with the Cuyahoga County board to address the problem and ordered the Secretary to file a report on those efforts. Id. at 6–7.

On September 30, the Secretary filed his report, stating he had approved the portion of the Cuyahoga County board's plan to have board staff collect absentee ballots at a parking lot owned by the Cleveland Metropolitan School District that is one block away and across the street from the board office. Doc #: 79. The Secretary continued to prohibit the remaining portion of the plan, which would have permitted voters to deliver ballots to board staff at six public libraries throughout the county. See Doc #: 77 at 5. On October 2, the Court ordered the Secretary to explain why he was prohibiting board staff from receiving ballots at public libraries. See non-document Order (Oct. 2, 2020).

Later on October 2, the 10th District Court of Appeals upheld the state trial court's determination that the Secretary's interpretation of R.C. 3509.05 is not reasonable, and that the statute neither prohibits nor requires ballot drop boxes at locations other than the boards of elections. See Ohio Democratic Party et al. v. LaRose , No. 20AP432, 2020 WL 5874872 (Ohio Ct. App. Oct. 2, 2020). The Court of Appeals reversed the injunction, however, leaving in place the prohibition in Directive 2020-16 on drop boxes at locations other than board offices.

Throughout this litigation, the Secretary has asserted his belief that Ohio law prohibits off-site drop boxes. While he has advanced other justifications for that portion of Directive 2020-16 prohibiting boards of election from installing off-site drop boxes, the Court does not find any of them convincing. All three courts to have considered the matter have rejected the Secretary's interpretation of R.C. 3509.05. It is now settled law that off-site drop boxes are neither prohibited nor compelled in Ohio.

Yesterday, October 5, the Secretary issued Directive 2020-22. In his latest Directive, the Secretary authorized any board to deploy its staff to receive ballots at sites other than the board office. This means that the Cuyahoga County board may implement its intended plan to receive ballots at six public libraries, and that any other board in Ohio that votes to do so may deploy its staff to receive ballots off-site, so long as the board complies with the procedures set forth in Section II of Directive 2020-22.

While the off-site staff collection of absentee ballots may not have all the advantages of off-site drop boxes, such a program alleviates many of the concerns raised at the hearing. There is no evidence before the Court that Secretary LaRose is currently prohibiting any board from doing something it voted to do to protect the voting rights of its citizens with respect to off-site drop boxes or off-site delivery of ballots. Therefore, there is no problem that requires an injunction.

Accordingly, this case is DISMISSED WITHOUT PREJUDICE . The Court fervently hopes that now that voting has begun,² the litigation over drop boxes and off-site ballot collection will come to an end. Should it come to pass, however, that between now and November 3 any county board of elections votes to implement off-site drop boxes, Plaintiffs may refile their lawsuit, so long as the affected board is added as a party.

IT IS SO ORDERED.

OPINION AND ORDER ON RECONSIDERATION

Before the Court is Plaintiffs’ Motion for Reconsideration of the October 6, 2020 Opinion and Order. Doc #: 89 . For the following reasons, the Motion is GRANTED. The Court re-opens the case, and the Plaintiffs’ Motion for Preliminary Injunction, Doc #: 13, is GRANTED.

I. Introduction

The power of a federal judge to enjoin an order of a duly elected state official should be exercised only when it is essential to vindicate a vital constitutional right, and when all methods short of doing so have been tried. That is the case here.

As the Court has stated previously, the evidence presented at the September 23 hearing identified a very serious looming problem in Cuyahoga County which jeopardized the right to vote for many citizens who were concerned about the reliability of the mail and wanted to personally deliver their ballots. First, there are many people without cars for whom travel to the board to deliver their ballots would be very difficult. Second, the physical site of the board, with the drop box located in the middle of a small parking lot on E.30th and Chester, cannot accommodate a significant number of cars coming to deliver ballots. The evidence presented showed that the Cuyahoga County board of elections initially was considering remote drop boxes, but that after Secretary LaRose issued Directive 2020-16, the board voted 4-0 on September 14 to deploy staff to receive ballots both at a parking lot controlled by the Cleveland Metropolitan School District, located one block north and across the street from the board office, and at six public libraries throughout the county.

While the Secretary has maintained the problem in Cuyahoga County and the plan the Cuyahoga County board adopted is not a part of this litigation over drop boxes, the Court disagrees. The Cuyahoga County board only voted for its plan to deploy staff to receive ballots off-site because the Secretary had prohibited off-site drop boxes. It has been clear throughout this litigation that the main rationale behind that prohibition was the Secretary's now-rejected interpretation of Ohio law. He believed Ohio law limited personal delivery to board premises; the Ohio Court of Appeals said there is no such limitation. The Secretary is continuing to restrict boards from implementing off-site collection, and he appears to be doing so in an arbitrary manner.

On October 6, the Court issued a short order dismissing this case without prejudice after concluding that Directive 2020-22, which the Secretary issued October 5, granted permission to all county boards of election to deploy staff to receive absentee ballots at designated off-site locations, subject to procedures ensuring safety and security. As stated in that order, the Court interpreted Directive 2020-22 to permit Cuyahoga County to implement the procedure voted by the board in September to have staff receive absentee ballots at designated libraries throughout Cuyahoga County.

The Court has reviewed the e-mail the Secretary's office sent to the Cuyahoga County board on October 7 explaining that the Court incorrectly interpreted Directive 2020-22. See Doc 89-5, Ex. E to Motion for Reconsideration, Email from Bridget Coontz to Mark Musson (Oct. 7, 2020). The Court cannot reconcile the e-mail and the language of Directive 2020-22. The e-mail states that "the...