League of Women Voters of Ohio v. Blackwell

• Decision Date: 02 December 2005
• Docket Number: No. 3:05CV7309.,3:05CV7309.
• Citation: 432 F.Supp.2d 723
• Parties: LEAGUE OF WOMEN VOTERS OF OHIO, et al., Plaintiffs v. J. Kenneth BLACKWELL, Secretary of State of Ohio, and Bob Taft, Governor of Ohio, Defendants.
• Court: U.S. District Court — Northern District of Ohio

432 F.Supp.2d 723

LEAGUE OF WOMEN VOTERS OF OHIO, et al., Plaintiffs v. J. Kenneth BLACKWELL, Secretary of State of Ohio, and Bob Taft, Governor of Ohio, Defendants.

No. 3:05CV7309.

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

December 2, 2005.

COPYRIGHT MATERIAL OMITTED

Brian D. Greer, Courtney E. Smothers, David E. Kouba, Kevin M. Green, Michael R. Geske, Shelby H. Hunt, Anne P. Davis, Bruce L. Montgomery, James P. Joseph, John A. Freedman, Arnold & Porter, Benjamin J. Blustein, Jon M. Greenbaum, Jonah H. Goldman, Lawyers' Committee for Civil Rights Under Law, Deborah Liu, Elliott M. Mincberg, People for the American Way Foundation, Washington, DC, Evan S. Greene, Bert H. Deixler, Bertrand C. Sellier, Brian H. Schusterman, Caroline S. Press, Jennifer R. Scullion, Proskauer Rose, New York, NY, Jason A. Hill, Steven P. Collier, Connelly, Jackson & Collier, Toledo, OH, Brenda Wright, National Voting Rights Institute, Boston, MA, Jeffery A. Gross, Proskauer Rose, Los Angeles, CA, Robert Rubin, San Francisco, CA, for Plaintiffs.

Damian W. Sikora, Richard N. Coglianese, Rene L. Rimelspach, Office of the Attorney General, Columbus, OH, for Defendants.

ORDER

CARR, Chief Judge.

Plaintiffs League of Women Voters, et al. (LWV) bring this action against defendants J. Kenneth Blackwell, Secretary of State of Ohio, and Bob Taft, Governor of Ohio, under the Help America Vote Act (HAVA), 42 U.S.C. § 15301; 42 U.S.C. § 1983; and the Fourteenth Amendment of the Constitution of the United States. LWV alleges that Secretary Blackwell and Governor Taft administer a voting process which systematically impairs Ohio citizens' voting rights. Jurisdiction exists under 28 U.S.C. § 1331.

Pending is defendants' motion to dismiss all claims pursuant to Fed.R.Civ.P. 12(b)(1), (6), and (7), or in the alternative to transfer venue pursuant to Fed.R.Civ.P. 12(b)(3). For the following reasons, those motions will be granted in part and denied in part.

Background

The state of Ohio uses a two-tiered system to administer its elections. At the state level, the Secretary of State, Blackwell, serves as the chief elections officer and the Governor, Taft, is the chief executive officer of the state. At the county level, county boards of elections (BOEs) both implement statewide policy within their counties, and exercise substantial discretion concerning specific details of the election process.

Plaintiffs seek prospective injunctive relief to prevent a repeat of what they claim have been systemic breakdowns of the voting process in recent, and even not so recent, elections in Ohio. Specifically, they allege that in 2004 BOEs around the state: 1) failed to provide requested absentee ballots; 2) refused to count legitimate provisional ballots; 3) denied disabled voters an opportunity to vote; 4) disenfranchised voters by failing properly to maintain registration rolls; 5) misdirected voters to wrong precincts, where they could only vote provisionally; 6) improperly allocated voting machines, resulting in substantial delays at polling places and causing eligible voters to leave without voting; 7) improperly purged voters from registration rolls; 8) denied voters the opportunity to cast secret ballots; 9) improperly barred voters who wore clothing supporting candidates; and 10) failed to provide functional voting machines.¹ All these problems, LWV argues, foreseeable resulted from Ohio's two-tiered election system and Secretary Blackwell's and Governor Taft's actions and failures to act.

LWV contends, moreover, that the problems of the 2004 election are not new to Ohio's election system. They point to breakdowns in Ohio elections dating to at least the early 1970s, and thus references a 1973 General Accounting Office report noting significant problems in the administration of elections in Ohio.

Consequently, LWV believes the problems with "Ohio's voting system are pervasive, severe, chronic, and persistent—and will continue absent [] declaratory and injunctive relief."

Discussion

LWV has brought three counts against the defendants under 42 U.S.C. § 1983. First, they allege that Secretary Blackwell and Governor Taft, as officers of the state, have maintained a voting system without sufficiently uniform standards and processes to ensure equal access to full exercise of the franchise. An ability or inability to vote, plaintiffs contend, depends solely and unconstitutionally on where electors happen to live. LWV claims this system violates plaintiffs' equal protection rights under the Fourteenth Amendment of the Constitution.

Plaintiffs' second count alleges substantive due process violations. LWV recites several impediments confronting Ohioans seeking to vote in November, 2004. In addition, plaintiffs' third count asserts that Blackwell and Taft violated Ohioans' procedural due process rights by administering an election system that takes significant action and makes meaningful decisions without providing citizens with either notice or the opportunity to challenge those actions or decisions. Plaintiffs claim these due process violations foreseeably resulted from defendants' actions and inactions at the state level.

Finally, LWV claims that defendants implemented a statewide voter registration system that violates the Help America Vote Act (HAVA). 42 U.S.C. § 15483.

In their motion to dismiss, defendants argue that: 1) LWV has not stated claims on which relief may granted; 2) two organizational plaintiffs lack standing; 3) plaintiffs have not joined necessary parties; and 4) the doctrine of claim preclusion bars plaintiffs' causes of action. In the alternative, defendants request a transfer of venue to the Southern District of Ohio.

I. Plaintiffs State Claims On Which Relief May be Granted.

Prior to filing an answer, a defendant may file a motion to dismiss for failure to state a claim on which relief may be granted. Fed.R.Civ.P. 12(b)(6). If the plaintiffs could not prevail "under any set of facts that could be proved consistent with the allegations," then the claim must be dismissed. Swierkiewicz v. Sorema, 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002).

The Federal Rules do not require plaintiffs to set out the facts underlying their claims in detail. Rather, they need only provide "a short plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). Particularly in civil rights matters, a court may not impose any heightened pleading requirements. Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coord. Unit, 507 U.S. 163, 168-69, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). Further, a court must construe the complaint in a light most favorable to plaintiffs and accept all the factual allegations and permissible inference from the allegations as true. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). However, a court is "not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986).

A. Equal Protection

Put simply, LWV contends that defendants' election system provides different voting rights to different citizens based solely on where those citizens happen to reside and vote. Some citizens get short lines, properly functioning voting machines, well trained and informed poll workers, accurate registration information, and the opportunity to cast unencumbered absentee or proper provisional ballots. Other citizens, due to the vagaries of residence and registration, encounter long lines, defective voting machines, ill-trained and uninformed poll workers, inaccurate registration information, and absentee or provisional ballots that are ultimately deemed invalid.

If LWV's allegations are well founded, defendants may be depriving citizens of the franchise depending on where they live in violation of the equal protection clause. see U.S. v. Mosley, 238 U.S. 383, 386, 35 S.Ct. 904, 59 L.Ed. 1355 (1915) (holding a state may not deprive citizens of their vote based on where they live).

Just as a state may not directly condition the franchise on one's place of residence, one's place of residence cannot cause his or her vote to be cheapened or devalued. see Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). (holding that Alabama violated citizens' due process rights by apportioning legislative districts to minimize the electoral strength of a class of voters).

Equal protection is likewise violated where the state dilutes the votes of some voters by imposing barriers to the ability or opportunity to vote. Ury v. Santee, 303 F.Supp. 119 (N.D.Ill.1969) (defendants' failure to provide adequate voting facilities that resulted in long lines and failure to provide sufficient number of trained poll workers impaired citizens' rights to vote and violated equal protection clause).

Inaction that diminishes the right to vote equally may be as actionable as direct and overt acts treating the franchise unequally. A state having power to ensure uniform treatment of voters cannot adopt policies leading to disparate treatment of those voters and thereafter plead "no control" as a defense. Bush v. Gore, 531 U.S. 98, 109, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000) (holding that Florida Supreme Court's statewide recount order violated equal protection clause because the Court had the power to assure uniformity and did not exercise that power to guarantee equal treatment and fundamental fairness). A state's failure to exercise such power, where such inaction foreseeably impairs the fair and equal exercise of the franchise, gives rise to an equal protection claim. Id.

Secretary Blackwell and Governor Taft respond that if voters had any specific problems on November 2, 2004, they should seek to redress and resolve those problems with the local BOEs.

This contention misconstrues the complaint. A possible cause of action against the BOEs would not address and does...