Mullins v. Cole, CIVIL ACTION NO. 3:16–9918
| Decision Date | 21 November 2016 |
| Docket Number | CIVIL ACTION NO. 3:16–9918 |
| Citation | 218 F.Supp.3d 488 |
| Parties | Allison MULLINS, on behalf of herself and all others similarly situated, Plaintiff, v. Karen COLE, in her official capacity as Clerk of Cabell County, Defendant. |
| Court | U.S. District Court — Southern District of West Virginia |
Anthony J. Majestro, Powell & Majestro, Jamie Lynn Crofts, ACLU of West Virginia Foundation, Charleston, WV, Dale E. Ho, Sean J. Young, American Civil Liberties Union Foundation, Inc., New York, NY, for Plaintiff.
Jacob D. Layne, Wendy E. Greve, Pullin Fowler Flanagan Brown & Poe, Charleston, WV, for Defendant.
On Thursday, October 20, 2016, Plaintiff Allison Mullins filed a Verified Class Action Complaint against Defendant Karen Cole, in her official capacity as Clerk of Cabell County, West Virginia. With her Complaint, Plaintiff Mullins filed an Emergency Motion for a Temporary Restraining Order (ECF No. 3), and a Motion for Class Certification. ECF No. 5. On Friday, October 21, 2016, Defendant was personally served a copy of the Complaint. The Court also entered an Order notifying Defendant Cole of the action and the pending motions, and directed her to file a Response to the Emergency Motion by noon on Monday, October 24, 2016. The Court set this matter for a preliminary injunction hearing on Tuesday, October 25, 2016. Defendant Cole timely filed her Response, and Plaintiff Mullins filed a Reply prior to the hearing on Tuesday. Upon consideration of the parties' arguments, the Court granted the preliminary injunction.
In West Virginia, the Secretary of State has established a state-wide online voter registration system pursuant to her statutory authority. See W. Va. Code § 3–2–5(a)(3) (2016) (). In order to register or update a registration using the online system, a West Virginia resident must have a West Virginia driver's license or state identification card and his or her signature must be on file with the West Virginia Division of Motor Vehicles (DMV) or another approved state database. W. Va. Code § 3–2–5 (). In order to complete an application, a resident logs on to the system and answers a series of questions that confirms his or her eligibility to register. If eligible, the resident then completes the application by entering his or her name, address, birthdate, citizenship, driver's license or state identification number, and the last four digits of their social security number. See West Virginia Secretary of State, Register to Vote, https://ovr.sos.wv.gov/Register/Landing (last visited Nov. 16, 2017). The applicant's signature is then transferred from the DMV or other approved database.
The filing deadline for registering to vote in West Virginia for the 2016 general election was October 18. Of the fifty-five counties in West Virginia, all but Cabell County allow residents to register using the online system. In Cabell County, however, when a resident attempts to register through the online system, Defendant Cole sends the applicant a letter with a paper registration application to complete. The letter provides:
Exemplar of Letter (dated March 21, 2016), ECF No. 1–2. Despite the representations made in the letter, it is undisputed that the paper registration form requires the applicant to provide virtually the same information as the online system. One difference is that the online system requires both a driver's license number1 and the last four digits of the applicant's social security number, while the paper registration form only requires the applicant to provide a driver's license number or the last four digits of the applicant's social security number. Thus, the online system actually requires more verification than the paper registration form. Another previous difference is that the paper application form had an option to include a phone number and e-mail address, but the online system originally did not have a place to input this information. Defendant Cole testified that a few months ago the online system began including this information. Additionally, irrespective of whether phone numbers or e-mail addresses were included or not, an applicant is not required to provide this information in order to register. Lastly, an individual completing a paper application must sign the form, whereas the online system transfers the signature from the DMV records or a state approved databank.
At the hearing held on October 25, Defendant Cole testified that her office would accept paper applications after October 18 so long as the applicant completed the online registration process prior to the deadline. In order to be registered or to make changes to a registration, Defendant Cole testified that an applicant could mail the paper registration application back to her office, personally deliver the application to her office, or could take the completed application to his or her polling place, give it to an election official, and then cast a provisional ballot. Defendant Cole concedes, however, there is nothing in the letter she sends with the application that indicates to a would-be voter that he or she may personally deliver the application to her office or take the application to a polling place and vote. The only option set forth in the letter is that it must be mailed back to her office. In addition, although Defendant Cole states she writes the date an applicant applies through the online system on the paper application she sends to would-be voters, there is nothing in the letter that explains the paper registration will be considered timely if it is returned after the October 18 deadline. At the time of the October 25 hearing, Defendant Cole said there were over 2,200 individuals who had attempted to register online in Cabell County who had not yet returned a paper registration application and, therefore, were not registered to vote.
Plaintiff Mullins is a resident of Cabell County who attempted to register using the online system on October 16, two days prior to the deadline. Despite completing the online registration, Plaintiff Mullins was not registered to vote in Cabell County pursuant to Defendant Cole's policy. At the hearing, Plaintiff Mullins testified that she had not yet received a letter from Defendant Cole requiring her to fill out a paper registration application. Therefore, Plaintiff Mullins brought this action on behalf of herself and others to enjoin Defendant Cole from refusing to process the online applications and to issue a mandamus directing her to process the online voter registration applications and changes to voter registrations for all those who are otherwise qualified.
Although Plaintiff Mullins filed her motion as a request for a temporary restraining order, the Court held a full adversary hearing on the motion. Defendant Cole was served a copy of the Verified Complaint, filed a Response, and was represented by counsel at the hearing. Accordingly, in light of these facts, the circumstances of this case, and given the scarcity of time to rule upon the motion, the Court converted the action into one for a preliminary injunction at the hearing. See Daly v. Tennant , Civ. Act. No. 3:16–08981, 216 F.Supp.3d 699, 2016 WL 6156177 (S.D. W. Va. Oct. 21, 2016) (same).
In deciding whether to issue a preliminary injunction, this Court recognizes as it did in Daly that it "is an extraordinary remedy afforded prior to trial at the discretion of the district court that grants relief pendente lite of the type available after the trial." Real Truth About Obama, Inc. v. FEC , 575 F.3d 342, 345 (4th Cir. 2009), vacated , 559 U.S. 1089, 130 S.Ct. 2371, 176 L.Ed.2d 764 (2010), reinstated in part , 607 F.3d 355 (4th Cir. 2010) (citations omitted). "Granting the ultimate relief requested, even temporarily, at an early point in the case, often prior to the issues even being joined in the pleadings, seems rightly reserved for only the most compelling of cases." Dewhurst v. Century Aluminum Co. , 731 F.Supp.2d 506, 514 (S.D. W. Va. 2010) (citation omitted). In order to obtain a preliminary injunction, a party must establish four elements: "[1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest." Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (citation omitted). As such, the party seeking to obtain a "preliminary injunction must demonstrate by a clear showing that, among other things, it is likely to succeed on the merits at trial." Dewhurst , 731 F.Supp.2d at 515 (italics original; internal quotation marks and citations omitted). In this action, Plaintiff Mullins asserts that she meets these factors.
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...ed. 2013) ("[A] court may issue a preliminary injunction in class suits prior to a ruling on the merits."); see also Mullins v. Cole , 218 F. Supp. 3d 488 (S.D.W. Va. 2016) (considering harms to putative class as a whole in awarding preliminary injunction prior to class certification).Becau......