Nemes v. Bensinger

• Decision Date: 18 June 2020
• Docket Number: CIVIL ACTION NO. 3:20-CV-407-CRS
• Citation: 467 F.Supp.3d 509
• Parties: Hon. Jason NEMES, et al., Plaintiffs v. Carl BENSINGER, et al., Defendants
• Court: U.S. District Court — Western District of Kentucky

467 F.Supp.3d 509

Hon. Jason NEMES, et al., Plaintiffs

v.Carl BENSINGER, et al., Defendants

CIVIL ACTION NO. 3:20-CV-407-CRS

United States District Court, W.D. Kentucky, at Louisville.

Signed June 18, 2020

Christopher D. Wiest, Crestview Hills, KY, Thomas B. Bruns, Bruns, Connell, Vollmer & Armstrong, LLC, Cincinnati, OH, for Plaintiff.

Jeffery R. Derouen, John F. Carroll, Jr., Natalie Johnson, Jefferson County Attorney, Louisville, KY, for Defendants Carl Bensinger, Bobbie Holsclaw, John Aubrey, Linda Huber.

Jeffery R. Derouen, Jefferson County Attorney, Louisville, KY, Richard E. Vimont, Steven P. Stadler, Fayette County Attorney's Office, Lexington, KY, for Defendants Don Blevins, Kathy Witt, Marilyn Dishman, Daniel Miller.

Jeffery R. Derouen, Jefferson County Attorney, Louisville, KY, Jeffrey C. Mando, Adams, Stepner, Woltermann & Dusing, PLLC, Covington, KY, for Defendants Gabrielle Summe, Chuck Korzenborn, Richard Scott Kimmich, Sarah Rogers.

Daniel L. Morgan, McBrayer PLLC, Lexington, KY, Jeffery R. Derouen, Jefferson County Attorney, Louisville, KY, Taylor A. Brown, Kentucky State Board of Elections, Frankfort, KY, for Defendants Albert B. Chandler, III, Sherry Whitehouse, George Russell, Katrina Fitzgerald, Deanna Brangers, Cory Skolnick, Dwight Sears, James Lewis.

MEMORANDUM OPINION

Charles R. Simpson III, Senior Judge

This matter is before the Court on Plaintiffs Hon. Jason Nemes, James Howland, Ken Kearns, Aaron Gillum, Theodore Roberts, Tyson Hermes, Erik Hermes, and Keisha Dorsey's Emergency Motion for Restraining Order and/or Preliminary Injunction. DN 4. Defendants, Albert Chandler III, Sherry Whitehouse, George Russel, Katrina Fitzgerald, Deanna Brangers, Cory Skolnick, Dwight Sears, and James Lewis, in their official capacities as members of the Kentucky State Board of Elections; and Carl Bensinger, Bobby Holsclaw, John Aubrey, Linda Huber, Don Blevins, Kathy Witt, Marilyn Dishman, Daniel Miller, Gabrielle Summe, Chuck Korzenborn, Richard Scott Kimmich, and Sarah Rogers, in their official capacities as the respective members of the Jefferson, Fayette, and Kenton County Boards of Elections filed responses. DN 33; DN 38.

This matter is now ripe for adjudication.

The issue before this Court is not whether a hypothetical voter in Kentucky's upcoming primary election would benefit from additional polling locations. Rather, the issue is whether the challenged election procedures result in a cognizable infringement under the Constitution or an injury under the Voting Rights Act. We conclude that it does not. For the following reasons, it is apparent that Plaintiffs have not shown a likelihood of success on the merits and Plaintiffs' motions for injunctive relief will be denied.

I. Factual Background and Procedural History

This case arises from a challenge to the voting procedures for the upcoming Kentucky primary election. On March 6, 2020, Kentucky Governor Andrew Beshear declared a State of Emergency for the Commonwealth due to the global COVID-19 pandemic. Exec. Order 2020-215 (Mar. 6, 2020). The pandemic continues to affect all aspects of everyday life in the United States. On March 16, 2020, the Governor, by Executive Order and at the recommendation of Secretary of State Michael Adams, delayed the primary election originally scheduled for May 19, 2020, until June 23, 2020 ("Election Day"). Exec. Order 2020-236 (Mar. 16, 2020).

On April 23, 2020, the Secretary issued a letter to the Governor recommending the Governor implement certain procedures for the upcoming primary election. DN 1 at ¶ 46; See Letter from Secretary of State Adams to Governor Beshear (April 23, 2020) (https://governor.ky.gov/attachments/20200423_Ltr-from-Sec-of-State-Adams.pdf). Specifically, the Secretary recommended procedures relating to absentee voting, early in-person voting, and polling locations for in-person voting on Election Day. Id. For absentee voting by mail, the Secretary recommended the following relevant procedures: (1) the Board of elections promulgate emergency regulations that relax the requirements for voters to obtain an absentee ballot, id. ¶ 2–4, (2) the Board of Elections send a "non-forwarding postcard to each registered voter notifying same of the ability, and the process, to vote absentee in the June 23, 2020 elections," and "establish a secure online portal for the request of an absentee ballot by a registered voter" id. at ¶ 11–12, (3) "absentee ballot[s] postmarked on or before June 23, 2020 may be accepted until 6:00 p.m., local time, [until] June 26, 2020," and "[t]he counting of ballots must be completed by June 30, 2020." Id. at ¶ 14, 17.

Regarding in-person voting on or before Election Day, the Secretary recommended the following relevant procedures: (1) the Board of Elections "shall empower all county clerks to conduct in-person absentee voting on June 8–13, 2020, June 15–20, 2020, and June 22, 2020," and that "[i]n the conduct of in-person absentee voting, appropriate precautions shall be taken consistent with Centers for Disease Control guidance, and the State Board of Elections shall provide materials to assist in proper sanitization," id. at ¶ 5; and (2) the Board of elections "shall empower all county clerks to reduce the number of sites for in-person voting on June 23, 2020" and "[i]n the conduct of in-person voting, appropriate precautions shall be taken consistent with Centers for Disease Control guidance, and the State Board of Elections shall provide materials to assist in proper sanitization," id. at ¶ 6.

In response to the Secretary's letter, on April 24, 2020, the Governor issued an Executive Order directing the State Board of Elections to promulgate emergency regulations pertaining to the execution of the primary election. DN 1 at ¶ 46; Exec. Order 2020-296 (Apr. 24, 2020). In this Executive Order, the Governor declared "[a]ll Kentuckians should utilize absentee voting by mail for the June 23, 2020 primary election if they are able to do so." Exec. Order 2020-296 (Apr. 24, 2020) at ¶ 1. The Governor further ordered the Board of Elections to "promulgate emergency regulations to provide [ ] expanded absentee voting by mail" and "take all reasonable steps to ensure the safety of county clerks and poll workers when direct voting (not by mail) is necessary." Id. at ¶ 2–3. Specifically, the Governor ordered that the Board of Elections take the following steps to ensure the safety of county clerks and poll workers during in-person voting: (1) permit early in-person voting to begin June 8, 2020 and directing clerks to prioritize such voters by appointment, (2) provide personal protective equipment (PPE) and materials to assist in proper sanitization to clerks and poll workers, and (3) instruct county clerks to implement procedures that limit direct contact between individuals, whether poll workers or voters. Id. at ¶ 3 a–d.

On May 1, 2020, the Board of Elections issued emergency regulation 31 KAR 4:190E. See 31 KY. ADMIN. REGS. 4:190E (2020); DN 1 at ¶ 46. In promulgating this regulation, the Board of Elections stated "[t]his emergency regulation will allow the Commonwealth to conduct primary, special, and local opinion elections on June 23, 2020 in a manner that reduces the amount of exposure to voters, poll workers and administrators have to possible infection, thereby helping state and federal efforts to slow and stop the spread of the novel coronavirus." 31 KY. ADMIN. REGS. 4:190E (2020) at 1. The Board, in accordance with this purpose, issued the following relevant regulations with regard to absentee voting by mail and early in-person voting:

• [A]n application for an absentee ballot due to medical emergency a) shall not require the applicant to state that the emergency condition occurred within 14 days of the election, b) need not be notarized, and c) shall entitle the applicant, upon verification of the application, to vote by absentee, by mail or in person by appointment, as advised, if otherwise a lawful voter. Id. at Section 3;

• The State Board of Elections shall send a non-forwarding postcard to every registered voter of the Commonwealth to inform them of the changes being made to the June 23, 2020 election as a result of the COVID-19 pandemic, as well as the steps the voter must take to request an absentee ballot through the SBE secure online portal or by calling their County Clerk. Id. at Section 4;

• The State Board of elections shall establish a secure online portal that will allow voters to request an absentee ballot through the submission of personally identifiable information. Id. at Section 5;

• A voter shall request a mailed absentee ballot from the County Clerk of that voter's residence by 11:59 p.m. EST June 15, 2020. All mail-in ballots shall have the return postage paid for by the State Board of elections ... absentee ballots delivered by the United States Postal Service and bearing a postmark of June 23, 2020 or an earlier date, shall be counted if received by 6:00 p.m., June 27, 2020. Id. at Section 6;

• All County Clerks shall make their offices and telephone lines available for the purpose of allowing registered voters of their respective counites to schedule appointments to vote absentee by appointment beginning no later than June 8, 2020 and ending June 22, 2020, no fewer than 5 days per week in the two weeks before the week of election day. Id. at Section 10.

In addition to these regulations, the State Board of Elections required each County Board of Elections submit a proposal regarding its absentee ballot processing and counting, and its plan to reduce in-person polling places on Election Day:

• On or before June 1, 2020, each County Board of Elections shall appoint an absentee ballot processing committee with a minimum of four (4) members, all of whom must be registered voters in that county.... Each County Board of Elections shall establish, and present to the State Board of Elections for approval, a process for observation of absentee ballot processing and

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