Ohio Republican Party v. Brunner

• Decision Date: 14 October 2008
• Docket Number: No. 08-4322.,08-4322.
• Citation: 544 F.3d 711
• Parties: OHIO REPUBLICAN PARTY; Larry Wolpert, Plaintiffs-Appellees, v. Jennifer BRUNNER, Secretary of State of Ohio, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

544 F.3d 711

OHIO REPUBLICAN PARTY; Larry Wolpert, Plaintiffs-Appellees, v. Jennifer BRUNNER, Secretary of State of Ohio, Defendant-Appellant.

No. 08-4322.

United States Court of Appeals, Sixth Circuit.

October 14, 2008.

Before: BOGGS, Chief Circuit Judge; MARTIN, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, and WHITE, Circuit Judges.

ORDER

A majority of the Judges of the Court in regular active service have voted to hear this case en banc, thus vacating the stay of the Temporary Restraining Order, and to deny the motion of the Appellant Secretary of State to vacate or stay the district court's TRO.

Attached to this order are the opinions of SUTTON, J., joined by Chief Circuit Judge BOGGS and BATCHELDER, GILMAN, GIBBONS, COOK, McKEAGUE, GRIFFIN, and KETHLEDGE, Circuit Judges, concurring with the order; the opinion of GIBBONS, Circuit Judge, joined by BOGGS, Chief Circuit Judge, and BATCHELDER, GILMAN, SUTTON, COOK, McKEAGUE, GRIFFIN, and KETHLEDGE, Circuit Judges, concurring with the order; the statement of ROGERS, Circuit Judge, concurring with the order; and the opinion of KETHLEDGE, Circuit Judge, joined by GIBBONS and SUTTON, Circuit Judges, concurring with the order. Also attached is the opinion of MOORE, Circuit Judge, joined by MARTIN, DAUGHTREY, COLE, and CLAY, Circuit Judges, dissenting from the order; the opinion of MARTIN, Circuit Judge, joined by DAUGHTREY, COLE, and CLAY, Circuit Judges, dissenting from the order; and the opinion of WHITE, Circuit Judge, joined by DAUGHTREY and COLE, Circuit Judges, dissenting from the order. Not all judges have been able to respond, or to prepare additional separate writings and, should there be any such revisions or additional writings, this order will be reissued with all separate writings appended thereto.

SUTTON, Circuit Judge, joined by Chief Judge BOGGS and Judges BATCHELDER, GILMAN, GIBBONS, COOK, McKEAGUE, GRIFFIN and KETHLEDGE.

As this case comes (rapidly) to the court, the parties share some common ground. No one disputes that federal law, as described in the Help America Vote Act ("HAVA"), Pub.L. No. 107-252, 116 Stat. 1666 (2002) (codified at 42 U.S.C. § 15301 et seq.), helps Americans cast votes and helps to ensure that their votes count in two distinct respects. In one respect, the Act makes it easier for individuals to cast ballots by establishing a vote-first-challenge-later approach to dealing with disputes about an individual's eligibility to vote, the most obvious feature of which is the right to cast a provisional ballot when an election official questions an individual's eligibility to vote. In another respect, the Act helps to ensure that those votes count, or to put it another way the Act helps to ensure that those votes are not diluted by guarding against voter fraud. The one goal complements the other: Enabling the casting of one vote does little good if another voter fraudulently cancels it out. See Crawford v. Marion County Election Bd., ___ U.S. ___, 128 S.Ct. 1610, 1619, 170 L.Ed.2d 574 (2008); Purcell v. Gonzalez, 549 U.S. 1, 7, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006) (per curiam); Prichard v. United States, 181 F.2d 326, 331 (6th Cir.1950).

No one disputes that one of the tools that HAVA creates to address fraud is found in 42 U.S.C. § 15483(a)(5)(B)(i). It says:

(5) Verification of voter registration information

...

(B) Requirements for State officials.

(i) Sharing information in databases.

The chief State election official and the official responsible for the State motor vehicle authority of a State shall enter into an agreement to match information in the database of the statewide voter registration system with information in the database of the motor vehicle authority to the extent required to enable each such official to verify the accuracy of the information provided on applications for voter registration.

No one disputes that this provision places mandatory duties on the Secretary of State. At a minimum, it requires the Secretary of State, together with the head of Ohio's Bureau of Motor Vehicles ("BMV"), to agree to "match" information in BMV's database with information in the Statewide Voter Registration Database ("SWVRD"). No one disputes that the purpose of this matching is "to enable [officials] to verify the accuracy of the information provided on applications for voter registration." Id.

And no one disputes that the Secretary of State has put together an SWVRD System Manual, which is designed to implement these obligations. The pertinent section of that manual says the following:

15.4. BMV Not Confirmed (this process is currently turned off)

Upon receipt of a voter registration record or update, the [Secretary of State] SWVRD will validate certain voter information with the BMV. If the [Secretary] and BMV validation is unable to match the voter record, it may not be confirmed. If this occurs the [Secretary] SWVRD sends the [county boards of election] a message stating that the record may not be "confirmed." Voter records that are not confirmed must have their information updated and resent to the [Secretary] SWVRD and validation with the BMV will be reattempted.

Resp. to Emergency Mot., Ex. 1 at 35 (Ex. A. to Damschroder Aff.) (emphasis in original). According to the Secretary of State's manual, that office at one point implemented § 15483(a)(5)(B)(i) in this way: first, if there was not a match between the Secretary's and BMV's records, the Secretary would send the county boards of elections a message indicating that the voter's registration record cannot be "confirmed"; second, after that happened, the Secretary required unconfirmed voter records to be updated and resent to the Secretary for another effort to validate them with the BMV records. Id.; cf. id., Ex. 1 at 63-64 (Kindred Aff.) (explaining the Secretary's earlier practice of sharing mismatch data with county boards).

The apparent "turn[ing] off" of this voter-registration-verification process, or at least the discovery that it had been turned off, prompted this dispute. For reasons that the record does not reveal and at a time the record does not reveal, the Secretary of State apparently chose to deactivate at least part of the process, if not all of the process, described in section 15.4 of her manual. In particular, she concedes that at some point she stopped communicating with the county boards about mismatches and stopped renewing validation requests with the BMV after obtaining a mismatch. The Ohio Republican Party ("ORP") and Larry Wolpert, a state representative, supported by affidavits from two officials of different county boards of election, challenge the Secretary's interpretation of her duties under HAVA. As they see it, § 15483(a)(5)(B)(i) requires the Secretary to do what she formerly did under section 15.4 of her manual or at least requires her to share county-by-county records of mismatches with the local boards of election. If the statute requires the Secretary only to identify mismatches but does not require her to share this information in a meaningful way with the county boards, they add, then the purpose of verifying voter records with driver's license records would be defeated, and one of HAVA's tools for ferreting out voter fraud would become an empty gesture. The Secretary responds that the county boards of election technically still have "access" to this information because they have access to the SWVRD, which permits them to check each absentee voter (or any other type of voter) for mismatches. But, in contrast to being given a list of mismatches by county or having the Secretary assist them in addressing mismatch problems, the plaintiffs say that general access to the SWVRD system is essentially useless — not unlike asking for a drink of water and being given access to a fire hose at full volume — and will do nothing to address the anti-fraud objective of this provision of HAVA.

This dispute and several others apparently grew out of the Secretary's August order to allow simultaneous registration and voting for six days in Ohio in late September and early October. In resolving today's dispute, the district court on October 10, 2008, entered a temporary restraining order ("TRO") directing the Secretary to ensure that "HAVA's matching requirements are not rendered meaningless" and to do so either by providing lists of mismatches to the county boards of elections or by providing the county boards of election with a method to search the SWVRD so that they "can isolate and review the mismatches and take appropriate action." Order at 16.

A panel of this court vacated the order later that same day — October 10. While I tend to agree with some aspects of the panel's decision and sympathize with the lack of time it had to address these issues (12 hours or so), I disagree with its key premises for vacating the district court's TRO.

Before addressing those issues, it is important to point out why en banc review of the panel's decision is appropriate in this matter. While in the normal course it often will be unwise and inefficient to grant en banc review of decisions like this one, this is not a normal case — as the panel's interlocutory reversal of the district court's TRO itself establishes. Section 1292(a)(1) does not give courts of appeals authority to review temporary restraining orders but only "injunctions." 28 U.S.C. § 1292(a)(1). We have correctly construed that authority to extend to TROs in limited cases, namely when a TRO effectively operates as a litigation-altering and litigation-ending injunction because it gives the parties no "meaningful appellate options" about a significant issue of law given the imminence of an irreversible event — say an execution, see, e.g., Workman v. Bredesen, 486 F.3d 896, 904 (6th Cir.2007), or as here an election. Cf. generally Carson v. Am. Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981). The...