Organization for Black Struggle v. Ashcroft

• Decision Date: 09 October 2020
• Docket Number: Case No. 2:20-CV-04184-BCW
• Citation: 493 F.Supp.3d 790
• Parties: ORGANIZATION FOR BLACK STRUGGLE, et al., Plaintiffs, v. John R. ASHCROFT, in his official capacity as Missouri Secretary of State, et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

493 F.Supp.3d 790

ORGANIZATION FOR BLACK STRUGGLE, et al., Plaintiffs,

v.John R. ASHCROFT, in his official capacity as Missouri Secretary of State, et al., Defendants.

Case No. 2:20-CV-04184-BCW

United States District Court, W.D. Missouri, Central Division.

Signed October 9, 2020

Chiraag Bains, Pro Hac Vice, Kathryn Sadasivan, Naila S. Awan, Pro Hac Vice, Demos, New York, NY, Jessie Steffan, Anthony E. Rothert, American Civil Liberties Union of Missouri Foundation, Denise Debra Lieberman, Pro Hac Vice, Kayla DeLoach, Saint Louis, MO, Ezra D. Rosenberg, Pro Hac Vice, Ryan Snow, Pro Hac Vice, Washington, DC, Gillian R. Wilcox, American Civil Liberties Union of Missouri Foundation, Kansas City, MO, for Plaintiffs Organization for Black Struggle, St. Louis A. Philip Randolph Institute, Greater Kansas City A. Philip Randolph Institute, National Council of Jewish Women St. Louis Section.

Chiraag Bains, Pro Hac Vice, Kathryn Sadasivan, Naila S. Awan, Pro Hac Vice, Demos, New York, NY, Ezra D. Rosenberg, Pro Hac Vice, Ryan Snow, Pro Hac Vice, Washington, DC, Gillian R. Wilcox, American Civil Liberties Union of Missouri Foundation, Kansas City, MO, Jessie Steffan, Anthony E. Rothert, American Civil Liberties Union of Missouri Foundation, Kayla DeLoach, Saint Louis, MO, for Plaintiff Missouri Faith Voices.

Dean John Sauer, Julie Marie Blake, Missouri Attorney General's Office, Jefferson City, MO, for Defendant John R. Ashcroft.

John W. Housley, Nicholas Austin Fax, Lowther Johnson Attorneys at Law, LLC, Springfield, MO, for Defendant Greene County Clerk's Office.

Edward J. Sluys, Steven W. Garrett, Curtis, Heinz, Garrett & O'Keefe, P.C., Clayton, MO, for Defendant St. Louis County Board of Elections.

ORDER

BRIAN C. WIMES, JUDGE

Plaintiffs the Organization for Black Struggle, the St. Louis A. Philip Randolph Institute, the Greater Kansas City A. Philip Randolph Institute, the National Council of Jewish Women St. Louis Section, and Missouri Faith Voices (hereinafter, "Plaintiffs") are seeking a temporary restraining order ("TRO") and preliminary injunction based on three claims, two of which allege Equal Protection and Due Process violations of the Fourteenth Amendment to the U.S. Constitution and the third claim alleging a violation of the Materiality Provision of the Civil Rights Act of 1964, 52 U.S.C. § 10101(a)(2)(B).¹ Defendants, through John R. Ashcroft, in his official capacity as Secretary of State of Missouri, oppose the motion seeking injunctive relief. The Court, being duly advised of the premises, grants in part and denies in part Plaintiffs' motion for preliminary injunctive relief and TRO.

BACKGROUND

Plaintiffs, on September 17, 2020, filed three claims against Defendant Ashcroft and the county election authorities of Greene County, Jackson County, St. Charles County, and St. Louis County. The three claims relate from Senate Bill 631.

Prior to 2020, Missouri authorized absentee voting for six specific categories of voters and all other Missouri voters voted in person. See Mo. Rev. Stat. § 115.277.1(1)-(6). In response to the COVID-19 pandemic, on June 4, 2020, the Missouri legislature enacted Senate Bill 631, which added an additional category (7) to absentee voting, allowing individuals who are in "an at-risk category" for COVID-19 to cast an absentee ballot without notarization. The bill also enacted new section Mo. Rev. Stat. § 115.302 allowing all Missourians who are registered voters to "mail-in" vote for elections in 2020.

The new law establishes different procedures for absentee voters and mail-in voters.² Absentee ballots may be requested by mail, email, fax, or in person. Mo. Rev. Stat. § 115.279.1. On the other hand, mail-in ballots must be requested either by mail or in person. Mo. Rev. Stat. § 115.302.1. Similarly though, if a request for an absentee ballot or a mail-in ballot is rejected, the local election authority (LEA) is required by statute to notify the applicant of the reason his or her application for a remote ballot, whether under § 115.277 or § 115.302, was rejected. In each instance, the remote ballot applicant can challenge the application rejection decision with the Elections Division of the Secretary of State's Office.

Once a remote voter's ballot application is approved and the remote voter receives the remote ballot, the process to complete the remote ballot is the same. The voter must fill out his or her name, address, signature attesting he or she is authorized to cast the ballot, and (for absentee ballots) the reason for voting absentee on the ballot envelope. Mo. Rev. Stat. § 115.302.8 ; § 115.291.1. A remote voter's failure to state a reason for voting absentee does not result in rejection of the ballot, but a voter's failure to provide on the ballot envelope his or her name, address, and/or signature attesting they are authorized to cast the ballot results in rejection of the ballot. Mo. Rev. Stat. § 115.294.

All ballots must be received by the close of polls on election day. Election authorities may not count ballots received after 7:00 p.m. on election day. Mo. Rev. Stat. § 115.293.1.

Absentee ballots may be returned one of two ways – by mail, or in person. If the absentee voter chooses the latter option, he or she delivers the ballot to the election authority or may have a relative return the absentee ballot on the voter's behalf, as long as the relative is within the second degree of consanguinity or affinity. Mo. Rev. Stat. § 115.291.2.

By contrast, "[e]ach mail-in ballot shall be returned to the election authority in the ballot envelope and shall only be returned by the voter by United States mail." Mo. Rev. Stat. § 115.302.12.

In the instant motion, Plaintiffs argue they are entitled to a preliminary injunction and TRO with respect to each of their three claims for relief against Defendants. With respect to Count I, Plaintiffs argue the 2020 remote ballot rules violate equal protection because Defendants treat those availing themselves of mail-in voting different from those availing themselves of absentee voting, imposing an undue burden on the right to vote. Plaintiffs assert a violation of equal protection because an absentee voter may apply for an absentee ballot in person, by mail, by email, or by fax, while a mail-in voter may apply for an absentee ballot only in person or by mail.

Further, Plaintiffs assert a violation of equal protection because while an absentee voter may return his or her ballot to the election authority by mail, or in person, or through a close relative, a mail-in voter may return his or her ballot to the election authority only through U.S. mail. Plaintiffs seek to enjoin Defendants' enforcement of these differing treatments.

With respect to Count II, Plaintiffs argue they are entitled to injunctive relief against Defendants' alleged violations of the materiality provision of the Civil Rights Act by rejecting ballot applications and ballots for immaterial errors.

With respect to Count III, Plaintiffs argue they are entitled to injunctive relief against Defendants' failure to provide voters with notice and a meaningful opportunity to cure any ballot errors before rejecting the ballot.

LEGAL STANDARD

A preliminary injunction is an "extraordinary remedy," and "the burden of establishing the propriety of an injunction is on the movant." Watkins Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003). The following factors are relevant to the Court's consideration of whether to grant injunctive relief: "(1) the likelihood of the movant's success on the merits; (2) the threat of irreparable harm to the movant in the absence of relief; (3) the balance of the harm and the harm that the relief would cause to other litigants; and (4) the public interest." Id. (citing Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981) ). Likelihood of success on the merits is the "most significant" factor, and "the absence of a likelihood of success on the merits strongly suggests that preliminary injunctive relief should be denied." Barrett v. Claycomb, 705 F.3d 315, 320 (8th Cir. 2013).

ANALYSIS

"[S]tanding is a jurisdictional prerequisite that must be resolved before reaching the merits of a suit." City of Clarkson Valley v. Mineta, 495 F.3d 567, 569 (8th Cir. 2007). "In essence, the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). "[S]tanding imports justiciability: whether the plaintiff has made out a ‘case or controversy’ between himself and the defendant within the meaning of Article III. This is the threshold question in every federal case, determining the power of the court to entertain suit." Id.

The standing inquiry requires the plaintiff to allege "some threatened or actual injury" traceable to the defendant, such that the plaintiff has "such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court's remedial power on his behalf." Id. at 498-99, 95 S.Ct. 2197.

To demonstrate Article III standing, a plaintiff must show each of the following: "(1) an injury in fact; (2) a causal connection between the injury and the challenged conduct; and (3) the likelihood that a favorable decision by the court will redress the alleged injury." Iowa League of Cities v. Env't Prot. Agency, 711 F.3d 844, 869 (8th Cir. 2013). An injury in fact sufficient to confer standing must be concrete and particularized, as well as actual and imminent, as opposed to hypothetical. Friends of the Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) ; Warth, 422 U.S. at 501, 95 S.Ct. 2197 (requiring a "distinct and palpable injury").

Defendants argue Plaintiffs, as advocacy organizations, do not have standing to assert any of their claims. First, Defendants argue all of Plaintiffs' claims...