A. Philip Randolph Inst. v. Husted

• Decision Date: 23 September 2016
• Docket Number: No. 16–3746,16–3746
• Citation: 838 F.3d 699
• Parties: A. Philip Randolph Institute; Northeast Ohio Coalition for the Homeless ; Larry Harmon, Plaintiffs–Appellants, v. Jon Husted, Secretary of State, Defendant–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

838 F.3d 699

A. Philip Randolph Institute; Northeast Ohio Coalition for the Homeless ; Larry Harmon, Plaintiffs–Appellants,

v.Jon Husted, Secretary of State, Defendant–Appellee.

No. 16–3746

United States Court of Appeals, Sixth Circuit.

Argued: July 27, 2016

Decided and Filed: September 23, 2016

ARGUED: Stuart C. Naifeh, DEMOS, New York, New York, for Appellants. Michael J. Hendershot, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Stuart C. Naifeh, Naila Awan, DEMOS, New York, New York, Freda J. Levenson, Elizabeth Bonham, ACLU OF OHIO, Cleveland, Ohio, Richard Saphire, UNIVERSITY OF DAYTON SCHOOL OF LAW, Dayton, Ohio, Paul Moke, WILMINGTON COLLEGE, Wilmington, Ohio, for Appellants. Michael J. Hendershot, Eric E. Murphy, Steven T. Voigt, Jordan S. Berman, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. Tovah R. Calderon, Vikram Swaruup, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Emmet J. Bondurant, BONDURANT MIXSON & ELMORE LLP, Atlanta, Georgia, Michelle E. Kanter Cohen, PROJECT VOTE, INC., Washington, D.C., Lauren M. Burke, JUDICIAL WATCH, INC., Washington, D.C., for Amici Curiae.

Before: SILER, CLAY, and GIBBONS, Circuit Judges.

CLAY

, J., delivered the opinion of the court in which GIBBONS, J., joined, and SILER, J., joined in part. SILER, J. (pp. 715–17), delivered a separate opinion concurring in part and dissenting in part.

OPINION

CLAY

, Circuit Judge.

The A. Philip Randolph Institute (“APRI”), the Northeast Ohio Coalition for the Homeless (“NEOCH”), and Larry Harmon (collectively “Plaintiffs”) filed suit seeking to enjoin the defendant, Ohio Secretary of State Jon Husted (“the Secretary”), from removing the names of registered voters from Ohio's voter rolls pursuant to the state's so-called Supplemental Process, which Plaintiffs allege violates the National Voter Registration Act of 1993 (“NVRA”), 52 U.S.C. § 20501 et seq. ,

and the Help America Vote Act of 2002 (“HAVA”), 52 U.S.C. § 20901 et seq. Plaintiffs also sought an injunction requiring the Secretary either to reinstate otherwise eligible voters who were improperly removed from the rolls pursuant to the Supplemental Process, or to count provisional ballots cast by such persons. Finally, Plaintiffs alleged that the change-of-address confirmation notices mailed to voters as part of the Supplemental Process fail to meet the standards for such notices set out in the NVRA, 52 U.S.C. § 20507(d)(2). Before us is Plaintiffs' appeal from the district court's order denying Plaintiffs' request for a permanent injunction and directing entry of judgment in favor of the Secretary. For the reasons set forth below, we REVERSE the district court's judgment and REMAND for further proceedings consistent with this opinion.

BACKGROUND

Factual History

In addition to maintaining procedures for removing the names of the deceased, those who have been adjudicated incompetent, and convicted felons from its voter rolls, see Ohio Rev. Code § 3503.18(A)

–(C), Ohio utilizes two processes for identifying and purging from the rolls voters who are no longer eligible to vote because they have moved outside their county of registration. See Ohio Rev. Code § 3503.21.¹ The first is Ohio's “NCOA Process,” under which the Secretary's office compares the names and addresses contained in Ohio's Statewide Voter Registration Database to the National Change of Address (“NCOA”) database. “The NCOA database contains names and addresses of individuals who have filed changes of address with the United States Postal Service.” (R. 38–2, Damschroder Decl., ¶ 11.) The Secretary thereafter provides each county's Board of Elections (“BOE”) with a list of voters registered therein who appear to have moved, based on the comparison of the two databases. The BOEs then “send[ ] a confirmation notice ... to each individual identified.” (Id. ) That notice is a postage prepaid forwardable form on which the voter must indicate whether he or she still lives at the same address. Recipients of the notice are removed from the rolls if they: (1) do not respond to the confirmation notice or update their registration; and (2) do not subsequently vote during a period of four consecutive years that includes two federal elections.² See Ohio Rev. Code § 3503.21(A)(7)

, (B).

Ohio's so-called “Supplemental Process” is the second method the state uses for identifying and removing from the rolls voters who are no longer eligible to vote due to a change of residence. The Supplemental Process is largely identical to the NCOA Process, except in the way it begins: rather than identifying voters who may have moved by reference to the NCOA database, each county's BOE compiles a list of registered voters who have not engaged in any “voter activity” for two years. For the purposes of the Supplemental Process, “voter activity” includes “filing a change of address” with a designated state agency; “filing a voter registration card with the [BOE]; ... casting an absentee ballot; casting a provisional ballot; [or] voting on election day.”³ (R. 42–1, Damschroder Dep., PageID 1548–49.) After compiling a list of inactive voters, each BOE sends a confirmation notice to those on its list. As with the NCOA Process, voters sent a confirmation notice are removed from the rolls if they subsequently fail to vote for four years and fail to either respond to the notice or re-register. In sum, under the Supplemental Process, a voter is purged from the rolls after six years of inactivity—even if he or she did not move and otherwise remains eligible to vote.

When this litigation began, the confirmation notices sent to voters pursuant to both the NCOA Process and Supplemental Process required that voters provide their name, current Ohio address, date of birth, and either their Ohio driver's license number, their Social Security number, or a copy of a document verifying their identity and address. The notices required that voters provide such information regardless of whether they had changed address or were merely confirming that they still lived at the same address. Moreover, the notices did not adequately inform voters of the consequences of failing to respond to the notice; rather, the form indicated that the recipient's registration “may” be canceled if he or she did not respond, re-register, or vote in the next four years. (R. 42–13, 2015 Conf. Notice Form, PageID 1702.) Finally, the form failed to inform voters who had moved outside of Ohio on how they could remain eligible to vote in their new state.

As discussed below, the Secretary issued a new confirmation notice form during the pendency of this litigation. On the newly issued form, voters can confirm that they have not changed address by simply signing, dating, and returning the postage prepaid form. The new form also provides voters with the dates by which they must either return the form or vote in order to remain registered. Notably, however, the new form still lacks information on how persons who have moved to another state can register to vote in their new state.

Procedural History

This case began with two letters sent by NEOCH and APRI

to the Secretary in December 2015 and February 2016, respectively. Both letters asserted that Ohio's Supplemental Process violated Section 8 of the NVRA. Not long after sending their letters, APRI and NEOCH representatives began meeting with the Secretary in an attempt to resolve their concerns without litigation. Those meetings failed to produce results, causing Plaintiffs to file this suit in federal district court on April 6, 2016. Plaintiffs' complaint alleged two causes of action relevant to this appeal: first, that the Supplemental Process unlawfully removes registered voters from the rolls due to their failure to vote in violation of Section 8, subsection (b)(2) of the NVRA, 52 U.S.C. § 20507(b)(2) ; and second, that the confirmation notices sent to voters under both the NCOA Process and the Supplemental Process fail to meet the standards for such forms set out in the NVRA, 52 U.S.C. § 20507(d)(2).

The day after filing their complaint, Plaintiffs moved for a temporary restraining order (“TRO”) prohibiting the Secretary from “removing eligible Ohio voters from the voter rolls on account of their failure to vote pursuant to Ohio's ‘Supplemental Process.’ ” (R. 9, Mot. for TRO, PageID 36.) Plaintiffs' motion also requested a preliminary injunction compelling the Secretary to reinstate voters already removed from the rolls pursuant to the Supplemental Process. Four days later, Plaintiffs agreed to withdraw their request for a TRO in exchange for the Secretary's agreement not to initiate the Supplemental Process prior to July 1, 2016. A week after Plaintiffs filed their complaint, the parties agreed to engage in limited discovery and to address all the dispositive issues in the case through simultaneous briefing. The parties filed their briefs in May and June of 2016, with Plaintiffs styling their briefs as memoranda supporting motions for summary judgment and a preliminary injunction. On June 17, 2016—the day the parties' final briefs were due before the district court—the Secretary issued a directive requiring BOEs to use a new version of the confirmation notice form. As discussed above, that new form corrected all but one of Plaintiffs' alleged deficiencies.

On June 29, 2016, the district court issued an order denying Plaintiffs' motions for summary judgment and a preliminary injunction; the order directed entry of judgment in favor of the Secretary. Addressing the parties' arguments under permanent injunction standards, the court began by rejecting Plaintiffs' arguments that the Supplemental Process violates the NVRA and the HAVA. The court held that because Section 8 of the NVRA does not explicitly dictate what information states may or must use as a “trigger” for sending a confirmation notice, that decision was impliedly left to the states. The court also concluded that the Supplemental Process...