A. Philip Randolph Inst. v. Husted

• Citation: 907 F.3d 913
• Decision Date: 31 October 2018
• Docket Number: No. 18-3984,18-3984
• Parties: A. PHILIP RANDOLPH INSTITUTE; Northeast Ohio Coalition for the Homeless ; Larry Harmon, Plaintiffs-Appellants, v. Jon HUSTED, Secretary of State of Ohio, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

907 F.3d 913

A. PHILIP RANDOLPH INSTITUTE; Northeast Ohio Coalition for the Homeless ; Larry Harmon, Plaintiffs-Appellants,

v.Jon HUSTED, Secretary of State of Ohio, Defendant-Appellee.

No. 18-3984

United States Court of Appeals, Sixth Circuit.

Decided and Filed: October 31, 2018

COUNSEL ON MOTION AND REPLY: Stuart C. Naifeh, Naila Awan, Brenda Wright, DEMOS, New York, New York, Chiraag Bains, DEMOS, Washington, D.C., Freda J. Levenson, Elizabeth Bonham, AMERICAN CIVIL LIBERTIES UNION OF OHIO, Cleveland, Ohio, for Appellants. ON RESPONSE: Steven T. Voigt, Heather L. Buchanan, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Joseph A. Vanderhulst, PUBLIC INTEREST LEGAL FOUNDATION, Indianapolis, Indiana, Paul J. Orfanedes, JUDICIAL WATCH, INC., Washington, D.C., for Amici Curiae.

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

The court delivered a published order. SILER, J. (pp. 923–24), delivered a separate opinion concurring in part and dissenting in part.

ORDER

Plaintiffs filed an Emergency Motion for Injunction Pending Appeal with this Court to enjoin Defendant to instruct Ohio’s county boards of elections ("Boards"), first, to count certain provisional ballots that may be cast in the November 6, 2018 federal election in accordance with the "APRI Exception" (discussed below) and, second, not to remove any voter under Ohio’s Supplemental Process pending appeal if removal is pursuant to a confirmation notice that was sent prior to August 2016. Defendant opposes the motion.

BACKGROUND

Procedural History

To begin, we note the current posture and long history of the case: The case originally involved two issues, the one Plaintiffs raise now before this Court concerning the validity of Ohio’s confirmation notices under the National Voter Registration Act ("NVRA"), and another issue of whether Ohio’s Supplemental Process as a whole violated the NVRA’s provision stating that no registrant may be removed from the voter rolls "by reason of the person’s failure to vote." 52 U.S.C § 20507(b)(2). On the second issue, this Court decided that the Supplemental Process did violate § 20507(b)(2) in A. Philip Randolph v. Husted , 838 F.3d 699 (6th Cir. 2016) before being reversed by the Supreme Court in Husted v. A. Philip Randolph Institute , ––– U.S. ––––, 138 S.Ct. 1833, 201 L.Ed.2d 141 (2018), which held that the program complied with § 20507(b)(2). Neither of those cases binds this Court on the issue of whether Defendant’s confirmation notice violated the separate requirements of § 20507(d) because this Court did not decide the merits of that issue and Defendant did not petition the Supreme Court for certiorari on that issue.¹

Thus, after the Supreme Court’s decision, the case came back to the district court to decide the issue of whether the confirmation notices’ language violated the NVRA. The district court ruled on cross-motions for final judgment by Plaintiffs and Defendant and granted both parties’ motions in part and denied both parties’ motions in part. (R. 140, Opinion and Order, Page ID# 24730.) Plaintiffs’ motion sought a permanent injunction, which the district court denied, except as regards a requirement that Defendant continue to use a confirmation notice that includes information for voters moving out of state on how to remain eligible to vote. (Id. , Page ID# 24755.) Plaintiffs appealed that Opinion and Order, (R. 142, Notice of Appeal, Page ID# 24758–60), and moved to enjoin Defendant pending that appeal both 1) to utilize the APRI Exception in the November 2018 election and 2) not to remove any voter pursuant to the Supplemental Process if the voter was sent a confirmation notice prior to 2016. (R. 143, Plaintiff’s Motion for Injunction Pending Appeal, Page ID# 24761.) The district court denied this motion largely due to the reasoning in its prior Opinion and Order (which was relevant under the "likelihood of success on the merits" prong of its analysis as to the injunction pending appeal). (R. 144, Order, Page ID# 24771–73.) Thus, what we have is a pending appeal of the denial of a permanent injunction, and a question of whether Plaintiffs are entitled to relief before that appeal is decided.² Time is of the essence as the first form of relief being sought concerns whether Ohio must accept provisional ballots in the November 6, 2018 federal election pursuant to the APRI Exception and the second concerns a scheduled purge of the voter rolls after that election. (R. 42-4, Directive 1013-10 General Voter Records Maintenance Program, Page ID# 1602–09.)

Factual Background

The factual background is presented fully in the district court’s Opinion and Order, and this Court need not repeat it here. Relevant to this analysis, we note only that the APRI Exception that Plaintiffs seek to enjoin Defendant to follow in the November election is a procedure for counting provisional ballots that Plaintiffs fairly summarize as follows:

The APRI Exception require[s] Boards to count provisional ballots cast by voters purged under the Supplemental Process between 2011 and 2015 if the voter:

(1) cast the ballot at their county’s early voting location or at the correct polling location on Election Day;

(2) continues to reside in the same county where they were previously registered; and

(3) did not become ineligible by reason of felony conviction, mental incapacity, or death subsequent to the date on which their name was removed from the rolls.

(Emergency Motion at 8.)³ Plaintiffs also note that the APRI Exception was used in every level of elections in Ohio between November 2016 and August 2018 and that in the 2016 Presidential Election over 7,500 eligible voters had their votes counted under the APRI Exception. (Id. (citing R. 133-4, Damschroder Decl., Page ID# 24169).)

DISCUSSION

The parties and the district court all agree that at issue here is how to balance the four relevant factors in connection with Plaintiffs’ Emergency Motion for Injunction Pending Appeal, namely:

(1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay.

Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog , 945 F.2d 150, 153 (6th Cir. 1991). However, before we get to those factors, there are preliminary questions to answer about the nature of our review.

1. Plaintiffs’ Burden and Standard of Review

This motion for an injunction pending appeal is filed directly with this Court. See E. Greyhound Lines v. Fusco , 310 F.2d 632, 634 (6th Cir. 1962). Under Rule 8(a)(2)(A)(ii) of the Federal Rules of Appellate Procedure, a party may make a motion for injunctive relief pending appeal directly to the court of appeals, so long as the motion "state[s] that, a motion having been made, the district court denied the motion or failed to afford the relief requested and state[s] any reasons given by the district court for its action." Plaintiffs have done exactly that. After the district court denied their motion to enjoin Defendant, they rightly filed this motion with the appellate court on October 15, 2018. This is therefore not an appeal of the district court’s decision, which would be subject to abuse of discretion review. U.S. Student Ass’n Foundation v. Land , 546 F.3d 373, 380 (6th Cir. 2008). Because we are not reviewing any district court decision or order, our review is de novo . Prior cases which consider the appellate court’s standard of review when considering a preliminary injunction are not binding at this point in the proceeding, though they will be relevant when deciding the merits of the issue and evaluating the preliminary injunction itself. However, Defendant argues that the burden on Plaintiffs in this case is very high because 1) the motion is for relief pending appeal; 2) the relief sought is an injunction; and 3) the motion comes soon before an election. (Response of Appellee at 4.)

We do not find that these considerations require a more deferential standard of review in this case or a categorically higher burden on Plaintiffs. We will go through these three considerations in turn.

With respect to the first consideration, it is true that Plaintiffs’ emergency motion seeks relief pending Plaintiffs’ appeal of the district court’s Opinion and Order. But the emergency motion itself is not an appeal. Defendant might be right that when we consider the district court’s Opinion and Order on appeal we will need to give deference to the district court’s decision not to grant the permanent injunction. However, that does not mean Plaintiffs carry a higher burden in this case.⁴

With respect to the fact that the emergency motion seeks an injunction rather than a stay, this does not change the Plaintiffs’ burden in this case. Defendant cites several decisions by Supreme Court justices sitting as a single circuit justice declining to grant injunctive relief pending appeal and noting that this is an "extraordinary relief" that a movant is not entitled to unless relief is "indisputably clear." Hobby Lobby Stores, Inc. v. Sebelius , 568 U.S. 1401, 1403, 133 S.Ct. 641, 184 L.Ed.2d 448 (2012) (Sotomayor, J., in chambers) (quoting Lux v. Rodrigues , 561 U.S. 1306, 1307, 131 S.Ct. 5, 177 L.Ed.2d 1045 (2010) (Roberts, C.J., in chambers) ). However, a closer look at these cases shows that they rely at least in part of the Rules of the Supreme Court, which of course do not bind this Court. See, e.g. , Hobby Lobby , 568 U.S. at 1403, 133 S.Ct. 641 (Sotomayor, J., in chambers) (citing the Supreme Court’s then-Rule 20.1 stating that "Issuance by the Court of an extraordinary writ ... is not a matter of right, but of discretion sparingly exercised."). The decisions also discuss the burden for "obtain[ing] injunctive relief from a Circuit Justice" rather than any general purpose requirements for...