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A. Philip Randolph Institute v. Husted

United States Court of Appeals, Sixth Circuit

October 31, 2018

A. Philip Randolph Institute; Northeast Ohio Coalition for the Homeless; Larry Harmon, Plaintiffs-Appellants,
Jon Husted, Secretary of State of Ohio, Defendant-Appellee.

          Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 2:16-cv-00303-George C. Smith, District Judge.


          Stuart C. Naifeh, Naila Awan, Brenda Wright, DĒMOS, New York, New York, Chiraag Bains, DĒMOS, 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.


         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.


         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, 138 S.Ct. 1833 (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 ...

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