A. Philip Randolph Institute; Northeast Ohio Coalition for the Homeless; Larry Harmon, Plaintiffs-Appellants,
Jon Husted, Secretary of State of Ohio, Defendant-Appellee.
from the United States District Court for the Southern
District of Ohio at Columbus. No. 2:16-cv-00303-George C.
Smith, District Judge.
MOTION AND REPLY:
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.
T. Voigt, Heather L. Buchanan, OFFICE OF THE OHIO ATTORNEY
GENERAL, Columbus, Ohio, for Appellee.
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.
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.
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
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. 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 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:
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.) 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 ...