Ohio Democratic Party v. LaRose

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Ohio Democratic Party,

Case No: 2:19-cv-3774

Plaintiff,

Judge Graham

v.

Magistrate Judge Deavers

Frank LaRose, in his official capacity as

Ohio Secretary of State,

Defendant.

Opinion and Order

Plaintiff Ohio Democratic Party (the “ODP”) brings this suit against Frank LaRose, Ohio

Secretary of State, alleging that the Secretary is preparing to unlawfully remove up to 30,600 eligible

voters from Ohio’s voter registration database. The ODP seeks a temporary restraining order to

prevent the Secretary from proceeding with his plan to remove registrants from the database on

September 6, 2019.

For the reasons that follow, the ODP’s motion for a temporary restraining order is DENIED.

I. Background

A. The Voter File

The State of Ohio maintains a computerized voter registration database, as required by 52

U.S.C. § 21083. This database, which the parties refer to as the Voter File, “contains the name and

registration information of every legally registered voter in the State.” Id. at § 21083(a)(1)(A). The

Voter File is publicly accessible on the Secretary’s website. The Voter File contains such information

as the voter’s name, address, date of voter registration, party affiliation, county, school district and

precinct.

The Secretary is required by law to keep the Voter File “accurate” and “updated regularly.”

Id. at § 21083(a)(4). To that end, the Secretary must implement a “system of file maintenance that

makes a reasonable effort to remove registrants who are ineligible to vote.” Id. at § 21083(a)(4)(A).

Individuals who are not registered to vote or who are not eligible to vote may be removed from the

Voter File. Id. at § 21083(a)(2)(B)(ii). Registrants who “have not responded to a notice and who have

not voted in 2 consecutive general elections for Federal office shall be removed from the official list

of eligible voters, except that no registrant may be removed solely by reason of a failure to vote.” Id.

at § 21083(a)(4)(A). The Secretary must implement “[s]afeguards to ensure that eligible voters are not

removed in error from the official list of eligible voters.” Id. at § 21083(a)(4)(B).

B. The Supplemental Process

Residency is a key criteria of voter eligibility. Ohio voters must reside in the district in which

they vote. O.R.C. § 3503.01(A). If they move out of their district, they are no longer eligible to vote

there. Id. Ohio uses two measures to determine which registrants should be removed from the Voter

File on change-of-residence grounds. The first is reliance on the United States Postal Service’s

National Change of Address list. Id. at § 3503.21(B)(1). Federal law expressly allows states to rely on

the Postal Service’s list. 52 U.S.C. § 20507(c)(1).

The second measure, called the “Supplemental Process,” involves sending confirmation

notices to registrants who have not voted for two years. Registrants who do not return the

confirmation notice and fail to vote in any election for four more years are removed on the

presumption that they have moved. O.R.C. § 3503.21(A)(7), (B)(2).

The United States Supreme Court upheld Ohio’s Supplemental Process for determining which

registrants are subject to removal from the Voter File. See Husted v. A. Philip Randolph Institute, 584

U.S. __, 138 S. Ct. 1833 (2018). The Court held that the Supplemental Process does not violate the

National Voter Registration Act of 1993, 52 U.S.C. § 20507.

Litigation concerning whether the notices sent by the State to inactive voters between 2007

and 2015 complied with federal law was resolved through a settlement agreement reached on August

28, 2019 in A. Philip Randolph Institute v. Husted, Case No. 2:16-cv-303 (S.D. Ohio). Under the

settlement agreement, voters whose registrations were canceled through the Supplemental Process

may cast a provisional ballot, so long as the provisional ballot reflects that the voter’s residence is

within the same precinct and county as where their canceled registration originated.

C. The Last Chance Notice and Registration Reset List

On June 26, 2019, the Secretary issued Directive 2019-09 to county boards of elections. It

required boards to send “last chance” notices to individuals whose registrations would be canceled

under the Supplemental Process following the May 7, 2019 special and primary election. These

individuals were ones who had received a confirmation notice in 2015 and had failed to respond to

the notice, vote or update their registration in the four years since.

The last chance notice gives recipients an opportunity to update or confirm their address and

avoid having their registration canceled. See Ohio Sec’y of State Form 255-A-3. The notices were to

be sent by July 29, 2019 and advised recipients that their registrations would be canceled on September

6, 2019 if they failed to respond. See O.R.C. § 3503.21(E) (concerning timing of cancellation).

Directive 2019-09 further required boards of elections to provide the Secretary with a list of

registrants who had been sent last chance notices. Boards were to do so by July 15, 2019. From these

lists, the Secretary would populate a Registration Reset List of registrants who were subject to removal

from the Voter File on September 6, 2019.

On June 26, 2019 the Secretary announced his intention to make the Registration Reset List

available to interested organizations. See Grandjean Decl. at ¶ 31. On August 1, the Secretary

published the List and made it publicly available on his website. Id. at ¶ 32.

D. Allegations of Inaccuracies

The complaint alleges that the List contains 235,610 registrants. According to the complaint,

voting rights groups and other organizations have obtained the List and reported inaccuracies they

have discovered since early August 2019. In particular, the complaint cites an August 5 article in The

Columbus Dispatch article that 1,100 voters in Franklin County were incorrectly sent last chance notices.

On August 15, the Ohio League of Women Voters reported that it had found 4000 voters on the List

who were listed as having “active” status on the Secretary’s website. The League also reported that it

had found 17,500 voters on the List who had voted as recently as November 2018.

The complaint further alleges that on August 16 the Secretary’s own staff identified 1,450

voters who were wrongly included on the list. The complaint cites a Columbus Dispatch article in

support of this contention.

On August 19, the Ohio House Democratic Caucus reported to the Secretary that it had found

6,500 eligible voters who were wrongly included on the List. The vast majority of the errors related

to voters who had moved within their own counties, the complaint alleges.

E. Filing of this Suit

The ODP filed this suit on Friday, August 30, 2019. The complaint alleges that if the various

reports have no overlap in numbers, then there are nearly 30,600 eligible voters who have been

wrongly included on the Registration Reset List and could have their registrations canceled on Friday,

September 6, 2019.

The complaint asserts that the Secretary’s intentional reliance on a flawed Registration Reset

List will deny thousands of Ohioans of their fundamental right to vote in violation of the First

Amendment and the Due Process Clause of the Fourteenth Amendment to the United States

Constitution. The complaint further asserts that the Secretary has violated the Help America Vote

Act by failing to implement safeguards to ensure that eligible voters are not removed in error from

the Voter File. 52 U.S.C. § 21083(a)(4)(B).

The ODP filed a motion for a TRO simultaneously with filing the complaint. The ODP seeks

a TRO enjoining the Secretary from removing voters from the Voter File using the Supplemental

Process or the Postal Service’s National Change of Address list. The ODP seeks, in the alternative, a

TRO requiring the Secretary to count all provisional ballots cast by voters on the Registration Reset

List, so long as the voter can be identified.

The ODP notes that certain municipalities in Ohio, including Toledo and some in Cuyahoga

and Summit Counties, will hold a primary election on September 10, 2019 and that the general election

will occur on November 5, 2019. The deadline for registering for the general election is October 7.

F. Procedural History

The Court conducted a telephone conference with the parties at 3:00 p.m. on August 30, 2019,

in accordance with Local Civil Rule 65.1(a). The Court instructed the parties to email to chambers

certain materials referenced during the conference. The parties did so by 5:00 p.m. that day. The

Court further directed the Secretary to submit a response to the motion for a TRO by 10:00 a.m. on

Tuesday, September 3.

The Court conducted an additional telephone conference at 1:00 p.m. on September 3. The

ODP was granted leave to file a supplemental brief, which it did on September 3. The Court has

scheduled a preliminary injunction hearing for September 9, 2019.

II. Standard of Review

Temporary restraining orders are authorized under Rule 65(b) of the Federal Rules of Civil

Procedure. They are extraordinary remedies governed by the following considerations: (1) whether

the movant has a strong likelihood of success on the merits, (2) whether the movant would suffer

irreparable injury absent an injunction, (3) whether issuance of the injunction would cause substantial

harm to others, and (4) whether the public interest would be served by granting the requested

injunction. Ohio Republican Party v. Brunner, 543 F.3d 357, 361 (6th Cir. 2008); see also Winter v. Natural

Resources Defense Council, Inc., 555 U.S. 7, 20 (2008).

The party seeking preliminary relief “bears the burden of justifying such relief, including

showing irreparable harm and likelihood of success.” McNeilly v. Land, 684 F.3d 611, 615 (6th Cir.

2012). “Although no one factor is controlling, a finding that there is simply no likelihood of success

on the merits is usually fatal.” Gonzales v. Nat’l Bd. of Med. Examiners, 225 F.3d 620, 625 (6th Cir. 2000);

accord Jolivette v. Husted, 694 F.3d 760, 765 (6th Cir. 2012).

III. Discussion

A. Likelihood of Success on the Merits

In its motion for temporary relief, the ODP focuses on its Due Process claim as the one for

which it has a strong likelihood of success on the merits. The ODP argues that it is fundamentally

unfair for the State to disenfranchise voters through a voter-purging system that it knows will result

in the cancellation of registrations for about 30,000 voters who are in fact eligible to vote. In support,

the ODP emphasizes that the Registration Reset List’s error rate exceeds 10% (30,000 out of 235,000)

and that the Secretary has failed to respond to the public reports about inaccuracies on the List.

The Court starts with the well-established principle that the “right to vote is a fundamental

right, ‘preservative of all rights.’” League of Women Voters v. Brunner, 548 F.3d 463, 476 (6th Cir. 2008)

(quoting Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886)). “[A]ny alleged infringement of the right of

citizens to vote must be carefully and meticulously scrutinized.” Reynolds v. Sims, 377 U.S. 533, 562

(1964).

The Constitution “leaves the conduct of state elections to the states.” Warf v. Bd. of Elections

of Green Cnty., Ky., 619 F.3d 553, 559 (6th Cir. 2010) (internal quotation marks omitted). Thus,

principles of federalism “limit the power of federal courts to intervene in state elections.” Id. (internal

quotation marks omitted). “[O]nly in extraordinary circumstances will a challenge to a state [or local]

election rise to the level of a constitutional deprivation.” Id. (internal quotation marks omitted).

In light of these two principles – the right to vote and federalism – courts have found that the

“Due Process Clause protects against extraordinary voting restrictions that render the voting system

‘fundamentally unfair.’” Ne. Ohio Coal. for Homeless v. Husted, 696 F.3d 580, 597 (6th Cir. 2012). “Such

an exceptional case may arise, for example, if a state employs non-uniform rules, standards and

procedures, that result in significant disenfranchisement and vote dilution, . . . or significantly departs

from previous state election practice.” Warf, 619 F.3d at 559 (internal quotation marks and citations

omitted). But “garden variety election irregularities” do not rise to that level.” Id.

The Court finds that the ODP has not, at this early stage, demonstrated a strong likelihood of

success on the merits. The OPD’s case rests on the factual assertion that there are up to 30,000 voters

whose names are on the Registration Reset List in error. The ODP has not submitted any evidence

in support of this assertion. Rather, it relies on the reports of other organizations that they have found

errors on the List. See United States v. Baker, 432 F.3d 1189, 1211 (11th Cir. 2005) (holding that Miami

Herald articles were inadmissible hearsay when offered to prove truth of their contents); Horta v.

Sullivan, 4 F.3d 2, 8-9 (1st Cir. 1993). From these reports, the ODP constructs a worst-case scenario

of over 30,000 unique voters being wrongly placed on the List. But the ODP has not, for instance,

submitted declarations from knowledgeable individuals affiliated with the House Democratic Caucus,

League of Women Voters or The Columbus Dispatch explaining the methodology and basis used to

conclude that certain numbers of voters were wrongly included on the List.

When asked by the Court what evidence the ODP has of inaccuracies on the List, counsel

pointed to two public concessions that the Secretary has made: one of 123 voters in Franklin County

being mistakenly removed from the Voter File in January 2019 and one of 1,450 voters being

discovered by the Secretary’s staff on August 16 as wrongly included on Registration Reset List for

removal on September 6, 2019.

This evidence does not establish that the Secretary is implementing measures which render

the voting system fundamentally unfair. The occurrence of a past problem with the List does not

prove the existence of a current one. More importantly, the Secretary has shown in both instances

that he restored those registrants who were eligible to vote to the Voter File. See Grandjean Decl. at

¶¶ 36-38. In other words, the Secretary has acted to ensure eligible voters are not removed from the

File when he has discovered errors on the List.

Even if the outside reports of inaccuracies are true, the ODP has not established a strong

likelihood of success in proving that the Secretary’s system is so fundamentally unfair as to constitute

a Due Process violation. Federal law places an affirmative duty on the Secretary to make “a reasonable

effort to remove registrants who are ineligible to vote.” 52 U.S.C. § 21083(a)(4)(A). Indeed, registrants

who “have not responded to a notice and who have not voted in 2 consecutive general elections for

Federal office shall be removed from the official list of eligible voters, except that no registrant may

be removed solely by reason of a failure to vote.” Id. at § 21083(a)(4)(A) (emphasis added).

In Ohio, county boards of elections administer local elections. O.R.C. § 3501.11. The boards

“[i]nvestigate and determine the residence qualifications of electors,” maintain voter registration

records and “remove ineligible electors from voter registration lists in accordance with law and

directives of the secretary of state.” Id. at § 3501.11(Q), (U). In compiling the Voter File and the

Registration Reset List, the Secretary relies on records submitted by the boards. Id. at § 3503.15(C);

Ohio Sec’y of State Directive 2019-09.

The ODP argues that the Secretary knows there are flaws in the compiled data and that the

Secretary is intentionally moving forward to disenfranchise eligible voters.1 The Court is unwilling at

this preliminary juncture, and without supporting evidence, to infer ill intentions on the part of the

Secretary. To the Court’s knowledge there is no requirement that the Secretary make public the list

of those who would be removed from the voter registration rolls, but he did so. And the Secretary

provided transparency to the point of inviting interested organizations to review the Registration Reset

List and provide feedback. This effort, it would seem, would serve to reduce inaccuracies on the List.

There is no evidence demonstrating that the Secretary is recalcitrant in fixing errors when his own

staff can verify them. As noted above, the Secretary has on two occasions this year restored eligible

voters to the Voter File. Compare with Ne. Ohio Coal. for Homeless, 696 F.3d at 597-98 (finding sufficient

evidence of purposeful conduct where the State announced its intent “to enforce strict disqualification

rules without exception” with respect to precinct rules even after being confronted with evidence that

“systemic poll-worker error” was to blame for thousands of wrong-precinct ballots).

Accordingly, the Court finds that the ODP has not demonstrated a strong likelihood of

success in showing that the Secretary is imposing extraordinary voting restrictions which render the

voting system fundamentally unfair.

B. Irreparable Injury

The Court further finds that the ODP has not met its burden of showing irreparable injury

absent an injunction. Without question, denial of the fundamental right to vote “constitutes

irreparable injury.” Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012). The evidence, however,

establishes that the Secretary has implemented numerous safeguards to enable eligible voters to vote.

To start, those who are identified through the Supplemental Process as not having voted for

two years are provided with a confirmation notice sent by forwardable mail. 52 U.S.C. § 20507(d)(2).

The notice provides a preaddressed, postage prepaid return card. Id. The Secretary does not remove

these individuals from the Voter File unless, over the next four years, they fail to do any of the

following: return the card, vote in any election, engage in any voter activity (such as signing a petition

or filing a voter registration form), update their registration or update or confirm their address at the

Ohio Bureau of Motor Vehicles. See O.R.C. § 3503.21(A)(7), (B)(2); A. Philip Randolph Institute, 138 S.

1 The Sixth Circuit has not decided whether a Due Process violation regarding the right to vote

requires intentional conduct. See Ne. Ohio Coal. for Homeless, 696 F.3d at 597. The ODP proceeds on

a theory that the Secretary has acted intentionally because he has been made aware of the reported

errors on the Registration Reset List.

Ct. at 1840-41; Ohio Sec’y of State Directive 2019-09; Grandjean Decl. at ¶ 24. “It was Congress’s

judgment that a reasonable person with an interest in voting is not likely to ignore notice of this sort.”

A. Philip Randolph Institute, 138 S. Ct. at 1848.

As an added measure, the Secretary implemented the last chance notice and Registration Reset

List system. The last chance notices, sent by forwardable mail on or before July 29, 2019, give

recipients an opportunity to avoid having their registrations canceled by updating or confirming their

address, either online or by returning the notice in a preaddressed envelope. Further, the Secretary

publicly released the Registration Reset List. Presumably, those individuals who find their names on

it in error may notify the Secretary’s Office and have verified errors corrected.

The ODP argues it is inevitable that some eligible voters on the List will either disregard the

last chance notice as inadvertently sent or as junk mail. And some of this group who reside in Toledo

or in Cuyahoga or Summit Counties will face immediate injury when they go to vote in a September

10, 2019 primary, only to find out they were removed from the Voter File on September 6.

The Secretary has represented to the Court and presented evidence that it has instructed

boards of elections in counties holding September 10 primary elections not to cancel the registrations

of voters on the Registration Rest List until after September 10. See Grandjean Decl. at ¶ 30.

In addition, two avenues for voting remain for voters whose names are on the List in error

and who disregard the last chance notice and are removed from Voter File. They can register to vote

by October 7, 2019. The ODP takes issue with this option, arguing that a person who has properly

registered to vote and has been removed from the Voter File through no fault of their own should

not be forced to re-register.

The Court, for argument’s sake, will accept as valid the ODP’s assertion about the burden of

re-registration. Nonetheless, affected voters can take a second avenue and arrive at their polling place

and cast a provisional ballot. 52 U.S.C. § 21082(a); O.R.C. § 3505.181. Provisional ballots “shall be

counted” if the county board of elections or Secretary determines that the individual is “eligible under

State law to vote.” 52 U.S.C. § 21082(a)(4); accord O.R.C. § 3505.183. A cure period of seven days is

granted to provisional voters who are unable to provide the required forms of identification on

election day. O.R.C. § 3505.181(B)(7). The board of elections or Secretary must provide the voter

with free access to discover if their provisional ballot was counted and, if not, the reason the vote was

not counted. 52 U.S.C. § 21082(a)(5); O.R.C. § 3505.181(B)(5).

The ODP argues that access to a provisional ballot does not adequately protect the right to

vote. In support, the ODP cites the findings made by Judge Marbley of this Court in Ne. Ohio Coal.

for the Homeless v. Husted, No. 2:06-cv-896, 2016 WL 3166251 (S.D. Ohio June 7, 2016), aff’d in part,

rev’d in part, 837 F.3d 612 (6th Cir. 2016). In that case, Judge Marbley considered, among other things,

an equal protection challenge to Ohio Senate Bill 216, which required provisional voters to complete

an affirmation form with the voter’s name, birthdate, address, signature and statement of eligibility.

After a bench trial, Judge Marbley made extensive findings of facts, supported by the testimony of

board of elections officials and individual voters, that provisional ballots had not been counted

because of technical errors, such as transposing numbers or writing a name in cursive instead of print.

Id., 2016 WL 3166251, at **14-17. On appeal, the Sixth Circuit found that the State had not offered

“justification for mandating technical precision” in address and birthdate fields. 837 F.3d at 632.

The Court finds that the ODP has not met its burden of showing that the Secretary or boards

of elections still disqualify voters for technical mistakes. In response to Judge Marbley’s and the Sixth

Circuit’s decisions, the Secretary issued Directive 2016-38 on October 14, 2016 that boards of

elections shall not reject a provisional ballot for technical mistakes. See Grandjean Decl. at ¶ 42. The

ODP has not supported its conclusory assertion that Ohio continues to disregard provisional ballots

for trivial reasons.

Moreover, Judge Marbley held (and the Sixth Circuit affirmed) that despite the then-practice

of rejecting ballots on technicalities, the State had not committed a Due Process violation because the

evidence did not reveal that there had been such significant disenfranchisement and voter dilution as

to create a fundamentally unfair voting system. Ne. Ohio Coal. for the Homeless, 2016 WL 3166251, at

*43; accord 837 F.3d at 637 (“Nor do the technical-perfection requirements that SB 205 and SB 216

impose on absentee and provisional voters rise to an exceptional level of unfairness comparable to

grossly non-uniform procedure or significant voter disenfranchisement.”).

Accordingly, the Court finds that the ODP has not met its burden of demonstrating an

irreparable injury absent injunctive relief.

C. Public Interest and Harm to Others

Consideration of the remaining two TRO factors does not alter the Court’s analysis and

conclusion. The ODP brings this suit in part on behalf of voters and the public interest in fair

elections. Thus, the ODP’s argument regarding irreparable injury relates as much to alleged harm to

voters whose names appear on the Registration Reset List as it does to harm to the ODP itself.2

2 The Secretary’s response brief challenges the ODP’s standing to bring this suit. The Secretary raises

substantial issues concerning whether the allegations of injuries to the ODP are speculative and

whether the ODP can establish organizational standing. The Court will withhold ruling on the

The Court finds, as stated above, that the ODP has not demonstrated irreparable injury in the

absence of a TRO. The Court further finds that the public has a substantial interest in the maintenance

of accurate and up-to-date voter registration records. Indeed, the State has an obligation to keep the

records “accurate” and “updated regularly.” 52 U.S.C. § 21083(a)(4). The Secretary has been

transparent in releasing the Registration Reset List to the public and inviting feedback. Court

intervention to disrupt and delay this process would not serve the public interest.

IV. Conclusion

Accordingly, plaintiff’s motion for a temporary restraining order (doc. 2) is DENIED.

s/ James L. Graham

JAMES L. GRAHAM

United States District Judge

DATE: September 3, 2019

standing issues until after the parties have an opportunity to fully address them at the September 9,

2019 preliminary injunction hearing.