SI- Randolph Institute v. Husted
You may view the statement of interest in pdf format.
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IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
OHIO A. PHILIP RANDOLPH INSTITUTE,
NORTHEAST OHIO COALITION FOR THE
HOMELESS, and LARRY HARMON,
Plaintiffs,
v.
SECRETARY OF STATE, JON HUSTED,
Defendant.
Case No. 2:16-cv-303
JUDGE GEORGE C. SMITH
Magistrate Judge Deavers
STATEMENT OF INTEREST OF THE UNITED STATES
The United States of America (“United States”) respectfully submits this Statement of
Interest pursuant to 28 U.S.C. § 517, which authorizes the Attorney General to attend to the
interests of the United States in any pending lawsuit. This case presents an important question
of statutory interpretation of the National Voter Registration Act of 1993 (NVRA), 52 U.S.C. §
20501 et seq., pertaining to the standard for removing voters from registration rolls. Congress
gave the Attorney General broad authority to enforce the NVRA on behalf of the United States.
See 52 U.S.C. § 20510. Pursuant to this authority, the United States filed a brief as amicus
curiae in the appeal of this matter in the United States Court of Appeals for the Sixth Circuit.
Accordingly, the United States has a strong interest in ensuring that the NVRA is fully and
uniformly enforced.
The United States files this Statement of Interest to explain why Defendant’s proposed
remedial plan does not fully remedy the NVRA violation found by the Sixth Circuit, is
inconsistent with remedial principles in cases involving unlawful voter purges, and is
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inconsistent with the NVRA.
I. BACKGROUND
On September 23, 2016, the United States Court of Appeals for the Sixth Circuit held that
Ohio’s Supplemental Process for removing voters from its registration rolls violates Section 8(b)
of the NVRA because it removes voters for failure to vote. A. Philip Randolph Inst. v. Husted,
No. 16-3746, 2016 WL 5328160, at *9 (6th Cir. Sept. 23, 2016). The Sixth Circuit remanded
the case for this Court to determine an appropriate remedy for Ohio’s NVRA violations.
The parties have submitted their proposals, both of which are premised on permitting
voters who were illegally purged to cast valid provisional ballots. The parties differ on which
provisional ballots should be counted. The State proposes to count the provisional ballots of
voters who were illegally purged in 2015 (as opposed to all identifiable voters harmed by the
State’s illegal purge program), and whose address on their provisional ballot envelope matches
their address on their last registration record. Def.’s Mot. to Implement Remedy, ECF No. 72
at 1; Ex. 1 to id., at 1; see also Def.’s Mem. in Opp’n to Pls.’ Req. for a TRO, ECF No. 80 at 6-9.
Conversely, Plaintiffs propose that Defendant count the provisional ballots of all voters purged
pursuant to the Supplemental Process since 2011 (the apparent limit of Defendant’s
record-keeping), whose current address, as indicated by their provisional ballot, falls within the
same county in Ohio as their most recent voter registration. Mem. in Support of Pls.’
Emergency Mot. for a TRO and Order to Show Cause Why a Prelim. Inj. Should Not Issue, ECF
No. 74 at 2-3.
II. ARGUMENT
A. Defendant’s Proposal Does Not Fully Remedy the Violation and Would Likely
Deprive Thousands of Illegally-Purged Ohio Voters of Any Relief Whatsoever.
Defendant argues that the proper remedy here consists only of overhauling its purge
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process to make it NVRA-compliant during future list-maintenance procedures. Def.’s Mot. to
Implement Remedy, ECF No. 72 at 1. Such a remedy, however, ignores how parties and
courts—including the Sixth Circuit—have resolved similar cases by restoring the franchise to
those from whom it was improperly deprived. Perhaps recognizing this shortcoming, Defendant
proffers a partial remedy that would restore the vote to some, but not all, identifiable voters harmed
by Ohio’s illegal voter purges. But that partial remedy does not fully correct the violation of
federal law. Indeed, it would perpetuate the harms already inflicted on affected Ohio voters, and
deprive many of these voters the right to relief afforded by the NVRA.
1. This Court Should Require Ohio to Restore the Franchise to All Identifiable
Citizens Harmed by Ohio’s Illegal Purges, Not a Mere Subset of Them.
When federal laws have been violated, federal courts “may use any available remedy to
make good the wrong done.” Franklin v. Gwinnett Cty. Pub. Sch., 503 U.S. 60, 66 (1992)
(quoting Bell v. Hood, 327 U.S. 678, 684 (1946)). And the Sixth Circuit has made clear that the
appropriate remedy for voters who have been improperly purged from voting rolls is to restore
their names to those rolls.
In United States Student Association Foundation v. Land, for example, the district court
found that a Michigan statute that led to purging of certain voters from the voting rolls violated the
NVRA. 585 F. Supp. 2d 925, 951 (E.D. Mich. 2008) (“Land I”), aff’d 546 F.3d 373 (6th Cir.
2008) (“Land II”). The district court not only enjoined the state statute’s future enforcement, but
also adopted, and the Sixth Circuit approved, a complete remedy that “ensure[d] that each
individual who ha[d] properly registered to vote but was removed due to an error that [was] out of
his or her control [would] be able to cast a ballot on election day.” Land II, 546 F.3d at 388.
That remedial principle should govern here. This Court should certainly enjoin Ohio’s
future enforcement of its Supplemental Process. But it should also “make good” the harm done
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by ensuring that voters already illegally purged will, to the fullest extent possible, be restored to
the voting rolls and entitled to cast a valid ballot on election day.
Other NVRA cases mirror this approach. In challenges to improper purging procedures
under Section 8 of the NVRA, the United States has obtained complete relief restoring
illegally-purged voters to the rolls. See Amended Joint Stipulation, United States v. Cibola Cty.,
No. 93-1134 (D. N.M. Mar. 19, 2007), ECF No. 89 ¶ 12 (Ex. 1) (restoring improperly-purged
voters to the rolls); Consent Order, United States v. Pulaski Cty., Civil Action No. 4:04-cv-389
(E.D. Ark. Apr. 19, 2004), ECF No. 9 ¶ 7 (Ex. 2) (restoring improperly-purged voters to the rolls);
see also Stipulation of Facts and Consent Order, United States v. City of St. Louis, No.
4:02-cv-1235 (E.D. Mo. Aug. 14, 2002), ECF No. 4 ¶ XV (Ex. 3) (ensuring that improper list
maintenance and polling place procedures did not prevent voters previously targeted for removal
from casting a ballot).1
Indeed, restoring the names of illegally-purged voters to the voting rolls has been an
appropriate and consistent remedy in purging cases long before the NVRA was enacted. See, e.g.,
United States v. McElveen, 180 F. Supp. 10, 13 (E.D. La. 1960), aff’d in part sub nom. United
States v. Thomas, 362 U.S. 58 (1960) (issuing injunction restoring voters to rolls after their
removal was found to violate the Civil Rights Act).
2. Failure to Provide Complete Relief Would Undermine the NVRA and Perpetuate
Proven NVRA Violations.
Defendant’s proposal does not fully remedy the harm done to all identifiable
1 The United States has also obtained full relief in matters to enforce Section 5 of the NVRA
(which requires voter registration opportunities at motor vehicle authorities). See Memorandum
of Understanding, The United States and the State of Connecticut at 9 (Aug. 5, 2016) (Ex. 4)
(requiring state to provide NVRA-mandated voter registration opportunities to citizens who had
previously been denied them); Memorandum of Understanding, The United States and the State of
Alabama at 12 (Nov. 13, 2015) (Ex. 5) (same).
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improperly-purged voters. The proposed remedy also undermines the NVRA and perpetuates
Ohio’s NVRA violations.
Congress granted private parties the right to challenge NVRA violations, and, if necessary,
bring an action for “declaratory or injunctive relief with respect to the violation.” 52 U.S.C. §
20510(b)(2). But under Defendant’s theory, relief “with respect to the violation” applies only to
future voters, not to those voters who were actually harmed by the violation and filed suit as a
result. That is illogical. See Guzman v. U.S. Dep’t of Homeland Sec., 679 F.3d 425, 432 (6th
Cir. 2012) (“Interpretations of a statute which would produce absurd results are to be avoided if
alternative interpretations consistent with the legislative purpose are available.” (internal quotation
marks omitted)).
Moreover, Defendant’s proposed remedy would result in a continuing NVRA violation
unfairly affecting thousands of Ohio voters. Ohio’s Supplemental Process violates Section
8(b)(2) of the NVRA by improperly purging voters due to failure to vote. A. Philip Randolph
Inst., 2016 WL 5328160, at *9. Correcting this violation requires making whole all affected
voters who can reasonably be identified. Thus, if Plaintiffs’ claims that Defendant can identify
voters illegally purged in 2011 and 2013 are correct, and those voters are not permitted to cast a
ballot that counts, they will continue to suffer harm as a direct result of Ohio’s NVRA violation.2
This Court should not ratify and perpetuate that violation by denying voters illegally purged prior
2 The United States recognizes that there may not be sufficient time to restore voters to the rolls
before the November 8, 2016 election, particularly in light of the start of absentee voting by mail
and in-person. That may be a fact question for the Court to determine. And in that circumstance,
allowing a wrongfully purged voter to cast a provisional ballot that will be counted may be
sufficient as a temporary matter. But identifiable voters who were unlawfully removed from the
rolls must be fully restored to the voter registration list once time permits. To the extent that Ohio
does not plan to restore such individuals to the statewide list of legally registered voters, and
instead plans to require them to cast provisional ballots, this would also constitute a continuing
violation of federal law.
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to 2015 the right to vote in upcoming elections, if such wrongly purged voters can be identified.
B. The NVRA Bars Defendant’s Proposal to Reject Provisional Ballots Cast by Voters
Who Have Changed Addresses within a County.
Defendant’s proposal is not merely incomplete and inadequate, but also inconsistent with
the NVRA’s protections for voters who have moved within the same registrar’s jurisdiction.
Under Defendant’s plan, provisional ballots cast by voters who had been purged in 2015 and
restored to the rolls will nonetheless be rejected based on any change of address between their
last date of registration and the date of the election. However, Section 8 of the NVRA does not
allow Ohio to purge voters based on intra-county moves.
Section 8 generally protects voters from removal from the rolls if they have not become
ineligible to vote. Of specific relevance here, Section 8 protects voters who move within the
same registrar’s jurisdiction, because such voters remain eligible to vote.3 Section 8(d)
prohibits purging voters based on a changed address without either (a) the confirmation process
improperly triggered in the instant case, or (b) “confirm[ation] in writing that the registrant has
changed residence to a place outside the registrar’s jurisdiction in which the registrant is
registered.” 52 U.S.C. § 20507(d)(1) (emphasis added). The notice sent to voters under
Section 8(d) similarly makes clear that voters who move within the registrar’s jurisdiction, just
like voters who have not moved at all, will not be removed from the voter registration list. See
52 U.S.C. § 20507(d)(2)(A) (“If the registrant did not change his or her residence, or changed
residence but remained in the registrar’s jurisdiction, . . . .”). Section 8(f) likewise instructs that
when a voter changes address within the same registrar’s jurisdiction, “the registrar shall correct
the voting registration list accordingly, and the registrant’s name may not be removed from the
official list of eligible voters by reason of such a change of address except as provided in
3 In Ohio, the “registrar’s jurisdiction” is the county. 52 U.S.C. § 20507(j)(2).
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subsection (d) of this section.” 52 U.S.C. § 20507(f). Furthermore, under Section 8(c), when
USPS change-of-address information indicates that a voter has moved within the same registrar’s
jurisdiction, officials meet NVRA requirements if they “change[ ] the registration records to
show the new address” rather than initiating the removal process of Section 8(d). 52 U.S.C. §
20507(c)(1)(B)(i).
Each of these provisions confirms that a voter moving within the registrar’s jurisdiction
remains eligible to vote absent some other basis for removal, and that a registrar should update
such a voter’s address rather than removing him or her from the rolls.4
Yet, Defendant would count provisional ballots of improperly-purged voters only if
“[t]he voter’s provisional ballot affirmation reflects the same address at which the voter was last
registered to vote in the State of Ohio at the time of cancellation.” Def.’s Mot. to Implement
Remedy, Ex. 1 at 1, ECF No. 72 (emphasis added); see also Def.’s Mem. in Opp’n to Pls.’ Req.
for a TRO, ECF No. 80 at 17-19. His proposal makes no exception to allow ballots to count for
voters who move within the same county. It is thus inconsistent with Section 8 of the NVRA.
Defendant may contend that he has never officially restored these purged voters to the
registration rolls, and thus rejecting their provisional ballots falls outside of Section 8’s aegis.
But these voters never should have been purged in the first place (and, as was true of failure to
vote, information indicating a move within the same county would not have provided a valid basis
for removal under the NVRA). All eligible voters affected by Ohio’s illegal purge should be able
to cast votes that count, and Defendant should not be permitted to compound his error by
4 Section 8(e) provides yet another safeguard, prescribing a particular procedure for many voters
who move within a registrar’s jurisdiction to cast a valid ballot even if their registration has not
been updated to reflect their new address. See 52 U.S.C. § 20507(e) (permitting voters to cast
valid ballots following within-precinct moves and within-county moves in the same
congressional district).
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disenfranchising these voters again in a manner inconsistent with yet another NVRA provision.
Accordingly, any order fully correcting Ohio’s violation of the NVRA should allow
illegally-purged voters who have moved within a county to cast a ballot that counts, just as
Defendant proposes for those who have not moved at all.
III. CONCLUSION
For the foregoing reasons, Defendant’s proposal does not fully remedy the NVRA
violation, is inconsistent with the remedial principles in cases involving unlawful purges, and is
itself inconsistent with the NVRA.
Dated: October 17, 2016
Respectfully submitted,
BENJAMIN C. GLASSMAN
United States Attorney
Southern District of Ohio
/s/ Matthew J. Horwitz
MATTHEW J. HORWITZ (0082381)
Assistant United States Attorney
Southern District of Ohio
303 Marconi Boulevard, Suite 200
Columbus, OH 43215
VANITA GUPTA
Principal Deputy Assistant Attorney General
Civil Rights Division
/s/ Samuel G. Oliker-Friedland
T. CHRISTIAN HERREN, JR.
RICHARD A. DELLHEIM
SAMUEL G. OLIKER-FRIEDLAND
NEAL R. UBRIANI
Attorneys, Voting Section
Civil Rights Division
U.S. Department of Justice
Room 7259 NWB
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
(202) 353-6196