A. Philip Randolph Inst. v. Jon Husted
838 F.3d 699
| 6th Cir. | 2016Background
- Ohio maintains voter-roll maintenance via an NCOA-based “safe-harbor” process and a county-level “Supplemental Process” that first lists voters who lack any “voter activity” for two years and then sends a confirmation notice.
- Under Ohio’s Supplemental Process, a voter becomes subject to removal if (1) a confirmation notice is sent after two years of inactivity, (2) the voter does not respond to the notice, and (3) the voter does not vote for four years (including two federal elections).
- Plaintiffs (APRI, NEOCH, and an individual voter) sued the Ohio Secretary of State under the NVRA and HAVA, alleging the Supplemental Process unlawfully results in removal based on failure to vote and that Ohio’s confirmation notice form violated NVRA notice requirements.
- During litigation the Secretary issued a revised confirmation notice that addressed most but not all of Plaintiffs’ asserted defects (it allowed simple signature confirmation and gave deadlines but did not instruct out-of-state movers how to register in their new states).
- The district court granted judgment for the Secretary, holding the Supplemental Process comported with NVRA/HAVA and that the Secretary’s revised notice mooted most challenges; Plaintiffs appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ohio’s Supplemental Process is permitted under NVRA §8(b)(2)’s exception for procedures in subsections (c) and (d) | The Supplemental Process violates §20507(b)(2) because its two‑year inactivity “trigger” is based on failure to vote and thus results in removal by reason of non‑voting | The Process is permissible because it incorporates §20507(d)’s confirmation‑notice procedure; the except clause allows procedures that are coupled with (d) | The except clause does not automatically permit the Supplemental Process; the two‑year trigger is independently subject to the §20507(b)(2) prohibition (REVERSED) |
| Whether the Supplemental Process “results in” removal by reason of failure to vote in violation of §20507(b)(2) | The two‑year inactivity trigger (which includes voting among “voter activity”) effectively results in removal for failure to vote—even if later coupled with a notice/response step | Because the Process includes the §20507(d) notice and a failure‑to‑respond step before cancellation, removals are not made solely by reason of failure to vote (HAVA permits removals after notice and two federal elections) | The Supplemental Process violates §20507(b)(2); the trigger causes removals that arise as a consequence of failure to vote and cannot be insulated by coupling with the (d) notice |
| Whether Plaintiffs’ challenges to the confirmation notice were mooted by the Secretary’s revised form | The revised form does not cure past and continuing harms and the Secretary has not shown the change cannot be reversed; therefore claims are not moot | Governmental voluntary cessation and assurances about the new form make the claims moot; give deference to government official’s representations | The form change did not moot Plaintiffs’ claims; the Secretary failed to show it is absolutely clear the allegedly wrongful conduct could not recur |
| Whether the revised confirmation notice must tell out‑of‑state movers how to “continue to be eligible to vote” under §20507(d)(2)(B) | §20507(d)(2)(B) requires information for registrants who have moved outside the registrar’s jurisdiction on how to continue eligibility, including instructions for re‑registering in the new state | The statutory phrase “continue to be eligible” refers only to remaining eligible within the original state; the NVRA does not require coaching on interstate re‑registration | The notice must provide information to out‑of‑state movers on how they can continue to be eligible to vote (district court erred in holding otherwise) |
Key Cases Cited
- Sec’y of Labor v. 3Re.com, Inc., 317 F.3d 534 (6th Cir. 2003) (standard of review for injunction-related legal conclusions)
- Communities for Equity v. Mich. High Sch. Athletic Ass’n, 459 F.3d 676 (6th Cir. 2006) (statutory interpretation reviewed de novo)
- Lewis v. United States, 445 U.S. 55 (1980) (start statutory interpretation with text)
- Clark v. Rameker, 134 S. Ct. 2242 (2014) (construe statutes to give effect to all provisions)
- Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000) (voluntary cessation mootness standard: defendant must show it is absolutely clear the wrongful behavior cannot reasonably be expected to recur)
- United States v. Jicarilla Apache Nation, 564 U.S. 162 (2011) (courts avoid interpretations that render parts of a statute superfluous)