A. Philip Randolph Inst. v. Jon Husted, 907 F.3d 913

Background

Plaintiffs challenged Ohio’s voter-roll confirmation notice language under the National Voter Registration Act (NVRA) §20507(d) and sought emergency relief pending appeal.
Plaintiffs asked two forms of emergency relief: (1) require county boards to count provisional ballots under the “APRI Exception” in the Nov. 6, 2018 federal election; (2) prohibit Ohio from removing voters under its Supplemental Process if the confirmation notice was sent prior to Aug. 2016.
The APRI Exception permits counting provisional ballots for voters purged 2011–2015 if they voted at the correct location, still reside in the same county, and have not become ineligible; it had been used statewide in recent elections (≈7,500 votes counted in 2016).
The district court previously ruled in part for both sides and denied a permanent injunction; Plaintiffs appealed and moved this Court for injunction pending appeal.
This Court reviewed the four-factor injunction test (likelihood of success, irreparable harm, harm to others, public interest) and conducted de novo review of legal conclusions.
The Court granted the motion in part (ordered implementation of the APRI Exception for Nov. 6, 2018) and denied it in part (no injunction preventing post-election removals under the Supplemental Process for notices sent before Aug. 2016).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Ohio’s confirmation notice violated NVRA §20507(d) by saying a registrant "may" be removed rather than "will" be removed	The notice’s "may be removed" language fails to inform registrants of the concrete consequence and thus violates §20507(d)	The statute requires only notice "to the following effect;" "may" is accurate given other ways to remain on rolls and follows FEC guidance	Court: Plaintiffs have a reasonable (possibly substantial) likelihood of success on this claim; "may" language is in tension with §20507(d) and likely violates it
Whether Plaintiffs are likely to succeed on their argument that the notice’s re-registration-like information effectively purges voters	The confirmation form’s substantive information mirrors registration requirements, making non-response functionally equivalent to removal	The statutory removal mechanism also requires failure to vote during the statutory period; offering re-registration or voting to remain on rolls is not equivalent to purge	Court: This argument fails to show likelihood of success on the merits (not persuasive)
Whether failure to implement APRI Exception before Nov. 6, 2018 would cause irreparable harm	Denying APRI will prevent unlawfully purged but eligible voters from having provisional ballots counted (irreplaceable voting harm)	Implementing APRI now would disrupt election administration and alter status quo shortly before election	Court: Irreparable harm exists for the APRI-related injury; equities and public interest favor injunction to implement APRI
Whether a pre-election injunction preventing post-election removals is warranted	Plaintiffs seek to prevent deletions for notices sent before Aug. 2016 to avoid irreparable post-election harm	State argues removals occur after election, are reversible on appeal, and are not imminently irreparable; late-order injunctions are disfavored	Court: Denied—post-election removals are not sufficiently imminent or irreparable to justify emergency relief

Key Cases Cited

Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150 (6th Cir.) (establishes four-factor test for stays/injunctions)
Purcell v. Gonzalez, 549 U.S. 1 (2006) (cautions against last-minute changes to election procedures)
U.S. Student Ass’n Found. v. Land, 546 F.3d 373 (6th Cir.) (standard of review for injunction issues; legal conclusions reviewed de novo)
A. Philip Randolph v. Husted, 838 F.3d 699 (6th Cir.) (prior Sixth Circuit decision criticizing Ohio notices under NVRA)
Husted v. A. Philip Randolph Institute, 138 S. Ct. 1833 (2018) (Supreme Court held Ohio’s Supplemental Process complied with NVRA §20507(b)(2))
Estill v. Cool, [citation="295 F. App'x 25"] (6th Cir.) (public interest in orderly election administration relevant to injunction analysis)