OHIO REPUBLICAN PARTY; Larry Wolpert v. Jennifer BRUNNER, Secretary of State of Ohio
No. 08-4322
United States Court of Appeals, Sixth Circuit
Oct. 14, 2008
543 F.3d 711
ORDER
A majority of the Judges of the Court in regular active service have voted to hear this case en banc, thus vacating the stay of the Temporary Restraining Order, and to deny the motion of the Appellant Secretary of State to vacate or stay the district court‘s TRO.
SUTTON, Circuit Judge, joined by Chief Judge BOGGS and Judges BATCHELDER, GILMAN, GIBBONS, COOK, McKEAGUE, GRIFFIN and KETHLEDGE.
As this case comes (rapidly) to the court, the parties share some common ground. No one disputes that federal law, as described in the
No one disputes that one of the tools that HAVA creates to address fraud is found in
(5) Verification of voter registration information
...
(B) Requirements for State officials.
(i) Sharing information in databases.
The chief State election official and the official responsible for the State motor vehicle authority of a State shall enter into an agreement to match information in the database of the statewide voter registration system with information in the database of the motor vehicle authority to the extent required to enable each such official to verify the accuracy of the information provided on applications for voter registration.
No one disputes that this provision places mandatory duties on the Secretary of State. At a minimum, it requires the Secretary of State, together with the head
And no one disputes that the Secretary of State has put together an SWVRD System Manual, which is designed to implement these obligations. The pertinent section of that manual says the following:
15.4. BMV Not Confirmed (this process is currently turned off)
Upon receipt of a voter registration record or update, the [Secretary of State] SWVRD will validate certain voter information with the BMV. If the [Secretary] and BMV validation is unable to match the voter record, it may not be confirmed. If this occurs the [Secretary] SWVRD sends the [county boards of election] a message stating that the record may not be “confirmed.” Voter records that are not confirmed must have their information updated and resent to the [Secretary] SWVRD and validation with the BMV will be reattempted.
Resp. to Emergency Mot., Ex. 1 at 35 (Ex. A. to Damschroder Aff.) (emphasis in original). According to the Secretary of State‘s manual, that office at one point implemented
The apparent “turn[ing] off” of this voter-registration-verification process, or at least the discovery that it had been turned off, prompted this dispute. For reasons that the record does not reveal and at a time the record does not reveal, the Secretary of State apparently chose to deactivate at least part of the process, if not all of the process, described in section 15.4 of her manual. In particular, she concedes that at some point she stopped communicating with the county boards about mismatches and stopped renewing validation requests with the BMV after obtaining a mismatch. The Ohio Republican Party (“ORP“) and Larry Wolpert, a state representative, supported by affidavits from two officials of different county boards of election, challenge the Secretary‘s interpretation of her duties under HAVA. As they see it,
This dispute and several others apparently grew out of the Secretary‘s August order to allow simultaneous registration and voting for six days in Ohio in late September and early October. In resolving today‘s dispute, the district court on October 10, 2008, entered a temporary restraining order (“TRO“) directing the Secretary to ensure that “HAVA‘s matching requirements are not rendered meaningless” and to do so either by providing lists of mismatches to the county boards of elections or by providing the county boards of election with a method to search the SWVRD so that they “can isolate and review the mismatches and take appropriate action.” Order at 16.
A panel of this court vacated the order later that same day—October 10. While I tend to agree with some aspects of the panel‘s decision and sympathize with the lack of time it had to address these issues (12 hours or so), I disagree with its key premises for vacating the district court‘s TRO.
Before addressing those issues, it is important to point out why en banc review of the panel‘s decision is appropriate in this matter. While in the normal course it often will be unwise and inefficient to grant en banc review of decisions like this one, this is not a normal case—as the panel‘s interlocutory reversal of the district court‘s TRO itself establishes.
There are three problems with the Secretary‘s request to stay the district court‘s TRO. In the first place, her interpretation of
The Secretary picks neither option by itself. She adopts option one in the main but then borrows from option two by conceding that she must provide “access” to the data containing evidence of mismatches. Only then does she draw a line found nowhere in the statute—that the county boards must be given access; they just need not be given meaningful access. Call that interpretation what you will, but it is hardly a construction of the law mandated by its “plain language.” In picking option two, the district court embraced a sensible and coherent interpretation of these provisions, one sufficiently likely to succeed that it deserves our respect.
Contrary to the dissent‘s and amici‘s interpretation, Washington Ass‘n of Churches v. Reed, 492 F.Supp.2d 1264 (W.D.Wash.2006), and Florida State Conference of the NAACP v. Browning, 522 F.3d 1153 (11th Cir.2008), offer no support for a contrary interpretation. These cases deal with whether HAVA preempts state laws that require successful matching before a would-be voter can register to vote. Reed and Browning are thus two steps removed from today‘s case: (1) We are not dealing with any precondition on voter registration, and (2) no one is arguing that a successful match is a necessary precondition to anything. Put simply, neither case addressed, in holding or dicta, the issue presented here: namely, whether
Nor, it bears emphasizing, is anyone arguing that a mismatch necessarily requires that a registered voter be removed from the rolls. At most, the identification of a mismatch allows a county board to investigate whether the mismatch has a legitimate explanation (say, a recent change of address). See
In the second place, the risks of harm to each party and above all the risks of harm to the public support the TRO. HAVA, all recognize, attempts to balance competing interests: enhancing access to the ballot on the one hand while preserving the value of each vote from the diluting effects of fraud on the other. In doing so, the Act no doubt imposes burdens on the States to further these goals, but the policy interests and hardship concerns that HAVA puts front and center are those affecting the rights of voters. Once we balance those interests, they point unmistakably in one direction. The window to detect and deal with vote-diluting fraud in Ohio begins to close on October 25, when the county boards of election open the first absentee-ballot envelopes. See ROA 482, 696. All this order does is ensure that the county boards may, if they wish, investigate voter-registration discrepancies by that date—in part by using the SWVRD (or information already derived from that database) that was designed for this purpose. If that information becomes available after October 25, when the absentee-ballot opening begins, the opportunity to follow up on voter-registration mismatches will be irretrievably lost, a concern that affects all Ohio voters. At the same time, nothing about Judge Smith‘s order will limit a single individual‘s right to vote in the normal process or at a minimum through a provisional ballot.
The Secretary‘s risk-of-harm arguments focus principally on burdens that the district court‘s TRO imposes on her, not on burdens or risks that the order imposes on Ohio voters. She raises two burdens: that it will be difficult for her office to develop a computer program to get access to this information and that any changes to the SWVRD at this late stage in the election risk creating other problems in the election process. But why all of this is so is never explained, much less supported by affidavits from the Secretary or her office. The bureaucrat‘s lament—that this will be difficult to do—is a hard sell given that the Secretary‘s office previously shared this kind of information with the county boards. And if the question is who will have a harder time obtaining meaningful access to the voter-registration mismatches—the Secretary or the county boards of election—it is difficult to see how anyone can argue that the Secretary faces the harder task. So far as the record shows, the only way the county boards can use the database would be to enter each name of every registered voter in the database to determine whether there was a mismatch for that voter. By contrast, the Secretary told the district court that she could put the program together in two to three days. See ROA 695, 698. As between these burdens, I am hard-pressed to understand why the Secretary‘s alleged difficulties outweigh the counties‘. Indeed, it may be that a county-by-county list of mismatches is a public record under Ohio‘s public records laws, making the list available in a usable format under HAVA and Ohio law. See
In the third place, the Secretary mistakenly claims that the timing exigencies created by this case should be laid at the feet of the plaintiffs. All of this came to a head, the complaint alleges, when the Secretary issued her August advisory. Because state officials had spoken publicly about trying to resolve election disputes through alternative dispute resolution rather than the courts (still a good idea by the way), we should not punish the plaintiffs for failing to run to court the day after the issuance of the advisory. See, e.g., Mark Niquette, Lawyers Urged to Talk Out Election Scraps, Columbus Dispatch, Aug. 16, 2008, at 2B. To this day, it remains unclear when the Secretary told the public that she had changed the office‘s prior policy on implementing
As for the notion that courts should hesitate to alter election procedures on the eve of an election, that is true—so far as it goes. When an election is “imminen[t]” and when there is “inadequate time to resolve ... factual disputes,” it will often be the case that courts will decline to grant an injunction to alter a State‘s established practice. Purcell, 549 U.S. at 8, 127 S.Ct. 5. But that will not always be the case. This generalization surely does not control many election-related disputes—keeping polls open past their established times on election day or altering the rules for casting ballots or provisional ballots during election week—and it is unclear why it ought to control this one. The question here is whether there is sufficient time to resolve these fact disputes when absentee-vote processing starts on October 25, and the district court determined that it will take two to three days to get the information, not that it cannot be done. Nor, it seems clear, are the plaintiffs challenging an established election practice of the State. The established practice in this case is the one the State used in the last national election, not the Secretary‘s innovation of it for this one.
At this stage in the case, there are several reasons for accepting the district court‘s probability-of-success prediction on this issue. Since Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), the Supreme Court has made it clear that
What is difficult is the first inquiry: Did the statute intend to benefit the claimants? In one sense, the answer to that question seems straightforward. In Sandusky County Democratic Party v. Blackwell, 387 F.3d 565 (6th Cir.2004), we held that another provision of HAVA—dealing with provisional ballots,
What makes this question close and presumably what prompted the panel not to rely on this consideration as a basis for vacating the district court‘s TRO is the impact of the Supreme Court‘s decision in Gonzaga University v. Doe, 536 U.S. 273, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002), on this analysis. There, in discussing the first prong of the right-of-action test, the Court emphasized that “it is rights, not the broader or vaguer ‘benefits’ or ‘interests,’ that may be enforced” under
This is a fair argument, one that this court will have to resolve with finality at some point. But it is not an argument with just one plausible answer or even a clear answer. The problem with contending that there is only one way to look at this issue is that the Secretary assumes Gonzaga requires individual-rights-granting language even when there is no individual to whom such language could apply. The beneficiary of every eliminated instance of voter fraud is never any one individual because the individual whose vote would have been diluted—the individual, if you will, whose “right” to vote is impaired—is never known or knowable. Perhaps when a statute effectively benefits everyone but no one in particular, a right of action still may exist, all other things being equal; perhaps it may not. But, either way, it is hard to maintain that the district court should have understood that Gonzaga resolved this point since it did not address, much less discuss, this issue. Nor did Gonzaga overrule earlier holdings that generally permitted the beneficiaries of federal statutes to enforce them through
There is one more oddity with accepting the Secretary‘s position. The right-of-action inquiry requires a court to ascertain what Congress meant in imposing certain mandatory duties on States—to “determine whether Congress intended to create a federal right.” 536 U.S. at 283, 122 S.Ct. 2268. To accept the Secretary‘s position in this case, however, we would have to infer that Congress meant to make both halves of HAVA mandatory—the ease of voting and casting provisional ballots on the one hand and the anti-fraud provisions on the other—yet wished to allow citizens to enforce just one half of those policies. There is no indication in the statute, or for that matter in the legislative history, that this is what Congress meant, and the fact that all of HAVA‘s relevant provisions may be enforced by the United States Attorney General or through administrative processes at the state level,
That brings us to one final point. As the panel pointed out in vacating the district court‘s TRO, the record in this case is far from ample. That is true, but it will almost always be true in the context of a TRO, the nature of which requires rapid decisionmaking. That is what makes the standard of review—abuse of discretion—so relevant to the disposition of this emergency appeal. See Ne. Ohio Coal. for Homeless v. Blackwell, 467 F.3d 999, 1009 (6th Cir.2006). The point is not just that we give substantial discretion to the district court‘s ring-side view of the case in reviewing an order already issued; it is that we entrust the district court to deal fairly with future implementation issues implicated by that order. When it comes to applying abuse-of-discretion review here, one of the key obstacles to the Secretary‘s request for relief is the lack of any affidavit or other factual support for her arguments that altering the relevant computer programs will be difficult or will create material risks to other aspects of the election process. In upholding the district court‘s October 10 order and its October 17 deadline, it is appropriate to assume what we should always assume in denying interim relief—that the district court will respond fairly to requests to adjust the TRO if the Secretary offers reasonable bases for doing so. With that assumption in mind and with the view that this court should now allow the district court to do its job in handling this difficult case, we deny the Secretary‘s motion to stay the district court‘s October 10th TRO.
JULIA SMITH GIBBONS, Circuit Judge, concurring.
I concur in Judge Sutton‘s opinion and offer these additional comments as well.
Before us is the initial issue of whether to grant en banc review of the Secretary of State‘s motion to vacate or stay the district court‘s temporary restraining order directing the Secretary of State (1) to comply with the
The question before us is one of exceptional importance, involving the interpretation and application of statutory provisions designed to combat voting fraud and the dilution of validly cast votes in the context of an election for President of the United States. Although the importance of the issue is clear, the parties suggest that we also appropriately consider the role of the courts in intervening in election matters when an election is fast approaching. Plaintiffs argue that this concern favors en banc consideration, while the Secretary argues that it does not. From my perspective, this concern is better addressed in connection with the merits of the motion to vacate rather than in determining whether to grant en banc review. After all, the
Turning to the merits of the motion, we review the entry of the temporary restraining order for abuse of discretion. In my view, the Secretary has failed to show an abuse of discretion by the district court.
The Secretary‘s argument includes several legal issues. The panel adequately and correctly dealt with the jurisdictional issue. The private right of action issue is a difficult one and, while Sandusky County Democratic Party v. Blackwell, 387 F.3d 565 (6th Cir.2004) may well point toward its availability, it seems that the panel was wise to avoid it. I am inclined to disagree with the Secretary‘s position about the requirements of the statute for the reasons stated in Judge Sutton‘s opinion. In any event, I cannot say that the district court committed a legal error that would constitute an abuse of discretion.
Turning to a balancing of the harms and the public interest, this is the point on which I disagree most strongly with the Secretary‘s position and the panel‘s granting of the stay. The public interest lies in two areas: carrying out the statutory goals of combating voter fraud and vote dilution and preventing disruption of elections. The harm to the plaintiffs is evident from the nature of the claim they assert; they can hardly be required to show actual vote fraud to establish irreparable harm when the county election boards lack the means to detect any fraud that may exist. And from the evidence presented to the district court and the arguments made there by counsel for the Secretary, disruption of the electoral process and interference with the Secretary in carrying out her election responsibilities as a result of the district court‘s order are purely speculative. Thus, any harm to the public interest in avoiding election disruption is speculative as well.
As the Secretary notes, she requested an evidentiary hearing before the district court, which the court denied. This is a typical ruling in situations involving the issuance of a temporary restraining order; permitting an evidentiary hearing would be atypical. The parties did, however, have the opportunity to submit affidavits and make arguments to the district court. As far as I can tell, the Secretary submitted no affidavits relating to harm to her in carrying out her duties or the public interest.1 And her counsel‘s oral arguments to the district court did not emphasize the harm point to any great degree. When questioned about how long compliance with plaintiffs’ requested relief would take, counsel said vaguely that it could take several days or “may take longer.”2 He noted no problems with carrying out the election otherwise as a result of reprogramming to provide the relief sought. The district court‘s reading of the situation was that the parties might well be able to agree to a consent decree. Although that did not occur, obviously, the Secretary‘s position in the district court gave no hint that ordering the requested reprogramming would impede the electoral process.
The panel majority, while professing disapproval of the district court‘s failure to engage in fact finding, adopts the Secretary‘s assertions in her brief on appeal without scrutiny, thus by indirection accepting them as facts. This adoption directly leads to a conclusion that the district court abused its discretion in the balancing of harms, a conclusion that is unsupported by anything that transpired in the district court.
The district court was faced with a situation in which the harms to plaintiffs seemed great, and the harms to the Secretary amounted to some programming of uncertain magnitude. Based on the Secretary‘s representations in the district court, the only public harm at issue was that asserted by the plaintiffs. There was no suggestion and certainly no evidence that granting the plaintiffs’ request might disrupt the electoral process or harm the public in any way.
Abuse of discretion is a deferential standard, and its application here is not only the correct legal standard—it makes good practical sense. See Purcell v. Gonzalez, 549 U.S. 1, 127 S.Ct. 5, 7, 166 L.Ed.2d 1 (2006) (per curiam) (concluding that the main error of the appeals court was its failure to accord proper deference to the findings of the district court). If we leave the district court order untouched, the Secretary is free to take back to the district court any problems she may encounter in carrying out its order. She may also explore with the district court any difficulties that carrying out the order poses for the electoral process generally. She can raise with the district court issues about whether compliance with the order provides plaintiffs with any information they can actually use for any purpose at this point. In short, a district court is the proper forum for raising belated concerns about compliance, not this court.
Returning to the question of en banc review, considered in light of the above analysis, one could argue that my focus on the balancing of the harms undercuts the reasons for granting en banc review. In other words, the argument would be that the case ceases to be one of exceptional importance if its resolution depends largely on a garden-variety balancing of the harms. In this context, I disagree. The exceptional importance of this case lies as much in the public interest concerns and party concerns about the integrity of the electoral process as it does in whether we resolve with finality the existence of a private right of action or the Secretary‘s precise duties under HAVA.
Involving the en banc court in the stay of a temporary restraining order is rarely a good use of our resources and rarely presents an issue of exceptional importance, given the procedural posture. This is one of the rare situations, however, where, given the panel‘s opinion, our en banc intervention is required to protect important statutory and public values. Purcell, 127 S.Ct. at 7 (“A state indisputably has a compelling interest in preserving the integrity of its election process.” (quoting Eu v. S.F. County Democratic Cent. Comm., 489 U.S. 214, 231, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989))).
In my view, the court has correctly denied the motion to vacate.
I concur in the order primarily for the reasons given in the opinion of Judge GIBBONS.
KETHLEDGE, Circuit Judge, concurring.
I write briefly to note my disagreement with Judge Moore‘s statement of the interpretative issue before the court. Judge Moore asserts that “the issue before this court” is whether the
The problem, it appears, is that the Secretary‘s matching system does not enable anyone to do anything with the information it collects. And that, in my view, means the Secretary‘s system likely falls short of the functionality that HAVA requires. For this reason, among others, I believe the district court did not abuse its discretion in entering the order before us.
KAREN NELSON MOORE, Circuit Judge, dissenting from hearing en banc and from reinstating the district court‘s Temporary Restraining Order.
I dissent from the decision of this court to grant the motion for initial hearing en banc and the “Renewed Petition for Immediate En Banc Review,” thereby reinstating the district court‘s Temporary Restraining Order (“TRO“) that imposes burdens on the Ohio Secretary of State (“Secretary“) that are contrary to federal and state law. This case is wholly inappropriate for initial or immediate hearing en banc. Not only have the criteria for initial hearing or rehearing en banc not been satisfied, but also the en banc court is particularly ill-suited to consider in the first instance swiftly developing election-law issues in the compressed time period now available. The majority‘s action is judicial activism in the extreme.
I. OPPOSITION TO GRANT OF EN BANC REVIEW
The panel assigned to this case pursuant to Sixth Circuit rules has considered carefully the materials filed on behalf of both sides in this dispute and has issued an order staying the temporary restraining order improperly entered by the district court. The motion for hearing en banc filed by the Ohio Republican Party and Larry Wolpert (collectively “ORP“) at this time is nothing more than a blatant attempt of ORP to overturn the duly authorized panel‘s decision to stay the district court‘s order that required the Secretary of State to likely violate both the
The Secretary should not be required by various federal judges to violate those federal statutes, nor should she be required to reconfigure and reprogram the state‘s computers and practices this close to an election. Because the granting of en banc
On October 10, 2008, the Sixth Circuit panel stayed the district court‘s temporary restraining order. In our opinion, we explained our reasoning and concluded as follows:
It is clear that the district court‘s four specific orders insert the federal court into the delicate balance struck by HAVA. We have expressed our concern that under established law ORP does not have a private right of action under
42 U.S.C. § 15483(a)(5)(B)(i) . Assuming ORP has the right to bring such an action, we believe that the Secretary is likely to succeed on the merits of the issue of the proper interpretation of HAVA; HAVA does not mandate that the Secretary undertake the particularized matching required by the district court‘s TRO. Further, the irreparable harm caused by the district court‘s TRO is significant. With less than a month until the election, and less than two weeks until the beginning of counting absentee ballots, the Secretary cannot be required to undertake the extensive reprogramming and other changes to the election mechanics without complete disruption of the electoral process in Ohio. The irreparable harm to the voting public caused by the district court‘s order is equally clear. Finally, the intrusion into the state‘s processes by the federal courts with the ensuing confusion regarding the applicable process weighs heavily against the district court‘s order.As the Supreme Court wrote in Purcell, “Given the imminence of the election and the inadequate time to resolve the factual disputes, our action today shall of necessity allow the election to proceed without an injunction” altering the state‘s established practice. Purcell [v. Gonzalez], 549 U.S. [1,] 8, [127 S.Ct. 5, 166 L.Ed.2d 1] [2006]. We hereby stay the district court‘s TRO....
Sixth Circuit panel opinion of October 10, 2009 at 11-12.
ORP asserts that hearing this case initially en banc and bypassing the duly assigned panel (or rehearing en banc) is appropriate because of the importance of the issues presented and the press of time. The time pressures in this case are entirely caused by ORP‘s last-minute challenges to the procedures initiated by the Secretary of State‘s office before the current Secretary began her position in 2007. While the Secretary‘s procedures have been known and in effect for a considerable time, ORP waited to file its suit in the district court until September 26, 2008, and did not file its motion for this temporary restraining order until October 5, 2008. If ORP had truly wanted to have review of the methods and procedures used by the Secretary, it should have brought its action much earlier. More importantly, the NVRA specifically requires that “any program the purpose of which is to systematically remove the names of ineligible voters from the official lists of eligible voters” must be completed at least 90 days prior to a federal election.
Thus ORP has brought its action too late to obtain its requested relief; ORP‘s claimed press of time is both self-created and self-defeating. The press of time is not a valid basis for obtaining hearing en banc in this case.
The other reason asserted by ORP for hearing en banc is that the case “is an extraordinary case, involving the integrity
In summary, a hearing en banc in this case is wholly unwarranted and entirely unjustified. Granting a hearing en banc on this flawed motion and in light of the circumstances of this litigation is unsound intellectually and without any valid justification. Any lawyer reading the plaintiffs/appellees’ motion for initial hearing en banc or its renewed motion can see that substantively it is baseless and procedurally it violates the Federal Rules of Appellate Procedure.1 I dissent from the majority‘s rash and meritless decision to grant en banc review and to reinstate the district court‘s TRO.
II. ORP HAS NO PRIVATE RIGHT OF ACTION
In addition to disagreeing with this court‘s decision to grant en banc review, I must dissent from its decision to reinstate the district court‘s temporary restraining order. On its face, HAVA does not create a private right of action. Supreme Court precedent makes it absolutely clear that the provisions of HAVA at issue here,
A statute is enforceable via a private right of action under
The provisions of HAVA at issue here contain absolutely no rights-creating language. Instead, they impose an obligation on state officials to establish a voter-registration system meeting certain criteria. Section 15483(a)(1)(A) requires each state to “implement ... a ... computerized statewide voter registration list ... that contains the name and registration information of every legally registered voter in the State and assigns a unique identifier to each legally registered voter in the State....”
The paradigmatic statutes containing the requisite rights-creating language are Title VI of the Civil Rights Act,
In Gonzaga, by contrast, the Supreme Court found that a provision of the
Unlike the individually focused language of Title VI and Title IX (“No person ... shall ... be subjected to discrimination ....“), and like the FERPA provision at issue in Gonzaga, the HAVA provisions in this case speak only to government officials. HAVA directs that state election officials “implement ... a computerized statewide voter registration list,”
The HAVA provisions at issue in this case also differ dramatically from the rights-creating language contained in
Finally, nothing in HAVA‘s legislative history indicates that Congress intended to create a private right of action to enforce the provisions at issue in this case,
Despite the fact that HAVA does not create a private right of action, it imposes binding duties on the Secretary of State which are enforceable through alternative means. In states receiving certain federal funding, individuals may challenge actions by the election officer through an administrative complaint system established by the state. See
III. THE MOTION TO VACATE THE TRO SHOULD BE GRANTED
Even assuming that a private right of action exists under HAVA, I believe that Northeast Ohio Coalition for Homeless v. Blackwell, 467 F.3d 999, 1009 (6th Cir.2006), demands that this court issue a stay and vacate the district court‘s temporary restraining order.
A. Success on the Merits
The
implement, in a uniform and nondiscriminatory manner, a single, uniform, official, centralized, interactive computerized statewide voter registration list defined, maintained, and administered at the State level that contains the name and registration information of every legally registered voter in the State and assigns a unique identifier to each legally registered voter in the State (in this subsection referred to as the “computerized list“)[.]
The chief State election official and the official responsible for the State motor vehicle authority of a State shall enter into an agreement to match information in the database of the statewide voter registration system with information in the database of the motor vehicle authority to the extent required to enable each such official to verify the accuracy of the information provided on applications for voter registration.
Under the plain language of the statute, it is clear that all that this section requires
Though Browning and Reed disagree as to whether a state can choose to base voter eligibility solely on matching, they agree on the issue before this court: HAVA does not compel states to use a certain type of match system to verify voters. All that HAVA requires is that election officials have some method by which to verify registrations. The language of HAVA does not mandate what system the states must use to match or verify votes, leaving such decisions to the discretion of the states. The majority of this circuit thus conflicts with the Eleventh Circuit and creates a circuit split that should be resolved by the Supreme Court.
It boggles the mind that the majority can distort this simple language to force a state to implement a specific type of match system. This conclusion flies in the face of HAVA‘s own directive that the State gets to choose how to implement HAVA.
Moreover, the majority‘s view would require the Secretary to violate the
Applying the correct interpretation of this statute to the facts in this case, I believe Ohio is likely in compliance with HAVA. Currently, the Secretary has a database which matches the information a voter provided when registering to vote with the information contained in the Ohio Bureau of Motor Vehicles database. If there is a mismatch, the database notes the mismatch. This record of mismatches in the database is accessible by both the Secretary and the individual boards of election in Ohio. The individual boards of election can query a voter‘s match status in real time in order to verify registration.6 This is all HAVA requires. It is true that the statewide voter database does not provide for a list of these mismatches, but HAVA does not require that level of user-friendliness. To be sure, it might be nice if the system printed out a list of individuals within, for example, a particular precinct, that did not match, but I refuse to
B. Irreparable Harm
The district court found that there would be no harm to others, including the Secretary, if it issued the TRO that ORP sought. This determination is wholly unsubstantiated and contrary to the realities of the TRO issued. In a week, the database that the district court has ordered to be reprogrammed “will be used to generate the Election Day poll books.” Secretary Br. at 19. The district court made its reprogramming order without hearing any evidence pertaining to how such a reprogramming would affect the existing election system and, more importantly, how long it would take to test the reprogrammed system, retrain personnel, and ensure that the new reprogramming did not cause problems. The Supreme Court has exhorted courts to exercise “proper judicial restraint” before making “precipitate changes” to election procedures and policies when “an impending election is imminent and a State‘s election machinery is already in progress.” Reynolds v. Sims, 377 U.S. 533, 585-86, 84 S.Ct. 1362, 12 L.md.2d 506 (1964); see also Purcell v. Gonzalez, 549 U.S. 1, 7-8, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006). Election procedures are matters of state law, and federal courts should hesitate to interfere, particularly
The Secretary must handle all problems related to the reprogramming that is required under the district court‘s novel order embraced by the majority of the en banc court. The most alarming possible side-effect of reprogramming would be that a programming glitch could cause validly registered voters to be inadvertently purged from poll books. Such a glitch would leave the Secretary with a database that can no longer be trusted for use in generating the poll books required for the election, causing “delays and inaccuracies in the creation of the poll books.” Secretary Br. at 19. The short time-frame available to comply with the TRO amplifies the risk of programming errors, one of numerous significant problems presented by the requirements imposed by the district court on short notice.
Additionally, even if the court-ordered reprogramming works perfectly, the Secretary will be faced with a large number of mismatches to contend with at the last minute. See Brennan Ctr. Amicus Br. at 12-13; Ohio Democratic Party (“ODP“) Amicus Br. at 23-24. Because of the time limitations, voters whose information does not match may not be aware that there is any question about their registration and may not have or be able to obtain the documents necessary to further verify their registration. It is unlikely that the state can properly investigate all of the mismatches created by the TRO, and as a result, properly registered voters will likely be forced to cast provisional ballots, will believe that they cannot vote, or will be turned away at the polling places. See Purcell, 549 U.S. at 7, 127 S.Ct. 5 (demanding “careful consideration” of any legal challenge that involves “the possibility that qualified voters might be turned away from the polls“). It is worth noting that the procedures each county uses to deal with these mismatches may not be uniform and could result in disproportionate disenfranchisement. See Bush v. Gore, 531 U.S. 98, 110, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000) (per curiam) (noting importance of statewide standards for resolving questions of voting procedure). This confusion over what HAVA requires in terms of matching would affect not only Ohio, but every state in the country. ODP Amicus Br. at 15-16.
Moreover, at a time when the Secretary is already busy with routine election procedures, the TRO will require the Secretary to expend significant scarce resources on the reprogramming and matching effort. This diversion of resources could leave the state unable to respond to routine election issues such as broken voting machines and lines at polling places. If significant energies are devoted to matching issues, the orderly administration of the election will suffer. For all these reasons, I conclude that the Secretary would suffer irreparable injury if we do not grant a stay and vacate the district court‘s TRO.
C. Substantial Harm to Others and Public Interest
Given the fact that hurriedly reprogramming the database could lead to the purging of validly registered voters, a stay of the district court‘s intrusive TRO is necessary to protect the voters of Ohio. Though I agree with the district court‘s conclusion that “safeguarding the legitimacy of the election of the President of the United States,” Dist. Ct. Ord. at 15, is of great public importance, the TRO is not required to protect that interest. It is striking that both the district court and the majority of this court have determined that the TRO is the proper remedy without any factfinding. The district court stressed that the public, as well as ORP, would be injured
Additionally, available evidence indicates that this intrusive TRO will cause more harm than it seeks to address. Computer matching is not a reliable way to verify voter eligibility. Brennan Ctr. Amicus Br. at 12-13; ODP Amicus Br. at 19-20; ACLU Amicus Br. at 7-8. Indeed, evidence from other states indicates that human error, not fraud, causes most mismatches. ODP Amicus Br. at 19. Data suggests that when the database match is conducted, anywhere from 15 to 30 percent of registered voters will fail to match. Brennan Ctr. Amicus Br. at 12-13. Disturbingly, mismatches have been shown to bar non-white voters more frequently than white voters. ACLU Amicus Br. at 7-8. Data from the Secretary of State shows that there are at least 485,000 new registered voters in Ohio this year. Rich Exner, Ohio Voter Registration Surges, available at http://www.cleveland.com/datacentral/index.ssf/2008/10/ohio_voter_registration_surges.html#more (Oct. 6, 2008). Given these numbers, the TRO issued by the district court and revived by today‘s result, could result in anywhere between 72,750 to 145,500 registered voters being removed from voting rolls, being forced to cast provisional ballots, or being otherwise wrongly disenfranchised.
In contrast to these concrete projections, ORP has failed to present evidence that any voters, including those who have registered in the last year, have committed actual voting fraud. Indeed, data collected by the Brennan Center, the same nonpartisan organization that studied the failure rate of data matching, indicates that actual voter fraud is extremely rare. Justin Levitt, The Truth About Voter Fraud, available at http://www.brennancenter.org/content/resource/truthaboutvoterfraud/ (Nov. 09, 2007). The Brennan Center noted that “claims of voter fraud are frequently used to justify policies that do not solve the alleged wrongs, but that could well disenfranchise legitimate voters.” Id. at 3. In fact, this report noted that “[t]he most common source of superficial claims of voter fraud, and the most common source of error, probably involves matching voter rolls against each other or against some other source to find alleged double voters, dead voters, or otherwise ineligible voters.” Id. at 8. Similarly, the League of Women Voters of Ohio and the Coalition on Homelessness and Housing in Ohio studied the 9 million votes cast in Ohio between 2002 and 2004, and found only four fraudulent ballots. Let the People Vote, available at http://www.cohhio.org/alerts/ElectionReformReport.pdf (Jun. 14, 2005). Therefore, the matching policy mandated by the TRO purportedly to eliminate voter fraud is actually likely to cause mismatches which will erroneously be la
On the eve of the presidential election, ORP asks this court to derail election procedures that have been months in the making. The stay that the majority has vacated would simply have preserved the status quo and allowed Ohio to conduct its elections in the orderly method it had planned. The majority‘s ruling today upends all order, injects the potential for erroneous disenfranchisement of qualified voters into the election, and creates confusion surrounding voting rights on the unverified specter of potential fraud. In a case involving legislative apportionment, an issue which raises the same questions of vote dilution that prompted the district court to issue a TRO, the Supreme Court highlighted the importance of not making hasty, unconsidered changes to election plans on the eve of major elections:
under certain circumstances, such as where an impending election is imminent and a State‘s election machinery is already in progress, equitable considerations might justify a court in withholding the granting of immediately effective relief in a legislative apportionment case, even though the existing apportionment scheme was found invalid. In awarding or withholding immediate relief, a court is entitled to and should consider the proximity of a forthcoming election and the mechanics and complexities of state election laws, and should act and rely upon general equitable principles. With respect to the timing of relief, a court can reasonably endeavor to avoid a disruption of the election process which might result from requiring precipitate changes that could make unreasonable or embarrassing demands on
a State in adjusting to the requirements of the court‘s decree.
Reynolds, 377 U.S. at 585, 84 S.Ct. 1362.
The TRO perverts the clear language of HAVA, and makes a provision meant to “ensure that every American who is eligible to vote can vote” into a tool to effect widespread voter disenfranchisement. 148 Cong. Rec. S2527 (daily ed. Apr. 11, 2002) (statement of Sen. Daschle). The harm that the TRO will inflict on the Secretary, the voters, and the public is clear: elections in Ohio will be chaotic at best, blatantly unfair at worst, and doubt will fall on the validity of election results across the state. The mere specter of voter fraud, often raised but seldom proven, is the only injury that ORP asserts, and this unfounded threat cannot be used to coerce courts into acceding to the eleventh-hour demands of a partisan group that is intimately concerned with the results of the election it seeks to control. Accordingly, I would hold, as I did previously, that we should stay the TRO originally issued by the district court.
IV. CONCLUSION
It is clear that the district court‘s four specific orders insert the federal court into the delicate balance struck by HAVA. I believe that under established law, there is no private right of action under
As the Supreme Court wrote in Purcell, “Given the imminence of the election and the inadequate time to resolve the factual disputes, our action today shall of necessity allow the election to proceed without an injunction” altering the state‘s established practice. Purcell, 549 U.S. at 8, 127 S.Ct. 5. Accordingly, I would hold that: (1) granting of en banc is inappropriate; (2) there is no private right of action and thus ORP‘s claims must be dismissed; and (3) on the merits, we should GRANT the Secretary‘s motion to vacate the district judge‘s intrusive and invalid temporary restraining order. I dissent.
BOYCE F. MARTIN, JR., Circuit Judge.
I join Judge Moore‘s well-reasoned dissent and would deny the petition to rehear this case en banc and would grant the motion to vacate the TRO. In a case full of irony, we have a majority of this court inferring a private right of action—on the basis of, well, nothing—to create utter bedlam in a state‘s election. But Judge Moore has already covered that issue exceptionally well. What I want to highlight is something legitimately troubling, especially compared to what Judge Griffin found so “troubling” in his panel dissent.
What I find troubling is the fact that Judge Batchelder did not recuse herself from voting for rehearing this case en banc, while her husband stands for reelection this year as a state representative in Ohio, whose election will no doubt be sub
The standards on this issue are clear.
When Congress enacted this language as an amendment in 1974, it was not semantics. The previous version of the statute only required recusal when a judge had a “substantial interest” in a case; now judges must recuse themselves when their impartiality “might reasonably be questioned.”
And
Even more significant is the language from
Finally, even assuming that, under some tortured reading of the statute, one could argue that the outcome of this case would not “substantially affect” Judge Batchelder‘s interests here, what cannot be argued is that her vote was proper under the ABA Model Code of Judicial Conduct. ABA Model Code of Judicial Conduct Rule 2.11 (2007) states that a “judge shall disqualify himself or herself” when “the judge‘s spouse or domestic partner” “has more than a de minimis interest that could be substantially affected by the proceeding.” ABA Model Code of Judicial Conduct R. 2.11 (2007). “De minimis” is defined as an “insignificant interest that could not raise a reasonable question re
So I respectfully submit that Judge Batchelder should not have voted in this case, whether or not the Ohio Republican Party‘s claim actually tugs at her heartstrings. But I find this is all particularly ironic because Judge Griffin has said nothing about this, while he decided to publicly “object” to the panel majority‘s procedures in his panel dissent. Specifically, he objected to the fact that Judge Moore and Judge Bright, a distinguished member of the Eighth Circuit, “decided to ignore the en banc petition and issue their order” in “violation of the practices of our court.” Indeed. The Secretary of State‘s motion for a stay was properly before the panel when it was filed and panels generally ought to act first rather than defer every significant decision to the possibility that the full en banc court will later decide to hear the case. And whether the panel acted when it did or waited, we would still be in the exact same position we are in now.
But if we are going to talk about what actions create an appearance of impropriety and undermine faith in our democratic system and in the judiciary‘s independence, then the above speaks for itself. And if we are going to talk about what violates the practices of our court, then I can think of no better example than Judge Griffin‘s decision to impugn a colleague—along with a visiting Judge!—on essentially no basis whatsoever. That said, this is not the first time this sort of thing has happened, so maybe he is right, and that kind of behavior can be considered one of the “practices of our court.” I dissent.
HELENE N. WHITE, Circuit Judge, dissenting.
I am not prepared to challenge the motivations of the parties, the district court, or my colleagues. I dissent because I find the record made in the district court wholly inadequate to support the district court‘s TRO. In a fraction of the time spent by all in pursuing, opposing and ruling on plaintiffs’ petitions, the district court could, and should, have conducted an evidentiary hearing enabling the parties to develop the factual predicates of their arguments. The judges of this court have been forced to opt for one or the other version of the facts, or to defer to the district court‘s conclusions, without record support.
The affidavits and arguments submitted below are inadequate to establish either that defendant failed to comply with
In sum, notwithstanding the exigencies involved, the court should have put plaintiffs to their proofs. I am aware of no case law that supports that a district court has authority, even in cases of emergency,
Christopher PAVEY v. Patrick CONLEY, et al.
No. 07-1426
United States Court of Appeals, Seventh Circuit
Decided June 5, 2008
As Amended on Denial of Rehearing and Rehearing En Banc Sept. 12, 2008