United States District Court, S.D. Ohio, Eastern Division
OPINION AND ORDER
L. GRAHAM UNITED STATES DISTRICT JUDGE.
Graham Magistrate Judge Deavers 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.
reasons that follow, the ODP's motion for a temporary
restraining order is DENIED.
The Voter File
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.
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).
The Supplemental Process
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).
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).
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. §
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, 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.
The Last Chance Notice and Registration Reset List
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.
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).
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.
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.
Allegations of Inaccuracies
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.
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