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Ohio Democratic Party v. LaRose

United States District Court, S.D. Ohio, Eastern Division

September 3, 2019

Ohio Democratic Party, Plaintiff,
Frank LaRose, in his official capacity as Ohio Secretary of State, Defendant.



         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.

         For the reasons that follow, the ODP's motion for a temporary restraining order is DENIED.

         I. Background

         A. The Voter File

         The 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.

         The 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).

         B. The Supplemental Process

         Residency 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).

         The 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).

         The 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. § 20507.

         Litigation 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.

         C. The Last Chance Notice and Registration Reset List

         On June 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.

         The 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).

         Directive 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.

         On June 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.

         D. Allegations of Inaccuracies

         The 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.

         The 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 Colu ...

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