Ohio A. Philip Randolph Institute v. LaRose (Ohio A. Philip Randolph Institute v. Husted)

August 29, 2019 — Demos announced a settlement agreement with Ohio Secretary of State Frank LaRose, concluding the long-running litigation in Ohio A. Philip Randolph Institute v. LaRose that challenged Ohio’s method of purging its voter rolls.

In Ohio, if a registered voter fails to cast a ballot over a two-year period, they are sent a notice and their name is purged from the voter rolls if they either do not respond to the notice or vote in the subsequent four-year period. Known as the Supplemental Process, this purge procedure seeks to identify voters who may have moved and become ineligible to vote.

During the summer of 2015, Ohio removed the names of hundreds of thousands of registered voters from the voter rolls pursuant to the Supplemental Process. Many of these voters, as well as those purged in prior years, showed up to the polls in November 2015 and March 2016 only to learn that their names did not appear on the voter rolls.

For example, in November 2015, navy veteran and lifelong Ohio resident Larry Harmon showed up to his usual polling place to vote on a popular statewide ballot initiative only to be told that his name did not appear in the poll book. Despite the fact that Mr. Harmon had lived at the same address for nearly 16 years, had registered at and voted from that address, and paid Ohio property and income taxes, the state presumed he had moved because he had not voted in a six-year period. Because Mr. Harmon had been de-registered from the state, he was denied his right to vote in November 2015.

Mr. Harmon’s experience was an experience shared by qualified voters across the state of Ohio. And, because lack of access to transportation, inflexible work schedules, inaccessible polling locations, and language barriers, impact the ease with which an individual may cast a ballot, practices like the Supplemental Process tend to disproportionately disenfranchise people of color, low-income individuals, persons with disabilities, those with limited English proficiency, and others who have traditionally been marginalized by our democratic system.

In 2016, the Ohio A. Philip Randolph Institute (“APRI”) and the Northeast Ohio Coalition for the Homeless (“NEOCH”)—organizations that devote time and resources to registering persons of color, low-income people, and housing insecure individuals—along with Mr. Harmon sued the Ohio Secretary of State alleging that the Supplemental Process violated Section 8 of the National Voter Registration Act (“NVRA”).

Section 8 of the NVRA regulates how and when states may remove registered voters from the voter rolls. APRI, NEOCH, and Mr. Harmon alleged that removals pursuant to the Supplemental Process were unlawful on two grounds. First, they alleged that targeting infrequent voters violated Section 8's prohibition on removals by reason of a person's failure to vote. Second, the Plaintiffs alleged that the notice Ohio sent to voters targeted under the Process had not met the specific notice requirements set forth in Section 8.

On June 29, 2016, the District Court held that Ohio's Supplemental Process did not violate the NVRA's prohibition on removals by reason of a registrant's failure to vote. It also found that the Plaintiffs' claim regarding the notice had been largely mooted by changes the Secretary had made to the notice during the pendency of the litigation.

The Sixth Circuit overturned the District Court's decision on September 23, 2016, and sent the case back down to the District Court for an appropriate remedy to be determined. On October 19, 2016, the District Court put relief in place for the November 2016 General Election. The Court ordered that any voters purged in or since 2011 pursuant to the Supplemental Process must have their votes counted so long as they still resided in the county where they were previously registered and had not become disqualified to vote since the time of their removal. This relief was dubbed the "APRI Exception." In November 2016, 7,515 voters had their ballots counted purely as a result of the APRI Exception.

In early 2017, the Ohio Secretary of State asked the U.S. Supreme Court to consider whether use of non-voting to initiate the removal process violated the NVRA's prohibition on removing a person from the registration rolls by reason of that person's failure to vote. The Supreme Court agreed to consider that question on May 30, 2017 and, on June 11, 2018, in a 5-4 ruling, the Court held that Ohio could initiate a purge process based on non-voting. The Court did not consider or rule on the question of whether the notice Ohio had been sending voters targeted for removal under the Supplemental Process met the requirements of the NVRA. That question remained live in the District Court.

During the pendency of the Supreme Court proceedings Ohio continued to apply the APRI Exception in every statewide, local, and special election, and after the Supreme Court's decision, the state agreed to apply the exception to an August 2018 special election.

Beginning in the fall of 2018, the parties continued to litigate Plaintiffs' notice claim. On October 10, 2018, the District Court ruled that Ohio's notice complied with the NVRA in almost all respects, and denied relief that would allow the ballots of purged voters to be counted in the November 2018 election or any elections held thereafter. Plaintiffs appealed this decision to the Sixth Circuit Court of Appeals and requested an emergency injunction pending appeal that would reinstitute the APRI Exception for the November 2018 General Election. The Sixth Circuit granted Plaintiffs the requested injunction, preventing the disenfranchisement of more than 770 qualified Ohio voters.

Ohio proceeded with removals that had been stalled during the course of litigation in January 2019. Pursuant to a directive issued by the Secretary of State, counties were required to send any voters queued for removal in January 2019 with a notice at least 30 days in advance of their scheduled removal. The Secretary also ordered that any interaction that a registered voter has with the department of vehicles be treated as voter activity, which would restore any person who received a Supplemental Process notice back to active status on the voter rolls.

On August 29, 2019, the parties signed a settlement agreement fully resolving the remaining issues in the case and ending the long-running litigation. The agreement keeps the APRI Exception in place for an additional four-years, through the 2022 federal mid-term election. The agreement also mandates continuation of several reforms to the Supplemental Process that were put in place during the litigation, including a requirement that motor vehicle records be used to verify voter addresses, and that voters be sent a final notification 30 days before they are purged, allowing them a chance to correct their registrations, and it requires the state to conduct outreach to unregistered voters encouraging them to exercise their right to register and vote.

Clients

Ohio A. Philip Randolph Institute, Northeast Ohio Coalition for the Homeless, Larry Harmon

Co-counsel 

ACLU of Ohio
The ACLU Voting Rights Project also served as co-counsel during Supreme Court proceedings

State of Ohio
Notice Filed, 2015

• Section 8 Notice Letter 
  Letter notifying Ohio that the Supplemental Process, which initiates a removal procedure after a voter failed to cast a ballot over a two-year period, violates Section 8 of the National Voter Registration Act.  

U.S. District Court for the Southern District of Ohio
Suit Filed, 2016

• Complaint against the Secretary of State
  Complaint alleging that Ohio's Supplemental Process violates Section 8 of the NVRA by (1)  initiating removals based on a registrant's failure to vote, and (2) removing registered voters from the rolls without providing them with adequate notice.  
• Motion for Summary Judgment and Permanent Injunction
  Motion seeking relief on Plaintiffs two causes of action in advance of the November 2016 General Election.
• Court Opinion and Order
  Holding that Ohio's Supplemental Process violates Section 8 of the NVRA by targeting voters for removal from the registration rolls after two years of not voting and failing to notify voters who moved out of state as to how they can continue to be eligible. Also determining that Plaintiffs' claims regarding the insufficiency of Ohio's were not moot.

Sixth Circuit Court of Appeals
Our Appeal, 2016

• Court Opinion
  Ordering a provisional ballot counting process and other relief be implemented to ensure that voters purged using the Supplemental Process, but who still reside in the county where they were previously registered, are able to cast a ballot and have their vote counted. 
• Plaintiffs Motion for Injunction Pending Appeal

Supreme Court
Hearing Ohio's Appeal, 2017

• Our brief
  Brief arguing that the Sixth Circuit's determination that Ohio's Supplemental Process violates the NVRA's prohibition on removing voters "by reason of [their] failure to vote" should be upheld. 
• Amicus briefs filed in support of our petition:
  • 12 States and the District of Columbia as Amici Curiae in Support of Respondents
    Describing the experience of different states in administering their voter rolls and explaining that states have many ways to keep their voter rolls up to date without relying on voter inactivity.
  • AAAJ, National Association of Latino Elected and Appointed Officials Education Fund, LatinoJustice PRLDEF, and 19 Other Organizations
    Reviewing the barriers to voting that are faced by eligible persons with limited English proficiency, which may prevent such voters from exercising their right to vote.  
  • American History Professors
    Reviewing the history of voter purges in the U.S. and Congress's decision to address purge practices in the NVRA.  
  • Common Cause
    Describing the national implications of upholding Ohio's purge practices.
  • Constitutional Accountability Center
    Refuting Ohio’s argument that the doctrine of constitutional avoidance favors deferring to Ohio’s  interpretation of the NVRA and discussing why the Constitution’s Elections Clause grants Congress full authority to implement legislation that creates a code of conduct for voter registration and federal elections.
  • Congressional Black Caucus
    Describing the congressional intent behind the National Voter Registration Act and the Help America Vote act and explains why Ohio's Supplemental Process violates federal law.
  • Current and Former Ohio Elections Officials
    Discussing problems associated with the practice of targeting people for purging based on nonvoting. 
  • Former Department of Justice Attorneys’ amicus brief
    Brief submitted by former DOJ officials who have served under both Republican and Democratic administrations, discussing how the DOJ had consistently interpreted the NVRA to prohibit purge practices like Ohio's for over 20 years and responding to the DOJ’s abrupt change in interpretation of the law.
  • Lawyers’ Committee for Civil Rights Under Law, Rock the Vote, The Nuns on the Bus of Ohio, The Texas Civil Rights Project and the Center for Media and Democracy
    Examining the intent of the NVRA to give disenfranchised populations access to vote – including low-income voters and voters from communities of color
  • League of Women Voters of the US, League of Women Voters of Ohio, and the Brennan Center for Justice 
    Examining how the NVRA was designed to stop states from using unreasonable inferences that a registered voter had become ineligible, outlining state roll-maintenace practices, and noting that only a handful of other states use a practice similar to Ohio's Supplemental Process.
  • Libertarian National Committee
    Examining the First Amendment right not to vote and how removing registrants from the roles for failure to vote is a violation of that right.
  • Libertarian Party of Ohio and the Center for Competitive Democracy
    Discussing how ballot access laws can prevent third parties from forming and fielding candidates, and deter voters from voting due to the lack of diversity among candidates and parties. 
  • NAACP and the Ohio State Conference of the NAACP
    Discussing how Ohio’s Supplemental Process, combined with other barriers the state has imposed to the right to register and vote, disproportionately impacts the ability of people of color to participate in the political process.
  • NAACP Legal Defense and Educational Fund, Inc. and The Leadership Conference on Civil and Human Rights
    Discussing how the DOJ recently switched from opposing Ohio’s voter purge practice to defending it with little explanation and explaining that the Supreme Court should be skeptical of the reversal in this case.
  • National Coalitions in support (National Disability Rights Network, Disability Rights Ohio, AARP, AFL-CIO, SEIU, Democracy Initiative, National Coalition for the Homeless, Columbus Coalition for the Homeless, Miami Valley Voter Protection Coalition)
    Describing the barriers to voting that are faced by individuals with disabilities, hourly/wage workers and seniors.
  • Public Citizen, Inc.
    Discussing the canons of statutory interpreation at issue in Husted v. A. Philip Randolph Institute, and how these cannons should be used to construe the NVRA. 
  • Senator Sherrod Brown
    Brief from former congressman who helped manage the NVRA's floor debate, arguing that Ohio’s Supplemental Process conflicts with the language, structure and purpose of the NVRA.
  • Votevets Action Fund
    Discussing the impact voter purges have on the ability of active duty service members and veterans to vote
• Oral argument
  • Transcript
  • Audio
• Court’s decision in Husted v. APRI
  Holding that Ohio's practice of targeting voters for removal from the registration rolls after two years of not voting did not violate Section 8 of the NVRA's prohibition on roll maintenance practices that result in removal "by reason of a person's failure to vote." 

U.S. District Court for the Southern District of Ohio
Hearing on Remaining, Unanswered Question, 2018

• Court Order
  Opinion and Order considering the Plaintiffs' claim that Ohio's confirmation notice failed to meet the requirements of Section 8(d) of the NVRA and finding in favor of Plaintiffs on certain grounds and Defendant on others. The Opinion and Order denied Plaintiffs' request to implement the APRI Exception for the November 2018 General Election.

Sixth Circuit Court of Appeals
Hearing on Our Appeal, 2018

• Court Order
  Considering Plaintiffs' claim that Ohio's confirmation notice did not meet the requirements set forth in the NVRA, the Sixth Circuit Court of Appeals ordered that the APRI Exception for counting provisional ballots be in place for the November 2018 General Election.

Settlement

• Settlement agreement with Ohio Secretary of State Frank LaRose

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