Emergency Motion for Injunction filed in U.S. Appeals Court in APRI v. Husted

Emergency Motion for Injunction filed in U.S. Appeals Court in APRI v. Husted

October 15, 2018

Appellants Ohio A. Philip Randolph Institute (“APRI”), Northeast Ohio Coalition for the Homeless (“NEOCH”), and Larry Harmon move for an injunction pending appeal pursuant to Federal Rule of Appellate Procedure 8(a). Immediate injunctive relief is necessary to protect voters whom Appellee Jon Husted, the Ohio Secretary of State, purged from the voter rolls—and voters scheduled to be purged after November’s election—for not responding to a notice that this Court described as “blatantly non-compliant” with the National Voter Registration Act “NVRA.” A. Philip Randolph Institute v. Husted, 838 F.3d 699, 713 (6th Cir. 2016) (“APRI I”).

From the inception of this lawsuit, Appellants have challenged the adequacy of the confirmation notice that Ohio used for some 20 years to begin the process of purging voters Ohio believed had moved. RE37 (Amended Complaint), PAGEID#237-238. The notices sent before 2016 did not comply with the NVRA because they: (1) failed to fully explain the circumstances that would lead to removal, and therefore “did not adequately inform voters of the consequences of failing to respond,” APRI, 838 F.3d at 703; (2) failed to inform voters of the deadline for returning the confirmation card to affirm that they had not moved outside the jurisdiction; and (3) required eligible voters essentially to complete a new voter registration form to remain on the rolls. Removing voters from the rolls on the basis of these legally insufficient notices directly violates the NVRA.

Read the full emergency motion

During final briefing on the merits in the District Court in 2016, Appellee issued a new notice that corrected these deficiencies, and the District Court ruled Appellants’ claims were thereby rendered moot. This Court reversed because Appellee remained free to reinstitute the deficient notice absent injunctive relief and because correcting the notice did not address the harm to voters who had been purged after receiving “blatantly non-compliant” notices. Appellee did not seek certiorari on that aspect of this Court’s ruling. APRI I, 738 F.3d at 713.

Following remand from the Supreme Court, Appellee argued—for the first time—that the notices had been lawful all along. On October 10, 2018, the District Court agreed—notwithstanding this Court’s strong language to the contrary—and denied Appellants’ request for a permanent injunction. This decision, coming as it did right after the close of registration, leaves Ohio voters purged without adequate prior notice with no way to correct their registrations before the November election. Issuance of an injunction by this Court is therefore necessary to protect Ohioans’ fundamental right to vote.

Appellants ask this Court to order Appellee to issue a directive to Ohio’s county boards of elections (“Boards”) instructing them (i) to count certain provisional ballots that may be cast in the November 6, 2018 Federal Election, to process certain UOCAVA absentee ballot requests, and to send information to certain voters who request mail ballots, all in accordance with a set of procedures, known as the “APRI Exception,” that have been successfully implemented in every Ohio election since November 2016; and (ii) during this appeal, not to remove any voter under a voter-roll-maintenance procedure known as the Supplemental Process if the confirmation notice required to be sent in accordance with Section 8(d) of the NVRA was sent prior to August 2016. Because of the impending federal election on November 6, 2018, Appellants request Appellee be ordered to respond no later than October 17, and Appellants to reply no later than October 18.