Case: 1:06-cv CAB Doc #: 49 Filed: 10/19/12 1 of 19. PageID #: 105

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1 Case: 1:06-cv CAB Doc #: 49 Filed: 10/19/12 1 of 19. PageID #: 105 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION LAURA BOUSTANI, et al., : : Case No. 1:06-cv-2065 Plaintiffs, : : Judge Christopher Boyko v. : : Magistrate Judge Nancy A. J. KENNETH BLACKWELL, (now : Vecchiarelli JON HUSTED) In His Official Capacity : as Ohio Secretary of State : : Defendant. : DEFENDANT SECRETARY OF STATE JON HUSTED S MEMORANDUM CONTRA PLAINTIFFS MOTION FOR ADDITIONAL RELIEF I. Introduction Plaintiffs improperly seek an order from the Court regarding a case that has been closed for more than six years. In 2006, the Court issued two opinions in the above-captioned case involving the constitutionality of Ohio Revised Code (A)(2)-(4), which related to what questions a poll worker could ask when challenging a voter based on citizenship. First, on October 4, 2006, an Opinion and Order permanently enjoined the Secretary of State from enforcing the statutory provisions. As a one-time measure to inform the boards of elections and poll workers of the constitutionality of R.C (A)(2)-(4), the Court ordered upon mutual agreement and in light of the approaching General Election of November 7, 2006, then Secretary J. Kenneth Blackwell to issue a Directive and place, or cause to be placed in each voting location, conspicuous notice. See (R. 18 at 2). The day after the Opinion and Order

2 Case: 1:06-cv CAB Doc #: 49 Filed: 10/19/12 2 of 19. PageID #: 106 Secretary Blackwell complied with the permanent injunction and the mutual agreement order by issuing Directive Second, the Court on October 26, 2006 held (A)(2)-(4) unconstitutional and stated that this action is terminated pursuant to Federal Rule of Civil Procedure 58. See (R. 21). Now, six years after the case was terminated, Plaintiffs file a Motion for Additional Relief that ignores the separation between the permanent injunction, directive and notice order, and the ultimate finding of (A)(2)-(4) as unconstitutional. Plaintiffs do not contend that the Secretary is not following the permanent injunction or ultimate unconstitutionality holding. In fact, Plaintiffs admit that Directive is still in effect. See (R. 44 at 4, 5, 7). Plaintiffs also ignore that fact that the Ohio Revised Code requires the training of board members and poll workers using Secretary prescribed material to ensure compliance with the law. See R.C (B), (G), R.C (B). The Secretary prescribed training materials 1 make plain that Ohio law does not permit the poll workers to require a challenged voter to show citizenship documentation. An Election Day challenge by a poll worker requires the poll worker to fill out Form 10-U, 2 which Plaintiffs acknowledged in an earlier letter to the Secretary. See (R. 44-2). Form 10-U, formally called the Affidavit of Oath Examination of Person Challenged, explains the voter challenge process consistent with the Court s earlier opinions and orders. The Secretary s commitment to firmly following and enforcing this Court s holdings is evidenced by the numerous materials informing election administrators of the constitutional method of handling challenges under (A)(2)-(4). 1 These training materials consist of the Precinct Election Official Training Manual, the Precinct Election Official Quick Reference Guide, and the Precinct Election Official Training Course. For the convenience of the boards of elections and poll workers, the Secretary has created a webpage on his site that includes these materials. See 2 Form 10-U is available online at 2

3 Case: 1:06-cv CAB Doc #: 49 Filed: 10/19/12 3 of 19. PageID #: 107 Accordingly, Plaintiffs Motion for Additional Relief must be denied. The Secretary has complied with the Court s orders and Plaintiffs request fails to state any facts suggesting otherwise. In support of their Motion, Plaintiffs cite only one statute, Fed. R. Civ. P. 60(b), and two cases, Kelley v. Metropolitan County Board of Education of Nashville, Tennessee, 463 F.2d 732, 747 (6th Cir. 1972) and Black and White Children of the Pontiac School System v. School District of the City of Pontiac, 464 F.2d 1030 (6th Cir. 1972). Neither the statute nor the cases explain why the Court retains jurisdiction. As a result, Plaintiffs Motion fails because (1) the requirements for relief from judgment under Federal Rule of Civil Procedure 60(b) have not been met; (2) this Court no longer retains jurisdiction because no unanticipated problems have arisen; (3) the claim is moot as no live case or controversy exists; and (4) Plaintiffs lack standing. II. Background More than six years ago, Plaintiffs brought suit against Secretary Blackwell disputing the constitutionality of R.C (A)(2)-(4), which dealt with what questions a poll worker could ask when challenging a voter based on citizenship. On October 4, 2006, the Court issued an order granting a permanent injunction finding R.C (A)(2)-(4) unconstitutional. (R. 18). The Court wrote: In accordance with the agreement of the parties, in light of the approaching General Elections of November 7, 2006, and to effectuate the implementation of this Order, the Secretary of State shall: (1) issue a Directive, which is not inconsistent with this Opinion and Order, to the local boards of election in all counties of the State of Ohio, and (2) shall place, or cause to be placed in each voting location, conspicuous notice in clear, simple language, reciting that naturalized citizens will not be required to provide additional documentation or information before casting their regular ballot. (R. 18 at 2). On the day after this Court s Order, Secretary Blackwell issued Directive This Directive satisfied the Court mandate by informing the county boards of elections of the 3

4 Case: 1:06-cv CAB Doc #: 49 Filed: 10/19/12 4 of 19. PageID #: 108 unconstitutionality of R.C (A)(2)-(4) and providing a notice to post at all polling locations. Less than a month later, on October 26, 2006, the Court issued a Judgment finding R.C (A)(2)-(4) unconstitutional. (R. 21). The Court did not, however, expand any of the relief it had granted in its October 4, 2006 order but simply held R.C (A)(2)-(4) unconstitutional. Instead of affirmatively retaining jurisdiction over the case, on October 26, 2006, the Court wrote in the Judgment Entry: [T]his action is terminated pursuant to Federal Rule of Civil Procedure 58. (R. 21). Secretary Husted, like his predecessors does not train poll workers to follow the unconstitutional provisions of R.C Former Secretary Blackwell s Directive is still in effect today, which former Secretary Brunner confirmed through her issuance of Directive In addition to the continuing applicability of Directive for the upcoming presidential election, poll workers are being trained on how to properly resolve the question of whether a person who appears at a polling location to vote is a United States citizen. The current poll worker training manual states that voters may be challenged ONLY by a precinct election official or the presiding judge at the check-in table and only for the following reasons: The voter is not a resident of the precinct The voter is not a resident of Ohio; The voter is not a U.S. citizen; or The voter is not of legal voting age. If challenged by a precinct election official for one of the four reasons, above, the prospective voter should complete the Affidavit Oath Examination of Person Challenged (Form 4

5 Case: 1:06-cv CAB Doc #: 49 Filed: 10/19/12 5 of 19. PageID #: U). See Precinct Election Official Training Manual, infra fn. 1, at 38. If a voter is challenged on the basis of not being a United States citizen, the Form 10-U instructs that the only question to be asked is Are you a citizen of the United States? See Form 10-U, infra fn. 2. The form then has a space for the answer. In compliance with the Court s October 2006 opinions, the form states: If the person offering to vote answers the question in the affirmative the person shall be entitled to vote a regular ballot. See id. Accordingly, the Secretary continues to provide instruction consistent with the Court s 2006 decision through the Precinct Election Official Training Manual, Precinct Election Official Quick Reference Guide, Precinct Election Official Training Course, and the Form 10-U. Since this Court s decision in October 2006, the parties have considered litigation to be terminated pursuant to Federal Rule of Civil Procedure 58 until late September On September 25, 2012, Plaintiffs filed a notice of substitution of counsel and a notice to substitute Secretary Husted for former Secretary Blackwell. Plaintiffs also filed a Motion for Additional Relief in which they ask the Court to place a new requirement on Secretary Husted; namely, that he issues a directive before each primary and general election informing county boards of elections that R.C (A)(2)-(4) has been declared unconstitutional, places signage in each polling location that naturalized citizens will not be required to produce additional information before casting a regular ballot, and writes a letter to the leaders and members of the Ohio General Assembly (R. 44 Motion at 2). III. Law and Argument A. Standard of Review Though not clearly stated in their motion, Plaintiffs appear to request additional relief under Federal Rule of Civil Procedure 60(b). See (R. 44 at 6). Relief from a final remedy under 5

6 Case: 1:06-cv CAB Doc #: 49 Filed: 10/19/12 6 of 19. PageID #: 110 Rule 60(b) is an extraordinary remedy, McAlpin v. Lexington 76 Auto Truck Stop, Inc., 229 F.3d 491, (6th Cir. 2000), and the lack of legal and factual argument in Plaintiffs motion bars the additional relief request. Plaintiffs fail to cite a specific section of Rule 60(b)(1)-(6) that warrants the additional relief. The motion should fail from the outset because the burden of proof in all six Rule 60(b) categories is on the movant. See Burrell v. Henderson, 434 F.3d 826, 835 (6th Cir. 2006) (holding that the burden of proof is on the movant in a Rule 60(b)(1) claim); Good v. Ohio Edison Co., 149 F.3d 413, 423 (6th Cir. 1998) (a movant must demonstrate due diligence and material evidence in a Rule 60(b)(2) claim); Abrahamsen v. Trans-State Exp., Inc., 92 F.3d 425, 429 (6th Cir. 1996) (requiring plaintiffs to show by clear and convincing evidence that they prevail under Rule 60(b)(3)); Webb v. Oney, Case No. 1:07-cv-981, 2010 US Dist. LEXIS (S.D. Ohio Apr. 27, 2010) (holding that the burden is on the plaintiff in a Rule 60(b)(4) claim); Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 384 (1992) ( a party seeking modification of a consent decree bears the burden of establishing that a significant change in circumstances warrants revision of the decree ); Olle v. Henry & Wright Corp., 910 F.2d 357, 365 (6th Cir. 1990) (Rule 60(b)(6) applies only in exceptional or extraordinary circumstances and requires facts that show something more than the previous five parts of Rule 60); see also In re Salem Mort. Co., 791 F.2d 456, 459 (6th Cir. 1986) (holding that the plaintiff bears the burden of proof even when he is not the moving party). B. Federal Rule of Civil Procedure 60(b) Prohibits Plaintiffs from Reopening the Case The Court should deny Plaintiffs Motion for Additional Relief because they have not met the requirements for relief from judgment under Federal Rule of Civil Procedure 60(b). Rule 60(b)(1)-(6) provides six different reasons why a court can modify a final judgment and the burden of proof is on Plaintiffs to make a showing of what provisions of Rule 60(b) apply and 6

7 Case: 1:06-cv CAB Doc #: 49 Filed: 10/19/12 7 of 19. PageID #: 111 have been met. However, Plaintiffs Motion fails to even state the specific section of Rule 60(b) they are relying on. See (R. 44 at 6-7). Despite Plaintiffs failure to cite to a specific section of Rule 60(b), a review of the provisions of the rule show that none apply in this case. Additionally, Plaintiffs Motion should be rejected because Plaintiffs do not explain why the timing restrictions contained in Rule 60(c) do not act to bar the additional relief claim. 1. Plaintiffs Have Failed to Timely Show any Mistake, Newly Discovered Evidence, or Fraud. The first three provisions of Rule 60(b) require a showing of mistake, newly discovered evidence, or fraud and must be brought to the Court s attention within one year after the entry of the judgment. Fed. R. Civ. P. 60(b)(1)-(3). Although Plaintiffs fail to state which specific part of Rule 60(b) they are relying on, even if Plaintiffs had cited this portion of Rule 60(b)(1)-(3) neither the record nor the additional relief requested suggests that any of these three have occurred. Nevertheless, the statute cannot be clearer: Any action brought under Rule 60(b)(1)- (3) must be filed within one year after entry of judgment. Fed. R. Civ. P. 60(c)(1). Plaintiffs filed their additional relief claim six years after the final judgment. Thus, Rule 60(c) applies and the statute of limitations has run. 2. Plaintiffs Have Failed to Show That the Judgment is No Longer Equitable. Even assuming, arguendo, that Plaintiffs are attempting to obtain additional relief pursuant to Rule 60(b)(5) by claiming that the order by the Court is no longer equitable, Plaintiffs claim for additional relief still fails. 3 3 Rule 60(b)(4)-(5) also provides that a court may modify a final judgment where that judgment is void or the judgment has been satisfied. Plaintiffs have not alleged that the judgment is void. Nor have Plaintiffs asserted that the judgment has been satisfied, as the Motion for Additional Relief states that the Secretary has not complied with the Court s October 2006 Order. See (R. 44 at 5). Accordingly, Plaintiffs Motion cannot succeed on either of these grounds. 7

8 Case: 1:06-cv CAB Doc #: 49 Filed: 10/19/12 8 of 19. PageID #: 112 First, when a party seeks to modify a judgment based upon a claim that the relief is no longer equitable, it must show that there has been a significant change in facts or law [that] warrants revision of the decree. Rufo, 502 U.S. at 393. A significant change in facts or law may be shown by demonstrating: (1) changes in specific factual conditions; (2) a significant change in the law; (3) unforeseen obstacles that make the decree unworkable; or (4) that enforcement of the decree without modification would be detrimental to the public interest. Id. at 384. Plaintiffs have not met any of these requirements and do not even attempt to show that they can meet any of the requirements. Instead, they simply state that a different generation of poll workers and election officials will be overseeing the November 2012 election and may not be aware that as enrolled is, in fact, unconstitutional. R 44 Plaintiffs Motion at 7. Plaintiffs statement is unsupported and demonstrably false. Each board member and poll worker is given training on the only legitimate bases to challenge the right of act purported elector to vote. See R.C (B) & (D) (requiring training for board members, election judges, and poll workers using materials prescribed by the Secretary); see also infra, at 2 (discussing the training materials that state the correct law). After training, further measures are in place to ensure that poll workers are aware that the only question he or she can ask is whether that purported voter is a citizen of the United States. The poll workers understand that they may not ask any voter to provide documentation of his or her citizenship. In the event any challenge arises regarding a voter, poll workers turn to Form 10-U, which is prescribed by the Secretary. This straightforward form instructs the poll worker that if the purported voter states that he or she is a citizen of the United States, the person shall be entitled to vote a regular ballot. See Form 10-U, infra fn. 2. 8

9 Case: 1:06-cv CAB Doc #: 49 Filed: 10/19/12 9 of 19. PageID #: 113 Additionally, Plaintiffs confuse the role of observers 4 under Ohio law stating that these individuals might be present at polling locations and could be under the mistaken impression that R.C (A)(2)-(4) is still in effect. Plaintiffs ignore the fact that appointed observers are not permitted to challenge the right of any individual to vote. See R.C (stating the abilities of an election observer, which does not include challenging a voter). The absence of any showing of factual or legal changes, unforeseen obstacles, and public interest risk leads to the conclusion that Rule 60(b)(5) is inapplicable to this matter. See Rufo, 502 U.S. at Plaintiffs Have Failed to Show Any Exceptional or Extraordinary Circumstances under Rule 60(b) That Warrants the Granting of Their Motion Plaintiffs also do not qualify for relief under Fed. R. Civ. P. 60(b)(6). This provision only applies when the other grounds for relief are inapplicable. G.G. Marck & Assoc. v. North Am. Invs. Corp., 465 Fed. Appx. 515, 517 (6 th Cir. 2012). In order to take advantage of this provision, a moving party must show exceptional or extraordinary circumstances and must provide facts that justify using this provision in lieu of the first five Rule 60(b) options. Olle, supra at 365; see also Gonzales v. Crosby, 545 U.S. 524, 663 (2005). Plaintiffs have simply not shown any exceptional or extraordinary circumstances. There is no showing that any person has been subjected to R.C (A)(2)-(4). In fact, Plaintiffs allege no facts demonstrating that the Secretary or any county boards of elections are attempting to circumvent the clear unconstitutionality holding of the Court s earlier opinion. Plaintiffs attempt to rely on eleven news articles for their claim that poll workers may attempt to challenge the citizenship of some voters. The reality is that the Directive is still in effect and the Secretary continues to make boards of elections and poll workers aware of the 4 For purposes of this motion, the Secretary assumes that when Plaintiffs refer to poll monitors, they are referring to observers appointed pursuant to R.C

10 Case: 1:06-cv CAB Doc #: 49 Filed: 10/19/12 10 of 19. PageID #: 114 unconstitutionality of R.C (A)(2)-(4) by including necessary information in Form 10- U, Precinct Election Official Training Manual, Precinct Election Official Quick Reference Guide, and the Precinct Election Official Training Course. 5 Secretary Husted has also given $760,000 to county boards of elections for the sole purpose of mandatory poll worker training, 6 where the constitutional application of R.C (A)(2)-(4) will be further reinforced. Plaintiffs Rule 60(b)(6) claim fails as the exception or extraordinary situation the relief motion apparently attempts to reach is far from the actuality on the ground. In the event the Court finds that Rule 60(b)(6) does apply, the time limitation for asserting such a claim is a reasonable time. Fed. R. Civ. P. 60(c)(1). Plaintiffs admit that no directive or notice has been issued since October (R. 44 at 8). Yet, Plaintiffs offer no valid reason for why the situation now differs and requires a new directive and notice. As a six year wait cannot be considered a reasonable time, Plaintiffs claim even if a valid Rule 60(b)(6) claim, which it is not fails under Rule 60(c)(1). See Days Inn Worldwide, Inc. v. Patel, 445 F.3d 899, 901 (6th Cir. 2006) (affirming the lower court decision and holding that waiting over eleven months to file relief from judgment was not reasonable). C. Plaintiffs Claim Fails As No Unanticipated Problems Have Arisen Knowing that Federal Rule of Civil Procedure 60(b) and (c) forbid their claim for additional relief, Plaintiffs attempt to assert that they are entitled to relief because courts retain jurisdiction over cases in order to correct unanticipated problems that have arisen or may arise.... (R. 44, Motion at 6). In support of this novel argument, Plaintiffs cite only two cases, Kelley and Black and White Children. However, the cases cited by Plaintiffs are distinguishable 5 6 For the online links to these sources, see infra fns. 1 & 2. Secretary Husted announced the $760,000 in training funds on July 13, A press release announcing the funding is available at 10

11 Case: 1:06-cv CAB Doc #: 49 Filed: 10/19/12 11 of 19. PageID #: 115 and like their Rule 60(b) claim above, Plaintiffs unanticipated problems argument for jurisdiction fails. The Sixth Circuit does not recognize any special category outside Rule 60(b) for the additional relief Plaintiffs seek. Plaintiffs, as shown above, fail to satisfy any of the provisions within Rule 60(b). As such, Plaintiffs attempt to advance an unanticipated problems argument as an exceptional or extraordinary circumstance to place itself within Rule 60(b)(6). Regardless, Plaintiffs claim for additional relief fails as this is not an unanticipated problem and the court does not have jurisdiction based on Kelley or Black and White Children. From the beginning, Plaintiffs argument fails because no evidence or facts in the motion suggest that unanticipated problems have arisen in the following of the Court s orders. To the contrary, Secretary Husted has clearly stated that R.C (A)(2)-(4) is unconstitutional. In addition to the continuing applicability of Directive for the upcoming presidential election, poll workers are being trained on how to properly resolve the question of whether a person who appears at a polling location to vote is a United States citizen. The current poll worker training manual instructs poll workers in a manner consistent with this Court s 2006 holding. See Precinct Election Official Training Manual, infra fn. 1, at 38. Additionally, when using a Form 10-U, the only question for a poll worker to ask is Are you a citizen of the United States?. See Form 10-U, infra fn. 2. In compliance with the Court s October 2006 opinions, the form states: If the person offering to vote answers the question in the affirmative the person shall be entitled to vote a regular ballot. See id. The questions contained in R.C (A)(2)-(4), which this Court had previously found to be unconstitutional, are not on the form and are not used by poll workers. Plaintiffs have produced no evidence that anyone let alone poll workers is disregarding the instruction 11

12 Case: 1:06-cv CAB Doc #: 49 Filed: 10/19/12 12 of 19. PageID #: 116 that he or she is receiving concerning questions about citizenship. Thus, Plaintiffs have not shown that they are entitled to any type of additional relief based upon changed circumstances. Additionally, neither Kelley nor Black and White Children support Plaintiffs claim that they are entitled to additional relief. Kelley is a school desegregation case that was initially filed in The case proceeded for seventeen years and was repeatedly in front of the court of appeals. During one stage of the Sixth Circuit litigation, the school district asked the appellate court to modify the district court s desegregation order. The court noted two problems with the modification request. First, the school district had not made any motion to the district court in order to obtain relief from the district court s desegregation order. Kelley, 463 F.2d at 744. Second, the school district based its argument on a report that was prepared a month after the school year started, and although the report was sent to the district court judge, no motion of any kind seeking any District Court action was ever filed concerning it. Id. at 745. The Court went on to state that [e]ven more important, the statement on its face suggests that local authorities in Nashville and Davidson County have not made good faith efforts to comply with the order of the District Judge. Id. The Sixth Circuit held that school desegregation decrees are subject to modification based upon a changed circumstance. Id. Similarly, in Black and White Children, the Court was again confronted with a school desegregation case. The district court had originally entered a desegregation order, and another group of plaintiffs filed a separate lawsuit seeking to collaterally attack the order. The court found that the district court specifically retained jurisdiction in the first case in order to correct unanticipated problems which had developed in the carrying out of the court s order. Id. at

13 Case: 1:06-cv CAB Doc #: 49 Filed: 10/19/12 13 of 19. PageID #: 117 Kelley and Black and White Children are easily distinguishable from this case. First, unlike in Kelley where the school district did not make a good faith effort to comply with the court order, Plaintiffs here assert no colorable claim that the Secretary has failed to implement the Court s order finding RC (A)(2)-(4) unconstitutional. In fact, as explained repeatedly throughout this document, the Secretary has issued an array of information to boards to ensure that the board members and poll workers are educated about the law. Further, Plaintiffs cannot claim that compliance with the court order requires the reissuance of Directive and the accompanying notice. It made sense at the time this Court first issued its order finding R.C (A)(2)-(4) unconstitutional to require the Secretary to issue a directive and notice. Section (A)(2)-(4) was a newly enacted law and some poll workers were likely trained for the 2006 election based on its unconstitutional provisions. However, six years have passed since the Court s ruling and R.C (A)(2)- (4) has not been enforced. There is no evidence before the Court that any individual has actually been asked more than whether the person is a citizen of the United States. No Secretary of State since October 2006, when the Court opinion was published, has reissued Directive or the accompanying notice. The reason for this is clear: The Court s order only required that a single directive and notice be issued and that the Secretary not enforce (A)(2)-(4) due to its unconstitutionality. Second, unlike in Black and White Children, the district court has not maintained jurisdiction of the case. The Court s October 26, 2006 Order, which found R.C (A)(2)-(4) unconstitutional, emphatically stated that this action is terminated... (R. 21). Thus, the case was considered terminated from October 2006 until September Plaintiffs claim cites only Kelley and Black and White Children, both of which are 13

14 Case: 1:06-cv CAB Doc #: 49 Filed: 10/19/12 14 of 19. PageID #: 118 distinguishable from this matter. As a result, the unanticipated problems argument fails and the claim should be dismissed. D. Plaintiffs Claim for New Relief is Moot as the Unconstitutionality of R.C (A)(2)-(4) is Unquestioned, and No Live Case or Controversy Exists It is axiomatic that federal courts are courts of limited jurisdiction. The United States Constitution restricts this court to the adjudication of cases or controversies. U.S. Const. Art. III 2; Allen v. Wright, 468 U.S. 737, 750 (1984). The mootness doctrine, which is a subset of the Article III justiciability requirement, demands that a case present a live case or controversy at all times during the pendency of the case. Burke v. Barnes, 479 U.S. 361, 363 (1987). If, for example, a case presented a live case or controversy during the trial phase, but something happened before the next stage of litigation to moot the case, the court is bound to simply dismiss the matter as moot. Id. at 365. As a part of the mootness doctrine, courts have held that the repeal, expiration, or significant amendment to challenged legislation ends the ongoing controversy and renders moot a plaintiff s request for relief. See, e.g., Lewis v. Cont l Bank Corp., 494 U.S. 472, 474 (1990); Mass. v. Oakes, 491 U.S. 576, (1989); Princeton Univ. v. Schmid, 455 U.S. 100, 103 (1982); Kremens v. Bartley, 431 U.S. 119, (1977); Diffenderfer v. Cent. Baptist Church, Inc., 404 U.S. 412, 415 (1972). On October 26, 2006, the Court found R.C (A)(2)-(4) unconstitutional. Plaintiffs request additional relief based on the unconstitutionality of this statute, despite the fact that no evidence is offered that the act is being enforced. Further, the request for the reissuance of Directive and the accompanying notice is not needed as the Secretary has trained board members and poll workers consistent with the Court s earlier decision. Each individual involved in the Election Day voter challenges understands that he or she may not ask to see a 14

15 Case: 1:06-cv CAB Doc #: 49 Filed: 10/19/12 15 of 19. PageID #: 119 voter s documentation of citizenship. U.pdf. Instead, each challenged voter is guaranteed a ballot where that challenged individual states that he or she is a United States citizen. The sole exception to the mootness doctrine applies when there is a reasonable expectation that the challenged conduct will be repeated following dismissal of the case. See Ky. Right to Life, Inc. v. Terry, 108 F.3d 637, 645 (6th Cir. 1997) (holding that amendment to the challenged statute mooted the claim when the state had expressed no intention to reenact the prior law); see also Citizens for Responsible Gov t v. Davidson, 236 F.3d 1174, 1182 (10th Cir. 2000) ( In general, the repeal of a challenged statute is one of those events that make it absolutely clear that the allegedly wrongful behavior here the threat of prosecution under the repealed sections could not reasonably be expected to recur. ); Nat l Black Police Assoc. v. Dist. of Columbia, 323 U.S. App. D.C. 292 (D.C. Cir. 1997) ( Although voluntary cessation analysis applies where a challenge to government action is mooted by passage of legislation, the mere power to reenact a challenged law is not a sufficient basis on which a court can conclude that a reasonable expectation of recurrence exists. Rather, there must be evidence indicating that the challenged law likely will be reenacted. ). This Court has recognized that the legislative repeal or amendment of a challenged statute while a case is pending on appeal usually eliminates this requisite case-or-controversy because a statute must be analyzed by the... court in its present form. Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974, 981 (6th Cir. 2012) (quoting Ky. Right to Life, Inc., 108 F.3d at 644). The issue faced by the Court in the City of Cincinnati case was whether an appeal became moot because the Cincinnati City Council repealed a statute at issue in a case while the case was on appeal. This Court found that such repeal was sufficient to make the appeal moot. Id. at

16 Case: 1:06-cv CAB Doc #: 49 Filed: 10/19/12 16 of 19. PageID #: 120 It noted that in previous cases, this Court has found cases moot where the appropriate legislative authority has repealed the statutory provisions at issue in the litigation. Id. at 981 (citing Ky. Right to Life, 108 F.3d 637; Brandywine, Inc. v. City of Richmond, 359 F.3d 380 (6th Cir. 2004)). So long as there is no threat that the rescinded ordinance will be reenacted, this Circuit has recognized that the appeal at issue is moot and the case should be dismissed. The Sixth Circuit, in Kilroy v. Husted, Sixth Cir. Case No Order entered Oct. 1, 2012, recently found an appeal moot because the statute at issue had been found by the court to be unconstitutional. The Court s reasoning in Kilroy, City of Cincinnati, Kentucky Right to Life, and Brandywine should be followed here. Because the Court has found R.C (A)(2)- (4) to be unconstitutional, it is not and will not be applied to anyone under any circumstances. In fact, no one has alleged that the Secretary or anyone is enforcing the unconstitutional provisions. No allegations have been made since the Court s 2006 order that voter s have been required to do anything more than answer whether they are a citizen upon being challenged. A reissuance of Directive and the accompanying notice is not mandated by the Court s earlier decision, and would serve only to confuse boards and poll workers who already know the correct and constitutional method to handle challenges. The finding of unconstitutionality has the same effect as a repeal of the statute at issue would have. Furthermore, as this Court has noted, since there is no possibility that the statute at issue may be reenacted, there is no live controversy between the parties. E. Plaintiffs Additional Relief Request Should Be Denied As Plaintiffs Lack Standing Plaintiffs have failed to show that they have standing in this case. The power of the federal courts is limited to actual cases or controversies. U.S. Const. Art. III, 2. As such, the burden of proof is on a plaintiff to demonstrate that standing exists. Flast v. Cohen, 392 U.S. 83, 16

17 Case: 1:06-cv CAB Doc #: 49 Filed: 10/19/12 17 of 19. PageID #: (1968). To have standing, a plaintiff must have a personal stake in the outcome, which necessitates establishment by the plaintiff of an actual or threatened injury, a causal connection between that injury and the defendant s conduct, and a likelihood that a court decision in the plaintiff s favor will redress the injury alleged. Northeastern Fl. Chapter of Associated General Contractors of America v. Jacksonville, 508 U.S. 656, (1993). Standing must be present at each stage of litigation. See, e.g., Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997). A general presumption of a future injury is not grounds for present standing. See id. at 109 (rejecting amicus curiae s argument that there is a presumption of [future] injury when the defendant has voluntarily ceased its illegal activity in response to litigation ). Plaintiffs relief request fails to allege a case or controversy, as no evidence has been put forth that the Secretary has attempted to revive the defunct R.C (A)(2)-(4). In fact, the Secretary agrees with Plaintiffs that these statutory provisions are unconstitutional. As a result, he has issued numerous training guides and forms addressing the correct method to handle challenges on Election Day. See infra at 2. Eleven news articles do not work to off-set the entire last six years of compliance with the Court s order, and are at best simply presuming a future injury, which are not grounds for standing. Therefore, Plaintiffs lack standing. 17

18 Case: 1:06-cv CAB Doc #: 49 Filed: 10/19/12 18 of 19. PageID #: 122 IV. Conclusion For the foregoing reasons, this Court should deny Plaintiffs Motion for Additional Relief. Respectfully submitted, MICHAEL DEWINE Ohio Attorney General /s/ Richard N. Coglianese RICHARD N. COGLIANESE ( ) Assistant Attorney General Constitutional Offices Section 30 East Broad Street, 16th Floor Columbus, Ohio (614) ; (614) (fax) Counsel for Defendant Ohio Secretary of State Jon Husted 18

19 Case: 1:06-cv CAB Doc #: 49 Filed: 10/19/12 19 of 19. PageID #: 123 CERTIFICATE OF SERVICE I hereby certify that the foregoing Memorandum Contra was filed electronically with the Court on October 19, Copies have been served upon all counsel of record via this Court s ECF system. I also certify that true and accurate copies have been sent via regular U.S. mail this 19th day of October, 2012, to the following: Daniel P. Tokaji Ohio State University Moritz College of Law 55 W. 12th Avenue Columbus, Ohio Meredith Bell-Platts ACLU Foundation 230 Peachtree Street NW Suite 1440 Atlanta, Georgia Wendy R. Weiser New York University School of Law Brennan Center for Justice 161 Avenue of the Americas 12th Floor New York, New York /s/ Richard N. Coglianese RICHARD N. COGLIANESE ( ) Assistant Attorney General 19