Case Nos. 16-3603/16-3691 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT NORTHEAST OHIO COALITION FOR THE HOMELESS, et al. Plaintiffs-Appellees/Cross-Appellants v. JON HUSTED, In His Official Capacity as Secretary of State, et al. Defendant-Appellants/Cross-Appellees An appeal from the Judgment in a Civil Case dated June 7, 2016, in the United States District Court for the Southern District of Ohio, Case No. 2:06-cv-896 (Doc. No. 691) PLAINTIFFS-APPELLEES MOTION TO STAY THE MANDATE PENDING DISPOSITION OF A PETITION FOR WRIT OF CERTIORARI Subodh Chandra Donald P. Screen Ashlie Case Sletvold Sandhya Gupta THE CHANDRA LAW FIRM LLC 1265 W. 6 th St., Suite 400 Cleveland, OH 44113-1326 Phone: 216.578.1700 Fax: 216.578.1800 Caroline H. Gentry Ana P. Crawford PORTER, WRIGHT, MORRIS & ARTHUR LLP One South Main Street, Suite 1600 Dayton, OH 45402 Phone: 937.449.6748 Fax: 937.449.6820 Attorneys for Plaintiffs NEOCH and Columbus Coalition for the Homeless Donald J. McTigue J. Corey Colombo Derek S. Clinger
MCTIGUE & COLOMBO LLC 545 East Town Street Columbus, OH 43215 614.263.7000 Phone 614.263.7078 Fax dmctigue@electionlawgroup.com ccolombo@electionlawgroup.com dclinger@electionlawgroup.com Attorneys for Intervenor-Plaintiff Ohio Democratic Party 2
Plaintiffs-Appellees respectfully move this Court, under Federal Rule of Appellate Procedure 41(d)(2) and Sixth Circuit Rule 41(a), for a stay of this Court s mandate, and reinstatement of the District Court s injunction regarding the challenged perfect-form requirements only, pending the filing and final disposition of a petition for a writ of certiorari. 1 As demonstrated below, the certiorari petition [will] present a substantial question and... there is good cause for a stay. Fed. R. App. P. 41(d)(2)(A). A substantial question exists, and there is good cause for a stay, because there is (1) a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari; (2) a fair prospect that a majority of the Court will vote to reverse the judgment below; and (3) a likelihood that irreparable harm will result from the denial of a stay. 2 Hollingsworth v. Perry, 558 U.S. 183, 190 (2010); see also United States Postal Serv. v. AFL-CIO, 481 U.S. 1301, 1302 (1987) (Rehnquist, C.J., in chambers) (granting application for a stay). 1 Plaintiffs-Appellees do not seek a stay of this Court s injunction relating to pollworker assistance or the seven-day cure period for absentee and provisional voters. 2 [J]udges of the lower courts are to apply the same criteria and conduct the same judicial inquiry as the Supreme Court in deciding whether to grant a stay of the mandate pending the filing and disposition of a petition for a writ of certiorari. United States v. Holland, 1 F.3d 454, 456 (7th Cir. 1993); see also 1994 Adv. Comm. Notes to Fed. R. App. P. 41(b). 3
The certiorari petition will present more than one substantial question because this Court s September 13, 2016 panel decision, and its subsequent October 6, 2016 denial of Plaintiffs-Appellees petition for rehearing en banc: (1) failed to resolve a conflict between prior decisions of this Court and the Eleventh Circuit on the important question of whether a private right of action exists to sue for a violation of the Materiality Provision of the Civil Rights Act of 1964, now codified at 52 U.S.C. 10101(a)(2)(B), compare McKay v. Thompson, 226 F.3d 752 (6th Cir. 2000) with Schwier v. Cox, 340 F.3d 1284 (11th Cir. 2003); (2) created a conflict with a decision of the Third Circuit, Ortiz v. City of Phila. Office of City Comm rs Voter Registration, 28 F.3d 306 (3rd Cir. 1994), by applying de novo review to reverse the district court s factfinding of discriminatory effect under Section 2 of the Voting Rights Act, 52 U.S.C. 10301 ( Section 2 ); (3) created a conflict with a decision of the Fourth Circuit, League of Women Voters of North Carolina v. North Carolina, 769 F.3d 224 (4th Cir. 2014), by implying that Section 2 does not require courts to examine the cumulative impact of a law s restrictions but instead permits courts to analyze each restriction separately; 4
(4) decided important federal questions related to the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution in ways that conflict with the Supreme Court s decisions in Bush v. Gore, 531 U.S. 98 (2000) and Crawford v. Marion Cty. Elec. Bd., 553 U.S. 181 (2008) by (a) holding that equal protection is only violated by an undue burden imposed on all voters rather than a sub-group of voters, (b) holding that it is lawful for there to be differing standards among county election boards in rejecting or counting ballots cast by voters making identical technical errors on forms accompanying their ballots; and (c) modifying the District Court s injunction to enforce some but not all of the challenged technical-perfection requirements for absentee voters, and reversing the injunction to enforce all of these requirements for provisional voters; and (5) decided an important question of federal law that has not been, but should be, decided by the Supreme Court by holding that only significant disparate impacts violate Section 2. There is also good cause for a stay pending the Supreme Court s consideration of these important questions. Fed. R. App. P. 41(d)(2)(A). In the two 5
general elections that have taken place since the challenged laws went into effect, the laws technical-perfection requirements disenfranchised thousands of otherwise eligible absentee and provisional voters. And many more will be disenfranchised in the imminent Presidential election. Based upon the voluminous evidence presented at a 12-day bench trial, the District Court found that these laws fall particularly hard on minority and homeless voters who struggle with literacy, mental illness, and other circumstances that make it difficult for them to fill out the required voting forms with technical perfection. The trial evidence also showed that elections boards must reject ballots due to a lack of technical perfection even if they have sufficient information to verify the voter s eligibility and identity, a situation that many board officials conceded was unnecessary and unfair. Because boards were able to determine the eligibility and identity of voters before the challenged laws went into effect and can do so even without every field on the accompanying form being completed with technical perfection the State will not be harmed by a stay. By contrast, Plaintiffs-Appellees, their members, and thousands of Ohio voters will be irreparably injured if this decision is allowed to go into effect pending Supreme Court review. The balance of equities thus tilts decisively in favor of a stay pending Supreme Court consideration. 6
ARGUMENT I. There is a reasonable probability that the Supreme Court will grant certiorari and a fair prospect that the Supreme Court will reverse. This Court must consider whether there is a reasonable probability that the Supreme Court will accept certiorari and whether there is a fair prospect of reversal. In its analysis, this Court should consider the issues that the applicant plans to raise in the certiorari petition... the Supreme Court s treatment of other cases presenting similar issues, and the considerations that guide the Supreme Court in determining whether to issue a writ of certiorari. Williams v. Chrans, 50 F.3d 1358, 1361 (7th Cir. 1995) (per curiam). Reasons that support granting a petition for a writ of certiorari include: [A] United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter... [or] has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court. Sup. Ct. Rule 10(a), (c). All of these reasons are present in this case. A. Circuit splits are a principal reason for granting certiorari, and there are three circuit splits in this case. This Court s panel decision either continued or created three circuit splits that make it reasonably probable that the Supreme Court will grant review. Braxton v. United States, 500 U.S. 344, 347 (1991) ( A principal purpose for which we use 7
our certiorari jurisdiction, and the reason we granted certiorari in the present case, is to resolve conflicts among the United States courts of appeals and state courts concerning the meaning of provisions of federal law. ). There is a fair prospect of a reversal regarding all three of these issues. First, a circuit split exists between this Court and the Eleventh Circuit on the critical issue of whether the Materiality Provision of the Civil Rights Act of 1964, 52 U.S.C. 10101(a)(2)(B), confers a private right of action. Compare McKay v. Thompson, 226 F.3d 752 (6th Cir. 2000) with Schwier v. Cox, 340 F.3d 1284 (11th Cir. 2003). In stark contrast to the McKay court s cursory treatment of this issue, the Schwier court reviewed the pertinent legislative history and prior Supreme Court precedent at length and criticized McKay for its incomplete and misguided analysis. Contrary to McKay s holding that a provision allowing suit by the Attorney General foreclosed a private right of action, legislative history and precedent showed that by including such a provision, Congress did not intend to limit private individuals ability to also bring suit. See Schwier, 340 F.3d at 1294 96 (citing, e.g., Allen v. State Board of Elec., 393 U.S. 544 (1969); Morse v. Republican Party of Virginia, 517 U.S. 186 (1996) (plurality opinion)); see also, e.g., id. at 1295 (observing that House Judiciary Committee stated that bill s purpose was to provide means of further securing and protecting the civil rights of persons within 8
the jurisdiction of the United States ) (citing H.R. Rep. No. 85-291 (1957), reprinted in 1957 U.S.C.C.A.N. 1966, 1966) (emphasis added in Schwier). Given the Eleventh Circuit s thorough analysis and the issue s significance here because the challenged laws appear to violate the Materiality Provision on their face there is both a reasonable probability that the Supreme Court will grant review on this issue and a fair prospect of reversal. Next, the Court s decision has created a circuit split between this Court and the Third Circuit on the appropriate standard of review to be applied to a district court s fact-finding of discriminatory effect under Voting Rights Act Section 2. See Ortiz v. City of Philadelphia Office of City Comm rs Voter Registration, 28 F.3d 306 (3rd Cir. 1994). While the accepted standard is clear-error review, see, e.g., Anderson v. City of Bessemer City, 470 U.S. 564 (1985); Ortiz, 28 F.3d at 308 09, this Court implicitly employed a de novo standard, and substituted its own fact-findings for the District Court s findings. See Dissenting Op. at 51, 53. Thus there is both a reasonable probability that the Supreme Court will grant review on this issue and a fair prospect of reversal. Finally, the panel majority s decision conflicts with the Fourth Circuit s decision in League of Women Voters of North Carolina v. North Carolina, 769 F.3d 224 (4th Cir. 2014), on the issue of whether Section 2 of the Voting Rights Act requires courts to examine the cumulative impact of a law s restrictions rather 9
than analyze the impact of each restriction separately. As the Fourth Circuit held, failing to consider the cumulative effect on minority access to the ballot box is hard to square with Section 2 s mandate to look at the totality of the circumstances, 52 U.S.C. 10301(b), as well as Supreme Court precedent requiring a searching practical evaluation with a functional view of the political process. Id. at 242 (citing Thornburg v. Gingles, 478 U.S. 30, 45 (1986)). A panoply of regulations, each apparently defensible when considered alone, may nevertheless have the combined effect of severely restricting participation and competition. Id. (quoting Clingman v. Beaver, 544 U.S. 581, 607 08 (2005) (O Connor, J., concurring in part, concurring in the judgment)). Yet the panel majority here took the piecemeal approach discredited in League of Women Voters, considering the impact of each legislative change individually SB 205 s address and birthdate requirements, the pollworkerassistance prohibition, the shortened cure period, SB 216 s perfection requirement rather than the totality of the circumstances. See Dissenting Op. at 55 56; Maj. Op. at 15 17. As the dissent observed, [t]he Majority s approach creates the incentive for state legislatures to pass numerous electoral mechanisms so that courts are forced to put on blinders when it comes to understanding the combined effects of these mechanisms. Id. at 56. 10
While the Fourth Circuit s approach gives effect to Congress s intent, the Sixth Circuit s far more narrow and restrictive approach to assessing discriminatory effect eviscerates the Act s ability to protect minority voters from having their right to vote abridged. There is thus both a reasonable probability that the Supreme Court will grant review on this issue and a fair prospect of reversal. B. The remaining issues either conflict with Supreme Court decisions or constitute an important federal question that should be decided by the Supreme Court. The remaining issues for which Plaintiffs-Appellees intend to seek Supreme Court review either conflict with the Supreme Court s previous decisions or constitute an important federal question that the Supreme Court has not reviewed but should review. Both are grounds for granting a petition for writ of certiorari. First, this Court s holding that a law must impose an undue burden on all voters to violate the Equal Protection Clause of the Fourteenth Amendment conflicts with Crawford v. Marion Cty. Elec. Bd., 553 U.S. 181 (2008). This Court relied on Justice Scalia s concurring opinion that would foreclose consideration of individual impacts, rather than Justice Stevens governing opinion that an undue burden that falls upon fewer than all voters can violate equal protection. Because, unlike in Crawford, there is a well-developed factual record here that supports the District Court s finding of an undue burden on a sub-group of voters, there is a fair prospect that the Supreme Court will reverse on this issue. 11
Second, this Court s holding that some county elections boards can lawfully disenfranchise voters based on technical errors while other boards are counting ballots with identical types of errors conflicts with the Supreme Court s decision in Bush v. Gore, 531 U.S. 98 (2000). In Bush, the Supreme Court found an equalprotection violation where Florida counties were using varying standards to determine what was a legal vote, with some using a more forgiving standard than others, leading to unequal evaluation of ballots. Id. at 107,106. This, as reflected in the voluminous evidence introduced at trial, is exactly what was happening here, with some Ohio counties counting, for example, ballots with transposed SSN-4 digits or address mismatches or birthdate errors, while other counties rejected such ballots. See R.687-2 to R.687-9, PageID#33497 33716 (Tables A through H to Pls. Prop. Findings of Fact). This was arbitrary and disparate treatment by county, violating the rudimentary requirements of equal treatment and fundamental fairness. Bush, 531 U.S. at 107, 109. Even Defendant Secretary of State, through his representative at trial, admitted that the evidence presented at trial showed that voters are being subjected to different standards in the application of Senate Bills 205 and 216, R.666, Damschroder Tr., PageID#31106. Damschroder admitted it was a serious problem that, for example, voters in different counties in the state will have their ballots counted or not counted based on the issue of whether they 12
fill their names in cursive or not. R.665, PageID#31073; see also Damschroder Tr., R.666, PageID#31094 (admitting that evidence presented at trial would cause [him] concern about non-uniform standards being applied to Ohio s voters across the counties ); Second Br. at 31, 72 (Doc. 44). Given the plain conflict with Bush v. Gore and the importance of ensuring that all eligible voters votes be counted in the imminent presidential election, there is a fair prospect that the Supreme Court will reverse on this issue. Third, this Court s modification of the District Court s injunction to enforce some but not all of the challenged technical-perfection requirements for absentee voters and simultaneously to reverse the District Court s injunction and thereby impose technical-perfection requirements upon eligible provisional voters creates a situation where voters who make technical errors or omissions are treated in an arbitrary and disparate manner. The decision thus conflicts with Bush v. Gore. Bush held: When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied. 531 U.S. at 109. Such assurance is absent here. As a result of this Court s decision, absentee-ballot voters who make minor errors or omissions in the ID or name fields and even write their name in legible cursive rather than in print will be disenfranchised even where their identity or eligibility is not in question, while voters with birthdate and address errors/omissions will 13
have their vote counted. The Court offered no explanation for treating these similarly situated voters differently. Similarly, the Court s decision created an equal-protection problem between absentee-ballot voters and provisional-ballot voters who make the same type of mistakes on their ballot forms (and who are further similarly situated because their eligibility and identity can be confirmed). Under the Court s order, for example, an absentee-voter who makes a birthdate-field error, yet whose eligibility can otherwise be determined, may not be disenfranchised, while a provisional-voter who makes a birthdate-field error yet whose voter registration and eligibility is otherwise verified can be disenfranchised. While the Court touted the state s purported interest in using the five-fields information on the provisional form to register new voters, that rationale cannot justify the disparate treatment for provisional voters who are already registered and whose eligibility and identity, like their absentee-voter counterparts, can be confirmed despite the error. The Secretary of State, through his representative, dispositively admitted as much at trial: Q..you don t have to have voters disenfranchised who are already registered to obtain the benefit of the provisional ballot affirmation form doubling as a voter registration form for those who are not registered, correct? 14
A. Correct, unless they can t be found. Q. Generally speaking, correct? A. Yes, generally speaking. Damschroder Tr., R.665, PageID#31049. The rudimentary requirements of equal treatment and fundamental fairness are not met. Thus there is a fair prospect that the Supreme Court will reverse on this issue. Finally, this Court decided an important question of federal law that the Supreme Court has not, but should, decide, when this Court held that Section 2 is only violated by a significant disparate impact. Given the lack of support for this holding in Section 2 s text or legislative history, there is a fair prospect that the Supreme Court will reverse on this issue. II. Good cause exists to stay the mandate. In determining whether good cause exists to stay the mandate, courts consider the equities of granting the stay and whether the applicant will suffer irreparable injury if the stay is denied. See Nanda v. Bd. of Trs. of the Univ. of Illinois, 312 F.3d 852, 853 (7th Cir. 2002). The irreparable-injury standard merely requires that the movant show some harm will accrue absent a stay, or that some public interest supports the stay. See, e.g., Books v. City of Elkhart, 239 F.3d 826, 829 (7th Cir. 2001). 15
Here, irreparable injury is presumed because the fundamental constitutional right to vote is at stake. Obama for America v. Husted, 697 F.3d 423, 436 (6th Cir. 2012) ( When constitutional rights are threatened or impaired, irreparable injury is presumed. A restriction on the fundamental right to vote therefore constitutes irreparable injury. ). Moreover, [t]he public interest favors permitting as many qualified voters to vote as possible. Id.; cf. Libertarian Party of Ohio v. Husted, 751 F.3d 403, 412 (6th Cir. 2014) ( [I]t is well-settled that loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. ) (quotation omitted). Absent a stay of this Court s mandate, thousands of registered and eligible Ohio voters will have their votes rejected in the upcoming election based upon technical and immaterial errors and omissions on forms accompanying their provisional or absentee ballots. Because irreparable harm is presumed even for minimal periods when the right to vote is at stake, a stay of the mandate should be granted under these circumstances. A stay of this Court s mandate, moreover, will not harm the State, as it will impose on the State little to no cost or administrative burden. Rather, the State will simply need to instruct county elections boards to count the ballots of voters who may have made minor errors or omissions in one of the five fields, but whose identity and eligibility to vote can nevertheless be confirmed based upon the information provided. Such an instruction to count eligible voters ballots will add 16
little, if any, cost or burden, as election officials are already required to review and determine the validity of these ballot forms after the seven-day cure period has expired. And as this Court s injunction already requires election officials to disregard some of the technical-perfection requirements in the challenged laws, they will need to issue specific instructions anyway regardless of the injunction s scope. Any minimal cost or burden associated with such instructions does not outweigh voters fundamental right to have their ballots counted. Finally, there is no risk that ineligible voters will have their ballot counted as a result of a stay because the District Court s injunction applies only to voters who are found to be both registered and eligible to vote. CONCLUSION Plaintiffs-Appellees thus respectfully request that this Court grant a stay of its mandate pending the filing and disposition of a petition for a writ of certiorari to the U.S. Supreme Court. 17
/s/ Subodh Chandra Subodh Chandra, Trial Attorney (0069233) Donald P. Screen (044070) Ashlie Case Sletvold (0079477) Sandhya Gupta (0086052) THE CHANDRA LAW FIRM LLC 1265 W. 6 th St., Suite 400 Cleveland, OH 44113-1326 216.578.1700 Phone 216.578.1800 Fax Subodh.Chandra@ChandraLaw.com Donald.Screen@ChandraLaw.com Ashlie.Sletvold@ChandraLaw.com Sandhya.Gupta@ChandraLaw.com /s/ Caroline H. Gentry [per consent] Caroline H. Gentry (0066138) Ana P. Crawford (0090581) PORTER, WRIGHT, MORRIS & ARTHUR LLP One South Main Street, Suite 1600 Dayton, OH 45402 937.449.6748 Phone 937.449.6820 Fax cgentry@porterwright.com acrawford@porterwright.com Attorneys for Plaintiffs NEOCH and Columbus Coalition for the Homeless /s/ Donald McTigue [per consent] Donald J. McTigue, Trial Attorney (0022849) J. Corey Colombo (0072398) Derek S. Clinger (0092075) McTigue & Colombo, LLC 545 East Town Street Columbus, OH 43215 614.263.7000 Phone 614.263.7078 Fax dmctigue@electionlawgroup.com ccolombo@electionlawgroup.com dclinger@electionlawgroup.com Attorneys for Intervenor-Plaintiff Ohio Democratic Party 18
CERTIFICATE OF SERVICE I certify that on October 11, 2016, I filed the foregoing document electronically with the Clerk of the United States Court of Appeals for the Sixth Circuit. The Court s ECF system will automatically generate and send by e-mail a Notice of Docket Activity to all registered attorneys currently participating in this case, constituting service on those attorneys. /s/ Subodh Chandra Subodh Chandra One of the Attorneys for Plaintiffs- Appellees NEOCH and CCH 19