Bell v. Marinko

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Bell, et al. v. Marinko, et al. No. 02-4370 ELECTRONIC CITATION: 2004 FED App. 0122P (6th Cir.) File Name: 04a0122p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: Jack Gregg Haught, BENESCH, FOR THE SIXTH CIRCUIT FRIEDLANDER, COPLAN & ARONOFF, Columbus, Ohio, _________________ for Appellants. Terry Griffith, OFFICE OF THE PROSECUTING ATTORNEY FOR THE COUNTY OF JOSEPH A. BELL, et al., X ERIE, CIVIL DIVISION, Sandusky, Ohio, Arthur James Plaintiffs-Appellants, - Marziale, Jr., OFFICE OF THE ATTORNEY GENERAL OF - OHIO, Columbus, Ohio, for Appellees. ON BRIEF: Jack - No. 02-4370 Gregg Haught, Mark D. Tucker, BENESCH, v. - FRIEDLANDER, COPLAN & ARONOFF, Columbus, Ohio, > for Appellants. Terry Griffith, Gary A. Lickfelt, OFFICE OF , THE PROSECUTING ATTORNEY, Sandusky, Ohio, Arthur CHRISTOPHER M. MARINKO , - et al., James Marziale, Jr., Elizabeth L. Schuster, OFFICE OF THE - ATTORNEY GENERAL OF OHIO, Columbus, Ohio, Joan Defendants-Appellees. - C. Szuberla, Teresa L. Grigsby, SPENGLER NATHANSON, - Toledo, Ohio, for Appellees. N Appeal from the United States District Court _________________ for the Northern District of Ohio at Toledo. No. 02-07204—James G. Carr, District Judge. OPINION _________________ Argued: March 12, 2004 BOYCE F. MARTIN, JR., Circuit Judge. Joseph Bell and Decided and Filed: April 28, 2004 six other registered voters of the Kelley’s Island voting precinct in Erie County, Ohio, whose qualifications to be Before: MARTIN, CLAY, and CUDAHY, Circuit Judges.* registered in that precinct were challenged, appeal the district court’s grant of summary judgment. We are asked to decide whether procedures of the Ohio Board of Elections contravene the National Voter Registration Act, 42 U.S.C. § 1973gg-6 (1993), or violate the equal protection clause of the Fourteenth Amendment to the United States Constitution. Because the Board’s procedures are lawful under both provisions, we affirm. * The Honorable Richard D. Cudahy, Senior Circuit Judge of the United States Court of Appeals for the Seventh Circuit, sitting by designation.

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I Subsequently, the Board held hearings on the challenges to the appellants’ respective registrations. The hearings were In February of 2002, certain residents of Kelley’s Island, devoted to investigating each appellant’s residence, which Erie County, Ohio, filed challenges to the registrations of section 3501.11 of the Ohio Revised Code directs the Board nearly one hundred voters pursuant to section 3509.19 of the to examine. For that purpose, the hearings elicited such Ohio Revised Code, which allows registered voters to information as each appellant’s driver’s license address, challenge the right of any person to vote. Among the employment history, time spent on Kelley’s Island, and, challenged registrants were appellants Joseph Bell, Frederic except for Bell, the residence and voting precinct of each Walcott, Keith Haig, Timothy Ahner, Kim Fresch, and Paul appellant’s spouse. Based on the information provided at the and Victoria Finnegan. Challenges to their registrations hearings, the Board denied the challenge to Bell’s alleged that appellants were seasonal, rather than permanent, registration. The Board was unable to come to a majority residents of Kelley’s Island, and were therefore not qualified decision with regard to the Finnegans and so referred the to vote in the Kelley’s Island precinct. challenge to the Secretary of State, who sustained the challenge to the Finnegans’ registrations. With regard to the Joseph Bell and the six other appellants instituted an action remaining appellants, the Board concluded that there was in district court seeking to enjoin the Board from considering sufficient evidence to find that appellants’ residences were the challenges. The complaint alleged that sections 3509.19- not on Kelley’s Island, and the Board sustained the challenges 3509.21 of the Ohio Revised Code, which authorize the to their registrations.2 Also, the record shows that section challenge hearings, are unlawful under the National Voter Registration Act, and that section 3503.02(D) of the Code-- which states that “[t]he place where the family of a married 2 man or woman resides shall be considered to be his or her In addition to other factors, the Board determined residence place of residence”--violates the equal protection clause.1 In qualifications based on the following evidence: W alcott moved to the Island in 1995 after he re tired, but retained his a partial judgment, the district court denied the request to mainland Huron Township home. He has worked part-time for Island enjoin the Board as to the six appellants, but issued an order employers, and he estimates that he spends two hundred days a year on restraining the Board from considering, as evidence of Bell’s the Island. His car is registered in the Huron To wnship , and his driver’s residence, statements that Bell’s wife resides and votes in a license lists his Huron Township add ress, where he also receives all of his precinct other than Kelley’s Island. The district court found mail. He and his wife spend time in the winter in Florida. Haig lives on the Island about one hundred fifty days each year, that such consideration may violate the equal protection including the summer. Otherwise, he lives with his family and teache s in clause. Bowling Green, W ood County, Ohio. Haig and his wife file joint tax returns from B owling Green, and his driver’s license bears his Bowling Green addre ss. 1 Ahner spends about eighty percent of his time in the summer and Spe cifically, appellants argued, as they do here, that sections seventy percent in the winter at his mainland Sa ndusky, Ohio, addre ss. 3509.19-3509.21 are unlawful to the extent that they allow the Board to: He receives his mail there and his driver’s license bears his Sandusky 1) hold hearings regarding the residence of registered voters, which address. the B oard is authorized to do under section 3501.1 1, The Finnegans live on Kelley’s Island one hundred ninety-four d ays 2) compel the attendance and sworn testimony of registered vo ters, each year; otherwise, they live in Columbus, Franklin County, Ohio. 3) cancel a voter’s registration if the voter refuses to answer certain Their driver’s licenses list the Columbus address and they both work for questions regarding the voter’s residence, and the Franklin County school system. 4) deny voters the right to vote in an election for federal office. Fresch owns a house in Sandusky, and he works throughout Ohio, but

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3503.02(D) did not play a determinative role in the Board’s Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Nat’l Satellite collective decisionmaking. 3 Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). All seven appellants filed claims in district court for B. National Voter Registration Act injunctive relief, arguing, among other things, that the Board’s procedures violate the National Voter Registration 1. Ohio Voter Removal Procedures §§3505.19-3505.21 Act and the equal protection clause. The district court dismissed Bell’s claims as moot because the Board had Appellants argue that the National Voter Registration Act denied the challenge to his eligibility. With regard to the six sets forth the exclusive reasons for which a state may remove remaining appellants, the district court granted summary a voter from a voting precinct’s list of registered voters. judgment in favor of the Board, concluding that its procedures Appellants claim that the Board, when it considered do not violate either provision. In this timely appeal, challenges pursuant to sections 3505.19-3505.21 of the Ohio appellants assert the same claims. Revised Code, failed to justify the removal of appellants according to those reasons, and therefore violated the Act. II This argument requires analysis of the effect of the Act on state voter registration processes, as well as its intended A. Standard of Review purpose with regard to voter removal. We review a district court’s award of summary judgment de We considered the application of the National Voter novo. Shah v. Deaconess Hosp., 355 F.3d 496, 498 (6th Cir. Registration Act in Association of Community Organizations 2004). Summary judgment is appropriate “if the pleadings, for Reform Now (ACORN) v. Miller, 129 F.3d 833 (6th Cir. depositions, answers to interrogatories, and admissions on 1997). There, we stated that the right to vote has long been file, together with the affidavits, if any, show that there is no recognized as central to the protection and exercise of the genuine issue as to any material fact and that the moving other rights guaranteed in our society. Id. at 835. party is entitled to a judgment as a matter of law.” Id. at 498. Nevertheless, many practical barriers remain that may inhibit In viewing the evidence, we draw all reasonable inferences in the free exercise of this right. Among such barriers are favor of the appellants, as non-moving parties. Anderson v. restrictive or prohibitively inconvenient voter registration requirements that may discourage or prevent qualified voters from registering and participating in elections. In Miller, we found that the National Voter Registration Act is Congress’s not on Kelley’s Island. His driver’s license lists his Sandusky ad dress, attempt to reinforce the right of qualified citizens to vote by and he receives his mail there. reducing the restrictive nature of voter registration 3 requirements and by setting limits on the removal of In making these decisions, more than one Bo ard m emb er exp ressly registrants from the voter registration rolls. Id. denied reliance on or consideration of the residence and voting precinct of each app ellant’s spouse. W hile one B oard mem ber d id state his intent to consider section 3 503 .02(D) in determining W alcott’s eligibility, Section 1973gg-6(a)(3) of the Act provides that the name another mem ber expressly declined to rely on the statute. A lso, in of a registrant “may not be removed from the official list of determining Haig’s eligibility, Board member Christopher M arinko eligible voters except” when the registrant requests such expressly disclaimed any consideration of section 3 503 .02(D). In general, removal, when the registrant has been convicted of a crime, the B oard did no t rely conclusively o n section 3503.0 2(D ).

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or when he or she is mentally incapacitated. Also, section that accurate and current voter registration rolls are 1973gg-6(a)(4) allows for removal pursuant to a state maintained.”). program or activity “that makes a reasonable effort” to remove ineligible voters by reason of death or change of Were we to find that the Board’s removal of these voters residence. Appellants argue that because none of these has does violate the Act, we would effectively grant, and then occurred, their names may not be removed. We disagree. protect, the franchise of persons not eligible to vote. Because the Act does not bar the Board’s continuing consideration of In creating a list of justifications for removal, Congress did a voter’s residence, and instead encourages the Board to not intend to bar the removal of names from the official list of maintain accurate and reliable voting rolls, we find that the persons who were ineligible and improperly registered to vote Board’s procedures in this case do not contravene the in the first place. The National Voter Registration Act National Voter Registration Act. protects only “eligible” voters from unauthorized removal. See 42 U.S.C. §1973gg-6(a)(1) (seeking to “ensure that any 2. Ohio Revised Code § 3503.02(D) eligible applicant is registered to vote in an election”); ID . at §1973gg-6(a)(3) (providing that “the name of a registrant may Section 3503.02(D) of the Ohio Revised Code states that not be removed from the official list of eligible voters except” the place where the family of a married man or woman under specific circumstances) (emphases added). Eligible resides shall be considered to be his or her place of residence. voters, at a minimum, are those who qualify as bona fide Appellants argue that this section violates the National Voter residents of the precinct in which they are registered or wish Registration Act’s requirement under section 1973gg-6(b)(1) to register to vote. See, e. g., Dunn v. Blumstein, 405 U.S. that state programs to protect the integrity of the electoral 330, 343-44 (1972); Evans v. Cornman, 398 U.S. 419, 422 process, such as hearings on challenges to a voter’s (1970); Kramer v. Union Free Sch. Dist., 395 U.S. 621, 625 registration, “shall” be “uniform” and “nondiscriminatory.” (1969); Carrington v. Rash, 380 U.S. 89, 91 (1965). Specifically, appellants argue that consideration of the Residence, as defined in section 3503.02(a) of the Ohio residence and voting precinct of a voter’s spouse, when such Revised Code, is that place “in which the person's habitation consideration would not be made with respect to a nonmarried is fixed and to which, whenever the person is absent, the or separated voter, is nonuniform and discriminatory, and person has the intention of returning.” therefore in violation of the Act. Again, we disagree.

In this case, the Board investigated and examined the Ohio is free to take reasonable steps, as have other states, residence of each appellant through challenge hearings. to see that all applicants for registration to vote actually fulfill Based on those examinations, the Board concluded that the requirement of bona fide residence. See, e. g., Dunn, 405 appellants were not residents of Kelley’s Island and were U.S. at 343-44; Evans, 398 U.S. at 422; Kramer, 395 U.S. at therefore ineligible to vote in the Kelley’s Island precinct. 625; Carrington, 380 U.S. at 91. Bona fide residence may be They were improperly registered in the first place, and as a determined not only by an intention to reside at a fixed place, result, the voting rolls were inaccurate. As instructed by the but also factors that express such an intent. See Holt Civic National Voter Registration Act, the Board necessarily Club v. City of Tuscaloosa, 439 U.S. 60, 68 (1978). We find removed their names from the rolls. See 42 U.S.C. §§1973gg- that these factors include the residence and voting precinct of 6(a)(3)-(4) (“The purposes of this subchapter are . . . (3) to a voter’s spouse. To that end, consideration of the residence protect the integrity of the electoral process, and (4) to ensure of a voter’s spouse in determining the voter’s residence is

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relevant and appropriate. Therefore, section 3503.02(D) does violation of the Fourteenth Amendment.” Id. Other courts not contravene the National Voter Registration Act. have subsequently noted that “[t]he determining factor [in Carrington] was the conclusiveness of the presumption.” See C. Equal Protection Clause Whatley v. Clark, 482 F.2d 1230, 1234 (5th Cir. 1973); see also Kelm, 473 F.2d at 1270. Similarly, appellants argue that section 3503.02(D) requires the Board to treat married voters differently than nonmarried This Court has also considered the irrebuttable presumption voters, and therefore violates the equal protection clause. As as applied to the determination of residence. In Kelm, we stated, we find that such consideration, among other factors, struck down an Ohio statute that required graduate students to is relevant and appropriate in determining the residence of a have taken a job in Ohio prior to enrolling in graduate school challenged voter. For purposes of equal protection, we now in order to gain Ohio residency and pay the in-state tuition apply the rule that, absent an irrebuttable presumption that a fee. 473 F.2d at 1270. We found that the condition acted as voter’s residence is that place where the voter’s spouse an impassable barrier to many students who in good faith resides, such consideration does not violate the equal intend to and, for all other purposes, have succeeded in protection clause. See Carrington, 380 U.S. at 91; Kelm v. establishing residency in Ohio, and therefore violated the Carlson, 473 F.2d 1267, 1270 (6th Cir. 1973). equal protection clause. Id. The plain language of section 3503.02(D)—the place where Following this guidance, we must determine whether the the family of a married voter resides “shall” be considered the challenged provision raises an irrebuttable presumption. voter’s residence—arguably creates some presumption of Although the record shows that the Board did accept into residence. We therefore look for guidance to decisions from evidence the residence and voting precinct of each appellant’s the Supreme Court and our Court with regard to presumptions spouse, it also shows, as indicated above, that no appellant and equal protection. was irrebuttably presumed to reside at the residence of his or her spouse. Indeed, other evidence was presented and The rule that an irrebuttable presumption may not be expressly relied upon by the majority of Board members. utilized to classify a person as a non-resident was applied in Because the Board did not raise an irrebutable presumption in Carrington, in which the Supreme Court invalidated a section applying section 3502.02(D), we find that appellants have of the Texas Constitution that prohibited a member of the suffered no equal protection violation. armed forces who first established his home in Texas during the course of his military service from satisfying the residence III. qualifications for a voter so long as he remained a member of the armed forces. Id. at 91-92. The Court stated: “‘The For the foregoing reasons, we AFFIRM the judgment of the presumption here created is definitely conclusive--incapable district court. of being overcome by proof of the most positive character.’” Id. at 96 (quoting Heiner v. Donnan, 285 U.S. 312, 324 (1932)). The Court held that by prohibiting all servicemen not residents of Texas before induction to the armed services “ever to controvert the presumption of nonresidence, the Texas Constitution imposes an invidious discrimination in