6th Cir.: Voting rights suit survives mootness, immunity claims

The Sixth Circuit rejected the state’s motion to dismiss an Ohio voting rights case brought by the League of Women Voters.

The court held that voter groups and individual voters pled sufficient facts to proceed on their claims that systematic failures in Ohio’s election system violated equal protection and substantive due process .The court also held that the applicability of the Ex Parte Young exception to state sovereign immunity is based solely on allegations in the complaint. Additionally, the court held that the passage of new state election laws did not moot claims based on systemic administrative failures such as untrained election workers and malfunctioning machines. However, the court granted the motion to dismiss with regard to procedural due process claims. League of Women Voters v. Brunner, --- F.3d ---, 2008 WL 4999087 (6th Cir. Nov. 26, 2008) (No. 06-3335).

 

          The League, a local affiliate, and several individuals alleged “pervasive, severe, chronic and persistent” failures in Ohio’s election system over several elections, including registration errors, failure to send absentee ballots, untrained workers, too few and malfunctioning machines, and inaccessible polling places. The district court refused to dismiss plaintiffs’ constitutional claims, but granted the state leave to file an interlocutory appeal.

 

          As a preliminary matter, the Sixth Circuit addressed the issue of mootness. The panel held that the passage of new state laws designed to improve election procedures, did not, by itself, moot plaintiffs’ claims. “Presumably,” said the court, “it was never the law or official policy of the State of Ohio to deny Ohioans access to the franchise.” Since the claims arose from the state’s alleged “failure to prevent the system-wide chaos that is alleged to have occurred in November 2004, and perhaps as far back as 1971,” the court said it was “hard to see” how new legislation could moot them. The court noted, however, that the district court had ordered discovery on the mootness issue, which would allow the state to make a factual showing that the challenged conduct could not reasonably be expected to recur.

 

          The court also rejected the state’s sovereign immunity defense, holding that the Ex Parte Young exception applied here. The court noted that whether this doctrine applies is based on “whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.” Verizon Md. Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002) (summary here). The focus, the court said, “remains on the allegations only.” The state argued that deposition testimony showed that the plaintiffs lacked a reasonable expectation that any violations will recur. The court said that reliance on such evidence to assert sovereign immunity “is contrary to Verizon, which limits the inquiry to the complaint.”  The court found that the plaintiffs had properly pled a request for prospective, injunctive relief, which fell within the Ex Parte Young exception.

 

          Of course, the plaintiffs will ultimately have to establish that they are entitled to such prospective relief, which will mean proving that future election administration failures are likely.

 

          On the merits of the motion to dismiss, the court held that plaintiffs’ allegations of election administration chaos stated claims under both equal protection and substantive due process. The court cited Ury v. Santee, 303 F.Supp.2d 119 (N.D.Ill. 1969), which held that overcrowded conditions at polling places may violate equal protection. The court also invoked Bush v. Gore, 531 U.S. 98 (2000), for the proposition that “at a minimum… equal protection requires ‘nonarbitrary treatment of voters.’” The Sixth Circuit appears to be the first and only federal circuit so far to apply Bush v. Gore in any context. See also Stewart v. Blackwell, 444 F.3d 843 (6th Cir. 2006), vacated as moot by 473 F.3d 692 (6th Cir. 2007) (en banc). The court also held that plaintiffs’ allegations, if proven, “could support a troubling picture of a system so devoid of standards and procedures as to violate substantive due process.”

 

          Finally, the court held that plaintiffs failed to state a claim under procedural due process, as the right to vote is not protected by this doctrine and the plaintiffs failed to identify any other constitutionally protected interest at stake. The court opined that the plaintiffs’ brief argument on this issue reflects the lack of authority for applying procedural due process to election procedures.