Opinion
Case No. 2:00-CV-1300
August 2, 2002
OPINION AND ORDER
This matter is before the Court on the Plaintiffs' Motion for Preliminary Injunction and Request for Declaratory Judgment. (Doc. #49). On August 1, 2002, the Court heard oral argument and conducted an evidentiary hearing on the issues presented. The same day, the Court granted, in part, Plaintiffs' requests for relief. The following opinion details the basis for the Court's decision.
I.
Plaintiffs, the National Coalition for Students with Disabilities and Legal Defense Fund and four individuals ["Plaintiffs"], bring this action seeking preliminary injunctive and declaratory relief to remedy the Defendant Secretary of State's alleged failure to comply with the National Voter Registration Act ["NVRA"], 42 U.S.C. § 1973gg, et seq. The Defendants in this action are Ohio Secretary of State J. Kenneth Blackwell; Dr. Joseph A. Steger, President of the University of Cincinnati; and Debra Merchant, Director of Disability Services of the University of Cincinnati. The Court has jurisdiction pursuant to 28 U.S.C. § 1331 and § 2201.
The Plaintiffs are a non-profit public interest corporation, consisting of students, parents and others concerned about the educational opportunities and legal rights of students with disabilities. The corporate entity is organized under the laws of the State of Virginia. In addition to the corporate Plaintiff, there are four individuals, who are disabled and who attend public colleges and universities in the State of Ohio. The individual Plaintiffs contend that they have not been afforded the ability to register to vote in accordance with the NVRA.
Plaintiffs' requests for declaratory and injunctive relief do not pertain to the University of Cincinnati Defendants.
Plaintiffs allege that the Defendant Secretary of State has violated the NVRA in failing to designate the disability services offices of Ohio's public colleges and universities as voter registration sites. Plaintiffs further allege that the Secretary has failed to fully ensure the mandatory NVRA compliance by the public colleges and universities at issue. In response, the Secretary contends that, as of June 27, 2002, he has made the required designations under the NVRA and is now in the process of ensuring that the colleges and universities will be able to offer disabled students the voting services required under the law by the first day of classes for the upcoming 2002 fall semester/quarter. In light of these actions, Defendant contends that Plaintiffs' requests for relief are rendered moot. Plaintiffs dispute this contention.
II.
Before considering the merits of the parties' arguments, the Court will set forth the principles which guide its consideration of the requested relief.
With respect to Plaintiffs' Motion for Preliminary Injunction under Fed.R.Civ.P. 65, the United States Court of Appeals for the Sixth Circuit has identified four factors to assist the Court in determining whether such relief is appropriate. The analysis, which involves a weighing of the interests on both sides, requires consideration of the following: (1) whether there is a strong or substantial likelihood of the movant's success on the merits; (2) whether an injunction will save the movant from irreparable injury; (3) whether an injunction will harm others, including the non-movant; and (4) whether the public interest would be served by issuance of a preliminary injunction. See e.g., International Longshoremen's Ass'n v. Norfolk Southern Corp., 927 F.2d 900, 903 (6th Cir.), cert. denied, 112 S.Ct. 63 (1991); Sandison v. Michigan High School Athletic Assoc., 64 F.3d 1026, 1030 (6th Cir. 1995).
These factors are meant to be balanced as they guide the Court in exercising its discretion; they are not due rigid application and need not be assigned equal weight. In re Eagle-Pitcher Indus., Inc., 963 F.2d 855, 859 (6th Cir. 1992). While the Court need not consider any single factor as either indispensable or dispositive, neither is it required to conclude that all four support its decision. The Court's discretion is directed at the weight to be given each factor, and the effect to be accorded their mix. Id.
With respect to Plaintiffs' Request for Declaratory Judgment under 28 U.S.C. § 2201, it is well-settled that the granting or denying of relief is a matter within the sound discretion of the Court. Brillhart v. Excess insurance Co., 316 U.S. 491 (1942); Aetna Cas Surety Co. v. Sunshine Corp., 74 F.3d 685 (6th Cir. 1996). The question in each case is whether the facts averred under the existing circumstances present a real controversy between parties having adverse legal interests of such immediacy so as to warrant a declaratory judgment. Maryland Casualty Co. v. Pacific Coal Oil Co., 312 U.S. 270 (1941). "An academic or theoretical declaration by [a] Court concerning future controversies that may never arise is not contemplated by the Declaratory Judgment Act." Aetna Insurance Co. v. Transamerica Ins. Co., 262 F. Supp. 731, 732 (E.D. Tenn. 1967) (citation omitted).
III.
The NVRA, enacted in 1993 and effective, with regard to Ohio since 1996, requires states to take various steps to facilitate voter registration. In particular, states must: (1) include a voter registration application as part of the application or renewal form for a motor vehicle driver's license; (2) allow mail application for voter registration; and (3) designate various offices as "voter registration agencies" where individuals make applications to vote. 42 U.S.C. § 1973 gg-2. The case at bar focuses on the latter requirement. In this regard, the NVRA provides that each state shall designate "as voter registration agencies . . . all offices in the State that provide State-funded programs primarily engaged in providing services to persons with disabilities." 42 U.S.C. § 1973 gg-5(a)(2)(B).
The effective date of the Act varies as to the methods of voter registration. The parties agree that, as to Ohio, the law became effective in 1996.
The purposes of the NVRA are:
(1) to establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office;
(2) to make it possible for Federal, State, and local governments to implement this subchapter in a manner that enhances the participation of eligible citizens as voters in elections for federal office;
(3) to protect the integrity of the electoral process; and
(4) to ensure that accurate and current voter registration rolls are maintained.42 U.S.C. § 1973gg(b).
In order to effectuate these purposes, the NVRA outlines the types of services that the designated voter registration sites are to provide. For example, the Act requires, inter alia, that the designated office distribute voter registration application forms; assist applicants in completing the forms, unless such assistance is refused; and transmit completed forms to the State election official. 42 U.S.C. § 1973gg-5 (A)(4)(a). In addition, when an individual applies for services from a state-funded office, the office is to inquire as to whether the person would prefer to register to vote where he or she permanently resides or where such person attends school. 42 U.S.C. § 1973gg-5 (a)(6)(B). The NVRA requires that each state designate a state officer who shall be responsible for compliance with this statute. 42 U.S.C. § 1973gg-8. In turn, Ohio law imposes such designation on the Secretary of State, O.R.C. § 3501.05(R), which expressly references compliance with the NVRA as part of the duties imposed on the Secretary of State.
In this case, the Plaintiffs contend that the various disability services offices located at public colleges and universities in the State of Ohio are "offices that provide State-funded programs primarily engaged in providing services to persons with disabilities" for purposes of designation under § 1973gg-5(a)(2)(B). Plaintiffs rely on the Fourth Circuit decision in National Coalition for Students with Disabilities v. Allen, 152 F.3d 283 (4th Cir. 1998) in support of this position.
In Allen, the Commonwealth of Virginia contended that it need not designate the various disabilities services offices of its public colleges and universities under the NVRA because the entities were not "offices" for purposes of the statute. According to Virginia, only agencies created by the legislature and funded by specific appropriation for the primary purpose of providing assistance to the disabled are "offices." Therefore, because colleges are primarily engaged in education, Virginia argued that they fell outside the statute.
The Fourth Circuit rejected this argument, concluding that the term "office" includes a "subdivision of a government department or institution." Id. at 288. Accordingly, the statute "requires states to designate as voter registration agencies those state-funded offices that provide services to disabled students at public colleges." Id. in considering the text of the statute, the court reasoned:
Congress wanted to make voter registration services available in community-based offices that citizens visit frequently for services or assistance. This purpose applies especially to the disabled, many of whom do not drive or have difficulty in traveling.
When we consider what the word "office" means in the broader context of the NVRA as a whole, it does not stand for a government department but it is a subdivision of a department where citizens regularly go for service and assistance. Under this meaning, a college office serving the disabled students would be an "office" under the specific paragraph, sec. 1973gg-5(a)(2)(B), we are considering.Id. at 291.
This Court is persuaded by the foregoing analysis. Thus, the Court concludes that the
various disability services offices at Ohio's public colleges and universities are "offices" for purposes of § 1973 gg-5(a)(2)(B). In addition, it appears undisputed that these offices provide "programs" and the offices receive state funding. Finally, as the Plaintiffs observe, these offices indeed offer programs that are primarily directed to serve persons with disabilities. (Exhibit 1 attached to Plaintiffs' Motion).
In sum, the Court finds that the disability services offices at issue in this case are subject to the NVRA. With this primary issue resolved, the Court turns to whether the Defendant Secretary of State has an obligation under the statute to designate the disability services offices as voter registration sites.
The Court answers this question in the affirmative. In light of the applicability of the statute, it appears beyond dispute that the Secretary has a legal duty designate the offices under § 1973 gg-5(a) and § 1973 gg-8. The Court notes that, although he takes the view that the NVRA does not apply, as disscussed infra, on June 27, 2002, the Secretary sent letters to the several state universities with disabilities services offices, stating that the Secretary is "hereby designating, at all state-assisted universities, the offices that provide services to persons with disabilities to be `designated agencies' required to offer voter registration services [under] 42 U.S.C. § 1973gg-5; R.C. §§ 3501.01(X), 3501.05(R) and 3503.10." (Exhibit B attached to Defendant's Motion for Summary Judgment).
The Defendant has not, however, conceded that he is obligated under the statute to so designate the offices. As Plaintiffs point out, the Secretary had heretofore taken the position that he was without the authority to designate under the NVRA because of the Higher Education Amendments of 1998, codified at 20 U.S.C. § 1094 (a)(23). The statute provides, in relevant part:
In order to be an eligible institution for purposes of any program authorized under this subchapter . . . an institution must be an institution of higher education or an eligible institution . . . and shall . . . enter into a program participation agreement with the Secretary. The agreement shall condition the initial and continuing eligibility of an institution to participate in a program upon compliance with the following requirements:
* * *
23(A) The institution, if located in a State to which section 4(b) of the National Voter Registration Act . . . does not apply, will make a good faith effort to distribute a mail voter registration form, requested and received from the State, to each student enrolled in a degree or certificate program and physically in attendance at the institution, and to make such forms widely available to students at the institution.
(B) The institution shall request the forms from the State 120 days prior to the deadline for registering to vote within the State. If an institution has not received a sufficient quantity of forms to fulfill this section from the State within 60 days prior to the deadline for registering to vote in the State, the institution shall not be held liable for not meeting the requirements of this section during that election year.
(C) This paragraph shall apply to elections as defined in section 301(1) of the Federal Election Campaign Act of 1971 ( 2 U.S.C. § 431 (1)) and includes the election for Governor or other chief executive within such State).
A non-codified section of the Act states that "No officer of the executive branch is authorized to instruct the institution in the manner in which the amendment made by this subsection [amending this section] is carried out." Pub.L. 105-244, Title IV, § 489(b)(2).
The Secretary argues that in light of these amendments, together with the non-codified provision, he believed in good faith that he was without the authority to designate any subdivision of an academic institution that may otherwise arguably be subject to the NVRA. The Secretary relies in part on a publication entitled "Election Administration Reports Newsletter." The newsletter cites the foregoing non-codified provision and states, in headline form: "Congress passes law requiring colleges to distribute voter registration forms to students." (Exhibit G attached to Defendant's Motion for Summary Judgment). The newsletter provides commentary on the requirement that covered educational institutions are to request voter registration forms from the State 120 days prior to the deadline for registration. ( Id.). The newsletter makes no mention of the NVRA.
The Plaintiffs argue that nothing in the Higher Education Amendments of 1998 operates to supercede the NVRA's requirement that the Secretary designate disability services offices of Ohio's public colleges and universities as voter registration sites. The Court agrees. Indeed, the plain statutory language fails to suggest such a conclusion and, as Plaintiffs point out, repeals by implication are not the general rule. See O'Gilvie v. United States, 519 U.S. 79 (1996). Further, the language prohibiting an officer of the executive branch from instructing institutions as to the NVRA is directed to federal executive officers. Finally, even if the provision covers the Ohio Secretary of State, his duties include the designation of voter registration sites, which has nothing to do with instruction to the institutions. Consequently, the Court concludes that the Secretary was not relieved of his obligation to designate under the NVRA by virtue of the 1998 Higher Education Act.
The Court next considers the effect of the Secretary's recent decision to make the required designations on the Plaintiffs' request for preliminary injunctive and declaratory relief As stated supra, on June 27, 2002, the Secretary informed the various disability services offices at issue that they would be designated as voter registration sites in accordance with the NVRA Further, Patricia Wolfe, a State of Ohio Elections Administrator, who is responsible for ensuring the State's compliance with the NVRA, testified as to the Secretary's actions in this regard. According to Wolfe, the State is working to ensure that the universities designated as voter registration sites on June 27, 2002 will be prepared, by the first day of class for the upcoming year, to offer disabled students the necessary materials to ensure that they are registered to vote in the fall 2002 election. The deadline for registration for Ohio's general election is October 4, 2002.
At the hearing, Plaintiffs observed that, while the Secretary may indeed be actively engaged in ensuring compliance by the first day of classes, there are, undoubtedly, a number of disabled students who will visit their respective disability services offices prior to the first day of classes for the fall semester. It is beyond dispute that freshman and other new students generally arrive on campus early to take part in orientation or preregistgration for the upcoming fall classes. If, however, the students visit the disability services offices prior to the first day of classes to avail themselves of the programs offered to assist them, the required steps for compliance with the NVRA will not yet be in place. Thus, although the Secretary has undertaken action to comply with a law first effective in 1996, he has not necessarily fulfilled the obligations under the law with respect to ensuring voter registration for the disabled students.
The Secretary nonetheless maintains that, because he has performed the act of designation and is currently engaged in ensuring compliance with the law, that Plaintiffs have no basis for relief from this Court. This argument necessitates consideration of the doctrine of justiciability.
Article III of the United States Constitution requires that this Court hear only live "cases" and "controversies." The United States Supreme Court has observed that it is often-times difficult to distinguish between what is an actual controversy and what is an attempt to obtain an advisory opinion on the basis of hypothetical controversies. With respect to a request for declaratory relief, in Golden v. Zwickler, 394 U.S. 103 (1969), Justice Brennan adopted the following test:
The difference between an abstract question and a "controversy" contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between the parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.Id. at 108, quoting Maryland Casualty Co. v. Pacific Coal Oil Co., 312 U.S. 270, 273 (1941).
This test requires that a party seeking declaratory relief have "standing" and demonstrate that the controversy is "ripe" for adjudication. Even when these requirements are satisfied at the case's inception, a case may later be rendered moot by changed circumstances during the course of the litigation. When this occurs, justiciability is lost and the action is moot. Weinstein v. Bradford, 423 U.S. 147 (1975).
Similarly, a request for preliminary injunctive relief may become moot as a case proceeds. The burden of demonstrating mootness rests with the Defendant. A case may become moot for one of two reasons: (1) the issues presented are no longer live, or (2) the party seeking relief lacks a cognizable interest in the outcome. Powell v. McCormack, 395 U.S. 486, 490 (1969).
The fact that a Defendant has voluntarily ceased the allegedly illegal conduct at issue does not necessarily render an action moot. United States v. W.T. Grant Co., 345 U.S. 629 (1953). In order for the mootness doctrine to apply the Defendant must demonstrate that there is no "reasonable expectation that the wrong will be repeated." Id. at 633 (citation omitted). This burden rests with the Defendant and it is a "heavy" one. Id. It must be "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." United States v. Concentrated Phosphate Export Assn., Inc., 393 U.S. 199 (1968). At the same time, however, it is the moving party's burden to demonstrate that injunctive relief is needed.
In this case, the Court concludes that the controversy at issue is not moot. First, the Court finds that, while the Defendant has taken steps to ensure compliance with the NVRA, he has not necessarily "voluntarily ceased" the allegedly illegal conduct. Rather, the Secretary has persisted, in the context of this litigation, in his position that he need not comply with the NVRA because "the charge of the statute requires any entity selected to be primarily engaged in the business of serving persons with disabilities. A university's primary purpose is to educate." (Answer to Interrogatory 2, attached as Exhibit E to Defendant's Motion (emphasis in original). In light of this position, and despite the Secretary's letters of designation which are silent on the acknowledgment of his obligation under the law, there is a live controversy in this case. In the Court's view, the June 27, 2002 letters do not negate the Secretary's sworn Answers to Interrogatories given under Fed.R.Civ.P. 33.
The Court notes that in its August 1, 2002 Order it erroneously referred to the foregoing as Answer to Interrogatory 1.
The Court notes, however, that it does not doubt the sincerity of the Secretary's acts of designation or his current endeavors to ensure that disabled college students have the ability to register to vote in time for the October 4, 2002 deadline. The Court does not presume that the Secretary would revoke his current undertakings at some future time. Nonetheless, because of the disagreement as to the applicability of the NVRA, the Court finds a live controversy at issue in this case so as warrant consideration of Plaintiffs' requests for declaratory and injunctive relief.
In light of the disagreement as to the applicability of the NVRA, and the Court's conclusion that the NVRA is indeed applicable to the disability services offices of the public colleges and universities in the State of Ohio, the Court finds it appropriate to enter Declaratory Judgment in Plaintiffs' favor. The Court hereby concludes and DECLARES that the Defendant Secretary of State was, and is, required by the NVRA to designate the disabilities services offices at Ohio's public universities and colleges as voter registration sites.
The Court further concludes that Plaintiffs are entitled to Preliminary Injunctive Relief, in part. To the extent the Secretary is currently undertaking his obligations under the NVRA, by way of designating the various disability services offices as voter registration sites, the Plaintiffs' request for injunctive relief is denied. In light of the fact, however, that the upcoming semester/quarter for college students is fast approaching, the Court finds issuance of injunctive relief appropriate to ensure that the State will fully comply with the NVRA and effectuate the purposes of the statue. For the reasons detailed above, the Court finds that the Plaintiffs are likely to succeed on their claim and that the issuance of the following relief will prevent the risk of irreparable injury to Plaintiffs, especially those disabled students who avail themselves of the programs offered by the disability services offices prior to the first day of classes. Further, the Court finds that injunctive relief will not harm third parties and that the public interest is served by the issuance of such relief. Consequently, the Secretary of State is hereby ORDERED to:
(A) Cause notification to disabled students who have used the assistance of a designated disability services office prior to the opening day of classes in August or September of 2002, for services to be provided for classes beginning in, or after, August of 2002, sufficient to satisfy the requirement of the NVRA as to voter registration; and
(B) Cause similar notification to any disabled student who has preregistered for the fall quarter or semester who will attend orientation sessions prior to the opening day of class,
in both instances to insure that students who may not physically appear at disability services offices or who will appear prior to the first day of classes, are provided with the voter information and services required by the NVRA.
IV.
The Plaintiffs' Motion for Preliminary Injunction and Declaratory Relief (Doc. #49) is GRANTED in part, to the extent set forth in this Order and the August 1, 2002 Order.