Mullins v. Cole
Filing
18
MEMORANDUM OPINION AND ORDER granting Plaintiff's request for a preliminary injunction, as stated at the hearing held on 10/25/2016 and the Court's 17 Order entered that day. Signed by Judge Robert C. Chambers on 11/21/2016. (cc: counsel of record; any unrepresented parties) (jsa)
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
ALLISON MULLINS,
on behalf of herself and
all others similarly situated,
Plaintiff,
v.
CIVIL ACTION NO. 3:16-9918
KAREN COLE,
in her official capacity as
Clerk of Cabell County,
Defendant.
MEMORANDUM OPINION AND ORDER
On Thursday, October 20, 2016, Plaintiff Allison Mullins filed a Verified Class
Action Complaint against Defendant Karen Cole, in her official capacity as Clerk of Cabell
County, West Virginia. With her Complaint, Plaintiff Mullins filed an Emergency Motion for a
Temporary Restraining Order (ECF No. 3), and a Motion for Class Certification. ECF No. 5. On
Friday, October 21, 2016, Defendant was personally served a copy of the Complaint. The Court
also entered an Order notifying Defendant Cole of the action and the pending motions, and directed
her to file a Response to the Emergency Motion by noon on Monday, October 24, 2016. The Court
set this matter for a preliminary injunction hearing on Tuesday, October 25, 2016. Defendant Cole
timely filed her Response, and Plaintiff Mullins filed a Reply prior to the hearing on Tuesday.
Upon consideration of the parties’ arguments, the Court granted the preliminary injunction.
I.
FACTS
In West Virginia, the Secretary of State has established a state-wide online voter
registration system pursuant to her statutory authority. See W. Va. Code § 3-2-5(a)(3) (2016)
(authorizing the Secretary of State as the chief election officer to establish an electronic voter
registration system). In order to register or update a registration using the online system, a West
Virginia resident must have a West Virginia driver’s license or state identification card and his or
her signature must be on file with the West Virginia Division of Motor Vehicles (DMV) or another
approved state database. W. Va. Code § 3-2-5 (setting forth types of information required and
requested on voter application forms). In order to complete an application, a resident logs on to
the system and answers a series of questions that confirms his or her eligibility to register. If
eligible, the resident then completes the application by entering his or her name, address, birthdate,
citizenship, driver’s license or state identification number, and the last four digits of their social
security
number.
See
West
Virginia
Secretary
of
State,
Register
to
Vote,
https://ovr.sos.wv.gov/Register/Landing (last visited Nov. 16, 2017). The applicant’s signature is
then transferred from the DMV or other approved database.
The filing deadline for registering to vote in West Virginia for the 2016 general
election was October 18. Of the fifty-five counties in West Virginia, all but Cabell County allow
residents to register using the online system. In Cabell County, however, when a resident attempts
to register through the online system, Defendant Cole sends the applicant a letter with a paper
registration application to complete. The letter provides:
-2-
Dear Voter Applicant,
We just received notice that you have applied to register to
vote, make changes to, or update your current voter registration
record in Cabell County, through the Secretary of State’s website.
Unfortunately, this website does not provide the information that is
required, by law, to be provided to this office in order to process a
voter application.
We are truly sorry for this inconvenience, however, we have
enclosed a voter registration form that you will need to complete and
mail back to us, in order for us to process your application. The form
includes pre-paid postage, so it will be of no cost for you to return.
If you have any questions, or need any assistance, please do
not hesitate to contact us at 304-526-8633.
Warmest regards,
/s/ Karen S. Cole
Karen S. Cole
Cabell County Clerk
Exemplar of Letter (dated March 21, 2016), ECF No. 1-2. Despite the representations made in the
letter, it is undisputed that the paper registration form requires the applicant to provide virtually
the same information as the online system. One difference is that the online system requires both
a driver’s license number1 and the last four digits of the applicant’s social security number, while
the paper registration form only requires the applicant to provide a driver’s license number or the
last four digits of the applicant’s social security number. Thus, the online system actually requires
more verification than the paper registration form. Another previous difference is that the paper
application form had an option to include a phone number and e-mail address, but the online
system originally did not have a place to input this information. Defendant Cole testified that a
If an applicant does not have a driver’s license, the applicant may use an identification
number issued by the DMV.
1
-3-
few months ago the online system began including this information. Additionally, irrespective of
whether phone numbers or e-mail addresses were included or not, an applicant is not required to
provide this information in order to register. Lastly, an individual completing a paper application
must sign the form, whereas the online system transfers the signature from the DMV records or a
state approved databank.
At the hearing held on October 25, Defendant Cole testified that her office would
accept paper applications after October 18 so long as the applicant completed the online
registration process prior to the deadline. In order to be registered or to make changes to a
registration, Defendant Cole testified that an applicant could mail the paper registration application
back to her office, personally deliver the application to her office, or could take the completed
application to his or her polling place, give it to an election official, and then cast a provisional
ballot. Defendant Cole concedes, however, there is nothing in the letter she sends with the
application that indicates to a would-be voter that he or she may personally deliver the application
to her office or take the application to a polling place and vote. The only option set forth in the
letter is that it must be mailed back to her office. In addition, although Defendant Cole states she
writes the date an applicant applies through the online system on the paper application she sends
to would-be voters, there is nothing in the letter that explains the paper registration will be
considered timely if it is returned after the October 18 deadline. At the time of the October 25
hearing, Defendant Cole said there were over 2,200 individuals who had attempted to register
online in Cabell County who had not yet returned a paper registration application and, therefore,
were not registered to vote.
-4-
Plaintiff Mullins is a resident of Cabell County who attempted to register using the
online system on October 16, two days prior to the deadline. Despite completing the online
registration, Plaintiff Mullins was not registered to vote in Cabell County pursuant to Defendant
Cole’s policy. At the hearing, Plaintiff Mullins testified that she had not yet received a letter from
Defendant Cole requiring her to fill out a paper registration application. Therefore, Plaintiff
Mullins brought this action on behalf of herself and others to enjoin Defendant Cole from refusing
to process the online applications and to issue a mandamus directing her to process the online voter
registration applications and changes to voter registrations for all those who are otherwise
qualified.
II.
STANDARD FOR INJUNCTIVE RELIEF
Although Plaintiff Mullins filed her motion as a request for a temporary restraining
order, the Court held a full adversary hearing on the motion. Defendant Cole was served a copy of
the Verified Complaint, filed a Response, and was represented by counsel at the hearing.
Accordingly, in light of these facts, the circumstances of this case, and given the scarcity of time
to rule upon the motion, the Court converted the action into one for a preliminary injunction at the
hearing. See Daly v. Tennant, Civ. Act. No. 3:16-08981, 2016 WL 6156177 (S.D. W. Va. Oct. 21,
2016) (same).
In deciding whether to issue a preliminary injunction, this Court recognizes as it
did in Daly that it “is an extraordinary remedy afforded prior to trial at the discretion of the district
court that grants relief pendente lite of the type available after the trial.” Real Truth About Obama,
Inc. v. FEC, 575 F.3d 342, 345 (4th Cir. 2009), vacated, 130 S. Ct. 2371 (2010), reinstated in part,
607 F.3d 355 (4th Cir. 2010) (citations omitted). “Granting the ultimate relief requested, even
-5-
temporarily, at an early point in the case, often prior to the issues even being joined in the
pleadings, seems rightly reserved for only the most compelling of cases.” Dewhurst v. Century
Aluminum Co., 731 F. Supp. 2d 506, 514 (S.D. W. Va. 2010) (citation omitted). In order to obtain
a preliminary injunction, a party must establish four elements: “[1] that he is likely to succeed on
the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3]
that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.”
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (citation omitted). As such, the party
seeking to obtain a “preliminary injunction must demonstrate by a clear showing that, among other
things, it is likely to succeed on the merits at trial.” Dewhurst, 731 F. Supp. 2d at 515 (italics
original; internal quotation marks and citations omitted). In this action, Plaintiff Mullins asserts
that she meets these factors.
III.
DISCUSSION
“It is beyond cavil that voting is of the most fundamental significance under our
constitutional structure.” Burdick v. Takushi, 504 U.S. 428, 433 (1992). “Other rights, even the
most basic, are illusory if the right to vote is undermined.” Wesberry v. Sanders, 376 U.S. 1, 17
(1964). “The right to vote freely for the candidate of one’s choice is the essence of a democratic
society, and any restrictions on that right strike at the heart of representative government.”
Reynolds v. Sims, 377 U.S. 533, 555 (1964). Given its most significant importance, “a citizen has
a constitutionally protected right to participate in elections on an equal basis with other citizens in
the jurisdiction.” Dunn v. Blumstein, 405 U.S. 330, 336 (1972) (citations omitted). The constitution
prohibits people from being classified in such a way that it unnecessarily abridges the right to vote.
Wesberry, 376 U.S. at 17. Thus, when people are classified in disparate ways or when restrictions
are placed on voting rights, the Equal Protection Clause is implicated. Obama for America v.
-6-
Husted, 697 F.3d 423 (6th Cir. 2012) (citing Bush v. Gore, 531 U.S. 98 (2000); League of Women
Voters v. Brunner, 548 F.3d 463 (6th Cir. 2008)).
When a law or rule is challenged, a court must weigh “the character and magnitude
of the asserted injury to the rights protected by the First and Fourteenth Amendments that the
plaintiffs seek to vindicate” against “the precise interests put forward by the State as justifications
for the burden imposed by its rule.” Anderson v. Celebrezze, 460 U.S. 780, 789 (1983). In making
its decision, the court must “determine the legitimacy and strength of each of those interests” and
“the extent to which those interests make it necessary to burden the plaintiff’s rights.” Id. The court
then must weigh all these factors in deciding the constitutionality of the challenged provision. Id.
When the extent to the asserted injury is slight, the law “imposes only ‘reasonable,
nondiscriminatory restrictions’ upon the First and Fourteenth Amendment rights of voters, ‘the
State’s important regulatory interests are generally sufficient to justify’ the restrictions.” Burdick
504 U.S. at 434 (quoting Anderson, 460 U.S. at 788-89 n.9). However, if the provision places a
“severe” burden on the rights of voters, “the regulation must be narrowly drawn to advance a state
interest of compelling importance.” Id. (quoting Norman v. Reed, 502 U.S. 279, 289 (1992)).
Utilizing this flexible standard, the Court turns to the facts of this case. As indicated
earlier, the online voter registration system was established by the West Virginia Secretary of State
as part of her statutory duty as the chief election officer to develop a uniform online registration
system throughout the state. Without doubt, its central purpose is to encourage voting, as it is the
most basic tenant of our democracy. Essential to this process is registering qualified individuals to
cast ballots. For those not registered to vote, the right to vote is meaningless. Here, the ease of
-7-
registering to vote using the online registration system has been denied to over 4,500 Cabell
County residents. 2 Of those, Plaintiff Mullins, along with over 2,200 other Cabell County
residents, were not registered at all because they had not returned paper registration forms to
Defendant Cole. Thus, Defendant Cole’s decision to not register over 2,200 voters strikes at the
very heart of our democratic process, and the Court finds the additional steps a would-be Cabell
County voter has to take in order to register places a “severe” burden on them.
In defense of her policy, Defendant Cole asserts that the Secretary of State’s online
registration system is inadequate. For instance, originally the online system did not have a place
for individuals to enter their phone numbers and e-mail addresses, but the paper applications did.3
However, it is undisputed that including one’s phone number and e-mail address is not required in
order to register. If that information was not written on a paper application, a qualified applicant
still would be registered. See W. Va. 3-2-5(d)(5) and (6) (providing that “no application may be
rejected for lack of . . . telephone number . . . e-mail address”). Thus, the fact that the online system
did not have a place to input this information cannot serve as a basis to deny online registrations.
Defendant Cole also argues that West Virginia Code § 3-2-5(c)(4) gives her total
discretion as to whether or not to accept electronically transferred signatures. This provision
provides, in part: “The clerk may accept the electronically transmitted signature kept on file with
another approved state database for an applicant who applies to register to vote using an approved
2
Defendant Cole testified that 4,661 individuals had used the online system to register or
change their registration in Cabell County from October 30, 2015 through October 18, 2016.
3
As stated earlier, Defendant Cole testified that the online system now includes a place to
add this information.
-8-
electronic voter registration system in accordance with procedures promulgated by the Secretary
of State.” W. Va. § 3-2-5(c)(4), in part. However, the Court finds that Defendant Cole cannot rely
upon this statute to refuse all online registrations merely because she does not like electronically
transferred signatures. The West Virginia legislature and the Secretary of State already have
determined that electronically transferred signatures are sufficient and appropriate for voter
registrations. If the Court reads West Virginia Code § 3-2-5(c)(4) so broadly as to allow Defendant
Cole to reject all electronic signatures based upon her personal preference, it would defeat the
government’s strong interest in establishing a uniform online voter registration system. Although
there may be some reason for a clerk to reject an individual electronically transferred signature on
a case-by-case basis, the Court declines to find the statute permits a county clerk to reject every
electronically transferred signature without any legitimate justification.
In this regard, although Defendant Cole believes an original signature on a paper
application form is superior to transferring a signature from the DMV or other approved database,
she offered no legitimate explanation for her belief. In fact, Defendant Cole testified that, once she
received a completed paper application, the information on the form is typed into the state-wide
voter registration list, and there is no additional verification of the signature performed. Therefore,
the fact that a paper application form is signed and mailed to Defendant Cole provides no more
indicia of authenticity than a signature maintained on a DMV or other state approved data bank.
Defendant Cole further argues that there is no constitutional right to register online,
and Plaintiff Mullins may register if she simply fills out a paper registration form. Although it is
true that residents of Cabell County may register or change their registrations by using paper
-9-
applications, voters in every other county in West Virginia are not required to take this additional
step, defeating the uniformity and ease of the online system established by the Secretary of State.
In fact, the character and magnitude of the burden Defendant Cole’s policy has placed on wouldbe voters is significant, and it has proven to be obstacle to over 2,200 individuals who have
attempted to register online, but who have remained disenfranchised and unable to vote as of the
date of the October 25 hearing.
Further troubling on this front is that Plaintiff Mulllins testified that she believed
she had successfully registered when she completed the online application. Online applicants in
Cabell County have no way of knowing that they need to monitor their mail for a paper application
in order to complete their registrations. For those who do notice the form in the mail, the Court
finds there also is a great potential for voter confusion.
First, the letter sent to voters is inaccurate. It states that the Secretary of State’s
“website does not provide the information that is required, by law, to be provided to this office in
order to process a voter application.” Exemplar of Letter (dated March 21, 2016), ECF No. 1-2.
However, this statement is patently untrue. The website requests all the required information. In
fact, by requiring an individual to enter both his or her driver’s license or state identification
number and the last four digits of the individual’s social security number, the website requires
more information than a paper application. A would-be voter reviewing the paper application could
easily recall that he or she provided this exact same information online, but there is nothing in the
letter that explains why Defendant Cole believes the information is sufficient. An applicant may
-10-
decide not to return the paper application because there is simply nothing he or she can add to what
already has been provided. In that instance, the individual remains unregistered and unable to vote.
Second, Defendant Cole concedes there is nothing in the letter that informs
applicants that if they received the letter after the October 18 deadline, or do not have the
opportunity to complete and return the paper application before the deadline, they will be
considered registered as of the date of their attempted online registration if they return the form
prior to the election. Similarly, although the letter states the form must be mailed back, Defendant
Cole testified that an applicant personally may deliver the form to her office or take it to the
appropriate polling place and cast a provisional ballot. Again, however, there is no information
provided to applicants that either of these choices are viable options. Thus, there is a high
likelihood that online applicants in Cabell County will be confused about whether they can vote
or not if they return a paper application after the October 18 deadline.
In considering all the above factors and balancing the reasoning of the policy
against the character and magnitude of the injury, the Court has no difficulty finding the policy
results in an unconstitutional burden on the right of Cabell County voters to vote. Without doubt,
the would-be voters of Cabell County who attempted to register online face a significant injury if
they fail to complete the additional and unnecessary steps required by Defendant Cole. When this
significant injury is weighed against the very weak interest Defendant Cole has in maintaining the
policy, it is clear that the policy cannot survive. Although the Court finds that Defendant Cole
acted under her good faith belief that paper applications are somehow better than the online system,
her personal beliefs do not outweigh the disparate treatment and disenfranchisement that resulted
-11-
to thousands of Cabell County residents. Certainly, the geographical disparity created by this
policy between residents of Cabell County and rest of West Virginia violates the Equal Protection
Clause. See, e.g, Bush v. Gore, 531 U.S. 98 (2000) (per curiam) (finding that a recount of votes in
Florida without adequate state-wide safeguards to ensure that the recount procedure was uniform
from county to county did not comport with the minimum equal protection and due process
requirements).
IV.
CONCLUSION
Accordingly, the Court finds Plaintiff Mullins has made a clear showing that: (1)
she is likely to succeed on the merits; (2) without immediate Court intervention, there is likely to
be irreparable harm to would-be voters who attempted to register online but who did not complete
a paper application as they would be prevented from voting in the general election; (3) the balance
of equities tips in her favor; and (4) an injunction is in the public interest as it protects the
fundamental right to vote. Thus, as stated at the hearing and in the Court’s Order entered on
October 25, 2016, the Court GRANTS the Preliminary Injunction.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented parties.
ENTER:
-12-
November 21, 2016
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?