JULIA SMITH GIBBONS, Circuit Judge.
Defendant-appellant J. Kenneth Blackwell, in his official capacity as the Secretary of State of the State of Ohio (the "Secretary"), moves this court to stay or vacate a temporary restraining order ("TRO") and associated orders to the Secretary and County Boards of Elections that restrain enforcement of certain absentee voter identification provisions under Ohio Rev.Code Ann. §§ 3509.03(E)(1)-(3), 3509.04, 3509.05(A). The orders were entered by the district court on October 26, 2006. Plaintiffs-appellees Northeast Ohio Coalition for the Homeless and Service Employees International Union, Local 1199 (the "Organizations") move to dismiss this appeal for lack of subject matter jurisdiction. The State of Ohio moves to intervene to represent the interests of the people of Ohio and the General Assembly in defending the constitutionality of the statute. For the following reasons, we deny the motion to dismiss for lack of jurisdiction, grant the motion to intervene, and grant in part the motion to stay or vacate the district court's orders.
On January 31, 2006, the Ohio General Assembly passed House Bill 3, Ohio's comprehensive election reform bill ("Voter ID law"), and the Governor signed the bill the same day. The bill amended the Ohio Election Code to require that voters provide any of several specific types of identification in order to cast a regular ballot in state and federal elections held in Ohio. Some Voter ID law provisions went into effect on May 2, 2006, and the remaining provisions went into effect on June 1, 2006. Portions of the challenged statutes relating to applications for absentee ballots were enacted as part of HB 234, which was effective on January 27, 2005.
The provisions of the Voter ID law that require voters to provide any of several specific types of identification when casting their ballots are mandatory for all persons who cast their votes by regular ballot on election day. Ohio Rev.Code Ann. § 3505.18(A)(1). These new voter-identification laws are not mandatory for voters who cast their votes by absentee ballot, whether by mail or in-person at their Boards of Elections, before or on election day. Ohio Rev.Code Ann. §§ 3509.03, 3509.04, 3509.05. However, like the sections governing election-day voting, the Voter ID law also includes other provisions relating to absentee voter identification requirements, and it is these provisions to which the TRO relates.
Ohio Rev.Code Ann. § 3509.03(E). Section 3509.04(B) requires that with each absentee ballot the Board of Elections include an identification envelope requiring a voter to provide one of the following:
Ohio Rev.Code Ann. § 3509.04(B). Section 3509.05(A) provides that when returning the absentee ballot:
Ohio Rev.Code Ann. § 3509.05(A). Absentee voting pursuant to these laws for the November 2006 election began in early October 2006.
On October 26, 2006, the Secretary issued Directive 2006-78 in an effort to "ensure that the November 7 elections are conducted uniformly throughout the State." In the Directive the Secretary defines the term "current" as used in the Voter ID law as "dated not more than six months from the date that it is presented to the election official." The Directive defines "government document" to include "any local, state or federal government document that shows the voter's name and current address." Finally, the Directive
On October 24, 2006, the Organizations filed suit in the district court claiming in relevant part that: (1) the voter identification laws for absentee ballots are confusing, vague, impossible to apply, and in fact are being applied differently by Ohio's Boards of Elections, causing the November 2006 election to be conducted in a manner that is fundamentally unfair in violation of the Due Process Clause of the Fourteenth Amendment (Count One); (2) the voter identification laws for absentee ballots cannot and will not be applied uniformly by Boards of Elections, violating the Equal Protection Clause of the Fourteenth Amendment (Count Two); and (3) the requirement of proof of current address for submission of absentee ballots, when other voters are not required to provide a current address, violates the Fourteenth Amendment and 42 U.S.C. § 1971(a)(2)(A)-(B) (Counts Eight, Nine, and Ten).
After a hearing on October 26, 2006, the district court issued a TRO restraining the enforcement of the absentee voting identification requirements in Ohio Rev.Code Ann. §§ 3509.03(E)(1)-(3), 3509.04, 3905.05(A) (quoted above). Specifically, the district court concluded the phrases "current," "other government document," "military identification," and "driver's license number" were unconstitutionally vague and were being unequally applied by the Boards of Elections. Although the effect of the clarifying Directive issued by the Secretary was discussed at the hearing, it is not addressed in the TRO. In addition to enjoining enforcement of these provisions, the district court ordered the Secretary to issue a directive to the Boards of Elections requiring that they not enforce the enjoined provisions, preserve all absentee ballots in their present form, and inform absentee voters that compliance with the enjoined provisions was not required. By its terms, the TRO remains in effect until the district court disposes of the Organizations' motion for a preliminary injunction, for which an evidentiary hearing is scheduled on November 1, 2006.
As the Secretary did not wish to file an appeal of the TRO, the Attorney General of Ohio on behalf of the State of Ohio (the "State") filed a motion to intervene in the case. The district court held a hearing on October 27, 2006, and denied the motion to intervene as of right, concluding that although the State had the requisite interest in the outcome of the case, that interest was adequately represented by the Secretary, who was also represented in the case by the Attorney General's office. The district court also denied permissive intervention, concluding that because the State's interests were adequately represented by the Secretary, intervention would present
The Attorney General's office, on behalf of the Secretary, filed a timely appeal of the TRO, which was docketed as No. 06-4412, moving to stay or vacate the district court's orders. The Organizations filed a motion to dismiss that appeal for lack of subject matter jurisdiction. The State moved to intervene in the appeal of the TRO. The State filed a separate appeal of the denial of its motion to intervene as of right in the district court case, which was docketed as No. 06-4421. When parties have filed separate timely notices of appeal, the appeals may be joined or consolidated by this court. Fed. R. of App. P. 3(b) (providing that the court may consolidate appeals on its own motion); see also In re Cannonsburg Envtl. Associates, Ltd., 72 F.3d 1260, 1269 (6th Cir.1996). Because both cases present common questions of law and fact, we consolidate the two cases. The analysis that follows in part IV, pertaining to the matter of the State's intervention, thus applies to both cases.
The Organizations move to dismiss appeal No. 06-4412 for lack of subject matter jurisdiction, arguing that 28 U.S.C. § 1292(a)(1) does not allow for an interlocutory appeal of the district court's TRO. This court has jurisdiction of appeals from "[i]nterlocutory orders of the district courts of the United States ... granting, continuing, modifying, refusing or dissolving injunctions." 28 U.S.C. § 1292(a)(1). In contrast, this court generally lacks jurisdiction to hear an appeal of the district court's decision to grant or deny a TRO. See Office of Pers. Mgmt. v. Am. Fed'n of Gov't Employees, AFL-CIO, 473 U.S. 1301, 1303-04, 105 S.Ct. 3467, 87 L.Ed.2d 603 (1985); Leslie v. Penn Cent. R.R. Co., 410 F.2d 750, 752 (6th Cir.1969). The rationale for this rule is that TROs are of short duration and usually terminate with a prompt ruling on a preliminary injunction, from which the losing party has an immediate right of appeal. See Vuitton v. White, 945 F.2d 569, 573 (3d Cir.1991). Therefore, an appeal of the TRO is not necessary to protect the rights of the parties, see id., and practical reasons favor waiting for an appeal of the preliminary injunction, see Dilworth v. Riner, 343 F.2d 226, 229 (5th Cir.1965) (noting that an appeal is normally not feasible within the short time available and that orderly procedure requires the trial judge pass on the question presented with full development of the facts and the law); Connell v. Dulien Steel Prods., Inc., 240 F.2d 414, 418 (5th Cir.1957).
However, the label attached to an order by the trial court is not decisive, and the court looks to the nature of the order and the substance of the proceeding below to determine whether the rationale for denying appeal applies. See In re Carroll, 903 F.2d 1266, 1269 (9th Cir.1990); Adams v. Vance, 570 F.2d 950, 953 (D.C.Cir.1978); Morning Tel. v. Powers, 450 F.2d 97, 99 (2d Cir.1971); Dilworth, 343 F.2d at 229; Connell, 240 F.2d at 418. An order may be appealed under section 1292(a)(1) if it has the practical effect of an injunction and "further[s] the statutory purpose of `permit[ting] litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence.'" Carson v. Am. Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981) (quoting Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181, 75 S.Ct. 249, 99 L.Ed. 233 (1955)); see Sims Varner & Assocs. v. Blanchard, 794 F.2d 1123, 1126-27 (6th Cir.1986). Accordingly, courts have allowed interlocutory appeal of
The TRO at issue in this case both threatens to inflict irretrievable harm before it expires and acts as a mandatory injunction that does not preserve the status quo. The TRO requires the Secretary to direct County Boards of Elections not to enforce the disputed voter identification requirements and, in fact, to instruct voters affirmatively that they need not comply with the identification requirements. Any absentee ballot cast during the operation of the TRO must necessarily be considered valid, regardless of whether the voter has complied with the identification requirements. As it will be difficult, if not impossible, to equitably enforce the voter identification requirements retroactively for these ballots, the TRO permanently exempts these ballots from the disputed law, regardless of the ultimate resolution of this case, inflicting an irretrievable harm on the State of Ohio. Thus the TRO goes far beyond preserving the status quo, which could be achieved by restraining the State from discarding any ballots that it found to be in violation of the identification requirements. The nature and effect of this TRO necessitate an immediate interlocutory appeal, and the court has subject matter jurisdiction over it. The motion to dismiss is denied.
The Attorney General of Ohio seeks to intervene on behalf of the State pursuant to Federal Rule of Civil Procedure ("F.R.C.P.") 24(a) and (b) "in order to defend the constitutionality of [Ohio] R.C. 3501.01, et seq., Ohio's Voter Identification Statutes [Voter ID law]." State of Ohio's Mot. to Intervene at 1. The State both moves to intervene in the appeal of the TRO before this court (No. 06-4412) and appeals the district court's denial of its motion to intervene as of right in the district court case (No. 06-4421). According to the State, the "Secretary's stated desire not to appeal has led to this motion to intervene on behalf of the State of Ohio and the General Assembly, who wish to participate in arguing the constitutionality of the statutes at issue." Id. This court may grant the motion to intervene pursuant to F.R.C.P. 24 either as a matter of right under 24(a) or, alternatively, permit the absentee State to intervene under 24(b). These same provisions govern the State's intervention in the district court as well.
Upon timely application, F.R.C.P. 24(a) permits anyone to intervene in an action:
The State first argues that it has a statutory right to intervene pursuant to 28 U.S.C. § 2403(b), which provides "[i]n any action, suit, or proceeding in a court of the United States to which a State or any agency, officer, or employee thereof is not a party, wherein the constitutionality of any statute of that State affecting the public interest is drawn in question, the court shall certify such fact to the attorney general of the State, and shall permit the State to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality." 28 U.S.C. § 2403(b) (emphasis added). However, as noted by the State itself, "this is not a case in which the duty to certify arises or [28 U.S.C. § 2403(b) ] strictly applies." State of Ohio's Mot. to Intervene at 1. The Secretary, an officer of the State, is already a party in this case and thus the provision is inapposite. Any argument that the Secretary's intention not to appeal the matter results in the Secretary not being a party to the matter for purposes of section 2403(b) is contrary to the plain language of the statute.
The State does, however, satisfy the requirements of F.R.C.P. 24(a)(2), and thus has a right to intervene. Under this court's interpretation of Rule 24(a)(2), a third party may qualify for intervention of right in the absence of a statute if the third party can satisfy four elements: (1) timeliness of application; (2) a substantial legal interest in the case; (3) impairment of the applicant's ability to protect that interest in the absence of intervention; and (4) inadequate representation of that interest by parties already before the court. Mich. State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir.1997).
The first two factors are easily met. The State of Ohio filed this motion within hours of the appeal by the defendant, and the application is therefore timely. Under this circuit's "rather expansive notion of interest," the State also has a manifest legal interest in defending the constitutionality of Ohio's laws. Id.; Bradley v. Milliken, 828 F.2d 1186, 1192 (6th Cir.1987) ("[T]his court has acknowledged that `interest' is to be construed liberally.").
The State's right to intervene then turns on the final two factors. The Supreme Court has emphasized that the requirement of impairment of a legally protected interest is a minimal one: the requirement is met if the applicant shows "that representation of his interest `may be' inadequate.'" Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n. 10, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972) (citation omitted); see also Mich. State AFL-CIO, 103 F.3d at 1247 ("a would-be intervenor must show only that impairment of its substantial legal interest is possible if intervention is denied. This burden is minimal." (citation omitted)). Here, an adverse ruling could hinder the State's ability to litigate
The State's burden with respect to establishing that its interest is not adequately protected by the existing party to the action is a minimal one; it is sufficient to prove that representation may be inadequate. Linton, 973 F.2d at 1319. A would-be intervenor is not required to show that the current representation will in fact be inadequate. Mich. State AFL-CIO, 103 F.3d at 1247 (finding that "it may be enough to show that the existing party who purports to seek the same outcome will not make all of the prospective intervenor's arguments."). In this case, the Secretary's primary interest is in ensuring the smooth administration of the election, while the State and General Assembly have an independent interest in defending the validity of Ohio laws and ensuring that those laws are enforced. Further, the Secretary's stated desire not to appeal the district court's grant of a TRO illustrates how the interests of the Secretary and the State of Ohio potentially diverge. See Mich. State AFL-CIO, 103 F.3d at 1248.
Accordingly, the Organizations' insistence that a would-be intervenor "must overcome the presumption of adequate representation that arises when they share the same ultimate objective as a party to the suit" is misplaced. Opp'n of Pls.-Appellees to Emergency Mots. for Reversal of Denial of Mot. to Intervene at 15 (citation omitted). As discussed above, the State and the Secretary do not have "the same ultimate objective." The Organizations' emphasis on which lawyers from the Attorney General's office attended the TRO hearing and the Secretary's intention to litigate the preliminary injunction is irrelevant. The difference of opinion regarding whether to appeal the TRO is merely illustrative of the underlying divergent interests of the Secretary and the State.
Under the circumstances of this case, then, we conclude that the State of Ohio has satisfied the four elements found in Federal Rule of Civil Procedure 24(a) and is entitled to intervention as of right, both in appeal No. 06-4412 and in the ongoing district court proceedings. Accordingly, we need not address the State's alternative argument for permissive intervention under Rule 24(b).
The Organizations also argue that the Attorney General has no authority to appeal the TRO in the Secretary of State's name. Opp'n of Pls.-Appellees to Emergency Mot. to Stay or Vacate District Ct.'s Order at 11-12 (citing "insufficient time or space to brief this question"). The State of Ohio responded by noting that "Ohio's Constitution does vest the Attorney General with independent authority to determine litigation, as that result inheres in the very structural decision to have an independently-elected Attorney General." State's Resp. to Pls.' Mot. to Dismiss for Lack of Subject Matter Jurisdiction at 6.
The exact extent of the Attorney General's litigation authority, however, is not clearly defined under Ohio law. The Ohio Supreme Court has not directly addressed the Attorney General's authority to litigate on behalf of a state officer when that officer no longer wishes to pursue the appeal. Other states' conclusions regarding the extent of the attorney general's litigation authority vary widely, and there is no clear consensus. Compare Commonwealth ex rel. Hancock v. Paxton, 516 S.W.2d 865, 867 (Ky.1974) (concluding that "in case of a conflict of duties the Attorney General's primary obligation is to the Commonwealth, the body politic, rather than to its officers, departments, commissions, or agencies.") and Sanderson v. Blue Cross & Blue Shield of Ala., 570 So.2d 675, 684 (Ala.1990) (holding that the attorney general had the authority to dismiss legal proceedings over the objection of an executive agency: "As the state's chief legal officer, the attorney-general has power, both under common law and by statute, to make any disposition of the state's litigation that he deems for its best interest.") with Santa Rita Mining Co. v. Dep't of Prop. Valuation, 111 Ariz. 368, 530 P.2d 360 (Ariz.1975) (holding that the attorney general lacked the authority to maintain an appeal without the approval of his agency client).
Accordingly, the State's motion to intervene in appeal No. 06-4412 is granted, and the State's appeal of the district court's denial of intervention in case No. 06-4421 is granted. In light of our holding that the State of Ohio is entitled to intervention of right under F.R.C.P. 24(a), and wary of determining an issue of Ohio constitutional and common law where unnecessary, we decline to wade into the debate regarding the parameters of the Attorney General's litigation authority.
The district court's decision to grant a temporary restraining order, when appealable, is reviewed by this court for abuse of discretion. Beacon J. Publ'g Co., Inc. v. Blackwell, 389 F.3d 683, 684 (6th Cir.2004). To determine whether a TRO should be stayed, the court considers the same factors considered in determining whether to issue a TRO or preliminary injunction. See Summit County, 388 F.3d at 550. Those factors are (1) whether the movant has a strong likelihood of success on the merits, (2) whether the movant would suffer irreparable injury absent a stay, (3) whether granting the stay would cause substantial harm to others, and (4) whether the public interest would be served by granting the stay. Id.; Nader v. Blackwell, 230 F.3d 833, 834 (6th Cir. 2000). "These factors are not prerequisites that must be met, but are interrelated considerations that must be balanced together." Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir.1991). For example, the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movants will suffer absent the stay. See id.
For an association's members to "otherwise have standing to sue in their own right," they must have (1) "suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical"; (2) "the injury has to be fairly traceable to the challenged action of the defendant"; and (3) "it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quotations and citations omitted). The record on the standing issue consists only of the unverified complaint.
Plaintiffs do not challenge the Secretary's authority to issue the Directive. Nor do they deny that it will at least prospectively obviate many of their vagueness and inconsistent treatment concerns. Plaintiffs argue, however, that the Directive may have the effect of disadvantaging or disenfranchising some who have already cast their absentee ballots. This speculation is insufficient to satisfy plaintiffs' burden of demonstrating a strong likelihood of success on the merits. Furthermore, plaintiffs' contention that confusion stemming from the pre-Directive vagueness of terms and inconsistent practices will have had a deterrent or chilling effect on absentee voters is unsubstantiated and too speculative to be cognizable.
The remaining factors we must consider strongly support staying the district court's orders. The balance of harms in this case significantly favors granting a stay of the TRO. Each day the TRO is in effect, the Secretary is forced to accept absentee ballots that do not comply with the voter identification requirements enacted by the General Assembly. Should the Secretary prevail after a full adjudication of the merits, it will be difficult, if not impossible, for the voter identification requirements to be applied retroactively to those absentee ballots casts during the TRO. "[T]he State will be irreparably injured in its ability to execute valid laws, which are presumed constitutional, for keeping ineligible voters from voting."
The public interest weighs in favor of granting a stay of the TRO. There is a strong public interest in allowing every registered voter to vote. See Summit County, 388 F.3d at 551; see also Purcell v. Gonzalez, ___ U.S. ____, 127 S.Ct. 5, 7-8, ___ L.Ed.2d ____, 2006 WL 2988365, at *2 (2006). There is also a strong public interest in permitting legitimate statutory processes to operate to preclude voting by those who are not entitled to vote. See Summit County, 388 F.3d at 551; see also Purcell, 127 S.Ct. at 7-8, 2006 WL 2988365, at *2. Finally, there is a strong public interest in smooth and effective administration of the voting laws that militates against changing the rules in the middle of the submission of absentee ballots. See Summit County, 388 F.3d at 551. As the Supreme Court recently recognized, court orders affecting elections can themselves result in voter confusion and cause the very chilling effect that plaintiffs claim they seek to avoid. See Purcell, 127 S.Ct. at 7-8, 2006 WL 2988365, at *2. The TRO issued by the district court needlessly creates disorder in electoral processes, without any concomitant benefit to the public.
After weighing all the factors required, the court concludes that the district court abused its discretion by granting the TRO.
For the foregoing reasons, we deny the appellee's motion to dismiss the appeal, grant the State's motion to intervene before this court, reverse the district court's denial of the State's motion to intervene as of right, and grant in part the Secretary's motion to stay or vacate the district court's orders, vacating the district court's issuance of the TRO except for its requirement that the Boards of Elections preserve all absentee ballots.
McKEAGUE, Circuit Judge, concurring.
I concur in Judge Gibbons' opinion in its entirety, but write separately to emphasize one point. The notion that plaintiff organizations could obtain emergency injunctive relief from a federal court, relief which has the effect of disrupting an ongoing election process in frustration of the duly enacted will of the people of a sovereign state, based on allegations admittedly unsupported by evidence that any of the organizations' members has been injured or is threatened with imminent injury, represents a disturbing expansion of associational standing principles.
Counsel for plaintiffs admitted at the hearing on the motion for TRO that plaintiffs could not identify a single member of either plaintiff organization that was affected by the alleged deficiencies in the Voter ID law asserted in support of the motion for TRO. TRO hrg. tr. pp. 39-40. Standing, counsel argued, and the district court held, was premised on the teaching of Sandusky Democratic Party v. Blackwell, 387 F.3d 565, 573-74 (6th Cir.2004).
Sandusky stands for the proposition that political parties and labor organizations have standing to assert the rights of
Granted, plaintiffs may yet be able to further develop the record in the district court hearing on the motion for preliminary injunction set for Wednesday, November 1, 2006. They would be well advised to do so, for it is their burden to establish standing.
In this vein, one further cautionary note is in order. Insofar as plaintiffs' standing implicitly rests on assertion of the interests of nonmembers for whose interests plaintiff Northeast Ohio Coalition for the Homeless advocates, e.g., homeless persons, plaintiffs are operating outside the bounds of traditional associational standing. They rely on a form of representational or third-party standing for which they have cited no controlling or even persuasive precedent. See Kowalski v. Tesmer, 543 U.S. 125, 129-30, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004) (observing that a party generally cannot rest its claim on legal rights of third parties and that exceptions to this rule have not been looked upon favorably). If plaintiffs mean to rely on the interests of nonmembers to make their case for injunctive relief, they should be prepared to identify legal authority for such an innovation in the established principles of associational or representational standing.
ARTHUR J. TARNOW, District Judge, concurring in part and dissenting in part.
I concur with the Majority's analysis of the jurisdictional question raised and of the State of Ohio's motion to intervene. I further agree with Majority's statement of the standard of review and the law concerning the district court's grant of a temporary restraining order and/or preliminary injunction.
However, I dissent from the Majority's opinion that the district court abused its discretion when it granted the Plaintiffs' request for a temporary restraining order. The district court's four part analysis in determining whether to grant the plaintiffs' request for a temporary restraining order correctly stated the law and was well reasoned in its application of the four factors. Applying the abuse of discretion standard, I find that there was no abuse of discretion. Moreover, in a recent voting rights case involving a temporary restraining order, the Supreme Court stated that "it was still necessary, as a procedural matter, for the Court of Appeals to give deference to the discretion of the District Court." Purcell v. Gonzalez, ___ U.S. ____, 127 S.Ct. 5, ___ L.Ed.2d ____ (2006)(per curiam). I am of the opinion that the Majority has failed to give this required deference to the district court's decision.
Finally, as the Majority noted in footnote 3, the Attorney General has stated in his Motion to Stay the District Court's Order that it is committed to working towards a consent TRO that obviates any
In a recent case from the Northern District of Ohio, the Secretary of State came to an agreement with a group of concerned voters over Ohio Revised Code Section 3505.20(A), which required naturalized citizens in Ohio to provide official documentation to prove citizenship if challenged by a poll worker. See Boustani, et al. v. Blackwell, ___ F.Supp.2d ____, 2006 WL 3064102, 2006 U.S. Dist.LEXIS 72422 (N.D.Ohio Oct. 4,2006) see also Boustani et al. v. Blackwell, ___ F.Supp.2d ____, 2006 WL 3064102, 2006 U.S. Dist. LEXIS 77989 (N.D.Ohio Oct. 26, 2006). As history in Ohio proves, the parties' concerns of an orderly election that guards against the risk disenfranchisement can and has been achieved through mutual agreement.