FACTS: In 2006, the ACLU of Ohio and partner organizations brought this case in the federal court for the Northern District of Ohio on behalf of several naturalized citizens and non-profit organizations with naturalized citizen members (originally captioned Boustani v. Blackwell). The lawsuit challenged a then-new state statute requiring naturalized Ohioans to provide proof of their citizenship at the polls. Judge Boyko issued a permanent injunction forbidding elections workers from requesting challenged voters’ citizenship documents or asking certain questions about citizenship.
Form 10-U, titled “Affidavit-Oath-Examination of Person Challenged,” is the form that the Secretary of State prescribes for precinct election officials to process challenges to a voter’s eligibility. Part (A) of Form 10-U addresses challenges alleging that the person in question is not a citizen.
From the 2006 injunction, until recently, Form 10-U only included one question, “Are you a citizen of the United States?” With no public announcement, on or about October 2, the Secretary of State issued a revised version of Form 10-U. Specifically, the Secretary added the following language to Part (A) of Revised Form 10-U:
(2) Are you a native or naturalized citizen? Ans. _____________
(3) Where were you born? Ans. _____________
(4) What official documentation do you possess to prove your citizenship? Ans._____________
Please provide that identification.
(The precinct election official must inspect documentation, including any certificate of naturalization and photo identification the voter provides.)
(The person must declare under oath that the person is the identical person named in the certificate. If the person states under oath that, by reason of the naturalization of the person’s parents or one of them, the person has become a citizen of the United States, and when or where the person’s parents were naturalized, the certificate of naturalization need not be produced.)
(If the person declares under oath and provides the required documentation and photo identification proving their citizenship, they may vote a regular ballot. If they do not provide the required documentation and photo identification proving their citizenship, they must be provided a provisional ballot.)
These added questions are the very questions that were permanently enjoined by Judge Boyko. Yet Secretary LaRose instructed Ohio’s county Boards of Elections that any voter challenged on the base of citizenship be questioned with this form and asked to provide documentary proof of citizenship. Otherwise, they will be provided with a provisional rather than a regular ballot and required to the documentation at the Board of Elections office within four days of the election.
LEGAL THEORY:
Secretary LaRose’s revisions to form 10-U and guidance that voters challenged on the basis of citizenship must be required to provide documentary proof of their citizenship at the polls violates a 2006 permanent federal injunction.
STATUS:
On October 23, on behalf of six of the original plaintiffs, we filed an Emergency Motion to Enforce the 2006 injunction via Civil Contempt Proceedings. The Court entered an expedited briefing schedule the next day. Defendants opposed the motion on October 25, and also requested that the Court dissolve the 2006 injunction. We filed a reply on October 28.
The Court denied our motion on October 30, but also refused to dissolve the 2006 permanent injunction. In its decision, the court also stated that it would hold the State to a representation that it had made in its Response: that Form 10-U will only be used to require naturalization documentation for voters who have a “noncitizen” notation on their ID. Beyond this, the court held, the Plaintiffs failed to sufficiently plead an undue burden on their fundamental right to vote or disparate treatment to establish standing to challenge Defendant’s actions.
