Harkless v. Brunner ( 2008 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0389p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
CARRIE HARKLESS; TAMECA MARDIS; ASSOCIATION X
OF COMMUNITY ORGANIZATIONS FOR REFORM NOW, -
Plaintiffs-Appellants, -
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Nos. 07-3829/4165
,
v. >
-
-
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JENNIFER BRUNNER, Secretary of State; HELEN E.
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JONES-KELLEY, Director of the Department of Job
Defendants-Appellees. -
and Family Services,
-
N
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 06-02284—Patricia A. Gaughan, District Judge.
Argued: June 12, 2008
Decided and Filed: October 28, 2008
Before: SILER and COLE, Circuit Judges; CLELAND, District Judge.*
_________________
COUNSEL
ARGUED: Neil A. Steiner, DECHERT, New York, New York, for Appellants. Henry G. Appel,
Michael D. Meuti, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for
Appellees. ON BRIEF: Neil A. Steiner, Robert W. Topp, DECHERT, New York, New York, Lisa
J. Danetz, Brenda Wright, DEMOS: A NETWORK FOR IDEAS & ACTION, Brighton,
Massachusetts, Jon M. Greenbaum, LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER
LAW, Washington, D.C., for Appellants. Henry G. Appel, Michael D. Meuti, William P. Marshall,
Richard N. Coglianese, Damian Sikora, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellees. Dirk C. Phillips, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Amicus Curiae.
*
The Honorable Robert H. Cleland, United States District Judge for the Eastern District of Michigan, sitting
by designation.
1
Nos. 07-3829/4165 Harkless, et al. v. Brunner, et al. Page 2
_________________
OPINION
_________________
SILER, Circuit Judge. Plaintiffs, Carrie Harkless, Tameca Mardis, and the Association of
Community Organizations for Reform Now (“ACORN”) (collectively, “plaintiffs”), appeal the
dismissal of their suit brought pursuant to the National Voter Registration Act of 1993 (“NVRA”),
42 U.S.C. § 1973gg-5. The suit alleges that the defendants, Jennifer Brunner, Secretary of State for
the State of Ohio (“the Secretary”), and Helen E. Jones-Kelley, Director of the Department of Job
and Family Services (“DJFS”) for the State of Ohio (“the Director”), failed to comply with Section
7 of the NVRA. Because the complaint states a cause of action against the Secretary and the
Director, we REVERSE and REMAND for proceedings consistent with this opinion.
I. BACKGROUND
A. Facts
Because this is an appeal from the grant of a Rule 12(b)(6) motion to dismiss, “the following
account accepts as true the facts alleged in the complaint.” Jones v. City of Cincinnati, 521 F.3d
555, 557 (6th Cir. 2008). Harkless is an Ohio citizen living in Lorain. She receives food stamps,
Medicaid assistance, and cash assistance through Ohio Works First. These benefits are administered
by the DJFS for the State of Ohio. Harkless is eligible to vote in Ohio, and she was previously
registered to vote. However, she “has moved since registering to vote and has not changed her voter
registration address, and she has not been offered the opportunity to register to vote or change her
voter registration address on any of her visits to the DJFS,” as required by Section 7 of the NVRA.
Mardis is an Ohio citizen living in Cleveland. She receives food stamps and Medicaid
assistance through the DJFS. She is eligible to vote in Ohio, but she is not registered to vote “and
has not been offered the opportunity to register to vote on any of her visits to the DJFS,” as required
by Section 7 of the NVRA.
ACORN is a non-profit organization incorporated in Louisiana with several offices in Ohio.
Its main Ohio office is in Cleveland, and it has more than 5,600 members in its six Ohio chapters.
It spends “hundreds of thousands of dollars each year on voter registration activities in the state of
Ohio.” ACORN regularly conducts voter registration drives to collect voter registration applications
from people outside of DJFS offices who were not offered the opportunity to register to vote during
visits to DJFS offices, as required by Section 7 of the NVRA.
There is widespread noncompliance with the NVRA’s requirements. The Secretary has
limited her activities to the maintenance of a toll-free telephone number that county DJFS offices
may call to receive more voter registration application forms. The DJFS denied legal responsibility
for ensuring that voter registration services are available at public assistance agencies. The
defendants have failed to monitor NVRA compliance by DJFS offices or enforce the mandates of
Section 7 of the NVRA in such offices. Spot checks performed during October and November of
2005 at DJFS offices in Lorain, Franklin, Delaware, Lake, Mahoning, and Cuyahoga counties
revealed that there were no voter registration forms at any offices except in Mahoning County. A
2005 survey conducted by ACORN revealed that only 3 out of 103 people exiting a DJFS office
were offered a form asking whether they wanted to register to vote. Between 2002 and 2004, DJFS
offices for rural counties with relatively small populations registered far more voters than urban
counties with larger populations and more people living at or below the poverty line. In the same
time period, DJFS offices in 10 counties failed to register a single voter, DJFS offices in 17 counties
registered fewer than 10 voters, and DJFS offices in 32 counties registered fewer than 100 voters.
Nos. 07-3829/4165 Harkless, et al. v. Brunner, et al. Page 3
During 2003 and 2004, DJFS offices statewide processed about 4.7 million applications for food
stamps and processed less than 1.5% of that number of voter registration application forms.
On February 23, 2006, the Greater Cleveland Voter Coalition sent a letter to the Secretary
outlining Ohio’s failure to comply with the NVRA and requesting that steps be taken to bring the
state into compliance. On May 12, 2006, ACORN sent a letter to the Secretary to provide written
notice of the violations as required by the NVRA. The letter stated that ACORN would bring suit
unless Ohio devised a plan to implement the NVRA. The Director was sent a copy of the letter. On
May 26, 2006, the Secretary’s office responded to the Greater Cleveland Voter Coalition letter,
asserting that NVRA compliance was not the Secretary’s responsibility. ACORN received a copy
of the letter. ACORN again wrote the Secretary in July 2006, offering to meet and address steps
Ohio could take to ensure NVRA compliance. The Secretary did not respond, and in September
2006 the plaintiffs filed a complaint in the Northern District of Ohio alleging that the Secretary and
the Director failed to fulfill their obligations under Section 7 of the NVRA.
B. The District Court’s Opinions
The district court granted the defendants’ motions to dismiss. Harkless v. Blackwell,1 467
F. Supp. 2d 754 (N.D. Ohio 2006). First, the court concluded that ACORN lacked standing to bring
suit. Id. at 759. It ruled ACORN lacked standing to sue on its own behalf because the complaint
failed to allege that ACORN’s ability to further its goals had been “‘perceptively impaired’ so as to
constitute far more than simply a setback to the organization’s abstract social interests.” Id. The
court ruled that ACORN lacked associational standing because ACORN “failed to allege anything
except ‘a setback to its abstract social interests,’” and ACORN failed to “allege[] facts
demonstrating that any of ACORN’s members have suffered, or will suffer, a concrete, actual injury
traceable to defendants’ alleged violations of the NVRA.” Id. at 761.
Second, the court ruled that the complaint should not be dismissed on grounds that Harkless
and Mardis failed to comply with the NVRA’s notice requirements. Id. at 761-62. Citing ACORN
v. Miller, 129 F.3d 833, 838 (6th Cir. 1997), it held that “the Sixth Circuit has determined that notice
sent by ACORN of the same NVRA violation alleged by the individual plaintiffs satisfies the notice
requirement.” Harkless, 467 F. Supp. 2d at 761.
Third, the court concluded that the Secretary was not a proper party to the suit because “the
fact that plaintiffs allege that counties are not complying with their duties under the law is
insufficient to state a claim against the Secretary.” Id. at 762. The court ruled that under the Ohio
Revised Code and the Ohio Administrative Code the county DJFS offices bore the burden of
providing voter registration forms, and “the county DJFS offices have a duty to implement
procedures designed to comply with the NVRA.” Id. at 763. The court found support for this
conclusion in United States v. Missouri, No. 05-4391-CV-C-NKL, 2006 WL 1446356 (W.D. Mo.
May 23, 2006). In Missouri, “[t]he court held that despite the fact that, pursuant to the NVRA,
Missouri has designated the Secretary of State as the chief election official to coordinate NVRA
responsibilities for Missouri, the Secretary of State was not responsible for the enforcement of the
NVRA against local election authorities.” Harkless, 467 F. Supp. 2d at 764. The court
distinguished this case from United States v. New York, 255 F. Supp. 2d 73 (E.D.N.Y. 2003), which
held “that two state public assistance agencies, which delegated their NVRA responsibilities to local
agencies, were responsible for ensuring that their district offices complied with [the] NVRA.”
Harkless, 467 F. Supp. 2d at 765. The court found that “New York is distinguishable because that
case made clear that New York law granted the State control over the local offices.” Id.
1
When the plaintiffs filed suit, J. Kenneth Blackwell was the Secretary of State and Barbara Riley was the
Director of the Ohio DJFS. Brunner is the current Secretary and Jones-Kelley is the current Director. They have been
substituted as defendants in this action.
Nos. 07-3829/4165 Harkless, et al. v. Brunner, et al. Page 4
Finally, the court concluded that the Director was not a proper party to the suit because “no
NVRA section requires the director of a state’s public assistance agency to ensure compliance by
county departments,” and “the Ohio statutes do not require the Ohio DJFS to ensure that the county
departments comply with the NVRA.” Id. at 769.
The court denied the plaintiffs’ motion for reconsideration, but it did not address their
request to file an amended complaint, apparently finding it moot in light of its decision that the
defendants were not proper parties.
II. STANDARD OF REVIEW
We review de novo the dismissal of a complaint for failure to state a cause of action. League
of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) (citing Kottmyer v.
Maas, 436 F.3d 684, 688 (6th Cir. 2006)). “The court must construe the complaint in the light most
favorable to plaintiffs, accept all well-pled factual allegations as true and determine whether
plaintiffs undoubtedly can prove no set of facts consistent with their allegations that would entitle
them to relief.” Id. (citing Kottmyer, 436 F.3d at 688).
III. ANALYSIS
The overarching question in this case is whether states should be held responsible for
implementing the requirements of Section 7 of the NVRA. The two related secondary questions are
(1) whether Ohio’s Secretary of State, designated by Ohio’s implementing legislation as the chief
election official, has a role in ensuring Ohio’s compliance with the NVRA, and (2) whether the
Director of the DJFS has a role in ensuring Ohio’s compliance with the NVRA. We first address
the statutory framework and then address each defendant in turn.
A. The NVRA and Ohio’s Implementing Legislation
1. The NVRA
Congress enacted the NVRA, 107 Stat. 77, 42 U.S.C. § 1973gg et seq., to “increase the
number of eligible citizens who register to vote in elections for Federal office,” to “protect the
integrity of the electoral process,” and to “ensure that accurate and current voter registration rolls
are maintained.” Id. § 1973gg(b); see also ACORN v. Miller, 129 F.3d 833, 835 (6th Cir. 1997)
(holding that Congress passed the NVRA “[i]n an attempt to reinforce the right of qualified citizens
to vote by reducing the restrictive nature of voter registration requirements”). This case involves
Section 7 of the NVRA, designed specifically to increase the registration of “the poor and persons
with disabilities who do not have driver’s licenses and will not come into contact with the other
principal place to register under this Act [motor vehicle agencies].” H.R. REP. NO. 103-66, at 19
(1993) (Conf. Rep.), as reprinted in 1993 U.S.C.C.A.N. 140, 144.
The NVRA requires that “notwithstanding any other Federal or State law, . . . each State
shall establish procedures to register to vote in elections for Federal office . . . by application in
person . . . at a Federal, State, or nongovernmental office designated under [Section 7].” 42 U.S.C.
§ 1973gg-2(a)(3)(B). Section 7 requires that states designate as voter registration agencies
(“VRAs”) “all offices in the State that provide public assistance[] and all offices in the State that
provide State-funded programs primarily engaged in providing services to persons with disabilities.”
Id. § 1973gg-5(a)(2)(A)-(B). In Ohio, the DJFS and all of its local offices have been designated as
VRAs. See Ohio Rev. Code Ann. § 3501.01(X). VRAs are required to distribute voter registration
applications, assist applicants in completing applications, and accept completed applications. 42
U.S.C. § 1973gg-5(a)(4)(A)(i)-(iii). Thus, in accordance with the NVRA, any time a person enters
a DJFS office to receive food stamps, Medicaid assistance, welfare, or disability benefits assistance,
Nos. 07-3829/4165 Harkless, et al. v. Brunner, et al. Page 5
that person should receive a voter registration form for federal elections and assistance in filling out
the form.
The NVRA also mandates that “[e]ach State shall designate a State officer or employee as
the chief State election official to be responsible for coordination of State responsibilities under [the
NVRA].” Id. § 1973gg-8. As noted in the legislative history, this official is “responsible for
implementing the state’s functions under the bill.” S. REP. NO. 103-6, at 39 (1993). In Ohio, that
official is the Secretary.
The NVRA authorizes judicial intervention if a state fails to comply with its terms. Miller,
129 F.3d at 835 (citing 42 U.S.C. § 1973gg-9). “The Attorney General may bring a civil action in
an appropriate district court for such declaratory or injunctive relief as is necessary to carry out [the
NVRA].” 42 U.S.C. § 1973gg-9(a). Also, “[a] person who is aggrieved by a violation of [the
NVRA] . . . may bring a civil action in an appropriate district court for declaratory or injunctive
relief with respect to the violation.” Id. § 1973gg-9(b)(1)-(2).
2. Ohio’s Implementing Legislation
To implement the NVRA, the Ohio General Assembly passed Amended Substitute Senate
Bill 300, which incorporated the NVRA’s mandates into Chapter 35 of the Ohio Revised Code.
Ohio law requires each DJFS office to “designate one person within that agency to serve as
coordinator for the voter registration program within the agency and its departments, divisions, and
programs. The designated person . . . shall be responsible for administering all aspects of the voter
registration program for that agency as prescribed by the secretary of state.” Ohio Rev. Code Ann.
§ 3503.10(A). The DJFS offices are required to (1) provide “voter registration applications and
assistance in the registration of persons qualified to register to vote,” id. § 3503.10(B), (2) distribute
a form in conjunction with the voter registration application that states, inter alia, that registering
to vote or declining to register will not affect the amount of assistance provided, id. § 3503.10(C)(1)-
(4), (3) distribute a voter registration form “to each applicant with each application for service or
assistance,” id. § 3503.10(D), and (4) train employees to administer the voter registration program
and accept completed voter registration applications, id. § 3503.10(E)(1)-(4). “The [DJFS] county
department[s] . . . shall make voter registration applications as prescribed by the secretary of state
under [Ohio Rev. Code Ann. §] 3503.10 . . . available to persons” who are applying for or receiving
public assistance. Id. § 329.051.
Ohio has designated the Secretary as its chief election officer. Id. § 3501.04. The Secretary
must “[p]rescribe a general program for registering voters or updating voter registration information,
such as name and residence changes, by . . . designated agencies,” id. §3501.05(R), “[p]rescribe a
program of distribution of voter registration forms through . . . designated agencies,” id.
§ 3501.05(S), and “[a]dopt rules . . . for the purpose of implementing the program for registering
voters through . . . designated agencies,” id. § 3501.05(U). The Secretary must also “transmit
written instructions on the implementation of the voter registration program within each designated
agency,” id. § 3503.10(F), and “prepare and cause to be displayed in a prominent location in each
designated agency a notice that identifies the person designated to assist with voter registration, the
nature of that person’s duties, and where and when that person is available for assisting in the
registration of voters,” id. § 3503.10(I). Significantly, Ohio law empowers the Secretary to
“[c]ompel the observance by election officers2 in the several counties of the requirements of the
election laws,” id. § 3501.05(M), and to “investigate the administration of election laws, frauds, and
2
Ohio law defines “election officer” as any of the following: (1) the Secretary, (2) employees of the Secretary
serving the division of elections, (3) the director of a board of elections, (4) the deputy director of a board of elections,
(5) a member of a board of elections, (6) employees of a board of elections, (7) precinct polling place judges, and
(8) employees appointed by the boards of elections on a temporary or part-time basis. Id. at § 3501.01(U).
Nos. 07-3829/4165 Harkless, et al. v. Brunner, et al. Page 6
irregularities in elections in any county, and report violations of election laws to the attorney general
or prosecuting attorney, or both, for prosecution,” id. at § 3501.05(N)(1).
B. Are the Defendants Proper Parties?
1. The Secretary
To determine whether the Secretary may be held responsible for Ohio’s NVRA violations,
we need not look further than the text of the statute. The NVRA requires that each state “designate
a State officer or employee as the chief State election official to be responsible for coordination of
State responsibilities under [the NVRA].” 42 U.S.C. § 1973gg-8. As noted in the legislative
history, this designated official is “responsible for implementing the state’s function under the bill.”
S. REP. NO. 103-6, at 39 (1993). See also Nat’l Coal. for Students with Disabilities Educ. & Legal
Defense Fund v. Taft, No. C2-00-1300, 2001 WL 1681115, at *3 (S.D. Ohio Sept. 24, 2001)
(“Ohio’s Secretary of State and not its Governor has the duty and authority to implement and
enforce the provisions of the NVRA.”); Voluntary Guidance on Implementation of Statewide Voter
Registration Lists, Election Assistance Comm’n, 70 Fed. Reg. 44593-02, at II(G) (Aug. 3, 2005)
(“The chief State election official is the highest ranking State official who has, as a primary duty,
the responsibility to ensure the lawful administration of voter registration in Federal elections.”).
Despite this clear language, the Secretary–citing 42 U.S.C. § 1973gg-8–contends that the
only task that Congress imposed upon her is the “coordination of State responsibilities under th[e]
Act.” According to her, beyond this duty to “coordinate,” Congress assigned no specific tasks to
the Secretary, instead choosing to allow states to determine how to allocate responsibility for the
NVRA’s mandates. And, because Ohio chose to implement its requirements through the county
departments and to make local officials responsible, those local officials, not the Secretary, are the
proper parties to this lawsuit.
Under the plain language of the statute, the designated officer, here the Secretary, must
coordinate state responsibilities. “Coordination,” according to the Oxford English Dictionary, is
“[t]he action of co-ordinating; the condition or state of being co-ordinated or co-ordinate.” Oxford
English Dictionary (2d ed. 1989). It is also defined as the “[h]armonious combination of agents or
functions towards the production of a result.” Id. The Secretary’s focus on the word “coordination”
in isolation ignores the phrase it modifies, which is “state responsibilities”—namely, that “[e]ach
State shall designate a State officer or employee” who is “to be responsible for coordination of State
responsibilities.” 42 U.S.C. § 1973gg-8. Those responsibilities include the requirement that each
state “designate as voter registration agencies . . . all offices in the State that provide public
assistance.” Id. § 1973gg-5(a)(2)(A). The Act goes on to state, in no uncertain terms, that each
VRA “shall” distribute voter registration forms, assist applicants in completing voter registration
forms, and accept completed forms. Id. § 1973gg-5(a)(4)(A).
The Secretary argues that once the state designates an office as a VRA, her responsibility
ends, and it is up to the designated office to carry out the remaining tasks. According to this view,
if every state passed legislation delegating NVRA responsibilities to local authorities, the fifty states
would be completely3insulated from any enforcement burdens, even if NVRA violations occurred
throughout the state.
However, the entire Act, including other subsections, speaks in terms of state
responsibilities; what is noticeably missing is any mention of county, municipal, or other local
authorities. Indeed, Congress grafted the NVRA onto the existing public assistance structure, under
3
If named as parties to this lawsuit, local authorities might claim that the state officials are the parties
responsible for implementation and enforcement of NVRA obligations.
Nos. 07-3829/4165 Harkless, et al. v. Brunner, et al. Page 7
which the fifty states, not their political subdivisions, have the ultimate accountability. Accordingly,
the better interpretation of the statute reads these two provisions together—that each state shall
designate voter registration agencies, and that each state shall ensure that the agencies complete the
required tasks. And the Secretary, as Ohio’s chief election officer, is responsible for “harmonious
combination”—or implementation and enforcement—of that program on behalf of Ohio.4
Two other provisions of the NVRA confirm this reading of the statute. First, private citizens
aggrieved by a violation of the NVRA may bring a lawsuit for declaratory or injunctive relief with
respect to the violation. Id. § 1973gg-9(b)(1)-(2). But before doing so, that person must “provide
written notice of the violation to the chief election official of the State involved.” Id. Only “[i]f the
violation is not corrected within 90 days after receipt of a notice,” is a private citizen then authorized
to bring suit. Id. Second, Section 7 also provides that “[a]ll departments, agencies, and other
entities of the executive branch of the Federal Government shall, to the greatest extent practicable,
cooperate with the States in carrying out [the Act].” Id. § 1973gg-5(b). These provisions would be
pointless if states could abdicate their responsibilities by delegating them to local officials.
Requiring would-be plaintiffs to send notice to their chief election official about ongoing NVRA
violations would hardly make sense if that official did not have the authority to remedy NVRA
violations. Similarly, federal cooperation with state authorities would be meaningless if states had
no role in the implementation or enforcement of NVRA requirements.
Furthermore, the courts that have been faced with similar issues support this reading of the
NVRA. In United States v. New York, 255 F. Supp. 2d 73, 78 (E.D.N.Y. 2003), the district court
considered whether two state agencies were required to ensure NVRA compliance by district offices
run by local governments. The court concluded that “[i]t would be plainly unreasonable to permit
a mandatorily designated State agency to shed its NVRA responsibilities because it has chosen to
delegate the rendering of its services to local municipal agencies.” Id. at 79. Similarly, the Fourth
Circuit in Robertson v. Jackson, 972 F.2d 529, 533-35 (4th Cir. 1992), discussed, in the context of
the Food Stamp Act, whether state agencies may avoid their federal responsibilities through
delegation. The court concluded that “[a] state that chooses to operate its program through local
. . . agencies cannot thereby diminish the obligation to which the state, as a state, has committed
itself, namely, compliance with federal requirements.” Id. at 534; see also Woods v. United States,
724 F.2d 1444, 1447 (9th Cir. 1984) (“While the state may choose to delegate some administrative
responsibilities, the ultimate responsibility for operation of the [food stamp program] remain[s] with
the state.”).
The only case to the contrary, United States v. Missouri, No. 05-4391-CV-C-NKL, 2006 WL
1446356 (W.D. Mo. May 23, 2006), was reversed in United States v. Missouri, 535 F.3d 844, 852
(8th Cir. 2008). The district court held that the Missouri Secretary of State was not a proper
defendant in an action under Section 8 of the NVRA (concerning maintenance of voter registration
lists), because state law vested authority for voter registration lists in the state’s 116 local election
officials. Missouri, 2006 WL 1446356, at *8.
In Missouri, the district court explicitly relied on the fact that Missouri law did not give the
Secretary of State enforcement authority. Id. at *6-7. On appeal, the Eighth Circuit found that
“[u]nder the NVRA’s plain language, Missouri may not delegate [its] responsibility . . . to a local
official and thereby avoid responsibility. Missouri, 535 F.3d at 850. Ohio’s statutes implementing
the NVRA, in contrast, bestow upon the Secretary an obligation to enforce statewide compliance with
4
The Secretary also contends that Congress would have used the word “enforcement” had it meant to give the
chief election officer enforcement power. “Enforcement” makes sense when an official is to ensure compliance from
a third party, whether it be private citizens or political subdivisions. But because Congress intended the states
themselves, and not some third party, to have the responsibility for implementing the statute, “coordination” is the more
appropriate term.
Nos. 07-3829/4165 Harkless, et al. v. Brunner, et al. Page 8
the NVRA. Under Ohio Rev. Code Ann. § 3501.05(N)(1), the Secretary of State “shall . . .
investigate the administration of election laws, frauds, and irregularities in elections in any county,
and report violations of election laws to the attorney general or prosecuting attorney, or both, for
prosecution.” In performing these duties, the Secretary “may administer oaths, issue subpoenas,
summon witnesses, compel the production of books, papers, records, and other evidence, and fix the
time and place for hearing any matters relating to the administration and enforcement of the election
laws.” Id. § 3501.05(CC). Accordingly, even if the word “coordination” in the NVRA is truly vague,
Ohio law makes it abundantly clear that the Secretary is responsible for the implementation and
enforcement of Section 7. Ohio law also makes clear that she has the authority to do so.
The plain-statement rule,5 upon which the Secretary so heavily relies, does not help her. First,
as we have explained, the NVRA and Ohio’s implementing statute are clear: the Secretary is
responsible for managing the multiple state responsibilities under the NVRA. Second, the plain-
statement rule does not apply to the NVRA. The Secretary is correct that when Congress attempts
to abrogate a state’s sovereign immunity under Section 5 of the Fourteenth Amendment, it must make
its intent to do so clear and unequivocal. See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 457 (1991);
Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65 (1989); Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 99 (1984). Congress enacted the NVRA, however, under Article I, Section
4 of the Constitution, more commonly known as the Elections Clause.6 ACORN v. Miller, 129 F.3d
833, 836 (6th Cir. 1997).
In Miller, we explained that the Elections Clause “explicitly grants Congress the authority
either to ‘make’ laws regarding federal elections . . . , or to ‘alter’ the laws initially promulgated by
the states. Thus, unlike the Commerce Clause . . . , Article I section 4 specifically grants Congress
the authority to force states to alter their regulations regarding federal elections.” Id. Indeed, as the
text of the Constitution makes clear, the Clause expressly presses states into the service of the federal
government by specifying that state legislatures “shall” prescribe the details necessary to hold
congressional elections. This stands in stark contrast to virtually all other provisions of the
Constitution, which merely tell the states “not what they must do but what they can or cannot do.”
ACORN v. Edgar, 56 F.3d 791, 794 (7th Cir. 1995). When it comes to time, place, and manner
regulations for federal elections, the Constitution primarily treats states as election administrators
rather than sovereign entities. See id. at 796 (“[I]n this case Illinois advances the . . . notion that to
make a state administer federal elections fatally compromises state sovereignty. That particular ‘fatal
compromise,’ however, is built into the Constitution, precisely in Article I section 4, the first sentence
of which places the burden of administering federal elections on the states.”).
The Elections Clause also gives a broad grant of power to Congress, allowing it to define the
boundaries of state transgressions and to remedy any wrongdoing. The Commerce Clause (read in
conjunction with the Necessary and Proper Clause), for example, only permits Congress to “make
all Laws which shall be necessary and proper” to “regulate Commerce . . . among the several States”;
by contrast, the Elections Clause allows Congress to “make or alter” laws affecting the states. See
Miller, 129 F.3d at 836; Edgar, 56 F.3d at 794-96. In ratifying Article I, Section 4, the states not only
gave Congress plenary authority over federal elections but also explicitly ensured that all conflicts
5
“Because states retain their sovereignty under the Tenth Amendment, Congress in enacting legislation affecting
the balance in our federal system between the national and state governments must by plain statement make clear that
it has duly deliberated the issue and fully intended to reach that result.” In re Brentwood Outpatient, Ltd., 43 F.3d 256,
264 (6th Cir. 1994).
6
“The Times, Places and Manner of holding Elections . . . shall be prescribed in each State . . .; but the Congress
may at any time by Law make or alter such Regulations. . . .” U.S. CONST. art. I, § 4, cl. 1.
Nos. 07-3829/4165 Harkless, et al. v. Brunner, et al. Page 9
with similar state laws would be resolved wholly in favor of the national government.7 Accordingly,
the logic behind the plain-statement rule—that Congress must be explicit when it encroaches in areas
traditionally within a state’s core governmental functions—does not apply when Congress acts under
the Elections Clause, as it did in enacting the NVRA. See Miller, 129 F.3d at 836 (rejecting
Michigan’s argument that the NVRA “is unconstitutional because it . . . imping[es] upon basic
principles of federalism and violat[es] the Tenth Amendment”); Edgar, 56 F.3d at 794-96.
Accordingly, the Secretary is a proper party to this suit.
2. The Director
The Ohio DJFS is a state agency established by statute and “administered by the director of
job and family services.” Ohio Rev. Code Ann. § 121.02(H). The Director is appointed by the
governor with the consent of the Ohio senate and serves at the pleasure of the governor. Id.
§ 121.03(E). The county DJFS offices are separate from the state DJFS; they consist of a county
director appointed by the board of county commissioners and other staff and employees. Id.
§ 329.01. Accordingly, each county DJFS serves as a VRA pursuant to Section 7 of the NVRA. See
id. § 329.051 (“The county [DJFS] shall make voter registration applications . . . available to persons
who are applying for [or receiving public assistance].”).
Despite this distinction between the state and county DJFS offices, federal and Ohio law
provide the statewide DJFS (and thus the Director) with the authority to direct county offices to
comply with the NVRA. First, Section 7 of the NVRA requires that “[e]ach State shall designate as
voter registration agencies . . . all offices in the State that provide public assistance.” 42 U.S.C.
§ 1973gg-5(a)(2)(A). And, as discussed, the DJFS and all of its local offices have been designated
as VRAs. Ohio Rev. Code Ann. § 3501.01(X). Thus, both the statewide and the local DJFS offices
qualify as VRAs, and both are subject to the requirements placed on those agencies by Section
7—namely, the distribution of voter registration applications, assistance in completing applications,
and the acceptance of completed applications.
Moreover, the Director, as the head of the “single state agency” in Ohio responsible for
administering public assistance programs, has the responsibility to provide statewide voter
registration services. Under Ohio Rev. Code Ann. § 5101.24, the statewide DJFS is empowered to
take action against a county office that fails to comply with federal law, including Section 7 of the
NVRA:
Regardless of whether a family services duty is performed by a county family services
agency . . . the department of job and family services may take action under division
(C) of this section against the responsible county grantee if the department determines
any of the following are the case: . . . (3) A requirement for the family services duty
established by the department or any of the following is not complied with: a federal
or state law . . . .
Id. § 5101.24(B) (emphasis added). In turn, Subsection (C), referenced in § 5101.24(B), enumerates
the actions the state DJFS may undertake. Pursuant to that section, the Director may, inter alia:
(1) “[r]equire the responsible county grantee to comply with a corrective action plan pursuant to a
7
During the ratification debates, James Madison delivered the only speech in defense of the Elections Clause,
in which he defended the necessity of the Clause’s sweeping language: “The necessity of a Genl. Govt. supposes that
the State Legislatures will sometimes fail or refuse to consult the common interest at the expense of their local
conveniency or prejudices. . . . These were words of great latitude. It was impossible to foresee all the abuses that might
be made of the discretionary power.” 2 T HE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 240 (Max Farrand ed.)
(1966).
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time schedule specified by the department”; (2) “[i]mpose an administrative sanction”; (3)
“[p]erform, or contract with a government or private entity for the entity to perform, the family
services duty until the department is satisfied that the responsible county grantee ensures that the duty
will be performed satisfactorily”; or (4) “[r]equest that the attorney general bring mandamus
proceedings to compel the responsible county grantee to take or cease the action.” Id. § 5101.24(C).
The Director’s attempt to distinguish these provisions fails. First, she contends that
§ 5101.24(B), which specifies“responsible county grantees,” should apply only to those programs
that are included in the grants to the counties. And because the NVRA is not a “grant,” this
enforcement provision does not apply to it. This is a strained reading of the statute. “County
grantee” includes “[a] board of county commissioners,” id. § 5101.21(A)(1)(a), which oversees each
local DJFS office and appoints the director of each county department, id. § 329.01. Ohio law
authorizes the Director to take action against a county grantee if “[a] requirement for the family
services duty established by the department or any of the following is not complied with: a federal
or state law, state plan for receipt of federal financial participation, grant agreement between the
department and a federal agency, or executive order issued by the governor.” Id. § 5101.24(B)(3)
(emphasis added). It does not require the federal law to be a grant, nor does it require the state to
enter into a written agreement with the county before enforcing the NVRA. If a county department
receiving food stamp grants does not provide voter registration services to food stamp applicants—as
expressly required by the NVRA as well as by Ohio Rev. Code Ann. § 5101.54(F)—the plain
language of the aforementioned enforcement provisions authorizes the Director to take a variety of
corrective actions to compel county compliance. Furthermore, the county offices do in fact receive
federal funding to distribute food stamps, Medicaid, welfare, and other federal aid. Thus, Ohio law
authorizes the Director to take corrective action against the local-run DJFS offices if the offices are
not in compliance with a family services duty, in violation of federal law.
Next, the Director contends that even if § 5101.24(B) applies, another subsection of that same
statute, § 3503.10(L), precludes the Director from exercising authority under any of these provisions.
Section 3503.10(L) states: “The [DJFS] . . . shall limit administration of the aspects of the voter
registration program for the department to the requirements prescribed by the secretary of state and
the requirements of this section and the [NVRA].” Id. “[R]equirements of this section” refers to the
statute designating the various NVRA obligations, including the distribution of voter registration
applications, the training of employees to administer the program, and the acceptance of applications.
Id. § 3503.10.
Contrary to what the district court found, this subsection does not eliminate the Director’s
power to enforce compliance with the NVRA, but in fact supports it. The plain language of
§ 3503.10(L) acknowledges the Director’s responsibility for ensuring adequate administration of the
NVRA at the county levels; it simply prevents her from imposing additional voter registration
requirements on DJFS offices beyond the requirements imposed by the Secretary, the Ohio
implementing statutes enacted by the legislature, or the NVRA itself. The fact that the Director may
not go beyond the requirements of the NVRA does not absolve her of the responsibility for meeting
the NVRA’s requirements. In other words, the Director may not require local DJFS offices to
distribute voter registration forms at the local gas station, for example, because to do so would go
beyond the requirements of Ohio’s implementing statute. See id. § 3503.10(D) (only requiring local
offices to distribute a voter registration form with each application for public assistance). But just
because the Director may not go beyond Ohio’s requirements does not mean she cannot hold local
offices accountable for “the requirements of [Ohio’s implementing statute].” Id. § 3503.10(L).
Because Ohio law authorizes the statewide DJFS (and thus the Director) to ensure compliance
with Section 7 of the NVRA, the Director relies on the following curious proposition: because local
authorities have the independent responsibility to comply with the NVRA, the Director should not
be held accountable. True, the Ohio General Assembly has tasked the county offices with
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implementing the NVRA; but, as previously explained, the General Assembly also tasked the
Director with the power to enforce any county transgressions of federal law. This is not an either-or
proposition. The fact that some states, like Ohio, delegate the administration of public assistance
programs to counties or municipalities should not mean that those states are free of all statutory
obligations. See New York, 255 F. Supp. 2d at 79 (“It would be plainly unreasonable to permit a
mandatorily designated State agency to shed its NVRA responsibilities because it has chosen to
delegate the rendering of its services to local municipal agencies.”); see also Henrietta D. v.
Bloomberg, 331 F.3d 261, 286 (2d Cir. 2003) (holding that New York could not avoid its obligations
under the Rehabilitation Act by delegating authority to localities to deliver federally funded services).
The federal food stamp program is instructive. Under that program, a designated state agency
must submit and comply with a plan of operation. 7 U.S.C. § 2020(d)-(e). Ohio participates in the
food stamp program, with the DJFS serving as its designated state agency. Ohio Rev. Code Ann.
§ 5101.54(A). For purposes of the food stamp program, the term “state agency” is defined as:
[T]he agency of State government, including the local offices thereof, which has the
responsibility for the administration of the federally aided public assistance programs
within such State, and in those States where such assistance programs are operated on
a decentralized basis, the term shall include the counterpart local agencies
administering such programs.
7 U.S.C. § 2012(n)(1). In Ohio, then, both the county and state DJFS offices have the collective
responsibility for complying with the food stamp program. Under the Director’s view of state
responsibilities, because the local and statewide DJFS are jointly responsible, the local offices have
an independent duty to ensure compliance.
The Fourth Circuit has explicitly rejected this logic. In Robertson, 972 F.2d at 533, the court
discussed, in the context of the Food Stamp Act, whether state agencies may avoid their federal
responsibilities through delegation. Applicants of the program sued the Commissioner of the
Virginia Department of Social Services after local administrative agencies failed to meet Food Stamp
Act application processing deadlines. Id. at 530. Although the Commissioner did not have the
authority under state law to supervise the local agencies, the Fourth Circuit rejected the
Commissioner’s defense: “A state that chooses to operate its program through local . . . agencies
cannot thereby diminish the obligation to which the state, as a state, has committed itself, namely,
compliance with federal requirements.” Id. at 534. The court concluded that “the fact that the
Commissioner may be unable to bring the entire Virginia system into full compliance, such that
impossibility may well be a defense to contempt, does not, of itself, preclude issuance of an
injunction mandating that the Commissioner try vigorously to compel compliance with federal
statutes and regulations governing the food stamp program.” Id. at 535; see also Woods, 724 F.2d
at 1447 (“While the state may choose to delegate some administrative responsibilities [under the
Food Stamp Act], ‘the ultimate responsibility for operation of the plan remain[s] with the state.’”)
(quoting California v. Block, 663 F.2d 855, 858 (9th Cir. 1981)) (internal citations omitted); Reynolds
v. Giuliani, 118 F. Supp. 2d 352, 386 (S.D.N.Y. 2000) (“[I]mplicit in the State’s obligations to
administer the Food Stamp Act, Medicaid Act, and cash assistance programs is a duty to oversee the
City defendants’ administration of the programs to ensure compliance with federal law.”).
The Director’s attempt to distinguish the Food Stamp Act fails. The Director claims that,
unlike the NVRA, the Food Stamp Act holds the Commissioner fully responsible for ensuring
compliance. Under the Food Stamp Act, the Director of the DJFS signs a “Federal/State Agreement”
on behalf of the governor, which is the “legal agreement between the State and the [USDA],” 7
C.F.R. § 272.2(a)(2), in which the state undertakes to “[a]dminister the program in accordance with
the provisions contained in the Food Stamp Act of 1977, as amended, and in the manner prescribed
by regulations issued pursuant to the Act.” Id. § 272.2(b). However, the same could be said for the
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NVRA. Federal regulations mandate that the “single state agency” for various federal public
assistance programs “must distribute voter information and registration materials as specified in the
NVRA.” 45 C.F.R. § 205.50(a)(4)(iv). In Ohio, that “single state agency” is the DJFS. Ohio Rev.
Code Ann. § 5101.80(B) (“The [DJFS] shall act as the single state agency to administer and supervise
the administration of Title IV-A programs.”). And as already discussed, Ohio law also makes the
statewide DJFS, and thus the Director, responsible for supervising the distribution of voter
registration materials by local DJFS offices.
Accordingly, the Director is a proper party to this suit.
C. Remaining Issues
Two issues remain. First, the district court found that ACORN did not have standing to bring
this lawsuit, either on its own behalf or on behalf of its members. Harkless, 467 F. Supp. 2d at 759-
61. Second, the district court denied the plaintiffs’ motion to amend their complaint. We address
only the district court’s denial of the motion to amend. According to the plaintiffs, the proposed
amended complaint cured the purported shortcomings in the initial complaint by (1) explicitly
alleging that plaintiffs were injured by the Secretary’s failure to comply with the obligations that she
admitted were prescribed by the NVRA itself; (2) adding factual allegations about the Director’s
practices concerning supervisory activities over the local DJFS offices concerning NVRA duties; and
(3) explicitly alleging that ACORN would not have expended funds on voter registration activities
outside DJFS offices but for defendants’ NVRA violations (which demonstrates an injury in fact and
gives rise to individual standing in its own right), and that ACORN has members who have been
injured by defendants’ NVRA violations (which gives rise to associational standing). See Sandusky
County Democratic Party v. Blackwell, 387 F.3d 565, 573-74 (6th Cir. 2004). The district court
declined to incorporate these amended allegations, presumably because it had already found that the
defendants were not proper parties to the suit. However, because the district court erred in that
regard, it should have permitted the plaintiffs’ motion to amend, which has the effect of curing any
purported deficiency in ACORN’s argument in favor of standing.
IV. CONCLUSION
Because the defendants are proper parties to this lawsuit, we REVERSE and REMAND to
the district court for proceedings consistent with this opinion.