In Red Wine & Blue v. LaRose, the Center for Election Confidence (CEC), joined by the Honest Elections Project (HEP), filed an amicus brief urging the U.S. Court of Appeals for the Sixth Circuit to stay a preliminary injunction preventing Ohio from enforcing House Bill 54’s documentary proof-of-citizenship requirement in the State’s Bureau of Motor Vehicles process. The National Voter Registration Act (NVRA) requires states to offer voter registration to eligible individuals at the same time they apply for a driver license or state ID. The brief supports Ohio Secretary of State Frank LaRose’s emergency motion for a stay pending appeal, arguing both that the district court lacked jurisdiction because the plaintiffs’ claims became moot and that the court misread Section 5 of the NVRA to displace Ohio’s authority to determine and enforce voter qualifications.
CEC and partner HEP first argue that the case no longer presents a live controversy. Red Wine & Blue relied on two identified members to establish associational standing, each of whom alleged that H.B. 54 would require her to present proof of citizenship while obtaining or updating an Ohio driver’s license and registering to vote. After the lawsuit was filed, however, both women obtained Ohio driver’s licenses and registered or updated their voter registrations. Because H.B. 54 exempts individuals who have previously presented citizenship proof to the BMV, the brief argues that neither member will be subject to the challenged requirement again. As CEC explains, “The preliminary injunction rests on a jurisdictional foundation that disappeared, rendering the case moot.”
The brief also challenges the district court’s reliance on the “capable of repetition yet evading review” exception to mootness. The district court reasoned that although the two identified members would not face H.B. 54 again, some future Ohio resident could. CEC argues that Article III requires more: the same complaining party must reasonably be expected to face the challenged action again. The brief emphasizes that Red Wine & Blue itself is not regulated by H.B. 54, its two identified members are no longer subject to the requirement, and the organization has not identified another member who is likely to encounter it. In the view of CEC and HEP, the possibility that an unidentified future voter may be affected cannot preserve federal jurisdiction over an otherwise moot dispute.
CEC and HEP next argue that Ohio is likely to succeed on the merits because H.B. 54 falls within the State’s constitutional authority over voter qualifications. The brief states that “[t]he Constitution gives States exclusive authority to set and enforce voter qualifications,” pointing to the Electors Clause for presidential elections and the Qualifications Clause and Seventeenth Amendment for congressional elections. Relying on Arizona v. Inter Tribal Council of Arizona, 570 U.S. 1 (2013), CEC and HEP further argue that Congress’s Elections Clause authority extends to the “Times, Places and Manner of holding” congressional elections, but not to prescribing who is qualified to vote. From that premise, the brief contends that Section 5 of the NVRA should not be read to prevent Ohio from obtaining information it considers necessary to enforce citizenship as a voter qualification through its own driver’s-license process.
The brief therefore disputes the district court’s conclusion that NVRA Section 5 preempts H.B. 54. Section 5 requires a State’s driver’s-license application to serve as an application for voter registration and limits the voter-registration portion of that process to the minimum information necessary to assess eligibility. CEC argues that interpreting those provisions to bar Ohio’s citizenship-documentation requirement would raise serious constitutional concerns. The brief distinguishes Inter Tribal, arguing that decision did not prevent States from establishing or enforcing voter qualifications and recognized that States may use information already in their possession to determine that an applicant is ineligible.
The organizations also invoke the federalism canon, which requires Congress to speak with unmistakable clarity before displacing traditional state authority. The brief argues that Inter Tribal’s treatment of the federal voter-registration form does not resolve the different question presented here because Ohio’s driver’s-license form is a State form and is outside the Election Assistance Commission’s authority. “No unmistakably clear statement shows Congress intended Section 5 to preempt States’ qualifications authority,” the brief concludes. CEC and HEP therefore ask the Sixth Circuit to construe Section 5 narrowly rather than to read the NVRA to prevent States from obtaining information needed to enforce voter qualifications through their own motor-vehicle systems.
CEC and the Honest Elections Project urge the Sixth Circuit to stay the district court’s preliminary injunction while Ohio’s appeal proceeds. The brief maintains that the State is likely to succeed both because the underlying controversy became moot and because the district court’s preemption ruling intrudes on Ohio’s constitutional authority over voter qualifications.
The Center for Election Confidence thanks Jason Torchinsky, Elizabeth Price Foley, and Steve LaRussa of Holtzman Vogel for their representation in this matter.