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Rangel-Lopez v. Cox

United States District Court, D. Kansas

November 1, 2018

DEBORAH COX, FORD COUNTY CLERK, in her official capacity, Defendant.



         Plaintiffs Alejandro Rangel-Lopez and League of United Latin American Citizens, Kansas, filed this lawsuit against Deborah Cox, Ford County Clerk, asserting that Ms. Cox's decision to move Dodge City, Kansas's only polling location from the Civic Center to the Western Bank Expo Center (located about one mile outside the city limits) imposes a substantial burden on all voters and thus violates their rights under the First and Fourteenth Amendments.[1] When filing their Complaint, plaintiffs also filed a Motion for Temporary Restraining Order. Doc. 4. Plaintiffs' motion seeks a temporary restraining order mandating defendant to: (1) reopen the polling location at the Civic Center in Dodge City, Kansas, or in a building within the city limits; and (2) notify all registered voters via mail that they can vote either at the Expo Center or the new location. Id. at 3. At the motion hearing on November 1, 2018, plaintiffs refined their request, explaining that it asks the court either to enjoin defendant to: (1) open two polling locations on Election Day-one at the Civic Center and another one at the Expo Center; or (2) move all voting to a single polling location at the Civic Center. For reasons explained below, the court denies plaintiffs' motion.

         I. Factual Background

         For the last 20 years, the Civic Center has served as the only polling location in Dodge City, Kansas. On September 11, 2018, Ford County Clerk Deborah Cox-the County's chief election officer-unilaterally decided to move the polling location after learning that the city was planning construction in the vicinity of the Civic Center. Ms. Cox determined that the Western Bank Expo Center (“Expo Center”) was the best available location for a temporary polling site because it is owned by Ford County, meets the requirements of the Americans with Disabilities Act, and is large enough to accommodate the heavy voting traffic expected on Election Day. The Expo Center is located about a half mile outside Dodge City's city limits. It's about 3.7 miles from the Civic Center and about 1.2 miles from the nearest stop on public transportation.

         On September 28, 2018, Ms. Cox mailed notices to registered voters advising them of the polling location change from the Civic Center to the Expo Center. Her notice conceded that the Expo Center is “not a convenient location” but it “is one that will meet the ADA requirements and is large enough to hold an election of this size.” Def.'s Ex. 5. Also, the notice provided registered voters with information about their other options to vote, i.e., by advance voting or mail-in ballot.

         After Ms. Cox mailed this notice, she learned that some voters were confused about the correct polling location based on the Notice of Disposition/Certificate of Registration that some 294 newly registered voters had received. That Notice identified the “regular” polling place for these voters as the Civic Center. See Pls.' Ex. 6. But it did not provide information explaining that the County had moved the polling location temporarily to the Expo Center for the November 6, 2018, election. Ms. Cox explained that once she realized this error, she mailed correspondence to these 294 voters notifying them of the temporary relocation of their polling location to the Expo Center. She also posted a notice about the relocation on Ford County's official website. Def.'s Ex. 11.

         Plaintiffs assert that defendant's decision to move the polling location from the Civic Center to the Expo Center-a single polling center located outside of town-imposes a substantial burden on all voters in Dodge City because the location is inconvenient and the temporary location change has caused voter confusion. And specifically, plaintiffs contend that moving the polling location to the Civic Center will have a disproportionate impact on Hispanic[2]voters because: (1) they are less likely to be able to use transportation to get to the new polling location; and (2) they lack flexible work schedules to accommodate travel to the Expo Center location.

         At the hearing, Ms. Cox testified that the City of Dodge City is providing free public transportation to voters. She identified various notices and press releases-printed in both English and Spanish-that the City has published in local newspapers and on its website. They provide information about free door-to-door transportation to and from the Expo Center polling location on Election Day along with a number to call to schedule a ride. Def.'s Exs. 6, 8, 9. And, as recently as October 29, 2018, the City issued a press release-in both English and Spanish-announcing, among other things, that the City was offering free rides from a voter's home to the polls on Election Day. Def.'s Ex. 10. The notice also explained that free rides were available to citizens who wished to participate in advance voting.

         Five days after Ms. Cox announced the decision to move the polling location to the Expo Center, the American Civil Liberties Union of Kansas (“ACLU”) sent a letter to Ms. Cox dated October 3, 2018. Pls.' Ex. 7. The letter thanked Ms. Cox for agreeing to speak with the ACLU on October 5, and it identified some concerns raised by Ford County constituents about the County's current polling practices. Id. Ms. Cox later cancelled the October 5 phone call because, she testified, she was pulled into another meeting and didn't have time to reschedule the call. On October 16, 2018, the ACLU sent another letter to Ms. Cox expressing that it was “troubled by [her] decision to cancel [their] telephone call scheduled for October 5, 2018 and [her] subsequent unwillingness to set up another time to speak to [the ACLU].” Pls.' Ex. 8.

         On October 19, 2018, the ACLU sent another letter to Ms. Cox. Def.'s Ex. 12 at 2-3. This letter advised that the ACLU and the Kansas Coalition for Citizen Participation would provide assistance to voters through a non-partisan, election protection program for the 2018 general election. Id. The letter encouraged Ms. Cox to refer voters to the program's hotline if they need voter assistance. Id. Also, the letter expressed the ACLU's hope that it could contact Ms. Cox or a member of her staff on Election Day if they had questions or reports to share with her office. Id.

         On Monday, October 22, 2018, Ms. Cox emailed the ACLU's letter to Bryan Caskey, the State Director of Elections, who works in the Kansas Secretary of State's Office.[3] The text of Ms. Cox's email recites: “This is what I got today in the mail from the ACLU. LOL.” Id. at 1. Ms. Cox testified that “LOL” means laugh out loud. Also, she explained that she had experienced problems with the ACLU's volunteer program at the primary elections in August 2018. According to Ms. Cox, she observed the volunteers talking to provisional voters as they left the polling place. When she told the ACLU's volunteers to stop interacting with voters, they refused and-according to Ms. Cox-became combative. Thus, Ms. Cox explained, her “LOL” in her email to Mr. Caskey referred to her earlier challenges with the ACLU's volunteer program.

         On cross-examination, Ms. Cox denied the proposition that she hadn't taken the ACLU's request seriously. But she appeared to read that letter as one asking her to post information on Ford County's website. The letter never makes such a request. And, Ms. Cox testified, she couldn't allow the ACLU to post information on the County's website because then the County would have to allow other groups to do the same. Ms. Cox conceded that she never explained her position to the ACLU. And she admits she hasn't responded to the ACLU's October 19 letter.

         At the hearing's conclusion, the court asked Ms. Cox whether, on Election Day, she planned to place signage at the Civic Center to notify voters that the Civic Center is not an open polling location for the November 6 election. Ms. Cox represented to the court that she intends to post signage at the Civic Center that will notify any voters who appear there-mistakenly believing that the Civic Center is their assigned polling location-that the temporary polling location is located at the Expo Center.

         Ms. Cox's counsel also argued that Ms. Cox plans to have transportation available at the Civic Center on Election Day to take voters from the Civic Center to the open polling location at the Expo Center. But when the court pressed Ms. Cox for more information about this transportation effort, she conceded that she had called the City just that morning to ask about making transportation available for voters who mistakenly come to the Civic Center and need transportation to the Expo Center. The City, Ms. Cox also reported, said ...

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