           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                   2    Bell, et al. v. Marinko, et al.              No. 02-4370
        ELECTRONIC CITATION: 2004 FED App. 0122P (6th Cir.)
                    File Name: 04a0122p.06                                               _________________
                                                                                              COUNSEL
UNITED STATES COURT OF APPEALS
                                                                     ARGUED:           Jack Gregg Haught, BENESCH,
                  FOR THE SIXTH CIRCUIT                              FRIEDLANDER, COPLAN & ARONOFF, Columbus, Ohio,
                    _________________                                for Appellants.      Terry Griffith, OFFICE OF THE
                                                                     PROSECUTING ATTORNEY FOR THE COUNTY OF
 JOSEPH A. BELL, et al.,             X                               ERIE, CIVIL DIVISION, Sandusky, Ohio, Arthur James
            Plaintiffs-Appellants, -                                 Marziale, Jr., OFFICE OF THE ATTORNEY GENERAL OF
                                      -                              OHIO, Columbus, Ohio, for Appellees. ON BRIEF: Jack
                                      -  No. 02-4370                 Gregg Haught, Mark D. Tucker, BENESCH,
               v.                     -                              FRIEDLANDER, COPLAN & ARONOFF, Columbus, Ohio,
                                       >                             for Appellants. Terry Griffith, Gary A. Lickfelt, OFFICE OF
                                      ,                              THE PROSECUTING ATTORNEY, Sandusky, Ohio, Arthur
 CHRISTOPHER M. MARINKO ,             -
 et al.,                                                             James Marziale, Jr., Elizabeth L. Schuster, OFFICE OF THE
                                      -                              ATTORNEY GENERAL OF OHIO, Columbus, Ohio, Joan
           Defendants-Appellees. -                                   C. Szuberla, Teresa L. Grigsby, SPENGLER NATHANSON,
                                      -                              Toledo, Ohio, for Appellees.
                                     N
         Appeal from the United States District Court                                    _________________
          for the Northern District of Ohio at Toledo.
         No. 02-07204—James G. Carr, District Judge.                                         OPINION
                                                                                         _________________
                    Argued: March 12, 2004
                                                                       BOYCE F. MARTIN, JR., Circuit Judge. Joseph Bell and
              Decided and Filed: April 28, 2004                      six other registered voters of the Kelley’s Island voting
                                                                     precinct in Erie County, Ohio, whose qualifications to be
Before: MARTIN, CLAY, and CUDAHY, Circuit Judges.*                   registered in that precinct were challenged, appeal the district
                                                                     court’s grant of summary judgment. We are asked to decide
                                                                     whether procedures of the Ohio Board of Elections
                                                                     contravene the National Voter Registration Act, 42 U.S.C.
                                                                     § 1973gg-6 (1993), or violate the equal protection clause of
                                                                     the Fourteenth Amendment to the United States Constitution.
                                                                     Because the Board’s procedures are lawful under both
                                                                     provisions, we affirm.
    *
     The Honorable Richard D. Cudahy, Senior Circuit Judge of the
United States Court of Appeals for the Seventh Circuit, sitting by
designation.

                                1
No. 02-4370                     Bell, et al. v. Marinko, et al.          3    4       Bell, et al. v. Marinko, et al.                     No. 02-4370

                                    I                                           Subsequently, the Board held hearings on the challenges to
                                                                              the appellants’ respective registrations. The hearings were
   In February of 2002, certain residents of Kelley’s Island,                 devoted to investigating each appellant’s residence, which
Erie County, Ohio, filed challenges to the registrations of                   section 3501.11 of the Ohio Revised Code directs the Board
nearly one hundred voters pursuant to section 3509.19 of the                  to examine. For that purpose, the hearings elicited such
Ohio Revised Code, which allows registered voters to                          information as each appellant’s driver’s license address,
challenge the right of any person to vote. Among the                          employment history, time spent on Kelley’s Island, and,
challenged registrants were appellants Joseph Bell, Frederic                  except for Bell, the residence and voting precinct of each
Walcott, Keith Haig, Timothy Ahner, Kim Fresch, and Paul                      appellant’s spouse. Based on the information provided at the
and Victoria Finnegan. Challenges to their registrations                      hearings, the Board denied the challenge to Bell’s
alleged that appellants were seasonal, rather than permanent,                 registration. The Board was unable to come to a majority
residents of Kelley’s Island, and were therefore not qualified                decision with regard to the Finnegans and so referred the
to vote in the Kelley’s Island precinct.                                      challenge to the Secretary of State, who sustained the
                                                                              challenge to the Finnegans’ registrations. With regard to the
   Joseph Bell and the six other appellants instituted an action              remaining appellants, the Board concluded that there was
in district court seeking to enjoin the Board from considering                sufficient evidence to find that appellants’ residences were
the challenges. The complaint alleged that sections 3509.19-                  not on Kelley’s Island, and the Board sustained the challenges
3509.21 of the Ohio Revised Code, which authorize the                         to their registrations.2 Also, the record shows that section
challenge hearings, are unlawful under the National Voter
Registration Act, and that section 3503.02(D) of the Code--
which states that “[t]he place where the family of a married                      2
man or woman resides shall be considered to be his or her                           In addition to other factors, the Board determined residence
place of residence”--violates the equal protection clause.1 In                qualifications based on the following evidence:
                                                                                   W alcott moved to the Island in 1995 after he re tired, but retained his
a partial judgment, the district court denied the request to                  mainland Huron Township home. He has worked part-time for Island
enjoin the Board as to the six appellants, but issued an order                employers, and he estimates that he spends two hundred days a year on
restraining the Board from considering, as evidence of Bell’s                 the Island. His car is registered in the Huron To wnship , and his driver’s
residence, statements that Bell’s wife resides and votes in a                 license lists his Huron Township add ress, where he also receives all of his
precinct other than Kelley’s Island. The district court found                 mail. He and his wife spend time in the winter in Florida.
                                                                                   Haig lives on the Island about one hundred fifty days each year,
that such consideration may violate the equal protection                      including the summer. Otherwise, he lives with his family and teache s in
clause.                                                                       Bowling Green, W ood County, Ohio. Haig and his wife file joint tax
                                                                              returns from B owling Green, and his driver’s license bears his Bowling
                                                                              Green addre ss.
    1
                                                                                   Ahner spends about eighty percent of his time in the summer and
     Spe cifically, appellants argued, as they do here, that sections         seventy percent in the winter at his mainland Sa ndusky, Ohio, addre ss.
3509.19-3509.21 are unlawful to the extent that they allow the Board to:      He receives his mail there and his driver’s license bears his Sandusky
    1) hold hearings regarding the residence of registered voters, which      address.
        the B oard is authorized to do under section 3501.1 1,                     The Finnegans live on Kelley’s Island one hundred ninety-four d ays
    2) compel the attendance and sworn testimony of registered vo ters,       each year; otherwise, they live in Columbus, Franklin County, Ohio.
    3) cancel a voter’s registration if the voter refuses to answer certain   Their driver’s licenses list the Columbus address and they both work for
        questions regarding the voter’s residence, and                        the Franklin County school system.
    4) deny voters the right to vote in an election for federal office.            Fresch owns a house in Sandusky, and he works throughout Ohio, but
No. 02-4370                      Bell, et al. v. Marinko, et al.          5    6      Bell, et al. v. Marinko, et al.            No. 02-4370

3503.02(D) did not play a determinative role in the Board’s                    Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Nat’l Satellite
collective decisionmaking. 3                                                   Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001).
  All seven appellants filed claims in district court for                          B. National Voter Registration Act
injunctive relief, arguing, among other things, that the
Board’s procedures violate the National Voter Registration                           1. Ohio Voter Removal Procedures §§3505.19-3505.21
Act and the equal protection clause. The district court
dismissed Bell’s claims as moot because the Board had                            Appellants argue that the National Voter Registration Act
denied the challenge to his eligibility. With regard to the six                sets forth the exclusive reasons for which a state may remove
remaining appellants, the district court granted summary                       a voter from a voting precinct’s list of registered voters.
judgment in favor of the Board, concluding that its procedures                 Appellants claim that the Board, when it considered
do not violate either provision. In this timely appeal,                        challenges pursuant to sections 3505.19-3505.21 of the Ohio
appellants assert the same claims.                                             Revised Code, failed to justify the removal of appellants
                                                                               according to those reasons, and therefore violated the Act.
                                    II                                         This argument requires analysis of the effect of the Act on
                                                                               state voter registration processes, as well as its intended
  A. Standard of Review                                                        purpose with regard to voter removal.
   We review a district court’s award of summary judgment de                      We considered the application of the National Voter
novo. Shah v. Deaconess Hosp., 355 F.3d 496, 498 (6th Cir.                     Registration Act in Association of Community Organizations
2004). Summary judgment is appropriate “if the pleadings,                      for Reform Now (ACORN) v. Miller, 129 F.3d 833 (6th Cir.
depositions, answers to interrogatories, and admissions on                     1997). There, we stated that the right to vote has long been
file, together with the affidavits, if any, show that there is no              recognized as central to the protection and exercise of the
genuine issue as to any material fact and that the moving                      other rights guaranteed in our society. Id. at 835.
party is entitled to a judgment as a matter of law.” Id. at 498.               Nevertheless, many practical barriers remain that may inhibit
In viewing the evidence, we draw all reasonable inferences in                  the free exercise of this right. Among such barriers are
favor of the appellants, as non-moving parties. Anderson v.                    restrictive or prohibitively inconvenient voter registration
                                                                               requirements that may discourage or prevent qualified voters
                                                                               from registering and participating in elections. In Miller, we
                                                                               found that the National Voter Registration Act is Congress’s
not on Kelley’s Island. His driver’s license lists his Sandusky ad dress,      attempt to reinforce the right of qualified citizens to vote by
and he receives his mail there.                                                reducing the restrictive nature of voter registration
    3                                                                          requirements and by setting limits on the removal of
      In making these decisions, more than one Bo ard m emb er exp ressly      registrants from the voter registration rolls. Id.
denied reliance on or consideration of the residence and voting precinct
of each app ellant’s spouse. W hile one B oard mem ber d id state his intent
to consider section 3 503 .02(D) in determining W alcott’s eligibility,
                                                                                  Section 1973gg-6(a)(3) of the Act provides that the name
another mem ber expressly declined to rely on the statute. A lso, in           of a registrant “may not be removed from the official list of
determining Haig’s eligibility, Board member Christopher M arinko              eligible voters except” when the registrant requests such
expressly disclaimed any consideration of section 3 503 .02(D). In general,    removal, when the registrant has been convicted of a crime,
the B oard did no t rely conclusively o n section 3503.0 2(D ).
No. 02-4370                 Bell, et al. v. Marinko, et al.     7    8     Bell, et al. v. Marinko, et al.                No. 02-4370

or when he or she is mentally incapacitated. Also, section           that accurate and current voter registration rolls are
1973gg-6(a)(4) allows for removal pursuant to a state                maintained.”).
program or activity “that makes a reasonable effort” to
remove ineligible voters by reason of death or change of               Were we to find that the Board’s removal of these voters
residence. Appellants argue that because none of these has           does violate the Act, we would effectively grant, and then
occurred, their names may not be removed. We disagree.               protect, the franchise of persons not eligible to vote. Because
                                                                     the Act does not bar the Board’s continuing consideration of
   In creating a list of justifications for removal, Congress did    a voter’s residence, and instead encourages the Board to
not intend to bar the removal of names from the official list of     maintain accurate and reliable voting rolls, we find that the
persons who were ineligible and improperly registered to vote        Board’s procedures in this case do not contravene the
in the first place. The National Voter Registration Act              National Voter Registration Act.
protects only “eligible” voters from unauthorized removal.
See 42 U.S.C. §1973gg-6(a)(1) (seeking to “ensure that any                2. Ohio Revised Code § 3503.02(D)
eligible applicant is registered to vote in an election”); ID . at
§1973gg-6(a)(3) (providing that “the name of a registrant may          Section 3503.02(D) of the Ohio Revised Code states that
not be removed from the official list of eligible voters except”     the place where the family of a married man or woman
under specific circumstances) (emphases added). Eligible             resides shall be considered to be his or her place of residence.
voters, at a minimum, are those who qualify as bona fide             Appellants argue that this section violates the National Voter
residents of the precinct in which they are registered or wish       Registration Act’s requirement under section 1973gg-6(b)(1)
to register to vote. See, e. g., Dunn v. Blumstein, 405 U.S.         that state programs to protect the integrity of the electoral
330, 343-44 (1972); Evans v. Cornman, 398 U.S. 419, 422              process, such as hearings on challenges to a voter’s
(1970); Kramer v. Union Free Sch. Dist., 395 U.S. 621, 625           registration, “shall” be “uniform” and “nondiscriminatory.”
(1969); Carrington v. Rash, 380 U.S. 89, 91 (1965).                  Specifically, appellants argue that consideration of the
Residence, as defined in section 3503.02(a) of the Ohio              residence and voting precinct of a voter’s spouse, when such
Revised Code, is that place “in which the person's habitation        consideration would not be made with respect to a nonmarried
is fixed and to which, whenever the person is absent, the            or separated voter, is nonuniform and discriminatory, and
person has the intention of returning.”                              therefore in violation of the Act. Again, we disagree.

  In this case, the Board investigated and examined the                 Ohio is free to take reasonable steps, as have other states,
residence of each appellant through challenge hearings.              to see that all applicants for registration to vote actually fulfill
Based on those examinations, the Board concluded that                the requirement of bona fide residence. See, e. g., Dunn, 405
appellants were not residents of Kelley’s Island and were            U.S. at 343-44; Evans, 398 U.S. at 422; Kramer, 395 U.S. at
therefore ineligible to vote in the Kelley’s Island precinct.        625; Carrington, 380 U.S. at 91. Bona fide residence may be
They were improperly registered in the first place, and as a         determined not only by an intention to reside at a fixed place,
result, the voting rolls were inaccurate. As instructed by the       but also factors that express such an intent. See Holt Civic
National Voter Registration Act, the Board necessarily               Club v. City of Tuscaloosa, 439 U.S. 60, 68 (1978). We find
removed their names from the rolls. See 42 U.S.C. §§1973gg-          that these factors include the residence and voting precinct of
6(a)(3)-(4) (“The purposes of this subchapter are . . . (3) to       a voter’s spouse. To that end, consideration of the residence
protect the integrity of the electoral process, and (4) to ensure    of a voter’s spouse in determining the voter’s residence is
No. 02-4370                Bell, et al. v. Marinko, et al.    9    10   Bell, et al. v. Marinko, et al.            No. 02-4370

relevant and appropriate. Therefore, section 3503.02(D) does       violation of the Fourteenth Amendment.” Id. Other courts
not contravene the National Voter Registration Act.                have subsequently noted that “[t]he determining factor [in
                                                                   Carrington] was the conclusiveness of the presumption.” See
  C. Equal Protection Clause                                       Whatley v. Clark, 482 F.2d 1230, 1234 (5th Cir. 1973); see
                                                                   also Kelm, 473 F.2d at 1270.
   Similarly, appellants argue that section 3503.02(D) requires
the Board to treat married voters differently than nonmarried         This Court has also considered the irrebuttable presumption
voters, and therefore violates the equal protection clause. As     as applied to the determination of residence. In Kelm, we
stated, we find that such consideration, among other factors,      struck down an Ohio statute that required graduate students to
is relevant and appropriate in determining the residence of a      have taken a job in Ohio prior to enrolling in graduate school
challenged voter. For purposes of equal protection, we now         in order to gain Ohio residency and pay the in-state tuition
apply the rule that, absent an irrebuttable presumption that a     fee. 473 F.2d at 1270. We found that the condition acted as
voter’s residence is that place where the voter’s spouse           an impassable barrier to many students who in good faith
resides, such consideration does not violate the equal             intend to and, for all other purposes, have succeeded in
protection clause. See Carrington, 380 U.S. at 91; Kelm v.         establishing residency in Ohio, and therefore violated the
Carlson, 473 F.2d 1267, 1270 (6th Cir. 1973).                      equal protection clause. Id.
  The plain language of section 3503.02(D)—the place where           Following this guidance, we must determine whether the
the family of a married voter resides “shall” be considered the    challenged provision raises an irrebuttable presumption.
voter’s residence—arguably creates some presumption of             Although the record shows that the Board did accept into
residence. We therefore look for guidance to decisions from        evidence the residence and voting precinct of each appellant’s
the Supreme Court and our Court with regard to presumptions        spouse, it also shows, as indicated above, that no appellant
and equal protection.                                              was irrebuttably presumed to reside at the residence of his or
                                                                   her spouse. Indeed, other evidence was presented and
  The rule that an irrebuttable presumption may not be             expressly relied upon by the majority of Board members.
utilized to classify a person as a non-resident was applied in     Because the Board did not raise an irrebutable presumption in
Carrington, in which the Supreme Court invalidated a section       applying section 3502.02(D), we find that appellants have
of the Texas Constitution that prohibited a member of the          suffered no equal protection violation.
armed forces who first established his home in Texas during
the course of his military service from satisfying the residence                                III.
qualifications for a voter so long as he remained a member of
the armed forces. Id. at 91-92. The Court stated: “‘The              For the foregoing reasons, we AFFIRM the judgment of the
presumption here created is definitely conclusive--incapable       district court.
of being overcome by proof of the most positive character.’”
Id. at 96 (quoting Heiner v. Donnan, 285 U.S. 312, 324
(1932)). The Court held that by prohibiting all servicemen
not residents of Texas before induction to the armed services
“ever to controvert the presumption of nonresidence, the
Texas Constitution imposes an invidious discrimination in
