Rule 206 ELECTRONIC CITATION: 2004 FED App. 0122P (6th Cir.) File Name: 04a0122p.06… v. Christopher M. Marinko

*The Honorable Richard D. Cudahy, Senior Circuit Judge of the
United States Court of Appeals for the Seventh Circuit, sitting by
designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0122P (6th Cir.)
File Name: 04a0122p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
JOSEPH A. BELL, et al.,
Plaintiffs-Appellants,
v.
CHRISTOPHER M. MARINKO,
et al.,
Defendants-Appellees.
X
-
-
-
->
,
-
-
-
-
N
No. 02-4370
Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 02-07204—James G. Carr, District Judge.
Argued: March 12, 2004
Decided and Filed: April 28, 2004
Before: MARTIN, CLAY, and CUDAHY, Circuit Judges.*
2 Bell, et al. v. Marinko, et al. No. 02-4370
_________________
COUNSEL
ARGUED: Jack Gregg Haught, BENESCH,
FRIEDLANDER, COPLAN & ARONOFF, Columbus, Ohio,
for Appellants. Terry Griffith, OFFICE OF THE
PROSECUTING ATTORNEY FOR THE COUNTY OF
ERIE, CIVIL DIVISION, Sandusky, Ohio, Arthur James
Marziale, Jr., OFFICE OF THE ATTORNEY GENERAL OF
OHIO, Columbus, Ohio, for Appellees. ON BRIEF: Jack
Gregg Haught, Mark D. Tucker, BENESCH,
FRIEDLANDER, COPLAN & ARONOFF, Columbus, Ohio,
for Appellants. Terry Griffith, Gary A. Lickfelt, OFFICE OF
THE PROSECUTING ATTORNEY, Sandusky, Ohio, Arthur
James Marziale, Jr., Elizabeth L. Schuster, OFFICE OF THE
ATTORNEY GENERAL OF OHIO, Columbus, Ohio, Joan
C. Szuberla, Teresa L. Grigsby, SPENGLER NATHANSON,
Toledo, Ohio, for Appellees.
_________________
OPINION
_________________
BOYCE F. MARTIN, JR., Circuit Judge. Joseph Bell and
six other registered voters of the Kelley’s Island voting
precinct in Erie County, Ohio, whose qualifications to be
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.

-- 1 of 5 --

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

-- 2 of 5 --

No. 02-4370 Bell, et al. v. Marinko, et al. 5
not on Kelley’s Island. His driver’s license lists his Sandusky ad dress,
and he receives his mail there.
3In making these decisions, more than one Bo ard m emb er exp ressly
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,
another mem ber expressly declined to rely on the statute. A lso, in
determining Haig’s eligibility, Board member Christopher M arinko
expressly disclaimed any consideration of section 3 503 .02(D). In general,
the Board did no t rely conclusively o n section 3503.0 2(D ).
3503.02(D) did not play a determinative role in the Board’s
collective decisionmaking.3
All seven appellants filed claims in district court for
injunctive relief, arguing, among other things, that the
Board’s procedures violate the National Voter Registration
Act and the equal protection clause. The district court
dismissed Bell’s claims as moot because the Board had
denied the challenge to his eligibility. With regard to the six
remaining appellants, the district court granted summary
judgment in favor of the Board, concluding that its procedures
do not violate either provision. In this timely appeal,
appellants assert the same claims.
II
A. Standard of Review
We review a district court’s award of summary judgment de
novo. Shah v. Deaconess Hosp., 355 F.3d 496, 498 (6th Cir.
2004). Summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Id. at 498.
In viewing the evidence, we draw all reasonable inferences in
favor of the appellants, as non-moving parties. Anderson v.
6 Bell, et al. v. Marinko, et al. No. 02-4370
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Nat’l Satellite
Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001).
B. National Voter Registration Act
1. Ohio Voter Removal Procedures §§3505.19-3505.21
Appellants argue that the National Voter Registration Act
sets forth the exclusive reasons for which a state may remove
a voter from a voting precinct’s list of registered voters.
Appellants claim that the Board, when it considered
challenges pursuant to sections 3505.19-3505.21 of the Ohio
Revised Code, failed to justify the removal of appellants
according to those reasons, and therefore violated the Act.
This argument requires analysis of the effect of the Act on
state voter registration processes, as well as its intended
purpose with regard to voter removal.
We considered the application of the National Voter
Registration Act in Association of Community Organizations
for Reform Now (ACORN) v. Miller, 129 F.3d 833 (6th Cir.
1997). There, we stated that the right to vote has long been
recognized as central to the protection and exercise of the
other rights guaranteed in our society. Id. at 835.
Nevertheless, many practical barriers remain that may inhibit
the free exercise of this right. Among such barriers are
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
attempt to reinforce the right of qualified citizens to vote by
reducing the restrictive nature of voter registration
requirements and by setting limits on the removal of
registrants from the voter registration rolls. Id.
Section 1973gg-6(a)(3) of the Act provides that the name
of a registrant “may not be removed from the official list of
eligible voters except” when the registrant requests such
removal, when the registrant has been convicted of a crime,

-- 3 of 5 --

No. 02-4370 Bell, et al. v. Marinko, et al. 7
or when he or she is mentally incapacitated. Also, section
1973gg-6(a)(4) allows for removal pursuant to a state
program or activity “that makes a reasonable effort” to
remove ineligible voters by reason of death or change of
residence. Appellants argue that because none of these has
occurred, their names may not be removed. We disagree.
In creating a list of justifications for removal, Congress did
not intend to bar the removal of names from the official list of
persons who were ineligible and improperly registered to vote
in the first place. The 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
eligible applicant is registered to vote in an election”); ID. at
§1973gg-6(a)(3) (providing that “the name of a registrant may
not be removed from the official list of eligible voters except”
under specific circumstances) (emphases added). Eligible
voters, at a minimum, are those who qualify as bona fide
residents of the precinct in which they are registered or wish
to register to vote. See, e. g., Dunn v. Blumstein, 405 U.S.
330, 343-44 (1972); Evans v. Cornman, 398 U.S. 419, 422
(1970); Kramer v. Union Free Sch. Dist., 395 U.S. 621, 625
(1969); Carrington v. Rash, 380 U.S. 89, 91 (1965).
Residence, as defined in section 3503.02(a) of the Ohio
Revised Code, is that place “in which the person's habitation
is fixed and to which, whenever the person is absent, the
person has the intention of returning.”
In this case, the Board investigated and examined the
residence of each appellant through challenge hearings.
Based on those examinations, the Board concluded that
appellants were not residents of Kelley’s Island and were
therefore ineligible to vote in the Kelley’s Island precinct.
They were improperly registered in the first place, and as a
result, the voting rolls were inaccurate. As instructed by the
National Voter Registration Act, the Board necessarily
removed their names from the rolls. See 42 U.S.C. §§1973gg-
6(a)(3)-(4) (“The purposes of this subchapter are . . . (3) to
protect the integrity of the electoral process, and (4) to ensure
8 Bell, et al. v. Marinko, et al. No. 02-4370
that accurate and current voter registration rolls are
maintained.”).
Were we to find that the Board’s removal of these voters
does violate the Act, we would effectively grant, and then
protect, the franchise of persons not eligible to vote. Because
the Act does not bar the Board’s continuing consideration of
a voter’s residence, and instead encourages the Board to
maintain accurate and reliable voting rolls, we find that the
Board’s procedures in this case do not contravene the
National Voter Registration Act.
2. Ohio Revised Code § 3503.02(D)
Section 3503.02(D) of the Ohio Revised Code states that
the place where the family of a married man or woman
resides shall be considered to be his or her place of residence.
Appellants argue that this section violates the National Voter
Registration Act’s requirement under section 1973gg-6(b)(1)
that state programs to protect the integrity of the electoral
process, such as hearings on challenges to a voter’s
registration, “shall” be “uniform” and “nondiscriminatory.”
Specifically, appellants argue that consideration of the
residence and voting precinct of a voter’s spouse, when such
consideration would not be made with respect to a nonmarried
or separated voter, is nonuniform and discriminatory, and
therefore in violation of the Act. Again, we disagree.
Ohio is free to take reasonable steps, as have other states,
to see that all applicants for registration to vote actually fulfill
the requirement of bona fide residence. See, e. g., Dunn, 405
U.S. at 343-44; Evans, 398 U.S. at 422; Kramer, 395 U.S. at
625; Carrington, 380 U.S. at 91. Bona fide residence may be
determined not only by an intention to reside at a fixed place,
but also factors that express such an intent. See Holt Civic
Club v. City of Tuscaloosa, 439 U.S. 60, 68 (1978). We find
that these factors include the residence and voting precinct of
a voter’s spouse. To that end, consideration of the residence
of a voter’s spouse in determining the voter’s residence is

-- 4 of 5 --

No. 02-4370 Bell, et al. v. Marinko, et al. 9
relevant and appropriate. Therefore, section 3503.02(D) does
not contravene the National Voter Registration Act.
C. Equal Protection Clause
Similarly, appellants argue that section 3503.02(D) requires
the Board to treat married voters differently than nonmarried
voters, and therefore violates the equal protection clause. As
stated, we find that such consideration, among other factors,
is relevant and appropriate in determining the residence of a
challenged voter. For purposes of equal protection, we now
apply the rule that, absent an irrebuttable presumption that a
voter’s residence is that place where the voter’s spouse
resides, such consideration does not violate the equal
protection clause. See Carrington, 380 U.S. at 91; Kelm v.
Carlson, 473 F.2d 1267, 1270 (6th Cir. 1973).
The plain language of section 3503.02(D)—the place where
the family of a married voter resides “shall” be considered the
voter’s residence—arguably creates some presumption of
residence. We therefore look for guidance to decisions from
the Supreme Court and our Court with regard to presumptions
and equal protection.
The rule that an irrebuttable presumption may not be
utilized to classify a person as a non-resident was applied in
Carrington, in which the Supreme Court invalidated a section
of the Texas Constitution that prohibited a member of the
armed forces who first established his home in Texas during
the course of his military service from satisfying the residence
qualifications for a voter so long as he remained a member of
the armed forces. Id. at 91-92. The Court stated: “‘The
presumption here created is definitely conclusive--incapable
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
10 Bell, et al. v. Marinko, et al. No. 02-4370
violation of the Fourteenth Amendment.” Id. Other courts
have subsequently noted that “[t]he determining factor [in
Carrington] was the conclusiveness of the presumption.” See
Whatley v. Clark, 482 F.2d 1230, 1234 (5th Cir. 1973); see
also Kelm, 473 F.2d at 1270.
This Court has also considered the irrebuttable presumption
as applied to the determination of residence. In Kelm, we
struck down an Ohio statute that required graduate students to
have taken a job in Ohio prior to enrolling in graduate school
in order to gain Ohio residency and pay the in-state tuition
fee. 473 F.2d at 1270. We found that the condition acted as
an impassable barrier to many students who in good faith
intend to and, for all other purposes, have succeeded in
establishing residency in Ohio, and therefore violated the
equal protection clause. Id.
Following this guidance, we must determine whether the
challenged provision raises an irrebuttable presumption.
Although the record shows that the Board did accept into
evidence the residence and voting precinct of each appellant’s
spouse, it also shows, as indicated above, that no appellant
was irrebuttably presumed to reside at the residence of his or
her spouse. Indeed, other evidence was presented and
expressly relied upon by the majority of Board members.
Because the Board did not raise an irrebutable presumption in
applying section 3502.02(D), we find that appellants have
suffered no equal protection violation.
III.
For the foregoing reasons, we AFFIRM the judgment of the
district court.

-- 5 of 5 --