Case 2:11-cv JTM-JCW Document 378 Filed 10/08/12 Page 1 of 3 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA

Transcription

1 Case 2:11-cv JTM-JCW Document 378 Filed 10/08/12 Page 1 of 3 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA LUTHER SCOTT, JR., and LOUISIANA STATE CONFERENCE OF THE NAACP, Plaintiffs, Civil Action No. 2:11-cv JTM-JCW Section H v. TOM SCHEDLER in his official capacity as the Louisiana Secretary of State, RUTH JOHNSON, in her official capacity as Secretary of the Louisiana Department of Children & Family Services, and BRUCE D. GREENSTEIN, in his official capacity as Secretary of the Louisiana Department of Health & Hospitals, Defendants. PLAINTIFFS MOTION IN LIMINE SEEKING JUDICIAL NOTICE NOW INTO COURT come Plaintiffs, LUTHER SCOTT, JR., and LOUISIANA STATE CONFERENCE OF THE NAACP, and file the attached motion in limine seeking this Court to take judicial notice of various EAC Reports introduced by Plaintiffs, specifically Plaintiffs Exhibits 222a 222h. For the reasons set forth in detail in the accompanying Memorandum, the Plaintiffs respectfully request that the Court grant this Motion. 1

2 Case 2:11-cv JTM-JCW Document 378 Filed 10/08/12 Page 2 of 3 Respectfully submitted, /s/ Dale E.Ho Dale E. Ho (dho@naacpldf.org)* Natasha M. Korgaonkar (nkorgaonkar@naacpldf.org)* Debo P. Adegbile Elise C. Boddie Ryan P. Haygood (rhaygood@naacpldf.org)* NAACP Legal Defense & Educational Fund, Inc. (New York) 99 Hudson Street, Suite 1600 New York, NY Ronald Lawrence Wilson (cabral2@aol.com) Ronald L. Wilson, Attorney at Law 701 Poydras Street, Suite 4100 New Orleans, LA Michael B. de Leeuw (michael.deleeuw@friedfrank.com)* Israel David (israel.david@friedfrank.com)* Fried, Frank, Harris, Shriver & Jacobson LLP One New York Plaza New York, NY Sarah Brannon (sbrannon@projectvote.org)* Niyati Shah (nshah@projectvote.org)* Michelle Rupp (mrupp@projectvote.org)* Project Vote 1350 Eye Street NW, Suite 1250 Washington, DC Attorneys for Plaintiffs 2

3 Case 2:11-cv JTM-JCW Document 378 Filed 10/08/12 Page 3 of 3 CERTIFICATE OF SERVICE I hereby certify that on the 8 of October, 2012, I electronically filed the foregoing Memorandum in Support of Motion to Strike Declarations and Documents Filed by Defendants Johnson and Greenstein and for Sanctions with the Clerk of the Court using the CM/ECF system, which will send a notice of electronic filing to persons electronically noticed. I further certify that I mailed the foregoing document and the notice of electronic filing by first class mail to any non-cm/ecf participant. /s/ Dale E. Ho

4 Case 2:11-cv JTM-JCW Document Filed 10/08/12 Page 1 of 5 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA LUTHER SCOTT, JR., and LOUISIANA STATE CONFERENCE OF THE NAACP, Plaintiffs, Civil Action No. 2:11-cv JTM-JCW Section H v. TOM SCHEDLER in his official capacity as the Louisiana Secretary of State, RUTH JOHNSON, in her official capacity as Secretary of the Louisiana Department of Children & Family Services, and BRUCE D. GREENSTEIN, in his official capacity as Secretary of the Louisiana Department of Health & Hospitals, Defendants. PLAINTIFFS MEMORANDUM IN SUPPORT OF MOTION IN LIMINE SEEKING JUDICIAL NOTICE Plaintiffs file this motion in limine seeking this Court to take judicial notice of various EAC Reports introduced by Plaintiffs, specifically Plaintiffs Exhibits 222a 222h. These exhibits are the reports entitled The Impact of the National Voter Registration Act of 1993 on the Administration for Federal Office (collectively the EAC Reports ) 1. These reports represent the official reports from the Federal Election Commission and the federal Election Assistance Commission and thus rely on sources the accuracy of which cannot reasonably be questioned. Accordingly, these exhibits are appropriate subjects for judicial notice. Fed. R. Evid. 201(b). 1 Please note that from 1995 through 2002 these reports were generated by the Federal Election Commission, and then since 2003 the reports have been generated by the federal Election Assistance Commission. The change in the responsibility for generating this report was enacted as part of HAVA (Pub.L ) in

5 Case 2:11-cv JTM-JCW Document Filed 10/08/12 Page 2 of 5 ARGUMENT Exhibits are reports are complied by federal government agencies, the Federal Election Commission and the Election Assistance Commission, pursuant to the requirements of the National Voter Registration Act, 42 U.S.C. 1973gg-7(a)(3). Certain information that the Secretary submits to the federal government is included in these EAC reports, as is required of the Secretary of State s office in its capacity as chief election officer of the state. La. Const. Art. IV, 7. See Pls. Exs (EAC Questionnaires). The Federal Rules of Evidence provide that judicial notice may be taken of a fact that is not subject to reasonable dispute because it... can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b)(2). A court may take judicial notice of information contained in official government Internet web sites under Rule 201 of the Federal Rules of Evidence. In re Hyperion Found., Inc., No NPO, 2009 WL , at *3 n.7 (Bankr. S.D. Miss. Aug. 11, 2009); see also Kitty Hawk Aircargo, Inc. v. Chao, 418 F.3d 453, 457 (5th Cir. 2005) (holding that judicial notice of a union s certification was proper because approval of the certification was available on the agency s own website). That logic applies where, as here, judicial notice is sought with respect to any government publication. Even if the Secretary of State were to argue that the methodologies were subject to... dispute, this Court may nevertheless take judicial notice of the fact of the reports themselves. Cf. Brown v. Lippard, 472 F.3d 384, 387 (5th Cir. 2006) (holding that a court could take judicial notice of the existence of testimony even if the fact to which the testimony related was itself disputed). To the extent that Defendants seek to call into question the substance of the EAC Reports, this does not change the fact that taking judicial notice is appropriate here. Moreover, [t]he court... must take judicial notice if a party requests it and the court is 2

6 Case 2:11-cv JTM-JCW Document Filed 10/08/12 Page 3 of 5 supplied with the necessary information. Fed. R. Evid. 201(c)(2). Because the EAC Reports are appropriate subjects for judicial notice, now that Plaintiffs have so requested and have given notice to Defendants, see Fed. R. Evid. 201(e) this Court is required to take judicial notice of the EAC Reports. CONCLUSION For the aforementioned reasons, Plaintiffs respectfully request this Court take judicial notice of the facts contained in Plaintiffs Exhibits 222a 222h. Respectfully submitted, /s/ Dale E.Ho Dale E. Ho (dho@naacpldf.org)* Natasha M. Korgaonkar (nkorgaonkar@naacpldf.org)* Debo P. Adegbile Elise C. Boddie Ryan P. Haygood (rhaygood@naacpldf.org)* NAACP Legal Defense & Educational Fund, Inc. (New York) 99 Hudson Street, Suite 1600 New York, NY Ronald Lawrence Wilson (cabral2@aol.com) Ronald L. Wilson, Attorney at Law 701 Poydras Street, Suite 4100 New Orleans, LA Michael B. de Leeuw (michael.deleeuw@friedfrank.com)* Israel David (israel.david@friedfrank.com)* Fried, Frank, Harris, Shriver & Jacobson LLP One New York Plaza New York, NY

7 Case 2:11-cv JTM-JCW Document Filed 10/08/12 Page 4 of 5 Sarah Brannon (sbrannon@projectvote.org)* Niyati Shah (nshah@projectvote.org)* Michelle Rupp (mrupp@projectvote.org)* Project Vote 1350 Eye Street NW, Suite 1250 Washington, DC Attorneys for Plaintiffs 4

8 Case 2:11-cv JTM-JCW Document Filed 10/08/12 Page 5 of 5 CERTIFICATE OF SERVICE I hereby certify that on the 8 of October, 2012, I electronically filed the foregoing Memorandum in Support of Motion to Strike Declarations and Documents Filed by Defendants Johnson and Greenstein and for Sanctions with the Clerk of the Court using the CM/ECF system, which will send a notice of electronic filing to persons electronically noticed. I further certify that I mailed the foregoing document and the notice of electronic filing by first class mail to any non-cm/ecf participant. /s/ Dale E. Ho

9 Case 2:11-cv JTM-JCW Document Filed 10/08/12 Page 1 of 3 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA LUTHER SCOTT, JR. and the LOUISIANA STATE CONFERENCE OF THE NAACP, Civ. No. 2:11-cv JTM-JCW Section H Plaintiffs, v. TOM SCHEDLER in his official capacity as the Louisiana Secretary of State; RUTH JOHNSON, in her official capacity as Secretary of the Louisiana Department of Children & Family Services; and BRUCE D. GREENSTEIN in his official capacity as Secretary of the Louisiana Department of Health & Hospitals, Defendants. NOTICE OF SUBMISSION PLEASE TAKE NOTICE that Plaintiffs Luther Scott, Jr. and the Louisiana State Conference of the NAACP will bring the attached Motion In Limine Seeking Judicial Notice for submission before the Honorable Judge Jane Triche Milazzo on the 15th day of October, 2012 at 8:15 a.m.

10 Case 2:11-cv JTM-JCW Document Filed 10/08/12 Page 2 of 3 Dated: October 8, 2012 Respectfully submitted, /s/ Dale E.Ho Dale E. Ho (dho@naacpldf.org)* Natasha M. Korgaonkar (nkorgaonkar@naacpldf.org)* Debo P. Adegbile Elise C. Boddie Ryan P. Haygood (rhaygood@naacpldf.org)* NAACP Legal Defense & Educational Fund, Inc. (New York) 99 Hudson Street, Suite 1600 New York, NY Ronald Lawrence Wilson (cabral2@aol.com) Ronald L. Wilson, Attorney at Law 701 Poydras Street, Suite 4100 New Orleans, LA Michael B. de Leeuw (michael.deleeuw@friedfrank.com)* Israel David (israel.david@friedfrank.com)* Fried, Frank, Harris, Shriver & Jacobson LLP One New York Plaza New York, NY Michelle Rupp (mrupp@projectvote.org)* Niyati Shah (nshah@projectvote.org)* Sarah Brannon (sbrannon@projectvote.org)* Project Vote 1350 Eye Street NW, Suite 1250 Washington, DC Attorneys for Plaintiffs

11 Case 2:11-cv JTM-JCW Document Filed 10/08/12 Page 3 of 3 CERTIFICATE OF SERVICE I hereby certify that on October 8, 2012, I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system, which will send a notice of electronic filing to counsel of record who are registered participants of the Court s CM/ECF system. I further certify that I mailed the foregoing document by first-class mail to counsel of record who are not CM/ECF participants as indicated in the notice of electronic filing. /s/ Dale E.Ho Dale E. Ho (dho@naacpldf.org)* Natasha M. Korgaonkar (nkorgaonkar@naacpldf.org)* Debo P. Adegbile Elise C. Boddie Ryan P. Haygood (rhaygood@naacpldf.org)* NAACP Legal Defense & Educational Fund, Inc. (New York) 99 Hudson Street, Suite 1600 New York, NY *MOTION FOR ADMISSION PRO HAC VICE Counsel for Plaintiffs

12 Case 2:11-cv JTM-JCW Document Filed 10/08/12 Page 1 of 1 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA LUTHER SCOTT, JR., and LOUISIANA STATE CONFERENCE OF THE NAACP, Plaintiffs, Civil Action No. 2:11-cv JTM-JCW Section H v. TOM SCHEDLER in his official capacity as the Louisiana Secretary of State, RUTH JOHNSON, in her official capacity as Secretary of the Louisiana Department of Children & Family Services, and BRUCE D. GREENSTEIN, in his official capacity as Secretary of the Louisiana Department of Health & Hospitals, Defendants. ORDER On Motion In Limine seeking this Court take judicial notice of various EAC Reports introduced by Plaintiffs, specifically Plaintiffs Exhibits 222a 222h, which are reports entitled The Impact of the National Voter Registration Act of 1993 on the Administration for Federal Office, IT IS HEREBY ORDERED that these reports represent the official reports from the Federal Election Commission and the federal Election Assistance Commission, rely on sources the accuracy of which cannot reasonably be questioned, and this Court shall take judicial notice of the same. This day of October, HONORABLE JANE TRICHE MILAZZO