UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

Transcription

1 Case 2:11-cv JTM-JCW Document 139 Filed 02/22/12 Page 1 of 14 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA ROY FERRAND, LUTHER SCOTT, JR., and LOUISIANA STATE CONFERENCE OF THE NAACP, for themselves and all other persons similarly situated, CIVIL ACTION NO. 2: JTM - JCW 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, CONSOLIDATED MEMORANDUM OF DEFENDANT SCHEDLER IN OPPOSITION TO PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT (DOC 112) AND IN REPLY TO PLAINTIFFS OPPOSITION (DOC 112-2) TO DEFENDANTS MOTIONS FOR SUMMARY JUDGMENT MAY IT PLEASE THE COURT: This consolidated memorandum is offered by Defendant, Tom Schedler, in his official capacity as Louisiana Secretary of State ( Secretary of State ) both in opposition to plaintiffs partial motion for summary judgment (Doc 112) and in reply to plaintiffs opposition (Doc 112-2) to defendants motions for summary judgment. Plaintiffs Failure to Prove Standing Is Fatal to Their Motion For Summary Judgment The party invoking federal jurisdiction bears the burden of establishing the elements -1-

2 Case 2:11-cv JTM-JCW Document 139 Filed 02/22/12 Page 2 of 14 necessary for Article III jurisdiction. Thus, the elements of standing are not merely pleading requirements but rather an indispensable part of the plaintiffs case, and each element must be supported in the same way as any other matter on which the plaintiffs bear the burden of proof. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). At the pleading stage of the proceedings or upon a motion to dismiss, the general allegations of injury resulting from defendants conduct may suffice to establish standing. But, at the summary judgment stage, each element of standing must be supported in the same way as any other matter on which the plaintiffs bear the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation. Lujan, supra; Inclusive Communities Project, Inc. v. Texas Department of Housing and Community Affairs, 749 F.Supp.2d 486 (D.C., N.D. Tex., 2010). In order to bring a civil action under the NVRA, a party must be aggrieved by a violation of some provision of the Act, 42 U.S.C. 1973gg-9(b). Plaintiffs motion for summary judgment in this case is unsupported by any evidence showing that the plaintiffs have standing to bring this action under the criteria established in the jurisprudence and expressly required by the NVRA. The lack of factual support on standing is fatal to plaintiffs motion for summary judgment for failure to prove an essential element entitling plaintiffs to a judgment. Proof of standing is an essential ingredient of the plaintiffs case, and plaintiffs failure to present evidence on that essential element means that their summary judgment must fail. -2-

3 Case 2:11-cv JTM-JCW Document 139 Filed 02/22/12 Page 3 of 14 Although this Court previously denied defendant s motion to dismiss which challenged plaintiffs standing (Doc 71), the denial was based upon the allegations of standing set out in the Complaint. As the courts have consistently held, plaintiffs cannot rely upon untested and unsupported allegations in the Complaint at the summary judgment stage but rather must produce evidence sufficient to prove that they have standing. Summary Judgment Against The Secretary of State Should Be Denied Even had the plaintiffs thought to submit evidence on standing, the summary judgment should be denied on the merits of the plaintiffs sole contention against the Secretary. Plaintiffs devote a considerable portion of their summary judgment submission to the scope of the Secretary of State s duties in coordinating the implementation of the NVRA with other state agencies designated as voter registration agencies under Section 7 of the Act. Boiled down, plaintiffs argue that reading the Act through the prism of its purpose enlarges the duty of the Secretary beyond coordination of state responsibilities (terms actually used in the Act, 42 U.S.C. 1973gg-8) to include supervision and enforcement over the other agencies (terms nowhere contained in the Act and powers nowhere bestowed upon the Secretary by state law). In support of their transformative reading of the Act, plaintiffs cite several prior decisions from several courts, which, upon closer examination, lack the precedential force urged by the plaintiffs. -3-

4 Case 2:11-cv JTM-JCW Document 139 Filed 02/22/12 Page 4 of 14 Plaintiffs rely on Harkless v. Brunner, 545 F.3d 445 (USCA 6 Cir. 2008), and two other cases quoting Harkless, United States v. Louisiana, 2011WL (M.D. La. 12/1/11) and Valdez v. Herrera, No. 1:09-cv (D.N.M. 12/21/10) for the proposition that the chief election official s responsibilities include enforcement. Both Harkless and Herrera relied upon state laws to find the enforcement powers by the Ohio and New Mexico Secretaries of State. Ohio law empowers the Secretary to [c]ompel the observance of election officers in the several counties of the requirements of the election laws, id (M), Harkless, p Accordingly, even if the word coordination in the NVRA is truly vague, Ohio law makes it abundantly clear that the Secretary is responsible for the implementation and enforcement of Section 7. Ohio law also makes clear that she has the authority to do so. Harkless, p The concept that the chief election official has the ability and responsibility to ensure compliance with Section 7 is... in New Mexico law. Valdez, p. 20. Moreover, neither case is a final definitive decision. Harkless merely determined that the Secretary of State was a proper party to be sued for alleged NVRA noncompliance. Valdez acknowledged that Very little case law in general, and none in the Tenth Circuit, exists that interprets what duties a chief state election official must perform in order to be compliant with the NVRA. Valdez, p. 16. Valdez found only that a state chief state election official bears at least some responsibility for the state s compliance with Section 7 s mandates, Valdez, p. 20, citing the admitted responsibilities by the Secretary, Valdez, p. 21. Valdez was decided on a motion for summary judgment filed by the Secretary -4-

5 Case 2:11-cv JTM-JCW Document 139 Filed 02/22/12 Page 5 of 14 of State, which the court denied finding Finally even if the Secretary bears no responsibility for ensuring that other agencies are meeting Section 7 s requirements, she still has not demonstrated as a matter of law that she is entitled to summary judgment. Valdez, p. 21. The evidentiary support for summary judgment was insufficient to carry the Secretary s burden, which is hardly precedent for novel interpretations of the NVRA. Finally, the decision in United States v. Louisiana, 2011WL (M.D. La. 2011) determined that the state s duty to designate voter registration agencies must be with, and only with, the State and the Secretary of State, p. 6, an issue not in dispute in the motions before this Court. That being said, the scope of the Secretary s responsibility is likely to come to the Court at a future time, (provided plaintiffs can prove standing) and a more fruitful discussion can be had at that time. But, for now, the sole basis for summary judgment urged by plaintiffs against the Secretary of State is that the Secretary erroneously guided defendants 1 Greenstein and Johnson with respect to the NVRA s application to remote transactions. Without quibbling over whether plaintiffs evidentiary showing is sufficient to prove that the Secretary of State advised the other state agencies that the NVRA applies to in person transactions, let it be clear that the Secretary of State construes the Act to apply to 1 The plaintiffs do not allege that the Secretary of State has any responsibility for the alleged failure of the other defendants to provide clients with the same degree of assistance with regard to voter registration forms as is provided with regard to the completion of those defendants own forms, and the Secretary need not address that issue. -5-

6 Case 2:11-cv JTM-JCW Document 139 Filed 02/22/12 Page 6 of 14 in person transactions only and the Secretary has at no point taken a contrary position in coordinating the implementation of the Act with the other state agencies. The other state agencies, judged from their pleadings, are of a like mind in that regard, and the Court need not labor over whether a Secretary of State representative made statements to that effect in a training session. The Secretary has been unwavering in construing the Act to govern in person transactions at public assistance agencies, at offices providing disability services and at the homes of persons receiving at-home disability services. Supporting the Secretary s reading of the Act with respect to in person transactions is the decision in Harkless v. Brunner, supra, so warmly embraced by the plaintiffs in their memorandum. In summarizing the requirements of the NVRA, the Harkless court took the view that voter registration is required to take place at public assistance and disability services offices. Thus, in accordance with the NVRA, any time a person enters a DJFS office to receive food stamps, Medicaid assistance, welfare, or disability benefits assistance, that person should receive a voter registration form for federal elections and assistance in filling out the form. Harkless v. Brunner, 545 F.3d 445 (USCA 6 Cir. 2008) [emphasis supplied]. It cannot be credibly argued that the Harkless court was unaware of the proliferation of internet utilization by public assistance and disability services agencies in Rather, it is apparent that the Harkless court read the in person provisions of the Act and understood them. The Secretary of State in this case understood the Act in the same way with respect to in person transactions at agency offices and coordinated implementation -6-

7 Case 2:11-cv JTM-JCW Document 139 Filed 02/22/12 Page 7 of 14 accordingly. The Secretary of State believes that it fulfilled its NVRA responsibilities in that regard. The NVRA Applies to In Person Transactions at Public Assistance and Disability Services Offices The Secretary of State discussed the in person issue in its original summary judgment memorandum. Rather than repeating its arguments, the Secretary will address here the arguments raised by the plaintiffs in their memorandum in opposition to the Secretary s motion. Plaintiffs argue that Section 4 of the Act (42 U.S.C. 1973gg-2) is somehow estranged from and should not be read in conjunction with Section 7 (42 U.S.C. 1973gg-5). Section 4 is the section of the NVRA that defines the three areas of state activity covered by the Act. Those activities are: (1) Applications made simultaneously with an application for a motor vehicle driver s license; (2) Applications by mail; and (3) Application in person either at a parish registrar s office or at a federal, state or non-governmental office designated under Section 7 of the Act. Plaintiffs say, however, that Section 4 merely requires the state to establish procedures for voter registration in the three kinds of state transactions mentioned. Section 7, they say, instructs the designated voter registration agencies separately and includes transactions beyond the in person transactions identified in Section

8 Case 2:11-cv JTM-JCW Document 139 Filed 02/22/12 Page 8 of 14 The plaintiffs is a tortured construction of the Act and disregards the Act s architecture and structure. Again, Section 4 calls for the states to establish procedures for voter registration in connection with three categories of state transactions. The first area under Section 4(a)(1) is by simultaneous application for a motor vehicle driver s license (frequently referred to as the Motor Voter provision). Section 5 of the Act (42 U.S.C. 1973gg-3) then details how voter registration is to occur in connection with motor vehicle license applications. Similarly, Section 4(a)(2) mandates the adoption of voter registration procedures for mail applications, and Section 6 (42 U.S.C. 1973gg-4) details the requirements for mailed registration. Section 4(a)(3) requires the establishment of procedures for application in person at sites designated under Section 7 (42 U.S.C gg-5). Section 7 then details procedures to be utilized for application in person at the offices designated under Section 7. For each of the three areas of state activity identified in Section 4, Congress provided detailed instructions on how to conduct voter registration in each area. This is the only coherent way to construe the Act. Forcing a construction of the Act that would effectively divorce Section 4 from the following sections of the Act requires a leap of faith rather than a sensible reading of the Act. Surely, no one would venture that Section 5 does not amplify Section 4(a)(1) with respect to applications for motor vehicle driver s licenses nor that Section 6 does not give procedural detail for mail-in registrations under Section 4(a)(2). The -8-

9 Case 2:11-cv JTM-JCW Document 139 Filed 02/22/12 Page 9 of 14 relation of Section 4(a)(3) to Section 7 is no different. Section 7 provides instruction with respect to applications in person at offices designated under Section 7. The structure of the Act, itself, rebuts the plaintiffs proffered interpretation of the Act. In memoranda, plaintiffs rely upon a district court decision from Georgia, Georgia v. Kemp, United States District Court, Northern District of Georgia, Civil Action No. 1:11- CV-1849, and a website statement by the Justice Department to support their belief that the NVRA, despite its in person language, extends to remote transactions by internet, telephone or other means. The Georgia decision in Georgia v. Kemp, came by way of a district court s denial of the Georgia Secretary of State s motion to dismiss, not on a motion for summary judgment or a trial on the merits. The decision is not a final appealable judgment and merely allows the Georgia litigation to go forward. The Georgia court does treat the in person application provision of the NVRA but does so unpersuasively in the Secretary of State s view. The Court there, as the plaintiffs do in memorandum, divorce Section 7 from Section 4. The court reasons that Section 4 only deals with the establishment of procedures by the state for in person applicants and does not deal principally with the way in which states must offer voter registration forms, a novel idea, indeed. The Georgia court then falls into the same interpretative error as the plaintiffs by reasoning that the Act s express provisions evolve in order to fulfill the Act s purpose. The -9-

10 Case 2:11-cv JTM-JCW Document 139 Filed 02/22/12 Page 10 of 14 courts have consistently rejected this method of statutory analysis. No legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the essence of legislative action. It frustrates legislative intent to assume simplistically that whatever furthers the statute s primary objective must be the law. Norfolk Southern Railway Co. v. Sorrell, 549 U.S. 158, 171 (2007); Rodriguez v. United States, 480 U.S. 522, (1987). Rewriting a statute is a job for Congress, not for the courts. Gonzales v. Arizona, 453 F.Supp.2nd 997, 1003 (U.S.D.C., D. Arizonia 2006). It is not the function of the courts to reformulate a statute in pursuit of its purpose or in light of changing realties. If Congress determines that its statute needs to be amended, it can certainly act in that regard. Nor can Section 7 of the Act be read in isolation from Section 4 anymore than Section 5 or Section 6 can be read in isolation from Section 4. Sections 5, 6 and 7 relate back to Section 4 with respect to each of the three kinds of transactions identified as being governed by the NVRA. It is untenable to suggest that Section 7 has nothing to do with in person transactions. This construction of the statute would mean that the states are required to establish registration procedures for in person transactions but need not adopt any procedures at all for other kinds of transactions. Section 7 cannot so readily be severed from Section 4. Harkless v. Brunner, 545 F.3d 445 (USCA 6 Cir. 2008), so recognized when it held that the NVRA requires the distribution of voter application forms anytime a person enters a DJFS office to receive food stamps, Medicaid assistance, welfare or disability benefits -10-

11 Case 2:11-cv JTM-JCW Document 139 Filed 02/22/12 Page 11 of 14 assistance... Harkless, supra, p Section 7(a)(4)(B), 42 U.S.C. 1973gg-5(a)(4)(B), reinforces the NVRA s applicability to in person transactions by requiring that voter registration services be provided at a person s home if disability services are offered at the person s home. Both the Georgia district court and the plaintiffs in memoranda simply ignore that provision of the Act. If Section 7 meant what the Georgia court and the plaintiffs say that it means, i.e., that a voter registration form must be distributed with all applications for service or assistance, the at home provision would be mere surplusage. The Secretary of State submits that an in person transaction at a disabled person s home is tantamount to Harkless entering a public assistance or disability services offices for purposes of the NVRA. The at home provision is not superfluous but is essential because Congress so clearly intended that the distribution of voter registration forms and assistance with their completion occur in conjunction with in person transactions. Finally, plaintiffs seize on a Department of Justice website statement to support its argument for NVRA application to remote transactions as though the Department of Justice has special authority to interpret the Act. Such is not the case. Congress has not delegated administrative authority over the NVRA to the Justice Department. United States v. State of New York, 3 F.Supp.2d 298, 308 (E.D.N.Y. 1998), reversed, in part, on other grounds, at 202 F.3d 110 (USCA 2d Cir. 2000). The Attorney General s powers are limited to commencing civil actions under the Act; -11-

12 Case 2:11-cv JTM-JCW Document 139 Filed 02/22/12 Page 12 of 14 9(a), (b). Such civil actions are presented to the courts for consideration and determination of the Attorney General s claims and contentions as with any other litigant. The government s position is not entitled to deference. United States v. New York, supra. The statute must be interpreted by the courts as written, the Department of Justice current website content notwithstanding. Beyond that, the Secretary of State commends the court to its original memorandum in support of its motion for summary judgment. The Secretary of State submits that its suggested construction of the statute is reasonable and accords with the language of the statute. The NVRA has the same meaning and application today as it did in Whether Congress anticipated remote transactions with regard to public assistance and disability services transactions is of no moment. Congress has had an opportunity to change the terms of the statute to broaden its application and has not done so. Conclusion The Secretary of State submits that its motion for summary judgment should be granted, and the plaintiffs motion should be denied. Respectfully Submitted: s/celia R. Cangelosi CELIA R. CANGELOSI Bar Roll No Government Street, Suite 101 P.O. Box 3036 Baton Rouge, LA the same right given to all persons aggrieved by a violation of the Act. 42 U.S.C. 1973gg- -12-

13 Case 2:11-cv JTM-JCW Document 139 Filed 02/22/12 Page 13 of 14 Telephone: (225) Facsimile: (225) s/carey T. Jones CAREY T. JONES Bar Roll No Vincent Road P.O. Box 700 Denham Springs, LA Telephone: (225) Facsimile: (225) Attorneys for Defendant, Tom Schedler in his official capacity as Louisiana Secretary of State -13-

14 Case 2:11-cv JTM-JCW Document 139 Filed 02/22/12 Page 14 of 14 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the above and foregoing Consolidated Memorandum Of Defendant Schedler In Opposition To Plaintiffs Motion For Partial Summary Judgment (Doc 112) and In Reply To Plaintiffs Opposition (Doc 112-2) To Defendants Motions For Summary Judgment was sent electronically or via U.S. First Class Mail, postage prepaid, to the following: Ronald L. Wilson (cabral2@aol.com) 710 Poydras Street, Suite 4100 New Orleans, LA Dale Ho (dho@naacpldf.org) Natasha Korgaonkar (nkorgaonkar@naacpldf.org) Ryan P. Haygood (rhaygood@naacpldf.org) 99 Hudson Street, Suite 1600 New York, NY Niyati Shah (nshah@projectvote.org) 737 ½ 8th St., SE Washington, DC Michelle Rupp 1350 Eye Street NW, Suite 1250 Washington, DC Stephen R. Russo (stephen.russo@la.gov) David McCay (david.mccay@la.gov) Douglas L. Cade (douglas.cade@la.gov) Kimberly L. Humbles (kim.humbles@la.gov) Department of Health & Hospitals Bureau of Legal Services Bienville Blvd. th 628 N. 4 Street Baton Rouge, LA Amy Colby (amy.colby@la.gov) Celia Alexander (celia.alexander@la.gov) Eboni Townsend (eboni.townsend@la.gov) Bureau of General Counsel Louisiana Department of Children and Family Services P.O. Box 1887 Baton Rouge, LA nd Baton Rouge, Louisiana, this 22 day of February, s/celia R. Cangelosi CELIA R. CANGELOSI -14-