Case 2:11-cv JTM-JCW Document 456 Filed 03/05/13 Page 1 of 20 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA

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1 Case 2:11-cv JTM-JCW Document 456 Filed 03/05/13 Page 1 of 20 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, SUZY SONIER, 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 OF LAW IN OPPOSITION TO DEFENDANT SCHEDLER S MOTION FOR STAY PENDING APPEAL Plaintiffs Luther Scott, Jr. and the Louisiana State Conference of the NAACP ( Plaintiffs ) file this opposition to Defendant Tom Schedler s Motion for Stay Pending Appeal. Doc This Court issued a final Judgment in favor of Plaintiffs in this matter on January 23, See Findings of Fact and Conclusions of Law, Doc. 436 and Permanent Injunction, Doc. 437 (herein after the Ruling ). The Court ordered the Secretary of the Department of Health and Hospitals, the Secretary of the Department of Children and Family Services, and the Secretary of State to maintain in force and effect their policies, procedures, and directives, as revised, relative to the implementation of the National Voter Registration Act with respect to all qualifying programs under their administration. As to any program for which [Defendants have]

2 Case 2:11-cv JTM-JCW Document 456 Filed 03/05/13 Page 2 of 20 not achieved substantial compliance with the provisions of the National Voter Registration Act, 42 U.S.C. 1973gg, et. seq., [the Defendants] are directed to implement such policies, procedures, and directives as to each program no later than March 15, 2013, and certify such compliance to this Court. See Permanent Injunction, Doc Secretary of State, Tom Schedler ( SOS or Defendant Schedler ), seeks to stay the implementation of the Court s Ruling pending appeal. At the outset, Plaintiffs note that the Motion for a Stay has been filed only by the Secretary of State. Neither Defendant Bruce Greenstein, Secretary of the Department of Health and Hospitals ( DHH ) nor Defendant Suzy Sonnier, Secretary of the Department of Children and Family Services ( DCFS ) has joined the SOS s motion nor have they filed their own requests for a stay. Moreover, it is Plaintiffs understanding that neither DHH nor DCFS plans to appeal the Court s Ruling. In his Memorandum, the SOS states the Department of Health and Hospitals and the Department of Children and Family Services have indicated that they do not intend to appeal but rather, plan to certify compliance with the injunction to the court within the time permitted by the court s order. Doc 445-1, at 26. Also, DHH recently filed an unopposed motion seeking additional time to comply with the Court s Ruling as to some of its programs and making clear that DHH was prepared to certify compliance of its public assistance programs Women, Infants and Children ( WIC ) and Medicaid, by the March 15, 2013 deadline. Doc. 443 at 1. DCFS has not filed any motion seeking an extension of the March 15, 2013 deadline. As explained below, a stay is not appropriate in this case for any reason. But even if this Court were to grant a stay pending appeal, any such stay must be limited solely to the Court s Ruling as to the SOS because neither of the other two Defendants seeks a stay nor do they intend 2

3 Case 2:11-cv JTM-JCW Document 456 Filed 03/05/13 Page 3 of 20 to file any appeals. It would, therefore, not be appropriate for this Court to issue any stay applicable to those Defendants under any circumstances. ARGUMENT This Court should deny the SOS s request for a stay pending appeal because the SOS has not satisfied his burden that a stay is warranted in this case. I. LEGAL STANDARD While an appeal is pending from an interlocutory order or final judgment that grants, dissolves, or denies an injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party s rights. Fed. R. Civ. P. 62(c). But stay pending appeal is an extraordinary remedy. Belcher v. Birmingham Trust Nat l Bank, 395 F.2d 685, 685 (5th Cir. 1968) (denying stay pending appeal). This places a heavy burden on the moving party and, as such, more commonly stay requests will not meet this standard and will be denied. 11 Charles Alan Wright et al., Federal Practice and Procedure 2904, at (2012). When deciding to issue a stay, a district court must consider the following factors: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Hilton v. Braunskill, 481 U.S. 770, 777 (1987). Each factor is not necessarily entitled to equal weight. A stay is discretionary with the court. Transocean Offshore Deepwater Drilling, Inc. v. Globalsantafe Corp., No. H , 2006 WL , *11 (S.D. Tex. Dec. 27, 2006). 3

4 Case 2:11-cv JTM-JCW Document 456 Filed 03/05/13 Page 4 of 20 II. THE SECRETARY OF STATE HAS NOT MADE A STRONG SHOWING THAT HE IS LIKELY TO SUCCEED ON THE MERITS The SOS argues that he is entitled to a stay of the judgment in this case because he is likely to succeed on the merits of a number of claims, all of which have been thoroughly considered and rejected by this Court. Moreover, the SOS offers no new or compelling arguments concerning the issues in this case and, therefore, has not satisfied his burden to make a strong showing that he will succeed on the merits of any of his claims. First, the SOS argues that this Court erroneously ruled: (i) the SOS is responsible for implementing and ensuring compliance with Section 7 of the National Voter Registration Act ( NVRA ) by DCFS and DHH; (ii) the SOS is liable for the violations of Section 7 of DCFS and DHH; and (iii) the SOS is responsible for providing accurate and regular training regarding Section 7. See Doc , at 6-8 (implementation) and (training). All the issues related to the role and responsibilities of the SOS have been thoroughly briefed in this case. See, e.g., Docs , 168-1, 241-1, and 428. Plaintiffs refer the Court to discussion in those earlier papers and assert that for the reasons already stated in the record, the SOS is not likely to succeed on the merits of his claims related to the responsibilities of the SOS in carrying out the requirements of Section 7 of the NVRA. Moreover, this Court s Ruling regarding the responsibilities of the SOS under the NVRA is consistent with the rulings of all other courts to have considered this issue, most notably, the Sixth Circuit s decision Harkless v. Brunner, 545 F.3d 445 (6th Cir. 2008). 1 See also United States v. Louisiana, Civil Action No JJB, 1 Contrary to the SOS s arguments, the ruling of the Sixth Circuit in Harkless was not based solely on Ohio state laws, but instead recognized that state law merely supported the court s holding that [u]nder the plain language of the statute [the NVRA], the designated officer, here the Secretary, must coordinate state responsibilities. Harkless. 545 F.3d at 452. Therefore, each state shall designate voter registration agencies, and... each state shall ensure that the agencies complete the required tasks. And the Secretary, as Ohio s chief election officer, is responsible for harmonious combination or implementation and enforcement of that program on behalf of Ohio. Id. The Sixth Circuit buttressed its holding by also 4

5 Case 2:11-cv JTM-JCW Document 456 Filed 03/05/13 Page 5 of WL , at *6 (M.D. La. Dec. 1, 2011); Vladez v. Herrera, No , 2010 U.S. Dist. LEXIS , at *35 (D.N.M. Dec. 21, 2010). The fact that not a single other court has endorsed the SOS s position on these issues is clear evidence that the SOS is not likely to succeed on the merits of these issues. Second, the SOS alleges again that the Plaintiffs do not have standing to bring these claims based on (i) the NVRA s notice provisions; and (ii) Article III standing requirements. Initially, the SOS alleges that neither Plaintiff properly complied with the notice requirements of the NVRA, 1973gg-9(b)(2). See Doc , at This argument was previously presented by the SOS in his motion to dismiss, see Doc. 26-2, and specifically rejected by the Court. See Ferrand v. Schedler, No. 2:11-cv-926, 2011 WL , at *4 (E.D. La., July 21, 2011), Doc. 71, at The SOS also argues again that neither of the Plaintiffs has Article III standing. See Doc , at These arguments have been thoroughly addressed in previous filings. See, e.g., Docs. 67, 168-1, 241-1, and 428. After considering the factual evidence presented at trial, this Court reached its Findings of Fact and Conclusions of Law. See Doc This Court s Ruling conclusively explains why both Plaintiffs have Article III standing and, for the reasons set forth therein, the SOS is not likely to prevail on the merits of his arguments related to Article III standing on appeal. 2 finding that 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. Id. at 453. Thus, any reference to Ohio law is simply an argument made in the alternative, and an independent basis for the court s reasoning, and does nothing to undercut the court s holding about what the NVRA - on its own - requires. 2 The SOS claims that he is likely to succeed on the merits of his claims related to the Article III standing of the Louisiana NAACP because he asserts that the Court erroneously considered facts related to the NAACP s voter registration activities from before 2010 despite ruling during the trial that any evidence before 2010 would be excluded. This argument, however, mischaracterizes the Court s Ruling. The Court did provide some background information about the Louisiana NAACP in its Ruling, but ultimately, the holding of the Court is based on the evidence from The Court states [s]pecifically, in 2010, the LSC NAACP allocated its resources in the low-income African-American community 5

6 Case 2:11-cv JTM-JCW Document 456 Filed 03/05/13 Page 6 of 20 Third, the SOS argues that this Court s Ruling regarding the treatment of blank responses to the voter declaration from is erroneous and involves a novel ruling of law. See Doc. 445, This issue was thoroughly briefed by all parties in this case, was addressed at trial, and has already been considered by this Court. For all the reasons already stated in the record, see, e.g., Docs , and 428, the SOS is not likely to prevail on the merits of his claim related to this issue. Furthermore, this issue is not a novel ruling of law for two reasons. First, Plaintiffs position and the Court s Ruling are based on the plain language of the statute. See 42 U.S.C. 1973gg-5(a)(6)(A). A court ruling based on the plain language of a statute that is more than 15 years old cannot be considered a novel ruling of law. Second, and more importantly, this issue is not novel because it has been considered by another court, namely the Tenth Circuit Court of Appeals, which reached the same conclusion as this Court with respect to this issue. See Valdez v. Squier, 676 F.3d 935 (10th Cir. 2012). Given the earlier court ruling, this cannot be called a novel legal issue. Furthermore, the fact that no court has ruled consistent with the SOS s position on this issue further indicates that the SOS is not likely to prevail on the merits of this issue. Fourth, the SOS argues yet again that this Court s Ruling regarding remote transactions is erroneous and involves a novel ruling of law. See Doc , at 5-6. Like the other issues raised by the SOS, this issue has been fully briefed. See, e.g., and And of course, this Court has already held that remote transactions are covered by Section 7 of the NVRA. See Ferrand v. Schedler, No. 2:11-cv-926, 2012 WL (E.D. La. May 3, 2012), Doc. 212; and Doc. 436, at 30. The SOS s arguments in the motion for a stay related to this issue raise nothing new. And like this Court s Ruling on the issue of blank declaration forms, the issue of remote much of which is served through DCFS and DHH programs. Had DCFS and DHH, and the SOS properly conducted their voter registration duties as required under the NVRA, the LSC NAACP could have spent its meager resources on other priorities. Doc. 436, at 19. 6

7 Case 2:11-cv JTM-JCW Document 456 Filed 03/05/13 Page 7 of 20 transactions is not a novel issue of law, as this Court recognized in its ruling rejecting Defendants Motion for an interlocutory appeal in this issue. See Doc Indeed, the only other court to have considered this question directly also held that Section 7(a)(6) applies to public assistance clients who apply for benefits via remote means. See Georgia v. Kemp, 841 F. Supp. 2d 1320 (N.D. Ga. 2012). Moreover, every recent court-approved NVRA consent decree or settlement has included provisions requiring the distribution of voter registration forms during remote transactions, such as internet, telephone, and mail-in applications for benefits. 3 The SOS has not offered any arguments to satisfy his burden of showing that he is likely to succeed on the merits of this claim when every court to consider this issue has ruled contrary to the SOS s position. Finally, the SOS argues that he is likely to prevail on appeal because the Permanent Injunction issued by the Court, Doc. 437, does not comply with the requirements of Rule 65(d)(1) of the Federal Rules of Civil Procedure. See Doc , at 4-5. Instead, the SOS claims, the Permanent Injunction is no more specific than an obey the law mandate. See Doc , at 4. He is wrong on both counts. Rule 65(d)(1) requires that every order granting an injunction must (A) state the reasons why it issued; (B) state its terms specifically; and (C) describe in reasonable detail and not by referring to the complaint or other document the act or acts restrained or enjoined. See also 3 See, e.g., Indiana State Conf. of the NAACP v. Gargano, No. 1:09-cv-0849-TWP-DML (S.D. Ind. May 12, 2011), Dkt. No , at 6-7 (mail, telephone, and internet transactions); United States v. Rhode Island, No. 1:11-cv S-LDA (D.R.I. March 18, 2011), Dkt. No. 2, at (mail, online, and telephone transactions); Valdez v. Duran, No. 1:09-cv-668-JCH-DJS (D.N.M. Feb. 24, 2011), Dkt. No. 148, at 8 (phone, fax, electronic, and mail transactions); Harkless v. Brunner, No. 1:06-cv PAG (N.D. Ohio Nov. 25, 2009), Dkt. No. 85, at 11 (mail, internet, and telephone transactions); Ass n of Comm. Orgs. for Reform Now v. Levy, No. 2:08-cv NKL (W.D. Mo. June 25, 2009), Dkt. No. 133, at 7-8 (mail, internet, and telephone transactions). These settlements agreements are in the record as Exhibits 3-7 to Doc

8 Case 2:11-cv JTM-JCW Document 456 Filed 03/05/13 Page 8 of 20 Seattle-First Nat l Bank v. Manges, 900 F.2d 795, 799 (5th Cir. 1990). This Court s Permanent Injunction, Doc. 437, satisfies each of these requirements because it states the reasons for issuance, enumerates terms specifically, and describes in details the acts restrained or enjoined. First, the Permanent Injunction clearly states the reasons for issuance: [i]n accordance with the Court s Findings of Fact and Conclusions of Law... Defendant[ ] Tom Schedler, in his official capacity as the Louisiana Secretary of State... violated the requirements of the National Voter Registration Act, 42 U.S.C. 1973g, et seq. Next, the Court specifically required Defendant Schedler to maintain his newly-revised policies, procedures, and directives relating to the National Voter Registration Act (NVRA) coordination within Louisiana. See Doc. 437, at 2. The Injunction also orders that to the extent the SOS has not achieved compliance with the NVRA in any policy, procedure, or directive, he must do so by March 15, See id. at 3. Thus, the Permanent Injunction is clear in its direction to the SOS because it states that Defendant Schedler must not change any of his recently revised policies, procedures, and directives that were put in place to comply with the NVRA, and specifically directs Defendant Schedler to change any policy, procedure, or directive that is currently not in compliance with the NVRA. The specific acts restrained or enjoined are stated within the order itself. Cf. Islander East Rental Program v. Barfield, 145 F.3d 359, 1998 WL , *4 (5th Cir., March 24, 1998) (internal citations omitted) ( Although the requirements of Rule 65(d) are mandatory, elaborate detail is unnecessary;... an injunction must simply be framed so that those enjoined will know what conduct the court has prohibited. ). This is easily distinguished from an obey the law mandate, which would not comport with the requirements of Rule 65(d). For example, the Fifth Circuit has held that an injunctive order prohibiting discrimination on the basis of color, race, or sex in employment practices was 8

9 Case 2:11-cv JTM-JCW Document 456 Filed 03/05/13 Page 9 of 20 too general, because the injunction was barely more specific than Title VII itself. See Payne v. Travenol Laboratories, Inc., 565 F.2d 895, 898 (5th Cir. 1978) (finding that [s]uch obey the law injunctions cannot be sustained. (internal citations omitted)). Here, in contrast, the Permanent Injunction is more specific; rather than just requiring the SOS to obey the NVRA, the Court here is prohibiting the SOS from changing his revised policies, practices, and directives and specifically instructs the SOS to make an additional changes needed. Thus, the Permanent Injunction here is akin to Meyer v. Brown & Root Construction Company, 661 F.2d 369, 373 (5th Cir. 1981). In Meyer, an injunction prohibiting a corporation from engaging in an unlawful employment practice was deemed compliant with Fed. R. Civ. P. 65(d)(1) because, according to the judgment, the corporation had violated Title VII by constructively discharging an employee when she was pregnant. See id. Like this Court s Permanent Injunction, the injunction in Meyer specifically stated what the legal violation had been and what conduct was specifically prohibited in the future. See id. 4 The Fifth Circuit has construed the no reference requirement of Federal Rule of Civil Procedure 65(d)(1)(C) strictly. See Seattle-First Nat l Bank v. Manges, 900 F.2d at 799. In Seattle-First, the Fifth Circuit held that the district court did not comply with Rule 65(d) when it adopted the magistrate s findings and recommendation and without further elaboration granted 4 Even if the Court were concerned that the Permanent Injunction is not as specific as required by Rule 65(d)(1), a stay pending appeal is not warranted. Instead, the Court should issue a single judgment combining the existing Findings of Fact and Conclusions of Law, Doc. 436, with the Permanent Injunction, Doc A court order granting an injunction may also properly include the finding of facts and law as part of the injunction. See Wynn Oil Company v. Purolator Chemical Corporation, 536 F.2d 84, 85 (5th Cir. 1976). The purpose of Rule 52(a) [requiring a separate finding of fact and law], pertinent to injunctions, is to provide the appellate court with a clear understanding of the decision. Id. (internal citations omitted) (emphasis added). If this Court issues a single order with both the findings of fact and conclusions of law, and the injunctive relief, no stay is warranted. Moreover, there would be no prejudice to Defendant Schedler because he has already received both documents in their entirety, and thus will not face any new requirements. 9

10 Case 2:11-cv JTM-JCW Document 456 Filed 03/05/13 Page 10 of 20 the preliminary injunction and ordered that the TRO remain in effect. The order fails to state the reasons for its issuance, is not specific in its terms and refers to the magistrate s report and the TRO. 900 F.2d at 799. But unlike the injunction at issue in Seattle-First, the Court here does not merely refer Defendant Schedler to the findings of fact and law; instead, the Court specifically, and within the document, requires that the SOS maintain certain of its revised policies, practices, and directives and change those policies, practices, and directives still not in compliance with the NVRA. If the SOS has questions or concerns about what is required by the NVRA, he is free to request clarification or to refer to the Court s Findings of Fact and Conclusions of Law. See Doc Indeed, the Fifth Circuit in Islander East ruled that elaborate detail is unnecessary. See 145 F.3d 359, 1998 WL , *4 (5th Cir. March 24, 1998). Importantly, as Defendant Schedler concedes, the other two Defendants did not find the Permanent Injunction lacking in specificity, as they have indicated that they do not intend to appeal but rather, plan to certify compliance with the injunction to the court within the time permitted by the court s order. Doc , at 25. The Permanent Injunction in this case is sufficient in the detail it provides and, therefore, complies with the requirements of Rule 65(d). Like all the other arguments raised in his papers, the SOS is not likely to succeed on appeal as to this argument. The SOS has not satisfied his burden of making a strong showing that he is likely to succeed on the merits of any of the claims he is raising. The SOS cannot satisfy this burden because he is not likely to succeed on any of his arguments. It is, therefore, not appropriate for this Court to issue a stay. 10

11 Case 2:11-cv JTM-JCW Document 456 Filed 03/05/13 Page 11 of 20 III. THE SECRETARY OF STATE HAS NOT SATISFIED HIS BURDEN OF SHOWING THAT HE WILL SUFFER IRREPABLE INJURY ABSENT A STAY Although the failure to show a strong likelihood of success on the merits is reason enough to deny the SOS s motion, he has also failed to demonstrate irreparable harm absent a stay. A. The SOS will not be injured by the terms of the Permanent Injunction The SOS maintains that he will suffer irreparable injury absent a stay because the Permanent Injunction leaves him open to contempt charges and continued litigation should his interpretation fail to correlate to that of the Plaintiffs. See Doc , at However, the Permanent Injunction provides a detailed mechanism to avoid protracted litigation and provides the SOS with a means to avoid contempt charges. The Permanent Injunction provides that [b]efore filing a motion seeking enforcement by this Court of the terms of this Order, Plaintiffs shall provide Defendants with written notice of any claim of breach of this Order. Defendants shall have thirty days to respond to such notice, and then another sixty days from the time of their response to resolve the complaint. Doc. 437, at 3. In essence, the Injunction provides Defendant Schedler with three months to resolve any issues before any purported violation may even be brought to the attention of the Court. Such a procedure clearly does not subject Defendant Schedler to protracted or continuous litigation, and instead provides the SOS with a means to resolve any issues regarding compliance before the matter comes before the Court and contempt charges could even be considered. Therefore, the SOS will not suffer any irreparable harm if no stay is granted. B. The Court s Permanent Injunction Does Not Require Preclearance The SOS also argues that he will be injured because he must obtain preclearance of the Court s Ruling before engaging in implementation of that Ruling. This argument is unavailing. 11

12 Case 2:11-cv JTM-JCW Document 456 Filed 03/05/13 Page 12 of 20 Preclearance is not required in this matter. As a general matter, changes to voting laws made by the State of Louisiana are subject to federal preclearance under Section 5 of the Voting Rights Act. 42 U.S.C. 1973c. However, as the Secretary acknowledges in his motion to stay, Doc at 24, the federal regulations provide an exemption where the voting change is prepared and ordered by the federal court. 28 C.F.R (a); see also Lopez v. Monterey County, 525 U.S. 266, 286 (1999) ( As a general rule, voting changes crafted wholly by a federal district court in the first instance do not require preclearance. (citing Connor v. Johnson, 402 U.S. 690 (1971))); McDaniel v. Sanchez, 452 U.S. 130, 147 (1981) ( the [Voting Rights] Act does not require the District Court to have its decisions precleared (citing Connor v. Johnson, 402 U.S. 690)); Connor v. Johnson, 402 U.S. at 691 ( A decree of the United States District Court is not within reach of Section 5 of the Voting Rights Act. ); Connor v. Johnson, 402 U.S. at 695 (Black, J., dissenting) (concurring with the majority as to the question of preclearance: Under our constitutional system it would be strange indeed to construe 5... to require that actions of a federal court be stayed and reviewed by the Attorney General or the United States District Court for the District of Columbia. ); Martin v. Augusta-Richmond County, Ga., Commission, 2012 WL , slip op. at *2 (S.D. Ga. 2012) ( [W]hen a federal court devises its own plan, the new plan does not require federal preclearance. ) (citing Lopez v. Monterey County, 525 U.S. 266). Here, the Court has indeed prepared and ordered changes. The Court s Ruling explains the various responsibilities and obligations of the SOS under the NVRA, Doc. 436 at 30-31, and made specific findings that the SOS has violated and is violating its responsibilities under Section 7 of the NVRA in the following ways: (1) has periodically revised and updated training materials, but does not engage in any other measures to ensure that individual public assistance offices are complying with 12

13 Case 2:11-cv JTM-JCW Document 456 Filed 03/05/13 Page 13 of 20 their responsibilities under the NVRA ; (2) has provided inconsistent and inaccurate trainings to DHH and DCFS, including by advising that DHH clients were only afforded an opportunity to register to vote only if DHH clients appeared in person at a DHH office (contrary to the Court s partial summary judgment ruling in May, 2012); 5 and (3) does not advise DCFS or DHH with regard to distributing voter registration application forms to clients who did not respond to the voter declaration question (contrary to the Court s ruling that both agencies violated the NVRA by so failing to distribute). Doc. 436, at 28. The Court then ordered that, in accordance with its findings of fact and law, the SOS must maintain in force and effect its policies, procedures, and directives, as revised, relative to its responsibilities under the NVRA; and to the extent that the SOS was not in substantial compliance with the requirements of the NVRA as laid out in the findings of fact and law, that the SOS must implement any necessary policies, procedures and directives to achieve compliance by March 15, Doc. 437, at 2-3. In doing so, the Court ordered the SOS to maintain and remedy, respectively, the compliance efforts and failures already enumerated, i.e. to (1) update training materials and engage in other efforts as necessary to ensure compliance by public assistance agencies; (2) provide regular and accurate trainings, including by training in accordance with the Court s interpretation of the NVRA s requirements; and (3) properly advise the agencies in accordance with the Court s interpretation of the NVRA requirements, including with respect to the requirement to provide voter registration services during remote transactions and what is required when a client does not answer the voter registration question. Such changes are clearly court ordered. Thus where, as here, a federal court requires voting changes to comply with federal law those changes do not have to be precleared. It is only where a state or local authority whether 5 Ferrand v. Schedler, 2012 WL (E.D. La. May 3, 2012), Doc

14 Case 2:11-cv JTM-JCW Document 456 Filed 03/05/13 Page 14 of 20 legislative, executive, or judicial exercises its discretion or follows state or local law or policy that voting changes must be precleared. Compare Wesch v. Hunt, 785 F. Supp (S.D. Ala. 1992), aff d 504 U.S. 902 (1992) (holding that the court s ordered plan, which did not reflect state policy, did not need to be precleared), with McDaniel v. Sanchez, 452 U.S. 130 (1981) (holding that when a court orders the adoption of a redistricting plan submitted by the state legislature, that plan must be precleared). This distinction grows largely from separation of powers concerns. Lopez v. Monterey County, 525 U.S. at 286. Here, the Court s Ruling falls firmly into the first category; because it has ordered the Defendants to comply with federal law, its ruling does not reflect a state policy or law, and thus need not be precleared. Moreover, even if preclearance were required, this argument would be unavailing. This Court issued its Ruling on January 23, There is no indication that the SOS has even begun the preclearance process. Any inability to obtain preclearance by March 15 th is the SOS s own fault. If additional time is necessary for preclearance, the SOS should have sought leave from the Court to file the required certification of compliance after preclearance was obtained, just as DHH sought and obtained an extension to certify its own compliance. The SOS should not benefit from his failure to do so by having it qualify as a reason to stay this Court s Ruling for the entire length of the appeal. The SOS has not offered any credible reasons why he will suffer irreparable injury unless a stay is granted and, therefore, he has failed to meet his burden of showing why this factor would weigh in favor of granting a stay. IV. ISSUING A STAY WILL SUBSTANTIALLY INJURE THE OTHER PARTIES IN THIS LITIGATION While the SOS cannot satisfy his burden of showing why he will be injured unless a stay is granted, it is clear that the Plaintiffs, Luther Scott and the Louisiana State Conference of the 14

15 Case 2:11-cv JTM-JCW Document 456 Filed 03/05/13 Page 15 of 20 NAACP ( Louisiana NAACP ), will be injured if a stay is granted. The SOS is responsible for compliance for the State of Louisiana under the NVRA. See Doc. 436, at 31. The SOS must do more to enforce the NVRA in Louisiana beyond publishing a training manual on NVRA compliance and conducting sporadic and faulty training sessions. Doc. 436, at 32. Compliance with Section 7 of the NVRA in Louisiana would necessarily suffer if the Court were to grant the SOS s request and relieve the SOS of any responsibilities in enforcing Section 7 of the NVRA during the pendency of the SOS s appeal. As this Court held in its Ruling, the SOS is the chief election officer and, therefore, is ultimately responsible for compliance with Section 7 in Louisiana. While it appears that both DHH and DCFS are taking meaningful and important steps to ensure that their agencies are compliant with Section 7 of the NVRA, without meaningful oversight and guidance provided by the SOS the success of these efforts will be limited. For example, as made clear by this Court s Ruling, the NVRA requires that the chief election officer conduct regular trainings sessions that properly explain the requirements of implementing Section 7. See Doc. 436, at 32. If the SOS were completely relieved of his responsibilities during the pendency of this appeal, DHH and DCFS will not have the benefit of proper and regular trainings offered by the SOS. Both Mr. Scott and the Louisiana NAACP will be injured if there continues to be poor or faulty compliance with the NVRA in Louisiana, and therefore, they will be injured if a stay is granted. Mr. Scott continues to be a recipient of the Supplemental Nutritional Assistance Program. Mr. Scott, therefore, will continue to engage in covered transactions with DCFS related to that program and will continue to be in a position where the NVRA requires that he be offered voter registration consistent with the requirements of Section 7. See 42 U.S.C. 1973gg- 5(A)(6)(A)-(C). He will be further harmed if during these transactions he is not properly offered 15

16 Case 2:11-cv JTM-JCW Document 456 Filed 03/05/13 Page 16 of 20 the opportunity to register to vote or update his registration as required by the Court s Ruling. There is a particular risk of further harm to Mr. Scott because he has moved frequently and therefore, it is highly likely that at some point during the pendency of the SOS s appeal Mr. Scott will need to update his voter registration to ensure that he is registered to vote properly at his then-current address. Similarly, the Louisiana NAACP will also be harmed by a stay because it continues to have an interest in ensuring that all citizens in Louisiana are properly registered to vote, particularly low-income citizens. As explained, if the Court grants the SOS s request and the SOS is completely relieved of his responsibilities under the NVRA during the pendency of this appeal, the level of compliance with Section 7 in Louisiana will suffer. In this circumstance, the Louisiana NAACP will not be assured that low-income citizens in Louisiana are properly being offered the opportunity to register to vote at public assistance agencies. The Louisiana NAACP, therefore, will be forced to continue to expend resources (such as its volunteers time) on registering low-income individuals at public assistance offices. V. PUBLIC INTEREST WOULD BE SERVED IF THE COURT DOES NOT GRANT A STAY There is no question that the public interest would be better served if the Court denies the SOS s request for a stay. The Court s Ruling acknowledged that thousands of Louisiana citizens will be injured if Louisiana does not fully comply with Section 7 of the NVRA: Persons such as Luther Scott and organizations such the LSC NAACP will suffer hardship if there is a future violation of the NVRA by voter registration agencies and the Louisiana SOS. See Doc. 436, at 33. The purpose of the NVRA is to ensure that government does all it can to make voter registration widely and easily available. See S. Rep. No , at 13. And the purpose of 16

17 Case 2:11-cv JTM-JCW Document 456 Filed 03/05/13 Page 17 of 20 Section 7 is to ensure that voter registration is offered to individuals applying for public assistance, because these individuals are not likely to have an opportunity to register to vote through other means, such as at the department of motor vehicles. See H.R. Rep. No , at 15 (1993) (House-Senate Conference Report). If there continues to be incompliance with Section 7 compliance in Louisiana because the SOS is relieved of his responsibilities to ensure proper compliance during the pendency of the appeal, the purposes of the NVRA will not be served and low-income citizens of Louisiana will suffer because they will continue to be denied a meaningful opportunity to register to vote. The changes ordered by the Court s Ruling will ensure that the mandates of Section 7 are complied with in Louisiana and that Louisiana s poorest citizens have an opportunity to register to vote. Indeed, this Court s Ruling will ensure that Defendants maintain policies that have already resulted in a major spike in public agency voter registration in Louisiana. The SOS argues that the public interest supports granting a stay because, in his view, this Court s Ruling would erect barriers to participation programs by optional voter registration agencies in Louisiana. See Doc 445-1, at This argument has no merit because the Court s Ruling will have no impact on voluntary voter registration programs operated by optional voter registration agencies in Louisiana. The SOS states in his papers [a]ll designated voter registration agencies, whether mandatory, optional or with consent, are bound to comply 1973gg-5(a)(6). This statement is wrong, as the requirements of Subsection (a)(6) do not apply to all voter registration agencies, but only mandatory voter registration agencies. As this Court has previously held, the requirements of Subsection (a)(6) only apply to voter registration agencies that provide service or assistance. See 1973gg-5(a)(6); Ferrand v. Schedler, 2012 WL , at *8-9, Doc. 212, at 15-16, (holding that the voter registration requirements of 17

18 Case 2:11-cv JTM-JCW Document 456 Filed 03/05/13 Page 18 of 20 subsection (a)(6) do not apply to all voter registration agencies). This Court held that the additional and more particularized obligations concerning the distribution of materials established by subsection (a)(6) are applicable to mandatory voter registration agencies such as DHH and DCFS. Id. These requirements do not apply to optional voter registration agencies, such as public/private colleges and universities, public/private high schools, and municipalities, which do not provide public assistance or disability services. There is absolutely nothing in the Court s Ruling that addresses programs operated by these types of optional voter registration agencies. The SOS offers no other reason why the public interest would be served by a stay. The SOS clearly has not met his burden to establish that the public interest would be advanced by a stay. CONCLUSION The SOS s request for a stay pending his appeal in this matter does not meet any of the four factors, and he has offered no compelling argument for why this Court should grant his request. Plaintiffs, therefore, respectfully request that this Court deny his request. Respectfully submitted, /s/ Sarah Brannon 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 Dale E. Ho (dho@naacpldf.org)* Natasha M. Korgaonkar (nkorgaonkar@naacpldf.org)* Debo P. Adegbile 18

19 Case 2:11-cv JTM-JCW Document 456 Filed 03/05/13 Page 19 of 20 Elise C. Boddie Ryan P. Haygood NAACP Legal Defense & Educational Fund, Inc. 99 Hudson Street, Suite 1600 New York, NY Ronald Lawrence Wilson Ronald L. Wilson, Attorney at Law 701 Poydras Street, Suite 4100 New Orleans, LA Michael B. de Leeuw Israel David Erica Sollie Jesse Ryan Loffler David S. Yellin Fried, Frank, Harris, Shriver & Jacobson LLP One New York Plaza New York, NY *MOTION FOR ADMISSION PRO HAC VICE GRANTED Attorneys for Plaintiffs 19

20 Case 2:11-cv JTM-JCW Document 456 Filed 03/05/13 Page 20 of 20 CERTIFICATE OF SERVICE I hereby certify that on the 5th of March, 2013, I electronically filed the foregoing Plaintiffs Memorandum in Opposition to Defendant Schedler s Motion for Stay Pending Appeal 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/ Sarah Brannon Project Vote 1350 Eye Street NW, Suite 1250 Washington, DC