Case 2:11-cv JTM-JCW Document 428 Filed 11/19/12 Page 1 of 28 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA

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1 Case 2:11-cv JTM-JCW Document 428 Filed 11/19/12 Page 1 of 28 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA ROY FERRAND, LUTHER SCOTT, JR. and the LOUISIANA STATE CONFERENCE OF THE NAACP, for themselves and all other persons similarly situated, Plaintiffs, Civil Action No. 2:11-cv JTM-JCW 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, v. Defendants. PLAINTIFFS POST-TRIAL BRIEF

2 Case 2:11-cv JTM-JCW Document 428 Filed 11/19/12 Page 2 of 28 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii I. PLAINTIFFS HAVE STANDING UNDER THE NVRA...1 A. Plaintiff Luther Scott, Jr. Has Standing Mr. Scott has standing under the NVRA because he was denied his statutory right to receive a voter registration form at the time of his benefits transactions Mr. Scott was aggrieved and suffered actionable injury in three additional respects....5 B. The Louisiana State Conference of the NAACP Has Standing...9 II. THE EVIDENCE ADDUCED AT TRIAL CONCLUSIVELY ESTABLISHES THAT DEFENDANTS VIOLATED AND CONTINUE TO VIOLATE THE NVRA...14 A. DCFS and DHH Engaged and Continue to Engage in Numerous NVRA Violations...14 B. The SOS Violated His Duty to Coordinate the State s Obligations Under the Act...18 III. THE EVIDENCE ADDUCED AT TRIAL CONCLUSIVELY ESTABLISHES THE NEED FOR PROSPECTIVE INJUNCTIVE RELIEF...19 CONCLUSION...21 i

3 Case 2:11-cv JTM-JCW Document 428 Filed 11/19/12 Page 3 of 28 TABLE OF AUTHORITIES CASES Abernathy v. NCC Business Services, Inc., No. 2:11-CV-219, 2012 WL (N.D. Miss. Sept. 18, 2012)...3 Adar v. Smith, 597 F.3d 697 (5th Cir. 2010), overruled en banc on other grounds but affirmed as to standing, 639 F.3d 146 (5th Cir. 2011)...2 Association of Community Organizations for Reform Now v. Fowler, 178 F.3d 350 (5th Cir. 1999)...4, 9, 10, 11 Charles H. Wesley Educational Foundation, Inc. v. Cox, 408 F.3d 1349 (11th Cir. 2005)...3, 8, 9 Georgia State Conference of NAACP v. Kemp, 841 F. Supp. 2d 1320 (N.D. Ga. 2012)...8 Harkless v. Brunner, 545 F.3d 445 (6th Cir. 2008)...18 Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982)...2 Hedlund v. Hooters of Houston, No. 2:08-CV-45, 2008 WL (N.D. Tex. May 13, 2008)...4 In re Spector Red Ball, Inc., 73 B.R. 759 (Bankr. W.D. Tex. 1987)...6 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)...1 Mabary v. Hometown Bank, N.A., No. 4:10 cv 3936, 2012 WL (S.D. Tex. Aug. 30, 2010)...3 Ruiz v. Estelle, 503 F. Supp (S.D. Tex. 1980), amended in part and vacated in part on other grounds, 688 F.2d 266 (5th Cir. 1982)...6 ii

4 Case 2:11-cv JTM-JCW Document 428 Filed 11/19/12 Page 4 of 28 United States v. Hawkins, 566 F.2d 1006 (5th Cir. 1978)...6 Valdez v. Squier, 676 F.3d 935 (10th Cir. 2012), aff ing 2010 U.S. Dist. LEXIS (D.N.M. Dec. 21, 2010)...17 Warth v. Seldin, 422 U.S. 490 (1975)...1, 2, 3 STATUTES, RULES AND LEGISLATIVE MATERIALS 42 U.S.C. 1973gg et seq U.S.C. 1973gg-5(a)(6) U.S.C. 1973gg-5(a)(6)(A)...2, U.S.C. 1973gg-6(c)(1)(A) U.S.C. 1973gg S. Rep. No (1993)...8, 16 Fed. R. Evid. 201(b)(2)...6 Fed. R. Evid. 201(c)(2)...6 Fed. R. Evid. 201(d)...6 Fed. R. Evid. 201 advisory committee s note...6 La. Rev. Stat. Ann. 18: La. Rev. Stat. Ann. 18:101(A)(1)...5 La. Rev. Stat. Ann. 18:101(B)...5 La. Rev. Stat. Ann. 18: La. Rev. Stat. Ann. 18:110(C)...7 La. Rev. Stat. Ann. 18: iii

5 Case 2:11-cv JTM-JCW Document 428 Filed 11/19/12 Page 5 of 28 La. Rev. Stat. Ann. 18:521(C)(2)...7 OTHER AUTHORITIES Louisiana Secretary of State, Voter Portal, available at New Orleans City Council, Districts & Maps, District B Map, available at State of Louisiana, LouisianaMAP, Explore Louisiana, available at map.la.gov/explore_map.html...6, 7 iv

6 Case 2:11-cv JTM-JCW Document 428 Filed 11/19/12 Page 6 of 28 Plaintiffs submit this post-trial brief in accordance with this Court s Order, Doc Defendants many violations of the National Voter Registration Act, 42 U.S.C. 1973gg et seq. ( NVRA ), are set forth in Plaintiffs Proposed Findings of Fact ( PFF ) and Conclusions of Law ( PCL ), Doc The factual basis for these violations is largely uncontested, see PFF , and the legal basis of these violations is set forth at PCL This brief, therefore, focuses primarily on Plaintiffs standing. I. PLAINTIFFS HAVE STANDING UNDER THE NVRA A. Plaintiff Luther Scott, Jr. Has Standing 1. Mr. Scott has standing under the NVRA because he was denied his statutory right to receive a voter registration form at the time of his benefits transactions. Standing requires three elements: (1) injury in fact an invasion of a legally protected interest, (2) traceability a causal connection between the injury and the conduct complained of, and (3) redressability that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, (1992) (citations omitted). Where, as here, the suit is one challenging the legality of government action or inaction, and where the plaintiff is himself an object of the action (or foregone action) at issue[,]... there is ordinarily little question that the inaction has caused him injury, and that a judgment preventing or requiring the action will redress it. Id. at Crucially, the deprivation of a statutory right, by itself and without any other attendant harm, constitutes an actionable injury that gives rise to standing: [t]he actual or threatened injury required by Art. III may exist solely by virtue of statutes creating legal rights, the invasion of which creates standing.... Warth v. Seldin, 422 U.S. 490, 500 (1975) (citation omitted). Thus, the deprivation of a statutory right, by itself, can confer standing to sue even where the plaintiff would have suffered no judicially cognizable injury in the absence of statute. 1

7 Case 2:11-cv JTM-JCW Document 428 Filed 11/19/12 Page 7 of 28 Id. at 514 (emphasis added); see also Havens Realty Corp. v. Coleman, 455 U.S. 363, (1982) (holding that plaintiffs had standing because the defendants had violated the plaintiffs statutory right to receive accurate information about housing vacancies, even though the plaintiffs were without any intention of buying or renting a home, and suffered no injury beyond a statutory violation); Adar v. Smith, 597 F.3d 697, 706 (5th Cir. 2010) ( [A]llegations of injury flowing from the Registrar s failure to comply with the statute satisfy the prerequisites of injury-in-fact for Article III standing purposes. ), overruled en banc on other grounds but aff d as to standing, 639 F.3d 146 (5th Cir. 2011). Here, Section 7(a)(6)(A) of the NVRA creates a statutory right to receive a voter registration form with each application..., and with each recertification, renewal, or change of address form relating to public benefits unless the applicant, in writing, declines to register to vote. 42 U.S.C. 1973gg-5(a)(6)(A). The evidence at trial showed that Mr. Scott was deprived of this statutory right on three separate occasions when he did not receive such a form: First, when Mr. Scott applied for SNAP benefits in September 2009, see Oct. 16 Tr. at 12:15 17:7; 1 Pls. Ex. 146, at DCFS ; Second, when Mr. Scott applied for SNAP benefits again in December See Oct. 16 Tr. at 17:15 19:13, 40:7-11; Pls. Ex. 146, at DCFS Notably, Mr. Scott cannot be deemed to have declined on the basis of a signature, because he did not sign his December 2009 voter declaration form. See Oct. 16 Tr. at 19:7-13, 39:9-13, 40:23-24; Pls. Ex. 146, at DCFS 9422; and Third, when Mr. Scott conducted a change of address transaction in November See Oct. 16 Tr. at 19:24 21:9, 43:2-17; Pls. Ex. 146, at DCFS Crucially, Mr. Scott did not receive a voter declination form with YES or NO checkboxes during this transaction he, therefore, could neither check YES, nor even sign a form acknowledging his voter registration rights during this transaction. See Oct. 16 Tr. at 19:24 21:9; Pls. Ex. 146, at DCFS Trial transcripts are cited herein by date, e.g., the trial transcript for October 16, 2012 is cited as Oct. 16 Tr. at. 2 At the time, the Simplified Report form, OFS 4SR, did not include a voter declaration form. See Amended and Superseding Pre-Trial Order ( APTO ), Doc. 373, Uncontested Facts Contrary to 2

8 Case 2:11-cv JTM-JCW Document 428 Filed 11/19/12 Page 8 of 28 Each of these violations constitutes a concrete, particularized, non-hypothetical injury to Mr. Scott s legally protected interest in receiving a voter registration form. At trial, Defendants argued that Mr. Scott suffered no injury because at least for some period of time he was a validly registered voter. Although Defendants contention is actually incorrect as a legal matter, see infra at pps. 5-7, the issue of whether Mr. Scott was, in fact, a registered voter at some point is irrelevant. The only court to have considered this question held that a person who has been denied a statutory right under the NVRA has standing to bring suit, regardless of whether she was already registered to vote at that time: Defendants also claim that [the plaintiff,] Ms. Crawford lacks standing because as an already registered voter, she suffered no injury that can be traced to the state. We reject the argument. Ms. Crawford s alleged injuries are sufficient to show injury-in-fact for standing purposes. A plaintiff need not have the franchise wholly denied to suffer injury. Any concrete, particularized, non-hypothetical injury to a legally protected interest is sufficient. Moreover, where an alleged injury is to a statutory right, standing exists even where the plaintiff would have suffered no judicially cognizable injury in the absence of statute. Charles H. Wesley Educ. Found., Inc. v. Cox, 408 F.3d 1349, 1352 (11th Cir. 2005) (quoting Warth, 422 U.S. at 514) (emphases added). Like the plaintiff in Cox, Mr. Scott suffered an actionable injury through the deprivation of a statutory right under the NVRA and therefore has standing, irrespective of his registration status. No additional injury beyond the denial of Mr. Scott s statutory right to receive a voter registration form is required. 3 Significantly, the NVRA does not place any limits on which the claims of Defendants, the Simplified Report form, OFS 4SR, is covered by Section 7 of the NVRA because it can be used to report a change of address and is required to recertify benefits. Id. 57; see also Oct. 15 Tr. at 238:14-20; Oct. 16 Tr. at 21:19 22:6, Pls. Ex. 146, at DCFS In accord with the Supreme Court cases cited supra, courts within the Fifth Circuit have routinely found standing on the basis of a statutory violation, even where the plaintiff has not suffered any additional injury. See, e.g., Abernathy v. NCC Bus. Servs., Inc., No. 2:11 CV 219, 2012 WL , at *3 (N.D. Miss. Sept. 18, 2012) (finding that plaintiff had suffered injury-in-fact upon being deprived of the statutory right to notice under the Federal Debt Collection Practices Act, even in the absence of any 3

9 Case 2:11-cv JTM-JCW Document 428 Filed 11/19/12 Page 9 of 28 public assistance clients must be given a voter registration form anyone engaging in a covered benefits transaction has a statutory right to receive a voter registration form, irrespective of registration status. 4 See 42 U.S.C. 1973gg-5(a)(6). As the Fifth Circuit has explained, Congress intended to extend standing under the [NVRA] to the maximum allowable under the Constitution, by conferring standing on any person who is aggrieved by a violation of the NVRA, a term that evinces a congressional intent to cast the standing net broadly beyond the common-law interests and substantive statutory rights upon which prudential standing traditionally rested. Ass n of Cmty. Orgs. for Reform Now v. Fowler, 178 F.3d 350, (5th Cir. 1999) (citations and internal quotation marks omitted). Once Mr. Scott s injury is established, the other two elements of standing traceability and redressability are clear. The denial of Mr. Scott s right to receive a registration form is directly traceable to the Department of Children & Family Services ( DCFS ) indeed, it was DCFS itself that failed to fulfill the requirements of the NVRA during Mr. Scott s benefits transactions. Further, insofar as the Secretary of State ( SOS ) has coordinated and continues to coordinate the State s responsibilities under the NVRA, Stipulation 1, 1, and, in that capacity, has given DCFS incorrect advice about their obligations under the NVRA, id. 3, DCFS s violations of the NVRA are traceable to SOS as well. Finally, because Plaintiffs seek an actual damages ); Mabary v. Hometown Bank, N.A., No. 4:10-cv-3936, 2012 WL , at *3 (S.D. Tex. Aug. 30, 2010) (holding that the statutory violation of [the Electronic Fund Transfer Act] is, in and of itself, an injury-in-fact.... Congress may enact statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute ); cf. Hedlund v. Hooters of Houston, No. 2:08-CV-45, 2008 WL , at *2 (N.D. Tex. May 13, 2008) ( Congress can expand the range or scope of injuries that are cognizable for purposes of Article III standing by enacting statutes which create legal rights. ) (citation and internal quotation marks omitted). 4 The right to receive a voter registration form is distinct from the right to register to vote. Not only is Section 7 silent as to the latter right, but more fundamentally, public assistance agencies are not empowered to register voters; that responsibility is relegated to the various Registrars of Voters. Public assistance agencies are instead empowered and, indeed, mandated to provide their clients with voter registration forms. 4

10 Case 2:11-cv JTM-JCW Document 428 Filed 11/19/12 Page 10 of 28 injunction requiring compliance with the NVRA, there can be no doubt that the relief sought would redress the harm wrought by Defendants violations. 2. Mr. Scott was aggrieved and suffered actionable injury in three additional respects. Although unnecessary for standing purposes, the denial of Mr. Scott s right to receive a voter registration form resulted in three additional injuries, each of which forms an alternate and independent basis for standing. First, Mr. Scott suffered injury because he was denied an opportunity to register to vote. Contrary to Defendants assertions, he was not validly registered to vote at his home address at the time of his benefits transactions. Among the requirements to register to vote in Louisiana is that the would-be registrant be an actual bona fide resident of [Louisiana], and the parish, municipality, if any, and precinct in which he offers to register as a voter.... La. Rev. Stat. Ann. 18:101(A)(1) (emphasis added). A resident is defined as a citizen who resides in [Louisiana] and in the parish, municipality, if any, and precinct in which he offers to register and vote, with an intention to reside there indefinitely. La. Rev. Stat. Ann. 18:101(B) (emphasis added). Under the plain meaning of this statute, to be properly registered to vote, an individual must be registered to vote at his or her current residence address, and be a bona fide resident of the precinct where she is registered. Here, the evidence at trial demonstrated that, pursuant to Louisiana law, Mr. Scott was not properly registered during any of his benefits transactions with DCFS. In 2008, Mr. Scott registered to vote when he was living on St. Patrick Street, which is located in Ward 5, Precinct 16 in Orleans Parish. See SOS Ex. 7, at 1. When Mr. Scott applied for food stamps in September 2009, he was no longer living on St. Patrick Street, and he never moved back there. Oct. 16 Tr. at 15:4-8. Instead, he was living at 1301 S. Derbigny Street, Louisiana Id. at 12:18 13:7, 5

11 Case 2:11-cv JTM-JCW Document 428 Filed 11/19/12 Page 11 of 28 14:13 15:3; Pls. Ex. 146 at DCFS 9386, This address is located in Ward 2, Precinct 6 in Orleans Parish. 5 Next, when Mr. Scott applied for food stamps again in December 2009, he was using an address at 1803 Gravier Street. Pls. Ex. 146, at DCFS 9407, 9409; Oct. 16 Tr. at 43:2-18. That address is located in Ward 3, Precinct 3 in Orleans Parish. 6 Thus, neither of the addresses used by Mr. Scott during his 2009 benefits transactions is located in the precinct where he had registered to vote in 2008; at the time of those transactions, Mr. Scott was no longer an actual bona fide resident of Ward 5, Precinct 16, and was therefore no longer properly registered to vote. La. Rev. Stat. Ann. 18:101. Under limited circumstances, Louisiana law permits a person who has moved to vote even though that person is no longer properly registered at his current address. See La. Rev. Stat. Ann. 18:110(B)(2), (C). But this exception was not available to Mr. Scott at all times relevant 5 Compare Attachment A, State of Louisiana, LouisianaMAP, Explore Louisiana, Map of 1301 S. Derbigny St., available at map.la.gov/explore_map.html (click on Locate Address ; enter 1301 S. Derbigny St., New Orleans LA 70125) (last visited 11/9/12) (showing location of 1301 S. Derbigny St. at the corner of S. Derbigny St. and Erato St.), with Attachment B, New Orleans City Council, Districts & Maps, District B Map, available at (zoom in to approximately the center of the tan-colored area, to the area marked 2-6, which is to the left of the Super Dome) (showing precinct boundaries, and that the corner of S. Derbigny St. and Erato St. is located within Ward 2-6 ) (last visited 11/9/12). For the Court s convenience, these maps and other screenshots are included as attachments to this brief. The location of an address within a particular precinct is appropriate for judicial notice. See Fed. R. Evid. 201(b)(2) ( The court may judicially notice 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. ). This Court must take judicial notice if a party requests it and the court is supplied with the necessary information. Fed. R. Evid. 201(c)(2). It is irrelevant that this Court is being asked to take judicial notice post-trial: The court may take judicial notice at any stage of the proceeding. Fed. R. Evid. 201(d) (emphasis added); Fed. R. Evid. 201 advisory committee s note. Cf. United States v. Hawkins, 566 F.2d 1006, 1008 n.2 (5th Cir. 1978) (taking judicial notice of a public record that was not a part of the record in this case ); In re Spector Red Ball, Inc., 73 B.R. 759, 761 (Bankr. W.D. Tex. 1987) (taking judicial notice of Wisconsin law, despite the fact that no party tendered any evidence as to the law of the State of Wisconsin at the hearing ); Ruiz v. Estelle, 503 F. Supp. 1265, 1277 n.6 (S.D. Tex. 1980) (taking judicial notice of the number of inmates in a prison system, as requested by plaintiffs posttrial brief), amended in part and vacated in part on other grounds, 688 F.2d 266 (5th Cir. 1982). 6 See Attachment C, Louisiana Secretary of State, Voter Portal, available at (search by address ; enter Address for 1803 Gravier Street and Zip Code for ; press submit ) (last visited 11/9/12). The location of 1803 Gravier St. within Ward 3, Precinct 3 is appropriate for judicial notice. See supra n.5. 6

12 Case 2:11-cv JTM-JCW Document 428 Filed 11/19/12 Page 12 of 28 because it ends three months after an individual moves from one parish to another. See La. Rev. Stat. Ann. 18:110(C); see also La. Rev. Stat. Ann. 18:521(C)(2) ( after the three-month period, he shall no longer have the right to vote in the parish from which he has moved ). Mr. Scott moved, in early 2010, from Orleans Parish to an address on Condor Street, see Oct. 16 Tr. at 11:13-18, located in the city of Metairie in Jefferson Parish. 7 Three months after moving to Jefferson Parish, Mr. Scott no longer qualified for the exception under La. Rev. Stat. Ann. 18:110, and was no longer eligible to vote in Orleans Parish. He suffered actionable injury because he could not have voted at that time, and was denied an opportunity to receive a new voter registration form from DCFS. 8 Second, even if Mr. Scott had been validly registered to vote at the time of his benefits transactions which he was not he suffered an additional actionable injury because he was denied an opportunity to update his address information with the Registrar of Voters, and thereby to vote at his correct, local polling place. As the Eleventh Circuit explained in Cox, the NVRA specifically protects [the] right to use the federal registration form to notify the state of a change 7 See Attachment D, State of Louisiana, LouisianaMAP, Explore Louisiana, Map of Condor Street, available at map.la.gov/explore_map.html (click on Locate Address ; enter Condor Street, Metairie, LA ) (last visited 11/9/12) (showing Condor St. within Jefferson Parish); see also Doc , Scott Decl. 13, 18. The location of Condor Street within Jefferson Parish is appropriate for judicial notice. See, supra n The fact that Mr. Scott s St. Patrick Street registration apparently remained on the registration rolls is irrelevant; it does not reflect his legal right to actually vote in Louisiana. Moreover, Angie Rogers testimony concerning Mr. Scott s address was not based on any personal knowledge of his actual residence or his legal right to vote, but rather was based solely on the State s annual canvass, which, pursuant to La. Rev. Stat. Ann. 18:192, involves a review of information maintained by the U.S. Postal Service regarding changes of addresses. See SOS Ex. 7, at page 4 (noting that the address verification performed by the SOS was NCOA verified, meaning the National Change of Address records maintained by the U.S. Post Office); see also 42 U.S.C. 1973gg-6(c)(1)(A) (allowing states to maintain voter registration based on the change-of-address information supplied by the Postal Service ). The fact that Mr. Scott s name never appeared on the Postal Service s address change records is not evidence as to whether he ever moved, nor does it establish his legal residence for voting purposes. 7

13 Case 2:11-cv JTM-JCW Document 428 Filed 11/19/12 Page 13 of 28 of... address. 408 F.3d at Thus, [a] plaintiff need not have the franchise wholly denied to suffer injury, but rather can have standing under the NVRA based solely upon the injury of being unable to vote in her new home precinct. Id. A person who was already registered to vote, but who was denied the right to use the federal [voter] registration form to notify the state of her changed address may bring a claim under the statute. Id. at Here, Mr. Scott had an independent interest in updating his address information with the Registrar of Voters, so that he could vote at his correct precinct. As noted, the address at which Mr. Scott registered to vote in 2008, 510 N. St. Patrick Street, is matched with the polling station at Ward 5, Precinct 16. By the time of his benefits transactions, Mr. Scott had moved, and his addresses since that time were located in different precincts. Even now, his current address, 2515 Magnolia Street, is associated with a different polling station: Ward 11, Precinct Thus, even if Mr. Scott was already registered to vote at his St. Patrick s Street address, DCFS s failure to provide him with a voter registration form caused Mr. Scott an actionable injury, by denying him an opportunity to update his address information on file with the Registrar of Voters, and thereby to vote at his correct polling station. 9 Providing an opportunity to update one s voting address is a key purpose of the NVRA. See Ga. State Conf. of NAACP v. Kemp, 841 F. Supp. 2d 1320, 1332 (N.D. Ga. 2012) ( [T]he NVRA expresses a policy of increasing the number of eligible citizens who register to vote and implements that policy by reaching a wide range of citizens through offices they are likely to contact, especially after a change of address. ) (emphasis added); S. Rep. No , at 15 (1993) (Voters must have an opportunity to update their registrations each time they sought services at the government agency.... [A]ny application for[,] renewal, recertification, or change of address would serve as an update for that person s registration to vote... ). In fact, during the most recent federal elections cycle for which such data is available, more voter registration forms were submitted for the purposes of changing name, address, or party than for new registrations. See Pls. Ex. 222h, U.S. Election Assistance Comm n, The Impact of the National Voter Registration Act of 1993 on the Administration of Elections for Federal Office , at See Attachment E, Louisiana Secretary of State, Voter Portal, supra note 6 (search by address ; enter Address for 2515 Magnolia St. ; and Zip Code for ; press submit ) (last visited 11/9/12). The location of Magnolia St. within Precinct 14 is appropriate for judicial notice. See supra note 5. 8

14 Case 2:11-cv JTM-JCW Document 428 Filed 11/19/12 Page 14 of 28 Third, even if Mr. Scott had been validly registered to vote which he was not he suffered injury because DCFS denied him an opportunity to verify his registration status. The evidence at trial established that, prior to this litigation, Mr. Scott had not received any notification of his registration status, and therefore did not know that he was registered. See Oct. 16 Tr. at 25:18 26:2, 51:8-12, 52:4-10, 57:22 58:5, 62:5-7, 64:2-4. Mr. Scott s homelessness and lack of access to a telephone rendered it nearly impossible for him to verify whether the voter registration forms that he completed in 2008 were ultimately received and processed by the Registrar of Voters. See id. at 31:6-10, 52:4-10, 57:24 58:5. If DCFS had provided Mr. Scott with a voter registration form, he would have been able to send in a new form and thereby verify his registration status. The lack of such knowledge created a significant barrier to Mr. Scott s ability to exercise his right to vote. As a practical matter, DCFS s failure to provide Mr. Scott with a form caused him injury independent of his legal voter registration status. Cf. Cox, 408 F.3d at 1352 ( Causation in the standing context is a question of fact unrelated to an action's propriety as a matter of law. ) (emphasis added). B. The Louisiana State Conference of the NAACP Has Standing The Louisiana State Conference of the NAACP ( Louisiana NAACP ) established standing at trial. As the Fifth Circuit has previously held, for an organizational plaintiff to have standing in this context, that plaintiff must show that [1] it has expended resources registering voters in low registration areas [2] who would have already been registered if the [Defendants] had complied with the requirement under the NVRA that Louisiana must make voter registration material available at public aid offices. Fowler, 178 F.3d at 361. At trial, the Louisiana NAACP demonstrated that it met both requirements. First, the Louisiana NAACP has expended resources registering voters in low registration areas. Id. For 9

15 Case 2:11-cv JTM-JCW Document 428 Filed 11/19/12 Page 15 of 28 the purposes of establishing organizational standing, such resources can be in the form of money or time [expended] counteracting Louisiana s alleged failure [to comply with the NVRA]. Id. at 367 (emphasis added). Indeed, for a non-profit volunteer organization like the Louisiana NAACP, time is often the only resource available. See Oct. 16 Tr. at 181:4-9 ( If we waited to get paid for everything we did, we would do nothing. ); see also id. at 207:9-15, 221:9 222:6, 240:4-18 (explaining that not all Louisiana NAACP volunteers are paid). Here, Reverend Edward Taylor testified, and Defendants have adduced no contrary evidence, that the Louisiana NAACP expended volunteer time on voter registration, see, e.g., id. at 144:17-22, 150:10-18, 163:12 164:22, and that such efforts occurred in low-income communities where eligible voters were less likely to be registered. See Oct. 16 Tr. at 150:25 151:8 ( [W]e want to concentrate on the lower income community. ); see also id. at 144:20-22, 159:14-18, 170:7-16. Additionally, evidence at trial established that the Louisiana NAACP directs some voter registration activity towards public assistance clients. Id. at 151:19-23 (health units and food stamps offices); id. at 154:15-22, 225:22 226:8 (health units); id. at 159:5 160:6 (food stamps offices). These efforts to register voters at public assistance offices involved approximately two to four hours of volunteer time, see id. at 160:2-3, once a month for three months prior to the close of voter registration in See id. at 157:10-24, 227:8-10 (health unit); id. at 159:23-25 (food stamps office). This time amounts to the expenditure of definite resources within the meaning of Fowler, and compares favorably with the organizational plaintiff in that case, which conducted one voter registration drive a year... registering people... on Food Stamp lines. 178 F.3d at 361 (internal quotation marks omitted) Defendants attempt to rely on the testimony of Louisiana NAACP President Dr. Ernest Johnson to argue that the organization does not concentrate its resources on voter registration efforts for public 10

16 Case 2:11-cv JTM-JCW Document 428 Filed 11/19/12 Page 16 of 28 Second, evidence at trial demonstrated that the resources expended by the Louisiana NAACP on voter registration outside of public assistance offices could have [been] put to use registering voters that the NVRA, even properly implemented, would not have reached or toward any other use [that the Louisiana NAACP] wished.... Id. The Louisiana NAACP engages in a number of activities beyond voter registration at public assistance offices, and could have expended any portion of these resources on registering other voters or on different activities altogether. Compare Oct. 16 Tr. at 158:15-22, 160:11-16 (time spent on registering voters outside of health clinics and food stamps offices could have been spent on registering voters elsewhere), with id. at 160:18-24 (Louisiana NAACP shifted resources away from registration at DMVs after determining that most individuals at DMVs were already registered to vote). Defendants have offered no evidence to contradict the facts set forth above. Instead, Defendants argue: (i) that the Louisiana NAACP lacks sufficient financial documentation to demonstrate an expenditure of monetary resources; and (ii) that the Louisiana NAACP has no individual members, and is therefore not a proper plaintiff. Neither of these arguments has merit. Defendants argument concerning the financial documentation fails for at least three reasons. First, as discussed, supra, the Fifth Circuit has held that organizational standing for the purposes of the NVRA can be established based on a group s expenditure of volunteer time alone. Fowler, 178 F.3d at 361, 367; cf. PCL 361 (citing additional cases). Thus, the Louisiana NAACP need not have spent any money to maintain standing under Fowler; its expenditure of volunteer time alone, including that of Reverend Taylor, is enough for standing. assistance clients. But Dr. Johnson testified at trial that, although the Louisiana NAACP does not maintain an official policy specifically targeting public assistance clients, he himself is not involved with the day-to-day efforts to implement voter registration work; rather, he holds a high-level position as the President of the Louisiana NAACP and is not aware of the precise locations at which voter registration outreach is conducted. See Oct. 16 Tr. at 80:22 81:4, 109:25 110:4, 110:19-25; PFF

17 Case 2:11-cv JTM-JCW Document 428 Filed 11/19/12 Page 17 of 28 Second, a witness s testimony alone is sufficient to prove standing, regardless of whether that testimony could have been supported by accompanying documentation. See PCL 360 (citing cases). Indeed, the Louisiana NAACP does not possess detailed financial documentation concerning voter registration expenses, and never has. See Oct. 16 Tr. at 173:17-21, 176:23 177:9, 236:16 237:2 (Louisiana NAACP was not required to make written reports to National): id. at 77:4 79:1, 173:22 174:14 (annual budget does not contain line items and is not updated to reflect actual expenses). Here, Reverend Taylor s consistent, uncontradicted testimony is sufficient to establish that the Louisiana NAACP expended financial resources on voter registration efforts. See id. at 176:14-19, 180:20-23, 185:18-21, 198:15-20, 213:2-7. Third, several documents were entered into evidence reflecting the funding for voter outreach that was provided to the Louisiana NAACP by the NAACP s national office in See, e.g., id. at 172:23 173:3, 184: For example, the Louisiana NAACP received a Let s Do It Again grant, SOS Ex. 60, some of the resources from which were used for voter registration. Id. at 649, 655; Oct. 16 Tr. at 233:1 234:20 (explaining that door-to-door canvassing and voter registration were supported by this grant), Ex. 239, at 690 (same); Oct. 16 Tr. at 169:14 171:6 (voter registration was part of the Let s Do It Again campaign); see also id. at 203:11-24 (a purpose of the Let s Do It Again grant was phone banking); id. at 149:6-20 (voter registration is a component of phone banking); id. at 165:2-24; 234:21 235:7 (phone banking commenced in the week of August 16, 2010); Pls. Ex. 238, at 81 (same). Defendants next argue that the organizational structure of the Louisiana NAACP prevents it from having standing. This argument fails for two reasons. First, NAACP volunteers including Reverend Taylor can and did conduct voter registration work on behalf of the Louisiana NAACP itself, rather than on behalf of the local NAACP branches. See Oct. 16 Tr. at 12

18 Case 2:11-cv JTM-JCW Document 428 Filed 11/19/12 Page 18 of :22-24 ( I represented the Louisiana State Conference in everything I did when it came to voter registration. ); see also id. at 74:3 75:1, 128:22 129:12, 144:9-22, 145:21-24, 146:20 147:3, 153:11-15, 226:14 227:7. Moreover, the Louisiana NAACP conducts a voter education and registration workshop at its annual state conference, where it receives and distributes voter education materials to individual NAACP members. Id. at 107:9-25, 132:2 134:1. Thus, many resources used for voter registration work in 2010 were expended by the Louisiana NAACP itself, and not by the local branches. Id. at 172:15-22, 176: Second, even if voter registration drives had been conducted by volunteers for the local NAACP branches, the Louisiana NAACP would still have standing because it is comprised of those branches, id. at 75:2-11, and coordinates their work, id. at 69:23 70:6, 107:22-25, 108:8-19, 227:22 228:11. Any resources expended by the local branches are directly attributable to the Louisiana NAACP itself for standing purposes. See PCL 365 (citing cases). Moreover, the Louisiana NAACP has broad oversight authority over individual NAACP members and local branches. Oct. 16 Tr. at 120:3-11, 131:15-25 (Louisiana NAACP can recruit individual NAACP members to do voter registration work); id. at 118:14 119:10 (power to approve and revoke local branches charters); id. at 123:20 124:9 (authority to issue cease and desist letters to local branches); id. at 127:10-17 (authority to compel attendance at the annual state convention). Although individual NAACP members are, formally speaking, members of their local branches rather than the statewide organization, they are indirect members of the Louisiana NAACP, because each local NAACP branch is affiliated with and organized within the state organization. See id. at 87:1-2, 88:9 89:12, 119:22 120:11. In sum, although the Louisiana NAACP has standing in its own right, it also has standing based on the work of its local branches. 13

19 Case 2:11-cv JTM-JCW Document 428 Filed 11/19/12 Page 19 of 28 II. THE EVIDENCE ADDUCED AT TRIAL CONCLUSIVELY ESTABLISHES THAT DEFENDANTS VIOLATED AND CONTINUE TO VIOLATE THE NVRA A. DCFS and DHH Engaged and Continue to Engage in Numerous NVRA Violations Below is a chart setting forth DCFS s and DHH s most significant violations of the NVRA, with (i) citations to the evidentiary record regarding these violations; and (ii) citations to Plaintiffs Proposed Conclusions of Law explaining the legal foundation for these violations: Violation Description Factual Basis Legal Basis 1. Remote Transactions DCFS did not provide voter registration services with every remote transaction. DHH did not provide voter registration services with any remote transactions. 2. Renewals DCFS did not provide voter registration services with every renewal of benefits prior to October 31, Address Changes DCFS did not require its staff to distribute a voter preference form at every change of address transaction. (DCFS policy did not require that voter registration services were provided during any remote change of address transactions and DCFS change of address forms, such as the CCAP 10 and the OFS 4SR, did not contain voter preference questions). See Doc. 373, Am. Pre-Trial Order ( APTO ), Uncontested Fact No. 18. See also PFF See APTO, Uncontested Fact No. 29. See also PFF See Pls. Ex. 145 (DCFS s Resp. to Pls. 2nd Req. for Admissions, Resp. to Req. Nos. 1-2). See APTO, Uncontested Facts 5 and 30. See also Pls. Trial Exs.145 (DCFS s Resp. to Pls. 2nd Req. for Admissions, Resp. to Req. Nos. 3-4); 66a-c (policy did not include remote change of address); 104a-e (CCAP 10) and 146 at DCFS (OFS 4 SR). See also Oct. 15 Tr. at 139:8 143:15, 185:8 186:1; PFF 43, 46. See PCL See PCL See PCL DHH argues that it had no obligation to provide voter registration services during address changes when such transactions occurred only verbally, and did not employ the use of a paper form. 14

20 Case 2:11-cv JTM-JCW Document 428 Filed 11/19/12 Page 20 of 28 DHH did not provide voter registration services with address changes. See APTO, Uncontested Fact 35. See also PFF Specific Benefits Programs DCFS policy did not expressly require that voter registration be provided with the CCAP, KCSP, and DSNAP programs at the time the Complaint was filed, or with the LaCAP program until March See APTO, Uncontested Facts 31, 32, 50, and 51. See also Pls. Trial Exs. 66a-e, 91c-d, 94h, 94g, 104e-f; Oct. 15 Tr. at 134:12-20, 135:12-136:5, 139:8 140:2; 169:23 170:5; 193:10-14; and PFF 47-48, 82. See PCL Discretionary Distribution Policy DCFS policy currently grants employees discretion to give voter registration forms to clients, or to advise the client about the SOS website. See APTO, Uncontested Fact See also PFF 51-55; Pls. Exs. 66b-e; Oct. 15 Tr. at 184:4 185:5. See PCL Blank Voter Declaration Forms DCFS currently does not require staff to distribute voter registration forms unless the client checks YES See APTO, Uncontested Fact 40. See also PFF 56-58; Pls. Trial Ex 145 (DCFS s Resp. to Pls. 2nd Req. for Admissions, Resp. to Req. No. 6). See PCL DHH did not require staff to distribute voter registration forms unless the client checks YES See APTO, Uncontested Facts See also PFF That argument is unavailing. See PCL As DHH s own witness explained, changes of address reported verbally are recorded in an electronic form. See Oct. 15 Tr. at 103: The NVRA applies to any change of address form, and makes no exception for electronic forms. See 42 U.S.C. 1973gg- 5(a)(6)(A). DHH s witness also testified that, under the NVRA, DHH must offer people the opportunity to register to vote whenever they report an address change, without exception. Id. at 79:

21 Case 2:11-cv JTM-JCW Document 428 Filed 11/19/12 Page 21 of Failure to Provide a Voter Declaration Form with All Benefits Forms DCFS forms (LaCAP, CCAP and OFS 4SR) did not include a voter registration question. See APTO, Uncontested Facts 31, 32, 47, 49, 58, and 59. See also PFF 72-85; Pls. Exs. 91c-d, 94g-h, 99a-b, 104ef, Ex. 146 at DCFS (OFS 4SR); Oct. 15 Tr. at 134:7 136:21 (CCAP2); 139:8 141:4 (CCAP10); 143:13-15 (CCAP10); 143:17 145:7 (LaCAP 1a); 193:10-14 (LaCAP and CCAP); 238:14-19 (OFS 4SR). See PCL DHH Medicaid application and renewal forms did not include a voter registration question. See APTO, Uncontested Facts 65-66, 69-70, 87. See also PFF 90-99; Pls. Ex. 214; Oct. 15 Tr. at 100:8-18, 103: Non- Compliant Declaration Forms DCFS s online benefits application (CAFÉ) currently lacks disclaimers required by statute. See APTO, Uncontested Facts See also PFF 89; Oct. 17 Tr. at 20:15-21; 29:3-6. See PCL , 287. DHH s Motor Voter Form lacked a disclaimer that registering to vote will not affect the amount of assistance received. 14 See APTO, Uncontested Facts 71, 73. See also PFF ; Pls. Ex. 177; Oct. 15 Tr. at 49:10-24, 51:25 52:3. 13 Defendants argue that there is no obligation to incorporate voter declaration language directly into their benefits forms, as long as they provide their clients with a separate voter declaration form. DCFS, however, did not even have any separate voter declaration form available until March 24, 2011, after the Notice Letter was sent in this matter. See Pls. Ex. 101a. DHH similarly did not provide a voter declaration form along with each and every benefits application. See Oct. 15 Tr. at 103:10-12; PCL Moreover, the legislative record makes clear that the best practice is to incorporate voter declaration language directly into benefits forms. See S. Rep , at 16 ( [T]he bill encourages agencies to incorporate their forms to provide one form for the applicant, as an application for services and voter registration. Ideally, the agency-based program would work efficiently if one form were created. ). See also PCL DHH argues that the failure to use the phrase amount of assistance is not a material violation of the statute. That contention is unavailing. See PCL DHH s own witness also testified that this omission was material: [t]he main thing that we needed to include on here... is applying to register... would not affect the amount of benefits that they received. Oct. 15 Tr. at 82:14-17 (emphasis added). 16

22 Case 2:11-cv JTM-JCW Document 428 Filed 11/19/12 Page 22 of 28 DHH s WIC program did not advise clients of the disclaimers required by the statute. See APTO, Uncontested Facts See also PFF ; Oct. 17 Tr. at 6:20-22 (stipulation). 9. Equal Assistance DCFS checks benefits application forms and follows up for missing information, but currently does not follow up with voter registration forms. See PFF (citing DCFS SMF); APTO, Uncontested Fact 88; Pls. Exs. 66a-b; Oct. 15 Tr. at 173:13 176:22; 234:15 235:17; Oct. 17 Tr. at 17:25 18:7. See PCL DHH checks benefits application forms and follows up for missing information, but currently does not do so with voter registration forms. See PFF (citing DHH SMF); APTO, Uncontested Fact 89; Oct. 15 Tr. at 62:1 63:4. With respect to the issue of blank voter declaration forms (item 6 on the above chart), Defendants argue that a client need not be given a voter registration form unless she checks YES on a voter declaration form, but Defendants ignore the statute s requirement that a client be given a voter registration form unless she, in writing, declines to register to vote. 42 U.S.C. 1973gg-5(a)(6)(A) (emphasis added). The only courts to have considered this question have adopted this plain language reading of the statute, holding that the failure to check the YES box does not constitute a declination in writing. See Valdez v. Squier, 676 F.3d 935, (10th Cir. 2012), aff ing 2010 U.S. Dist. LEXIS (D.N.M. Dec. 21, 2010). See also PCL This is no trivial matter public assistance applications are long and complicated, containing dozens of questions. A client could easily miss a voter registration question or not understand it. For example, Mr. Scott testified that the process of applying for 15 Defendants contend that the process of checking benefits applications for completeness and following up with clients for missing information is not a form of assistance. That assertion is belied by the testimony at trial, see, e.g., Oct 15 Tr. at 234:25 235:17 (DCFS), as well as by Defendants own prior admissions that this procedure constitutes a form of assistance. See PCL (citing DCFS s and DHH s Rule 56.1 Statements). Moreover, DCFS conceded during trial it is now changing its policy to require follow-up assistance with voter registration applications. See Oct. 17 Tr. at 17:25 18:7. 17

23 Case 2:11-cv JTM-JCW Document 428 Filed 11/19/12 Page 23 of 28 public assistance is a complicated and confusing one, during which the issue of voter registration hastily treated and not squarely related to the benefits themselves is easily missed. See Oct. 16 Tr. at 40:23-24 ( Q: And you never saw this form when you were there? A: Correct ). Mr. Scott testified that he had no memory of being asked about voter registration during any of his interactions with DCFS prior to the filing of the Complaint, and that he did not understand that any of his forms related to voter registration. See id. at 13:8 14:9, 24:1-6, 34:23 35:5, 36:9-17, 36:25 37:16, 41:16-20, 42:12-17, 43:19-24, 58:9 60:2. The failure to check YES cannot be construed as a declination. B. The SOS Violated His Duty to Coordinate the State s Obligations Under the Act The evidence at trial established that the SOS failed to coordinat[e] the state s compliance with the NVRA pursuant to 42 U.S.C. 1973gg-8, by failing to take any action to prevent DCFS s and DHH s many violations of the statute. See PCL The SOS, as [the state s] chief election officer, is responsible for harmonious combination or implementation and enforcement of that program on behalf of [the state], Harkless v. Brunner, 545 F.3d 445, 452 (6th Cir. 2008) (emphasis added), 16 yet the office has not in the past and does not now monitor, enforce or compel compliance with the NVRA with respect to public assistance agencies See Stipulation 1, 2 (emphasis added); Oct. 15 Tr. at 27:10-28:8 (entering Stipulation 1 into the record). Additionally, the SOS directly contributed to several of DCFS s and DHH s violations of the statute. See Stipulation 1, 2 (admitting that SOS trained DCFS and DHH that they were not required to provide voter registration services during remote transactions); id. 3 (admitting that SOS advised public assistance agencies not to provide voter registration forms to clients who 16 The SOS argues that this holding from Harkless and other cases are based solely on state law, but that contention is simply incorrect; rather, the Sixth Circuit in Harkless found support for its ruling in both federal and state law on independent bases. See PCL

24 Case 2:11-cv JTM-JCW Document 428 Filed 11/19/12 Page 24 of 28 leave the voter declaration form blank); PFF 138 (SOS gave incorrect training advice regarding the equal assistance provision of the statute); see also PCL In fact, in at least one instance, the SOS was aware of, but failed to advise DHH of its non-compliance. See Oct. 17 Tr. at 82:5 83:10 (explaining the SOS s office determined that DHH s Motor Voter Clearance form was not compliant with the NVRA, but the SOS did not inform DHH of its violation or recommend changes to bring the form into compliance); see also Pls. Exs. 11, 177 (same). 17 In sum: the breadth of the agencies non-compliance with the statute, SOS s own stipulations, and other evidence at trial all conclusively demonstrate that the SOS violated his obligation to coordinate Louisiana s compliance with the NVRA. III. THE EVIDENCE ADDUCED AT TRIAL CONCLUSIVELY ESTABLISHES THE NEED FOR PROSPECTIVE INJUNCTIVE RELIEF The need for prospective injunctive relief is set forth in Plaintiffs PCL The trial testimony demonstrated that many of Defendants recently-initiated NVRA policy changes were only adopted because of this litigation, and thus clearly established that prospective injunctive relief with some limited but meaningful period of oversight is necessary. See, e.g., Oct. 15 Tr. at 51:25 52:3 (DHH amended benefits forms in response to litigation); Pls. Ex. 214 (cataloguing DHH policy changes adopted in response to litigation). These changes would not have occurred but for this lawsuit. But even more telling is the fact that, despite numerous policy changes over the past eighteen months since this suit was filed, Defendants are still not fully compliant with the statute. For example, DCFS s C-210 policy regarding NVRA practices has been revised three times 17 The SOS argues that it has no enforcement authority over DCFS and DHH, but in at least one circumstance, the SOS set official voter registration policies for the agencies. See Oct. 15 Tr. at 60:1 61:11 (explaining that DHH s policy for coding voter registration forms was determined by the SOS, over DHH s objection). In any event, regardless of the scope of its legal authority, the record is devoid of any effort by SOS to even attempt to ensure that DCFS and DHH complied with the statute. 19

25 Case 2:11-cv JTM-JCW Document 428 Filed 11/19/12 Page 25 of 28 since this lawsuit was filed, and yet the current policy is still not compliant with the NVRA, insofar as it grants DCFS personnel the discretion to advise clients about a website, instead of requiring the distribution of hard copy voter registration forms. See Pls. Ex. 66c-e; see also PCL Moreover, although Defendants witnesses testified that further ameliorative changes are currently planned, see, e.g., Oct. 17. Tr. at 17:14-24, 18 injunctive relief remains necessary to confirm that those planned changes are actually implemented, and implemented in conformity with the NVRA. Some period of oversight is necessary to ensure that Defendants recentlyadopted changes remain in effect, and that other future planned changes are actually enacted to bring Defendants into full compliance with the statute. Furthermore, as this Court observed, it is not sufficient for Defendants to simply change their policies; they must also notify their employees of these policy changes and train them accordingly. See Oct. 15 Tr. at 123:7-9; PCL Injunctive relief addressing training is therefore equally necessary. Finally, injunctive relief including monitoring and reporting of the numbers of voter registration applications completed through public assistance offices is necessary to ensure that changes in Defendants policies translate into effective policies on the ground. PCL DHH currently tracks data related to its Medicaid applications and finds this data useful for a number of purposes. See Oct. 15 Tr. at 48:3-11, 52:5-24. Monitoring data with respect to voter registration would be similarly useful. 18 DCFS in effect concedes that it is currently violating the NVRA because the CAFÉ system does not provide the required disclaimers with the voter registration questions, and provided testimony there is a current plan to change the voter registration language to include all the disclaimer language. See Oct. 17 Tr. at 20:15-21; 29:3-6. And, DCFS also concedes that its current policies with respect to equal assistance violate the NVRA; DCFS in fact provided testimony that it is changing its policies to require follow-up with clients when required information is missing from a submitted voter registration application. See Oct. 17 Tr. at 17:25 18:7. These and other ongoing violations show a pattern that DCFS is relying on Plaintiffs to provide notice of violations before they are addressed by Defendants. Therefore, Plaintiffs need a period of oversight to bring Defendants into full compliance and ensure they stay in full compliance. 20

26 Case 2:11-cv JTM-JCW Document 428 Filed 11/19/12 Page 26 of 28 CONCLUSION For the reasons set forth above, Judgment should be entered in favor of Plaintiffs. DATED: November 19, 2012 Respectfully submitted, /s/ Dale E. Ho NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. Debo P. Adegbile Ryan P. Haygood* Dale E. Ho* Natasha M. Korgaonkar* Leah Aden 99 Hudson Street, Suite 1600 New York, NY Telephone: (212) Facsimile: (212) *Motion For Admission Pro Hac Vice Granted PROJECT VOTE Sarah Brannon* Niyati Shah* Michelle Rupp* 1350 Eye St, NW, Suite 1250 Washington, DC Telephone: (202) Ext. 302 Facsimile: (202) *Motion For Admission Pro Hac Vice Granted FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP Michael de Leeuw* Israel David* Erica Sollie* Jesse Ryan Loffler* David Yellin* One New York Plaza 21

27 Case 2:11-cv JTM-JCW Document 428 Filed 11/19/12 Page 27 of 28 New York, New York Telephone: (212) Facsimile: (212) *Motion For Admission Pro Hac Vice Granted Ronald L. Wilson 701 Poydras Street Suite 4100 New Orleans, LA Telephone: (504) Facsimile: (504) Counsel for Plaintiffs 22

28 Case 2:11-cv JTM-JCW Document 428 Filed 11/19/12 Page 28 of 28 CERTIFICATE OF SERVICE I hereby certify that on November 19, 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 Courts CM/ECF system. I further certify that I mailed the foregoing document and the notice of electronic filing 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 NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. Dale E. Ho * 99 Hudson Street, Suite 1600 New York, NY Telephone: (212) Facsimile: (212) dho@naacpldf.org *Motion For Admission Pro Hac Vice Granted Counsel for Plaintiffs 1

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