Case 2:11-cv JTM-JCW Document 445 Filed 02/22/13 Page 1 of 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

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1 Case 2:11-cv JTM-JCW Document 445 Filed 02/22/13 Page 1 of 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA LUTHER SCOTT, JR., and LOUISIANA STATE CONFERENCE OF THE NAACP CIVIL ACTION NO. 2: JTM - JCW v. TOM SCHEDLER in his official capacity as the Louisiana Secretary of State, SUZY SONNIER, 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 MOTION FOR STAY PENDING APPEAL AND TO DISPENSE WITH BOND NOW INTO COURT, through undersigned counsel, comes Tom Schedler, in his official capacity as Louisiana Secretary of State ( Secretary of State ) who moves the Court as follows: 1. The Secretary of State respectfully moves the court to stay the Permanent Injunction entered on January 23, 2013 (Doc. 437) until the legal question, NVRA applicability to remote transactions with public assistance agencies, at the heart of the Secretary s involvement in the litigation can be determined by the Fifth Circuit Court of Appeals. 2. Implementing a novel approach to NVRA voter registration requirements, unexamined as yet by any appellate court, will result in irreparable harm to the conduct of Louisiana s registration scheme and cause the Secretary to breach federal preclearance requirements mandated by Section -1-

2 Case 2:11-cv JTM-JCW Document 445 Filed 02/22/13 Page 2 of of the Voting Rights Act of The judgment further exposes the Secretary to contempt and ongoing litigation without sufficient guidance as to what acts are required of the Secretary. The injunction as issued is void for failure to comply with F.R.C.P. 65(d)(1). 4. Secretary Schedler suggests that a substantial case can be made on the merits of the appeal on serious legal issues involving the construction and application of the NVRA and that the public interest mitigates in favor of a stay of the injunction with respect to the Secretary of State, particularly where the stay will have little, if any, impact on the other parties to the litigation Competing views on substantially similar claims on the application of the NVRA and 3 standing are, as of this writing, on the way to appellate review. Precipitous application of procedures and an interpretation of the NVRA that may well be overturned by the appellate courts is ill advised, and the Court should exercise its discretion in favor of granting a stay of the injunction as to the Secretary of State. 6. A bond is not necessary to secure the Plaintiffs rights during the pendency of the appeal, and 1 See, 42 U.S.C. 1973c and 28 C.F.R. 51.2, et seq. (D. Nev 2012) 2 See, Helms v. Cody, C.A. No , 1994 U.S. Dist. LEXIS 11222, (E.D. La. 1994) 3 National Council of La Raza v. Miller, No. 3:12-cv-316, 2012 U.S. Dist. LEXIS

3 Case 2:11-cv JTM-JCW Document 445 Filed 02/22/13 Page 3 of 4 the Secretary asks that the court dispense with a bond. 7. A memorandum is filed herewith in further support of this motion. WHEREFORE, Tom Schedler, in his official capacity as Louisiana Secretary of State, prays that the stay pending appeal be granted in this matter; or alternatively that a stay be granted until the Fifth Circuit has ruled on a motion for stay to be filed there in the event this stay request is denied by this court; and further that the court dispense with a bond during the stay. Defendant further prays for all full, general and equitable relief. Respectfully Submitted: s/celia R. Cangelosi CELIA R. CANGELOSI Bar Roll No Government Street, Suite 101 P.O. Box 3036 Baton Rouge, LA Telephone: (225) Facsimile: (225) celiacan@bellsouth.net s/carey T. Jones CAREY T. JONES Bar Roll No Del Este Avenue, Suite 803 P.O. Box 700 Denham Springs, LA Telephone: (225) Facsimile: (225) tjones@tomjoneslaw.com Attorneys for Defendant, Tom Schedler in his official capacity as Louisiana Secretary of State -3-

4 Case 2:11-cv JTM-JCW Document 445 Filed 02/22/13 Page 4 of 4 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the above and foregoing Motion For Stay Pending Appeal and To Dispense With Bond was sent electronically or via U.S. First Class Mail, postage prepaid, to the following: Ronald L. Wilson (cabral2@aol.com) 701 Poydras Street, Suite 4100 New Orleans, LA Dale Ho (dho@naacpldf.org) Natasha Korgaonkar (nkorgaonkar@naacpldf.org) Ryan P. Haygood (rhaygood@naacpldf.org) 99 Hudson Street, Suite 1600 New York, NY Niyati Shah (nshah@projectvote.org) Michelle Rupp (mrupp@projectvote.org) Sarah Brannon (sbrannon@projectvote.org) th 737 ½ 8 Street SE Washington, DC Israel David (israel.david@friedfrank.com) Michael B. De Leeuw (michael.deleeuw@friedfrank.com) Erica Sollie One New York Plaza New York, NY Charles L. Dirks, III (charlie_dirks@excite.com) P.O. Box 2667 Baton Rouge, LA Stephen R. Russo (stephen.russo@la.gov) David McCay (david.mccay@la.gov) Douglas L. Cade (douglas.cade@la.gov) Kimberly L. Humbles (kim.humbles@la.gov) Rebecca Claire Clement (rebecca.clement@la.gov) Brandon James Babineaux (brandon.babineaux@la.gov) Department of Health & Hospitals Bureau of Legal Services, Bienville Blvd. th 628 N. 4 Street Baton Rouge, LA Harry Joseph Philips, Jr. (skip.philips@taylorporter.com) Amy C. Lambert (amy.lambert@taylorporter.com) Katia Desrouleaux (katia.desrouleaux@taylorporter.com) 451 Florida St., 8th Floor P. O. Box 2471 Baton Rouge, LA Celia Alexander (celia.alexander@la.gov) Eboni Townsend (eboni.townsend@la.gov) Bureau of General Counsel Louisiana Department of Children and Family Services P.O. Box 1887 Baton Rouge, LA nd Baton Rouge, Louisiana, this 22 of February, s/celia R. Cangelosi CELIA R. CANGELOSI -4-

5 Case 2:11-cv JTM-JCW Document Filed 02/22/13 Page 1 of 28 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA LUTHER SCOTT, JR., and LOUISIANA STATE CONFERENCE OF THE NAACP CIVIL ACTION NO. 2: JTM - JCW v. TOM SCHEDLER in his official capacity as the Louisiana Secretary of State, SUZY SONNIER, 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 MEMORANDUM IN SUPPORT OF MOTION OF DEFENDANT, TOM SCHEDLER, IN HIS OFFICIAL CAPACITY AS LOUISIANA SECRETARY OF STATE, FOR STAY PENDING APPEAL

6 Case 2:11-cv JTM-JCW Document Filed 02/22/13 Page 2 of 28 Introduction The Secretary of State respectfully moves the court to stay the Permanent Injunction entered on January 23, 2013 (Doc. 437) until the legal question, NVRA applicability to remote transactions with public assistance agencies, at the heart of the Secretary s involvement in the litigation can be determined by the Fifth Circuit Court of Appeals. Implementing a novel approach to NVRA voter registration requirements, unexamined as yet by any appellate court, will result in irreparable harm to the conduct of Louisiana s registration scheme and cause the Secretary to breach federal preclearance requirements mandated by Section 1 5 of the Voting Rights Act of The judgment further exposes the Secretary to contempt and ongoing litigation without sufficient guidance as to what acts are required of the Secretary. Secretary Schedler suggests that a substantial case can be made on the merits of the appeal on serious legal issues involving the construction and application of the NVRA and that the public interest mitigates in favor of a stay of the injunction with respect to the Secretary of State, particularly where the stay will have little, if any, impact on the other parties to the litigation. 2 Competing views on substantially similar claims on the application of the NVRA and standing are, 3 as of this writing, on the way to appellate review. Precipitous application of procedures and an interpretation of the NVRA that may well be overturned by the appellate courts is ill advised, and the Court should exercise its discretion in favor of granting a stay of the injunction as to the Secretary of State. Permanent Injunction On February 19, 2013, the Secretary of State filed Notice of Appeal (Doc 442) to the Fifth Circuit of various rulings by the district court, including the Permanent Injunction (Doc 437) rendered January 23, See, 42 U.S.C. 1973c and 28 C.F.R. 51.2, et seq. 2 See, Helms v. Cody, C.A. No , 1994 U.S. Dist. LEXIS 11222, (E.D. La. 1994). 3 National Council of La Raza v. Miller, No. 3:12-cv-316, 2012 U.S. Dist. LEXIS (D. Nev 2012). -1-

7 Case 2:11-cv JTM-JCW Document Filed 02/22/13 Page 3 of 28 The Permanent Injunction orders: That the Secretary of State is directed to maintain in force and effect his or her policies, procedures, and directives, as revised, relative to the implementation of the National Voter Registration Act with respect coordination of the National Voter Registration Act within Louisiana. As to any program for which the Secretary has not achieved substantial compliance with the provisions of the National Voter Registration Act, 42 U.S.C. 1973gg, et. seq., the Secretary is 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. The district court will retain jurisdiction for one year from January 23, 2013, and provides a specified method for plaintiffs to seek enforcement of the terms of the Order. The Permanent Injunction (Doc 437) also finds the Secretary of State and other defendants have violated the requirements of the National Voter Registration Act, 42 U.S.C gg, et. seq. Findings of Fact and Conclusions of Law The Findings of Fact and Conclusions of Law (Doc 436), a separate document signed January 22, 2013, make findings of fact with respect to NVRA violations by the Secretary of State (Doc 436, pp ): 1. Other than providing training and publishing materials, the SOS does not engage in any other measures to ensure that public assistance offices are complying with their responsibilities under the NVRA. 2. The SOS training provided to agencies such as DHH and DCFS, have been inconsistent and inaccurate. a. As of 2011, the SOS did not have any requirement as to the number of trainings provided to DCFS or DHH per year. b. From the beginning of 2008 to the spring of 2011, the SOS did not conduct any NVRA training whatsoever for DCFS. 3. The trainings that the SOS conducted for DHH personnel in July 2009 and 2011 advised DHH personnel that DHH clients were only afforded an opportunity to register to vote only if DHH clients appeared in person at DHH offices. 4. The SOS 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. 5. Prior to April, 2011 the Defendants were in violation of the NVRA mandates. Since the filing of this lawsuit, however, the Defendants have made substantial progress in complying with the NVRA. The conclusions of law with respect to NVRA violations by the Secretary of State are found at Doc -2-

8 Case 2:11-cv JTM-JCW Document Filed 02/22/13 Page 4 of , pp : 1. The Secretary of State is responsible for: a. coordination of state responsibilities under the NVRA; and b. implementing the state s functions under the NVRA. 2. The Secretary of State is ultimately responsible for the compliance for the state of Louisiana under the NVRA. 3. The Secretary of State may not delegate its responsibilities under the NVRA thereby avoiding responsibility if the NVRA is not conducted reasonably. At pages 10 and 18 of Doc 436, the district court finds the Secretary of State in effect vicariously liable for NVRA violations of DCFS and DHH insofar as the SOS is required to coordinate responsibilities under the NVRA. MOTION FOR STAY The Secretary of State moves this court, pursuant to F. R. Civ. P. Rule 62, for stay of the Permanent Injunction pending appeal, or alternatively until such time as the Fifth Circuit has ruled on a motion for stay to be filed there in the event a stay is denied by this court. The factors for evaluating the appropriateness of a stay pending appeal are well-established: (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, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987); see also Nken v. Holder, 556 U.S. 418, 426, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009). I. LIKELIHOOD (SUBSTANTIAL SHOWING) OF SUCCESS ON THE MERITS The State must make a strong showing that [it] is likely to succeed on the merits. Hilton, 481 U.S. at 776. In assessing this standard, the movant need not always show a probability of success on the th merits. Ruiz v. Estelle, 650 F.2d 555, 565 (5 Cir. 9181). [I]nstead, the [State] need only present a -3-

9 Case 2:11-cv JTM-JCW Document Filed 02/22/13 Page 5 of 28 substantial case on the merits when a serious legal question is involved and show that the balance of the equities weighs heavily in favor of granting the stay. Id.; see also Nken, 556 U.S. at 434. A. The Injunction Is Void For Failure To Comply With F. R. Civ. P. Rule 65(d) Federal Rule of Civil Procedure Rule 65(d)(1) mandates the content and scope of injunctions: (1) Contents. Every order granting an injunction and every restraining order 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. The Permanent Injunction issued against the Secretary of State is of no effect for failure to comply with Rule 65(d)(1). The permanent injunction is no more than an obey the law as to the entire NVRA (not just Section 7 at issue in this proceeding) to the unspecified extent not already done as to unspecified programs. th In Payne v. Travenol Laboratories, Inc., 565 F.2d 895, 898 (5 Cir. 1978), the Fifth Circuit held Such obey the law injunctions cannot be sustained. See also Keyes v. School District No. 1, Denver th Colorado, 895 F.3d 659, 668 (10 Cir. 1990). In Wynn Oil Company v. Purolator Chemical Corporation, th 536 F.2d 84, 86 (5 Cir. 1976), the Fifth Circuit held: The injunction must give the party adequate notice of the wrong enjoined. Professor Moore states that (l)oose injunction orders are neither easily obeyed nor strictly enforceable, and are apt to be oppressive. Hence Rule 65(d) further provides that every restraining order and injunction be specific in terms.... In all three cases, the appellate courts reversed injunctions failing to satisfy the Rule 65(d)(1) requirement of specificity. The rule embodies the elementary due process requirement of notice. The drafting standard established by Rule 65(d) is that an ordinary person reading the court s order should be able to ascertain from the document itself exactly what conduct is proscribed. United States Steel Corporation v. th United Mine Workers of America, 519 F.2d 1236, 1246 and fn. 20 (5 Cir. 1975). -4-

10 Case 2:11-cv JTM-JCW Document Filed 02/22/13 Page 6 of 28 The United States Supreme Court has recognized the necessity of Rule 65(d) compliance: As we have emphasized in the past, the specificity provisions of Rule 65(d) are no mere technical requirement. The Rule was designed to prevent uncertainty and confusion on the part of those faced with injunctive orders, and to avoid the possible founding of a contempt citation on a decree too vague to be understood. *** Since an injunctive order prohibits conduct under threat of judicial punishment, basic fairness requires that those enjoined receive explicit notice of precisely what conduct is outlawed. Schmidt v. Lessard, 414 U.S. 473, 476 (1974). The injunction orders the Secretary of State to implement procedures, etc. for unspecified programs to achieve substantial compliance with the entire NVRA. No specifics nor reasonable detail are provided. The injunction says no more than obey the law. The injunction as written fails to meet the Rule 65(d)(1) requirements and is likely to be reversed on appeal. Further, if not stayed, this indefinite injunction will spur additional litigation during the time of the appeal, by the plaintiff filing motions to enforce the indefinite terms AND for possible contempt citations against the Secretary of State. The nonspecificity of the injunction leaves the Secretary of State to guess what programs are at issue and the areas where substantial compliance has not been achieved. Although the Complaint and trial involved only NVRA violations by/at public assistance agencies under Section 7 of the NVRA, the injunction addresses the entire NVRA, without limit to Section 7 violations. These are the very problems Rule 65 was designed to address. The failure to comply with Rule 65 should render the injunction void. B. The Court s Decision on the Applicability of Section 7 of the NVRA Represents a Novel Interpretation of the Act That Has Not Been Determined by The Appellate Courts, and a Substantial Case On the Merits Is Presented for Consideration on Appeal The applicability of the NVRA to remote transactions at designated voter registration agencies under Section 7 of the Act is the central and most substantial legal issue presented for appeal. As far as the 4 Secretary of State can determine, this issue has been decided by this and one other district court but has not been reviewed by an appellate court. This issue has been extensively briefed in this court, and further 4 Georgia v. Kemp, 841 F.Supp.2d 1320 (USDC, N.D. GA

11 Case 2:11-cv JTM-JCW Document Filed 02/22/13 Page 7 of 28 elaboration on the merits of the legal arguments is unnecessary for purposes of the motion to stay. 5 However, measured by the standard for determining whether to stay a judgment, there is little question that the remote issue is a serious legal question, not only in this case, but for elections officials nationwide. In fact, a case presently pending in the Middle District Louisiana would be determined in large 6 part by a decision on the remote transaction question. Absent a showing of harm to the other parties to the litigation, this issue alone is sufficient for a stay of the injunction pending appeal. C. Implementation The court erroneously concluded as a matter of law that the Secretary of State is responsible for implementing and ensuring compliance by DCFS and DHH with the NVRA, and for holding the Secretary of State in effect vicariously responsible for violations of the NVRA by those departments. Under the NVRA, the Secretary of State as Chief Elections Official is assigned the responsibility to coordinate responsibilities with other state agencies designated as voter registration agencies under Section 7. The court relied on Harkless v. Brunner, 545 F.3d 445 (6 Cir. 2008) for the proposition that the chief election official s responsibilities include enforcement. The Harkless court, however, relied upon Ohio state laws to find the enforcement powers by the Ohio Secretary of State. Ohio law empowers the Secretary to [c]ompel the observance of election officers in the several counties of the requirements of the election laws, id (M). Harkless, p Accordingly, even if the word coordination in the NVRA is truly vague, Ohio law makes it abundantly clear that the Secretary is responsible for the implementation and enforcement of Section 7. Ohio law also makes clear that she [the Secretary of State] has the authority to do so. Harkless, p (emphasis supplied) 5 th Per Ruiz v. Estelle, 650 F.2d 555, 565 (5 Cir. 1981), the remote issue presents a substantial case on the merits of a serious legal issue to be decided on the appeal. 6 United States v. J. Thomas Schedler, et al, CA No , M.D. La., JJB-RLB, which asserts claims substantially similar to those claims presented in the present action. -6-

12 Case 2:11-cv JTM-JCW Document Filed 02/22/13 Page 8 of 28 Similar empowerment or authority is not found in Louisiana law with regard to relations among agencies within the executive branch of government, which affords no enforcement powers nor confers any authority to the Secretary of State over DCFS or DHH. The court cites Louisiana law, La. R.S. 18:18(A)(2), (3), (8) as making the Louisiana Secretary of State responsible for prescribing uniform rules, regulations, forms and instructions related to voter registration and voter education. (Doc 436, p. 3) This authority only extends to rules to be applied uniformly by each registrar of voters in the state, La. R.S. 18:18(A)(3); the Secretary of State s authority is only to direct and assist the registrar of voters in the state, La. R.S. 18:18(A)(3); and the voter education 7 rules are to be implemented uniformly by each registrar of voters in the state, La. R.S. 18:18(A)(8). The Secretary of State has no rulemaking authority over any department within the state providing public 8 assistance, such as DCFS or DHH. th As the Eighth Circuit held in United States v. Missouri, 535 F.3d 844, 851 (8 Cir. 2008), enforcement under the NVRA is limited, The plain language of the NVRA provides a right of enforcement to only two categories of plaintiffs - the United States and [a] person who is aggrieved by a violation of [the NVRA]. The Eighth Circuit noted that the State of Missouri, like the Secretary of State here, would not necessarily be a person...aggrieved by a violation of the NVRA, and thus not entitled to enforcement thereof. The court cited United States v. Missouri for the proposition that the Louisiana Secretary of State may not delegate its responsibilities under the NVRA thereby avoiding responsibility if the NVRA is not conducted reasonably. (Doc 436, p. 32) What the court failed to note was that the responsibilities at issue 7 Under Louisiana law, La. R.S. 18:59, the registrars of voters are subject to the direction of the Secretary of State. Neither Louisiana law or federal law subjects either DCFS or DHH to the direction of the Secretary of State. 8 Louisiana law does afford the Secretary of State rulemaking authority over the Department of Public Safety and Corrections regarding registration at drivers license facilities, La. R.S. 18:114(I); but not regarding other NVRA voter registration agencies, La. R.S. 18:

13 Case 2:11-cv JTM-JCW Document Filed 02/22/13 Page 9 of 28 in the Missouri case were responsibilities the NVRA assigned to the state itself, specifically the duty under 42 U.S.C. 1973gg-6(a)(4) assigned to the state to conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists of eligible voters by reasons of - (A) the death of the registrant; or (B) a change in the residence of the registrant, in accordance with subsections (b), (c), 9 and (d) of this section, --not responsibilities assigned to voter registration agencies under Section 7 of the NVRA. Another cited case, United States v. Louisiana, Civ. No JJB, 2011 WL , at *6 (M.D. La. Dec. 1, 2011), also dealt with a duty designated to the state, not to a public assistance agency, the state s duty to designate voter registration agencies under 42 U.S.C. 1973gg-5(a)(1) and (2). The district s court s partial quote of 1973gg-6(a), at p. 31 of Doc 246, leaves the impression that the Secretary of State is charged under the NVRA with ensuring that any eligible applicant is registered to vote in an election. When the complete section is read, the only required assurance applicable is for each State to ensure that any eligible applicant is registered to vote in an election... (C) in the case of registration at a voter registration agency, if the valid voter registration form of the applicant is accepted at the voter registration agency not later than the less of 30 days, or the period provided by State law, before the date of the election. 42 U.S.C. 1973gg-6(a)(1)(C). The Secretary of State did not delegate Section 7 responsibilities to either DCFS or DHH. As public assistance agencies, those responsibilities were imposed upon DHH and DCFS by the NVRA itself. The court erred in holding the Secretary of State vicariously liable for the violations by those public assistance agencies. D. The Court Lacked Jurisdiction - Article III Standing Not Established - Statutory Standing Not Proven 1. Neither Plaintiff Proved Notice-Statutory Standing Required Under 42 U.S.C. 1973gg-9 9 The Eight Circuit held that Missouri could not delegate this state responsibility to conduct a general program to a local official and thereby avoid responsibility if such a program is not reasonably conducted. -8-

14 Case 2:11-cv JTM-JCW Document Filed 02/22/13 Page 10 of 28 In the case of an enforcement action under the NVRA, statutory standing relates to nonjurisdictional limitations on cause of actions, such as the notice requirement of 42 U.S.C. 1973gg-9(b) requiring one aggrieved by a violation of the NVRA to first provide written notice of the violation to the state s chief election official, and afford the state 90 days to cure the violation before filing suit for declaratory or injunctive relief. National Counsel v. Miller, 2012 WL , at *4 (D. Nev. 12/19/12). Neither plaintiff, Luther Scott nor the Louisiana State Conference of the NAACP, offered evidence at trial that it afforded the required notice before this suit was filed. Plaintiffs failed to meet this required burden of proving statutory standing. Attached to the Complaint - but not offered in evidence at trial - were notices provided on behalf of 10 the Louisiana State Conference of the NAACP of alleged violations. In denying (Doc 71) the Secretary of State s motion to dismiss the complaint, the district court erred in holding that Luther Scott need not provide notice and the defendants were not prejudiced by the same. As noted in National Council v. 11 Miller, at *7 and *6, written notice is mandatory,...identifying specific violations of the NVRA and the harm that arises from them is the purpose of providing notice to the state so that it can remedy the harm to the person(s) through corrective measure, with the purpose being to correct the violation and avoid litigation, at *9. Had Luther Scott sent the required notice, any violation to him would have been remedied. The trial court found that Luther Scott did not receive a voter registration form in his interactions with DCFS (Doc 436, pp. 5-6 and 9), AND also found that Since April of 2011, the month the instant suit was filed, Scott has been offered voter registration forms several times. (Doc 436, p. 8) Had Scott afforded the Secretary of State notice of his alleged violation as 42 U.S.C. 1973gg-9 requires before suit was filed, this alleged violation could have been cured and Scott s suit avoided altogether. 10 See Doc 1, Ex. 1, nonspecific letter dated January 12, 2011, and Ex. 2, more specific letter dated February 25, Plaintiffs filed suit on April 19, 2011, less than 90 days after the more specific notice letter. 11 Citing Nat l Coalition for Students with Disabilities Educ. & Legal Def. Fund v. Allen, 152 F.3d 283, 286 (4th Cir. 1998); and Broyles v. Texas, 618 F.Supp.2d 661, (S.D. Tex. 2009). -9-

15 Case 2:11-cv JTM-JCW Document Filed 02/22/13 Page 11 of 28 No standing is therefore conferred if no proper notice is given since the 90-day period never runs, Georgia State Conference of NAACP v. Kemp, 841 F.Supp.2d 1320, 1335, citing Broyles v. Texas, 618 F.Supp.2d 661, 692 (S.D. Tex. 2009). In Kemp, the notice by the organization was held not to constitute notice of a violation to the individual. The injury to the individual and the organization are not the same. The pre litigation notice was meant to allow the state to comply with the NVRA with respect to the individual, just as Louisiana attempted to do after suit was filed and Scott s identity made known. Neither plaintiff, Scott nor the Louisiana State Conference of the NAACP, offered proof at trial of their required statutory standing element - that notice was sent as required under 42 U.S.C. 1973gg-9. Having failed to meet this evidentiary burden, their claims should have been dismissed. 2. Article III Standing a. Luther Scott Failed to Prove That He Was Injured or Aggrieved By Conduct on the Part of the Secretary of State The issue of Luther Scott s standing has been briefed in detail in prior filings in the district court, but a couple of points on this court s findings and conclusions with respect to his standing raise substantial questions on appeal. The court determined that Scott s grievance or injury arose out of in person transactions at the Department of Children and Family Services when he was not offered the opportunity to register in the manner required by Section 7 of the NVRA. The court then concluded that the failure to offer registration was traceable to the Secretary of State because it is generally responsible to coordinate NVRA responsibilities in the State. Additionally, insofar as the SOS is required to coordinate the state of Louisiana s responsibilities under the NVRA, Scott s injury is traceable to the SOS. (Doc 436, p.10). Setting aside for the moment the limits of the authority in the statute cited by the court, the court effectively assigned responsibility for Scott s grievance to the Secretary of State based upon principles of vicarious liability. The court did not assess whether the procedures, rules, forms and guides to the -10-

16 Case 2:11-cv JTM-JCW Document Filed 02/22/13 Page 12 of 28 implementation of the NVRA by the Secretary of State led to Scott s grievance. The courts have consistently held that an essential element of standing is the establishment of a causal connection between the injury and the conduct complained of - - the injury has to be fairly traceable 12 to the challenged action of the defendant. There is a substantial question for appeal as to whether a leap from the actions of one agency to a second agency establishes the evidentiary link necessary to establish responsibility for a claimant s alleged injury. The court excluded the proffered testimony of Elsie Cangelosi regarding the implementation and efforts to coordinate the state s NVRA responsibilities, and it is impossible to determine from the record whether the actions of the Secretary of State resulted to any grievance by Luther Scott. The court further determined that Scott did not know that he had been registered to vote since (Doc. 436, pp. 9,10) However, SOS Exhibit 7 shows that the Orleans Parish Registrar of Voters mailed confirmation of registration and a voter registration identification card to Scott at the address he provided on his registration applications. Thus, Scott s purported lack of knowledge concerning his voter registration did not result from any act or omission on the part of the Secretary of State. Scott s grievance or injury is not traceable to the Secretary of State employing vicarious liability principles. The court s conclusions and findings linking Scott s injury or grievance to conduct by the Secretary of State are not supported by the trial record. b. Louisiana State Conference of the NAACP Failed To Prove It Was Aggrieved The district court ruled that it would only consider 2010 voter registration activities of the Louisiana State Conference of the NAACP with respect to standing Doc 421, Nonetheless the findings of fact are replete with findings regarding voter registration activities prior to that year. Had the Secretary of State been advised of the court s change of position, it could have offered evidence to contradict much of the prior Cir 1989). 12 Lujan v. Defenders of Wildlife, 504 U.S. 555, (1992); ACORN v. Fowler, 178 F.3d 350, 356 (5 th -11-

17 Case 2:11-cv JTM-JCW Document Filed 02/22/13 Page 13 of efforts alleged. court stated: In finding The Louisiana State Conference of the NAACP Has Standing Doc 436, pp , the Accordingly, the LSC NAACP expended its limited resources, time and money to canvass and conduct voter registration outside of Louisiana DCFS and DHH offices. While the LSC NAACP does not target public assistance applicants, the LSC NAACP was still forced to expend resources registering Louisiana voter who would have been already registered if the Defendant had complied with the NVRA. Doc 436, p could have expended its volunteer time and monetary resources on voter registration other than its activities outside of DCFS and DHH offices. (Doc 436, p. 18)... could have spent its meager resources on other priorities. (Doc 436, p. 19) Reverend Taylor admitted that all voter registration activity conducted by Louisiana State Conference of NAACP for 2010 was funded by grants from NAACP national office: [1] $5,000 from Let s Do It Again 2010 grant (SOS Ex 60); and [2] $5,000 from 2010 Get Out the Vote grant (SOS Ex 56). Both grants involved phone banking for calls to persons already registered to vote. Taylor testified that Louisiana NAACP adhered to the Let s Do It Again 2010 grant s purpose to increase the census count in specified census tracts in order to increase voter turnout in underperforming precincts. SOS Ex 60, p The program described was census oriented, not voter registration oriented. The plan was to implement the phone bank by utilizing the VAN system..., SOS Ex 60, p. 0653, which listed names of registered voters to be called. Enunciated goals were to: educate respondents on how important it is that everyone is accounted for, hence the theme of this program, Yes We Count; and to increase the membership of the NAACP. SOS Ex 60, p Voter registration was virtually unmentioned. Taylor conceded that activities funded by Let s Do It Again 2010 grant were phone banking. On redirect, his attorney pointed out that the budget also listed door to door canvassing as a proposal. Canvassing is described in the Let s Do It Again materials as A person who knocks on the doors of voters encouraging voter participation in an upcoming election. -12-

18 Case 2:11-cv JTM-JCW Document Filed 02/22/13 Page 14 of 28 Taylor testified that the Get Out The Vote grant, SOS Ex 56, allegedly received in 2010, funded activity for phone banking. Taylor testified that...we used this as the last part to finish up telephone banking--to get the folks out to vote. Taylor admitted that this grant was not used for voter registration. Doc 421, p. 179, lines Taylor said that Louisiana NAACP received these grant monies by checks from National NAACP which were furnished to La. NAACP President Johnson and deposited in Louisiana NAACP checking account. Johnson testified in deposition that the Louisiana NAACP had never gotten grant money from anybody for anything. Taylor claimed that checks were written from the Louisiana NAACP account to pay for expenses and that the expenses were documented. However, see SOS Ex 38, a request for production propounded to the Louisiana NAACP by the Secretary of State for: (a) a copy of all financial and expense records... for each and every voter registration drive.... In response (SOS Ex 40), the Louisiana NAACP produced no expense documentation for 2010 voter registration activity, even though the grant required retention of bank records for 3 years to substantiate and justify expenditures. SOS Ex 60, p The only evidence of conduct voter registration outside of Louisiana DCFS and DHH offices was the testimony of Edward Taylor that he alone and personally offered voter registration approximately 3 times at a health unit in Hammond and approximately 3 times at a food stamp office in Amite. If Taylor did do so, he did not do so pursuant to either grant as the grants were for phone banking and perhaps some door to door canvassing of voters. Taylor claims to have acted on behalf of the Louisiana NAACP, but admits he acted alone and personally, in the sense that I was the one who did it without letting the Louisiana NAACP know that he was doing it. It is clear from the testimony that he was on a mission of his own. Taylor testified that in 2004 an unidentified worker outside an unidentified health unit registered more voters at that health unit than at a Walmart or an apartment complex (Doc 421, p. 155), so he felt that, in his personal opinion, this was fertile ground to register them. Doc 421, p If Taylor had not found unregistered people, he would have found another location to set up registration. (Doc 421, p. 160). -13-

19 Case 2:11-cv JTM-JCW Document Filed 02/22/13 Page 15 of 28 Regarding the health unit in Hammond in 2010, no testimony was offered to show that the persons who filled out a registration form with Taylor were public assistance applicants and had not been offered or filled out a registration form inside the building. With respect to Taylor s 2010 efforts outside an Amite food stamp office, the only testimony regarding the practice of intake workers handling food stamp applicants was of Yolanda Ash and Shawn Banks, intake workers at the New Orleans office, who testified that food stamp applicants in 2009 and 2010 were offered the opportunity to register to vote, pursuant to established procedures of DCFS. No registration effort by Taylor was shown to be linked to NVRA violations by any defendant, certainly not the Secretary of State. These efforts by Taylor are distinguishable from the efforts th by ACORN plaintiffs at public assistance offices mentioned in ACORN v. Fowler, 178 F.3d 350 (5 Cir. 1999), and described at pp thereof. Taylor alone went to one food stamp office in Amite and one health unit in Hammond, three times each. Taylor had no personal knowledge of and could not even suggest or approximate a figure or amount of time spent by Louisiana NAACP in attempting to register voters at either DCFS or DHH public assistance offices because I do not know how many people went, I don t know how many hours were spent, I don t who did it. Louisiana NAACP President Johnson admitted that, the Louisiana NAACP engaged in no direct effort to register voters who are in public assistance. The evidence does not show that Taylor s personal effort to register people outside a food stamp office or health unit amounted to wasted resources. Taylor testified that the Louisiana NAACP has no shortage of volunteers, it has volunteers who will work and never get a dime, stating That s why we re the NAACP. Obviously Taylor counts himself in that number. The Louisiana NAACP failed to carry its burden of proof to establish standing. In ACORN Fair th Housing v. LeBlanc, 211 F.3d 298, 305 (5 Cir. 2000), the Fifth Circuit cited ACORN v. Fowler, 178 F.3d th 350, 360 (5 Cir. 1999) for the proposition that an organization could have standing if it had proven a drain on its resources counteracting the effect of defendant s actions. Citing the conjectural and hypothetical -14-

20 Case 2:11-cv JTM-JCW Document Filed 02/22/13 Page 16 of 28 nature of the organization s testimony, failure to mention any specific projects it put on hold, and failure to describe in any detail how ACORN had to redouble efforts in the community to combat defendant s action, the Fifth Circuit found ACORN failed to satisfy the injury in fact requirement and lacked standing. Like the plaintiff in National Council v. Miller, 2012 WL (D. Nev. 2012) at *13, the Louisiana State Conference of the NAACP s self described objectives, activities and practice contradict their assertion they have spent additional resources. Like the Nevada plaintiff, the Louisiana State Conference of the NAACP has been a strong advocate for citizens to participate in the electoral process, particularly among low income citizens. The fact that Taylor, by self described happenstance, found individuals to register during his 3 visits outside an Amite food stamp office and 3 visits outside a Hammond health unit does not constitute a wasted resource. If he had not obtained registration there, he would have gone to a Wal Mart to register other low income individuals. No activity suffered by these efforts. Like the plaintiffs in the Nevada case, the Louisiana State Conference of the NAACP has failed to show any concrete and particularized facts that they have conducted any voter registration drives other than what they would have done had Nevada [Louisiana] been in compliance with the NVRA. National Council, at * E. Declination Forms, Distribution of Voter Registration Forms and the Valdez Decision The district court ruled that the obligation to distribute voter registrations forms by public assistance offices continues in effect under the NVRA unless the applicant marks the NO box on the declination form; otherwise, the declination is not in writing and does not relieve the agency of its distribution obligation. In so ruling, the district court relied upon the Valdez decision from the Tenth Circuit Court of Appeals. The Secretary of State submits that the reasoning of Valdez and by extension the district court is in error on this issue. Unless a signed declination form is construed to constitute the writing contemplated by 42 U.S.C. 1973gg-5(a)(6)(A), the declination scheme under Section 7 of the NVRA becomes surplusage 13 th Valdez v. Squier, 676 F.3d 935 (10 Cir. 2012). -15-

21 Case 2:11-cv JTM-JCW Document Filed 02/22/13 Page 17 of 28 and has no meaning at all. The required declination question, expressly mandated by 1973gg-5(a)(6)(B)(I), is, If you are not registered to vote where you live now, would you like to apply to register to vote here today? YES NO Then, in prominent type, the form must by the terms of the statute state, IF YOU DO NOT CHECK EITHER BOX, YOU WILL BE CONSIDERED TO HAVE DECIDED NOT TO REGISTER TO VOTE AT THIS TIME. The Valdez court held and the district court here concurred that checking the NO box is a declination to register in writing for all purposes, so that the public assistance agency has no obligation to give the applicant a voter registration form if the NO box is checked; not checking any box at all only means that the applicant has declined to register at this time...at the time they are present in one of HSD s offices [public assistance office] seeking assistance so that the agency must still give the applicant a registration form if a box is not checked. Valdez, This construction of the Act is so anomalous that it renders the declination provisions of Section 7 absurd. The question posed to the applicant is, would you like to apply to register to vote here today? Answering NO to that question by checking the NO box means nothing more than the applicant has opted not to register at the time of his application - - here today. It strains the imagination to see how checking the NO box differs from not checking a box at all. Both mean the same thing - - that the applicant declines to register to vote at the time of application - - here today or at this time. With respect to an applicant who does not check either box on the declaration form, the Valdez court reasons, it is conceivable that an applicant who chooses not to register at that time might still be interested in receiving a mail voter registration form and completing it at another time and/or location. Is it not equally conceivable that an applicant who checks the NO box in response to the question, would you like to register to voter here today, might be interested in receiving a mail voter registration form to fill out at another time -16-

22 Case 2:11-cv JTM-JCW Document Filed 02/22/13 Page 18 of 28 or location? The distinction that the Valdez court makes in regard to the declination form is so contrived and artificial that it defies rational explanation. The Valdez formulation does, however, reinforce the argument that the NVRA applies only to in person transactions. The statutorily required declination form is unworkable with remote transactions because the language contained on it has no meaning to an applicant completing an application by mail, 14 telephone or online. The declination provisions become inoperative in the context of remote applications. With respect to the failure to check either box, Valdez says, the phrase AT THIS TIME means that the failure must instead be interpreted simply as a decision by the applicant not to register to vote at that time, i.e., at the time they are present in one of the HSD offices seeking services or assistance. Valdez, 946. By implication the failure to check either box outside of the office, when the applicant is not present in the office face to face with a representative leaves the applicant to guess at what the declination question is asking and leaves the agency representative to guess at what the applicant meant by marking or not marking the declination form. The Secretary of State suggests that this is so because Congress never contemplated that the agency registration provisions of the NVRA would be applicable to anything other than in person applications. Applying agencies registration provisions to anything other than in person applications would render the declination form meaningless. The declination question, would you like to register to voter here today? on a telephone application would be nonsensical. Yet the NVRA expressly mandates that question in those terms. And how would the remote applicant decline in writing in response to that question by telephone or online? If the voter answered, no, over the telephone, would the agency interviewer mail the applicant a declination form? Even if the voter received a declination form and checked the NO box declining to register here today, what would the declination mean by the time the return mail arrived? The 14 Use of the declination question, would you like to register to voter here today? makes it clear that the NVRA was never intended to apply to remote applications. -17-

23 Case 2:11-cv JTM-JCW Document Filed 02/22/13 Page 19 of 28 Secretary of State cannot conceive of how it should advise the assistance agencies or coordinate the Act with respect to remote applications and declination procedures. Such an attenuated, tortured construction of the NVRA s declination provisions are nothing more that attempts to legislate an expansion of the terms of the Act. 1973gg-5(a)(6)(B) creates the declaration form that constitutes a declination to register in writing if signed by the applicant and/or the agency interviewer during the application process, and the agency obligations with respect to the distribution of forms does not extend beyond that. Doubt about the district court s ruling with regard to declination procedures is reinforced by the FEC Guide to Implementing the NVRA, published by the Federal Elections Commission to aid states in implementing the Act upon its adoption. In its publication, the FEC, in addition to written explanation of the procedure relative to a benefits applicant s declination of the opportunity to register, offered a flow chart as to how the registration procedures are intended to work. The chart with respect to agency registration begins with Block One, the agency offers applications At that point, the FEC chart indicates two options, either the applicant declines application or the applicant completes application. Where the applicant declines application, the chart indicates that the agency retains the declination, and is to then STOP. There is no additional option. There is no indication of an obligation on the part of the agency to give the applicant a voter registration form when the applicant declines the proffered opportunity to register during the benefits application process. Declination occurs when the benefits applicant either checks the NO box or does not check either box. The NVRA is clear on this point - - IF YOU DO NOT CHECK EITHER BOX, YOU WILL BE CONSIDERED TO HAVE DECIDED NOT TO REGISTER TO VOTE AT THIS TIME. But, if further clarification were needed the Joint Conference Committee Report appended to the FEC Guide to Implementing the NVRA provides it. Another provision (Section 7(a)(6)(B) would require an agency to include on a form the -18-

24 Case 2:11-cv JTM-JCW Document Filed 02/22/13 Page 20 of 28 question If you are not registered to vote where you live now, would you like to apply to register to vote here today? In response to that question, the form would include a box for the applicant to accept or decline to apply to register to vote. Failure to check either would be deemed a declination for purposes of this provision. excerpt from Joint Statement of the Committee of Conference. [emphasis supplied] Could Congress and the Federal Election Commission have made the Act s intent any clearer? The declination form tells the applicant that not checking either box on the form is deemed to be a declination of the opportunity to register to vote during the benefits application process. In that context and with the instruction in all capital letters on the form, the applicant is told in unambiguous terms that he or she need not check a box in order to decline to register. Not checking a box in that circumstance constitutes the affirmative act of declining the opportunity to register. Checking the NO box is no more a declination than not checking a box at all. The FEC was clear on that point; Congress was clear on that point; the language on the declination form itself is clear on that point. Once the applicant declines the opportunity to register, the obligation of the agency with respect to voter registration ends. At that point, says the FEC, the agency is to STOP. F. Training Is Not Required under the NVRA At Doc 246, p. 28, the district court finds fault with the Secretary of State s number of trainings provided to DCFS and DHH. Plaintiffs contended in Complaint that the Secretary of State failed to develop adequate employee training programs necessary for acceptance of voter registration applications under the NVRA. (Doc 1, para. 26). However, that portion of the Complaint was dismissed when Judge Africk dismissed the state law claims, Doc 71, p. 9. The duty to the Louisiana Secretary of State for training arises under state, not federal law, La. R.S. 18:117. No duty to develop training exists under the NVRA. The EAC (formerly FEC), is the entity charged under the NVRA with the duty to provide information to the states with respect to the responsibilities of the States under this subchapter. (42 USC 1973gg-7(a)(4)). In its report to Congress on The Impact of the National Voter Registration Act of 1993 on the Administration of Elections for Federal office -19-