Case 3:12-cv Document 99 Filed in TXSD on 04/07/14 Page 1 of 9

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1 Case 3:12-cv Document 99 Filed in TXSD on 04/07/14 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION VOTING FOR AMERICA, PROJECT VOTE, INC., BRAD RICHEY, and PENELOPE MCFADDEN, v. Plaintiffs, NANDITA BERRY, In Her Official Capacity as Texas Secretary of State, CHERYL E. JOHNSON, In Her Official Capacity as Galveston County Assessor and Collector of Taxes and Voter Registrar, and STATE OF TEXAS, Defendants. CIVIL ACTION NO. 3:12-CV MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT Plaintiffs Voting for America, Project Vote, Inc., Brad Richey, and Penelope McFadden move for leave to file a Second Amended Complaint pursuant to Rule 15 of the Federal Rules of Civil Procedure. A copy of the proposed complaint is attached as Exhibit A. The proposed complaint streamlines the allegations in the previous complaint, removing a number of claims and adding two new causes of action not yet considered by this Court or the Fifth Circuit. The proposed complaint removes individual plaintiffs Brad Richey and Penelope McFadden and their claims related to Senate Bill 14 under the Equal Protection clause (former 1

2 Case 3:12-cv Document 99 Filed in TXSD on 04/07/14 Page 2 of 9 Count VI and Voting Rights Act of 1965 (former Count VII, as well as their claims under Texas Election Code (former Count VIII. The proposed complaint also removes all claims related to Texas law s requirement that VDRs carry and produce upon request certificates of appointment issued by the county. Tex. Elec. Code In addition, the proposed complaint adds as Count VI the claim that Texas s exclusion of non-residents from serving as Volunteer Deputy Registrars (VDRs violates the Privileges and Immunities Clause of Article IV of the United States Constitution. The proposed complaint also adds as Count VII the claim that Texas s restrictions on third party voter registration violate the First and Fourteenth Amendment rights of Texas citizens who rely upon voter registration organizations to register to vote. In addition to these substantive alterations, the proposed complaint makes nonsubstantive changes such as substituting newly appointed Secretary of State Nandita Berry in place of former Secretary Hope Andrade. The proposed complaint also clarifies that Plaintiffs are challenging the In-State Restriction and Completeness Requirement on First Amendment grounds in both Counts II & III. Plaintiffs have provided a copy of the proposed Second Amended Complaint to defendants; Secretary of State Berry and Registrar Johnson oppose the filing of the proposed complaint. As a result, plaintiffs seek leave from the Court to amend the complaint for the reasons set forth below. BACKGROUND In recent years Texas has erected a number of barriers, either through statutory enactments or reinterpretations of existing law, that collectively prohibit voter registration organizations from conducting registration drives by prohibiting non-residents from assisting with collection and solicitation of voter registration applications, interfering with voter -2-

3 Case 3:12-cv Document 99 Filed in TXSD on 04/07/14 Page 3 of 9 organizations pay structures, and imposing a number of regulatory burdens backed by the threat of criminal sanctions. On February 13, 2012, plaintiffs Voting for America, Penelope McFadden, and Brad Richey filed a complaint alleging that these laws violate plaintiffs constitutional speech, association, and equal protection rights under the First and Fourteenth amendments, and statutory rights under the National Voter Registration Act of 1993 ( NVRA, the Voting Rights Act of 1965 ( VRA, and Texas law. The complaint named as defendants Cheryl Johnson, Galveston County Registrar, and former Secretary Andrade. On March 15, 2012, plaintiffs filed an amended complaint adding Project Vote, Inc., as a plaintiff. On March 25 and March 27, 2012, defendants Johnson and Andrade filed motions to dismiss pursuant to Federal Rules of Civil Procedure 12(b(1 and 12(b(6. On May 10, 2012, plaintiffs filed a motion for a preliminary injunction of some aspects of Texas law for violations of plaintiffs speech and association rights and rights under the NVRA. On May 24, 2012, this case was transferred from Judge Kenneth M. Hoyt to newly appointed Judge Gregg J. Costa. On June 11-12, 2012, the court held an evidentiary hearing and argument on the defendants motions to dismiss and plaintiffs motion for a preliminary injunction. On August 2, 2012, this Court issued a 94-page opinion in which it denied defendants motions to dismiss and granted a preliminary injunction for five of the eight provisions requested by plaintiffs. Voting for Am., Inc. v. Andrade, 888 F. Supp. 2d 816 (S.D. Tex Specifically, the Court enjoined enforcement of the Photocopying Prohibition (Tex. Elec. Code , the County Limitation (Tex. Elec. Code , the Personal Delivery Requirement (Tex. Elec. Code , the challenged sections of the Compensation Prohibition (Tex. Elec. Code , and the In-State Restriction (Tex. Elec. Code (d(3. -3-

4 Case 3:12-cv Document 99 Filed in TXSD on 04/07/14 Page 4 of 9 On September 6, 2012, a motion panel of the Fifth Circuit issued an order staying the preliminary injunction pending appeal, later issuing a written decision from which Judge James L. Dennis dissented. Voting for Am., Inc. v. Andrade, 488 Fed. App x 890 (5th Cir On October 3, 2013, a three-judge panel of the Fifth Circuit, with Judge W. Eugene Davis dissenting, reversed this Court s grant of a preliminary injunction, and remanded to this Court for further proceedings. Voting for Am., Inc. v. Steen, 732 F.3d 382 (5th Cir On February 5, 2014, plaintiffs gave this Court notice of their intent to seek leave to file an amended complaint, as well as their intent not to file a petition for certiorari for the Fifth Circuit s reversal of this Court s preliminary injunction decision. Plaintiffs now move this Court for leave to file a Second Amended Complaint. ARGUMENT Under Federal Rule of Civil Procedure 15(a(2, a party may amend its pleading only with the opposing party s written consent or the court s leave. The court should freely give leave when justice so requires. Fed. R. Civ. P. 15(a(2. This language establishes a presumption in favor of granting parties leave to amend, which serves the aim of promoting litigation on the merits rather than on procedural technicalities. Mayeaux v. La. Health Serv. and Indem. Co., 376 F.3d 420, 425, 427 (5th Cir Though the decision whether to grant leave to amend is committed to a district judge s discretion, the term discretion in this context may be misleading, because Fed. R. Civ. P. 15(a evinces a bias in favor of granting leave to amend. Id. (internal quotation marks omitted. Thus, a district court abuses its discretion if it denies leave to amend without a substantial reason, such as undue delay, bad faith, dilatory motive, repeated failures to cure deficiencies, undue prejudice, or futility of amendment. Mayeaux, 376 F.3d at 425 (citing Foman v. Davis, 371 U.S. 178, 182 (

5 Case 3:12-cv Document 99 Filed in TXSD on 04/07/14 Page 5 of 9 Granting leave to file an amended complaint promotes the efficient use of judicial resources. The proposed complaint eliminates several causes of action that were not a part of the Court s preliminary injunction and hence were not reviewed by the Fifth Circuit eliminating the need for adjudication of these claims. The proposed complaint adds two new causes of action, neither of which is controlled by the Fifth Circuit s decision in this case. The proposed Privileges and Immunities claim is an alternative legal theory of recovery arising from the same underlying facts that have been alleged since the outset of this case. See Mayeaux, 376 F.3d at 427 (amendments that merely propos[e] alternative legal theories for recovery on the same underlying facts... generally should be permitted ; see also Foman, 371 U.S. at 182 ( If the underlying facts or circumstances relied upon by a plaintiff [in a proposed amended complaint] may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits.. The new claim that Texas s laws governing voter registration organizations violates the First and Fourteenth Amendment rights of Texas citizens has not been considered by either this Court or the Fifth Circuit, but is based on the same Texas legal provisions as earlier claims. As a result, it also promotes judicial efficiency to consider this new cause of action along with the other claims previously alleged. Moreover, no substantial reason counsels against granting leave to file the proposed amended complaint. Plaintiffs do not act with bad faith, undue delay, or dilatory motive, filing this proposed complaint within the timeframe discussed during the March 6, 2013 Status Conference. Further, the proposed complaint does not stem from repeated failures to cure a deficiency in the original complaint. Nor would the proposed amendments cause undue prejudice to defendants. Although this case began in early 2012, this litigation is still in its early phases. All that has been adjudicated are motions to dismiss and plaintiffs motion for a -5-

6 Case 3:12-cv Document 99 Filed in TXSD on 04/07/14 Page 6 of 9 preliminary injunction. The parties have not yet conducted discovery, nor have motions for summary judgment been filed. There is no impending trial date that the proposed amended complaint would interrupt. Further, addition of the Privileges and Immunities claim and the First and Fourteenth Amendment claims as to Texas citizens would not require defendants to respond to substantially different facts because the claims rely substantially on the same factual allegations as earlier complaints. Finally, the filing of this proposed amended complaint cannot be said to be futile, since it properly alleges the required elements for a Privileges and Immunities claim and a First and Fourteenth Amendment claim. See Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 873 (5th Cir (the standard for futility in the Fifth Circuit is whether the amended complaint would fail to state a claim upon which relief could be granted, and the court applies the same standard of legal sufficiency as applies under Rule 12(b(6.. Though we recognize that opposing counsel may wish to pursue 12(b(6 arguments for dismissal of these claims, we submit that it would be more efficient, as the Court suggested during the Status Conference, for the Court to enter the proposed amended complaint and allow the parties to address all 12(b(6 issues for existing and proposed claims in a single round of briefing. Because this case already addresses related legal claims and factual background, and because no substantial reason counsels against allowing the filing of an amended complaint, the Court should grant leave to file the proposed amended complaint so that all of plaintiffs claims can be adjudicated on the merits in one litigation. See Mayeaux, 376 F.3d at 427. CONCLUSION For the reasons set forth above, the Court should grant Plaintiffs Motion For Leave To File A Second Amended Complaint. -6-

7 Case 3:12-cv Document 99 Filed in TXSD on 04/07/14 Page 7 of 9 This 7th day of April, 2014, Respectfully Submitted, /s/ Ryan M. Malone Ryan M. Malone D.C. Bar No Southern District of Texas No (admitted pro hac vice Ropes & Gray LLP th St. NW Suite 900 Washington, D.C Telephone: ( Facsimile: ( Brian Mellor MA Bar. No (admitted pro hac vice Project Vote, Inc th Street NW, Suite 250 Washington, DC Telephone: ( Facsimile: ( Attorneys for Voting for America and Project Vote, Inc. Chad W. Dunn State Bar No Southern District of Texas No K. Scott Brazil State Bar No Brazil & Dunn, L.L.P Cypress Creek Parkway Suite 530 Houston, Texas Telephone: ( Facsimile: ( Richard Alan Grigg State Bar No Southern District of Texas No Spivey & Grigg, L.L.P. 48 East Avenue Austin, Texas

8 Case 3:12-cv Document 99 Filed in TXSD on 04/07/14 Page 8 of 9 Telephone: ( Facsimile: ( Attorneys for Plaintiffs Voting For America, Project Vote, Inc., Brad Richey, and Penelope McFadden -8-

9 Case 3:12-cv Document 99 Filed in TXSD on 04/07/14 Page 9 of 9 CERTIFICATE OF SERVICE I hereby certify that on the 7th day of April, 2014, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system, which will send a notification of such filing to all counsel of record. /s/ Ryan M. Malone Ryan M. Malone -9-