Case 2:11-cv LMA-JCW Document 67 Filed 07/11/11 Page 1 of 57 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA.

Transcription

1 Case 2:11-cv LMA-JCW Document 67 Filed 07/11/11 Page 1 of 57 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA ROY FERRAND, LUTHER SCOTT, JR., and LOUSIANA STATE CONFERENCE OF THE NAACP, for themselves and all other persons similarly situated, Civil Action No. 11-cv-926-LMA-JCW Plaintiffs, v. TOM SCHEDLER in his official capacity as the Louisiana Secretary of State, RUTH JOHNSON, in her official capacity as Secretary of the Louisiana Department of Children & Family Services, and BRUCE D. GREENSTEIN, in his official capacity as Secretary of the Louisiana Department of Health & Hospitals, Defendants. PLAINTIFFS' CONSOLIDATED MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS

2 Case 2:11-cv LMA-JCW Document 67 Filed 07/11/11 Page 2 of 57 TABLE OF CONTENTS TABLE OF AUTHORITIES... iii PRELIMINARY STATEMENT...1 STATEMENT OF FACTS...3 LEGAL STANDARD...5 ARGUMENT...6 I. PLAINTIFFS HAVE SATISFIED THE NOTICE REQUIREMENT...6 A. Plaintiffs January 12 Notice Letter Provided Defendants with Adequate Notice by Identifying the State Agencies Operating in Violation of the NVRA, and Specifying the Obligations on which They Were Defaulting...6 B. The Notice Letter Discharged the Notice Obligations for All Named Individual and Organizational Plaintiffs...10 C. Requiring Additional Notice Would Be Futile...12 II. PLAINTIFF NAACP HAS ORGANIZATIONAL STANDING UNDER THE FIFTH CIRCUIT S CONTROLLING DECISION IN FOWLER...13 A. Plaintiff NAACP Has Suffered and Continues to Suffer Injury-in-Fact...14 B. Plaintiff NAACP s Injury Is Directly Traceable to Defendants Violations of the NVRA, and Is Redressable by a Favorable Decision...17 C. Defendants Unfounded Assertion that Plaintiff NAACP Lacks Standing Because it Has No Legal Right to NVRA Compliance Is Contrary to Supreme Court and Fifth Circuit Case Law...19 III. DECLARATORY RELIEF IS AN APPROPRIATE REMEDY IN THIS CASE...21 A. Plaintiffs Complaint, which Alleges Ongoing and Future Violations of the NVRA by Defendants, Presents a Justiciable Claim for Declaratory Relief...22 B. This Court Has Authority to Award Declaratory Relief under the NVRA and the Declaratory Judgment Act...26 C. This Court Should Exercise Its Discretion to Decide Plaintiffs Claim for Declaratory Relief...27 i

3 Case 2:11-cv LMA-JCW Document 67 Filed 07/11/11 Page 3 of 57 IV. THIS COURT MAY, AS A PROPER EXERCISE OF ITS EQUITABLE AUTHORITY, ORDER THAT DEFENDANTS ENGAGE IN LIMITED MONITORING AND REPORTING REQUIREMENTS AS A REMEDY FOR VIOLATIONS OF THE NVRA...29 A. Federal Courts Have Broad Remedial Authority to Order Relief that is Not Expressly Required By Statute, and Defendants Cite No Authority to the Contrary...30 B. Monitoring and Reporting Requirements Are Appropriate Relief in NVRA Cases, and Defendants Cite No Authority to the Contrary...32 C. Courts Have Routinely Ordered Monitoring and Reporting Requirements as an Exercise of Equitable Authority in a Wide Range of Contexts...35 V. THE ELEVENTH AMENDMENT DOES NOT BAR THIS COURT FROM EARING PLAINTIFFS SECOND CLAIM FOR RELIEF...38 A. Defendants Acted Outside Their Authority in Failing to Comply With Mandatory State Voter Registration Laws...38 B. The State Statutes at Issue in this Case Implement a Federal Statute...42 VI. PLAINTIFFS FERRAND AND SCOTT VOLUNTARILY DISMISS THEIR CLAIMS AGAINST DEFENDANT GREENSTEIN...45 CONCLUSION...45 ii

4 Case 2:11-cv LMA-JCW Document 67 Filed 07/11/11 Page 4 of 57 TABLE OF AUTHORITIES CASES Aetna Cas. & Sur. Co. v. Quarles, 92 F.2d 321 (4th Cir. 1937)....23, 29 Allstate Ins. Co. v. Emp rs Liab. Assurance Corp, 445 F.2d 1278 (5th Cir. 1971)....25, 26 Ass n of Comm. Orgs. For Reform Now v. Fowler, 178 F.3d 350 (5th Cir. 1999)... passim Ass n of Comm. Orgs. For Reform Now v. Levy, No CV-C-NKL (W.D. Mo.)...33 Ass n of Community Orgs. for Reform Now v. Miller, 129 F.3d 833 (6th Cir. 1997)...6, 11, 12 Ass n of Community Orgs. for Reform Now v. Scott, No. 08-CV-4084-NKL, 2008 U.S. Dist. LEXIS (W.D. Mo. July 7, 2008)... passim Baker v. Putnal, 75 F.3d 190 (5th Cir. 1996)...5 Bauer v. Texas, 341 F.3d 352 (5th Cir. 2003)...23 Bd. of Liquidation v. McComb, 92 U.S. 531 (1875)...39 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)...5 Bennett v. Spear, 520 U.S. 154 (1997)...14 Broyles v. Texas, 618 F. Supp. 2d 681 (S.D. Tex. 2009)...12 Carpenter v. Stephen F. Austin State Univ., 706 F.2d 608 (5th Cir. 1983)...37 City of Los Angeles v. Lyons, 461 U.S. 95 (1983)...23 iii

5 Case 2:11-cv LMA-JCW Document 67 Filed 07/11/11 Page 5 of 57 City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283 (1982)...10 Colle v. Brazos Cnty., Tex., 981 F.2d 237 (5th Cir. 1993)...10 Condon v. Reno, 913 F. Supp. 946 (D.S.C. 1995)...13 Corliss v. O Brien, 200 Fed. App x 80 (3d Cir. 2006)...24, 25 Crown Cork & Seal Co. v. Borden Inc., 779 F. Supp. 33 (E.D. Penn. 1991)...25 Davis v. Passman, 442 U.S. 228 (1979)...32 Deckert v. Independence Shares Corp. 311 U.S. 282 (1940)...34 Dismuke v. United States, 297 U.S. 167 (1936)...41 Dugan v. Rank, 372 U.S. 609 (1963)...40 Ex parte Young, 209 U.S. 123 (1908)...39 Fair Hous. Council of Suburban Philadelphia v. Montgomery Newspapers, 141 F.3d 71 (3d Cir. 1998)...20 Fitzpatrick v. Bitzer Cnty. Pub. Sch., 427 U.S. 445 (1976)...42 Florida Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670 (1982)...39 Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60 (1992)...30, 32, 34 Franks v. Bowman Transp. Co, 495 F.2d 398 (5th Cir. 1974)...31, 36 Franks v. Bowman Transp. Co., 424 U.S. 747 (1976)...36 iv

6 Case 2:11-cv LMA-JCW Document 67 Filed 07/11/11 Page 6 of 57 Frew ex rel. Frew v. Hawkins, 540 U.S. 431 (2004)...42, 43, 44 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000)...10 Gary W. v. Louisiana, No. Civ , 1990 WL (E.D. La. Feb )...31, 37 Great Lakes Reinsurance (UK) PLC v. TLU Ltd., No , 2008 WL (S.D. Fla Mar. 27, 2008)...25 Gruntal & Co. v. Steinberg, 837 F. Supp. 85 (D.N.J. 1993)...25 Hamilton v. Landrieu, 351 F. Supp 549 (E.D. La. 1972)...37 Harkless v. Blackwell, 467 F.Supp.2d 754 (N.D. Ohio 2006)...12 Harkless v. Blackwell, 545 F.3d 445 (6th Cir. 2008)...19, 20 Havens Reality Corp. v. Coleman, 455 U.S. 363 (1982)...19, 20, 21 Hecht Co. v. Bowles, 321 U.S. 321 (1944)...31 Hewitt v. Helms, 482 U.S. 755 (1987)...25 Houston v. Ormes, 252 U.S. 469 (1920)...40 Hutto v. Finney, 437 U.S. 678 (1978)...31 Kendall v. United States ex rel. Stokes, 12 Pet. 524 (1838)...32 Larson v. Domestic & Foreign Com. Corp., 337 U.S. 682 (1949)...40 Leclerc v. Webb, 270 F. Supp. 2d 779 (E.D. La. 2003)...10 v

7 Case 2:11-cv LMA-JCW Document 67 Filed 07/11/11 Page 7 of 57 Lentz v. Trinchard, 730 F. Supp. 2d 567 (E.D. La. 2010)...5 Louisiana v. United States, 380 U.S. 145 (1965)...35, 36 Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242 (5th Cir. 1997)...5 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)...14, 19 Lujan v. Nat l Wildlife Fed n, 497 U.S. 871 (1990)...14, 19 Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270 (1941)...26 Miguel v. McCarl, 291 U.S. 442 (1934)...40 Miller v. Carson, 563 F.2d 741 (5th Cir. 1977)...37 Nat l Coal. for Students with Disabilities Educ. & Legal Def. Fund v. Scales, 150 F. Supp. 2d 845 (D. Md. 2001)...7, 24 Nat l Coal. for Students with Disabilities v. Allen, 152 F.3d 283 (4th Cir. 1998)...24 Nat l Coal. for Students with Disabilities v. Taft, No. 2:00-cv-1300, 2002 WL (S.D. Ohio Aug. 2, 2002)...24 Newman v. State of Alabama, 559 F.2d 283 (5th Cir. 1977)...37 Orix Credit Alliance, Inc. v. Wolfe, 212 F.3d 891 (5th Cir. 2000)...10 Partridge v. Two Unknown Police Officers of Houston, 791 F.2d 1182 (5th Cir. 1986)...10 Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89 (1984)... passim Poly-America L.P. v. Stego Indus., L.L.C., 694 F. Supp. 2d 600 (N.D. Tex. 2010)...28 vi

8 Case 2:11-cv LMA-JCW Document 67 Filed 07/11/11 Page 8 of 57 Porter v. Warn Holding Co., 328 U.S. 395 (1946)...33, 34, 35 Project Vote v. Blackwell, No. 1:06-CV-1628, 2009 WL (N.D. Ohio Mar. 31, 2009)...24 Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898 (2d Cir. 1993)...17, 20 Rhodes v. Stewart, 488 U.S. 1 (1988)...25 Roark & Hardee LP v. City of Austin, 522 F.3d 533 (5th Cir. 2008)...22, 23 Rolston v. Crittenden, 120 U.S. 390 (1887)...39 Rowan Co., Inc. v. Griffin, 876 F.2d 26 (5th Cir. 1989)...29 Ruiz v. Estelle, 679 F.2d 1115 (5th Cir. 1982)...37 Ruiz v. Estelle 688 F.2d 266 (5th Cir. 1982)...37 Sherwin-Williams Co. v. Holmes County, 343 F.3d 383 (5th Cir. 2003)... passim Smith v. Pacific Props. & Dev. Corp., 358 F.3d 1097 (9th Cir. 2004)...20 Spivey v. Robertson, 197 F.3d 772 (5th Cir. 1999)...5, 19 St. Paul Ins. Co. v. Trejo, 39 F.3d 585 (5th Cir. 1994)...27, 28 Sullivan v. Little Hunting Park, Inc. 396 U.S. 229 (1969)...30 Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1 (1971)...30, 31 Texas Midstream Gas Servs., L.L.C. v. City of Grand Prairie, No. 3:08-CV-1724-D, 2008 WL (N.D. Tex. Nov. 25, 2008)...10 vii

9 Case 2:11-cv LMA-JCW Document 67 Filed 07/11/11 Page 9 of 57 Texas v. West Publ g Co., 882 F.2d 171 (5th Cir. 1989)...10 Thomas v. Carbide Agric. Prods. Co., 473 U.S. 568 (1985)...9 Travelers Ins. Co. v. La. Farm Bureau Fed n, 996 F.2d 774 (5th Cir.1993)...27, 29 United States Student Ass n Found. v. Land, 585 F. Supp. 2d 925 (E.D. Mich. 2008)...16, 20 United States v. New York, 700 F. Supp. 2d 186 (N.D.N.Y. 2010)...24 Vulcan Materials Co. v. City of Tehuacana, 238 F.3d 382 (5th Cir. 2001)...29 Warth v. Seldin, 422 U.S. 490 (1975)...21 Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974)...37 Young v. Pierce, 822 F.2d 1368 (5th Cir. 1987)...37 DOCKETED CASES Ass n of Comm. Orgs. For Reform Now v. Levy, No CV-C-NKL (W.D. Mo.), Dkt. No. 133 (filed June 25, 2009)...33 Harkless v. Brunner, No, 1:06-CV-2284 (N.D. Ohio), Dkt No. 85 (filed Nov. 25, 2009)...32 Indiana State Conf. of the NAACP v. Gargano, No. 1:09-cv-0849-TWP-DML (S.D. Ind.), Dkt No. 143, Attch. 1 (filed May 12, 2011)...33 United States v. Rhode Island, No. 1:11-cv S-LDA (D. R.I.), Dkt. No. 2 (filed March 18, 2011)...32 Valdez v. Duran, No. 09-cv-668 (JCH/DJS) (D. N.M.), Dkt No. 148 (filed Feb. 24, 2011)...32 viii

10 Case 2:11-cv LMA-JCW Document 67 Filed 07/11/11 Page 10 of 57 STATUTES 28 U.S.C. 2201(a) U.S.C U.S.C. 1973gg, et seq U.S.C. 1973gg(b)(1)...3, U.S.C. 1973gg-5(a)(4)(A)(iii) U.S.C. 1973gg-5(a)(6)(A) U.S.C. 1973gg-5(a)(6)(B) U.S.C. 1973gg-5(a)(6)(C) U.S.C. 1973gg-5(d) U.S.C. 1973gg U.S.C. 1973gg-9(b)...5, 6 42 U.S.C. 1973gg-9(b)(1)...9, U.S.C. 1973gg-9(b)(2)...27, U.S.C U.S.C. 2000e, et seq...36 La. Rev. Stat. Ann. 18:18...1, 4, 38 La. Rev. Stat. Ann. 18: , La. Rev. Stat. Ann. 18:116(A)(1)...4, 47 La. Rev. Stat. Ann. 18:116(B)(1)(a)...44 La. Rev. Stat. Ann. 18:116(C)(1)...41 La. Rev. Stat. Ann. 18:116(C)(1)(a)...41 La. Rev. Stat. Ann. 18:116(C)(1)(b)...41 La. Rev. Stat. Ann. 18:116(D)...44 La. Rev. Stat. Ann. 18:116(G)...44 ix

11 Case 2:11-cv LMA-JCW Document 67 Filed 07/11/11 Page 11 of 57 La. Rev. Stat. Ann. 18: , 38, 43 La. Rev. Stat. Ann. 18:117(A)...44 La. Rev. Stat. Ann. 18: Fed. R. Civ. P. 12(b)(6)...5, 30, 32 LEGISLATIVE MATERIALS H.B. 209, 1994 Leg., 3d Extraordinary Sess., 1994 La. Acts 10 (La. 1994)...4, 43 H.R. Rep. No (1993)...3, 35 S. Rep. No (1991)...35 OTHER AUTHORITIES Ballentine s Law Dictionary (3d ed. 2010)...34 Black s Law Dictionary 800 (9th ed. 2009)...34 Secretary of State, Implementing the National Voter Registration Act in Voter Registration Agencies, (rev. Oct. 2009), available at Louisiana Secretary of State, The National Voter Registration Act, available at Bryan A. Garner, A Dictionary of Modern Legal Usage (Oxford Univ. Press1990)..34 x

12 Case 2:11-cv LMA-JCW Document 67 Filed 07/11/11 Page 12 of 57 PRELIMINARY STATEMENT Plaintiffs Roy Ferrand, Luther Scott, Jr. and Louisiana State Conference of the NAACP (collectively, Plaintiffs ), file this Consolidated Memorandum in Opposition to three separate motions to dismiss filed by Defendants Bruce Greenstein, Tom Schedler, and Ruth Johnson. See Dkt. Nos. 25, 26, 28. This action seeks to bring Defendants into compliance with their obligations under Section 7 of the federal National Voter Registration Act, 42 U.S.C. 1973gg, et seq. ( NVRA ), and with Louisiana State statutes implementing the NVRA. La. Rev. Stat. Ann. 18:18, 18:116, 18:117. Plaintiffs Roy Ferrand and Luther Scott, Jr. allege that they, along with thousands of other Louisiana citizens, have been denied their right to complete and submit voter registration application forms at public assistance offices by Defendants. Compl , 14-15, Plaintiff Louisiana State Conference of the NAACP ( NAACP ) alleges that it has expended and will continue to expend significant resources registering individuals to vote who should have been offered that opportunity by Defendants. Id. 13, In their respective motions to dismiss, Defendants raise five principal issues: 1) That Plaintiffs filed suit prior to the expiration of the mandatory 90-day notice period required under the NVRA; 2) That Plaintiff NAACP lacks standing to bring suit under the NVRA; 3) That declaratory relief is unavailable for allegations stemming from Defendants past violations of the NVRA; 4) That court-approved monitoring and reporting requirements are inappropriate in NVRA cases. 5) That the Eleventh Amendment bars Plaintiffs state law claims; and 1

13 Case 2:11-cv LMA-JCW Document 67 Filed 07/11/11 Page 13 of 57 SOS Br. at 2, DHH Br. at (incorporating by reference arguments raised in SOS Br.), DCFS Br. at 1-2 (incorporating by reference arguments raised in SOS and DHH Brs.). 1 These contentions, which we address in turn here, are wholly without merit. First, Plaintiffs provided adequate notice to Defendants by letter dated January 12, 2011 (the Notice Letter, attached to the Complaint as Ex. A), which specifically identified those agencies defaulting on their NVRA obligations, and set forth the nature of those obligations. Defendants cite no authority for their naked assertion that the statute requires a more particularized form of notice. Second, the Fifth Circuit has established that the injury suffered by Plaintiff NAACP namely, that it has expended resources to register voters who should have been provided that opportunity by Defendants is sufficient to confer standing to bring suit under the NVRA. Once again, Defendants can cite no contrary authority. Third, courts routinely grant declaratory relief in NVRA cases. Plaintiffs Complaint alleges past, present, and future violations of the statute by Defendants, and therefore constitutes a proper basis for declaratory relief. Fourth, courts routinely require monitoring and reporting requirements at the remedial stage of cases that, like this one, allege long-standing statutory violations, even where the statute at issue does not expressly provide for such monitoring. Indeed, every recent NVRA case that has been resolved favorably for plaintiffs has involved monitoring and reporting requirements. In any event, a determination of the proper scope of equitable relief is a question for the remedial stage of this litigation, and is inappropriate on a motion to 1 Throughout this memorandum, Defendant Secretary of State Schedler s Memorandum in Support of his Motion to Dismiss is referred to as SOS Br. at, Defendant Secretary of Health and Hospitals Bruce Greenstein s Memorandum is referred to as DHH Br. at, and Defendant Secretary of Children and Family Services Ruth Johnson s Memorandum is referred to as DCFS Br. at. 2

14 Case 2:11-cv LMA-JCW Document 67 Filed 07/11/11 Page 14 of 57 dismiss. Fifth, the Eleventh Amendment does not bar claims for violations of the state statutes at issue in this case for two independent reasons: these state statutes prescribe purely nondiscretionary ministerial duties, and they implement federal legal requirements. Based on the reasons set forth in this memorandum, Defendants Motions to Dismiss should be denied in their entirety. 2 STATEMENT OF FACTS Congress enacted the National Voter Registration Act ( NVRA ) in The express purpose of the statute is to increase the number of eligible citizens who register to vote in elections for Federal office, 42 U.S.C. 1973gg(b)(1), including the poor and persons with disabilities who do not have drivers [sic] licenses and will not come into contact with [motor vehicle agencies], H.R. Rep. No , at 19 (1993) (Conf. Rep.). The NVRA requires that all public assistance offices distribute a voter registration application form with each application for public assistance, and with each recertification, renewal, or change of address form relating to such assistance (referred to herein as a covered transaction. ). 42 U.S.C. 1973gg-5(a)(6)(A). The NVRA also requires that all public assistance offices distribute a form (referred to herein as the voter preference form ) with each covered transaction that advises each client that if s/he is not currently registered to 2 Plaintiffs note that, in their three respective motions to dismiss, Defendants do not raise a single contention that, even if credited fully, would resolve the entirety of this case. At best, Defendants contentions demand the dismissal of some of Plaintiffs claims for instance, by dismissing some of Plaintiffs requested relief (e.g., declaratory relief), but not all of the remedies sought; or by dismissing one, but not all of the Plaintiffs on standing grounds (i.e., Plaintiff NAACP). But none of these arguments can dispose of this litigation in full. The only issue raised by Defendants that implicates the entirety of this case is their contention that Plaintiffs brought suit before the expiration of the statutory 90-day notice period, but even that argument would require only that Plaintiffs re-file their complaint at a subsequent date, and would not resolve the substantive disputes underlying this matter. 3

15 Case 2:11-cv LMA-JCW Document 67 Filed 07/11/11 Page 15 of 57 vote, s/he can register to vote with assistance from the agency, and that provides the client an opportunity to record his/her intention with respect to voter registration. 42 U.S.C. 1973gg-5(a)(6)(B). The NVRA also requires that public assistance agencies provide their clients with the same degree of assistance in completing voter registration applications as is provided by the office in completing its own forms, 42 U.S.C. 1973gg-5(a)(6)(C), and to transmit completed forms to the appropriate state election official in a timely manner, 42 U.S.C. 1973gg-5(a)(4)(A)(iii), 1973gg-5(d). Louisiana codified and implemented the NVRA in state statutes, by passing H.B. 209, An act. to provide for the implementation of the National Voter Registration Act of H.B. 209, 1994 Leg., 3d Extraordinary Sess., 1994 La. Acts 10 (La. 1994) The Louisiana Department of Health and Hospitals (DHH) and the Louisiana Department of Children and Family Services (DCFS) are offices in Louisiana that provide public assistance within the meaning of the NVRA, and as such are designated voter registration agencies with mandatory obligations related to voter registration under the statute. See La. Rev. Stat. Ann. 18:116(A)(1). Defendant Tom Schedler, as the Secretary of State, is the chief elections officer within the meaning of the NVRA and must coordinate the State s responsibilities under the NVRA. La. Rev. Stat. Ann 18:18, 18:421. Plaintiffs Ferrand and Scott are recipients of public assistance who are not registered to vote in the State of Louisiana, and who, like many other Louisiana citizens, have been denied the opportunity to complete and submit a voter registration application form at a public assistance office, and continue to suffer injury as a result of Defendants violations. Compl , 14-15, Plaintiff NAACP devotes substantial time and resources to voter registration drives intended to register low-income African Americans in the state. Id. 4

16 Case 2:11-cv LMA-JCW Document 67 Filed 07/11/11 Page 16 of 57 at 13. Plaintiff NAACP allocates increased resources to voter registration drives where there is a greater need for voter registration services, and when Defendants fail to comply with the NVRA, Plaintiff NAACP must divert scarce resources from its other activities in order to make up for the State s failure to comply with the NVRA. Id. at On January 12, 2011, the NAACP, on behalf of itself, its members, and all similarly situated persons and organizations, sent a Notice Letter to Defendants identifying the State agencies headed by Defendants as non-compliant with the NVRA, and identifying specific NVRA-related obligations on which Defendants defaulted. Compl. Ex. A. Immediately thereafter, Defendants Greenstein and Johnson were able to initiate investigations into their NVRA non-compliance. See DHH Br. at 3; DCFS Br. at 3. Pursuant to the NVRA s 90-day notice provision, suit was filed on April 19, 2011, 98 days after the January 12, 2011 notice letter. 42 U.S.C. 1973gg-9(b). LEGAL STANDARD In assessing a complaint on a Rule 12(b)(6) motion to dismiss, the district court must accept all well-pleaded facts as true and liberally construe all factual allegations in the light most favorable to the plaintiff. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996); Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997); Lentz v. Trinchard, 730 F. Supp. 2d 567, 579 (E.D. La. 2010). A district court may not look beyond the factual allegations in the pleadings, Lentz, 730 F. Supp. 2d at 579, and should only dismiss a complaint, or any part of it, for failure to state a claim upon which relief can be granted if the plaintiff has not set forth a factual allegation in support of his claim that would entitle him to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). 5

17 Case 2:11-cv LMA-JCW Document 67 Filed 07/11/11 Page 17 of 57 ARGUMENT I. PLAINTIFFS HAVE SATISFIED THE NOTICE REQUIREMENT Plaintiffs satisfied the NVRA s notice requirement by sending a letter that identified the State agencies that are in violation of the NVRA, and the obligations on which those agencies are defaulting. The NVRA requires that an aggrieved party provide written notice of the violation 90 days prior to the initiation of litigation. 42 U.S.C. 1973gg-9(b). The purpose of the notice requirement is to provide states in violation of the Act an opportunity to attempt compliance before facing litigation. Ass n of Cmty. Orgs. for Reform Now v. Miller, 129 F.3d 833, 838 (6th Cir. 1997); Ass n of Comty. Orgs. for Reform Now v. Scott, No. 08-CV-4084-NKL, 2008 U.S. Dist. LEXIS 51671, at *12 (W.D. Mo. July 7, 2008). As demonstrated below, Plaintiffs have more than satisfied the Notice requirement and fulfilled its purpose, by providing a detailed recitation of the scope of Defendants NVRA violations. A. Plaintiffs January 12 Notice Letter Provided Defendants with Adequate Notice by Identifying the State Agencies Operating in Violation of the NVRA, and Specifying the Obligations on which They Were Defaulting Plaintiffs January 12, 2011 Notice Letter, which was sent 98 days before Plaintiffs filed their Complaint on April 19, 2011, plainly satisfied the Notice requirement. The Notice Letter identified those Louisiana public assistance agencies namely, the Department of Children and Family Services and the Department of Health and Hospitals, that are failing to provide mandatory voter registration services as required by the NVRA, and are therefore not in compliance with the [Act]. Compl. Ex. A at 1. The Notice Letter also plainly identified the specific voter registration-related services that Defendants have failed and are failing to provide, stating that, as of January 12, 2011, the Defendants are failing to provide mandatory voter registration services at [Louisiana] public assistance offices, 6

18 Case 2:11-cv LMA-JCW Document 67 Filed 07/11/11 Page 18 of 57 including the obligations to: give clients a voter registration application form with each application for benefits, recertification, and change of address ; give clients a form that provides space to record his/her decision whether or not to register with the agency at that time (the voter preference form ); provide the same degree of assistance with regard to completion of the voter registration application form as is provided by the office with regard to the completion of its own forms, unless the applicant refuses such assistance ; and collect[] and transmit[] completed voter registration application forms to the appropriate election official in a timely manner. Id. In support of these contentions, the Notice Letter also provided detailed information and statistics that further identified the scope of Defendants violations, 3 and stated, [t]his letter serves as notice of a violation of the NVRA Id. Clearly, the Notice Letter discharged Plaintiffs notice obligations under the statute. As the very case relied on by Defendant Schedler holds, the statement that [a state public assistance agency] failed to provide voter registration services to its clients that made their initial application for services is sufficient to dispense with the notice provisions of the NVRA. Discovery procedures may be employed to test the accuracy of these allegations. Nat l Coal. for Students with Disabilities Educ. & Legal Def. Fund v. Scales, 150 F. Supp. 2d 3 Specifically, the Notice Letter asserts that voter registration applications collected at public assistance agencies in Louisiana had fallen from 74,636 in to only 8,688 in , representing an 88% decline. See Compl. Ex. A at 1. The Notice Letter further explained that [w]e ha[d] identified widespread noncompliance with the law, id. at 2, including: a survey reveal[ing] a number of instances in which individuals were not provided with an application to register to vote as a part of their application for benefits, recertification, or change of address as required by law ; individuals who reported they had not received any offer of voter registration by agency staff, even though such an offer should have been made ; personnel at numerous agencies around the state [who] were wholly unfamiliar with their voter registration obligations under the NVRA ; and a number of agencies around the state [that] did not have hard copies of voter registration forms available for clients Id. 7

19 Case 2:11-cv LMA-JCW Document 67 Filed 07/11/11 Page 19 of , 851 (D. Md. 2001) (emphasis in original) (cited in SOS Br. at 11). There is no real dispute that Defendants received notice of noncompliance with the NVRA through the Notice letter. In fact, Defendants Greenstein and Johnson concede that the statements in the Notice Letter prompted Defendants to undertake internal investigations to determine compliance or non-compliance with the NVRA, and to attempt to resolve their violations at DHH and DCFS offices, effectively waiving any argument as to inadequacy of notice. DHH Br. at 2-3 (conceding that, [i]n a letter dated January 12, 2011, counsel for plaintiffs notified Bruce D. Greenstein that they believed DHH was not in compliance with the Act, and stating that thereafter, DHH review[ed] its procedures, and that [t]hat review has now been concluded ) (emphasis added); DCFS Br. at 3 (conceding that, through the Notice Letter, Plaintiffs notified [Defendant Johnson,] the DCFS Secretary that they believed DCFS was not in compliance with the Act and stating that, after receipt of the Notice Letter, DCFS investigate[d] and act[ed] upon the Plaintiffs allegations by review[ing] its policies and procedures with respect to its obligations under the Act ) (emphasis added). Indeed, Defendant Greenstein conceded that DHH initiated such efforts immediately after receiving the Notice Letter. See DHH Response Letter at 1 (attached herein as Ex. A and referenced in Compl. at 88-89) (acknowledging that the Notice Letter outlined certain allegations of the Department s noncompliance with the [NVRA], and stating, we will immediately begin a review of our procedures ) (emphasis added). In the face of these conclusive concessions, Defendants now contend that the Notice Letter was insufficient because it refers to violations at unspecified locations. SOS Br. at 11. Yet, Defendants provide no authority for the proposition that such a degree of specificity is required to satisfy the notice provision of the statute, and they fail to cite a single case 8

20 Case 2:11-cv LMA-JCW Document 67 Filed 07/11/11 Page 20 of 57 where an NVRA complaint was dismissed for insufficient specificity in a notice letter. Indeed, the NVRA does not require that a plaintiff disclose all available information that substantiates a violation, or describe the defendants violations with heightened particularity. Rather, the notice statute only requires the aggrieved party to inform the state chief election official of the violation, not of the specific agency or agencies which may play a part in the violation. Scott, 2008 U.S. Dist. LEXIS 51671, at *11 (citing 42 U.S.C. 1973gg-9(b)(1), (2)) (emphasis in original). Thus, courts have found adequate notice in NVRA cases where plaintiffs had not even identified all of the defendant agencies that were later alleged to be non-compliant with the statute. Id. (finding adequate notice even though plaintiffs did not provide [defendants] notice that the local election authorities were in violation of the NVRA ). Here, by contrast, the Notice Letter specifically identified the non-compliant State agencies that are named as Defendants in the complaint (i.e., DCFS, DHH, and SOS). Compl. Ex. A at 1. Moreover, Plaintiffs Notice Letter also specifically identified the federally-required obligations on which Defendants had defaulted (i.e., failure to provide clients with a voter preference form or a voter registration application form with each application for benefits, recertification, and change of address; failure to provide assistance in completing the voter registration application form; and failure to accept and transmit completed voter registration application forms in a timely manner). Id. Accordingly, the January 12 Notice Letter was more than sufficient to discharge Plaintiffs threshold notice obligations, and this case is ripe for consideration. 4 4 The Notice Letter also disposes of any ripeness concerns raised by Defendant Greenstein. Ripeness doctrine is intended to discourage the litigation of contingent events that either may not occur at all, or, at least, may not occur as anticipated. Thomas v. Carbide Agric. Prods. Co., 473 U.S. 568, (1985). The Fifth Circuit has explained that an actual controversy that is ripe for 9

21 Case 2:11-cv LMA-JCW Document 67 Filed 07/11/11 Page 21 of 57 Finally, to the extent that Defendants imply that the recent changes in NVRA-related practices that they have purportedly adopted in response to the Notice Letter have cured their violations, they contradict their own assertion that they lacked adequate information so as to resolve NVRA compliance issues. Moreover, any such assertion is not properly before the Court on this motion to dismiss. 5 B. The Notice Letter Discharged the Notice Obligations for All Named Individual and Organizational Plaintiffs Courts in NVRA cases have held, quite sensibly, that, where the name of an organizational plaintiff appears on a notice letter, [r]equiring [individual] plaintiffs to give adjudication exists where a substantial controversy of sufficient immediacy and reality [exists] between parties having adverse legal interests. Texas v. West Publ g Co., 882 F.2d 171, 175 (5th Cir. 1989) (alteration in original) (internal citations and quotation marks omitted). Here, Plaintiffs Ferrand and Scott have alleged that they have been denied their rights under the NVRA to complete and submit a voter registration form at public assistance agencies in Louisiana, Compl , while Plaintiff NAACP asserts that it has been forced to expend resources registering voters due to Defendants violations of the NVRA, id These injuries have occurred, and remain ongoing. Where, as here, the dispute between the parties is ongoing, and not contingent on events that may or may not occur, the controversy is ripe for adjudication. Leclerc v. Webb, 270 F. Supp. 2d 779, 788 (E.D. La. 2003) (refusing dismissal on ripeness grounds where the case does not involve [a] speculative and hypothetical type of injury ). This is not a case involving a purely abstract or hypothetical dispute, where certain contingencies have not yet occurred, or the potential harm is too speculative to pose an immediate and real threat. Compare Orix Credit Alliance, Inc. v. Wolfe, 212 F.3d 891, 896 (5th Cir. 2000) (deeming as unripe a declaratory judgment action that sought to bar the filing of a broad class of unasserted, unthreatened, and unknown claims ), with Texas Midstream Gas Servs., L.L.C. v. City of Grand Prairie, No. 3:08-CV-1724-D, 2008 WL , at *3 (N.D. Tex. Nov. 25, 2008) (finding that plaintiff's challenge to permitting procedures was ripe because the plaintiff's claims do not depend on whether or when [a permit] ultimately is granted or denied ). 5 Defendants have not formally asserted that their recent actions have rendered Plaintiffs claims moot, and any mootness argument would be premised entirely on materials outside of the pleadings, which may not be considered on a 12(b)(6) motion to dismiss. Colle v. Brazos Cnty., Tex., 981 F.2d 237, 243 (5th Cir. 1993) (on a motion to dismiss, a court may not go outside the pleadings. We accept all well-pleaded facts as true and view them in the light most favorable to the plaintiff. We cannot uphold the dismissal unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. ) (footnote omitted) (quoting Partridge v. Two Unknown Police Officers of Houston, 791 F.2d 1182, (5th Cir. 1986)). Moreover, defendants asserting mootness bear a heavy burden, and cannot establish mootness solely on the basis of changed conduct, as [i]t is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (quoting City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289 (1982)). 10

22 Case 2:11-cv LMA-JCW Document 67 Filed 07/11/11 Page 22 of 57 actual notice would have been unnecessary with regard to the purpose of the notice requirement, because the defendants had already been made aware of their alleged violations. Miller, 129 F.3d at 838. Here, Plaintiff s Notice Letter provided all of the material information necessary for Defendants to attempt compliance with the NVRA, which is the only purpose of the notice provision. See Miller, 129 F.3d at 838; Scott, 2008 U.S. Dist. LEXIS 51671, at *12. The names of the individual Plaintiffs are plainly irrelevant, given the information outlining the material aspects of Defendants broad non-compliance. Moreover, the Notice Letter was issued on behalf of the Louisiana State Conference of the [NAACP], its members, and all similarly situated persons and organizations. Compl. Ex. A at 1. As Defendant Greenstein concedes, the letter was not sent by a single entity, but was from [P]laintiffs counsel. DHH Br. at 3. As issued, the Notice Letter was sufficient to discharge the notice requirement for all Plaintiffs. Although Defendants seek to construe the Notice provision as a bureaucratic trap, the text of the statute does not require that all aggrieved individuals or all plaintiffs be identified in an initial notice letter, and Defendants have not cited a single case where NVRA claims have been dismissed on that basis. Contrary to Defendant Schedler s assertion, the Sixth Circuit s opinion in Miller does not state that its holding is limited only to situations where a defendant refus[es] to follow the NVRA in any respect, SOS Br. at 9. Indeed, other courts have made clear that Miller stands for the broad proposition that the names of all individual plaintiffs need not appear on a notice letter so long as one plaintiff has put the defendants on adequate notice of the material aspects of their NVRA violations, because the purpose of the notice requirement is to provide states in violation of the [NVRA] an opportunity to attempt compliance before facing litigation, not to identify all individuals who have been denied an opportunity to 11

23 Case 2:11-cv LMA-JCW Document 67 Filed 07/11/11 Page 23 of 57 register to vote. Harkless v. Blackwell, 467 F. Supp. 2d 754, (N.D. Ohio 2006) (alteration in original) (quoting Miller, 129 F.3d at 838) (individual NVRA plaintiff need not give notice where organizational plaintiff gave proper notice to defendants), rev d on other grounds, 545 F.3d 445 (6th Cir. 2008); see also Scott, 2008 U.S. Dist. LEXIS, at *11 (same). The only case cited by Defendants on this issue is Broyles v. Texas, 618 F. Supp. 2d 661 (S.D. Tex. 2009), a case clearly distinguished from the facts of this case. In Broyles, the plaintiffs concede[d] that they provided no pre-suit notice to the defendants of any kind, arguing that notice under the statute is discretionary. Id. at 691. Here, by contrast, 90 days before filing suit, Plaintiffs provided material information necessary for Defendants to attempt compliance. Accordingly, Defendants contentions regarding adequate notice fail. C. Requiring Additional Notice Would Be Futile Even if Plaintiffs initial notice were deemed inadequate which it was not requiring further notice should be excused as futile, for two reasons. First, Defendants do not contend that they did not receive sufficient notice at all, only that adequate notice was not received until February 25, 2011, 6 by virtue of a second letter received from Plaintiffs. 7 Under Defendants position, the proper filing date for the 6 SOS Br. at 10 ( notice was afforded by a February 25, 2011 letter ); DHH Br. at 14 (conceding that the letter from plaintiff Louisiana State Conference of the NAACP dated February 25, 2011 did provide adequate notice ); DCFS Br. at 5 ( adequate notice was subsequently provided ). 7 Although the original January Notice Letter from Plaintiffs concluded by stating, [w]e are eager to work cooperatively with you to assist with developing a plan that will quickly bring the state into compliance with Section 7 of the NVRA, and added, [s]hould you have any questions, please feel to contact [Plaintiffs Counsel], Compl. Ex. A at 2, Defendant Schedler waited until February 14 over a month after the date of the Notice Letter to send a letter to Plaintiffs denying that he had received adequate notice. Compl. 92. In that response, Defendant Schedler did not request additional details of the Defendants violations or even acknowledge Plaintiffs offer to meet and confer. As a courtesy, Plaintiffs sent a second letter to Defendants, dated February 25, 2011, setting forth additional details of Defendants NVRA violations, Compl. 93, which Defendants admit provided them with adequate notice, see supra n.6. 12

24 Case 2:11-cv LMA-JCW Document 67 Filed 07/11/11 Page 24 of 57 Complaint would be on May 26, 2011, see SOS Br. at 12, a date that has long passed. Defendants have long had sufficient notice of their NVRA violations to investigate or to request additional details from Plaintiffs. Dismissing this case and requiring a re-filing of the Complaint would be a needless waste of judicial resources and attorney time. 8 Second, where as here, Defendants assert that Louisiana has been following the NVRA since the 1990 s SOS Br. at 11, and indicate that they do not believe that they are or ever have been out of compliance with the NVRA, requiring additional notice would be futile. Scott, 2008 U.S. Dist. LEXIS 51671, at *12 (where defendants see no potential or actual violation of the NVRA, requiring notice would be futile. ). Cf. Condon v. Reno, 913 F. Supp. 946, 960 (D.S.C. 1995) (holding, in an NVRA case, that [e]xhaustion of a remedy is not required when it would clearly be futile ). There is obviously a substantive dispute between the parties as to what is necessary to comply with the statute, which will not be cured by the passage of additional time. II. PLAINTIFF NAACP HAS ORGANIZATIONAL STANDING UNDER THE FIFTH CIRCUIT S CONTROLLING DECISION IN FOWLER As Defendants concede, the issue of organizational standing in this case is controlled by the Fifth Circuit s decision in Ass n of Cmty. Orgs. for Reform Now v. Fowler, 178 F.3d 350, (5th Cir. 1999) (cited in SOS Br. at 18), which held that the exact same injury alleged by Plaintiff NAACP in this case namely, that an organization has expended resources to register voters who should have been provided that opportunity by Defendants 8 Even if Defendants were correct that (a) the initial Notice Letter was inadequate, and (b) that the individual plaintiffs in this case, Messrs. Ferrand and Scott, should be required to submit individual notice to defendants before filing suit, there can be no dispute that service of the Complaint itself, filed on April 19, 2011, constituted such adequate notice. Thus, even assuming arguendo that Defendants position is correct which it is not the only necessary consequence would be to require re-filing of this action 90 days after the Complaint was originally served on April 19, 2011, or on July 18,

25 Case 2:11-cv LMA-JCW Document 67 Filed 07/11/11 Page 25 of 57 is sufficient to confer standing to bring suit under Section 7 of the NVRA. As explained in Fowler, in order to establish standing, a plaintiff must demonstrate that he or she has suffered injury in fact, that the injury is fairly traceable to the actions of the defendant, and that the injury will likely be redressed by a favorable decision. Id. at 356 (quoting Bennett v. Spear, 520 U.S. 154, 162 (1997) (internal citation and quotation marks omitted). See also Lujan v. Defenders of Wildlife, 504 U.S. 555, 561(1992) ( At the pleading stage, general factual allegations of injury resulting from the defendant s conduct may suffice, for on a motion to dismiss we presum[e] that general factual allegations embrace those specific facts that are necessary to support the claim. ) (quoting Lujan v. Nat l Wildlife Fed n, 497 U.S. 871, 889 (1990)). Under Fowler, Plaintiff NAACP has satisfied each of the three elements of standing: Plaintiff NAACP has devoted time and resources to registering individuals to vote who should have been registered by Defendants. Plaintiff NAACP has therefore spent some of its most precious resources on efforts that counteract Defendants non-compliance with the NVRA, resources that could have been devoted to other activities but for Defendants NVRA violations. Resolution of this case in Plaintiffs favor would enable Plaintiff NAACP to reallocate those resources towards registering other individuals to vote, or to other activities altogether, which establishes standing in this case. See Fowler, 178 F.3d at A. Plaintiff NAACP Has Suffered and Continues to Suffer Injury-in-Fact The Fifth Circuit has made clear that an organizational plaintiff has standing to bring suit under the NVRA where the plaintiff organization has expended definite resources counteracting the effects of Louisiana s alleged failure to implement [the NVRA] Fowler, 178 F.3d at 360. Here, Plaintiff NAACP has plainly alleged that Defendants 14

26 Case 2:11-cv LMA-JCW Document 67 Filed 07/11/11 Page 26 of 57 continued noncompliance with Section 7 has resulted in many low-income and minority Louisiana citizens missing their opportunity to complete and submit a voter registration application form, and that, [a]s a result of Defendants violations, Plaintiff Louisiana NAACP has allocated volunteer time to voter registration that could have been devoted to registering voters at other locations, or to other activities altogether. Compl. 113, 118. Like the organizational plaintiff in Fowler, Plaintiff NAACP regularly conducts voter registration drives that focus on impoverished individuals, who are precisely the population that Section 7 of the NVRA seeks to reach. Compare Compl. 111 ( Plaintiff Louisiana NAACP engages in regular voter registration drives and voter education activities direct[ing] its voter registration and education activities at poor African Americans, because they are less likely to be registered than the more affluent ), with Fowler, 178 F.3d at 361 (noting that Plaintiff conducts at least one voter registration drive a year in Louisiana, and its registration drives focus on registering people at welfare waiting rooms, unemployment offices, and on Food Stamp lines. ). Exactly as in Fowler, Defendants non-compliance with the NVRA has forced Plaintiff NAACP to expend resources on voter registration that, but for Defendants non-compliance, it could devote elsewhere. Compare Compl ( There is no shortage of additional projects to which the Plaintiff Louisiana NAACP could devote its resources if there were less need for voter registration-related activities as a result of Defendants violations. Plaintiff Louisiana NAACP s inability to best use its volunteers and resources will continue unless and until Defendants violations are remedied. ), with Fowler, 178 F.3d at 361 ( It is these wasted resources, which [plaintiff] could have put to use registering voters that the NVRA, even properly implemented, would not have reached (or which [plaintiff] could have put toward any other use it wished), that provide [plaintiff] with 15

27 Case 2:11-cv LMA-JCW Document 67 Filed 07/11/11 Page 27 of 57 standing ). Finally, as in Fowler, voter registration work is a central component of Plaintiff NAACP s organizational purpose. Plaintiff NAACP has alleged that its mission is to ensure the political, educational, social, and economic equality of rights of all persons, and that, [i]n furtherance of its mission, Plaintiff Louisiana NAACP has engaged in voter registration and education efforts, and that the [e]nforcement of civil rights statutes relating to voting, including the National Voter Registration Act, is a core concern of Plaintiff Louisiana NAACP. Compl Compare Compl ( Voter registration and education is a core component of Plaintiff Louisiana NAACP s mission and central to the accomplishment of its objectives. ), with Fowler, 178 F.3d at 361 (organizational plaintiff had sufficiently alleged standing where its purpose is to increase the political power of low- and moderate-income people in the political process. ), and United States Student Ass n Found. v. Land, 585 F. Supp. 2d 925, 934 (E.D. Mich. 2008) (finding organizational standing where organizational plaintiff claims an interest in politically empowering the communities they serve, which interest they further by, among other things, conducting voter registration drives. ). Defendants do not contest the allegation that Plaintiff NAACP has lost volunteer time due to Defendants violations of the NVRA, arguing instead that lost volunteer time is insufficient to establish standing. But none of the cases in Defendant Schedler s brief limit actionable injury to an organization s expenditure of money. To the contrary, Fowler held that the organizational plaintiff in that case had sufficiently alleged standing by virtue of wasted resources in terms of money or time [spent] counteracting Louisiana s alleged 16

28 Case 2:11-cv LMA-JCW Document 67 Filed 07/11/11 Page 28 of 57 failure [to comply with the NVRA,] 178 F.3d at 361, 367 (emphasis added). 9 Cf. Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898, 905 (2d Cir. 1993) (finding organizational standing under the Fair Housing Act where organization s staff members were force to divert attention from regular tasks as a result of defendants activities). For Plaintiff NAACP, volunteer time is, plainly one of its most significant resources. Compl But under Defendants theory, no volunteer organization could ever assert standing, a result that is not compelled by any authority. B. Plaintiff NAACP s Injury Is Directly Traceable to Defendants Violations of the NVRA, and Is Redressable by a Favorable Decision Plaintiffs allege that their injury is traceable to Defendants conduct, stating in the Complaint that Defendants continued noncompliance with Section 7 of the NVRA frustrates the organizational mission of Plaintiff Louisiana NAACP to protect the civil rights generally, and voting rights in particular, of the members of the communities it serves in Louisiana, and has had a direct effect on Plaintiff Louisiana NAACP s volunteer allocation with respect to its voter registration and education efforts. Id. at 114. Like the organizational plaintiff in Fowler, Plaintiff NAACP directs its voter registration efforts to areas that have the lowest registration rates. Compare Fowler, 178 F.3d at 361 (organizational plaintiff concentrate[s] this voter registration campaign in areas 9 To be sure, the Court in Fowler held that the organizational plaintiff, while having standing to sue in its own right, could not establish associational standing as a representative of its individual members on the basis of any particular individual member s volunteer time. 178 F.3d at 365. But the Court reached that determination because the organizational plaintiff in Fowler could point[] to no individual member who had spent any discrete, particularized, or concrete amount of money or time counteracting Louisiana's alleged failure [to comply with the NVRA]. Id. at 367. The Court in Fowler, however, went on to determine that the organizational plaintiff had established standing on its own behalf. See id. at 361. Here, Plaintiff NAACP asserts standing on its own behalf, not as a representative of the members, and the loss of resources it has experienced as an organization is exactly the same as that of the organizational plaintiff ultimately found to have sufficiently stated a claim as to standing in Fowler. 17