Case 1:09-cv JCH-DJS Document Filed 09/24/10 Page 1 of 10 UNITED STATES DISTRICT COURT DISTRICT OF NEW MEXICO

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1 Case 1:09-cv JCH-DJS Document Filed 09/24/10 Page 1 of 10 UNITED STATES DISTRICT COURT DISTRICT OF NEW MEXICO CELIA VALDEZ GRACIELA GRAJEDA, ) ROANNA BEGAY, JESSE RODRIGUEZ, ) and COMMUNITY ORGANIZATIONS FOR ) REFORM NOW ) ) Plaintiffs, v. ) ) MARY HERRERA, in her official capacity as ) New Mexico Secretary of State, PAMELA S. ) HYDE in her official capacity as Secretary of ) New Mexico Human Services Department, ) FRED SANDOVAL in his official capacity as ) The Director of the Income Support Division ) of the New Mexico Human Services Department, ) CAROLYN INGRAM, in her official capacity ) As the Director of the Medical Assistance Division ) of the New Mexico Human Services Department, ) RICK HOMANS, in his capacity as the Secretary ) of the New Mexico Taxation and Revenue ) Department, and MICHAEL SANDOVAL, in his ) official capacity as the Director of the Motor ) Vehicle Division of the New Mexico Taxation ) and Revenue Department, ) ) Defendants. ) ) Civil Action No: 1:09-cv LAM/DJS ) PLAINTIFFS FIRST SET OF INTERROGATORIES Defendant Mary Herrera hereby serves her Responses to Plaintiffs First Set of Requests for Admission as required by Rule 33 of the Federal Rules of Civil Procedure. Defendant reserves the right to supplement these responses should such supplementation become necessary. Interrogatory No. 1: Describe the organizational structure of the New Mexico Secretary of State s Office showing the direct and indirect reporting responsibilities by position title from office personnel up through and including the position of Secretary of State, and all positions within the Bureau of Elections, and describe any changes in the organizational structure since January 1, 2000, including but not PLAINTIFFS FIRST SET OF INTERROGATORIES Page 1 of 10

2 Case 1:09-cv JCH-DJS Document Filed 09/24/10 Page 2 of 10 limited to, any changes relating to who/which position is responsible for coordinating and administering the Secretary of State s responsibilities under the NVRA. calculated to lead to the discovery of admissible evidence. Specifically, Defendant objects to the cumbersome disclosure of the entire organizational structure of the Secretary of State s Office. Subject to and without waiving these objections, Defendant states that the individuals within the Secretary of State s Office responsible for administering the Office s responsibilities under the NVRA include: (1) Mary Herrera, Secretary of State. (2) Don Francisco Trujillo, Deputy Secretary of State. Mr. Trujillo reports directly to the Secretary of State. (3) A.J. Salazar, Director, Bureau of Elections. Mr. Salazar reports both to Mr. Trujillo and to the Secretary of State. (4) Kelli Fungenzi, Administrator, Bureau of Elections. Ms. Fulgenzi reports directly to Mr. Trujillo. (5) Larry Dominguez, Elections Coordinator. Mr. Dominguez reports directly to Ms. Fulgenzi. (6) Manuel Vildasol, Administrator. Mr. Vildasol reports directly to Mr. Tujillo. From 2000 to 2006, Rebecca Vigil-Giron was the Secretary of State of New Mexico. During the same time period, Liz Perry was the Deputy Secretary of State. From 2000 to 2003, Hoyt Clifton was the Director of the Bureau of Elections. From 2003 to 2004 and again from 2005 to 2006, Denise Lamb was the Director of the Bureau of Elections. From 2004 to 2005, Ernie Marquez was the Director of the Bureau of Elections. From 2006 to 2007, Daniel A. Ivey-Soto was the Director of the Bureau of Elections. In 2008, after the position was open for approximately six months, Gerald Gonzales was the Director of the Bureau of Elections. Mr. Salazar has held the position since April 2009, after another opening in the position of approximately six months. Interrogatory No. 2: Identify each individual who has held a position of authority with respect to voter registration at the Secretary of State s Office since January 1, 2000 (including, but not limited to, the Secretary of State), and identify each additional individual who is or was a representative, employee, or agent of the Secretary of State who has had supervisory or management responsibility for developing, preparing, approving, implementing, conducting training on, or conducting any review or analysis of any policy, requirement, practice, procedure, directive, guideline, or instruction relating to New Mexico s responsibilities under the NVRA since January 1, 2000 (including the individual responsible for drafting the portion of the State s response to the U.S. Election Assistance Commission s Election Administration and Voting Survey that relates to voter registration at HSD, MVD, and MVD Express), describing the nature and scope of that responsibility and identifying the time period during which each individual had that responsibility. PLAINTIFFS FIRST SET OF INTERROGATORIES Page 2 of 10

3 Case 1:09-cv JCH-DJS Document Filed 09/24/10 Page 3 of 10 objection, Defendant refers Plaintiffs to the Objections and Answer to Interrogatory No. 1. Defendant further states that the individual responsible for drafting the portion of the State s response to the U.S. Election Assistance Commission s Election Administration and Voting Survey that relates to voter registration at HSD, MVD, and MVD Express was Larry Dominguez. Interrogatory No. 3: Describe the duties and responsibilities of the Secretary of State to implement, administer, coordinate, oversee, and assure New Mexico s compliance with the requirements of the NVRA since January 1, As the chief election official in New Mexico, the Secretary of State is responsible for overseeing overall compliance with the NVRA. The Secretary of State does not administer any MVD or HSD programs. Accordingly, both MVD and HSD are individually responsible for ensuring compliance with Sections 5 and 7, respectively, of the NVRA. The Secretary of State s role is more that of an ombudsman. The Secretary of State also provides training to other State agencies upon request regarding the NVRA and NVRA compliance. Interrogatory No. 4: Describe all the Secretary of State s policies, requirements, practices, procedures, directives, guidelines, and instructions since January 1, 2000 for implementing, administering, coordinating, overseeing, evaluating, auditing, studying, conducting training on, and assuring compliance with New Mexico s responsibilities under the NVRA, and identify all documents that concern such policies, requirements, practices, procedures, directives, guidelines, and instructions. objection, Defendant states that there are no formal policies regarding NVRA compliance, and that Defendant responds to NVRA-related issues and questions as they arise. Defendant also provides training materials, including manuals and posters, to the relevant state agencies. Interrogatory No. 5: Describe in detail all instructions given to New Mexico County Clerks since January 1, 2000 relating to compliance with the NVRA, including but not limited to instructions on monitoring inventory of voter registration application forms and instructions on distribution of such forms to HSD, MVD, and MVD Express offices. PLAINTIFFS FIRST SET OF INTERROGATORIES Page 3 of 10

4 Case 1:09-cv JCH-DJS Document Filed 09/24/10 Page 4 of 10 objection, Defendant states that the training materials identified in the Answer to Interrogatory No. 5 contain most of the instructions provided to the County Clerks. Defendant does not provide instruction regarding the distribution of voter registration forms other than to make clear that such forms must be made available at the relevant agencies. Interrogatory No. 6: Describe in detail a) what voter registration materials, including all voter registration application forms, notice forms, posters, signs, instructions, policies, and any documents or templates created for the purpose of tracking voter registration data at HSD and MVD offices have been distributed by the Secretary of State or a County Clerk to the HSD, ISD, MAD, MVD, and MVD Express since January 1, 2000; and b) how and when these materials have been distributed since January 1, 2000 including a description of the process by which the Secretary of State s office and any County Clerk determines how many voter registration application forms, notice forms, and other materials are needed by each HSD, ISD, MAD, MVD, and MVD Express office to comply with the NVRA. calculated to lead to the discovery of admissible evidence. Defendant further objects to subparts (a) and (b) of this interrogatory as discrete subparts and will count them accordingly as separate interrogatories. Subject to and without waiving these objections, Defendant states that each agency is responsible for tracking its own voter registration and provides that data to Defendant at the end of every calendar year. Interrogatory No. 7: Identify separately and by year the number of voter registration application forms and voter notice forms distributed by the Secretary of State s Office to the HSD, ISD, MAD, MVD, and MVD Express from January 1, 1995 to the present. calculated to lead to the discovery of admissible evidence. Defendant further objects to the relevancy of the time frame established by this interrogatory. Subject to and without waiving these objections, Defendant states that she does not have sufficient information to answer this interrogatory. Interrogatory No. 8: To the extent that the Secretary of State has entered into or implemented any agreement, written or otherwise, since January 1, 2000 with any other governmental or non-governmental entity, PLAINTIFFS FIRST SET OF INTERROGATORIES Page 4 of 10

5 Case 1:09-cv JCH-DJS Document Filed 09/24/10 Page 5 of 10 including but not limited to any New Mexico County Clerk, to offer voter registration services required under the NVRA to HSD, MVD, or MVD Express clients (including but not limited to offering any third-party voter registration drive), train or otherwise supervise HSD, MVD, or MVD Express staff in their duties required by the NVRA, or distribute voter registration materials to HSD, MVD, and MVD Express offices, describe the nature and terms of the agreement(s), the inception date and duration of the agreement(s), and the parties to the agreement(s). calculated to lead to the discovery of admissible evidence. Defendant further objects to this interrogatory to the extent it requests information protected by any applicable evidentiary privilege, including but not limited to the attorney-client and executive privileges. Subject to and without waiving these objections, Defendant states that no such written agreements exist. Interrogatory No. 9: Identify and describe in detail every action taken by the Secretary of State to make sure that the State of New Mexico has been in compliance with the requirements of the NVRA since January 1, 2000, including every action taken to make sure that the HSD, ISD, MAD, MVD, and MVD Express are in compliance with the requirements of the NVRA. Defendant states that she has updated and distributed manuals to all relevant state agencies regarding NVRA compliance and has promulgated rules to guide those agencies in their compliance with the NVRA. Interrogatory No. 10: Identify and describe all reports, reviews, evaluations, audits, studies, other forms of analysis, and data compilations concerning compliance by HSD, MVD, and MVD Express offices with the requirements of the NVRA, since January 1, calculated to lead to the discovery of admissible evidence. Defendant further objects to the relevancy of the time frame established by this interrogatory. Subject to and without waiving these objections, Defendant states that each relevant agency produces a report at the end of each calendar year containing statistics regarding their voter registration activities. Interrogatory No. 11: Do you contend each HSD office has, since January 1, 2000, distributed a voter notice form to clients with each application for benefits, recertification/renewal, and change of address, and if so, identify all facts that support your contention. If you do not so contend, identify each HSD office that failed to distribute voter notice forms in this manner, the time period during which PLAINTIFFS FIRST SET OF INTERROGATORIES Page 5 of 10

6 Case 1:09-cv JCH-DJS Document Filed 09/24/10 Page 6 of 10 each office did not so distribute the forms, the actions taken by the Secretary of State to investigate and review the noncompliance, and the actions taken by the Secretary of State to remedy the noncompliance. calculated to lead to the discovery of admissible evidence. Defendant further objects to this interrogatory as containing two discrete subparts and will count them accordingly as separate interrogatories. Subject to and without waiving these objections, Defendant states that she does not have sufficient information to contend that each HSD office has or has not taken the actions described by this interrogatory. Interrogatory No. 12: Do you contend that each HSD office has, since January 1, 2000, distributed a voter registration application to clients with each application for benefits, recertification/renewal, and change of address, provided assistance in completing the application, accepted the completed voter registration application, and transmitted the completed application to the appropriate election official, and if so, identify all facts that support your contention. If you do not so contend, identify each HSD office that has failed to take these actions, the time period during which each office did not so take these actions, the actions taken by the Secretary of State to investigate and review the noncompliance, and the actions taken by the Secretary of State to remedy the concompliance. calculated to lead to the discovery of admissible evidence. Defendant further objects to this interrogatory as containing two discrete subparts and will count them accordingly as separate interrogatories. Subject to and without waiving these objections, Defendant states that she does not have sufficient information to contend that each HSD office has or has not taken the actions described by this interrogatory. Interrogatory No. 13: Do you contend that each MVD and MVD Express office since January 1, 2000 (a) provides simultaneous voter registration with every initial application and renewal application for a state driver s license and identification card; (b) makes completed voter registration forms or updates available to the appropriate election official; and (c) ensures that every change of address form submitted to MVD or MVD Express has served as notification of change of address for voter registration with respect to elections for Federal offices unless the client indicates otherwise? If so, identify all facts that support your contention. If you do not so contend, identify each MVD and MVD Express office that failed to take these actions, the time period during which each office did not take these actions, the actions taken by the Secretary of State of investigate and review the noncompliance, and the actions taken by the Secretary of State to remedy the noncompliance. PLAINTIFFS FIRST SET OF INTERROGATORIES Page 6 of 10

7 Case 1:09-cv JCH-DJS Document Filed 09/24/10 Page 7 of 10 calculated to lead to the discovery of admissible evidence. Defendant further objects to this interrogatory as containing four discrete subparts and will count them accordingly as separate interrogatories. Subject to and without waiving these objections, Defendant states that she does not have sufficient information to contend that each MVD and MVD Express office has or has not taken the actions described by this interrogatory. Interrogatory No. 14: Describe the document retention policies, practices or procedures of the Secretary of State since January 1, 1995, applicable to documents relating to the implementation, administration, coordination, oversight and compliance with New Mexico s obligations under the NVRA including but not limited to policy statements, guidelines, training materials, completed voter notice and voter registration application forms, and all documents that track the numbers of clients who apply for benefits or state motor vehicle driver s licenses or state identification cards, recertify/renew, and change their address at HSD, MVD, and MVD Express offices, and whether or not each of those clients was offered a voter registration application and, for HSD clients, a voter notice form. Defendant states that the Secretary of State s document retention policy regarding these documents maintains them for twenty-two months in accordance with 42 U.S.C e. Completed voter registration forms are maintained indefinitely. Interrogatory No. 15: State and list separately the number of completed voter registration application forms received by the Secretary of State that originated from an HSD, ISD, MAD, MVD, and MVD Express office or from a client or customer of the HSD, MVD, or MVD Express from January 1, 1995 through December 31, 2004 (listed by year and by program or service), and from January 1, 2005 to the present (listed by HSD, MVD, and MVD Express office by month and by program or service). calculated to lead to the discovery of admissible evidence. Defendant further objects to this interrogatory to the extent it would require the creation of a document or data compilation that does not already exist. Subject to and without waiving these objections, Defendant states that she does not have sufficient information to respond to this interrogatory. Interrogatory No. 16: Describe the manner in which the Secretary of State s Office has provided training and/or instructional materials to HSD, ISD, MAD, MVD, and MVD Express personnel since January 1, PLAINTIFFS FIRST SET OF INTERROGATORIES Page 7 of 10

8 Case 1:09-cv JCH-DJS Document Filed 09/24/10 Page 8 of regarding their duties and responsibilities under the NVRA, including but not limited to, compliance with the NVRA s voter notice and voter registration requirements, and identify each person who conducted the training or provided the training and/or instructional materials since January 1, 2000, the group of persons who received the training or the instructional materials, the dates on which and the location at which such training or transmittal of materials occurred, and all materials discussed, displayed, or distributed at the training or in the transmittal. objection, Defendant states that she participates in training sessions provided by those agencies at a location chosen by the agencies. The training materials are provided to the agencies both in person and through the mail. Defendant provided MVD materials to Jerome Vialpando and HSD materials to Carol Baca. Interrogatory No. 17: If you contend that one or more types of transactions between HSD, ISD, MAD, MVD, and MVD Express and its clients is exempt from the requirements for the NVRA, identify with particularity: a. Each such type of transaction you contend is exempt from the NVRA; and b. All facts upon which you rely to support such contentions. Defendant makes no contentions regarding whether any HSD, ISD, MAD, MVD, and MVD Express transactions with their clients are or are not exempt from the NVRA. Should Defendant, after serving these Objections and Answers, makes such a contention, Defendant will supplement her Objections and Answers to Plaintiffs First Set of Interrogatories. Interrogatory No. 20: 1 Identify any complaints received by the Secretary of State since January 1, 2000 concerning voter registration services under the NVRA, and for each complaint, describe the investigation undertaken and its results. objection, Defendant states that the only complaints she has received regarding NVRA voter registration services came from Plaintiffs. 1 Plaintiffs First Set of Interrogatories to Defendant Mary Herrera does not contain interrogatories numbered 18 or 19. PLAINTIFFS FIRST SET OF INTERROGATORIES Page 8 of 10

9 Case 1:09-cv JCH-DJS Document Filed 09/24/10 Page 9 of 10 Interrogatory No. 21: Identify separately and describe all actions taken by the Secretary of State to investigate the statements in the letter dated June 12, 2007 from Brian Mellor and Brenda Wright that HSD is not in compliance with the NVRA and also those statements in the letter dated March 23, 2009 from Yolanda Sheffield, et al. that HSD, MVD, and MVD Express are not in compliance with the NVRA, including but not limited to all documents reviewed and persons interviewed. Defendant objects to this interrogatory to the extent it seeks information protected by any applicable evidentiary privilege, including the attorney-client and executive privileges. Subject to and without waiving this objection, Defendant states that the Secretary of State s Office contacted the Secretary of Taxation and Revenue regarding NVRA compliance issues to help evaluate whether MVD was in compliance and, if not, what needed to be done to ensure compliance. Defendant also corresponded with the authors of the letters identified in this interrogatory in an effort to cure any defects with NVRA compliance in New Mexico. Interrogatory No. 22: Describe the results of each action taken by the Secretary of State to investigate the statements in Mr. Mellor s and Ms. Wright s June 12, 2007 letter and Ms. Sheffield s March 23, 2009 letter. Defendant objects to this interrogatory to the extent it seeks information protected by any applicable evidentiary privilege, including the attorney-client and executive privileges. Subject to and without waiving this objection, Defendant states that her investigation revealed NVRA compliance issues at MVD. Interrogatory No. 23: Identify by title all databases (for purposes of these interrogatories, the term database encompasses databases, reports, programs, and files) containing information accessible by computer, which databases the Secretary of State maintains or has maintained, or to which the Secretary of State has access, which contain any of the following categories of information for persons ( clients ) who have applied for public assistance at or through an HSD office, or for persons who have applied for a state driver s license or state identification card at or through an MVD or MVD Express office since January 1, 1995: (a) (b) (c) (d) (e) (f) (g) the name of the client; the HSD, MVD, or MVD Express office that processed each client; the benefit program or service sought by the client; the date of each application; the date of each recertification; the date of each renewal the date of each change of address; PLAINTIFFS FIRST SET OF INTERROGATORIES Page 9 of 10

10 Case 1:09-cv JCH-DJS Document Filed 09/24/10 Page 10 of 10 (h) (i) (j) (k) (l) (m) (n) (o) whether, for HSD clients, a voter notice form was provided at the time of each application, recertification, renewal, and change of address; a breakdown of each voter notice response (yes, no, no response); whether the client received a voter registration application; whether the client received assistance in filling out an application; whether a completed voter registration application or change of address was transmitted to the appropriate election official; the number of voter notice forms ordered and received by each HSD office; the number of voter registration applications ordered and received by each HSD or MVD or MVD Express office; and the receipt of a completed voter registration application or change of address by the appropriate election official. objection, Defendant states that the Power Profile database, a portion of the Voter Registration Election Management System, contains some of the information identified in this interrogatory. DATED: December 2, 2009 Respectfully submitted, GARY K. KING NEW MEXICO ATTORNEY GENERAL /s/ Scott Fuqua Scott Fuqua Assistant Attorney General New Mexico Attorney General s Office 408 Galisteo Street Santa Fe, NM (505) Telephone (505) Facsimile Attorney for Defendant Mary Herrera CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the foregoing on Plaintiffs counsel of record via on December 2, /s/ Scott Fuqua Scott Fuqua PLAINTIFFS FIRST SET OF INTERROGATORIES Page 10 of 10