Case 3:12-cv Document 41 Filed in TXSD on 05/24/12 Page 1 of 6

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1 Case 3:12-cv Document 41 Filed in TXSD on 05/24/12 Page 1 of 6 THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION VOTING FOR AMERICA, INC. * BRAD RICHEY AND * PENELOPE MCFADDEN * * Plaintiffs * * Vs. * No. 12-CV * HOPE ANDRADE AND * CHERYL E. JOHNSON * * Defendants * CHERYL JOHNSON S RESPONSE TO THE PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION TO THE HONORABLE JUDGE GREGG COSTA: Comes now Cheryl Johnson, the Tax Assessor-Collector of Galveston County, a defendant herein and responds to the Plaintiffs Motion for Preliminary Injunction as follows. 1) Johnson is entitled to dismissal from this case pursuant to Fed.R.Civ.P. Rule 12(b)(1)&(6). Johnson has previously moved for dismissal pursuant to Fed.R.Civ.P. Rules 12(b)(1)&(6). (Doc. 9, 10 & 22). Without reiterating those motions in toto, Johnson incorporates them herein by reference and requests the Court consider them at its earliest convenience and grant them. Without waiving its Rule 12 motions to dismiss and relying strictly thereon, Johnson responds further as follows. 2) Joinder in response filed by the Secretary of State. The Texas Secretary of State Hope Andrade has filed her response to the plaintiff s Request for Temporary Injunction; defendant Cheryl Johnson adopts and joins in that response, 1

2 Case 3:12-cv Document 41 Filed in TXSD on 05/24/12 Page 2 of 6 which clearly and effectively explains why a preliminary injunction should not issue against either of the defendants based on the substance of the law. However, were the Court not inclined to deny a preliminary injunction as to both defendants, the motion for preliminary injunction should be denied as to Johnson.. 3) Johnson is not a proper party to enjoin in this case; since she is required to follow the laws of the State and the directives of the Secretary of State in the conduct of voter registration; the Secretary of State is the sole defendant to properly enjoin and any order of this Court directing any action by the Secretary of State would be binding on all 254 voter registrars in this State The United States Congress enacted the National Voter Registration Act in The purposes of the NVRA are: (1) to establish procedures that would increase the number of eligible citizens who register to vote in elections for federal office; (2) to make it possible for federal, state, and local governments to implement the Act in a manner that would enhance the participation of eligible citizens as voters in elections for federal office; (3) to protect the integrity of the electoral process; and (4) to ensure that accurate and current voter registration rolls are maintained. 42 U.S.C. 1973gg(b). Ferrand v. Schedler, Slip Copy, 2012 WL *6 E.D.La.,2012. Under the NVRA, each State is required to name a chief election official for the State responsible for implementing the provisions of the NVRA. 42 USC 42 USC 1973gg-8. In Texas, the Secretary of State has been designated the chief election official. Texas Election Code The Texas Secretary of State is designated chief election officer for the purpose of obtaining uniformity in the operation of the election laws. He is to assist and advise all election officers of the state. It is surely his office to communicate and explain the law to the end that all of the provisions of this Election Code will be followed throughout the state at every election and 2

3 Case 3:12-cv Document 41 Filed in TXSD on 05/24/12 Page 3 of 6 in every polling place Bullock v. Calvert, 480 S.W.2d 367, 371(Tex 1972). The Secretary is given the responsibility for the design and content of all forms necessary to effect the provision of the election code. Tex.Elec. Code To that end, the Texas Secretary of State has promulgated Texas Voter Registration Application form VR E.13 (Attached) to be used to register voters in Texas. The mechanical duties of registering people falls to the County Tax Assessor-Collector under Tx. Election Code The county tax assessor-collector is the voter registrar for the county unless the position of county elections administrator is created or the county clerk is designated as the voter registrar. But although the County voter registrar is given the physical tasks of registering voters in their own county, the Secretary of State regulates the process. As noted above, the Secretary of State has promulgated the form to be utilized. The Secretary of State issues instruction for the voting registrar to follow, such as election advisory establishing the training standards for training volunteer deputy registrars, and mandating delivery of certain material to them. (Attached) The Secretary of State mandates that if a voter fails to provide proof of citizenship within the required 30 days, that the voter registrar shall promptly send the voter a notice of cancellation that includes the date of and the reason for cancellation. 1 TAC 81.8(b). Where the registrar fails to adhere to the forms and processes promulgated by the Secretary of State, both the Secretary and Attorney General can compel compliance. U.S. v. State of Tex. 445 F.Supp. 1245, 1259 (S.D.Tex. 1978), aff d 99 S.Ct. 1006, 439 US 1105, 59 L.Ed.2d 66, reh g den d 99 S.Ct. 1433, 440 US 951, 59 L.Ed.2d 641. The most immediate and practical tool to ensure compliance with the Secretary of State s regulations is the availability of funds under Texas Election Code Ch. 19 to partially fund expenses; those expenses include expenses incurred 3

4 Case 3:12-cv Document 41 Filed in TXSD on 05/24/12 Page 4 of 6 by the Voter registrar in implementing and conduction the duties required by the NVRA, 1 TAC 81.28; on the other hand failure to adhere to the Secretary of State s rules may result in a denial of reimbursement from Chapter 19 funds. 1 TAC Because of the obligation of the county registrar to comply with the directives of the Secretary of State, were the Court to issue any type of injunctive relief it would not be necessary to extend that injunction to the registrar of Galveston County. See. McKay v. Altobello, 1997 WL (E.D.La. 1997) (Injunctive relief issued against La. Commissioner of Elections but unnecessary against local registrar merely acting in accordance with state law and regulations). An analagous situation occurred in the State of Alabama related to the obligations of the Alabama Secretary of State under the Uniformed and Overseas Citizens Absentee Voting Act of 1986 UOCAVA in the case United State of America v. State of Alabama, F.Supp. 2d, 2012 WL (M.D. Ala. 2012). Alabama is similar to Texas insofar as voter registration is conducted at the County level by a Board of Registrars. Alabama Code specifies that [t]he Secretary of State may promulgate rules for the receipt of applications for registration and the expedient administration of those applications, but no person shall be registered until a majority of the board of registrars has passed favorably upon the person's qualifications. Under Alabama Code (a): Registration shall be conducted in each county by a board of three reputable and suitable persons to be appointed, unless otherwise provided by law, by the Governor, Auditor, and Commissioner of Agriculture and Industries, or by a majority of them acting as a state board of appointment. The registrars shall be qualified electors, residents of the county, shall have a high school diploma or equivalent, and possess the minimum computer and map reading skills necessary to function in the office Although in Texas the County registrar is an elected person, and in Alabama a board of three is appointed by a state board of appointment, the common link between both states is that voter registration is conducted at the local County Level. 4

5 Case 3:12-cv Document 41 Filed in TXSD on 05/24/12 Page 5 of 6 The imposition of responsibilities on the States under the UOCAVA, 42 USCA 1973ff- 1 and the NVRA, 42 USC 42 USC 1973gg-8 is accomplished by strikingly similar language. Under the NVRA, 42 USC 1973gg-8 Each State shall designate a State officer or employee as the chief State election official to be responsible for coordination of State responsibilities under this subchapter. Under the UOCAVA, 42 USC 1973ff-1(b)(1) Each State shall designate a single office which shall be responsible for providing information regarding voter registration procedures and absentee ballot procedures to be used by absent uniformed services voters and overseas voters. In United State of America v. State of Alabama, charged with a failure to ensure that overseas ballot were mail in a timely manner in accordance with the UOCAVA, the Alabama Secretary of State asserted that was the responsibility of the county boards. The Court rejected that argument, stating Alabama's contention that it is not its responsibility to ensure compliance with UOCAVA, especially where local county officials transmit ballots and administer an election, is meritless. Subject to an exception not applicable here, the statutory language is explicit: Each State shall... transmit a validly requested absentee ballot to an absent uniformed services voter or overseas voter... not later than 45 days before the election Id at *1. And is in the United State of America v. State of Alabama, id, where the Alabama Secretary of State was found to be the proper official to enjoin, so should this court find the Texas Secretary of State is the sole person to enjoin in this case. And if that were not the case, and were it necessary to enjoin Johnson as the Galveston County Voting registrar in addition to the Secretary of State, defendant Johnson would suggest that that the remaining 253 voting registrars in this State should have to be joined. 5

6 Case 3:12-cv Document 41 Filed in TXSD on 05/24/12 Page 6 of 6 Conclusion In conclusion, defendant Cheryl Johnson prays the motions to dismiss she has filed pursuant to Fed.R.Civ.P.Rule 12(b)(1)&(6) be granted and that she go hence with her costs; that in the alternative, for the reasons recited by the Texas Secretary of State that the request for preliminary injunction against both defendants be denied; and again in the alternative, that the request for injunctive relief against Johnson be denied. Respectfully submitted, /s Donald S. Glywasky /s Donald S. Glywasky SBN Fed. ID No County Legal Department County Courthouse 5 th Floor 722 Moody Galveston, Texas (409) (409) (fax) Attorney in charge for Cheryl Johnson County Tax Assessor Collector and Voter Registrar Certificate of Service I certify opposing counsel are known user of the Court s electronic filing system and a copy of this document will be made upon him through that system on the day of filing. /s Donald S. Glywasky /s 6

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