Case 3:15-cv HEH-RCY Document 172 Filed 02/18/16 Page 1 of 88 PageID# 2632

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1 Case 3:15-cv HEH-RCY Document 172 Filed 02/18/16 Page 1 of 88 PageID# 2632 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION BARBARA LEE, et al., Plaintiff, v. No. 3:15CV357 HEH VIRGINIA STATE BOARD OF ELECTIONS, et al., Defendants. DEFENDANTS FINDINGS OF FACTS AND CONCLUSIONS OF LAW ARENT FOX, LLP Mark F. (Thor) Hearne, II (admitted pro hac vice) 112 S. Hanley Road, Suite 200 Clayton, MO Tel: Facsimile: thornet@ix.netcom.com Dana J. Finberg (VSB # 34977) 55 Second Street, 21st Floor San Francisco, CA Telephone: Facsimile: danafinberg@arentfox.com Attorneys for Defendants

2 Case 3:15-cv HEH-RCY Document 172 Filed 02/18/16 Page 2 of 88 PageID# 2633 TABLE OF CONTENTS Page INTRODUCTION...1 PROCEEDURAL HISTORY...2 FINDINGS OF FACT...6 I. The Democrat Party lacks standing...6 II. III. IV. Virginia elections are governed by race-neutral laws and regulations and conducted by bi-partisan boards and election officials....6 A. Virginia adopted race-neutral laws to govern its elections...6 B. Virginia elections are conducted by bi-partisan election boards and bi-partisan teams of election officials...11 C. The Board and Department diligently implemented Virginia s election law to assure that every Virginia voter has opportunity to vote and to obtain a free photo identification card D. The Board and Department maximized resources to educate voters about the election law at issue E. Almost every eligible Virginia voter possesses at least one form of identification document necessary to vote and those few Virginians that lack photo identification can easily obtain one for free...21 Virginia reformed its election laws, including voter identification requirements, to provide for the fair, honest and just administration of elections...24 A. The Help America Vote Act...24 B. The Carter-Baker Commission on Federal Election Reform...25 C. Following the recommendations of Carter-Baker a number of states adopted election reforms including requirements that a voter provide photo identification before a ballot is counted D. Virginia reformed its election law to require a person to provide identification documents before casting a ballot that will be counted E. Virginia reformed its election laws in response to broad public support for a requirement that voters provide photo identification and to address concerns about vote fraud...30 F. Plaintiff s contention that Virginia adopted its voter identification requirements for an invidious discriminatory purpose is without merit...35 Virginia s 2013 voter identification law is not the result of invidious discrimination by long-gone generations i

3 Case 3:15-cv HEH-RCY Document 172 Filed 02/18/16 Page 3 of 88 PageID# 2634 TABLE OF CONTENTS Page V. Documented instances of vote fraud validate Virginia s interest in implementing reasonable non-discriminatory preventative measures...38 A. Voter registration fraud occurs...39 B. Ineligible persons on voter rolls include those not citizens...39 C. Vote fraud occurs at the polling place...42 D. Photo identification requirements enjoy broad bi-partisan support E. Photo identification requirements are broadly supported by voters themselves CONCLUSIONS OF LAW...50 I. The three plaintiffs do not have standing to challenge Virginia s voter identification requirements...50 II. III. Virginia s rule requiring a person to reliably identify himself before casting a ballot does not violate the First or Fourteenth Amendment...53 A. Virginia s voter identification requirement satisfies the Supreme Court s Burdick standard of review...55 B. Virginia has a compelling interest in preserving the integrity of its election process and Virginia s General Assembly had many legitimate reasons to require a person to provide photo identification before casting a ballot C. Virginia s voter identification requirements are not the result of past discrimination...68 Virginia s voter ID law does not violate Section 2 of the Voting Rights Act A. Plaintiffs premise their Section 2 challenge on a theory contrary to the text and intent of Section B. Plaintiffs fail to show that Virginia s voter ID law is a proximate cause of minorities having less opportunity to participate C. Plaintiffs Section 2 theory violates the Constitution...79 CONCLUSION...83 ii

4 Case 3:15-cv HEH-RCY Document 172 Filed 02/18/16 Page 4 of 88 PageID# 2635 INTRODUCTION In anticipation of the 2016 general election the Democrat party and allied interest groups are challenging the rules under which the 2016 election will be conducted. Voter identification requirements, early voting, same-day voter registration, and felon re-enfranchisement (among other issues) are the subject of ongoing federal litigation in a number of states including Ohio, North Carolina, Texas and Wisconsin. 1 The litigants in these other cases, as do the plaintiffs here, ask federal judges to invalidate provisions of state law governing the conduct of upcoming elections. In all these cases, as here, the litigants claim the challenged provisions of state election law impermissibly burden the ability of certain Democrat voting blocs (minorities, felons and young voters ) to participate in the election. The litigants contend Republicancontrolled legislatures adopted these provisions for the partisan purpose of enhancing the Republican party s electoral prospects. The plaintiffs bringing this lawsuit ask this Court to invalidate Virginia s law requiring a person to provide photo identification documenting the person to be an eligible voter. We explain in a more fulsome detail below why this challenge to Virginia s voter identification law fails. However, the short answer is this: the Plaintiffs challenge fails because 1 See, Ohio State Conference of NAACP v. Husted, 43 F.Supp.3d 808 (S.D. Ohio, 2014), aff d, 768 F.3d 524 (6th Cir. 2014), stay granted, 135 S. Ct. 42 (2014). Husted challenged Ohio legislation that prevented individuals from registering and voting in the week before Election Day. NAACP v. McCrory, 997 F. Supp. 2d. 322 (M.D. N.C. 2014) (McCrory I) McCrory challenged North Carolina s voter identification requirements and requirement that voters cast ballots in their designated precinct and allowed early voting during only a limited period before Election Day. Frank v. Walker, 17 F. Supp. 3d 837 (E.D. Wis. 2014) and 768 F.3d 744 (7th Cir. 2014). In Frank Judge Easterbrook of the Seventh Circuit held Wisconsin s voter identification law (which is more stringent than Virginia s law) did not violate the Equal Protection Clause nor did it violate Section 2 of the Voting Rights Act. Veasey v. Perry, 2014 WL (S.D. Tex. 2014), and 769 F.3d 890 (5th Cir 2014). Veasey is a challenge to Texas s voter identification law. Unlike Virginia, Texas requires voters to provide only a very limited number of identification documents. The district court enjoined the law but the Fifth Circuit stayed the injunction. 1

5 Case 3:15-cv HEH-RCY Document 172 Filed 02/18/16 Page 5 of 88 PageID# 2636 Virginia s voter ID law is more lenient than Indiana s voter ID law and the Supreme Court upheld Indiana s law in Crawford v. Marion County Elec. Bd., 553 U.S. 181 (2008). Similarly, Virginia s voter ID law is more lenient than Wisconsin s voter ID requirements are and the Seventh Circuit upheld Wisconsin s voter ID law in Frank v. Walker, 768 F.3d. 744 (7th Cir. 2014). Similarly, in NAACP v. McCory, 2016 WL (M.D.N.C. 2016) (McCrory II), a federal district court in North Carolina refused to enjoin North Carolina s voter ID law. Plaintiffs present no facts nor any authority that allow this Court to ignore the reasoning and holding of Crawford, Frank and McCrory II and invalidate Virginia s voter ID law while stricter and more burdensome voter ID laws were upheld by these other courts. As we show below, the three plaintiffs lack standing and, to the extent we consider their Equal Protection Clause and Section 2 Voting Rights Act challenge, those challenges fail. PROCEEDURAL HISTORY Two individual political operatives (Lee and Aida) and the Democrat Party of Virginia (DPV or Democrat Party) filed this lawsuit. These three plaintiffs ask this Court to invalidate provisions of Virginia election law requiring, inter alia, that a person identify himself before his ballot will be counted. Plaintiffs also complained of long lines at polling places and asked this Court to order convicted felons automatically re-enfranchised upon completion of their criminal sentence. Plaintiffs have since dismissed the long lines and felon claims with prejudice. Thus, as currently composed, this lawsuit challenges only those provisions of Virginia s law requiring a person to provide identification before a ballot is counted. 2 2 The distinction between casting and counting a ballot is important. Virginia allows a person register to vote and cast a ballot without ever providing any form of identification. But a person lacking identification is given a provisional ballot that will only be counted if the person casting the ballot later provides acceptable identification. 2

6 Case 3:15-cv HEH-RCY Document 172 Filed 02/18/16 Page 6 of 88 PageID# 2637 Plaintiffs sued the Virginia State Board of Elections (the Board or BOE), the Virginia Department of Elections (the Department), the members of the Board and the Commissioner of the Department in their official capacity. Plaintiffs claim Virginia s election law: (1) violates Section 2 of the Voting Rights Act 3, (2) violates the First Amendment and Equal Protection Clause of the Fourteenth Amendment due to disparate treatment of individuals without a rational basis, (3) is unconstitutional partisan fencing, (4) is intentional discrimination by the Virginia General Assembly abridg[ing] and deny[ing] the right to vote for African Americans and Latinos on account of race; and (5) constitutes intentional discrimination on the basis of age that abridge[s] and den[ies] the right to vote for young voters on the account of age violating the Twenty-sixth Amendment. 4 Counts Four and Five allege the General Assembly intended, at least in part, to suppress the number of votes cast by African Americans and Latinos and the General Assembly intended to suppress the number of votes cast by young voters. 5 The Board and Department asked this Court to dismiss Plaintiffs amended complaint under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). 6 We said dismissal was proper because Lee, Aida and the DPV lacked standing and failed to state a claim upon which relief can be granted. Lee and Aida possess the requisite identification documents necessary to vote and the Democrat Party did not identify any member of the Party (or, for that matter, any person) 3 Voting Rights Act of 1965, 4(a), 79 Stat The Voting Rights Act was previously codified as 42 U. S. C et. seq., but has been re-codified as 52 U.SC , et. seq. 4 Amended Compl., Dkt. No. 36, pp Amended Compl., Dkt. No. 36, p. 36, para. 119 and p. 37, para Motion to Dismiss, Dkt. No

7 Case 3:15-cv HEH-RCY Document 172 Filed 02/18/16 Page 7 of 88 PageID# 2638 who is an eligible Virginia voter who had been (or would be) denied the right to vote by reason of the challenged provisions of Virginia law. After we filed our motion to dismiss, Plaintiffs voluntarily dismissed with prejudice their claims about felon re-enfranchisement and long lines. 7 Our motion to dismiss was briefed and argued and this Court granted-in-part and denied-in-part our motion. This Court held Counts One and Two survive 12(b)(6) scrutiny as to the challenge to Virginia s voter identification law but this Court dismissed the long lines claim and dismissed Counts Four and Five entirely. 8 This Court further held that Count Three, alleging partisan fencing, was a restatement of Count Two. 9 Plaintiffs sought reconsideration under Rule 59(e). 10 This Court agreed to reconsider its decision dismissing Counts Four and Five noting, Plaintiffs offer authority bearing directly on the critical traceability element of standing in the election law context which could arguably convince the court that its initial impression was in error. 11 This Court ordered further briefing and consideration of the standing issue on Counts IV and V. 12 And, after reconsidering its decision to dismiss Counts Four and Five, this Court found the Plaintiffs allegation of 7 Dkt. No. 97 and Dkt. No Plaintiffs dismissed their long lines claim pursuant to terms of a consent decree. Dkt. No Memorandum Opinion, Dkt. No. 110; Order, Dkt. No Id. at 20 (Count Three is Count Two in a slightly different wrapper and it will be treated accordingly. *** The term partisan fencing does not create an independent cause of action aside from a typical First Amendment and Equal Protection Clause claim. ). 10 Dkt. No. 124, p. 1. Plaintiffs asked this Court to reconsider its dismissal of Counts IV and V [and to] reinstate those claims. 11 Order, Dkt. No Id. This Court s order directed Defendants to file their brief on Monday, January 25. But, in light of the major winter storm that struck the East Coast on January 23 and 24, we asked the Court to extend the deadline one-day until Tuesday, January 26. Dkt. No

8 Case 3:15-cv HEH-RCY Document 172 Filed 02/18/16 Page 8 of 88 PageID# 2639 intentional discrimination by the General Assembly is traceable to the named Defendants [the Board and the Department] by virtue of their statutory obligation to enforce the voter ID law. 13 This Court concluded, though the factual allegations underpinning Counts IV and V are very thin, taken in the light most favorable to the Plaintiffs, they are enough to create a facially plausible claim. Accordingly, Counts IV and V survive review under Rules 12(b)(1) and (b)(6). 14 The Court ordered Counts Four and Five reinstated. After discovery the Board and the Department asked this Court to enter partial summary judgment under Rule Summary judgment is proper because the Democrat Party lacked associational standing to bring an Equal Protection Clause challenge or a Section 2 Voting Rights Act challenge on behalf of any individual because the Democrat Party had not identified any individual member aggrieved by the challenged provisions of Virginia law. The two individuals, Lee and Aida, similarly lacked standing to assert an Equal Protection Clause or Section 2 Voting Rights Act challenge for some hypothetical person who is not a party. And the challenged provisions of Virginia law do not burden Lee s or Aida s ability to vote because Lee and Aida possess the identification documents and have in fact voted and their ballots have been counted. This Court ruled the Board s and the Department s motion for partial summary judgment will be reserved for argument post-trial as part of argument on the merits. 16 Trial is scheduled to commence February 22, and this Court directed the parties to provide pre-trial statements of fact and conclusions of law by February Memorandum Order, Dkt. No. 136, p Memorandum Order, Dkt. No. 136, p Dkt. No Order, Dkt. No

9 Case 3:15-cv HEH-RCY Document 172 Filed 02/18/16 Page 9 of 88 PageID# 2640 FINDINGS OF FACT I. The Democrat Party lacks standing. Defendants incorporate by reference their Statement of Undisputed Facts regarding the Democrat Party s lack of associational standing in Defendant s motion for partial summary judgment, filed February 5, In the interest of brevity, those undisputed facts will not be set repeated here (but Defendants reserve the right to expand on those facts in any post-trial briefing requested by the Court). II. Virginia elections are governed by race-neutral laws and regulations and conducted by bi-partisan boards and election officials. A. Virginia adopted race-neutral laws to govern its elections. 1. To vote in Virginia a person must be: (i) 18 years of age, (ii) a resident of the Commonwealth and of the precinct in which he offers to vote; and, (iii) a registered voter. 17 Any person who is not registered to vote, but would otherwise be a qualified voter, is entitled to register to vote. 18 Virginia requires no identification of any type to register to vote and a person may register to vote in-person, by mail or over the internet While Virginia requires no identification or proof of eligibility to register to vote, Virginia does require a voter to provide one of several forms of valid identification before a ballot cast at a polling place is counted. Acceptable identification includes, inter alia, a Virginia driver s license, passport, any other 17 Va. Code (definition of Qualified Voter ). Virginia excludes a person convicted of a felony from being a qualified voter unless the Governor has restored their right to vote. Those adjudicated to be mentally incapacitated are also excluded from being a qualified voter. 18 Va. Code See generally, Va. Code. Chapter through

10 Case 3:15-cv HEH-RCY Document 172 Filed 02/18/16 Page 10 of 88 PageID# 2641 photo identification issued by the Commonwealth, one of its political subdivisions or the United States. Student identification provided by any public or private institution of higher education located in the Commonwealth or any photo identification issued by the person s employer is acceptable A valid form of identification is a document (i) that appears to be genuinely issued by the agency or issuing entity appearing upon the document, (ii) the bearer of the document reasonably appears to be the person whose photograph is contained thereon, and (iii) the document shall be current or have expired within the preceding 12 months Any person lacking one of the specified forms of identification may obtain a photo identification card without cost from the general registrar s office or from the Department. There are 133 general registrars throughout Virginia who will provide a free photo identification card. To obtain a free photo identification card the person need only sign an application affirming their identity Unlike other states with photo identification requirements, a Virginia voter does not need to provide any underlying documents (such as a birth certificate) to establish identity and obtain a free photo identification card. 20 Va. Code B. A provisional ballot is identical to a normal ballot in all respects. A provisional ballot is placed in a separate envelope and counted once the voter s identity is confirmed. 21 See VAC ; see also 2013 Va. Laws Ch. 725 (SB 1256). 7

11 Case 3:15-cv HEH-RCY Document 172 Filed 02/18/16 Page 11 of 88 PageID# A person presenting themselves at a polling place to cast a ballot who lacks any of the specified identification documents will be given a provisional ballot. 23 [A]n officer of election, by written notice given to the voter, shall inform a voter voting provisionally that he may submit copy of one of the forms of identification specified to the electoral board by facsimile, electronic mail, inperson submission, or timely United States Postal Service or commercial mail delivery, to be received by the electoral board no later than noon on the third day after the election Virginia goes even further to make sure very eligible voter has opportunity to cast a ballot that will be counted. Virginia allows voters to cast ballots without needing to go to a poll on Election Day. 25 Any registered Virginia absent from their county on Election Day, students and the spouses of students, members of the military, any person whose disability, illness or pregnancy prevents him (or her) from going to the polls and any person confined to jail awaiting trial or sentenced to jail due to a misdemeanor may vote absentee Virginia provides for emergency absentee ballots to any person registered and otherwise qualified to vote who becomes incapacitated within seven days of the election or who becomes hospitalized [within fourteen days before the 23 Va. Code B. 24 Id A. 25 Id through Id (1) - (5). 8

12 Case 3:15-cv HEH-RCY Document 172 Filed 02/18/16 Page 12 of 88 PageID# 2643 election]. 27 A Virginian in such circumstances may request an emergency absentee ballot be delivered to him in the hospital. Virginia statute defines Incapacitated [to] mean hospitalized, ill and confined to his residence, bereaved by the death of a spouse, child, parent or otherwise incapacitated by an emergency If the application for an absentee ballot is completed in-person at the general registrar s office the applicant must provide one of the forms of identification required to vote in-person at a polling place. 29 But an absentee ballot application submitted by mail, internet or fax (including the federal postcard application) does not require the voter to present the photo identification required at the polling place The federal Help America Vote Act of 2002, 52 U.S.C (HAVA), requires that a voter who registers to vote by mail must present a HAVA designated form of identification before casting a ballot whether in-person or by an absentee ballot. Virginia adopted the HAVA identification requirements for mail-in absentee ballots. A first-time mail-in-registered voter is required to submit with his ballot (i) a copy of a current and valid photo identification or (ii) a copy of a 27 Id Id Id B.1 30 Id B.2. 9

13 Case 3:15-cv HEH-RCY Document 172 Filed 02/18/16 Page 13 of 88 PageID# 2644 current utility bill, bank statement, government check, paycheck or other government document that shows the name and address of the voter Thus, considered in its totality, Virginia law requires a voter to identify themselves using any one of a number of identification documents. Virginia s election statutes and Virginia s system of election administration allow a person to appear at their polling place on Election Day without any form of identification and cast a ballot. The officers of election will provide the person a ballot even if the person lacks any identification. The ballot will be put in a provisional ballot envelope and the ballot will be counted provided the voter sends the registrar a copy of any of the acceptable forms of photo identification on Friday following Election Day. The voter may provide a copy of the requisite identification document by mail, fax, or in-person. 12. If a person has no acceptable form of photo identification, the Board or one of the 133 registrar offices will give the person a free photo identification card and the voter s ballot will be counted. The voter can obtain the free photo identification even after casting a provisional ballot on Election Day. And the voter can obtain the free photo identification without having to provide any underlying documents such as a birth certificate. All that is required for a person to obtain a free photo identification card is to sign a form attesting to the person s identify and stating their address and social security number. 31 Id

14 Case 3:15-cv HEH-RCY Document 172 Filed 02/18/16 Page 14 of 88 PageID# If any voter is disabled, incapacitated, incarcerated (for a non-felony offense), a student, or simply out of town for business or vacation, he may still vote by casting an absentee ballot. To cast an absentee ballot, a person need only request an absentee ballot (by mail, in-person or over the Internet) and return the ballot. If the voter is newly-registered and has not previously voted they need to include a copy of their HAVA, non-photo, identification with the absentee ballot. But if the voter has previously voted in-person or has provided the HAVA specified identification to the registrar, the voter does not need to include any identification with their absentee ballot. B. Virginia elections are conducted by bi-partisan election boards and bipartisan teams of election officials. 14. Virginia law provides that its elections are conducted by four different entities: The State Board of Elections (Board), the Department of Elections (Department), Local Election Boards (Electoral Boards) and Registrars (Registrars). Each local electoral board appoints individual Officers of Election to conduct the election in each precinct. While the Board, through the Department, provides local electoral boards guidance about how to conduct elections, it is the electoral boards that actually conduct the election and, as it relates to photo identification, it is the officers of election acting under direction and supervision of the local electoral board that enforce Virginia s voter identification law. 11

15 Case 3:15-cv HEH-RCY Document 172 Filed 02/18/16 Page 15 of 88 PageID# The State Board of Elections The State Board of Elections is a three-member body appointed by the Governor and confirmed by the General Assembly. Two members are from the Governor s political party and one member is from the opposing political party. 16. The current Board members are James B. Alcorn, Chairman and Singleton B. McAllister, Secretary, both Democrats and Clara Belle Wheeler, Vice Chairman, who is Republican. The Board, through the Department of Elections shall supervise and coordinate the work of the county and city election boards and the registrars to obtain uniformity in their practices and proceedings and legality and purity in all elections. 17. The Board shall make rules and regulations and issue instructions and provide information consistent with the election laws to the electoral boards and registrar to promote the proper administration of election laws. Finally, the State Board shall prescribe appropriate forms and records for the registration of voters, conduct of elections, and implementation of this title, which shall be used throughout the Commonwealth. 2. The Department of Elections Virginia s Governor appoints a Commissioner of Elections who shall employ the personnel required to carry out the duties imposed by the State Board of Elections. And, [t]he State Board, through the Department of Elections, shall 32 The description of the State Board of Elections is taken from Va. Code, Title 24.2, Article 2, through Id. 12

16 Case 3:15-cv HEH-RCY Document 172 Filed 02/18/16 Page 16 of 88 PageID# 2647 ensure that the members of the electoral boards and general registrars are properly trained to carry out their duties by offering training and set[ting] training standards. The current Commissioner of Elections is Edgardo Cortes. 3. The Local Boards of Election There shall be in each county and city an election board composed of three members who shall be appointed by a majority of the circuit judges of the judicial circuit for the county or city. Virginia requires that two electoral board members shall be of the Governor s political party and one member of the other political party. Each electoral board shall appoint the general registrar for its city or county and officer of election for each precinct who shall serve in all election. 20. The electoral board shall perform the duties including preparation of ballots, the administration of absentee ballot provisions, the conduct of the election, and the ascertaining of the results of the election. There are 133 local city and county electoral boards in Virginia. 4. The General Registrar Virginia law provides, each electoral board shall meet and shall appoint a general registrar. Article Four provides, the general registrar, and the assistant registrars acting under his supervision, shall [inter alia] [m]aintain the official registration records for his county or city, The registrars also [v]erify the 34 The Local Boards of Election are defined in Va. Code, Title 24.2, Article 3, through The appointment and duties of a general registrar are found in Va. Code, Title 24.2, Article 4,

17 Case 3:15-cv HEH-RCY Document 172 Filed 02/18/16 Page 17 of 88 PageID# 2648 accuracy of pollbooks provided for each election [m]aintain accurate and current registration records [and] [w]henever any person is believed to be registered or voting in more than one state or territory of the United States at the same time, inquire about, or provide information from the voter s registration and voting records to [the other election authority]. 5. Officers of Election Each local electoral board shall appoint officers of election. At least three officers of election shall be appointed for each precinct and are to be selected equally from both major political parties. The electoral board shall designate one officer as the chief officer of election and one officer as the assistant for each precinct. The officer designated as the assistant for a precinct, whenever practicable, shall not represent the same political party as the chief officer for the precinct. The electoral board shall instruct each chief officer and assistant in his duties and shall conduct training of the officers of election consistent with the standards set by the State Board. The officers of the election under the electoral board s direction are the individuals who actually conduct the election and enforce voter identification requirements. C. The Board and Department diligently implemented Virginia s election law to assure that every Virginia voter has opportunity to vote and to obtain a free photo identification card. 23. General registrars and local boards of election were provided with state resources to provide photo identification to voters each of the 133 general registrars offices 36 The appointment and duties of officers of election are found in Code of Va., Title 24.2, Article 5,

18 Case 3:15-cv HEH-RCY Document 172 Filed 02/18/16 Page 18 of 88 PageID# 2649 throughout the state and at locations outside the general registrars offices in order to accommodate voters who might have transportation issues. Don Palmer, former Secretary of the State Board of Elections, will testify the Board, when designing the voter identification system, assured that the system software and hardware were available on a mobile platform, such as a laptop computer with a portable camera, that registrars can both use in their offices and take to locations outside their offices, such as nursing homes. Justin Riemer will likewise testify that mobile servicing of voters was a priority for the State Board of Elections and that local registrars formed a working group to plan how to provide voter identification via mobile units. See also Virginia Voter Photo ID Training Manual. 37 The Department has used HAVA grant funding, separate and apart from the voter identification budget, to provide local general registrars with the requisite equipment. As Mr. Cortes and other witnesses will testify, acceptable identification for voting is also available from the Virginia Department of Motor Vehicles where voters live. The DMV has mobile DMV 2 Go units that provide drivers licenses, Veterans identification cards, and other photo identification services outside DMV offices. 38 The mobile customer service center is handicapped-accessible, and voters can schedule the mobile unit to come to any location. 37 Available at: 38 Information on the DMV s Mobile Customer Service Center (DMV 2 Go) services is available at: Virginia drivers licenses can be renewed online without visiting a DMV office. 15

19 Case 3:15-cv HEH-RCY Document 172 Filed 02/18/16 Page 19 of 88 PageID# As Edgardo Cortes, current Commissioner of the Department, Don Palmer, former Secretary of the BOE, and Myron McClees, Department policy advisor, will testify, Defendants have provided comprehensive training to general registrars to ensure uniform implementation of the photo identification requirement. The Department thoroughly covered the photo identification requirement at the 2014 and 2015 annual in-person trainings, which require the attendance of all general registrars (or designated staff member) and at least one electoral board member from each locality. The Department will again cover the photo identification requirement at the upcoming June 2016 mandatory training. In addition to the annual mandatory training, Defendants hosted a webinar on the photo identification law implementation in the spring of 2014 and made it available for download. The Department has also provided guidance materials to general registrars, including, but not limited to, the What If guide, the GRE manuals, webinar presentations, updates, and other voter outreach materials. The general registrars train their own staff on the relevant policies and procedures. Defendants also formed a voter identification working group to provide feedback on the development of policy and procedures. This working group includes general registrars and local electoral board members representing urban, suburban, and rural localities that ranged in size. 25. Mr. Cortes and Matt Davis, Chief Information Officer of the Department, will testify about availability and production of free voter photo identification. Within the $166,000 budget apportioned, the Department: (1) developed its own costeffective and user-friendly software program for producing voter identification 16

20 Case 3:15-cv HEH-RCY Document 172 Filed 02/18/16 Page 20 of 88 PageID# 2651 that is compatible with the online voter registration system (VERIS); (2) procured equipment for each local registrar office to take and process the photos and applications and for the Department to print the voter ID cards in-house; (3) conducted online and in-person regional trainings on use of the software and equipment; and (4) as of July 2015, printed and mailed more than 4,300 voter photo identification cards directly to voters. 26. As Mr. Cortes and Mr. Palmer will testify, to obtain a voter photo identification, a voter may go to any local general registrar office to complete an application and have their photo taken. The general registrar then confirms the voter s address in VERIS, makes any necessary changes, takes a photo of the voter, and electronically submits the photo and application to the Department. The Department prints and mails the voter photo identification card to the address in VERIS. 27. Defendants also require local registrar offices to issue temporary identification cards, which serve as an alternative to the free voter identification until the official card can be mailed by the Department to the voter. Local registrar offices must issue a temporary identification to any voter that applies for identification within 30 days of the election. Even if a voter does not obtain an acceptable form of identification before Election Day, the voter may still have their ballot counted. To do so, the voter casts a provisional ballot and applies for and obtains a temporary ID from the local registrar office to satisfy the identification requirement before the noon deadline on the Friday following the election. Or 17

21 Case 3:15-cv HEH-RCY Document 172 Filed 02/18/16 Page 21 of 88 PageID# 2652 alternatively, the voter may obtain a temporary identification on Election Day and then vote casting a regular ballot. D. The Board and Department maximized resources to educate voters about the election law at issue. 28. As Edgardo Cortes, Commissioner of the Department, and others will testify, Defendants developed and implemented a robust campaign to ensure that voters are aware of the photo identification requirement and the availability of free voter photo identification. 29. The legislature appropriated $200,000 annually to voter outreach for fiscal years Cortes will testify that to maximize these resources, the Department engaged the King Agency to develop public marketing branding and media strategy for the campaign. The Department recently signed a new contract with the King Agency to continue to provide services through the 2016 presidential election. 30. Cortes will testify that the King Agency developed marketing materials, including brochures, flyers and posters that educate voters about the photo identification requirement. In total, the Department has provided more 1,000,000 flyers and 6,000 posters to local voter registration offices to use and distribute. These materials are also publically available online as part of the Voter Photo ID toolkit. With the guidance of the King Agency, the Department has run campaigns advertising the photo identification for each election since the law has been in effect. For the 2014 and 2015 elections, the Department ran 15-second and 30- second radio advertisements in areas identified as hot spots for voters without 18

22 Case 3:15-cv HEH-RCY Document 172 Filed 02/18/16 Page 22 of 88 PageID# 2653 DMV-issued identification. The Department has also publicized the requirement and availability of voter identification on social media, including Facebook, Twitter, and YouTube and encouraged partners to link to the same. Aside from paid advertising, the Department actively seeks capitalize on earned media, including press coverage and grassroots social media, to spread the message about the photo identification requirement. This effort has been effective. For example, prior to the 2014 election, the Department s Facebook page was engaged almost 5,000 times, its twitter page had more than 27,000 page impressions, the Voter Photo ID PSA on YouTube received more than 1,400 views, and its Voter Photo ID Information web page received more than 26,000 unique visitors. 31. Cortés will testify that in advance of the upcoming March primary, the Department commissioned the King Agency to conduct a Google consumer survey to enhance its outreach strategy. Using this survey information, the Department and the King Agency devised an advertising campaign that maximizes the reach for each region. In some regions, including Charlottesville/Harrisonburg, the Department is running television and cable advertisements. In Northern Virginia and the surrounding Metro DC area, the Department has opted for bus advertising, including Spanish language advertisements for routes known to have high numbers of Latino passengers. The Department has continued to use newspaper and radio advertising, particularly in regions where long commutes are common. A portion of the newspaper advertisements will be running in publications targeting African American and Latino audiences. 19

23 Case 3:15-cv HEH-RCY Document 172 Filed 02/18/16 Page 23 of 88 PageID# Cortés will testify Defendants have utilized other sources of funds to support further voter outreach efforts. As discussed above, with the aid of HAVA grant funding, the Department has offered localities reimbursement for the purchase of mobile voter identification kits. The Department incorporated information regarding the photo identification law into mandated advertising for a proposed constitutional amendment in newspapers with a total circulation of nearly 1,000, Cortés will testify that in addition to the broad-reaching advertising to all Virginians, the Department sent a targeted mailer to close to approximately 85,000 active voters in Virginia that do not have a DMV-issued photo identification. 34. Cortés will testify that in addition to and independent of these efforts, the 133 general registrars and 399 electoral board members also engaged in their own outreach to publicize the photo identification requirement. For example, the Fairfax City produced its own public service announcement video and made that PSA accessible to registrars and the public-at-large. The General Registrar in the City of Manassas included voter identification information in the monthly utility bill mailing to all local residents. The Department has facilitated communication among the general registrars about these efforts. 35. The Department has partnered with third parties to facilitate grassroots outreach and education on the photo identification requirement and the availability of free voter identification. This includes partnerships with, among others, the NAACP 20

24 Case 3:15-cv HEH-RCY Document 172 Filed 02/18/16 Page 24 of 88 PageID# 2655 Mid-Atlantic Field, the Virginia Board for People with Disabilities, members of the African American clergy community, AARP, Virginia New Majority, the League of Women Voters, the Young Democrats, the Lawyers Committee for Civil Rights, and even the Virginia Democratic Party itself. The Department also worked closely with a number of these groups to create custom materials for distribution. Staff from the Department has provided information about the photo identification law at voter outreach events hosted by these third parties. In the lead up to the 2016 presidential election, the Department continues to seek opportunities to strengthen existing relationships with partners and form new partnerships. 36. Palmer and Riemer will testify that it was an important goal of the State Board of Elections to implement online voter registration because it was recommended by the Carter-Baker Commission and viewed as an effective way to modernize election administration, improve voter list maintenance, and mitigate against long lines at the polls. Because of the Board s efforts, the legislature enacted online voter registration. E. Almost every eligible Virginia voter possesses at least one form of identification document necessary to vote and those few Virginians that lack photo identification can easily obtain one for free. 37. The matching analysis conducted by Plaintiffs own expert, Dr. Jonathan Rodden, shows that nearly all registered voters in Virginia possess an acceptable form of photo identification. Further, the estimates of registered voters lacking either 21

25 Case 3:15-cv HEH-RCY Document 172 Filed 02/18/16 Page 25 of 88 PageID# 2656 DMV, free, student or military identification 39 show only a minor differential among racial and ethnic groups % of non-hispanic whites, 5.4% of African Americans, and 5.6% of Hispanics. Rodden Report p Even then, this minor (estimated) differential should in all likelihood be further narrowed because Dr. Rodden failed to account for a number of acceptable forms of identification, including: (1) government-issued ID cards from federal, Virginia, or local subdivisions (including political subdivisions); (2) tribal enrollment or other tribal identification; (3) U.S. Passport or Passport card; (4) valid employee photo identification card issued by voter s employer in the ordinary course of business (public or private employer); (5) nursing home resident identification, if issued by government facility; and (6) student identification issued by a public or private high school in Virginia. Thornton Report p Plaintiffs could have requested that federal government agencies, including the Department of Veterans Affairs and the Department of State, match the list of registered Virginia voters to their databases. Information from such federal agencies has been considered in other voter photo identification cases, including North Carolina. Thornton Report p. 13. However, plaintiffs chose not to even attempt to obtain such information in this case. 39 As Defendants expert, Dr. Janet Thornton, will testify, Dr. Rodden s estimate of registered voters possessing student and military IDs is low when compared to the total number of students and members of the military in Virginia. 22

26 Case 3:15-cv HEH-RCY Document 172 Filed 02/18/16 Page 26 of 88 PageID# Plaintiffs own expert, Allan Lichtman, acknowledged that African Americans have a higher rate of enrollment in institutes of higher education. Lichtman Depo., v. 1, 158:1-06. As such, the data points missing from Dr. Rodden s analysis undermine his conclusions about the rate of identification possession among registered voters in Virginia. 41. As Dr. Karen Owen notes in her expert report, if Republicans sought to reduce Democratic strength in the state, requiring voters to present photo identification at the polls would not achieve that goal. In 2014, 2,194,346 people voted in Virginia, and fewer than 800 had to cast a provisional ballot because they did not present an acceptable form of identification. That is less than 0.036% of those who went to the polls. In 2015, 1,509,864 people cast ballots in Virginia, and fewer than 450 had to vote provisionally because they did not present an acceptable form of identification. That is less than 0.029% of those who went to the polls. And, the actual number of eligible Virginia voters without an acceptable form of identification is probably smaller since some of those casting provisional ballots probably have photo identification but forgot to bring it with them to the polls. Owen Report, p Dr. Owen also cites the work of respected Harvard government professor, Stephen Ansolabehere. Based on data collected by YouGov/Polimetrix, Dr. Ansolabehere concludes that, [v]oter ID does not appear to present a significant barrier to voting. Although the debate over this issue is often draped in the language of the civil and voting rights movements, voter ID appears to present no real barrier to access. Owen Report, p

27 Case 3:15-cv HEH-RCY Document 172 Filed 02/18/16 Page 27 of 88 PageID# Dr. Owen further cites The Pew Research Center s national survey research that indicates that the overwhelming share of adults believe that they have necessary documentation to vote where photo identification is required. Owen Report, p. 7. III. Virginia reformed its election laws, including voter identification requirements, to provide for the fair, honest and just administration of elections. A. The Help America Vote Act 44. In the aftermath of the 2000 election, Presidents Carter and Ford co-chaired a bipartisan commission (the Commission on Federal Election Reform) that investigated the conduct of federal elections and recommended changes in election administration. 45. Responding to these recommendations, Congress passed the Help America Vote Act of 2002 ( HAVA ) 40 with broad bipartisan support. HAVA was intended to change the system to make it easier to vote and tougher to cheat. 148 Cong. Rec. S10488 (2002) (statement of Sen. Bond). The legislation s one central goal [ ] was to make it easier to vote in America and much harder to corrupt our Federal election system. Id. at S2527 (statement of Sen. Dodd) HAVA demonstrated bi-partisan recognition of the three principles essential to any fair and honest election: (1) a current and accurate voter roll; (2) safeguards to assure that the person casting a ballot is reliably identified as the individual 40 Pub. L. No , 116 Stat (codified in scattered sections of 2, 5, 10, 36, and 42 U.S.C ). 41 President Bush noted the Carter-Ford Commission s recommendations helped inspire this legislation ; our nation is grateful for their work on election reform and for all they have given to America. Remarks by President at Signing of H.R. 3295, The Help America Vote Act of 2002, October 29, 2002, 2002 WL (White House). 24

28 Case 3:15-cv HEH-RCY Document 172 Filed 02/18/16 Page 28 of 88 PageID# 2659 registered; and (3) accurate and unbiased procedures to properly count and report each vote cast. 47. Among other things, HAVA Section 15483(a)(5)(A)(ii) was specifically included to address vote fraud, and provides minimum requirements for identification of voters who register by mail, including presentation of photographic identification. 42 Although HAVA requires photographic identification for persons casting a ballot for the first time following a mail-in registration, Section 15483(a)(5)(A)(ii) also provides non-photo identification alternatives, including a current utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the voter. 48. These identification standards are a floor, not a ceiling. HAVA explicitly provides that the relevant provisions are minimum requirements, and shall not be construed to prevent a State from establishing election technology and administration requirements that are more strict than provided in HAVA, so long as such State requirements are not inconsistent with the Federal requirements. 42 U.S.C (2006). B. The Carter-Baker Commission on Federal Election Reform 49. The Carter-Baker Commission was convened after the 2004 presidential election. This Commission was the successor to the Carter-Ford Commission and included many of the same members. The Carter-Baker Commission s final report 42 See Hearing on H.R Before the H. Comm. on the Judiciary, 107th Cong. (2001), available at 2001 WL (F.D.C.H.) (statement of Rep. F. James Sensenbrenner, Jr.) (identifying vote fraud as a significant motive behind HAVA s anti-fraud provisions); Remarks by President Bush at Signing of H.R. 3295, Help America Vote Act of 2002 (Oct. 29, 2002), 2002 WL (White House), at *2. 25

29 Case 3:15-cv HEH-RCY Document 172 Filed 02/18/16 Page 29 of 88 PageID# 2660 represents a high-water mark in the development of national, bi-partisan, consensus recommendations on post-hava election reform. Among its other recommendations, the Commission wrote that: To ensure that persons presenting themselves at the polling place are the ones on the registration list, the Commission recommends that states require voters to use the REAL ID [43] card, which was mandated in a law signed by the President in May The card includes a person s full legal name, date of birth, a signature (captured as a digital image), a photograph, and the person s Social Security number. This card should be modestly adapted for voting purposes to indicate on the front or back whether the individual is a U.S. citizen. States should provide an EAC-template ID with a photo to non-drivers free of charge Notably, the Carter-Baker Commission s bi-partisan photo identification recommendation is more stringent than Virginia s, requiring validation of provisional ballots within 48 hours of an election, as opposed to Virginia s threeday validation period. 51. Following Carter-Baker and the Supreme Court s decision in Crawford v. Marion County, 553 U.S. 181 (2008), many states reformed their election laws to include, inter alia, the requirement that a person provide some form of photo identification before their ballot will be counted. In Crawford, the Supreme Court embraced the 43 The Federal REAL ID Act of 2005, Pub. L. No , div. B, 119 Stat. 231, 302 (codified in scattered sections of 8 and 49 U.S.C ) established requirements that states must meet by 2008 for the issuance of photo identification that will be necessary to enter a federal building, board a plane or open a bank account. 202, 119 Stat. at Report of the Comm. on Federal Election Reform, pp , available at: Besides the Co-Chairs, this recommendation was supported by Commissioners Robert Pastor, Betty Castor, Rita Dimartino, Lee Hamilton, Kay Coles James, Benjamin Ladner, David Leebron, Nelson Lund, Shirley Malcom, Bob Michel, Susan Molinari, Robert Mosbacher, Ralph Munro, Jack Nelson, Tom Philips, and Sharon Priest. Commissioners Tom Daschle, Spencer Overton, and Raul Yzaguirre dissented. 26