Case 2:11-cv JTM-JCW Document 426 Filed 11/19/12 Page 1 of 22

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1 Case 2:11-cv JTM-JCW Document 426 Filed 11/19/12 Page 1 of 22 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA ROY FERRAND, ET AL v. CIVIL ACTION NO. 2: JTM - JCW TOM SCHEDLER, ET AL POST TRIAL MEMORANDUM BY THE SECRETARY OF STATE This is a case in which civic interests are common to all and free from dispute - - to maximize the opportunity for all interested citizens to register to vote while maintaining the integrity of the voter registration rolls. And without doubt the arguments and pleadings filed in the case express valuable ideas about how the expansion of registration procedures might be utilized at voter registration agencies to expand the voter rolls. But, the suit is not about incorporating good ideas into the NVRA. The question to be decided in the litigation is whether certain Louisiana agencies violated Section 7 of the NVRA as presently written in a way that directly impacted the named plaintiffs. Central to the argument in the suit are fundamental questions about the respective roles of Congress and the courts. The principal disagreement is whether Congress is the appropriate body to consider the modernization of voter registration procedures for federal elections or whether the court should force fit an existing act of Congress to transactions that the Act was obviously never intended to reach. However, the court is without jurisdiction to rule on the case. The named plaintiffs in the case have no direct stake in the outcome, the individual plaintiff Luther Scott, Jr. having been registered and eligible to vote since 2008, prior to grievance he alleges, and the organizational plaintiff Louisiana State Conference of the NAACP having been unaffected by any of the defendants alleged practices. Neither plaintiff can credibly claim to have been injured or aggrieved by a violation of the NVRA and therefore lack standing to bring the action. Apart from the question of the plaintiffs standing, the Louisiana Secretary of State maintains 1

2 Case 2:11-cv JTM-JCW Document 426 Filed 11/19/12 Page 2 of 22 disagreements about the construction of the NVRA in certain specific areas complained of by the plaintiffs. I. Standing and Subject Matter Jurisdiction Absent proof of standing, the court has no authority to decide the case, and the plaintiffs invoking the court s jurisdiction bear the burden of proving their standing to sue. A. General Requirement of Standing The courts of the United States have an obligation to assure themselves of litigants standing under Article III of the U.S. Constitution. Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180 (2000). Even if constitutional standing is not raised by the parties, the court must, where necessary, raise it sua sponte. SEC v. Forex Asset Management, LLC, 242 F.3d 325, 328 (5 Cir. 2001). This is so because the Federal Judiciary s authority to exercise judicial review and interpret the Constitution on the necessity to do so in the course of the judicial function of deciding cases. Marbury v. Madison, 5 U.S. 137 (1803). The case or controversy requirement under Article III assumes particular importance in ensuing that the Federal Judiciary respects the proper and properly limited role of the courts. Allen v. Wright, 468, U.S. 737, 750 (1984). If a dispute is not a proper case or controversy, the courts have no business deciding it or expounding the law in the course of doing so. No principle is more fundamental to the judiciary s proper role in our system of government than the constitutional limitation of federal court jurisdiction to actual cases or controversies. Raines v. Byrd, 521 U.S. 811, 818 (1997). The case or controversy requirement thus plays a critical role, and Article III standing enforces the Constitution s case or controversy requirement. DaimlerChrysler Corporation v. Charlotte Cuno, et al, 547 U.S. 332, (2006); Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 11 (2004). The inducible constitutional minimum of standing contains three elements. First, that plaintiffs must have suffered an injury in fact, an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of - - the injury has to be fairly traceable to the 2

3 Case 2:11-cv JTM-JCW Document 426 Filed 11/19/12 Page 3 of 22 challenged action of the defendant. Third, it must be likely as opposed to merely speculation that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, (1992); th ACORN v. Fowler, 178 F.3d 350, 356 (5 Cir 1989). B. Burden to Prove Standing The party invoking federal jurisdiction bears the burden of establishing the elements necessary for Article III jurisdiction. Thus, the elements of standing are not merely pleading requirements but rather an indispensable part of the plaintiffs case, and each element must be supported in the same way as any other matter on which the plaintiffs bear the burden of proof. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Standing to sue must be proven, not merely asserted, in order to provide a concrete case or controversy and to confirm the court s ruling within the proper judicial sphere. Doe v. Tangipahoa Parish th School Board, 494 F.3d 494 (5 Cir. 2007). Each element of standing must be supported in the same way as any other matter on which the plaintiffs bear the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation. Lujan, supra; Inclusive Communities Project, Inc. v. Texas Department of Housing and Community Affairs, 749 F. Supp.2d 486 (N.D. Tex. 2010). Article III Standing is a threshold issue that must be proved in the same manner as any other element of the case. Article III Standing must be addressed before all other issues because it determines the Court s fundamental power even to hear the suit. Ford v. Nylcare Health Plans of the Gulf Coast, Inc, th 301 F.3d 329 (5 Cir. 2002). C. Standing of Luther Scott, Jr. Luther Scott, Jr. did not carry his burden of proving that he had standing. He demonstrated no injury. He registered to vote in His registration became effective June 10, He has been eligible to vote in federal elections since June 10, The NVRA violations by which he claims to have been aggrieved 3

4 Case 2:11-cv JTM-JCW Document 426 Filed 11/19/12 Page 4 of 22 all occurred after June 10, after he was registered and eligible and able to vote in federal elections. The NVRA applies only to elections for federal office. ACORN v. Miller, 129 F.3d. 833, 837 (6 th Cir. 1997). A party has no standing to sue under the NVRA where the right to vote in a federal election has th not been infringed or impaired. Roberts v. Wamser, 883 F.2d 617, 621 (8 Cir. 1989). It is essential to standing under the NVRA that the plaintiff show that his right to vote in a federal election was impaired. Krislov v. Rednour, 946 F.Supp. 563, 566 (N.D. Ill. E. Div. 1996), cited favorably by the Fifth Circuit in th ACORN v. Fowler, 178 F.3d. 350, 366 (5 Cir. 1999); Broyles v. Texas, 618 F.Supp. 661 (S.D. Tex. 2009); Dobrovolny v. Nebraska, 100 F.Supp (D.Neb. 2000). Absent such a showing, the plaintiff lacks standing, and the court lacks jurisdiction to decide the NVRA claim. As the basis for his claim Scott first complains that he did not receive a voter application form with his application for food stamps (SNAP) at a DCFS office in September He was already registered to vote on that date. Besides, Scott signed and dated a voter declination form along with his September 2009 application. Shawn Banks, DCFS intake employee, testified that her contemporaneous notes reflected that Scott declined the opportunity to fill out a voter registration form during the food stamps application interview in September By habit and practice, Ms. Banks offered voter registration to all food stamp applicants, without exception, and noted their choice in that regard in her activity log. Her activity log shows that Scott declined the proffered opportunity to complete a voter register form during his SNAP interview in September Scott next complained that in 2010, he was not given a voter registration form while changing or verifying (which was not clear) his address for food stamps with DCFS. Scott was registered and eligible to vote then. Finally, Scott again chose not to fill out a voter registration form in December, 2011 in connection with a food stamp (SNAP) application through DCFS. The suit was filed prior to this particular declination. Presumably, Scott was aware of his opportunity to fill out a registration form through DCFS. If not, he was 4

5 Case 2:11-cv JTM-JCW Document 426 Filed 11/19/12 Page 5 of 22 informed by DCFS employee Yolanda Ash that he had that opportunity. Nonetheless, he declined the opportunity to change his voter registration address by completing a voter registration form in December Scott has no basis for a complaint in connection with the December 2011 food stamps application. Once registered to vote, a Louisiana voter remains eligible to vote unless the voter moves out of parish. If the voter continues to reside in the parish in which he registered, his registration in that parish remains valid and effective even if his address changes within the parish. Angie Rogers, Louisiana Commissioner of Elections, so testified. The Louisiana fail safe provisions in the Louisiana Election Code so provide. La.R.S. 18:110, 521. Scott testified that he lived in New Orleans during all times relevant to his claim. He said that he always lived in Louisiana, always in New Orleans. I lived here in the City and the State all my life. All of his applications with DCFS in 2009, 2010 and 2011 and both of his 2008 voter registration applications in May and August have New Orleans addresses. There is no evidence in the record that Scott lived outside New Orleans. Scott remained eligible to vote in federal elections once his voter registration application was approved and made effective June 10, The ERIN database shows that he has remained on the voter rolls since that date, and his registration has never been cancelled. Luther Scott could have gone to the polls and voted after June 10, He was registered and eligible to vote in September 2009 when he applied for food stamps through DCFS. He was registered and eligible to vote in 2010 when his address was verified for food stamp benefits. He was registered and eligible to vote when the suit was filed in July He was registered and eligible to vote in December 2011 when he applied for food stamp benefits. He was registered and eligible to vote at the time of trial. His right to vote was not impaired by any alleged NVRA violation. Scott was not injured in the Article III sense. He was not aggrieved under 42 U.S.C gg(9)(b). The most Scott can argue is that he was unaware that he was registered to vote. He said that he did not know. He admitted that he did not try to find out. However, the Louisiana voter registration records on 5

6 Case 2:11-cv JTM-JCW Document 426 Filed 11/19/12 Page 6 of 22 ERIN reflect that the Registrar mailed Scott a voter confirmation letter at 510 St. Patrick Street in New Orleans, the address Scott provided, in accordance with La.R.S. 18: 101.1, 115. Thereafter, Scott s registration was made effective June 10, Scott s knowledge of his registration is not relevant to any issue before the court. His lack of knowledge has no legal consequence. Scott had to prove his standing in order to invoke the court s jurisdiction. It was his threshold burden. He failed to carry it. He did not produce any evidence that he attempted to vote after June 10, 2008 and was prevented from voting. He did not show that he was prevented from voting in a federal election (or in any election) by reason of a NVRA violation (or for any reason). He produced no evidence that his right to vote in a federal election was impaired. He presented no evidence that he was injured or aggrieved by any alleged NVRA violation. Scott is not within the category of persons to whom a private right of action is granted by 42 U.S.C gg(9)(b). He is not a person aggrieved by a violation of the Act. D. Standing of the Louisiana State Conference of the NAACP The Louisiana State Conference of the NAACP (Louisiana NAACP) did not carry its burden of 1 proving it had standing. It has demonstrated no injury in fact nor any causal connection between the alleged injury and any defendant s conduct. 1. The 2010 Grant Activity Taylor conceded on cross that all voter registration activity conducted by Louisiana NAACP for 2010 was funded by grants from NAACP national office: [1] $5,000 from Let s Do It Again 2010 grant (SOS Ex 60); and [2] $5,000 from 2010 Get Out the Vote grant (SOS Ex 56). But, both of these grants involved phone banking for calls to persons already registered to vote. a. Let s Do It Again 2010 Taylor testified that Louisiana NAACP adhered to the grant s purpose to increase the census count in specified census tracts in order to increase voter turnout in underperforming precincts. SOS Ex 60, p. 1 For standing, this Court limited the Louisiana NAACP to proof of voter registration activities conducted in Doc 421,

7 Case 2:11-cv JTM-JCW Document 426 Filed 11/19/12 Page 7 of The program described was census oriented, not voter registration oriented, Our plan is to reach out to the 6 different census tract areas that are projected to have lower voter turnout percentages for the current census than they had in the 2000 Census. The plan was to implement the phone bank by utilizing the VAN system... (SOS Ex 60, p. 0653), which Taylor testified listed names of registered voters to be called. Enunciated goals were to: educate respondents on how important it is that everyone is accounted for, hence the theme of this program, Yes We Count; and to increase the membership of the NAACP. SOS Ex 60, p Voter registration was virtually unmentioned. Taylor conceded that activities funded by Let s Do It Again 2010 grant were phone banking. On redirect, his attorney pointed out that the budget also listed door to door canvassing as a proposal, but canvassing was described in the Let s Do It Again materials as A person who knocks on the doors of voters encouraging voter participation in an upcoming election. On questioning by the Court, Taylor said that Louisiana NAACP received grant money by checks from National NAACP which were furnished to La. NAACP President Johnson and deposited in Louisiana NAACP checking account. Johnson acknowledged that he testified in a deposition that the Louisiana NAACP had never gotten grant money from anybody for anything but claimed at trial to have not understood the deposition question. Taylor claimed that checks were written from the Louisiana NAACP account to pay for expenses and that the expenses were documented. However, see SOS Ex 38, a request for production propounded to the Louisiana NAACP by the Secretary of State for: (a) a copy of all financial and expense records... for each and every voter registration drive, (b) a copy of documents containing the names and addresses of all persons who participated or assisted in each and every voter registration drive; and (c) a copy of any and all notes, records, memoranda, correspondence, report, or other document of any kind or nature...concerning each and every voter registration drive. In response (SOS Ex 40), the Louisiana NAACP produced no checking account records, no deposit slips, no checks for expenses, and no expense documentation of any kind for 2010 voter registration activity, even though the grant required document retention to substantiate and justify expenditures. All grant funds 7

8 Case 2:11-cv JTM-JCW Document 426 Filed 11/19/12 Page 8 of 22 were required to be deposited into an approved account; all bills for activities to be paid by check from the approved account; and the grantee Must keep intact and reconcile all bank statements and cancelled checks. Monthly bank statements and cancelled checks must be kept for three years... SOS Ex 60, p b. Get Out The Vote Regarding SOS Ex 56, the other grant money allegedly received in 2010, Taylor testified that all activity funded was for phone banking. Again no records of grant receipt or expenditures or records of the specific activity was provided in discovery or introduced at trial. The toolkit Taylor said he used for this activity (P. Ex. 238) defines the primary functions of the telephone for Get Out The Vote Phone Banking to include: (a) encouraging targeted voters to get out and vote, and (b) providing information on poll locations and hours,... P. Ex 238, p See also the definition of Phone Bank as The organization of a group of telephones and callers who call registered voters and persuade them to vote. P. Ex. 238, p Taylor testified that...we used this as the last part to finish up telephone banking--to get the folks out to vote. 2. Taylor at Health Clinic and Food Stamp Office In closing argument, plaintiff counsel contended Taylor s testimony that: he registered and--he assisted in registering individuals to vote at health clinics and stamps office approximately once a month during a three month period in 2010 on behalf of Louisiana NAACP. And that time spent registering people who should have received such services from the state is sufficient to confirm standing. If Taylor did do so, he did not do so pursuant to either grant as the grants were for phone banking and perhaps some door to door canvassing of voters. And while Taylor claims to have acted on behalf of the Louisiana NAACP, he acted alone and personally, in the sense that I was the one who did it without letting the Louisiana NAACP know that he was doing it. It is clear from the testimony that he was on a mission of his own. Taylor testified that in 2004 an unidentified worker outside an unidentified health unit registered more voters at that health unit than at a Walmart or an apartment complex. Regarding the health unit in 8

9 Case 2:11-cv JTM-JCW Document 426 Filed 11/19/12 Page 9 of 22 Hammond in 2010, no testimony was offered to show what, if any, public assistance offices regulated by the NVRA were located there, nor that the persons who filled out a registration form with Taylor were food stamp applicants and had not been offered or filled out a registration form inside the building. With respect to Taylor s 2010 efforts outside an Amite food stamp office, the only testimony offered at trial regarding the practice of intake workers handling food stamp applicants was of Yolanda Ash and Shawn Banks, intake workers at the New Orleans office, who testified that food stamp applicants in 2009 and 2010 were offered the opportunity to register to vote, pursuant to established procedures of DCFS. No registration effort by Taylor was shown to be linked to NVRA violations by any defendant, certainly not the Secretary of State. The requisite proof in that regard is missing. 3. No Injury In Fact Taylor had no personal knowledge of and could not even suggest or approximate a figure or amount of time spent by Louisiana NAACP in attempting to register voters at either DCFS or DHH public assistance offices because I do not know how many people went, I don t know how many hours were spent, I don t who did it. And more specifically, Louisiana NAACP President Johnson admitted that, with respect to the Louisiana NAACP, Of course there is no direct effort to register voters who are in public assistance. Nor did the evidence show that Taylor s personal effort to register people outside a food stamp office amounted to wasted resources. For, as Taylor testified, the Louisiana NAACP has no shortage of volunteers, it has volunteers who will work and never get a dime, stating That s why we re the NAACP. Obviously Taylor counts himself in that number. The Louisiana NAACP failed to carry its burden of proof to establish standing. In ACORN Fair th Housing v. LeBlanc, 211 F.3d 298, 305 (5 Cir. 2000), the Fifth Circuit cited ACORN v. Fowler, 178 F.3d th 350, 360 (5 Cir. 1999) for the proposition that an organization could have standing if it had proven a drain on its resources counteracting the effect of defendant s actions. Citing the conjectural and hypothetical nature of the organization s testimony, failure to mention any specific projects it put on hold, and failure 9

10 Case 2:11-cv JTM-JCW Document 426 Filed 11/19/12 Page 10 of 22 to describe in any detail how ACORN had to redouble efforts in the community to combat defendant s action, the Fifth Circuit found ACORN failed to satisfy the injury in fact requirement and lacked standing. The Louisiana NAACP failed to prove injury in fact. The grant activity is suspect at best due to the lack of the required (checking account) documentation and Johnson s statement that grants were never received. More importantly, this work was either census related phone banking or get out the vote phone banking, both to registered voters, unrelated to any actions of any defendant. Taylor s personal efforts at an Amite foot stamp office and a Hammond health unit are not proven to be efforts to combat any defendant NVRA failures, but more importantly neither wasted resources nor a drain on resources. As the plaintiff in ACORN Fair Housing, the Louisiana State Conference of the NAACP has failed to prove standing. 4. No Causal Connection Between The Alleged Injury and the Violation Complained Of Under the Fifth Circuit jurisprudence, the Louisiana NAACP must prove that it devote resources to voter registration efforts because the involved state agencies failed to offer the opportunity to register. Evidence of this connection -- the ACORN v. Fowler court termed it a concrete and demonstrable injury 2 directly resulting from the alleged violation of the NVRA - - is absent from the record. The Louisiana NAACP has the burden of proving their standing and so have the burden of producing sufficient evidence to prove a link between their organizational activities and a specific deficiency in execution of the NVRA in public assistance offices. Key to the proof of organizational standing is evidence of a direct link between organizational dedication of resources and defendant s alleged violations of the Act. The Louisiana NAACP failed to carry their burden of proof on the issue. In statutory parlance, the organization must be aggrieved or as explained in ACORN v. Fowler must have suffered a concrete and demonstrable injury directly resulting from its claims that the defendants violated the NVRA. It is not enough that the Louisiana NAACP has a civic interest in voter registration. 2 th ACORN v. Fowler, 178 F.3d 350, 362 (5 Cir. 1999). 10

11 Case 2:11-cv JTM-JCW Document 426 Filed 11/19/12 Page 11 of 22 II. The Agency Registration Provisions of The NVRA Apply To In Person Transactions at Public Assistance Agencies 3 Among the violations charged against Schedler is the claim that Schedler wrongly interprets Section 4 and 7 of the NVRA (42 U.S.C. 1973gg-2 and 1973gg-5) to apply to in person applications only at offices that are designated as voter registration agencies under Section 7 of the Act. Schedler responds that he understands the Act to apply to in person applications at public assistance and disability services offices because the Act clearly says so. 1973gg-2. National procedures for voter registration for elections for federal office (a)... each state shall establish procedures to register to vote in elections for federal office. * * * (3) by application in person * * * (B) At a federal, state, or non governmental office designated under section 1973gg-5 of this title. In House Report (103 H. Rpt. 9), Congress made it clear that Section 4(a), (42 U.S.C gg(2)(a)), mandates that States adopt procedures in three areas, (1) simultaneously with an application for a drivers license; (2) by mail application; and (3) by application in person, either at an appropriate registration office or at a Federal, State or private sector location (called agency registration in the House Report). With respect to agency registration, the House Report states at p. 4: Section 4(a) requires that States, in addition to any other methods for voter registration provided for under State law, establish procedures to permit voter registration in elections for Federal office: simultaneously with an application for a drivers license; by mail application; by application in person, either at an appropriate registration office, or at a Federal, State or private sector location ( agency registration ). [emphasis supplied] 3 Plaintiffs argued at trial that the in person vs. remote transaction issue remained a trial issue. To the extent that it is, the Secretary s primary argument in that regard is set out is Doc Out of an abundance of caution, the Secretary supplements its argument here with reference to the House and Committee Reports from the adoption of the NVRA. 11

12 Case 2:11-cv JTM-JCW Document 426 Filed 11/19/12 Page 12 of 22 By passing the NVRA Congress did not enact election procedures. Rather, the Congress gave the States discretion in the adoption of election procedures for federal elections subject to constraints defined in Sections 5, 6 and 7 of the Act for those three areas in which the adoption of procedures was mandated - - simultaneously with drivers license applications, by mail, and in person applications at designated state and federal agencies. It would seem obvious enough that those sections of the NVRA that follow Section 4, that is Sections 5 (drivers license applications), Section 6 (by mail) and Section 7 (in person applications at designated state and federal agencies), are not supplemental to Section 4(a) but rather, pertain to those three areas listed in Section 4(a) as areas for which the individual states must enact regulations and laws. The structure of the Act is plain and obvious in that regard, but to the extent that further explanation is required, the above cited House Report makes is abundantly clear that agency registration applies to in person applications at the designated agencies. Neither 1973gg-2 nor 1973gg-5 are to be read in isolation. They are to be read together and in conjunction to arrive at a comprehensive and consistent understanding of the Act. Plaintiffs are wrong to argue that Section 4 of the Act (42 U.S.C. 1973gg-2) should not be read in conjunction with Section 7 (42 U.S.C. 1973gg-5). The plaintiffs is a tortured construction of the Act and disregards the Act s structure. Again, 1973gg-2 calls for the states to establish procedures for voter registration in connection with three categories of state transactions. The first area under 1973gg-2(a)(1) is by simultaneous application for a motor vehicle driver s license (frequently referred to as the Motor Voter provision). Section 5 of the Act (42 U.S.C. 1973gg-3) then details how voter registration is to occur in connection with motor vehicle license applications. Similarly, 1973gg-2(a)(2) mandates the adoption of voter registration procedures for mail applications, and Section 6 (42 U.S.C. 1973gg-4) details the requirements for mailed registration. 1973gg-2(a)(3) requires the establishment of procedures for application in person at sites designated 12

13 Case 2:11-cv JTM-JCW Document 426 Filed 11/19/12 Page 13 of 22 under Section 7 (42 U.S.C gg-5). 1973gg-5 then details procedures to be utilized for application in person at designated offices. For each of the three areas of state activity identified in 1973gg-2, Congress provided detailed instructions on how to conduct voter registration in each area. This is the only coherent way to construe the Act. Forcing a construction of the Act that would effectively divorce 1973gg-2 from the following sections disjoins the Act rather than reading its provisions in pari materia. Section 7 of the Act cannot be read in isolation from Section 4 anymore than Section 5 or Section 6 can be read in isolation from Section 4. Sections 5, 6 and 7 relate back to Section 4 with respect to each of the three kinds of transactions identified as being governed by the NVRA. It is untenable to suggest that Section 7 has nothing to do with in person transactions. This construction of the statute would mean that the states are required to establish registration procedures for in person transactions but need not adopt any procedures at all for remote transactions. Section 7 cannot so readily be severed from Section 4. III. Rewriting a Statute Is a Job for Congress, Not For The Courts Rewriting a statute is a job for Congress, not for the courts. Gonzales v. Arizona, 453 F.Supp.2nd 997, 1003 (D. Arizona 2006). It is not the function of the courts to reformulate a statute in pursuit of its purpose or in light of changing realties. If Congress determines that its statute needs to be amended, it can certainly act in that regard. No legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the essence of legislative action. It frustrates legislative intent to assume simplistically that whatever furthers the statute s primary objective must be the law. Norfolk Southern Railway Co. v. Sorrell, 549 U.S. 158, 171 (2007); Rodriguez v. United States, 480 U.S. 522, (1987). Without question, recent technological developments have brought about an explosion in on-line and transactions, and the law in many instances has not kept pace with the myriad changes taking place as a result 13

14 Case 2:11-cv JTM-JCW Document 426 Filed 11/19/12 Page 14 of 22 of widespread internet use. It is likely that Congress, when it enacted the NVRA in 1993, did not foresee the potential ubiquity of on-line transactions and hence did not include provisions for on-line transactions in the NVRA. The plaintiffs want the Court to do what Congress has not done by extending the NVRA to on-line and other remote transactions. Schedler believes that modernizing the NVRA is the job of Congress. Uniform voter registration requirements for remote agency transactions are desirable, but the NVRA as presently written, does not include provisions for remote transactions. Schedler believes that a number of considerations must be taken into account before establishing on-line registration procedures for the various entities that may be designated as voter registration agencies under Section 7, but weighing out these considerations are a legislative rather than a judicial function. Numerous considerations arise in that regard. What will the cost of electronic transactions be to these entities? Will voter registration actually be suppressed if participation as a voter registration agency becomes so onerous and costly that non-governmental agencies decline participation? Can security issues and integrity of voter information be assured by all potential voter registration agencies? Is it prudent to impose such obligations on all voter registration agencies? For example, small town registration would likely be fostered by the designation of banks, hardware stores, farm supply stores, churches and the like as voter registration agencies. Such non-governmental entities may be willing to participate if the registration application can be completed at the bank, store or other entity. The question may well be different if each such entity is required to establish on-line registration opportunities, purchase software, program security into computers. The steps may very well discourage participation by nongovernmental entities who might otherwise be willing to help local citizens with voter registration. These are all legislative concerns more appropriately considered by Congress than by the courts. IV. Coordination of Responsibilities by Secretary of State Under the terms of the NVRA, the Secretary of State as Chief Elections Official is assigned the 14

15 Case 2:11-cv JTM-JCW Document 426 Filed 11/19/12 Page 15 of 22 responsibility to coordinate responsibilities with other state agencies designated as voter registration agencies under 1973gg-5. Plaintiffs argue that reading the Act through the prism of its purpose enlarges the duty of the Secretary beyond coordination of state responsibilities (terms actually used in the Act, 42 U.S.C. 1973gg-8) to include supervision and enforcement over the other agencies (terms nowhere contained in the Act and powers nowhere bestowed upon the Secretary by state law). Plaintiffs rely on Harkless v. Brunner, 545 F.3d 445 (6 Cir. 2008) for the proposition that the chief election official s responsibilities include enforcement. The Harkless court, however, relied upon state laws to find the enforcement powers by the Ohio. Ohio law empowers the Secretary to [c]ompel the observance of election officers in the several counties of the requirements of the election laws, id (M). Harkless, p Accordingly, even if the word coordination in the NVRA is truly vague, Ohio law makes it abundantly clear that the Secretary is responsible for the implementation and enforcement of Section 7. Ohio law also makes clear that she [the Secretary of State] has the authority to do so. Harkless, p Similar provision are not to be found in Louisiana law, and the court would have to restructure Louisiana law with regard to relations among agencies within the executive branch of government in order to create enforcement powers or confer such authority to the Secretary of State. These powers are not assigned by the NVRA contrary to plaintiffs argument. V. Equal Assistance Obligation Plaintiffs contend that the Secretary of State afforded incorrect advice to DCFS and DHH regarding their equal assistance obligation in helping applicants fill out voter registration forms. The advice afforded by the Secretary of State in that regard is found in the Secretary s Implementing the National Voter Registration Act In Voter Registration Agencies with regard to assistance is: Assist the person in completing the mail voter registration application unless the person refuses. The official must provide the same degree of assistance to each person in completing the voter registration application as the official provides to a person in completing their own agency forms. 15

16 Case 2:11-cv JTM-JCW Document 426 Filed 11/19/12 Page 16 of 22 The advice given to the agencies regarding equal assistance tracks the NVRA and correctly advises public assistance agencies in that regard. VI. Registrar s of Voters, Not Public Assistance Agencies, Have the Responsibility to Verify Voter Register Forms The Secretary of State has correctly advised public assistance agencies that the responsibility for verifying completed voter registration forms belongs to Registrars of Voters, not to the public assistance agencies. House Report validates the Secretary of State s position in that regard. The Report notes at p. 8, The terms State election officials and appropriate State election official refer to whatever election official under State law has the appropriate responsibility. In some cases, this may be a local election official. Although the application for voting registration is simultaneous with an application for a driver s license, it is not the intent of the bill to supplant the traditional role of voting registrars over the registration procedure. The bill makes it very clear that the motor vehicle agency is responsible for forwarding voting registration applications to the appropriate State election official. It should be made very clear to any applicant in a driver s license bureau that the application for voter registration is an application which must be reviewed by the appropriate election officials. Only the election officials designated and authorized under State law are charged with the responsibility to enroll eligible voters on the list of voters. This bill should not be interpreted in any way to supplant that authority. The Committee is particularly interested in ensuring that election officials continue to make determinations as to applicant s eligibility, such as citizenship, as are made under current law and practice. Applications should be sent to the appropriate election official for the applicant s address in accordance with the regulations and laws of each State. While the foregoing discussion appears in the context of driver s license applications, it applies with equal force to agency registrations. Only Registrars, not DHH, DCFS or other agencies, have authority to review and determine voter registrations applications. The agencies responsibility with respect to completed voter registration applications is to forward them to the appropriate Registrar of Voters office. The House Report makes the intent of Congress crystal clear in that regard. Thus, the plaintiffs complaints against the Secretary of State reflect a fundamental misunderstanding 16

17 Case 2:11-cv JTM-JCW Document 426 Filed 11/19/12 Page 17 of 22 of the Act on the part of the plaintiffs. In both areas complained of, the Secretary of State correctly advised the other agencies. VII. Declination Forms Plaintiffs argue that the Secretary of State erred by advising registration agencies that no further steps need be taken once an applicant declines the offer to register to vote either by checking the No box on the declaration form or by failing to check either box. 4 Plaintiffs cite the Valdez decision in support of its position in that regard. The Valdez court held that the obligation to distribute voter registrations forms by public assistance offices continues in effect under the NVRA unless the applicant marks the NO box on the declination form; otherwise, the declination is not in writing and so does not relieve the agency of its distribution obligation. Schedler submits that the Valdez case is not well reasoned and should be given only the weight that the strength of its reasoning will bear. Schedler suggests that unless a signed declination form is construed to constitute the writing contemplated by 42 U.S.C. 1973gg-5(a)(6)(A), the declination scheme under Section 7 of the NVRA becomes surplusage and has no meaning at all. The required declination question, expressly mandated by 1973gg-5(a)(6)(B)(I), is, If you are not registered to vote where you live now, would you like to apply to register to vote here today? YES NO Then, in prominent type, the form must by the terms of the statute state, IF YOU DO NOT CHECK EITHER BOX, YOU WILL BE CONSIDERED TO HAVE DECIDED NOT TO REGISTER TO VOTE AT THIS TIME. The Valdez court held that checking the NO box is a declination to register in writing for all purposes, so that the public assistance agency has no obligation to give the applicant a voter registration form 4 th Valdez v. Squirer, 676 F.3d 935 (10 Cir. 2012) 17

18 Case 2:11-cv JTM-JCW Document 426 Filed 11/19/12 Page 18 of 22 if the NO box is checked; however, they say not checking any box at all merely means that the applicant has declined to register at this time...at the time they are present in one of HSD s offices [public assistance office] seeking assistance so that the agency must still give the applicant a registration form if a box is not checked. Valdez, This construction of the Act is so anomalous that it renders the declination provisions absurd. The question posed to the applicant is, Would you like to apply to register to vote here today? Answering NO to that question by checking the NO box means nothing more than the applicant has opted not to register at the time of his application - - here today. It strains the imagination to see how checking the NO box differs from not checking a box at all. Both mean the same thing - - that the applicant declines to register to vote at the time of application - - here today or at this time. With respect to an applicant who does not check either box on the declaration form, the Valdez court reasons, It is conceivable that an applicant who chooses not to register at that time might still be interested in receiving a mail voter registration form and completing it at another time and/or location. Is it not equally conceivable that an applicant who checks the NO box in response to the question, would you like to register to voter here today, might still be interested in receiving a mail voter registration form? The distinction that the Valdez court and the present plaintiffs make in regard to the declination form is so contrived and artificial that it defies rational explanation. The Valdez formulation does, however, reinforce the argument that the NVRA applies only to in person transactions. The statutorily required declination form is unworkable with remote transactions because the language contained on it has no meaning to an applicant completing an application by mail, telephone or online. The declination provisions become inoperative in the context of 5 remote applications. With respect to the failure to check either box, Valdez says, the phrase AT THIS TIME means that the failure must instead be interpreted simply as a decision by the applicant not to register to vote at that time, i.e., at the time they are present in one of the HSD offices seeking services or assistance. 5 Use of the declination question, Would you like to register to voter here today? makes it clear that the NVRA was never intended to apply to remote applications. 18

19 Case 2:11-cv JTM-JCW Document 426 Filed 11/19/12 Page 19 of 22 Valdez, 946. By implication the failure to check either box outside of the office, when the applicant is not present in the office face to face with a representative leaves the applicant to guess as to what the question is asking and leaves the representative to guess at what the applicant meant by marking or not marking the declination form. Schedler suggests that this is so because Congress never contemplated that the agency registration provisions of the NVRA would be applicable to anything other than in person applications. If the agency registration provisions were construed to apply to anything other than in person applications, the declination form would have no meaning at all. The declination question, Would you like to register to voter here today? on a telephone application would be nonsensical. Yet the NVRA expressly mandates that question in those terms. And how would the remote applicant decline in writing in response to that question? If the voter answered, no, over the telephone, would the agency interviewer mail the applicant a declination form? The Secretary of State s understanding in regard to the execution of declination forms derives from the Federal Elections Commission s 1993 FEC Guide to Implementing the NVRA. In that publication, the FEC, in addition to written explanation of the procedure, presented a flow chart as to how the registration procedures are intended to work. The flow chart with respect to agency registration begins with Block One, the Agency offers applications. There appear two options at that point, either the applicant declines application or the applicant completes application. Where the applicant declines application, the agency retains the declination and is directed to STOP. The Joint Conference Committee Report on the Act in reconciling the House and Senate versions of the NVRA says the following with respect to the requirements of 42 U.S.C. 1973gg-5(a)(6)(B), Another provision (Section 7(a)(6)(B) would require an agency to include on a form the question If you are not registered to vote where you live now, would you like to apply to register to vote here today? In response to that question, the form would include a box for the applicant to accept or decline to apply to register to vote. Failure to check either would be deemed a declination for purposes of this provision. (excerpt from Joint Statement of the Committee of Conference) [emphasis supplied] 19

20 Case 2:11-cv JTM-JCW Document 426 Filed 11/19/12 Page 20 of 22 The Secretary of State has followed the guidance of the FEC and the Joint Conference Committee in that regard. The declaration form is the writing referred to in 42 U.S.C. 1973gg-5(a)(6)(A). The declaration tells the applicant in all capital letters IF YOU DO NOT CHECK EITHER BOX, YOU WILL BE CONSIDERED TO HAVE DECIDED NOT TO REGISTER TO VOTE AT THIS TIME. In that context and with that instruction, the applicant is told that he need not check a box in order to decline. Not checking a box in those circumstances constitutes the affirmative act of declining the application to vote. Treating a declaration form as something other than a writing depending upon whether or not the box on the form is checked or not checked makes no sense in the context of the transaction. Similarly, the Federal Election Commission in its principal publication on the Act s requirements states with regard to Section 7(a)(6)(A) and (B) Those who decline to register to vote must do so in writing or by not checking a box on a form that contains wording specified in the Act. Nothing in the FEC manual on the implementation of the NVRA even hints that voter registration forms must be given to those persons who decline the opportunity to register when they appear in person at a voter registration agency. See, Implementing the National Voter Registration Act of 1993: Requirements, Issues, Approaches, and Examples, prepared by The National Clearinghouse on Election Administration, Federal Election Commission, January 1, Such attenuated, tortured constructions of the NVRA s declination provisions as in Valdez and urged by the plaintiffs have some appeal at first glance, but applied in a real world setting quickly fall apart. 1973gg-5(a)(6)(B) creates the declaration form that constitutes the declination in writing if signed by the applicant during the application process, and the agency obligations with respect to the distribution of forms does not extend beyond that. CONCLUSION Accordingly, the Secretary of State submits that Plaintiffs claims should be denied. 20

21 Case 2:11-cv JTM-JCW Document 426 Filed 11/19/12 Page 21 of 22 Respectfully Submitted: s/celia R. Cangelosi CELIA R. CANGELOSI Bar Roll No Government Street, Suite 101 P.O. Box 3036 Baton Rouge, LA Telephone: (225) s/carey T. Jones CAREY T. JONES Bar Roll No Vincent Road P.O. Box 700 Denham Springs, LA Telephone: (225) Attorneys for Defendant, Tom Schedler in his official capacity as Louisiana Secretary of State 21

22 Case 2:11-cv JTM-JCW Document 426 Filed 11/19/12 Page 22 of 22 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the above and foregoing Post Trial Memorandum by the Secretary of State was sent electronically via the Court electronic filing system to the following: Ronald L. Wilson (cabral2@aol.com) Dale Ho (dho@naacpldf.org) Natasha Korgaonkar (nkorgaonkar@naacpldf.org) Ryan P. Haygood (rhaygood@naacpldf.org) Niyati Shah (nshah@projectvote.org) Michelle Rupp (mrupp@projectvote.org) Sarah Brannon (sbrannon@projectvote.org) Israel David (israel.david@friedfrank.com) Michael B. De Leeuw (michael.deleeuw@friedfrank.com) Erica Sollie David Yellin Jesse Ryan Loffler Stephen R. Russo (stephen.russo@la.gov) David McCay (david.mccay@la.gov) Douglas L. Cade (douglas.cade@la.gov) Kimberly L. Humbles (kim.humbles@la.gov) Rebecca Claire Clement (rebecca.clement@la.gov) Brandon James Babineaux (brandon.babineaux@la.gov) Harry Philips, Jr. (skip.philips@taylorporter.com) Amy C. Lambert (amy.lambert@taylorporter.com) Katia Desrouleaux (katia.desrouleaux@taylorporter.com) Celia Alexander (celia.alexander@la.gov) Eboni Townsend (eboni.townsend@la.gov) Charles L. Dirks, III (charliedirks@gmail.com) Counsel for Defendants Counsel for Plaintiffs th Baton Rouge, Louisiana, this 19 of November, s/celia R. Cangelosi CELIA R. CANGELOSI 22