Case No IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Transcription

1 Case No IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT LUTHER SCOTT, JR., for himself and all other persons similarly situated; LOUISIANA STATE CONFERENCE OF THE NAACP, for themselves and all other persons similarly situated, Plaintiffs-Appellees, v. TOM SCHEDLER, in his official capacity as the Louisiana Secretary of State, Defendant-Appellant. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA USDC No. 2:11-CV-926 PLAINTIFFS APPELLEES OPPOSITION TO APPELLANT S PETITION FOR HEARING EN BANC NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. Sherrilyn Ifill Janai Nelson Christina A. Swarns Ryan P. Haygood Natasha M. Korgaonkar Leah C. Aden Deuel Ross 40 Rector Street, Floor 5 New York, NY Telephone: (212) Facsimile: (212) nkorgaonkar@naacpldf.org PROJECT VOTE Sarah Brannon* Niyati Shah** Michelle Rupp*** th Street NW, Suite 250 Washington, DC Telephone: (202) Facsimile: (877) *Authorized to practice only in Maryland. Practice in D.C. limited to cases in federal court. **Admitted in New Jersey & New York. Practice in D.C. limited to cases in federal court. *** Authorized to practice only in Virginia. Practice in D.C. limited to cases in federal court.

2 Ronald L. Wilson 701 Poydras Street, Suite 4100 New Orleans, LA Telephone: (504) Facsimile: (504) FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP Israel David Jesse Ryan Loffler One New York Plaza New York, NY Telephone: (212) Facsimile: (212) Counsel for Plaintiffs-Appellees ii

3 TABLE OF CONTENTS TABLE OF AUTHORITIES...iv CERTIFICATE OF INTERESTED PERSONS... vii ARGUMENT...1 I. The Panel Correctly Concluded That The Secretary s Coordination Responsibilities Include Enforcement Of The NVRA...2 a. The panel s well-reasoned decision is based on a cohesive reading of the NVRA and established precedent of other Circuits....3 b. Appellant attempts to negate the panel s holding without offering any logical explanation of his coordination responsibilities....5 II. The Panel s Decision Falls Squarely Within The Bounds Of The Constitution And Does Not Raise Federalism Concerns...8 a. The panel s conclusion is constitutional...9 b. Louisiana s implementing state law does not constrain Appellant s ability to discharge his Section 10 responsibilities.11 CONCLUSION...14 iii

4 TABLE OF AUTHORITIES Page(s) Cases Alfaro v. Comm r of Internal Revenue, 349 F.3d 225 (5th Cir. 2003)...2 Arizona v. Inter Tribal Council of Arizona, Inc., -- U.S. --, 133 S. Ct (2013)...3, 11 Ass n of Cmty. Orgs. For Reform Now v. Edgar, 880 F. Supp (N.D. Ill. 1995)...10 Ass n of Cmty. Orgs. for Reform Now v. Miller, 129 F.3d 833 (6th Cir. 1997)...10 Ass n of Cmty. Orgs. for Reform Now v. Ridge, Nos , , 2000 WL (E.D. Pa. March 30, 1995)...10 Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985)...11 Condon v. Reno, 913 F. Supp. 946 (D.S.C. 1995)...10 Franks Inv. Co. LLC v. Union Pacific R. Co., 593 F.3d 404 (5th Cir. 2010) (en banc)...4 Gonzalez v. Arizona, 677 F.3d 383 (9th Cir. 2012) (en banc)...10 Harkless v. Brunner, 545 F.3d 445 (6th Cir. 2008)...passim Hillsborough Cnty. v. Automated Med. Labs., Inc., 471 U.S. 707 (1985)...13 Int l Paper Co. v. Oulette, 479 U.S. 481 (1987)...14 iv

5 Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947)...11 U.S. v. New York, 700 F. Supp. 2d 186 (N.D.N.Y. 2010)...10 United States v. Louisiana, Civ. No JJB, 2011 WL (M.D. La. Dec. 1, 2011)...3, 5 United States v. Missouri, 535 F.3d 844 (8th Cir. 2008)...2, 3, 5 Valdez v. Herrera, Civ. No , 2010 U.S. Dist. LEXIS (D.N.M. Dec. 21, 2010)...3, 5 Wilson v. United States, 878 F. Supp (N.D. Cal. 1995)...10 Statutes 42 U.S.C. Section 1973gg U.S.C et seq U.S.C , 2, 4 52 U.S.C La. R.S. 18:18(a)(6)...1, 11 La. R.S. 36:741(B), (C)...12 La. R.S. 36:742(4)...13 La. R.S. 18:421(A)...1 Other Authorities Fed. R. App. P. 35(a)...1 Fed. R. App P. 40(a)(1)...6, 7 v

6 Practitioners Guide to the United States Court of Appeals for the Fifth Circuit (Oct. 2014)...6 vi

7 CERTIFICATE OF INTERESTED PERSONS Case No LUTHER SCOTT, JR., for himself and all other persons similarly situated; LOUISIANA STATE CONFERENCE OF THE NAACP, for themselves and all other persons similarly situated, v. Plaintiffs-Appellees, TOM SCHEDLER, in his official capacity as the Louisiana Secretary of State, Defendant-Appellant. The undersigned counsel of record certifies that the following listed persons and entities as described in the fourth sentence of Fifth Circuit Rule have an interest in the outcome of this case. These representations are made in order that the judges of this court may evaluate possible disqualification or recusal. 1. Tom Schedler, in his official capacity as Louisiana Secretary of State, Appellant 2. Celia R. Cangelosi, Counsel for Appellant 3. Carey T. Jones, Counsel for Appellant 4. Luther Scott, Jr., Appellee 5. Louisiana Conference of the NAACP, Appellee 6. NAACP Legal Defense & Educational Fund, Inc., Counsel for Appellees 7. Sherrilyn Ifill, Counsel for Appellees 8. Janai Nelson, Counsel for Appellees 9. Christina A. Swarns, Counsel for Appellees 10. Ryan P. Haygood, Counsel for Appellees 11. Natasha M. Korgaonkar, Counsel for Appellees 12. Leah C. Aden, Counsel for Appellees vii

8 13. Deuel Ross, Counsel for Appellees 14. Elise C. Boddie, Counsel for Appellees in the District Court and Circuit Court proceedings until May 17, Dale E. Ho, Counsel for Appellees in the District Court and Circuit Court proceedings until April 29, Kristen M. Clarke, Counsel for Appellees in the District Court proceedings until August 5, Johnathan J. Smith, Counsel for Appellees in the Circuit Court proceedings until September Project Vote, Counsel for Appellees 19. Sarah Brannon, Counsel for Appellees 20. Niyati Shah, Counsel for Appellees 21. Michelle Rupp, Counsel for Appellees 22. Brian Mellor, Counsel for Appellees 23. Nicole Kovite Zeitler, Counsel for Appellees in the District Court proceedings until February 6, Ronald L. Wilson, Counsel for Appellees 25. Fried, Frank, Harris, Shriver & Jacobson LLP, Counsel for Appellees 26. Israel David, Counsel for Appellees 27. Michael B. deleeuw, Counsel for Appellees 28. Jesse R. Loffler, Counsel for Appellees 29. David S. Yellin, Counsel for Appellees in the District Court and Circuit Court proceedings until September Erica Sollie, Counsel for Appellees in the District Court proceedings 31. Bruce D. Greenstein, in his official capacity as Secretary of the Louisiana Department of Health and Hospitals, former Defendant in the District Court proceedings 32. Kathy H. Kliebert, in her official capacity as Interim Secretary of the Louisiana Department of Health and Hospitals, Defendant in the District Court proceedings 33. Ruth Johnson, in her official capacity as Secretary of Louisiana Department of Children and Family Services, former Defendant in District Court proceedings 34. Suzy Sonnier, in her official capacity as Secretary of Louisiana Department of Children and Family Services, Defendant in District Court proceedings 35. Louisiana Department of Health and Hospitals, Bureau of Legal Services, Counsel for former Defendant Bruce D. Greenstein and Defendant Kathy H. Kliebert 36. Douglas L. Cade, Counsel for former Defendant Bruce D. Greenstein and Defendant Kathy H. Kliebert viii

9 37. Brandon J. Babineaux, Counsel for former Defendant Bruce D. Greenstein and Defendant Kathy H. Kliebert 38. David L. McCay, Counsel for former Defendant Bruce D. Greenstein and Defendant Kathy H. Kliebert 39. Kimberly L. Humbles, Counsel for former Defendant Bruce D. Greenstein and Defendant Kathy H. Kliebert 40. Rebecca C. Clement, Counsel for former Defendant Bruce D. Greenstein and Defendant Kathy H. Kliebert 41. Stephen R. Russo, Counsel for former Defendant Bruce D. Greenstein and Defendant Kathy H. Kliebert 42. Taylor, Porter, Brooks & Phillips LLP, Counsel for former Defendant Bruce D. Greenstein, Defendant Kathy H. Kliebert, and Defendant Suzy Sonnier 43. Amy C. Lambert, Counsel for former Defendant Bruce D. Greenstein, Defendant Kathy H. Kliebert, and Defendant Suzy Sonnier 44. Harry J. Philips, Jr., Counsel for former Defendant Bruce D. Greenstein, Defendant Kathy H. Kliebert, Defendant and Suzy Sonnier 45. Katia Desrouleaux, Counsel for former Defendant Bruce D. Greenstein, Defendant Kathy H. Kliebert, and Defendant Suzy Sonnier 46. State of Louisiana Department of Children and Family Services, Bureau of General Counsel, Counsel for Defendant Suzy Sonnier iv 47. Amy Colby, Counsel for Defendant Suzy Sonnier 48. Celia M. Williams-Alexander, Counsel for Defendant Suzy Sonnier 49. Eboni M. Townsend, Counsel for Defendant Suzy Sonnier 50. Charles L. Dirks, III, Counsel for Defendant Suzy Sonnier 51. Unites States of America, Interested Party in District Court proceedings 52. U.S. Department of Justice, Civil Rights Division, Counsel for the United States 53. Anna M. Baldwin, Counsel for the United States 54. U.S. Attorney s Office, New Orleans, Counsel for the United States 55. Sandra E. Gutierrez, Counsel for the United States 56. Dēmos, Amicus Curiae in Circuit Court proceedings 57. Lisa J. Danetz, Counsel for Dēmos 58. David Rubino, Counsel for Dēmos 59. Stern, Shapiro, Weissberg, & Garin, LLP, Counsel for Dēmos 60. John Cushman, Counsel for Dēmos Counsel is unaware of any other persons with an interest in this brief. Dated: December 15, 2014 ix

10 Respectfully submitted, s/ Natasha M. Korgaonkar Natasha M. Korgaonkar Counsel for Plaintiffs-Appellees x

11 The panel correctly affirmed the district court s conclusion that Appellant Louisiana Secretary of State (the Secretary or Appellant ), designated as the chief election official by state law, bears the responsibility set forth in Section 10 of the National Voter Registration Act (hereinafter, NVRA, 52 U.S.C et seq.) of ensuring that Louisiana become and remain compliant with the NVRA. 1 Because Appellant has demonstrated neither that en banc review of the panel s decision is required to maintain uniformity of the Court s decisions (in fact, Appellant asks this Court to create a split with sister circuits, where none now exists), nor that the panel s conclusion is of exceptional importance such that altering that conclusion requires the attention of the full Court, en banc review of this conclusion should be denied. See Fed. R. App. P. 35(a). ARGUMENT Appellant s request for en banc review should be denied for two reasons. First, Appellant s request that this Court review and ultimately reverse the panel s unanimous conclusion regarding the scope of Appellant s duties under 52 U.S.C (hereinafter Section 10 ) would create a split with the decisions of 1 La. R.S. 18:421(A) ( The secretary of state is the chief election officer of the state. ); La. R.S. 18:18(a)(6) ( The secretary of state shall... [c]oordinate the responsibilities of this state under the National Voter Registration Act of 1993 (P.L ) as required by 42 U.S.C. Section 1973gg-8. ). 1

12 consistent rulings of the other circuits that have ruled on this issue, 2 a strongly disfavored result. Cf. Alfaro v. Comm r of Internal Revenue, 349 F.3d 225, 229 (5th Cir. 2003) (stating that the Court begin[s] with trepidation in the face of the solid array of other circuits, none that has held to the contrary, and that the Court is always chary to create a circuit split ). Second, the panel s conclusion is a constitutionally valid interpretation of the language and purpose of the NVRA regarding the Secretary s enforcement duties. Appellant s argument to the contrary is wholly without merit and should be rejected. Petition for En Banc Rehearing at 6 (Document No ) [hereinafter Pet. ]. For these reasons, and those set forth below, Appellant s request for en banc review should be denied. I. The Panel Correctly Concluded That The Secretary s Coordination Responsibilities Include Enforcement Of The NVRA The NVRA requires that each state designate a chief election official in Louisiana, the Secretary and that the chief election official be responsible for coordination of State [NVRA] responsibilities. 52 U.S.C The panel properly concluded, in accord with the persuasive authority of circuit courts considering the same question, that coordination includes enforcement power. Panel Opinion at 12 (Document No ) [hereinafter Op. ]. 2 Harkless v. Brunner, 545 F.3d 445 (6th Cir. 2008); United States v. Missouri, 535 F.3d 844 (8th Cir. 2008). 2

13 a. The panel s well-reasoned decision is based on a cohesive reading of the NVRA and established precedent of other Circuits. As each federal court considering this question has previously concluded, the Secretary s Section 10 responsibilities go beyond the mere delegation of NVRA responsibilities to other state agencies. See, e.g., Harkless v. Brunner, 545 F.3d 445, 451 (6th Cir. 2008); United States v. Missouri, 535 F.3d 844, (8th Cir. 2008); United States v. Louisiana, Civ. No JJB, 2011 WL (M.D. La. Dec. 1, 2011); Valdez v. Herrera, Civ. No , 2010 U.S. Dist. LEXIS (D.N.M. Dec. 21, 2010). In each of these decisions, the various courts have looked at the text of Section 10, together with the structure of the NVRA, to determine that the duties of a state s chief election official cannot be, as Appellant argues, to serve as a mere central depository for notices of alleged NVRA violations. Pet. at 11. Instead, as the panel and these courts have correctly concluded, Section 10 s coordination duties contemplate an on-going, active role in ensuring that states and state agencies become and remain compliant with all aspects of the NVRA, not simply a one-time power to implement the NVRA. Op. at 12. The panel s conclusion regarding Section 10 is supported both by a common interpretation of the word coordination, and an understanding of Section 10 in the context of the NVRA as a whole. See Arizona v. Inter Tribal Council of Arizona, Inc., -- U.S. --, 133 S. Ct. 2247, (2013) (stating [w]ords that can 3

14 have more than one meaning are given content... by their surroundings and favoring an interpretation of the statute that is not difficult to reconcile with neighboring provisions of the NVRA. ) (internal citation and quotation marks omitted). 3 To require would-be plaintiffs to provide notice of a state s NVRA violations to the chief election official for no reason other than his being a central depository for such complaints, Pet. at 11, would make no sense in the context of the NVRA s provisions. The purpose of a notice letter is to provide the state with the opportunity to correct its non-compliance without litigation. If the chief election official had no role in ensuring compliance, it would be virtually meaningless for that official to be the sole statutorily-required recipient of such a letter. Appellant s interpretation of Section 10 would lead to a strange result where 3 Appellant also argues at length that coordination must mean something different than enforcement, because the language of the statute differentiates between coordination in 52 U.S.C and enforcement in the following section of the Act, 52 U.S.C Pet. at 8; see also Pet. at 9, 10. As a threshold matter, the Court should not consider this new argument, as Appellant has never raised it prior to this en banc petition. Compare Document Nos with See Franks Inv. Co. LLC v. Union Pacific R. Co., 593 F.3d 404, 409 (5th Cir. 2010) (en banc) (observing that [t]oday is too late to request that the Court consider a new theory raised for the first time en banc). Even if the Court were to consider this new argument, however, Appellant s reasoning is not persuasive, as it relies on a misapprehension of the relevant text. Neither the word enforcement, nor any derivation thereof, even appears in the text of 52 U.S.C Rather than concerning chief enforcement officials scope of responsibilities under the statute, Section entitled Civil enforcement and private right of action instead pertains to Attorney General and private litigation regarding states compliance with the NVRA. Appellant s novel argument, appearing for the first time in his en banc petition, should not be considered and is without merit. 4

15 a litigant alleging violations of a certain agency would be required by the statute to provide notice of those violations not to the violating agency, but instead to an unrelated one (here, the Secretary as chief election official) with no responsibility (according to Appellant s argument) to respond or to contact the violating agency and, indeed, with no responsibility beyond maintaining the correspondence in a file. The more straightforward interpretation of Section 10 is that the Secretary does have a role in resolving violations, which is precisely why he is required to receive notice of them. As the panel reasons, requiring parties to provide such notice to Appellant only makes sense if Schedler has authority to enforce the Act. Op. at 12; see also Harkless, 545 F.3d at 452; Valdez, 2010 U.S. Dist. LEXIS , at *34-35 (same); accord Missouri, 535 F.3d at 850 (Secretary of State may not delegate responsibilities and insulate itself from liability); Louisiana, 2011 WL , at *6 (same). Because the panel s decision is based on a harmonious reading of Section 10 s language with other provisions of the NVRA, and is in accord with other circuits, the Court should decline to grant en banc review of the panel s unanimous conclusion. b. Appellant attempts to negate the panel s holding without offering any logical explanation of his coordination responsibilities. The panel unanimously rejected Appellant s view that the chief election official can merely instruct state agencies on NVRA compliance and then 5

16 disappear from the picture. Op. at 13. Appellant, however, attempts to undermine the panel s holding by now, and only belatedly, conceding that coordination responsibilities are ongoing. Pet. at 14. Indeed, Appellant concedes that coordination includes formulating a plan for implementation, developing forms and procedures for agencies, [and] training and advising other state agencies that are assigned direct responsibilities under the NVRA. Pet. at 9-10; see also Pet. at 14 (conceding that the Secretary is charged to harmonize or facilitate the efforts of state agencies to register voters utilizing the services... provided by those agencies ). It is inappropriate and unpersuasive for Appellant to now concede that he has the responsibilities that the panel held he has, and that the district court found he failed to properly undertake, to manufacture a basis for en banc review. 4 Op. at 13 (holding the NVRA s notice requirement shows that the chief election official s role must be ongoing. Such an ongoing role is at odds with Schedler s 4 Appellant suggests that the basis for the panel s decision (see Op. at 12-13) was incorrect because Schedler has never argued that his responsibility to coordinate efforts among state agencies is not ongoing. Pet. at 14. In effect, Appellant asserts that the panel misconstrued his arguments. The panel did nothing of the sort, for the reasons stated above. However, if Appellant believes that panel misunderstood his position, this is a basis for a panel rehearing rather than a rehearing en banc. Appellees note, however, that Appellant has waived his right to seek a panel rehearing. FED. R. APP. P. 40(a)(1) ( Unless the time is shortened or extended by order or local rule, a petition for panel rehearing may be filed within 14 days after entry of judgment."); Practitioners Guide to the United States Court of Appeals for the Fifth Circuit (Oct. 2014) at 85, available at ( If you are filing both a petition for panel and en banc rehearing, both petitions must be filed within the time limits in FED. R. APP. P. 40(a)(1). You do not get to file a petition for panel rehearing and when that is denied, then get another 14 or 45 days to file a petition for en banc rehearing. ). 6

17 view that the chief election official can merely instruct state agencies on NVRA compliance and then disappear from the picture. ); Findings of Fact and Conclusions of Law at 14, 18 (Dkt. No. 436) (E.D. La. Jan. 23, 2013) (finding, among other things, that the Secretary failed to provide guidance on a contested issue of law and provided no trainings whatsoever for one of the public assistance agencies from the beginning of 2008 to the spring of 2011). Throughout this litigation, the Secretary has repeatedly changed his position on what types of activities and duties fall within coordination. Compare Pet. at 9-10, 12-13, 14; with Original Brief of Appellant at 47 (Document No ) (Apr. 15, 2013) (suggesting Secretary has authority to orchestrate the efforts of the involved agencies, but that Louisiana could choose the method of implementation of those responsibilities and efforts ); id. at 50 (claiming that Louisiana may have a non-delegable duty [to enforce NVRA mandates against agencies], [but] that duty is not by operation of law assigned to the chief election official ); and Reply Brief of Appellant at 17 (Document No ) (June 6, 2013) (noting that the Secretary has never disputed that he is the designated chief election official for Louisiana responsible for coordination of State responsibilities under the [NVRA] ); and Post Trial Memorandum by the Secretary of State at 15 (Dkt. No. 426) (E.D. La. Nov. 19, 2012) (claiming that the Secretary has no supervision or enforcement authority over the other 7

18 agencies ). The Secretary s most recent interpretation of coordination, made in his petition, is manufactured solely for the purpose of seeking en banc hearing, to suggest that the panel erred, and does not support the need for en banc review by this Court. Ultimately, Appellant merely recasts his varied arguments made over the course of this litigation on this issue, but fails to meet the high threshold showing that this Court should grant en banc review or that the panel s conclusion should be overturned. Appellant has not demonstrated that the panel s well-reasoned judgment on this question actually presents the question of exceptional importance that Appellant argues particularly given (i) Appellant s concession in his petition for en banc review that his duties are ongoing, rather than a onetime power to implement the NVRA Op. at 12; and, (ii) the fact that Appellant asks this Court to create the disfavored result of a circuit court split by departing from the reasoned judgments of the only other circuits to have considered this issue. For all of these reasons, the Court should decline to grant en banc review to the panel s conclusion of law. II. The Panel s Decision Falls Squarely Within The Bounds Of The Constitution And Does Not Raise Federalism Concerns The panel s conclusion regarding the Secretary of State s enforcement duties falls well within the bounds of constitutionality, and does not, as Appellant 8

19 contends, give rise either to federalism concerns or to constitutional infirmities. The Secretary s argument that the panel decision upsets the balance of powers provided by the Constitution is a red herring and does not merit en banc review. a. The panel s conclusion is constitutional. Rather than the wholesale rearranging of intrastate structure painted by Appellant, the panel s decision appropriately rejects Appellant s view that aggrieved parties could sue the state agencies... but not the Secretary of State, and instead finds that the NVRA s centralization of responsibility counsels against such buck passing. Op. at 13. Indeed, neither the Appellees, the district court, nor the panel suggest that the chief election official s coordination responsibilities include the power of coercion of conduct through some formal proceeding or threat of sanction. Pet. at 10. Contrary to Appellant s claims that the NVRA interferes with Louisiana s ability to define its constitutional offices, Pet. at 6, Louisiana chose to implement the NVRA by enacting into state law a statute that is entirely co-extensive with the NVRA. Op. at 11 ( State law provides Schedler with authority that is co-extensive with the NVRA. ); see infra at 11. Appellant overstates the breadth of the panel s conclusion, understates the breadth of Louisiana s implementing law, and attempts to insert non-existent federalism concerns into the panel s decision. Moreover, courts have repeatedly upheld the NVRA s constitutionality 9

20 under the Elections Clause, including against federalism and Tenth Amendment arguments. See, e.g., Gonzalez v. Arizona, 677 F.3d 383, (9th Cir. 2012) (en banc) ( Because states have no reserved authority over the domain of federal elections, courts deciding issues raised under the Elections Clause need not be concerned with preserving a delicate balance between competing sovereigns. ); Ass n of Cmty. Orgs. for Reform Now v. Miller, 129 F.3d 833, (6th Cir. 1997); U.S. v. New York, 700 F. Supp. 2d 186, 200 (N.D.N.Y. 2010); Wilson v. United States, 878 F. Supp. 1324, (N.D. Cal. 1995); Ass n of Cmty. Orgs. For Reform Now v. Edgar, 880 F. Supp. 1215, (N.D. Ill. 1995) ( By definition the Tenth Amendment... does not apply to powers vested in Congress by the Constitution. ); Condon v. Reno, 913 F. Supp. 946, (D.S.C. 1995); Ass n of Cmty. Orgs. for Reform Now v. Ridge, Nos , , 2000 WL 31808, *6-8 (E.D. Pa. March 30, 1995). This area of law has been well-settled since the NVRA was enacted. 5 5 Additionally, the Secretary cites to two cases for the principle that is generally known as the Plain Statement Rule. Pet. at 6. Neither case is applicable here. Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985), says that Congress must be unmistakably clear when abrogating the States constitutionally secured immunity from suit in federal court but the Eleventh Amendment is not at issue in this case. Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947), concerns Congressional legislation in a field historic police powers of the States which the States have traditionally occupied. Such considerations are not at issue under the NVRA, or indeed any statute issued under Congress Elections Clause authority, because the Plain Statement Rule rests on an assumption about congressional intent: that Congress does not exercise lightly the extraordinary power to legislate in areas traditionally regulated by the States. Arizona v. Inter Tribal Council of Arizona, 133 S. Ct. 2247, 2256 (2013). However, that assumption does not hold when Congress 10

21 b. Louisiana s implementing state law does not constrain Appellant s ability to discharge his Section 10 responsibilities. Appellant s further argument that Louisiana s implementing state law prevents the Secretary of State from discharging all aspects of his coordination duties is without merit. The language of Louisiana s implementing state law is not narrow and specific, as Appellant argues, but is instead very broad. Pet. at 12. The implementing law states that [t]he secretary of state shall... [c]oordinate the responsibilities of this state under the National Voter Registration Act of as required by 42 U.S.C. Section 1973gg-8. La. R.S. 18:18(a)(6). This language does not enumerate[] responsibilities, Pet. at 12, and instead is co-extensive with the NVRA. Op. at 11. Apart from the general language of Louisiana s implementing law s conferring upon the Secretary of State the authority to coordinate those duties encompassed by the NVRA, Louisiana state law provides the Secretary with the power to discharge his various responsibilities. See La. R.S. 36:741(B), (C) ( The secretary of state shall... have the responsibility for the administration, control, and operation of the functions, programs, and affairs of the department as acts under the Elections Clause. Id. Because the power the Elections Clause confers is none other than the power to pre-empt, the reasonable assumption is that the statutory text accurately communicates the scope of Congress pre-emptive intent. Moreover, the federalism concerns underlying the [Plain Statement Rule presumption] are somewhat weaker [in the NVRA context]. Unlike the States historic police powers, the States role in regulating congressional elections while weighty and worthy of respect has always existed subject to the express qualification that it terminates according to federal law. Id. at

22 provided by law. The Department of State shall be responsible for performing the functions of the secretary of state as provided by law, including those functions of the commissioner of elections transferred to the Department of State and to the secretary of state. ). The Secretary s argument that this case is distinguishable from Harkless is meritless. Appellant argues that while Ohio s NVRA-implementing law actually did empower the Ohio Secretary of State to compel compliance, Louisiana s implementing law does not. Pet. at 13. This argument is ineffective. First, the Sixth Circuit did not rely on the Ohio law to conclude that enforcement is encompassed by coordination in the NVRA context, but instead stated that even if the coordination were not clear, the implementing state law makes it abundantly clear that the Secretary is responsible for the implementation and enforcement of Section 7. Harkless at 453 (emphasis added). Rather than serving as the only basis for the Harkless court s conclusion, as Appellant argues, Ohio state law served as an additional and independent basis for that Court s conclusion. Second, Appellant is incorrect in arguing that Ohio s implementing law empowered the Ohio Secretary of State to compel NVRA compliance any more than the Louisiana implementing law does. Pet. at 13. That the Ohio implementing law enumerates certain specific methods of enforcement for voting laws does 12

23 nothing to negate the broader powers enjoyed by Louisiana s Secretary under Louisiana state law. See, e.g., La. R.S. 36:742(4) ( Organize, plan, supervise, direct, administer, execute and be responsible for the functions and programs vested in the department. ). Finally, even if the implementing state law did undermine the scope of Schedler s ability to exercise power to coordinate the State s NVRA compliance, this still would not be an impediment to Appellant s compliance with the NVRA, or a safe harbor for NVRA coordination violations; instead, such a conflicting Louisiana law would be preempted by federal law. See Hillsborough Cnty. v. Automated Med. Labs., Inc., 471 U.S. 707, 713 (1985) (holding that a federal statute need not explicitly provide that conflicting state laws are preempted). If states NVRA-implementing laws could undermine the full scope of duties imposed on a chief election official, then states could exempt themselves from the NVRA altogether by crafting implementing laws which fundamentally interfere with the provisions of the NVRA a clearly improper result. Compare Int l Paper Co. v. Oulette, 479 U.S. 481 (1987) (in Clean Water Act case, conflict [between state law and federal law] will be found when the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. ). 13

24 CONCLUSION For these reasons, Plaintiffs-Appellees respectfully request that this Court deny en banc review of the panel s ruling regarding the scope of coordination responsibilities of the Secretary, as chief election official, under Section 10 of the NVRA. Respectfully submitted, s/ Natasha M. Korgaonkar NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. Sherrilyn Ifill Director-Counsel Janai Nelson Christina A. Swarns Ryan P. Haygood Natasha M. Korgaonkar Leah C. Aden Deuel Ross 40 Rector Street, Floor 5 New York, NY Telephone: (212) Facsimile: (212) nkorgaonkar@naacpldf.org PROJECT VOTE Sarah Brannon* Niyati Shah** Michelle Rupp*** th Street NW, Suite 250 Washington, DC Telephone: (202) Facsimile: (877) *Authorized to practice only in Maryland. Practice in D.C. limited to cases in federal court. **Admitted in New Jersey & New York. Practice in D.C. limited to cases in federal court. *** Authorized to practice only in Virginia. Practice in D.C. limited to cases in federal court. Ronald L. Wilson 701 Poydras Street, Suite 4100 New Orleans, LA Telephone: (504) Facsimile: (504) FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP Israel David Jesse Ryan Loffler One New York Plaza New York, NY Telephone: (212) Facsimile: (212) Counsel for Plaintiffs-Appellees 14

25 CERTIFICATE OF SERVICE Pursuant to Fifth Circuit Rule , I hereby certify that on December 15, 2014, an electronic copy of the foregoing Plaintiffs-Appellees Opposition to Appellant s Petition for Hearing En Banc was filed with the Clerk of Court and served on the following counsel through the Court s electronic filing system. ADDITIONAL CERTIFICATIONS Pursuant to Fifth Circuit Rules and , I hereby certify that required privacy redactions have been made, that the electronic submission is an exact copy of the paper document, and that the document has been scanned for viruses with the most recent version of a commercial virus scanning program and is free of viruses. Celia Rhea Cangelosi 918 Government Street, Suite 101 Baton Rouge, LA Tel: (225) Fax: (225) celiacan@bellsouth.net Carey Thompson Jones 1234 Del Este Avenue, Suite 803 Denham Springs, LA Tel: (225) Fax: (225) tjones@tomjoneslaw.com Counsel for Defendant-Appellant s/ Natasha M. Korgaonkar Counsel for Plaintiffs-Appellees