Case 2:11-cv JTM-JCW Document 97-5 Filed 11/28/11 Page 1 of 15 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

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1 Case 2:11-cv JTM-JCW Document 97-5 Filed 11/28/11 Page 1 of 15 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA ROY FERRAND, LUTHER SCOTT, JR., And LOUISIANA STATE CONFERENCE OF THE NAACP, for themselves and all other persons similarly situated, CIVIL ACTION NO. 2:11-cv LMA-JCW Plaintiffs, v. TOM SCHEDLER in his official capacity As the Louisiana Secretary of State, RUTH JOHNSON, in her official capacity as Secretary of the Louisiana Department of Children & Family Services, and BRUCE D. GREENSTEIN, in his official capacity As Secretary of the Louisiana Department Of Health & Hospitals, Defendants, MEMORANDUM IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT MAY IT PLEASE THE COURT: Ruth Johnson, in her official capacity as Secretary of the Louisiana Department of Children and Family Services ( DCFS ), Defendant in the above-captioned matter, files this Memorandum in Support of her Motion for Partial Summary Judgment. The Motion for Partial Summary Judgment seeks a ruling from this Court that the National Voter Registration Act (ANVRA@) 1 applies solely to applications made in person by applicants for certain DCFS services. Because the Act applies solely to such in person transactions, Defendant Johnson is entitled to judgment as a matter of law with respect to Plaintiffs claim that any failure by Johnson to offer voter registration to persons who apply for those certain services online, by 1 42 U.S.C. 1973gg et seq. 1

2 Case 2:11-cv JTM-JCW Document 97-5 Filed 11/28/11 Page 2 of 15 telephone, or by mail constitutes a violation of the NVRA. Moreover summary judgment with respect to this issue is appropriate because there is no genuine dispute as to whether Plaintiffs case is based in part on the theory that the NVRA applies to online, telephone and mail applications for public assistance and disability services. FACTUAL BACKGROUND In a letter dated January 12, 2011, counsel for the Plaintiffs notified Ruth Johnson, Secretary of the Louisiana Department of Children and Family Services that they believed DCFS was not in compliance with the Act. 2 The letter noted that the Act provides for a private right of action in the event that agencies fail to comply with its provisions and urged Secretary Johnson to take steps to bring the Department of Children and Family Services into compliance. The letter concluded by requesting a response, including a timeline and plan for achieving and sustaining compliance with the NVRA at Louisiana public assistance agencies. (See Exhibit 1 of R. Doc. 1). Secretary Johnson responded to the letter from Plaintiffs counsel in a letter dated February 23, That letter, signed by DCFS Executive Counsel Amy Colby, informed Plaintiffs counsel that DCFS had reviewed its policies and procedures with respect to its obligations under the Act; that steps had been taken to modernize its business practices such that voter registration is included in its on-line application; that a voter registration link is available on the DCFS website; that voter registration is included on its paper applications; and that application processing staff had been trained to provide voter registration information and services to applicants during the processing of applications. Notwithstanding DCFS s attempt to investigate and act upon the Plaintiffs allegations of failure to comply with the Act, the 2 Copies of the letter were also sent to the other defendants in this matter. 2

3 Case 2:11-cv JTM-JCW Document 97-5 Filed 11/28/11 Page 3 of 15 Plaintiffs filed suit in this Court on April 19, 2011, seeking declaratory and injunctive relief and costs, including attorney s fees. Subsequently, all three Defendants filed motions to dismiss on June 2, Those motions were granted in part and dismissed in part in a ruling dated July 19, Since that date, the parties have exchanged initial disclosures pursuant to Fed. R. Civ. P. 26(a), and Plaintiffs have served two sets of written discovery requests. From the outset of the action, the parties engaged in settlement negotiations. In an order dated October 20, 2011, District Judge Lance M. Africk transferred the case to District Judge Jane Triche Milazzo. 5 In an order dated October 21, 2011, Judge Milazzo set the trial on this matter for April 16, Defendants Schedler and Greenstein have filed a Partial Motion for Summary Judgment on this same issue, which is set to be heard on December 21, LAW AND ARGUMENT Fed. R. Civ. P. 56(a) provides that a court shall grant a motion for summary judgment Aif the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.@ Rule 56 also allows a court to grant summary judgment on part of a claim or defense. Id. One of the principal purposes of the summary judgment rule is Ato isolate and dispose of factually unsupported claims or defenses.@ Celotex Corp. v. Catrett, 477 U.S. 317, , 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986). But that is not the only purpose of the rule. In fact, in a case where, as here, the unresolved issues are primarily legal rather than 3 R. Docs. 25, 26, and R. Doc R. Doc R. Doc

4 Case 2:11-cv JTM-JCW Document 97-5 Filed 11/28/11 Page 4 of 15 factual, Asummary judgment is particularly appropriate.@ Crain v. Board of Police Commissioners of the Metropolitan Police Department of the City of St. Louis, 920 F.2d 1402, (8th Cir. 1991), citing Lomar Wholesale Grocery v. Dieter=s Gourmet Foods, 824 F.2d 582, 585 (8th Cir. 1987), cert. denied, 484 U.S. 1010, 108 S.Ct. 707, 98 L.Ed. 2d 658 (1988). A. There Is No Genuine Dispute as to Any Material Fact. It is undisputed in this matter that Plaintiffs Ferrand, Scott, and NAACP believe that the NVRA applies not only to applications for public assistance and disability services that are made in person, but also to applications for such services that are made online, by telephone, and by mail, as alleged in their complaint (R. Doc. 1). Plaintiffs thus argue that any failure by Defendant Johnson to offer voter registration to persons who apply for such services online, by telephone, or by mail constitutes a violation of the NVRA. Defendant Johnson refers the Court to the following documents as proof that Plaintiffs intend to argue to this Court that the NVRA applies not only to applications for public assistance and disability services that are made in person, but also to applications for such services that are made online, by telephone, and by mail: 1. Plaintiffs First Requests for Admissions to Defendant Johnson. Plaintiffs Ferrand, Scott, and NAACP assert that the NVRA applies to applications for public assistance and disability services which are made by mail, telephone and online. Their position with respect to telephone, mail and online applications is clear from their First Set of Request for Admissions to Defendant Johnson. For example, Request No. 26 requested that Johnson admit that prior to January 12, 2011, DCFS did not enforce or require its employees to comply with any policy, rule or guideline that required DCFS offices to provide voter 4

5 Case 2:11-cv JTM-JCW Document 97-5 Filed 11/28/11 Page 5 of 15 registration application forms or voter preference forms to person who applied for benefits, recertified their eligibility, and/or changed their address with respect to public assistance through online transactions with DCFS. Similarly, Request No. 27 asked that Johnson admit that DCFS does not enforce or require its employees to comply with any policy, rule or guideline that requires DCFS offices to provide voter registration application forms or voter preference forms to persons who apply for benefits, recertify their eligibility, and/or change their address with respect to public benefits assistance through online transactions with DCFS. (Plaintiffs First Set of Requests for Admissions to Defendant Johnson, Request Nos ) (Emphasis added). With respect to telephone applications, Request No. 28 requested that Johnson admit that prior to January 12, 2011, DCFS did not enforce or require its employees to comply with any policy, rule or guideline that required DCFS offices to provide voter registration application forms or voter preference forms to person who applied for benefits, recertified their eligibility, and/or changed their address with respect to public assistance through telephone communications with DCFS. Also, Request No. 29 asked that Johnson admit that DCFS does not enforce or require its employees to comply with any policy, rule or guideline that requires DCFS offices to provide voter registration application forms or voter preference forms to persons who apply for benefits, recertify their eligibility, and/or change their address with respect to public benefits assistance through telephone communications with DCFS. (Plaintiffs First Set of Requests for Admissions to Defendant Johnson, Request Nos ) (Emphasis added). Lastly, with respect to mail applications, Request No. 30 requested that Johnson admit that prior to January 12, 2011, DCFS did not enforce or require its employees to comply with any policy, rule or guideline that required DCFS offices to provide voter registration application 5

6 Case 2:11-cv JTM-JCW Document 97-5 Filed 11/28/11 Page 6 of 15 forms or voter preference forms to person who applied for benefits, recertified their eligibility, and/or changed their address with respect to public assistance through mail transactions with DCFS. Also, Request No. 31 asked that Johnson admit that DCFS does not enforce or require its employees to comply with any policy, rule or guideline that requires DCFS offices to provide voter registration application forms or voter preference forms to persons who apply for benefits, recertify their eligibility, and/or change their address with respect to public benefits assistance through mail transactions with DCFS. (Plaintiffs First Set of Requests for Admissions to Defendant Johnson, Request Nos ) (Emphasis added). Copies of the relevant pages from Plaintiffs First Set of Request for Admissions to Defendant Johnson are attached hereto as Defendant s Exhibit A. It is clear from the aforementioned Requests for Admissions that Plaintiffs Ferrand, Scott, and NAACP take the position that the NVRA applies not only to applications for public assistance and disability services that are made in person, but also to applications for such services that are made online, by telephone, and by mail. If they did not take the position that the NVRA applies to applications for such services that are made online, by telephone, and by mail they would not have sought the admissions referred to above. 2. Plaintiffs Citation to Department of Justice Civil Rights Division NVRA FAQs. In a footnote on page 24 of their Complaint, Plaintiffs cite a document entitled The National Voter Registration Act of 1993 (NVRA): Questions and Answers. Their reference to that document implies that they consider it authoritative with regard to the Act. The document, which is neither a statute enacted by Congress nor a properly promulgated regulation, may be found online at A copy of the document is attached as Defendant s Exhibit B. The document is in the form of questions and answers, 6

7 Case 2:11-cv JTM-JCW Document 97-5 Filed 11/28/11 Page 7 of 15 which Aare designed to provide information and guidance to state and local officials as well as the general public concerning the provisions of the NVRA and its interaction with the other statutes enforced by the Department.@ (Defendant s Exhibit B, p. 1). Question 24 reads as follows: Do the voter registration requirements of Section 7 of the NVRA apply to all application, renewal, recertification and change of address transactions with designated offices? Yes. The NVRA requires that voter registration opportunities be provided with respect to all application, renewal, recertification and change of address transactions regarding service and assistance with Section 7 offices. Many Section 7 designated agencies/offices routinely provide services/assistance such as application for, or renewal of, services or change-of-address notification through the internet, by telephone, or by mail. States should ensure the availability of voter-registration opportunities to individuals using such remote service/assistance opportunities from designated agencies. Thus, for all such internet transactions, States should advise of the opportunity to register to vote, and should provide some online capability to download or request a voter-registration form. For phone transactions, designated-agency personnel should advise applicants of the opportunity to register to vote and to request a voter registration from. Materials sent by mail to individuals completing phone or internet transactions (such a statements confirming a phone transaction, or renewal or change-of address forms) should contain a voter-registration form. (Defendant s Exhibit B, pp. 9-10) (Emphasis added). Plaintiffs reference to the document as authoritative makes it clear that they share the view stated therein that the NVRA applies not only to applications for services made in person, but also to applications made online, by telephone, and by mail. It is thus clear from the above that there is no genuine dispute as to any material fact with respect to Plaintiffs intention to treat any failures by Defendant Johnson to offer voter registration applications for public assistance and disability services that are made online, by telephone, or by mail as violations of the NVRA. Because there is no such dispute as to that fact, 7

8 Case 2:11-cv JTM-JCW Document 97-5 Filed 11/28/11 Page 8 of 15 the matter is ripe for partial summary judgment on the legal question of whether the NVRA applies not only to applications for services made in person, but also to applications made online, by telephone, or by mail. B. The National Voter Registration Act of The United States Congress enacted the National Voter Registration Act (ANVRA@) in The Act is codified at 42 U.S.C. ' 1973gg et seq. The purposes of the Act were (1) to establish procedures that would increase the number of eligible citizens who register to vote in elections for Federal office; (2) to make it possible for Federal, State, and local governments to implement the Act in a manner that would enhance the participation of eligible citizens as voters in elections for Federal office; (3) to protect the integrity of the electoral process; and (4) to ensure that accurate and current voter registration rolls are maintained. 42 U.S.C. ' 1973gg(b). The Act requires each State to designate as voter registration agencies (A) all offices in the State that provide public assistance; and (B) all offices in the State that provide State-funded programs primarily engaged in providing services to persons with disabilities. 42 U.S.C. ' 1973gg-5(a)(1)-(2). The Act further requires that all such offices in the State designated as voter registration agencies distribute voter registration application forms for voting in federal elections, assist applicants in completing them, accept completed voter registration applications, and transmit those applications to the appropriate state election official in a timely manner. 42 U.S.C. ' 1973gg-5(a)(2)-(4), (d). The Act further requires that all such offices in the State designated as voter registration agencies distribute a voter registration application form with each application for public assistance, and with each recertification, renewal, or change of address form relating to such assistance. 42 U.S.C. ' 1973gg-5(a)(6). Finally, the Act requires that all such offices in the State designated as voter registration agencies provide a form that asks each 8

9 Case 2:11-cv JTM-JCW Document 97-5 Filed 11/28/11 Page 9 of 15 client whether he or she is registered at his or her current address and if not, whether the applicant wishes to apply to register to vote at the office in the course of his or her visit. 42 U.S.C. ' 1973gg-5(a)(6)(B). The Louisiana Department of Children and Family Services is an office in Louisiana that provides public assistance and State-funded programs primarily engaged in working to keep children safe, helping individuals and families become self-sufficient, and providing safe refuge during disasters. Public assistance is provided through various programs, including but not limited to the Supplemental Nutrition Assistance Program (SNAP), the Louisiana Combined Application Project (LaCAP), the Family Independence Temporary Assistance Program (FITAP), the Child Care Assistance Program (CCAP) and the Kinship Care Subsidy Program (KCSP). DCFS administers the aforementioned State and federally funded programs to its clients through various avenues, providing services to persons at DCFS offices, via the internet, over the telephone and at numerous community partner sites located throughout the state. Section 1973gg-2 of the Act reads, in pertinent part, as follows: (a) In general Except as provided in subsection (b) of this section, notwithstanding any other Federal or State law, in addition to any other method of voter registration provided for under State law, each State shall establish procedures to register to vote in elections for Federal office B (1) by application made simultaneously with an application for a motor vehicle driver=s license pursuant to section 1973gg-3 of this title; (2) by mail application pursuant to section 1973gg-4 of this title; and (3) by application in person B (A) at the appropriate registration site designated with respect to the residence of the applicant in accordance with State law; and 9

10 Case 2:11-cv JTM-JCW Document 97-5 Filed 11/28/11 Page 10 of 15 (B) at a Federal, State, or nongovernmental office designated under section 1973gg-5 of this title. 42 U.S.C. ' 1973gg-2(a) (Emphasis added). Section 1973gg-5 of the Act reads, in pertinent part, as follows: (a) Designation (1) Each State shall designate agencies for the registration of voters in elections for Federal office. (2) Each State shall designate as voter registration agencies B (A) (B) all offices in the State that provide public assistance; and all offices in the State that provide State-funded programs primarily engaged in providing services to persons with disabilities. 42 U.S.C. ' 1973gg-5(a). 1. Application of the NVRA to Defendant Johnson. Section 1973gg-2 is thus clear that it requires a state to offer voter registration in three ways: first, it must provide an opportunity for voter registration during application for a motor vehicle driver=s license; second, it must provide an opportunity for citizens to register to vote by mail; and third, it must provide for registration in person, at either an office of the registrar of voters or at a Federal, State, or nongovernmental office designated under section 1973gg-5 of the Act. Section 1973gg-5 explains that the Federal, State, or nongovernmental offices described in ' 1973gg-2(a)(3)(B) are those that provide public assistance and those that provide State-funded programs primarily engaged in providing services to person with disabilities. Read together sections 1973gg-2 and 1973gg-5 clearly state that the only way to register to vote at a state office that provides public assistance or disability services is in person. The duty to provide for voter 10

11 Case 2:11-cv JTM-JCW Document 97-5 Filed 11/28/11 Page 11 of 15 registration by mail described in ' 1973gg-2(a)(2) is not assigned to state offices, which provide public assistance or disability services, because the statute extends the opportunity to register to vote by mail to all citizens of the state without exception. That is, one need not be eligible for public assistance or disability services to register to vote by mail. (Emphasis added). DCFS is an office that provides public assistance and provides State-funded programs primarily engaged in working to keep children safe, helping individuals and families become self-sufficient, and providing safe refuge during disasters. Accordingly, these offices are required by ' 1973gg-2(a)(3)(B) to offer voter registration to persons who apply in person for such services. But there is no statutory provision of the NVRA that requires DCFS to offer voter registration to persons who apply for public assistance or disability services in some way other than in person. Consequently, any alleged failure by Defendant Johnson to offer voter registration to persons who apply for public assistance or disability services other than in person cannot constitute a violation of the NVRA. (Emphasis added). C. Defendant Johnson is Entitled to Judgment as a Matter of Law. The single issue before the Court in this Motion for Partial Summary Judgment is a straightforward question of statutory construction. The question is simply whether the NVRA applies to any applications for public assistance and disability services beyond those applications made in person, which Defendant Johnson vehemently contends the Act does not. Therefore, Plaintiffs Ferrand, Scott, and NAACP should be prohibited from offering evidence that seeks to persuade this Court that Defendant Johnson has violated the NVRA by failing to offer voter registration to citizens who have applied for public assistance or disability services online, by telephone, or by mail. Accordingly, if the statute applies solely to applications for public assistance or disability services made in person, then any failure by Defendant Johnson to offer 11

12 Case 2:11-cv JTM-JCW Document 97-5 Filed 11/28/11 Page 12 of 15 voter registration to citizens who apply for such services online, by telephone, or by mail does not constitute a violation of the NVRA. It is axiomatic that when the language of a statute is clear and unambiguous, a court must Agive effect to the unambiguously expressed intent of Congress.@ Board of Governors of the Federal Reserve System v. Dimension Financial Corporation, 474 U.S. 361, 368, 106 S.Ct. 681, 685, 88 L.Ed. 2d 691 (1986) quoting Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, , 104 S.Ct. 2778, , 81 L.Ed. 2d 694 (1984). Thus A[w]hen courts interpret statutes, the initial inquiry is the language of the statute itself.@ Hightower v. Texas Hospital Association, 65 F.3d 443, 448 (5th Cir. 1995) citing United States v. James, 478 U.S. 597, 604, 106 S.Ct. 3116, 3120, 92 L.Ed. 2d 483 (1986). That initial inquiry seeks to determine Athe plain meaning of a statute.@ Id. AOnly if the language is unclear do [courts] turn to the legislative history.@ Hightower, supra, citing Toibb v. Radloff, 501 U.S. 157, 162, 111 S.Ct. 2197, 2200, 115 L.Ed. 2d 145 (1991). In the matter before this Court, the NVRA provides that offices in the state that provide public assistance and State-funded programs primarily engaged in providing services to persons with disabilities must offer voter registration to persons who apply for those services in person. Because the statute clearly and unambiguously says Ain person,@ and since the plain meaning of that expression is beyond dispute, this Court is obliged by Chevron U.S.A. and its progeny to apply the statute as written. (Emphasis added). It is equally clear from the jurisprudence that the NVRA applies solely to applications for public assistance and disability services which are made in person. The United States Court of Appeals for the Fourth Circuit noted in this regard that A[s]pecifically, states must (1) include a voter registration application as part of the application or renewal form for a motor vehicle 12

13 Case 2:11-cv JTM-JCW Document 97-5 Filed 11/28/11 Page 13 of 15 driver=s license, (2) allow mail application for voter registration, and (3) designate various offices as >voter registration agencies= where application for registration may be made in National Coalition for Students with Disabilities Education and Legal Defense Fund v. Allen, 152 F.3d 283, 285 (4th Cir. 1998) (Emphasis added). Similarly, the United States Court of Appeals for the Eleventh Circuit stated that A[t]he NVRA requires the states to accept voter registration forms in three ways beyond those through which the states voluntarily elect to accept them: registration by mail, registration in person at various official locations (so-called >registration places=), and registration in conjunction with driver Charles H. Wesley Education Foundation, Inc. v. Cox, 408 F.3d 1349, 1352 (11th Cir. 2005) (Emphasis added). Another canon of statutory construction that applies in this matter is expressio unius est exclusio alterius. Roughly translated, this phrase means that Athe expression of one thing is the exclusion of other United States v. Hernandez-Ferrer, 599 F.3d 63, 67 (1st Cir. 2010). Thus, if a statute provides for a specific kind of application for public assistance or disability services, other ways of applying for such services are excluded and cannot be applied. Accordingly, in the case at hand, the statute provides for a specific method by which a person may apply for public assistance or disability services and register to vote at the same time B by application in person. Because the statute specifically provides for in person application, it excludes other kinds of applications, including online, by telephone, or by mail. (Emphasis added). For all these reasons, this Court should declare that, with respect to Defendant Johnson, the NVRA applies solely to applications for public assistance and disability services made in person. Because the NVRA only applies to such in person applications for public assistance 13

14 Case 2:11-cv JTM-JCW Document 97-5 Filed 11/28/11 Page 14 of 15 and disability services, Defendant Johnson is not required by the Act to offer voter registration to persons who apply for such services online, by telephone, or by mail. Consequently, any alleged failure by Defendant Johnson to offer voter registration to persons who apply for such services online, by telephone, or by mail should not be deemed to be a violation of the NVRA. CONCLUSION Because there is no genuine dispute as to any material fact with respect to Plaintiffs intention to argue to this Court that the NVRA requires Defendant Johnson to offer voter registration to persons who apply for public assistance and disability services online, by telephone, and by mail, this matter is ripe for partial summary judgment on that legal issue alone. Moreover, because the NVRA expressly limits its application to applications for public assistance and disability services that are made in person, Defendant Johnson is entitled to judgment as a matter of law on that issue. Accordingly, this Court should grant the Motion for Partial Summary Judgment filed on behalf of Defendant Johnson. RESPECTFULLY SUBMITTED: /s/ Eboni M. Townsend Eboni M. Townsend, Bar Roll Amy K. Colby, Bar Roll Celia M. Alexander, Bar Roll Bureau of General Counsel Department of Children & Family Services 627 N. 4 th Street, Fourth Floor (70802) Post Office Box 1887 Baton Rouge, Louisiana Telephone: (225) Facsimile: (225) Attorneys for Ruth Johnson, in her official capacity as Secretary of the Louisiana Department of Children & Family Services 14

15 Case 2:11-cv JTM-JCW Document 97-5 Filed 11/28/11 Page 15 of 15 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 28 th day of November, 2011, a true and correct copy of the foregoing Memorandum in Support of Motion for Partial Summary Judgment was filed electronically with the Clerk of Court using the CM/ECF system. Notice of this filing will be sent by operation of the Court=s electronic filing system to the following: John J. Gaupp Assistant United States Attorney 777 Florida Street, Suite 208 Baton Rouge, LA john.gaupp@usdoj.gov T. Christian Herren, Jr. Meredith Bell-Platts Bradley E. Heard, Trial Attorney Anna M. Baldwin Justin Weinstein-Tull Attorneys, Voting Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C Bradley.Heard@usdoj.gov Douglas L. Cade Stephen R. Russo, Trial Attorney Kimberly L. Humbles David McCay Louisiana Department of Health & Hospitals Bienville Building 628 North Fourth Street Post Office Box 3836 Baton Rouge, Louisiana dcade@la.gov Celia R. Cangelosi Government Street, Suite 101 Baton Rouge, LA celiacan@bellsouth.net Carey T. Jones 8115 Vincent Road P.O. Box 700 Denham Springs, LA tjones@tomjoneslaw.com William P. Bryan, III Assistant Attorney General Louisiana Department of Justice 1885 North Third Street Baton Rouge, Louisiana bryanb@ag.state.la.us Baton Rouge, Louisiana, this 28 th day of November, /s/ Eboni M. Townsend EBONI M. TOWNSEND 15