Case 1:12-cv CKK-BMK-JDB Document 176 Filed 08/16/12 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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1 Case 1:12-cv CKK-BMK-JDB Document 176 Filed 08/16/12 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STATE OF SOUTH CAROLINA, v. Plaintiff, UNITED STATES OF AMERICA, and ERIC HIMPTON HOLDER, JR., in his official capacity as Attorney General of the United States, Civil Action No. 1:12-CV-203-CKK-BMK-JDB (Three Judge Court) Defendants, and JAMES DUBOSE, et al., Defendant-Intervenors. SUPPLEMENTAL MEMORANDUM IN SUPPORT OF THE UNITED STATES MOTION IN LIMINE OR, IN THE ALTERNATIVE, TO REOPEN DISCOVERY AND CONTINUE THE TRIAL Pursuant to the Court s Minute Order of August 16, 2012, Defendants United States of America and Eric H. Holder, Jr. (collectively, the United States ) respectfully file this supplemental memorandum in support of their motion in limine or, in the alternative, to reopen discovery and continue the trial in this matter (ECF No. 172). The Court asked the United States (and Defendant-Intervenors, if they so chose) to outlin[e] precisely what additional discovery they would seek in light of South Carolina s August 14, 2012 production, and what effect that production may have on specific expert opinions. Min. Ord., Aug. 16, As outlined in the United States initial memorandum, South Carolina produced and intends to use at trial several newly-created and never-before disclosed documents from the State Election Commission that purport to explain how the State plans to implement Act R54, should it 1

2 Case 1:12-cv CKK-BMK-JDB Document 176 Filed 08/16/12 Page 2 of 5 be precleared. These procedures, like the so-called final procedures filed with this Court and submitted to the Attorney General on April 30, do not appear to have been formally considered or adopted by the State Election Commission, nor formally promulgated in accordance with the South Carolina Administrative Procedure Act. The State has also not submitted any of these items to the Attorney General for administrative reconsideration under Section 5, nor has it formally sought to amend its Complaint or otherwise place them before this Court for consideration in this Section 5 declaratory judgment action. These new procedures appear to undermine sworn testimony from at least two state election administrators Marci Andino and Chris Whitmire as to their plans for implementing Act R54. The State also produced a series of communications relating to potential sources of funding for implementing the free photo voter registration ID card contemplated in 4 of Act R54. As of the close of discovery, the State Election Commission had not requested and the General Assembly had not appropriated any funds for the fiscal year that could be used to implement the establishment of that system. The funds that had been appropriated for this purpose in the fiscal year had not been used (e.g., to purchase the necessary cameras and printers required to create these new ID cards), had reverted to the State Treasury, and were no longer available for use by the SEC. The Rule 30(b)(6) deposition of the State Budget and Control Board confirmed this information. Now, according to the new documents produced by the State, the SEC and the State Budget Office have apparently arranged for some amount of funding to be made available for implementation of Act R54 through use of carry-forward procedures and provisos that have no apparent connection to photo voter ID in general or Act R54 in particular. These funding arrangements appear to call into question several provisions of South Carolina law relating to appropriations, and may well indicate the State s adoption of 2

3 Case 1:12-cv CKK-BMK-JDB Document 176 Filed 08/16/12 Page 3 of 5 irregular procedures and of the State s procedural and substantive deviations in connection with Act R54 all of which are relevant factors of analysis of discriminatory purpose under Arlington Heights. Moreover, as Defendant-Intervenors rightly pointed out in their initial response in support of the United States motion (ECF No. 174), the documents produced by the State appear to be only selected documents relating to the subject matter at hand. Without doubt, there are likely to be other communications within and outside of the State Election Commission about these new procedures and these funding questions. All of these new documents appear to be tailored to address specific flaws in the State s case identified during discovery. The United States is entitled to review all relevant documents relating to funding and implementation of Act R54 (and other topics of the State s recent production), not just the ones the State created after the close of discovery which the State believes will put them in a better position in this litigation. One of the United States' experts, Dr. Theodore S. Arrington, who is both a political scientist and a former elections official, provided opinions as to whether the implementation procedures developed with respect to Act R54 would be sufficient to remediate the discriminatory burdens imposed by the strict photo ID requirement contained in the law. To the extent the State now posits new information and new procedures, Dr. Arrington would need to review both the newly produced material, and any additional materials on the same topic which exist but which South Carolina has not produced, in order to offer his opinions in light of the actual and complete record and evaluate whether his opinions are in any way changed by the recent developments. This would necessitate preparing of a supplemental expert report, which the State would then need to review in advance of a possible follow-up expert deposition. 3

4 Case 1:12-cv CKK-BMK-JDB Document 176 Filed 08/16/12 Page 4 of 5 Likewise, the State s expert, Dr. M.V. Trey Hood, opined extensively on how the State s implementation of supposedly ameliorative provisions of Act R54 would effectively negate any discriminatory impact of the law. Given the State s new procedures, Dr. Hood may need to reconsider his expert opinions, prepare a supplemental report, sit for a follow-up deposition to the extent, if any, these documents impact his opinion. In sum, the United States believes that the following additional discovery would be required in light of South Carolina s latest last-minute, out-of-time production: Fact discovery would need to be reopened, and South Carolina would need to be ordered (once again) to produce all relevant information not previously produced in response to the United States and Defendant-Intervenors discovery requests specifically including but not limited to issues relating to funding and implementation of Act R54 through the date of production, with a continuing supplementation obligation through the close of the newly-defined discovery period. To the extent the State contends certain information is privileged, it would need to identify that information on a privilege log, and the parties would need time to review, respond to, and possibly contest any such claims of privilege. The State should be required to produce its information and supply its privilege logs within 14 days of the Court s order, and additional fact discovery should be allowed to proceed for a period of days from the date that South Carolina completes its supplemental production, including depositions of previously deposed and potentially new witnesses. At a minimum, the United States anticipates reopening the depositions of Marci Andino, Chris Whitmire, and the State Budget and Control Board. 4

5 Case 1:12-cv CKK-BMK-JDB Document 176 Filed 08/16/12 Page 5 of 5 Expert discovery may need to be reopened, and if so, experts would need an opportunity to prepare and produce supplemental reports and rebuttals. Such reports should be due 10 days after the conclusion of fact discovery. The parties would then need to be allowed time to re-depose experts as to their new/supplemental reports. Such depositions should occur 10 days after the receipt of reports. The current trial would necessarily need to be continued and a new schedule set, so that the above additional discovery could be accomplished. Date: August 16, 2012 Respectfully submitted, RONALD C. MACHEN, JR. United States Attorney District of Columbia THOMAS E. PEREZ Assistant Attorney General Civil Rights Division /s/ Bradley E.Heard T. CHRISTIAN HERREN, JR. RICHARD DELLHEIM BRADLEY E. HEARD (D.C. Bar No ) JARED SLADE CATHERINE MEZA ANNA M. BALDWIN (D.C. Bar No ) ERIN M. VELANDY Attorneys, Voting Section Civil Rights Division United States Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C Telephone: (202) Facsimile: (202)