Case 2:11-cv-00926-JTM-JCW Document 500-5 Filed 01/17/14 Page 1 of 8 Exhibit C
Case 2:11-cv-00926-JTM-JCW Document 500-5 Filed 01/17/14 Page 2 of 8 By E-Mail and First Class Mail Mr. Harry Skip Philips, Jr. Taylor, Porter, Brooks & Phillips LLP P.O. Box 2471 (70801-2471) 451 Florida Street, 8th Floor Baton Rouge, Louisiana 70801 skip.philips@taylorporter.com Ms. Celia Alexander State of Louisiana Department of Children & Family Services Bureau of General Counsel P.O. Box 1887 Baton Rouge, Louisiana 70821 celia.alexander@la.gov Re: Scott, et al. v. Schedler, et al., No. 2:11-cv-00926-JTM-JCW (E.D.La.) Mr. Philips and Ms. Alexander: We have reviewed the documents that the Louisiana Department of Children and Family Services ( DCFS ) provided pursuant to our October FOIA request (the October request ). We appreciate that DCFS provided us with these documents. Based on our review of the documents, it appears that DCFS has made commendable improvements in its efforts to comply with the National Voter Registration Act ( NVRA ), 42 U.S.C. 1973gg-5(a). It is clear, however, that some areas remain in which DCFS has not yet achieved full compliance with all of the requirements of the NVRA and the Permanent Injunction issued by the District Court in this case on January 23, 2013 (Doc. 437) (the Permanent Injunction ), and made in connection with the Court s Findings of Facts and Conclusions of Law (Doc. 436) and Partial Summary Judgment Order (Doc. 212) (collectively, the Rulings ). DCFS, therefore, is not currently complying with the Permanent Injunction. Pursuant to the terms of the Permanent Injunction, this letter constitutes written notice of the breaches described herein. Below, we list the specific breaches of the statute and the Rulings that we have identified based on our review of the documents and the information currently available to us. Following that discussion is a list of questions, concerns, and clarifications needed from DCFS to determine whether there are additional breaches.
Case 2:11-cv-00926-JTM-JCW Document 500-5 Filed 01/17/14 Page 3 of 8 Page 2 of 7 I. Breaches Luther Scott, Jr. Case File: In response to October request No. 10, you provided Mr. Scott s case file for all transactions between Mr. Scott and DCFS occurring since March 15, 2013. See Exhibit A. The documents provided include an inter-office communication dated July 12, 2013 from the Orleans Midtown (36) office to the East Baton Rouge (97) office, indicating that Mr. Scott s case file was being transferred because Mr. Scott had moved. However, even though Mr. Scott clearly reported a change of address when he moved from Orleans Parish to East Baton Rouge Parish, there is no record that he was offered voter registration upon doing so. Mr. Scott has confirmed to us that he was not given the opportunity to register when he changed his address. Based on this experience, DCFS is not providing the required voter registration services during every change of address transaction and therefore is violating the Permanent Injunction. 42 U.S.C. 1973gg-5(a)(6)(A); Doc. 436 at 25. FITAP & SNAP C-820 1 : The Family Independence Temporary Assistance Program ( FITAP ) C-820, FITAP Actions on Changes (revised October 2013), see Exhibit B and the Supplemental Nutrition Assistance Program ( SNAP ) C-820, SNAP Actions on Changes (revised October 2013), see Exhibit C, reflect several breaches of the NVRA and the Permanent Injunction. Based on the procedures established by these versions of the C-820 provided to us in response to the October request, voter registration services are not being provided during all covered transactions, as required by the statute and the Court s Rulings. Specifically, the documents provided indicate that Section 7 voter registration is not being provided during FITAP and SNAP covered transactions conducted via telephone, or during all change of address transactions. These failures are breaches of the Permanent Injunction and NVRA. First, the C-820 policies instruct that if an address or name change is reported in person or by telephone, then the caseworker should verbally offer voter registration. If the client responds yes, then the caseworker should have him complete the voter declaration form. However, if the client does not want to register or refuses to sign the voter declaration statement, the C-820 policies instruct FITAP and SNAP caseworkers that the client is considered to have declined in writing. Exhibit B at 7; Exhibit C at 9. This is a violation of the NVRA and of the Court s Rulings that a voter declaration form must be provided with each covered transaction 2 and thus not just when the client answers yes to a verbal offer and that a voter registration application must be distributed unless the client declines in writing to receive one. If the voter declaration statement is left blank, even if resulting from a client s refusal to sign, a voter registration application must be distributed to the client. See 42 U.S.C. 1973gg-5(a)(6)(A)(ii); 42 U.S.C. 1973gg-5(a)(6)(B); Doc. 436 at 25-26 ( DCFS was not in compliance with the 1 Please note that when multiple versions of a document were provided, we considered the most recent version. 2 See, e.g., 42 U.S.C. 1973gg-5(a)(6)(A); Doc. 436 at 29-30 (holding that public assistance agencies must provide a form that includes information and questions concerning registering to vote with each covered transaction); id. at 25 (finding that DCFS was not in compliance with the NVRA as of April, 2011 where it did not require its staff to distribute a voter preference form at every change of address transaction ).
Case 2:11-cv-00926-JTM-JCW Document 500-5 Filed 01/17/14 Page 4 of 8 Page 3 of 7 NVRA... [because it] did not require staff to distribute voter registration forms unless the client checked yes. ). Second, the C-820 policies instruct that caseworkers should contact clients by phone to offer assistance in completing the voter registration application, even if the client reported an address or name change in person. This practice violates the NVRA s requirement that the same degree of assistance be provided in completing voter registration applications as is provided in completing the agency s forms. 42 U.S.C. 1973gg-5(a)(6)(C). If the client provided the address or name change in person, then any assistance available to the client with that change would have been available in person, and thus any assistance in completing the voter registration application must also be available to the client in person. Otherwise, the same degree of assistance is not being provided, in violation of 42 U.S.C. 1973gg-5(a)(6)(C) and the Permanent Injunction. Doc. 436 at 20 (finding that DHH violated the NVRA where it checked benefits application forms and followed up for missing information, [but] did not do so with voter registration forms). Third, the C-820 policies instruct that if mail to a FITAP or SNAP client is returned as undeliverable and includes a forwarding address, then the caseworker must contact the household to confirm that the new forwarding address is correct. The C-820 policies further instruct that LAMI 3 must be updated with this new address information when reported/confirmed by the client, and that no other questions must be asked at that time. There is no instruction that voter registration services must be offered during this type of transaction; furthermore, such a service is in fact precluded by the instruction that no other discussion take place with the client when the change of address is made. This is a violation of the Permanent Injunction and the NVRA s requirement that voter registration be offered with changes of address. 42 U.S.C. 1973gg-5(a)(6)(A); Doc. 436 at 25. 4 CAFÉ: The CAFÉ screenshot provided, see Exhibit E, shows that when a client indicates he would like to register to vote, he is merely directed to a link to the Secretary of State s website. This violates the NVRA and the Court s Rulings. The NVRA s requirement that a voter registration application must be distributed to the client necessitates that every client receive an actual voter registration application, in a manner in which they can access it. 42 U.S.C. 1973gg-5(a)(6)(A). The District Court ruled that merely providing a link to the Secretary of State s website violated the NVRA. Doc. 436 at 25-26 (enumerating DCFS s NVRA violations, 3 LAMI, or the Louisiana Automated Management Information System, is a computer system used by caseworkers to process client information. 4 It should also be noted that the Voter Registration - Training & Development Unit - Economic Stability training document, see Exhibit D, instructs that, if mail is returned with a forwarding address, this does not constitute a change of address reported by the client, and so no further action is necessary. However, when mail is returned with a forwarding address, the FITAP & SNAP C-820 policies require that the caseworker call the client to confirm the new address, and use the form in LAMI to update the client s address for public assistance purposes. While the returned mail alone may not be a change of address reported by the client, the instruction provided in the training is misleading, as it fails to make clear that the subsequent confirmation by the client of the new forwarding address is indeed, a change of address transaction requiring NVRA voter registration services.
Case 2:11-cv-00926-JTM-JCW Document 500-5 Filed 01/17/14 Page 5 of 8 Page 4 of 7 including that DCFS policy gave employees discretion to give voter registration forms to clients, or to advise the client about the SOS website ). See also id. at 22-23 (finding that DHH properly offered voter registration during online transactions where persons had the option to register at geauxvote.com, download and print an application, or request an application via mail). Some DCFS clients who are eligible to register to vote will not be able to do so via the SOS s website (which requires a driver s license number to register online, or a printer to download and print a paper application); thus, a link to that website does not sufficiently discharge the agency s requirements. DCFS s practice of providing only a link to the SOS s website, therefore, violates the Permanent Injunction and the NVRA. DIS 012: The DIS 012, Ins. Voter Registration Declaration Statement (DIS 12) (revised December 2012), see Exhibit F, which provides instructions to caseworkers who are conducting the Disaster Supplemental Nutrition Assistance Program ( DSNAP ) program, instructs the caseworkers to provide the OFS 1VR declaration form and the LR-1M voter registration application only if the client indicates they would like to register to vote. This is a breach of the Permanent Injunction and the NVRA, which both require, as explained supra, that a declaration form be affirmatively provided to every client (rather than to clients who themselves request one), and that a voter registration application must be provided to every client who does not decline in writing to receive one. 42 U.S.C. 1973gg-5(a)(6)(A)(ii); 42 U.S.C. 1973gg- 5(a)(6)(B); Doc. 436 at 25-26. Additionally, the DIS 012 instructs caseworkers how to file the DIS 12 voter declaration form for online benefits applications, but is silent as to how caseworkers are to provide the voter registration application to persons who have applied online for DSNAP benefits. Unless the online application for DSNAP includes a usable voter registration application, this instruction is insufficient under the terms of the NVRA and the Permanent Injunction, as described supra. A-110: The A-110, Disaster Supplemental Nutrition Assistance Program (DSNAP Policy (revised May 1, 2013), see Exhibit G, includes voter registration information on pages 4 and 5 but omits an instruction to provide a voter registration application unless the client declines in writing to receive one. Instead, the policy instructs DSNAP workers to ask clients if they wish to register to vote; to document the response on the form DIS 12 (the declaration form for DSNAP applicants); and to provide assistance in completing the voter registration application if assistance is required. Under the Permanent Injunction and the NVRA, this DSNAP policy document should include instructions that a voter registration application must be provided unless the client declines in writing to receive one. 42 U.S.C. 1973gg-5(a)(6)(A)(ii); Doc. 436 at 25-26.
Case 2:11-cv-00926-JTM-JCW Document 500-5 Filed 01/17/14 Page 6 of 8 Page 5 of 7 FITAP C-410 & C-690: Pursuant to FITAP policies: C-410, FITAP Interview Procedures (revised October 2013) and C-690, FITAP Application Processing-Reminders (revised October 2013), see Exhibits H and I, an oral offer of voter registration is made during the FITAP telephone interviews, and then during application processing, a voter registration application is provided to all clients. If that is the case, then FITAP clients are not being provided with a voter declaration form, in violation of the Permanent Injunction and NVRA. 42 U.S.C. 1973gg- 5(a)(6)(B); Doc. 436 at 25. FITAP & SNAP S-410: Unlike some of the other policies provided, the FITAP S-410, FITAP Processing Standards, and SNAP S-410, SNAP Processing Standards (both revised October 2013), see Exhibits J and K, do not instruct caseworkers as to what they should do if a voter registration application is returned by the client unsigned, although they do contain other instructions regarding the handling of a completed application. The policy as written could foreseeably lead a caseworker to refrain from taking any action on an unsigned application, thus violating the requirement to provide equal assistance. 42 U.S.C. 1973gg-5(a)(C); Doc. 436 at 20. In order to correct this, both policies should be updated to include language, such as that from the FITAP and SNAP C-690s, stating If the LR-1M [voter registration application form] is returned unsigned, send the form back to the client with an OFS 18C [client contact letter] advising the client that they must sign the form before it can be submitted to the registrar of voters office for processing. OFS 1VR & DIS 12: The two stand-alone declaration forms, the Voter Registration Declaration Statement - Change of Address/Name (revised December 2012), see Exhibit L, and the DIS 12 (revised December 2012), see Exhibit M, both appear to require either a signature from the client, or a mark from the client along with signatures of two witnesses. The signature requirements of these declaration forms appear to confuse the requirements of the Louisiana voter registration application itself (which requires either a signature, or a mark and the signature of two witnesses), with the requirements of declaration forms under the NVRA. While the NVRA does require that a declaration from provided a place for the client to check a box, no signature or witnesses are required. Moreover, if the client must affirmatively sign the form (or affirmatively mark the form and secure additional witness signatures) in order to receive a voter registration application form, that is a violation of the NVRA s requirement that a voter registration application form be provided unless the client declines in writing to receive one, and of the Permanent Injunction. 42 U.S.C. 1973gg-5(a)(6)(A)(ii); Doc. 436 at 25-26.
Case 2:11-cv-00926-JTM-JCW Document 500-5 Filed 01/17/14 Page 7 of 8 Page 6 of 7 II. Questions OFS MER 1: The Management Evaluation Review - Parish Office Operational Procedures (revised December 2012), see Exhibit N, appears to contain an oversight. The document contains two nearly identical interview critiques. See pages 15-18. The second critique has a question about voter registration assistance under Section IV.E, but the first critique does not. Please advise as to whether this is an oversight/typo, or whether this omission is intentional. OFS 4APP Instructions: The instructions for the OFS 4APP form, revised March 2013, see Exhibit O, suggest that the declaration question and voter registration application are included as part of the OFS 4APP, but the OFS 4APP form itself was not included in the documents sent in response to the October request. Please advise as to whether the current OFS 4APP includes the declaration and application, and provide a copy of the current OFS 4APP form. CAFE Policies: Our October request No. 7 sought policies pertaining to distribution of voter registration through Internet transactions, but instead you provided additional CAFÉ screenshots. Please advise as to whether DCFS maintains any written policies that pertain specifically to internet transactions, and please provide a copy of any/all such written policies (including policies as provided to DCFS workers in Power Point presentations, manuals, etc.). Coding: Pursuant to various policy documents, including the S-410 s, voter registration applications are coded by circling the PA designation only when they are completed by the client and returned to a DCFS office. On the other hand, applications that originate at the agency, but which are taken home by the client to complete later (and then delivered directly to the registrar), are not coded. As a result, not all of the voter registration applications that originate at DCFS offices will be properly credited. This will result in inaccurate numbers being provided to the U.S. Election Assistance Commission, causing inaccuracies and inefficiencies in monitoring efforts. Additionally, the training document referenced on page 3 of this letter and attached as Exhibit D does not include instructions to code completed applications that are returned to the agency. * * * * * Also, please be aware that we are sending a similar letter to the Louisiana Secretary of State ( SOS ). We have reviewed policies and procedures recently updated by the Secretary of State and provided to us in your response to the October request. As we have apprised the SOS, the newly-enacted Election Rules, La. Admin. C tit. 31, 401, et seq. (2013), violate the NVRA and the Permanent Injunction because they do not address the Court s determination that voter registration services pursuant to Section 7 of the NVRA must be offered during remote transactions. Furthermore, the new rules fail to codify the requirement that a voter registration application must be distributed to a client unless the application is declined in writing. Both omissions violate the NVRA and the Court s Rulings. Therefore, DCFS should not rely upon the newly-enacted rules for the issues identified above to ensure compliance with the NVRA and the Permanent Injunction.
Case 2:11-cv-00926-JTM-JCW Document 500-5 Filed 01/17/14 Page 8 of 8 Page 7 of 7 Pursuant to the terms of the Permanent Injunction, this letter serves as written notice of DCFS s failure to comply with each aspect of the Court s Rulings. Please provide a response to this letter within 30 days, i.e. by January 13, 2014, as required by the Permanent Injunction. We are also available to speak with you sooner, if you believe that a discussion about the above would be helpful. Sincerely, -S- Sarah Brannon Director, Public Assistance Voter Registration Program Project Vote Natasha M. Korgaonkar Assistant Counsel, Political Participation Group NAACP Legal Defense and Educational Fund, Inc. Ronald L. Wilson Law Offices of Ronald L. Wilson Israel David Fried Frank Shriver & Jacobson LLP CC: Celia Rhea Cangelosi 918 Government Street, Suite 101 Baton Rouge, Louisiana 70821 225-387-0511 celiacan@bellsouth.net Carey Thompson Jones 1234 Del Este Avenue, Suite 803 Denham Springs, Louisiana 70726 225-664-0077 tjones@tomjoneslaw.com Encls.