Case 1:16-cv-00452-TCB Document 29 Filed 08/11/16 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION COMMON CAUSE, et al., * * Civil Action No. Plaintiffs, * 1:16CV00452-TCB v. * * BRIAN KEMP, Secretary of State, * * Defendant. * DEFENDANT KEMP S BRIEF IN RESPONSE TO PLAINTIFF S BRIEF REGARDING DEFENDANT S SUPPLEMENTAL AUTHORITY AND ALSO IN RESPONSE TO THE SECOND BRIEF OF THE UNITED STATES SAMUEL S. OLENS 551540 Attorney General DENNIS R. DUNN 234098 Deputy Attorney General RUSSELL D. WILLARD 760280 Senior JULIA B. ANDERSON 017560 Senior CRISTINA CORREIA 188620 JOSIAH HEIDT 104183
Case 1:16-cv-00452-TCB Document 29 Filed 08/11/16 Page 2 of 9 This Court granted the parties leave to file briefs, limited to five (5) pages, regarding the recent district court opinion in A. Phillip Randolph Institute v. Husted, 2016 U.S. Dist. LEXIS 84519 (S.D. Ohio June 29, 2016) holding that an Ohio statute that relies on non-voting to trigger a confirmation post card does not violate the National Voter Registration Act (NVRA). The Department of Justice (DOJ) has in turn filed its 276 page amicus brief from the Sixth Circuit Husted appeal. DOJ s brief is largely duplicative of its prior brief, but its characterization of a 2007 settlement agreement, where DOJ required the City of Philadelphia to send a confirmation postcard to every voter who missed even one election, requires a response. In a remarkable statement, DOJ asserts that the Philadelphia settlement agreement is of limited value... [because] [t]hat case was about Philadelphia s failure to remove voters who had died (rather than voters who had moved) from its rolls. Doc. 27-1 at 31. DOJ states that [a]s part of the settlement, the parties agreed that Philadelphia would essentially comply with Pennsylvania law, which permit[ted] the use of non-voting to trigger the Section 8(d) process. Id. These statements are remarkable for two reasons. First, DOJ entered into a settlement agreement that required Philadelphia to send a confirmation post card to 1
Case 1:16-cv-00452-TCB Document 29 Filed 08/11/16 Page 3 of 9 anyone who missed even one election. 1 That DOJ would suggest that they entered into a settlement agreement requiring the City of Philadelphia to act in a manner that DOJ believes violates the NVRA is stunning. DOJ has enforcement authority under the NVRA, and to suggest that they required Philadelphia to violate the very statute that Congress charged them with enforcing defies all credibility. Second, despite DOJ s clear statement to the contrary, the Sec. 8 enforcement action in Philadelphia was not limited to Philadelphia s failure to remove voters who had died (rather than voters who had moved) from its rolls. Doc. 27-1 at 31. The Amended Complaint in that case alleged in part: Section 8(a)(4) of the NVRA requires that in the administration of voter registration for elections for Federal office, each State shall... conduct a general program that makes reasonable effort to remove the names of ineligible voters from the official list of eligible voters by reason of (A) the death of the registrant; or (B) a change in address of the registrant. Doc. 27-1 at 242 53 (quoting 52 U.S.C. 20507(a)(4)) (emphasis added). The Amended Complaint alleged further that: 1 While DOJ now characterizes the settlement as permitting Philadelphia to use non-voting to trigger sending a confirmation postcard, the settlement explicitly required Philadelphia to do so. Compare Doc. 27-1 at 31 n. 10 and Doc. 27-1 at 259 16 ( It shall be the policy of the Board to... (5) send a forwardable confirmation notice to any registered elector who has not voted nor appeared to vote during any election. ) (emphasis added)). 2
Case 1:16-cv-00452-TCB Document 29 Filed 08/11/16 Page 4 of 9 The City s program not only must identify registrants who have died,... it must take reasonable steps to identify registrants who have changed their address. Doc. 27-1 at 242 54 (emphasis added). Contrary to DOJ s representation, therefore, the Philadelphia lawsuit was a Sec. 8 enforcement action aimed at Philadelphia s failure to conduct list maintenance with regard to both deceased voters and voters who had moved. DOJ s statement that the Philadelphia lawsuit was limited to removal of voters who had died, is flatly contradicted by the Amended Complaint DOJ filed in that action. Nor are DOJ s arguments that its interpretation of the NVRA has been consistent supported by the additional documents it attaches to its latest brief. See Doc. 27-1 at 66-274. First, the vast majority of these additional documents were entered before the 2002 amendment to the NVRA. 2 Second, even where a settlement may not have expressly required, as it did in Philadelphia, that confirmation postcards be sent to voters for not voting, nothing in any post 2002 settlement prohibits such a practice. Despite DOJ s statement to the contrary, the Indiana Consent Decree and Order does not restrict mailing confirmation post cards to voters for whom a mailing 2 In 2002 the NVRA was amended to make clear that nothing in Section 8(b) of the NVRA prohibits the removal of a voter s name, for change of residence, where a voter, in addition to not having any contact, has failed to return a confirmation postcard and has failed to appear to vote in two subsequent federal elections. See Sec. 8(b)(2), 52 U.S.C. 20507(b)(2). 3
Case 1:16-cv-00452-TCB Document 29 Filed 08/11/16 Page 5 of 9 had been returned as undeliverable. Doc. 27-1 at 30. Indiana had failed to conduct list maintenance, and the Consent Decree with DOJ therefore required that the state send a non-forwardable mailing to every voter and then follow up with a forwardable confirmation postcard to those voters whose mail was returned. Doc. 27-1 at 224 2. However, going forward, Indiana was required to send the confirmation notice to voters who may have moved... or for whom there is no forwarding information. Doc. 27-1 at 226 4(5) (emphasis added). There was no requirement that a confirmation postcard must only follow receipt of returned mail. Moreover, the Consent Decree describes how otherwise eligible voters that fail to return their confirmation postcard may be required to reactivate their registration by voting. Doc. 27-1 at 226 4(9). The Indiana Decree is consistent with Defendant s interpretation of the NVRA, not Plaintiffs. Like the district court in Husted, this Court should refuse to give any weight to DOJ s interpretation of the NVRA. [T]he Court need not consider [DOJ s] interpretations where the NVRA is clear on its face. Husted, 2016 U.S. Dist. LEXIS 84519 * 17 (S.D. Ohio 2016). The Husted Court correctly rejected DOJ s invitation to read additional terms into the statute. The plain language of the NVRA contradicts Plaintiffs position. The phrases Plaintiffs rely on such as reliable second-hand information, independent of the voter s failure to vote, initiate, 4
Case 1:16-cv-00452-TCB Document 29 Filed 08/11/16 Page 6 of 9 trigger, etc., are nowhere to be found in the NVRA. These are phrases that Plaintiffs [and DOJ] would like the Court to write into the NVRA. Husted, 2016 U.S. Dist. LEXIS 84519 * 22-23. The district court also correctly rejected arguments that dicta in Welker v. Clarke, 239 F.3d 596, 599 (3rd Cir. 2001) suggests the NVRA restricts sending confirmation postcards to situations where the state has reliable information that the voter has moved. 3 What the dicta in Welker actually said was that the NVRA... required... using reliable information from government agencies. Husted, 2016 U.S. LEXIS 84519 * 28-29 (emphasis in original). As the Husted court held, Plaintiff s argument goes beyond the dicta in Welker, taking it one step further by asking th[e] Court to determine that based on dicta from Welker, [that] a state must use information that reliably indicates a voter has moved. Id. The NVRA and HAVA prohibit removing a voter from the registration list solely for not voting. Georgia, like Ohio, only removes voters if they both fail to respond to a forwardable confirmation postcard and then fail to vote in two subsequent federal elections. As the Husted court held, this process does not violate the NVRA. Husted, 2016 U.S. Dist. LEXIS * 23-24. 3 DOJ made this argument in its initial Statement of Interest in this case. Doc. 19 at 12. Defendant has previously addressed how Welker in fact approved of a list maintenance plan that sent confirmation postcards to anyone who had not voted for five years. Doc. 22 at 7-9. 5
Case 1:16-cv-00452-TCB Document 29 Filed 08/11/16 Page 7 of 9 Respectfully submitted, SAMUEL S. OLENS 551540 Attorney General DENNIS R. DUNN 234098 Deputy Attorney General RUSSELL D. WILLARD 760280 Senior JULIA B. ANDERSON 017560 Senior janderson@law.ga.gov /s/cristina Correia CRISTINA CORREIA 188620 ccorreia@law.ga.gov Please address all Communication to: CRISTINA CORREIA 40 Capitol Square, S.W. Atlanta, Georgia 30334-1300 (404) 656-7063 Fax: 404-651-9325 JOSIAH HEIDT 104183 jheidt@law.ga.gov 6
Case 1:16-cv-00452-TCB Document 29 Filed 08/11/16 Page 8 of 9 CERTIFICATE OF COMPLIANCE I hereby certify that the forgoing was prepared in 14-point Times New Roman in compliance with Local Rules 5.1(C) and 7.1(D). 7
Case 1:16-cv-00452-TCB Document 29 Filed 08/11/16 Page 9 of 9 Certificate of Service I hereby certify that I have electronically filed the foregoing using the CM/ECF system which will automatically send e-mail notification of such filing to the following attorneys of record: Emmet J. Bondurant, II Jason J. Carter Chad Lennon Bondurant Mixson & Elmore, LLP 1201 West Peachtree Street, N.W. 3900 One Atlantic Center Atlanta, GA 30309-3417 I hereby certify that I have mailed by United States Postal Service the document to the following non-cm/ecf participants: Gabriel A. Mendel T. Christian Herren, Jr. Assistant U.S. Attorney Richard A. Dellheim Northern District of Georgia Samuel G. Oliker-Friedland 600 United States Courthouse Voting Section 75 Ted Turner Drive, SW Civil Rights Division Atlanta, GA 30303 U.S. Department of Justice Room 7238 NWB 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 This 11th day of August, 2016. /s/cristina Correia CRISTINA CORREIA 8