Case 1:11-cv-01849-CAP Document 25 Filed 08/10/11 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION GEORGIA STATE CONFERENCE * OF THE NATIONAL * ASSOCIATION FOR THE * ADVANCEMENT OF COLORED * PEOPLE, COALITION FOR THE * CIVIL ACTION FILE PEOPLES AGENDA, and * NO. 1:11-CV-1849-CAP CRAIG MURPHY, * * Plaintiffs, * * v. * * BRIAN KEMP, in his official capacity as * Secretary of State, and CLYDE L. * REESE, III, in his official capacity as * Commissioner of the Georgia * Department of Human Services, * * Defendants. * MOTION TO DISMISS AMENDED COMPLAINT COME NOW, BRIAN KEMP, in his official capacity as Secretary of State ( Secretary Kemp ), and CLYDE L. REESE, III., in his official capacity as Commissioner of the Georgia Department of Human Services ( Commissioner Reese ), by and through their counsel of record, Samuel S. Olens, the Attorney General for the State of Georgia, and file their Motion to Dismiss Plaintiff s Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6).
Case 1:11-cv-01849-CAP Document 25 Filed 08/10/11 Page 2 of 6 Plaintiffs Amended Complaint is subject to dismissal for several reasons: (A) the organizational plaintiffs lack standing, (B) Plaintiffs failed to comply with the mandatory notice requirements prior to filing suit, (C) certain of Plaintiffs claims are moot, and (D) certain of Plaintiffs claims fail as a matter of law. The NVRA requires certain government offices providing public services to offer voter registration opportunities to all applicants and recipients of public assistance. See 42 U.S.C. 1973gg-5(a)(4). The NVRA also requires a potential plaintiff to provide notice of a violation of the law to the Secretary of State at least ninety days prior to initiating suit. See 42 U.S.C. 1973gg-9(b). That plaintiff may then file suit with respect to the violation only if the violation is not corrected during those ninety days. Id. Here, only the NAACP provided any notice of any alleged violations of the NVRA, and thus the claims of the Plaintiffs Peoples Agenda and Murphy are subject to dismissal for failure to comply with Section 11 of the NVRA. 42 U.S.C. 1973gg-9(b)(1). Moreover, the NAACP provided notice regarding only three of Plaintiffs claims. The first claim, that the internal policies of the Georgia Department of Human Services ( DHS ) violated Section 7 of the NVRA ( Section 7 ), was cured during the ninetyday period by a voluntary revision of the policy. The second claim, that
Case 1:11-cv-01849-CAP Document 25 Filed 08/10/11 Page 3 of 6 Georgia law violates Section 7 by limiting voter registration opportunities to in-person transactions rather than in-person and remote transactions, such as internet and telephone transactions, appears to have been abandoned in Plaintiffs Amended Complaint, and fails in any event because the NVRA requires only that the state offer registration services to applicants/recipients appearing in person. See 42 U.S.C. 1973gg-2(a)(3)(B). The third claim alleges an amorphous general violation of the NVRA, and fails to satisfy the pleading requirements of F.R.C.P. 12(b)(6). The remaining claims are subject to dismissal for failure to provide notice, and for failure to state a claim under F.R.C.P. 12(b)(6). Moreover, the organizational plaintiffs lack standing to assert their claims. The grounds for Defendants motion are set forth in more detail in the attached brief. Defendants have also submitted several exhibits in support of their motion to dismiss. See Muhammad v. HSBC Bank USA, N.A., 399 Fed. Appx. 460 462 (11th Cir. 2010) (citing Goodman ex rel. Goodman v. Sipos, 259 F.3d 1327, 1231, n. 6 (11th Cir. 2001)) (court is authorized to consider facts outside the pleadings on a motion to dismiss filed pursuant to F.R.C.P. 12(b)(1)). For the reasons set forth herein and in the attached brief, Defendants submit that Plaintiffs Amended Complaint should be dismissed in its entirety with all costs cast against Plaintiffs.
Case 1:11-cv-01849-CAP Document 25 Filed 08/10/11 Page 4 of 6 Please address all Communication to: JULIA B. ANDERSON Senior Assistant Attorney General 40 Capitol Square, S.W. Atlanta, Georgia 30334-1300 (404) 463-3630 FAX (404) 657-9932 Respectfully submitted, SAMUEL S. OLENS 551540 Attorney General DENNIS R. DUNN 234098 Deputy Attorney General STEFAN RITTER 606950 Senior Assistant Attorney General /s/ Julia B. Anderson JULIA B. ANDERSON 017560 Senior Assistant Attorney General
Case 1:11-cv-01849-CAP Document 25 Filed 08/10/11 Page 5 of 6 CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing MOTION TO DISMISS AMENDED COMPLAINT with the Clerk of Court using the CM/ECF system which will automatically send email notification of such filing to the following attorneys of record and by mailing by regular first class mail to those attorneys not currently admitted pro hac vice. The attorneys who are being served by mail are indicated with an asterisk. Moffatt Laughlin McDonald ACLU Foundation Voting Rights Project 230 Peachtree Street, NW Suite 1440 Atlanta, GA 30303-1504 Nancy Gbana Abudu ACLU Southern Regional Office Suite 1440 230 Peachtree Street Atlanta, GA 30303 Neil A. Steiner * Robert W. Topp DECHERT LLP 1095 Avenue of the Americas New York, New York 10036 Nicole K. Zeitler Niyati Shah PROJECT VOTE 737 1/2 8 th Street SE Washington, DC 20003
Case 1:11-cv-01849-CAP Document 25 Filed 08/10/11 Page 6 of 6 Robert A. Kengle Mark A. Posner LAWYERS COMMITTEE FOR CIVIL RIGHTS UNDER LAW 1401 New York Avenue, N.W., Suite 400 Washington, D.C. 20005 Brenda Wright DEMOS: A NETWORK FOR IDEAS AND ACTION 358 Chestnut Hill Avenue, Suite 303 Brighton, Massachusetts 02135 Allegra Chapman DEMOS: A NETWORK FOR IDEAS AND ACTION 220 Fifth Avenue, 5th Floor New York, New York 10001 Kim Keenan * Anson Asaka NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC. NAACP National Office 4805 Mt. Hope Drive Baltimore, MD 21215 This 10 th day of August 2011. /s/ Julia B. Anderson JULIA B. ANDERSON Senior Assistant Attorney General
Case 1:11-cv-01849-CAP Document 25-1 Filed 08/10/11 Page 1 of 27 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION GEORGIA STATE CONFERENCE * OF THE NATIONAL * ASSOCIATION FOR THE * ADVANCEMENT OF COLORED * PEOPLE, COALITION FOR THE * CIVIL ACTION FILE PEOPLES AGENDA, and * NO. 1:11-CV-1849-CAP CRAIG MURPHY, * * Plaintiffs, * * v. * * BRIAN KEMP, in his official capacity as * Secretary of State, and CLYDE L. * REESE, III, in his official capacity as * Commissioner of the Georgia * Department of Human Services, * * Defendants. * BRIEF IN SUPPORT OF MOTION TO DISMISS AMENDED COMPLAINT Plaintiffs Georgia State Conference of the NAACP ( NAACP ), the Coalition for the Peoples Agenda ( Peoples Agenda ), and Craig Murphy ( Murphy ) (collectively, Plaintiffs ) filed suit against Georgia Secretary of State Brian Kemp ( Secretary Kemp ) and Commissioner of the Georgia Department of Human Services Clyde L. Reese, III ( Commissioner Reese ) seeking declaratory
Case 1:11-cv-01849-CAP Document 25-1 Filed 08/10/11 Page 2 of 27 and injunctive relief under the National Voter Registration Act of 1993 ( NVRA ), 42 U.S.C. 1973gg et seq. Among other things, the NVRA requires certain government offices providing public services to offer voter registration opportunities to all applicants and recipients of public assistance. See 42 U.S.C. 1973gg-5(a)(4). The NVRA also requires a potential plaintiff to provide notice of a violation of the law to the Secretary of State at least ninety days prior to initiating suit. See 42 U.S.C. 1973gg-9(b). That plaintiff is then granted the limited authority to file suit with respect to the violation only if the violation is not corrected during those ninety days. Id. Of the three Plaintiffs, only the NAACP provided any notice of any alleged violations of the NVRA, and thus the claims of the Plaintiffs Peoples Agenda and Murphy are subject to dismissal for failure to comply with Section 11 of the NVRA. 42 U.S.C. 1973gg-9(b)(1). Moreover, the NAACP provided notice regarding only three of Plaintiffs claims. The first claim, that the internal policies of the Georgia Department of Human Services ( DHS ) violated Section 7 of the NVRA ( Section 7 ), was cured during the ninety-day period by a voluntary revision of the policy. The second claim, that Georgia law violates Section 7 by limiting voter registration opportunities to in-person transactions rather than inperson and remote transactions, such as internet and telephone transactions, 2
Case 1:11-cv-01849-CAP Document 25-1 Filed 08/10/11 Page 3 of 27 appears to have been abandoned in Plaintiffs Amended Complaint, and fails in any event because the NVRA requires only that the state offer registration services to applicants or recipients appearing in person. See 42 U.S.C. 1973gg-2(a)(3)(B). The third claim alleges an amorphous general violation of the NVRA, and fails to satisfy the pleading requirements of F.R.C.P. 12(b)(6). The remaining claims are subject to dismissal for failure to provide notice, and for failure to state a claim under F.R.C.P. 12(b)(6). Moreover, the organizational plaintiffs lack standing to assert their claims. STATUTORY BACKGROUND In 1993, Congress passed the NVRA. During its 1994 session, the Georgia General Assembly passed legislation to implement the requirements of the NVRA. 1994 Ga. Laws 1443 (Act 1207, H.B. 1429). Section 4 of the NVRA requires states to establish procedures for voter registration in Federal elections by application in person... at Federal, State, or nongovernmental offices designated under Section 7. 42 U.S.C. 1973gg-2(a)(3)(B). Under Section 7, all offices in the State that provide public assistance must be designated as voter registration agencies. 42 U.S.C. 1973gg-5(a)(2)(A). Georgia has designated each office that provides public assistance as a voter registration agency. O.C.G.A. 21-2-222(b). DHS is a state agency responsible for the administration of public assistance in the State of Georgia, including, but not limited to, the administration of the 3
Case 1:11-cv-01849-CAP Document 25-1 Filed 08/10/11 Page 4 of 27 Supplemental Nutrition Assistance Program ( SNAP ), formerly known as the Food Stamp program, TANF (Temporary Assistance for Needy Families), and Medicaid programs, see O.C.G.A. 49-3-4 and 49-3-6, and as such is a voter registration agency. Designated public assistance agencies must: 1) distribute mail voter registration application forms; 2) provide assistance to applicants in completing the forms, unless the applicant refuses such assistance; and 3) accept completed forms for transmittal to the Secretary of State. 42 U.S.C. 1973gg-5(a)(4)(A). Georgia law has codified Section 7 by providing that each public assistance office shall: 1) distribute mail voter registration application forms; 2) provide assistance to applicants in completing the forms, unless the applicant refuses such assistance; and 3) accept completed forms for transmittal to the Secretary of State. O.C.G.A. 21-2-222(d). The staff at state public assistance offices assist with registration applications, unless the applicant refuses such assistance. 42 U.S.C. 1973gg-5(a)(6)(C). See also 21-2-222(d)(2). As part of the voter registration process at public assistance agencies, in addition to distributing mail voter registration application forms, applicants/recipients of public assistance are also provided a declination form, which in Georgia is called a declaration statement. 42 U.S.C. 4
Case 1:11-cv-01849-CAP Document 25-1 Filed 08/10/11 Page 5 of 27 1973gg-5(a)(6)(B). See also O.C.G.A. 21-2-222(f). The NVRA mandates the exact wording of the questions that must be included on the declaration statement form, including whether the applicant/recipient accepts or declines to vote. Id. The NVRA requires that [e]ach State shall designate a State officer or employee as the chief State election official to be responsible for coordination of State responsibilities under the NVRA. 42 U.S.C. 1973gg-8. The Georgia Secretary of State is designated as Georgia s chief state election official. O.C.G.A. 21-2-210. The NVRA provides that a person who is aggrieved by a violation of this Act may provide written notice of the violation to the chief election official of the State involved. 42 U.S.C. 1973gg-9(b)(1). If the noticed violation is not corrected within 90 days after receipt of the notice from the aggrieved person, such person may bring a civil action for declaratory or injunctive relief with respect to the violation. 42 U.S.C. 1973gg-9(b)(2). STATEMENT OF FACTS On January 25, 2011, Plaintiff NAACP sent a letter to Secretary Kemp that asserted that substantial evidence existed demonstrating that Georgia was systematically failing to provide the voter registration services at its public assistance offices that are required by the NVRA. Defendants Exhibit 1 at 2. In that letter, the NAACP said it had reviewed records from the U.S. Election Assistance Commission that revealed a steady decline in voter registration at state 5
Case 1:11-cv-01849-CAP Document 25-1 Filed 08/10/11 Page 6 of 27 public assistance offices. Id. The NAACP further advised that it had conducted an investigation of Georgia s NVRA compliance, including visits to eleven public assistance offices throughout Georgia, which showed that voter registration was not being offered at eight of these eleven offices, and that voter registration services were materially inadequate under the NVRA at the other three offices. Id. 1 The letter also alleged that state law and certain state agency policies violated the NVRA. On February 15, 2011, the Secretary of State responded to the NAACP s letter, indicating that the State was commencing an internal review into the alleged violations, and requested that the NAACP provide more detailed information to assist in the State s review. Defendants Exhibit 2. On February 25, 2011, the NAACP provided the addresses of the eleven public assistance offices that were visited as part of the investigation, disclosed that the investigation was conducted in September 2010, and that 50 unnamed individuals were interviewed. Defendants Exhibit 3 at 2. The NAACP did not include any documents or identifying information about any of the applicants or recipients the NAACP interviewed or the DHS caseworkers who met with those individuals. Although 1 Georgia has at least one state public assistance office in each of its 159 counties and in some counties more than one. http://dfcs.dhr.georgia.gov/portal/site/dhsdfcs/menuitem.76e501556de1714707 7a8110da1010a0/?vgnextoid=8eb92b48d9a4ff00VgnVCM100000bf01010aRCRD. (last visited on August 10, 2011). 6
Case 1:11-cv-01849-CAP Document 25-1 Filed 08/10/11 Page 7 of 27 the NAACP s February 25, 2011 letter briefly summarized the overall results of its interviews, this information was insufficient to allow Defendants to determine what violations may have occurred in which offices. 2 In addition to alleging an amorphous systemic failure to provide voter registration services, in its January 25, 2010 letter, the NAACP alleged that: (1) Georgia s state law and (2) internal DHS policies failed to comply with the NVRA. Defendants Exhibit 1 at 2. With respect to the state law claims, the NAACP alleged that state law is contrary to the NVRA because it provides that voter registration applications shall be distributed any time an application for benefits, recertification, renewal, or change of address is made in person, O.C.G.A. 21-2-222(f), which somehow contravenes the NVRA s identical requirement that registrations be made available for applications made in person. 42 U.S.C. 1973gg-2(a)(3)(B). As this is a pure issue of law, there was nothing for the State to investigate. The two internal DHS policies referred to in Plaintiffs notice were issued by the Medicaid and TANF programs in August 2009. Defendants Exhibits 8 and 9. The policies included a statement that once an applicant or recipient declined an 2 As shown from correspondence between the NAACP s attorneys and Secretary Kemp s office, Secretary Kemp worked throughout the notice period to obtain additional information regarding the NAACP s claims in an effort to determine their exact nature so that Defendants could attempt to resolve Plaintiffs claims during the notice period. Defendants Exhibits 1 through 7. 7
Case 1:11-cv-01849-CAP Document 25-1 Filed 08/10/11 Page 8 of 27 offer to vote in writing the agency was no longer required to offer voter registration services. Defendants Exhibit 8 at 1; Exhibit 9 at 3. The NAACP contended that this revision was contrary to the NVRA, which requires that an applicant or recipient be offered voter registration services when applying, recertifying, renewing, or making a change of address. 42 U.S.C. 1973gg-5(a)(6). The August 2009 Medicaid voter registration policy was corrected three months later by a policy revision issued in November 2009. Defendants Exhibit 10. After consideration of the NAACP s letter, it was concluded that the TANF policy should be corrected to comply with the NVRA. The TANF policy was corrected by a memorandum issued by DHS on April 21, 2011. Defendants Exhibit 11. The memorandum, which was sent to all state public assistance office staff, reaffirmed DHS policy, consistent with Section 7, that all applicants or recipients must be offered voter registration services each time they apply in person when the applicant or recipient is applying for services, recertifying or renewing, or reporting a change of address. Id. In a letter dated April 22, 2011, Secretary Kemp notified the NAACP that DHS was working on an update to its NVRA policies but that, in the interim, DHS had issued a memorandum to all staff reinforcing DHS NVRA responsibilities, including the requirement that every person appearing in person to apply for, 8
Case 1:11-cv-01849-CAP Document 25-1 Filed 08/10/11 Page 9 of 27 renew or recertify benefits or change the address for receipt of benefits must be offered the opportunity to register to vote. A copy of DHS memo was enclosed in Secretary Kemp s letter to the NAACP. Defendants Exhibit 4. In that letter, Secretary Kemp also advised that once the revision of the voter registration policies was finalized, the revised policies would be submitted to the Department of Justice ( DOJ ) for preclearance. Id. DHS has now submitted those proposed policies for the Food Stamps, Medicaid and TANF programs to DOJ for preclearance. 3 On Friday, June 3, 2011, the NAACP sent a letter to Secretary Kemp stating that the NAACP intends to move forward with litigation imminently, and has been joined in this effort by the Coalition for the Peoples Agenda. 4 Defendants Exhibit 7. Peoples Agenda never provided any other notice to Defendants prior to that date. Plaintiffs NAACP and Peoples Agenda filed this lawsuit the following Monday, June 6, 2011. [Doc. 1]. 3 DHS had inadvertently omitted to seek preclearance for its voter registration policies in the past and therefore has submitted its prior, current and proposed voter registration policies for preclearance, as required under Section 5 of the Voting Rights Act of 1965. 42 U.S.C. 1973c. See Defendants Exhibit 12 (attached to Declaration of Julia B. Anderson). 4 In an attempt to avoid litigation, on May 12, 2011, Secretary Kemp sent a letter to the NAACP stating that he would meet with the NAACP to discuss their specific recommendations for NVRA compliance if they would provide their recommendations to him. Defendants Exhibit 6. The NAACP refused. 9
Case 1:11-cv-01849-CAP Document 25-1 Filed 08/10/11 Page 10 of 27 Defendants filed a Motion to Dismiss on June 27, 2011. [Doc. 15]. On July 13, 2011, Plaintiffs filed an Amended Complaint, adding Craig Murphy ( Murphy ) as an individual Plaintiff. [Doc. 20]. Murphy, who receives food stamps, moved from Henry County to Fulton County in February 2010. Amended Complaint ( Am. Compl. ), 53 and 54. Plaintiffs allege that Murphy has never been offered the opportunity to vote or change his voter registration address. Am. Compl., 59. Murphy never provided any notice to Defendants prior to July 13, 2011, the date Plaintiffs filed their Amended Complaint. On August 3, 2011, Defendants mailed Murphy a voter registration application through his attorney. Defendants Exhibit 13. STANDARD OF REVIEW On a motion to dismiss, the Court must construe all facts in the light most favorable to the Plaintiff. Speaker v. United States HHS CDC, 623 F.3d 1371, 1379 (11 th Cir. 2010). However, the complaint must contain something more than a formulaic recitation of the elements of a cause of action. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). More recently, in Ashcroft v. Iqbal, 556 U.S., 129 S. Ct. 1937, 1949 (2009). the Supreme Court further clarified the pleading standard under F.R.C.P. 8, stating: [T]he pleading standard Rule 8 announces does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers labels and conclusions 10
Case 1:11-cv-01849-CAP Document 25-1 Filed 08/10/11 Page 11 of 27 or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief. Id. at 1949-50 (internal citations and quotations omitted). In considering a motion to dismiss for lack of subject matter jurisdiction, a district court may consider facts outside of the pleadings. Muhammad v. HSBC Bank USA, N.A., 399 Fed. Appx. 460 462 (11 th Cir. 2010) (citing Goodman ex rel. Goodman v. Sipos, 259 F.3d 1327, 1231, n. 6 (11 th Cir. 2001)). ARGUMENT AND CITATION OF AUTHORITY Plaintiffs Amended Complaint is subject to dismissal for several reasons: (A) the organizational plaintiffs lack standing, (B) Plaintiffs failed to comply with the mandatory notice requirements prior to filing suit, (C) certain of Plaintiffs claims are moot, and (D) certain of Plaintiffs claims fail as a matter of law. 11
Case 1:11-cv-01849-CAP Document 25-1 Filed 08/10/11 Page 12 of 27 A. Plaintiffs Have Failed To Allege A Particularized Injury Sufficient To Satisfy The Article III Requirements Of Standing. The party invoking federal jurisdiction bears the burden of proving standing. Common Cause/Georgia v. Billups, 554 F.3d 1340, 1349 (11 th Cir. 2009). [E]ach element of standing must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation. Id. (quoting Bischoff v. Osceola County, Fla., 222 F.3d 874, 878 (11th Cir. 2000)). The three-part test for establishing standing under Article III of the Constitution is well-established. First, the plaintiff must have suffered, or must face an imminent and not merely hypothetical prospect of suffering, an invasion of a legally protected interest resulting in a concrete and particularized injury. Second, the injury must have been caused by the defendant's complained-of actions. Third, the plaintiff's injury or threat of injury must likely be redressible by a favorable court decision. Common Cause, 554 F.3d at 1349-50. An injury sufficient for standing purposes is an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Common Cause, 554 F.3d at 1350 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). 12
Case 1:11-cv-01849-CAP Document 25-1 Filed 08/10/11 Page 13 of 27 Plaintiffs allege widespread ongoing noncompliance with Section 7. Am. Compl., 25. However, in the NAACP s correspondence with Secretary Kemp, the NAACP refused to provide sufficient details regarding the alleged violations. During the notice period, Plaintiffs failed to disclose any details of a single individual who was denied the opportunity to register to vote at a public assistance office. Plaintiffs failed to identify any individual who they intended to name as a Plaintiff in this lawsuit. Even now that they have initiated litigation, Plaintiffs still refuse to include specific details in the Amended Complaint. Most notably, NAACP and Peoples Agenda provide only conclusory allegations regarding the alleged injury they have suffered. The organizational Plaintiffs allege that they have expended and continue to expend substantial time and resources in an effort to make voter registration available, which they allege would not have been necessary had Defendants complied with the law. Am. Compl. 4, 45-47, 49-51. Plaintiffs have not alleged a sufficiently particularized injury that is fairly traceable to any challenged action of the Defendants and therefore they cannot satisfy the causation requirement of standing. Common Cause, 554 F.3d at 1349; Cox, 408 F.3d at 1352-53. Plaintiffs allege that voter registrations have declined from public assistance offices, while applications have increased in the same period of time in Ohio and 13
Case 1:11-cv-01849-CAP Document 25-1 Filed 08/10/11 Page 14 of 27 Missouri. Am. Compl. 26-28, 31. But if Plaintiffs claims regarding remote applications for assistance (as opposed to in-person applications) are dismissed, see infra at p. 21, any causation falls as well. Ohio and Missouri have adopted policies of offering NVRA-related services to remote applicants. 5 See Defendants Exhibits 14 at 8 and 15 at 2 respectively. Perhaps voter registrations have declined as a result of Georgia s limitation of NVRA services to in-person applicants as more applicants prefer to apply remotely. But Plaintiffs have standing to complain only of injuries caused by violations of the law, and the NVRA does not require Georgia to offer NVRA services to remote applicants. Accordingly, regardless of whether decreased voter registrations injure the organizational plaintiffs, any such injury is caused by changing practices of applicants for public services not by a violation of the NVRA. To have Article III standing to pursue injunctive relief, even against violations of the Constitution, a plaintiff must have more than a merely hypothetical grievance: he or she must have an injury in fact that is capable of being redressed by the injunction. Virdi v. Dekalb County Sch. Dist., 216 Fed. Appx. 867, 871 (11th Cir. 2007) (quoting Los Angeles v. Lyons, 461 U.S. 95, 101, 5 It should be noted that Plaintiffs appear to use the terms application and registration somewhat interchangeably in comparing application numbers from Ohio and Missouri to registration numbers from Georgia. Am. Compl. 26-31. Comparing applications with registrations compares peaches with buckeyes; registration is a completed application that has been accepted, and thus applications will always substantially outnumber registrations. 14
Case 1:11-cv-01849-CAP Document 25-1 Filed 08/10/11 Page 15 of 27 (1983)). Additionally, the objectionable DHS policies that may have contributed to a decrease in voter registration have been corrected. Past wrongs are insufficient to show an entitlement to an injunction against future wrongs. Moreover, standing is a jurisdictional bar. Virdi, 216 Fed. Appx. at 871 (quoting Lyons at 871). B. Plaintiffs Claims Should Be Dismissed Based On Their Failure To Provide Adequate Notice As Required Under Section 11 Of The NVRA. The claims by Peoples Agenda and Murphy and some of the claims by the NAACP should be dismissed because they failed to comply with the notice requirements set forth in Section 11 of the NVRA. Section 11 requires that any aggrieved person seeking relief under the Act must provide written notice of the violation to the chief election official of the State involved, before initiating a civil enforcement action. 42 U.S.C. 1973gg-9(b)(1). [T]he aggrieved person is authorized to bring suit with respect to the violation only [i]f the violation is not corrected within ninety (90) days after receipt of a notice. 42 U.S.C. 1973gg-9(b)(2). This statutory requirement is simple: A person must provide notice of a violation, and that person may sue for that violation only if uncorrected. There is no statutory provision allowing any person who has not provided notice to sue, nor is there any provision allowing even a person who provided notice to sue about alleged violations not included in the notice. 15
Case 1:11-cv-01849-CAP Document 25-1 Filed 08/10/11 Page 16 of 27 This requirement provides states with an opportunity to attempt compliance before facing litigation. ACORN v. Miller, 129 F.3d 833, 838 (6 th Cir. 1997) (finding notice unnecessary where Governor of defendant state issued executive order prohibiting state from complying with NVRA). If notice was optional, the 90-day cure period would be superfluous. Broyles v. Texas, 618 F. Supp. 2d 661, 692 (S.D. Tex. 2009) (dismissing claim brought under the NVRA because no notice had been given prior to the lawsuit being filed). At most, the NAACP s January 25, 2011 letter contained notice of three alleged violations of Section 7: 1. Georgia is systematically failing to provide the voter registration services required under the NVRA at its public assistance offices: 2. O.C.G.A. 21-2-222(f) does not comply with the NVRA because it limits voter registration services to inperson transactions; and 3. DHS internal policies do not comply with the NVRA because they provide that once an applicant or recipient declined an offer to vote in writing the agency was no longer required to offer voter registration services. Defendants Exhibit 1. The NAACP did not amend its notice at any time during the 90-day notice period. Therefore, any other claims asserted in Plaintiffs Amended Complaint should be dismissed for failure to provide Defendants with notice as required under Section 11. 16
Case 1:11-cv-01849-CAP Document 25-1 Filed 08/10/11 Page 17 of 27 With regard to the first claim contained in their January 25, 2011 notice, the NAACP refused to provide Defendants with any specific information regarding the investigation they conducted of the eleven public assistance offices; in fact, they did not even identify the offices until February 25, 2011. Therefore, Defendants never were given an adequate basis upon which to investigate possible violations. The second claim set forth in Plaintiffs notice letter alleges that O.C.G.A. 21-2-222(f)(1) violates Section 7. This claim presents a pure question of law, which must be decided by the Court to the extent that Plaintiffs still assert it the Code section never appears in Plaintiffs Amended Complaint. The third claim asserted by Plaintiffs in their notice was that DHS internal policies violated Section 7. Defendants acknowledge that they received sufficient notice and sufficient information from the NAACP in order to respond to the issue raised in the NAACP s notice. However, as discussed in Section C infra, that claim is now moot because Defendants have resolved it. Plaintiff Peoples Agenda never provided notice to Secretary Kemp of any alleged violation of the NVRA prior to initiating this lawsuit. Rather, on the Friday before the lawsuit was filed on Monday, June 6, 2011, the NAACP sent a letter to Secretary Kemp advising him that a lawsuit would be filed imminently and that the NAACP would be joined in that lawsuit by the Peoples Agenda. [Doc. 1]. Peoples Agenda not only failed to meet the 90-day notice requirement, 17
Case 1:11-cv-01849-CAP Document 25-1 Filed 08/10/11 Page 18 of 27 but that organization also failed to identify any alleged NVRA violation by the State. See Defendants Exhibit 7. The requirement of notice prior to exercising a private right of action for enforcement of the NVRA does not mean that one organization can give notice and then have any number of additional organizations somehow claim credit for that notice and join in the filing of a lawsuit. In their Amended Complaint, Plaintiffs have added Craig Murphy as an individual Plaintiff. [Doc. 15]. Murphy also never provided Defendants with any notice prior to filing suit. The NAACP never put Defendants on notice of Murphy s claims or the claims of any other individuals. See Defendants Exhibits 1, 3, 5 and 7. Murphy is not alleged to be a member of the NAACP or otherwise related to anything contained in the NAACP s notice. Accordingly, his claims should be dismissed for failure to satisfy the notice requirement. Finally, Plaintiffs claim that O.C.G.A. 21-2-222(g) violated Section 7 should be dismissed because Plaintiffs did not raise any issues related in any way to this Code section at any point in pre-litigation correspondence. C. Plaintiffs Claims Are Moot. Plaintiffs allege that two internal DHS policies issued in August 2009 were contrary to the requirements of the NVRA. Defendants Exhibits 8 and 9. However, both of those policies have since been revised, and Plaintiffs claims are moot. 18
Case 1:11-cv-01849-CAP Document 25-1 Filed 08/10/11 Page 19 of 27 A claim that a case is moot involves the basic determination of justiciability of plaintiffs claims and, as such, should be decided under Fed.R.Civ.P. 12(b)(1). Nat'l Ass'n of Bds. of Pharm. v. Bd. of Regents, 633 F.3d 1297, 1308 (11 th Cir. 2011). Although [g]enerally, the party asserting mootness bears the heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again, 633 F.3d at 1310 (citations and quotations omitted), the government enjoys a rebuttable presumption that the objectionable behavior will not recur. Id. [T]he Supreme Court has held almost uniformly that voluntary cessation [by a government defendant] moots the claim. Id. (citations and quotations omitted). The two policies, which were issued by the Medicaid and TANF programs in August 2009, included a statement that once an applicant or recipient declined an offer to vote in writing the agency was no longer required to offer voter registration services. Defendants Exhibit 8 at 1; Exhibit 9 at 3. This revision was contrary to the NVRA, which requires that an applicant or recipient be offered voter registration services when applying, recertifying, renewing, or making a change of address. 42 U.S.C. 1973gg-5(a)(6). The Medicaid policy was corrected three months later in November 2009 and before Defendants received any notice from the NAACP. Defendants Exhibit 10. The TANF policy was corrected by the DHS memorandum issued on April 21, 19
Case 1:11-cv-01849-CAP Document 25-1 Filed 08/10/11 Page 20 of 27 2011. Defendants Exhibit 11. Additionally, DHS recently submitted proposed revised voter registration policies to DOJ for preclearance. Defendants Exhibit 12. As a state government, Defendants are entitled to the rebuttable presumption that no further violations will recur with regard to DHS internal voter registration policies. Nat'l Ass'n of Bds. of Pharm., 633 F.3d at 1308. DHS actions demonstrate that the agency intended and intends to comply with its legal obligations under the NVRA and took immediate corrective action as soon as it received notice from the NAACP. Id. at 1310. Based on DHS April 21, 2011 memorandum, and DHS proposed revised policies, which will update the current TANF policy, Plaintiffs claim that DHS voter registration policies violate Section 7 is moot and should be dismissed. Id. Plaintiff Murphy s claim is also moot. Murphy alleges that despite visiting certain DHS offices several times for food stamp-related services, he was never offered voter registration services. Complaint, 52-60. However, because Murphy failed to comply with the statutorily required notice provision, Defendants only just received notice of Plaintiff Murphy s claim when the Amended Complaint was filed July 13, 2011. Even though Murphy s claim is subject to dismissal for failure to provide notice, in the interests of curing the alleged violation as the NVRA intends, Defendants mailed a voter registration form to 20
Case 1:11-cv-01849-CAP Document 25-1 Filed 08/10/11 Page 21 of 27 Murphy through his attorneys on August 3, 2011. Defendants Exhibit 13. Based on Defendants actions, Plaintiff Murphy s claim is now moot. D. O.C.G.A. 21-2-222(f), Which Limits Voter Registration Services At Public Assistance Offices To In-Person Transactions, Complies With The NVRA. Plaintiffs may allege that Georgia law does not comply with the NVRA because only those participating in a covered transaction who appear in person at public assistance offices are offered the opportunity to vote. Am. Compl. 18. 6 Plaintiffs claim ignores the plain language of both the state and federal statutes, which both explicitly state that limitation. Section 4 of the NVRA provides in pertinent part that notwithstanding any other Federal or State law... each State shall establish procedures to register to vote in elections for Federal office... by application in person... at a Federal, State, or nongovernmental office designated under section 7 [42 USCS 1973gg-5]. Georgia law incorporates the language from 42 U.S.C. 1973(b)(3)(B) to provide that voter registration applications shall be distributed each time an applicant or recipient makes an application, recertification, renewal or change of 6 Plaintiffs first complaint directly asserted this claim. See Complaint, 31 and 36. [Doc. 1]. This claim has not been similarly asserted in Plaintiffs amended complaint. However, Defendants address it here out of an abundance of caution. 21
Case 1:11-cv-01849-CAP Document 25-1 Filed 08/10/11 Page 22 of 27 address in person at a public assistance office unless the applicant declines in writing to register to vote. O.C.G.A. 21-2-222(f)(1). In interpreting the meaning of a statute, the Court must assume that Congress used the words of the statute as they are commonly and ordinarily understood and must construe the statute so each provision is given full effect. United States v. McLymont, 45 F.3d 400, 401 (11 th Cir. 1995). The Eleventh Circuit has repeatedly distinguished between in person and telephone contacts. See e.g. United States v. Lee, 603 F.3d 904, 908-910, 921 (11th Cir. 2010) (distinguishing between meeting in person and telephone contact); Angiolillo v. Collier County, 394 Fed. Appx. 609, 613 (11th Cir. 2010) (restraining order barred contact in person or by phone ). This distinction is similarly recognized in the Federal Rules of Civil Procedure. F.R.C.P. 30(b)(4) provides that the parties may stipulate, or the court may order, that a deposition be taken by telephone or other remote means. However, in general, most depositions are conducted in person. See Norelus v. Denny's, Inc., 628 F.3d 1270, 1278 (11th Cir. 2011) (plaintiff attended the deposition in that case in person ). Section 4 provides for application in person at designated state offices, which includes public assistance offices. There is no language in Section 7 or any other Section of the NVRA that suggests that voter registration services are to be provided in any manner other than in person. To read the NVRA to require 22
Case 1:11-cv-01849-CAP Document 25-1 Filed 08/10/11 Page 23 of 27 states to provide anything other than application[s] in person would not give full effect to the phrase in person as set forth in Section 2. McLymont, 45 F.3d at 401. Absent an indication that applying the plain language of a statute would yield patent absurdity, [the Court s] obligation is to apply the statute as Congress wrote it. Robbins v. Chronister, 402 F.3d 1047, 1050 (10th Cir. 2005). There is no language elsewhere in the NVRA that supports a different reading. See also TRW, Inc. v. Andrews, 534 U.S. 19, 31 (2001) ( It is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant ) (internal quotation marks omitted). The Georgia legislature simply adopted the in person language from Section 4 into its law into O.C.G.A. 21-2-222(f)(1). Accordingly, this provision does not violate the NVRA. D. O.C.G.A. 21-2-222(g) Is Consistent With The NVRA. As discussed in above, Plaintiffs claim that O.C.G.A. 21-2-222(g) violates Section 7 should be dismissed because Plaintiffs did not include this claim in their pre-litigation notice as required under Section 11. However, even if the Court does not dismiss the claim on that basis, Plaintiffs claim is without merit. 23
Case 1:11-cv-01849-CAP Document 25-1 Filed 08/10/11 Page 24 of 27 O.C.G.A. 21-2-222(g) provides that: If an applicant fails to check any box on the form required by subparagraph (f)(2)(c) of this Code section, the applicant shall be deemed to have declined to apply to register to vote. The language in this Code section mirrors a provision contained in Section 7. 42 U.S.C. 1973gg-5(a)(6)(B)(iii) ( failure to check either box [shall be] deemed to constitute a declination to register... ). Georgia s 1994 laws track almost verbatim the language set forth in Section 7. The declaration statement form created by the Georgia Secretary of State s Office complies with all of the requirements set forth in 42 U.S.C. 1973gg-5(a)(6)(B). O.C.G.A. 21-2-222(g) is essentially copied from 42 U.S.C. 1973gg-5(a)(6)(B)(iii) and substantively has no difference in meaning. Therefore, Plaintiffs argument that O.C.G.A. 21-2-222(g) fails to comply with Section 7 is without merit. CONCLUSION Based on the foregoing argument and citation of authority, Defendants respectfully submit that the Plaintiffs Complaint should be dismissed in its entirety and all costs case against the Plaintiffs. 24
Case 1:11-cv-01849-CAP Document 25-1 Filed 08/10/11 Page 25 of 27 Respectfully submitted, SAMUEL S. OLENS 551540 Attorney General DENNIS R. DUNN 234098 Deputy Attorney General STEFAN RITTER 606950 Senior Assistant Attorney General Please address all communications to: JULIA B. ANDERSON Senior Assistant Attorney General 40 Capitol Square, S.W. Atlanta, Georgia 30334-1300 (404) 463-3630 FAX (404) 657-9932 _/s/ Julia B. Anderson JULIA B. ANDERSON 017560 Senior Assistant Attorney General 25
Case 1:11-cv-01849-CAP Document 25-1 Filed 08/10/11 Page 26 of 27 CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing BRIEF IN SUPPORT OF MOTION TO DISMISS AMENDED COMPLAINT with the Clerk of Court using the CM/ECF system which will automatically send email notification of such filing to the following attorneys of record and by mailing by regular first class mail to those attorneys not currently admitted pro hac vice. The attorneys who are being served by mail are indicated with an asterisk. Moffatt Laughlin McDonald ACLU Foundation Voting Rights Project 230 Peachtree Street, NW Suite 1440 Atlanta, GA 30303-1504 Nancy Gbana Abudu ACLU Southern Regional Office Suite 1440 230 Peachtree Street Atlanta, GA 30303 Neil A. Steiner * Robert W. Topp DECHERT LLP 1095 Avenue of the Americas New York, New York 10036 Nicole K. Zeitler Niyati Shah PROJECT VOTE 737 1/2 8 th Street SE Washington, DC 20003
Case 1:11-cv-01849-CAP Document 25-1 Filed 08/10/11 Page 27 of 27 Robert A. Kengle Mark A. Posner LAWYERS COMMITTEE FOR CIVIL RIGHTS UNDER LAW 1401 New York Avenue, N.W., Suite 400 Washington, D.C. 20005 Brenda Wright DEMOS: A NETWORK FOR IDEAS AND ACTION 358 Chestnut Hill Avenue, Suite 303 Brighton, Massachusetts 02135 Allegra Chapman DEMOS: A NETWORK FOR IDEAS AND ACTION 220 Fifth Avenue, 5th Floor New York, New York 10001 Kim Keenan * Anson Asaka NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC. NAACP National Office 4805 Mt. Hope Drive Baltimore, MD 21215 This 10 th day of August 2011. /s/ Julia B. Anderson JULIA B. ANDERSON Senior Assistant Attorney General 2
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