Case 4:05-cv-00201-HLM Document 131 Filed 07/20/2006 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ROME DIVISION COMMON CAUSE / GEORGIA, ) et al., ) ) Plaintiffs, ) CIVIL ACTION NO. v. ) 4:05-CV-201-HLM ) MS. EVON BILLUPS, Superintendent ) of Elections for the Board of Elections ) and Voter Registration for Floyd ) County and the City of Rome, Georgia, ) et al., ) ) Defendants. ) STATE DEFENDANTS OBJECTIONS TO MOTION FOR ADMISSION OF PLAINTIFFS EXHIBITS 5-15 COME NOW CATHY COX AND THE STATE ELECTION BOARD ( State Defendants ), and in accordance with the Court s Order of July 17, 2006, file their objections to Motion for Admission of Plaintiffs Exhibits 5-15 ( Plaintiffs Motion ) as follows: I. INTRODUCTION On July 12, 2006, the Court conducted a hearing on Plaintiffs Motion for Preliminary Injunction. At the commencement of the hearing, Plaintiffs tendered exhibits 1-3, to which the State Defendants stipulated. During the hearing, Plaintiffs referenced additional exhibits,
Case 4:05-cv-00201-HLM Document 131 Filed 07/20/2006 Page 2 of 9 numbered 5-15. Plaintiffs did not move the admission of those exhibits. The evidence closed, and the Court issued its ruling from the bench. The following day, Plaintiffs counsel contacted counsel for the State Defendants and requested the latter s consent to include Exhibits 5-15 in the record. Because counsel for the State Defendants would not have raised objections to Exhibits 5-12 or 15, they consented to the admission of those exhibits. However, counsel for State Defendants advised Plaintiffs counsel that they would have raised objections to Exhibits 13 and 14 if those had been tendered and requested an opportunity from the Court to state those objections. State Defendants have determined that they have no objection to the admission of Plaintiffs Exhibit 13 and consent to the same. State Defendants object to the admission of Plaintiffs Exhibit 14 and request that their objection be sustained. II. OBJECTION Plaintiffs allege that Exhibit 14 is a photocopy of the data match prepared by the Secretary of State s office and comparing the list of registered voters with the data base of driver s licenses maintained by the Department of Driver s Services, and delivered to Plaintiffs counsel pursuant to an open records request. There is absolutely no evidence in the 2
Case 4:05-cv-00201-HLM Document 131 Filed 07/20/2006 Page 3 of 9 record to support Plaintiffs contentions that Exhibit 14 is a photocopy of the data match or that it makes the comparison that Plaintiffs counsel alleges. The exhibit was never authenticated, the information contained therein is rank hearsay, and no exception supports its admission into the record. Furthermore, the use of Exhibit 14 to impeach Mr. McIver, to the extent that Plaintiffs even attempts to do so, does not justify its admission into the record. As an initial matter, no witness identified or authenticated the document Plaintiffs claim is a photocopy of the data match. Plaintiffs requested that State Defendants produce two witnesses at the hearing: Secretary of State Cathy Cox and Gary Cooley, an employee of the Georgia Technology Authority who was involved in activity of the database comparison. Although Ms. Cox brought with her Exhibit 14 as requested by Plaintiffs attorneys, Plaintiffs counsel never attempted to identify or authenticate the exhibit through her or to lay a foundation for an exception to the hearsay rule. 1 Furthermore, Plaintiffs counsel elected to rest without calling Mr. Cooley and attempting to lay a foundation for the admission of 1 Even if there had been such an attempt, State Defendants would have objected. Secretary Cox had already testified in her declaration that she did not participate in the performance of the database comparison and had no personal knowledge about what constituted a match. 2 nd Cox Decl., 5, 6; Transcript of July 12, 2006 hearing at 34-5. 3
Case 4:05-cv-00201-HLM Document 131 Filed 07/20/2006 Page 4 of 9 Exhibit 14 with his testimony. Ultimately, Plaintiffs referenced Exhibit 14 during the cross-examination of Mr. McIver but never attempted to have him identify or authenticate it. (Transcript of July 12, 2006 hearing at 140-2). Plaintiffs now contend that the exhibit should be admitted either under Fed. R. Evid. 803(8) as a public record or as a document used to impeach Mr. McIver. It should not be admitted on either ground. First, Exhibit 14 is hearsay and not admissible under any exception. The exhibit is an out of court statement that Plaintiffs are attempting to use to establish the number of registered voters by the age, sex and race categories listed who lack a Georgia driver s license or DDS-issued identification card. Plaintiffs do not attempt to explain how the document meets the requirements of subparts (A), (B) or (C) of Fed. R. Evid. 803(8) and thus should be deemed reliable by those standards. As an initial matter, there is no evidence at all as to what Exhibit 14 is or purports to be. It does not set forth the activities of the office or agency under Fed. R. Evid. 803(8)(A). It certainly does not set forth matters observed pursuant to a duty imposed by law as to which matters there was a duty to report... under Fed. R. Evid. 803(8)(B). 4
Case 4:05-cv-00201-HLM Document 131 Filed 07/20/2006 Page 5 of 9 Finally, the document does not qualify as a public record or report under Fed. R. Evid. 803(8)(C) for two reasons. First, there is no proof that it is the factual findings resulting from an investigation made pursuant to authority granted by law, as is required. Second, even if it met that standard (which it does not), the evidence could still be excluded if the sources of information or other circumstances indicate a lack of trustworthiness. Fed. R. Evid. 803(8)(C). The record contains numerous examples of the errors in the database comparison. See, e.g., Declarations of Alisa Heiman Aczel; Virginia Balfour; Merideth Lynne Blackburn; Shiriki Lean Cavitt; Cynthia Hinrichs Clanton; Ruby J. Kajumba; Bradley J. Lewis; Mary R. McCauley; Jeffrey W. Mueller; Jeff E. Mullis; Stefan Passantino; Oscar N. Persons; Joel M. Rainer; Joan M. Ransom; Hank Richardson; DeWitt R. Rogers; and Shereen M. Walls (attached as Tabs M-BB to State Defs. Appendix of Exhibits). Therefore, Exhibit 14, based on the flawed comparison, cannot be deemed trustworthy and should not be admitted under Fed. R. Evid. 803(8). Hines v. Brandon Steel Decks, Inc., 886 F.2d 299, 302 (11th Cir. 1989) ( Rule 803(8)(C) allows into evidence public reports that (1) set forth factual findings (2) made pursuant to authority granted by law (3) that the judge finds trustworthy. In addition, public reports, otherwise admissible under 5
Case 4:05-cv-00201-HLM Document 131 Filed 07/20/2006 Page 6 of 9 Rule 803(8)(C), may nonetheless be excluded in whole or in part if the trial court finds that they are either irrelevant or more prejudicial than probative. ), citing Beech Aircraft v. Rainey, 488 U.S. 153, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988) and United States v. MacDonald, 688 F.2d 224, 230 (4th Cir.1982), cert. denied, 459 U.S. 1103, 103 S.Ct. 726, 74 L.Ed.2d 951 (1983). Finally, Exhibit 14 is not admissible simply because Plaintiffs contend that they used it to impeach Mr. McIver. As an initial matter, the document was not used, as Plaintiffs contend, to impeach Mr. McIver s testimony... that he was advised that the data base of registered voters was purged for deaths most recently in March, 2006, Plaintiffs Motion, p.2. According to Plaintiffs Motion, Mr. McIver s testimony was that he had been advised that the purge for deceased voters had not been done since March. Plaintiffs Motion, p. 2. To impeach or attack Mr. McIver s credibility on that point, Plaintiffs would have needed to produce prior statements Mr. McIver had made to the contrary. Fed. R. Evid. 612. Instead, Plaintiffs attempt to use an entry at the top of Exhibit 14, a document that is clearly hearsay, to impeach Mr. McIver s testimony. It is clear that Plaintiffs are simply trying to get the hearsay that is Exhibit 14 including the notation about the purge of deceased voters into evidence any way possible. 6
Case 4:05-cv-00201-HLM Document 131 Filed 07/20/2006 Page 7 of 9 Even if the Court were to allow Exhibit 14 into the record to impeach Mr. McIver s testimony regarding his knowledge of the last time the Secretary of State s office had purged deceased voters, it should not be admitted for any other purpose. See Macuba v. Deboer, 193 F.3d 1316, 1325 (11th Cir. 1999)( even though the statements made to Leonard might be admissible to impeach Forgey (if he testified), they would not be admissible as substantive evidence ); McMillian v. Johnson, 88 F.3d 1573, 1584 (11th Cir. 1996) ( impeachment evidence is not substantive evidence of the truth of the statements... ). It provides no substantive evidence and should not be relied upon to prove the truth of any matter. Otherwise, Plaintiffs would be allowed to avoid the hearsay rule via impeachment. III. CONCLUSION For the foregoing reasons, State Defendants request that the Court exclude Plaintiffs Exhibit 14 from the record. State Defendants consent to the admission of Plaintiffs Exhibit 13. Local Rule 7.1D Certification By signature below, counsel certifies that the foregoing document was prepared in Times New Roman, 14-point font in compliance with Local Rule 5.1C. This 20th day of July, 2006. 7
Case 4:05-cv-00201-HLM Document 131 Filed 07/20/2006 Page 8 of 9 Respectfully submitted, THURBERT E. BAKER Attorney General Georgia Bar No. 033887 Department of Law DENNIS R. DUNN State of Georgia Deputy Attorney General 40 Capitol Square, S.W. Georgia Bar No. 234098 Atlanta, GA 30334-1300 Telephone: 404/656-7298 STEFAN E. RITTER Facsimile: 404/657-9932 Senior Assistant Attorney General dennis.dunn@law.state.ga.us Georgia Bar No. 606950 Troutman Sanders LLP /s/ Mark H. Cohen 5200 Bank of America Plaza MARK H. COHEN 600 Peachtree Street, N.E. Special Assistant Attorney General Atlanta, GA 30308 Georgia Bar No. 174567 Telephone: 404/885-3597 Facsimile: 404/962-6753 mark.cohen@troutmansanders.com Strickland Brockington Lewis LLP /s/ Anne W. Lewis Midtown Proscenium, Suite 2000 ANNE W. LEWIS 1170 Peachtree Street, N.E. Special Assistant Attorney General Atlanta, GA 30309 Georgia Bar No. 737490 Telephone: 678/347-2200 Facsimile: 678-347-2210 awl@sbllaw.net 8
Case 4:05-cv-00201-HLM Document 131 Filed 07/20/2006 Page 9 of 9 CERTIFICATE OF SERVICE The undersigned hereby certifies that the within and foregoing STATE DEFENDANTS OBJECTIONS TO MOTION FOR ADMISSION OF PLAINTIFFS EXHIBITS 5-15 was electronically filed with the Clerk of Court using the CM/ECF system, which will automatically send email notification of such filing to counsel of record for Plaintiffs. The undersigned also certifies that the within and foregoing document was served by email to the following non-cm/ecf participants: H. Boyd Pettit, III hbpettit@bellsouth.net Peter Olson polson@jnlaw.com This 20th day of July, 2006. /s/ Anne W. Lewis ANNE W. LEWIS 9