A. Philip Randolph Institute, et al v. Jon Husted

Filing 29

AMICUS BRIEF filed by Vikram Swaruup, United States, federal/state government.. Certificate of Service:07/18/2016. (VS)

No. 16-3746

IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

OHIO A. PHILIP RANDOLPH INSTITUTE, et al.,
Plaintiffs-Appellants
v.
JON HUSTED,
Defendant-Appellee
_________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
_________________
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
SUPPORTING PLAINTIFFS-APPELLANTS AND URGING REVERSAL
_________________

BENJAMIN C. GLASSMAN
Acting United States Attorney for the
Southern District of Ohio

VANITA GUPTA
Principal Deputy Assistant
Attorney General

CAROLE S. RENDON
United States Attorney for the
Northern District of Ohio

TOVAH R. CALDERON
VIKRAM SWARUUP
Attorneys
Department of Justice
Civil Rights Division
Appellate Section – RFK 3730
Ben Franklin Station
P.O. Box 14403
Washington, D.C. 20044-4403
[phone]

TABLE OF CONTENTS
PAGE
IDENTITY AND INTEREST OF THE AMICUS CURIAE
AND THE SOURCE OF ITS AUTHORITY TO FILE THIS BRIEF...................... 1
ISSUE PRESENTED .................................................................................................3
STATEMENT OF THE CASE ..................................................................................4
A.

Factual Background .............................................................................. 4

B.

Procedural History ................................................................................6

SUMMARY OF ARGUMENT ................................................................................. 8
ARGUMENT
THE NVRA AND HAVA PROHIBIT STATES FROM USING
FAILURE TO VOTE ALONE TO TRIGGER THE SECTION 8(d)
CONFIRMATION PROCESS FOR REMOVING VOTERS FROM
REGISTRATION ROLLS BASED ON A CHANGE
OF RESIDENCE ...........................................................................................11
A.

Statutory Background And Agency Guidance ..........................11

B.

A Voter’s Mere Failure To Vote Is Insufficient To Trigger
The Section 8(d) Confirmation Process ....................................16

CONCLUSION ........................................................................................................30
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
ADDENDUM

TABLE OF AUTHORITIES
CASES:

PAGE

Association of Cmty. Orgs. for Reform Now v. Miller,
129 F.3d 833 (6th Cir. 1997) .........................................................................12
Bell v. Marinko, 367 F.3d 588 (6th Cir. 2004) ........................................................11
Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1 (2011) ...............16
Reno v. Bossier Parish Sch. Bd., 520 U.S. 471 (1997) ............................................. 3
United States v. Jicarilla Apache Nation,
564 U.S. 162 (2011)................................................................................. 23-24
United States Student Ass’n Found. v. Land, 546 F.3d 373
(6th Cir. 2008) ...............................................................................................16
Welker v. Clarke, 239 F.3d 596 (3d Cir. 2001) ................................................. 27-29
STATUTES:
Help America Vote Act of 2002,
52 U.S.C. 20901 et seq. ...................................................................................1
52 U.S.C. 21083(a)(2)(A)(i) ..........................................................................14
52 U.S.C. 21083(a)(4)(A) ....................................................................... 15, 23
52 U.S.C. 21083(b)(4)(a)(iv) .........................................................................14
52 U.S.C. 21111...............................................................................................1
52 U.S.C. 21145(a) ........................................................................................22
52 U.S.C. 21145(a)(4) ........................................................................ 9, 12, 14
National Voter Registration Act of 1993,
52 U.S.C. 20501 et seq. ...................................................................................1
52 U.S.C. 20501(b) ........................................................................................11
52 U.S.C. 20507...............................................................................................4
52 U.S.C. 20507(a)(3) ............................................................................. 11-12
52 U.S.C. 20507(a)(4) ...............................................................................9, 12
52 U.S.C. 20507(a)(4)(B) ........................................................................ 16-19
52 U.S.C. 20507(b)(1) ...................................................................................12
- ii -

STATUTES (continued):
52 U.S.C. 20507(b)(2) ...................................................................... 12, 15, 21
52 U.S.C. 20507(c) ..........................................................................................9
52 U.S.C. 20507(c)(1)(A) ....................................................................... 13, 19
52 U.S.C. 20507(c)(1)(B)(i) ..........................................................................13
52 U.S.C. 20507(c)(1)(B)(ii) .................................................................. 13, 17
52 U.S.C. 20507(d)(1) ...................................................................................13
52 U.S.C. 20507(d)(1)(A)..............................................................................17
52 U.S.C. 20507(d)(2) ...................................................................................13
52 U.S.C. 20510...............................................................................................1
LEGISLATIVE HISTORY:
H.R. Rep. No. 9, 103d Cong., 1st Sess. (1993) .................................................10, 28
H.R. Rep. No. 730, 107th Cong., 2d Sess. (2002) (Conf. Rep.) ..............................22
S. Rep. No. 6, 103d Cong., 1st Sess. (1993) ................................................10, 19, 28
RULES:
Fed. R. App. P. 29(a) .................................................................................................1
MISCELLANEOUS:
Confirm Definition, Black’s Law Dictionary (10th ed. 2014) .................................18
Department of Justice, The National Voter Registration Act of 1993 (NVRA),
https://www.justice.gov/crt/national-voter-registration-act-1993-nvra
(last visited July 5, 2016) ........................................................................passim

- iii -

IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
No. 16-3746
OHIO A. PHILIP RANDOLPH INSTITUTE, et al.,
Plaintiffs-Appellants
v.
JON HUSTED,
Defendant-Appellee
_________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
_________________
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
SUPPORTING PLAINTIFFS-APPELLANTS AND URGING REVERSAL
_________________
IDENTITY AND INTEREST OF THE AMICUS CURIAE
AND THE SOURCE OF ITS AUTHORITY TO FILE THIS BRIEF
The United States files this brief under Federal Rule of Appellate Procedure
29(a).
This case presents important questions regarding interpretation of the
National Voter Registration Act of 1993 (NVRA), 52 U.S.C. 20501 et seq., and the
Help America Vote Act of 2002 (HAVA), 52 U.S.C. 20901 et seq., both of which
the Attorney General has authority to enforce. See 52 U.S.C. 20510 (NVRA),
21111 (HAVA).

-2The Department of Justice issued guidance under the NVRA in 2010. That
guidance addresses the precise issue presented in this case and articulates the
Department’s position that States must have reliable evidence indicating a voter’s
change of address before they initiate the NVRA-prescribed process to cancel the
voter’s registration based on a change of residence. See Department of Justice,
The National Voter Registration Act of 1993 (NVRA), https://www.justice.gov/crt/
national-voter-registration-act-1993-nvra (last visited July 18, 2016) (NVRA
Guidance).
The Department recently filed a Statement of Interest articulating this
interpretation in a Georgia case that raises the same issue confronted here. See
Common Cause v. Kemp, No. 16-452 (N.D. Ga. May 4, 2016) (ECF No. 19)
(Attachment 1). Appellants in this case discuss the Statement of Interest in their
opening brief, and the parties addressed it in their briefing below. See Appellants’
Opening Brief 33-34; (Plaintiffs’ Motion for Summary Judgment, RE 39, PageID#
1400-1401); (Defendant’s Second Merits Brief, RE 49, PageID# 22337-22339);
(Defendant’s Third Merits Brief, RE 56, PageID# 22727-22730).
The Department’s longstanding interpretation of the NVRA is set forth in a
number of enforcement actions and other public documents, including: (1) a 1994
letter to Georgia objecting, based on NVRA noncompliance, to a statute that was
submitted for preclearance under Section 5 of the Voting Rights Act (Attachment

-32)1; (2) 1994 litigation against Pennsylvania, see Mot. for Summary Judgment at
14-18, United States v. Pennsylvania, Nos. 95-382, 94-7671 (E.D. Pa. Aug. 7,
1996) (Attachment 3); (3) 1995 litigation against California, see Mot. for Further
Relief at 5-9, Wilson v. United States, Nos. 95-20042, 94-20860 (N.D. Cal. Oct.
23, 1997) (Attachment 4); (4) 1997 notice-of-intent-to-sue letters to Alaska and
South Dakota (Attachments 5 & 6); and (5) a 2007 court-approved agreement with
Cibola County, New Mexico, see Amended Joint Stipulation ¶ 13, United States v.
Cibola Cnty., No. 93-1134 (D. N.M. Jan. 31, 2007; approved by court Mar. 19,
2007) (Attachment 7).
The United States therefore has a strong interest in the resolution of this
appeal.
ISSUE PRESENTED
The NVRA and HAVA require removal of a voter from the voter
registration list when the voter has become ineligible to vote due to a change of
residence, but only after the State has confirmed the move. Both statutes also
expressly forbid the removal of voters based on failure to vote. The United States
will address only the following issue:
1

Following the Supreme Court’s decision in Reno v. Bossier Parish School
Board, 520 U.S. 471 (1997), which held that a violation of Section 2 of the Voting
Rights Act could not independently support an objection under Section 5, the
Department no longer denies preclearance based on failure to comply with
statutory provisions other than Section 5, including the NVRA.

-4Whether Ohio’s Supplemental Process for removing ineligible voters based
on a change of residence violates the NVRA’s and HAVA’s prohibition on
removing voters for failure to vote by relying solely on a voter’s inactivity, rather
than on reliable evidence of a move, to trigger the statutory process for removing
such voters from the rolls.
STATEMENT OF THE CASE
A.

Factual Background
This case is about the process States use to remove ineligible voters, such as

voters who have moved outside the jurisdiction, from their rolls. The NVRA
requires States to undertake voter list maintenance but also creates limitations on
these processes to ensure that they do not arbitrarily or erroneously remove voters.
See 52 U.S.C. 20507.
Ohio uses two separate programs to remove voters who may have changed
residences. (Order, RE 66, PageID# 23007). First, Ohio uses the United States
Postal Service’s change-of-address database to identify voters who have moved
and to trigger the process that ultimately removes voters whom the State confirms
are ineligible. (Order, RE 66, PageID# 23007-23008). Ohio’s use of that program
is not at issue here. Second, Ohio uses a “Supplemental Process,” which is at
issue. Under the Supplemental Process, boards of elections compile lists of

-5individuals who have not engaged in any voter activity for two years. 2 Ohio then
assumes these voters have moved and begins the process that can lead to their
removal from the voter rolls. (Order, RE 66, PageID# 23008).
The voters whom Ohio identifies through either the Postal Service program
or the Supplemental Process are sent a confirmation notice. (Order, RE 66,
PageID# 23007-23008). The confirmation notice requires the voter to either
confirm her address or provide a new address. (Order, RE 66, PageID# 23008). If
an individual confirms her address or provides a new address, her registration
remains active and, if necessary, the appropriate board of elections updates the
registration record. (Order, RE 66, PageID# 23009). If, however, the voter does
not return the confirmation notice, then the individual is marked as “inactive” in
the registration database. (Order, RE 66, PageID# 23009). Inactive voters have all
the rights of active voters but are not counted for various election administration
procedures (such as the number of ballots printed or the allocation of polling
places). (Amended Complaint, RE 37, PageID# 230).

2

The Supplemental Process does not precisely define what constitutes voter
activity. Ohio contends that in addition to voting or filing a voter registration
form, filing a change of address through a state agency may also be considered
“voter activity.” (Defendant’s Initial Merits Brief, RE 38, PageID# 257).
Individual boards of elections have further discretion to determine what other
activities could also meet the definition of voter activity. (Defendant’s Initial
Merits Brief, RE 38, PageID# 257).

-6If an inactive voter fails to engage in any voter activity for four years
(including two federal general elections and any other elections that occur during
that period), then the individual’s voter registration is canceled. (Order, RE 66,
PageID# 23009). Individuals whose registrations are canceled are ineligible to
vote until they reregister. (Plaintiffs’ Motion for Summary Judgment, RE 39,
PageID# 1386).
B.

Procedural History
On April 6, 2016, plaintiffs filed this case in the Southern District of Ohio,

alleging that the Supplemental Process violated the NVRA and HAVA by basing
the confirmation notice on the voter’s failure to engage in any voting activity. (See
Complaint, RE 1, PageID# 1-17; Amended Complaint, RE 37, PageID# 236-237).
Plaintiffs further alleged that the specific confirmation notice that Ohio used did
not comply with the NVRA’s requirements. (Amended Complaint, RE 37,
PageID# 237-238). Plaintiffs alleged that the removal of voters resulting from the
Supplemental Process is particularly problematic in the lead-up to the November
2016 federal election because voters who voted in the high-turnout 2008 federal
election (but who did not vote in any subsequent elections) were removed from
voter rolls in 2015. (Amended Complaint, RE 37, PageID# 235).3

3

An individual who voted in 2008 but did not vote in 2010 would have
been sent the confirmation notice in 2011. If she did not receive or respond to that
(continued . . .)

-7On June 29, 2016, the district court denied plaintiffs’ motion for summary
judgment and request for injunctive relief. The court concluded that the NVRA
permits States to rely on non-voting to trigger the confirmation process that
ultimately results in removing voters from the rolls for changes of residence.
(Order, RE 66, PageID# 23015-23016). Rejecting plaintiffs’ argument that the
NVRA requires some reliable evidence that a person has moved before triggering
the removal process, the court reasoned that the NVRA “does not specifically state
who should be sent a confirmation notice or when that confirmation notice should
be sent,” and that this decision was thus “left to the [S]tates.” (Order, RE 66,
PageID# 23015-23016).
The court also held that the “Ohio Supplemental Process is consistent with
both the NVRA and HAVA as voters are never removed from the voter registration
rolls solely for failure to vote.” (Order, RE 66, PageID# 23016). Rather,
according to the court, a voter is removed only if she “both (1) fails to respond to
the confirmation process, and (2) subsequently fails to vote in the following two
general federal elections.” (Order, RE 66, PageID# 23016). In interpreting the
NVRA and HAVA, the court disregarded the Department’s interpretation of those
statutes, concluding that it “need not consider those interpretations where the
( . . . continued)
notice or vote during the next four-year period, including two federal election
cycles—2012 and 2014—she would have been removed from the rolls in 2015.

-8NVRA is clear on its face.” (Order, RE 66, PageID# 23012). The court rejected
plaintiffs’ other arguments and entered judgment in favor of Ohio. (Order, RE 66,
PageID# 23018-23026); (Judgment, RE 67, PageID# 23027).
SUMMARY OF ARGUMENT
Section 8 of the NVRA—when construed in light of its text, structure,
purpose, and history—requires that before a State can start the confirmation
process that leads to removal of voters from its voter registration rolls based on a
change of residence, it must have reliable evidence that the voter has moved.
Declining to vote does not provide such evidence. To the contrary, triggering the
confirmation process based solely on voter inactivity, as Ohio does through its
Supplemental Process, inevitably results in the removal of voters based on nonvoting, which violates the NVRA and HAVA.
Section 8 permits the removal of voters from the rolls only at the voters’
request or if they have become ineligible to vote in the jurisdiction where they are
registered. For ineligibility based on a change of residence, Section 8(d)
establishes a process that States must follow to confirm ineligibility. Because it is
a confirmation process, Section 8(d) requires some initial evidence that a voter has
moved. Without some initial evidence of a change in residence, there would be
nothing to confirm.

-9The question then is what type of initial evidence may a State use to trigger
the confirmation process. Congress provided one example: information from the
Postal Service’s change-of-address registry. 52 U.S.C. 20507(c). Although use of
the change-of-address registry is not mandatory, the fact that it is the sole example
in the statute suggests that States must have comparably reliable evidence before
triggering the confirmation process. The Department’s NVRA guidance suggests
another example of reliable evidence that a voter has moved: mailings that have
been returned as undeliverable. Other evidence may also suffice. But initiating the
removal process without some reliable evidence to suggest that voters have moved
cannot qualify as the “reasonable effort” the statute requires to identify voters who
are no longer eligible, 52 U.S.C. 20507(a)(4). It is unreasonable to infer that a
voter may have changed residences solely because she has not voted in the last two
years.
Regardless of precisely what evidence a State needs to trigger the
confirmation process, permitting States to use non-voting, without more, to trigger
the Section 8(d) process would violate both the NVRA and HAVA. Section 8(b)
and HAVA explicitly prohibit States from removing voters based on a change of
residence because of their failure to vote. Section 8(b) also expressly clarifies that
this prohibition does not include the Section 8(d) confirmation process. The
Section 8(b) bar on the use of non-voting must therefore apply to some part of the

- 10 removal process other than Section 8(d) confirmation. In light of this statutory
scheme, the best reading of Section 8 is that States cannot use non-voting, without
more, as evidence of a change in residence sufficient to trigger the confirmation
process. Thus, although the NVRA permits a State to rely on non-voting at the
back end of the process once Section 8(d) confirmation has begun, it does not
permit a State to rely on non-voting alone on the front end to identify voters who
may have changed residence.
This interpretation is supported by the only other judicial decision to
consider the question, Wilson v. United States, Nos. 95-20042, 94-20860 (N.D.
Cal. Nov. 2, 1995) (Attachment 8), and by the relevant legislative history, see, e.g.,
H.R. Rep. No. 9, 103d Cong., 1st Sess. 15-16 (1993) (House Report) (Congress
was concerned that voter list removal programs “can be abused and may result in
the elimination of names of voters from the rolls solely due to their failure to
respond to a mailing.”); S. Rep. No. 6, 103d Cong., 1st Sess. 19 (1993) (Senate
Report) (Congress was concerned that “many States continue[d] to penalize such
non-voters by removing their names from the voter registration rolls.”).
Ohio’s Supplemental Process impermissibly allows the State to remove
voters based on their inactivity. Ohio assumes that voters who have not cast a
ballot in two years have moved and then sends these voters a confirmation notice
to verify a change of address. If the voter does not receive or does not respond to

- 11 the notice, and then does not vote in the following two federal elections, she is
removed from the voter rolls. This practice violates the NVRA and HAVA
because it triggers the removal process without reliable evidence that a voter has
moved, and because it inevitably leads to the removal of voters based on failure to
vote.
ARGUMENT
THE NVRA AND HAVA PROHIBIT STATES FROM USING FAILURE TO
VOTE ALONE TO TRIGGER THE SECTION 8(d) CONFIRMATION
PROCESS FOR REMOVING VOTERS FROM REGISTRATION ROLLS
BASED ON A CHANGE OF RESIDENCE
A.

Statutory Background And Agency Guidance
1. The NVRA governs how States conduct voter registration and voter list

maintenance for federal elections. Congress enacted the NVRA in part to
“increase the number of eligible citizens who register to vote,” while protecting
“the integrity of the electoral process” by ensuring that “accurate and current voter
registration rolls are maintained.” 52 U.S.C. 20501(b).
The NVRA “set[s] limits on the removal of registrants from the voter
registration rolls,” displacing state voter list maintenance regimes that eliminate
eligible voters from the rolls without their consent. See Bell v. Marinko, 367 F.3d
588, 591 (6th Cir. 2004). Section 8(a)(3) of the NVRA permits States to remove a
voter only when a voter requests removal, when a voter becomes ineligible due to
criminal conviction or mental incapacity, or as provided in Section 8(a)(4). 52

- 12 U.S.C. 20507(a)(3). Section 8(a)(4) requires States to “conduct a general program
that makes a reasonable effort to remove” voters who have become ineligible due
to death or a change of residence. 52 U.S.C. 20507(a)(4). States’ voter removal
processes must follow the strictures of Section 8(b). And when removing voters
based on a change of residence, States must further follow the confirmation
procedures of Sections 8(c) and 8(d). 52 U.S.C. 20507(a)(4); see Association of
Cmty. Orgs. for Reform Now v. Miller, 129 F.3d 833, 835 (6th Cir. 1997).
Under Section 8(b), voter list maintenance procedures must be “uniform”
and “nondiscriminatory.” 52 U.S.C. 20507(b)(1). Moreover, States may not
remove voters for not voting:
Any State program or activity to protect the integrity of the electoral
process by ensuring the maintenance of an accurate and current voter
registration roll for elections for Federal office * * * shall not result
in the removal of the name of any person from the official list of
voters registered to vote in an election for Federal office by reason of
the person’s failure to vote * * * .
52 U.S.C. 20507(b)(2). Section 8(b) also contains a rule of construction, which
clarifies that the general prohibition on removing voters for failure to vote should
not “be construed to prohibit a State from using the procedures described in
subsections (c) and (d) to remove an individual from the official list of eligible
voters.” Ibid.
Section 8(c) provides an example of a general program that makes a
reasonable effort to remove voters who have become ineligible because they have

- 13 changed residences. Under Section 8(c), a State may use “change-of-address
information supplied by the Postal Service through its licensees * * * to identify
registrants whose addresses may have changed.” 52 U.S.C. 20507(c)(1)(A). If the
voter has moved within the same registrar’s jurisdiction, the State must update the
voter’s address. 52 U.S.C. 20507(c)(1)(B)(i). If the voter has moved to a different
jurisdiction, the State must use “the notice procedure described in subsection (d)(2)
to confirm the change of address.” 52 U.S.C. 20507(c)(1)(B)(ii).
Section 8(d), in turn, creates a confirmation process that States must follow
before they can remove from the rolls voters who may have moved to a different
jurisdiction. Specifically, that section provides that a State shall not remove a
voter from the rolls based on a change of residence unless (i) the voter “confirms in
writing that the registrant has changed residence,” or (ii) the voter “has failed to
respond to a notice described” in Section 8(d)(2) and “has not voted or appeared to
vote” by the second federal general election following the notice. 52 U.S.C.
20507(d)(1). Section 8(d)(2) then describes the form and contents of the notice
that States must use. 52 U.S.C. 20507(d)(2).

- 14 2. HAVA, enacted in 2002, imposes minimum standards for States to follow
in federal elections but does not alter the NVRA’s basic requirements. 4 Indeed,
HAVA emphasizes that States may not undertake list maintenance activities—
including removing voters for failure to vote—that the NVRA forbids. See 52
U.S.C. 21145(a)(4). For example, HAVA provides that if an individual is to be
removed from a State’s voter registration list, the voter “shall be removed in
accordance with” the NVRA. 52 U.S.C. 21083(a)(2)(A)(i).
In line with the general statement that nothing in HAVA “may be construed
to authorize or require conduct prohibited under” the NVRA, 52 U.S.C.
21145(a)(4), HAVA added the following rule of construction to Section 8(b)(2) of
the NVRA, which prohibits removing voters from the rolls for failure to vote:
* * * except that nothing in this paragraph may be construed to
prohibit a State from using the procedures described in subsections (c)
and (d) to remove an individual from the official list of eligible voters
if the individual-- (A) has not either notified the applicable registrar
(in person or in writing) or responded during the period described in
subparagraph (B) to the notice sent by the applicable registrar; and
then (B) has not voted or appeared to vote in 2 or more consecutive
general elections for Federal office.

4

HAVA includes one exception to this general rule, not applicable here,
related to identification requirements for certain voters. 52 U.S.C.
21083(b)(4)(a)(iv).

- 15 52 U.S.C. 20507(b)(2). HAVA’s amendment therefore clarified that non-voting
may be used in the removal process after the Section 8(d) confirmation notice has
been sent. The amendment did not change the NVRA’s basic operation.
This rule of construction is reinforced by another HAVA provision, which
references the Section 8(d) confirmation process and specifies that “consistent with
the [NVRA], registrants who have not responded to a notice and who have not
voted in 2 consecutive general elections for Federal office shall be removed from
the official list of eligible voters, except that no registrant may be removed solely
by reason of a failure to vote.” 52 U.S.C. 21083(a)(4)(A) (emphasis added).
3. In 2010, the Department issued guidance regarding the NVRA and
HAVA that addresses how States must administer voter list maintenance. That
guidance explains that the NVRA’s process of removing voters who have moved
must be triggered by reliable evidence indicating a change of address outside of the
jurisdiction, such as the Postal Service program described in Section 8(c). See
NVRA Guidance ¶ 34 (“A State can only remove the name of a person from the
voter registration list on grounds of change of residence upon * * * reliable
second-hand information indicating a change of address outside of the jurisdiction
from a source such as the [Postal Service] program.”). The guidance also gives an
example of an alternative to the Postal Service program that would constitute
sufficient evidence to trigger the Section 8(d) confirmation process. Specifically,

- 16 the guidance provides that States can undertake “a uniform mailing of a voter
registration card, sample ballot, or other election mailing to all voters in a
jurisdiction” and “use information obtained from returned non-deliverable mail as
the basis” to trigger the Section 8(d) confirmation process. NVRA Guidance ¶ 33.
B.

A Voter’s Mere Failure To Vote Is Insufficient To Trigger The Section 8(d)
Confirmation Process
A close examination of Section 8’s text, structure, purpose, and history

demonstrates that States must have reliable evidence before launching the process
for removing voters from their rolls based on a change of residence, and that States
may not trigger the process based solely on a voter’s failure to vote. See Kasten v.
Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 7 (2011) (statutory
interpretation “depends upon reading the whole statutory text, considering the
purpose and context of the statute, and consulting any precedents or authorities that
inform the analysis” (citation omitted)).
1. The NVRA permits States to remove voters only for a reason enumerated
in Sections 8(a)(3) or (4): “at the registrant’s request, due to criminal conviction or
mental incapacity as provided by state law, the death of the registrant, or due to a
change of the registrant’s residence.” United States Student Ass’n Found. v. Land,
546 F.3d 373, 376 (6th Cir. 2008). This case concerns the last category: “a change
in the residence of the registrant.” 52 U.S.C. 20507(a)(4)(B). Ohio’s
Supplemental Process, which relies on non-voting for a two-year period, complies

- 17 with the NVRA only if it is used as part of a “general program that makes a
reasonable effort” to determine whether a voter has become ineligible to vote
based on a change of residence and only if it does not violate any other provision
of the NVRA. See ibid.
a. The language and structure of the NVRA support the Department’s
conclusion that States must have some reliable evidence indicating that a voter has
changed residences before they undertake the removal process. See NVRA
Guidance ¶ 34.
First, the statutory language makes clear that States must use the Section
8(d) process for changes of address to “confirm” that the voter has moved out of
the jurisdiction and thus is no longer eligible to vote there. 52 U.S.C.
20507(c)(1)(B)(ii) and (d)(1)(A) (emphasis added). Section 8(c) explains that
States using Postal Service information “use[] the notice procedure described in
subsection (d)(2) to confirm the change of address” of voters flagged as moving for
postal purposes. 52 U.S.C. 20507(c)(1)(B)(ii) (emphasis added). Section
8(d)(1)—which describes the predicate steps to removing from the rolls a voter
who has moved—explicitly provides that the voter may not be removed unless she
“confirms” the change of address herself or fails to respond to the State’s notice in
a timely fashion. 52 U.S.C. 20507(d)(1)(A). The use of the term “confirm”
signifies that Congress envisioned that States would have some evidence that a

- 18 voter had moved before they used the Section 8(d) process to verify or corroborate
that information. See Black’s Law Dictionary (10th ed. 2014) (definition of
“confirm” is “verify” or “corroborate”). 5
Second, Congress signaled in Section 8(c) that evidence of a change of
residence must be sufficiently reliable to trigger the Section 8(d) confirmation
process. As previously noted, the NVRA requires States to “conduct a general
program that makes a reasonable effort to remove the names of ineligible voters
from the official lists of eligible voters by reason of * * * a change in the
residence of the registrant.” 52 U.S.C. 20507(a)(4)(B). Section 8(c), in turn,
provides the only example in the NVRA of a program that will satisfy this
“reasonable effort” requirement: the use of “change-of-address information

5

The district court effectively held that a State needs no evidence to trigger
the Section 8(d) confirmation process. (Order, RE 66, PageID# 23016-23017).
The remainder of the statute reveals that this conclusion is wrong. Section 8(a)(4)
requires that States make a “reasonable effort” to remove ineligible voters who
have died or moved. But the statute requires Section 8(d) confirmation only for
changes in residence, not death. Because the same “reasonable effort” standard
applies to both, a State would need comparably reliable evidence to remove a voter
for death as it would to trigger the Section 8(d) process. Taking the district court’s
conclusion to its logical end, if no evidence is necessary (or failure to vote is itself
sufficient) to trigger Section 8(d) confirmation for change of residence, then no
evidence is necessary (or failure to vote is itself sufficient) to remove a voter for
presumed death. That result neither satisfies the obligation to conduct a reasonable
effort under Section 8(a)(4) nor complies with Section 8(b)(2), which prohibits
removal of voters for failure to vote, as discussed later.

- 19 supplied by the Postal Service.” 52 U.S.C. 20507(c)(1)(A). 6 Although use of the
Postal Service information is not mandatory, Congress’s decision to provide it as
the only example of an acceptable program strongly suggests that States must have
comparably reliable evidence to trigger the process for removing voters based on a
change of residence. See Senate Report 19 (“[J]urisdictions which choose not to
use the [Postal Service] program should implement another reasonable program.”).
The Department’s guidance provides an additional example of reliable evidence:
States can undertake a “uniform mailing of a voter registration card, sample ballot,
or other election mailing to all voters in a jurisdiction” and “use information
obtained from returned non-deliverable mail as the basis” to trigger the Section
8(d) confirmation process. See NVRA Guidance ¶ 33.
Third, Section 8(a)(3) of the NVRA prohibits a State from removing
registrants who have moved out of the jurisdiction, unless it does so pursuant to “a
general program that makes a reasonable effort to remove the names” of voters
who have changed residence. 52 U.S.C. 20507(a)(4)(B) (emphasis added). The
6

In the briefing below, Ohio referred to Section 8(c) as the “NVRA NCOA
[National Change of Address] Procedure” and Section 8(d) as the “NVRA
Supplemental Process.” (Defendant’s Initial Merits Brief, RE 38, PageID# 267268). This erroneously implies that the NVRA authorizes two alternative list
maintenance processes. Instead, the statute establishes one process: evidence of a
change of residence establishing ineligibility (one version of which is described in
Section 8(c)(1)) followed by notice to confirm that ineligibility (described in
Section 8(d)).

- 20 Ohio Supplemental Process is grossly overinclusive and thus cannot constitute a
“reasonable effort” to remove individuals who actually have moved. A mere
failure to vote—particularly over a span of just two years—is not reliable evidence
suggesting that a person has changed residences. Turnout is typically far lower in
midterm elections than in presidential elections; consequently, Ohio sends many
eligible voters Section 8(d) notices not because they have moved but simply
because they have opted not to vote in a midterm election. Without reliable
evidence upfront to suggest that a voter may have moved, the Section 8(d) process
by itself is not a reasonable way to identify persons who have changed residence
because it will inevitably lead to the removal of individuals who are eligible to
vote and who have not in fact changed residence. Where, as here, a State uses a
measure that could produce a disproportionate number of false positives, it simply
has not made a “reasonable effort” to identify those people who have actually
become ineligible by moving outside of the jurisdiction.
b. This Court need not decide what precise evidence would suffice to trigger
the Section 8(d) process because the district court’s conclusion that non-voting
alone can trigger the Section 8(d) confirmation process conflicts with Section 8(b)
of the NVRA and with a provision of HAVA.
First, Section 8(b) provides that a State’s list maintenance program
shall not result in the removal of the name of any person * * * by
reason of the person’s failure to vote, except that nothing in this

- 21 paragraph may be construed to prohibit a State from using the
procedures described in subsections (c) and (d) to remove an
individual from the official list of eligible voters if the individual-(A) has not either notified the applicable registrar (in person or in
writing) or responded during the period described in subparagraph (B)
to the notice sent by the applicable registrar; and then (B) has not
voted or appeared to vote in 2 or more consecutive general elections
for Federal office.
52 U.S.C. 20507(b)(2). Ohio contends that it may use voter inactivity to trigger
the confirmation process. But because Section 8(d) permits a State to confirm
ineligibility by relying on further inactivity, Ohio’s scheme inevitably will result in
the removal of voters based solely on failure to vote, violating the statute’s
operative bar in Section 8(b)(2). This is because under Ohio’s Supplemental
Process, Ohio’s use of the Section 8(d) confirmation process only “confirms” that
people who have not voted may continue to refrain. It does not confirm, or even
suggest, ineligibility based on a change of residence.
The district court relied heavily on the “except” clause in Section 8(b)(2),
which HAVA added to the NVRA. (Order, RE 66, PageID# 23014-23015). This
exception is not as powerful as the district court and Ohio claim. It is, instead, a
rule of construction: “nothing in this paragraph may be construed to prohibit a
State from using the procedures described in subsections (c) and (d) to remove an
individual from the official list of eligible voters.” 52 U.S.C. 20507(b)(2)
(emphasis added). As a rule of construction, it does not grant additional
substantive permission for States to remove voters; rather, it merely clarifies that

- 22 the status quo (the Section 8(d) process incorporating non-voting as part of the
confirmation process only) was not undermined by the language of Section 8(b).
Allowing the clause to carve out a substantive exception to the ban on removal for
non-voting conflicts with Congress’s direction that nothing in HAVA may “be
construed to authorize or require conduct prohibited under” the NVRA. 52 U.S.C.
21145(a). 7
Second, the district court’s conclusion that non-voting, without more, can
trigger the Section 8(d) confirmation process misinterprets another portion of
HAVA, which in turn led to the court’s erroneous reading of the NVRA. In
particular, the court gave special weight to this provision:
[C]onsistent with the [NVRA], registrants who have not responded to
a notice and who have not voted in 2 consecutive general elections for
Federal office shall be removed from the official list of eligible voters,
except that no registrant may be removed solely by reason of a failure
to vote.

7

The district court’s interpretation also conflicts with the legislative history
of this HAVA amendment, which emphasized that the “[t]he procedures
established by the NVRA that guard against removal of eligible registrants remain
in effect,” and that the HAVA amendment “does not undermine [the NVRA] in
any way.” H.R. Rep. No. 730, 107th Cong., 2d Sess. 81 (2002) (Conf. Rep.).

- 23 52 U.S.C. 21083(a)(4)(A) (emphasis added). 8 Rather than supporting Ohio’s
interpretation of the NVRA, however, the “except” clause in this provision
confirms the Department’s interpretation that a failure to vote cannot trigger the
Section 8(d) process. This HAVA provision reiterates that States may remove
voters who have changed residence after mailing the Section 8(d) confirmation
notice if the voter has not voted by the second subsequent federal general election.
If the Section 8(d) process were meant to serve as a standalone removal process, as
the district court held, rather than as a process to confirm other evidence of
changed residence, this would render the “except” clause wholly irrelevant. The
court concluded that Ohio was not removing voters solely for failure to vote
because Ohio also was relying on voters’ failure to respond to the notice. (Order,
RE 66, PageID# 23016). But under that logic, the Section 8(d) process always
involves both the failure to respond to the notice and non-voting thereafter, and
there could be no instance where a voter was removed “solely by reason of a
failure to vote.” Accordingly, the “except” clause must necessarily refer to
something other than the Section 8(d) process. That something must be the trigger
for the Section 8(d) notice. Any other interpretation renders the “except” clause
mere surplusage. See United States v. Jicarilla Apache Nation, 564 U.S. 162, 185
8

Immediately before this sentence, HAVA offers a reminder that the goal is
to make[] a reasonable effort to remove registrants who are ineligible to vote from
the official list of eligible voters.” 52 U.S.C. 21083(a)(4)(A) (emphasis added).

- 24 (2011) (“As our cases have noted in the past, we are hesitant to adopt an
interpretation of a congressional enactment which renders superfluous another
portion of that same law.”).
2. Although limited, relevant case law supports the Department’s
interpretation of the NVRA. Wilson v. United States—which the district court did
not discuss—is the only other decision (of which we are aware) addressing what a
State must establish before it can remove a voter for change of residence, and it
supports reading the NVRA to require reliable evidence of a move before
triggering the Section 8(d) process. See Order at 5, Wilson v. United States, Nos.
95-20042, 94-20860 (N.D. Cal. Nov. 2, 1995) (Attachment 8). In Wilson, the court
considered a challenge to California’s then-existing voter-removal procedures.
Under those procedures, a voter who had not voted in the previous six months was
sent an initial non-forwardable postcard to confirm his residency. Ibid. Only if the
Postal Service returned this initial non-forwardable postcard as undeliverable
would California send a subsequent Section 8(d) forwardable confirmation notice
and begin the cancellation process. Ibid. The court found that the California
procedure complied with the NVRA specifically because the Postal Service’s
return of the initial postcard as undeliverable provided reliable evidence,
independent from the voter’s inactivity, that the voter had in fact moved. Id. at 56. That evidence sufficed to trigger the Section 8(d) confirmation process. Ibid.

- 25 The process ratified by Wilson contrasts with Ohio’s Supplemental Process,
which is triggered solely by a voter’s inactivity and not by any reliable evidence
that the voter has moved. Wilson therefore supports the proposition that a removal
process triggered by inactivity alone violates the NVRA. See Order at 5-6, Wilson,
supra (“Since the State receives a card which states that the card is undeliverable
and then the addressee fails to vote in subsequent elections, [California’s removal
procedure] does not violate the NVRA.”). 9
Instead of looking to Wilson, the district court relied on the Department’s
later consent decree with Indiana and on a settlement agreement with Philadelphia.
The Indiana consent decree provides no support for the district court’s
interpretation. Under that consent decree, Indiana could only remove voters for
whom a mailing had been returned as undeliverable. See Consent Decree and
Order at 3-4, United States v. Indiana, No. 06-1000 (S.D. Ind. June 27, 2006)
(Attachment 9). That is precisely the standard the Wilson court used, and the
standard the United States has advocated in its public guidance and in the Georgia
9

Importantly, as set forth in Wilson, non-voting can be part of the trigger
for the Section 8(d) confirmation process, as long as there is also reliable evidence
of a move. For example, a State could adopt a process where it sends every voter
who has not voted in the last two elections a non-forwardable initial notice. It can
then send a Section 8(d) confirmation notice to any voters for whom the initial
notice was returned as undeliverable. Under such circumstances, the intervening,
undeliverable mail would be sufficient evidence that the voter has moved to
confirm that change of residence using the Section 8(d) process.

- 26 litigation, and advocates here. Indiana’s procedures, which require reliable
evidence of a change in residence to trigger the confirmation process (i.e.,
undeliverable mail), comply with the NVRA while the Ohio process, which uses
non-voting alone as the trigger, does not.
The Philadelphia settlement agreement is of limited value when considered
in its context. That case was about Philadelphia’s failure to remove voters who
had died (rather than voters who had moved) from its rolls. See Amended Compl.,
United States v. City of Phila., No. 06-4592 (E.D. Pa. Apr. 26, 2007) (Attachment
10). As part of the settlement, the parties agreed that Philadelphia would
essentially comply with Pennsylvania law, which permits the use of non-voting to
trigger the Section 8(d) process. 10 The Department has never stated that
Pennsylvania law complies with Section 8 of NVRA; to the contrary, the
Department specifically argued in separate litigation against the Commonwealth
that Pennsylvania’s voter list maintenance procedures violated Section 8 for the
same reason Ohio’s does. See Mot. for Summary Judgment at 17, United States v.
Pennsylvania, Nos. 95-382, 94-7671 (E.D. Pa. Aug. 7, 1996) (Attachment 3)

10

The agreement—which is no longer in effect—permitted the city to send
a “forwardable confirmation notice to any registered elector who has not voted nor
appeared to vote during any election, or contacted the Board in any manner, and
whose contact resulted in a change in his or her voter record.” Settlement
Agreement ¶ 16, United States v. City of Phila., No. 06-4592 (E.D. Pa. Apr. 26,
2007) (Attachment 11).

- 27 (contending that “Pennsylvania law runs afoul of Section 8(b)(2)’s prohibition on
purges for non-voting and is thus pre-empted”).11 Of note, the same year the
Department settled with Philadelphia, it also reached a settlement with Cibola
County, New Mexico, under Section 8 of the NVRA. That settlement prohibited
the County from using non-voting to trigger the purging process for voters who
may have changed residences and instead required the County to rely on objective
information showing the voter had become ineligible to vote due to a move—such
as returned mail or information from the Postal Service. See Amended Joint
Stipulation ¶ 13, United States v. Cibola Cnty., No. 93-1134 (D. N.M. Jan. 31,
2007; approved by court Mar. 19, 2007) (Attachment 7). In short, the Philadelphia
settlement resulted from unique circumstances and does not undermine the
Department’s longstanding position on the proper interpretation of the NVRA. See
pp. 2-3, supra.
3. The Department’s interpretation that a State may not use non-voting
alone to trigger the Section 8(d) process is further supported by the NVRA’s
purpose and history. In passing the NVRA, Congress sought to ensure that “voters
could not be removed from the registration rolls by a failure to vote.” See Welker
11

The Pennsylvania case was principally about Section 7 of the NVRA.
When the parties settled the United States’ claims under Section 7, the parties also
agreed not to continue litigating the Section 8 claims, leaving them open for
potential resolution later.

- 28 v. Clarke, 239 F.3d 596, 598-599 (3d Cir. 2001). Congress designed the NVRA to
“ensure that once a citizen is registered to vote, he or she should remain on the
voting list so long as he or she remains eligible to vote in that jurisdiction,”
recognizing that “while voting is a right, people have an equal right not to vote, for
whatever reason.” Senate Report 17; House Report 18.
Indeed, the NVRA was passed, in part, as a reaction to the removal
processes based on non-voting that preceded it. Senate Report 17-18. Congress
was concerned that “many States continue[d] to penalize such non-voters by
removing their names from the voter registration rolls,” even though that practice
was “inefficient and costly,” and, in the view of some, “disproportionately
affect[ed] persons of low incomes, and blacks and other minorities.” Ibid.
To protect the right to vote (and the right not to vote), Congress intended
that States use reliable evidence rather than voter inactivity as a trigger for
removing voters. Congress was concerned that voters who had not voted or had
failed to respond to a mailing would be removed. House Report 15-16 (“The
Committee is concerned that [voter removal] programs can be abused and may
result in the elimination of names of voters from the rolls solely due to their failure
to respond to a mailing.”); House Report 30 (“Instead of using non-voting as an
indication that a voter has changed addresses, an election official could contact
only those who have actually moved, and at their new addresses.”). Accordingly,

- 29 as the Third Circuit has recognized in dicta, “the NVRA strictly limited removal of
voters based on change of address and instead required that, for federal elections,
states maintain accurate registration rolls by using reliable information from
government agencies such as the Postal Service’s change of address records.”
Welker, 239 F.3d at 599.
The practical impact of Ohio’s Supplemental Process, which removes voters
who have done nothing to make themselves ineligible, is troubling when contrasted
with Congress’s intent in enacting the NVRA. Consider, as an example, a voter
who voted in 2008 but who did not vote in the subsequent two years, and who also
did not move. Under Ohio’s process, the State would have sent a Section 8(d)
notice to the voter in 2011 to confirm that she had changed her residence (based
solely on her failure to vote between 2008 and 2010). If she did not receive or
inadvertently disposed of this notice, and did not vote in any elections between
2010 and 2014, she would have been removed from the rolls and would be unable
to cast a valid ballot in the 2016 election, even though she did not become
ineligible to vote in the years since the 2008 election. This removal contravenes
Congress’s intent.
* * *
As demonstrated by its text, structure, purpose, and history, the NVRA
requires that a State have reliable evidence that a voter has moved before it may set

- 30 into motion the process for canceling a voter’s registration based on a change of
residence. Ohio’s use of non-voting to trigger that process inevitably results in the
removal of voters based on inactivity, not ineligibility. The NVRA and HAVA
prohibit this.
CONCLUSION
This Court should reverse the district court’s judgment.
Respectfully submitted,
BENJAMIN C. GLASSMAN
Acting United States Attorney for the
Southern District of Ohio

CAROLE S. RENDON
United States Attorney for the
Northern District of Ohio

VANITA GUPTA
Principal Deputy Assistant
Attorney General
s/ Vikram Swaruup
TOVAH R. CALDERON
VIKRAM SWARUUP
Attorneys
Department of Justice
Civil Rights Division
Appellate Section – RFK 3730
Ben Franklin Station
P.O. Box 14403
Washington, D.C. 20044-4403
[phone]

CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the type volume limitation
imposed by Federal Rules of Appellate Procedure 32(a)(7)(B) and 29(d). The brief
was prepared using Microsoft Word 2007 and contains no more than 6957 words
of proportionally spaced text, excluding the parts of the brief exempted by Federal
Rule of Appellate Procedure 32(a)(7)(B)(iii). The type face is Times New Roman,
14-point font.
I further certify that the electronic version of this brief, prepared for
submission via ECF, has been scanned with the most recent version of Symantec
Endpoint Protection (version 12.1.6) and is virus-free.
s/ Vikram Swaruup
VIKRAM SWARUUP
Attorney
Date: July 18, 2016

CERTIFICATE OF SERVICE
I hereby certify that on July 18, 2016, I electronically filed the foregoing
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING
PLAINTIFFS-APPELLANTS AND URGING REVERSAL with the Clerk of the
Court for the United States Court of Appeals for the Sixth Circuit by using the
appellate CM/ECF system.
I certify that all participants in this case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.

s/ Vikram Swaruup
VIKRAM SWARUUP
Attorney

Attachment 1

Case 1:16-cv-00452-TCB Document 19 Filed 05/04/16 Page 1 of 27

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

COMMON CAUSE and the GEORGIA
STATE CONFERENCE OF THE
NAACP,
Plaintiffs,
v.

Civil Action No. 1:16-cv-452-TCB

BRIAN KEMP, individually and in his
capacity as the Secretary of State of
Georgia,
Defendant.

STATEMENT OF INTEREST OF THE UNITED STATES
I.

INTRODUCTION
The United States respectfully submits this Statement of Interest pursuant to

28 U.S.C. § 517, which authorizes the Attorney General to attend to the interests of
the United States in any pending suit. This case presents an important question of
statutory interpretation of the National Voter Registration Act of 1993 (NVRA), 52
U.S.C. § 20501 et seq., and the Help America Vote Act of 2002 (HAVA), 52
U.S.C. § 20901 et seq. Congress gave the Attorney General broad authority to
enforce both the NVRA and HAVA on behalf of the United States. See 52 U.S.C.
-1-

Case 1:16-cv-00452-TCB Document 19 Filed 05/04/16 Page 2 of 27

§§ 20510, 21111. Accordingly, the United States has a strong interest in ensuring
that both statutes are fully and uniformly enforced.
The NVRA requires states to “conduct a general program that makes a
reasonable effort to remove the names of ineligible voters from the official lists” of
registered voters, a process often referred to as “purging.” 52 U.S.C. §
20507(a)(4). HAVA does the same. 52 U.S.C. § 21083(a)(4)(A). Such a program
must be uniform and nondiscriminatory and in compliance with the Voting Rights
Act. 52 U.S.C. § 20507(b)(1). Among other grounds, the NVRA and HAVA
require removal of voters who have become ineligible by virtue of a change of
residence, pursuant to a designated purge process. Both statutes, however, also
expressly forbid purging voters merely for not voting. 52 U.S.C. §§ 20507(b)(2),
21083(a)(4)(A).
This case asks whether, consistent with federal law, a state may consider a
registered voter’s failure to vote to be reliable evidence that the voter has become
ineligible to vote by virtue of a change of residence, thus triggering the designated
NVRA purge process. Defendant argues that it can. In fact, it cannot.
Accordingly, the United States submits this Statement of Interest to address proper
NVRA and HAVA standards. The United States respectfully submits that
Defendant’s motion to dismiss should be denied.
-2-

Case 1:16-cv-00452-TCB Document 19 Filed 05/04/16 Page 3 of 27

II.

BACKGROUND
A. Georgia’s Current Purging Procedures
Georgia’s purging procedures for voters who may have changed residence

are as follows: First, at the start of each odd-numbered year, the Secretary of State
prepares a list of voters who have had “no contact” with election officials in the
past three years. 1 D’s Mot. to Dismiss at 8-10; Ga. Code § 21-2-234. At the
Secretary’s discretion, he may also include voters who have provided a change of
address to the U.S. Postal Service through its National Change of Address (NCOA)
program. Id.; Ga. Code Ann. § 21-2-233. Second, the Secretary must send these
voters a notice asking them to confirm whether they still reside at their current
address. Id.; Ga. Code Ann. §§ 21-2-233(c); 21-2-234(a). Next, if the voter does
not return the notice confirming her residence within 30 days, she is moved to the
“inactive list.” Id.; Ga. Code Ann. §§ 21-2-233(c); 21-2-234(g). Finally, if the
voter continues to have “no contact” with election officials through and including
1

“No contact” is a statutorily defined term under state law meaning that the voter
“has not filed an updated voter registration card, has not filed a change of name or
address, has not signed a petition which is required by law to be verified by the
election superintendent of a county or municipality or the Secretary of State, has
not signed a voter's certificate, and has not confirmed the elector's continuation at
the same address during the preceding three calendar years.” Ga. Code Ann. § 212-234(a).
-3-

Case 1:16-cv-00452-TCB Document 19 Filed 05/04/16 Page 4 of 27

the second federal general election after the notice was mailed, the registration
record will be cancelled. Id.; Ga. Code Ann. § 21-2-235. Any voter whose
registration record is cancelled is ineligible to vote in state and federal elections in
Georgia until the voter submits a new registration form. Ga. Code Ann. § 21-2235(b).
B. Georgia’s Prior Purging Procedures and Preclearance
In 1993, Congress enacted the NVRA. In 1994, Georgia enacted its first
post-NVRA purging procedures, Ga. Code Ann. §§ 21-2-234; 21-2-235. Georgia
submitted those purge procedures to the Department of Justice for preclearance
review under Section 5 of the Voting Rights Act. The Department objected, based
on a determination that those procedures violated the NVRA by using non-voting
alone to trigger the purge process. Letter from Deval Patrick, Asst. Att’y Gen’l
(USDOJ), to Dennis R. Dunn, Sr. Asst. Att’y Gen’l (Ga.) (Oct. 24, 1994)
(Attached as Ex. 1 to P’s Compl.).
In 1997, Georgia submitted a slightly revised version of its purge
procedures, functionally similar to the procedures currently in Section 21-2-234,
for preclearance review under Section 5. The Department did not object to that
submission, but this lack of objection did not reflect or imply any finding regarding

-4-

Case 1:16-cv-00452-TCB Document 19 Filed 05/04/16 Page 5 of 27

compliance with the NVRA. 2 To the contrary, consistent with prevailing law and
Department regulations, however, the Section 5 determination letter expressly
indicated that the non-objection did not bar subsequent litigation to enforce the
NVRA. Letter from Isabelle Katz Pinzler, Acting Asst. Att’y Gen’l (USDOJ), to
Dennis R. Dunn, Sr. Asst. Att’y Gen’l (Ga.). (July 29, 1997) (Attached as Ex. 1 to
Br. in Supp. of D’s Mot. to Dismiss).3
III.

LEGAL STANDARD
A. The National Voter Registration Act of 1993
The NVRA governs how covered states conduct voter registration and voter

list maintenance for federal elections.4 Congress enacted the NVRA in part to
2

Earlier that same year, the Supreme Court decided Reno v. Bossier Parish School
Board, 520 U.S. 471 (1997). Bossier Parish held that a violation of Section 2 of
the Voting Rights Act could not independently support an objection under Section
5 of the Act. Based on that Supreme Court decision, the Department of Justice
determined that a state statute’s violation of another federal statute, such as the
NVRA, was an insufficient basis to support an objection under Section 5.
3

Georgia is no longer covered by the preclearance requirement of Section 5 of the
Voting Rights Act, by virtue of the decision of the Supreme Court in Shelby
County v. Holder, 133 S. Ct. 2612 (2013).

4

A state is covered under the NVRA unless it either has no voter registration
requirement for federal elections or has allowed voter registration at the polling
place for federal elections continuously since August 1, 1994. 52 U.S.C. §
20503(b). Georgia is a state covered by NVRA requirements. Coverage under the
NVRA is distinct from coverage under the preclearance requirement of Section 5
-5-

Case 1:16-cv-00452-TCB Document 19 Filed 05/04/16 Page 6 of 27

“increase the number of eligible citizens who register to vote” while protecting
“the integrity of the electoral process” by ensuring that “accurate and current voter
registration rolls are maintained.” 52 U.S.C. § 20501(b).
Section 8 of the NVRA addresses state voter list maintenance procedures for
federal elections. 52 U.S.C. § 20507. Among other things, it prescribes the
conditions under which voters may be purged and the procedures states must
follow before making those purges. 52 U.S.C. § 20507(a).
In Section 8, Congress set forth two new bedrock requirements for state
purging programs. First, programs to maintain accurate and current voter
registration lists must be “uniform” and “nondiscriminatory.” 52 U.S.C.
20507(b)(1). Second, states may not purge voters based on not voting:
Any State program or activity … ensuring the maintenance of an accurate
and current voter registration roll for elections for Federal office-- … shall
not result in the removal of the name of any person from the official list of
voters registered to vote in an election for Federal office by reason of the
person’s failure to vote….
52 U.S.C. § 20507(b)(2) (emphasis added).
The statute does delineate, however, conditions under which states may
properly purge registered voters. Those conditions include when the registrant
of the Voting Rights Act, and is in no way implicated by the Supreme Court’s
decision in Shelby County.
-6-

Case 1:16-cv-00452-TCB Document 19 Filed 05/04/16 Page 7 of 27

requests to be removed from the list, or when reliable information reveals that the
voter has become ineligible to vote due to death, criminal conviction, mental
status, or changed residence. 52 U.S.C. § 20507(a)(3), (a)(4). As to this last
category, the NVRA requires states to “conduct a general program that makes a
reasonable effort to remove the names of ineligible voters from the official lists of
eligible voters by reason of … a change in the residence of the registrant….” 52
U.S.C. § 20507(a)(4). To do so, states must follow specific NVRA procedures.
First, the state must gather reliable evidence that the voter has become ineligible
based on a change of residence. One such process for gathering this evidence,
involving use of the U.S. Postal Service’s National Change of Address (NCOA)
database, is described in Section 8(c). Second, the state must notify the voter and
provide an opportunity to confirm (or rebut) the apparent address change, by
means of a specific forwardable confirmation mailing and waiting for two federal
general elections, before cancelling a voter’s registration, as described in Section
8(d).
1. Evidence of a Change of Residence
Section 8(c) of the NVRA cites the NCOA database as an objective and
reliable source for identifying voters who may have become ineligible to vote by
moving outside the jurisdiction. 52 U.S.C. § 20507(a)(4), (c). The NCOA is
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basically a safe harbor method of gathering address-change information; it is not
the only such source, and use of the NCOA is not mandatory. 52 U.S.C. §
20507(c). Likewise, an entry in the NCOA database is not by itself a sufficient
basis to purge; for example, the entry may reflect an error, or it may indicate an
individual’s desire to forward mail, unconnected to a change in voting residence.
As the NCOA information on potential address changes is second-hand and does
not come directly from the voter, the NVRA requires that states follow the specific
process in Section 8(d) to provide the voter with the opportunity to confirm or
rebut the evidence of the move.
2. The Notice, Waiting Period, and Cancellation Process
Once a jurisdiction has reliable evidence that a voter has moved, Section
8(d) of the NVRA describes in detail the process that election officials must follow
to give that voter the opportunity to confirm or rebut evidence of a possible change
of residence that would render the voter ineligible to vote in the jurisdiction
(referred to here as the Section 8(d) notice and cancellation process). Election
officials must send the voter a detailed notice by forwardable mail, designed to
reach the voter wherever she may be, asking the voter to confirm whether she has
in fact moved outside the registrar’s jurisdiction. 52 U.S.C. § 20507(d). The voter
may affirmatively confirm ineligibility in writing (and may then be purged). Id.
-8-

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Alternatively, the voter may rebut the evidence of ineligibility either by declaring
that she still resides within the jurisdiction or by appearing to vote. Id. If the voter
does not respond to that notice and does not vote or appear to vote at or before the
second federal general election following mailing of the notice, only then may the
state properly purge that voter from the voter rolls based on change of residence.
Id.
B. The Help America Vote Act of 2002
HAVA, which was enacted in 2002, imposes certain minimum standards
for states to follow in federal elections. For instance, Section 303 requires that
covered states adopt a computerized statewide database for voter registration
purposes. 52 U.S.C. § 21083. But HAVA leaves the NVRA and other federal
voting protections intact. HAVA makes clear that states must not undertake list
maintenance activities under the statewide database—including purging voters for
failure to vote—that are forbidden by the NVRA. Section 303(a)(2)(A)(i) provides
that if an individual is to be removed from a state’s voter registration list, the voter
“shall be removed in accordance with” the NVRA. 52 U.S.C. § 21083(a)(2)(A)(i).
And the statute restates the core principle that “no registrant may be removed
solely by reason of a failure to vote.” 52 U.S.C. § 21083(a)(4)(A).

-9-

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Section 903 amended the NVRA to clarify that states may use the Section
8(d) notice, waiting period, and cancellation process as part of a general program
to purge voters for whom there exists reliable second-hand evidence of a change in
residence (such as the NCOA database described in Section 8(c)). 52 U.S.C. §
20507(b)(2).5
And Section 906 addresses HAVA’s effect on other laws. 52 U.S.C. §
21145(a). It cautions that HAVA neither authorizes nor allows states to do
5

The relevant text of Section 8(b) of the NVRA, with the portion added by HAVA
in underline, is as follows:
(b) Any State program or activity to protect the integrity of the electoral
process by ensuring the maintenance of an accurate and current voter
registration roll for elections for Federal office …

(2) shall not result in the removal of the name of any person from the official
list of voters registered to vote in an election for Federal office by reason of
the person's failure to vote, except that nothing in this paragraph may be
construed to prohibit a State from using the procedures described in
subsections (c) and (d) to remove an individual from the official list of
eligible voters if the individual-(A) has not either notified the applicable registrar (in person or in writing) or
responded during the period described in subparagraph (B) to the notice sent
by the applicable registrar; and then
(B) has not voted or appeared to vote in 2 or more consecutive general
elections for Federal office.
52 U.S.C. § 20507(b)(2) (emphasis supplied)
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anything prohibited by the NVRA or other federal voting statutes, and that nothing
in HAVA repeals, replaces, or limits the protections of those statutes. Id.6
IV.

ARGUMENT
A. Using Failure to Vote to Trigger a Section 8(d) Purge Process
Violates Section 8 of the NVRA.
The NVRA and HAVA prohibit using non-voting as a basis to purge

registered voters. 52 U.S.C §§ 20507(b)(2), 21083(a)(4)(A). This is, in part, a
reaction to the purge practices of the past. See S. Rep. 103-6 at 17-19 (1993)
(explaining that at the time the NVRA was passed, “many States continue[d] to
penalize such non-voters by removing their names from the voter registration rolls”
even though that practice was “inefficient and costly” and some believe that it
tended to “disproportionately affect persons of low incomes, and blacks and other
minorities”).
The NVRA rejected this historical practice, and instead offered a balanced
approach to registration rolls that better reflect the eligible electorate. It ensured
that voters could be validly removed from the rolls upon reliable evidence of their
6

Section 906 includes only one exception to this general rule, not applicable here:
it changes some requirements of the NVRA to establish an identification
requirement for first-time voters who register by mail. 52 U.S.C. § 21145(a); see
also id. § 21083.
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ineligibility. But it also established firm procedures to ensure that eligible voters
would not be removed from the rolls merely for inactivity, without more.
Sections 8(b), 8(c), and 8(d) help supply this balance. Election officials
must establish a general program that makes a reasonable effort to purge the
registration records of individuals who have moved out of the jurisdiction. 52
U.S.C. § 20507(a)(4)(B). However, the NVRA provides a two-step process for
such purges, to minimize error. First, the jurisdiction must have some reliable
evidence that the voter has become ineligible due to a change of residence.
Election officials need not use the NCOA database. But Congress’s explicit
endorsement in Section 8(c) of the NCOA process as a safe harbor for identifying
changes of residence, paired with the ban on purging based on non-voting in
Section 8(b), signals Congress’ intent to ensure that any method states use to
trigger the Section 8(d) notice and cancellation process must be based upon
objective and reliable information of potential ineligibility due to a change of
residence that is independent of the registrant’s voting history. Id.; see also Welker
v. Clarke, 239 F.3d 596, 599 (3rd Cir. 2001) (noting in dicta that the NVRA
“strictly limited” removals based on changes of address, and that evidence of
moves must be “reliable” information such as the NCOA). Then, and only then, is
it appropriate to institute the Section 8(d) process: notifying the voter that there is
-12-

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some evidence of ineligibility, and allowing the voter an opportunity to either
confirm or rebut that evidence.
Without reliable evidence of a move to trigger the Section 8(d) notice and
cancellation process, voters might be purged based purely on inactivity rather than
actual ineligibility. Both the NVRA and HAVA clearly state that once registered,
an eligible voter’s decision not to vote (e.g., based on dissatisfaction with the
candidates on offer in particular elections) cannot suffice to place his or her
constitutional right to vote in jeopardy. Yet that is precisely the result Defendant
advocates in this case. Reliance on non-voting to trigger the Section 8(d) notice
and cancellation process—rather than independent, objective, and reliable evidence
of a changed residence—means that an eligible voter can be purged solely for
declining to participate.
Wilson v. United States, the sole court decision interpreting Section 8(b)(2)
of which we are aware, supports that view. See Order Granting in Part and
Denying in Part Plaintiffs Voting Rights Coalition and United States’ Motion for
Further Relief, Wilson v. United States, No. C 95-20042 at 5 (N.D. Cal. Nov. 2,
1995), as modified by Joint Stipulation to Substitute Language (N.D. Cal. Nov. 13,
1995) (attached as Exhibit 1). In Wilson, the Court considered a challenge to
California’s then-existing purging procedures. Under those procedures, a voter
-13-

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who had not voted in the previous six months was sent an initial non-forwardable
postcard to confirm his residency. Id. at 5 (as modified by joint stipulation). Only
if the U.S. Postal Service returned this initial non-forwardable postcard as
undeliverable would California send a subsequent Section 8(d) forwardable notice
and begin the cancellation process. Id. The Wilson court found the California
procedure complies with the NVRA specifically because the Postal Service
returning the initial postcard as undeliverable provides objective and reliable
evidence, independent from the voter’s activity or inactivity, that the voter had in
fact moved. Id. And even though such evidence is not itself dispositive, it is
sufficient to trigger the Section 8(d) process. Id.
The process ratified by the Wilson court stands in stark contrast to a purge
procedure triggered solely by a voter’s inactivity, and which does not rely on any
objective and reliable evidence that the voter has in fact moved (such as NCOA
information or returned undeliverable mail). A purge premised on inactivity alone
violates the NVRA’s ban on purging voters for non-voting. See id. (“Since the
State receives a card which states that the card is undeliverable and then the
addressee fails to vote in subsequent elections, [California’s purging procedure]
does not violate the NVRA.”).

-14-

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In 1997, after Wilson was decided, the Department of Justice authorized
lawsuits against Alaska and South Dakota under facts similar to those at issue here.
See Exhibits 2 and 3. Each state had adopted purging procedures that used nonvoting to trigger the Section 8(d) notice and cancellation process. The Department
notified each state that its purging procedures violated Section 8’s ban on purging
for non-voting. The states subsequently agreed to stop using non-voting as the
trigger for beginning the Section 8(d) notice and cancellation procedure, and
instead adopted an undeliverable non-forwardable initial notice trigger similar to
that approved by the Wilson court. See Ak. Stat. 15.07.130(a),(b); S.D. Codified
Laws § 12-4-19. The position is consistent with the guidance on the NVRA that
the Department of Justice has given after the enactment of HAVA. 7

7

The Department of Justice guidance stresses that a general program under Section
8 to purge voters who may have moved away should be triggered by reliable
second-hand information indicating a change of address outside of the jurisdiction,
from a source such as the NCOA program, or a general mailing to all voters. Dep’t
of Justice, The National Voter Registration Act of 1993 (NVRA) Questions and
Answers at ¶¶ 34-35 (available at https://www.justice.gov/crt/national-voterregistration-act-1993-nvra); see also id. at ¶ 33 (giving examples of reliable,
objective alternatives to the USPS NCOA database); id. at ¶ 29 (reiterating that list
maintenance must be uniform, non-discriminatory, and in accordance with the
NVRA); cf. at ¶ 30 (discussing situations where notice and waiting period is
required, and using returned mail as an example of second-hand information that
triggers the notice and waiting period process before purging).
-15-

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Defendant argues that the NVRA does not require states to use the NCOA
database to determine that a voter has moved. Br. in Supp. of D’s Mot. to Dismiss
at 6-7; Reply Br. in Supp. of D’s Mot. to Dismiss at 9-10. That is true but beside
the point. While the NCOA database is the one source Congress specifically
mentioned for determining that a voter has moved away, states are free to use
analogous information sources and methodologies as long as they yield objective
and reliable evidence of a voter’s changed residence that is independent of voting
history. But states may not purge voters based on an impermissible assumption
derived solely from a registrant’s choice not to vote.8
Defendant also incorrectly suggests that because Section 8(d) permits voters
to correct erroneous confirmation mailings, states may use any means, including
non-voting, to determine which voters have moved away. Reply Br. in Supp. of

8

Because the NVRA’s plain text prohibits using non-voting to trigger the purging
process, the court need not review the statute’s legislative history. See Milavetz,
Gallop & Milavetz, P.A. v. United States, 559 U.S. 229, 236 n. 3 (2010). But that
history underscores Defendant’s error here. Congress designed the NVRA to
“ensure that once a citizen is registered to vote, he or she should remain on the
voting list so long as he or she remains eligible to vote in that jurisdiction,”
recognizing that “while voting is a right, people have an equal right not to vote, for
whatever reason.” S. Rep. 103-6 at 17 (1993). To protect this right, Congress
intended states to use reliable evidence such as the NCOA database rather than
failure to vote as a trigger for purging. See H.R. Rep. 103-9 at 15-16 (1993).

-16-

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D’s Mot. to Dismiss at 8-9. Although Section 8(d) provides a way for voters to
correct inadvertent errors resulting from the targeting process, it does not obviate a
state’s duty ab initio to use a reliable, objective process to target for removal only
registrants for whom there is evidence of ineligibility, and in no way allows what
the NVRA explicitly forbids: using failure to vote alone to trigger the Section 8(d)
notice and cancellation process.
Alternatively, Defendant argues that Georgia’s purge procedures are
triggered by “no contact,” as defined by state statute, and not by a registrant’s
failure to vote. Br. in Supp. of D’s Mot. to Dismiss at 12; Reply Br. in Supp. of
D’s Mot. to Dismiss at 11, n. 7. This misses the mark. Under Georgia law, the
definition of “no contact” for purposes of triggering the purge process is that a
voter has not voted, appeared to vote, signed a petition, or otherwise contacted
election officials. Id.
The absence of these activities is in no way evidence of ineligibility. A
voter’s decision not to vote or otherwise interact with the political process or
election officials says nothing reliable about whether a voter has become ineligible
by having moved away. And Congress’ intent to protect a citizen’s right not to
vote surely also encompasses the right not to appear to vote, or sign a petition, or
contact an election official if a voter elects not to do so. See S. Rep. 103-6 at 17
-17-

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(1993). Purge procedures therefore violate the NVRA regardless of whether they
use non-voting or Georgia’s definition of “no contact” to trigger the process for
purging voters without any reliable evidence of ineligibility.
B. HAVA’s Amendment to the NVRA Does Not Allow States to Target
Non-Voters for Purging Absent Reliable Evidence They Have
Changed Residence.
Defendant argues that Congress authorized a purge triggered by nonvoting
when it amended Section 8(b)(2) of the NVRA as part of HAVA’s enactment in
2002. See Br. in Supp. of D’s Mot. to Dismiss at 4-6; Reply Br. in Supp. of D’s
Mot. to Dismiss at 3-5. He is incorrect. HAVA’s amendment has no effect on the
NVRA’s prohibition against targeting non-voters for purging.
The language on which Defendant relies, added by Section 903 of HAVA, is
neither a substantive expansion nor restriction of the pre-existing procedures.
Rather, by its own terms, it is merely a rule of construction: “except that nothing in
this paragraph [prohibiting purging for failure to vote] may be construed to
prohibit a State from using the procedures described in subsections (c) and (d) to
remove an individual from the official list of eligible voters . . . .” 52 U.S.C. §
20507(b)(2) (emphasis added).
The best reading of this provision is as a clarification of the NVRA’s preexisting requirements. The principle in Section 8(b)(2) that registrants may not be
-18-

Case 1:16-cv-00452-TCB Document 19 Filed 05/04/16 Page 19 of 27

purged based on a failure to vote might possibly have been seen as in tension with
the procedures of Section 8(d) during the waiting period after the notice. After all,
Section 8(d) states that registrants for whom there exists reliable evidence of
change of residence and who do not respond to a notice of potential ineligibility
may be purged if they do not vote for two election cycles. So the HAVA proviso
clarified that there is no conflict: after states have identified voters who may have
moved based on reliable, objective, independent evidence, and sent the Section
8(d) notice of their potential ineligibility, states are free to purge if the voter does
not appear to vote for two election cycles. That language does not address the core
issue here: whether a state may use non-voting to trigger the Section 8(d) notice
and cancellation process specifically referenced by the 2002 HAVA amendments.
Defendant correctly notes that the amendment clarifies “that states could and
should remove voters from their registration lists, pursuant to a list maintenance
program, where a voter both failed to return a postage prepaid forwardable notice
and then also failed to vote for two additional federal election cycles.” Br. in
Supp. of D’s Mot. to Dismiss at 5-6; Reply Br. in Supp. of D’s Mot. to Dismiss at
3. We agree with this description of the process to the extent it describes the
Section 8(d) notice and cancellation process. But the question here is whether
Georgia may use non-voting as evidence of ineligibility, i.e., as the trigger for
-19-

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beginning the Section 8(d) notice and cancellation process. The answer was “no”
in 1993. It remains “no” after the 2002 HAVA amendment.
As originally enacted, the NVRA forbids purging registrants based on nonvoting. Pub. L. 103-31, 107 Stat. 77, § 8(b)(2). HAVA did not change that. In
fact, it reiterated that “no registrant may be removed solely by reason of a failure to
vote.” 52 U.S.C. § 21083(a)(4)(A).
But even if the amended language of Section 8(b)(2) were unclear, Section
906 of HAVA rules out Defendant’s interpretation. It specifies that, other than
Section 303(b)’s changes to registration requirements for first-time voters
registering by mail, nothing in HAVA may be read to authorize conduct otherwise
forbidden by the NVRA. 9 52 U.S.C. § 21145. And the legislative history of
Section 903 of HAVA (the NVRA amendment), makes clear that Congress
intended to keep the NVRA’s protections against improper purging in place:
9

Section 906 of HAVA provides: “Except as specifically provided in section
21083(b) [amending Section 6 of the NVRA’s requirements for registrants by
mail] …, nothing in this chapter may be construed to authorize or require conduct
prohibited under any of the following laws, or to supersede, restrict, or limit the
application of such laws:
…
(4) The National Voter Registration Act of 1993…”
52 U.S.C. § 21145(a).
-20-

Case 1:16-cv-00452-TCB Document 19 Filed 05/04/16 Page 21 of 27

The minimum standard requires that removal of those deemed ineligible
must be done in a manner consistent with the National Voter Registration
Act (NVRA). The procedures established by NVRA that guard against
removal of eligible registrants remain in effect under this Act. Accordingly,
H.R. 3295 leaves NVRA intact, and does not undermine it in any way.
H.R. Conf. Rep. No. 107-730, pt. 1, at 81 (2002). Congress’s intent that the 2002
amendment not weaken any NVRA protection—including the bar against using
non-voting to trigger confirmation and removal procedures—is plain.
Defendant’s cites to large swaths of HAVA’s legislative history are
unavailing. They merely restate that the NVRA permits purging some voters who,
per objective and reliable evidence, may be ineligible, after the requisite notice and
waiting period. In fact, that legislative history reiterates the fundamental, and for
Defendant, fatal point that nothing in HAVA was intended to lessen the NVRA’s
protections. See Statement of Sen. Dodd, cited in Br. in Supp. of D’s Mot. to
Dismiss at 13. Thus, if a state’s use of non-voting to trigger the Section 8(d)
notice and cancellation process is not “consistent with the NVRA,” see id., it is
perforce inconsistent with HAVA.
C. HAVA Does Not Require States to Target Non-Voters for Purging
Absent Reliable Evidence They Have Changed Residence.
Defendant also appears to suggest that HAVA requires procedures that
purge nonvoters after a two-cycle waiting period. See Br. in Supp. of D’s Mot. to
-21-

Case 1:16-cv-00452-TCB Document 19 Filed 05/04/16 Page 22 of 27

Dismiss at 3-8. There is no such requirement. Just as Section 903 of HAVA
merely clarifies and approves what the NVRA previously allowed, Section 303 of
HAVA’s statewide database list maintenance provisions only permits action that is
consistent with the NVRA. See 52 U.S.C. § 21083(a)(2),(4).
Yet, Defendant seems to argue that HAVA and the NVRA compel its purge
procedures because states must “both register all eligible applicants and [] remove
all ineligible registered voters from the registration lists.” Br. in Supp. of D’s Mot.
to Dismiss at 5 (second emphasis added). This misreads the law. But more to the
point, procedures for determining “ineligibility” based on a change in residence are
fatally flawed if the basis for establishing ineligibility is a failure to vote. The
NVRA simply does not permit ad hoc guesswork about a voter’s residence to
presume that voter’s ineligibility to vote. To the contrary, objective and reliable
evidence (such as that derived from the NCOA database or an analogous source) is
required. Thus, while a state may seek to purge all ineligible voters from its voter
registration list, it may do so only after making reliable voter eligibility
determinations that comply with the NVRA. Neither the NVRA nor HAVA permit
a state to assume a voter has moved away from the jurisdiction (and thus become
ineligible) merely because that voter declined to vote. 52 U.S.C. §§ 20507(b)(2),
21083(a)(4)(A).
-22-

Case 1:16-cv-00452-TCB Document 19 Filed 05/04/16 Page 23 of 27

D. The Attorney General’s Preclearance of Georgia’s 1997 Purging
Procedures Indicates Nothing About Their Validity Under the NVRA.
Defendant argues that the Department of Justice’s preclearance under
Section 5 of the Voting Rights Act of Georgia’s purging procedures in 1997 after
objecting to a similar submission in 1994 signifies that those procedures were
legally compliant in all respects. Defendant is incorrect about the legal effect of
Section 5 preclearance.
That the Attorney General precleared the 1997 law, but not its 1994
predecessor, merely reflects intervening Supreme Court authority clarifying that
objections to voting changes under Section 5 of the Voting Rights Act cannot be
based on substantive violations of other laws. See Bossier, 520 U.S. at 471. The
1997 preclearance thus signified nothing more than that the 1997 Georgia statute
complied with Section 5: under the available evidence, the state had met its burden
under Section 5 of showing that the statute had neither a discriminatory purpose
nor a retrogressive effect based on race or language minority status. Indeed, the
Attorney General’s Section 5 procedures specifically note that “preclearance by the
Attorney General of a voting change does not constitute the certification that the
voting change satisfies any other requirement of the law beyond that of section
5…” 28 C.F.R. § 51.49. Likewise, the Attorney General’s Section 5 preclearance
-23-

Case 1:16-cv-00452-TCB Document 19 Filed 05/04/16 Page 24 of 27

letters, such as the 1997 preclearance letter to Georgia, explain that Section 5 itself
provides that preclearance does not preclude a subsequent challenge to the change
(including a challenge by the Department or private parties under the NVRA). 10
See Ex. 1 to Br. in Supp. of D’s Mot. to Dismiss. Hence, Defendant’s argument
that the Department’s preclearance under Section 5 of Georgia’s 1997 state
purging law reflects a determination that the law complied with the NVRA is
simply incorrect.
IV.

CONCLUSION
For the foregoing reasons, the United States respectfully submits that

Defendant’s interpretation of the NVRA and HAVA is incorrect and that this Court
should deny Defendant’s motion to dismiss.

10

Section 5 of the Voting Rights Act provides “Neither an affirmative indication
by the Attorney General that no objection will be made, nor the Attorney General's
failure to object, nor a declaratory judgment entered under this section shall bar a
subsequent action to enjoin enforcement of such qualification, prerequisite,
standard, practice, or procedure.” 52 U.S.C. § 10304(a).
-24-

Case 1:16-cv-00452-TCB Document 19 Filed 05/04/16 Page 25 of 27

Date: May 4, 2016
Respectfully submitted,

JOHN A. HORN
United States Attorney
Northern District of Georgia

VANITA GUPTA
Principal Deputy Assistant Attorney General
Civil Rights Division

/s/ Gabriel A. Mendel
GABRIEL A. MENDEL
Ga. Bar No. 169098
Assistant United States Attorney
Northern District of Georgia
600 United States Courthouse
75 Ted Turner Drive, SW
Atlanta, GA 30303
[phone]

/s/ Samuel G. Oliker-Friedland
T. CHRISTIAN HERREN, JR.
RICHARD A. DELLHEIM
SAMUEL G. OLIKER-FRIEDLAND
Attorneys, Voting Section
Civil Rights Division
U.S. Department of Justice
Room 7238 NWB
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
[phone]

-25-

Case 1:16-cv-00452-TCB Document 19 Filed 05/04/16 Page 26 of 27

CERTIFICATE OF COMPLIANCE
I hereby certify that this brief is submitted in 14 point Times New Roman
font, as required by the U.S. District Court for the Northern District of Georgia in
Local Rule 5.1(C).

Date: May 4, 2016

/s/ Gabriel A. Mendel
GABRIEL A. MENDEL
Assistant United States Attorney

Case 1:16-cv-00452-TCB Document 19 Filed 05/04/16 Page 27 of 27

CERTIFICATE OF SERVICE
I hereby certify that the foregoing has been served this day on all counsel of
record through the ECF Filing System.

Date: May 4, 2016

/s/ Gabriel A. Mendel
GABRIEL A. MENDEL
Assistant United States Attorney

Case 1:16-cv-00452-TCB Document 19-1 Filed 05/04/16 Page 1 of 16

EXHIBIT
1

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Case 1:16-cv-00452-TCB Document 19-1 Filed 05/04/16 Page 2 of 16
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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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Plaintiffs,

11

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PETE WILSON, Governor of the
State ofCalifomia; STATE OF
CALIFORNIA,

vs.

13

14
15
16

17
18
19
20
21

22

UNITED STATES OF AMERICA;
JANET RENO, Attorney General;
TREVOR POTTER, Chainnan,
Federal Elections Commission;
FEDERAL ELECTIONS CQMMISSION,

Case No. C 95-20042 JW
Case No. C 94-20860 JW
(Related Action)
ORDER GRANTING
IN PART AND DENYING
IN PART PLAINTIFFS
VOTING RIGHTS
COALITION AND UNITED" ,,'
STATES' MOTION FOR
FURTHER RELIEF

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Defendants.

.

1. INTRODUCTION
Plaintiffs Voting Rights Coalition, et aI. and the United States of America's

23

(collectively, "Plaintiffs") motion for further relief was heard by the Court on

24

Friday, October 20, 1995. 'Robert Rubin appeared on behalf of the Coalition and

25

Holly Wiseman appeared on behalf of the United States Department of Justice.

26

Cyrus Rickards appeared on behalf of Governor Pete Wilson and the named state

27

agencies. In addition, Ms. Darlene Marquez, Co-Chairperson of the Voting

..
. (
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Case 1:16-cv-00452-TCB Document 19-1 Filed 05/04/16 Page 3 of 16

1

Rights Coalition, appeared and testified on behalf of Plaintiffs and Mr. John

2

Mott-Smith, Chief of the Elections Division of the Office of the Secretary of State

3

of the State of California testified on behalf of the Governor and state agencies.

4

Based upon all pleadings filed to date, the testimony of the witnesses

5

presented at the hearing and upon the oral argument of counsel, the Court

6

GRANTS in part and DENIES in part Plaintiffs' motion, as discussed below.

n.

7

8
9

BACKGROUND

On March 2, 1995) the Court wanted PJaintiffs' motion for entry of a
permanent injunction, finding that the National Voter Registration Act

10

("NVRA"), 42 U.S.C. § 1973gg is constitutional. This finding was affirmed by

11

the Ninth Circuit Court of Appeals on July 24, 1995. Voting Rights Coalition, et

12

aI. v. Pete Wilson~ et aI., No. 95-15449 (9th Cir. July 24, 1995). The Court

13

bifurcated the issue of implementation of the NVRA and ord~red the State of

14

California and Governor Wilson to submit an implementation plan to the Court

15

for review.

16

On March 17, 1995, Defendants submitted a plan for implementation of the

17

NVRA. On May 4, 1995, the Court ordered the State to implement the plan

18

within forty-five (45) days and prohibited the removal of names from the voter

19

rolls "in a manner in~onsistent with the NVRA." The parties then met and

20

conferred and attempted to resolve as many of the implementation issues as

21

possible without the intervention of the Court. The parties were able to resolve

22

all of their differences, with the exception of the issues now presented to the

23

Court through Plaintiffs' motion for further relief.

24

Plaintiffs contend that the issues remaining for resolution are mandated by

25

the NVRA and must be implemented by Defendants. The Governor and the

26

named state agencies contend that they are properly implementing the

27
2

Case 1:16-cv-00452-TCB Document 19-1 Filed 05/04/16 Page 4 of 16
(
(

1

requirements which are set forth in the NVRA. Defendants contend that the

2

issues set forth in Plaintiffs' motion are simply not requirements which are

3

mandated by the NVRA nor are such issues necessary to carry out the intent of

4

Congress. These disputed issues are set forth and discussed separately below.

5

III. LEGAL STANDARDS'

6

The "starting point for interpreting a statute is' the language of the statute

7

itself. Absent a clearly expressed legislative intention to the contrary, that

8

language must ordinarily be regarded as

9

Com'n v. GTE

Sylvania~

conclusive~"

Cons.umer Prpduct Safety .

Inc., 100 S.Ct. 2051,2056 (1980). In order to determine

10'

whether such a "clearly expressed legislative intention" exists, the Court looks to

11

the legislative history of the statute. I.N.S. v. Cardoza Fonseca, 107 S.Ct. 1207,

12

1213, n. 12 (1987). "If a court, employing traditional tools of statutory

13

construction, ascertains that Congress had an intention on th.e precise question at

14

issue, that intention is the law and must be given effect." Id at 1221, quoting

15

U.S.A. Inc. v. Natural Resources Defense Council~ Inc., 467 U.S. 837, 843, n. 9"~' ",'

16

(1984). Applying these standards, the Court finds as follows.

17

IV. DISCUSSION

18

A. DMV Voter Registration

19

Pursuant to the NVRA, "[A]ny change of address form submitted in

20

accordance with State law for purposes of a State motor vehicle driver's license

21

shall serve as notification of change of address for voter registration with respect

22

to elections for Federal office for the registrant involved unless the registrant

23

states on the form that the change of address is not for voter registration

24

purposes." 42 U.S.C. § 1973gg.. 3(d). According to this section, a registrant's

25

change of address is presumed to be for the purposes of both the DMV and voter

26

registration, unless indicated otherwise by the applicant.

27
3

(
Case 1:16-cv-00452-TCB Document 19-1 Filed 05/04/16 Page 5 of 16

1

By this motion, Plaintiffs contend that the change of address fonn currently

2

used by the State of Californiareverses the presumption established by the

3

NVRA, so that an applicant's change of address is not presumed to be for both

4

purposes ofDMV and voter registration, unless the applicant indicates otherwise.

5

The fonns currently utilized by the California DMV facilities contains the

6

following options:

7

_

I have moved to a new county and wish to update my voter record ....

8

_

I have move,i, within the same county and wish to update my voter

9

record ....

11

M indicated by the Defendants in their implementation plan, if neither box
is checked, DMV will assume that the applicant does not wish to update his or her .

12

voter record. Plaintiffs contend that such an assumption violates the purpose and

13

intent of the NVRA. Defendants argue that it "is the infonn~d judgment of the

14

Secretary of State that the potential for error and hann is greater through a system

15

of automatic updating of registration records than with the present system."

16

(Declaration of John Mott-Smith, p. 2). However, Defendants also state that the

17

new DMV forms, which will be available within six (6) months, will include

18

separate box which indicates that the applicant does not want his or her voter

19

record updated. In the interim 6 month period, Defendants request that they be

20

permitted to use the present fonns and apply the presumption that if neither box is

21

checked, the applicant does not want his or her address updated for voting

22

purposes.

10'

23

a

Based upon the clear statutory language as contained in the NVRA, the

24

Court finds that the NVRA mandates that any change of address for DMV

25

purposes also be presumed to be for voter registration purposes, unless the

26

applicant "states on the fonn that the change of address is not for voter

27

4

(
Case 1:16-cv-00452-TCB Document 19-1 Filed 05/04/16 Page 6 of 16

1

registration purposes." Therefore, if the State of California chooses to utilize

2

forms which do not provide a space within which an applicant may indicate that

3

he or she does not wish an address change to apply for purposes of voter

4

registration, then the State must apply the presumption that all changes of

5

addresses apply for both DMV and voter registration purposes. Accordingly, the

6

Court will permit the DMV to use the present forms only during the interim

7

period between now and the time that the new forms are ready for use. If no box

8

is checked, the State must assume that the applicant wishes to update his or her

9

voter record.

10

B. Annual Residency Confirmation

11

The NVRA prohibits the removal of the name of any person from the list of

12

official voters for failure to vote. 42 U.S.C. § 1973gg-6(b)(2). Through its

13

"Annual Residency Confirmation and Outreach Procedure"('~ARCOP"), the State

14

of California sends a postcard to voters inquiring whether such voter still lives at

15

the present address. If the card is returned as undeliverable AND the voter does

16

not vote in two (2) subsequent federal elections, then the voter's name is purged

17

from the list. Plaintiffs cont~nd that this procedure violates the NVRA because it

18

impermissibly drops registrants from the list for failure to vote. Defendants

19

contend that the method is permissible because the voter is not dropped simply

20

due to a failure to

21

voter.

-'.:,.'

22

vote~

but also because there is not a current address for such

The Court disagrees with Plaintiffs that the State's procedure, although not

23

directly based on a voter's failure to vote, results in a voter being dropped from

24

the list for his or her failure to vote. Since the State receives a card which states

25

that the card is undeliverable and then the addressee fails to vote in subsequent

26

elections, the Court finds that the State's current "Residency Confirmation and

27
5

.,

Case 1:16-cv-00452-TCB Document 19-1 Filed 05/04/16 Page 7 of 16
(

1

Outreach Program" does not violate the NVRA. Accordingly, the Court DENIES

2

Plaintiffs' motion to discontinue such program.

3

C. California Elections Code Sections Preempted by the NVRA

4

Plaintiffs contend that 16 sections of the California Election Code are

5

preempted by the NVRA and should be enjoined by the Court. The State does not

6

argue that such sections are preempted, but requests that the Court refrain from

7

enjoining specific statutes until all implementation issues are resolved since the

8

State is operating under this Court's Order to comply with the NVRA and is not,

9

therefore, implementing any state election codes which conflict with the NVRA.

10

The Court considers, however, that all implementation issues are now

11

resolved as a result of this hearing. However, the Court is concerned that the

12

statutes which Plaintiffs contend are preempted by the NVRA may contain

13

subsections or subparts that are not preempted. Therefore,

14

the parties review all Elections Code Sections and submit a list to the Court

15

within twenty (20) days of the date of this Order indicating which specific

16

Sections, including subsections and/or subparts, are preempted by the NVRA.

17

Until further order of the Court, all California Elections Code Sections which are

18

preempted by the NVRA may not be enforced by the State of California.

~e

Court orders that
.,~~.

19

D. Compliance Reports

20

Plaintiffs finallYTequest that the Court establish a reasonable reporting

21

mechanism whereby it may monitor the State's compliance with the NVRA.

22

Plaintiffs suggest that the Court require the State to submit a 30-day status report

23

to be followed by quarterly reports as to its compliance with the implementation

24

issues. Defendants argue that such a requirement is burdensome, expensive and

25

unnecessary in light of the requirements of the NVRA.

26

At the hearing, the parties agreed to meet and confer and that the

27
6

Case 1:16-cv-00452-TCB Document 19-1 Filed 05/04/16 Page 8 of 16
(

1

Department of Justice would submit a list to the Court indicating exactly what

2

type(s) of report it would like from the State to ensure compliance with the

3

NVRA. The State then agreed to respond to the Department's list and the matter

4

would be deemed submitted to the Court upon the State's response. The Court

5

therefore DEFERS Plaintiffs' request for compliance reports by the State until the

6

receipt of the State's brief. The Department of Justice shall submit a report

7

within twenty (20) days of the date of this Order. The State shall submit a

8

response to such report within five (5) days of the submission of the Department's

9

report. The matter will then be deemed submitted on the papers. In the interim,

10

the Court retains jurisdiction over any and all implementation issues in this

11

action. If Plaintiffs discover that Defendants are not complying with the

12

provisions of the NVRA, or of this Order, they may request emergency relief by

13

filing an ex parte application with the Court requesting appropriate relief.

14

Therefore; the Court DEFERS Plaintiffs' request that the State submit compliance

15

reports on a quarterly basis.

.'''"!.,r

16

E. Equitable Relief

17

Finally, Plaintiffs requ~st that the Court enter an Order which provides.

18

equitable remedial relief on behalf of those persons who entered social service

19

agencies between January 1, 1995 until the effective date of the Court's Order of

20

Implementation filed on May 4, 1995 and were deprived of the right to register to

21

vote at the agency due to the Governor's failure to timely implement the NVRA.

22
23

Plaintiffs' request does not include any Department of Motor Vehicles ("DMV")

24

such agency. Plaintiffs contend that the Court should order that the Defendants

25
26
27

send each and every person who contacted a social service agency during the

since the parties entered a separate agreement regarding a remedial remedy for

relevant time period a voter registration application.

7

Case 1:16-cv-00452-TCB Document 19-1 Filed 05/04/16 Page 9 of 16

1

The Defendants argue that such a request is extremely costly and

2

unwarranted given the fact that many of the people who contacted a social service

3

agency during the relevant time period are people who continue to have contact

4

with the agency and have since been afforded an opportunity to register to vote at

5

the agency. Therefore, Defendants assert that they should be required only to

6

contact those people who did not and will not return to the agency and inform

7

such people that they may call and request that a voter registration application be

8

sent to them.

9

Based upon all pleadings filed to date, as well as on the oral argument of

10

counsel, the Court orders that the Defendants send each and every person who

11

visited a social service agency between January 1, 1995 through June 10, 1995

12

AND who will not return to a social service agency again within the next six (6)

13

months a voter registration application. Such application mu~t be sent within

14

sixty (60) days of the date of this Order. Defendants shall also file with the Court

15

and serve upon Plaintiffs a copy of the list of applicants to whom a voter

16

registration application is being sent as soon as such list is available to

17

Defendants but no later than forty-five (45) days from the date of this Order. .

·r':..!

V. CONCLUSION

18
19

Based upon ¢.e foregoing, the Court GRANTS Plaintiffs' motion for

20

further relief as to the DMV Voter Registration change of address forms, ·the

21

California Elections Code Sections and remedial equitable relief as set forth

22

herein and DENIES and/or DEFERS Plaintiffs' motion for further relief as to all

23

other issues discussed herein.

24

95102501.civ

25

IT IS SO ORDERED.

26
27
8

....

(
Case 1:16-cv-00452-TCB Document 19-1 Filed 05/04/16 Page 10 of 16

,-

1

1/1
DATED: UC;tvV1 "30I 111 >
'

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3

4
5
6
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14

...

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9

(
Case 1:16-cv-00452-TCB Document 19-1 Filed 05/04/16 Page 11 of 16

1

2
3

4
5
6

7

8
9
10
11
12
13
14
15

This is to certify that copies of this order have been mailed to:
Robert Rubin
LAWYERS' COMJ\1ITTEE FOR CIVIL RIGHTS
OF WITH THE SAN FRANCISCO BAY AREA
301 Mission Street, Suite 400
San Francisco, CA 94105
Mark D. Rosenbaum
ACLU FOUNDATION OF SOUTHERN
CALIFORNIA
1616 Beverly Drive
Los Angeles, CA 90026
Alan L. Schlosser
ACLU FOUNDATION OF NORTHERN
CALIFORNIA
1663 Mission Street, Suite 460
San Francisco, CA 94103
Kathryn K. Imahara
ASIAN PACIFIC AMERICAN LEGAL
CENTER OF SOUTHERN CALIFORNIA
1010 South Flower Street, Suite 302
Los Angeles, CA 90015

16
17
18

William R. Tamayo
ASIAN LAW CAUCUS, INC.
468 Bush Street, Third Floor
San Francisco, CA 94108

19
20
21

22
23
24
25
26

27

Joaquin G . Avila
Voting Rights Attorney
Parktown Office Building
1774 Clear Lake Avenue
Milpitas, CA 95035
Harry Bremond
WILSON, SONSINI, GOODRICH & ROSATI
650 Page Mill Road
Palo Alto, CA 94304-1050

''':.,-

(
Case 1:16-cv-00452-TCB Document 19-1 Filed 05/04/16 Page 12 of 16

1

2
3

David H. Raizman
WESTERN LAW CENTER FOR
DISABILITY RIGHTS
1441 W. Olympic Blvd.
Los Angeles, CA 90015

4
5
6

7

8
9
10·
11
12
13

14
15
16
17
18
19
20
21

22
23 '
24
25
26
27

Elaine B. Feingold
DISABll-ITY RIGHTS AND EDUCATION
DEFENSE FUND, INC.
2212 Sixth Street
Berkeley, CA 94710
Cyrus J. Rickards
OFFICE OF WITH THE ATTORNEY GENERAL
1515 K Street
P.O. Box 944255
Sacramento, CA 94244-2550
Pete Wilson
GOVERNOR OF WITH THE STATE OF CALITORNlA
1st Floor, State Capitol
Sacramento, CA 95814
....

Bill Jones
SECRETARY OF STATE
1230 J Street, Suite 209
Sacramento, CA 95814
.~.

Brenda Premo
DEPARTMENT OF REHABll-ITATION
830 K Street, Room 307
Sacramento, CA 94244
Frank Zolin
DEPARTMENT OF MOTOR VEmCLES
2415 1st Avenue
Sacramento, CA 95818
Eloise Anderson
DEPARTMENT OF SOCIAL SERVICES
744 P Street
Sacramento, CA 95814

~,

Case 1:16-cv-00452-TCB Document 19-1 Filed 05/04/16 Page 13 of 16
(

1

2
3

4
5

6
7

8

9

Holly Lee Wiseman
U.S. DEPARTMENT OF mSTICE
Civil Rights Division, Voting Section
P.O. Box 66128
.
Washington, D.C. 20035-6128
Lawrence E. Noble
FEDERAL ELECTIONS COMMISSION
999 E Street, N.W.
Washington, D.C. 20463
Michael J. Yamaguchi
UNITED STATES ATTORNEY .
450 Golden Gate Avenue
San Francisco, CA 94102

10
11
12

13
14
15
16
17

18
19
20
21

22
23
24
25
26
27

DATED:

I'

/46'

CLERK OF COURT

BY:.~.
Ronald L. Davis
Deputy Clerk

Case 1:16-cv-00452-TCB Document 19-1 Filed 05/04/16 Page 14 of 16
1
2
3
4
5
6

JANET RENO, Attorney General
for the United States
DEVAL L. PATRICK, Asst. Atty General
ELISABETH JOHNSON
BARRY H. WEINBERG
HOLLY LEE WISEMAN
Attorneys, Voting Section
Civil Rights Division
United States Department of Justice
P.O. Box 66128
Washington, DC 20035-6128
Telephone: [phone]

Local counsel:
MICHAEL J. YAMAGUCHI
United States Attorney
No. Dist. of California
MARY BETH UITTI
Chief of Civil Division
WILLIAM MURPHY
South First Street
Suite 371
San Jose, CA 95113
(408) 291-6~/GIN

F I L I:

7

8

Attorneys for UNITED STATES
OF AMERICA and JANET RENO

L

NOV 13 1995
RICHAR

UNITED STATES DISTRICT COUR'JJvOR~~~~U.S.~/~T:IEKING
FOR 'I'HE NORTHERN DISTRICT OF CALIFORNIlJ!fJtICTdnXBMRT
SAN JOSE DIVISION
JOSE
ORN/A

9

10
11

'6

12

Plaintiffs,

CASE NO. C95-20042 JW
CASE NO. C94-20860 JW
(Consolidated)

13

v.

JOINT STIPULATION

14

PETE WILSON, et al.,

UNITED STATES OF AMERICA,
et al.,

15
Defendants,
16

)

)
)
)
)

________________________________1

17
JOINT STIPULATION TO SUBSTITUTE LANGUAGE
18
Corne now all parties to the above-styled causes, by and
19
through their attorneys, and stipulate as follows:
20
That the following language shall be substituted for
21
paragraph 2 on page 5 of this Court's Order filed November 2,
22
1995 (which paragraph begins: "The NVRA prohibits the removal of
23
the name of any person from the list of official voters for
24
failure to vote."):
25
The NVRA prohibits the removal of the name of any
26
person from the list of official voters for failure to
27
28

Joint

St~pulation

Case 1:16-cv-00452-TCB Document 19-1 Filed 05/04/16 Page 15 of 16

1

vote. 42 U.S.C. Sec. 1973gg-6(b) (2).

2

and Voting Rights Coalition contend that the state's

3

proposed list cleaning procedure ("RCOP," for Residency

4

Confirmation Outreach Procedure) violates this section

5

of the Act because the process begins by sending postal

6

inquiries to non-voters.

7

8

9

The United States

As outlined in the state's implementation plan
(Chapter 5, pp. 5-12), RCOP would function as follows:
Approximately 6 months prior to the primary election in

10

even-numbered years and approximately six months after

11

the general election in odd-numbered years, county

12

registrars would send out a nonforwardable residency

13

confirmation postcard to those voters who had not voted

14

within the past six months (in the case of pre-primary

15

RCOP) or in the last general election (in the case of

16

post general election RCOP) .

17

If the postcard were returned as undeliverable

18

without forwarding address information, a forwardable

19

confirmation notice would be sent out pursuant to 42

20

U.S.C. 1973"gg-6 (d) (2) of the NVRA.

21

not returned and the voter did not vote in the next two

22

federal elections, the voter would be removed from the

23

registration list.

24

25
26
27
28

Joint Stipulation

2

If this notice were

Case 1:16-cv-00452-TCB Document 19-1 Filed 05/04/16 Page 16 of 16
-"
/

Respectfully submitted,

1
2

DANIEL E. LUNGREN
Attorney General

Dated: November 9, 1995

3
4
D puty A torney General
Attorneys for Governor
Pete Wilson, et al

5
6
7
8
9

Lawyer. ' Committee for
Civil Rights of the
San Francisco Bay Area
'Attorneys for Voting Rights
Coalition

10
11
12
13
14

General·
15
16
Attorneys, Voting Section
Civil Rights Division
U.S. Department of Justice
Attorneys for United States
and Janet Reno

17
18
19
20
21
22
23
24
25
26
27
28

Joint Stipulation

3

Case 1:16-cv-00452-TCB Document 19-2 Filed 05/04/16 Page 1 of 3

EXHIBIT
2

Case 1:16-cv-00452-TCB Document 19-2 Filed 05/04/16 Page 2 of 3

Office of the Assistant Attorney General

Washington, D. C. 20530

11,

Case 1:16-cv-00452-TCB Document 19-2 Filed 05/04/16 Page 3 of 3

to the Secretary of State on June 19, 1995, December 7, 1995, and November 5, 1996, these
procedures violate the NVRA.
Our concern is that no registered voter in the State of South Dakota be purged from
the registration list for federal elections because of his or her failure to vote. Thus, we intend
to move forward on this matter expeditiously. However, we are willing to delay filing the
complaint for a short period of time if the State is willing to resolve this matter voluntarily
and negotiate a consent decree that would be filed with the complaint.
Under these circumstances, we request that you apprise us within ten days whether the
State wishes to discuss settlement of this matter. Patricia O'Beirne, an attorney in the Voting
Section, will be in contact with your office. In the meantime, Ms. O'Beirne can be reached at
202-307 -6264.

Sincerely,

Isabelle Katz Pinzler
Acting Assistant Attorney General
Civil Rights Division

Case 1:16-cv-00452-TCB Document 19-3 Filed 05/04/16 Page 1 of 3

EXHIBIT
3

Case 1:16-cv-00452-TCB Document 19-3 Filed 05/04/16 Page 2 of 3

Office of the Assistant Attorney General

WaSmllJ1ton. D. C. 20530

11, 1997

of

Case 1:16-cv-00452-TCB Document 19-3 Filed 05/04/16 Page 3 of 3

Our concern is that no registered voter in the State of Alaska be purged from the
registration list for federal elections because of his or her failure to vote. Thus, we intend to
move forward on this matter expeditiously. However, we are willing to delay filing the
complaint for a short period of time if the State is willing to resolve this matter voluntarily
and negotiate a consent decree that would be filed with the complaint.
Under these circumstances, we request that you apprise us within ten days whether the
State wishes to discuss settlement of this matter. Patricia O'Beirne, an attorney in the Voting
Section, will be in contact with your office. In the meantime, Ms. O'Beirne can be reached at
202-307-6264.

Sincerely,

Isabelle Katz Pinzler
Acting Assistant Attorney General
Civil Rights Division

Attachment 2

.,'.

-----:,~

us. Department or Justice
Civil Rights Division

Offl« of/h, Au/,IInt Attorn,y G,n,n'

"'/I,h/tlI/on. D.C. 20$JO

october 24, 1994
Dennis R. Dunn, Esq.
Senior Assistant Attorney General
40 Capital Square, S.W.
Room 132
Atlanta, Georgia 30334-7298
Dear Mr. Dunn:
This refers to the submission to the Attorney General
pursuant to Section 5 of the voting Rights Act of 1965, as
amended, 42 U.S.C. 1973c, of Act No. 1207 (1994) of the state of
Georgia, which adopts changes (listed in Attachment A) to voter
registration and related procedures to, inter alia, implement the
National Voter Registration Act of 1993 ("NVRA"), 42 U.S.C.
1973gg et seq.
We received your responses to our request for
additional information on August 24 and October 18, 1994; other
supplemental information was received on October 20, 1994.
We have given careful consideration to the information you
have provided, as well as to information from other interested
persons. Except as set forth below, the Attorney General does
not interpose any objection to the specified changes. However,
we note that Section 5 expressly provides that the failure of the
Attorney General to object does not bar subsequent litigation to
enjoin the enforcement of the changes. See the Procedures for
the Administration of Section 5 (28 C.F.R. 51.41).
In this
regard, the granting of section 5 preclearance does not preclude
the Attorney General or private individuals from filing a civil
action pursuant to section 11 of the NVRA, 42 U.S.C. 1973gg-9.
We cannot reach the same conclusion with respect to the
procedures for removing registered voters from the registration
list, insofar as the procedures provide for sending a
registration confirmation notice to persons who have not voted or
otherwise had "contact" during a three-year period.
In this
regard, we note that the NVRA specifically provides with respect
to such voter removal procedures that the procedures "shall not
result in the removal of the name of any person from the official
list of voters registered to vote in an election for Federal
office by reason of the person's failure to vote." Section
8(b)(2), 42 U.S.C. 1973gg-6(b) (2).

--

- 2 -

Under the proposed procedures, registered voters in Georgia
who fail to vote (or otherwise have "contact" with the election
administration system) during a three-year period would be
specifically targeted to be included in the state's purge
procedures. This result is directly contrary to the language and
purpose of the NVRA, and is likely to have a disproportionate
adverse effect on minority voters in the state. The proposed
procedures thus appear to eliminate certain of the gains to
minority voters mandated by Congress in enacting the NVRA and,
accordingly, "would lead to a retrogression in the position of
racial minorities with respect to their effective exercise of the
electoral franchise." Beer v. united states, 425 U.S. 130, 141
(1976) .
Under Section 5 of the Voting Rights Act, the submitting
authority has the burden of showing that a submitted change has
neither a discriminatory purpose nor a discriminatory effect.
Georgia v. United states, 411 U.S. 526 (1973); see also 28 C.F.R.
51.52.
In light of the considerations discussed above, I cannot
conclude, as I must under tQe Voting Rights Act, that your burden
has been sustained with regard to the specified voter removal
procedures.
Therefore, on pehalf of the Attorney General, I must
object to the voter removal procedures proposed by Act No. 1207
insofar as they provide a "no contact" rule for triggering the
mailing of a registration confirmation notice.
We note that under Section 5 you have the right to seek a
declaratory judgment from the United states District Court for
the District of Columbia that the proposed changes have neither
the purpose nor will have the effect of denying or abridging the
right to vote on account of race or color. See 28 C.F.R. 51.44.
In addition, you may request that the Attorney General reconsider
the objection. See 28 C.F.R. 51.45. However, until the
objection is withdrawn or a judgment from the District of
Columbia Court is obtained, the objected~to change continues to
be legally unenforceable. See Clark v. Roemer, 500 U.S. 646
(1991); 28 C. F. R. 51.10.
In addition, there are two other NVRA compliance issues
raised by Act No. 1207. First, Act No. 1207 may be read as
requiring that a registrant placed on the inactive registration
list will be purged unless the person votes within the prescribed
period, although the NVRA specifies that appearing to vote
(without voting) will terminate the purge process for that voter.
section 8(d) (1), 42 U.S.C. 1973gg-6(d) (1). However, in your
letters of October 18 and 20, 1994, you clarified that appearing
to vote or otherwise having "contact" during the prescribed
period is sufficient to avoid being purged. Second, the NVRA
requires that agencies designated for voter registration include
"all offices in the State that provide State-funded progr~ms
primarily engaged in providing services to persons with
d'isabilities." Section 7(a)(2)(B), 42 U.S.C. 1973gg-5(a) (2) (B).

- 3 -

Act No. 1207 designates only offices that provide such programs
to persons with physical disabilities, a limitation not provided
in the NVRA. We understand that the state is reviewing this
matter and is considering whether the secretary of state should
exercise the discretionary authority granted by Act No. 1207 to
designate as voter registration sites those agencies that provide
programs to persons with nonphysical disabilities.
Finally, we note that the preclearance of those provisions
of Act No. 1207 that enable or permit the state or its political
subdivisions to adopt future voting changes does not constitute
preclearance of those future changes and, accordingly, Section 5
review will separately be required when those changes are adopted
or finalized. See 28 C.F.R. 51.15. The matters for which
section 5 review will be required include (but are not limited
to): the designation of additional locations where registration
may occur or changes in existing locations; the statewide voter
registration application and any other forms developed to
implement the NVRA; the procedures to be used to integrate voter
registration into the driver's license application, renewal, and
updating process; and the cost or charge prescribed for a copy of
the voter registration li&t.
To enable us to meet our responsibility to enforce the
Voting Rights Act, please inform us of the action the State of
Georgia plans to take concerning this matter. If you have any
questions, you should call Special section 5 Counsel Mark A.
Posner, at [phone].

~in~~~

Q

Deva
Assistant Attorney General
civil Rights Division

-

,

Attachment A -- Changes Enacted by Act No. 1205 (1994)
1. Assignment of responsibility to the Georgia secretary of
state to coordinate implementation of the NVRA, and to establish
and maintain the lists of active and inactive registered voters.
2. Adoption of the registration form prescribed by the
Federal Election Commission and promulgation of a uniform
statewide voter registration application by the Georgia Secretary
of state.
3. voter registration by the state Department of Public
Safety (including the adoption of procedures and a voter
registration application).
4. voter registration at "voter registration agencies,"
including every office that provides public assistance, every
office that provides state funded programs primarily engaged in
providing services to persons with physical disabilities, every
armed forces recruitment office, and other offices to be
designated by the Georgia Secretary of State (including
promulgation of a voter ragistration inquiry/declination form by
the Georgia Secretary of state).
l

5. Voter registration by mail (including the promulgation
of a mail registration application by the Georgia Secretary of
State).
6. An amendment to the list of permissible satellite
registration locations.
7.
Procedures when insufficient or false information is
provided on a voter registration application.
S. Standards governing voter registration deadlines and the
acceptance of voter registration applications, and the
preparation of registration lists.
9. The requirement that voter registration applicants be
notified of the disposition of their applications.
10. Amended procedures concerning registrants who move or
whose registration record reflects that they have moved.

11.

An amended registration card.

12.
Procedures for voter registration list maintenance,
including the placement of registrants on and the use of an
inactive registration list, and the removal of names from the
list of eligible registered voters.

13.

Amended procedures governing challenges to the
of persons to register and vote.

~ligibility

•

- 2 -

14. The provision that the appointment of deputy registrars
is discretionary rather than mandatory.
15.
Amended qualifications for registrars and deputy
registrars.
16. A definition of which voter registration information is
public (including authorizing the Georgia Secretary of state to
establish by rule or regUlation the cost to be charged for a copy
of a registration list).
17.
Procedures for use of county registration lists in
municipal elections, and the discontinuation of existing
municipal separate registration systems.

18.

Penalties for unlawful voter registration conduct.

19. Provisions regarding registration using the post card
application provided by the Overseas citizens Absentee voting Act
and related matters.
~

Attachment 3

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA,

)
)

Plaintiff,

)
)

v.

)

Civil Action No. 95-CV-382

)

COMMONWEALTH OF PENNSYLVANIA,
et al.,
Defendants.
ASSOCIATION OF COMMUNITY
ORGANIZATIONS FOR REFORM NOW
(ACORN), et al.,
Plaintiffs

v.
THOMAS J. RIDGE, et al.,
Defendants.

)

(JUDGE BUCKWALTER)

)
)
)

)
)
)
)
)

)
)
)
)
)
)

civil Action No. 94-CV-7671
(JUDGE BUCKWALTER)

UNITED STATES' MOTION FOR SUMMARY JUDGMENT
On March 30, 1995, this Court declared that the Commonwealth
of Pennsylvania was not in compliance with the National voter
Registration Act of 1993, 42 U.S.C. §§ 1973gg to 1973gg-10
("NVRA"), a constitutional act of Congress.

As detailed in the

attached memorandum, while voter registration has begun
successfully at many sites in Pennsylvania, Pennsylvania remains
out of compliance with the NVRA in several important respects
even some sixteen months after this Court's order.
There are no genuine issues of material fact which would
prevent the remaining issues from being determined at this time.
The press of the upcoming elections and deadline for voter
registration makes it imperative that the defendants be ordered
to swiftly come into compliance with the NVRA and extend to its
citizens, particularly those who are disabled, the easy
opportunities for voter registration mandated by Congress.

MICHAEL R. STILES
United States Attorney

.:;---...

ELI' -tyETH JO)INSON
BARRX . WEINBERG
JUDYBETH GREENE
Attorneys, Voting Section
Civil Rights Division
Department of Justice
P.o. Box 66128
Washington, D.C. 20035-6128
[phone]

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA,
Plaintiff,

v.

)
)
)
)
)

civil Action No. 95-CV-382

)

COMMONWEALTH OF PENNSYLVANIA,
et al.,

(JUDGE BUCKWALTER)

)

)
)

Defendants.
ASSOCIATION OF COMMUNITY
ORGANIZATIONS FOR REFORM NOW
(ACORN), et al.,
Plaintiffs,

v.
THOMAS J. RIDGE, et al.,
Defendants.

)
)

)
)
)

)
)
)
)

Civil Action No. 94-CV-7671
(JUDGE BUCKWALTER)

)
)

)

MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
I.

SUMMARY
On March 30, 1995, this Court declared that the Commonwealth

of Pennsylvania was not in compliance with the National Voter
Regist,ration Act of 1993, 42 U.S.C. 1973gg ("NVRA"), a
constitutional act of Congress.

While voter registration has

begun at many sites and has been successful where properly
implemented, Pennsylvania remains out of compliance with the NVRA
in several important respects some sixteen months after this
Court's order.
More than 100,000 persons with disabilities served at state
funded programs have been denied the voter registration
opportunities mandated by the NVRA due to the state's refusal to
designate such offices as NVRA sites.

Additionally, state

legislation passed in late June 1995 affects the cancellation of
voter registration contrary to the NVRA and this Court's orders
of March 30, April 24 and May 4, 1995.

Finally, the state

refuses to provide relief to those not given the voter
registration opportunities mandated by Congress during the
state's five months of total noncompliance.
The state was simply wrong when it told the court 1 that the
united states, by raising issues relative to the state's
violation of the NVRA, is seeking to micromanage the state
agencies and programs that fall within the scope of the NVRA.
In fact, our position is just the opposite: it is the
responsibility of the state to manage state agencies and programs
to assure that its agencies comply with the NVRA, but the state
has not dQne so here.

Had the state assumed its

responsibilities, there would be no need for the present action.
The fact that the state has abrogated its responsibilities
to fully enforce the NVRA and to take the steps necessary to
monitor its compliance has forced us to address these matters to
the Court.

We urge the Court to enter summary judgment against

the defendants on these issues 2 and order declaratory and

1

See Defendant's Response to United States' Response to
Court's Order to Show Cause at 4.
2

Defendants' response to the united States' Second Set
of Interrogatories had not been received by the united States
until the late afternoon of August 6, 1996. We are in the
process of reviewing those responses and should they demonstrate
that other issues are amenable to summary judgment, we will file
supplemental papers as soon as possible.
2

injunctive relief requiring the state to take the steps it should
have taken on its own to rectify this continued noncompliance.
II.

PROCEDURAL HISTORY
The National voter Registration Act of 1993 went into effect

on January 1, 1995.

As the Commonwealth of pennsylvania.had not

taken action to provide its citizens with the Act's voter
registration opportunities and protections by that date, the
united states filed the instant action on January 23, 1995.
On March 30, 1995, this Court ruled that the NVRA was a
constitutional act of Congress and set a status conference to
discuss any necessary or proper relief. 3

After additional

status conferences and negotiations between the parties, a
stipulated order requiring defendants to comply with the mandated
provisions of the NVRA was entered on April 24, 1996, and an
agreed implementation plan (Defendants' Second Amended
Implementation Plan) was ordered into effect on May 4, 1996.

On

May 4, 1996, an order also was entered pre-empting specific
Pennsylvania statutes which conflicted with the NVRA.

3

Subsequent to this Court's order upholding the
constitutionality of the NVRA, other courts reached the same
conclusion and the Supreme Court denied certiorari on the state
of California's appeal of the Ninth Circuit's holding that the
NVRA is constitutional.
See, Assoc. of Community Organizations
for Reform Now v. Edgar, 800 F.Supp. 1215 (N.D. Ill.), aff'd, 56
F.3d 791 (7th Cir. 1995); Wilson v. united States, 878 F.Supp.
1324 (N.D. Cal.), aff'd, Voting Rights Coalition v. Wilson, 60
F.3d 1411 (9th Cir. 1995), cert. denied, 116 S.ct. 815 (1996);
Virginia v. united States, Case Nos. 3:95-CV-357, 3:95-CV-531,
3:95-CV-532 (E.D. Va. October 3, 1995) (unpublished ruling and
consent order); Condon v. Reno, 913 F.Supp. 946 (D.S.C. 1995);
Associations of Community Organizations for Reform Now v. Miller,
912 F.Supp. 976 (W.D. Mich. 1996.
3

The plan included two tiers of implementation dates (some in
June 1995 and others in July 1995) in order to allow the
pennsylvania legislature an opportunity to pass legislation which
would comport with the NVRA and thereby avoid a dual registration
system.

On June 30, 1995, Governor Ridge signed Act No. 1995-25

entitled the "Pennsylvania voter Registration Act.,,4
On January 3, 1996, this Court issued an order to show cause
by June 30, 1996, why the instant action should not be dismissed.
After receiving submissions by the parties and discussing the
posture of the case, the Court ruled on July 22, 1996, that it
would retain jurisdiction to resolve the remaining issues in the
case and entered an order setting a schedule for motions for
summary and/or partial summary judgment.

As we demonstrate

below, the issues presented are eminently appropriate for summary
judgment given the lack of material factual disputes.

See

generally, Rule 56(b), Fed. R. civ. P.; Ransburg Electro-coating
Corp. v. Landsale Finishers, Inc., 484 F. 2d 1037, 1039 (3rd Cir.
1973) (summary judgment appropriate where there is no genuine
issue of material fact remaining after examination of pleadings,
depositions, answers to interrogatories, and admissions on file,

4

The legislation provides for agency-based and motor
vehicle-based voter registration, and NVRA-complying voter
registration forms.
It also provides for the reinstatement of
all registrants who had been purged from the state voter
registration rolls under procedures violative of the NVRA for
purposes of federal election.
section 525 of the new law names
the clerk of Orphans Courts and marriage license bureaus as
additional voter registration agencies.
25 P.S. § 961.525.
4

together with affidavits).

Moreover, we are entitled to summary

judgment on the issues presented as a matter of law.
III. PENNSYLVANIA HAS FAILED TO DESIGNATE AS VOTER REGISTRATION
AGENCIES OFFICES WHICH SERVE PERSONS WITH DISABILITIES
section 7(a) (2) (B) of the NVRA, 42 U.S.C. 1973gg-5(a) (2) (B),
provides that "[e]ach State shall designate agencies as voter
registration agencies all offices in the state that provide
state-funded programs primarily engaged in providing services to
persons with disabilities."

The state has designated a few

offices which serve some Pennsylvanians with disabilities, yet
the overwhelming majority of the persons with disabilities who
receive services at state-funded programs in Pennsylvania are not
provided with the voter registration opportunities mandated by
Congress.
For example, the state properly designated as voter
registration sites the state-operated in-patient psychiatric
facilities run by the Office of Mental Health which served 8,027
people in fiscal year 1994/1995. 5

Yet the 147,000 individuals

over age 18 who received out-patient services, in-patient
services and other mental health related services at programs
funded by the Office of Mental Health during the same fiscal year
were not provided the NVRA-mandated voter registration
opportunities.

Deposition of Robert wild, Director of the Bureau

of Management, of the Office of Mental Health in the Department

5

See Exhibit 1.
5

of Public Welfare,

("wild Depo.lI)

(Exhibit 2) at 15-16; see also

Exhibit 3 (number of clients served in each category of service).
There is no question that these programs are "state-funded."
These programs in fact are funded almost totally by the state.
As explained by Robert Wild, most of the programs are funded 90100% by the state unless medicaid covers it; if there is medicaid
coverage the state provides 47% and the federal government
provides 53% of the funding.
25, 27-28.

wild Depo. at 10-12, 14, 18, 23,

In either instance, the programs are state-funded. 6

Similarly, for the Office of Mental Retardation stateoperated residential facilities that served 3,307 7 adults in
fiscal year 1994/95 were designated as voter registration
agencies, whereas the programs funded through Office of Mental
Retardation which served 52,574 8 adults in the same time period
were not designated.

These programs also are funded 90% to 100%

:-;

by the state unless there is medicaid coverage, in which case the

6
These sites can incorporate voter registration services
into the main points of entry into the system. Thus, while there
are hundreds of such programs, the point of entry is through one
of 91 base service units operated by counties through their
offices of Mental Health and Mental Retardation; these offices
are 90% state-funded. wild Depo. at 6, 9-10.

7

See Exhibit 4.

8
See Exhibit 4.
In order to reach this figure we
subtracted the early intervention total (included 0-3 year olds)
from total caseload served in FY 1994/95.

6

state provides 47% and the federal government provides 53% of the
funding. 9

In either instance, the programs are state-funded.

The Office of Aging funds managed care services which serve
approximately 74,845 people per year 10 through home delivered
meals, counseling, personal care, home health, daily services,
placement services, attendant care,ll medical equipment, care
management II, and some home support.

Deposition of John J.

Detman, Division Chief, Division of community Services,
Department of Aging, at 17-19, 44 ("Detman Depo.II)

(Exhibit 5).

As all of the people in these programs have some degree of
disability, Detman Depo. at 17-18, they are precisely the
population which Congress intended to reach. 12

9
Deposition of Edward Manning, Regional Program Manager
for the Central Region Office of Mental Retardation, Department
of Public Welfare, ("Manning Depo.") (Exhibit 43) at 15-17.

10
As John Detman, Division Chief, Division of community
Services in the Department of Aging, noted in his deposition,
this number may include some duplication, i.e., people who
receive more than one type of service may be counted twice.
Detman Depo. at 45-47.
However, the Department of Aging serves
disabled persons in other programs as well, and this number would
not necessarily include all of these individuals.
Detman Depo.
at 46-47.
11

The Department of Public Welfare also has an attendant
care program which serves approximately 2,000 persons per year
using federal and state funds.
This program also is not
designated for voter registration.
Letter of July 15, 1996; from
Calvin Koons to Judybeth Greene; Exhibit 6.
12

All of these individuals apply for services through an
"OAF" form which they fill out with assistance from a program
provider, often in their own home.
Detman Depo. at 18-19. The
voter registration mandated by the NVRA easily could be
integrated into these one-on-one transactions.
7

other state-funded programs which serve disabled persons but
are excluded from the state's voter registration program include:
• The Department of Education's Adult Basic Literary
Program which serves 60,000 adults per year, many of
whom are disabled. Deposition of Donald E. Lunday,
Chief of the Regional Programs Division, Bureau of
Adult Basic and Literacy Education, Pennsylvania
Department of Education ("Lunday Depo.") (Exhibit 7) at
4-5.
Indeed some of these programs are specifically
geared for disabled persons such as the Scranton School
for the Deaf, the western Pennsylvania School for the
Deaf, Goodwill Industries of Pittsburgh, Harim Andrews
Center, and Threshold Rehabilitation.
Lunday Depo. at
5-7, 16-18.

•

The Special Education Programs which serve over

10,000 adult students (i.e., 18-21 year olds) who have

disabilities.
Deposition of Samuel Bashore, Special
Education Advisor, Bureau of Special Education,
Pennsylvania Department of Education ("Bashore Depo.")
(Exhibit 8) at 5, 18.
• The eight independent living centers funded by the
state,13 which provide services to persons with
disabilities.
Deposition of Raymond Walker,
supervisor, Facilities and Grants Management Section,
Pennsylvania Office of vocational Rehabilitation
("Walker Depo.) (Exhibit 9) at 4-5.
• The Association for the Blind which has many
.programs serving visually handicapped persons which are
funded by state block grant funds.
Deposition of
Eugene Barton, Director of Field Operations, Bureau of
Blindness and Visual Services, Office of Social
Programs, Pennsylvania Department of Welfare (liE.
Barton Depo.II) (Exhibit 10) at 17-19, 27, 31. 14

13
There are an additional six independent living centers
funded by the federal government. Walker Depo. at 6.
14
The state represented that it would provide figures on
the number of persons served in these programs, E. Barton Depo.
at 31-32, but to date, has not done so.
8

• The paratransit services provided through the
Department of Public Welfare and through the
Pennsylvania Department of Transportation. 15
Pennsylvania's failure to provide voter registration at
these programs thwarts the NVRA's goal of increasing voter
registration opportunities for persons with disabilities.

Many

of the programs discussed above, such as independent living
centers, paratransit and education programs, were specifically
mentioned in the legislative history as programs which must
provide voter registration.

The Senate Report explains that the

final NVRA legislation was expanded to,
include[] a definition that is intended to have more
extensive outreach to persons with disabilities. While
it would include vocational rehabilitation offices, it
would also extend to many other agencies that have more
contact on a regular basis with persons with
disabilities such as, but not limited to, those
agencies which provide transportation, job training,
education counseling, rehabilitation or· independent
living services.
S. Rep. No. 103-6, 103rd Cong., 1st Sess.
Report") at 29.

(1993)

("Senate

Indeed the legislative history of the NVRA

strongly evidences an intent that the obligation in
section 7(a) (2) be read broadly:
The bill has a broad scope with regard to agency-based
registration for persons with disabilities.
As noted
by a number of organizations representing the disabled
community, particularly'Disabled AND Able to Vote,
there is no one agency which provides services to all,
or even part of the disabled population. Vocational
rehabilitation services, for example, reach no more
15

Although the state has not been able to provide
information regarding the number of people served through this
program, we understand that there are thousands of individuals
served through such programs.
9

than one disabled person out of 15 at anyone time
during their entire life.
Independent living centers
are overwhelmingly located in large cities and do not
serve those persons with disabilities who live in
suburbs, small towns, or rural areas. Thirty-seven
percent of all persons with disabilities acquire the
disability after the age of 55. As a result,
employment education and training programs rarely
provide services to these individuals.
In order to
access this isolated population, it is essential that
as many locations as possible which provide services to
disabled Americans offer voter registration services.
senate Report at -16.
In short, there is no question but that the Commonwealth of
Pennsylvania is in violation of the NVRA in its failure to
provide voter registration at state-funded programs serving
persons with disabilities.

To secure the benefits mandated by

Congress for this under served population,16 the united states
requests this Court to enter an order directing the state to
designate these NVRA-mandated offices for voter registration and
to take responsibility for assuring that those agencies perform
their functions appropriately: to develop and conduct training
16
We sought to obtain information from the state under
Rule 30(b) (6), Fed. R. civ. P. about the scope of state-funded
programs which serve persons with disabilities.
See united
states Notice of Deposition dated June 27, 1996, Exhibit 11.
But the state did not provide a list of such programs and did not
produce a witness to provide an overview of such programs.
In
fact, during one deposition counsel for the state instructed a
state official not to answer'a question about whether he knew of
other state-funded programs which served persons with
disabilities. R. Barton Depo. at 24-25, Exhibit 12.
Given the decentralized nature of many of the programs
serving persons with disabilities, there are likely to be statefunded programs which serve persons with disabilities in addition
to those we have described above.
It is the state which is
charged under the NVRA to designate the appropriate agencies and
programs which serve persons with disabilities; Pennsylvania has
not done so.

10

programs for achieving compliance in these offices, to develop a
reporting system which will include these sites and to designate
an individual responsible for coordinating compliance in these
sites. 17
IV. PENNSYLVANIA LAW IS IN CONFLICT WITH THE NVRA
This Court held in its order dated March 30, 1996, that the
NVRA pre-empts contrary state law and found that several aspects
of then-current Pennsylvania law were pre-empted by the NVRA.

In

a subsequent order dated May 4, 1995, the Court specified
particular provisions of then-current Pennsylvania law which were
pre-empted by the NVRA including its canvass provisions and nonvoting purge provisions.
The Pennsylvania Voting Rights Act ("PVRA"), passed after
those orders, retains several features of the pre-empted laws.
Under one section of the PVRA individuals who have not voted in
five years are removed from the registration rolls if they do not
vote by the second general federal election after the date of a
mailing.

25 P.S. § 961.1901(b) (3).

Another section allows the

use of a canvass to purge from the registration rolls voters who
may have moved.

25 P.S. § 961.1901(b) (2).

A third section of

the new Pennsylvania law, not specifically addressed by the
earlier orders of the Court, now prevents the registration of
applicants if their voter identification card is returned by the

17
We address the question of recapturing lost voter
registration opportunities for persons with disabilities who have
applied and recertified for these programs since January 1, 1995,
in section VI, infra.

11

Post Office as undeliverable, 25 P.S. § 961.528(b) (2); this
provision also results in the removal of persons from the
registration rolls in a manner contrary to the NVRA.
The state has urged that these claims should not be
considered as they were not enacted at the time this lawsuit was
filed and do not conflict facially with the NVRA.

See,

Defendant's Response to Plaintiffs' Answer to Rule to Show Cause
at 6-7.

As explained below, these laws are in direct conflict

with the NVRA and these matters are ripe for review.

Moreover,

no amended pleadings or supplemental pleadings are necessary in a
situation such as the one at bar.

This matter was filed to bring

the state into compliance with the NVRA.

The Court specifically

ruled that "the Pennsylvania law requiring voters to be purged
for failure to vote in two years ....

[and] the Pennsylvania law

permitting removal of names from voter" registration up to fifteen
days before a primary or general election .••
the [NVRA),"

[are] contrary to

Order, March 30, 1995, and later declared a number

of state statutes to be pre-empted to the extent they conflicted
with the NVRA.

Order, May 4, 1995.

Moreover, in its May 4, 1995

order, the Court also declared "any other provision of
Pennsylvania law which conflicts with the NVRA" are "pre-empted
to the extent that they conflict with the NVRA."
~

l(j) at 4.

Order, May 4,

These orders cannot be read to be as limited as the

state would like -- these orders were not a license for the state
to enact additional laws in conflict with the NVRA.

12

The jurisdiction of the Court is not so limited as the state
argues.

See Hutto v. Finney 437 U.S. 678, 678 (1978)

(holding

that after the State's progress toward compliance proved
unsatisfactory, the

Dist~ict

Court's

e~uitable

jurisdiction

provided ample authority to fashion a remedy which went beyond
its earlier orders).

This Court has continuing jurisdiction to

modify its decrees as equity may require, John Simmons Company v.
Grier Brother Company, 258 U.S. 82, 88-89 (1921), united states
v. United Shoe Machinery Corp., 391 U.S. 244 (1968), and has
broad discretion to fashion its remedy to include justice.
Louisiana v. United States, 380 U.S. 145 (1965).
Further, given the purpose and function of pleadings,18 no
supplemental pleadings are necessary.

See,~,

Frazier v.

Southeastern Pennsylvania Tranp. Auth., 785 F.2d 65, 67-68 (3rd
Cir. 1986)

(a complaint is sufficiently specific if "sufficient

facts are pleaded to determine that the complaint is not
frivolous, and to provide defendants with adequate notice to
frame an answer."); Ash v. Wallenmeyer, 879 F.2d 272

(7th Cir.

1989) (stating that the federal rules do not contemplate that
parties will amend their pleadings to reflect new information
obtained in the discovery process); and Erff v. Markhon
Industries, 781 F.2d 613, 617 ("pre-trial order[s]
18

[are] treated

As Wright and Miller explain, "Historically, pleadings
have served four major functions: (1) giving notice to the nature
of a claim or defense; (2) stating the facts each party believes
to exist; (3) narrowing the issues that must be litigated; and
(4) providing a means for speedy disposition of sham claims and
insubstantial defenses." 5 Charles A. Wright and Arthur R.
Miller, Federal Practice and Procedure, § 1202 at 68 (1990).
13

as superseding the pleadings and establish[ing] the issues to be
considered at trial.,,)19

The state clearly has had notice

since the original pleading, and throughout this litigation, that
we challenge those state statutes which conflict with the NVRA,
and this Court's orders have provided further notice that such
conflicts must be resolved against the state.

Accordingly, this

Court should declare that these provisions are pre-empted to the
extent that they violate the NVRA.
A.

. Pennsylvania's Purge for Non-Voting is in Violation of
the NVRA

section 8(b) (2) of the NVRA sets forth a straightforward
prohibition on purging registrants for failure to vote:
(b)
Any state program or activity to protect the
integrity of the electoral process by ensuring the
maintenance of an accurate and current voter
registration roll for elections for Federal office -

(2) shall not result in the removal of the
name of any person from the official list of
voters registered to vote in an election for
Federal office by reason of the person's
failure to vote.
42 U.S.C. 1973gg-6(b) (2).

After this Court declared Pennsylvania's earlier non-voting
purge to be contrary to the NVRA, Order March 30, 1995,

~

3,

the

state enacted a new law using failure to vote in five years as a
19
While we maintain that there is no need for amending or
supplementing the complaint, if the court determines that such
amendment is appropriate we would ask that the pleadings be
deemed "amended" pursuant to Rule 15(b) of the Federal Rules of
civil Procedure, in order to bring the pleadings into conformance
with the evidence.
14

trigger for a list maintenance process which, itself, then uses
non-voting as the basis for purging the individual from the
registration rolls.

section 1901(B) (3) of the PVRA requires that

the Commission shall send a notice pursuant to
Subsection (D) to any elector who has not voted nor
appeared to vote during the period beginning five years
before the date of the notice and ending on the date of
the notice and for whom the Board of Elections did not
during that period in any other way receive any
information that the voter still resides in the
registered election district.
25 P.S. § 961.1901(b) (3).

The notice triggered by these five

years of non-voting is a postage prepaid and preaddressed return
card, sent by forwardablemail on which the elector may state his
or her current address.

If the registrant does not return the

notice confirming his or her address or appear to vote during the
period beginning on the date of the notice and ending on the day
after the second general election which occurs after the notice,
his or her registration will be cancelled. 20

section

20
The notice is the same as the section 8(d) (2) notice
prescribed by the NVRA for removal of persons for whom evidence
shows that they may have changed addresses. The Pennsylvania
notice states:

if the elector did not change residence or changed
residence but still resides in the county, the elector
must return the card not later than 30 days prior to
the next election.
If the card is not returned,
affirmation or confirmation of the elector's address
may be required before the elector is permitted to vote
in an election during the period beginning on the date
of the notice and ending on the day after the date of
the second general election for federal office that
occurs after the date of the notice.
If the elector
does not vote in an election during that period, the
elector's registration shall be cancelled.
section 1901(B) (2) (I) (A) of the PVRA.
15

1901(B) (2) (I) (A) of the PVRA; 25 P.S.

§

961.1901(b) (2) (I) (A).

Thus, a voter gets a notice for failing to vote, and it is for
failing to vote in the ensuing period after the notice is sent,
that a registrant is then stricken from the rolls, even if the
voter remains in all ways eligible to vote. 21
In prohibiting removal for non-voting, Congress rejected
arguments that such a procedure is necessary for fraud prevention
and list maintenance.

The Senate acknowledged that "most States

use the procedure of removal or non-voting merely as an
inexpensive method for eliminating persons believed to have moved
or died." Senate Report at 17.

However, Congress also recognized

that because of such procedures, "many persons may be removed
from the election rolls merely for exercising their right not to
vote, a practice which some believe tends to disproportionately
affect persons of low incomes, and black and other minorities. II
Id. at 18.

Indeeq, Pennsylvania's previous two year non-voting

purge was proven to have a.disparate impact on minorities.

ortiz

v. City of Philadelphia, 824 F. Supp. 514, 526-31, 539 (E.D. PaD
1993) .
Congress was well aware of the need for states to maintain
accurate voting rolls, but found that IIpurging for non-voting
tends to be highly inefficient and costly."

Senate Report at 18.

21 Although an element of Pennsylvania's non-voting purge
arguably is an individual's failure to respond to this notice (as
opposed to the notice being returned as undeliverable).
Congress
was very clear that an individual's registration should not be
cancelled solely for failure to respond to a mailing.
Senate
Report at 32. Moreover, it is the act of non-voting that causes
the voter to be purged.

16

The NVRA was designed to render superfluous the need for large
scale purges and list cleaning systems such as Pennsylvania's
purge for non-voting by providing an ongoing flow of address
corrections from the newly designated voter registration agencies
and through the u.s. Postal Service's National Change of Address
system.

Id.

While one court has found that non-voting could, consistent
with the NVRA, be used as a trigger for a voter removal program,
voting Rights Coalition v. Wilson, Case Nos. C-94-20860 JW and
95-20042 JW, unpublished order, at 4-5 (N.D. Cal. Nov. 2,
1995),22 that program is distinguishable from Pennsylvania's
new law in a critical way: it used failure to vote oniy as a'
trigger for a non-forwardable address confirmation card.

Only in

those instances where address confirmation cards were returned as
undeliverable that Section 8(d) (2) notices were sent to the
registrants.

Registrants were not purged for failure to vote.

Unlike the California program, it is the act of not voting -- not
voting in five years and then not voting in two general election
cycles after receipt of the notice --

that alone results in a

person being stricken from the rolls in Pennsylvania.
Accordingly, the pennsylvania law runs afoul of section 8(b) (2) 's
prohibition on purges for non-voting and is thus pre-empted.

22
A copy of this unpublished order is attached as Exhibit
13. Also attached in this exhibit, is a subsequent joint
stipulation as to language in the court's order, which was
drafted to clarify the specific parameters of California
cancellation procedures.

17

The Pennsylvania legislature also included an alternative
clause which converts the five-year non-voting trigger to a tenyear and then a twenty-year non-voting trigger.

This section,

entitled "Applicability", specifies that:
·In the event that the five-year period for notice to
electors provided for under section 1901(B) (3) has been
declared invalid or rejected by a court of competent
ju~isdiction or by the united states Department of
Justice, after all appeals have been exhausted and upon
certification to the Secretary of the Commonwealth and
pUblication in the Pennsylvania Bulletin, notice shall
be given in accordance with section 1901(B) (3) after a
period of ten years.
In the event that a ten-year
period has been certified to the Secretary of the
Commonwealth as invalid and upon publication in the
Pennsylvania Bulletin, notice shall be given in
accordance with section 1901(B) (3) after a period of 20
years.
section 5107(b) of the PVRA, 25 P.S. § 961.5107(b).

These non-

voting triggers violate the NVRA in the same manner as does the
five-year non-voting purge and are similarly pre-empted. 23
23 It may be, as an empirical matter, that after some period
of time, the failure to'vote is not an unreliable indicator of a
change in address or death (~lthough Pennsylvania has provided no
evidence to that effect). However, Congress prohibited any state
activity which "results" in the removal of registrants on account
of failure to vote, and expressly rejected attempts to place a
time limit on this prohibition. See H. Rep. at 36 (rejecting
amendment to permit removal after 100 years of non-voting). Thus
Congress determined that even when the relationship between nonvoting and ineligibility was a virtual certainty (i.e. every
registered person not voting for 100 years will be dead), nonvoting can not be used as a proxy for ineligibility.

Instead, Congress determined that the permitted list
maintenance devices authorized by the NVRA, such as the NCOA
procedures and the agency-based change of address information,
would be more than adequate to support the states' interest in
maintaining accurate rolls. Moreover, counties are free to
investigate whether persons remain eligible to vote and to
proceed on the basis of the information obtianed to remove
individuals who have died or moved, using the appropriate
(continued ... )

18

B.

Pennsylvania's Canvass Provision will purge voters in
Violation of the NVRA

On May 4, 1995, this Court declared that the state's thenexisting canvass laws were preempted
to the extent that they conflict with the provlslons of
the NVRA which require that any list maintenance
procedures be part of a uniform and nondiscriminatory
state program and which require that particular
procedures be followed prior to the removal of a
registrant on the ground that the registrant has
changed address, section 8(b) (1) and 8(d) of the NVRA,
42 U.S.C. 1973gg-6(b) (1) and 1973gg-6(d) , and to the
extent that they permit removal of names 15 days before
a primary or general election in contravention of
section 8(C)(2)(A), 42 U.S.C. 1973gg-6(C) (2)(A).
Order, May 4, 1995, at 4.
Yet at the end of June 1995, the Pennsylvania legislature
passed a new canvass law which is virtually identical to the
statute which this Court declared pre-empted on May 4, 1995, with
the exception that the earlier statute allowed a hearing to be
set within four days, instead of seven days, from the date of the
notice. 24

Cf. Exhibit 14 (containing text of former 25 P.S.

23( ••• continued)
mechanisms for such cancellation, including section 8(d) (2) of
the NVRA where there are indications that the individual may have
moved. Thus, Congress embodied in the statute its determination
that any marginal benefit which might result from permitting the
use of non-voting was outweighed by the burden on individuals'
rights not to vote and the disparate systemic impact such a rule
tends to have on minorities and the poor.

24
section 1901(B) (2) of the PVRA provides for a canvass
which leads to the cancellation of registration if an individual
does not respond in a certain time period:

(I) The registration commission may, by
commissioners or by inspectors of registration, verify
the registration in an election district by visiting
the building from which an elector is registered and
( continued ... )
19

623-33 and 951-31).

Thus, this new canvass provision is legally

indistinguishable from the provision which this Court declared to
be pre-empted and, if used by a county, could result in
cancellation of voter registration contrary to the NVRA.

A

canvass procedure could co-exist with the NVRA if it were
uniform and nondiscriminatory, it did not rely on lists created
in a discriminatory fashion 25 and if the cancellation
24( ••• continued)
other buildings as the commission deems necessary.

(II) The commission shall make a record of the
name and address of each registered elector who is
found not to reside at the registered address or who,
for any other reason, appears not to be qualified to
vote in the registered election district.
(III) The commission shall leave at the address of
each person referred to in subparagraph (II) a notice
requiring him to communicate with the commission on or
before a date which the commission shall designate, and
which shall not be less than seven days and not more
than 15 days from the date of the notice and in any
case not later than the 15th day preceding the election
next ensuing, and satisfy the commission of his
qualifications as an elector. .The commission shall
cause a confirmation of each such notice to be sent by
mail promptly to such person at the address from which
he is registered.
The envelope containing such
information is to be plainly marked that it is not to
be forwarded.
At the expiration of the time specified
in the notice, the commission shall cancel the
registration of such person who has not communicated
with the commission and proved his qualification as an
elector ....
25 P.S. § 961.1901(b) (2).
25

Congress foreclosed allowing a registrar to rely,
without evaluation, on lists compiled by non-neutral groups for
purging their registration rolls.
Both the House of
Representatives and the Senate noted in their reports that, "The
purpose of [the uniform and nondiscriminatory] requirement is to
prohibit selective or discriminatory purge programs. This
(continued ... )
20

procedures were completed ninety days before a federal election.
42 U.S.C. 1973gg-6(b) (1) and (d) and 1973gg-6(c) (2) (A).

However,

there are no assurances that the statute will be employed solely
in this manner.
The state has, as a stopgap measure, instructed counties not
to take action under the canvass until further order of this
Court.

Exhibit 15.

Accordingly, this Court should enter an

order declaring that these new canvass' provisions violate the
NVRA and declaring that section 1901(B) (2) of the PVRA is preempted to the same extent as set forth in its previous orders.
C.

.Pennsylvania's Procedures When a Voter Identification
Card is Undeliverable Violate the NVRA

The NVRA sets forth the conditions under which the
registration of an individual who submits a voter registration by
mail can be cancelled if the notice of disposition of their
application is returned as undeliverable.

section 6(d)

specifically provides that, "[i]f a notice of the disposition of
a mail voter registration application under section 8(a) (2) is
sent by nonforwardablemail and is returned undelivered, the
registrar may proceed in accordance with section 8(d)

.11

42

25( ••• continued)
requirement may not be avoided by a registrar conducting a purge
program or activity based on lists provided by other parties
where such lists were compiled as the result of a selective, nonuniform, or discriminatory program or activity." House and
Senate Reports at 15 and 31, respectively.
Accordingly, in order
for a registrar to use lists or election mailings compiled by
elected officials, candidates, political party committees, or
elected party representatives, the registrar would first have to
ascertain sufficient facts to establish that these lists were not
compiled as the result of a selective, non-uniform, or
discriminatory program or activity.

21

U.s.c. 1973gg-4(d).

The section 8(d) process referenced by this

section involves an address confirmation process, which requires
sending the voter a specific notice by forwardablemail and
waiting for two federal general elections to pass before purging
the voter if no response is received and the individual does not
appear to vote.

42 U.S.C. § 1973gg-6(d).

Pennsylvania law does not distinguish between mail-in
registration and other sources of voter registration; it allows
registrars to refuse to register all applicants whose voter
identification cards (i.e., disposition notices) are returned as
undeliverable.

sections 528(b) (2) and (d) (1) of the PVRA provide

that after an elector has completed a voter registration
application, the county election commission mails a voter
identification card to the applicant, by nonforwardable mail,
which serves as notice of disposition of his or her application.
25 P.S. §§ 961.528(b) (2),

(d) (1)

(1995).

section 528(d) (3) of

the PVRA further provides:
No registration application shall be deemed to be
accepted until ten days after the voter's
identification card has been mailed.
Upon return by
the post office of an identification card ... which the
post office is unable to deliver at the given address,
the commission shall investigate.
If the commission
finds that the applicant is not qualified to register
from such address, the commission shall reject the
application of the applicant and shall notify the
applicant by first class forwardablemail of this
action.
25 P.S. § 961.529.
This law clearly contravenes sections 6(d) of the NVRA
because it forecloses voter registration to mail-in voter
22

applicants solely due to a failure of the postal service to be
able to deliver an individual piece of mail.

Thus, persons

who registered by mail and did not receive the voter
identification card due to a postal or administrative error may
be deprived of their voter registration by operation of this
statute.
At present, Pennsylvania counties are following a crazy
quilt of varying approaches to registrants whose voter
identification cards are returned as undeliverable.

See,

~

Affidavits of county election officials from Berks, York,
Lancaster, Lehigh, Fayette, Clearfield and Allegheny Counties,
Exhibits 16-22.

As state officials appear to be unaware of the

counties actions in this regard, we spoke with the registrars of
these counties about the procedures they follow when voter
identification cards are returned to them by the Post Office as
undeliverable.

While all of the registrars are working hard to

comply with the law as they understand it, some counties have
rejected voter registration applicants in contravention of the
NVRA, and some appear to apply standards other than Pennsylvania
law.
Based on these interviews, as set out in Exhibits 16 through
22, it appears that most of the counties first investigate these
returned cards by a variety of means (i.e., making phone calls,
on-site investigations, contacting the post office, and/or
checking the original voter registration forms) and then either
correct the registration records, reject the applications, or put
23

the persons on an inactive list and allow them to vote by
affirmation at the polls.

still others are simply holding on to

all these returned cards and awaiting further instruction from
this court. 26
virtually none of the counties have separated the returned
voter identification cards which originated as mail-in voter
registrations from returned voter identification cards from other
sources, which in total number in the thousands.

All of the

counties, however, state that the voter identification cards
which have been returned to them
as mail-in applications.

inclu~e

cards which originated

Exhibits 16-22.

congress had a clear and convincing basis for-this NVRA
requirement.

The legislative history of the NVRA indicates a

skepticism about the use of the mail to detect fraud and a
concern that cancelling the registration of a person whose notice
of disposition was returned as undeliverable would unfairly
deprive some eligible individuals of their right to vote solely
to a problem in mail delivery.

Indeed, much of the testimony

before Congress indicated that a significant percentage of the
persons whose notifications were returned as undeliverable were,
in fact, in all ways eligible to vote. 27

Testimony further

26
Clearfield County has been able to determine the correct
addresses of the registrants for almost all the cards which are
returned, after their investigation.
Exhibit 22.
27
See Voter Registration: Hearing Before the Subcomm. on
Elections of the Comm. on House Administration, 101st Cong., 1st
Sess. 233-234 (Mar. 21, 1989) (Voter Registration) (affidavit of
Emmett Fremaux, Jr., Exec. Dir. of the District of Columbia Board
- (continued ... )

24

indicated that the root cause of undeliverable notifications was
error, on the part of the election officials, not fraud on the
part of the applicant. 28

,

In addition; Congress was warned that

postal service errors were responsible for some of the
undeliverable mail, especially in poorer neighborhoods. 29
27( ••• continued)
of Elections and Ethics) (20 percent of persons whose initial
notices were returned as undeliverable were reached by subsequent
mailings)'; Universal voter Registration Act of 1977: Hearings
Before the Comma on House Administration, 95th Cong., 1st Sessa
203 (39 out of 40 persons whose notices returned as undeliverable
were reached by subsequent mailings); see also Legislation to
Facilitate Exercising the Right to vote: Hearings Before the
Subcomm. on Postal operations and Services of the House Comma on
Post Office and civil Service, 99th Cong., 1st Sessa 33 (July 30,
1985) (testimony of Susan Farmer, Secretary of State of Rhode
Island) (2 percent of registrants purged because of undeliverable
mail appeared at polls and were determined to be eligible to
vote) .
28
See,~, Universal Voter Registration Act of 1977,
supra, at 203 (testimony of Hon. William Bablitch, Senate
Majority Leader of Wisconsin) (lithe District Attorney of one of
our largest counties found that * * * he got about a hundred
[postcards] back out of ten thousand sent out or something,
almost all of them were due to clerical errors. Instead of 543
Johnson street, it was 534 Johnson Street or something like
that."); ida ,at 393 (testimony of Ruth Clusen, President, League
of Women voters) (llin most cases where the card was returned [to
the registrar as undeliverable], it was mistakes on the part of
election officials, not those who tried to vote").

29
See,~, Voter Registration, supra, at 311 (testimony
of Frank Parker) ("I have seen figures of as high as 5 percent of
misdelivered mail.
I live here in the District, and just about
every day I get a letter that doesn't belong to me, including
letters that have somebody else's addiess on them.
So I think if
that is true then, you run the risk of purging 5 percent of the
electorate erroneously. ") ; Voting Rights Act: Runoff Primaries
and Registration Barriers: oversight Hearings Before the
Subcomm. on civil and constitutional Rights of the House Corom. on
the Judiciary, 98th Cong., 2d Sess 258 (June 28, 1984) (~estimony
of Sanford Newman, Exec. Dir. of Project VOTE!) ("Indeed, the
principal concern about mail verification should be that problems
with mail delivery, especially in many low-income neighborhoods
(continued ... )

25

Thus, . the Senate Report indicates Congress' intent to protect
those individuals who registered by mail and whose notices of
disposition were returned

~s

undeliverable from being purged from

the voter registration rolls without the purge protections of the
Act. 30

Senate Report at ·30-32.

Instead of permitting states to use an undeliverable notice
of disposition as grounds for the summary denial of a mail
registration application, the failure of the notice of
disposition to be delivered permits the registrar to initiate
section 8(d} procedures.

The Act thus permits states to use this

unsuccessful mailing as a trigger to the section 8(d} removal
procedures, but makes the state wait and see if the person
appears to vote, at which point error can be corrected, before
29( ••• continued}
and housing projects, result in the rejection of applications
from people who really do live at the address shown on the
application."). See also Arthur F. Greenbaum, The Postman Never
Rings Twice, 33 Am. Univ. L. Rev. 601, 625 (1984) ("[J)ust as
service by posting is subject to more interference in public
housing projects than in other locations, so too is mail service.
This led one prominent commentator to describe mail service in
ghetto areas as 'singularly unreliable. '" (footnotes omitted».

30

Moreover, Congress specifically rejected an earlier
version of section 6(d} that would have provided that "if a
notice of acceptance of an application is returned undelivered,
the State election official shall reject the application." 138
Congo Rec. S6874, S6878 (May' 19, 1992) (emphasis added).
Senator
Ford, the floor manager for the NVRA, opposed the amendment,
arguing that it "conditions acceptance of a registration
application on the Postal Service rather than the applicant
meeting the state requirements" and that although he did "not
have anything against the u.S. Postal Service or those employees
who work so hard to see that our mail gets through, * * * none of
us are perfect." Id. at S6875. The rejection of this amendment
indicates that Congress was skeptical of using mail delivery as a
condition of registration.
26

they are taken off the list.

Moreover, the mailing of the

section 8(d) (2) notice after the first notice is returned
provides a second opportunity for the mail to be properly
delivered.
As section 528(b) (2) of the PVRA directly conflicts with
section 6(b) of the NVRA, this Court should declare section
528(b) (2) of the PVRA to be pre-empted with respect to mail-in
applications for registration in federal' elections. 31
V.

PENNSYLVANIA HAS FAILED TO REMEDY ITS FAILURE TO PROVIDE
VOTER REGISTRATION AT NVRA-MANDATED PROGRAMS BETWEEN
JANUARY 1 AND JUNE 1, 1995
There have been 925,408 people who received their. driver's

licenses or identity cards, renewed such documents or changed
their address for them between January 1 and June 1, 1995, and
who have not returned to the Pennsylvania Department of
Transportation offices for services after June 1, 1995.

See

Defendant's Answers to united States First Set of
Interrogatories,.Nos. 4, 5 and 6.

Exhibit 23.

ThUS, these

individuals have all been denied the voter registration
opportunities mandated by Congress.

Moreover, it is probable

that a sUbstantial portion of these individuals would have
registered at the Pennsylvania Department of Transportation had
31
In ACORN v. Miller, 912 F.Supp. 976, 986 (W.D. Mich.
1995), the district court held that a Michigan statute which
rejects, without further action, a voter registration application
for which the voter identification card was returned by the Post
Office, was not inconsistent with the NVRA. The legislative
history of the NVRA does not support and is contrary to the
interpretation given to this statute by the Michigan court.
8ee,
~, H. Conf. Rep. 66, 103d Congo 18 (1993); 139 Congo Rec.
85643, 85672, 85740 (May 6, 1993).

27

such opportunities been offered because 238,561 people registered
at these sites between June 30 and December 31, 1995.

Exhibit

24.
Similarly, there have been hundreds of thousands of people
who filed applications, recertifications or changes of address at
public assistance and WIC offices between January 1 and June 1,
1995. 32

Additionally, there are 9,054 individuals who applied

for vocational rehabilitation services in Pennsylvania during
this period.

Exhibit 28.

These individuals have also been

denied the voter registration opportunities mandated by Congress.
Moreover, given that the Orphan's Court was not even named
as a discretionary agency for voter registration until the end of
June 1995, it appears that over 38,000 couples were not provided
the requisite NVRA opportunity for voter registration in
1995. 33

Finally, there are large numbers of people served by

32

We know, from the May 1996 Office of Income Maintenance
Report, more than 124,000 people applied for benefits, sought
recertification or filed changes of address at its offices in
that month alone. Exhibit 44.
In response to our interrogatories
seeking the number of people who applied for or sought to
recertify for public benefits (WIC, AFDC, medicaid an foodstamps)
between January 1 and June 1, 1995, and seeking information as to
how many of these individuals returned to the agency after June
1, 1995, the state represented that it had created a software
program to retrieve the information.
Defendants' Answers to
United states First Set of Interrogatories, No. 14. Exhibit 23.
We have not yet received this information.
33

According to the Pennsylvania Department of Health,
Division of Health Statistics, there were 75,703 marriage
licenses provided by Orphan's Courts in 1994.
(Exhibit 29).
Assuming that roughly the same number of marriage licenses were
provided in Pennsylvania in 1995, it would appear that at least
38,000 couples were not provided NVRA voter registration
opportunities during 1995. This would be in addition to those
(continued ... )
28

the still undesignated programs serving persons with disabilities
in Pennsylvania who have not been reached by the NVRA-mandated
opportunities.
In short, Pennsylvania's delay in implementing the NVRA has
deprived hundreds of thousands of Pennsylvanians of the easy
opportunities for voter registration mandated by the NVRA. The
state has an obligation to recapture these lost opportunities.
Illinois, like Pennsylvania, did not provide for NVRA
mandated voter registration opportunities as of the January 1,
1995, effective date of the Act.

And Illinois, like

Pennsylvania, was compelled into compliance through
federally initiated lawsuits.

p~ivate

and

On May 24, 1996, the district

court in Illinois identified the need for the state to recapture
the voter registration opportunities lost to its citizens,
stating:
Because Illinois voluntarily selected a route [to
challenge the Act's constitutionality] that necessarily
created. delays in compliance, very large numbers of
prospective registrants (those who would have been
afforded the opportunity to register at various
enumerated Illinois offices between January 1, 1995 and
the considerably later dates when such opportunities
were first made available) have been deprived of their
right to register expressly conferred by the Act.
ACORN v. Edgar, No. 95 C174, unpub. ord. at 2 (N.D. Ill. May 24,
1996)

(emphasis in original) .34

See Exhibit 30.

Hence, on

33( ••• continued)
offices which started somewhat later in providing these
opportunities.
34

Cases brought under other remedial and civil rights
statutes support the proposition that the intended beneficiaries
(continued ... )
29

July 16, 1996, the court ordered Illinois to offer mail-in voter
registration forms until the cutoff date for the November 1996
general election to each individual who enters an Act-mandated
facility for any reason, and to all individuals who apply for or
renew motor vehicles license plates or motor vehicle registration
stickers.

ACORN v. Edgar, No. 95 C174, unpub. ord. at 4-5 (N.D.

Ill. July 16, 1996); See Exhibit 31.

Additionally, the court

ordered Illinois to provide a TTY/TOO toll-free number through
which English-speaking or Spanish-speaking persons could register
to vote under the Act, by obtaining a postage pre-paid mail-in
registration form, and further ordered three weeks of media spots
and newspaper advertisement regarding the toll-free number and
34( ••• continued)
of a constitutional federal statute must have their benefits
retroactively restored to the effective date of the statute.
One
example comes from section 5 of the voting Rights Act, wherein
certain jurisdictions must receive federal preclearance of voting
changes prior to their implementation. Various lawsuits were
brought in the 1980's against states which had completely failed
to preclear changes in their judicial election systems since the
November 1, 1964, effective date of section 5. These states
.
contended that such changes were not covered by the Act.
Nonetheless, when they lost such contentions, courts required
these states to seek preclearance for these changes all the way
back to the 1964 effective date of the Act.
See,~, Brooks v.
Board of Elections, 775 F.Supp. 1470 (S.D. Ga. 1989) (three-judge
court), aff'd, 498 U.S. 916 (1990); Haith v. Martin, 618 F.Supp.
410 (E.D.N.C. 1985) (three-judge court), aff'd, 477 U.S. 901
(1986) .

Similarly, when defendants are sued for employment
discrimination under Title VII of the Civil Rights Act and a
violation is proven, courts often award back-pay and other
benefits originating from the date on which the violation began
in order to place the plaintiff in as near as practicable in the
position he or she would have in but for the violation. See,
~, Williams v. city of Montgomery, 550 F.Supp. 662 (M.D. Ala.
1982), aff'd, 742 F.2d 586 (11th Cir. 1984), cert. denied, 470
U.S. 1053 (1985).
.
30

the deadlines for voter registration, and the distribution of
public service announcements publicizing this information.
at 4-5.

Id.

Informational inserts regarding these voter registration

opportunities were also directed to be placed in license tag
renewal notices and public assistance check envelopes through
September 30, 1996.

The court also ordered that such

advertisements be placed on approximately 3,500 Chicago Transit
Authority buses, trains and PACE buses.

Id. at 6-7. 35

other examples of such relief that courts have endorsed in
settlement of NVRA cases include:
• Mailings of voter registration forms to public
a.ssistance clients who were not provided NVRA voter
registration opportunities and are not currently
.
receiving public assistance benefits and are not
registered to vote, Condon v. Reno, No. ~J95-192-0/54,
unpub. ord. at 1-2 (D. S.C. Apr. 2 1996);
ACORN v.
Miller, No. 4:95-CV-45, unpub. ord. at 2-3 (W.O. Mich.
March 5, 1996).
• Messages with all unemployment checks issued during
a particular week, indicating that any individual who
wishes to receive a voter registration form may call
and request one from the unemployment or job service
35

Subsequently, the parties in Illinois agreed to an
amended order which, inter alia, kept the aforementioned
provisions but only required the toll~free number to be provided
until September 30, 1996. ACORN v. Edgar, No. 95 C174, unpub.
ord. at 2-3 (N.D. Ill. Aug. 1, 1996). Exhibit 32.
Another aspect of these'orders was to include a savings
provision which allows election authorities to correct erroneous
mail-in registration that are timely filed, even though such
corrections are made within thirty days of the election.
July
16, 1996 Ord. at 7; Aug. 1, 1996 Ord. at 5.
36
The decisions referenced here were attached to the
united States' Response to the Court's order to show cause, with
the exception of the National Congress of Puerto Rican Rights, et
al. v. Sweeney, et al., No. 95 civ. 8642, consent order (S.D.N. Y
Jan. 24, 1996) decision, which is attached as Exhibit 33.

31

office (which were designated by New York as
discretionary voter registration agencies) and that
assistance in completing the form will be provided at
their offices.
National Congress of Puerto Rican
Rights v. Sweeney, No. 95 civ. 8642, consent order at 5
(S.D.N.Y. Jan. 24, 1996).
• Provision of voter registration opportunities to all
persons who visit welfare offices for any purpose for a
six month period of time and mailing to every persc~ on
the state central welfare database a notice advising
them of a toll-free number by which they may reques~
voter registration forms or pick up such forms in
person, and likewise sending such notices to all
persons who were denied medicaid, AFDC or foodstamp
benefits during the state's five and a half months of
noncompliance. Voting Rights Coalition v. Wilson, No.
C-94-20860 JW, No. C-95-20042 JW at 1-2, unpub. ore. at
2 (N.D.Cal. Feb. 12, 1996); see also ACORN v. Miller,
No. 4:95-CV-45, unpub. ord. at 2-3 (W.D. Mich. March 5,
1996) (requiring oral offer of voter registration to
each person visiting Department of Social Services for
seven months) • 37
• Provision of voter registration opportunities to all
persons who visit Department of Motor Vehicle cffices
for purposes of renewing a motor vehicle regist~at:~~
for a nine month period and inclusion of a not:ce :~
every motor vehicle renewal registration billing
apprising vehicle owners that they may phone a tollfree number to obtain a voter registration form and
identifying sites where such forms may be obtained in
person. voting Rights Coalition v. Wilson, No. C-9420860 JW, No. C-95-20042 JW, unpub.ord. at 1-2 (Feb.
12, 1996 N.D. CaL).
In the instant matter, the state has been unwilling to
outline procedures which it believes will achieve such a remedy
in a manner most sui ted to its operations. 38

As other t"M

37
Additionally, the Department of state
producing radio public service announcements in
Spanish concerning where and how to register to
assistance and disability offices in Michigan.

con=it.tei to
English and
vote a t. ;~DL:::
Id. at. ":'.

38 We note, however, that Robert DeSousa, Chief Co~sel for
the Secretary of the Commonwealth, stated during an in-cjanbers
discussion in April 1995, that the state. was considering
(con~:':Jue:: ... )

32

cases have shown, relief would be effective if the state were to
send voter registration mail applications to all of those
individuals who filed applications, reapplications and changes of
address at section 7 agencies

and.Pennsyl~ania

Department of

Motor Vehicles, who did not return since June 1995 and who are
not registered to vote. 39
As an alternative to specific mailings of voter registration
forms, remediation may also be achieved through a uniform offer
of voter registration to all persons who visit any section 7 and
driver's licensing and motor vehicle licensing site for a six
month period beginning immediately, and through a state-wide
public information campaign apprising the public of these new
voter registration possibilities and of the cutoff dates for
voter registration in the upcoming elections through the media
and through notices with public assistance checks and motor
vehicle registration renewals.
Indeed, the idea of offering voter registration to·all
individuals approaching the receptionist desk at public

38( ••• continued)
producing public service advisories and adding mailers about
voter registration opportunities to tax notices or other mailings
from the state.

39
In Michigan, of the 1,009,438 applications mailed to
applicants at Section 7 agencies as part of the state's remedial
program on May 20-28, 1996, 83,875 resulted in completed
applications as of June 30, 1996. Michigan NVRA Compliance
Report, July 31, 1996, at 1; Michigan NVRA Compliance Report, May
31, 1996 at 1, in Exhibit 34. As Michigan had been providing
driver's license-based voter registration since 1975, there were
no remedial issues with regard to the state's driver's license
applicants.

33

assistance offices does not appear new to Pennsylvania.

We note

that in Philadelphia, as of May 16, 1996, Deputy Executive
Director William stroup mandated a "voter Registration
Receptionist Initiative" at Philadelphia Offices of Income
Maintenance.

Under this initiative, the receptionist-offers

voter registration to all clients who visit the office; this is
in addition to the offer of voter registration offered during the
intake interview.

See Exhibit 35.

Congress contemplated that there would be 20 months of voter
registration under the NVRA from January 1, 1995 until the close
of registration for next federal general election in November
1996. - Pennsylvania, by its total noncompliance with the Act for

at least 5 months, reduced this registration period by 25%.

That

the state took steps toward compliance with the Act in June 1995,
does not make up for the fact that it completely failed for at
least 5 months to affirmatively offer voter registration
opportunities to over one million persons who may well not visit
a government agency designated under the NVRA before the close of
registration for the federal election in November 1996.

These

persons must be made whole by being offered the opportunity to
register under the NVRA.

The state should not be able to rely

now on its deliberate delay to argue against placing its citizens
in the position that they would have been in absent its
violation.
Congress enacted section 11 of the Act, which authorizes
suits _such as the instant action, with the intent that injunctive
34

relief would serve "as corrective actions in order to carry out
the enforcement of the NVRA."

Senate Report at 2.

The relief we

have requested--to direct the state to provide easy voter
registration procedures to those to whom it denied such
procedures for most of 1995--falls precisely within the ambit of
Congress' intent.

Moreover, such relief is well within the

authority of this Court to grant, for as the Supreme Court has
noted, "the essence of equity jurisdiction has been the power [of
the court] to do equity and to mold each decree to the
necessities of a particular case."

Weinberger v. Romero-Barcelo,

456 U.S. 305, 312 (1982), guoting, Hecht Co. v. Bowles, 321 U.S.
321, 329 (1944).

Thus, Pennsylvania should attempt to reach

those persons who were denied the easy opportunity to register to
vote at NVRA mandated agencies since January 1,1995, and to offer
them that opportunity prior to this year's federal general
election.
VI.

PENNSYLVANIA HAS NOT TAKEN THE. ACTION NECESSARY TO ENSURE
COMPLIANCE AT THE AGENCIES IT HAS DESIGNATED FOR VOTER
REGISTRATION
The Pennsylvania Department of Transportation (IIPennDOTII)

has proven to be quite effective in expanding voter registration
opportunities for Pennsylvania's citizens and adding people to
the voter registration rolls.

Yet Pennsylvania's agency-based

voter registration programs have shown dismal results.
On average, 80% to 90% of all WIC applicants in Pennsylvania
who indicated an interest in applying to register to vote between
February and May 1996 took the forms home; as a result although
35

6% to 7% indicated an interest in registering to vote, less than
1% (0.6% to 0.8%) of the individuals filing applications,
recertifications or changes of address at WIC offices registered
to vote. 40

Similar rates were reported at the Department of

Public Welfare's Office of Income Maintenance.

For example, in

the month of May, only 4,074 out of 124,226 (3.3%) of the
individuals filing applications or recertification for public
assistance or changing their address, completed voter
registration forms for transmittal at the public assistance
office.

An additional 17,037 people (80% of those indicating an

interest in registering to vote) took the forms home.

Exhibit

44.
By way of contrast, in Michigan, a state which began agencybased registration only as a result of a court order, 17% to 24%
of those individuals filing applications, recertifications or
changes of address related to benefits at public assistance
agencies filled out voter registration forms at these sites
between February and June 1996.

An additional 3.7% to 6.2% of

40

The above figures are based on raw data from the
Pennsylvania Department of Health.
See Exhibit 27.
Figures
contained in a cumulative report from the Department of Health
regarding the WIC program dated May 31, 1996, indicate that only
3,700 of 310,648 (1.2%) completed applications at WIC offices for
transmittal to county election officials.
Exhibit 46. Another
22,827 (or 86% of those indicating a desire to register to vote)
took the forms home.
Id.
36

the individuals visiting these offices took home voter
registration forms. 41
The depositions of agency personnel paint a picture of
agency components told to conduct voter registration, with no one
responsible for monitoring the results.

According the William

Boehm, Pennsylvania's Director of Voter Registration, neither he
nor anyone else in the Secretary of State's office monitors the
voter registration activities of the state agencies.

Deposition

of William Boehm, Director of Voter Registration, Bureau of
Commissions, Elections and Legislation, Pennsylvania Department
of State ("Boehm Depo.")

(Exhibit 36) at 55-56.

While he

explains that responsibility lies with the agencies, neither he
nor anyone else in the Secretary of state's office has directed
the agencies to conduct any analysis of their voter registration
activities.

Boehm Depo. at 23-25, 33, 70, 88.

He asserts that

the Secretary of State's office is merely obligated to collect
data to supply. to the Federal Election Commission in 1997
pursuant to section 9 of the NVRA 42 U.S.C. 1973gg-7(a).

Boehm

Depo. at 16.
Yet the agencies, with one exception, do not perform this
monitoring function.

42

Representatives from the Offices of

41

These figures are based on the raw data in the Monthly
NVRA Compliance Reports submitted to us by the state of Michigan.
Exhibit 34.
Christine Bowser from the Office of Income Maintenance
("aIM"), testified during her deposition that since information
regarding voter registrati6n activitie~ had become available on a
county by county level at aIM offices, she has been reviewing the
(continued ... )
42

37

Mental Health, Mental Retardation, and Vocational Rehabilitation
report that they do no monitoring of their voter registration
activities.

Wild Depo. at 32-39; Bruaw Depo at 14-16; R. Barton

Depo at 33-34.

The NVRA coordinator for the Department of

Health's WIC program stated that she reviews reports showing the
number of declinations, as well as the number of voter
registration forms taken home and the number of voter
registration forms transmitted by each local agency each month.
Deposition of Jeannette Fossi, Supervisor, Program Planning and
Monitoring Unit, Women, Infants and Children Program, Department
of Health ("Fossi Depo.")

(Exhibit 39) at 19.

But she has taken

no action on the rather alarming data, and she testified that
registration rates of 0.01% or 9 out of 9,323, do not raise any
particular concerns for her, nor does the fact that over 90% of
those indicating an interest in voter registration take the forms

42( ••• continued)
data.
Bowser stated that the high number of people taking home
the voter registration forms (80-90%), concerned her and led to
her June 17, 1996, directive directing aIM caseworkers to
encourage people to fill out their forms in the office.
Deposition of Christine Bowser, operations Director, Office of
Income Maintenance, Pennsylvania Department of Public Works
("Bowser Depo.") (Exhibit 37~ at 161-164, 171; Exhibit 42. Again
this is quite a recent development. Moreover, it does not ensure
that people are actually being asked about voter registration
during their interview. The data base is created by the intake
worker who must fill in an element on the computer screen at each
intake interview. That input choices for that screen consist
only of statements that essentially mean "Yes, I offered the
client voter registration ... " There is no input choice for "No,
I did not offer voter registration." See Exhibit 38, which
details the available responses to computer prompt.
38

home rather than taking the easier course of completing the forms
then and there.

Fossi Depo. at 20, 57.

With respect to the Orphan's Court, it is clear from the
testimony of William Boehm, Boehm Depo. at 38, and the Affidavit
of Martin Madigan, Acting .Registrar of Wills for Allegheny
county, Exhibit 40, that there is no central person coordinating
or monitoring compliance at the Orphan's Courts.

The Secretary

of State's records, for example reflect that only one person out
of s'everal thousand marriage license applicants registered to
vote through the Orphan's Court in Philadelphia in 1995, and two
people applied to register to vote through this site between
January and April, 1996.

Boehm Depo. at 36-38.

However, after

we called the Philadelphia Orphan's Court office to determine the
reason for the low number of registration applications, the
number of reported applications rose to 27 in two months.
Exhibit 47.
In sum, Pennsylvania has not assumed its responsibility "to
implement [the NVRA) in a manner that enhances the participation
of eligible citizens as voters in elections for federal office."
42 U.S.C. 1973gg(b) (2).

Given the state's continued resistance

to using readily available data, data which in may cases is in
the possession of state officials, the NVRA's procedures will not
by applied at designated Section 7 agencies unless the Court
requires the state to assume its responsibilities.

As the

details of the administration of this program should be left to
the state an order should be entered requiring that the state
39

shoulder reporting and monitoring responsibilities to ensure that
the state is in a position to run its own program and to certify
its compliance, rather than rely on the federal government and
private plaintiffs to do so.
Accordingly, we urge the Court to order defendants to
provide monthly reports to plaintiffs stating the NVRA activity
at each site at each agency until March 1997, with this
information broken down by number of people filing applications,
recertifications and changes of address as well as the number of
people specifically declining to register, the number of blank
declination forms, the number of people taking registration forms
home and the number of people filling out voter registration
forms which were transmitted by each office to the appropriate
election officials.

In addition, the Court should direct the

coordinator designated by each agency to investigate each site
where the take-home rate is 85% or above to determine whether
that result is the true choice of the applicant or whether the
intake staff is encouraging the applicant to take the form home
rather than filling it out then and there.

If this investigation

shows that it is the latter case, the coordinator should take
corrective steps.
VII. CONCLUSION
As set forth in detail above, the statutory conflicts
between the NVRA and PVRA are clear and ripe for decision by way
of summary judgment.

Similarly, there are no genuine issues of

material fact as to the other issues raised by this motion.
Accordingly, we urge that the Court grant this motion for summary
judgment.
40

'.~.~'

MICHAEL R. STILES
United States Attorney

ELIZ@EfH
BARRY~-.

EINBERG
:JUDYBETH GREENE
Attorneys, Voting Section
tivil Rights Division
JDepartment of Justice
P.O. Box 66128
Washington, D.C. 20035-6128
(202) 616 -2350

CERTIFICATE OF SERVICE
I hereby certify that on this 7th day of August 1996, I
caused a copy of the foregoing Motion for Summary Judgment to be
served upon the defendants, amicus participants, and ACORN
plaintiffs by first class mail and. telefacsimile addressed as
follows:
Calvin Koons, Esq.
Senior Deputy Attorney General
Office of Attorney General of the
Commonwealth of Pennsylvania
15th Floor, Strawberry Square
Litigation Section
Harrisburg, PA 17120
Thomas A. Allen, Esq.
One Liberty Place, Suite 1800
1650 Market Street
Philadelphia, PA 19103
David Rudovsky
Kairys, Rudovsky, Kalman & Epstein
924 Cherry Street, Suite 500
Philadelphia, PA 19107
Elliot Mincberg
Lawrence Ottinger
People for the American Way
2000 M Street, N.W., Suite 400
Washington, D.C.
20036
Steve Bachmann
ACORN
P.O. Drawer 310
2657 Lakeshore
Edwardsburg, MI

J;lDYBETH GREENE
Trial Attorney

EXHIBIT LIST ACORN v. ·RIDGE

1.
January - June 1995 Admissions, and Total Population Served
in FY 94/95 at Pennsylvania-operated in-patient psychiatric
facilities, as provided by the Pennsylvania Office of Mental
Health, Department of public Welfare.
2.
Deposition of Robert Wild, Director of the Bureau of
Management, of the Office of Mental Health in the Department of
Public Welfare.
3.
Charts Reflecting unduplicated Client Count of Patients
Served by Various Types of Mental Health Programs Funded by
Pennsylvania.
4.
Chart Reflecting Number of Persons Served in Various stateFunded Programs Serving Individuals with Mental Retardation in
Pennsylvania in FY 1994/95.
5.
Deposition of John J. Detman, Division Chief, Division of
community Services, Department of Aging.
6.
Letter of July 15, 1996 from Calvin Koons, Esq. to Judybeth
Greene, Esq.
7.
Deposition of Donald E. Lunday, Chief of the Regional
Programs Division Bureau of Adult Basic and Literacy Education,
Pennsylvania Department of Education.

8.
Deposition of Samuel Bashore, Special Education Advisor,
Bureau of Special Education, Pennsylvania Department of
Education.
9.
Deposition of Raymond Walker, Supervisor, Facilities and
Grants Management Section, Pennsylvania Office of Vocational
Rehabilitation.
10. Deposition of Eugene Barton, Director of Field Operations,
Bureau of Blindness and Visual Services, Office of Social
Programs, Department of Public Welfare.
11.

united States' Notice of Deposition, dated June 27, 1996.

12. Deposition of Roger Barton, Assistant Director, Bureau of
Program operations, Office of Vocational Rehabilitation,
Pennsylvania Department of Labor.
13. Voting Rights Coalition v. Wilson, Case Nos. C-94-20860 JW
and 95-20042 JW, unpublished order (N.D. Cal. Nov. 2, 1995) and
Voting Rights Coalition v. Wilson, Jt. Stipulation to Substi~ute
Language (N.D. Cal., filed Nov. 9, 1995).
14. Text of 25 P.S. § 625-33 and 951-31 (repealed June 30,
1995) .

15.
Advisory dated August 31, 1994, from William Boehm,
commissioner, Bureau of Commissions, Elections and Legislation to
County Registration Commissions recommending that they do not
take action pursuant to purge and canvass provisions of
Pennsylvania Voter Registration Act until a conclusion is ~eachec
on the Department of Justice's challenge to those provisions.
16.
Affidavit of Sandra Ruppert, Chief Registrar, Berks County,
Pennsylvania.

17. Affidavit of Karen Hoyt-Stewart, Director of
Voter Registration, York County, Pennsylvania.
18. Affidavit of Karen Axe, Chief Clerk of the
Lancaster County, pennsylvania.

Elec~:c~s

Elec~icn

c~~

3card,

19.
Affidavit of Fay Ginther, Chief Clerk to the Electio;. Board
and Registration commission, Lehigh County, Pennsyl var,ia.

20. Affidavit of Barbara A. DeCarlo, Director, Bureau of
Elections, Fayette County, Pennsylvania.
21. Affidavit of Mark Wolosik, Director Election Bureau,
Allegheny County, pennsylvania.
22. Affidavit of Donna Brumbarger, Office Manager c: :~e
Election/Voter Registration Office for Clearfield CC~~:;,
Pennsylvania.
23. Defendant's Answers to United States'
Interrogatories.

First Set of

24.
Chart Containing Number of Persons Registering to Vo~e in
Pennsylvania between June 30 and December 31, 1995 through P\RA
and Other Sources; Chart Provided by Pennsylvania Departne;.t c:
State, Bureau of commissions, Elections and Legislatic;..
25.

No Document.

26.
Deposition of William Bruaw, Mental Retardation ?r~gr~~
Specialist, Bureau of Direct Program operations, Office c: ~e~:~~
Retardation, Pennsylvania Department of Public Welfare.
27. Voter Registration Reports, February - May, 1996,
Pennsylvania Department of Health Division of Specia~ ::::3
Programs - WIC.
- .. :
........
Letter of July 16, 1996 from Calvin Koons, Esq. :c __ .....; .. j....,---....
Greene, Esq.

28.

:~"C

29.
Chart Showing the Number of Marriages in Each COl,:.;-;::" :.;.
Pennsylvania in 1994 and Cumulative Total.
Pennsylvan:a
Department of Health.
(Note: counties are designated ~. :-_'.:.=-.::-sr

-'

'

codes; a chart correlating the number codes to counties is also
attached. )
30. ACORN v. Edgar, No. 95 C174, Unpub. Ord.
1996).

(N.D. Ill. May 24,

31. ACORN v. Edgar, No. 95 C174, Unpub. Ord.
1996) •

(N.D. Ill. July 16,

32. ACORN v. Edgar, No. 95 C174, Unpub. Ord.
1996) .

(N.D. Ill. Aug. 1,

33. National Congress of Puerto Rican Rights, et ale v. Sweeney,
et al., No. 95 civ. 8642, consent order (S.D.N.Y Jan. 24, 1996).
34. NVRA Status Reports, state of Michigan (March-July 1996);
ACORN v. Miller, 912 F.Supp. 976 (W.D. Mich. 1995).
35. Memorandum of William Stroup, Deputy Executive Director,
Office of Income Maintenance, to Philadelphia Office of Income
Maintenance,centers, July,16, 1996.
36. Deposition of William Boehm, Director of Voter Registration,
Bureau of Commissions, Elections and Legislation, Pennsylvania
Department of State.
37. Deposition of Christine Bowser, Operations Director, Office
of Income Maintenance, Pennsylvania Department of Public Works.
38. Department of Public Welfare Computer Prompt Information re:
Voter Registration Codes, February 12, 1996.
39. Deposition of Jeannette J. Fossi, Supervisor, Program
Planning and Monitoring unit, Women, Infants and Children
Program, Pennsylvania Department of Health.
40. Affidavit of Martin Madigan, Acting Registrar of Wills,
Allegheny County, Pennsylvania.
41.

No Document.

42. operations Memorandum #96-6-4, From Christine Bowser,
Director Bureau of operations to Executive Directors in the
Office of Income Maintenance, Pennsylvania Department of Public
Works, June 17, 1996.
43. Deposition of Edward Manning, Regional Program Manager for
the Central Region Office of Mental Retardation, Department of
Public Welfare.
44. Computer Summary of Voter Registration Activity at
Pennsylvania Offices of Income Maintenanc~ April 23 - May 23,
1996.

45. Voter Registration Report reflecting cumulative state
information as of May 31, 1996 regarding voter registration
activities at Pennsylvania Department of Health WIC offices.
46. Cumulative state Totals for Voter Registration Activities by
Local Office by Month at WIC offices, produced by Department of
Health.
47. Voter Registration statistics for May 1, 1996 through June
30, 1996, County of Philadelphia, PA.

Attachment 4

1
2
3
4
5

6
7

JANET RENO, Attorney General
for the United States
ISABELLE KATZ PINZLER
Asst. Atty General
ELIZABETH JOHNSON
BARRY H. WEINBERG
MICHELE E. GILMAN
Attorneys, Voting Section
Civil Rights Division
United States Department of Justice
P.O. Box 66128
Washington, DC 20035-6128
Telephone: [phone]

Local counsel:
MICHAEL J. YAMAGUCHI
United States Attorney
No. Dist. of California
MARY BETH UITTI
Chief of Civil Division
YONKEL GOLDSTEIN
Bar No. 136169
280 South First Street
Suite 371
San Jose, CA 95113
[phone]

8
9
10
11

Attorneys for Defendants,
Counter-claimants and
Third-party Plaintiffs
UNITED STATES OF AMERICA
and JANET RENO,
The Attorney General

""',,

~;.,~ ~"""l'

12

/~~ ~~?

15

PETE WILSON, et al. ,

16

, Plaintiffs,

17
v.
UNITED STATES OF AMERICA,
et aI. ,

20
21

i~-:;

~

t!;j ,';

14

19

""""

UNITED STATES DISTRICT COURT
FOR ';l'HE NORTHERN DISTRICT OF CALI FORNIA t :;;,
SAN JOSE DIVISION

13

18

,~"

Defendants,

)
)
)
)
)
)
)

)
)
)
)
)

Case No. C 95-20042-JW
Case No. C 94-20860-JW
( Consolidated)
UNITED STATES' NOTICE OF
MOTION AND MOTION
FOR FURTHER RELIEF
DATE: December 8, 1997
TIME: 9:00 a.m.

___________________________ 1

22
23

UNITED STATES' MOTION FOR FURTHER RELIEF

24

TO DEFENDANTS AND THEIR ATTORNEYS:

25

PLEASE TAKE NOTICE THAT plaintiff United States hereby

26

moves for further relief against defendants, their agents,

27

.S. Motion for Further Relief

,t(I!,,;,o;,..

;'.""",
\"1;/'01'

"'''-'!;;iv
1!'"",>",,;

1

servants, employees, and representatives.

2

respectfully requests that this Court grant the following

3

relief with regard to California's purge and fail-safe voting

4

procedures for elections of federal officials:

5
6

The United States

1.

Declare that California's Alternative Residency

Confirmation Procedure (ARCP) , Cal. Elec. Code

§

2444,

7
violates the National Voter Registration Act

(NVRA) , 42 U.S.C.

8
§

1973gg-6 (b) (2), because it constitutes a purge for

9

10
11

12
13

nonvoting, and order the defendants not to employ ARCP as a
direct or

indirec~

means for removing a voter from the list of

eligible voters;
2.

Declare that California's fail-safe voting'procedures

14

for registrants who have moved within the same registrar's

15

jurisdiction and the same congressional district without re-

16

registering to vote violates the NVRA, 42 U.S.C.

17

6 (e) (2), insofar as the state does not permit fail-safe voters

18

who move prior to twenty-eight days before a federal election

19

to vote by affirmation at any location;

20
21

22
23

3.

§

1973gg-

Order defendants to inform this Court within two

weeks of this Court's order which of the alternatives provided
by the NVRA the state will use to comply with the fail-safe
voter provisions of·the NVRA:

(a) permitting fail-safe voters

24
to vote at their old location (upon oral or written

25

26

affirmation), central location (upon written affirmation), or

27

,s. Motion for Further Relief

2

1

new location (upon such confirmation as required by state

2

law); or (b) permitting all fail-safe voters to vote at their

3

old' polling location upon oral or written affirmation; or (c)

4

permitting all fail-safe voters to vote at their new polling

5
6
7

location upon oral or written affirmation;
4.

Order defendants immediately to advise all affected

officers and agencies of this Court's Order; and

8
5.

Grant such other arid further relief as may be just

9

and proper.
10

11
12

Dated: October 22, 1997

13
14
15

Respectfully submitted,
MICHAEL J. YAMAGUCHI
United States Attorney

ISABELLE KATZ PINZLER
Acting Assistant Attorney
General

16
17

i

Yvtiduh {J1'j~

ELIZABETH JOHNSON
BARRY H. WEINBERG
MICHELE E. GILMAN
Attorneys, Voting Section
Civil Rights Division
United States
Department of Justice
P.O. Box 66128
Washington, DC 20035-6128

18
19

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21

22

(202)
FAX:

23
24
25

26
27

.S. Motion for Further Relief

3

307-3266
[phone]

CERTIFICATE OF SERVICE

Case. name:

Pete Wilson v. United States, No. C95-20042-JW,
and Voting Rights Coalition v. Pete Wilson, No.
C94-20860-JW (Consolidated) in the United states
District Court for the Northern District of
California

I, Michele E. Gilman, am employed in the District of
Columbia.
I am 18 years of age or older and not a party to the
within entitled cause.
My business address is Department of
Justice, Civil Rights Division, Voting Section, 320 1 st Street,
Washington, D.C. 20534.
I hereby certify that on October 22, 1997, I have caused to
be served the attached
NOTICE OF MOTION AND MOTION FOR FURTHER RELIEF
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
FOR FURTHER RELIEF
PROPOSED ORDER
NOTICE OF SUBSTITUTION OF COUNSEL
by mailing via Federal Express a true copy thereof enclosed in a
sealed envelope with postage prepaid as follows:
Daniel E. Lungren
Attorney General of the
State of California
Cyrus J. Rickards
Deputy Attorney General
1300 I Steet
Sacramento, CA 94244-2550

Robert Rubin
Nancy Stuart
Lawyer's Committee for Civil
Rights of the San Francisco
Bay Area
301 Mission Street, Suite 400
San Francisco, CA 94105

%·Jul {ltk{ljv
Michele E. Gilman

1
2
3

4
5
6
7

JANET RENO, Attorney General
for the United States
ISABELLE KATZ PINZLER
Asst. Atty General
ELIZABETH JOHNSON
BARRY H. WEINBERG
MICHELE E. GILMAN
Attorneys, Voting Section
Civil Rights Division
United States Department of 'Justice
P.O. Box 66128
Washington, DC 20035-6128
Telephone: [phone]

Local counsel:
MICHAEL J. YAMAGUCHI
United States Attorney
No. Dist. of California
MARY BETH UITTI
Chief of Civil Division
YONKEL GOLDSTEIN
B"ar No. 136169
280 South First Street
Suite 371
San Jose, CA 95113
[phone]

8

9

10
11

Attorneys for Defendants,
Counter-claimants and
Third-party Plaintiffs
UNITED STATES OF AMERICA
and JANET RENO,
The Attorney General

PETE WILSON, et al.,
Plaintiffs,

16
17
18

v.
UNITED STATES OF AMERICA,
et al.,

19

20

"I-'~ "".~

. Defendants,

·:~~\t·
~;;:g

)

)
)
)
)
)
)
)
)
)
)

_________________________ 1

21
22
23
24
25
26
27
.S. Memorandum of Law

.~

,,_'0'

UNITED STATES DISTRICT COURTL..~
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

13

15

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,I> .c.:;:

12

14

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','
"e'"

t;;;

Case No. C 95-20042-JW
Case No. C 94-20860 JW
(Consolidated)
UNITED STATES' MEMORANDUM
IN SUPPORT OF MOTION FOR
FURTHER RELIEF

Date: December 8, 1997
Time: 9:00 a.m .

1

TABLE OF CONTENTS

2
3

5
6

7
8

II.

2
2

B.

4

THE ALTERNATIVE RESIDENCY PROCEDURE IS A NON-VOTING
PURGE IN VIOLATION OF THE NVRA . . . .
.....
A.THE RESIDENCY CONFIRMATION OUTREACH PROCEDURE

1.

5

THE ALTERNATIVE RESIDENCY CONFIRMATION PROCEDURE

CALIFORNIA'S FAIL-SAFE PROVISIONS VIOLATE THE NVRA AND
MAY HAVE AN ADVERSE IMPACT ON MINORITY VOTERS

III. CONCLUSION . . . . . . . .

9

10
11

12
13
14
15

16
17

18
19

20
21

22
23

24
25

26
27
.S. Memorandum of Law

ii

9
15

1
TABLE OF AUTHORITIES

2
3

4
5
6
7

FEDERAL STATUTES

National Voter Registration Act of 1993, 42 U.S.C.
§§ 1973gg to 1973gg-10

1

42 U. S . C . § 1973 gg - 6 (d) (2)

3

42 U. S . C. § 1973 gg - 6 (b) (2)

2

42 U.S.C. § 1973gg-6(c)

8

8

42 U. S . C. § 19 73 gg - 6 (e) (2)

9, 10, 11

9
LEGISLATIVE MATERIALS
10
11
12

13

S. Rep. 103-6 (1993)

2,

H. Rep. 103-9 (1993)

8, 10
7, 10

STATE STATUTES

14

Cal. Elec. Code § 2224 (ARCP)

15

Cal. Elec. Code §14311 (fail-safe)

1, 11, 12

16

Cal. Elec. Code § 2035 (fail-safe)

10

17

MISCELLANEOUS

18

Joint Stipulation (Nov. 13, 1995)

3

19

Memorandum of Points and Authorities in Support of
Defendants I Opposition to Plaintiffs ' Motion for Further
Relief, at 8 (Aug. 25, 1995)
............

4

20
21

22

1, 2,

5,

9

Order Granting In Part and Denying In Part Plaintiffs Voting
Rights Coalition and United States l Motion for Further
Relief, at 5-6 (Nov. 2, 1995) . . . . . . . . . . . .
4

1
UNITED STATES' MEMORANDUM OF POINTS'AND AUTHORITIES
IN SUPPORT OF MOTION FOR FURTHER RELIEF

2
3

On May 4, 1995, this Court gave the State of California

4
5

forty-five days to comply with the National Voter

6

Registration Act of 1993, 42 U.S.C. §§ 1973gg to 1973gg-10.

7

Despite this Court's Order, California subsequently enacted

8

two additions to its election code which conflict with the.

9

NVRA.

On January 31, 1996, California enacted the

10

Alternative Residency Confirmation Procedure

11

Elec. Code § 2224, which permits counties to purge registered

("ARCP"), Cal.

I

12
13

14

voters for non-voting in contravention of the NVRA.

On

October 16, 1995, California enacted Cal. Elec. Code § 14311,
which requires persons who have moved within a county prior

15
to twenty-eight days before an election without re-

16
registering to vote to show identification before being

17
permitted to vote.

18
19

20

This requirement defies the NVRA's

mandate that for federal elections states provide at least
one location at which such "fail-safe" voters, who are already

21

registered voters, can vote by affirmation, without

22

identification.

23

requests that this Court declare California Election Code

24

sections 2224 and 14311 to be in violation of, and preempted

25

by, the NVRA.

Accordingly, the United States respectfully

26
27
.S. Memorandum of Law

-1-

1

II.

2

The NVRA prohibits non-voting purges, i.e., procedures

3

4

5

THE ALTERNATIVE RESIDENCY PROCEDURE IS A NON-VOTING
PURGE IN VIOLATION OF THE NVRA

which lead to the removal of an otherwise qualified voter
from the voting rolls for failure to vote.

42 U.S.C.

6

§

7

it clear that Congress considered the prohibition on purging

8

for non-voting an essential element of the Act:

1973gg-6(b) (2).

9

One of the purposes of this bill is to ensure that
once a citizen is registered to vote, he or she
should remain on the voting list so long as he or
she remainS eligible to vote in that jurisdiction.
The [Senate] Committee recognizes that while voting
is a right, people have an equal right not to vote,
for whatever reason. However, many States continue
to penalize such non-voters by removing their names
from the voter registrations rolls merely because
they have failed to cast a ballot in a recent
election ...

10
11

12
13
14

15

The legislative history of the NVRA makes

S. Rep. 103-6, at 17-18 (1993) (emphasis added).

16
Despite this language and despite the express
17

18
19

20
21

22
23

prohibition in the Act of non-voting purges, in January of
1996, the State of California enacted the ARCP.
Code

§

2224.

Cal. Elec.

This procedure is exactly the type of purge the

NVRA prohibits.
A.

THE RESIDENCY CONFIRMATION OUTREACH PROCEDURE
( "RCOP")

This Court previously considered the issue of

non~voting

24
purges in this case when the United States and private
25

26
27

plaintiffs challenged a list maintenance mechanism proposed
by the state in its first NVRA Implementation Manual, which
.S. Memorandum of Law

-2-

1

was submitted to this Court on March 17, 1995.

That

2 procedure, referred to as the Residency Outreach Confirmation
3

Procedure ("RCOP") permitted county registrars to send

4 ·nonforwardable "residency confirmation postcards" to voters

5
6
7

who had not voted within six months prior to a primary
election in even-numbered years or a general election in oddnumbered years.

8

If the postcard was returned as undeliverable without
9
10

11
12

forwarding address information, a forwardable confirmation
notice would be sent out pursuant to Section 8(d) (2) of the
NVRA, 42 U. S . C.

§

19 73 gg - 6 (d) (2) .

If this notice was not

13

returned and the voter did not vote in the next two federal

14

elections, the voter would be removed from the registration

15

list.

16

Joint Stipulation (Nov. 13, 1995).
The United States and private plaintiffs contended that

17

this procedure constituted a non-voting purge in violation of

18

the NVRA because non-voting was used as the trigger which

19

eventually could result in a voter's removal from the rolls.

20

21

22
23

The state contended that using non-voting to trigger the
NVRA's Section 8(d) (2) notice and removal procedure did not
violate the NVRA because it was not non-voting per

~

which

caused the voter to be purged, but rather, information

24
received in response to the residency confirmation postcards
25

26
27

that the voter was no longer at the address on record.

In

its brief in support of this argument, the state specifically
.S. Memorandum of Law

-3-

1 pointed out that if the voter did not return the residency
2
3
4
5
6
7
8

confirmation postcard, the voter remained on the rolls:
[IJf through mistake or a deep-seated
disgust with government forms or because
you had a bad day at the office or for
any reason at all, you sim~ly throw the
card away. nothing ha~~ens. You are not
removed from the voting rolls.
It is
only if the registrar receives
information from a new resident or the
post office indicating that you have
moved that the RCOP purge procedures are
triggered.

9
Memorandum of Points and Authorities in Support of

10
11

12

13

Defendants' Opposition to Plaintiffs' Motion for Further
Relief, at 8 (Aug. 25, 1995)

(emphasis added) .

Agreeing with this rationale, this Court held that RCOP

14

was not a non-voting purge:

15

which states that the card is undeliverable and then the

16

addressee fails to vote in subsequent elections, the Court

17

finds that the State's current

18

Outreach Program' does not violate the NVRA."

19

In Part and Denying In Part Plaintiffs Voting Rights

20

Coalition and United States' Motion for Further Relief, at 5-

21
22
23

6 (Nov. 2, 1995)

"Since the State receives a card

~Residency

Confirmation and
Order Granting

(emphasis added) .

At oral argument on the Motion for Further Relief, this
Court emphasized the crucial distinction between (i)

24
triggering the Section 8(d) (2) process because a residency

25
confirmation postcard is returned as undeliverable and (ii)

26
27

triggering the purge process simply because the voter chose

.S. Memorandum of Law

-4-

1

not to respond:

2

Here's what I would like to have you
address and which I understand is the
concern: in an effort to zealously police
the voting roles the state could use the
fact that a person doesn't vote to send
out lots of these cards, this results in
an obligation, creating obligation by
voters to respond in some way' or to
scrutinize about their eligibility to
vote when the NVRA has said that
nonvoting is okay, you can live in this
country until you're ninety years old and
vote for the first time. And that the
concern is that by using nonvoting as a
triggering event, that places a burden on
the voters which the NVRA has explicitly
said cannot be there.

3

4
5
6

7
8
9
10

11
12
13

Transcript, at 67-68.
Counsel for the state answered as follows:
My response to the court is that [the]
California system is not that.
It is not
remotely that, and that nobody is. removed
from the voter roll for failure to vote,
and I think what really goes to show that
is the fact that if this card goes out,
as we pointed out in the brief, and it
gets thrown away for any reason, nothing
happens.

14
15
16

17
18
19

20
21
22

Transcript, at 69

B.

(emphasis added) .

THE ALTERNATIVE RESIDENCY CONFIRMATION PROCEDURE
( "ARCP")

Shortly after this Court's ruling, in January 1996, the

23

state enacted an additional list maintenance procedure, now

24

codified as Cal. Elec. Code

§

2224, which contains the very

25

26
27
.S. Memorandum of Law

-5-

1

evil RCOP avoided. 1

2

Confirmation Procedure (IIARCplI)/ people registered to vote in

3

elections for federal office/ who have not voted in four

4
5
6

Under this Alternative Residency

years/ are sent a forwardable residency confirmation postcard
with a postage paid and pre-addressed return portion on which
the voter can verify or correct the address information.

7
Voters who do not respond to the postcard -- in the
8

state's terms/ those who throw the card away -- are placed on

9
10

11
12

the inactive voters list and sent a notice informing them
that they must vote within two general federal elections or
be removed from the list of voters/ even if the state

13

receives no information that they have moved.

14

words/ if the voter still lives at the same address/ but

15

chooses to ignore the confirmation postcard/ whether

16

11 • • •

17

forms or because you had a bad day at the office/II he or she

18

will now be removed from the list of voters.

In other

through mistake or a deep-seated disgust with government

Thus/ ARCP

19

20
21
22
23
24
25
26
27

1 The bill which enacted the procedure/ S.B. 1313/ was
submitted to the Department of Justice for review under
section 5 of the Voting Rights Act on December 23/ 1996.
Although the statute was passed in January of 1996/ it did not
go into effect until January of 1997. On June 23/ 1997/ the
United States precleared S.B. 1313 as enabling legislation.
The ARCP procedure was added to the revised NVRA
Implementation Manual and submitted to the United States on
January 14/ 1997. The United States precleared the manual as
enabling on August 18/ 1997. The four counties in California
which are covered under Section 5 of the Voting Rights Act
(Yuba/ Monterey/ Kings and Merced) must individually submit
their procedures under ARCP for approval under Section 5 .

.S. Memorandum of Law

-6-

1

accomplishes what RCOP did not.

2

after this Court's previous order on non-voting, a voter can

3

be removed from the list of eligible voters for failure to

4

5
6
7

Under the new law, enacted

vote despite the NVRA's express prohibition against nonvoting purges, and despite the legislative history and this
Court's statements which make it clear that registered voters
have a right not to vote, just as they have a right to vote.

8

The NVRA is explicit regarding the reasons for which a
9
10

11

12

voter may be purged from .the lists.

Sections 8(a) (3) and (4)

of the NVRA provide that the name of a

reg~strant

may not be

removed from the official list of eligible voters except:

13

(1) at the request of the registrant;

14

state law, by reason of criminal conviction or mental

15

incapacity; or (3) pursuant to a general program to remove

16

voters who have become ineligible by reason of death or a

17

change in residence.

18

(2) as provided by

This list does not include a failure to respond to

19

notices from local registrars.

20

history of the Act, as discussed earlier, shows that Congress

21

22
23

Indeed, the legislative

did not want such a failure to result in elimination from
voting rolls.

Moreover, the House Committee Report, while

noting the importance of keeping accurate and current voter

24

rolls, states that

II

[t]he Committee is concerned that [any

25

26
27

activity that is used to start, or has the effect of
starting, a purge of the voter rolls] can be abused and may
.S. Memorandum of Law

-7-

1

result in the elimination of names of voters from the rolls

2

solely due to their failure to respond to a mailing."

3

Rep. 103-9, at 15 (1993)

4
5
6
7

H.

(emphasis added) .

Congress recognized that prior to the NVRA most states
used non-voting as an indicator that a person had moved.
However, Congress was concerned about the discriminatory
effects of these laws, and sought to eliminate the

8
presumption that non-voting means a voter has moved.

9
While most States use the procedure of
removal for non-voting merely as an
inexpensive method for eliminating
persons believed to have moved or died,
many persons may be removed from the
elections rolls merely for exercising·
their right not to vote, a practice which
some believe tends to disproportionately
affect persons of low incomes, and blacks
and other minorities.

10
11

12
13
14
15

S. Rep. 103-6, at 17-18 (1993).

16
The state does not need to use non-voting to keep its

17

18
19

20

voter registration lists clean.

Section 8(c) of the NVRA

sets forth one way to comply with the NVRA's requirement that
each state establish a general program to remove voters who

21

have become ineligible by reason of change of address;

22

namely, using the National Change of Address information

23

supplied by the Postal Service.

24

But NCOA is not the exclusive way to track voters who have

25

moved.

26

can, and do,

42 U.S.C.

§

1973gg-6(c).

There are many, many other ways in which counties
identify voters who have become ineligible to

27
.S. Memorandum of Law

-8-

1 vote because they have moved.

For instance, California

2 counties rely on returned sample ballots sent out prior to
3

each election, change of address information from the

4

Department of Motor Vehicles and public assistance agencies,

5
6

7

address correction information from the Postal Service, and
returned voter notification cards, just to name a few.

All

of these provide the state with actual, reliable information

8
that the voter has become ineligible by reason of change of
9

10

11
12
13

address before the purge process is triggered.

Moreover,

many of these mailings go to all registered voters,

including

those who do n6t vote and are thereby targeted by the state's
new ARCP non-voting purge procedures.
The function of ARCP is as a purge for nonvoting.

14
15

Accordingly, the United States respectfully requests that

16

this Court declare the ARCP to be a non-voting purge in

17

violation of the NVRA and enjoin the state from its further

18

implementation.

19

II.

20

21

CALIFORNIA'S FAIL-SAFE PROVISIONS VIOLATE THE NVRA AND
MAY HAVE AN ADVERSE IMPACT ON MINORITY·VOTERS

The NVRA specifies the locations at which voters who

22

have moved within their registrar's jurisdiction and the same

23

congressional district without re-registering to vote may

24

cast their ballots in elections for federal office.

25

U.S.C.

26

specifying the permissible polling places for this narrow

§

1973gg-6 (e) (2) (A).

Congress went to the trouble of

27

.S. Memorandum of Law

42

- 9 -

1

class of voters in order "to incorporate an underlying purpose

2 of the Acti that once registered, a voter .

. remain on the

3

list of voters so long as the individual remains eligible to

4

vote in that jurisdiction."

5

6

H. Rep. 103-9, at 18 (1993) i S.

Rep. 103-6, at 34 (1993).
Pursuant to the NVRA, voters who have moved within their

7
registrar's jurisdiction and the same congressional district

8
without re-registering must be allowed to vote in elections

9
10

11
12

for federal office "at the option of the registrant" (i) upon
oral or written affirmation of their new address at their old
polling placei

(ii) upon written affirmation of their .new

13

address at a central location designated by the registrari or

14

(iii) upon "confirmation" of their new address "by such means

15

as are required by law" at their new polling place. 2

16

U.S.C.

17

these voters to vote upon oral or written affirmation at

18

either their old or new polling place, no other voting

19

locations need be provided for these voters.

20

19 7 3 gg - 6 (e) (2) (B) .

21

22

§

1973gg-6(e) (2) (A).

42

However, if the state permits

42 U.S.C. §

This option reflects Congress' desire to

ensure that there is at least one location at which a failsafe voter can vote solely upon affirmation in elections for

23
24
25
26

27

2
The distinction between "affirmation" a:nd "confirmation"
hinges on whether a voter may simply assert -.., under oath or not,
as the state may desire -- their current address (affirmation), or
whether the state can require some form of independent verification
of their address (confirmation).

.S. Memorandum of Law

- 10 -

1
2
3

4

5
6

federal office.
California law conflicts with this scheme.

Prior to the

NVRA, California law provided that voters who moved anywhere
in the state within twenty-eight days prior to an election
could vote at' their old polling place without affirmation or
identification.

Cal. Elec. Code

§

2035.

However, voters who

7

moved before the twenty-eight day registration deadline

8
without re-registering to vote could not vote in the

9
10
11
12

election.

Following this Court's May 1995 Order requiring

the state to comply with the NVRA, California enacted Cal.
Elec. Code § 14311, which provides that voters who have moved

13

within a county and who have not re-registered at their new

14

address may vote either at the central location or at their

15

new polling place.

16

"proof of current residence."

17

eight days of an election continue to be allowed to vote at

18

their old polling place; no showing of identification is

19

required of these voters. 3

20
21
22

23

At either location, such voters must show
Persons who move within twenty-

California's lack of compliance with the NVRA is clear,
as is the procedure the state can adopt to cure it.
the NVRA, 42 U.S.C.

§

Under

1973gg-6 (e) (2), in federal elections

identification can only be required at the new polling place

24
25
26

27

The bill which contains § 14311 was submitted to the
Department of Justice for review under Section 5 of the Voting
Rights Act on December 7, 1995. The United States precleared it on
February 5, 1996.
.S. Memorandum of Law

- 11 -

1

-- not at the central or old polling places.

2

California requires identification at bQth the central and

3

new locations and provides for voting at the old location

4

5
6

By contrast,

only for voters who have moved within twenty-eight days prior
to the election.

Moreover, the NVRA provides that if the

state permits fail-safe voters to vote upon affirmation at

7
either the old or the new polling place, no other locations
8

need be provided.

As noted earlier, this ensures that there

9
10
11

12

13
14

exists at least one location at which a fail-safe voter can
vote in federal elections without identification.

However,

under California law, only voters who have moved within
twenty-eight days of an election have this option.
The state's clear violation of the NVRA is particularly

15

troubling because the state appears to have the most

16

stringent fail-safe voter identification

17

country. 4

18

of State promulgated a regulation setting forth the

~equirements

in the

Pursuant to Cal. Elec. Code § 14311, the Secretary

19

20
21

22
23

24
25

26
27

4 This conclusion is based on the results of surveys which the
Federal Election Commission asked the states to complete as part of
the FEC' s report to Congress on the impact of the NVRA on the
administration of elections for federal office during the preceding
two-year period, 1995 through 1996.
Forty-three states and the
District of Columbia responded to the survey (six states are exempt
from th~ Act and Vermont had not yet implemented the Act).
California refused to report on any of the issues surveyed other
than registration statistics. The surveys revealed that only five
other states are requiring a form of identification from fail-safe
voters, and that none of those states are requiring more than one
form of identification from any fail-safe voter.
(See Attachment
A Declaration of Penelope Bonsall in Support of United States'
Motion for Further Relief.)

.S. Memorandum of Law

- 12 -

1

acceptable forms of identification to prove residency.

2

Attachment B.)

3

driver's licenses or California identification cards must

4

5
6

(See

This regulation provides that persons without

show two forms of identification to demonstrate their
residency.

These forms of identification include lease

agreements, mortgage statements, property tax statements,

7

income tax returns, utility'bills, credit card statements,
8

and the like, as well as a sworn statement from another voter

9
10

11
12

in the precinct stating that he or she can identify the
person attempting to vote and attesting to their address.
Poor persons are less likely to possess driver's licenses 5 and

13

even less likely to possess two of the alternative forms of

14

identification, since most are linked to property ownership

15

or financial stability.

16

disproportionately members of racial and language groups who

And in California, poor persons are

17

18
19

20

5 The 1990 U.S.
Department of Transportation Drivers License
Statistics show as follows:

21

Income

With Licenses

Without Licenses

22

<$10,000

73.4%

26.6%

23

$10,000-$19,999

84.7%

15.3%

24

$20,000-$34,999

92.2%

7.8%

$35,000-$49,999

95.1%

4.9%

>$50,000

97.3%

2.7%

25

26
27

.S. Memorandum of Law

- 13 -

1

2

are protected under the Voting Rights Act. 6
The NVRA expressly mandates that any list maintenance

3

program be "nondiscriminatory, and in compliance with the

4

Voting Rights Act of 1965."

5
6

Section 14311, in addition to

facially violating the NVRA, raises the potential for
discrimination, however unintentional, against minorities.

7
Accordingly, the United States respectfully requests that

8
this Court declare Section 14311 a violation of the NVRA and

9
10
11

12

order the state to bring its fail-safe voter provisions into
compliance with the NVRA insofar as the state does not permit
fail-safe voters who move prior to twenty-eight days before

13

an election to vote in federal elections by affirmation at

14

any location.

15

In order to bring its fail-safe voter provisions into

16

compliance with the NVRA for federal elections, the state has

17

three alternatives:

18

their old location (upon oral or written affirmation) ,

19

central location (upon written affirmation), or new location

20

(upon such confirmation as required by state law); or (b)

21

(1) permit fail-safe voters to vote at

permit all fail-safe voters to vote at their old polling

22
23

24
25

26
27

6 According to 1990 Census data, while Hispanics constitute
only 22.5% of the voting age population in California, they
constitute 39.3% of voting age persons living in poverty.
Likewise, blacks constitute 6.7% of the voting age population, but
10.7% of voting age persons living in poverty. See also 42 U.S.C.
§§
1973 and 1973aa-1a (provisions of the Voting Rights Act
protecting language minorities) .

.S. Memorandum of Law

- 14 -

1

location upon oral or written affirmation;7 or (c) permit all

2

fail-safe voters to vote at their new polling loca~ion upon

3

oral or written affirmation.

4
5
6

Only by selecting one of these

alternatives can the state remedy its current violation of
the NVRA.

Of course, the NVRA applies only to elections for

federal office.

Accordingly, the State may provide fail-safe

7
voters with a ballot containing only federal contests.

8
III.

CONCLUSION

9
10
11
12

For the foregoing reasons, the United States
respectfully requests that this Court declare Sections 2224
and 14311 of the California Election Code in violation of and

13

preempted by the NVRA, and order the state to adopt fail-safe

14

procedures that comply with the NVRA and to seek review for

15

these new procedures under Section 5 of the Voting Rights

16

Act, 42 U.S.C. § 1973c.

17

18
19
20
21
22
23

24
25

26
27

7
We note that this option permits the state to use its
present procedure for voters.who move within twenty-eight days of
an election (or an affirmation procedure) for all voters who move
before an election without updating their voter registration
records.

.S. Memorandum of Law

- 15 -

1

2
3

Respectfully submitted,
MICHAEL J. YAMAGUCHI
United States Attorney

ISABELLE KATZ PINZLER
Acting Assistant Attorney
General

%~i~tttu
ELIZABETH JOHNSON

4

5

BARRY H. WEINBERG
MICHELE E. GILMAN
Attorneys, Voting Section
Civil Rights Division
United States
Department of Justice
P.O. Box 66128
Washington, DC 20035-6128
[phone]
FAX:
[phone]

6
7
8
9
10
11
12
13

14
15
16
17
18
19

20
21

22
23

24
25

26
27
.S. Memorandum of Law

- 16 -

Attachment 5

U.S. Department of Justice
Civil Rights Division

Office of the Assistant Attorney General

Washington, D.C. 20530

February 11, 1997
DLP:EJ:BHW:TCH:POB
DJ 166-6-5

VIA TELEF ACSIMILE & FEDERAL EXPRESS
The Honorable Bruce M. Botelho
Attorney General
State of Alaska
450 Diamond Courthouse
P.O. Box 110300
Juneau, Alaska 99811-0300
Dear Mr. Attorney General:
This is to notify you that I have authorized the filing of a lawsuit against the State of
Alaska, the Alaska Lieutenant Governor, ar;td the Alaska Director of Elections to compel
compliance with the National Voter Registration Act of 1993 ("NVRA"), 42 U.S.C.
§§ 1973gg to 1973gg-10 .
. As you are aware, the NVRA, which took effect January 1, 1995, requires that states
" specific procedures and protections set forth in the Act in purging registrants from the
follow
registration list for elections for federal office. In particular, the NVRA provides that a voter
may not be removed from the registration list for federal elections by reason of the voter's
failure to vote. 42 U.S.C. § 1973gg-6(b)(2).
Under Alaska's voter removal procedures, which were adopted for the stated purpose
of conforming state law to the requirements of the NVRA, registered voters who fail to vote
within a four-year period are specifically targeted for inclusion in the state's voter removal
program. These procedures can have the end result of a voter being purged from the voter
registration list for federal elections simply for having failed to vote. As we discussed in our
December 10, 1996 letter to Assistant Attorney General Kathleen Strasbaugh, these procedures
violate the NVRA.

cc:

Records Chrono Herren O'Beirne Inv. File
Johnson/Weinberg/Wertz/Murphy/Johnson-Betts

Our concern is that no registered voter in the State of Alaska be purged from the
registration list for federal elections because of his or her failure to vote. Thus, we intend to
move forward on this matter expeditiously. However, we are willing to delay filing the
complaint for a short period of time if the State is willing to resolve this matter voluntarily
and negotiate a consent decree that would be filed with the complaint.
Under these circumstances, we request that you apprise us within ten days whether the
State wishes to discuss settlement of this matter. Patricia O'Beirne, an attorney in the Voting
Section, will be in contact with your office. In the meantime, Ms. O'Beirne can be reached at
202-307-6264.

Sincerely,

Isabelle Katz Pinzler
Acting Assistant Attorney General
Civil Rights Division

Attachment 6

U.S. Department of Justice

Civil Rights Division

Office of the Assistant Attorney General

Washington. D. C. 20530

February 11, 1997

DLP:EJ:BHW:TCH:POB
DJ 166-69-11

VIA TELEF ACSIMILE & FEDERAL EXPRESS
The Honorable Mark Barnett
Attorney General
State of South Dakota
500 East Capitol Avenue
Pierre, South Dakota 57501-5070
Dear Mr. Attorney General:
This is to notify you that I have authorized the filing of a lawsuit against the State of
South Dakota, the South Dakota State Board of Elections, and the South Dakota Secretary of
State to compel compliance with the National Voter Registration Act of 1993 ("NVRA"), 42
U.S.C. §§ 1973gg to 1973gg-10.
As you are aware, the NVRA, which took effect January 1, 1995, requires that states
follo~ specific procedures and protections set forth in the Act in purging registrants from the
registration list for elections for federal office. In particular, the NVRA provides that a voter
may not be removed from the registration list for federal elections by reason of the voter's
failure to vote. 42 U. S. C. § 1973 gg-6(b)(2). The Act also provides that voter removal
programs for federal elections must be conducted in a manner which is uniform,
nondiscriminatory and in compliance with the Voting Rights Act of 1965. 42 U.S.C.
§ 1973gg-6(b)(1).
Under South Dakota's voter removal procedures, which were adopted to conform state
law to the requirements of the NVRA, registered voters who fail to vote within a four year
period are specifically targeted for inclusion in the state's voter removal program. These
procedures can have the end result of a voter being purgeq from the voter registration list for
federal elections simply for having failed to vote. As we have made clear in correspondence
cc:

Records Chrono Herren Q'Beirne Inv. File
Johnson/Weinberg/Wertz/Murphy/Johnson-Betts

to the Secretary of State on June 19, 1995, December 7, 1995, and November 5, 1996, these
procedures violate the NVRA.
Our concern is that no registered voter in the State of South Dakota be purged from
the registration list for federal elections because of his or her failure to vote. Thus, we intend
to move forward on this matter expeditiously. However, we are willing to delay filing the
complaint for a short period of time if the State is willing to resolve this matter voluntarily
and negotiate a consent decree that would be filed with the complaint.
Under these circumstances, we request that you apprise us within ten days whether the
State wishes to discuss settlement of this matter. Patricia O'Beirne, an attorney in the Voting
Section, will be in contact with your office. In the meantime, Ms. O'Beirne can be reached at
202-307 -6264.

Sincerely,

Isabelle Katz Pinzler
Acting Assistant Attorney General
Civil Rights Division

Attachment 7

Case 1:93-cv-01134-BRB-LFG Document 91 Filed 03/19/07 Page 1 of 3

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA,
Plaintiff,
v.

No. CIV-93-1134-LH/LFG

CIBOLA COUNTY, NEW MEXICO;
CIBOLA COUNTY BOARD OF
COMMISSIONERS; ELMER CHAVEZ,
BENNIE COHOE, FRANK EMERSON,
ANTONIO GALLEGOS, EDWARD
MICHAEL, and JANE PITTS, Members
of the Cibola County Board of
Commissioners; and EILEEN M.
MARTINEZ, Cibola County Clerk.
Defendants.

SECOND ORDER
EXTENDING AND MODIFYING STIPULATION AND ORDER
ORIGINALLY ENTERED APRIL 21, 1994

Before BALDOCK, Circuit Judge, and CONWAY and HANSEN, Senior District
Judges.*

PER CURIAM.

*

This three judge panel is convened in accordance with 28 U.S.C. § 2284 and 42
U.S.C. § 1973aa-2.
1

Case 1:93-cv-01134-BRB-LFG Document 91 Filed 03/19/07 Page 2 of 3

Plaintiff United States initiated this action in September 1993 alleging violations of
the Voting Rights Act of 1965 (VRA) against Defendants Cibola County, New Mexico, and
its duly elected officials. According to the complaint, VRA violations arose from election
practices and procedures adversely affecting Native Americans residing in Cibola County.
Pursuant to a court-approved “Stipulation and Order” (decree), the United States has kept
careful watch over Cibola County’s electoral process for the past thirteen years. The Court
entered the original decree in this case directing Defendants’ compliance with the VRA on
April 21, 1994. Upon the decree’s expiration ten years hence, the Court on May 3, 2004,
modified and extended the decree at the parties’ behest. The first order modified and
extended the original decree through December 31, 2006. Now before the Court is the
parties’ joint motion for a second order modifying and extending the decree through January
15, 2009. Cibola County and its duly elected officials concede that, although “some
progress” has been made, they remain in violation of the VRA and the Court’s decree.
Pursuant to an amended complaint filed January 31, 2007, the county and it officials further
concede their voting practices and procedures violate the National Voter Registration Act of
1993 (NVRA) and the Help America Vote Act of 2002 (HAVA).1
The Court grants the parties’ joint motion (doc. # 88), and incorporates into this order
their Amended Joint Stipulation and Native American Election Information Program (doc.
# 89). The decree originally entered on April 21, 1994, and first modified on May 3, 2004,

1

Defendants stipulated to the filing of the amended complaint. See Fed. R. Civ. P.

15(a).
2

Case 1:93-cv-01134-BRB-LFG Document 91 Filed 03/19/07 Page 3 of 3

is hereby modified and extended a second time. The Court shall retain jurisdiction over the
second modified and extended decree through January 15, 2009, after which date the parties
should be prepared for the entry of final judgment herein. Cibola County and its duly elected
officials are hereby directed to come into complete compliance with the VRA, NVRA and
HAVA by that date. The parties are forewarned that, after thirteen years, the time for
Defendants to fully comply with federal law is now. If Defendants are not in complete
compliance with the VRA, NVRA and HAVA on January 15, 2009, the Court shall direct
Defendants to show cause whey they should not be held in contempt of this Court’s decree.
See United States v. McKinley County, 941 F. Supp. 1062, 1065 (D.N.M. 1996) (“Entry of
a consent decree is a discretionary exercise of judicial power enforceable by contempt.”).
SO ORDERED.
Entered for the Court
this 19th day of March, 2007

Bobby R. Baldock
United States Circuit Judge

John E. Conway
Senior United States District Judge

C. LeRoy Hansen
Senior United States District Judge

3

Case 1:93-cv-01134-BRB-LFG Document 89 Filed 01/31/07 Page 1 of 28

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA,

)
)
Plaintiff,
)
)
v.
)
)
CIBOLA COUNTY, NEW MEXICO;
)
CIBOLA COUNTY BOARD OF
)
COMMISSIONERS; ELMER CHAVEZ, )
BENNIE COHOE, FRANK EMERSON, )
ANTONIO GALLEGOS, EDWARD
)
MICHAEL, and JANE PITTS, Members
)
of the Cibola County Board of
)
Commissioners; and EILEEN M.
)
MARTINEZ, Cibola County Clerk,
)
)
Defendants. )
____________________________________)

Civil Action No. 93-1134-LH/LFG

AMENDED JOINT STIPULATION
The United States and Defendants (“Cibola County” or “the County”), agree through
their undersigned counsel to the following Amended Joint Stipulation.
Cibola County has been subject to Section 203 of the Voting Rights Act of 1965, as
amended, 42 U.S.C. § 1973aa-1a, (“Section 203”) since 1984 for American Indians who speak
the Keresan language. In 1992, the County’s coverage under Section 203 was extended to
American Indians who speak the Navajo language. In 2002, the Director of the Bureau of the
Census determined that coverage under Section 203 should be continued for both language
groups. This coverage was triggered by three American Indian reservations located in whole or
in part in the County – the Acoma Pueblo (“Acoma”), the Laguna Pueblo (“Laguna”), and the
Ramah Chapter of the Navajo Nation (“Ramah”).

Case 1:93-cv-01134-BRB-LFG Document 89 Filed 01/31/07 Page 2 of 28

Section 203 requires that all information that is provided by Cibola County in English
about voter “registration or voting notices, forms, instructions, assistance, or other materials or
information relating to the electoral process, including ballots,” must be provided in the Keresan
and Navajo languages to the extent that they are needed to allow language minority group
members to be informed of and participate effectively in the electoral process and all votingrelated activities. 42 U.S.C. § 1973aa-1a(c). The provisions of Section 203 apply to all stages of
the electoral process, “including, for example the issuance, at any time during the year, of
notifications, announcements, or other informational materials concerning the opportunity to
register, the deadline for voter registration, the time, places and subject matters of elections, and
the absentee voting process.” Attorney General’s Procedures for the Implementation of the
Provisions of the Voting Rights Act Regarding Language Minority Groups, 28 C.F.R. § 55.15.
Because the Keresan and Navajo languages are historically unwritten, defendants are required to
furnish oral instructions, assistance and other information relating to registration and voting in
the Keresan and Navajo languages. 42 U.S.C. § 1973aa-1a(c); see also 28 C.F.R. § 55.12(c).
The United States filed this action against Cibola County, New Mexico, the Cibola
County Board of Commissioners, the individual members of the Cibola County Board of
Commissioners, and the Cibola County Clerk (collectively, “County”) on September 27, 1993,
alleging violations of Sections 2 and 203 of the Voting Rights Act of 1965, as amended, 42
U.S.C. §§ 1973 and 1973aa-1a, arising from Cibola County’s election practices and procedures
as they affected Native American citizens of the County, including those Native American
citizens who rely in whole or in part on the Keresan or Navajo language.
The County did not contest that, prior to 1994, it failed to make the election process in
Cibola County equally available to Native American and non-Native American citizens as
2

Case 1:93-cv-01134-BRB-LFG Document 89 Filed 01/31/07 Page 3 of 28

required by Section 2 and the Fourteenth and Fifteenth Amendments, nor did the County contest
that in past elections it had failed to comply fully with the minority language requirements of
Section 203. On April 21, 1994, this Court entered a Stipulation and Order (“Stipulation”)
between the parties instituting the Native American Election Information Program (“NAEIP”) in
Cibola County to remedy past non-compliance with the above-mentioned provisions of federal
law. The Order, by its terms, was scheduled to expire on March 15, 2004.
From 1994 through 2003, the County made some progress under the Stipulation, but the
County had failed to comply fully with its requirements. The County conceded that its failure to
provide all instructions, assistance and other voting related information orally in Navajo and
Keresan constituted good cause to extend the Stipulation through December 31, 2006, and the
United States agreed to renegotiate its provisions. On March 15, 2004, the parties moved this
Court for an Order extending and modifying the Court’s April 21, 1994 Order, as set forth in an
accompanying Joint Stipulation. Although the Joint Stipulation streamlined the County’s
obligations, it retained the core requirements of the NAEIP. The Court approved the Joint
Stipulation as an Order on April 22, 2004.
The County has not met these streamlined requirements. In particular, the County failed
to provide the Voting Rights Coordinators (“Coordinators”) with required training regarding
their obligations and responsibilities under the Joint Stipulation and NAEIP before the November
2004 and June 2006 elections. As a consequence, the County did not perform tasks agreed to
and ordered in the Joint Stipulation. For example, the County did not ensure that the requisite
radio announcements in the relevant American Indian languages were made during the sixty-day
period before the 2004 and 2006 elections. Nor did it ensure that the Coordinators conducted
translation training for bilingual poll workers for those elections. At least one Coordinator did
3

Case 1:93-cv-01134-BRB-LFG Document 89 Filed 01/31/07 Page 4 of 28

not attend tribal meetings to provide election and registration information to community
members, as required by the Joint Stipulation. In 2005, the County decided not to employ
Coordinators, even though each of the individuals who had served most recently as a
Coordinator was required to attend State and County election training in accordance with the
NAEIP. Although the Coordinators objected to such treatment, the County rejected their request
to be paid for their services in 2005.
The County also failed to process many valid, timely voter registration applications for
the November 2004 election in violation of Section 8 of the National Voter Registration Act of
1993 (“NVRA”), 42 U.S.C. § 1973gg-6. In fact, the County failed to process as many as a
hundred voter registration applications before early voting began for the November 2004
election. This failure, in turn, prevented several would-be voters from participating in early
voting, and forced many more to cast provisional ballots on election day. Moreover, at least 16
of the provisional ballots which were rejected and not counted for the November 2004 election
were cast by voters who had on file with the County valid, timely voter registration applications.
These 16 voters, all of whom cast ballots at precincts located on American Indian reservations in
the County, were disenfranchised by the County’s errors. Cibola County continued to have
numerous registration list errors for the June 6, 2006 federal primary election due, in part, to the
County’s practice of having voters’ names removed from the registration list or placed on the
inactive list solely on the basis that the voter had not voted in any election for two federal
election cycles (or four years).
In addition, the County disenfranchised many other voters by failing to ensure that
provisional ballots were available in all polling places by the time the polls were scheduled to
open on November 2, 2004 and/or failed to provide some provisional voters with the voter
4

Case 1:93-cv-01134-BRB-LFG Document 89 Filed 01/31/07 Page 5 of 28

identification/affirmation envelope. These failures violate Section 302 of the Help America Vote
Act of 2002 (“HAVA”), 42 U.S.C. § 15482. Many polling places in Cibola County did not
receive provisional ballots until more than two hours after the polls opened. As a result, several
prospective voters were turned away without being offered a provisional ballot. Moreover, the
County did not provide at least two polling places with voter identification/affirmation
envelopes, by which voters affirm their eligibility to vote, as required by Section 302 of HAVA,
42 U.S.C. § 15482(a)(2). At least 36 provisional ballots from the November 2004 election, most
of which were cast at polling places on the Laguna Pueblo reservation, were rejected because the
County failed to provide the envelope used for the required affirmation. Cibola County did not
properly train election officials prior to the June 6, 2006 federal primary election to ensure that
voters, who were otherwise qualified to receive a provisional ballot, would receive a provisional
ballot for that election.
Pursuant to Section 303(b) of HAVA, 42 U.S.C. § 15483(b), for elections for federal
office held in 2004 and after, election officials are required to obtain appropriate identification
information from voters who registered to vote by mail on or after January 1, 2003 and who had
not previously voted in an election for federal office. The County failed to ensure that such
voters provided appropriate identifying information prior to casting ballots in the November 2,
2004 federal election. For the June 6, 2006 federal primary election, Cibola County did not train
poll workers regarding the identification requirements for such voters or the forms of
identification sufficient to meet these requirements.
With the written consent of the County, on January 31, 2007, the United States filed an
amended complaint against the County to enforce the provisions of the NVRA and HAVA
discussed above.
5

Case 1:93-cv-01134-BRB-LFG Document 89 Filed 01/31/07 Page 6 of 28

The County concedes that it has failed to comply substantially with the Joint Stipulation
in this case, and that its voter registration practices before and after the November 2004 general
election violate Section 8 of the NVRA. The County further admits that, for federal elections in
2004 and 2006, it failed to comply substantially with the provisional ballot requirements of
Section 302 of HAVA and failed to obtain the appropriate identification information from firsttime voters in the jurisdiction who registered by mail, as required by Section 303 of HAVA.
Based on these violations, the parties agree that there is good cause to extend the
provisions of the Joint Stipulation, as amended herein. The parties agree that these amendments
and the additional relief set forth below are necessary to ensure future compliance with this
Amended Joint Stipulation, Sections 2 and 203 of the Voting Rights Act, Section 8 of the
NVRA, and Sections 302 and 303 of HAVA.
Accordingly, the parties stipulate to the following:
1.

The County Commission shall at all times provide adequate funding to ensure that

the County’s duties and obligations under this Amended Joint Stipulation are carried out to the
greatest possible extent.
2.

The County Defendants agree to carry out their responsibilities under this

Amended Joint Stipulation in accordance with appropriate state and federal laws.
3.

The County shall make all phases of the election process as accessible to the

Native American populations at the Acoma, Laguna and Ramah reservations within Cibola
County as they are to the remainder of the County’s population. Accordingly, the County shall
provide information, publicity, and assistance in the Keresan and Navajo languages regarding all
aspects of the electoral process, including but not limited to voter registration, voter registration
cancellation, absentee voting, early voting, provisional voting, procedures at the polls including
6

Case 1:93-cv-01134-BRB-LFG Document 89 Filed 01/31/07 Page 7 of 28

translation of the ballot, and training of polling officials and translators as outlined in the NAEIP,
as amended and attached to this Amended Joint Stipulation. The revised NAEIP shall supersede
any and all previous NAEIPs for the County.
4.

To assist in the effectiveness of this Amended Joint Stipulation and to ensure the

continued enforcement of the voting guarantees of the Voting Rights Act and the Fourteenth and
Fifteenth Amendments to the Constitution, Cibola County should remain designated for federal
observers pursuant to Section 3(a) of the Voting Rights Act of 1965, as amended, 42 U.S.C. §
1973a(a). The County recognizes the authority of federal observers to observe all aspects of the
voting process conducted in the polls on election day, including assistance to voters in the voting
booth provided that the voter does not object to being observed.
5.

The County recognizes and agrees that greater supervision of the NAEIP is

necessary to ensure compliance with this Amended Joint Stipulation and, as set forth herein,
shall provide greater supervision and more frequent reports regarding the County’s compliance
with this Amended Joint Stipulation and the NAEIP.
6.

The County shall ensure that the Coordinators are fairly compensated for the time

they expend fulfilling their responsibilities under the NAEIP. Work performed by the
Coordinators outside of the contract period will be compensated on a per diem and pro rata basis.
7.

The County shall immediately notify counsel for the United States in the event a

vacancy should occur in a Coordinator position.
8.

For each month of his or her contract, each Coordinator shall complete the

Monthly Coordinator Report, which is attached to this Amended Joint Stipulation, detailing his
or her activities under the NAEIP and provide a copy to the County Clerk not later than the end
of the first week following such month. The County shall submit a copy of the completed
7

Case 1:93-cv-01134-BRB-LFG Document 89 Filed 01/31/07 Page 8 of 28

Monthly Coordinator Reports to the State Director of Elections and counsel for the United States
by the end of the second week following such month.
9.

After each election, the County shall prepare a report detailing, by paragraph, the

specific efforts made by the County to comply with each provision of the NAEIP. The County
may incorporate by reference any information already supplied in the Monthly Coordinator
Reports. If an appropriate provision is not specifically mentioned in the report and the County
fails to provide details within 30 days of written notice of such omission by the United States,
noncompliance with that provision shall be presumed. The County shall submit the report to the
State Director of Elections and counsel for the United States not later than 30 days after the
election.
10.

The County shall ensure that all timely, valid voter registration applications are

processed and entered into the computerized statewide voter registration list not later than five
business days after their receipt by the County, unless registration is closed pursuant to N.M.S.A.
§ 1-4-8(A). Notwithstanding this requirement, the County shall ensure that all valid voter
registration applications are processed and entered into the computerized statewide voter
registration list no later than 20 days before any federal election. At least 15 days before any
such election, the County shall certify in writing that it has processed all valid voter registration
applications and that the names of such voters appear in the computerized statewide voter
registration list. The County shall file this certification with this Court with service copies to
counsel for the United States.
11.

The County shall ensure that the County’s official voter registration lists to be

used for early voting and those to be used in the polls on election day are prepared at a time and

8

Case 1:93-cv-01134-BRB-LFG Document 89 Filed 01/31/07 Page 9 of 28

in a manner calculated to reflect all voters who have submitted timely, valid voter registration
applications.
12.

The County shall restore to the official voter registration list the name of any

voter whose name was placed on the inactive list or otherwise removed from the official voter
registration list in a manner inconsistent with the procedures set forth in Section 8 of the NVRA
during the preceding two years. The County shall complete this requirement no later than sixty
days from the date of this filing. The County shall provide to counsel for the United States a list
of the names of all voters whose names were restored to the official voter registration list
pursuant to this paragraph.
13.

The County shall not place the name of any voter on the inactive list or otherwise

remove the voter’s name from the official voter registration list solely by reason of the person’s
failure to vote. The County shall only place the name of any voter on an inactive list based on
objective information indicating that the voter has become ineligible to vote due to having
moved, such as returned mail with no forwarding address or National Change of Address
program data showing a move outside the County. This shall not preclude the County from
immediate removals from the voter registration list, in accordance with state law, of the name of
any voter who is confirmed to have become ineligible to vote due to death or disqualifying
felony, or who confirms in writing a move outside the County.
14.

For all Cibola County voters who registered to vote on or after January 1, 2003,

and prior to October 6, 2004, the County shall identify all such individuals who registered to vote
by mail and have not provided identification pursuant to Section 303(b) of HAVA, 42 U.S.C. §
15483(b)(2)(A). For all such voters, the County shall ensure that the voter complies with the

9

Case 1:93-cv-01134-BRB-LFG Document 89 Filed 01/31/07 Page 10 of 28

HAVA identification requirements in the next federal election in which the voter attempts to
vote, unless:
(a)

The voter voted in any Federal election in New Mexico prior to filing the
registration application, as set forth in Section 303(b)(1)(B); or

(b)

The voter provided a copy of a valid photo identification or another form of
acceptable identification with his or her voter registration application, as set forth
in Section 303(b)(3)(A) of HAVA and N.M.S.A. § 1-4-5.1(I)(4)(a); or

(c)

The voter provided at least the last 4 digits of his or her social security number
with his or her voter registration application and the County or State election
official can match the information submitted with an existing State identification
record bearing the same number, name and date of birth as provided in the
individual’s voter registration, as set forth in Section 303(b)(3)(B) of HAVA; or

(d)

The voter is entitled to vote by absentee ballot under the Uniformed and Overseas
Citizens Absentee Voting Act, 42 U.S.C. §§ 1973ff-1, et seq., or is entitled to vote
otherwise than in person under any other federal law, as set forth in Section
303(b)(3)(C) of HAVA.

The County shall complete the requirements of this paragraph no later than 60 days from the date
of this filing. For all mail-in registrations received by the County on or after the date of this
Amended Joint Stipulation, the County shall ensure that voters requiring identifying information
under HAVA are so identified at the time their voter registration information is entered in the
computerized statewide voter registration list and that such list reflects such identification. The
County shall provide to counsel for the United States a list of the names of all voters who were
identified under this paragraph.
10

Case 1:93-cv-01134-BRB-LFG Document 89 Filed 01/31/07 Page 11 of 28

15.

The County shall ensure that all poll workers are trained prior to any election for

federal office regarding the designation on the registration lists of voters who are required to
produce identification in order to cast a ballot, the need to request identification from such
voters, and the forms of identification that may be accepted for this purpose.
16.

The County shall ensure that sufficient numbers of provisional ballots are

provided not later than 6:00 a.m. on election day to all polling places to be used for any federal
election. The County also shall ensure that sufficient numbers of provisional ballots are
available at any location to be used for early voting in any federal election at least one hour
before early voting is scheduled to begin. In addition, the County shall ensure that each
provisional ballot includes the necessary voter identification/affirmation envelope.
17.

The County shall ensure that all poll workers for federal elections are trained

regarding the need to contact the County Clerk’s office to verify the registration status of any
individual who seeks to vote, but whose name is not on the voter registration list; the
circumstances under which a voter is to be offered a provisional ballot; and the requirement that
a provisional voter complete fully the identification/affirmation envelope for such a ballot.
18.

The Parties agree that, in the event of substantial non-compliance with this

Amended Joint Stipulation, the parties shall confer for the purpose of seeking the appointment of
a third party to oversee the NAEIP and to ensure the County’s compliance with federal voting
laws.
19.

This Amended Joint Stipulation shall remain in effect through January 15, 2009.

20.

The Court shall retain jurisdiction to enter further relief or such other orders as

may be necessary for the effectuation of the terms of this Amended Joint Stipulation and to

11

Case 1:93-cv-01134-BRB-LFG Document 89 Filed 01/31/07 Page 12 of 28

ensure compliance with Sections 2 and 203 of the Voting Rights Act, the NRVA, HAVA, and
the Fourteenth and Fifteenth Amendments to the Constitution.
Agreed and stipulated to on this 31st day of January, 2007.
For Plaintiff:

For Defendants:

UNITED STATES OF AMERICA

CIBOLA COUNTY, NEW MEXICO, et al.

ALBERTO R. GONZALES
Attorney General

/s/
JOE C. DIAZ
JOAN D. MARSAN
Modrall, Sperling, Roehl,
Harris & Sisk, P.A.
500 Fourth Street, N.W.
Bank of America Centre, Suite 1000
P.O. Box 2168
Albuquerque, New Mexico 87103-2168

WAN J. KIM
Assistant Attorney General
Civil Rights Division
DAVID C. IGLESIAS
United States Attorney

/s/
JOHN K. TANNER
GAYE L. TENOSO
RICHARD A. DELLHEIM
M. ERIC EVERSOLE
Attorneys, Voting Section
Civil Rights Division
U.S. Department of Justice
Room 7254-NWB
950 Pennsylvania Avenue, NW
Washington, DC 20530
[phone] (telephone)
[phone]
[e-mail]

12

Case 1:93-cv-01134-BRB-LFG Document 89 Filed 01/31/07 Page 13 of 28

I hereby certify that on January 31, 2007,
I filed the foregoing pleading electronically
through the CM/ECF System, which caused
the following parties of counsel to be served
by electronic means, as more fully reflected on
the Notice of Electronic Filing.
Elizabeth L. German
[e-mail]
Raymond Hamilton
[e-mail]
Anna E Tuttle
[e-mail]

Manual Notice List
The following is the list of attorneys who are not on the list to receive e-mail notices for this case
who therefore require manual noticing).
John K. Tanner
Gaye L. Tenoso
Richard Dellheim
M. Eric Eversole
Sada Manickam
US Department of Justice
Civil Rights Div - Voting Section
950 Pennsylvania Ave
Rm 7254-NWB
Washington, DC 20530

MODRALL, SPERLING, ROEHL, HARRIS
& SISK, P.A.

By:/s/
Joe C. Diaz
Joan D. Marsan
Attorneys for Cibola County

13

Case 1:93-cv-01134-BRB-LFG Document 89 Filed 01/31/07 Page 14 of 28

THE NATIVE AMERICAN ELECTION INFORMATION PROGRAM
I.

Native American Voting Rights Coordinators
A.

Cibola County shall continue to employ three Native American Voting Rights

Coordinators (“Coordinator(s)”) to coordinate the Native American Election Information
Program (“NAEIP”) in the County. One of the Coordinators shall be bilingual in Navajo and
English, and shall serve primarily the area of the Ramah Chapter of the Navajo Nation. Two of
the Coordinators shall be bilingual in Keresan and English, and one shall serve primarily the area
of the Acoma Pueblo, while the other shall serve primarily the area of the Laguna Pueblo.
B.

Cibola County shall ensure that each Coordinator is paid a salary commensurate

with his or her services rendered under this NAEIP and shall provide compensation to cover all
reasonable travel, lodging and food expenses incurred for his or her attendance at State, local or
other election training or other events permitted or required by this NAEIP.
C.

In the event of a vacancy in the Coordinator position, the County Clerk shall

immediately notify the United States and tribal officials from the appropriate Pueblo or Chapter.
Although the County is free to solicit applicants through its normal job selection process, it must
seek recommendations on four qualified applicants from the appropriate tribal leaders. The
County shall select the most qualified candidate, who otherwise satisfies any County
employment requirements, from all available applicants. The County must complete this process
within 90 days of the vacancy. A vacancy does not relieve the County of its obligations under
the NAEIP.
D.

The Coordinators shall be trained by the State and County in all aspects of the

election process, and shall attend all election seminars by the Secretary of State and/or the Cibola
County clerk. In addition, at least 90 days before any federal primary or general election,
14

Case 1:93-cv-01134-BRB-LFG Document 89 Filed 01/31/07 Page 15 of 28

the County Clerk shall fully brief the coordinators regarding their duties under the NAEIP and
Section 203 of the Voting Rights Act. The County Clerk must ensure that each Coordinator has
a copy of the current NAEIP and the Amended Joint Stipulation and other materials that would
ensure their compliance with the NAEIP. The County Clerk shall notify tribal leaders from
Acoma, Laguna, and Ramah and attorneys from the Department of Justice of County-sponsored
training sessions at least seven days before the training and shall invite the participation of these
tribal leaders and Department of Justice attorneys.
E.

The Coordinators shall, under the supervision of the County Clerk, oversee the

NAEIP generally and regularly attend meetings of their respective communities. In years with
federal elections, the Coordinators shall attend at least two events or meetings in their respective
communities where 30 or more voting-age members of the reservation are likely to be in
attendance. These events or meetings may include, but are not limited to, tribal council or tribal
officers meetings, public gatherings, tribal fairs, events at the local high schools or centers that
serve elderly citizens, and other public functions. During any event or meeting attended by the
Coordinator, he shall, as appropriate: (1) announce the date of the next scheduled election, the
offices, if any, open for election, and any non-candidate provisions which shall appear on the
ballot; (2) announce the availability of and deadlines for voter registration; (3) provide an
opportunity to register to vote by making voter registration applications available and offering
language assistance in filling out the applications; and (4) announce any scheduled training for
election translators and invite the public to attend.
F.

The Coordinator for the Ramah Navajo Chapter shall post the election schedule

and all other election-related information at the Chapter House; the Coordinators for the Acoma
Pueblo and the Laguna Pueblo shall post the election schedule and other election-related
15

Case 1:93-cv-01134-BRB-LFG Document 89 Filed 01/31/07 Page 16 of 28

information at the relevant tribal office building. The Coordinators shall ensure that voter
registration applications are available in plain view at each location.
G.

Beginning sixty days before any election and continuing through election day, the

Coordinators shall ensure that at least three announcements a day in are made on weekdays on
the radio station KTDB, in the Navajo language, and radio station KUNM, for the Keresan
language, or other comparable stations. These radio announcements shall be prepared by the
Coordinators and shall provide voters with information regarding (1) the date and time of the
next election; (2) the offices on the ballot; (3) opportunities to register to vote and the deadline
for registering before the election; (4) the availability of absentee balloting; (5) the availability of
trained translators at the polls on election day; and (6) the right of each voter to oral assistance in
their native language from either the County’s translators or a person of the voter’s choice
provided that person is not the voter’s employer, an agent of that employer, or officer or agent of
the voter’s union (42 U.S.C. § 1973aa-6); and (7) the name(s) and telephone number(s) of the
Coordinator(s) who can be contacted to receive more detailed information about the election. In
addition, the Coordinators shall ensure that at least once a day during this period taped
translations of the ballot made by either the New Mexico Office of the Secretary of State or the
Coordinator are broadcast on radio station KTDB, for the Navajo language, and radio station
KUNM, for the Keresan language, or other comparable stations.
H.

The Coordinators, under the supervision of the County Clerk shall conduct the

language assistance training in the Coordinator’s respective American Indian language for all
bilingual poll officials and other election-related personnel. This training shall be in addition to
any election training provided by the County. The training shall be held at least nine days before
any election and shall be held at an appropriate location within each Coordinator’s community.
16

Case 1:93-cv-01134-BRB-LFG Document 89 Filed 01/31/07 Page 17 of 28

At a minimum, the training must cover: (1) translating the entire ballot into the appropriate
language, (2) practicing the translation of the ballot with each translator, and (3) correcting any
errors in translation. In addition, the training must cover the procedures for identifying and
assisting voters who may need language assistance, instructions for casting a ballot on a voting
machine, and assisting voters who need to cast a provisional ballot. The translation of the ballot
by each translator shall be made according to the taped translations made by the Office of the
New Mexico Secretary of State, if such tapes are available. If standardized translations by the
Office of the Secretary of the State are not available or will not be available, the Coordinator
shall record a taped translation of the entire ballot, make the tape available to the translators, and
train them in this translation at the training session. If the ballot contains offices or ballot
proposition(s) specific to Cibola County for which the Office of the Secretary of State has not
provided a Navajo or Keresan language translation, the Coordinator shall record a taped
translation of the offices and/or proposition(s), make the tape available to the translators and
train them in this translation at the training session. The County shall notify tribal leaders from
Acoma, Laguna, and Ramah and attorneys from the Department of Justice of County-sponsored
training sessions at least seven days before the training and shall invite the participation of these
tribal leaders and Department of Justice attorneys.
I.

The Coordinator shall be available as needed at the Ramah Chapter House, in the

case of the Navajo Coordinator, and the appropriate tribal offices in the case of the Keresan
Coordinators, to assist in voter registration or to answer election-related questions when not
engaged in the other activities required under this NAEIP.
J.

Cibola County shall establish a separate travel budget for the Coordinators which

shall be sufficient to cover their travel expenses incurred in carrying out their duties, obligations
17

Case 1:93-cv-01134-BRB-LFG Document 89 Filed 01/31/07 Page 18 of 28

and responsibilities to effectively implement the NAEIP. Coordinators shall be reimbursed for
expenses incurred for travel incident to bona fide NAEIP business, including but not limited to
visits to Pueblos or Navajo Chapters and to sites for training programs.
K.

In each year with federal elections, the Coordinators shall prepare a Monthly

Coordinator Report, as set forth in Schedule 1, infra. The Report requires a detailed, paragraphby-paragraph recitation of the specific efforts made by the Coordinators to comply with each
provision of the NAEIP. For example, the report must detail the various community centers or
events attended by the Coordinator, the dates and times of those visits, detailed information
regarding any training session attended or given by the Coordinator, dates and times for any
election-related radio announcements made by a Coordinator, and/or any other information that
demonstrates the County’s compliance with the NAEIP. To the extent that any written materials
are distributed at any training session, those written materials should be included as part of the
report required herein. These reports must be provided to the United States within fourteen days
after the end of the month in which the reports were compiled.
II.

Intergovernmental Coordination
In administering the NAEIP, Cibola County and its Coordinators shall:
A.

Request and accept all training, materials, and services available from the State of

New Mexico in furtherance of the implementation of this NAEIP. The Coordinators shall attend
all election-related seminars or training sessions conducted by the New Mexico Office of the
Secretary of State, including the Coordinator and/or County Clerk meetings sponsored by the
,
New Mexico Native American Election Information Program. As set forth in I.B., supra the

18

Case 1:93-cv-01134-BRB-LFG Document 89 Filed 01/31/07 Page 19 of 28

County must compensate the Coordinators for their services and cover any reasonable expenses
that result from such training.
B.

Encourage contact and collaboration with other counties engaged in similar

language assistance programs.
C.

Invite assistance of tribal officials and by the Navajo Election Administration and

the All Indian Pueblo Council as needed to administer effectively the NAEIP.
D.

The parties recognize the separate powers and authority of the tribal governments,

and nothing in this NAEIP limits or infringes tribal powers or authority. Accordingly, where this
NAEIP requires Cibola County to perform acts in consultation and cooperation with tribal
governments, the County is obligated to undertake its obligations using all good faith efforts.
The County shall not be required to perform such acts if a tribal government refuses the County’s
efforts. In the event of any such refusal, the County shall promptly, and prior to the date for
performance of the act or event to be performed by the County, notify counsel for the United
States of the refusal or noncooperation.
III.

Satellite Election Offices
A.

Within ten days of the effective date of this NAEIP, the County shall contact

tribal officials at the Acoma and Laguna Pueblos and the Ramah Chapter to discuss the
possibility of establishing Satellite Election Offices convenient to the populations of the
respective communities.
B.

Each Satellite Election Office shall serve as the principal place for office hours

for the Coordinators, as a distribution point for the dissemination of election-related information,
and as a site for the performance of functions related to the election process that can be

19

Case 1:93-cv-01134-BRB-LFG Document 89 Filed 01/31/07 Page 20 of 28

performed at the County courthouse, including, but not limited to, registering to vote or updating
voter registration information, early voting, and the casting of absentee ballots.
C.

The Coordinators also may conduct the election and registration related functions

in Paragraph III.B., supra , by using their personal vehicles to visit members of their respective
communities, especially those members who may not have transportation or may not be capable
of traveling to the Satellite Election Office.
D.

Delivery of a voter registration application or performance of any other election-

related task at a Satellite Election Office or delivery of any election-related application to a
Coordinator shall be effective in terms of all time deadlines and requirements as if the
application had been delivered to, or the task performed at, the County courthouse.
E.

A supply of all forms and materials necessary to complete these functions shall be

maintained at each Satellite Election Office.
IV.

Translations

A.

The County shall ensure that taped versions of the Navajo and Keresan

language translations of the statewide offices and ballot propositions to appear on the
ballot provided by the Office of the New Mexico Secretary of State are delivered to the
Coordinator as soon as they are available. Taped versions of the translations and
playback equipment shall be made available to the translators during their translation
training and on election day at the Acoma, Laguna and Ramah polling places.
B.

The County shall provide each Coordinator with tape recording and

playback equipment and a sufficient supply of blank tapes for use in translator training.

20

Case 1:93-cv-01134-BRB-LFG Document 89 Filed 01/31/07 Page 21 of 28

C.

During elections, translations of the ballot into Navajo and Keresan shall

be provided according to the written and/or taped translations made by the Office of the
New Mexico Secretary of State, to the extent such translations are available.
V.

Election Day Procedures
A.

The County shall assign at least one trained translator to the polling places

at the Acoma and Laguna Pueblos and the Ramah Chapter for every voting machine.
B.

Polling place translators shall orally advise voters of the availability of

language assistance.
C.

Any voter who needs language assistance in Navajo or Keresan from

polling place translators shall be provided a full and complete translation of each office,
the party (when appropriate) of each candidate, all ballot propositions, and relevant
instructions on how to cast a ballot and the use of the voting machine (including, when
appropriate, instructions on write-in votes), and shall be read all candidates’ names for
each office. In addition, any voter who needs language assistance in Navajo or Keresan
will be provided instructions in their respective language regarding other voting
procedures as necessary, including, for example, instructions for casting a provisional
ballot.
VI.

Voter List Maintenance
At least 30 days before any registrants from the Ramah Chapter or the Acoma or

Laguna Pueblos, are sent notice of the potential cancellation of their registration in
accordance with Section 8(d)(2) of the National Voter Registration Act of 1993, 42
U.S.C. 1973gg-6(d)(2), a list of the names of these registrants shall be provided to the

21

Case 1:93-cv-01134-BRB-LFG Document 89 Filed 01/31/07 Page 22 of 28

appropriate Coordinator. If the Coordinator or tribal officials identify any registrant on
the list within the thirty day period who remains eligible to vote in Cibola County and
that registrant completes a new registration application or change of address application,
the registrant shall not be sent a notice of potential cancellation and shall be maintained
on the list of eligible voters. The NAEIP does not otherwise prohibit the proper
authorities from removing from the voter list those ineligible to vote by reason of a
change of address, conviction of a felony, or death, provided that the requirements of the
National Voter Registration Act of 1993, 42 U.S.C. §§ 1973gg, et seq., are met.
VII.

Adjustments to the NAEIP
Before making any adjustments to the NAEIP, the County shall endeavor to

safeguard future compliance with Sections 2 and 203 of the Voting Rights Act, 42 U.S.C.
§§ 1973 and 1973aa-1a, and the Fourteenth and Fifteenth Amendments to the
Constitution, shall consult in good faith with tribal officials from the Acoma and Laguna
Pueblos and the Ramah Chapter, and shall provide notice to counsel for the United States
of any proposed changes.

22

Case 1:93-cv-01134-BRB-LFG Document 89 Filed 01/31/07 Page 23 of 28

Schedule 1
Monthly Coordinator Report
Coordinator: _________________________________
Community: _________________________________
Date: _____________________
Presentations of election and registration information (see Para. I.E.):
Date

Location

Number of
Persons who
Attended

Topic(s) Covered

Case 1:93-cv-01134-BRB-LFG Document 89 Filed 01/31/07 Page 24 of 28

Radio announcements (see Para. I.G.):
Date

Times Aired

Topic(s) Covered

Case 1:93-cv-01134-BRB-LFG Document 89 Filed 01/31/07 Page 25 of 28

Date

Times Aired

Topic(s) Covered

3

Case 1:93-cv-01134-BRB-LFG Document 89 Filed 01/31/07 Page 26 of 28

Posting or distribution of election materials (see Para. I.F.):
Date

Location

Describe Materials Posted

State and County Training attended by Coordinator (see Para. I.D.):
Date

Location

Topics Covered in Meeting

4

Case 1:93-cv-01134-BRB-LFG Document 89 Filed 01/31/07 Page 27 of 28

Training of poll workers organized and conducted by Coordinator (see Para. I.H.):
Date

Location

PW*

O**

Description of training (attach
copies of all written material used
during training)

* Number of poll workers who attended training (attach sign-in sheet).
** Number of other persons, such as members of the public, who attended training (attach sign-in
sheet).

Number of voters registered by the Coordinator this month: __________

5

Case 1:93-cv-01134-BRB-LFG Document 89 Filed 01/31/07 Page 28 of 28

Other activities of the Coordinator, including voter registration drives:
Date

Location

Description of activity

6

Attachment 8

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UNITED STATES DISTRICT COURT

4

5
6

FOR THE NORTHERN DISTRICT OF CALIFORNIA

7

8
9
10·

Plaintiffs,

11

12

)
)
)
)
)
)
)
)
)
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)
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)
)

PETE WILSON, Governor of the
State ofCalifomia; STATE OF
CALIFORNIA,

vs.

13

14
15
16

17
18
19
20
21

22

UNITED STATES OF AMERICA;
JANET RENO, Attorney General;
TREVOR POTTER, Chainnan,
Federal Elections Commission;
FEDERAL ELECTIONS CQMMISSION,

Case No. C 95-20042 JW
Case No. C 94-20860 JW
(Related Action)
ORDER GRANTING
IN PART AND DENYING
IN PART PLAINTIFFS
VOTING RIGHTS
COALITION AND UNITED" ,,'
STATES' MOTION FOR
FURTHER RELIEF

)
--------------------------~)
Defendants.

.

1. INTRODUCTION
Plaintiffs Voting Rights Coalition, et aI. and the United States of America's

23

(collectively, "Plaintiffs") motion for further relief was heard by the Court on

24

Friday, October 20, 1995. 'Robert Rubin appeared on behalf of the Coalition and

25

Holly Wiseman appeared on behalf of the United States Department of Justice.

26

Cyrus Rickards appeared on behalf of Governor Pete Wilson and the named state

27

agencies. In addition, Ms. Darlene Marquez, Co-Chairperson of the Voting

..

(

(

1

Rights Coalition, appeared and testified on behalf of Plaintiffs and Mr. John

2

Mott-Smith, Chief of the Elections Division of the Office of the Secretary of State

3

of the State of California testified on behalf of the Governor and state agencies.

4

Based upon all pleadings filed to date, the testimony of the witnesses

5

presented at the hearing and upon the oral argument of counsel, the Court

6

GRANTS in part and DENIES in part Plaintiffs' motion, as discussed below.

n.

7

8
9

BACKGROUND

On March 2, 1995) the Court wanted PJaintiffs' motion for entry of a
permanent injunction, finding that the National Voter Registration Act

10

("NVRA"), 42 U.S.C. § 1973gg is constitutional. This finding was affirmed by

11

the Ninth Circuit Court of Appeals on July 24, 1995. Voting Rights Coalition, et

12

aI. v. Pete Wilson~ et aI., No. 95-15449 (9th Cir. July 24, 1995). The Court

13

bifurcated the issue of implementation of the NVRA and ord~red the State of

14

California and Governor Wilson to submit an implementation plan to the Court

15

for review.

16

On March 17, 1995, Defendants submitted a plan for implementation of the

17

NVRA. On May 4, 1995, the Court ordered the State to implement the plan

18

within forty-five (45) days and prohibited the removal of names from the voter

19

rolls "in a manner in~onsistent with the NVRA." The parties then met and

20

conferred and attempted to resolve as many of the implementation issues as

21

possible without the intervention of the Court. The parties were able to resolve

22

all of their differences, with the exception of the issues now presented to the

23

Court through Plaintiffs' motion for further relief.

24

Plaintiffs contend that the issues remaining for resolution are mandated by

25

the NVRA and must be implemented by Defendants. The Governor and the

26

named state agencies contend that they are properly implementing the

27
2

(

(

1

requirements which are set forth in the NVRA. Defendants contend that the

2

issues set forth in Plaintiffs' motion are simply not requirements which are

3

mandated by the NVRA nor are such issues necessary to carry out the intent of

4

Congress. These disputed issues are set forth and discussed separately below.

5

III. LEGAL STANDARDS'

6

The "starting point for interpreting a statute is' the language of the statute

7

itself. Absent a clearly expressed legislative intention to the contrary, that

8

language must ordinarily be regarded as

9

Com'n v. GTE

Sylvania~

conclusive~"

Cons.umer Prpduct Safety .

Inc., 100 S.Ct. 2051,2056 (1980). In order to determine

10'

whether such a "clearly expressed legislative intention" exists, the Court looks to

11

the legislative history of the statute. I.N.S. v. Cardoza Fonseca, 107 S.Ct. 1207,

12

1213, n. 12 (1987). "If a court, employing traditional tools of statutory

13

construction, ascertains that Congress had an intention on th.e precise question at

14

issue, that intention is the law and must be given effect." Id at 1221, quoting

15

U.S.A. Inc. v. Natural Resources Defense Council~ Inc., 467 U.S. 837, 843, n. 9"~' ",'

16

(1984). Applying these standards, the Court finds as follows.

17

IV. DISCUSSION

18

A. DMV Voter Registration

19

Pursuant to the NVRA, "[A]ny change of address form submitted in

20

accordance with State law for purposes of a State motor vehicle driver's license

21

shall serve as notification of change of address for voter registration with respect

22

to elections for Federal office for the registrant involved unless the registrant

23

states on the form that the change of address is not for voter registration

24

purposes." 42 U.S.C. § 1973gg.. 3(d). According to this section, a registrant's

25

change of address is presumed to be for the purposes of both the DMV and voter

26

registration, unless indicated otherwise by the applicant.

27
3

(

1

By this motion, Plaintiffs contend that the change of address fonn currently

2

used by the State of Californiareverses the presumption established by the

3

NVRA, so that an applicant's change of address is not presumed to be for both

4

purposes ofDMV and voter registration, unless the applicant indicates otherwise.

5

The fonns currently utilized by the California DMV facilities contains the

6

following options:

7

_

I have moved to a new county and wish to update my voter record ....

8

_

I have move,i, within the same county and wish to update my voter

9

record ....

11

M indicated by the Defendants in their implementation plan, if neither box
is checked, DMV will assume that the applicant does not wish to update his or her .

12

voter record. Plaintiffs contend that such an assumption violates the purpose and

13

intent of the NVRA. Defendants argue that it "is the infonn~d judgment of the

14

Secretary of State that the potential for error and hann is greater through a system

15

of automatic updating of registration records than with the present system."

16

(Declaration of John Mott-Smith, p. 2). However, Defendants also state that the

17

new DMV forms, which will be available within six (6) months, will include

18

separate box which indicates that the applicant does not want his or her voter

19

record updated. In the interim 6 month period, Defendants request that they be

20

permitted to use the present fonns and apply the presumption that if neither box is

21

checked, the applicant does not want his or her address updated for voting

22

purposes.

10'

23

a

Based upon the clear statutory language as contained in the NVRA, the

24

Court finds that the NVRA mandates that any change of address for DMV

25

purposes also be presumed to be for voter registration purposes, unless the

26

applicant "states on the fonn that the change of address is not for voter

27

4

(

1

registration purposes." Therefore, if the State of California chooses to utilize

2

forms which do not provide a space within which an applicant may indicate that

3

he or she does not wish an address change to apply for purposes of voter

4

registration, then the State must apply the presumption that all changes of

5

addresses apply for both DMV and voter registration purposes. Accordingly, the

6

Court will permit the DMV to use the present forms only during the interim

7

period between now and the time that the new forms are ready for use. If no box

8

is checked, the State must assume that the applicant wishes to update his or her

9

voter record.

10

B. Annual Residency Confirmation

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The NVRA prohibits the removal of the name of any person from the list of

12

official voters for failure to vote. 42 U.S.C. § 1973gg-6(b)(2). Through its

13

"Annual Residency Confirmation and Outreach Procedure"('~ARCOP"), the State

14

of California sends a postcard to voters inquiring whether such voter still lives at

15

the present address. If the card is returned as undeliverable AND the voter does

16

not vote in two (2) subsequent federal elections, then the voter's name is purged

17

from the list. Plaintiffs cont~nd that this procedure violates the NVRA because it

18

impermissibly drops registrants from the list for failure to vote. Defendants

19

contend that the method is permissible because the voter is not dropped simply

20

due to a failure to

21

voter.

-'.:,.'

22

vote~

but also because there is not a current address for such

The Court disagrees with Plaintiffs that the State's procedure, although not

23

directly based on a voter's failure to vote, results in a voter being dropped from

24

the list for his or her failure to vote. Since the State receives a card which states

25

that the card is undeliverable and then the addressee fails to vote in subsequent

26

elections, the Court finds that the State's current "Residency Confirmation and

27
5

.,

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1

Outreach Program" does not violate the NVRA. Accordingly, the Court DENIES

2

Plaintiffs' motion to discontinue such program.

3

C. California Elections Code Sections Preempted by the NVRA

4

Plaintiffs contend that 16 sections of the California Election Code are

5

preempted by the NVRA and should be enjoined by the Court. The State does not

6

argue that such sections are preempted, but requests that the Court refrain from

7

enjoining specific statutes until all implementation issues are resolved since the

8

State is operating under this Court's Order to comply with the NVRA and is not,

9

therefore, implementing any state election codes which conflict with the NVRA.

10

The Court considers, however, that all implementation issues are now

11

resolved as a result of this hearing. However, the Court is concerned that the

12

statutes which Plaintiffs contend are preempted by the NVRA may contain

13

subsections or subparts that are not preempted. Therefore,

14

the parties review all Elections Code Sections and submit a list to the Court

~e

Court orders that
.,~~.

15

within twenty (20) days of the date of this Order indicating which specific

16

Sections, including subsections and/or subparts, are preempted by the NVRA.

17

Until further order of the Court, all California Elections Code Sections which are

18

preempted by the NVRA may not be enforced by the State of California.

19

D. Compliance Reports

20

Plaintiffs finallYTequest that the Court establish a reasonable reporting

21

mechanism whereby it may monitor the State's compliance with the NVRA.

22

Plaintiffs suggest that the Court require the State to submit a 30-day status report

23

to be followed by quarterly reports as to its compliance with the implementation

24

issues. Defendants argue that such a requirement is burdensome, expensive and

25

unnecessary in light of the requirements of the NVRA.

26

At the hearing, the parties agreed to meet and confer and that the

27
6

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1

Department of Justice would submit a list to the Court indicating exactly what

2

type(s) of report it would like from the State to ensure compliance with the

3

NVRA. The State then agreed to respond to the Department's list and the matter

4

would be deemed submitted to the Court upon the State's response. The Court

5

therefore DEFERS Plaintiffs' request for compliance reports by the State until the

6

receipt of the State's brief. The Department of Justice shall submit a report

7

within twenty (20) days of the date of this Order. The State shall submit a

8

response to such report within five (5) days of the submission of the Department's

9

report. The matter will then be deemed submitted on the papers. In the interim,

10

the Court retains jurisdiction over any and all implementation issues in this

11

action. If Plaintiffs discover that Defendants are not complying with the

12

provisions of the NVRA, or of this Order, they may request emergency relief by

13

filing an ex parte application with the Court requesting appropriate relief.

14

Therefore; the Court DEFERS Plaintiffs' request that the State submit compliance

15

reports on a quarterly basis.

.'''"!.,r

16

E. Equitable Relief

17

Finally, Plaintiffs requ~st that the Court enter an Order which provides.

18

equitable remedial relief on behalf of those persons who entered social service

19

agencies between January 1, 1995 until the effective date of the Court's Order of

20

Implementation filed on May 4, 1995 and were deprived of the right to register to

21

vote at the agency due to the Governor's failure to timely implement the NVRA.

22
23

Plaintiffs' request does not include any Department of Motor Vehicles ("DMV")

24

such agency. Plaintiffs contend that the Court should order that the Defendants

25
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send each and every person who contacted a social service agency during the

since the parties entered a separate agreement regarding a remedial remedy for

relevant time period a voter registration application.

7

1

The Defendants argue that such a request is extremely costly and

2

unwarranted given the fact that many of the people who contacted a social service

3

agency during the relevant time period are people who continue to have contact

4

with the agency and have since been afforded an opportunity to register to vote at

5

the agency. Therefore, Defendants assert that they should be required only to

6

contact those people who did not and will not return to the agency and inform

7

such people that they may call and request that a voter registration application be

8

sent to them.

9

Based upon all pleadings filed to date, as well as on the oral argument of

10

counsel, the Court orders that the Defendants send each and every person who

11

visited a social service agency between January 1, 1995 through June 10, 1995

12

AND who will not return to a social service agency again within the next six (6)

13

months a voter registration application. Such application mu~t be sent within

14

sixty (60) days of the date of this Order. Defendants shall also file with the Court

15

and serve upon Plaintiffs a copy of the list of applicants to whom a voter

16

registration application is being sent as soon as such list is available to

17

Defendants but no later than forty-five (45) days from the date of this Order. .

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V. CONCLUSION

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19

Based upon ¢.e foregoing, the Court GRANTS Plaintiffs' motion for

20

further relief as to the DMV Voter Registration change of address forms, ·the

21

California Elections Code Sections and remedial equitable relief as set forth

22

herein and DENIES and/or DEFERS Plaintiffs' motion for further relief as to all

23

other issues discussed herein.

24

95102501.civ

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IT IS SO ORDERED.

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DATED: UC;tvV1 "30I 111 >
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This is to certify that copies of this order have been mailed to:
Robert Rubin
LAWYERS' COMJ\1ITTEE FOR CIVIL RIGHTS
OF WITH THE SAN FRANCISCO BAY AREA
301 Mission Street, Suite 400
San Francisco, CA 94105
Mark D. Rosenbaum
ACLU FOUNDATION OF SOUTHERN
CALIFORNIA
1616 Beverly Drive
Los Angeles, CA 90026
Alan L. Schlosser
ACLU FOUNDATION OF NORTHERN
CALIFORNIA
1663 Mission Street, Suite 460
San Francisco, CA 94103
Kathryn K. Imahara
ASIAN PACIFIC AMERICAN LEGAL
CENTER OF SOUTHERN CALIFORNIA
1010 South Flower Street, Suite 302
Los Angeles, CA 90015

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William R. Tamayo
ASIAN LAW CAUCUS, INC.
468 Bush Street, Third Floor
San Francisco, CA 94108

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Joaquin G . Avila
Voting Rights Attorney
Parktown Office Building
1774 Clear Lake Avenue
Milpitas, CA 95035
Harry Bremond
WILSON, SONSINI, GOODRICH & ROSATI
650 Page Mill Road
Palo Alto, CA 94304-1050

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David H. Raizman
WESTERN LAW CENTER FOR
DISABILITY RIGHTS
1441 W. Olympic Blvd.
Los Angeles, CA 90015

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Elaine B. Feingold
DISABll-ITY RIGHTS AND EDUCATION
DEFENSE FUND, INC.
2212 Sixth Street
Berkeley, CA 94710
Cyrus J. Rickards
OFFICE OF WITH THE ATTORNEY GENERAL
1515 K Street
P.O. Box 944255
Sacramento, CA 94244-2550
Pete Wilson
GOVERNOR OF WITH THE STATE OF CALITORNlA
1st Floor, State Capitol
Sacramento, CA 95814
....

Bill Jones
SECRETARY OF STATE
1230 J Street, Suite 209
Sacramento, CA 95814
.~.

Brenda Premo
DEPARTMENT OF REHABll-ITATION
830 K Street, Room 307
Sacramento, CA 94244
Frank Zolin
DEPARTMENT OF MOTOR VEmCLES
2415 1st Avenue
Sacramento, CA 95818
Eloise Anderson
DEPARTMENT OF SOCIAL SERVICES
744 P Street
Sacramento, CA 95814

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Holly Lee Wiseman
U.S. DEPARTMENT OF mSTICE
Civil Rights Division, Voting Section
P.O. Box 66128
.
Washington, D.C. 20035-6128
Lawrence E. Noble
FEDERAL ELECTIONS COMMISSION
999 E Street, N.W.
Washington, D.C. 20463

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Michael J. Yamaguchi
UNITED STATES ATTORNEY .
450 Golden Gate Avenue
San Francisco, CA 94102

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DATED:

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CLERK OF COURT

BY:.~.
Ronald L. Davis
Deputy Clerk

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JANET RENO, Attorney General
for the United States
DEVAL L. PATRICK, Asst. Atty General
ELISABETH JOHNSON
BARRY H. WEINBERG
HOLLY LEE WISEMAN
Attorneys, Voting Section
Civil Rights Division
United States Department of Justice
P.O. Box 66128
Washington, DC 20035-6128
Telephone: [phone]

Local counsel:
MICHAEL J. YAMAGUCHI
United States Attorney
No. Dist. of California
MARY BETH UITTI
Chief of Civil Division
WILLIAM MURPHY
South First Street
Suite 371
San Jose, CA 95113
(408) 291-6~/GIN

F I L I:

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Attorneys for UNITED STATES
OF AMERICA and JANET RENO

L

NOV 13 1995
RICHAR

UNITED STATES DISTRICT COUR'JJvOR~~~~U.S.~/~T:IEKING
FOR 'I'HE NORTHERN DISTRICT OF CALIFORNIlJ!fJtICTdnXBMRT
SAN JOSE DIVISION
JOSE
ORN/A

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Plaintiffs,

CASE NO. C95-20042 JW
CASE NO. C94-20860 JW
(Consolidated)

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v.

JOINT STIPULATION

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PETE WILSON, et al.,

UNITED STATES OF AMERICA,
et al.,

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Defendants,
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________________________________1

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JOINT STIPULATION TO SUBSTITUTE LANGUAGE
18
Corne now all parties to the above-styled causes, by and
19
through their attorneys, and stipulate as follows:
20
That the following language shall be substituted for
21
paragraph 2 on page 5 of this Court's Order filed November 2,
22
1995 (which paragraph begins: "The NVRA prohibits the removal of
23
the name of any person from the list of official voters for
24
failure to vote."):
25
The NVRA prohibits the removal of the name of any
26
person from the list of official voters for failure to
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28

Joint

St~pulation

1

vote. 42 U.S.C. Sec. 1973gg-6(b) (2).

2

and Voting Rights Coalition contend that the state's

3

proposed list cleaning procedure ("RCOP," for Residency

4

Confirmation Outreach Procedure) violates this section

5

of the Act because the process begins by sending postal

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inquiries to non-voters.

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The United States

As outlined in the state's implementation plan
(Chapter 5, pp. 5-12), RCOP would function as follows:
Approximately 6 months prior to the primary election in

10

even-numbered years and approximately six months after

11

the general election in odd-numbered years, county

12

registrars would send out a nonforwardable residency

13

confirmation postcard to those voters who had not voted

14

within the past six months (in the case of pre-primary

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RCOP) or in the last general election (in the case of

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post general election RCOP) .

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If the postcard were returned as undeliverable

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without forwarding address information, a forwardable

19

confirmation notice would be sent out pursuant to 42

20

U.S.C. 1973"gg-6 (d) (2) of the NVRA.

21

not returned and the voter did not vote in the next two

22

federal elections, the voter would be removed from the

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registration list.

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Joint Stipulation

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If this notice were

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Respectfully submitted,

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DANIEL E. LUNGREN
Attorney General

Dated: November 9, 1995

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D puty A torney General
Attorneys for Governor
Pete Wilson, et al

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Lawyer. ' Committee for
Civil Rights of the
San Francisco Bay Area
'Attorneys for Voting Rights
Coalition

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General·
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Attorneys, Voting Section
Civil Rights Division
U.S. Department of Justice
Attorneys for United States
and Janet Reno

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Joint Stipulation

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Attachment 9

IN THE UNITED STATES DISTRlCT COURT
FOR THE SOUTHERN DISTRlCT OF INDIANA
INDIANAPOLIS DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
STATE OF INDIANA; and KRIST!
ROBERTSON and J. BRADLEY KING,
Co-Directors ofthe Indiana Election
Division, in their official capacity,
Defendants.

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ZUG5 JUN 27

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Civil Action No. ---------------

)I :I,-cv-l 0 00 -RLY -TAB
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CONSENT DECREE AND ORDER
The United States of America filed this action pursuant to Section 8 of the National Voter
Registration Act of 1993 ("NVRA"), 42 U.S.C. § 1973gg-6, to enforce the State of Indiana's
obligations concerning voter registration list maintenance in elections for Federal offices. The
Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and l345 and 42 U.S.C. §
1973gg-9.
The State of Indiana is covered by the requirements of Section 8 of the NYRA with
respect to elections for Federal office. See 42 U.S.C. §§ 1973gg-1(4), 1973gg-2(b). Section
8(a)(4) of the NVRA requires that "[i]n the administration of voter registration for elections for
Federal office, each State shall , .. conduct a general program that makes a reasonable effort to
remove the names of ineligible voters from the official lists of eligible voters by reason of - (A)
the death of the registrant; or (B) a change in the residence of the registrant ... ," 42 U.S.C. §
1973gg-6(a)(4). Section 8 allows for the immediate removal of a voter from a registration list
1

,p

07

when the voter has died, been convicted of a disqualifying crime, or when the voter requests to
be removed. See 42 U.S.c. § 1973gg-6(c)(2)(B). Section 8 of the NVRA sets forth specific
notice procedures and time frames for removing a voter when the State or local county registrar
obtains information that a voter no longer lives at his/her registration address of record (i.e.,
when the State receives undeliverable election mail or returned jury notices). See 42 U.S.C. §§
1973gg-6(b)-(f). The State must comply with these notice provisions and time lines before
removing such voters from its registration list.
Notwithstanding these list maintenance obligations, Indiana has failed to conduct an
adequate general program of list maintenance that makes a reasonable effort to identify and
remove the names of ineligible voters from the voter registration list in elections for Federal
office, to remove such ineligible voters, and to engage in oversight actions sufficient to ensure
that local election jurisdictions identify and remove such ineligible voters. As a result, the State
has violated the registration list maintenance obligations under Section 8 of the NVRA, 42
U.S.c. § 1973gg-6.
The United States and Defendants, through their respective counsel, have conferred and
agree that this action should be settled without the delay and expense of litigation. The parties
negotiated in good faith and hereby agree to the entry of this Consent Decree ("Decree") as an
appropriate resolution of the claims alleged in the United States' complaint. The parties agree to
waive a hearing and, thus, stipulate that each provision of this Decree is appropriate and
necessary.
Accordingly, it is hereby ORDERED, ADJUDGED, and DECREED that:
1.

Deceased Voters and Duplicate Registrations. On or before June 30, 2006, the
2

Indiana Election Division shall distribute notices regarding the more than 29,000 registrants who
may be deceased and 290,000 registrations which may be duplicates, which were identified by
the State when it implemented the new statewide, computerized database under the Help
America Vote Act of2002 ("HAVA"), 42 U.S.c. § lS483(a), to each county voter registration
office for appropriate action. The State shall require each county voter registration office to
make a determination, consistent with all notice requirements mandated by law, on these
potentially invalid registrations by August 2, 2006, including the removal from the list of eligible
voters of any voter registration that has been positively identified as being from a deceased voter
or as a duplicate registration. The State shall provide a report to counsel for the United States on
or before August 16, 2006, on a county by county basis, regarding the total number of ineligible
voters identified as duplicate or deceased in each county, the total number of voters removed in
each county, the total number of voters placed on the inactive list in each county, and the number
of dead or duplicate registrations where the county took no action.

2.

Statewide Mailing. On or before June 30,2006, the Co-Directors shall take

reasonable efforts to identify voters who are ineligible to vote by conducting a statewide mailing
of election-related materials, via first class non-forwardable mail, to all registered voters. The
program must comply with the requirements of Section 8(b) of the NVRA, 42 U.S.C. § 1973gg-6
and Indiana Code § 3-7-38.2-16. To the extent that any mailing is returned as undeliverable with
no forwarding address or a forwarding address outside the registrar's jurisdiction, the State shall
send a follow-up notice letter by forwardablemail to the voter and a postage prepaid address
verification card, as set forth in 42 U.S.C. § 1973gg-6(c)-(d) and Ind. Code § 3-7-38.2-2,
whereby the voter can confirm his or her address. Where the mailing is returned as undeliverable

3

with a forwarding address inside the registrar's jurisdiction, the State shall ensure that voter
records are updated in accordance with Section 8(f) of the NVRA. 42 U.S.C. § 1973gg-6(f). The
State shall ensure that each county processes returned and undeliverable address verification
cards in accordance with State and Federal law. This program must be completed on or before
August 10, 2006.

3.

Report on Statewide Mailing. On or before August 25, 2006, the State shall

provide counsel for the United States with a report that identifies, on a county by county basis,
the number of voters who were identified as potentially ineligible through use of the measures set
forth in Paragraph 2, supra, the number of voters actually removed from the registration database
and the total number of voters placed on inactive status after confirmation mailings. In addition,
the State will provide the total number of active and inactive voters in each county in the State as
of August 25, 2006.

4.

Written Plan for Compliance. During 2007, the Co-Directors shall develop a

written plan for identifying and deleting ineligible voters on the State's computerized database,
as required in Section 303(a)(2) ofHAVA, 42 U.S.c. § 15483(a)(2). In addition, the plan shall
set forth the State's procedure for tracking whether each county voter registration office is
complying with the list maintenance requirements of Section 8 of the NVRA, including whether
the registration office is identifying and removing voters who have died, been convicted of a
disqualifying crime, or who have moved. This plan must include a means of tracking whether
county voter registration offices are properly: (1) acting on State-provided information obtained
from the statewide voter registration database regarding voters who may have become ineligible
(such as potential deaths or duplicates); (2) researching and acting on other specific information
4

provided in writing by voters that calls into question those voters' continued eligibility to vote at
their currently registered addresses, such as jury declinations or county or state tax filings which
claim non-resident status; (3) canvassing their registered voter lists to locate voters who have
died or moved; (4) using canvass information to update voter registration rolls for voters who
have moved within the election jurisdiction consistent with Section 8(f) of the NVRA; (S)
sending a forwardable confirmation notice under Section 8(d) of the NVRA to voters who may
have moved outside of an election jurisdiction or for whom there is no forwarding information;
(6) placing voters who do not respond to the confirmation notice into an inactive status that will
indicate the date they were placed in such status; (7) removing inactive voters who do not vote or
appear to vote during the two Federal general election cycles following the date the confirmation
notice is sent or who indicate in writing that they have moved outside of the jurisdiction; (8)
ensuring that eligible voters on inactive status remain on the voter registration list during the
period of the two Federal general election cycles following the date the confirmation notice is
sent, and that they can cast valid ballots on election day during that period, upon proper assertion
of eligibility, if required under state law; and (9) returning eligible inactive voters to active status
if they properly reactivate their registration. Where this tracking information indicates that a
county voter registration office is not conducting list maintenance activity in accordance with the
NVRA and State law, the Co-Directors shall contact the county voter registration office to ensure
compliance with the law and, if necessary, take appropriate action against the county, including
litigation, ifit fails to comply with Federal and State law.
S.

Training. The Co-Directors, in concert with regularly scheduled training

programs conducted by the Indiana Secretary of State, shall develop training manuals and
S

conduct regular training of local election officials at least once each year on the proper conduct
oflist maintenance under Section 8 ofthe NVRA and State law.

6.

Copies of Materials to Counsel for the United States. The Secretary and/or the

Co-Directors shall provide copies ofthe following to counsel for the United States for review
and comment prior to dissemination or implementation: (1) the written plan for tracking county
compliance with the NVRA referred to in Paragraph 4, supra; and (2) the written training
materials discussed in Paragraph 5, supra. Both parties agree to confer during development of
the materials discussed in this paragraph to ensure potential disagreements are minimized.

7.

Annual Reporting Requirements. On or about January 31 of each year, the

Secretary and/or the Co-Directors shall provide a report to counsel for the United States that sets
forth the total number of active and inactive voters in each county in the State, as well as the
number of registrants removed by each county in the previous year.

8.

Retention ofRecords. The State shall retain voter registration and list

maintenance records related to the terms of this agreement for the time periods provided in 42
U.S.C. §§ 1973gg-6(I) and 1974. This shall include training materials and other documents
related to the State's and counties' list maintenance obligations under the NVRA and State law.
The State shall make these records available to counsel for the United States upon request.

9.

Costs. Each party shall bear its own costs with regard to actions taken by the

parties up to and including the entry ofthis decree.

10.

Binding Nature ofDecree. This Decree is binding on the Co-Directors, their

successors in office, employees, representatives, delegates, agents, assigns, and all persons acting
on their behalf.

6

11.

Termination Date. This Agreement shall remain in effect until June 30, 2009.

Agreed to:
For the United States of America:

For the Defendants:

APPROVED as to Form and Legality:
Office of the Attorne General

SUSAN BROOKS
United S~ates Attorney

CAR R
A mey General of Indiana
Ina. Bar No.
Indiana Government Center South
302 W. Washington Street
Indianapolis, Indiana
Phone: [phone]
Fax: [phone]

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/f27...'l%

9zM..

Ind. Bar No.
:s:5
Assistant United. States Attorney
10 West Market Street Suite 2100
.. Indianapolis, Indiana-46204 ._..........
Phone: [phone]
Fax: [phone]

KRISTI ROBERTSON
Co-Director, Indiana Election Division
302 W. Washington, Room E204
Indianapolis, Indiana 46204
Phone: [phone]
Fax: [phone]

'7k c::u~ ~.
JOHN TANNER
ROBERT POPPER
M. ERIC EVERSOLE
Ind. Bar No. 21190-49
Trial Attorneys
Civil Rights Division
U.S. Department of Justice
Room 7254-NWB
·950 Pennsylvania Avenue, NW
Washington, DC 20530

~~onDi~on
302 W. Washington, Room E204
Indianapolis, Indiana 46204
Phone: [phone]
Fax: [phone]

Te~phon~: 2QZ;.,?O~.;0566

Facsimile: 202-307-3961

7

SO ORDERED this _ _ day of _ _ _ _ _ _ _ , 2006

United States District Judge

8

Attachment 10

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PHILADELPHIA DIVISION
THE UNITED STATES OF AMERICA,
Plaintiff,
v.

THE CITY OF PHILADELPHIA;
MARGARET TARTAGLIONE, EDGAR A.
HOWARD, JOSEPH J. DUDA, in their
official capacities as Philadelphia City
Commissioners; and THE PHILADELPHIA
COUNTY BOARD OF ELECTIONS,
Defendants.

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CIVIL ACTION NO. 2:06cv4592

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AMENDED COMPLAINT

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Plaintiff, the United States of America, alleges:
1.

The Attorney General of the United States hereby files this action to enforce the
provisions of:
a)

Sections 2, 3(a), 4(e), 203, and 208 of the Voting Rights Act of 1965, as amended,
42 U.S.C. §§ 1973, 1973a(a), 1973b(e), 1973aa-la, and 1973aa-6, with respect to
the conduct of elections in the City of Philadelphia;

b)

Sections 301(a)(3), (4) and 302(b) ofthe Help America Vote Act of2002
("HAVA"), 42 U.S.c. §§ 15481(a)(3), (4) and 15482(b), with respect to the
conduct of elections for Federal office in the City of Philadelphia; and

c)

Section 8(a)(4) of the National Voter Registration Act of 1993 ("NYRA"), 42
US.C. § 1973gg-6, with respect to the conduct of elections for Federal office in
the City of Philadelphia.

-2JURISDICTION AND VENUE
2.

This Court has jurisdiction over this action pursuant to 28 U.S.c. §§ 1331 and 1345,42
U.S.c. § 1973j(f), and 42 U.S.C. § 15511. The claim pursuant to Section 203 of the
Voting Rights Act requires that the action be heard and determined by a court of three
judges in accordance with the provisions of 42 U.S.C. § 1973aa-2 and 28 U.S.C. § 2284.

3.

Venue for this action is proper in the United States District Court for the Eastern District
of Pennsylvania, pursuant to 28 U.S.c. §§ 118 and 1391(b).
PARTIES

4.

Plaintiff United States of America seeks declaratory and injunctive relief pursuant to
Sections 12(d) and 204 of the Voting Rights Act, 42 U.S.C. §§ 1973j(d) and 1973aa-2,
which authorize the Attorney General to bring this suit to enforce the Voting Rights Act;
Section 401 ofHAVA, 42 U.S.c. § 15511, which authorizes the Attorney General to
bring this suit to enforce HAVA; Section 11(a) ofthe NVRA, 42 U.S.C. § 1973gg-9(a)
which authorizes the Attorney General to bring this suit to enforce the NVRA; and the
Declaratory Judgment Act, 28 U.S.c. §§ 2201 and 2202.

5.

Defendant City of Philadelphia ("City" or "Philadelphia") is a political and geographical
subdivision ofthe Commonwealth of Pennsylvania, and is subject to the laws of the
Commonwealth, the Voting Rights Act, HAVA, and the NVRA, as discussed below.

6.

Defendants Philadelphia City Commissioners are vested with the statutory powers,
duties, and responsibilities concerning the registration of voters and the conduct of
Federal, state and local elections in the City. PHILADELPHIA CODE § 2-112. The

-3-

Philadelphia City Commissioners include Joseph J. Duda, Edgar A. Howard and
Chairwoman Margaret M. Tartaglione, who are sued in their official capacities.
7.

Defendant Philadelphia County Board of Elections consists of the Philadelphia City
Commissioners when they serve in their capacity as the Philadelphia County Board of
Elections. The Philadelphia County Board of Elections is generally responsible for the
conduct of elections in Philadelphia and the training of election officers.
FIRST CAUSE OF ACTION

8.

Plaintiff restates and incorporates herein the allegations in Paragraphs 1 through 7 of this
Complaint.

9.

According to the 2000 Census, the City of Philadelphia had a total population of
1,517,550 persons, of whom 128,928 (8.5%) were Hispanic. By 2004, the Census
estimates that Philadelphia's total population decreased by 103,305 (6.8%) to 1,414,245.
The Hispanic community, however, grew by an estimated 11,546 (9%) to a total of
140,474, or approximately ten percent of Philadelphia's population.

10.

The 2000 Census further indicates that the total citizen voting age popUlation of
Philadelphia was 1,071,785, of whom 70,980 (6.6%) were Hispanic. Among
Philadelphia's Hispanic citizens of voting age, 25,660 (36.2%) are limited English
proficient.

1l.

The City of Philadelphia is subject to the requirements of Section 203 of the Voting
Rights Act ("Section 203") for the Spanish language, pursuant to the designation by the
Director of the Census; this detennination ofthe Census Bureau is final and
non-reviewable. 42 US.c. § 1973aa-l a(b )(2), (b)( 4). The City has been continuously

- 4-

subject to the bilingual election requirements of Section 203 since September 18, 1992.
See 57 Fed. Reg. 43,213 (Sept. 18, 1992) and 67 Fed. Reg. 48,871 (July 26,2002).
12.

The Department of Justice has directly notified Philadelphia officials regarding the
bilingual election requirements of the Voting Rights Act, including in letters dated July
26, 2002, and August 31, 2004.

13.

Because the City of Philadelphia is subject to the requirements of Section 203, "any
registration or voting notice, forms, instructions, assistance, or other materials or
information relating to the electoral process, including ballots" that Defendants provide
in English must also be furnished in Spanish. 42 U.S.C. § 1973aa-1a.

14.

In conducting elections in Philadelphia, Defendants failed to provide in an effective
manner election-related materials, information and/or assistance in Spanish to limited
English proficient Hispanic voters as required by Section 203, including, but not limited
to, the following:
a.

Failing to recruit, appoint, train, and maintain an adequate pool of bilingual poll
workers capable of providing the same election information and assistance in
Spanish to limited English proficient Hispanic voters that it provides in English;

b.

Failing to provide the same election-related materials and information in Spanish
that it provides in English, such as information publicizing elections, or to provide
an effective alternative method of disseminating such information so that limited
English proficient Hispanic voters are assured an effective opportunity to be
informed about election-related activities; and

c.

Failing to translate accurately into Spanish election materials and instructions.

-5-

15.

As a result of Defendants' practices, limited English proficient Hispanic voters have had
difficulty understanding the election process and have been prevented from voting.

16.

Defendants' failure to provide Spanish language materials, information and assistance, as
described above, constitutes a violation of Section 203.

17.

Unless enjoined by this Court, Defendants will continue to violate Section 203 by failing
to provide limited English proficient Hispanic voters of the City of Philadelphia with the
Spanish language materials, information, and assistance necessary for their effective
participation in the political process.
SECOND CAUSE OF ACTION

18.

Plaintiff restates and incorporates herein the allegations in Paragraphs 1 through 17 of
this Complaint.

19.

Section 4(e) of the Voting Rights Act ("Section 4(e)") prohibits Defendants from
"conditioning the right to vote ... on the ability to read, write, understand, or interpret"
the English language by persons educated in American-flag schools, including the
Commonwealth of Puerto Rico, where the predominant classroom language is Spanish.
See 42 U.S.C. § 1973b(e)(1).

20.

The Puerto Rico Department of Education has promulgated regulations that specify that
the language of classroom instruction will be Spanish, the vernacular of the
Commonwealth of Puerto Rico.

21.

According to the 2000 Census, 91,527 (71%) of Philadelphia's Hispanic population is of
Puerto Rican descent. Almost half of that Puerto Rican population, 40,363 (44%), was
born in Puerto Rico. Based on information and belief, a significant percentage of these

- 6persons were educated in American-flag schools in the Commonwealth of Puerto Rico
where the predominant classroom language was Spanish.
22.

For the November 2004 general election, the City of Philadelphia established 250 polling
places, which according to the 2000 Census, were located in Census tracts with 5 percent
or more persons of Puerto Rican descent. The City of Philadelphia failed to provide a
bilingual interpreter or Spanish-speaking poll worker in at least 100 ofthe 250 polling
places during the November 2004 election.

23.

F or the November 2005 general election, the City of Philadelphia established 250 polling
places, which according to the 2000 Census, were located in Census tracts with 5 percent
or more persons of Puerto Rican descent. The City of Philadelphia failed to provide a
bilingual interpreter or-Spanish-speaking poll worker in at least 107 of the 250 polling
places during the 2005 general election.

24.

The City is aware of its obligation to ensure that its Puerto Rican citizens, who were
educated in American-flag schools, receive bilingual language assistance. In Arroyo v.
Tucker, 372 F. Supp. 764 (E.D. Pa. 1974), a United States district court considered a
Section 4(e) claim raised by Philadelphia voters who were born in or extracted from
Puerto Rico. In Arroyo, the Court ordered the City to prepare all written election
materials in both English and Spanish, and to provide bilingual personnel at all polling
places falling within a census tract containing five percent or more persons of Puerto
Rican birth or parentage pursuant to the most recent census report. Arroyo, 372 F. Supp.
at 768.

-725.

Notwithstanding these obligations, Defendants have continuously failed to provide
adequate bilingual assistance and accurately translated bilingual election materials and
information to citizens of Puerto Rican descent educated in American-flag schools in
Puerto Rico in violation of Section 4(e).

26.

Unless enjoined by this Court, Defendants will continue to violate Section 4(e) by failing
to provide election materials, information, and assistance to limited English proficient
persons educated in American Flag schools in the Commonwealth of Puerto Rico.
THIRD CAUSE OF ACTION

27.

Plaintiff restates and incorporates herein the allegations in Paragraphs 1 through 26 of
this Complaint.

28. - Section 208 of the Voting -Rights Act ("Section 208-") provides that "[a]nyvoter who
requires assistance to vote byreason of blindness, disability, or inability to read or write
may be given assistance by a person of the voter's choice, other than the voter's
employer or agent of that employer or officer or agent of the voter's union." 42 U.S.c.
§1973aa-6.
29.

In violation of Section 208, Defendants and their employees and agents failed to allow
voters their assistors of choice by:
a)

Prohibiting family members, friends, and other assistors of choice from providing
assistance to limited English proficient Hispanic voters;

b)

Requiring limited English proficient Hispanic voters to be assisted by poll
workers who either did not speak Spanish or did not speak Spanis,h fluently; and

-8c)

Failing to instmct poll workers accurately and adequately on their duty to permit
eligible voters to receive assistance from any person of their choice, other than
their employers or union officials.

30.

Defendants' failure to allow eligible voters to receive necessary assistance from any
person of their choice, other than their employers or union officials, as described herein,
is a violation of Section 208.

31.

Unless enjoined by this Court, Defendants will continue to violate Section 208 by failing
to provide eligible Philadelphia voters with the opportunity to receive assistance from
persons of the voters' choice and by limiting the scope of assistance voters can receive
from their chosen assistors.

FOURTH CAUSE OF ACTION
32.

Plaintiff restates and incorporates herein the allegations in Paragraphs 1 through 31 of
this Complaint.

33.

Section 2 ofthe Voting Rights Act ("Section 2") prohibits Defendants from applying or
imposing any "voting qualification or prerequisite to voting or standard, practice, or
procedure" which results in a denial or abridgment of the right to vote on account of race
or color, or membership in a language minority group, including citizens of Spanish
heritage. 42 U.S.c. § 1973.

34.

In conducting elections in Philadelphia, Defendants have abridged the right of Hispanic
citizens to vote, by:
a.

Treating Hispanic and limited English proficient Hispanic voters disrespectfully;

-9b.

Refusing to permit limited English proficient Hispanic voters to be assisted by an
assistor of their choice;

c.

Failing to prevent poll workers, poll watchers, and other persons inside the
polling places from improperly influencing, coercing or changing, or attempting
to improperly influence, coerce or change the ballot choices of Hispanic voters;

d.

Failing to make available bilingual personnel to provide effective assistance and
information required by limited English proficient Hispanic voters;

e.

Failing to provide provisional ballots to limited English proficient Hispanic
voters; and

f.

35.

Failing to prevent persons from blocking entrances to polling places.

Under the totality of the circumstances that exist in Philadelphia, Defendants' conduct
has had the effect of denying Hispanic voters an equal opportunity to participate in the
political process and to elect candidates of their choice on an equal basis with other
citizens in violation of Section 2.

36.

Unless enjoined by this Court, Defendants will continue to violate Section 2 by enforcing
standards, practices, or procedures that deny Hispanic voters the opportunity to
participate effectively in the political process on an equal basis with other members of the
electorate.

- 10 FIFTH CAUSE OF ACTION
37.

Plaintiff restates and incorporates herein the allegations in Paragraphs 1 through 36 of
this Complaint.

38.

On October 29, 2002, HAVA, 42 U.S.c. §§ 15301-15545, was signed into law by the
President. Title III ofHAVA (Sections 301 to 303) includes certain "uniform and
nondiscriminatory election technology and administration requirements" which apply in
elections for Federal office. 42 U.S.c. §§ 15481-15483.

39.

The City conducted an election for Federal office on May 16,2006, and November 7,
2006.

40.

The City is next scheduled to conduct a Federal election in March 2008.

41.

Each state and jurisdiction was required to comply with Section 301 of HAV A for
Federal office by January 1,2006. 42 U.S.C. § 15481.

42.

Among other things, Section 301 of HA VA requires that voting systems used in an
election for Federal office must provide for accessibility for voters with disabilities in a
manner that provides the same opportunity for access and participation (including
privacy and independence) as for other voters, 42 U.S.c. § 15481(a)(3) ("Section
30 1(a)(3)").

43.

The City of Philadelphia utilizes a voting system which requires poll workers to connect
an audio function in order for the voting system to be compliant with Section 301(a)(3) of
HAV A. During the May 16,2006 and November 7,2006 elections, poll workers were
unable or unwilling to attach the audio function or informed blind and disabled voters
that the polling place did not have a disability accessible machine. In addition, poll

- 11 -

workers discouraged and pressured blind and disabled voters against using the disability
accessible machine.
44.

Without the audio function being made available to voters with disabilities such voters
were not able to access the voting systems or vote privately and independently, as
required by Sections 301(a)(3) ofHAVA.

45.

Unless enjoined by this Court, Defendants will continue to violate Section 301(a)(3) of
HAV A by failing to provide voting systems which are accessible to persons with
disabilities and provide alternative language accessibility.
SIXTH CAUSE OF ACTION

46.

Plaintiff restates and incorporates herein the allegations in Paragraphs 1 through 45 of
this Complaint.

47.

Among other things, Section 30 1(a)(4) ofHAVA requires Defendants to "provide
alternative language accessibility pursuant to the requirements of section 203 of the
Voting Rights Act of 1965," 42 US.c. § 15481 (a) (4) ("Section 301 (a)(4)").

48.

Section 301 (a)(4) requires, among other things, that any signage or information posted to
comply with HAVA comply as well with the requirements of Section 203.

49.

During the May 16,2006, primary and November 7,2006, general election, Defendants
failed to cause voting information required by Section 302(b) of HAVA to be posted in
polling places in Spanish.

50.

Defendants' failure to provide Spanish language signage and information, as described
above, constitutes a violation of Section 301(a)(4).

- 12 51.

Unless enjoined by this Court, Defendants will continue to violate Section 301(a)(4) of
HA V A by failing to ensure that required voting infonnation is posted in all polling places
in Spanish during Federal elections.

SEVENTH CAUSE OF ACTION
52.

Plaintiff restates and incorporates herein the allegations in Paragraphs 1 through 51 of
this Complaint.

53.

Section 8(a)(4) ofthe NVRA requires that "[i]n the administration of voter registration
for elections for Federal office, each State shall ... conduct a general program that makes
a reasonable effort to remove the names of ineligible voters from the official lists of
eligible voters by reason of - (A) the death ofthe registrant; or (B) a change in address of
the registrant." 42 U.S.c. § 1973gg-6(a)(4).

54.

The Commonwealth of Pennsylvania delegated many of these responsibilities to the
Philadelphia City Commissioners. 25 PA. CONS. STAT. ANN. § 1901; PHILADELPHIA
CODE § 2-112. The City's program not only must identify registrants who have died, 25
PA. CONS. STAT. ANN. §§ 1505, 1901, it must take reasonable steps to identify registrants
who have changed their address, 25 PA. CONS. STAT. ANN. § 1901(b).

55.

Despite the list maintenance requirements of Federal and state law, the City fails to
conduct a meaningful general program of voter registration list maintenance in elections
for Federal office, in violation of Section 8(a)(4) of the NVRA.

56.

The City does not conduct a program that makes a reasonable effort to remove the names
of ineligible voters, as the City's voter registration list used in elections for Federal office

- 13 contains numerous ineligible voters, and as information about such individuals has been
provided to the City.
57.

Unless enjoined by this Court, Defendants will continue to violate Section 8(a)(4) of the
NVRA by failing to conduct a general program that makes a reasonable effort to remove
the names of ineligible voters from the official lists of eligible voters.

PRAYER FOR RELIEF
WHEREFORE, Plaintiff United States of America prays that this Court:
1.

With respect to Plaintiffs First Cause of Action:
a.

Declare that Defendants have failed to provide Spanish language election
information and assistance necessary to those who require it in Spanish in
violation of Section 203 ofthe Voting Rights Act, 42 US.C. § 1973aa-l a;

b.

Enjoin Defendants, their employees, agents, and successors in office, and all
persons acting in concert with them, from failing to provide Spanish language
election information and assistance to persons with limited English proficiency as
required by Section 203, 42 US.C. § 19733aa-la; and

c.

Require Defendants to devise, publicize and implement a remedial plan to ensure
that Hispanic citizens are able to participate in all phases ofthe electoral process
as required by Section 203,42 U.S.c. § 19733aa-la.

2.

With respect to Plaintiffs Second Cause of Action:
a.

Declare that Defendants violated Section 4(e) of the Voting Rights Act, 42 US.c.

§ 1973b(e) by failing to provide election material, information and assistance

- 14necessary for Spanish language minority citizens educated in Puerto Rico and
currently residing in the City to participate effectively in the political process;
b.

Enjoin Defendants, their employees, agents, and successors in office, and all
persons acting in concert with them, from failing to provide election material,
information, and assistance to Spanish language minority citizens educated in
Puerto Rico and currently residing in the City;

c.

Require Defendants to devise, publicize, and implement a remedial plan to ensure
that Spanish language minority citizens educated in Puerto Rico and currently
residing in the City are provided election materials, information, and assistance in
compliance with Section 4(e) of the Voting Rights Act, 42 US.c. § 1973b(e).

3.

With respect to Plaintiffs Third Cause of Action:
a.

Declare that Defendants' practices set forth above violate Section 208 of the
Voting Rights Act, 42 U.S.c. § 1973aa-6;

b.

Enjoin Defendants, their employees, agents, and successors in office, and all
persons acting in concert with them, from engaging in any act or practice that
denies the rights secured by Section 208 of the Voting Rights Act, 42 US.C. §
1973aa-6;

c.

Require Defendants to develop and implement a remedial plan to ensure that
Philadelphia voters are permitted assistance from persons of their choice when
they cast their ballots, in compliance with Section 208 of the Voting Rights Act,
42 US.C. § 1973aa-6;

4.

With respect to Plaintiffs Fourth Cause of Action:

- 15 a.

Declare that Defendants have violated Section 2 of the Voting Rights Act, 42
US.C. § 1973, because their actions have resulted in the denial or abridgement of
the rights of Hispanic and limited proficient Hispanic voters;

b.

Enjoin Defendants, their employees, agents, and successors in office, and all
persons acting in concert with them, from implementing practices and procedures
that deny or abridge the rights of Hispanic and limited proficient Hispanic citizens
in violation of Section 2 of the Voting Rights Act, 42 US.C. § 1973; and

c.

Require Defendants to devise and implement a remedial program that provides
Philadelphia's Hispanic and limited proficient Hispanic citizens the opportunity
to participate fully in the political process consistent with Section 2 of the Voting
Rights Act, 42 US.c. § 1973.

5.

With respect to Plaintiffs Fifth Cause of Action:
a.

Declare that Defendants are not in compliance with Section 301(a)(3) ofHAVA,
42 U.S.C. §§ 15481(a)(3), with respect to implementation ofHAVA's voting
system standards for the voters with disabilities and voters with alternative
language needs in elections for Federal office;

b.

Enjoin Defendants, their employees, agents, and successors in office, and all
persons acting in concert with any ofthem, from failing or refusing to comply
promptly with the requirements of Section 301(a)(3) ofHAVA;

c.

Require Defendants, their employees, agents and successors in office and all
persons acting in concert with any of them, to develop promptly a plan to remedy
the demonstrated violations of Section 301(a)(3) ofHAVA.

- 16 6.

With respect to Plaintiff's Sixth Cause of Action:
a.

Declare that Defendants are not in compliance with Section 301(a)(4) ofRAVA,
42 U.S.C. §§ 15481 (a)( 4), with respect to implementation ofHAVA's voting
system standards for the voters with disabilities and voters with alternative
language needs in elections for Federal office;

b.

Enjoin Defendants, their employees, agents, and successors in office, and all
persons acting in concert with any of them, from failing or refusing to comply
promptly with the requirements of Section 30 1(a)(4) ofHAVA;

c.

Require Defendants, their employees, agents and successors in office and all
persons acting in concert with any of them, to develop promptly a plan to remedy
the demonstrated violations of Sections 301 (a)(4) ofHAVA.

7.

With respect to Plaintiff's Seventh Cause of Action:
a.

Declare that Defendants are in violation of Section 8(a)(4) ofthe NVRA, 42
U.S.C. § 1973gg-6, by failing to conduct an adequate general program oflist
maintenance that makes a reasonable effort to remove the names of ineligible
voters from the voter registration list in elections for Federal office according to
the requirements of Section 8(a)(4) of the NVRA.

b.

Enjoin Defendants, their employees, agents, and successors in office, and all
persons acting in concert with any of them, from failing or refusing to comply
with the voter registration list maintenance requirements of Section 8(a)( 4) of the
NVRA.

c.

Require Defendants, their employees, agents, and successors in office and all
persons acting in concert with any of them, to develop promptly a plan to remedy
the demonstrated violations of Section 8(a)(4) of the NVRA.

8.

Plaintiff further requests that this Court:
a.

Authorize the appointment of Federal observers for elections held in Philadelphia
pursuant to Section 3(a) ofthe Voting Rights Act, 42 U.S.C. § 1973a(a), until
December 31, 2009;

b.

Award Plaintiff the costs and disbursements associated with the filing and
maintenance of this action; and

c.

Award such other equitable and further relief as the Court deems just and proper.

- 18 Dated: April 26, 2007

ALBERTO GONZALES
Attorney General
WAN J. KIM
Assistant Attorney General
Civil Rights Division
JOHNK. TANNER
Chief, Voting Section
VIVECA D. PARKER
Assistant United States Attorney

BY~~~~
M. ERIC EVERSOLE
Trial Attorney
SUSANA LORENZO-GIGUERE
ROBERT POPPER
Special Litigation Counsels
SEAN W. 0 'DONNELL
VERONICA SEUNGWON JUNG
DONALD L. PALMER
PUJA A. LAKHANI
Trial Attorneys, Voting Section
Room 7254 - NWB
950 Pennsylvania Avenue, NW
Washington, DC 20530
[phone] (telephone)
[phone] (facsimile)
[e-mail]

Attachment 11

SETTLEMENT AGREEMENT
This settlement agreement (the "Agreement") is entered into as of April 26, 2007
(the "Effective Date") by and between THE UNITED STATES OF AMERICA (the
"Department") and THE CITY OF PHILADELPHIA, MARGARET TARTAGLIONE,
EDGAR A. HOWARD, JOSEPH J. DUDA, in their official capacities as Philadelphia
City Commissioners, and THE PHILADELPHIA COUNTY BOARD OF ELECTIONS
(collectively, the "Defendants"). Plaintiff and Defendants (together, the "Parties") are
parties to the litigation captioned, or otherwise referred to, as United States ofAmerica v.
City of Philadelphia and Philadelphia City Commission, C.A. No. 06-4592, which was
filed in the United States District Court for the Eastern District of Pennsylvania on
October 13,2006 and which will subsequently be modified by an amended complaint, the
stipulation as to which will be filed on April 26, 2007 (the "Litigation").

RECITALS
WHEREAS, pursuant to Pennsylvania law, the Philadelphia County Board of
Elections (the "Board") is the elected body responsible for the conduct of elections in the
City of Philadelphia (the "City") and is bound, inter alia, by the Pennsylvania
Constitution, including Art. 6, § 7; the Pennsylvania Election· Code, 25 Pa. Stat. Ann. §
14 et seq.; federal election law including the statutes referenced in this Agreement; and

the U.S. Constitution.
WHEREAS, since 1992, the City has been covered under Section 203 of the
Voting Rights Act, 42 U.S.c. § 1973aa-la, and has been required to provide election
information and assistance to limited English proficient Hispanic voters.

WHEREAS, the Board has used bilingual ballots and provided voting materials in
Spanish since the 1970s and Arroyo v. Tucker, 372 F. Supp. 764 (E.D. Pa. 1974);
WHEREAS, pursuant to applicable law, each election division in Philadelphia is
staffed on each Election Day by (i) a Judge of Elections, (ii) a Majority Inspector, (iii) a
Minority Inspector, each of whom are popularly elected, (together, the "Elected Polling
Place Officials"), (iv) a Clerk appointed by the Minority Inspector, (v) a Machine
Inspector appointed by the Board, and (vi) where appropriate, interpreter(s) appointed by
the Board (together, the "Appointed Polling Place Officials"). The Elected Polling Place
Officials and the Appointed Polling Place Officials comprise the "Polling Place
Officials" as such term is used in this Agreement.
WHEREAS, Philadelphia has provided Spanish-language interpreters at certain
polling places since the 1970s, including in response to reasonable and timely requests by
the local elected leaders or community organizations;
WHEREAS, the United States, on October 13, 2006, filed an action against the
City and the Board, pursuant to Sections 203 and 208 of the Voting Rights Act of 1965,
as amended, 42 U.S.C. §§ 1973aa-1a and 1973aa-6.
WHEREAS, the Parties, on April 26, 2007, will file a·stipulation to amend the
United States's complaint to include as defendants in this case the Philadelphia City
Commissioners in their official capacity, and the Philadelphia County Board of Elections
(as opposed to the "Philadelphia City Commission"). In addition, the amended complaint
asserts additional claims under Sections 2 and 4(e) ofthe Voting Rights Act, 42 U.S.c.
§§ 1973 and 1973b(e); Sections 301(a)(3) and 301(a)(4) of the Help America Vote Act of

2

2002,42 U.S.C. §§ 15481(a)(3) and (a)(4) ("HAVA"); and Section 8 of the National
Voter Registration Act, 42 U.S.c. § 1973gg-6 ("NVRA").
WHEREAS, in the November 2006 election, the Board enhanced the availability
of services to voters with limited English proficiency, including expanding the number of
Spanish-English interpreters to 195 polling places covering 235 divisions.
WHEREAS, the City disputes many ofthe allegations in the original and the
amended complaint, including all allegations of failure to comply with applicable law.
WHEREAS, in the November 2006 election, the Board made available and
widely publicized the availability oftelephonic interpretation services in approximately
120 languages, including Spanish, at all polling places in Philadelphia under an
expansion of the City's Global Philadelphia program.
WHEREAS, for the November 2006 election, the Board created and advertised a
supplemental, dedicated Election Day help-line, staffed by Spanish speakers, to handle
issues related to language assistance.
WHEREAS, the Board in October 2006, initiated the establishment of a bilingual
advisory committee to advise it on the best methods of assisting voters with limited
proficiency in the English language.
WHEREAS, in March 2007, the Board and the advisory committee has conducted
and will conduct a series of town hall listening sessions, in affected communities with
simultaneous interpretation, to ensure that all citizen input on language assistance issues
is properly addressed.
WHEREAS, since at least 1998, the Board has used information from the Postal
Service's National Change of Address ("NCOA") Program, Pennsylvania's Five Year

3

Notice and Canvass Programs to detect registrants who have changed residence to update
the addresses of more than 100,000 registrants who changed residence within the County
and cancel the records of tens ofthousands of registrants who moved outside the County
or were not qualified to vote. The Board has also used these programs to designate
hundreds of thousands of registrants as inactive and since December 2000 has cancelled
hundreds of thousands of inactive registrants who have failed to appear to vote or update
their records during the period beginning with the date of the NVRA 8(d) notice and
ending after the second federal general election after the notice.
WHEREAS, since June 1995, the Board has also used change of address
information from the Pennsylvania Department of Transportation to update the addresses
of approximately 280,000 registrants who have changed residence within the County and
to remove approximately 114,000 registrants who changed residence to an address in
another Pennsylvania County and transferred these records to the Registration
Commission of the registrant's new county.
WHEREAS, since 1995, the Board has used information provided by the
Pennsylvania Department of Health to remove the names of approximately 120,000
deceased registrants from its files of eligible voters.

TERMS OF SETTLEMENT
NOW, THEREFORE, in the spirit of cooperation and comity and to avoid the
expense and time of litigating the matter, including the planned additional allegations in
the amended complaint, the Parties desire to fully and finally settle the Department's
claims. The Parties agree the Board shall continue and/or undertake the specific activities
set forth in this Agreement to continue and/or enhance its activities to comply with state
and federal election law.

4

In consideration of the mutual promises contained in this Agreement, good and
valuable consideration, the receipt and sufficiency of which is acknowledged, the Pmiies,
intending to be legally bound, agree:
Spanish Language Assistance
1. The Board shall make Spanish language assistance available at the Board's
principal office at 520 North Delaware Avenue. Trained bilingual election personnel
shall be available to answer voting-related questions by telephone without cost (except
as such assistance, such as duplication services, also may be at cost when provided in
English) during normal business hours and while the polls are open on election days.
2. The Board agrees to recruit, hire, and assign sufficient numbers of persons
proficient in Spanish and English, so as to provide effective assistance in the Spanish
language, to serve as interpreters during election days, and, to that end, shall, among
other outreach efforts, invite recommendations of interpreters from community leaders
and from each major political party, and shall urge members ofthe Advisory Group, as
discussed below, to help recruit interpreters.
3. The Board agrees to provide at least one Spanish-language interpreter on
election days at each polling place where the Board determines there to be a need for
such interpreters through the process set forth in Paragraphs 4-6 of this Agreement.
4. For the May 15, 2007 election, the Board will make at least one interpreter
available on election day at each ofthe divisions listed on the attached Exhibit A. For
each ofthe divisions listed on the attached Exhibit B, except for the May 15, 2007
election and elections that are not expected to have high turnout (see Paragraph 6
below), the Board will make available at least two interpreters on election day. The
Parties recognize, however, that it may be difficult to assure that two interpreters are

5

available at each of the divisions listed on Exhibit B for the May 15, 2007 election; for
that election, best efforts will satisfy the Board's obligations to provide two interpreters
at the divisions listed on Exhibit B. For the consolidated divisions listed on the attached
Exhibit C, the Board will make available at least one interpreter on election day for each
two consolidated divisions.
5. Starting in June 2007, and thereafter on an annual basis, the Board will
request that the Philadelphia School District, the Philadelphia Department of Ruman
Services ("DRS"), and the Philadelphia City Planning Commission identify geographic
areas in the City where there has been a material increase in services for Spanishspeaking persons or migration of Spanish-speaking persons. The Board will review and
discuss with the Advisory Group information, to the extent available and useful,
provided by the Philadelphia School District, DRS, the Planning Commission, the
Department, the U.S. Census, voter registration records, local elected leaders, and local
community leaders, and will make appropriate adjustments based upon reliable
information.
6. The Board may adjust bilingual assistance at specific polling places in light of
reliable information that the actual need for language assistance in such polling place is
lesser or greater than as enumerated by the above standards. For the duration of this
Agreement, a determination to eliminate or reduce interpretation at a polling place shall
only be made with the consent ofthe Department or, in the event the Department
objects, the Court. The Parties recognize that the need for the assistance of a second
interpreter at the polling places identified on Exhibit B will vary according to turnout
and the Department will consent to reduce the number of interpreters from two to one at

6

the polling places listed on Exhibit B for elections that are not expected to have high
tUl11out, and to increase the number where there is reliable infonnation that additional
assistance is needed.
7. The Board shall develop a policy to assure that Polling Place Officials who
are assigned by the Board to satisfy its obligations under Paragraph 3 of this Agreement
are able to understand, speak, write, and read Spanish proficiently. Within 30 days of
the date ofthis Agreement, the Board shall provide the Department with a detailed draft
of such policy, which shall include the process to assure that Polling Place Officials who
are assigned by the Board to satisfy its obligations under Paragraph 3 ofthis Agreement
are familiar with Spanish language election terms. The Department shall have seven
days to review the draft and provide comments to the Board. Ifthe Board and the
Department are unable to agree within seven days thereafter on the contents of the
policy, either party may approach the Court for resolution.
8. The Board shall instruct Polling Place Officials to post signs prominently in
both English and Spanish at all polling places stating that Spanish language assistance is
available and, where such assistance is by other than a Spanish-proficient Polling Place
Official, how such assistance can be obtained.
Translation and Dissemination of Election-Related Materials
9. The Board shall employ its best efforts to use materials in English and
Spanish provided by the Commonwealth of Pennsylvania to the extent such signage is
available. To the extent such election-related materials are not provided by the
Commonwealth, the Board shall have all election-related materials, such as registration
or voting applications and notices, voting instructions, notices of availability of
assistance, and ballots, professionally translated into Spanish, or, where appropriate,

7

develop comparable Spanish-language equivalents reasonably calculated to achieve
specific goals in a manner comparable to that provided to the English-speaking
population.
10. The Board shall update the checklist used to identify each written or printed
item of election information that the Board makes available to the public at each polling
place, including each item that the Help America Vote Act requires to be posted. The
Judge of Elections for each polling place shall be instructed to complete and sign this
checklist or, where appropriate, provide written explanation for a failure to do so. The
Board agrees to maintain for 22 months a record of each completed and signed checklist.
11. The Board shall, in consultation with the Advisory Group, design and
implement a program to ensure that Spanish language election information, materials,
and announcements shall be distributed to the media and in paid media placements in the
appropriate Spanish-language venues. These announcements need not be identical in all
respects to English language announcements, but shall provide substantially the same
information and be in the form, frequency, and media reasonably calculated to achieve
effective notice and understanding comparable to that provided to the English-speaking
population.
Assistors of Choice
12. The Board shall provide training and information to Polling Place Officials
that they must allow any voter who requires assistance to vote by reason of blindness,
disability or inability to read or write to be given assistance by a person ofthe voter's
choice, other than a Judge of Election, the voter's employer or agent ofthat employer or
officer or agent of the voter's union.

8

13. The Board shall train and provide inforn1ation to Polling Place Officials that,

when any limited English proficient Spanish-speaking voters, who are either blind,
disabled, or cannot read or write English, select a Polling Place Official as their assistor
of choice, the voters should receive assistance from a Spanish-proficient Polling Place
Official if one is available at that location.
Registration List Maintenance
14. The Department shall share with the Board information from the Death

Master File ofthe Social Security Administration ("SSA") concerning deceased persons
having a Philadelphia County address. The Department shall provide this information in
an electronic text format on a CD or DVD. To the extent available, the information
from the Social Security file shall include the last name, first name, middle initial, and
suffix; date of birth; Social Security number; the date of death; the SSA address of
record for the individual at the time of death; the last SSA Philadelphia address of record
for the individual; the last SSA Pennsylvania address of record for the individual; and
the address from the Philadelphia files of eligible voters for each person the Department
contends is deceased yet still on the Philadelphia voter rolls. The Parties agree that, to
the extent the requested data items are unavailable, such unavailability may limit the
data's usefulness to the Board. The Board will use this previously unavailable and nonmandatory information to search its files of eligible voters. Within 90 days after the first
election after receiving this information, the Board shall, in a manner consistent with
Pennsylvania election law, review its files of eligible voters and attempt to confirm and
remove any registrants found on the Board's files of eligible voters where the Board is
able to confirm the registrant is deceased.

9

15. So long as the data referenced in Paragraph 14 is provided on or before May
31, 2007, the Board shall provide a report to the Department on or before November 1,
2007, with the names and appropriate identifying information of all registrants who
were, by reason of being deceased, deleted from the registration list between January 1,
2007 and the date the report is generated.
16. It shall be the policy of the Board to use all mandatory and reasonably
available optional voter update and removal programs and: (1) act on state-provided
information obtained from the statewide voter registration database regarding voters who
may have become ineligible, such as potential deaths; (2) research, confirm and act on
other specific information provided in writing by Polling Place Officials, or a member of
a voter's household who calls into question a voter's continued residency or eligibility to
vote; (3) use information from non-forwardable Voter Identification Cards returned as
undeliverable by the United States Postal Service to investigate a registrant's
qualifications under Pennsylvania law, consistent with Section 8(f) of the NVRA and
state law, by a canvass to identify and remove ineligible registrants by visiting buildings
and other locations; (4) send a forwardable confirmation notice under Section 8(d) ofthe
NVRA to all voters identified through the statewide voter registration database NCOA
voter removal program who may have moved outside ofthe Board's election jurisdiction
or for whom there is no forwarding information; (5) send a forwardable confirmation
notice to any registered elector who has not voted nor appeared to vote during any
election, or contacted the Board in any manner, and whose contact resulted in a change
in his or her voter record; (6) place voters who do not respond to the confirmation notice
into an inactive status that will indicate the date they were placed in such status; (7)

10

remove inactive voters who fail to appear to vote during the period beginning with the
date of the confinnation notice and ending after the second federal general election
following the date of the confirmation notice or who indicate in writing that they have
moved outside of the jurisdiction; (8) ensure that eligible voters on inactive status (a)
remain on the voter registration list during the period of the two federal general election
cycles following the date the confirmation notice is sent, and (b) are able to cast valid
ballots on election day during that period, upon completion of an affirmation, if required
under state law; and (9) return eligible inactive voters to active status ifthey properly
reactivate their registration. The Board shall notify the Department in writing of any
change in the policy set forth in this paragraph.
Polling Place Official Training and Oath of Undertaking
17. The Board will encourage all Polling Place Officials to attend election
training. That training must include detailed discussions and written materials regarding
the Voting Rights Act, including: (i) the legal obligation and means to make Spanish
language assistance and materials available to voters, (ii) the procedures and guidelines
for providing such assistance, (iii) the requirement that Polling Place Officials be
respectful and courteous to all voters regardless of race, ethnicity, color, or language
abilities and to avoid inappropriate comments, and (iv) the requirement to allow voters,
who are disabled, or cannot read or write English, to select any person of their choice,
other than a Judge of Election, the voter's employer or an officer or agent of the voter's
union, to assist them with the voting process. Moreover, the training must cover the
right of each voter, pursuant to Section 301 ofHAVA and the Pennsylvania
Constitution, to vote privately and independently, and the procedures for setting up and
operating accessible machines and the requirement to post all HAVA -required signs, in
11

English and Spanish, so that all voters can easily view such signs. The Board will retain
a list of those who have attended training.
18. To be eligible to serve as a Polling Place Official in specific capacities, an
individual must take the appropriate oath of office under 25 Pa. Stat. Ann. §§ 2677-80.
Beginning with officials trained after May 1, 2007, for the May 15, 2007 election, and
for all training provided thereafter, the Board shall require that Polling Place Officials
also, at the time they receive training, swear or affirm on an appropriate form that they
are aware of and will comply with all of their obligations under federal law, including
the legal obligation and means to make Spanish language assistance and materials
available to voters and the parameters of such assistance; that they will treat all voters
equally and with respect; take any and all reasonable steps to ensure that the polling
place is free from intimidation or coercion; honor the candidate and other ballot choices
of all voters who receive assistance in marking their ballots and, allow voters requiring
language assistance to choose any person to assist them, other than their employer or
union representative, consistent with Section 208 of the Voting Rights Act.
Spanish Language Election Program Coordinator
19. The Board shall designate an individual to coordinate the Board's Spanish
language election program (the "Spanish Language Coordinator") for all elections in the
City. The Board shall provide the Spanish Language Coordinator with support sufficient
to meet its goals for the program. The Spanish Language Coordinator shall be able to
understand, speak, write, and read both Spanish and English fluently, or shall have
subordinates with those abilities. The Spanish Language Coordinator shall work under
the supervision of the Board and his or her responsibilities shall include, but are not

12

limited to: (i) coordinating efforts to ensure that all ballots and other election
infoTI11ation are translated properly; (ii) developing and overseeing the bilingual Spanish
language election pUblicity program, including the selection of appropriate Spanish
language media for notices and announcements; (iii) identifying the need for, recruiting
and assigning Spanish language interpreters for all elections; (iv) developing and
overseeing the presentation in English of the bilingual-related elements of the Board's
election training program for all Polling Place Officials to ensure compliance with the
requirements ofthis Agreement and applicable federal and state law; and (v) managing
any other aspect of the Spanish bilingual program that is required by this Agreement and
applicable federal or state law.
20. The Spanish Language Coordinator shall keep, maintain for 22 months, and
hold available for reasonable inspection and copying at the Board's office a record of
information used to publicize Spanish-language election information, announcements
and notices, including all materials that are provided to the Advisory Group pursuant to
paragraph 23 of this Agreement.
Response to Complaints
21. The Board, upon receipt of complaints, whether oral or written, agrees to
investigate expeditiously any allegations of Polling Place Officials' illegal or materially
inappropriate conduct toward voters or failures to follow federal election law. Where
there is credible evidence that a Polling Place Official has engaged in illegal or
materially inappropriate treatment of voters, or failed to follow federal election law, the
Board shall take reasonable efforts to prevent future offenses by such official. As
appropriate under the circumstances of each case, such efforts may include counseling,
in-person instruction, refusal to reappoint an Appointed Polling Place Official, seeking a

13

judicial order to remove an Elected Polling Place Official, and referral of potentially
criminal acts to the District Attorney.
Advisory Group
22. The Advisory Group shall assist the Board in its Spanish language election
program. There shall be open meetings of the Advisory Group at least quarterly through
2008, including one such meeting no less than 45 days in advance of each primary and
general election. The Advisory Group will address at least the following issues: voter'
registration, conduct of Polling Place Officials/need for bilingual Polling Place Officials,
and voter education and information. The Advisory Group will consider channels of
communication and make recommendations to the Board regarding dissemination of
election information. To further the purposes ofthe Advisory Group, it may establish
subcommittees that are open to all interested individuals and organizations. The
chairperson ofthe Advisory Group shall provide notice of all planned meetings,
including the time and location for the meeting, at least seven days in advance of such
meeting, although members of the Advisory Group may agree to waive or shorten this
time period as necessary. Notices of open meetings shall be provided to the Department,
and publicized to appropriate language media and community groups. The chairperson
may fix the topics of such meetings and shall, where a topic is fixed, provide in advance
a general agenda of such meetings. The chairperson shall regularly provide a written
summary of the proceedings of the Advisory Group to all members of the Board.
23. The Board shall make available to all members of the Advisory Group copies,
in English and Spanish, of all appropriate election information, announcements, and
notices that are provided or made available to the electorate and general public.

14

Accessible Voting Machines
24. The Board shall ensure that each polling place has at least one voting machine
designed for the use of those with accessibility needs in accordance with the 2002
Voluntary Voting System Standards adopted by the United States Election Assistance
Commission ("Accessible Voting Machines"). The Board shall instruct its machine
inspectors to assure that at least one such Accessible Voting Machine, including any
feature intended to allow voters with 'disabilities to vote privately and independently, is
fully operational at each polling place before the opening of the polling place. Training
for Polling Place Officials shall include how to ensure the appropriate Polling Place
Official provides effective assistance such that the appropriate Polling Place Official
may assist voters. The Board shall instruct Polling Place Officials not to in any way
specifically discourage, delay, or interfere with any voter who requests the use of an
Accessible Voting Machine. To the extent that the Board is made aware that an
Accessible Voting Machine is not fully operational when a polling place opens, the
Board shall take prompt and appropriate measures to make the machine operational and
will keep a record if no Accessible Voting Machine is available at any division for a
period of 90 minutes or more during hours that such polling place is open.
Evaluation of Plan

25. The Parties recognize that regular and ongoing reassessment may be necessary
to provide the most effective and efficient Spanish language election program. The
Board shall reevaluate its election procedures and programs after each election to
determine which aspects ofthe programs are functioning well, whether any aspects need
improvement, and how to affect needed improvements. The Agreement may be adjusted
by agreement of the Parties.

15

Dismissal of Action
26. The Parties stipulate and agree to the dismissal to of all ofthe Department's
claims raised in the complaint and the amended complaint, and of all other claims related
to the conduct of the polls that could have been brought, as of the date of this
Agreement, under the Voting Rights Act of 1965, as amended, the Help America Vote
Act of2002, the National Voter Registration Act of 1993, and any other federal law to
the extent such laws address conduct of elections; provided, however, that: (1) this
Agreement does not resolve, limit, preclude or implicate any claims the Department may
have regarding the physical accessibility of the Defendants' polling places under the
Americans with Disabilities Act or other federal law; (2) this Agreement does not
resolve, limit, preclude, or implicate any criminal charges; (3) nothing in this Agreement
will prevent the Department from bringing new claims against anyone based on conduct
in future elections during the term of this Agreement, so long as the Department first
exhausts the dispute resolution procedures of Paragraph 28; and (4) nothing herein shall
be interpreted to diminish or enhance the use of any evidence of events occurring before
the date ofthis Agreement, which use is governed by the Federal Rules of Evidence.
27. Contemporaneous with the signing ofthis Agreenient, the Department shall
provide Defendants with a signed Stipulation of Dismissal with Prejudice in the form
attached as Exhibit D. The amended complaint shall be filed within three business days
of the Effective Date. Defendants shall promptly sign the Stipulation of Dismissal, and
file it after the amended complaint has been filed.
Dispute Resolution
28. Before filing any complaint, motion, or other pleading concerning the
Defendants' failure to conduct any activity, or to refrain from any activity, covered by

16

this Agreement, or sending any letter to the Court, the Department must take certain
steps: (a) expeditiously investigate and verify such infonnation and the Defendants will
reasonably cooperate with and assist the Department as it does so (for the avoidance of
doubt, reasonable cooperation does not include waiver of any claims to privilege or
provision of any infonnation requested in a broad and sweeping manner); (b) give
specific written notice within 30 days to the Board of any credible allegation violation of
the Voting Rights Act, HAVA, the NYRA, or any other applicable election-related law
that the Department reasonably believes can be substantiated, including a detailed
statement ofthe factual basis for any alleged violations or objections and all related
infonnation gathered by the Department; (c) make appropriately senior personnel
reasonably available to participate in at least one face-to-face meeting in Philadelphia to
attempt in good faith to resolve any differences; and (d) allow the Board 30 days to cure
any purported violations (or in the case of past violations to take remedial or
preventative efforts), or such other time as is reasonable and necessary in light ofthe
imminence of an election day. The Board will provide infonnation to the Department
that has been reasonably requested to assist and cooperate with the Department in its
investigation; provided, however, that the Board's alleged fallure to provide such
infonnation shall not be grounds for the Department to fail to take the steps outlined in
this provision before filing any complaint, motion, or other pleading, or sending any
letter to the Court. Nothing in this paragraph, however, shall in any way bar the United
States from pursuing appropriate criminal sanctions against any individual Polling Place
Official for alleged wrong-doing in connection with the conduct of any election.
Department Assistance

17

29. The Department agrees to provide reasonable guidance to the Board,
including but not limited to, guidance about model policies in other jurisdictions and
demographic infoffi1ation to the extent that it is not otherwise reasonably available to the
Board.
Other Provisions
30. The terms of this Agreement apply to all federal, state, and local elections that
are administered by the Board to the extent it is consistent with the Voting Rights Act,
HAVA and the NVRA and any other applicable election law. Were the Board to enter
into an election services contract with any other entity, the Board would require such
entity to agree to abide by the terms of this Agreement as if such entity were a party to it,
as consistent with applicable law.
31. This Agreement is final and binding between the Parties and their successors
in office regarding the matters described in paragraph 23. This Agreement shall expire
on July 1, 2009.
32. The Parties shall jointly move the Court to retain jurisdiction over the case
until July 1, 2009, and agree that the Court shall have the authority to enforce each of the
terms of this Agreement.
33. The Parties agree that no Party shall be in breach of this Settlement
Agreement due to causes beyond such Party's control, including acts of God, acts of
terrorism, floods, fires, accidents, wars, or civil insurrection.
34. The Department may request federal monitors for any election during the term
ofthis Agreement by providing a written request for such monitors to the City Solicitor
ofthe City at least 30 days before such election or, for the May 15, 2007 election, within

18

five days of the Effective Date. The City anticipates that it will approve such monitors
in a manner consistent with its historic practice.
35. Nothing in this Agreement shall be constmed as an admission of liability by
the Department, the Board, the City, or any of their employees, officers, directors, Board
members or other elected or appointed officials, agents, or representatives.
36. This Agreement, including all attachments hereto, represents the entire
Agreement and understanding between the Parties regarding the subject matter hereof
and supersedes any and all prior and contemporaneous agreements, representations,
understandings and negotiations between the Parties hereto, whether oral or written, with
respect to the subject matter hereof
37. The Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which taken together shall constitute one
and the same document.
38. Any notice to the Department under this Agreement shall be directed to the
Chief ofthe Voting Section of the United States Department of Justice. Any notice to
the Board under this Agreement shall be directed both to the City Solicitor and to Abbe
F. Fletman, Flaster/Greenberg, P.C., Eight Penn Center, 1628 JFK Blvd., 15th floor,
Philadelphia, P A 19103.

19

IN WITNESS WHEREOF, the Parties, by their duly authorized representatives,
have executed this Agreement as of the Effective Date set forth above.
For Defendants:

For Plaintiff:

WAN J. KIM
Assistant Attorney General
Civil Rights Division

ROMULO L. DIAZ, JR.
City Solicitor
MARK R. ZECCA
KEVIN GREENBERG
City of Philadelphia
1515 Arch Street, 17th Floor
Philadelphia, P A 19102

PATRICK MEEHAN
United States Attorney
VIVECA D. PARKER
Assistant United States Attorney

ABBE F. FLETMAN
Flaster/Greenberg, P.e.
Eight Penn Center
1628 JFK Blvd., 15th floor
Philadelphia, P A 19103

M. ERIC EVERSOLE
Trial Attorney
JOHN TANNER
Chief, Voting Section
SUSANA LORENZO-GIGUERE
ROBERT POPPER
Special Litigation Counsel
SEAN W. O'DONNELL
VERONICA SEUNGWON JUNG
DONALD L. PALMER
PUJA A. LAKHANI
Trial Attorneys
United States Department of Justice
Civil Rights Division,
Voting Section
950 Pennsylvania Avenue NW
Room NWB-7254
Washington, D.C. 20530
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]

DENISE J. SMYLER
Smyler & Gentile
109 South 22nd Street
Philadelphia, PA 19103

20

EXHIBIT A
Wards and Divisions Where One Spanish-Speaking Interpreter
Will Be Assigned Pursuant to Paragraph 4 of the Agreement
Ward

Divisions

Ward

Divisions

1

6,7,10

33

1-6,8-18,20-24

5

13, 16,23

35

9, 12, 18-19,21-22,30

7

2 - 21,23

37

10, 13-15, 19-21

8

26

42

1-3,5-6,9-10, 12, 14-21,23-24

14

7,9,10

43

3, 5-6, 13-22, 24-25

15

3,10,11,16

45

8-11, 13-14, 16-19

18

1,3,8,9, 13-17

49

1,6,9, 10,

19

1-19

53

2

20

1,2,4,5, 8, 10

54

4

23

1-3,10-12,15-16,22-23

61

1,3; 4, 7, 8, 12, 18

25

9, 13-21,23

62

1,5, 7, 9, 13,

31

1-2,8,9, 11, 12

21

EXHIBITB
Wards and Divisions Where Two Spanish-Speaking Interpreters
Will Be Assigned for Anticipated High-Turnout Elections
Pursuant to Paragraphs 4 and 6 of the Agreement

Ward

7

Divisions

1,22

23

11

33

7, 19

37

16,17, 18

42

4,8, 11, 13,22

43

2,4, 7, 8, 11, 12

22

EXHIBIT C
Consolidated Precincts Where One Spanish-Speaking Interpreter
Will Be Assigned to Cover Multiple Divisions Pursuant to Paragraph 4
of the Agreement
Ward

Divisions

Ward

Divisions

1

14 & 15

49

2& 13;

5

15 & 17

53

1 &3;

4&6;

12 & 23;

13 & 16

23

4 & 8;

6& 7;

20 &21

54

14&22

11 &22

61

6& 7;

9 & 13;
25

2 &3;

11 & 12

7 &8;
23 &24;

41

10 & 11; 15 & 17

62

27 &29

6 & 13;

10 & 20;

14 & 15;

35

19 &26

10 & 11;

18 & 19;

21,23, & 24

1&2

65

23

7&8

5&6

11 & 16;

EXHIBITD
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PHILADELPHIA DIVISION
THE UNITED STATES OF AMERICA,
Plaintiff,
v.
THE CITY OF PHILADELPHIA;
MARGARET TARTAGLIONE, EDGAR
A. HOWARD, JOSEPH J. DUDA, in their
official capacities as Philadelphia City
Commissioners; and THE PHILADELPHIA
COUNTY BOARD OF ELECTIONS,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO. 2:06cv4592

----------------------------)
STIPULATION OF DISMISSAL WITH PREJUDICE

It is hereby stipulated and agreed that claims of plaintiff, the United States of
America, against defendants, the City of Philadelphia, Margaret Tartaglione, Edgar A.
Howard and Joseph J. Duda, in their official capacities as Philadelphia City
Commissioners, and the Philadelphia County Board of Elections, are hereby
DISMISSED WITH PREJUDICE and without costs with the consent of all parties.

24

It is further stipulated and agreed that the COUJ1 shall retain jurisdiction over this

matter until July 1, 2009, and shall have the authority to enforce the settlement agreement
among the parties.
For Plaintiff:

For Defendants:

WANJ.KIM
Assistant Attorney General
Civil Rights Division

ROMULO L. DIAZ, JR.
City Solicitor
MARK R. ZECCA
KEVIN GREENBERG
City of Philadelphia Law Department
1515 Arch Street, 17th Floor
Philadelphia, P A 19102

PATRICK MEEHAN
United States Attorney
VIVECA D. PARKER
Assistant United States Attorney

ABBE F. FLETMAN
Flaster/Greenberg, P .C.
Eight Penn Center
1628 JFK Blvd., 15th floor
Philadelphia, P A 19103

M. ERIC EVERSOLE
Trial Attorney
JOHN TANNER
Chief, Voting Section
SUSANA LORENZO-GIGUERE
ROBERT POPPER
Special Litigation Counsel
SEAN W. O'DONNELL
VERONICA SEUNGWON JUNG
DONALD L. PALMER
PUJA A. LAKHANI
Trial Attorneys
United States Department of Justice
Civil Rights Division,
Voting Section
950 Pennsylvania Avenue NW
Room NWB-7254
Washington, D.C. 20530
Telephone: [phone]
Facsimile: [phone]
susana.lorenzo-giguere@usdoj .gov
[e-mail]

DENISE J. SMYLER
Smyler & Gentile
109 South 22nd Street
Philadelphia, P A 19103

SO APPROVED:

J.

25

ADDENDUM

DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS
RECORD
ENTRY
NUMBER

DOCUMENT DESCRIPTION

PAGEID# RANGE

1

Complaint

1-17

37

Plaintiffs’ First Amended
Complaint

230, 235-238

38

Defendant’s Initial Merits Brief

257, 267-268

39

Plaintiffs’ Motion for Summary
1386, 1400-1401
Judgment and Permanent Injunction

49

Defendant’s Second Merits Brief

22337-22339

56

Defendant’s Third Merits Brief

22727-22730

66

Order filed June 29, 2016

23007-23009, 23012, 2301423026

67

Judgment

23027