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 Motion for Intervention aims to prevent DOJ from requiring pre-clearance to enforce election integrity provisions of HB 589 

(Washington, DC)Judicial Watch announced today that it has filed a Motion for Intervention with its client Christina Kelley Gallegos-Merrill to defend North Carolina against an Obama Department of Justice (DOJ) lawsuit. The DOJ seeks to prevent enforcement of HB 589, which requires, among other election integrity measures, that voters present a photo ID before casting a ballot.  In addition to representing Judicial Watch members in North Carolina, the Intervention seeks to protect the interests of Ms. Gallegos-Merrill, who was a Republican candidate for local office in North Carolina who likely lost her race because of voting irregularities that would be addressed by HB 589.

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According to Judicial Watch’s motion:

In 2012, [Gallegos-Merrill] ran for County Commissioner of Buncombe County and lost a very close election. She alleges that this loss was due to same-day registration during early voting and to improperly cast ballots…. Merrill has made concrete plans to run again for that office in 2014 and has taken steps to make that happen…. Any ruling from this Court reversing the repeal of same-day registration during early voting or enjoining the enforcement of North Carolina’s photo ID law, would “impair or impede” Merrill’s interests including her immediate electoral prospects for 2014.

On July 25, 2013, both houses of the North Carolina Legislature passed the Voter Information Verification Act (HB 589) popularly known as the “voter ID law,” overhauling the state’s election laws. The bill’s provisions require photo identification for in-person voting; eliminate same-day registration during early voting; reduce the number of days of early voting; and require provisional ballots to be cast in the proper precinct.

On the day the bill passed, Attorney General Eric Holder in a speech to the National Urban League concerning the Supreme Court’s decision in Shelby Co. v. Holder said that a DOJ voting rights lawsuit against Texas, “is the Department’s first action to protect voting rights following the Shelby County decision, but it will not be our last.” This statement was widely seen as a reference to a potential lawsuit against North Carolina over its photo ID law. A former Holder spokesman, Matt Miller, said the next day that “[f]rom everything I’ve read, the writing’s on the wall that the North Carolina law is going to draw a DOJ challenge.”

On July 29, 2013, a group of political activists attended a meeting at the White House with Attorney General Holder, Labor Secretary (and former Assistant Attorney General for Civil Rights) Tom Perez, and President Obama. Those attending included representatives from the ACLU, the NAACP, and Rev. Al Sharpton. Sharpton subsequently told MSNBC that, based upon what he heard at the “unprecedented” meeting, he expected action regarding North Carolina “when this governor signs the bill.”

When HB 589 was signed into law on August 12, two private lawsuits were filed in U.S. District Court. A complaint by the National Association of Colored People (NAACP) alleged violations of the 14th and 15th Amendments and the Voting Rights Act (VRA). A complaint by the League of Women Voters also alleged violations of the 14th Amendment and the VRA. On September 30, the DOJ filed its complaint, asking the court to require federal pre-clearance before the state could enforce the HB 589 provisions. On November 26, the DOJ moved to consolidate all three cases.

In its Motion for Intervention, Judicial Watch argues:

The photo ID law at issue seeks, among other things, to prevent voter fraud.  Where there is such fraud, North Carolina voters are harmed by having their votes diluted.  In considering Indiana’s photo ID law, the Court of Appeals for the Seventh Circuit noted that “[t]he purpose of the Indiana law is to reduce voting fraud, and voting fraud impairs the right of legitimate voters to vote by diluting their votes – dilution being recognized to be an impairment of the right to vote.”… North Carolina’s voters, including Merrill, are threatened with the same kind of injury.

Judicial Watch’s actions in North Carolina are part of its continuing Election Integrity Project. According to a comprehensive Judicial Watch investigation, in addition to North Carolina, a number of other states also appear to have problems with inaccurate voter registration lists, including: Mississippi, Iowa, Missouri, Texas, Ohio, Pennsylvania, West Virginia, Alabama, and California. Judicial Watch has put election officials on notice in these states that they must maintain accurate voter registration lists consistent with Section 8 of the NVRA or face litigation to enforce the federal law. It has already taken legal action in Indiana, Ohio, and Florida to help prevent voter fraud.

Lead attorney for Judicial Watch is Robert Popper, former Deputy Chief of the Voting Section of the Civil Rights Division of the DOJ. Popper is assisted by Christopher Coates, former Chief of the Voting Rights Section of the DOJ. Local counsel is Gene Johnson.

“The Obama Justice Department is clearly hostile to the idea of one person, one vote, one time,” said Judicial Watch President Tom Fitton. “It is shameful that the Justice Department is now in court trying to stop North Carolina from fulfilling its legal obligation to prevent ineligible voters from committing voter fraud.  Candidates, such as our client Ms. Gallegos-Merrill, have a right to expect to compete in clean elections.  And we look forward to defending the voting rights of our supporters throughout the nation, the rule of law, and election integrity from an unprecedented attack from this highly politicized Justice Department.”

Lawsuit Evidence:  Indiana Election Officials Have Failed to Maintain Clean Voter Registration Lists Since 2009; Rolls in 12 Indiana Counties Exceed 100% of Total Voting-age Population 

(Washington, DC) – Judicial Watch today announced that on October 11, 2013, it filed a motion for summary judgment in the historic litigation (Judicial Watch, et. al v. King, et. al (No.1:12-cv-00800)) against election officials in the State of Indiana for violations of the National Voter Registration Act (NVRA). Judicial Watch and its co-plaintiff and client, True the Vote, a grassroots election integrity watchdog, allege that the State of Indiana failed to maintain clean voter registration lists as required by the NVRA.  True the Vote is a citizens’ watchdog dedicated to securing the integrity of America’s elections.

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In the motion for summary judgment, Judicial Watch and True the Vote presented the court with the following new evidence gathered against Indiana over the past 15 months of litigation:

  • The Indiana Election Division Co-Directors “frequently disagreed… concerning voter list maintenance, preventing Indiana from initiating numerous voter list maintenance programs.”
  • “Indiana has taken a mostly passive approach to voter list maintenance, even though states are required to actively lead, direct, and oversee a list maintenance program under the NVRA.”
  • Though the Indiana Department of Health is “required by Indiana law to obtain out-of-state death information from other states for purposes of assisting the Election Division to maintain the voter registration rolls,” for several years has “failed to comply with Indiana law in this regard.”
  • Indiana’s voter rolls were inaccurate “due to a general failure to adequately identify voters who had died out-of-state or relocated out-of-state”
  • Local Indiana election officials testified that they “cannot effectively undertake efforts to maintain voter registration rolls” unless the Indiana State Government coordinates the participation of “as many as 6 separate Indiana state offices and local election officials in all 92 Indiana counties.”
  • Judicial Watch and True the Vote’s expert witness, former Georgia Secretary of State and Chief Election Official Karen Handel, concluded that  “Indiana has failed to conduct even the most basic list maintenance program to ensure reasonably accurate voter rolls.”

Arguing that “Indiana has violated NVRA Section 8’s requirement to ‘conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists of eligible voters,’” the Judicial Watch/True the Vote motion cited the following “reasonable activities” the state of Indiana failed to undertake:

  • “Conduct a statewide mailing to all registered voters pursuant to the NVRA to identify voters who have moved;
  • “Ensure that the Indiana Department of Health obtains death information from other states via the State and Territorial Exchange of Vital Events(“STEVE”) and Electronic Verification of Vital Events (“EVVE”) interstate systems and provides the information to the Election Division for list maintenance;
  • “Obtain the Social Security Death Index (“SSDI”) from the federal government and provide appropriate information from the SSDI to each local official;
  • “Enter the Interstate Voter Registration Cross-Check (“IVRC”) program for the identification of Indiana voters who move out-of-state;
  • “Obtain the National Change of Address (“NCOA”) database from the U.S. Postal Service to identify relocated voters; and
  • “Obtain access to the Systematic Alien Verification for Entitlements (“SAVE”) database from the U.S. Department of Homeland Security to identify non-citizen registered voters.”

In addition, the Judicial Watch/True the Vote motion alleged Indiana has neglected to undertake reasonable oversight activities including a failure to conduct adequate training and instruction of local elections officials, to monitor the list maintenance performance of local officials on a regular basis, and to provide state funding to local officials to carry out list maintenance programs.

The case against the State of Indiana began on February 6, 2012, when Judicial Watch notified election officials by letter that the state is in violation of the NVRA, having failed to clean its voting records to the extent that “the number of persons registered to vote exceeded the total voting population in twelve Indiana counties.” The Judicial Watch letter also requested that the State of Indiana make available for public inspection all records concerning “the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency” of official lists of eligible voters, per Section 8 of the NVRA.

Indiana officials responded by summarily dismissing these concerns about the rolls and by flatly refusing to produce documents about this issue. On June 11, 2012, Judicial Watch and True the Vote filed suit, naming Indiana Secretary of State Connie Lawson and Indiana Election Division Directors J. Bradley Kind and Trent Deckard as defendants in their official capacity. On December 10, 2012, the District Court denied the state’s motion to dismiss the suit ruling that both Judicial Watch and True the Vote had suffered injuries because of the state’s “failure to comply with the NVRA list maintenance requirements.”

In 2006, the federal government sued election officials in Indiana and forced the state to take measures to comply with the voter list maintenance under the NVRA, which requires that states “conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists of eligible voters.” However, the remedies enacted by the state under a consent decree proved to be temporary and were largely abandoned when the consent decree expired in 2009.

Based upon Judicial Watch’s analysis of publicly available data for the November 2010 general election, the number of persons listed on voter registration rolls in 12 counties in the State of Indiana exceeds 100% of the total voting-age population in those counties. According to the motion for summary judgment, Judicial Watch also found that “Following the expiration of the 2006 Consent Decree in 2009, Indiana ceased regularly monitoring local election officials’ performance of voter list maintenance tasks and ceased notifying local election officials of violations or apparent problems with voter rolls.” The motion also alleges that the state failed to obtain adequate death information or identify voters who had moved out of state.

As part of its 2012 Election Integrity Project Judicial Watch conducted an investigation demonstrating that voter rolls in the following states contained the names of individuals ineligible to vote: Mississippi, Iowa, Indiana, Missouri, Texas, Ohio, Pennsylvania, West Virginia, Florida, Alabama, and California. Judicial Watch notified these states on that they must clean up their voter registration lists or face Judicial Watch lawsuits. Judicial Watch and True the Vote subsequently filed lawsuits against election officials in Indiana and Ohio, and prompted the state of Florida and other states, without litigation, to remove thousands of ineligible voters from state registration lists.

The Obama Justice Department pressured states to register greater numbers of voters on public assistance in 2012, while ignoring a stipulation in the NVRA requiring states to clean up voter registration lists. The Justice Department also opposed voter ID laws and other election integrity measures.

“The facts are truly against Indiana in this case,” True the Vote President Catherine Engelbrecht said. “When the state admits in court its continued inability to share basic information between agencies to maintain voter rolls, then we have a serious breakdown in the execution of our most basic of civil rights. Indiana has been reprimanded before for these procedural breakdowns by the Department of Justice – the actions taken by True the Vote and Judicial Watch are intended to ensure that justice will be served.”

“Our lawsuit has documented beyond any doubt the utter failure of Indiana’s election officials to maintain accurate and current voter registration rolls.  This failure is not only a violation of federal law, but it harms citizens’ confidence in the integrity of elections and undermines the stability and effectiveness of the electoral system,” said Judicial Watch President Tom Fitton. “Unfortunately, Indiana has rejected multiple offers to settle this case. So once again, a federal court may have to intervene to force Indiana officials to obey the law and clean up Indiana’s voting rolls.”

Former Deputy Chief of Voting Section of the Civil Rights Division of the U.S. Department of Justice

(Washington, DC) – Judicial Watch announced today its newest team member, attorney Robert D. Popper.  As Deputy Chief of the Voting Section of the Department of Justice (DOJ), he led complex litigations involving the Voting Rights Act, the National Voter Registration Act, and the Help America Vote Act, and he obtained favorable results in major lawsuits in Alabama, Arizona, Indiana, Maine, New Jersey, New York, Pennsylvania, and California.  Mr. Popper will help lead Judicial Watch’s Election Integrity Project.

Judicial Watch president Tom Fitton issued the following statement on Popper’s hiring:

“We are pleased and proud to welcome Robert Popper on board.  Judicial Watch has made election integrity a centerpiece of its activities.  As one of the nation’s top lawyers in the area of election law, Robert Popper shares its deep and sincere interest in making certain that every vote cast is legitimate.  Bob will be helping lead our efforts to strengthen the integrity of our elections – which is under unprecedented assault by the Obama Justice Department and allied leftist groups.”

Robert Popper added:

“I am thrilled to be joining an organization with a history of activism in behalf of open and honest government administration.  I look forward to advancing the goals of Judicial Watch through its Election Integrity Project.”

Mr. Popper has garnered numerous professional awards, including the Justice Department’s prestigious Special Commendation Award for Outstanding Service.

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Prior to joining the DOJ, Mr. Popper worked as a private attorney in New York City for 17 years.  He served as trial counsel in federal and state trials, appeals, and arbitrations.  His practice extended to a wide range of legal matters – including voting rights.  Mr. Popper served as both trial and appellate counsel in a successful constitutional challenge alleging racial segregation in the design of New York’s congressional districts.  As counsel for the plaintiffs, Mr. Popper obtained a favorable ruling from a three-judge federal panel in the Eastern District of New York, which was summarily affirmed by the U.S. Supreme Court.

Mr. Popper is a published author on the topic of voting rights law.  He developed a legal standard relating to gerrymandering that is widely cited by experts and was adopted by the Arizona Independent Redistricting Commission.  He has spoken about voting rights to a conference of U.S. Attorneys at the National Advocacy Center, to a conference of state officials, and before countless local community representatives.  He has testified before the Missouri Senate Redistricting Committee on gerrymandering.  He has made radio and television appearances on behalf of the Heartland Institute.

Mr. Popper is a graduate of the University of Pennsylvania and Northwestern University Law School.  He is admitted to practice in the Southern and Eastern Districts of New York, the Court of Appeals for the Second Circuit, and the U.S. Supreme Court.

Founded in 1994, Judicial Watch Inc. is a constitutionally conservative, nonpartisan educational foundation that promotes transparency, accountability and integrity in government, politics and the law.

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