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OH Randolph Institute v Husted appeal amicus 3746

OH Randolph Institute v Husted appeal amicus 3746

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Case: 16-3746
Document:
Filed: 07/27/2016
No. 16-3746
_____________________________________ THE UNITED STATES COURT APPEALS
FOR THE SIXTH CIRCUIT
_____________________________________
OHIO PHILLIP RANDOLPH INSTITUTE, al.,
Plaintiffs Appellants,
JON HUSTED,
Defendant Appellee.
____________________________________ Appeal from the U.S. District Court for the Southern District Ohio,
Eastern Division, Case No. 2:16-cv-303
_____________________________________
AMICUS CURIAE BRIEF JUDICIAL WATCH, INC.
SUPPORT DEFENDANT-APPELLANT AND AFFIRMANCE
____________________________________
Robert Popper
Chris Fedeli
Lauren Burke
JUDICIAL WATCH, INC.
425 Third Street SW, Suite 800
Washington, 20024
(202) 646-5172
Date: July 27, 2016
Case: 16-3746
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Filed: 07/27/2016
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TABLE CONTENTS
PAGE
TABLE CONTENTS ..........................................................................................
TABLE AUTHORITIES ................................................................................... iii
INTERESTS AND AUTHORITY AMICUS CURIAE .......................................
ARGUMENT ............................................................................................................. Ohio Supplemental Process Falls Squarely Within the Unambiguous
Language Section the NVRA .............................................................. The NVRA Does not Contain Trigger Requirement for the Process
set Forth Subsection (d) .............................................................................. DOJ Arguments About the NVRA Requirements are not Entitled
any Special Weight Deference ................................................................... Ohio and Other States Must Maintain Accurate Voter Rolls Protect
the Integrity the Electoral Process Well Citizens Confidence
Elections ........................................................................................................
CONCLUSION ........................................................................................................
CERTIFICATE COMPLIANCE ......................................................................
CERTIFICATE SERVICE AND ELECTRONIC FILING .............................
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TABLE AUTHORITIES
CASES
PAGE
Caminetti United States, 242 U.S. 470 (1917) ......................................................
Chevron Natural Resources Defense Council, 467 U.S. 837 (1984) .................
Crawford Marion County Election Bd., 553 U.S. 181 (2008) ............................
Duncan Walker, 533 U.S. 167 (2001) ...................................................................
Judicial Watch, Inc. King, 993 Supp. 919 (S.D. Ind. 2012) ......................
Landreth Timber Co. Landreth, 471 U.S. 681 (1985) ..........................................
Public Employees Retirement System Ohio Betts, 492 U.S. 158 (1989) ..........
Skidmore Swift Co., 323 U.S. 134 (1944) ......................................................
United States Gonzales, 520 U.S. (1997) ...........................................................
United States Mead Corp., 121 S.Ct. 2164 (2001) .............................................
United States Philip Morris USA, Inc., 310 Supp.2d (D.D.C. 2004) ........
United States Ron Pair Enterprises, Inc., 489 U.S. 235 (1989) ...........................
Watt Energy Action Ed. Foundation, 454 U.S. 151 (1981) ..................................
Welker Clarke, 239 F.3d 596 (3rd Cir. 2001) ......................................................
Williams Taylor, 529 U.S. 420 (2000) ..................................................................
Young United Parcel Service, 135 Ct. 1338 (2015) .......................................
iii
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STATUTES U.S.C. 20501 ...................................................................................................... U.S.C. 20507(a)(4) ............................................................................................. U.S.C. 20507(b) .............................................................................................. U.S.C. 20507(b)(2) ....................................................................................... U.S.C. 20507(d) ............................................................................................. U.S.C. 21083 .................................................................................................... U.S.C. 21083(a)(4) .........................................................................................
OTHER AUTHORITIES
147 Cong. Rec. H9290 (daily ed. Dec. 12, 2001) (statement Rep. Terry) ........
Press Release, Secretary State Husted Reminds Ohioans: One Vote
Matters, Ohio Secretary State Office (Jan. 13, 2013) ....................................
REPORT THE COMMISSION FEDERAL ELECTION REFORM, Jimmy Carter and
James Baker, III (Co-Chairs), Building Confidence U.S. Elections,
American University Center for Democracy and Election Management,
(Sept. 2005) ............................................................................................................. Rep. 103-6 17-18, 103rd Cong., 1st Sess. .........................................................
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INTERESTS AND AUTHORITY AMICUS CURIAE
Judicial Watch, Inc. Judicial Watch amicus files this amicus curiae
brief under authority Federal Rule Appellate Procedure 29(a) support
Jon Husted, Ohio Secretary State, and urges this Court affirm the judgment
the district court. The parties have extended blanket consent the filing amicus
briefs, and pursuant the parties request Judicial Watch states that filing this
amicus curiae brief after the completion the parties briefing cycle.
Judicial Watch non-partisan foundation that seeks promote
transparency, integrity, and accountability government and fidelity the rule
law. furtherance these goals, Judicial Watch regularly files amicus curiae
briefs and prosecutes lawsuits relating election integrity and voting. 2012,
Judicial Watch filed federal lawsuit under Section the NVRA against Ohio
Secretary State Jon Husted, which alleged that Ohio had failed make
reasonable effort maintain the accuracy and currency its voter rolls
violation the NVRA. See Judicial Watch Husted, Civil Action No. 12-792
(S.D. Ohio 2012) (Complaint attached hereto Exh. A). The parties settled the
lawsuit, and agreed that Ohio would perform certain list maintenance practices party counsel authored the brief whole part; party party
counsel contributed money that was intended fund preparing submitting the
brief; and person other than the amicus curiae their counsel contributed
money that was intended fund preparing submitting the brief.
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through November 2018. See Settlement Agreement (attached hereto Exh. B). key provision the Settlement Agreement that Ohio will continue perform annual list maintenance Supplemental Mailing voters who have had
contact with Ohio election offices for two years. See Exh. Settlement
Agreement Section 2.i. Thus, Judicial Watch has particular interest the
issues stake here. the decision the district court reversed, and Ohio list
maintenance process invalidated, Ohio will forced violate the terms its
settlement agreement with Judicial Watch.
ARGUMENT
The district court determined correctly that Ohio voter list maintenance
practices not violate the National Voter Registration Act 1993, U.S.C.
20501, seq. NVRA Plaintiffs-Appellants claim that Ohio Supplemental
Process which confirmation notices are mailed persons who have not
engaged any voter activity for two years, and those voters are asked confirm
their registration status violates the NVRA. the district court concluded, this
Supplemental Process lawful under the plain language the NVRA. their
arguments the district court and appeal, the plaintiffs-appellants have
mischaracterized the NVRA include requirements that not exist the text
the statute. They are essentially asking the federal courts force Ohio comply
with the statute they want the NVRA be, not the statute that is. The district
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court refused read requirements and language into the NVRA that Congress
declined include, and this Court should the same. Ohio Supplemental Process Falls Squarely Within the Unambiguous
Language Section the NVRA.
The NVRA requires all states conduct program remove from their
registration lists the names voters who become ineligible due death
change residence. U.S.C. 20507(a)(4). Ohio uses its Supplemental
Process, which one part its overall list maintenance procedures, comply
with that federal mandate. Under this process, Ohio boards elections send
confirmation notice, forwardable mail, person who has not participated
any voter activity for two years, and ask that she confirm, either online
pre-paid postage, that she should still listed the voter rolls. Those
voters who not respond the confirmation notice are placed inactive list,
but their ability vote does not change that time. those voters who did not
respond the confirmation notice then fail vote the next two general federal
elections, one which necessarily presidential election, those voters are
dropped from the rolls. Thus, only when that person both (1) fails respond
Ohio also uses additional procedure maintain accurate rolls, which crossreferences the United States Postal Service national change address database
for voters who may have changed residence (the NCOA process). Plaintiffs
not challenge this aspect Ohio list maintenance system, and therefore Judicial
Watch does not address it. Ohio NCOA process follows the so-called safe
harbor set forth Subsection (c) Section
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general federal elections that she removed from the rolls. See U.S.C.
20507(d).
Subsections (b) and (d) Section the NVRA specifically permit Ohio
Supplemental Process. Subsection (b) provides relevant part:
(b) Confirmation voter registration
Any State program activity protect the integrity
the electoral process ensuring the maintenance
accurate and current voter registration roll for elections
for Federal office
(2) shall not result the removal the name any
person from the official list voters registered vote election for Federal office reason the persons
failure vote, except that nothing this paragraph
may construed prohibit State from using the
procedures described subsections (c) and (d)
remove individual from the official list eligible
voters the individual
(A) has not either notified the applicable registrar (in
person writing) responded during the period
described subparagraph (B) the notice sent the
applicable registrar; and then
(B) has not voted appeared vote more
consecutive general elections for Federal office. U.S.C. 20507(b)(2) (emphasis added). Subsection (d), referenced
Subsection (b)(2) exception that provision, provides follows:
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(d) Removal names from voting rolls
(1) State shall not remove the name registrant
from the official list eligible voters elections for
Federal office the ground that the registrant has
changed residence unless the
registrant
....
(B)(i) has failed respond notice described
paragraph (2); and (ii) has not voted appeared vote election during the period beginning the date the notice and ending the day after the date the
second general election for Federal office that occurs
after the date the notice. U.S.C. 20507(d).
Ohio Supplemental Process matches the process provided Subsection
(d). set forth above, the NVRA specifically excepts the procedure set forth
Subsection (d) from the language Subsection (b) that prohibits the removal
the name any person from the official list voters reason the person
failure vote. See 20507(b)(2) nothing this paragraph may construed
prohibit State from using the procedures described Subsection[] (d)
the district court concluded, the unambiguous text the NVRA specifically
permits the Ohio Supplemental Process. (Order, Doc. 66, Page 23017.)
Plaintiffs-Appellants argue that Ohio process unlawfully removes voters
from the rolls because they failed vote. There dispute that the NVRA
precludes the removal voters from the rolls the sole basis their failure
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vote. But despite the plaintiffs-appellants arguments the contrary, Ohio
Supplemental Process does not remove person name from its lists because the
person failed vote. set forth above, registrants are removed because they
failed respond the confirmation notice, coupled with the fact that they did not
participate the two federal general elections following the confirmation notice. the district court found, registrants are queried the basis their failure
vote, but not removed that basis. (Order, Doc. 66, Page 23016). Those
voters who not respond the confirmation notice remain eligible vote
without restriction for another four years. They are not turned away from the polls asked cast provisional ballot. The confirmation notice only affects the
recipient ability vote that person fails respond and fails vote the next
two federal general elections, one which presidential election. This process
takes six years complete. Voters are not being summarily removed from the
rolls because they failed vote; rather, Ohio following the very procedure
specifically permitted Subsection (d), set forth above.
The NVRA Does not Contain Trigger Requirement for the Process
set Forth Subsection (d).
Plaintiffs-Appellants, well the Department Justice amicus curiae,
insist that Ohio Supplemental Process violates the NVRA because uses
period voter inactivity the trigger send voters confirmation notice.
the district court pointed out, however, the NVRA does not place any
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preconditions the mailing confirmation notice, and does not contain any
trigger requirement. The NVRA does not mention explicitly implicitly
the events that need need not happen before state may initiate its confirmation
process. (Order, Doc. 66, Page 23016).
Nothing the text the NVRA prohibits Ohio from sending confirmation
notices persons who have not engaged voter activity for period two years.
While Plaintiffs-Appellants assert that this violates the NVRA, their argument
not based the text the statute, but rather their ideas about what the NVRA
should require. Plaintiffs-Appellants claim over and over throughout their brief
appeal that the state must have independent evidence that voter has moved
before can send her confirmation notice under Subsection (d), and that such
evidence must objective and reliable. (Appellants Principal Brief 19, 24,
28, 32). But nowhere does the text the NVRA use the term independent
evidence, reference such requirement. Likewise, DOJ argues that Section
8(d) requires some initial evidence that voter has moved, and that the evidence
must reliable. (DOJ Amicus Brief 8-9, 12-13, 17). The statute itself,
however, says nothing about triggering, anything about independent
initial reliable evidence. Plaintiffs-Appellants and the DOJ may believe
that the NVRA should contain such qualifications, but does not.
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Plaintiffs-Appellants well DOJ ask this Court determine
judicially that the NVRA contains obligations that are found nowhere text the
statute. Congress intended require that states always obtain independent
reliable evidence that voter has moved before mailing confirmation notice,
should have included that the statute. Even Congress intended require
lower standard, the NVRA could have simply stated that confirmation notice
under subsection (d) may sent voter after the State has received information
that the voter has changed residence. But the NVRA contains such language.
The word evidence does not even appear the text the statute with respect
the confirmation process. DOJ and Plaintiffs-Appellants assume that the safe
harbor process described Subsection (c), which relies information supplied the United States Postal Service, must matched some way before any
confirmation notice may sent voter. The NVRA simply does not require
this. Again, the statute could have included provision requiring that state must
have information indicating change residence before sends confirmation
notice, but does not. the contrary, the statute expressly permits the
Subsection (d) process that Ohio using.
This Court task construe what Congress has enacted, not what the
plaintiffs any party believe the statute should say. See Duncan Walker,
533 U.S. 167, 172 (2001) Our task construe what Congress has enacted.
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begin, always, with the language the statute (citing Williams Taylor, 529
U.S. 420, 431 (2000); Public Employees Retirement System Ohio Betts, 492
U.S. 158, 175 (1989); Watt Energy Action Ed. Foundation, 454 U.S. 151, 162
(1981)). The United States Supreme Court has repeatedly emphasized that
analysis statute begins with the text that statute. United States Gonzales,
520 U.S. (1997) Our analysis begins, always, with the statutory text.
United States Ron Pair Enterprises, Inc., 489 U.S. 235, 241 (1989) The task
resolving the dispute over the meaning statute] begins where all such
inquiries must begin: with the language the statute itself. (citing Landreth
Timber Co. Landreth, 471 U.S. 681, 685 (1985)). this case also where
the inquiry should end, for where, here, the statute language plain, the sole
function the courts enforce according its terms. Ron Pair
Enterprises, 489 U.S. 241 (quoting Caminetti United States, 242 U.S. 470,
485 (1917)) (emphasis added). Section simply does not place these
requirements, preconditions, the process set forth Subsection (d).
This Court should decline read these non-existent requirements into the statute. DOJ Arguments About the NVRA Requirements are not Entitled
any Special Weight Deference. explains its amicus curiae brief, the Department Justice has
authority enforce the NVRA. that capacity, DOJ has published guidance for
complying with the NVRA its website. its amicus brief, DOJ relies this
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guidance support its argument that Ohio list maintenance procedure violates
the NVRA. (DOJ Amicus Brief 19-20). clear, this guidance, which
issued the same office that submitted the amicus brief, not independent
authority for the position takes here. simply another statement the
Department current opinion about what required comply with the NVRA.
This Court not required give the guidance any special weight.
Nor DOJ entitled the same type deference this Court would give agency with actual rule-making authority. executive agency, DOJ
entitled make enforcement decisions based its interpretation the NVRA.
makes its position known through individual cases brought the federal courts,
which succeed fail their merits. DOJ not, however, entitled revise the
words statute impose its own obligations the states. does not have the
authority rewrite the NVRA conform its current policy views. Given that
DOJ does not have any administrative rule-making other quasi-legislative
authority under the NVRA, not entitled Chevron-type deference this
Court. See United States Philip Morris USA, Inc., 310 Supp.2d 68, n.5
(D.D.C. 2004).
Additionally, Judicial Watch pointed out its amicus brief the district
court, DOJ position the NVRA this case inconsistent with
enforcement action brought against the City Philadelphia under the NVRA
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2007. See United States City Philadelphia, al., Civil Action No. 06-4592
(E.D. Penn. 2007). the settlement agreement resolving DOJ claims, DOJ
required Philadelphia what now says Ohio may not. See DOJ Settlement
Agreement with Philadelphia 10-11, 16, Attachment DOJ Amicus Brief
(requiring the City mail confirmation notice voters they failed
participate election).3 its amicus brief this Court, DOJ submits that the Philadelphia
settlement was based unique circumstances, and that had agreed that
Philadelphia would essentially comply with Pennsylvania law, which permits the
use non-voting trigger the Section 8(d) process. (DOJ Amicus Brief 26).
But that also the case here: Secretary State Husted following Ohio law,
which uses this process effort maintain accurate voter rolls. DOJ does not
explain why Philadelphia was permitted conduct voter list maintenance pursuant state law that, DOJ view, violated the very federal statute had sued
Philadelphia enforce. DOJ further asserts that has never stated that
Pennsylvania law complies with Section the NVRA. Id. Then why did DOJ
enter into settlement agreement that required Philadelphia follow that process?
The fact that DOJ agreed resolve its enforcement action against Philadelphia
Indeed, under the agreement, Philadelphia was required send voters
confirmation notice the basis failure vote any election, which
stricter standard than Ohio two-year period.
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under those terms strong indicator that, least that time, DOJ considered
the process lawful. Ohio should likewise permitted follow its own state law,
which complies with the express language Subsections (b) and (d).
Regardless whether and how DOJ position Section may have
changed recent years, its interpretation the NVRA amicus this action
not necessary because the statute unambiguous. See Chevron U.S.A. Inc.
Natural Resources Defense Council, Inc., 467 U.S. 837, 842 843 (1984). This
Court should not base its decision upon DOJ changing interpretation the
NVRA. See Young United Parcel Service, 135 Ct. 1338, 1352 (2015)
(holding that the Court could not rely significantly agency determination
because its position was contrary inconsistent with previous government
statements the issue).4 Rather, the courts, well the states, should take the
only approach that will result consistent application the NVRA
requirements: apply the plain language the NVRA written. Under the
unambiguous language the NVRA, there specific evidentiary requirement precondition sending confirmation notice under Subsection (d). While the
DOJ current policy may that state should have independent reliable
The United States Supreme Court has held that the amount weight given
agency statutory interpretation depends upon, amongst other things, its
consistency with earlier and later pronouncements[.] Young, 135 S.Ct. 1351-52
(discussing Skidmore Swift Co., 323 U.S. 134, 140 (1944)). See also United
States Mead Corp., 121 S.Ct. 2164, 2171-74 (2001).
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evidence that the voter has changed residence before sends the voter mailing
asking her confirm her status, that requirement simply does not exist the
statute.5 This Court should decline read such obligation into the NVRA
where Congress did not include it. Ohio efforts maintain accurate voter
registration lists should not invalidated based DOJ current interpretation
the NVRA, which unsupported the plain language the statute.6 Ohio and Other States Must Maintain Accurate Voter Rolls Protect
the Integrity the Electoral Process Well Citizens Confidence
Elections.
The NVRA, well the Help America Vote Act 2002, U.S.C.
21083 seq., require that states maintain accurate voter rolls protect the
DOJ current view the NVRA set forth the Statement Interest filed Common Cause Kemp, Civil Action No. 1:16-cv-452-TCB (N.D. Ga. 2016)
(Attachment DOJ Amicus Brief). Judicial Watch addressed DOJ
Statement Interest detail its brief the district court this action. (Brief
Amicus Curiae Judicial Watch, Doc. 61, Page 22921-22). There, DOJ sought impose Georgia the non-existent obligation [f]irst gather reliable
evidence that the voter has become ineligible based change residence
before sending confirmation notice. (Stmt. Interest, DOJ Amicus Brief
Attachment 7). Judicial Watch pointed out the trial level, such
requirement found the text the NVRA.
The case law DOJ relies support its position consists dicta Third
Circuit case decided 2001 (prior the passage HAVA), which the plaintiff
did not even state claim under the NVRA. See Welker Clarke, 239 F.3d 596,
598-99 (3rd Cir. 2001). The dicta Welker has bearing this action. DOJ
also cites district court decision holding that California voter list maintenance
process, which not the same Ohio process, did not violate the NVRA. See
Wilson United States, Nos. 95-20042, 94-20860 (N. Cal. Nov. 1995). The
fact that California process satisfied the NVRA does not mean that Ohio
process illegal. Wilson has precedential value this case.
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integrity the electoral process. U.S.C. 20507(b); see also U.S.C.
21083(a)(4). The purpose these provisions prevent voter fraud. See
Rep. 103-6 17-18, 103rd Cong., 1st Sess. The maintenance accurate and upto-date voter registration lists the hallmark national system seeking
prevent voter fraud 147 Cong. Rec. H9290 (daily ed. Dec. 12, 2001) (statement Rep. Terry) (HAVA reforms would help states clean voter rolls, and thus
clean-up elections Voter fraud undoubtedly occurs, and [i]n close disputed
elections small amount fraud could make the margin difference. See
REPORT THE COMMISSION FEDERAL ELECTION REFORM, Jimmy Carter and
James Baker, III (Co-Chairs), Building Confidence U.S. Elections,
American University Center for Democracy and Election Management,
(Sept. 2005).7 Indeed, just recently the state Ohio, numerous elections have
been decided one vote.8 Thus, even small amount voter fraud could change
the outcome election. essential that Ohio and other states ensure that
The Carter-Baker Report available at: http://www.eac.gov/assets/1/AssetManager/
Exhibit%20M.PDF.
Secretary State Husted has released statistics showing that, 2013, local
races and eight local ballot issues Ohio were decided either one vote,
coin toss following electoral tie. See Press Release, Secretary State Husted
Reminds Ohioans: One Vote Matters, Ohio Secretary State Office (Jan. 13,
2013), available http://www.sos.state.oh.us/sos/mediaCenter/2014/2014-0113.aspx.
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only eligible voters are casting ballots protect the integrity the election
process.
Moreover, the federal list maintenance requirements also protect citizens
confidence that elections are conducted fairly and honestly. Citizens confidence the electoral process independent significance. Crawford Marion
County Election Bd., 553, U.S. 181, 197 (2008) public confidence the integrity the electoral process has independent significance, because encourages citizen
participation the democratic process See also Judicial Watch, Inc. King,
993 Supp. 919, 924 (S.D. Ind. 2012) (explaining that voters were injured
the state failure comply with the list maintenance provisions the NVRA
because that failure undermin[es] their confidence the legitimacy elections and thereby burden[s] their right vote
Plaintiffs-Appellants arguments this case imply that Ohio has gone out
its way purge thousands voters from its rolls. This simply not the case.
Ohio Supplemental Process one method through which the State complying
with the federal mandate maintain accurate voter registration lists. noted
above, Judicial Watch engages efforts across the country encourage states
comply with the NVRA and other voting statutes. Its consistent experience has
been that states not voluntarily conduct these types list maintenance
programs without prompting because the programs are burdensome and expensive.
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not doing could election decided fraud, loss voter confidence
the electoral system that the lifeblood our democracy. Ohio making
laudable efforts comply with the list maintenance provisions the NVRA
through its Supplemental Process, addition its other procedures. Federal law
requires it, and the integrity our electoral system depends it.
Plaintiffs-Appellants have not demonstrated that the NVRA prohibits Ohio
Supplemental Process. the contrary, falls squarely within the plain language the statute. The Court should find that Ohio Supplemental Process complies
with the NVRA and affirm the judgment the district court.
CONCLUSION
For the foregoing reason, amicus Judicial Watch respectfully request this
Court affirm the lower court decision.
Dated: July 27, 2016
Respectfully submitted, Lauren Burke
Robert Popper
Chris Fedeli
Lauren Burke
JUDICIAL WATCH, INC.
425 Third Street SW, Suite 800
Washington, 20024
(202) 646-5172
lburke@judicialwatch.org
Attorneys for Judicial Watch, Inc.
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CERTIFICATE COMPLIANCE
Pursuant Federal Rule Appellate Procedure 32(a)(7)(B), hereby
certify that this brief proportionally spaced, 14-point Times New Roman font.
Per Microsoft Word count, the brief contains 4,126 words excluding tables and
certificates.
Dated: July 27, 2016 Lauren Burke
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CERTIFICATE SERVICE AND ELECTRONIC FILING hereby certify, pursuant Fed. App. 25(d)(2), that electronically
filed the foregoing with the Clerk the United States Court Appeals for the
Sixth Circuit using the appellate CM/ECF system. certify that the parties the
case are registered CM/ECF users and that service will accomplished the
appellate CM/ECF service.
Dated: July 27, 2016 Lauren Burke
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Exh.
Case: 2:12-cv-00792-EAS-TPK Doc Filed: Filed: 07/27/2016 Page:
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08/30/12 Page: PAGEID THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OHIO
EASTERN DIVISION
JUDICIAL WATCH, INC., behalf certain its members; and
TRUE THE VOTE, its corporate
capacity,
Plaintiffs,
vs.
OHIO SECRETARY STATE
JON HUSTED, his official capacity,
Defendant.
Case No.: 2:12-cv-792
COMPLAINT
Plaintiffs Judicial Watch, Inc. and True the Vote, their attorneys, bring this action for
declaratory and injunctive relief and allege follows:
INTRODUCTION
Plaintiffs Judicial Watch, Inc. and True the Vote seek declaratory and injunctive
relief compel the State Ohio comply with its voter list maintenance obligations under
Section the National Voter Registration Act 1993 NVRA U.S.C. 1973gg-6.
JURISDICTION AND VENUE
This Court has jurisdiction over this matter pursuant U.S.C. 1331, the
action arises under the laws the United States, and under U.S.C. 1973gg-9(b)(2), the
action seeks injunctive and declaratory relief under the NVRA.
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Venue this Court proper under U.S.C. 1391(b), because substantial
part the events omissions giving rise the claim occurred this district.
PARTIES
Plaintiff Judicial Watch, Inc. Judicial Watch non-profit organization that
seeks promote integrity, transparency, and accountability government and fidelity the
rule law. Judicial Watch brings this action behalf its members who are registered
vote the State Ohio.
Plaintiff True the Vote True the Vote non-profit organization that seeks
restore truth, faith, and integrity local, state, and federal elections. True the Vote brings this
action its corporate capacity.
Defendant Jon Husted the Secretary State the State Ohio the
Secretary and has served this capacity since January 2011. Because the State Ohio has
designated the Secretary the chief State election official responsible for coordination its
responsibilities under the NVRA (see U.S.C. 1973gg-8, Plaintiffs Judicial Watch, Inc. and
True the Vote bring this action against the Secretary his official capacity.
FACTUAL BACKGROUND
Section the NVRA requires that [i]n the administration voter registration
for elections for Federal office, each State shall conduct general program that makes
reasonable effort remove the names ineligible voters from the official lists eligible voters reason (A) the death the registrant; (B) change the residence the registrant U.S.C. 1973gg-6(a)(4). Section the NVRA also mandates that any such voter list
maintenance programs activities shall uniform, nondiscriminatory, and compliance with
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the Voting Rights Act 1965 (42 U.S.C. 1973 seq.), among other important protections. U.S.C. 1973gg-6(b)(1).
Section the NVRA also requires that [e]ach State shall maintain for least years and shall make available for public inspection all records concerning the
implementation programs and activities conducted for the purpose ensuring the accuracy
and currency official lists eligible voters. U.S.C. 1973gg-6(i).
The most recent and reliable, publicly-available data regarding voting age
population and voting registration, county, for the State Ohio the 2010 Decennial U.S.
Census 2010 U.S. Census released the U.S. Government beginning February 2011,
and the voter registration data provided the State Ohio the U.S. Election Assistance
Commission EAC Report for the general election held November 2010, published
June 30, 2011. The 2010 U.S. Census contains data voting age population 2010,
county, for the State Ohio. The EAC report contains data the number persons the
voter registration rolls 2010, county, the State Ohio.
10.
Based examination the data the 2010 U.S. Census and the EAC
Report, the number individuals listed voter registration rolls the following three counties the State Ohio exceeds 100% the total voting age population these counties: Auglaize,
Wood, and Morrow. (And both Auglaize and Wood, the voter registration rolls exceed 105% total voting age population.) This data demonstrating the discrepancy voter registration
rolls total voting age population each these counties constitutes prima facie evidence that
the State Ohio has failed comply with its voter list maintenance obligations under Section the NVRA.
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11.
The data the 2010 U.S. Census and the EAC Report also shows that the
following thirty-one counties the State Ohio (in order highest lowest percentage) have
voter registration rolls that contain between 90% and 100% total voting age population:
Lawrence, Cuyahoga, Henry, Medina, Mahoning, Delaware, Putnam, Hancock, Fairfield,
Geauga, Van Wert, Lucas, Montgomery, Jackson, Ottawa, Stark, Hamilton, Miami, Franklin,
Gallia, Greene, Jefferson, Trumbull, Lorain, Wyandot, Athens, Harrison, Clermont, Licking,
Logan, and Erie Counties. This data further demonstrates that the State Ohio has failed
satisfy its voter list maintenance obligations under Section the NVRA.
12.
According the U.S. Census Bureau, the average rate voter
registration total voting age population during the presidential election year 2008
was 71%, yet Ohio, its counties have rate that exceeds 90%.
13.
The failure the State Ohio satisfy its voter list maintenance obligations
contributing larger, nationwide problem. According February 2012 study published
the non-partisan Pew Center for the States entitled Inaccurate, Costly, and Inefficient,
inaccurate voter registration lists are rampant across the United States. The Pew study found that
approximately million active voter registrations throughout the United States one out
every eight registrations are either longer valid are significantly inaccurate. The Pew
study also found that more than 1.8 million deceased individuals are listed active voters
nationwide, and that approximately 2.75 million people have active registrations more than
one state.
14. February 2012, Judicial Watch sent letter the Secretary notifying him
that the State Ohio was violation Section the NVRA and that, the chief State
election official the State Ohio, responsible for compliance with Section the
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NVRA. The letter explained that, according 2010 U.S. Census data and publicly available
voter registration data, the number individuals registered vote three counties the State Ohio exceeds those counties total voting age population. The letter identified each the
three counties name and informed the Secretary that lawsuit may brought against him
the State Ohio did not comply with its voter list maintenance obligations under Section
the NVRA.
15.
The letter also requested that the Secretary make available for public inspection
all records concerning the implementation programs and activities conducted for the purpose ensuring the accuracy and currency official lists eligible voters the State Ohio
during the past two years, explaining that Section the NVRA required such records
made available.
16.
The Secretary, through his Chief Legal Counsel, responded writing Judicial
Watch letter March 2012, stating share your concerns about the accuracy our
voting lists and identifying Directive, issued April 18, 2011, instructing the county boards elections procedures for conducting programs remove ineligible voters from the voter
rolls due changes registrant residence. The Secretary letter did not identify any efforts the State Ohio ensure that the county boards election were following the procedures
described the nearly one-year old directive. Nor did identify any other programs
activities undertaken the State Ohio remove ineligible voters from the voter rolls due
changes registrant residence. copy the Directive was included with the letter.
17.
The Secretary letter also did not identify any programs and activities undertaken the State Ohio remove ineligible voters from the voter rolls due the death the
registrant, any efforts instruct county boards election procedures for removing
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deceased registrants from the voter rolls. Nor did identify any other voter list maintenance
programs activities undertaken the State Ohio.
18. the letter, the Secretary asserted that the State Ohio efforts maintain
accurate voter rolls have been hampered the restrictions and seemingly inconsistent
provisions the NVRA and noted that had written letter U.S. Attorney General Eric
Holder discuss possible solutions, but had not received response.
19.
The only other document produced the Secretary with his letter was copy
the letter had sent Attorney General Holder, dated February 10, 2012. this letter
Attorney General Holder, the Secretary admitted that the State Ohio has not fulfilled its duty
under Section the NVRA make reasonable effort remove ineligible voters from its
voter rolls. The letter from the Secretary also acknowledged that the voter rolls for two counties the State Ohio contained more registered voters than the total voting age population those
counties.
20. the date this Complaint, further response from the Secretary his
office has been received the Plaintiffs. Nor has the Secretary produced any additional
documents regarding any other voter list maintenance programs activities undertaken the
State Ohio.
21. light the Secretary letter and the lack any further response from the
Secretary, any further efforts secure compliance with Section the NVRA would futile.
PLAINTIFF JUDICIAL WATCH
22.
Judicial Watch has approximately 9,480 members the State Ohio.
membership organization, Judicial Watch represents the interests these members, least some
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the right vote elections for federal office.
23. person becomes member Judicial Watch making financial
contribution, any amount, the organization. The financial contributions members are
far the single most important source income Judicial Watch and provide the means
which the organization finances its activities support its mission. Each Judicial Watch
9,480 members the State Ohio has made least one financial contribution Judicial
Watch over the past two years and thus helped finance the activities the organization during
this time period.
24.
Judicial Watch also solicits the views its members carrying out its activities support its mission, including the views its members the State Ohio. The views
Judicial Watch members exert significant influence over how Judicial Watch chooses the
activities which engages support its mission.
25.
Over 100 members Judicial Watch who are lawfully registered vote the
State Ohio have informed Judicial Watch that they are concerned about the State Ohio
failure satisfy its voter list maintenance obligations under Section the NVRA and wish
Judicial Watch take action their behalf protect their right vote. The views these
members were substantial factor weighing favor the initiation this lawsuit.
26.
Protecting the rights members Judicial Watch who are lawfully registered
vote the State Ohio directly germane Judicial Watch mission promoting integrity,
transparency, and accountability government and fidelity the rule law, ensuring
compliance with the voter list maintenance obligations Section the NVRA and protecting
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the integrity the election process general. also well within the scope the reasons why
members Judicial Watch join the organization and continue support its mission.
27.
Members Judicial Watch who are lawfully registered vote the State
Ohio not only have the constitutional right vote elections held the State Ohio,
including elections for federal office, but they also have statutory right the safeguards and
protections set forth the NVRA, including the voter list maintenance obligations Section the NVRA.
28.
The failure the State Ohio satisfy its voter list maintenance obligations
under Section the NVRA injuring the right vote members Judicial Watch who are
lawfully registered vote the State Ohio. More specifically, burdening members
constitutional right vote undermining their confidence the integrity the electoral
process and discouraging them from voting. Because the State Ohio has failed and failing satisfy its list maintenance obligations under Section the NVRA, lawfully registered
voters, including members Judicial Watch, are being deprived any certainty that their votes
will given due weight and will not cancelled out the votes persons who are not
entitled vote and therefore are being injured.
29.
The failure the State Ohio satisfy its voter list maintenance obligations
under Section the NVRA also harming the statutory rights members Judicial Watch
who are lawfully registered vote the State Ohio. Specifically, because these members
have registered vote the State Ohio, they have statutory right vote elections for
federal office that comply with the procedures and protections required the NVRA, including
the voter list maintenance obligations set forth Section the NVRA. The State Ohio
failure satisfy its voter list maintenance obligations under Section the NVRA therefore
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injuring the statutory rights members Judicial Watch who are lawfully registered vote
the State Ohio.
30.
Absent action Judicial Watch, unlikely that any individual member
Judicial Watch who lawfully registered vote the State Ohio would have the ability
the resources take action protect his her rights redress his her injuries with respect the State Ohio failure satisfy its voter list maintenance obligations under Section
the NVRA.
PLAINTIFF TRUE THE VOTE
31.
True the Vote regularly obtains official lists registered voters from States
across the nation, including the State Ohio, and uses these lists conduct programs
furtherance True the Vote mission restoring truth, faith, and integrity local, state, and
federal elections. Because True the Vote makes use these lists conducting its various
programs, relies States, including the State Ohio, provide lists that are reasonably
accurate and current and reasonably maintained.
32.
One such program True the Vote seeks analyze and verify official lists
registered voters and detect errors those lists. More specifically, True the Vote trains
volunteers review voter lists and compare those lists other publically available data.
When volunteer identifies registrations that appear duplicates registrations persons
who are deceased, have relocated, otherwise are ineligible vote particular jurisdiction,
those registrations are flagged and complaints are filed with appropriate elections officials. The
goal this particular program improve the accuracy and currency voter lists above and
beyond the minimum requirements the law. This program among the largest, not the
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largest, all True the Vote various programs and essential, integral part True the
Vote mission.
33. part its voter list verification program, True the Vote obtained voter lists
from the State Ohio, recruited and trained volunteers analyze and verify these lists, and
began the process analyzing and verifying them.
34.
The failure the State Ohio satisfy its voter list maintenance obligations
under Section the NVRA has injured and injuring True the Vote. Because the State
Ohio has failed satisfy its voter list maintenance obligations, the voter lists that True the Vote
obtained from the State Ohio are inaccurate and out date, making more difficult for True
the Vote use these lists furtherance its mission than would have been the State
Ohio had satisfied its voter list maintenance obligations under Section the NVRA. True the
Vote has suffered injury result.
35. addition, the failure the State Ohio satisfy its voter list maintenance
obligations under Section the NVRA has injured and injuring True the Vote impairing
True the Vote ability achieve essential, integral part its mission, namely, its voter list
verification program. True the Vote voter list verification program relies the States
conduct the reasonable voter list maintenance programs and activities required Section
the NVRA. The goal True the Vote voter list verification program improve the
accuracy and currency voter lists above and beyond the minimum requirements the law.
True the Vote non-for-profit, volunteer efforts supplement the voter list maintenance programs
and activities required the States under Section the NVRA, but cannot duplicate
replace the States taxpayer-funded voter list maintenance programs and activities. Because the
State Ohio has failed satisfy its voter list maintenance obligations under Section the
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NVRA, True the Vote impaired its ability carry out its voter list verification program
successfully the State Ohio and injured result.
36.
Moreover, the State Ohio failure satisfy its voter list maintenance
obligations under Section the NVRA also has injured and injuring True the Vote
causing divert resources away from other programs order devote those same resources its voter list verification program. For example, among its various programs restore
election integrity, True the Vote trains and mobilizes volunteers work election monitors. part this program, True the Vote creates instructional videos recruit election monitors,
holds training sessions and produces reference guides educate election monitors, and directs
volunteers who wish serve election monitors appropriate channels. Because the State
Ohio failed satisfy its voter list maintenance obligations under Section the NVRA, True
the Vote has had expend less its scarce resources programs such its election
monitoring program order expend more resources its voter list verification program.
37. August 10, 2012, True the Vote has expended over 150 hours
organizational time training volunteers analyze and verify the voter lists that True the Vote
obtained from the State Ohio for True the Vote voter list verification program. this
same date, True the Vote has only expended approximately hours support its election
monitoring program the State Ohio. True the Vote estimates that, due the failure the
State Ohio satisfy its voter list maintenance obligations under Section the NVRA, has
diverted approximately 100 hours organizational time away from its election monitoring
program order devote those same scarce resources its voter list verification program,
causing injury True the Vote result.
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CLAIM FOR RELIEF
(Violation the NVRA: Failure Conduct List Maintenance)
38.
Plaintiffs reallege paragraphs through fully stated herein.
39.
Defendant has failed fulfill the State obligation make reasonable efforts
remove the names ineligible voters from Ohio voter registration rolls, violation Section NVRA (42 U.S.C. 1973gg-6).
40.
Plaintiff True the Vote and members Plaintiff Judicial Watch have suffered
irreparable injury direct result Defendant failure fulfill the State Ohio obligation make reasonable efforts remove the names ineligible voters from Ohio voter
registration rolls violation Section the NVRA.
41.
Plaintiff True the Vote and members Plaintiff Judicial Watch will continue
suffer irreparable injury Defendant failure fulfill the State Ohio obligation make
reasonable efforts remove the names ineligible voters from Ohio voter registration rolls
violation Section the NVRA unless and until Defendant enjoined from continuing
violate the law.
42.
Plaintiff True the Vote and members Plaintiff Judicial Watch have adequate
remedy law.
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PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray for entry judgment:
Declaring Defendant violation Section the NVRA;
Enjoining Defendant from failing refusing comply with the voter list
maintenance obligations Section the NVRA the future;
Ordering Defendant pay Plaintiffs reasonable attorney fees, including
litigation expenses and costs, pursuant U.S.C. 1973gg-9(c); and
Granting Plaintiffs any and all further relief that this Court deems just and proper.
Dated: August 30, 2012
Respectfully submitted,
Paul Orfanedes*
Chris Fedeli*
JUDICIAL WATCH, INC.
425 Third Street S.W., Ste. 800
Washington, 20024
Tel: (202) 646-5172
Fax: (202) 646-5199
Email: porfanedes@judicialwatch.org
cfedeli@judicialwatch.org Counsel: Christian Adams
ELECTION LAW CENTER, PLLC
300 Washington Street, Ste. 405
Alexandria, 22314
/s/ David Langdon
David Langdon (OH Bar No. 0067046)
Trial Attorney
Joshua Bolinger (OH Bar No. 0079594)
LANGDON LAW LLC
8913 Cincinnati-Dayton Rd.
West Chester, Ohio 45069
Tel: (513) 577-7380
Fax: (513) 577-7383
Email: dlangdon@langdonlaw.com
jbolinger@langdonlaw.com
Attorneys for Plaintiffs
*pending admission pro vac vice
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Exh.
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SETTLEMENT AGREEMENT
This settlement agreement (the Agreement) entered into January .l.Q_, 2014 (the
Effective Date) and between Judicial Watch, Inc. and True the Vote (collectively,
Plaintiffs) and Ohio Secretary State Jon Husted, his official capacity (Defendant).
Plaintiffs and Defendant (together, the Parties) are parties litigation captioned Judicial
Watch, Inc. and True the Vote Husted, Case 2:12-cv-00792, which was filed the United
States District Court for the Southern District Ohio August 30, 2012 (the Litigation).
RECITALS
WHEREAS, the claims the Litigation arise under the National Voter Registration Act 1993 (the NVRA);
WHEREAS, Ohio Secretary State Jon Husted, his official capacity, designated the
chief State election official, pursuant U.S.C. 1973gg-8, and responsible for
coordination the States responsibilities under the NVRA;
WHEREAS, Plaintiffs maintain that judgment their favor, including the items
contained the complaints Prayer for Relief, appropriate;
WHEREAS, Defendant disputes the allegations contained the complaint and denies
any and all liability thereunder;
WHEREAS, notwithstanding the foregoing, both Parties desire settle the Litigation;
NOW THEREFORE, the spirit cooperation and comity and avoid the expense
and time and the inherent risks associated with further proceedings related the Litigation, both
the Plaintiffs and the Defendant, and through the undersigned counsel, hereby agree,
consideration the mutual promises contained this Agreement, and other good and valuable
consideration, the receipt and sufficiency which hereby acknowledged, abide the
following terms and conditions.  Within days the execution the Agreement, the Parties shall execute and file
stipulation dismissal containing the following substantive language:
Pursuant Rule 4l(a)(l)(AXii) the Federal Rules Civil Procedure, plaintiffs
Judicial Watch, Inc. and True the Vote and defendant Jon Husted, his official
capacity Secretary State Ohio, hereby stipulate the dismissal this action
with prejudice, and without costs fees either party. the event that the Court (including the Clerk) rejects such filing for any reason, the
Parties shall both use their best efforts accomplish the same result another
stipulation amending that language little possible, filing unopposed
motion for voluntary dismissal upon the same terms, taking such other steps
may reasonably necessary. filing seeking dismissal the terms set forth
above not executed the Parties and filed with the Court within days the
Effective Date, such dismissal not granted the Court within months, this
agreement shall cancelled.
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During the pendency the filing granting such stipulation other
comparable motion, neither party shall file any other motion seek any other
court relief, fulfill, seek have fulfilled, any discovery other obligation
related the Litigation, except set forth paragraph .b. the event that the Court, prior the dismissal this action, requests any
action Plaintiffs Defendant, the Parties agree notify the Court that
settlement has been reached and jointly request that such action cancelled.
The Parties agree file any ancillary stipulations motions required the
Court circumstances order ensure that further obligations related
the Litigation are imposed the Parties.  Defendant agrees, for the duration the term the Agreement, undertake, or, where
appropriate, continue undertake, the following actions: participate the State and Territorial Exchange Vital Events (STEVE)
administered the National Association for Public Health Statistics and
Information Systems (NAPHSIS) obtain out-of-state death information for list
maintenance purposes under the NVRA, with monthly updates local officials
for death removals the Statewide Voter Registration Database (SWVRD). participate the Interstate Voter Registration Cross-Check program
administered the Kansas Secretary State identify registered voters who
move out-of-state for list maintenance purposes under the NVRA. use Ohio Bureau Motor Vehicles data identify registered voters who
move within Ohio for list maintenance purposes compliance with Section
the NVRA, with updates local officials for removals address-changes the
SWVRD less frequently than permitted state law. use online voter registration change address encourage voters keep
their registration information current. conduct its monthly duplicate registration elimination program using SWVRD,
including minimal monthly duplicate thresholds greater than .030% for all
Ohio County Boards Election voter lists. keep online, and available for public access, current voter registration list. require the county boards election send accurate survey information
the Secretary States Office compiled and forwarded the Election
Assistance Commission for its NVRA-related surveys. use reasonable efforts promote the expanded use Ohios voter registration
online change address system recent college graduates, including education
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information current and request necessary updates, and endeavor
coordinate these activities conjunction with Ohio colleges and universities. direct boards elections send confirmation notices annually voters who:
(a) did not vote election during two year period beginning and ending May and (b) did not engage any other voter-initiated activity (e.g., filing voter
registration fonn) during that same time period; and also query boards
elections reasonably regular basis whether this direction being
followed.  Plaintiffs may ask Defendant for reasonable, non-burdensome assurances that any one
more the terms the Agreement
are
being performed, means letter, sent
email fax. Defendant shall not unreasonably refuse provide such assurances.
Plaintiffs shall not send more than one such letter any three-month period the
Agreement. Ongoing negotiations concerning how particular request for assurance
shall provided, whether has been provided, shall not count separate requests for
assurances. the event that either party believes that the Agreement has been breached the other
party, the party asserting breach shall send letter, email fax, the other party
describing the alleged breach. Neither pa11y shall commence lawsuit alleging breach
this Agreement until days has elapsed from the time that the party seeking
commence such lawsuit has sent such letter.
This agreement shall expire November 10, 2018.  Both the Plaintiffs and Defendant, including any successor the office Secretary
State, any successor chief State election official under the NVRA and State law,
shall bolllld the terms this agreement during that time.  The Agreement shall contain the entire agreement between the parties and shall supersede
all prior written and oral agreements, representations, negotiations, promises, and
understandings between them.  The Agreement may amended only writing signed both the Parties. The
Parties agree receive and discuss all possible amendments the Agreement proposed good faith either party, and negotiate concerning such possible amendments
good faith. The Parties further agree not unreasonably withhold their consent
proposed amendment addressing unanticipated change circumstances that has
rendered one more the terms the Agreement unduly burdensome.  The Parties each agree not publicly disparage the other with respect the Parties
conduct decisions regarding the commencement the Litigation, the prosecution
defense the Litigation, the termination and settlement the Litigation.
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Filed: 07/27/2016 The Agreement may executed counterparts, and faxed emailed signature sha11 deemed valid
original.
11. Nothing this Agreement shall deemed admission regarding the merits the
Litigation.
BY:
Robert Popper
Chris Fcdeli
JUDICIAL WATCH, INC.
425 Third Street S.W., Ste. 800
Washington, 20024 Christian Adams
ELECTION LAW CENTER, PLLC
300 Washington Street, Ste. 405
Alexandria, 22314
David Langdon
Joshua Bolinger
LANGDON LAW LLC
8913 Cincinnati-Dayton Rd,
West Chester, Ohio 45069 Beha(fofPlaintijJo; Judicial Watch, Inc.,
and True the Vote
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OHIO SECRETARY STATE JON
HUSTED
__,_
By:
-.._,; ()I;(.,/i
./vC
Jack Christopher
Deputy Secretary State and
Chief Legal Counsel
180 Broad Street, 15th Floor
Columbus, Ohio 43215 behalfofDefendant Ohio Secretary
State Jon Husted
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