Skip to content

Judicial Watch • Summary Judgement Brief (JW and True the Vote v. King et. al. 12-cv-00800)

Summary Judgement Brief (JW and True the Vote v. King et. al. 12-cv-00800)

Summary Judgement Brief (JW and True the Vote v. King et. al. 12-cv-00800)

Page 1: Summary Judgement Brief (JW and True the Vote v. King et. al. 12-cv-00800)

Category:Legal Document

Number of Pages:30

Date Created:October 11, 2013

Date Uploaded to the Library:October 21, 2013

Tags:Indiana NVRA, True the Vote, JW and True the Vote v. King et. al, election integrity project


File Scanned for Malware

Donate now to keep these documents public!

  • demand_answers

See Generated Text   ˅

Autogenerated text from PDF

Case 1:12-cv-00800-WTL-TAB Document Filed 10/11/13 Page PageID 335 THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT INDIANA
INDIANAPOLIS DIVISION
JUDICIAL WATCH, INC., and
TRUE THE VOTE,
Plaintiffs, BRADLEY KING, TRENT DECKARD,
and CONNIE LAWSON, their official
capacities,
Defendants.
___________________________________
Case No. 1:12-cv-800-WTL-TAB
PLAINTIFFS BRIEF SUPPORT MOTION FOR SUMMARY JUDGMENT
AND STATEMENT MATERIAL FACTS NOT DISPUTE
Plaintiffs Judicial Watch, Inc. Judicial Watch and True the Vote, counsel and
pursuant Rule the Federal Rules Civil Procedure and Local Rule 56-1, respectfully
submit this Brief Support Motion for Summary Judgment and Statement Material Facts
Not Dispute SOF set forth herein, Defendants have violated Section the National
Voter Registration Act, and Plaintiffs are entitled judgment matter law all counts
their Complaint.
Background the National Voter Registration Act
The National Voter Registration Act 1993 NVRA was enacted pursuant the
Elections Clause the United States Constitution, which gives Congress the power regulate
the times, places, and manners holding federal elections. U.S. Constitution, art. cl.
ACORN Edgar, F.3d 791, 794 (7th Cir. 1995). Specifically, the Elections Clause gives
Congress the power make amend laws for the election federal officials, and the states
must implement and comply with those laws. Edgar, F.3d 794-795. Unlike most
Case 1:12-cv-00800-WTL-TAB Document Filed 10/11/13 Page PageID 336
Supremacy Clause cases, which there presumption against federal preemption, the
Elections Clause creates the unique presumption that Congress intended federal election statutes preempt alter state election laws. Arizona Inter Tribal Council Ariz., Inc., 133 Ct.
2247, 2256-2257 (2013); Edgar, F.3d 794.
The NVRA was enacted part protect the integrity the electoral process and
 ensure that accurate and current voter registration rolls are maintained. U.S.C. 1973gg6(b); see H.R. Rep. No. 103-9, 103rd Cong., 1st Sess., 56-6 (1993). Section the NVRA
requires each state conduct general program that makes reasonable effort remove the
names ineligible voters from the official lists eligible voters reason the registrant
death change residence. U.S.C. 1973gg-6(a)(4). The NVRA directs each state
designate State officer employee the chief State election official responsible for
coordination State responsibilities under this subchapter. U.S.C. 1973gg-8.1
enacting the NVRA, both houses Congress specified that the term coordinate the NVRA
means that each state would have designate chief state official responsible for
implementing the state functions under the bill. Rep. 103-6, 39; H.R. Rep. 103-9, 23,
1993 U.S.C.A.A.N. 105, 127.
These state functions include conducting the general programs list maintenance
required the NVRA. the U.S. Court Appeals for the Eighth Circuit has held, state
obligation conduct these list maintenance programs both active one and nondelegable one:
Indiana has designated the two co-directors its Election Division jointly
responsible for NVRA coordination. 2013, the co-directors fail conduct voter list
maintenance disagree necessary expenditure, then the secretary state becomes the
responsible official. Ind. Code Ann. 3-7-11-1, 3-6-4.2-3, 3-7-38.2-16(a), 3-7-38.2-18.
 
Case 1:12-cv-00800-WTL-TAB Document Filed 10/11/13 Page PageID 337
Nonetheless, this conduct terminology clearly envisions Missouri will actively
oversee the general program. After all, the term conduct active verb,
encompassing the concept providing leadership. See Webster Third New
Int Dictionary 474 (1993) (defining the term meaning, inter alia, bring leading lead commander have the direction
direct leader the performance execution and act leader
director Under the NVRA plain language, Missouri may not delegate the
responsibility ... local official and thereby avoid responsibility.
U.S. Missouri, 535 F.3d 844, 850 (8th Cir. 2008). Accordingly, state must actively lead,
direct, and oversee the list maintenance efforts required the NVRA. Id. 850-51. result, state list maintenance obligations under the NVRA are not satisfied
merely offering guidance training local election officials. Rather, state must provide both
active leadership and direction and exercise effective oversight. If, the course overseeing
the actions local election officials, state chief election officials discover that voter lists are
not being maintained properly, the NVRA requires that the state officials take corrective action:
For instance, the district court determines lack [Local Election Official]
compliance renders Missouri efforts conduct general program unreasonable, could order Missouri either (1) develop different improved methods for
encouraging LEA compliance, (2) assume direct responsibility for some all the activities needed remove ineligible voters from the voter rolls (i.e., cease
delegating NVRA responsibilities the non-complying LEAs).
Id. 851.
The states voter list maintenance obligations under NVRA Section were clarified and
elaborated upon the Help America Vote Act HAVA which was enacted 2002. After
the 2000 election, Congress became concerned that the states were not complying with NVRA
Section 8.2 Accordingly, Congress clarified how and what extent the states were required
148 Cong Rec. 10488, 10490 (daily ed. October 16, 2002) (statement Senator
Dodd) The authors this bill found that voter rolls across the country are inaccurate very
poor order, the condition many jurisdictions, particularly the large jurisdictions, are state crisis. Voter lists are swollen with the names people who are longer eligible vote
that jurisdiction, are deceased are disqualified from voting for another reason. has been
 
Case 1:12-cv-00800-WTL-TAB Document Filed 10/11/13 Page PageID 338
perform the voter list maintenance activities that they were obligated perform under NVRA
Section See U.S.C. 15483(a)(2)(A)(i), 15483(a)(2)(A)(ii) (citing U.S.C. 1973gg6), and 15483(a)(4)(A) (citing the voter registration list removal requirements U.S.C. 
1973gg seq.). HAVA specifically requires that each state create single, uniform, official,
centralized, interactive, computerized statewide voter registration list defined, maintained, and
administered the State level. See U.S.C. 15483(a)(1)(A). HAVA also requires that
these computerized lists maintained regular basis, specifies how this maintenance must performed, and mandates that states election systems shall include provisions ensure that
voter registration records the State are accurate and updated regularly, including [a] system file maintenance that makes reasonable effort remove registrants who are ineligible
vote from the official list eligible voters. U.S.C. 15483(a)(2) and (a)(4).3
Finally, NVRA Section also requires that states 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).
 
 
found that 650,000 people this country are registered more than one State. October
2002, 60,000 people were registered Florida and least one other state. St. Louis County,
some 30,000 people were registered vote the county and least one other county the
State.
Defendants may argue that HAVA provides private right action. While this may
true (see Brunner Ohio Republican Party, 555 U.S. (2008)), also irrelevant. Plaintiffs not allege violation HAVA. Instead, Plaintiffs note that HAVA provides insight into the
requirements NVRA Section because Congress enacted HAVA counterpart NVRA
and the two statutes are intertwined, contain numerous cross-references, and impose overlapping
obligations. Consequently, the Court may look HAVA discern the states obligations under
NVRA Section
 
Case 1:12-cv-00800-WTL-TAB Document Filed 10/11/13 Page PageID 339
Case Background and History
This Court has seen this problem before, unfortunately. Indiana has history failing
comply with its voter list maintenance obligations. 2006, the United States brought suit
against Indiana over Indiana failure comply with its NVRA Section obligations. The
lawsuit, U.S. State Indiana, al., Case No. 1:06-cv-01000-RLY-TAB (S. Ind.), resulted 2006 Consent Decree requiring Indiana take specific actions remedy its failure
comply with its voter list maintenance obligations. The Consent Decree required Indiana
conduct all voter list maintenance activities required both the NVRA and HAVA and
exercise oversight ensure that all Indiana counties carried through these maintenance
activities removing the names voters whose ineligibility had been verified. Sadly, Indiana
abandoned most these efforts when the Consent Decree expired 2009. SOF 24-25, 3031. 2010, Indiana failure comply with its voter list maintenance obligations had
resulted the state voter registration rolls being inaccurate and out date. SOF 5-7.
comparison 2010 U.S. Census data and 2010 voter registration data from the U.S. Election
Assistance Commission EAC reveals that voter registration rolls for Indiana counties
contain more registered voters than the Total Voting Age Population TVAP those
counties. SOF voter registration rolls are being maintained properly, highly
unlikely that the number voters the rolls for any particular county would exceed the
number voting-age individuals living the county. This same comparison the number
registered voters and TVAP reveals that the number registered voters the voter rolls for
another Indiana counties equal between 90% and 100% those counties TVAPs. SOF These numbers are significantly excess the average rate voter registration the
 
Case 1:12-cv-00800-WTL-TAB Document Filed 10/11/13 Page PageID 340
United States and also indicate lack proper voter list maintenance. SOF 6-7.
Because Indiana voter registration rolls are obviously inaccurate and out date,
Plaintiffs brought this lawsuit compel Indiana comply with its voter list maintenance
obligations under NVRA Section
Summary Judgment Standard
Summary judgment appropriate when the Court, view the complete record, finds
that there genuine dispute material fact and that the moving party entitled judgment matter law. See Fed. Civ. 56(a); Anderson Liberty Lobby, Inc., 477 U.S. 242,
248-50 (1986).
STATEMENT MATERIAL FACTS NOT DISPUTE
The Structure Indiana Elections Bureaucracy.
The Indiana Election Division led two co-directors, one from each major
political party, required Indiana law. Appx. Exh. 10, Co-Directors First Interrogatory
Responses, Response pp. 10-11.
During the relevant time period, the two Election Division co-directors must both
have been agreement order for Indiana initiate voter list maintenance programs, and
conversely, either Co-Director could veto the undertaking voter list maintenance program.
Appx. Exh. 10, Co-Directors First Interrogatory Responses, Response 14, 13.
Co-Director Trent Deckard and his Democrat co-director predecessors have
frequently disagreed with Republican Co-Director Bradley King concerning voter list
maintenance, preventing Indiana from initiating numerous voter list maintenance programs.
Appx. Exh. Deckard Tr. 19:25 20:7, 20:8 14; Appx. Exh. King Tr. 13:13 14:1,
 
Case 1:12-cv-00800-WTL-TAB Document Filed 10/11/13 Page PageID 341
18:12 32:7, 42:4 43:14, 49:17 51:9, 65:11 66:8, 77:1 78:6, 87:11 89:23, 89:24
91:8, 92:2 12, 92:13 93:3.
Indiana has taken mostly passive approach voter list maintenance, even
though states are required actively lead, direct, and oversee list maintenance program under
the NVRA. Appx. Exh. Karen Handel Expert Report 39.
The Inaccuracy Indiana Voter Registration Rolls. comparison 2010 U.S. Census data and 2010 U.S. EAC data shows that
Indiana counties have voter registration rolls that exceed 100% TVAP those counties and
that another Indiana counties have voter registration rolls that contain between 90% and 100% TVAP. Appx. Exh. Handel Report 13-14, 19; Appx. Exh. Steven Camarota
Declaration and Attach.
The 2010 EAC data shows that Indiana voter rolls have high ratios
registrations TVAP statewide basis, higher than the national averages several
percentage points every category. Appx. Exh. Handel Report 16-17. Appx. Exh. EAC
Report.
The 2010 Census data and 2010 EAC data demonstrate that Indiana voter
registration rolls are substantially inaccurate and out date, indicating that additional efforts
maintain the accuracy the rolls are necessary. Appx. Exh. Handel Report pp. 19-20, 26.
Co-Directors Deckard and King were aware data indicating that Indiana voter
registration rolls were inaccurate and out date. Appx. Exh. Deckard Tr. 66:9 67:10,
273:25 274:21; Appx. Exh. King Tr. 34:3 15.
Upon becoming aware that Indiana voter registration rolls were inaccurate and
out date, Co-Directors Deckard and King did not institute any new list maintenance programs
 
Case 1:12-cv-00800-WTL-TAB Document Filed 10/11/13 Page PageID 342 activities remedy the voter rolls inaccuracies. Appx. Exh. King Tr. 79:6 81:7;
Appx. Exh. Co-Directors Second Interrogatory Responses, Response No. pp. 6-7.
10.
Both the poor condition Indiana voter rolls, and the failure Co-Directors
Deckard and King institute any new list maintenance programs activities upon learning
these inaccuracies, are factors that render Indiana voter list maintenance efforts unreasonable
under industry standards applicable election administration. Appx. Exh. Handel Report
41-42.
Indiana Lack Effort Identify and Remove Deceased Voters Voters
Who Have Become Ineligible Due Relocation.
11.
Although the Indiana Department Health DOH required Indiana law obtain out-of-state death information from other states for purposes assisting the Election
Division maintain the voter registration rolls, Co-Director Deckard does not supervise
coordinate DOH efforts. does not know and has not asked whether DOH has obtained the
required out-of-state death information for voter list maintenance purposes. Appx. Exh.
Deckard Tr. 121:10 123:11; Appx. Exh. King Tr. 16:4 11, 40:14 20.
12.
DOH only obtained out-of-state death information for list maintenance purposes
within the past year entering the State and Territorial Exchange Vital Events STEVE
and Electronic Verification Vital Events EVVE interstate systems, and previously failed
comply with Indiana law this regard. Appx. Exh. King Tr. 16:2 16, 40:14 20.
13.
Indiana failed obtain national Social Security Death Index SSDI data from
the Social Security Administration SSA order identify and remove deceased voters from
Indiana voter registration rolls. Appx. Exh. 10, Co-Directors First Interrogatory Responses,
Response
 
Case 1:12-cv-00800-WTL-TAB Document Filed 10/11/13 Page PageID 343
14.
Although Co-Director Deckard spent year investigating the feasibility
obtaining SSDI data for voter list maintenance purposes, failed make final decision about
whether obtain the data and never even learned what obtaining the SSDI data from SSA would
cost the state. Appx. Exh. Deckard Tr. 110:6 114:14, 281:10 284:22.
15.
Indiana failed obtain the SSDI data for voter list maintenance purposes because lack agreement, since 2004, between the Democrat and Republican co-directors the
Election Division about whether so. Appx. Exh. King Tr. 92:2 12.
16.
Indiana failed obtain the National Change Address NCOA database from
the U.S. Postal Service USPS because lack agreement between the Democrat and
Republican co-directors the Election Division about whether so. Appx. Exh. King Tr. 42:4 43:14.
17.
Obtaining the NCOA database from the USPS would have helped Indiana
identify voters who had relocated either within Indiana out-of-state and would have helped
Indiana remove such ineligible voters from the voter registration rolls. Appx. Exh. King Tr. 42:4 43:14.
18.
Indiana failed enter the Interstate Voter Registration Cross-Check IVRC
program because lack agreement between the Democrat and Republican co-directors
the Election Division about whether so, and also failed obtain the Systematic Alien
Verification for Entitlements SAVE database. Appx. Exh. King Tr. 92:13 93:3;
Appx. Exh. 10, Co-Directors First Interrogatory Responses, Responses and pp. 8-9.
19.
Entering the IVRC program would have helped Indiana identify voters who had
relocated out-of-state, and would have helped Indiana remove such ineligible voters from the
voter registration rolls. Appx. Exh. King Tr. 28:21 29:16.
 
Case 1:12-cv-00800-WTL-TAB Document Filed 10/11/13 Page PageID 344
20.
Co-Director King held discussions with local election officials and determined
that Indiana counties bordering other states had the worst voter list maintenance problems due general failure adequately identify voters who had died out-of-state relocated out-of-state.
Appx. Exh. King Tr. 86:6 87:9.
21. local election official cannot effectively undertake efforts maintain voter
registration rolls without the coordination and active participation many separate
Indiana state offices and local election officials all Indiana counties, each which must
provide quality information about voters who have died relocated. Appx. Exh. Warrick
County Election Official Sarah Redman Tr. 66:23 68:2; Appx. Exh. St. Joseph County
Election Official Francisco Fotia Tr. 27:11 28:16, 63:23 64:11; Appx. Exh. St. Joseph
County Election Official Terrence Coleman Tr. 114:21 115:6.
Indiana Insufficient Oversight Local Election Officials.
22.
Despite having tools available direct, lead, and actively oversee local
election officials performance voter list maintenance tasks, Indiana failed make use
these tools. Appx. Exh. Handel Report 37-40; Appx. Exh. King Tr. 54:11 57:4.
23.
Although Indiana state law requires local election officials file affidavits with
the Election Division certifying performance voter list maintenance tasks, only very few local
election officials have complied with this law, and Indiana has taken action compel their
compliance. Appx. Exh. Co-Directors Second Interrogatory Responses, Responses No. and pp. 7-8; Appx. Exh. King Tr. 54:11 57:4; Appx. Exh. Deckard Tr. 31:23 32:7,
35:13 24, 37:19 25, 38:11 39:11; Appx. Exh. Fotia Tr. 65:17 66:7.
24.
Following the expiration the 2006 Consent Decree 2009, Indiana ceased
regularly monitoring local election officials performance voter list maintenance tasks and
 
Case 1:12-cv-00800-WTL-TAB Document Filed 10/11/13 Page PageID 345
ceased notifying local election officials violations apparent problems with voter rolls.
Appx. Exh. King Tr. 30:16 32:7; Appx. Exh. Deckard Tr. 191:21 205:4; Appx.
Exh. Fotia Tr. 64:12 65:16; Appx. Exh. Redman Tr. 83:10 17, 85:23 86:1;
Appx. Exh. Coleman Tr. 58:7 60:3, 60:4 16.
25.
Indiana lack oversight local election officials another factor rendering
Indiana list maintenance efforts unreasonable under industry standards applicable election
administration. Appx. Exh. Handel Report 37-40, 41.
Conflicting State Advice Local Election Officials and Inconsistent List
Maintenance Practices Local Election Officials.
26.
Indiana gave conflicting guidance local election officials about voter list
maintenance practices. Appx. Exh. 10, Co-Directors First Interrogatory Responses, Response
14, 13; Appx. Exh. Redman Tr. 47:9 48:24, 98:1 21; Appx. Exh. Fotia Tr. 42:8 20.
27.
Local election officials set their own, often inconsistent policies for determining
when cancel voter registration, and they base their determinations varying levels
information about the death relocation voter. Appx. Exh. Redman Tr. 19:12 16,
42:9 17; Appx. Exh. Fotia Tr. 28:4 21.
28.
Indiana conflicting guidance local election officials yet another factor
rendering Indiana list maintenance efforts unreasonable under industry standards applicable
election administration. Appx. Exh. Handel Report 34-35, 37, 40-41.
29.
Inconsistent list maintenance practices among local election officials further
factor rendering Indiana list maintenance effort unreasonable under industry standards
applicable election administration. Appx. Exh. Handel Report 30, 32-33, 34-37, 40-41.
 
Case 1:12-cv-00800-WTL-TAB Document Filed 10/11/13 Page PageID 346
Indiana Insufficient Mailings Identify Voters Who Relocate.
30.
Since 2006, Indiana has not conducted any NCOA mailings voters who have
relocated nor statewide mailings all registered voters identify ineligible registrations, and
local election officials only five counties have performed removal mailings since 2009. Appx.
Exh. Handel Report 18, 34, 36; Appx. Exh. King Tr. 36:11 18.
31.
Indiana does not undertake remedial steps direct local election officials
perform county-wide mailings NCOA mailings required law when the local election
officials fail perform such mailings. Appx. Exh. Deckard Tr. 62:15 65:11.
32.
The lack NCOA, statewide, county-wide mailings registered voters yet
another factor rendering Indiana list maintenance effort unreasonable under industry standards
applicable election administration. Appx. Exh. Handel Report 30, 32-34, 36, 40-41.
Indiana Overall Failure Make Reasonable Effort Conduct Voter
List Maintenance.
33.
What constitutes reasonable voter list maintenance situational and varies over
time, depending how accurate and current state voter rolls are and what technologies and
list maintenance resources are available the state. Exh. King Tr. 67:7 73:1.
34.
Local election officials Indiana are confused about how they should perform
voter list maintenance. Appx. Exh. Coleman Tr. 83:16 84:2; Appx. Exh. Handel
Report 35.
35.
Given the condition Indiana voter registration rolls and the list maintenance
technologies and methods available Indiana, the state overall effort maintain accurate and
 
Case 1:12-cv-00800-WTL-TAB Document Filed 10/11/13 Page PageID 347
current voter registration rolls are unreasonable under industry standards applicable election
administration. Appx. Exh. Handel Report 40-42.
Plaintiffs Have Been Injured the State Failure Undertake Reasonable
Efforts Maintain the Accuracy and Currency Voter Registration Rolls
36.
Indiana citizens are concerned that inaccurate and out date voter registration
rolls create the potential for voter fraud. Appx. Exh. Deckard Tr. 211:22 214:1.
37.
Inaccurate and out date voter registration rolls undermine citizens confidence the fairness elections and foster citizens concern about voter fraud. Appx. Exh. King Tr. 51:10 24, 73:2 74:20.
38.
Indiana voters have voiced concerns about deceased people being left the
state voter registration rolls. Appx. Exh. Fotia Tr. 67:22 68:10.
39.
Indiana voters have voiced concerns that leaving the names people who have
moved away the voter rolls makes Indiana elections wide open for some kind fraud, and
that inaccurate and out date voter rolls damage citizen confidence that elections are being
conducted with integrity creating the perception that the election process untrustworthy,
which undermines the people trust their government. Appx. Exh. Coleman Tr. 65:17
67:23.
40.
Judicial Watch membership organization, and Judicial Watch has members
who are registered vote Indiana. Appx. Exh. 11, Thomas Fitton Declaration 4-5.
41.
Members Judicial Watch who are registered vote Indiana asked the
organization bring this lawsuit, which expresses the collective wishes Judicial Watch
members who are registered vote Indiana. Appx. Exh. 11, Thomas Fitton Declaration
 5-7, Attach. 1-2.
 
Case 1:12-cv-00800-WTL-TAB Document Filed 10/11/13 Page PageID 348
42.
Defendants actions have harmed Judicial Watch members who are registered
vote Indiana lowering these members confidence that federal elections are being
conducted with integrity, which turn undermines these members willingness participate
American democracy. Appx. Exh. 11, Thomas Fitton Declaration 11-13.
43.
Judicial Watch members exercise significant influence over the organization
activities, and the organization receives support from its members order bring lawsuits like
the instant action. Appx. Exh. 11, Thomas Fitton Declaration 4-5, 8-10.
44.
Improperly maintained voter registration voter rolls require more work clean
and make accurate than voter rolls that have been well maintained. Appx. Exh. Deckard Tr.
216:15 217:10.
45.
Well-maintained voter registration rolls require less work keep accurate than
voter rolls that are disarray. Appx. Exh. King Tr. 74:21 76:25.
46.
Improperly maintained voter registration rolls create backlog work that needs performed before the voter rolls can made accurate and current removing ineligible
voters. Appx. Exh. Fotia Tr. 71:19 73:2.
47.
True the Vote engages variety election integrity activities, one which
the organization Voter List Verification Project, which aims maximize the accuracy and
currency voter registration rolls throughout the United States mobilizing volunteers who
use database technology improve the rolls accuracy and currency. Appx. Exh. 12, Catherine
Engelbrecht Declaration 4-6.
48.
True the Vote Voter List Verification Project active number states,
including Indiana. Appx. Exh. 12, Catherine Engelbrecht Declaration 4-5, Attach.
 
Case 1:12-cv-00800-WTL-TAB Document Filed 10/11/13 Page PageID 349
49.
While True the Vote Voter List Verification Project provides valuable public
service, its volunteer efforts are substitute for state efforts maintain voter registration
rolls improve the accuracy and currency voter rolls when problems are brought the
state attention. Because Indiana has failed perform reasonable voter list maintenance
required NVRA Section True the Vote Voter List Verification Project Indiana cannot completed successfully effectively could the state undertook reasonable voter list
maintenance efforts. Appx. Exh. 12, Catherine Engelbrecht Declaration 4-7, Attach
50.
True the Vote efforts ensure that voter registration rolls Indiana are
accurate and current possible frustrated and being impaired Defendants failure
undertake reasonable list maintenance efforts, causing injury True the Vote. Appx. Exh. 12,
Catherine Engelbrecht Declaration 7-9.
51.
Given Defendants failure undertake reasonable list maintenance efforts, True
the Vote must spend additional time conduct its Voter List Verification Project Indiana,
diverting resources that the organization could spending training election monitors other
tasks, further injuring True the Vote. Appx. Exh. 12, Catherine Engelbrecht Declaration 
10-11, Attach.
52. letter dated February 2012, Plaintiffs notified Indiana that was violation Section the NVRA and lawsuit would filed against the state did not take steps
correct its violations. Indiana responded with general denial any violations. Appx. Exh. 11,
Thomas Fitton Declaration and Attach.
53.
Plaintiffs February 2012 letter also requested that Indiana produce documents
related its list maintenance efforts the two preceding years. Indiana failed produce the
 
Case 1:12-cv-00800-WTL-TAB Document Filed 10/11/13 Page PageID 350
requested documents, necessitating litigation obtain them. Appx. Exh. 12, Catherine
Engelbrecht Declaration 12; Appx. Exh. 11, Thomas Fitton Declaration 14.
ARGUMENT
Indiana Violated NVRA Section Voter List Maintenance Requirements.
Under NVRA Section states are required 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 residence the registrant.
U.S.C. 1973gg-6(a)(4).4
The Reasonable Efforts Requirement NVRA Section
The manner which state satisfies its list maintenance obligations under NVRA can
take various forms. can include direct efforts efforts that are political, financial, legal
nature, some combination thereof long those efforts are reasonable. U.S. Missouri,
535 F.3d 851.
Reasonable Efforts Under Plain Meaning Standard.
Because Congress recognized that what constitutes reasonable effort will vary from
time time and based the condition state voter rolls, the NVRA does not define
 reasonable effort prescribe specific set list maintenance activities necessary for states
satisfy NVRA Section U.S. Missouri, 2007 U.S. Dist. Lexis 27640, *19 (W.D. Mo. April
13, 2007), aff part, rev part other grounds, U.S. Missouri, 535 F.2d 851.
Plaintiffs note that the NVRA also imposes obligations states remove convicted
felons, ineligible invalid registrations, duplicate registrations, and mentally incompetent
persons from voter registration rolls. Given the gravity the NVRA Section violations
Plaintiffs have identified, unnecessary for Plaintiffs prove each these additional
violations prevail their claims. Plaintiffs have not focused these additional obligations
for the sake brevity and ensure that disciplined motion submitted the Court. See S.D.
Ind. Local Rule 56-1, Local Rules Advisory Committee Comments Re: 2002 Amendment.
 
Case 1:12-cv-00800-WTL-TAB Document Filed 10/11/13 Page PageID 351
Accordingly, courts may give the term reasonableness its ordinary meaning when analyzing
NVRA Section claims. fundamental canon statutory construction that, unless
otherwise defined, words will interpreted taking their ordinary, contemporary, common
meaning. Perrin United States, 444 U.S. 37, 42, (1979). reasonable effort one that
 fair and sensible, fairly moderately good, accordance with reason, and possessing
sound judgment. Antonyms for effort include inaction, inactivity, indolence, inertia,
languor, laziness, and quiescence.6 applying this plain meaning, courts have determined that reasonable list maintenance effort requires states exercise both active leadership and
effective oversight. U.S. Missouri, 535 F.3d 850, 851.
Reasonable Efforts Under Industry Standards. cases such this one, where professionals labor within vast realms specialized
knowledge, determination the reasonableness state efforts may aided expert
assessment election administration practices. such cases, the reasonable person under the
circumstances test can assessed based upon how reasonable professional under the
circumstances would have acted under prevailing professional norms. United States
Williams, 698 F.3d 374, 386 (7th Cir. 2012). cases where professionals use specialized
knowledge perform their jobs, expert testimony probative questions concerning the
reasonableness conduct for evaluating whether defendants actions met their duty under law.
Musser Gentiva Health Servs., 356 F.3d 751, 760 (7th Cir. 2004).
Use experts appropriate the field election administration. Because the field
election administration relies specialized and complex knowledge voter list maintenance
Merriam-Webster Dictionary, definition reasonable, available
http://www.merriam-webster.com/dictionary/reasonable (visited October 2013).
Merriam-Webster Dictionary, definition effort, available http://www.merriamwebster.com/dictionary/effort (visited October 2013).
 
Case 1:12-cv-00800-WTL-TAB Document Filed 10/11/13 Page PageID 352
technologies and methods, the opinions expert witnesses are probative determining liability.
See, e.g., Mattke Deschamps, 374 F.3d 667 (8th Cir. 2004) (cases involving complex issues science technology require expert testimony assist determination liability). This
technical complexity especially pronounced the area voter registration list maintenance,
which requires responsible officials take advantage different technologies and methods for
keeping accurate and current, non-static lists millions individuals maintain public
confidence the integrity elections.
Similar the standards care applied other areas the law, its determination first
requires assessment the question the practices actions considered reasonable
prudent members the same group similar situation. Alliant Tax Credit Fund 31-A, Ltd. Murphy, 494 Fed. Appx. 561, 573 (6th Cir. 2012). Second, the question whether the
professional utilizing all reasonable, currently available methods and technologies brought bear well. See Ward United States, 838 F.2d 182, 187 (6th Cir. 1988) (in determining
whether doctor exercised due care, regard must given the state medical science the
time Klisch MeritCare Med. Group, 134 F.3d 1356, 1359 (8th Cir. 1998) due regard for
the state medical technology the time treatment should the standard which
physician actions are judged
Reasonable Efforts Under Ordinary Care Standard. ordinary negligence cases, evaluating the reasonableness conduct when violation duty care has been alleged involves considering the probability harm others, the
gravity the resulting injuries, and the burden preventing those injuries. United States
Carroll Towing Co., 159 F.2d 169, 173 (2d. Cir. 1947). This test has been adopted the law
this circuit. Michigan United States Army Corps Eng rs, 667 F.3d 765, 785 (7th Cir. 2011)
 
Case 1:12-cv-00800-WTL-TAB Document Filed 10/11/13 Page PageID 353 The gravity risk involves not only the probability harm, but also the magnitude the
harm the probability materializes. Mesman Crane Pro Servs., 512 F.3d 352, 354 (7th Cir.
2008) [F]ailure take precaution negligent only the cost the precaution ... less than
the probability the accident that the precaution would have prevented multiplied the loss
that the accident occurred would cause Furthermore, this standard has been used
determine whether institutions are violation federal law cases which federal law
imposes duty, but does not elaborate the standard care. Fal-Meridian, Inc. U.S. Dep Health and Human Servs., 604 F.3d 445, 448-449 (7th Cir. 2010). Accordingly, the same
duty care standard applied when court evaluating breach duty imposed common
law negligence can applied violation federal statute. Id.
Indiana List Maintenance Efforts Were Not Reasonable
Under Any Standard.
Indiana has violated NVRA Section requirement conduct general program that
makes reasonable effort remove the names ineligible voters from the official lists
eligible voters and actively lead, direct, and oversee such efforts. U.S.C. 1973gg6(a)(4), U.S. Missouri, 535 F.3d 850-51; see also U.S.C. 1973gg-8 (requiring the state designate chief state election official responsible for coordination the State
responsibilities under this Act Indiana list maintenance efforts were not reasonable under
any standard.
First, the condition Indiana voter registration rolls per evidence that the state
violated NVRA Section reasonableness requirement. Voter registration rolls Indiana are
highly inaccurate and out date. The fact that Indiana counties have voter rolls that exceed
100% TVAP determinative itself NVRA Section violation. SOF 5-10.
Indiana had made reasonable efforts conduct voter list maintenance programs, such result
 
Case 1:12-cv-00800-WTL-TAB Document Filed 10/11/13 Page PageID 354
would virtually impossible. SOF 10. per finding NVRA Section violation warranted based this undisputed fact alone.7 the extent that the Court does not find per violation NVRA Section based
the poor condition Indiana voter registration rolls, the condition the rolls remains highly
relevant assessing the reasonableness Indiana list maintenance efforts. Whether state
violates NVRA Section context specific. What makes state general program list
maintenance efforts reasonable under the plain meaning that term differs depending the
circumstances and context. SOF 33; U.S. Missouri, 2007 U.S. Dist. Lexis 27640 *19. this case, the relevant circumstances and context includes Indiana past, systemic failures
conduct reasonable list maintenance programs required federal law, the abandonment the
state list maintenance efforts following the expiration the 2006 Consent Decree, and the
undeniably poor condition Indiana voter registration rolls. also includes the fact that CoDirectors King and Deckard received information indicating that the state voter rolls were
poor condition. SOF
Under these circumstances and given this context, the list maintenance efforts undertaken the state should have included least two, overarching components order
 reasonable under the plain meaning that term. These components, turn, should have
included certain, specific activities. The first component coordination and facilitation list
maintenance activities derived from states obligation lead and direct voter list per standard for establishing violations federal law has been applied the
antitrust context. See generally Continental T.V., Inc. GTE Sylvania Inc., 433 U.S. 36, 57-59
(1977) (discussing effects-based and formal threshold per rules). Once per violation
established, further inquiry need made into the practices the parties the effects their
actions order support finding illegal conduct. United States Nat Soc. Prof
Eng rs, 404 Supp. 457, 460 (D.D.C. 1975) Price fixing per violation the Sherman
Act, requiring further inquiry court into the activities, origin, history, purpose (citing
United States Nat Assoc. Real Estate Bds., 339 U.S. 485, 489 (1950)).
 
Case 1:12-cv-00800-WTL-TAB Document Filed 10/11/13 Page PageID 355
maintenance efforts and required Indiana coordinate with multiple state and federal agencies, well other states, order obtain and disseminate information necessary for proper list
maintenance. U.S. Missouri, 535 F.3d 850-51. Such coordination and facilitation more
logically handled the state level rather than local election officials due the scope and
scale these undertakings. The second component active oversight program that monitors
local election officials list maintenance activities, investigates problems failures, and takes
steps remedy them when they occur. Id. this case, NVRA Section required Indiana undertake the following reasonable
activities coordinate and facilitate maintenance its voter registration rolls:
 
Conduct statewide mailing all registered voters pursuant the NVRA identify
voters who have moved;
 
Ensure that the Indiana Department Health obtains death information from other
states via the STEVE and EVVE interstate systems and provides the information
the Election Division for list maintenance;
 
Obtain the Social Security Death Index SSDI from the federal government and
provide appropriate information from the SSDI each local official;
 
Enter the Interstate Voter Registration Cross-Check IVRC program for the
identification Indiana voters who move out-of-state;
 
Obtain the National Change Address NCOA database from the U.S. Postal
Service identify relocated voters; and
 
Obtain access the Systematic Alien Verification for Entitlements SAVE
database from the U.S. Department Homeland Security identify non-citizen
registered voters.
Indiana did not undertake any these reasonable activities during the relevant time period,
rendering its efforts unreasonable. SOF 10, 11-21, 30-32, 33, 35.
 
Case 1:12-cv-00800-WTL-TAB Document Filed 10/11/13 Page PageID 356 addition, given the circumstances, NVRA Section required Indiana undertake the
following reasonable oversight activities:
 
Conduct adequate training and instruction local election officials;
 
Monitor local election official performance list maintenance regular basis;
 
Notify local election officials writing apparent failures conduct list
maintenance;
 
Provide state funding local election officials carry out programs list
maintenance;
 
Offer state staff assistance local election officials for list maintenance;
 
Threaten direct State government takeover any list maintenance programs
local election officials that are not being carried out properly effectively;
 
Threaten noncomplying local election officials with referrals either the Indiana
Attorney General the appropriate U.S. Attorney for Indiana with
recommendation for prosecution.
Indiana did none these reasonable things, rendering its voter list maintenance efforts
unreasonable under NVRA Section SOF 10, 22-25, 26-29, 31-32, 34-35. Testimony
from state and local election officials also establishes that Indiana failed actively lead, direct, oversee list maintenance the state. SOF 1-3, 8-9, 11-21, 22-24, 26-27, 30-31, 34. This
level indifference and inattention which Indiana has admitted also confirms that
Indiana voter list maintenance efforts were not reasonable under the plain meaning the term.
SOF 35. addition, Plaintiffs expert, former Georgia Secretary State Karen Handel, has
opined that Indiana list maintenance efforts were not reasonable under industry standards
applicable election administration. SOF 10, 25, 28-29, 32, 35. Specifically, Indiana
efforts were not reasonable because the state list maintenance activities fell short what
would expected chief state election official responsible for voter registration rolls that are
 
Case 1:12-cv-00800-WTL-TAB Document Filed 10/11/13 Page PageID 357 poorly maintained, inaccurate, and out date Indiana voter rolls are. SOF 10,
35. Plaintiffs expert concluded that Indiana voter rolls were poor condition, and therefore
Indiana specific actions and inactions this case were unreasonable. SOF 5-7, 10, 25,
35. These pieces evidence the condition Indiana voter rolls and the expert assessment Indiana actions provide this Court with sufficient uncontested facts find that Indiana
voter list maintenance efforts were not reasonable under industry standards.
Finally, Indiana actions and inactions resulted near certainty harm, the resulting
harm was (and is) substantial, and the burden preventing that harm was small relation the
risk and severity the damage that resulted. When Indiana election officials abandoned most their voter list maintenance efforts following the expiration the 2006 Consent Decree,
was virtual certainty that the state voter registration rolls would grow increasingly inaccurate
and out date. SOF 21. Since people move and die every day, voter list maintenance must done all the time and regular basis order ensure that voter registration rolls remain
accurate and current. SOF 44-46. The failure maintain accurate and current voter
registration rolls harms citizens confidence the integrity elections and undermines the
stability and effectiveness the electoral system. SOF 36-39, 41-42. Given the great
importance maintaining such confidence and conducting fair elections, the harm that has
resulted from the state inactivity, and the burden the state preventing that harm
undertaking the fairly modest facilitation, coordination, and oversight activities described herein,
the state minimis voter list maintenance efforts were plainly unreasonable. SOF 25,
32, 35. Because Indiana list maintenance efforts were not reasonable, the state has violated
NVRA Section
 
Case 1:12-cv-00800-WTL-TAB Document Filed 10/11/13 Page PageID 358
Indiana Failed Satisfy NVRA Section Safe Harbor Provision
For Voter Changes Residence.
Indiana failed meet NVRA Section safe harbor provision concerning voters who
relocate, and remains subject the reasonableness requirement set forth above with respect such voters. See U.S.C. 1973gg-6(c)(1). initial matter, the NVRA provides
 safe harbor from the requirement that states make reasonable effort remove deceased
voters from the rolls. Accordingly, under plain reading the NVRA, even state meets the
safe harbor for voters who relocate, could still violation the requirement make
reasonable effort remove deceased voters. Indiana effort remove deceased persons was
unreasonable. SOF 11-15, 20, 35. Accordingly, Indiana would remain violation
NVRA Section even had met the statutory safe harbor for voters who relocate.
The safe harbor provision enables states satisfy their obligation conduct general
program remove voters who become ineligible vote reason change residence
using the NCOA list identify such voters, then following the mail confirmation and removal
procedures set forth the provision. U.S.C. 1973gg-6(c)(1) and (d)(2). While the safe
harbor provision does not specify how regularly and often NCOA mailings must occur, how
many voters who have relocated must receive each NCOA mailing, Indiana cannot have satisfied
the provision. Indiana has not conducted state-initiated mailing any kind since 2006, and
only very few Indiana counties have conducted recent voter mailings. SOF 30-32. Any
contrary reading the safe harbor provision would lead absurd result, and not
possible construction the provision. United States Granderson, 511 U.S. 39,
(1994); Dewsnup Timm, 502 U.S. 410, 427 (1992); Public Citizen U.S. Dep Justice, 491
U.S. 440, 454 (1989); see also Woods Ill. Dep Children Family Servs., 710 F.3d 762,
765 (7th Cir. 2013) (where statute silent necessary details, courts must fill the gaps
 
Case 1:12-cv-00800-WTL-TAB Document Filed 10/11/13 Page PageID 359
consistent with Congress intent); United Savings Ass Timbers Inwood Forest Assocs.,
484 U.S. 365, 371 (1988) only one the permissible meanings [of ambiguous phrase]
produces substantive effect that compatible with the rest the law
Plaintiffs Were Injured Indiana Conduct.
Plaintiffs have been injured Indiana violation NVRA Section First, because
the state failure properly maintain the voter registration rolls, Judicial Watch members
Indiana have lost confidence the integrity the election process Indiana and their elected
leaders accountability ordinary citizens. SOF 36-39, 42. This loss confidence
direct result Defendants failure comply with NVRA Section Because the state voter
registration rolls are poorly maintained, every time Indiana voter signs poll book and sees
the names deceased relatives family, friends neighbors who have moved away, they are
confronted with the fact that their government failing keeping accurate records about one
the most fundamental and important aspects citizenship the right vote. SOF 37, 38.
Protecting citizens confidence the integrity elections essential American democracy:
Confidence the integrity our electoral processes essential the
functioning our participatory democracy ... Voters who fear their legitimate
votes will outweighed fraudulent ones will feel disenfranchised.
Purcell Gonzalez, 549 U.S. (2006) (emphasis added); see also Crawford Marion
County Election Bd., 553 U.S. 181, 197 (2008) [P]ublic confidence the integrity the
electoral process has independent significance, because encourages citizen participation the
democratic process.
The law allows Judicial Watch represent its members who have suffered such injury
via association standing. Ezell City Chicago, 651 F.3d 684, 696 (7th Cir. 2007). Protecting
Judicial Watch members interest the integrity elections federal office both central and
germane Judicial Watch purpose ensuring integrity government and politics. SOF
 
Case 1:12-cv-00800-WTL-TAB Document Filed 10/11/13 Page PageID 360
40-41, 43; Common Cause Buescher, 750 Supp. 1259, 1271 (D. Colo. 2010). Judicial
Watch members views Indiana failure protect the integrity its voter rolls
particular and federal elections general are known Judicial Watch such that these members
may express their collectively through the organization. SOF 43; Int Union Brock, 477
U.S. 274, 290 (1986). Judicial Watch both provides the means which [its members] express
their collective views election integrity issues and protect[s] their collective interests the
same. SOF 41; Hunt Washington State Apple Adver. Comm 432 U.S. 333, 345 (1977);
ECF No. 28. Seeking redress these injuries therefore within the scope reasons
that individuals joined Judicial Watch. SOF 41; Friends the Earth, Inc. Chevron
Chemical Co., 129 F.3d 826, 829 (5th Cir. 1997). Where, here, the relief sought
injunctive, individual participation the organization members not normally necessary. 
SOF 40-41; Florida State Conf. the NAACP Browning, 522 F.3d 1153, 1160 (11th Cir.
2008) (internal citation omitted).
True the Vote has suffered organizational injuries from Indiana failure properly
maintain the state voter registration rolls. Havens Realty Corporation Coleman, 455 U.S.
363, 378 (1982). the U.S. Supreme Court has declared, when actor perceptibly impair[s] organization ability fulfill its purpose, there can question that the organization has
suffered injury fact. Id.; see also Plotkin Ryan, 1999 U.S. Dist. Lexis 16214, *19 (N.D. Ill.
Sept. 28, 1999) aff 239 F.3d 882 (7th Cir. 2001). True the Vote conducts voter list analysis
ensure rolls are accurate, along with other election integrity projects, Indiana and several other
U.S. States. SOF 47-48. True the Vote ability carry out its mission cleaning
voter registration rolls has been more than perceptibly impaired the Indiana NVRA
violations. SOF 49. result, True the Vote has suffered concrete and demonstrable
 
Case 1:12-cv-00800-WTL-TAB Document Filed 10/11/13 Page PageID 361
injury the organization activities. SOF 50; Assoc. for Disabled Americans, Inc.
Claypool Holdings, 2001 U.S. Dist. Lexis 23729, *43 (S.D. Ind. Aug. 2001) (citing Havens
Realty, 455 U.S. 379). True the Vote has suffered this organizational injury because Indiana
NVRA Section violations has made difficult impossible for True the Vote fulfill one its essential purposes goals. SOF 49-50; Common Cause, 750 Supp. 1269. Common Cause, Indiana violation the NVRA renders True the Vote voter list
verification program the State Indiana less effective. SOF 49; Common Cause, 750
Supp. 1269. this regard, True the Vote organizational injury that its actual ability
conduct specific projects during specific period time will frustrated [state action]. 
Florida State Conference Browning, 522 F.3d 1153, 1166 (11th Cir. 2008). Indiana NVRA
Section violations have made True the Vote efforts ensure fair elections several times
more difficult than would have been Indiana had complied with federal law. SOF 4950. Each month that Indiana allowed its voter registration rolls fall further into disarray and
neglect was unmistakably adding another month remedial work that someone else would have the future before the rolls could made reasonably accurate, forcing True the Vote
divert resources order focus Indiana poor voter rolls. SOF 44-46, 51. result,
Indiana has frustrated True the Vote election integrity efforts the state, which turn harmed
True the Vote undermining its organizational purpose. SOF 49-50.
II.
Indiana Violated the Public Records Provision NVRA Section addition imposing voter list maintenance obligations states, NVRA Section
also confers upon [Plaintiffs] individual right information, and Indiana failure
provide that information Plaintiffs violated NVRA Section and caused Plaintiffs injury.
Project Vote/Voting for America, Inc. Long, 752 Supp. 697, 702 (E.D. Va. 2010)
 
Case 1:12-cv-00800-WTL-TAB Document Filed 10/11/13 Page PageID 362
(internal citations omitted); U.S.C. 1973gg-6(i). Furthermore, Plaintiffs need show [no]
more than that they sought and were denied specific agency records establish the violation
and resultant injury. Id. 703. Plaintiffs have made this showing. SOF 53. uncontested that, not only did Indiana deny Plaintiffs request for records that the
state was required produce them under NVRA Section but Plaintiffs had engage
months litigation obtain least some the requested records. SOF 53. Indiana has
continued violate NVRA Section public records provision refusing provide
additional relevant information Plaintiffs. result, Plaintiffs are entitled summary
judgment Count their Complaint. Project Vote/Voting for Am., Inc. Long, 813
Supp. 738, 742 (E.D. Va. 2011) aff 682 F.3d 331 (4th Cir. 2012).
 
Case 1:12-cv-00800-WTL-TAB Document Filed 10/11/13 Page PageID 363
CONCLUSION
WHEREFORE, for all the forgoing reasons, Plaintiffs respectfully request that the Court
enter Order:
 
Granting summary judgment for Plaintiffs all claims;
 
Awarding declaratory and injunctive relief Plaintiffs;
 
Awarding any other relief that the Court deems just and proper.
Dated: October 11, 2013
Respectfully submitted, Christian Adams Counsel
/s/ Paul Orfanedes
Paul Orfanedes
ELECTION LAW CENTER, PLLC
300 Washington Street, Ste. 405
Alexandria, 22314
/s/ Chris Fedeli
Chris Fedeli
Admitted Pro Hac Vice
David Langdon
Joshua Bolinger
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
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
 
Case 1:12-cv-00800-WTL-TAB Document Filed 10/11/13 Page PageID 364
CERTIFICATE SERVICE hereby certify that this 11th day October, 2013, electronically filed the foregoing
document with the Clerk the Court using the CM/ECF system. Notice this filing will
sent counsel record operation the Court electronic filing system. Parties may access
this filing through the Court system.
/s/ Chris Fedeli
Chris Fedeli



Sign Up for Updates!