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Judicial Watch • Indiana MTD Denied Order

Indiana MTD Denied Order

Indiana MTD Denied Order

Page 1: Indiana MTD Denied Order


Number of Pages:11

Date Created:November 29, 2012

Date Uploaded to the Library:February 20, 2014

Tags:standing, maintenance, claim, Voter ID, Election, Voter Fraud, Division, Indiana, Supreme, defendants, Plaintiffs, letter, complaint, watch, Secretary, plaintiff, State, judicial, Supreme Court, court, EPA, IRS, ICE, CIA

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vs. CAUSE NO. 1:12-cv-800-WTL-TAB BRADLEY KING, al., 

This cause before the Court the Defendants motion dismiss (dkt. no. 20).  The motion fully briefed and the Court, being duly advised, DENIES the motion for the reasons set forth below. The Court also DENIES MOOT the Plaintiffs Motion for Oral Argument (dkt. no. 27). PLAINTIFFS ALLEGATIONS 
Plaintiff Judicial Watch, Inc. (Judicial Watch) describes itself a non-profit organization that seeks promote integrity, transparency, and accountability government and fidelity the rule law, while Plaintiff True the Vote describes itself a non-profit organization that seeks restore truth, faith, and integrity local, state, and federal elections.  Complaint   The two groups bring this action for declaratory and injunctive relief pursuant the National Voter Registration Act 1993 (NVRA), alleging that the Defendants have violated two provisions that statute.  First, they allege that the Defendants have failed conduct general program that makes reasonable effort remove the names ineligible voters from the official lists eligible voters reason of voter deaths and residence changes required U.S.C.  1073gg-6(a)(4) (hereinafter referred the List Maintenance Claim).  They also allege that the Defendants have failed 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 required U.S.C.  1937gg-6(i) (hereinafter referred the Records Claim). 
The Plaintiffs note that the State Indiana entered into consent decree 2006 response lawsuit brought the United States alleging non-compliance with the NVRA.  The Plaintiffs allege that the State made substantial efforts clean its voter rolls 2006 compliance with the consent decree, but that those compliance efforts have not continued through the present.  The lack compliance demonstrated, according the Complaint, comparison 2010 Census data and voter registration data, which indicates that the number persons registered vote exceeded the total voting population twelve Indiana counties and exceeded 90% the total voting population another Indiana counties. February 2012, Judicial Watch sent letter outlining these facts then-Indiana Secretary State Charlie White and Defendants Bradley King and Trent Deckard, Co-Directors the Indiana Election Division.  The letter stated that [t]his letter serves advance notice that lawsuit may brought against you you not take action correct this apparent violation [the NVRA] within days. The letter also requested that the recipients make available all pertinent records concerning the implementation programs and activities conducted for the purpose ensuring the accuracy and currency Indianas official eligible voter lists during the past two years. response, Defendants King and Deckard issued the following order: THEREFORE ORDERED That Co-Directors having determined that 
the complaint grievance filed Justice Watch, Inc. [sic.] with the Election 
Division does not set forth violation the NVRA even the facts set forth the complaint grievance are assumed true, hereby DISMISS the 
complaint grievance.  
The Plaintiffs then filed this lawsuit. 
The Defendants move dismiss the Plaintiffs Complaint pursuant Federal Rule Civil Procedure 12(b)(6), arguing that the Complaint fails state claim for which relief can granted. reviewing Rule 12(b)(6) motion, the Court must accept all well pled facts true and draw all permissible inferences favor the plaintiff.  Agnew National Collegiate Athletic Assn, 683 F.3d 328, 334 (7th Cir. 2012). For claim survive motion dismiss for failure state claim, must provide the defendant with fair notice what the claim and the grounds upon which rests. Brooks Ross, 578 F.3d 574, 581 (7th Cir. 2009) (quoting Erickson Pardus, 551 U.S. 89, (2007)) (omission original). complaint must contain sufficient factual matter, accepted true, state claim relief that plausible its face.  Agnew, 683 F.3d 334 (citations omitted). complaints factual allegations are plausible they raise the right relief above the speculative level.  Bell Atlantic Corp. Twombly, 550 
U.S. 544, 556 (2007). With that standard mind, the Court will address the arguments made the Defendants. Notice Requirement 
The Defendants first argue that the Plaintiffs failed comply with the NVRAs notice requirement, which provides, relevant part: 
(1) person who aggrieved violation this subchapter may provide written notice the violation the chief election official the State involved. 

(2) the violation not corrected within days after receipt notice under paragraph (1) the aggrieved person may bring civil action appropriate district court for declaratory injunctive relief with respect the violation. U.S.C.  1973gg-9(b). The Defendants argue that the pre-suit letter sent Judicial Watch 
(the Letter) failed satisfy this requirement two respects.  First, they note that the letter 
does not state unequivocally that violation the NVRA has occurred; rather, speaks 
apparent violation, states that the available information strongly suggests non-compliance 
with the NVRA, and uses language such we believe that violation has occurred.  Despite 
these word choices, the Court finds that the Letter satisfied the pre-suit notice requirement, 
inasmuch the Letter, when read whole, makes clear that Judicial Watch asserting 
violation the NVRA and plans initiate litigation its concerns are not addressed timely 
The Defendants also argue that the Letter fails provide sufficient details about any 
alleged violation the NVRA satisfy the notice requirement.1 not surprising that the 
Letter does not contain any detailed allegations, inasmuch the NVRA provision issue does 
not contain any detailed requirements; simply requires reasonable effort the part the 
State.2  The Letter sets forth the reasons for Judicial Watchs conclusion that the Defendants 
1The Defendants suggest, passing, that the allegations the Complaint fail state claim due the same lack specificity.  The Defendants fail develop this argumenti.e., they fail make any attempt apply the relevant standard the facts alleged the Complaintand therefore the Court declines consider it.  See, e.g., United States Tockes, 530 F.3d 628, 633 (7th Cir. 2008) (Unsupported and undeveloped arguments ... are considered waived.).
2The Defendants characterize the Plaintiffs Complaint asserting that the Defendants violated the NVRA failing to act the registered voters reach certain percentage the population listed census data and arguecorrectlythat the NVRA contains such triggering mechanism and noteagain correctlythat there mention census data the NVRA all.  Defendants Brief The Defendants characterization misses the mark, however. The Plaintiffs actually allege that because the Defendants have failed comply with the NVRA, the voter registration rolls some Indiana counties are inaccurate, and simply point the discrepancy between the Census data and the voter registration rolls those counties evidence that inaccuracy. 
have failed comply with that general requirement.  The Court believes that was sufficient satisfy the notice requirement the NVRA with regard Judicial Watchs claims.3 the Defendants correctly note, the Letter was sent Judicial Watch, and there suggestion that Plaintiff True the Vote served notice any kind prior filing this suit.  However, the Court agrees with the approach the Sixth Circuit Court Appeals Association Community Organizations for Reform Now Miller, 129 F.3d 833, 838 (6th Cir. 1997), which that court declined dismiss certain plaintiffs from suit under the NVRA for failing provide notice where the state defendant had received notice from another plaintiff the suit and the receipt duplicative notices from the additional plaintiffs would not have furthered the purpose the NVRAs notice requirement.  Accordingly, the Court will not dismiss Plaintiff True the Vote for failing provide the Defendants with pre-suit notice. Standing 
The Defendants next argue that the Plaintiffs lack standing assert the claims the 
The doctrine standing requires federal courts satisfy themselves that the plaintiff has alleged such personal stake the outcome the controversy warrant his invocation federal-court jurisdiction. bears the burden showing that has standing for each type relief sought. seek injunctive relief, plaintiff must show that under threat suffering injury fact that concrete and particularized; the threat must actual and imminent, not conjectural hypothetical; must fairly traceable the challenged action the defendant; and must likely that favorable judicial decision will prevent redress the injury. This requirement assures that there real need exercise 
3The Court notes that the Defendants not allege that the notice requirement was not satisfied with regard the Records Claim; their argument addresses only the List Maintenance Claim. 
4The Court notes that only Article III standingnot prudential standingis issue.  The fact that the NVRA provides that anyone who aggrieved violation its provisions may bring suit demonstrates a congressional intent cast the standing net broadlybeyond the common-law interests and substantive statutory rights upon which prudential standing traditionally rested.  Federal Election Comm. Akins, 524 U.S. 11, (1998). 
the power judicial review order protect the interests the complaining party. Summers Earth Island Inst., 555 U.S. 488, 493 (2009) (internal quotation marks and citations omitted). noted above, the Plaintiffs assert two distinct violations the NVRA.  With regard the Records Claim, the Defendants notand cannotassert that the Plaintiffs lack standing.  See, e.g., Federal Election Commn Akins, 524 U.S. 11, 24-25 (finding standing bring suit redress informational injury directly related voting, the most basic political rights, namely the inability obtain information that allegedly was required statute made publicly available). course, [a] plaintiff cannot sidestep Article IIIs requirements combining request for injunctive relief for which has standing with request for injunctive relief for which lacks standing. Salazar Buono, 130 S.Ct. 1803, 1826 (2010). Therefore, the Plaintiffs must also demonstrate that they have standing pursue their List Maintenance Claim order for that claim proceed. initial matter, the Court notes that     each element Article III standing must supported the same way any other matter which the plaintiff bears the burden proof, i.e., with the manner and degree evidence required the successive stages the litigation.  Thus, while plaintiff must set forth affidavit other evidence specific facts survive motion for summary judgment, and must ultimately support any contested facts with evidence adduced trial, the pleading stage, general factual allegations injury resulting from the defendants conduct may suffice, for motion dismiss presume that general allegations embrace those specific facts that are necessary support the claim. 
Bennett Spear, 520 U.S. 154, 167-68 (1997) (internal quotation marks and citations omitted).  While the standard for granting motion dismiss has changed since Bennett, the general rule remains the same: this stage the litigation, the Plaintiffs must only make allegations 
regarding standing sufficient withstand motion dismiss, which means that they must 
demonstrate only that plausible that they have standing.5 
With regard Defendant Judicial Watch, the Court finds that has satisfied this burden alleging that its members who are registered vote Indiana6 are injured Indianas 
failure comply with the NVRA list maintenance requirements because that failure 
undermin[es] their confidence the legitimacy the elections held the State Indiana and 
thereby burden[s] their right vote.  While the Defendants argue that this allegation, and thus 
their injury, purely speculative, and thus insufficient meet the standard required for 
standing, Defendants Brief 12, the Court disagrees.  There can question that plaintiff 
who alleges that his right vote has been burdened state action has standing bring suit 
redress that injury. There also question that the right suffrage can denied 
debasement dilution the weight citizens vote just effectively wholly 
prohibiting the free exercise the franchise. Purcell Gonzalez, 549 U.S. (2006) 
(quoting Reynolds Sims, 377 U.S. 533, 555 (1964)). the Supreme Court has recognized,  
Confidence the integrity our electoral processes essential the functioning our participatory democracy. Voter fraud drives honest citizens out the democratic process and breeds distrust our government. Voters who fear their legitimate votes will outweighed fraudulent ones will feel disenfranchised. 
5If plaintiff survives motion dismiss standing grounds, the issue may, course, revisited summary judgment and/or trial the defendant believes that the evidence does not support the plaintiffs allegations. 
6The Defendants not dispute, and the Court readily finds, that Judicial Watch has sufficiently alleged that has associational standing pursue its claim behalf its members who are registered vote Indiana long those members would have standing sue individually. See generally Hunt Washington State Apple Advertising Commn, 432 U.S. 333, 343 (1977) (Thus have recognized that association has standing bring suit behalf its members when: (a) its members would otherwise have standing sue their own right; (b) the interests seeks protect are germane the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation individual members the lawsuit.). 
Id.  Indeed, defending its Voter Law before the Supreme Court, the State Indiana itself cited its interest protecting public confidence in the integrity and legitimacy representative government, interest that the Court noted had independent significance beyond the interest preventing voter fraud because encourages citizen participation the democratic process.  Crawford Marion County Election Bd., 553 U.S. 181, 197 (2008). Judicial Watch alleges that the confidence its members who are registered vote Indiana the integrity the electoral process has been undermined the Defendants failure comply with the list maintenance requirements the NVRA. the state has legitimate interest preventing that harm from occurring, surely voter who alleges that such harm has befallen him her has standing redress the cause that harm. 
Plaintiff True the Vote argues that has organizational standing sue its own behalf because the Defendants failure comply with the NVRA list maintenance requirements has impaired its ability further its essential purposes and goals.  Specifically, True the Vote alleges that one the largest its undertakings organization conduct voter list verification program, which entails comparing  voter registration rolls with other publicly available information identify apparent inaccuracies and deficiencies, which are then made the subject citizen complaint with the appropriate election officials.  If State does not satisfy its voter list maintenance obligations under the NVRA, True the Vote alleges, then, not only are the voter lists obtained True the Vote inaccurate and unreliable, but True the Vote cannot use its limited resources make the lists accurate and current possible, but, rather, it can only hope make for small part the States failure fulfill its legal obligations.  Plaintiffs Response 19. 
The Court finds that these allegations are sufficient demonstrate that plausible that True the Vote has suffered injury because the Defendants alleged failure comply with the NVRA and therefore has standing bring its List Maintenance Claim.  True the Votes allegations regarding standing are analogous those found sufficient the Supreme Court Havens Realty Corporation Coleman: 
Plaintiff HOME has been frustrated defendants racial steering practices its 
efforts assist equal access housing through counseling and other referral 
services. Plaintiff HOME has had devote significant resources identify and 
counteract the defendants sic.] racially discriminatory steering practices. 455 U.S. 363, 378 (1982). the Supreme Court noted, If, broadly alleged, petitioners steering practices have perceptibly impaired HOMEs ability provide counseling and referral services for low-and moderate-income homeseekers, there can question that the organization has suffered injury fact. Id.  Here, too, True the Votes ability carry out its mission cleaning voter registration rolls has been perceptibly impaired the Defendants alleged statutory violation, True the Vote has suffered injury. Because True the Vote has made plausible allegation that has been impaired, this stage has satisfied its burden with regard standing. Secretary State 
Finally, the Defendants argue that Defendant Connie Lawson, who sued her official capacity Indianas Secretary State, not proper defendant and should dismissed from this action. The Defendants argument based the fact that the NVRA requires each state designate State officer employee the chief State election official responsible for coordination State responsibilities under its provisions, U.S.C.  1973gg-8, and, the Defendants assert, Indiana has statute designated the co-directors the Indiana Election Division, both whom are named defendants this case.  The Court not convinced that the only proper defendant case brought under the NVRA the designated chief election official. There more fundamental problem with the Defendants argument, however.  The Indiana statute cited the Defendants does not reference the co-directors the Indiana Election Division; rather, references the co-directors the commission.  Ind. Code 3-7-11 Commission, turn, defined referring the Indiana election commission established 3-6-4.1-1, entity that entirely separate from the Election Division, which established Ind. Code 3-6-4.2-1 and referred throughout Title the election division. course, entirely possible that what the statute means and what says are two different things.7  Perhaps there even legislation that clarifies the issue.  The parties have not directed the Court it, however. And given the fact that all three the Defendants are represented the same counsel, there does not appear any harm leaving the question who and who not proper defendant for another day, when the parties can present more complete record and make more complete argument that addresses both the apparent disparity the statute and the actual role the Secretary State, any, implementing the relevant provisions the NVRA the State Indiana. 

For the reasons set forth above, the Defendants motion dismiss DENIED its entirety. The Plaintiffs motion for oral argument DENIED MOOT. 
7The Court notes that this likely, that the Commission does not appear have co-directors while the Election Division does. 

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