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Judicial Watch • Plaintiff’s Reply in Support of Summary Judgement Motion (JW and True the Vote v. King et. al 12-cv-00800)

Plaintiff’s Reply in Support of Summary Judgement Motion (JW and True the Vote v. King et. al 12-cv-00800)

Plaintiff’s Reply in Support of Summary Judgement Motion (JW and True the Vote v. King et. al 12-cv-00800)

Page 1: Plaintiff’s  Reply in Support of Summary Judgement Motion (JW and True the Vote v. King et. al...

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Number of Pages:21

Date Created:November 26, 2013

Date Uploaded to the Library:December 03, 2013

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

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Case 1:12-cv-00800-WTL-TAB Document Filed 11/26/13 Page PageID 963 THE UNITED STATES DISTRICT COURT
Case No. 1:12-cv-800-WTL-TAB
PLAINTIFFS REPLY SUPPORT SUMMARY JUDGMENT MOTION attempt deflect attention from its own law breaking, Indiana Opposition
attempts various mistaken arguments against the Plaintiffs and Plaintiffs expert, most which
are also irrelevant the law and facts governing this case. What relevant this case is:
Plaintiffs expert qualified, genuine dispute exists Plaintiffs facts, which prove
Indiana violations federal law, and based that law, Plaintiffs are entitled judgment their claims for Indiana NVRA Section violations.
Indiana Arguments Against Plaintiffs Expert are Inaccurate and Misleading
Indiana arguments against former Georgia Secretary State Karen Handel and her
expert opinion all rest inaccurate arguments. Indiana Opp., ECF 17-19. First, Indiana
statement that Secretary Handel background does not give her the necessary knowledge
opine another state officials performance the same role without merit given the facts
what Secretary Handel accomplished Georgia and what Defendants Deckard, King, and
Lawson have failed accomplish Indiana. Next, Indiana mischaracterizes certain legal
decisions Georgia, which are irrelevant Secretary Handel qualifications. Indiana also
Case 1:12-cv-00800-WTL-TAB Document Filed 11/26/13 Page PageID 964
wrongly characterizes Secretary Handel opinion one law and not fact. truth, the
Handel Report evaluates industry standards for state voter list maintenance factual matter),
while also discussing the relevant election laws which all chief state election officials are
required know, understand, and execute. Finally, Indiana argues the Handel Report fails
meet the standards for scientific evidence, when fact was not offered scientific evidence.
Plaintiffs Expert Qualified
Indiana mistaken that Plaintiffs expert not qualified. Indiana Opp., ECF 1819. For three years, Plaintiffs expert Karen Handel held the same responsibilities for voter list
maintenance the State Georgia that Defendants Trent Deckard, Bradley King, and Connie
Lawson collectively hold for the State Indiana. Georgia state approximately 9.9 million
people, population comparable Indiana 6.5 million residents, and the two states are
similarly comparable land mass, mixture rural and urban populations, and local political
structure.1 holding this position, part Secretary Handel job was understanding the extent her obligations ensure voter list maintenance was conducted reasonably Georgia. Id.
Secretary Handel relies the knowledge gained from having performed this job opine
Indiana efforts.2 former chief state election official responsible for NVRA compliance,
Karen Handel has the vantage point having been member the same group similar
situation Defendants, which makes her assessment all the more relevant. Alliant Tax Credit
Fund 31-A, Ltd. Murphy, 494 Fed. Appx. 561, 573 (6th Cir. 2012).
Handel Report, ECF 75-7 Like Indiana, Georgia county elections officials were largely
responsible for the day-to-day administration elections, including conducting list maintenance
tasks. However, Secretary State, maintained the overall obligation ensure that federal
and state law, well any rules guidelines set the Secretary State, the State Elections
Director, and/or the State Elections Board were followed.
Handel Report, ECF 75-7 formulating findings and conclusions, have considered
and relied upon experience and expertise the former Secretary State and Chief Elections
Officer for the State Georgia, position that included responsibility for NVRA compliance.
Case 1:12-cv-00800-WTL-TAB Document Filed 11/26/13 Page PageID 965
Furthermore, Secretary Handel has succeeded where the Defendants have failed.
Compared national averages, Georgia had accurate and well maintained voter lists the
conclusion Secretary Handel tenure 2010. Plfs. Motion Appx. Exh. U.S. Election
Administration Commission Report (excerpts), ECF 69-1 36-39 (showing that, 2010,
Georgia had total voting age population TVAP percentage 69.9 and CVAP percentage 75.3, demonstrating accurate voter rolls).3 Indiana, the Court will recall, fared very poorly
compared national averages evaluated this same 2010 data. Plfs. Opp., ECF 23-25.
Indiana also makes misleading claims about two legal decisions attempt cast
aspersions Secretary Handel tenure. Indiana Opp., ECF 19. With respect Morales Handel, Indiana claim that Georgia illegally changed its election laws the detriment
voters gross exaggeration. Id. Rather, the court found that change internal registration
reviews without preclearance was technical violation.4 Once was determined that
preclearance this minor change was necessary, the State Georgia promptly submitted the
change the U.S. Department Justice DOJ ).5 Indiana not subject Section the
These factors also explain why Secretary Handel fees are reasonable and line with industry
practices for expert witness compensation, contrary Indiana assertion. Indiana Opp., ECF 17. There very small number former chief state election officials who can speak from
the same position expertise and firsthand experience Secretary Handel. The number
such officials who presided over states comparable size and geography Indiana even
smaller, and within that group, the number officials who did exemplary job executing
voter list maintenance tasks for their state still smaller. These factors make Secretary Handel
expertise extremely unique, justifying her fees. Bandy Kimsey, 2010 U.S. Dist. Lexis 119034, (ND Ind. 2010); Reit Post Props., 2010 U.S. Dist. Lexis 119693, *27 (SDNY 2010).
Morales Handel, Order Granting Preliminary Injunction, 1:08-cv-3172, (N.D. Ga., Oct.
27, 2008) Accordingly, since Georgia has failed preclear either these changes, find have committed technical violation Section avail.
electionlaw/litigation/documents/Morales-Order-10-27-08.pdf (visited Nov. 19, 2013).
Id. [T]he State has filed for preclearance its new procedures response October
2008 letter from the Department Justice well the initiation this suit. date, the State
appears cooperating fully with the Attorney General and DOJ requests the preclearance
Case 1:12-cv-00800-WTL-TAB Document Filed 11/26/13 Page PageID 966
Voting Rights Act, and, therefore, the complex questions what changes are subject
preclearance are questions that Defendants have never been required decide.
Finally, issue Georgia State Conference NAACP Kemp, 841 Supp. 1320
(N.D. Ga. 2012) was motion dismiss NVRA Section lawsuit, not court finding any
 violation the NVRA, Indiana incorrectly claims. Indiana Opp., ECF 19. Like
Georgia, Indiana also was sued the NAACP for alleged violations Section the NVRA.
See NAACP Michael Gagano, Secretary the Indiana Family and Social Services
Administration, Order Approving Settlement, Case No: 1:09-cv-0849-TWP-DML (S.D. Ind.,
Aug. 25, 2011). addition Indiana and Georgia, recent Section lawsuits have been brought
against Ohio, Missouri, New Mexico, Pennsylvania, Louisiana, Massachusetts, and Nevada.6
Plaintiffs Expert Report Admissible
Indiana argument that Plaintiffs expert report was inadmissible legal opinion and
not opinion industry standards wrong for several reasons. Indiana Opp., ECF 1718. First, the report extensively details and discusses industry standards for states performance their list maintenance obligations. Secretary Handel identifies four sources information
about industry standards for voter list maintenance: the DOJ; the U.S. Election Assistance
Commission EAC 2011 Report Congress; the National Association Secretaries
State NASS 2009 Report voter list maintenance; and finally, the sitting state election
officials the states. Handel Report, ECF 75-7 20-21. All these resources were
readily available Defendants Deckard, King, and Lawson they were Secretary Handel.
Secretary Handel devotes seven pages her report discussing these industry standards.
See Lisa Danetz, Testimony: Increasing Compliance with Section the NVRA, Demos (April
19, 2013), avail. (visited November 19, 2013).
Case 1:12-cv-00800-WTL-TAB Document Filed 11/26/13 Page PageID 967
Handel Report, ECF 75-7 21-27. Specifically, this section the report contains the following
statements (bold font added for emphasis):
 This section reviews commonly employed list maintenance practices among the
states and provides opinions ECF 75-7 21.
 Many states opt conduct general mailing all registrants their rolls. ECF 757 22.
 More and more states are conducting general mailings part their routine, ongoing
list maintenance activities. ECF 75-7 23.
 The NCOA program effective and widely used list maintenance activity. ECF
75-7 23.
 Since 2005, number states have initiated activities crosscheck their voter
registration database with those other states. ECF 75-7 24.
 The EAC 2011 Report... provides state-by-state ranking order benchmark one
state registration percentage against another. ECF 75-7 25.
 While neither federal nor state law specifically defines every element voter list
maintenance program, states can find ample guidance and information regarding
commonly used list maintenance tasks and best practices. ECF 75-7 25. opinion, based experience and expertise and reasonable degree
confidence, the list maintenance tasks listed here are widely used among the states and
are effective tools maintaining official voter list that accurate possible. 
ECF 75-7 26.
Secretary Handel then compared these standards Indiana list maintenance efforts and found
that Indiana efforts fell significantly short. Handel Report, ECF 75-7 30, 32-33, 34-42; See
also Plfs. SOF, ECF 7-8, 10-13, 10, 25, 28-29, 32, 35.
Furthermore, Indiana suggestion that knowing and speaking intelligently about the law
might disqualify Secretary Handel from evaluating Indiana voter list maintenance efforts
shows just how far removed from standard industry practices Indiana has become. significant
part chief state election official job know and understand the election laws, because
Case 1:12-cv-00800-WTL-TAB Document Filed 11/26/13 Page PageID 968
the official responsible for executing those laws and seeing them carried out his her
state. Defendants Deckard, King, and Lawson collectively knew, understood, and executed
their list maintenance responsibilities well Secretary Handel did, then Indiana would not
likely before this Court. expert witness NVRA Section case obligated discuss the law because the
law forms the necessary backdrop for state list maintenance efforts. states were not under
federal obligation maintain accurate voter rolls, standards and practices would quite
different. Indeed, the very concept standard care legal one, and yet courts routinely
look non-lawyer medical doctors opine the standard care their field and whether
defendant has met that standard. See Musser Gentiva Health Servs., 356 F.3d 751, 760 (7th
Cir. 2004) show medical malpractice [a] plaintiff must present expert testimony
establish the applicable standard care and show whether the defendant conduct falls below
the standard care. this case, the standard care imposed NVRA Section any
expert report the field election administration must demonstrate knowledge and
understanding the requirements this particular law. The fact that the NVRA also uses the
term reasonable does not foreclose expert evaluation what reasonable practice
based variety facts presented, Secretary Handel did her report. Handel Report, ECF
75-7 30, 32-33, 34-42; Plfs. SOF, ECF 7-8, 10-13, 10, 25, 28-29, 32, 35. And
while only this Court can pass legal judgment Indiana efforts under the NVRA, Secretary
Handel assessment what reasonable and unreasonable matter common practice
sufficiently probative aid this Court making that judgment.
Lastly, Indiana argues that the Handel Report not scientific evidence, and should excluded. Indiana Opp., ECF 19-20. Secretary Handel report has not been offered
Case 1:12-cv-00800-WTL-TAB Document Filed 11/26/13 Page PageID 969
scientific evidence. Secretary Handel not scientist. Rather, she knowledgeable and
experienced former state election official who has record success carrying out her duties
and responsibilities. Secretary Handel testimony must evaluated under the standard for nonscientific experts used the Seventh Circuit: admissible reasoned, uses the methods the discipline, and founded data. Lang Kohl Food Stores, Inc., 217 F.3d 919, 924
(7th Cir. 2000). The Handel Report satisfies all these criteria. First, the report reasoned. Its
conclusions are based analysis voter roll and census data and industry practices
across the states. See ECF 75-7 order form opinions, have reviewed the
demographer analysis, well the excerpts from the Census which relied and the EAC
2011 Report data submitted Indiana. ECF 75-7 For this reason... benchmarking the
practices across the states the most meaningful and relevant approach. Second, the report
relies methods and practices common the election administration industry. ECF 75-7
21-27. Finally, the report founded data: specifically, data from appropriate, standardsmaking bodies (the DOJ, the EAC, and the NASS) and data relevant analyzing voter roll
accuracy from the U.S. Census Bureau and the EAC. ECF 75-7 14-20, 20-21.
Indiana has Failed Create Genuine Dispute Fact Over its NVRA Violations undisputed that: (1) Indiana voter rolls were inaccurate, and (2) given Indiana
inaccurate voter rolls, Indiana efforts maintain its rolls were unreasonable industry
standards. Furthermore, there genuine dispute fact Plaintiffs injuries and standing bring this action. Finally, undisputed that Indiana violated its obligation produce
records about its voter list maintenance efforts when Plaintiffs requested them. Accordingly,
summary judgment all Plaintiffs claims appropriate.
Case 1:12-cv-00800-WTL-TAB Document Filed 11/26/13 Page PageID 970
Plaintiffs Undisputed Evidence Proves Indiana Voter Rolls Were Inaccurate
Indiana does not dispute Plaintiffs empirical evidence about the poor condition its
voter rolls, nor could it. Voter rolls exceeded 100% TVAP counties, and Indiana
registered voter totals statewide exceed the national average. Plfs. SOF, ECF 7-8, 
5-10. Again, there dispute about these facts. Indiana tries claim that these undisputed
facts not mean that its rolls are inaccurate. Indiana Opp., ECF 25. But, that claim not
supported any evidence other than Eitan Hersh report, which Plaintiffs have demonstrated
unreliable and irrelevant, and therefore inadmissible. Plfs. Opp., ECF 18-21. Plaintiffs have demonstrated, the undisputed evidence about the condition Indiana
voter rolls constitutes per violation Section because, Indiana had undertaken
reasonable list maintenance efforts, its registered voter totals would not exceed its TVAP
otherwise high relative its population. Plaintiffs undisputed evidence establishes
rebuttable presumption that Indiana voter rolls are inaccurate. See Basic Inc. Levinson, 485
U.S. 224, 229-230 (1988) (courts can create rebuttable presumptions for evidentiary practicality).
Indiana has not put forth any facts explain why its voter rolls are inaccurate despite any
reasonable voter list maintenance efforts, and its opportunity for doing summary judgment
has now passed.
Having more registered voters than TVAP cannot explained Indiana waiting two
federal election cycles before removing from the rolls those voters who have moved, but failed
answer inquiries otherwise confirm their new addresses writing. U.S.C. 1973gg6(b)(2)(A) and (B). For this the case, Indiana would have demonstrate first that was
conducting regular removal mailings, which was not (ECF 12, 30-32), and second that
the actual registration rates counties where the number registered voters exceeds TVAP was
Case 1:12-cv-00800-WTL-TAB Document Filed 11/26/13 Page PageID 971
nearly 100%. such evidence has been offered, nor could be. National average voter
registration rates are between 78% and 85% population 2010 depending the EAC
measurement used, and Indiana percentages were several points higher every measure.
Plfs. Opp., ECF 24-25. Indiana voter registration rolls undisputedly are highly
Indiana counter-argument that Plaintiffs evidence does not matter. Indiana Opp.,
ECF 25. But this counter-argument does not create genuine dispute material fact.
Since there genuine dispute material fact that the number voters Indiana voter
registration rolls exceeds TVAP and that Indiana rolls are highly inaccurate, Plaintiffs are
entitled summary judgment based Indiana per violation NVRA Section
Plaintiffs Undisputed Evidence Proves Indiana Did Not Undertake
Reasonable Voter List Maintenance Activities
The compelling, undisputed evidence Indiana highly inaccurate voter rolls proof
that Indiana list maintenance efforts are unreasonable. Plfs. SOF, ECF 7-8, 5-10;
Plfs. Br., ECF 19-20; Plfs. Opp., ECF 22-25. demonstrated above Section
II.A., this undisputed evidence constitutes per violation Section or, alternatively,
creates rebuttable presumption violation Section that Indiana has, fact, failed
rebut. minimum, this same undisputed evidence, when considered combination with
additional undisputed evidence about Indiana very limited list maintenance efforts, also
constitutes violation Section
First, Indiana fails dispute Secretary Handel description standard industry
practices for maintaining voter lists. Indeed, Indiana has offered expert testimony (or
evidence any kind) identify what other different standards apply states list
maintenance efforts. Instead, Indiana essentially argues that there are standards. Indiana
Case 1:12-cv-00800-WTL-TAB Document Filed 11/26/13 Page PageID 972
claims that the reasonable efforts requirement NVRA Section almost entirely
meaningless and matter unfettered discretion the part state election officers. Indiana
Br., ECF 13-14. Indiana Opposition mere rehash the argument that this Court
must defer Indiana. Indiana Opp., ECF 30-32. Indiana even suggests there room
for judicial interpretation this federal statute. Indiana Opp., ECF (Indiana meets the
standard reasonable efforts, the extent that such determination can made. Plaintiffs
have already rebutted these arguments. Plfs. Opp., ECF 13-18.
Plaintiffs evidence has not been disputed. discussed more detail above Section
I.B., Secretary Handel described extensive detail the industry standards for states 
performance voter list maintenance. She reviewed Indiana written discovery responses and
the testimony Indiana witnesses, the evidence concerning the condition Indiana voter
rolls, and multiple sources publicly available information standards for list maintenance
and election administration, including information published the National Association
Secretaries State, the DOJ, and the EAC. Based this information and her knowledge and
experience the former Secretary State Georgia responsible for Georgia compliance
with NVRA Section Secretary Handel concluded that the State Indiana list maintenance
efforts were not reasonable. Plfs. SOF, ECF 12, 35.
Faced with damning report from Secretary Handel, Indiana reduced trying
exclude the report order create genuine dispute material fact. Indiana Opp., ECF
9-12. Indiana wrong the facts and wrong the law this regard, discussed above
Section Indiana remaining arguments about its list maintenance efforts are mere legal
quibbles dressed facts. claims that the Indiana Department Health was only required negotiate with other states for out state death data, not actually succeed obtaining it.
Case 1:12-cv-00800-WTL-TAB Document Filed 11/26/13 Page PageID 973
ECF also argues the Election Division was powerless with respect county election
officials, which dubious claim considering that these offices are creations state law. ECF 9-10. The more salient point the Co-Directors never really tried. ECF 10, 23.
Indiana also cites inapposite procedure for the routine handling undeliverable mail, which
fails show NVRA compliance. ECF 11; ECF 12, 30-32.
Finally, the Indiana General Assembly passage House Enrolled Act (HEA) 1391 and
Senate Enrolled Act (SEA) 591, signed Governor Pence May 2013, does not justify
excuse the failure comply with NVRA Section demonstrate that violation occurred.
Indiana Opp., ECF 24-25. anything, demonstrates that Indiana political leadership
agrees with Plaintiffs that Indiana has been failing its duty undertake reasonable voter list
maintenance efforts. The May 2013 legislation essentially direction from Indiana political
leadership its election officials start improving the state voter rolls, spelling out detail
the specific, necessary list maintenance steps that Defendants have failed undertake the
past. Furthermore, HEA 1391 and SEA 519 not guarantee that Indiana will avoid future
NVRA Section violations, because Indiana has history not enforcing its own state laws
concerning voter list maintenance. Plfs. SOF, ECF 10, 11-12, 23. federal
injunction ordering Defendants fully execute the list maintenance provisions HEA 1391 and
SEA 519 and report back the Court their progress cleaning the voter rolls would
likely serve remedy Indiana systemic failure undertake reasonable list maintenance.
Plaintiffs Undisputed Evidence Proves Plaintiffs Were Injured
Indiana also fails demonstrate the existence genuine dispute material fact about
Plaintiffs standing bring this lawsuit. Indiana argues that Plaintiff Judicial Watch refused
produce privileged information about its members. Indiana Opp., ECF 13-14. But Plaintiff
Case 1:12-cv-00800-WTL-TAB Document Filed 11/26/13 Page PageID 974
Judicial Watch properly asserted the privilege, Indiana failed challenge that privilege, the
requested information unnecessary demonstrate Plaintiff Judicial Watch standing bring
this lawsuit, and Indiana has legitimate need know the names Plaintiff Judicial Watch
members. Plfs. Opp., ECF 25-27, n4.
With respect Plaintiff True the Vote, Indiana asserts that continuing discovery
Plaintiff True the Vote standing and needs additional time determine facts, asking the Court defer summary judgment allow its discovery. Indiana Opp., ECF 14. Indiana
request should denied. November 2012, the Court set deadline requiring all discovery
necessary for the parties dispositive motions completed later than September 11, 2013.
ECF ECF Indiana already asked this Court for extension that deadline, and
its request was denied. ECF 66. Indiana unjustified failure adhere Court deadlines not sufficient justification for delaying this litigation and causing further prejudice Plaintiffs.
See ECF 4-5, quoting Entry Motion Intervene, March 20, 2013, ECF 50.
Finally, Indiana failed submit Rule 56(d) affidavit specifying why cannot present facts
essential justify its opposition Plaintiff True the Vote standing. Fed. Civ. Rule
56(d). Thus, not only has Indiana had ample opportunity over the course year pursue
whatever discovery Plaintiff True the Vote that believed required, but Indiana also has
failed comply with Rule 56(d). The Court may therefore conclude that Indiana has
meritorious argument with respect Plaintiff True the Vote standing.
Plaintiffs Undisputed Evidence Proves Indiana Violated its Obligation
Make Records Available
Indiana makes the feeblest efforts try dispute Plaintiffs demonstration that the
state violated Section records disclosure provision, devoting only two sentences its
opposition the issue. Indiana Opp., ECF 34. Plaintiffs have established that Section
Case 1:12-cv-00800-WTL-TAB Document Filed 11/26/13 Page PageID 975
requires Indiana make records its list maintenance efforts available the public upon
request, and that there genuine dispute material fact that Indiana failed so. Plfs. 
Br., ECF 27-28; Plfs. Opp., ECF 28-29. Indiana has submitted countervailing
evidence this claim, and its minor objections merely repeat legal arguments that have already
been rejected this Court. Indiana Opp., ECF 14-15. Plaintiffs are entitled summary
judgment matter law this claim.
Indiana Makes Various Mistakes Law Concerning NVRA Compliance
Rather than trying demonstrate the existence genuine disputes material fact,
Indiana makes number faulty legal arguments try avoid summary judgment. None
these arguments have merit.
The NVRA Careful Balancing Requires States Protect Both
Ballot Access and Election Integrity
Indiana cannot evade liability arguing that the NVRA does not adequately balance the
competing interests ensuring ballot access and protecting election integrity, and its recounting the history the NVRA omits key details. Indiana Opp., ECF 21-24. While Indiana
pleads for balance, Indiana the party that has disregarded the careful balance crafted
Congress, not Plaintiffs. The NVRA reflects compromise designed increase both lawful
voter registrations and the integrity voter rolls. The NVRA was enacted 1993 establish
procedures that will increase the number eligible citizens who register vote elections for
Federal office, well protect the integrity the electoral process and ensure that
accurate and current voter registration rolls are maintained. U.S.C. 1973gg(b)(1), (3)-(4). accomplish these twin goals, Section the NVRA, U.S.C. 1973gg-5, was
passed expand opportunities register vote. Along with these expanded opportunities,
Section the NVRA, U.S.C. 1973gg-6, was designed increase the integrity
Case 1:12-cv-00800-WTL-TAB Document Filed 11/26/13 Page PageID 976
elections requiring states perform maintenance their voter registration rolls ensure the
rolls are accurate. Section therefore functions counterpart Section The two
provisions represent carefully crafted compromise Congress increase both voter
registration and the integrity voter rolls. the Senate Report explains: important goal this bill, open the registration process, must balanced
with the need maintain the integrity the election process updating the
voting rolls continual basis. The maintenance accurate and up-to-date
voter registration lists the hallmark national system seeking prevent
voter fraud.7
Indiana obligated comply with both Section and Section and may sued for failing comply with either them has been the past. See NAACP Michael Gagano,
Secretary the Indiana Family and Social Services Administration, Order Approving
Settlement, Case No: 1:09-cv-0849-TWP-DML (S.D. Ind. Aug. 25, 2011); see also U.S. State Indiana, al., Consent Decree, Case No. 1:06-cv-01000-RLY-TAB (S. Ind. July 2006).
NVRA Section imposed federal standards for states list maintenance activities. Before
NVRA Section was enacted, the maintenance voter rolls was matter state discretion.8
Additional, enacting Section Congress included the change-of-address confirmation
requirement and the two federal election waiting period for unreachable, non-confirming
registrants safeguard order ensure that citizens would never get removed prematurely
from the rolls. U.S.C. 1973gg-6(b)(2)(A) and (B). With this safeguard, Section Rep. 103-6 17-18, reprinted Implementing the National Voter Registration Act 1993:
Requirements, Issues, Approaches, and Examples, Appendix Senate Rept. the Act, C-10,
Federal Election Commission FEC January 1994, avail.
voter_registration_act/related_documents.aspx (visited Nov. 18, 2013) 1994 FEC Guide
H.R. Rep. 103-9 States have used variety procedures guard against fraud and
maintain the integrity the electoral process.... This bill would prevent states from
implementing procedures that are responsive local conditions. reprinted 1994 FEC
Guide, Appendix House Rept., B-18.
Case 1:12-cv-00800-WTL-TAB Document Filed 11/26/13 Page PageID 977
prohibited the common practice the time simply removing registrations from the rolls
automatically every time voter missed election. explained the Senate Report:
One the purposes this bill ensure that once citizen registered
vote, she should remain the voting list long she remains
eligible vote that jurisdiction. The Committee recognizes that while voting right, people have equal right not vote, for whatever reason. However,
many States continue penalize such non-voters removing their names from
the voter registration rolls merely because they have failed cast ballot
recent election.9 long state obeying the NVRA address confirmation and two federal election statutory
safeguard, there reason why state should not able maintain voter rolls that are more
accurate than Indiana without removing lawfully registered voters. Indiana fails understand
this, instead complaining about the costs and expense performing list maintenance both
carefully and thoroughly, Section requires. Indiana SOF, ECF 6-7, 15-17.
However, Indiana had been doing what Congress instructed all along rather than evading its
duties, the financial impact the state would have been neutral over time.10
Instead, Indiana now argues should allowed opt out this Congressionally
brokered compromise because believes NVRA Section arrogant, unfunded mandate. 
Indiana Opp., ECF 21-14. This particular objection has already been litigated. Condon
Reno, 913 Supp. 946, 965-966 (D.S.C. 1995). Furthermore, Indiana repeating here shows
disregard not only for federal law but for the purposes election integrity, which Plaintiffs
take particular umbrage. The purpose election integrity, addition preventing voter fraud Rep. 103-6 17, reprinted 1994 FEC Guide, Appendix Senate Rept., C-9. Rep. 103-6 enactment the bill results more people registered, then the cost
such special mailings will greater. the other hand, the bill provisions that encourage
improved list-cleaning would result more accurate voter registration lists, and election
officials would save money not having mail voting materials prepare polling places
for people who longer would the lists. reprinted 1994 FEC Guide, Appendix
Senate Rept., C-22.
Case 1:12-cv-00800-WTL-TAB Document Filed 11/26/13 Page PageID 978
and election fraud, protect citizens confidence that elections are being conducted fairly and
honestly. the U.S. Supreme Court has stated, ensuring that elections are legitimate with
verifiable results has independent value unto itself. 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 Carter-Baker Report observed, the electoral system cannot inspire public confidence safeguards exist deter detect fraud confirm the identity voters. Purcell
Gonzalez, 549 U.S. (2006) 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.
Finally, Indiana claims has not maintained accurate voter rolls because concerned
that, did, might accidentally remove valid registrations and disenfranchise voters. Indiana
Opp., ECF 33. This nonsense. discussed above, Congress created the two federal
election waiting period safeguard prevent accidental removals, that states would not too
fearful their job protecting election integrity. But this not all Congress did ensure
voter rolls would cleaned. When Congress passed HAVA, created additional safeguard requiring states allow voters accidentally removed from the rolls cast provisional ballots. U.S.C. 15482; see also Democratic Party Virginia Virginia State Board Elections,
2013 U.S. Dist. Lexis 151713, (E.D. Va. Oct. 21, 2013) voter removed from the
voter rolls error, there are several mechanisms place protect that voter rights, including
provisional ballots and registration reinstatement. The purpose HAVA provisional ballot
law was ensure states followed their NVRA Section list maintenance responsibilities
Case 1:12-cv-00800-WTL-TAB Document Filed 11/26/13 Page PageID 979
eliminating the possibility they might disenfranchise voter doing so.11 Accordingly, the risk disenfranchisement from states cleaning their rolls has been reduced nearly zero, long
states follow federal law and use both the two federal election removal safeguard and the
provisional ballot safeguard. Indiana that has gotten the balance interests wrong, not
Plaintiffs. Removing Convicted Felons and Noncitizens From the Rolls Not Optional
Indiana mistaken that has federal obligation remove convicted felons and
noncitizens from its voter rolls. Indiana Opp., ECF 26. First, just last year federal district
court held that Section broad language does fact require states keep noncitizens off
the voter lists:
Both sides agree that state can remove improperly registered noncitizen.
For noncitizens, the state duty maintain accurate voting list. See, e.g., U.S.C. 1973gg-6(b). state can and should that the front end,
blocking noncitizen from registering the first place. And state finds has
made error--or number errors--and wishes correct the problem, should well advance [of federal election].
United States Florida, 870 Supp. 1346, 1351 (N.D. Fla. 2012).
Similarly, while the NVRA tells states they are permitted remove felons and mentally
incapacitated individuals when required state law, the same broad language cited the
Florida court demonstrates that states obligations maintain accurate voter rolls carries with implicit requirement ensure that only eligible voters are the rolls. Indiana convicts may
Statement Senator Bond, 148 Cong. Rec. S10488, S10489, S10491 (daily ed. October 16,
2002) Voters who not appear registration list must allowed cast provisional
ballot... believe these meaningful reforms will long way helping states clean voter
rolls, and thus clean-up elections The provisional ballot will extended those who arrive
the polls find that their name does not appear the register voters The intent
provide protection those who fact registered but not appear the register because
administrative mistake oversight.
Case 1:12-cv-00800-WTL-TAB Document Filed 11/26/13 Page PageID 980
not vote while incarcerated, which makes them ineligible. Ind. Code 3-7-13-4. Furthermore, Plaintiffs explained their initial brief, the list maintenance provisions Section 303
HAVA clarify and elaborate the states existing list maintenance obligations under Section the NVRA, and therefore can used interpret the latter. Plfs. Br., ECF 3-4, n2, n3.
Section 303 HAVA tells states uncertain terms they must work remove felons from
the rolls felons cannot vote under state law. U.S.C. 15483 (a) (2)(A)(ii) and (ii)(I) For
purposes removing names ineligible voters from the official list eligible voters... the
State shall coordinate the computerized list with State agency records felony status Way Has Indiana Satisfied the NVRA Safe Harbor
Indiana claim that satisfies the safe harbor provision Section rests mistaken
readings the provision. Indiana Opp., ECF 27-30. Section safe harbor requires
state obtain and use the U.S. Post Office NCOA database identify relocating voters and
follow the mail confirmation and removal procedures set forth the statute for those voters.
U.S.C. 1973gg-6(c)(1) and (d)(2). Indiana has not satisfied this safe harbor under any reading the provision. The FEC guidance12 following the passage the NVRA confirms this:
States local jurisdictions employing the NCOA program will need their own
software translate the input from the NCOA licensee. This software should
provide for the automatic updating addresses for registrants who have moved
within the jurisdiction... Confirmation notices both those who have changed
address within the jurisdiction and those who appear have moved outside the
jurisdiction should sent soon after the lists have been compared 
1994 FEC Guide, pp. 5-20 5-21. undisputed that Indiana never obtained the NCOA
database from the U.S. Post Office, nor did conduct regular list maintenance mailings. Plfs. 
SOF, ECF 12, 15-16, 30-32. Instead, Indiana argues that technically uses the
Prior the creation the EAC, Congress directed the FEC provide required information
the states concerning their responsibilities under the NVRA, which the FEC provided the 1994
FEC Guide. See 1994 FEC Guide, Preface, p.1; U.S.C. 1973gg-7(a)(4).
Case 1:12-cv-00800-WTL-TAB Document Filed 11/26/13 Page PageID 981
Post Office NCOA information, because, like anyone using the mail, Indiana occasionally
sends out mail that returned undeliverable, then uses that data for list maintenance purposes.
Indiana Opp., ECF 30. But the safe harbor provision requires states use change-ofaddress information supplied the Postal Service through its licensees update voter
addresses and send removal mailings. U.S.C. 1973gg-6(c)(1)(A). Indiana did not this.
Indiana also argues that can satisfy all Section merely complying with the
NCOA safe harbor procedure, without also having satisfy reasonableness requirement for
the removal deceased voters and other ineligible registrations. Indiana Opp., ECF
28. The FEC guidance again contradicts Indiana interpretation:
Finally, should said that the NCOA program not useful identifying those
who have died, those who have moved without filing change address,
those who may ineligible because criminal conviction mental incapacity.
1994 FEC Guide, 21. Accordingly, while state may claim safe harbor for conducting
program remove relocating voters obtaining and utilizing the NCOA database (which
Indiana has not done), may not claim safe harbor from the reasonable effort requirement
remove deceased other ineligible registrants. Indiana would therefore not have satisfied
Section even had obtained the NCOA database. Plfs. Br., ECF 24.
Indiana Mischaracterizes the Eighth Circuit Holding U.S. Missouri
Indiana incorrectly argues that U.S. Missouri only addresses state preemption local
election officials and does not address the question what the plain meaning NVRA
Section requires state officials do. Indiana Opp., ECF 32. the contrary, the Eighth
Circuit found that NVRA Section requires states lead and direct voter list maintenance
efforts and conduct active oversight programs that monitor local election officials list
Case 1:12-cv-00800-WTL-TAB Document Filed 11/26/13 Page PageID 982
maintenance activities. U.S. Missouri, 535 F.3d 844, 850-851 (8th Cir. 2008); Plfs. Br., ECF 20-22. discussing local election officials, the Eighth Circuit merely held that lack local
official compliance remains relevant indirect evidence state violations, support
for court injunction ordering state assume direct responsibility over county list
maintenance tasks. U.S. Missouri, 535 F.3d 851. Plaintiffs not opine here the
necessity injunction requiring Indiana assume control over local election officials list
maintenance tasks. But see Plfs. SOF, ECF 10, 12, 23, 30. Far more relevant
Plaintiffs abundant direct evidence Indiana lack state leadership and direction
reasonable list maintenance program, and Indiana lack any meaningful, active oversight
local officials. Plfs. SOF, ECF 7-8, 10-13, 10, 25, 28-29, 32, 35.
WHEREFORE, for all the forgoing reasons, Plaintiffs respectfully request that the Court
grant summary judgment all Plaintiffs claims and issue appropriate injunction.
Dated: November 26, 2013
Respectfully submitted, Christian Adams
Admitted Pro Hac Vice
300 Washington Street, Ste. 405
Alexandria, 22314
Tel: (703) 963-8611
/s/ Paul Orfanedes
Paul Orfanedes
David Langdon
Joshua Bolinger
8913 Cincinnati-Dayton Rd.
West Chester, Ohio 45069
Tel: (513) 577-7380
/s/ Chris Fedeli
Chris Fedeli
Admitted Pro Hac Vice
425 Third Street S.W., Ste. 800
Washington, 20024
Tel: (202) 646-5172
Fax: (202) 646-5199
Case 1:12-cv-00800-WTL-TAB Document Filed 11/26/13 Page PageID 983
CERTIFICATE SERVICE hereby certify that this 26th day November, 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