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Judicial Watch • JW v Grimes et al Kentucky complaint 00094

JW v Grimes et al Kentucky complaint 00094

JW v Grimes et al Kentucky complaint 00094

Page 1: JW v Grimes et al Kentucky complaint 00094

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Number of Pages:25

Date Created:November 15, 2017

Date Uploaded to the Library:November 15, 2017

Tags:Grimes, 00094, Frankfort, Elections, Kentucky, Members, notice, defendants, letter, complaint, Secretary, filed, plaintiff, COUNTY, board


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Case: 3:17-cv-00094-GFVT Doc Filed: 11/14/17 Page: Page ID#:
UNITED STATES DISTRICT COURT
EASTERN DISTRICT KENTUCKY
CENTRAL DIVISION
FRANKFORT
JUDICIAL WATCH, INC., behalf itself and certain its members,
425 Third Street, Ste. 800
Washington, D.C. 20024
Plaintiff,
Civil No. _______________
PLAINTIFF COMPLAINT
ALISON LUNDERGAN GRIMES, her official capacity Secretary
State and Chief Election Official the
Commonwealth Kentucky,
700 Capital Ave., Ste. 152,
Frankfort, Kentucky 40601
Franklin County
MARY SUE HELM, her official capacity Interim
Executive Director the Kentucky
State Board Elections,
140 Walnut Street
Frankfort, Kentucky 40601
Franklin County
ALBERT CHANDLER, III, his official capacity Member the
Kentucky State Board Elections,
140 Walnut Street
Frankfort, Kentucky 40601
Franklin County
DONALD BLEVINS, his official capacity Member the
Kentucky State Board Elections,
140 Walnut Street
Frankfort, Kentucky 40601
Franklin County
(Cont.)
Case: 3:17-cv-00094-GFVT Doc Filed: 11/14/17 Page: Page ID#:
JOSHUA BRANSCUM, his official capacity Member the
Kentucky State Board Elections,
140 Walnut Street
Frankfort, Kentucky 40601
Franklin County
STEPHEN HUFFMAN, his official capacity Member the
Kentucky State Board Elections,
140 Walnut Street
Frankfort, Kentucky 40601
Franklin County
GEORGE RUSSELL, his official capacity Member the
Kentucky State Board Elections,
140 Walnut Street
Frankfort, Kentucky 40601
Franklin County
and
MICHAEL ADAMS, his official capacity Member the Kentucky State Board Elections,
140 Walnut Street
Frankfort, Kentucky 40601
Franklin County
Defendants.
___________________________________
Plaintiff Judicial Watch, Inc., its attorneys, brings this action for declaratory and
injunctive relief and alleges follows:
INTRODUCTION
Plaintiff Judicial Watch, Inc. seeks declaratory and injunctive relief compel the
Commonwealth Kentucky comply with its voter list maintenance obligations and its record
production obligations, under Section the National Voter Registration Act 1993 NVRA U.S.C. 20507.
Case: 3:17-cv-00094-GFVT Doc Filed: 11/14/17 Page: Page ID#:
JURISDICTION AND VENUE
This Court has jurisdiction over this matter pursuant U.S.C. 1331, this
action arises under the laws the United States, and under U.S.C. 20510(b)(2), the
action seeks injunctive and declaratory relief under the NVRA.
Venue this Court proper under U.S.C. 1391(b) because substantial part the events omissions giving rise this action occurred this district.
Venue proper this Division because all Defendants perform their duties in,
and thus reside the City Frankfort, Franklin County, Kentucky. 3.2(a)(1), (e).
PARTIES
Plaintiff JUDICIAL WATCH, INC. Judicial Watch not-for-profit,
educational organization incorporated under the laws the District Columbia and
headquartered 425 Third Street SW, Suite 800, Washington, D.C. 20024. Its mission
promote transparency, integrity, and accountability government and fidelity the rule law. part this mission, Judicial Watch regularly requests records from state and local
governments pursuant federal and state laws, analyzes the responses and disseminates both its
findings and the requested records the American public inform about what the
government to. Judicial Watch will sue enforce compliance with federal and state laws
concerning the provision records, public integrity, government accountability, and voting
rights. has undertaken investigations and commenced other lawsuits enforce the NVRA.
Defendant ALISON LUNDERGAN GRIMES the Secretary State the
Commonwealth Kentucky (the Secretary and has served this capacity since January
2012. The Commonwealth Kentucky has designated the Secretary Chair the State Board
Case: 3:17-cv-00094-GFVT Doc Filed: 11/14/17 Page: Page ID#: Elections and the chief election official for the Commonwealth. KY. REV. STAT. ANN.
117.015(2); see U.S.C. 20509.
Defendant MARY SUE HELM the Interim Executive Director, and Defendants
ALBERT CHANDLER, III, DONALD BLEVINS, JOSHUA BRANSCUM,
STEPHEN HUFFMAN, GEORGE RUSSELL, and MICHAEL ADAMS are members the
Kentucky State Board Elections Board Elections Kentucky law provides that the
Board Elections maintain complete roster all qualified registered voters within the state county and precinct voters and compile all information furnished the board relating the
inclusion deletion names from the rosters for four (4) years. KY. REV. STAT. ANN.
117.025(3)(a), (d).
All Defendants are sued their official capacities only.
FACTUAL BACKGROUND
The NVRA requires states conduct general program that makes reasonable
effort remove the names ineligible voters from the official lists eligible voters.
U.S.C. 20507(a)(4).
Kentucky Excessive Registration Rates
10. June each odd-numbered year, the U.S. Election Assistance Commission EAC required law release report regarding state voter registration practices.
U.S.C. 20508(a)(3).
11. June 2017, the EAC published the most recent report 2017 EAC Report
that contained, inter alia, voter registration statistics based information provided the states.
12.
Whenever jurisdiction has more voter registrations than individuals old enough register other words, registration rate exceeding 100% adult residents strong
Case: 3:17-cv-00094-GFVT Doc Filed: 11/14/17 Page: Page ID#:
indication, recognized federal courts, that the jurisdiction not taking the steps required
law remove the registrations ineligible registrants.
13.
Judicial Watch analyzed the data the 2017 EAC Report and compared the
most recent census data determine the registration rates United States counties.
14.
Kentucky leads every other state the nation the number counties which
total registration greater than the voting-age population. Specifically, Kentucky counties
have more registered voters than voting-age residents.
15.
Judicial Watch also compared voter registrations citizen voting-age population.
Citizen voting-age population excludes noncitizens, who are not lawfully entitled register
vote federal state elections, and more meaningful way assess jurisdiction
registration rate than voting-age population alone.
16.
Kentucky leads every other state the nation the number counties which
total registration exceeds the citizen voting-age population. Specifically, the number voter
registrations exceeds the number age-eligible citizens Kentucky counties, 40% all
Kentucky counties.
17.
This represents large increase what was already one the highest state totals counties with citizen-adjusted registration rates exceeding 100%. Prior release the 2017
EAC Report, the data showed that Kentucky counties had more registered voters than citizens
over the age 18.
18.
The Commonwealth Kentucky whole has more statewide registrations than has resident citizens voting age. Kentucky one only three states the nation with
active, statewide registration rate exceeding 100%.
Case: 3:17-cv-00094-GFVT Doc Filed: 11/14/17 Page: Page ID#:
19.
Kentucky high registration rates indicate that not conducting general
program that makes reasonable effort cancel the registrations ineligible registrants.
Kentucky Failure Report Inactive Registrations
20.
Federal regulations require the states provide various kinds registration data the EAC for use its biennial report. This data supposed include the total number
registered voters statewide, including both active and inactive voters such distinction
made the state, for the last two general federal elections. C.F.R. 9428.7(b)(1), (2).
21.
Kentucky law has established inactive list for those voters who fail respond confirmation notice. KY. REV. STAT. ANN. 116.112(5).
22.
Kentucky failed report the EAC the number its inactive registrations
violation federal regulations.
23. Kentucky were conducting reasonable list maintenance, registrations routinely
would moved the inactive list for two general federal elections whenever registrants failed respond confirmation notice.
24.
Kentucky failure report this data suggests that not performing reasonable
voter list maintenance.
25.
Inactive registrants may vote Election Day, inactive registrations must
considered part state voter registration list. U.S.C. 20507(d)(2)(A).
26. failing include inactive registrations, Kentucky registration rates are made appear lower and more reasonable than they actually are. Stated differently, Kentucky had
reported inactive voter registrations the EAC required federal law, the number
Kentucky counties with registration rates exceeding 100% would even greater.
Case: 3:17-cv-00094-GFVT Doc Filed: 11/14/17 Page: Page ID#:
27. information and belief, Kentucky not querying voters who may have
moved, placing the registrations voters who not respond those queries its inactive list,
and then cancelling such registrations after two general federal elections, numbers that are
consistent with its obligation conduct general program that makes reasonable effort
cancel the registrations ineligible registrants.
Kentucky Failure Report Sending Any Confirmation Notices
28.
The NVRA provides that registration may cancelled the ground that
voter has moved elsewhere unless the registrant either confirms this fact writing fails
respond address-confirmation notice described the statute (the confirmation notice U.S.C. 20507(d)(1). The confirmation notice must incorporate postage prepaid and preaddressed return card, sent forwardable mail, asking the registrant confirm his her
residence address. Id. (d)(2). response received this notice, registration may
cancelled, but only following statutory waiting period lasting least two general federal
elections. Id. (d)(1)(B)(ii).
29.
Sending confirmation notices the primary method prescribed federal law for
determining whether someone who may have moved still resides electoral jurisdiction.
30.
Federal regulations require states provide the EAC for use its biennial
report the statewide number confirmation notices mailed out between the past two federal
general elections and responses received these notices during the same period. C.F.R.
9428.7(b)(8).
31.
Kentucky failed report the EAC the number confirmation notices sent
during the previous two-year period violation federal regulations.
Case: 3:17-cv-00094-GFVT Doc Filed: 11/14/17 Page: Page ID#:
32. information and belief, Kentucky not sending confirmation notices those
who are believed have moved rate that consistent with its obligation conduct
general program that makes reasonable effort cancel the registration ineligible registrants.
Judicial Watch Notice Letter and Defendants Responses
33. April 11, 2017, Judicial Watch sent NVRA Section notice violation
letter (the Notice Letter, Exhibit A), both email and certified mail the address for the
Secretary. According the U.S.P.S. tracking system, the Notice Letter was delivered April
19, 2017 700 Capital Ave., Suite 152, Frankfort, Kentucky, 40601, the mailing address for the
Secretary.
34.
The Notice Letter observed that there were more registered voters than citizens
voting age (at that time) Kentucky counties. The Notice Letter concluded that the
Commonwealth and these counties were not conducting reasonable list maintenance program
that complied with the NVRA.
35.
The Notice Letter stated that This letter serves statutory notice that Judicial
Watch will bring lawsuit against [the Secretary] [the Secretary] do[es] not take specific
actions correct these violations Section within days.
36.
The Notice Letter asked for written response within days informing
[Judicial Watch] the compliance steps [the Secretary is] taking, and described detail the
kinds compliance-related information being sought.
37.
Citing Section 8(i) the NVRA, the Notice Letter also requested all pertinent
records concerning the implementation programs and activities conducted for the purpose
ensuring the accuracy and currency Kentucky official eligible voter lists during the past
years. Please include these records with [the Secretary response this letter.
Case: 3:17-cv-00094-GFVT Doc Filed: 11/14/17 Page: Page ID#:
38.
The Notice Letter constitutes statutory notice, pursuant U.S.C.
20510(b)(1), violations Sections 8(a)(4) and 8(i) the NVRA.
39.
Judicial Watch received response dated April 25, 2017 via U.S. Mail (the
Response Letter, Exhibit from Maryellen Allen, then Executive Director the Board
Elections.
40.
The Response Letter made mention Judicial Watch demand the Notice
Letter that Defendants identify the compliance steps [the Secretary is] taking remedy its
failings meet its obligations under Section 8(a)(4) the NVRA, and did not address
Judicial Watch allegations that Kentucky counties had more registered voters than citizen
voting-age population. Instead, the Response Letter only discussed Judicial Watch requests for
documents.
41. response Judicial Watch request for copies the most recent voter
registration database, the Response Letter stated that the [Board Elections] objects this
request pursuant [KY. REV. STAT. ANN. 117.025(3)(h) Judicial Watch not duly
qualified candidate[], political party committee[] official[] thereof, any committee that
advocates opposes amendment public question, adding that the [Board Elections]
denied [Judicial Watch request.
42. response the other requests for documents the Notice Letter, the Board
Elections indicated they will use its best efforts make available [Judicial Watch] any
responsive, non-exempt public records its care, custody control before June 26,
2017.
43. letter dated June 26, 2017 (the Second Response Letter, Exhibit C),
Director Allen wrote update the status the non-exempt record search. The Second
Case: 3:17-cv-00094-GFVT Doc Filed: 11/14/17 Page: Page ID#:
Response Letter stated that the Board Elections still the process preparing this
information and will use its best efforts make available [Judicial Watch] any responsive,
nonexempt public record before August 2017.
44.
The Second Response Letter again made mention Judicial Watch request the Notice Letter that Defendants identify the compliance steps [the Secretary is] taking
remedy its failings meet its obligations under Section 8(a)(4) the NVRA. Once again,
the Second Response Letter only discussed Judicial Watch requests for documents.
45. the date this complaint, there have been further communications from
Defendants Judicial Watch concerning either (1) compliance with the list maintenance
provisions the NVRA, (2) the production records the Secretary the Board
Elections.
Judicial Watch Interest Compliance With the NVRA
46. part its mission promote transparency, integrity, and accountability
government and fidelity the rule law, Judicial Watch regularly requests records from state
and local governments pursuant Section 8(i) the NVRA. Judicial Watch analyzes all
responses, well federal, state, and local data from any available source, determine
whether jurisdictions are properly maintaining accurate voter rolls required Section 8(a)(4) the NVRA. believes that jurisdiction not complying with Section the NVRA,
Judicial Watch will sue under U.S.C. 20510(b) enforce that statute. pursuit this
particular mission, Judicial Watch recently wrote eleven other states besides Kentucky
inform them perceived violations the NVRA and request NVRA-related documents.
Judicial Watch has current NVRA lawsuit against Maryland and Montgomery County,
Maryland, and the recent past has sued and resolved NVRA cases against Ohio and Indiana.
Case: 3:17-cv-00094-GFVT Doc Filed: 11/14/17 Page: Page ID#:
Judicial Watch also has submitted several friend-of-the-court briefs all levels the federal
court system cases concerning enforcement the NVRA.
47.
Kentucky failure comply with Section the NVRA has caused and will
cause Judicial Watch expend significant, additional resources achieve its basic
organizational mission.
48. person becomes member Judicial Watch making financial
contribution, any amount, the organization. The financial contributions members are
far the single most important source income Judicial Watch and provide the means
which the organization finances its activities support its mission.
49.
Judicial Watch has approximately 12,102 members the Commonwealth
Kentucky. membership organization, Judicial Watch represents the interests these
members, many whom are lawfully registered vote and have the right vote Kentucky,
including the right vote elections for federal office.
50.
Judicial Watch solicits the views its members carrying out activities
support its mission, including the views its members Kentucky. The views Judicial
Watch members significantly influence how Judicial Watch chooses activities engage
further its mission.
51.
About 1,187 Judicial Watch Kentucky members have email address and
have contributed $10 more Judicial Watch within the past two years. One hundred and
thirty (130) these members who are lawfully registered vote Kentucky have directly
informed Judicial Watch that they are concerned about Kentucky failure satisfy its voter list
maintenance obligations under Section the NVRA, and wish Judicial Watch take legal
Case: 3:17-cv-00094-GFVT Doc Filed: 11/14/17 Page: Page ID#:
action their behalf protect their right vote. The views Judicial Watch members were substantial factor weighing favor the initiation this lawsuit.
52.
Protecting the rights Judicial Watch members who are lawfully registered
vote Kentucky part Judicial Watch mission promoting integrity, transparency, and
accountability government and fidelity the rule law, ensuring compliance with the
voter list maintenance obligations Section the NVRA and protecting the integrity the
election process general. also well within the scope the reasons why members
Judicial Watch join the organization and continue support its mission.
53.
Members Judicial Watch who are lawfully registered vote Kentucky not
only have the constitutional right vote state elections, including elections for federal office,
but they also have statutory right the safeguards and protections set forth the NVRA.
54.
Kentucky failure comply with the NVRA inflicts burden the
constitutional right vote those members Judicial Watch who are lawfully registered
vote the Commonwealth, undermining their confidence the integrity the electoral
process, discouraging their participation the democratic process, and instilling them the fear
that their legitimate votes will outweighed fraudulent ineligible ones.
55.
Kentucky failure satisfy its voter list maintenance obligations under Section the NVRA infringes the statutory rights those members Judicial Watch who are lawfully
registered vote Kentucky. Those individuals have statutory right vote elections for
federal office that comply with the procedures and protections required the NVRA, including
the voter list maintenance obligations set forth Section the NVRA.
56.
Absent action Judicial Watch, unlikely that any individual member Judicial Watch who lawfully registered vote Kentucky would have the ability
Case: 3:17-cv-00094-GFVT Doc Filed: 11/14/17 Page: Page ID#: the resources take legal action protect his her rights redress his her injuries with
respect Kentucky failure satisfy its voter list maintenance obligations under Section
the NVRA.
57.
Judicial Watch and its Kentucky members are persons aggrieved violation
the NVRA, set forth U.S.C. 20510(b)(1).
COUNT
(Violation Section 8(a)(4) the NVRA, U.S.C. 20507(a)(4))
58.
Plaintiff realleges all preceding paragraphs fully set forth herein.
59.
Defendants have failed fulfill Kentucky obligations under Section 8(a)(4)
the NVRA conduct general program that makes reasonable effort cancel the
registrations registrants who are ineligible vote Kentucky elections.
60.
Plaintiff Judicial Watch and its members have suffered, and will continue
suffer, irreparable injury direct result Defendants failure fulfill Kentucky obligations comply with Section 8(a)(4) the NVRA.
61.
Plaintiff Judicial Watch and its members have adequate remedy law.
COUNT
(Violation Section 8(i) the NVRA, U.S.C. 20507(i))
62.
Plaintiff realleges all preceding paragraphs fully set forth herein.
63.
Defendants have failed fulfill Kentucky obligations under Section 8(i) the
NVRA make available Judicial Watch all records within the past two years concerning
the implementation programs and activities conducted for the purpose ensuring the
accuracy and currency official lists eligible voters.
Case: 3:17-cv-00094-GFVT Doc Filed: 11/14/17 Page: Page ID#:
64. the extent that Judicial Watch right obtain access voting records
described Section 8(i) the NVRA limited foreclosed KY. REV. STAT. ANN.
117.025, any other Kentucky statute, those Kentucky statutes are superseded and
preempted the provisions Section 8(i) the NVRA, and are invalid and unenforceable
against Judicial Watch.
65.
Plaintiff Judicial Watch and its members have suffered, and will continue
suffer, irreparable injury direct result Defendants failure fulfill Kentucky obligations comply with Section 8(i) the NVRA.
66.
Plaintiff Judicial Watch and its members have adequate remedy law.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for entry judgment:
Declaring Defendants violation Section 8(a)(4) the NVRA;
Permanently enjoining Defendants from violating Section 8(a)(4) the NVRA;
Ordering Defendants develop and implement general program that makes
reasonable effort remove from Kentucky rolls the registrations ineligible registrants;
Declaring that Section 8(i) the NVRA supersedes and preempts any contrary
Kentucky law;
Declaring that Defendants are violation Section 8(i) the NVRA
refusing allow Judicial Watch inspect and copy the requested records;
Permanently enjoining Defendants from refusing allow Judicial Watch
inspect and copy the records Judicial Watch requested;
Ordering Defendant pay Judicial Watch reasonable attorney fees, including
litigation expenses and costs; and
Case: 3:17-cv-00094-GFVT Doc Filed: 11/14/17 Page: Page ID#:
Awarding Judicial Watch such other and further relief this Court deems just
and proper.
Dated:
November 14, 2017
Respectfully submitted,
/s/ Mark Wohlander
Mark Wohlander
Wohlander Law Office, PSC
P.O. Box 910483
Lexington, Kentucky 40591
mark@wohlanderlaw.com
Office: (859) 309-1691
Facsimile: (859) 309-1698
Cellular: (859) 361-5604
Co-Counsel for Plaintiff
Robert Popper
JUDICIAL WATCH, INC.
425 Third Street S.W., Ste. 800
Washington, 20024
rpopper@judicialwatch.org
Office: (202) 646-5172
Facsimile: (202) 646-5199
Co-Counsel for Plaintiff
[Moving Pro Hac Vice] Christopher Coates
Law Offices Christopher Coates
934 Compass Point
Charleston, South Carolina 29412
curriecoates@gmail.com
Cellular: (843) 609-7080
Co-Counsel for Plaintiff
[Moving Pro Hac Vice]
Thomas Clay
Clay Daniel Walton Adams, PLC
462 South Fourth Street, Suite 101
Louisville, Kentucky 40202
tclay@tclaylaw.com
Office: (502) 561-2005
Facsimile: (502) 415-7505
Co-Counsel for Plaintiff
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