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Judicial Watch • JW v Grimes KY Consent 00094

JW v Grimes KY Consent 00094

JW v Grimes KY Consent 00094

Page 1: JW v Grimes KY Consent 00094

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Number of Pages:17

Date Created:July 5, 2018

Date Uploaded to the Library:July 06, 2018

Tags:Grimes, 00094, registrants, Registration, Kentucky, Election, voter, order, states


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Case: 3:17-cv-00094-GFVT-EBA Doc Filed: 07/03/18 Page: Page ID#: 282
UNITED STATES DISTRICT COURT
EASTERN DISTRICT KENTUCKY
CENTRAL DIVISION
FRANKFORT
JUDICIAL WATCH, INC.,
Plaintiff,
UNITED STATES AMERICA,
Plaintiff Intervenor,
ALISON LUNDERGAN GRIMES, al.,
Civil No. 3:17-cv-00094-GFVT
CONSENT JUDGMENT
Defendants.
*** *** *** ***
This matter before the Court the parties Proposed Agreed Order. [R. 33.] Judicial
Watch, Inc. filed Complaint alleging violations Section the National Voter Registration
Act 1993 (NVRA). U.S.C. 20507. The United States America filed Complaint
Intervention this matter, alleging violations Section the NVRA, with the agreement
all the parties. indicated the proposed order, the parties, through counsel, have conferred and
agreed that this action should settled without the delay and expense litigation. [R. 33.] The
parties share the goals (1) improving the accuracy voter registration records through
general program that makes reasonable effort remove the names ineligible voters from the
official lists registered voters and (2) ensuring that Kentucky residents are not removed from
official lists registered voters absent the procedural safeguards set forth the NVRA.
Accordingly, the parties have negotiated good faith and hereby agree the entry this
Agreed Order appropriate resolution.
Case: 3:17-cv-00094-GFVT-EBA Doc Filed: 07/03/18 Page: Page ID#: 283
The parties stipulate and agree the following:
The Court has jurisdiction over this action pursuant U.S.C. 20510(a) and U.S.C. 1331 and 1345.
Venue proper this district pursuant U.S.C. 97(a) and 1391(b).
The NVRA authorizes the Attorney General the United States bring civil
action for such declaratory injunctive relief necessary carry out the Act. U.S.C.
20510(a).
Judicial Watch brings suit under the NVRA private right action, U.S.C.
20510(b), and this Court has subject matter jurisdiction over its claims, which arise under federal
law. U.S.C. 1331.
The Commonwealth Kentucky, Commonwealth Kentucky State Board
Elections, and Kentucky Secretary State are proper parties this action.
The Commonwealth Kentucky one the States the United States
America and subject the requirements the NVRA. U.S.C. 20502(4), 20503, 20507.
The Commonwealth Kentucky, through its State Board Elections,
responsible for administering Kentucky election laws and supervising the registration and
purging registrants within the State. KRS 117.015(1). The Secretary State the
officio chair the Kentucky State Board Elections and Kentucky chief State election
official, and responsible for coordinating the State responsibilities under the NVRA. See
U.S.C. 20509; KRS 117.015(2).
The NVRA was enacted establish procedures that will increase the number
eligible citizens who register vote elections for Federal office while ensur[ing] that
accurate and current voter registration rolls are maintained. U.S.C. 20501(b)(1), (4).
Case: 3:17-cv-00094-GFVT-EBA Doc Filed: 07/03/18 Page: Page ID#: 284
Section the NVRA Section addresses state voter list maintenance
procedures for elections for federal office. U.S.C. 20507
10.
Section prescribes the conditions under which registrants may removed from
voter registration lists and the procedures that must followed before making those removals. U.S.C. 20507.
11.
Programs maintain accurate and current voter registration lists must uniform
and nondiscriminatory, and they must comply with the Voting Rights Act. U.S.C.
20507(b)(1).
12.
Programs maintain accurate and current voter registration lists may not remove
registrants reason registrant failure vote, except provided the procedures under
Sections 8(c) and (d). U.S.C. 20507(b)(2).
13.
Section permits states remove the name person from the voter
registration lists upon the request the registrant, and, state law provides, for mental
incapacity for criminal conviction. U.S.C. 20507(a)(3)(A) (B).
14.
Section also requires states conduct general voter registration list
maintenance program that makes reasonable effort remove persons from the voter list who
have become ineligible reason death change residence outside the jurisdiction,
accordance with procedures set forth the NVRA. U.S.C. 20507(a)(4).
15.
Section further specifies the two circumstances under which registrant may
removed from the voter registration list because the registrant has moved another jurisdiction. U.S.C. 20507(d)(1).
Case: 3:17-cv-00094-GFVT-EBA Doc Filed: 07/03/18 Page: Page ID#: 285
16.
First, state can remove the name person from the voter registration list
grounds change residence based upon the registrant written confirmation change
address location outside the registrar jurisdiction. U.S.C. 20507(d)(1)(A).
17.
Second, state can remove the name person from the voter registration list
grounds change residence upon completion the process set forth Section 8(d),
U.S.C. 20507(d), which allows removal if: (a) The registrant fails respond notice Section 8(d)(2) notice which includes postage prepaid and preaddressed return card sent
forwardable mail, which the registrant may state his her current address, and which
contains specific instructions and information, U.S.C. 20507(d)(1)(B)(i), (d)(2), and (b) The
registrant then fails vote appear vote during the period ending the day after the second
federal general election subsequent the Section 8(d)(2) notice being sent. U.S.C.
20507(d)(1)(B)(ii).
18.
Section 8(f) provides that when registrant has change-of-address address
within the same jurisdiction, the voter registration list must updated accordingly and the
registrant name may not removed except provided Section 8(d). U.S.C. 20507(f).
19.
Section also provides example list maintenance program that constitutes reasonable effort remove registrants who have become ineligible due change
residence. U.S.C. 20507(c)(1). Under this program, state uses information from the
United States Postal Service National Change Address (NCOA) program identify
registrants who may have changed residence. U.S.C. 20507(c)(1)(A). Where appears
from that information that registrant has moved new address the same jurisdiction, the
registration record updated show the new address and the registrant sent notice the
change forwardable mail that includes postage-prepaid, pre-addressed return form which
Case: 3:17-cv-00094-GFVT-EBA Doc Filed: 07/03/18 Page: Page ID#: 286
the registrant may verify correct the address information. U.S.C. 20507(c)(1)(B)(i).
Where appears from the NCOA information that registrant has moved new address
different jurisdiction, the procedure set out Section 8(d) and described above used
confirm the address change. U.S.C. 20507(c)(1)(B)(ii).
20.
Section requires states complete any program, the purpose which
systematically remove the names ineligible registrants from the official list eligible voters,
not later than days prior the date primary election general election for federal office. U.S.C. 20507(c)(2)(A).
21.
Kentucky law requires the Kentucky State Board Elections establish voter
registration removal program using the change-of-address information supplied the United
States Postal Service through its licensees other sources identify registrants whose
addresses may have changed. KRS 116.112(1).
22. appears that registrant has moved within the same county, the Kentucky
State Board Elections required provide the county board elections with the information
necessary change the registration record. The Kentucky State Board Elections also
required send the new address notice the change forwardable mail and postage
prepaid, pre-addressed return form which the registrant may verify correct the address
information. KRS 116.112(2).
23. appears that registrant has moved different county state, the
Kentucky State Board Elections required send the address which the registrant was
last registered, forwardable mail, notice with postage-prepaid and pre-addressed return
card which the registrant may state his her current address. KRS 116.112(3).
Case: 3:17-cv-00094-GFVT-EBA Doc Filed: 07/03/18 Page: Page ID#: 287
24. registrant may not removed from the registration records the ground that
the registrant has changed residence unless the registrant: (a) Confirms writing that the
registrant has changed residence place outside the county; (b) Has failed respond the
mailed notice and has not voted appeared vote and, necessary, correct the registrant
address, election during the period beginning the date the notice and ending the
day after the date the second general election for Federal office that occurs after the date the
notice. KRS 116.112(4).
25. part its list maintenance program, the Kentucky State Board Elections
required state law maintain inactive list. State law provides that when the State Board
sends the notices described KRS 116.112(3) registrants identified having moved
new county state, the registrants who not respond the notice and not vote appear
vote for two federal election cycles are maintained inactive list. KRS 116.112(5). When
the State Board last sent such notices 2009, those registrants who did not respond the notice
and did not vote appear vote for two federal election cycles were included inactive
list and ultimately 67,743 individuals were removed from the registration list.
26.
Kentucky law permits registrants the inactive list vote, but not counted
for other purposes such creating precincts calculating the state funding provided county
clerks based the number registered voters the county. KRS 116.112(7).
27.
Kentucky law requires the Kentucky State Board Elections complete, not
later than ninety days prior the date primary general election, any program the purpose which systematically remove the names ineligible voters from the registration records.
KRS 116.112(6).
Case: 3:17-cv-00094-GFVT-EBA Doc Filed: 07/03/18 Page: Page ID#: 288
28.
The Kentucky State Board Elections maintains and follows registration
removal program that since 2011, has removed 424,429 individuals from Kentucky voter rolls
due individual death, felon status, mental incompetence, move out state with their
written confirmation, their request. The Kentucky State Board Elections has been unable secure sufficient funding implement its list maintenance procedures registrants who
have moved without notifying election motor vehicle authorities, despite seeking funding
from the General Assembly for these efforts every budget request since 2008. Currently, there
are registrants inactive list the process set out Section 8(d) the NVRA and
KRS 116.112. Since 2009, forwardable notices have been mailed registrants under the
change address process contemplated Section 8(d) the NVRA and KRS 116.112.
Since 2015, registrants who have become ineligible due change residence have been
removed contemplated the procedures set out Section 8(d) the NVRA and KRS
116.112.
29.
Due this lack funding, the practices currently place Kentucky not
comply with the NVRA requirement that states conduct general voter registration list
maintenance program that makes reasonable effort remove ineligible persons from the voter
rolls due change residence outside the jurisdiction. U.S.C. 20507(a)(4)(B).
30.
The parties agree work fair, reasonable, and collaborative fashion under the
terms this Agreed Order set forth below.
Where the parties having freely given their consent, and the terms this Agreed Order
being fair, reasonable, and consistent with the NVRA requirements, hereby ORDERED,
ADJUDGED, and DECREED follows:
Case: 3:17-cv-00094-GFVT-EBA Doc Filed: 07/03/18 Page: Page ID#: 289
31.
The Kentucky State Board Elections shall develop and implement general
program statewide voter list maintenance that makes reasonable effort remove from the
statewide voter registration list the names registrants who have become ineligible due
change residence accord with section the NVRA, U.S.C. 20507, and KRS
116.112. The general program:
(a) Shall uniform, nondiscriminatory, and compliance with the Voting Rights
Act, U.S.C. 10301 seq.;
(b) Shall not result the removal any registrant from the statewide voter
registration list reason the registrant failure vote, except provided
under sections 8(c) and (d) the NVRA;
(c) Shall comply with the standards and procedures set out sections 8(b)-(d) the
NVRA and KRS 116.112;
(d) Shall require all systematic list maintenance activities relating the removal
registrants due change residence completed least days prior
the next primary general election for federal office provided section
8(c)(2)(A) the NVRA (with the exceptions noted section 8(c)(2)(B) the
NVRA) and KRS 116.112(6); and
(e) Shall base removals due change residence only either: (1) the
registrant written confirmation change address outside the jurisdiction,
(2) the registrant (a) failing respond forwardable notice sent the
Kentucky State Board Elections its designee, which meets the requirements section 8(d)(2) the NVRA and KRS 116.112(3), and (b) failing vote
Case: 3:17-cv-00094-GFVT-EBA Doc Filed: 07/03/18 Page: Page ID#: 290
appear vote during the period ending the day after the second federal
general election subsequent the notice being sent.
Comprehensive Plan
32. assist the establishment the general program described above, the
Kentucky State Board Elections shall create Comprehensive Plan and implement and adhere its terms.
33.
Within days the effective date this Agreed Order, the Kentucky State
Board Elections shall provide counsel for the parties with its draft Comprehensive Plan. The
parties shall have days respond. the parties cannot good faith agree upon the terms appropriate Plan within days the date the last response, the parties may seek resolution
from the Court. Responses any such request for resolution shall filed with the Court within days the request. Any agreed upon Comprehensive Plan shall filed with the Court and, deemed appropriate the Court, ordered. The Kentucky State Board Elections will
proceed with the actions described subparagraph 34(c) below regarding canvass mailing
the stated timeframes regardless whether Comprehensive Plan place.
34.
The Comprehensive Plan shall include detailed description all procedures followed the Kentucky State Board Elections for maintaining accurate statewide
voter registration list, including procedures identify registrants who have become ineligible
due change residence. The descriptions shall include step-by-step account all actions undertaken and the expected timeframe and frequency such actions. minimum, the
Comprehensive Plan shall include the following:
(a)
Procedures. Procedures for general program list maintenance for
registrants who may have become ineligible due change residence that has
Case: 3:17-cv-00094-GFVT-EBA Doc Filed: 07/03/18 Page: Page ID#:
291
not been reported election officials, including procedures that can
implemented 2018 (bearing the mind the 90-day quiet period before federal
elections), procedures going forward subsequent years, and procedures for
reaching back identify registrants who may have become ineligible due
unreported change residence since 2009.
(b)
Sources Information Used Regularly. Procedures identify
registered voters who may have moved without reporting such move election
officials, including procedures for obtaining, processing, and reliably matching
information the statewide voter registration database:
data from the U.S. Postal Service National Change Address (NCOA)
program;
ii.
mail sent the Kentucky State Board Elections local election
officials returned undeliverable with without forwarding address;
iii.
lists from the Kentucky Transportation Cabinet former Kentucky
residents who have surrendered Kentucky driver licenses other state
issued identification motor vehicle authorities another state;
iv.
data from other states indicating that Kentucky registrant may have
moved that state; and
reliable evidence address changes from the Electronic Registration
Information Center
For each source information, the Plan shall include the expected date which
the data will first obtained and the frequency with which such data will
obtained and used the future, including plan obtain and use change-of-
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292
address information from either NCOA data the Electronic Registration
Information Center least once per year.
(c)
Canvass Mailing. Procedures for sending nonforwardable canvass
mailing identify registrants through mail returned undeliverable who may
have unreported moves since 2009, excluding any already identified through the
Kentucky State Board Elections initial use the information listed
subparagraph (b), including the expected date(s) between May and August
2018, which the canvass mailing will sent. Where such nonforwardable
canvass mailing returned undeliverable with without forwarding address,
this would include procedures for moving ahead during the time period between
May and August 2018 set forth subparagraphs (d)(i), d(ii), and (e)
below.
(d)
Registration List Updates. Procedures for using the data that
successfully matched the statewide voter registration list under subparagraphs
(b) and (c) update the registration list, including:
procedures followed where data obtained from the sources
information outlined subparagraphs (b) and (c) above indicate that
registrants may have unreported move inside the registrar jurisdiction,
which shall include updating the registrants records compliance with
sections 8(c)(1)(B)(i) and 8(f) the NVRA and sending appropriate
notices such updates, described section 8(c)(1)(B)(i);
ii.
procedures followed where data obtained from the sources
information outlined subparagraphs (b) and (c) above indicates that
Case: 3:17-cv-00094-GFVT-EBA Doc Filed: 07/03/18 Page: Page ID#:
293
registrants may have unreported move outside the registrar
jurisdiction, which shall include sending the specific forwardable notice
described section 8(d)(2) the NVRA confirm the registrants
changes residence, waiting for two federal general elections for the
registrant respond vote appear vote, and failing that, remove
them from the statewide voter registration database according the
procedures set forth section 8(d) the NVRA; and
iii.
the form and content all notices sent registrants part the
list maintenance activities described the Comprehensive Plan.
(e)
Timing Notices and Updates. The expected date(s) between May
and August 2018 when notices will sent under sections 8(c)(1)(B)(i)
8(d)(2) the NVRA and updates carried out under section 8(f) the NVRA, and
the expected timeframes future years (not within days upcoming
primary general election for federal office) when such notices will sent and
updates carried out.
(f)
List Registrants Whom Notices Have Been Sent. Procedures for
maintaining list that includes all registrants identified through subparagraphs (b) (c) voters who may have become ineligible due change residence
outside the jurisdiction, and are mailed notices conforming section 8(d)(2)
the NVRA, including procedures ensure that (1) any registrant the list who
appears vote and otherwise eligible permitted cast ballot, (2) any
registrant the list can access and review information about his her
registration record and status through Kentucky web-based voter portal, and (3)
Case: 3:17-cv-00094-GFVT-EBA Doc Filed: 07/03/18 Page: Page ID#:
294
any registrant who responds the notice and affirms that they remain the
jurisdiction votes appears vote confirms updates his her
registration address updated the statewide database and returned active
status.
(g)
Removals. Procedures for removing from the statewide voter registration
list any registrant who mailed notice conforming section 8(d)(2) the
NVRA who does not respond the notice and who does not vote appear
vote otherwise have contact with election officials through the day after the
second federal general election following the date which the registrant was
mailed the section 8(d) notice, including: commitment remove the registration any registrant who meets the
conditions prescribed KRS 116.112(4), and
ii.
the expected timeframe when such removals will carried out (not
within days upcoming primary general election for federal
office).
(h)
Database Management. description databases used list
maintenance activities and plan consult with relevant database managers,
assess the quality data used list maintenance activities, and develop
sound and reliable matching criteria used list maintenance activities (to
ensure that the persons identified having possible move are properly matched with the same persons registered the statewide voter registration database).
(i)
Record-Keeping. Procedures for maintaining and making available for
inspection and copying the records concerning implementation the general
Case: 3:17-cv-00094-GFVT-EBA Doc Filed: 07/03/18 Page: Page ID#:
295
program activities outlined this decree, accord with section 8(i) the NVRA
and KRS 116.112(8).
(j)
Local Election Officials. detailed description any role that local
election officials may play list maintenance activities.
(k)
Public Outreach. Practices followed educate voters regarding the
importance confirming their registration status, including efforts made
before the close registration for each federal general election that follows the
removal registrants the list described subparagraph (f).
Reporting
35.
(a)
Within days the date this Agreed Order, the Kentucky State Board Elections will make publicly available its website, any written procedures
relevant list maintenance, including memos, manuals, training materials,
informal guidance, administrative regulations, etc., that exist the date this
Agreed Order, and will make publicly available its website any such
documents subsequently released revised the time such release
revision. These documents shall include any guidance county clerks regarding
implementation registration updates based change-of-address data. the
time the information made public, the State Board will provide copy link
counsel for Judicial Watch and the United States.
(b)
The Kentucky State Board Elections will make the results its efforts information collection and list maintenance outlined subparagraphs 34(b)
(g) above publicly available its website September 30, 2018, and will
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296
update such publicly available information least once per year September each year. the time the information made public, the State Board will
provide copy link counsel for Judicial Watch and the United States.
(c)
The publicly available information described subparagraph (b) above
and provided counsel for Judicial Watch and the United States will include the
following:
Number registrants identified who may have moved, source
information listed subparagraph 34(b) revealing the possible move;
ii.
Number registration records updated;
iii.
Number registrants whom notices conforming section 8(c)(1)(B)(i) the NVRA were sent;
iv.
Number notices conforming section 8(c)(1)(B)(i) that were returned undeliverable;
Number notices conforming section 8(c)(1)(B)(i) that were returned the registrant confirming correcting registration information;
vi.
Number registrants whom notices conforming section 8(d)(2)
the NVRA were sent;
vii.
Number notices conforming section 8(d)(2) returned the registrant
confirming correcting registration information;
viii.
Number notices conforming section 8(d)(2) returned
undeliverable;
ix.
Number notices conforming section 8(d)(2) which response
was received;
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297
Total number removals from the statewide voter registration list, with
breakdown reason for removal, defined the U.S. Election
Assistance Commission 2016 Election Administration and Voting
Survey;
xi.
Number removals from the statewide voter registration list due
move out jurisdiction, defined the U.S. Election Assistance
Commission 2016 Election Administration and Voting Survey, with
breakdown the source information relied on;
xii.
Number active registered voters the date the report; and
xiii.
Number registrants the list described subparagraph 34(f) the
date the report.
36.
All data reported under the above requirements shall include any list maintenance
activity conducted local election officials.
37.
The Kentucky State Board Elections will report the U.S. Election Assistance
Commission the voter registration data required the Commission biennial Election
Administration and Voting Survey, during the term this Agreed Order.
Enforcement and Term
38.
The parties this Agreed Order must employ best efforts defend this Agreed
Order against any legal challenge non-parties this agreement.
39.
The parties will work cooperatively the Kentucky State Board Elections
seeks ensure compliance with the terms this Agreed Order and the NVRA.
40.
This Agreed Order shall take effect once has been approved the Court and
entered upon the docket the effective date
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298
41.
This Agreed Order shall remain effect through October 31, 2023, which date
the agreement will terminate automatically unless the parties mutually agree extend the
Court determines that the Defendants have not achieved substantial compliance with its terms.
42.
Until the termination this Agreed Order, the Court shall retain jurisdiction over
this action enter such further relief may necessary for the effectuation the terms this
Agreed Order.
43.
Each party shall bear its own costs and fees.
This the day July, 2018.