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Judicial Watch • OH Randolph v Husted District Court Amicus 00303

OH Randolph v Husted District Court Amicus 00303

OH Randolph v Husted District Court Amicus 00303

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Date Created:June 17, 2016

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Case: 2:16-cv-00303-GCS-EPD Doc Filed: 06/17/16 Page: PAGEID 22666 THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OHIO
EASTERN DIVISION
____________________________________
OHIO PHILLIP RANDOLPH
INSTITUTE., al.,
Plaintiffs,
Case No. 2:16-cv-00303
JUDGE GEORGE SMITH
JON HUSTED, OHIO SECRETARY
Magistrate Judge Elizabeth Preston Deavers STATE,
Defendant.
____________________________________)
UNOPPOSED MOTION FOR LEAVE FILE AMICUS CURIAE BRIEF
SUPPORT DEFENDANT AND CORPORATE DISCLOSURE STATEMENT
Judicial Watch, Inc., and through undersigned counsel, respectfully move for leave
file the attached amicus curiae brief support Defendant Jon Husted. Counsel for Judicial
Watch contacted counsel for Plaintiffs and Defendant seeking their consent the instant motion,
and both have given their consent. support this motion, Judicial Watch proposed amicus
brief attached hereto Exhibit further support this motion, proposed amicus states
follows:
Judicial Watch, Inc. Judicial Watch non-partisan, public interest organization
headquartered Washington, DC. Founded 1994, Judicial Watch seeks promote
accountability, transparency and integrity government, and fidelity the rule law.
furtherance these goals, Judicial Watch regularly files amicus curiae briefs and prosecutes
lawsuits matters believes are public importance. Judicial Watch has appeared amicus
curiae multiple federal courts numerous occasions.
Case: 2:16-cv-00303-GCS-EPD Doc Filed: 06/17/16 Page: PAGEID 22667
Proposed amicus Judicial Watch has both interest and unique knowledge the
issues stake this litigation, and therefore believes its submission will aid this Court. Judicial
Watch interest and knowledge comes part from its prior NVRA litigation against Ohio.
Specifically, Judicial Watch filed federal lawsuit under Section the National Voter
Registration Act NVRA U.S.C. 20507, 2012 against Ohio Secretary State Jon
Husted.1 that complaint, Judicial Watch alleged that Ohio had been failing make
reasonable effort maintain the accuracy and currency its voter rolls violation the
NVRA. 2012 Compl., Judicial Watch explained, the most recent data available
2012 showed that three Ohio counties had more registered voters than eligible voters living
there, and additional Ohio counties had almost many registered voters eligible votingage adults. 2012 Compl., 9-11. Although Ohio disagreed, Plaintiff believed that this
evidence demonstrated Ohio was violation its NVRA obligation maintain accurate voter
rolls. 2012 Compl., 12, 39.
Judicial Watch brought the 2012 lawsuit against Ohio its associational capacity
behalf its members registered vote Ohio. 2012 Compl., 25. Prior filing the
lawsuit, Judicial Watch solicited the views its Ohio members, over 100 whom specifically
asked Judicial Watch sue Ohio over its list maintenance practices. 2012 Compl., 22-25.
Judicial Watch members were injured due Ohio alleged failure maintain accurate voter
rolls. Specifically, Judicial Watch alleged Ohio violations undermined Judicial Watch
members confidence the legitimacy Ohio elections, causing them doubt whether their votes
Complaint, Judicial Watch Husted, Case No. 12-792, S.D. Ohio (filed Aug. 30, 2012), available https://www.
scribd.com/doc/104449069/Complaint-Ohio-NVRA (hereinafter, 2012 Compl.
Case: 2:16-cv-00303-GCS-EPD Doc Filed: 06/17/16 Page: PAGEID 22668
would cancelled out votes cast the name outdated registrations, thereby discouraging
them from voting begin with. 2012 Compl., 28-29.
Judicial Watch litigated its case against Ohio for over sixteen months. During this time,
Judicial Watch propounded multiple interrogatories and requests for production against Ohio.
Judicial Watch also took depositions multiple Ohio state and county election officials, and
retained former Georgia Secretary State prepare expert witness report. Judicial Watch
litigators spent over 400 hours trying the case, amounting unrecovered legal fees over
$180,000. addition, Judicial Watch spent over $50,000 out-of-pocket litigation expenses,
including expert fees, local counsel fees, court costs, deposition costs, and travel costs. January 2014 the parties settled the lawsuit, agreeing terms for Ohio perform
certain NVRA Section list maintenance practices through November 2018.2 key
provision this Settlement Agreement was Ohio agreement continue perform annual
list maintenance Supplemental Mailing voters who had contact with Ohio election
offices two years.3 The Settlement Agreement required Ohio send the Supplemental
Mailing every year, whereas Ohio had previously been sending the mailing every two years. The
Supplemental Mailing portion the Settlement Agreement was important the parties that
they even subsequently negotiated amendment solely give Ohio greater flexibility over
which month the year initiate the Supplemental Mailing.
Judicial Watch never would have entered the Settlement Agreement with Ohio and
dismissed its lawsuit believed the Supplemental Mailing was unlawful. Plaintiffs the
present case claim that the Supplemental Mailing violates the NVRA. See Doc.
January 10, 2014 Settlement Agreement Settlement Agreement available https://www.judicialwatch.org/
wp-content/uploads/2014/01/01-14-Ohio-Voter-Rolls-Settlement.pdf.
Settlement Agreement, Section 2.i.
Case: 2:16-cv-00303-GCS-EPD Doc Filed: 06/17/16 Page: PAGEID 22669
Plaintiffs prevail their claim against Ohio this case, one the key provisions Judicial
Watch Settlement Agreement could voided. This would undermine Judicial Watch efforts protect the integrity elections for its Ohio members, rendering its sixteen months and
$230,000 litigation fees and costs behalf its members significantly wasted effort.
Judicial Watch therefore has legally protected interest the subject matter this litigation,
and genuine organizational interest protecting its members voting rights and ensuring its
past efforts were not vain.4
Even beyond protecting its settlement, Judicial Watch concerned that the relief
requested Plaintiffs this case would disenfranchise Ohio voters, including Judicial Watch
members. Ohio voter rolls are not maintained current and accurate condition consistent
with the NVRA, Ohio citizens could have their votes diluted cancelled out unlawful ballots
cast the names outdated duplicate registrations. the Supreme Court has explained,
public confidence the integrity the electoral process important interest because
encourages citizen participation the democratic process. Crawford al. Marion County
Election Board, 553 181, 197 (2008). Conversely, lack perceived integrity undermines
citizens confidence the legitimacy their government and discourages citizen participation elections. Id. Proposed amicus therefore believes Plaintiffs requested relief will undermine
citizen confidence the integrity elections among citizens Ohio, potentially causing injury.
See Judicial Watch King, 993 Supp. 919, 925 (S.D. Ind. 2013) 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
Judicial Watch considered moving intervene this case given its legally protected interest, but ultimately
decided not even though had sufficient grounds for mandatory intervention. United States City
Detroit, 712 F.3d 925, 946 (6th Cir. 2013).
Case: 2:16-cv-00303-GCS-EPD Doc Filed: 06/17/16 Page: PAGEID 22670
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. court decision permit amicus curiae participate pending case solely
within the broad discretion the district court. Tafas Dudas, al., 511 F.Supp.2d 652 (E.D. 2007) (overruled other grounds); citing Waste Mgmt., Inc. City York, 162 F.2R.D.34, (M.D. Pa. 1995); see e.g. Hoptowit Ray, 682 F.2d 1237, 1260 (9th Cir. 1982). While there rule governing the appearance amici district court, the courts have recognized they
have broad discretion whether permit non-party participate amicus curiae.
explained then-Judge Alito, [e]ven when party well represented, amicus may provide
important assistance the court. Neonatology Assocs., P.A. Commissioner Internal
Revenue, 293 F.3d 128, 132 (3rd Cir. 2002). Indeed, the federal courts regularly permit parties
with various interests appear amici, reasoning that restrictive policy with respect
granting leave file may create least the perception viewpoint discrimination.
Neonatology Assocs., P.A., 293 F.3d 133. See also United States Alkaabi, 223 Supp. 2d.
583, 592 (D.N.J. 2002).
For the foregoing reasons, Judicial Watch respectfully requests this Court grant leave
allow its appearance and accept its amicus curiae brief.
CORPORATE AFFILIATION AND FINANCIAL INTEREST
DISCLOSURE STATEMENT
Pursuant Fed. Civ. 7.1, Local Rule 7.1, and 6th Cir. 26.1, Judicial Watch not subsidiary affiliate publicly owned corporation. Judicial Watch corporation
organized under Section 501(c)(3) the Internal Revenue Code, and publicly held company
has 10% greater ownership interest Judicial Watch.
Case: 2:16-cv-00303-GCS-EPD Doc Filed: 06/17/16 Page: PAGEID 22671
Dated: June 17, 2016
Respectfully submitted, David Langdon
David Langdon (OH Bar No. 0067046)
Trial Attorney
LANGDON LAW, LLC
8913 Cincinnati-Dayton Rd.
West Chester, Ohio 45069
(513) 577-7380
(513) 577-7383 fax
dlangdon@langdonlaw.com Chris Fedeli
Robert Popper
Chris Fedeli
JUDICIAL WATCH, INC.
425 Third Street,
Washington, 20024
(202) 646-5172
rpopper@judicialwatch.org
cfedeli@judicialwatch.org
Case: 2:16-cv-00303-GCS-EPD Doc Filed: 06/17/16 Page: PAGEID 22672
CERTIFICATE SERVICE hereby certify that this 17th day June, 2016, 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. David Langdon
David Langdon
Case: 2:16-cv-00303-GCS-EPD Doc 54-1 Filed: 06/17/16 Page: PAGEID 22673 THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OHIO
EASTERN DIVISION
____________________________________
OHIO PHILLIP RANDOLPH
INSTITUTE., al.,
Plaintiffs,
Case No. 2:16-cv-00303
JUDGE GEORGE SMITH
JON HUSTED, OHIO SECRETARY
Magistrate Judge Elizabeth Preston Deavers STATE,
Defendant.
____________________________________)
BRIEF AMICUS CURIAE JUDICIAL WATCH, INC. SUPPORT
DEFENDANT JON HUSTED, OHIO SECRETARY STATE
Judicial Watch, Inc. files this amicus curiae brief support Defendant Jon Husted,
Ohio Secretary State. Plaintiffs claim that Ohio voter list maintenance practices violate the
National Voter Registration Act 1993, U.S.C.A. 20501, seq. NVRA Specifically,
the plaintiffs complain that Ohio Supplemental Process which confirmation notices are
mailed persons who have not engaged any voter activity for two years, and those voters are
asked confirm their registration status illegal. Plaintiffs assertions that Ohio
violation the NVRA mischaracterize the statute include non-existent requirements, and they
ask this Court the same. The plaintiffs may believe that the NVRA should contain those
requirements, but does not. They are essentially asking the Court force Ohio comply with
the statute they want the NVRA be, not the statute that is. This Court not permitted
read requirements and language into the NVRA that Congress declined include. The statute
clear, and there reason for the Court look beyond its plain text determine its meaning.
Case: 2:16-cv-00303-GCS-EPD Doc 54-1 Filed: 06/17/16 Page: PAGEID 22674 successful, Plaintiffs claims would invalidate part Ohio system for maintaining
accurate voter registration lists, and force Ohio violate the terms its settlement agreement
with Judicial Watch. Judicial Watch files this amicus brief express support for Secretary
State Husted positions this action, and argue specifically that Ohio Supplemental
Process legal and complies with the plain language the NVRA.1 The Court should deny
plaintiffs requests for declaratory and injunctive relief.
Interest Amicus Curiae Judicial Watch
Judicial Watch, Inc. Judicial Watch non-partisan, public interest organization that
seeks promote transparency, integrity, and accountability government and fidelity the
rule law. One way that Judicial Watch accomplishes its mission bringing lawsuits and
filing amicus briefs ensure that states comply with federal election law. set forth the
Motion for Leave File Amicus Curiae Brief, Judicial Watch has particular interest the
issues stake here because filed federal lawsuit under Section the NVRA 2012
against Ohio Secretary State Jon Husted, which alleged that Ohio had failed make
reasonable effort maintain the accuracy and currency its voter rolls violation the
NVRA. See Judicial Watch Husted, Civil Action No. 12-792 (S.D. Ohio 2012) (Complaint
attached hereto Exhibit A). The parties settled the lawsuit, and agreed that Ohio would
perform certain NVRA Section list maintenance practices through November 2018. See
Settlement Agreement and Amendment (attached hereto Exhibit B). key provision the
Settlement Agreement that Ohio will continue perform annual list maintenance
Supplemental Mailing voters who have had contact with Ohio election offices for two
Ohio also uses additional procedure maintain accurate rolls, which cross-references the United States Postal
Service national change address database for voters who may have changed residence (the NCOA process).
The details this process are set forth the briefs submitted the parties. Plaintiffs not challenge this aspect Ohio list maintenance system, and therefore there need for Judicial Watch address it.
Case: 2:16-cv-00303-GCS-EPD Doc 54-1 Filed: 06/17/16 Page: PAGEID 22675
years. See Exh. Section 2.i. Thus, Plaintiffs prevail their claim against Ohio this
case, this key provision Judicial Watch Settlement Agreement could voided.
Argument
The NVRA requires all states conduct program remove from their registration lists
the names voters who become ineligible due death change residence. U.S.C.
20507(a)(4). The issue Plaintiffs have put before this Court is: Under the NVRA, may Ohio
boards elections send confirmation notice, forwardable mail, the last known address person who has not participated any voter activity for two years, and ask the person
confirm, either online pre-paid postage, that she should still listed the voter
rolls? Under Ohio list maintenance procedures, only when that person both (1) fails
respond the confirmation notice, and (2) subsequently fails vote the following two
general federal elections that she removed from the rolls pursuant Section the
NVRA. See U.S.C. 20507(d). total, this process takes six years. Judicial Watch submits
that such process lawful under the plain language the NVRA.
Despite the plaintiffs assertions, Ohio list maintenance process complies with the plain
language the NVRA. Nothing the statute prohibits Ohio from maintaining the accuracy
its voter rolls the manner described above. the contrary, Ohio process based the
mandate the NVRA that all states undertake efforts remove ineligible voters from their
registration lists. The NVRA explicitly provides that one way maintaining accurate rolls
remove voters who fail respond confirmation notice and not vote two consecutive
federal general elections. U.S.C. 20507(d). That exactly what the Ohio process does.
Plaintiffs arguments that Ohio process violates the NVRA are not based the text
the statute, but instead are rooted the plaintiffs ideas about what the NVRA should require.
Case: 2:16-cv-00303-GCS-EPD Doc 54-1 Filed: 06/17/16 Page: PAGEID 22676
They ask this Court determine judicially that the NVRA contains obligations that are found
nowhere text the statute. This Court task construe what Congress has enacted, not
what the plaintiffs any party believe the statute should say. See Duncan Walker, 533
U.S. 167, 172 (2001) Our task construe what Congress has enacted. begin, always,
with the language the statute, citing Williams Taylor, 529 U.S. 420, 431 (2000); Public
Employees Retirement System Ohio Betts, 492 U.S. 158, 175 (1989); Watt Energy Action
Ed. Foundation, 454 U.S. 151, 162 (1981). This Court should decline engage such
legislation from the bench. set forth below, Ohio Supplemental Process complies with the
plain language the NVRA, and that should end this inquiry.
Federal Law Requires That States Maintain Accurate Voter Rolls Protect the
Integrity the Electoral Process.
Ohio complying with the NVRA mandate that the states conduct general program
that makes reasonable effort remove the names ineligible voters from the official lists. U.S.C. 20507(a)(4). All states are required conduct such program remove the names registered voters who have become ineligible reason death change residence.
20507(a)(4)(A)-(B). The NVRA, well the Help America Vote Act 2002, U.S.C.
21083 seq., mandate these programs protect the integrity the electoral process
ensuring the maintenance accurate and current voter registration roll. U.S.C.
20507(b); see also U.S.C. 21083(a)(4) (providing that state election system shall,
minimum, include provisions ensure that voter registration records are accurate and updated
regularly).
The purpose these provisions prevent voter fraud. See Rep. 103-6 17-18,
103rd Cong., 1st Sess. The maintenance accurate and up-to-date voter registration lists the
hallmark national system seeking prevent voter fraud 147 Cong. Rec. H9290 (daily ed.
Case: 2:16-cv-00303-GCS-EPD Doc 54-1 Filed: 06/17/16 Page: PAGEID 22677
Dec. 12, 2001) (statement Rep. Terry) (stating that HAVA reforms would help states clean voter rolls, and thus clean-up elections There doubt that voter fraud occurs. See
REPORT THE COMMISSION FEDERAL ELECTION REFORM, Jimmy Carter and James
Baker, III (Co-Chairs), Building Confidence U.S. Elections, American University Center
for Democracy and Election Management, (Sept. 2005) While the Commission divided the magnitude voter fraud there doubt that occurs ).2 the Carter-Baker
Report found, [i]n close disputed elections, and there are many, small amount fraud
could make the margin difference. Id. Indeed, just recently the state Ohio, numerous
elections have been decided one vote.3 Thus, even small amount voter fraud for
example, just one ballot cast ineligible voter could change the outcome election.
Such risk unacceptable democracy, which upheld and maintained elections and the
voters who participate them. Ohio must comply with the list maintenance procedures the
NVRA because the statute compels it, but also because the integrity Ohio elections and
therefore, its government could compromised fails ensure that only eligible voters are
casting ballots.
II.
Ohio Supplemental Process Complies with the Text the NVRA.
Ohio Supplemental Process conducted pursuant subsections (b) and (d) Section the NVRA. Subsection (b) provides relevant part:
(b) Confirmation voter registration
The Carter-Baker Report available at: http://www.eac.gov/assets/1/AssetManager/Exhibit%20M.PDF.
Secretary State Husted has released statistics showing that, 2013, local races and eight local ballot issues Ohio were decided either one vote, coin toss following electoral tie. See Press Release, Secretary State Husted Reminds Ohioans: One Vote Matters, Ohio Secretary State Office (Jan. 13, 2013), available
http://www.sos.state.oh.us/sos/mediaCenter/2014/2014-01-13.aspx.
Case: 2:16-cv-00303-GCS-EPD Doc 54-1 Filed: 06/17/16 Page: PAGEID 22678
Any State program activity protect the integrity the
electoral process ensuring the maintenance accurate and
current voter registration roll for elections for Federal office
(2) shall not result the removal the name any person from
the official list voters registered vote election for
Federal office reason the persons failure vote, except that
nothing this paragraph may construed prohibit State
from using the procedures described subsections (c) and (d)
remove individual from the official list eligible voters the
individual
(A) has not either notified the applicable registrar (in person
writing) responded during the period described subparagraph
(B) the notice sent the applicable registrar; and then
(B) has not voted appeared vote more consecutive
general elections for Federal office. U.S.C. 20507(b)(2) (emphasis added). Subsection (d), referenced subsection (b)(2)
exception that provision, provides follows:
(d) Removal names from voting rolls
(1) State shall not remove the name registrant from the
official list eligible voters elections for Federal office the
ground that the registrant has changed residence unless the
registrant
(B)(i) has failed respond notice described paragraph (2);
and (ii) has not voted appeared vote 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. U.S.C. 20507(d).
The plaintiffs claim that Ohio Supplemental Process violates the NVRA, but they are
incorrect. Specifically, they argue that because Ohio makes the failure vote trigger for the
confirmation notice, the process results the removal voters from the list registered
voters for their failure vote violation subsection (b). Pls. Mot. for Summ. (ECF
No. 39); U.S.C. 20507(b)(2). The plaintiffs argument fails because the NVRA specifically
Case: 2:16-cv-00303-GCS-EPD Doc 54-1 Filed: 06/17/16 Page: PAGEID 22679
excepts the process set forth subsection (d), which what Ohio doing, from the language
subsection (b) that prohibits the removal the name any person from the official list
voters reason the person failure vote. See 20507(b)(2) nothing this
paragraph may construed prohibit State from using the procedures described
subsection[] (d) Ohio process falls squarely within the plain language subsection (d),
and complies with the requirements that provision. Because Ohio process permissible
the face the statute, the plaintiffs claims should dismissed. Ohio List Maintenance Program Does Not Remove Voters from the Registration
List Based Their Failure Vote. Secretary State Husted has explained, under Ohio Supplemental Process, the
county boards send confirmation notice persons who are the state voter rolls but have
demonstrated voter inactivity for two years. The confirmation notices are sent forwardable
mail and include postage pre-paid response. Those voters who not respond the
confirmation notice are placed inactive list, but their ability vote does not change that
time. those voters who did not respond the confirmation notice then fail vote the next
two general federal elections, one which necessarily presidential election, those voters are
dropped from the rolls. See Def. Initial Merits Brief pp.7-8 (ECF No. 38).
There dispute that the NVRA precludes the removal voters from the rolls the
sole basis their failure vote. But Ohio Supplemental Process does not remove person
name from its lists because the person failed vote. set forth above, registrants are removed
because they failed respond the confirmation notice, coupled with the fact that they did not
participate the two federal general elections following the confirmation notice. other
words, registrants are queried the basis their failure vote, but not removed that basis.
Case: 2:16-cv-00303-GCS-EPD Doc 54-1 Filed: 06/17/16 Page: PAGEID 22680
This does not amount removing voters from the rolls for failure vote. This process set
forth specifically the statute subsection (d), and does not violate subsection (b)(2). The NVRA Permits States Send Confirmation Notices Registrants Who Have
Not Voted Recent Elections.
Nothing the NVRA prohibits state from sending confirmation notice registrants
who have not participated voting activity for some period time. Ohio program does not
target voters for removal any impermissible basis, the plaintiffs arguments imply. Rather, contacts voters who have not participated elections the last two years and simply asks
them confirm their registration status. The NVRA does not place any preconditions the
mailing confirmation notice, and does not prohibit sending such notice registrants who
have failed engage voter activity recent years.
Moreover, the confirmation notice sent forwardable mail; therefore, even voter
has moved, she should still receive and able act upon it. Even the voters not
respond the confirmation notice, they remain eligible vote without restriction for another
four years. They are not turned away from the polls asked cast provisional ballot. The
confirmation notice only affects the recipient ability vote that person fails respond and
fails vote the next two federal general elections, one which presidential election.
Despite the plaintiffs arguments the contrary, nothing the NVRA prohibits Ohio complying
with its obligations under the NVRA through this process. The NVRA Does Not Require Independent Reliable Evidence That Voter Has
Changed Residency Before State May Send That Voter Confirmation Notice. The
Court Should Decline Read This Non-Existent Requirement into the Statute.
Plaintiffs maintain that state may only send confirmation notice voter where the
state has independent and reliable evidence that the voter has changed his her residence.
Pls. Mot. for Summ. (ECF No. 39). They also assert that Ohio program violates the
Case: 2:16-cv-00303-GCS-EPD Doc 54-1 Filed: 06/17/16 Page: PAGEID 22681
text the NVRA because does not limit the use confirmation notice the sole
permissible purpose confirming already independently identified change residence. (Id. 29). However, nowhere does the NVRA actually require that state must have independent reliable evidence that voter has changed residence before may mail confirmation
notice that voter. The words reliable and independently identified not even appear
the text the statute, with respect voter change residence otherwise. Likewise, the
NVRA does not state that the confirmation notice has the sole purpose confirming
independently identified change address.
The plaintiffs may believe that the NVRA should contain these requirements, but does
not. The United States Supreme Court has repeatedly emphasized that analysis statute
begins with the text that statute. United States Gonzales, 520 U.S. (1997) Our
analysis begins, always, with the statutory text. United States Ron Pair Enterprises, Inc.,
489 U.S. 235, 241 (1989) The task resolving the dispute over the meaning statute]
begins where all such inquiries must begin: with the language the statute itself, citing
Landreth Timber Co. Landreth, 471 U.S. 681, 685 (1985)). this case also where the
inquiry should end, for where, here, the statute language plain, the sole function the
courts enforce according its terms. Ron Pair Enterprises, 489 U.S. 241, quoting
Caminetti United States, 242 U.S. 470, 485 (1917) (emphasis added). the intent Congress clear and unambiguously expressed the statutory language issue, that the end the
Court analysis. this case, Ohio Supplemental Process falls within the plain language the
statute; there need stretch its words draw inferences from the text determine
whether the process legal. The statute clear, and there reason for the Court look
beyond the plain text determine its meaning.
Case: 2:16-cv-00303-GCS-EPD Doc 54-1 Filed: 06/17/16 Page: PAGEID 22682 The Court Should Not Rely DOJ Current Interpretation the NVRA Set
Forth Litigation Georgia.
Plaintiffs cite the Statement Interest filed the United States Department Justice,
Civil Rights Division, Common Cause Kemp, Civil Action No. 1:16-cv-452-TCB (N.D. Ga.
2016), action that challenges Georgia list maintenance procedures. its Statement
Interest, the DOJ falls into the same misreading and mischaracterization the NVRA the
Plaintiffs here. DOJ asserts that state program remove ineligible voters must follow
specific NVRA procedures, one which DOJ claims is: First, the state must gather reliable
evidence that the voter has become ineligible based change residence. DOJ Stmt.
Interest Civil Action No. 1:16-cv-452-TCB, ECF No. (N.D. Ga. 2016). Notably absent
from this statement any citation the text the NVRA, any other legal authority. Again, such requirement found the text the NVRA. Later its Statement, DOJ attempts justify this position, but ultimately just makes its own assumptions about Congress intent.
DOJ justification follows:
Congress explicit endorsement Section 8(c) the NCOA
process safe harbor for identifying changes residence,
paired with the ban purging based non-voting Section
8(b), signals Congress intent ensure that any method states use trigger the Section 8(d) notice and cancellation process must
based upon objective and reliable information potential
ineligibility due change residence that independent the
registrant voting history.
Id. 12.
This convoluted and overly-complicated assertion basically says: Neither the plain text the statute nor the congressional record directly supports this position, but one makes
several inferences and draws conclusions based our view the statute, these requirements
Case: 2:16-cv-00303-GCS-EPD Doc 54-1 Filed: 06/17/16 Page: PAGEID 22683
can presumed exist. contains one qualifier after another must objective and
reliable independent none which are found the text the NVRA.
All these requirements, DOJ would make them, are manufactured based its
interpretation what the statute signals was Congress intent. There need for the
Court engage such strained exercise statutory interpretation. The only authority DOJ
cites support this statement dicta Third Circuit case decided 2001 (prior the
passage HAVA), which the plaintiff did not even state claim under the NVRA.4 Again,
nothing the NVRA requires that state have reliable evidence that voter residence has
changed prior sending confirmation notice; nor does the NVRA state that there must
objective information that independent the registrant voting history. The
requirements that DOJ seeks impose the State Georgia and the Plaintiffs now hope
impose Ohio not exist the text the statute.
Moreover, the DOJ position the Georgia case inconsistent with its positions
other NVRA litigation. For example, 2007, DOJ settled lawsuit had filed against the City Philadelphia under the NVRA well other statutes. See United States City
Philadelphia, al., Civil Action No. 06-4592 (E.D. Penn. 2007). the settlement agreement
resolving that case, the DOJ required Philadelphia send forwardable confirmation notice
any registered elector who has not voted nor appeared vote during any election, contacted
the Board any manner and that place voters who not respond the confirmation
notice inactive status. See DOJ Settlement Agreement with Philadelphia 10-11 16,
The DOJ cites Welker Clarke, 239 F.3d 596, 599 (3rd Cir. 2001). that case, the plaintiff alleged claims under
the Voting Rights Act, U.S.C. 1983, and the Fourteenth Amendment, but not the NVRA. The Court dicta
which DOJ relies found the Court discussion the legislative history Pennsylvania Voter Registration
Act (the PVRA), which, the Court explained, was passed response the NVRA. 239 F.3d 598-99. The Third
Circuit description the NVRA Welker was arguably not even relevant the decision that case, much less
this one. Welker carries precedential weight here, and has bearing this action.
Case: 2:16-cv-00303-GCS-EPD Doc 54-1 Filed: 06/17/16 Page: PAGEID 22684
attached Exhibit Defendant Secretary State Jon Husted Second Merits Brief (ECF
No. 49-2). those voters failed vote the subsequent two federal general elections,
Philadelphia was remove them from the registration list. Id. other words, DOJ then
required Philadelphia what now says Georgia may not do. Indeed, the DOJ trigger
for confirmation notice Philadelphia was failure vote any election, which stricter
standard than Ohio two-year period.
DOJ vacillating positions Section the NVRA should call into question the
weight given its Statement Interest the Georgia case, well any position may take Ohio program. See Young United Parcel Service, 135 Ct. 1338, 1352 (2015) (holding
that the Court could not rely significantly the agency determination because its position was
contrary inconsistent with previous government statements the issue).5 Likewise, this
Court should not depend upon DOJ interpretation the NVRA. Rather, the Court, well
the states, should take the only approach that will result consistent application the
NVRA requirements: apply the plain language the NVRA written. Under the plain
language the NVRA, there requirement that the state have independent reliable
evidence that the voter has changed residence prior sending that voter confirmation notice.
This Court should decline read such requirement into the NVRA where does not exist, and
should not invalidate Ohio list maintenance program based this nonexistent obligation.
Moreover, Secretary State Husted Second Merits Brief points out, DOJ not entitled deference under
Chevron Natural Resources Defense Council 467 U.S. 837 (1984) this context. See Def. Second Merits Brief 13-14 (ECF No. 49). The United States Supreme Court has held that the amount weight given agency
statutory interpretation depends upon, amongst other things, its consistency with earlier and later
pronouncements[.] Young, 135 S.Ct. 1351-52 (discussing Skidmore Swift Co., 323 U.S. 134, 140 (1944)).
See also United States Mead Corp., 121 S.Ct. 2164, 2171-74 (2001).
Case: 2:16-cv-00303-GCS-EPD Doc 54-1 Filed: 06/17/16 Page: PAGEID 22685
III.
The Legislative History Supports Ohio Interpretation the NVRA.
The text the NVRA straightforward, and the Court need inquire further
determine whether Ohio process complies with the statute. Given the straightforward
statutory command, there reason resort legislative history. United States Gonzales,
520 U.S. (1997), citing Connecticut Nat. Bank Germain, 503 U.S. 249, 254 (1992).
However, should the Court determine that the legislative history relevant, that history supports finding that the Supplemental Process legal. Secretary State Husted briefing fully
explains, the legislative history what eventually became the NVRA shows that Congress
intended prohibit the practice, then used several states, dropping voters names from the
rolls for non-voting without sending them notice. See 138 Cong. Rec. S11689 (daily ed. May
19, 1992).
The plaintiffs argue that the legislative history demonstrates that Ohio process violates
the NVRA because the statute abolished the practice periodically canceling the
registrations inactive voters. Pls. Mot. for Summ. (ECF 39). Judicial Watch
does not dispute that cancelling voters registrations merely for failure vote not permitted
under the NVRA; such practice would illegal the face the statute. However, Ohio
not cancelling voters registrations because they failed vote recent election. Ohio
following the process set forth explicitly the NVRA remove voters legally from the rolls.
Plaintiffs may insist that Ohio program violates the NVRA because initiates the process
sending confirmation notice based voter inactivity, but that not the same thing simply
cancelling voter registration because she failed vote recent election.
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Ohio Supplemental Process Similar Programs Other States, and Those
States List Maintenance Programs Will Put Peril this Court Determines
that Ohio Process Violates the NVRA.
IV. Secretary State Husted brief points out, number other states have list
maintenance programs that are similar Ohio Supplemental Process. Should this Court grant
the relief sought the plaintiffs this action, its decision will impact those states programs.
For example:
Tennessee law requires that, where voter fails vote update his registration over period two consecutive November elections, the county must mail forwardable
confirmation notice the registrant the address registration with postage prepaid,
pre-addressed return form which the voter may verify correct the new address
information. Tenn. Code Ann. 2-2-106(c). The voter placed into inactive status,
and she fails vote the following two federal general election cycles, the voter purged from the rolls. 2-2-106(d)-(e). Georgia, every odd-numbered year, the Secretary State required identify all
electors whose names appear the list electors with whom there has been contact
during the preceding three calendar years and who were not identified changing
addresses. O.C.G.A. 21-2-234(a)(2) (2015). Confirmation notices are sent those
voters, and the voter fails return the card within days after the date the notice,
the voter transferred the inactive list. Id. the voter fails participate the
following two federal general elections, she purged from the rolls. O.C.G.A.
21-2-235 (2015).
West Virginia law provides that addition the NCOA procedure, all counties using
the NCOA information from the U.S. Postal Service shall also, once each four years
conduct the same procedure mailing confirmation notice those persons who
have not updated their voter registration records and have not voted any election
during the preceding four calendar years. W.Va. Code 3-2-25(j) (2016). The West
Virginia statute explicitly states that the purpose this additional systematic
confirmation procedure shall identify those voters who may have moved without
filing forwarding address, moved with forwarding address under another name,
those who may have died another county state, otherwise have become
ineligible. W.Va. Code 3-2-25(j) (2016). Those voters who not respond the
confirmation notice are purged they fail vote the two subsequent federal general
election cycles. See W.Va. Code 3-2-27.
Additionally, Montana, election administrators are required conduct list
maintenance procedures every other year, and one their options targeted mailing, which
Case: 2:16-cv-00303-GCS-EPD Doc 54-1 Filed: 06/17/16 Page: PAGEID 22687
may forwardable confirmation notice, voters who failed vote the preceding federal
general election. See 13-2-220(1)(c), MCA (2015). Missouri, election officials conduct
canvasses every two years, and may canvass all voters, only those voters who did not vote
the last general election. See 115.181 R.S. Mo. (2016).
Ohio efforts confirm the eligibility voters who have not engaged voter activity
for period two years are similar those undertaken other states, and there reason
determine that this not legal method maintaining accurate voter rolls. Should this Court
determine that Ohio process violates the NVRA, the list maintenance programs these other
states would called into question, and subject similar challenges.
The NVRA List Maintenance Provisions Protect Citizens Confidence Elections,
and Ohio Program Supporting That Goal. addition ensuring the voter registration lists are accurate protect against voter
fraud, the list maintenance provisions the NVRA also protect citizens confidence that
elections are conducted fairly and honestly. Citizens confidence the electoral process
independent significance. Crawford Marion County Election Bd., 553, U.S. 181, 197 (2008) public confidence the integrity the electoral process has independent significance,
because encourages citizen participation the democratic process federal district court Indiana recently explained that voters Indiana were injured the state failure comply
with the list maintenance provisions the NVRA because that failure undermin[es] their
confidence the legitimacy elections and thereby burden[s] their right vote. Judicial
Watch, Inc. King, 993 Supp. 919, 924 (S.D. Ind. 2012). The Carter-Baker Commission
also found that the perception possible fraud contributes low confidence the system.
See Carter-Baker Report 18-19.
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Ohio making laudable efforts comply with the list maintenance provisions the
NVRA time when inaccurate voter rolls are becoming national, nonpartisan issue, and
confidence our election system waning. Notwithstanding the requirements the NVRA
and HAVA, states have been inconsistent meeting their mandates, and many have routinely
failed comply with their voter list maintenance obligations. result, many state voter rolls
are poor condition. The Pew Research Center the States released astonishing report
2012 noting that [a]pproximately 2.75 million people have active registrations more than one
state. Inaccurate, Costly, and Inefficient: Evidence That America Voter Registration System
Needs Upgrade, PEW RESEARCH CENTER THE STATES, Feb. 14, 2012, 1.6 That same
report observed that million one every eight active voter registrations the United
States are longer valid are significantly inaccurate, and that [m]ore than 1.8 million
deceased individuals are listed active voters. Id. There can doubt that system
which records has serious errors raises the prospect fraud and manipulation. Jonathan
Brater, Presidential Voting Commission Can Modernize Elections: Testimony the Presidential
Commission Election Administration, THE BRENNAN CENTER, Sept. 2013.7 necessary for Ohio and other states restore the American public confidence
the basic honesty elections enforcing election integrity laws. Large segments the
American public have expressed their dismay with various aspects our electoral system.
poll from August 2013 reported that only 39% Americans believe that elections are fair.8
The Pew report available http://www.pewtrusts.org/~/media/legacy/uploadedfiles/pcs assets/2012/
pewupgradingvoterregistrationpdf.pdf
Jonathan Brater testimony available http://www.brennancenter.org/analysis/testimony-presidential-votingcommission-can-modernize-elections.
Rasmussen Reports, New Low: 39% Think U.S. Elections Are Fair (Aug. 16, 2013), available http://www.
rasmussenreports.com/public content/politics/general politics/august 2013/new low think elections
are fair.
Case: 2:16-cv-00303-GCS-EPD Doc 54-1 Filed: 06/17/16 Page: PAGEID 22689 2012, another poll reported that more than two-thirds registered voters thought voter fraud
was problem.9 2008, when poll asked respondents around the world whether they had
confidence the honesty elections, 53% Americans said that they did not.10 These
surveys reveal startling lack confidence our own electoral institutions.
Ohio should conducting regular list maintenance review and ensuring the accuracy
its voter rolls through programs like its Supplemental Process. Federal law requires it, and the
integrity our electoral system depends it. explained above, Judicial Watch engages
efforts across the country encourage states comply with the NVRA and other voting
statutes. has been Judicial Watch experience that states often not voluntarily conduct
these types list maintenance programs without prompting and, some cases, must forced through the threat litigation. These list maintenance programs cost money and
demand resources, both which are short supply many states. general, easier for
state not maintain accurate voting rolls, because updating the rolls burdensome and
expensive. However, the cost not doing could election decided fraud, loss
voters confidence the very electoral system that the lifeblood our democracy.
Ohio Supplemental Process one method through which the State complying with
its obligation under federal law maintain accurate voter registration lists. The plaintiffs have
put forth supportable basis which invalidate that process, which falls squarely within the
text the NVRA. The Court should find that Ohio Supplemental Process complies with the
NVRA.
Kevin Robillard, Poll: 36% say voter fraud major issue, Politico (Oct. 26, 2012), available http://www.
politico.com/news/stories/1012/82936.html.
Magali Rheault and Brett Pelham, Worldwide, Views Diverge About Honesty Elections (Nov. 2008),
available http://www.gallup.com/poll/111691/worldwide-views-diverge-about-honesty-elections.aspx.
Case: 2:16-cv-00303-GCS-EPD Doc 54-1 Filed: 06/17/16 Page: PAGEID 22690
Conclusion
Plaintiffs ask this Court declare Ohio Supplemental Process violation the
NVRA the grounds that Ohio has not met set manufactured requirements that not exist that statute. successful, Plaintiffs claims would invalidate part Ohio system for
maintaining accurate voter registration lists, and force Ohio violate the terms its settlement
agreement with Judicial Watch. Ohio Supplemental Process legal and complies with the
plain language the NVRA. The Court should deny plaintiffs requests for declaratory and
injunctive relief.
Dated: June 17, 2016 David Langdon
David Langdon (OH Bar No. 0067046)
Trial Attorney
LANGDON LAW, LLC
8913 Cincinnati-Dayton Rd.
West Chester, Ohio 45069
(513) 577-7380
(513) 577-7383 fax
dlangdon@langdonlaw.com
Respectfully submitted, Chris Fedeli
Robert Popper
Chris Fedeli
JUDICIAL WATCH, INC.
425 Third Street,
Washington, 20024
(202) 646-5172
rpopper@judicialwatch.org
cfedeli@judicialwatch.org
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Exh.
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FOR THE SOUTHERN DISTRICT OHIO
EASTERN DIVISION
JUDICIAL WATCH, INC., behalf certain its members; and
TRUE THE VOTE, its corporate
capacity,
Plaintiffs,
vs.
OHIO SECRETARY STATE
JON HUSTED, his official capacity,
Defendant.
Case No.: 2:12-cv-792
COMPLAINT
Plaintiffs Judicial Watch, Inc. and True the Vote, their attorneys, bring this action for
declaratory and injunctive relief and allege follows:
INTRODUCTION
Plaintiffs Judicial Watch, Inc. and True the Vote seek declaratory and injunctive
relief compel the State Ohio comply with its voter list maintenance obligations under
Section the National Voter Registration Act 1993 NVRA U.S.C. 1973gg-6.
JURISDICTION AND VENUE
This Court has jurisdiction over this matter pursuant U.S.C. 1331, the
action arises under the laws the United States, and under U.S.C. 1973gg-9(b)(2), the
action seeks injunctive and declaratory relief under the NVRA.
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Venue this Court proper under U.S.C. 1391(b), because substantial
part the events omissions giving rise the claim occurred this district.
PARTIES
Plaintiff Judicial Watch, Inc. Judicial Watch non-profit organization that
seeks promote integrity, transparency, and accountability government and fidelity the
rule law. Judicial Watch brings this action behalf its members who are registered
vote the State Ohio.
Plaintiff True the Vote True the Vote non-profit organization that seeks
restore truth, faith, and integrity local, state, and federal elections. True the Vote brings this
action its corporate capacity.
Defendant Jon Husted the Secretary State the State Ohio the
Secretary and has served this capacity since January 2011. Because the State Ohio has
designated the Secretary the chief State election official responsible for coordination its
responsibilities under the NVRA (see U.S.C. 1973gg-8, Plaintiffs Judicial Watch, Inc. and
True the Vote bring this action against the Secretary his official capacity.
FACTUAL BACKGROUND
Section the NVRA requires that [i]n the administration voter registration
for elections for Federal office, each State shall conduct general program that makes
reasonable effort remove the names ineligible voters from the official lists eligible voters reason (A) the death the registrant; (B) change the residence the registrant U.S.C. 1973gg-6(a)(4). Section the NVRA also mandates that any such voter list
maintenance programs activities shall uniform, nondiscriminatory, and compliance with
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the Voting Rights Act 1965 (42 U.S.C. 1973 seq.), among other important protections. U.S.C. 1973gg-6(b)(1).
Section the NVRA also requires that [e]ach State shall maintain for least years and shall make available for public inspection all records concerning the
implementation programs and activities conducted for the purpose ensuring the accuracy
and currency official lists eligible voters. U.S.C. 1973gg-6(i).
The most recent and reliable, publicly-available data regarding voting age
population and voting registration, county, for the State Ohio the 2010 Decennial U.S.
Census 2010 U.S. Census released the U.S. Government beginning February 2011,
and the voter registration data provided the State Ohio the U.S. Election Assistance
Commission EAC Report for the general election held November 2010, published
June 30, 2011. The 2010 U.S. Census contains data voting age population 2010,
county, for the State Ohio. The EAC report contains data the number persons the
voter registration rolls 2010, county, the State Ohio.
10.
Based examination the data the 2010 U.S. Census and the EAC
Report, the number individuals listed voter registration rolls the following three counties the State Ohio exceeds 100% the total voting age population these counties: Auglaize,
Wood, and Morrow. (And both Auglaize and Wood, the voter registration rolls exceed 105% total voting age population.) This data demonstrating the discrepancy voter registration
rolls total voting age population each these counties constitutes prima facie evidence that
the State Ohio has failed comply with its voter list maintenance obligations under Section the NVRA.
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11.
The data the 2010 U.S. Census and the EAC Report also shows that the
following thirty-one counties the State Ohio (in order highest lowest percentage) have
voter registration rolls that contain between 90% and 100% total voting age population:
Lawrence, Cuyahoga, Henry, Medina, Mahoning, Delaware, Putnam, Hancock, Fairfield,
Geauga, Van Wert, Lucas, Montgomery, Jackson, Ottawa, Stark, Hamilton, Miami, Franklin,
Gallia, Greene, Jefferson, Trumbull, Lorain, Wyandot, Athens, Harrison, Clermont, Licking,
Logan, and Erie Counties. This data further demonstrates that the State Ohio has failed
satisfy its voter list maintenance obligations under Section the NVRA.
12.
According the U.S. Census Bureau, the average rate voter
registration total voting age population during the presidential election year 2008
was 71%, yet Ohio, its counties have rate that exceeds 90%.
13.
The failure the State Ohio satisfy its voter list maintenance obligations
contributing larger, nationwide problem. According February 2012 study published
the non-partisan Pew Center for the States entitled Inaccurate, Costly, and Inefficient,
inaccurate voter registration lists are rampant across the United States. The Pew study found that
approximately million active voter registrations throughout the United States one out
every eight registrations are either longer valid are significantly inaccurate. The Pew
study also found that more than 1.8 million deceased individuals are listed active voters
nationwide, and that approximately 2.75 million people have active registrations more than
one state.
14. February 2012, Judicial Watch sent letter the Secretary notifying him
that the State Ohio was violation Section the NVRA and that, the chief State
election official the State Ohio, responsible for compliance with Section the
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NVRA. The letter explained that, according 2010 U.S. Census data and publicly available
voter registration data, the number individuals registered vote three counties the State Ohio exceeds those counties total voting age population. The letter identified each the
three counties name and informed the Secretary that lawsuit may brought against him
the State Ohio did not comply with its voter list maintenance obligations under Section
the NVRA.
15.
The letter also requested that the Secretary 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 the State Ohio
during the past two years, explaining that Section the NVRA required such records
made available.
16.
The Secretary, through his Chief Legal Counsel, responded writing Judicial
Watch letter March 2012, stating share your concerns about the accuracy our
voting lists and identifying Directive, issued April 18, 2011, instructing the county boards elections procedures for conducting programs remove ineligible voters from the voter
rolls due changes registrant residence. The Secretary letter did not identify any efforts the State Ohio ensure that the county boards election were following the procedures
described the nearly one-year old directive. Nor did identify any other programs
activities undertaken the State Ohio remove ineligible voters from the voter rolls due
changes registrant residence. copy the Directive was included with the letter.
17.
The Secretary letter also did not identify any programs and activities undertaken the State Ohio remove ineligible voters from the voter rolls due the death the
registrant, any efforts instruct county boards election procedures for removing
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deceased registrants from the voter rolls. Nor did identify any other voter list maintenance
programs activities undertaken the State Ohio.
18. the letter, the Secretary asserted that the State Ohio efforts maintain
accurate voter rolls have been hampered the restrictions and seemingly inconsistent
provisions the NVRA and noted that had written letter U.S. Attorney General Eric
Holder discuss possible solutions, but had not received response.
19.
The only other document produced the Secretary with his letter was copy
the letter had sent Attorney General Holder, dated February 10, 2012. this letter
Attorney General Holder, the Secretary admitted that the State Ohio has not fulfilled its duty
under Section the NVRA make reasonable effort remove ineligible voters from its
voter rolls. The letter from the Secretary also acknowledged that the voter rolls for two counties the State Ohio contained more registered voters than the total voting age population those
counties.
20. the date this Complaint, further response from the Secretary his
office has been received the Plaintiffs. Nor has the Secretary produced any additional
documents regarding any other voter list maintenance programs activities undertaken the
State Ohio.
21. light the Secretary letter and the lack any further response from the
Secretary, any further efforts secure compliance with Section the NVRA would futile.
PLAINTIFF JUDICIAL WATCH
22.
Judicial Watch has approximately 9,480 members the State Ohio.
membership organization, Judicial Watch represents the interests these members, least some
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the right vote elections for federal office.
23. 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. Each Judicial Watch
9,480 members the State Ohio has made least one financial contribution Judicial
Watch over the past two years and thus helped finance the activities the organization during
this time period.
24.
Judicial Watch also solicits the views its members carrying out its activities support its mission, including the views its members the State Ohio. The views
Judicial Watch members exert significant influence over how Judicial Watch chooses the
activities which engages support its mission.
25.
Over 100 members Judicial Watch who are lawfully registered vote the
State Ohio have informed Judicial Watch that they are concerned about the State Ohio
failure satisfy its voter list maintenance obligations under Section the NVRA and wish
Judicial Watch take action their behalf protect their right vote. The views these
members were substantial factor weighing favor the initiation this lawsuit.
26.
Protecting the rights members Judicial Watch who are lawfully registered
vote the State Ohio directly germane 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
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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.
27.
Members Judicial Watch who are lawfully registered vote the State
Ohio not only have the constitutional right vote elections held the State Ohio,
including elections for federal office, but they also have statutory right the safeguards and
protections set forth the NVRA, including the voter list maintenance obligations Section the NVRA.
28.
The failure the State Ohio satisfy its voter list maintenance obligations
under Section the NVRA injuring the right vote members Judicial Watch who are
lawfully registered vote the State Ohio. More specifically, burdening members
constitutional right vote undermining their confidence the integrity the electoral
process and discouraging them from voting. Because the State Ohio has failed and failing satisfy its list maintenance obligations under Section the NVRA, lawfully registered
voters, including members Judicial Watch, are being deprived any certainty that their votes
will given due weight and will not cancelled out the votes persons who are not
entitled vote and therefore are being injured.
29.
The failure the State Ohio satisfy its voter list maintenance obligations
under Section the NVRA also harming the statutory rights members Judicial Watch
who are lawfully registered vote the State Ohio. Specifically, because these members
have registered vote the State Ohio, they 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. The State Ohio
failure satisfy its voter list maintenance obligations under Section the NVRA therefore
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22700
injuring the statutory rights members Judicial Watch who are lawfully registered vote
the State Ohio.
30.
Absent action Judicial Watch, unlikely that any individual member
Judicial Watch who lawfully registered vote the State Ohio would have the ability
the resources take action protect his her rights redress his her injuries with respect the State Ohio failure satisfy its voter list maintenance obligations under Section
the NVRA.
PLAINTIFF TRUE THE VOTE
31.
True the Vote regularly obtains official lists registered voters from States
across the nation, including the State Ohio, and uses these lists conduct programs
furtherance True the Vote mission restoring truth, faith, and integrity local, state, and
federal elections. Because True the Vote makes use these lists conducting its various
programs, relies States, including the State Ohio, provide lists that are reasonably
accurate and current and reasonably maintained.
32.
One such program True the Vote seeks analyze and verify official lists
registered voters and detect errors those lists. More specifically, True the Vote trains
volunteers review voter lists and compare those lists other publically available data.
When volunteer identifies registrations that appear duplicates registrations persons
who are deceased, have relocated, otherwise are ineligible vote particular jurisdiction,
those registrations are flagged and complaints are filed with appropriate elections officials. The
goal this particular program improve the accuracy and currency voter lists above and
beyond the minimum requirements the law. This program among the largest, not the
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largest, all True the Vote various programs and essential, integral part True the
Vote mission.
33. part its voter list verification program, True the Vote obtained voter lists
from the State Ohio, recruited and trained volunteers analyze and verify these lists, and
began the process analyzing and verifying them.
34.
The failure the State Ohio satisfy its voter list maintenance obligations
under Section the NVRA has injured and injuring True the Vote. Because the State
Ohio has failed satisfy its voter list maintenance obligations, the voter lists that True the Vote
obtained from the State Ohio are inaccurate and out date, making more difficult for True
the Vote use these lists furtherance its mission than would have been the State
Ohio had satisfied its voter list maintenance obligations under Section the NVRA. True the
Vote has suffered injury result.
35. addition, the failure the State Ohio satisfy its voter list maintenance
obligations under Section the NVRA has injured and injuring True the Vote impairing
True the Vote ability achieve essential, integral part its mission, namely, its voter list
verification program. True the Vote voter list verification program relies the States
conduct the reasonable voter list maintenance programs and activities required Section
the NVRA. The goal True the Vote voter list verification program improve the
accuracy and currency voter lists above and beyond the minimum requirements the law.
True the Vote non-for-profit, volunteer efforts supplement the voter list maintenance programs
and activities required the States under Section the NVRA, but cannot duplicate
replace the States taxpayer-funded voter list maintenance programs and activities. Because the
State Ohio has failed satisfy its voter list maintenance obligations under Section the
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NVRA, True the Vote impaired its ability carry out its voter list verification program
successfully the State Ohio and injured result.
36.
Moreover, the State Ohio failure satisfy its voter list maintenance
obligations under Section the NVRA also has injured and injuring True the Vote
causing divert resources away from other programs order devote those same resources its voter list verification program. For example, among its various programs restore
election integrity, True the Vote trains and mobilizes volunteers work election monitors. part this program, True the Vote creates instructional videos recruit election monitors,
holds training sessions and produces reference guides educate election monitors, and directs
volunteers who wish serve election monitors appropriate channels. Because the State
Ohio failed satisfy its voter list maintenance obligations under Section the NVRA, True
the Vote has had expend less its scarce resources programs such its election
monitoring program order expend more resources its voter list verification program.
37. August 10, 2012, True the Vote has expended over 150 hours
organizational time training volunteers analyze and verify the voter lists that True the Vote
obtained from the State Ohio for True the Vote voter list verification program. this
same date, True the Vote has only expended approximately hours support its election
monitoring program the State Ohio. True the Vote estimates that, due the failure the
State Ohio satisfy its voter list maintenance obligations under Section the NVRA, has
diverted approximately 100 hours organizational time away from its election monitoring
program order devote those same scarce resources its voter list verification program,
causing injury True the Vote result.
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CLAIM FOR RELIEF
(Violation the NVRA: Failure Conduct List Maintenance)
38.
Plaintiffs reallege paragraphs through fully stated herein.
39.
Defendant has failed fulfill the State obligation make reasonable efforts
remove the names ineligible voters from Ohio voter registration rolls, violation Section NVRA (42 U.S.C. 1973gg-6).
40.
Plaintiff True the Vote and members Plaintiff Judicial Watch have suffered
irreparable injury direct result Defendant failure fulfill the State Ohio obligation make reasonable efforts remove the names ineligible voters from Ohio voter
registration rolls violation Section the NVRA.
41.
Plaintiff True the Vote and members Plaintiff Judicial Watch will continue
suffer irreparable injury Defendant failure fulfill the State Ohio obligation make
reasonable efforts remove the names ineligible voters from Ohio voter registration rolls
violation Section the NVRA unless and until Defendant enjoined from continuing
violate the law.
42.
Plaintiff True the Vote and members Plaintiff Judicial Watch have adequate
remedy law.
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PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray for entry judgment:
Declaring Defendant violation Section the NVRA;
Enjoining Defendant from failing refusing comply with the voter list
maintenance obligations Section the NVRA the future;
Ordering Defendant pay Plaintiffs reasonable attorney fees, including
litigation expenses and costs, pursuant U.S.C. 1973gg-9(c); and
Granting Plaintiffs any and all further relief that this Court deems just and proper.
Dated: August 30, 2012
Respectfully submitted,
Paul Orfanedes*
Chris Fedeli*
JUDICIAL WATCH, INC.
425 Third Street S.W., Ste. 800
Washington, 20024
Tel: (202) 646-5172
Fax: (202) 646-5199
Email: porfanedes@judicialwatch.org
cfedeli@judicialwatch.org Counsel: Christian Adams
ELECTION LAW CENTER, PLLC
300 Washington Street, Ste. 405
Alexandria, 22314
/s/ David Langdon
David Langdon (OH Bar No. 0067046)
Trial Attorney
Joshua Bolinger (OH Bar No. 0079594)
LANGDON LAW LLC
8913 Cincinnati-Dayton Rd.
West Chester, Ohio 45069
Tel: (513) 577-7380
Fax: (513) 577-7383
Email: dlangdon@langdonlaw.com
jbolinger@langdonlaw.com
Attorneys for Plaintiffs
*pending admission pro vac vice
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Exh.
Case: 2:16-cv-00303-GCS-EPD Doc 54-2 Filed: 06/17/16 Page: PAGEID 22706
SETTLEMENT AGREEMENT
This settlement agreement (the Agreement) entered into January .l.Q_, 2014 (the
Effective Date) and between Judicial Watch, Inc. and True the Vote (collectively,
Plaintiffs) and Ohio Secretary State Jon Husted, his official capacity (Defendant).
Plaintiffs and Defendant (together, the Parties) are parties litigation captioned Judicial
Watch, Inc. and True the Vote Husted, Case 2:12-cv-00792, which was filed the United
States District Court for the Southern District Ohio August 30, 2012 (the Litigation).
RECITALS
WHEREAS, the claims the Litigation arise under the National Voter Registration Act 1993 (the NVRA);
WHEREAS, Ohio Secretary State Jon Husted, his official capacity, designated the
chief State election official, pursuant U.S.C. 1973gg-8, and responsible for
coordination the States responsibilities under the NVRA;
WHEREAS, Plaintiffs maintain that judgment their favor, including the items
contained the complaints Prayer for Relief, appropriate;
WHEREAS, Defendant disputes the allegations contained the complaint and denies
any and all liability thereunder;
WHEREAS, notwithstanding the foregoing, both Parties desire settle the Litigation;
NOW THEREFORE, the spirit cooperation and comity and avoid the expense
and time and the inherent risks associated with further proceedings related the Litigation, both
the Plaintiffs and the Defendant, and through the undersigned counsel, hereby agree,
consideration the mutual promises contained this Agreement, and other good and valuable
consideration, the receipt and sufficiency which hereby acknowledged, abide the
following terms and conditions.  Within days the execution the Agreement, the Parties shall execute and file
stipulation dismissal containing the following substantive language:
Pursuant Rule 4l(a)(l)(AXii) the Federal Rules Civil Procedure, plaintiffs
Judicial Watch, Inc. and True the Vote and defendant Jon Husted, his official
capacity Secretary State Ohio, hereby stipulate the dismissal this action
with prejudice, and without costs fees either party. the event that the Court (including the Clerk) rejects such filing for any reason, the
Parties shall both use their best efforts accomplish the same result another
stipulation amending that language little possible, filing unopposed
motion for voluntary dismissal upon the same terms, taking such other steps
may reasonably necessary. filing seeking dismissal the terms set forth
above not executed the Parties and filed with the Court within days the
Effective Date, such dismissal not granted the Court within months, this
agreement shall cancelled.
Case: 2:16-cv-00303-GCS-EPD Doc 54-2 Filed: 06/17/16 Page: PAGEID 22707
During the pendency the filing granting such stipulation other
comparable motion, neither party shall file any other motion seek any other
court relief, fulfill, seek have fulfilled, any discovery other obligation
related the Litigation, except set forth paragraph .b. the event that the Court, prior the dismissal this action, requests any
action Plaintiffs Defendant, the Parties agree notify the Court that
settlement has been reached and jointly request that such action cancelled.
The Parties agree file any ancillary stipulations motions required the
Court circumstances order ensure that further obligations related
the Litigation are imposed the Parties.  Defendant agrees, for the duration the term the Agreement, undertake, or, where
appropriate, continue undertake, the following actions: participate the State and Territorial Exchange Vital Events (STEVE)
administered the National Association for Public Health Statistics and
Information Systems (NAPHSIS) obtain out-of-state death information for list
maintenance purposes under the NVRA, with monthly updates local officials
for death removals the Statewide Voter Registration Database (SWVRD). participate the Interstate Voter Registration Cross-Check program
administered the Kansas Secretary State identify registered voters who
move out-of-state for list maintenance purposes under the NVRA. use Ohio Bureau Motor Vehicles data identify registered voters who
move within Ohio for list maintenance purposes compliance with Section
the NVRA, with updates local officials for removals address-changes the
SWVRD less frequently than permitted state law. use online voter registration change address encourage voters keep
their registration information current. conduct its monthly duplicate registration elimination program using SWVRD,
including minimal monthly duplicate thresholds greater than .030% for all
Ohio County Boards Election voter lists. keep online, and available for public access, current voter registration list. require the county boards election send accurate survey information
the Secretary States Office compiled and forwarded the Election
Assistance Commission for its NVRA-related surveys. use reasonable efforts promote the expanded use Ohios voter registration
online change address system recent college graduates, including education
Case: 2:16-cv-00303-GCS-EPD Doc 54-2 Filed: 06/17/16 Page: PAGEID 22708 remind recent college graduates keep their voter registration address and
information current and request necessary updates, and endeavor
coordinate these activities conjunction with Ohio colleges and universities. direct boards elections send confirmation notices annually voters who:
(a) did not vote election during two year period beginning and ending May and (b) did not engage any other voter-initiated activity (e.g., filing voter
registration fonn) during that same time period; and also query boards
elections reasonably regular basis whether this direction being
followed.  Plaintiffs may ask Defendant for reasonable, non-burdensome assurances that any one
more the terms the Agreement
are
being performed, means letter, sent
email fax. Defendant shall not unreasonably refuse provide such assurances.
Plaintiffs shall not send more than one such letter any three-month period the
Agreement. Ongoing negotiations concerning how particular request for assurance
shall provided, whether has been provided, shall not count separate requests for
assurances. the event that either party believes that the Agreement has been breached the other
party, the party asserting breach shall send letter, email fax, the other party
describing the alleged breach. Neither pa11y shall commence lawsuit alleging breach
this Agreement until days has elapsed from the time that the party seeking
commence such lawsuit has sent such letter.
This agreement shall expire November 10, 2018.  Both the Plaintiffs and Defendant, including any successor the office Secretary
State, any successor chief State election official under the NVRA and State law,
shall bolllld the terms this agreement during that time.  The Agreement shall contain the entire agreement between the parties and shall supersede
all prior written and oral agreements, representations, negotiations, promises, and
understandings between them.  The Agreement may amended only writing signed both the Parties. The
Parties agree receive and discuss all possible amendments the Agreement proposed good faith either party, and negotiate concerning such possible amendments
good faith. The Parties further agree not unreasonably withhold their consent
proposed amendment addressing unanticipated change circumstances that has
rendered one more the terms the Agreement unduly burdensome.  The Parties each agree not publicly disparage the other with respect the Parties
conduct decisions regarding the commencement the Litigation, the prosecution
defense the Litigation, the termination and settlement the Litigation.
Case: 2:16-cv-00303-GCS-EPD Doc 54-2 Filed: 06/17/16 Page: PAGEID 22709 The Agreement may executed counterparts, and faxed emailed signature sha11 deemed valid
original.
11. Nothing this Agreement shall deemed admission regarding the merits the
Litigation.
BY:
Robert Popper
Chris Fcdeli
JUDICIAL WATCH, INC.
425 Third Street S.W., Ste. 800
Washington, 20024 Christian Adams
ELECTION LAW CENTER, PLLC
300 Washington Street, Ste. 405
Alexandria, 22314
David Langdon
Joshua Bolinger
LANGDON LAW LLC
8913 Cincinnati-Dayton Rd,
West Chester, Ohio 45069 Beha(fofPlaintijJo; Judicial Watch, Inc.,
and True the Vote
Case: 2:16-cv-00303-GCS-EPD Doc 54-2 Filed: 06/17/16 Page: PAGEID 22710
OHIO SECRETARY STATE JON
HUSTED
__,_
By:
-.._,; ()I;(.,/i
./vC
Jack Christopher
Deputy Secretary State and
Chief Legal Counsel
180 Broad Street, 15th Floor
Columbus, Ohio 43215 behalfofDefendant Ohio Secretary
State Jon Husted
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