SI- Common Cause v. Kemp

You may view the statement of interest in pdf format.

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
COMMON CAUSE and the GEORGIA
STATE CONFERENCE OF THE
NAACP,
Plaintiffs,
v.
BRIAN KEMP, individually and in his
capacity as the Secretary of State of
Georgia,
Defendant.
Civil Action No. 1:16-cv-452-TCB
STATEMENT OF INTEREST OF THE UNITED STATES
I. INTRODUCTION
The United States respectfully submits this Statement of Interest pursuant to
28 U.S.C. § 517, which authorizes the Attorney General to attend to the interests of
the United States in any pending suit. This case presents an important question of
statutory interpretation of the National Voter Registration Act of 1993 (NVRA), 52
U.S.C. § 20501 et seq., and the Help America Vote Act of 2002 (HAVA), 52
U.S.C. § 20901 et seq. Congress gave the Attorney General broad authority to
enforce both the NVRA and HAVA on behalf of the United States. See 52 U.S.C.
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§§ 20510, 21111. Accordingly, the United States has a strong interest in ensuring
that both statutes are fully and uniformly enforced.
The NVRA requires states to “conduct a general program that makes a
reasonable effort to remove the names of ineligible voters from the official lists” of
registered voters, a process often referred to as “purging.” 52 U.S.C. §
20507(a)(4). HAVA does the same. 52 U.S.C. § 21083(a)(4)(A). Such a program
must be uniform and nondiscriminatory and in compliance with the Voting Rights
Act. 52 U.S.C. § 20507(b)(1). Among other grounds, the NVRA and HAVA
require removal of voters who have become ineligible by virtue of a change of
residence, pursuant to a designated purge process. Both statutes, however, also
expressly forbid purging voters merely for not voting. 52 U.S.C. §§ 20507(b)(2),
21083(a)(4)(A).
This case asks whether, consistent with federal law, a state may consider a
registered voter’s failure to vote to be reliable evidence that the voter has become
ineligible to vote by virtue of a change of residence, thus triggering the designated
NVRA purge process. Defendant argues that it can. In fact, it cannot.
Accordingly, the United States submits this Statement of Interest to address proper
NVRA and HAVA standards. The United States respectfully submits that
Defendant’s motion to dismiss should be denied.
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II. BACKGROUND
A. Georgia’s Current Purging Procedures
Georgia’s purging procedures for voters who may have changed residence
are as follows: First, at the start of each odd-numbered year, the Secretary of State
prepares a list of voters who have had “no contact” with election officials in the
past three years.1
1 “No contact” is a statutorily defined term under state law meaning that the voter
“has not filed an updated voter registration card, has not filed a change of name or
address, has not signed a petition which is required by law to be verified by the
election superintendent of a county or municipality or the Secretary of State, has
not signed a voter's certificate, and has not confirmed the elector's continuation at
the same address during the preceding three calendar years.” Ga. Code Ann. § 21-
2-234(a).
D’s Mot. to Dismiss at 8-10; Ga. Code § 21-2-234. At the
Secretary’s discretion, he may also include voters who have provided a change of
address to the U.S. Postal Service through its National Change of Address (NCOA)
program. Id.; Ga. Code Ann. § 21-2-233. Second, the Secretary must send these
voters a notice asking them to confirm whether they still reside at their current
address. Id.; Ga. Code Ann. §§ 21-2-233(c); 21-2-234(a). Next, if the voter does
not return the notice confirming her residence within 30 days, she is moved to the
“inactive list.” Id.; Ga. Code Ann. §§ 21-2-233(c); 21-2-234(g). Finally, if the
voter continues to have “no contact” with election officials through and including
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the second federal general election after the notice was mailed, the registration
record will be cancelled. Id.; Ga. Code Ann. § 21-2-235. Any voter whose
registration record is cancelled is ineligible to vote in state and federal elections in
Georgia until the voter submits a new registration form. Ga. Code Ann. § 21-2-
235(b).
B. Georgia’s Prior Purging Procedures and Preclearance
In 1993, Congress enacted the NVRA. In 1994, Georgia enacted its first
post-NVRA purging procedures, Ga. Code Ann. §§ 21-2-234; 21-2-235. Georgia
submitted those purge procedures to the Department of Justice for preclearance
review under Section 5 of the Voting Rights Act. The Department objected, based
on a determination that those procedures violated the NVRA by using non-voting
alone to trigger the purge process. Letter from Deval Patrick, Asst. Att’y Gen’l
(USDOJ), to Dennis R. Dunn, Sr. Asst. Att’y Gen’l (Ga.) (Oct. 24, 1994)
(Attached as Ex. 1 to P’s Compl.).
In 1997, Georgia submitted a slightly revised version of its purge
procedures, functionally similar to the procedures currently in Section 21-2-234,
for preclearance review under Section 5. The Department did not object to that
submission, but this lack of objection did not reflect or imply any finding regarding
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compliance with the NVRA.2 To the contrary, consistent with prevailing law and
Department regulations, however, the Section 5 determination letter expressly
indicated that the non-objection did not bar subsequent litigation to enforce the
NVRA. Letter from Isabelle Katz Pinzler, Acting Asst. Att’y Gen’l (USDOJ), to
Dennis R. Dunn, Sr. Asst. Att’y Gen’l (Ga.). (July 29, 1997) (Attached as Ex. 1 to
Br. in Supp. of D’s Mot. to Dismiss).3
III. LEGAL STANDARD
A. The National Voter Registration Act of 1993
The NVRA governs how covered states conduct voter registration and voter
list maintenance for federal elections.4
2 Earlier that same year, the Supreme Court decided Reno v. Bossier Parish School
Board, 520 U.S. 471 (1997). Bossier Parish held that a violation of Section 2 of
the Voting Rights Act could not independently support an objection under Section
5 of the Act. Based on that Supreme Court decision, the Department of Justice
determined that a state statute’s violation of another federal statute, such as the
NVRA, was an insufficient basis to support an objection under Section 5.
Congress enacted the NVRA in part to
3 Georgia is no longer covered by the preclearance requirement of Section 5 of the
Voting Rights Act, by virtue of the decision of the Supreme Court in Shelby
County v. Holder, 133 S. Ct. 2612 (2013).
4 A state is covered under the NVRA unless it either has no voter registration
requirement for federal elections or has allowed voter registration at the polling
place for federal elections continuously since August 1, 1994. 52 U.S.C. §
20503(b). Georgia is a state covered by NVRA requirements. Coverage under the
NVRA is distinct from coverage under the preclearance requirement of Section 5
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“increase the number of eligible citizens who register to vote” while protecting
“the integrity of the electoral process” by ensuring that “accurate and current voter
registration rolls are maintained.” 52 U.S.C. § 20501(b).
Section 8 of the NVRA addresses state voter list maintenance procedures for
federal elections. 52 U.S.C. § 20507. Among other things, it prescribes the
conditions under which voters may be purged and the procedures states must
follow before making those purges. 52 U.S.C. § 20507(a).
In Section 8, Congress set forth two new bedrock requirements for state
purging programs. First, programs to maintain accurate and current voter
registration lists must be “uniform” and “nondiscriminatory.” 52 U.S.C.
20507(b)(1). Second, states may not purge voters based on not voting:
Any State program or activity … ensuring the maintenance of an accurate
and current voter registration roll for elections for Federal office-- … shall
not result in the removal of the name of any person from the official list of
voters registered to vote in an election for Federal office by reason of the
person’s failure to vote….
52 U.S.C. § 20507(b)(2) (emphasis added).
The statute does delineate, however, conditions under which states may
properly purge registered voters. Those conditions include when the registrant
of the Voting Rights Act, and is in no way implicated by the Supreme Court’s
decision in Shelby County.
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requests to be removed from the list, or when reliable information reveals that the
voter has become ineligible to vote due to death, criminal conviction, mental
status, or changed residence. 52 U.S.C. § 20507(a)(3), (a)(4). As to this last
category, the NVRA requires states to “conduct a general program that makes a
reasonable effort to remove the names of ineligible voters from the official lists of
eligible voters by reason of … a change in the residence of the registrant….” 52
U.S.C. § 20507(a)(4). To do so, states must follow specific NVRA procedures.
First, the state must gather reliable evidence that the voter has become ineligible
based on a change of residence. One such process for gathering this evidence,
involving use of the U.S. Postal Service’s National Change of Address (NCOA)
database, is described in Section 8(c). Second, the state must notify the voter and
provide an opportunity to confirm (or rebut) the apparent address change, by
means of a specific forwardable confirmation mailing and waiting for two federal
general elections, before cancelling a voter’s registration, as described in Section
8(d).
1. Evidence of a Change of Residence
Section 8(c) of the NVRA cites the NCOA database as an objective and
reliable source for identifying voters who may have become ineligible to vote by
moving outside the jurisdiction. 52 U.S.C. § 20507(a)(4), (c). The NCOA is
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basically a safe harbor method of gathering address-change information; it is not
the only such source, and use of the NCOA is not mandatory. 52 U.S.C. §
20507(c). Likewise, an entry in the NCOA database is not by itself a sufficient
basis to purge; for example, the entry may reflect an error, or it may indicate an
individual’s desire to forward mail, unconnected to a change in voting residence.
As the NCOA information on potential address changes is second-hand and does
not come directly from the voter, the NVRA requires that states follow the specific
process in Section 8(d) to provide the voter with the opportunity to confirm or
rebut the evidence of the move.
2. The Notice, Waiting Period, and Cancellation Process
Once a jurisdiction has reliable evidence that a voter has moved, Section
8(d) of the NVRA describes in detail the process that election officials must follow
to give that voter the opportunity to confirm or rebut evidence of a possible change
of residence that would render the voter ineligible to vote in the jurisdiction
(referred to here as the Section 8(d) notice and cancellation process). Election
officials must send the voter a detailed notice by forwardable mail, designed to
reach the voter wherever she may be, asking the voter to confirm whether she has
in fact moved outside the registrar’s jurisdiction. 52 U.S.C. § 20507(d). The voter
may affirmatively confirm ineligibility in writing (and may then be purged). Id.
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Alternatively, the voter may rebut the evidence of ineligibility either by declaring
that she still resides within the jurisdiction or by appearing to vote. Id. If the voter
does not respond to that notice and does not vote or appear to vote at or before the
second federal general election following mailing of the notice, only then may the
state properly purge that voter from the voter rolls based on change of residence.
Id.
B. The Help America Vote Act of 2002
HAVA, which was enacted in 2002, imposes certain minimum standards
for states to follow in federal elections. For instance, Section 303 requires that
covered states adopt a computerized statewide database for voter registration
purposes. 52 U.S.C. § 21083. But HAVA leaves the NVRA and other federal
voting protections intact. HAVA makes clear that states must not undertake list
maintenance activities under the statewide database—including purging voters for
failure to vote—that are forbidden by the NVRA. Section 303(a)(2)(A)(i) provides
that if an individual is to be removed from a state’s voter registration list, the voter
“shall be removed in accordance with” the NVRA. 52 U.S.C. § 21083(a)(2)(A)(i).
And the statute restates the core principle that “no registrant may be removed
solely by reason of a failure to vote.” 52 U.S.C. § 21083(a)(4)(A).
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Section 903 amended the NVRA to clarify that states may use the Section
8(d) notice, waiting period, and cancellation process as part of a general program
to purge voters for whom there exists reliable second-hand evidence of a change in
residence (such as the NCOA database described in Section 8(c)). 52 U.S.C. §
20507(b)(2).5
And Section 906 addresses HAVA’s effect on other laws. 52 U.S.C. §
21145(a). It cautions that HAVA neither authorizes nor allows states to do
5 The relevant text of Section 8(b) of the NVRA, with the portion added by HAVA
in underline, is as follows:
(b) Any State program or activity to protect the integrity of the electoral
process by ensuring the maintenance of an accurate and current voter
registration roll for elections for Federal office …
(2) shall not result in the removal of the name of any person from the official
list of voters registered to vote in an election for Federal office by reason of
the person's failure to vote, except that nothing in this paragraph may be
construed to prohibit a State from using the procedures described in
subsections (c) and (d) to remove an individual from the official list of
eligible voters if the individual--
(A) has not either notified the applicable registrar (in person or in writing) or
responded during the period described in subparagraph (B) to the notice sent
by the applicable registrar; and then
(B) has not voted or appeared to vote in 2 or more consecutive general
elections for Federal office.
52 U.S.C. § 20507(b)(2) (emphasis supplied)
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anything prohibited by the NVRA or other federal voting statutes, and that nothing
in HAVA repeals, replaces, or limits the protections of those statutes. Id.6
IV. ARGUMENT
A. Using Failure to Vote to Trigger a Section 8(d) Purge Process
Violates Section 8 of the NVRA.
The NVRA and HAVA prohibit using non-voting as a basis to purge
registered voters. 52 U.S.C §§ 20507(b)(2), 21083(a)(4)(A). This is, in part, a
reaction to the purge practices of the past. See S. Rep. 103-6 at 17-19 (1993)
(explaining that at the time the NVRA was passed, “many States continue[d] to
penalize such non-voters by removing their names from the voter registration rolls”
even though that practice was “inefficient and costly” and some believe that it
tended to “disproportionately affect persons of low incomes, and blacks and other
minorities”).
The NVRA rejected this historical practice, and instead offered a balanced
approach to registration rolls that better reflect the eligible electorate. It ensured
that voters could be validly removed from the rolls upon reliable evidence of their
6 Section 906 includes only one exception to this general rule, not applicable here:
it changes some requirements of the NVRA to establish an identification
requirement for first-time voters who register by mail. 52 U.S.C. § 21145(a); see
also id. § 21083.
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ineligibility. But it also established firm procedures to ensure that eligible voters
would not be removed from the rolls merely for inactivity, without more.
Sections 8(b), 8(c), and 8(d) help supply this balance. Election officials
must establish a general program that makes a reasonable effort to purge the
registration records of individuals who have moved out of the jurisdiction. 52
U.S.C. § 20507(a)(4)(B). However, the NVRA provides a two-step process for
such purges, to minimize error. First, the jurisdiction must have some reliable
evidence that the voter has become ineligible due to a change of residence.
Election officials need not use the NCOA database. But Congress’s explicit
endorsement in Section 8(c) of the NCOA process as a safe harbor for identifying
changes of residence, paired with the ban on purging based on non-voting in
Section 8(b), signals Congress’ intent to ensure that any method states use to
trigger the Section 8(d) notice and cancellation process must be based upon
objective and reliable information of potential ineligibility due to a change of
residence that is independent of the registrant’s voting history. Id.; see also Welker
v. Clarke, 239 F.3d 596, 599 (3rd Cir. 2001) (noting in dicta that the NVRA
“strictly limited” removals based on changes of address, and that evidence of
moves must be “reliable” information such as the NCOA). Then, and only then, is
it appropriate to institute the Section 8(d) process: notifying the voter that there is
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some evidence of ineligibility, and allowing the voter an opportunity to either
confirm or rebut that evidence.
Without reliable evidence of a move to trigger the Section 8(d) notice and
cancellation process, voters might be purged based purely on inactivity rather than
actual ineligibility. Both the NVRA and HAVA clearly state that once registered,
an eligible voter’s decision not to vote (e.g., based on dissatisfaction with the
candidates on offer in particular elections) cannot suffice to place his or her
constitutional right to vote in jeopardy. Yet that is precisely the result Defendant
advocates in this case. Reliance on non-voting to trigger the Section 8(d) notice
and cancellation process—rather than independent, objective, and reliable evidence
of a changed residence—means that an eligible voter can be purged solely for
declining to participate.
Wilson v. United States, the sole court decision interpreting Section 8(b)(2)
of which we are aware, supports that view. See Order Granting in Part and
Denying in Part Plaintiffs Voting Rights Coalition and United States’ Motion for
Further Relief, Wilson v. United States, No. C 95-20042 at 5 (N.D. Cal. Nov. 2,
1995), as modified by Joint Stipulation to Substitute Language (N.D. Cal. Nov. 13,
1995) (attached as Exhibit 1). In Wilson, the Court considered a challenge to
California’s then-existing purging procedures. Under those procedures, a voter
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who had not voted in the previous six months was sent an initial non-forwardable
postcard to confirm his residency. Id. at 5 (as modified by joint stipulation). Only
if the U.S. Postal Service returned this initial non-forwardable postcard as
undeliverable would California send a subsequent Section 8(d) forwardable notice
and begin the cancellation process. Id. The Wilson court found the California
procedure complies with the NVRA specifically because the Postal Service
returning the initial postcard as undeliverable provides objective and reliable
evidence, independent from the voter’s activity or inactivity, that the voter had in
fact moved. Id. And even though such evidence is not itself dispositive, it is
sufficient to trigger the Section 8(d) process. Id.
The process ratified by the Wilson court stands in stark contrast to a purge
procedure triggered solely by a voter’s inactivity, and which does not rely on any
objective and reliable evidence that the voter has in fact moved (such as NCOA
information or returned undeliverable mail). A purge premised on inactivity alone
violates the NVRA’s ban on purging voters for non-voting. See id. (“Since the
State receives a card which states that the card is undeliverable and then the
addressee fails to vote in subsequent elections, [California’s purging procedure]
does not violate the NVRA.”).
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In 1997, after Wilson was decided, the Department of Justice authorized
lawsuits against Alaska and South Dakota under facts similar to those at issue here.
See Exhibits 2 and 3. Each state had adopted purging procedures that used nonvoting
to trigger the Section 8(d) notice and cancellation process. The Department
notified each state that its purging procedures violated Section 8’s ban on purging
for non-voting. The states subsequently agreed to stop using non-voting as the
trigger for beginning the Section 8(d) notice and cancellation procedure, and
instead adopted an undeliverable non-forwardable initial notice trigger similar to
that approved by the Wilson court. See Ak. Stat. 15.07.130(a),(b); S.D. Codified
Laws § 12-4-19. The position is consistent with the guidance on the NVRA that
the Department of Justice has given after the enactment of HAVA.7
7 The Department of Justice guidance stresses that a general program under Section
8 to purge voters who may have moved away should be triggered by reliable
second-hand information indicating a change of address outside of the jurisdiction,
from a source such as the NCOA program, or a general mailing to all voters. Dep’t
of Justice, The National Voter Registration Act of 1993 (NVRA) Questions and
Answers at ¶¶ 34-35 (available at https://www.justice.gov/crt/national-voterregistration-
act-1993-nvra); see also id. at ¶ 33 (giving examples of reliable,
objective alternatives to the USPS NCOA database); id. at ¶ 29 (reiterating that list
maintenance must be uniform, non-discriminatory, and in accordance with the
NVRA); cf. at ¶ 30 (discussing situations where notice and waiting period is
required, and using returned mail as an example of second-hand information that
triggers the notice and waiting period process before purging).
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Defendant argues that the NVRA does not require states to use the NCOA
database to determine that a voter has moved. Br. in Supp. of D’s Mot. to Dismiss
at 6-7; Reply Br. in Supp. of D’s Mot. to Dismiss at 9-10. That is true but beside
the point. While the NCOA database is the one source Congress specifically
mentioned for determining that a voter has moved away, states are free to use
analogous information sources and methodologies as long as they yield objective
and reliable evidence of a voter’s changed residence that is independent of voting
history. But states may not purge voters based on an impermissible assumption
derived solely from a registrant’s choice not to vote.8
Defendant also incorrectly suggests that because Section 8(d) permits voters
to correct erroneous confirmation mailings, states may use any means, including
non-voting, to determine which voters have moved away. Reply Br. in Supp. of
8 Because the NVRA’s plain text prohibits using non-voting to trigger the purging
process, the court need not review the statute’s legislative history. See Milavetz,
Gallop & Milavetz, P.A. v. United States, 559 U.S. 229, 236 n. 3 (2010). But that
history underscores Defendant’s error here. Congress designed the NVRA to
“ensure that once a citizen is registered to vote, he or she should remain on the
voting list so long as he or she remains eligible to vote in that jurisdiction,”
recognizing that “while voting is a right, people have an equal right not to vote, for
whatever reason.” S. Rep. 103-6 at 17 (1993). To protect this right, Congress
intended states to use reliable evidence such as the NCOA database rather than
failure to vote as a trigger for purging. See H.R. Rep. 103-9 at 15-16 (1993).
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D’s Mot. to Dismiss at 8-9. Although Section 8(d) provides a way for voters to
correct inadvertent errors resulting from the targeting process, it does not obviate a
state’s duty ab initio to use a reliable, objective process to target for removal only
registrants for whom there is evidence of ineligibility, and in no way allows what
the NVRA explicitly forbids: using failure to vote alone to trigger the Section 8(d)
notice and cancellation process.
Alternatively, Defendant argues that Georgia’s purge procedures are
triggered by “no contact,” as defined by state statute, and not by a registrant’s
failure to vote. Br. in Supp. of D’s Mot. to Dismiss at 12; Reply Br. in Supp. of
D’s Mot. to Dismiss at 11, n. 7. This misses the mark. Under Georgia law, the
definition of “no contact” for purposes of triggering the purge process is that a
voter has not voted, appeared to vote, signed a petition, or otherwise contacted
election officials. Id.
The absence of these activities is in no way evidence of ineligibility. A
voter’s decision not to vote or otherwise interact with the political process or
election officials says nothing reliable about whether a voter has become ineligible
by having moved away. And Congress’ intent to protect a citizen’s right not to
vote surely also encompasses the right not to appear to vote, or sign a petition, or
contact an election official if a voter elects not to do so. See S. Rep. 103-6 at 17
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(1993). Purge procedures therefore violate the NVRA regardless of whether they
use non-voting or Georgia’s definition of “no contact” to trigger the process for
purging voters without any reliable evidence of ineligibility.
B. HAVA’s Amendment to the NVRA Does Not Allow States to Target
Non-Voters for Purging Absent Reliable Evidence They Have
Changed Residence.
Defendant argues that Congress authorized a purge triggered by nonvoting
when it amended Section 8(b)(2) of the NVRA as part of HAVA’s enactment in
2002. See Br. in Supp. of D’s Mot. to Dismiss at 4-6; Reply Br. in Supp. of D’s
Mot. to Dismiss at 3-5. He is incorrect. HAVA’s amendment has no effect on the
NVRA’s prohibition against targeting non-voters for purging.
The language on which Defendant relies, added by Section 903 of HAVA, is
neither a substantive expansion nor restriction of the pre-existing procedures.
Rather, by its own terms, it is merely a rule of construction: “except that nothing in
this paragraph [prohibiting purging for failure to vote] may be construed to
prohibit a State from using the procedures described in subsections (c) and (d) to
remove an individual from the official list of eligible voters . . . .” 52 U.S.C. §
20507(b)(2) (emphasis added).
The best reading of this provision is as a clarification of the NVRA’s preexisting
requirements. The principle in Section 8(b)(2) that registrants may not be
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purged based on a failure to vote might possibly have been seen as in tension with
the procedures of Section 8(d) during the waiting period after the notice. After all,
Section 8(d) states that registrants for whom there exists reliable evidence of
change of residence and who do not respond to a notice of potential ineligibility
may be purged if they do not vote for two election cycles. So the HAVA proviso
clarified that there is no conflict: after states have identified voters who may have
moved based on reliable, objective, independent evidence, and sent the Section
8(d) notice of their potential ineligibility, states are free to purge if the voter does
not appear to vote for two election cycles. That language does not address the core
issue here: whether a state may use non-voting to trigger the Section 8(d) notice
and cancellation process specifically referenced by the 2002 HAVA amendments.
Defendant correctly notes that the amendment clarifies “that states could and
should remove voters from their registration lists, pursuant to a list maintenance
program, where a voter both failed to return a postage prepaid forwardable notice
and then also failed to vote for two additional federal election cycles.” Br. in
Supp. of D’s Mot. to Dismiss at 5-6; Reply Br. in Supp. of D’s Mot. to Dismiss at
3. We agree with this description of the process to the extent it describes the
Section 8(d) notice and cancellation process. But the question here is whether
Georgia may use non-voting as evidence of ineligibility, i.e., as the trigger for
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beginning the Section 8(d) notice and cancellation process. The answer was “no”
in 1993. It remains “no” after the 2002 HAVA amendment.
As originally enacted, the NVRA forbids purging registrants based on nonvoting.
Pub. L. 103-31, 107 Stat. 77, § 8(b)(2). HAVA did not change that. In
fact, it reiterated that “no registrant may be removed solely by reason of a failure to
vote.” 52 U.S.C. § 21083(a)(4)(A).
But even if the amended language of Section 8(b)(2) were unclear, Section
906 of HAVA rules out Defendant’s interpretation. It specifies that, other than
Section 303(b)’s changes to registration requirements for first-time voters
registering by mail, nothing in HAVA may be read to authorize conduct otherwise
forbidden by the NVRA.9
9 Section 906 of HAVA provides: “Except as specifically provided in section
21083(b) [amending Section 6 of the NVRA’s requirements for registrants by
mail] …, nothing in this chapter may be construed to authorize or require conduct
prohibited under any of the following laws, or to supersede, restrict, or limit the
application of such laws:
52 U.S.C. § 21145. And the legislative history of
Section 903 of HAVA (the NVRA amendment), makes clear that Congress
intended to keep the NVRA’s protections against improper purging in place:
…
(4) The National Voter Registration Act of 1993…”
52 U.S.C. § 21145(a).
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The minimum standard requires that removal of those deemed ineligible
must be done in a manner consistent with the National Voter Registration
Act (NVRA). The procedures established by NVRA that guard against
removal of eligible registrants remain in effect under this Act. Accordingly,
H.R. 3295 leaves NVRA intact, and does not undermine it in any way.
H.R. Conf. Rep. No. 107-730, pt. 1, at 81 (2002). Congress’s intent that the 2002
amendment not weaken any NVRA protection—including the bar against using
non-voting to trigger confirmation and removal procedures—is plain.
Defendant’s cites to large swaths of HAVA’s legislative history are
unavailing. They merely restate that the NVRA permits purging some voters who,
per objective and reliable evidence, may be ineligible, after the requisite notice and
waiting period. In fact, that legislative history reiterates the fundamental, and for
Defendant, fatal point that nothing in HAVA was intended to lessen the NVRA’s
protections. See Statement of Sen. Dodd, cited in Br. in Supp. of D’s Mot. to
Dismiss at 13. Thus, if a state’s use of non-voting to trigger the Section 8(d)
notice and cancellation process is not “consistent with the NVRA,” see id., it is
perforce inconsistent with HAVA.
C. HAVA Does Not Require States to Target Non-Voters for Purging
Absent Reliable Evidence They Have Changed Residence.
Defendant also appears to suggest that HAVA requires procedures that
purge nonvoters after a two-cycle waiting period. See Br. in Supp. of D’s Mot. to
Case 1:16-cv-00452-TCB Document 19 Filed 05/04/16 Page 21 of 27
-22-
Dismiss at 3-8. There is no such requirement. Just as Section 903 of HAVA
merely clarifies and approves what the NVRA previously allowed, Section 303 of
HAVA’s statewide database list maintenance provisions only permits action that is
consistent with the NVRA. See 52 U.S.C. § 21083(a)(2),(4).
Yet, Defendant seems to argue that HAVA and the NVRA compel its purge
procedures because states must “both register all eligible applicants and [] remove
all ineligible registered voters from the registration lists.” Br. in Supp. of D’s Mot.
to Dismiss at 5 (second emphasis added). This misreads the law. But more to the
point, procedures for determining “ineligibility” based on a change in residence are
fatally flawed if the basis for establishing ineligibility is a failure to vote. The
NVRA simply does not permit ad hoc guesswork about a voter’s residence to
presume that voter’s ineligibility to vote. To the contrary, objective and reliable
evidence (such as that derived from the NCOA database or an analogous source) is
required. Thus, while a state may seek to purge all ineligible voters from its voter
registration list, it may do so only after making reliable voter eligibility
determinations that comply with the NVRA. Neither the NVRA nor HAVA permit
a state to assume a voter has moved away from the jurisdiction (and thus become
ineligible) merely because that voter declined to vote. 52 U.S.C. §§ 20507(b)(2),
21083(a)(4)(A).
Case 1:16-cv-00452-TCB Document 19 Filed 05/04/16 Page 22 of 27
-23-
D. The Attorney General’s Preclearance of Georgia’s 1997 Purging
Procedures Indicates Nothing About Their Validity Under the NVRA.
Defendant argues that the Department of Justice’s preclearance under
Section 5 of the Voting Rights Act of Georgia’s purging procedures in 1997 after
objecting to a similar submission in 1994 signifies that those procedures were
legally compliant in all respects. Defendant is incorrect about the legal effect of
Section 5 preclearance.
That the Attorney General precleared the 1997 law, but not its 1994
predecessor, merely reflects intervening Supreme Court authority clarifying that
objections to voting changes under Section 5 of the Voting Rights Act cannot be
based on substantive violations of other laws. See Bossier, 520 U.S. at 471. The
1997 preclearance thus signified nothing more than that the 1997 Georgia statute
complied with Section 5: under the available evidence, the state had met its burden
under Section 5 of showing that the statute had neither a discriminatory purpose
nor a retrogressive effect based on race or language minority status. Indeed, the
Attorney General’s Section 5 procedures specifically note that “preclearance by the
Attorney General of a voting change does not constitute the certification that the
voting change satisfies any other requirement of the law beyond that of section
5…” 28 C.F.R. § 51.49. Likewise, the Attorney General’s Section 5 preclearance
Case 1:16-cv-00452-TCB Document 19 Filed 05/04/16 Page 23 of 27
-24-
letters, such as the 1997 preclearance letter to Georgia, explain that Section 5 itself
provides that preclearance does not preclude a subsequent challenge to the change
(including a challenge by the Department or private parties under the NVRA).10
IV. CONCLUSION
See Ex. 1 to Br. in Supp. of D’s Mot. to Dismiss. Hence, Defendant’s argument
that the Department’s preclearance under Section 5 of Georgia’s 1997 state
purging law reflects a determination that the law complied with the NVRA is
simply incorrect.
For the foregoing reasons, the United States respectfully submits that
Defendant’s interpretation of the NVRA and HAVA is incorrect and that this Court
should deny Defendant’s motion to dismiss.
10 Section 5 of the Voting Rights Act provides “Neither an affirmative indication
by the Attorney General that no objection will be made, nor the Attorney General's
failure to object, nor a declaratory judgment entered under this section shall bar a
subsequent action to enjoin enforcement of such qualification, prerequisite,
standard, practice, or procedure.” 52 U.S.C. § 10304(a).
Case 1:16-cv-00452-TCB Document 19 Filed 05/04/16 Page 24 of 27
-25-
Date: May 4, 2016
Respectfully submitted,
JOHN A. HORN
United States Attorney
Northern District of Georgia
/s/ Gabriel A. Mendel
GABRIEL A. MENDEL
Ga. Bar No. 169098
Assistant United States Attorney
Northern District of Georgia
600 United States Courthouse
75 Ted Turner Drive, SW
Atlanta, GA 30303
(404) 581-6000
VANITA GUPTA
Principal Deputy Assistant Attorney General
Civil Rights Division
/s/ Samuel G. Oliker-Friedland
T. CHRISTIAN HERREN, JR.
RICHARD A. DELLHEIM
SAMUEL G. OLIKER-FRIEDLAND
Attorneys, Voting Section
Civil Rights Division
U.S. Department of Justice
Room 7238 NWB
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
(202) 353-6196
Case 1:16-cv-00452-TCB Document 19 Filed 05/04/16 Page 25 of 27
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief is submitted in 14 point Times New Roman
font, as required by the U.S. District Court for the Northern District of Georgia in
Local Rule 5.1(C).
Date: May 4, 2016
/s/ Gabriel A. Mendel
GABRIEL A. MENDEL
Assistant United States Attorney
Case 1:16-cv-00452-TCB Document 19 Filed 05/04/16 Page 26 of 27
CERTIFICATE OF SERVICE
I hereby certify that the foregoing has been served this day on all counsel of
record through the ECF Filing System.
Date: May 4, 2016
/s/ Gabriel A. Mendel
GABRIEL A. MENDEL
Assistant United States Attorney
Case 1:16-cv-00452-TCB Document 19 Filed 05/04/16 Page 27 of 27
EXHIBIT 1
Case 1:16-cv-00452-TCB Document 19-1 Filed 05/04/16 Page 1 of 16
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
PETE WILSON, Governor of the
State of California; STATE OF
CALIFORNIA,
Plaintiffs,
vs.

UNITED STATES OF AMERICA;
JANET RENO, Attorney General;
TREVOR POTTER, Chairman,
Federal Elections Commission;
FEDERAL ELECTIONS COMMISSION,
Defendants.

Case No. C 95-20042 JW
Case No. C 94-20860 JW
(Related Action)
ORDER GRANTING
IN PART AND DENYING
IN PART PLAINTIFFS
VOTING RIGHTS
COALITION AND UNITED
STATES' MOTION FOR
FURTHER RELIEF
I. INTRODUCTION
Plaintiffs Voting Rights Coalition, et al. and the United States of America's
(collectively, "Plaintiffs") motion for further relief was heard by the Court on
Friday, October 20, 1995. -Robert Rubin appeared on behalf of the Coalition and
Holly Wiseman appeared on behalf of the United States Department of Justice.
Cyrus Rickards appeared on behalf of Governor Pete Wilson and the named state
agencies. In addition, Ms. Darlene Marquez, Co-Chairperson of the Voting
Case 1:16-cv-00452-TCB Document 19-1 Filed 05/04/16 Page 2 of 16

Rights Coalition, appeared and testified on behalf of Plaintiffs and Mr. John
Mott-Smith, Chief of the Elections Division of the Office of the Secretary of State
of the State of California testified on behalf of the Governor and state agencies.
Based upon all pleadings filed to date, the testimony of the witnesses
presented at the hearing and upon the oral argument of counsel, the Court
GRANTS in part and DENIES in part Plaintiffs' motion, as discussed below.
Il. BACKGROUND
On March 2, 1995) the Court wanted PJaiutiffs' motion for entry of a
permanent injunction, finding that the National Voter Registration Act
("NVRA"), 42 U.S.C. § 1973gg is constitutional. This finding was affirmed by
the Ninth Circuit Court of Appeals on July 24, 1995. Voting Rights Coalition, et
al. v. Pete Wilson, et al., No. 95-15449 (9th Cir. July 24, 1995). The Court
bifurcated the issue of implementation of the NVRA and ordered the State of
California and Governor Wilson to submit an implementation plan to the Court
for review.
On March 17, 1995, Defendants submitted a plan for implementation of the
NVRA. On May 4, 1995, the Court ordered the State to implement the plan
within forty-five ( 45) days and prohibited the removal of names from the voter
rolls "in a manner inconsistent with the NVRA." The parties then met and
conferred and attempted to resolve as many of the implementation issues as
possible without the intervention of the Court. The parties were able to resolve
all of their differences, with the exception of the issues now presented to the
Court through Plaintiffs' motion for further relief.
Plaintiffs contend that the issues remaining for resolution are mandated by
the NVRA and must be implemented by Defendants. The Governor and the
named state agencies contend that they are properly implementing the

2
Case 1:16-cv-00452-TCB Document 19-1 Filed 05/04/16 Page 3 of 16

requirements which are set forth in the NVRA. Defendants contend that the
issues set forth in Plaintiffs' motion are simply not requirements which are
mandated by the NVRA nor are such issues necessary to carry out the intent of
Congress. These disputed issues are set forth and discussed separately below.
III. LEGAL STANDARDS·
The "starting point for interpreting a statute is the language of the statute
itself. Absent a clearly expressed legislative intention to the contrary, that
language must ordinarily be regarded as conclusive." Consumer Product Safety
Com'n v. GTE Sylvania, Inc., 100 S.Ct. 2051, 2056 (1980). In order to determine
whether such a "clearly expressed legislative intention" exists, the Court looks to
the legislative history of the statute. I.N.S. v. Cardoza Fonseca, 107 S.Ct. 1207,
1213, n. 12 (1987). "If a court, employing traditional tools of statutory
construction, ascertains that Congress had an intention on the precise question at
issue, that intention is the law and must be given effect." Id at 1221, quoting
U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, n. 9 (1984). Applying these standards, the Court finds as follows.
IV. DISCUSSION
A. DMV Voter Registration
Pursuant to the NVRA, "[A]ny change of address form submitted in
accordance with State law for purposes of a State motor vehicle driver's license
shall serve as notification of change of address for voter registration with respect
to elections for Federal office for the registrant involved unless the registrant
states on the form that the change of address is not for voter registration
purposes." 42 U.S.C. § 1973gg-3(d). According to this section, a registrant's
change of address is presumed to be for the purposes of both the DMV and voter
registration, unless indicated otherwise by the applicant.
3
Case 1:16-cv-00452-TCB Document 19-1 Filed 05/04/16 Page 4 of 16

By this motion, Plaintiffs contend that the change of address fonn currently
used by the State of Californiareverses the presumption established by the
NVRA, so that an applicant's change of address is not presumed to be for both
purposes ofDMV and voter registration, unless the applicant indicates otherwise.
The fonns currently utilized by the California DMV facilities contains the
following options:
_ I have moved to a new county and wish to update my voter record ....
_ I have moved within the same county and wish to update my voter
record ....
As indicated by the Defendants in their implementation plan, if neither box
is checked, DMV will assume that the applicant does not wish to update his or her
voter record. Plaintiffs contend that such an assumption violates the purpose and
intent of the NVRA. Defendants argue that it "is the infonn~d judgment of the
Secretary of State that the potential for error and hann is greater through a system
of automatic updating of registration records than with the present system."
(Declaration of John Mott-Smith, p. 2). However, Defendants also state that the
new DMV forms, which will be available within six ( 6) months, will include a
separate box which indicates that the applicant does not want his or her voter
record updated. In the interim 6 month period, Defendants request that they be
permitted to use the present forms and apply the presumption that if neither box is
checked, the applicant does not want his or her address updated for voting
purposes.
Based upon the clear statutory language as contained in the NVRA, the
Court finds that the NVRA mandates that any change of address for DMV
purposes also be presumed to be for voter registration purposes, unless the
applicant "states on the form that the change of address is not for voter
4

Case 1:16-cv-00452-TCB Document 19-1 Filed 05/04/16 Page 5 of 16

registration purposes." Therefore, if the State of California chooses to utilize
forms which do not provide a space within which an applicant may indicate that
he or she does not wish an address change to apply for purposes of voter
registration, then the State must apply the presumption that all changes of
addresses apply for both DMV and voter registration purposes. Accordingly, the
Court will permit the DMV to use the present forms only during the interim
period between now and the time that the new forms are ready for use. If no box
is checked, the State must assume that the applicant wishes to update his or her
voter record.
B. Annual Residency Confirmation
The NVRA prohibits the removal of the name of any person from the list of
official voters for failure to vote. 42 U.S.C. § 1973gg-6(b)(2). Through its
"Annual Residency Confirmation and Outreach Procedure"("ARCOP"), the State
of California sends a postcard to voters inquiring whether such voter still lives at
the present address. If the card is returned as undeliverable AND the voter does
not vote in two (2) subsequent federal elections, then the voter's name is purged
from the list. Plaintiffs contend that this procedure violates the NVRA because it
impermissibly drops registrants from the list for failure to vote. Defendants
contend that the method is pennissible because the voter is not dropped simply
due to a failure to vote, but also because there is not a current address for such
voter.
The Court disagrees with Plaintiffs that the State's procedure, although not
directly based on a voter's failure to vote, results in a voter being dropped from
the list for his or her failure to vote. Since the State receives a card which states
that the card is undeliverable and then the addressee fails to vote in subsequent
elections, the Court finds that the State's current "Residency Confirmation and

5

Case 1:16-cv-Oq452-TCB Document 19-1 Filed 05/04/16 Page 6 of 16

Outreach Program" does not violate the NVRA. Accordingly, the Court DENIES
Plaintiffs' motion to discontinue such program.
C. California Elections Code Sections Preempted by the NVRA
Plaintiffs contend that 16 sections of the California Election Code are
preempted by the NVRA and should be enjoined by the Court. The State does not
argue that such sections are preempted, but requests that the Court refrain from
enjoining specific statutes until all implementation issues are resolved since the
State is operating under this Court's Order to comply with the NVRA and is not,
therefore, implementing any state election codes which conflict with the NVRA.
The Court considers, however, that all implementation issues are now
resolved as a result of this hearing. However, the Court is concerned that the
statutes which Plaintiffs contend are preempted by the NVRA may contain
subsections or subparts that are not preempted. Therefore, the Court orders that
the parties review all Elections Code Sections and submit a list to the Court
within twenty (20) days of the date of this Order indicating which specific
Sections, including subsections and/or subparts, are preempted by the NVRA.
Until further order of the Court, all California Elections Code Sections which are
preempted by the NVRA may not be enforced by the State of California.
D. Compliance Reports
Plaintiffs finally request that the Court establish a reasonable reporting
mechanism whereby it may monitor the State's compliance with the NVRA.
Plaintiffs suggest that the Court require the State to submit a 30-day status report
to be followed by quarterly reports as to its compliance with the implementation
issues. Defendants argue that such a requirement is burdensome, expensive and
unnecessary in light of the requirements of the NVRA.
At the hearing, the parties agreed to meet and confer and that the
6

Case 1:16-cv-00452-TCB Document 19-1 Filed 05/04/16 Page 7 of 16

Department of Justice would submit a list to the Court indicating exactly what
type(s) of report it would like from the State to ensure compliance with the
NVRA. The State then agreed to respond to the Department's list and the matter
would be deemed submitted to the Court upon the State's response. The Court
therefore DEFERS Plaintiffs' request for compliance reports by the State until the
receipt of the State's brief. The Department of Justice shall submit a report
within twenty (20) days of the date of this Order. The State shall submit a
response to such report within five (5) days of the submission of the Department's
report. The matter will then be deemed submitted on the papers. In the interim,
the Court retains jurisdiction over any and all implementation issues in this
action. If Plaintiffs discover that Defendants are not complying with the
provisions of the NVRA, or of this Order, they may request emergency relief by
filing an ex parte application with the Court requesting appropriate relief.
Therefore; the Court DEFERS Plaintiffs' request that the State submit compliance
reports on a quarterly basis.
E. Equitable Relief
Finally, Plaintiffs requ~st that the Court enter an Order which provides.
equitable remedial relief on behalf of those persons who entered social service
agencies between January 1, 1995 until the effective date of the Court's Order of
Implementation filed on May 4, 1995 and were deprived of the right to register to
vote at the agency due to the Governor's failure to timely implement the NVRA.
Plaintiffs' request does not include any Department of Motor Vehicles ("DMV")
since the parties entered a separate agreement regarding a remedial remedy for
such agency. Plaintiffs contend that the Court should order that the Defendants
send each and every person who contacted a social service agency during the
relevant time period a voter registration application.
7

Case 1:16-cv-00452-TCB Document 19-1 Filed 05/04/16 Page 8 of 16

 The Defendants argue that such a request is extremely costly and
unwarranted given the fact that many of the people who contacted a social service
agency during the relevant tiille period are people who continue to have contact
with the agency and have since been afforded an opportunity to register to vote at
the agency. Therefore, Defendants assert that they should be required only to
contact those people who did not and will not return to the agency and inform
such people that they may call and request that a voter registration application be
sent to them.
Based upon all pleadings filed to date, as well as on the oral argument of
counsel, the Court orders that the Defendants send each and every person who
visited a social service agency between January 1, 1995 through June 10, 1995
AND who will not return to a social service agency again within the next six ( 6)
months a voter registration application. Such application mu~t be sent within
sixty (60) days of the date of this Order. Defendants shall also file with the Court
and serve upon Plaintiffs a copy of the list of applicants to whom a voter
registration application is being sent as soon as such list is available to
Defendants but no later than forty-five (45) days from the date of this Order.
V. CONCLUSION
Based upon the foregoing, the Court GRANTS Plaintiffs' motion for
further relief as to the DMV Voter Registration change of address forms, the
California Elections Code Sections and remedial equitable relief as set forth
herein and DENIES and/or DEFERS Plaintiffs' motion for further relief as to all
other issues discussed herein.
95102501.civ
IT IS SO ORDERED.

8

Case 1:16-cv-00452-TCB Document 19-1 Filed 05/04/16 Page 9 of 16
DATED: October 30, 1995

/s/James Ware

JAMES WARE

United States District Judge

9
Case 1:16-cv-00452-TCB Document 19-1 Filed 05/04/16 Page 10 of 16

This is to certify that copies of this order have been mailed to:
Robert Rubin
LAWYERS' COMMITTEE FOR CIVIL RIGHTS
OF WITH THE SAN FRANCISCO BAY AREA
301 Mission Street, Suite 400
San Francisco, CA 94105

Mark D. Rosenbaum
ACLU FOUNDATION OF SOUTHERN
CALIFORNIA
1616 Beverly Drive
Los Angeles, CA 90026

Alan L. Schlosser
ACLU FOUNDATION OF NORTHERN
CALIFORNIA
1663 Mission Street, Suite 460
San Francisco, CA 94103

Kathryn K. Imahara
ASIAN PACIFIC AMERICAN LEGAL
CENTER OF SOUTHERN CALIFORNIA
1010 South Flower Street, Suite 302
Los Angeles, CA 90015

William R. Tamayo
ASIAN LAW CAUCUS, INC.
468 Bush Street, Third Floor
San Francisco, CA 94108
Joaquin G. Avila
Voting Rights Attorney
Parktown Office Building
177 4 Clear Lake A venue
Milpitas, CA 95035

Harry Bremond
WILSON, SONSINI, GOODRICH & ROSATI
650 Page Mill Road
Palo Alto, CA 94304-1050

Case 1:16-cv-00452-TCB Document 19-1 Filed 05/04/16 Page 11 of 16

David H. Raizman
WESTERN LAW CENTER FOR
DISABILITY RIGHTS
1441 W. Olympic Blvd.
Los Angeles, CA 90015

Elaine B. Feingold
DISABILITY RIGHTS AND EDUCATION
DEFENSE FUND, INC.
2212 Sixth Street
Berkeley, CA 94710

Cyrus J. Rickards
OFFICE OF WITH THE ATTORNEY GENERAL
1515 K Street
P.O. Box 944255
Sacramento, CA 94244-2550

Pete Wilson
GOVERNOROFWITHTHESTATEOFCALIFORNIA
1st Floor, State Capitol
Sacramento, CA 95814

Bill Jones
SECRETARY OF STATE
1230 J Street, Suite 209
Sacramento, CA 95814

Brenda Premo
DEPARTMENT OF REHABILITATION
830 K Street, Room 307
Sacramento, CA 94244

Frank Zolin
DEPARTMENT OF MOTOR VEIIlCLES
2415 1st Avenue
Sacramento, CA 95818

Eloise Anderson
DEPARTMENT OF SOCIAL SERVICES
744 P Street
Sacramento, CA 95814

Case 1:16-cv-00452-TCB Document 19-1 Filed 05/04/16 Page 12 of 16


Holly Lee Wiseman
U.S. DEPARTMENT OF JUSTICE
Civil Rights Division, Voting Section
P.O. Box 66128
Washington, D.C. 20035-6128

Lawrence E. Noble
FEDERAL ELECTIONS COMMISSION
999 E Street, N.W.
Washington, D.C. 20463

Michael J. Yamaguchi
UNITED STATES ATTORNEY
450 Golden Gate Avenue
San Francisco, CA 94102

DATED: 11/2/95 CLERK OF COURT
By: /s/ Ronald L. Davis

Ronald L. Davis
Deputy Clerk

Case 1:16-cv-00452-TCB Document 19-1 Filed 05/04/16 Page 13 of 16

 JANET RENO, Attorney General
for the United States
DEVAL L. PATRICK, Asst. Atty General
ELISABETH JOHNSON
BARRY H. WEINBERG
HOLLY LEE WISEMAN
Attorneys, Voting Section
Civil Rights Division
United States Department of Justice
P.O. Box 66128
Washington, DC 20035-6128
Telephone: (202) 514-5686

Attorneys for UNITED STATES
OF AMERICA and JANET RENO

Local counsel:
MICHAEL J. YAMAGUCHI
United States Attorney
No. Dist. of California
MARY BETH UITTI
Chief of Civil Division
WILLIAM MURPHY
South First Street
Suite 371
San Jose, CA 95113
(408) 291-6464

ORIGINAL FILED Nov 13 1995

Richard W. Wieking

Clerk U.S. District Court

Northern District of California

San Jose

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

PETE WILSON, et al.,

CASE NO. C95-20042 JW
CASE NO. C94-20860 JW
12 Plaintiffs, (Consolidated)
13 v. JOINT STIPULATION
14 UNITED STATES OF AMERICA, )
)
)
)
)
et al.,
15
Defendants,
16
~~~~~~~~~~~~~~~~~~/
17
JOINT STIPULATION TO SUBSTITUTE LANGUAGE
18
Corne now all parties to the above-styled causes, by and
19
through their attorneys, and stipulate as follows:
20
That the following language shall be substituted for
21
paragraph 2 on page 5 of this Court's Order filed November 2,
22
1995 (which paragraph begins: "The NVRA prohibits the removal of
23
the name of any person from the list of official voters for
24
failure to vote."):
25
The NVRA prohibits the removal of the name of any
26
person from the list of official voters for failure to
27
28 Joint Stipulation

Case 1:16-cv-00452-TCB Document 19-1 Filed 05/04/16 Page 14 of 16

vote. 42 U.S.C. Sec. 1973gg-6(b) (2). The United States
and Voting Rights Coalition contend that the state's
proposed list cleaning procedure ("RCOP," for Residency
Confirmation Outreach Procedure) violates this section
of the Act because the process begins by sending postal
inquiries to non-voters.
As outlined in the state's implementation plan
(Chapter 5, pp. 5-12), RCOP would function as follows:
Approximately 6 months prior to the primary election in
even-numbered years and approximately six months after
the general election in odd-numbered years, county
registrars would send out a nonf orwardable residency
confirmation postcard to those voters who had not voted
within the past six months (in the case of pre-primary
RCOP) or in the last general election (in the case of
post general election RCOP) .
If the postcard were returned as undeliverable
without forwarding address information, a forwardable
confirmation notice would be sent out pursuant to 42
U.S.C. 1973·gg-6 (d) (2) of the NVRA. If this notice were
not returned and the voter did not vote in the next two
federal elections, the voter would be removed from the
registration list.
28 Joint Stipulation 2
Case 1:16-cv-00452-TCB Document 19-1 Filed 05/04/16 Page 15 of 16

Dated: November 9, 1995
Respectfully submitt ed,
DANIEL E. LUNGREN
Attorney General
Lawye ' Committee for
Civil Rights of the
San Francisco Bay Area
· Attorneys for Voti ng Rights
Coalition
Assi ant Attorney Gen eral ·
ELI A.BETH JOHNSON
BARRY WEINBERG
HOLLY LEE WISEMAN
Attorneys, Voting Section
Civil Rights Division
U.S. Department of Justice
Attorneys for Uni ted States
and Janet Reno
28 Joint Stipulation 3

Case 1:16-cv-004~,-TCB Document 19-1 Filed 05/041~6 Page 16 of 16
. ~/
EXHIBIT
2
Case 1:16-cv-00452-TCB Document 19-2 Filed 05/04/16 Page 1 of 3
ase 1:16-cv-00452-TCB Document 19J:B. }Jif~OOoffiJusO~e 2 of 3
Office of the Assistant Altomey General
VIA TELEFACSIMILE & FEDERAL EXPRESS
The Honorable Mark Barnett
Attorney General
State of South Dakota
500 East Capitol A venue
Pierre, South Dakota 57501-5070
Dear Mr. Attorney General:
Civil Rights Division
Washington, D.C. 20530
February 11, 1997
This is to notify you that I have authorized the filing of a lawsuit against the State of
South Dakota, the South Dakota State Board of Elections, and the South Dakota Secretary of
State to compel compliance with the National Voter Registration Act of 1993 ("NVRA"), 42
U.S.C. §§ 1973gg to 1973gg-10.
As you are aware, the NVR.A, which took effect January 1, 1995, requires that states
follOV(- specific procedures and protections set forth in the Act in purging registrants from the
registration list for elections for federal office. In particular, the NVRA provides that a voter
may not be removed from the registration list for federal elections by reason of the voter's
failure to vote. 42 U.S.C. § 1973gg-6(b)(2). The Act also provides that voter removal
programs for federal elections must be conducted in a manner which is uniform,
nondiscriminatory and in compliance with the Voting Rights Act of 1965. 42 U.S.C.
§ 1973gg-6(b )(1 ).
Under South Dakota's voter removal procedures, which were adopted to conform state
law to the requirements of the NVR.A, registered voters who fail to vote within a four year
period are specifically targeted for inclusion in the state's voter removal program. These
procedures can have the end result of a voter being purgeq from the voter registration list for
federal elections simply for having failed to vote. As we have made clear in correspondence
Case 1:16-cv-00452-TCB Document 19-2 Filed 05/04/16 Page 3 of 3
to the Secretary of State on June 19, 1995, December 7, 1995, and November 5, 1996, these
procedures violate the NVRA.
Our concern is that no registered voter in the State of South Dakota be purged from
the registration list for federal elections because of his or her failure to vote. Thus, we intend
to move forward on this matter expeditiously. However, we are willing to delay filing the
complaint for a short period of time if the State is willing to resolve this matter voluntarily
and negotiate a consent decree that would be filed with the complaint.
Under these circumstances, we request that you apprise us within ten days whether the
State wishes to discuss settlement of this matter. Patricia O'Beirne, an attorney in the Voting
Section, will be in contact with your office. In the meantime, Ms. O'Beirne can be reached at
202-307-6264.
Sincerely,
Isabelle Katz Pinzler
Acting Assistant Attorney General
Civil Rights Division
EXHIBIT
3
Case 1:16-cv-00452-TCB Document 19-3 Filed 05/04/16 Page 1 of 3
ase 1:16-cv-00452-TCB Document 19:13l. f)ij~flbl'SruJa~e 2 of 3
Civil Rights Division
Office of the Assistant Attomey General Washington, D.C. 20530
February 11, 1997
VIA TELEFACSIMILE & FEDERAL EXPRESS
The Honorable Bruce M. Botelho
Attorney General
State of Alaska
450 Diamond Courthouse
P.O. Box 110300
Juneau, Alaska 99811-0300
Dear Mr. Attorney General:
This is to notify you that I have authorized the filing of a lawsuit against the State of
Alaska, the Alaska Lieutenant Governor, ai;td the Alaska Director of Elections to compel
compliance with the National Voter Registration Act of 1993 ("NVRA"), 42 U.S.C.
§§ 1973gg to 1973gg-10 .
... As you are aware, the NVRA, which took effect January 1, 1995, requires that states
follow specific procedures and protections set forth in the Act in purging registrants from the
registration list for elections for federal office. In particular, the NVRA provides that a voter
may not be removed from the registration list for federal elections by reason of the voter's
failure to vote. 42 U.S.C. § 1973gg-6(b)(2).
Under Alaska's voter removal procedures, which were adopted for the stated purpose
of conforming state law to the requirements of the NVRA, registered voters who fail to vote
within a four-year period are specifically targeted for inclusion in the state's voter removal
program. These procedures can have the end result of a voter being purged from the voter
registration list for federal elections simply for having failed to vote. As we discussed in our
December 10, 1996 letter to Assistant Attorney General Kathleen Strasbaugh, these procedures
violate the NVRA.
Case 1:16-cv-00452-TCB Document 19-3 Filed 05/04/16 Page 3 of 3
Our concern is that no registered voter in the State of Alaska be purged from the
registration list for federal elections because of his or her failure to vote. Thus, we intend to
move forward on this matter expeditiously. However, we are willing to delay filing the
complaint for a short period of time if the State is willing to resolve this matter voluntarily
and negotiate a consent decree that would be filed with the complaint.
Under these circumstances, we request that you apprise us within ten days whether the
State wishes to discuss settlement of this matter. Patricia O'Beirne, an attorney in the Voting
Section, will be in contact with your office. In the meantime, Ms. O'Beirne can be reached at
202-307-6264.
Sincerely,
Isabelle Katz Pinzler
Acting Assistant Attorney General
Civil Rights Division