Page 1
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JOSE MORALES, on behalf of )
himself and those similarly situated, )
NATIONAL ASSOCIATION )
FOR THE ADVANCEMENT OF )
COLORED PEOPLE (NAACP), as an ) CIVIL ACTION NO.
organization; GEORGIA ) 1:08-CV-3172 JTC-WSD-SFB
ASSOCIATION OF LATINO )
ELECTED OFFICIALS (GALEO), ) THREE JUDGE PANEL
as an organization; and THE )
CENTER FOR PAN ASIAN )
COMMUNITY SERVICES (CPACS), )
as an organization, )
)
Plaintiffs, )
V )
)
KAREN HANDEL, in her official )
capacity as Georgia Secretary of State, )
)
Defendant. )
DEFENDANT’S BRIEF IN OPPOSITION TO
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
AND PERMANENT INJUNCTIVE RELIEF
Plaintiffs seek permanent injunctive relief based on the United States
Department of Justice’s (“DOJ”) May 29, 2009, letter in which it interposed
an objection to the Defendant’s current citizenship verification process.
Defendant submits that Plaintiffs’ Section 5 claim is not ripe for review by
this Court based on the fact that Defendant has requested that DOJ
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2
reconsider its May 29, 2009 decision. Defendant’s Exhibit 9. See also U.S.
Department of Justice, Notices of Preclearance Activity, August 24, 2009,
available at http://www.usdoj.gov/crt/voting/notices/vnote082409.php (Last
visited September 18, 2009).
“The role of the three-judge court entertaining an action under
section 5 of the Voting Rights Act is limited. The three-judge court
determines ‘(1) whether a change [is] covered by § 5, (ii) if the change [is]
covered, whether § 5's approval requirements were satisfied, and (iii) if the
requirements were not satisfied, what remedy [is] appropriate.’” Brooks v.
State Board of Elections, 775 F. Supp. 1470, 1475 (S.D. Ga. 1989) (quoting
City of Lockhart v. United States, 460 U.S. 125, 129 (1983)).
As to the first issue, the Three-Judge Panel ruled in its October 27,
2008, Order that the citizenship verification process is covered by Section 5
and therefore required preclearance. [Doc. 36 at 21-22]. On May 25, 2009,
DOJ advised the Georgia Attorney General of its objection to the
citizenship verification process.1 Defendant’s Exhibit 7.
1 In its letter, the DOJ raised concerns about the State of Georgia’s
voter verification process as it relates to the verification of other voter
information, including first name, last name, date of birth, drivers’ license
number, and last four digits of the social security number. However, the
only portion of the verification process at issue before this Court is the
verification of citizenship status.
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Plaintiffs argue that because DOJ interposed an objection to the
Defendant’s Section 5 submission, the only issue that remains for the Court
is to determine what remedy is appropriate. However, this ignores the fact
that the DOJ’s decision is still under reconsideration. So long as
Defendant’s citizenship verification process is under review by DOJ, it
would be premature for this Court to attempt to fashion any judicial
remedy.
“A claim is not ripe for adjudication if it rests upon contingent future
events that may not occur as anticipated, or indeed may not occur at all.”
Texas v. United States, 523 U.S. 296, 300 (1998)(citations and quotations
omitted). See also Harris v. Mexican Specialty Foods, Inc., 564 F.3d 1301,
1308 (11th Cir. 2009); Myers v. City of McComb, 2006 U.S.Dist. LEXIS
37929 at *3 (S.D. Miss. 2006). In Myers, the court granted the defendant
City of McComb’s motion for stay of proceedings pending a determination
by the Supreme Court of Mississippi as to whether a state legislative
provision was subject to, and had been, precleared. 2006 U.S. Dist. LEXIS
37929 at *3.
The ripeness doctrine “is drawn from both Article III limitations on
judicial power and from prudential reasons for refusing to exercise
jurisdiction.” Reno v. Catholic Soc. Servs., 509 U.S. 43, 57 n.18 (1993).
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4
Article III of the United States Constitution requires that federal courts limit
their jurisdiction to actual cases and controversies. U.S. Const., art. III.,
§ 2, cl.1. See also Virginia v. Reno, 117 F. Supp. 2d 46, 51 (2000)(citing
Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990)). “Prudential”
ripeness reflects the “court's interests in avoiding unnecessary adjudication
and in deciding issues in a concrete setting.” Grand Canyon Air Tour
Coalition v. Fed. Aviation Admin., 154 F.3d 455, 472 (D.C. Cir. 1998).
In Virginia v. Reno, the State of Virginia filed a declaratory judgment
action seeking a declaration that the State was not required to obtain
preclerance of a recently enacted state law, which mandates the use of
unadjusted figures when reapportioning electoral districts. See Va. Code
Ann. § 24.2-301 (2000). The Department of Justice filed a motion to
dismiss based on the fact that the State of Virginia had a Section 5
submission still pending and also based on the fact that the 2000 census
figures had not yet been released.
The three-judge panel in the Virginia case agreed with DOJ that these
two contingencies made it improvident for the court to consider plaintiffs’
claims. 117 F. Supp. 2d at 51. In considering whether any of plaintiffs’
claims were ripe for judicial decision, the court said it evaluates: “whether
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the issue is ‘(a) essentially legal, and (b) sufficiently final.’” Id. (quoting
Consol Rail Corp., 896 F.2d 574, 577 (D.C. Cir. 1990)).
In the case at hand, the key issue for the Court to determine in order
to evaluating Plaintiffs claims is: “whether § 5's approval requirements
were satisfied.” Brooks, 775 F. Supp. at 1475. That issue is neither
“essentially legal” nor “sufficiently final” for this Court to reach a
determination at this time. Virginia, 117 F. Supp. 2d at 51. The
determination of whether Defendant’s citizenship verification process meets
Section 5’s approval requirements is not a purely legal issue, but depends
heavily on the particular facts of the case. As such, this Court should await
the final determination by DOJ. As the court did in the Virginia case, this
Court should dismiss Plaintiffs’ claims without prejudice. 117 F. Supp. 2d
at 54.
Plaintiffs argue that because Defendant’s request for reconsideration
contains a proposed revised voter verification process, it constitutes a “new”
submission, and therefore it should not be construed as a request for
reconsideration. See Plaintiffs’ Brief at 12, n. 6. Initially, this appears to be
a matter that would be determined by the reviewing authority, the U.S.
Department of Justice. As noted above, the DOJ currently has identified the
Secretary of State’s request as one for reconsideration. Additionally, the
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Defendant believes that its citizenship verification process, as submitted to
DOJ on October 14, 2008, is authorized under both federal and state law.
Nevertheless, based on DOJ’s initial objection, Defendant has sought
reconsideration. In connection with that request, Defendant has submitted a
proposed revised voter verification process, including verification of
citizenship status.2 Defendant’s intent in submitting this proposal is to
facilitate and expedite a resolution of the issues. Nothing in the regulations
precludes the Defendant from submitting this proposal as part of her request
for reconsideration. See 28 U.S.C. §§ 51.45 and 51.48 (request for
reconsideration and decision after reconsideration).
The case of Blanding v. DeBose, 454 U.S. 493 (1982), cited by
Plaintiffs in their brief, supports Defendant’s right to submit a revised voting
process with her request for reconsideration. In Blanding, the plaintiff,
Sumter County South Carolina, submitted for request for preclearance for
certain county election procedures. DOJ subsequently denied preclearance
to those procedures. Subsequently, Sumter County sent a letter to DOJ with
a revised proposed procedure. In that letter, the attorney for the county said
2 The revised voter verification process includes verification of the
applicant’s first name, last name, date of birth, drivers’ license number and
last four digits of the social security number.
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that he did not know whether this second submission should be considered a
“new” submission or a “request for reconsideration.” The Supreme Court
held that the second submission should be construed as a “request for
reconsideration.” 454 U.S. at 400.3
There appears to be a dearth of case law dealing with this issue; i.e.
whether a new proposal, when submitted after DOJ has issued an objection,
must be submitted as a “new” submission or whether it can be submitted as
part of a “request for reconsideration.” As a practical matter, it makes far
more sense to treat Defendant’s proposal as part of its “request for
reconsideration” rather than a “new” submission. After all, the purpose of
the proposal is to address concerns raised in the objection. It seems only
logical for any proposed revisions to be considered in the same submission
rather than a new submission. Additionally, this should allow DOJ to
complete its review in the most expeditious manner.
It makes no sense for this Court to attempt to fashion some judicial
remedy when DOJ has not yet made its final determination regarding the
Section 5 preclearance issue. “Article III courts should not make decisions
3 The impact had the Court ruled the other way in Blanding would
have been that Sumter County’s second proposal would have been
precleared because DOJ had failed to respond to the second proposal with
the 60-day deadline.
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unless they have to.” Treasury Employees Union v. United States, 101 F.3d
1423, 1431 (D.C.Cir.1996). This is “the usually unspoken element of the
rationale underlying the ripeness doctrine: If we do not decide it now, we
may never need to.” Id. (emphasis added). At the present time, there is no
issue that is ripe for the Court’s consideration. Unless and until DOJ issues
a final decision on Defendant’s request for reconsideration, this Court should
dismiss all of Plaintiffs’ claims without prejudice.
CONCLUSION
For the reasons set forth herein above, Defendant respectfully
submits that the Court should deny Plaintiffs’ Motion for Summary
Judgment and grant Defendant’s Motion to Dismiss or in the Alternative
Motion for Summary Judgment.
Respectfully submitted,
THURBERT E. BAKER 033887
Attorney General
DENNIS R. DUNN 234098
Deputy Attorney General
STEFAN RITTER 606950
Senior Assistant Attorney General
/s/Julia B. Anderson___________
JULIA B. ANDERSON 017560
Senior Assistant Attorney General
Attorneys for Defendant
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9
40 Capitol Square, S.W.
Atlanta, Georgia 30334-1300
(404) 463-3630
FAX (404) 657-9932
[email protected]
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I have this day electronically filed the
within and foregoing DEFENDANT’S BRIEF IN OPPOSITION TO
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND
PERMANENT INJUNCTIVE RELIEF with the Clerk of Court using the
CM/ECF system, which will send notification of such filing to all parties to
this matter via electronic notification or otherwise:
Elise Sandra Shore
Mexican American Legal Defense and
Educational Fund
34 Peachtree St. NW, Suite # 2500
Atlanta, GA 30303
[email protected]
Laughlin McDonald
Meredith Bell-Platts
ACLU VOTING RIGHTS PROJECT
230 Peachtree Street, NW
Suite 1440
Atlanta, GA 30303
[email protected]
[email protected]
Brian Spears
Law Office of Brian Spears
1126 Ponce de Leon Ave., NE
Atlanta, GA 30306
[email protected]
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Jon Greenbaum
Robert A. Kengle
Mark A. Posner
Lawyers’ Committee for Civil Rights Under Law
1401 New York Avenue, NW
Suite 400
Washington DC 20005
[email protected]
[email protected]
[email protected]
Jason S. Pielemeier
Young K. Lee
919 Third Avenue
New York, NY 10022
[email protected]
[email protected]
This 18th day of September 2009.
/s/ Julia B. Anderson
JULIA B. ANDERSON
Senior Assistant Attorney General
Page 12
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JOSE MORALES, on behalf of )
himself and those similarly situated, )
NATIONAL ASSOCIATION )
FOR THE ADVANCEMENT OF )
COLORED PEOPLE (NAACP), as an ) CIVIL ACTION NO.
organization; GEORGIA ) 1:08-CV-3172 JTC-WSD-SFB
ASSOCIATION OF LATINO )
ELECTED OFFICIALS (GALEO), ) THREE JUDGE PANEL
as an organization; and THE )
CENTER FOR PAN ASIAN )
COMMUNITY SERVICES (CPACS), )
as an organization, )
)
Plaintiffs, )
V )
)
KAREN HANDEL, in her official )
capacity as Georgia Secretary of State, )
)
Defendant. )
DEFENDANT’S RESPONSE TO PLAINTIFFS’
STATEMENT OF UNDISPUTED MATERIAL FACTS
COMES NOW, Karen Handel, Secretary of State for the State of
Georgia, and by and through her counsel of record, Thurbert E. Baker, the
Attorney General for the State of Georgia, and pursuant to Fed.R.Civ.P. 56
and Rule 56.1 B (2)(a) of the Local Rules for the Northern District of
Georgia, files her Statement of Material Facts as to Which There is No
Genuine Issue to be Tried.
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General Objection
As a preliminary response to Plaintiffs’ Statement of Undisputed
Material Facts, Defendant objects on the grounds that Plaintiffs have failed
to comply with Rule 56.1 B (1) of the Local Rules for the Northern District
of Georgia. Plaintiffs’ statements are not concise and are argumentative.
Furthermore, Defendants object to the fact that Plaintiffs failed to cite to the
required evidence in support of their factual assertions. For example, in
support of the factual assertions contained in Paragraph 1 of Plaintiffs’
Statement of Undisputed Material Facts, Plaintiffs rely on “State of
Georgia’s Section 5 Submission Letter,” a fifteen-page letter, without
providing any specific page reference, and “Defendant’s Answers and
Objections to Plaintiffs’ First Set of Interrogatories,” without citing any
specific interrogatory response. This type of citation is repeated throughout
Plaintiffs’ Statement of Undisputed Material Facts.
Response
Nevertheless, recognizing that the Court’s local rules require
Defendant to provide “concise nonargumentative responses,” Defendant
responds to Plaintiffs’ Statement of Undisputed Material Facts as follows:
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3
1.
Admitted.
2.
Admitted.
3.
Admitted.
4.
Admitted. See also Defendant’s Statement of Material Facts, ¶ 2 and
Defendant’s Exhibit 2.
5.
Admitted. See also Defendant’s Statement of Material Facts, ¶ 3 and
Defendant’s Exhibit 3.
6.
Admitted.
7.
Defendant admits the allegations contained in the first two sentences
contained in Paragraph 7 of Plaintiffs’ Statement of Undisputed Material
Facts. Defendant denies the allegations contained in the last sentence of
Paragraph 7 of Plaintiffs’ Statement of Undisputed Material Facts as alleged
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4
and based on the fact that Plaintiffs failed to cite to any evidence in support
of the allegations contained in this sentence.
Defendant admits that prior to the 2008 presidential election, persons
who were flagged as non-citizens were being required by county registrars
to present evidence of citizenship. However, Defendant denies that this
practice began in early 2007, as implied by Plaintiffs in this Paragraph.
Plaintiffs have offered no evidence in support of this allegation. To
Defendant’s knowledge, the requirement that an applicant provide evidence
of citizenship if the data match between the statewide voter registration
database and the Department of Drivers’ Services database resulted in a
non-match did not begin until much later. See Plaintiffs’ Exhibits 6
through 9.
8.
Defendant admits that Plaintiffs’ Exhibit 6 is an accurate copy of
Michael E. McCarthy’s January 14, 2008, memorandum to county
registrars. The content of the memorandum speaks for itself.
9.
Defendant admits that Plaintiffs’ Exhibit 7 is an accurate copy of
Wesley B. Tailor’s August 20, 2008 memorandum to county election
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5
officials and that the quotation contained in this paragraph of Plaintiffs’
Statement of Plaintiffs’ Statement of Undisputed Facts is accurate.
10.
Defendant admits that Plaintiffs’ Exhibit 8 is an accurate copy of
Wesley B. Tailor’s September 12, 2008 memorandum to county election
officials. The content of the memorandum speaks for itself.
11.
Defendant admits that Plaintiffs’ Exhibit 9 is an accurate copy of
Wesley B. Tailor’s September 24, 2008 memorandum to county election
officials. The content of the memorandum speaks for itself.
12.
Defendant admits that Plaintiffs’ Exhibit 9 is an accurate copy of
Wesley B. Tailor’s September 24, 2008 memorandum to county election
officials and that Plaintiffs have accurately quoted therefrom. The content
of the memorandum speaks for itself.
13.
In response to Paragraph No. 13 of Plaintiffs’ Statement of
Undisputed Material Facts, Defendant admits that prior to this Court’s
October 27, 2008 Order, county registrars “us[ed] differing procedures.”
However, Defendant denies that the fact that different county registrars may
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6
have used different procedures to verify citizenship proves that there was
any deficiency or any discrimination in the Defendant’s citizenship
verification process.
14.
Admitted.
15.
Defendant admits the allegations in the first and third sentences of
Paragraph 15 of Plaintiffs’ Statement of Undisputed Material Facts.
Defendant denies the remaining allegations contained in Paragraph 15 of
Plaintiffs’ Statement of Undisputed Facts, as pled.
By way of further response, Defendant states that the record shows
that Cherokee County first sent a letter to Plaintiff Morales regarding his
registration on September 19, 2008. See Declaration of Janet Munda, ¶ 7.
See also copy of September 19, 2008 letter attached thereto. (Defendant’s
Exhibit 5). In this letter, Cherokee County asked Mr. Morales to provide a
legible copy of his citizenship papers or birth certificate. The letter also
advised that failure to respond would result in the scheduling of a hearing.
16.
In response to Paragraph 16 of Plaintiffs’ Statement of Undisputed
Material Fact, Defendant admits that on September 26, 2008, Plaintiff drove
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7
to the Cherokee County Elections office and presented his passport and
naturalization certificate. Munda Decl., 8. See also September 19, 2008
letter, which bears a handwritten notation “Received Passport & Nat. Cert.”
(Defendant’s Exhibit 5).
The Cherokee County Board of Elections sent a second letter to Mr.
Morales on September 26, 2008, the same date he appeared in the office,
because that office was concerned about making sure that every applicant
had the opportunity to resolve any issues regarding their qualifications to
vote prior to the election. Munda Decl., ¶ 9. Defendant admits that
approximately one week later, Mr. Morales received his voter registration
precinct card in the mail. Defendant denies the remaining allegations
contained in Paragraph 16 of Plaintiffs’ Statement of Undisputed Material
Facts as pled.
17.
Defendant denies the allegations contained in Paragraph 17 of the
Plaintiffs’ Statement of Undisputed Material Facts as pled. Defendant
submits and believes that the certified letter Plaintiff describes in Paragraph
17 is the September 26, 2008, letter described by Defendant in Paragraph 16
herein above. By the time that letter was sent, Plaintiff had already
received his voter registration precinct card and been advised by the
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Cherokee County election office that he was registered to vote. Munda
Decl., ¶¶ 8 and 9.
In any event, on October 10, 2008, the Cherokee County Board of
Elections sent another letter to Mr. Morales advising him that he would be
permitted to vote in the November 2008 presidential election. Plaintiffs’
Exhibit 11. Thus, within days after October 10, 2008, any question
regarding Mr. Morales’ eligibility to vote during the November 2008
election was resolved. Id.
18.
Defendant admits that Plaintiffs’ Exhibit 12 is an accurate copy of the
October 8, 2008, letter sent by the chief of the Voting Section at the United
States Department of Justice (“DOJ) to the Attorney General of Georgia
and that Plaintiffs have accurately quoted therefrom. The content of the
letter speaks for itself.
19.
Admitted.
20.
Admitted.
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9
21.
Defendant admits that Plaintiffs’ Exhibit 3 is an accurate copy of a
letter dated March 24, 2009, (not March 30, 2009), by the Georgia Attorney
General to DOJ responding to DOJ’s request for supplemental information
with regard to the Defendant’s Section 5 submission. Defendant admits that
it provided additional supplemental information on April 2, 2009.
22.
Admitted.
23.
Defendant admits that Plaintiffs’ Exhibit 3 is an accurate copy of
DOJ’s May 29, 2009 objection letter. The content of the letter speaks for
itself.
24.
Admitted.
25.
Defendant denies the allegations contained in Paragraph 25 of
Plaintiffs’ Statement of Undisputed Material Facts. On May 8, 2009,
counsel for Defendant produced additional documents to Plaintiffs which
show that more than seven individuals who have either registered, or
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attempted to register to vote in Georgia were not citizens of the United
States. Defendant’s Exhibit 11.1 See also Declaration of Julia B. Anderson.
26.
Defendant admits that Plaintiffs’ Exhibit 17 is an accurate copy of the
Georgia Attorney General’s August 12, 2009, letter to DOJ requesting
reconsideration of DOJ’s May 29, 2009, objection to the citizenship
verification process. The content of the letter speaks for itself.
27.
Defendant admits that Plaintiffs’ Exhibit 18 is an accurate copy of
Plaintiffs’ comment letter in response to Defendant’s August 28, 2009
request for reconsideration.
28.
Admitted.
1 See also Defendant’s Exhibit 1. In the first paragraph of its
Statement of Material Facts as to which there is No Genuine Issue to be
Tried, Defendant said: “Since 2005, the Secretary of State has removed at
least 25 individuals from the list of eligible voters because they were not
U.S. citizens.” Defendant acknowledges that it miscounted the number of
individuals identified in Defendant’s Exhibit 1. Based on its re-review of
Defendant’s Exhibit 1, the Secretary of State has been advised of at least
sixteen (16) individuals who are not U.S. citizens but who have attempted
to or actually voted in Georgia elections.
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Respectfully submitted,
THURBERT E. BAKER 033887
Attorney General
DENNIS R. DUNN 234098
Deputy Attorney General
STEFAN RITTER 606950
Senior Assistant Attorney General
/s/Julia B. Anderson___________
JULIA B. ANDERSON 017560
Senior Assistant Attorney General
Attorneys for Defendant
40 Capitol Square, S.W.
Atlanta, Georgia 30334-1300
(404) 463-3630
FAX (404) 657-9932
[email protected]
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I have this day electronically filed the
within and foregoing DEFENDANT’S RESPONSE TO PLAINTIFFS’
STATEMENT OF UNDISPUTED MATERIAL FACTS with the Clerk
of Court using the CM/ECF system, which will send notification of such
filing to all parties to this matter via electronic notification or otherwise:
Elise Sandra Shore
Mexican American Legal Defense and
Educational Fund
34 Peachtree St. NW, Suite # 2500
Atlanta, GA 30303
[email protected]
Laughlin McDonald
Meredith Bell-Platts
ACLU VOTING RIGHTS PROJECT
230 Peachtree Street, NW
Suite 1440
Atlanta, GA 30303
[email protected]
[email protected]
Brian Spears
Law Office of Brian Spears
1126 Ponce de Leon Ave., NE
Atlanta, GA 30306
[email protected]
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Jon Greenbaum
Robert A. Kengle
Mark A. Posner
Lawyers’ Committee for Civil Rights Under Law
1401 New York Avenue, NW
Suite 400
Washington DC 20005
[email protected]
[email protected]
[email protected]
Jason S. Pielemeier
Young K. Lee
919 Third Avenue
New York, NY 10022
[email protected]
[email protected]
This 18th day of September 2009.
/s/ Julia B. Anderson
JULIA B. ANDERSON
Senior Assistant Attorney General
