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THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STATE OF TEXAS,
Plaintiff
vs.
ERIC H. HOLDER, JR.,
in His Official Capacity as Attorney
General of the United States,
Defendant.
Case No. 1:12-CV-00128
(RMC, DST, RLW)
Three-Judge Court
REPLY IN SUPPORT OF MOTION TO COMPEL
Plaintiff the State of Texas files this Reply in support of its Motion to
Compel the United States to respond to its discovery requests for data,
documents, and information maintained by federal executive branch
agencies. The central contention of the United States’ response in opposition
is that the relevant federal agencies are not parties to the litigation. This
contention is neither relevant nor responsive to the State’s argument because
the relief Texas seeks does not depend on the party status of federal agencies.
Texas’s motion to compel is based on the fact that the Attorney General has
control over information in the hands of federal agencies because this
litigation is conducted on behalf of the United States, not the Attorney
General or the Department of Justice. Discovery subpoenas under Rule 45
are not necessary because the Attorney General has the legal authority to
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obtain the requested documents and information. The Motion to Compel
should be granted.
A. The Attorney General Is Not the “Statutory Defendant” Under
Section 5, Nor Is He the Only Party to this Declaratory
Judgment Action.
The United States maintains that “the Attorney General is the only
proper defendant that can be sued in any lawsuit seeking a declaratory
judgment under Section 5 of the Voting Rights Act.” Response at 5; cf. id. at
7 (contending that the Attorney General is “the only necessary statutory
defendant”). This position appears to rest on the contention that the
Attorney General is the “statutory defendant” under Section 5. See id. at 10
(citing 42 U.S.C. § 1973c). The United States provides no authority to
support its position, and none appears in the Voting Rights Act.
In fact, the Voting Rights Act clearly states that the Attorney
General’s enforcement authority is conferred by Congress and exercised on
behalf of the United States. See, e.g., 42 U.S.C. § 1973j(d) (“Whenever any
person has engaged or there are reasonable grounds to believe that any
person is about to engage in any act or practice prohibited by section 1973,
1973a, 1973b, 1973c, 1973e, 1973h, 1973i, or subsection (b) of this section, the
Attorney General may institute for the United States, or in the name of the
United States, an action for preventive relief . . . .”); 42 U.S.C. § 1973aa-2
(providing that the Attorney General “may institute for the United States, or
in the name of the United States, an action in a district court of the United
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States . . . for a restraining order, a preliminary or permanent injunction, or
such other order as he deems appropriate”). Moreover, the Voting Rights Act
expressly contemplates that the United States will be a party to enforcement
litigation. See 42 U.S.C. § 1973l(e) (providing that the court “may allow the
prevailing party, other than the United States, a reasonable attorney’s fee”).
Indeed, the Department of Justice does not deny that its own filings and
statements in this case referred to the United States as the defendant until
acknowledging that basic fact became inconvenient to the Department’s
efforts to block discovery. See Memorandum in Support of Motion to Compel
(Doc. 130-1) at 9–10.
The only role prescribed for the Attorney General by Section 5 is
administrative preclearance review. See 42 U.S.C. § 1973c (providing for
administrative review by the Attorney General as an alternative to a
declaratory judgment action). By seeking administrative preclearance, Texas
sought the only remedy that the Attorney General can provide. The Attorney
General’s refusal to provide relief is not reviewable in this Court. See, e.g.,
Morris v. Gressette, 432 U.S. 491, 504–05 (1977); County Council v. United
States, 555 F. Supp. 694, 706 (D.D.C. 1983) (three-judge court) (“[T]his
Court’s role under Section 5 of the Act is to examine the change de novo as an
alternative to the Attorney General’s decision regarding preclearance.”).
Having failed to secure administrative relief from the Attorney
General, Texas seeks a declaratory judgment that its law does not violate
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Section 5 of the Voting Rights Act. This declaratory judgment action does not
seek a remedy from the Attorney General or the Department of Justice; it
seeks a judgment from this Court. That judgment will not operate only
against the Attorney General or the Department of Justice. It will bind the
entire United States government.
B. Texas Does Not Contend that Federal Agencies Are Parties to
this Litigation; It Contends that the United States Is a Party.
The United States urges the Court to reject the “unprecedented
argument that every agency of the executive branch is a party to any lawsuit
against the Attorney General.” Response at 6. The United States
misunderstands and misrepresents the State’s position. Texas does not
contend “that the Attorney General is acting in this litigation as an agent of
any federal agency other than the Department of Justice,” or that a
declaratory judgment will “operate against” any specific federal agency. Id.
Nor does Texas contend that any specific federal agency is a party to this
litigation. The Attorney General is sued as an agent of the United States, not
the Department of Justice, and not any specific executive branch agency. A
declaratory judgment for the State of Texas will operate against the United
States. The United States is a party to this litigation.
Because this litigation is conducted on behalf of the United States,
there is no basis for the Department of Justice’s insistence that Texas serve
discovery subpoenas on executive branch agencies. Subpoenas are not
necessary. The Department of Justice has the authority to obtain the
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requested information without the procedures outlined in each agency’s
Touhy regulations, as the Touhy regulations themselves indicate. See, e.g.,
20 C.F.R. § 403.115(b)(3) (“This part does not apply to requests for testimony
[by the Social Security Administration] . . . [f]rom the United States
Department of Justice.”); 22 C.F.R. § 172.1(h) (“Nothing in this part affects
the disclosure of official information [by the State Department] to other
federal agencies or Department of Justice attorneys in connection with
litigation conducted on behalf or in defense of the United States . . . .”); 32
C.F.R. § 97.2(b)(3) (“This directive does not apply to the release of official
information or testimony by DoD personnel . . . [i]n response to requests by
Federal Government counsel in litigation conducted on behalf of the United
States.”); 38 C.F.R. § 14.801(b)(2)(i) (“Sections 14.800 through 14.810 do not
apply to . . . [l]egal proceedings in which the Department of Veterans Affairs,
the Secretary of Veterans Affairs or the United States is a party, is
represented or has a direct and substantial interest.”). The United States’
insistence that Texas comply with these regulations is unwarranted and
appears calculated to maximize the burden on the State of Texas, create the
appearance of complexity where none exists, and delay the production of
admittedly relevant information from federal agencies. The only obstacle to
the efficient production of the information sought by Texas is the Department
of Justice’s failure to request it.
C. Texas’s Requests for Information on Disability Status Are
Neither Overbroad Nor Irrelevant.
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The United States alleges that requests to produce information on
Texans with a qualifying disability from the Social Security Administration
or the Department of Veterans Affairs is “overbroad and irrelevant, because
disability status is only applicable to S.B. 14’s disability exemption if the
voter also lacks all allowable identification documents.” Response at 14. The
State’s requests are neither overbroad nor irrelevant. SB 14’s photographic
identification requirement will not impact individuals with a qualifying
disability because lack of identification will not prevent them from voting
(even if they choose not to vote by mail). These objections are unfounded and
do not justify the United States’ failure to provide responsive data and
documents.
D. Potential Inaccuracies in Passport Data Do Not Justify the
United States’ Failure to Respond to Discovery Requests.
The United States admits that there exist records showing the mailing
address of every person who holds a United States passport. It argues,
however, that it should be excused from providing these records because the
addresses may not be actual residence addresses and may be out of date. See
Response at 13–14. The fact that data may not be perfectly reliable does not
justify the United States’ complete failure to produce it. Indeed, Texas’s
warning that data from different State databases was not meant to interact
and was therefore potentially unreliable did not prevent the United States
from demanding its production.
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Furthermore, every passport application requires the applicant to give
a full social security number. See Form DS-11 Passport Application (Exh. 1)
at 1, item 5 (“social security number”). The passport database discovery
Texas seeks could therefore allow it to match passport holders to Texas
registered voters. Despite the obvious potential of this data, the United
States responds as though the only permissible identification under SB14
were State-issued identification. This is not the case, and the United States
has no basis to prevent discovery of Texans who hold federally issued
identification that satisfies SB 14.
E. There Is No Basis to Fault Texas for the Manner in Which It
Has Pursued Discovery.
The United States criticizes Texas for its alleged delay in moving to
compel and for its failure to serve discovery subpoenas on federal agencies.
Neither criticism has any foundation. Texas waited to file a motion to compel
because the Court ordered the parties not to file discovery motions until they
had conferred with the court. See Initial Scheduling Order (Doc. 43) ¶ 12.
When Texas brought the federal databases to the Court’s attention, the Court
instructed Texas to refrain from taking further steps and allow the United
States to provide further information. See, e.g., Transcript (April 30, 2012) at
30:7–17. After the United States began to provide further information, the
Court issued a series of orders that directed the United States to provide
periodic updates on its inquiries into the relevant agency databases. Given
the Court’s initial request that the parties avoid formal discovery motions
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and the subsequent orders directing the United States to file progress
reports, Texas justifiably sought to follow the Court’s instructions and
complied by not filing a motion to compel. In any event, when the State was
left with no choice but to file a motion to compel, it did so well within the
discovery period. Absent the United States’ apparent determination to delay
or circumvent the State’s discovery requests, the United States could have
easily produced the requested information in time to be used at trial.
With respect to the complaint that Texas did not serve discovery
subpoenas, the Department of Justice comes to the Court with unclean
hands. Indeed, beginning in late March, Texas advised the Department of
Justice that it must serve subpoenas on non-party Texas agencies and
officials to secure documents and deposition testimony. Later, in a good-faith
effort to help ensure that the trial could proceed as scheduled on July 9,
relevant state agencies and officers—including legislators not in the
executive branch—were prevailed upon to submit to discovery without
requiring a subpoena. As a result, the United States has not served a single
discovery subpoena, either before or after Texas officials agreed to comply
voluntarily with discovery requests. In contrast to the actions of Texas
agencies and officials, the Department of Justice has not taken any steps to
comply with discovery requests that it contends must be made in compliance
with Rule 45. Although Texas’s initial insistence on formal compliance with
the Federal Rules subsequently gave way to informal compliance with
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discovery requests, the United States criticized the State’s initial position as
causing unnecessary delay. The United States’ continued insistence on strict
adherence to the rules necessarily constitutes unnecessary delay by its own
standards, particularly when its position is based on an unfounded and
immaterial distinction between the Attorney General and the United States.
CONCLUSION
For the reasons stated above and in the State’s motion and
memorandum in support, the Motion to Compel should be granted.
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Dated: May 29, 2012
Respectfully submitted.
GREG ABBOTT
Attorney General of Texas
DANIEL T. HODGE
First Assistant Attorney General
JONATHAN F. MITCHELL
Solicitor General
/s/ Patrick K. Sweeten
PATRICK K. SWEETEN
Assistant Attorney General
ADAM W. ASTON
Principal Deputy Solicitor General
ARTHUR C. D’ANDREA
Assistant Solicitor General
MATTHEW H. FREDERICK
Assistant Attorney General
209 West 14th Street
P.O. Box 12548
Austin, Texas 70711-2548
(512) 936-1695
COUNSEL FOR THE STATE OF
TEXAS
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document
is being served by CM/ECF and/or electronic mail on May 29, 2012 on the
following:
Elizabeth Stewart Westfall
Jennifer Lynn Maranzano
Daniel J. Freeman
Bruce I. Gear
Meredith E.B. Bell-Platts
U.S. DEPARTMENT OF JUSTICE
Civil Rights Division, Voting Section
950 Pennsylvania Avenue, NW
NWB-Room 7202
Washington, DC 20530
(202) 305-7766/Fax: (202) 307-3961
Email: [email protected]
Email: [email protected]
Email: [email protected]
Email: [email protected]
Email: [email protected]
Counsel for the United States
Chad W. Dunn
BRAZIL & DUNN
4201 FM 1960 West, Suite 530
Houston, TX 77068
(281) 580-6310
Email: [email protected]
J. Gerald Hebert
Attorney at Law
191 Somerville Street, #405
Alexandria, VA 22304
Telephone: 703-628-4673
Counsel for Eric Kennie, Anna Burns, Michael Montez, Penny Pope, Marc
Veasey, Jane Hamilton, David De La Fuente, Lorraine Birabil, Daniel
Clayton, and Sergio Deleon
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Ezra D. Rosenberg
Michelle Hart Yeary
DECHERT LLP
902 Carnegie Center, Suite 500
Princeton, NJ 08540
(609) 955-3200/Fax: (609) 955-3259
Email: [email protected]
Email: [email protected]
Jon M. Greenbaum
Mark A. Posner
Robert A. Kengle
LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW
1401 New York Avenue, NW, Suite 400
Washington, DC 20005
(202) 662-8325
Email: [email protected]
Email: [email protected]
Email: [email protected]
Myrna Perez
Ian Arthur Vandewalker
Wendy Robin Weiser
THE BRENNAN CENTER FOR JUSTICE AT NYU LAW SCHOOL
161 Avenue of the Americas, Floor 12
New York, NY 10013-1205
(646) 292-8329/Fax: (212)463-7308
Email: [email protected]
Email: [email protected]
Email: [email protected]
Robert Stephen Notzon
1507 Nueces Street
Austin, TX 78701-1501
(512) 474-7563
Fax: (512) 852-4788
Email: [email protected]
Victor L. Goode
NAACP National Headquarters
4805 Mt. Hope Dr.
Baltimore, Maryland 21215-3297
(410) 580-5120
Email: [email protected]
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Jose Garza
Law Office of Jose Garza
7414 Robin Rest Dr.
San Antonio, Texas 98209
(210) 392-2856 (phone)
Email: [email protected]
Gary L Bledsoe
Law Office of Gary L. Bledsoe and Associates
316 West 12th Street, Suite 307
Austin, Texas 78701
(512) 322-9992
Email: [email protected]
Counsel for Texas State Conference of NAACP Branches, Mexican American
Legislative Caucus of the Texas House of Representatives
Douglas H. Flaum
Michael B. de Leeuw
Adam Harris
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP
One New York Plaza
New York, New York 10004-1980
(212) 859-8000
Email: [email protected]
Email: [email protected]
Email: [email protected]
Ryan Haygood
Natasha M. Korgaonkar
Leah C. Aden
Dale E. Ho
Debo P. Adegbile
Elise C. Boddie
NAACP Legal Defense and Educational Fund, Inc.
99 Hudson Street, Suite 1600
New York, New York 10013
(212) 965-2200
(212) 226-7592
Email: [email protected]
Email: [email protected]
Email: [email protected]
Email: [email protected]
Email: [email protected]
Email: [email protected]
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Counsel for Texas League of Young Voters Education Fund, Imani Clark,
KiEssence Culbreath, Demariano Hill, Felicia Johnson, Dominique Monday,
and Brianna Williams
John Kent Tanner
3743 Military Road, NW
Washington, DC 20015
(202) 503-7696
Email: [email protected]
Nancy Abudu
Katie O’Connor
Laughlin McDonald
AMERICAN CIVIL LIBERTIES UNION FOUNDATION INC
230 Peachtree Street NW, Suite 1440
Atlanta, GA 30303
(404) 523-2721
Email: [email protected]
Email: [email protected]
Email: [email protected]
Arthur B. Spitzer
American Civil Liberties Union of the Nation’s Capital
4301 Connecticut Avenue, N.W., Suite 434
Washington, D.C. 20008
(202) 457-0800
Email: [email protected]
Lisa Graybill
Rebecca Robertson
American Civil Liberties Union Foundation of Texas
1500 McGowan Street
Houston, Texas 77004
(713) 942-8146
Email: [email protected]
Email: [email protected]
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Penda Hair
Kumiki Gibson
Advancement Project
1220 L Street, NW, Suite 850
Washington, DC 20005
(202) 728-9557
Email: [email protected]
Email: [email protected]
Counsel for Justice Seekers, League of Women Voters of Texas, Texas
Legislature Black Caucus, Donald Wright, Peter Johnson, Ronald Wright,
Southwest Workers Union and La Union Del Pueblo Entero
Nina Perales
Amy Pedersen
MEXICAN AMERICAN LEGAL DEFENSE & EDUCATIONAL FUND, INC.
110 Broadway, Suite 300
San Antonio, TX 78205
(210) 224-5476
Email: [email protected]
Email: [email protected]
Counsel for Mi Familia Vota Education Fund, Southwest Voter Registration
Education Project, Nicole Rodriguez, Victoria Rodriguez
/s/ Patrick K. Sweeten
PATRICK K. SWEETEN
Assistant Attorney General
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