[EL] True the Vote Raises NVRA Claim to inspect Poll Materials in MSSEN race
Rick Hasen
rhasen at law.uci.edu
Wed Jul 2 11:12:37 PDT 2014
I've done a bit more research on this, and just posted this:
In #MSSEN, True the Vote Appears to Have Weak Statutory Argument for
Poll Book Review Request <http://electionlawblog.org/?p=62967>
Posted on July 2, 2014 11:10 am <http://electionlawblog.org/?p=62967>by
Rick Hasen <http://electionlawblog.org/?author=3>
In True the Vote's complaint
<http://www.scribd.com/doc/232166906/True-the-Vote-v-Mississippi-Complaint>,
it asks for review of the poll books (looking apparently for voters who
both voting in the Democratic primary a few weeks earlier and the
Republican primary). I agree that if the campaign (or True the Vote or
someone else) could show that more than 6,700 people voted in both
primaries, that could be grounds for a court to order a new election in
the #MSSEN Cochran-McDaniel case. (So far I have not seen public
evidence of the alleged thousands of such voters already uncovered.)
But I don't see that True the Vote's argument is likely to succeed for
examination of poll books under the NVRA (motor voter). Here is the
relevant provsion:
Section 8(i)(1) of the NVRA provides:
Each State shall maintain for at least 2 years and shall make
available for
public inspection and, where available, photocopying at a reasonable
cost, all
records concerning the implementation of programs and activities
conducted
for the purpose of ensuring the accuracy and currency of official
lists of
eligible voters, except to the extent that such records relate to a
declination to
register to vote or to the identity of a voter registration agency
through which any
particular voter is registered.
42 U.S.C. 1973gg-6(i)
Here's True the Vote's argument that poll books count under this statute:
34. Poll books---the records at issue in this case---mirror the
state's voter registration rolls. They are records "concerning the
implementation of programs and activities conducted for the purpose
of ensuring the accuracy and currency of official lists of eligible
voters." 42 U.S.C. § 1973gg-6(i)(1); see Project Vote/Voting for
Am., Inc., 682 F.3d at 335. Meanwhile, the process of reviewing
completed voter materials, such as poll books, constitutes a
"program" or "activity" evaluating voter records "for the purpose of
ensuring the accuracy and currency of official lists
of eligible voters." See Project Vote/Voting for Am., Inc. v. Long,
682 F.3d 331, 335 (4th Cir. 2012). Accordingly, the records made the
basis of this case are subject to the NVRA.
I don't see this as a strong argument. To begin with, textually, poll
books are not records of voter /registration /or "programs and
activities" for insuring the accuracy of registration; they are records
of /voting/. Further, examination of the poll books under True the
Vote's theory of double voting would not show if people were properly
/registered/; it could show that people /voted/ improperly.
Finally, the sole case that True the Vote relies on here, ironically a
/Project Vote/ case (it is ironic because Project Vote had a
relationship with ACORN, a True the Vote Satan), does not contain any
support for the idea that poll books are covered by this section of the
NVRA. The /Project Vote/ case concerned that group's attempt to examine
rejected voter registration applications. Here is the specific
discussion from the case that True the Vote cites in its complaint:
Finally, as explained above, Section 8(i)(1) of the NVRA mandates
public disclosure of voter registration activities. /Id./ §
1973gg--6(i)(1)
<https://a.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000546&cite=42USCAS1973GG-6&originationContext=document&transitionType=DocumentItem&contextData=%28sc.UserEnteredCitation%29#co_pp_2d8d0000f3311>.
It generally requires states to "make available for public
inspection and, where available, photocopying at a reasonable cost,
all records concerning the implementation of programs and activities
conducted for the purpose of ensuring the accuracy and currency of
official lists of eligible voters." /Id./ This language embodies
Congress's conviction that Americans *335 who are eligible under
law to vote have every right to exercise their franchise, a right
that must not be sacrificed to administrative chicanery, oversights,
or inefficiencies. Under the district court's interpretation, this
provision mandates disclosure of the records requested by Project Vote.
III.
A.
1
<https://a.next.westlaw.com/Document/I54af52e0b72311e1b60ab297d3d07bc5/View/FullText.html?transitionType=UniqueDocItem&contextData=%28sc.Default%29&userEnteredCitation=682+F.3d+at+335.#co_anchor_F12027908812>
We begin by considering the Commonwealth's argument that the text of
Section 8(i)(1) does not require public disclosure of completed
voter registration applications. This issue of statutory
interpretation is one that we review de novo. /United States v.
Ide,/ 624 F.3d 666, 668 (4th Cir.2010)
<https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=2023725624&pubNum=506&fi=co_pp_sp_506_668&originationContext=document&transitionType=DocumentItem&contextData=%28sc.UserEnteredCitation%29#co_pp_sp_506_668>.
The starting point for any issue of statutory interpretation is of
course the language of the statute itself. /United States v. Bly,/
510 F.3d 453, 460 (4th Cir.2007)
<https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=2014367771&pubNum=506&fi=co_pp_sp_506_460&originationContext=document&transitionType=DocumentItem&contextData=%28sc.UserEnteredCitation%29#co_pp_sp_506_460>.
"[W]hen the words of a statute are unambiguous, ... this first canon
is also the last [and] judicial inquiry is complete." /Willenbring
v. United States,/ 559 F.3d 225, 235 (4th Cir.2009)
<https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=2018292711&pubNum=506&fi=co_pp_sp_506_235&originationContext=document&transitionType=DocumentItem&contextData=%28sc.UserEnteredCitation%29#co_pp_sp_506_235>
(internal quotation marks omitted).
Appellants assert that "[t]he plain and ordinary meaning of [Section
8(i)(1) ] does not encompass voter applications, much less the
rejected applications initially sought." Appellants' Br. at 10.
Instead, they claim, the " 'programs and activities' referred to in
Section 8(i)(1) of the NVRA are programs and activities related to
the purging of voters from the list of registered voters." /Id./ at 11.
Contrary to appellants' insistence, the plain language of Section
8(i)(1) does not allow us to treat its disclosure requirement as
limited to voter removal records. As the district court concluded,
completed voter registration applications are clearly "records
concerning the implementation of programs and activities conducted
for the purpose of ensuring the accuracy and currency of official
lists of eligible voters." 42 U.S.C. § 1973gg--6(i)(1)
<https://a.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000546&cite=42USCAS1973GG-6&originationContext=document&transitionType=DocumentItem&contextData=%28sc.UserEnteredCitation%29#co_pp_2d8d0000f3311>.
First, the process of reviewing voter registration applications is a
"program" and "activity." Under Virginia law, election officials
must examine completed voter registration applications and register
applicants that possess the necessary qualifications. /See/ Va.Code
§ 24.2--417
<https://a.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000040&cite=VASTS24.2-417&originatingDoc=I54af52e0b72311e1b60ab297d3d07bc5&refType=LQ&originationContext=document&transitionType=DocumentItem&contextData=%28sc.UserEnteredCitation%29>.
This process of review is a "program" because it is carried out in
the service of a specified end---maintenance of voter rolls---and it
is an "activity" because it is a particular task and deed of
Virginia election employees.
Moreover, the "program" and "activity" of evaluating voter
registration applications is plainly "conducted for the purpose of
ensuring the accuracy and currency of official lists of eligible
voters." 42 U.S.C. § 1973gg--6(i)(1)
<https://a.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000546&cite=42USCAS1973GG-6&originationContext=document&transitionType=DocumentItem&contextData=%28sc.UserEnteredCitation%29#co_pp_2d8d0000f3311>.
It is unclear what other purpose it would serve. As the district
court reasoned, the process of reviewing voter registration
applications keeps official voter lists both "accurate"---free from
error---and "current"---most recent. /See //Project Vote,/ 752
F.Supp.2d at 706.
<https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=2023627861&pubNum=4637&fi=co_pp_sp_4637_706&originationContext=document&transitionType=DocumentItem&contextData=%28sc.UserEnteredCitation%29#co_pp_sp_4637_706>
Indeed, voter lists are not "accurate" or "current" if eligible
voters have been improperly denied registration or if ineligible
persons have been added to the rolls. /Id./
<https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=2023627861&originationContext=document&transitionType=DocumentItem&contextData=%28sc.UserEnteredCitation%29>
By registering eligible applicants and rejecting ineligible
applicants, state officials "ensure that the state is keeping a
'most recent' and errorless account of which persons are qualified
or entitled to vote within the state." /Id./
<https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=2023627861&originationContext=document&transitionType=DocumentItem&contextData=%28sc.UserEnteredCitation%29>
Accordingly, the process of assessing voter registration
applications is a "program[ ] and activit[y] conducted for the
purpose of ensuring the accuracy and currency of official lists of
eligible voters." 42 U.S.C. § 1973gg--6(i)(1)
<https://a.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000546&cite=42USCAS1973GG-6&originationContext=document&transitionType=DocumentItem&contextData=%28sc.UserEnteredCitation%29#co_pp_2d8d0000f3311>.
Furthermore, the registration applications requested by Project Vote
are clearly "records concerning the implementation *336 of" this
"program[ ] and activit[y]." /Id./
<https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=2023627861&originationContext=document&transitionType=DocumentItem&contextData=%28sc.UserEnteredCitation%29>
The requested applications are relevant to carrying out voter
registration activities because they are "the means by which an
individual provides the information necessary for the Commonwealth
to determine his eligibility to vote." /Project Vote,/ 752 F.Supp.2d
at 707.
<https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=2023627861&pubNum=4637&fi=co_pp_sp_4637_707&originationContext=document&transitionType=DocumentItem&contextData=%28sc.UserEnteredCitation%29#co_pp_sp_4637_707>
Without verification of an applicant's citizenship, age, and other
necessary information provided by registration applications, state
officials would be unable to determine whether that applicant meets
the statutory requirements for inclusion in official voting lists.
Thus, completed applications not only "concern[ ] the implementation
of" the voter registration process, but are also integral to its
execution.
Finally, "the fact that [Section 8(i)(1) ] very clearly requires
that '/all/ records' be disclosed brings voter registration
applications within its reach." /Id./ at 707--08
<https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=2023627861&originationContext=document&transitionType=DocumentItem&contextData=%28sc.UserEnteredCitation%29>
(emphasis added). As this court has recognized, "the use of the word
'all' [as a modifier] suggests an expansive meaning because 'all' is
a term of great breadth." /Nat'l Coal. for Students with
Disabilities Educ. & Legal Def. Fund v. Allen,/ 152 F.3d 283, 290
(4th Cir.1998)
<https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1998156965&pubNum=506&fi=co_pp_sp_506_290&originationContext=document&transitionType=DocumentItem&contextData=%28sc.UserEnteredCitation%29#co_pp_sp_506_290>.
Given that the phrase "all records concerning the implementation of
programs and activities conducted for the purpose of ensuring the
accuracy and currency of official lists of eligible voters"
unmistakably encompasses completed voter registration applications,
such applications fall within Section 8(i)(1)'s general disclosure
mandate.
Perhaps True the Vote will have stronger arguments as they brief this
case. But so far this appears weak to me.
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<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D62967&title=In%20%23MSSEN%2C%20True%20the%20Vote%20Appears%20to%20Have%20Weak%20Statutory%20Argument%20for%20Poll%20Book%20Review%20Request&description=>
Posted in campaigns <http://electionlawblog.org/?cat=59>, NVRA (motor
voter) <http://electionlawblog.org/?cat=33>, The Voting Wars
<http://electionlawblog.org/?cat=60>
On 7/2/14, 8:24 AM, Rick Hasen wrote:
> Isn't it clear since at least U.S. v. Classic that federal election
> laws extend to congressional primaries? (The issue in the KS/AZ case
> is very different---congressional power to set the "manner" of
> congressional elections when the state says that this manner
> interferes with its own power to set voter "qualifications").
> On its face, though, the public disclosure provision does not seem to
> involve disclosure of poll books. Poll books do not appear to be
> "records" of "voter registration activities" or records "concerning
> the implemetnation of programs and activites conducted for the purpose
> of ensuring the accuracy and currency of" voter lists."
> But I haven't looked at either the legislative history or any
> interpretation of this statute in other cases.
>
>
> On 7/2/14, 6:37 AM, Michael P McDonald wrote:
>> Interesting claim to access for a primary run off election. An issue
>> in the KS and AZ litigation over the national voter reg citizenship
>> dispute is whether the national standards apply to a state election.
>> I can see an argument from that situation that NVRA does not apply to
>> anything other than a federal general election. If True the Vote
>> prevails they could set a precedent that they may not agree with down
>> the road by further nationalizing elections.
>>
>> Sent from my iPhone
>>
>> On Jul 2, 2014, at 8:40 AM, "Thessalia Merivaki" <merivali at ufl.edu
>> <mailto:merivali at ufl.edu>> wrote:
>>
>>> Here is the public disclosure provision of the NVRA, which follows
>>> the provisions regarding voter removal programs and removing names
>>> from voting rolls:
>>>
>>> "§ 1973gg--6. Requirements with respect to administration of voter
>>> registration
>>> (i) Public disclosure of voter registration activities
>>> (1) Each State shall maintain for at least 2 years and shall make
>>> available for _public inspection _and, where available, photocopying
>>> at a reasonable cost, all records concerning the implementation of
>>> programs and activities conducted for the purpose of ensuring the
>>> accuracy and currency of official lists of eligible voters, except
>>> to the extent that such records relate to a declination to register
>>> to vote or to the identity of a voter registration agency through
>>> which any particular voter is registered.
>>> (2) The records maintained pursuant to paragraph (1) shall include
>>> lists of the names and addresses of all persons to whom notices
>>> described in subsection (d)(2) of this section are sent, and
>>> information concerning whether or not each
>>> such person has responded to the notice as of the date that
>>> inspection of the records is made."
>>>
>>>
>>> On Tue, Jul 1, 2014 at 6:20 PM, Rick Hasen <rhasen at law.uci.edu
>>> <mailto:rhasen at law.uci.edu>> wrote:
>>>
>>> http://electionlawblog.org/?p=62937
>>>
>>> Anyone who knows about these provisions of the NVRA care to
>>> opine on the strength of the complaint
>>> <http://www.scribd.com/doc/232166906/True-the-Vote-v-Mississippi-Complaint>?
>>>
>>>
>>> --
>>> Rick Hasen
>>> Chancellor's Professor of Law and Political Science
>>> UC Irvine School of Law
>>> 401 E. Peltason Dr., Suite 1000
>>> Irvine, CA 92697-8000
>>> 949.824.3072 - office
>>> 949.824.0495 - fax
>>> rhasen at law.uci.edu <mailto:rhasen at law.uci.edu>
>>> http://www.law.uci.edu/faculty/full-time/hasen/
>>> http://electionlawblog.org
>>>
>>>
>>> _______________________________________________
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>
> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000
> 949.824.3072 - office
> 949.824.0495 - fax
> rhasen at law.uci.edu
> http://www.law.uci.edu/faculty/full-time/hasen/
> http://electionlawblog.org
>
>
> _______________________________________________
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--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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