[EL] True the Vote Raises NVRA Claim to inspect Poll Materials in MSSEN race

Wed Jul 2 18:54:57 PDT 2014

The nexus between the poll books and the NVRA claim could be the NVRA
provision that participation in a federal primary election protects one
against a purge for non-voting.  That argument is not related to the issue
of the validity of the election (as opposed to a Section 8 compliance
claim), but one that could, I suppose, provide evidence.

Or am I missing something (not having read the statue in a while)?

On Wed, Jul 2, 2014 at 2:12 PM, Rick Hasen <rhasen at law.uci.edu> wrote:

>  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.
>   [image: Share]
> <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> 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> 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 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://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 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://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 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://www.law.uci.edu/faculty/full-time/hasen/http://electionlawblog.org
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