JUDGE JOHN W. deGRAVELLES, UNITED STATES DISTRICT COURT, MIDDLE DISTRICT OF LOUISIANA.
As his second term neared its end, Thomas Jefferson wrote: "[T]hat government... [is] the strongest of which every man feels himself a part."
On April 19, 2011, pursuant to Section 1983 of the United State Code's forty-second
Based on this same law and many of the same circumstances, this case began on July 12, 2011, with the filing of the Complaint by the United States of America ("US," "United States," "Government," or "Plaintiff") pursuant to § 20510(a). At present, four issues must be resolved by this Court: (1) the relevance of the Scott Matter, including the Fifth Circuit's partial affirmation; (2) the NVRA's reach over transactions at voter registration agencies ("VRAs") that take place by phone, email, or online ("remote transactions"); (3) the minimal legal standard for compliance with this voting rights statute; and (4) whether the Defendants have run afoul of the NVRA and, if so, which remedy is most appropriate based on the evidence so far uncovered. In other words, jurisdictional and statutory questions have been squarely presented, even as many facts remain disputed.
Defendants and Plaintiff (collectively, "Parties") have filed the six dispositive motions now before this Court: (1) the Motion for Partial Summary Judgment ("Schedler's MSJ"), (Doc. 336), filed by J. Thomas Schedler, the Louisiana Secretary of State and a defendant ("Schedler" or "SOS"); (2) the Motion to Dismiss Based on Res Judicata, Collateral Estoppel or Mootness ("DCFS' MTD), (Doc. 340), tendered by two defendants, the Louisiana Department of Children and Family Services ("DCFS") and the Louisiana Department of Health and Hospitals ("DHH");
Each of these six motions has engendered distinct yet interrelated replies and responses. To Schedler's MSJ, the US has responded with the Memorandum in Opposition to Motion for Partial Summary Judgment ("US' Opposition to Schedler's MSJ"), (Doc. 382), to which Schedler has replied with the Memorandum in Reply to Memorandum in Opposition to Motion for Partial Summary Judgment ("Schedler's MSJ Reply"), (Doc. 395). After the US submitted its Surreply Brief in Support of its Opposition to Defendant Schedler's Motion for Partial Summary Judgment ("US' Surreply to Schedler's Reply"), (Doc. 420), Schedler was allowed to file the Sur-Sur Reply to United States Surreply Submitted and Attached to Doc 411 ("Schedler's Surreply"), (Doc. 423).
The US has countered DCFS' MTD with the Memorandum in Opposition to Motion to Dismiss Based on Res Judicata, Collateral Estoppel or Mootness ("US' Opposition to DCFS' MTD"), (Doc. 385); DCFS and DHH responded with the Reply to Opposition to Motion to Dismiss ("DCFS' Reply"), (Doc. 407).
LA's First MTD spawned its own series of filings, including the US' Response Brief in Opposition to the State of Louisiana's Motion to Dismiss Pursuant to Rule 12(b)(1) ("US' Opposition to LA's First MTD"), (Doc. 384), and Defendant State of Louisiana's Reply in Support of Its Motion to Dismiss Pursuant to Rule 12(b)(1) ("LA's First Reply"), (Doc. 409).
Schedler's MTD was opposed by the United States' Memorandum in Opposition to SOS's Motion to Dismiss ("US' Opposition to Schedler's MTD"). (Doc. 388.) DCFS and DHH joined the opposition via the Response to Defendant Schedler's Motion to Dismiss for Lack of Subject Matter Jurisdiction ("DCFS' Joinder Response"), (Doc. 389), defended by Schedler's Reply Memorandum to United States' Opposition to Schedler's Motion to Dismiss as Moot ("Schedler's MTD Reply"), (Doc. 415).
LA's Second MTD is supported by the Defendant State of Louisiana's Reply in Support of Its Motion to Dismiss Pursuant to Rule 12(c) ("LA's Second Reply), (Doc. 414), and opposed by the United States' Memorandum in Opposition to the State of Louisiana's Motion to Dismiss Pursuant to Rule 12(c) ("US' Opposition to LA's Second MTD"), (Doc. 394).
The US' MSJ, supported by numerous exhibits, (Docs. 347-56), elicited DHH's Opposition to USA's Motion for Summary Judgment ("DHH's First Opposition to US' MSJ"),
Having waded through these papers, and considered the oral argument made by the Parties on May 17, 2016, this Court reaches four conclusions based on existing jurisprudence. First, neither preclusion nor mootness prevent the United States from maintaining this suit against the Defendants. While the Scott Court determined much, it did not decisively establish Defendants' requisite compliance with the NVRA and thus absolve them of liability for pre- and post-Scott violations.
Second, as the NVRA not only passes constitutional muster but also lodges responsibility for conformity with its dictates onto forty-four (44)
Third, in accordance with well-established principles of statutory construction, the NVRA must be read to encompass remote transactions. As Defendants insist, its structure arguably creates a modicum of ambiguity. But a rigorously contextual analysis, wedded to basic semantic and syntactic canons and informed by this law's obvious purposes, renders any other construction unconvincing. Once properly derived, therefore, the NVRA's plain and unambiguous meaning reveals that its ambit extends to transactions done remotely. Defendants look for comfort in a brief excerpt from a congressional report, but no court and no party may so tinker with a statute's enacted text. This Court will honor the statute's plain meaning.
Fourth, in weighing the merits of a motion for summary judgment, because this Court must disregard all evidence favorable to the moving party that a reasonable jury is not required to believe, two ostensibly discordant conclusions follow. First, this Court cannot conclude with absolute certainty that the US' requested remedy — perpetual monitoring of a sovereign state — is proper. Factual issues regarding the nature and extent of the violations remain, issues which are relevant to the proper remedy. Though the US has requested this recognized and occasionally awarded form of relief, when both a fundamental right and a sovereign's liability for its contravention clash, a court must tread
For these reasons, as more fully explained below, this Court DENIES Defendants' Dispositive Motions and GRANTS IN PART and DENIES IN PART the US' MSJ.
Plaintiff is the United States, suing to enforce the NVRA's statutory guarantees. (Doc. 1 ¶ 4 at 2; Doc. 2 at 1; Doc. 37 at 1; Doc. 38 at 1-3) In particular, "[t]he United States' Complaint seeks declaratory and injunctive relief to remedy Louisiana's previous and ongoing noncompliance with Section 7, and also ensure the state's future compliance with Section 7." (Doc. 38 at 3; accord Doc. 1 ¶ 1 at 1, ¶¶ 15-25 at 4-8.) There are six Defendants: (1) LA, a state allegedly subject to the NVRA; (2) Schedler, being sued in his official capacity as the chief election official responsible for coordinating LA's statutory obligations under the NVRA; (3) DHH, which bears responsibility for the administration of a variety of public assistance and disability programs arguably subject to § 20506(a)(2) and (a)(3); (4) Mr. Bruce D. Greenstein ("Greenstein"), seemingly sued in his official capacity as DHH's former Secretary;
The United States Constitution provides: "The Times, Places and Manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the place of chusing [sic] Senators" ("Elections Clause"). U.S. CONST. art. I, § 4, cl. 1; Ariz. State Legis. v. Ariz. Indep. Redistricting Comm'n, ___ U.S. ___, 135 S.Ct. 2652, 2659, 192 L.Ed.2d 704, 716 (2015);
With the Elections Clause so construed, the Necessary and Proper Clause
Passed pursuant to these two constitutional provisions,
The NVRA's obvious and well-known purposes appear in its bare text. See Miller v. Amusement Enters., Inc., 394 F.2d 342, 350 (5th Cir.1968), cited in, e.g., United States v. DuBose, 598 F.3d 726, 731 (11th Cir.2010). To justify its requirements, Congress made three findings: "(1) "the right of citizens of the United States to vote is a fundamental right; (2) it is the duty of the Federal, State, and local governments to promote the exercise of that right; and (3) discriminatory and unfair registration laws and procedures can have a direct and damaging effect on voter participation in elections for Federal office and disproportionately harm voter participation by various groups, including racial minorities." 52 U.S.C. § 20501(a)(1)-(3); see also, e.g., Valdez v. Herrera, No. 09-668 JCH/DJS, 2010 WL 6231194, 2010 U.S. Dist. LEXIS 142209, at *22-23 (D.N.M. Dec. 21, 2010) ("In enacting the NVRA, Congress found that federal, state, and local governments have a duty to promote the exercise of the right to vote and it sought to mitigate discriminatory and unfair registration laws and procedures[.]" (internal quotation marks omitted)); President's Remarks on Signing the National Voter Registration Act of 1993, 29 WEEKLY COMP. PRES. DOC. 914, 915 (May 20, 1993) ("[T]he failure to register is the primary
So convinced, Congress passed the NVRA so as "to establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office," "to make it possible for Federal, State, and local governments to implement this Act in a manner that enhances the participation of eligible citizens as voters in elections for Federal office," and "to protect the integrity of the electoral process"; and "to ensure that accurate and current voter registration rolls are maintained." 52 U.S.C. § 20501(b)(1)-(4); Arcia v. Sec'y of Fla., 772 F.3d 1335, 1346 (11th Cir.2014); see also Robert A. Kengle, To Accept or To Reject: Arizona v. Intertribal Council of Arizona, the Elections Clause, and the National Voter Registration Act of 1993, 57 HOW. L.J. 759, 769 (2014).
As adopted and construed, the NVRA hence seeks to accomplish two general goals. In certain respects, the NVRA strives to "protect the integrity of the electoral process." Nearman v. Rosenblum, 358 Or. 818, 823, 371 P.3d 1186 (2016); accord Gonzalez v. Ariz., 677 F.3d 383, 403 (9th Cir.2012). Yet, its "primary emphasis" has always been to simplify the methods for registering to vote in federal elections and maximize such opportunities for a state's every citizen. Colón-Marrero v. Vélez, 813 F.3d 1, 9 n. 13 (1st Cir.2016) (relying on Young, 520 U.S. at 275, 117 S.Ct. 1228); accord Democratic Nat'l Comm. v. Republican Nat'l Comm., 673 F.3d 192, 209-10 (3d Cir.2012); cf. Nat'l Coalition for Students with Disabilities Educ. & Legal Defense Fund v. Scales, 150 F.Supp.2d 845, 854 (D.Md.2001) ("A main thrust of the legislation was for states to play a more active role in promoting the enfranchisement of eligible voter."). To Congress, a plethora of byzantine and ambiguous state registration procedures too often denied voters the chance to register with ease and convenience. S. REP. No. 103-6, at 2-3; see also Ortiz v. City of Philadelphia Office of City Comm'rs Voter Reg. Div., 28 F.3d 306, 339-40 (3d Cir. 1994) (combing the NVRA's legislative history); cf. Peyer Dreier, America's Urban Crisis: Symptoms, Causes, Solutions, 71 N.C. L. REV. 1351, 1400 (1993) ("A major reason for the low rate of urban voting is the nation's complex, crazy-quilt voter registration laws."). If only by a fraction, the NVRA was intended to ameliorate this "unfortunate" fact. Ortiz, 28 F.3d at 339.
The NVRA "prescribes three methods for registering voters for federal elections," subject to two inapposite exceptions. 52 U.S.C. § 20503; Gonzalez, 677 F.3d at 394; Broyles v. Texas, 618 F.Supp.2d 661, 690 (S.D.Tex.2009). First, pursuant to Section 5, "[e]ach State motor vehicle driver's license application (including any renewal application) submitted to the appropriate State motor vehicle authority under State law shall serve as an application for voter registration with respect to elections for Federal office unless the applicant fails to sign the voter registration application."
As a statutory matter, the two categories listed in § 20506(a)(2) are neither exclusive nor exhaustive, for each state must still "designate other" unspecified "offices within the State as voter registration agencies." 52 U.S.C. § 20506(a)(3)(A); cf. N.C. State Conf. of NAACP v. McCrory, Nos. 1:13CV658, 182 F.Supp.3d 320, 398-99, 2016 WL 1650774, at *61 (M.D.N.C. Apr. 25, 2016). These additional offices "may include [s]tate or local government offices such as public libraries, public schools, offices of city and county clerks (including marriage license bureaus), fishing and hunting license bureaus, government revenue offices, and unemployment compensation offices, and offices not described in... [§ 20506(a)(2)(B)] that provide services to persons with disabilities" and "[f]ederal and nongovernmental offices, with the agreement of such office." 52 U.S.C. § 20506(a)(3)(B)(i)-(ii); Nat'l Coalition for Students with Disabilities Educ. & Legal Defense Fund, 152 F.3d at 291. Notably, this section refers to other entities, requiring "[a]ll departments, agencies, and other entit[i]es of the executive branch of the Federal Government" to cooperate, "encourag[ing]" nongovernmental entities to do so, and setting unique procedures as to armed forces' recruitment offices. 52 U.S.C. § 20506(b)-(c).
In accordance with the NVRA, each VRA must distribute voter registration application forms for voting in federal elections, assist applicants in completing these forms, and accept completed applications for transmittal to the appropriate state official.
Section 7, meanwhile, does contain other paragraphs. Thus, in addition to the duties specified in paragraph (a)(4), each VRA must both "distribute with each application for such service or assistance, and with each recertification, renewal, or change of address form relating to such service or assistance- ... the mail voter registration application form described in"
Like many statutes, cf. 31 U.S.C. § 3730(a)-(b); Carter ex rel. United States v. Bridgepoint Educ., Inc., 305 F.R.D. 225, 230-31 (S.D.Cal.2015), the NVRA affords two coequal enforcement methods, 52 U.S.C. § 20510; see also 138 Cong. Rec. 10,736 (1992) (statement of Sen. Wendell Ford) (explaining that the language providing for a private cause of action substituted "person" for "individual" to "permit organizations as well as individuals, and the Attorney General to bring actions under the [A]ct"). A private person "aggrieved by a violation" may sue for declaratory or injunctive relief once "written notice of th[is] violation" has been provided "to the chief election official of the State involved" and a certain number of days have passed. 52 U.S.C. § 20510(b)(1)-(3); Nat'l Council of La Raza, 800 F.3d at 1035; Ass'n of Cmty. Orgs. for Reform Now v. Miller, 912 F.Supp. 976, 981 (W.D.Mich.1995). A prevailing private party may be allowed "reasonable attorney fees, including litigation expenses, and costs." 52 U.S.C. § 20510(c); Ass'n of Cmty. Orgs. for Reform Now v. Fowler, 178 F.3d 350, 363 (5th Cir.1999).
Independently, on behalf of the United States, "[t]he Attorney General may bring a civil action in an appropriate district court for such declaratory or injunctive relief as is necessary to carry out" the NVRA. 52 U.S.C. § 20510(a); Harkless, 545 F.3d at 450. The NVRA thereby "provides broad authority to the United States in ensuring compliance with the provisions of the statute." United States v. New York, 700 F.Supp.2d 186, 197 (N.D.N.Y.2010); see also United States v. New York, 255 F.Supp.2d 73, 78 (E.D.N.Y. 2003). According to one appellate court, "[t]he statute envisions the federal government predominantly will enforce the NVRA." United States v. Missouri, 535 F.3d 844, 851 (8th Cir.2008). These remedies "are in addition to all other rights and remedies provided by law." 52 U.S.C. § 20510(d)(1); Miller, 912 F.Supp. at 981.
Throughout its sections, the NVRA opts for a particular introductory formulation: "Each State shall ...." 52 U.S.C. §§ 20503(a), 20506(a) (emphasis added).
Overall, then, Congress' chosen terms lead to an inescapable textual conclusion. While some NVRA provisions "envision delegation, and do not require the states to do more than delegate," "[u]nder the plain language of the statute, states must take specific actions" and thus bear ultimate liability and final responsibility for any contrary nonaction. Missouri, 535 F.3d at 849 (emphasis added). In Louisiana, by virtue of the statute from which he derives his authority, the SOS has been classified as the official responsible for the NVRA's coordination and enforcement. See LA. R.S. §§ 18:18A(6). As surely as this state's governor, the SOS has always been an "instrumentalit[y] of the state" who has no greater power than that afforded by Louisiana's constitution and laws. LA. CONST. art. IV, §§ 1(A), 7.
"Intermittently homeless," Scott received benefits pursuant to the Supplemental Nutrition Assistance Program ("SNAP"), a hybrid federal-state program providing nutrition assistance to millions of eligible, low-income individuals and families managed by DCFS. (Doc. 436 at 5, No. 2:11-cv-00926-JTM-JCW; see also Doc. 1 ¶¶ 102-06 at 27-28, No. 2:11-cv-00926-JTM-JCW.) Scott applied for SNAP in September 2009 and December 2009 and renewed his application on November 2010 at a local DCFS office." (Doc. 436 at 5-6, No. 2:11-cv-00926-JTM-JCW; see also Doc. 1 ¶¶ 102-06 at 27-28, No. 2:11-cv-00926-JTM-JCW.)
The initial application forms submitted by Scott in 2009 did contain a section entitled "Voter Registration," which contained "the proper language under" and was generally "in compliance with" the NVRA. (Doc. 436 at 6-9, No. 2:11-cv-00926-JTM-JCW.) At least once he discussed voter registration with a DCFS-managed office. (Id.) However, the document that he submitted in November 2010 did "not contain the voter registration language as required under the NVRA," and voter registration was discussed with Scott only on his first recorded visit. (Id. at 9, No. 2:11-cv-00926-JTM-JCW; see also Doc. 1 ¶ 106 at 28.) More problematically, Scott "did not receive a voter registration form[s] [with] ... [his] benefits form[s]" (Doc. 436 at 8-9, No. 2:11-cv-00926-JTM-JCW; see also Doc. 1 ¶¶ 102-06 at 27-28, No. 2:11-cv-00926-JTM-JCW.)
On the bases of these factual findings, "Scott suffered an actionable injury during... [these] transactions with DCFS when... [its employees] failed to meet their obligation to Scott" under the NVRA. (Doc. 436 at 10, No. 2:11-cv-00926-JTM-JCW; see also Doc. 1 ¶ 106 at 28.) In sum, Scott had "been in person to ... [a] DCFS office several times and did not receive the information required under the NVRA."
(Id. at 25-26, No. 2:11-cv-00926-JTM-JCW; see also Doc. 1 ¶¶ 57-81 at 16-24, No. 2:11-cv-00926-JTM-JCW.)
The Scott Court went further. Having never interacted with Scott, DHH had nonetheless "engaged in numerous NVRA violations" prior to August 11, 2011. (Doc. 436 at 5, 20, 25, No. 2:11-cv-00926-JTM-JCW; see also Doc. 1 ¶ 56 at 16, ¶¶ 61-77 at 17-22, No. 2:11-cv-00926-JTM-JCW.) Documenting each violation, (Doc. 436 at 21-25, No. 2:11-cv-00926-JTM-JCW), the Scott Court proceeded to identify at least seven separate violations by DHH:
(Id. at 20; see also Doc. 1 ¶¶ 61-77 at 17-22, 84-97 at 24-26, No. 2:11-cv-00926-JTM-JCW.)
SOS was adjudged next. As the Scott Court concluded, SOS had provided NVRA training and materials, but had not "engage[d] in any other measures to ensure that individual public assistance offices are complying with their responsibilities under the NVRA." (Doc. 436 at 28, No. 2:11-cv-00926-JTM-JCW.) The SOS' training was found to be "inconsistent and inaccurate." (Id.) For support for this conclusion, the Scott Court emphasized three facts: (1) SOS had provided no NVRA training for DCFS employees from 2008 to the spring of 2011; (2) it had falsely informed DHH personnel "that DHH clients were only afforded an opportunity to register to vote only if ... [they] appeared in person at a DHH officer"; and (3) it did not "Advise DCFS or DHH with regard to distributing voter registration application forms to clients who did not respond to the voter declaration question." (Id.)
For all these reasons, the Scott Court entered the First Injunction. (Doc. 437, No. 2:11-cv-00926-JTM-JCW.)
In considering the SOS' appeal of the First Injunction, the Fifth Circuit left it mostly undisturbed. The panel did "dismiss Scott's claims on standing and notice grounds," and it did "vacate in part the relief that the district court granted to the Louisiana NAACP." Scott, 771 F.3d at 833. Thus, "[b]ecause it found that the plaintiffs before it lacked standing to raise the issue, the Fifth Circuit did not address the question whether Section 7 requires voter registration agencies to offer voter registration services and assistance to persons who engage in remote transactions." (Doc. 174 at 2 (emphasis added) (internal quotation marks omitted).) Accordingly, with neither DCFS nor DHH having appealed, the court also resolved "the only question" before it: as to "the validity of the injunction against the Secretary of State," it held "that the Act gives the Secretary of State enforcement authority, and that consequently he has an obligation to require the two state agencies to comply with the other miscellaneous portions of the Act." Scott, 771 F.3d at 833. After the Amended Injunction was appealed, the Fifth Circuit vacated and remanded due to this latest order's lack of specificity. Scott v. Schedler, No. 15-30652, 826 F.3d 207, 209-10, 2016 WL 3345277, at *1 (5th Cir. June 15, 2016).
Before and after the Scott Matter's adjudication, other facts relating to several statutory violations have been unearthed. Three alleged violations involve paragraph (a)(4)(A) of Section 7, which begins: "At each voter registration agency, the following services shall be made available...." 52 U.S.C. § 20506(a)(4)(A (emphasis added); Ass'n of Cmty. Orgs. for Reform Now v. Ridge, Civ. Nos. 95-7671, 1995 WL 136913, at *2 (E.D.Pa. Mar. 30, 1995). Thereupon § 20506(a)(4)(A)(i) requires each VRA to "distribut[e] ... mail voter registration application forms" that satisfy the minimal content requirements set in § 20506(a)(6). 52 U.S.C. § 20506(a)(4)(A)(i); Krieger, 2014 U.S. Dist. LEXIS 138293, at *15, 2014 WL 4923904, at *6. Section 20506(a)(4)(A)(ii) requires that "assistance to applicants in completing voter registration application forms, unless the applicant refuses such assistance," be provided. 52 U.S.C. § 20506(a)(4)(A)(ii); Scales, 150 F.Supp.2d at 854. Paragraph (a)(4)(A)'s final subparagraph then compels each VRA to transmit each "completed voter registration application forms" to "the appropriate State election official." 52 U.S.C. § 20506(a)(4)(A)(iii); Valdez, 676 F.3d at 944.
Paragraph (a)(6) is the focus of a separate series of purported violations. As this paragraph commands, each VRA must "distribute" a certain approved type of mail voter registration application, a form including a series of questions, and finally "provide each applicant who does not decline to register to vote the same degree of assistance with regard to the completion of the [voter] registration application form as is provided by th[at VRA] office with regard to the completion of its own forms, unless the applicant refuses such assistance." 52 U.S.C. § 20506(a)(6)(A)-(C). Unlike paragraph (a)(4)(A), this paragraph does not contain an "at" or any similar preposition. Instead, it begins: "A voter registration agency that is an office that provides service or assistance in addition to conducting voter registration shall...." Id. § 20506(a)(6); see also Cegavske, 800 F.3d at 1035 ("Voter registration agencies are required to `distribute' voter registration application forms with each application for assistance." (emphasis added)).
The US contends that the Medicaid program managed by DCFS is also rife with compliance issues. "Prior to the initiation of this ... and the Scott litigation, Medicaid applications and renewal forms did not contain the required voter registration forms, and Medicaid offered no voter registration services or assistance to clients and applicants who did not appear in person at a parish office or [Medicaid Application Centers." (Doc. 3601-1 at 18; see also, e.g., Doc. 360-2 ¶ 12 at 4, ¶ 27 at 7.) Up to August 2015, "Medicaid was still failing to offer voter registration forms and declaration forms to all adult citizens who applied for Medicaid using the standard application form," opting to provide such forms "only to the first-named applicant." (Doc. 360-1 at 18; see also, e.g., Doc. 360-2 ¶ 29 at 8.)
Meanwhile, prior to April 11, 2013, the Office for Citizens with Development Disabilities ("OCDD"), classified as a VRA under § 20506(a)(2)(B) and a component of DHH,
The US argues that the many colleges and universities within the University of Louisiana System ("ULS"), the Southern University System ("SUS"), and the Louisiana State University System ("LSU") are not "routinely providing" these forms. (Doc. 360-1 at 21-23; see also Doc. 360-2 ¶ 149 at 40-41.) Lastly, OAAS and two more LGEs — the Metropolitan Human Services District ("MHSD") and Capital Area Human Services District ("CAHSD") — fail to offer "the same degree of assistance" in completing voter registration forms mandated by § 20506(a)(6). (Doc. 360-1 at 23-24; see also Doc. 360-2 ¶ 46 at 12, ¶¶ 91-92 at 24.)
Moving on to § 20506(a)(4)(A)(iii) and (d), the US documents these same and other entities' purported failure to comply with the NVRA's transmittal obligations. By virtue of its reliance on CAFÉ, DCFS "ignores its acceptance and transmittal duties almost entirely by solely providing a link to the SOS's online voter registration portal, which is a different mode of voter registration altogether." (Doc. 360-1 at 25; see also Doc. 360-2 ¶ 118 at 32, ¶ 125 at 33-34, ¶ 131 at 35.) Moreover, throughout 2013, 2014, and 2015, photocopied registration applications were being sent by DCFS document processing centers, though such photocopied materials cannot "result in valid voter registration" under Louisiana law. (Doc. 3601- at 25; see also Doc. 360-2 ¶ 131 at 35.) In addition, "DCFS also continues to hold voter registration applications it receives longer than the 10 [and/]or five day deadlines mandated by the NVRA." (Doc. 360-1 at 25 (referring to § 20506(d)(1)); see also Doc. 360-2 ¶ 132 at 35-36.) In fulfilling its duty, the US maintains that DCFS has arguably stumbled in one more particular. Specifically, it "still fails to ensure that all completed voter registration applications transmitted to registrars of voters are properly marked as originating from a public assistance agency." (Doc. 360-1 at 25; see also Doc. 360-2 ¶ 132 at 35-36.)
Like DCFS, DHH has also failed to transmit voter registration with the rigor expected by § 20506(a)(4) and (d). (Doc. 360-1 at 25-26; see also Doc. 360-2 ¶¶ 67-67A at 17-18.) Relatedly, since DHH's contracts with each LGE provide that it "shall monitor this Contract and conduct compliance monitoring consistent with the provisions of the AIP, and all applicable statutes, rules, and regulations, assuring corrective action through coordination with the LGE," (Doc. 360-2 ¶ 77 at 20), these LGEs' many documented failings to comply with the NVRA must be attributed to DHH. (Doc. 360-1 at 26-28.)
Noting that the SOS' coordination power includes "enforcement power" pursuant to Scott, 771 F.3d at 838-39, the US turns to those facts bearing on SOS' defiance of the NVRA.
More violations are alleged by the US: the SOS does not include instructions on voter registration declaration and application forms outlining the duties of applicants and agencies and uses a model form that does not include information required by Louisiana's own Election Code. (Doc. 360-2 ¶¶ 186-87 at 52.) The SOS has even given voter registration agencies advice or instructions that "directly ... conflict" with the NVRA. (Doc. 360-1 at 32; see also Doc. 360-2 ¶ 182 at 51-52.) Even his classification system for voter forms runs afoul of federal law's clear requirements, with many applications not being coded as having been received or generated through a public assistance agency. (Doc. 360-2 ¶¶ 193-96 at 54-55; cf. Doc. 1 ¶ 23 at 7-8.) One more example suffices: though SOS has required DCFS to submit quarterly activity reports as of January 2014, "DCFS did not submit any of the required quarterly reporting information until January 2015." (Doc. 360-2 ¶ 104 at 28.)
As to the foregoing failings predating the Scott Matter, DHH and DCFS have acknowledged their noncompliance "with the NVRA in every respect." (Doc. 398 at 1; Doc. 399 at 1; Doc. 402 at 2.) More importantly, while they challenge the propriety of the present suit, DHH and DCFS aver no more than their "substantial compliance" with the NVRA and characterize any "current ... violation" as "minimal, at best." (Doc. 398 at 2; Doc. 399 at 2; Doc. 402 at 2.) Hence, DCFS and DHH do not truly deny every "fact," characterized as such by the US. (Doc. 398 at 2; Doc. 399 at 2; Doc. 402 at 2; Doc. 399-1; Doc. 402-1.) Instead, these allied defendants repeatedly insist "substantial compliance with the NVRA" has occurred since the First Injunction was entered, (Doc. 398 at 9-38; Doc. 399 at 9-38), though SOS attempted to do so with a belated motion, (Doc. 448).
In its Findings of Fact and Conclusions of Law, the Scott Court stated its conclusions plainly and unmistakably: "[p]rior to August 15, 2011," DHH, DCFS, and SOS had not not "in full compliance with the [NVRA's] mandates." (Doc. 436 at 3, 25, 27, 29, No. 2:11-cv-00926-JTM-JCW.) This court did award a broad remedy, requiring the SOS "to implement such policies, procedures, and directives as to each [qualifying'] program," (Doc. 437, No. 2:11-cv-00926-JTM-JCW), and was eventually reversed for this seeming "vagueness" pursuant to Rule 65(d), Scott, 826 F.3d at 212-13, 2016 U.S. App. LEXIS 10919, at *12-13, 2016 WL 3345277, at *4. However, as its actual opinion reveals, the Scott Court adjudicated NVRA compliance by SOS, DHH, and DCFS as to only three specific state programs: Medicaid, WIC,
Examples gleaned from Defendants' own filings and the US' MSJ disclose as much. Thus, DCFS and DHH have already conceded that certain "disability services programs," including the regional service centers of several LCDs, OBH, and OAAS, were "not raised or litigated in Scott." (Doc. 398 at 9; Doc. 399 at 9.) Yet, according to these Defendants, these VRAs "were not consistently providing voter registration with each application" as required by the NVRA. (Doc. 398 at 10-13; Doc. 399 at 10-13.) Similarly, DCFS has acknowledged that the Scott Court never discussed or determined CAFÉ's compliance with the NVRA. (Doc. 402 at 7.) Indeed, in DHH's First Opposition to US' MSJ, DHH identifies only two programs as having been litigated to a final judgment in Scott: WIC and Medicaid. (Doc. 398 at 9.) No mention of any deficiencies in the services provided by Louisiana's higher education system or several LGEs, moreover, can be found in Scott. (Compare Doc. 346-1, with Doc. 436, No. 2:11-cv-00926-JTM-JCW.) Despite their multiple motions, DCFS and DHH admit that "instances of program-specific NVRA violations" still regularly occur. (Doc. 398 at 2.)
Eighty-four (84) days after the Scott Matter had begun, Plaintiff filed the relevant complaint on July 12, 2011, charging Defendants with violating Section 7 of the NVRA. (Doc. 1; see also Doc. 1, No. 2:11-cv-00926-JTM-JCW.) Dated January 25, 2016, Schedler's MSJ prompted the filing of the US' Opposition to Schedler's MSJ on February 24, 2016, (Doc. 382), which was followed by Schedler's MSJ Reply on March 15, 2016, (Doc. 395), the US' Surreply to Schedler's Reply on March 23, 2016, (Doc. 420), and Schedler's Surreply on March 28, 2016, (Doc. 423). DCFS' MTD, filed on January 29, 2016, (Doc. 340), led to the tendering of the US' Opposition to DCFS' MTD on February 29, 2016, (Doc. 385), and the DCFS' Reply on March 21, 2016, (Doc. 407). Stamped January 29, 2016, (Doc. 341), LA's First MTD prompted the US' Opposition to LA's First MTD on February 29, 2016, (Doc. 384), and LA's First Reply on March 21, 2016, (Doc. 409). Schedler's MTD, filed on January 31, 2016, (Doc. 342), was followed by the US' Opposition to Schedler's MTD on March 1, 2016, (Doc. 388), DCFS' Joinder Response on March 1, 2016, (Doc. 389), and Schedler's MTD Reply on March 23, 2016, (Doc. 415). LA's Second MTD was filed on February 1, 2016, (Doc. 345), the US' Opposition to LA's Second MTD on March 2, 2016, (Doc. 394), and Schedler's MTD Reply on March 23, 2016, (Doc. 414). The US' MSJ, an incorrect version filed on February 1, 2016, (Doc. 346), and a corrected one on February 2, 2016, (Doc. 360), was trailed by DHH's First Opposition to US' MSJ, (Docs. 398-99), LA's Opposition to US' MSJ, (Doc. 400), and DCFS' Opposition to US' MSJ on March 18, 2016, (Doc. 402). The US' MSJ Reply came on April 18, 2016. (Doc. 444.) Twenty days earlier, on March 29, 2016, in response to the Parties' Joint Motion to Set Dispositive Motions for Oral Argument, (Doc. 421), the Court scheduled oral argument on these motions for May 17, 2016. (Doc. 426.) On May 17, 2016, this Court heard the Parties' arguments ("Motions Hearing") and took the matter under advisement.
On January 23, 2013, the Scott Court issued the First Injunction. (Doc. 437, No. 2:11-cv-00926-JTM-JCW.) The Fifth Circuit affirmed and vacated in part on November
In its first dispositive motion, (Docs. 341), and its supporting reply, (Doc. 409), LA invokes Rules 12(b)(1), contesting this Court's jurisdiction for three reasons.
First, LA argues that this court has always lacked subject-matter jurisdiction over the Parties' dispute based on the Constitution's Eleventh Amendment. (Doc. 341 at 2; Doc. 341-1 at 2-4; see also Doc. 414 at 6-8.) This amendment "bars a state's citizens from filing suit against ... [a s]tate in federal court unless it has waived its immunity." (Doc. 341 at 2-3, 3 n.3.) LA has not done so, as both case law and state law reveal, and Plaintiff's suit must therefore be dismissed. (Id. (referring to LA. R.S. § 13:5106(A); Patterson v. Stalder, Civ. No. 06-752-P, 2007 WL 2479830 (W.D.La. Aug. 27, 2007); and Kiper v. La. State Bd. of Elementary & Secondary Educ., 592 F.Supp. 1343 (M.D.La.1984)); see also, e.g., Doc. 341-1 at 4-6; Doc. 409 at 7-8.)
Second, LA asserts that only one "very narrow" and inapplicable exception — the so-called "Ex Parte Young exception" — exists. (Doc. 341 at 2.) In general, this exception allows "[a] state official in his or her official capacity ... [to] be sued for prospective injunctive relief [so as] to prevent or cure an ongoing violation of the Constitution or federal law." (Doc. 341-1 at 6.) Here, however, "the Plaintiff [has] fail[ed] to show that the State of Louisiana has the requisite connection with the enforcement of the act challenged necessary to establish the Ex Parte Young Exception." (Doc. 341 at 2; see also, e.g., Doc. 341-1 at 6-7; Doc. 409 at 8-9.) Young does not apply, and Young alone could justify the US' present suit.
Third, "other officers and agencies," not LA, "are actually responsible for specific enforcement of the provisions of the National Voter Registration Act challenged." (Doc. 341 at 2.) LA "cannot singularly enforce the policies of the NVRA," and since "[t]his court" has already held the SOS "responsible for NVRA compliance," it was and is "not necessary or proper for `the State' to be a named Defendant in connection with this case." (Doc. 341 at 3; see also Doc. 409 at 2-6.) For support for this contention, LA directs this Court to an order regarding the Plaintiff's motion to compel, (Doc. 315), issued by the Honorable Richard L. Bourgeois and identifying the SOS as "the entity responsible for NVRA compliance" ("Order on Motion to Compel"), (Doc. 327 at 5). (Doc. 341-1 at 7-8; see also Doc. 409 at 6; cf. Doc. 414 at 8.) In LA's First Reply, this point is emphasized: as LA has designated the SOS as its chief election officer, it "has completed its duty" under the NVRA and "is no longer
To LA's First MTD, the US makes three responses. First, the Eleventh Amendment does forbid suits by a state's citizens against a state, but it does not proscribe a suit against a state by the United States. (Doc. 384 at 3-4; see also Doc. 444 at 14.) While there are limited exceptions, none apply here, and the present action is thus unimpeded by the Constitution. (Doc. 384 at 4-5; see also Doc. 444 at 14.) Second (and relatedly), LA is "mistaken" when it insists the Ex Parte Young Exception could alone justify this suit, as "Ex Parte Young does not apply to the United States' suing the State." (Doc. 384 at 6-7; see also Doc. 444 at 14.) Third, "[q]uestions about whether the United States has sufficiently alleged acts and omissions on the part of the State that violate the NVRA, or about whether the State has the ability to enforce the NVRA" go to the merits, more properly advanced in a motion to dismiss predicated on Rule 12(b)(6) or (c). (Doc. 384. at 7; see also Doc. 444 at 14.) The US even advises LA that Rule 12(c)
Within days of its first motion, (Doc. 341; Doc. 384 at 7), LA submitted its second dismissal motion, (Doc. 345). In essence, this motion argues that "no statutory authority is given [by the US] to support a suit against the State of Louisiana under the NVRA," (Doc. 345 at 2; see also Doc. 414 at 9), as "none of the[ ] provisions [cited by the US] give the ... [US] the authority to actually bring suit against the state," (Doc. 345-1 at 2). LA goes further, contending that the Complaint contains "no allegations against the State of Louisiana or that the State of Louisiana caused the deprivation of a clearly established constitutional right of the Plaintiff."
The US responds to LA's Second MTD with statutory citations and jurisprudential distinctions. By its reckoning, "as a `State of the United States,' Louisiana is subject to the requirements of the NVRA." (Doc. 394 at 3 (citing to 52 U.S.C. §§ 20502(4), 20503); see also Doc. 444 at 14.) Section 20509, in turn, "speaks generally about
The US then points to a telling piece of evidence: on July 8, 2015, the former Governor of Louisiana issued an executive order directing the other defendants here to comply with the SOS' efforts to enforce the NVRA, a "recent and noteworthy example of the State's exercise of its direct authority under the NVRA." (Doc. 394 at 5; see also Doc. 444 at 14.) Characterizing LA's reliance on Rule 12(c) as "misguided," the US concludes with a reaffirmation of this case's factual and legal underpinnings, as it perceives them: LA "is responsible for its consistent and repeated failure to meet its obligations under the NVRA," and the "behavior of ... [its] officials — actions and omissions which have resulted in consistent and widespread NVRA non-compliance throughout Louisiana — make the State an appropriate Defendant in this case." (Doc. 394 at 8-9.) Naturally read, the NVRA pegs LA as the entity responsible for its overall enforcement and compliance, assigning it ultimate liability even as it requires that one official be selected as the state's administrator, as the Governor's statement underscores.
Predicated on res judicata and mootness, DHH and DCFS advance four specific grounds for this matter's dismissal in DCFS' MTD.
First, invoking the doctrine of res judicata, which "incorporates claim preclusion and issue preclusion," DCFS and DHH contend that the Scott judgement should bind this Court and lead to this action's dismissal. Defendants argue that, in the two actions, "defendants (DHH and DCFS) are the same," "the sole issue" is "the same," and "the remedy requested... is the same." (Doc. 340-1 at 3, 6-7.) Further, DHH and DCFS "continue to operate their voter registration programs under compulsion of the Eastern District's
Second, DCFS and DHH deem the US to have been in "aligned interest with the Scott Plaintiffs." (Doc. 340-1 at 3; see also Doc. 185 at 9.) Though a non-party to the Scott suit, the US was "adequately represented" as Scott and the NAACP were "so closely aligned to ... [its] interests as to be ... [its] (virtual) representative." (Doc. 340-1 at 3; see also Doc. 185 at 9.) This
This "ample" evidence consists of the Statement of Interest the US filed in the Scott Matter, taken "under consideration" by the Scott Court, its filing of an amicus brief in the Fifth Circuit, and its five-minutes' worth of oral argument there. (Doc. 185 at 9-10; see also Doc. 340-1 at 4.) In addition, "USA's counsel" allegedly "observed the Scott trial and often conferred with counsel for the Scott Plaintiffs throughout trial." (Doc. 185 at 10 n.37; see also Doc. 340-1 at 4.) With the US having been virtually represented in the Scott matter, res judicata applies, and the US should not be allowed "to take a second shot at ... [its] previously-rejected request for continued monitoring and reporting." (Doc. 340-1 at 5.) In making this argument, Defendants emphasize res judicata's underlying purposes: the avoidance of duplicative and wasteful litigation. (See, e.g., Doc. 38 at 6-7; Doc. 340-1 at 5-7; Doc. 398 at 42-44, 47-48; Doc. 407 at 7, 12.)
Third, "because the issues raised in this case were mooted through resolution of those same issues in Scott, there is no case or controversy for this Court to resolve."
Lastly, these Defendants question the propriety of the kind of constant monitoring that the US has now demanded, as the latter has yet to show Defendants' unwillingness to comply with the NVRA. (Doc. 340-1 at 5-6; see also Doc. 191 at 9-10; Doc. 407 at 14-15.) Absent such defiance, monitoring has been rejected as a remedy, as it was by the Scott Court. (Doc. 340-1 at 6; see also Doc. 191 at 9-10.) Federalism itself compels that this Court stay its hand. (See, e.g., Doc. 340-1 at 5, 7.)
Beyond these rationales for dismissal, DHH and DCFS repeatedly concede that "isolated instances of non-compliance" or "minor issues" have occurred since Scott's injunction was entered, but deny the emergence of "a supportable persistent practice of current noncompliance." (Doc. 407 at 7-8, 16-17.)
The US responds with five distinct points. First, it has independent authority and interest in the NVRA's enforcement; thus, it cannot be barred by preclusion principles from litigating the present matter as a result of private parties' separate litigation. (See, e.g., Doc. 189 at 8, 13-14; Doc. 385 at 3; Doc. 444 at 9.) Second, regardless of how Defendants portray its prior actions, the US was neither a party nor in privity with the Scott Plaintiffs, and its interests were not so aligned as to render the latter virtual representatives of
On January 31, 2016, Schedler filed his own MSJ. As Schedler argues, "[c]ompelled" by the Scott court's injunction, (Doc. 437, No. 2:11-cv-00926-JTM-JCW), "defendants adopted a regime of NVRA rules, practices, procedures and forms that changed their previous practices and procedures relating to voter registration." (Doc. 342 at 2; see also Doc. 342-15 at 1.) Logically, therefore, "[t]he declaratory and injunctive relief sought by the United States has been rendered moot because the United States can no longer challenge registration practices and procedures that no longer exist in order to obtain prospective relief." (Doc. 342 at 2; see also Doc. 342-15 at 10.) In other words, "[u]nless the United States can assert colorable claims that have not been subsumed by Scott and the State's response to Scott, the issues in this case, again with the exception of the in-person remote issue, are moot." (Doc. 415 at 3; see also Doc. 342-15 at 1, 3-4.) SOS has "made more than a reasonable effort to coordinate the State's NVRA responsibilities post-Scott," as shown by the declaration of Ms. Lani Durio, SOS' own NVRA coordinator, (Doc. 342-15 at 14). (Doc. 415 at 19.) Accordingly, "[t]here really is no case left." (Id.; see also Doc. 342-15 at 14-15.) With only one exception — "to the extent" the US seeks "to expand the provisions of Section 7 beyond `in person' applications" — no case and controversy, as required by the Constitution's third article, remains.
Though he has disparaged the Amended Injunction's vagueness before the Fifth
Incorporating the arguments already raised in response to DCFS' MTD, (Doc. 385), and the US' MSJ, (Docs. 346, 360), the US contests Schedler's construction of the mootness doctrine. Under well-settled law, "[a] case should not be declared moot as long as the parties maintain a concrete interest in the outcome and effective relief is available to remedy the effect of the violation." (Doc. 388 at 4 (quoting Envtl. Conservation Org. v. City of Dallas, 529 F.3d 519, 527 (5th Cir.2008)). Here, because it has presented evidence demonstrating SOS' continued violation of the NVRA and ineffective implementation of his own promulgated regulations, this case has not been mooted by Scott's still indeterminate
In his own MSJ, Schedler advances one argument: per its text, the NVRA does not apply to certain types of actions undertaken by Louisiana's various VRAs. (Doc. 336 at 1; see also Doc. 395 at 1, 11-12.) Defined more precisely, the NVRA, he contends, does not require that the voter registration efforts it mandates in Section 7 occur when a VRA engages in a remote transactions. (Doc. 336 at 1; see also Doc. 395 at 1.) Instead, it "applies only to in person transactions at agency offices." (Doc. 336-5 at 4; see also Doc. 395 at 1-2.) In his view, any other construction of the NVRA expands its coverage and scope in a manner contrary to the Constitution and the laws of the United States. (Doc. 336 at 2; see also Doc. 336-5 at 7; Doc. 395 at 6-9.)
In support, SOS offers up the following "evidence." First, he cites to one of Section 4's paragraphs. (Doc. 336-5 at 7.) In relevant part, this subsection states that "each State shall establish procedures to register to vote in elections for Federal office ... by application in person ... at a Federal, State, or nongovernmental office designated under section 7." 52 U.S.C. § 20503(a)(3). This subsection, in turn, cabins the scope of Section 7 to only "in person" transactions; thus, as "the NVRA speaks in clear, unambiguous terms with respect to in person applications at public assistance and disability services offices," this Court obligated to adhere to "[such] particular, concrete terms." (Doc. 336-5 at 8-9; see also Doc. 395 at 12-13.) In such instances, any construction of Section 7 that ignores the limitation in Section 4
Second, Schedler places much weight on the NVRA's legislative history. Most particularly, he stresses the "in person" phrase encoded in Section 20503(a)(3) and the Act's apparent silence as to the issue of remote transactions. (Doc. 336-6 at 9-10; see also Doc. 395 at 14-16.) No reference to telephonic or online applications appears in that thirteen page act, and the "in person" restriction that adorns other sections must be read into Section 7(a)(6). "Statutes do not change their terms," he states. (Doc. 395 at 18.) "Congress" alone "must amend them." (Id.)
Third, he contends that if one looks at how the VRAs "work in practice," it is clear "that the procedures contemplate an in person, face to face transaction." (Doc. 336-5 at 13-17.) To ignore the weight of this evidence is to rewrite the statute, a congressional function beyond the province of any court. (See, e.g., Id. at 17-18; Doc. 395 at 18-19.) Although they both failed to appeal the Scott Court's decision finding the NVRA to extend to remote transactions, DCFS and DHH now endorse this position. (See, e.g., Doc. 38 at 6, 8.)
The US counters with two points. First, it disputes the extent to which a live and ripe controversy as to the NVRA's coverage over remote transactions actually exists for one reason. As Schedler has himself admitted, (Doc. 382-1 at 2), the actual policies already governing the VRAs require that these entities provide "voter registration services in connection with qualifying transactions that occur remotely." (Doc. 382 at 3; see also Doc. 444 at 14.) In fact, despite the SOS' insistence to the contrary, DHH and DCFS have adopted the same such regulations, and this general approach is embodied in SOS' NVRA compliance manual. (Doc. 382 at 3-4; see also, e.g., Doc. 420 at 1; Doc. 444 at 14.) The US emphasizes the latter, this "long understood" construction of the NVRA wholly consistent with the SOS' own online manual, regardless of its present head's litigation posture. (Doc. 382 at 4-5; see also Doc. 444 at 14.) In other words, Schedler, not the US, is contravening history by adopting a personalized statutory "reading," one previously rejected by the agency he administers, as his "current litigation position."
Second, the US strives to show that Section 7 does apply to remote transactions, attacking Schedler's reading for being "inconsistent with the NVRA's plain text and contrary to Congress'[ ] intent." (Doc. 382 at 6; see also Doc. 444 at 14.) Textually, the NVRA "establishes a framework through which all voter registration agencies must offer registration opportunities both (1) upon request by individuals appearing in person," in accordance with § 20506(a)(4), and "(2) with `each' qualifying transaction," in accordance with
Such an interpretation, according to the US, has additional benefits. Most obviously, it does not render two other statutory phrases — Section 4's reference to "in person" transactions and Section 7's use of "in addition" — superfluous, as one more canon forbids, see infra Parts IV.D, V.B. (Id. at 15-16.) Furthermore, it aligns with the NVRA's preeminent purpose — "to increase voter registration and expand registration opportunities" — and avoids an "odd, "obviously unintentional," and "absurd" result — the NVRA would not reach those citizens "not likely to benefit from the State motor-vehicle registration application provisions." (Id. at 17-18.) The Act was expansively written, and remote transactions rather neatly fit within Section 7(a)(6).
In moving for summary judgment, the US relies on the "facts" summarized above, see supra Part II.C.2, that it has collected during this case's discovery to support a specific conclusion: as a matter of undisputed fact and clear law, Defendants have failed to achieve "full compliance with Section 7" and "to remedy its earlier pre-Scott "non-compliance," their failings varied and documented. (Doc. 346 at 1-2; see also Doc. 444 at 19-56.) Briefly summarized, the US contends there is no genuine dispute as to four issues.
First, despite § 20506(a)(6)(A)-(B), DCFS, DHH, OCDD, OBH, LCD, OAAS, LGEs, disability offices at various colleges and universities have not and continue not to distribute voter registration applications, voter declaration forms, and related assistance with each initial application for their NVRA-covered services. (Doc. 360-1 at 18-23; accord Doc. 346-1 at 17-23; see also Doc. 444 at 19-29, 40-51.)
Second, although § 20506(a)(6)(C) requires each VRA to "provide to each applicant who does not decline to register to vote the same degree of assistance with regard to the completion of the registration application form as is provided by the office with regard to the completion of its own forms, unless the applicant refuses such assistance," two of these same entities — OAAS and LGEs — have not done so. (Doc. 360-1 at 23-24; accord Doc. 346-1 at 23-24; see also, e.g., Doc. 444 at 2, 17-19, 37-40, 51-52.)
Third, even as § 20506(a)(4)(A)(iii) mandates that "at each" VRA that entity "accept[ ] ... completed voter registration application forms for transmittal to the appropriate State election official" and § 20506(d) sets precise deadlines, a VRA "may not simply direct an applicant to
Fourth, in defiance of the NVRA's tenth section and the Fifth Circuit in Scott, the SOS "continues to disavow his authority and responsibility to ensure statewide compliance with the NVRA," (Doc. 360-1 at 29; accord Doc. 346-1 at 29; see also Doc. 444 at 54-56), as suggested by the "facts" uncovered so far, see supra Part Part II.C.2.a. For example, SOS "willingly allowed DCFS and DHH to flout" his own NVRA rules "for more than two years because those agencies repeatedly questioned the SOS's authority to issue the rules." (Doc. 360-1 at 29-32; accord Doc. 346-1 at 29-32.
The US makes two more legal points. First, it insists that preclusion does apply to the Scott Court's findings as to Defendants, but that preclusion does not bar it from introducing evidence of pre-Scott noncompliance or this Court from considering additional relief appropriate to address the Defendants' past and present noncompliance, regardless of the Amended Injunction. (Doc. 360-1 at 33-37; accord Doc. 346-1 at 32-37; see also Doc. 444 at 51-54.) Second, the US emphasizes that the very fact that Defendants have continued to defy the NVRA supports its present suit's unique remedial request. As it explains, "[t]he United States is seeking different and more tailored declaratory and injunctive relief than what the Scott court granted to the private plaintiffs in that case — precisely because, as the uncontroverted evidence in this case shows, the Scott court's remedial order was not sufficient to prevent Louisiana's continued non-compliance with the NVRA or to remove the lingering impact of Louisiana's longtime noncompliance with the NVRA." (Doc. 360-1 at 37-38; accord Doc. 346-1 at 37-38; see also Doc. 444 at 6.) Three years after the Scott Matter began, the evidence establishes that "simply requiring Defendants to certify generic compliance with the NVRA, without imposing any mechanism for monitoring how such compliance is achieved and without specifying the particular actions that Defendants must take to remedy th[ose] violations, is insufficient." (Doc. 360-1 at 38; accord Doc. 346-1 at 38; see also Doc. 444 at 6.) With Defendants' recent history having underscored the ineffectiveness of the Scott Court's chosen remedy, a new one is now appropriate. (Doc. 360-1 at 38; accord Doc. 346-1 at 38; see also Doc. 444 at 6.)
In general, even while repeatedly insisting on the strict application of preclusion law to bar this suit by the US, (Doc. 398 at 1-2, 38-42; Doc. 399 at 1-2, 38-42; Doc. 400 at 10-11; Doc. 402 at 17), and emphasizing the unfairness and wastefulness effectuated if this Court was not to do so, (Doc. 398 at 42-48; Doc. 399 at 42-48; Doc. 400 at 11, 17), DCFS and DHH advance five other
Second, Defendants contest every "fact" collected by and relied upon by the Plaintiff in the US' MSJ. (Doc. 398 at 4; Doc. 399 at 4.) By Defendants' reckoning, their current efforts "far exceed the `reasonable effort' standard imposed" by the NVRA; only "discrete and isolated events" in contravention of the NVRA can be supported. (Doc. 402 at 5-6, 12; Doc. 398 at 7; Doc. 399 at 7.) Third, Defendants maintain that their every past effort has already been "litigated to final judgment in Scott," (Doc. 398 at 9; Doc. 399 at 9), a position that they promptly undermine, (Doc. 398 at 10-12; Doc. 399 at 10-12).
Throughout their papers, Defendants rest on their asserted achievement of "substantial compliance" by those VRAs involved — and those not involved — in Scott. (Doc. 398 at 10-21, 26-29; Doc. 399 at 10-21, 26-29; Doc. 400 at 10-11; Doc. 402 at 5-6, 10-12.) In this vien, the absence of any formal complaint by an applicant is repeatedly stressed. (Doc. 398 at 26; Doc. 399 at 26; Doc. 402 at 15.) Any more burdensome duties mined from the NVRA by the US, in turn, are simply unsupported by the Act's plain text. (Doc. 398 at 18-25; Doc. 399 at 18-25; Doc. 402 at 6-15.)
Fourth, DHH first denies its responsibility for the LGEs' alleged violations of the NVRA and then labels the US' allegations as to these creations be wholly "unsubstantiated." (Doc. 398 at 29-38; Doc. 399 at 29-38.) Finally, returning to their preclusion arguments, Defendants contend that the "law dictates denial of the [G]overnment's proposition that this Honorable Court revisit the Defendants' past violations in order to fashion a remedy in this case." (Doc. 398 at 49-53; Doc. 399 at 49-53; Doc. 400 at 9-11.) Too little evidence of unwillingness to comply, in their view, exists to justify the kind of extensive monitoring that the US now demands. (Doc. 398 at 49-53; Doc. 399 at 49-53; Doc. 400 at 11.) With their final motion in opposition, Defendants reiterate these points, concluding: "There is no occasion in this case for the requested intrusion into the [state] government's sovereignty." (Doc. 402 at 18.)
Rule 12(b)(1) requires a federal court to dismiss an action over which it "lack[s] subject matter jurisdiction." FED. R. CIV. P. 12(b)(1). The lack of such constitutionally
"The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction." Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001); accord Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 675, 86 L.Ed. 951, 955 (1942); cf. Padilla-Mangual v. Pavia Hosp., 516 F.3d 29, 34 (1st Cir.2008). Yet, district courts are expected to treat Rule 12(b)(1) motions to dismiss where jurisdiction is intertwined with the merits as challenges to the latter. Williamson, 645 F.2d at 415; accord, e.g., Stem v. Gomez, 813 F.3d 205, 210 (5th Cir.2016); Lawrence v. Dunbar, 919 F.2d 1525, 1530 (11th Cir. 1990).
Rule 12(b)(6) permits dismissal for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). The analysis mandated by Rule 12(b)(6) analysis incorporates the pleading standard articulated in Bell Atlantic Corp. v. Twombly: "To pass muster under Rule 12(b)(6), [a] complaint must have contained enough facts to state a claim to relief that is plausible on its face." Reece v. U.S. Bank Nat'l Ass'n, 762 F.3d 422, 424 (5th Cir. 2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929, 949 (2007)). In the course of this determination, a court "must" still "consider the [factual] allegations in the plaintiff's complaint as true." Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.1981); accord, e.g., S.R.P. v. United States, 676 F.3d 329, 344 (3d Cir.2012). A claim possesses the requisite facial plausibility when a plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868, 884 (2009).
In the Fifth Circuit, "[g]enerally a res judicata contention cannot be brought in a motion to dismiss; it must be pleaded as an affirmative defense." Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 570 n. 2 (5th Cir.2005); see also Norris v. Hearst Trust, 500 F.3d 454, 461 n. 9 (5th Cir.2007). The Fifth Circuit has further noted that "[r]es judicata is an affirmative defense that should not be raised as part of a 12(b)(6) motion, but should instead be addressed at summary judgment or at trial." Am. Realty Trust, Inc. v. Hamilton Lane Advisors, Inc., 115 Fed.Appx. 662, 664 n. 1 (5th Cir.2004) (citing Moch v. E. Baton Rouge Parish Sch. Bd., 548 F.2d 594, 596 n. 3 (5th Cir.1977)
Pursuant to Rule 12(c), "[a]fter the pleadings are closed — but early enough not to delay trial — a party may move for judgment on the pleadings." FED. R. CIV. P. 12(c); Lillian B. v. Gwinnett Cnty. Sch. Dist., 631 Fed.Appx. 851, 852 (11th Cir.2015). As required for purposes of Rule 12(b)(6), a court may not consider any evidence outside the pleadings in weighing the merits of a Rule 12(c) motion. Hiller v. HSBC Fin. Corp., 589 Fed.Appx. 320, 322 (6th Cir.2015). In addition, it must "construe the complaint in the light most favorable to the plaintiff, accept all of the complaint's factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of his claim that would entitle him to relief." Hoven v. Walgreen Co., 751 F.3d 778, 783 (6th Cir.2014) (citing Ziegler v. IBP Hog Mkt., Inc., 249 F.3d 509, 512 (6th Cir. 2001)); see also Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir.2006) ("The standard for addressing a Rule 12(c) motion for judgment on the pleadings is the same as that for a Rule 12(b)(6) motion to dismiss for failure to state a claim."). Rule 12(c) provides "a means of disposing of cases when ... a judgment on the merits can be achieved by focusing on the content of the competing pleadings." Perez v. Wells Fargo N.A., 774 F.3d 1329, 1336 (11th Cir.2014) (emphasis omitted).
Per Rule 56(a), summary judgment is appropriate "if the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a); Wilson v. Tregre, 787 F.3d 322, 325 (5th Cir.2015) (quoting Rule 56(a)). A dispute is "genuine" so long as "the evidence is such that a reasonable jury could return a verdict for the nonmoving party"; a fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); see also Ray v. United Parcel Serv., 587 Fed.Appx. 182, 186 (5th Cir. 2014). A court construes all facts and evidence in the light most favorable to the nonmovant. Haverda v. Hays Cnty., 723 F.3d 586, 591 (5th Cir.2013). In response to another's motion, the nonmovant cannot rely on "[c]onclusional allegation and details, speculation, ... unsubstantiated assertions, and legalistic argumentation." TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir.2002).
Still, "[w]hen both parties have submitted evidence of contradictory facts," Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir.2005), a court is bound to "draw all reasonable inferences in favor of the nonmoving party," Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150, 120 S.Ct. 2097, 2110, 147 L.Ed.2d 105, 122 (2000); see also Anderson, 477 U.S. at 248, 106 S.Ct. 2505 (emphasizing the irrelevance of "[a]ny proof or evidentiary requirements imposed by the substantive law," materiality "not a criterion for evaluating the evidentiary underpinnings of [factual disputes]"). It thus cannot "make credibility determinations or weigh the evidence." Reeves, 530 U.S. at 150, 120 S.Ct. 2097. This command — that a district court "eschew making credibility determination
So constrained, by Rule 56, this Court must "give credence to the evidence favoring the nonmovant as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses." 9A WRIGHT, supra, § 2529. To wit, although this Court "should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe." Reeves, 530 U.S. at 151, 120 S.Ct. 2097, cited in Haverda, 723 F.3d at 591. Within the narrow domain of Rule 56, summary judgment is hence inappropriate (1) if there are legitimate, not superficial or frivolous, factual disputes that may affect the outcome of the case under the applicable substantive law, see Anderson, 477 U.S. at 248, 106 S.Ct. 2505, and (2) so long as the nonmovant does not exclusively rely on "some metaphysical doubt as to the material facts," "conclusory allegations," "unsubstantiated assertions," or "a scintilla of evidence," Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 538, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Lujan v. National Wildlife Federation, 497 U.S. 871, 871-73, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990), and Hopper v. Frank, 16 F.3d 92 (5th Cir.1994)). Questions of statutory construction is particularly well-suited for resolution by summary judgment. See, e.g., Asher v. Am. Home Mortg. Servicing, Inc. (In re Asher), 488 B.R. 58, 64 (Bankr.E.D.N.Y.2013); Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir.1993) (citing Oklahoma ex rel. Dep't of Human Servs. v. Weinberger, 741 F.2d 290, 291 (10th Cir.1983)); Stissi v. Interstate & Ocean Transport Co., 765 F.2d 370, 374 (2d Cir.1985); WILLIAM W. SCHWARTZER ET AL., FEDERAL JUDICIAL CENTER, THE ANALYSIS AND DECISION OF SUMMARY JUDGMENT MOTIONS 15 (1991).
Statutory interpretation begins with the enacted text, and a court's review must terminate if that language is both plain and unambiguous. E.g., Roberts v. Sea-Land Servs., 566 U.S. 93, 132 S.Ct. 1350, 1356, 182 L.Ed.2d 341, 354 (2012) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 846, 136 L.Ed.2d 808, 813 (1997)); Tyler v. Douglas, 280 F.3d 116, 122 (2d Cir.2001) (quoting Sullivan v. Cnty. of Suffolk, 174 F.3d 282, 285 (2d Cir.1999)), cert. denied, 536 U.S. 906, 122 S.Ct. 2361, 153 L.Ed.2d 182 (2002). Indeed, though the result may be harsh or impractical, the written text must be applied. See, e.g., Lamie v. U.S. Tr., 540 U.S. 526, 538, 124 S.Ct. 1023, 1032, 157 L.Ed.2d 1024, 1036 (2004) ("Our unwillingness to soften the import of Congress' chosen words even if we believe the words lead to a harsh outcome is longstanding."); Cent. Trust Co. v. Official Creditors' Comm. of Geiger Enters., Inc., 454 U.S. 354, 360, 102 S.Ct. 695, 698, 70 L.Ed.2d 542, 548 (1982) (per curiam) ("While the Court of Appeals may have reached a practical result, it was a result inconsistent with the unambiguous language used by Congress."); Edwards v. Valero Refining-Meraux, LLC, No. 3:14-00772-JWD-EWD,
In ascertaining a statute's degree of ambiguity or plainness, an interpreter must attend to "the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Robinson, 519 U.S. at 341, 117 S.Ct. 843; accord FCC v. AT & T, Inc., 562 U.S. 397, 407, 131 S.Ct. 1177, 1184, 179 L.Ed.2d 132, 141 (2011). In the most mundane instances of statutory construction, it is context that often proves critical. Cf. Towne v. Eisner, 245 U.S. 418, 425, 38 S.Ct. 158, 159, 62 L.Ed. 372, 375 (1918) (Holmes, J.) ("A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used."). The reason has oft been noted. As language is "inherently contextual," Moskal v. United States, 498 U.S. 103, 108, 111 S.Ct. 461,465, 112 L.Ed.2d 449, 458 (1990), the ambiguity generated by a term's multiple ordinary connotations can oftentimes be dissipated — and a statute found to be both plain and unambiguous — if it can be determined that "only one of the[se] permissible meanings produces a substantive effect that is compatible with the rest of the law," Sav. Ass'n v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371, 108 S.Ct. 626, 630, 98 L.Ed.2d 740, 748 (1988), quoted in AT & T Mobility LLC v. Concepcion, 563 U.S. 333, 354, 131 S.Ct. 1740, 1754, 179 L.Ed.2d 742, 760 (2011); accord FCC, 562 U.S. at 407, 131 S.Ct. 1177; Nken v. Holder, 556 U.S. 418, 426, 129 S.Ct. 1749, 1756, 173 L.Ed.2d 550, 561 (2009). For this reason, "[i]n expounding a statute, ... [courts] must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its policy." Colortex v. Richardson, 19 F.3d 1371, 1375 (11th Cir.1994) (quoting Offshore Logistics v. Tallentire, 477 U.S. 207, 222, 106 S.Ct. 2485, 2494, 91 L.Ed.2d 174, 189 (1986)); accord Hickman v. Texas (In re Hickman), 260 F.3d 400, 403 (5th Cir.2001) (quoting Kelly v. Robinson, 479 U.S. 36, 43, 107 S.Ct. 353, 357-58, 93 L.Ed.2d 216, 225 (1986)).
For decades, numerous linguistic, semantic, and syntactic canons have been utilized in this exercise. See generally ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS (2012). Even if a statute has been found both plain and unambiguous by means of such analysis, courts may reject that meaning's application if: (1) an absurdity would result; (2) clear and incontrovertible evidence of contrary legislative intent exists; (3) an "obvious clerical or typographical error[ ]" is to blame; or (4) a constitutional conflict would arise. See, e.g., Clark v. Martinez, 543 U.S. 371, 381-82, 125 S.Ct. 716, 724-25, 160 L.Ed.2d 734, 747 (2005); U.S. Nat'l Bank v. Indep. Ins. Agents of Am., 508 U.S. 439, 462, 113 S.Ct. 2173, 2186, 124 L.Ed.2d 402, 422 (1993); Russello v. United States, 464 U.S. 16, 20, 104 S.Ct. 296, 299, 78 L.Ed.2d 17, 22 (1983); Amalgamated Transit Union Local 1309, AFL-CIO v. Laidlaw Transit Servs., Inc., 448 F.3d 1092, 1097 (9th Cir.2006) (Bybee, J., dissenting); United States v. DBB, Inc., 180 F.3d 1277, 1281 (11th Cir. 1999). In this jurisprudence, absurdity is narrowly understood, and "odd" things, the byproducts of stray omissions or careless additions, are not necessarily "absurd." Exxon Mobil Corp. v. Allapattah, Servs., Inc., 545 U.S. 546, 565, 125 S.Ct. 2611, 2624, 162 L.Ed.2d 502, 525 (2005); see also Durr v. Shinseki, 638 F.3d 1342, 1349 (11th Cir.2011) (holding canon applicable only in "rare situations where the plain language of a statute, at least where read in isolation, yields a result that is
Before considering the motions for summary judgment filed by Schedler and the US, this Court must determine whether three separate doctrines — the principles of preclusion and of mootness and the extent, if any, of LA's constitutional immunity — compel the Complaint's dismissal. In this analysis, Rule 12 governs. (See, e.g., Doc 340-42, 345.) Accordingly, this Court must grant a presumption of truth to every factual allegation made by the US, the non-movant, and must confine itself to the pleadings or any documents incorporated by reference. See supra Part IV.A-B; see also, e.g., Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002). Relying on no other evidence, this Court does not choose to convert the relevant Dispositive Motions into motions for summary judgment, even though some of the same essential points reappear in Defendants' miscellaneous filings.
Defendants' position is straightforward. In their view, their "substantial compliance" with the NVRA in Scott's aftermath moots the US' current suit, as it is partly predicated on their pre-Scott misdeeds. (See, e.g., Doc. 340-1 at 1-4; Doc. 407 at 1.) Similarly, as the Scott Matter involved the same issues and was litigated by plaintiffs aligned with the US, claim and issue preclusion foreclose the continuance of this litigation. (See, e.g., (Doc. 340-1 at 4; see also Doc. 185 at 13-15; Doc. 407 at 14-15.) LA alone, in turn, insists on its immunity from suit under the NVRA, pointing to both the Eleventh Amendment and the alleged absence of explicit statutory authority for such suit. (See Doc. 341.) If preclusion does indeed apply, dismissal of some discrete issues should likely follow, and if LA's position is not legally mistaken, its dismissal as a party would be mandatory. However, as shown below, preclusion cannot foreclose this action in its entirety, and neither the Eleventh Amendment nor the NVRA absolve LA of liability for this law's violation.
As used by the Parties here, (Doc. 340-1 at 3), and as widely accepted,
Regardless of the form of preclusion applicable, an effective congruence of interest between a former litigant and the present party is required. See, e.g., Taylor, 553 U.S. at 893-96, 128 S.Ct. 2161; Stephens v. Jessup, 793 F.3d 941, 944-45 (8th Cir.2015); Virnich v. Vorwald, 664 F.3d 206, 216 (7th Cir.2011). The reason for this requirement is clear, as "a person who was not a party to a suit generally has not had a full and fair opportunity to litigate the claims and issues settled in that suit." Taylor, 553 U.S. at 892-93, 128 S.Ct. 2161 (internal quotation marks omitted). In Taylor v. Sturgell, at least six relationships were recognized as creating the requisite link by the Supreme Court. Id. at 893-96, 128 S.Ct. 2161. Here, Defendants rely on only two, insisting the US either controlled the Scott Plaintiffs or was "adequately represented" by these private parties.
For two reasons, this Court cannot preclude the US from re-litigating those factual and legal allegations not definitively adjudicated by the Scott court and Defendants' allegedly ongoing noncompliance with the NVRA.
First and foremost, despite the US' obvious interest in the Scott litigation, its involvement was simply too minimal for this Court to conclude that it "assume[d] control over [that] litigation." Montana v. United States, 440 U.S. 147, 154, 99 S.Ct. 970, 974, 59 L.Ed.2d 210, 218 (1979); accord, e.g., Donley v. Hudson's Salvage, LLC, No. 10-3223, 2011 U.S. Dist. LEXIS 136908, at *38-39, 2011 WL 5930473, at *14 (E.D.La. Nov. 29, 2011). "To have control of litigation requires that a person have effective choice as to the legal theories and proofs to be advanced in behalf of the party to the action ... [and] must also have control over the opportunity to obtain review." Freeman v. Lester Coggin Trucking Inc., 771 F.2d 860, 864 n. 3 (5th Cir.1985). A "typical example[ ]" occurs when the nonparty is but the party's alter ego. Dudley v. Smith, 504 F.2d 979, 982 (5th Cir. 1974), cited in Freeman, 771 F.2d at 864; see also Robin Singh Educ. Servs. Inc. v. Excel Test Prep Inc., 274 Fed.Appx. 399, 400 n. 1 (5th Cir.2008).
Beyond this oft-cited example, due to this high standard, only a handful of other examples can be found in the case law. In one famed case — Montana v. United States — the requisite control by the government was indeed found. Montana, 440 U.S. at 155, 99 S.Ct. 970. That finding, however, came only after the United States stipulated that it (1) had required the first lawsuit to be filed, (2) reviewed and approved the complaint, (3) paid the plaintiff's attorneys' fees and costs, (4) directed the appeal from the state district court to the Montana Supreme Court, (5) appeared and submitted a brief as amicus in the Montana Supreme Court, (6) directed the filing of a notice of appeal to the Supreme Court, and (7) effectuated Kiewit's abandonment of that appeal on advice of the Solicitor General. Id. As these and other examples show, decisive evidence of domination over a party's strategy, presentation,
Here, no such overwhelming evidence of the domination required by Montana and its progeny appears in either case's docket. That the US filed a single statement of interest and a single amicus brief and presented a five-minute argument before the Fifth Circuit does not show that it so tightly managed and supervised the Scott Plaintiffs' litigation. Yet, no more than these few facts have been shown. (Doc. 185 at 9-10; see also Doc. 340-1 at 4.) Nor does the unproven allegation that a US attorney observed the Scott proceedings and conferred with counsel for the Scott Plaintiffs throughout trial, (Doc. 185 at 10 n.37; see also Doc. 340-1 at 4), demonstrate that the US dictated these private persons' every move or framed their every argument. See, e.g., United States v. Davis, 906 F.2d 829, 833 (2d Cir.1990). Unlike in Montana, the US did not "require" that the first lawsuit be filed; it did not "review and approve" the complaint; it did not pay attorneys' costs and fees; it did not "direct" the Scott Plaintiffs' appeal to the Fifth Circuit or "direct" the filing of a notice of appeal to the Supreme Court; and it did not "effectuate [the] abandonment" of any such appeal. Montana, 440 U.S. at 155, 99 S.Ct. 970. In Montana, the US stipulated to these pivotal facts; neither here nor before the Scott Court, has it done so.
True, the US' actions do indicate its interest in the Scott Matter and even its hopes for the success of these private actors. However, this fails to prove that the US possessed "effective choice as to the legal theories and proofs to be advanced in behalf of the party to the action." Freeman, 771 F.2d at 864 n. 3; see also Algie v. RCA Global Commc'n, 891 F.Supp. 839, 852 (S.D.N.Y.1994) ("[A] purported controlling non-party must, at least, be able to decide what legal theories and evidence should be advanced in the first action and whether an appeal should be taken from an adverse decision."). Rather, these facts are cumulatively too minor to support preclusion's application, as numerous authorities have recognized. See, e.g., Nat'l Fuel Gas Distrib. Corp. v. TGX Corp., 950 F.2d 829, 839 (2d Cir.1991) (participation as amicus insufficient to demonstrate control under New York law); Va. Hosp. Ass'n v. Baliles, 830 F.2d 1308, 1313 (4th Cir.1987) (observing that a nonparty's "substantial interest in establishing favorable precedent under the doctrine of stare decisis cannot preclude the nonparty from later relitigating issues determined in the prior suit" and adding that "a nonparty is not deemed to have control over litigation simply because he procures witnesses or evidence for a party to the suit" (internal quotation marks omitted); RESTATEMENT (SECOND) OF JUDGMENTS § 39 cmt. c (1983) ("It is not sufficient ... [to prove control] that the person merely contributed funds or advice in support of the party, supplied counsel to the party, or appeared as amicus curia.").
In fact, in the decades since Montana, the Fifth Circuit has not bucked this pattern nor strayed from such a narrow construction. Thus, after enumerating three examples of "necessary" control — "the president and sole shareholder," "parent corporation" which controls its "subsidiary," and "an indemnitor defend[ing] an action against an indemnitee" — the Fifth Circuit once warned: "[L]esser measures of participation without control do not suffice."
Id.; accord, e.g., Hinsley v. Boudloche (In re Hinsley), No. 97-20967, 1998 U.S. App. LEXIS 39954, at *26, 1998 WL 414302, at *9 (5th Cir. July 15, 1998).
Viewed in toto, the facts indicate nothing more than the US' bare interest, the evidence of supposed control presented by Defendants discounted by the Fifth Circuit in its distinct precedents, including Benson & Ford, Inc. v. Wanda Petroleum Company. 833 F.2d at 1174; see also, e.g., Royal Ins. Co. of Am. v. Quinn-L Capital Corp., 960 F.2d 1286, 1297 (5th Cir.1992) (requiring "an express or implied legal relationship between the party and the nonparty "in which [the] party to the first suit [is] accountable to [the] non-party who files a subsequent suit raising identical issues" (alteration in original) (internal quotation marks omitted)). With Defendants having failed to satisfy their heavy burden of demonstrating clear domination as long defined by multiple courts, see, e.g., Terrell v. DeConna, 877 F.2d 1267, 1271 (5th Cir. 1989); Jon Jon's Inc. v. City of Warren, 534 Fed.Appx. 541, 543 (6th Cir.2013); Buck v. Thomas M. Cooley Law Sch., 597 F.3d 812, 816 (6th Cir.2010), this Court finds the conduct by the US in the Scott litigation to be insufficient to trigger preclusion on this basis, cf. Hastings v. Judicial Conf. of U.S., 829 F.2d 91, 101 (D.C.Cir.1987). At best, no more than "participation" has been confirmed, and the requisite "actual control" not shown. See Benson & Ford, Inc., 833 F.2d at 1174; Fitzgibbon v. Martin Cnty. Coal Corp., Civ. No. 05-36, 2007 U.S. Dist. LEXIS 30388, at *23-24, 2007 WL 1231509, at *8-9 (E.D.Ky. Apr. 25, 2007).
Similarly, this Court cannot regard the Scott Plaintiffs as having been the US' "virtual representatives," as Defendants have also repeatedly maintained. As the Supreme Court and Fifth Circuit have stressed, this concept contemplates only a limited set of relationships: estate beneficiaries bound by administrators, presidents and sole stockholders by their companies, parent corporations by their subsidiaries, and a trust beneficiary by the trustee. Taylor, 553 U.S at 895, 128 S.Ct. 2161; Kinnison v. Humana Health Plan of Tex., Inc., Civ.A. No. C-07-381, 2008 U.S. Dist. LEXIS 47289, at *33, 2008 WL 2446051, at *10 (S.D.Tex. June 17, 2008) (summarizing Fifth Circuit jurisprudence). For its part, the Fifth Circuit has stressed that "virtual" or "adequate" representation "demands the existence of an express or implied legal relationship in which parties to the first suit are accountable to nonparties who file a subsequent suit raising identical issues." Freeman, 771 F.2d at 864; see also, e.g., Taylor, 553 U.S. at 904, 128 S.Ct. 2161; Pollard v. Cockrell, 578 F.2d 1002, 1008 (5th Cir.1978); Reneker v. Offill, No. 3:08-CV-1394-D, 2012 U.S. Dist. LEXIS 83017, at *53 n. 17, 2012 WL 2158733, at *16 n. 17 (N.D.Tex. June 14, 2012); Limon v. Berryco Barge Lines, L.L.C., 779 F.Supp.2d 577, 583 (S.D.Tex. 2011). Such representation, it clarified, "requires more than a showing of parallel interests — it is not enough that the non-party may be interested in the same questions or proving the same facts." Eubanks v. Fed. Deposit Ins. Co., 977 F.2d 166, 170 (5th Cir.1992). Just as the Supreme Court
Even when the broadest definition of "virtual representation" is utilized, the US does not fall within it. Obviously, the US was not the Scott Plaintiffs' estate or trust beneficiary or alter ego, and Defendants have yet to allege the existence of such a legal relationship. Furthermore, despite its interest "in the same questions or [in] proving the same facts," Eubanks, 977 F.2d at 170, not a scintilla of evidence suggests that the Scott Plaintiffs were "accountable to" the US for their every move and overall strategy, Freeman, 771 F.2d at 864. Presented with a less than clear doctrine whose capacious construction has been specifically rejected by this nation's highest tribunal, this Court opts to honor preclusion law's underlying principle: "[I]t is a violation of due process for a judgment [in a prior suit] to be binding on a litigant who was not a party or a privy and therefore has never had an opportunity to be heard." Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327 n. 7, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). Thus, as Defendants have failed to prove a sufficiently definite and comprehensive link between the US and the Scott Plaintiffs, the US cannot be precluded from suing Defendants for their noncompliance with the NVRA.
Two more principles favor non-preclusion in this case, further buttressing this Court's preceding analysis. First, as the Supreme Court has recently noted, "[the] development of new material facts can mean that a new case and an otherwise similar previous case do not present the same claim." Whole Woman's Health, 136 S.Ct. at 2305 (citing to THE RESTATEMENT (SECOND) OF JUDGMENTS § 24 cmt. f). As such, "res judicata does not bar claims that are predicated on events that postdate the filing of the initial complaint" in the predecessor case. Morgan v. Covington, 648 F.3d 172, 178 (3d Cir. 2011). As Defendants themselves have admitted, a number of alleged infractions post-date Scott; though derided as "minor" and "isolated," they are still very real. New facts, ones which bear on the resolution of this case's key issues, have emerged in Scott's after-math, and their very existence militates against preclusion's application. See, e.g., Abie State Bank v. Bryan, 282 U.S. 765, 772, 51 S.Ct. 252, 257, 75 L.Ed. 690, 703 (1931); cf. Lawlor v. Nat'l Screen Serv. Corp., 349 U.S. 322, 328, 75 S.Ct. 865, 868, 99 L.Ed. 1122, 1127 (1955). Considering the fact that "[c]hanged circumstances showing that a challenged law has an ... [illegal] effect" defeat preclusion, Whole Woman's Health, 136 S.Ct. at 2306, this Court has this additional reason for denying Defendants' request.
Second, "even when the traditional prerequisites for collateral estoppel are satisfied," a court retains "broad discretion" to decide whether it may be applied. Collins v. D.R. Horton, Inc., 505 F.3d 874, 882 (9th Cir.2007); see also Liberty Life Ins. Co. v. W. R. Grace & Co., No. C/A No. 87-3147-17, 1990 U.S. Dist. LEXIS 20203, at *5-6 (D.S.C. Jan. 16, 1990). In exercising this discretion, a court should permit a party "to relitigate an issue if it is one of law and treating it as conclusively determined would inappropriately foreclose opportunity for obtaining reconsideration of the legal rule upon which it was based." State v. United Cook Inlet Drift Ass'n, 895 P.2d 947 (Alaska 1995) (citing RESTATEMENT (SECOND) OF
Based on the foregoing, this Court declines to permit Defendants to make use of the Scott court's findings against the US. See, e.g., Donovan v. Cunningham, 716 F.2d 1455, 1462-63 (5th Cir.1983) (holding that Secretary of Labor is not bound under doctrine of res judicata by the results of private ERISA litigation because of the Secretary's overriding public interest that is separate and distinct from a private litigant's interests); Herman v. S.C. Nat'l Bank, 140 F.3d 1413, 1424 (11th Cir.1998) (same); Sec. of Labor v. Fitzsimmons, 805 F.2d 682, 687-91 (7th Cir.1986) (en banc) (same).
Invoking the NVRA and the Constitution, LA denies its liability for any statutory infraction. Yet, neither argument can withstand close scrutiny for three reasons.
First, LA misconstrues the NVRA's constitutional basis. As its history attests and as courts have recognized, the NVRA was deliberately and expressly anchored in the Elections Clause. S. REP. No. 103-6 at 2-3; Ass'n of Cmty. Orgs. for Reform Now, 56 F.3d at 793-94; see also supra Part II.B. Its "substantive scope ... broad," its language "embrace[s] authority to provide a complete code for congressional elections...." Arizona v. Inter Tribal Council of Arizona, Inc., ___ U.S. ___, 133 S.Ct. 2247, 2253, 186 L.Ed.2d 239 (2013) (citing Smiley, 285 U.S. at 366, 52 S.Ct. 397); see also Foster v. Love, 522 U.S. 67, 69, 118 S.Ct. 464, 466, 139 L.Ed.2d 369, 373 (1997) ("[I]t is well settled that the Elections Clause grants Congress `the power to override state regulations' by establishing uniform rules for federal elections, binding on the States." (quoting U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 832-33, 115 S.Ct. 1842, 1869, 131 L.Ed.2d 881, 918 (1995))).
This constitutionally bestowed power "is paramount, and may be exercised at any time, and to any extent which it deems expedient; and so far as it is exercised, and no farther, the regulations effected supersede those of the State which are inconsistent therewith." Ex parte Siebold, 100 U.S. 371, 392, 25 L.Ed. 717 (1880). Per the Supremacy Clause, "[a]s long as it is acting within the powers granted it under the Constitution," as it did with the NVRA, "Congress may impose its will on the States." Wyeth v. Levine, 555 U.S. 555, 584, 129 S.Ct. 1187, 1205, 173 L.Ed. 2d 51, 72 (2009). Thus, once Congress enacted the NVRA pursuant to its authority under the Elections Clause, the Eleventh Amendment could no longer immunize a state from any liability.
Second, the Eleventh Amendment does not apply to this particular suit on its own explicit terms. Per this oft-cited provision, "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. CONST. amend. XI. As written and construed, it does not bar suits brought by the United States itself. See, e.g., Alden v. Maine, 527 U.S. 706, 756, 119 S.Ct. 2240, 2267, 144 L.Ed.2d 636, 679 (1999); Arkansas v. Farm Credit Servs., 520 U.S. 821, 826-27, 117 S.Ct. 1776, 1780, 138 L.Ed.2d 34, 40-41 (1997); Arizona v. California, 460 U.S. 605, 614, 103 S.Ct. 1382, 1388, 75 L.Ed.2d 318, 330 (1983). Here, unlike in Scott, the US stands forth as the sole and only plaintiff. (See, e.g., Doc. 1; Doc. 444.) Authorized to vindicate a "fundamental right," 52 U.S.C. § 20501, pursuant to § 20510(a), the US, as a litigant, could never be constricted by the Eleventh Amendment. Cf. Broyles, 618 F.Supp.2d at 699-700.
Of course, had the NVRA been silent as to a state's responsibilities or liability, LA may have been immune from its reach. Having earlier defined "State" as "a State of the United States and the District of Columbia,"
In the context of the NVRA, only one case, promptly reversed, has held differently. Missouri, 535 F.3d at 852 (reversing United States v. Missouri, No. 05-4391-CV-C-NKL, 2006 U.S. Dist. LEXIS 32499, 2006 WL 1446356 (W.D.Mo. May 23, 2006)). Bound by the NVRA's unadorned terms,
Although the NVRA's text demands this result as a matter of supreme federal law, this Court also finds support in Louisiana's "fundamental law," Graham v. Jones, 3 So.2d 761, 795 (La.1941). As a constitutional matter, the SOS is independent of other executive figures, but he (or she) remains an instrumentality of the state itself, LA. CONST. art. IV, §§ 1(A), 7, a not unusual feature of the various state's constitutional systems, see, e.g., Ysursa v. Pocatello Educ. Ass'n, 555 U.S. 353, 362, 129 S.Ct. 1093, 1100, 172 L.Ed.2d 770, 779-80 (2009) ("Political subdivisions of States — counties, cities, or whatever — never were and never have been considered as sovereign entities.... They are instead "subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions." (internal quotation marks omitted). Regardless of Schedler's independence from other officers, he is a creature of the state itself. Cf. Trenton v. New Jersey, 262 U.S. 182, 187, 43 S.Ct. 534, 537, 67 L.Ed. 937, 941 (1923) ("State political subdivisions are merely ... department[s] of the State, and the State may withhold, grant or withdraw powers and privileges as it sees fit."). The NVRA does indeed contain a "centralized requirement under the NVRA that one person respond and be responsible," (Hr'g Tr. 8:19-23), but under Louisiana law, the State is the ultimate sovereign here — and thus a proper defendant under the NVRA. Like so many other officials and agents, the SOS is but a "creature of the State exercising and holding powers and privileges subject to the sovereign will." Trenton, 262 U.S. at 187, 43 S.Ct. 534.
Pursuant to Article III of the Constitution, a federal court's jurisdiction is limited to live cases or controversies. U.S. CONST. art. III, § 2; Tex. Office of Pub. Util. Counsel v. F.C.C., 183 F.3d 393, 413 n. 16 (5th Cir.1999) (quoting North Carolina v. Rice, 404 U.S. 244, 245-46, 92 S.Ct. 402, 404, 30 L.Ed.2d 413, 415 (1971)). A "live" (or "justiciable")
Since correction of a prior and illegal practice may dissolve a parties' conflict, such cessation may occasionally moot an otherwise active case. Despite this principle, however, "[w]hen defendants are shown to have settled into a continuing practice ... courts will not assume that it has been abandoned without clear proof," for "[i]t is the duty of the courts to beware of efforts to defeat injunctive relief by protestations of repentance and reform." United States v. Or. State Med. Soc'y., 343 U.S. 326, 333, 72 S.Ct. 690, 96 L.Ed. 978 (1952); see also City News & Novelty v. City of Waukesha, 531 U.S. 278, 284 n. 1, 121 S.Ct. 743, 747 n. 1, 148 L.Ed.2d 757, 763 n. 1 (2001) ("[A] party should not be able to evade judicial review, or to defeat a judgment, by temporarily altering questionable behavior."). This reluctance must be most marked, the Supreme Court has warned, "when abandonment seems timed to anticipate suit, and there is probability of resumption." Or. State Med. Soc'y., 343 U.S. at 333, 72 S.Ct. 690; see also Hernandez v. Cremer, 913 F.2d 230, 235 (5th Cir.1990) ("[V]oluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot." (internal quotation marks omitted)).
Guided by the "general rule that voluntary cessation of a challenged practice rarely moots a federal case," City News & Novelty, 531 U.S. at 284 n. 1, 121 S.Ct. 743, mootness bars nothing here. Even if this Court was to adopt Defendants' broad reading of Scott, the evidence adduced by the US and conceded by Defendants leaves no question about the continued existence of "definite and concrete" disputes. In the Complaint, the US has alleged a series of actions by Defendants that either post-date the First Injunction or were not litigated before the Scott Court. (See, e.g., Doc. 1; see also, e.g., Doc. 346.) True, Defendants may be unpersuaded at this evidence; true, a future factfinder may agree; but both the allegations as well as the evidence proffered in support of the MSJ affirm the reality of a dispute neither academic nor hypothetical.
In this regard, the US does not stand alone, as Defendants themselves have made two important concessions. First, they have repeatedly admitted that "isolated" and "discrete" acts of noncompliance continue to occur in spite of the First and Amended Injunctions. (See, e.g., Doc. 398 at 7; Doc. 399 at 7; Doc. 402 at 6, 12; Doc. 407 at 7-8, 16-17.) To DCFS and DHH, these events appear insignificant. (See, e.g., Doc. 398 at 7; Doc. 399 at 7; Doc. 402 at 6, 12; Doc. 407 at 7-8, 16-17.) Still, even minor violations of the NVRA remain statutory infractions sufficient to trigger a live dispute over their significance, regardless of whether a "reasonable" or "full" compliance standard is utilized, see infra Part V.C. Second, as DHH and DCFS have again admitted, at least four VRAs were "not consistently providing voter registration with each application" as required by the NVRA and were not at issue in Scott. (Doc. 398 at 9-12; Doc. 399 at 9-12.) That the Scott Court required that DCFS and DHH certify their every program's compliance with the NVRA does not change this admitted fact's patent import: the US is now suing Defendants for existing and arguably ongoing violations that, by Defendants' own admission, were never resolved in the Scott Matter. Accordingly, because this suit involves at least some NVRA violations never previously addressed,
In point of fact, the Fifth Circuit's reversal and remand of the Amended Injunction only supports this inference, as its binding edict has determined that the phrase "policies, procedures, and directives," (Doc. 437, No. 2:11-cv-00926-JTM-JCW), upon which Defendants so heavily rely as encompassing any and all possible programs, (See, e.g., Doc. 398), is not specific enough to reasonably measure at least one defendant's adherence to the NVRA. Scott, 826 F.3d at 212-13, 2016 U.S. App. LEXIS 10919, at *14-15, 2016 WL 3345277, at *4.
Further strengthening this conclusion, a particular exception to the mootness doctrine bears special relevance to this proceeding. Generally, "[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief." Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675, 684 (1983) (internal quotation marks omitted) (citing O'Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 676, 38 L.Ed.2d 674, 683 (1974)), cited in Gratz v. Bollinger, 539 U.S. 244, 123 S.Ct. 2411, 2435, 156 L.Ed.2d 257, 290 (2003). However, an exception has long been recognized if a dispute is capable of repetition or "any continuing, present adverse effects" can be pinpointed. See, e.g., Renne v. Geary, 501 U.S. 312, 320-21, 111 S.Ct. 2331, 2338, 115 L.Ed.2d 288, 301 (1991). In such cases, past wrongs can be reconsidered as evidence bearing on "whether there is a real and immediate threat of repeated injury." L.A., 461 U.S. at 102, 103 S.Ct. 1660 (citing O'Shea, 414 U.S. at 496, 94 S.Ct. 669); see also Blinder, Robinson & Co. v. S.E.C., 692 F.2d 102, 106-07 (10th Cir.1982) (holding that a defendant contending that a plaintiff has no cause of action because of the defendant's new behavior "must meet a heavy burden of demonstrating that there is no reasonable expectation that the alleged wrongs will be repeated"(quoting United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303, 1309 (1953))).
Consequently, assuming its predicates are met, no case involving a dispute "capable of repetition" will be deemed moot. See, e.g., Arcia, 772 F.3d at 1343 (internal quotation marks omitted) (relying on Davis v. FEC, 554 U.S. 724, 735, 128 S.Ct. 2759, 2769-70, 171 L.Ed.2d 737, 749 (2008)); see also, e.g., Vieux Carre Prop. Owners v. Brown, 948 F.2d 1436, 1447 (5th Cir.1991) (holding that, under this exception, "[a]lthough a case may be technically moot, a federal court may nevertheless retain jurisdiction if a continuing controversy exists or if the challenged problem is likely to recur or is otherwise capable of repetition."). "Election cases also frequently present issues that will persist in future elections," one court has explained, and such cases often require this exception's invocation so as to secure "the fundamental right," 52 U.S.C. § 20501(a)(1), protected by the NVRA. Arcia, 772 F.3d at 1343.
Naturally, when parties actively dispute a certain law's reach, repetition is more likely. Just as logically, "where the challenged conduct is a failure to act, it is difficult to determine with precision whether future conflicts will run their courses before being fully litigated, because the duration of the controversy is solely within the control of the defendant." Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1174 (9th Cir.2002). In such cases, the second prong to this exception — "evading review" — is satisfied. Id.
In short, due to the repeatability of the purportedly illegal conduct alleged by the US, the importance accorded to the right at issue, and Defendants' admissions of ongoing, if arguably minor, noncompliance despite the entering of two separate injunctions by another district court, the law's longstanding exception for activities capable of repetition governs. See, e.g., Friends of the Earth, Inc. v. Laidlaw, 528 U.S. 167, 190, 120 S.Ct. 693, 709, 145 L.Ed.2d 610, 633 (2000) (elaborating the following example: "When ... a mentally disabled patient files a lawsuit challenging her confinement in a segregated institution, her postcomplaint transfer to a community-based program will not moot the action"); ProtectMarriage.com-Yes on 8 v. Bowen, 752 F.3d 827, 836 (9th Cir.2014) ("[W]here a purportedly invalid law inhibits a political candidate or party's ability to win an election, we can only remedy that impediment before the election occurs.").
To the SOS, one case — Sossamon v. Lone Star State of Tex., 560 F.3d 316 (5th Cir.2009) — negates this exception's application. According to their presentation, Sossamon, which "dealt with a change of behavior on the part of a public agency," "created an exception to the Friend of the Earth [or Laidlaw] Rule about voluntary cessation of conduct when the case involves a public entity." (Hr'g Tr. 27:21-28:6.) True, as Defendants note, per Sossamon, "courts are justified in treating a voluntary governmental cessation of possibly wrongful conduct with some solicitude, mooting cases that might have been allowed to proceed had the defendant not
Schedler, however, has overstated this case's rather narrow holding. First, while the Fifth Circuit encouraged the display of "some solicitude" and recognized this rule's validity, this "presumption of good faith" is applicable only "[w]ithout evidence to the contrary." Sossamon, 560 F.3d at 325; see also Ragsdale v. Turnock, 841 F.2d 1358, 1365 (7th Cir.1988) ("[S]uch self-correction [by a government defendant] provides a secure foundation for a dismissal based on mootness so long as it appears genuine." (emphasis added)). By any measure, "some solicitude" is not the same as absolute deference to a state and an ironclad exemption based on a profession of good faith, and far more than a modicum of "evidence to the contrary" populates this matter's docket, see supra Part II.C. Indeed, even Sossamon's lighter burden requires the public entity "to make `absolutely clear' that the ... [illegal] condition cannot `reasonably be expected to recur'." Id.; see also, e.g., Hornbeck Offshore Servs. L.L.C. v. Salazar, Civ. No. 10-1663 Section "F", 2010 U.S. Dist. LEXIS 98309, at *18, 2010 WL 3523040, at *5 (E.D.La. Sept. 1, 2010) (Under Sossamon, "where the defendant's voluntary conduct is at issue, a case can only be found moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." (internal quotation marks omitted)).
In this case, though derided as isolated and minor, familiar NVRA violations have reoccurred, and discrete and new legal harms have been exacted by Defendants' own admissions. See supra Part II.C.a. In addition, no such "voluntary cessation" occurred here, as every Defendant's compliance post-dates the inauguration of the Scott Matter. In this regard, Schedler's recent position before the Fifth Circuit cannot be ignored, for his own apparent inability to identify every "policy" and "procedure" encompassed by the Amended Injunction leaves this Court unable to assume that the kind of genuine and concrete change required by the NVRA could have taken place.
In his MSJ, Schedler urges this Court to read § 20503(a) as constricting the scope of § 20506.
In point of fact, however, Section 7's unambiguous import can be discerned by use of ordinary tools of interpretation. See, e.g., Ga. State Conf. of N.A.A.C.P., 841 F.Supp.2d at 1329; cf. Moskal, 498 U.S. at 108, 111 S.Ct. 461 (emphasizing language's "inherently contextual" character). Obligated to apply the plain and unambiguous meaning of Section 7 that best comports with the NVRA's overall statutory design, this Court favors "[a] straightforward interpretation of the provision [that] makes sense of the language," United States v. Shurtz, 510 F.3d 1242, 1244 (10th Cir. 2007). Accordingly, it rejects Schedler's attempted revision.
In this analysis, this Court adheres to four interpretive principles. First, it "must read the statute as a whole, so as to give effect to each of its provisions without rendering any language superfluous." Bustamante-Barrera v. Gonzales, 447 F.3d 388, 397 (5th Cir.2006). Second, "identical words used in different parts of the same act" are deemed to possess "the same meaning." Sullivan v. Stroop, 496 U.S. 478, 484, 110 S.Ct. 2499, 2504, 110 L.Ed.2d 438, 446 (1990). Conversely, "[c]ourts often say that the choice of different words reflects an intent to say something different." United States v. Poff, 926 F.2d 588, 591 (7th Cir.1991); see also, e.g., Energy Research Found. v. Def. Nuclear Facilities Safety Bd., 917 F.2d 581, 583 (D.C.Cir.1990) ("[W]hen Congress employs the same word, it normally means the same thing, when it employs different words, it usually means different things." (quoting Henry J. Friendly, Mr. Justice Frankfurter and the Reading of Statutes, in BENCHMARKS 224 (1967))); cf. Samantar v. Yousuf, 560 U.S. 305, 317, 130 S.Ct. 2278, 2288, 176 L.Ed.2d 1047, 1062 (2010) ("Drawing meaning from silence is particularly inappropriate ... [when] Congress has shown that it knows how to [address an issue] in express terms." (alteration in original) (quoting Kimbrough v. United States, 552 U.S. 85, 103, 128 S.Ct. 558, 571, 169 L.Ed.2d 481, 485 (2007))). Third, a proviso can "only operate within the reach of the principal provision it modifies," and "a modifier at the beginning or end of a series of terms" does normally modify all terms. Cnty. of Yakima v. Confederated Tribes & Bands of Yakima Indian Nation, 502 U.S. 251, 262, 112 S.Ct. 683, 690, 116 L.Ed.2d 687 (1992); United States v. Laraneta, 700 F.3d 983, 989 (7th Cir.2012). Fourth (and relatedly), "the scope of a subpart" is "[o]rdinarily ... limited to that subpart," as "it is a commonplace of statutory construction that the specific governs the general." Lary v. Trinity Physician Fin. & Ins. Servs., 780 F.3d 1101, 1105-06 (11th Cir.2015); see also, e.g., RadLAX Gateway Hotel LLC v. Amalgamated Bank, 566 U.S. 639, 132 S.Ct. 2065, 2071, 182 L.Ed.2d 967 (2012) (so stating and underlining that this obligation is particularly strong whenever "Congress has enacted a comprehensive scheme and has deliberately targeted specific problems with specific solutions" (internal quotation marks omitted)); cf. Fitzgerald v. Barnstable
Once these tools are applied, the text and structure of the NVRA compel a specific understanding of Section 7(a)(6), the one advanced by the US. Undeniably, Section 4 sets forth the states' "general" responsibilities and, in relevant part, only requires a state to establish "procedures to register to vote ... by application in person" at the VRAs. 52 U.S.C. § 20503(a) (emphasis added). Just as surely, Section 7(a)(4) lists three services that must be available "[a]t each" VRA. Id. § 20506(a)(4) (emphasis added). The word "at," one court has observed, is "used as a function word to indicate presence or occurrence in, on, or near," so that Section 7(a)(4) may rightly be read as "indicat[ing] that Congress intended for the[ ] three services [specified therein] to be made available at the physical location of the voter registration agency." Ferrand v. Schedler, 2012 U.S. Dist. LEXIS 61862, at *23, 2012 WL 1570094, at *8 (E.D.La. May 3, 2012). Read in conjunction, Sections 4(a)(3) and 7(a)(4) quite plainly contain only two requirements. First, as indicated by a single explicit phrase — "in person" — each VRA must have procedures for in-person application in accordance with Section 4(a)(3); second, as implicit in its prefatory phrase — "At each ..." — each VRA office must make available the three services enumerated in Section 7(a)(4). 52 U.S.C. §§ 20503(a)(3), 20506(a)(4)(A). In short, the "at" in Sections 4(a)(4)(A) and 7(a)(4) expresses "the simple relation of a thing to a point of space which it touches" or, in other words, "the place where it is," while "in person" bears a similar connotation: "with or by one's own ... physical presence, personally." At, In Person, OXFORD ENGLISH DICTIONARY ONLINE (May 2016); accord OXFORD ENGLISH DICTIONARY 738-39 (2d ed. 1989); Simien v. I.R.S, No. 05 CV 1458, 2007 U.S. Dist. LEXIS 7043, at *11, 2007 WL 324605, at *4 (W.D.La. Jan. 31, 2007) (noting that the phrase "in person" is susceptible of several meanings and "synonymous with `personally'"); Calafati v. Comm'r, 127 T.C. 219, 226 (T.C. 2006) (noting that the term "in-person" is generally defined as "in one's bodily presence" by various dictionaries).
Necessarily, therefore, this choice of prepositions and prepositional phrases is decisive and restrictive, and these paragraphs' unvarnished text thus establishes physical presence as these provisions' critical requirement. See, e.g., Reiter v. Sonotone Corp., 442 U.S. 330, 338-39, 99 S.Ct. 2326, 2331, 60 L.Ed.2d 931, 937 (1979) (refusing to adopt a "strained" construction that would "rob" two terms of their "independent and ordinary significance"); United States v. Nader, 542 F.3d 713, 718 (9th Cir.2008) ("A prepositional phrase with an adverbial or adjectival function should be as close as possible to the word it modifies to avoid awkwardness, ambiguity, or unintended meanings." (quoting THE CHICAGO MANUAL OF STYLE ¶ 5.167 (15th ed. 2003))); Rosenruist-Gestao E Servicos LDA v. Virgin Enters., 511 F.3d 437, 452 (4th Cir.2007) (Wilkinson, J., dissenting) ("[C]ourts cannot interpret one word in a prepositional phrase and ignore another."); cf., e.g., Russell Motor Car Co. v. United States, 261 U.S. 514, 519, 43 S.Ct. 428, 430, 67 L.Ed. 778, 782 (1923) ("That a word may be known by the company it keeps is, however, not an invariable rule, for the word may have a character of its own not to be submerged by its association."); United States v. Cunningham, 630 Fed. Appx. 873, 878 n. 6 (10th Cir.2015) (according controlling weight to the Colorado legislature's
Textually, Section 7(a)(6), the one provision at issue in the Parties' dispute over the NVRA's coverage of remote transactions, differs from Sections 4(a)(3) and 7(a)(4). As already discussed, each of the latter sections contains the phrase "in person" or "at each ...," and no reasonable linguistic debate beclouds these phrases' ordinary meanings. Cf., e.g., Muscarello v. United States, 524 U.S. 125, 127-132, 118 S.Ct. 1911, 1914-17, 141 L.Ed.2d 111, 115-18 (1998) (considering the "ordinary English meaning" of a particular phrase), superseded by statute, Pub. L. No. 105-316, 112 Stat. 3469 (1998), as recognized in Sylvester v. United States, Nos. 08 Civ. 3222 (LMM), 05 Cr. 849 (LMM), 2008 U.S. Dist. LEXIS 96990, at *7 n. 4, 2008 WL 4962984, at *3 n. 4 (S.D.N.Y. Nov. 17, 2008); Nw. Forest Resource Council v. Glickman, 82 F.3d 825, 833 (9th Cir.1996) ("Where a statutory term is not defined in the statute, it is appropriate to accord the term its ordinary meaning." (internal quotation marks omitted)). Physical presence is their shared requirement, as their plain language naturally connotes.
In contrast, unlike Section 4(a)(3) and Section 7(a)(4), Section 7(a)(6) contains neither the phrase "in person" nor the preposition "at." 52 U.S.C. § 20506(a)(6); see also Ferrand, 2012 U.S. Dist. LEXIS 61862, at *23-24, 2012 WL 1570094, at *8. Instead of conditioning the provision of voter registration aid on an applicant's presence "at" a certain location, as the other provisions had expressly done, it assigns each VRA the responsibility of distributing a voter registration form with "each application for ... service or assistance." 52 U.S.C. 20506(a)(6). In other words, though it did so in the NVRA's other parts, "Congress did not impose express locational or in-person limitations on the mandates of Section 7 paragraph (a)(6)." Ga. State Conf. of N.A.A.C.P., 841 F.Supp.2d at 1331. Prepositions, i.e. "at," and phrases requiring a physical presence, i.e. "in person," had been used in the NVRA's other sections, but not one such identical or similar expression appears in the whole of Section 7(a)(6). Having inserted language necessarily indicative of a personal and physical prerequisite not only in a separate section (§ 4(a)) but also in another subsection (§ 7(a)(4)), Congress' knowing capacity to do the same in the latter section's sixth paragraph cannot be reasonably questioned. Cf. Delgado, 2014 U.S. Dist. LEXIS 33476, at *35, 2014 WL 1004108, at *11 ("The parties do not dispute that the NVRA has a completely distinct set of requirements for the RMV, which do not reflect on the requirements for public assistance agencies.").
Due to this patent fact — that at least two other sections of the same statute included language establishing locational limitations on a particular duty by certain VRAs — this Court is "bound to respect these different treatments," "limiting the applicability of" Section 4(a)(3) and 7(a)(4) and "declining to infer a limit where Congress chose not to include one" in Section 7(a)(6). Ga. State Conf. of N.A.A.C.P., 841 F.Supp.2d at 1331; see also, e.g., King v. St. Vincent's Hosp., 502 U.S. 215, 222, 112 S.Ct. 570, 575, 116 L.Ed. 2d 578, 587-88 (1991); Zabielski v. Montgomery Ward & Co., 919 F.2d 1276, 1279 (7th Cir.1990). Significantly, this result aligns with the logic adopted by the Fifth Circuit in its Schedler opinion: by declining to construe an explicitly inputted phrase — "at each voter registration agency" — as irrelevant where it appears, it avoids introducing an inconsistency into the Act. See Scott, 771 F.3d at 840-41.
Three other textual characteristics of Section 7(a)(6) specifically and the NVRA as a whole support this interpretation.
However, as a structural matter, Section 7(a)(6) is neither a subsection nor a subpart of either provision. Therefore, it should not and cannot be subsumed into visibly distinguishable parts of the NVRA. See, e.g., Pirani v. Baharia (In re Pirani), 824 F.3d 483, 495-96, 2016 U.S. App. LEXIS 9730, at *19-20, 2016 WL 3063261, at *6 (5th Cir.2016); Scherer v. Volusia Cnty. Dep't of Corr., 171 So.3d 135, 138 (Fla.Ct. App.2015); Lary, 780 F.3d at 1105-06; SCALIA & GARNER, supra, at 156. This is especially true when the NVRA's complexity and comprehensiveness indicates Congress' vigilant and meticulous drafting. Cf., e.g., RadLAX Gateway Hotel LLC, 132 S.Ct. at 2071 (emphasizing that the Bankruptcy Code, "standardizes an expansive (and sometimes) unruly area of law" and thus underscoring the judiciary's "obligation to interpret the Code clearly and predictably using well established principles of statutory construction"); United States v. Ron Pair Enters., 489 U.S. 235, 240-41, 109 S.Ct. 1026, 1030-31, 103 L.Ed.2d 290, 298-99 (1989) (emphasizing similar concerns and deriving a similar obligation); McMillan v. Maestri (In re McMillan), 543 B.R. 808, 815 (Bankr. N.D.Tex.2016) (refusing to import language from one subsection into another of 11 U.S.C. § 303, effectively rewriting the statute, as it would tinker with a "comprehensive remedial scheme"). Bound by such "well-established principles of interpretation," Stafford v. Scottsdale Ins. Co., 416 Fed.Appx. 191, 194 (3d Cir.2010), this Court will not reorder Congress' selected priority scheme by subsuming an independent subsection into a coequal provision, i.e. Section 7(a)(4)(A), or into a wholly distinct part, i.e. Section 4(a)(3). Cf., e.g., Vanderbrook v. Unitrin Preferred Ins. Co. (In re Katrina Canal Breaches Litig.), 495 F.3d 191, 219 (5th Cir.2007).
Second, Section 7(a)(6) characterizes its obligations as "in addition" to any others imposed by the NVRA and specifies a series of duties that arise from "each application" and thus every transaction. 52 U.S.C. § 20506(a)(6). In other words, no physicality limitation, such as "each application... submitted in person or at the voter registration agency," appears in this section. Id. The inclusion of this phrase and this subsection's reference to "each application" evidences a sure intent: "[W]hile all voter registration agencies are required under Section 7(a)(4) to make basic voter registration services available" at their physical location, "Section 7(a)(6) articulates an additional set of obligations that mandatory public assistance offices owe to their clients during every transaction." Ferrand, 2012 U.S. Dist. LEXIS 61862, at *26, 2012 WL 1570094, at *9. Once more, the language requires as much, since "in addition" specifically means "as an extra or additional thing [ ]to something else[ ]." In addition, OXFORD ENGLISH DICTIONARY ONLINE (emphasis added).
If this Court decided differently, as Defendants now urge, it would once more effectively amalgamate separate sections and thereby "rob" varied words and phrases of their distinct import, Reiter, 442 U.S. at 338-39, 99 S.Ct. 2326. This Court did not so treat "in person" or "at each." For
Finally, as its first two words announce, Section 4(a) sets forth the states' "general" obligations. 52 U.S.C. § 20503(a). Subsequent sections, such as Sections 5 and 6, provide a far more specific set of obligations. In such cases, especially considering the other textual differences already noted, jurisprudence compels this Court to honor Section 7's specific language and hold the NVRA to cover what its text also commands: remote transactions. See, e.g., RadLAX Gateway Hotel LLC, 132 S.Ct. at 2071 (concluding that "nothing in ... [a] generalized statutory purpose ... can overcome the specific manner of that protection which the [relevant] text ... contains"). To conclude otherwise would require this Court to override the enacted text's explicit terms and express structure, a task beyond its powers. See, e.g., Ron Pair Enters., 489 U.S. at 240-41, 109 S.Ct. 1026 (refusing to consider purpose or history when the language "express[ed] Congress' intent" with "sufficient precision" and was supported by the statute's "grammatical structure").
Under modern jurisprudence, if a statute's text is plain and unambiguous,
As the NVRA's second section declares and as the legislative history attests, its primary purpose was to "increase the number of eligible citizens" to register to vote. 52 U.S.C. § 20501(b)(1)-(2); H.R. REP. No. 103-9, at 2; S. REP. No. 103-6, at 13; see also supra Part II.B. Historically, "[r]egistration rules were introduced in most states in the latter part of the 19th Century as a means of enforcing voting requirements in response to immigration, urbanization, and, in the South, the enfranchisement of African-Americans under the Fifteenth Amendment to the U.S. Constitution." R. S. Montjoy, The National Voter Registration Act of 1993, 5 S.C. POLICY FORUM 4, 7 (1994). With the NVRA, Congress addressed this past by attempting to ensure (1) that no state would be able to restrict its agency registration program, and (2) that all states would have an agency registration program that would not discriminate against a distinct portion of the population. H.R. CONF. REP. No. 103-66, at 19 (1993). With this end in mind, Section 7 was designed so as to increase registration of "the poor and persons with disabilities who do not have driver's licenses and will not come into contract with the other princip[al] place[s] to register under this Act." Id. Registration accuracy was an explicitly stated goal of the NVRA,
Without any textual foundation, see supra Part V.B.2, restricting the reach of Section 7(a)(6) to only in-person transactions would directly undermine this aim's realization. If this Court now adopts the SOS' current reading, voting registration opportunities would suddenly be limited to in-person visits in a world in which many applications for services and public assistance occur online or by telephone. See U.S. ELECTION ASSISTANCE COMM'N, 2012 STATUTORY OVERVIEW REPORT 23 (1993); U.S. ELECTION ASSISTANCE COMM'N, THE IMPACT OF THE NATIONAL VOTER REGISTRATION ACT OF 1993 ON THE ADMINISTRATION OF ELECTIONS FOR FEDERAL OFFICE 2011-2012: A REPORT TO THE 113TH CONGRESS 7 (1993). Conversely, a construction of Section 7(a)(6) which encompasses remote transactions better comports with this objective, maximizing opportunities for voter registration in this more virtual world. Ga. State Conf. of N.A.A.C.P., 841 F.Supp.2d at 1331-32; cf. Ortiz, 28 F.3d at 339 ("During the debates,
As a final argument against this reading, the SOS emphasizes its absurdity and impracticality. (See, e.g., Doc. 336-5 at 12.) True, "[t]he plain meaning of legislation should be conclusive, except in the rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters." Ron Pair, 489 U.S. at 242, 109 S.Ct. 1026 (alterations in original) (internal quotation marks omitted). However, "when words have a clear definition, and all other contextual clues support that meaning, the canons cannot properly defeat Congress's decision to draft broad legislation." Yates v. United States, ___ U.S. ___ ___, 135 S.Ct. 1074, 1097, 191 L.Ed.2d 64, 92 (2015). The result may be harsh or illogical and even impose expensive burdens on the unsuspecting, as the NVRA arguably does, see CROCKER, supra, at 7-8. Even so, the plain text must govern, see, e.g., Lamie, 540 U.S. at 538, 124 S.Ct. 1023; Cent. Trust Co., 454 U.S. at 360, 102 S.Ct. 695, and the imposition of an onerous obligation cannot meet the high threshold for disregarding the purportedly costly "import of Congress' chosen words," Lamie, 540 U.S. at 538, 124 S.Ct. 1023. See, e.g., SCALIA & GARNER, supra, at 234-39; Iselin v. U.S., 270 U.S. 245, 251, 46 S.Ct. 248, 70 L.Ed. 566 (1926); Owner-Operator Indep. Drivers Ass'n v. Mayflower Transit, LLC, 615 F.3d 790, 792 (7th Cir.2010); Spivey v. Vertrue, Inc., 528 F.3d 982 (7th Cir.2008). As the Seventh Circuit has well explained, "[t]he [absurdity] canon is limited to solving problems in exposition, as opposed to the harshness that a well-written but poorly conceived statute may produce"; "[o]therwise judges would have entirely too much leeway to follow their own policy preferences by declaring that the legislative choice is harsh or jarring." United States v. Logan, 453 F.3d 804, 806 (7th Cir.2006); see also, e.g., ADRIAN VERMEULE, JUDGING UNDER UNCERTAINTY 57-59 (2006); John Manning, The Absurdity Doctrine, 116 HARV. L. REV. 2387 (2003). On more than one occasion, the SOS has urged this Court not to rewrite the NVRA.
At the same time, this Court rejects the US' mootness argument. (Doc. 382 at 2-6; see supra Part III.D.) Presently, the US contends the SOS has conceded this point based on the McRitchie Deposition. (Id.) But, Defendants contest this fact, and this Court will not now disregard this decisively obvious disagreement. (See Doc. 395 at 3-8.) The fact that various state entities have previously conceded the applicability of the NVRA to remote transactions, moreover, cannot moot this issue of statutory interpretation. Whatever his agency has previously averred, the SOS now declares differently, (Doc. 336-5 at 8-13), joined by DCFS and DHH, (See, e.g., Doc. 38 at 12-13). Thus, the dispute is real, the stakes clear, with Defendants determined to defy the US' construal of the exact same statute. Here, because "the relief sought would, if granted, make a difference to the legal interests of the parties," this case cannot be regarded as moot. See, e.g., Air Line Pilots Assn., Int'l v. UAL Corp., 897 F.2d 1394, 1396 (7th Cir.1990) (relying on North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413, 415 (1971)); see also, e.g., Nasatka v. Delta Scientific Corp., 58 F.3d 1578, 1580-81 (Fed.Cir.1995); Flagstaff Med. Ctr., Inc. v. Sullivan, 962 F.2d 879, 884 (9th Cir.1992).
Three separate issues are raised by the US' MSJ and Defendants' responses. First, Defendants argue that the NVRA requires no more than "reasonable effort[s]" at achieving "substantial compliance," while the US points to an absence of statutory support for this standard. Second, both DCFS and DHH insist on their absence of liability for any NVRA-violations by any LGE; naturally, the US disagrees. Third, as res judicata precludes Defendants from re-litigating the factual and legal determinations made by the Scott Court and with its recently discovered evidence indicating Defendants' past and ongoing noncompliance, the US argues that Rule 56 demands judgment in its favor. Defendants, of course, disagree. This Court considers each argument in order.
Section 7(a)(6) speaks without qualification and ambiguity as to a state's discrete responsibilities. It reads:
52 U.S.C. § 20506(a)(6)(A)-(C); Valdez, 676 F.3d at 944. Section 11 grants the US
With ease, Congress could have modified the verbs "distribute" and "provide" in § 20506(a)(6) with the adverb "reasonably" or predicate liability on substantial noncompliance. In fact, it has done precisely this in dozens of statutes. See, e.g., 10 U.S.C. § 2684a(d)(7) ("substantially comply"); 11 U.S.C. § 523(c)(2) ("reasonably comply"); 12 U.S.C. § 1703(e) ("substantially complied with such regulations in good faith"); 15 U.S.C. §§ 634(f)(1)(A) ("substantially complied"); 16 U.S.C. § 1371(a)(5)(B)(i) ("substantially complied"); 42 U.S.C. §§ 254c-6(a)(3)(A)(iii) ("reasonable efforts"), 609(a)(8)(A)(i)(III) ("substantially comply"); 44 U.S.C. § 3507(j)(1)(B) ("reasonably comply"). Indeed, it even did so in Section 8 of the NVRA. 52 U.S.C. § 20507(a)(4); Velez, 813 F.3d at 10 n. 14.
But, in Section 7(a)(6) of the NVRA, no such precise language or even tangential synonym appears. Cf. United States v. Agrawal, 726 F.3d 235, 261 (2d Cir.2013) (concluding that when, "in numbered subsections, the statutory text so exhaustively details the means by which theft can be committed that one can only conclude that Congress intended the means provisions of the ... [Economic Esponiage Act] to reach as broadly as human ingenuity could conceive to accomplish theft").
From the NVRA's text, then, two conclusions follow. First, Congress inputted a "reasonable effort" standard in another section of the same law; second, it has regularly placed such standards in sundry laws, including the NVRA's eighth section, when inclined to do so, rather than relying upon the federal courts to discern or construct such a standard in stray bits of inherently problematic legislative history. Therefore, as precedent demands, the absence of any such mitigating language in Section 7(a)(6), the provision germane to this suit, must be deemed deliberate, and Congress' choice not to inscribe such familiar and common terms must be accorded absolute deference. See, e.g., BFP v. Resolution Trust Corp., 511 U.S. 531, 537, 114 S.Ct. 1757, 1761, 128 L.Ed.2d 556, 563 (1994); Gregory v. Ashcroft, 501 U.S. 452, 467, 111 S.Ct. 2395, 2404, 115 L.Ed.2d 410, 428 (1991); W. Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 100-01, 111 S.Ct. 1138, 1148, 113 L.Ed.2d 68, 84-85 (1991); Miller, 394 F.2d at 350. Otherwise, a court would have denuded those qualifiers of significance and, by rendering Congress' chosen language superfluous, flout its burden to accord any possible and reasonable weight to a statute's every word. Negonsott v. Samuels, 507 U.S. 99, 106, 113 S.Ct. 1119, 1149, 122 L.Ed.2d 457 (1993); see also, e.g., Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 112, 111 S.Ct. 2166, 2171-72, 115 L.Ed.2d 96 (1991); United States v. Aleynikov, 676 F.3d 71, 81 (2d Cir.2012). No such interpretive feat is permitted, as a court cannot use the canons "to import" rather than "remove" ambiguity where "the meaning of the [relevant] words considered severally is not in doubt." Russell Motor Car Co., 261 U.S. at 520, 43 S.Ct. 428.
In accordance with these precepts, and in light of the NVRA's plainness, this Court reads Section 7 to prescribe strict compliance with its commands, finding no support for any other standard in the NVRA's plain and unambiguous language. Cf., e.g., Marseilles Homeowners Condo. Ass'n v. Fid. Nat'l Ins. Co., 542 F.3d 1053, 1056 (5th Cir.2008) (rejecting a plaintiff's "theory of substantial compliance" as
Conceding the absence of such qualifiers as "reasonable" or "substantial," Defendants direct this Court both to snippets within the NVRA's legislative history and to the narrow ambit of the First Injunction. (See, e.g., Doc. 398 at 5-6; Doc. 399 at 5-6.) However, their reliance on these sources is insupportable for two reasons. First, as Defendants themselves argued as to the relationship between Sections 4 and 7, see supra Part V.B. courts may not "resort to legislative history to cloud a statutory text that is clear," Ratzlaf v. United States, 510 U.S. 135, 147-48, 114 S.Ct. 655, 662, 126 L.Ed.2d 615, 626 (1994), rev'd on other grounds; see also, e.g., Davis v. Michigan Dept. of Treasury, 489 U.S. 808, 808-09 n. 3, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989) ("Legislative history is irrelevant to the interpretation of an unambiguous statute.").
Here, Section 7(a)(6) does not establish "reasonable effort" or "substantial compliance" as sufficient. Such language is not in the statute; nothing within the NVRA's thirteen sections disturbs this pregnant silence. See, e.g., Abrego v. Dow Chem. Co., 443 F.3d 676, 683 (9th Cir.2006) ("[C]onsideration of legislative history is appropriate where statutory language is ambiguous" and differentiating between "ambiguity" and "silence"); Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 448 (7th Cir. 2005) ("[W]hen the legislative history stands by itself, as a naked expression of `intent' unconnected to any enacted text, it has no more force than an opinion poll of legislators."); Kearns v. Ford Motor Co., No. CV 05-5644 GAF (JTLx), 2005 U.S. Dist. LEXIS 41614, at *12, 2005 WL 3967998, at *4 (C.D.Cal. Nov. 21, 2005) ("Silence on ... [an] issue does not equate to ambiguity.").
Obliged to do no more than interpret and apply Section 7(a)(6) alone, this Court cannot amend it by introducing into its plain text a foreign standard. See McMellon v. United States, 387 F.3d 329, 358-59 (4th Cir.2004) (Niemeyer, dissenting in part). Just as it cannot invent one, this Court cannot transpose one from conference and committee reports.
Second, Defendants seem to have mischaracterized the Scott Court's ruling. As its findings reveal, that court never concluded that Defendants' "substantial compliance" satisfied the NVRA. Rather, this fact did no more than mitigate against a certain remedy, i.e. monitoring, with this court specifically concluding: "Ultimately, this Court finds that because Defendants are only in substantial compliance, and not in full compliance, there is some potential danger that future violations may occur." (Doc. 436 at 34, No. 2:11-cv-00926-JTM-JCW (emphasis added).) Once it is fairly perused, the Scott Court actually decided the very opposite of what the Defendants have contended. In page after page, it stressed Defendants' failure to achieve "full compliance with the [NVRA's] mandates" and left no doubt about such failings' illegality under this strict statute; Defendants' substantial compliance and reasonable efforts swayed the Scott Court only as to the remedy that it ultimately fashioned. (Id. at 25, 27, 34.) Like the Scott Court, this Court will not revise the NVRA and require no more than substantial compliance and reasonable effort by Defendants. However harsh or impractical such a standard may strike the Parties,
Just as this state cannot evade its obligations under federal law by means of delegation, see supra Part V.A.2, neither can DHH do so by private contract. See, e.g., United States, 255 F.Supp.2d at 78; Harkless, 545 F.3d at 452. In this state, the LGEs serve as DHH's appointed agents, (Doc. 398 at 29-33), and DHH's Secretary bears the ultimate responsibility for the "policy, development, implementation, and monitoring of the statewide human services system to assure the provision of the delivery of behavioral health and developmental disabilities services," LA. R.S. § 28:919A. Under state law, as DHH must "implement ... the statewide human services system," it is expected to construct and maintain this very system. Id. (emphasis added); Implement, OXFORD ENGLISH DICTIONARY ONLINE.
Under the NVRA, an entity providing "behavioral health and developmental disabilities services" must be classified as a VRA. 52 U.S.C. § 20506(a). Read in conjunction, both Louisiana law and the NVRA compel this Court to hold DHH responsible for the violations of its chosen agents when the power to appoint, to monitor, and to maintain rests upon it alone and when each agent receives payment from LA by virtue of its contracts. Other courts have similarly ruled as to Medicaid
Rule 56 requires a court to enter judgment for a movant whenever "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A dispute is "genuine" so long as "the evidence is such that a reasonable jury could return a verdict for the nonmoving party," and a fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. 2505; see also Ray v. United Parcel Serv., 587 Fed.Appx. 182, 186 (5th Cir. 2014). Here, the Parties do agree on certain facts — that DHH and DCFS were not in full compliance prior to the Scott Matter. (See, e.g., Doc. 398; Doc. 399; Doc. 402.) However, they dispute the extent to which Defendants have failed to comply since Scott or ensured compliance by every program under their purview. (Compare Doc. 360-1, with, e.g., Doc. 398; Doc. 399; Doc. 420.) Of course, as this Court has now concluded, even minor noncompliance contravenes the NVRA. See supra Part V.C.1.
As such, only a few facts matter to ascertaining the existence of an actionable violation. First, Defendants have conceded that "isolated instances" of noncompliance persist, see supra Parts III.B. V.A.1, and not even the Scott Court found them to be in "strict compliance" with the NVRA, (Doc. 436 at 34, No. 2:11-cv-00926-JTM-JCW). In addition, Defendants have acknowledged that multiple violations pre-dating the First Injunction were not actually ligated in Scott, and the Scott Court certainly could not have determined the significance of the post-Scott violations that Defendants themselves concede have taken place. (See, e.g., Doc. 398 at 9; Doc. 399 at 9; Doc. 402 at 7.) By definition, even a fraction of such established and incontestable facts would entitle the US to relief pursuant to § 20510(a) based on the plain meaning of § 20506(a)(6).
Yet, the US now seeks a remedy denied to the Scott Plaintiffs: ongoing monitoring of the various Defendants' NVRA efforts. Where a state or its subordinate agencies "openly and plainly refuses to comply with the NVRA," such monitoring may be proper. True the Vote, 43 F.Supp.3d at 715 (construing Miller, 129 F.3d at 837). Indeed, other plaintiffs have requested it, and other courts have recognized this particular's remedy special value to securing the NVRA's aims. See Valdez v. Herrera, Civ. No. 09-668 JCH/DJS, 2012 U.S. Dist. LEXIS 177639, at *17-18 (D.N.M. Mar. 21, 2012); Ass'n of Cmty. Orgs. for Reform Now v. Scott, No. 08-CV-4084-NKL, 2008 U.S. Dist. LEXIS 53580, at *27-29, 2008 WL 2787931, at *8 (W.D.Mo. July 15, 2008). Historically, when NVRA violations have been suitably proven, as they have been here, courts have not hesitated to compel states to submit plans for full and prompt compliance. See, e.g., Condon v. Reno, 913 F.Supp. 946, 949, 960 (D.S.C.1995).
In such cases, caution is due, for when such a far-reaching injunction is threatened, proportionality greatly matters, and a remedy must be carefully tailored to achieve the federal law's ends in the least obtrusive possible manner. Cf. Scott, 826 F.3d at 214, 2016 U.S.App. LEXIS 10919, at *15, 2016 WL 3345277, at *5 (reminding the Scott Court that "an injunction may not encompass more conduct than was requested or exceed the legal basis of the lawsuit"). Undeniably, the dramatic remedy requested may eventually be demonstrated to be proper and essential, but it is has not yet been conclusively and incontestably shown to be the proper means of rectifying Defendants' proved shortcomings. So convinced, even as it finds Defendants to have violated the NVRA, this Court cannot grant the remedy that the US has requested under Rule 56.
Rather unexpectedly, one more issue has arisen during the Parties' last round of briefing. In the US' Opposition to Schedler's MSJ, the Government had relied on the deposition testimony of the SOS' Rule 30(b)(6) designee, McRitchie, to buttress its contention that no live dispute now exists as to the NVRA's coverage over remote transactions. (Doc. 420 at 1; see also Doc. 382 at 3-6.) According to the transcript, McRitchie testified that "as early as 2007, the SOS had instructed VRAs that `voter registration is always offered,' regardless of the mode of transaction." (Doc. 420 at 1-2; see also Doc. 382-2.) But, Schedler's MSJ Reply, (Doc. 395), points the Court to a corrected version of McRitchie's testimony: "In 2011, all training was limited to in person transactions." (Doc. 395 at 9-10; see also Doc. 420 at 2.) Focusing on the same provision, the US characterizes this change as verboten under Rule 30(e), (Doc. 420 at 2-3), while the SOS defends its propriety, (Doc. 423 at 3-4). Per precedent and law, neither side can win this argument based on the few facts now available.
Rule 30(e) allows a deponent to review a deposition transcript and "[i]f there are changes in form or substance, to sign a statement listing the changes and the reasons for making them." FED. R. CIV. P. 30(e); Gonzalez v. Fresenius Med. Care N. Am., 689 F.3d 470, 480 (5th Cir.2012).
Regardless of the side chosen, even when a statement explaining the change has been proffered, a district court enjoys the discretion to order that a deposition be reopened so that the revised answers may be followed up on and the reason for the corrections explored. Poole, 908 F.Supp.2d at 786. As McRitchie's changes affect the substantive implications of her sworn testimony, this Court believes this result coheres with the purposes of both Rule 30 and Rule 31. Accordingly, as specified in this Ruling's conclusion, see infra Part VI, Schedler will be ordered to make McRitchie available for a second deposition on a certain date so that the reasons for her changes can be subjected to proper scrutiny.
Long ago, the Supreme Court "recognized the elementary proposition upon which our structure of civil rights is based: `[The] political franchise of voting is ... a fundamental political right, because [it is] preservative of all rights.'" City of Mobile v. Bolden, 446 U.S. 55, 115, 100 S.Ct. 1490, 1525-26, 64 L.Ed.2d 47, 89 (1980) (Marshall, J., dissenting) (quoting Yick Wo, 118 U.S. at 370, 6 S.Ct. 1064). Again and again, that theme has been invoked. Reynolds v. Sims, 377 U.S. 533, 561-62, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). And, again and again, courts, scholars, and politicians have emphasized this link between voting and civil rights. See 52 U.S.C. § 20501; THE FEDERALIST No. 52, at 354; WALDMAN, supra, at 170.
Passed in 1993, the NVRA represents one such congressional effort to safeguard and expand this republican right in language bare and clear. Once their many arguments have been distilled and their many motions perused, one issue lies at this case's core: to what extent, if any, does Section 7 of the NVRA apply to these Defendants in light of its terms and another court's adjudication of Defendants' past — and admitted — violations. Through this thicket, well-settled jurisprudence provides a compass. The Scott Matter cannot bind the US, and while this case has not been mooted, the Defendants are bound in full both by the Scott Court's findings and to Section 7's unambiguously discrete and varied mandates. However impractical it
Nonetheless, despite the cogency of the evidence produced by the US, enough uncertainty beclouds the record to foreclose its victory under Rule 56 as to the remedy requested. Before permanent monitoring may be compelled, judgments regarding credibility and weight must still be made, for the US now seeks far more than the permanent injunction awarded by the Scott Court. Conversely, to the extent the US now seeks an order declaring Defendants in violation of Section 7 of the NVRA, that request must be granted, for violations have indisputably persisted even in Scott's aftermath. Although they may be minor, they are nonetheless violations.
Accordingly, for the aforementioned reasons, this Court ORDERS as follows:
Response Response Alleged Violation Response (DCFS and DHH) 1. [Description.] (Doc [] at [].) [Response(s).] (Doc [] at [].) [Response(s).] (Doc [] at [].) 2. [Description.] (Doc [] at [].) [Response(s).] (Doc [] at [].) [Response(s).] (Doc [] at [].) 3. [Description.] (Doc [] at [].) [Response(s).] (Doc [] at [].) [Response(s).] (Doc [] at [].) 4. [Description.] (Doc [] at [].) [Response(s).] (Doc [] at [].) [Response(s).] (Doc [] at [].) 5. [Description.] (Doc [] at [].) [Response(s).] (Doc [] at [].) [Response(s).] (Doc [] at [].) 6. [Description.] (Doc [] at [].) [Response(s).] (Doc [] at [].) [Response(s).] (Doc [] at [].) 7. [Description.] (Doc [] at [].) [Response(s).] (Doc [] at [].) [Response(s).] (Doc [] at [].) 8. [Description.] (Doc [] at [].) [Response(s).] (Doc [] at [].) [Response(s).] (Doc [] at [].) 9. [Description.] (Doc [] at [].) [Response(s).] (Doc [] at [].) [Response(s).] (Doc [] at [].) 10. [Description.] (Doc [] at [].) [Response(s).] (Doc [] at [].) [Response(s).] (Doc [] at [].) 11. [Description.] (Doc [] at [].) [Response(s).] (Doc [] at [].) [Response(s).] (Doc [] at [].) 12. [Description.] (Doc [] at [].) [Response(s).] (Doc [] at [].) [Response(s).] (Doc [] at [].) 13. [Description.] (Doc [] at [].) [Response(s).] (Doc [] at [].) [Response(s).] (Doc [] at [].) 14. [Description.] (Doc [] at [].) [Response(s).] (Doc [] at [].) [Response(s).] (Doc [] at [].) 15. [Description.] (Doc [] at [].) [Response(s).] (Doc [] at [].) [Response(s).] (Doc [] at [].) 16. [Description.] (Doc [] at [].) [Response(s).] (Doc [] at [].) [Response(s).] (Doc [] at [].) 17. [Description.] (Doc [] at [].) [Response(s).] (Doc [] at [].) [Response(s).] (Doc [] at [].) 18. [Description.] (Doc [] at [].) [Response(s).] (Doc [] at [].) [Response(s).] (Doc [] at [].) 19. [Description.] (Doc [] at [].) [Response(s).] (Doc [] at [].) [Response(s).] (Doc [] at [].) 20. [Description.] (Doc [] at [].) [Response(s).] (Doc [] at [].) [Response(s).] (Doc [] at [].) (SOS)
THE FEDERALIST NO. 52, at 354 (Jacob E. Cooke ed., 1961); see also 2 THE RECORDS OF THE CONSTITUTIONAL CONVENTION OF 1787, at 240 (Max Farrand ed. 1966).
Original Codification Colloquial Name Post-September 1, 2014 Codification 42 U.S.C. § 1973gg Section 2 52 U.S.C. § 20501 42 U.S.C. § 1973gg-1 Section 3 52 U.S.C. § 20502 42 U.S.C. § 1973gg-2 Section 4 52 U.S.C. § 20503 42 U.S.C. § 1973gg-3 Section 5 52 U.S.C. § 20504 42 U.S.C. § 1973gg-4 Section 6 52 U.S.C. § 20505 42 U.S.C. § 1973gg-5 Section 7 52 U.S.C. § 20506 42 U.S.C. § 1973gg-6 Section 8 52 U.S.C. § 20507 42 U.S.C. § 1973gg-7 Section 9 52 U.S.C. § 20508 42 U.S.C. § 1973gg-8 Section 10 52 U.S.C. § 20509 42 U.S.C. § 1973gg-9 Section 11 52 U.S.C. § 20510 42 U.S.C. § 1973gg-10 Section 12 52 U.S.C. § 20511
See also True the Vote v. Hosemann, 43 F.Supp.3d 693, 699 n. 1 (S.D.Miss.2014). As many filings in this matter predate this codification, the Parties' citations do not always reflect the relevant provision's present location. Throughout this Ruling, this Court will employ the present codification or, so as to avoid mind-numbing repetition, the various sections' colloquial names.
(Doc. 423 at 3.) By so doing, the Secretary oversells this case, as the Fifth Circuit did not restrict a court's discretionary power to strike an errata sheet solely to "unreasonable and vexatious" instances. Gonzalez, 689 F.3d at 480 (emphasis added). Indeed, the Fifth Circuit actually upheld the district court's decision that an attorney had contravened Rule 30(e). Id.
