Judicial Watch, Inc. v. Adams

485 F.Supp.3d 831

JUDICIAL WATCH, INC., Plaintiff,

United States of America, Plaintiff-Intervenor,

v.Michael ADAMS in his official capacity as Secretary of State, et al., Defendants.

Civil No. 3:17-cv-00094-GFVT

United States District Court, E.D. Kentucky, Central Division. Frankfort.

Signed September 9, 2020

Eric W. Lee, Pro Hac Vice, Robert D. Popper, Pro Hac Vice, T. Russell Nobile, Pro Hac Vice, Judicial Watch, Inc., Washington, DC, H. Christopher Coates, Pro Hac Vice, Law Offices of H. Christopher Coates, Charleston, SC, Mark A. Wohlander, Wohlander Law Office, Lexington, KY, Thomas E. Clay, Clay Daniel Walton & Adams, PLC, Louisville, KY, for Plaintiff.

Jenigh J. Garrett, T. Christian Herren, Jr., U.S. Department of Justice - Civil Rights Division 8.1134, John Albert Russ, IV, Michelle Christine Rupp, U.S. Department of Justice, Washington, DC, for Plaintiff-Intervenor.

Lynn Sowards Zellen, Kinkead & Stilz, PLLC, Lexington, KY, R. Kenyon Meyer, Daniel J. O'Gara, Dinsmore & Shohl, LLP, Louisville, KY, for Defendant Michael Adams.

Daniel Luke Morgan, Stephen Garrett Amato, McBrayer, McGinnis, Leslie & Kirkland, PLLC, Katherine K. Yunker, Lexington, KY, for Defendant Mary Sue Helm.

Daniel Luke Morgan, Stephen Garrett Amato, McBrayer, McGinnis, Leslie & Kirkland, PLLC, Katherine K. Yunker, Lexington, KY, for Defendants Albert B. Chandler, III, Donald W. Blevins, Joshua G. Branscum, Stephen Huffman, George Russell.

Daniel Luke Morgan, Stephen Garrett Amato, McBrayer, McGinnis, Leslie & Kirkland, PLLC, Katherine K. Yunker, Lexington, KY, Daniel J. O'Gara, Dinsmore & Shohl, LLP, Michael Rollin Wilson, Wilson & Wilson, Louisville, KY, for Defendant Michael G. Adams.

MEMORANDUM OPINION & ORDER

Gregory F. Van Tatenhove, United States District Judge

As the Consent Judgment points out, the parties share the goals of (1) improving the accuracy of voter registration records through a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists of registered voters and (2) ensuring that Kentucky residents are not removed from official lists of registered voters absent the procedural safeguards set forth in the NVRA. After many changes and substantial progress, Kentucky is becoming closer to fulfilling these intended goals. However, Plaintiffs allege that Defendants’ previous "inaction prevented Kentucky's timely progress toward ensuring an accurate and current voter registration list, one of the core purposes of the NVRA and this Consent Judgment." [R. 55 at 18.] Therefore, for the following reasons, the Court will GRANT IN PART Judicial Watch's Motion to Modify and Enforce the Consent Judgment.

I

On November 14, 2018, Judicial Watch filed a Complaint that initiated this action against the Secretary of State¹ and the Executive Director and members of the Kentucky State Board of Elections (SBE). [R. 1.] Specifically, the Complaint sought a declaratory judgment that alleged "Defendants have failed to fulfill Kentucky's obligations under Section 8(a)(4) of the National Voter Registration Act of 1993 (NVRA) to conduct a general program that makes a reasonable effort to cancel the registrations of registrants who are ineligible to vote in Kentucky elections." Id. at ¶59. After Judicial Watch compared the number of voter registrations in Kentucky and its counties to the number of citizens who were old enough to register to vote, they found 48 counties had registration rates exceeding 100% of their age-eligible citizens. Id. at ¶¶ 15–17. Therefore, Judicial Watch concluded that the State of Kentucky had more registered voters than age-eligible citizens. Id. at ¶ 18. Further, Judicial Watch discovered that contrary to federal regulations, Kentucky failed to report the number of inactive registrations or the number of Confirmation Notices sent to the federal Election Assistance Commission in the previous two-year reporting period. Id. at ¶¶ 20–22.

On June 12, 2018, the United States moved to intervene which was granted by the Court. [R. 32; R. 34.] On the same day, the parties filed a proposed agreed Consent Judgment. [R. 33-1.] The Court approved and entered the Consent Judgment on July 3, 2018. [R. 39.] The parties stipulated that due to the lack of funding, there were currently no registrants on an inactive list or in the removal process set out in Section 8(d) of the NVRA, no notices required by Section 8(d) had been mailed since 2009, and no registrants had been removed from the voter registration list pursuant to the procedures in Section 8(d) since 2015. [R. 39 at 7.] As a result, the SBE would be unable to remove any registrants ineligible due to an unreported change of address from the voter registration rolls pursuant to Section 8(d) until after the November 2020 election. [R. 55 at 6.]

The NVRA was enacted "to establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office" while "ensur[ing] that accurate and current voter registration rolls are maintained." 52 U.S.C. 20501(b)(1), (4). Section 8 of the NVRA prescribes the conditions under which registrants may be removed from voter registration lists and the procedures that must be followed before making those removals. 52 U.S.C. 20507. In addition to other procedures, Section 8 requires that states conduct a general voter registration list maintenance program that makes a reasonable effort to remove persons from the voter list who have become ineligible by reason of death or a change in residence outside of the jurisdiction. 52 U.S.C. 20507(a)(4). These programs must be uniform and nondiscriminatory, and they must comply with the Voting Rights Act. 52 U.S.C. 20507(b)(1).

The parties stipulated in the Consent Judgment that Section 8 specifies two circumstances under which a registrant may be removed from the voter registration list because the registrant has moved to another jurisdiction. 52 U.S.C. 20507(d)(1). First, a state can remove a person from the voter registration list based upon the registrant's written confirmation of a change of address to a location outside of the registrar's jurisdiction. 52 U.S.C. 20507(d)(1)(A). Second, a state can remove a person from the voter registration list if (a) the registrant failed to respond to a notice which includes a postage prepaid and preaddressed return card sent by forwardable mail, on which the registrant may state his or her current address, and which contain specific instructions, 52 U.S.C. 20507(d)(1)(B)(i), (d)(2), and (b) the registrant then fails to vote or appear to vote during the period ending on the day after the second federal general election subsequent to the Section 8(d)(s) notice being sent. 52 U.S.C. 20507(d)(1)(B)(ii). Any program to remove ineligible voters shall be completed no later than 90 days prior to the date of a primary or general election for federal office. 52 U.S.C. 20507(c)(2)(A).

Consistent with the NVRA's requirements, the Consent Judgment requires the SBE to develop and implement a general program of statewide voter list maintenance and to prepare a Comprehensive Plan for the parties to review. [R. 39 at 8–9.] The Comprehensive Plan "shall include a detailed description of all procedures to be followed by" the SBE to maintain an accurate and current voter registration list, including procedures to identify registrants who have become ineligible due to change in residence and the expected timeframe and frequency of such procedures. Id. at ¶ 34. The Consent Judgment also requires that "[w]ithin 45 days of the effective date of the Agreed Order, the [SBE] shall provide counsel for the parties with its draft of the Comprehensive Plan." Id. at ¶ 33. The parties were then given 30 days to respond. Id. If the parties cannot in good faith agree upon the terms of the appropriate plan within 30 days of the latest response, the parties can seek resolution from the Court. Id. However, the SBE must proceed with the mandated actions regarding the cavass mailing in the stated timeframes regardless of whether a Comprehensive Plan is in place. Id.

The procedures the SBE must include in the Comprehensive Plan include:

[p]rocedures for a general program of list maintenance for registrants who may have become ineligible due to a change of residence that has not been reported to election officials, including procedures that can be implemented in 2018 (bearing in mind the 90-day quiet period before federal elections), procedures going forward in subsequent years, and procedures for reaching back to identify registrants who may have become ineligible due to an unreported change of residence since 2009.

Id. at ¶ 34(a). The SBE's procedures include an initial canvass mailing consisting of a non-forwardable notice to all Kentucky registrants who may have unreported change in residences since 2009. Id. at ¶ 34(c). Where such non-forwardable canvass mailing is returned as undeliverable with or without a forwarding address, this would include procedures for moving ahead during the time period between May 23 and August 8, 2018. Id. If information indicates the registrant may have an unreported move outside of Kentucky, then Defendants were required to send "the specific forwardable [Confirmation] notices described in Section 8(d)(2) of the NVRA to confirm the registrants’ change in residence" and wait the statutorily required two federal elections prior to removal. Id. at ¶ 34(d). Defendants were to provide the "expected date(s) between May 23 and August 8, 2018 when notices will be sent under Sections 8(c)(1)(B)(i) or 8(d)(2) of the NVRA and updates carried out under Section 8(f) of the NVRA." Id. at ¶ 34(e).

Therefore, the initial canvas cards and follow-up procedures under Sections 8(c) and (d) were to be completed by August 8, 2018. [R. 55 at 7; R. 39 at 9–11.] This deadline was chosen by the parties because it was the beginning of the NVRA-mandated 90-day quiet period before the 2018 federal general election. [...