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Case 2:10-cv-00075-RBS -DEM Document 1 Filed 02/16/10 Page 1 of 12 PageID# 1

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

NORFOLK DIVISION

PROJECT VOTE/VOTING FOR

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AMERICA, INC.

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737 'l2 8th St SE

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Washington, DC 20003

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Plaintiff:

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v.
ELISA LONG, In Her Official Capacity as General Registrar ojN01:folk. VA City Hall Building, Room 808 81 0 Union Street Norfolk VA 2351 0,
NANCY RODRIGUES, In Her Qfficial Capacity as Secretm:v. State Board ofElections, 200 N. 9th Street, Room l 0 I Richmond, VA 23219,

) ) ) ) ) CIVIL ACTION NO. ) ) )
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Defendants.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF INTRODUCTION
This is an action seeking declaratory and injunctive relief prohibiting the Defendants from denying Plaintiff Project Vote/Voting for America, Inc. (hereinafter ··Project Vote"') access to certain voter registration records relating to the implementation of programs and activities conducted tor the purpose of ensuring the accuracy and currency of official lists of eligible voters, in violation of Section 8(i) of the National Voter Registration Act of 1993 ("NVRA" or

Case 2:10-cv-00075-RBS -DEM Document 1 Filed 02/16/10 Page 2 of 12 PageID# 2
"Act"), 42 U.S.C. § 1973gg-6(i). Defendants, by invoking a Virginia statute and misinterpreting the NVRA, have denied Project Vote's requests to inspect and copy the completed voter registration applications and related records of prospective registrants who were denied registration in the city of Norfolk, Virginia in advance of the 2008 Presidential election. The right of Project Vote and any other member of the public to inspect and copy those records and other records relating to voter registration activities is granted by Section 8(i) of the NVRA, and Defendants' refusal to pennit such access to public records is a violation of clear and unambiguous federal law.
Moreover, granting Project Vote access to the records at issue is strongly in the public interest. In the course of their ongoing nonpartisan voter protection efto1is and their work with local community groups in Virginia. Project Vote and Advancement Project (co-counsel for Project Vote herein), both national civil and voting rights organizations, suspected that properly completed voter registration applications submitted by qualified and eligible citizens and residents of Norfolk, Virginia, may have been incorrectly rejected by the Norfolk General Registrar. Specifically, Project Vote learned that many applications submitted by ostensibly qualified college students at a historically Afi·ican-American public university in Norf{)]k were being rejected by the local registrar.
As a consequence of those rejections, eligible voters may have been prevented or discouraged from voting in Virginia's 2008 general election. Without access to the records at issue in this case, however, Project Vote cannot detennine whether the applications were lawfully rejected and/or whether systemic election administration problems with the Norfolk General Registrar's Office exist. Analysis of the rejected applications from 2008 is essential to identifying and correcting any existing election administration problems in advance of the 2010
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federal midtenn elections and ensuring that any voter registration drives that may be conducted by Project Vote or its community partners-or any other private group-during the 2010 election cycle will be successful in tcnns of registering the highest number of qualified applicants.
Project Vote and Advancement Project expended significant time and resources to investigate these issues and assist their local community partners with various voter protection concems, including potentially improper election administration practices in the City of Norfolk and in other local jurisdictions in the Commonwealth of Virginia. By preventing Project Vote's access to these records, Defendants are denying Project Vote's rights under the NVRA, subverting the Act's purpose, and inhibiting Project Vote·s eff(>rts to carry out its voter protection and election administration reform programs and activities.
JURISDICTION AND VENUE I. This Court has jurisdiction over this action under 28 U.S.C. § 1331, and it may issue a declaratory judgment and provide for further relief pursuant to 28 U.S.C. §§ 2201 and 2202. 2. Venue appropriately lies in this District and Division pursuant to 28 U.S.C. § 1391. 3. An actual and justiciable controversy exists between Project Vote and Defendants.
PARTIES 4. Plaintiff Project Vote is a nonprofit 50 I(c)(3) charitable organization existing under the laws of Louisiana, with its principal office in the District of Columbia. Project Vote works to empower, educate, and mobilize low-income, minority, youth, and other marginalized
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and underrepresented voters. Project Vote works towards systemic changes, lowering the barriers that prevent underrepresented populations from registering and voting, while working to enforce and expand public policies and procedures that encourage full participation in elections. In Virginia, Project Vote recently conducted election protection work during the 2009 election and released a statutory review memo on election procedures in Virginia. Project Vote also tracks election bills in Virginia and provides summaries on the impact of such bills to voters. In 2005, Project Vote conducted a voter registration drive in Norf()lk, Virginia. After teaming that numerous voter registration applications had been denied, Project Vote unsuccessfully sought to obtain copies of the rejected applications from Norfolk's General Registrar, Elisa Long.
5. Defendant Elisa Long is sued in her otlicit~l capacity as General Registrar of Norfolk, Virginia. Under Virginia law, Ms. Long's responsibilities in this capacity include accepting and processing voter registration applications and requests for transfer or change of address; maintaining the official registration records for Norfolk, Virginia; preserving the written applications of all persons who are registered; and maintaining accurate and current registration records and complying with the applicable requirements for the transfer, inactivation, and cancellation of voter registrations. See Va. Code Ann.§ 24.2-114 (6), (8), ( 12).
6. Defendant Nancy Rodrigues is sued in her official capacity as Secretary of the Virginia State Board of Elections. Under Virginia law, Ms. Rodrigues's responsibilities in this capacity include overseeing the duties of the State Board of Elections, which supervises and coordinates the work of the county and city electoral boards and registrars to maintain unit(mnity of practices and proceedings and to preserve legality and purity in all elections. See Va. Code Ann. § 24.2-l 03. As Secretary of the State Board of Elections, Ms. Rodrigues is also the chief state election official responsible for the coordination of the Commonwealth's responsibilities
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under the NVRA. See Va. Code Ann. § 24.2-404.1. The State Board of Elections is charged with making rules and regulations and with issuing instructions and providing information consistent with the election laws to the electoral boards and registrars to promote the proper administration of election laws. ld.
FEDERAL AND STATE STATUTORY FRAME\VORKS 7. Congress enacted the NVRA in 1993 to protect the integrity of the electoral process by better securing citizens· fundamental right to vote with improved voter registration procedures. Pub. L. No. 103-31, 107 Stat. 77 (1993)(codified at42 U.S.C. § 1973ggetseq.). In so doing, Congress mandated reform to remedy "discriminatory and unfair registration laws and procedures'' that have ..direct and damaging·· effects on voter participation in federal elections and disproportionately ham1 voter participation among racial minorities. 42 U.S.C. § l973gg. Crucial to this refonn is ensuring that ..accurate and cun·ent voter registration rolls are maintained." 42 U.S.C. § 1973gg(b)(4). 8. To this end, the NVRA imposes a variety of requirements on states conceming voter registration procedures and policies. 42 U.S.C. § l973gg-6. 9. Accuracy of voter rolls is critically important to guaranteeing that eligible voters are afforded the right to vote. To ensure that these rolls arc accurate and current, Section 8(i) of the NVRA requires states to make voter registration records publicly available: Each State shall maintain for at least 2 years and shall make available tor public inspection and, where available, photocopying at a reasonable cost, all records concerning the implementation of programs and activities conducted for the purposes of ensuring the accurncy and currency of official lists of eligible voters, except to the extent that such records relate to a declination to register to vote or to the identity of a voter registration agency through which any particular voter is registered. 42 U.S.C. § 1973-gg6(i)(l) (emphasis added) (the ''Public Disclosure Provision"). The
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Public Disclosure Provision is essential to the NVRA' s purpose of ensuring accurate and non-discriminatory voter registration practices because it allows the public to continn that states arc abiding by the federal legislation.
l 0. Virginia law, however, imposes additional restrictions on public access to records concerning the accuracy and currency of voter registration rolls, such that only certain limited records relating to voter registration list maintenance are pennitted to be inspected or copied by the public. See Va. Code Ann. § 24.2-444(8). 1 This restriction limits public access to only those records maintained related to the specific list maintenance programs described in §§ 24.2-427, 24.2-428, and 24.2-428.1 These programs primarily involve processes for removing previously registered individuals from the lists of registered voters or deactivating their registration status.
II. Virginia law also allows the public to inspect-but not photocopy-certain secondary lists of registered voters and rejected voter registration applicants, which are prepared by the State Board of Elections and distributed periodically to the general registrars. See Va. Code Ann. § 24.2 444(A). All other voter registration records are specifically prohibited by Virginia law from being available for public inspection or copying. See Va. Code Ann.§ 24.2 444(C) (''No voter registration records other than the lists provided by the State Board under subsection A and the records made available under subsection 8 shall be open to public
1 Section 24.2-427 empowers General Registrars to cancel the registration of previously registered voters known to be deceased or otherwise disqualified to vote in Virginia. Va. Code Ann. ~ 24.2-427. Section 24.2-428 empowers the State Board of Elections to establish a voter list maintenance program designed to identify voters who have moved. send notices to those individuals' last known address seeking updated information, and deactivate those voters' registration if they do not respond within 30 days. Va. Code Ann. ~ 24.2-428. Section 24.2-428.1 details other procedures by which General Registrars may deactivate the registration status of previously registered voters. Va. Code Ann. 24.2-428.1.
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inspection."). Thus, according to Virginia law, the primary records with which election officials determine whether to add new applicants to the rolls or reject their applications-i.e., completed voter registration applications-may be neither inspected nor copied.
12. Consequently, when voter registration applications are rejected, the applications themselves, which are essential in detcnnining whether the rejections were proper, are not available for public inspection under Virginia law. These records are crucial to ensuring the accuracy and currency of the voter rolls, because, without access to these records, the public cannot ascertain whether individuals who should be on the rolls actually arc. Virginia law therefore limits public access to records concerning the accuracy and currency of registration records to a greater degree than is permitted by the Public Disclosure Provision of the NVRA, which mandates that ..all records·· concerning the accuracy and currency of the voter rolls be made available tor public inspection and/or copying.
13. Accordingly, Section 24.2-444 on its face and as interpreted by Defendants violates and is preempted by the Public Disclosure Provision of the NVRA.
FACTUAL ALLEGATIONS 14. Through its ongoing voter protection work with Advancement Project and local community organizations in Virginia, Project Vote received reports that several students at Norfolk State University-a historically African-American public university located in Norfolk, Virginia-had experienced difficulty as they attempted to register to vote in advance of the November 2008 primary and general elections. Specifically, Project Vote teamed that many applications submitted by ostensibly qualified on-campus NSU students were being rejected by Defendant Long's office. 15. On May ll, 2009, Advancement Project requested by email that Defendant Long
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"make available for inspection and copying the completed voter registration applications of any individual who timely submitted an application at any time from January I, 2008, through October 31, 2008, who was not registered to vote in time for the November 4, 2008 general election,'' and also other documents, such as ··documents identifying the reasons the applications were rejected" (collectively the "'Requested Records").
16. Advancement Project advised Defendant Long that the Requested Records were required to be made available for public inspection and copying pursuant to the Public Disclosure Provision, notwithstanding any Virginia law that might be interpreted to the contrary.
17. On May 13, 2009, Defendant Long responded that she would not permit inspection or copying of the Requested Records, stating that Virginia law. particularly Virginia Code § 24.2-444, supported her position.
18. Later that day, Martha Brissette, an attomcy and policy analyst with the Virginia State Board of Elections, emailcd Advancement Project stating that Defendant Long had correctly declined to permit inspection and copying of the Requested Records.
19. On May 15, 2009, representatives from Advancement Project and Project Vote traveled to Defendant Long's office in Norfolk, Virginia, where they again requested access to the Requested Records and were denied the opportunity to inspect or copy those materials.
20. On June 22, 2009, Advancement Project and Project Vote, on behalf of themselves and all others similarly aggrieved, wrote to Defendant Rodrigues, pursuant to Section ll (b) of the NVRA, giving notice of the violation of the Public Disclosure Provision and requesting that Defendant Rodrigues undertake appropriate remedial measures. Specifically Plaintiff and Advancement Project requested the State Board of Elections to issue a written directive to all General Registrars and state election officials advising them of their obligation
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under the NVRA to permit inspection and copying, upon request, of '"all records concerning the implementation of programs and activities conducted tor the purpose of ensuring the accuracy and currency of official lists of eligible voters,., including copies of completed voter registration applications.
21. On July 22, 2009, Ms. Brissette informed Plaintiff and Advancement Project by email that the State Board of Elections, at its July I0, 2009 meeting, had voted to request an informal opinion of the Attorney General of Virginia regarding this matter.
22. On September 25, 2009, Ms. Brisette forwarded to Plaintiff and Advancement Project the Attorney General's informal opinion, dated September 23, 2009, and authored by Stephanie Hamlett, Senior Counsel to the Attorney General. In that informal opinion, Ms. Hamlett concluded-contrary to the plain language of the NVRA-that ""the completed voter registration application of any individual is not a part of the record of the implementation of programs and activities conducted for the purposes of ensuring the accuracy and currency of official lists of eligible voters covered by [the Public Disclosure Provision]:' The Defendants again denied Project Vote's request for access to the Requested Records.
23. To date, Defendants have not made the Requested Records available to Project Vote or its representatives. This continued refusal frustrates and hampers Project Vote's voter registration activities and mission and violates its rights under the NVRA.
24. The NVRA"s civil enforcement provision allows for a private right of action by persons "aggrieved by a violation·· after providing ""written notice of the violation to the chief election official of the State involved."' 42 U.S.C. § 1973gg-9(b)(I). If the violation is not corrected within 90 days after that official" s receipt of such notice, the aggrieved person may bring a civil action in the appropriate district court tor declaratory or injunctive relief with
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respect to the violation. 42 U.S.C. § l973gg-9(b)(2). As outlined above, Defendants have failed to take remedial action within the 90-day period prescribed by 42 U.S.C. § 1973gg-9(b) by refusing to permit Project Vote access to the Requested Records for inspection and copying.
25. Project Vote brings this suit to enforce its private right of action and rights under the NVRA and to challenge Virginia Code § 24.2-444 and its unlawful application here.
COUNT I (Violation of Federal Law (NVRA)) 26. Project Vote repeats and realleges the preceding allegations as though fully set forth herein. 27. The Supremacy Clause of the United States Constitution, Art. VI, par. 2, states in part: ..This Constitution, and the Laws of the United States which shall be made in Pursuance thcrcof...shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding:· 28. The NVRA and its Public Disclosure Provision place binding requirements on the states. To the extent that any state law conflicts with the NVRA, such law is preempted and superseded by the NVRA as a federal statute. 29. The Public Disclosure Provision explicitly and unambiguously requires that the Requested Records be available to the public for inspection and, where available, photocopying, because the Requested Records are ··records concerning the implementation of programs or activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters." 42 U.S.C. § l973gg-6(i). 30. To the extent that Virginia Code § 24.2-444 or any other statutory or regulatory provision or administrative practice of Virginia prohibits the disclosure of information required
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to be made available for public inspection and photocopying pursuant to the Public Disclosure Provision of the NVRA, such provisions and practices subvert the purpose of the NVRA and arc, therefore, invalid and unenforceable. Instead,§ 24.2-444 of the Virginia Code provides, and Defendants assert, that only records related to specific programs designed to remOl'e registered voters from the voting rolls fall within the Public Disclosure Provision. This limitation subverts the plain language and purpose of the NVRA.
31. Virginia Code § 24.2-444 and the actions of Defendants to deny Project Vote access to the Requested Records have prevented Project Vote and the public from inspecting or photocopying those records, and therefore Virginia Code § 24.2-444 is preempted by the NVRA.
PRAYER FOR RELIEF WHEREFORE, Project Vote respectfully requests that this Court enter judgment in its favor and that the Court: A) Declare that Defendants are in violation of the NVRA by refusing to grant access for inspection and photocopying of the Requested Records; B) Declare that the NVRA preempts Virginia Code§ 24.2-444 or any other Virginia law, rule, or regulation that forecloses the right to inspect and to copy the Requested Records; C) Permanently enjoin Defendants from refusing to pennit access to any requesting par1y for copy and/or inspection of voter registration applications and related records, as sought by Project Vote in this matter; D) Award Project Vote the costs incun·ed in pursuing this action, including attomeys· fees and reasonable expenses, as authorized by 42 U.S.C. § 1973gg-9(c) and other applicable provisions; and E) Grant such other and further relief as the Court deems proper.
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Jtt4 This

day of February 2010.

Respectfully submitted,
~~ /'1/Yt /V1 .
M. Malone (VA Bar# 48526) Jason G. ldilbi (VA Bar #76869) Augustine M. Ripa (VA Bar #77244)

David Overlock Stewart (Pro hac vice application pending)

ROPES & GRAY LLP 700 12th Street NW Suite 900 Washinbrton D.C. 2005 202-508-4669 202-383-8322 Ryan.Malone@ropesgray.com

Bradley E. Heard ADVANCEMENT PROJECT 1220 L Street, NW Suite 850 Washington, DC 20005 (Pro hac vice application pending)

Yolanda Sheffield PROJECT VOTE 737 Y:z 8111 Street SE
Washington, D.C. 20003
(Pro hac vice application pending)

Counse/for Plaint(f!Project Vote

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 Case 2:10-cv-00075-RBS -DEM Document 9 Filed 03/26/10 Page 1 of 23 PageID# 35

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA NORFOLK DIVISION

PROJECT VOTE/VOTING FOR AMERICA, INC,

Plaintiff,

v.

Case No.: 2:10cv75

ELISA LONG and NANCY RODRIGUES,

Defendants.

DEFENDANTS LONG AND RODRIGUES' MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS

Defendants, Elisa Long, General Registrar of Norfolk, Virginia ("Long''), and

Nancy Rodrigues, Secretary, Virginia State Board of Elections (''SBE")("Rodrigues"), by

counsel, submit this Memorandum of Law in support of their Motion to Dismiss.

Plaintiff, Project Vote/Voting for America, through its complaint requesting

declaratory and injunctive relief, seeks access to individual voter registration

applications and related records from Long. Plaintiff claims that Long and Rodrigues, in

withholding these records under Va. Code § 24.2-444, are in violation of the Public

Disclosure Provision of the National Voting Rights Act ("NVRA"), 42 U.S.C. § 1973gg-

6(i). Section (1) of this provision makes available for public inspection "all records

concerning the implementation of programs and activities conducted for the purpose of

ensuring the accuracy and currency of official lists of eligible voters ..." /d.

For the reasons stated below/ Long and Rodrigues ask the Court to dismiss this

action under Fed. R. Civ. P. 12(b)(1) and (b)(6) because: (1) plaintiff lacks standing to

sue under the NVRA; (2) individual voter registration applications are not records

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subject to the Public Disclosure Provision; and (3) the Virginia statute is not in conflict with the NVRA, undermining plaintiff's preemption claim.
I. BACKGROUND
Project Vote is a Washington, D.C.-based non-profit engaged in "ongoing nonpartisan voter protection efforts." Compl. at 2. In Virginia, it claims to have done "election protection work" in the 2009 election (a state election not covered by the NVRA), tracked "election bills in Virginia," and provided summaries of the same to
"voters.~~ Id ~ 4.
According to the Complaint, Project Vote received reports that "several students at Norfolk State University ... experienced difficulty as they attempted to register to
vote" for the federal November 2008 election. Id ~ 14. The Complaint alleges that
those several applications from "ostensibly qualified" NSU students were being rejected
by defendant Long's office in Norfolk. Id
In May 2009, plaintiff requested by email that Long make available for inspection and copying, completed voter registration applications and related records for individuals who had submitted applications to the Norfolk Registrar from January 1, 2008, through October 31, 2008, but who were not registered to vote in time for the November 4, 2008, election. ld ~ 15. On May 13, 2009, Long, relying on Va. Code § 24.2-444, governing the public's access to voter registration records, refused plaintiff access to those records. ld ~ 17. Plaintiff's representatives appeared in Long's office on May 15, 2009, requesting in person, but again Long refused them access to, the
requested records. Id ~ 19.
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By letter dated June 22, 2009, plaintiff requested, under the NVRA Public Disclosure Provision, that defendant Rodrigues, for the SBE, direct all General Registrars to permit inspection and copying of "all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and
currency of official lists of eligible voters ..." Id. 11 20. Plaintiff maintained that the
records described in the Public Disclosure Provision included copies of completed voter registration applications. Id.
Prior to responding to plaintiff, the SBE requested that the Virginia Attorney General's Office issue an opinion regarding public access to the requested records. In a letter dated September 23, 2009, attached hereto as Exhibit "A," the Attorney General's Office stated in an informal opinion that "the completed voter registration application of any individual is not a part of the record of the implementation of programs and activities conducted for the purposes of ensuring the accuracy and currency of official
lists of eligible voters." Id. 11 22. Upon receipt of the opinion, Rodrigues declined plaintiff's request. !d. Plaintiff
filed this action following defendants' refusal to allow access to the requested voter registration applications and related records. II. LEGAL STANDARD
A. Motion to Dismiss for Lack of Jurisdiction Under Rule 12(b){1), jurisdiction once challenged by the defendant must be proven by the proponent of jurisdiction. Marks v. United States Social Security Administration, 906 F. Supp. 1017 {E.D. Va. 1995), aff(:J in part and vacated in part, 92
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F.3d 1180 (4th Cir. 1996). A trial court may go beyond the allegations of the complaint and consider additional evidence necessary to determine if there is in fact jurisdiction. See Adams v. Bain, 697 F.2d 1213 (4th Cir. 1982). A Rule 12(b)(1) motion may contend either that the complaint fails to allege facts sufficient to establish jurisdiction, or that the alleged jurisdictional facts are untrue. Id. at 1219.
B. Motion to Dismiss for Failure to State a Claim On a Rule 12(b)(6) motion to dismiss, the court accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff in weighing the legal sufficiency of the complaint. See Fed. R. Civ. P. 12(b)(6); Ashcroft v. Iqba~ 129
S.Ct. 1937, 1950-51 (2009); Adcock v. Freightliner LLC, 550 F.3d 369, 374 (4th Cir.
2008). However, legal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement fail to constitute well-pled facts for Rule 12(b)(6)
purposes. See Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255256 (4th Cir. 2009) (relying on Iqbal and Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007)). Nor should the court consider "unwarranted inferences, unreasonable conclusions, or arguments." Id. (quoting Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n. 26 (4th Cir. 2009)).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations . . . a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels, and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555
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(internal citations omitted). "Rule 8 ... does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Iqbal, 129 S.Ct. at 1950.
Relying on Iqbal and Twombly, the Fourth Circuit has opined that a complaint must contain "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face."' Nemet Chevrolet, 591 F.3d at 256 (citations omitted). The "complaint's factual allegations must produce an inference of liability strong enough to nudge the plaintiff's claims 'across the line from conceivable to plausible."' Id Thus, "the complaint must . . . plead sufficient facts to allow a court, drawing on 'judicial experience and common sense,' to infer 'more than the mere possibility of misconduct."' Id
A court may consider matters on the public record without converting the motion to one for summary judgment and can take judicial notice of pleadings in its own records. Papasan v. Allain, 478 U.S. 265, 286, n. 1 (1986). Non-judicial records outside the complaint may also be considered under Rule 12(b)(6). "[W]hen a plaintiff fails to introduce a pertinent document as part of his complaint, the defendant may attach the document to a motion to dismiss the complaint . . . not only documents quoted, relied upon, or incorporated by reference in the complaint, but also official public records pertinent to the plaintiffs' claims." Gasner v. County of Dinwiddie, 162 F.R.D. 280, 282 (E.D.Va. 1995)(emphasis added). 1
1 All documents attached to this Memorandum are accessible to the public and subject to Virginia's FOIA statute.
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III. ARGUMENT

Put simply, this Motion places two issues before the Court, namely: (1) does

plaintiff have standing, either by itself or in a representative capacity; and (2) does the

following section from the NVRA encompass completed voter registration applications,

or not:

(1) * * * all records concerning the implementation of
programs and activities conducted for the purpose ofensuring the accuracy and currency ofofficial lists ofeligible voters ...

(2) The records maintained pursuant to paragraph (1) shall include lists of the names and addresses of all persons to whom notices described in subsection (d)(2) are sent, and information concerning whether or not each such person has responded to the notice as of the date that inspection of the records is made.

42 U.S. §§ 1973gg-6(i) (emphasis added). This case is one of first impression

regarding the second issue. If the answer to either question is "No," then the Court

should dismiss this action for the reasons discussed below.

A. Plaintiff Lacks Standing to Sue under the NVRA

A threshold question this Court must consider is whether Project Vote has

standing on its own, or has standing to sue in a representative capacity. As set forth

below, Project Vote fails to allege facts establishing either kind of standing.

L Project Vote Fails to Allege Facts Establishing Its Own Standing

To establish its own standing under Article III, Project Vote must allege facts

showing that: (1) it has suffered injury in fact; (2) there is a genuine nexus between

Project Vote's alleged injury and defendants' alleged illegal conduct; and (3) it must be

likely, as opposed to merely speculative, that the injury will be redressed by a favorable

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decision. See Friends ofthe Earth/ Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149
(4th Cir. 2000); Allen v. Wright, 468 U.S. 737, 750-51 (1984). With regard to the first
element, a plaintiff's alleged injury must be "concrete and particularized," and be "actual or imminent, not conjectural or hypothetical." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)(internal citations omitted).
The NVRA grants standing to sue to "aggrieved persons~~ under 42 U.S.C. § 1973gg-9(b)(1) and (2). The NVRA only confers standing regarding elections for
federal office. Dobrovolny v. Nebraska, 100 F. Supp.2d 1012, 1029-30 (D. Neb. 2000).
Defendants find no Fourth Circuit precedent dealing with standing under the NVRA. The Fifth Circuit has held that Congress intended to extend standing under the NVRA to the extent permissible under the Constitution. Association of Community Orgs. for Reform v. Fowler, 178 F.3d 350, 363 (5th Cir. 1999). However, the U.S. Supreme Court has long held that "mere interest in a problem" is not sufficient to confer standing to an organization. Sierra Club v. Morton, 405 U.S. 727, 739 (1972)(organization's interest in an issue did not confer standing under the Administrative Procedure Act). A plaintiff organization in an NVRA suit must show that the organization itself, and not just its ideals, has been harmed in some concrete way as the result of the alleged
disenfranchisement See Harkless v. Blackwell, 467 F. Supp.2d 754, 761 (N.D. Ohio
2006), revrt on other grounds, Harkless v. Brunne~; 545 F.3d 445 (6th Cir. 2008). In United States Student Association Foundation v. Land, 585 F. Supp.2d 925,
934 (E.D. Mich. 2008), a federal court in Michigan held that an organization lacked
7

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standing on its own for this very reason in a suit brought under the NVRA.2 In Land, the court held that an organization lacked standing under the NVRA where it alleged no facts showing that the organization had any concrete involvement in registering the voters who claimed NVRA violations. Id The court also noted that even if the organization had been so involved, the organization would still lack standing if the number of allegedly disenfranchised persons was too small to have the "required impact upon the organization's interests as a whole." Id
Similarly, in Harkless, 467 F. Supp.2d at 761, a federal court in Ohio held3 that an organization lacked standing under the NVRA because it alleged facts only establishing a "setback to its abstract social interests." It alleged no facts showing that the organization itself was harmed. Id The same is true here. Project Vote only alleges that "several students" at Norfolk State University (''NSU") "experienced difficulty as they attempted to register to vote." Compl. ~ 14. It does not allege facts showing that it was harmed in any way.

In Land, the court narrowly found that the organization had representational standing,

something Project Vote lacks here. 585 F. Supp.2d 935.

On appeal, the Sixth Circuit found that the district court should have permitted the plaintiff to

amend complaint to cure standing problem. 545 F.3d at 459. The Sixth Circuit did not,

however, find that the district court erred in its ruling on the original complaint, i.e., that it

contained insufficient allegations to support standing. On facts here, defendants believe

that amendment would not cure the standing defects facing Project Vote

the number

of applications at issue could not have harmed plaintiff enough to establish standing on its own,

and plaintiff has no representational standing.

8

Case 2:10-cv-00075-RBS -DEM Document 9 Filed 03/26/10 Page 9 of 23 PageID# 43

Applying the principle set forth by the U.S. Supreme Court in Morton, and the sound reasoning from Land and Harkless, the denial of "several" voter registration applications in Virginia does not establish standing for Project Vote, a Washington, D.C.based non-profit, to bring this action. Finding a handful of rejected voting applicants provides no injury to Project Vote itself, nor could this materially affect its mission, including providing information to Virginia voters.4 See Compl. at 2. The Complaint understandably fails to allege facts establishing such harm.
At best, Project Vote can only argue that this handful of rejected voter registration applications offends its ideals and social policy interests, which are to "empower, educate, and mobilize . . . minority, youth, and other marginalized and
underrepresented voters." Compl. 11 4. This is the very rationale found to be
insufficient by the U.S. Supreme Court in Morton, as well as by the federal courts in Harkless and Land. On this ground, the Court should dismiss this action due to lack of standing since Project Vote also lacks representational standing.
2. Project Vote's Allegations Do Not Establish Representative Standing In a representative capacity, an organization may have standing to redress its members' injuries when: (1) its members would otherwise have standing to sue in their own right; (2) the interests it seeks to protect are germane to the organization's purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. United Food and Commercial Workers Union Local v. Brown Group, Inc., 517 U.S. 544, 545 (1996) (citing Hunt v.

Project Vote's decision to

to Norfolk request access to records previously denied by

9

Case 2:10-cv-00075-RBS -DEM Document 9 Filed 03/26/10 Page 10 of 23 PageID# 44

Washington State Apple Advertising Commn, 432 U.S. 333 (1977)). The participation

of members is not normally necessary in suits seeking only injunctive or declaratory

relief. United Food, 517 U.S. at 546 (1996)(citation omitted).

Here, Project Vote's allegations fall short again. In the Complaint, Project Vote

fails to allege any facts establishing that its members have been harmed by the alleged

actions of defendants. Indeed, nowhere in the Complaint does Project Vote say that

any of the NSU students, whose applications were denied, are members of Project Vote.

On this ground, Project Vote has no representational standing, and the Court should

dismiss the Complaint.

B. Virginia Law Does Not Conflict with Federal Law

1. The NVRA Does Not Require Disclosure of Voter Registration Applications

Plaintiff maintains that completed voter registration applications are "records

concerning the implementation of programs and activities conducted for the purpose of

ensuring the accuracy and currency of official lists of eligible voters," which must be

available to the public for inspection and, where available, photocopying under the

NVRA. 42 U.S.C. § 1973gg-6(i). Plaintiff asserts further that to the extent the Virginia

statute prohibits this disclosure, federal law preempts Va. Code § 24.2-444.

Contrary to plaintiff's assertion, § 1973gg-6(i) does not mandate public access to

completed voter registration applications

they are not "records concerning the

implementation of programs and activities conducted for the purpose of ensuring the

correspondence, should not constitute "harm" for standing purposes. Compl. ~ 19. Otherwise, any unwise expenditure of time could give someone standing to sue.
10

Case 2:10-cv-00075-RBS -DEM Document 9 Filed 03/26/10 Page 11 of 23 PageID# 45
accuracy and currency of official lists of eligible voters ...." The language and plain meaning of the federal statute underscores plaintiff's faulty construction.
"When [the Court] find[s] the [language] of a statute unambiguous, judicial inquiry is complete except in rare and exceptional circumstances[,] . . . where the application of the statute as written will produce a result 'demonstrably at odds with the intentions of its drafters."' Demarest v. Manspeaker, 498 U.S. 184, 190-91 (1991) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564 (1982)). "In looking for the plain meaning of a statutory term, [the court] refer[s] to the specific context (usually the subsection) in which the term is used." National Coalition for Students with Disabilities Educ. & Legal Defense Fund v. Gilmore, 152 F.3d 283, 290 (4th Cir. 1998).
Section 1973gg(b)(1) of the NVRA states that its purpose is "to establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office." The statute sets forth mandatory procedures for states in registering voters and mandatory requirements for states in administering voter registration, including removal of voters from registration rolls. The question of whether voter registration applications are subject to public disclosure arises in the context of the procedure for removing voters from registration lists. Given this emphasis of the statute, it cannot reasonably be interpreted to cover the registration applications of people who never enter these lists.
Upon registration, § 1973gg-6(a)(3)-(4) prohibits the removal of an individual's name from the list of eligible voters except: (1) at the registrant's request; (2) by reason of criminal conviction or mental incapacity as provided by state law; (3) by
ll

Case 2:10-cv-00075-RBS -DEM Document 9 Filed 03/26/10 Page 12 of 23 PageID# 46
reason of death; or (4) by reason of a change in residence in accordance with § 1973gg-6(b)-(d). In an effort to ensure that a registered voter cannot be removed from the registration rolls by a failure to vote or because of a change of address, the statute strictly limits when a state may remove the name of a registrant from voting rolls because of an address change. See42 U.S.C. § 1973gg(b). The House Report for this law states that the above procedure "attempts to incorporate an underlying purpose of [the NVRA]; that once registered, a voter should remain on the list of voters so long as the individual remains eligible to vote in that jurisdiction." See H.R. Report No. 103-9, at 16, reprinted in 1993 U.S.C.C.A.N. 105, at 122.5
To further this purpose, under § 1973gg-6(d), the registrant's name may be removed from the list of registered voters only as follows: (1) the registrant "confirms in writing that the registrant has changed residence to a place outside the registrar's jurisdiction in which the registrant is registered"; or (2) the registrant "has failed to respond to a notice" of the disposition of the application and "has not voted or appeared to vote (and, if necessary, correct the registrar's record of the registrant's address) in an election during the period beginning on the date of the notice and

If a court

that a

language is any way unclear, a court should consult

history when interpreting that statute. Dominion Resources, Inc. v. United -"L"''""""'

219 F.3d 359, 365 (4m 2000).

12

Case 2:10-cv-00075-RBS -DEM Document 9 Filed 03/26/10 Page 13 of 23 PageID# 47
ending on the day after the date of the second general election for Federal office that occurs after the date of the notice."6
Most pertinent to the case at hand, the NVRA's Public Disclosure Provision, 42
U.S. §§ 1973gg-6(i), provides that:
(1) Each state shall maintain for at least 2 years and shall make available for public inspection and, when available, photocopying at a reasonable cost, all records concerning the implementation of programs and activities conducted for the purpose ofensuring the accuracy and currency ofofficial lists ofeligible voters ...
(2) The records maintained pursuant to paragraph (1) shall include lists of the names and addresses of all persons to whom notices described in subsection (d)(2) are sent, and information concerning whether or not each such person has responded to the notice as of the date that inspection of the records is made.
(Emphasis added). This statute mandates public access to records that prove the
states are properly maintaining lists of registered voters. But the plain language of the
statute belies any intent to mandate public inspection of completed, individual voter
registration applications to achieve that end. The statute neither directly mentions such
applications, nor suggests that they must be available for public inspection.

To ensure the maintenance of accurate registration rolls, the NVRA requires states to use

reliable information from government agencies such as the U.S. Postal Service's change of

address records.

42 U.S.C. § 1973gg-6(c)(1). This is the National Change of Address or

"NCOA" program discussed in this Memorandum. The statute also details specific procedures

for confirming voter addresses, for following up a voter's failure to return the postage prepaid

and pre-addressed return card, and for voting following a failure to return the return card, so

that a voter is not denied the opportunity to vote.

42 U.S. §§ 1973gg-6(d) and (e).

13

Case 2:10-cv-00075-RBS -DEM Document 9 Filed 03/26/10 Page 14 of 23 PageID# 48
In fact, Section 1973gg-6(i)(2), which sets forth the types of records subject to disclosure, states that the "records maintained pursuant to paragraph (1) shall include lists of the names and addresses of all persons to whom notices described in subsection (d)(2) are sent, and information concerning whether or not each such person has responded to the notice ...." As a matter of law, the records demanded by plaintiff are thus not subject to disclosure.
The records subject to disclosure are exemplified by the list generated by the SBE, from information received by the general registrars, in accordance with the "NCOA [National Change of Address] Confirmation Notice." This is the notice described in subsection (d)(2). A copy of the NCOA notice is attached as Exhibit "B"; a copy of a sample page of the list is attached as Exhibit "C." Individual voter registration applications are distinct from and not part of those programs or activities. A copy of a Virginia Voter Registration Application is attached as Exhibit "D."
Guidance from the Federal Election Commission ("FEC") supports the defendants' argument. In 42 U.S.C. § 1973 gg-7(a) (4), Congress authorized the FEC to "provide information to the states with respect to the responsibilities of the state under this subchapter." In 1994, the FEC prepared a guide entitled, Implementing the National Voter Registration Act of 1993: Requirements, Issues, Approaches, and
14

Case 2:10-cv-00075-RBS -DEM Document 9 Filed 03/26/10 Page 15 of 23 PageID# 49
Examples ('FEC Guide//), to assist states/ compliance with the NVRA. A copy of pertinent pages of the FEC Guide is attached as Exhibit "E." 7
With regard to mandated record keeping requirements, the FEC cites to those records identified in § 1973gg-6(i)(2), i.e., lists of the names and addresses of persons to whom confirmation mailings were sent and information concerning responses to those mailings. The FEC also recommends that states might choose to retain records of the date and reasons for removals from the voter registration list or of declinations. See Exhibit "E," pp. 7-1 and 7-5.
Significantly, the FEC does not include voter registration applications within the scope of records specified, or suggested, for disclosure. See Exhibit "E," p. 7-1. The FEC also addresses the significance of confidentiality and suggests that states might choose to maintain the confidentiality of original voter registration documents:
States that request or require social security number on their voter registration form may want to explore this issue - especially in light
of the case of Greidinger v. Davis, 988 F.2d 1344 (4th Cir. 1993).
Ultimately, all States might want to consider maintaining the confidentiality of all originalvoter registration documents while providing public access to computerized lists ofregistered voters minus the confidential information. See Exhibit "E," p. 7- 5 (emphasis added).

forth that the FEC

not have legal authority

to interpret the Act or

to determine whether this or that procedure meets the requirement of the Act" and that the

document "is intended only as a general reference tool." See Exhibit "E/' p. P-1. However, the

offers guidance to the states

to this matter, regarding record keeping

requirements and the confidentiality individual voter registration records.

15

Case 2:10-cv-00075-RBS -DEM Document 9 Filed 03/26/10 Page 16 of 23 PageID# 50
In sum, 42 U.S.C. § 1973gg-6, read as a whole, shows Congressional intent to increase voter registration. In looking at the language and the specific context of § 1973gg-(b)(i), Congress intended to provide public disclosure only for records related to the procedures states use for voter registration and the maintenance of voter rolls (particularly with regard to accurate removal from those rolls), not for completed voter registration applications themselves. On this ground, the case should be dismissed.
2. Virginia Law Does Not Conflict with Federal Law Like the NVRA, Virginia law only allows for the public inspection of records pertinent to voter list maintenance. Under the Virginia statutory scheme, Va. Code § 24.2-444 establishes the duties of the general registrars and the S8E as to voter registration records and public inspection. Section 24.2-444(A) requires the S8E to provide general registrars with "lists of registered voters for inspection and lists of persons registering," and "lists of persons denied registration." These lists are open for public inspection. Section 24.2-444(8) is substantially similar to the NVRA's Public Disclosure Provision, 42 U.S. §§ 1973gg-6(i)(l). Virginia Code§ 24.2-444(8) states that: The general registrars shall maintain for at least two years and shall make available for public inspection and copying and, where available, photocopying at a reasonable cost, all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of the registration records pursuant to§§ 24.2-427, 24.2-428 and 24.2-428.1, including lists of the names and addresses of all persons to whom notices are sent, and information concerning whether each person has responded to the notice as of the date that inspection of the records is made.
16

Case 2:10-cv-00075-RBS -DEM Document 9 Filed 03/26/10 Page 17 of 23 PageID# 51
The three code sections specified in § 24.2-444(8) mandate the process - the "programs and activities"- by which the SBE and general registrars maintain, review, and keep current the lists of registered voters, i.e., the manner in which they engage in list maintenance. Section 24.2-427 specifies how registered voters may cancel their registration and mandates the cancellation of the registration of deceased persons and others disqualified to vote.
Section 24.2-428 requires the SBE to "establish a voter list maintenance program using the change of address information supplied by the United States Postal Service through its licensees or by other reliable sources to identify voters whose addresses may have changed." The statute mandates that "[a]ny such program shall be regular
and periodic and shall be conducted at least annually." Id.
Further, § 24.2-428 dictates the manner in which notices and prepaid and preaddressed return cards are sent to voters who have moved to different addresses, both in and out of the same county or city, and how general registrars must correct registration records from the information obtained from the return card. Section 24.2428.1 establishes "other procedures for assigning registered voters to inactive status" in addition to those provided for in § 24.2-428.
Finally, the Virginia Code mandates that: No list provided by the State Board under subsection A nor any record made available for public inspection under subsection B shall contain any of the following information: (i) an individuars social security number, or any part thereof; (ii) the residence address of an individual who has furnished a post office box address in lieu of his residence address as authorized by subsection B of§ 24.2-418; (iii) the declination by an individual to register to vote and related records; (iv) the identity of a voter
17

Case 2:10-cv-00075-RBS -DEM Document 9 Filed 03/26/10 Page 18 of 23 PageID# 52
registration agency through which a particular voter is registered; or (v) the day and month of birth of an individual. No voter registration records other than the lists provided by the State Board under subsection A and the records made available under Subsection B shall be open to public inspection. Va. Code § 24.2-444(C). Virginia thus permits public inspection of the same records accessible for public inspection under the NVRA, namely all records related to the maintenance, and ensuring the accuracy and currency of, voter registration lists. Together, Va. Code §§ 24.2-444, 24.2-427, 24.2-428 and 24.2-428.1 comport with the NVRA. They require, inter alia, that the SBE establish a voter list maintenance program with regular and periodic review, mandate the use of change of address information supplied by the United States Postal Service, and provide for notices and prepaid and pre-addressed return cards. These procedures generate records directly related to the maintenance of the voter registration lists. These records, "concern[] the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters.../' and therefore are available for public inspection under § 1973gg-6(i). Virginia's statutory scheme is no more restrictive than, and does not conflict with, the NVRA. In addition, the Virginia legislature has clearly expressed its intent to maintain the confidentiality of original voter registration documents, exactly as suggested by the
18

Case 2:10-cv-00075-RBS -DEM Document 9 Filed 03/26/10 Page 19 of 23 PageID# 53

FEC. In 2007, the Legislature amended Va. Code § 24.2-444(C) to prohibit public access to voter registration records. 8
Of added significance, the Virginia Voter Registration Application Form specifically states "this registration card will not be open to inspection by the public," in an effort to preserve applicants' privacy. See Exhibit "C." The Application also asks whether the registrant has ever been convicted of a felony or has ever been judged mentally incapacitated. Making this information public would have a chilling effect on voter registration and run directly counter to the express purpose of the NVRA. It would also be contrary to the confidentiality considerations of both the FEC and the Virginia Legislature.
3. Plaintiff's Preemption Claim Fails Absent a Conflict The Supremacy Clause provides that the "Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary

8 In Greidinger v. Davis, 988 F.2d 1344 (4th Cir. 1993), the Fourth Circuit held that voter

registration could not be conditioned on a requirement to allow public disclosure of personal

information. On remand, this Court approved, by consent decree, a Privacy Act notice for use

on Virginia voter registration applications: "[t]his registration card will not be open to inspection

by the public." Greidinger v. Davis, No. 3:91CV00476 (E.D.Va. Aug. 20, 1993).

In 2007, the Virginia Supreme Court, in Rivera v. Long, No. 070274, slip. op. (Va. Sup. Ct.

Feb. 8, 2008), permitted public inspection, under Virginia's FOIA, of invalid voter registration

applications and copies of letters

by Long to rejected applicants, with social security

numbers redacted. In response to Rivera, the Virginia General Assembly amended §

444(C) to ensure that no records available for public inspection contained social security

numbers.

The Virginia Legislature's increasing concern to limit access to personal information, such as

security numbers, is reflected in other statutes, including Va. Code §2.2-3808.1

(prohibiting state agencies from disclosing, among other things, SSNs); Va. Code § 18.2-186.2

(identity theft statute); Va. Code §2.2-3815 (prohibiting disclosure of SSNs under Virginia FOIA

disclosures); and Va. Code §24.2-1002.1 (making it a Class 5 felony to disclose or make an

unauthorized use of aSSN of any applicant for voter registration).

19

Case 2:10-cv-00075-RBS -DEM Document 9 Filed 03/26/10 Page 20 of 23 PageID# 54
notwithstanding." U.S. Canst Art. VI, cl. 2. Under the Supremacy Clause, the "'relative importance to the State of its own law is not material when there is a conflict with a valid federal law, for any state law, however clearly within a State's acknowledged
power, which interferes with or is contrary to federal law, must yield."' King v. McMillan, 594 F.3d 301, 309 (4th Cir. 2010) (quoting Felder v. Casey, 487 U.S. 131, 138 (1988)
(internal quotations and citations omitted)). Federal law may preempt state law in three ways: express preemption, field
preemption, and conflict preemption. H & R Block Eastern Enterprise~ Inc. v. Raskin
591 F.3d 718, 722 (4th Cir. 2010). Plaintiff maintains that preemption exists here because of a direct conflict between state and federal law. A state law is preempted to the extent it actually conflicts with federal law, either because compliance with both laws is impossible or the state law interferes with the accomplishment of Congressional
objectives or the methods chosen for meeting those objectives. College Loan Corp. v.
SLM Corp., 396 F.3d 588, 596 (4th Cir. 2005) (citing Gade v. Nat'/ Solid Wastes Mgmt
Assoc., 505 U.S. 88, 103 (1992)); 5. Blasting Servs. v. Wilkes County, 288 F.3d 584,
591 (4th Cir. 2002)). As addressed above, voter registration applications are not among the records
available for public inspection pursuant to the NVRA Public Disclosure Provision. There is no indication that Congress intended to grant the public access to the original voter registration applications as part of the statutory scheme to ensure the accuracy and currency of voter registration lists.
20

Case 2:10-cv-00075-RBS -DEM Document 9 Filed 03/26/10 Page 21 of 23 PageID# 55

Consequently, Virginia law, which permits access to the same records as does the NVRA, does not interfere with the accomplishment of Congressional objectives in the federal statute. In the absence of any conflict between the NVRA and Virginia law, plaintiff's preemption argument fails as a matter of law.
III. CONCLUSION
For these reasons, defendants Elisa Long and Nancy Rodrigues respectfully request that the Court dismiss plaintiff's claim, with prejudice.
Respectfully submitted, ELISA LONG Defendant

Jeff W. Rosen, Esquire Virginia Bar No. 22689 Attorney for Elisa Long
Pender & Coward
222 Central Park Avenue Virginia Beach, Virginia 23462 Phone: (757) 490-6253 Fax: (757) 497-1914 Email: jrosen@pendercoward.com
Lisa Ehrich, Esquire Virginia Bar No. 32205 Attorney for Elisa Long
Pender & Coward
222 Central Park Avenue Virginia Beach, Virginia 23462 Phone: (757) 490-6253 Fax: (757) 497-1914 Email: lehrich@pendercoward.com

Of Counsel

Case 2:10-cv-00075-RBS -DEM Document 9 Filed 03/26/10 Page 22 of 23 PageID# 56

NANCY RODRIGUES Defendant

Stephen M. Hall Virginia Bar No. 44132 Assistant Attorney General III Counsel for Defendant Nancy Rodrigues Office of the Attorney General 900 East Main Street Richmond, Virginia 23219 Phone: (804) 786-1586 Fax: (804) 371-2087 Email: shall@oag.state.va.us

Of Counsel

22

Case 2:10-cv-00075-RBS -DEM Document 9 Filed 03/26/10 Page 23 of 23 PageID# 57
CERTIFICATE OF SERVICE
I hereby certify that on the 26th day of March, 2010, I electronically filed the foregoing MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS with the Clerk of Court using the CM/ECF system, which will send a notification of such filing (NEF) to the following:
Augustin Marin Ripa Ropes & Gray, LLP 700 12th Street NW; Suite 900 Washington, DC 20005 Augustine.ripa@ropesgray.com
Jason Gassan Idilbi Ropes & Gray, LLP 700 12th Street NW; Suite 900 Washington, DC 20005 Jason. idilbi@gopesgray.com
Ryan Morland Malone Ropes & Gray, LLP 700 12th Street NW; Suite 900 Washington, DC 20005 Ryan. malone@ropesgray.com Attorneys for Plaintiff
Stephen M. Hall, Esq. Assistant Attorney General III Office of the Attorney General 900 East Main Street Richmond, Virginia 23219 Shall@oag.state. va.us Attorney for Defendant Nancy Rodrigues
Jeff W. Rosen, Esq. Virginia Bar No. 22689 Attorney for Elisa Long Pender & Coward 222 Central Park Avenue Virginia Beach, Virginia 23462 Phone: (757) 490-6253 Fax: (757) 497-1914 Email: jrosen@pendercoward.com
23

Case 2:10-cv-00075-RBS -DEM Document 9-1 Filed 03/26/10 Page 1 of 6 PageID# 58
EXHIBIT
I A

William C. Mims
Attorney General

COMMONWEALTH OF VIRGINIA
OIR~ ofthe Attorney General
September 23, 2009

900 East Main Street Richmond, Vifiinia 23219
804-786-2071 FAX 804-786-1991 Virginia Relay Setviccs
800-828-1120
7-1 - 1

Ms. Nancy Rodrigues Secretary, State Board of Elections II 00 Bank Street, First Floor Richmond, Virginia 23219
Dear Ms. Rodrigues:
The Supreme Court ofVirginia recognizes that construction of the Constitution and statutes of the Commonwealth by the Attorney General under § 2.2-505 of the Code of Virginia "is of the most persuasive character and is entitled to due consideration."1 The same status and weight, however, is not afforded informal opinions and advice rendered by deputy and assistant attorneys general. The views expressed herein do not constitute an opinion of the Attorney General under the provisions of§ 2.2-505. Consequently, this re~onse to your inquiry represents only the individual views of one of the counsel to the Attorney General.
Issue Presented
You ask whether the completed voter registration application of any individual is a part of the record of the implementation of programs and activities conducted for the purposes of ensuring the accuracy and currency of official lists of eligible voters covered by § 1973gg-6(i) of the National Voter Registration Act of 1993 ("NVRA"). 3
Response
It is my view that the completed voter registration application of any individual is not a part of the record of the implementation of programs and activities conducted for the purposes of ensuring the accuracy and currency of official lists of eligible voters covered by § 1973gg-6(i) of the National Voter Registration Act of 1993.
Background
You advise that in May 2009, representatives of the Advancement Project (the "Project") visited the Office of the General Registrar for the City of Norfolk (the ''Norfolk General Registrar"). You state

1
Barberv.

City

of Danville,

149Va.

418,424,

141

S.E.

126,

127

(1928);

see

also

Va.

Beach

v.

Va.

Rest.

Ass'n,

231 Va. 130, 135, 341 S.E.2d 198, 201 (1986); Bd. of Supvrs. v. Marshall, 215 Va. 756, 762, 214 S.E.2d 146, !50

(1975).

2
See

VA. CoDE

ANN.

§ 2.2-501

(2008)

(permitting

Attorney

General

to

appoint

such

deputy

and

assistant

attorneys general as may be necessary).

1
·42 U .S.C.S. §§ 1973gg to 1973gg- l 0 (LexisNexis 2000 & Supp. 2009).

Case 2:10-cv-00075-RBS -DEM Document 9-1 Filed 03/26/10 Page 2 of 6 PageID# 59

Ms. Nancy Rodrigues September 2009 Page2
that the Project's representatives requested copies of the voter registration applications of persons whose applications had been denied. The Norfolk General Registrar contacted the State Board of Elections (the "State Board") for guidance regarding the request. You relate that the State Board informed the Norfolk General Registrar that§ 24.2-444, as amended by the 2007 Session of the General Assembly4 (the "2007 Amendment"), did not permit any individual to obtain copies of voter registration regardless of whether social security numbers and dates of birth were redacted. An attorney for the Project subsequently corresponded with the Norfolk General Registrar and the State Board questioning the Board's interpretation and asserting that NVRA preempts Virginia law.
Further, you advise further that the 2007 Amendment to § 24.2-444 was enacted in response to litigation against the Norfolk General Registrar by a different Project representative. Pursuant to The Virginia Freedom of Information Act, 5 the Project representative was seeking copies of invalid voter registration applications and copies of the letters sent by the Norfolk General Registrar to the rejected applicants. 6 You relate that the General Assembly enacted the 2007 Amendment in response to Rivera to increase the protection afforded individual registration applications consistent with the express assurance in the Privacy Act notice on voter registration applications (the "Notice"). The Notice provides that "[t)his registration card will not be open to inspection by the public." You advise that the Notice was added to the registration form in response to Greidinger v. Davis, 7 in which the Court of Appeals for the Fourth Circuit held that registration to vote could not be conditioned on a requirement to allow public disclosure of social security account numbers. 8 Upon remand, the United States District Court for the Eastern District of Virginia, by consent decree, approved the Privacy Act notice currently used in voter registration applications. 9 Since the Greidinger decision, you advise that the Commonwealth has enacted legislation, the Government Data Collection and Disseminations Practices Act, protecting individual information contained in government databases. You note that the Data Collection Act requires advance notice to the subject of the records before the records are provided to any third party who does not have regular access.
You explain that under the 2007 Amendment, a registrar must provide public inspection lists of persons registered and denied registration. You assert that these lists strike a balance between voter advocacy groups' interest in monitoring general registrars and the legitimate privacy expectations of voters. Further, you state that the lists protect the administration of elections from the undue interference that can result when advocacy groups request that the redacted copies they are seeking take precedence over the registration of voters and the mailing of absentee ballots.

Rivera v. Long, No. 070274, F.2d 1344 (4th Cir.

437-38,447, 451, resr>ecttveJv. 2.2-3700 to 2.2-3714 op. (Va. Sup. Ct. Feb. 8, 2008).

ure:I<ll!tgerv.

No. 3:91CV00476, *l (E.D. Va.

£"""""'ina that Commonwealth "shall no

The District Court "",.'""'vt>n

Exhibit A of the consent order. !d. at *3.

(on file with this rt>ai<rtr:"tir"' or election records

Case 2:10-cv-00075-RBS -DEM Document 9-1 Filed 03/26/10 Page 3 of 6 PageID# 60

Ms. Nancy Rodrigues September 2009 Page 3

Applicable Law and Discussion
NVRA 10 became effective in the Commonwealth on March 6, 1996. 11 Section 1973gg(bXI) of NVRA provides that its purpose is "to establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office." In elections for federal office,§ 1973gg-2(a) of NVRA requires that each state establish procedures to register voters: (1) by application made simultaneously with an application for a driver's license pursuant to§ l973gg-3; (2) by mail application pursuant to§ l973gg-4; and (3) by application in person at registration sites in accordance with state law and at offices designated under§ 1973gg-5.

Once a person is registered to vote, § 1973gg-6(a)(3)-(4) limits the instances in which the name of a registrant may be removed from the list of eligible voters. A registrant's name may not be removed except: (1) at the registrant's request; (2) by reason of criminal conviction or mental incapacity as provided by state law; (3) by reason of death; or (4) by reason of a change in residence in accordance with § 1973gg-6(b}{d). 12 Section § 1973gg-6(e) establishes procedures for voting following a change of address. Section 1973gg-7 establishes restrictions on, and requirements for, a mail voter registration form. Section 1973gg-8 requires each state to designate a chief state election official to coordinate state responsibilities under NVRA. Finally,§§ 1973gg-9 and 1973gg-10 establish civil and criminal penalties for violations ofNVRA.

Section 1973gg-6 provides requirements that states must follow in the administration of voter registration. First, state election officials must "ensure that any eligible applicant is registered to vote in an election" whenever a valid voter registration form is postmarked or received by the appropriate state official no later than thirty days before the date of the election. 13 The appropriate state election official must then "send notice to [each] applicant of the disposition of the application." 14 As previously noted, a registrant's name may not be removed from the official list of eligible voters except at the registrant's request, due to criminal conviction or mental incapacity as provided by state law, the death of the registrant, or due to a change of the registrant's residence. 15 However, removal by reason of change of residence may be conducted only in accordance with specific requirements set forth in§ 1973gg-6(b)-(d). Specifically, § 1973gg-6(d) provides the circumstances under which a state may remove a name from voting rolls:

(I) A State shall not remove the name of a registrant from the official list of eligible voters in elections for Federal office on the ground that the registrant has changed residence unless the registrant~

(A) confirms in writing that the registrant has changed residence to a place outside

the

jurisdiction in which the

is

or

supra note 3 and

text.

Commonwealth v. United States, No. 3:95CV357-RLW (E.D. Va. Oct

u.s.c.s. §

2000).

Case 2:10-cv-00075-RBS -DEM Document 9-1 Filed 03/26/10 Page 4 of 6 PageID# 61

Ms. Nancy Rodrigues September 2009 Page4
(B)(i) has failed to respond to a notice described in paragraph (2); and
(ii) has not voted or appeared to vote (and, if necessary, correct the registrar's record of the registrant's address) in an election during the period beginning on the date of the notice and ending on the day after the date of the second general election for Federal office that occurs after the date of the notice.
One ofNVRA's central purposes is to expand dramatically the opportnnities for voter registration and to ensure that, once registered, voters could not be removed from the registration rolls by a failure to vote or because they had changed addresses. 16 To achieve this purpose, NVRA strictly limits removal of voters based on change of address and instead requires that, for federal elections, states maintain accurate registration rolls by using reliable ~formation from goverrnnent agencies such as the U.S. Postal Service's change of address records. 11 In NVRA, Congress "went even further by also requiring the implementation of 'fail-safe' voting procedures to ensure voters would not be removed from registration rolls due to clerical errors or the voter's own failure to reregister at a new address." 18
Because NVRA strictly limits removal of voters from the voting rolls, the procedures for confirming voter addresses and following up a failure to return the postage prepaid and pre-addressed return card are set forth in considerable detail. 19 The House Report of the Corrnnittee on House Administration (the "House Report"), in recorrnnending passage ofNVRA, makes it very clear that a state is prohibited
from removing the name of a registered voter by reason of a change in residence, unless the registered voter confirms in writing that he or she has changed residence outside the jurisdiction in which registered; or has failed to respond to a notice sent by the State and has not voted or a~eared to vote within two general elections for Federal office since the date of the notice. 201
In addition, NVRA provides a detailed procedure for voting following a failure to return the postage prepaid and preaddressed return card so a voter is not denied the opportunity to vote. 21 The House Report, also comments that § 1973gg-6(e) "attempts to incorporate an underlying purpose of [NVRA]; that once registered, a voter should remain on the list of voters so long as the individual remains eligible to vote in that jurisdiction."22
The only approved method for removing a voter's name from the roll of qualified voters by reason of a change of address is as provided in NVRA. 23 However, I note that the procedures in

also H.R. REP. No.

rem'int~:•d in 1993 U.S.C.C.AX 105, 118

reasons for

1993 U.S.C.C.A.N. at 120.

voters must follow

Case 2:10-cv-00075-RBS -DEM Document 9-1 Filed 03/26/10 Page 5 of 6 PageID# 62
Ms. Nancy Rodrigues September 2009
5
§ 1973gg-6(d) were mandated only with respect to federal elections. 24 Therefore, states are free to maintain a different voter registration system for state and local elections even though such action would create two different electorates.
In addition to the detailed procedures in NVRA for removal of voters' names from the list of qualified voters, § 1973gg-6(i) provides that:
(1) Each State shall maintain for at least 2 years and shall make available for public inspection and, when available, photocopying at a reasonable costs, all records concerning the implementation ofprograms and activities conducted for the purpose of ensuring the accuracy and currency ofofficial lists ofeligible voters.... (2) The records maintained pursuant to paragraph ( 1) shall include lists of the names and addresses of all persons to whom notices described in subsection (d)(2) are sent, and information concerning whether or not each such person has responded to the notice as of the date that inspection of the records is made. [Emphasis added.]
Any person in the Commonwealth who is not registered to vote and who has the qualifications required by the Constitution of Virginia and Title 24.2 is entitled to register to vote in Virginia. 25 Once a person is registered to vote in the Commonwealth, he remains registered to vote unless his refistration is cancelled. 26 The application to register to vote is a form prescribed bJ the State Board; 2 once it is completed by the voter, it is "kept and preserved by the general registrar." It is only after the application to register to vote is completed and a voter is added and maintained on the qualified voting list that the process of removing voters from such a list may begin. Therefore, it is my view that the act of registering, that is the application, to vote is separate and distinct from the act of verifying the addresses, and maintaining the list, of eligible voters pursuant to NVRA.
The application to register to vote is not a part of the program or activity conducted to ensure the accuracy and currency of the official registered voter list maintained by the State Board. 29 Instead, the program or activity records merely consists of the official registered voter list and all documents used in the National Change of Address ("NCOA") program of the U.S. Postal Service in the regular periodic review of the registration records. The House Report notes as follows:
By using the NCOA, a State may use change of address information to identify registrants whose addresses may have changed. If it appears from the information provided that a registrant has moved to a different address within the jurisdiction of the same voting registrar, the registrar is required to make the address change automatically and send the registrant a notice by forwardable mail and a postage prepaid pre-addressed return form by which the registrant may verify or correct the address information. If the r<'a1<~rr·anr appears to have moved to an address outside of the jurisdiction of the registrar,
CONST. art. II, CODEA!'.'N. § 24.2-417 VA.CoDEANN. §

Case 2:10-cv-00075-RBS -DEM Document 9-1 Filed 03/26/10 Page 6 of 6 PageID# 63

Ms. Nancy Rodrigues September 2009 Page 6
the registrar may not remove the name of the voter until the registrar has sent a notice to the registrant as provided in subsection (d).[301
A "statute's legislative history is the first tool of statutory construction a court utilizes to determine congressional intent when statutory language is unclear."31 Furthermore, in the Fourth Circuit Court of Appeals, "conference reports are the most persuasive evidence of legislative intent, after the statute itself."32 "In determining the meaning of the statute, [courts] look not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy."33 "In looking for the plain meaning of a statutory term, [the court] refer[s] to the specific context (usually the subsection) in which the term is used."34
It is all the documents that are generated during the regular periodic review of the registration records program that constitute the records that must be maintained for a period of two years and made available for public inspection and copying under § 1973gg-6(i). 35 Because the voter registration application is not a part of the regular periodic review of the registration records, it is not a record that must be made available for public inspection and copying.
Conclusion
Accordingly, it is my view that the completed voter registration application of any individual is not a part of the record of the implementation of programs and activities conducted for the purposes of ensuring the accuracy and currency of official lists of eligible voters covered by § 1973gg-6(i) of the National Voter Registration Act of 1993.
With kindest regards, I am
Sincerely,

1:213; I :941109-0561

Stephanie L. Hamlett Senior Counsel to the Attorney General

H.R. REPORT, supra note 18, at 15-16,

in 1993 U.S.C.C.A.N. at 119-20.

31
Dominion Res., Inc. v. United States, 219 F.3d 359, 365 (4th Cir. 2000).

Cotltatlllcr, Inc., 78 F.3d 881 (4th Cir. 1996).

152 F.3d 283, 290 (4th Cir.

refers to the list of nrunes at!d addresses to whom notices are to be sent

I note also that §

of the

Code

that

voter registrauc•n

nrrmHlP.rt by the State Board ... shall be open to public tnspe<:tlon.

Case 2:10-cv-00075-RBS -DEM Document 9-2 Filed 03/26/10 Page 1 of 3 PageID# 64

- - -- --------- -·--·- -
VA STATE BOARD OF P.O. BOX 85669 Richmond, VA 23255-5669

·· r ·-·- --- ··- -··-·

·1 - - ···· ·-

SEE BACK FOR OPENING INSTRUCTIONS

NONPROFIT ORG U.S. POSTAGE PAID

.. RETURN SERVICE REQUESTED ~-E- XHIB-IT -

VA STATE BOARD OF ELECTIONS

I I

.. ';

Case 2:10-cv-00075-RBS -DEM Document 9-2 Filed 03/26/10 Page 2 of 3 PageID# 65

DO WE HAVE YOUR CORRECT ADDRESS?

Dear Voter:

Information from the Post Office suggests you may have moved, but we can t change your voter registration address without your signature. Please help us update your registration record by completing the form below.

The first address shown on the form is the address at which you are currentl registered to vote. If a second address is shown, that is the address the Post office has for you. If neither of ese addresses is correct, please provide your correct home address In the space labeled ..other." We must ha e a stteet address or rural route
address for voting purposes. We cannot accept a PO Box.

When we receive your completed card, we will update your record. If your a dress has changed but is still in Virginia, your local registrar will update your registration and send you a ne voter card. If you have moved out of the state, your Virginia voter registration will be canceled.

To ensure you are eligible to vote in future elections in Virginia, we must be otifled of your correct address.
Otherwise, your eligibility to vote will be questioned and you will be required o affirm your address in writing the next time you vote. If you do not vote within two federal elections, you be removed from the voter registration list.

Thank you for helping us keep your voter registration accurate and up to date Please call Une H Phone # if you have any questions.

J, Pleaae detoclt and rellml in envelope provided • ISO postage lleCU!ItUJI .l Line I I

Une 0 reg. name'XX>OOC~XX)IOOOOOC!OO<JOOOOCOOCXX)IOOOOOC~XXZ

Une P reg.

Une Q dob

Une R

NEW NAME (if changed):

CHECK WHICH ADDRESS IS YOUR CORRECT HOME (RESIDENCE) AD

(Mllluuy please dleck your address of reconl; full lime sludelll5 please dleck your perDIIIIIellt ltddnlss)

0 Where you are mgistered to vote:

~:

0

Other (can

LbJ 8 ResG:Ir ·~
LbJ T Res ad*~
LbJUReslltt~

IJieVUalllltt1~ IJieWitalllltt~
IJieXUalllltt~---+----------

or law enfm'C<!1111mt \"""'' .,........, Y011 must show a Vuginla P.O.
(CIIeck ODe) 0 Law Eaforcemmt Officer 0 Pmledive Order 0 Tlmlatmed~Sta~ked 0 AddreH Coofld

Case 2:10-cv-00075-RBS -DEM Document 9-2 Filed 03/26/10 Page 3 of 3 PageID# 66

1111

No Postage Necessary If Mailed In The
United Stales

BUSINESS REPLV MAIL
FIRST..ct.ASSMAil PERMITN0.1909 RICHMOND, VA POSTAGE Will BE PAID BY ADDRESSEE
Une A name BREOOCIOOC)OOOOC:IOOC)OOOOC:IOOC:x>OOOC:>OOitZ
U.. B Locallly BREOOOOOOOOCOOOIOOCIOOCIOO<X)O(XXZ Une C addr 1 BREOOCIOOC)OOOOC:IOOC:x>OOOCIOOCOOOOOCXZ
UneDaddr2BRIOO<>OOIOOO<XX>OOI00000<)()()00000<XZ UneEaddr3BRIOO<I0000000<)()()0000<X)()()00000<XZ

1.1 •• 1.1 .. 1.1.. t.1••1.1••1.1•• 1.1•• 1.1•• 1.1•• 1.1, .1.1., I,J, .II

Case 2:10-cv-00075-RBS -DEM Document 9-4 Filed 03/26/10 Page 1 of 4 PageID# 70

Virginia

EXHIBIT
I

Voter Registration

Application Form

Instructions

You are not officially registered to vote until this application is approved. You should receive a Voter Card in the mail. If you do not receive this acknowledgement within 30 days after mailing this form, please contact your city or county voter registration office or the State Board of Elections. If you are already registered to vote with your current name and address, you do not need to re-register. If you have any questions regarding your voter registration status, please call your local Voter Registration Office.

Identification Requirement

For Registration If you are registering for the first time by mail, federal law (the Help America Vote Act) requires you to provide identification. To avoid delays, please enclose a copy of one of the following documents that shows your name and address with your application: (1) current and valid photo 10, 121 current utility bill, {31 bank statement, (4) government check, (51 paycheck, or (6) other government document. You can also present this required identification at the polls but may experience delays.
For Voting Virginia law requires every voter voting in person to show identification or sign a statement subjectto felony penalties for false statements pursuant to §24.2-1016, that the person is the named registered voter.

Mailing Instructions

· Place completed application in an envelope. · Write your name and return address on envelope.
Write the address of the voter registration office forthe county or city where you live. list provided on the next page. · Must be postmarked at least 29 days before the next Primary or General Election in which you plan to vote. 122 days before starting 1/1/20101

Privacy Act Notice: Article II, Section 2 of the Constitution of

(19711 requires that a person registering to vote provide his or ner social

security number, if any. Therefore, if you do not provide your social security number, your application for voter registration will be denied.

Section 7 of the Federal Privacy Act (Public law Number 93-579) allows the Commonwealth to enforce this requirement but also

that you be advised that state and local voting officials will use the social security number as a unique identifier to ensure that no person is

registered in more than one place. This registration card will not be open to inspection by the public. Your social security number will appear

on reports produced only for official use by voter registration and election officials, and for jury selection purposes by courts.

WARNING: INTENTIONAllY VOTING MORE THAN ONCE IN AN ELECTION DR MAKING AMATERIALLY FALSE STATEMENT ON THIS FORM CONSTITUTES THE CRIME OF ELECTION FRAUD, WHICH IS PUNISHABLE UNDER VIRGINIA lAW AS AFELONY. VIOLATORS MAY BE SENTENCED TO UP TO 10 YEARS IN PRISON, OR UP TO 12 MONTHS IN JAil AND/OR FINED UP TO $Ufl0.

VA./MIA·! l/ll!l

Case 2:10-cv-00075-RBS -DEM Document 9-4 Filed 03/26/10 Page 2 of 4 PageID# 71

list of Voter Registration Offices Chesterfield Coonty

Gt-•County

Mecklenburg County

Aoanoka County

(General Registrar) as of 7/1/2009 PO Box 1690 Chesterfield, VA 23832-1600

POBox341 Stanardsville, VA 22973-ll341

PO Box ii36 Boydton, VA 23917{)436

PO Box 20864 Roanoke, VA 24019.()089

Acconulck County
PO Box97 Aceomac, VA 2330Hl097 (757) 7B7 ' 2935 Albemarkt County PMB 404, 536 Pantoos Center Chatlottesvilla, VA 22911
!4341972 4173

{904) 748 1471 Clllrb County
PO Box555 Berryville, VA 2261l.o555 {5401 955 ' 5168 Colonial Hltight. City
POBox3401 Colonial He1gNs, VA 23834-0001 (804) 520 ' 9277

(434) 565 '5213 G..-willa County
PO Box 1092 Emporia, VA 23547-1092
(434) 348 ' 4228 Halifax Coonty
PO 8ox400
Ha~.VA24556{)4QO
(434)476 • 3322

{4341 739 ' 6191
~County
POBox356 Saluda, VA 23149.()358 !9041 756 ' 44:1:0 Montgomery County 755Roafl()1<e St. Ste. 1F Crnstial'sbtrg, VA 24073-3175 (540) 382 '5741

(5401 772 . 7500
Roanok• City POBox 1005 Aoencke, VA 24005-1095 (540) 853 2281
Rockbridge County 150 South Main St Lllldngton, VA 24450 (5401 463 ' 7203

Al""andria City 132 North Royal St Ste. 100 Alexandria, VA 22314.J2B3 (7931 B3B 4050
Alleghany County 110 Rosedale Ave, Ste. D Covington, VA 24426-1294 (5401966 1600

Covington Clty
1011A North Roc<bridge Ave C3vington. VA 24426-1534 [5401 965 5360 Ctllif!County POBox8 New Castle. VA 24127.0009 (540) 964 ' 6190

Hampton City
1919 Commerce Or, Ste. 200 HamotM, VA 23666 !7&7l727 6218 Hlii\OYIII'Coonty PO Box419 Hanover, VA 23069.()419 (904)365 6080

Nelson Coonty P0Box292 Lov.ngstoo, VA 22949.()292 {434) 263 ' 4089
New K- County PO Box 128 New Kent, VA 23124-0128 !9041856 . 9689

Rockingham Coonty 20 E. Gay Street Harrisonburg, VA 22002-4108 (540) 564 3055
Ruslall County P0Box363 Lebanon, VA 24266.()363 (276) 868 9006

Amalia County
PO Box4131 Amalia, VA 23002.()4131 (804) 561 3460
Amherst County PO Box550 Amherst, VA 24521-0650 (434)946' 931!1
Appomatox County

Culpeper County 151 N Main St Culpeper, VA 22701
15401825 0652 Cumbatland Coonty
PO Box 125 Cumberland, VA 23040.()009 19041 492 ' 4904 Danville City

HarrlsonbUfll City PO. Box 20031 Harrisonburg, VA 22901 (540)432 7707
Henrico County PO Box 90775 Henrico, VA 23273.0775 (804)501 . 4347
Henry County

Newport H-. City
2400 Washington Ave Newport News, VA 23007-4305 {7571 926 8883
Norfolk City
PO Box 1531 Norfolk, VA 23501-1531 (7571 964 ' 4353 Northampton Coonty

Salamtrtt:y
PO Box 203 Salam, 1/A 24153-o203 (540)375 3034 Scott County PO Box 1892 Gate City, VA 24251.J417 (2761386 ' 3643 SIMmancloah County

PO&xS Aopomatox. VA 24522.0008 (434) 352 ' 5302 Arlington Coonty 2100 Clarendon Blvd, Ste. 320 Arlington, VA 22201 ·5400 1703) 228 3456 Augusta County PO Box590 Verona, VA 24482.0590 1540) 245 ' 5656
Bath County PO Box 157 Warm Sp• ngs, VA 24484.0157
(5401 839' 7266 Bedford County
County Admin Building
122 East Main St Ste. 204 Bedford, VA 24523-2000 (540) 586 ' 7649 Bedford City 215 East Ma;n Straet Bedford, VA 24523·2012 (540) 567 ' 6007
Bland County POBox535 Bland. VA 24315.()535 (2761 688 ' 4441

515 MainSt Danville, VA 24641-1317 !4341 799 • 6560 Diek-n County PO&x1308 Clintwood, 1/A 24228-1308 12781 926 ' 1820
Dinwiddia County
POBox365 Dinwiddie, VA 23841.0365
(9041469' 4512
Emporia City PO Box 1002 Emporia, VA 23847-1092 14341 634 ' 9533
Esu11County PO Box 1561 Tapoahannoc~, VA 22560.1581
18041 443 ' 4611 Fairfn County
12000 Govt Ctr Pkwy, Ste. 323
one Fairfax, VA 22035{)081
17031222 FllirfnCity
10455 Armstrong St Sisson House Fairfax. VA 22030-3640 1703)365 . 7690

PO Box 7 Colrmsvdle, VA 24076-0007 (2761 B3B ' 5108 HI~~~B~ ~unty

Monterey, VA 24465.()356

(540) 468 . 2013

HopoweiiCity

309 North 2nd Ave

Hopewe'l. VA 23800-2704 (804) 541 2232

l&le of Wight Coonty

PO Box 77

Isla of Wtght, VA 23397.0077

(7571365 ' 8230

James City County

PO Box3567

Wil<amsburg, VA 23187-3567

Ki1n7o57&) 2a53.

.

-5668 County

PO Box 56

Kl1g & Queen CH, VA 2:ni50056

{904) 765 5980
KiP'S g:~~~~ounty

King George, VA 22465-1359
K'm15e40W) 7il7ll5ttm' 9C18o6unty

PO Box 510 Ealltvflle, VA 23347.0510 1757) 678 ' 0480
Northurnberhlnd Coonty
PO Box64 HeathsviUe, VA 22473-o064 !9041 580 ' 4655 Norton City
PO Box 225 Norton. VA 24273.0225 (2761679 . 1162 Nottoway Coonty PO Box 24 Nottoway, VA 23955.()024 (4341 545' 81413 Ot-ange County 146 Maoisor Rd, Ste. 204 Orange, VA 22980-1449 (540) 672 ' 5262
Peg• County 117 South Court St Luray, VA 22636-1289 (540) 743 ' 3996
Patrick County PO 9ox635 Stuart VA 24171-0635 (276) 694 . 7208
P~ersburg City

600 North Main St Ste. 103 Woodstock, VA 22664-1 865 15401459 6195
Smvth County 12'1 Bagley C,r, Ste. 108 Marion, VA 24354 {276) 783 4511
Southampton County PO Box 666 Courtland, VA 23837-<l666 (7571 653 ' 9260
Spotsylvania County PO Sox 133 Spotaylvan'a, VA 22553-ll133 15401507 . 7380
Stafford County P0Box301 Stafford, VA 22566.()301 (540) 656 4000
Suunton City PO Box 56 Staunton, VA 24402.()()58 (540) 332 ' 3540
Suffolk City PO Box 1966 Suffolk, VA 2:J439.1966 !7571514 '7751
Surry County

Bot-urt Coonty

Falls Church City

PO Box62 Fincastle, VA 24090-0062 (5401473 ' 8235

300 Park Ave, lim 101 E Falls Chu•ch, VA 22046-3332
(703) 2413 ' 5085

Bristol trlty

Fauquier Coonty

300 lee St

32 Waterloo St S!e, 207

Bristol. VA 24201-4327

Warrenton, VA 20186-3239

(2761645 . 7318

(540)347 ' 6972

BruMwick County 100 Tobacco St, Rm 103 Lawrenceville, VA 23866-1823 (4341 8413.4414

Floyd County 100 East Main St Am. 302 Floyd, VA 24091-2101 {540) 745 9350

Buchan•n County PO Box975 Grundy, VA 24614-0975 (276) 935 6534
Buckingham County

FluwnM County
PO Box44 Palmyra, VA 22983-o044 (434) 599 3593 Franklin County

P0Box222 Buckingham, VA 23921.0222 (434) 969 . 4304 Bu•na Vista City 2039 Sycamore Ave Buena Vista, VA 24416-3133 (540) 261 8605

70 East Court St. Ste. 302 Rocky Mount, VA24151-1720
(5401 4B3 ' 3025 Franklin City
PO Box42 Franklin, VA 23851 <1042 (757) 562 ' 8545

C.mpbell County

Fredtlrick County

PO Box 103 Rus!bwl!j, VA 24688.0103 1434)332 9579

107 North Kent St. Ste. 102 Winchester, VA 22601-6000 {5401 856 5660

Carolina County
PO Box304 Bowling Graen, VA 22427.0304 (804) 633 90B3

Fredaricksb\lrg City
ExeMlvef'fe:m 001 Caroune St. Ste, 100 Ftedef•Cksbu•g, VA 22401

Carroll County
G011emmenllll C.nter 605-3 Pirie St, B 110 f'illsv'le, VA24343-1404 12761 730 3035 Charles City County PO Box 146 Charlas City, VA 23030-0146

(5401372' 1030 Gain City
POBox 1045 Gall!x, VA 24333--1 045 12761 236 7509 Giles County 120 North Ma;r; St, Ste, 3 Pewbutg, VA24134·1625

1804) 652 4608

15401 921 . 2002

Charlotte County PO B<~X 118 Charlotte CH, VA 23923.0116 (434) 542 ' 5856
Charlottesville City PO Box911 Chatlottelilllille, VA 22902.0911 {4341 970 3250
C'*'-ke lrrty 411 Cedar Rd C'esapealte, VA 23322-5566

Glo-Coonty P09ox208
Glouces1er, VA 23081.0209 19041 693 3559 Goochland Coonty PO Box 1013
GoOChland, VA 23093·1 013 1904) 658 . 6003 Grayson Coonty PO Box4413 Independence, VA 24349.()4413

PO Box 173 King William, VA 23066-0173 (804) 769 . 4952 Lan•atar Coonty PO Box 169 Lancaster. VA 22503.0159 (904) 462 ' 5277
Lee County PO Box 363 Jonesville, VA 24263-o363 12761 3413 . n90
Lexington City
PO Sox 922 Lex.ngton, VA 24450.()922
(540)462 ' 3706 Loudoun County
801 Sycolin Rd, SE, Ste, 102 Leesburg, VA 20175-5686 (703)777 0390 louisa Coonty PO Box220 Louisa, VA 23093.()220 (5-10! 987 3427 Lunenberg County 160 Courthouse Sq Lunenberg, VA 2395Ul999 (434) 566 3071 lynchburg City 3236 Odd Fellows Rd Lynchburg, VA 24501
!4341647 1009 Madison Coonty
PO&x267 Mad<son, VA 2272UJ267 !5401 8413 !1533 Manassas City 9025 Center St Manauas, VA 20110.6403 {703) 257 ' 8230
Man- Park City City Hall. I Par'< Center Ct
aoos ManasSMPark, VA20111·2395
17031 335 .
Martinwilla City
PO Box 1323 Martinsvllle, VA 24114-1323 (2761403 5122
~Coonty
PO !!ox328 Mathews, VA23109.032!l (604) 725 . 3200

PO Box 1031
Pete1sbvg. VA 238()4..1031 (8041 733 ' 2390 Pittsylvania Coonty 110 Old Chatham Elementary Ln Chatham. VA 24531 (434) 432 ' 7971 Poquoson City bOO C1ty HaR Ave, Am. 139 Poquoson, VA 23662·1996 (7571 868 ' 3070 Portsmouth City
801 CrawfOfd St, 1st Fl
Portsmouth, VA 23704-38?2 (7571 383 ' 8644 Powh~an County 3834 Old Bucbngham Rd, Ste. G Powhatan, VA 23139-7061 {904) 599 ' 5604 Prince Edward Coonty PO BoxJ Farmville, VA 23901
Pr(i4n3c4e)G39u2r'u4•76C7ounty PO 8ox34 Prince George, VA 23975.()034 (904) 722 6746 Prine. William County
9250 Lee Ave, Suite 1 ManasSM. VA 20110-5564 17031792 6470 Pulaski County
52 West Main St, Ste. 300 Pulaski, VA 24301-5045 !5401560 2111 Rltdfotd C!tv West End Professions' Building 519 2nd St. lower level Radlmd, VA24141 !5401 731 3839 Rllppahannock County
f'09ox236 Wash•ng!on, VA 22747.0236 (540) 675 ' 5360 Aiehmond Coonty P0Box1000 Warst!W, VA22572-1000 !6041333 4772
Richmond City POBox61037 Richf'!10nd, VA 2326H 037 (604) 646 . 5950

P0Box264 Surry, 1/A 23883{)254 (757) 294' 5213 Sussex County PO Box 1302 Sussex. VA 23864.()302 143412413 . 1047 TeHWall County
PO 9ox201 T-well, VA 24651.0201 12761988 ' 1305
Vi~9'nolxa 6B2e4ac7h City
Virginia Beach, VA 23458.()247 {757) 386 . 8563 Warren Coonty 220 f'bth Commerce !we. Ste. 700 Front Royal, VA 22530 15401 B35 ' 4327 Washington County 25652 Lee Hwy, Ste. 1
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Case 2:10-cv-00075-RBS -DEM Document 9-4 Filed 03/26/10 Page 3 of 4 PageID# 72

Virginia Voter Registration Application Form

~Use this form to register to vote in Virginia or report a change in name or address. If you are already registered with your current name and address. you do not need to re-register.

To register to vote in Virginia, you must · Be a Unitlld States citizen · Be a resident of Virginia
· Be 18 years old by the next general election

· Have had your voting rights restored if you have ever been convicted of a felony
· Have ltad your capacity restored if you have ever been declared mentally incapacitated in a Circuit Court

~Starred(*) items are required. If you do not complete all of the items that are marked with*, your application may be denied. Once your local registrar approves your application, you will receive a voter card by mail.

*Are you a citizen of the United States *Will you be at least 18 years of age on or before If you checked "NO" in response to either of

of America? 0 YES 0 NO

the next General Election day? 0 YES 0 NO these questions, do not complete this form.

0 Male 0 Female
*Gender

*Date of Birth

Daytime Telephone Number

*last Name

*Residence (Permanent) Home Address

Apt/Unit/lot/Rm/Ste City/Town

Zip Code

If Rural Address or Homeless, please describe where you reside

ress (If differentl/ Virginia P.O.Box or Uniformed Service Address, if applicable

*Have you ever been convicted of a felony? 0 YES 0 NO State where convicted

If YES, have your voting rights been restored? 0 YES 0 NO If YES, when restored?

rn,rnA:.llJJ " Have you ever been judged mentally incapacitated? 0 YES 0 NO

•

If YES, has court restored you to capacity? DYES 0 NO If YES, when restored?

Registration Statement: I swear/affirm, under felony penalty for making willfully false material statements or entries, that the

information provided on this form istnae.l authorize the cancellation (entered in Box 7 below) of my current registration and I have

read the Privacy Act Notice on the front of this form. ~ "Signature (or mark if unable to

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*Previous Voter Registration Information-Commonwealth of Virginia

or another state.

0 Yes, I am registered to vote at another address in

or in another state. If YES, the information below must be cmnpleted:

Date of Birth

Social Security Number (last 4 digits required)

Case 2:10-cv-00075-RBS -DEM Document 9-4 Filed 03/26/10 Page 4 of 4 PageID# 73

Virginia Voter Registration Application Receipt

--~----~-----------------------uu'

Name of Applicant

Date

Name of group or individual receiving application

E-mail address

Oavtime telephone number of group or individual receiving application

No receipt is required for application completed in the Voter Registration Office.

If you have not received a Voter Card within thirty 130) days of submitting a Voter Registration Application, please coatact Ute Virginia State Board of Elections.

On-line: www.sbe.virginia.gov
Voice: 800 · 552 · 9745
m: 800. 200. 3466
Richmond local: 804 · 864 · 8901

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Case 2:10-cv-00075-RBS -DEM Document 9-5 Filed 03/26/10 Page 1 of 7 PageID# 74 EXHIBIT
j c:
Implementing the National oter Registration Act of 1993:
Requirements, Issues, Approaches, and Examples
Prepared by: The National Clearinghouse on Election Administration
Federal Election Commission Washington, D.C. January 1, 1994

Case 2:10-cv-00075-RBS -DEM Document 9-5 Filed 03/26/10 Page 2 of 7 PageID# 75

FEC Guida to lmptementmg the NVRA

111194

-

PREFACE

This document was prepared by the Federal Election Commission {FEC) pursuant to 2 U.S.C. 438{aX10) which requires the Commission to "serve as a national clearinghouse for the compilation of information and review of procedures with respect to the administration of Federal elections." In addition, the National Voter Registration Act of 1993 {NVRA) mandates that the FEC "provide information to the States with respect to the responsibilities of the States under this Act" [Section 9{a){4)] while Section 9 of the Joint Conference Committee Report on the NVRA states that "the conferees expect the Commission to play an advisory role to the States and to facilitate the exchange ofinformation among the States."
The purposes ofthis document are:
• to describe the requirements of the National Voter Registration Act (NVRA) of 1993 [Public Law 103-31, 42 U.S.C 1973gg et seq.]
• to identify the important issues relating to State implementation strategies and conforming State legislation, and
• to offer examples, where appropriate and available, of forms and procedures that have proved successful in jurisdictions around the nation.
It is very important to note, however, that the Federal Election Commission does not have legal authority either to interpret the Act or to determine whether this or that procedure meets the requirements ofthe Act. Indeed, the civil enforcement of the Act is specifically assigned to the Department ofJustice.
THIS DOCUMENT, THEN, IS INTENDED ONLY AS A GENERAL REFER· ENCE TOOL. ANY SUGGESTIONS CONTAINED IN THIS DOCUMENT ARE PURELY HEURISTIC AND ARE OFFERED WITHOUT FORCE OF LAW, REGULATION, OR ADVISORY OPINION. NO DECISION REGARDING THE IMPLEMENTATION OF ANY FORMS, PROCEDURES, OR CONFORM· lNG STATE LEGISLATION SHOULD BE MADE ON THE BASIS OF THIS DOCUMENT ALONE. SUCH DECISIONS SHOULD BE MADE ONLY AFTER CONSULTATION WITH YOUR STATE LEGAL AUTHORITY.

P-1

Case 2:10-cv-00075-RBS -DEM Document 9-5 Filed 03/26/10 Page 3 of 7 PageID# 76

FEC

111/94

CHAPTER 7 - RECORD KEEPING AND REPORTING REQUIREMENTS

This chapter addresses the record keeping and reporting requirements of the National Voter Registration Act and related confidentiality issues. There are three types ofrecord keeping requirements:
• those specifically cited in the Jaw
• those implied by the reporting requirements, and
• those that local election officials may wish to adopt for their own purposes
RECORD KEEPING REQUIREMENTS SPECIFIED IN THE LAW
The Act requires voter registration officials to maintain for at least 2 years and to make available for public inspection (and, where available, for photocopying at a reasonable cost), "all records concerning the implementation ofprograms and activities conducted for the purpose ofensuring the accuracy and currency of official lists ofeligible voters, except to the extent that such records relate to a declination to register to vote or to the identity of a voter registration agency through which any particular voter is registered" [Section B(iXl)]. And according to Section 8(iX2), these records are to include:
• lists ofthe names and addresses ofall persons to whom confirmation mailings were sent (see Chapter 5 above), and
• information concerning whether or not each such person responded to the mailing as of the date that the records are inspected.
As a matter of prudence, though not as a requirement of the Act, States might also want to retain for the same period of time all records of removals from the voter registration list - the date and the reason.
The purposes of such record keeping are two-fold. First, such records enable the registrar to maintain an accurate "inactive" file as described in Chapter 5. Second, they enable interested private and public agencies to ensure that "list cleaning" activities are nondiscriminatory and otherwise in accordance with the NVRA.
Finally, although the Act does not specifically require that declinations be retained, States may nevertheless want to do so in order to maintain an audit trail, to ensure evidence should there be allegations of wrongdoing, and for the benefit ofthe agencies themselves.
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FEC Guide to Implementing the NVRA

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RECORD KEEPING IMPLIED BY THE REPORTING REQUIREMENTS

The law requires the Federal Election Commission to report to the Congress each two years on the impact of the NVRA on the administration of elections for federal office [Section 9{a)3] and grants the FEC regulatory authority to this end [Section 9(a)(l)J.
The FEC views this task as similar to the reporting procedures adopted pursuant to the Voting Accessibility for the Elderly and Act of 1984. That is to say, we envision a three-tier reporting pyramid with local election officials providing reports to the State, State election officials providing summary reports to the FEC, and the FEC preparing a report to the Congress.
We are unable, at this early date, to specify exactly what information the FEC might require of State and local election offices for the purpose of reporting to the Congress. This issue will require considerable consultation with the States. The FEC's objective is to be thorough but not burdensome.
Although the FEC is currently in the midst of research and rulemaking proceedings in order to determine what data are important yet practicable, our preliminary view is that the fo1lowing data are likely to be requested:
1. State Voting Age Population (to be obtained by the FEC from the Bureau of Census)
2. The number ofvoters registered in the federal general election two years previous to the most recent federal general election (from previous records at the FEC)
3. The number of voters registered in the most recent federal general election
4. The total number of new registrations received between the past two federal general elections
5. The total number of voter registration applications received from (or generated by) motor vehicle offices between the past two federal general elections, as well as the total number of these that were duplicates.
6. The total number ofvoter registration applications received by mail between the past two federal general elections, as well as the total number ofthese that were duplicates.
7. The total number of voter registration applications received from (or generated by) all public assistance agencies (except agencies primarily serving the disabled) between the past two federal general elections, as well as the total number ofthese that were duplicates.
8. The total number of voter registration applications received from (or generated by) all agencies primarily serving the disabled between the past two federal general elections, as well as the total number of these that were duplicates.

7-2

Case 2:10-cv-00075-RBS -DEM Document 9-5 Filed 03/26/10 Page 5 of 7 PageID# 78

FEC

theNVRA

1/1/94

9. The total number of voter registration applications received from (or generated by) Armed Forces recruitment offices between the past two federal general elec~ tions, as well as the total number of these that were duplicates.

10. The total number of voter registration applications received from (or generated by) all other designated or discretionary agencies between the past two federal general elections, as well as the total number of these that were duplicates.

11. The total number of voter registration applications received by all other means {in-person, deputy registrars, organized voter registration drives, etc.) between the past two federal general elections, as well as the total number of these that were duplicates.

12. The number of confirmations mailed out between the past two federal general elections in accordance with the NVRA

13. The number of responses to these confirmations mailings returned between the past two federal general elections

14. The total number of names that were, for whatever reason, deleted from the voter registration list between the past two federal general elections

15. The postal costs incurred between the past two federal general elections for all mailings requisite under the NVRA

16.In the first report, a general description ofthe State's implementation ofthe NVRA (with emphasis on which options were taken); and in subsequent reports, any changes made to the program

17. Problems encountered

By the same token, our preliminary view is that the following data willoot be requested:

• The number of persons registered between the past two federal general elections who voted in the past federal general election (either totally or by registration intake method).

• Any registration numbers or other information regarding specific participating offices or agencies.

• The number of declinations filed at agencies or offices.

a The number of persons

under the "fail-safe" provisions of the NVRA.

• The general or operating costs of implementing the NVRA.

We anticipate that the definitive list of data items required to be reported to the FEC will be promulgated in the second quarter of 1994.

'7-3

Case 2:10-cv-00075-RBS -DEM Document 9-5 Filed 03/26/10 Page 6 of 7 PageID# 79

FEC Guide to Implementing the NVRA

111194

OTHER RECORDS THAT ELECTION OFFICIALS MAY WISH TO KEEP

In addition to retaining the documents and records required either by the NVRA or by the Federal Election Commission, there are two other types of documents that election officials may want to have retained for their own purposes:
• the declination statements completed by applicants for public assistance, and
• any written affirmations required of fail-safe voters.
Ideally, the declination statement completed by each applicant for public assistance - whether it indicates that the applicant wishes to register to vote or declines to do so would contain the name of the applicant and the date the statement was completed. This could be accomplished preferably by having the applicant sign and date the completed statement or else by having the service agent note the name and date on the statement.
If the name and date are affixed to the declination statement, it could then be removed from the applicant's case file and retained separately by the agency under secure and confidential conditions.
There are several reasons why such a procedure recommends itself. First, it would provide an audit trail of all such transactions should there be subsequent official or legal enquiries. (Indeed, the Election Crimes Branch of the Department ofJustice has indicated that declination statements may fall under the 22-month document retention requirements of 42 U.S.C. 1974 et seq.). Second, in the event that there are subsequent official or legal enquiries, such a procedure would facilitate an investigation while ensuring the confidentiality of the public assistance case files. And third, should the agency be reimbursed for its voter registration activities through federal matching funds, such a procedure would provide clear evidence of all such activity.
For many of the same reasons, election officials may want to securely retain any written affirmations that State law may require of fail-safe voters on election day (although whether or not to require written affirmations from such voters is optional under the NVRA). Again, such records would provide an audit trail for any subsequent legal enquiry and in any event would clearly fall under the 22-month document retention requirements of 42 U.S.C. 1974 et seq.

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IMPORTANT ISSUES IN RECORD KEEPING

The most significant issue regarding record keeping is confidentiality. The law specifically prohibits the public disclosure of information regarding any individual's declination to register or regarding the specific public assistance agency or motor vehicle office through which any particular individual registered [Sections 5(b), 5(cX2)(D)(iii), 8(i)(l), and 7(a)(7)).
Yet information regarding the total number and rate of persons registered by each social service agency might prove valuable to local election officials and public interest groups even if such detailed information is not requested by the FEC.
The problem is that voter registration documents and records are generally considered public documents and, indeed, are often used for other purposes such as verifYing petitions. Thus, in order to prevent divulging the public assistance agency or motor vehicle office through which any particular applicant registered, procedures must be created to obtain aggregate numbers by agency without identifYing the agency in any decipherable way on the original voter registration document. (See also the djscussions of accounting for motor voter registration forms in Chapter 2, accounting for mail registration forms in Chapter 3, and accounting for agency registration forms in Chapter 4).
Another confidentiality issue is the public disclosure of a registrant's social security number. States that request or require social security number on their voter registration form may want to explore this issue - especially in light of the case of Greidinger v. Davis, 988 F.2d 1344 (4th Cir. 1993). Ultimately, all States might want to consider maintaining the confidentiality of all original voter registration documents while providing public access to computerized lists of registered voters minus the confidential information.
Alternately, States might want to consider requesting only the last four digits of an applicant's social security number -thereby providing a sorting number while not compromising the confidentiality of the applicants whole number.
Finally, States might want to review their own confidentiality laws regarding the voter registration records of certain protected individuals such as law enforcement officers, abused spouses, stalker victims, public personalities, and the like. This issue is especially important in light of the Act's public disclosure requirements (Section 8(i)(2)].

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 Case 2:10-cv-00075-RBS -DEM Document 19 Filed 04/09/10 Page 1 of 28 PageID# 110

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

PROJECT VOTE/VOTING FOR AMERICA, INC. 737 ½ 8th St SE Washington, DC 20003
Plaintiff,
v.
ELISA LONG, In Her Official Capacity as General Registrar of Norfolk, VA City Hall Building, Room 808 810 Union Street Norfolk, VA 23510
NANCY RODRIGUES, In Her Official Capacity as Secretary, State Board of Elections, Washington Building, First Floor 1100 Bank Street Richmond, VA 23219
Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO.: 2:10cv75 ) )
)
) )
)
)
)
)
)
)
)

PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS AND SUPPORTING MEMORANDUM OF LAW

Case 2:10-cv-00075-RBS -DEM Document 19 Filed 04/09/10 Page 2 of 28 PageID# 111
TABLE OF CONTENTS
Page INTRODUCTION ........................................................................................................................1 BACKGROUND ..........................................................................................................................1 STANDARD OF REVIEW ..........................................................................................................3 ARGUMENT ................................................................................................................................4 I. Project Vote Has Standing Because of the Direct Informational Injury Sustained
by the Defendants’ Denial of the Requested Records.........................................................4 A. Project Vote Has Standing to Bring This Action Because It Suffered an
Informational Injury...................................................................................................4 II. Project Vote Has Stated a Claim Upon Which Relief can be Granted Because
Defendants Have Withheld Information in Violation of the NVRA ..................................8 A. Defendants’ Refusal to Grant Access to the Requested Records Violates
the NVRA Because Its Public Disclosure Provision Requires that Completed Voter Registration Applications be Made Available for Inspection and Copying....8 1. The Court’s Analysis Should Focus on the Plain Language of the Public
Disclosure Provision ........................................................................................9 2. The Plain Language of the Public Disclosure Provision Requires
Disclosure of Completed Voter Registration Applications............................10 3. Evaluating Voter Registration Applications is an Activity Conducted
to Ensure the Accuracy and Currency of Official Lists of Eligible Voters ...13 4. Other Principles of Statutory Construction Also Support the Conclusion
that Voter Registration Applications Must Be Produced...............................15 5. The Defendants’ Narrow Interpretation of Their Obligations Runs
Afoul of the Plain Language of the Public Disclosure Provision and Violates the NVRA ........................................................................................17 B. Project Vote Has Stated a Claim for Relief Under the NVRA Civil Enforcement Provision Based On Defendants’ Continued Violation of the NVRA............................................................................................................20 CONCLUSION...........................................................................................................................21
i

Case 2:10-cv-00075-RBS -DEM Document 19 Filed 04/09/10 Page 3 of 28 PageID# 112

TABLE OF AUTHORITIES

CASES

Page(s)

Adams v. Bain, 697 F.2d 1213 (4th Cir. 1982) ...................................................................................................3

Adcock v. Freightliner LLC, 550 F.3d 369 (4th Cir. 2008) .....................................................................................................3

American Canoe Ass’n, Inc. v. City of Louisa Water & Sewer Comm’n, 389 F.3d 536 (6th Cir. 2004) .....................................................................................................5

Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009)................................................................................................................3

Bensman v. United States Forest Serv., 408 F.3d 945 (7th Cir. 2005) .....................................................................................................5

Chiron Corp. v. NTSB, 198 F.3d 935 (D.C. Cir. 1999) ...................................................................................................5

College Loan Corp. v. SLM Corporation, 396 F.3d 588 (4th Cir. 2005) .............................................................................................20, 21

Cummock v. Gore, 180 F.3d 282 (D.C. Cir. 1999) ...................................................................................................5

Discover Bank v. Vaden, 396 F.3d 366 (4th Cir. 2005) .................................................................................10, 11, 12, 18

E.P.A. v. Mink, 410 U.S. 73 (1973).....................................................................................................................7

FEC v. Akins, 524 U.S. 11 (1998).............................................................................................................4, 5, 6

Fed. Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95 (1941)...................................................................................................................19

Friends of Animals v. Salazar, 626 F. Supp. 2d 102 (D.D.C. 2009) ...........................................................................................5

Gordon v. Liberty Mut. Ins. Co., 675 F. Supp. 321 (E.D. Va. 1987) ...........................................................................................19

ii

Case 2:10-cv-00075-RBS -DEM Document 19 Filed 04/09/10 Page 4 of 28 PageID# 113
Grant ex rel. Family Eldercare v. Gilbert, 324 F.3d 383 (5th Cir. 2003) .....................................................................................................5
Greidinger v. Davis, 988 F.2d 1344, 1355 (4th Cir. 1993) .......................................................................................19
Harkless v. Blackwell, 467 F. Supp. 2d 754 (N.D. Ohio 2006), rev’d on other grounds, Harkless v. Brunner, 545 F.3d 445 (6th Cir. 2008) .....................................................................................................7
I.N.S. v. Nat’l Center for Immigrants’ Rights, Inc., 502 U.S. 183 (1991).................................................................................................................15
Jenkins v. Ousse, 145 F.3d 359, 1998 WL 307588 ..............................................................................................13
Jenkins v. Ousse et al., Case No. 96-2613, Dkt. No. 3 (W.D. La November 12, 1996) ...................................12, 20, 21
Lamie v. United States Trustee, 540 U.S. 526 (2004)...................................................................................................................9
Nat’l Coal. for Students with Disabilities Educ. & Legal Def. Fund v. Allen, 152 F.3d 283 (4th Cir. 1998) ...............................................................................................9, 12
Nemet Chevrolet, Ltd. v. Consumersaffairs.com, Inc., 591 F.3d 250 (4th Cir. 2009) .....................................................................................................3
North Carolina ex rel. Cooper v. Tenn. Valley Auth. 515 F.3d 344 (4th Cir. 2008). ....................................................................................................9
Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440 (1989)...........................................................................................................4, 5, 6
Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765 (4th Cir. 1991) .....................................................................................................3
Rosmer v. Pfizer, Inc., 272 F.3d 243 (4th Cir. 2001) .............................................................................................10, 11
Salt Institute v. Leavitt, 440 F.3d 156 (4th Cir. 2006) .....................................................................................................6
Sierra Club v. Morton, 405 U.S. 727 (1972)...................................................................................................................7
South Carolina Educ. Ass’n v. Campbell, 883 F.2d 1251 (4th Cir. 1989) ...........................................................................................15, 17
iii

Case 2:10-cv-00075-RBS -DEM Document 19 Filed 04/09/10 Page 5 of 28 PageID# 114
Stephens ex rel. R.E. v. Astrue, 565 F.3d 131 (4th Cir. 2009) .....................................................................................................9
United States Student Ass’n Found. v. Land, 585 F. Supp. 2d 925 (E.D. Mich. 2008).....................................................................................7
United States Student Ass’n Found. v. Land, 546 F.3d 373 (6th Cir. 2008) ...................................................................................................20
United States v. Abdelshafi, 592 F.3d 602 (4th Cir. 2010) .....................................................................................................9
United States v. Rocha, 916 F.2d 219 (5th Cir. 1990) .............................................................................................10, 11
Warth v. Seldin, 422 U.S. 490 (1975)...................................................................................................................3
Willenbring v. United States, 559 F.3d 225 (4th Cir. 2009) ...............................................................................................9, 17
Young v. Fordice, 520 U.S. 273 (1997)...........................................................................................................20, 21
STATUTES 2 U.S.C. § 434(a)(11)(B) .................................................................................................................6 5 U.S.C. app. 2 § 10(b) ....................................................................................................................6 42 U.S.C. §§ 1973gg et seq............................................................................................................15 42 U.S.C. § 1973gg(a)(3)...............................................................................................................17 42 U.S.C. § 1973gg(b) ...................................................................................................................16 42 U.S.C. § 1973gg-5 ....................................................................................................................12 42 U.S.C. § 1973gg-5(a)(2) ...........................................................................................................12 42 U.S.C. § 1973gg-5(a)(6)(B) ......................................................................................................12 42 U.S.C. § 1973gg-6 ....................................................................................................................16 42 U.S.C. § 1973gg-6(i).................................................................................................................16 42 U.S.C. § 1973gg-6(i)(1) .................................................................................................... passim 42 U.S.C. § 1973gg-6(i)(2) ......................................................................................................18, 19
iv

Case 2:10-cv-00075-RBS -DEM Document 19 Filed 04/09/10 Page 6 of 28 PageID# 115 42 U.S.C. § 1973gg-9 ....................................................................................................................20 42 U.S.C. § 1973gg-9(b)(1) .............................................................................................................8 Va. Code § 24.2-101 ................................................................................................................13, 14 Va. Code § 24.2-400 ................................................................................................................13, 14 Va. Code § 24.2-417 ......................................................................................................................13 Va. Code § 24.2-418 ......................................................................................................................13 Va. Code § 24.2-422 ......................................................................................................................13
OTHER AUTHORITIES Federal Rule of Civil Procedure 12(b)(6) ........................................................................................3 U.S. Const. art. VI, cl. 2...........................................................................................................20, 21 Webster’s Third New International Dictionary (1134-35) ......................................................14, 15
v

Case 2:10-cv-00075-RBS -DEM Document 19 Filed 04/09/10 Page 7 of 28 PageID# 116
INTRODUCTION Plaintiff Project Vote / Voting for America, Inc. (“Project Vote”) brings this suit seeking access to inspect and copy completed voter registration applications as required by the National Voter Registration Act’s (“NVRA”) Public Disclosure Provision, codified at 42 U.S.C. § 1973gg-6(i)(1). Defendants move to dismiss the case and assert that Project Vote lacks standing and has failed to state a claim upon which relief can be granted. Project Vote has standing to sue on its own behalf because it is well-established that an informational injury such as that alleged by Project Vote constitutes a concrete injury-in-fact sufficient to establish Article III standing. Moreover, Defendants misconstrue the plain language of the Public Disclosure Provision, and their obligations thereunder, and attempt to redefine its terms through their own misinterpretations. Since Virginia law prevents compliance with the Public Disclosure Provision, such law is invalid under the Supremacy Clause of the U.S. Constitution. By denying Project Vote access to records to which it is entitled under the NVRA, Defendants have violated Project Vote’s rights, and Project Vote has therefore stated a claim upon which relief can be granted.
BACKGROUND As part of its ongoing voter protection work with the Advancement Project, a social justice organization, and other local community organizations in Virginia, Project Vote learned that the applications of ostensibly qualified students at Norfolk State University, a historically African-American public university located in Norfolk, Virginia, had been rejected by Defendant Long’s office in advance of the 2008 primary and general elections. (Compl. ¶ 14.) As permitted by the NVRA, Project Vote sought to inspect and copy the completed voter registration applications of individuals who had registered to vote from January 1, 2008 through October 31, 2008 and who were not registered to vote in time for the November 2008 election, as

Case 2:10-cv-00075-RBS -DEM Document 19 Filed 04/09/10 Page 8 of 28 PageID# 117
well as related documents that might identify the reasons the applications were rejected. (Compl. ¶ 15.)
Defendant Long denied Project Vote’s request on May 13, 2009, and an attorney at the Virginia State Board of Elections contacted Advancement Project to state that Defendant Long had correctly declined to permit inspection and copying of the requested records. (Compl. ¶¶ 1718.) On May 15, 2009, Advancement Project and Project Vote representatives traveled to Defendant Long’s office in Norfolk, Virginia, where they again requested and were again denied the opportunity to inspect or copy the materials. (Compl. ¶ 19.)
On June 22, 2009, Advancement Project and Project Vote wrote to Defendant Rodrigues to give notice of a violation of the NVRA and to request that Defendant Rodrigues undertake appropriate remedial measures.1 (Compl. ¶ 20.) The State Board of Elections requested an informal opinion of the Attorney General of Virginia, and Project Vote received that opinion on September 25, 2009. (Compl. ¶¶ 21-22.) Contrary to the plain language of the NVRA, the opinion concluded that “the completed voter registration application of any individual is not a part of the record of the implementation of programs and activities conducted for the purposes of ensuring the accuracy and currency of official lists of eligible voters . . . .” (Compl. ¶ 22.) The Defendants again denied Project Vote’s request for access to the records and, to date, have not made any of the records available to Project Vote. (Compl. ¶ 22-23.) Project Vote initiated this action to vindicate its rights under the NVRA.
1 Project Vote stated in this letter, and has repeatedly represented to Virginia officials, that it seeks only properly redacted copies of completed voter registration applications, with any Social Security Number information removed. Ex. A., Letter from Bradley E. Heard, Sr. Attorney to Nancy Rodrigues, Secretary, State Board of Elections at 6 (June 22, 2009).

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STANDARD OF REVIEW When ruling on a motion to dismiss for lack of standing, “trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.” Warth v. Seldin, 422 U.S. 490, 501 (1975). At the same time, the party bringing a case bears the burden to prove the existence of subject matter jurisdiction. Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). The Fourth Circuit has distinguished among “two critically different ways in which to present a motion to dismiss for lack of subject matter jurisdiction.” Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). The first approach is to contend “that a complaint simply fails to allege facts upon which subject matter jurisdiction can be based.” Id. The second is to challenge the jurisdictional allegations of the complaint as untrue. Id. Defendants take the first approach, asserting that Project Vote has failed to allege facts establishing either its own standing or representative standing. When ruling on a Rule 12(b)(6) motion to dismiss for failure to state a claim, courts are to accept all well-pled facts as true and construe the facts in the light most favorable to the plaintiff. Fed. R. Civ. P. 12(b)(6); Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950-51 (2009); Adcock v. Freightliner LLC, 550 F.3d 369, 374 (4th Cir. 2008). These alleged facts must simply “state a claim to relief that is plausible on its face” by producing “an inference of liability strong enough to nudge the plaintiff’s claims across the line from conceivable to plausible.” Nemet Chevrolet, Ltd. v. Consumersaffairs.com, Inc., 591 F.3d 250, 256 (4th Cir. 2009) (internal citations and quotations omitted).

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ARGUMENT I. Project Vote Has Standing Because of the Direct Informational Injury Sustained by
the Defendants’ Denial of the Requested Records. A. Project Vote Has Standing to Bring This Action Because It Suffered an
Informational Injury. Defendants’ argument that Project Vote lacks representative standing is a red herring, because Project Vote has not asserted that it has representative standing. Instead, Project Vote has actually claimed that it suffered a direct informational injury when it was denied access to records to which it was entitled under federal law. (Compl. ¶ 23.) This assertion of an informational injury is enough to establish standing. Clear and unambiguous Supreme Court and Fourth Circuit precedent establishes that informational injuries are sufficient for standing purposes. In Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440 (1989), the Supreme Court held that the denial of a Freedom of Information Act (“FOIA”) request brought under the Federal Advisory Committee Act (“FACA”) constituted an injury to confer Article III standing. The Court stated that “refusal to permit appellants to scrutinize the ABA Committee’s activities to the extent FACA allows constitutes a sufficiently distinct injury to provide standing to sue,” and that the Court’s prior decisions interpreting FOIA had never required more of a showing from those requesting information “than that they sought and were denied specific agency records.” Id. at 449. Thus, where a statute mandates the disclosure of information, and that information is refused to a party who seeks it, the party has suffered a redressable harm that confers Article III standing. The Supreme Court reaffirmed this principle in FEC v. Akins, 524 U.S. 11 (1998), a case that involved a request for records under the Federal Election Campaign Act (“FECA”). The plaintiffs in Akins asserted that their injury-in-fact consisted of the denial of their request to obtain information that FECA required to be made public. Again, the Court held that the injury

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was “concrete and particular. Indeed, this Court has previously held that a plaintiff suffers an ‘injury in fact’ when the plaintiff fails to obtain information which must be publicly disclosed pursuant to a statute.” Id. at 21 (citing Public Citizen, 491 U.S. at 449-450).
Various federal circuit and district courts have acknowledged the Public Citizen and Akins informational injury doctrine. For example, in American Canoe Ass’n, Inc. v. City of Louisa Water & Sewer Comm’n, 389 F.3d 536 (6th Cir. 2004), the Sixth Circuit found informational injury in an agency’s failure to comply with public disclosure requirements of the Clean Water Act. The Fifth Circuit held in Grant ex rel. Family Eldercare v. Gilbert, 324 F.3d 383 (5th Cir. 2003), that “the ‘inability to obtain information’ required to be disclosed by statute constitutes a sufficiently concrete and palpable injury to qualify as an Article III injury-in-fact.” Id. at 387 (quoting Akins, 524 U.S. at 21). Similarly, the D.C. Circuit held in Cummock v. Gore, 180 F.3d 282 (D.C. Cir. 1999), that, as a member of a committee regulated by the Federal Advisory Committee Act, the plaintiff had a right of participation that created a right to information, and that “she suffered an injury under FACA insofar as the Commission denied her requests for information that it was required to produce.” Id. at 290.
In the cases that have denied a plaintiff’s claim based on an informational injury, the denial was grounded not in the fact that an informational injury is insufficient to confer standing, but in the fact that the statutes at issue did not create rights to information. See, e.g., Bensman v. United States Forest Serv., 408 F.3d 945 (7th Cir. 2005) (denying plaintiff’s informational injury claim by finding that the Appeals Reform Act does not provide any explicit right to information); Chiron Corp. v. NTSB, 198 F.3d 935 (D.C. Cir. 1999) (finding that nothing in the NTSB organic statute gave petitioners the rights of participation and information they sought to enforce); Friends of Animals v. Salazar, 626 F. Supp. 2d 102 (D.D.C. 2009) (finding that § 10(c) of the

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Endangered Species Act contained a pubic disclosure requirement but that § 10(d) did not; permitting plaintiff to proceed on § 10(c) claim and denying claim under § 10(d)).
The Fourth Circuit embraced the Public Citizen test in Salt Institute v. Leavitt, 440 F.3d 156 (4th Cir. 2006). In Salt Institute, the plaintiff was seeking information under the Information Quality Act (“IQA”), a statute that lacks a public disclosure requirement. Finding that Akins and Public Citizen controlled, the Fourth Circuit focused on the IQA, and analyzed whether that statute created the type of right to information that is established by FACA or FECA. Id. The Fourth Circuit then distinguished Akins and Public Citizen on the grounds that the statutes in question there “clearly created a right to information,” whereas the statute in Salt Institute did not. Id. at 159 and n.2. Concluding that the IQA was not intended to create a legal right to information, the Fourth Circuit affirmed the district court’s dismissal of the suit for lack of standing. Id. at 159-160.
Like FACA and FECA, the NVRA’s Public Disclosure Provision patently creates a right to information by requiring that certain records be made accessible to the public: “Each state shall maintain for at least 2 years and shall make available for public inspection and, where available, photocopying at a reasonable cost, all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters. . . .” 42 U.S.C. § 1973gg-6(i)(1) (emphasis added). Compare FACA, 5 U.S.C. app. 2 § 10(b) (“[T]he records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by each advisory committee shall be available for public inspection.”); FECA, 2 U.S.C. § 434(a)(11)(B) (“The Commission shall make a designation, statement, report, or

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notification that is filed with the Commission under this Act available for inspection by the public.”).
Defendants maintain that Project Vote’s injury is analogous to the injuries in reported cases that were found to be insufficient to confer standing because of (1) a “mere interest in a problem,” Sierra Club v. Morton, 405 U.S. 727, 739 (1972) (quotations omitted); (2) an injury to an organization’s ideals or a “setback to its abstract social interests,” Harkless v. Blackwell, 467 F. Supp. 2d 754, 761 (N.D. Ohio 2006), rev’d on other grounds, Harkless v. Brunner, 545 F.3d 445 (6th Cir. 2008); or (3) a lack of any concrete involvement in registering voters who claimed NVRA violations, U.S. Student Ass’n Found. v. Land, 585 F. Supp. 2d 925, 934 (E.D. Mich. 2008). (Def. Mot. at 7-8.) But Project Vote has alleged a concrete injury distinct from these categories because it has asserted that it requested information to which it was entitled under the Public Disclosure Provision and that Defendants denied access to that information. The denial of Project Vote’s request alone is enough of an injury to confer standing.
The Supreme Court stated in EPA v. Mink, 410 U.S. 73, 86 (1973), that FOIA does not “permit inquiry into particularized needs of the individual seeking the information,” because of the public character of the informational right. The NVRA likewise grants an explicit public right to information. It is enough for Project Vote to allege that it has suffered an injury from being denied access to information to which it is entitled as a matter of right, without having to further allege any particularized interest in the documents or to assert the denial of a substantive right to register to vote under the NVRA. Indeed, Project Vote has neither asserted the denial of a substantive registration right nor any other injury, other than an informational injury caused by Defendants’ denial of Project Vote’s rights to obtain records.

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Because the Public Disclosure Provision is a statute that clearly creates a right to information and because Defendants have denied Project Vote this right, Project Vote has sustained a concrete informational injury that confers Article III standing. Accepting Project Vote’s well-pled facts as true and construing these facts in the light most favorable to Project Vote in weighing the legal sufficiency of the complaint, the court should deny Defendants’ motion to dismiss for lack of standing. II. Project Vote Has Stated a Claim Upon Which Relief can be Granted Because
Defendants Have Withheld Information in Violation of the NVRA. Project Vote alleges that Defendants have denied its requests for access to inspect or copy completed voter registration applications in Norfolk, Virginia. These denials are in direct violation of the Public Disclosure Provision of the NVRA, 42 U.S.C. § 1973gg-6(i)(1), and thus the NVRA’s civil enforcement provision provides for a cause of action and relief for the injuries sustained. 42 U.S.C. § 1973gg-9(b)(1). Moreover, because the NVRA is a validly enacted federal law, Defendants’ actions violate the Supremacy Clause of the U.S. Constitution. Project Vote has thus stated a claim upon which relief can be granted and Defendants’ motion to dismiss must be denied. A. Defendants’ Refusal to Grant Access to the Requested Records Violates the
NVRA Because Its Public Disclosure Provision Requires that Completed Voter Registration Applications be Made Available for Inspection and Copying. The Public Disclosure Provision’s plain language is unambiguous and requires that completed voter registration applications be made publicly available because such applications are records concerning the implementation of a program or activity conducted for the purpose of ensuring that official lists of eligible voters are accurate and current—specifically, the process by which Virginia evaluates potentially eligible individuals for inclusion on the official lists of eligible voters. The Defendants’ proposed limitations on the Provision’s plain language ignore

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the significance of specifically-enumerated exceptions to its disclosure requirements, and would render this exceptions clause nonsensical as drafted by Congress. Other principles of statutory construction reinforce that the Provision’s plain language mandates public access to completed voter registration applications. Defendants’ arguments to the contrary ignore the plain language of the Public Disclosure Provision and misconstrue other provisions of the NVRA.
1. The Court’s Analysis Should Focus on the Plain Language of the Public Disclosure Provision.
When interpreting a statute, a court should enforce the statute according to its plain language so long as “the disposition required by the text is not absurd.” Stephens ex rel. R.E. v. Astrue, 565 F.3d 131, 137 (4th Cir. 2009) (quoting Lamie v. United States Trustee, 540 U.S. 526 (2004)) (emphasis added); see also United States v. Abdelshafi, 592 F.3d 602, 607 (4th Cir. 2010) (courts “first and foremost strive to implement congressional intent by examining the plain language of the statute”). Thus, the first step in statutory interpretation is “to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” Willenbring v. United States, 559 F.3d 225, 235 (4th Cir. 2009) (quotations omitted). In fact, when the plain meaning of a statute is unambiguous, “this first canon is also the last [and] judicial inquiry is complete.” Id.
In construing the Public Disclosure Provision’s plain language, its terms should be afforded their “ordinary, contemporary, common meaning” unless Congress intended those terms to have a different meaning. Stephens, 565 F.3d at 137 (quoting North Carolina ex rel. Cooper v. Tenn. Valley Auth. 515 F.3d 344, 351 (4th Cir. 2008)). Moreover, the proper breadth of such statutory terms is revealed by Congress’s inclusion of modifiers in the text that imply that its terms should be construed expansively—such as the word “all.” Nat’l Coal. for Students with Disabilities Educ. & Legal Def. Fund v. Allen, 152 F.3d 283, 290 (4th Cir. 1998).

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Where Congress specifically exempts certain categories from otherwise applicable language, courts may not infer additional exceptions. Rosmer v. Pfizer, Inc., 272 F.3d 243, 247 (4th Cir. 2001) (stating that inferring additional exceptions into a list of statutory exceptions drafted by Congress runs afoul of the doctrine of expressio unius est exlusio alterius and would amount to the court performing a “legislative trick”); United States v. Rocha, 916 F.2d 219, 243 (5th Cir. 1990). Thus, when construing the breadth of the operative clause of a statute, courts may not limit its interpretation such that any of the exceptions thereto become meaningless or superfluous. Discover Bank v. Vaden, 396 F.3d 366, 370 (4th Cir. 2005) (“It is a classic canon of statutory construction that courts must give effect to every provision and word in a statute and avoid any interpretation that may render statutory terms meaningless or superfluous.”).
2. The Plain Language of the Public Disclosure Provision Requires Disclosure of Completed Voter Registration Applications.
The plain and common meaning of the Public Disclosure Provision’s terms leaves no doubt that completed voter registration applications are records that must be made available for public inspection and copying. The Public Disclosure Provision provides that:
Each State shall maintain for at least 2 years and shall make available for public inspection and, where available, photocopying at a reasonable cost, all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters, except to the extent that such records relate to a declination to register to vote or to the identity of a voter registration agency through which any particular voter is registered. 42 U.S.C. § 1973gg-6(i)(1) (emphasis added). The Provision provides only two exceptions to its requirement that “all records” be disclosed: 1) records that relate to an individual’s declination to register to vote; or 2) records that identify a voter registration agency through which a particular voter was registered. Id. This exceptions clause, though a critical part of the Public Disclosure

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Provision, is ignored by the Defendants, and that initial error taints their interpretation of their obligations under the statute.2
Since Congress provided for these two specific exceptions to the provision’s otherwise broad requirements, courts may not perform the “legislative trick” of inferring additional exceptions beyond those enumerated in this clause—instead, all other types of records concerning the implementation of pertinent programs or activities must be made available for public inspection and copying. Rosmer, 272 F.3d at 247; Rocha, 916 F.2d at 243 (“Under the principle of statutory construction expressio unius est exclusio alterius, the enumeration of specific exclusions from the operation of a statute is an indication that the statute should apply to all cases not specifically excluded.”). In other words, the Court should not exclude completed voter registration applications from the term “all records” because the exceptions clause demonstrates Congressional intent to include those applications within the meaning of that term.
The exceptions clause also refutes Defendants’ proposed interpretation that the Provision’s disclosure requirements reach only those records “that prove the [S]tates are properly maintaining lists of registered voters.” (Def. Mot. at 13.) That interpretation would render Congress’s drafting of the exceptions clause nonsensical, because neither of the categories of records excluded from the public disclosure requirement are records that prove that Virginia is properly maintaining its list of registered voters. Thus, under the Defendants’ interpretation, the exceptions clause would be meaningless, but no interpretation can be accepted that renders Congressional language meaningless. Discover Bank, 396 F.3d at 370. Moreover, both enumerated exceptions concern categories of records concerning the implementation of voter
2 In fact, Defendants repeatedly quote the statute without noting the exception clause, replacing it instead with an ellipsis. (See, e.g., Def. Mot. at 1,6, 13, 18.)

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registration programs or activities and, as such, clearly show Congress’s intent to include completed voter registration applications within the Provision’s disclosure requirement.
Completed voter registration applications do not fall under the exceptions clause, and therefore must be included in the term “all records.” Id.; see Nat’l Coal., 152 F.3d at 290 (“[T]he use of the word ‘all’ [as a modifier] suggests an expansive meaning because ‘all’ is a term of great breadth.”). On their face, the applications neither relate to an individual’s declination to register to vote nor identify the voter registration agency through which an individual registered. (See Def. Mot. Ex. D.) Indeed, the exceptions clause refers to only a small category of records relating to specific voter registration agency public assistance programs mandated by the NVRA.3 42 U.S.C. § 1973gg-5. Thus, because 1) the process by which Virginia evaluates individuals for inclusion on the official lists of eligible voters is a “program or activity” conducted for the purpose of ensuring that such lists are accurate and current; and 2) completed voter registration applications are integral to that process, the Public Disclosure Provision requires that completed voter registration applications be made available for public inspection and copying. Id.
In what appears to be the only judicial treatment of this issue, a federal court has required the disclosure of completed voter registration applications under this Provision. See, e.g., Jenkins v. Ousse et al., Case No. 96-2613, Dkt. No. 3 (W.D. La November 12, 1996) (imposing temporary restraining order requiring defendant state election officials to make completed voter
3 The NVRA mandates that States must designate “voter registration agencies” which provide public assistance to individuals seeking to register to vote. 42 U.S.C. § 1973gg-5(a)(2). Individuals may decline the assistance offered by voter registration agencies, and that choice is considered a “declination to register” to vote for the purposes of the NVRA. 42 U.S.C. § 1973gg-5(a)(6)(B). In Virginia, a declination to register to vote is indicated by checking the appropriate box on the Commonwealth’s Voter Registration Agency Certification Form. Ex. B, Commonwealth of Virginia, Voter Registration Agency Form. The exceptions clause exempts only records indicating such a declination or identifying the particular voter registration agency public assistance program through which someone registered. 42 U.S.C. § 1973gg-6(i)(1).

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registration applications available for inspection and copying by Plaintiff who brought suit under the Public Disclosure Provision). It is clear from the district court’s docket and a related Fifth Circuit opinion that access to the completed voter registration applications was sought and granted under the Public Disclosure Provision. Jenkins v. Ousse, 145 F.3d 359, 1998 WL 307588, * 2 (5th Cir. May 12, 1998) (District Court Docket Sheet with Minute Order attached hereto as Ex. C).
Since the exceptions clause clearly demonstrates Congressional intent to include all records related to voter registration activities not specifically excepted, the completed voter registration applications sought by Project Vote are covered by the plain language of the Public Disclosure Provision and must be disclosed.
3. Evaluating Voter Registration Applications is an Activity Conducted to Ensure the Accuracy and Currency of Official Lists of Eligible Voters.
The process of evaluating voter registration applications to determine whether persons should be included on the official list of eligible voters is the most central “program or activity” conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters. In Virginia, to be an eligible voter, an individual must be considered a “qualified voter.” See Va. Code §§ 24.2-101; 24.2-400. In order to be a considered a “qualified voter,” an individual must both meet statutory qualifications and register to vote. Registering to vote requires an individual to submit a completed voter registration application to election officials, who evaluate the information contained in the application and may either grant or deny that individual’s inclusion on the official list of eligible voters. See Va. Code §§ 24.2-101; 24.2-417; 24.2-418; 24.2-422.
This evaluative process ensures that only those individuals meeting the statutory requirements are added to the official eligible voter list and that individuals who do not satisfy

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those requirements are excluded. See, e.g., Va. Code § 24.2-101. The process also ensures that the official lists are current by providing all prospective voters the opportunity to be added to the list on an ongoing basis—for example, when they reach the minimum voting age of 18 or have their voting rights restored. Id. Most importantly, inspection of completed voter applications is key to determining whether otherwise eligible voters, who meet the statutory requirements and properly completed an application, are being improperly excluded from the official list of voters. Ensuring that otherwise eligible voters are not being improperly excluded is crucial to ensuring the accuracy and currency of the official lists.
Completed voter registration applications are “records concerning the implementation” of this “program or activity.” The term “implementation” means “the acting of implementing;” and “implement” means “to carry out.” Webster’s Third New International Dictionary 1134-35; see United States v. Groce, 398 F.3d 679, 681 (4th Cir. 2005) (citing Webster’s as an authoritative source on a statutory term’s common meaning). The instructions on Virginia’s Voter Registration Application Form remind the applicant how important the application is to implementing this process: “You are not officially registered to vote until this application is approved.” (Def. Mot. Ex. D at 1.) Indeed, the accuracy of a completed voter application is important enough that “making a materially false statement on [the application] constitutes the crime of election fraud, which is punishable under Virginia law as a felony.” Id.
Completed voter registration applications are the means by which individuals provide the Commonwealth the information necessary for officials to carry out their evaluative process. The registration application asks applicants to provide information verifying that they are both citizens of the United States and the Commonwealth of Virginia. Id. at 3. It requires individuals to report whether they will be 18 years old by the next general election, and the application will

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be denied if this condition is not met. Id. Finally, the application also requires that convicted felons report whether and when their voting rights were restored—another condition for inclusion of the official list of eligible voters. Id. All of this information is necessary to evaluate whether to include an individual on the official list of eligible voters. Since completed voter registration applications are records concerning the implementation of this program or activity and fall under neither exception to the NVRA’s disclosure requirements, they must be made publicly available. See 42 U.S.C. § 1973gg-6(i)(1).
4. Other Principles of Statutory Construction Also Support the Conclusion that Voter Registration Applications Must Be Produced.
Other principles of statutory construction confirm that completed voter registration applications are included in the Public Disclosure Provision’s requirement that “all records” be made publicly available. Specifically, both the applicable statutory titles and the NVRA’s purpose indicate that Defendants’ narrow interpretation of their obligations is incorrect. See I.N.S. v. Nat’l Center for Immigrants’ Rights, Inc., 502 U.S. 183, 190 (1991) (a statute’s or a section’s titles can aid in interpreting the text); South Carolina Educ. Ass’n v. Campbell, 883 F.2d 1251, 1262 (4th Cir. 1989) (legislative purpose included in the statute itself can aid a court’s interpretation) (citations omitted).
The NVRA’s titles, section titles, and subsection titles indicate that the meaning of “all records” includes completed voter registration applications rather than merely records related to removal of voters from the rolls, as Defendants argue. First and foremost, the NVRA is a voter registration statute, not a voter removal statute. Indeed, it is the “National Voter Registration Act” and is codified under a subchapter entitled “National Voter Registration.” 42 U.S.C. § 1973gg et seq. (emphasis added). The section in which the Public Disclosure Provision is found, Section 1973gg-6, is titled “Requirements with respect to administration of voter registration.”

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42 U.S.C. § 1973gg-6 (emphasis added). Even the Public Disclosure provision’s subsection title reads “Public disclosure of voter registration activities.” 42 U.S.C. § 1973gg-6(i) (emphasis added).
Despite the decision of Congress to include the term “registration” multiple times in the titles and subtitles under which it placed the Public Disclosure Provision, Defendants argue that registration applications need not be produced because the Public Disclosure Provision comes up in the “context” of removing voters from the voting rolls. (Def. Mot. at 11.) This is simply not true. In fact, the NVRA sections cited by Defendants are designed to limit the manner in which States may remove individuals from the official lists of eligible voters, not to facilitate such removal. See, e.g., 42 U.S.C. § 1973gg-6(a) (prohibiting a State from removing a voter from the voting rolls unless certain conditions are met). This is in keeping with the NVRA’s purpose, which is to increase voter registration and voter participation. See, e.g., 42 U.S.C. § 1973gg(b) (stating that the purpose of the NVRA is “to establish procedures that will increase the number of eligible citizens” able to vote in federal elections). Public inspection and copying of completed voter registration applications, as provided for by the Public Disclosure Provision, facilitates that goal by ensuring that otherwise eligible voters are not being improperly denied admission to official lists.
The legislative purpose and Congressional findings included in the NVRA also support the conclusion that completed voter registration applications must be disclosed publicly. Congress’s stated purposes in enacting the NVRA demonstrate that it should be interpreted with the aim of ensuring that potentially eligible voters are not improperly excluded from the voting rolls. See 42 U.S.C. § 1973gg(b) (stating a purpose is to ensure that States “enhance the participation of eligible citizens as voters in elections for Federal office”). See, e.g., South

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Carolina Educ. Ass’n v. Campbell, 883 F.2d 1251, 1262 (4th Cir. 1989) (legislative purpose is of proper interpretive use to courts) (citations omitted). The Congressional findings also embrace voter registration—in enacting the NVRA, Congress found that “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.” 42 U.S.C. § 1973gg(a)(3). The Public Disclosure Provision is meant to shine a public light on any practice that causes such harm in order to prevent voter disenfranchisement. Excluding completed voter applications from the reach of the Public Disclosure Provision runs directly counter to that purpose. Without public disclosure of such applications, ascertaining whether individuals are being wrongly denied admittance to the official lists of eligible voters is not possible. Such a result runs counter to the NVRA’s purpose and goals, and counter to the Public Disclosure Provision’s plain language. Accordingly, completed voter registration applications must be made available for public disclosure and copying.
5. The Defendants’ Narrow Interpretation of Their Obligations Runs Afoul of the Plain Language of the Public Disclosure Provision and Violates the NVRA.
The Defendants attempt to avoid the impact of the Public Disclosure Provision’s plain language and instead look to other NVRA subsections in an attempt to constrain its meaning. (Def. Mot. at 11-13.) This tactic must fail because, when the language in a statute with regard to the particular dispute in a case is unambiguous, judicial inquiry regarding the language’s meaning is complete. Willenbring, 559 F.3d at 235.

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Defendants attempt to rely on 42 U.S.C. § 1973gg-§ 6(i)(2), claiming that this subsection describes the extent of records that must be disclosed under the Public Disclosure Provision.4 (Def. Mot. at 14 (citing Section 1973gg-6(i)(2)).) But Section 6(i)(2) merely imposes minimum record maintenance requirements on the States—requiring them to maintain specific types of records concerning the limited ways in which they may remove a registered voter from the voting rolls. Id. As discussed above, Defendants’ interpretation must fail because accepting that Section 6(i)(2) describes all records to be disclosed under the Public Disclosure Provision would render the Provision’s exceptions clause nonsensical. Discover Bank, 396 F.3d at 370. Under Defendants’ interpretation, Congress intended to exclude from the Public Disclosure Provision many records—such as records relating to voters’ declination of registration—that were never covered by the Provision in the first place.
Moreover, the Public Disclosure Provision is clear in that all records that are maintained by a state must also be disclosed. 42 U.S.C. § 1973gg-6(i)(1). The maintenance requirements and disclosure requirements are separate. Id.; see 42 U.S.C. § 1973gg-6(i)(2) (stating that “records maintained pursuant to [the Public Disclosure Provision] shall include” at least certain enumerated type of records). This language in no way affects the Public Disclosure Requirement’s command that all records that are maintained concerning pertinent programs or activities must be made publicly available. Id.
4Section 6(i)(2) provides that: “records maintained pursuant to [the Public Disclosure Provision] shall include lists of the names and addresses of all persons to whom notices described in [other NVRA sections] are sent, and information concerning whether or not each such person has responded to the notice as of the date that inspection of the records is made.
42 U.S.C. § 1973gg-6(i)(2) (emphasis added). Section § 6(i)(2) thus speaks to a State’s record maintenance requirement only—not its disclosure requirements under the Public Disclosure Provision.

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Finally, the use of the term “include” in Section 6(i)(2) makes clear that the records described in that Section are but illustrative examples, not an exclusive list. Fed. Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 100 (1941) (“The term ‘including’ is not one of all-embracing definition, but connotes simply an illustrative application of the general principle.”) (citations omitted); United States v. Wyatt, 408 F.3d 1257, 1261 (9th Cir. 2005) (same); Gordon v. Liberty Mut. Ins. Co., 675 F. Supp. 321, 324 (E.D. Va. 1987) (construing the term “include” disjunctively as used in Virginia’s automobile insurance statute). Thus, Section 6(i)(2) does not limit the disclosure requirements of the Public Disclosure Provision.
Defendants also raise privacy concerns regarding the disclosure of individual Social Security Numbers (“SSNs”), in an attempt to avoid the Provision’s disclosure requirements, but these arguments are meritless. (See, e.g., Def. Mot. at 15, 19.) Most importantly, Project Vote has repeatedly requested that only properly redacted copies of the requested records be made available so as to avoid disclosure of any SSNs. See Ex. A. The remaining information contained on any disclosed applications would be similar to the information already publicly disclosed by the Defendants in their own Exhibit C. (See Def Mot. Ex. C.) Moreover, cases cited by Defendant in support of their argument are inapposite. The Greidinger decision merely held that States may not require individuals to consent to the public disclosure of their SSNs as a condition of voter registration. Greidinger v. Davis, 988 F.2d 1344, 1355 (4th Cir. 1993). Neither the Fourth Circuit opinion nor the District Court’s subsequent consent decree addressed the Public Disclosure Provision’s disclosure requirements—only the disclosure of SSNs. Id.; District Court Consent Decree (attached hereto as Ex. D). Thus, any pertinent privacy concerns are assuaged by Project Vote’s request for applications with SSNs redacted. Even the Virginia Supreme Court agrees that redacted applications do not present such privacy concerns, as it has

Case 2:10-cv-00075-RBS -DEM Document 19 Filed 04/09/10 Page 26 of 28 PageID# 135
previously ruled that such redacted applications must be disclosed under Virginia law. Rivera v. Long, No. 070274, slip op. (Va. Sup. Ct., Feb 8, 2008) (attached hereto as Ex. E). 5
B. Project Vote Has Stated a Claim for Relief Under the NVRA Civil Enforcement Provision Based On Defendants’ Continued Violation of the NVRA.
Defendants’ continued refusal to grant Project Vote access to inspect and copy the requested voter registration applications violates the NVRA and supports a cause of action under the NVRA’s civil enforcement proceeding. 42 U.S.C. § 1973gg-9. To the extent that compliance with the NVRA is not permitted by Virginia law, such law is invalid under the Supremacy Clause of the U.S. Constitution because it conflicts with the NVRA. U.S. Const. art. VI, cl. 2 (“The Constitution and the Laws of the United States . . . shall be the supreme Law of the Land”); College Loan Corp. v. SLM Corporation, 396 F.3d 588, 595 (4th Cir. 2005) (“As a result [of the Supremacy Clause] federal statutes and regulations properly enacted can nullify conflicting state or local actions.”); see, e.g., Jenkins, at Dkt. No. 3 (granting Plaintiff access to completed voter registration applications under the NVRA despite State’s refusal); see also Young v. Fordice, 520 U.S. 273, 286 (1997) (recognizing that the NVRA imposes “mandates” on the States by which they must abide).
Moreover, the Virginia Attorney General has no authority to substitute his interpretation of the Public Disclosure Provision’s requirements for that which is required by the NVRA’s plain language. United States Student Ass’n Found. v. Land, 546 F.3d 373, 382-383 (6th Cir. 2008) (holding that States have no power to interpret provisions of the NVRA because a “federal statute cannot adequately protect the rights of individuals from actions of the [S]tate” if States
5 Defendants also rely upon a document issued by the Federal Election Commission (“FEC”) entitled Implementing the National Voter Registration Act of 1993: Requirements, Issues, Approaches and Examples in support of their privacy arguments. (See Def. Mot. at 14; Def. Ex. E.) But, this document carries no interpretive weight—even its preface states that it is intended only as a “general reference” and its “suggestions” are “purely heuristic and are offered without the force of law, regulation or advisory opinion.” (Def. Ex. E at P-1.) Accordingly, reliance on this document to interpret the NVRA is improper.

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have such interpretive power). The NVRA’s disclosure requirements are controlling. U.S. Const. art. VI, cl. 2; College Loan Corp., 396 F.3d at 595; see, e.g., Jenkins at Dkt. No. 3; see also Young, 520 U.S. at 286 (1997). As such, Project Vote has stated a claim upon which relief can be granted.
CONCLUSION For the foregoing reasons, Defendants’ motion to dismiss should be denied.
Respectfully submitted,

Project
OF COUNSEL:
Bradley E. Heard ADVANCEMENT PROJECT 1220 L Street, NW Suite 850 Washington, DC 20005 (admitted pro hac vice)
Yolanda Sheffield PROJECT VOTE 737 ½ 8th Street SE Washington, D.C. 20003 (admitted pro hac vice)

_________/s/__________________ Ryan M. Malone (VA Bar # 48526) Jason G. Idilbi (VA Bar #76869) Augustine M. Ripa (VA Bar #77244) David O. Stewart (admitted pro hac vice) Douglas H. Hallward-Driemeier (pro hac vice application pending) ROPES & GRAY LLP 700 12th Street NW, Suite 900 East Washington D.C. 2005 TEL: 202-508-4669 FAX: 202-383-8322 Ryan.Malone@ropesgray.com
Counsel for Plaintiff Vote/Voting for America, Inc.

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CERTIFICATE OF SERVICE I hereby certify that on the 9th day of April, 2010, I electronically filed the foregoing pleading with the Clerk of Court using the CM/ECF system, which will send a notification of such filing to all counsel of record.
_/s/___________________________ Ryan M. Malone

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June 22, 2009
VIA ELECTRONIC MAIL TO: nancy.rodrigues@sbe.virginia.gov
Ms. Nancy Rodrigues Secretary, State Board of Elections 200 North 9th Street, Room 101 Richmond, VA 23219
Re: Notice of Violation of National Voter Registration Act
Dear Ms. Rodrigues:
Pursuant to Section 11(b) of the National Voter Registration Act of 1993 (“NVRA”), 42 U.S.C. § 1973gg-9(b), and on behalf of Advancement Project, Project Vote, and all others who may be similarly aggrieved, we write to notify you that the Commonwealth of Virginia and its local election authorities are operating in violation of the public records disclosure provisions of Section 8(i) of the NVRA, 42 U.S.C. § 1973gg-6(i), by failing to permit public inspection and copying, upon request, of completed voter registration applications and other records related to voter registration activities. As civil and voting rights organizations that focus on increasing civic participation in low-income and minority communities and eliminating barriers to voter registration and voting, we rely heavily upon the ability to inspect and copy voter registration records to accomplish our missions and to provide effective assistance to our community partners. The Commonwealth’s laws prohibiting public inspection and copying of completed voter registration applications and other voter registration records are antithetical to the NVRA and, therefore, are unenforceable.
To correct this violation, we request that your office immediately issue a written directive to all general registrars and all state election officials, advising them that they are required by federal law to permit inspection and copying, upon request, of “all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters” — specifically including but not limited to copies of completed voter registration applications (redacted to exclude only the applicant’s Social Security number and agency of registration, if applicable) — notwithstanding Va. Code §§ 24.2-444 and 2.2-3703(B) or any other law, rule, or regulation of the Commonwealth to the contrary. The directive should further advise all election officials that any requested voter registration records should be made available for inspection or copying within the same time frames that other public records are required to be made available for inspection and copying pursuant to the Virginia Freedom of Information Act (i.e., generally five working days). See Va. Code Ann. § 2.2-2704. Should the Commonwealth not correct these violations within 90 days after your receipt of this notice, we may seek to vindicate our rights as permitted by Section 11(b) of the NVRA.
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Background
On May 11, 2009, Advancement Project sent an email to the General Registrar of Norfolk, Elisa Long, specifically requesting that she “make available for inspection and copying the completed voter registration applications of any individual who timely submitted an application at any time from January 1, 2008, through October 31, 2008, who was not registered to vote in time for the November 4, 2008 general election, in addition to several other documents (e.g., documents identifying the reasons the applications were rejected).” We advised Ms. Long that these records were required to be made available for public inspection and copying pursuant to Section 8(i) of the NVRA, notwithstanding any other law of the Commonwealth to the contrary.
On May 13, 2009, Registrar Long informed Advancement Project that she would not permit it to review or copy the forms, stating that “Virginia law does not permit voter registration applications to be inspected or copied,” and citing Va. Code Ann. § 24.2-444 in support of her position. Later that day, Martha Brissette, an attorney and policy analyst with the Virginia State Board of Elections, sent an email stating that Registrar Long correctly declined to permit inspection and copying of the voter registration applications that we had requested.
On May 15, 2009, representatives from Advancement Project and Project Vote visited the General Registrar’s office in Norfolk, where they again requested and were denied the opportunity to inspect or copy the requested voter registration applications. We made this request, in part, in an effort to assist one of our community partners, Democracy South, with several registration issues that they had encountered in Norfolk during the 2008 election season.
Analysis
The Commonwealth’s refusal to permit inspection or copying of all records relating to voter registration, specifically including copies of completed voter registration applications (redacted to exclude only the applicant’s Social Security number and agency of registration, if applicable), violates Section 8(i) of the NVRA, which states:
(i) Public disclosure of voter registration activities
(1) Each State shall maintain for at least 2 years and shall make available for public inspection and, where available, photocopying at a reasonable cost, all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters, except to the extent that such records relate to a declination to register to vote or to the identity of a voter registration agency through which any particular voter is registered.
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(2) The records maintained pursuant to paragraph (1) shall include lists of the names and addresses of all persons to whom notices described in subsection (d)(2) of this section are sent, and information concerning whether or not each such person has responded to the notice as of the date that inspection of the records is made.
42 U.S.C. § 1973gg-6(i) (emphasis added).
Applying the traditional canons of statutory construction, it is clear that Congress intended for state and local election officials to allow the public to inspect and copy “all records” relating to voter registration activities, including copies of completed voter registration applications, as a means of protecting the integrity of the registration process and ensuring that election officials are complying with their duty to register all eligible voters in a timely manner.
In interpreting a statute, “a court should always turn first to one, cardinal canon [of construction] before all others”: the plain meaning rule. Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253 (1992). We must presume that “Congress says in a statute what it means and means in a statute what it says. . . .” Hartford Underwriters Ins. Co. v. Union Planters Bank, N. A., 530 U.S. 1, 6 (2000) (internal quotation marks omitted). When the words of a statute are unambiguous, then, “this first canon is also the last: ‘judicial inquiry is complete.’” Conn. Nat’l Bank, 503 U.S. at 254 (quoting Rubin v. United States, 449 U.S. 424, 430 (1981)). Of course, in looking to the plain meaning, [courts] must consider the context in which the statutory words are used because “[courts] do not . . . construe statutory phrases in isolation; [they] read statutes as a whole.” United States v. Morton, 467 U.S. 822, 828 (1984).
Ayes v. United States Veterans Admin., 473 F.3d 104, 108 (4th Cir. 2006). See also Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997); United States v. Ron Pair Enters., Inc., 489 U.S. 235, 240-41 (1989); United States v. Murphy, 35 F.3d 143, 145 (4th Cir. 1994). United States v. Sheek, 990 F.2d 150, 152-153 (4th Cir. 1993).
The plain language of Section 8(i) is clear and unambiguous, requiring state and local election officials to maintain and produce for public inspection and copying “all records” concerning voter registration activities. The process of registering voters (including receiving, evaluating, and processing completed voter registration applications) is an essential component of “ensuring the accuracy and currency of” the voter registration rolls and plainly constitutes a “program” or “activity” of state and local election officials within the meaning of Section 8(i)(1). Completed voter registration applications are, therefore, “records” that relate to the “program” or “activity” of registering voters and ensuring the accuracy and currency of the rolls. Had Congress intended to exempt completed voter registration applications from the broad definition of “records,” they could and would have done so. Thus, under any reasonable plain-
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language reading of Section 8(i), election officials are required to permit the public to inspect and copy completed applications upon request.
This reading of Section 8(i) is further supported when considered in context with the rest of the NVRA. Two of the four general purposes of the NVRA are “to protect the integrity of the electoral process” and “to ensure that accurate and current voter registration rolls are maintained.” 42 U.S.C. § 1973gg(b)(3) and (4). Allowing the public to inspect and copy “all records” concerning voter registration activities, including completed voter registration applications, as Section 8(i) does, is fully consistent with these two overall goals. It helps to ensure that election officials are complying with their obligations under the NVRA to register all eligible voters in a timely manner; it assists in the identification of potential problems in the administration of the NVRA; and it helps to instill public confidence in the voter registration process.
Advancement Project’s and Project Vote’s request to inspect copies of completed voter registration applications from individuals who were not registered to vote by the Norfolk General Registrar in advance of the 2008 general presidential election is exactly the type of public records request that is contemplated by Section 8(i) of the NVRA. By inspecting these types of records, nonprofit organizations such as ours can better determine whether election officials are properly carrying out their legal duty to register eligible voters in a timely manner, or whether they are intentionally or unintentionally erecting unlawful barriers to voting and voter registration. Without access to these records, the answers to these questions are simply impossible to know.
To the extent that any Virginia law, rule, or regulation conflicts with Section 8(i) of the NVRA, as is the case here, such laws are preempted. A conflict between state and federal law arises whenever a state statute or regulation creates an irreconcilable conflict with a federal law or regulation, or where a state law or regulation “stands as an obstacle to the accomplishment and execution of the full purposes and objectives” of a federal statute or regulation. Barnett Bank of Marion County, N.A. v. Nelson, 517 U.S. 25, 31 (1996). See also Rum Creek Coal Sales, Inc. v. Caperton, 971 F.2d 1148, 1153 (4th Cir. 1992) (state labor-management relations law was in conflict with and impeded the purposes of the National Labor Relations Act and was therefore preempted.) When this occurs, the state law is rendered “constitutionally invalid as a violation of federal regulations enforceable through the Supremacy Clause” of the U.S. Constitution. Rum Creek Coal Sales, Inc., 971 F.2d at 1154.
Section 24.2-444 of the Virginia Code attempts to define two subclasses of voter registration records: “registration records,” as described in subsection (A) and “all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of the registration records” as described in subsection (B). The “registration records” described in subsection (A) actually refer to secondary records such as “lists of registered voters” and “lists of persons registering” that are prepared by the State Board of Elections and distributed periodically to the general registrars. These secondary records may be inspected, but not copied. Va. Code Ann. § 24.2-444(A). The records described in subsection (B) appear to refer to list
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maintenance records (i.e., the process of cancelling, updating, inactivating, verifying, correcting, or otherwise changing the status of already-registered voters). These list maintenance records may be inspected and copied. Va. Code Ann. § 24.2-444(B). All other voter registration records are specifically prohibited by Virginia law from being available for public inspection or copying: “No voter registration records other than the lists provided by the State Board under subsection A and the records made available under subsection B shall be open to public inspection.” Va. Code Ann. § 24.2-444(C). Thus, according to Virginia law, primary records relating to the addition of new voters to the rolls, such as completed voter registration applications, may be neither inspected nor copied.
Virginia’s statutory classification of voter registration records and the accompanying restriction of public inspection and/or copying rights to those classifications, is clearly at odds with federal law and frustrates the very purpose of Section 8(i) of the NVRA, which is to facilitate the “public disclosure of voter registration activities” (as the title of the subsection plainly states). The plain language of Section 8(i) does not provide for the distinctions and classifications set forth in Va. Code Ann. § 24.2-444. There is only one classification of records in Section 8(i) — “all records” — which undoubtedly includes not only secondary voter lists prepared by state or local election officials and list maintenance records, but also primary records, such as completed voter registration applications, rejection notices, and other documents and tangible things relating to the voter registration process. Section 8(i) allows the public the right to inspect and copy all of those records. Virginia’s restriction of public inspection and/or copying rights to certain types of voter registration records frustrates an essential purpose and effect of Section 8(i) by allowing essential components of the voter registration process (and any accompanying omissions committed by voter registration officials) to remain cloaked in secrecy. This contributes to the destruction of the public’s confidence in the process and actually facilitates greater non-compliance by election officials of their obligations under the NVRA. Because Va. Code Ann. § 24.2-444 conflicts with the plain language of Section 8(i) and frustrates at least two of the core purposes of the NVRA, it is preempted by federal law and, thus, invalid and unenforceable.
Registrar Long and Ms. Brissette assert that the Virginia statute and case law precluded the registrar’s office from making the voter registration documents available. In particular, Ms. Brissette stated that the Virginia Supreme Court’s unpublished decision in Rivera v. Long, No. 070274 (Va. Feb. 8, 2008), recognized a distinction between “registration records” (or what Ms. Brissette calls “voter registration application records”) and “records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of the registration records,” and holds that election officials are not required to permit inspection or copying of “registration records,” other than certain lists of registrants prepared by the SBE. Ms. Brissette also stated that a consent decree entered in the case of Greidinger v. Davis, No. 3:91-CV-476 (E.D. Va. Aug. 30, 1993), following the Fourth Circuit’s decision in the case, see 988 F.2d 1344 (4th Cir. 1993), was responsible for the Commonwealth’s
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policy (later codified into law) that voter registration applications “would not be open to inspection by the public.”
Neither the Virginia Supreme Court’s unpublished decision in Rivera v. Long, nor the federal consent decree in Greidinger v. Davis supports the Commonwealth’s refusal to permit inspection and copying of records relating to voter registration, in violation of Section 8(i) of the NVRA. Rivera dealt solely with the question of whether inspection and/or copying of certain voter registration records was required or permitted under the Virginia Freedom of Information Act, Va. Code Ann. § 2.2-3703. Rivera v. Long, No. 070274 (Feb. 8, 2008). Rivera did not address, and has no bearing on, whether that provision of the Virginia FOIA law complies with the NVRA and/or whether the inspection or copying of public records would have been permitted by Section 8(i) of the NVRA.
Similarly, the Greidinger consent decree neither authorizes nor stands as an impediment to complying with Section 8(i) of the NVRA. Greidinger v. Davis addressed the question of whether the unauthorized disclosure of a voter registration applicant’s Social Security number in connection with a public records request to review voter registration applications or lists (which was then allowed by Virginia law) posed an unconstitutional burden on the right to vote. See 988 F.2d 1344 (4th Cir. 1993). The Fourth Circuit held that it did and ordered the Commonwealth either to abandon its practice of requiring the full SSN from voter registration applicants or to ensure that the applicant’s SSN would not be subject to public disclosure. Id. at 1355. On remand, the Commonwealth entered into a consent decree wherein it agreed to revise the Privacy Act notice on its voter registration applications to state (in pertinent part): “this registration card will not be open to inspection by the public.” Greidinger, No. 3:91-CV-476 (E.D. Va. Aug. 30, 1993) (Consent Order at ¶ 6 & Ex. A). However, the consent decree also specifically contemplated that there may be a need to alter the Privacy Act notice, providing simply that any such changes should comply with the Privacy Act and the Fourth Circuit’s decision in Greidinger. See Consent Order at ¶ 6.
Advancement Project and Project Vote were aware of Greidinger when they made their request to review rejected applications in Norfolk. That is why we specifically stated that the applicants’ SSNs could be redacted from the copies of voter registration applications made available for our inspection and copying. In addition, the Greidinger consent decree allows the Commonwealth to change the Privacy Act notice on future voter registration forms to state: “The social security number that you supply on this registration card will not be made available for public inspection and copying” (or something to that effect). This should resolve any Greidinger issues related to the disclosure of these applications. In addition, to ensure full compliance with Section 8(i) of the NVRA, to the extent any voter registration application identifies a voter registration agency through which a voter registered to vote (as contemplated in Section 7 of the NVRA), the name of the voter registration agency can be redacted from the application. These two redactions will permit the Commonwealth to comply with its obligations to make voter registration records available for public inspection and copying, as required by Section 8(i) of the NVRA, and also comply with Greidinger.
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Conclusion

Voting is an essential element of our democracy. Many people have fought and bled for the right to vote. The right of the public to inspect and copy voter registration records must be preserved, because public scrutiny of the process increases faith in the process, helps to ensure that election officials adhere to their duties, and increases the likelihood that no eligible voter is illegally denied the right to vote. Accordingly, we urge the Commonwealth immediately to correct its violations of Section 8(i) of the NVRA by issuing the directive outlined at the beginning of this letter, making the appropriate changes to the Privacy Act notices associated with voter registration applications, and permitting inspection and copying of records in accordance with federal law.

We would be happy to meet with you to discuss these issues in greater detail, in an effort to reach an acceptable resolution to this issue. Should you have any questions or need additional information, please do not hesitate to contact us. We appreciate your attention to the concerns raised in this letter and look forward to your reply at your earliest opportunity. To ensure that we have sufficient time to resolve these issues within the time frames contemplated by Section 11(b) of the NVRA, we request a reply within the next 30 days.

Sincerely yours,

/s/ Bradley E. Heard Bradley E. Heard* Senior Attorney ADVANCEMENT PROJECT 1220 L Street, NW, Suite 850 Washington, DC 20005 Phone: (202) 728-9557 Ext. 310 Fax: (202) 728-9558 Email: bheard@advancementproject.org

Yolanda Sheffield* Director, Election Administration Program Project Vote Phone: (202) 546-4173 Ext 302 Fax: (202) 543-3675 Email: ysheffield@projectvote.org

* Licensed in the District of Columbia; not licensed in Virginia

Cc: Ms. Elisa L. Long (General Registrar, City of Norfolk) Martha Brissette, Esq. (Policy Analyst, Virginia State Board of Elections)

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Commonwealth of Virginia Voter Registration Agency Certification

If you are not registered to vote where you live now, would you like to apply to register to vote here today?
(Please check only one)
□ I am already registered to vote at my current address, or I am not eligible to register to vote and do not
need an application to register to vote.
□ Yes, I would like to apply to register to vote. (please fill out the voter registration application form) □ No, I do not want to register to vote.
If you do not check any box, you will be considered to have decided not to register to vote at this time. Applying to register to vote or declining to register to vote will not affect the assistance or services that you will be provided by this agency.
If you decline to register to vote, this fact will remain confidential. If you do register to vote, the office where your application was submitted will be kept confidential, and it will be used only for voter registration
purposes.

If you would like help filling out the voter registration application form, we will help you. The decision whether to seek or accept help is yours. You may fill out the application form in private if you desire.

If you believe that someone has interfered with your right to register or to decline to register to vote, your right to privacy in deciding whether to register or in applying to register to vote, you may file a complaint with:

Secretary of the Virginia State Board of Elections

Washington

Building

1100

Bank Street

Richmond,

VA 23219-3497

(804)

864-8901

_____________________________
Applicant Name

_____________________________
Signature

______________
Date

for agency use only

Voter Registration form completed:

□ Yes

□ No

Voter Registration form given to applicant for later mailing (at applicant’s request): □

______________________

___________

Agency Staff Signature

Date

SBE 032-03-945 07/09

Case 2:10-cv-00075-RBS -DEM Document 19-4 Filed 04/09/10 Page 1 of 5 PageID# 153

Received in Opinion Section

AUG 31 !993

l E Ol UNITED STATES DISTRICT COURT '-'=-~~~-~--.
FOR THE EASTERN DISTRICT OF VIRGIN! It~.·· I

RICHMOND DIVISION

· r1_ . : . , _ . : : : _ _ : : _ ,

Marc Alan Gteidingef,

illJ'3 3 Ql993

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i

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Plaintiff-Appellant,

CW!K, U.S. OISTRICJ COURT RICHMOND, VA

v.

Civil Action No. 3:91CV00476

(Fourth Circuit No. CA-91-476-R)

Bobby W. Dayis., Chainnan;
John H. Rust, Jr., Vice-Chainnan; Michael G. Brown, Secretary
State Board of Elections

Defendants-Appellees.

CONSENT ORDER

Pursuant to the decision of the United States Court of Appeals for the Fourth Circuit,

rendered in this case on March 22, 1993, and the mandate therein, filed April 12, 1993, Plaintiff and Defendants have agreed that:
1. The Commonwealth of Virginia may continue to require persons applying to register to vote to furnish their social security numbers, if they have one, as long as required by the

Virginia Constitution or the Code of Virginia, but shall no longer permit public access to voter registration or election records containing those numbers.
2. Notwithstanding the provisions of Virginia statutes or regulations, including, but not limited to, The Virginia Freedom oflnformation Act, Va. Code Ann. §§ 2.1-340 through 2.1346.1, and Va. Code Ann. § 24.1-30 or§ 24.1-56, the Defendants shall direct all local voter registration and election officials to ensure that registration or election records containing voters' social security numbers are not made available for public inspection or copying, and shall further ensure that Defendants' own employees do not make such records available for public inspection

Case 2:10-cv-00075-RBS -DEM Document 19-4 Filed 04/09/10 Page 2 of 5 PageID# 154
or copying. As soon as possible, but not later than September 15, 1993, the Defendants shall begin making available to the general registrar for each Virginia county and city lists of all registered voters, by precinct, containing the name, address, date of birth, gender and all election districts applicable to each registered voter, but without social security numbers. New lists shall be provided at least once each year, and supplements containing additions, deletions and changes shall be provided not less than monthly. Notwithstanding any other provision of law regarding the retention of records, within a reasonable time after receiving any new complete list, the general registrar shall destroy the obsolete list and its supplements.
3. Notwithstanding the provisions ofVa. Code Ann. § 24.1-23(8)-(10), Defendants shall not include social security numbers on voter lists or computer tapes thereof furnished to candidates, political parties or officials, incumbent officeholders and nonprofit organizations promoting voter participation and registration, pursuant to that statute.
Social security numbers may be included only on computer tapes furnished to courts for juxy selection purposes. Plaintiff consents to the distribution of such computer listings to courts based on his current understanding that neither federal nor state courts in Virginia currently make any public disclosure of the social security numbers on such lists. Defendants contend that the decision of the United States Court of Appeals in this case does not impose any limit on the distribution of the lists, including social security numbers, to courts for use in jury selection. Nevertheless, in the event plaintiff subsequently learns that federal or state courts have changed tbeir current practice and are publicly disclosing social security numbers obtained from Defendants' lists, Plaintiff shall be entitled, after reasonable notice to Defendants or their successors in office, to file a motion in this Court for a determination of wbether this Order should be
2

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modified. Any such motion and modification shall be limited solely to the matter of Defendants' distribution to courts of the lists containing social security numbers.
All current subscribers maintaining systems listing voters and other persons, who within the last 24 months have received social security numbers from lists or tapes furnished by Defendants, shall delete or destroy thst portion of their records containing those numbers, and shall certify to Defendants that they have done so. Defendants shall send copies of this order to all such current subscribers and other persons who within the past twenty-four months have received lists containing social security numbers,
4. Notwithstanding the provisions of Va. Code Ann. § 24.1-229, Defendant shall prescribe procedures to permit public inspection and copying of absentee ballot applications and lists of such applicants maintained by each general registrar in a manner that does not permit public access to social security numbers.
5. Defendants shall direct all local voter registration and election officials that voters' social security numbers may be used only for purposes related to administration of the Commonwealth's voter registration system by voter registration officials or to the conduct of elections by election officials, and may not be disclosed to any other person.
6. Defendants shall revise the federal Privacy Act notice on Virginia voter registration application forms as shown on Exhibit A attached to this Order, and shall order and distribute replacement forms to all local registrars as soon as possible, but not later than October 1, 1993. Any future revisions to the notice shall comply with the Privacy Act and be consistent with the decision of the United States Court of Appeals in this case.
7. Defendants shall pay Plaintiff's agreed attorneys' fees, as follows: to Eric M. Page, P.C., 316 West Broad Street, Richmond, Virginia, $24,010.85; and to Public Citizen Litigation
3

Case 2:10-cv-00075-RBS -DEM Document 19-4 Filed 04/09/10 Page 4 of 5 PageID# 156
Group, Washington, D.C., $14,825.38, which sums include the taxable costs advanced in Plaintiff's behalf. Payment of the sums hereby ordered shall release and discharge Defendants from all liability to Plaintiff or his attorneys for any fees or costs incurred in this case to the date of entry of this order.
8. The State Board of Elections shall certify to the Court not later than October 15, 1993, that it has implemented or directed implementation of all of the foregoing measures:
And it is SO ORDERED.

Date:

AUG 30 1993

----------~----------

Agreed:

Eric M. Page 316 West Broad Street Richmond, Virginia 23220-4257 Telephone: 804 644 0711 Virginia State Bar No. 18193
Counsel for Marc (an Greidinger, Plaintiff
~!(~ Senior Assistant Attorney General 101 North Eighth Street Richmond, Virginia 23219 Telephone 804 786 6425 Virginia State Bar No. 01296 Counsel for State Board of Elections, Bobby W. Davis, John H. Rnst, Jr., and Michael G. Brown, Defendants
4

Case 2:10-cv-00075-RBS -DEM Document 19-4 Filed 04/09/10 Page 5 of 5 PageID# 157
Exhibit A
PRlVACY ACT NOTICE
Article II, § 2 of the Constitution of Virginia (1971) requires that a person registering to vote provide under oath his or her social security number, if any. Therefore, if you do not provide your social security number, your application for voter registration will be denied. Section 7 of the federal Privacy Act (Public Law No. 93-579) allows the Commonwealth to enforce this requirement, but also requires that people seeking to register be advised that state and local voting officials will use the social security number as a unique identifier to insure that no person is registered in more than one place.
This registration card will not be open to inspection by the public. Your social security number will appear on reports produced only for official use by voter registration and election officials and, for jury selection purposes, by courts.

Case 2:10-cv-00075-RBS -DEM Document 19-5 Filed 04/09/10 Page 1 of 4 PageID# 158
VIRGINIA:

Ike 8

t 2008.

inst

No. 070274 t Court No. L05-2754

isa Long, General Registrar,

Appellee.

Upon an appeal from a judgment rendered by the Circuit Court of the City of Norfolk.

Upon consideration of the record, briefs, and argument of

counsel, the Court is of opinion that the judgment of the trial

court should be affirmed in part, reversed in part, and the award

attorney's fees vacated and remanded for recalculation.

The General Registrar for the City of Norfolk rejected more

than 55% of voter registration applications prior to the 2005

!i

election. Andrew Rivera ("Rivera"), a citizen and registered voter

!\

:I

of the Commonwealth of Virginia and a member of the Advancement

Project, an organization that monitors voter

stration, filed a

under

of Informat

Act ( "FOIA")

voter

stration

letters sent

strar11 ) to

§ 4.2-444. ra

fil

t

Dist ct Court.

novo to

t Court

t

Case 2:10-cv-00075-RBS -DEM Document 19-5 Filed 04/09/10 Page 2 of 4 PageID# 159

k.

t

court

t

to

not

to voters

icat

were

on the 1

§ 24.2-444, but deni

access to

voter

stration

applicat

to

§ 24.2 444(A)

they

Soci

numbers.

t 1 court

Rivera's request

attorney's

, awarding $2,000 of the

$5,167.50

ed, and denied

's

randomly

selected denied applications to be produced and kept under seal for

an appellate record. Rivera appeals the adverse rulings of the

trial court.

Rivera's first assignment of error states that the trial court

erred by sustaining an objection to Rivera/s request for the

production/ under seal, of original documents and not making those

documents part of the record. When a trial court refuses to make

evidence that it considered part of the record, appellate review is

frustrated.

, 272 Va. 198, 201-

02, 630 S.E.2d 525 1 527. Here, however, the court did not review

the completed forms. Finding it

ficient to review the blank

forms, the trial court did not abuse its scretion in re ing to

make

a

the

Accordingly,

1 S first ass

error is

t.

error states that •[t]

court

to

es

444

B.

B

"

ementat

Case 2:10-cv-00075-RBS -DEM Document 19-5 Filed 04/09/10 Page 3 of 4 PageID# 160

act t

If

§ . 2 444

ef

at

II'IIII iq l
tl

to on

I,I'

r

I

!I
I

1

voter

II

24.2-444(B),

ion and

II

the

cert

s

1

words contained

statute

and may not

words a construct

amounts to

the

Assembly did not mean what it actually state•d."

~~~~~~~ 273 Va. 528 1 533, 643 S.E.2d 491, 493 {2007)

(internal citations omitted) . The General Assembly could have

added "copying" to subsection A, just as it did to subsection B,

but it did not.

voter

stration records discus

in

subsection A, therefore, were available only for inspection, not

copying. Rivera 1 S second assignment of error is wit:hout merit.

Rivera's third assignment of error states "[t]re trial court

erroneously ruled that Rivera was not entitled to ir.spect and copy

denied applications to

ster 1 after redaction of the applicants'

Social

ty numbers." Code§ 24.2-444(A) provided, in

pertinent part" "[n]o voter

strat

record cont a

an

individual's soci security number

1 be made

or

by

II

ly, if

strat

mus

t

t Soci

1 eo numbers.

strar,

Case 2:10-cv-00075-RBS -DEM Document 19-5 Filed 04/09/10 Page 4 of 4 PageID# 161

course,

to s

on

to

§ 2.2-3704(H)

error states

court

at

's

§ 2.2-3713(0)

"

costs and attorneys'

when a party "

ially

ls on the merits the case,

unless

ial circumstances would make an award unjust." In light

of s

" tanti ly prevailed."

On remand, the t

court must recalculate the award of attorney's

fees. "Where, as here, a statute authorizes recovery of attorney's

and expenses, the fact finder is required to determine from

the evidence the amount of the reasonable fees under the facts and

circumstances of each particular case. 'In determining a

reasonable fee, the fact finder should consider such circumstances

as the time consumed, the effort expended, the nature of the

services rendered, and other attending circumstances.'" Tazewell

Oil Co. v. Unit

, 243 Va. 94, 111 12, 413 S.E.2d

611 1 621 (1992) (quoting Mullins v. Riehl

, 241

Va. 447, 449, 403 S.E.2d 334, 335 (1991)). Additionally, the trial

court is rected to include in its

culation of attorney's

t

necessitated by this successful

circuit court is

A
Teste:

4

 
 Case 2:10-cv-00075-RBS -DEM Document 23 Filed 04/15/10 Page 1 of 13 PageID# 170

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA NORFOLK DIVISION

PROJECT VOTE/VOTING FOR AMERICA, INC.,

Plaintiff,

v.

Case No.: 2:10cv75

ELISA LONG and NANCY RODRIGUES,

Defendants.

DEFENDANTS LONG AND RODRIGUES' REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION TO DISMISS

Defendants, Elisa Long, General Registrar of Norfolk, Virginia ("Long"), and

Nancy Rodrigues, Secretary, Virginia State Board of Elections ("SBE")("Rodrigues''), by

counsel, hereby reply to Plaintiff's Opposition to their Motion to Dismiss.

I. Plaintiff Still Lacks Standing for the Reasons Cited by the Fourth
Circuit in Salt Institute

In its Opposition brief, Project Vote alleges that it has suffered an "informational

injury" giving it standing because it has been denied information subject to disclosure

under the NVRA. In support, Plaintiff cites cases such as Public Citizen v. U.S. Dept of

Justice, 491 U.S. 440 (1989) and Federal Election Commission v. Akins, 524 U.S. 11

(1998), which found concrete "injury" where parties entitled to information were denied

it Pl.'s Opp. at 4-8.

As a threshold matter, an organization can claim an "informational injury" only

when the harm is not simply a general one, such as the "'common concern for

obedience to law."' Akins, 524 U.S. at 23 (citation omitted). When large numbers of

Case 2:10-cv-00075-RBS -DEM Document 23 Filed 04/15/10 Page 2 of 13 PageID# 171
people share a widespread, common grievance, courts sometimes hold that the political
process, rather than the legal one, is the proper place for remedy. Id. Here,
Defendants do not believe that Plaintiff, a Washington, D.C.-based group with no ties to the students who applied to vote, alleges facts establishing more than a "common
concern" that would support standing even under Akins. Plaintiff also claims that in Salt Institute v. Leavitt, 440 F.3d 156 (4th Cir. 2006),
the Fourth Circuit "embraced" the "Public Citizen test." Pl.'s Opp. at 12. In reality, however, the Fourth Circuit held that the Public Citizen test answered a question different from the one before the Fourth Circuit, which therefore did not apply the rule in Public Citizen. Id. at 159.
More specifically, in Salt Institute, the Fourth Circuit held that the plaintiff lacked
standing to bring a claim because the statute in question did not give the plaintiff a legal right to the information the plaintiff demanded. Consequently, the plaintiff
suffered no "injury" and so had no standing. Id. The Fourth Circuit in Salt Institute also criticized the plaintiff-appellant, which,
like Project Vote, relied on Akins, for confusing two distinct standing inquiries, namely (1) the concreteness of the alleged injury and (2) the status of the claimed right. Id. Even accepting that a plaintiff can have a concrete "informational" injury under Public Citizen, Project Vote still lacks standing because it lacks the right to the information demanded, just like the plaintiff in Salt Institute. 1 Consequently, this Court, like the

urrv•t:>rt" Vote may try to argue

provision, than to

Motion to

the NVRA cannot ~'""'"''0"n'"'"'"1

2

which involved a statute containing a

But

filing

Case 2:10-cv-00075-RBS -DEM Document 23 Filed 04/15/10 Page 3 of 13 PageID# 172
Fourth Circuit in Salt Institute, need never reach the "concrete injuryu analysis from Public Citizen, and should still dismiss this case on standing grounds.
One of the most glaring reasons why Project Vote has no right to see completed voter registration applications is that they contain admittedly confidential information, including social security numbers and information about criminal convictions and mental
incapacitation. See Virginia Voter Registration Application, attached hereto as Exhibit
"A." In response, Plaintiff defends its request for the applications by saying that it would accept disclosure of applications with social security numbers redacted. Pl.'s Opp. at 25 and Exhibit "A" thereto at 6.
Unfortunately, that will still leave information about criminal convictions and
mental incapacitation open to public disclosure. See Exhibit "A." This sensitive
information goes directly to a person's eligibility to vote and so cannot be redacted, because the answers to those questions may form the basis for being denied registration. Because Plaintiff would need a person's name and address to determine whether his or her application was properly processed under the NVRA, there would be
no way of preventing Plaintiff or anyone else interested in seeing these applications
from connecting this sensitive information with an applicant's name and address. Granting Plaintiff's request would almost certainly discourage people either from
applying to vote, or from providing honest answers (about criminal background or mental incapacitation) when applying. This, in turn, would frustrate two core purposes

plainly confidential information. and thus no cl-,.1"\rlitV,

a right to 3

no injury

Case 2:10-cv-00075-RBS -DEM Document 23 Filed 04/15/10 Page 4 of 13 PageID# 173

of the NVRA, namely to encourage voter registration and integrity in the registration

process.

Defendants realize that this rebuttal to Plaintiff's standing argument relates to

Defendants' arguments on the merits (i.e., does Plaintiff have a right to disclosure of

these do~uments under the NVRA). Defendants now turn to those other arguments.

II. The Public Disclosure Provision Does Not Require Disclosure of Voter Registration Applications

A. Sections 1973gg-(6)(i)(1) and (2) Must be Considered Together

Plaintiff, in effect, asks the Court to consider the two subsections of the Public

Disclosure Provision as two separate statutes, even artificially separating discussion of

them in its brief. For example, Plaintiff first mentions § 1973gg-6(i)(1), which requires

the states to maintain for two years and make available for public inspection "all

records concerning the implementation of programs and activities conducted for the

purposes of ensuring the accuracy and currency of official lists of eligible voter . . ." on

page 16 of its Opposition. Plaintiff then only briefly mentions § 1973gg-6(i)(2), which

specifies the records to be maintained and made available, in a footnote on page 24,

and summarily dismisses any connection between the two provisions.

In doing so, Plaintiff asserts that § 6(i)(2) addresses only the record

maintenance requirement and does not relate to the disclosure requirement. By

§

that completed

voter registration applications must be disclosed.

In refusing to acknowledge a connection between the two provisions, Plaintiff

ignores "an elementary [rule] of statutory construction/' which requires the two parts of

4

Case 2:10-cv-00075-RBS -DEM Document 23 Filed 04/15/10 Page 5 of 13 PageID# 174

the Public Disclosure Provision to be read as one. Johnson v. Seaboard Air Line R. Co.

405 F.2d 645, 654 (4th Cir. 1968), cert denied by Pilot Freight Carriers, Inc v.. Walker,

394 U.S. 918 (1969). Section 1973gg-6(i) "must be read as a whole in order to

ascertain its true meaning. Each part or section should be construed in connection

with every other part or section to produce a harmonious whole." /d. (relying on 2

Sutherland, Statutory Construction, § 4703; Mastro Plastics Corp. v.. NLRB, 350 U.S.

270, 285 (1956); NLRB v. Lion Oil Co., 352 U.S. 282, 288 (1957)).

Only by disingenuously denying the clear relationship between § 6(i)(1) and §

6(i)(2) can Plaintiff argue that all records maintained by a state must be disclosed.

Taken to its logical conclusion, Plaintiffs skewed construction would allow the

inspection of any document within the possession of Long or the SBE.

The statute's plain meaning, reflected in the interplay between subsections (1)

and (2), defies that construction. The Public Disclosure Provision provides as follows:

(1) Each state shall maintain for at least 2 years and shall make available for public inspection and, when available, photocopying at a reasonable cost, all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters, except to the extent that such records relate to a declination to register to vote or to the identity of a voter registration agency through which any particular voter is registered.

(2) The records maintained pursuant to paragraph (1) shall include

lists of the names and addresses of all persons to whom notices

in

(d)(2) are sent, and information concerning

whether or not each such person has responded to the notice as

of the date that inspection of the records is made.

42 u.s.c. § 1973gg-6(i).

5

Case 2:10-cv-00075-RBS -DEM Document 23 Filed 04/15/10 Page 6 of 13 PageID# 175

Read as a whole, § 6{i)(2) identifies the records that under § 6(i)(1) states must

maintain for disclosure. In other words, the records identified in subsection (2) are

those records required to be maintained and made available for inspection in subsection

(1). In suggesting that subsection (2) speaks only to the maintenance requirement and

not to the disclosure requirement as well, plaintiff ignores that the statute clearly

intends the records to be maintained for a specific purpose. The rules of statutory

construction, and logic, preclude Plaintiff's attempt to parse subsection (2) for its own

purpose.

B. Section 6(i)(2) Limits Records to be Maintained for Disclosure

Section 6(i)(2) specifies that the records maintained pursuant to § 6(i)(1) "shall

include/1 lists of persons who receive notices and information regarding responses to the

notices. Plaintiff asserts that by using the term "include," Congress intended the

records described to be only "illustrative examples~~ and not a limitation.

In the context of this statute, however, "shall include" must be interpreted as a

limitation, not an enlargement. See Blankenship v. Western Union Tel Co., 161 F.2d

168, 169 (4th Cir. 1947) (interpreting the use of "includes" "as a term of limitation

indicating what belongs to a genus, rather than as a term of enlargement"); see also

Montello Salt. Co. v. Utah,

U.S. 452, 466 (1911) (rejecting conclusion that use of

the word "including" is "a word of enlargementfl in "its ordinary sense/' finding that it is

used that way only in "its exceptional sense").

Here, Congress provided for the disclosure of "all records concerning the

implementation of programs and activities conducted for the purpose of ensuring the

6

Case 2:10-cv-00075-RBS -DEM Document 23 Filed 04/15/10 Page 7 of 13 PageID# 176
accuracy and currency of official lists of eligible voters." 42 U.S.C. § 1973gg-6(i)(1). Congress then specifically excepted two types of records from maintenance and disclosure, declinations to vote and records identifying voter registration agencies, id., and specifically identified two types of records subject to maintenance and disclosure, both related to notices. 42 U.S.C. § 1973gg-6(i)(2). If Congress intended the term "include" in § 6(i)(2) as merely illustrative, rather than restrictive, it would not have specifically excepted certain records in § 6(i)(1). See Morris Friedman & Co. v. United States, 69 Cust.Ct. 184, 351 F. Supp. 611, 614 (1972) ("[B]y coupling a specific description of articles to be included with express exceptions thereto, we must conclude that the legislature intended that all other articles be excluded.").
Moreover, even assuming arguendo that Congress intended "shall include" to be "illustrative," Plaintiff's argument would make sense only if the records requested bore some relationship to the "illustrations." That is not the case here. The two illustrations in § 6(i)(2) relate to the § 1973gg-6(d)(2) notices discussed on page 12 of Defendants' Memorandum of Law, and attached to that Memorandum as Exhibit "B." Original voter registration applications are not even of the same general class.
C. Plaintiff Misrepresents .Jenkins v. Ousse as Precedent Plaintiff errs in representing to the Court that the District Court/s docket sheet and the Fifth Circuit's related opinion in Jenkins v. Ousse, 145 F.3d 359, 1998 WL 307588 (5th Cir. May 12, 1998), support its position that access to voter registration applications must be granted under the Public Disclosure Provision.
7

Case 2:10-cv-00075-RBS -DEM Document 23 Filed 04/15/10 Page 8 of 13 PageID# 177
In Jenkins v. Ousse, the plaintiff, an unsuccessful candidate for the United States Senate in Louisiana, sought immediate accessibility to registration records and precinct sign-in logs, in order to challenge the election. At the time, Louisiana law required that voter registration applications could only be made available for inspection and copying
upon a court order. The docket sheet, Exhibit "C' to PI's. Opp., reveals that an ex
parte TRO was granted on November 11, 1996 (Docket Entry #3). Within days, the defendants moved to dissolve the TRO (Docket Entry #5), and the plaintiff moved for a preliminary injunction (Docket Entry #7). The District Court then denied the request for declaratory and injunctive relief, as evidenced by the plaintiff's request for reconsideration on January 9, 1997 (Docket Entry #9), and entered judgment for the defendants, with costs, on March 5, 1997 (Docket Entry #15).
The parties' briefs on appeal to the Fifth Circuit, attached hereto as Exhibit "B," reveal that after the plaintiff filed his appeal, the Louisiana legislature repealed the requirement that a court order the inspection and copying of voter registration applications, thus rendering the plaintiff's challenge to that statute moot. The only NVRA issue before the Fifth Circuit was the alleged failure to permit inspection of precinct sign-in logs and the circuit court remanded the case for evidence on that issue alone. Jenkins v. Ousse, 145 F.3d 359, 1998 WL 307588 (5th Cir. May 12, 1998).
Upon remand1 the district court once again entered judgment for the defendants
(Docket Entry #38), and the Fifth Circuit affirmed. Id In the subsequent District Court
decision determining costs (Docket Entry #43)1 the Magistrate Judge found that "the registrars were 'wrongfully enjoined or restrained' and are entitled to recovery of their
8

Case 2:10-cv-00075-RBS -DEM Document 23 Filed 04/15/10 Page 9 of 13 PageID# 178

damages.'' Louis Jenkins v. Edwin W. Ousse, eta/., Civil Action No. 96-2613, Report and Recommendation, March 1, 1999, attached hereto as Exhibit "C."
The history of Jenkins v. Ousse thus lend no support to plaintiff's bold statement that the issue before this Court has been considered by "a federal court" and that "access to the completed voter registration applications was sought and granted under the Public Disclosure Provision." Pl.'s Opp. at 18 - 19.
III. Conclusion
For these reasons and those set forth in their Memorandum of Law, Defendants Elisa Long and Nancy Rodrigues respectfully request that the Court dismiss Plaintiff's claim, with prejudice.
Respectfully submitted, ELISA LONG Defendant

Jeff W. Rosen, Esquire Virginia Bar No. 22689 Attorney for Elisa Long
Pender & Coward
222 Central Park Avenue Virginia Beach, Virginia 23462 Phone: (757) 490-6253
(757) 497-1914

Of Counsel

9

Case 2:10-cv-00075-RBS -DEM Document 23 Filed 04/15/10 Page 10 of 13 PageID# 179

Lisa Ehrich, Esquire Virginia Bar No. 32205 Attorney for Elisa Long
Pender & Coward 222 Central Park Avenue Virginia Beach, Virginia 23462 Phone: (757) 490-6253 Fax: (757) 497-1914 Email: lehrich@pendercoward.com

NANCY RODRIGUES Defendant

Stephen M. Hall Virginia Bar No. 44132 Assistant Attorney General III Counsel for Defendant Nancy Rodrigues Office of the Attorney General 900 East Main Street Richmond, Virginia 23219 Phone: (804) 786-1586 Fax: (804) 371-2087 Email: shall@oag.state. va.us

Of Counsel

lO

Case 2:10-cv-00075-RBS -DEM Document 23 Filed 04/15/10 Page 11 of 13 PageID# 180
CERTIFICATE OF SERVICE
I hereby certify that on the 15th day of April, 2010, I electronically filed the foregoing Defendants Long and Rodrigues' Reply to Plaintiff~ Opposition to Defendants' Motion to Dismiss with the Clerk of Court using the CM/ECF system, which will send a notification of such filing (NEF) to the following:
Augustine Marin Ripa Ropes & Gray, LLP 700 12th Street NW; Suite 900 Washington, DC 20005 Augustine.ripa@ropesgray.com
Jason Gassan Idilbi Ropes & Gray, LLP 700 12th Street NW; Suite 900 Washington, DC 20005 Jason.idilbi@gopesgray.com
Ryan Morland Malone Ropes & Gray, LLP 700 12th Street NW; Suite 900 Washington, DC 20005 Ryan.malone@ropesgray.com
Douglas H. Hallward-Driemeier, Esq. Ropes & Gray, LLP 700 12th Street NW; Suite 900 Washington, DC 20005 Douglas.H. Hallward-Driemeier@ropesgray.com
David 0. Stewart, Esq. Ropes & Gray, LLP
700 12th Street NW; Suite 900 Washington, DC 20005
11

Case 2:10-cv-00075-RBS -DEM Document 23 Filed 04/15/10 Page 12 of 13 PageID# 181
Bradley E. Heard, Esq. Advancement Project 1220 L Street, NW Suite 850 Washington, DC 20005 bheard@advancementproject.org
Yolanda Sheffield, Esq. Project Vote 737 112 8th Street SE Washington, DC 20003 ysheffield@projectvote.org Attorneys for Plaintiff
Jeff W. Rosen, Esq. Virginia Bar No. 22689 Attorney for Elisa Long Pender & Coward 222 Central Park Avenue Virginia Beach, Virginia 23462 Phone: (757) 490-6253 Fax: (757) 497-1914 Email: jrosen@pendercoward.com

Case 2:10-cv-00075-RBS -DEM Document 23 Filed 04/15/10 Page 13 of 13 PageID# 182
Bradley E. Heard, Esq.
Advancement Project 1220 L Street, NW Suite 850 Washington, DC 20005 bheard@advancementproject.org Yolanda Sheffield, Esq. Project Vote
737 V2 8th Street SE
Washington, DC 20003 y:sheffield@projectvote.org Attorneys for Plaintiff
Jeff W. Rosen, Esq. Virginia Bar No. 22689 Attorney for Elisa Long Pender & Coward 222 Central Park Avenue Virginia Beach, Virginia 23462 Phone: (757) 490-6253 Fax: (757) 497-1914 Email: jrosen@pendercoward.com
12

Case 2:10-cv-00075-RBS -DEM Document 23-1 Filed 04/15/10 Page 1 of 1 PageID# 183 EXHIBIT

Virginia Voter Registration Application Form

I

~Use this form to register to vote in Virginia or report a change in name or address. If you are already registered with your current name and address, you do not need to re-register.

To regider to vote in Virginia. vou 11111st · Be a Unitad Statu citizea · Be a rasidenl of Virginia Be 18 run old lly the aext geaerelelection

· Have had your votiag riglds restored if you have ever been convicted of a felony
· Have had your capacity restored if you have ever been
declared mentally incapacitated in a Circuit Court

~Starred(*) items are required. If you do not complete all of the items that are marked with*, your application may be denied. Once your local registrar approves your application, you will receive a
voter card by mail.

•Afa you a citizen of the United States *Will you be at least 18years of age on or before If you checked ·NO* In responu to either of

ofAmerica? DYES DNO

thenextGeneraiEiectionday? DYES DNO tl'leaequedons.donotcompletethieform.

D Male 0 Female *Gender

• Date of Birth

Daytime Telephone Number

• Residence (Permanent! Home Address

Apt/Unit/lot/Rm/Ste City/Town

Zip Code

If Rural Address or Homeless, please describe where you reside

E·mail address

(If diHerent'll Virginia P.O.Box or Uniformed Service Address, if applicable 0 City or 0 County

State where convicted ;n::::;;n::::;;;;;:::;;;:::::;-;;:=;;;:=;;;:=;;;:=;;------

lf YES, have your voting rights been restored? 0 YES 0 NO If YES, when restored?
r r [ I rnA~~IJl • Have vou ever been judged 111entelly iacepecitatad? 0 YES 0 NO If YES, has court restored you to capacity? DYES 0 NO If YES, when restored?

Registration Statement: lswear/effinn. under felony penalty for Nking willfully false mtterial state111eats or errtries, that the

infomation provided an this for111 is tree. I autl'lorize the cancalfati011 (entered In Box 1 below) of my currut registrati011 ead I have

~·Sigrneaa,d.th.e(oPrrmivaarclvcAicftuNnaobticlee 011 tl'le front of tl'lis fonn.

rn,rn,

..-...-!If-.!If fmlll-- lilt.....,_!If !If ff applicantil unllhllllltlp due Ill t phyalcal dilabiJi!V, write tha lllme/lddml al rm- wilD aulmd.t~. LJ~Iyout.-1 dlsallllylhl!,.._ac__,.ilonftrtovotL

0 rill.__. ioiiMtillt U

n-lddr- YCII !MY raqunt!lltt W<M!t

not ba rtllutd If W<M1 Of me-al )'0111 hounl!ofd tra(tl ...... Ill' hllinlllaW IIIIIICI.,IIt lbliiM fiHil trtn!ad 1

ElllcliM OllioW 1111 ElllcliM a.,.

(tl • • in fatrof)'OII1!)M-IImloty

wllollullln!IIIHft lllllbllyou ...:1 h - flied • <!lllllllmtap!M! lllltrm-wllll

I'IMu lftll M ~ I .....Sit$ ltw enfflft-ll! lmm .-d! <opy of <!>men!l !If ldl pattlclp$ Ill

t:olllllalldly , . . _ YCII- show t VWflillio P.D, lllllt W!ftt

maiiint•ddrnsinllmr3.-. o~.aw~ Ul'nll<ltlliHIIIIIIII' o~· D...._~,--

*Previous Voter Registration Information-Commonwealth of Virginia
0 No, I am not currently registered to vote in Virginia or another state. 0 Yes, I am registered to vote at another addren in Virginia or in another state. If YES, the intormati011 below IIIUst be cornplated:

Case 2:10-cv-00075-RBS -DEM Document 23-3 Filed 04/15/10 Page 1 of 14 PageID# 214 Case 5:96-cv-02613-DEW-RSP Document 43 Filed 03/01/99 Pa~1'tJ9f 14

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION

EXHIBIT

LOUIS JENKINS versus EDWIN W. OUSSE, ET AL.

CIVIL ACTION NO. 96-261~------ri!J'
JUDGE WALTER MAGISTRATE JUDGE PAYNE

REPORT AND RECOMMENDATION

Procedural History

Louis "Woody" Jenkins ("Jenkins") was an unsuccessful

candidate in the November 5, 1996 election of a United States

Senator for Louisiana. On November 12, 1996 Jenkins filed in this

court a complaint for declaratory and injunctive relief along with

an application for a temporary restraining order ("TRO"). Jenkins

alleged that there were voting irregularities in the election and

requested that the court order the 64 registrars of voters

throughout Louisiana to immediately make available to Jenkins

certain voter registration and election records. He contended that

immediate

was necessary because any state court challenge to

the

had to be

by November 14. Judge Walter

TRO by signing an order that

part, as

ruct their agents and

to

extent with [Jenkins] and his

in making

copying, including

the

and

ca

Case 2:10-cv-00075-RBS -DEM Document 23-3 Filed 04/15/10 Page 2 of 14 PageID# 215 Case 5:96-cv-02613-DEW-RSP Document 43 Filed 03/01/99 Page 2 of 14

{Jenkins] reasonable costs order.(emphasis added)

ted with this

Jenkins did file a timely state court election contest, but

voluntarily dismissed it three days later, complaining of a lack of

cooperation by election officials in providing evidence to support

his claims. He also filed an unsuccessful challenge to the

election in the United States Senate. Judge Walter later entered

a judgment that denied on the merits the request for declaratory

and permanent injunctive relief, and directed the defendant-

registrars to file a bill for costs. (Doc. 15} The Fifth Circuit

later remanded the case for the district court to complete the

record. (Doc. 37) Judge Walter again rendered judgment against

Jenkins, and the Fifth Circuit affirmed. (Docs. 38 and 42)

Now before the court is a Motion for Costs (Doc. 17} filed by

Louisiana's 64 registrars of voters. They seek a total of

$64,067.33 as reimbursement for the costs incurred by them in

complying with the TRO. The individual registrars request amounts

varying from a low of $62.50 by Union Parish to a high of more than

$11,000 by Orleans Parish. 1 Jenkins does not contest the

registrars' right to costs but complains that the amounts requested

are

at Docs. 26 & . For

the reasons

fol

is

costs

incurred no extra 2

or have

Case 2:10-cv-00075-RBS -DEM Document 23-3 Filed 04/15/10 Page 3 of 14 PageID# 216 5:96-cv-02613-DEW-RSP Document 43 Filed 03/01/99 Page 3 of 14

$56,404.23 be awarded to the registrars in the amounts set forth on

Exhibit A attached hereto.

The Court May Act On the Motion

Taxation of costs is ordinarily performed by the Clerk of

Court. Local Rules 54.3 and 54.4 The registrars' motion was,

however, originally referred to the undersigned Magistrate Judge.

In a later Minute Entry Order, the undersigned stated that the

motion would be transferred to the Clerk of Court in accordance

with F.R.C.P. 54(d) (1) and the cited local rules. (Doc. 25) The

Clerk of Court later requested that the undersigned address the

cost issues in the first instance. The undersigned must first

examine its authority to do so.

"The function of the court in the process of taxing costs is

merely to review the determination of the Clerk. Therefore,

nothing normally can come before the court until the Clerk has

acted and an objection has been made." Wright, Miller & Kane,

Federal Practice and Procedure: Civil 3d §2679, p. 488 (1998).

Courts have, however, recognized the ability of the court to tax

costs without any prior proceeding before the clerk if the items

involved are not routine or

too di

a

for the

k.

s case

such an

ion.

Furthermore, the court is the

to assess

under

F.R.C.P. (c), as

below.

3

Case 2:10-cv-00075-RBS -DEM Document 23-3 Filed 04/15/10 Page 4 of 14 PageID# 217 Case 5:96-cv-02613-DEW-RSP Document 43 Filed 03/01/99 Page 4 of 14

Legal Basis For Awarding Costs

No party has addressed the legal basis for the court to

the requested costs. The court should ordinarily award costs to a

prevailing party under F.R.C.P. 54(d), but costs awarded under that

rule are strictly limited to those categories of expenses listed in
28 u.s.c. §1920. Loyisiana Power & Light Co. v. Kellstrom, 50 F.3d 319, 334-35 (5th Cir.), ~·denied, 516 u.s. 862, 116 S.Ct. 173

(1995). Among the categories in §1920 is "fees for exemplification

and copies of papers necessarily obtained for use in the case." It

is less than certain that the costs sought by the registrars would

be covered by that provision, and no other categories appear to be

applicable.

Another source of law is F.R.C.P. 65(c) which requires that

the court require the party seeking a TRO to give security for the

payment of costs and damages incurred by a party who was found to

have been wrongfully restrained. Judge Walter set the bond in this

case in the amount of $20,000. The amount of the bond both assures

the enjoined party of ready recovery of damages without regard to

the possible insolvency of the plaintiff and provides the plainti

with

of

maximum extent

s

1 lity. The

amount of

limits the

a

can obta from

a

or even the

i

unct if

the

the TRO in

8 F. 2d 801 ( Cir. 198 9) 1

4

Case 2:10-cv-00075-RBS -DEM Document 23-3 Filed 04/15/10 Page 5 of 14 PageID# 218 5:96-cv-02613-DEW-RSP Document 43 Filed 03/01/99 Page 5 of 14

883 F.2d 333 (5th r. 1989). ~ ~~ Co~ne-Delany Co .. Inc. y.

Capital Development Board, 717 F.2d 385, 392-93 (7th Cir. 1983).

Thus, it

at rst blush that Jenkins' 1

lity is

capped at $20,000.

A party may, however, supplement a bond with an agreement to

undertake liability in excess of the face amount of the bond.

Courts often accept that undertaking as an addi tiona! form of

security if they are satisfied that (1) the plaintiff would be able

to satisfy any judgment for damages for wrongful issuance of the

injunction, and (2) providing a bond for the maximum potential

amount would impose a great hardship on the plaintiff. CQntinuum

CQ .. Inc., 873 F.2d at 804. Such an undertaking is a valid form of

security and is enforceable in federal court. CQntinuum Co., Inc.,

883 F.2d at 335.

Neither Jenkins' complaint nor memorandum in support of his

request for a TRO addressed the issue of security, but it appears

that it was Jenkins' own proposed form of order that was entered by

Judge Walter and which provided that the court "shall impose upon

[Jenkins] reasonable costs

ated with this order".

Furthermore, Jenkins has not sed any limitation

to the

Costs. He

s

to the

s

of the amounts

Based on these facts, the court f

that Jenkins

to

the

s for their costs,

5

Case 2:10-cv-00075-RBS -DEM Document 23-3 Filed 04/15/10 Page 6 of 14 PageID# 219 Case 5:96-cv-02613-DEW-RSP Document 43 Filed 03/01/99 Page 6 of 14

without limitation to the amount of the bond, as an additional form

of security.

Equity Also Requires an Award of Damages

In this case it appears that Jenkins agreed to reimburse the

registrars' costs associated with the TRO whether or not it was

wrongfully issued. Even if that were not the case, controlling law

would require the reimbursement. District courts use at least three

competing standards when assessing damages in favor of a party who

is found to have been "wrongfully enjoined or restrained" under

Rule 65(c). Some cases favor an "automatic damage" standard while

others require a "malicious prosecution" standard. The rule in the

Fifth Circuit appears to fall in the middle. It employs what is

called the "judicial discretion" standard. Under that standard,

the court should exercise its equity power to effect justice

between the parties, avoiding any result that would be inequitable

or oppressive for either party. H&R Block Inc. y, McCaslin, 541

F.2d 1098, 1099 (5th Cir. 1976), ~- denied, 430 U.S. 946, 97

S.Ct. 1582 (1977); State of Alabama y. U.S. EPA, 925 F.2d 385, 388-

89 {11th Cir. 1991) (discussing Fifth Circuit law); and Cappaert

564 F.Supp.

214 1 217 -18 {E . D. La • 198 3) . ter remarked later in

that "I'm

to

I never should have

that order". {Doc.

39, p. 3, 1. 7-8) He also denied any

injunctive relief.

6

Case 2:10-cv-00075-RBS -DEM Document 23-3 Filed 04/15/10 Page 7 of 14 PageID# 220 Case 5:96-cv-02613-DEW-RSP Document 43 Filed 03/01/99 Page 7 of 14

Thus, it

that the

rs were "wrongfully enjoined or

restrained" and are entitled to recovery of their damages. The

court finds that the

of equity compels an award of costs

or damages for these

strars who were not merely enjoined from

engaging in an activity but were mandated by the court to perform

acts that were almost certain to cause them to incur expenses.

Furthermore, Jenkins proposed from the outset to reimburse those

costs, and his response to the motion does not contest his

obligation to do so.

Fixing the Amounts

The court now turns to determining the appropriate amount to

be awarded to the registrars. In assessing an amount due under

Rule 65 the court is not confined to the categories of costs set

forth in 28 U.S.C. §1920 or actual out-of-pocket expenses, but may

award "such costs and damages as may be incurred or suffered." The

documents requested by Jenkins were assembled and copied in various

ways. Some registrars used their own staff and their own copy

machines to accomplish the task. In some cases, employees had to

work overtime or

strars had to hire additional staff on a part-

time basis to pull records, black out

vacy-protected

information, make

assist in the

ted

work. Some

not own a copy machine so

as

jury or the

court

to make the

and bill

on a per

• A

few

strars sed

In some

Jenkins

7

Case 2:10-cv-00075-RBS -DEM Document 23-3 Filed 04/15/10 Page 8 of 14 PageID# 221

Case 5:96-cv-02613-DEW-RSP Document 43 Filed 03/01/99 Page 8 of 14

supplied all or some of the paper that was used in the registrar's

copiers. In a few other parishes he provided both copiers and

paper. Accordingly, the claim for each parish must be separately

analyzed and calculated, but

principles can be developed

that will consistently and equitably guide the award damages and

costs to each registrar.

Most of the registrars seek to recover: (1) either (a) the

actual costs incurred to have another agency copy documents or (b)

$.25 per page for copies that the registrar made with his machines

and paper; {2) reimbursement for wages attributed to "overtime"

hours worked by registrar employees in addition to their regular

eight hour dayi (3) reimbursement for wages paid to outside

employees that had to be hired especially to comply with the TRO;

and (4) a few miscellaneous out-of-pocket expenses.

Jenkins complains that a $. 25 per copy charge for copies

produced in-house by a registrar is sufficient to cover both the

actual costs of copying plus the related labor involved. He

contends, therefore, that to also reimburse the registrars for the

extra labor expenses would double charge him. In support of this

argument Jenkins submits the affidavit of John B. Levins, III, who

a

1 printing and copying business in Metairie.

Levins testifies that the hard cost (paper, toner,

city,

of

is about $. per

is about $.

for

at an

te

8

Case 2:10-cv-00075-RBS -DEM Document 23-3 Filed 04/15/10 Page 9 of 14 PageID# 222 5:96-cv-02613-DEW-RSP Document 43 Filed 03/01/99 Page 9 of 14

permit

Rule include 1 incidental and

costs

are di

a

to the TRO.

Wri , Mil & Kane, Federal PraQtice and PtPQedute; CiYil 3d

§2 3, p. 465 (1995) The registrars should not be permitted to

profit from their copying, but they should be fairly compensated

the costs that they have incurred. Mathematical precision in

determining those costs may not be possible based on the limited

evidence submitted by the parties, but the court believes that the

guidelines set forth below are fair and equitable.

The first component of an appropriate measure of the damages

suffered by the registrars is the value of the hours worked by

registrar employees beyond their ordinary office schedule and the

cost of any additional labor that had to be hired. 2 The registrars

call their extra-hours work "overtime." Jenkins points out that

the registrars actually afford only compensa1:ory time to their

employees, but that does not mean that the time is valueless.

Someone has to work when an employee later takes advantage of the

compensatory time, and the employee may cash in his

tory time upon

. Compensatory time

has

not

by Jenkins

documents thout
but

9

Case 2:10-cv-00075-RBS -DEM Document 23-3 Filed 04/15/10 Page 10 of 14 PageID# 223
Case 5:96-cv-02613-DEW-RSP Document 43 Filed 03/01/99 Page 10 of 14
it does not require the registrar to make an immediate out-ofpocket expenditure. The registrars so paid some part-time or extra employees actual cash as opposed to compensatory time. This component of the damages will be referred to hereinafter as the "extra labor costs."
The second component of damages is the actual costs, other than extra labor costs, that the registrars incurred to produce copies. Jenkins should compensate those registrars who made copies with their own machines and paper at a rate of $.10 per copy. That amount, based on Mr. Levins' affidavit and the fact that several of the registrars requested it, appears adequate to compensate for the ordinary cost of producing a copy. Jenkins should make straight reimbursement to those registrars who incurred charges when they turned to other agencies to make copies for a fee. Some of those fees are $.25, $.50 and even $1.00 per copy, but given the exigencies of the situation and the lack of commercial copy services in many parishes, the registrars cannot be faulted for not finding a better bargain. 3 When Jenkins provided the paper, he should be credited 1/2 cent per copy.

set

in

is the actual amount that

has been

If the court's a

ion is incorrect in

strar

remit to or

t Jenkins

in

amount

10

Case 2:10-cv-00075-RBS -DEM Document 23-3 Filed 04/15/10 Page 11 of 14 PageID# 224 Case 5:96-cv-02613-DEW-RSP Document 43 Filed 03/01/99 Page 11 of 14

The third component is other out-of-pocket expenses. This

includes the cost of leasing copy machines, as well as

mi laneous matters such as black mar

purchased by a few

registrars to delete private information from copies,

lular

phone calls ($21.56 in St. Landry Parish), mileage paid to an

employee ($5.28 in West Feliciana) and the employer portion of FICA

taxes for employees borrowed from other agencies ($12.88 in East

Baton Rouge). Jenkins does not quibble with any of the out-of-

pocket expenses, and they appear to be quite reasonable, so they

should be awarded as documented.

Accordingly,

IT IS REC~ED that the MOtion for Costs (Doo. 17) be

GRANTED, awarding costs in the amounts set forth on Exhibit A

attached hereto. The amounts set forth therein have been calculated in accordance with the findings and principles set forth in this recommendation. Copy costs and out-of-pocket expenses have been aggregated under the heading Copy Costs.

Ql:Pjegti.ons

Under the provisions of 28 U.S.C. §636(b) (1) (C) and Fed.R.Civ.

Proc. 72(b), pa

by

recommendation have ten (10}

business

from se

of this

to

file

fie, written

with the

Court,

an ex

of t

is

under Fed.R.Civ.P. 6(b). A pa

to another

ections within ten (10)

after

served wi a

thereof.

are

to

11

Case 2:10-cv-00075-RBS -DEM Document 23-3 Filed 04/15/10 Page 12 of 14 PageID# 225 Case 5:96-cv-02613-DEW-RSP Document 43 Filed 03/01/99 Page 12 of 14

furnish a courtesy copy of any objections or responses to the

District Judge at the time of filing.

A party's failure to

written objections to the proposed

and recommendation set forth above, within 10

days after being served with a copy, shall bar that party, except

upon grounds of plain error, from attacking on appeal the

unobjected-to proposed factual findings and legal conclusions

accepted by the district court. ~ Douglass v. U.S.A.A., 79 F.3d

1415 (5th Cir. 1996) (en bane).
THUS DONE AND SIGNED at Shreveport, Louisiana, this the~~

day of February, 1999.

COPY SENT BY:
DATE: TO:

R Y S. PAYNE UNITED STATES MAGISTRATE

12

Case 2:10-cv-00075-RBS -DEM Document 23-3 Filed 04/15/10 Page 13 of 14 PageID# 226 Case 5:96-cv-02613-DEW-RSP Document 43 Filed 03/01/99 Page 13 of 14

EXHIBIT A
Report & Recommendation (CV 96-2613)

Acadia Allen Ascension Assumption Avoyelles Beauregard Bienville Bossier Caddo Calcasieu Caldwell Cameron Catahoula Claiborne Concordia DeSoto E. Baton Rouge E. Carroll E. Feliciana Evangeline Franklin Grant Iberia Iberville Jackson Jefferson Jefferson-Davis Lafayette Lafourche
le Lincoln
ton Madison Morehouse
Ouachita

$

478.46

126.12

664.49

134.34

43.25

80.74

75.78

-0-

826.97

639.64

12.54

350.55

123.90

295.53

339.03

97.88

4,400.86

-0-

96.24

-0-

237.05

29.11

473.23

549.69

87.45

3,438.00

145.18

811.64

1,584.50

47.49

332.36

330.80

859.40

53.23

1,211.58

10,897.85

314.80

-0-

.04

2,0 .39

.47

$ 250.00 47.00 18.30 28.60
159.00 108.75 127.50
91.00 821.20
-0284.00 150.00 212.00 350.00 1,018.72 244.25 1,290.31
47.00 -0-0321.00 305.20 131.80 370.50 80.50 850.00 918.00 153.37 267.50 10.00 50.00 860.00 2,648.00 119.30 538.39 100. 2.20 -057.00 112 .00 56.50

TOTAL
$ 728.46 173.12 682.79 162.94 202.25 189.49 203.28 91.00
1,648.17 639.64 296.54 500.55 335.90 645.53
1,357.75 342.13
5,691.17 47.00 96.24
-o-
558.05 334.31 605.03 920.19 167.95 4,288.00 1,063.18 965.01 1,852.00 57.49 382.36 1,190.80 3,507.40 172.53 1,749.97 10,997.85 317.00
-o-
152.04 3,330.39
149.97

Case 2:10-cv-00075-RBS -DEM Document 23-3 Filed 04/15/10 Page 14 of 14 PageID# 227 Case 5:96-cv-02613-DEW-RSP Document 43 Filed 03/01/99 Page 14 of 14
EXHIBIT A (cont'd) Report & Recommendation (CV 9 613)

Richland

Sabine

St. Bernard

St. Charles

St. Helena

$

St. James

St. John

St. Landry

St. Martin

St. Mary

St. Tammany

Tangipahoa

Tens as

Terrebonne

Union

Vermilion

Vernon

~'lashing ton

Webster
w. Baton Rouge w. Carroll w. Feliciana

Winn

246.73 397.05 322.16
76.98 -0-0486.48 747.63 118.84 684.23 564.56 75.26 -0-0190.56 106.48 -0-0409.25 26.44 12 6. 90 185.32

147.25

1,003.00

755.75
-o-

$

9.50

-0-

-0-

127.26

767.10

260.35

463.20

169.50

46.35

-0-

62.50

250.00

58.30

193.75

246.25

9.00

34.80

79.28

160.75

393.98
1,400.05 1,077.91
-o-
$ 86.48
-o-o-
613.74 1,514.73
379.19 1,147.43
734.06 121.61
-o-
62.50 440.56 164.78 193.75 246.25
418.25 61.24
206.18 346.07

$56,404.23

2

 
 Case 2:10-cv-00075-RBS -DEM Document 25 Filed 08/04/10 Page 1 of 4 PageID# 229

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

PROJECT VOTE/VOTING FOR AMERICA, INC. 737 ½ 8th St SE Washington, DC 20003
Plaintiff,
v.
ELISA LONG, In Her Official Capacity as General Registrar of Norfolk, VA City Hall Building, Room 808 810 Union Street Norfolk, VA 23510
NANCY RODRIGUES, In Her Official Capacity as Secretary, State Board of Elections, Washington Building, First Floor 1100 Bank Street Richmond, VA 23219
Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO.: 2:10cv75 ) )
)
) )
)
)
)
)
)
)
)

PLAINTIFF PROJECT VOTE’S RESPONSE TO THE AUGUST 2, 2010 SUBMISSION BY DEFENDANTS
On August 2, 2010, counsel for Defendants submitted a list prepared by the State Board
of Elections of names and addresses of voter registration applicants in the City of Norfolk whose
applications were rejected between January 1, 2008, and January 9, 2009.1 Defendants’ position
is that this list satisfies the Commonwealth’s obligations to produce voter registration records
1 Defendants state that this list has previously been “made available” to Project Vote. Project Vote was permitted by Defendants to inspect this list, but not to make copies of it. In its complaint, Project Vote seeks both inspection and copying of the voter registration applications and other requested records.

Case 2:10-cv-00075-RBS -DEM Document 25 Filed 08/04/10 Page 2 of 4 PageID# 230
under Section 8(i) of the National Voter Registration Act of 1993, 42 U.S.C. § 1973gg-6(i) (the “Public Disclosure Provision”) and Virginia public records disclosure law. This list, which purports to be a secondhand summary of information derived, in part, from original records (i.e., completed voter registration applications) and information supplied by Defendant Elisa Long, is insufficient to fulfill the requirements of the NVRA’s Public Disclosure Provision. Under that provision, Plaintiff Project Vote is entitled to inspect and copy “all records” relating to voter registration activities, including the voter registration applications from which the determinations of the applicants’ ineligibility were made, along with the reasons for the ineligibility determination. Without those documents, it is impossible to tell why a particular voter was rejected, to verify whether the stated reasons for rejection were proper, or to determine whether or how that rejection can be remedied.
The disclosure of the limited information contained in this list produced by Defendants arises from an impermissibly narrow reading of the NVRA and the Defendants’ obligations under the Public Disclosure Provision. The Defendants are obligated to permit inspection and copying of the completed voter registration applications, because they are “records relating to the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters” under 42 U.S.C. § 1973gg-6(i). Patently, an official list of eligible voters is not accurate unless it includes all eligible voters who have properly applied to register. These records are critical to Project Vote’s mission of monitoring election officials’ compliance with the NVRA and working with community groups to ensure that eligible citizens who have timely registered to vote are not being mistakenly prevented from registering and voting in Virginia.
2

Case 2:10-cv-00075-RBS -DEM Document 25 Filed 08/04/10 Page 3 of 4 PageID# 231

Ryan Jason Augustine David
700 Washington TEL: FAX:
Project
OF COUNSEL:
Bradley E. Heard ADVANCEMENT PROJECT 1220 L Street, NW Suite 850 Washington, DC 20005 TEL: 202-728-9557 FAX: 202-728-9558 bheard@advancementproject.org (admitted pro hac vice)

Respectfully submitted,
/s/ Ryan M. Malone M. Malone (VA Bar # 48526) G. Idilbi (VA Bar #76869) M. Ripa (VA Bar #77244) O. Stewart (admitted pro hac vice)
Douglas H. Hallward-Driemeier (admitted pro hac vice) ROPES & GRAY LLP
12th Street NW, Suite 900 East D.C. 2005
202-508-4669 202-383-8322 Ryan.Malone@ropesgray.com
Counsel for Plaintiff Vote/Voting for America, Inc.

3

Case 2:10-cv-00075-RBS -DEM Document 25 Filed 08/04/10 Page 4 of 4 PageID# 232
CERTIFICATE OF SERVICE I hereby certify that on the 4th day of August, 2010, I electronically filed the foregoing pleading with the Clerk of Court using the CM/ECF system, which will send a notification of such filing to all counsel of record.
/s/ Ryan M. Malone Ryan M. Malone

 
 Case 2:10-cv-00075-RBS -DEM Document 32 Filed 10/29/10 Page 1 of 36 PageID# 312

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA
Norfolk Division
PROJECT VOTE / VOTING FOR AMERICA, INC.,
Plaintiff,

FILED
OCT 2 9 2010
CLERi<, US DISTRICT COURT NORFOLI<, VA

v.

Civil No . 2 : 10c v7 5

ELISA LONG, in her Official Capacity as General Registrar of Norfolk, Virginia,

and

NANCY RODRIGUES, in her Official Capacity as Secretary, State Board of Elections,

Defendants.

OPINION

On February 16 1 2010 1 the plaintiff/ Pr oject Vote / Vo ting For America , Inc. ("Proje c t Vote"), filed a Complaint for De c lara tory

and Injunctive Reli e f ( "Comp l aint " ) against the de f e ndants, Elisa

Long ("Long" ) a nd Nancy Rodrigues ("Rodri gues") .

On

March 26 , 2 010 1 the defendants filed a Mo t i on to Dismiss the Comp l aint ( "Motion") 1 pursuan t t o Federal Ru les o f Civ il Procedure 12 (b) (1 ) and ( 6 ) . On Ap r il 9, 2010 1 the plaintif f responded ("Response") I and t he defendants replied ("Re ply") on April 15 1 2010 . The Motion is now ripe for rev iew . I. Factual Background

Project Vote is a nonprofit 501 (c) (3) organiza t i on existing

under the laws of Lou i siana and having its principal office in t he District of Columb i a . (Compl. ~ 4) ; see 26 U. S.C . § 50 1 (c) (3 ) . It

Case 2:10-cv-00075-RBS -DEM Document 32 Filed 10/29/10 Page 2 of 36 PageID# 313
endeavors to increase voter registration and participation among low- income, minority, and younger voters, while "working to enforce and expand public policies and procedures that encourage full participation in elections." (Compl. ~ 4.) Defendant Elisa Long is the General Registrar of Norfolk, Virginia, and is responsible for
accepting and processing voter registration applications and requests for transfer or change of address; maintaining the official registration records for Norfolk, Virginia; preserving the written applications of all persons who are registered; and maintaining accurate and current registration records and complying with the applicable requirements for the transfer, inactivation, and cancellation of voter registrations. (Id. ~ 5 (citing Va. Code Ann. § 24.2-114 (6), (8), and (12)).) Defendant Nancy Rodrigues, as Secretary of the Virginia State Board of Elections, is responsible for overseeing the duties of the State Board of Elections, which supervises the city electoral boards and registrars in conducting elections, and creates rules, regulations, and instructions designed to bring local electoral boards in compliance with elections laws. (Id. ~ 6 (citing Va. Code Ann. §§ 24.2-103 and 404.1) .) Rodrigues is also responsible for the administration of the Commonwealth's responsibilities under the National Voter Registration Act ( "NVRA") , 42 U.S. C. § 1973gg et ~ (Compl. ~ 6.) Through its ongoing voter protection efforts in Virginia, Project Vote learned that several students at Norfolk State University, a historically African-American public university
2

Case 2:10-cv-00075-RBS -DEM Document 32 Filed 10/29/10 Page 3 of 36 PageID# 314

located in Norfolk, Virginia, had their voter registration
applications rejected by Long's office prior to the November 2008,
primary and general elections. (Id. ~ 14.) Suspicious that these
students' applications were incorrectly rejected by the Norfolk
General Registrar and that eligible voters may have been prevented
or discouraged from voting in the 2008 general election,
Advancement Project, a national civil and voting rights
organization with which Project Vote works, wrote an email request
to Long on May 11, 2009, pursuant to 42 U.S.C. § 1973gg-6 (i)
(hereinafter referred to as the "Public Disclosure Provision") , 1 to
'make available for inspection and copying the completed voter registration applications of any individual who timely submitted an application at any time from January 1, 2008, through October 31, 2008, who was not registered to vote in time for the November 4, 2008 general election,' and also other documents, 'such as documents identifying the reasons the applications were rejected.'
(Compl. ~ 15.) On May 13, 2009, Long responded to the email
stating that she would not permit inspection or copying of these

1

This provision reads in pertinent part:

Each State shall maintain for at least 2 years and shall make available for public inspection and, where available, photocopying at a reasonable cost, all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters, except to the extent that such records relate to a declination to register to vote or to the identity of a voter registration agency through which any particular voter is registered.
42 u.s.c. § 1973gg-6(i) (1) (emphasis added).

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records (collectively referred to as the "Requested Records") , 2 pursuant to Va. Code § 24.2-444, which purportedly forbids disclosure of the Requested Records. 3 (Compl. ~ 17.) On that same date, Martha Brissette, an attorney and policy analyst with the Virginia State Board of Elections, sent Advancement Project an email agreeing with Long's decision. (Id. ~ 18.)
On May 15, 2009, representatives from Advancement Project and Project Vote traveled to Long's Norfolk office, again seeking access to the Requested Records, and were again denied such access.

2

The plaintiff contends that without access to these

records, it cannot determine whether the applications were lawfully

rejected or whether "systemic election administration problems with

the Norfolk General Registrar's Office exist," so as to correct

those problems prior to the 2010 federal midterm elections.

{Compl. at 2-3.)

3

Virginia Code § 24.2-444 is entitled "Duties of general

registrars and State Board of Elections as to voter registration

records; public inspection; exceptions." Subsection A of this

provision addresses the requirement of the general registrar to

make lists of registered voters and lists of persons denied

registration and specifically requires that "the lists shall be

opened to public inspection at the office of the general registrar

when the office is open for business." Va. Code § 24.2-444 {A) .
Subsection B parrots the language of 42 u.s.c. § 1973gg-6(i), and

makes available for public inspection and copying records

"concerning the implementation of programs and activities conducted

for the purpose of ensuring the accuracy and currency of the

registration records," pursuant to other sections of the state

code. Va. Code § 24.2-444{B). Subsection C states that none of

the documents provided under subsections A and B should be made

available, if they contain: 1) an individual's social security

number ("SSN''); 2) an individual's residence, if the individual

furnished a post office box in lieu of residence; 3) the

declination to register vote and related records; 4) the identity

of a voter registration agency through which a voter was

registered; or 5) the day and month of birth of an individual. Id.

§ 24.2-444(C).

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(Id. ~ 19.) On June 22, 2009, Advancement Project and Project Vote

wrote to Rodrigues, purportedly pursuant to NVRA § 11(b), 42 U.S.C.

§ 1973gg-9(b), advising her that they believed Long's denial was in

violation of the Public Disclosure Provision of the NVRA. (Compl.

~ 20.) Advancement Project and Project Vote requested that

Rodrigues

issue a written directive to all General Registrars and state election officials advising them of their obligation under the NVRA to permit inspection and copying of 'all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters,' including copies of completed voter registration applications.

(Id.) (emphasis added) . 4

On that same date, Martha Brisette

responded to that request, stating that the State Board of

Elections, at its July 10, 2009, meeting, had requested an informal

opinion of the Attorney General of Virginia on this matter. (Id.

~ 21.) On September 25, 2009, Ms. Brisette forwarded Advancement

Project and Project Vote an informal opinion, dated

September 23, 2009, from Stephanie Hamlett ("Hamlett Opinion") ,

Senior Counsel to the Attorney General. (Id. ~ 22.) Ms. Hamlett

concluded that "'the completed voter registration application of

any individual is not a part of the record of the implementation of

programs and activities conducted for the purposes of ensuring the

4

The letter requested that the voter registration

applications be redacted to exclude only the applicant's SSN and

agency of registration, if applicable. (See Response, Ex. A.)

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accuracy and currency of official lists of eligible voters covered by [the Public Disclosure Provision] . '" (Id. (quoting Hamlett Opinion at 1) . )
Accordingly, the plaintiff has filed the instant Complaint, alleging that the actions of the defendants are in violation of the NVRA's Public Disclosure Provision. Specifically, the plaintiff claims that the NVRA and the Public Disclosure Provision require that the Requested Records be available to the public for inspection because they are records "'concerning the implementation of programs or activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters.'" (Id.
~ 29 (quoting 42 u.s.c. § 1973gg-6 (i)).) Additionally, to the
extent that the Virginia statute limits the availability of the Requested Records to the public for inspection and photocopying, it is superseded by the NVRA, pursuant to the Supremacy Clause of the United States Constitution. Therefore, the plaintiff asks the court to 1) declare that the defendants are in violation of the NVRA; 2) declare that the NVRA preempts the Virginia statute, and any other Virginia law or regulation stating the same (hereinafter referred to as the "preemption claim"); 3) permanently enjoin the defendants' denial of access to the Requested Records; and 4) award Project Vote the costs incurred in pursuing this action, as authorized by 42 U.S.C. § 1973gg-9(c).
In the Motion, the defendants assert two grounds for dismissal
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of the Complaint. First, the defendants contend, pursuant to Federal Rule of Civil Procedure 12(b) (1), that this court does not have subject-matter jurisdiction in this case because the plaintiff does not have individual or representational standing to sue under the NVRA. 5 The defendants contend that the plaintiff has not suffered an "injury in fact" and, thus, cannot state a valid claim. Second, the defendants contend, pursuant to Federal Rule of Civil Procedure 12 (b) (6), that the Requested Records are not records subject to the Public Disclosure Provision of the NVRA, and, thus, none of the plaintiff's claims are plausible. Moreover, they contend that the Virginia statute is, therefore, not in conflict with the NVRA, and the plaintiff's preemption claim, specifically, is implausible and must be dismissed. The court will address each ground, in turn, below. II. Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b) (1)
The defendants contend that this court lacks subject matter jurisdiction because Project Vote's claim that potentially qualified Norfolk State University students were denied voter registration does not amount to an "injury-in-fact," which could support standing. (See Mem. in Supp. Of Motion at 7-9.) Instead, the defendants contend that such a claim only shows that Project Vote's "ideals and social policy interests" have been harmed, which

5

The court notes that the plaintiff does not rely on

representative standing and offers no proof of such standing.

Thus, the court need not address that issue.

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are insufficient grounds for standing. (Id.) However, for the reasons detailed below, the court FINDS that the plaintiff has sufficiently alleged an informational injury, giving the plaintiff standing in this case. Therefore, the court DENIES the defendants' Motion to Dismiss for lack of standing.
A. General Standard of Review "Standing is a threshold jurisdictional question which ensures that a suit is a case or controversy appropriate for the exercise of the courts' judicial powers under the Constitution of the United States." Pye v. United States, 269 F.3d 459, 466 (4th Cir. 2001). A defendant may question a plaintiff's standing by either asserting that the complaint fails to allege sufficient facts to show it has standing or, that factual allegations cited by the plaintiff in support of standing are untrue. Adams v. Bain, 697 F. 2d 1213, 1219 (4th Cir. 1982). In the former case, the court must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party. In the latter case, the court may go beyond the allegations of the complaint and make factual findings as to whether the plaintiff has standing. Id. Nevertheless, the burden is on a plaintiff invoking federal subject-matter jurisdiction to allege, and ultimately prove, standing, namely that 1) the plaintiff suffered an actual or threatened injury, 2) there is a causal connection between the defendant's conduct and the injury, and 3) the injury will be
8

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redressed by a favorable decision. See, e.g., Miller v. Brown, 462

F.3d 312, 316 (4th Cir. 2006).

With regard to the injury prong, "[t]he actual or threatened

injury required [for standing] may exist solely by virtue of

statutes creating legal rights, the invasion of which creates

standing."

Warth v. Seldin, 422 U.S. 490, 500 (1975).

Accordingly, an organizational plaintiff, just like an individual

plaintiff, may bring suit based on injuries suffered by the

organization itself, in order "to vindicate whatever rights and

immunities the association itself may enjoy." Id. at 511.

However, "standing in no way depends on the merits of the

plaintiff's contention that particular conduct is illegal." Id. at

500. Specifically, where the merits of a case involve a question

of statutory construction, the "'district court has jurisdiction if

the right of the [plaintiffs] to recover under their complaint will

be sustained if the [applicable laws] are given one construction

and will be defeated if they are given another.'" Pitt County v.

Hotels.com, 553 F.3d 308, 312 (4th Cir. 2009) (quoting Steel Co. v.

Citizens for a Better Env't, 523 U.S. 83, 89 (1998)); cf. Adams,

697 F.2d at 1220 (holding that where factual disputes relating to

standing were "so intertwined with the facts upon which the

ultimate issues on the merits must be resolved, that 12(b) (1) is an

inappropriate basis upon which to ground the dismissal.").

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B. Standing Analysis The defendants' standing argument both mischaracterizes the nature of the injury which the plaintiff claims and misapprehends the burden which the plaintiff must meet to sufficiently allege such an injury at this stage of the litigation. Contrary to the defendants' characterization of plaintiff's claimed injury, Project Vote does not claim that it was harmed by the rejection of potentially qualified voter-applicants. Instead, the plaintiff claims that the defendants' refusal to allow access to the Requested Records, to which Project Vote was purportedly entitled under the NVRA, was a direct informational injury to Project Vote. 6 (See Response at 10.} For a plaintiff to sufficiently allege an informational injury, it must first allege that the statute confers upon it an

6

The focus of the plaintiff's claim is the denial of

access to the Requested Records by the defendants. The plaintiff's

reference to the potentially unlawful rejection of qualified

applicants highlights the reason for seeking the Requested Records,

and informs the way in which the plaintiff believes the NVRA should

be construed. The plaintiff contends that because the NVRA' s

purpose is to encourage voter registration and eliminate unlawful

impediments to a citizens' right to vote, the court should construe

the terms of the statute, particularly the Public Disclosure

Provision, in a manner that will allow a thorough investigation

into circumstances where potential voters may have been denied

their right to vote without proper, lawful consideration. In any

event, the plaintiff's particular motivation in seeking the

Requested Records is irrelevant to whether it has suffered an

injury in fact for standing purposes. Cf. EPA v. Mink, 410 U.S.

73, 86 {1973) (holding that the particularized need of the

individual seeking information under FOIA, a statute which grants

to the public the right to information, was irrelevant for standing

purposes).

10

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individual right to information, and then that the defendant caused a concrete injury to the plaintiff in violation of that right. See Salt Inst. v. Leavitt, 440 F.3d 156, 159 (4th Cir. 2006} (recognizing that standing based on an informational injury requires a two- fold inquiry into 1} the status of the claimed right, i.e., whether the plaintiff has any right to information, and 2} the concreteness of the alleged injury} . For example, in Public Citizen v. United States Department of Justice, 491 U.S. 440 (1989}, the plaintiff sought records from the American Bar Association's Standing Committee on the Federal Judiciary ("ABA Committee"}, pursuant to the Federal Advisory Committee Act ( "FACA"}, 5 U.S. C. App. § 1 et ~ The Supreme Court held that FACA created a public right to information by requiring advisory committees to the executive branch of the federal government to make available to the public its minutes and records, with some exceptions. 491 U.S. at 446-47. Moreover, because the plaintiff alleged that the defendant denied it that right, the Court rejected the defendant's contention that the plaintiff had not alleged an "injury sufficiently concrete and specific to confer standing." Id. at 448. Instead, the Court held that "refusal to permit [the plaintiff] to scrutinize the ABA Committee's activities to the extent FACA allows constitutes a sufficiently distinct injury to provide standing to sue." Therefore, the plaintiff "need show [no) more than that they sought and were denied specific agency
11

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records." Id. at 449. The Court reaffirmed the holding of Public Citizen in Federal
Election Commission v. Akins, 524 U.S. 11 {1998). In this latter case, the FEC determined that the American Israel Public Affairs Committee {"AIPAC") was not a "political committee" as defined by
the Federal Election Campaign Act {"FECA") , 2 u.s. c. § 431 et ~,
and, thus, was not required to make public disclosures regarding its membership, contributions, and expenditures as FECA required of "political committees." Again, the Court acknowledged that FECA, like the statute at issue in Public Citizen, created a public right
to information. 524 u.s. at 14 -15 . Moreover, the Court again
rejected the defendant's contention that the plaintiffs failed to allege an "injury in fact," and held that "[t]he 'injury in fact' that [the plaintiffs] have suffered consists of their inability to obtain information . . that, on [their] view of the law, the statute requires that AIPAC make public." Id. at 21. The Court reiterated that in Public Citizen it previously held that "when the plaintiff fails to obtain information which must be publicly disclosed pursuant to a statute," the plaintiff does suffer an injury in fact. 524 U.S. at 21 {emphasis added) ; 7 cf. Salt Inst.

7

The Court in Akins also rejected the defendant's

contention that the plaintiffs' alleged injury was too much of a

"generalized grievance" as it was "one which is shared in

substantially equal measure by all or a large class of citizens."

524 U.S. at 23. The Court noted that the "generalized grievance"

limitation on standing applied to cases where the plaintiff's

alleged injury was "of an abstract and indefinite nature" such as

12

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v. Leavitt, 440 F.3d 156, 159 (4th Cir. 2006) (finding that a plaintiff did not have standing to sue under the Information Quality Act because that statute did not create any right to information) .
In this case at bar, as in Public Citizen and Akins, the NVRA provides a public right to information. 8 There is no dispute that the plaintiff has been unable to obtain the Requested Records, which, in its view of the law, the NVRA requires the defendants to make publicly available. Moreover, the NVRA specifically provides a private right of action to any person who is aggrieved by a violation of the Public Disclosure Provision. See 4 2 U. S . C. § 1973gg-9(b) (1). Therefore, the plaintiff's alleged informational injury is sufficient to survive a motion to dismiss for lack of standing. However, the defendants still contend that the plaintiff does not have standing because the plaintiff is not entitled to the

the "common concern for obedience to the law." Id. at 23-24. The Court continued by noting that, like other cases where the number of persons have a shared injury, for example a mass tort case or a case where a large number of voters suffer interference with voter rights, the mere fact that an injury is widely shared does not, in and of itself, remove the plaintiff's standing in federal court. Id. at 24.

8

See supra note 1. Both the FACA and FECA have similar

public disclosure provisions. See FACA, 5 U.S.C. app. 2 § lO(b)

(" [T] he records, reports, transcripts, minutes, appendixes, working

papers, drafts, studies, agenda, or other documents which were made

available to or prepared for or by each advisory committee shall be
available for public inspection."); FECA, 2 u.s.c. § 434(a) (11) (B)

("The Commission shall make a designation, statement, report, or

notification that is filed with the Commission under this Act

available for inspection by the public.").

13

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Requested Records. (See Reply at 2-4.) In other words, the defendants contend that even if the plaintiff has a right to information under the NVRA, it has no right to the particular information it seeks under the NVRA. Such a contention "improperly conflate[s] the threshold standing inquiry with the merits" of the plaintiff's claim, Pitt County, 553 F.3d at 312, and it is in this regard that the defendants misapprehend the plaintiff's burden at this stage in the litigation.
In Pitt County, the Fourth Circuit reversed a district court's dismissal of the county's claim on the ground that it lacked standing because the district court ultimately concluded that the statute on which the county relied did not afford the county relief. Id. The Fourth Circuit held that the fact that the "district court ultimately disagreed with the County regarding the [construction of the statute] does not mean that the County failed to allege an injury in fact. To hold otherwise would reduce all merits inquiries in cases of this type into standing inquiries." Id. In this case, Project Vote need not prove, for standing purposes, that it has a right to the Requested Records, because this determination depends upon the court's ultimate construction of the statute at issue. See id. at 312 (recognizing that a plaintiff "'need not prove the merits of [its] case in order to demonstrate that it ha [s] Article III Standing.'" (quoting Am. Library Ass'n v. FCC, 401 F.3d 489, 493 (D.C. Cir. 2005}}}; see
14

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also Akins, 524 U.S. at 21 (holding that whether a plaintiff has alleged an injury-in-fact depends upon whether the plaintiff is unable to obtain information which, in the plaintiff's view of the law, creates the right to access that information). Accordingly, the court DENIES the defendants' Motion to Dismiss the Complaint for lack of standing. III. Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b) (6)
The defendants claim that Project Vote is not entitled to the Requested Records and, thus, Project Vote has not stated a plausible claim for declaratory and injunctive relief. For the reasons detailed below, the court FINDS that the Public Disclosure Provision grants the plaintiff certain access to the Requested Records and, thus, the plaintiff has stated plausible grounds for declaratory and injunctive relief. 9 Therefore, the court DENIES the defendants' Motion to Dismiss for failure to state a claim.
A. General Standard of Review When ruling on a motion to dismiss, pursuant to Federal Rule of Civil Procedure 12(b) (6), the court accepts the facts alleged in the Complaint as true and views them in the light most favorable to the plaintiff. Advanced Health-Care Servs .. Inc. v. Radford Cmty. Hosp., 910 F.2d 139, 143 (4th Cir. 1990). However, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is

9

The extent of the access remains to be determined.

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plausible on its face.'" Ashcroft v. Igbal, 129 S. Ct. 1937, 1949

(2009) (quoting Bell Atlantic CokP. v. Twombly, 550 U.S. 544, 570

(2007)). "A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged."

Id. (citing Twombly, 550 U.S. at 556). Accordingly, the plaintiff

must allege facts that show more than a "sheer possibility" or

"mere[] consist [ency]" with unlawful conduct, but must instead show

that the plaintiff is entitled to relief. Id. (citing Twombly, 550

u.s. at 557).

To resolve whether plaintiff has stated a claim upon which

relief may be granted, the court must decide whether the Requested

Records, namely voter registration applications, are "records

concerning the implementation of programs and activities conducted

for the purpose of ensuring the accuracy and currency of official

lists of eligible voters."

4 2 u. s . c . § 197 3gg- 6 (i) (1) .

Accordingly, the court must first determine what constitutes a

program or activity conducted for the purpose of ensuring the

accuracy and currency of official lists of eligible voters. The

court then applies that standard to determine whether voter

registration records, specifically voter registration applications,

concern the implementation of such a program or activity. 10 To do

10 This issue appears to be one of first impression, as the court has found no federal case law, and the parties have presented none, construing this section of the NVRA in the manner that it
16

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so, the court examines the plain meaning of the Public Disclosure Provision.
B. Plain Meaning Analysis In construing a statute, the court applies the plain meaning of the statutory language, unless there is a clearly expressed legislative intent to the contrary, or "when a literal application would frustrate the statute's purpose or lead to an absurd result." Nat'l. Coal. for Students with Disabilities Educ. & Legal Def. Fund v. Allen, 152 F.3d 283, 288 (4th Cir. 1998}. Where the statutory language has a plain meaning, the court's inquiry is complete and it will enforce the statute as written. Stephens ex rel. R. E. v. Astrue, 565 F.3d 131, 137, 140 (4th Cir. 2009}. A statute's plain meaning is defined by the statutory language's common and ordinary meaning, absent an indication from Congress that the language should have a different meaning, id. at 137, and by both the specific context in which the language is used and in the broader context of the statute as a whole. Robinson v. Shell Oil Co., 519
u.s. 337, 341 (1997} . 11
must be construed in this case. While the plaintiff cites Jenkins v. Ousse, 145 F.3d 359 (5th Cir. 1998}, upon the court's review of that case, that opinion did not address the issues presented in this case.
11 Alternatively, where statutory language is ambiguous, and thus lacking a plain meaning, the court will look to a statute's legislative history to determine the intent of Congress. See, ~. Stiltner v. Beretta U.S.A. Corp., 74 F.3d 1473, 1482 (4th Cir. 1996}.
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The defendants insist that the Public Disclosure Provision only "mandates public access to records that prove the states are properly maintaining lists of registered voters," and, thus, does not "cover the registration applications of people who never enter these lists." (See Mem. in Supp. of Motion at 11, 13.} In other words, they contend that, under a plain meaning analysis, only programs and activities which facilitate the proper removal of already-registered voters from the voter rolls, or which allow updating the information of already-registered voters on the voter rolls, or both, are contemplated by the Public Disclosure Provision as programs and activities that ensure the "accuracy and currency of official lists of eligible voters." (Id.} Thus, only records related to those procedures, which would clearly not include voter registration applications, must be disclosed for public inspection. The court cannot agree with the defendants' construction of the Public Disclosure Provision, as it contradicts the statute's plain meaning.
1. Common and Ordinary Meaning At a threshold level, the court must determine whether voter registration applications are "records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible
voters." 42 u.s.c. § 1973gg-6(i} (1}. To do so, as stated above,
the court looks to the common and ordinary meaning of this
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statutory language. The term "eligible" refers to one that is

"qualified to be chosen" or "entitled to something." Webster's

Third New International Dictionary 736 {2002} . 12 The term "current"

refers to something that is "occurring in or belonging to the

present time" or is "most recent," id. at 557, while the term

"accurate" refers to something "free from error ... esp[ecially]

as the result of care" or "in exact conformity to truth or to some

standard." Id. at 14. Accordingly, a program or activity covered

by the Public Disclosure Provision is one conducted to ensure that

the state is keeping a \\most recent" and errorless account of which

persons are qualified or entitled to vote within the state.

The process by which the Commonwealth determines whether a

person is eligible to vote certainly falls within the purview of

the federal statute, as such a process, by its very nature, is

designed to ensure that the Commonwealth's lists are current and

accurate.

The process of evaluating voter registration

applications, which determines whether a person belongs on the

12 See, e.g., United States v. Groce, 398 F.3d 679, 682 {4th Cir. 2005} {finding the use of dictionary definitions authoritative when construing a statute's common and ordinary meaning). The dictionary definitions used in the text of this Opinion are from the most recent published Webster's Third New International Dictionary (2002}. The court notes, however, that the 2002 definitions remain exactly the same, and are even on the same pages, as those in Webster's Third New International Dictionary {1966}. Moreover, the court also consulted the 2010 online versions of Merriam-Webster Dictionary and of the Oxford English Dictionary to verify these definitions, which are all virtually identical with those used in the text.
19

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voter rolls, is a central part of "ensuring the accuracy and
currency of the official lists of eligible voters." 42 u.s.c.
§ 1973gg-6 (i} (1} . 13 Similarly, the establishment, and proper
administration, of voter registration procedures, about which the
NVRA seems primarily concerned, directly informs whether the lists
of eligible voters are current and accurate. Simply put, "official
lists of eligible voters" would be inaccurate and obsolete if
eligible voters were improperly denied registration. 14
Additionally, the exceptions to the Public Disclosure
Provision provide evidence that it contemplates and covers voter
13 This fact is made clearer by Virginia's Voter Registration application, which states that a person is not "officially registered to vote until this application is approved." (See Mem. in Supp. of Motion, Ex. D.} Accordingly, evaluation and approval of a voter registration application determines whether one is entitled to be on the lists of eligible voters, and, thus, whether the lists are accurate and current.
14 The defendants cite, at length, the NVRA sections having to do with removing voters, but never fully develop any cogent basis for concluding that the NVRA or the Public Disclosure Provision relates exclusively to those procedures. To the contrary, the defendants concede that the statute incorporates voter registration procedures and voter removal procedures. (See Mem. in Supp. of Motion at 16} ("Congress intended to provide public disclosure only for records related to the procedures states use for voter registration and the maintenance of voter rolls (particularly with regard to accurate removal from those rolls} . . . . " (emphasis added}}. Notwithstanding this contradiction of their original position that the Public Disclosure Provision only refers to records related to procedures used for voter removal, the defendants perplexingly, and ultimately ineffectively, attempt to distinguish voter registration applications from other records related to voter registration procedures. As the statute requires disclosure of "all records" relating to voter registration procedures, ~ fortiori voter registration applications, which obviously so relate, must also be disclosed.
20

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registration procedures, as the exceptions directly address records concerning such procedures. The Public Disclosure Provision provides that records which "relate to a declination to register to vote or the identity of a voter registration agency through which any particular voter is registered" are not subject to disclosure under the Public Disclosure Provision. 42 U.S.C. § 1973gg-6(i}. The first exception refers to concealing records which relate to persons that decline to register, and the second exception refers to the confidentiality of records which relate to the agency through which a voter registered. It is clear that these records relate to voter registration procedures, demonstrating that the Public Disclosure Provision necessarily contemplates records relating to voter registration procedures. Accordingly, if the defendants' contention were true, the inclusion of those exceptions would be superfluous because it would mean that the exceptions refer to records that were never within the purview of the Public Disclosure Provision in the first place. However, "it is a classic canon of statutory construction that courts must give effect to every provision and word in a statute and avoid any interpretation that may render statutory terms meaningless or superfluous." Discover Bank v. Vaden, 396 F.3d 366, 370 (4th Cir. 2005} (citation omitted}.
The court also finds that, with respect to records which "concern" the "implementation" of voter registration procedures, a
21

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common and ordinary understanding of those terms encompasses voter registration applications. The term "concern" means "to relate or refer to," to "be about," or "to have an influence on." Webster's Third New International Dictionary 470 (2002) . 15 The term "implementation" means the act of "carry [ing] out" or "accomplish[ing]" or "giv[ing] practical effect to and ensur[ing] ... actual fulfillment by concrete measures." Id. at 1134-35. Accordingly, records which relate to carrying out voter registration procedures are subject to the Public Disclosure Provision's requirements.
As stated above, voter registration procedures are the procedures by which the Commonwealth evaluates whether persons belong on the lists of eligible voters, thus ensuring the accuracy of those lists. A completed voter registration application is the means by which an individual provides the information necessary for the Commonwealth to determine his eligibility to vote. It is clear, then, that voter registration applications, perhaps more than other records, are relevant to carrying out voter registration procedures. 16 Moreover, the fact that the Public Disclosure
15 See supra note 12. 16 Purportedly in support of its position that disclosure of voter registration applications is not contemplated by the Public Disclosure Provision, the defendants cite the FEC' s guide to implementing the NVRA, published in 1994, which states that in light of the Fourth Circuit's opinion in Greidinger v. Davis, 988 F.2d 1344 (4th Cir. 1993), states may want to further consider whether to allow original voter documents to be disclosed to the
22

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Provision very clearly requires that "all records" be disclosed brings voter registration applications within its reach. The records which Congress did not want to be encompassed by the term "all" were specifically identified in the exceptions to the Public Disclosure Provision, and voter registration applications do not fall within either of those exceptions. Therefore, the court will not undermine the purposeful usage of a broad term by Congress, in order to limit the scope of the statute. See Students with

public. {See Mem. in Supp. of Motion, Ex. E) {hereinafter referred

to and cited as the "FEC Guide"). However, the defendants'

reliance on this document is erroneous for at least three reasons.

First, Greidinger does not support the defendants' position. In

that case, the Fourth Circuit had no occasion to construe the NVRA.

Moreover, that case concerned whether the plaintiff had a strong

enough privacy interest in his SSN that the state's requirement

that he agree to disclose it to the public as a prerequisite to

voting was an unlawful infringement upon his right to vote. Not

only is that not the issue here, but the resolution of that

question does not determine whether the voter registration

applications, themselves, would be subject to disclosure in

redacted form. See discussion infra at 29-33. Second, the FEC did

not conclude that Greidinger stood for the proposition that voter

registration applications were, in their entirety, confidential,

nor did it conclude that the NVRA did not require disclosure of

those documents. To the contrary, the FEC recognized that "voter

registration documents are generally considered public documents,"

but suggested that states which require SSNs on the voter

registration form "may want to explore [the issue of keeping SSNs

confidential]" in light of Greidinger.

{FEC Guide at 7-5)

{emphasis added) .

The conclusion that voter registration

applications should be confidential does not follow from that

suggestion. Third, even if the FEC had found Greidinger to mean

that the NVRA did not allow disclosure of voter registration

applications, or otherwise concluded that voter registrations

should be kept confidential, neither the FEC's interpretation of

the NVRA or of Fourth Circuit precedent, nor the FEC's opinion

regarding the potential confidentiality of voter registration

applications is binding upon the court. {See FEC Guide at P-1.)

23

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Disabilities 1 152 F.3d at 290. Moreover 1 the court wi11 not 1 uninvited by the Constitution or Congress 1 craft or infer additional exceptions. Rosmer v. Pfizer1 272 F.3d 243 1 247 (4th Cir. 2001} . 17
In sum 1 the court finds that the common and ordinary meaning of the terms of the Public Disclosure Provision encompass voter registration applications 1 as these records concern "the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters. 11 42 U.S.C. § 1973gg-6(i} (1}.

17 Additionally 1 the court does not agree with the defendants 1 position that section gg-6(i} (2} identifies the only

records which are subject to disclosure. That section states that

"the records maintained pursuant to [the Public Disclosure

Provision] shall include lists of the names and addresses of all

persons to whom such notices [regarding removal of voters from the

voter rolls under subsection (d) (2}] and information concerning

whether or not each such person has responded to the notice

•••

11 •

42 u.s.c. § 1973gg-6 (i} (2}.

The defendants contend that

because voter registration applications are not the "type 11 of

records referred to in that section1 then they are not subject to public disclosure. However 1 there is no indication in the statute that the use of the term "shall include11 is meant to limit the term

"all records. 11 Instead 1 this language is not exhaustive and merely explains that those type of records~ among others~ are subject to

disclosure. See Nat 1 1 Fed 1 n of the Blind v. F.T.C. 1 420 F.3d 331 1 337-38 {4th Cir. 2005} (holding that the term "shall include 11 was

not exhaustive in light of the breadth of other statutory

provisions}. Moreover~ the breadth of the term "all11 used in the

Public Disclosure Provision~ as well as the significance of the

exceptions included within that provision1 confirm that section 6 (i) (2) is not an exhaustive list of the records subject to

disclosure. If the defendants 1 argument were true 1 the term "all11 would be rendered meaningless and the exceptions would be

superfluous 1 as they are not the "type11 of records listed in subsection 6(i} {2).

24

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2. Contextual Meaning To determine the plain meaning of statutory language, the court also looks to the specific context in which the language is used and to the broader context of the statute as a whole. Robinson, 519 U.S. at 337. A contextual analysis of the Public Disclosure Provision supports the conclusion that the statute refers to voter registration procedures, and, thus, voter registration records, which obviously include voter registration applications. In terms of the specific context, the defendants, despite acknowledging that the statute is concerned with states' voter registration procedures, contend that the Public Disclosure Provision "arises in the context of the procedure for removing voters from registration lists." {Mem. in Supp. of Motion at 11} (emphasis in original) . 18 However, this contention is not borne out in the statute. While there are a number of subsections in 42
u.s. c. § 1973gg that specifically address voter removal procedures,
there are also subsections discussing voter registration procedures. Subsection 1973gg-6 is itself entitled "Requirements with respect to administration of voter registration." 42 U.S.C. § 1973gg-6 {emphasis added}. Importantly, subsection 1973gg-6{i), which contains the Public Disclosure Provision, is entitled "Public
18 See supra note 14. 25

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disclosure of voter registration activities." 19 Id. § 1973gg-6{i) {emphasis added) .
Another example is subsection 1973gg-6{a) {1), which requires that states "ensure that any eligible applicant is registered to vote in an election," if the voter registration application is properly and timely submitted. Id. § 1973gg-6 {a) {1). This mandate demonstrates that whether a list of eligible voters is current and accurate directly implicates the propriety, or lack thereof, of voter registration procedures implemented by the state. Voter registration applications, therefore, directly concern the implementation of that mandate and related voter registration procedures. Moreover, the fact that there are subsections within 42 U.S.C. § 1973gg-6 dealing specifically and exclusively with voter removal procedures shows that where Congress wanted to draw specific attention to programs and activities designed to make lists of eligible voters accurate and current through voter removal procedures, it specifically did so. See id. § 1973gg-6 {a) {4) {requiring that states "conduct a general program . . . to remove the names of ineligible voters from the official lists of eligible voters . . . "); id. § 1973gg-6{c) {2) {A) {specifically referring to programs designed to "systematically remove the names of ineligible
19 While the court recognizes that a statute's title is not dispositive for interpretation purposes, it is helpful and instructive for this contextual meaning analysis. See I.N.S. v. Nat' 1 Center for Immigrants' Rights, Inc., 502 U.S. 183, 190 {1991).
26

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voters from the official lists of eligible voters"). Subsection 1973gg-6(i) is not one of those subsections where Congress paid exclusive attention to voter removal procedures.
With respect to the broader context of the statute, it is entitled "National Voter Registration." Id. § 1973gg et ~ Moreover, each of the substantive provisions in 42 U.S.C. § 1973gg, including subsection 6, discuss methods to promote increased voter registration, with some subsections providing added emphasis on voter registration programs to be conducted by the state. See, ~, id. § 1973gg-4(b) (requiring mail voter registration forms be available for distribution through governmental and private entities, "with particular emphasis on making them available for organized voter registration programs") . Additionally, like subsection gg-6 (i), many subsections include provisions which direct states not only to update voter information, but also to put programs in place to increase voter registration efforts. See, ~, id. §§ 1973gg-3 (a) (1)- (2) and (d); id. § 1973gg-4 (a) (1)- (3). There is ample support throughout the NVRA, therefore, for the conclusion that the Public Disclosure Provision is meant to cover records concerning the implementation of voter registration procedures, which by necessity include voter registration applications.
27

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3. Statutory Purpose Under a plain meaning analysis, the court will not apply a statute's plain meaning when it would frustrate the statute's purpose or lead to an absurd result. Such in not the case here. In this case, the NVRA' s statutory purpose is plainly set out within the statute: {1} [T] o establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office; {2} to make it possible for Federal, State, and local governments to implement this subchapter in a manner that enhances the participation of eligible citizens as voters in elections for Federal office; (3} to protect the integrity of the electoral process; and {4} to ensure that accurate and current voter registration rolls are maintained.
42 u.S. C. § 1973gg {b) {emphasis added} . Reading these purposes
together, it is evident that the last identified purpose of the statute is dependent upon, and is the culmination of, the fulfillment of the other purposes of the statute. Those other purposes clearly point toward increasing voter registration and ensuring that the right to vote is not disrupted by illegal and improper impediments to registering to vote or to casting a vote. Accordingly, where those purposes are met, voter rolls may be deemed accurate and current. Undoubtedly, the goals of voter registration procedures are synonymous with the purposes of the statute. The court's conclusion regarding the Public Disclosure Provision's plain meaning is certainly congruent to the statute's purposes.
28

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However, the defendants contend that making voter registration

applications available to the public would discourage voter

participation because it would involve a release of an applicant's

personal and confidential information.

Specifically, the

defendants contend that disclosure of the applicant's social

security number {"SSN''), the applicant's felony record, and whether

the applicant has been declared mentally incompetent will keep

persons from registering to vote, which is in direct conflict with

the statute's purpose. The court disagrees. As a general matter,

the statute identifies the information which Congress specifically

wished to keep confidential, and sections of the statute require

that the state inform applicants that such information will be kept

confidential and used for limited purposes. See id. § 1973gg-

3{D) {ii) and {iii) {requiring that voter registration application

forms contain a statement that informs the voter that his

declination to register and the agency through which he or she was

registered will remain confidential and will be used only for voter

registration purposes); id. § 1973gg-S(a) (7) (same); id. § 1973gg-

6 (a) (6) (same) .

Similarly, the statute explicitly requires that other

information related to voter registration, which to some persons

may be considered sensitive, be disclosed to the public. See 42
u.s.c. § 1973gg-6(i) (2) (subjecting to disclosure lists including

the "names and addresses" of persons to whom notices are sent

29

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regarding their removal from the voter rolls) . There is no indication in the statute that entire voter registration
applications should be kept confidential. Therefore, insofar as it
appears, to some degree at least, Congress has already considered
the effect on the statute's purposes of disclosing certain information to the public, as it relates to voter registration
records, and keeping other information confidential, the court is
not inclined to engage in an act of conjecture by concluding that
the public disclosure of other information relating to voter
registration would necessarily upset the purposes of the statute. 20
Nevertheless, the court does find that a person's SSN is
precluded from disclosure, as disclosure of that information would
undermine the purposes of the statute. In Greidinger v. Davis, 988
F.2d 1344 (4th Cir. 1993), the Fourth Circuit considered whether
Virginia's voter registration scheme, which required that an
applicant supply his SSN to vote and which disclosed to the public
20 The court finds the defendants' specific arguments regarding the potential public disclosure of a person's felony record or whether a person was previously adjudged incompetent, see supra at 29, unpersuasive. Such information would likely be a matter of public record, and, thus the potential for exposure by way of a voter registration application is hardly a reason to limit the scope of the Public Disclosure Provision. Otherwise, there is no showing that disclosure of such information would create a substantial burden on the voter, to the degree that the voter would forego registering to vote. Therefore, there is no need to keep voter registration applications completely confidential, and, except to the extent the court specifically requires, the Public Disclosure Provision does not require that voter registration applications be redacted. See infra at 30-33.
30

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voter registration applications bearing the applicant's SSN
infringed on the applicant's right to vote. Namely, Virginia Code
§ 24.1-56, at that time, allowed any registered voter to review the
voter registration books, which usually contained the registration application of a registered voter. 21 Greidinger, 988 F.2d at 1345.
The plaintiff, whose application was rejected because of his
refusal to provide his SSN, alleged that "to the extent Virginia
authorizes the collection and publication of SSNs for voter
registration, it unconstitutionally burdens his right to vote."
Id. at 1346. The court held that "the Virginia statutes at issue,
for all practical purposes, condition [the plaintiff's) right to
vote on the public disclosure of his SSN." Id. at 1352. Also,
after noting the potential abuses which could arise from public
disclosure of one's SSN, the court held that the Virginia statutes
created a substantial burden on the plaintiff's right to vote, and thus violated the Constitution. Id. at 1354. 22
21 The Virginia scheme also allowed voter registration applications containing SSNs to be disclosed to elected officeholders, candidates for public office, political parties, courts, and nonprofit organization promoting voter participation and registration, though for particular purposes. Va. Code § 24 .123(8}. Those disclosure statutes have been repealed.
22 Importantly, the court did not hold that the public disclosure of an applicant's voter registration application, in general, or a voter registration containing other potentially sensitive information violated the Constitution. In fact, the court specifically limited its holding as follows:
Most importantly, we note that Virginia's voter registration scheme imposes a substantial burden on [the plaintiff's) fundamental right to vote only to the extent
31

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While Greidinger did not directly involve the NVRA, the court
finds the Fourth Circuit's rationale regarding disclosure of a
voter's SSN applicable to this case, and concludes that it would
likely undermine the purposes of the statute for the NVRA to
require that voters disclose their SSNs to the public. 23 As the
Fourth Circuit recognized, SSNs are uniquely sensitive and
vulnerable to abuse, such that a potential voter would
understandably be hesitant to make such information available for
public disclosure. For that reason, a SSN disclosure requirement
potentially undermines the voter registration goals of the NVRA.
Accordingly, the court finds that the NVRA does not require such
disclosure, and any voter registration application containing an
that the scheme permits the public disclosure of his SSN. If the scheme provided for only the receipt and internal use of the SSN by Virginia, no substantial burden would exist.
Id. at 1354 n.10. Moreover, the court never suggested that Virginia must keep voter registration records confidential. Instead, the court suggested that Virginia eliminate the requirement that an applicant disclose his SSN or eliminate the use of SSN's on publicly available voter registration records. Id. at 1355. Notably, the district court's consent decree in Greidinger, following the Fourth Circuit's opinion, mandated that Virginia no longer make an applicant's SSN available for public disclosure, but it did not address whether voter applications themselves were subject to disclosure under the NVRA. See Greidinger v. Davis, No. 3:91CV00476 (E.D. Va. Aug. 30, 1993). This court sees no substantial burden if SSNs were either removed from the voter registration applications, or redacted from any voter registration applications made publicly available.
23 The court notes that the NVRA itself does not require disclosure of an applicant's SSN, nor is disclosure a prerequisite to the person's right to vote. Instead, the requirement that an applicant disclose his SSN is a standard imposed by Virginia.
32

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applicant's SSN should be redacted before public exposure of the application. The court finds such an interpretation consistent with existing precedent construing federal statutes that provide a right to information, excluding SSNs. See. e.g., Greidinger, 988 F.2d at 1354 (citing I.B.E.W. Local No. 5 v. HUD, 852 F.2d 87, 89 (3d Cir. 1988) (holding that SSNs are exempt from disclosure under FOIA)); see also E-Government Act of 2002, Pub. L. No. 107-347, § 205(c), 116 Stat. 2899, 2914 (2002) (directing the federal courts to prevent the public disclosure of personal identifiers, such as SSNs, in filed court documents) . 24
4. Summary The court concludes that 1) voter registration procedures are programs and activities which are \\conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters;" and, 2) voter registration applications are records \\concerning the implementation" of voter registration procedures. Having discerned the statute's plain meaning, the court need not consider the statute's legislative history. See Willenbring v. United States, 559 F.3d 225, 235 (4th Cir. 2009) (holding that once
24 The court's ruling is also consistent with the position taken by the Virginia Supreme Court as to a prior, but nearly identical, version of Virginia's public disclosure provision. Rivera v. Long, No. 070274 (Va. Feb. 8, 2008) (unpublished) (holding under Virginia Code§ 24.2-444(A) that voter registration applications \\must be made available . . . after redaction of the Social Security numbers"); see supra note 3 for text of Virginia's current statute.
33

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the court discerns a statute's plain meaning, "this first canon is also the last [and] judicial inquiry is complete") . 25 Accordingly, the court DENIES the defendant's Motion to Dismiss the Complaint under Rule 12(b) (6) for failure to state a claim upon which relief can be granted. IV. Conclusion
The court FINDS that Project Vote has sufficiently alleged that it has suffered an informational injury due to the defendants' refusal to grant Project Vote access to the Requested Records. Accordingly, Project Vote has standing to bring the instant cause of action and the defendants' Motion to Dismiss, pursuant to Federal Rule of Civil Procedure 12(b) (1) is DENIED. Moreover, the court FINDS that the National Voter Registration Act's Public Disclosure Provision, 42 U.S.C. § 1973gg-6(i) (1), grants Project Vote certain access to the Requested Records with, at least, the voters' SSNs redacted. Therefore, the defendant's Motion to Dismiss, pursuant to Federal Rule of Civil Procedure 12(b) (6), is DENIED.
The court DIRECTS the Clerk to send a copy of this Opinion to counsel for the parties.
25 See supra note 11. 34

Case 2:10-cv-00075-RBS -DEM Document 32 Filed 10/29/10 Page 35 of 36 PageID# 346

IT IS SO ORDERED. 26
Norfolk, Virginia October ~4, 2010

lsi
Rebecca Beach Smith lh.!ted States District Judge ~
REBECCA BEACH SMITH UNITED STATES DISTRICT JUDGE

26 An index of this Opinion is attached for reference purposes and made a part hereof.
35

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INDEX

Factual Background . . . .

II. Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b) (1) • 7 A. General Standard of Review • . • . • . . . . . . • ~ Standing Analysis . .

III. Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b) (6) • 15

A. General Standard of Review . . . . . . . . . • • • 15

. . . . Plain Meaning Analysis • . . . . . . • • . ~ Common and Ordinary Meaning .

~ Contextual Meaning • •

• • .

Statutory Purpose .

Summary

Conclusion . .

 
 Case 2:10-cv-00075-RBS -DEM Document 48 Filed 01/31/11 Page 1 of 12 PageID# 438

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

PROJECT VOTE/VOTING FOR AMERICA, INC. 737 ½ 8th St SE Washington, DC 20003
Plaintiff,
v.
ELISA LONG, In Her Official Capacity as General Registrar of Norfolk, VA City Hall Building, Room 808 810 Union Street Norfolk, VA 23510
NANCY RODRIGUES, In Her Official Capacity as Secretary, State Board of Elections, Washington Building, First Floor 1100 Bank Street Richmond, VA 23219
Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO.: 2:10cv75 ) )
)
) )
)
)
)
)
)
)
)

MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
INTRODUCTION Pursuant to Federal Rule of Civil Procedure 56, Plaintiff Project Vote/Voting For America, Inc. (“Project Vote”) brings this action for judgment on its declaratory and injunctive claims seeking access to voter registration records under the National Voter Registration Act (“NVRA”). 42 U.S.C. § 1973gg et seq. On October 29, 2010, this Court agreed with Project Vote and held that the NVRA’s Public Disclosure Provision grants Project Vote “certain access”

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to completed voter registration applications and related records, as requested in the complaint, concerning prospective registrants who were denied registration in the city of Norfolk, Virginia in advance of the November 2008 general election (collectively the “Requested Records”). Op. 34, ECF No. 32. The Court also held that Project Vote has standing to bring this suit seeking access to the Requested Records. Id.
Defendants admit that they have denied Project Vote access to the Requested Records, claiming that the NVRA does not apply to the Requested Records and that Virginia law, specifically Virginia Code § 24.2-444, forecloses Project Vote’s right to access them. Rodrigues Answer ¶¶ 12, 30. Therefore, there is no genuine dispute of material facts in this case—indeed, the parties have stipulated that no further discovery is necessary. Joint Stipulation, ECF No. 42.
Project Vote has established that Defendants have denied it access to the Requested Records, an allegation admitted by the Defendants. Long Answer ¶¶ 1, 23; Rodrigues Answer ¶ 23. Accordingly, because there is no genuine dispute of material facts, and in light of the Court’s Opinion finding the NVRA grants Project Vote a right to access the Requested Records, Project Vote is entitled to judgment as a matter of law and hereby respectfully requests that the Court grant summary judgment in its favor.
BACKGROUND AND STATEMENT OF UNDISPUTED FACTS Through its ongoing voter protection work with Advancement Project and local community organizations in Virginia, Project Vote received reports that several students at Norfolk State University (“NSU”)—a historically African-American public university located in Norfolk, Virginia—experienced difficulty as they attempted to register to vote in advance of the November 2008 primary and general elections. Compl. ¶ 14. Specifically, Project Vote learned that many applications submitted by ostensibly qualified on-campus NSU students were denied
2
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by Defendant Long’s office. Id. On May 11, 2009, Advancement Project requested by email that Defendant Long “make
available for inspection and copying the completed voter registration applications of any individual who timely submitted an application at any time from January 1, 2008, through October 31, 2008, who was not registered to vote in time for the November 4, 2008 general election,” as well as other documents, such as “documents identifying the reasons the applications were rejected.” Compl. ¶ 15; Rodrigues Answer ¶ 15. Advancement Project advised Defendant Long that the Requested Records were required to be made available for public inspection and copying pursuant to the Public Disclosure Provision, notwithstanding any Virginia law that might be interpreted to the contrary. Compl. ¶ 16; Rodrigues Answer ¶ 16.
On May 13, 2009, Defendant Long responded that she would not permit inspection or copying of the Requested Records. Compl. ¶ 17; Rodrigues Answer ¶ 17. Later that day, Martha Brissette, an attorney and policy analyst with the Virginia State Board of Elections, emailed Advancement Project stating that Defendant Long had correctly declined to permit inspection and copying of the Requested Records. Compl. ¶ 18; Rodrigues Answer ¶ 18.
Representatives from Advancement Project and Project Vote traveled on May 15, 2009, to Defendant Long’s office in Norfolk, Virginia, where they again requested access to the Requested Records and were denied the opportunity to inspect or copy those materials. Compl. ¶ 19; Long Answer ¶ 19. On June 22, 2009, Advancement Project and Project Vote, on behalf of themselves and all others similarly aggrieved, wrote to Defendant Rodrigues, pursuant to Section 11(b) of the NVRA, giving notice of the violation of the Public Disclosure Provision and requesting that Defendant Rodrigues undertake appropriate remedial measures. Compl. ¶ 20; Rodrigues Answer ¶ 20. Specifically, Plaintiff and Advancement Project requested the State
3
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Board of Elections to issue a written directive to all General Registrars and state election officials advising them of their obligation under the NVRA to permit inspection and copying, upon request, of “all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters,” including copies of completed voter registration applications. Id.
On July 22, 2009, Brissette informed Plaintiff and Advancement Project by email that the State Board of Elections, at its July 10, 2009 meeting, had voted to request an informal opinion of the Attorney General of Virginia regarding this matter. Compl. ¶ 21; Rodrigues Answer ¶ 21. On September 25, 2009, Brisette forwarded to Plaintiff and Advancement Project the Attorney General’s informal opinion that concluded that “the completed voter registration application of any individual is not a part of the record of the implementation of programs and activities conducted for the purposes of ensuring the accuracy and currency of official lists of eligible voters covered by [the Public Disclosure Provision].” Compl. ¶ 22; Rodrigues Answer ¶ 22.
To date, Defendants have not made the Requested Records available to Project Vote or its representatives, Compl. ¶ 23, Rodrigues Answer ¶ 23, Long Answer ¶ 23, asserting that only records related to specific programs designed to remove registered voters from the voting rolls fall within the Public Disclosure Provision. Compl. ¶ 30; Rodrigues Answer ¶ 30.
Project Vote initiated this suit to vindicate its rights under the NVRA for Defendants’ continued refusal to make the Requested Records available to Project Vote and its representatives. Defendants moved to dismiss the case on March 26, 2010, claiming that Project Vote lacked standing and failed to state a claim upon which relief could be granted. Defs.’ Mot. to Dismiss, ECF No. 8. This court denied both motions in an opinion dated October 29, 2010, and concluded that completed voter registration applications fall within the purview of the Public
4
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Disclosure Provision. Op., ECF No. 32. For the reasons discussed in greater detail below, because the Public Disclosure Provision
mandates that Defendants make available all records concerning the implementation of programs and activities conducted for the purposes of ensuring the accuracy and currency of official lists of eligible voters, and because the Requested Records fall within the Public Disclosure Provision’s classification, the Court should order Defendants to make the Requested Records available to Project Vote should grant summary judgment in Project Vote’s favor.
ARGUMENT Pursuant to Fed. R. Civ. P. 56, a court should award summary judgment to the moving party “if the record shows ‘there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.’” Norfolk S. Ry. Co. v. City of Alexandria, 608 F.3d 150, 156 (4th Cir. 2010). As stated above, the record shows that there is no genuine dispute as to any material fact. The Court’s prior opinion establishes that Project Vote is entitled to judgment as a matter of law because the Public Disclosure Provision requires that the Requested Records be made available for inspection and copying. For these reasons, Project Vote is entitled to summary judgment in its favor on all claims. I. Project Vote is Entitled to Summary Judgment
a. The Plain Language of the NVRA’s Public Disclosure Provision Requires that the Requested Records be Made Available for Inspection and Copying
In opposing the Defendants’ motion to dismiss, Project Vote argued that the Public Disclosure Provision’s plain language is unambiguous and requires that completed voter registration applications be made publicly available because such applications are records concerning the implementation of a program or activity conducted for the purpose of ensuring that official lists of eligible voters are accurate and current. Pl.’s Opp’n to Def. Mot. to Dismiss
5
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14, ECF No. 19. The first step in statutory interpretation is “to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” Id. at 15 (quoting Willenbring v. United States, 559 F.3d 225, 235 (4th Cir. 2009) (internal quotations omitted)). When the plain meaning of a statute is unambiguous, “this first canon is also the last [and] judicial inquiry is complete.” Id. (quoting Willenbring v. United States, 559 F.3d at 235). In construing the Public Disclosure Provision’s plain language, its terms should be afforded their “ordinary, contemporary, common meaning” unless Congress intended those terms to have a different meaning. Id. (quoting Stephens ex rel. R.E. v. Astrue, 565 F.3d 131, 137 (4th Cir. 2009)).
b. The Common and Ordinary Meaning of the Public Disclosure Provision Grants Project Vote Access to the Requested Records
In ruling on the Defendants’ motion to dismiss this case under Fed. R. Civ. P. 12(b)(6) for failure to state a claim, this Court analyzed the Public Disclosure Provision’s common and ordinary meaning. Op. 18-24. The Court ultimately concluded that, under such an analysis, it was clear that the Public Disclosure Provision encompasses voter registration applications because they are records that concern “‘the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters.’” Id. at 24 (citing 42 U.S.C. § 1973gg-6(i)(1)).
The Court first considered what constitutes a program or activity conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters, determining that “a program or activity covered by the Public Disclosure Provision is one conducted to ensure that the state is keeping a ‘most recent’ and errorless account of which persons are qualified or entitled to vote within the state.” Id. at 19. The Court next concluded that Virginia’s process for determining “whether a person is eligible to vote certainly falls within the purview of the federal
6
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statute, as such a process, by its very nature, is designed to ensure that the Commonwealth’s lists are current and accurate.” Id. Accordingly, the “process of evaluating voter registration applications . . . is a central part of ‘ensuring the accuracy and currency of the official lists of eligible voters.’” Id. at 19-20 (quoting 42 U.S.C. § 1973gg-6(i)(1)).
The Court then analyzed whether voter registration records, specifically voter registration applications, concern the implementation of programs or activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters. Id. at 20. The Court determined that the common and ordinary understanding of “records concerning the implementation of voter registration procedures” encompasses voter registration applications. Id. at 21-22. Voter registration applications are, in fact, highly relevant to voter registration procedures. Id. at 22 (“A completed voter registration application is the means by which an individual provides the information necessary for the Commonwealth to determine his eligibility to vote. It is clear, then, that voter registration applications, perhaps more than other records, are relevant to carrying out voter registration procedures.”).
Turning to the exceptions clause of the Public Disclosure Provision, the Court found that “the exceptions to the Public Disclosure Provision provide evidence that it contemplates and covers voter registration procedures, as the exceptions directly address records concerning such procedures.” Id. at 20-21. The Court reasoned that the NVRA specifically identified two exceptions to the broad “all records” language of the Public Disclosure Provision, id. at 21, and concluded that voter registration applications do not fall within either exception. Id. at 22-23. Project Vote argued that the Defendants’ interpretation of the Public Disclosure Provision, which limited its reach only to records “that prove the [S]tates are properly maintaining lists of registered voters,” would render the exceptions clause nonsensical and meaningless. Pl.’s Opp’n
7
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17 (citing Def. Mot. at 13). The Court agreed with Project Vote’s position, concluding that “if defendants’ contention were true, the inclusion of those exceptions would be superfluous because it would mean that the exceptions refer to records that were never within the purview of the Public Disclosure Provision in the first place.” Op. 21.
c. Contextual Analysis and Statutory Purpose of the NVRA Support the Conclusion that the Requested Records Should be Made Available to Project Vote
Project Vote also argued that both the applicable statutory titles and the NVRA’s purpose confirmed that Defendants’ narrow interpretation of the Public Disclosure Provision is incorrect. Pl.’s Opp’n 21. Project Vote specifically pointed to the NVRA’s titles, section titles, and subsection titles, all of which indicate that the meaning of “all records” includes completed voter registration applications as opposed to merely records related to removal of voters from the rolls. Id. Further, Project Vote drew the Court’s attention to the NRVA’s legislative purpose and Congressional findings that support the conclusion that completed voter registration applications must be disclosed publicly. Id. at 22.
The Court agreed that such an analysis further supports that the statute refers to registration procedures and covers voter registration records (including voter registration applications). The Court noted that the statute is entitled “National Voter Registration” and that many of the substantive provisions discuss methods of promoting increased voter registration, including provisions directing states to implement programs to increase voter registration efforts. Op. 27. The Court thus concluded that “[t]here is ample support throughout the NVRA . . . for the conclusion that the Public Disclosure Provision is meant to cover records concerning the implementation of voter registration procedures, which by necessity include voter registration applications.” Id.
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The Court rejected the Defendants’ contention that the Public Disclosure Provision was exclusively applicable to procedures designed to remove voters from voter registration lists and that, accordingly, voter registration applications do not fall within the Provision’s purview. Id. at 25. Drawing particular attention to subsection 1973gg-6(a)(1), requiring states to ensure that eligible applicants who properly and timely submit a registration are registered to vote in an election, the Court concluded that “whether a list of eligible voters is current and accurate directly implicates the propriety, or lack thereof, of voter registration procedures implemented by the state,” and that “[v]oter registration applications, therefore, directly concern the implementation of that mandate and related voter registration procedures.” Id. at 26.
The Court next considered the NVRA’s statutory purpose to determine whether the Court’s plain meaning analysis would frustrate the statute’s purpose or lead to an absurd result. The Court found that reading the NVRA’s enumerated statutory purposes compels the conclusion that the Public Disclosure Provision’s plain meaning—including the Court’s classification of voter registration applications within its purview—is congruent to the statute’s purposes. Id. at 28. II. The Requested Records Should Made Available for Inspection and Copying with
Only the Individuals’ Social Security Numbers Redacted The Defendants contend that concerns regarding public disclosure of certain items of information required to be entered on voter registration applications—specifically, an applicant’s social security number (“SSN”), an applicant’s felony record, and whether an applicant has been declared mentally incompetent—will deter persons from registering to vote. Defs.’ Mem. in Supp. of Mot. to Dismiss 19, ECF No. 9. This deterrent effect, argue the Defendants, would undermine the NVRA’s purposes. Id.
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Project Vote shares Defendants’ concerns regarding the disclosure of an applicant’s SSN and has never sought to obtain voter registration applications without appropriate redactions applied to applicants’ SSNs. Likewise, the Court found that disclosure of an applicant’s SSN would undermine the purposes of the NVRA, and “any voter registration application containing an applicant’s SSN should be redacted before public exposure of the application.” Op. 30, 32-33.
However, as articulated by this Court, an applicant’s felony record and a declaration of mental incompetency do not trigger the same concerns. The Court rightly noted that the NVRA specifically identifies information related to voter registration which Congress wished to keep confidential, as well as other information related to voter registration that the NVRA requires to be disclosed to the public. Id. at 29 (citing various subsections of the NVRA). Concluding that Congress specified which items of information should be protected, the Court noted that “[t]here is no indication in the statute that entire voter registration applications should be kept confidential,” and the Court refused to find that “the public disclosure of other information relating to voter registration would necessarily upset the purposes of the statute.” Id. at 30. Regarding felony records and incompetency determinations specifically, the Court determined that such information is likely to be a matter of public record and potential exposure by way of a voter registration application does not suffice to limit the scope of the Public Disclosure Provision. Id. at 30 n.20. Further, the Court found no showing that disclosure of such information would substantially burden a voter to the degree that the voter would forego registering to vote. Id.
Accordingly, as Project Vote has established that completed voter registration applications and related records are covered by the NVRA’s Public Disclosure Provision, and because Project Vote is statutorily entitled to inspect and copy the records, the Court should
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order the Defendants to make available to Project Vote the Requested Records with SSNs redacted for inspection and copying. Per the Court’s opinion, no other information needs to be redacted.
CONCLUSION For the foregoing reasons, there is no genuine dispute of material facts, Project Vote is entitled to judgment as a matter of law, and the Court should therefore grant Plaintiff’s motion for summary judgment.
Respectfully submitted, _________/s/__________________ Ryan M. Malone (VA Bar # 48526) Jason G. Idilbi (VA Bar #76869) Augustine M. Ripa (VA Bar #77244) David O. Stewart (admitted pro hac vice) Douglas H. Hallward-Driemeier (admitted pro hac vice) ROPES & GRAY LLP 700 12th Street NW, Suite 900 East Washington D.C. 2005 TEL: 202-508-4669 FAX: 202-383-8322 Ryan.Malone@ropesgray.com Counsel for Plaintiff Project Vote/Voting for America, Inc.
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Case 2:10-cv-00075-RBS -DEM Document 48 Filed 01/31/11 Page 12 of 12 PageID# 449 CERTIFICATE OF SERVICE
I hereby certify that on the 31st day of January, 2011, I electronically filed the foregoing pleading with the Clerk of Court using the CM/ECF system, which will send a notification of such filing to all counsel of record.
_/s/___________________________ Ryan M. Malone
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 Case 2:10-cv-00075-RBS -DEM Document 52 Filed 03/02/11 Page 1 of 14 PageID# 477

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

PROJECT VOTE/VOTING FOR AMERICA,

Plaintiff,

v.

Case No. 2:10CV75

ELISA LONG and NANCY RODRIGUES,

Defendants.

DEFENDANT ELISA LONG'S OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

Defendant, Elisa Long, Registrar of the City of Norfolk, by counsel, hereby

opposes plaintiffs Motion for Summary Judgment.

Plaintiff Project Vote, relying on the Court's decision on defendants' Motion to

Dismiss, maintains that the NVRA's Public Disclosure Provision, 42 U.S.C. §§ 1973gg-

6(i), mandates Long's disclosure of original voter registration applications as "records

concerning the implementation of programs and activities conducted for the purpose of

ensuring the accuracy and currency of official lists of eligible voters." The Court should

deny plaintiffs motion where (1) plaintiff fails to analyze the plain and contextual

meanings of the terms "programs and activities," which, as employed by Congress, relate

directly to the NVRA's purpose "to ensure that accurate and current voter registration

rolls are maintained;" (2) two recent federal statutes, the Help America Vote Act and the

MOVE Act, support Congressional intent to protect the personal information on voter

registration applications; and (3) disclosure would chill voter registration, running

counter to Congressional intent.

Case 2:10-cv-00075-RBS -DEM Document 52 Filed 03/02/11 Page 2 of 14 PageID# 478
For these reasons, addressed below, Long requests that the Court deny plaintiff's motion and grant summary judgment in defendants' favor pursuant to Fed. R. Civ. P. 56( f).
I. STATEMENT OF FACTS There are no material facts in dispute.
II. LEGALSTANDARD
Summary judgment is appropriate in the absence of any genuine issue of material fact and where the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Anderson v. Liberty Lobby Inc., 477 U.S. 242,255 (1986).
III. ARGUMENT A. Analyzing the Plain and Contextual Meanings of "Programs and
Activities" Compels Non-Disclosure of the Voter Registration Applications In ruling on defendants' Motion to Dismiss, the Court looked to the statute's plain and contextual meanings, stating, "[a] statute's plain meaning is defined by the statutory language's common and ordinary meaning, absent an indication from Congress that the language should have a different meaning ... and by both the specific context in which the language is used and in the broader context of the statute as a whole." Op., p. 17 (citing Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)). A review of both the plain and contextual meaning of the Public Disclosure Provision reveals that Congress did not intend to mandate disclosure of voter registration applications, which are state records subject to state disclosure laws. The Public Disclosure Provision, 42 U.S.C. §§ 1973gg-6(i), provides that:
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(1) Each state shall maintain for at least 2 years and shall make available for public inspection and, when available, photocopying at a reasonable cost, all records concerning the implementation of programs and activities conductedfor the purpose ofensuring the accuracy and currency ofofficial lists ofeligible voters except to the extent that such records relate to a declination to register to vote or to the identity of a voter registration agency through which any particular voter is registered.
(2) The records maintained pursuant to paragraph (1) shall include lists of the names and addresses of all persons to whom notices described in subsection (d)(2) are sent, and information concerning whether or not each such person has responded to the notice as of the date that inspection of the records is made.
(Emphasis added). In analyzing subsection (1 )'s plain meamng, the Court defined the terms
"eligible," "current," and "accurate." Relying on those definitions, the Court found that
"a program or activity covered by the Public Disclosure Provision is one conducted to ensure that the state is keeping a 'most recent' and errorless account of which persons are
qualified or entitled to vote within the state." Op., p. 19. The Court stated further that, "'official lists of eligible voters' would be inaccurate and obsolete if eligible voters were improperly denied registration." Op., pp. 19-20. Then defining the terms "concern" and
"implementation," the Court concluded that, "records which relate to carrying out voter
registration procedures are subject to the Public Disclosure Provision's requirements."
Op., p. 22. In reaching its conclusion, the Court failed to define the plain meaning of the
operative phrase "programs and activities," or to review the use of those terms in context.
Analysis of these terms reveals that Congress intended the Public Disclosure Provision to
have a specific meaning related directly to its mandate that states "ensure that accurate
and current voter registration rolls are maintained." 42 U.S.C. § 1973gg(b)(4).
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Webster's Third New International Dictionary defines "program" to mean "a plan or system under which action may be taken toward a goal," and "activity'' as "an active force." The "programs and activities" referred to in the Public Disclosure Provision are the "plans," "systems," or "forces" instituted by the states under the Congressional mandate to maintain the accuracy and currency of the eligible voter lists.
The NVRA sets forth four Congressional purposes: (1)"to establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office;" (2) "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; (3) to protect the integrity of the election process; and (4) "to ensure that accurate and current voter registration rolls are maintained." 42 U.S.C. § 1973gg(b)(l)- (4). Section 1973gg-6 contains the specific provisions outlining for the states the statutory scheme to promote the dual purposes of voter registration and list maintenance. As demonstrated below, Congress used the terms "program" and "activities" in those subsections of §1973gg-6 that correlate directly with the statute's list maintenance purpose set forth in§ 1973gg(b)(4).
Sections 1973gg-6(a)(l), (2) and (3) address registration and establish the means to increase voter registration. Section 6(a)(l) comprises the motor-voter mandate, allows for mail registration, and addresses voter registration agencies. Section 1973gg-6(a)(2) requires notices to applicants about the disposition of their application. Section 1973gg6(a)(3) provides that: "each State shall- provide that the name of a registrant may not be removed from the official list of eligible voters except - (A) at the request of the registrant; (B) as provided by State law, by reason of criminal conviction or mental
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incapacity;

or

(C)

as

provided

under

paragraph

(4)."

In turn, § 1973gg-6(a)(4) details the means by which states may remove voters

from their official lists of eligible voters. This section provides that: "each State shall --

conduct a general program that makes a reasonable effort to remove the names of

ineligible voters from the official lists of eligible voters" by reason of death or "a change

in the residence of the registrant, in accordance with subsections (b), (c), and (d)." 42

U.S.C. § 1973gg-6(a)(4).

Section 1973gg-6(b) then mandates that: "[a]ny State program or activity to

protect the integrity of the electoral process by ensuring the maintenance of an accurate

and current voter registration roll for elections for Federal office- (1) shall be uniform,

nondiscriminatory, and in compliance with the Voting Rights Act of 1965; and (2) shall

not result in the removal of the name of any person from the official list of voters

registered to vote in an election for Federal office by reason of the person's failure to

vote," except that the states may use the procedures described in subsections (c) and (d) to remove individuals from the lists. 42 U.S.C. § 1973gg-6(b) (emphasis added). 1

Section 1973gg-6(c) addresses "Voter removal programs." (Emphasis added).

Subsection 1973gg-6(c)(l) provides that a state may meet the program requirement of§

6(a)(4) "by establishing a program" using information supplied by the Postal Service

(emphasis added). Subsection 1973gg-6(c)(2) requires states to complete, not later than

90 days prior to a federal election, "any program the purpose of which is to

1 The House Report for this law states that the above procedure "attempts to incorporate an underlying purpose of [the NVRA]; that once registered, a voter should remain on the list of voters so long as the individual remains eligible to vote in that jurisdiction." See H.R. Report No. 103-9, at 16, reprinted in 1993 U.S.C.C.A.N. 105, at 122.
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systematically remove the name of ineligible voters from the official lists of eligible voters." (Emphasis added).2
The Public Disclosure Provision, § 1973gg-6(i), which follows the above-cited sections, references the programs and activities intended by Congress in §§ 6(a)(4), (b), and (c), to ensure that the states maintain the voter lists in accordance with the statute. Thus, § 1973gg-6(i) requires the states to disclose "all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters...." (Emphasis added). By ignoring the plain meaning of the phrase "programs and activities," and its contextual meaning in the overall statutory scheme, the Court ascribes to Congress an overreaching intent to require the states to disclose all documents related to voter registration and to list maintenance, rather than those related to list maintenance.
Virginia's list maintenance "programs and activities" under the NVRA exemplifY the statute's disclosure requirement. Virginia chose to comply with § 1973gg-6(c)(l), allowing a state to meet the general program requirement of§ 6(a)(4) "by establishing a program" using information supplied by the U.S. Postal Service called the National Change of Address ("NCOA") program. The NCOA program matches the active voter registration rolls against the Postal Service National Change of Address Registry to identify registered voters who have moved and failed to notifY the local general registrar of their change of address.3 See Exhibit 1, Declaration of Garry E. Ellis, ~ 3.
2 Subsections 1973gg-6(d), (e), (f), and (g) address particular circumstances of removal, e.g., the specific procedure when a voter has changed residences, moved within the same jurisdiction, or been convicted in federal court. Subsection (h) was omitted by Congress. 3 Once the match is performed, a notice is generated for those registered voters identified as having moved. The notice is mailed to the voter, and lists the address at which the
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Virginia also has a program that complies with § 1973gg-6(b)(2), under which
voter registration records are cancelled for individuals whose registration record has been
moved to an inactive status for failing to respond to the NCOA Address Confirmation
Notice mailed, and not updating their voter registration record in writing within two (2)
General Elections for Federal Office. This program is performed after each General
Election for Federal Office. See Exhibit 1, Declaration of Garry E. Ellis, ,-r 4.
B. Contextual Review of the Public Disclosure Provision's Exceptions, Repeating Limitations on Disclosure Elsewhere in the Statute, Does Not Support Disclosure of the Voter Registration Applications
The exceptions set forth in the Public Disclosure Provision do not support disclosure of the voter registration applications. Section 1973gg-6(i) excepts from
disclosure two types of records: those relating "to a declination to register to vote" or
relating "to the identity of a voter registration agency through which any particular voter is registered." Plaintiff relies on the Court's conclusion that because these records "relate to voter registration procedures," they demonstrate "that the Public Disclosure Provision necessarily contemplates records relating to voter registration procedures. Op., p. 21.
A contextual review of these exceptions dictates otherwise. The two restrictions on disclosure repeat restrictions set forth in related provisions of the statute. Their
significance is not that they relate to voter registration procedures, but that Congress
voter is currently registered along with the address provided by the USPS. The voter checks the appropriate address and mails the notice using the pre-paid envelope provided. Should the voter fail to return the notice within thirty (30) days, or if the notice is returned by USPS as undeliverable, that voter record is moved to an inactive status. The inactive status does not prevent the individual from voting, but requires the individual to affirm their resident address prior to voting. Depending on when and where the individual moved the voter may or may not be allowed to vote. The individual can stay inactive for up to two (2) General Elections for Federal office. This program comports with the VHRA's requirements. 42 U.S.C. § 1973gg-6(b)(4). See Exhibit 1,
Declaration of Garry E. Ellis, ,-r 5.
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intended to ensure that records restricted elsewhere would not be subject to disclosure pursuant to this provision.
Sections 1973gg-5 and 7 outline the specific restrictions reiterated in the Public Disclosure Provision. Section 1973gg-5, addressing Voter Registration Agencies, provides that: "No information relating to a declination to register to vote in connection with an application made at an office described in paragraph (6) may be used for any purpose other than voter registration." Section 1973gg-7 details the contents of mail voter registration forms, which must include, inter alia, "(ii) a statement that, if an applicant declines to register to vote, the fact that the applicant has declined to register will remain confidential and will be used only for voter registration purposes; and (iii) a statement that if an applicant does register to vote, the office at which the applicant submits a voter registration application will remain confidential and will be used only for voter registration purposes." 42 U.S.C. § 1973gg-7(b)(4)(ii) and (iii).
The inclusion of these two exceptions in the Public Disclosure Provision is intentional. Congress included these exceptions to ensure that specific confidential information clearly restricted from public disclosure elsewhere in the statute remained restricted. In other words, that there would be no doubt that records related to declinations to register to vote and to the identification of voter registration agencies would not be included as part of the records "concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters." 42 U.S.C. § 1973gg-6(i)(l ).
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C. The "Shall Include" Language in Subsection (2) of the Public Disclosure Section Acts as a Limitation on Subsection (1); Otherwise Subsection (2) Becomes a Nullity
Plaintiff also relies on the Court's conclusion that § 1973gg-6(i)(2), the second part of the Public Disclosure Provision, does not limit the records subject to disclosure. Section § 1973-6(i)(2) specifies that:
(2) The records maintained pursuant to paragraph (1) shall include lists of the names and addresses of all persons to whom notices described in subsection (d)(2) are sent, and information concerning whether or not each such person has responded to the notice as of the date that inspection of the records is made.
In the context of this statute, the term "shall include" acts as a limitation, not an enlargement. See Blankenship v. Western Union Tel. Co., 161 F.2d 168, 169 (4111 Cir. 1947) (interpreting the use of "includes" "as a term oflimitation indicating what belongs to a genus, rather than as a term of enlargement" (emphasis added)); see also Montello Salt. Co. v. Utah, 221 U.S. 452, 466 (1911) (rejecting conclusion that use of the word "including" is "a word of enlargement" in "its ordinary sense," finding that it is used that way only in "its exceptional sense").
As addressed above, the statutory scheme limits the records subject to disclosure m § 1973gg-6(i)(l) to records related to programs and activities associated with list maintenance. In § 1973gg-§ 6(i)(2), Congress ensured that those records include "lists of the names and addresses of all persons to whom notices described in subsection (d)(2) are sent" and "information concerning whether or not each such person has responded to the notice as of the date that inspection of the records is made."4
4 A § 1973gg-(d)(2) notice "is a postage prepaid and pre-addressed return card, sent by forwardable mail, on which the registrant may state his or her current address, together with a notice" regarding return of the card with a change or no change of residence
9

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At the hearing on the Motion to Dismiss, the Court stated that rather than seeing 1973gg-6(i)(2) as a "ceiling," the Court viewed it as a "floor." July 30, 2010 Tr., p. 32. That interpretation would render subsection § 1973gg-6(i)(2) as having no limitation at all, effectively nullifying § 1973gg-6(i)(2), because only the broad language in § 1973gg(6)(i)(1) would have any force. The Fourth Circuit's rules of statutory construction do not permit a court to interpret a statute in a manner that nullifies part of it. A court must "begin with the premise that all parts of the statute must be read together, neither taking specific words out of context . . . nor interpreting one part so as to render another meaningless." United States v. Snider, 502 F.2d 645,652 (4th Cir 1974)(citingHelvering v. Morgan's, Inc., 293 U.S. 121, (1934)); see also United States v. Shelton, 465 F.2d 361, 362 (4th Cir. 1972)("such interpretation would serve to render this section of the statute totally ineffective. We decline to attribute any such intent to Congress," citing United States v. Thomas, 455 F.2d 320, 322-3 (6th Cir. 1972)).
In § 6(i)(2) Congress sought to ensure that records pertaining to the notices required before voters are removed from the lists, part of the mandated list maintenance program, are among those subject to disclosure. The records specifically identified by Congress in § 1973gg-(6)(i)(2) are those included in "all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters" in 42 U.S.C. § 1973gg-6(i)(1 ).
information and continued eligibility to vote. Reference to the§ 1973gg-(d)(2) notices in § 1973gg-6(i)(2) relates directly to the Congressional purpose set forth in 42 U.S.C. § 1973gg(b)(4), "to ensure that accurate and current voter registration rolls are maintained." Under§ 1973gg-(d)(3), "[a] voting registrar shall correct an official list of eligible voters in elections for Federal office in accordance with change of residence information obtained in conformance with"§ 1973gg-(d)(2).
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D. Congressional Intent to Protect Personal Information on Voter Registration Applications is Exhibited in Related Federal Voting Statutes
Long relies on and incorporates by reference Sections A (1), (2) and (3) of defendant Donald Palmer's Opposition to Plaintiffs Motion for Summary Judgment in support of this argument.
E. Disclosure of the Voter Registration Applications Would Chill Voter Registration and Hinder Congressional Intent in the NVRA
Long relies on and incorporates by reference Section B of defendant Donald Palmer's Opposition to Plaintiffs Motion for Summary Judgment in support of this argument.
IV. CONCLUSION Congress did not intend to usurp the individual states' election processes or to require complete disclosure of state election records, which are regulated by state law. Voter registration applications are state records, not subject to federal FOIA. 5 U.S.C. § 552, et seq. Interpreting the Public Disclosure Provision to mandate disclosure of all state records related to voter registration extends the NVRA well beyond the intent of Congress. The statutory scheme is clear. Congress intended that the states maintain accurate and current lists of eligible voters for federal elections. 42 U.S.C. § 1973gg-6(b)(4). Congress required the states to establish programs and activities to maintain those lists. 42 U.S.C. §§ 1973gg-(6)(a)(4), (b), and (c). Congress required that records related to those programs and activities be open to the public, 42 U.S.C. § 1973gg-6(i)(l), but also set forth two distinct restrictions to disclosure, repeating restrictions set forth elsewhere in the statute. 42 U.S.C. §§ 1973gg-5 and 7. Finally, Congress ensured that the records
11

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related to list maintenance that are subject to disclosure, include those related to the 42 U.S.C. § 1973gg-6(d)(2) notices, required to be sent out prior to removing voters from the lists. 42 U.S.C. § 1973gg-6(i)(2). Nothing in the plain meaning of the Public Disclosure Provision or its contextual meaning within the statutory scheme suggests that Congress intended to require the disclosure of state voter registration applications.
For these reasons and those set forth in defendant Donald Palmer's Opposition to Plaintiff's Motion for Summary Judgment, defendant Elisa Long respectfully requests this Court to deny plaintiff's Motion for Summary Judgment and to enter judgment for defendants under Fed. R. Civ. P. 56(f), which allows the Court to grant summary judgment for a non-movant.
ELISA LONG Defendant By:_ _ _ _ _ _/s/ JeffW. Rosen
Of Counsel
JeffW. Rosen, Esquire Virginia Bar No. 22689 Attorneyfor Elisa Long Pender & Coward 222 Central Park Avenue Virginia Beach, Virginia 23462 Phone: (757) 490-6253 Fax: (757) 497-1914 Email: jrosen@pendercoward.com
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Lisa Ehrich, Esquire Virginia Bar No. 32205 Attorneyfor Elisa Long Pender & Coward 222 Central Park Avenue Virginia Beach, Virginia 23462 Phone: (757) 490-6248 Fax: (757) 497-1914 Email: lehrich@pendercoward.com
CERTIFICATE OF SERVICE
I hereby certify that on the 2nd day of March, 2011, I electronically filed the foregoing with the clerk of Court using the CM/ECF system, which will then send a notification of such filing (NEF) to the following:
Augustin Marin Ripa Ropes & Gray, LLP 700 1th Street NW; Suite 900 Washington, DC 20005 Augustine.ripa@ropesgray.com
Jason Gassan Idilbi Ropes & Gray, LLP 700 1ih Street NW; Suite 900 Washington, DC 20005 Jason.idilbi@gopesgray.com
Ryan Morland Malone Ropes & Gray, LLP 700 l21h Street NW; Suite 900 Washington, DC 20005 Ryan.malone@ropesgray.com Attorneysfor Plaintiff
Stephen M. Hall, Esq. Assistant Attorney General III Office of the Attorney General 900 East Main Street Richmond, Virginia 23219 Shall@oag.state. va. us Attorneyfor Defendant Donald Palmer
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Is/

JeffW. Rosen

JeffW. Rosen, Esq.

Virginia Bar No. 22689

Attorneyfor Elisa Long

Pender & Coward

222 Central Park Avenue

Virginia Beach, Virginia 23462

Phone: (757) 490-6253

Fax: (757) 497-1914

Email: jrosen@pendercoward.com

P: \DOCS\06750\48273\DT1331. DOC

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Case 2:10-cv-00075-RBS -DEM Document 52-1 Filed 03/02/11 Page 1 of 3 PageID# 491 EXHIBIT

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

PROJECT VOTENOTING FOR AMERICA,

Plaintiff,

v.

Case No. 2:10-CV-75

ELISA LONG, General Registrar for the City of Norfolk, Virginia, and DONALD PALMER, Secretary of the Virginia State Board of Elections

Defendants.

DECLARATION OF GARRY E. ELLIS

I, GARRY E. ELLIS, state as follows under penalty of perjury and in support of the

Opposition to Summary Judgment being filed by Defendant Elisa Long in this action:

1. I reside in the Commonwealth of Virginia and am over 18 years of age. I make this

Declaration based upon personal knowledge and/or review of records kept in the regular and

ordinary course ofbusiness, and based upon my work as the National Voting Rights Act of2003

("NVRA" or "Act") coordinator for the Virginia State Board of Elections ("SBE").

2. Since January 2004, I have worked as the NVRA coordinator for the SBE. In this

position, I am responsible for ensuring compliance with the requirements of the NVRA. This

includes providing training and supplies to Local General Registrars, designated state agencies,

third party/private voter registration groups, and coordinating National Change of Address

("NCOA") Address Confirmation Program, and the NVRA List Maintenance Program.

3. Virginia's list maintenance "programs and activities" under the NVRA demonstrate

the Act's disclosure requirement. Virginia chose to comply with 42.U.S.C. § 1973gg-6(c)(l),

dealing with state programs for removing voters from voting rolls, by establishing a "program"

Case 2:10-cv-00075-RBS -DEM Document 52-1 Filed 03/02/11 Page 2 of 3 PageID# 492
using information supplied by the U.S. Postal Service called the National Change of Address ("NCOA") program. The NCOA program matches the active voter registration rolls against the Postal Service National Change of Address Registry to identify registered voters who have moved and failed to notify the local general registrar of their change of address.
4. Virginia's NVRA List Maintenance Program complies with 42 U.S.C. § 1973gg6(b)(2), under which voter registration records are cancelled, for individuals whose registration record has been moved to inactive status for either (1) failing to respond to the NCOA Address Confirmation Notice mailed, or (2) not updating their voter registration record in writing within two General Elections for Federal Office. This program is performed after each General Election for Federal Office. This program generates a list of all voters whose voter record was cancelled for failing to respond to the NCOA Notice, or for failing to update their voter registration record as required by NVRA. That list is available for public inspection, along with guidance documents provided to local registrars. A sample copy of a portion of such a list is attached as Exhibit A. A copy of an NCOA Address Confirmation Notice is also attached as Exhibit B. A copy of the guidance document provided to local registrars for this NVRA List Maintenance Program is attached as Exhibit C.
5. Once the name and address match is performed, a notice is generated for those registered voters identified as having moved. The notice is mailed to the voter, and lists the address at which the voter is currently registered along with the address provided by the U.S. Postal Service. The voter checks the appropriate address and mails the notice using the pre-paid envelope provided. Should the voter fail to return the notice within thirty (30) days, or if the notice is returned by the Postal Service as undeliverable, that voter record is moved to an inactive status. The inactive status does not prevent the individual from voting, but requires the
2

Case 2:10-cv-00075-RBS -DEM Document 52-1 Filed 03/02/11 Page 3 of 3 PageID# 493

individual to affirm their resident address prior to voting. Depending on when and

where the individual moved, the voter may or may not be allowed to vote. The

individual can stay inactive for up to two General Elections for Federal office. This

program, called the NCOA Address Confirmation Program, comports with the

NVRA's requirements under 42 U.S.C. § I973gg-6(b)(4). That program generates

two lists: NCOA Confirmation Notices Not Sent; and NCOA Confirmation Notes

Sent. These list voter names and addresses of voters that were sent or not sent a

notice. Of these two lists, one, a partial sample of which is attached hereto as Exhibit

D, is available for public inspection, along with guidance documents provided to local

registrars for the NCOA Address Confirmation Program. A copy of the guidance

document provided to local registrars for this program is attached as Exhibit E.

Declared and signed under penalty of perjury under 28 U.S.C. § 1746 this 2nd

day ofMarch, 201 I.

1:\GA~E.~ ELLIS~

 
 Case 2:10-cv-00075-RBS -DEM Document 54 Filed 03/16/11 Page 1 of 16 PageID# 526

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

PROJECT VOTE/VOTING FOR AMERICA, INC. 737 ½ 8th St SE Washington, DC 20003
Plaintiff,
v.
ELISA LONG, In Her Official Capacity as General Registrar of Norfolk, VA City Hall Building, Room 808 810 Union Street Norfolk, VA 23510
DONALD PALMER, In His Official Capacity as Secretary, State Board of Elections, Washington Building, First Floor 1100 Bank Street Richmond, VA 23219
Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO.: 2:10cv75 ) )
)
) )
)
)
)
)
)
)
)

PROJECT VOTE’S REPLY TO DEFENDANTS’ OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
In its Motion for Summary Judgment, Plaintiff Project Vote/Voting for America, Inc. (“Project Vote”) requested that the Court compel Defendants Elisa Long and Nancy Rodrigues to make available for inspection and copying records withheld in violation of the public disclosure provision of the National Voter Registration Act (“NVRA”), 42 U.S.C. § 1973gg-6(i) (the “Public Disclosure Provision”). In their opposition to Project Vote’s motion, Defendants claim for the first time that two federal statutes, the Military and Overseas Voter Empowerment Act

Case 2:10-cv-00075-RBS -DEM Document 54 Filed 03/16/11 Page 2 of 16 PageID# 527
(“MOVE”) and the Help America Vote Act of 2002 (“HAVA”), conflict with Project Vote’s plain-language interpretation of the NVRA. Defendant Long also raises the same argument from Defendants’ Motion to Dismiss that, contrary to the Court’s October 29, 2010 ruling, disclosure of voter registration applications is not consistent with the language of the Public Disclosure Provision.
The Court’s interpretation of the Public Disclosure Provision is consistent with the purpose and plain meaning of the statute, a fact that is not changed by Defendants’ opposition arguments. Defendant Palmer neglects principles of statutory construction in an attempt to use unrelated statutes to attribute a meaning to the Public Disclosure Provision that is not supported by its plain language. Defendant Long rehashes arguments regarding the definitions of terms in the Public Disclosure Provision that this Court has already rejected. Project Vote therefore respectfully requests that the Court grant summary judgment in its favor. I. Since the Meaning of the Public Disclosure Provision is Plain, Analysis of Other
Statutes is Neither Necessary Nor Helpful. As the Court has recognized, “[w]here the statutory language has a plain meaning, the court’s inquiry is complete and it will enforce the statute as written.” Project Vote v. Long, No. 2:10cv75, 2010 WL 4394945, at *6 (E.D. Va. Oct. 29, 2010). See also Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980) (“[T]he starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.”). In ruling on Defendants’ Motion to Dismiss, the Court stated that it could not “agree with the defendants’ construction of the Public Disclosure Provision [as prohibiting disclosure of voter registration applications], as it contradicts the statute’s plain meaning.” Project Vote, 2010 WL 4394945, at *7. In deciding
2

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this Motion for Summary Judgment, the plain language of the NVRA should again be the sole factor directing the Court’s analysis.
The Court also should not look past the plain meaning of the NVRA in an attempt to “harmonize” the Public Disclosure Provision with other statutes. See Willenbring v. United States, 559 F.3d 225, 235 (4th Cir. 2009) (when the plain meaning of a statute, the first canon of statutory interpretation, is unambiguous, “this first canon is also the last [and] judicial inquiry is complete”). The “principle that related statutes should be interpreted harmoniously applies only where the plain language of the statute at issue is ambiguous.” United States v. Able Time, Inc., 545 F.3d 824, 831 (9th Cir. 2008). In Able Time, where construction of the Tariff Act was at issue, the court rejected the defendant’s argument that “other sources, such as other statutory language,” including language from statutes that were incorporated into or related to the Tariff Act, should be used to interpret the Act’s provisions. Id. at 829. The court held that “[t]he plain language of the Tariff Act is unambiguous, so related statutes are of limited help . . . The statutory provisions cited by [defendant] are not at issue here.” Id. at 831. Similarly, this Court should not base its interpretation of the Public Disclosure Provision on statutes that relate to specific voting procedures beyond the scope of the issues in this case. II. There is No Conflict Between MOVE, HAVA, and the Public Disclosure Provision.
Defendants’ discussion of the NVRA’s relationship with MOVE and HAVA is a mere distraction because these statutes govern distinct aspects of the voting process and do not conflict with the NVRA. While both MOVE and HAVA express concerns about voter privacy, they focus on protecting the secrecy of ballots and votes, not voter registration applications. Project Vote seeks only completed applications, not the additional materials that must be kept secret under MOVE and HAVA, and therefore those statutes are not relevant here.
3

Case 2:10-cv-00075-RBS -DEM Document 54 Filed 03/16/11 Page 4 of 16 PageID# 529
A. MOVE’s Privacy Provisions Cover Only Requests for Voter Forms, Not Completed Voter Registration Applications.
Contrary to Defendants’ claim, the security measures in MOVE do not extend to the content of completed and filed voter registration applications. A report by the Senate Committee on Rules and Administration providing a section-by-section analysis of the statute notes that MOVE addresses the difficulties military and overseas voters face in corresponding with election officials. 156 Cong. Rec. S4,513, S4,517 (daily ed. May 27, 2010). The section of MOVE entitled “Designation of means of electronic communication for absent . . . voters” aids enfranchisement of absentee voters by establishing secure means of electronic communication between officials and potential voters aimed at shielding the identity of absentee voters. See 42 U.S.C. § 1973ff-1(e). The privacy protections of MOVE are limited to the electronic communications that occur during the “voter registration and absentee ballot application request processes.” Id. § 1973ff-1(e)(6)(A) (emphasis added). The statute requires states to establish procedures to “ensure that the privacy of the identity and other personal data of an absent uniformed services voter or overseas voter who requests or is sent a voter registration application or absentee ballot application . . . is protected throughout the process of making such request or being sent such application.” Id. § 1973ff-1(e)(6)(B) (emphasis added). For example, the federal request form requires an individual’s social security number. See Federal Voting Assistance Program, Registration and Absentee Ballot Request – Federal Post Card Application (FPCA), http://www.fvap.gov/resources/media/fpca.pdf (last updated January 24, 2011). MOVE protects this uniquely private information before redaction is possible by ensuring the privacy and security of the electronic transmission of the form. With respect to the completed documents, Congress explicitly protected “the privacy of the contents of absentee ballots,” § 1973ff(b)(9)(B), but did not restrict disclosure of completed voter registration applications.
4

Case 2:10-cv-00075-RBS -DEM Document 54 Filed 03/16/11 Page 5 of 16 PageID# 530
Disclosing the completed voter applications of military and overseas voters simply does not “eviscerate the privacy protections” of MOVE, as Defendants claim. Defs.’ Mem. in Opp. to Pl.’s Mot. for Summ. J. at 4. The content of the unredacted application is still protected while it moves through electronic channels, and Project Vote has not requested ballots or any other information that would interfere with the absentee voting process. Nothing in MOVE’s text or legislative history indicates a concern that disclosure of voter registration forms will jeopardize the security of the absentee voting process. Rather, disclosure of voter registration applications completed by absentee voters is crucial to ensure that these voters receive the same protection from voter fraud and discrimination as their local counterparts.
B. HAVA Protects Provisional Ballots, not Voter Registration Applications. HAVA establishes procedures for the casting and counting of provisional ballots. It requires the establishment of “reasonable procedures necessary to protect the security, confidentiality, and integrity of personal information collected, stored, or otherwise used by the free access system” that enables provisional voters to discover the status of their vote. 42 U.S.C. § 15482(a)(5)(B). These concerns about the privacy of information stored on the system are based on the recognition that the right to a secret ballot is “one of the fundamental civil liberties of our democracy.” Anderson v. Mills, 664 F.2d 600, 608 (6th Cir. 1981) (citing Buckley v. Valeo, 424 U.S. 1 (1976)). The commentary surrounding HAVA’s security requirements for provisional ballots notes the importance of such confidentiality, while recognizing the limited context to which it applies. The Joint Explanatory Statement explains that the provision “[r]equires that . . . the ballot be promptly verified and counted if determined to be valid under State law, and the voter (and no one else) be able to ascertain whether the ballot was counted (and if not, why not) through a free-access system and be informed of that option when the ballot
5

Case 2:10-cv-00075-RBS -DEM Document 54 Filed 03/16/11 Page 6 of 16 PageID# 531
is cast.” H.R. Conf. Rep. No. 107-730, pt. 1, at 75, reprinted in 2002 U.S.C.A.N.N. at 1094-95 (emphasis added). The legislative history indicates that the information regarding individual provisional ballots that is protected under HAVA is not data within a registration application, but rather confirmation of the vote’s current status. Id. Moreover, HAVA explicitly disavows any effort to “supersede, restrict, or limit the application of” the NVRA, insisting that nothing in HAVA “may be construed to authorize or require conduct prohibited under,” inter alia, the NVRA. See 42 U.S.C. § 15545(a). This provision demonstrates congressional intent to supplement, not displace, the prior statute.
Defendants misconstrue another reference to the NVRA by HAVA at 42 U.S.C. § 15482(a)(5), by claiming that it “expresses Congressional intent that is consistent with the Defendants’ interpretation of the Public Disclosure Provision of the NVRA, i.e., one that does not mandate public disclosure of completed voter registration applications.” Def. Palmer’s Mem. in Opp. to Pl.’s Mot. for Summ. J. at 7 (emphasis in original). The referenced portion of the NVRA, section 4(b), actually discusses states that either do not require registration to vote or allow registration on the day of election, and thus do not use provisional ballots. HAVA’s reference to this section of the NVRA is irrelevant to the issues in this case. HAVA requires those states that do use provisional ballots to protect the content of those ballots, but places no constraints on disclosure of voter registration applications. III. Disclosure of Redacted Registration Applications Will Not Violate Voter Privacy.
The core purposes of the NVRA include increasing voter registration and preventing voter fraud. 42 U.S.C. § 1973gg(b). Disclosure of voter registration applications provides no obstacle to the fulfillment of the first aim and actively promotes attainment of the second. See Project Vote, 2010 WL 4394945, at *10 (“The court’s conclusion regarding the Public
6

Case 2:10-cv-00075-RBS -DEM Document 54 Filed 03/16/11 Page 7 of 16 PageID# 532
Disclosure Provision’s plain meaning [as requiring disclosure of voter registration applications] is certainly congruent to the statute’s purposes.”).
A. By Seeking Only Applications from which Social Security Numbers Have Been Redacted, Project Vote Has Not Implicated Privacy Concerns.
Throughout this litigation, Project Vote has been clear that it does not seek disclosure of social security numbers. Social security numbers are unique in their heightened privacy implications, as “the harm that can be inflicted from the disclosure of a SSN to an unscrupulous individual is alarmingly and potentially financially ruinous.” Greidinger v. Davis, 988 F.2d 1344, 1353-54 (4th Cir. 1993) (noting that “the widespread use of SSNs as universal identifiers in the public and private sectors is one of the most serious manifestations of privacy concerns in the Nation”) (internal quotations and citations omitted). See also Project Vote, 2010 WL 4394945, at *11 (“SSNs are uniquely sensitive and vulnerable to abuse, such that a potential voter would understandably be hesitant to make such information available for public disclosure.”) (emphasis added).
No such privacy concerns attach to the other types of information contained on Virginia registration applications. Voters do not have a viable privacy interest in their names and addresses, for example, as such information is already public. See, e.g., Avondale Indus., Inc. v. NLRB, 90 F.3d 955 (5th Cir. 1996) (disclosing lists containing names and addresses of plaintiff’s employees who voted at NLRB sponsored union representative election was not an invasion of personal privacy). In fact, the NVRA already explicitly requires that lists including names and addresses of people to whom notices are sent regarding their removal from the voter roles be subject to disclosure. See 42 U.S.C. § 19733gg-6(i)(2).
Other courts have permitted disclosure of voter registration applications with the social security numbers redacted. The Fourth Circuit in Greidinger distinguished the disclosure of
7

Case 2:10-cv-00075-RBS -DEM Document 54 Filed 03/16/11 Page 8 of 16 PageID# 533
social security numbers from public disclosure of other registration information. 988 F.2d at 1354. The court stated that “disclosure of . . . an address or date of birth” would promote the NVRA’s overall statutory purposes. Id. at 1354-55. It is also noteworthy that the Virginia Supreme Court has permitted disclosure of redacted voter registration applications. See Rivera v. Long, No. 070274, slip op. (VA Sup. Ct. Feb 8, 2008) (plaintiff was allowed to inspect and copy voter registration applications after redaction of applicants’ social security numbers).
Moreover, assembling public information in one place does not make that information private. All of the information requested on the application, including an individual’s felony record or a judgment of mental incompetency, is public, and obtainable through publicized channels. See, e.g., Doe v. Reed, 130 S. Ct. 2811, 2819-20 (2010) (providing public access to signatory information on referendum petition); Smith v. Doe, 538 U.S. 84, 101 (2003) (“Although the public availability of the information may have a lasting and painful impact . . . the fact of [an individual’s] conviction [is] already a matter of public record”); Va. Code Ann. §§ 17.1-208, 37.2-1014 (2010) (requiring that the clerk of the circuit court keep any maintained records “open to inspection by any person,” and mandating that a copy of the court’s findings at a hearing to determine incapacity be “filed by the judge with the clerk of the circuit court”). Where disclosure of each piece of publicly available information, accessible through other forums, implicates no privacy interest, disclosing these same pieces of information, compiled via blanks on a registration form, does not alter the lack of any significant privacy interest at stake.
B. Disclosure of the Information on Voter Registration Applications is Necessary to Further the Purpose of the NVRA.
The disclosure of voter registration applications is a key element in protecting the integrity of the voter registration process. The Fourth Circuit has recognized the importance of such disclosures in furthering the “compelling state interest in preventing voter fraud.”
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Case 2:10-cv-00075-RBS -DEM Document 54 Filed 03/16/11 Page 9 of 16 PageID# 534
Greidinger, 988 F.2d at 1354 (“Virginia’s interest in preventing voter fraud and voter
participation could easily be met without the disclosure of the SSN . . . an address or date of birth
would sufficiently distinguish among voters that shared a common name.”). The Supreme Court
has also recognized that the great need to prevent voter fraud trumps any lingering privacy
concerns regarding information contained on a registration form. See Doe, 130 S. Ct. at 2819-20
(state’s strong interest in rooting out fraud and protecting the integrity of the electoral process by
promoting transparency and accountability outweighed petitioner’s objection that the compelled
disclosure of signatory information on referendum petition impermissibly burdened his First
Amendment rights); Storer v. Brown, 415 U.S. 724, 732-33 (1974) (state has a compelling
interest in protecting the integrity of the electoral process). Here, the Court should permit
disclosure of the applications.
III. The Public Disclosure Provision is Not Limited to Records Concerning Removal of Names from Voter Lists.
Once again, Defendants claim that the structure and language of the Public Disclosure
Provision indicates that the statute does not contemplate the disclosure of voter registration
applications, but only records that pertain to removing voters from registration lists. The Public
Disclosure Provision provides that:
(1) Each State shall maintain for at least 2 years and shall make available for public inspection and, where available, photocopying at a reasonable cost, all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters, except to the extent that such records relate to a declination to register to vote or to the identity of a voter registration agency through which any particular voter is registered. (2) The records maintained pursuant to paragraph (1) shall include lists of the names and addresses of all persons to whom notices described in subsection (d)(2) of this section are sent, and information concerning whether or not each such person has responded to the notice as of the date that inspection of the records is made.
42 U.S.C. § 1973gg-6(i). 9

Case 2:10-cv-00075-RBS -DEM Document 54 Filed 03/16/11 Page 10 of 16 PageID# 535 As the Court has already held, the plain language of the Public Disclosure Provision
authorizes disclosure of both voter registration and removal records. See Project Vote, 2010 WL 4394945, at *7-11. The process by which Virginia evaluates individuals for inclusion on the official lists of eligible voters is a “program or activity” conducted for the purpose of ensuring that such lists are accurate and current, an interpretation supported by the language, context, and purpose of the NVRA. Id. at *7. Completed voter registration applications are integral to that process and do not fall under either of the Public Disclosure Provision’s two exceptions to disclosure. Id. at *7-8. Given that the term “shall include” does not limit the types of records subject to disclosure, the Public Disclosure Provision requires that completed voter registration applications be made available for public inspection and copying. Id. at *8 n.17.
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Case 2:10-cv-00075-RBS -DEM Document 54 Filed 03/16/11 Page 11 of 16 PageID# 536
A. The Plain Language and Contextual Meaning of “Programs and Activities” Encompasses Registering Voters as well as Removing Voters from Registration Lists.
As Defendant Palmer concedes, this Court has already “found that the terms ‘programs and activities’ are broad enough to include completed voter registration forms” in addition to records related to voter removal. Def. Palmer’s Opp. to Pl.’s Mot. for Summ. J. at 2. Under the plain language of the provision, ensuring the accuracy and currency of eligible voter lists necessitates being able to register new voters as well as delete voters from those lists. See Project Vote, 2010 WL 4394945, at *9 (voter registration applications affect “whether a list of eligible voters is current and accurate”). The Court noted, “[t]here is ample support throughout the NVRA . . . for the conclusion that the Public Disclosure Provision is meant to cover records concerning the implementation of voter registration procedures, which by necessity include voter registration applications.” Id. at *10.
Although the Court did not define all the specific procedures signified by the general terms “programs and activities” in its prior ruling, it suggested that Defendants’ narrow interpretation of that phrase as applying only to removal of voters from lists was not supported by the language of the NVRA. See id. at *9 (rejecting Defendants’ contention that “the Public Disclosure Provision ‘arises in the context of the procedure for removing voters from registration lists’ as not borne out in the statute”) (quoting Defs.’ Mem. in Supp. of Mot. at 11). As the Court pointed out, every substantive section under 42 U.S.C. § 1973gg, including the section containing the Public Disclosure Provision, discusses methods to increase voter registration. See id. at *10 (listing examples of subsections discussing voter registration programs). This pervasive emphasis on voter registration is in keeping with the NVRA’s goal of increasing voter participation. See 42 U.S.C. § 1973gg(b)(1) (stating that the purpose of the NVRA is “to
11

Case 2:10-cv-00075-RBS -DEM Document 54 Filed 03/16/11 Page 12 of 16 PageID# 537
establish procedures that will increase the number of eligible citizens” able to vote in federal elections).
The NVRA sections that Defendants cite in their opposition do not support their argument that “programs and activities” refer only to processes facilitating removal rather than registration of voters. Those sections limit the manner in which States may remove individuals from the official lists of eligible voters. See, e.g., 42 U.S.C. § 1973gg-6(a) (prohibiting a State from removing a voter from the voting rolls unless certain conditions are met). The fact that certain subsections within the NVRA deal “specifically and exclusively with voter removal procedures” shows that Congress could and did choose to deal exclusively with voter removal procedures in some sections, but Congress did not similarly limit the scope of the Public Disclosure Provision. Project Vote, 2010 WL at 4394945, at *9. The plain language of the Public Disclosure Provision, as well as the context and overall purpose of the NVRA, all indicate that “programs and activities” include voter registration.
B. The Exceptions Clause Refutes Defendant’s Argument that the Public Disclosure Provision Reaches Only those Records Related to Removing Voters from Lists.
The two types of records described in the exceptions to the Public Disclosure Provision at 42 U.S.C. § 1973gg-6(i)(1) (records regarding declinations to register to vote and the identity of voter agencies) concern voter registration, thereby “demonstrating that the Public Disclosure Provision necessarily contemplates records relating to voter registration procedures.” Project Vote, 2010 WL 4394945, at *8. The Public Disclosure Provision requires that “all records” concerning the accuracy of voting lists be disclosed, bringing voter registration applications within its reach. 42 U.S.C. § 1973gg-6(i)(1). Those “records which Congress did not want to be encompassed by the term ‘all’ were specifically identified in the exceptions . . . and voter
12

Case 2:10-cv-00075-RBS -DEM Document 54 Filed 03/16/11 Page 13 of 16 PageID# 538
registration applications do not fall within either of those exceptions.” Project Vote, 2010 WL 4394945, at *8.
Defendants once again claim that the exempted records do not relate to voter registration and are only mentioned to ensure that they will not be disclosed. The Court previously rejected this argument, noting that “if the defendants’ contention were true, the inclusion of those exceptions would be superfluous because it would mean that the exceptions refer to records that were never within the purview of the Public Disclosure Provision in the first place.” Id.; Discover Bank v. Vaden, 396 F.3d 366, 369 (4th Cir. 2005) (stating that “[i]t is a classic canon of statutory construction that courts must give effect to every provision and word in a statute and avoid any interpretation that may render statutory terms meaningless or superfluous”). Given that the exceptions clause demonstrates Congressional intent to include all records related to voter registration activities not specifically excepted, the plain language of the Public Disclosure Provision compels disclosure of the completed voter registration applications Plaintiff seeks.
C. The Term “Shall Include” Introduces Examples of Records Subject to Disclosure without Limiting the Types of Records Covered by the Public Disclosure Provision.
The Public Disclosure Provision employs the phrase “shall include” not as a term of limitation, as Defendants claim, but as a term of enlargement. Under Defendants’ interpretation, the only records subject to disclosure are those specifically named in 42 U.S.C. § 1973gg-6(i)(2), a list that does not include voter registration applications. See Def. Long’s Opp. to Pl.’s Mot. to Dismiss at 9-10. Defendants claim that interpreting this section as a floor rather than a ceiling renders it meaningless because, under such an interpretation, only the broad language of “all” in subsection 6(i)(1) has any meaning. Id. As the Court previously held, however, “there is no indication in the statute that the use of the term ‘shall include’ is meant to limit the term ‘all
13

Case 2:10-cv-00075-RBS -DEM Document 54 Filed 03/16/11 Page 14 of 16 PageID# 539
records.’ Instead, this language is not exhaustive and merely explains that those types of records, among others, are subject to disclosure.” Project Vote, 2010 WL 4394945, at *8 n.17. See Fed. Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 100 (1941) (“[T]he term ‘including’ is not one of all-embracing definition, but connotes simply an illustrative application of the general principle.”) (citations omitted); Nat’l Fed’n of the Blind v. FTC, 420 F.3d 331, 337-38 (4th Cir. 2005) (holding that the term “shall include” was not exhaustive in light of the breadth of other statutory provisions).
The Court also noted that Defendants’ argument fails because, if it were true, “the term ‘all’ would be rendered meaningless and the exceptions [to the Public Disclosure Provision] would be superfluous, as they are not the ‘type’ of records listed in subsection 6(i)(2).” Project Vote, 2010 WL 4394945, at *8 n.17. Under Defendants’ strained interpretation, Congress intended to exclude from the Public Disclosure Provision records that were never covered by the provision in the first place. The plain language of the provision demonstrates instead that subsection 6(i)(2) is not an exhaustive list of the records subject to disclosure that excludes voter registration applications, but merely an illustrative list.
14

Case 2:10-cv-00075-RBS -DEM Document 54 Filed 03/16/11 Page 15 of 16 PageID# 540
CONCLUSION For the foregoing reasons, Project Vote is entitled to judgment as a matter of law, and the Court should therefore grant its motion for summary judgment.
Respectfully submitted, /s/ Ryan Malone Ryan M. Malone (VA Bar # 48526) Augustine M. Ripa (VA Bar #77244) David O. Stewart (admitted pro hac vice) Douglas H. Hallward-Driemeier (admitted pro hac vice) ROPES & GRAY LLP 700 12th Street NW, Suite 900 East Washington D.C. 2005 TEL: 202-508-4669 FAX: 202-383-8322 Ryan.Malone@ropesgray.com Counsel for Plaintiff Project Vote/Voting for America, Inc.
15

Case 2:10-cv-00075-RBS -DEM Document 54 Filed 03/16/11 Page 16 of 16 PageID# 541 CERTIFICATE OF SERVICE
I hereby certify that on the 16th day of March, 2011, I electronically filed the foregoing pleading with the Clerk of Court using the CM/ECF system, which will send a notification of such filing to all counsel of record.
/s/ Ryan Malone Ryan M. Malone
16

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA
Norfolk Division

FILED
JUl 2 0 2011

PROJECT VOTE/VOTING FOR AMERICA, INC., Plaintiff,
v. ELISA LONG, in her Official Capacity as General Registrar of Norfolk, Virginia, and

CU:Hi\. U.S. D~S.'f.11CT COUi~T rv·rF()I '< VA
Civil No. 2:10cv75

DONALD PALMER, in his Official Capacity as Secretary, State Board of Elections,
Defendants.

OPINION On February 16, 2010, the plaintiff, Project Vote/Voting For America, Inc. {"Project Vote"), filed a Complaint for Declaratory and Injunctive Relief {"Complaint") against the defendants, Elisa Long {"Long") and Nancy Rodrigues {"Rodrigues") . On October 29, 2010, this court denied the defendants' Motion to Dismiss the Complaint {"Motion to Dismiss") , brought pursuant to Federal Rule of Civil Procedure 12 {b) {1 ) and {6 ) . See Project Vote/Voting for Am. , Inc. v. Long, 752 F. Supp. 2d 697, 712 {E.D. Va. 2010). On November 10, 2010, Rodriguez and Long answered the Complaint. Donald Palmer {"Palmer") became the Secretary of the Virginia State Board of Elections on January 28, 2 011, and, thus, was substituted for

Rodriguez as a named defendant by operation of law pursuant to

Federal Rule of Civil Procedure 25 (d) . (See Mem. Order 1 n.1,

ECF No. 56.) On January 31, 2011, the plaintiff filed a Motion

for Summary Judgment. On March 1, 2011, Palmer and Long

responded, and the plaintiff replied on March 16, 2011. On June

10, 2011, the court convened for a status conference and

directed that any further submissions regarding the Motion for

Summary Judgment, or any proposed consent decree resolving the

matter, be filed on or before July 1, 2011. (See id. at 1. )

Pursuant to that direction, the defendants filed an Affidavit of

Elisa Long on June 24, 2010, 1 and the plaintiff filed a

supplemental memorandum on July 1, 2011. 2 On July 6, 2011, Long

filed a Motion for Leave to File a Reply to Project Vote's

1

Long's affidavit addresses the rejection of voter

registration applications from Norfolk State University students

that were submitted prior to the November 2008, general

election, as well as the counting of provisional ballots from

such students. The defendants submitted Long's affidavit to

"supplement the record before the Court, " (Notice 1, ECF No.

57), but they do not change their position that there is no

genuine issue of material fact, nor do they provide any

indication of how Long's affidavit is relevant to resolving the

Motion for Summary Judgment. The court can only surmise that

the defendants wished to convey that the plaintiff's motivation

for bringing this action is unfounded -- eligible Norfolk State

University students were not prevented or discouraged from

voting in Virginia's 2008 general election. This point is

irrelevant to the instant dispute.

2

In the supplemental memorandum, the plaintiff argues that

the court should order the immediate disclosure of all records

it seeks. (Pl. ' s Supplemental Mem. 2, ECF No. 58 . ) ; see infra

11-15.

2

Supplemental Memorandum, and on July 7, 2011, the court granted that motion. 3 The Motion for Summary Judgment is ripe for
review.
I. Factual Background
The relevant factual history is set forth in detail in the
court's October 29, 2010, Opinion, and need not be repeated in
full herein. See Project Vote, 752 F. Supp. 2d at 698-701. In
brief review, Project Vote and Advancement Project, a national
civil and voting rights organization with which Project Vote
works, sought to inspect and obtain copies of
the completed voter registration applications of any individual who timely submitted an application at any time from January 1, 2008, through October 31, 2008, who was not registered to vote in time for the November 4, 2008 general election, and also other documents, such as documents identifying the reasons the applications were rejected.
(Compl. ~ 15 (internal quotation marks omitted}.} This request
was made pursuant to the National Voter Registration Act's
("NVRA"} Public Disclosure Provision, 42 u.s.c. § 1973gg-6(i} (1}
(hereinafter referred to as the "Public Disclosure Provision") . 4

3

Long argues that the court should "deny Project Vote' s

request for immediate disclosure of the 2008 voter registration

applications," and instead "stay access to those applications

pending a final resolution of this matter." (Long's Reply to

Pl.'s Supplemental Mem. 2, ECF No. 62}; see infra 11-15.

4

This provision reads in pertinent part:

3

The defendants will not permit Project Vote to inspect or copy
these records {collectively referred to as the "Requested
Records"), purportedly because Virginia Code § 24.2-444 forbids
their disclosure, {Compl. ~ 17), and the Public Disclosure
Provision does not require that they be made available for
inspection and photocopying. {Id. ~ 22.)
In the Complaint, the plaintiff alleges that the NVRA' s
Public Disclosure Provision requires that the Requested Records
be available to the public for inspection because they are
records "'concerning the implementation of programs or
activities conducted for the purpose of ensuring the accuracy
and currency of official lists of eligible voters.''' {Id. ~ 29
{quoting 42 U.S.C. § 1973gg-6{i) {1)) .) Additionally, to the
extent that the Virginia statute limits the availability of the
Requested Records to the public for inspection and photocopying,
it is superseded by the NVRA, pursuant to the Supremacy Clause
of the United States Constitution. Therefore, the plaintiff
Each State shall maintain for at least 2 years and shall make available for public inspection and, where available, photocopying at a reasonable cost, all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters, except to the extent that such records relate to a declination to register to vote or to the identity of a voter registration agency through which any particular voter is registered. 42 U.S.C. § 1973gg-6 {i) (1) (emphasis added).
4

asks the court to : 1) declare that the defendants are in violation of the NVRA; 2) declare that the NVRA preempts Virginia Code § 24.2-444, and any other Virginia law or regulation stating the same; 3) "[p]ermanently enjoin Defendants from refusing to permit access to any requesting party for copy and/or inspection of voter registration applications and related records, as sought by Project Vote in this matter"; and 4) award Project Vote the costs incurred in pursuing this action, as authorized by 42 U.S.C. § l973gg-9(c). (Id. at 11.)
In the Motion for Summary Judgment, the plaintiff asserts that it is entitled to judgment as a matter of law based upon the court's previous holding that the Public Disclosure Provision grants the plaintiff certain access to the Requested Records. See Project Vote, 752 F. Supp. 2d at 712. The defendants contend that they are entitled to summary judgment based upon their previous arguments, which the court rejected in its Opinion of October 29, 2010, as well as upon several new arguments. Both defendants argue that the court's previous construction of the Public Disclosure Provision is "inconsistent with two other federal statutes which seek to protect the confidentiality of voter registration information and is contrary to the Congressional purpose underlying all three laws: the encouragement of voting." (Palmer's Mem. in Opp. to Mot.
5

for Summ. J. 2, ECF No. 51; see Long's Mem. in Opp. to Mot. for Summ. J. 11, ECF No. 52 [hereinafter "Long's Opp.")). Long also argues that "the Court failed to define the plain meaning of the operative phrase 'programs and activities,' or to review the use of those terms in context," (Id. at 3) , and analysis of that phrase "reveals that Congress did not intend to mandate disclosure of voter registration applications." (Id. at 2.) II. Analysis
Summary judgment is appropriate when a court, viewing the record as a whole and in the light most favorable to the nonmoving party, finds that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56 (a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 {1986); Terry's Floor Fashions, Inc. v. Burlington Indus., Inc., 763 F. 2d 604, 610 (4th Cir. 1985). In this case, all the parties agree, and the court FINDS, that there are no material facts in dispute, and that the issue is the same one resolved in the court's Opinion of October 29, 2010, which denied the defendants' Motion to Dismiss and specifically addressed whether the NVRA's Public Disclosure Provision requires the Requested Records to be made available to the public for inspection and photocopying. Accordingly, if the plaintiff is not entitled to judgment as a
6

matter of law, the court must necessarily enter judgment in favor of the defendants. Cf. Amzura Enters., Inc. v. Ratcher, 18 F. App'x 95, 2001 WL 1023112, at *7 n. 8 (4th Cir. 2001) (per curiam) (unpublished) (noting that the "' [t] hreat of procedural prejudice is greatly diminished if the court's sua sponte determination [in favor of the nonmovant] is based on issues identical to those raised by the moving party'" (quoting Bridgeway Corp. v. Citibank, 201 F.3d 134, 140 (2d Cir. 2000))).
The defendants rightly anticipate that the court adheres to its rejection of the defendants' previous arguments for nondisclosure of the Requested Records, and so they raise purportedly new arguments in an effort to persuade the court that its prior ruling was wrong. Long argues that the court "ignor[ed] the plain meaning of the phrase 'programs and activities,' and its contextual meaning in the overall statutory scheme." (Long' s Opp . 6 . ) The court understands that Long disagrees with the court's prior ruling, but Long is mistaken. In assessing the statute's common and ordinary meaning, the court found that "a program or activity covered by the Public Disclosure Provision is one conducted to ensure that the state is keeping a 'most recent' and errorless account of which persons are qualified or entitled to vote within the state." Project Vote, 752 F. Supp. 2d at 706; see id. (finding that
7

"[t] he process by which the Commonwealth determines whether a person is eligible to vote" is "by its very nature, [] designed to ensure that the Commonwealth's lists are current and accurate" (emphasis added)) . Furthermore, in looking to the specific context of the statutory language, the court found that "programs and activities" is not limited to maintenance of lists. See id. at 708-09 (discussing why the defendants' position "is not borne out in the statute") . In sum, the court squarely assessed the plain meaning of "programs and activities," and, therefore, Long's argument does not persuade the court to abandon its prior ruling. 5
Both Palmer and Long argue that the court's prior ruling is inconsistent with two other federal statutes -- the Military and Overseas Voter Empowerment ("MOVE") Act, which amended the Uniformed and Overseas Citizens Absentee Voting Act ( "UOCAVA") , 42 U.S.C. §§ 1973ff-1973ff-7, and the Help Americans Vote Act of

5

Long raises two other arguments in her Opposition to the

Motion for Summary Judgment, but makes no pretense that they are

new; she merely challenges the court's prior ruling. She first

argues that a contextual review of the Public Disclosure

Provision's exceptions does not support disclosure of voter

registration applications. The court already rejected this

argument, Project Vote, 752 F. Supp. 2d at 706-08, and sees no

reason to depart from its ruling here. Long also argues that

the language ''shall include" in the Public Disclosure Provision

limits the records subject to disclosure to only those listed

therein. The court rejected this argument too, id. at 708 n.l7,

and sees no reason to depart from that ruling here.

8

2002 ("HAVA"}, Pub. L. No. 107-252, 116 Stat. 1666 (codified in

scattered sections of Titles 2, 5, 10, 18, 29, 35, 39, 41, 42,

and 44 of the United States Code} . They cite the Fourth

Circuit's admonition that when a court "must construe two

statutory schemes together, [its] duty is to reconcile and

harmonize the statutes, and carry out the legislative intent

behind both schemes." In re Bulldog Trucking, Inc., 66 F. 3d

1390, 1395 (4th Cir. 1995} (citations omitted}. The defendants

then claim that in order to harmonize the NVRA with these other

statutes, this court must find that the Public Disclosure

Provision does not permit public disclosure of completed voter

registration applications.

The court disagrees with this

position.

The instant dispute only involves the proper

interpretation of the NVRA' s Public Disclosure Provision.

Disclosure of the completed voter registration applications does

not implicate the MOVE Act' s security and privacy protections,

which only apply to "the voter registration and absentee ballot

application request processes," 42 U.S.C. § 1973ff-1(e} (6}

(emphasis added}, and absentee ballots. Id. § 1973ff-1 (f) (3}.

Likewise, disclosure of the Requested Records does not implicate

HAVA' s security and privacy protections, which only apply to

provisional ballots. See 42 U.S.C. § 15482(a} (5}. The NVRA as

interpreted by this court, the MOVE Act, and HAVA "are capable

9

of co-existence, II and the court ''regard [s] each as effective. 11 Morton v. Mancari, 417 U.S. 535, 551 (1974) . 6
The defendants also revisit their previous argument that disclosing the Requested Records, even with the voters' social security numbers ( "SSN'') redacted, will chill voter registration applications and frustrate the overall purpose of the NVRA. For the same reasons set forth in the court's previous ruling, the court disagrees. See Project Vote, 752 F. Supp. 2d at 709-712.
The court is not persuaded that it should abandon its prior ruling. Accordingly, the court adopts and incorporates in full the reasoning set forth in its Opinion of October 29, 2010, and, for the reasons stated in that Opinion and above, FINDS that the NVRA's Public Disclosure Provision, 42 U.S.C. § 1973gg-6(i) (1), grants the plaintiff access to completed voter registration applications with the voters' SSNs redacted for inspection and photocopying.

6

Moreover, the court already found that the plain meaning of

the NVRA' s Public Disclosure Provision requires disclosure of

the voter registration applications, and thus "the court's

inquiry is complete and it will enforce the statute as written."

Project Vote, 752 F. Supp. 2d at 705 (citing Stephens ex rel.

R.E. v. Astrue, 565 F.3d 131, 137, 140 (4th Cir. 2009}}; see In

re JKJ Chevrolet, Inc., 26 F. 3d 481, 483 (4th Cir. 1994} ("If

the language is plain and the statutory scheme is coherent and

consistent, there is no need to inquire further. 11 (internal

quotation marks and citations omitted}}.

10

III. Relief The NVRA's Public Disclosure Provision grants the plaintiff
access to completed voter registration applications with the voters' SSNs redacted for inspection and photocopying. Furthermore, to the extent that any Virginia law, rule, or regulation forecloses disclosure of completed voter registration applications with the voters' SSNs redacted, the court FINDS that it is preempted by the NVRA. See U.S. Canst. art. VI, cl. 2;
Maryland v. Louisiana, 451 u.s. 725, 746-47 {1981}. Therefore,
the court FINDS the defendants are in violation of the NVRA by refusing to grant access to completed voter registration applications with the voters' SSNs redacted for inspection and photocopying. Accordingly, the plaintiff's Motion for Summary Judgment is GRANTED, insofar as the plaintiff's request for declaratory relief.
The court now addresses the plaintiff's request for injunctive relief. In order to obtain a permanent injunction, "a plaintiff must demonstrate: {1} that is has suffered an irreparable injury; {2} that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; {3} that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted, and (4} that the public interest would not be disserved by a permanent
11

injunction." eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006) . The defendants do not contest that the plaintiff is entitled to injunctive relief, if the Public Disclosure Provision grants it access to completed voter registration applications with the voters' SSNs redacted, and the court so finds. Considering the ubiquity of voting in our representative democracy, there is a "real and immediate threat" that members of the public, like the plaintiff, may again be wrongfully denied the statutory right to inspect and photocopy completed voter registration records with the voters' SSNs redacted. See City of L.A. v. Lyons, 461 U.S. 95, 111 (1983) (remarking that an injunction is "unavailable absent a showing . . of any real or immediate threat that the plaintiff will be wronged again"); Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F. 3d 305, 347 (4th Cir. 2001) ("Before a court grants a permanent injunction, the court must find necessity-a danger of future violations." (citations omitted)). Accordingly, the irreparable injury prong is met. Similarly, there is no genuine issue that monetary damages are insufficient to compensate for denial of a statutory right to access completed voter registration applications. See E. Tenn. Natural Gas Co. v. Sage, 361 F.3d 808, 823 (4th Cir. 2004) (" [W] hen a substantive right exists, an equitable remedy may be fashioned to give effect to that right if the prescribed
12

legal remedies are inadequate." (citations omitted)).

The

balance of hardships does not weigh in favor of the defendants,

as a permanent injunction will simply compel the defendants to

comply with their responsibilities under the NVRA and, thus, will

prevent them from denying the public of a statutory right.

In this case, while the public interest weighs in favor of a

permanent injunction, it also limits the injunction's scope.

Long argues that the court should "stay disclosure of the 2008

voter registration applications pending a final resolution of

this dispute, because applicants submitted those applications

with the expectation of privacy."

{Long's Reply to Pl.'s

Supplemental Mem. 1, ECF No. 62.) 7 The court agrees, but does

not believe that such a stay goes far enough to protect

applicants' past expectations of privacy. As this case appears

to be one of first impression, see Project Vote, 752 F. Supp. 2d

at 705 n.10, the court will not issue a retrospective permanent

injunction that discloses personal information from citizens who

plausibly believed such information was confidential at the time

they provided it. (See Va. Voter Registration Application Form,

Ex. D to Mem. in Supp. of Mot. to Dismiss, ECF No. 9-4

[hereinafter "Va. Voter Registration Application") {stating that

"this registration card will not be open to inspection by the

7

See supra note 3.

13

public") . ) 8 The court FINDS that the public interest would be

disserved, if the defendants are permanently enjoined from

refusing to permit inspection and photocopying of voter

registration applications that were completed prior to final

judgment in this case, even if the SSNs are redacted. See eBay,

547 U.S. at 391. Accordingly, the plaintiff's Motion for Summary

Judgment is DENIED, insofar as the plaintiff requests

retrospective relief. 9

The public interest will be served if the defendants are

permanently enjoined from refusing to permit inspection and

photocopying of completed voter registration applications with

the voters' SSNs redacted to the extent such applications are completed subsequent to final judgment in this case . 10 The

defendants will need to update their policies and procedures to

comply with this court's ruling. Among other changes, the

8

The plaintiff claims that there is no such expectation of

privacy, as "voters in Virginia have previously been told by the

Virginia Supreme Court that completed voter registration

applications might be disclosed to the public."

(Pl. 's

Supplemental Mem. 2 (citing Rivera v. Long, No. 070274 (Va. Feb.

8, 2008) (unpublished)).) The court is not convinced that an

unpublished Virginia Supreme Court opinion eviscerates an

expectation of privacy reasonably engendered by an explicit

privacy notice on the face of the voter registration application.

See Va. Voter Registration Application.

9

In other words, the defendants are not enjoined from

refusing to permit access to the Requested Records, but are so

enjoined as to voter registration applications completed

subsequent to final judgment in this case.

10 See supra note 9. 14

defendants will need to remove language on Virginia's voter

registration application that claims the application is not

subject to public disclosure.

See va. Voter Registration

Application. The parties do not contest that there is no genuine

issue of material fact regarding the propriety of prospective

injunctive relief, and indeed, the court finds none.

Accordingly, the plaintiff's Motion for Summary Judgment is

GRANTED, insofar as the plaintiff's request prospective

injunctive relief.

The court DIRECTS the Clerk to send a copy of this Opinion

to counsel for the parties and to enter judgment thereon.

IT IS SO ORDERED.
Norfolk, Virginia
July ~D , 2011

lsi
Rebecca Beach Smith united States District Judge
-~
REBECCA BEACH SMITH UNITED STATES DISTRICT JUDGE

15

 
 Case 2:10-cv-00075-RBS -DEM Document 64 Filed 07/20/11 Page 1 of 1 PageID# 592

IN THE UNITED STATES DISTRICT «tOURT FILED
FOR THE EASTERN DISTRICT OF VI RG~-3
NORFOLK DIVISION
JUL 2 0 2011

PROJECT VOTE/VOTING FOR AMERICA, INC.,
Plaintiff,

CLERK. U.S. DIS"iRICT COURT NORFOI K. VA

v.

CASE NO. 2:10CV75

ELISA LONG, etc., et al,
Defendants,

JUDGMENT IN A CIVIL CASE
[ ] Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.
(X] Decision by the Court. This action came for decision by the Court. The issues have been considered and a decision has been rendered.
IT IS ORDERED that the Plaintiff's Motion for Summary Judgment is GRANTED insofar as the plaintiff's request for declaratory relief; the plaintiff's Motion for Summary Judgment is DENIED, insofar as the plaintiff requests retrospective relief; and the plaintiff's Motion for Summary Judgment is GRANTED, insofar as the plaintiff's request prospective injunctive relief.

DATED: July 20, 2011

FERNANDO GALINDO Clerk of Court
/S/ By:
M. J. Cowart, Deputy Clerk

 
 Case 2:10-cv-00075-RBS -DEM Document 67 Filed 07/25/11 Page 1 of 12 PageID# 600

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

PROJECT VOTE/VOTING FOR AMERICA,

Plaintiff,

v.

Case

No. 2:10-CV-75

ELISA LONG, General Registrar for the City of Norfolk, Virginia, and DONALD PALMER, Secretary of the Virginia State Board of Elections,

Defendants.

DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION TO STAY JUDGMENT

The Defendants, Donald Palm er, Secretary of the Virginia State Board of

Elections (“SBE”), and Elisa Long, the Ge neral Registrar for th e City of Norfolk,

Virginia, through counsel, respectfully ask the Court to stay its July 20, 2011, judgm ent

under Fed. R. Civ. P. 62(c), for the following reasons discussed further below:

First, the facts here suppor t staying this judgm ent pending appeal to the Fourth

Circuit Court of Appeals under th e four-part test set forth in Hilton v. Braunskill , 481

U.S. 770, 776 (1987) . This in cludes the prejudice the Defendants will suffer com plying

with the Court’s ruling which, if not stayed, would require the disposal of over a m illion

voter registrations currently in stock for the 2011-2012 election cycle, and the prom pt

expenditure of substantial tim e and money to redo and reprint an estim ated 1.2 million

Voter Registration Applications (“A pplications”). This would include obtaining pre-

clearance from the U.S. Departm ent of Ju stice (“DOJ”) under Section 5 of the Voting

Rights Act, 42 U.S.C. §§ 1973c. In total, it will take an estim ated six months to m ake

Case 2:10-cv-00075-RBS -DEM Document 67 Filed 07/25/11 Page 2 of 12 PageID# 601

changes to the Applications and cost an estimated $78,500 to print and restock the new

Applications. If the Court’s ruling is overturned on appeal, all that time and money will

be lost. This would prejudice the Defendants and not serve the public interest.

In addition, Virginia is holding prim ary elections for state and local offices on

August 23, 2011, and elections for those offices (including the State Senate and House of

Delegates) on Novem ber 8, 2011. It is im possible for Virg inia to com ply with the

Court’s order in time for those elections given the required approvals described above.

A stay will also not impose any appreciable harm on the Plaintiff or voters whose

applications are d enied. Curren t law alr eady provides: (1) notic e to denied voter

registration applicants about w hy their applications are deni ed and how they can appeal

those denials to a state court; and (2) a public list of all persons whose applications are

denied, making it possible for the Plainti ff to m onitor denials and contact denied

applicants. This lessens the “harm” (if any) a stay would pose to the Plaintiff.

Second, and very im portantly, the Consent Decree entered into under the Fourth Circuit’s ruling in Greidinger v. Davis, 988 F.2d 1344, 1353 (4th Cir. 1993), mandates the

inclusion of a Privacy Act Notice on these Applications. That Notice states, among other

things, that voter registration cards (applications) “will not b e open to inspection by the

public,” which conflicts directly with the Court’s July 20 ruling. The Defendants ask the

Court to stay its ruling pending appeal so that the issue in this case can be considered and

harmonized by the Fourth Circuit in light of the decree in

Greidinger and p rivacy

concerns not addressed by the Court’s July 20 ruling. 1 Otherwise the Defendants will be

faced with conflicting orders from this Court, one of which orders the confidentiality of

1 The Court’s ruling addresses social security numbers but not other privacy concerns. 2

Case 2:10-cv-00075-RBS -DEM Document 67 Filed 07/25/11 Page 3 of 12 PageID# 602
these Applications and the other w hich orders their public disclosure. The Defendants also present substantive arguments for appeal, including that th e disclosure of th ese Applications would violate the provisions of at least two federal statutes.
The Court has previously noted that this is a case of first impression with potential national ramifications. All th is supports staying this judg ment pending appeal to the Fourth Circuit.
I. FACTS On July 20, 2011, the Court issued a Memorandum Opinion and a Judgm ent Order granting summary judgment to the Plaintiff for the reasons previously stated by the Court. The Court ruled that Virginia C ode § 24.2-444 violates the P ublic Disclosure section of the National Voting Rights Ac t (“NVRA”), 42 U.S.C. § 1973-gg(6)(i)(1), insofar as the state statute requ ires that com pleted Applications be kept confidential in Virginia. The Court found that the Applications are subject to public disclosure under the NVRA, which trumps the state statute under the Supremacy Clause of the Constitution. In its July 20 ruling, the Court granted the Plaintiff prospective relief, ordering the disclosure of all Applications completed from the date of that ruling, but denied any retrospective relief. The denial of retrospe ctive relief was driven s ignificantly by the provision on current A pplications indicating that they will be kep t “confidential.” But now that the Court h as declared that these A pplications are subject to public disclosure, none of Virginia’s current Applications are valid insofar as they contain that disclaimer. By way of background, the Privacy Ac t Notice on cu rrent Applications is mandated by the Consent Order entered into by the plaintiff in Greidinger and the SBE, which under that Order must obtain the consent of the plaintiff in Greidinger, and the
3

Case 2:10-cv-00075-RBS -DEM Document 67 Filed 07/25/11 Page 4 of 12 PageID# 603
Court which entered the Order, before such changes can be made. A copy of the Consent
Order is attached as Exhibit A. Paragraph 6 of the Consent Order requires that the SBE
put a Privacy Act Notice on all Applications. That Notice states, among other things, that
those Applications (called reg istration “cards”) “will not b e open to inspection b y the
public.” See Exhibit attached to Exhibit A hereto.
In order to change these Applications to comply with the Court’s July 20 Order,
the SBE would have to take the following steps:
1. The SBE would have to am end the A pplications authorized by the U. S. Constitution, Article I, Sections 2 and 4, and 42 U.S.C. § 1973gg-4. Th e SBE would also be required by Virginia Constitution Article II, Section 2, and Virginia Code § 24.2-418, to edit the Privacy Act Notice on the applications, which also requires securing approval from the SBE and the DOJ under Section 5 of the Voting Ri ghts Act (42 U.S.C. § 1973c), and the plaintiff in Greidinger v. Davis , Case No. 3:91-CV-00476 (E.D.Va.), who previously objected to m aking any change to that Notice. A copy of the Consent Decree and attached N otice in that litigation are attached as Exhibit A.
2. Consistent with Public Participatio n Guidelines adopted by the SBE in July 2010, SBE staff would request that the Board approve exposing an edited version of the draft applica tion, inviting comments from the public, including the plaintiff in Greidinger, for a period of 30 days.
3. Based on comments received, the S BE would approve a rev ised draft and request the Office of the Attorney General to submit the revised text to the U.S. District Court in the Greidinger case for approval consistent with the terms of the consent decree.
4. After a text was approved by the district court under Greidinger, the SBE would request that the Office of the Attorney General submit that final text for approval to the DOJ under Section 5 of the Voting Rights Act.
5. Once the SBE obtains approval from th e DOJ, contracts to edit and print the new applications would be obt ained following Virginia Public Procurement Act procedures. Base d on recent experi ence with firms
4

Case 2:10-cv-00075-RBS -DEM Document 67 Filed 07/25/11 Page 5 of 12 PageID# 604
under contract to design a nd print such applications , revision and printing would take at least one month to complete.
6. Based on the foregoing, it would take an estim ated six months to rewrite and print these applications, depend ing on the tim e required for district court and DOJ approvals.2
Palmer Decl. ¶¶ 2-7. The estim ated cost fo r printing and distributing an estim ated 1.2 million new Application s is $78,500 . Id. ¶ 8. Given the necessa ry approvals for new Applications, it will be impossible for the SB E to comply with the Court’s July 20, 2011 Order in time for the August 23, 2011 state and local primary elections, or the November 8, 2011 elections for state and local offices. Id. ¶ 9.
The Defendants attempted to obtain a consent order for staying the July 20 ruling, but the Plaintiff was unwilling, m aking this Motion and one for an expedited ruling necessary under the competing deadlines set forth in Rule 62 and Local Rule 7.
II. LEGAL STANDARD District courts must consider four fact ors when considering whether to issue a stay of a judgm ent pending appeal: (1) whet her the stay applicant has m ade a strong showing that the appeal is likely to s ucceed on the merits; (2) whether the applicant will be irreparably injured absent a stay ; (3) whethe r issuance of the stay will subs tantially injure the other parties to the app eal; and (4) where the public interest lies. Hilton, 481
2 It is im possible to calculate the v oter, fiscal and operational im pact of authorizing private party exam ination of official voter registration processes during the critical election preparation phase that begins as the federally m andated 45-day deadline for sending absentee ballots approaches, before an y election. General registrars have time sensitive obligations under federal and st ate laws to process voter registration applications on an expedited basis as soon as the information is received (see 42 U.S.C. § 15483 (a)(vi)). Absentee ballots m ust be sent 45 days before the election or within three business days after receipt if later. 42 U.S.C. § 1973ff-1(a)(8); Va. Code § 24.2-706.
5

Case 2:10-cv-00075-RBS -DEM Document 67 Filed 07/25/11 Page 6 of 12 PageID# 605
U.S. at 776 ; see also Long v. Robinson , 432 F.2d 977, 979 (4th Cir. 1970) . A district court may balance these four factors. See Goldstein v. Miller, 488 F. Supp. 156, 176 (D. Md. 1980), aff'd mem., 649 F.2d 863 (4th Cir. 1981). The firs t two factors are the most important. Nken v. Holder, 129 S.Ct. 1749, 1761 (2009).
III. ARGUMENT A. The Balance of Factors for Considering a Stay under Rule 62 Support
Staying This Judgment During Appeal. 1. The Defendants Will Be Irreparably Harmed Without a Stay. The SBE, in particular, will suffer substantial irreparable harm from the time and expense it will take to dispose of and redo an estimated 1.2 million Applications if this judgment is not stayed. See Palmer Decl. ¶¶ 2-8. As noted, the SBE estimates that it will take half a year to replace these Applications at an estim ated cost of $78,500 . Id. ¶ 8. Given the approvals needed for changing the Applications, including from the DOJ under the Voting Rights Act a nd the plaintiff and the Court under the Greidinger Consent Decree, it will b e impossible for the SBE to comply with the Court’s J uly 20 Orde r in time for Virginia’s August 23, 2011 prim aries or the November 8, 2011 General Election for state and local offices. Id. ¶ 9. By information and belief, it took eight staff persons working for Defendant Long a total of six weeks to gather, redact a nd prepare 6,000 documents under a court order in 2008. The impact the Court’s ruling will have on local Registrars is very significant and will be even m ore so should Applications be de manded for inspection in the weeks leading up to an election.
6

Case 2:10-cv-00075-RBS -DEM Document 67 Filed 07/25/11 Page 7 of 12 PageID# 606
And if the Court’s ruling on this case of first impression is overturned on appeal, all this tim e and expense descri bed above will have been wasted. This prejudices the Defendants and fails to serve the public interest, as discussed further below.
2. The Public Interest Is Better Served by Staying the Judgment. The public interest is better served by stay ing this judgment. This is particularly true given the tim e and expens e of redoing all of Virginia’s Applications, all of which would be wasted if the Court’s July 20 decision is overturned on appeal. Only a stay will serve the public interest in this rega rd, since otherwise the Defendants will be f orced to incur this time and expense of taxpayer dolla rs to comply with the July 20 ruling, given the time before the 2012 elections. A stay will also ensure that there will be no confusion regarding voter registration for the 2011 Virginia primaries and elections. In addition, the Defendants believe there are voter privacy concerns which are not addressed by the Court’s July 20 ruling. In that ruling, the Court did address the concern posed by allowing public disclosure of Social Security Numbers (“SSNs”) on disclosed Applications, by ordering that SSNs be redacted before disclosure. See Mem. Op. at 14. But in their Opposition to Summ ary Judgment, the Defendants no ted other privacy concerns, including the dange r posed by disclosing signature s (which can be used to engage in identify theft), along with sensitiv e information about m ental incapacity and criminal history (also on the Applications), all found on s ingle documents subject to public disclosure under this ruling. See Palmer Opp. to Mot. for Sum . Judg., Docket No. 51 at 9-10. (In addition, Virginia provides th at the addresses of persons such as law enforcement agents or abused spouses m ay also be kept confidential for safety reasons . See Va. Code § 24.2-418.) It is in the public interest to ha ve this judgment stayed so that
7

Case 2:10-cv-00075-RBS -DEM Document 67 Filed 07/25/11 Page 8 of 12 PageID# 607
the issues of public disclosure and privacy can be fully considered and weighed by the Fourth Circuit before any judgment takes effect.
3. The Plaintiff Will Not Suffer Any Appreciable Harm From a Stay. The Plaintiff will not suf fer irreparable harm from a stay. The next nationa l election is more than a year away, and voter registration drives are normally conducted in the months immediately before an election. The Defendants again note that current law still provides that anyone whose Application is rejected be notified of that decision, and prov ides information telling that person how he or she can appeal that de cision to a Virginia circuit court. See, e.g., Long Aff., Docket No. 57, ¶¶ 7-11. U nder current law, the Plaintiff also has access to a list of all rejected applicants whom the Plaintiff can contact at any tim e. Va. Code § 24.2444(A). This enables the Plaintiff to m onitor Application rejections in Virginia during appeal even if the judgment is stayed.
4. The Defendants Have Sound Arguments for Appeal. Regarding the likelihood of success on appeal, the Defendants have presented several arguments that have potential m erit, notwithstanding the Court’s differing opinion. This includes that inform ation contained in these app lications is kept confidential under at least two m ore recent federal statutes, including the Help America Vote Act (“HAVA”), under which the inform ation in provisional ballots, which include these Applications, must be kept c onfidential by loca l election officials. 42 U.S.C. § 15482(a)(5)(B). The Uniformed and Overseas Citizen s Absentee Voting Act’s (“UOCAVA”) requirement under 42 U.S.C. §§ 1973ff-1(e)(6) and (f)(3), regarding the privacy of
8

Case 2:10-cv-00075-RBS -DEM Document 67 Filed 07/25/11 Page 9 of 12 PageID# 608
individual absentee voter info rmation during the application and ballot transmission process, requires that certain information in these Applications must remain confidential during that process (at the very least) as a m atter of federal policy. Under the July 20 ruling, all Applications would be subject to immediate public disclosure upon receipt by a local Registrar once SSNs are rem oved. The Defendants believe this violates provisions in both HAVA and UOC AVA (as am ended by the Military and Overseas Voter Empowerment Act, or “MOVE Act”).
Even if a c ourt is less than certain about a party’s likely success on appeal, th e practical effects of a ruling m ay best be stayed to confirm whether the court’s ruling is correct on appeal, esp ecially if the ruling will have wide-ranging effects like this one. See, e.g., Bragg v. Robertson, 190 F.R.D. 194, 195-96 (S.D.W.Va. 1999)(granting motion to stay a perm anent injunction barring state environm ental regulators from approving further buffer zone variances). For all these reasons, the Court should stay the judgment under the four-part test in Hilton v. Braunskill.
B. The Court Should Stay This Judgme nt In Light of the Conflict Between that Judgment and the Consent Degree in Greidinger.
As noted above, the Consent Decree entered into under the Fourth Circuit’s ruling in Greidinger, 988 F.2d at 1353, mandates the inclus ion of a Privacy Act Notice on the applications which conf licts with th e Court’s J uly 20 rulin g. See Exhibit A ¶ 6 and Exhibit thereto. That Notice states, a mong other things, that voter registration cards (applications) “will not be open to inspection by the public.” Id. Changing such an order would require both approval by the Court and the consent of the plaintiff in that action.
The Defendants ask the Court to stay its ru ling pending appeal so that the issue in this case can be considered and harmonized by the Fourth Circuit on appeal in light of the
9

Case 2:10-cv-00075-RBS -DEM Document 67 Filed 07/25/11 Page 10 of 12 PageID# 609

decree reached in Greidinger. Otherwise th e Defendants will be f aced with conflicting

court orders from this Court regarding thes e Applications. Inde ed, obeying the Court’s

July 20 order would place the SBE in direct violation of the Consent Order in Greidinger.

The Fourth Circuit should have the opportunity to rule on this case bef ore the SBE is

placed in the untenable position of obeying this Court’s ruling which conflicts in any way

with another ruling from this Court, entered pursuant to a Fourth Circuit ruling.

IV. CONCLUSION

For the reasons stated above, the D efendants respectfully ask the Court to stay its

judgment pending appeal.

Respectfully submitted,

DONALD PALMER

Defendant

Stephen

By

/s/

M. Hall, VSB #44132

Attorney for Defendant Palmer

Office of the Attorney General

900 East Main Street

Richmond, Virginia 23219

Phone: (804) 786-1586

Fax: (804) 371-2087

Email: shall@oag.state.va.us

Kenneth T. Cuccinelli, II Attorney General of Virginia

E. Duncan Getchell, VSB # 14156 Solicitor General of Virginia Email: dgetchell@oag.state.va.us

Wesley G. Russell, Jr., VSB # 38756 Deputy Attorney General Email: wrussell@oag.state.va.us

10

Case 2:10-cv-00075-RBS -DEM Document 67 Filed 07/25/11 Page 11 of 12 PageID# 610

Stephen M. Hall, VSB # 44132* Assistant Attorney General III Office of the Attorney General 900 East Main Street Richmond, VA 23219 Phone: (804) 786-1586 Fax: (804) 371-2087 Email: shall@oag.state.va.us
*Counsel of Record

ELISA LONG Defendant

By

/s/

Jeff W. Rosen, Esquire

Virginia Bar No. 22689

Attorney for Elisa Long

Pender & Coward

222 Central Park Avenue

Virginia Beach, Virginia 23462

Phone: (757) 490-6253

Fax: (757) 497-1914

Email: jrosen@pendercoward.com

Lisa Ehrich, Esquire Virginia Bar No. 32205 Attorney for Elisa Long Pender & Coward 222 Central Park Avenue Virginia Beach, Virginia 23462 Phone: (757) 490-6253 Fax: (757) 497-1914 Email: lehrich@pendercoward.com

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Case 2:10-cv-00075-RBS -DEM Document 67 Filed 07/25/11 Page 12 of 12 PageID# 611

CERTIFICATE OF SERVICE
I certify that on this 25th day of July, 2011, I filed with the Court’s ECF system a
true copy o f the forgoing instrum ent, which will then be sent electronically to the
following counsel of record:
Ryan M. Malone, Esquire Augustine M. Ripa, Esquire Jason Gassan Idilbi, Esquire David O. Stewart, Esquire Douglas H. Hallward-Driemeier, Esquire Ropes & Gray LLP 700 12th Street NW Suite 900 Washington, D.C. 20005
Jeff W. Rosen, Esquire Lisa Ehrich, Esquire Pender & Coward 222 Central Park Avenue Virginia Beach, Virginia 23462

Stephen

/s/ M. Hall, VSB #44132 Attorney for Defendant Palmer Office of the Attorney General 900 East Main Street Richmond, Virginia 23219 Phone: (804) 785-1586 Fax: (804) 371-2087 Email: shall@oag.state.va.us

12

Case 2:10-cv-00075-RBS -DEM Document 67-1 Filed 07/25/11 Page 1 of 3 PageID# 612

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

PROJECT VOTE/VOTING FOR AMERICA,

Plaintiff,

v.

Case No. 2:1O-CV-75

ELISA LONG, General Registrar for the City of Norfolk, Virginia, and DONALD PALMER, Secretary of the Virginia State Board of Elections,

Defendants.

DECLARATION OF DONALD PALMER

I, DONALD PALMER, state as follows based upon my personal knowledge and

belief, for my Declaration in this case:

1. I am over 18 years of age. I am the Secretary of the Virginia State Board

of Elections (“SBE”), a position I have held since January 28, 2011. In this position, I

am responsible for overseeing the operations and policies of the SBE.

2. The SBE would have to amend the Virginia Voter Registration

Application (“Application”) authorized by the United States Constitution Article I,

Sections 2 and 4, and 42 U.S.C. § 1973gg-4. The SBE would also be required by Virginia Constitution Article II, Section 2, and Virginia Code § 24.2-418, to edit the
Privacy Act Notice on the Applications, which requires securing approval from the

members of the SBE, the United States Department of Justice (“DOJ”) under Section 5 of

the Voting Rights Act (42 U.S.C. § 1973c), and the plaintiff in Greidinger v. Davis, Case
No. 3:91-CV-00476 (E.D.Va.), who previously objected to making any change to that

Notice. A copy of the Consent Decree in that litigation is attached as Exhibit A.

Case 2:10-cv-00075-RBS -DEM Document 67-1 Filed 07/25/11 Page 2 of 3 PageID# 613
3. Consistent with Public Participation Guidelines adopted by the SBE in July 2010, SBE staff would request that the three-member SBE Board approve publishing an edited version of the draft Application, inviting comments from the public, including the plaintiff in Greidinger, for a period of 30 days.
4. Based on comments received, the SBE would approve a revised draft and request that the Office of Attorney General submit the revised text to the U.S. District Court in the Greidinger case for its approval consistent with the terms of the Consent Decree.
5. After a text was approved by the federal district court under Greidinger, the SBE would request that the Office of the Attorney General submit that final text for approval to the DOJ under Section 5 of the Voting Rights Act.
6. Once the SBE obtains approval from the DOJ, contracts to edit and print the new Applications would be obtained following Virginia Public Procurement Act procedures. Based on recent experience with firms under contract to design and print such Applications, revision and printing would take at least one month to complete.
7. Based on the foregoing, it would take approximately six months to rewrite and print these new Applications, depending on the time required for district court and DOJ approvals.
8. The SBE and applicable voter registration offices across Virginia would also be required to dispose of over a million Applications and stock these offices with new Applications soon before the August 23, 2011 state primaries, and the November 8, 2011 statewide elections, take place. The estimated cost to the SBE for making these
2

Case 2:10-cv-00075-RBS -DEM Document 67-1 Filed 07/25/11 Page 3 of 3 PageID# 614
changes, then printing and distributing an estimated 1.2 million new Applications, is approximately $78,500.
9. Given the required SBE, DOJ and other approvals needed, by law, for changing these Applications, it is impossible for the SBE to comply with the Court’s July 20, 2011 Order in time for the 2011 primaries and elections in Virginia.
10. Based on discussions with General Registrars across Virginia and my observations of election administration processes, the cost of implementing the Court’s July 20, 2011 Order at the local level, to properly copy/scan and redact voter Applications, before new Applications are approved, would have a significant negative impact on election administration. For example, under the July 20 Order, completed Applications would now have to be disclosed. If a county or local registrar office were required to use existing personnel to pull, redact and make copies of current Applications, such a request could jeopardize that county or registrar’s ability to conduct an election if the request came in the weeks leading up to a primary or election.
I state that the forgoing in true to the best of my knowledge, declared and signed
under penalty of perjury under 28 U.S.C. § 1746, on t2 5h_itsh, day of July, 2011.
NALD ALMER
3

 
 Case 2:10-cv-00075-RBS -DEM Document 69 Filed 07/25/11 Page 1 of 6 PageID# 619

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

PROJECT VOTE/VOTING FOR AMERICA,

Plaintiff,

v.

Case

No. 2:10-CV-75

ELISA LONG, General Registrar for the City of Norfolk, Virginia, and DONALD PALMER, Secretary of the Virginia State Board of Elections,

Defendants.

DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR EXPEDITED RULING

The Defendants, Donald Palm er, Secretary of the Virginia State Board of

Elections (“SBE”), and Elisa Long, the Ge neral Registrar for th e City of Norfolk,

Virginia, through counsel, resp ectfully ask the Court for an expedited ruling on their

Motion to Stay Judgment, before the 14-day period passes under Rule 62(a), after which

the Plaintiff could seek to en force the Court’s July 20, 2011 Order. As noted in their

accompanying Motion, this would require entry of a court order staying that judgment by

no later than August 3, 2011, whic h would require m odification of the Court’s norm al

briefing schedule under Local Rule 7.

I. ARGUMENT

The Defendants believe that exped ited consideration is necessary because, absent

a court order, the Court’s July 20, 2011 judg ment will become enforceable after the 14-

day period set forth in R ule 62(a). See, e.g., Mars Steel Corp. v. Continental Bank N.A. , 880 F.2d 928, 937 (7 th Cir. 1989)(judgm ent becomes effective absent entry of a court

Case 2:10-cv-00075-RBS -DEM Document 69 Filed 07/25/11 Page 2 of 6 PageID# 620

order under Rule 62); see also Duncan v. Farm Credit Bank , 940 F.2d 1099, 1103 ( 7th

Cir. 1991); In re Combined Metals Reduction Co., 557 F.2d 179, 188 (9th Cir. 1977).

For all the reasons stated in their Motion to Stay Judgm

ent and their

accompanying Memorandum of Law, the Defenda nts cannot implement the Court’s July

20 ruling immediately because of additional legal requirements placed on the Defendants

regarding Voter Registration Applications (“Applications”), including:

1. The SBE ( which is co mprised of th ree members) would first have to approve a proposed A pplication under relevant Virginia statutes and regulations; then,

2. Consistent with Public Participatio n Guidelines adopted by the SBE in July 2010, SBE staff would request that the Board approve exposing an edited version of the draft applica tion, inviting comments from the public, including the plaintiff i n Greidinger v. Davis , Case No. 3: 91-CV-00476 (E.D.Va.), for a period of 30 days;

3. Based on comments received, the S BE would approve a rev ised draft and request that the Of fice of the Attor ney General subm it the revised tex t both to this Court and the plaintiff in Greidinger for approval under the Consent Decree in that case (a c opy of which is attached to the Memorandum of Law in Support of Motion to Stay Judgment); and

4. After a text was approved by the district court under Greidinger, the SBE, in conjunction with the Office of the Attorney General, would submit that final text for approval to the U.S. Department of Justice under Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c. As stated in the Motion to Stay Judg ment and Memorandum of Law in Support,
this would take approxim ately six m onths to com plete, after which approximately
$78,500 would be spent reprinting a nd stocking new Applications. If the Court’s July 20
ruling is reversed on appeal , all the tim e and money expe nded on these Applications
would be w asted. But because of the need to complete these steps, if at all poss ible,
before the 2012 national electi ons, the SBE would have to be gin this work imm ediately

2

Case 2:10-cv-00075-RBS -DEM Document 69 Filed 07/25/11 Page 3 of 6 PageID# 621

without a stay. Consequently, the Defendant s seek a ruling on their Motion to Stay

Judgment by August 3, 2011, before the July 20 Order can be enforced under Rule 62(a).

The SBE also has no way to comply with the Court’s July 20 Oder in time for the

2011 primaries and state office elections in Virg inia for the reasons stated in the Motion

to Stay and Memorandum of Law. The July 20 Order also violates the provisions in the

Consent Decree in Greidinger, again placing the Defendants in a position where th ey

cannot comply with the July 20 Order without violating another Order from this Court.

The Defendants have endeavored to bri ng this Motion, and their Motion to Stay

under Rule 62(c), as prom ptly as possible give n the availability of Defendants’ counsel

and those parties. The Plaintiff has refuse d to agree to a consent o rder staying the

judgment despite the Court’s earlier statements about such a stay.

II. CONCLUSION

For the reasons stated above, the Defenda nts ask the Court to enter an Order

requiring the com pletion of briefing for the Motion to Sta y Judgment in tim e for the

Court to rule on that Motion by no later than August 3, 2011.

Respectfully submitted,

DONALD PALMER

Defendant

Stephen

By

/s/

M. Hall, VSB #44132

Attorney for Defendant Palmer

Office of the Attorney General

900 East Main Street

Richmond, Virginia 23219

Phone: (804) 786-1586

Fax: (804) 371-2087

Email: shall@oag.state.va.us

3

Case 2:10-cv-00075-RBS -DEM Document 69 Filed 07/25/11 Page 4 of 6 PageID# 622

Kenneth T. Cuccinelli, II Attorney General of Virginia
E. Duncan Getchell, VSB # 14156 Solicitor General of Virginia Email: dgetchell@oag.state.va.us
Wesley G. Russell, Jr., VSB # 38756 Deputy Attorney General Email: wrussell@oag.state.va.us
Stephen M. Hall, VSB # 44132* Assistant Attorney General III Office of the Attorney General 900 East Main Street Richmond, VA 23219 Phone: (804) 786-1586 Fax: (804) 371-2087 Email: shall@oag.state.va.us
*Counsel of Record

ELISA LONG Defendant

By

/s/

Jeff W. Rosen, Esquire

Virginia Bar No. 22689

Attorney for Elisa Long

Pender & Coward

222 Central Park Avenue

Virginia Beach, Virginia 23462

Phone: (757) 490-6253

Fax: (757) 497-1914

Email: jrosen@pendercoward.com

4

Case 2:10-cv-00075-RBS -DEM Document 69 Filed 07/25/11 Page 5 of 6 PageID# 623 Lisa Ehrich, Esquire Virginia Bar No. 32205 Attorney for Elisa Long Pender & Coward 222 Central Park Avenue Virginia Beach, Virginia 23462 Phone: (757) 490-6253 Fax: (757) 497-1914 Email: lehrich@pendercoward.com
5

Case 2:10-cv-00075-RBS -DEM Document 69 Filed 07/25/11 Page 6 of 6 PageID# 624

CERTIFICATE OF SERVICE
I certify that on this 25th day of July, 2011, I filed with the Court’s ECF system a
true copy o f the forgoing instrum ent, which will then be sent electronically to the
following counsel of record:
Ryan M. Malone, Esquire Augustine M. Ripa, Esquire Jason Gassan Idilbi, Esquire David O. Stewart, Esquire Douglas H. Hallward-Driemeier, Esquire Ropes & Gray LLP 700 12th Street NW Suite 900 Washington, D.C. 20005
Jeff W. Rosen, Esquire Lisa Ehrich, Esquire Pender & Coward 222 Central Park Avenue Virginia Beach, Virginia 23462

Stephen

/s/ M. Hall, VSB #44132 Attorney for Defendant Palmer Office of the Attorney General 900 East Main Street Richmond, Virginia 23219 Phone: (804) 785-1586 Fax: (804) 371-2087 Email: shall@oag.state.va.us

6

 
 Case 2:10-cv-00075-RBS -DEM Document 71 Filed 07/25/11 Page 1 of 2 PageID# 631

UNITED STATES DISTRICT COUR EASTERN DISTRICT OF VIRGIN!
Norfolk Division

F\LEL
JUL 2 5 2011

l

PROJECT VOTE/VOTING FOR AMERICA, INC., Plaintiff,

CLERK, US DISTRICT COURT
NORFOLK, VA

v.

Civil No. 2:10cv75

ELISA LONG, in her Official Capacity as General Registrar of Norfolk, Virginia,

and

DONALD PALMER, in his Official Capacity as Secretary, State Board of Elections,

Defendants.

ORDER

On July 25, 2011, the defendants filed a Motion to Stay Judgment,

which requests that the court stay its July 20, 2011, judgment pending

appeal to the Fourth Circuit under Federal Rule of Civil Procedure

62(c). This case now comes before the court on defendants' July 25,

2011, Motion for Expedited Ruling on the Motion to Stay Judgment.

The defendants request an expedited ruling on their Motion to Stay

Judgment before the 14-day period passed under Federal Rule of Civil

Procedure 62(a), after which the Plaintiff may seek to enforce this

court's July 20, 2011 Opinion. 1 In consideration of the need to

expeditiously consider the relief requested, and for good cause

1

The defendants request entry of an order staying judgment by

no later than August 3, 2011.

1

Case 2:10-cv-00075-RBS -DEM Document 71 Filed 07/25/11 Page 2 of 2 PageID# 632

shown, the court DIRECTS that Project Vote must file a response, if

any, on or before July 28, 2011, at 5:00 p.m., and that the defendants must file a reply, if any, on or before July 29, 2011, at 5:00p.m.
The Clerk is DIRECTED to forward a copy of this Order to counsel

for the parties. IT IS SO ORDERED.

Is/
Rebecca Beach Smith Ur.!ted States District Judge~

Norfolk, Virginia July ~S, 2011

REBECCA BEACH SMITH UNITED STATES DISTRICT JUDGE

2

 
 Case 2:10-cv-00075-RBS -DEM Document 73 Filed 07/28/11 Page 1 of 12 PageID# 637

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

PROJECT VOTE/VOTING FOR AMERICA, INC. 737 ½ 8th St SE Washington, DC 20003
Plaintiff,
v.
ELISA LONG, In Her Official Capacity as General Registrar of Norfolk, VA City Hall Building, Room 808 810 Union Street Norfolk, VA 23510
DONALD PALMER, In His Official Capacity as Secretary, State Board of Elections, Washington Building, First Floor 1100 Bank Street Richmond, VA 23219
Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO.: 2:10cv75 ) )
)
) )
)
)
)
)
)
)
)

PLAINTIFF PROJECT VOTE’S OPPOSITION TO DEFENDANTS’ MOTION FOR STAY PENDING APPEAL INTRODUCTION
During more than two years of requests to the Commonwealth and litigation in this Court, Plaintiff Project Vote has been seeking access to voter registration applications in Virginia under the National Voter Registration Act (“NVRA”). The Court recognized Project Vote’s right to access voter registration applications under the NVRA’s Public Disclosure Provision, 42 U.S.C. § 1973gg-6(i), when it denied Defendants’ motion to dismiss, and now the Court has

Case 2:10-cv-00075-RBS -DEM Document 73 Filed 07/28/11 Page 2 of 12 PageID# 638
granted summary judgment to Project Vote. Op.11, ECF No. 63. Defendants now ask the Court to stay its judgment under Federal Rule of Civil Procedure 62(c) for an indefinite time while they appeal the Court’s decision. The Court should deny this stay because Defendants have not demonstrated that they are entitled to a stay. To the contrary, staying the Court’s decision will prevent Project Vote from having access to voter records for the entire pendency of the appellate process, which could last a year or more. With a national election looming next fall, it is critical that Project Vote have access to the records to which the Court has found it is entitled.
Moreover, the length of stay requested by Defendants does not comport with their excuses about why they cannot comply with the Court’s order. Defendant Donald Palmer has stated in an affidavit that Defendants can comply with the Court’s order to produce records within six months. Decl. of Donald Palmer ¶ 7, ECF No. 67-1. The disconnect between the six months supposedly needed to comply with the Court’s order and the long stay requested provides another reason for the Court to deny Defendant’s motion.
Finally, the Court in its summary judgment order already weighed the public interest in this case and concluded that, while retrospective application of an injunction would require the production of registration records that were filled out by individuals who believed that those records would be kept confidential, a prospective injunction requiring the production of voter registration applications created after July 20, 2011, was in the public interest and did not raise confidentiality concerns. Op.11-15. By staying this case, the Court will allow Defendants to maintain the language of the current voter registration form, which misstates the law by informing Virginians that their registration applications will be kept secret. The plain language of the NVRA requires disclosure of voter registration applications, as this Court has recognized,
2

Case 2:10-cv-00075-RBS -DEM Document 73 Filed 07/28/11 Page 3 of 12 PageID# 639
and it is time for the Commonwealth of Virginia to change its practices to conform to that federal requirement.
ARGUMENT I. The Court Should Not Stay Its Order Pending Appeal.
Defendants’ motion fails to meet their heavy burden to show that a stay is warranted. See Nken v. Holder, 129 S. Ct. 1749, 1761 (2009); Bragg v. Robertson, 190 F.R.D. 194, 196 (S.D. W. Va. 1999) (movant has a “heavy burden under Rule 62(c)”). See also Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, § 2904 (2d ed. 1995) (“Because the burden of meeting this standard is a heavy one, more commonly stay requests will not meet this standard and will be denied.”). In considering whether Defendants have shown that a stay is warranted, the court should examine each of the following factors: (i) whether Defendants have made a “strong showing” that they are likely to succeed on the merits on appeal; (ii) whether Defendants will suffer irreparable harm without a stay of the ordered relief; (iii) whether issuance of the stay will substantially injure Project Vote; and (iv) whether the public interest lies in favor of granting the stay. See Hilton v. Braunskill, 481 U.S. 770, 776-777 (1987) (citations omitted); Long v. Robinson, 432 F.2d 977, 979 (4th Cir. 1970); Columbus-Am. Discovery Group, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, No. 87-363-N, 2011 WL 2638160, at *3 (E.D. Va. June 15, 2011). In the Fourth Circuit, Defendants must establish that all four prongs weigh in their favor. Citifinancial, Inc. v. Lightner, No. 5:06CV145, 2007 WL 3088087, at *4 (N.D.W.Va. Oct. 22, 2007) (“Robinson, which is the law of the Fourth Circuit and to which this Court is bound, presents the test as four separate criteria—all of which must be met before a court may grant a stay—not as a balancing of the equities test.”); accord Robinson, 432 F.2d at 979; In re Garcia, 436 B.R. 825, 829 (W.D. Va.
3

Case 2:10-cv-00075-RBS -DEM Document 73 Filed 07/28/11 Page 4 of 12 PageID# 640
2010) (“[F]ailure to satisfy all four requirements is fatal to a movant’s request for a stay pending appeal.”) (citing Winter v. Natural Res. Defense Council, Inc., 555 U.S. 7 (2008)). But even if the test required balancing, rather than satisfying, all four considerations, an analysis of the four prongs weighs against staying this Court’s order.
A. Defendants Are Not Likely To Prevail On Appeal Because This Court’s Ruling That The NVRA Affords Project Vote Access To Registration Records is Supported By The Statute’s Plain Language.
Defendants must make a “strong showing” that they are likely to prevail on appeal, Hilton, 481 U.S. at 776, not just that their chances of success are “‘better than negligible.’” Nken, 129 S. Ct. at 1761 (quoting Sofinet v. INS, 188 F.3d 703, 707 (7th Cir. 1999)). This first prong of the test is not satisfied here because Defendants are unlikely to prevail on appeal, since the Court’s decision was based on repeated, careful analysis of the NVRA’s plain language and established canons of statutory interpretation. See Robinson, 432 F.2d at 980 (concluding that the moving party was unlikely to prevail where “[a]ll of the legal authorities which the parties claim are pertinent to the litigation were considered by the district judge and appear to have been correctly applied”). Indeed, the Court had at least two occasions to consider whether the records at issue were covered by the NVRA—once on the motion to dismiss and once on summary judgment—and it concluded both times that the plain language of the statute supported Project Vote’s position.
Defendants, of course, disagree with the Court’s ruling, but they have not demonstrated why an appellate court is any more likely to rule for them than this Court was. In granting summary judgment in favor of Project Vote, this Court again considered Defendants’ arguments before reiterating its plain-meaning analysis of the NVRA’s statutory language. See Op.7-8 (citing Project Vote/Voting for America, Inc. v. Long, 752 F. Supp. 2d 697, 706, 708-09 (E.D.
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Va. 2010). The Court should not second-guess its ruling simply because Defendants have expressed their intention to raise their arguments on appeal. See, e.g., Columbus-Am. Discovery Group, Inc. v. Unidentified, Wrecked & Abandoned Sailing Vessel, 2011 WL 2638160, at *3 (“[T]he court finds that there is little likelihood that … [plaintiff] will succeed on the merits, for the reasons enumerated in this court’s April 22, 2011, and June 15, 2011, Orders.”); Mylan Labs., Inc. v. Leavitt, 495 F. Supp. 2d 43, 48 (D.D.C. 2007) (finding a failure to show probable success on appeal where “[t]he plaintiff fails to argue that an intervening change of law or some other circumstance compels this court to revisit its prior conclusion”); Staley v. Harris County, 332 F. Supp. 2d 1041, 1043 (S.D. Tex. 2004) (denying motion to stay under similar four-part test where the moving party “merely incorporates the arguments and authorities raised during and after trial … [after the court’s opinion] … explained in detail why none of those arguments presented a substantial case on the merits”); United States v. Judicial Watch, Inc., 241 F. Supp. 2d 15, 16 (D.D.C. 2003) (finding failure to show a likelihood of success on the merits because “respondent has offered no new arguments in its motion, but rather it rehashes arguments that have been rejected in multiple forums” (footnote omitted)); Schwartz v. Dolan, 159 F.R.D. 380, 383-84 (N.D.N.Y. 1995) (“For the reasons stated in the … [prior] Order, the court concludes that defendant does not and cannot demonstrate a likelihood of success … [m]ere repetition of arguments previously considered and rejected cannot be characterized as a ‘strong showing’ [under Hilton].”).1
1 In addition to determining that the plain language of the NVRA required disclosure of the records sought by Project Vote, the Court also considered and rejected Defendants’ arguments that the MOVE Act and HAVA prohibit disclosure of voter registration records. In concluding that the statutes “‘are capable of co-existence,’” Op.9-10 (quoting Morton v. Mancari, 417 U.S. 535, 551 (1974)), the Court relied on a plain language interpretation of each statute. Id. at 8-9.
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When it concludes that a party is unlikely to prevail on appeal, a court should not hesitate to deny the motion for a stay. Bragg, 190 F.R.D. 194, cited by Defendants, does not alter this central principle. In Bragg, although the “four factors militate[d] in favor of denying a stay,” the court chose to set aside its ruling in light of “dire predictions” of “unprecedented economic and social dislocation” resulting from the court’s decision. Bragg, 190 F.R.D. at 196 (describing the “firestorm reaction” and “shrill atmosphere of discord” following the injunction as coal workers were laid off and the Governor ordered the State to budget-cut). The Bragg court also found that the community reaction to its decision could be so severe as to distract the appellate court from the legal issues. See id. (finding it “preferable to attempt to defuse invective and diminish irrational fears [by granting the stay] so that reasoned decisions can be made with all deliberate speed, but with distractions minimized.”). While Defendants’ stated estimate of $78,000 to comply with the Court’s order is not insignificant, this case is plainly different from Bragg, and there is no reason for the Court to abandon the four-prong analysis.
B. Defendants’ Economic And Administrative Burdens In Complying With The Court’s Order Do Not Rise To The Level Of Irreparable Harm.
“[M]ere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough” to satisfy the “irreparable harm” prong of the Rule 62(c) test. Robinson, 432 F.2d at 980 (quoting Virginia Petroleum Jobbers Ass’n v. Fed. Power Comm’n, 259 F.2d 921, 925 (D.C. Cir. 1958)). For example, in Mowbray v. Kozlowski, the court found that the Commonwealth of Virginia would not suffer irreparable harm by complying with an order enjoining the state from using excessively restrictive metrics for determining Medicaid eligibility. 725 F. Supp. 888, 890-81 (W.D. Va. 1989). The Commonwealth had claimed that denial of the stay would result in economic and administrative costs that could detract from its obligations to other citizens. Id. at 890. The court held, though,
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that a government entity’s expected economic burden in complying with a court order did not qualify as irreparable harm. Id. at 891.
Similarly, in Long v. Robinson, the Fourth Circuit held that the defendant, the city of Baltimore, did not suffer irreparable harm in having to construct public facilities and hire employees to staff juvenile adjudication and detention facilities so that minors between the ages of sixteen and eighteen were no longer tried as adults for criminal violations, even though those expenditures “would prove unnecessary and would not be reimbursable if the order is reversed on appeal.” 432 F.2d at 978-79. Here, Defendants’ claimed injury is similar to that of the city of Baltimore in Robinson and the Commonwealth of Virginia in Mowbray. Administrative steps such as obtaining records, hiring personnel to transmit files, and responding to inquiries are all steps that must be taken to comply with the Court’s order.
Defendants’ repeated mentions of the consent decree in Greidinger v. Davis, 988 F.2d 1344 (4th Cir. 1993), are nothing more than a diversion. Defendants claim that, without the requested stay, they will be faced with “conflicting” court orders in light of the consent decree approved by the district court in Greidinger. As an initial matter, consent orders are merely court-approved agreements between parties to a dispute, are not precedential, and cannot place the State in a position of conflict with this Court’s judgment. See, e.g., Baptist Mem’l Hosp.— Golden Triangle v. Sebelius, 566 F.3d 226, 230 (D.C. Cir. 2009) (stating that a “settlement does not create binding precedent” (citation omitted)); High Country Home Health, Inc. v. Thompson, 359 F.3d 1307, 1314-15 (10th Cir. 2004) (stating that “settlement agreements have no precedential weight”).
In an attempt to puff up the significance of the consent decree in Greidinger, Defendants suggest it was entered into, ruled upon, or enforced by the Fourth Circuit. Defs.’ Mem. In Supp.
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Case 2:10-cv-00075-RBS -DEM Document 73 Filed 07/28/11 Page 8 of 12 PageID# 644
of Mot. To Stay J. 9-10, ECF No. 67. But the face of the order shows this is incorrect—the decree is an agreement between the parties in Greidinger to resolve their dispute, signed by the Honorable James R. Spencer of the Eastern District of Virginia. See Notice of Filing, Ex. A, ECF No. 70, “Consent Decree.” The Fourth Circuit’s holding in Greidinger was that the public disclosure of one’s Social Security Number (“SSN”) as a prerequisite to register to vote in Virginia was an unconstitutional infringement on the right to vote. See Greidinger, 988 F.2d 1344. Throughout this litigation, Project Vote has respected that holding and sought records with the SSNs redacted. The Court’s order was also consistent with this principle. Op.10-15. Therefore, nothing in this Court’s judgment is inconsistent with the Fourth Circuit’s decision in Greidinger—if anything, it reinforces that decision.
Finally, Defendants claim that complying with the Court’s order will require them to change the Privacy Act notice that was approved in the Greidinger consent decree and thus place them in “conflict” with the text of the order. It is true that the notice must be altered to reflect a correct statement of the law, given this Court’s decision, but there is nothing in the consent order that prohibits that alteration.2 Indeed, the very text of that order contemplates that the Privacy Act notice may be revised. See Consent Decree ¶ 6 (“Any future revisions to the … [Privacy Act notice] shall comply with the Privacy Act and be consistent with the decision of the United States Court of Appeals in this case.”). The state can simply revise the notice to inform voters that the registration card will be available to the public, with SSNs redacted.
C. Project Vote Will Be Harmed By A Stay. Granting Defendants’ motion would eviscerate the court’s decision by denying Project Vote all forms of injunctive relief pending appeal. Project Vote has been waiting for two and a
2 Even if language in the consent decree did prohibit changing the notice, this Court’s decision would trump the agreement between the Greidinger parties.
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half years for recognition of its statutory right to access voter registration records. As the 2012 election approaches, Project Vote wishes to take advantage of its statutory right to access registration materials. The Court has already determined not only that Project Vote has a right to these records, but that it is in the public interest for Project Vote to access them.
Moreover, Project Vote acts on behalf of disenfranchised individuals to ensure that their voter registration applications are not wrongfully or unfairly rejected. Citizens of the Commonwealth will continue to submit voter registration applications during the pendency of this appeal, and a stay would render the effect of the Court’s decision meaningless pending a lengthy appeals process. If the Court’s order is stayed, Virginians will continue to be misinformed by the Commonwealth about the confidentiality of their voter registration applications for an indefinite period of time. One federal election has already occurred during the pendency of this litigation, and Project Vote should be granted immediate access to new voter registration applications to ensure that it can participate fully in registration activities related to the next federal election.
D. The Public Interest Weighs In Favor of Denying This Motion To Help Ensure An Accurate And Inclusive Voting Process.
When evaluating the propriety of permanent injunctive relief, the Court determined that the public interest weighs in favor of granting Project Vote prospective injunctive relief and access to registration records. Op.14 (“The public interest will be served if Defendants are permanently enjoined from refusing to permit inspection and photocopying of completed voter registration applications with the voters’ SSNs redacted to the extent such applications are
9

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completed subsequent to final judgment in this case.” (footnote omitted)). Defendant’s motion asks the Court to re-think the carefully struck balance of its decision.3
Indeed, staying relief here would cause substantial harm to the public interest in assuring the accuracy and currency of official voting records. The NVRA reflects this critical interest by citing the important goals of increasing voter registration and protecting the integrity and accuracy of the voting process. See 42 U.S.C. § 1973gg(b). In the words of the Court, the statutory purposes “point toward increasing voter registration and ensuring that the right to vote is not disrupted by illegal and improper impediments to registering to vote or to casting a vote.” Project Vote, 752 F. Supp. 2d at 710. Staying prospective relief pending appeal could deprive many newly registered voters of the benefit of an accurate, inclusive electoral process. For these reasons, Defendants’ motion is not in the public interest or consistent with the purposes of the NVRA in ensuring the integrity of Virginia’s voting process. II. By Defendants’ Own Admission, They Can Comply with the Court’s Order Within
Six Months, and Thus an Indefinite Stay is Unnecessary. As discussed above, all relevant considerations weigh against granting Defendants a stay of any length. Additionally, by their own admission, the indefinite stay Defendants request is unnecessarily broad in scope. Defendants state that it will take them only six months to make the needed changes to the pre-printed voter registration applications and comply with the Court’s order. Defs.’ Mem. in Supp. of Mot. to Stay J. 1-2. But Defendants have requested a stay pending the entire appellate process. Any stay longer than six months does nothing to address
3 Defendants suggest that Project Vote has acted contrary to the Court’s statements about confidentiality by refusing to agree to a stay, see Defs.’ Mem. in Supp. of Mot. for Expedited Ruling 3, ECF No. 69, but Project Vote believes the Court chose to alleviate its concerns by granting only prospective injunctive relief.
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the harms that Defendants claim they face, and thus such a stay unquestionably fail to satisfy the four-prong standard for granting a stay.
In fact, the actual length of a stay could stretch well into 2012—perhaps even past the 2012 federal elections. It is unclear whether the Defendants intend to begin their efforts to comply with the Court’s order (which they say will take six months) if a stay is granted. But if they do not, this means that the Defendants are effectively asking for a stay not only for the entirety of the appellate process, but for another six months after its conclusion. The Court should deny this request.
CONCLUSION For the foregoing reasons, Defendants’ Motion to Stay Judgment should be denied.
Respectfully submitted,
/s/ Ryan M. Malone Ryan M. Malone (VA Bar # 48526) Augustine M. Ripa (VA Bar #77244) David O. Stewart (admitted pro hac vice) Douglas H. Hallward-Driemeier (admitted pro hac vice) ROPES & GRAY LLP 700 12th Street NW, Suite 900 East Washington, DC 20005 TEL: 202-508-4669 FAX: 202-383-8322 Ryan.Malone@ropesgray.com Counsel for Plaintiff Project Vote/Voting for America, Inc.
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Case 2:10-cv-00075-RBS -DEM Document 73 Filed 07/28/11 Page 12 of 12 PageID# 648 CERTIFICATE OF SERVICE
I hereby certify that on the 28th day of July, 2011, I electronically filed the foregoing pleading with the Clerk of Court using the CM/ECF system, which will send a notification of such filing to all counsel of record.
_/s/___ Ryan M. Malone _____ Ryan M. Malone
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 Case 2:10-cv-00075-RBS -DEM Document 74 Filed 07/29/11 Page 1 of 11 PageID# 649

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

PROJECT VOTE/VOTING FOR AMERICA,

Plaintiff,

v.

Case

No. 2:10-CV-75

ELISA LONG and DONALD PALMER,

Defendants.

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO STAY JUDGMENT

The Court should reject Project Vote’s arguments and stay this judgment pending

appeal for the followin g reasons: (1) the Fourth Circuit’s decision in Robinson does not

require a party to prevail under all four prongs of the test for a stay of judgm ent; (2) the

Defendants will face clear and significant prejudice if the ruling is not stayed, while

Project Vote will face far les s prejudice (if an y) if the s tatus quo is preserved; (3) the

Defendants have raised signifi cant issues for ap peal, which are described in som e added

detail below; (4) the public interest will be served by a s tay, including because of

unaddressed privacy concerns that could chill voter registration; and (5) it is approp riate

to stay a judgment which may conflict with another.

I. ARGUMENT

A. The Fourth Circuit ’s Holding in Robinson Does Not Require a Party to Show Likelihood of Success Under All Four Parts of the Test for Staying A Judgment.

Project Vote misconstrues the Fourth’s Circuit’s 1970 ruling in Long v. Robinson, 432 F.2d 977 (4 th Cir. 1970), which does not mandate that a moving party prevail on all

four parts of the test in Hilton v. B raunskill, 481 U.S. 770 (1987). In fact, the F ourth

Case 2:10-cv-00075-RBS -DEM Document 74 Filed 07/29/11 Page 2 of 11 PageID# 650
Circuit in Robinson states at the end of that opinion that the decis ion was reached “under a balancing of the factors . . .” 432 F.2d at 981. The Plaintiff even concedes in its Opposition that a balan cing may be required. Opp. at 4 (“even if th e test required balancing . . .”).
In support of this must-win-all-four-e lements view, Project Vote cites an unreported district court case and a bankruptcy case 1 while dis regarding a repo rted district court decision already cited by the Defendants,2 which granted a stay of judgment by balancing these factors, and which was affirmed (without opinion) by the Fourth Circuit. See Goldstein v. Miller , 488 F. Supp. 156, 176 ( D. Md. Apr. 25, 1980) , aff'd mem., 649 F.2d 863 (4th Cir. 1981). In Miller, the court balanced the four factors under Hilton when imposing a stay on a judgm ent in a case challenging a federal liquor regulation. Importantly, the Miller court applied the test from Robinson. 488 F. Supp. at 172. This Court should follow Miller and stay the judgment here pending appeal.
Even applying the all-four-parts stan dard, the Court should s till grant the Motion on these facts and for the reasons s tated here and in the Defendants’ Mem orandum of Law in Support.

1 The first case cited by Project Vote, CitiFinancial, Inc. v. Lightner, 2007 U.S. Dist.

LEXIS 78647, *5 (N.D.W .Va. Oct. 22, 2007), sim ply states that Robinson requires

success under all four elem ents without any analysis to support that conclusion. The

second is a bankruptcy case, Garcia v. Direct Fin. Se rvs., LLC (In re Garcia) , 436 B.R.

825, 829 (Bankr. W .D.Va. 2010), which relies on a district court case from another

jurisdiction to apply the standard in Winter v. NRDC, Inc., 555 U.S. 7 (2008), to m otions

to stay a ruling pending appeal. 436 B.R.

at 827. The Defendants believe it is

inappropriate to apply the new, higher standard in Winter to post-judgment motions like

this one which seek to simply preserve the status quo in a case of first impression.

2 See Defendants’ Memorandum of Law in Support at 6.

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B. The Prejudice To The Defendants, If A Stay Is Not Imposed, Is Undeniable, While The Harm To Projec t Vote Is Minimal At Best. The Burden Of Redacting And Producing Potentially All Applications in Virginia Would Be Enormous And Would Threaten the Administration Of Virginia Elections.
If a stay is not im posed, the prejudice to the Defendants is undeniable while the “prejudice” to Project Vote is minimal, at best. The Defendants have demonstrated that it will take at leas t half a yea r of effort to change its Voter Regis tration Applications (“Applications”), all of which will be wasted if the Court’s ruling of first impression is overturned.
But the pre judice facing the Def endants is n ot merely the threa tened loss of significant time and taxpayer m oney: it is the th reat this poses to the administration of Virginia primaries and elections. If a stay is not imposed, not only will Virginia officials have to expend significant time and resources to redo ove r 1 million Applications, they will be faced with changing th ese Applications in the m onths leading into a natio nal election, then devoting very lim ited staff resources to redact inform ation from post-July 20, 2011 Applications demanded by Project Vote or others.
As noted, the tim e and resources expe nded by Defendant Long’s office in 2008 required six staff people eight weeks to gather, redact and produce 6,000 Applications. Mem. of Law in Supp. at 6. Under the Court’s ruling, groups like Project Vote or any individual in Virginia could demand copies of all Applications completed after July 20, 2011, which will lik ely total m ore than 1 million for the upcom ing national election, based on prior years. T he time and resources required for such redaction and production would severely jeopardize the ability of Virginia Registrar’s to function in the wee ks or months leading up to the 2012 national election.
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Meanwhile, all rejected applicants in Vi rginia already receive notice on how to appeal those denials to a Virginia circuit court, and Project Vote has full access to a list of all such rejected applicants under Virginia Code § 24.2-444(A). This provides Project Vote ample opportunity to monitor the application process in Virginia, and to contact any and all rejected applic ants they like, who can seek redr ess in a state co urt under current law. This strongly favors granting a stay to preserve the status quo during appeal when balancing the respective hardship of the parties.
C. The Defendants Have A Strong Case For Appeal, Which Meets The Fourth Prong For Granting A Stay. 1. The Court Does Not Have To Second-Guess Its Ruling To Stay It.
With regard to success on the m erits, the Defendants note that a Court does not need to second-guess itself to grant a motion for a stay of judgm ent. The court in Miller relied on two well-reasoned decisions, includi ng one from the D.C. Circuit, which held that courts should balan ce the four factors under Hilton, then require only a significant issue for appeal if the equities otherwise support a stay.
In Miller, the court noted that when a cour t considers likelihood of success on appeal, that “does not m ean that the tr ial court needs to change its m ind or develop serious doubts concerning the correctness of its decision in order to grant a stay pending appeal.” 488 F. Supp. at 172. The court then cited the well-reasoned D.C. Circuit decision in Washington Metropolitan Area Transit Com. v. Holiday Tours, Inc., 559 F.2d 841, 843-45 (D.C. Cir. 1977) , where the court denied a litigan t’s request to lift the stay placed on a judgment by a district court. The D.C. Circuit held:
[W]hen confronted with a case in wh ich the o ther three factors strongly favor interim relief [a court] may exercise its discretion to grant a stay if the movant has m ade a substantial case on the merits. The cour t is not
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required to find that ultim ate success by the movant is a m athematical probability, and indeed, as in this case, may grant a s tay even though its own approach m ay be contrary to movant’s view of the m erits. The necessary “level” or “degree” of possibility of success will vary according to the court’s assessment of the other factors.

* * *

Prior recourse to the initia l decision-maker would hardly be required as a general matter if it could properly grant interim relief only on a prediction that it has rendered an erroneous decision. What is fairly contemplated is that tribunals may properly stay their own orders when they have ruled on an admittedly difficult legal ques tion and when the equ ities of the cas e suggest that the status quo should be maintained.

Miller, 488 F. Supp. at 172-73 (emphasis added). Th at is the situation here: the Court

realizes that this is a case of first impression, with challenging legal questions warranting

review. And here, the Defendants have dem onstrated that the equities favor a tem porary

stay pending appeal.

The Miller court then cited another decision, Evans v. Buchanan , 435 F. Supp.

832, 843-44 (D. Del. 1977), involving school desegregation, which held:

According to the test accepted by v irtually all courts, including this one, one seeking a stay pending appeal on disposition of writ of certiorari must make “a strong showing that he is lik ely to succeed on the m erits of the appeal.” Reserve Mining Co. v. United States , supra (8 Cir.), 498 F.2d (1073) at 1076. Although th is standard is sim ilar to one of the tests for issuance of a prelim inary injunction, the posture of a case is significantly different when preliminary injunctive relief is sought fr om when a stay is requested. In the former, the Court has not ruled on the merits of the case and need only m ake an initial determ ination of the reasonable probability of the applicant' s eventual succ ess. (Citation omitted). In the latter, th e Court has issued its determ ination, after a full cons ideration of the merits. The above-quoted standard would seem to require that a district court confess to having erred in its ruling before issuing a stay.

It seems illogical * * * to require th at the court in effect conclude that its

original decision in the m atter was wrong before a stay can be issued.

Rather, a stay may be appropriate in a case where

the threat of

irreparable injury to the applicant is immediate and substantial, the

appeal raises serious and difficult qu estions of law in an area where the

5

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law is somewhat unclear and the interests of the other parties and the public are not harmed substantially . This is not to say, however, that every time a case presents difficult questions of law a stay should be entered. As noted earlier, the four fact ors must be viewed together and the interest of the m ovant balanced agai nst the in terests of the other parties and the public. It is the duty of the court to exerci se its discretion so th at an equitable resolution is achieved. * * * (Footnotes omitted). Miller, 488 F. Supp. at 173 (emphasis added). Under the sound analysis in these decisions and Miller, the Court need not conclude that it was inc orrect to grant a stay, or that it is convin ced the Defendants will prevail on appeal. Rather, th e Court need only conclude that the Defendants raise a substantial argument on appeal and show real likelihood of harm without a stay. The fact that this is a case of first impression can suffice for m eeting this prong of the four-part test. See, e.g., Center for In ternational Environmental Law v. Office of U.S. Trade Representative, 240 F. Supp. 2d 21, 22 (D.D.C. 2003).
2. There Is Clear Conflict Between This Ruling And Two Statutes. As noted previously, the Court’s July 20 ruling conflicts with provisions both in the Help Am erica Vote Act (“HAVA”) and in the Uniform ed and Overseas Citizens Absentee Voting Act’s (“UOCAVA”), as am ended by the Military and Overseas Voter Empowerment (“MOVE”) Act in 2009. For ex ample, and to provide som e additional detail, UOCAVA and implementing Virginia statutes allow eligible military and overseas voters to use a single com bined form to register, request an absentee ballot, and in some cases vote their ballot, all in one transaction using for ms available through the Federal Voting Assistance Prog ram.3 These f orms, called the Federal Post Card Applica tion
3 Va. Code §§ 24.2-419, 24.2-441, 24.2-443.2, 24.2-701(B)(2), 24.2-702.1, 24.2-703; 1 VAC 20-40-80 (preclearance pending); 42 U.S.C. § 1973ff-1(a)(3) and (4).
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(“FPCA”) and the Federal W rite-In Absentee Ballot (“F WAB”),4 were created as a remedy to alleviate the difficulties that overseas and military voters have in registering to vote, applying for absentee ballots, and voting absentee.
Put simply, this Court’s July 20 ruling requires Virginia to violate UOCAVA by disclosing Voter Registration Applications contained within FPCA and FWAB forms. As amended by the MOVE Act, UOCAVA e xpressly requires states to protect the security and the privacy of the “identity and other personal data” of all voters eligible to register and vote by m ail under that statute. See 42 U.S.C. § 1973ff-1(e)(6) and (f)(3) (emphasis added).5 This protection extends not only from the tim e of application to register but up to and includi ng the transm ission of a ballot to the vo ter. Clearly a registration Application com bined with a voter ballot cannot be released without violating a voter’s fundamental right to ballot secrecy.
For these reasons, and for the statutory construction reasons raised by Defendant Long in her Opposition to Mo tion for Summ ary Judgment, the Defend ants have raised significant issues for appeal, meeting the fourth prong of the test under Hilton.
4 The FWAB is a back-up ballot to the regula r state-designed absentee ballot that allows the eligible voter to write in their choice(s) on the ballot form. It is designed for use when the regular state absen tee ballot is not r eceived by the voter on tim e. The FW AB also includes a voter registration application called a voter declaration. 5 The MOVE Act not only applies to for ms such as the FPCA and the FW AB; it applies to “any otherwise valid voter registration application and absentee ballot application from an absent uniformed services voter or overseas voter.” 42 U. S.C. § 1973ff-1(a)(2). The Virginia-specific Voter Registration Applications would fall under the definition in 42 U.S.C. 1973ff-1(a)(2) and thus, like the FW AB and FPCA, would fall under the privacy protections mandated by UOCAVA. In practice, Virginia’s eligible military and overseas voters use the federal for ms (FPCA and FWAB) and the Virgin ia-specific Voter Registration Application when registering to vote.
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D. The Public Interest W ould Be Se rved By A Stay, Including To Address Additional Voter Privacy Concerns.
Because of the enorm ous time it would ta ke for Virginia election of ficials to comply with the July 20 order (collecting, redacting and producing all Applications in Virginia), the public interest is best served by staying this judgment to avoid significant or severe interference to Virg inia elections. T he public interest is al so best served by avoiding the expenditure of the time and resources which will be wasted if this ruling is overturned on appeal.
The Defendants again note their serious concerns about the chilling ef fect this ruling may have on voter registration, since un der this ruling, a voter ’s signature would be subject to public dis closure, and signatures can be used for identity theft. Making a person’s mental incapacity and criminal hist ories also publicly available, all on a single document, is also likely to chill voter registration. If the Court stays its ruling, the Fourth Circuit can further co nsider all the interests involved he re, including registration transparency and the voter privacy concerns noted here and in other filings.
E. The Greidinger Consent Order Is No “Diversion”: Conflicting Judgments Support Staying A Ruling During Appeal.
The Plaintiff incorrectly states that the conflict between this Court’s judgment and the Consent Order in Greidinger is a “diversion.” Opp. at 7. It is not. Where a court is concerned about the possibility of conflicting judgm ents, it is perfectly appropriate to stay one of those judgm ents. See Arlington Industries, Inc. v. Bridgeport Fittings, Inc. , 2010 U.S. Dist. LEXIS 21426, at *16-21 (M.D .Pa. March 9, 2010)(staying injunction pending appeal due to concern about conflicting judgments).
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The Fourth Circuit should have the oppor tunity to determ ine whether the only

rationale behind the b road confidentiality placed on Application s in Greidinger is the

issue of Social Security Num bers (“SSNs”). Since those co uld have been redacted when

the Consent Order was entered (as the Court has ordered here), it is not clear that SSNs

were the only factor supporting the broad confidentiality mandated under the Consent

Decree. In order to avoid th e effects of conflicting judgm ents, the Court should stay its

July 20 ruling pending appeal. Id.

II. CONCLUSION

For the reasons stated above and in th e earlier-filed Mem orandum of Law, the

Court should grant the Motion to Stay Judgment pending appeal.

Respectfully submitted,

DONALD PALMER

Defendant

Stephen

By

/s/

M. Hall, VSB #44132

Attorney for Defendant Palmer

Office of the Attorney General

900 East Main Street

Richmond, Virginia 23219

Phone: (804) 785-1586

Fax: (804) 371-2087

Email: shall@oag.state.va.us

Kenneth T. Cuccinelli, II Attorney General of Virginia

E. Duncan Getchell, VSB # 14156 Solicitor General of Virginia Email: dgetchell@oag.state.va.us

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Wesley G. Russell, Jr., VSB # 38756 Deputy Attorney General Email: wrussell@oag.state.va.us
Stephen M. Hall, VSB # 44132* Assistant Attorney General III Office of the Attorney General 900 East Main Street Richmond, VA 23219 Phone: (804) 786-1586 Fax: (804) 371-2087 Email: shall@oag.state.va.us
*Counsel of Record

ELISA LONG Defendant

By

/s/

Jeff W. Rosen, Esquire

Virginia Bar No. 22689

Attorney for Elisa Long

Pender & Coward

222 Central Park Avenue

Virginia Beach, Virginia 23462

Phone: (757) 490-6253

Fax: (757) 497-1914

Email: jrosen@pendercoward.com

Lisa Ehrich, Esquire Virginia Bar No. 32205 Attorney for Elisa Long Pender & Coward 222 Central Park Avenue Virginia Beach, Virginia 23462 Phone: (757) 490-6253 Fax: (757) 497-1914 Email: lehrich@pendercoward.com

10

Case 2:10-cv-00075-RBS -DEM Document 74 Filed 07/29/11 Page 11 of 11 PageID# 659

CERTIFICATE OF SERVICE
I certify that on this 29th day of July, 2011, I filed with the Court’s ECF system a
true copy o f the forgoing instrum ent, which will then be sent electronically to the
following counsel of record:
Ryan M. Malone, Esquire Augustine M. Ripa, Esquire Jason Gassan Idilbi, Esquire David O. Stewart, Esquire Douglas H. Hallward-Driemeier, Esquire Ropes & Gray LLP 700 12th Street NW Suite 900 Washington, D.C. 20005
Jeff W. Rosen, Esquire Lisa Ehrich, Esquire Pender & Coward 222 Central Park Avenue Virginia Beach, Virginia 23462

Stephen

/s/ M. Hall, VSB #44132 Attorney for Defendant Palmer Office of the Attorney General 900 East Main Street Richmond, Virginia 23219 Phone: (804) 785-1586 Fax: (804) 371-2087 Email: shall@oag.state.va.us

11

 
 Case 2:10-cv-00075-RBS -DEM Document 75 Filed 08/01/11 Page 1 of 4 PageID# 660

UNITED STATES DISTRICT COOR EASTERN DISTRICT OF VIRGINI
Norfolk Division

FILED
AUG - 1 2011

PROJECT VOTE/VOTING FOR AMERICA, INC.,
Plaintiff,
v.
ELISA LONG, in her Official Capacity as General Registrar of Norfolk, Virginia,

CLERK. U.S. DISTRICT COURT NORFOLK. VA
Civil No. 2:10cv75

and
DONALD PALMER, in his Official Capacity as Secretary, State Board of Elections,

Defendants. ORDER

This case comes before the court on the defendants' Motion to Stay Judgment, which was filed on July 25, 2011. In that Motion, the defendants ask the court to stay its July 20, 2011, judgment, see Project Vote/Voting for Am., Inc. v. Long, No. 2:10cv75, 2011 WL 2963032 (E.D. Va. July 20, 2011}, pending appeal, pursuant to Federal Rule of Civil Procedure 62(c). Before a court may issue a

stay pending appeal, it must examine each of the following factors:
(1) [W] hether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.
Hilton v. Braunskill, 481 U.S. 770, 776 (1987) (emphasis added)

Case 2:10-cv-00075-RBS -DEM Document 75 Filed 08/01/11 Page 2 of 4 PageID# 661
(citations omitted). "[T]he traditional stay factors contemplate individualized judgment in each case." Id. at 777.
The court is not persuaded to tacitly abandon its ruling and find that the defendants are likely to succeed on appeal. However, as this case is one of first impression that touches on matters of substantial national importance, there is certainly a "substantial case on the merits." Id. at 77 8. Accordingly, if the other factors militate in favor of a stay, the court may issue one. See id.; see also Miller v. Brown, 465 F. Supp. 2d 584, 596 (E.D. Va. 2006), aff'd, 503 F.3d 360 (4th Cir. 2007).
The defendants have demonstrated that, considering the time and expense required to implement the changes necessary to comply with this court's July 20, 2011 judgment, they would suffer irreparable injury absent a stay. See Decl. of Donald Palmer, ECF No. 67-1 (detailing why it would take the Virginia State Board of Elections approximately six months to institute the necessary changes, costing approximately $78, 500). Although not raised by the defendants, the court also considers the fact that absent a stay, the defendants must disclose voter registration applications with the social security numbers ("SSN'') redacted that are completed while the case is on appeal; but, in the event this court's judgment was reversed, the defendants would be unable to restore confidentiality to any personal information contained in the released voter registration
2

Case 2:10-cv-00075-RBS -DEM Document 75 Filed 08/01/11 Page 3 of 4 PageID# 662

applications. This fact weighs strongly in favor of issuing a stay.*

As to the third factor, staying judgment will certainly injure

Project Vote, insofar as it will endure delay in exercising its

statutory right to inspect and photocopy completed voter

registration applications with the SSNs redacted. However, the

court does not find that staying judgment will substantially injure

Project Vote because, under current law, Project Vote can still

pursue its mission of "working to enforce and expand public policies

and procedures that encourage full participation in elections. 11

Compl. ~ 4, ECF No. 1. For instance, Project Vote can monitor

rejection of voter registration applications by accessing a list of

persons denied registration, see Va. Code§ 24.2-444(A), and then

seeking to contact those persons.

Similarly, it is clear that the public will endure some injury

from a stay that prevents the immediate exercise of a statutory right.

Nonetheless, the court finds that the public interest clearly lies

in issuing a stay for several reasons. First, the Virginia primary

and general elections for state and local offices will soon be held,

thus "a stay pending appeal will mitigate the likelihood of confusion

during th [at]

. process. 11 Miller, 465 F. Supp. 2d at 597.

Second, a stay pending appeal gives the defendants time to prepare

to properly implement this court's judgment, as well as gives the

*

See infra at 4.

3

Case 2:10-cv-00075-RBS -DEM Document 75 Filed 08/01/11 Page 4 of 4 PageID# 663

Virginia General Assembly and the United States Congress \\time to

contemplate any remedial legislation [they] believe[] to be

appropriate." Id. Finally, the court again notes that the public

interest risks being irreparably harmed absent a stay because

personal information contained on completed voter registration

applications would be disclosed during the pendency of the appeal

without any way to restore its confidentiality if this court's

judgment is ultimately reversed.

For the above reasons, the court FINDS that a stay is appropriate

and warranted in this case. Accordingly, this court GRANTS the

defendants' Motion to Stay Judgment, and hereby STAYS its July 20,

2011, judgment pending appeal.

The Clerk is DIRECTED to forward a copy of this Order to counsel

for the parties.

IT IS SO ORDERED.
Norfolk, Virginia August \ , 2011

Is/
Rebecca Beach Smith
ULited States District Judg~
REBECCA BEACH SMITH UNITED STATES DISTRICT JUDGE

4

 
 Case 2:10-cv-00075-RBS -DEM Document 79 Filed 08/03/11 Page 1 of 17 PageID# 669

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

PROJECT VOTE/VOTING FOR AMERICA, INC. 737 ½ 8th St SE Washington, DC 20003
Plaintiff,
v.
ELISA LONG, In Her Official Capacity as General Registrar of Norfolk, VA City Hall Building, Room 808 810 Union Street Norfolk, VA 23510
DONALD PALMER, In His Official Capacity as Secretary, State Board of Elections, Washington Building, First Floor 1100 Bank Street Richmond, VA 23219
Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO.: 2:10cv75 ) )
)
) )
)
)
)
)
)
)
)

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF PROJECT VOTE’S MOTION TO RECOVER ATTORNEYS’ FEES AND COSTS
As the prevailing party against Defendants Elisa Long and Donald Palmer in Project Vote/Voting for Am., Inc. v. Long, Plaintiff Project Vote submits this memorandum in support of its Motion to Recover Attorneys’ Fees and Costs under the National Voter Registration Act (“NVRA”), 42 U.S.C. § 1973gg-9(c), and Federal Rule of Civil Procedure 54(d)(2). Project Vote/Voting for Am., Inc. v. Long, Op., No. 2:10cv75 (E.D. Va. July 20, 2011), ECF. No 63. After Defendants repeatedly denied Project Vote’s request for access to voter registration

Case 2:10-cv-00075-RBS -DEM Document 79 Filed 08/03/11 Page 2 of 17 PageID# 670
records, including completed voter registration applications, Project Vote filed this action seeking declaratory and injunctive relief. The Court granted such relief after Project Vote moved for summary judgment, and thus Project Vote is the prevailing party and entitled to fees and costs under the NVRA’s attorney’s fees provision. 42 U.S.C. § 1973gg-9(c). For the reasons described below and in the accompanying documentation, Plaintiff seeks an order awarding it $224,161.30 in fees and $657.00 in costs and expenses, including $213,236.50 in fees and $586.00 in costs and expenses incurred by outside counsel Ropes & Gray, and $10,924.80 in fees and $71.00 in costs and expenses incurred by Project Vote. See infra, Section IV; Exs. A-F.
Project Vote understands that Defendants have noticed their appeal of this matter, but, as the Advisory Committee Notes to the 1993 Amendments of Federal Rule of Civil Procedure 54(d)(2) state, Defendants’ intention to appeal does not toll the 14-day deadline by which Project Vote must file this fees motion. Fed. R. Civ. P. 54(d)(2) 1993 advisory committee’s notes. As such, Project Vote requests that the Court consider the motion timely filed but defer consideration on the matter until the appellate process is resolved, at which point Project Vote may supplement this motion as necessary.
BACKGROUND Project Vote initiated this action to vindicate its rights under the NVRA on February 10, 2010, for the reasons summarized in the complaint. Compl., ECF No. 1. Defendants moved to dismiss the case on March 26, 2010, claiming that Project Vote lacked standing and failed to state a claim upon which relief could be granted. Defs.’ Mot. to Dismiss, ECF. No. 8. In its October 29, 2010, opinion, the Court denied Defendants’ motion, holding that Project Vote had standing to bring this suit and that the Requested Records fall within the purview of the NVRA’s Public Disclosure Provision. Project Vote/Voting for Am., Inc. v. Long, 752 F. Supp. 2d 697,
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706 (E.D. Va. 2010). On July 20, 2011, the Court granted summary judgment in Project Vote’s favor, again concluding that the Public Disclosure Provision requires that the Requested Records be made available for inspection and copying, with the Social Security Numbers redacted. Op. 10, ECF. No 63. I. PROJECT VOTE IS THE PREVAILING PARTY ENTITLED TO AN AWARD
OF REASONABLE ATTORNEYS’ FEES AND COSTS. The NVRA provides for the recovery of reasonable attorneys’ fees and costs to prevailing plaintiffs bringing suit under the statute. See 42 U.S.C. § 1973gg-9(c) (“In a civil action under this section, the court may allow the prevailing party (other than the United States) reasonable attorney fees, including litigation expenses, and costs.”). This provision is nearly identical to the fee-shifting provisions of other federal civil-rights statutes.1 Courts therefore recognize that the NVRA’s language serves the same congressional purpose as these similar fee-shifting provisions and construe their language similarly, employing the same “reasonability” standard to adjudicate recovery of fees. See Hensley v. Eckerhart, 461 U.S. 424, 433 n.7 (1983) (setting forth the standard “generally applicable in all cases in which Congress has authorized an award of fees to a ‘prevailing party’”); Nigh v. Koons Buick Pontiac GMC, Inc., 478 F.3d 183, 188 (4th Cir. 2007) (analogizing Truth-In-Lending Act’s fee-shifting provisions to 42 U.S.C. § 1988(b)), cited with approval in JP ex rel. Peterson v. Cnty. Sch. Bd. of Hanover Cnty., 641 F. Supp. 2d 499, 510-11 (E.D. Va. 2009); Project Vote v. Blackwell, No. 1:06-cv-1628, 2009 WL 917737, at *4 (N.D. Ohio Mar. 31, 2009) (stating that authority addressing fees awarded under 42 U.S.C.
1 See 42 U.S.C. § 1973l(e) (“In any action or proceeding to enforce the voting guarantees of the [F]ourteenth or [F]ifteenth Amendment[s], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee, reasonable expert fees, and other reasonable litigation expenses as part of the costs.”); 42 U.S.C. § 1988(b) (“In any action or proceeding to enforce a provision of … [42 U.S.C. § 1983], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs. . . .”).
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§1988 informs the analysis of fee awards under the NVRA); Nat’l Coal. for Students with Disabilities v. Bush, 173 F. Supp. 2d 1272, 1276 (N.D. Fla. 2001) (comparing the NVRA standard for recovery of fees to that of the civil rights statutes). Project Vote is thus entitled to an award of reasonable attorneys’ fees and costs because it is the prevailing party and there are no special circumstances rendering an award unjust.
A. Project Vote is Entitled to Fees and Costs Because it is The Prevailing Party And No Special Circumstances Exist Rendering A Fee Award Unjust.
A prevailing plaintiff in a federal civil rights suit “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” Newman v. Piggie Park Enter., 390 U.S. 400, 402 (1968); accord Hensley, 461 U.S. at 429; N.Y. Gaslight Club, Inc. v. Carey, 447 U.S. 54, 68 (1980); see Kissinger v. Bd. of Trs. of Ohio State Univ., 5 F.3d 177, 179 (6th Cir. 1993) (“Although the statute states that the award of attorneys’ fees is discretionary, they should normally be granted if a plaintiff prevails.” (citations omitted)). As courts have repeatedly recognized, “[a]wards of attorney fees are an integral part of the remedies necessary to obtain compliance with the civil rights laws.” Price v. Pelka, 690 F.2d 98, 101-02 (6th Cir. 1982) (citation omitted); see also Alexander S. v. Boyd, 929 F. Supp. 925, 932 (D.S.C. 1995) (award of attorneys’ fees “should comport with the underlying purpose of … [fee statute,] which is to provide civil rights litigants effective access to the federal courts”) (citations omitted). Project Vote is thus entitled to fees under the NVRA because it is a prevailing party and no special circumstances render such an award unjust. Indeed, in cases of first impression — such as this case — it is especially appropriate to award fees because “[c]ases of first impression generally require more time and effort on the attorney’s part … [and] he should be appropriately compensated for accepting the challenge.” Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 718 (5th Cir. 1974), overruled on other grounds by Blanchard v. Bergeron, 489 U.S. 87 (1989).
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Parties are considered prevailing parties “if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Hensley, 461 U.S. 424, 433 (1983) (citation and footnote omitted) (quotation omitted); see Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989) (stating that “to be considered a prevailing party within the meaning of § 1988, the plaintiff must be able to point to a resolution of the dispute which changes the legal relationship between itself and the defendant”) (citation omitted); DiLaura v. Twp. of Ann Arbor, 471 F.3d 666, 671 (6th Cir. 2006) (“[I]f the party points to success on a significant issue leading to a material legal alteration between the parties, then that party has crossed the ‘statutory threshold’ into prevailing party status.”); see also Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 604 (2001) (“[E]nforceable judgments on the merits and court-ordered consent decrees create the ‘material alteration of the legal relationship of the parties’ necessary to permit an award of attorney's fees.” (quoting Tex. State Teachers Ass’n, 489 U.S. at 792-93)); Farrar v. Hobby, 506 U.S. 103, 111 (1992) (stating that “to qualify as a prevailing party [entitled to fees], a civil rights plaintiff must obtain at least some relief on the merits of his claim … [and] obtain an enforceable judgment against the defendant from whom fees are sought”) (citation omitted).
The Hensley standard is “generous” to plaintiffs, 461 U.S. at 433, because it is designed to effectuate Congress’s intent “to ensure ‘effective access to the judicial process’ for persons with civil rights grievances.” Id. at 429 (quoting H.R. Rep. No. 94-1558, at 1 (1976)); see also Dubay v. Wells, 506 F.3d 422, 433 (6th Cir. 2007) (purpose of § 1988 “is to ensure that civil rights plaintiffs will not be financially deterred from vindicating their rights by the prospect of attorney costs which greatly exceed their potential recovery”) (citation omitted); Louisville Black Police Officers Org. v. City of Louisville, 700 F.2d 268, 278 (6th Cir. 1983) (purpose of fee
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statute is “to make an award of fees which is adequate to attract competent counsel”) (internal quotation marks omitted); Doe v. Busbee, 684 F.2d 1375, 1379 (11th Cir. 1982) (“The congressional purpose in authorizing awards of attorney’s fees to plaintiffs as prevailing parties was to assist private attorneys general in vindicating civil rights.”). A plaintiff prevails even if he does not win on every single claim, as long as his “efforts contributed in a significant way to the change” he sought. Bly v. McLeod, 605 F.2d 134, 139 (4th Cir. 1979); see Lilienthal v. City of Suffolk, 322 F. Supp. 2d 667, 671 (E.D.Va. 2004) (holding that plaintiff had “achieved sufficient relief on his claims to merit the award of attorneys fees” despite the fact that the “dispute was resolved without deciding the merits of plaintiff's constitutional claims”). Given the Court’s judgment entering declaratory and injunctive relief, there can be no dispute that this lawsuit has been resolved in favor of Project Vote in such a way as to change the legal relationship between the parties, thus rendering Project Vote the prevailing party under Section 1973gg-9(c).
Additionally, no special circumstances exist rendering a fee award unjust in this case. Indeed, the special circumstances exception is narrowly construed so as not to interfere with the purposes of the fee statutes: to encourage civil rights enforcement, penalize obstructive litigation by civil rights defendants, and to deter civil rights violations. See Pruett v. Harris Cnty. Bail Bond Bd., 499 F.3d 403, 417 (5th Cir. 2007); Hatfield v. Hayes, 877 F.2d 717, 720 (8th Cir. 1989). Project Vote has brought this litigation to further all of those statutory objectives. Moreover, the party opposing the fee request bears the difficult burden of establishing the existence of special circumstances that would render an award unjust. See Pruett, 499 F.3d at 417 (requiring Defendants to make an “‘extremely strong showing’ of special circumstances to avoid paying attorneys’ fees”) (footnote omitted); Deja vu of Nashville, Inc. v. Metro. Gov’t, 421
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F.3d 417, 422 (6th Cir. 2005) (defendant must make a “strong showing that special circumstances warrant a denial of fees”) (citation omitted). Importantly, courts have consistently rejected arguments by state defendants that an award would “fall on the taxpayers,” Johnson v. Mississippi, 606 F.2d 635, 637 (5th Cir. 1979), that defendants “were merely performing their duty by enforcing the statute,” id.; that the law was uncertain, Gomez-Arauz v. McNary, 779 F. Supp. 1308, 1312 (W.D. Okla. 1991), or that a defendant acted in “good faith,” Morscott, Inc. v. City of Cleveland, 936 F.2d 271, 273 (6th Cir. 1991).
No special circumstances exist in this case that would render an award unjust. Project Vote’s request is not excessive, but is well-documented, accurate, and reasonable. Indeed, this fee request is already substantially lower than an amount recently awarded to Project Vote by a federal court in another case under the NVRA. See Project Vote, 2009 WL 917737, at *1 (awarding Project Vote $312,925.00 in fees and $8,560.28 in costs incurred during litigation against Ohio state defendants). Nor does the fact that Defendants are state officials, that the State would be responsible for paying the fees, or that Defendants still claim that their actions are justified under their interpretation of the NVRA present circumstances justifying withholding a fee award here. See Johnson, 606 F.2d at 637; Gomez-Arauz, 779 F. Supp. at 1312; Morscott, 936 F.2d at 273. Accordingly, Project Vote is entitled to the fees requested. II. THE REQUESTED FEE AWARD IS REASONABLE.
A. The Lodestar Method is the Appropriate Manner of Calculating Fees. The Supreme Court has endorsed the “readily administrable” lodestar method as meeting the reasonableness standard set forth by the civil rights fee-shifting statutes. Perdue v. Kenny, 130 S. Ct. 1662, 1669-71 (2010) (“[T]here is a ‘strong presumption’ that the lodestar … [is] sufficient….” (citation omitted)). The Fourth Circuit has also regularly applied the lodestar
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method. See, e.g., Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 243 (4th Cir. 2009); Grissom v. Mills Corp., 549 F.3d 313, 320 (4th Cir. 2008). The lodestar approach determines the amount of fees a prevailing party is entitled to by multiplying the number of hours reasonably spent on the litigation by the prevailing market rates. Perdue, 130 S. Ct. at 1672; Robinson, 560 F.3d at 243 (citation omitted). The resulting amount, the “lodestar,” is “presumed to be the reasonable fee.” Blum v. Stenson, 465 U.S. 886, 897 (1984); see also Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 552 (6th Cir. 2008) (“Where the party seeking the attorney fees has established that the number of hours and the rate claimed are reasonable, the lodestar is presumed to be the reasonable fee to which counsel is entitled.” (citation omitted)); Bldg. Serv. Local 47 Cleaning Contractors Pension Plan v. Grandview Raceway, 46 F.3d 1392, 1401 (6th Cir. 1995) (“There is a strong presumption that this lodestar figure represents a reasonable fee.” (citations omitted) (internal quotation marks omitted)). It includes hours worked by paralegals and law clerks, as well as by lawyers. Missouri v. Jenkins, 491 U.S. 274, 285-289 (1989).
B. Counsel Spent a Reasonable Number of Hours at Reasonable Hourly Rates. Project Vote seeks compensation for time reasonably expended in prosecuting and prevailing in this lawsuit—a total of 614.75 hours. See infra, Section IV; Exs. C-E. Counsel have submitted declarations and exhibits documenting the tasks they performed and the time devoted to each task, based on contemporaneous time records.2 See id.; Ex. A (“Malone Decl.”); Ex. B (“Mellor Decl.”). These records are “‘of sufficient detail and probative value to enable the court to determine with a high degree of certainty that such hours were actually and
2 In considering whether the amount of time spent was reasonable, counsel’s sworn testimony that they actually expended the time for which compensation is sought is given considerable weight. See Perkins v. Mobile Hous. Bd., 847 F.2d 735, 738 (11th Cir. 1988) (“Sworn testimony that, in fact, it took the time claimed is evidence of considerable weight on the issue of the time required in the usual case. . . .”).
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reasonably expended in the prosecution of the litigation.’” Imwalle, 515 F.3d at 553 (6th Cir. 2008) (citation omitted) (internal quotations omitted) (noting that “counsel need not record in great detail each minute he or she spent on an item,” but indicating that “the general subject matter should be identified”). Moreover, the novel and previously undecided legal issues that Project Vote’s attorneys pursued further demonstrate the reasonableness of this fee request because such cases are often more labor-intensive. See Johnson, 488 F.2d at 718.
The reasonableness of a claimed hourly rate is determined by reference to the prevailing rate in the relevant market—i.e., the rate that is customarily paid in the community to attorneys of reasonably comparable skill, experience, and reputation. See Blum, 465 U.S. at 895-96 (footnote omitted); Perdue, 130 S. Ct. at 1672; Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 175 (4th Cir. 1994). Indeed, Congress intended the amount of fees under the fee-shifting statutes to be “governed by the same standards which prevail in other types of equally complex Federal litigation.” Blum, 465 U.S. at 893 (citation omitted). Thus, the reasonable hourly rate is determined by examining the rate that lawyers of similar skill, reputation, and experience would charge fee-paying clients in similarly complex litigation in the relevant community. Id. at 89596 & n.11; see also Missouri, 491 U.S. at 286; Geier v. Sundquist, 372 F.3d 784, 791 (6th Cir. 2004); Fuhr v. Sch. Dist. Of Hazel Park, 364 F.3d 753, 762 (6th Cir. 2004).
As a general rule, the relevant community for determining appropriate fee levels is the district where the case was tried, Rum Creek, 31 F.3d at 175 (citation omitted), but “courts are free to look to a national market, an area of specialization market or any other market they believe appropriate to fairly compensate particular attorneys in individual cases.” Louisville Black Police Officers Org., 700 F.2d at 278 (citation omitted) (“Focusing on the fair market value of the attorney's services will best achieve” the statutory goal of attracting competent
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counsel). Courts generally find it reasonable to award fees at rates determined by the community in which Plaintiff’s counsel resides, if different than that of the district court, if the plaintiff acted reasonably in choosing counsel from elsewhere. Nat’l Wildlife Fed’n v. Hanson, 859 F.2d 313, 317 (4th Cir. 1988) (“[L]ocal counsel in Raleigh, North Carolina, was unable to take this case; … efforts to retain the Sierra Club Defense Fund were unsuccessful; and … the nearest counsel with the requisite expertise in complex environmental litigation and the willingness to forgo compensation temporarily and perhaps permanently, was in Washington, D.C.”). In this case — as in Nat’l Wildlife Fed’n — Project Vote acted reasonably by retaining counsel in Washington, D.C., whose office was located in close proximity to theirs, who had specific civil rights and constitutional law expertise, and who were willing to take on a case of first impression. See Mellor Decl. ¶ 13.
Reasonable market rates in Washington, D.C., where both Plaintiff and its outside counsel are located, are determined by the Laffey Matrix. See Laffey v. Nw. Airlines, Inc., 572 F. Supp. 354 (D.D.C. 1983) (establishing the “Laffey Matrix,” now frequently used to determine presumptively reasonable fees in Washington, D.C.), aff'd in part by 746 F.2d 4 (D.C. Cir. 1984), overruled in part on other grounds by Save Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d 1516, 1525 (D.C. Cir. 1988) (en banc); see See the Matrix, laffeymatrix.com, http://www.laffeymatrix.com (last visited Aug. 2, 2011) (containing the current “Adjusted Laffey Matrix”)); see also Salazar v. Dist. of Col., 123 F. Supp. 2d 8, 14-15 (D.D.C. 2000) (approving use of the updated Laffey Matrix as sufficient evidence of prevailing rates); Newport News Shipbuilding and Dry Dock Co. v. Holiday, 591 F.3d 219, 229 (4th Cir. 2009) (“the Laffey matrix is a useful starting point to determine fees”) (citation omitted); U.S. ex rel. Thyssenkrupp Safway, Inc. v. Tessa Structures, LLC, No. 1:10cv512, 2011 WL 2633902, at *6 n. 2 (E.D. Va. July 5,
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2011) (“The Laffey Matrix is used as a guideline for reasonable attorney fees in the Washington/Baltimore area.” (citation omitted)); Bd. of Trs., Sheet Metal Workers' Nat'l Pension Fund v. E. Sign Tech, LLC, No. 1:05cv-410 (JCC), 2006 U.S. Dist. LEXIS 72345, at *7 (E.D.Va. Oct. 4, 2006) (using the Laffey matrix as evidence of reasonableness). Because Project Vote acted reasonably in choosing outside counsel in Washington D.C., it requests fees at the rates set out in the Laffey Matrix. See Section IV, infra.; Ex. D.
D. Project Vote’s Fee Request is Especially Reasonable In Light Of the Johnson Factors.
The fee award Project Vote seeks is especially reasonable in light of the Johnson factors, which inform the calculation of the lodestar in the Fourth Circuit. See Johnson, 488 F.2d at 71719 (setting forth a subjective method of determining reasonable fees based on twelve factors). See also Robinson, 560 F.3d at 243-44 (applying the Johnson factors to the calculation of the reasonable number of hours and hourly rates used to determine the lodestar amount); accord Rum Creek, 31 F.3d at 175; Daly v. Hill, 790 F.2d 1071, 1078 (4th Cir. 1986). These twelve Johnson factors include:
(1) time and labor expended; (2) novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorneys’ opportunity costs in pressing the litigation; (5) the customary fee for similar work; (6) the attorneys’ expectations at the outset of litigation; (7) time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) experience, reputation and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the attorney-client relationship; and (12) fee awards in similar cases. Johnson, 488 F.2d at 717-19. The Johnson factors weigh in favor of the requested fee award in this case. Courts are more likely to award fees in an issue of first impression because the second Johnson factor indicates that “cases of first impression generally require more time and effort on the
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attorney’s part … [and that] … he should be appropriately compensated for accepting the challenge.” Johnson, 488 F.2d at 718. The ninth Johnson factor, which considers the “experience, reputation and ability” of the attorneys, further supports the requested award.
Project Vote also undeniably achieved favorable results in this litigation, as contemplated in the eighth Johnson factor. Of the twelve Johnson factors, the “results obtained” factor is “highly important.” Adcock-Ladd v. Sec’y of Treasury, 227 F.3d 343, 349 (6th Cir. 2000) (citing Hensley, 461 U.S. at 435-36). In fact, “[w]here a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee.” Hensley, 461 U.S. at 435. Here, Project Vote received both a declaratory judgment in its favor as well as prospective injunctive relief. This alone suggests that Plaintiffs’ counsel should recover their requested fee.
Finally, the Laffey Matrix rates are substantially lower than the rates Ropes & Gray charges other clients. Ropes & Gray is representing Project Vote pro bono in this matter. See Blanchard, 489 U.S. at 95 (“That a nonprofit legal services organization may contractually have agreed not to charge any fee of a civil rights plaintiff does not preclude the award of a reasonable fee to a prevailing party….”); Blum, 465 U.S. at 894 (“Congress did not intend the calculation of fee awards to vary depending on whether plaintiff was represented by private counsel or by a nonprofit legal services organization.”). The requested fees are reasonable and the Court should grant Project Vote’s motion. III. PROJECT VOTE IS ENTITLED TO RECOVER COSTS AND EXPENSES IN
ADDITION TO FEES. The “court’s authority to award reasonable attorney’s fees includes the authority to award those reasonable out-of-pocket expenses incurred by the attorney which are normally charged to a fee-paying client, in the course of providing legal services.” Citizens Against Pollution v. Ohio Power Co., 484 F. Supp. 2d 800, 815 (S.D. Ohio 2007) (internal quotation marks omitted);
-12-

Case 2:10-cv-00075-RBS -DEM Document 79 Filed 08/03/11 Page 13 of 17 PageID# 681
Brooks v. Ga. State Bd. of Elections, 997 F.2d 857, 861 n.3 (11th Cir. 1993) (“The fee statutes provide for the reimbursement of reasonable costs incurred as well as the award of attorney's fees.”); Dowdell v. City of Apopka, 698 F.2d 1181, 1190 (11th Cir. 1983) (“Reasonable attorneys’ fees under the Act must include reasonable expenses because attorneys’ fees and expenses are inseparably intertwined as equally vital components of the costs of litigation”); Ramos v. Lamm, 713 F.2d 546, 559 (10th Cir. 1983) (“Items that are normally itemized and billed in addition to the hourly rate should be included in fee allowances in civil rights cases if reasonable in amount.”), overruled on other grounds by Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 483 U.S. 711 (1987); Pinkham v. Camex, Inc., 84 F.3d 292, 29495 (8th Cir. 1996) (stating that “reasonable out-of-pocket expenses of the kind normally charged to clients by attorneys … should have been included as part of the reasonable attorney’s fees awarded”) (citation omitted). In this case, Project Vote seeks to recover very limited costs and expenses—just court costs incurred and the cost of a client representative with settlement authority to travel to Norfolk, Virginia from Washington, D.C. for a status conference in the Court’s chambers. The costs incurred are documented in the attorneys’ declarations and in the supporting exhibits. See Malone Decl.; Mellor Decl.; Ex. F. IV. PROJECT VOTE HAS PROVIDED PROPER DOCUMENTATION
SUPPORTING ITS REQUEST. Project Vote requests a total award of $224,161.30 in fees and $657.00 in costs and expenses. For ease of the Court’s consideration and demonstration of fees incurred, Project Vote has divided litigation into five distinct phases: (1) assembling the complaint; (2) response to Defendants’ motion to dismiss; (3) oral argument; (4) pre-trial conferences; and (5) summary judgment proceedings. Each of these phases is described in more detail below. Project Vote provides documentation reflecting the time incurred by each attorney or paralegal during each of
-13-

Case 2:10-cv-00075-RBS -DEM Document 79 Filed 08/03/11 Page 14 of 17 PageID# 682

these phases in Exhibit E—a spreadsheet listing the attorney’s or paralegal’s name, hours billed

in connection with these proceedings, and the rate at which the fees were calculated. Id. A

summary aggregating the totals is presented in Exhibit C. Id. Exhibit D provides a legend of the

hourly rates requested for each attorney or paralegal, as determined by the Laffey Matrix. Id.

Exhibit F provides an itemization of the costs and expenses sought. Id.

Phase 1: Assembling the Complaint

In this phase of the litigation, counsel undertook a detailed analysis of the NVRA,

including studying its legislative history and treatment in case law, and identified a statutory

basis for the lawsuit. Counsel performed substantial research on the key legal and factual issues,

such as Supremacy Clause doctrine, Project Vote’s standing to challenge Defendants’ actions,

constitutionality of the NVRA, and interpretation of the Public Disclosure Provision. Following

this analysis, counsel drafted the Complaint to initiate the lawsuit against Defendants. As part of

this process, counsel worked with Project Vote to revise and finalize the Complaint. Counsel

also researched applicable rules regarding filing of the Complaint and service of process and

coordinated those procedures.

Phase 1 Hours: 123.85

Phase 1 Fees Sought: $42,081.65

Phase 2: Response to Defendants’ Motion to Dismiss

In this phase, counsel reviewed Defendants’ motion to dismiss the case, analyzed their

legal arguments, and formulated a strategy for challenging their position. Counsel performed

detailed research on the applicable case law, reviewing those cases cited by Defendants and

researching cases supporting the opposite stance. Counsel drafted a brief opposing Defendants’

motion, laying forth the pertinent legal precedent and incorporating legal and factual arguments.

Phase 2 Hours: 125.60

Phase 2 Fees Sought: $41,000.20

-14-

Case 2:10-cv-00075-RBS -DEM Document 79 Filed 08/03/11 Page 15 of 17 PageID# 683

Phase 3: Oral Argument

This phase of the lawsuit involved the preparation for and presentation at a hearing before

the court on Defendants’ motion to dismiss. In preparation for the hearing, counsel reviewed the

pleadings and supporting case law in great depth and met with team members to practice for oral

argument. Counsel traveled to Norfolk, VA for the hearing, where they presented arguments in

support of their position to the Court.

Phase 3 Hours: 83.00

Phase 3 Fees Sought: $33,184.75

Phase 4: Pre-Trial Conferences

During this phase, counsel formulated and implemented a pre-trial strategy in light of the

Court’s order denying Defendants’ motion to dismiss. This strategy included such steps as

drafting a consent decree proposal, researching civil discovery rules and mapping out a discovery

schedule, preparing for Rule 26(f) and Rule 16(b) conferences, attending such conferences, and

drafting and serving disclosures. Counsel for Plaintiffs conferred with Defendants’ counsel on

the necessity of preparing such pretrial materials under the Court’s scheduling order, and

Defendants’ counsel agreed that parties were obliged to proceed until hearing otherwise from the

Court.

Phase 4 Hours: 118.85

Phase 4 Fees Sought: $47,524.40

Phase 5: Summary Judgment Proceedings

The final stage of litigation involved researching and drafting a motion for summary

judgment, as well as supplemental pleadings responding to Defendants’ counter-arguments and

the Court’s concerns. Counsel carefully researched case law pertaining to the standard for

summary judgment, reviewed sample filings, and thoroughly edited and revised the motion for

summary judgment. Upon receiving Defendants’ response pleading, counsel discussed a

-15-

Case 2:10-cv-00075-RBS -DEM Document 79 Filed 08/03/11 Page 16 of 17 PageID# 684

strategy for responding to Defendants’ arguments regarding HAVA and MOVE, researched the

legislative history of those statutes and case law analyzing their provisions and scope, and

drafted a reply brief. Counsel prepared for a settlement conference and oral argument on the

summary judgment motion and traveled to Norfolk for a status conference. After the Court’s

June 10 Order, counsel drafted and filed a supplemental memorandum.

Phase 5 Hours: 163.45

Phase 5 Fees Sought: $60,370.30

CONCLUSION

In sum, based on the foregoing and as the prevailing party in this action, Plaintiff Project

Vote respectfully requests that this Court award attorneys’ fees in the amount of $224,161.30 and

costs and expenses in the amount of $657.00 as set out in the attached exhibits. Project Vote

acknowledges that this issue is best decided after the conclusion of the appellate process, and

requests that the court defer a decision until that time, at which point Project Vote may

supplement its request as necessary.

Dated: August 3, 2011

Respectfully submitted,

/s/
Ryan M. Malone (VA Bar # 48526) Augustine M. Ripa (VA Bar #77244) David O. Stewart (admitted pro hac vice) Douglas H. Hallward-Driemeier (admitted pro hac vice) ROPES & GRAY LLP 700 12th Street NW, Suite 900 East Washington, D.C. 20005 TEL: 202-508-4669 FAX: 202-383-8322 Ryan.Malone@ropesgray.com Counsel for Plaintiff Project Vote/Voting for America, Inc.

-16-

Case 2:10-cv-00075-RBS -DEM Document 79 Filed 08/03/11 Page 17 of 17 PageID# 685 CERTIFICATE OF SERVICE
I hereby certify that on the 3rd day of August, 2011, I electronically filed the foregoing pleading with the Clerk of Court using the CM/ECF system, which will send a notification of such filing to all counsel of record.
/s/ Ryan M. Malone
-17-

Case 2:10-cv-00075-RBS -DEM Document 79-1 Filed 08/03/11 Page 1 of 5 PageID# 686
EXHIBIT A

Case 2:10-cv-00075-RBS -DEM Document 79-1 Filed 08/03/11 Page 2 of 5 PageID# 687

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

PROJECT VOTENOTING FOR AMERICA, INC. 737 ~ 8th St SE Washington, DC 20003
Plaintiff,
v.
ELISA LONG, In Her Official Capacity as General Registrar ofNorfolk, VA City Hall Building, Room 808 810 Union Street Norfolk, VA 23510
DONALD PALMER, In His Official Capacity as Secretary, State Board ofElections, Washington Building, First Floor 1100 Bank Street Richmond, VA 23219
Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO.: 2:10cv75 ) )
)
) )
)
)
)
)
)
)
)

DECLARATION OF BRIAN MELLOR I, Brian Mellor, declare as follows:
1. I submit this declaration in support of plaintiffs Motion to Recover Attorneys' Fees
and Costs in connection with the successful resolution of this action. I make this
declaration of my own personal knowledge.

Case 2:10-cv-00075-RBS -DEM Document 79-1 Filed 08/03/11 Page 3 of 5 PageID# 688
2. I am Senior Counsel for Project Vote. I am a member ofthe bar of the Commonwealth of Massachusetts (admitted 1983) and District of Columbia (admitted 1983) and was admitted pro hac vice to participate as an attorney for the plaintiffs in this case.
3. I earned my B.A. cum laude from Williams College in 1978 and my J.D. from Boston University in 1983.
4. I worked as a union representative for the National Treasury Employees Union from 1983 to 1988. In that capacity I handled arbitrations and administrative hearings before the Merit Systems Protection Board and the Federal Labor Relations Authority.
5. From 1988 to 1994 I was the junior partner in the Law Office of Mark D. Stem in Somerville Massachusetts. I litigated cases before the Massachusetts District and Superior Court and the Federal District Court for the District of Massachusetts in areas concerning employment discrimination, rent control and lead paint.
6. From 1994 until 2004 I was counsel for the Union Neighborhood Assistance Corporation and its successor organization the Neighborhood Assistance Corporation ofAmerica. In that capacity I assisted a Massachusetts law firm that represented victims ofpredatory lending challenge a proposed class action settlement with a major lender.
-2-

Case 2:10-cv-00075-RBS -DEM Document 79-1 Filed 08/03/11 Page 4 of 5 PageID# 689
7. From 2004 to the present I have been counsel for Project Vote. I have worked on a number ofvoter registration cases including ACORN v Cox (2006) and Project Vote v. Blackwell; (2006), ACORN v Corbett (2009), FL NAACP v Browning, ACORN v Scott (2008)
8. Exhibits C and E are a true and correct statement of the hours and services which I have rendered in this case. I prepared the information provided therein based upon a review of my contemporaneous time records. It is my practice to keep regular records ofthe time I spend on litigation matters on a time sheet upon the completion of the task that I have rendered that I intend to bill.
9. I believe the hours, costs and expenses claimed are reasonable.
10. The hourly rate I am seeking is reflected in Exhibit D, which is consistent with the rate for attorneys in the Washington DC area with comparable education, expenence.
11. Yolanda Sheffield was the Director ofProject Vote's Election Administration Program from January 2009 to June 2010. She began work with Project Vote as an Election Counsel in August 2008. I supervised her. In that capacity she performed legal work related to three voter rights cases. She graduated from the Vanderbilt School ofLaw in 2005 and is a member ofthe District ofColumbia Bar. Exhibits C and E contain true and correct statements ofthe hours and services Yolanda Sheffield rendered in this case. Exhibit D reflects the hourly rate sought for her services, which is consistent with the rate for attorneys in the Washington DC area
...
-..)-

Case 2:10-cv-00075-RBS -DEM Document 79-1 Filed 08/03/11 Page 5 of 5 PageID# 690 with comparable education, experience.
12. Niyati Shah has been an Election Counsel at Project Vote since July 2010. She traveled to Norfolk, Virginia from Washington, D.C. to attend the status conference in the Court's chambers on June 10, 2011, as a representative of Project Vote with settlement authority. The costs associated with this travel are reflected in Exhibit F.
13. Project Vote sought the outside counse of Ropes & Gray LLP in this matter because of their expertise in constitutio and civil rights issues, willingness to take on a case offrrst impression, and cause the firm has a Washington, D.C. office in close proximity to Project Vo . .
Av-; }, f ;? Executed at Boston Massachusetts on ----7r-~ ; --~~+,1---, 2011
Brian W. Mellor
-4-

Case 2:10-cv-00075-RBS -DEM Document 79-2 Filed 08/03/11 Page 1 of 5 PageID# 691
EXHIBIT B

Case 2:10-cv-00075-RBS -DEM Document 79-2 Filed 08/03/11 Page 2 of 5 PageID# 692

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

PROJECT VOTENOTING FOR AMERICA, INC. 737 ~ 8th St SE Washington, DC 20003
Plaintiff,
v.
ELISA LONG, In Her Official Capacity as General Registrar ofNorfolk, VA City Hall Building, Room 808 810 Union Street Norfolk, VA 23510
DONALD PALMER, In His Official Capacity as Secretary, State Board ofElections, Washington Building, First Floor 1100 Bank Street Richmond, VA 23219
Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO.: 2:10cv75
) )
)
) )
)
)
)
)
)
)
)

DECLARATION OF RYAN MALONE I, Ryan Malone, hereby declare as follows:
1. I submit this declaration in support of Project Vote's Motion to Recover Attorneys' Fees and Costs in connection with the successful resolution of this action. I make this declaration of my own personal knowledge.
2. I am an Associate with Ropes & Gray LLP, which was retained by Plaintiff Project Vote in this case. I serve as lead counsel in this matter.

Case 2:10-cv-00075-RBS -DEM Document 79-2 Filed 08/03/11 Page 3 of 5 PageID# 693
3. I am a member of the bar of the Commonwealth of Virginia, admitted in 2002. I graduated from the University of Virginia School of Law in 2002.
4. I have worked as an associate in the litigation department of Ropes & Gray from 2002 to the present. In that capacity I have handled criminal and complex civil litigation, constitutional litigation, internal investigations, and appellate issues, including matters before the United States Supreme Court.
5. Exhibit F includes the costs incurred by Ropes & Gray in representing Project Vote in this case. I have reviewed these entries, and they are accurate to the best of my knowledge and belief.
6. Exhibits C and E reflect the hours and fees incurred by Ropes & Gray in this matter. Project Vote has divided the case into five distinct phases for purposes of the Motion to Recover Attorneys' Fees and Costs. To assist in the Court's review of the pending Motion, the time entries for each phase for each attorney or paralegal, including time spent, the fee amount, and a narrative summary of each task, have been included in Exhibit E. This information has been aggregated into a summary in Exhibit C.
7. With the exception of the time entries compiled by the legal staff of Project Vote, the information listed in Exhibits C and E have been prepared from the books and records of Ropes & Gray. It is Ropes & Gray's practice to keep regular records of the time each attorney or paralegal spends on litigation matters in a computerized time system as those tasks are completed. These exhibits represent a true and correct statement of the hours and services which I, and the other attorneys involved in this matter, have rendered in this case and are the basis of this Motion. I have reviewed the time entries and narrative summaries relating to legal services performed by Ropes & Gray and they are accurate to the best of my knowledge and belief.
2

Case 2:10-cv-00075-RBS -DEM Document 79-2 Filed 08/03/11 Page 4 of 5 PageID# 694
8. I believe the hours and expenses Ropes & Gray is claiming are reasonable. 9. I have reviewed the hourly rates claimed in Exhibit D and they are consistent with the Laffey Matrix rates corresponding to the experience level of each attorney and the relevant time frame of the recorded hours. They are also consistent with the rate for attorneys in the Washington, D.C. area with comparable education, skill, and experience. 10. The total fees requested are $224,161.30 and the total costs and expenses requested are $657.00. 11. A summary of the relevant experience of timekeepers at Ropes & Gray who billed time to this matter is as follows: 12. Douglas Hallward-Driemeier has been a Partner at Ropes & Gray since 2010. Previously, he worked for the Department of Justice and the Office of the Solicitor General. He graduated from Harvard Law School in 1994 and is a member of the Massachusetts Bar and District of Columbia Bar. 13. David 0. Stewart joined Ropes & Gray as a Partner in 1989 and become Counsel in 2005. He graduated from Yale Law School in 1978, clerked for Justice Lewis Powell, and is a member ofthe Maryland Bar and District of Columbia Bar. 14. Augustine Ripajoined Ropes & Gray as an Associate in 2008. He graduated from The George Washington University Law School in 2008 and is a member of the Virginia Bar and District of Columbia Bar. 15. Jason Idilbijoined Ropes & Gray as an Associate in 2008. He graduated from University ofNorth Carolina Law School in 2008 and is a member of the Virginia Bar and District of Columbia Bar. 16. Sheryl Beauregard joined Ropes & Gray in 2007 as a Senior Litigation Paralegal.
3

Case 2:10-cv-00075-RBS -DEM Document 79-2 Filed 08/03/11 Page 5 of 5 PageID# 695

Executed on August 3, 2011

Ryan Malone

4

Case 2:10-cv-00075-RBS -DEM Document 79-3 Filed 08/03/11 Page 1 of 2 PageID# 696
EXHIBIT C
-3-

Timekeeper Hours Totals Timekeeper Hallward‐Driemeier, Doug Stewart, David Malone, Ryan Ripa, Augustine Idilbi, Jason Beauregard, Sheryl Sheffield, Yolanda Mellor, Brian
Fee Totals
Fee Request Total

Employer Ropes & Gray Ropes & Gray Ropes & Gray Ropes & Gray Ropes & Gray Ropes & Gray Project Vote Project Vote

Position Partner Counsel Associate Associate Associate Paralegal Attorney Attorney

Phase 1 Hours Phase 2 Hours Phase 3 Hours Phase 4 Hours Phase 5 Hours Total Hours

0.00

2.75

0.00

0.00

2.25

5.00

0.50

0.00

0.00

0.00

0.00

0.50

27.00

15.75

39.25

46.00

37.25

165.25

57.25

61.25

20.00

41.00

69.50

249.00

25.25

38.25

22.50

29.25

34.00

149.25

1.25

0.00

1.25

1.50

16.75

20.75

12.60

6.20

0.00

0.00

0.00

18.80

0.00

1.40

0.00

1.10

3.70

6.20

Total Hours

123.85

125.60

83.00

118.85

163.45

614.75

Hours Total Fees

Phase 1

Phase 2

Phase 3

Phase 4

Phase 5

123.85

125.60

83.00

118.85

163.45

$42,081.65

$41,000.20

$33,184.75

$47,524.40

$60,370.30

Hours Total Fees

614.75 $224,161.30

Hours Total Fees

Ropes & Gray Project Vote

589.75

25.00

$213,236.50

$10,924.80

Case 2:10-cv-00075-RBS -DEM Document 79-3 Filed 08/03/11 Page 2 of 2 PageID# 697

Case 2:10-cv-00075-RBS -DEM Document 79-4 Filed 08/03/11 Page 1 of 2 PageID# 698
EXHIBIT D
-4-

Timekeeper and Fee Legend

Timekeeper Hallward‐Driemeier, Doug Stewart, David Malone, Ryan Ripa, Augustine Idilbi, Jason Beauregard, Sheryl Sheffield, Yolanda Mellor, Brian

Employer Ropes & Gray Ropes & Gray Ropes & Gray Ropes & Gray Ropes & Gray Ropes & Gray Project Vote Project Vote

Position Partner Counsel Associate Associate Associate Paralegal Attorney Attorney

Laffey Rate Laffey Rate Laffey Rate

6/1/09‐5/31/10 6/1/10‐5/31/11 6/1/11‐7/1/11

$569.00

$589.00

$609.00

$686.00

$709.00

$734.00

$505.00

$522.00

$540.00

$285.00

$294.00

$374.00

$285.00

$294.00

$374.00

$155.00

$161.00

$166.00

$349.00

$361.00

$374.00

$686.00

$709.00

$734.00

Case 2:10-cv-00075-RBS -DEM Document 79-4 Filed 08/03/11 Page 2 of 2 PageID# 699

Case 2:10-cv-00075-RBS -DEM Document 79-5 Filed 08/03/11 Page 1 of 21 PageID# 700
EXHIBIT E

Phase 1 ‐ Assembling the Complaint

Phase Date

Name

1 11/10/2009 Augustine Ripa 11/16/09

1

Augustine Ripa

1 11/17/2009 Augustine Ripa

1 11/24/2009 Augustine Ripa 1 11/30/2009 Augustine Ripa 1 12/1/2009 Augustine Ripa

1 12/4/2009 Augustine Ripa 1 12/7/2009 Augustine Ripa 1 12/8/2009 Augustine Ripa 1 12/9/2009 Augustine Ripa 1 12/10/2009 Augustine Ripa 1 12/11/2009 Augustine Ripa

Hours Rate

Fee

Description

Call with R.Malone, B.Heard and Y.SHeffield on initiating

litigation under the NVRA; discussion with R.Malone on

the same; analyze legal arguments to facilitate the same

1.00

285.00

285.00

2.75

Analyze legal issues such as standing, application of the

supremacy clause and application of the NVRA in

285.00

783.75 preparation for drafting the complaint

0.50

Analyze legal issues necessary to inform proper drafting

of the complaint, particularly standing, NVRA and

285.00

142.50 constitutional claims

1.50

Analyze applicable legal issues, such as standing and

possible NVRA or constitutional claims, to inform proper

drafting of the complaint; confer with R.Malone on the

285.00

427.50 same;

6.50

Analyze standing issues, supremacy clause and statutory

interrelation issues and possible constitutional claims

285.00 1,852.50

0.50

Analyze standing issues and potential constitutional

claims to inform proper drafting of the complaint

285.00

142.50

2.50

Analyze case law applicable to standing issues and

potential claims to inform the drafting of the complaint;

discuss the same and strategies for drafting the complaint

285.00

712.50 with J.Idilbi and R.Malone;

3.50

Conference call with case team; draft and revise

285.00

997.50 complaint

1.00

285.00

285.00 Draft and revise complaint

3.00

Draft and revise the complaint alleging NVRA violations;

285.00

855.00 confer with J.Idilbi on the same

6.00

Draft and revise complaint; coordinate with J.Idilbi on the

285.00 1,710.00 same

3.25

Revise complaint, coordinate with R.Malone and J.Idilbi

285.00

926.25 on the same

Page 1

Case 2:10-cv-00075-RBS -DEM Document 79-5 Filed 08/03/11 Page 2 of 21 PageID# 701

Phase 1 ‐ Assembling the Complaint
1 12/14/2009 Augustine Ripa
1 12/15/2009 Augustine Ripa
1 12/16/2009 Augustine Ripa
1 12/18/2009 Augustine Ripa 1 1/5/2010 Augustine Ripa 1 2/4/2010 Augustine Ripa 1 2/10/2010 Augustine Ripa 1 2/12/2010 Augustine Ripa 1 2/16/2010 Augustine Ripa 1 2/18/2010 Augustine Ripa
1 2/26/2010 Augustine Ripa 1 3/1/2010 Augustine Ripa
Phase 1 Totals

3.75 5.50
4.50
3.00
0.25 1.00 1.00 2.00 1.50 0.25 1.75
0.75 57.25

285.00
285.00
285.00
285.00 285.00 285.00 285.00 285.00 285.00 285.00
285.00 285.00

Revise and edit complaint; coordinate with D.Stewart, 1,068.75 J.Idilbi and R.Malone on the same;
Revise complaint; coordinate with D.Stewart, R.Malone and J.Idilbi on the same; analyze whether a claim under 42 USC 1983 is advantageous in this instance 1,567.50 Revise and finalize complaint; coordinate with J.Idilbi on the same; analyze the applicability of a 42 USC 1983 claim and its possible advantages / disadvantages; coordinate with the client on the same; research the proper methods of service of the named defendants; 1,282.50 Finalize revisions to complaint and send to client; coordinate logistics of filing and methods of serving the named defendants in their official capacities 855.00 Analyze client comments to the complaint and possible 71.25 substitution of another plaintiff Coordinate complaint filing strategies and procedures 285.00 285.00 Refine complaint and incorporate edits 570.00 Finalize complaint and materials for filing File complaint and initial materials in the case; confer 427.50 with R.Malone and B.Heard on the same 71.25 Review initial case filings Pursue acknowledgement of service and waiver of service on defendants; draft email and send complaint and summons packet regarding the same; 498.75 213.75 Coordinate and strategize service of defendants

16,316.25

Page 2

Case 2:10-cv-00075-RBS -DEM Document 79-5 Filed 08/03/11 Page 3 of 21 PageID# 702

Phase 1 ‐ Assembling the Complaint
1 11/11/2009 David O. Stewart Phase 1 Totals
1 11/18/2009 Jason Idilbi 1 11/19/2009 Jason Idilbi 1 11/23/2009 Jason Idilbi
1 12/4/2009 Jason Idilbi 1 12/7/2009 Jason Idilbi 1 12/9/2009 Jason Idilbi 1 12/10/2009 Jason Idilbi
1 12/11/2009 Jason Idilbi 1 12/21/2009 Jason Idilbi 1 2/1/2010 Jason Idilbi 1 2/1/2010 Jason Idilbi 1 2/4/2010 Jason Idilbi

0.50 $686.00

Conf. w/ R. Malone re lawsuit issues, and with Slater and 343.00 Mellor of Project Vote re same.

0.50

343.00

5.00

Reviewed background materials (Advancement Project /

Project Vote letters) and background law (NVRA);

attended conference call with R. Malone and A. Ripa;

researched and read legislative history materials

285.00 1,425.00

0.75

Reviewed legal treatises and case law regarding NVRA

285.00

213.75

0.75

Researched and read cases regarding section (i) of NVRA

285.00

213.75

2.00

Researched statutes and case law to determine whom to

sue and where; conferred with R. Malone and A. Ripa

regarding case and litigation strategy

285.00

570.00

1.25

Attended conference call with client to discuss

285.00

356.25 outstanding questions and to plan next steps

3.75

285.00 1,068.75 Drafted first draft of complaint

1.50

Conferred with A. Ripa regarding edits to complaint draft;

285.00

427.50 incorporated further edits

3.25

Met w/R. Malone and A. Ripa to discuss case and draft of

complaint; edited complaint to incorporate R. Malone

285.00

926.25 edits

0.25

Reviewed B. Heard response regarding draft complaint

285.00

71.25

1.25

Reviewed client edits to complaint and met with A. Ripa

285.00

356.25 and R. Malone to discuss edits

1.25

285.00

356.25 Revised complaint and incorporated client edits

1.00

Attended conference call with client to discuss revisions

285.00

285.00 to complaint and next steps in litigation

Page 3

Case 2:10-cv-00075-RBS -DEM Document 79-5 Filed 08/03/11 Page 4 of 21 PageID# 703

Phase 1 ‐ Assembling the Complaint
1 2/9/2010 Jason Idilbi 1 2/25/2010 Jason Idilbi 1 3/2/2010 Jason Idilbi
Phase 1 Totals
1 11/5/2009 Ryan Malone
1 11/6/2009 Ryan Malone 1 11/10/2009 Ryan Malone 1 11/11/2009 Ryan Malone 1 11/12/2009 Ryan Malone 1 11/15/2009 Ryan Malone 1 11/16/2009 Ryan Malone 1 11/17/2009 Ryan Malone 1 11/18/2009 Ryan Malone 1 11/23/2009 Ryan Malone 1 12/4/2009 Ryan Malone 1 12/11/2009 Ryan Malone 1 2/1/2010 Ryan Malone 1 2/8/2010 Ryan Malone 1 2/9/2010 Ryan Malone 1 2/16/2010 Ryan Malone

0.75
2.00
0.50
25.25
1.00 2.00
2.50
1.00 1.00 1.00 1.00
1.00 2.00 2.00
3.00 3.00
1.00 1.50
1.50
1.50

285.00 285.00 285.00
$505.00
$505.00 $505.00 $505.00 $505.00 $505.00 $505.00 $505.00 $505.00 $505.00 $505.00 $505.00 $505.00 $505.00 $505.00 $505.00

Reviewed client edits to complaint and conferred w/R. 213.75 Malone and A. Ripa regarding same
Reviewed emails and filed documents; conferred w/A. 570.00 Ripa regarding service on defendants 142.50 Attended conference call with A. Ripa and clients
7,196.25
Review pleadings and attorney general opinion; outline 505.00 discussion for talk with client.
Strategy meeting regarding EDVA complaint; read cases on Supremacy Clause; analyze standing and equal‐ 1,010.00 protection issues. Read cases and materials; discuss strategy with team; 1,262.50 telephone call with client. 505.00 Read cases and materials on NVRA. 505.00 Read cases and materials on NVRA. 505.00 Review prior Ropes materials on NVRA case. Review materials and discuss with A. Ripa strategy of 505.00 complaint. 505.00 Research equal protection question. 1,010.00 Read cases and outline complaint. Read NVRA cases and discuss standing issues with A. Ripa. 1,010.00 1,515.00 Review research and discuss issues with team. Read cases and discuss strategy; analyze standing and 1,515.00 other issues. 505.00 Revise complaint and discuss with team. Revise complaint and research service and procedural 757.50 issues. Revise complaint and research service and procedural 757.50 issues. Revise complaint and research service and procedural 757.50 issues.

Page 4

Case 2:10-cv-00075-RBS -DEM Document 79-5 Filed 08/03/11 Page 5 of 21 PageID# 704

Case 2:10-cv-00075-RBS -DEM Document 79-5 Filed 08/03/11 Page 6 of 21 PageID# 705

Phase 1 ‐ Assembling the Complaint 1 3/2/2010 Ryan Malone Phase 1 Totals
1 2/4/2010 Sheryl Beauregard Phase 1 Totals
1 8/13/2009 Yolanda Sheffield 1 10/7/2009 Yolanda Sheffield 1 10/8/2009 Yolanda Sheffield 1 10/14/2009 Yolanda Sheffield 1 11/9/2009 Yolanda Sheffield 1 11/10/2009 Yolanda Sheffield
1 12/14/2009 Yolanda Sheffield

1.00 27.00
1.25
1.25

$505.00

505.00 Respond to questions regarding service issues.

13,635.00

$155.00

Research rules regarding filing complaint. Attend teleconference regarding filing and serving complaint. 193.75

193.75

1.00 $349.00 0.20 $349.00 0.60 $349.00 0.90 $349.00 0.80 $349.00 1.20 $349.00
0.50 $349.00

Attend strategy session with B. Heard, email information for conflicts check to DLA Piper, identify all potential 349.00 clients and defendants for the lawsuit.
Send correspondence to B. Heard regarding lack of pro‐ 69.80 bono counsel, continue discussions on next steps.
Reach out to local pro‐bono counsel that may be 209.40 interested in participating in lawsuiit.
Review information in preparation of meeting with Ropes 314.10 and Gray, attend meeting
Arrange strategy meeting; speak to W. Hagens regarding being a representative; and speak to B. Heard regarding 279.20 plaintiff's concerns. Attend strategy call, review correspondence from 418.80 potential plaintiff, and prep for meeting. Discuss impact of other litigation on this lawsuit. Discuss changes to retainer agreement, send email to R and G about representation letter. 174.50

Page 5

Case 2:10-cv-00075-RBS -DEM Document 79-5 Filed 08/03/11 Page 7 of 21 PageID# 706

Phase 1 ‐ Assembling the Complaint
1 12/16/2009 Yolanda Sheffield 1 12/18/2009 Yolanda Sheffield 1 12/21/2009 Yolanda Sheffield 1 1/4/2010 Yolanda Sheffield 1 1/5/2010 Yolanda Sheffield 1 1/8/2010 Yolanda Sheffield 1 1/27/2010 Yolanda Sheffield 1 2/1/2010 Yolanda Sheffield 1 2/8/2010 Yolanda Sheffield 1 2/9/2010 Yolanda Sheffield 1 2/16/2010 Yolanda Sheffield
1 3/1/2010 Yolanda Sheffield

0.60 $349.00 0.90 $349.00 0.70 $349.00 0.50 $349.00
0.50 $349.00
0.30 $349.00 0.40 $349.00
1.00 $349.00 0.20 $349.00 0.50 $349.00 0.30 $349.00
0.40 $349.00

Call B. Heard about changing lawsuit to include 1983 claim. Discuss changes and implications of 1983 claim with B. Heard. 209.40 Review compliaint in Know case that may have similar 314.10 claims NVRA lawsuit. Discuss standing issue with B. Heard, discuss standing 244.30 with B. Mellor. 174.50 Review and make final edits to complaint.
Discuss change in plaintiff with B. Heard. Send email to 174.50 Ropes and Gray identifying change in status to plaintiffs.
Contact B.H. to assess if Advancement Project will be the plaintiff for the lawsuit; 2. Discuss plaintiff issue with B. 104.70 Mellor and Brad H. 139.60 Discuss plaintiffs, review edits to complaint. Make revisions to complaint identifyiing Project Vote as the plaintiff; Continue to make revisions to VA complaint 349.00 and send to opposing counsel.
69.80 Review correspondence from B. Heard and respond. Review revisions to complaint; Continue revisions to
174.50 complaint, send to co‐counsel. Reviewed final edits to complaint, send email authorizing
104.70 sending email.
Review emails, follow up with B. Heard on status of service; review email correspondence from A. Ripa on 139.60 status of service; respond to B. Heard regarding status

Page 6

Case 2:10-cv-00075-RBS -DEM Document 79-5 Filed 08/03/11 Page 8 of 21 PageID# 707

Phase 1 ‐ Assembling the Complaint
1 3/2/2010 Yolanda Sheffield Phase 1 Totals Phase 1

1.10 $349.00

Review and respond to B. Heard regarding service. Review emails from Augie and counsel for defendants, arrange time to discuss; Review Virginia local rules on service; review email from R. Malone; review email from A. Ripa; review correspondence regarding opposing 383.90 counsel, agree to next steps

12.60

4,397.40

Total Hours 123.85

Total Fee 42,081.65

Page 7

Case 2:10-cv-00075-RBS -DEM Document 79-5 Filed 08/03/11 Page 9 of 21 PageID# 708

Phase 2 ‐ Response to Defendants' Motion to Dismiss

Phase Date

Name

2 3/26/2010 Augustine Ripa

2 3/29/2010 Augustine Ripa

2 3/30/2010 Augustine Ripa 2 3/31/2010 Augustine Ripa

2 4/1/2010 Augustine Ripa

2 4/2/2010 Augustine Ripa 2 4/4/2010 Augustine Ripa

2 4/5/2010 Augustine Ripa

2 4/6/2010 Augustine Ripa

2 4/7/2010 Augustine Ripa

2 4/8/2010 Augustine Ripa

2 4/9/2010 Augustine Ripa 2 4/15/2010 Augustine Ripa
Phase 2 Totals
2 2/1/2010 Brian Mellor 2 3/30/2010 Brian Mellor 2 4/6/2010 Brian Mellor

Hours Rate

Fee

Description

Analyze Defendants' motion to dismiss and appropriate response strategy

1.00 $285.00 $285.00

3.50

Analyze applicable case law and draft opposition to Defendants' motion to

$285.00 $997.50 dismiss

8.00

Analyze applicable case law and draft opposition to Defendants' motion to

dismiss; draft joint notice to court regarding date of service; confer with

$285.00 $2,280.00 opposing counsel on the same

4.75

Analyze applicable case law and draft opposition to Defendants' motion to

$285.00 $1,353.75 dismiss

8.00

Draft opposition to defendants' motion to dismiss; analyze pertinent legal

precedent supporting this opposition and incorporate those arguments into

$285.00 $2,280.00 the draft

9.00

Draft opposition to defendants' motion to dismiss; analyze pertinent legal

precedent supporting this opposition and incorporate those arguments into

$285.00 $2,565.00 the draft

1.50 $285.00 $427.50 Revise and edit opposition to defendants' motion to dismiss

8.00

Revise and edit opposition to defendants' motion to dismiss; research and

analyze precedent affecting the arguments made and incorporate such

$285.00 $2,280.00 precedent into the opposition

5.50

Revise and edit opposition to defendants' motion to dismiss; research and

analyze precedent affecting the arguments made and incorporate such

$285.00 $1,567.50 precedent into the opposition

5.00

Revise and edit opposition to defendants' motion to dismiss; research and

analyze precedent affecting the arguments made and incorporate such

$285.00 $1,425.00 precedent into the opposition

2.00

Revise and edit opposition to defendants' motion to dismiss; research and

analyze precedent affecting the arguments made and incorporate such

$285.00 $570.00 precedent into the opposition

4.00

Revise and edit opposition to defendants' motion to dismiss; research and

analyze precedent affecting the arguments made and incorporate such

$285.00 $1,140.00 precedent into the opposition

1.00 $285.00 $285.00 Analyze reply brief of defendants

61.25

$17,456.25

0.20 $686.00 0.80 $686.00 0.40 $686.00

$137.20 Review Complaint $548.80 Call with Yolanda: Re Mtn to Dismiss and send Harkless documents $274.40 Review Draft Opp to Mtn to Dismiss

Page 8

Case 2:10-cv-00075-RBS -DEM Document 79-5 Filed 08/03/11 Page 10 of 21 PageID# 709

Phase 2 ‐ Response to Defendants' Motion to Dismiss

Phase 2 Totals
2 4/4/2010 Doug Hallward‐Driemeier 2 4/6/2010 Doug Hallward‐Driemeier
Phase 2 Totals
2 3/26/2010 Jason Idilbi
2 3/30/2010 Jason Idilbi 2 3/31/2010 Jason Idilbi 2 4/1/2010 Jason Idilbi 2 4/2/2010 Jason Idilbi 2 4/5/2010 Jason Idilbi 2 4/6/2010 Jason Idilbi 2 4/7/2010 Jason Idilbi 2 4/8/2010 Jason Idilbi 2 4/9/2010 Jason Idilbi 2 4/15/2010 Jason Idilbi
Phase 2 Totals 2 3/29/2010 Ryan Malone 2 3/31/2010 Ryan Malone 2 4/1/2010 Ryan Malone

1.40

$960.40

1.25 $569.00 1.50 $569.00

Review complaint and motion to dismiss, prepare comments for response. $711.25
Review and comment on draft brief; discuss comments with Jason and Augie. $853.50

2.75

$1,564.75

reviewed Defendants' motion to dismiss; conferred w/A. Ripa; contacted

3.50 $285.00 $997.50 clients to set up meeting

8.50

attended team meeting w/R. Malone and A. Ripa; conferred w/clients by

phone regarding next steps; began drafting response to motion to dismiss

$285.00 $2,422.50

8.50

researched legislative history and continued drafting response to motion to

$285.00 $2,422.50 dismiss

3.50

drafted factual background introductory section for opposition brief; reviewed

$285.00 $997.50 legislative history of NVRA

3.00

continued reviewing legislative history and drafting opposition brief; reviewed

$285.00 $855.00 edits with A. Ripa

1.25 $285.00 $356.25 reviewed A. Ripa edits to opposition brief

4.00

researched other cases re: informational injury and incorporated into

$285.00 $1,140.00 opposition brief

1.75

research EPA v. Mink and incorporate into memo; incorporated edits per A.

$285.00 $498.75 Ripa

2.00

incorporate document processing edits, J. McCarthy edits and sent opposition

$285.00 $570.00 brief to client

1.75

incorporated final revisions; prepared notice request; filed documents

$285.00 $498.75

0.50

reviewed Defendants' Reply to our opposition to the motion to dismiss

$285.00 $142.50

38.25

$10,901.25

2.00 $505.00 $1,010.00 Analyze and outline response to motion to dismiss. 2.00 $505.00 $1,010.00 Research NVRA and standing issues. 2.00 $505.00 $1,010.00 Revise and outline response to motion to dismiss.

Page 9

Case 2:10-cv-00075-RBS -DEM Document 79-5 Filed 08/03/11 Page 11 of 21 PageID# 710

Phase 2 ‐ Response to Defendants' Motion to Dismiss

2 4/5/2010 Ryan Malone 2 4/6/2010 Ryan Malone 2 4/7/2010 Ryan Malone
Phase 2 Totals
2 3/26/2010 Yolanda Sheffield 2 3/29/2010 Yolanda Sheffield
2 3/30/2010 Yolanda Sheffield 2 4/6/2010 Yolanda Sheffield 2 4/9/2010 Yolanda Sheffield
2 4/15/2010 Yolanda Sheffield
2 4/16/2010 Yolanda Sheffield Phase 2 Totals
Phase 2

3.25

Revise opposition to motion to dismiss; read cases and analyze standing

$505.00 $1,641.25 argument.

4.50 $505.00 $2,272.50 Edit draft response.

2.00

Discuss exhibits and other issues with team; read VA SUpreme Court cases.

$505.00 $1,010.00

15.75

$7,953.75

0.2 $349.00 0.8 $349.00

Review email correspondence regarding motion to dismiss; schedule time to $69.80 discuss response; and print out relevant documents. $279.20 Review documents filed by opposing counsel on motion to dismiss.

Review motion to dismiss pleadings and discuss strategy for response with B. 1.5 $349.00 $523.50 Mellor, review Harkless opinion, attend meeting with co‐counsel.

1.6 $349.00 0.5 $349.00
1.1 $349.00

$558.40 Review correspondence and draft response to Virginia motion to dismiss. $174.50 Review edits to opposition on motion to dismiss.
Review response to Plaintiff's reply regarding the motion to dismiss; review correspondence regarding motion; review docket and case law on Jenkins v. $383.90 Ousse.

0.5 $349.00

Respond to correspondence regarding potential need for surreply; discussed amending lawsuit to include claim regarding reasonableness of request for $174.50 voter registration list and decided against it.

6.20

$2,163.80

Total Hours 125.60

Total Fee $41,000.20

Page 10

Phase 3 ‐ Oral Argument

Phase Date

Name

3 7/27/2010 Augustine Ripa

3 7/28/2010 Augustine Ripa
3 7/29/2010 Augustine Ripa
3 7/30/2010 Augustine Ripa Phase 3 Totals
3 7/27/2010 Jason Idilbi
3 7/28/2010 Jason Idilbi
3 7/29/2010 Jason Idilbi 3 7/30/2010 Jason Idilbi 3 8/2/2010 Jason Idilbi 3 8/4/2010 Jason Idilbi
Phase 3 Totals 3 7/18/2010 Ryan Malone 3 7/25/2010 Ryan Malone

Hours

Rate

3.50 2.00

7.00 7.50

Fee

Description

Strategize and prepare for hearing on motion to

$294.00 $1,029.00 dismiss in Norfolk, VA

Prepare for hearing on defendants' motion to dismiss

in Norfolk Virginia, meet with the client, R.Malone

and J.Idilbi regarding the same;

$294.00

$588.00

Prepare for hearing on defendants' motion to dismiss

in Norfolk Virginia, travel to the Norfolk for the same

$294.00 $2,058.00

Prepare for and attend hearing in the Eastern District

of Virginia, Norfolk Division; travel from Norfolk back

$294.00 $2,205.00 to Washington, DC

20.00

$5,880.00

Reviewed pleadings and cases; attended team

4.50

$294.00 $1,323.00 meeting to discuss preparation for hearing

2.75

Attended meeting and conference call to discuss

hearing preparation with client; researched

$294.00

$808.50 Greidinger case

6.00

Finalized preparation for departure to hearing,

traveled to Norfolk; attended team strategy

$294.00 $1,764.00 discussions to prepare for hearing

8.00

$294.00 $2,352.00 Attended hearing on Plaintiff's MTD

0.75

Prepared PV response to Defendants' submission

$294.00

$220.50

0.50

Incorporated revisions to response to Defendants'

$294.00

$147.00 submission; circulated to team

22.50

$6,615.00

6.00

$522.00 $3,132.00 Begin preparation for oral argument in EDVA.

3.00

$522.00 $1,566.00 Preparation for oral argument.

Page 11

Case 2:10-cv-00075-RBS -DEM Document 79-5 Filed 08/03/11 Page 12 of 21 PageID# 711

Case 2:10-cv-00075-RBS -DEM Document 79-5 Filed 08/03/11 Page 13 of 21 PageID# 712

Phase 3 ‐ Oral Argument
3 7/28/2010 Ryan Malone 3 7/29/2010 Ryan Malone 3 7/30/2010 Ryan Malone 3 8/2/2010 Ryan Malone
Phase 3 Totals

5.00 14.50
9.50 1.25
39.25

3 7/27/2010 Sheryl Beauregard

0.75

3 7/29/2010 Sheryl Beauregard Phase 3 Totals
Phase 3

0.50
1.25
Total Hours 83.00

$522.00 $522.00 $522.00 $522.00

Prepare for hearing; meet with D. Hallward‐ $2,610.00 Driemeier.
Travel from Washington to Norfolk; prepare for $7,569.00 hearing.
Prepare for and attend motions hearing; travel from $4,959.00 Norfolk to Washington.
Attention to e‐mails and prepare response to $652.50 Commonwealth.

$20,488.50

$161.00 $161.00

Review docket for material needed for upcoming hearing, discuss same with A. Ripa. Contact company to discuss location of documents, and timing of retrieval. Discuss retrieval timing with team. $120.75 Correspond with retrieval company and team regarding status of document retrieval, and options for retrieving documents. Receipt and review requested documents, forward to team. $80.50

$201.25

Total Fee $33,184.75

Page 12

Phase 4 ‐ Pre‐trial Conferences

Phase Date

Name

4 11/8/2010 Augustine Ripa
4 11/9/2010 Augustine Ripa 4 11/16/2010 Augustine Ripa 4 11/19/2010 Augustine Ripa 4 11/22/2010 Augustine Ripa 4 11/29/2010 Augustine Ripa
4 11/30/2010 Augustine Ripa 5 12/2/2010 Augustine Ripa 4 4/6/2011 Augustine Ripa 4 4/12/2011 Augustine Ripa 4 4/17/2011 Augustine Ripa

Hours Rate 3.00
1.00
1.50 1.00 1.75 8.00 13.50
0.25 1.00 4.00 0.75

Fee

Description

Calls with client to discuss next steps in light of court's

10/29/10 order; discuss the same with R.Malone an

J.Idilbi; review the court's order re: the same; draft

consent decree for proposal to the defendants;

$294.00

$882.00

Call with client to discuss next steps in light of court's

10/29/10 order; finalize strategy re: the same with

R.Malone an J.Idilbi; revise consent decree for

$294.00

$294.00 proposal to the defendants;

Review and research civil discovery rules in

preparation for call on scheduling order; coordinate

$294.00

$441.00 schedule of the same

Call with clients in preparation for 26(f) conference on

11/22; prepare for the same and the conference

$294.00

$294.00

26(f) conference with counsel for the defendants;

prepare for the same; follow up with clients re: the

$294.00

$514.50 outcome of the same

Travel to and prepare for 16(b) conference in Norfolk,

Virginia at the U.S. District Court for the EDVA

$294.00 $2,352.00

Prepare for 16(b) conference in Norfolk, Virginia at

the U.S. District Court for the EDVA; attend and

conduct the same; travel back to Washington, DC

$294.00 $3,969.00 from the same

Emails with opposing counsel re: initial disclosures

$294.00

$73.50 and court's scheduling order

Prepare for scheduling conference; confer re:

$294.00

$294.00 scheduling of the same

$294.00 $1,176.00 Draft, revise and file pretrial disclosures

Draft and revise objections to Defendants pretrial

$294.00

$220.50 disclosures

Page 13

Case 2:10-cv-00075-RBS -DEM Document 79-5 Filed 08/03/11 Page 14 of 21 PageID# 713

Phase 4 ‐ Pre‐trial Conferences
4 4/19/2011 Augustine Ripa 4 4/20/2011 Augustine Ripa 4 4/21/2011 Augustine Ripa 4 4/26/2011 Augustine Ripa
4 5/11/2011 Augustine Ripa Phase 4 Totals
4 12/7/2010 Brian Mellor 4 12/14/2010 Brian Mellor
Phase 4 Totals
4 10/29/2010 Jason Idilbi 4 11/8/2010 Jason Idilbi 4 11/9/2010 Jason Idilbi
4 11/10/2010 Jason Idilbi
4 11/19/2010 Jason Idilbi 4 11/22/2010 Jason Idilbi

1.50
0.50 0.50 1.50 1.25
41.00 0.70 0.40 1.10 1.00 2.75 1.00 2.25
1.50
0.75

$294.00 $294.00 $294.00 $294.00
$294.00

Draft, revise and file objections to pretrial disclosures; correspondence with opposing counsel re: the same; prepare for upcoming attorney's conference $441.00 File documents cited in pretrial disclosures with $147.00 opposing counsel Discuss settlement conference with the clerk; $147.00 coordinate with R.Malone re: the same $441.00 Draft, revise and circulate draft pretrial order Call re: status/settlement conference; coordinate on the same with R.Malone and schedule with the court $367.50

$12,054.00

$709.00 $709.00

$496.30 Review Disclosures and call with Lit Team. Review Disclosure email and call Jenny Lawson Re:
$283.60 discoverable information

$779.90

$294.00 $294.00 $294.00
$294.00
$294.00 $294.00

Reviewed RBS opinion denying motion to dismiss $294.00
Attended conference call with client; revised motion $808.50 to withdraw documents $294.00 Attended conference call with client
Revised motion to withdraw documents; e‐filed; sent to all parties for endorsement; reviewed answers to complaint to determine which allegations were admitted/denied by each defendant $661.50 Reviewed A. Ripa email re: federal rules; attended conference call with clients; prepared bullet‐point list $441.00 of admitted allegations $220.50 Attended Rule 26(f) conference

Page 14

Case 2:10-cv-00075-RBS -DEM Document 79-5 Filed 08/03/11 Page 15 of 21 PageID# 714

Phase 4 ‐ Pre‐trial Conferences

4 11/29/2010 Jason Idilbi 4 11/30/2010 Jason Idilbi 5 12/6/2010 Jason Idilbi

5 12/7/2010 Jason Idilbi

12/13/2010

5

Jason Idilbi

12/14/2010

5

Jason Idilbi

5 1/27/2011 Jason Idilbi

Phase 4 Totals

4 10/29/2010 Ryan Malone 4 11/1/2010 Ryan Malone 4 11/3/2010 Ryan Malone 4 11/15/2010 Ryan Malone

4 11/16/2010 Ryan Malone

4 11/22/2010 Ryan Malone

7.00 13.00
0.75 0.50
1.00 3.00
1.00
29.25
5.00 3.00 0.75 2.00 2.50
3.00

$294.00 $294.00 $294.00
$294.00 $294.00
$294.00 $294.00

Prepared materials for conference and traveled to $2,058.00 Norfolk
Attended Rule 16(b) conference and travel back to DC $3,822.00
Emailed client regarding initial disclosures and $220.50 potential government intervention
Attended teleconference with client to discuss initial disclosures and potential government intervention $147.00 Drafted initial disclosures and sent to A. Ripa for $294.00 review Revised initial disclosures per R. Malone edits and sent to client for review and then filed on opposing $882.00 counsel Prepared draft proposed scheduling order and $294.00 proposed joint motion re: same

$10,437.00

$522.00 $522.00 $522.00 $522.00 $522.00
$522.00

Analyze opinion and prospective litigation options. $2,610.00
Review and analyze court's opinion; discuss same with $1,566.00 team.
Plan strategy for discovery period; discuss consent $391.50 order with team.
Map out discovery schedule; call with team regarding $1,044.00 summary judgment analysis.
Analyze answer; conference calls with team; plan strategy for 26(f) conference and discovery. $1,305.00 Attend 26(f) conference; begin plan for summary judgment motion; research local rules and privacy issues; meet with team regarding strategy. $1,566.00

Page 15

Case 2:10-cv-00075-RBS -DEM Document 79-5 Filed 08/03/11 Page 16 of 21 PageID# 715

Case 2:10-cv-00075-RBS -DEM Document 79-5 Filed 08/03/11 Page 17 of 21 PageID# 716

Phase 4 ‐ Pre‐trial Conferences
4 11/29/2010 Ryan Malone 4 11/30/2010 Ryan Malone 5 12/7/2010 Ryan Malone 4 4/12/2011 Ryan Malone 4 4/19/2011 Ryan Malone
4 4/21/2011 Ryan Malone 4 5/11/2011 Ryan Malone
Phase 4 Totals
4 11/8/2010 Sheryl Beauregard
4 11/10/2010 Sheryl Beauregard Phase 4 Totals Phase 4

7.00 14.00
0.25 2.00 2.00 3.00
1.50
46.00
0.75
0.75 1.50 Total Hours 118.85

$522.00 $522.00 $522.00 $522.00 $522.00
$522.00 $522.00

Travel from Washington to Norfolk, VA for hearing. $3,654.00
Prep for hearing, attend hearing, discuss strategy w/ $7,308.00 team, travel from Norfolk to DC.
$130.50 Review initial disclosures. $1,044.00 Prepare pretrial disclosures.
Prepare pretrial materials and preparation for $1,044.00 attorney conference.
Conference with counsel; draft and revise pretrial order; plan strategy for summary judgment/trial plan. Discuss potential witnesses with A. Ripa. $1,566.00 Plan strategy for status/settlement hearing; call with $783.00 client regarding same.

$24,012.00

$161.00 $161.00

Research document required along with Motion to Withdrawal, discuss Agreed Order with Clerk. Research examples of filings, forward to J. Idilbi for $120.75 review. Discuss process for Agreed Order with the Court; update memo, motion and Order; finalize, file with court, forward copy to J. Idilbi. $120.75

$241.50

Total Fee $47,524.40

Page 16

Case 2:10-cv-00075-RBS -DEM Document 79-5 Filed 08/03/11 Page 18 of 21 PageID# 717

Phase 5 ‐ Summary Judgment Proceedings

Phase Date

Name

5 1/4/2011 Augustine Ripa

5 1/7/2011 Augustine Ripa

5 3/1/2011 Augustine Ripa 5 3/2/2011 Augustine Ripa

5 3/3/2011 Augustine Ripa

5 3/4/2011 Augustine Ripa 5 3/24/2011 Augustine Ripa 5 3/25/2011 Augustine Ripa 5 3/29/2011 Augustine Ripa 5 3/30/2011 Augustine Ripa 5 6/6/2011 Augustine Ripa
5 6/7/2011 Augustine Ripa

Hours Rate

Fee

Description

1.25

Review, revise and draft portions of draft motion for

$294.00

$367.50 summary judgment

3.50

Review, revise and draft portions of draft motion for

$294.00 $1,029.00 summary judgment

1.00

Review defendant's motion for summary judgment;

begin to formulate response to the same; coordinate

with J.Lewis, R.Malone, and D.Hallward Dreimeier re:

$294.00

$294.00 the same

2.50

Review defendants' motion for summary judgment;

begin to formulate response to the same; coordinate

$294.00

$735.00 with J.Lewis re: the same;

3.25

Continue to formulate response to the Defendants'

opposition to motion for summary judgment;

coordinate with J.Lewis and R.Malone re: the same

$294.00

$955.50

3.00

Continue to formulate response to the Defendants'

opposition to motion for summary judgment;

coordinate with J.Lewis and R.Malone re: the same

$294.00

$882.00

3.50

Prepare for settlement conference and possible oral

$294.00 $1,029.00 argument re: motion for summary judgment

2.50

Prepare for settlement conference and possible oral

$294.00

$735.00 argument re: motion for summary judgment

1.50

Prepare for settlement conference and possible oral

$294.00

$441.00 argument re: motion for summary judgment

3.75

Prepare for settlement conference and possible oral

$294.00 $1,102.50 argument re: motion for summary judgment

6.50

Prepare for summary judgment hearing and status

$374.00 $2,431.00 conference;

3.50

Prepare for summary judgment hearing and status

conference; attend the same; travel from Norfolk VA to

$374.00 $1,309.00 Washington DC from the same;

Page 17

Phase 5 ‐ Summary Judgment Proceedings
5 6/8/2011 Augustine Ripa
5 6/9/2011 Augustine Ripa
5 6/10/2011 Augustine Ripa 5 6/16/2011 Augustine Ripa 5 6/23/2011 Augustine Ripa 5 6/29/2011 Augustine Ripa 5 6/30/2011 Augustine Ripa
Phase 5 Totals
5 1/27/2011 Brian Mellor 5 3/2/2011 Brian Mellor 5 4/29/2011 Brian Mellor
Phase 5 Totals 5 1/26/2011 Doug Hallward‐Driemeier 5 3/1/2011 Doug Hallward‐Driemeier 5 3/16/2011 Doug Hallward‐Driemeier
Phase 5 Totals
5 12/1/2010 Jason Idilbi

4.50
17.00
8.25
0.50 2.00 1.00 0.50 69.50
0.30 0.40 3.00 3.70 0.75 0.25 1.25
2.25
0.75

$374.00
$374.00
$374.00 $374.00 $374.00 $374.00 $374.00

Meet with D.Hallward‐Dreimier and R.Malone re: hearing; continue to prepare for summary judgment $1,683.00 hearing and status conference; Prepare for summary judgment hearing and status conference; travel to Norfolk VA for the same; $6,358.00 Prepare for summary judgment hearing and status conference; attend the same; travel from Norfolk VA to $3,085.50 Washington DC from the same; Call with clients to discuss next steps and upcoming $187.00 court filing Draft and revise filing in response to Court's Jun 10 $748.00 order $374.00 Revise filing in response to Court's Jun 10 order $187.00 Revise filing in response to Court's Jun 10 order

$23,933.00

$709.00 $709.00 $709.00

Review Memo in support of Mtn for Summary $212.70 Judgment $283.60 Review Def Opp to SJ and SJ $2,127.00 Review Def SJ Memo and Exhibits

$2,623.30

$589.00 $589.00 $589.00

$441.75 Review of summary judgment motion. Review of opposition to summary judgment motion.
$147.25 Review and revise reply brief in support of summary
$736.25 judgment.

$1,325.25

$294.00

Emailed client regarding summary of 16(b) conference $220.50 and began SJ research

Page 18

Case 2:10-cv-00075-RBS -DEM Document 79-5 Filed 08/03/11 Page 19 of 21 PageID# 718

Phase 5 ‐ Summary Judgment Proceedings

12/15/10

5

Jason Idilbi

12/16/10

5

Jason Idilbi

5 12/20/10 Jason Idilbi

5 12/21/10 Jason Idilbi

5 12/22/10 Jason Idilbi

5 12/27/10 Jason Idilbi

12/28/10

5

Jason Idilbi

5 1/7/2011 Jason Idilbi

5 1/13/2011 Jason Idilbi

5 1/18/2011 Jason Idilbi

Phase 5 Totals

5 12/2/2010 Ryan Malone 5 1/12/2011 Ryan Malone 5 3/4/2011 Ryan Malone
5 3/8/2011 Ryan Malone 5 3/10/2011 Ryan Malone 5 3/14/2011 Ryan Malone
5 3/22/2011 Ryan Malone

5 4/29/2011 Ryan Malone 5 6/9/2011 Ryan Malone 5 6/10/2011 Ryan Malone

1.75
1.25
7.00 5.75 2.00 2.00 2.00
5.25 1.50 4.75
34.00
3.00
3.50 1.00 2.00
2.00 3.00 2.00
1.50
8.00
9.25

$294.00
$294.00 $294.00 $294.00 $294.00 $294.00
$294.00 $294.00 $294.00
$294.00

Researched case law pertaining to standard for $514.50 summary judgment
Researched case law pertaining to standard for summary judgment and searched for sample filings $367.50 $2,058.00 Drafted PV motion for SJ $1,690.50 Drafted PV motion for SJ $588.00 Drafted PV motion for SJ $588.00 Finalized draft PV motion for SJ Finalized draft PV motion for SJ and sent to A. Ripa for $588.00 review $1,543.50 Revise memorandum and send to R. Malone $441.00 Revise memorandum per R. Malone edits Revised memorandum per R. Malone edits; sent to D. H‐ $1,396.50 D and client for review

$9,996.00

$522.00 $522.00 $522.00
$522.00 $522.00 $522.00
$522.00
$522.00
$540.00
$540.00

Review pleadings and begin outline of summary $1,566.00 judgment motion. $1,827.00 Edit summary judgment motion.
$522.00 Analyze reply and discuss with team. Outline reply and meet with team regarding same.
$1,044.00 $1,044.00 Revise draft reply. $1,566.00 Revise and edit reply.
Outline plan for settlement discussions; review cases. $1,044.00
Outline potential testimony and analyze strategy for possible settlement, summary judgment, trial issues. $783.00 Travel to Norfolk; prepare for status conference with A. $4,320.00 Ripa. Preparation for and attend status conference; travel $4,995.00 from Norfolk to DC.

Page 19

Case 2:10-cv-00075-RBS -DEM Document 79-5 Filed 08/03/11 Page 20 of 21 PageID# 719

Case 2:10-cv-00075-RBS -DEM Document 79-5 Filed 08/03/11 Page 21 of 21 PageID# 720

Phase 5 ‐ Summary Judgment Proceedings 5 6/20/2011 Ryan Malone 5 6/27/2011 Ryan Malone Phase 5 Totals 5 1/18/2011 Sheryl Beauregard 5 1/19/2011 Sheryl Beauregard 5 1/21/2011 Sheryl Beauregard 5 1/27/2011 Sheryl Beauregard
5 3/23/2011 Sheryl Beauregard
5 3/24/2011 Sheryl Beauregard 5 6/29/2011 Sheryl Beauregard
Phase 5 Totals Phase 5

1.00

$540.00

$540.00 Outline supplemental memorandum.

1.00

Review research on fees; read cases; revise

supplemental memorandum and analyze state

$540.00

$540.00 affidavit.

37.25

$19,791.00

1.50

Cite check and reformat citations for Summary

$161.00

$241.50 Judgment Memo.

0.75

Draft letter to Clerk, prepare Pro Hac motion for filing.

Prepare associated documents; forward Pro Hac to

$161.00

$120.75 Court for processing.

0.25

Receipt and review filed Pro Hac, forward for file.

$161.00

$40.25

2.25

Proofread, citecheck, quote check, and Shepardize

$161.00

$362.25 Summary Judgment documents.

3.75

Review and update draft withdrawal documents.

Review summary judgment document for plaintiff and

defendant, begin to gather referenced documents in

advance of oral argument.

$161.00

$603.75

7.25

Pull all authorities and documents cited in plaintiff and

defendant summary judgment briefs, prepare

reference binders in preparation for oral argument.

$161.00 $1,167.25

1.00

Cite check Supplemental Memorandum, log onto ECF

and verify credentials for filing. Arrange for filing of

$166.00

$166.00 documents.

16.75

$2,701.75

Total Hours 163.45

Total Fee $60,370.30

Page 20

Case 2:10-cv-00075-RBS -DEM Document 79-6 Filed 08/03/11 Page 1 of 2 PageID# 721
EXHIBIT F

Costs & Expenses

Date

Description

2/3/2010 Filing Fee ‐ Paid to: Clerk ‐ U.S. District, Court‐Filing Fee

3/19/2010 Miscellaneous ‐ Paid to: Clerk ‐ U.S. District, Court‐Pro Hac Vice Application Fee

4/8/2010 Court Fees ‐ Paid to: Clerk, U.S. District, Court, E. District of VA‐Pro Hac Vice, Application Fee 4/29/2010 Court Fees ‐ Paid to: Clerk of Court‐Pro Hac, Vic Fee 4/30/2010 Filing Fee ‐ Paid to: City of Norfolk Sheriff's, Office; Civil Service Fee. 4/30/2010 Civil Service fee ‐ Paid to: C.T. Woody Jr.‐, Sheriff of City of Richmond 4/30/2010 Service of Process ‐ Paid to: C.T. Woody Jr.‐, Sheriff of City of Richmond
6/9/2011 Car to Norfolk, VA ‐ Niyati Shah 6/9/2011 Gas ‐ Niyati Shah
Total Costs & Expenses

Project Vote Costs & Expenses Ropes & Gray Costs & Expenses

Amount $350.00 $100.00
$50.00 $50.00 $12.00 $12.00 $12.00 $48.02 $22.98 $657.00
$71.00 $586.00

Case 2:10-cv-00075-RBS -DEM Document 79-6 Filed 08/03/11 Page 2 of 2 PageID# 722

 
 Case 2:10-cv-00075-RBS -DEM Document 80 Filed 08/10/11 Page 1 of 3 PageID# 723
FILED

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

AUG 1 0 2011

NORFOLK DIVISION

PROJECT VOTENOTING FOR

)

AMERICA, INC.,

)

)

Plaintiff,

) )

v.

)

)

CLERK. U.S. DISTRICT COURT NOH_:coLK VA

ELISA LONG,
In Her Official Capacity as General Registrar ofNorfolk, VA

) CIVIL ACTION NO.: 2:10cv75 )
)
)

)

DONALD PALMER,

)

In His Official Capacity as Secretary, Virginia )

State Board ofElections,

)

)

Defendants.

)

CONSENT ORDER

The parties to this action agree, as shown by the signatures of their counsel below, that

the issue of attorneys' fees and costs, sought by the Plaintiff in its Motion to Recover Attorneys'

Fees and Costs, should be stayed pending the outcome of the appeal of this case to the U.S.

Court of Appeals for the Fourth Circuit.

The Court finds it appropriate to stay this Motion pending the outcome of the appeal and

so hereby STAYS the Motion until further notice, including any further briefing on the Motion.

It is so ORDERED.

t3 ENTERED:

I \0 I 2011

SIGNED

Is/
Rebecca Beach Smith
ur.!ted States District Judge~
Hon. Rebecca Beach Smith United States District Judge

25655237_3

Case 2:10-cv-00075-RBS -DEM Document 80 Filed 08/10/11 Page 2 of 3 PageID# 724
Respectfully submitted,
DONALD PALMER Defendant By:
St~VSJ!:qf
Attorney for Defendant Palmer Office of the Attorney General 900 East Main Street Richmond, Virginia 23219 Phone: (804) 786-1586 Fax: (804) 371-2087 Email: shall@oag.state.va.us
ELISA LONG Defendant
e . Rosen, Esquire L" a Ehrich, Esquire Virginia Bar No. 22689 Attorney for Elisa Long Pender & Coward 222 Central Park Avenue Virginia Beach, Virginia 23462 Phone: (757) 490-6253 Fax: (757) 497-1914 Email: jrosen@pendercoward.com
-2-
25655237_3

Case 2:10-cv-00075-RBS -DEM Document 80 Filed 08/10/11 Page 3 of 3 PageID# 725 PROJECT VOTE Plaintiff By: M. Malone, Esquire Augustine M. Ripa, Esquire David 0. Stewart, Esquire Douglas H. Hallward-Driemeier, Esquire Ropes & Gray LLP 700 12th Street NW Suite 900 Washington, D.C. 20005
-3-
256,55237_3

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA
Norfolk Division
PROJECT VOTE/VOTING FOR AMERICA, INC.,

FILED
AUG 2 2 2012
CLERK, U.S. DISTRICT COURT
NORcOLK. VA

Plaintiff,

v.
ELISA LONG, in her Official Capacity as General Registrar of Norfolk, Virginia,

CIVIL No. 2:10cv75

and
DONALD PALMER, in his Official Capacity as Secretary, State Board of Elections,

Defendants.

OPINION AND ORDER
The court lifted its stay of this case on July 20, 2012, which stay had been issued by Order of August 1, 2011. The court then directed the parties to file responses concerning the Consent Order entered by the court on August 10, 2011, staying consideration of Project Vote/Voting for America, Inc.'s ("Project Vote") August 3, 2011, Motion To Recover Attorneys' Fees and Costs ("Motion for Attorneys' Fees"). Project Vote filed its response ("Project Vote's Response") on July 23, 2012, requesting that the court lift the stay of its Motion for Attorneys' Fees and award a total of $349,317.05 in fees and $657.00 in costs. Defendants filed a Joint Motion for Extension of Time, also on July 23, 2012, requesting additional time to respond to Project Vote's motion. The court

lifted its stay of the Motion for Attorney's Fees on July 26, 2012, and set new deadlines for Defendants' response and any reply by Project Vote. Defendants filed their Response in Opposition on
August 3, 2012, and Project Vote filed its Reply on August 10, 2012. The matter is now ripe for review.
I. Factual and Procedural History The relevant factual history is set forth in detail in the court's October 29, 2010, Opinion, and need not be repeated in full herein. See Project Vote/Voting for Am., Inc. v. Long, 752 F. Supp. 2d 697, 698-701 (E.D. Va. 2010) . In brief review, Project Vote and Advancement Project, a national civil and voting rights organization with which Project Vote works, sought to inspect and obtain copies
of
the completed voter registration applications of any individual who timely submitted an application at any time from January 1, 2008, through October 31, 2008, who was
not registered to vote in time for the November 4, 2008 general election, and also other documents, such as documents identifying the reasons the applications were rejected.
Compl. U 15 (internal quotation marks omitted). This request was
made pursuant to the National Voter Registration Act's ("NVRA") Public Disclosure Provision, 42 U.S.C. § 1973gg-6(i)(1) (hereinafter referred to as the "Public Disclosure Provision") . The Defendants did not permit Project Vote to inspect or copy these records (collectively referred to as the "Requested Records"),

purportedly because Virginia Code § 24.2-444 prohibited their disclosure, Compl. H 17, and the Public Disclosure Provision did not require that they be made available for inspection and photocopying. Id. H 22.
In the Complaint, Project Vote alleged that the NVRA's Public Disclosure Provision required that the Requested Records be available to the public for inspection because they are records "'concerning the implementation of programs or activities conducted for the purpose of ensuring the accuracy and currency of official
lists of eligible voters.'" Id^ H 29 (quoting 42 U.S.C. § 1973gg-6(i)(1)). Additionally, to the extent that the Virginia statute limited the availability of the Requested Records to the public for inspection and photocopying, Project Vote argued it was superseded by the NVRA, pursuant to the Supremacy Clause of the United
States Constitution. Therefore, Project Vote asked the court to: 1) declare that Defendants were in violation of the NVRA; 2) declare that the NVRA preempted Virginia Code § 24.2-444, and any other
Virginia law or regulation stating the same; 3) " [p] ermanently enjoin Defendants from refusing to permit access to any requesting party for copy and/or inspection of voter registration applications and related records, as sought by Project Vote in this matter"; and 4) award Project Vote the costs incurred in pursuing this action, as authorized by 42 U.S.C. § 1973gg-9(c). Id^ at 11.

The court issued its Opinion granting in part Project Vote's Motion for Summary Judgment on July 20, 2011. See Project Vote/Voting for Am., Inc. v. Long, 813 F. Supp. 2d 738 (E.D. Va. 2011) . The court found "that the NVRA's Public Disclosure Provision, 42 U.S.C. § 1973gg-6(i)(1), grants the plaintiff access to completed voter registration applications with the voters' SSNs redacted for inspection and photocopying." Id. at 743. The court issued a permanent injunction requiring disclosure of completed voter registration applications, but denied Project Vote's Motion for Summary Judgment insofar as Project Vote requested retrospective relief. Id. at 744-45. The court stayed its judgment on August 1, 2011, pending the outcome of Defendant's appeal of its decision. On June 15, 2012, the United States Court of Appeals for the Fourth Circuit affirmed this court's opinion. See Project Vote/Voting for Am., Inc. v. Long, 682 F.3d 331 (4th Cir. 2012) . The Fourth Circuit's mandate issued on July 9, 2012.
II. Legal Standards
Pursuant to 42 U.S.C. § 1973gg-9(c), " [i] n a civil action under this section the court may allow the prevailing party (other than the United States) reasonable attorney fees, including litigation expenses, and costs." Courts apply the same standards applicable to other federal civil rights fee shifting statutes when considering
an award under this section. See, e.g., Project Vote v. Blackwell,

No. I:06cvl628, 2009 U.S. Dist. LEXIS 34571, at *15 & n.7 (N.D. Ohio Mar. 31, 2009); Nat'l Coalition for Students with Disabilities v. Bush, 173 F. Supp. 2d 1272, 1276 (N.D. Fl. 2001). As such, a
prevailing plaintiff "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (quoting S. Rep. No. 94-1011, at 4 (1976)). The party requesting a fee bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates. Id. at 437.
The decision to award attorneys' fees, and the extent of those fees, "rests, of course, within the sound discretion of the trial judge." Guidry v. Clare, 442 F. Supp. 2d 282, 294 (E.D. Va. 2006) (Ellis, J.) (internal quotation omitted). In determining a reasonable attorneys' fee, the proper first step is to calculate the lodestar amount, which results from multiplying "the number of hours reasonably expended on the litigation times a reasonable hourly rate." Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 564 (1986) (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)) . When making this calculation, the court must exclude any hours that are "excessive, redundant, or otherwise unnecessary," as such hours are not reasonably expended on the litigation. Hensley, 461 U.S. at 434. This process requires the use of the same "billing

judgment" that guides a lawyer in private practice in billing his

client. Id.

A properly calculated lodestar figure is presumed to be a

reasonable fee. See Del. Valley Citizens' Council for Clean Air,

478 U.S. at 565. However, the court's discretion to award fees

necessarily "encompasses the ability to depart from the lodestar in

appropriate circumstances." Carroll v. Wolpoff & Abramson, 53 F.3d

626, 629 (4th Cir. 1995). The court may adjust a fee upward or

downward from the lodestar based on the twelve factors identified

in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19
(5th Cir. 1974),1 as well as other considerations. Hensley, 461 U.S.

at 434.

III. Analysis

Project Vote seeks an award of attorneys' fees in the amount

of $349,317.05 and costs and expenses in the amount of $657.00. See

Project Vote' s Resp. 4 . Defendants object to many aspects of Project

Vote's request, but their arguments can be summarized into three main

1 The twelve factors identified in Johnson are as follows: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client
or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the
attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12)
awards in similar cases. Johnson, 488 F.2d at 717-19.

contentions: (1) the hourly rates cited by Project Vote are not reasonable in the relevant legal community; (2) Project Vote's request contains unreasonable or duplicative fee requests; and (3) Project Vote's documentation is insufficient for the court to ascertain the number of hours reasonable expended on the litigation. See Resp. Opp'n 2-15. Defendants do not object to an award of fees in this case, nor do they contest whether Project Vote was the prevailing party in the litigation. As such, an award of attorneys' fees and expenses is appropriate in this case. The court will determine the amount of the award after examining each of Defendants' objections to Project Vote's proposed lodestar calculation in turn.
A. Reasonable Hourly Rate
In Project Vote's Response, as well as its August 3, 2011, Memorandum of Law in Support of Plaintiff's Motion to Recover Attorneys' Fees ("Memorandum in Support"), Project Vote argues that the Laffey Matrix, which reports prevailing market rates for attorneys in Washington, D.C., provides a guideline for reasonable attorneys' fees in this case. See Project Vote's Resp. 4; Mem. Supp. 9-11. In contrast, Defendants argue that Project Vote has not produced sufficient evidence in support of its fee request, and that a reasonable hourly rate should be calculated by looking at the local legal market, rather than the Laffey Matrix. See Resp. Opp'n 4-9.

The hourly rate requested by the prevailing party must be reasonable. See Rum Creek Coal Sales, Inc., v. Caperton, 31 F.3d 169, 175 (4th Cir. 1994) (citing Hensley, 461 U.S. at 433) . Courts ordinarily look to the "prevailing market rates" charged by lawyers of similar capabilities and experience "in the relevant community." Blum, 465 U.S. at 895-96. Prevailing parties bear the burden of demonstrating that their requests fall within the prevailing market rates, which can be accomplished through affidavits from disinterested counsel, evidence of awards in similar cases, or other specific evidence that allows the court to determine "actual rates which counsel can command in the market." Spell v. McDaniel, 824 F.2d 1380, 1402 (4th Cir. 1987). Affidavits from the prevailing party alone are not sufficient. See Plyler v. Evatt, 902 F.2d 273, 277 (4th Cir. 1990). The relevant community for determining the market rate is ordinarily the district where the case was tried. Rum Creek, 31 F.3d at 175. However, rates in other localities can be considered "[i]n circumstances where it is reasonable to retain attorneys from other communities." Id. Such circumstances are present "when the complexity and specialized nature of a case may mean that no attorney, with the required skills, is available locally, and the party choosing the attorney from elsewhere acted reasonably in making the choice." Id. at 179

(quoting National Wildlife Federation v. Hanson, 859 F.2d 313 (4th

Cir. 1988)).

Here, Project Vote submitted affidavits from its own attorneys,

as well as the Laffey Matrix, in support of its requested rates, which

are as follows:

Table 1: Project Vote's Requested Hourly Rates

Timekeeper
Hallward-Driemeier, Doug Ropes Sc Gray
Stewart, David Ropes Sc Gray
Malone, Ryan Ropes Sc Gray
Ripa, Augustine
Ropes & Gray Idilbi, Jason
Ropes & Gray Beauregard, Sheryl
Ropes Sc Gray Antzoulatos, Sophia
Ropes Sc Gray Sheffield, Yolanda
Project Vote Mellor, Brian
Project Vote

Position Partner

Hourly
Rate
6/1/09 5/31/10

Hourly
Rate
6/1/10 5/31/11

Hourly
Rate
6/1/11 5/31/12

$569.00 $589.00 $609.00

Counsel

$686.00 $709.00 $734.00

Associate $505.00 $522.00 $540.00

Associate $285.00 $294.00 $374.00

Associate $285.00 $294.00 $374.00

Paralegal $155.00 $161.00 $166.00

Paralegal $155.00 $161.00 $166.00

Attorney $349.00 $361.00 $374.00

Attorney $686.00 $709.00 $734.00

Project Vote Resp. Ex. E. The Laffey Matrix was established in

Laffey v. Nw. Airlines, Inc., 572 F. Supp. 354 (D.D.C. 1983), and

is frequently used by the United States District Court for the

District of Columbia, and other courts, as a "useful starting point"

for determining the prevailing hourly rates for attorneys in

Washington, D.C. See Grissom v. Mills Corp., 549 F.3d 313, 322 (4th Cir. 2008) . Notably, Project Vote did not submit any other affidavits concerning hourly rates in the Eastern District of Virginia. Project Vote argued it "acted reasonably by retaining counsel in Washington, D.C, whose office was located in close proximity to theirs, who had specific civil rights and constitutional law expertise, and who were willing to take on a case of first impression." Mem. Supp. 10. In its Reply, Project Vote made the additional argument, not found in its first two filings or the supporting declaration from its senior counsel, Brian Mellor, that Project Vote's relationship with counsel, Ropes & Gray, in other cases factored into its choice to use the firm. See Reply 3.
In turn, Defendants argue that the Laffey Matrix is irrelevant in assessing reasonable fees in this case, as the relevant legal market is the Eastern District of Virginia, not Washington, D.C. See Resp. Opp'n 6-9. Defendants argue that Project Vote has not made any showing that competent counsel could not be retained for this case from within the jurisdiction, or that choosing counsel from Ropes Sc Gray in Washington, D.C., constituted a reasonable decision. Further, in addition to the affidavits of Defendants' attorneys generally concerning their roles/participation in the case, see Resp. Opp'n Exs. 2 & 3, Defendants provide specific evidence, through an affidavit from trial attorney Robert L. Samuel, a partner based
10

in a local office of a large Virginia law firm with multiple offices

throughout the Eastern District of Virginia, and who himself has over

thirty (30) years of continuous practice in the courts of

southeastern Virginia, including practice in this District and the
Fourth Circuit Court of Appeals. See Resp. Opp'n Ex. 1 UH 2-4.2 Mr.

Samuel represents that the prevailing market rates within the

District are as follows:
Table 2: Defendants' Evidence of Reasonable Hourly Rates

Timekeeper Hallward-Driemeier,
Ropes & Gray Stewart, David
Ropes & Gray Malone, Ryan
Ropes & Gray
Ripa, Augustine
Ropes Sc Gray Idilbi, Jason
Ropes & Gray Sheffield, Yolanda
Project Vote Mellor, Brian
Project Vote

Doug

Position Partner Counsel

Experience 18 years
(Partner for 2) 34 years
(Partner for 23)

Hourly Rate $275-300 $350-400

Associate

10 years

$275-300

Associate

4 years

$180-$225

Associate

4 years

$180-$225

Attorney

7 years

$180-$225

Attorney

29 years

$350-400

See Resp. Opp'n Ex. 1 f 11.

2

Mr. Samuel's credentials are set forth in full in his affidavit.

See Resp. Opp'n Ex. 1 UK 2-6; infra note 3.

3 Mr. Samuel stated that his own hourly billing rate ranges between $285.00 and $395.00 an hour. Resp. Opp'n Ex. 1 H 8. Neither Mr. Samuel's billing rates or his credentials are challenged by Project Vote, nor is his opinion of the reasonable prevailing hourly market rates within the Eastern District of Virginia, as set forth in the table above. See id. Ex. 1 f 11. Instead, Project Vote's evidence and arguments are based on the grounds discussed supra at

11

In reviewing the evidence from the parties, the court agrees with Defendants that Project Vote's requested hourly rates do not represent the prevailing market rate in the relevant community of the Eastern District of Virginia. Project Vote has failed to set forth specific evidence that the hourly rates it seeks coincide with local prevailing market rates; indeed, Project Vote has submitted
no evidence at all on market rates within this District. Further,
Project Vote's evidence in the form of the Laffey Matrix is
insufficient as a reliable indicator of reasonable rates for a case
proceeding outside of Washington, D.C. Cf. Grissom, 54 9 F.3d at 323 ("Moreover, the Laffey Matrix is also insufficient to carry
Plaintiff's burden of proof [for a case in Reston, Virginia.]").4
The court' s determination thus turns on whether Project Vote' s choice to retain counsel from outside the District was "reasonable," and counsel should be awarded Washington, D.C, hourly rates.
Brian Mellor of Project Vote cited Ropes & Gray's proximity to its office, constitutional and civil rights expertise, and willingness to take a case of first impression as the three reasons
9-10. No countervailing affidavits from any attorneys, outside of those involved in this case, were submitted by Project Vote to support the reasonable prevailing hourly market rates in this District. See Project Vote Resp. Ex. E; supra at 9-10. 4 Reston, Virginia, is located in northern Virginia within the Alexandria Division of this court, which geographic area is contiguous with Washington, D.C
12

justifying the decision to retain counsel in Washington, D.C. Mem.
Supp. 10. However, Project Vote has made no showing that it was unable to find local counsel -- charging prevailing market rates --
competent and willing to handle this case. See Rum Creek, 31 F.3d at 179; National Wildlife, 859 F.2d at 317. Project Vote argues in its Reply that such proof is not required by Rum Creek and National
Wildlife. See Reply 3. Such an argument misses the point; Project Vote, in applying for a fee, has "the burden to make out the reasonableness of [its] hourly rate with specific evidence."
Newport News Shipbuilding & Dry Dock Co. v. Holiday, 591 F.3d 219,
230 n.12 (4th Cir. 2009) . The Fourth Circuit has confirmed that the
first step in assessing the reasonableness of retaining non-local counsel is asking "if extrajurisdictional counsel rendered services that were truly available in the visited market." See id. at 229.
Project Vote's idle speculation that the case "was likely to be politically distasteful for local counsel" does not satisfy its
burden. Reply 4.5 Regardless of the form of the proof, Project Vote
5 The court notes that the Eastern District of Virginia
encompasses a far broader range of localities other than the City of Norfolk and the surrounding localities within the Norfolk Division of the court. Further, Project Vote's comparison of this case to Rum Creek is misplaced. Counsel in Rum Creek, based in Richmond, Virginia, requested a "substantial portion of the fees" for appellate work occurring before the Fourth Circuit in Richmond. Rum Creek 31 F.3d at 179. Moreover, the political considerations and the many complex legal and constitutional issues in Rum Creek far exceeded what was at issue in this case. See id. at 172-74, 179 (discussing
13

has not produced any specific evidence from which the court can conclude that local counsel with the requisite skills did not exist within the Eastern District of Virginia, or if such counsel existed that they could not, or would not, have taken the case. Project Vote has thus failed to make a satisfactory showing that the choice to
retain counsel from outside the District was reasonable.
As such, the court finds that reasonable hourly rates for this case are those charged by comparable counsel within the Eastern
District of Virginia.6 Because Project Vote has not put forward its
own evidence of rates within the District, or challenged Defendants' evidence, the court adopts the following hourly rates, based on the
high-end7 of the ranges attested to by Mr. Samuel:
[CONTINUED ON PAGE 15]

the high profile nature of the suit, brought against a governor and the police "in the middle of a wellpublicized [sic] coal miners' strike") . The profile and proceedings of the case at bar simply do
not rise to the level of Rum Creek.

6

See infra note 7.

7 The court finds, based on the evidence presented and its own
over thirty (30) years of practice and judicial experience within the Eastern District of Virginia and the Fourth Circuit, that the ranges reflect market rates within the District, and additionally that selection of the high-end comports with the Johnson factors.
See discussion infra Part IV.

14

Table 3: Court's Finding of Reasonable Hourly Rates

Timekeeper Hallward-Driemeier, Doug
Ropes Sc Gray Stewart, David
Ropes Sc Gray Malone, Ryan
Ropes Sc Gray Ripa, Augustine
Ropes Sc Gray Idilbi, Jason
Ropes & Gray Beauregard, Sheryl
Ropes Sc Gray
Antzoulatos, Sophia
Ropes Sc Gray Sheffield, Yolanda
Project Vote Mellor, Brian
Project Vote

Position Partner Counsel Associate Associate Associate
Paralegal Paralegal Attorney Attorney

Reasonable Hourly Rate $300 $400 $300 $225 $225
$1008 $1009
$225 $400

B. Unreasonable and Duplicative Fee Requests Defendants next argue that Project Vote's fee request includes numerous entries that are "excessive, redundant, or otherwise unnecessary," and represent overstaffing and duplicative billing. See Resp. Opp'n 10 (quoting Hensley, 461 U.S. at 434) . Defendants argue that Project Vote's attorneys, who took the case pro bono, "seem[] to have used this case as a training exercise, without proper

Mr. Samuel did not provide an estimate of prevailing market rates for paralegals within the District, but the court finds that $100 an hour, which represents a comparable reduction from Project Vote's initial request and comports with the court's experience concerning local hourly rates, is appropriate.
See supra note 8
15

billing discretion as to the amount of hours expended." Id. at 12. Defendants note that only one attorney represented Defendants at
almost all proceedings. Id. at 11 n.2; id. Ex. 2 1 5; id. Ex. 4 U 5.
Defendants also submit as evidence Mr. Samuel's affidavit, in which he states "[t]here is a great deal of duplication and overstaffing"
in Project Vote's fee request. Resp. Opp'n Ex. 1. H 12. "The court must necessarily exclude any hours that are . . .
not reasonably expended on the litigation. Lilienthal v. City of Suffolk, 322 F. Supp. 2d 667, 670 (4th Cir. 2004). "[The Fourth Circuit has] been sensitive to the need to avoid use of multiple counsel for task where such use is not justified by the contributions of each attorney." Rum Creek, 31 F.3d at 180. As such, the court will "award fees for the time of one attorney when an issue does not require the attention of multiple lawyers." Cox v. Reliance Std. Life Ins. Co., 179 F. Supp. 2d 630, 636 (E.D. Va. 2001)
(Brinkema, J.). 1. Hearing on Motion to Dismiss
Chronologically, Defendant's first specific objection on this ground is to Project Vote's billing related to the July 30, 2010, hearing on Defendant's Motion to Dismiss, found in Phase 3 of Exhibit E to Project Vote's Motion for Attorney Fees. See Resp. Opp'n 11 n.2. Project Vote had three attorneys attend the motion
16

hearing in Norfolk, Virginia.10 The court agrees with Defendants'
contention that billing for attendance by three attorneys, including two similarly experienced associates, and the accompanying travel required from counsel's Washington, D.C office, is duplicative and does not represent the type of "billing judgment" of private practice. See Hensley, 461 U.S. at 434. The court expects that the presence of two attorneys would have been more than sufficient to
handle oral argument;11 as such, the court reduces Augustine Ripa's
time by 14.50 hours in Phase 3. 2. Rule 26(f) Telephonic Conference
Defendants next point to the time entries entered by three of Project Vote's attorneys, found in Phase 4 of Exhibit E to Project Vote's Motion for Attorney Fees, concerning participation in the
Federal Rule of Civil Procedure 26(f) Telephonic Conference.12 See

10 The entries related to travel to and from, and attendance at,

the motion hearing on July 30, 2010, are summed as follows: Augustine

Ripa billed 14 .5 hours; Jason Idilbi billed 14 hours; and Ryan Malone

billed 24 hours. See Mot. Attorneys' Fees Ex. E at 11-12. By

contrast, Defendants each had only one attorney attending all

hearings before this court. See Resp. Opp'n. Ex. 2 U 5; id. Ex. 3

14.

—

11 To be clear, with respect to this Part III.B.l, as well as with
respect to infra Part III.B.3, the court did not reduce any time spent preparing in advance for the relevant hearings, but only time expended on the days traveling and attending the hearings.

12 The entries related to attendance of the call on November 22, 2010, are summed as follows: Augustine Ripa billed 1.75 hours; Jason Idilbi billed .75 hours; and Ryan Malone billed 3 hours,

17

Resp. Opp'n 11. The court agrees with Defendants' contention that the participation of three attorneys for such a routine pre-trial matter is duplicative. As such, the court reduces Augustine Ripa's time by 1.75 hours and Jason Idilbi's time by 0.75 hours in Phase 4.
3. Rule 16(b) Scheduling Conference Defendant's next object to Project Vote's billing related to the Federal Rule of Civil Procedure 16(b) Scheduling Conference. See Resp. Opp'n 11. Project Vote had three attorneys attend the
Rule 16(b) Conference in Norfolk, Virginia.13 Once again, the court
agrees with Defendants' contention that the participation of three attorneys for such a routine, administrative pre-trial matter is duplicative, especially in light of the travel time required from counsel's Washington, D.C, office. As such, the court further reduces Augustine Ripa's time by 21.50 hours and Jason Idilbi's time by 20 hours in Phase 4.
including the call and other tasks. See Mot. Attorneys' Fees Ex. E at 14-15. By contrast, Defendants each had only one attorney participating in the Rule 26(f) Telephonic Conference. See Resp. Opp'n. Ex. 2 U 5; id. Ex. 3 1 4.
13 The entries related to travel to and from, and attendance at,
the Scheduling Conference on November 30, 2010, are summed as follows: Augustine Ripa billed 21.50 hours; Jason Idilbi billed 20 hours; and Ryan Malone billed 21 hours. See Mot. Attorneys' Fees Ex. E at 14-16. By contrast, Defendants each had only one attorney
participating in the Rule 16(b) Scheduling Conference. See Resp. Opp'n. Ex. 2 H 5; id. Ex. 3 U 4.
18

4. Fourth Circuit Oral Argument
Defendant's final specific objection14 on the grounds of
duplicative billing concerns Project Vote's billing for the
May 17, 2012, hearing and argument before the Fourth Circuit. See Resp. Opp'n 11 Sc n.2. Project Vote had two attorneys conduct
extensive preparation for oral arguments on appeal, separate and
apart from counsel's work on the appellate briefing.15 Defendants'
again cite Mr. Samuel' s affidavit as evidence of the unreasonableness
of this preparation. See Resp. Opp'n Ex. 1 f 12; see also id. H 3 (setting forth Mr. Samuel's appellate experience).16 Project Vote
in turn says such preparation by a junior associate is preferred, and that the time sought is already discounted as it "is not seeking
fees for hours billed by first and second year associates who worked
14 Defendants do briefly mention the court's hearing on the Motion
for Summary Judgment and Status Conference, held on June 10, 2011; however, the court does not find the attendance of two attorneys to be excessive. But see discussion infra Part III.B.5 (discussing travel billing).
15 Augustine Ripa billed entries between April 17, 2012, and
May 17, 2012, related to preparation for, and attendance at, oral argument before the Fourth Circuit, totaling 91.7 hours. See Project Vote's Resp. Ex. C at 3 . Moreover, Ms. Ripa's April 17, 2012, entry of 5 .0 hours related to preparation of the appeal also describes administrative, and not legal, preparatory work. Ryan Malone billed entries between May 5, 2012, and May 17, 2012, totaling 76.8 hours.
See id. at 4.
16 See supra note 2.
19

on the appeal."17 Reply 8. Unlike Defendants' other specific
objections, the court does not think extensive preparation by two attorneys for oral argument on appeal is categorically duplicative, nor does the court find that Mr. Malone's preparation was excessive in and of itself. However, the court agrees that the extent of preparation of Ms. Ripa, "who did not conduct oral argument," exceeds reasonableness and ordinary billing discretion. As such, the court reduces Augustine Ripa's time by 20 percent, or 18.3 hours, in Phase 6.18
5. Travel Billing Defendants' final objection concerning the unreasonableness of
Project Vote's fee request relates to attorney travel. Defendants argue that the decision to charge "full rate for hours spent traveling to and from Washington, D.C. . . . further demonstrates Plaintiff's counsel's 'apparent absence of billing judgment.'" Resp. Opp'n 12 (citing Burston v. Virginia, 595 F. Supp. 644, 651 (E.D. Va. 1984) (Merhige, J.)). Defendants cite several cases for the proposition that "plaintiffs should not recover the same fee for travel time as they recover for active legal work." Rosenberger v. Rector and
17 The court has not, however, been provided any records showing the tasks or amount of time Project Vote excluded from its fee
request.
18 Such a reduction credits Ms. Ripa with a comparable number of preparatory hours as Mr. Malone, who actually conducted oral argument
before the Fourth Circuit. 20

Visitors of Univ. of Va. , No. 91-0036-C, 1996 U.S. Dist. LEXIS 13799, at *20 (W.D. Va. Sept. 17, 1996) . Defendants argue that the appropriate hourly rate for attorney travel time is one fifth of an attorney' s regular billing rate, citing Sun Publ'g Co. v. Mecklenburg News, Inc. , 594 F. Supp. 1512, 1520 (E.D. Va. 1984) . Resp. Opp'n 13.
The court agrees with Defendants that counsel should not recover their full market rate for travel from their offices in Washington, D.C, to Norfolk and Richmond, and that failure to reduce this time indicates a lack of billing judgment. Cf. Sandbeck v. Reyes, No. I:llcv0761, 2012 U.S. Dist. LEXIS 54068, at *8 n.2 (E.D. Va. Apr. 17, 2012) (Anderson, J.) ("The reduction of the hourly rate for travel time from $350.00 to $100.00 is indicative of plaintiff's good faith efforts to apply for a reasonable amount of fees and costs.") . The court does not necessarily agree with Defendants that an 80 percent reduction from typical billing rates is always required; however, such an argument is academic in this case, as the court cannot determine with any accuracy the amount of time that Project Vote's counsel actually spent traveling. In the logs submitted by Project Vote, almost all travel entries are combined with other, legal tasks. See, e.g., Mot. Attorneys' Fees Ex. E at 11 (describing a 6.0 hour July 29, 2010, entry for Jason Idilbi as "[f]inalize preparation for departure to hearing, traveled to Norfolk; attended team strategy discussions to prepare for hearing") ; id. Ex. E at 12
21

(describing a 14.50 hour entry on the same day for Ryan Malone as

"[t]ravel from Washington to Norfolk, prepare for the hearing").

These generalized entries combining tasks are simply not sufficient,

proper documentation of travel time. As a result, the court will

consider the billed travel time when assessing the reduction the

court applies due to insufficient documentation. See discussion

infra Part III.C

C.

Insufficient Documentation of Fees

Defendants' remaining objections to Project Vote's fee request

focus on the documentation provided to the court. Defendants

characterize Project Vote's evidence as providing the court with "no way ... to accurately determine the reasonableness of the time

expended." Resp. Opp'n 15. Specifically, Defendants, and Mr.

Samuel in his affidavit, point to counsel's practice of "lumping"

multiple tasks into the same time entry. See id. at 14; id. Ex. 1 U 12. Project Vote, in turn, argues that "block billing" is not

prohibited by binding authority, and that the provided entries are

sufficiently specific for the court. Reply 8. While perhaps "block billing" is not prohibited, it simply does

not provide the court with a sufficient breakdown to meet Project Vote's burden to support its fee request in specific instances. "Inadequate documentation includes the practice of grouping, or 'lumping,' several tasks together under a single entry, without

22

specifying the amount of time spent on each particular task." Guidry, 442 F. Supp. 2d at 294. Courts may reduce a fee award when
"lumping" prevents an accurate assessment of the reasonableness of the fee request by either identifying hours that are not sufficiently documented or "by reducing the overall fee award by a fixed percentage or amount based on the trial court's familiarity with the case, its complexity, and the counsel involved." See id. Thus, the issue is not whether the court classifies Project Vote's timekeeping as demonstrating either "lumping" or "block billing," but whether
Project Vote has satisfied its burden of providing the court with
evidence from which the court can assess the reasonableness of the time requests.
In reviewing the time logs, the court did not find a single instance in which a timekeeper recorded multiple entries for a single day; instead, only the total amount of time for each day is reported, with no breakdown of how that time was spent among often as many as
four or five distinct tasks. See, e.g., Mot. Attorneys' Fees Ex. E at 15 (November 22, 2010, entry for Ryan Malone: "Attend 26(f)
conference; begin plan for summary judgment motion; research local rules and privacy issues; meet with team regarding strategy.") . The court's concern is heightened by the repeated practice of multiple
23

attorneys reporting time for the same task.19 The court's role is
not to labor to dissect every individual entry to hypothesize if the different tasks in the same entry could reasonably result in the
requested time. Instead, in light of the inexact documentation and the resulting inability of the court to properly assess the
reasonableness of the time requested, as well the concerns about the reasonableness of travel billing set forth supra in Part III.B.5,
the court will apply a fixed percentage reduction of 10 percent to
the fee award in this case. Such reduction will be taken after
accounting for the specific hourly reductions the court discussed
supra in Parts III.B.l through III.B.4.
IV. Johnson Factors
After arriving at the lodestar figure, the district court still must assess "whether that figure must be adjusted, upward or downward, on the basis of the circumstances in the case, including the Johnson factors." Guidry, 442 F. Supp. 2d at 294-95. The court
19 Compare Mot. Attorneys' Fees Ex. E at 3 (Jason Idilbi records "[d]rafted first draft of complaint" on December 9, 2009), with id. at 1 (Augustine Ripa records "draft and revise complaint" each day from December 7-10, 2009). Tasks within projects can obviously be divided, but due to the lack of specificity in billing, the court
is unable to assess whether these and similar entries are a result
of efficient division, or instead duplicative or otherwise unreasonable. The court notes this is just one example, and similar overlapping entries are found for drafting of the Response to Defendants' Motion to Dismiss, preparing for the hearing on the
Motion to Dismiss, and other tasks. See id. Ex. E.
24

will not belabor these factors20 in light of the lengthy analysis
above, which addressed, among others, the time and labor required to litigate the suit and the customary fee for such services. However, the remaining Johnson factors applicable in this case weigh in favor of a fully compensatory award to Project Vote. Courts repeatedly emphasize that the result of the litigation is one of the most important factors, see, e.g., Nigh v. Koons Buick Pontiac GMC, Inc., 478 F.3d 183, 190 (4th Cir. 2007 ) (considering "the extent of the relief obtained . . . particularly important when calculating reasonable fees"), and it is incontrovertible that Project Vote prevailed and obtained a permanent injunction in the underlying suit. Additionally, interpretation of the NRVA's requirement to disclose voter registration forms was an issue of first impression, which weighs in favor of full compensation. See Johnson, 488 F.2d at 718.
The court has taken into account these considerations and all of the
Johnson factors, and finds that the full fee requested by Project Vote, after applying the adjustments to the reasonable hourly billing rates and billing times the court detailed supra in Part III when calculating the lodestar figure, is appropriate in this case.
The full details of the court's calculations adjusting Project Vote' s requested attorneys' fee award are set out in Appendix A, which is attached hereto and made a part of this Opinion and Order. After
20 See supra note 1 (listing factors)
25

reducing the hourly rate, as detailed supra in Part III.A, and making the adjustments to the billable time, as detailed supra in Parts III.B and III.C, the court FINDS that a total attorneys' fee award of
$184,223.25 is reasonable in this case.

V.

Costs

Project Vote also requests $657.00 in costs. Litigation

expenses are recoverable under the statute, see 42 U.S.C.

§ 1973gg-9(c), and Defendants have noted no objection to Project

Vote's request. The court agrees with Project Vote that its request

is "very limited," and finds that $657.00 in costs is reasonable in

this case.

VI. Conclusion

For the foregoing reasons, the court GRANTS Project Vote's

Motion for Attorneys' Fees, and awards Project Vote $184,223.25 in attorneys' fees and $657.00 in costs. The Clerk SHALL forward a copy

of this Opinion and Order to counsel for the parties.

IT IS SO ORDERED.

/S/ Rebecca Beach Smith
Chief
United States District Judge-ft£r
REBECCA BEACH SMITH
CHIEF UNITED STATES DISTRICT JUDGE

Norfolk, Virginia
August J}9, 2012

26

Appendix A: Court's Calculation of Attorneys' Fees

Timekeeper
Hallward-Driemeier, Doug Ropes & Gray
Stewart, David Ropes & Gray
Malone, Ryan Ropes & Gray
Ripa, Augustine Ropes & Gray
Idilbi, Jason Ropes & Gray
B eauregard, Shery1 Ropes Sc Gray
Antzoulatos, Sophia Ropes Sc Gray
Sheffield, Yolanda Project Vote
Mellor, Brian Project Vote
Total:

Total
Reported
Hours 17.25 0.50
253.00 413.25 149.25
52.50 21.75 18.80 6.20 932.50

Duplicative Adjusted

Hours

Hours

0 0 0
(56.05) (20.75)
0 0 0 0
(76.80)

17.25 0.50 253.00 357.20 128.50 52.50 21.75 18.80 6.20 855.7

Total Hours After 10% Reduction

Hourly
Rate

15.525

$300

0.45

$400

227.7

$300

321.48

$225

115.65

$225

47.25

$100

19.575

$100

16.92

$225

5.58 770.13

$400

Total Fee Award
$4,657.50 $180.00
$68,310.00 $72,333.00 $26,021.25 $4,725.00 $1,957.50 $3,807.00 $2,232.00 $184,223.25

A-l

 
 Case 2:10-cv-00075-RBS-DEM Document 81 Filed 06/15/12 Page 1 of 17 PageID# 726

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

PROJECT VOTE / V OTING FOR



AMERICA, INCORPORATED,

Plaintiff-Appellee,

v.

ELISA LONG, in her official capacity as General Registrar of Norfolk, Virginia; D ONALD PALMER, in his official capacity as Secretary, State Board of Elections,

Defendants-Appellants.


UNITED STATES OF AMERICA; THE

REPORTERS COMMITTEE FOR

FREEDOM OF THE PRESS; AMERICAN

SOCIETY OF NEWS EDITORS; THE

ASSOCIATED PRESS; ASSOCIATION OF

CAPITOL REPORTERS AND EDITORS;

ATLANTIC MEDIA INC.; CITIZEN

MEDIA LAW PROJECT; LIN MEDIA;

THE NATIONAL PRESS CLUB;

NATIONAL PRESS PHOTOGRAPHERS

ASSOCIATION; NEWSPAPER

ASSOCIATION OF AMERICA;



No. 11-1809

Case 2:10-cv-00075-RBS-DEM Document 81 Filed 06/15/12 Page 2 of 17 PageID# 727

2

PROJECT VOTE v. L ONG

NORTH JERSEY MEDIA GROUP,



INCORPORATED; RADIO TELEVISION

DIGITAL NEWS ASSOCIATION; THE

SEATTLE TIMES COMPANY;

SOCIETY OF PROFESSIONAL



JOURNALISTS; STUDENT PRESS LAW

CENTER; USA T ODAY; VIRGINIA

COALITION FOR OPEN GOVERNMENT,

 Amici Supporting Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk.
Rebecca Beach Smith, District Judge. (2:10-cv-00075-RBS-DEM)
Argued: May 17, 2012
Decided: June 15, 2012
Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.

Affirmed and remanded by published opinion. Judge Wilkinson wrote the opinion, in which Judge Diaz and Judge Floyd joined.
COUNSEL
ARGUED: Earle Duncan Getchell, Jr., OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellants. Ryan Morland Malone, ROPES & GRAY, LLP, Washington, D.C., for Appellee. Erin H. Flynn, UNITED STATES DEPARTMENT OF JUSTICE, Washing-

Case 2:10-cv-00075-RBS-DEM Document 81 Filed 06/15/12 Page 3 of 17 PageID# 728

PROJECT VOTE v. L ONG

3

ton, D.C., for Amici Supporting Appellee. ON BRIEF: Kenneth T. Cuccinelli, II, Attorney General of Virginia, Charles E. James, Jr., Chief Deputy Attorney General, Wesley G. Russell, Jr., Deputy Attorney General, Stephen M. Hall, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia; Jeff W. Rosen, Lisa Ehrich, PENDER & COWARD, PC, Virginia Beach, Virginia, for Appellants. Douglas HallwardDriemeier, Augustine M. Ripa, ROPES & GRAY, LLP, Washington, D.C., for Appellee. Thomas E. Perez, Assistant Attorney General, Diana K. Flynn, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for the United States, Amicus Supporting Appellee. Lucy A. Dalglish, Mark R. Caramanica, You-Jin J. Han, THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, Arlington, Virginia; Kevin M. Goldberg, FLETCHER, HEALD & HILDRETH, PLC, Arlington, Virginia, for American Society of News Editors and Association of Capitol Reporters and Editors; Karen Kaiser, Associate General Counsel, THE ASSOCIATED PRESS, New York, New York; Bruce L. Gottlieb, General Counsel, ATLANTIC MEDIA, INC., Washington, D.C.; Jeffrey P. Hermes, CITIZEN MEDIA LAW PROJECT, Berkman Center For Internet & Society, Cambridge, Massachusetts; Joshua N. Pila, Regulatory Counsel, LIN MEDIA, Providence, Rhode Island; Charles D. Tobin, HOLLAND & KNIGHT LLP, Washington, D.C., for the National Press Club; Mickey H. Osterreicher, East Amherst, New York, for the National Press Photographers Association; Rene P. Milam, Vice President/General Counsel, NEWSPAPER ASSOCIATION OF AMERICA, Arlington, Virginia; Jennifer Borg, General Counsel, NORTH JERSEY MEDIA GROUP INC., Hackensack, New Jersey; Kathleen A. Kirby, WILEY REIN LLP, Washington, D.C., for the Radio Television Digital News Association; Bruce E. H. Johnson, DAVIS WRIGHT TREMAINE LLP, Seattle, Washington, for The Seattle Times Company; Bruce W. Sanford, Bruce D. Brown, Laurie A. Babinski, BAKER

Case 2:10-cv-00075-RBS-DEM Document 81 Filed 06/15/12 Page 4 of 17 PageID# 729

4

PROJECT VOTE v. L ONG

HOSTETLER LLP, Washington, D.C., for the Society of Professional Journalists; Frank D. LoMonte, STUDENT PRESS LAW CENTER, Arlington, Virginia; Barbara W. Wall, Vice President, Senior Associate General Counsel, GANNETT CO., INC., McLean, Virginia, for USA Today; Megan Rhyne, VIRGINIA COALITION FOR OPEN GOVERNMENT, Williamsburg, Virginia, Amici Supporting Appellee.

OPINION
WILKINSON, Circuit Judge:
The question here is whether Section 8(i)(1) of the National Voter Registration Act ("NVRA"), which requires public disclosure of "all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters," 42 U.S.C. § 1973gg-6(i)(1), applies to completed voter registration applications. The district court concluded that Section 8(i)(1) does apply to such applications and held that defendants—Virginia election officials—had violated the NVRA by refusing to disclose the completed applications with voters’ Social Security numbers redacted. Because the district court correctly interpreted Section 8(i)(1), we now affirm the judgment.
I.
Plaintiff Project Vote/Voting for America, Inc. ("Project Vote") is a nonprofit organization seeking to increase voter registration among young, low-income, and minority voters. This suit arose after Project Vote learned that students at Norfolk State University, a historically African-American college, experienced problems in registering to vote in the November 2008 primary and general elections in Virginia. In particular, Project Vote worried that the students’ registration applica-

Case 2:10-cv-00075-RBS-DEM Document 81 Filed 06/15/12 Page 5 of 17 PageID# 730

PROJECT VOTE v. L ONG

5

tions had been erroneously rejected by the Norfolk General Registrar, defendant Elisa Long, who is responsible for processing voter registration applications.

On May 11, 2009, a Project Vote affiliate—Advancement Project—requested that Registrar Long "make available for inspection and copying the completed voter registration applications of any individual who timely submitted an application at any time from January 1, 2008, through October 31, 2008, who was not registered to vote in time for the November 4, 2008 general election," as well as "documents identifying the reasons the applications were rejected." The request was made pursuant to NVRA Section 8(i)(1), which provides:

Each State shall maintain for at least 2 years and shall make available for public inspection and, where available, photocopying at a reasonable cost, all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters, except to the extent that such records relate to a declination to register to vote or to the identity of a voter registration agency through which any particular voter is registered.

42 U.S.C. § 1973gg-6(i)(1). Registrar Long responded to the request on May 13, 2009, indicating that she would not allow inspection or copying of the requested materials. Martha Brissette, an attorney and policy analyst with the Virginia State Board of Elections ("VSBE"), then emailed Advancement Project in support of Long’s refusal.

On May 15, 2009, representatives from Project Vote and Advancement Project visited Registrar Long’s office in person and repeated their request, which was again refused. Accordingly, the organizations wrote to the Secretary of the VSBE, giving notice that Registrar Long was allegedly violating NVRA Section 8(i)(1) and requesting remedial measures.

Case 2:10-cv-00075-RBS-DEM Document 81 Filed 06/15/12 Page 6 of 17 PageID# 731

6

PROJECT VOTE v. L ONG

On September 25, 2009, VSBE forwarded to Project Vote and Advancement Project an informal opinion of the Attorney General of Virginia. The opinion concluded that "the completed voter registration application of any individual is not a part of the record of the implementation of programs and activities conducted for the purposes of ensuring the accuracy and currency of official lists of eligible voters covered by [the Public Disclosure Provision]." To date, defendants have not disclosed the requested records.

Project Vote filed a complaint against Registrar Long and the Secretary of the VSBE on February 16, 2010, alleging violations of Section 8(i)(1) and asking the court to require disclosure of the requested materials. Defendants moved to dismiss the complaint, asserting that Project Vote lacked standing to sue under the NVRA and that Section 8(i)(1) does not mandate public access to completed voter registration applications. The district court denied defendants’ motion on October 29, 2010. The court concluded that plaintiff had standing and that "the common and ordinary meaning of the terms of [Section 8(i)(1)] encompass voter registration applications, as these records concern ‘the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters.’" Project Vote/Voting for America, Inc. v. Long , 752 F. Supp. 2d 697, 708 (E.D. Va. 2010) (quoting 42 U.S.C. § 1973gg6(i)(1)).

Project Vote then moved for summary judgment. Defendants opposed the motion, reasserting their original arguments and also claiming that the district court’s interpretation of the NVRA was incompatible with two other federal statutes, the Help America Vote Act ("HAVA"), 42 U.S.C. § 15301 et seq., and the Military and Overseas Voter Empowerment ("MOVE") Act, 42 U.S.C. § 1973ff et seq.On July 20, 2011, the district court entered final judgment in favor of Project Vote. Rejecting defendants’ arguments based on HAVA and the MOVE Act, the court concluded that NVRA Section

Case 2:10-cv-00075-RBS-DEM Document 81 Filed 06/15/12 Page 7 of 17 PageID# 732

PROJECT VOTE v. L ONG

7

8(i)(1) "grants the plaintiff access to completed voter registra-

tion applications with the voters’ [Social Security numbers]

redacted for inspection and photocopying."

Project

Vote/Voting for America, Inc. v. Long , 813 F. Supp. 2d 738,

743 (E.D. Va. 2011). The court subsequently stayed its judg-

ment pending this appeal. See J.A. 449-52.

II.

The NVRA reflects the view of Congress that the right to vote "is a fundamental right," that government has a duty to "promote the exercise of that right," and that discriminatory and unfair registration laws can have a "damaging effect on voter participation" and "disproportionately harm voter participation by various groups, including racial minorities." 42 U.S.C. § 1973gg(a). Congress enacted the NVRA in order to "increase the number of eligible citizens who register to vote" in federal elections, "enhance[ ] the participation of eligible citizens as voters," "protect the integrity of the electoral process," and "ensure that accurate and current voter registration rolls are maintained." Id. § 1973gg(b).

The NVRA directs states to establish at least three methods of voter registration for federal elections: "(1) by application made simultaneously with an application for a motor vehicle driver’s license," "(2) by mail application" using a federally prescribed form, and "(3) by application in person" at designated voter registration agencies. Id. § 1973gg-2(a). It further requires that states conduct a general program to remove ineligible voters from official voter lists without engaging in improper voter removal. Id. § 1973gg-6(a)(3)-(4).

Finally, as explained above, Section 8(i)(1) of the NVRA mandates public disclosure of voter registration activities. Id. § 1973gg-6(i)(1). It generally requires states to "make available for public inspection and, where available, photocopying at a reasonable cost, all records concerning the implementation of programs and activities conducted for the purpose of

Case 2:10-cv-00075-RBS-DEM Document 81 Filed 06/15/12 Page 8 of 17 PageID# 733

8

PROJECT VOTE v. L ONG

ensuring the accuracy and currency of official lists of eligible voters." Id. This language embodies Congress’s conviction that Americans who are eligible under law to vote have every right to exercise their franchise, a right that must not be sacrificed to administrative chicanery, oversights, or inefficiencies. Under the district court’s interpretation, this provision mandates disclosure of the records requested by Project Vote.

III.

A.

We begin by considering the Commonwealth’s argument that the text of Section 8(i)(1) does not require public disclosure of completed voter registration applications. This issue of statutory interpretation is one that we review de novo. United States v. Ide, 624 F.3d 666, 668 (4th Cir. 2010). The starting point for any issue of statutory interpretation is of course the language of the statute itself. United States v. Bly , 510 F.3d 453, 460 (4th Cir. 2007). "[W]hen the words of a statute are unambiguous, . . . this first canon is also the last [and] judicial inquiry is complete." Willenbring v. United States , 559 F.3d 225, 235 (4th Cir. 2009) (internal quotation marks omitted).

Appellants assert that "[t]he plain and ordinary meaning of [Section 8(i)(1)] does not encompass voter applications, much less the rejected applications initially sought." Appellants’ Br. at 10. Instead, they claim, the "‘programs and activities’ referred to in Section 8(i)(1) of the NVRA are programs and activities related to the purging of voters from the list of registered voters." Id. at 11.

Contrary to appellants’ insistence, the plain language of Section 8(i)(1) does not allow us to treat its disclosure requirement as limited to voter removal records. As the district court concluded, completed voter registration applications are clearly "records concerning the implementation of programs and activities conducted for the purpose of ensuring

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PROJECT VOTE v. L ONG

9

the accuracy and currency of official lists of eligible voters." 42 U.S.C. § 1973gg-6(i)(1).

First, the process of reviewing voter registration applications is a "program" and "activity." Under Virginia law, election officials must examine completed voter registration applications and register applicants that possess the necessary qualifications. See Va. Code § 24.2-417. This process of review is a "program" because it is carried out in the service of a specified end—maintenance of voter rolls—and it is an "activity" because it is a particular task and deed of Virginia election employees.

Moreover, the "program" and "activity" of evaluating voter

registration applications is plainly "conducted for the purpose

of ensuring the accuracy and currency of official lists of eligi-

ble voters." 42 U.S.C. § 1973gg-6(i)(1). It is unclear what

other purpose it would serve. As the district court reasoned,

the process of reviewing voter registration applications keeps

official voter lists both "accurate"—free from error—and

"current"—most recent. See Project Vote, 752 F. Supp. 2d at

706. Indeed, voter lists are not "accurate" or "current" if eligi-

ble voters have been improperly denied registration or if ineli-

gible persons have been added to the rolls. Id. By registering

eligible applicants and rejecting ineligible applicants, state

officials "ensure that the state is keeping a ‘most recent’ and

errorless account of which persons are qualified or entitled to

vote within the state." Id. Accordingly, the process of assess-

ing voter registration applications is a "program[

] and

activit[y] conducted for the purpose of ensuring the accuracy

and currency of official lists of eligible voters." 42 U.S.C.

§ 1973gg-6(i)(1).

Furthermore, the registration applications requested by Project Vote are clearly "records concerning the implementation of" this "program[ ] and activit[y]." Id. The requested applications are relevant to carrying out voter registration activities because they are "the means by which an individual

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10

PROJECT VOTE v. L ONG

provides the information necessary for the Commonwealth to determine his eligibility to vote." Project Vote, 752 F. Supp. 2d at 707. Without verification of an applicant’s citizenship, age, and other necessary information provided by registration applications, state officials would be unable to determine whether that applicant meets the statutory requirements for inclusion in official voting lists. Thus, completed applications not only "concern[ ] the implementation of" the voter registration process, but are also integral to its execution.

Finally, "the fact that [Section 8(i)(1)] very clearly requires that ‘all records’ be disclosed brings voter registration applications within its reach." Id. at 707-08 (emphasis added). As this court has recognized, "the use of the word ‘all’ [as a modifier] suggests an expansive meaning because ‘all’ is a term of great breadth." Nat’l Coal. for Students with Disabilities Educ. & Legal Def. Fund v. Allen, 152 F.3d 283, 290 (4th Cir. 1998). Given that the phrase "all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters" unmistakably encompasses completed voter registration applications, such applications fall within Section 8(i)(1)’s general disclosure mandate.

B.

Although Section 8(i)(1) generally requires disclosure of applicable records, it creates exceptions "to the extent that such records relate [(1)] to a declination to register to vote or [(2)] to the identity of a voter registration agency through which any particular voter is registered." 42 U.S.C. § 1973gg6(i)(1). The completed voter registration applications at issue here do not fall within either of these two exceptions. First, such applications represent attempts to become a registered voter, not "declination[s] to register to vote." Moreover, Virginia’s voter registration application form does not contain any information related to "the identity of a voter registration agency through which any particular voter is registered." See

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PROJECT VOTE v. L ONG

11

J.A. 66. Because the requested applications do not fall within either of these two exceptions—and because they are covered by Section 8(i)(1)’s general mandate—they must be made "available for public inspection and . . . photocopying." 42 U.S.C. § 1973gg-6(i)(1).

C.

Appellants next argue that NVRA Section 8(i)(2)—which immediately follows Section 8(i)(1)—limits the records subject to public disclosure. Section 8(i)(2) provides:

The records maintained pursuant to [Section 8(i)(1)] shall include lists of the names and addresses of all persons to whom notices described in subsection (d)(2) of this section are sent, and information concerning whether or not each such person has responded to the notice as of the date that inspection of the records is made.

Id. § 1973gg-6(i)(2) (emphasis added). According to appellants, the term "shall include" in Section 8(i)(2) "acts as a limitation, not an enlargement." Appellants’ Br. at 16. Appellants assert that "[t]he records specifically identified by Congress in Section 8(i)(2) are those which should be disclosed under Section 8(i)(1)," and that "[b]ecause voter registration applications are not such records, they are not subject to [public disclosure]." Id.

Appellants’ interpretation, under which only the documents

described in Section 8(i)(2) must be disclosed, is incorrect for

several reasons. First, the statute clearly states that "

all

records" falling under Section 8(i)(1) must be publicly dis-

closed, not just those explicitly listed in Section 8(i)(2). 42

U.S.C. § 1973gg-6(i)(1) (emphasis added). Moreover, as the

district court recognized at the motion to dismiss hearing, the

term "shall include" sets "a floor, not a ceiling." J.A. 223.

Courts have repeatedly indicated that "shall include" is not

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PROJECT VOTE v. L ONG

equivalent to "limited to." See, e.g., Nat’l Fed’n of the Blind v. FTC, 420 F.3d 331, 338 (4th Cir. 2005) (stating that the language "shall include" is "not exhaustive," and merely indicates that the listed items, "among others," are covered by the relevant provision); see also Samantar v. Yousuf , 130 S. Ct. 2278, 2287 (2010); P.C. Pfeiffer Co. v. Ford , 444 U.S. 69, 77 n.7 (1979). Because Section 8(i)(2) merely describes a specific set of records that must be maintained—and not an exclusive list—it does not shield completed voter registration applications from Section 8(i)(1)’s public disclosure mandate.

D.

In sum, the NVRA’s disclosure requirement is not limited to voter removal records. The NVRA, including Section 8(i)(1), concerns voter registration, not simply voter removal. Notably, the statute is entitled the "National Voter Registration Act," 42 U.S.C. § 1973gg note (emphasis added), and is codified under a subchapter designated "National Voter Registration," id. § 1973gg et seq. (emphasis added). Moreover, Section 8(i)(1) is located in a section titled "Requirements with respect to administration of voter registration," id. § 1973gg-6 (emphasis added), and a subsection titled "Public disclosure of voter registration activities," id. § 1973-gg(6)(i) (emphasis added). These statutory labels reinforce the conclusion that Section 8(i)(1) governs voter registration records. See INS v. Nat’l Ctr. for Immigrants’ Rights, Inc. , 502 U.S. 183, 189 (1991) (noting that "the title of a statute or section can aid in" textual interpretation). Because the NVRA requires disclosure of all materials described in Section 8(i)(1), including voter registration records, defendants must permit inspection of the completed applications, as instructed by the district court.

IV.

Appellants further contend that the district court’s interpretation of the NVRA causes the statute to conflict with HAVA

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PROJECT VOTE v. L ONG

13

and the MOVE Act. Given that the requested registration applications unquestionably fall within the plain language of Section 8(i)(1), we need not look outside that plain language in construing the statute. Where "the language is plain and ‘the statutory scheme is coherent and consistent,’ there is no need to inquire further." In re JKJ Chevrolet, Inc. , 26 F.3d 481, 483 (4th Cir. 1994). Accordingly, we need not consider the impact of HAVA and the MOVE Act on the language of Section 8(i)(1), which clearly requires public disclosure of completed voter registration applications.

Appellants insist, however, that all three statutes address related electoral proceedings and that to interpret them at cross-purposes would lead to real confusion. We are not persuaded by this view. Even considering these statutes, both are entirely consistent with the district court’s interpretation of Section 8(i)(1). The Help America Vote Act requires, among other things, that states establish a free access system through which provisional voters can determine whether their votes were counted, and if not, why not. 42 U.S.C. § 15482(a)(5)(B). The provision cited by appellants, HAVA Section 302(a), provides in relevant part: "The appropriate State or local official shall establish and maintain reasonable procedures necessary to protect the security, confidentiality, and integrity of personal information collected, stored, or otherwise used by the free access system . . . ." Id. § 15482(a). It also limits "[a]ccess to information about an individual provisional ballot . . . to the individual who cast the ballot." Id. According to appellants, these privacy provisions "would make no sense if Congress intended the same type of personal information to be publicly available under Section 8(i)(1) of the NVRA from voter applications." Appellants’ Br. at 21.

Appellants’ argument fails to recognize that HAVA’s security provisions only concern the "personal information collected, stored, or otherwise used by the free access system," 42 U.S.C. § 15482(a), which allows the voter—and only the voter—to ascertain whether his ballot was counted.

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PROJECT VOTE v. L ONG

HAVA therefore protects the right to the secret ballot, and does not pertain to the voter registration procedures governed by the NVRA. In addition, HAVA explicitly states that "nothing in this [Act] may be construed . . . to supersede, restrict, or limit the application of . . . The National Voter Registration Act." Id. § 15545(a). Thus, by its own terms, HAVA cannot restrict or limit the application of the NVRA’s public disclosure requirement.

Appellants next point to the Military and Overseas Voter Empowerment Act as evidence that Congress did not want Section 8(i)(1) to apply to voter registration applications. The MOVE Act requires states to establish procedures "for absent uniformed services voters and overseas voters to request by mail and electronically voter registration applications and absentee ballot applications" and for states to send such applications by mail and electronically. Id. § 1973ff-1(a)(6). The Act further provides that

[t]o the extent practicable, [these procedures] shall ensure that the privacy of the identity and other personal data of an absent uniformed services voter or overseas voter who requests or is sent a voter registration application or absentee ballot application . . . is protected throughout the process of making such request or being sent such application.

Id. § 1973ff-1(e)(6)(B). According to appellants, "it would make no sense to require these privacy protections if Congress understood and expected that the registration applications at the end of ‘the process’ would be made publicly available under Section 8(i)(1) of the NVRA." Appellants’ Br. at 21.

Appellants’ argument ignores the plain language of the MOVE Act, which expressly limits the application of its security and privacy provisions to personal data conveyed during the voter form request process. The provision cited by

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PROJECT VOTE v. L ONG

15

appellants—42 U.S.C. § 1973ff-1(e)(6)(B)—ensures that the personal information of an overseas voter "who requests or is sent a voter registration application or absentee ballot application . . . is protected throughout the process of making such request or being sent such application " (emphasis added). Likewise, § 1973ff-1(e)(6)(A) requires states to "ensure that the procedures established under subsection (a)(6) protect the security and integrity of the voter registration and absentee ballot application request processes." 42 U.S.C. § 1973ff1(e)(6)(A) (emphasis added). Because these privacy provisions protect information transmitted during the process of requesting—not submitting—a registration application, the MOVE Act does not conflict with the NVRA’s requirement that completed applications be disclosed.

V.

Finally, appellants’ proffered privacy concerns do not necessitate reversal of the district court’s decision. In support of their argument to the contrary, appellants point to Greidinger v. Davis , 988 F.2d 1344 (4th Cir. 1993), in which we held that a statute that conditions voting on public release of a voter’s Social Security number "creates an intolerable burden on that right as protected by the First and Fourteenth Amendments." Id. at 1355. Greidinger is inapposite here, however, because the district court did not require public disclosure of Social Security numbers, which the court recognized "are uniquely sensitive and vulnerable to abuse." Project Vote, 752 F. Supp. 2d at 711-12. The district court expressly concluded that Section 8(i)(1) "grants the plaintiff access to completed voter registration applications with the voters’ SSNs redacted for inspection and photocopying." Project Vote, 813 F. Supp. 2d at 743 (emphasis added). Plaintiff has never requested completed applications with unredacted Social Security numbers and does not object to the district court’s redaction requirement. Accordingly, there is no danger that this uniquely sensitive information will be compromised by Section 8(i)(1)’s public disclosure requirement.

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PROJECT VOTE v. L ONG

Appellants next argue that "information other than applicants’ SSNs, such as responses to requests regarding criminal history, mental incompetency, and even home addresses, phone numbers, and birth dates implicate real privacy interests." Appellants’ Reply Br. at 20. Because the Virginia voter registration application form requires this personal information, appellants contend, "it must be reasonably supposed that conditioning voting on the public release of such information will suppress registration contrary to congressional intent." Appellants’ Br. at 22.

We do not think appellants’ privacy concerns unfounded. By requiring public disclosure of personal information,* Section 8(i)(1) may conceivably inhibit voter registration in some instances. However, this potential shortcoming must be balanced against the many benefits of public disclosure. It is selfevident that disclosure will assist the identification of both error and fraud in the preparation and maintenance of voter rolls. State officials labor under a duty of accountability to the public in ensuring that voter lists include eligible voters and exclude ineligible ones in the most accurate manner possible. Without such transparency, public confidence in the essential workings of democracy will suffer.

It is not the province of this court, however, to strike the proper balance between transparency and voter privacy. That is a policy question properly decided by the legislature, not the courts, and Congress has already answered the question by enacting NVRA Section 8(i)(1), which plainly requires disclo-

*It is not clear, however, that applicants need to disclose information regarding felony convictions and rulings on mental incapacity, as 42 U.S.C. § 1973gg-4(a)(1) requires states to accept and use the federal voter registration form, which does not ask for such information, see U.S. Election Assistance Commission, Register To Vote in Your State by Using This Postcard Form and Guide (2006). Moreover, appellants’ position with respect to prior felony convictions and mental incapacity appears to discount the extent to which such information may already be a matter of public record.

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17

sure of completed voter registration applications. Public disclosure promotes transparency in the voting process, and courts should be loath to reject a legislative effort so germane to the integrity of federal elections.

VI.

In the end, appellants ask us to revisit issues already resolved by the Congress. It may or may not be that Section 8(i)(1) is the most effective means of promoting the NVRA’s stated purposes. The public disclosure provision may or may not "increase the number of eligible citizens who register to vote" in federal elections and "enhance[ ] the participation of eligible citizens as voters." 42 U.S.C. § 1973gg(b). But this debate belongs in the legislative arena, not the courts. We also decline to address every particular question that may arise with respect to the implementation of Section 8(i)(1). That is best left to the trial court upon remand. We do hold, however, that completed voter registration applications are subject to disclosure under the NVRA, as they are unquestionably "records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters." Id. § 1973gg6(i)(1). Where, as here, "the statute’s language is plain, the sole function of the courts . . . is to enforce it according to its terms." Lamie v. U.S. Tr. , 540 U.S. 526, 534 (2004) (internal quotation marks omitted). Accordingly, we affirm the judgment and remand for further proceedings consistent with this decision.

AFFIRMED AND REMANDED

 
 Case 2:10-cv-00075-RBS-DEM Document 82 Filed 06/15/12 Page 1 of 2 PageID# 743
FILED: June 15, 2012
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
___________________
No. 11-1809 (2:10-cv-00075-RBS-DEM)
___________________
PROJECT VOTE/VOTING FOR AMERICA, INCORPORATED
Plaintiff - Appellee
v.
ELISA LONG, in her official capacity as General Registrar of Norfolk, Virginia; DONALD PALMER, in his official capacity as Secretary, State Board of Elections
Defendants - Appellants
------------------------------
UNITED STATES OF AMERICA; THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS; AMERICAN SOCIETY OF NEWS EDITORS; THE ASSOCIATED PRESS; ASSOCIATION OF CAPITOL REPORTERS AND EDITORS; ATLANTIC MEDIA INC.; CITIZEN MEDIA LAW PROJECT; LIN MEDIA; THE NATIONAL PRESS CLUB; NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION; NEWSPAPER ASSOCIATION OF AMERICA; NORTH JERSEY MEDIA GROUP, INCORPORATED; RADIO TELEVISION DIGITAL NEWS ASSOCIATION; THE SEATTLE TIMES COMPANY; SOCIETY OF PROFESSIONAL JOURNALISTS; STUDENT PRESS LAW CENTER; USA TODAY; VIRGINIA COALITION FOR OPEN GOVERNMENT
Amici Supporting Appellee

Case 2:10-cv-00075-RBS-DEM Document 82 Filed 06/15/12 Page 2 of 2 PageID# 744
___________________ J U D G M E N T
___________________ In accordance with the decision of this court, the judgment of the district court is affirmed. This case is remanded to the district court for further proceedings consistent with the court's decision. This judgment shall take effect upon issuance of this court's mandate in accordance with Fed. R. App. P. 41.
/s/ PATRICIA S. CONNOR, CLERK

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA
Norfolk Division

FILED
AUG 2 2 2012

PROJECT VOTE/VOTING FOR AMERICA, INC.,
Plaintiff,
v.
ELISA LONG, in her Official Capacity as General Registrar of Norfolk, Virginia,
and
DONALD PALMER, in his Official Capacity as Secretary, State Board of Elections,
Defendants.

CLERK. U.S. DISTRICT COURT
NORFOLK. VA
CIVIL No. 2:10cv75

MEMORANDUM FINAL ORDER
The court lifted its stay of this case on July 20, 2012, which stay had been issued by Order of August 1, 2011. The court then directed the parties to "file responses concerning any subsequent action necessary by this court in light of the Fourth Circuit's decision." Order 1, ECF No. 86. Defendants Donald Palmer, in his official capacity as Secretary of the State Board of Elections, and Elisa Long, in her official capacity as General Registrar of Norfolk, Virginia (collectively "Defendants"), filed a Motion for Review of Issues on Remand ("Motion for Review") on July 27, 2012. In their Motion for Review, Defendants request that the court permit redaction of additional personal information, beyond Social Security numbers ("SSNs"), from the completed voter registration forms provided for

public disclosure, as well as limit the prospective nature of the
relief to commence on "the date of this Court's final order." Mot.
Review 1M 5-11. Project Vote/Voting for America, Inc. ("Project Vote") filed its Response to Defendants' Motion for Review of Issues
on Remand ("Project Vote's Response") on August 7, 2012. Defendants did not reply, and the time to file such reply has expired. The matter is now ripe for review.
I. Factual and Procedural History
The relevant factual history is set forth in detail in the court's October 29, 2010, Opinion and need not be repeated in full herein. See Project Vote/Voting for Am., Inc. v. Long, 752 F. Supp. 2d 697, 698-701 (E.D. Va. 2010) (denying Defendants' Motion to Dismiss). In brief review, Project Vote and Advancement Project, a national civil and voting rights organization with which Project Vote works, sought to inspect and obtain copies of
the completed voter registration applications of any individual who timely submitted an application at any time from January 1, 2008, through October 31, 2008, who was not registered to vote in time for the November 4, 2008 general election, and also other documents, such as documents identifying the reasons the applications were rejected. Compl. H 15 (internal quotation marks omitted). This request was made pursuant to the National Voter Registration Act's ("NVRA") Public Disclosure Provision, 42 U.S.C. § 1973gg-6(i)(1) (hereinafter referred to as the "Public Disclosure Provision").

Defendants did not permit Project Vote to inspect or copy these records (collectively referred to as the "Requested Records"), purportedly because Virginia Code § 24.2-444 prohibited their disclosure, Compl. f 17, and the Public Disclosure Provision did not require that they be made available for inspection and photocopying. Id. H 22.
In the Complaint, Project Vote alleged that the NVRA's Public Disclosure Provision required that the Requested Records be available to the public for inspection because they are records "'concerning the implementation of programs or activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters.'" Id. H 29 (quoting 42 U.S.C. § 1973gg-6(i) (1)). Additionally, to the extent that the Virginia statute limited the availability of the Requested Records to the
public for inspection and photocopying, Project Vote argued it was superseded by the NVRA, pursuant to the Supremacy Clause of the United
States Constitution. Therefore, Project Vote asked the court to: 1) declare that Defendants were in violation of the NVRA; 2) declare that the NVRA preempted Virginia Code § 24.2-444, and any other
Virginia law or regulation stating the same; 3) " [p] ermanently enjoin Defendants from refusing to permit access to any requesting party for copy and/or inspection of voter registration applications and related records, as sought by Project Vote in this matter"; and 4)

award Project Vote the costs incurred in pursuing this action, as authorized by 42 U.S.C. § 1973gg-9(c). Id_;_ at 11.
The court issued its Opinion granting in part Project Vote's Motion for Summary Judgment on July 20, 2011. See Project Vote/Voting for Am., Inc. v. Long, 813 F. Supp. 2d 738 (E.D. Va. 2011) . The court found "that the NVRA's Public Disclosure Provision, 42 U.S.C. § 1973gg-6(i)(1), grants the plaintiff access to completed voter registration applications with the voters' SSNs redacted for inspection and photocopying." Id. at 743. The court issued a permanent injunction requiring disclosure of completed voter
registration applications. Id. at 744. However, the court found "that the public interest would be disserved, if the defendants are permanently enjoined from refusing to permit inspection and photocopying of voter registration applications that were completed prior to final judgment in this case, even if the SSNs are redacted." Id. at 745 (emphasis in original) . The court further clarified that, "[i]n other words, the defendants are not enjoined from refusing to permit access to the Requested Records, but are so enjoined as to voter registration applications completed subsequent to final judgment in this case." Id. at 744 n.9. The court stayed its judgment on August 1, 2011, pending the outcome of Defendants' appeal of its decision. On June 15, 2012, the United States Court of Appeals for the Fourth Circuit affirmed this court' s opinion. See

Project Vote/Voting for Am., Inc. v. Long, 682 F.3d 331 (4th Cir.
2012). The Fourth Circuit noted in conclusion that it "also
decline [d] to address every particular question that may arise with respect to the implementation of Section 8 (i) (1) . That is best left to the trial court upon remand." Id. at 340. The Fourth Circuit's mandate issued on July 9, 2012. On July 20, 2012, this court issued an order lifting its stay of its judgment, and directing the parties to file responses concerning any subsequent action necessary before
the court closed the case. See Order, ECF No. 86. II. Analysis
Defendants filed their Motion for Review on July 27, 2012. Defendants ask this court to address additional questions regarding
the implementation of the court's July 20, 2011, Opinion. Defendants' requests can be grouped into two categories: (1) a request for permission to redact additional personal information, beyond SSNs, from the completed voter registration forms provided for disclosure; and (2) a request for the prospective nature of the
relief to commence from the date of the court's final order. Mot.
Review tH 5-11. Project Vote opposes both requests, and argues that the court should deny Defendants' Motion for Review. See Project
Vote's Resp. 5-6.

A. Redaction of Additional Application Information In general, Defendants state that "the Fourth Circuit, upon noting the significant privacy concerns implicated by public disclosure of voter registration applications, even with SSNs redacted 'also decline[d] to address every particular question that may arise with respect to the implementation of Section 8(i)(1). That is best left to the trial court on remand.'" Mot. Review U 2. Defendants now request permission to redact: the applicant's home address, if the address is in a category protected under Virginia law pursuant to Virginia Code § 24.2-418.B; the signature of the applicant; and the month and day of birth of the applicant, while
leaving the birth year subject to disclosure. Id. UH 5-10. In support of their request, Defendants point to the court's decision
to allow redaction of SSNs from the voter registration forms, "which are not expressly excluded from disclosure under the NVRA, " and argue that the home address, signature, and birth day and month present the same critical privacy concerns. Id. UH 8-10. With regard to home addresses specifically, Defendants additionally argue that "there is no reason to believe that Congress1 enactment of the NVRA public disclosure provision was meant to preempt these important privacy protections granted by state law to those identified in Va. Code § 418.B." Id. H 8. Project Vote argues that the question of redaction has been decided by both this court and the Fourth Circuit,

and there is no reason to revisit that decision. Project Vote's
Resp. 3. This court agrees with Project Vote.
Moreover, and contrary to Defendants' argument, Congress has
made its intent clear with regard to disclosure of an applicant's
address, signature, and birth date; disclosure of that information,
unlike SSNs, is required by the statute. As the Fourth Circuit
stated:
It is not the province of this court ... to strike the proper balance between transparency and voter privacy. That is a policy question properly decided by the legislature, not the courts, and Congress has already answered the question by enacting NVRA Section 8(i)(1), which plainly requires disclosure of completed voter registration applications.
Project Vote, 682 F.3d at 339.1 The plain meaning of the NVRA's
disclosure requirement is that disclosure of completed voter
registration applications containing the address, birth date, and
signature of applicants includes disclosure of that information.
See Project Vote, 752 F. Supp. 2d at 710. Further, the NVRA requires
that all states accept a federal form designed in accordance with
the statute's guidelines as a voter registration application. See
1 This court basically made the same observation in its decision on
Defendants' Motion to Dismiss. See Project Vote, 752 F. Supp. 2d at 710 ("Congress has already considered the effect on the statute's purposes of disclosing certain information to the public . . . .") . This court also specifically stated: "[T]he court will not undermine the purposeful usage of a broad term by Congress, in order to limit the scope of the statute. Moreover, the court will not, uninvited by the Constitution or Congress, craft or infer additional exceptions." Id. at 708 (citations omitted).

42 U.S.C. § 1973gg-7.

That form, the National Mail Voter

Registration Form, requires, among other things, the applicant's

address, date of birth, and attestation by signature or mark under

the penalty of perjury. See 11 C.F.R. § 9428.4; see also Gonzalez

v. Arizona, 677 F.3d 383, 395-96 (9th Cir. 2012) (discussing the

contents of the National Mail Voter Registration Form) . Thus, there

is no question that Congress intended that such information be

disclosed under the statute.
Defendants' comparison of this information to the court's

rationale for redacting SSNs is also unfounded. SSNs, as this court

has previously held, are "uniquely sensitive and vulnerable to

abuse." See Project Vote, 752 F. Supp. 2d at 711-12. The Fourth

Circuit agreed with the court's analysis. See Project Vote, 682 F.3d

at 339 (discussing Greidinger v. Davis, 988 F.2d 1344 (4th Cir.

1993)) .2 This court also notes that, in contrast, applicants are not required to disclose their full SSNs to complete the National Mail

Voter Registration Form unless their state of residence requires such

information. See 11 C.F.R. § 9428.4(a)(6).
The court does not disagree with Defendants' position that

"allowing any person [to review] the voter registration applications

of individuals that are protected [by Virginia Code § 24.2-418.B]

2 This court also relied on Greidinger when analyzing SSNs. See Project Vote, 752 F. Supp. 2d at 710.
8

without the redaction of their home addresses would utterly abrogate these protections." Mot. Review H 8. However, as this court and the Fourth Circuit made clear, the proper balance between transparency and voter privacy is a legislative question that "Congress has already answered." Project Vote, 682 F.3d at 33 9; Project Vote, 752 F. Supp. 2d at 710. As this court found in its July 20, 2011, Opinion, "to the extent that any Virginia law, rule, or regulation forecloses disclosure of completed voter registration applications with the SSNs redacted," such law is "preempted by the
NVRA." Project Vote, 813 F. Supp. 2d at 743.3 As such, the court
DENIES Defendants' request in their Motion for Review to make any redactions of completed voter registration forms beyond the applicant's SSN.
B. Postponement of Commencement of Court's Injunction Defendants' second request is for the court to order that the injunction imposed by the court's July 20, 2011, Opinion take effect only "from the [forthcoming] date of this Court's final order." Mot. Review H 11. Although Defendants have taken steps to comply with the court's Opinion, "formal action by the State Board of Elections with regard to certain policies will be necessary to implement this

3 The state remains capable of addressing some privacy concerns

raised by public disclosure by adjusting the content of its state

voter registration form, so long as it continues to meet all of the

criteria of 42 U.S.C. § I973gg-7(b).

See 42 U.S.C.

§ 1973gg-4(a)(2).

Court's final order." Id. Project Vote argues that it has been entitled to prospective relief since the court issued its Opinion on July 20, 2011, which constituted a "final judgment." Project Vote's Resp. 5-6. Project Vote further argues that it "should not be further penalized by having the receipt of its relief made contingent on another future event, particularly when Defendants' motion places no constraints or deadlines on Defendants' alleged efforts to change their policies." Id. at 6.
The court's July 20, 2011, Opinion permanently enjoined Defendants "from refusing to permit inspection and photocopying of completed voter registration applications with the voters' SSNs redacted to the extent such applications are completed subsequent to final judgment in this case." Project Vote, 813 F. Supp. 2d at 745 (emphasis in original) . On that same day, the Clerk entered Judgment in the case in favor of Project Vote. See Judgment, ECF No. 64. This constituted final judgment in the case, such that the injunction became prospectively effective; the court again made this clear in its Order staying the case on August 1, 2011, noting that, "absent a stay, the defendants must disclose voter registration applications with the social security numbers ("SSN") redacted that are completed while the case is on appeal." Project Vote/Voting for
Am. , Inc. V. Long, 275 F.R.D. 473, 474-75 (E.D. Va. 2011) . The court then stayed the effect of the injunction pending appeal, which is
10

now complete. Thus, the court's July 20, 2012, Order, lifting the stay of its judgment after the Fourth Circuit remanded the case, re-imposed the effect of the court's permanent injunction.
The court is not persuaded by Defendants' argument that it should alter implementation of the injunction. Although Defendants claim that "formal action by the State Board of Elections with regard to certain policies will be necessary to implement this Court' s final order," Mot. Review. H 11, Defendants have had substantial time to prepare for implementation of the injunction during the pendency of the appeal and this court's stay. In granting the stay on August 1, 2011, the court cited the Declaration of Donald Palmer, ECF No. 67-1, which detailed that it would take approximately six months for the Virginia State Board of Elections to institute the necessary changes. See Project Vote, 275 F.R.D. at 474. The court thus noted that the "stay pending appeal gives the defendants time to prepare to properly implement this court's judgment, as well as gives the Virginia General Assembly" time to consider remedial legislation. Id. at 475. Defendants have had more than twice the
time that they estimated would be necessary to prepare and institute any necessary changes, and Defendants have not detailed any sufficient reasons for revisiting the court's decision. Therefore, the court DENIES Defendants' request in their Motion for Review to alter imposition of the court's injunction.
11

III. Conclusion

For the foregoing reasons, Defendants' Motion for Review is

DENIED. All outstanding motions and issues having been disposed of

on remand, the court closes this case. The Clerk SHALL forward a

copy of this Memorandum Final Order to counsel for the parties.

IT IS SO ORDERED.

JsL

Rebecca Beach Smith

Chief

_._

United States District Judge -Jcfgr

REBECCA BEACH SMITH CHIEF UNITED STATES DISTRICT JUDGE

Norfolk, Virginia August 3^ , 2012

12

 
 Case 2:10-cv-00075-RBS-DEM Document 108 Filed 09/20/12 Page 1 of 2 PageID# 1170
FILED: September 20, 2012 UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT ___________________ No. 12-2142 (L)
(2:10-cv-00075-RBS-DEM) ___________________
PROJECT VOTE/VOTING FOR AMERICA, INCORPORATED Plaintiff - Appellee
v. DONALD PALMER, in his official capacity as Secretary, State Board of Elections
Defendant - Appellant and ELISA LONG, in her official capacity as General Registrar of Norfolk, Virginia
Defendant
___________________ No. 12-2146
(2:10-cv-00075-RBS-DEM) ___________________
PROJECT VOTE/VOTING FOR AMERICA, INCORPORATED Plaintiff - Appellee
v. ELISA LONG, in her official capacity as General Registrar of Norfolk, Virginia

Case 2:10-cv-00075-RBS-DEM Document 108 Filed 09/20/12 Page 2 of 2 PageID# 1171
Defendant - Appellant and DONALD PALMER, in his official capacity as Secretary, State Board of Elections
Defendant ___________________ O R D E R ___________________
The court consolidates Case No. 12-2142(L) and Case No. 12-2146. Entry of appearance forms and disclosure statements filed by counsel and parties to the lead case are deemed filed in the secondary case.
For the Court--By Direction /s/ Patricia S. Connor, Clerk

 
 Case 2:10-cv-00075-RBS-DEM Document 113 Filed 01/24/13 Page 1 of 3 PageID# 1181

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

PROJECT VOTE/VOTING FOR

)

AMERICA, INC.,

)

)

Plaintiff,

)

)

Civil Action No.: 2:10-cv-75-RBS

v.

)

)

ELISA LONG, in her Official Capacity

)

as General Registrar of Norfolk, Virginia,

)

)

and

)

)

DONALD PALMER, in his Official Capacity

)

as Secretary of the State Board of Elections,

)

)

Defendants.

)

CONSENT DECREE Plaintiff initiated this action seeking a permanent injunction barring defendants from

refusing to permit inspection and photocopying of completed voter registration applications

pursuant to the National Voter Registration Act's public disclosure provisions, 42 U.S.C. §

1973gg-6(i)(1). On July 20, 2011, t his Court entered an Opinion and Judgment granting

plaintiff's motion for summary judgment for prospective relief. O n June 15, 2012, t he Fourth

Circuit Court of Appeals affirmed this Court's ruling and remanded this matter to this Court for

further proceedings. This Court entered a final order on August 22, 20 12, which defendants

appealed to the Fourth Circuit whereupon the parties agreed to settle this case on the terms that

follow.

WHEREFORE, the parties having freely given their consent, and the terms of this

Consent Decree being fair, reasonable, and just, it is hereby ORDERED, ADJUDGED and

DECREED that:

Case 2:10-cv-00075-RBS-DEM Document 113 Filed 01/24/13 Page 2 of 3 PageID# 1182

1. Defendant Long shall maintain for at least 2 years and shall make available for public inspection and, where available, photocopying at a reasonable cost, completed voter registration applications with the social security numbers redacted.
2. Defendant Palmer shall adopt guidelines designed to promote compliance with this Consent Decree throughout the Commonwealth of Virginia.
3. Notwithstanding the public disclosure provisions of the National Voter Registration Act, Defendants, in addition to redacting or authorizing the redaction of social security numbers, are authorized to redact or give guidance authorizing the redaction, of the residence street address of any individual that provides a post office box address in lieu of his street address as provided for by Va. Code §§ 24.2-418.B and -444(C)(ii), as those sections are codified at the time of this order.
And it is SO ORDERED.

Date: ____________________
Agreed:
/s/ Ryan M. Malone Ryan M. Malone VSB No. 48526 Ropes & Gray LLP 700 12th St NW Suite 900 Washington, DC 20005 (202) 508-4000 Email: ryan.malone@ropesgray.com Counsel for Plaintiff
/s/ Jeff W. Rosen Jeff W. Rosen

_________________________________ UNITED STATES DISTRICT JUDGE

2

Case 2:10-cv-00075-RBS-DEM Document 113 Filed 01/24/13 Page 3 of 3 PageID# 1183
VSB No. 22689 Pender & Coward PC 222 Central Park Ave Virginia Beach, VA 23462-3027 (757) 490-3000 Email: jrosen@pendercoward.com Counsel for Defendant Elisa Long
/s/ Joshua N. Lief Joshua N. Lief Senior Assistant Attorney General VSB No. 37094 Office of the Attorney General 900 East Main Street Richmond, Virginia 23219 Ph: (804) 786-3344 Fax: (804) 786-9907 Email: jlief@oag.state.va.us Counsel for Defendant Donald Palmer
3

 
 AppeaCl: a1s2e-221:4120-cv-D00o0c7: 53-0RBS-DEFMiledD: o0c1u/0m7e/2n0t 11313-1 PgF:ile1do0f 12/24/13 Page 1 of 2 PageID# 1184
FILED: January 7, 2013
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
___________________ No. 12-2142 (L)
(2:10-cv-00075-RBS-DEM) ___________________
PROJECT VOTE/VOTING FOR AMERICA, INCORPORATED, Plaintiff – Appellee,
v. DONALD PALMER, in his official capacity as Secretary, State Board of Elections,
Defendant – Appellant, and ELISA LONG, in her official capacity as General Registrar of Norfolk, Virginia,
Defendant.
___________________ No. 12-2146
(2:10-cv-00075-RBS-DEM) ___________________
PROJECT VOTE/VOTING FOR AMERICA, INCORPORATED, Plaintiff – Appellee,
v.

AppeaCl: a1s2e-221:4120-cv-D00o0c7: 53-0RBS-DEFMiledD: o0c1u/0m7e/2n0t 11313-1 PgF:ile2do0f 12/24/13 Page 2 of 2 PageID# 1185
ELISA LONG, in her official capacity as General Registrar of Norfolk, Virginia, Defendant – Appellant,
and DONALD PALMER, in his official capacity as Secretary, State Board of Elections,
Defendant. ___________________ O R D E R ___________________
Upon consideration of the joint motion for a limited remand, the court grants the motion. The court remands these cases to the district court for the limited purpose of permitting the district court to consider entry of a consent decree based upon settlement negotiations.
The parties shall file a status report on February 4, 2013 and every 30 days thereafter on the status of the case. The parties shall immediately notify this court in writing of any action taken by the district court.
For the Court /s/ Patricia S. Connor, Clerk

 
 Case 2:10-cv-00075-RBS-DEM Document 114 Filed 01/30/13 Page 1 of 3 PageID# 1186

FILED

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION
PROJECT VOTE/VOTING FOR
AMERICA, INC.,

JAN 3 0 2013
CLERK, US DISTRICT COURT
NORFOLK, VA

Plaintiff,

Civil Action No.: 2:10-cv-75-RBS

ELISA LONG, in her Official Capacity as General Registrar of Norfolk, Virginia,
and
DONALD PALMER, in his Official Capacity as Secretary of the State Board of Elections,
Defendants. CONSENT DECREE
Plaintiff initiated this action seeking a permanent injunction barring defendants from refusing to permit inspection and photocopying of completed voter registration applications pursuant to the National Voter Registration Act's public disclosure provisions, 42 U.S.C. § 1973gg-6(i)(l). On July 20, 2011, this Court entered an Opinion and Judgment granting plaintiffs motion for summary judgment for prospective relief. On June 15, 2012, the Fourth Circuit Court of Appeals affirmed this Court's ruling and remanded this matter to this Court for further proceedings. This Court entered a final order on August 22, 2012, which defendants appealed to the Fourth Circuit whereupon the parties agreed to settle this case on the terms that
follow.
WHEREFORE, the parties having freely given their consent, and the terms of this Consent Decree being fair, reasonable, and just, it is hereby ORDERED, ADJUDGED and
DECREED that:

Case 2:10-cv-00075-RBS-DEM Document 114 Filed 01/30/13 Page 2 of 3 PageID# 1187

1. Defendant Long shall maintain for at least 2 years and shall make available for

public inspection and, where available, photocopying at a reasonable cost, completed voter

registration applications with the social security numbers redacted.

2. Defendant Palmer shall adopt guidelines designed to promote compliance with

this Consent Decree throughout the Commonwealth of Virginia. 3. Notwithstanding the public disclosure provisions of the National Voter

Registration Act, Defendants, in addition to redacting or authorizing the redaction of social

security numbers, are authorized to redact or give guidance authorizing the redaction, of the

residence street address of any individual that provides a post office box address in lieu of his

street address as provided for by Va. Code §§ 24.2-418.B and -444(C)(ii), as those sections are

codified at the time ofthis order.

And it is SO ORDERED.
Date: C^jJWA B0; SlQ\3

JsL Rebecca Beach Smith
U,rni.tedJBSOtaitieesf District Judge
UNITED STATES DISTRICT JUDGE

Agreed:

/s/ Ryan M. Mai one Ryan M. Malone
VSB No. 48526
Ropes & Gray LLP
700 12th St NW
Suite 900
Washington, DC 20005 (202) 508-4000 Email: ryan.malone@ropesgray.com Counselfor Plaintiff

/s/Jeff W.Rosen Jeff W.Rosen

Case 2:10-cv-00075-RBS-DEM Document 114 Filed 01/30/13 Page 3 of 3 PageID# 1188
VSB No. 22689 Pender & Coward PC 222 Central Park Ave
Virginia Beach, VA 23462-3027 (757) 490-3000 Email: jrosen@pendercoward.com Counselfor Defendant Elisa Long
/s/ Joshua N. Lief
Joshua N. Lief
Senior Assistant Attorney General
VSB No. 37094
Office of the Attorney General
900 East Main Street
Richmond, Virginia 23219 Ph: (804) 786-3344 Fax: (804) 786-9907 Email: jlief@oag.state.va.us Counselfor Defendant Donald Palmer

 
 Case: 2:10-cv-75 As of: 06/01/2013 10:05 PM EDT 1 of 11
U.S. District Court Eastern District of Virginia − (Norfolk) CIVIL DOCKET FOR CASE #: 2:10−cv−00075−RBS−DEM

CLOSED

Project Vote/Voting for America, Inc. v. Long et al Assigned to: Chief District Judge Rebecca Beach Smith Referred to: Magistrate Judge Douglas E. Miller Case in other court: USCA 4th Circuit, 11−01809
USCA 4th Circuit, 12−02142
USCA 4th Circuit, 12−02146 Cause: 42:1973 National Voter Registration Act
Plaintiff

Date Filed: 02/16/2010 Date Terminated: 08/22/2012 Jury Demand: None Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question

Project Vote/Voting for America, Inc.

represented by Augustine Martin Ripa Ropes &Gray LLP 700 12th St NW Suite 900 Washington, DC 20005 202−508−4600 Fax: 202−383−9861 Email: augustine.ripa@ropesgray.com TERMINATED: 11/20/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason Gassan Idilbi Moore 100 North Tryon St Suite 4700 Charlotte, NC 28202−4003 (704) 331−1000 Fax: (704) 331−1159 Email: jasonidilbi@mvalaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ryan Morland Malone Ropes &Gray LLP 700 12th St NW Suite 900 Washington, DC 20005 (202) 508−4000 Email: ryan.malone@ropesgray.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bradley E. Heard Advancement Project 1220 L Street, NW Suite 850 Washington, DC 20005 **NA** (202) 728−9557 Fax: (202) 728−9558 Email: bheard@advancementproject.org TERMINATED: 11/29/2010 PRO HAC VICE ATTORNEY TO BE NOTICED

Brian Williams Mellor Project Vote

Case: 2:10-cv-75 As of: 06/01/2013 10:05 PM EDT 2 of 11
737 1/2 8th St SE Washington, DC 20003 **NA** (202) 546−4173 Fax: (617) 507−6402 Email: bmellor@projectvote.org PRO HAC VICE ATTORNEY TO BE NOTICED
Chhaya Malik Bhalotra The Advantage Project 1220 L Street NW Suite 850 Washington, DC 20005 **NA** (202) 728−9557 Fax: (202) 728−9558 Email: cbhalotra@advancementproject.org PRO HAC VICE ATTORNEY TO BE NOTICED
David O. Stewart Ropes &Gray, LLP 700 12th St., N.W. Suite 900 Washington, DC 20005 **NA** (202) 508−4600 Fax: (202) 508−4650 Email: david.stewart@ropesgray.com PRO HAC VICE ATTORNEY TO BE NOTICED
Douglas Harry Hallward−Driemeier Ropes &Gray LLP 700 12th St. NW Suite 900 Washington, DC 20005 **NA** (202) 508−4600 Fax: (202) 383−8354 Email: douglas.hallward−driemeier@ropesgray.com PRO HAC VICE ATTORNEY TO BE NOTICED
Teresa James Project Vote, Inc. 737 1/2 8th St. SE Washington, DC 30003 **NA** (202) 546−4173 Fax: (202) 546−3675 Email: tjames@projectvote.org PRO HAC VICE ATTORNEY TO BE NOTICED
Yolanda Sheffield Project Vote for America, Inc. 737 1/2 8th St. SE Washington, DC 20003 **NA** (202) 546−4173 Fax: (202) 543−3675 Email: ysheffield@projectvote.org TERMINATED: 11/29/2010

Case: 2:10-cv-75 As of: 06/01/2013 10:05 PM EDT 3 of 11

PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
Elisa Long in Her Official Capacity as General Registrar of Norfolk, VA

represented by Jeff Wayne Rosen Pender &Coward PC 222 Central Park Ave Virginia Beach, VA 23462−3027 (757) 490−3000 Email: jrosen@pendercoward.com ATTORNEY TO BE NOTICED

Stephen Michael Hall 8128 Bendemeer Road Richmond, VA 23235 (804) 360−5079 Email: stevehall2003@gmail.com TERMINATED: 08/10/2012 ATTORNEY TO BE NOTICED

Defendant
Donald Palmer in his Official Capacity as Secretary, State Board of Elections

represented by Joshua Noah Lief Office of the Attorney General (Richmond) 900 E Main St Richmond, VA 23219 804−786−3344 Fax: 804−786−9907 Email: jlief@oag.state.va.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeff Wayne Rosen (See above for address) ATTORNEY TO BE NOTICED

Date Filed 02/16/2010
02/16/2010 02/18/2010 02/18/2010 03/22/2010 03/22/2010
03/23/2010

# Docket Text
1 COMPLAINT for declaratory and injunctive relief against Elisa Long, Nancy Rodrigues ( Filing fee $ 350, receipt number 14683011496.), filed by Project Vote/Voting for America, Inc.. (Attachments: # 1 Civil Cover Sheet, # 2 Receipt)(jcow, ) (Entered: 02/18/2010)
2 Financial Interest Disclosure Statement (Local Rule 7.1) by Project Vote/Voting for America, Inc.. (jcow, ) (Entered: 02/18/2010)
3 Summons with one copy issued as to Elisa Long, magistrate judge notice with judge's instructions mailed to counsel. (Attachments: # 1 Supplement)(jcow, ) (Entered: 02/18/2010)
4 Summons with one copy issued as to Nancy Rodrigues, magistrate judge notice and judge's instructions mailed to counsel. (Attachments: # 1 Supplement)(jcow, ) (Entered: 02/18/2010)
5 AFFIDAVIT re 3 Summons Issued Proof of Service by Project Vote/Voting for America, Inc.. (Idilbi, Jason) (Entered: 03/22/2010)
Notice of Correction re 5 Affidavit; this document is a return of service for an executed summons. This document should be sent hard copy to the clerk's office for filing. The filing user has been requested to send theoriginal document to the court for filing. (jcow, ) (Entered: 03/22/2010)
6 SUMMONS Returned Executed, Elisa Long served on 3/9/2010 (jcow, ) (Entered: 03/23/2010)

Case: 2:10-cv-75 As of: 06/01/2013 10:05 PM EDT 4 of 11

03/26/2010 03/26/2010 03/26/2010 03/29/2010 03/29/2010 03/30/2010 03/30/2010 03/30/2010 03/31/2010 04/05/2010 04/07/2010 04/07/2010 04/09/2010 04/09/2010 04/12/2010 04/13/2010 04/15/2010 06/28/2010 07/30/2010

7 NOTICE of Appearance by Stephen Michael Hall on behalf of Nancy Rodrigues (Hall, Stephen) (Entered: 03/26/2010)
8 MOTION to Dismiss by Elisa Long, Nancy Rodrigues. (Rosen, Jeff) (Entered: 03/26/2010)
9 Memorandum in Support re 8 MOTION to Dismiss filed by Elisa Long, Nancy Rodrigues. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Rosen, Jeff) (Entered: 03/26/2010)
10 MOTION for Bradley E. Heard to appear Pro hac vice by Project Vote/Voting for America, Inc.. (Attachments: # 1 Receipt)(jcow, ) (Entered: 03/29/2010)
11 MOTION for Yolanda Sheffield to appear Pro hac vice by Project Vote/Voting for America, Inc.. (Attachments: # 1 Receipt)(jcow, ) (Entered: 03/29/2010)
12 SUMMONS Returned Executed, Nancy Rodrigues served on 3/3/2010 (jcow, ) (Entered: 03/30/2010)
13 ORDER granting 10 Motion for Pro hac vice, Appointed Bradley E. Heard for Project Vote/Voting for America, Inc.. Signed by District Judge Rebecca Beach Smith and filed on 3/30/10. (jcow, ) (Entered: 03/30/2010)
14 ORDER granting 11 Motion for Pro hac vice, Appointed Yolanda Sheffield for Project Vote/Voting for America, Inc.. Signed by District Judge Rebecca Beach Smith and filed on 3/30/10. (jcow, ) (Entered: 03/30/2010)
15 NOTICE by Project Vote/Voting for America, Inc., Nancy Rodrigues re 6 Summons Returned Executed Joint Notice (Ripa, Augustine) (Entered: 03/31/2010)
16 MOTION for David O. Stewart to appear Pro hac vice by Project Vote/Voting for America, Inc.. (Attachments: # 1 Receipt)(jcow, ) (Entered: 04/05/2010)
17 NOTICE by Elisa Long, Nancy Rodrigues re 8 MOTION to Dismiss Notice of Attachment for Motion to Dismiss (Attachments: # 1 Exhibit A)(Rosen, Jeff) (Entered: 04/07/2010)
18 ORDER granting 16 Motion for Pro hac vice, Appointed David O. Stewart for Project Vote/Voting for America, Inc.. Signed by District Judge Rebecca Beach Smith and filed on 4/7/10. (jcow, ) (Entered: 04/07/2010)
19 Memorandum in Opposition re 8 MOTION to Dismiss filed by Project Vote/Voting for America, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Malone, Ryan) (Entered: 04/09/2010)
20 Request for Hearing by Project Vote/Voting for America, Inc. re 8 MOTION to Dismiss (Malone, Ryan) (Entered: 04/09/2010)
21 MOTION for Douglas H. Hallward−Driemeier to appear Pro hac vice by Project Vote/Voting for America, Inc.. (Attachments: # 1 Receipt)(jcow, ) (Entered: 04/12/2010)
22 ORDER granting 21 Motion for Pro hac vice, Appointed Douglas Harry Hallward−Driemeier for Project Vote/Voting for America, Inc.. Signed by District Judge Rebecca Beach Smith and filed on 4/13/10. (jcow, ) (Entered: 04/13/2010)
23 Reply to 19 Memorandum in Opposition filed by Elisa Long, Nancy Rodrigues. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Rosen, Jeff) (Entered: 04/15/2010)
Set/Reset Hearings: Motion Hearing set for 7/30/2010, at 11:30 AM in Norfolk Courtroom 1 before District Judge Rebecca Beach Smith. (mgra) (Entered: 06/28/2010)
MOTION HEARING proceedings held before District Judge Rebecca Beach Smith: Ryan M. Malone, Jason G. Idilbi, Augustine M. Ripa, Bradley E. Heard for plaintiff; Jeff W. Rosen and Stephen M. Hall for defendants. Motion Hearing held on 7/30/2010 re 8 MOTION to Dismiss filed by Nancy Rodrigues, Elisa Long. Arguments heard. Court takes matter under advisement. (Court Reporter Gloria

Case: 2:10-cv-75 As of: 06/01/2013 10:05 PM EDT 5 of 11

08/04/2010 08/10/2010 08/10/2010 09/09/2010 09/10/2010 09/14/2010 09/15/2010 10/29/2010 11/08/2010
11/09/2010 11/10/2010 11/10/2010 11/10/2010 11/10/2010 11/10/2010 11/15/2010 11/17/2010 11/17/2010 11/23/2010

Smith, OCR.) THIS IS A TEXT ONLY ENTRY. A PDF DOCUMENT IS NOT ATTACHED TO THIS ENTRY. (mgra, ) (Entered: 07/30/2010)
25 Response To The August 2, 2010 Submission By Defendants filed by Project Vote/Voting for America, Inc.. (Malone, Ryan) (Entered: 08/04/2010)
26 Letter to the court from Pender &Coward (Part 1). (jcow, ) (Entered: 08/10/2010)
27 Letter to the court from Pender &Coward (Part 2). (jcow, ) (Entered: 08/10/2010)
28 MOTION for Chhaya M. Bhalotra to appear Pro hac vice by Project Vote/Voting for America, Inc.. (Attachments: # 1 Receipt)(jcow, ) (Entered: 09/10/2010)
29 MOTION for Teresa James to appear Pro hac vice by Project Vote/Voting for America, Inc.. (Attachments: # 1 Receipt)(jcow, ) (Entered: 09/10/2010)
30 ORDER granting 29 Motion for Pro hac vice, Appointed Teresa James for Project Vote/Voting for America, Inc.. Signed by District Judge Rebecca Beach Smith and filed on 9/14/10. (jcow, ) (Entered: 09/14/2010)
31 ORDER granting 28 Motion for Pro hac vice, Appointed Chhaya Malik Bhalotra for Project Vote/Voting for America, Inc.. Signed by District Judge Rebecca Beach Smith and filed on 9/15/10. (jcow, ) (Entered: 09/15/2010)
32 OPINION denying 8 Motion to Dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6). Signed by District Judge Rebecca Beach Smith and filed on 10/29/2010. (rlam) (Entered: 10/29/2010)
33 TRANSCRIPT of proceedings held on 07−30−2010 before Judge Rebecca Beach Smith. Court Reporter/Transcriber Gloria Smith, telephone number 757−222−7074. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 12/8/2010. Redacted Transcript Deadline set for 1/8/2011. Release of Transcript Restriction set for 2/6/2011.(smith, gloria) (Entered: 11/08/2010)
34 Notice of Filing of Official Transcript re 33 Transcript. (jcow, ) (Entered: 11/09/2010)
35 ANSWER to 1 Complaint by Nancy Rodrigues.(Hall, Stephen) (Entered: 11/10/2010)
36 ANSWER to 1 Complaint and Affirmative Defense by Elisa Long.(Rosen, Jeff) (Entered: 11/10/2010)
37 MOTION to Withdraw as Attorney for Yolanda Sheffield and Bradley Heard by Project Vote/Voting for America, Inc.. (Attachments: # 1 Proposed Order)(Malone, Ryan) (Entered: 11/10/2010)
38 Memorandum in Support re 37 MOTION to Withdraw as Attorney for Yolanda Sheffield and Bradley Heard filed by Project Vote/Voting for America, Inc.. (Malone, Ryan) (Entered: 11/10/2010)
Refer for 16(b) (jcow, ) (Entered: 11/10/2010)
39 RULE 26(f) PRETRIAL ORDER: Initial Pretrial Conference set for 12/3/2010 at 09:00 AM. Signed by Magistrate Judge Douglas E. Miller and filed on 11/15/10. (jcow, ) (Entered: 11/15/2010)
40 NOTICE by Elisa Long re 39 Scheduling Order Notice of Change of Date of Rule 16 (b) Scheduling Conference (Rosen, Jeff) (Entered: 11/17/2010)
Set/Reset Scheduling Order Deadlines: Initial Pretrial Conference set for 11/30/2010 at 09:00 AM. (jcow, ) (Entered: 11/17/2010)
41 STIPULATION re 39 Scheduling Order by Elisa Long, Project Vote/Voting for America, Inc., Nancy Rodrigues. (Hall, Stephen) (Entered: 11/23/2010)

Case: 2:10-cv-75 As of: 06/01/2013 10:05 PM EDT 6 of 11

11/23/2010 11/23/2010
11/29/2010 11/29/2010 11/30/2010 12/01/2010
01/20/2011 01/21/2011 01/31/2011 01/31/2011 01/31/2011 02/01/2011
03/01/2011 03/02/2011 03/09/2011 03/16/2011 03/22/2011 05/17/2011 05/18/2011

42 STIPULATION re 39 Scheduling Order by Elisa Long, Project Vote/Voting for America, Inc., Nancy Rodrigues. (Hall, Stephen) (Entered: 11/23/2010)
Notice of Correction re 41 Stipulation, 42 Stipulation: Counsel called to advise that 41 contained the word "draft" on the document; therefore, counsel filed 42 . Counsel has been advised that 42 is not a full−sized document, but no further action is required. Counsel is advised that discovery matters should be addressed at the 16(b) conference and/or by appropriate motion. (mwin, ) (Entered: 11/23/2010)
MOTION REFERRED to Magistrate Judge Douglas E. Miller. 37 MOTION to Withdraw as Attorney for Yolanda Sheffield and Bradley Heard (jcow, ) (Entered: 11/29/2010)
43 ORDER granting 37 Motion to Withdraw as Attorney. Attorney Bradley E. Heard and Yolanda Sheffield terminated. Signed by Magistrate Judge Douglas E. Miller on November 29, 2010. (Miller, Douglas) (Entered: 11/29/2010)
Rule 16(b) Scheduling Conference held on 11/30/2010. (sche) (Entered: 12/02/2010)
44 RULE 16(b) SCHEDULING ORDER: Final Pretrial Conference set for 5/5/2011 at 10:00 AM. Bench Trial set for 5/23/2011 at 11:00 AM before District Judge Rebecca Beach Smith. Signed by District Judge Rebecca Beach Smith on 11/30/10 and filed on 12/1/10. (jcow, ) (Entered: 12/01/2010)
45 MOTION for Brian Williams Mellor to appear Pro hac vice by Project Vote/Voting for America, Inc.. (Attachments: # 1 Receipt)(jcow, ) (Entered: 01/20/2011)
46 ORDER granting 45 Motion for Pro hac vice Appointed Brian Williams Mellor for Project Vote/Voting for America, Inc. Signed by District Judge Rebecca Beach Smith and filed on 1/21/2011. (rsim ) (Entered: 01/21/2011)
47 MOTION for Summary Judgment by Project Vote/Voting for America, Inc.. (Malone, Ryan) (Entered: 01/31/2011)
48 Memorandum in Support re 47 MOTION for Summary Judgment filed by Project Vote/Voting for America, Inc.. (Malone, Ryan) (Entered: 01/31/2011)
49 Joint MOTION Regarding Proposed Briefing Schedule by Elisa Long, Project Vote/Voting for America, Inc., Nancy Rodrigues. (Attachments: # 1 Proposed Order)(Malone, Ryan) (Entered: 01/31/2011)
50 ORDER granting 49 Motion for brief scheduling order; ordering that defendants' opposition to plaintiff's motion for summary judgment shall be filed by 3/2/11 and plaintiff's reply in support of its motion for summary judgment shall be filed by 3/16/11. Signed by District Judge Rebecca Beach Smith on 1/31/11 and filed on 2/1/11. (jcow, ) (Entered: 02/01/2011)
51 Memorandum in Opposition re 47 MOTION for Summary Judgment filed by Nancy Rodrigues. (Attachments: # 1 Exhibit A)(Hall, Stephen) (Entered: 03/01/2011)
52 Opposition to 47 MOTION for Summary Judgment filed by Elisa Long. (Attachments: # 1 Exhibit 1, # 2 Exhibit 1A, # 3 Exhibit 1B, # 4 Exhibit 1C, # 5 Exhibit 1D, # 6 Exhibit 1E)(Rosen, Jeff) (Entered: 03/02/2011)
53 Request for Hearing by Nancy Rodrigues re 47 MOTION for Summary Judgment, 51 Memorandum in Opposition (Hall, Stephen) (Entered: 03/09/2011)
54 REPLY to Response to Motion re 47 MOTION for Summary Judgment filed by Project Vote/Voting for America, Inc.. (Malone, Ryan) (Entered: 03/16/2011)
Settlement Conference set for 4/1/2011 12:00 PM in Chambers before District Judge Rebecca Beach Smith. (sche) (Entered: 03/22/2011)
Status Conference set for 6/10/2011 at 12:00 PM in Chambers before District Judge Rebecca Beach Smith. (sche) (Entered: 05/17/2011)
55 Letter. (Rosen, Jeff) (Entered: 05/18/2011)

Case: 2:10-cv-75 As of: 06/01/2013 10:05 PM EDT 7 of 11

06/10/2011
06/10/2011 06/24/2011 07/01/2011 07/06/2011 07/06/2011 07/07/2011 07/07/2011 07/20/2011
07/20/2011
07/25/2011 07/25/2011 07/25/2011 07/25/2011 07/25/2011

56 MEMORANDUM ORDER that the court directs that any further submissions regarding the Motion for Summary Judgment, or any proposed consent decree resolving the matter, be filed on or before July 1, 2011, after which the court will proceed to address the matter and render final judgment thereon. Nancy Rodrigues, in her official capacity as Secretary of the Virginia State Board of Elections ("SBE"), was originally named as a defendant in this action. Donald Palmer replaced Rodrigues as Secretary of the SBE on January 28, 2011. The court DIRECTS the Clerk to substitute Palmer for Rodrigues as a named defendant pursuant to Federal Rule of Civil Procedure 25(d). Signed by District Judge Rebecca Beach Smith and filed on 6/10/11. (jcow, ) (Entered: 06/13/2011)
Status Conference held in Chambers on 6/10/2011 before District Judge Rebecca Beach Smith. (sche) (Entered: 07/01/2011)
57 NOTICE by Elisa Long, Donald Palmer re 56 Order,, (Attachments: # 1 Exhibit 1, # 2 Exhibit 1−A, # 3 Exhibit 1−B, # 4 Exhibit 1−C)(Rosen, Jeff) (Entered: 06/24/2011)
58 Response to 56 Order,, of June 10, 2011 filed by Project Vote/Voting for America, Inc.. (Malone, Ryan) (Entered: 07/01/2011)
59 MOTION for Leave to File Reply to Plaintiff's Supplemental Memorandum in Response to the Court's June 10, 2011 Memorandum Order by Elisa Long. (Attachments: # 1 Exhibit A)(Rosen, Jeff) (Entered: 07/06/2011)
60 Memorandum in Support re 59 MOTION for Leave to File Reply to Plaintiff's Supplemental Memorandum in Response to the Court's June 10, 2011 Memorandum Order filed by Elisa Long. (Rosen, Jeff) (Entered: 07/06/2011)
61 ORDER granting defendant Elisa Long's 59 Motion for Leave to File reply to plaintiff's supplemental memorandum in response to the court's 6/10/11 memorandum order. Signed by District Judge Rebecca Beach Smith and filed on 7/7/11. (jcow, ) (Entered: 07/07/2011)
62 Reply to 58 plaintiff's suupplemental memorandum response to the court's 6/10/11 memorandum order, filed by Elisa Long. (jcow, ) (Entered: 07/07/2011)
63 OPINION that the Plaintiff's Motion for SummaryJudgment is GRANTED insofar as the plaintiff's request fordeclaratory relief; the plaintiff's Motion for Summary Judgment isDENIED, insofar as the plaintiff requests retrospective relief;and the plaintiff's Motion for Summary Judgment is GRANTED,insofar as the plaintiff's request prospective injunctive relief. See Opinion for specific court findings. Signed by District Judge Rebecca Beach Smith and filed on 7/20/11. (jcow, ) (Entered: 07/20/2011)
64 JUDGMENT on decision of the court that the Plaintiff's Motion for SummaryJudgment is GRANTED insofar as the plaintiff's request fordeclaratory relief; the plaintiff's Motion for Summary Judgment isDENIED, insofar as the plaintiff requests retrospective relief;and the plaintiff's Motion for Summary Judgment is GRANTED,insofar as the plaintiff's request prospective injunctive relief; entered by the Clerk and filed on 7/20/11. (jcow, ) (Entered: 07/20/2011)
65 NOTICE OF APPEAL as to 63 Memorandum Opinion,, 64 Clerk's Judgment, by Elisa Long, Donald Palmer. (Hall, Stephen) (Entered: 07/25/2011)
66 MOTION to Stay re 63 Memorandum Opinion,, 64 Clerk's Judgment, by Elisa Long, Donald Palmer. (Hall, Stephen) (Entered: 07/25/2011)
67 Memorandum in Support re 66 MOTION to Stay re 63 Memorandum Opinion,, 64 Clerk's Judgment, filed by Elisa Long, Donald Palmer. (Attachments: # 1 Affidavit)(Hall, Stephen) (Entered: 07/25/2011)
68 Emergency MOTION re 66 MOTION to Stay re 63 Memorandum Opinion,, 64 Clerk's Judgment, by Elisa Long, Donald Palmer. (Hall, Stephen) (Entered: 07/25/2011)
69 Memorandum in Support re 68 Emergency MOTION re 66 MOTION to Stay re 63 Memorandum Opinion,, 64 Clerk's Judgment, filed by Elisa Long, Donald Palmer. (Hall, Stephen) (Entered: 07/25/2011)

Case: 2:10-cv-75 As of: 06/01/2013 10:05 PM EDT 8 of 11

07/25/2011 07/25/2011
07/26/2011 07/28/2011 07/29/2011 08/01/2011 08/02/2011 08/02/2011 08/03/2011 08/03/2011
08/10/2011 06/15/2012 06/15/2012
06/28/2012 06/29/2012 07/09/2012

70 NOTICE by Elisa Long, Donald Palmer re 67 Memorandum in Support of Motion to Stay Judgment (Attachments: # 1 Exhibit)(Hall, Stephen) (Entered: 07/25/2011)
71 ORDER re Motion for Expedited Ruling on the Motion to Stay Judgment; directing that Project Vote must file a response, if any, on or before July 28, 2011, at 5:00 p.m., and that the defendants must file a reply, if any, on or before July 29, 2011, at 5:00 p.m. Signed by District Judge Rebecca Beach Smith and filed on 7/25/11. (mwin, ) (Entered: 07/25/2011)
72 Transmission of Notice of Appeal to US Court of Appeals re 65 Notice of Appeal. (All case opening forms, plus the transcript guidelines, may be obtained from the Fourth Circuit's website at www.ca4.uscourts.gov) (Attachments: # 1 notice of appeal)(jcow, ) (Entered: 07/26/2011)
73 Memorandum in Opposition re 66 MOTION to Stay re 63 Memorandum Opinion,, 64 Clerk's Judgment, filed by Project Vote/Voting for America, Inc.. (Malone, Ryan) (Entered: 07/28/2011)
74 REPLY to Response to Motion re 66 MOTION to Stay re 63 Memorandum Opinion,, 64 Clerk's Judgment, filed by Elisa Long, Donald Palmer. (Hall, Stephen) (Entered: 07/29/2011)
75 ORDER granting 66 Motion to Stay judgment, and hereby STAYS its July 20,2011, judgment pending appeal. Signed by District Judge Rebecca Beach Smith and filed on 8/1/11. (jcow, ) (Entered: 08/01/2011)
76 USCA Appeal Fees received $ 455, receipt number 24683012384 re 65 Notice of Appeal filed by Donald Palmer, Elisa Long (jcow, ) (Entered: 08/02/2011)
77 USCA Case Number 11−1809; case manager: RJ Warren; USCA 4th Circuit for 65 Notice of Appeal filed by Donald Palmer, Elisa Long. (jcow, ) (Entered: 08/02/2011)
78 MOTION for Attorney Fees and Costs by Project Vote/Voting for America, Inc.. (Malone, Ryan) (Entered: 08/03/2011)
79 Memorandum in Support re 78 MOTION for Attorney Fees and Costs filed by Project Vote/Voting for America, Inc.. (Attachments: # 1 Exhibit A − Mellor Declaration, # 2 Exhibit B − Malone Declaration, # 3 Exhibit C − Fee Summary, # 4 Exhibit D − Fee Legend, # 5 Exhibit E − Time Entry Detail, # 6 Exhibit F − Costs and Expenses)(Malone, Ryan) (Entered: 08/03/2011)
80 CONSENT ORDER to stay the motion to recover attorneys' fees and costs until further notice, including any further briefing on the motion. Signed by District Judge Rebecca Beach Smith and filed on 8/10/11. (jcow, ) (Entered: 08/10/2011)
81 Opinion of USCA re 65 Notice of Appeal, affirming the judgment and remanding for further proceedings consistent with this decision. (mwin, ) (Entered: 06/15/2012)
82 USCA JUDGMENT as to 65 Notice of Appeal filed by Donald Palmer, Elisa Long: In accordance with the decision of this court, the judgment of the district court is affirmed. This case is remanded to the district court for further proceedings consistent with the court's decision. This judgment shall take effect upon issuance of this court's mandate in accordance with Fed. R. App. P. 41. (mwin, ) (Entered: 06/15/2012)
83 Memorandum in Support re 78 MOTION for Attorney Fees and Costs SUPPLEMENTAL filed by Project Vote/Voting for America, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Malone, Ryan) (Entered: 06/28/2012)
Notice of Correction re 83 Memorandum in Support: Counsel is advised that the mandate has not issued from the Fourth Circuit Court of Appeals. (mwin, ) (Entered: 06/29/2012)
84 USCA Mandate re 65 Notice of Appeal; The judgment of this court, entered June 15, 2012, takes effect today. This constitutes the formal mandate of this court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. (jcow, )

Case: 2:10-cv-75 As of: 06/01/2013 10:05 PM EDT 9 of 11

07/09/2012 07/20/2012
07/23/2012 07/23/2012 07/23/2012 07/23/2012 07/24/2012 07/24/2012 07/26/2012
07/27/2012 08/03/2012 08/06/2012 08/07/2012 08/10/2012 08/10/2012 08/10/2012

(Entered: 07/09/2012)
85 NOTICE of Appearance by Joshua Noah Lief on behalf of Donald Palmer (Lief, Joshua) (Entered: 07/09/2012)
86 ORDER − The court LIFTS its stay of its judgment pursuant to the court's Order of August 1, 2011. With regard to the Consent Order entered by the court on August 10, 2011, the court DIRECTS the parties to file responses concerning any subsequent action necessary by this court in light of the Fourth Circuit's decision within seven (7) days of the date of this Order. Absent any filings, the court will close the case and remove it from the docket. Signed by District Judge Rebecca Beach Smith and filed on 7/20/12. (mwin, ) (Entered: 07/20/2012)
87 MOTION for Extension of Time to File Response/Reply as to 83 Memorandum in Support, 78 MOTION for Attorney Fees and Costs by Elisa Long, Donald Palmer. (Rosen, Jeff) (Entered: 07/23/2012)
88 Response to 86 Order,, filed by Project Vote/Voting for America, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Malone, Ryan) (Entered: 07/23/2012)
89 Memorandum in Support re 87 MOTION for Extension of Time to File Response/Reply as to 83 Memorandum in Support, 78 MOTION for Attorney Fees and Costs filed by Elisa Long, Donald Palmer. (Rosen, Jeff) (Entered: 07/23/2012)
90 Waiver of re 87 MOTION for Extension of Time to File Response/Reply as to 83 Memorandum in Support, 78 MOTION for Attorney Fees and Costs by Elisa Long, Donald Palmer (Rosen, Jeff) (Entered: 07/23/2012)
91 MOTION to Substitute Attorney by Donald Palmer. (Lief, Joshua) (Entered: 07/24/2012)
Notice of Correction re 91 MOTION to Substitute Attorney. This motion is not a full consent motion as counsel who signed the motion for the plaintiff is not admitted to practice in this court. The motion will go forward as a regular motion with time allowed for any response. (jcow, ) (Entered: 07/24/2012)
92 ORDER − the court LIFTS its stay of plaintiff's Motion to Recover Attorneys' Fees and Costs ("Motion"). Defendants are DIRECTED to file their response to plaintiff's Motion and supplemental memorandum on or before August 3, 2012, with any reply by plaintiff due on or before August 10, 2012. Signed by District Judge Rebecca Beach Smith and filed on 7/25/12. (jcow, ) (Entered: 07/26/2012)
93 MOTION Motion for Review of Issues on Remand filed by Elisa Long, Donald Palmer. (Lief, Joshua) Modified on 7/27/2012 to correct title (jcow, ). (Entered: 07/27/2012)
94 RESPONSE in Opposition re 78 MOTION for Attorney Fees and Costs Defendants' Joint Brief in Opposition to Plaintiff Project Vote's Motion to Recover Attorney's Fees and Costs filed by Elisa Long, Donald Palmer. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Rosen, Jeff) (Entered: 08/03/2012)
MOTION REFERRED to Magistrate Judge Douglas E. Miller. 87 MOTION for Extension of Time to File Response/Reply as to 83 Memorandum in Support, 78 MOTION for Attorney Fees and Costs (jcow, ) (Entered: 08/06/2012)
95 RESPONSE in Opposition re 93 MOTION for Review of Issues on Remand filed by Project Vote/Voting for America, Inc.. (Malone, Ryan) (Entered: 08/07/2012)
MOTION REFERRED to Magistrate Judge Douglas E. Miller. 91 MOTION to Substitute Attorney (rsim, ) (Entered: 08/10/2012)
96 ORDER granting 91 Motion to Substitute Attorney. Attorney Stephen Michael Hall terminated, Defendants remain represented by attorneys Rosen and Lief. Signed by Magistrate Judge Douglas E. Miller on August 10, 2012. (Miller, Douglas) (Entered: 08/10/2012)
97 REPLY to Response to Motion re 78 MOTION for Attorney Fees and Costs filed by Project Vote/Voting for America, Inc.. (Malone, Ryan) (Entered: 08/10/2012)

Case: 2:10-cv-75 As of: 06/01/2013 10:05 PM EDT 10 of 11

08/13/2012 08/20/2012 08/22/2012
08/22/2012
08/22/2012
09/17/2012 09/17/2012
09/19/2012 09/19/2012 09/19/2012
09/20/2012 09/20/2012
11/05/2012 11/06/2012 11/20/2012
01/07/2013

MOTION REFERRED to Magistrate Judge Douglas E. Miller. 78 MOTION for Attorney Fees and Costs (jcow, ) (Entered: 08/13/2012)
98 Letter Addressed to the Civil Docket Section. (Malone, Ryan) (Entered: 08/20/2012)
99 OPINION AND ORDER − The court GRANTS Project Vote's Motion for Attorneys' Fees, and awards Project Vote $184,223.25 in attorneys' fees and $657.00 in costs. Signed by District Judge Rebecca Beach Smith and filed on 8/22/12. (jcow, ) (Entered: 08/22/2012)
100 MEMORANDUM FINAL ORDER − Defendants' Motion for Review is DENIED. All outstanding motions and issues having been disposed of on remand, the court closes this case. Signed by District Judge Rebecca Beach Smith and filed on 8/22/12. (jcow, ) (Entered: 08/22/2012)
101 CLERK'S JUDGMENT on decision of the court that Defendants' Motion for Review is DENIED. All outstanding motions and issues having been disposed of onremand, the court closes this case, entered by the Clerk and filed on 8/22/12. (jcow, ) (Entered: 08/22/2012)
102 NOTICE OF APPEAL as to 100 Memorandum Opinion by Donald Palmer. Filing fee $ 455, receipt number 0422−3205243. (Getchell, Earle) (Entered: 09/17/2012)
103 Transmission of Notice of Appeal to US Court of Appeals re 102 Notice of Appeal (All case opening forms, plus the transcript guidelines, may be obtained from the Fourth Circuit's website at www.ca4.uscourts.gov) (Attachments: # 1 notice of appeal)(jcow, ) (Entered: 09/17/2012)
104 USCA Case Number 12−2142; case manager: Tony Webb; USCA 4th Circuit for 102 Notice of Appeal filed by Donald Palmer. (jcow, ) (Entered: 09/19/2012)
105 NOTICE OF APPEAL as to 100 Memorandum Opinion by Elisa Long. Filing fee $ 455, receipt number 0422−3210109. (Rosen, Jeff) (Entered: 09/19/2012)
106 Transmission of Notice of Appeal to US Court of Appeals re 105 Notice of Appeal (All case opening forms, plus the transcript guidelines, may be obtained from the Fourth Circuit's website at www.ca4.uscourts.gov) (Attachments: # 1 notice of appeal)(jcow, ) (Entered: 09/19/2012)
107 USCA Case Number 12−2146; case manager: Tony Webb; USCA 4th Circuit for 105 Notice of Appeal filed by Elisa Long. (jcow, ) (Entered: 09/20/2012)
108 ORDER of USCA as to 102 Notice of Appeal filed by Donald Palmer, 105 Notice of Appeal filed by Elisa Long; The court consolidates Case No. 12−2142(L) and Case No. 12−2146. Entry of appearance forms and disclosure statements filed by counsel and parties to the lead case are deemed filed in the secondary case. (jcow, ) (Entered: 09/20/2012)
109 MOTION to Withdraw as Attorney by Project Vote/Voting for America, Inc.. (Ripa, Augustine) (Entered: 11/05/2012)
110 ORDER of USCA as to 105 Notice of Appeal filed by Elisa Long; The court grants the motion to withdraw from further representation on appeal. (jcow, ) (Entered: 11/06/2012)
111 ORDER granting 109 Motion to Withdraw as Attorney. Attorney Augustine Martin Ripa terminated as counsel for plaintiff Project Vote/Voting for America, Inc.. Signed by District Judge Rebecca Beach Smith and filed on 11/20/12. (jcow, ) (Entered: 11/20/2012)
112 ORDER of USCA as to 102 Notice of Appeal filed by Donald Palmer, 105 Notice of Appeal filed by Elisa Long; Upon consideration of the joint motion for a limited remand, the court grants the motion. The court remands these cases to the district court for the limited purpose of permitting the district court to consider entry of a consent decree based upon settlement negotiations.The parties shall file a status report on February 4, 2013 and every 30 days thereafter on the status of the case. The parties shall immediately notify this court in writing of any action taken by the district court. (jcow, ) (Entered: 01/08/2013)

Case: 2:10-cv-75 As of: 06/01/2013 10:05 PM EDT 11 of 11

01/24/2013 01/30/2013
01/31/2013 01/31/2013

113 SETTLEMENT AGREEMENT Proposed Consent Decree by Donald Palmer. (Attachments: # 1 Exhibit Order Granting Limited Remand)(Lief, Joshua) (Entered: 01/24/2013)
114 CONSENT DECREE − it is hereby ORDERED, ADJUDGED and DECREED that: 1. Defendant Long shall maintain for at least 2 years and shall make available for public inspection and, where available, photocopying at a reasonable cost, completed voter registration applications with the social security numbers redacted.2. Defendant Palmer shall adopt guidelines designed to promote compliance withthis Consent Decree throughout the Commonwealth of Virginia. 3. Notwithstanding the public disclosure provisions of the National VoterRegistration Act, Defendants, in addition to redacting or authorizing the redaction of social security numbers, are authorized to redact or give guidance authorizing the redaction, of the residence street address of any individual that provides a post office box address in lieu of his street address as provided for by Va. Code §§ 24.2−418.B and −444(C)(ii), as those sections are codified at the time of this order. Signed by Chief U.S. District Judge Rebecca Beach Smith and filed on 1/30/13. (jcow, ) (Entered: 01/30/2013)
115 ORDER of USCA as to 102 Notice of Appeal filed by Donald Palmer, 105 Notice of Appeal filed by Elisa Long, dismissing appeal upon such terms as have been agreed to by the parties,pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure. (mwin, ) (Entered: 02/01/2013)
116 USCA Mandate re 102 Notice of Appeal, 105 Notice of Appeal: This court's order dismissing this appeal pursuant to Local Rule 42(b) takeseffect today.This constitutes the formal mandate of this court issued pursuant to Rule41(a) of the Federal Rules of Appellate Procedure. (mwin, ) (Entered: 02/01/2013)