Am. Ass'n of People with Disabilities v. Herrera

Decision Date17 September 2008
Docket NumberNo. CIV 08-0702 JB/WDS.,CIV 08-0702 JB/WDS.
Citation580 F.Supp.2d 1195
PartiesAMERICAN ASSOCIATION OF PEPLE WITH DISABILITIES, Federation of Women's Clubs Overseas, Inc., New Mexico Public Interest Research Group Education Fund, and Southwest Organizing Project, Plaintiff, v. Mary HERRERA, in her capacity as Secretary of State, Defendant.
CourtU.S. District Court — District of New Mexico

Wendy R. Weiser, Myrna Perez, Brennan Center for Justice, Daniel F. Kolb, Anna Thea Bridge, David J. Lisson, Rosanna Garza Lipscomb, Sharon Katz, Davis Polk & Wardwell, New York, NY, Neal A. Potischman, Davis Polk & Wardwell, Menlo Park, CA, John W. Boyd, David H. Urias, Freedman Boyd Hollander Goldberg & Ives P.A., Albuquerque, NM, for Plaintiffs.

Scott Fuqua, Assistant Attorney General, Litigation Division, Santa Fe, NM, for Defendant.


JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Plaintiffs' Application for a Preliminary Injunction, filed August 11, 2008 (Doc. 14). The Court held hearings on August 19, 2008, and on August 29, 2008. The primary issue is whether the Plaintiffs have shown that they are entitled to an injunction prohibiting the state of New Mexico from enforcing its voter-registration laws. The analysis of that issue largely turns on these four sub-issues: (i) whether New Mexico's regulation of thirdparty voter-registration efforts is unconstitutional as a violation of the Plaintiffs' First Amendment rights; (ii) whether the New Mexico voter-registration laws are unconstitutionally vague or overbroad; (iii) whether New Mexico voter-registration laws violate the National Voter Registration Act ("NVRA"), 42 U.S.C. §§ 1973 to 1973gg-10; and (iv) whether the New Mexico laws violate the New Mexico Constitution. Because the Court concludes that the Plaintiffs have not shown that they are likely to succeed on the merits of any of their claims, and because the Plaintiffs have not show that they meet the other requirements for extending relief, the Court will deny the request for a preliminary injunction.


The Plaintiffs are four organizations that regularly participate in voter-registration activities in the nation and, for some of the Plaintiffs, in the State of New Mexico. In 2005, the New Mexico Legislature enacted legislation that restricted the voter-registration activities of third-party organizations. As a result of New Mexico's laws, the Plaintiffs have allegedly severely curtailed their voter registration activities in New Mexico, although other third-party organizations have continued to register voters in impressive numbers.

1. The Plaintiffs.

Each of the four Plaintiffs seeks, as part of its mission, to assist individuals in New Mexico and elsewhere to register to vote. They rely upon voter-registration drives not only to promote participation in American democracy and to enhance the political power of their members and the communities that they serve, but also to recruit new members who support the issues and causes in which they believe. The Plaintiffs rely principally on volunteers to conduct voter registration. In connection with prior elections, the Plaintiffs have registered substantial numbers of citizens to vote in New Mexico and elsewhere.

a. American Association of People With Disabilities.

According to United States Census data, there are over 300,000 voting-age people with disabilities residing in New Mexico. Only 37.9% of those individuals voted in 2000. See Affidavit of James Dickson ¶ 29, at 10 (executed June 10, 2008) (Dickson Aff.); Declaration of Neal A. Potischman in Support of Plaintiffs' August 2008 Application for a Preliminary Injunction, ¶ 7, at 2 (filed August 11, 2008) ("Potischman Decl.") (Doc. 15-2).

The American Association of People With Disabilities ("AAPD") is a nonpartisan advocacy organization dedicated to ensuring the economic self-sufficiency and increasing the political power of the more than fifty-six million Americans with disabilities. See Dickson Aff. ¶ 3, at 1. AAPD has approximately 86,500 active and inactive individual members nationwide, including in New Mexico. See Dickson Aff. ¶ 4, at 1. AAPD registers its members to vote by communicating with them directly. See id. ¶ 9. at 3.

In addition, AAPD runs large-scale voter-registration programs through coalitions with state-based disability organizations. See id. AAPD encourages its members and coalition member groups to focus their voter-registration message on political issues that are central to that particular group's constituency, such as lobbying for accessible housing or audible traffic lights for the blind. See id. ¶¶ 5, 15-16 & 20, at 1, 4-6. It is unclear whether AAPD has registered voters in New Mexico. At least, the Plaintiffs were not able cite a specific instance of AAPD registering voters in New Mexico. See Transcript of August 29, 2008 Hearing ("Aug. 29 Tr.") at 26:6-21 (Urias) (Doc. 47).

b. Federation of Women's Clubs Overseas, Inc.

The Federation of Women's Clubs Overseas, Inc. ("FAWCO") is an international network of seventy-eight independent American women's organizations located in thirty-nine countries. See Affidavit of Lucy Stensland Laederich ¶ 6, at 1 (executed June 24, 2008); Potischman Decl. ¶ 8, at 2. FAWCO serves as an informational resource for its member organizations, providing support for American women abroad. See id. ¶ 9, at 2. FAWCO assists its member organizations in registering their own members to vote and in conducting voter-registration drives. See id. ¶¶ 10-11, at 2-3.

The members of FAWCO's constituent organizations typically assist Americans abroad to vote by volunteering to help them to fill out the Federal Postcard Application Card ("FPAC"), which states must accept pursuant to the Uniformed and Overseas Citizens Absentee Voting Act ("UOCAVA"). See id. ¶ 12, at 4. FAWCO frequently addresses issues of importance to the expatriate community while conducting voter-registration drives at locations that Americans living abroad are known to frequent. See id. ¶¶ 11, 18, at 3, 6. Before the Legislature enacted New Mexico's voter-registration law, FAWCO helped to register voters from all fifty states, including from New Mexico. See id. ¶ 20, at 7.

c. New Mexico Public Research Group Education Fund.

The New Mexico Public Interest Research Group Educational Fund ("NMPIRG Education Fund") is a nonpartisan, nonprofit organization that seeks to provide a voice on behalf of the New Mexico public interest, as opposed to special interests. See Affidavit of Katryn E. Fraher ¶¶ 2, 5, at 1-2 (executed June 26, 2008)("Fraher Aff."); Potischman Decl. ¶ 3, at 2. The NMPIRG Education Fund and its sister organization, the New Mexico Public Interest Research Group ("NMPIRG"), both conduct a series of issue-oriented campaigns in which students at the University of New Mexico in Albuquerque, New Mexico participate. See Fraher Aff. ¶ 2, at 1. One of the campaigns conducted by the NMPIRG Education Fund is the New Mexico Voters Project, a nonpartisan voter-registration campaign organized by the Student PIRGs, a national federation of the Student PIRG organizations in various states. See id. ¶ 11, at 4.

The Plaintiffs have represented that since 2004, Students for NMPIRG is the sole organization that has conducted voter registration for the NMPIRG Education Fund. See id. ¶ 4, at 1; Affidavit of Jamison Tessneer ¶ 6, at 2 (executed June 30, 2008)("Tessneer Aff."); Potischman Decl. ¶ 4, at 2. They have also represented that as part of the New Voters Project, Students for NMPIRG runs voter-registration drives that student volunteers conduct. See Fraher Aff. ¶¶ 9, 11, at 3-4. Students for NMPIRG explain facts about the voting process and why it is important to vote. See id. ¶¶ 7-8, 12-14, at 2-5. Students for NMPIRG also tells prospective voters about their various issue-oriented campaigns to get them to volunteer for, and to join the organization. See id. At the hearing on August 19, 2008, however, the Plaintiffs clarified that there is no formal organization called "Students for NMPIRG." See Tr. 206: 22-207: 14. (Boyd). Students participate in PIRG voter registration activity, but not through any organization called "Students for NMPIRG." See id. (Boyd).

d. SouthWest Organizing Project.

SouthWest Organizing Project ("SWOP") is a nonpartisan organization dedicated to empowering disenfranchised communities in New Mexico—primarily Latinos and other people of color, lowincome communities, and young people—to realize racial and gender equality and social and economic justice. See Affidavit of Robert Rodriguez ¶ 4, at 1 (executed June 20, 2008)("Rodriguez Aff."); Potischman Decl. ¶ 2, at 2. SWOP has approximately 600 members across New Mexico. See Rodriguez Aff. ¶ 3, at 1. As part of its mission, SWOP undertakes large-scale volunteer-driven efforts to register New Mexico voters and has registered 30,000 New Mexico voters since 1983. See id. ¶¶ 4, 7-10, at 1-3. As part of past voter-registration efforts, SWOP employees and volunteers distributed nonpartisan educational materials, discussed the importance of voting, discussed SWOP's views on controversies at issue in the election, and enlisted new SWOP members. See id. ¶¶ 14-19, at 3-5.

In advance of the 2004 presidential election, SWOP registered approximately 5,000 people to vote in New Mexico. See id. ¶ 9, at 2. SWOP had difficulty obtaining forms in 2004, the year before the Legislature passed § 1-4-49. See Rodriguez Aff. ¶ 33, at 10.

2. Voter and Voter Registration Fraud.

The desire to make a positive impact on the civil and political landscape usually motivates the efforts of third-party voter registration agents such as the Plaintiffs. When organizations such as the Plaintiffs fail in their goal of increasing voter participation, that failure often has a deleterious impact on participatory democracy. Unfortunately, the...

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