Common Cause/N.Y. v. Brehm

• Decision Date: 30 September 2018
• Docket Number: 17-CV-6770 (AJN)
• Citation: 344 F.Supp.3d 542
• Parties: COMMON CAUSE/NEW YORK, as an Organization and on Behalf of its Members, Plaintiff, v. Robert A. BREHM, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

344 F.Supp.3d 542

COMMON CAUSE/NEW YORK, as an Organization and on Behalf of its Members, Plaintiff,

v.Robert A. BREHM, et al., Defendants.

17-CV-6770 (AJN)

United States District Court, S.D. New York.

Signed September 30, 2018

Ezra D. Rosenberg, John Powers, Pro Hac Vice, Lawyers Committee for Civil Rights Under Law, Washington, DC, Jackson Chin, Neil A. Steiner, Dechert, LLP, Jose-Luis Perez, Joanna Elise Cuevas Ingram, New York, NY, for Plaintiff.

Brian Lee Quail, William J. McCann, Jr., New York State Board of Elections, Albany, NY, Nicholas Robert Cartagena, Lonstein Law Office P.C., Ellenville, NY, for Defendants.

OPINION & ORDER

ALISON J. NATHAN, District Judge:

Plaintiff Common Cause/New York ("Common Cause") brings this action against the New York State Board of Elections ("BOE"), its Co-Executive Directors, and its Commissioners seeking declaratory and injunctive relief to redress the State of New York's alleged violations of the National Voter Registration Act of 1993 (the "NVRA"), 52 U.S.C. § 20501 et seq.

On November 17, 2017, Defendants moved to dismiss the complaint in this case. Dkt. No. 36. For the following reasons, Defendants' motion is GRANTED in part and DENIED in part.

I. Background

On a Rule 12(b)(6) motion, a court must take the facts alleged in the complaint as true and draw all reasonable inferences in plaintiff's favor. See Gatt Commc'ns, Inc. v. PMC Assocs., L.L.C. , 711 F.3d 68, 74 (2d Cir. 2013). The Court accordingly draws the following statement of facts from the complaint.

A. The Parties

Plaintiff Common Cause is the New York chapter of the 501(c)(4) nonprofit Common Cause. Complaint ¶ 12. Common Cause represents itself as a "nonpartisan grassroots organization dedicated to upholding the core values of American democracy" that "has committed and continues to commit time and personnel to conducting voter registration, voter assistance, election protection, and to ensuring that eligible citizens remain registered to vote in New York State." Complaint ¶ 12. Common Cause has "more than 800,000 members in 50 states plus the District of Columbia" and "more than 70,000 activists and members reside in New York State, which includes more than 25,000 activists and members in New York City." Complaint ¶ 12.

Plaintiff brings this action against various individuals in their official capacities as co-executive directors, co-chairs, and commissioners of the New York State Board of Elections. According to Plaintiff, the BOE is "the state entity responsible for overseeing voter registration and conducting elections in New York State," while the Co-Executive Director Defendants are "the Co-Chief Elections Officials responsible for ensuring New York's compliance with the NVRA." Complaint ¶ 1 (citing N.Y. Elec. Law § 3-102 ); id. ¶¶ 13–19.

B. The National Voter Registration Act¹

This action arises out of New York State's alleged violations of the National Voter Registration Act ("NVRA"). Plaintiff represents that the NVRA was adopted by Congress to increase the number of eligible citizens who register to vote and to ensure that accurate voter registration rolls were maintained. Complaint ¶ 2. Section 8 of the NVRA ("Section 8") addresses the procedures a state must follow before it may remove an eligible voter from the official list of registered voters. Complaint ¶ 3; 52 U.S.C. § 20507. In relevant part, Section 8 provides that a state may not remove a registered voter from the official list of registered voters based on the belief that a voter has changed residence unless (1) the voter confirms in writing that he or she has moved to a new jurisdiction or (2) the voter has failed to respond to a notice seeking confirmation that the voter continues to reside in the jurisdiction and the voter fails to vote in two consecutive general elections for federal office. Complaint ¶ 3; 52 U.S.C. § 20507(d). New York is subject to the requirements of the NVRA. Complaint ¶ 39.

C. New York Election Law

Plaintiff alleges, and New York Election Law provides, that if mail sent to a voter is returned as undeliverable, or if the postal service receives notice that a voter has moved without leaving a forwarding address, the local board of elections sends a confirmation notice to the voter asking the voter whether he or she continues to reside in the jurisdiction. Complaint ¶ 4 (citing N.Y. Elec. Law § 5-712(1) ). As soon as a voter is sent a confirmation notice, he or she is moved to "inactive" status. Complaint ¶ 4 (citing N.Y. Elec. Law §§ 5-213(1), 5-712(5) ). According to the amended complaint, voters may be moved to inactive status although they are still eligible to vote and although they have never moved. Complaint ¶ 32.

When a voter is moved to "inactive" status, two consequences follow. First, an inactive voter's name "will not appear in the official poll book at the voting precinct on Election Day." Complaint ¶ 5. Plaintiff notes that New York is one of just two states that follow this practice. See Complaint ¶ 5 & Ex. C at 2. Instead, the only lists containing "inactive" voters are maintained separately by the BOE. See Complaint ¶ 34. Second, an " ‘inactive’ voter will be unable to vote using a regular ballot" and will be given an affidavit ballot instead. Complaint ¶¶ 5–6; see also N.Y. Elec. Law §§ 5-213, 8-302(3)(e)(ii) ); 9 C.R.R.-N.Y. § 6217.9(2).

Plaintiff alleges that (1) the removal of an inactive voter's name from the "official poll book at the voting precinct" and (2) the allowance that inactive voters may only vote by affidavit ballot amount to the "functional equivalent" of "remov[al] from the voter registration list" or "de facto removal" from the same. Complaint ¶¶ 5, 29. They allege this removal constitutes a violation of the NVRA because it occurs without the procedures required by Section 8. Complaint ¶ 53.

D. New York State's Application of its Election Law

Plaintiff also alleges that New York violates the NVRA in its application of the above-described election laws. Plaintiff alleges that application of these laws further limits "inactive" voters' access to the polls, again resulting in "de facto removal." Complaint ¶ 29. First, Plaintiff's experience, through the calls it receives on its nonpartisan Election Protection hotline, is that "inactive" voters are "routinely told by poll workers that they are not registered to vote." Complaint ¶ 6. Plaintiff further alleges that "voters whose names are not in the official poll book are not even offered a ballot"—or that affidavit ballots are offered "only at a voter's insistence." Complaint ¶ 6. Poll workers generally are not trained or informed that "inactive" voters are eligible to vote or that there is a separate list maintained by the BOE with a list of "inactive" voters. Complaint ¶ 34. With respect to the affidavit ballot allowance, Plaintiff alleges that voters offered affidavit ballots "often choose to leave the polling precinct without casting the election ballot." Complaint ¶ 6. Of those who do cast affidavit ballots, many are nonetheless "disenfranchised," as Plaintiff alleges that "the majority of affidavit ballots cast by New Yorkers in each election are not counted." Complaint ¶ 6.

As a final matter, the Complaint contends that New York State's voting laws have "pernicious" overall effects on "low-income" and "minority" voters and voters who move locally. Complaint ¶ 7–9. According to the Complaint, New York State's "systemic" violations of Section 8 "contribute to voter registration and turnout ‘gaps’ reflecting a disparate impact on minority New York voters" and on "low-income New York citizens." Complaint ¶¶ 7–9. The Complaint further alleges that New York's voting laws have "a particularly pernicious effect" on voters who move locally but who nonetheless may not be permitted to vote at their former polling places. Complaint ¶ 36.

E. Harm to Plaintiff Common Cause

Plaintiff Common Cause alleges that it has been harmed by New York State's election law because it has "diverted resources from its efforts to register and mobilize voters" in order to (1) assist voters "who are confused about their ‘inactive’ status and have been adversely impacted by New York's list maintenance procedures," Complaint ¶ 46; (2) respond to complaints from voters who reported to the correct polling place or who believed they were registered to vote but who did not appear in the poll ledger, Complaint ¶¶ 47, 49; and (3) testify at hearings, conduct press conferences, and discuss list maintenance procedure issues with the BOE, Complaint ¶ 50. Further, New York election law has allegedly required "[p]ost-election follow-up work caused by responding to [voter] complaints." Complaint ¶ 48.

F. Procedural Background

The NVRA creates a private right of action for "a person who is aggrieved by a violation" of the NVRA. 52 U.S.C. § 20510(b)(1). Prior to bringing an action to enforce the NVRA, the aggrieved person must give written notice to the "chief election official of the State" to identify the violation(s) and to provide the State with an opportunity to cure the violation(s) prior to the commencement of an action. Id. On November 2, 2016, Plaintiff sent a letter to Defendants notifying them "that the procedures for processing ‘inactive’ voters at polling places, as applied by your office and election officials, violate Section 8 of the [NVRA]." See Complaint, Ex. C. According to the complaint, the violations were not remedied by the BOE. Complaint ¶ 41.

Plaintiff filed its complaint on September 6, 2017. Dkt. No. 1. On November 17, 2017, Defendants moved to dismiss the complaint. Dkt. No. 36. On December 22, 2017, Plaintiff filed an opposition to Defendants' motion. Dkt. No. 45. On January 12, 2018, Defendants filed a reply in support of their motion to dismiss. Dkt. No. 51. On June 19, 2018, the Court issued an order stating that each party could submit a brief explaining if and how the Supreme Court's recent opinion in Husted v. A. Philip Randolph Institute , ––– U.S. ––––,...