Vote v. Hosemann

Decision Date29 August 2014
Docket NumberC.A. NO. 3:14-CV-532-NFA
PartiesTRUE THE VOTE, JANE COLN, BRANDIE CORRERO, CHAD HIGDON, JENNIFER HIGDON, GENE HOPKINS, FREDERICK LEE JENKINS, TAVISH KELLY, DONNA KNEZEVICH, JOSEPH KNEZEVICH, DORIS LEE, LAUREN LYNCH, NORMA MACKEY, ROY NICHOLSON, MARK PATRICK, JULIE PATRICK, PAUL PATRICK, DAVID PHILLEY, GRANT SOWELL, SYBIL TRIBBLE, LAURA VANOVERSCHELDE, and ELAINE VECHORIK, Plaintiffs, v. THE HONORABLE DELBERT HOSEMANN, in his official capacity as Secretary of State for the State of Mississippi, THE REPUBLICAN PARTY OF MISSISSIPPI, COPIAH COUNTY, MISSISSIPPI ELECTION COMMISSION, HINDS COUNTY, MISSISSIPPI ELECTION COMMISSION, JEFFERSON DAVIS COUNTY, MISSISSIPPI ELECTION COMMISSION, LAUDERDALE COUNTY, MISSISSIPPI ELECTION COMMISSION, LEAKE COUNTY, MISSISSIPPI ELECTION COMMISSION, MADISON COUNTY, MISSISSIPPI ELECTION COMMISSION, RANKIN COUNTY, MISSISSIPPI ELECTION COMMISSION, SIMPSON COUNTY, MISSISSIPPI ELECTION COMMISSION, and YAZOO COUNTY, MISSISSIPPI ELECTION COMMISSION, Defendants.
CourtUnited States District Courts. 5th Circuit. Southern District of Mississippi

TRUE THE VOTE, JANE COLN, BRANDIE CORRERO, CHAD HIGDON,
JENNIFER HIGDON, GENE HOPKINS, FREDERICK LEE JENKINS,
TAVISH KELLY, DONNA KNEZEVICH, JOSEPH KNEZEVICH, DORIS LEE,
LAUREN LYNCH, NORMA MACKEY, ROY NICHOLSON, MARK PATRICK,
JULIE PATRICK, PAUL PATRICK, DAVID PHILLEY, GRANT SOWELL,
SYBIL TRIBBLE, LAURA VANOVERSCHELDE, and ELAINE VECHORIK, Plaintiffs,
v.
THE HONORABLE DELBERT HOSEMANN, in his official capacity as Secretary
of State for the State of Mississippi, THE REPUBLICAN PARTY OF MISSISSIPPI,
COPIAH COUNTY, MISSISSIPPI ELECTION COMMISSION, HINDS COUNTY,
MISSISSIPPI ELECTION COMMISSION, JEFFERSON DAVIS COUNTY, MISSISSIPPI
ELECTION COMMISSION, LAUDERDALE COUNTY, MISSISSIPPI ELECTION COMMISSION,
LEAKE COUNTY, MISSISSIPPI ELECTION COMMISSION, MADISON COUNTY, MISSISSIPPI
ELECTION COMMISSION, RANKIN COUNTY, MISSISSIPPI ELECTION COMMISSION,
SIMPSON COUNTY, MISSISSIPPI ELECTION COMMISSION, and YAZOO COUNTY,
MISSISSIPPI ELECTION COMMISSION, Defendants.

C.A. NO. 3:14-CV-532-NFA

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI JACKSON DIVISION

August 29, 2014


MEMORANDUM AND ORDER

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TABLE OF CONTENTS

I. BACKGROUND...............................................9

A. The Primary and Primary Runoff Elections.....................9
B. Plaintiffs' Allegations and Evidence.........................10
C. Procedural Posture.......................................15

II. MOTIONS FOR SUMMARY JUDGMENT........................17

A. Summary Judgment Standard...............................17
B. Analysis................................................19
1. Have Plaintiffs Sued the Proper Defendants?.............21
a. Is the Republican Party a Proper Defendant?........21
b. Are the County Defendants Proper Defendants?......22
i. Mississippi's Registration and Election Oversight Structure and Procedure...........22
ii. Analysis................................26
c. Is Hosemann a Proper Defendant?.................28
2. Does Section 1973gg-9 Pose a Procedural Bar to Plaintiffs' Suit?...................................30
3. What Documents Do Plaintiffs Seek?...................37
4. Are Plaintiffs Entitled Under the NVRA to Inspect the Requested Documents?..............................39
a. Statutory Construction..........................39
i. Plain Meaning - Overall Principles...........39
ii. Statutory Context of the Public Disclosure Provision Within the NVRA................42
iii. Statutory Purpose of the NVRA.............43
iv. Context of the NVRA Public Disclosure Provision in Light of Other Federal and State Laws..............................46
b. Requested Documents..........................47
i. Voter Roll...............................47
ii. Poll Books..............................49
iii. Absentee Ballot Applications and Envelopes. . . 54
iv. Federal Post Card Applications..............57
5. Does the NVRA Preempt Mississippi Law?..............59

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a. Preemption Standard...........................60
b. Mississippi Law...............................62
c. Does the NVRA Require Disclosure of Unredacted Records?...........................63
i. Project Vote is Distinguishable..............64
ii. The NVRA Does Not Require Disclosure
of Unredacted Documents..................67
iii. Birthdates, Like Social Security Numbers, Are "Uniquely Sensitive."..................71
d. The NVRA Public Disclosure Provision Does Not Preempt Mississippi's Redaction Provisions.........78

III. PLAINTIFFS' PRELIMINARY INJUNCTION MOTION.............79

A. Preliminary Injunction Standard.............................79
B. Analysis................................................80
1. Substantial Likelihood of Success on the Merits........... 80
2. Irreparable Injury................................... 80
3. Balance of Hardships................................ 82
4. Disservice to the Public Interest........................ 82

IV. THE REPUBLICAN PARTY'S SANCTIONS MOTION..............84

A. Legal Standard..........................................84
B. Analysis................................................85

V. RULE 54(b) JUDGMENT......................................87

VI. CONCLUSION AND ORDER...................................88

MEMORANDUM AND ORDER

The Court in this case is required to construe the scope of the National Voter Registration Act ("NVRA"), 42 U.S.C. § 1973 et seq.,1 a federal law that has seldom

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generated litigation. A particular focal point of this case is the June 24, 2014 primary runoff election held to determine the Republican Party of Mississippi's candidate in the November 2014 U.S. Senate election. Plaintiffs2 state that they seek certain unredacted voting records from that election pursuant to the NVRA Public Disclosure

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Provision, 42 U.S.C. § 1973gg-6(i) ("Public Disclosure Provision"), in order to investigate potential irregularities or inaccuracies concerning the primary runoff election and possibly to raise a challenge to the outcome of that election. Defendants3 have refused some of Plaintiffs' requests citing multiple grounds, but primarily Defendants contend that Mississippi law requires redaction of certain personal voter registrant information from the records before they are publicly disclosed.

Before the Court are the following motions, each of which is ripe for consideration:

• Plaintiffs' Motion for Temporary Restraining Order [and Preliminary Injunction]4 [Doc. # 8] ("Preliminary Injunction Motion");5

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• Plaintiffs' Motion for Partial Summary Judgment [Docs. # 83 and # 84] ("Plaintiffs' Summary Judgment Motion");6

• Defendant Hosemann's Summary Judgment Request [Doc. # 114];7

• Defendant Copiah County's Motion for Summary Judgment [Doc. # 79] ("Copiah County's Motion");8

• Defendant Hinds County's Motion for Summary Judgment [Docs. # 80 and # 81] ("Hinds County's Motion");9

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• Defendant Jefferson Davis County's Motion for Summary Judgment [Doc. # 82] ("Jefferson Davis County's Motion");10

• Defendant Rankin County's Motion for Summary Judgment [Docs. # 85 and # 86] ("Rankin County's Motion");11

• Defendant Republican Party's Motion to Dismiss or, in the alternative, for Summary Judgment [Docs. # 87 and # 88] ("Republican Party's Summary Judgment Motion");12

• Defendant Lauderdale County's Motion for Summary Judgment [Doc. # 89] ("Lauderdale County's Motion");13

• Defendant Hosemann's Motion to Strike [Docs. # 116 and # 117].14

• Defendant Republican Party's Motion for Sanctions [Doc. # 67] ("Republican Party's Sanctions Motion");15

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The Court held a hearing on Plaintiffs' Preliminary Injunction Motion on July 24, 2014 (the "July 24th Hearing"). Plaintiffs and Defendants presented evidence and made legal arguments to the Court at that time.16 The parties have furnished additional evidence in support of their claims, defenses, and motions.17

Having considered all the parties' briefing, the parties' oral arguments at the July 24th Hearing, all evidence of record, and the applicable legal authorities, the Court grants summary judgment to each of the moving County Defendants and to Hosemann, grants in part and denies in part the Republican Party's Summary Judgment Motion, denies Plaintiffs' Summary Judgment and Preliminary Injunction Motions, denies the Republican Party's Sanctions Motion, and denies Defendant Hosemann's Motion to Strike. Plaintiffs' first two claims are dismissed with prejudice.

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I. BACKGROUND

A. The Primary and Primary Runoff Elections

On June 3, 2014, Defendant Republican Party conducted a primary election to determine the party's candidate for the November 2014 United States Senate election. The two highest vote-getters in the primary,18 incumbent U.S. Senator Thad Cochran ("Cochran") and State Senator Chris McDaniel ("McDaniel"), then participated in a primary runoff election three weeks later, on June 24, 2014.19 According to the Republican Party, Cochran was victorious in the runoff election, receiving approximately 7,600 more votes than McDaniel.20 The Republican Party officially certified Cochran as the primary winner on July 7, 2014, and submitted that information to the Mississippi Secretary of State, Defendant Delbert Hosemann.21 McDaniel continues to challenge the outcome of the primary runoff.22

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B. Plaintiffs' Allegations and Evidence

True the Vote characterizes itself as a "non-profit organization that works to protect the integrity of local, state, and federal elections."23 "True the Vote monitors elections for compliance with state and federal law and identifies instances of voting irregularities or possible fraud."24 True the Vote also "examines official lists of eligible voters and other voter registration data to verify their accuracy and currency . . . to protect the integrity of the electoral process and to ensure that accurate and current voter rolls are maintained by each state."25 True the Vote's President, Catherine Engelbrecht ("Engelbrecht"), testified that, as part of its mission, the organization trains volunteers to get involved in elections, researches the country's voter files to ensure their accuracy, and provides support to individuals...

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