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League of Women Voters of Arizona v. Reagan

United States District Court, D. Arizona

September 18, 2018

League of Women Voters of Arizona, et al., Plaintiffs,
Michele Reagan, Defendant.


          James A. Teilbrorg Senior United States District Judge

         Pending before the Court is Plaintiffs' Motion for Preliminary Injunction (Doc. 5).[1] The Court held a preliminary injunction hearing (“Hearing”) on September 12, 2018 and took this matter under advisement. This Order states the Court's findings of fact and conclusion of law.

         I. BACKGROUND

         Plaintiffs League of Women Voters of Arizona, Mi Familia Vota Education Fund, and Promise Arizona (individually and collectively, “Plaintiffs”) bring this action against Defendant Michele Reagan (“Defendant”), in her official capacity as Secretary of State for the State of Arizona, under Section 5 of the National Voter Registration Act (“NVRA”). 52 U.S.C. § 20504 (“Section 5”). On August 18, 2018, Plaintiffs filed suit against Defendant (“Complaint, ” Doc. 1) and filed the pending Motion for Preliminary Injunction (Doc. 5). Pursuant to the Court's accelerated briefing schedule in this matter, Defendant filed a timely Response (Doc. 22) on August 31, 2018. Plaintiffs then filed a Reply (Doc. 25) on September 5, 2018.

         A. Procedural Background

         On November 14, 2017, Counsel for Plaintiffs sent a letter (Doc. 1-1 at 2-16) to Defendant notifying Defendant, the Arizona Department of Transportation (“ADOT”), and related state agencies of alleged NVRA violations. (Doc. 5 at 1). Plaintiffs' November 2017 letter triggered the NVRA's 90-day notice period for Defendant to cure the alleged violations, after which, Plaintiffs stated, they “will have no alternative but to initiate litigation[.]” (Doc. 1-1 at 16; see also 52 U.S.C. § 20510(b)(2)). The 90-day period expired on February 12, 2018 without Defendant taking remedial actions acceptable to Plaintiffs, and without Plaintiffs following through with their promise to “initiate litigation”-until six months later. (Doc. 28-1 ¶¶ 34-35).[2]

         B. NVRA

         Enacted in 1995, the NVRA sets out to “establish procedures that will increase the number of eligible citizens who register to vote” in federal elections, “enhance[] the participation of eligible citizens as voters” in federal elections, “protect the integrity of the electoral process, ” and “ensure that accurate and current voter registration rolls are maintained.” 52 U.S.C. § 20501(b). “These purposes counterpose two general, sometimes conflicting, mandates: To expand and simplify voter registration processes so that more individuals register and participate in federal elections, while simultaneously ensuring that voter lists include only eligible . . . voters.” Ariz. Democratic Party v. Reagan, No. CV-16-03618-PHX-SPL, 2016 WL 6523427, at *12 (D. Ariz. Nov. 3, 2016) (quoting Common Cause of Colo. v. Buescher, 750 F.Supp.2d 1259, 1274 (D. Colo. 2010)).

         With regard to change of address notifications, Section 5 of the NVRA provides, in pertinent part:

Any change of address form submitted in accordance with State law for purposes of a State motor vehicle driver's license shall serve as notification of change of address for voter registration with respect to elections for Federal office for the registrant involved unless the registrant states on the form that the change of address is not for voter registration purposes.

52 U.S.C. § 20504(d) (emphasis added).

         With regard to new driver's license applications, Section 5 of the NVRA similarly provides that “[e]ach State motor vehicle driver's license application (including any renewal application) submitted to the appropriate State motor vehicle authority under State law shall serve as an application for voter registration with respect to elections for Federal office unless the applicant fails to sign the voter registration application.” 52 U.S.C. § 20504(a)(1) (emphasis added). Any such application “shall be considered as updating any previous voter registration by the applicant.” 52 U.S.C. § 20504(a)(2). The statute further provides that “[t]he voter registration application portion of an application for a State motor vehicle driver's license [] may not require any information that duplicates information required in the driver's license portion of the form.” 52 U.S.C. § 20504(c)(2)(A).

         C. MVD Forms

         Among other issues identified in Plaintiffs' November 2017 letter, Plaintiffs allege that ADOT's Motor Vehicle Division (“MVD”) uses forms that require a user to “opt-in, ” rather than “opt-out” of updating their voter registration address during a driver's license application, renewal, or change-of-address transaction with MVD (“Covered Transaction”). (Doc. 5 at 6-7).

         1. Written Forms

         Defendant provides that MVD forms “for the past twenty-three (23) years”-ever since the NVRA was enacted-“for in-person written applications contained a box for the applicant to check if an applicant wanted to have [her] voting registration addresses updated.” (Doc. 22 at 3). From November 2016 to approximately February 2018, the yes/no question was phrased as follows: “Are you a United States citizen who wishes to register to vote or update your existing voter registration?” (Doc. 22 at 3). The written form used from February 2018 to present asks the question similarly with the same yes/no checkbox response: “Do you wish to register to vote or update your existing voter registration AND are you a U.S. citizen?” (Id.) (emphasis in original). Regardless of whether the form is for a new driver license or state identification application or renewal, MVD forms consistently phrase the voter registration question in a yes/no format. (Plaintiffs' Exhibits 3-5). Plaintiffs argue that the current MVD forms require an applicant to opt-in to updating her voter registration address by selecting “yes, ” as opposed to updating by default unless an applicant affirmatively checks “no.”

         2. Online Forms

         Defendant provides that MVD launched an online form for an applicant to amend her MVD address in 1999; four years after the NVRA was enacted. (Doc. 22 at 4). Online forms-utilized for the majority of Covered Transactions since November 2016-contain a message at the bottom of the page confirming a successful MVD change-of-address, which states that applicants “can also register to vote or update your voter registration” by toggling a “Register to Vote” button. (Doc. 28-1 ¶¶ 20-22; Plaintiffs' Exhibit 7 at PLTS0040). Online, an applicant must effectively opt-in to updating her voter registration information at the end of the MVD change-of-address process by manually toggling the “Register to Vote” button, instead of automatically having the new address information used for voting purposes. (Id.). The “Register to Vote” button triggers a new form in the same window, which requires a user to input minimal, additional information and verify the new address information that automatically populates into the applicable field to update an applicant's voter registration. (Plaintiffs' Exhibit 7 at PLTS0041-53).

         Unless an applicant selects “Yes” to update her voter registration via a written form or completed the “Register to Vote” option in an online transaction, Defendant does not automatically update an individual's voter registration address to match her MVD address. (Doc. 28-1 ¶¶ 23-24).

         D. Potential Election Impact

         Defendant provided at the Hearing that 488, 100 individuals updated their MVD address since November 9, 2016. (Doc. 26-1 ¶ 23; Hearing Transcript (“Tr.”) at 31:16). Of those, Defendant identified approximately 384, 000 transactions involving registered voters. (Doc. 26-1 ¶ 24; Tr. at 60:19). MVD does not maintain records as to whether an individual changed her voter registration address at the same time. (Doc. 26-1 ¶ 24; Tr. at 31:8). Under Arizona's precinct-based voting system, a voter who changed residences since the last election is required to vote in the polling location associated with her new address. A.R.S. §§ 16-122, 16-135, 16-584(C).

         If an individual moves from one county to another and did not update her voter registration address with the appropriate County Recorder, the individual may not cast a valid ballot because she is not registered to vote in the proper county. (Doc. 28-1 ¶ 28). Plaintiffs are concerned that the process of not automatically updating voter registration addresses to match MVD address updates will cause voters to be registered at the incorrect address and then vote a ballot out-of-precinct (“OOP”), which would be invalid, in the upcoming election set for November 6, 2018. (Doc. 5 at 18). The number of ballots cast OOP and thus rejected has decreased steadily over recent elections from 14, 885 OOP ballots in 2008, to 10, 979 OOP ballots in 2012, to only 3, 970 OOP ...

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