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Response to Indiana's Motion to Dismiss

Response to Indiana's Motion to Dismiss

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Published by: jchristianadams on Aug 31, 2012
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10/31/2013

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1
IN THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF INDIANAINDIANAPOLIS DIVISION
JUDICIAL WATCH, INC., )and TRUE THE VOTE, ))
Plaintiffs
, ) Case No. 1:12-cv-800-WTL-TABv. ))J. BRADLEY KING,
et al.
))
 Defendants
. )___________________________________ )
PLAINTIFFS’ MEMORANDUM IN OPPOSITION TODEFENDANTS’ MOTION TO DISMISS
Judicial Watch, Inc., and True the Vote (“Plaintiffs”) respectfully submit thisMemorandum in Opposition to the Motion to Dismiss and Memorandum in Support of Defendants J. Bradley King, Trent Deckard, and Connie Lawson (“Defendants”).
I. INTRODUCTION.
Section 8 of the National Voter Registration Act (“NVRA”), 42 U.S.C. § 1973gg
et seq.
,requires States to make reasonable efforts to remove the names of ineligible voters from theirofficial lists of eligible voters by reason of the death of the registrant or a change in theregistrant’s residence. Section 8 of the NVRA also mandates that any such voter listmaintenance programs or activities be uniform, nondiscriminatory, and in compliance with theVoting Rights Act of 1965, among other important protections.In 2006, the State of Indiana entered into a consent decree with the U.S. Department of Justice that specifically required the State of Indiana to remedy its failure to comply with itsvoter list maintenance obligations under Section 8 of the NVRA. That consent decree expired in2009. According to data from the 2010 U.S. Decennial Census and data submitted by the State
Case 1:12-cv-00800-WTL-TAB Document 26 Filed 08/29/12 Page 1 of 23 PageID #: 88
 
2of Indiana to the U.S. Election Assistance Committee (“EAC”) regarding the 2010 generalelection, however,
 twelve
counties in the State of Indiana still had more registered voters on thevoter rolls than total voting age population in those counties as of 2010. When Defendants wereasked for records about the efforts they undertook in 2010 and 2011 to satisfy their voter listmaintenance obligations, they failed to produce any records or make records available forinspection.Judicial Watch, Inc., which has many members who are registered to vote in the State of Indiana, and True the Vote, which seeks to safeguard the integrity of elections by reviewingvoter rolls and filing citizen complaints, as well as through poll monitoring among otheractivities, subsequently initiated this action to compel Defendants’ compliance with Section 8 of the NVRA. Because Defendants received ample notice that they were in violation of Section 8of the NVRA and both Judicial Watch, Inc. and True the Vote have standing to remedyDefendants’ Section 8 violations, Defendants’ motion to dismiss should be denied.
II. STANDARD OF REVIEW.
The standard of review governing a Rule 12(b)(6) motion to dismiss is well established.While a complaint need not contain detailed factual allegations, it must plead “enough facts tostate a claim to relief that is plausible on its face.”
 Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570(2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows thecourt to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
 Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (
citing
 
Twombly,
550 U.S. at 556). The plausibilitystandard “asks for more than a sheer possibility that a defendant has acted unlawfully. Where acomplaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of 
Case 1:12-cv-00800-WTL-TAB Document 26 Filed 08/29/12 Page 2 of 23 PageID #: 89
 
3the line between possibility and plausibility of entitlement to relief.’”
 Id.
(internal citationsomitted) (
quoting
 
Twombly
, 550 U.S. at 557).In addition, when analyzing a complaint for failure to state a claim under Rule 12(b)(6), acourt must “tak[e] all well-pled allegations of the complaint as true and view[] them in the lightmost favorable to the plaintiff.”
 Arnett v. Webster 
, 658 F.3d 742, 751 (7th Cir. 2011) (
quoting
 
Santiago v. Walls
, 599 F.3d 749, 756 (7th Cir. 2010)). “[A] plaintiff’s claims should survivedismissal if relief could be granted under any set of facts that could be proved consistent with theallegations.”
 McMillan v. Collection Professionals, Inc
., 455 F.3d 754, 758 (7th Cir. 2006).
III. ARGUMENT.A. The State of Indiana Received Ample Notice of The Violation.
On February 6, 2012, Judicial Watch, Inc. sent Defendants a detailed, four-page, single-spaced letter notifying them that the State of Indiana was in violation of Section 8 of the NVRAand advising them that a lawsuit may be brought against them to ensure compliance with therequirements of the law. ECF No. 1 at ¶¶ 19, 21; ECF No. 21 at Exhibit 1;
see also
42 U.S.C. §1973gg-9(b)(1) and (2). The letter explained that, under Section 8 of then NVRA, the State of Indiana was required to undertake a uniform, nondiscriminatory voter registration listmaintenance program that complies with the Voting Rights Act. ECF No. 21 at Exhibit 1. Itfurther explained that Section 8 required the State to make a reasonable effort to remove thenames of ineligible voters from the official lists of eligible voters due to (A) “the death of theregistrant or (B) “a change in the residence of the registrant” to a place outside the jurisdiction inwhich he or she is registered.
 Id.
 The letter continued:Based on our review of 2010 census data and publicly available eligible voterlists, it appears that Indiana is failing to comply with the voter registration list
Case 1:12-cv-00800-WTL-TAB Document 26 Filed 08/29/12 Page 3 of 23 PageID #: 90

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