IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION LINCOLN DAVIS, ) ) Plaintiff

, ) ) TENNESSEE DEMOCRATIC PARTY, ) ) Proposed Plaintiff, ) ) v. ) ) TRE HARGETT, Tennessee Secretary ) of State; and MARK GOINS, Tennessee ) Coordinator of Elections, each in their ) official capacities only. ) ) Defendants. ) ___________________________________ )

CASE NO. 2:12-cv-00023 Judge Sharp Magistrate Judge Knowles

BRIEF OF AMICI CURIAE JUDICIAL WATCH, INC. AND ALLIED EDUCATIONAL FOUNDATION SUPPORTING DEFENDANTS AND OPPOSING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION Judicial Watch, Inc. and the Allied Educational Foundation hereby respectfully submit this amici curiae brief in support of the Defendants and in opposition to Plaintiff Lincoln Davis and Proposed Plaintiff Tennessee Democratic Party (“Plaintiffs”) Motion for a Preliminary Injunction, filed on May 25, 2012.1 This brief is intended to address issues of federal election law raised by Plaintiffs, of which amici have knowledge and expertise.

1

This brief is filed concurrently with a Motion for Leave of Court to File an Amicus Curiae Brief. The grounds for the request for leave to file this brief are contained in the motion. No party or counsel for a party in the above-captioned case authored this brief in whole or in part, and no person other than the amici made a monetary contribution intended to fund the preparation and submission of this brief. 1 Case 2:12-cv-00023 Document 29 Filed 06/08/12 Page 1 of 15 PageID #: 431

INTRODUCTION The National Voter Registration Act of 1993 (“NVRA”), 42 U.S.C. § 1973gg et seq., reflects a careful compromise law designed to both increase lawful voter registration and to increase the integrity of elections by ensuring that voter rolls are accurate and well maintained. Similarly, the Help America Vote Act of 2002 (“HAVA”), 42 U.S.C. § 15301 et seq., was another carefully brokered Congressional balancing act designed to both increase lawful access to the ballot box and to prevent fraud by increasing election integrity. To make sure that states could remove names from voter rolls without constant fear of making a mistake and being sued, HAVA included a law requiring states to make provisional ballots available. This provisional ballot law ensures that anyone who claims to be eligible to vote in a precinct can submit their vote when they show up at the polls even if their name is not on the registered voter list. Congress designed this statutory provision to ensure states could conduct reasonable voter list maintenance (under both their HAVA and NVRA obligations) without fear of

disenfranchisement lawsuits if they make one mistake out of millions of registrations. Provisional voting is the remedy Congress intended for remedying voter list mistakes. Plaintiffs, however, appear to prefer that States stop trying to undertake list maintenance efforts altogether. Plaintiffs’ attempt to prevent Tennessee from maintaining accurate voter registration rolls has the potential to worsen an already significant nationwide problem. Nearly 20 years after passage of the NVRA and 10 years after HAVA, the voter rolls in many states remain rife with errors and are often highly inaccurate. According to research conducted by the Center for the States of the non-partisan Pew Charitable Trusts (“Pew”), inaccurate voter registrations are rampant. Pew’s independent research, published in February 2012, indicates that approximately 24 million active voter registrations throughout the United States – or one out of every eight 2 Case 2:12-cv-00023 Document 29 Filed 06/08/12 Page 2 of 15 PageID #: 432

registrations – are either no longer valid or are significantly inaccurate.2 Pew also found that more than 1.8 million deceased individuals are listed as active voters on registration lists nationwide, and that approximately 2.75 million people have active registrations in more than one state. Id. Part of the reason NVRA and HAVA have failed to achieve accurate and reliable voter registration rolls is the existence of lawsuits like the present one. At stake in this case is no less than the issue of whether States will be able to maintain accurate voter registration lists pursuant to the NVRA and HAVA without fear of lawsuits that disregard the intent and purpose of these laws. Plaintiffs allege that Tennessee improperly removed approximately six (6) names from the voter rolls, an oversight which has since been corrected. Plaintiffs nonetheless ask for a needlessly drastic preliminary injunction to address a minor clerical mistake that by law is remedied by the availability of a provisional ballot and in fact has already been remedied by the appropriate election officials. If this Court rules in favor of Plaintiffs, it could have a chilling effect on other States’ efforts to prevent election fraud by performing ordinary voter list maintenance. In addition, it would eviscerate Congress’ careful balancing act in passing the NVRA and HAVA, which were intended to both increase lawful voter access and increase the integrity of elections. 1. Plaintiffs’ Requested Remedy Is Drastically Disproportionate to the Alleged Violation Plaintiffs appear to believe that the occurrence of any administrative error, no matter how small, in a States’ efforts to maintain accurate voter rolls constitutes the absence of safeguards

2

The Pew Center on the States, Inaccurate, Costly, and Inefficient: Evidence That America’s Voter Registration System Needs an Upgrade, p. 1 (February 2012), available at http://www.pewstates.org/uploadedFiles/PCS_Assets/2012/Pew_Upgrading_Voter_Registration. pdf (visited June 4, 2012). 3 Case 2:12-cv-00023 Document 29 Filed 06/08/12 Page 3 of 15 PageID #: 433

and a violation of voting rights. It does not. Neither HAVA nor the NVRA supports Plaintiffs’ conclusion. Their argument constitutes a dangerous invitation for this Court to drastically limit the important protections to election integrity crafted by Congress. Plaintiffs are asking for an immediate injunction forcing Tennessee to implement “state-level purging safeguards and to review county-level purging decisions for inaccuracies.” Plaintiffs’ Memorandum in Support of Motion for Preliminary Injunction (“Plaintiffs’ Memorandum”) at 2. disproportionate response. Tennessee has a voting-age population of over 4.8 million citizens.3 Plaintiffs can only allege with any evidentiary basis that Tennessee accidentally removed six (6) lawful registrants from the voting rolls. Memorandum at 8. In other words, Tennessee voting official’s efforts to comply with the voter list maintenance provisions of the NVRA and HAVA had an established error rate of .000125, or approximately one one-thousandth of one percent. The error apparently affected people who own real estate in two jurisdictions in Tennessee, such as a regular home and a vacation home. Plaintiff Davis admits his name was accidentally removed from one voter list because he owns two homes, one in Pickett County and one in Fentress County. Second Amended Complaint at ¶¶ 5, 30-35. Tennessee allows its citizens to vote on certain municipal issues in each jurisdiction where they own real estate, although they may only vote for candidates for federal office in one jurisdiction. Because of this rule, a county election official who was trying to clean the rolls of duplicates (as required by NVRA and HAVA) saw Plaintiff Davis’ name on the rolls in two counties and apparently This is a grossly

3

See Election Assistance Commission, Report to the 112th Congress, June 30th, 2011, The Impact of the National Voter Registration Act of 1993 on the Administration of Elections for Federal Office 2009-2010, p. 25, available at http://www.eac.gov/assets/1/Documents/2010%20NVRA%20FINAL%20REPORT.pdf (visited June 4, 2012). 4 Case 2:12-cv-00023 Document 29 Filed 06/08/12 Page 4 of 15 PageID #: 434

believed he had moved. This error caused some small number of voters who own two houses in two different Tennessee jurisdictions to have their names removed from the rolls in one of those localities. Plaintiffs do not allege that the administrative error was motivated by any ill intent, discrimination, or deliberate effort to disenfranchise voters who own two homes. Plaintiffs’ position therefore demonstrates a near total disregard for the careful balancing of interests in modern voting laws, and nearly resembles a parody of historically reasonable arguments for protecting citizens against genuinely unlawful state denials of voting rights. Also importantly, Plaintiff Davis was not ultimately denied the right to vote in this case. Rather, his primary objection seems to be that he was inconvenienced. Despite his name not appearing on the rolls, Plaintiff Davis was offered the opportunity to vote by provisional ballot but he turned it down. Second Amended Complaint at ¶ 18. Plaintiff Davis’ pique does not constitute injury justifying the extraordinary step of an injunction limiting the State’s ability to ensure millions of regular Tennesseans have confidence in the integrity of elections. Plaintiffs complain about the hardship suffered by Plaintiff Davis, and speculate about what hardships might befall other citizens if the State of Tennessee is allowed to continue to do its job of ensuring voter rolls are accurate. Plaintiffs’ Memorandum at 2-4, 7, 11-12. However, Plaintiffs fail to express any concern over whether the voting registration system in Tennessee is serving the purpose for which it is intended, namely ensuring elections are fair, lawful, and conducted so that the results can be audited and verified after the fact. The purpose of voter registration is to ensure legitimacy in elections by guaranteeing every citizen gets one vote – but only one vote. Fraud prevention is a part of the reason for this policy, but as the U.S. Supreme

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Court has stated, ensuring the legitimacy of elections has an independent value unto itself. According to Justice Stevens, writing for the Court: Finally, the State contends that it has an interest in protecting public confidence “in the integrity and legitimacy of representative government.” Brief for State Respondents, 53. While that interest is closely related to the State’s interest in preventing voter fraud, public confidence in the integrity of the electoral process has independent significance, because it encourages citizen participation in the democratic process. As the Carter-Baker Report observed, the “‘electoral system cannot inspire public confidence if no safeguards exist to deter or detect fraud or to confirm the identity of voters.’” Crawford, v. Marion County Election Bd., 553 U.S. 181, 197 (2008). Thus, election integrity is an important State interest regardless of whether fraud has ever taken place in the history of U.S. elections, or whether it ever will. Tennessee’s efforts to maintain accurate voter rolls both deters fraud and inspire confidence that elections will be lawful. In Plaintiffs’ view, that goal is of minimal importance. Plaintiffs apparently take the position that if one voter has to expend additional effort to correct a mistake on a registration list, that effort is a greater harm to the public interest than millions of voters losing confidence that elections are being conducted fairly and turning away from participation in American public life. Amici respectfully disagree with Plaintiffs’ position, and urge this Court to do the same. 2. HAVA and NVRA Made Careful Compromises and Balanced Interests between Voter Access and Election Integrity, Which Plaintiffs Now Ask the Court to Undo The NVRA was enacted in 1993 “to establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office,” as well as to “protect the integrity of the electoral process” and “ensure that accurate and current voter registration rolls are maintained.” 42 U.S.C. § 1973gg(b)(1), (3)-(4). Congress passed HAVA in 2002 to

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simultaneously improve ballot access and expand election integrity measures.4 Plaintiffs focus exclusively on those provisions of the NVRA and HAVA that serve to safeguard the exercise of the right to vote, and discount or simply ignore corresponding provisions that require states to take efforts to protect against voter fraud. Congress struck a careful balance between those two objectives in the NVRA and HAVA. Plaintiffs’ reading of these statutes undermines Congress’ carefully constructed balance. Under Plaintiffs’ interpretation, Tennessee may not engage in voter list maintenance required by Congress unless it does so flawlessly. This interpretation would render the equally important mandates to protect against voter fraud virtually meaningless. A close examination of the NVRA and HAVA illustrates that both laws contained “companion provisions” designed to function together to protect the twin goals of voter access and ballot integrity. For instance, Section 7 of the NVRA, 42 U.S.C. § 1973gg-5, was passed to expand opportunities to register to vote by requiring states to allow citizens to register at public assistance agencies. Along with it, the provisions of Section 8 of the NVRA, 42 U.S.C. § 1973gg-6, were designed to increase the integrity of elections by requiring maintenance of registered voter rolls to ensure they are accurate. Section 8 is therefore the counterpart to Section 7. The two provisions represent a carefully crafted compromise by the U.S. Congress to increase both voter registration and the integrity of voter rolls. Section 302 of HAVA, 42 U.S.C. § 15482, expanded access to the ballot box with new rules guaranteeing the right to vote by provisional ballot for all U.S. citizens. The provisional ballot law of Section 302 requires all states to allow voters who claim they are lawfully
4

See 148 Cong. Rec. H7836, at H7852 (daily ed. October 10, 2002) (statement of Rep. Boehlert) (“This bill is a carefully constructed compromise. It expands the right to vote by requiring that states allow provisional voting. It includes commonsense measures to prevent fraud.”). 7 Case 2:12-cv-00023 Document 29 Filed 06/08/12 Page 7 of 15 PageID #: 437

registered eligible voters in a jurisdiction but who do not appear on the voter rolls to submit a provisional ballot to be counted once their eligibility is determined. Section 302 was designed to guarantee that no lawful voter would ever be turned away from the polls. As with Section 7 of the NVRA, Section 302 of HAVA was also passed along with a counterpart provision to ensure that the new rules allowing easier access to the ballot box did not also create easier opportunities for fraud. Section 303 of HAVA, 42 U.S.C. § 15483, serves as that counterpart. HAVA Section 303 instituted several provisions designed to ensure fairness and accountability in the conduct of elections. Several of these provisions created new

requirements designed to substantially expand states’ ability to maintain accurate voter rolls. These provisions included: (i) requiring States to create a single, computerized, state-wide official voter registration list (42 U.S.C. § 15483(a)(1)); (ii) requiring citizens to obtain or provide proof of identification prior to registering to vote (42 U.S.C. §§ 15483(a)(5), 15483(b)(2)(A)); (iii) requiring registrants to affirm they are U.S. citizens prior to registering to vote (42 U.S.C. § 15483(b)(4)(A)(i)); and (iv) requiring state election officials to compare voter registration data against driver’s license records (42 U.S.C. § 15483(a)(5)(B)(i)). In addition, several other HAVA Section 303 provisions merely reiterate and clarify states’ existing voter list maintenance obligations under Section 8 of the NVRA. This was done because Congress realized after the 2000 election that the requirement of NVRA Section 8 to maintain accurate voter registration lists was not being followed.5 Accordingly, with its 2002

5

148 Cong. Rec. S10488, at S10490 (daily ed. October 16, 2002) (statement of Senator Dodd) (“The authors of this bill found that voter rolls across the country are inaccurate or in very poor order, the condition in many jurisdictions, particularly the large jurisdictions, are in a state of crisis. Voter lists are swollen with the names of people who are no longer eligible to vote in that jurisdiction, are deceased or are disqualified from voting for another reason. It has been found that 650,000 in this country are registered in more than one State. As of October of 2002, 60,000 8 Case 2:12-cv-00023 Document 29 Filed 06/08/12 Page 8 of 15 PageID #: 438

HAVA legislation, Congress included language clarifying how and to what extent the states were required to perform the voter list maintenance activities that they were already obligated to perform under Section 8 of the NVRA. See 42 U.S.C. §§ 15483(a)(2)(A)(i), 15483(a)(2)(A)(ii) (citing 42 U.S.C. § 1973gg-6), and 42 U.S.C. §§ 15483(a)(4)(A) (citing the voter registration list removal requirements of 42 U.S.C. § 1973gg et seq.). The list maintenance provisions of Section 303 of HAVA merely clarify and elaborate on the States’ existing list maintenance obligations under Section 8 of the NVRA. One way in which HAVA clarifies the existing NVRA voter list maintenance obligations is by specifically requiring Tennessee to perform regular voter list maintenance in a manner that ensures that “duplicate names are eliminated from the computerized list.” 42 U.S.C. § 15483(a)(2)(B)(iii). Furthermore, when enacting HAVA, Congress realized that the NVRA lacked an adequate “fail-safe” provision to ensure that States were not put at risk of accusations of voter disenfranchisement simply by complying with their voter list maintenance obligations under Section 8 of the NVRA. This is the reason Congress added HAVA Section 302. The provisional ballot law of Section 302 therefore accomplished two things simultaneously – it ensured no American would be denied his lawful right to vote, and it ensured no state election official would be afraid of maintaining accurate voter lists by removing ineligible registrations. The legislative history demonstrates this: Voters who do not appear on a registration list must be allowed to cast a provisional ballot. Voters without proper identification are also allowed to vote provisionally, but no provisional ballot will be counted until it is properly verified as a legal vote under state law. . . I believe these meaningful reforms will go a long way to helping states clean up voter rolls, and thus clean-up elections. Will Rogers once said, “I love a dog. He does nothing for political reasons.” Our election laws should keep it that way. people were registered in Florida and at least one other state. In St. Louis County, some 30,000 people were registered to vote in the county and at least one other county in the State.”). 9 Case 2:12-cv-00023 Document 29 Filed 06/08/12 Page 9 of 15 PageID #: 439

148 Cong. Rec. S10488, at S10489 (daily ed. October 16, 2002) (statement of Senator Bond) (emphasis added). Senator Bond continued: The provisional ballot will be extended to those who arrive at the polls to find that their name does not appear on the register of voters. The statute states that the poll worker shall inform the voter of the right to vote by provisional ballot. That right, however, is extended to those who believe that they are registered to vote and are registered to vote in that particular jurisdiction. It is not the intent of the authors of this bill to extend the right to vote by provisional ballot to everyone who shows up at the polls and is not registered or for those who are not eligible to vote in the election. The intent is to provide protection to those who in fact registered but do not appear on the register because of an administrative mistake or oversight. 148 Cong. Rec. S10488, at S10491 (daily ed. October 16, 2002) (statement of Senator Bond) (emphasis added). It is therefore critical to recognize that the provisional ballot rule of Section 302 of HAVA constitutes the built-in statutory remedy for voter list maintenance errors that could occur when states attempt to comply with Section 8 of the NVRA or Section 303 of HAVA. This

“fail-safe” provisional ballot voting rule was the remedy that Congress intended for voter list maintenance errors, such as the one that occurred in this case. Plaintiffs’ approach is therefore directly contrary to the mandates of HAVA and the NVRA. Congress did not intend for courts to eliminate ballot integrity measures whenever fail-safe provisions do not work any more than it intended courts to eliminate the provisional ballot option in States that have done a poor job of maintaining accurate voter rolls. Plaintiffs also devote a substantial amount of effort to arguing that, because Tennessee Counties have been charged with certain list maintenance and safeguarding responsibilities, the State of Tennessee is therefore in violation of the law. Plaintiffs’ Memorandum at 4-7, 15-19. This is inaccurate. As interpreted by the Courts, states and counties often share responsibility for

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compliance with federal election law, particularly NVRA Section 8 voter list maintenance responsibilities. See United States v. Missouri, 535 F.3d 844, 849-850 (8th Cir. 2008) (“U.S. v. Missouri”); see also ACORN v. Scott, 2008 U.S. Dist. Lexis 101778 at 5-6, n1 (W.D. Mo. Dec. 17, 2008) (“The Eighth Circuit’s opinion in that case recognized that “Missouri could not be [held] responsible for enforcement of the NVRA against local election authorities,” even though local election authorities’ noncompliance was relevant to a determination of whether the State had fulfilled its own obligations under the NVRA to “conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists of eligible voters[.]””) (quoting U.S. v. Missouri, 535 F.3d at 847-848, 851.). In addition, since most of the voter list maintenance provisions of HAVA merely clarify those already present in the NVRA, it would make little sense for the laws to be interpreted in conflicting ways. The legislative history of HAVA confirms that Congress did not intend to alter the voter list maintenance obligations of Section 8 of the NVRA. HAVA’s imposition of a statewide voter list requirement was intended as an additional tool to ensure list accuracy and prevent fraud – not to make it more difficult to remove ineligible names: It is well documented that registration lists around the country are in disarray; they are bloated and contain the names of thousands of people that no longer belong on the list. In part, this is because we live in an increasingly mobile society. It is also because congress made it more difficult for localities to maintain clean lists when Motor Voter was passed. . . [HAVA] will not affect the obligation on the States to conduct list maintenance according to the provisions of the National Voter Registration Act. . . This legislation does not limit the circumstances under which States can remove names from voter lists. . . The requirement for a state-wide registration system will enhance the integrity of our election process, making it easier for citizens to vote and have their ballots counted, while clearing ineligible and false registrations from the voter rolls. 148 Cong. Rec. S10488, at S10492 (daily ed. October 16, 2002) (statement of Senator Bond) (emphasis added).

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If this Court were to grant Plaintiffs’ request and order State review of every county official’s voter list maintenance decision, it would effectively end voter list maintenance activities in Tennessee. Both states and counties need to be actively involved in the effort to ensure voter lists are accurate. Tennessee has been fulfilling this task as intended. 3. In Light of the Congressional Compromises of the NVRA and HAVA, Plaintiffs’ Requested Remedy Is Unacceptable Given the foregoing, one is left to wonder why Plaintiffs have not asked for better HAVA Section 302 enforcement in Tennessee, such as requiring improved provisional ballot access, in their request for a temporary injunction. Plaintiffs apparently place a low priority on accurate voter registration rolls. If protection of voting rights were Plaintiffs’ only focus, then ensuring the proper application of the mandated provisional ballot law would seem to be the appropriate remedy – not to mention the remedy Congress intended. In the language of HAVA, the purpose of the provisional ballot requirement was to ensure “fail-safe voting” for citizens. 42 U.S.C. § 15483(b)(2)(B). Accordingly, the very language of HAVA contemplates the possibility of “failures” in voter registration list maintenance activities and then provides an immediate remedy in the form of requiring provisional ballots be supplied in the event of a failure. Plaintiffs’ requested remedy would make it more difficult for Tennessee to comply with Section 8 of the NVRA and Section 303 of HAVA. Congress has already designed the remedy for instances of failures in lawful voter list maintenance activities. The Congressional remedy was to ensure that citizens whose names were inadvertently removed from the voter rolls can still vote by provisional ballot pursuant to Section 302 of HAVA. Remedying a failure in the implementation of Section 302 of HAVA by preventing future effective and lawful implementation of Section 8 of the NVRA would get matters backwards, flying in the face of 12 Case 2:12-cv-00023 Document 29 Filed 06/08/12 Page 12 of 15 PageID #: 442

Congressional intent. This Court should not attempt to undo the carefully crafted and brokered balancing acts Congress achieved with the passage of both the NVRA and HAVA. The instant case is very similar to a recent case in Colorado. That case also pitted the two critical election law interests – access to the ballot box and election integrity – up against each other when the plaintiffs asked for a preliminary injunction to stop Colorado from cleaning its rolls. However, the Court denied the request in language that is directly applicable here: With regard to the public interest, Plaintiffs simply posit that protecting fundamental voting rights is in the public interest. This is axiomatically true. It is also true, however, that the relief requested -- a wholesale resignation of 6000 “cancelled”/”Failed - 20 day” voters whose application addresses were erroneously given or recorded to “active” status -- deprives the State of an important means of effecting its mandate to register only eligible voters and to ensure accuracy in its voter rolls. The NVRA contemplates that states will enact programs to confirm voter eligibility and registration. By preventing election officials from being able to confirm the eligibility of those 6000 “cancelled” registrants for the two-year period contemplated by NVRA § 8(d), the relief requested adversely impacts the public interest. Common Cause of Colorado, v. Buescher, 2010 U.S. Dist. LEXIS 114460 at 8-9 (D. Colo. Oct. 18, 2010) (emphasis added). Two weeks later, the same Colorado court denied summary judgment for the plaintiffs and entered a judgment for the state of Colorado, protecting States’ interest in complying with federal law to ensure their voter rolls were accurate: Given the concomitant mandates under the NVRA that states register “eligible” applicants and maintain “accurate” voter registration rolls, I decline to adopt the narrow reading of NVRA § 8(d) urged by Plaintiffs. Plaintiffs’ reading interferes with Colorado’s ability to confirm a registration applicant’s initial residential eligibility and prevents it from moving voters who refuse or fail to confirm their initial eligibility out of “active” status in SCORE for two federal election cycles. This interference is neither mandated by § 8 nor consistent with the NVRA’s overall purposes. Common Cause of Colorado, v. Buescher, 750 F. Supp.2d 1259, 1263-1264 (D. Colo. 2010) (emphasis added). 13 Case 2:12-cv-00023 Document 29 Filed 06/08/12 Page 13 of 15 PageID #: 443

The Colorado court recognized that the delicate balancing act achieved by Congress in passing laws to safeguard our most precious of liberties could not be subject to the vagaries of judicial re-interpretation. While Plaintiffs’ pleas about voting rights and disenfranchisement carry emotional weight, clear-eyed jurists know better than to let a simple mistake undo decades of careful lawmaking. Even if some small amount of votes are either not taken or counted, this does not justify negating laws designed to ensure all elections are legal, accountable, and safeguarded against fraud. As Judge James G. Carr explained: Balancing these two interests -- avoiding fraud, and ensuring that every ballot counts -- I conclude that, though some small number of provisional ballots may not be counted as a result of the identification requirements of Directive 2004-7, the risk of loss of those ballots, however unfortunate, is justified by the likely inability, if even less burdensome (and less verifiable) forms of identification were allowed or required, to detect and prevent election fraud. League of Women Voters v. Blackwell, 340 F. Supp.2d 823, 827-28 (N. D. Ohio 2004) (emphasis added).

CONCLUSION For all the foregoing reasons, amici curiae respectfully request that this Court DENY the Motion for Preliminary Injunction. Dated: June 8, 2012 Respectfully submitted, /s/ Chris Fedeli . Paul J. Orfanedes Chris Fedeli Motion to Appear Pro Hac Vice Pending JUDICIAL WATCH, INC. 425 Third Street, SW, Ste. 800 Washington, DC 20024 202-646-5172 office 202-646-5199 facsimile porfanedes@judicialwatch.org cfedeli@judicialwatch.org 14 Case 2:12-cv-00023 Document 29 Filed 06/08/12 Page 14 of 15 PageID #: 444

Local Counsel: James D. R. Roberts, Jr. . James D. R. Roberts, Jr. BPR # 017537 Janet L. Layman, BPR #021569 ROBERTS & LAYMAN 1700 Hayes Street, Suite 303 Nashville, Tennessee 37203 615-242-2002 office 615-242-2042 facsimile Jim.Roberts@RobertsandLayman.com Attorneys for Amici Curiae

Certificate of Service I hereby certify that on June 8, 2012, a copy of the foregoing was filed electronically with the Clerk of the Court using CM/ECF system, which will send notice of electronic filing to the counsel of record listed below. Janet N. Kleinfelter Deputy Attorney General Public Interest Division Office of the Tennessee Attorney General P. O. Box 20207 Nashville, Tennessee 37202 (615) 741-7403 Janet.Kleinfelter@ag.tn.gov George Barrett Barrett Johnson LLC 217 Second Avenue North Nashville, Tennessee 37201 615.244.2209 office 615.252.3798 facsimile Gbarrett@BarrettJohnson.com

/s/ James D. R. Roberts, Jr.

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