ORDER AND RULING ON THE MOTIONS TO DISMISS FILED BY DEFENDANTS AND THE MOTIONS FOR SUMMARY JUDGMENT FILED BY THE SECRETARY OF STATE AND THE UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT, MIDDLE DISTRICT OF LOUISIANA
I. INTRODUCTION
As his second term neared its end, Thomas Jefferson wrote: “[T]hat .government ,.. [is] the strongest of which every man feels himself a part.”
On April 19, 2011, pursuant to Section 1983 of the United State Code’s forty-
Defendants and Plaintiff (collectively, “Parties”) have filed the six dispositive motions now before this Court: (1) the Motion for Partial Summary Judgment (“Schedler’s MSJ”), (Doc. 336), filed by J. Thomas Schedler, the Louisiana Secretary of State and a defendant (“Schedler” or “SOS”); (2) the Motion to Dismiss Based on Res Judicata, Collateral Estoppel or Mootness (“DCFS’ MTD), (Doc. 340), tendered by two defendants, the Louisiana Department of Children and Family Services (“DCFS”) and the Louisiana Department of Health and Hospitals (“DHH”);
Each of these six motions has engendered distinct yet interrelated replies and responses. To Schedler’s MSJ, the US has responded with the Memorandum in Opposition to Motion for Partial Summary Judgment (“US’ Opposition to Schedler’s MSJ”), (Doe. 382), to which Schedler has replied with the Memorandum in Reply to Memorandum in Opposition to Motion for Partial Summary Judgment (“Schedler’s MSJ Reply”), (Doc. 395). After the US submitted its Surreply Brief in Support of its Opposition to Defendant Schedler’s Motion for Partial Summary Judgment (“US’ Surreply to Schedler’s Reply”), (Doc. 420), Schedler was allowed to file the Sur-Sur Reply to United States Surreply Submitted and Attached to Doc 411 (“Schedler’s Surreply”), (Doc. 423).
The US has countered DCFS’ MTD with the Memorandum in Opposition to Motion to Dismiss Based on Res Judicata, Collateral Estoppel or Mootness (“US’ Opposition to DCFS’ MTD”), (Doc. 385); DCFS and DHH responded with the Reply to Opposition to Motion to Dismiss (“DCFS’ Reply”), (Doc. 407).
LA’s First MTD spawned its own series of filings, including the US’ Response Brief in Opposition to the State of Louisiana’s Motion to Dismiss Pursuant to Rule 12(b)(1) (“US’ Opposition to LA’s First MTD”), (Doc. 384), and Defendant State of Louisiana’s Reply in Support of Its Motion to Dismiss Pursuant to Rule 12(b)(1) (“LA’s First Reply”), (Doc. 409).
Schedler’s MTD was opposed by the United States’ Memorandum in Opposition to SOS’s Motion to Dismiss (“US’ Opposition to Schedler’s MTD”). (Doc. 388.) DCFS and DHH joined the opposition via the Response to Defendant Schedler’s Motion to Dismiss for Lack of Subject Matter Jurisdiction (“DCFS’ Joinder Response”), (Doc. 389), defended by Schedler’s Reply Memorandum to United States’ Opposition to Schedler’s Motion to Dismiss as Moot (“Schedler’s MTD Reply”), (Doc. 415).
LA’s Second MTD is supported by the Defendant State of Louisiana’s Reply in Support of Its Motion to Dismiss Pursuant to Rule 12(c) (“LA’s Second Reply), (Doc. 414), and opposed by the United States’ Memorandum in Opposition to the State of Louisiana’s Motion to Dismiss Pursuant to Rule 12(c) (“US’ Opposition to LA’s Second MTD”), (Doc. 394).
The US’ MSJ, supported by numerous exhibits, (Docs. 347-56), elicited DHH’s Opposition to USA’s Motion for Summary Judgment (“DHH’s First Opposition to US’ MSJ”),
Having waded through these papers, and considered the oral argument made by the Parties on May 17, 2016, this Court reaches four conclusions based on existing jurisprudence. First, neither preclusion nor mootness prevent the United States from maintaining this suit against the Defendants. While the Scott Court determined much, it did not decisively establish Defendants’ requisite compliance with the NVRA and thus absolve them of liability for pre- and post -Scott violations.
Second, as the NVRA not only passes constitutional muster but also lodges responsibility for conformity with its dictates onto forty-four (44)
Third, in accordance with well-established principles of statutory construction, the NVRA must be read to encompass remote transactions. As Defendants insist, its structure arguably creates a modicum of ambiguity. But a rigorously contextual analysis, wedded to basic semantic and syntactic canons and informed by this law’s obvious purposes, renders any other construction unconvincing. Once properly derived, therefore, the NVRA’s plain and unambiguous meaning reveals that its ambit extends to transactions done remotely. Defendants look for comfort in a brief excerpt from a congressional report, but no court and no party may so tinker with a statute’s enacted text. This Court will hon- or the statute’s plain meaning.
Fourth, in weighing the merits of a motion for summary judgment, because this Court must disregard all evidence favorable to the moving party that a reasonable jury is not required to believe, two ostensibly discordant conclusions follow. First, this Court cannot conclude with absolute certainty that the US’ requested remedy— perpetual monitoring of a sovereign state — is proper. Factual issues regarding the nature and extent of the violations remain, issues which are relevant to the proper remedy. Though the US has requested this recognized and occasionally awarded form of relief, when both a fundamental right and a sovereign’s liability for its contravention clash, a court must tread
For these reasons, as more fully explained below, this Court DENIES Defendants’ Dispositive Motions and GRANTS IN PART and DENIES IN PART the US’ MSJ.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. CAST OF CHARACTERS
Plaintiff is the United States, suing to enforce the NVRA’s statutory guarantees. (Doc. 1 ¶ 4 at 2; Doc. 2 at 1; Doc. 37 at 1; Doc. 38 at 1-3) In particular, “[t]he United States’ Complaint seeks declaratory and injunctive relief to remedy Louisiana’s previous and ongoing noncompliance with Section 7, and also ensure the state’s future compliance with Section 7.” (Doc. 38 at 3; accord Doc. 1 ¶ 1 at 1, ¶¶ 15-25 at 4-8.) There are six Defendants: (1) LA, a state allegedly subject to the NVRA; (2) Sche-dler, being sued in his official capacity as the chief election official responsible for coordinating LA’s statutory obligations under the NVRA; (3) DHH, which bears responsibility for the administration of a variety of public assistance and disability programs arguably subject to § 20506(a)(2) and (a)(3); (4) Mr. Bruce D. Greenstein (“Greenstein”), seemingly sued in his official capacity as DHH’s former Secretary;
B. LEGISLATIVE BACKGROUND: NATIONAL VOTER REGISTRATION ACT
1. Constitutional Reach
The United States Constitution provides: “The Times, Places and Manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the place of chusing [sic] Senators” (“Elections Clause”). U.S. Const, art. I, § 4, cl. 1; Ariz. State Logis, v. Ariz. Indep. Redistricting Comm’n, — U.S. —,
With the Elections Clause so construed, the Necessary and Proper Clause
Passed pursuant to these two constitutional provisions,
2. Statutory Purposes
The NVRA’s obvious and well-known purposes appear in its bare text. See Miller v. Amusement Enters., Inc.,
So convinced, Congress passed the NVRA so as “to establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office,” “to make it possible for Federal, State, and local governments to implement this Act in a manner that enhances the participation of eligible citizens as voters in elections for Federal office,” and “to protect the integrity of the electoral process”; and “to ensure that accurate and current voter registration rolls are maintained.” 52 U.S.C. § 20501(b)(1)-(4); Arcia v. Sec’y of Fla.,
As adopted and construed, the NVRA hence seeks to accomplish two general goals. In certain respects, the NVRA strives to “protect the integrity of the electoral process.” Nearman v. Rosenblum,
3. General Structure
The NVRA “prescribes three methods for registering voters for federal elections,” subject to two inapposite exceptions. 52 U.S.C. § 20503; Gonzalez,
As a statutory matter, the two categories listed in § 20506(a)(2) are neither exclusive nor exhaustive, for each state must still “designate other” unspecified “offices within the State as voter registration agencies.” 52 U.S.C. § 20506(a)(3)(A); cf. N.C. State Conf. of NAACP v. McCrory, Nos. 1:13CV658,
In accordance with the NVRA, each VRA must distribute voter registration application forms for voting in federal elections, assist applicants in completing these forms, and accept completed applications for transmittal to the appropriate state official.
Section 7, meanwhile, does contain other paragraphs. Thus, in addition to the duties specified in paragraph (a)(4), each VRA must both “distribute with each application for such service or assistance, and with each recertification, renewal, or change of address form relating to such service or assistance-... the mail voter registration application form described in”
4. Enforcement and Responsibility
Like many statutes, cf. 31 U.S.C. § 3730(a)-(b); Carter ex rel. United States v. Bridgepoint Educ., Inc.,
Independently, on behalf of the United States, “[t]he Attorney General may bring a civil action in an appropriate district court for such declaratory or in-junctive relief as is necessary to carry out” the NVRA. 52 U.S.C. § 20510(a); Harkless,
Throughout its sections, the NVRA opts for a particular introductory formulation: “Each State shall .... ” 52 U.S.C. §§ 20503(a), 20506(a) (emphasis added).
Overall, then, Congress’ chosen terms lead to an inescapable textual conclusion. While some NVRA provisions “envision delegation, and do not require the states to do more than delegate,” “[u]nder the plain language of the statute, states must take specific actions” and thus bear ultimate liability and final responsibility for any contrary nonaction. Missouri,
C. FACTUAL AND PROCEDURAL BACKGROUND
1. Scott Matter
a. Findings of Fact and Conclusions of Law in Scott Matter
“Intermittently homeless,” Scott received benefits pursuant to the Supplemental Nutrition Assistance Program (“SNAP”), a hybrid federal-state program providing nutrition assistance to millions of eligible, low-income individuals and families managed by DCFS. (Doc. 436 at 5, No. 2:ll-cv-00926-JTM-JCW; see also Doc. 1 ¶¶ 102-06 at 27-28, No. 2:ll-cv-00926-JTM-JCW.) Scott applied for SNAP in September 2009 and December 2009 and renewed his application on November 2010 at a local DCFS office.” (Doc. 436 at 5-6, No. 2:ll-cv-00926-JTM-JCW; see also Doc. 1 ¶¶ 102-06 at 27-28, No. 2:ll-cv-00926-JTM-JCW.)
The initial application forms submitted by Scott in 2009 did contain a section entitled “Voter Registration,” which contained “the proper language under” and was generally “in compliance with” the NVRA. (Doc. 436 at 6-9, No. 2:ll-cv-00926-JTM-JCW.) At least once he discussed voter registration with a DCFS-managed office. (Id.) However, the document that he submitted in November 2010 did “not contain the voter registration language as required under the NVRA,” and voter registration was discussed with Scott only on his first recorded visit. (Id. at 9, No. 2:ll-cv-00926-JTM-JCW; see also Doc. 1 ¶ 106 at 28.) More problematically, Scott “did not receive a voter registration form[s] [with] ... [his] benefits form[s]” (Doc. 436 at 8-9, No. 2:ll-cv-00926-JTM-JCW; see also Doc. 1 ¶¶ 102-06 at 27-28, No. 2:1 l-cv-00926-JTM-JCW.)
On the bases of these factual findings, “Scott suffered an actionable injury during ... [these] transactions with DCFS when ... [its employees] failed to meet their obligation to Scott” under the NVRA. (Doc. 436 at 10, No. 2:ll-cv-00926-JTM-JCW; see also Doc. 1 ¶ 106 at 28.) In sum, Scott had “been in person to ... [a] DCFS office several times and did not receive the information required under the NVRA.”
(1) DCFS did not provide voter registration services with every remote transaction; (2) DCFS did not provide voter registration services with every renewal of benefits prior, to October 31, 2010; (3) DCFS did not require its staff to distribute a voter preference form at every change of address transaction; (4) DCFS policy did not require that voter registration services be provided during any remote change of address transaction; (5) DCFS change of address forms, such as the CCAP 10 and the OFS 4SR, did not contain voter registration questions; (6) DCFS policy did not expressly require that voter registration be provided with the CCAP, KCSP, and DSNAP programs; (7) DCFS policy gave employees discretion to give voter registration forms to clients, or to advise the client about the SOS’s website; [and] (8) DCFS did not require staff to distribute voter registration forms unless the client checked “yes.”
(Id. at 25-26, No. 2:ll-cv-00926-JTM-JCW; see also Doc. 1 ¶¶ 57-81 at 16-24, Ño. 2:11-cv-00926-JTM-J CW.)
The Scott Court went further. Having never interacted with Scott, DHH had nonetheless “engaged in numerous NVRA violations” prior to August 11, 2011. (Doc. 436 at 5, 20, 25, No. 2:ll-cv-00926-JTM-JCW; see also Doc. 1 ¶ 56 at 16, ¶¶ 61-77 at 17-22, No. 2:ll-cv-00926-JTM-JCW.) Documenting each violation, (Doc. 436 at 21-25, No. 2:ll-cv-00926-JTM-JCW), the Scott Court proceeded to identify at least seven separate violations by DHH:
(1) DHH did not provide voter registration services with any remote transactions prior to July 2011; (2) DHH did not provide voter registration services with address changes; (3) DHH did not require staff to distribute voter registration forms unless the client checked the “yes” box; (4) DHH Medicaid application and renewal forms did not include a voter registration question; (5) DHH’s “Motor Voter Form” lacked a disclaimer that registering to vote will not affect the “amount” of assistance received; (6) DHH’s [Woman, Infants, and Children Program • (“WIC”) ] ... did not advise clients of the disclaimers required by the statute; and (7) while DHH checked benefits application forms and followed up for missing information, it did not do so with voter registration forms.
(Id. át 20; see also Doc. 1 ¶¶ 61-77 at 17-22, 84-97 at 24-26, No. 2:ll-ev-00926-JTM-JCW.)
SOS was adjudged next. As the Scott Court concluded, SOS had provided NVRA training and materials, but had not “engage[d] in any other measures to ensure that individual public assistance offices are complying with their responsibilities under the NVRA.” (Doc. 436 at 28, No. 2:ll-cv-00926-JTM-JCW.) The SOS’ training was found to be “inconsistent and inaccurate.” (Id.) For support for this conclusion, the Scott Court emphasized three facts: (1) SOS had provided no NVRA training for DCFS employees from 2008 to the spring of 2011; (2) it had falsely informed DHH personnel “that DHH clients were only afforded an opportunity to register to vote only if ... [they] appeared in person at a DHH officer”; and (3) it did not “Advise DCFS or DHH with regard to distributing voter registration application forms to clients who did not respond to the voter declaration question.” (Id.)
For all these reasons, the Scott Court entered the First Injunction. (Doc. 437, No. 2:ll-cv-00926-JTM-JCW.)
In considering the SOS’ appeal of the First Injunction, the Fifth Circuit left it mostly undisturbed. The panel did “dismiss Scott’s claims on standing and notice grounds,” and it did “vacate in part the relief that the district court granted to the Louisiana NAACP.” Scott,
2. Alleged “Facts”: Pre-Scott and Post-Scott
a. US’ Version
Before and after the Scott Matter’s adjudication, other facts relating to several statutory violations have been unearthed. Three alleged violations involve paragraph (a)(4)(A) of Section 7, which begins: “At each voter registration agency, the following services shall be made available_” 52 U.S.C. § 20506(a)(4)(A (emphasis added); Ass’n of Cmty. Orgs. for Reform Now v. Ridge, Civ. Nos. 95-7671,
Paragraph (a)(6) is the focus of a separate series of purported violations. As this paragraph commands, each VRA must “distribute” a certain approved type of mail voter registration application, a form including a series of questions, and finally “provide each applicant who does not decline to register to vote the same degree of assistance with regard to the completion of the [voter] registration application form as is provided by th[at VRA] office with regard to the completion of its own forms, unless the applicant refuses such assistance.” . 52 U.S.C. § 20506(a)(6)(A)-(C). Unlike paragraph (a)(4)(A), this paragraph does not contain an “at” or any similar preposition. Instead, it begins: “A voter registration agency that is an office that provides service or assistance in addition to conducting voter registration shall .... ” Id. § 20506(a)(6); see also Cegavske,
The US contends that the Medicaid program managed by DCFS is also rife with compliance issues. “Prior to the initiation of this '... and the Scott litigation, Medicaid applications and renewal forms did not contain the required voter registration forms, and Medicaid offered no voter registration services or assistance to clients and applicants who did not appear in person at a parish office or [Medicaid Application Centers.” (Doc. 3601-1 at 18; see also, e.g., Doc. 360-2 ¶ 12 at 4, ¶ 27 at 7.) Up to August 2015, “Medicaid was still failing to offer voter registration forms and declaration forms to all adult citizens who applied for Medicaid using the standard application form,” opting to provide such forms “only to the first-named applicant.” (Doc. 360-1 at 18; see also, e.g., Doc. 360-2 ¶ 29 at 8.)
Meanwhile, prior to April 11, 2013, the Office for Citizens with Development Disabilities (“OCDD”), classified as a VRA under § 20506(a)(2)(B) and a component of DHH,
The US argues that the many colleges and universities within the University of Louisiana System (“ULS”), the Southern University System (“SUS”), and the Louisiana State University System (“LSU”) are not “routinely providing” these forms. (Doc. 360-1 at 21-23; see also Doc. 360-2 ¶ 149 at 40-41.) Lastly, OAAS and two more LGEs — the Metropolitan Human Services District (“MHSD”) and Capital Area Human Services District (“CAHSD”) — fail to offer “the same degree of assistance” in completing voter registration forms mandated by § 20506(a)(6). (Doc. 360-1 at 23-24; see also Doc. 360-2 ¶ 46 at 12, ¶¶ 91-92 at 24.)
Moving on to § 20506(a)(4)(A)(iii) and (d), the US documents these same and other entities’ purported failure to comply with the NVRA’s transmittal obligations. By virtue of its reliance on CAFÉ, DCFS “ignores its acceptance and transmittal duties almost entirely by solely providing a link to the SOS’s online voter registration portal, which is a different mode of voter registration altogether.” (Doc. 360-1 at 25; see also Doc. 360-2 ¶ 118 at 32, ¶ 125 at 33-34, ¶ 131 at 35.) Moreover, throughout 2013, 2014, and 2015, photocopied registration applications were being sent by DCFS document processing centers, though such photocopied materials cannot “result in valid voter registration” under Louisiana law. (Doc. 3601- at 25; see also Doc. 360-2 ¶ 131 at 35.) In addition, “DCFS also continues to hold voter registration applications it receives longer than the 10 [and/]or five day deadlines mandated by the NVRA.” (Doc. 360-1 at 25 (referring to § 20506(d)(1)); see also Doc. 360-2 ¶ 132 at 35-36.) In fulfilling its duty, the US maintains that DCFS has arguably stumbled in one more particular. Specifically, it “still fails to ensure that all completed voter registration applications transmitted to registrars of voters are properly marked as originating from a public assistance agency.” (Doc. 360-1 at 25; see also Doc. 360-2 ¶ 132 at 35-36.)
Like DCFS, DHH has also failed to transmit voter registration with the rigor expected by § 20506(a)(4) and (d). (Doc. 360-1 at 25-26; see also Doc. 360-2 ¶¶ 67-67A at 17-18.) Relatedly, since DHH’s contracts with each LGE provide that it “shall monitor this Contract and conduct compliance monitoring consistent with the provisions of the AIP, and all applicable statutes, rules, and regulations, assuring corrective action through coordination with the LGE,” (Doc. 360-2 ¶ 77 at 20), these LGEs’ many documented failings to comply with the NVRA must be attributed to DHH. (Doc. 360-1 at 26-28.)
Noting that the SOS’ coordination power includes “enforcement power” pursuant to Scott,
More violations are alleged by the US: the SOS does not include instructions on voter registration declaration and application forms outlining the duties of applicants and agencies and uses a model form that does not include information required by Louisiana’s own Election Code. (Doc. 360-2 ¶¶ 186-87 at 52.) The SOS has even given voter registration agencies advice or instructions that “directly ... conflict” with the NVRA. (Doc. 360-1 at 32; see also Doc. 360-2 ¶ 182 at 51-52.) Even his classification system for voter forms runs afoul of federal law’s clear requirements, with many applications not being coded as having been received or generated through a public assistance agency. (Doc.. 360-2 ¶¶ 193-96 at 54-55; cf Doc. 1 ¶ 23 at 7-8.) One more example suffices: though SOS has required DCFS to submit quarterly activity reports as of January 2014, “DCFS did not submit any of the required quarterly reporting information until January 2015.” (Doc. 360-2 ¶ 104 at 28.)
b. Defendants’ Version
As to the foregoing failings predating the Scott Matter, DHH and DCFS have acknowledged their noncompliance “with the NVRA in every respect.” (Doc. 398 at 1; Doc. 399 at 1; Doc. 402 at 2.) More importantly, while they challenge the propriety of the present suit, DHH and DCFS aver no more than their “substantial compliance” with the NVRA and characterize any “current ... violation” as “minimal, at best.” (Doc. 398 at 2; Doc. 399 at 2; Doc. 402 at 2.) Hence, DCFS and DHH do not truly deny every “fact,” characterized as such by the US. (Doc. 398 at 2; Doc. 399 at 2; Doc. 402 at 2; Doc. 399-1; Doc. 402-1.) Instead, these allied defendants repeatedly insist “substantial compliance with the NVRA” has occurred since the First Injunction was entered, (Doc. 398 at 9-38; Doc. 399 at 9-38), though SOS attempted to do so with a belated motion, (Doc. 448).
c. Summary: Selected Comparison
In its Findings of Fact and Conclusions of Law, the Scott Court stated its conclusions plainly and unmistakably: “[p]rior to August 15, 2011,” DHH, DCFS, and SOS had not not “in full compliance with the [NVRA’s] mandates.” (Doc. 436 at 3, 25, 27, 29, No. 2:ll-cv-00926-JTM-JCW.) This court did award a broad remedy, requiring the SOS “to implement such policies, procedures, and directives as to each [qualifying’] program,” (Doc. 437, No. 2:ll-cv-00926-JTM-JCW), and was eventually reversed for this seeming “vagueness” pursuant to Rule 65(d), Scott,
Examples gleaned from Defendants’ own filings and the US’ MSJ disclose as much. Thus, DCFS and DHH have already-conceded that certain “disability services programs,” including the regional service centers of several LCDs, OBH, and OAAS, were “not raised or litigated in Scott.” (Doc. 398 at 9; Doc. 399 at 9.) Yet, according to these Defendants, these VRAs “were not consistently providing voter registration with each application” as required by the NVRA. (Doc. 398 at 10-13; Doc. 399 at 10-13.) Similarly, DCFS has acknowledged that the Scott Court never discussed or determined CAFÉ’s compliance with the NVRA. (Doc. 402 at 7.) Indeed, in DHH’s First Opposition to US’ MSJ, DHH identifies only two programs as having been litigated to a final judgment in Scott: WIC and Medicaid. (Doc. 398 at 9.) No mention of any deficiencies in the services provided by Louisiana’s higher education system or several LGEs, moreover, can be found in Scott. (Compare Doc. 346-1, with Doc. 436, No. 2:ll-cv-00926-JTM-JCW.) Despite their multiple motions, DCFS and DHH admit that “instances of program-specific NVRA violations” still regularly occur. (Doc. 398 at 2.)
D. PROCEDURAL HISTORY
Eighty-four (84) days after the Scott Matter had begun, Plaintiff filed the relevant complaint on July 12, 2011, charging Defendants with violating Section 7 of the NVRA. (Doc. 1; see also Doc. 1, No. 2:11-cv-00926-JTM-JCW.) Dated January 25, 2016, Schedler’s MSJ prompted the filing of the US’ Opposition to Schedler’s MSJ on February 24, 2016, (Doc. 382), which was followed by Schedler’s MSJ Reply on March 15, 2016, (Doc. 395), the US’ Surre-ply to Schedler’s Reply on March 23, 2016, (Doc. 420), and Schedler’s Surreply on March 28, 2016, (Doc. 423). DCFS’ MTD, filed on January 29, 2016, (Doc. 340), led to the tendering of the US’ Opposition to DCFS’ MTD on February 29, 2016, (Doc. 385), and the DCFS’ Reply on March 21, 2016, (Doc. 407). Stamped January 29, 2016, (Doc. 341), LA’s First MTD prompted the US’ Opposition to LA’s First MTD on February 29, 2016, (Doc. 384), and LA’s First Reply on March 21, 2016, (Doc. 409). Schedler’s MTD, filed on January 31, 2016, (Doc. 342), was followed by the US’ Opposition to Schedler’s MTD on March 1, 2016, (Doc. 388), DCFS’ Joinder Response on March 1, 2016, (Doc. 389), and Sche-dler’s MTD Reply on March 23, 2016, (Doc. 415). LA’s Second MTD was filed on February 1, 2016, (Doc. 345), the US’ Opposition to LA’s Second MTD on March 2, 2016, (Doc. 394), and Schedler’s MTD Reply on March 23, 2016, (Doc. 414). The US’ MSJ, an incorrect version filed on February 1, 2016, (Doc. 346), and a corrected one on February 2, 2016, (Doc. 360), was trailed by DHH’s First Opposition to US’ MSJ, (Docs. 398-99), LA’s Opposition to US’ MSJ, (Doc. 400), and DCFS’ Opposition to US’ MSJ on March 18, 2016, (Doc. 402). The US’ MSJ Reply came on April 18, 2016. (Doc. 444.) Twenty days earlier, on March 29, 2016, in response to the Parties’ Joint Motion to Set Dispositive Motions for Oral Argument, (Doc. 421), the Court scheduled oral argument on these motions for May 17, 2016. (Doc. 426.) On May 17, 2016, this Court heard the Parties’ arguments (“Motions Hearing”) and took the matter under advisement.
On January 23, 2013, the Scott Court issued the First Injunction. (Doc. 437, No. 2:ll-cv-00926-JTM-JCW.) The Fifth Circuit affirmed and vacated in part on No
III. SUMMARY OF PARTIES’ ARGUMENTS
A. LA’S ARGUMENTS FOR DISMISSAL: NVRA’S APPLICABILITY TO STATE
In its first dispositive motion, (Docs. 341), and its supporting reply, (Doc. 409), LA invokes Rules 12(b)(1), contesting this Court’s jurisdiction for three reasons.
First, LA argues that this court has always lacked subject-matter jurisdiction over the Parties’ dispute based on the Constitution’s Eleventh Amendment. (Doc. 341 at 2; Doc. 341-1 at 2-4; see also Doc. 414 at 6-8.) This amendment “bars a state’s citizens from filing suit against ... [a sjtate in federal court unless it has waived its immunity.” (Doc. 341 at 2-3, 3 n.3.) LA has not done so, as both case law and state law reveal, and Plaintiffs suit must therefore be dismissed.' (Id. (referring to LA. R.S. § 13:5106(A); Patterson v. Stalder, Civ. No. 06-752-P,
Second, LA asserts that only one “very narrow” and inapplicable exception — the so-called “Ex Parte Young exception”— exists. (Doc. 341 at 2.) In general, this exception allows “[a] state official in his or her official capacity ... [to] be sued for prospective injunctive relief [so as] to prevent or cure an ongoing violation of the Constitution or federal law.” (Doc, 341-1 at 6.) Here, however, “the Plaintiff [has] fail[ed] to show that the State of Louisiana has the requisite connection with the enforcement of the act challenged necessary to establish the Ex Parte Young Exception.” (Doc. 341 at 2; see also, e.g., Doc. 341-1 at 6-7; Doc. 409 at 8-9.) Young does not apply, and' Young alone could' justify the US’ present suit.
Third, “other officers and agencies,” not LA, “are actually responsible for specific enforcement of the provisions of the National Voter Registration Act challenged.” (Doc. 341 at 2.) LA “cannot singularly enforce the policies of the NVRA,” and since “[t]his court” has already held the SOS “responsible, for NVRA compliance/’ it was and is “not necessary or proper for ‘the State’ to be a named Defendant in connection with this case,” (Doc. 341 at 3; see also Doc. 409 at 2-6.) For support for this contention, LA directs this Court to un order regarding the Plaintiffs motion to compel, (Doc. 315), issued by the Honorable Richard L. Bourgeois and identifying the SOS as “the entity responsible for NVRA compliance” (“Order on Motion to Compel”), (Doc. 327 at 5). (Doc. 341-1 at 7-8; see also Doc. 409 at 6; cf. Doc. 414 at 8.) In LA’s First Reply, this.point is emphasized: as LA has designated the SOS as its chief election officer, it “has completed its duty” under the NVRA and “is no longer
To LA’s First MTD, the US makes three responses. First, the Eleventh Amendment does forbid suits by a state’s citizens against a state, but it does not proscribe a suit against a state by the United States. (Doc. 384 at 3-4; see also Doc. 444 at 14.) While there are limited exceptions, none apply here, and the present action is thus unimpeded by the Constitution. (Doc. 384 at 4-5; see also Doc. 444 at 14.) Second (and relatedly), LA is “mistaken” when it insists the Ex Parte Young Exception could alone justify this suit, as “Ex Parte Young does not apply to the United States’ suing the State.” (Doc. 384 at 6-7; see also Doc. 444 at 14.) Third, “[qjuestions about whether the United States has sufficiently alleged acts and omissions on the part of the State that violate the NVRA, or about whether the State has the ability to enforce the NVRA” go to the merits, more properly advanced in a motion to dismiss predicated on Rule 12(b)(6) or (c). (Doc. 384. at 7; see also Doc. 444 at 14.) The US even advises LA that Rule 12(c)
Within days of its first motion, (Doc. 341; Doc. 384 at 7), LA submitted its second dismissal motion, (Doc. 345). In essence, this motion argues that “no statutory authority is given [by the US] to support a suit against the State of Louisiana under the NVRA,” (Doc. 345 at 2; see also Doc. 414 at 9), as “none of the[ ] provisions [cited by the US] give the ... [US] the authority to actually bring suit against the state,” (Doc. 345-1 at 2). LA goes further, contending that the Complaint contains “no allegations against the State of Louisiana or that the State of Louisiana caused the deprivation of a clearly established constitutional right of the Plaintiff.”
The US responds to LA’s Second MTD with statutory citations and jurisprudential distinctions. By its reckoning, “as a ‘State of the United States,’ Louisiana is subject to the requirements of the NVRA.” (Doc. 394 at 3 (citing to 52 U.S.C. §§ 20502(4), 20503); see also Doc. 444 at 14.) Section 20509, in turn, “speaks generally about
The US then points to a telling piece of evidence: on July 8, 2015, the former Governor of Louisiana issued an executive order directing the other defendants here to comply with the SOS’ efforts to enforce the NVRA, a “recent and noteworthy example of the State’s exercise of its direct authority under the NVRA.” (Doc. 394 at 5; see also Doc. 444 at 14.) Characterizing LA’s reliance on Rule 12(c) as “misguided,” the US concludes with a reaffirmation of this case’s factual and legal underpinnings, as it perceives them: LA “is responsible for its consistent and repeated failure to meet its obligations under the NVRA,” and the “behavior of ... [its] officials— actions and omissions which have resulted in consistent and widespread NVRA noncompliance throughout Louisiana — make the State an appropriate Defendant in this case.” (Doe. 394 at 8-9.) Naturally read, the NVRA pegs LA as the entity responsible for its overall enforcement and compliance, assigning it ultimate liability even as it requires that one official be selected as the state’s administrator, as the Governor’s statement underscores.
B. DCFS’ AND DHH’S ARGUMENTS FOR DISMISSAL: PRECLUSION AND MOOTNESS
Predicated on res judicata and mootness, DHH and DCFS advance four specific grounds for this matter’s dismissal in DCFS’ MTD.
First, invoking the doctrine of res judi-cata, which “incorporates claim preclusion and issue preclusion,” DCFS and DHH contend that the Scott judgement should bind this Court and lead to this action’s dismissal. Defendants argue that, in the two actions, “defendants (DHH and DCFS) are the same,” “the sole issue” is “the same,” and “the remedy requested ... is the same.” (Doc. 340-1 at 3, 6-7.) Further, DHH and DCFS “continue to operate their voter registration programs under compulsion of the Eastern District’s permanent injunction.” (Id. (emphasis in original); see also Doc. 407 at 3-7, 9-12.) The Scott Court rejected the need for “monitoring and further reporting,” the remedy that the US now seeks, and the present suit thus amounts to an “unsupportable” attempt at the “dissection and partial enforcement of the Scott court’s final judgment.” (Doc. 340-1 at 2-3 (internal quotation marks omitted); see also Doc. 407 at 3-4, 9.) In other words, the remedy chosen by the Scott Court must bind this Court, regardless of any caveats and conditions appended, see supra Part II.1.
Second, DCFS and DHH deem the US to have been in “aligned interest with the Scott Plaintiffs.” (Doc. 340-1 at 3; see also Doc. 185 at 9.) Though a non-party to the Scott suit, the US was “adequately represented” as Scott and the NAACP were “so closely aligned to ... [its] interests as to be ... [its] (virtual) representative.” (Doc. 340-1 at 3; see also Doc. 185 at 9.) This
This “ample” evidence consists of the Statement of Interest the US filed in the Scott Matter, taken “under consideration” by the Scott Court, its filing of an amicus brief in the Fifth Circuit, and its five-minutes’ worth of oral argument there. (Doc. 185 at 9-10; see also Doc. 340-1 at 4.) In addition, “USA’s counsel” allegedly “observed the Scott trial and often conferred with counsel for the Scott Plaintiffs throughout trial.” (Doc. 185 at 10 n.37; see also Doc. 340-1 at 4.) With the US having been virtually represented in the Scott matter, res judicata applies, and the US should not be allowed “to take a second shot at ... [its] previously-rejected request for continued monitoring and reporting.” (Doc. 340-1 at 5.) In making this argument, Defendants emphasize res judi-cata’s underlying purposes: the avoidance of duplicative and wasteful litigation. (See, e.g., Doc. 38 at 6-7; Doc. 340-1 at 5-7; Doc. 398 at 42-44, 47-48; Doc. 407 at 7, 12.)
Third, “because the issues raised in this case were mooted through resolution of those same issues in Scott, there is no case or controversy for this Court to resolve.”
Lastly, these Defendants question the propriety of the kind of constant monitoring that the US has now demanded, as the latter has yet to show Defendants’ unwillingness to comply with the NVRA. (Doc, 340-1 at 5-6; see also Doc. 191 at 9-10; Doc. 407 at 14-15.) Absent such defiance, monitoring has been rejected as a remedy, as it was by the Scott Court. (Doc. 340-1 at 6; see also Doc. 191 at 9-10.) Federalism itself compels that this Court stay its hand. (See, e.g., Doc. 340-1 at 5, 7.)
Beyond these rationales for dismissal, DHH and DCFS repeatedly concede that “isolated instances of non-compliance” or “minor issues” have occurred since Scott’s injunction was entered, but deny the emergence of “a supportable persistent practice of current noncompliance.” (Doc. 407 at 7-8, 16-17.)
The US responds with five distinct points. First, it has independent authority and interest in the NVRA’s enforcement; thus, it cannot be barred by preclusion principles from litigating the present matter as a result of private parties’ separate litigation. (See, e.g., Doc. 189 at 8, 13-14; Doc. 385 at 3; Doc. 444 at 9.) Second, regardless of how Defendants portray its prior actions, the US was neither a party nor in privity with the Scott Plaintiffs, and its interests were not so aligned as to render the latter virtual representatives of
C. SCHEDLER’S ARGUMENT FOR DISMISSAL: MOOTNESS
On January 31, 2016, Schedler filed his own MSJ. As Schedler argues, “[c]om-pelled” by the Scott court’s injunction, (Doc. 437, No. 2:ll-cv-00926-JTM-JCW), “defendants adopted a regime of NVRA rules, practices,, procedures and forms that changed their previous practices and procedures relating to. voter registration.” (Doc. 342 at 2; see also Doc. 342-15 at 1.) Logically, therefore, “[t]he declaratory and injunctive relief sought by the United States has been rendered moot because the United States can no longer challenge registration practices and procedures that no longer exist in order to obtain prospective relief.” (Doc. 342 at 2; see also Doc. 342-15 at 10.) In other words, “[ujnless the United States can assert colorable claims that have not been subsumed by Scott and the State’s response to Scott, the issues in this case, again with the exception of the in-person remote issue, are moot.” (Doc. 415 at 3; see also Doc, 342-15 at 1, 3-4.) SOS has “made more than a reasonable effort to coordinate the State’s NVRA responsibilities post-Scott,” as shown by the declaration of Ms. Lani Durio, SOS’ own NVRA coordinator, (Doc. 342-15 at 14). (Doc. 415 at 19.) Accordingly, “[tjhere really is no case left.” (Id.; see also Doc. 342-15 at 14-15.) With only one exception — “to the extent” the US seeks “to expand the provisions of Section 7 beyond ‘in person’ applications” — no ease and controversy, as required by the Constitution’s third article, remains.
Though he has disparaged the Amended Injunction’s vagueness before the Fifth
Incorporating the arguments already raised in response to DCFS’ MTD, (Doc. 385), and the US’ MSJ, (Docs. 346, 360), the US contests Schedler’s construction of the mootness doctrine. Under well-settled law, “[a] case should not be declared moot as long as the parties maintain a concrete interest in the outcome and effective relief is available to remedy the effect of the violation.” (Doc. 388 at 4 (quoting Envtl. Conservation Org. v. City of Dallas,
D. SCHEDLER’S MSJ: NVRA’S COVERAGE AS TO REMOTE TRANSACTIONS
In his own MSJ, Schedler advances one argument: per its text, the NVRA does not apply to certain types of actions undertaken by Louisiana’s various VRAs. (Doc. 336 at 1; see also Doc. 395 at 1,11-12.) Defined more precisely, the NVRA, he contends, does not require that the voter registration efforts it mandates in Section 7 occur when a VRA engages in a remote transactions. (Doc. 336 at 1; see also Doc. 395 at 1.) Instead, it “applies only to in person transactions at agency offices.” (Doc. 336-5 at 4; see also Doc. 395 at 1-2.) In his view, any other construction of the NVRA expands its coverage and scope in a manner contrary to the Constitution and the laws of the United States. (Doc. 336 at 2; see also Doc. 336-5 at 7; Doc. 395 at 6-9.)
In support, SOS offers up the following “evidence.” First, he cites to one of Section 4’s paragraphs. (Doc. 336-5 at 7.) In relevant part, this subsection states that “each State shall establish procedures to register to vote in elections for Federal office ... by application in person ... at a Federal, State, or nongovernmental office designated under section 7.” 52 U.S.C. § 20503(a)(3). This subsection, in turn, cabins the scope of Section 7 to only “in person” transactions; thus, as “the NVRA speaks in clear, unambiguous terms with respect to in person applications at public assistance and disability services offices,” this Court obligated to adhere to “[such] particular, concrete terms.” (Doc. 336-5 at 8-9; see also Doc. 395 at 12-13.) In such instances, any construction of Section 7 that ignores the limitation in Section 4
Second, Schedler places much weight on the NVRA’s legislative history. Most particularly, he stresses the “in person” phrase encoded in Section 20503(a)(3) and the Act’s apparent silence as to the issue of remote transactions. (Doc. 336-6 at 9-10; see also Doc. 395 at 14-16.) No reference to telephonic or online applications appears in that thirteen page act, and the “in person” restriction that adorns other sections must be read into Section 7(a)(6). “Statutes do not change their terms,” he states. (Doc. 395 at 18.) “Congress” alone “must amend them.” (Id.)
Third, he contends that if one looks at how the VRAs “work in practice,” it is clear “that the procedures contemplate an in person, face to face transaction.” (Doc. 336-5 at 13-17.) To ignore the weight of this evidence is to rewrite the statute, a congressional function beyond the province of any court. (See, e.g., Id. at 17-18; Doc. 395 at 18-19.) Although they both failed to appeal the Scott Court’s decision finding the NVRA to extend to remote transactions, DCFS and DHH now endorse this position. (See, e.g-., Doc. 38 at 6, 8.)
The US counters with two points. First, it disputes the extent to which a live and ripe controversy as to the NVRA’s coverage over remote transactions actually exists for one reason. As Schedler has himself admitted, (Doc. 382-1 at 2), the actual policies already governing the VRAs require that these entities provide “voter registration services in connection with qualifying transactions that occur remotely.” (Doc. 382 at 3; see also Doc. 444 at 14.) In fact, despite the SOS’ insistence to the contrary, DHH and DCFS have adopted the same such regulations, and this general approach is embodied in .SOS’ NVRA compliance manual. (Doc. 382 at 3-4; see also, e.g., Doc. 420 at 1; Doc. 444 at 14.) The US emphasizes the latter, this “long understood” construction of the NVRA wholly consistent with the SOS’ own online manual, regardless of its present head’s litigation posture. (Doc. 382 at 4-5; see also Doc. 444 at 14.) In other words, Schedler, not the US, is contravening history by adopting a personalized statutory “reading,” one previously rejected by the agency he administers, as his “current litigation position.”
Second, the US strives to. show that Section 7 does apply to remote transactions, attacking Schedler’s reading for being “inconsistent with the NVRA’s plain text and contrary to Congress’!] intent.” (Doc. 382 at 6; see also Doc. 444 at 14.) Textually, the NVRA “establishes a framework through which all voter registration agencies must offer registration opportunities both (1) upon request by individuals appearing in person,” in accordance with § 20506(a)(4), and “(2) with ‘each’ qualifying transaction,” in accordance with
Such an interpretation, according to the US, has additional benefits. Most obviously, it does not render two other statutory phrases — Section 4’s reference to “in person” transactions and Section 7’s use of “in addition” — superfluous, as one more canon forbids, see infra Parts IV.D, V.B. (Id. at 15-16.) Furthermore, it aligns with the NVRA’s preeminent purpose — “to increase voter registration and expand registration opportunities” — and avoids an “odd, “obviously unintentional,” and “absurd” result— the NVRA would not reach those citizens “not likely to benefit from the State motor-vehicle registration application provisions.” (Id. at 17-18.) The Act was expansively written, and remote transactions rather neatly fit within Section 7(a)(6).
E. US’ MSJ: DEFENDANTS’ PAST AND CONTINUING VIOLATIONS OF THE NVRA
In moving for summary judgment, the US relies on the “facts” summarized above, see supra Part II.C.2, that it has collected during this case’s discovery to support a specific conclusion: as a matter of undisputed fact and clear law, Defendants have failed to achieve “full compliance with Section 7” and “to remedy its earlier pre-Scott “non-compliance,” their failings varied and documented. (Doc. 346 at 1-2; see also Doc. 444 at 19-56.) Briefly summarized, the US contends there is no genuine dispute as to four issues.
First, despite § 20506(a)(6)(A)-(B), DCFS, DHH, OCDD, OBH, LCD1, OAAS, LGEs, disability offices at various colleges and universities have not and continue not to distribute voter registration applications, voter declaration forms, and related assistance with each initial application for their NVRA-eovered services. (Doc. 360-1 at 18-23; accord Doc. 346-1 at 17-23; see also Doc. 444 at 19-29, 40-51.)
Second, although § 20506(a)(6)(C) requires each VRA to “provide to each applicant who does not decline to register to vote the same degree of assistance with regard to the completion of the registration application form as is provided by the office with regard to the completion of its own forms, unless the applicant refuses such assistance,” two of these same entities — OAAS and LGEs — have not done so. (Doc. 360-1 at 23-24; accord Doc. 346-1 at 23-24; see also, e.g., Doc. 444 at 2, 17-19, 37-40, 51-52.)
Third, even as § 20506(a)(4)(A)(iii) mandates that “at each” VRA that entity “accept[ ] ... completed voter registration application forms for transmittal to the appropriate State election official” and § 20506(d) sets precise deadlines, a VRA “may not simply direct an applicant to
Fourth, in defiance of the NVRA’s tenth section and the Fifth Circuit in Scott, the SOS “continues to disavow his authority and responsibility to ensure statewide compliance with the NVRA,” (Doc. 360-1 at 29; accord Doc. 346-1 at 29; see also Doc. 444 at 54-56), as suggested by the “facts” uncovered so far, see supra Part Part II.C.2.a. For example, SOS “willingly allowed DCFS and DHH to flout” his own NVRA rules “for more than two years because those agencies repeatedly questioned the SOS’s authority to issue the rules.” (Doc. 360-1 at 29-32; accord Doc. 346-1 at 29-32.
The US makes two more legal points. First, it insists that preclusion does apply to the Scott Court’s findings as to Defendants, but that preclusion does not bar it from introducing evidence of pre-Scott noncompliance or this Court from considering additional relief appropriate to address the Defendants’ past and present noncompliance, regardless of the Amended Injunction. (Doc. 360-1 at 33-37; accord Doc. 346-1 at 32-37; see also Doc. 444 at 51-54.) Second, the US emphasizes that the very fact that Defendants have continued to defy the NVRA supports its present suit’s unique remedial request. As it explains, “[t]he United States is seeking different and more tailored declaratory and injunctive relief than what the Scott court granted to the private plaintiffs in that ease — precisely because, as the uneontro-verted evidence in this case shows, the Scott court’s remedial order was not sufficient to prevent Louisiana’s continued noncompliance with the NVRA or to remove the lingering impact of Louisiana’s longtime noncompliance with the NVRA.” (Doe. 360-1 at 37-38; accord Doc. 346-1 at 37-38; see also Doc. 444 at 6.) Three years after the Scott Matter began, the evidence establishes that “simply requiring Defendants to certify generic compliance with the NVRA, without imposing any mechanism for monitoring how such compliance is achieved and without specifying the particular actions that Defendants must take to remedy th[ose] violations, is insufficient.” (Doc. 360-1 at 38; accord Doc. 346-1 at 38; see also Doc. 444 at 6.) With Defendants’ recent history having underscored the ineffectiveness of the Scott Court’s chosen remedy, a new one is now appropriate. (Doc. 360-1 at 38; accord Doc. 346-1 at 38; see also Doc. 444 at 6.)
In general, even while repeatedly insisting on the strict application of preclusion law to bar this suit by the US, (Doc. 398 at 1-2, 38-42; Doc. 399 at 1-2, 38-42; Doc. 400 at 10-11; Doc. 402 at 17), and . emphasizing the unfairness and wastefulness effectuated if this Court was not to do so, (Doc. 398 at 42-48; Doc. 399 at 42-48; Doc. 400 at 11, 17), DCFS and DHH advance five other
Second, Defendants contest every “fact” collected by and relied upon by the Plaintiff in the US’ MSJ. (Doc. 398 at 4; Doc. 399 at 4.) By Defendants’ reckoning, their current efforts “far exceed the ‘reasonable effort’ standard imposed” by the NVRA; only “discrete and isolated events” in contravention of the NVRA can be supported. (Doc. 402 at 5-6, 12; Doc. 398 at 7; Doc. 399 at 7.) Third, Defendants maintain that their every past effort has already been “litigated to final judgment in Scott,” (Doc. 398 at 9; Doc. 399 at 9), a position that they promptly undermine, (Doc. 398 at 10-12; Doc. 399 at 10-12).
Throughout their papers, Defendants rest on their asserted achievement of “substantial compliance” by those VRAs involved — and those not involved — in Scott. (Doc. 398 at 10-21, 26-29; Doc. 399 at 10-21, 26-29; Doc. 400 at 10-11; Doc. 402 at 5-6, 10-12.) In this vien, the absence of any formal complaint by an applicant is repeatedly stressed. (Doc. 398 at 26; Doc. 399 at 26; Doc. 402 at 15.) Any more burdensome duties mined from the NVRA by the US, in turn, are simply unsupported by the Act’s plain text. (Doc. 398 at 18-25; Doc. 399 at 18-25; Doc. 402 at 6-15.)
Fourth, DHH first denies its responsibility for the LGEs’ alleged violations of the NVRA and then labels the US’ allegations as to these creations be wholly “unsubstantiated.” (Doc. 398 at 29-38; Doc. 399 at 29-38.) Finally, returning to their preclusion arguments, Defendants contend that the “law dictates denial of the [G]ov-ernment’s proposition that this Honorable Court revisit the Defendants’ past violations in order to fashion a remedy in this case.” (Doc. 398 at 49-53; Doc. 399 at 49-53; Doc. 400 at 9-11.) Too little evidence of unwillingness to comply, in their view, exists to justify the kind of extensive monitoring that the US now demands. (Doc. 398 at 49-53; Doc. 399 at 49-53; Doc. 400 at 11.) With their final motion in opposition, Defendants reiterate these points, concluding: “There is no occasion in this case for the requested intrusion into the [state] government’s sovereignty.” (Doc. 402 at 18.)
IV. APPLICABLE STANDARDS
A. RULE 12(b)
Rule 12(b)(1) requires a federal court to dismiss an action over which it “lack[s] subject matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). The lack of such consti
“The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.” Ramming v. United States,
Rule 12(b)(6) permits dismissal for- “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). The analysis mandated by Rule 12(b)(6) analysis incorporates the pleading standard articulated in Bell Atlantic Corp. v. Twombly: “To pass muster under Rule 12(b)(6), [a] complaint must have contained enough facts to state a claim to relief that is plausible on its face.” Reece v. U.S. Bank Nat’l Ass’n,
In the Fifth Circuit, “[generally a res judicata contention cannot be brought in a motion to dismiss; it must be pleaded as an affirmative defense.” Test Masters Educ. Servs., Inc. v. Singh,
B. RULE 12(c)
Pursuant to Rule 12(c), “[ajfter the pleadings are closed — but early enough not to delay trial — a party may move for judgment on the pleadings.” Fed. R. Crv. P. 12(c); Lillian B. v. Gwinnett Cnty. Sch. Dist.,
C. RULE 56
Per Rule 56(a), summary judgment is appropriate “if the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Wilson v. Tregre,
Still, “[w]hen both parties have submitted evidence of contradictory facts,” Boudreaux v. Swift Transp. Co., Inc.,
So constrained, by Rule 56, this Court must “give credence to the evidence favoring the nonmovant as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.” 9A WRIGHT, supra, § 2529. To wit, although this Court “should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe.” Reeves,
D. OVERVIEW: PERTINENT PRINCIPLES OF STATUTORY INTERPRETATION
Statutory interpretation begins with the enacted text, and a court’s review must terminate if that language is both plain and unambiguous. E.g., Roberts v. Sear-Land Servs.,
In ascertaining a statute’s degree of ambiguity or plainness, an interpreter must attend to “the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson,
For decades, numerous linguistic, semantic, and syntactic canons have been utilized in this exercise. See generally ANTonin Scalia & Bryan A. Garner, Reading Law: The Inteepretation of Legal Texts (2012). Even if a statute has been found both plain and unambiguous by means of such analysis, courts may reject that meaning’s application if: (1) an absurdity would result; (2) clear and incontrovertible evidence of contrary legislative intent exists; (3) an “obvious clerical or typographical error[ ]” is to blame; or (4) a constitutional conflict would arise. See, e.g., Clark v. Martinez,
V. DISCUSSION
A. THRESHOLD QUESTIONS: RES JUDICATA, IMMUNITY, AND MOOTNESS
Before considering the motions for summary judgment filed by Schedler and the US, this Court must determine whether three separate doctrines — the principles of preclusion and of mootness and the extent, if any, of LA’s constitutional immunity— compel the Complaint’s dismissal. In this analysis, Rule 12 governs. (See, e.g., Doc 340-42, 345.) Accordingly, this Court must grant a presumption of truth to every factual allegation made by the US, the non-movant, and must confíne itself to the pleadings or any documents incorporated by reference. See supra Part IV.A-B; see also, e.g., Chambers v. Time Warner, Inc.,
Defendants’ position is straightforward. In their view, their “substantial compliance” with the NVRA in Scott’s aftermath moots the US’ current suit, as it is partly predicated on their pre-Scott misdeeds. (See, e.g., Doc. 340-1 at 1-4; Doc. 407 at 1.) Similarly, as the Scott Matter involved the same issues and was litigated by plaintiffs aligned with the US, claim and issue preclusion foreclose the continuance of this litigation. (See, e.g., (Doc. 340-1 at 4; see also Doc. 185 at 13-15; Doc. 407 at 14-15.) LA alone, in turn, insists on its immunity from suit under the NVRA, pointing to both the Eleventh Amendment and the alleged absence of explicit statutory authority for such suit. (See Doc. 341.) If preclusion does indeed apply, dismissal of some discrete issues should likely follow, and if LA’s position is not legally mistaken, its dismissal as a party would be mandatory. However, as shown below, preclusion cannot foreclose this action in its entirety, and neither the Eleventh Amendment nor the NVRA absolve LA of liability for this law’s violation.
1. Preclusion as to the US
a. Introduction: Control and Virtual Representation
As used by the Parties here, (Doc. 340-1 at 3), and as widely accepted,
Regardless of the form of preclusion applicable, an effective congruence of interest between a former litigant and the present party is required. See, e.g., Taylor,
For two reasons, this Court cannot preclude the US from re-litigating those factual and legal allegations not definitively adjudicated by the Scott court and Defendants’ allegedly ongoing noncompliance with the NVRA.
b. Insufficient Evidence of Control
First and foremost, despite the US’ obvious interest in the Scott litigation, its involvement was simply too minimal for this Court to conclude that it “assume[d] control over [that] litigation,” Montana v. United States,
Beyond this oft-cited example, due to this high standard, only a handful of other examples can be found in the case law. In one famed case — Montana v. United States — the requisite control by the government was indeed found. Montana,
Here, no such overwhelming evidence of the domination required by Montana and its progeny appears in either case’s docket. That the US filed a single statement of interest and a single amicus brief and presented a five-minute argument before the Fifth Circuit does not show that it so tightly managed and supervised the Scott Plaintiffs’ litigation. Yet, no more than these few facts have been shown. (Doc. 185 at 9-10; see also Doc. 340-1 at 4.) Nor does the unproven allegation that a US attorney observed the Scott proceedings and conferred with counsel for the Scott Plaintiffs throughout trial, (Doc. 185 at 10 n.37; see also Doc. 340-1 at 4), demonstrate that the US dictated these private persons’ every move or framed their every argument. See, e.g., United States v. Davis,
True, the US’ actions do indicate its interest in the Scott Matter and even its hopes for the success of these private actors. However, this fails to prove that the US possessed “effective choice as to the legal theories and proofs to be advanced in behalf of the party to the action.” Freeman,
In fact, in the decades since Montana, the Fifth Circuit has not bucked this pattern nor strayed from such a narrow construction. Thus, after enumerating three examples of “necessary” control — “the president and sole shareholder,” “parent corporation” which controls its “subsidiary,” and “an indemnitor defending] an action against an indemnitee” — the Fifth Circuit once warned: “[L]esser measures of participation without control do not suf
Thus it is not enough [that] the nonparty supplied an attorney or is represented by the same law firm; helped to finance the litigation; appeared as an amicus curiae; testified as a witness; participated in consolidated pretrial proceedings; undertook some limited presentations to the court; or otherwise participated in a limited way.
Id.-, accord, e.g., Hinsley v. Boudloche (In re Hinsley), No. 97-20967,
Viewed in toto, the facts indicate nothing more than the US’ bare interest, the evidence of supposed control presented by Defendants discounted by the Fifth Circuit in its distinct precedents, including Benson & Ford, Inc. v. Wanda Petroleum Company,
c. Insufficient Indicia of Virtual Representation
Similarly, this Court cannot regard the Scott Plaintiffs as having been the US’ “virtual representatives,” as Defendants have also repeatedly maintained. As the Supreme Court and Fifth Circuit have stressed, this concept contemplates only a limited set of relationships: estate beneficiaries bound by administrators, presidents and sole stockholders by their companies, parent corporations by their subsidiaries, and a trust beneficiary by the trustee. Taylor, 553 U.S at 895,
Even when the broadest definition of “virtual representation” is utilized, the US does not fall within it. Obviously, the US was not the Scott Plaintiffs’ estate or trust beneficiary or alter ego, and Defendants have yet to allege the existence of such a legal relationship. Furthermore, despite its interest “in the same questions or [in] proving the same facts,” Eubanks,
d. Other Relevant Considerations
Two more principles favor non-preclusion in this case, further buttressing this Court’s preceding analysis. First, as the Supreme Court has recently noted, “[the] development of new material facts can mean that a new case and an otherwise similar previous case do not present the same claim.” Whole Woman’s Health,
Second, “even when the traditional prerequisites for collateral estoppel are satisfied,” a court retains “broad discretion” to decide whether it may be applied. Collins v. D.R. Horton, Inc.,
e. Conclusion
Based on the foregoing, this Court declines to permit Defendants to make use of the Scott court’s findings against the US. See, e.g., Donovan v. Cunningham,
2. LA’s Immunity
Invoking the NVRA and the Constitution, LA denies its liability for any statutory infraction. Yet,- neither argument can withstand close scrutiny for three reasons.
First, LA misconstrues the NVRA’s constitutional basis. As its history attests and as courts have recognized, the NVRA was deliberately and expressly anchored in the Elections Clause. S. Rep. No. 103-6 at 2-3; Ass’n of Cmty. Orgs. for Reform Now,
This constitutionally bestowed power “is paramount, and may be exercised at any time, and to any extent which it deems expedient; and so far as it is exercised, and no farther, the regulations effected supersede those of the State which are inconsistent therewith.” Ex parte Siebold,
Second, the Eleventh Amendment does not apply to this particular suit on its own explicit terms. Per this oft-cited provision, “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const, amend. XI. As written and construed, it does not bar suits brought by the United States itself. See, e.g., Alden v. Maine,
Of course, had the NVRA been silent as to a state’s responsibilities or liability, LA may have been immune from its reach. Having earlier defined “State” as “a State of the United States and the District of Columbia,”
In the context of the NVRA, only one case, promptly reversed, has held differently. Missouri,
Although the NVRA’s text demands this result as a matter of supreme federal law, this Court also finds support in Louisiana’s “fundamental law,” Graham v. Jones,
3. Mootness
a. General Doctrine’s Application
Pursuant to Article III of the Constitution, a federal court’s jurisdiction is limited to live cases or controversies. U.S. Const, art. Ill, § 2; Tex. Office of Pub. Util. Counsel v. F.C.C.,
Since correction of a prior and illegal practice may dissolve a parties’ conflict, such cessation may occasionally moot an otherwise active ease. Despite this principle, however, “[w]hen defendants are shown to have settled into a continuing practice ... courts will not assume that it has been abandoned without clear proof,” for “[i]t is the duty of the courts to beware of efforts to defeat injunctive relief by protestations of repentance and reform.” United States v. Or. State Med. Soc’y.,
Guided by the “general rule that voluntary cessation of a challenged practice rarely moots a federal case,” City News & Novelty,
In this regard, the US does not stand alone, as Defendants themselves have made two important concessions. First, they have repeatedly admitted that “isolated” and “discrete” acts of noncompliance continue to occur in spite of the First and Amended Injunctions. (See, e.g., Doc. 398 at 7; Doc. 399 at 7; Doc. 402 at 6, 12; Doc. 407 at 7-8, 16-17.) To DCFS and DHH, these events appear insignificant. (See, e.g., Doc. 398 at 7; Doc. 399 at 7; Doc. 402 at 6, 12; Doc. 407 at 7-8, 16-17.) Still, even minor violations of the NVRA remain statutory infractions sufficient to trigger a live dispute over their significance, regardless of whether a “reasonable” or “full” compliance standard is utilized, see infra Part V.C. Second, as DHH and DCFS have again admitted, at least four VRAs were “not consistently providing voter registration with each application” as required by the NVRA and were not at issue in Scott. (Doc. 398 at 9-12; Doc. 399 at 9-12.) That the Scott Court required that DCFS and DHH certify their every program’s compliance with the NVRA does not change this admitted fact’s patent import: the US is now suing Defendants for existing and arguably ongoing violations that, by Defendants’ own admission, were never resolved in the Scott Matter. Accordingly, because this suit involves at least some NVRA violations never previously ad
In point of fact, the Fifth Circuit’s reversal and remand of the Amended Injunction only supports this inference, as its binding edict has determined that the phrase “policies, procedures, and directives,” (Doc. 437, No. 2:ll-cv-00926-JTM-JCW), upon which Defendants so heavily rely as encompassing any and all possible programs, (See, e.g., Doc. 398), is not specific enough to reasonably measure at least one defendant’s adherence to the NVRA. Scott,
b. Exception for Repeatable Acts
Further strengthening this conclusion, a particular exception to the mootness doctrine bears special relevance to this proceeding. Generally, “[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief.” Los Angeles v. Lyons,
Consequently, assuming its predicates are met, no case involving a dispute “capable of repetition” will be deemed moot. See, e.g., Arcia,
Naturally, when parties actively dispute a certain law’s reach, repetition is more likely. Just as logically, “where the challenged conduct is a failure to act, it is difficult to determine with precision whether future conflicts will run their courses before being fully litigated, because the duration of the controversy is solely within the control of the defendant.” Biodiversity Legal Found v. Badgley,
In short, due to the repeatability of the purportedly illegal conduct alleged by the US, the importance accorded to the right at issue, and Defendants’ admissions of ongoing, if arguably minor, noncompliance despite the entering of two separate injunctions by another district court, the law’s longstanding exception for activities capable of repetition governs. See, e.g., Friends of the Earth, Inc. v. Laidlaw,
c. Sossamon’s Inapplicability
To the SOS, one case — Sossamon v. Lone Star State of Tex.,
Schedler, however, has overstated this case’s rather narrow holding. First, while the Fifth Circuit encouraged the display of “some solicitude” and recognized this rule’s validity, this “presumption of good faith” is applicable only “[without evidence to the contrary.” Sossamon,
In this case, though derided as isolated and minor, familiar NVRA violations have reoccurred, and discrete and new legal harms have been exacted by Defendants’ own admissions. See supra Part Il.C.a. In addition, no such “voluntary cessation” occurred here, as every Defendant’s compliance post-dates the inauguration of the Scott Matter. In this regard, Schedler’s recent position before the Fifth Circuit cannot be ignored, for his own apparent inability to identify every “policy” and “procedure” encompassed by the Amended Injunction leaves this Court unable to assume that the kind of genuine and concrete change required by the NVRA could have taken place.
B. STATUTORY CONSTRUCTION: NVRA AND REMOTE TRANSACTIONS
1. Introduction
In his MSJ, Schedler urges this Court to read § 20503(a) as constricting the scope of § 20506.
In point of fact, however, Section 7’s unambiguous import can be discerned by use of ordinary tools of interpretation. See, e.g., Ga. State Conf. of N.A.A.C.P.,
In this analysis, this Court adheres to four interpretive principles. First, it “must read the statute as a whole, so as to give effect to each of its provisions without rendering any language superfluous,” Bustamante-Barrera v. Gonzales,
2. Application: NVRA’s Text and Context
Once these tools are applied, the text and structure of the NVRA compel a specific understanding of Section 7(a)(6), the one advanced by the US. Undeniably, Section 4 sets forth the states’ “general” responsibilities and, in relevant part, only requires a state to establish “procedures to register to vote ... by application in person” at the VRAs. 52 U.S.C. § 20503(a) (emphasis added). Just as surely, Section 7(a)(4) lists three services that must be available “Mi each” VRA. Id. § 20506(a)(4) (emphasis added). The word “at,” one court has observed, is “used as a function word to indicate presence or occurrence in, on, or near,” so that Section 7(a)(4) may rightly be read as “indicating] that Congress intended for the[] three services [specified therein] to be made available at the physical location of the voter registration agency.” Ferrand v. Schedler,
Necessarily, therefore, this choice of prepositions and prepositional phrases is decisive and restrictive, and these paragraphs’ unvarnished text thus establishes physical presence as these provisions’ critical requirement. See, e.g., Reiter v. Sonotone Corp.,
Textually, Section 7(a)(6), the one provision at issue in the Parties’ dispute over the NVRA’s coverage of remote transactions, differs from Sections 4(a)(3) and 7(a)(4), As already discussed, each of the latter sections contains the phrase “in person” or “at each ...and no reasonable linguistic debate beclouds these phrases’ ordinary meanings. Cf. e.g., Muscarello v. United States,
In contrast, unlike Section 4(a)(3) and Section 7(a)(4), Section 7(a)(6) contains neither the phrase “in person” nor the preposition “at.” 52 U.S.C. § 20506(a)(6); see also Ferrand,
Due to this patent fact — that at least two other sections of the same statute included language establishing locational limitations on a particular duty by certain VRAs — this Court is “bound to respect these different treatments,” “limiting the applicability of’ Section 4(a)(3) and 7(a)(4) and “declining to infer a limit where Congress chose not to include one” in Section 7(a)(6). Ga. State Conf. of N.A.A.C.P.,
Three other textual characteristics of Section 7(a)(6) specifically and the NVRA as a whole support this interpretation.
However, as a structural matter, Section 7(a)(6) is neither a subsection nor a sub-part of either provision. Therefore, it should not and cannot be subsumed into visibly distinguishable parts of the NVRA. See, e.g., Pirani v. Baharia (In re Pirani),
Second, Section 7(a)(6) characterizes its obligations as “in addition” to any others imposed by the NVRA and specifies a series of duties that arise from “each application” and thus every transaction. 52 U.S.C. § 20506(a)(6). In other words, no physicality limitation, such as “each application ... submitted in person or at the voter registration agency,” appears in this section. Id. The inclusion of this phrase and this subsection’s reference to “each application” evidences a sure intent: “[Wjhile all voter registration agencies are required under Section 7(a)(4) to make basic voter registration services available” at their physical location, “Section 7(a)(6) articulates an additional set of obligations that mandatory public assistance offices owe to their clients during every transaction.” Ferrand,
If this Court decided differently, as Defendants now urge, it would once more effectively amalgamate separate sections and thereby “rob” varied words and phrases of their distinct import, Reiter,
Finally, as its first two words announce, Section 4(a) sets forth the states’ “general” obligations. 52 U.S.C. § 20503(a). Subsequent sections, such as Sections 5 and 6, provide a far more specific set of obligations. In such cases, especially considering the other textual differences already noted, jurisprudence compels this Court to honor Section 7’s specific language and hold the NVRA to cover what its text also commands: remote transactions. See, e.g., RadLAX Gateway Hotel LLC,
3. Application: NVRA’s Purposes
Under modern jurisprudence, if a statute’s text is plain and unambiguous,
As the NVRA’s second section declares and as the legislative history attests, its primary purpose was to “increase the number of eligible citizens” to register to vote. 52 U.S.C. § 20501(b)(l)-(2); H.R. Rep. No. 103-9, at 2; S. Rep. No. 103-6, at 13; see also supra Part II.B. Historically, “[rjegistration rules were introduced in most states in the latter part of the 19th Century as a means of enforcing voting requirements in response to immigration, urbanization, and, in the South, the enfranchisement of African-Americans under the Fifteenth Amendment to the U.S. Constitution.” R. S. Montjoy, The National Voter Registration Act of 1993, 5 S.C. Policy Forum 4, 7 (1994). With the NVRA, Congress addressed this past by attempting to ensure (1) that no state would be able to restrict its agency registration program, and (2) that all states would have an agency registration program that would not discriminate against a distinct portion of the population. H.R. Conf. Rep. No. 103-66, at 19 (1993). With this end in mind, Section 7 was designed so as to increase registration of “the poor and persons with disabilities who do not have driver’s licenses and will not come into contract with the other principal] placets] to register under this Act.” Id. Registration accuracy was an explicitly stated goal of the NVRA,
Without any textual foundation, see supra Part V.B.2, restricting the reach of Section 7(a)(6) to only in-person transactions would directly undermine this aim’s realization. If this Court now adopts the SOS’ current reading, voting registration opportunities would suddenly be limited to in-person visits in a world in which many applications for services and public assistance occur online or by telephone. See U.S. Election Assistance Comm’n, 2012 Statutory Overview Report 23 (1993); U.S. Election Assistance Comm’n, The Impact of the National Voter Registration Act of 1993 ON THE ADMINISTRATION OF ELECTIONS FOR FEDERAL OFFICE 2011-2012: A REPORT TO the 113th Congress 7 (1993). Conversely, a construction of Section 7(a)(6) which encompasses remote transactions better comports with this objective, maximizing opportunities for voter registration in this more virtual world. Ga. State Conf. of N.A.A.C.P.,
4. Application: Remaining Issues — Absurdity and Mootness
As a final argument against this reading, the SOS emphasizes its absurdity and impractieality. (See, e.g., Doc. 336-5 at 12.) True, “[t]he plain meaning of legislation should be conclusive, except in the rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.” Ron Pair,
At the same time, this Court rejects the US’ mootness argument. (Doc. 382 at 2-6; see supra Part III.D.) Presently, the US contends the SOS has conceded this point based on the McRitchie Deposition. (Id.) But, Defendants contest this fact, and this Court will not now disregard this decisively obvious disagreement. (See Doc. 395 at 3-8.) The fact that various state entities have previously conceded the applicability of the NVRA to remote transactions, moreover, cannot moot this issue of statutory interpretation. Whatever his agency has previously averred, the SOS now declares differently, (Doc. 336-5 at 8-13), joined by DCFS and DHH, (See, e.g., Doc. 38 at 12-13). Thus, the dispute is real, the stakes clear, with Defendants determined to defy the US’ construal of the exact same statute. Here, because “the relief sought would, if granted, make a difference to the legal interests of the parties,” this case cannot be regarded as moot. See, e.g., Air Line Pilots Assn., Int'l v. UAL Corp.,
C. STATUTORY CONSTRUCTION: DEFENDANTS’ ALLEGED PAST AND ONGOING NONCOMPLIANCE WITH THE NVRA
Three separate issues are raised by the US’ MSJ and Defendants’ responses. First, Defendants argue that the NVRA requires no more than “reasonable effort[s]” at achieving “substantial compliance,” while the US points to an absence of statutory support for this standard. Second, both DCFS and DHH insist on their absence of liability for any NVRA-viola-tions by any LGE; naturally, the US disagrees. Third, as res judicata precludes Defendants from re-litigating the factual and legal determinations made by the Scott Court and with its recently discovered evidence indicating Defendants’ past and ongoing noncompliance, the US argues that Rule 56 demands judgment in its favor. Defendants, of course, disagree. This Court considers each argument in order.
1. Section 7’s Standard
a. Statutory Criterion
Section 7(a)(6) speaks without qualification and ambiguity as to a state’s discrete responsibilities. It reads:
A voter registration agency that is an office for such service or assistance in addition to conducting voter registration shall ...
(A) distribute with each application for such service or assistance, and with each recertification, renewal, or change of address form relating to such service or assistance—
(i) the mail voter registration application form described” in § 20508(a)(2) ...
(B) provide ... [a certain type of voter registration form] ...; and
(C) provide to each applicant who does not decline to register to vote the same degree of assistance with regard to the completion of the registration application form as is provided by the office with regard to the completion of its own forms, unless the applicant refuses such assistance.
52 U.S.C. § 20506(a)(6)(A)-(C); Valdez,
With ease, Congress could have modified the verbs “distribute” and “provide” in § 20506(a)(6) with the adverb “reasonably” or predicate liability on substantial noncompliance. In fact, it has done precisely this in dozens of statutes. See, e.g., 10 U.S.C. § 2684a(d)(7) (“substantially comply”); 11 U.S.C. § 523(c)(2) (“reasonably comply”); 12 U.S.C. § 1703(e) (“substantially complied with such regulations in good faith”); 15 U.S.C. §§ 634(f)(1)(A) (“substantially complied”); 16 U.S.C. § 1371(a)(5)(B)© (“substantially complied”); 42 U.S.C. §§ 254c-6(a)(3)(A)(iii) (“reasonable efforts”), 609(a)(8)(A)(i)(III) (“substantially comply”); 44 U.S.C. §■ 3507(j)(l)(B) (“reasonably comply”). Indeed, it even did so in Section 8 of the NVRA. 52 U.S.C. § 20507(a)(4); Velez,
But, in Section 7(a)(6) of the NVRA, no such precise language or even tangential synonym appears. Cf. United States v. Agrawal,
From the NVRA’s text, then, two conclusions, follow. First, Congress inputted a “reasonable effort” standard in another section of the same law; second, it has regularly placed such standards in sundry laws, including the NVRA’s eighth section, when inclined to do so, rather than relying upon the federal courts to discern or construct such a standard in stray bits of inherently problematic legislative history. Therefore, as precedent demands, the absence of any such mitigating language in Section 7(a)(6), the provision germane to this suit, must be deemed deliberate, and Congress’ choice not to inscribe such familiar and common terms must be accorded absolute deference. See, e.g., BFP v. Resolution Trust Corp.,
In accordance with these precepts, and in light of the NVRA’s plainness, this Court reads Section 7 to prescribe strict compliance with its commands, finding no support for any other standard in the NVRA’s plain and unambiguous language. Cf., e.g., Marseilles Homeowners Condo. Ass’n v. Fid. Natl Ins. Co.,
b. Defendants’ Insufficient Counters
Conceding the absence of such qualifiers as “reasonable” or “substantial,” Defendants direct this Court both to snippets within the NVRA’s legislative history and to the narrow ambit of the First Injunction. (See, e.g., Doc. 398 at 5-6; Doc. 399 at 5-6.) However, their reliance on these sources is insupportable for two reasons. First, as Defendants themselves argued as to the relationship between Sections 4 and 7, see supra Part V.B, courts may not “resort to legislative history to cloud a statutory text that is clear,” Ratzlaf v. United States,
Here, Section 7(a)(6) does not establish “reasonable effort” or “substantial compliance” as sufficient. Such language is not in the statute; nothing within the NVRA’s thirteen sections disturbs this pregnant silence. See, e.g., Abrego v. Dow Chem. Co.,
Obliged to do no more than interpret and apply Section 7(a)(6) alone, this Court cannot amend it by introducing into its plain text a foreign standard. See McMellon v. United States,
(4th Cir.2004) (Niemeyer, dissenting in part). Just as it cannot invent one, this Court cannot transpose one from conference and committee reports.
Second, Defendants seem to have mis-characterized the Scott Court’s ruling. As its findings reveal, that court never concluded that Defendants’ “substantial compliance” satisfied the NVRA. Rather, this fact did no more than mitigate against a certain remedy, i.e. monitoring, with this court specifically concluding: “Ultimately, this Court finds that because Defendants are only in substantial compliance, and not in full compliance, there is some potential danger that future violations may occur.” (Doc. 436 at 34, No. 2:11-cv-00926-JTM-have contended. In page after page, it stressed Defendants’ failure to achieve “full compliance with the [NVRA’s] mandates” and left no doubt about such failings’ illegality under this strict statute; Defendants’ substantial compliance and reasonable efforts swayed the Scott Court only as to the remedy that it ultimately fashioned. (Id. at 25, 27, 34.) Like the Scott Court, this Court will not revise the NVRA and require no more than substantial compliance and reasonable effort by Defendants. However harsh or impractical such a standard may strike the Parties,
2. DHH’s Liability for LGEs’ Actions
Just as this state cannot evade its obligations under federal law by means of delegation, see supra Part V.A.2, neither can DHH do so by private contract. See, e.g., United States,
Under the NVRA, an entity providing “behavioral health and developmental disabilities services” must be classified as a VRA. 52 U.S.C. § 20506(a). Read in conjunction, both Louisiana law and the NVRA compel this Court to hold DHH responsible for the violations of its chosen agents when the power to appoint, to monitor, and to maintain rests upon it alone and when each agent receives payment from LA by virtue of its contracts. Other courts have similarly ruled as to Medicaid
3. Propriety of Summary Judgment
Rule 56 requires a court to enter judgment for a movant whenever “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is “genuine” so long as “the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” and a fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson,
As such, only a few facts matter to ascertaining the existence of an actionable violation. First, Defendants have conceded that “isolated instances” of noncompliance persist, see supra Parts III.B, III.E, V.A.1, and not even the Scott Court found them to be in “strict compliance” with the NVRA, (Doc. 436 at 34, No. 2:ll-cv-00926-JTM-JCW). In addition, Defendants have acknowledged that multiple violations predating the First Injunction were not actually ligated in Scott, and the Scott Court certainly could not have determined the significance of the post-Scott violations that Defendants themselves concede have taken place. (See, e.g., Doc. 398 at 9; Doc. 399 at 9; Doc. 402 at 7.) By definition, even a fraction of such established and incontestable facts would entitle the US to relief pursuant to § 20510(a) based on the plain meaning of § 20506(a)(6).
Yet, the US now seeks a remedy denied to the Scott Plaintiffs: ongoing monitoring of the various Defendants’ NVRA efforts. Where a state or its subordinate agencies “openly and plainly refuses to comply with the NVRA,” such monitoring may be proper. True the Vote,
In such cases, caution is due, for when such a far-reaching injunction is threatened, proportionality greatly matters, and a remedy must be carefully tailored to achieve the federal law’s ends in the least obtrusive possible manner. Cf. Scott,
D. PROBLEM PRESENTED BY MCRITCHIE’S ERRATA
Rather unexpectedly, one more issue has arisen during the Parties’ last round of briefing. In the US’ Opposition to Schedler’s MSJ, the Government had relied on the deposition testimony of the SOS’ Rule 30(b)(6) designee, McRitchie, to buttress its contention that no live dispute now exists as to the NVRA’s coverage over remote transactions. (Doc. 420 at 1; see also Doc. 382 at 3-6.) According to the transcript, McRitchie testified that “as early as 2007, the SOS had instructed VRAs that ‘voter registration is always offered,’ regardless of the mode of transaction.” (Doc. 420 at 1-2; see also Doc. 382-2.) But, Schedler’s MSJ Reply, (Doc. 395), points the Court to a corrected version of McRitchie’s testimony: “In 2011, all training was limited to in person transactions.” (Doc. 395 at 9-10; see also Doc. 420 at 2.) Focusing on the same provision, the US characterizes this change as verboten under Rule 30(e), (Doc. 420 at 2-3), while the SOS defends its propriety, (Doc. 423 at 3-4). Per precedent and law, neither side can win this argument based on the few facts now available.
Rule 30(e) allows a deponent to review a deposition transcript and “[i]f there are changes in form or substance, to sign a statement listing the changes and the reasons for making them.” Fed. R. Civ. P. 30(e); Gonzalez v. Fresenius Med. Care N. Am.,
Regardless of the side chosen, even when a statement explaining the change has been proffered, a district court enjoys the discretion to order that a deposition be reopened so that the revised answers may be followed up on and the reason for the corrections explored. Poole,
VI. CONCLUSION
Long ago, the Supreme Court “recognized the elementary proposition upon which our structure of civil rights is based: ‘[The] political franchise of voting is ... a fundamental political right, because [it is] preservative of all rights.’ ” City of Mobile v. Bolden,
Passed in 1993, the NVRA represents one such congressional effort to safeguard and expand this republican right in language bare and clear. Once their many arguments have been distilled and their many motions perused, one issue lies at this case’s core: to what extent, if any, does Section 7 of the NVRA apply to these Defendants in light of its terms and another court’s adjudication of Defendants’ past — and admitted — violations. Through this thicket, well-settled jurisprudence provides a compass. The Scott Matter cannot bind the US, and while this case has not been mooted, the Defendants are bound in full both by the Scott Court’s findings and to Section 7’s unambiguously discrete and varied mandates. However impractical it
Nonetheless, despite the cogency of the evidence produced by the US, enough uncertainty beclouds the record to foreclose its victory under Rule 56 as to the remedy requested. Before permanent monitoring may be compelled, judgments regarding credibility and weight must still be made, for the US now seeks far more than the permanent injunction awarded by the Scott Court. Conversely, to the extent the US now seeks an order declaring Defendants in violation of Section 7 of the NVRA, that request must be granted, for violations have indisputably persisted even in Scott’s aftermath. Although they may be minor, they are nonetheless violations.
Accordingly, for the aforementioned reasons, this Court ORDERS as follows:
1. The five Dispositive Motions filed by the Defendants — the Motion for Partial Summary Judgment, (Doe. 336); the Motion to Dismiss Based on Res Judicata, Collateral Estoppel or Mootness, (Doc. 340); the Motion to Dismiss Pursuant to Rule 12(b)(1), (Doc. 341); the Motion to Dismiss by Secretary of State for Lack of Subject Matter Jurisdiction, (Doc. 342); and the Motion to Dismiss Pursuant to Rule 12(c), (Doc. 345) — are DENIED.
2. The United States’ Motion for Summary Judgment, (Doc. 346), is GRANTED IN PART and DENIED IN PART. This Court finds that Defendants have violated Section 7 of the NVRA, but the nature and extent of those violations remain issues to be tried. Therefore, this Court will not order any monitoring at this time. Instead, on or before September 7, 2016, at 5:00 p.m., Plaintiff and Defendants must submit simultaneous briefs regarding the remedies that they propose and how they propose to adjudicate any and all remaining issues. Each Party’s brief may not exceed ten pages, and DCFS and DHH may file only one shared brief. If further briefing or argument is deemed necessary, this Court will either solicit briefs or schedule a hearing.
3. On or before September 7, 2016, at 5:00 p.m., the Parties must submit a single joint document specifically listing and succinctly describing every alleged violation of the NVRA that either post-dates Scott or was not adjudicated by the Scott Court. For every alleged violation, numbered and identified, DCFS and DHH, together, and SOS may respond in detail; “deny” will be deemed insufficient. Each party must cite to specific portions of the record as support for the allegations or its denial. The required format appears as an appendix to this Ruling. No amendment to this document will be allowed absent this Court’s authorization.
4. On or before September 7, 2016, at 5:00 p.m., the Secretary of State is to make Ms. Catherine McRitchie available for deposition by the United States at his own expense. During this examination, the United States may freely explore any and all issues related to her recently submitted errata.
5. A status conference in this matter is scheduled for September 30, 2016, at 9:00 a.m. for the purpose of selecting a trial date.
Notes
.National Archives, Jefferson Papers (Mar. 28, 2016), http://founders.archives.gov/ documents/Jefferson/99-01-02-5005. Other founders shared this view. For example, in defending the United States Constitution ("Constitution”), "Publius” wrote:
The definition of the right of suffrage is very justly regarded as a fundamental article of republican government. It was incumbent on the convention, therefore, to define and establish this right in the Constitution. To have left it open for the occasional regulation of the Congress, would have' been improper for the reason just mentioned. To have submitted it to the legislative discretion of the States, would have been improper for the' same reason; and for the additional reason that it would have rendered [it] too dependent on the State governments
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The Federalist NO. 52, at 354 (Jacob E. Cooke ed.', 1961); see also 2 The Records of the Constitutional Convention of 1787, at 240 ■ (Max Farrand ed. 1966).
. In this ruling and order ("Ruling”), the specific provisions of the Act, set forth in 52 U.S.C. §§ 20501-20511 inclusive (formerly 42 U.S.C. §§ 1973gg-1973gg-10), are referred to in this order and ruling as "Section or "§ unless otherwise noted.
. On September 1, 2014, the NVRA provisions and all U.S. Code provisions relating to voter registration and elections were transferred to Title 52. No substantive changes were made through this recodification, and the sections’ colloquial titles, which derive from the public bill, were left unchanged. For helpful reference, .the new relevant provisions of the NVRA were recodified as follows:
See also True the Vote v. Hosemann, 43 F.Supp.3d 693 , 699 n. 1 (S.D.Miss.2014). As many filings in this matter predate this codification, the Parties’ citations do not always reflect the relevant provision’s present location. Throughout this Ruling, this Court will employ the present codification or, so as to avoid mind-numbing repetition, the various sections' colloquial names.
.Section. 1983 allows a private party to sue any person who "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States ... the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” of the United States. 42 U.S.C. § 1983. It is considered "the primary statute to bring constitutional claims against local governments and officials.” Sipp v. Giroir, Civ. No. 13-360,
. Mr. Ferrand subsequently withdrew as a plaintiff. (Doc. 126, No. 2:ll-cv-00926-JTM-JCW.)
. As explained further below, see infra Part II. A, two changes have occurred within the cast of Defendants. First, Louisiana ("LA,” "Louisiana,” or “State”) has now been added. Second, the various agencies' administrative heads have since changed. (Compare Doc. 1, No. 1 l-cv-00470-JWD-RLB, with Doc. 1, No. 11-cv-00926-JTM-JCW.)
. In this Ruling, citations to documents filed in the Scott Matter will include this case num
. In this Ruling, any reference to "Rule" or "Rules” is to one or more of the Federal Rules of Civil Procedure unless otherwise noted.
. Since this matter’s filing, DHH has changed its name to the Louisiana Department of Health. In this Ruling, the acronym DHH will stand for the relevant entity before and after its title change,
. The originally filed MSJ, (Doc. 346), which contained several typographical errors, was later substituted pursuant to this Court’s order.
. DHH filed a second opposition on March 28, 2016, (Doc. 425), regarding an eventually abandoned claim by the US that the NVRA extended to the U.S. Department of Agriculture’s Commodity Supplemental Food Program ("CSFP”), (Doc. 443). Logically and legally, any and all filings relevant to that issue are thus no longer relevant to this Court’s analysis.
.In substantive argument, Documents 398 and 399 are identical. The latter, however, includes supporting exhibits as attachments.
. In referring to "pre-Scott violations,” this Court means any and all violations not actually adjudicated in Scott and for which no factual finding was made. See infra Part II.C.2.
. For an explanation of this limited coverage, see infra note 21.
. While Greenstein no longer manages DHH, no motion to substitute has yet been filed. Despite this omission, DHH has in effect substituted Greenstein with Doctor Rebekah Gee ("Gee”), DHH’s current secretary. (See Doc. 398 at 1 & n.1; Doc. 399 at 1 & n.l.)
. Sonnier replaced Ms. Ruth Johnson ("Johnson”) as DCFS’ head on or about October 12, 2012. (Doc. 140.) She recently departed DCFS, (Doc. 398 at 1 & n.2; Doc. 399 at 1 & n,2.) Once more, though Sonier has not been formally substituted, DCFS has effectively done so in its recent filings. (Doc. 398 at 1 & n.2; Doc. 399 at 1 & n.2.) Ms. Marketa Waters ("Waters”) now stands in Sonnier’s official shoes. (Doc. 398 at 1 & n.2; Doc. 399 at 1 & n.2.)
.Though its holding is clear, the ultimate import of Arizona State Legislature v. Arizona Independent Redistricting Commission is subject to varying interpretations. Compare Samuel Issacharoff, Beyond the Discrimination
."The Congress shall have Power ... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” U.S. Const, art. I, § 8, cl. 18; McCulloch v. Md.,
. "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing [sic] in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const, art. VI, cl. 2.
. Nuance can complicate things', for in spite of this understanding, "the Constitution ... does not confer the right of suffrage upon any one.” Minor v. Happersett, 88 U.S. (21 Wall.)
. States that did not require registration to vote or allow election-day registration at polling places were exempt from the NVRA. 52 U.S.C. § 20503(b). These states were Idaho, Minnesota, New Hampshire, North Dakota, Wisconsin, and Wyoming. See 75 Fed. Reg. 47,729-01, 47,730 (Aug. 9, 2010).
. A different standard applies when Congress passes legislation pursuant to Section 5 of the Fourteenth Amendment or even the Commerce Clause. Cf. Gregory v. Ashcroft,
. This provision was so emphasized and deemed so significant that the NVRA has been colloquially known as the “Motor Voter Law.” See, e.g., Gonzalez,
. Section 20506(d) specifies the relevant transmittal deadlines. 52 U.S.C. § 20506(d).
. Of some significance, "[i]f a voter registration agency designated under paragraph (2)(B) provides services to a person with a disability at the person's home, the agency shall provide the services described in subpar-agraph (A) at the person’s home.” 52 U.S.C. § 20506(a)(4)(B).
. In the one exception it carves out to the duties it imposes, it refers to "a State.” 52 U.S.C. § 20503(b)(1) — (2); see also supra note 21.'
. On this score, a factual inconsistency appears in the Parties’ papers: Paragraph 104 of Document 1 says Scott first applied for SNAP in January 2010.
. Notably, a determination of the defects, if any, in CAFÉ’s compliance with the NVRA lay beyond the Scott Court’s scope. (Doc. 436 at 26, No. 2; 1 l-cv-00926-JRM-JCW.)
. “As of July 2013, and with some exceptions, OCDD no longer directly provides state-funded disabilities services to the public. DHH has outsourced the delivery and day-today administration of OCDD’s core client services to ten human services districts/authorities, also known as Local Governing Entities.” (individually, "LGE” and collectively, "LGEs”). (Doc. 360-2 ¶ 55 at 14.)
. The US argues that the SOS “continues to disavow his authority and responsibility to ensure statewide compliance with the NVRA." (Doc. 360-1 at 29; cf. Doc. 342.)
. As only one example, the US points to the Commodity Supplemental Food Program. As noted before, see supra note 11, the US has now dropped that claim.
. As SNAP is part of WIC, (See Doc. 398 at 8), any violations attributable to SNAP fall within the broader program.
. The hearing transcript appears in Document Number 455. In this Ruling, it will be cited by page and line, i.e. Hr’g Tr. 8:2-4, in accordance with standard practice.
. The Parties' arguments will be dissected in finer detail in the relevant sections of this Ruling. See infra Part V. This part offers up no more than a general preview.
. Indeed, LA had previously conceded to the existence of this Court's jurisdiction, (Doc. 38 at 2.)
. The distinction is partly academic, though still mandatory, as Rule 12(b)(6) and Rule 12(c) have been construed identically. See infra Part IV.B.
. This language echoes the state’s frequent responses to actions by private parties suing under Section 1983 of the U.S. Code’s forty-second title.
. This argument mirrors the one made in Schedler's MTD. (Doc. 342.)
. Even SOS acknowledges that such "post-Scott grievances” exist. (Doc. 415 at 1.)
. In one pertinent filing, the US has summarized other purportedly unresolved issues. (Doc. 189 at 19-20; see also Doc. 444 at 9.)
. In Schedler's MTD Reply, the SOS expands his argument. There, he "absolutely and without hesitation disavows an[y] obligation ‘to ensure statewide compliance’.” (Doc. 415 at 8.)
. Indeed, SOS appealed the Amended Injunction. (Doc. 415 at 17.) On June 15, 2016, the injunction was vacated because it was "insufficiently specific." Scott,
. In support of this argument, the US relies on the deposition of Ms. Catherine C, McRit-chie ("McRitchie”) ("McRitchie Deposition”). (Doc. 382; Doc. 420 at 1-2.) Schedler's Surre-ply attempts to supplement and correct this official's deposition pursuant to Rule 30(e). (Doc. 423.) The issue raised by this attempt are explored in the later portions of this ruling. See infra Part V.D.
. Whether these regulations are fully compliant with the NVRA is disputed. (Doc. 360-1 at 29 n.9; Doc. 346-1 at 29 n.9.)
. For example, in its reply, LA echoes its first and second dispositive motion, casting itself as an unnecessary and hence improper party. (Doc. 400 at 4-10.) The arguments
. DCFS’ Opposition to US’ MSJ contains substantial sections identical to those included in DHH’s First Opposition to US’ MSJ. (Compare Doc. 398 at 2-4, with Doc. 402 at 2-4.)
. See supra Part II. C.
. The preclusive effect of the Scott Court's findings as to all the Defendants is not open to reasonable question. Though DHH now avers otherwise, (Doc. 399 at 44-46), its earli
. Rather frequently, courts use the phrase "res judicata" to refer solely to claim preclusion, and "collateral estoppel” to refer to issue preclusion. See, e.g., Taylor v. Sturgell,
. "The doctrine of res judicata has never been as pithily or colorfully expressed as it was during the Civil War by a highly unlikely source. General Nathan Bedford Forrest, the semi-literate cavalry genius of the Confederacy, after twice refusing a soldier's request for a furlough, scribbled on the back of the form, 'I told you twicest Godamnit know.’ ” Gregory v. Chehi,
. These theories are not necessarily distinct. Meza v. General Battery Corp.,
. Some of the same reasons and a number of equally relevant cases appear later in this Ruling. See infra Part V.C.2.
.Because of this indisputable constitutional basis, Defendants’ repeated invocation of "federalism” is inapposite to the case at hand, obfuscating the requisite analysis. True, the states retain innumerable rights in this nation’s constitutional order, and they hold a most sacred and inviolate role as separate sovereigns. However, where the Constitution permits Congress to abrogate that immunity, Congress may do so, and the states must give way to a law so tethered. The NVRA is precisely such a statute. See supra Part II.B.
. Several states were exempted. 52 U.S.C. § 20503(b). LA was and is not one of them. See note 21.
. Another point ignored by Defendants is apposite. As one court observed, the appointment of an official is seemingly intended to ensure the existence of some state actor who can wield the power to rectify any violation alleged and noticed by private parties pursuant to § 20510(b)(1) — (2). Miller,
. The State itself admitted that it does not think the SOS’ special role "absolve[s]” it from liability. (Hr’g Tr. 8:19-20.)
. Courts often treat standing and mootness, two justiciability doctrines, as a subset of subject-matter jurisdiction. See, e.g., Genesis Healthcare Corp. v. Symczyk, — U.S. —,
. At the very least undermining Defendants' present posture, the Fifth Circuit summarized Schedler's argument thusly: "Schedler argues that the Amended Permanent Injunction is too vague to be understood because he ‘is not aware of any policies, procedures or directives maintained by the office of the Secretary of State, particularly any 'as revised' that the court might refer to in its order.’ ” Id. If he was so confused then, this Court remains skeptical that he — or any of the Defendants— can be said to have so fully complied with the NVRA’s every requirement as to moot every possible issue raised by the US in its pleadings.
.As the Fifth Circuit has also observed, the "capable of repetition, yet evading review” exception differs from "the voluntary-cessation exception to mootness,” with only the latter at issue in Sossamon. Id. at 325 n. 14. Here, SOS relies on the voluntary cessation exception, though this Court finds that no such cessation has transpired and invokes the former exception as an additional support for a conclusion already compelled by the mootness doctrine’s existing framework,
. A less significant distinction is statutory: Sossamon addressed official capacity claims under Section 3 of the Religious Land Use and Institutionalized Persons Act.
. While the Scott Court rejected this position, that part of the opinion was reversed on unrelated jurisdictional grounds.
. In contrast, as summarized above, see supra Part V.B.l, when multiple plain meanings can be conjectured, ambiguity is said to exist, and a statute's purpose, if well-known and obvious, may allow a court to select the apposite meaning from a. multitude of possibilities. United Sav. Ass'n of Tex.,
. Defendants have made no argument based on this purpose at any single point throughout these proceedings.
. It should be noted that the Fifth Circuit has implied "a demonstrated desire to comply” can affect the operation of the NVRA’s notice requirement, set forth in § 20510(b)(1), as to private plaintiffs. Scott,
. Even if this Court felt bound to weigh the legislative history, it does not find it to be as unambiguous as Defendants maintain. As Defendants note, {See, e.g., Doc. 399 at 7 n.21), the Senate Report does declare: "[P]rivate enforcement can encourage action to assure
. Revealingly, Defendants’ complaints echo those made by a minority of the Senate’s committee responsible for the NVRA's drafting. See S. Rep. No. 103-6, at 57. The minority, of course, lost in the bill’s final calculus.
. Schedler describes this case as follows:
The Fifth Circuit ... observed that witnesses sometimes make substantive missteps in deposition testimony which may be corrected with an errata sheet, provided
there is no indication of unreasonable and vexatious effort to multiply proceedings.
(Doc. 423 at 3.) By so doing, the Secretary oversells this case, as the Fifth Circuit did not restrict a court’s discretionary power to strike