On April 8, 2008 the United States Department of Justice (“DOJ”) informed the Arizona Department of Economic Security (“DES”) by letter of its intent to file an action pursuant
to the National Voter Registration Act of 1993 (“NVRA”), 42 U.S.C. 1973gg et
seq., and 28 U.S.C. 2201. The threatened action is based on an
investigation by the United States of the State of Arizona. DOJ believes it has obtained evidence of DES’ substantial non-compliance with Section 7 of the NVRA by failing to provide the required voter registration services at DES Family Assistance Administration (“FAA”)
DES disputes this contention, and nothing in this Agreement shall be deemed to be
a finding or an admission by DES that it has violated the NVRA. The parties,
through counsel, have conferred extensively and agreed that it is in the best
interest of all parties that this action be resolved without the expense of
protracted, costly, and potentially divisive litigation. Moreover, the parties
seek to ensure that all DES offices subject to Section 7 of the NVRA offer voter
registration opportunities in compliance with the NVRA. Accordingly, in
consideration of the DOJ’s forbearance of suit and the other listed consideration,
the parties have entered into the following Agreement Concerning Standards and Monitoring
of Compliance with the National Voter Registration Act of 1993 (“Agreement”) as
an appropriate resolution of the threatened action.
The parties agree that:
The Federal Court has jurisdiction to enforce the provisions of the NVRA, and
the Federal Court would have jurisdiction of an action brought by the United
States to enforce any of the terms of this Agreement pursuant to 28 U.S.C. 1331,
1345, and 2201, and 42 U.S.C.
DES is subject to the requirements of the NVRA.
DES has the authority to require that all local FAA offices comply with the NVRA.
It is DES’ goal to ensure that all DES offices subject to the NVRA offer voter
registration opportunities in compliance with the NVRA. In an effort to achieve
that goal, this Agreement focuses on Section 7 of the NVRA and DES’ activities as
Distribution of applications for voter registration for elections for Federal
office with each application, recertification, renewal, or change of address;
Provision of a form to DES clients that contains the information required by
Section 7(a)(6)(B) of the NVRA with each application, recertification, renewal,
or change of address concerning DES’ benefits or services;
Provision of assistance in filling out voter registration applications; and
Acceptance of completed registration applications and the forwarding of the completed registration applications to the County Recorder’s Offices of the various counties.
Arizona is a covered jurisdiction under Section 5 of the Voting Rights Act and
all current policies, procedures, and forms relating to the NVRA, and any changes
or additions to such policies, procedures, and forms relating to the NVRA have
been and must be precleared by the DOJ prior to implementation under this
Agreement. DOJ acknowledges that such preclearance procedure may affect the
timeframes set out in this Agreement.
The parties acknowledge that this Agreement is, in and of itself, a change that
requires pre-clearance by the DOJ under Section 5 of the Voting Rights Act.
DOJ agrees to grant expedited consideration of the pre-clearance submission
for this Agreement.
“Employee” means a person hired or an agent employed by DES to provide public assistance
to residents of Arizona.
“Information about voter registration” or “voter registration opportunities” means
information about the opportunity to register to vote, the availability of
voter registration applications, and assistance in completing applications.
“Public Assistance” means cash assistance, food stamps, general assistance, and FAA’s
determinations of eligibility for medical assistance.
This Agreement shall remain in effect through May 1, 2011.
- ACTION PLAN
Attached to this Agreement as Exhibit 1 is FAA’s written plan (“Action Plan”) describing
in detail the actions DES has taken and intends to take to comply with each of
the provisions and requirements of this Agreement. DOJ shall review the Action
Plan in accordance with paragraph O.
Attached as Exhibit 2 is DES’ uniform pre-cleared policy pertaining to the
distribution, collection, transmission, and retention of voter registration
applications and forms containing the information required by Section 7(a)(6)(B)
of the NVRA. DES will modify this policy to accurately reflect that it includes
all public assistance programs as outlined in this Agreement. DES shall submit
any changes to the policy and the DOJ shall review this policy and any changes
to this policy, and any new policies and procedures, in accordance with paragraph O.
Attached as Exhibit 3 is a description of FAA’s mandatory, annual NVRA education
and training programs for each DES employee who is responsible for providing public
assistance through DES to Arizona residents. DOJ shall review these documents
in accordance with paragraph O. In addition, as of April 18, 2008 each
employee of FAA on active work status completed and attested to having
completed the training module on the NVRA attached as Exhibit 4 (including the
attestation page). All employees on annual, sick, or other leave will be
trained when they return to active work status.
- PROVISION OF FORMS
DES shall ensure that voter registration applications and forms described by
Section 7(a)(6) of the NVRA are made available on a regular basis in adequate
numbers so that DES employees who are responsible for providing public assistance
to Arizona residents do not run short of such applications and forms. Provided
however, the parties acknowledge that the County Recorders’ Offices maintain control
and distribute the forms pre-coded as originating from a public assistance office.
In the event that any County Recorders’ Offices cannot supply DES with an adequate
supply of pre-coded forms, DES will store, print, and provide forms that are not
- ASSISTANCE WITH FORMS
DES shall ensure that DES employees who are responsible for providing public
assistance to Arizona residents shall offer the opportunity to register to vote
with each application for service or assistance, including each application for
recertification, renewal, or change of address. DES employees shall also
provide to each applicant (including applicants for recertification, renewal,
or change of address), 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 DES with regard to the completion of its own
forms, unless the applicant refuses such assistance.
42 U.S.C. §
- TRANSMITTAL TIME LIMITS
DES shall ensure that agency employees who are responsible for providing public
assistance to Arizona residents accept completed voter registration
applications and transmit them to the appropriate County Recorders Offices no
later than 10 days after the date of acceptance, or if a registration
application is accepted within 5 days before the last day for registration to
vote in an election, the application shall be transmitted to the appropriate
State election official not later than 5 days after the date of acceptance.
42 U.S.C. 1973gg-5(d).
- APPLICATIONS BY MAIL OR ON-LINE
DES shall ensure that a Mail-in Application for Voter Registration is enclosed
along with each application, recertification, or renewal DES sends by mail
concerning the provision of public assistance. DES also shall ensure that within
4 months of the execution of this Agreement all on-line applications,
recertifications, or renewals concerning public assistance include information
regarding voter registration opportunities at DES, including the ability to
download a Mail-in Application for Voter Registration. DES also shall ensure
that all telephonic applications, recertifications, or renewals concerning
public assistance are accompanied by the provision of information regarding
voter registration opportunities, such as a message from FAA’s interactive
voice response (IVR) system as pre-cleared by the DOJ.
- CHANGE OF ADDRESS
DES shall ensure that all clients who notify DES of a change of address in
person at an FAA office receive an Application for Voter Registration, unless
the client declines the form. Change of address notifications that are received
at the DES/FAA change center will have an IVR system message that advises clients of
voter registration opportunities.
DES shall track, in detail, the extent to which employees who are responsible for
providing public assistance to Arizona residents are complying with the NVRA
and with the individual provisions of this Agreement. DES shall also notify
such employees when DES determines that they are not so complying, and shall take
appropriate personnel action against such persons when DES determines that they
have consistently or willfully failed to comply. DES shall track this
compliance as follows:
The Office of Program Management and Evaluation (“OPE”) staff will include
NVRA compliance in its ongoing and continuous evaluations of FAA local offices;
DES will conduct random calls to clients and staff on a quarterly basis to
determine compliance with DES policy and procedures on the NVRA;
Annual formal auditing by Audit Management Services (“AMS”) to determine
compliance with DES NVRA policy and procedures; and
FAA requires that all FAA local office managers conduct a random Standard
Operations Procedures Check (attached as Exhibit 5) on all FAA employees who
provide assistance directly to clients to determine, among other things,
compliance with the NVRA. Non-compliance with the NVRA is considered a
failure to perform the employee’s job responsibility and will be handled
as appropriate under applicable state personnel law.
- REPORTS AND MONITORING
- On April 1 of each year this Agreement is in effect, beginning
with April 1, 2009, DES shall submit to DOJ, at the address listed at the
end of this Agreement, a report, including:
- A general summary of compliance efforts described in the Action
Plan, detailing all steps taken to implement each of the provisions and
requirements of this Agreement listed in the Action Plan;
- The results of the tracking described in paragraph M in an annual
report to the DOJ at the address listed in this Agreement. The report shall
contain the results of the OPE report, the Formal Audit, the results of the
random calls, and employee compliance;
- Copies of any NVRA educational and training materials in addition
to those in Exhibit 3 that were used in the preceding period or that will be
used in the next period of this Agreement pursuant to Paragraph G; and
- A numerical count, for each local FAA, Vocational Rehabilitation
Administration, and Division of Developmental Disabilities office of:
a) Indicated that he or she would like to register to vote,
- The number of completed voter registration applications transmitted
from that office to the appropriate County Recorders offices; and
- The number of declination forms collected at that office on which
an Arizona resident:
b) Indicated that he or she would not like to register to vote,
or did not indicate whether he or she would like to register to vote (included
in the declination number).
Subject to paragraph P(3), within 120 days of the execution of this Agreement
DES shall submit to DOJ an interim report containing the information in N(1)
except for the Formal Audit referenced in M(3) and N(1)(b).
No sooner than 60 days after the
execution of this Agreement, the DOJ may audit DES’ compliance with Section 7
of the NVRA. DOJ may conduct a second audit no sooner than 90 days after it
notifies DES of the results of the first audit. Thereafter, the DOJ shall
conduct such audits no more than two times in every subsequent calendar year.
- DOJ shall:
- Notify DES of the results of any audit it performs under this
Agreement within 14 days after completion of the audit;
- The notification shall specify: the location of the offices; the names
and addresses of DES employees contacted; the substance of any client statements
(without identifying the clients); any alleged violations of the NVRA as to
each office and individual; whether the person was contacted personally or by
phone; the dates of the contacts; and
- In good faith provide to DES any other information it obtains during
the course of these audits in order to effectuate the purposes of and DES’
compliance with this Agreement.
- DES authorizes DOJ to:
- Conduct these audits without prior notice to DES;
- Contact DES employees, involved in activities covered by the NVRA,
- Call or visit local offices providing services covered by the NVRA,
undercover and without identifying its staff as DOJ investigators.
- DOJ REVIEW
DOJ agrees to review any document, report, process, or procedure, including the
training materials required by paragraph N(1)(c) (referred to collectively as
“documents”), submitted pursuant to this Agreement within 14 days of its
receipt of the documents. The parties shall work in good faith to obtain any
required preclearance so that it is not an impediment to DES’ compliance with
this Agreement. If DOJ has an objection to any document submitted under this
Agreement, DOJ shall notify DES within the 14-day period and shall follow the
process in paragraph P below.
If, at any time after the sixtieth day following the execution of this Agreement,
DOJ acquires evidence, by any means, establishing (a) a material breach by DES
with this Agreement, or (b) substantial non-compliance by DES with Section 7
of the NVRA, or any combination of these, DOJ may commence a lawsuit against
the appropriate parties alleging such breach or non-compliance upon 30 days
notice, during which time the parties reasonably shall endeavor to reach an
amicable resolution of said breach or non-compliance. Provided however,
that: (1) a substantial breach of paragraph N(1) shall, without limitation
or exclusion, be deemed to be material; (2) DES’ failure to comply with the
provisions of paragraph K shall not be considered evidence of breach or
non-compliance until 4 months have elapsed since the signing of this Agreement;
and (3) DES’s failure to comply with any provision of this Agreement because
it has not received DOJ’s pre-clearance under Section 5 of the Voting Rights
Act shall not be deemed a breach or non-compliance under this Agreement. DES
shall have at least sixty days after receiving the pre-clearance before DOJ
can audit DES on DES’ compliance under this Agreement based on DES’
implementation of the pre-cleared materials.
- COSTS AND ATTORNEY FEES
In any litigation arising out of a breach of this Agreement, each party shall bear
all of its own costs, expenses, and attorneys’ fees in the case.
- GENERAL PROVISIONS
Child and Family Protection Division
Acting Deputy Chief
Arizona State Attorney General
AMANDA E. GREGORY
1275 W. Washington Street
Phoenix, Arizona 85007
(602) 542-9948 (phone)
(602) 364-0055 (facsimile)
U.S. Department of Justice
Washington, D.C. 20530