THE UNITED STATES OF AMERICA,
Plaintiff,
v.
Civil Action No. 05-4391-CV-C-WAK
THE STATE OF MISSOURI;
ROBIN CARNAHAN,
MISSOURI SECRETARY OF STATE,
in her official capacity;
Defendants.
___________________________________
COMPLAINT
Plaintiff United States of America hereby alleges:
- This is a civil action brought to enforce the voter registration list maintenance
requirements of Section 8 of the National Voter Registration Act of 1993 ("NVRA"), 42 U.S.C.
§ 1973gg-6, with respect to the conduct of elections for federal office in the State of Missouri.
JURISDICTION AND VENUE
- This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1345.
- Venue for this action is proper in the Central Division of the United States District
Court for the Western District of Missouri. See 28 U.S.C. §§ 105, 1391(b).
PARTIES
- Plaintiff United States of America seeks declaratory and injunctive relief pursuant
to Section 11(a) of the NVRA, 42 U.S.C. § 1973gg-9(a), which authorizes the Attorney General
of the United States to bring this suit to enforce the NVRA, and pursuant to the Declaratory
Judgment Act, 28 U.S.C. §§ 2201 and 2202.
- Defendant State of Missouri is covered by the requirements of the NVRA with
respect to elections for federal office. See 42 U.S.C. §§ 1973gg-1(4), 1973gg-2(b). The NVRA
became effective in the State of Missouri on January 1, 1995. See Pub. L. No. 103-31, § 13(2),
107 Stat. 77, 88 set forth at 42 U.S.C. 1973gg note.
- Defendant Robin Carnahan is the Missouri Secretary of State. Missouri law
establishes that the "secretary of state shall be the chief state election official responsible for the
coordination of state responsibilities under the National Voter Registration Act of 1993." See
Mo. Rev. Stat. § 115.136. Section 10 of the NVRA requires that "[e]ach State shall designate a
State officer or employee as the chief State election official to be responsible for coordination of
State responsibilities under this Act." See 42 U.S.C. 1973gg-8. The Secretary of State is
sued in her official capacity. See Fed. R. Civ. P. 25(d)(2).
CLAIM FOR RELIEF
- Section 8(a)(4) of the NVRA requires that "[i]n the administration of voter
registration for elections for Federal office, each State shall . . .
conduct a general program that makes a reasonable effort to remove the names of ineligible
voters from the official lists of eligible voters by reason of - (A) the death of the
registrant; or (B) a change in the residence of the registrant . . . ." See 42 U.S.C.
§ 1973gg-6(a)(4) (emphasis added).
- Section 8(b) of the NVRA requires that "[a]ny State program or activity to protect
the integrity of the electoral process by ensuring the maintenance of an accurate and current voter
registration roll for elections for Federal office" shall be "uniform, nondiscriminatory, and in
compliance with the Voting Rights Act of 1965 (42 U.S.C. § 1973 et seq.) . . ." 42 U.S.C. §
1973gg-6(b). Section 8(c) of the NVRA provides that a State "shall complete, not later than 90
days prior to the date of a primary or general election for Federal office, any program the purpose
of which is to systematically remove the names of ineligible voters" (with certain exceptions
including removals based on death, criminal conviction, mental incapacity and voter request).
See 42 U.S.C. § 1973gg-6(c)(2)(A).
- Section 8 of the NVRA allows for immediate removals from the voting registration
list used in elections for federal office based on death, criminal conviction or mental incapacity,
in the manner provided by state law. See 42 U.S.C. § 1973gg-6(c)(2)(B). Section 8
of the NVRA also allows for immediate removals from the voter registration list at the voter's
request in the manner provided by state law, such as where a voter confirms to the registrar in
writing that the voter has moved outside of the registrar's jurisdiction or where the registrar is
notified that a voter has registered to vote in another jurisdiction. See 42 U.S.C.
§§ 1973gg-6(a)(3)(A), 1973gg-6(c)(2)(B), and 1973gg-6(d)(A). Section 8 of the NVRA also requires,
however, that specific notice procedures and timeframes be followed by States when removing
voters from the official list of registered voters used in elections for federal office on the ground
that the voter has moved. See 42 U.S.C. §§ 1973gg-6(b) to (f).
- Missouri law provides for certain voter registration list maintenance procedures,
e.g., for canvassing voter rolls every two years to identify persons who have become ineligible
and for notification to election officials of deaths. See, e.g., Mo. Rev.
Stat. §§ 115.163, 115.179, 115.187, 115.189, 115.193, 115.195.
- Missouri law allows that the "secretary of state may promulgate rules only to
ensure state compliance with the National Voter Registration Act of 1993," Mo. Rev. Stat. §
115.136. However, the Missouri Secretary of State has not promulgated rules regarding
compliance with the list maintenance provisions of the NVRA.
- The State of Missouri has delegated the conduct of voter registration in elections
for federal office to 116 local election jurisdictions, consisting of Missouri's 114 counties as well
as St. Louis City and Kansas City. In 110 of these jurisdictions, the local election authority is
the county clerk, while in St. Louis City, Kansas City, and Jackson, Platte, Clay, and St. Louis
Counties the local election authority is the board of election commissioners.
- Despite the list maintenance requirements of Section 8 of the NVRA and state
law, there are a number of local election jurisdictions in Missouri that do not conduct a
meaningful general program of voter registration list maintenance in elections for federal office,
particularly with respect to voters who may have moved. A number of local election
jurisdictions in Missouri also have not always regularly removed persons who have died. These
practices have resulted in ineligible voters remaining on the voter registration lists in elections
for federal office. There are also local election jurisdictions in Missouri that use voter
registration list maintenance procedures in elections for federal office which have not always
followed the notice and timing requirements of Section 8 of the NVRA with respect to voters
who may have moved. These practices have resulted in the removal of voters from voter
registration lists in elections for federal office prematurely in a manner not consistent with
federal law.
- For example, in one Missouri county, the clerk's office never performed a canvas
and does not put voters on the "inactive" list. Instead, on a single occasion several years ago, the
clerk's office suspended the registrations of all voters who had not cast ballots in the previous ten
years. The office has performed no other maintenance to determine whether voters on the rolls
may have moved from the county. In another county, the clerk does not flag voters who may
have moved as "inactive" and provide them notice and the opportunity to confirm their county
residence so as to maintain their registration, as required by the NVRA. Instead, after sending a
letter to each voter who had not cast a ballot in four years, that clerk immediately removed from
the rolls all those voters for whom the letter was returned as undeliverable. In yet another
Missouri county, the clerk never performed a systematic canvass of voters, while in another the
clerk has not removed deceased voters and duplicate registrations nor performed a canvass in
some years. Another county clerk acknowledged that he had not performed a canvass nor
removed voters who were registered under both maiden and married names, nor voters who were
registered in multiple counties.
- Thus, in each of these counties and in Missouri, Defendants have failed to conduct
an adequate general program of list maintenance with respect to voter registration lists used in
elections for federal office which is uniform across the State and which complies with Section 8
of the NVRA. Defendants have not taken any adequate action to monitor or to ensure that the
State of Missouri is in compliance with the voter registration list maintenance requirements of
Section 8 of the NVRA. Defendants have failed to ensure that election officials in Missouri
actually regularly perform a uniform general program of voter registration list maintenance to
remove ineligible voters. Defendants also have failed to ensure that the voter registration list
maintenance programs actually used by election officials in Missouri uniformly afford voters the
full protections of Section 8 of the NVRA before being removed from voting rolls.
- As a consequence of the non-compliance with list maintenance provisions of the
NVRA in the State of Missouri, the voter registration rolls in a number of local election
jurisdictions in the State exceed the voting age population of those jurisdictions according to the
United States Census. This fact has been highlighted in news articles and is discernable from
data on the Secretary of State's own website. This NVRA non-compliance, and its
consequences, have been called to the State's attention in a previous lawsuit filed by the Attorney
General and in later correspondence from the Attorney General.
- In 2002, the United States brought suit against the City of St. Louis, Missouri for
violations of the voter registration list maintenance provisions of Section 8 of the NVRA.
See United States v. Board of Election Commissioners of the City of St. Louis,
4:02CV1235 (E.D. Mo.). That case was resolved by consent decree which required the City to
take corrective actions to resolve these violations. While that case highlighted and resolved
certain NVRA compliance issues in the City of St. Louis, it did not lead to compliance by all
Missouri election authorities.
- Articles published in newspapers in Missouri on October 20, 2004, just prior to
the 2004 general election, indicated that there were 37 election jurisdictions in the State that had
more registered voters than persons of voting age according to then-available July 2003 United
States Census estimates. See, e.g., "Record voter rolls in state may be
inflated," St. Louis Post-Dispatch, Oct. 20, 2004, at A08; "Voter rolls at record high,"
Kansas City Star, Oct. 20, 2004, at A2.
- Comparison of State voter registration data posted on the website of the Missouri
Secretary of State with data from the United States Census Bureau indicates that at least 34
(nearly one-third) of the election jurisdictions in Missouri had more registered voters in
November 2004 than there were persons of voting age in those jurisdictions under July 2003
Census estimates (released September 2004), and that 29 election jurisdictions in the State had
more registered voters in November 2004 than there were persons of voting age in those
jurisdictions under July 2004 Census estimates (released August 2005). Indeed, the State's data
indicates that the local election jurisdiction with the highest ratio, Reynolds County, had 153% of
its 2003 Census voting age population, and 151% of its 2004 Census voting age population,
registered to vote in the November 2004 federal election. This State's data further indicates that,
statewide, Missouri had voter registration totals in November 2004 amounting to 98 percent of
the state's voting age population according to July 2003 Census estimates and 96 percent of the
state's voting age population according to July 2004 Census estimates.
- On March 17, 2005, the Attorney General of the United States wrote the State of
Missouri, noting that there were numerous election jurisdictions in the State that had more
registered voters than persons of voting age, based on a comparison of the State's own voter
registration data and United States Census population data, and expressing concern whether the
State was complying with its list maintenance obligations under Section 8 of the NVRA.
- On October 25, 2005, the Attorney General of the United States again wrote to the
State of Missouri, advising that the United States' subsequent investigation had concluded that
the State was not in compliance with its list maintenance obligations under Section 8 of the
NVRA.
- By virtue of the conduct described above, e.g., in Paragraphs 13 and 14,
Defendants are in violation of Section 8 of the NVRA, 42 U.S.C. § 1973gg-6. The facts
described above in Paragraphs 16-20 should have called to the attention of the Defendants that
the State of Missouri was failing to ensure that it conducts an adequate and uniform general
program of voter registration list maintenance in elections for federal office as required by
Section 8 of the NVRA. Unless enjoined by this Court, Defendants will continue to violate
Section 8 of the NVRA by failing to conduct an adequate general program of voter registration
list maintenance that is designed to remove voters who have become ineligible, and by failing to
conduct a general program that is uniform, affords voters the protections set forth in the NVRA
before removal from the registration list, and is otherwise in compliance with Section 8 of the
NVRA.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff United States of America prays for an order:
- Declaring that Defendants are in violation of Section 8 of the NVRA, 42 U.S.C. §
1973gg-6, by failing to ensure that the State of Missouri conducts an adequate general program
of list maintenance that makes a reasonable effort to remove the names of ineligible voters from
the voter registration list in elections for federal office in a uniform manner according to the
specific requirements and protections set forth in Section 8 of the NVRA;
- Enjoining the Defendants, their agents and successors in office, and all persons
acting in concert with any of them from failing or refusing to comply with the voter registration
list maintenance requirements of Section 8 of the NVRA in elections for federal office;
- Ordering the Defendants to take all steps necessary to remedy the demonstrated
violations of Section 8 of the NVRA in elections for federal office; and,
- Ordering the Defendants to provide this Court within 30 days from the date of the
Court's order a plan to remedy the demonstrated violations of Section 8 of the NVRA, and to
affirmatively administer an adequate general program of list maintenance in compliance with the
requirements of Section 8 of the NVRA in elections for federal office. That plan should include,
at a minimum: 1) a survey of all local election authorities in the State to determine whether there
has been a adequate general program of list maintenance in every jurisdiction designed to remove
ineligible voters as required by the NVRA as well as whether voters have been removed from the
registration lists in a manner inconsistent with the NVRA, 2) a means to fully remedy past
violations of the NVRA's list maintenance requirements, and, 3) a means for the State to monitor
and ensure it is meeting its obligations under the NVRA to conduct a uniform general program of
list maintenance on a regular basis going forward.
Plaintiff further prays that this Court order such other relief as the interest of justice may
require, together with the costs and disbursements of this action.
ALBERTO R. GONZALES
Attorney General
By: ___/s/ Wan J. Kim__
WAN J. KIM
Assistant Attorney General
Civil Rights Division
TODD P. GRAVES
United States Attorney
By:___/s/ Charles M. Thomas__
CHARLES M. THOMAS
Missouri Bar #28522
Assistant United States Attorney
Charles Evans Whittaker Courthouse
400 East Ninth Street, Room 5510
Kansas City, MO 64106
(816) 426-3130 (telephone)
(816) 426-3165 (facsimile)
charles.thomas@usdoj.gov (email)
___/s/ John K. Tanner__
JOHN K. TANNER
Chief, Voting Section
D.C. Bar No. 417585
___/s/ T. Christian Herren, Jr.__
T. CHRISTIAN HERREN JR
Alabama Bar #ASB-6671-R63T
chris.herren@usdoj.gov (email)
JOEL B. ARD Illinois Bar # 6271881
joel.ard@usdoj.gov (email)
Attorneys, Voting Section
Civil Rights Division
U.S. Department of Justice
Room 7254--NWB
950 Pennsylvania Avenue, NW
Washington, DC 20530
(800) 253-3931 (telephone)
(202) 307-3961 (facsimile)
