UNITED STATES OF AMERICA,
Plaintiff,
v.
PULASKI COUNTY; CAROLYN STALEY, in
CIVIL ACTION NO.
her official capacity as Pulaski
4-04-CV-389 SWW
County Circuit-County Clerk;
JERRY LARKOWSKI, in his official
capacity as Chair of the Pulaski
County Board of Election
Commissioners; SALLY STEVENS and
CHARLES KING, in their official
capacities as members of the
Pulaski County Board of Election
Commissioners; and the PULASKI
COUNTY BOARD OF ELECTION
COMMISSIONERS,
Defendants.
CONSENT ORDER
The United States of America initiated this action on April 16 2004,
pursuant to the
National Voter Registration Act of 1993 ("the NVRA"), 42 U.S.C.
1973gg et seq., and 28 U.S.C. 2201, against Pulaski County, the
Pulaski County Board of Election Commissioners, and Carolyn Staley, Jerry
Larkowski, Sally Stevens, and Charles King in their official capacities
(collectively “Defendants”). The
Complaint alleges violations of the NVRA from Defendants’ voter registration
practices and procedures for elections for Federal office.
The United States and Defendants, through their counsel, have conferred in good
faith and have agreed to resolve this matter without further litigation. Accordingly, they have
agreed to the entry of this Consent Order as
an appropriate resolution of the claims alleged in the Complaint. While the Defendants do
not contest that there exists a sufficient factual basis for the entry of this Consent Order,
they do not admit liability and agree to a settlement of this cause of action for the
purpose of avoiding the expense of litigation.
This Consent Order establishes requirements in four general areas:
the processing of
voter registration applications; registration list maintenance procedures;
pre-election activities; and election-day activities.
This Consent Order requires Defendants to take specific corrective
actions with regard to the voter registration rolls and in the conduct of the
2004 and 2006 Federal elections to comply with the NVRA. The Consent Order also requires Defendants
to develop and implement uniform and nondiscriminatory rules and policies governing
the maintenance of an accurate and current voter registration roll for
elections for Federal office that are in compliance with the Voting Rights Act
of 1965, 42 U.S.C. 1973 et seq., and the NVRA. These requirements are necessary
to ensure that Pulaski County will
achieve and maintain compliance with Federal law during the 2004 and 2006
Federal elections.
The
Court has considered the Joint Stipulation and the proposed Consent Order filed
by the parties. The Court finds the
terms of the Joint Stipulation fair and reasonable.
Therefore, it is hereby ORDERED that Defendants and their
successors in office, agents, and all persons acting on their behalf, shall
implement the terms of this Consent Order as follows:
A. VOTER REGISTRATION AND LIST MAINTENANCE
PROCEDURES
1. Defendant Staley shall, consistent with the
requirements of Section 8 of the NVRA, as clarified by Section 903 of the Help
America Vote Act of 2002, ensure that all completed applications for voter
registration received not later than 30 days before the date of an election for
Federal office are processed in a timely manner so eligible applicants are
registered to vote for that election. Defendant Staley shall ensure that each
newly registered voter's name,
residential address, and eligibility to vote are accurately recorded; that each
newly registered voter is assigned to the correct voting precinct and election
districts based upon the voter's residential address of record; and that each
newly registered voter is listed on the voter rolls of the correct precinct
during absentee voting, early voting, and on election day.
2. Defendant Staley shall not remove the name
of a registrant from the official list of eligible voters except (a) at the
request of the registrant; (b) as provided by State law by reason of criminal
conviction or mental incapacity; or (c) as provided in this Consent Order,
which implements Section 8 of the NVRA.
3. Defendant Staley shall conduct a general
program that makes a reasonable effort to remove the names of ineligible voters
from the official list of eligible voters by reason of the death of the
registrant or a change of address of the registrant.
4. On or before April 30,
2004, Defendant Staley shall provide to the United States a list of all
registered voters currently designated as inactive, and a list of all voters
who have been removed from voter registration rolls since January 1, 1996, by
reason of a change of address of the registrant. In the absence of any objection
by the United States within two
weeks after receipt, Defendant Staley shall employ this list as provided below
in Paragraphs Five through Ten. Any
objection by the United States shall be resolved as provided in Paragraph 24 below.
5. On or
before April 30, 2005, Defendant Staley shall mail to all persons identified
pursuant to Paragraph Four who
prior to December 31, 2003 were designated inactive or had been removed from
the rolls by reason of change of addressa postage prepaid and pre-addressed
return card, sent by forwardable mail, on which the registrant may state his or
her current address. All address
confirmation cards shall provide notices that:
a) if the registrant did not change his or her
residence, or changed residence but remains in Pulaski County, the registrant
should return the card not later than 30 days before the next scheduled
election for Federal office;
b) if the card is not returned, affirmation or
confirmation of the registrant's address in Pulaski County may be required
before the registrant is permitted to vote in a Federal election during the period
beginning on the date of the notice and ending on the day after the date of the
second general election for Federal office that occurs after the date of the
notice, and if the registrant does not vote in an election during that period
the registrant's name will be removed from the list of eligible voters; and
c) if the
registrant has changed residence to a place outside Pulaski County, inform the
registrant how he or she can remain eligible to vote.
6. Defendants may mail address confirmation
notices to active voters for whom there is reason to believe there has been a
change of address, subject to the same requirements as provided in Paragraph
Five.
7. On or
before April 30, 2004, Defendants shall restore to the voter rolls any registered voters who
have been removed by reason of a change of address of the registrant since
January 1, 1996, except those voters who a) have made a written request to be
removed; b) have responded in person that they no longer reside in Pulaski
County; or c) for whom the Defendants have received other written documentation
showing that the voter is no longer eligible to vote under applicable State law
in Pulaski County. Defendants may designate such restored voters as inactive.
8. During
the pendency of this decree, Defendant Staley shall not remove any registered
voters from the voter rolls on the ground that the registrant has changed
residence unless:
a) the registrant confirms in person or in writing that the
registrant has changed residence to a place
outside the registrar’s jurisdiction;
b) Defendant Staley receives notice of registration from the
registrar in another county or state; or
c) the voter has failed to:
(1) respond to an address confirmation mailing described in
Paragraph Five or Six that
conforms to Section 8(d)(2) of the NVRA; and
(2) vote in two federal elections.
9. With respect to registered voters who have
changed their addresses within Pulaski County, the registrar shall correct the
voting registration list as provided by the procedures set forth in Section
8(f) of the NVRA, and such registrants' names may not be removed from the
official list of eligible voters by reason of such a change of address except
as provided in subsection (d), 42 U.S.C. 1973gg-6(d).
10. On or before April 30, 2004, Defendant
Staley shall provide to the United States an accurate street maintenance
listing showing the correlation between voting precincts and address ranges
within Pulaski County. This listing
shall be used to assign registered voters to the correct voting precincts and
election districts based upon their street address. Any objection by the United States
shall be resolved as provided in Pargraph 24 below.
Defendant Staley shall continue to employ the street maintenance listing, and keep it
updated to reflect changes in precinct boundaries and street addresses, during
the pendency of this Consent Order. The Defendants shall make any data processing
consultants used for this purpose available to the United States.
11. On or before April 23, 2004, Defendant
Staley shall provide to the United States a proposed set of uniform written
rules and policies governing the following:
a) the provision and processing of
applications for voter registration for Federal office, consistent with
the
requirements of Section 8(a) of the NVRA, 42 U.S.C. 1973gg-6(a);
b) the removal of the names of ineligible
voters by reason of a change in the residence or death of the
registrant;
c) the removal of the names of ineligible
voters as provided by State law by reason of criminal
conviction or mental incapacity;
d) the prompt updating of voter registration
records to reflect any changes made on address affirmation forms on election day;
e) the prompt updating of voter registration
records to designate as active any inactive voter whom the Clerk determines to
be eligible to cast a ballot as the result of information provided contact by an election judge, the voter’s completed [address affirmation form], or the voter's
change-of-address form; and
f) the prompt assignment of accurate election
districts and voting precinct information to voter
registration records,
including any necessary updating based on voters’ change of address within the
county or changes in precinct
boundaries due to redistricting.
Such procedures shall be uniform, nondiscriminatory, and in compliance with the Voting Rights Act of
1965, 42 U.S.C. 1973 et seq. Any
objection by the United States shall be resolved as provided in Paragraph 24
below. In the absence of any objection
filed by the United States not later than May 7, 2004, Defendants shall
thereafter adhere to the agreed rules and policies during the pendency of the
this Consent Order. Within two weeks
after agreement by the United States, Defendants shall provide in-person
training in such rules and policies for all agents, employees and
representatives of the Defendants responsible for voter list maintenance and
the processing of voter registration applications.
B. PRE-ELECTION PROCEDURES
12. After
January 1, 2004, Defendant Staley mailed voter registration cards to all active
voters in the voter registration database. On or before May 4, 2004, Defendant
Staley shall mail a voter
registration card containing accurate voting precinct and election district
information to each inactive registered voter in Pulaski County who has not
responded to the address confirmation mailout by returning the pre-addressed
card and whose card did not come back undeliverable and to any active voter
whose polling site has changed after January 1, 2004.
13. Defendants shall conduct a media campaign
to encourage county residents to verify their address of record in the voter
registration database, make any necessary corrections, and verify their polling
place location, prior to the day of the election. At least once during the
period 45 to 60 days prior to each
Federal election, and at least once within the period between seven and ten
days prior to each such election, Defendants shall issue announcements pursuant
to Paragraphs 15 and 16 containing the following information:
a) voters who have changed residences within
Pulaski County since 1996 need to notify the
Clerk so that their registration records can be updated;
b) voters
who have not received a voter registration card from the Clerk within five (5)
days before an election:
1) may have an incorrect address listed on the
roll and may be removed from the voter rolls
if they do not appear to vote in
two consecutive federal general elections;
2) need to contact the Clerk before election
day to verify whether their voter registration
status remains active and
address is correct;
3) will be
required to complete additional administrative steps prior to casting a ballot
on
election day if they are
designated as inactive, or if their address is incorrect;
c) voters
may access a “polling place lookup” feature to identify their assigned polling
place via a
website and by a telephonic, automated voice recognition system, as
provided in Paragraph 16 below.
14. Defendants shall issue the announcements
described in Paragraph 13 in the print and radio media, including but not
limited to the Arkansas Democrat-Gazette, as well as on at least two
local area radio stations at peak times.
15. Defendants shall post the notices described
in Paragraph 14 in a permanent, conspicuous location on the Circuit-County
Clerk’s Internet website: http://www.co.pulaski.ar.us/d0200p01.htm.
16. Defendants shall make available on Pulaski
County’s website (either through the Clerk’s Office or through the Election
Commission) a "polling place lookup" feature whereby residents may
identify their assigned polling place location based upon their residential
street address. The website shall
provide this feature continuously other than for routine maintenance, and shall
be made available prior to the May 2004 primary, or as soon thereafter as is
practicable not later than October 1, 2004.
Defendants shall ensure the functionality of the polling place lookup
feature on the Pulaski County website and shall provide and/or secure all
necessary authority and resources to do so. This provision will be deemed
to have been met if the Secretary of State
provides this service on the State website and the Pulaski County website
provides a link to the State’s website. Defendant Staley will also make
available a telephonic, automated voice
recognition system whereby voters may ascertain their polling place.
ELECTION DAY PROCEDURES
17. Defendant Election Commissioners shall
provide election judges in each precinct with the tools necessary to determine
the proper voting location for each voter (hereinafter "Polling Place
Locator").
18. Defendant Election Commissioners shall ensure
that the election judges in each voting precinct have ready access to a working
telephone (either land-line or cellular).
19. When a voter appears at a precinct and is
not listed on the precinct roster of active voters, an election judge shall
contact the Clerk to ascertain whether that voter is registered and eligible to
vote. The election judge shall also confirm
with either the Clerk or the polling place locator that the voter is in the
correct precinct. The election judge
shall then proceed as follows:
a) If the person is registered and in the
correct precinct, the voter shall be permitted to vote
in the same manner as
all other voters.
b) If the person is registered and in an
incorrect precinct, the election judge shall direct the
voter to his or her
correct polling place, and shall offer the person, in the alternative, the
opportunity to cast a provisional
ballot to the extent that such practice is allowed under
Arkansas revised statutes
Section 7-5-306 (provisional voting).
c) If the person is registered and in the
correct precinct but the record for that voter reflects
an outdated or
incorrect address, the election judge shall offer the voter the opportunity
to correct his or her
address of record, and to cast a ballot in the same manner as all other
voters.
d) If the
election judge cannot confirm either the voter’s eligibility or polling place,
the
election judge shall offer the person the opportunity to cast a provisional
ballot to the
extent that such practice is allowed under Arkansas revised
statutes Section 7-5-306
(provisional voting), or to appear in person at the
Board of Election Commissioners.
20. During each election Defendants shall
record the nature of phone calls from election judges and citizens that were
processed by Defendants or their staff; the number of inactive voters who were
authorized to vote on election day; the number of persons who requested but
were not given authority to vote; the number of persons who cast provisional
ballots; and the number of active voters who were directed by election judges
to alternate precincts on election day. These records shall be made available
to any party to this action upon request.
21.
Defendants shall ensure that the procedures and policies described above are
implemented by preparing training manuals and election forms, distributing such
manuals and forms to all election judges, and training all election judges in
the procedures. At least 14 days before distributing these
materials, Defendants shall provide an advance copy to counsel for the United
States in order to ensure that such materials are in compliance with the terms
of this Consent Order. Counsel for the
United States shall communicate any concerns to the Defendants within seven
days of receiving the materials. If no
concerns are raised, the materials shall be deemed to meet the terms of this
Consent Order.
22. Defendants shall permit attorneys from the
United States Department of Justice to monitor voting procedures inside polling
places and inside the Clerk’s office during elections in Pulaski County. Defendants
shall further permit Department of Justice attorneys to observe the training
of election judges prior to elections.
23. The United States and the Defendants shall
confer during the Defendants' development of the written procedures required by
Paragraph 12 as necessary to ensure that potential disagreements are
minimized. If, despite the parties' best efforts, the United States objects
to one or more aspects of the specified
proposed procedures, the parties agree that the matter may be submitted by
motion to the Court for referral to a federal magistrate or for such other
resolution as the Court may deem appropriate. In any matter requiring its
approval under this Consent Order, the
United States shall not unreasonably withhold any such approval.
24. The
terms of this Consent Order are intended by the parties to address the
particular circumstances present in this case and do not necessarily represent
the procedures required by the NVRA in other cases and circumstances.
The parties do not intend to create in any
other individual or entity the status of third party beneficiary, and this
Consent Order shall not be construed so as to create such status. The rights,
duties, and obligations
contained in this Consent Order shall operate only between the parties to the
Order, and shall inure solely to the benefit of the parties to the Order.
This Order is not intended to impair or
expand the right of any person or organization to seek relief against the
County for its conduct or the conduct of county employees or agents;
accordingly, it does not alter legal standards governing any such claims.
25. The Court shall retain jurisdiction of this
case to enter further relief or such other orders as may be necessary to ensure
compliance with the NVRA by the Defendants. Substantial compliance with each term
of the Order shall fully satisfy the Consent Order.
The burden shall be
on the Defendants to demonstrate that it is in substantial compliance with each
of the provisions of the Order. The dismissal of this case shall be conditioned
upon the county’s achieving substantial compliance with the entire Order and
maintaining compliance through the 2006 Federal Election.
26. Defendant Pulaski County shall not
unreasonably withhold contracting approval or unreasonably refuse to
appropriate the funds necessary to implement this Order. All state and
county purchasing laws shall apply to any contracts that are entered.
27. This Order shall be applicable to and
binding upon all parties, their officers, agents, employees, assigns, and their
successors in office, all in their official capacities.
Entered this _19th__ day of _April__, 2004.
__/s/ Susan Webber Wright__
United States District Judge
AGREED AND CONSENTED TO:
On behalf of plaintiff
UNITED STATES OF AMERICA:
R. ALEXANDER ACOSTA
Assistant Attorney General
JOSEPH D. RICH
Chief, Voting Section
__/s/ Robert A. Kengle__
ROBERT A. KENGLE
AMY H. NEMKO
ABEL GOMEZ
Attorneys, Voting Section
Civil Rights Division
Department of Justice
950 Pennsylvania Avenue, NW
Room 7254, NWB
Washington, D.C. 20035-6128
(202) 514-3232 (telephone)
(202) 307-3961 (facsimile)
On behalf of Defendants:
PULASKI COUNTY, Et al.
__ /s/ Karla Burnett__
KARLA BURNETT
County Attorney
Pulaski County
201 South Broadway, Suite 400
Little Rock, Arkansas 72201
(501) 340-8285 (telephone)
Updated July 25, 2008
