Case Document

AB- Florida v. US

Date

Monday, January 30, 2012

Document Type

Amicus Curiae Briefs

Attachments

20120130_fl_florida_ndfl.pdf

You may view the amicus brief in pdf format.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

STATE OF FLORIDA,

Plaintiff

UNITED STATES OF AMERICA et al.,

Defendant.

CASE NO. 4:12-mc3-RH/WCS

UNITED STATES' BRIEF IN SUPPORT OF DEFENDANT-INTERVENORS' MOTION

TO COMPEL COMPLIANCE WITH NON-PARTY DEPOSITION SUBPOENAS

On January 13, 2012, the Defendant-Intervenors in State of Florida v. United States, a

judicial preclearance case under Section 5 of the Voting Rights Act that is currently pending

before a three-judge court in the United States District Court for the District of Columbia,

requested that this Court compel six legislators and staff members of the Florida Legislature to

comply with deposition and document subpoenas issued by this Court and rule that no privilege

precludes the requested depositions and document productions. N.D. Fla Dkt. 1-1 at 1. The

United States submits this brief in support of Defendant-Intervenors' motion.

In the underlying Section 5 preclearance action, the D.C. District Court must detennine

whether four sets of voting changes contained in Florida House Bill 1355 (2011) ("HB 1355")

have "the purpose [or] will have the effect of denying or abridging the right to vote on account"

of race or color or membership in a language minority group. See Section 5 of Voting Rights

Act, 42 U.S.C. § 1973c ("Section 5"); Case No. 1 :11-cv-01428-CKK.-MG-ESH (D.D.C.). The

Defendant-Intervenors in the D.C. District Court preclearance action have requested that this

Court compel deposition testimony and the production of withheld documents1 from a small

number of Florida legislators and staff members who are particularly likely to have first-hand

knowledge of the process leading up to the passage ofHB 1355, the facts and issues considered

. in enacting the bill, as well as the impact that the bill is likely to have on voters and the voting

process. The United States files this brief to set out the framework governing Section 5 judicial

preclearance cases and to explain why, in light of the searching nature of the inquiry into

legislative purpose under Section 5, no privilege bars the discovery sought here.

PROCEDURAL HISTORY AND STATUTORY FRAMEWORK

A. Initiation of the Underlying Preclearance Suit

On May 19, 2011, the Florida State Legislature enacted HB 1355, codified at Chapter

2011-40, Laws of Florida. This omnibus election law contained numerous statutory changes to

the Florida Election Code, as well as other Florida statutes. On June 8, 2011, the State submitted

the law to the Department of Justice for administrative review under Section 5 of the Voting

Rights Act. On July 29, 2011, before the Department made a determination under Section 5, the

State withdrew four of the seventy-six voting changes from review.2 On August 1, 2011, Florida

filed a declaratory judgment action in the D.C. District Court seeking judicial preclearance under

Section 5 for the four sets of voting changes contained in HB 1355 that it withdrew from

As characterized in the House Memorandum, the seven documents being withheld are

handwritten notes taken by Representatives Baxley and McKeel "related to the presentation of

the bill and debate in committee and on the floor." N.D. Fla. Dkt. 21 at 2.

2 The Attorney General has a 60 day period to review and make a determination on an

administrative Section 5 submission. Procedures for the Administration of Section 5 of the

Voting Rights Act of 1965, 28 C.F.R. § 51.9 (2011). On August 8, 2011, the Department

precleared the other voting changes contained in Chapter 2011-40 that were not withdrawn by

the State.

administrative review.3 On October 19, 2011, the D.C. District Court granted the intervention

requests of several groups of Defendants-Intervenors. Shortly after October 25, 2011, when

Florida filed its now-operative Second Amended Complaint, the D.C. District Court issued an

expedited discovery schedule - at Florida's specific request- to ensure that the preclearance

decision would be made as early as possible during the 2012 election cycle. Under the D.C.

District Court's scheduling order, discovery commenced on November 2, 2011, and is due to

close on Febrnary 29, 2012. In a minute order regarding discovery deadlines issued on January

17, 2012, the D.C. District Court reiterated to all parties that discovery will close on Febrnary 29,

2012.

B. Subpoenas Issued by the U.S. District Court for the Northern District of Florida

Defendant-Intervenors have issued subpoenas to obtain deposition testimony from a

small group of state legislators and legislative staff members as well as notes taken by two

members of the Florida House. These legislators and staff members (referred to collectively as

the "Legislative Deponents") include the sponsors of the Senate and House bills, as well as other

legislators and staff members likely to have first-hand knowledge of the process through which

HB 1355 was adopted as well as the bill's likely impact.

Opposing the motion to compel, Florida and counsel for the Legislative Deponents

contend that the testimony sought is not relevant to the underlying litigation and may not be

3 The four sets of voting changes at issue are: (1) procedures for third-party voter

registration organizations (Section 4) (97.0575, Fla. Stat.); (2) the time frame that signatures are

valid for citizen initiatives to amend the state constitution (Section 23) (100.371, Fla. Stat.); (3)

election-day polling place procedures for voters who have moved from the voting precinct in

which they are registered to a precinct in a different county (Section 26) (101.045, Fla. Stat.);

and ( 4) early voting procedures, including changes in the duration of the early voting period for

county, state, and federal elections (Section 39) (101.657, Fla. Stat.).

obtained because the deponents enjoy legislative immunity. The Legislative Deponents request

that this Court quash the subpoenas for testimony and documents, or in the alternative limit the

time and scope of the depositions. As discussed below, the arguments raised by Florida and the

Legislative Deponents regarding relevance and immunity are unavailing. Because the doctrine

of absolute legislative immunity has no bearing on this dispute, and the fact discovery sought

here bears directly on an issue of central relevance to the D.C. Court's determination of

legislative purpose under Section 5 of the Voting Rights Act, any qualified testimonial privilege

must yield.

C. Section 5 Standard

Section 5 of the Voting Rights Act provides "[ w ]henever" a covered jurisdiction

"enact[s] or seek[s] to administer any ... standard, practice, or procedure with respect to voting

different from that in force or effect" on its coverage date, it must first obtain administrative

preclearance from the Attorney General or judicial preclearance from a three-judge panel of the

United States District Court for the District of Columbia. 42 U.S.C. § 1973c. In either case,

preclearance may be granted only if the jurisdiction demonstrates that the proposed change

"neither has the purpose nor will have the effect of denying or abridging the right to vote on

account" of race or color or membership in a language minority group. Id.; see Georgia v.

United States, 411 U.S. 526 (1973); Procedures for the Administration of Section 5, 28 C.F.R.

Pt. 51.

Five Florida counties are covered jurisdictions under the Voting Rights Act: Collier,

Hardee, Hendry, Hillsborough, and Monroe Counties. 28 C.F.R. Pt. 51 App. Covered

jurisdictions may not implement a voting change unless and until preclearance is obtained.

Clark v. Roemer, 500 U.S. 646, 652 (1991). Voting changes enacted by Florida that impact these

five covered counties must be precleared before they can be implemented in those counties. See

Lopez v. Monterey Co., 525 U.S. 266, 278 (1999).

D. Section 5 Inquiry into Legislative Purpose

Section 5 of the Voting Rights Act prohibits covered jurisdictions from implementing

voting changes that have either a prohibited retrogressive effect or were motivated by a

discriminatory purpose. Beer v. United States, 425 U.S. 130 (1976). In a judicial preclearance

case, the D.C. District Court must accordingly make findings under both Section S's effects

prong and its purpose prong. See generally Shelby Cnty. v. Holder, No. 10-cv-0651, 2011 U.S.

Dist. LEXIS 1073 05 (D .D. C. Sept. 21, 2011) (discussing the current preclearance standards

under both prongs in light of amendments to the Voting Rights Act made by Congress in 2006).

The discovery at issue here relates most directly to the purpose inquiry. Under this

prong, Florida bears the burden of showing that the four voting changes at issue are "free of a

discriminatory purpose." Texas v. United States, 866 F. Supp. 20, 27 (D.D.C. 1994) (citing City

of Richmond v. United States, 422 U.S. 358 (1975)) (hereinafter "Edwards Aquifer"). Evidence

of a prohibited purpose may be direct or circumstantial, and a discriminatory purpose need only

be a motivating factor, not a primary motivation of the legislation, in order for preclearance to be

denied. See Reno v. Bossier Parish School Board, 520 U.S. 471, 488 (1997) (hereinafter

"Bossier Parish I"). The Supreme Court has held that "in cases brought under§ 5 of the Voting

Rights Act of 1965, the Arlington Heights framework should guide a court's inquiry into whether

a jurisdiction had a discriminatory purpose in enacting a voting change." Hunt v. Cromartie, 526

U.S. 541, 546 n.2 (1999) (citing Bossier Parish I, 520 U.S. at 488)). Congress endorsed this

approach to Section 5's purpose inquiry in reauthorizing the Voting Rights Act in 2006. See

H.R. REP. No. 109-478, at 42 (2006).

In Arlington Heights, the Supreme Court identified a number of factors that courts must

address in assessing whether a discriminatory purpose exists. As the Court explained,

"[ d]etermining whether invidious discriminatory purpose was a motivating factor demands a

sensitive inquiry into such circumstantial and direct evidence of intent as may be available."

Arlington Heights, 429 U.S. at 266. Factors relevant to ascertaining discriminatory intent

include: (1) whether the impact of the decision bears more heavily on one racial group than

another; (2) the historical background of the decision; (3) the sequence of events leading up to

the decision; ( 4) whether the decision departs, either procedurally or substantively, from the

normal practice; and (S) contemporaneous statements made by the decisionmakers. Id. at 266-

268.

In contested Section S judicial preclearance cases, courts considering the Arlington

Heights factors and evidence as to legislative purpose rarely reach conclusions based on the

official legislative record alone. See, e.g., Texas v. United States, No. 11-cv-1303, 2011 U.S.

Dist. LEXIS 147S86, at *80 (D.D.C. December 22, 2011) (Section S's "intensely fact-driven"

legislative purpose inquiry is "typically difficult to resolve at the summary judgment stage");4

Edwards Aquifer, 866 F. Supp. at 27 (denying summary judgment because "there is evidence

that several Texas legislators believed that the [change at issue] had a discriminatory purpose at

the time of its passage"). Instead, extensive formal or informal discovery - including taking

4 In this pending preclearance case, the D.C. District Court denied Texas's motion for

summary judgment as to the State's legislative and congressional redistricting plans on Section

S's purpose and effects prongs. Texas v. United States, 2011 U.S. Dist. LEXIS 147S86, at *82.

During a trial which lasted 8 days and concluded only last week, Texas, the United States, and

several groups of defendant-intervenors noticed the testimony of five legislative and executive

branch staff members, eighteen members of the Texas legislature, and three members of the U.S.

House of Representatives. See Exhibit 1.

testimony from elected decisionmakers - is generally required. See, e.g., New York v. United

States, 874 F. Supp. 394, 402 (D.D.C. 1994); Georgia v. Ashcroft, 195 F. Supp. 2d 25, 32

(D.D.C. 2002), vacated on other grounds, 539 U.S. 461 (2003); Busbee v. Smith, 549 F. Supp.

494 (D.D.C. 1982), aff'd 459 U.S. 1166 (1983).

Indeed, in Arizona v. Reno, the three-judge panel of the D.C. District Court denied the

State of Arizona's motion to limit discovery and its motion for summary judgment on the

purpose prong of Section 5 because the United States had not yet been afforded "reasonable

discovery in order to determine if evidence of a discriminatory purpose exists." Arizona v. Reno,

887 F. Supp. 318, 323 (D.D.C. 1995). Noting that under Arlington Heights, "the specific

sequence of events leading up to the [enactment of the voting change] and the legislative and

administrative history of those decisions are relevant to determining whether [the voting change]

was motivated by a discriminatory purpose," the Court stated that summary judgment was

unwarranted where the United States had "not yet been able to identify and depose many of the

officials - state court judges, legislators, and executive officials - who participated in the

decision" to make the voting change at issue. Id. The D.C. District Court noted that while

Arizona had submitted affidavits from some legislators in support of its motion for summary

judgment, the United States was "entitled" to depose "the other officials who participated in the

process" regarding the purpose issue under Section 5. Id.

Once developed, testimony of legislators and staff typically provides crucial evidence in

Section 5 declaratory judgment cases bearing on the central findings the court must make as to

the purpose and effect of the voting changes at issue. For example in Georgia v. Aschroft, the

testimony of elected officials was "significant" to the Supreme Court's consideration of the

impact of the voting change at issue. See 539 U.S. 461, 471-75 & 483 (2003). In Busbee v.

Smith, deposition testimony was crncial to obtaining the contemporaneous statements made by

key decisionmakers concerning the racial intent and results of the voting change. 549 F. Supp. at

500. The D.C. District Court relied on this deposition testimony from legislators about "overt

racial statements" in finding discriminatory purpose and denying preclearance. Id. at 517. 5 And

in Port Arthur v. United States, the D.C. District Court considered the testimony of elected

officials in deciding whether the officially stated reasons for the changes at issue were pretextual.

517 F. Supp. 987, 1021-23 (D.D.C. 1981).

In every Section 5 case, including this one, the testimony of particular legislators and

legislative staff members (or the equivalent local decision-makers) is likely to bear directly on

the Arlington Heights factors. This is because the Section 5 inquiry puts the decision-making

process itself at issue, and because the bulk of the relevant information is within the decisionmakers'

control. See Arizona, 887 F. Supp. at 323 (describing the necessity for deposition

testimony of decision-makers in a Section 5 declaratory judgment action); see also Jones v. City

of College Park, 237 F.R.D. 517, 521 (N.D. Ga. 2006) (deposition testimony of officeholders

appropriate where "government intent is at the heart of the issue in this case" involving race

discrimination); United States v. Irvin, 127 F.R.D. 169, 173 (C.D. Cal. 1989) (noting that the

decision-process itself was called into question by allegations of intentional discrimination under

Section 2 of the Voting Rights Act); cf United States v. Board of Education, 610 F. Supp. 695,

5 In Busbee v. Smith, the testimony of several state legislators, elected executive officials,

and individuals assisting legislators in the redistricting process, was obtained after the court

granted a motion to compel. See Exhibit 2 at Dkt. 52 & Dkt. 82 (Docket, Busbee v. Smith, 549 F.

Supp. 494 (D.D.C. 1982)); Exhibit 3 (Order, Busbee v. Smith, 549-F. Supp. 494 (D.D.C. 1982)

(No. 82)), granting defendant-intervenors' motion to compel such that plaintiffs were ordered to

comply with the notice of depositions listed at Dkt. 52).

700 (N.D. Ill. 1985) ("Here the decisionrnaking process is not 'swept up into' the case, it is the

case") (emphasis in original).

ARGUMENT

A. The Testimony Sought is Relevant and Discoverable

The Federal Rules of Civil Procedure define the scope of discovery as "any nonprivileged

matter that is relevant to any party's claim or defense .... " Fed. R. Civ. P. 26(b)(l).

This language "is to be construed broadly." National Service Industries, Inc. v. Valfa Corp., 694

F.2d 246, 250 (11th Cir. 1982). Given the broad scope ofrelevance under the Federal Rules, the

showing required to prevail on a motion to quash is strict. "A subpoena may be quashed if it

calls for 'clearly irrelevant' matter, but the court need not determine the admissibility of

documents prior to trial or quash a subpoena demanding their production if there is any ground

on which they might be relevant." Bailey Indus. v. CLJP, Inc., 270 F.R.D. 662, 667 (N.D. Fla.

2010) (quoting Herron v. Blackford, 264 F.2d 723, 725 (5th Cir. 1959)); see also Wright &

Miller, Federal Practice & Procedure: Civil 3d § 2459 (2008).

No serious argument can be made that the discovery at issue here is not relevant. Again,

before the D.C. District Court, Florida bears the burden of establishing that the four sets of

voting changes at issue in HB 1355 have neither a discriminatory effect nor a discriminatory

purpose. In the event that Florida makes out its prima facie case as to legislative purpose, the

burden shifts to the United States and Defendant-Intervenors. See Bossier Parish Sch. Bd. v.

Reno, 907 F. Supp. 434, 446 (D.D.C. 1995) (describing Section 5's burden shifting framework),

vacated on other grounds, 520 U.S. 471 (1997). As in Arizona v. Reno, the United States and

Defendant-Intervenors are entitled to take reasonable discovery - including the depositions of

decision-makers - in order to have the opportunity to proffer their own evidence rebutting

Florida's prima facie showing. See Arizona, 887 F. Supp. at 323. Accordingly, questions

regarding legislative purpose are thus not only relevant but central to any Section 5 declaratory

judgment action.

As noted, in making preclearance detenninations under Section 5 of the Voting Rights

Act, the D.C. District Court and the Supreme Court have long relied on testimony from members

of the decision-making body responsible for the voting change. See Georgia v. Ashcroft, 539

U.S. at 471-75 & 483; Busbee v. Smith, 549 F. Supp. at 500. Courts considering intentional

discrimination claims brought under Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, have

also relied on the testimony of elected decision-makers in considering allegations of

discriminatory purpose. See, e.g., Brooks v. Miller, 158 F.3d 1230, 1236 (11th Cir. 1998), cert.

denied, 526U.S.1131 (1999); Garzav. CountyofLosAngeles, 756F. Supp.1298, 1314-18

(C.D. Cal. 1990), ajf'd 918 F.2d 763, 768 (9th Cir. 1990). Notably, and as discussed further

below, relevant evidence in the Garza case was obtained as a result of a motion to compel the

deposition testimony of members of the County's governing body and employees. See United

States v. Irvin, 127 F.R.D. 169, 174 (C.D. Cal. 1989).

Contrary to the characterizations of Florida and the Legislative Deponents, relevant

testimony on intent is not limited to legislators' subjective characterizations oflegislative

purpose - either as to their own motivation or the actions of the body as a whole. Rather,

legislators and staff are often the witnesses best-positioned to provide the evidence of

circumstantial factors relevant to discriminatory purpose that the Supreme Court identified in

Arlington Heights.

Testimony from legislators and staff involved with the enactment of voting changes will

accordingly be useful in determining what impact - if any - legislators anticipated that the

proposed changes would have on minority voters. To the extent the evidence in this case shows

that one or more of the changes at issue has a prohibited retrogressive impact on minority voters,

establishing whether that impact was foreseeable or anticipated by legislators is often important

to establishing the presence of a discriminatory purpose. Cf McMillan v. Escambia County, 748

F .2d 1037, 104 7 (11th Cir. 1984) (recognizing that "if a Section 2 plaintiff chooses to prove

discriminatory intent, direct or indirect circumstantial evidence, including the normal inferences

to be drawn from the foreseeability of defendant's actions would be relevant evidence of intent")

(internal citation and quotation marks omitted); cf also Ammons v. Dade City, 783 F.2d 982, 988

(11th Cir. 1986) ("when [discriminatory impact] is foreseeable ... then a discriminatory purpose

as found by the district court is properly shown").

The testimony of legislators and staff would likewise include relevant infonnation on: the

sequence of events leading up to enactment of a voting change; the identities of persons involved

in the drafting and decision-making processes; the decision-making procedures employed and

whether those differed from usual legislative processes; and knowledge of what materials,

documents, and facts were in legislators' possession at the time the voting change was made.

Under the Arlington Heights framework, all such facts are probative of and relevant to

consideration of discriminatory purpose under Section 5 of the Voting Rights Act. See Bossier

Parish L 520 U.S. at 489; Texas v. United States, 201 l U.S. Dist. LEXIS 147586, at *18-*22

(discussing thy Arlington Heights framework and relevant factors for discriminatory purpose

analysis).

Given that legislators and legislative staff may be the only source for evidence related to

certain Arlington Heights factors, Florida misses the mark in characterizing the purpose of such

depositions as simply seeking legislators' "personal reasons for promoting or opposing" HB

1355. N.D. Fla. Dkt. 22 at 5. Much of the potentially relevant evidence relating to the Arlington

Heights factors - such as the content of contemporaneous conversations, what particular

background information legislators read and relied on, and the identities of those giving inputis

not contained in the official legislative record. But such information is not - as Florida and the

Legislative Deponents would have it- "post hoc." See N.D. Fla. Dkt. 20 at 5; N.D. Fla. Dkt. 22

at 5. Rather, deposition testimony can be the only way in which to obtain a complete statement

of the contemporaneous facts. See Arizona, 887 F. Supp. at 323. That such information is not

contained in the contemporaneous official record hardly renders it irrelevant - especially given

that the focus of Section 5 is discovering and blocking potential racial discrimination. Cf Smith

v. Clarkton, 682 F.2d 1055, 1064 (4th Cir. 1982) ("Municipal officials acting in their official

capacities seldom, if ever, announce on the record that they are pursuing a particular course of

action because of their desire to discriminate against a racial minority. Even individuals acting

from invidious motivations realize the unattractiveness of their prejudices when faced with their

perpetuation in the public record.").6

B. No Privilege Allows the Legislative Deponents to Refuse to Provide Testimony or

Documents

In addition to the clear relevance of their testimony, no privilege allows the Legislative

Deponents to refuse to give any deposition testimony in this case. As the underlying

preclearance litigation is "premised upon a federal question ... privilege is a matter of federal

6 As the Arlington Heights factors themselves make clear, evidence relevant to intent is not

limited to evidence directly exhibiting racial animus. In addition, the intentional discrimination

that is prohibited by the Voting Rights Act encompasses actions that employ racial

discrimination to achieve an otherwise permissible aim. See Garza v. County of Los Angeles,

918 F.2d 763, 778 n. 1 (9th Cir. 1990) (Kozinski J., concurring in part and dissenting in part)

(describing purposeful housing discrimination that is motivated by an otherwise pennissible

desire to maintain property values).

law." Florida Ass 'n of Rehab. Facilities, Inc. v. State of Florida Dep 't of Health and Rehab.

Servs., 164 F.R.D. 257, 261 (N.D. Fla. 1995). Federal common law is thus the source of any

applicable privilege. See generally Fed. R. Evid. 501.

Testimonial exclusionary rnles and privileges are disfavored. See Adkins v. Christie, 488

F.3d 1324, 1328 (11th Cir. 2007). Such privileges "contravene the fundamental principle that

the public ... has a right to every man's evidence." Univ. of Pa. v. EEOC, 493 U.S. 182, 189

(1990) (alteration in original) (internal quotation marks omitted). Accordingly, the Eleventh

Circuit applies "a presumption against privileges which may only be overcome when it would

achieve a 'public good transcending the normally predominant principle of utilizing all rational

means for ascertaining trnth."' Adldns, 488 F.3d at 1328 (quoting Trammel v. United States, 445

U.S. 40, 50 (1980)). This is a "high standard" under which "'only the most compelling

candidates will overcome the law's weighty dependence on the availability ofrelevant

evidence."' Id. (quoting Pearson v. Miller, 211F.3d57, 67 (3d Cir. 2000)).

Florida and the Legislative Deponents cannot overcome this high standard. As discussed

below, the doctrine of absolute legislative immunity that Florida and the Legislative Deponents

primarily rely on does not apply in this case - where the Legislative Deponents are neither being

sued nor face potential liability themselves. Florida and the Legislative Deponents are also

unable to show that a qualified testimonial privilege for state legislators - which neither the D.C.

Circuit nor the Eleventh Circuit has ever recognized - should bar the testimony requested here

given its central relevance to this Section 5 declaratory judgment action.

1. Legislative Immunity Does Not Apply in This Case

Much of the argument in Florida's and the Legislative Deponents' briefs is based on an

erroneous conflation oflegislators' absolute immunity from suit and a testimonial privilege that,

where it exists, is qualified at best. For federal legislators, the Speech and Debate Clause of the

U.S. Constitution shields them from any award of damages or prospective relief, and also

provides an accompanying testimonial privilege. See Rodriguez v. Pataki, 280 F. Supp. 2d 89,

94 (S.D.N.Y. 2003). Although "the Speech or Debate Clause does not apply at all to state and

local legislators," Florida Ass 'n of Rehab. Facilities, 164 F.R.D. at 266, federal common law

provides state legislators with immunity from civil liability for their legislative acts. See, e.g.,

Tenney v. Brandhove, 341 U.S. 367 (1951) (holding that a state legislator acting within the

traditional sphere oflegislative activity is immune from suit under the Civil Rights Act of 1871).

For example, in City of Safety Harbor v. Birchfield, 529 F.2d 1251 (5th Cir. 1976), a case

relied on in the Senate memorandum, N.D. Fla. Dkt. 20 at 11, the Fifth Circuit merely held that

notwithstanding the lack of an immunity clause in the Florida constitution, the common law

immunity recognized in Tenney afforded the defendant-legislators immunity from suit under 42

U.S.C. Sections 1983, 1985, and 1986. Id. at 1257. But there is no question here about state

legislators' immunity from suit. They are not being sued. Notwithstanding this fact, Florida and

the Legislative Deponents repeatedly cite legislative immunity cases that deal only with

legislators being sued for their official activities and not with any testimonial issue or privilege.

See, e.g., Bryant v. Jones, 575 F.3d 1281 (11th Cir. 2009); Yeldell v. Cooper Green Hosp., Inc.,

956 F.2d 1056 (11th Cir. 1992); De Sisto College v. Line, 888 F.2d 755 (11th Cir. 1989). As the

House Legislative Deponents concede, the Eleventh Circuit has never recognized such a nonparty

testimonial legislative privilege, see N.D. Fla. Dkt. 21 at 5, nor has the D.C. Circuit. See

Texas v. United States, No. l 1-cv-1303, 2012 U.S. Dist. LEXIS 5, at *13 (D.D.C. Jan. 5, 2012).

Given that all judicial preclearance cases are heard before three-judge district courts in the

District of Columbia, it is appropriate to give deference to the evidentiary rules of that forum. Id.

("There is no state legislative privilege identified in the Federal Rules of Evidence and the D.C.

Circuit has never recognized one.").

Moreover, this Court has already rejected the absolute legislative immunity framework

that Florida and the Legislative Deponents urge. In Florida Association of Rehabilitation

Facilities v. State of Florida Department of Health and Rehabilitative Services, this Court held

that the absolute legislative immunity framework does not govern the issue of testimonial

privilege, where as here "Plaintiffs d[id] not sue legislators." 164 F.R.D. at 267. In rejecting the

argument that an absolute testimonial privilege necessarily flows from immunity from suit,

Magistrate Judge Sherrill relied on the Supreme Court's decision in United States v. Gillock, 445

U.S. 360 (1980).7 In Gillock, the Supreme Court held that state legislators have no evidentiary

privilege against the introduction of evidence of their legislative acts in the context of a criminal

prosecution for bribery. 445 U.S. at 3 73. Gillock recognized that, where "important federal

interests are at stake," there is no basis to impose "a judicially created limitation that handicaps

proof of the relevant facts." Id. at 3 73-7 4. Thus, in Gillock, the Supreme Court "rejected the

notion that the common law immunity of state legislators gives rise to a general evidentiary

privilege." Manzi v. Dicarlo, 982 F. Supp. 125, 129 (E.D.N.Y. 1997); In re Grand Jury

(Granite Purchases), 821 F.2d 946, 957 (3d Cir. 1987); Rodriguez, 280 F. Supp. 2d at 100; Kay

7 Notably, in rejecting the contention that legislative immunity necessarily includes an

absolute privilege against testimonial disclosures, Judge Sherrill found that many of the cases

cited by Legislative Deponents for this same proposition were "not persuasive." 164 F.R.D. at

266 (concluding that Marylanders for Fair Representation, Inc. v Schaefer, 144 F.R.D. 292 (D.

Md. 1992), Schlitz v. Commonwealth of Va., 854 F.2d 43 (4th Cir. 1988), and Corporacion

Insular de Seguros v. Garcia, 709 F. Supp. 288 (D.P.R. 1989), were not persuasive, in light of

the reasoning in Gillock, for the proposition that the immunity from suit conferred by Tenney

necessarily includes an absolute privilege against testimonial disclosures).

v. City of Rancho Palos Verdes, No. 02-cv-03922, 2003 U.S. Dist. LEXIS 27311, at *43 (C.D.

Cal. Oct. 10, 2003).

Moreover, Arlington Heights itself recognizes that there are instances in which legislative

testimony may be needed and appropriate. 429 U.S. at 268. Section 5 cases are exactly those

unusual cases in which the need for relevant evidence at the very heart of the claims means that

any otherwise applicable testimonial privilege must give way. Cf Arizona, 887 F. Supp. at 323.

2. Any Qualified Legislative Privilege Must Yield in Voting Rights Act Cases

Alleging Discriminatory Intent

Unlike legislative immunity, legislative privilege - in those courts that have recognized

it8

- is a qualified privilege that can be overcome by a showing of need. See Rodriguez v. Pataki,

280 F. Supp. 2d at 95 (distinguishing absolute immunity from the qualified testimonial

privilege). Several courts adjudicating Voting Rights Act cases have held that a qualified

testimonial privilege must yield when legislative purpose is directly at issue.

8 Again, the D.C. District Court, where the underlying action here is pending, very recently

stated in another judicial preclearance case under Section 5, that "there is no state legislative

privilege identified in the Federal Rules of Evidence and the D.C. Circuit has never recognized

one." Texas v. United States, 2012 U.S. Dist. LEXIS 5, at *13. In the same opinion, the D.C.

District Court noted that the State of Texas could not invoke, under the federal common law, a

privilege for its legislators that Texas state courts would not recognize. Id. at *29 ("Texas cannot

claim a privilege here that its own courts do not recognize."). Florida and the Legislative

Deponents face the same difficulty here because "no Florida legislative testimonial privilege has

been recognized in the [Florida] Evidence Code, [Florida] statutes, or Florida constitution" and

"[t]here is no counterpart to [the federal Speech and Debate Clause in the U.S. Constitution] in

Florida's constitution or laws." City of Pompano Beach, Florida v. Swerdlow Lightspeed Mgmt.

Co., LLC, 942 So.2d 455, 457 (Fla. 4th DCA 2006). The absence of any testimonial privilege in

Florida law weighs heavily against allowing the invocation of such a privilege as a matter of

federal common law. But see Florida Ass 'n of Rehab. Facilities, 164 F.R.D. at 267 (stating

without deciding that there "probably is a qualified state legislative evidentiary privilege which

may be applicable" to legislators in those cases where the privilege is not overridden by a

showing of need).

In Baldus v. Members of the Wisconsin Government Accountability Board, Case No. l lcv-

562, 2011 U.S. Dist. LEXIS 142338 (E.D. Wis. Dec. 8, 2011), the three-judge court was

faced with a dispute similar to the one here. Private plaintiffs raising intentional discrimination

claims under both the Voting Rights Act and the Equal Protection Clause sought document

discovery and deposition testimony from a legislative staff member regarding the adoption of

Wisconsin's redistricting plan. Id. at *5-*6. The Wisconsin Assembly and Senate, non-parties

in the case, moved to quash. Id. The three-judge court noted that "proof of a legislative body's

discriminatory intent is relevant and extremely important" for both the Voting Rights Act and

constitutional claims raised. Id. at *6. Relying on Arlington Heights, the Court concluded that

"any documents or testimony relating to how the Legislature reached its decision on the 2011

redistricting maps are relevant to the plaintiffs' claims as proof of discriminatory intent." Id.

The Court concluded that "legislative privilege does not apply in this case" given the nature of

the case and plaintiffs' showing of need. Id. at * 8. Balancing the interests at stake, the Court

held that the plaintiffs' requests might have "some minimal future 'chilling effect' on the

Legislature, but that fact is outweighed by the highly relevant and potentially unique nature of

the evidence." Id. The Court likewise found disclosure was warranted "given the serious nature

of the issues in this case and the government's role in crafting the challenged redistricting plans."

Id.

Similarly, in United States v. Irvin, 127 F.R.D. 169 (C.D. Cal. 1989), the Court faced a

motion to compel deposition testimony regarding the contemporaneous communications between

County Supervisors and their staff about the adoption of Los Angeles County's redistricting plan

in a case where discriminatory intent was alleged. As in Baldus, the Court applied a balancing

test to determine that the depositions ought to go forward. Id. at 173-74. Citing Arlington

Heights, the court found that the "withheld information is directly relevant to the validity of the

redistricting plan" and held that "the federal interest in enforcement of the Voting Rights Act

weighs heavily in favor of disclosure." Id. The court accordingly ordered that the qualified

privilege at issue (which it termed the deliberative process privilege), "must yield ... to the need

for disclosure." Id. at 174.9

In another recent Voting Rights Act case involving allegations of discriminatory intent, a

three-judge district court held that the seriousness of the issues involved outweighed a qualified

legislative privilege with respect to documents containing "objective facts upon which

lawmakers relied in drawing" a redistricting plan. Comm. for a Fair and Balanced Map v.

Illinois State Bd. of Elections, No. 11-cv-5065, 2011 U.S. Dist. LEXIS 117656, at *34 (N.D. Ill.

Oct. 12, 2011).

3. Any Privilege Must Yield In This Case

Applying the factors generally considered in cases similar to this one, it is clear that any

qualified testimonial privilege must yield. In Rodriguez v. Pataki, 280 F. Supp. 2d 89 (S.D.N.Y.

2003), another case raising claims of intentional discrimination under the Voting Rights Act, the

court identified five factors to be weighed to detennine whether and to what extent a claim of

legislative privilege must yield. The factors include: (1) the relevance of the evidence sought to

be protected; (2) the availability of other evidence; (3) the seriousness of the litigation and the

issues involved; (4) the role of the government in the litigation; and (5) the possibility of future

9 Contrary to the suggestion in the Senate memorandum, N.D. Fla. Dkt. 20 at 21, Irvin was

not superceded by the split decision of the three-judge court Cano v. Davis, 193 F. Supp. 2d

1177 (E.D. Cal. 2002), which held only that the voluntary testimony of one member of the

legislature does not waive the testimonial privilege held by other members. Cano did not decide

the circumstances under which legislative privilege must yield to need.

timidity by government employees who will be forced to recognize that their secrets are violable.

Id. at 100-01.

Each factor weighs strongly in favor of granting the motion to compel here. As to the

first and second factors regarding relevance and the availability of other evidence, written

discovery has already made clear that certain relevant evidence can only be ascertained by

deposition. In its Interrogatories, the United States asked Florida to identify all facts related to a

list of statements made by specific legislators, two of whom are the subject of the subpoenas at

issue here, as well as all persons with knowledge of those facts. Rather than attempt to obtain

such information, Florida heightened the need for deposition testimony by responding that it "has

no personal knowledge of the particular incidents, events, statements, and statistics identified in

the interrogatory by legislators speaking in support of or opposition to HB 1355 and SB 2086."

See Exhibit 4 at 4-6; Exhibit 5 at 3. Florida's complete denial of any knowledge of the relevant

infonnation sought makes clear that such facts can likely only be obtained through deposition of

legislators and staff.

On the third and fourth factors, both the seriousness of issues surrounding this Voting

Rights Act case, as well as the fact that the intent of the Florida Legislature is directly at issue in

this case, weigh strongly in favor of disclosure. See Irvin, 127 F.R.D. at 174 ("The federal

interest in the present case is compelling. The Voting Rights Act forbids local practices that

abridge the fundamental right to vote. This Act requires vigorous and searching federal

enforcement."); Baldus, 2011 U.S. Dist. LEXIS 142338, at *6-*8. Finally, on the fifth factor, the

possibility for "future timidity" on the part of Florida legislators as a result of the requested

discovery is speculative at best. Given the recognition, even before the legislature passed HB

1355, that Section 5 requires Florida to establish that changes affecting voting were not adopted,

even in part, with a discriminatory intent, legislators and staff have no reason to expect to be

excused from providing testimony (by deposition and/or in court), and document discovery

concerning the adoption of the law.

CONCLUSION

The testimony and documents sought from the Legislative Deponents are relevant,

probative, and not barred by any privilege. Because the Legislative Deponents have no valid

basis for resisting the subpoenas, the United States respectfully requests this Court's assistance in

expeditiously obtaining the requested discovery.

Date: January 30, 2012

PAMELA C. MARSH

United States Attorney

PAMELA A. MOINE

Assistant United States Attorney

Florida Bar Number 588180

21 E. Garden Street, Suite 400

Pensacola, Florida 32502

(850) 444-4000

Respectfully submitted,

THOMAS E. PEREZ

Assistant Attorney General

Civil Rights Division

Isl Elise Sandra Shore

T. CHRISTIAN HERREN, JR.

JOHN ALBERT RUSS IV

ELISE SANDRA SHORE

ERNEST McFARLAND

CATHERINE MEZA

ANNA BALDWIN

Attorneys, Voting Section

Civil Rights Division

United States Department of Justice

950 Pennsylvania Ave. NW

Room NWB-7254

Telephone: (202) 305-0070

Facsimile: (202) 307-3961

Email: Elise.Shore@usdoj.gov

CERTIFICATE OF SERVICE

I certify that a trne and correct copy of the foregoing (filed through EM/ECF system) will

be sent electronically to the registered participant and an e-mail copy of the same will be

transmitted to the non-registered participants, on this the 30th day of January, 2012:

COUNSEL FOR THE STATE OF FLORIDA

William S. Consovoy

J. Michael Connolly

Wiley Rein LLP

1776 K Street, NW

Washington, DC 20006

wconsovoy@wileyrein.com

mconnolly@wileyrein.com

Daniel E. Nordby

Ashley E. Davis

Florida Department of State

R.A. Gray Building

500 S. Bronaugh Street

Tallahassee, FL 32399-0250

daniel.nordby@dos.myflorida.com

ashley.davis@dos.myflorida.com

COUNSEL FOR SENATOR MIGUEL DIAZ

DE LE PORTILLA, SENATOR PAULA

DOCKERY and JONATHAN FOX

Harry 0. Thomas

Lisa Scoles

Ratley Thomas Yon & Clark, P.A.

301 S. Bronaugh Street, Suite 200

Tallahassee, FL 32301-1722

hthomas@radeylaw.com

lscoles@radeylaw.com

COUNSEL FOR REPRESENTATIVE

DENNIS BAXLEY, REPRESENTATIVE

SETH MCKEEL and HEATHER

WILLIAMSON

Jonathan A. Glogau

PL-01, The Capitol

Tallahassee, FL 3 23 99-1050

jon.glogau@myfloridalegal.com

George T. Levesque

General Counsel

Florida House of Representatives

422 The Capitol

Tallahassee, FL 32399-1300

George.Levesque@myfloridahouse.gov

COUNSEL FOR THE SULLIVAN GROUP

Arthur B. Spitzer

American Civil Liberties Union

of the Nation's Capital

1400 20th Street, N.W., Suite 119

Washington, DC 20036

art@aclu-nca.org

M. Laughlin McDonald

American Civil Liberties

Union Foundation, Inc.

230 Peachtree Street, NW

Suite 1440

Atlanta, GA 30303-1227

lmcdonald@aclu.org

Randall C. Marshall

Julie Ebenstein

American Civil Liberties Union

Foundation of Florida, Inc.

4500 Biscayne Boulevard, Suite 340

Miami, FL 33137

rmarshall@aclufl.org

Estelle H. Rogers

Project Vote

737 1/2 8th Street, SE

Washington, DC 20003

ero gers@projectvote.org

COUNSEL FOR THE NAACP GROUP

John Payton

Debo P. Adegbile

Ryan P. Haygood

Dale E. Ho

Natasha M. Korgaonkar

NAACP Legal Defense and Educational

Fund, Inc.

99 Hudson Street, Suite 1600

New York, NY 10013

dho@naacpldf.org

- 22 -

COUNSEL FOR THE NCLR GROUP

Jon Greenbaum

Mark A. Posner

Lawyers' Committee for Civil Rights Under

Law

1401 New York Avenue, NW, Suite 400

Washington, DC 20005

mposner@lawyerscommittee.org

Daniel C. Schwartz

Rodney F. Page

Alec W. Farr

Daniel T. O'Connor

Ian L. Barlow

Bryan Cave LLP

1155 F Street, NW, Suite 700

Washington, DC 20004

dcschwartz@bryancave.com

Wendy Weiser

Lee Rowland

Diana Kasdan

The Brennan Center for Justice at

NYU Law School

161 Avenue of the Americas, Floor 12

New York, NY 10013-1205

lee.rowland@nyu.edu

Isl Elise Sandra Shore

ELISE SANDRA SHORE

EXHIBIT 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

STATE OF TEXAS,

Plaintiff,

UNITED STATES OF AMERICA,

and ERIC H. HOLDER, JR. in his

official capacity as Attorney General

of the United States,

Defendants,

WENDY DA VIS, et al.,

Defendant-Intervenors.

)

) Case No. 1: 11-CV-O 1303

) (RMC-TBG-BAH)

) [Three-Judge Panel]

)

JOINT NOTICE OF TRIAL WITNESSES

The parties designate the following individuals as witnesses who may testify at trial.

Witnesses who may testify before three judges on direct examination:

Texas

Doug Davis

Ryan Downton

David Hanna

Representative Todd Hunter

Gerardo Interiano

Representative Jose Aliseda**

Representative John Garza**

United States/Intervenors

Roy Brooks**

Representative Garnet Coleman

Senator Wendy Davis

Representative Dawnna Dukes

Senator Rodney Ellis

Representative Joe Farias**

Alex Jiminez

United States Representative Eddie Bernice Johnson

George Korbel**

**These persons will testify live in front of two judges if there is not time for three judges.

United States/lntervenors

United States Representative Shiela Jackson Lee

Jaime Longoria

Senator Jose Rodriguez

Judge David Saucedo

Mike Siefert

Representative Marc Veasey

Senator Judith Zaffirini

Witnesses who may testify through pre-filed direct testimony:

Texas

Dr. John Alford

Representative Charlie Geren

Todd Giberson

Representative Joe Pickett

Senator Kel Seliger

Senator Florence Shapiro

Representative Burt Solomons

Dr. Richard Engstrom 1

United States/lntervenors

Dr. Stephen Ansolabehere

Dr. Theodore Arrington

Rogene Calvert

Sergio DeLeon

Dr. Richard Engstrom

David Escamilla

Dr. Henry Flores

United States Representative Al Green

Dr. Lisa Handley

Abel Herrero

Representative Scott Hochberg

Dr. Morgan Kousser

Dr. Alan Lichtman

1 Texas reserves the right to call other witnesses of the United States and Intervenors via deposition testimony in

accordance with the Federal Rules of Civil Procedure, but also intends at this time to provide written direct

testimony of Dr. Engstrom in its case in chief.

CCaassee 41:: 1121--mcvc-0-010300033-R-RMHC--WTBCGS- B ADHo cuDmoecnumt 2e5n-t1 1 2 F3 iledF il0e1d/ 3102//1282/ 1 1P agPea g4e o3f o7f 6

Dr. Richard Murray

Boyd Ritchie

Dean Rogelio Saenz

Representative Sylvester Turner

CCaassee 41::1 121--mcvc-0-010300033-R-RMHC--WTBCGS- B ADHo cuDmoecnutm 2e5n-t1 1 2 F3 iledF il0e1d/ 3102//1228/ 1 1P agPea g5e o 4f 7of 6

Dated: December 28, 2011.

Respectfully Submitted,

On behalf of the State of Texas:

GREG ABBOTT

Attorney General of Texas

DANIEL T. HODGE

First Assistant Attorney General

BILL COBB

Deputy Attorney General for Civil

Litigation

DAVID C. MATTAX

Director of Defense Litigation

Isl David J Schenck

DAVID J. SCHENCK

Deputy Attorney General for Legal Counsel

J. REED CLAY, JR.

Special Assistant and Senior Counsel

to the Attorney General

BRUCE D. COHEN

Special Assistant to the Attorney General

Office of the Attorney General

P.O. Box 12548, Capitol Station

209 W. 14th Street

Austin, Texas 78701

(512) 936-1342 I (512) 936-0545 (fax)

ATTORNEYS FOR THE STATE OF TEXAS

On Behalf of the Attorney General and the

United States of America:

Isl Timothy F. Mellett

T. CHRISTIAN HERREN, JR.

TIMOTHY F. MELLETT

BRYAN SELLS

IA YE ALLISON SITTON

OLIMPIA E. MICHEL

T. RUSSELL NOBILE

DANIEL J. FREEMAN

MICHELLE A. MCLEOD

Voting Section, Civil Rights Division

U.S. Department ofJustice

950 Pennsylvania Avenue NW

Washington, DC 20530

On Behalf of the Mexican American

Legislative Caucus:

Isl Jose Garza

JOSE GARZA

Law Office of Jose Garza

7414 Robin Rest Dr.

San Antonio, TX 98209

Isl Mark A. Posner

JON GREENBAUM

MARK A. POSNER

Lawyers' Committee for Civil Rights Under

Law

1401 New York Avenue NW, Suite 400

Washington, DC 20005

JOAQUIN G. A VILA

P.O. Box 33687

Seattle, WA 98133

CCaassee 41:: 1112--cmvc-0-01030030-3R-RMHC--WTBCGS-B ADHo cuDmoceunmt 2e5n-t1 1 2 3F ileFdi l0ed1 /3102//2182/ 1 1 P aPgeag 6e o5f o7f 6

On Behalf of the Gonzalez Intervenors:

Isl John M Devaney

JOHN M. DEV ANEY

MARK ERIK ELIAS

KEVIN J. HAMILTON

Perkins Coie LLP

700 13th Street NW, Suite 600

Washington, DC 20005

Isl Renea Hicks

RENEA HICKS

Law Office of Max Renea Hicks

101 West 6th St.

Austin, TX 78701

On Behalf of the Texas Legislative Black

Caucus:

ls/John K. Tanner

JOHN K. TANNER

3743 Military Road NW

Washington, DC 20015

On Behalf of the Davis Intervenors:

Isl J. Gerald Hebert

J. GERALD HEBERT

191 Somervelle Street

Suite 405

Alexandria, VA 22304

PAULM. SMITH

MICHAEL DESANCTIS

JESSICA RING AMUNSON

CAROLINE LOPEZ

Jenner & Block LLP

1099NewYorkAve. NW

Washington, DC 20001

On Behalf of the Texas Latino Redistricting

Task Force:

Is Nina Perales

NINA PERALES

MARISA BONO

REBECCA M. COUTO

Mexican American Legal Defense &

Educational Fund·

110 Broadway, Suite 300

San Antonio, TX 78205

KAREN M. SOARES

JORGE M. CASTILLO

Fried, Frank, Harris, Shriver & Jacobson

LLP

801 17th St. NW

Washington, DC 20006

On Behalf of the League of United Latin

American Citizens

Isl Luis Roberto Vera, Jr.

LUIS ROBERTO VERA, JR.

League of United Latin American Citizens

111 Soledad St., Suite 1325

San Antonio, TX 78205

CCaassee 14: :1112--cmv-c0-10300030-3R-MRCH--TWBCGS-B A DHo cuDmoceunmt 2en5t- 11 2 3F ileFdi le0d1 /1320//2182/1 1 P aPgaeg 7e o6f o7f 6

On Behalf of the Texas State Conference of

NAACP Braches:

Isl Allison J. Riggs

ALLISON J. RIGGS

Southern Coalition for Social Justice

1415 West Highway 54, Suite 101

Durham, NC 27707

ROBERT S. NOTZON

Law Office of Robert S. Notzon

1507 Nueces Street

Austin, TX 78701

GARY L. BLEDSOE

Law Office of Gary L. Bledsoe and

Associates

316 West 12th Str., Suite 307

Austin, TX 78701

VICTOR GOODE

Assistant General Counsel

NAACP

4805 Mt. Hope Drive

Baltimore, MD 21215

Case 4:12-mc-00003-RH-WCS Document 25-2 Filed 01/30/12 Page 1 of 19

EXHIBIT 2

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Case 4:12-mc-00003-RH-WCS Document 25-2 Filed 01/30/12 Page 5 of 19

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PLAINTll'"F

CIVIi.. bOCICET CON.TINUATION SHEET

DEFENDANT DOC~~ __t~65

GEORGE D, BUSBEE, et al. WILLIAM FRENCH SMITH, et al.

PAGELOF __ PAG!i:S

OATE

1982 Mar 8

Ma:ti: 8!;:··

Mar 8

Mar 8'

Mar 8

Mar 9

Mar 9-

Mar 9

Mar 10

Mar 12

Mar, 12

NR. PROCL1:l:':OING5

l COMPLAINT; exhibits A and B; appearance.

SUMMONS (5) issued.

2 APPLICATION of pltfs. for a tr.~ee~judge court.

3 MOTION of pltfs, to expedite proceedings; statement of P&A's;

exhibits A and B.

4 INTERROGATO'R.IES (£.inst) of pltfs •. to def ts.

5 REQUEST (first) of pltfs. for production of documents.

6 REQUEST of pltfs. for apJ?ointment of special process server and

ORDER by Clerk appointing Elaine Rihtarchik to serve sunnnons

and complaint upon defts ..

7 AFFIDAVIT of Elaine S. Rihtarchik of service of summons and

compla:l.nt upon deft, if fol on March 8., 198 2

9a.

AFFIDAVIT of Elaine S. Riht~rchik of servic~·of summons and

conrpla:!.nt upon deft .1fo2 on March 8, '198 2

AFFIDAVIT of Elaine S. Rihtarchik of service of summons and

complaint upon deft .4f.3 to U, S. Attorney 1 s Office and by certif±ec

m~il to the Attorney General.

·' .

MOTION of pltf, to expedite. p:r:oceeding., heard and granted, (Rep;

Robert Weber) ROBIHSONi J ~

DESIGNATION of the Honorable June L, Green, United States District

Judge and the Honorable Ha~ry T. Edwards 1 United States Circuit

Judge, to serve with the Honorable Aubrey E. Robinson, Jr. 1 · · ·

United States District Judge:, as members of a three judge cour't "

to hear and· determine this case. 1' ROBINSON·, C. J. (VSCA)

ORDER filed 3-9~82, that defts, answer complaintl:within lQ da~~

after service; parties to file th:Bir response·s to written

discovery within 15 )days i:J.fter ecei.pt th¢reo:e;. diff9'0V'e:t:y to be

· completed by 5.,.1-82; t-rial to comme11ce on 5~13 ... 82. (N)

EDWARDS, J. (USCA), ROBINSON, J., GREEN 1 J.

PETITION of .William C, Randall, Jr. et al; memo in suppor~.;. exhibi.t~

(answers); $5.00 USDC fee paid and c"lledited to U.S·. Treasury1

(Appearance: Frank Parker, 733-lSth Stret?tt N.W. if/;520; 20005;:: •

(202) 628-6700). . .: ..

Mar 15 12 INTERJ.to.GATORIES (second) of plffs to def ts.

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Case 4:12-mc-00003-RH-WCS Document 25-2 Filed 01/30/12 Page 6 of 19

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•' DC 111A f (Rov, 1/75)

Pl-.AINTIFF

BUSBEE, et al.

PATE NR,

CIVIL. DOCKET CONTINUATION sHe:r.i:r

Pti;FENDANT

SMITH, et al.

PROCEEDINGS

DOCKET NO, 82-Q665

l"AGE 2._0F __ PAGES

t 1982

k Mar 17 13 ANSWER of def ts. to comp:kaint,

~·

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,(. J.

Mar 17

l:1a,l;' 1.7

Mar 18

Mal:' 18

Mar 18

J. CALENDARED. CD/N

14 MOTION by def ts. to dismiss William E. Sm±th and William Bradford F.c

Reynolds, in their individual capacit;Les, as de£ts; memo;.

::-17

RESPONSE of defts·. to ptlfs'' first interrogatories; declaratillon of

Ellen· M. Webet'.

RESPONSE of de.fts, to pltfs' first request for production of

docμments,

STATEMENT o~ J?oin::t:s and authoxities by .pltfs. in op-position to the

punitive deft/intrernevors' peuitilron for leave to intervene; table

of contents; exfiil:Hts:~:A&B. · .

ORDER filed 3-16-82, that responses t~ Motion to intervene to .be

filed by 3 .19P8'2. (N) . ROBINSON, J.

ME,l,v10RANDUM of the 11, S. in response to motion for ·1eave to intrerv.ene.

SUPPLEMENTAL STATEMENT of points and authorities by prtfs' in

. opposition to the puntative deft/iutervenors 1 petition for leave

to intervene.

'·"

Mar 19 2;l INTERROGATORIES of defts to pltfs (seti;one) ,

Mar 19 22 REQUEST (first) of clefts for production of documents, ;

Mar- 22 23 REPLY BRIEF of William C, . (Billy) Randall, Jr. et <>:1 :Ln support of . A_ ..

their- petitiqii. to intervene. ._.. . W

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Mar 23 · 24

MaR 23· 25

Mar 2.S 26

Mar 25 . 27

...

Mar 29 28

Mar 29 29

ORDER .fil€!d·:· 3~19-82 grantihg def ts 1 motion to· dismiss William li'rencl:

Smith and Wil)lliam Bradford Reynolds in-1 their individual capacities

·as· defts, \\ · (N) . i.: ROB!NSdN,J . .

. . \'.

ORDER filed 3-22-82 granting petition of Wiiliarh C, (Billy) Randall

'Jr-. et al to intervene•.·as def ts. · ( N) ROBINSON i'J.

ANSWER of· de.ft interv_enors to the coriiplai~t.

RESPONSE of defts to pl tfs' second int'errogatories •

;,.·

INTERROGATORIES (third) of pltfs to eqch deft-intervenor,

REQUEST (second) of pltfs for production of documents to deft-inter.

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(Rev, l/7U)

PLAINTIFF

CIVIL. DOCKS:T CONTINUATION St·H::Ef

DEFENDANT

BUSBEE, et al SMITH, et al

DOCKE'.T N0.82-665

PAGE:.~o·F _ PAGE:S

Apr l 30 NOT!dE of pltfs to take the depositions of William Bl."adford

Reynolds and Gel"ald w. Jones.

APl:' z

Apr 5

Apl:' 5,

Apr 5

. , Apr 5

.:Apr 5

J;pr 5

Apr 6

..._. ~

Apr 7

Apr",,7

Al'.ir' 7

. Apr- '7

Apr 1

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38'

'42

MOTION of pltfs for partial summary judgment; statement pf material.

facts; statement of ?A's; affidavit of Linda n. Meggers wl

exhibits A thru D.

RESPONSE of deft-intervenors to pltfs' first requ0~t for produdtion

of docum'ents .

RESPONSE of deft-intervenol:'s. to pltfs 1 first intet·rogatories.

RESPONSE nf deft-intervenors to pltfs' second interrogatories.

REQUEST (first) of .deft-intervenors. :for product:(on of documents

ei.ddressed to each pli;f. ·

INTERROGATORIES (first) of deft-intervenors addressed to each ptlf .

INTERROGATORIES (second set) of' deft~inte:rvenors a.ddressed to each

pltf.

INTERROGATORIES ( thi.rd ·s.et) of cleft-inte;l"Venors to pl tfs.

·:MOTION of Atlanta Branch NAACP i et al for leave to intervene:

memo in supportj exhibits A "and B; exhibit (answer');·

(Appearance: Lezli Baskerville, 1025 Vermont Avenue, NW, 820;

20.00!5 ( 202) 638-2269) ', $5. 00 fee paid and credited t9 u. S •

Treasury. ·

RESPONSE or' .. pltfs to defts' first request. for production.

RES.PONSE of pJ.tfs to defts' · interrogatories (set 1).

1VI0TION of de£ts for a protective order !:;hat certain depos.:i.tions ·

not be taken and for an order quashing subpoenas; ~emo in

support.

PRDER"tbat responses to petitiot:i of Atla:nta Bran.ch NAACP et al to

:j.nter-vene as defts to be filed by_ 4-14~82. (N) ROBINSON; J.

. ,f·

ORDER that commencing with respon~i.b to de.fts 1 motion f.or pr'otectiye•

.order.-, all responses to motidns to be filed on or before· 5 days

folio.wing filing Of motions. ( N) ROBINSON I j • .

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Case 4:12-mc-00003-RH-WCS Document 25-2 Filed 01/30/12 Page 8 of 19

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OIVIL, i:Joc1m-r CON"T'INUA'l'ION SHEltr

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DATE

i no..,

Apr 9

Apr 12

Apr 13

BUSBEE, et al SMITH1 et al DOCK&:T NCJ?2-665

PAGI::..A_or-t_ PAGES

NR. PROCEll:OlNGS

45 STATEMENT OF Pl:·A' s of pl tfs in opposition the ·petition for le.ave to

intervene of the Atlanta·Bt'anch, NAACP, et al .

46 MEMO of pl tf.s in opposition to defts 4 motion for protecti.ve -ord1-ii:'.

47 MOTION of. defts for order compelling discovery; exhibits A, Bi c;

memo of P&A's.

RESPONSE of defts to pltfs' motion for partial summary judgment;

· statem.ent of material facts.

.. REPLY MEMORANDUM of defts. in suppol:'t of their motion for a protect-.

ive order that certain depositions not be taken and for an

order quashing subpo.enas.

Apr 13 50 RESPONSE pf deft-intervenor to the petition for leave to intervene

of the Atlanta Branch, NAACP, et al

Apr 13 51 NOTICE (first) Gf deft-intervenor to nroduce to nltfs.

NOTICE (first) of deft-intervenoi:" to take the' deposition of

Linda Meggers; Rep. Joe Mack Wilson; Sen Perry Hudson;

S'l<3n Terrell Starr; -Rep. Benson Hamm; Rep. Godbee; Rep. Thoma$

Mul:'pby; Lt Gov Zell Miller; Gov George Busb~.e-; Martha Jean

Brown and Louise Sommers. · ·

ORDER granting defts• motion for- protective or-der except with

respect. to deposition of Hallue' Wright; granting' defts'

motion to_quash except with respect to subpoena duces tecum

served upon Hallue Wright. (N) ROBINSON,J.

Apr 15 54 NOTICE of pltfs to take the deposition of Susan 'Nalls.

r; '

, .. Api; 15. · 55 NOTICE of pl tfs to take the deposition of' Julian Bond .

Apr 15 56 NOTICE of pltfs to take the -deposition of Paul D. Coverdell.

Aor 15 57 NOTICE of pltfs to· take' the deposition of Williarn_~Billy) Randall

!\··'

58 .I. NOTICE of defts to take the .depositions. of Linda Meggers, Penelope

Williams and each member- of the veapporti'onment staff;

attachments A, .B, and o.

121

59 MOT!ON of pltfs :l;cJ°i'.' protective or<d~r as to certain depositio.ns;

statement of P:&A' s; exhibit A.

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CIVIL. DOCJ~g1' CON";.· NUATION SHEE'I"

,......P-~~A~IN~T~l~F-F~~~~~~~~-~~~-'-~i~o-E_F_E_N_OA~NT

1\l8j'l'e

Apr 16

Apl." 16

Ap)." 16

Apr 16

I Apr

Apr 20

Apr 20"

Apr .20

1·.

·Apr 20

;I.pr 20

BUSBEE, et al SMT.'J'H, et ,;i.l

NR.

PROCEEDINGS

RESPONSE of deft-intervenors to pltfs' motion for pal."tial summary

judgment; statement of genuine issues fol." ·c1:1ial; affidavit

of David Walbert.

RESPONSE of deft-intervenors to pltfs' second request for produstion

of documen·ts .

RESPONSE of deft-intervenors to pltfs' t.hil"d intet"rogatories

REPLY BRJ.EF of pltfs in support of pltfst motion fo~ parttal

sumrnal"y judgment.

SUPPLEMENTAL AFFIDAVIT of Linda D. Meggers.

MEMORANDUM o':! pltfs it:. opposition to Federal Defts' motion fol."

order compeJling discovery; exhibit A.

MOTION of p}.J;;;fs .. for pretrial case management orqer;· n'natement of

_..., ......... ...

MEMORANDUt· ~tle United StatP..s in opposition to pl tfs' motion fol'.1

a pro1:.>.., ... ·t.J.fve o;.•der. '\

REPLY BRJ.EF of pltfs in. support of pltfs' motion for protective

o~der. ·

MOTION of pl tfs for ;,J't'otectj,ye · ore.er as to def-L-in-t;ervenors second

notil.~e of depos:ttio.ns; exhibit A: statement of P&.2'' ~.

RESPONSES ofpl tfs to deft-intervenor-s' fj_rst request :for prodtfot:i.o

of documents, address,ed to each pl tf.

RESPQ~SES of pltfs to

~. \it- I

RESP(·:)SElS. of pl tfs to

«intel'.'rogatories.

deft-intervenors: f:i.rst inte:rrogatol'.'ies ...

deft-intel'.'venors' second set of '. .

. \1 •'i

RESPONSES of pl tfs to deft-in73rven~,~~' tnird set of interroga:bories.

MEMORANDUM of tJ:1e U. S, in response to pl tfs 1 i;.otion fol'.' ")·;p,r,etrial

ca,s;e manaqement o:c-der. r.; " ... ,.

. jApr · 2l 175 I BRIEF of deft-inter-venors Re.nda'll et al ~.n resp·o~se. to pl tfs • mot:i:'6n · "

:fo~ pl:·ote.9tive or¢!'<¥!'.' as ··to. certain depositions and pltf=1 s. mo.tion ,,,_.,. I

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~1 case·;foanagement. order. . · .

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Case 4:12-mc-00003-RH-WCS Document 25-2 Filed 01/30/12 Page 10 of 19

CO lllA

(Rov, 1/75)

PLAINTIFF

CIVIL OdCKET CONTINUATION SHE:E:T

0£".FENOANT 82-665

BUSBEE, et al SMITH, et al qOCKET NO.

, g&-~g

Al'Jt' 21

~ Apr 21

Apt' 21

Apr 21

t !Apr 22

·~ i' Apr 21

·1·

;y·

I' Apr 2.3

./ Apr 23·

.~ .

Apr 2.6

Apr 24

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PAGE:....§...OF' _ PAGES

NR. PROCE:EDINGS

76 ORDER fileCI 4-19-82 denying Petition of Atlanta Branch NAACP, et al

to in· "vene as defts; peti';;ioners for intervention may

paY'ti: ,Jate as a~icus curiae. (N) ROBINSON, J.

77 NOTICE (sebond) of deft-interyenors Randall, et al to take the

dlrpositions of sv.san N~lls; Paul D. Coverdell; Julian Bond;

Wi)liam c. (Billy) Randall, Jr. r. 78 MOTION o:f· deft-intervenors Randall,· et al to compel discovery;

memo ·1n support.

~,·

MOTION of deft-intf')rvenors Randall, et ·al to shorten time to

respond to deft-intervenors motion to compel discovery;

memo in support.

MEMORANDUM of· pltfs in opposition to deft-intervenors' motion to

comcel discovery.

MOTION of pltf.:; for partial summary judgment; motion of deft

intervenor, Randall, et al to compel discovery; motion of pltfs

for pretrial case management order: motion of pltfs for

1. ~-.. ~rotecti ve org.~r as to cei."'\i;.:tin depositions; and motion of

!1 ... -.defts for.,..,.~--··., • '. comp~ 1.ling discovery, b(;}ci.rd and t~·ken under ..

adviseme11...t. ' (Rep: Robert Weber) ROBINSON, J •

M'J'l.'ION of pltf~, ·{or expedited determination of pending motion for

parti.al su1;'. .. ci.ry judgment and for stay of the Court's discovery

order of 4-22-82; statement of P&A•s .

ORDER filed 4-22-82 denying pltf 1s motion for protective·order;

denying pltfs' motion for pretrial case management order;

holding in abeyance defts• motion to compel; granting to

cel:'tain extent deft-intervenor's• .. moH on to com:oel. IN) RnRT111sni11 .T •

TRANSCRIPT OF PROCEEDING from 4-21-82; pages 1-104; (Rep: Robert M.

Weber):1 .court copy,

·oRDER continuing trial to 6-28~82; extendipg period for discovery

to 6-li-82; parties may taken de benee esse depositions j.

between 6-11-82 and 6-21-82; trial brief to be submitted by

6-24-82; counsel to file list of exhibits by 6-:24-82; stipulations

of evicl.ence to be filed by 6-25-82; . cou,nsel to file li.st

of witnesses by 6-24-82' and counsel to fil.e list of deposition

to be. introd\,med into evidence by 6-24-82. ( N) ROBINSON, J. · ' .

MEMORANDUM. of def ts in opposition to· pl ~f 1 s mo.tion for exped:l.ted ·9

· d10te:rm:i,.nation of· pending motion for partial summci.ry· judgment an'd ·

for stay of the discovery order of 4:·22-82.

·."' .·.

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Case 4:12-mc-00003-RH-WCS Document 25-2 Filed 01/30/12 Page 11 of 19

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r-=-.,.,..,-~,,.,,,..----------.....:C:.:..:lVlt.. OOCKE:T CONTINUATION SHl':l!;T

PLAINTIFF DE:Ft=:NDANT

BUSEEE, et al SMlTH, et al POCKET NO,~~

PAGE: 2-.oP_._ PAGES

May 3 85 MEMORANDUM of deft-lnter-venors in opposi.tion to pl tfs 1 motion for

expedited determination of μending motion for partial summary

judgment.

May 7 86 APPLICATJ:ON of u. S. Deft fo1• order to show cause; memo in support;

attachment A.

May 14 87 MEMORANDUM of pltfs in opposition to defts' applica:cion for order

to show cause: exhibits A, B, and c.

May 14 88 MOTION of Deft-intervenors for injunction and interim reapportionmen

plan; exhibits A, B, and c; memo in support.

May 14 89 MOTION of deft-intervenors for denial of declarc;i.tory ju.dgment rP-;Lief

because of pl tfs' misconduct and unclean hands; memo i.lJ. .. < ,,;port

-·"

May 17

May 18

.May 18

May 20

May 21

'·>

_..

RESPONSE of deft-intervenors to defts' applicatic:m for 01; . .:f~r to

show caus'e.

ORDER filed 5-14-82, that pl tfs. appear on 5-21-82 at 2PM ·an\'.] .. show

cause why they should not be enjoined fr-om pl."oceeding y;·,.c'th

implementation of certain act. (N) ROBINSON, J.

MEMORANDUM of pitfs in opposit;i.on to deft-intervenors' motion. for

in:j unction .and :Lnterirn reapportionment plan; third affidavit

of ·Linda D. Meggers; exhib:Lts A thru H .

MEMORANDUM of pl tfs in opposi tio.n to deft-intervenors' motion for

denial of declaratory judgment ;relief "Because. of J?ltfs'

MitJconduct and unclean Hands"; exhibit A •

SECOND MOTlON of deft U.S. for order compelling discovery and to

renew first motion for order compelling discovery; memo in

·suppol"t; attachment •

...,

MOTION of deft to shbw cause and motion of '(deft for or-der to compe'i

discovery; heal"d and taken under ad,y· _,1ement. ·

· . (Rep: Robe~."°' ~.Jber) ROBINSON, J •.

May 21 95 AFi:<'IDA.VIT of Susan Nalls; exhibit A s..i6mitted by deft intervenors.

May ,2.ci 96 · j·bECLARATION of Carl W. Gabel; attachmen~., subm;l tted by defts.

May 24 97

May .24 98

M'TIMORANDUM OPINION, AND ORDER enjoin:ing pltfs from certain· ai;tion;

denying intervenor-·defts motion fol;" interim reilief i gl'.'anting

2nd and renewed 1st motion fo:r·an OJJ'ner comrieJ:ling discoV'ery,

\ l.\J J ROJ3INSON, J.

•APPL!CATI'ON ·of pltfs rbr ·st'ay •..

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Case 4:12-mc-00003-RH-WCS Document 25-2 Filed 01/30/12 Page 12 of 19

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(Rav, 1/75)

Pl..AINTIFF

CIVIL. DOCKE:'l' CONTINUATION SHl::'.ET

01;'.FENDANT

BUSBEE, et al SMITH, et al

DOCl~ET No!32-66£?~~PAGE:~

OF~PAGES

, R~r,e:

May 24

May 25

NR, PROCE:EOINGS

99 NC·'l'ICE a·f appeal of pl tfs to the supreme Cau:t't of the United States.

100 ORDER denying application of pltf for a stay. (N). ROBINSON, J,

TRANSCRIPT OF PROCEEDINGS from 5-21-82 i p~ges 1-102 i (Rep.: Robert M.

Weber); cou~t copy.

DEPOSITION of Hallue Elizabeth Wright taken 4-30-82 on behalf of

pltfS. ,.

Jun 2 101 SUPPLEMENTAL RESPONSES of pltfs to certain of d.~fts interroga~ories.

Jun. 7 102

Jun 14

J1 . m .14

SUPPLEMENTAL RESPONSES of deft-intervenor Julian Bond to pltfs'

· third interl:'oga·cories.

DEPOSITION of Representative Al'Scott taken 6-3-82 on behalf of pltfs

correction sheet.

DEPOSITION of Susan. Nalls taken 5-2.8-82 on behalf of pltfs;

correction sheet; exhibit 1.

PEPOSITION of William (Billy) Randall taken 6-7-82 on behalf of

pltfs; unexecuted.

(

1 Jun 17 10·3 MOTION of pltf in limine; statement of P&A's; exhibits A, B, and C.

.I.. .

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I 1,

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Jun 18 104 APPLICATION of pl tfs for order to issue subpo·'!':ia,

Jun 2:l 1.05 JOINT MOTION for authorization toserve subpoenas in Georgia.

Jun 21

'()

Jun 2\3

Jun· 2.4

Jun 24

. Jun 24

Ii.-::· •. -.. ".:···

l.06 .. ORDER allowing subpoenas for' tria.1 wt.iriesses to be served. in the

state. of Georgia. ( l'l) ROBil~?ON ; .. J .

107

108

109

'TRANSCRIPT of Video Taped Newscasts· ft'om 8-31- ·:~ t·· 9-17;..81 before

E .• DUane Smith, .. Certified Coul:'t Repor't.19r at WSll-TV 1 Atlanta,

Georgia taken on· 6-17-8.2 •

DEPOSITION of Jacl1; Sell~ ta~en 6-17.:..-;,;?. pursua~,t '~....1 · .. ,':)Urt order i

exhibits 1 and 2.

TRIAL BRIEF of deft-irtter.venors •

DESIGNATION of def't;-interv~nor's of depos;i,. tion:s.

RESPONSE of. deft-ihtervenars t.o pltfs'.motion in liitlihe.

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Case 4:12-mc-00003-RH-WCS Document 25-2 Filed 01/30/12 Page 13 of 19

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DC lllA

(f!ev,1m1

PLAINTIFF

BUSBEE, et al

CIVIL. O<:)CKET CONTINUATION SHEET

OEFSNDANT

SMITH, et aJ.

PROCEEDINGS

Jun 24 110 MASTER - TJIST of deft-intervenors of exhibits .

Jun 24 111 LIST OF WITNESSES of.deft-intervenors.

DOCKET NO. 82- 665

PAGE~OF_PAGES

Jun 24 112 SUBMISSION of the U. s. ·setting forth trial witnesses, depositions

to be introduced into evidence, and the master list of exhibits;

exhibits 1 thru 18.

Jun 24 113 TRIAL BRIEF of the u.s.A.; table of contents; table of authorities ..

Jun 24 114 LIST of pltfs of deposftions to be introduced into evidence.

Jun 24 115 LIST of pltfs of exhibits; attachment.

Jun 24 116 WITNESS LIST of pltfs.

Jun 24 117 PRETRIAL BRIEF of pJ.tfs,

;)

Jun 25 118 DE:POSITION of Terrell St~rr taken 5-27-82 or1 behalf of defts;

'. errata sheet; exhib;L\; 1.

\Jun 2:5 119 STIPULATION of.'facts.

,Jun 25 i·20 THIRD SUPPLEMENTAL RESPONSE of deft-intervenors to pltfs' third

· interrogatories.

Ju~1 25 121

Jun .2.fi.'. 121

Jun 25:: · 123

FOURTH SUPPLEME14TAL RESPONSE of deft-intervenors

inter~ogatories.

REQUEST (first) of deft-interveno1°s for judicial

· Al thru A72; excluding A66 and A67.

t ltf ' ···--·. d

o p s '.1 ·1'fn:;. .• '.·.\ . ·,.,

notice { exhibiJis·.

.~:::. ..

REQUEST of the U.S. for judicial notice ot adjudic~tive facts.

AMENDED .SUBMISSION pf the U.S. setting forth trial witnesses. /'

·.,;Tun 28

• Juh. zs :

DEPO$;i,1;_'1'ION of Or. Alex Willingham taken 6-18-82 on behalf of pl tfs.

· BEPOSITION of .Repr.esentative ·R.oger Williams taken 6-7-82 on behalf

of fedet•al defts; errata sheet.

Jun 28:

.Jun ~·a

DEPOSITION of Dan Ebersole taken 6-1-82 on behalf of defts; errata

sl;,teet. ..

·.·

·DEPOSITION gf Senator. Perry Hudson taken· 5-24-82 on b~half of

governmentj errata sheet.

SEE NE.XT PAGE.

Case 4:12-mc-00003-RH-WCS Document 25-2 Filed 01/30/12 Page 14 of 19

~ I

I·

l.t

...

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DC lllA

(R8V, 1/75)

PLAINTIFF

Jun 28

Jun 2.8

Jun 28

Jun 29

'Jun 29

...::.·

Jun 2.9

Jun 29

!Jun 28

Jun ;3©

Jul ·1

Jul 1

·.u'

Jul 1

.. Jul ],

Jul

NR.

-----------

CtVll.. OOCKET CONTINUATION SHEgT

OEFENDANI

BUSBEE, et al SMITH, et al

DOCKaT NO. 82-665

PAGI:: ;b.Q.oF __ PAGES

DEPOSITION of Vinson Wall taken 5-31-82 on behalf of deft-intervenor;

correction 8heet. (Volume I)

DEPOSITION of Vinson Wall ·taken 5-3l-82·on behalf of deft-intervenorj

(Volume II).

DEPOSITION of Joe Mack Wilson taken 5-31-82 on behalf of Government;

correctioh sheet. (Volume I).

DEPOSITION of Joe Mack Wilson taken 5-14-82 on beh?J.lf of ·Government;

correction sheet. (Volume II) .

DEPOSITION of Joe Mack Wilson taken 5-19-82 on behalf of Government;

correction sheet. (Volume III)

DEPOSITION of Linda Meggers taken 5.-28-82 on behalf of def ts;

.correction sheet. (Vo1ume VII)

DEPOSITION of L!nda Meggers taken·6-9-82 on behalf of defts;

correction sheet. (Volume VIII) .

DEPOSITION of Governor <;;1:1orge D. Busbee taken 6-21-82 on behalf of

deft-intervenors; Efrrata sheet; exhibits'l thru 15.

DEPOSITION of Thomas B. Murphy taken 5-11-82 on behalf of defts;

unexecuted.

. TRIAL BY COURT begun and respited to 6-2.9-82 at

(Rep: Joe Rogers)

9:00 .am.

TRIAL resumed.and respited to 7-1-82 at 9:00 a.m.

(Rep: .-Craig Knowles)

EDWARDS, J USCA

f\OBINSON,J

GREEN, JUNE 1 J,

EDWARDS 1 J, USCA

ROBINS'ON, J ,

GREEN 1 JUNE, J .

DEPOSITION.,·of Representative John GOdbee taken .5-26-82 on behalf

of ttefts; er-rat a sheet. ., "·'

DEPOSITION of· Louis Summers taken. 6.-1-82 on. behalf of deft-interv.e~ n•

errata sheet.

DEPOSITION of Representative Bettye Lowe taken 5-25-82 on behalf of

defts-interveh9r and defts; exhibit l; errata sheet.

pEPOS;i'.TION of Senator Floyd w. Hudgins taken 6'-8-82 .on' behalf of

defts-inte.rvenol:'s; uriexecuted.

DEPOSITION of Patricia Nally taken 6-8~82 on behalf of federpl defts

up.executed.

SEE NEXT PAGE

• I

•I :

Case 4:12-mc-00003-RH-WCS Document 25-2 Filed 01/30/12 Page 15 of 19

oc 111A

(Rev, 1/75)

PL.Al NT I FF

CIVIL. DOCKE:T CONTlNUATION SHEE.T

DEFENDANT 82-665

POCKETNO.~~~~ BUSBEE, et al SM!TH, et al

PAGe:'.!l:_oF~_PAGE5

l ?8'?.e:

Jul 1

Jul l

·Jul l

Jul 1

i\. Jul 1

!;c J.μl 1

Jul l

Jul 1

Jul l

:,'. .... · .:~'.• Jul 1

,..

rt.''

... '.·. ••• . ..·.';.• .

Jul 1

. 1i··~

.Ju:i:1 1J. ·

Jul 1

NR.

...

PROCEEDINGS

DEPOSITION of Hosea Williams taken 6-14-82; unexecuted.

DEPOSITION of Robert Ford taken 6-16-82 on behalf of pltfs;

exhibits 1,2, and 3; unexecuted.

DEPOSITI.ON of Grace T. Hamilton taken 6-3-82 on behalf of federal

defts; exhibits 1, 2 1 .and· 3; errata sheet.

DEPOSITION of Representative Hank ELliott taken 6-4-82 on behalf

pf' defts and deft intervenors; unexecuted.

DEPOSITION of Representative Hank Elliott taken 6-11-82 o~ behalf

o.f def ts and d.eft intervenors; unexecuted. (Volume II).

DEPOSITJON of S'enator Culver Kidd taken 6-1-82 on behalf of

federal defts; exhibit l; unexecuted.

)JEPOSITION of Senator Thomas F. Allgood taken 6-8-82 on behalf of

federal defts; .unexecuted.

DEPQpITION of Representative Robert A, Holmes taken 6-4-82 on

oehalf of defts and deft intervenors.

DEPOSITION of James Brewer taken 6-17-82; unexeauted. " .. -. ·-~~

DEPOSITION of Julian Bond ta~en 6-4-82 on behalf of pltfs.

DEPOS.ITION of ·01cn Vey taken 6~8-82 on behalf of federal go':'.'ernment;

erl"ata sheet; exbib~.t 1.

DEPOSITION (continued) of Representative John Godbee taken 6-4-82.

.p~POSITION of Linda D. Meggers taken 5-3-82 on behalf of defts

exhibits 10 thru 19; errata sheet; une:X:eouted.

DEPOSITION (Continued) of Linda D. Meggers taken 5-4-82 on behalf

of defts; errata sheet; unexecuted. (Volume II)

DEPOSITION (continued) of Linda D. Meggers taken 5-5-82 on behalf

of defts; errata sheet; unexecuted.

DEPOS!TIO~l (continued) of Lir~da D. ·Meggers taken 5-6-82 oh. behalf

of defts; errat;a Sheet; 1.mexecutoJ..· (Volume IV).

DE~OSITION (continued) of Linda D. Meggers takeii· 5-7-82. on behalf

of defts; errata sheet; unexeauted; (Vol~me V)

DEPOStT:i°fo,1 (continued) of Linda· D. Meggers take·n 5-10-82"·',on behalf

of defts; errata sheet. (Volume VI)

SEE J.iJEXT PAGE

Case 4:12-mc-00003-RH-WCS Document 25-2 Filed 01/30/12 Page 16 of 19

r...- -------·----------· ...... ·--· ----.

;

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' \

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~ ~~

V·

~·· ,.

;

PC 111A

(aov, V75)

CIVIL OOCKE1" CONTINUATION SHE:l':T

PLAINTIFF . DE:FE:NOAN'f

SMITH, et al

DOCKET No~ 2 - 665

PAGE: Eor: __ PAGe:s

Jul· 1

J'ul 1

J.t.i.l 1

Jul 2

Jul 8

Jul 8.

Jul 12

Ju•l 12

Ju], 12

J\;W, 1.2

Jul 14

~July ·2~

. "

BUSBEE, et al

NR.

123

124

PROC5i?:OINGS

I DEPOSITION of Lieutenant Gover or Zell Miller taken 5-18-82

on behalf of Government; rrata sheet.

DEPOSITION (continued) of Gr ce T. Hamilton taken 6-10-82.

TRIAL resumed and conclude

respect to design:ation

submitted by 7-12-82,

i pal:'ties to submit memoranda with

by 7-2-82; proposed findings to be

(Rep: Joyce Northwood) EDWARDS,J. USCA

ROBINSON,J.

GREEN, J.

AMENDED DESIGNATION of deft intervenors of depositions to bi3

relied upon at t:rial.

SUPPLEMENTAL DESIGNATION o:f pl tfs of de!Josi tions,

TRANSCRIPT OF PROCEED!NGS fl:'om 6-28-82; pages 1-l6lj (Rep: Joseph

D. ROgers, court copy. (1st day)

TRANSCRIPT OF PROCEEDINGS fri:-,t. · :.-92-82; pages 162-398 i

(Riilp: Cathy Jardim); <•:1t..:1··" r::opy, (2nd day)

TRANSCRIPT OF PROCEEDINGS from 6-30-82; pages 399-65lj

(Rep: Cr~ig L, Knowles); court copy.· (3rd day)

TRANSCRIPT OF PROCEEDINGS from 7-1-82; pages 652-727;

(Rep: Joyce Northwood); court·copy. (4th day)

125 EXHIBITS 66 1 67 and 74 of deft intervenor to first request for

'. judicial notice filed 6-25-82.

126 PROPOSED FINDINGS of pltfs of fact and conclusions of law; .table of

contents.

12·7 PROPOSED FINDil'lGS of U. s. of fact and conclusions of law.

'128 MOTION of deft tJ. S. to designate a:nd introduce certain additional

portions of depositions· ·into evidence; attachment.

129 PROPOSED '~INDlNGS of· ~~teryenors of fact and conclusions of. law.

(fiied·per chambers).

" .

DEPOSITION of Representative Ken Workman taken 6-16-82 on behalf of

Federal government; errata sheet.

FIND.INGS OF F.ACT AND. CONCLUSIONS OF LAW. (N)

SEE NEXT PAGE

.EPWARDS , J ,

GREEN 1 J,

ROBINSON, J .•

9 ...

Case 4:12-mc-00003-RH-WCS Document 25-2 Filed 01/30/12 Page 17 of 19

r-..--

\!' DC lllA ¥ (Rev. l/75)

C!Vll.. POCKET CONTINUAilON SHJ;:E:T

"1'

·9 f .·..'

~ .... ! • .-:'".::.:.

[•

I".

PLAINTIFF

BUSBEE, et al.

OA'l'i:: NR.

DEFENDANT

SMITH, et al.

PROCEEDINGS

DOCKl!1' NO, 82-0665

PAGE EoF __ PAGE:$

1982

~uly 2:". 131 ORDER filed 7-22-82, declaring that Act No. 5 of the 1981 Extraordinatry

Session of the Georgia General Assembly was enacted

with the purpose of denying or abridging the right to vote on

request for a declaratory judgment; enjoining pltfs, from

implementing Act. No. 5; and directing pltfs. to submit by

8-11-82 a reapportionment of the Fourth and Fifth ~~ongressional

Districts. (N) EDWARDS, J., GREEN, J,, & ROBINSON, J .

;

Jul 26 132

Ju1·25 133

Jul 27

Jul 26 134

Jul 29 .135

(.,

~PPLICAT!ON of pltfs for stay.

NOTICE OF APPEAL of pltfs'to the Supreme Court of the u.s.;

$5.00 fee paid and credited to U.S. Treasury.

DEPOSITION of Senator Paul Coverdell taken 6-2-82 dn behalf.of defts

i:.1rrata sheet.

ORDER denying pl tfs 1 application for stay of tM.s court's order of

7-22-82. (N) GREEN, J.

MO.TION of U.S. for clarification of the Court's order of 7-22-82;

.. memo in support. ·

Jul 30 136 STATEMENT OF P&A' S of pl tfs in opposi ton to defts' motion for

clarificat.ion of the court's order of 7-22-82.

Aug 2 137 ORDER filed 7-30-82 that on or before Monday, a~2-82 ·at 4:00 p.m.

pltfs and intervenor-defts shall file a response to the motion

of t;;he U.S. for clarification of the Court's order of 7-22-82.

Aug 2 138

.Aug 3 139

·-'

Aug 9 140

...

Aug 1:). 14l

Aug 13 142

Aug 13 143

Aug 1!3 144

(N) ROBINSON,J.

RESPONSE of intervenors to motion of the US for clarification".

ORDER filed 8-2-82 deny.fng feder1;1l' defts:i.rnotion for clarification

of order of 7-22-82. (N) ROBINSON, J. for th~ Court.

SUP~LEMENTAL REAPPORTIONMENT PLAN of pltfs; e~hibits A thru D.

CORRECTION of pltfs in statistical data for supplemental reapportior

me:r,t plan filed 8-9-82; exhibits l and 2.

ORDER direeting deft and deft-intervenor to file a response to

sμpplemental re~ppoptionment plan by 8-16-82 at 2:00 p.rn.

. . ·· (N) . . EDWARDS, J. (US,fAU

RESPONSE of the U.S. to pltfs' supplemental reaprortion ment plan;

exhibit A.

1: .

'·MOTION of i;:rltfs for an expedited or·der to proceed with an expedited

election schedule for Congressional Districts 1-3 and 6-10.

SEE NEXT !?AGE

Case 4:12-mc-00003-RH-WCS Document 25-2 Filed 01/30/12 Page 18 of 19

' k

OC lllA

(Rov. l/7ol

Pl...AINTIFP

CIVIL. bOCKE.'l' CON'l'INUA'l'ION SHEET

82-0665

BUSBEE, et al

PAGE; ~Or _ PAGES

DOCKET NO. SMITH, et al

1 i;l~.l)E NR, PROC!;;E:DINGS

Aug 16 145 RESPONSE of intervenors to supplemental reapportionment plan:

Aug "0 146 MO'I'ION of pltfs for an order approving special primary and general

election schedules for Georgia's Fourth and Fifth Congressional

Districts; exhibit 1.

Aug 16 147

Aug 19

Aug 19 149

ORDER filed 8-13-82 granting -pltfs' motion for an expedited order

to. proceed with an expedited election schedule for Congressiona·

Districts 1-3 and 6-10. (N) ROBINSON,J.

MOTION of deft-intervenors for an order approving special primary

and general election schedules for' Georgia's. fourth and fifth

Congressional Districts; P&A's in support of their motion and

in opposition to pltfs' motion for an order appl:'oving special

pl:'imary.and general election schedules; exhibits I-1 and I-2..

SUPPHI:MENTAL MEMORANDUM of pltfs regarding propc:~ed election

schedules; exhibits 1 thru 5,

Aug 19 150 RESPONSE of the U.S. to pltfs' motion for an order approving

special primary· and genera·l election schedules for Georgia's

fourth and fifth cong1'essionp.l districts.

Aug 24 l!;il. REPLY MEMORANDUM' ">.f intervenors regal:'ding proposed election

schedule.

MOTION o:f pltf and deft-intervenors ;for' an order approving special

primary aud general election schedules for.Georgia's fourth

and fifth coμgressional districts heard and court to set forth

schedule. (REp: R. l'.Jebel") (USCA) EDWARDS i J.

ROBINSON,J •

GREEN, J,

ORDER directing that the Special.primary, Runoff, and General

Elections for Georgia's Fourth and Fifth'Congressional Districts

shall proceed according to the·attached schedule; that the dates

. and events numbered 4, 6, 7, 9, 10, 11, 12 1 1·3, 17, 18, 19, 20,·

2.1 and 22 may be altered by r,iltfs and the dates and events

numbered 1, 2, 3, 5, 8, 14, 15, 16 and 23 may not be aitered except 011

oi'O,er of th:i.s court: attachment. ( N) ( USCA) EDWARDS., J.

·· RO~!NSON, J.

GREEN, J.

ORDER that pltfs ax'e ·entitled to and granted a declaratory judgment

tl:J.at Act No. 5. as supplemented by Ho.use Bill l Ex doeg not have

··the purpose and will have the effect of denying or abt•idging th~

,right to vote on account of.race, color, or membership in a

language minority gi."OUP , ( N) ( USCA) EDWARDS, J,

,," ROBINSbN; J •

GRBEN,· J.

SEE NEXT PP..GE

... ~ J

. e

Case 4:12-mc-00003-RH-WCS Document 25-2 Filed 01/30/12 Page 19 of 19

fr...,_,._....__,,, ______ ..,.....,....._~_,..........,.___.. ____ .,.,.__....., _ ,...,--,_... _ _

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(Rev, 1[15)

PLAlNrtF'F

CIVIL DOCKET CONTINUATION SHES:T

BUSBEE, et al SMITH, et al

OOCKET No~ 2 -06 6 5

PAGE'.~OF' __ f'AGES

Aug 26·. TRANSCRIPT OF PROCEEDINGS from 8-24-82; pages 1-49; (Rep: Robert

Weber); court copy.

Sep 23 154 MEMORANDUM OPINION filed· 9-21-82 regarding congressional elections

:i,n certain districts. (N) EDWARDS.J. (USCA)

ROBINSON, J,

GREEN, J,

Dec 6

Feb 17

Feb 28

Mar ·s

155 CHANGE OF ADDRESS of 'Thomas I. Atkin·s, General Counsel i

N.A.A,C.P. Special Contribution Fund; 1B6 Remsen Street;

Brooklyn Heights, Ne~ York 11201 (212) 858-0800.

156

157

158.

\' . ......

159·'

NOTICE by Intervenor-clefts. to take depositions of Mr. Michael

Bowers, Ms. Carol Cosgrove, and Mr. Mark Cohen.

REQUEST by Interv·enor-defts. to pltfs. for pr.oduction of documents.

CERTIFIED COJ?Y OF JUDGMENT from the· Clerk Supreme CoQrt of the U.S.

affitming judgment USDC.

BILL OF COSTS as verified by counsel for the.United Stat;esi Brief

in support1 exhibits A thtu·G.

Mar .. 2i·160

\ '.

OBJECTIONS by pltfs. to United States Bill of Costs; exhibit A.

Apr ll 161° CONSENT ORDER concerning attorneys' fees costs and expenses of

Jun 15

June .22 162

inte:rvenors. (N) ROBINSON, CJ.

BILL OF' COSTS as. taxed by the Clerk in the amount of $20, 458 .15;

attachment. (N)

MOTluN of the.United States defts to review taxation of costs;

attaqhment A; memorandum of law in support; Attachments A thru

'IJU~y 5 163 MEMORA'NDUM OF LAW of pltf's in opposition to Uni'ted states• motion

·to re~iew taxation of costs.

$ept 29 lt;i4 MEMORANDUM '.t:iled 9/28/83 ;·: (N) ROl3INSQ.N, CJ. (sb}

"sept 29 165 ORDER filed 9/28/83 granting motion· of the united states of America to review

taxation of ~6sts~ directing that pltf state of Georgia shall be taxed

$40,929.48 for the co~ts deft United States of.America incurred in

defending t;his 'action •.. (N) ROBINSON, CJ, ( sb).

·-..'i

:~I .J:.,

',.·•

Case 4:12-mc-00003-RH-WCS Document 25-3 Filed 01/30/12 Page 1 of 3

EXHIBIT 3

Case 4:12-mc-00003-RH-WCS Document 25-3 Filed 01/30/12 Page 2 of 3 01/29/2012 23:18 FAX 301 778 1501 WNRC REF. SERVICE BRANCH

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GEORGE D. BUSBEE. et al., )

Plaintiffs, )

v. )

WILLIAM FRENCH SMITH, et al., )

Defendants. )

ORDER

CIVIL ACTION NO. 82-0665

FILED

APR 2 2 1982

JAMES . .f.. DAVEY, Clerk

la] 002/004

Upon consideration of Plaintiffs' Motion for a Protective Order

as to Certain Depositions, Defendants' Motion to Compel, DefendantIntervenors'

Motion to Compel, Plaintiffs' Motion for a Pretrial Gase

Management Order, the responses thereto, the hearing held April 21, 1982,

and the entire record herein. it appearing to the Court that: (1) inquiry

into considered but rejected alternative Congressional plans is a proper

subject for discovery in this case since it may lead to circumstantial

evidence on the purpose of the Georgia legislature in adopting the plans

at issue 1 Vi1lag~~ of Arlington Heights v. Metropolitan Housing Development

Corp., 429 U.S. 252, 266 (1977); Washington v. Davis, 425 U.S. 229,

242-43 (1976); (2) inquiry into the reasons why certain state legislative

districts were chosen may similarly lead to circumstantial evidence; and

(3) the scope of discovery should be broadly construed where 11there is

the possibility ·1:hat the information sought ma.y_ be relevant to the

subject matter o:f the action", 8 Wright & Miller, Federal Practice and

Procedure § 2008, it is by the Court this~ay of April 1 1982,

Page 2 of 4 received on 1/30/201210:12:15 AM [Eastern Standard Time] for 2207479. f 2

01/28/20C12a s2e: 34:1:18 2F-,m~X c-030010 07378-R 1H50-W1 CS DocWuNmRC eRnEt F2. 5S-3ER V FICiEle dB R0A1NC/3H 0/12 Page 3 of 3 ~ 003/004

·,_...,·

-2-

ORDERED, that Plaintiffs' Motion for a Protective. Order be a.nd

here.by is DENIED; arid it is

FURTHER ORDERED. that Plaintiffs 1 Motion for a Pretrial Case

Management Order he and hereby is' DENIED; and it is

FURTIIER ORDERED, that Defendants' Motion to Compel be and hereby

is HELD IN ABEYANCE pending Plaintiffst submission of more complete

information; and tt is

FURTHER ORDERED, that if Defendants are dissatisfied with

Plaintiffs 1 submission, they shall r·enew their Motion to Compel;

and it is

FURTHER ORDERED, that Defendant-·Intervenors' Motion to Compel

be and hereby is GRANTED only to the extent that Plaintiffs shall

comply with. the "First Notice of De.positions" and the nFirst Notice

to Produce11 •

FOR THE COURT

Page 3 of 4 received on 11301201210:12:15 AM [Eastern Standard Time] for 2207479,

Case 4:12-mc-00003-RH-WCS Document 25-4 Filed 01/30/12 Page 1 of 15

EXHIBIT 4

Case 4:12-mc-00003-RH-WCS Document 25-4 Filed 01/30/12 Page 2 of 15

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

STATE OF FLORIDA,

Plaintiff

THE UNITED STATES OF AMERICA and

ERIC H. HOLDER, Jr., in his official capacity as

Attorney General of the United States,

Defendants,

FLORIDA STATE CONFERENCE OF THE

NAACP, eta!.,

Defendant-Intervenors,

KENNETH SULLIVAN, et al.,

Defendant-Intervenors,

and

NATIONAL COUNCIL OF LA RAZA, and

LEAGUE OF WOMEN VOTERS OF FLORIDA,

Defendants-Intervenors.

)

) NO. 1:11-CV-01428

) (CKK-MG-ESH)

~ THREE JUDGE COURT

)

~~~~~~~~~~~~~~~~)

DEFENDANT UNITED STATES' FIRST SET OF INTERROGATORIES TO THE

STATE OF FLORIDA

Defendant United States of America requests that the State of Florida respond to the

following interrogatories in accordance with Federal Rules of Civil Procedure 33, Local Rules

5.2 and 26.2, and the Court's Order dated November 3, 2011 (Docket No. 61). This request is

continuing in nature as provided in Federal Rule of Civil Procedure 26(e).

Case 4:12-mc-00003-RH-WCS Document 25-4 Filed 01/30/12 Page 3 of 15

- 2 -

DEFINITIONS

As used herein, the following terms have the following meanings:

1. To "identify" in reference to a person means to state a person's full name,

present or last known business address and business telephone number, present or last known

employer and job title, and (if no business address or telephone number is available), present

or last known home address and home telephone number.

2. To "identify" in reference to governmental agencies, firms partnerships,

corporations, proprietorships, associations or other entities, means to state their names, and

each of their present or last known addresses.

3. To "identify" in reference to documents means to state the form, name, or title

of any document and the date it was prepared; parties to the document and the substance

thereof; and to identify the person or persons who prepared it, its present location and its

custodian .

. 4. To "identify" in reference to oral statements and communications means to

state when and where they were made; identify each of the makers and recipients thereof, in

addition to all others present; indicate the medium of communication; and state their

substance.

5. A "document" means any "writing," "recording," or "photograph" within the

meaning of Federal Rule of Evidence 1001, including but not limited to any information

stored, produced, or generated by a computer system, whether by word processing, electronic

mail, or any other form; any information stored, produced, or generated by telephone,

including voice mail messages or any other form; and includes each copy of a document that

Case 4:12-mc-00003-RH-WCS Document 25-4 Filed 01/30/12 Page 4 of 15

- 3 -

contains any attachment, notes, or markings which are in the possession or control of the

answering party.

6. The term "you" or "your" means the State of Florida, the Secretary of

State, the Office of the Secretary of State, and the Division of Elections, as well as all

officers, employees, agents and attorneys for the State of Florida, the Secretary of State, the

Office of the Secretary of State, and the Division of Elections.

7. The phrase "four sets of voting changes for which Florida seeks judicial

preclearance" refers to the four sets of voting changes at issue in this lawsuit. The four sets of

voting changes are part of House Bill 1355 enacted by the Florida Legislature and codified at

Chapter 2011-40, Laws of Florida. The changes include the following: (1) the procedures for

third-party voter registration organizations (Section 4) (97.0575, Fla. Stat.); (2) the time frame

that signatures are valid for citizen initiatives to amend the state constitution (Section 23)

(100.371, Fla. Stat.); (3) election-day polling place procedures for voters who have moved from

the voting precinct in which they are registered to vote to a voting precinct in a different county

(Section 26) (101.045, Fla. Stat.); and (4) early voting procedures, including changes in the

number of early voting days and hours for county, state, and federal elections (Section 39)

(101.657, Fla. Stat.).

INSTRUCTIONS

In answering each interrogatory:

(a) identify each person who prepared or assisted in the preparation of the

interrogatory;

(b) state whether the answer is within the personal knowledge of the

Case 4:12-mc-00003-RH-WCS Document 25-4 Filed 01/30/12 Page 5 of 15

-4-

person answering the interrogatory and, if not, the identity of each person known to have

personal knowledge of the answer;

( c) identify each person who provided information or input, or who

was interviewed or consulted in order to complete the interrogatory;

(d) identify each document not prepared in anticipation of this litigation

that was used in any way to formulate the answer to the interrogatory;

( e) identify each person who possessed documents not prepared in anticipation of

this litigation which were used in any way to formulate the answer to the interrogatory; and

(f) to the extent these interrogatories seek identification or production of

communications and/or documents, all non-privileged communications and/or documents are to

be disclosed/divulged that are in the possession of the State of Florida, its attorneys,

investigators, agents, employees or other representatives of the State and its attorneys. To the

extent the State of Florida claims any relevant communications and/or documents to be

privileged, the United States requests a list identifying each communication and/or document and

the specific privilege asserted. See Fed. R. Civ. P. 26(b)(5) and the Court's Order at 6 (Nov. 3,

2011).

INTERROGATORY NO. 1

Identify all facts, and every individual with personal knowledge of any of the following

incidents, events, statements or statistics which either (1) prompted the sponsor(s) and/or

legislators named below ofHB1355 and its companion bill SB2086 to introduce, amend or

otherwise support each of the four sets of voting changes for which Florida seeks judicial

preclearance, or (2) prompted legislators named below to oppose one or more of the four sets of

voting changes for which the State seeks judicial preclearance:

Case 4:12-mc-00003-RH-WCS Document 25-4 Filed 01/30/12 Page 6 of 15

- 5 -

(a) the reference to previous third-party voter registration "mishaps" that "leaked

through" (Representative Baxley, April 14, 2011 House Committee on State

Affairs at 1 :08:16);

(b) the statement that early voting in Miami-Dade has not been efficient based on

costs per votes and low voter turnout for early voting (Senator Diaz de La Portilla,

April 15, 2011 Senate Rules Committee Hearing at 52:60)

( c) the statement that the "evidence is clear" that most of early voting takes place in

the last seven days of the early voting period (Senator Diaz de la Portilla, April 26

Senate Budget Committee Hearing at 1:16:32);

( d) the statement that early voting has not increased overall turnout but has increased

costs (Senator Diaz de la Portilla, April 26 Senate Budget Committee Hearing at

1:22:44);

( e) . the statement that people who vote early overwhelmingly vote by absentee ballot;

and "more and more" voters prefer to cast absentee ballots, which is the "fastest

[growing] area" of voting (Senator Diaz de la Portilla, April 15, 2011 Senate

Rules Committee Hearing at 59:04; April 26, Senate Budget Committee Hearing

at 1:24:10);

(:f) the statement that there have been "allegations of falsifying hundreds of voter

registration applications" (Representative Eisnaugle, April 20, 2011 House Floor

Session at 47:08)

(g) the reference to the 2009 mayoral election, and voters who changed address on

Election Day (Representative Van Zant, April 20 House Floor Debate at 55:09)

(h) the statement that 12,000 voters changed address on Election Day in 2010

(Senator Rich, April 26 Senate Budget Committee Hearing at 1 :56:34)

(i) the statement that "people in Africa ... in the desert ... walk 200-300 miles so

they" can vote and therefore voting need not be made any more convenient for

voters (Senator Bennett, May 5 Senate Floor Debate at 35:40);

G) the statement that approximately 150,000 Florida voters updated addresses at the

polls on Election Day in 2008 and cast a regular ballot (Representative

Pafford, May 5 House Floor Debate 36:33)

(k) the rationale and justifications for eliminating early voting on the Sunday

immediately before a Tuesday Election Day for county, state, or federal elections.

Case 4:12-mc-00003-RH-WCS Document 25-4 Filed 01/30/12 Page 7 of 15

- 6 -

Identify all documents supporting your response to Interrogatory No. 1, including but not

limited to DS-DE 34 forms (entitled "Elections Fraud Complaint") (dating from January 2007 to

June 1, 2011) submitted to the Division of Elections.

INTERROGATORY NO. 2

Identify all facts, and every individual with personal knowledge of the following:

(a) the "loophole" of voters casting multiple ballots on Election Day identified by the

Secretary of State in his August 18, 2011 editorial published in the Orlando Sun

Sentinel and page 11 of your July 25, 2011 Supplemental Memorandum to the

United States (identified in Plaintiffs Rule 26(a)(l)(A) Initial Disclosures at 3,

if 2);

(b) the "burden on poll workers" related to early voting as referenced in the Secretary

of State's May 20, 2011 editorial published in the St. Petersburg Times; and

( c) the basis for the statement that "Florida's early voting remains at 96 hours" and

that early voting will be "more accessible now than ever before," as referenced in

the Secretary of State's May 20, 2011 editorial in the St. Petersburg Times.

INTERROGATORY NO. 3

With respect to the history, development,. and implementation of each of the four sets of

voting changes for which the State seeks judicial preclearance, identify every document, ·

memorandum, report or other written communication of any type involving your office and

members of the legislature (including all committees and subcommittees); county election

officials (including but not limited to Supervisors of Elections), their staff, agents and counsel;

other state agencies; and/or any election-related organizations or associations, including but not

limited to the Florida State Association of Supervisors of Elections.

INTERROGATORY NO. 4

Identify the nature of and the schedule for training relating to any of the four sets of

voting changes for which the State seeks judicial preclearance, including but not limited to

training for Supervisors of Elections, their staff, agents and counsel; other state agencies; and/or

Case 4:12-mc-00003-RH-WCS Document 25-4 Filed 01/30/12 Page 8 of 15

-7-

any election-related organizations or associations, including but not limited to the Florida State

Association of Supervisors of Elections. Identify all documents supporting your response to this

Interrogatory.

INTERROGATORY NO. 5

Identify all individuals, interested parties, and organizations, including but not limited to

all third-party voter registration organizations, which received notice from your office of the

requirements contained in Section 4 of Chapter 2011-40 (amending 97.0575 Fla. Stat.) and the

Emergency Rules implementing this provision of law.

INTERROGATORY NO. 6

Identify each criterion the Secretary will use to determine: (1) when the Secretary may

refer a matter to the Attorney General for enforcement under 97.0575, Fla. Stat., and (2) when

the Secretary may waive the fines imposed for failure to timely deliver the voter registration ·

application in the case of force maj eure or impossibility of performance pursuant to the same

provision oflaw.

INTERROGATORY NO. 7

Identify all third-party voter registration organizations that were registered as of May 19,

2011 under the predecessor to 97.0575 Fla. Stat., and have:

(a) withdrawn as registered third-party voter registration organizations;

(b) re-registered pursuant to the requirements of97.0575, Fla. Stat.;

( d) failed to comply with the 90-day re-registration requirement and have had their

registration cancelled.

Identify and describe all documents supporting your response to this Interrogatory,

including but not limited to Forms DS-DE 119, 120, 121, 123, and 124.

Case 4:12-mc-00003-RH-WCS Document 25-4 Filed 01/30/12 Page 9 of 15

- 8 -

INTERROGATORY NO. 8

Identify all third-party voter registration organizations and agents not previously

registered with the Secretary of State as of May 19, 2011, that have registered pursuant to the

requirements set forth in 97.0575, Fla. Stat., and Rule lS-2.042, along with all documents each

identified organization and agent has submitted to the Division of Elections, including but not

limited to forms DS-DE 119, 120, and 123.

INTERROGATORY NO. 9

For every voter in the State registered by all third-party voter registration organizations

since May 19, 2011, pursuant to the provisions of 97.0575, Fla. Stat., identify the race and/or

ethnicity of the individual registered and the County where registered, along with documents or

databases supporting your response to this Interrogatory, including but not limited to DS-DE 124

forms.

INTERROGATORY NO. 10

For each year since January 1, 2007, identify the total number of voters in Collier,

Hardee, Hendry, Hillsborough, and Monroe Counties, categorized by race and/or ethnicity,

registered through third-party voter registration organizations, and the total number of voters,

categorized by race and/or ethnicity, registered through any other method of voter registration. If

such information is unavailable, ideJJ.tify the total number of voters registered in Collier, Hardee,

Hendry, Hillsborough, and Monroe Counties for each year since 2007, categorized by race

and/or ethnicity.

INTERROGATORY NO. 11

For each year since January 1, 2007, identify the total number of voter registration

applications received by an election official in Collier, Hardee, Hendry, Hillsborough, and

Case 4:12-mc-00003-RH-WCS Document 25-4 Filed 01/30/12 Page 10 of 15

- 9 -

Monroe Counties from a third-party voter organization within 48 hours of the completion of the

application, and the total number received from a third-party voter registration orgamzation more

than 48 hours after the application was completed. If this information is not currently available,

for each year since January 1, 2007, identify the total number of voter registration applications

(regardless of the source of the voter registration application) received by an election official in

Collier, Hardee, Hendry, Hillsborough, and Monroe Counties within 48 hours of their

completion. Identify and describe all documents supporting your response to this Interrogatory.

INTERROGATORY NO. 12

Identify all individuals, third-party organizations, registered agents and any other entities

whom the State is currently investigating or has investigated for alleged violations of 97.0575,

Fla. Stat. For each such investigation, identify: (1) the incident(s) forming the basis of the

investigation, including the time, date and all other relevant facts; (2) the number of voter

registration applications submitted by the organization, agent, or entity, and the race and/or

ethnicity of each the voter registration applicants whose form was submitted, and (3) whether the

investigation has been or will be referred to the Attorney General. This interrogatory covers the

time period from May 19, 2011. Identify and describe all documents supporting your response

to this Interrogatory.

INTERROGATORY NO. 13

Identify voter statistics (and all sources or databases for such statistics) for all counties in

the State of Florida in each county, state, or federal election since January 1, 2005. For each

such election, please indicate the total number, categorized by race and/or ethnicity, for each of

the following: (a) voters who have changed their address on Election Day, (b) voters who

changed their address on Election Day to a different .county from the county in which they were

Case 4:12-mc-00003-RH-WCS Document 25-4 Filed 01/30/12 Page 11 of 15

-10-

registered to vote, and ( c) voters who changed their address on Election Day but remained in the

same county in which they were registered to vote. If any of these statistics are not available,

identify all facts, persons, documents or analyses to support the basis for a statement that such

data is not available, and identify what data is available.

INTERROGATORY NO. 14

Identify all communications sent from the Office of the Secretary of State to Supervisors

of Elections since May 19, 2011 concerning the procedures to be used for verifying whether a

voter who has moved from one county to another is eligible to vote in the particular precinct in

which he or she casts a provisional ballot on Election Day pursuant to 101.045, Fla. Stat.

INTERROGATORY NO. 15

Identify voter turnout statisties (and all sources or databases for such statistics) for each

county, state, and/or federal election held in Collier, Hardee, Hendry, Hillsborough, and Monroe

Counties since January 1, 2006. For each such election, please indicate the total number,

categorized by race and/or ethnicity, for each of the following: (a) the number of registered

voters at the time of the election, (b) the number of persons who voted in the election (by

absentee ballot, by early voting, and on Election Day), and(c) the number of persons who voted

in person on each day of the early voting period, and ( d) the early voting days and hours utilized

for the five counties referenced in this Interrogatory.

INTERROGATORY NO. 16

Please (a) identify the days and hours of early voting in all counties in the State of Florida

in county, state, and/or federal election since January 1, 2006 and prior to the adoption of

101.657, Fl. Stat.," (b) identify the names of counties anywhere in the State of Florida that will

continue to have 96 hours of early voting before each county, state, or federal election in 2012,

Case 4:12-mc-00003-RH-WCS Document 25-4 Filed 01/30/12 Page 12 of 15

- 11 -

and ( c) identify the names of counties anywhere in the State of Florida that will have less than 96

hours of early voting before each county, state, or federal election in 2012, as well as the number

of early voting hours planned for each county.

INTERROGATORYN0.17

For each year since 2000, identify all citizen petitions initiated, including a description of

the subject matter of the petition, the petition's sponsors (including name and race/ethnicity), and

the number of days that passed between the collection of the first signature and the date upon

which the Secretary of State determined that valid and verified petition forms had been signed by

the constitutionally required number and distribution of electors. For each such petition .

identified, please indicate if and when (by date) the petition was placed on the ballot and whether

the sponsor(s) of each identified petition utilized a professional petition signature-collecting

entity in order to collect the constitutionally required number and distribution of electors.

Identify all documents and databases supporting your response to this Interrogatory.

INTERROGATORY NO. 18

Identify all persons within your employ who have knowledge of the enactment, history,

development and implementation of the four sets of voting changes for which the State seeks

judicial preclearance.

Pursuant to the Court's Order at 5 (Nov. 3, 2011), the United States has a maximum of

twenty-five (25) interrogatories. The United States reserves its right to propound the remaining

seven (7) Interrogatories at a future date consistent with the Federal Rules of Civil Procedure and

the Court's February 29, 2012, deadline for discovery as set forth in the aforementioned Order.

Case 4:12-mc-00003-RH-WCS Document 25-4 Filed 01/30/12 Page 13 of 15

Date: November 15, 2011

RONALD C. MACHEN, JR.

United States Attorney

District of Columbia

- 12 -

Respectfully submitted,

THOMAS E. PEREZ

Assistant Attorney General

Civil Rights Division

Isl Elise Sandra Shore~

T. CHRISTIAN HERREN JR

JOHN ALBERT RUSS IV

ELISE SANDRA SHORE

Attorneys, Voting Section

Civil Rights Division

United States Department of Justice

950 Pennsylvania Ave; NW

Room NWB-7254

Washington, D.C. 20530

Telephone: (202) 305-0070

Facsimile: (202) 307-3961

Elise.Shore@usdoj.gov

Case 4:12-mc-00003-RH-WCS Document 25-4 Filed 01/30/12 Page 14 of 15

- 13 -

Certificate of Service

I certify that on November 15, 2011, I served the foregoing Defendant United States'

First Set of Interrogatories to the State of Florida by electronic mail upon the following counsel

of record:

COUNSEL FOR THE STATE OF FLORIDA

William S. Consovoy

J. Michael Connolly

Wiley Rein LLP

1776 K St., NW

Washington, DC 20006

wconsovoy@wileyrein.com

mconnolly@wileyrein.com

Daniel E. Nordby

Ashley E. Davis

Florida Department of State

R.A. Gray Building

500 S. Bronough Street

Tallahassee, FL 32399-0250

daniel.nordby@dos.myflorida.com

ashley.davis@dos.myflorida.com

COUNSEL FOR THE SULLIVAN GROUP

Arthur B. Spitzer

American Civil Liberties Union

of the Nation's Capital

1400 20th Street, N.W., Suite 119

Washington, D.C. 20036

art@aclu-nca.org

M. Laughlin McDonald

American Civil Liberties

Union Foundation, Inc.

230 Peachtree Street, NW

Suite 1440

Atlanta, GA 30303-1227

lmcdonald@aclu.org

Randall C. Marshall

American Civil Liberties Union

Foundation of Florida, Inc.

4500 Biscayne Blvd Suite 340

Miami, FL 33137

rmarshall@aclufl.org

Estelle H. Rogers

Project Vote

73 7 112 8th St., SE

Washington, DC 20003

erogets@projectvote.org

COUNSEL FOR THE NAACP GROUP

John Payton

Debo P. Adegbile

Ryan P. Haygood

Dale E. Ho

Natasha M. Korgaonkar

NAACP Legal Defense and Educational

Fund, Inc. ·

99 Hudson Street, Suite 1600

New York, New York 10013

dho@naacpldf.org

COUNSEL FOR THE NCLR GROUP

Jon Greenbaum

Mark A. Posner

Lawyers' Committee for Civil Rights Under

Law

1401 New York Avenue, NW, Suite 400

Washington, D.C. 20005

(202) 662-8389 (phone)

(202) 628-2858 (fax)

Case 4:12-mc-00003-RH-WCS Document 25-4 Filed 01/30/12 Page 15 of 15

mposner@lawyerscommittee.org .

Daniel C. Schwartz

Rodney F. Page

Alec W. Farr

Daniel T. O'Connor

Ian L. Barlow ·

Bryan Cave LLP

1155 F Street, NW, Suite 700

Washington, D.C. 20004

dcschwartz@bryancave.com

- 14 -

Wendy Weiser

Lee Rowland

Diana Kasdan

The Brennan Center for Justice at

NYU Law School

161 A venue of the Americas, Floor 12

New York, NY 10013-1205

lee.rowland@nyu.edu

Isl Elise Sandra Shore ~Elise

Sandra Shore

Trial Attorney

Voting Section

Civil Rights Division

Department of Justice

202-305-0070

Elise. Shore@usdoj.gov

Case 4:12-mc-00003-RH-WCS Document 25-5 Filed 01/30/12 Page 1 of 28

EXHIBIT 5

Case 4:12-mc-00003-RH-WCS Document 25-5 Filed 01/30/12 Page 2 of 28

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

STATE OF FLORIDA,

Plaintiff,

UNITED STATES OF AMERICA and

ERICH. HOLDER, JR., in his official capacity

as Attorney General,

Defendants,

FLORIDA STATE CONFERENCE OF THE

NAACP, et al.,

Defendant-Intervenors,

KENNETH SULLIVAN, et al.,

Defendant-Intervenors,

NATIONAL COUNCIL OF LA RAZA, and

LEAGUE OF WOMEN VOTERS OF

FLORIDA,

Defendant-Intervenors.

No. 1:11-cv-1428-CKK-MG-ESH

FLORIDA'S RESPONSES TO FIRST SET

OF INTERROGATORIES OF DEFENDANT UNITED STATES

Plaintiff, the State of Florida by and through Secretary of State Kurt Browning

("Florida"), hereby submits the following responses to the First Set of Interrogatories of

Defendant United States dated November 15, 2011.

GENERAL OBJECTIONS

The following General Objections apply to every paragraph of the First Set of

Interrogatories of the United States:

Case 4:12-mc-00003-RH-WCS Document 25-5 Filed 01/30/12 Page 3 of 28

1. Florida objects to every interrogatory that calls for privileged information,

including, without limitation, (1) information protected by the attorney-client privilege; (2)

information prepared in anticipation of litigation or trial; or (3) information containing or

reflecting the mental impressions, conclusions, opinions, or legal theories of any attorney for

Plaintiff and subject to the attorney work-product doctrine.

2. Florida objects to every interrogatory that is overly broad, unduly burdensome,

harassing, duplicative or which requests documents which are already in the possession of

Defendants.

3. Florida objects to every interrogatory that calls for information which is neither

relevant to the subject matter of the pending action nor reasonably calculated to lead to the

discovery of admissible evidence in connection with the pending Complaint.

4. Florida objects to every interrogatory, and to every introductory "defmition" or

"instruction," that seeks to impose obligations beyond those required by the Federal Rules of

Civil Procedure, as reasonably interpreted and supplemented by the Local Rules of the District

Court for the District of Columbia and any orders entered by this Court.

5. Florida objects to every interrogatory that seeks the production of documents on

the basis that such discovery is beyond the scope of Rule 33.

6. Florida reserves all objections as to the competence, relevance, materiality,

admissibility, or privileged status of any information provided in. response to these

interrogatories, unless specifically stated otherwise.

7. Florida has responded to these interrogatories to the best of its present ability.

Florida reserves the right to supplement, revise, correct, or clarify any of these responses, if

necessary or appropriate. ·

Case 4:12-mc-00003-RH-WCS Document 25-5 Filed 01/30/12 Page 4 of 28

In addition to these objections, Florida further objects to Defendants' interrogatories as

indicated below.

RESPONSES TO INTERROGATORIES

INTERROGATORY NO. 1

Identify all facts, and every individual with personal lmowledge of any of the

following incidents, events, statements or statistics which either (1) prompted the

sponsor(s) and/or legislators named below ofHB1355 and its companion bill SB2086 to

introduce, amend or otherwise support each of the four sets of voting changes for which

Florida seeks judicial preclearance, or (2) prompted legislators named below to oppose one

or more of the four sets of voting changes for which the State seeks judicial preclearance.

Response

Florida objects to this interrogatory to the extent it seeks speculation regarding the facts,

incidents, events, or statistics that may have prompted the individual legislators identified in the

interrogatory to support or oppose one or more of the four sets of voting changes on the grounds

that this request exceeds the bounds of permissible discovery. Expressly reserving and without

waiving the general objections and this specific objection, Florida agrees to respond to the extent

any individual employed by or acting on behalf of the Florida Department of State has personal

.knowledge of the incidents, events, statements, or statistics referenced by the identified

legislators, and states as follows:

Florida has no personal knowledge of the particular incidents, events, statements and

statistics identified in the interrogatory by legislators speaking in support of or opposition to HB

1355 and SB 2086.

INTERROGATORY NO. 2

Case 4:12-mc-00003-RH-WCS Document 25-5 Filed 01/30/12 Page 5 of 28

Identify all facts, and every individual with personal knowledge of the following:

(a) the "loophole" of voters casting multiple ballots on Election Day identified by the

Secretary of State in his August 18, 2011 editorial published in the Orlando Sun

Sentlnel and page 11 of your July 25, 2011 Supplemental Memorandum to the

United States (identified in Plaintiff's Rule 26(a)(l)(A) Initial Disclosures at 3, ~

2);

(b) the "burden on poll workers" related to early voting as referenced in the

Secretary of State's May 20, 2011 editorial published in the St. Petersburg Tlmes;

and

that early voting will be "more accessible now than ever before," as referenced

in the Secretary of State's May 20, 2011 editorial in the St. Petersburg Times.

Response

(a) The "loophole" referred to in the Secretary of State's August 18 editorial refers to

a provision in the benchmark statute that would allow a single elector to cast regular ballots in

more than one county for the same election. The change sought to be precleared closes this

loophole by allowing these electors to cast provisional ballots in their new county of residence,

whlch must be counted unless the canvassing board determines that the elector was ineligible to

vote.

Under the benchmark practice, any elector who arrived to vote at a precinct in which he

or she was not registered, and who provided a change-of-address affirmation, was permitted to

vote a regular ballot upon verification of his or her registration alone. No means existed to verify,

at the polling location, that a registered elector had not already voted in hls or her former county.

Case 4:12-mc-00003-RH-WCS Document 25-5 Filed 01/30/12 Page 6 of 28

Although many polling sites have electronic access to the Florida Voter Registration System

database, this database does not provide contemporaneous voter history information that would

allow a poll worker to verify that an out-of-county elector had not already cast a ballot.

Nor would verification be feasible on Election Day itself. A poll worker at the new

precinct would need to verify with the supervisor of elections from that elector's former county

that the elector had not returned an absentee ballot or cast a ballot during the early voting period.

The former county's supervisor of elections would also need to contact a poll worker at the

elector's former precinct to confirm that the elector had not already cast a ballot at that location

in the former county. All of this information would then need to be conveyed to the poll worker

at the new precinct before the elector would be able to cast a ballot. This process - even if it

were feasible - would introduce a significant delay in the voting process and would impede the

orderly operation of polling sites and supervisors' offices on Election Day.

In contrast, the change sought to be precleared would allow the elector's eligibility to be

verified by the supervisor of elections at any time before provisional ballots are canvassed. The

standards for canvassing a provisional ballot were not changed by HB 1355. A provisional ballot

"shall be counted unless the canvassing board determines by a preponderance of evidence that

the person was not entitled to vote."§ 101.048(2)(a), Fla. Stat. In determining whether a person

casting a provisional ballot was entitled to vote, the county canvassing board must review the

information provided in the Voter's Certificate and Affirmation, any written evidence provided

by the person casting the ballot, any other evidence presented by the supervisor of elections, and,

in the case of a challenge, any evidence presented by the challenger.§ 101.048(2)(a), Fla. Stat.

In the case of a provisional ballot cast by an out-of-county elector under the change

sought to be precleared, Florida does not anticipate any need for the elector to provide additional

Case 4:12-mc-00003-RH-WCS Document 25-5 Filed 01/30/12 Page 7 of 28

· information regarding eligibility to the canvassing board (although the elector has the right to

provide additional information). Instead, the supervisor of elections in the county where the

provisional ballot is cast would be responsible for verifying with the former county that the

elector had not already cast a ballot and presenting this evidence to the canvassing board.

(b) The ''burden on poll workers" referred to in the Secretary of State's May 20

editorial refers to the provision in the benchmark statute requiring every early voting site in

every county to be open for the same number of hours on each weekday (and the same number of

aggregate hours on each weekend) during the early voting period. The change sought to be

precleared reduces this burden by granting additional flexibility to county supervisors of

elections to adjust early voting hours to the needs oftlie voters in their counties.

The manner in which each supervisor of elections chooses to exercise this discretion will

be determined by the circumstances in his or her county. Florida anticipates that the large~ and

medium-sized counties that have historically had the largest early voting turnout will continue to

provide 96 total hours of early voting over the early voting period during the August primary and

November general elections.

In smaller counties that have not experienced a large early voting turnout, some

supervisors of elections may choose to reduce the number of early voting hours from the eight

hours per day required by the benchmark statute. In no circums~ce, however, may fewer than

six hours of early voting be offered per day during the early voting period. This change will

allow local supervisors of elections to reduce the burden on poll workers where additional hours

of early voting have been determined to be unnecessary.

For the Florida counties that are covered jurisdictions under Section 4 of the Voting

Rights Act, the particular choice of early voting hours within the range authorized by statute

Case 4:12-mc-00003-RH-WCS Document 25-5 Filed 01/30/12 Page 8 of 28

would be subject to a separate preclearance requirement under Section 5 of the Voting Rights

Act.

increased accessibility of early voting and the number of hours available refer to the differences

between the benchmark statute and the change sought to be precleared. Both the benchmark

statute and the new law provide for up to 96 hours of early voting.

The change sought to be precleared increases accessibility to the convenience of early

voting in several ways. First, the change sought to be precleared requires counties to offer

additional hours of weekend early voting. Under the.benchmark statute, weekend early voting

was limited to a total of 16 hours. The change sought to be precleared requires counties to offer a

minimum of 18 hours of weekend early voting and allows counties to offer as many as 36 hours

of weekend early voting. As noted in the response to paragraph (b) above, Florida anticipates

that the counties that have historically experienced the largest early voting turnout will offer the

full 36 hours of weekend early voting.

Second, the change sought to be precleared will increase the accessibility of early voting

by requiring all counties to offer Sunday early voting. Under the benchmark statute, counties

were required to offer an aggregate of 8 hours of early voting on each of two weekends. Many

counties- including each of Florida's five covered jurisdictions- chose to offer weekend early

voting only on Saturdays. The change sought to be precleared would require every county in

Florida to offer three full days of weekend early voting, from 6-12 hours per day, including a

requirement to hold early voting on a Sunday.

Finally, the change sought to be precleared will increase the accessibility of early voting

by allowing supervisors of elections to hold up to 12 hours of early voting on each weekday, up

Case 4:12-mc-00003-RH-WCS Document 25-5 Filed 01/30/12 Page 9 of 28

from a maximum of 8 hours per day under the benchmark statute. Counties that choose to offer

12 hours of weekday early voting will make voting more accessible to those electors whose

schedules will not permit them to early vote during the ordinary workday. Expanded weekday

early voting hours will allow these electors to early vote before or after work, thereby increasing

the accessibility of early voting.

INTERROGATORY NO. 3

With respect to the history, development, and implementation of each of the four

sets of voting changes for which the State seeks judicial preclearance, identify every

document, memorandum, report or other written communication of any type involving

your office and members of the legislature (including all committees and subcommittees);

county election officials {including but not limited to Supervisors of Elections), their staff

agents and counsel; other state agencies; and/or any election~related organizations or

associations, including but not limited to the Florida State Association of Supervisors of

Elections.

Response

Expressly reserving and without waiving the general objections, Florida states as follows:

In accordance with Federal Rule of Civil Procedure 33 ( d), the response to this

interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing

the Florida Department of State's business records. Copies of the applicable documents will

therefore be provided for Defendants to review and examine.

INTERROGATORY NO. 4

Identify the nature of and the schedule for training relating to any of the four sets of

voting changes for which the State seeks judicial preclearance, including but not limited to

Case 4:12-mc-00003-RH-WCS Document 25-5 Filed 01/30/12 Page 10 of 28

training for Supervisors of Elections, their staff, agents and counsel; other state agencies;

and/or any election-related organizations or associations, including but not limited to the

Florida State Association of Supervisors of Elections. Identify all documents supporting

your response to this Interrogatory.

Response

Expressly reserving and without waiving the general objections, Florida states as follows:

The Department of State presented training and information regarding implementation of

the four sets of voting changes at the FSASE Annual Summer Conference (June 19-23, 2011)

and at the FSASE Canvassing Board Workshop I Winter Business Meeting (December 9-10,

2011 ). The Department of State also hosted Supervisor of Elections conference calls on

November 1 and December 14, 2011, at which one or more of the four voting changes were

discussed.

Documents supporting this response include the PowerPoint presentations created for the

FSASE Conferences and the agenda/meeting materials for the Supervisor of Elections

conference calls.

INTERROGATORY NO. 5

Identify all individuals, interested parties, and organizations, including but not

limited to all third-party voter registration organizations, which received notice from your

office of the requirements contained in Section 4 of Chapter 2011-40 (amending 97.0575

Fla. Stat.) and the Emergency Rules implementing this provision oflaw.

Response

Florida objects to this interrogatory to the extent it seeks the identification of "all

individuals, interested parties, and organizations" that received notice from the Department of

Case 4:12-mc-00003-RH-WCS Document 25-5 Filed 01/30/12 Page 11 of 28

State regarding a statutory change on the basis that the request is overly broad, vague, and

unduly burdensome. Expressly reserving and without waiving the general objections or these

specific objections, Florida states as follows:

Notice of the requirements of Section 4 of Chapter 2011-40 was provided by mail to the

address ofrecord for all third-party voter registration organizations registered as of May 19,

2011. Exhibit A.

Notice of these requirements was also posted on the Department of State's public website

and was provided by email to each Supervisor of Elections. The Emergency Rules implementing

this statute were published in the Florida Administrative Weekly, were emailed to each

Supervisor of Elections, and were posted on the Department of State's public website.

INTERROGATORY NO. 6

Identify each criterion the Secretary will use to determine: (1) when the Secretary

may refer a matter to the Attorney General for enforcement under 97.0575, Fla. Stat., and

(2) when the Secretary may waive the fines imposed for failure to timely deliver the voter

registration application in the case of force majeure or impossibility of performance

pursuant to the same provision of law.

Response

Expressly reserving and without waiving the general objections, Florida states as follows:

If the Secretary of State reasonably believes that a person has committed a violation of

Section 97 .0575, Florida Statutes, the law provides that he may refer the matter to the Attorney

General for enforcement. In exercising this authority, the Secretary's principal concern will be

for the protection of applicants who have entrusted their voter registration applications to a thirdparty

voter registration organization. The third-party voter registration organization serves as a

Case 4:12-mc-00003-RH-WCS Document 25-5 Filed 01/30/12 Page 12 of 28

fiduciary to these applicants, who have a right to expect that their applications will be promptly

delivered to an elections official irrespective of party affiliation, race, ethnicity, or gender.

The Secretary of State will carefully consider the facts and circumstances of each

incident before determining whether a matter will be referred to the Attorney General for

enforcement. Some of the criteria that would lead the Secretary to refer a violation of Section

97.0575 to the Attorney General include:

'• Voter harm: Any evidence reasonably suggesting that an applicant or registered voter has

been directly harmed by the violation, e.g., evidence that a voter registration application

was collected by a third-party before a book-closing deadline but was not delivered to a

supervisor of elections until after the applicable deadline, thereby depriving the applicant

of the right to cast a ballot at that election.

• History: Any evidence reasonably suggesting that the person or entity at issue has

violated the third-party voter registration statute on more than one separate occasion,

particularly if the person or entity at issue has been notified of the prior violations by the

Department of State or a Supervisor of Elections.

• Other Violations of the Election Code: Any evidence reasonably suggesting that the

person or entity at issue has violated additional provisions of the Election Code regarding

voter registration, e.g., altering the voter registration application of another person

without the other person's knowledge and consent.

In contrast, some of the criteria that would lead the Secretary not to refer a violation of

Section 97.0575 to the Attorney General, or to waive the statutory fines, include:

• Force majeure or impossibility of performance: Any evidence reasonably suggesting that

the failure to timely deliver collected voter registration applications was a result of an

Case 4:12-mc-00003-RH-WCS Document 25-5 Filed 01/30/12 Page 13 of 28

unexpected or uncontrollable incident outside the control of the person or entity at issue

or the result of an incident that could not have reasonably been anticipated or controlled.

• Lack of knowledge: Any evidence reasonably suggesting that the first-time failure of a

person or entity to timely deliver collected voter registration applications resulted from a

genuine and sincere lack of knowledge regarding the applicable legal requirements.

INTERROGATORY NO. 7

Identify all third-party voter registration organizations that were registered as of

May 19, 2011 under the predecessor to 97.0575 Fla. Stat., and have:

(a) withdrawn as registered third-party voter registration organizations;

(b) re-registered pursuant to the requirements of 97.0575, Fla. Stat.;

(d) failed to comply with the 90-day re-registration requirement and have had their

registration cancelled.

Identify and describe all documents supporting your response to this Interrogatory,

including but not limited to Forms DS-DE 119, 120, 121, 123, and 124.

Response

Expressly reserving and without waiving the general objections, Florida states as follows:

The response to this interrogatory is attached as Exhibit B. The documents supporting

this response include, where applicable, Forms DS-DE 119, 120, 121, 123, and 124 for each

organization.

INTERROGATORY NO. 8

Identify all third-party voter.registration organizations and agents not previously

registered with the Secretary of State as of May 19, 2011, that have registered pursuant to

Case 4:12-mc-00003-RH-WCS Document 25-5 Filed 01/30/12 Page 14 of 28

the requirements set forth in 97 .0575, Fla. Stat., and Rule lS-2.042, along with all

documents each identified organization and agent has submitted to the Division of

Elections, including but not limited to forms DS-DE 119, 120, and 123.

Response

Expressly reserving and without waiving the general objections, Florida states as follows:

The response to this interrogatory is attached as Exhibit C. The documents supporting

this response include, where applicable, Forms DS-DE l 19, 120, and 123 for each organization.

INTERROGATORY NO. 9

For every voter in the State registered by all third-party voter registration

organizations since May 19, 2011, pursuant to the provisions of 97.0575, Fla. Stat., identify

the race and/or ethnicity of the individual registered and the County where registered,

along with documents or databases supporting your response to this Interrogatory,

including but not limited to DS-DE 124 forms.

Response

Expressly reserving and without waiving the general objections, Florida states as follows:

After a good faith search, Plaintiff lacks sufficient information or knowledge to respond

to this interrogatory. Florida does not collect voter-level data regarding the registration activities

of third-party voter registration organizations. The voter registration "source" data included in

the Florida Voter Registration System database does not differentiate between applications

delivered to a Supervisor of Elections office by a third-party voter registration organization,

applications delivered directly by the applicants, and applications collected during registration

drives conducted by the Supervisor's office itself.

Case 4:12-mc-00003-RH-WCS Document 25-5 Filed 01/30/12 Page 15 of 28

The monthly reports filed by third-party voter registration organizations on Form DS·DE

123 include only the aggregate number of applications provided to and received by the

organization's registration agents. The daily reports filed by each Supervisor of Elections on

Form DS-DE 124 likewise include only the aggregate number of applications provided to and

received from each third-party voter registration organization.

INTERROGATORY NO. 10

For each year since January 1, 2007, identify ~he total number of voters in Collier,

Hardee, Hendry, Hillsborough, and Monroe Counties, categorized by race and/or ethnicity,

registered through third-party voter registration organizations, and the total number of

votes, categorized by race and/or ethnicity, registered through any other method of voter

registration. H such information is unavailable, identify the total number of voters

registered in Collier, Hardee, Hendry, Hillsborough, and Monroe Counties for each year

since 2007, categorized by race andlor ethnicity.

Response

Expressly reserving and without waiving the general objections, Florida states as follows:

After a good faith search, Plaintiff lacks sufficient information or knowledge to fully

respond to this interrogatory. Florida does not collect voter-level data regarding the registration

activities of third-party voter registration organizations and therefore cannot identify the number

of voters in any county registered with the assistance of a third·party voter registration

organization.

In accordance with Federal Rule of Civil Procedure 33(d), the total number of voters

registered in Collier, Hardee, Hendry, Hillsborough, and Monroe Counties for each year since

2007, categorized by race and/or ethnicity, may be determined by examining, auditing,

Case 4:12-mc-00003-RH-WCS Document 25-5 Filed 01/30/12 Page 16 of 28

compiling, abstracting, or summarizing the database files previously provided by the Florida

Department of State.

INTERROGATORY NO. 11

For each year since January 1, 2007, identify the total number of voter registration

applications received by an election official in Collier, Hardee, Hendry, Hillsborough, and

Monroe Counties from a third-party voter organization within 48 hours of the completion

of the application, and the total number received from a third-party voter registration

organization more than 48 hours after the application was completed. If this information is

not currently available, for each year since January 1, 2007, identify the total number of

voter registration applications (regardless of the source of the voter registration

application) received by an election official in Collier, Hardee, Hendry, Hillsborough, and

Monroe Counties within 48 hours of their completion. Identify and describe all docUD1ents

supporting your response to this Interrogatory.

Response

Expressly reserving and without waiving the general objections, Florida states as follows:

After a good faith search, Plaintiff lacks sufficient information or knowledge to respond

to this interrogatory. Florida does not collect (1) voter-level data regarding the registration

activities of third-party voter registration organizations; or (2) data regarding the date on which

voter registration applications are completed by the applicant. The registration date recorded in

the Florida Voter Registration System for each voter is generally the date the application was

received by the applicable election official. Florida therefore cannot identify the number of

applications received in any county within 48 hours of their completion, whether those

applications were delivered by a third-party voter registration organization or otherwise.

Case 4:12-mc-00003-RH-WCS Document 25-5 Filed 01/30/12 Page 17 of 28

The documents supporting this response include the Florida Voter Registration System

database files previously provided by the Florida Department of State.

INTERROGATORY NO. 12

Identify all individuals, third-party organizations, registered agents and any other

entities whom the State is currently investigating or has investigated for alleged violations

of 97.0575, Fla. Stat. For each such investigation, identify: (1) the incident(s) forming the

basis of the investigation, including the time, date and all other relevant facts; (2) the

number of voter registration applications submitted by the organization, agent, or entity,

and the race and/or ethnicity of each the voter registration applicants whose form was

submitted, and (3) whether the investigation has been or will be referred to the Attorney

General. This interrogatory covers the time period from May 19, 2011. Identify and

describe all documents supporting your response to this Interrogatory.

Response

Florida objects to this interrogatory to the extent it seeks information regarding pending

investigations. Florida also objects to this interrogatory to the extent that it requires speculation

regarding whether a matter ''will be" referred to the Attorney General in the future. Expressly

reserving and without waiving the general objections or these specific objections, Florida states

as follows:

The Department of State has completed its investigation of six alleged violations of

Section 97.0575. These investigations are summarized below:

Individual/Entity Description of Incident Number of Disposition

untimely

annlications

Dawn Quarles Individual in Santa Rosa 76 Referred to AG for

County failed to timely enforcement

submit voter registration (10/27/2011)

Case 4:12-mc-00003-RH-WCS Document 25-5 Filed 01/30/12 Page 18 of 28

applications in

September/October 2011.

Ms. Quarles had previously

been registered as a 3PVRO,

but had her registration

cancelled in August 2011 for

failure to re-register under

the new law.

The Supervisor of Elections

for Santa Rosa County states

that Ms. Quarles has a

history of noncompliance

with the thlrd-party voter

registration law. SOE

provided a letter to Ms.

Quarles from 2009 regarding

applications filed five

; I months late. SOE also i

disclosed that a separate

application delivered by Ms.

' Quarles after 2008 bookclosing

deadline resulted in

an applicant being ineligible

to vote in the November

2008 General Election.

Jill Cicciarelli/ Individual/entity in Volusia 50

No referral to AG.

New Smyrna Beach County failed to timely Warning/explanation

High School Student submit voter registration letter sent.

Government applications in (10/28/2011)

August/September 2011.

I Ms. Cicciarelli has never

1 been registered or associated

with a 3PVRO.

The Supervisor of Elections

for Volusia County has

contacted Ms. Cicciarelli to

explain the third-party voter

registration law and how to

No applicable book closing

deadlines were missed.

G & R Strategies, Third-party voter 101 Referred to AG for

LLC registration organization in enforcement

Case 4:12-mc-00003-RH-WCS Document 25-5 Filed 01/30/12 Page 19 of 28

Miami-Dade County,

registered in August 2011,

failed to timely submit voter

registration applications in

September 2011.

Representative of

organization stated to

Miami-Dade SOE that the

applications were not

submitted timely because

they were collected before

the 3PVRO received its

identifying number

Many of the applications

appear on their face to

' contain alterations to the

signature date recorded by

the applicants. Even with the

. alterations, the applications

would be untimely. The

Election Code prohibits the

alteration of another

; person's voter registration

1 application without that

person's knowledge or

consent.

Individual in Miami-Dade

County failed to timely

submit voter registration

, applications in September

2011. Mr. Orta was a

candidate for local office

and stated to the MiamiDade

SOE staff that he was

not a registered 3PVRO.

Miami-Dade SOE staff

;I advised him of the

. procedures and provided

pertinent information.

No applicable book closing

deadlines appear to have

been missed.

:~~~gp~ Jt; Third-party voter ·.~r

registration organization in

l'f.l'.()~~19 ~tf:o.

Warning/explanation

letter sent.

(11/2/2011)

l I

Case 4:12-mc-00003-RH-WCS Document 25-5 Filed 01/30/12 Page 20 of 28

Lee County failed to timely I letter sent.

submit voter registration (11/28/2011)

applications in September l

2011. Mr. Thigpen states

that applications collected

had not been timely

submitted due to a death in

· his family that resulted in his

travel out-of-state.

No applicable book closing .

deadlines appear to have

been missed.

Sandra McCreary I Individual/entity in 10 No referral to AG.

Delta Sigma Theta Escambia County failed to I Warning/explanation

Sorority timely submit voter letter sent.

registration applications in (11/29/2011)

September 2011. Ms. McCreary stated to SOE that I

she was unaware of the new

procedures.

Escambia SOE explained the

new third-party voter

registration law procedures

and provided a fact sheet and

I contact information to Ms.

McCreary.

No applicable book closing

deadlines appear to have

I been missed.

In accordance with Federal Rule of Civil Procedure 33(d), a complete description of the

incidents forming the basis of the investigations listed above and the race/ethnicity of each of the

voter registration applicants whose form was submitted may be determined by examining,

auditing, compiling, abstracting, or summarizing the Florida Department of State's business

records. Copies of the applicable docwnents will therefore be provided for Defendants to review

and examine.

Case 4:12-mc-00003-RH-WCS Document 25-5 Filed 01/30/12 Page 21 of 28

Florida is currently investigating two additional alleged violations of Section 97.0575 and

will agree to supplement this response at the conclusion of these investigations.

INTERROGATORY NO. 13

Identify voter statistics (and all sources or databases for such statistics) for all

counties in the State of Florida in each county, state, or federal election since January 1,

2005. For each such election, please indicate the total number, categorized by race and/or

ethnicity, for each of the following: (a) voters who have changed their address on Election

Day, (b) voters who changed their address on Election Day to a different county from the

county in which they were registered to vote, and (c) voters who changed their address on

Election Day but remained in the same county in which they were registered to vote. If any

of the statistics are not available, identify all facts, persons, documents, or analyses to

support the basis for a statement that such data is not available, and identify what data is

available.

Response

Florida objects to this interrogatory on the grounds that the phrase "voter statistics" is

unduly vague and overbroad, leaving Florida to guess at the meaning of the request. Expressly

reserving and without waiving the general objections or these specific objections, Florida states

as follows:

After a good faith search, Plaintiff lacks sufficient information or knowledge to fully

respond to this interrogatory. The Florida Voter Registration System database does not

consistently capture the date on which a voter has requested a change of registration address.

Instead, the change-of-address date in the database reflects the date that the change of address

request was processed by a Supervisor of Elections. Accordingly, a change of address

Case 4:12-mc-00003-RH-WCS Document 25-5 Filed 01/30/12 Page 22 of 28

affirmation submitted by an elector on Election Day may appear in the database on that day, or

some days or weeks after it is actually submitted.

Subject to the inherent limitations of the database described above, the database files

previously provided by the Florida Department of State represent the relevant data regarding

voter address changes. In accordance with Rule 33(d), the information sought in this

Interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing

the information in these database files.

INTERROGATORY NO. 14

Identify all communications sent from the Office of the Secretary of State to

Supervisors of Elections since May 19, 2011 concerning the procedures to be used for

verifying whether a voter who has moved from one county to another is eligible to vote in

the particular precinct in which he or she casts a provisional ballot on Election Day

pursuant to 101.045, Fla. Stat.

Response

Florida objects to this interrogatory on the basis that the request to identify all

"communications" between the Office of the Secretary of State and any Supervisor of Elections

regarding provisional ballot verification is vague, overbroad, and unduly burdensome to the

extent it seeks information regarding telephone calls, casual conversations, or isolated email

communications. Expressly reserving and without waiving the general objections or these

specific objections, Florida states as follows:

The documents identified below concern the procedures for verifying whether a voter

who has moved from one county to another is eligible to vote in the particular precinct in which

he or she casts a provisional ballot on Election Day.

Case 4:12-mc-00003-RH-WCS Document 25-5 Filed 01/30/12 Page 23 of 28

Date Document Substance

May 19, 2011 Directive 2011-01 from Directive issued regarding specific changes in

Secretary of State to Chapter 2011-40 to ensure that "elections are

Supervisors of Elections conducted in a fair and impartial manner so

that no voter is disenfranchised."

Regarding verification of eligibility for those

1 casting provisional ballots, directive notes that

"the provisional ballot shall coilllt illlless the

canvassing board determines more likely than t

not that the person was not entitled to vote.

That would occur only if the voter was not

registered or the voter voted in a precinct

other than the one that corresponds to his or

her new address [as written on the provisional

ballot certificate] or if evidence was available

before the board that either the voter had

i already voted or that the voter was

committing fraud."

December 16, 2011 Memorandum from Dr. Memorandum summarizes the responsibilities

Gisela Salas to of the supervisor of elections and canvassing

Supervisors of Elections board in verifying the eligibility of electors

re: Provisional Ballot who have cast provisional ballots:

Voters and Procedures 1. Every voter who casts a provisional

ballot has the right, regardless of the

reason for voting provisionally, to

present written evidence supporting

. I his or her eligibility to vote .

2. The Supervisor of Elections must

verify that the person is registered and

is eligible to vote at the precinct where

he or she cast a ballot.

3. The canvassing board MUST review

all information before the board to

determine whether the voter was

eligible to vote.

4. Every provisional ballot shall be

counted UNLESS the canvassing

board determines by a preponderance

of the evidence (more likely than not)

that the voter was not eligible to vote.

In accordance with Federal Rule of Civil Procedure 33( d), additional communications

that may respond to this Interrogatory may be determined by examining, auditing, compiling,

Case 4:12-mc-00003-RH-WCS Document 25-5 Filed 01/30/12 Page 24 of 28

abstracting, or summarizing the Florida Department of State's business records. Copies of the

applicable documents will therefore be provided for Defendants to review and examine.

INTERROGATORY NO. 15

Identify voter turnout statistics (and all sources or databases for such statistics) for

each county, state, and/or federal election held in Collier, Hardee, Hendry, Hillsborough,

and Monroe Counties since January 1, 2006. For each such election, please indicate the

total number, categorized by race and/or ethnicity, for each of the following: (a) the

number of registered voters at the time of the election, (b) the number of persons who

voted in the election (by absentee ballot, by early voting, and on Election Day), (c) the

number of persons who voted in person on each day of the early voting period, and (d) the

early voting days and hours utilized for the five counties referenced in this Interrogatory.

Response

Expressly reserving and without waiving the general objections, Florida states as follows:

In accordance with Federal Rule of Civil Procedure 33(d), information regarding the total

number of voters registered in Collier, Hardee, Hendry, Hillsborough, and Monroe Counties at

the time of each election, the number of persons who voted in the election (by each voting

method), and the number of persons who voted in person on each day of the early voting period

may be determined by examining, auditing, compiling, abstracting, or summarizing the database

files previously provided to Defendants by the Florida Department of State. ·

Exhibit D contains the early voting days and hours used by Collier, Hardee, Hendry,

Hillsborough, and Momoe Counties for the referenced elections.

INTERROGATORY NO. 16

Case 4:12-mc-00003-RH-WCS Document 25-5 Filed 01/30/12 Page 25 of 28

Please (a) identify the days and hours of early voting in all counties in the State of

Florida in county, state, and/or federal election since January 1, 2006 and prior to the

adoption of 101.657, Fla. Stat., (b) identify the names of counties anywhere in the State of

Florida that will continue to have 96 hours of early voting before each county, state, or

federal election in 2012, and (c) identify the names of counties anywhere in the State of

Florida that will have less than 96 hours of early voting before each county, state, or federal

election in 2012, as well as the number of early voting hours planned for each county.

Response

Expressly reserving and without waiving the general objections, Florida states as follows:

Exhibit D contains the early voting days and hours used by each county for the

referenced elections.

Under the change sought to be precleared, each county's supervisor of elections will

determine the number of hours that his or her county will hold early voting for each election held

in 2012. This information must be provided to the Department of State at least 30 days before

each election. However, Florida continues to anticipate that the large- and medium-sized

counties that have historically had the largest early voting turnout will continue to provide 96

total hours of early voting over the early voting period during the August primary and November

general elections.

In smaller counties that have not experienced a large early voting turnout, some

supervisors of elections may choose to reduce the number of early voting hours from the eight

hours per day required by the benchmark statute. In no circumstance, however, may fewer than

six hours of early voting be offered per day during the early voting period for these elections.

INTERROGATORY NO. 17

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For each year since 2000, identify all citizen petitions initiated, including a

description of the subject matter of the petition, the petition's sponsors (including name

ancl race/ethnicity), and the number of days that passed between the collection of the first

signature and the date upon which the Secretary of State determined that valid and

verified petition forms had been signed by the constitutionally required number and

distribution of electors. For each such petition identified, please indicate if and when (by

date) the petition was placed on the ballot and whether the sponsor(s) of each identified

petition utilized a professional petition signature-collecting entity in order to collect the

constitutionally required number and distribution of electors. Identify all documents and

databases supporting your response to this Interrogatory.

Response

Expressly reserving and without waiving the general objections, Florida states as follows:

After a good faith search, Plaintiff lacks sufficient information or knowledge to fully

respond to this interrogatory. The Department of State does not collect or maintain data

regarding whether an initiative petition sponsor has used a professional signature-collecting

entity.

The response to the remainder of this interrogatory is attached as Exhibit E. The database

files previously provided to Defendants by the Florida Department of State represent the relevant

data regarding constitutional initiative petitions. In accordance with Rule 33(d), any additional

information sought in this Interrogatory may be determined by examining, auditing, compiling,

abstracting, or summarizing the information in these database files.

INTERROGATORY NO. 18

Case 4:12-mc-00003-RH-WCS Document 25-5 Filed 01/30/12 Page 27 of 28

Identify all persons within your employ who have knowledge of the enactment,

history, development and implementation of the four sets of voting changes for which the

State seeks judicial preclearance.

Response

Florida objects to this request to the extent it requests the identification of "all persons"

who have any degree of "knowledge" regarding the enactment, history, development, or

implementation of any of the four changes sought to be precleared on the basis that the request is

unduly burdensome and seeks infonnation that is neither relevant nor likely to lead to the

discovery of admissible evidence. Florida will not identify any person who simply has

"knowledge" of the changes but whose role in the enactment or implementation of the changes

has been minimal. Contact with any of these individuals should be made only through counsel.

Expressly reserving and without waiving the general objections or these specific objections,

Florida states as follows:

Title Name

Executive Assistant I Mark Ard

Chief Information Officer Larry Aultman

Executive Assistant Shelby Bishop

Deputy Secretary, Corporations and Elections John Boynton ',

Chief, Bureau of Election Records Kristi Bronson 1

Senior Management Analyst ill Toshia Brown 1

Secretary of State Kurt Browning

Executive Assistant Christie Burrus !

Communications Director Chris Cate

Assistant General Counsel , Ashley Davis

Assistant General Counsel Gary Holland

Assistant Secretary/Chief of Staff Jennifer Kennedy

Assistant General Counsel Maria Matthews

Executive Assistant Betty Money

Senior Management Analyst II Joe Morgan

Case 4:12-mc-00003-RH-WCS Document 25-5 Filed 01/30/12 Page 28 of 28

General Counsel Daniel Nordby

Executive Assistant Eddie Phillips

Director, Division of Elections Dr. Gisela Salas

Director, Legislative Affairs 1 Pierce Schuessler

Regulatory Specialist III Suzie Still

Chief, Bureau of Voter Registration Services ''l Peggy Taff

(form.er)

Respectfully submitted this 16th day of December, 2011,

As to Objections:

William S. Consovoy*

(D.C. Bar No. 493423)

J. Michael Connolly

(D.C. Bar No. 995815)

WILEY REIN LLP

1776 K Street, NW

Washington, DC 20006

Tel.: (202) 719-7000

Fax: (202) 719-7049

* Counsel of Record

Daniel E. Nordby

Email: Daniel.Nordby@DOS.myflorida.com

Ashley E. Davis

Email: Ashley.Davis@DOS.myflorida.com

FLORIDA DEPARTMENT OF STATE

RA. Gray Building

500 S. Bronough Street

Tallahassee, FL 32399-0250

Tel: 850-245-6536

Updated April 18, 2023