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THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

STATE OF TEXAS,

Plaintiff

vs.

ERIC H. HOLDER, JR.,

in His Official Capacity as Attorney

General of the United States,

Defendant.

Case No. 1:12-CV-00128

(RMC, DST, RLW)

Three-Judge Court

REPLY IN SUPPORT OF MOTION TO COMPEL

Plaintiff the State of Texas files this Reply in support of its Motion to

Compel the United States to respond to its discovery requests for data,

documents, and information maintained by federal executive branch

agencies. The central contention of the United States’ response in opposition

is that the relevant federal agencies are not parties to the litigation. This

contention is neither relevant nor responsive to the State’s argument because

the relief Texas seeks does not depend on the party status of federal agencies.

Texas’s motion to compel is based on the fact that the Attorney General has

control over information in the hands of federal agencies because this

litigation is conducted on behalf of the United States, not the Attorney

General or the Department of Justice. Discovery subpoenas under Rule 45

are not necessary because the Attorney General has the legal authority to

Case 1:12-cv-00128-RMC-DST-RLW Document 159 Filed 05/29/12 of 15

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obtain the requested documents and information. The Motion to Compel

should be granted.

A. The Attorney General Is Not the “Statutory Defendant” Under

Section 5, Nor Is He the Only Party to this Declaratory

Judgment Action.

The United States maintains that “the Attorney General is the only

proper defendant that can be sued in any lawsuit seeking a declaratory

judgment under Section 5 of the Voting Rights Act.” Response at 5; cf. id. at

7 (contending that the Attorney General is “the only necessary statutory

defendant”). This position appears to rest on the contention that the

Attorney General is the “statutory defendant” under Section 5. See id. at 10

(citing 42 U.S.C. § 1973c). The United States provides no authority to

support its position, and none appears in the Voting Rights Act.

In fact, the Voting Rights Act clearly states that the Attorney

General’s enforcement authority is conferred by Congress and exercised on

behalf of the United States. See, e.g., 42 U.S.C. § 1973j(d) (“Whenever any

person has engaged or there are reasonable grounds to believe that any

person is about to engage in any act or practice prohibited by section 1973,

1973a, 1973b, 1973c, 1973e, 1973h, 1973i, or subsection (b) of this section, the

Attorney General may institute for the United States, or in the name of the

United States, an action for preventive relief . . . .”); 42 U.S.C. § 1973aa-2

(providing that the Attorney General “may institute for the United States, or

in the name of the United States, an action in a district court of the United


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States . . . for a restraining order, a preliminary or permanent injunction, or

such other order as he deems appropriate”). Moreover, the Voting Rights Act

expressly contemplates that the United States will be a party to enforcement

litigation. See 42 U.S.C. § 1973l(e) (providing that the court “may allow the

prevailing party, other than the United States, a reasonable attorney’s fee”).

Indeed, the Department of Justice does not deny that its own filings and

statements in this case referred to the United States as the defendant until

acknowledging that basic fact became inconvenient to the Department’s

efforts to block discovery. See Memorandum in Support of Motion to Compel

(Doc. 130-1) at 9–10.

The only role prescribed for the Attorney General by Section 5 is

administrative preclearance review. See 42 U.S.C. § 1973c (providing for

administrative review by the Attorney General as an alternative to a

declaratory judgment action). By seeking administrative preclearance, Texas

sought the only remedy that the Attorney General can provide. The Attorney

General’s refusal to provide relief is not reviewable in this Court. See, e.g.,

Morris v. Gressette, 432 U.S. 491, 504–05 (1977); County Council v. United

States, 555 F. Supp. 694, 706 (D.D.C. 1983) (three-judge court) (“[T]his

Court’s role under Section 5 of the Act is to examine the change de novo as an

alternative to the Attorney General’s decision regarding preclearance.”).

Having failed to secure administrative relief from the Attorney

General, Texas seeks a declaratory judgment that its law does not violate


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Section 5 of the Voting Rights Act. This declaratory judgment action does not

seek a remedy from the Attorney General or the Department of Justice; it

seeks a judgment from this Court. That judgment will not operate only

against the Attorney General or the Department of Justice. It will bind the

entire United States government.

B. Texas Does Not Contend that Federal Agencies Are Parties to

this Litigation; It Contends that the United States Is a Party.

The United States urges the Court to reject the “unprecedented

argument that every agency of the executive branch is a party to any lawsuit

against the Attorney General.” Response at 6. The United States

misunderstands and misrepresents the State’s position. Texas does not

contend “that the Attorney General is acting in this litigation as an agent of

any federal agency other than the Department of Justice,” or that a

declaratory judgment will “operate against” any specific federal agency. Id.

Nor does Texas contend that any specific federal agency is a party to this

litigation. The Attorney General is sued as an agent of the United States, not

the Department of Justice, and not any specific executive branch agency. A

declaratory judgment for the State of Texas will operate against the United

States. The United States is a party to this litigation.

Because this litigation is conducted on behalf of the United States,

there is no basis for the Department of Justice’s insistence that Texas serve

discovery subpoenas on executive branch agencies. Subpoenas are not

necessary. The Department of Justice has the authority to obtain the


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requested information without the procedures outlined in each agency’s

Touhy regulations, as the Touhy regulations themselves indicate. See, e.g.,

20 C.F.R. § 403.115(b)(3) (“This part does not apply to requests for testimony

[by the Social Security Administration] . . . [f]rom the United States

Department of Justice.”); 22 C.F.R. § 172.1(h) (“Nothing in this part affects

the disclosure of official information [by the State Department] to other

federal agencies or Department of Justice attorneys in connection with

litigation conducted on behalf or in defense of the United States . . . .”); 32

C.F.R. § 97.2(b)(3) (“This directive does not apply to the release of official

information or testimony by DoD personnel . . . [i]n response to requests by

Federal Government counsel in litigation conducted on behalf of the United

States.”); 38 C.F.R. § 14.801(b)(2)(i) (“Sections 14.800 through 14.810 do not

apply to . . . [l]egal proceedings in which the Department of Veterans Affairs,

the Secretary of Veterans Affairs or the United States is a party, is

represented or has a direct and substantial interest.”). The United States’

insistence that Texas comply with these regulations is unwarranted and

appears calculated to maximize the burden on the State of Texas, create the

appearance of complexity where none exists, and delay the production of

admittedly relevant information from federal agencies. The only obstacle to

the efficient production of the information sought by Texas is the Department

of Justice’s failure to request it.

C. Texas’s Requests for Information on Disability Status Are

Neither Overbroad Nor Irrelevant.


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The United States alleges that requests to produce information on

Texans with a qualifying disability from the Social Security Administration

or the Department of Veterans Affairs is “overbroad and irrelevant, because

disability status is only applicable to S.B. 14’s disability exemption if the

voter also lacks all allowable identification documents.” Response at 14. The

State’s requests are neither overbroad nor irrelevant. SB 14’s photographic

identification requirement will not impact individuals with a qualifying

disability because lack of identification will not prevent them from voting

(even if they choose not to vote by mail). These objections are unfounded and

do not justify the United States’ failure to provide responsive data and

documents.

D. Potential Inaccuracies in Passport Data Do Not Justify the

United States’ Failure to Respond to Discovery Requests.

The United States admits that there exist records showing the mailing

address of every person who holds a United States passport. It argues,

however, that it should be excused from providing these records because the

addresses may not be actual residence addresses and may be out of date. See

Response at 13–14. The fact that data may not be perfectly reliable does not

justify the United States’ complete failure to produce it. Indeed, Texas’s

warning that data from different State databases was not meant to interact

and was therefore potentially unreliable did not prevent the United States

from demanding its production.


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Furthermore, every passport application requires the applicant to give

a full social security number. See Form DS-11 Passport Application (Exh. 1)

at 1, item 5 (“social security number”). The passport database discovery

Texas seeks could therefore allow it to match passport holders to Texas

registered voters. Despite the obvious potential of this data, the United

States responds as though the only permissible identification under SB14

were State-issued identification. This is not the case, and the United States

has no basis to prevent discovery of Texans who hold federally issued

identification that satisfies SB 14.

E. There Is No Basis to Fault Texas for the Manner in Which It

Has Pursued Discovery.

The United States criticizes Texas for its alleged delay in moving to

compel and for its failure to serve discovery subpoenas on federal agencies.

Neither criticism has any foundation. Texas waited to file a motion to compel

because the Court ordered the parties not to file discovery motions until they

had conferred with the court. See Initial Scheduling Order (Doc. 43) ¶ 12.

When Texas brought the federal databases to the Court’s attention, the Court

instructed Texas to refrain from taking further steps and allow the United

States to provide further information. See, e.g., Transcript (April 30, 2012) at

30:7–17. After the United States began to provide further information, the

Court issued a series of orders that directed the United States to provide

periodic updates on its inquiries into the relevant agency databases. Given

the Court’s initial request that the parties avoid formal discovery motions


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and the subsequent orders directing the United States to file progress

reports, Texas justifiably sought to follow the Court’s instructions and

complied by not filing a motion to compel. In any event, when the State was

left with no choice but to file a motion to compel, it did so well within the

discovery period. Absent the United States’ apparent determination to delay

or circumvent the State’s discovery requests, the United States could have

easily produced the requested information in time to be used at trial.

With respect to the complaint that Texas did not serve discovery

subpoenas, the Department of Justice comes to the Court with unclean

hands. Indeed, beginning in late March, Texas advised the Department of

Justice that it must serve subpoenas on non-party Texas agencies and

officials to secure documents and deposition testimony. Later, in a good-faith

effort to help ensure that the trial could proceed as scheduled on July 9,

relevant state agencies and officers—including legislators not in the

executive branch—were prevailed upon to submit to discovery without

requiring a subpoena. As a result, the United States has not served a single

discovery subpoena, either before or after Texas officials agreed to comply

voluntarily with discovery requests. In contrast to the actions of Texas

agencies and officials, the Department of Justice has not taken any steps to

comply with discovery requests that it contends must be made in compliance

with Rule 45. Although Texas’s initial insistence on formal compliance with

the Federal Rules subsequently gave way to informal compliance with


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discovery requests, the United States criticized the State’s initial position as

causing unnecessary delay. The United States’ continued insistence on strict

adherence to the rules necessarily constitutes unnecessary delay by its own

standards, particularly when its position is based on an unfounded and

immaterial distinction between the Attorney General and the United States.

CONCLUSION

For the reasons stated above and in the State’s motion and

memorandum in support, the Motion to Compel should be granted.


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Dated: May 29, 2012

Respectfully submitted.

GREG ABBOTT

Attorney General of Texas

DANIEL T. HODGE

First Assistant Attorney General

JONATHAN F. MITCHELL

Solicitor General

/s/ Patrick K. Sweeten

PATRICK K. SWEETEN

Assistant Attorney General

ADAM W. ASTON

Principal Deputy Solicitor General

ARTHUR C. D’ANDREA

Assistant Solicitor General

MATTHEW H. FREDERICK


209 West 14th Street

P.O. Box 12548

Austin, Texas 70711-2548

(512) 936-1695

COUNSEL FOR THE STATE OF

TEXAS


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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document

is being served by CM/ECF and/or electronic mail on May 29, 2012 on the

following:

Elizabeth Stewart Westfall

Jennifer Lynn Maranzano

Daniel J. Freeman

Bruce I. Gear

Meredith E.B. Bell-Platts

U.S. DEPARTMENT OF JUSTICE

Civil Rights Division, Voting Section

950 Pennsylvania Avenue, NW

NWB-Room 7202

Washington, DC 20530

(202) 305-7766/Fax: (202) 307-3961

Email: [email protected]





Counsel for the United States

Chad W. Dunn

BRAZIL & DUNN

4201 FM 1960 West, Suite 530

Houston, TX 77068

(281) 580-6310


J. Gerald Hebert

Attorney at Law

191 Somerville Street, #405

Alexandria, VA 22304

Telephone: 703-628-4673

[email protected]

Counsel for Eric Kennie, Anna Burns, Michael Montez, Penny Pope, Marc

Veasey, Jane Hamilton, David De La Fuente, Lorraine Birabil, Daniel

Clayton, and Sergio Deleon


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Ezra D. Rosenberg

Michelle Hart Yeary

DECHERT LLP

902 Carnegie Center, Suite 500

Princeton, NJ 08540

(609) 955-3200/Fax: (609) 955-3259



Jon M. Greenbaum

Mark A. Posner

Robert A. Kengle

LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW

1401 New York Avenue, NW, Suite 400


(202) 662-8325




Myrna Perez

Ian Arthur Vandewalker

Wendy Robin Weiser

THE BRENNAN CENTER FOR JUSTICE AT NYU LAW SCHOOL

161 Avenue of the Americas, Floor 12

New York, NY 10013-1205

(646) 292-8329/Fax: (212)463-7308




Robert Stephen Notzon

1507 Nueces Street

Austin, TX 78701-1501

(512) 474-7563

Fax: (512) 852-4788


Victor L. Goode

NAACP National Headquarters

4805 Mt. Hope Dr.

Baltimore, Maryland 21215-3297

(410) 580-5120



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Jose Garza

Law Office of Jose Garza

7414 Robin Rest Dr.

San Antonio, Texas 98209

(210) 392-2856 (phone)


Gary L Bledsoe

Law Office of Gary L. Bledsoe and Associates

316 West 12th Street, Suite 307

Austin, Texas 78701

(512) 322-9992


Counsel for Texas State Conference of NAACP Branches, Mexican American

Legislative Caucus of the Texas House of Representatives

Douglas H. Flaum

Michael B. de Leeuw

Adam Harris

FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP

One New York Plaza

New York, New York 10004-1980

(212) 859-8000




Ryan Haygood

Natasha M. Korgaonkar

Leah C. Aden

Dale E. Ho

Debo P. Adegbile

Elise C. Boddie

NAACP Legal Defense and Educational Fund, Inc.

99 Hudson Street, Suite 1600

New York, New York 10013

(212) 965-2200

(212) 226-7592








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Counsel for Texas League of Young Voters Education Fund, Imani Clark,

KiEssence Culbreath, Demariano Hill, Felicia Johnson, Dominique Monday,

and Brianna Williams

John Kent Tanner

3743 Military Road, NW


(202) 503-7696


Nancy Abudu

Katie O’Connor

Laughlin McDonald

AMERICAN CIVIL LIBERTIES UNION FOUNDATION INC

230 Peachtree Street NW, Suite 1440

Atlanta, GA 30303

(404) 523-2721




Arthur B. Spitzer

American Civil Liberties Union of the Nation’s Capital

4301 Connecticut Avenue, N.W., Suite 434

Washington, D.C. 20008

(202) 457-0800


Lisa Graybill

Rebecca Robertson

American Civil Liberties Union Foundation of Texas

1500 McGowan Street

Houston, Texas 77004

(713) 942-8146




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Penda Hair

Kumiki Gibson

Advancement Project

1220 L Street, NW, Suite 850


(202) 728-9557



Counsel for Justice Seekers, League of Women Voters of Texas, Texas

Legislature Black Caucus, Donald Wright, Peter Johnson, Ronald Wright,

Southwest Workers Union and La Union Del Pueblo Entero

Nina Perales

Amy Pedersen

MEXICAN AMERICAN LEGAL DEFENSE & EDUCATIONAL FUND, INC.

110 Broadway, Suite 300

San Antonio, TX 78205

(210) 224-5476



Counsel for Mi Familia Vota Education Fund, Southwest Voter Registration

Education Project, Nicole Rodriguez, Victoria Rodriguez

/s/ Patrick K. Sweeten

PATRICK K. SWEETEN



Case 1:12-cv-00128-RMC-DST-RLW Document 159-1 Filed 05/29/12 Page 1 of 6

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