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FREDRIC D. WOOCHER (SBN 96689)
STRUMWASSER & WOOCHER LLP F l L E D .
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N l0940 Wilshire Boulevard. Suite 2000 SUPERlOR COURTOlCALlFORNIA F
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Los Angelcs, California 90024 COUNTY OF SANTA BARBARA
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u Telephone: (310) 576-1233 fiDX ‘___
Facsimile: (310)319-0l56 MAR V1 6 2009 -
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GARY M. BLAIR.EXEC.OFFICER
PHILIP A. SEYMOUR (SBN I 16606) CA _—
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4894 Ogram Road
Santa Barbara, California 93l05
By
Ru“. BASS’FDU‘YCIWK Fl“ __
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Telephone: (805) 692-9335
Facsimile: (805) 964-1907
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Attorneys {or Defendant Doreen Farr ATT __ ‘
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SUPERIOR COURT OF THE STATE OF CALIFORNIA ——
FOR THE COUNTY OF SANTA BARBARA
STEVEN PAPPAS, Case No. 1304851
Contestant.
V.
DOREEN FARR,
Date: March 16. 2009
Time: 2:30 pm.
Defendant. Dept.: 5
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Contest Filed: December 3l, 2008
ASSIGNED TO THE HONORABLE
WILLIAM MCLAFFERTY
PRINTED ON RECYCLED PAPER
00292
DEFENDANT DOREEN FARR'S RENEWED MOTIONTO DISMISS AND BRIEF
ON HAVA ISSUES
TABLE OF CONTENTS
INTRODUCTION ............................................................ 1
NEITHER HAVA NOR CALIFORNIA LAW REQUIRES THE COUNTY
REGISTRAR TO CONDUCT ANY FURTHER “OUTREACH" ON NEW
REGISTRANTS WHOSE IDENTIFICATION HAS BEEN VERIFIED THROUGH
THE CALVALIDATOR SYSTEM BEFORE THEY ARE PERMITTED TO VOTE
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THE REGISTRATION AND ELECTION PROCESS ......................... '.
3
A. HAVA‘S REGISTRATION AND FIRST-TIME FEDERAL VOTER
IDENTIFICATION REQUIREMENTS ...................................... 3
B. CALIFORNIA‘S IMPLEMENTATION HAVA .............................
OF 6
II. THE SANTA BARBARA COUNTY REGISTRAR OF VOTERS FULLY
COMPLIED WITH HAVA AND ALL STATE REQUIREMENTS FOR THIS
O ELECTION....................... .................................... 12
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III. CONTESTANT PAPPAS’ CLAIMED VIOLATION OF HAVA DOES NOT IN
ANY EVENT PROVIDE GROUNDS FOR THE EXTRAORDINARY RELIEF HE
N SEEKS IN THIS ELECTION CONTEST ................................... 16
U A. HAVA’S REQUIREMENTS ONLY APPLY To ELECTIONS FOR FEDERAL
OFFICE, NOT To THE THIRD DISTRICT COUNTY SUPERVISORIAL
4} ELECTION ...................................................... ‘
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B. THERE IS No PRIVATE RIGHT ACTION UNDER HAVA ..................
OF 18,
0‘ C. THERE ARE AN INSUFFICIENTNUMEER 0F VOTES AFFECTED BY CONTESTANT’S
HAVA CLAIMS To CHANGE THE OUTCOME OF THE THIRD DISTRICT
\l SUPERVISORIAL ELECTION ......................................... 21
D. VIOLA'HON 0F HAVA’S REGISTRATION AND IDENTIFICATION
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REQUIREMENTS DO NOT CONSTITUTE PERMISSIBLE GROUNDS FOR
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DISQUALIFYING THE VOTES CAST BY OTHERWISE ELIGIBLE VOTERS 22
O CONCLUSION ...... 23
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00293
DEFENDANT DOREEN FARR'S RENEWED MOTION TO DISMISS AND BRIEF ON HAVA ISSUES
INTRODUCTION
From the beginning, Contestant Steve Pappas‘ contest seeking to overturn Defendant Doreen
Farr‘s 806-vote victory in the November 4, 2008, Third District Supervisorial election has been “a
tale . . .of sound and fury, signifying nothing.” (Wm. Shakespeare, Macbeth, act. V, scene 5.)l In
his First Amended Verified Petition and Statement of Contest, Pappas alleged that massive
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“fraudulent voting" had occurred in the 18 UCSB and Isla Vista precincts that he has targeted in
this contest (First Amended Verified Petition, Ti 15), and that “[v]irtua11y every process and
procedure for registering voters through registration drives, voting by mail, voting at precincts,
checking identification of first time voters, and provisional voting in the County of Santa Barbara
(i) was subject to manipulation, (ii) actually being manipulated, and/or (iii) not being safeguarded
by the Santa Barbara County Registrar of Voters (‘Registrar') in the manner required under and by
state and federal law“ (id, ‘E 13).
In Contestant’s Trial Brief, Pappas reiterated these allegations, asserting that “massive
irregularities” in pre-election registration drives conducted on the UCSB campus had resulted in
thousands of ineligible voters registering to vote, and accusing Registrar Joe Holland and his staff
of verifying “only a small fraction" of the new registrations through the CalValidator system.‘
(Contestant‘s Trial Brief, pp. 1, 4.) Contestant also claimed that he would prove at trial that “newly
registered voters failed to disclose their complete residential address” on their affidavits of
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registration, that “voters were ineligible due to lack of US. citizenship,“ that “signatures on vote
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by mail envelopes and provisional envelopes did not match signatures on the corresponding
registration cards,” and that “registration applications were not submitted by the deadline" mandated
by the Elections Code. (Id, pp. 13, 15, 16.)
In his opening statement, Contestant Pappas’ counsel, Jeffrey Lake, repeated these
accusations and concluded by setting forth both the theory of his case and what the evidence at trial
would supposedly prove:
“This is the most important fact in the case. That these thousands offirst time
new voters were never, never once sent through the CalValidator system to be
'Out of deference to Contestant Pappas and his counsel, Defendant has omitted the phrase
from Shakespeare’s original language, as indicated by the ellipses, “told by an idiot.“
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DEFENDANT DOREEN FARR‘S RENEWED MOTION TO DISMISS AND BRIEF 0N HAVA ISSUES
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validated as eligible voters. These people never had their names. their lds, their ages,
their citizenships, their addresses. nothing checked by the CalValidator system. Yet
these thousands of voters, and we have identified them, voted. and they voted in this
election.
“As a result of this mistake, voters who were registered twice, voters who
didn't even know they were registered, voters who had different signatures form the
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person on the application . . . and incomplete information, were not validated and
they voted." (Trial Transcript, Feb. 17, 2009, pp. 16-l7 [emphasis added].)
And here we now are, more than four months after the election and four weeks into the trial,
having heard four full days of testimony and having received tens of thousands of pages of
documents and dozens of matrices and spreadsheets, and Contestant Pappas has yet to produce
evidence of a single fraudulent or illegal vote. Indeed, Contestant has still not delivered to
O Defendant Farr a meaningful List of Illegal Votes that he even intends to prove at trial, as required
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by Elections Code section 16402. Moreover, it is now undisputed that the “most important fact in
the case" according to Pappas’ attorneys — that “thousands of first time new voters were never.
w never once sent through the CalValidator system to be validated as eligible voters“ -—, is simply not
b true, and that Pappas could have known this months ago if he had only bothered to ask the
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Registrar how the CalValidator process works and what information was contained on the “DI."
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and “CL“ files that the Registrar had provided to him.
\I Faced with the uncontrovened evidence that the “most important fact“ in his case has been
00 proven to be incorrect. Contestant Pappas has now changed his whole argument regarding what
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\D HAVA requires. As best as Defendant is able to understand it. Pappas no longer contends that the
O Registrar failed to submit the names of thousands of newly registered voters to CalValidator for
r— verification. Instead. Pappas apparently now argues that even after submitting the names of newly
M registered voters through the CalValidator system and receiving the results of Calvalidator’s
w verification in the CL reports, the Santa Barbara County Registrar was required, but failed, to
A conduct some further outreach in order to “validate" the identity and eligibility of those registrants
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whose names appeared on the CalValidator Failed Records Report. and that these registrants’ names
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were not allowed to be submitted to CalVoter (the statewide registration database), nor should they
\l have been permitted to vote a regular ballot in any federal election. unless and until this "outreach"
00 resulted in some unspecified manner in the “validation" of their identity and eligibility. Defendant
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DEFENDANT DOREEN FARR'S RENEWED MO’HON T0 DISMISS AND BRIEF ON HAVA ISSUES
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Farr understandsthat Pappas’ .counsel hasconceded that if this legal theory is not accepted by the
Court, he cannot prevail in this election contest, and that there would thus be no need for any further
testimony in this case.
In the following sections, Defendant Fan- demonstrates that Pappas‘ latest claim regarding
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the County Registrar’s alleged non-compliance with HAVA is unsupported by both the law and the
facts. Defendant begins by laying out the pertinent legal framework, both under HAVA and under
the Secretary of State’s regulations implementing HAVA‘s requirements in California. Defendant
also includes therein the Secretary of State's specific responses to Contestant Pappas‘ inquiries on
Ihis precise issue. in which she explained that Contestant‘s view of the law and of the Registrar‘s
supposed obligations under HAVA was incorrect. Defendant then demonstrates that the Santa
Barbara County Registrar‘s office has in fact dutifully complied with all of its obligations under
HAVA and Califomia’s implementing regulations. Finally, Defendant shows that even if
Contestant‘s most recent legal theory regarding HAVA‘s requirements were correct, it would still
be of no assistance to him in this election contest because (I) HAVA‘s identification requirements
for first-time voters do not apply to, and therefore provide no legal basis for challenging. this non-
federal County Supervisor‘s election; (2) there is no private right of action to enforce HAVA's
requirements in any‘state or federal civil lawsuit, including in this election contest; (3) there are an
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insufficient number of votes affected by this HAVA issue. even under Contestant’s most favorable
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assertions, to change the outcome of the Third District Supervisorial election; and (4) a violation
of HAVA’s registration and identification requirements would not in any event constitute lawful
grounds for disqualifying the vote cast by any otherwise eligible voter.
NEITHER HAVA NOR CALIFORNIA LAW REQUIRES THE COUNTY
REGISTRAR TO CONDUCT ANY FURTHER “OUTREACH” ON NEW
REGISTRANTS WHOSE IDENTlFICATION HAS BEEN VERIFIED THROUGH
THE CALVALIDATOR SYSTEM BEFORE THEY ARE PERMITTED TO VOTE
A. HAVA’s REGISTRATION AND FIRST-TIME FEDERAL VOTER
IDEN'HFICATION REQUIREMENTS
Section 303 of the Help America Vote Act of 2002 (“HAVA”). 42 U.S.C. § 15483. contains
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DEFENDANT DOREEN FARR'S RENEWED MOTION TO DISMISS AND BRIEF ON HAVA ISSUES
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two different provisions that are pertinent to this case.2 Subdivision (a)(l) of section 303 requires
“each State, acting through the chief State election official," to establish and implement “a single,
uniform, official, centralized, interactive computerized statewide voter registration list . . . that
contains the name and registration information of every legally registered voter in the State and
assigns a unique identifier to each legally registered voter in the State." (42 U.S.C.
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§ lS483(a)(l)(A).) In order to assist in the compilation of this statewide registration list and the
assignment of a unique identifier to each voter, subdivision (a)(5) of section 303 provides that voter
registration applications must include either the applicant‘s driver’s license number or, if the
applicant does not have a current and valid driver's license, the last 4 digits of his or her social
security number; if an applicant has neither a current and valid driver‘s license nor a social security
number, “the State shall assign the applicant a number which will serve to identify the applicant for
voter registration purposes." (42 U.S.C. § 15483(a)(5)(A).) In addition, subdivision (a)(5) of
section 303 mandates that “[t]he chief State election official and the official responsible for the
State motor vehicle authority of a State shall enter into an agreement to match information in the
database of the statewide voter registration system with information in the database of the motor
vehicle authority to the extent required to enable each such official to verify the accuracy of the
information provided on the applications for voter registration.” (42 U.S.C. § l5483(a)(5)(B)(i).)1
Separate and apart from the requirements set forth in section 303, subdivision (0), regarding
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the State’s obligation to establish and maintain a statewide voter registration database,
subdivision (b) of section 303 imposes certain requirements on individuals who have registered by
mail and who are voting for the first time in a federal election to show identification in order to cast
1For the Court’s convenience, the full texts of the pertinent sections of HAVA are included
in Defendant‘s Appendix of Authorities submitted in conjunction with this brief.
JAs Senator Dodd, the chief sponsor of HAVA in the Senate. explained. “nothing in this
section prohibits a State from accepting or processing an application with incomplete or inaccurate
if
information. . . . So, for example, a voter transposes his or her Social Security number. or provides
less than a full driver’s license number, the State can nonetheless determine that such information
is sufficient to meet the verification requirements, in accordance with State law“ (148 Cong. Rec.
Sl0488-02, Sl0505 (daily cd. Oct. 16. 2002).)
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DEFENDANT DOREEN FARR'S RENEWED MOTlON TO DISMISS AND BRIEF 0N HAVA ISSUES
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a regular ballot.‘ Stated briefly, these “first-time federal voters“ who have registered by mail must
present one of several forms of acceptable identification when voting at the polls or must submit
such identification along with their absentee ballot if voting by mail.5 (42 U.S.C. § 15483(b)(l) &
(b)(2)(A).) If these individuals refuse or are unable to present any identification, they are not
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permitted to cast a regular ballot, but they are entitled to cast a provisional ballot, which will be
counted “in accordance with State law.“ (See 42 U.S.C. §§ 15483(b)(2)(B)& 15482(a)(4).)
While section 303, subdivision (b), would therefore appear at first glance to require all
persons who registered by mail to present identification at the time they vote for the first time in a
federal election, that very same subsection of HAVA contains a huge exception that nearly
swallows its rule -—- at least in states like California that have implemented subdivision (a)’s
provisions governing the establishment of a statewide registration database: Pursuant to
subdivision (b)(3) of section 303, the requirement to submit identification when voting for the first
time in a federal election is expressly inapplicable to those individuals “with respect to whom a
State or local election official matches the [driver’s license number or last 4 digits of the
individual’s social security number] with an existing State identification record bearing the same
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number, name and date of birth as provided in such registration." (42 U.S.C. § lS483(b)(3)(B).)
Thus, the only voters who actually are obliged to provide identification under HAVA at the time
they vote (either at the polls or with the return of their vote-by-mail ballot) are those first-time
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federal voters who registered by mail and whose driver’s license number or last 4 digits of their
‘As noted in the testimony at trial, the “registered to vote by mail" classification applies only
to those registration affidavits that bear a US. Postal Service postmark. (See Secretary of State's
HAVA Compliance Manual [Exh. 37], chap. 7, p. 1.) Therefore, if the registration affidavit was
delivered to the Registrar by a third party — as apparently occurred with most of the registration
forms at issue in this case — HAVA‘s voter identification requirements do not apply at all.
Similarly, HAVA’s requirements only apply to voters who are voting in a federal election for the
first time, so they do not apply to voters who re-registered because they changed their address or
other registration information afler having previously voted in any other federal election, including
the Presidential preference primary held in February 2008.
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’The acceptable forms of identification in California are set forth in 2 Cal. Code of Regs.
§ 20107 and include such documents as the voter’s driver‘s license, passport, student identification
card, or even a utility bill, bank statement, or other document showing the individual‘s name and
address.
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DEFENDANT DOREEN FARR‘S RENEWED MOTlON TO DISMISS AND BRIEF ON HAVA ISSUES (‘0 9L3
social security number were unable to be “matehe[d]" with a state identification record bearing the
same number, name and date of birth.“ ,
Notably, and consistent with the Tenth Amendment's reservation of undelegated powers and
rights to the States, HAVA leaves the precise manner of implementing its provisions to the
individual States. Section 5.05 of HAVA expressly declares that “[t]he specific choices on the
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methods of complying with the requirements of this subchapter shall be left to the discretion of the
State." (42 U.S.C. § 15485.) Likewise, in setting forth the requirement that a State shall establish
a system for assigning and verifying a unique identification number for each registered voter,
section 303, subdivision (a) of HAVA admonishes that “[!]he State shall determine whether the
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O information provided by an individual is sufficient to meet the requirements of this subparagraph.
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in accordance with state law.“ (42 U.S.C. § 15483(a)(5)(A)(iii) [emphasis added].) And, as stated
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N above, HAVA similarly requires that the determination of whether a provisional ballot shall be
—- 5’ counted as a vote shall be made “in accordance with state law
“ (42 U. S C. 15482(a)(4).)
§
e... Jk Accordingly, while HAVA lays out the general framework and requirements governing the
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registration and identification requirements for voters in federal elections, it is California state law
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that actually provides the details of HAVA’s implementation for elections in this state.
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\l B. CALIFORNIA’S IMPLEMENTATION or HAVA
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00 With the approval of the United States Justice Department, California has implemented
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\O HAVA by creating the “Calvoter” statewide computerized registration database and the
NO “Calvalidator” system for verifying registration applicants' driver's licenses, social security
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numbers, and other identifying information. In addition, the California Secretary of State — the‘
NN state’s chief elections ofiicial, who is charged by HAVA with the obligation to establish the
Nw computerized statewide registration list — has promulgated a series of regulations that “apply to
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“It bears emphasizing, as the District Court held in Washington Assn. of Churches v. Reed
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(W.D. Wash. 2006) 492 F.Supp.2d I264, 1269, that “HAVA requires matching for the purpose of
verifying the identity of the voter before casting or counting that person's vote, but not as a
N 0‘ prerequisite to registering to vote." The District Court in Reed therefore granted a preliminary
injunction enjoining the Washington Secretary of State from enforcing a state statute that essentially
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required the state to match a potential voter’s name to either the Social Security Administration's
database or the state motor vehicle department’s database before allowing that person to register to
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vote, finding that the state law was inconsistent with HAVA’s scheme and Congressional intent.
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DEFENDANT DOREEN FARR' S RENEWED MOTION TO DlSMlSS AND BRIEF ON HAVA ISSUES
00299
the Secretary of State and all elections officials within the State of California in processing,
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transmitting, and maintaining voter registration records in this state," and that "establish standards
and procedures for processing, transmitting, and maintaining voter registration records in a manner
that conforms with the statewide voter registration list requirements set forth in the Help America
Vote Act of 2002." (2 Cal.Code Regs. § 20108.)
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Generally speaking, as confirmed by the Registrar‘s staff who have testified in the trial to
date, the Secretary of State’s regulations provide that when a County Registrar receives a new
W registration form, the data on the form are input into the local Election Management [and
Information] System (“EMS" or “EIMS”), and a new registrant’s driver’s license or social security
10 information is then verified by having the County Registrar submit the numbers provided by the
11 applicant to the State through the CalValidator system. The CalValidator system then sends back
12 a batch file to the County Registrar (at least in the case of a county, like Santa Barbara, whose EIMS
13 has the capacity to process such batch files) indicating whether the voter's information was
14 “verified" with the information contained in the state’s DMV or the SSA‘s social security databases.
15 1f the voter‘s information was successfully verified, the voter is then officially registered and
16 entered into the registration database through the Calvoter system. If CalValidator repons that the
17 registrant’s driver’s license or social security information could not be verified for some reason,
1s then the voter is still entered into the Calvoter system. but the County Registrar is directed to
19 contact the applicant to obtain identifying information, if it is available. If the applicant did not _
20 provide a driver’s license or social security number on his or her registration form, but Calvalidalor
21 is able to find and match such a number to the registrant using the existing state databases, the
22 Registrar will enter the number found through Calvalidator on the voter’s registration record. And
23 if the voter submits no driver’s license or social security number, and Calvalidator cannot locate
24 one, the state will assign a unique number to the applicant that will serve to identify the voter for
25 registration purposes. In addition, the registration records of those persons who did not supply a
26 driver’s license or social security number that could be verified by Calvalidator are “flagged" by
27 the County Registrar, and if they are first-time federal voters who registered by mail, these persons
28 are required to present identification before they are allowed to vote a regular ballot at the polls or
,
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DEFENDANT DOREEN FARR'S RENEWED MOTION TO DISMISS AND BRIEF 0N HAVA ISSUES
1:03 Ul
before their vote-by-mail ballots will be counted. (See generally 2 Cal. Code Regs. § 20108 et seq.)
There are three specific sections of the regulations issued by the Secretary of State that are
particularly pertinent to the latest claims made by Contestant Pappas in this case: Sections
20108.38, 20108.65, and 20108.70.7 Section 20108.38 sets forth the conditions under which a
registrant “shall be exempt from providing further proof of identity under HAVA for the purpose
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of voting.” (2 Cal. Code Regs. §20108.38(b).) Those conditions include the circumstance in which
the applicant “provided satisfactory proof of identity with the voter registration application or
otherwise provided satisfactory proof of identity prior to voting in a Federal election” (id.,
subd. (a)(i)), as well as when the “California driver’s license or state identification number or the
last four digits of the social security number provided was verified with Calvalidator or the
Department of Motor Vehicles“ (id, subd. (a)(ii)). Section 20108.38 also makes clear that even
when the registrant’s driver’s license or social security number was notable to be verified through
CalValidator, but the registrant was determined to be otherwise eligible to vote, the local elections
official “shall submit the record to Calvoter . . . and that record shall indicate that proof of identity
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must be provided the first time the voter votes in a Federal election.“ (1d, subd. (c).) In other
words, even those registrants whose driver’s license or social security numbers were not verified
by CalValidator as a “MATCH" are nevertheless still immediately entered into Calvoter‘ s statewide
registration database of active voters, and they are entitled to vote in a federal election as long as
they are othenzvise eligible to vote, although they must either produce identification at that time or
“\IO‘MABNHOOOOQO‘VIw—‘O
cast a provisional ballot.a
Regulation 20108.65 specifically addresses the CalValidator verification process for those
registrants who have provided a driver‘s license or social security number on their application.
For the Court’s convenience, copies of the text of these sections are included in Defendant’s
Appendix of Authorities, as well.
”The Secretary of State‘s regulations provide that the “substantive information required to
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determine eligibility to vote means the facts necessary to determine eligibility to vote, including the
registrant’s name, whether the registrant is a citizen of the United States, place of residence and if
the registrant does not possess a residence address at which mail can be received, his or her mailing
address, date of birth, state or country of birth and a statement that the registrant is not currently
imprisoned or on parole for the conviction of a felony." (2 Cal. Code Regs. § 20108.25(a).)
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DEFENDANT DOREEN FARR'S RENEWED MOTION TO D1$MISS AND BRIEF ON HAVA lSSUES
00301
Subdivision (c) requires that all new voter registration records must be run through CalValidator
before being entered into the statewide database: “Prior to submitting a new voter registration _
record in a registration update file or full load file to Calvotcr. . . , the elections official shall verify
that the California driver’s license or state identification number or social security number provided .
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by a registrant in an affidavitof registration was issued to the individual named‘therein by verifyin
Preview
—- FREDRIC D. WOOCHER (SBN 96689) STRUMWASSER & WOOCHER LLP F l L E D . l7", —— N l0940 Wilshire Boulevard. Suite 2000 SUPERlOR COURTOlCALlFORNIA F ’ . Los Angelcs, California 90024 COUNTY OF SANTA BARBARA ‘ u Telephone: (310) 576-1233 fiDX ‘___ Facsimile: (310)319-0l56 MAR V1 6 2009 - . v J§ GARY M. BLAIR.EXEC.OFFICER PHILIP A. SEYMOUR (SBN I 16606) CA _— kl! 4894 Ogram Road Santa Barbara, California 93l05 By Ru“. BASS’FDU‘YCIWK Fl“ __ \I-O\ Telephone: (805) 692-9335 Facsimile: (805) 964-1907 V J ‘— 00 Attorneys {or Defendant Doreen Farr ATT __ ‘ COD NO ST SUPERIOR COURT OF THE STATE OF CALIFORNIA —— FOR THE COUNTY OF SANTA BARBARA STEVEN PAPPAS, Case No. 1304851 Contestant. V. DOREEN FARR, Date: March 16. 2009 Time: 2:30 pm. Defendant. Dept.: 5 NNNNNNNNNa——n—n——n——_— ooqovuuwN—oxoooxio‘uauwt—o ‘ Contest Filed: December 3l, 2008 ASSIGNED TO THE HONORABLE WILLIAM MCLAFFERTY PRINTED ON RECYCLED PAPER 00292 DEFENDANT DOREEN FARR'S RENEWED MOTIONTO DISMISS AND BRIEF ON HAVA ISSUES TABLE OF CONTENTS INTRODUCTION ............................................................ 1 NEITHER HAVA NOR CALIFORNIA LAW REQUIRES THE COUNTY REGISTRAR TO CONDUCT ANY FURTHER “OUTREACH" ON NEW REGISTRANTS WHOSE IDENTIFICATION HAS BEEN VERIFIED THROUGH THE CALVALIDATOR SYSTEM BEFORE THEY ARE PERMITTED TO VOTE \DOOQO‘VIAWN—o . THE REGISTRATION AND ELECTION PROCESS ......................... '. 3 A. HAVA‘S REGISTRATION AND FIRST-TIME FEDERAL VOTER IDENTIFICATION REQUIREMENTS ...................................... 3 B. CALIFORNIA‘S IMPLEMENTATION HAVA ............................. OF 6 II. THE SANTA BARBARA COUNTY REGISTRAR OF VOTERS FULLY COMPLIED WITH HAVA AND ALL STATE REQUIREMENTS FOR THIS O ELECTION....................... .................................... 12 —- III. CONTESTANT PAPPAS’ CLAIMED VIOLATION OF HAVA DOES NOT IN ANY EVENT PROVIDE GROUNDS FOR THE EXTRAORDINARY RELIEF HE N SEEKS IN THIS ELECTION CONTEST ................................... 16 U A. HAVA’S REQUIREMENTS ONLY APPLY To ELECTIONS FOR FEDERAL OFFICE, NOT To THE THIRD DISTRICT COUNTY SUPERVISORIAL 4} ELECTION ...................................................... ‘ 16 LI- B. THERE IS No PRIVATE RIGHT ACTION UNDER HAVA .................. OF 18, 0‘ C. THERE ARE AN INSUFFICIENTNUMEER 0F VOTES AFFECTED BY CONTESTANT’S HAVA CLAIMS To CHANGE THE OUTCOME OF THE THIRD DISTRICT \l SUPERVISORIAL ELECTION ......................................... 21 D. VIOLA'HON 0F HAVA’S REGISTRATION AND IDENTIFICATION \O‘OO REQUIREMENTS DO NOT CONSTITUTE PERMISSIBLE GROUNDS FOR ........ NMNNNNNNN—u———.——u——— DISQUALIFYING THE VOTES CAST BY OTHERWISE ELIGIBLE VOTERS 22 O CONCLUSION ...... 23 —- N U ¢~ Ur O\ \l N i 00293 DEFENDANT DOREEN FARR'S RENEWED MOTION TO DISMISS AND BRIEF ON HAVA ISSUES INTRODUCTION From the beginning, Contestant Steve Pappas‘ contest seeking to overturn Defendant Doreen Farr‘s 806-vote victory in the November 4, 2008, Third District Supervisorial election has been “a tale . . .of sound and fury, signifying nothing.” (Wm. Shakespeare, Macbeth, act. V, scene 5.)l In his First Amended Verified Petition and Statement of Contest, Pappas alleged that massive \DOONO‘UIAUJN— “fraudulent voting" had occurred in the 18 UCSB and Isla Vista precincts that he has targeted in this contest (First Amended Verified Petition, Ti 15), and that “[v]irtua11y every process and procedure for registering voters through registration drives, voting by mail, voting at precincts, checking identification of first time voters, and provisional voting in the County of Santa Barbara (i) was subject to manipulation, (ii) actually being manipulated, and/or (iii) not being safeguarded by the Santa Barbara County Registrar of Voters (‘Registrar') in the manner required under and by state and federal law“ (id, ‘E 13). In Contestant’s Trial Brief, Pappas reiterated these allegations, asserting that “massive irregularities” in pre-election registration drives conducted on the UCSB campus had resulted in thousands of ineligible voters registering to vote, and accusing Registrar Joe Holland and his staff of verifying “only a small fraction" of the new registrations through the CalValidator system.‘ (Contestant‘s Trial Brief, pp. 1, 4.) Contestant also claimed that he would prove at trial that “newly registered voters failed to disclose their complete residential address” on their affidavits of NNMNNNNNN——-—-—-———-—-fi registration, that “voters were ineligible due to lack of US. citizenship,“ that “signatures on vote OOVO‘VIAIANe-‘Osomflcxmt—‘O by mail envelopes and provisional envelopes did not match signatures on the corresponding registration cards,” and that “registration applications were not submitted by the deadline" mandated by the Elections Code. (Id, pp. 13, 15, 16.) In his opening statement, Contestant Pappas’ counsel, Jeffrey Lake, repeated these accusations and concluded by setting forth both the theory of his case and what the evidence at trial would supposedly prove: “This is the most important fact in the case. That these thousands offirst time new voters were never, never once sent through the CalValidator system to be 'Out of deference to Contestant Pappas and his counsel, Defendant has omitted the phrase from Shakespeare’s original language, as indicated by the ellipses, “told by an idiot.“ l DEFENDANT DOREEN FARR‘S RENEWED MOTION TO DISMISS AND BRIEF 0N HAVA ISSUES 0029-51 validated as eligible voters. These people never had their names. their lds, their ages, their citizenships, their addresses. nothing checked by the CalValidator system. Yet these thousands of voters, and we have identified them, voted. and they voted in this election. “As a result of this mistake, voters who were registered twice, voters who didn't even know they were registered, voters who had different signatures form the OWNOM§U~IN— person on the application . . . and incomplete information, were not validated and they voted." (Trial Transcript, Feb. 17, 2009, pp. 16-l7 [emphasis added].) And here we now are, more than four months after the election and four weeks into the trial, having heard four full days of testimony and having received tens of thousands of pages of documents and dozens of matrices and spreadsheets, and Contestant Pappas has yet to produce evidence of a single fraudulent or illegal vote. Indeed, Contestant has still not delivered to O Defendant Farr a meaningful List of Illegal Votes that he even intends to prove at trial, as required N.-—‘ by Elections Code section 16402. Moreover, it is now undisputed that the “most important fact in the case" according to Pappas’ attorneys — that “thousands of first time new voters were never. w never once sent through the CalValidator system to be validated as eligible voters“ -—, is simply not b true, and that Pappas could have known this months ago if he had only bothered to ask the V- Registrar how the CalValidator process works and what information was contained on the “DI." ‘ O\ and “CL“ files that the Registrar had provided to him. \I Faced with the uncontrovened evidence that the “most important fact“ in his case has been 00 proven to be incorrect. Contestant Pappas has now changed his whole argument regarding what NNNNNNNNN————-—~————r \D HAVA requires. As best as Defendant is able to understand it. Pappas no longer contends that the O Registrar failed to submit the names of thousands of newly registered voters to CalValidator for r— verification. Instead. Pappas apparently now argues that even after submitting the names of newly M registered voters through the CalValidator system and receiving the results of Calvalidator’s w verification in the CL reports, the Santa Barbara County Registrar was required, but failed, to A conduct some further outreach in order to “validate" the identity and eligibility of those registrants LII whose names appeared on the CalValidator Failed Records Report. and that these registrants’ names O\ were not allowed to be submitted to CalVoter (the statewide registration database), nor should they \l have been permitted to vote a regular ballot in any federal election. unless and until this "outreach" 00 resulted in some unspecified manner in the “validation" of their identity and eligibility. Defendant ' 2 DEFENDANT DOREEN FARR'S RENEWED MO’HON T0 DISMISS AND BRIEF ON HAVA ISSUES 00295 Farr understandsthat Pappas’ .counsel hasconceded that if this legal theory is not accepted by the Court, he cannot prevail in this election contest, and that there would thus be no need for any further testimony in this case. In the following sections, Defendant Fan- demonstrates that Pappas‘ latest claim regarding \OWNO‘KII'AWN.— the County Registrar’s alleged non-compliance with HAVA is unsupported by both the law and the facts. Defendant begins by laying out the pertinent legal framework, both under HAVA and under the Secretary of State’s regulations implementing HAVA‘s requirements in California. Defendant also includes therein the Secretary of State's specific responses to Contestant Pappas‘ inquiries on Ihis precise issue. in which she explained that Contestant‘s view of the law and of the Registrar‘s supposed obligations under HAVA was incorrect. Defendant then demonstrates that the Santa Barbara County Registrar‘s office has in fact dutifully complied with all of its obligations under HAVA and Califomia’s implementing regulations. Finally, Defendant shows that even if Contestant‘s most recent legal theory regarding HAVA‘s requirements were correct, it would still be of no assistance to him in this election contest because (I) HAVA‘s identification requirements for first-time voters do not apply to, and therefore provide no legal basis for challenging. this non- federal County Supervisor‘s election; (2) there is no private right of action to enforce HAVA's requirements in any‘state or federal civil lawsuit, including in this election contest; (3) there are an NNNNNNNN——n.———-—n————_.— insufficient number of votes affected by this HAVA issue. even under Contestant’s most favorable gflamb-wN—OQMNO‘UIAWN—O assertions, to change the outcome of the Third District Supervisorial election; and (4) a violation of HAVA’s registration and identification requirements would not in any event constitute lawful grounds for disqualifying the vote cast by any otherwise eligible voter. NEITHER HAVA NOR CALIFORNIA LAW REQUIRES THE COUNTY REGISTRAR TO CONDUCT ANY FURTHER “OUTREACH” ON NEW REGISTRANTS WHOSE IDENTlFICATION HAS BEEN VERIFIED THROUGH THE CALVALIDATOR SYSTEM BEFORE THEY ARE PERMITTED TO VOTE A. HAVA’s REGISTRATION AND FIRST-TIME FEDERAL VOTER IDEN'HFICATION REQUIREMENTS Section 303 of the Help America Vote Act of 2002 (“HAVA”). 42 U.S.C. § 15483. contains 3 DEFENDANT DOREEN FARR'S RENEWED MOTION TO DISMISS AND BRIEF ON HAVA ISSUES ' 00296V~ two different provisions that are pertinent to this case.2 Subdivision (a)(l) of section 303 requires “each State, acting through the chief State election official," to establish and implement “a single, uniform, official, centralized, interactive computerized statewide voter registration list . . . that contains the name and registration information of every legally registered voter in the State and assigns a unique identifier to each legally registered voter in the State." (42 U.S.C. \OOONO‘MAWNv— § lS483(a)(l)(A).) In order to assist in the compilation of this statewide registration list and the assignment of a unique identifier to each voter, subdivision (a)(5) of section 303 provides that voter registration applications must include either the applicant‘s driver’s license number or, if the applicant does not have a current and valid driver's license, the last 4 digits of his or her social security number; if an applicant has neither a current and valid driver‘s license nor a social security number, “the State shall assign the applicant a number which will serve to identify the applicant for voter registration purposes." (42 U.S.C. § 15483(a)(5)(A).) In addition, subdivision (a)(5) of section 303 mandates that “[t]he chief State election official and the official responsible for the State motor vehicle authority of a State shall enter into an agreement to match information in the database of the statewide voter registration system with information in the database of the motor vehicle authority to the extent required to enable each such official to verify the accuracy of the information provided on the applications for voter registration.” (42 U.S.C. § l5483(a)(5)(B)(i).)1 Separate and apart from the requirements set forth in section 303, subdivision (0), regarding NNNNNNNNN—————-———.—_ “\JQM&WN—O\OW\JO\M&UN—o the State’s obligation to establish and maintain a statewide voter registration database, subdivision (b) of section 303 imposes certain requirements on individuals who have registered by mail and who are voting for the first time in a federal election to show identification in order to cast 1For the Court’s convenience, the full texts of the pertinent sections of HAVA are included in Defendant‘s Appendix of Authorities submitted in conjunction with this brief. JAs Senator Dodd, the chief sponsor of HAVA in the Senate. explained. “nothing in this section prohibits a State from accepting or processing an application with incomplete or inaccurate if information. . . . So, for example, a voter transposes his or her Social Security number. or provides less than a full driver’s license number, the State can nonetheless determine that such information is sufficient to meet the verification requirements, in accordance with State law“ (148 Cong. Rec. Sl0488-02, Sl0505 (daily cd. Oct. 16. 2002).) 4 L DEFENDANT DOREEN FARR'S RENEWED MOTlON TO DISMISS AND BRIEF 0N HAVA ISSUES {;() ‘xl a regular ballot.‘ Stated briefly, these “first-time federal voters“ who have registered by mail must present one of several forms of acceptable identification when voting at the polls or must submit such identification along with their absentee ballot if voting by mail.5 (42 U.S.C. § 15483(b)(l) & (b)(2)(A).) If these individuals refuse or are unable to present any identification, they are not \DWNO‘Mbb-DN- permitted to cast a regular ballot, but they are entitled to cast a provisional ballot, which will be counted “in accordance with State law.“ (See 42 U.S.C. §§ 15483(b)(2)(B)& 15482(a)(4).) While section 303, subdivision (b), would therefore appear at first glance to require all persons who registered by mail to present identification at the time they vote for the first time in a federal election, that very same subsection of HAVA contains a huge exception that nearly swallows its rule -—- at least in states like California that have implemented subdivision (a)’s provisions governing the establishment of a statewide registration database: Pursuant to subdivision (b)(3) of section 303, the requirement to submit identification when voting for the first time in a federal election is expressly inapplicable to those individuals “with respect to whom a State or local election official matches the [driver’s license number or last 4 digits of the individual’s social security number] with an existing State identification record bearing the same NNN—_—-—-_.—o—_._.— number, name and date of birth as provided in such registration." (42 U.S.C. § lS483(b)(3)(B).) Thus, the only voters who actually are obliged to provide identification under HAVA at the time they vote (either at the polls or with the return of their vote-by-mail ballot) are those first-time ooqamssN—ovoeoxlcxuawM—o federal voters who registered by mail and whose driver’s license number or last 4 digits of their ‘As noted in the testimony at trial, the “registered to vote by mail" classification applies only to those registration affidavits that bear a US. Postal Service postmark. (See Secretary of State's HAVA Compliance Manual [Exh. 37], chap. 7, p. 1.) Therefore, if the registration affidavit was delivered to the Registrar by a third party — as apparently occurred with most of the registration forms at issue in this case — HAVA‘s voter identification requirements do not apply at all. Similarly, HAVA’s requirements only apply to voters who are voting in a federal election for the first time, so they do not apply to voters who re-registered because they changed their address or other registration information afler having previously voted in any other federal election, including the Presidential preference primary held in February 2008. NMNNN ’The acceptable forms of identification in California are set forth in 2 Cal. Code of Regs. § 20107 and include such documents as the voter’s driver‘s license, passport, student identification card, or even a utility bill, bank statement, or other document showing the individual‘s name and address. 5 DEFENDANT DOREEN FARR‘S RENEWED MOTlON TO DISMISS AND BRIEF ON HAVA ISSUES (‘0 9L3 social security number were unable to be “matehe[d]" with a state identification record bearing the same number, name and date of birth.“ , Notably, and consistent with the Tenth Amendment's reservation of undelegated powers and rights to the States, HAVA leaves the precise manner of implementing its provisions to the individual States. Section 5.05 of HAVA expressly declares that “[t]he specific choices on the \oooxrosmcwto— methods of complying with the requirements of this subchapter shall be left to the discretion of the State." (42 U.S.C. § 15485.) Likewise, in setting forth the requirement that a State shall establish a system for assigning and verifying a unique identification number for each registered voter, section 303, subdivision (a) of HAVA admonishes that “[!]he State shall determine whether the —. O information provided by an individual is sufficient to meet the requirements of this subparagraph. .— —‘ in accordance with state law.“ (42 U.S.C. § 15483(a)(5)(A)(iii) [emphasis added].) And, as stated _. N above, HAVA similarly requires that the determination of whether a provisional ballot shall be —- 5’ counted as a vote shall be made “in accordance with state law “ (42 U. S C. 15482(a)(4).) § e... Jk Accordingly, while HAVA lays out the general framework and requirements governing the —- V‘ registration and identification requirements for voters in federal elections, it is California state law . —— O\ that actually provides the details of HAVA’s implementation for elections in this state. — \l B. CALIFORNIA’S IMPLEMENTATION or HAVA . -— 00 With the approval of the United States Justice Department, California has implemented —- \O HAVA by creating the “Calvoter” statewide computerized registration database and the NO “Calvalidator” system for verifying registration applicants' driver's licenses, social security N —- numbers, and other identifying information. In addition, the California Secretary of State — the‘ NN state’s chief elections ofiicial, who is charged by HAVA with the obligation to establish the Nw computerized statewide registration list — has promulgated a series of regulations that “apply to N5 “It bears emphasizing, as the District Court held in Washington Assn. of Churches v. Reed N VI (W.D. Wash. 2006) 492 F.Supp.2d I264, 1269, that “HAVA requires matching for the purpose of verifying the identity of the voter before casting or counting that person's vote, but not as a N 0‘ prerequisite to registering to vote." The District Court in Reed therefore granted a preliminary injunction enjoining the Washington Secretary of State from enforcing a state statute that essentially N \l required the state to match a potential voter’s name to either the Social Security Administration's database or the state motor vehicle department’s database before allowing that person to register to N 00 vote, finding that the state law was inconsistent with HAVA’s scheme and Congressional intent. 6 DEFENDANT DOREEN FARR' S RENEWED MOTION TO DlSMlSS AND BRIEF ON HAVA ISSUES 00299 the Secretary of State and all elections officials within the State of California in processing, . transmitting, and maintaining voter registration records in this state," and that "establish standards and procedures for processing, transmitting, and maintaining voter registration records in a manner that conforms with the statewide voter registration list requirements set forth in the Help America Vote Act of 2002." (2 Cal.Code Regs. § 20108.) \lO‘UI# Generally speaking, as confirmed by the Registrar‘s staff who have testified in the trial to date, the Secretary of State’s regulations provide that when a County Registrar receives a new W registration form, the data on the form are input into the local Election Management [and Information] System (“EMS" or “EIMS”), and a new registrant’s driver’s license or social security 10 information is then verified by having the County Registrar submit the numbers provided by the 11 applicant to the State through the CalValidator system. The CalValidator system then sends back 12 a batch file to the County Registrar (at least in the case of a county, like Santa Barbara, whose EIMS 13 has the capacity to process such batch files) indicating whether the voter's information was 14 “verified" with the information contained in the state’s DMV or the SSA‘s social security databases. 15 1f the voter‘s information was successfully verified, the voter is then officially registered and 16 entered into the registration database through the Calvoter system. If CalValidator repons that the 17 registrant’s driver’s license or social security information could not be verified for some reason, 1s then the voter is still entered into the Calvoter system. but the County Registrar is directed to 19 contact the applicant to obtain identifying information, if it is available. If the applicant did not _ 20 provide a driver’s license or social security number on his or her registration form, but Calvalidalor 21 is able to find and match such a number to the registrant using the existing state databases, the 22 Registrar will enter the number found through Calvalidator on the voter’s registration record. And 23 if the voter submits no driver’s license or social security number, and Calvalidator cannot locate 24 one, the state will assign a unique number to the applicant that will serve to identify the voter for 25 registration purposes. In addition, the registration records of those persons who did not supply a 26 driver’s license or social security number that could be verified by Calvalidator are “flagged" by 27 the County Registrar, and if they are first-time federal voters who registered by mail, these persons 28 are required to present identification before they are allowed to vote a regular ballot at the polls or , 7 DEFENDANT DOREEN FARR'S RENEWED MOTION TO DISMISS AND BRIEF 0N HAVA ISSUES 1:03 Ul before their vote-by-mail ballots will be counted. (See generally 2 Cal. Code Regs. § 20108 et seq.) There are three specific sections of the regulations issued by the Secretary of State that are particularly pertinent to the latest claims made by Contestant Pappas in this case: Sections 20108.38, 20108.65, and 20108.70.7 Section 20108.38 sets forth the conditions under which a registrant “shall be exempt from providing further proof of identity under HAVA for the purpose coexla‘uuaww— of voting.” (2 Cal. Code Regs. §20108.38(b).) Those conditions include the circumstance in which the applicant “provided satisfactory proof of identity with the voter registration application or otherwise provided satisfactory proof of identity prior to voting in a Federal election” (id., subd. (a)(i)), as well as when the “California driver’s license or state identification number or the last four digits of the social security number provided was verified with Calvalidator or the Department of Motor Vehicles“ (id, subd. (a)(ii)). Section 20108.38 also makes clear that even when the registrant’s driver’s license or social security number was notable to be verified through CalValidator, but the registrant was determined to be otherwise eligible to vote, the local elections official “shall submit the record to Calvoter . . . and that record shall indicate that proof of identity NM”——‘_I—t———fio—l—p—l must be provided the first time the voter votes in a Federal election.“ (1d, subd. (c).) In other words, even those registrants whose driver’s license or social security numbers were not verified by CalValidator as a “MATCH" are nevertheless still immediately entered into Calvoter‘ s statewide registration database of active voters, and they are entitled to vote in a federal election as long as they are othenzvise eligible to vote, although they must either produce identification at that time or “\IO‘MABNHOOOOQO‘VIw—‘O cast a provisional ballot.a Regulation 20108.65 specifically addresses the CalValidator verification process for those registrants who have provided a driver‘s license or social security number on their application. For the Court’s convenience, copies of the text of these sections are included in Defendant’s Appendix of Authorities, as well. ”The Secretary of State‘s regulations provide that the “substantive information required to NNMMN determine eligibility to vote means the facts necessary to determine eligibility to vote, including the registrant’s name, whether the registrant is a citizen of the United States, place of residence and if the registrant does not possess a residence address at which mail can be received, his or her mailing address, date of birth, state or country of birth and a statement that the registrant is not currently imprisoned or on parole for the conviction of a felony." (2 Cal. Code Regs. § 20108.25(a).) 8 DEFENDANT DOREEN FARR'S RENEWED MOTION TO D1$MISS AND BRIEF ON HAVA lSSUES 00301 Subdivision (c) requires that all new voter registration records must be run through CalValidator before being entered into the statewide database: “Prior to submitting a new voter registration _ record in a registration update file or full load file to Calvotcr. . . , the elections official shall verify that the California driver’s license or state identification number or social security number provided . \DOOVO\UIJ>WN—‘ by a registrant in an affidavitof registration was issued to the individual named‘therein by verifyin