true the vote hearing transcript
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transcript for True the Vote v. Mississippi Republican PartyTRANSCRIPT
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION TRUE THE VOTE, JANE COLN, BRANDIE CORRERO, CHAD HIGDON, JENNIFER HIGDON, GENE HOPKINS, FREDERICK LEE JENKINS, MARY JENKINS, TAVISH KELLY, DONNA KNEZEVICH, JOSEPH KNEZEVICH, DORIS LEE, LAUREN LYNCH, NORMA MACKEY, ROY NICHOLSON, MARK PATRICK, JULIE PATRICK, PAUL PATRICK, DAVID PHILLEY, GRANT SOWELL, SYBIL TRIBBLE, LAURA VANOVERSCHELDE, AND ELAINE VECHORIK PLAINTIFFS
v. CIVIL ACTION NUMBER 3 :14CV532-NFA THE HONORABLE DELBERT HOSEMANN, IN HIS OFFICIAL CAPACITY AS SECRETARY OF STATE FOR THE STATE OF MISSISSIPPI, THE REPUBLICAN PARTY OF MISSISSIPPI, COPIAH COUNTY, MISSISSIPPI ELECTION COMMISSION, HINDS COUNTY, MISSISSIPPI ELECTION COMMISSION, JEFFERSON DAVIS COUNTY, MISSISSIPPI ELECTION COMMISSION, LAUDERDALE COUNTY, MISSISSIPPI ELECTION COMMISSION, LEAKE COUNTY, MISSISSIPPI ELECTION COMMISSION, MADISON COUNTY, MISSISSIPPI ELECTION COMMISSION, RANKIN COUNTY, MISSISSIPPI ELECTION COMMISSION, SIMPSON COUNTY, MISSISSIPPI ELECTION COMMISSION, AND YAZOO COUNTY, MISSISSIPPI ELECTION COMMISSION DEFENDANTS
EVIDENTIARY HEARING
BEFORE THE HONORABLE NANCY F. ATLAS UNITED STATES DISTRICT JUDGE
JULY 24TH, 2014 JACKSON, MISSISSIPPI
REPORTED BY: MARY VIRGINIA "Gina" MORRIS, RMR, CRR Mississippi CSR #1253 ___________________________________________________ ______
501 E. Court Street, Suite 2.500
Jackson, Mississippi 39201 (601) 608-4187
APPEARANCES
FOR THE PLAINTIFFS: MR. JAMES EDWIN TRAINOR III MR. JOSEPH M. NIXON MS. KELLY HUNSAKER LEONARD MS. KRISTEN W. MCDANALD MR. LLOYD EADES HOGUE FOR THE HONORABLE DELBERT HOSEMANN:
MR. HAROLD EDWARD PIZZETTA, III MR. JUSTIN L. MATHENY FOR THE REPUBLICAN PARTY: MR. MICHAEL B. WALLACE MR. THORNTON RUSSELL NOBILE FOR COPIAH COUNTY, MISSISSIPPI ELECTION COMMISSION:
MS. ELISE BERRY MUNN FOR HINDS COUNTY, MISSISSIPPI ELECTION COMMISSION:
MR. PIETER TEEUWISSEN MR. ANTHONY R. SIMON
FOR JEFFERSON DAVIS COUNTY, MISSISSIPPI ELECTION CO MMISSION: MR. ROBERT E. SANDERS
MR. JOHN WESLEY DAUGHDRILL, JR. FOR LAUDERDALE COUNTY, MISSISSIPPI ELECTION COMMISS ION:
MR. LEE THAGGARD FOR LEAKE COUNTY, MISSISSIPPI ELECTION COMMISSION:
MR. JEFFREY T. WEBB FOR MADISON COUNTY, MISSISSIPPI ELECTION COMMISSION :
MR. MIKE ESPY MR. SPENCE FLATGARD
FOR RANKIN COUNTY, MISSISSIPPI ELECTION COMMISSION:
MR. CRAIG SLAY
FOR SIMPSON COUNTY, MISSISSIPPI ELECTION COMMISSION :
MR. DANNY WELCH
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TABLE OF CONTENTS
CATHERINE ENGELBRECHT
Direct Examination By Mr. Nixon: 24 ...................
Cross-Examination By Mr. Pizzetta: 50 .................
Cross-Examination By Mr. Sanders 73 ...................
Cross-Examination By Mr. Wallace: 76 .................
Exhibits D-1 AND D-2 82 ............................
Exhibit D-4 89 .....................................
Cross-Examination By Mr. Teeuwissen: 94 ...............
Cross-Examination By Mr. Slay: 97 .....................
Redirect Examination By Mr. Nixon: 100 ................
KIM TURNER
Direct Examination By Mr. Nixon: 102 ..................
Cross-Examination By Mr. Pizzetta: 130 ................
Exhibits D-5 AND D-6 140 ...........................
Cross-Examination By Mr. Sanders: 143 .................
Exhibit D-7 143 ....................................
Redirect Examination By Mr. Nixon: 146 ................
Cross-Examination By Mr. Wallace: 162 .................
Further Direct Examination By Mr. Nixon: 162 .........
Cross-Examination By Mr. Slay: 164 ....................
PHILLIP C. HARDING
Direct Examination By Mr. Hogue: 166 ..................
Exhibit P-9 176 ....................................
Cross-Examination By Mr. Pizzetta: 177 ................
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ROY W. NICHOLSON
Direct Examination By Ms. McDanald: 180 ...............
Cross-Examination By Mr. Slay: 188 ....................
ELLEN SWENSEN
Direct Examination By Ms. McDanald: 196 ...............
Exhibit P-4 209 ....................................
Exhibit P-10 210 ...................................
Exhibit P-5 210 ....................................
Cross-Examination By Mr. Matheny: 213 .................
Exhibit P-11 224 ...................................
Cross-Examination By Mr. Webb 226 .....................
Cross-Examination By Mr. Wallace: 238 .................
Exhibit P-12 240 ...................................
Redirect Examination By Ms. McDanald: 241 .............
JULIE PATRICK
Direct Examination By Ms. McDanald: 243 ...............
Cross-Examination By Mr. Wallace: 254 .................
Plaintiff rests 255 .....................................
Argument by Mr. Nixon 261 ...............................
Argument by Mr. Pizzetta 281 ............................
Argument by Mr. Wallace 310 .............................
Argument by The Court 313 ...............................
Argument by Mr. Sanders 326 .............................
Argument by Mr. Slay 331 ................................
Continuing Argument by Mr. Nixon 334 ....................
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(COURT CALLED TO ORDER)
THE COURT: Please be seated. Good morning.
(ALL RESPONDED "Good morning")
THE COURT: I'm happy to be here in Jackson,
Mississippi. This is the case of True the Vote, an d others
against The Honorable Delbert Hosemann, or Hoseman, in his
official capacity as Secretary of State and then ot hers. Would
counsel please state your appearances. And I need to hear from
plaintiffs first.
MR. NIXON: Good morning, your Honor. I'm Joe Nixo n
from Houston, and I represent the plaintiff. If I could -- do
you want me to introduce our team?
THE COURT: I'd like them to speak.
MR. NIXON: Thank you.
MS. McDANALD: Kristen McDanald for the plaintiff.
MR. HOGUE: Your Honor, I am Eades Hogue, also for the
plaintiffs.
MR. TRAINOR: Your Honor, Trey Trainor for the
plaintiffs.
MS. LEONARD: Your Honor, Kelly Leonard for the
plaintiffs.
THE COURT: Okay. Defense.
MR. PIZZETTA: Good morning, your Honor. I am
Assistant Attorney General Harold Pizzetta here on behalf of
Secretary of State Delbert Hosemann.
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MR. MATHENY: My name is Justin Matheny. I'm a
Special Assistant Attorney General here on behalf o f Secretary
Hosemann.
MR. SANDERS: Your Honor, my name is Bob Sanders. I
represent Jefferson Davis County. And there will a nother
fellow -- he'll be here a little bit later -- his n ame is Wes
Daughdrill. He's also co-counsel.
MR. THAGGARD: Your Honor, my name is Lee Thaggard. I
represent the Lauderdale County Election Commission .
MR. NOBILE: Good morning, your Honor. Russell Nob ile
for the Mississippi Republican Party.
MR. WALLACE: Mike Wallace, your Honor. I'm genera l
counsel for the Mississippi Republican Party.
MR. SLAY: Your Honor, I'm Craig Slay. I'm here on
behalf of the Rankin County Election Commission.
MR. ESPY: Good morning, your Honor. I'm Mike Espy
county's counsel for Madison County.
MR. FLATGARD: Good morning, your Honor. Spence
Flatgard for the Madison County Election Commission .
MR. TEEUWISSEN: Good morning, your Honor. Pieter
Teeuwissen, Hinds County Election Commission, Hinds County
also.
MR. SIMON: Anthony Simon, Hinds County and Hinds
County Election Commission.
MS. MUNN: Your Honor, I'm Elise Munn for the Copia h
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County Election Commission.
MR. WEBB: Your Honor, Jeff Webb, Leake County
Election Commission.
MR. WELCH: Your Honor, Danny Welch, Simpson County
Election Commission.
THE COURT: All right. Thank you all. As I explai ned
in a telephone conference last week, today is a hea ring date
for the parties to make a record on matters that ei ther you
think are very important that are not already estab lished by
the papers and for me to get information so that I can be using
the same terminology you are and that the record wi ll be clear
about what we're referring to when we make argument about
various types of documents and various processes, e t cetera.
On the phone it became apparent that the parties we re
not that far apart on many issues but are very far apart on
certain fundamental questions of law. I've given t ime limits
which are designed to get everyone to focus. I'm l ess
concerned about an hour being 60 minutes than I am about
finishing this hearing today.
I have read the materials that have been submitted,
the bill of particulars, the listing and the bookle t of
evidence that the plaintiffs submitted. I have see n the --
with the attachments. Defense has not presented an y evidence
that I'm aware of. They're not late. I gave -- I told you we
would set a more specific schedule on briefing toda y. It will
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be an expedited process. But I am here to see and have
exchanges with you on the factual matters that we n eed in order
to join issue and then for me to decide this case.
Technically, the case is about what documents can b e
seen in order for the public and for the principle of
transparency to be accomplished with regard to the accuracy and
currency of voter eligibility lists. This is not a case about
voter fraud. It's a case about whether the Nationa l Voter
Registration Act has been complied with and whether or not that
act preempts some or all of very specific statutes enacted by
the Mississippi Legislature.
So this is a pretty dry case. There are obviously
implications that are serious for another day and a nother case,
but right now the issue is whether or not the peopl e and the
public who request documents from voter or election commissions
and registrars, other official entities, the State can obtain
copies of those records at a reasonable cost or oth erwise
inspect them and whether or not some redaction is r equired.
There was a request for a temporary restraining ord er.
The defense -- well, the restraining order request was to avoid
any destruction or alteration of voter eligibility lists or
other documents that were being requested. The def ense
representatives committed to me on the telephone co nference,
which was on the record, that no disruption or alte ration would
occur. And so the immediacy of the TRO, the tempor ary
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restraining order, was alleviated.
It's my concept -- and, again, I will give the
opportunity to each of the lawyers, but it is my be lief and
concept that this is a preliminary injunction heari ng. And I
would like each of those lawyers to let me know if there's a
need for any further hearings or whether we can com bine this
hearing, assuming everyone gets to put on the criti cal evidence
either in writing or orally that they want, whether we can
combine this with the hearing on the merits.
You don't have to have a definitive answer at the
beginning of this hearing, but I will tee that ques tion up.
I'm going to be asking you at the end of the hearin g that very
question. If you have an opinion at this time, you certainly
may give it to me. Mr. Nixon, are you the lead law yer for
plaintiff?
MR. NIXON: Yes, your Honor.
THE COURT: Plaintiffs. Okay. Is it your concept
that this is a preliminary injunction hearing?
MR. NIXON: Yes.
THE COURT: Okay. Do you have an opinion on whethe r
or not a further hearing on the merits will be nece ssary?
MR. NIXON: In light of the court's preliminary
comment, I believe most of what we need to do can b e joined
today. However, there is a vote dilution claim und er the
Fourteenth Amendment. So that issue I don't believ e can be
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addressed at this time.
THE COURT: You have an Equal Protection claim. Is
that your -- and that is the voter dilution?
MR. NIXON: Yes.
THE COURT: That claim is not -- it's not clear
exactly, frankly, what the claim asserts with regar d to there
being a right controversy.
MR. NIXON: Well, we've -- excuse me, your Honor. I
think we've already put into evidence the fact that there have
been several illegal votes, double votes, and --
THE COURT: I don't believe -- I'm not sure of that .
I think the evidence that I recall -- and you can r efresh me --
that is that the voter registration number, the ID number, did
not match the ID number of the person who voted. A nd there was
one where an absentee ballot was not opened, one -- a couple of
absentee ballots weren't opened, by the way, in cou nties that
are not represented here.
MR. NIXON: Right.
THE COURT: So I'm just unclear about the voter
dilution thing or the evidence that you're referrin g to.
MR. NIXON: All right. If I may take a moment just to
explain. Every lawful voter has a right to have th eir vote
given the full weight of a lawful vote. And when y ou have
illegal votes, it dilutes lawful votes, regardless of where in
the state an illegal vote occurred.
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So in this instance -- and I believe we've submitte d
to the court evidence that -- that we know now. Tw o or three I
think -- and counsel for Jeff Davis County I think can confirm
that they counted three double votes, someone who v oted in one
primary and then switched and voted in the Republic an primary
in the runoff. Those were -- those votes diluted t hree lawful
votes in the rest of the county -- the rest of the state. So
the question --
THE COURT: Well, how do you calculate three lawful
votes? What I -- the way I calculate it is you wou ld -- you
would consider the total number of votes in the Rep ublican
runoff, and then you would measure that against the three
unlawful votes or assumed unlawful votes.
MR. NIXON: Right. We're not -- we're not here abo ut
three votes.
THE COURT: Exactly. I don't think it's a one to o ne.
I think it's the universe against the number of unl awful votes.
MR. NIXON: That's right. So what the records will
show us -- if the records are able to be obtained, the records
will show us basically we're going to either debunk the myths
or prove up a problem. And we'll know the extent o f the
problem and the -- and we're not here telling the c ourt that
the court -- there's a big enough problem for the c ourt --
THE COURT: Sure.
MR. NIXON: -- to do anything, but we had to allege
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the vote dilution claim to give immediacy and exped ience to the
records issue --
THE COURT: Okay.
MR. NIXON: -- because -- because in -- I mean, thi s
happened in Mississippi before and just happened a few months
ago where a new election was ordered because the ma rgin of
victory was close, and there was a problem with so many votes
that the court ordered a new election for I think a mayor's
race.
I am not representing to you that we anticipate
finding a problem. I just don't know. But we have to look
at -- we have to obtain the records, do the analysi s. And our
client, True the Vote, is an expert in doing this. And we will
know. So maybe -- and the reason why I can't make a case on
the merits, because I may want to come back to you and say, We
have a big problem, but, thankfully, Judge, there's not enough
of a problem for --
THE COURT: Okay. Fair enough.
MR. NIXON: -- further attention.
THE COURT: So that -- because, honestly, that thir d
claim is questionably not ripe, frankly. But I hea r what
you're saying and that is that let's just put that aside and
that's not to be dealt with in this preliminary inj unction
hearing. But that is the reason why you believe th at the case
on the merits cannot be addressed --
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MR. NIXON: That's correct.
THE COURT: -- fully at this stage. Fair enough.
Thank you. Does the defense have any comment, numb er one,
on -- well, on each of my questions?
MR. PIZZETTA: Your Honor, Harold Pizzetta. I thin k
the question of ruling on the merits, I do think it 's not
something that the Secretary of State would be will ing to agree
to at this point. Voter dilution points are good o nes. We
agree there's more to be developed there.
Secondly, though, we've come to find out there's
testimony that's going to be possibly presented tod ay that
wasn't previously disclosed in the bill of particul ars. So
we're not sure yet what our universe of facts truly is. But we
do share the court's concern about getting this res olved in an
expedited matter.
Our thought is there could be a summary judgment
motion that might be more timely, that -- one of th ose where it
could end the case. It may not, but it very well c ould. But
it would leave open the possibility that something else might
have to happen.
THE COURT: Okay. Well, let's just leave it, then,
that at least as to that third claim, it's to be de cided later
as to when and how to take it up.
With regard to the first two claims, namely, the
National Voter Registration Act claim, both by the institution
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of the organization and by the individuals, those a re what our
focus will be today. And, frankly, depending on wh at the
evidence is, we'll revisit this question of whether those
claims require additional evidence on the merits co mpared to
the preliminary injunction. We'll do that down the road.
Okay.
I'm going to just throw out to you a couple of issu es
that I have a bigger picture, and then I'm going to let the
parties put on their evidence. First of all, I nee d evidence
on exactly what documents are in issue. I don't kn ow
technically, physically, what a polling book is. I could
guess. I know in Texas what they likely are. But I don't want
to do that. This is a subject of evidence.
Second, True the Vote, I'm unclear what its standin g
is as opposed to the individuals. Third, I am unde r the
impression from all of the materials I've read that the
plaintiffs want the birth dates and addresses and, of course,
names of voters, maybe additional information. It' s unclear.
But they are not asking for Social Security numbers . Is that
true?
MR. NIXON: That's correct. We are not asking for
Social Security numbers.
THE COURT: All right. Frankly, for what it's wort h,
I think that's a good move. Well, I think it simpl ifies
arising out of the Fourth Circuit case and, frankly , general
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policy.
The case is about transparency of the voting proces s
and electoral registration and eligibility lists. But there is
a countervailing principle of voter privacy. I don 't think
anyone in this room wants to squelch votes because of
unnecessary disclosures.
Back to my issues, I am going to want to know, not
necessarily today, but in short order, if there are other
lawsuits filed, pending or decided on the issue of the National
Voting records business -- Registration Act. I'm i nterested --
True the Vote seems to be an organization that is o n a mission,
and there may be other organizations of that same i lk. And so
I am interested in knowing if there are other chall enges
underway. It's more of a curiosity point, but it i s also
something that we should get out on the table.
Okay. Those were my sort of overriding questions i n
and around the merits.
I'm going to let you, Mr. Nixon, go first. It is m y
belief -- I gave you an hour. It is my belief that you should
be able to meet that or something darn close to it if you're
efficient.
Let me ask defense, is there -- I assume that
plaintiffs want to put into this hearing record eve rything that
has been submitted in writing, specifically your bi ll of
particulars evidence and --
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MR. NIXON: And our exhibits, yes.
THE COURT: -- and your exhibits.
MR. NIXON: Yes.
THE COURT: Right. Is there an objection from any of
the defense attorneys on us incorporating that busi ness into
the record? Go ahead.
MR. PIZZETTA: Your Honor, I think there is. I thi nk
much of what is encompassed in that big stack is he arsay and
is -- it fails any indicia of reliability. I know from
previous decisions this court has looked at that is sue in
preliminary injunction context.
THE COURT: Sure.
MR. PIZZETTA: And I think that the way the court
stated it was a good way, is the rules still apply even in a
preliminary injunction context, and reliability is the key. So
I think that as a blanket matter, we have objection s to those
documents.
THE COURT: Well, what I was thinking we could do w as
introduce these things, because, frankly, they're i n the court
record already. Then if you want to call any of th ose
witnesses for cross-examination purposes, you may d o that. The
concerns you have, in my book, technically go to we ight.
The written request to the counties or these incide nt
reports, those documents exist and are records that have been
presented to the counties or are -- well, I'm not s ure how
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exactly the incident reports are created. That is part of your
problem, I suspect. But the whole point is, they h ave been
created and they are in this record. So I would li ke to hear
your concerns through evidence in the form of
cross-examination. Whether we call it voir dire fo r
admissibility purposes or not, I'll decide after th e fact.
MR. PIZZETTA: Yes, your Honor.
MR. SANDERS: Your Honor, if I could, for Jeff Davi s
County, we would join the State's hearsay objection ; but we
also object to much of the -- the exhibits on the b asis of
relevancy. A lot of these exhibits detail what the plaintiffs
or the plaintiffs' volunteers did and conversations they had
with circuit clerks who are not parties. And as fa r as I'm
concerned, they might as well have been talking to the local
Ford dealer. But we just think that the conversati ons and
things done and not done with the circuit clerk are not
relevant to establishing any cause of action agains t the
election commission.
THE COURT: Okay.
MR. SANDERS: If I could say one other thing, your
Honor.
THE COURT: I don't really follow that, frankly. B ut
you represent Jeff Davis County. Right?
MR. SANDERS: That's correct.
THE COURT: So let's stick, for your purposes, to J eff
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Davis County, and I will hear you on that. Okay?
MR. SANDERS: Do you want me to save the objections
until later?
THE COURT: I'm happy for you to make objections th at
Jeff Davis County -- I was looking at the State for a broader
response. From the perspective of the individual c ounties, I
don't think there should be 20 lawyers representing everybody.
That would be unwieldy.
I'm proposing that the county lawyers represent the ir
individual interests to the extent they differ from the State's
attorney or State's interests or Republican Party's interest to
the extent they should even be in this case.
So I hear what you're saying is your concern, and y ou
have mentioned that before. And I am interested in
understanding what your concerns are because differ ent counties
may be set up differently, and I need the specifics .
MR. SANDERS: Yes, your Honor. I just wanted to ad d
that to the relevancy objection. And part of the b asis of that
is the plaintiffs have argued that the circuit cler ks are sort
of like ex officio members of the election commissi on. They
are not. And at some point we'd like to be heard o n that
joint.
THE COURT: Fair enough.
MR. WALLACE: Your Honor?
THE COURT: Yes, sir.
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MR. WALLACE: The Republican Party --
THE COURT: When you speak, at least at the beginni ng,
for the benefit of the court reporter, will you sta te your
name?
MR. WALLACE: Mike Wallace for the Republican Party ,
your Honor. The Party joins Secretary Hosemann's h earsay
objection. And I will say we came here today prepa red to deal
with nine exhibits on their list and six witnesses.
THE COURT: Okay.
MR. WALLACE: And if they want to do more than six
witnesses, I'm old enough to examine witnesses I've never seen
before. That's fine. I want the show to get on th e road.
What I don't want to do is to agree to the admissib ility of
documents written by people who are not here to be
cross-examined.
THE COURT: Well, to the extent there is some conce rn
on that, I'm going to let you make that record; but we have to
do that document by document.
MR. WALLACE: Yes, ma'am. And I want to answer you r
question about other cases. I don't know whether - - it doesn't
have to do with the National Voters case. I don't know whether
you --
THE COURT REPORTER: The what case?
MR. WALLACE: It doesn't have anything to do with t he
National Voter Registration Act. I don't know whet her the
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court is aware that the Supreme Court of Mississipp i last week
clarified the Public Records Act.
THE COURT: I did read that. Thank you.
MR. WALLACE: And so I don't know how many witnesse s
we need to establish what happened out in the count ies. The
counties are behaving as the Supreme Court has told them to
behave. And I think there's a legal question for y our Honor
but probably not a factual question on that.
THE COURT: Okay. Fair enough. And that's the kin d
of thing that we're going to put in -- you're going to put into
your briefs. But yes.
MR. WALLACE: Yes.
THE COURT: Are you referring to the McDaniel case --
MR. WALLACE: Yes, ma'am.
THE COURT: -- the Supreme Court ruled on? It is a
mandamus.
MR. WALLACE: It is a mandamus.
THE COURT: And it's been decided. And so is there
more going on in that case?
MR. WALLACE: A petition for rehearing has been fil ed,
and my friend Mr. Pizzetta represents the State. H e'd know
more about it than I do.
THE COURT: Okay.
MR. WALLACE: I do not believe the petition for
rehearing has been resolved yet.
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THE COURT: I've not seen --
MR. PIZZETTA: I don't believe so, your Honor. We' ve
not seen a final on that.
THE COURT: Okay. But that's a matter of state law .
MR. WALLACE: Yes, ma'am. I just think we may not
need to establish over and over again that circuit clerks are
acting consistently with that opinion. In other wo rds, the
question --
THE COURT: I agree with you 100 percent on that.
Okay. Mr. Nixon, we've drawn an objection to the d ocuments in
your bill of particulars. And the objection boils down to not
just hearsay but lack of authenticity and, frankly, lack of
foundation.
MR. NIXON: Yes, your Honor.
THE COURT: So do you have a witness?
MR. NIXON: Yes. The president of True the Vote,
Catherine Engelbrecht, will testify that they train volunteers.
They hand -- as part of the training, they hand the m incident
reports. The volunteers go --
THE COURT: Okay. This is time for testimony as
opposed to a proffer.
MR. NIXON: Right.
THE COURT: Would you like --
MR. NIXON: Would you like to have her testify at t his
point?
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THE COURT: Yes.
MR. NIXON: Well, then we would call Catherine
Engelbrecht.
MR. SANDERS: Your Honor, we would like the rule
invoked.
THE COURT: The rule?
MR. SANDERS: Yes.
THE COURT: Who are your other witnesses? I do hav e a
witness list from you, but I'm getting wind that th ere may be
witnesses that are additions.
MR. NIXON: They are all right here.
THE COURT: Okay.
MR. NIXON: We have two of the plaintiffs. So I
would -- I assume that they are allowed to stay.
THE COURT: Yeah. If they're a party, yes.
MR. NIXON: Mr. Phillips will not be testifying, bu t
he's on the board of True the Vote. Of course, Cat herine.
Then we have two witnesses who are nonparties who w ould then be
asked to sit outside.
THE COURT: Okay. If you are not a party and you'v e
been notified you are a witness, please step outsid e.
(COMPLIED WITH REQUEST)
THE COURT: Thank you.
MR. PIZZETTA: On behalf of the State, we have one
possible witness that we may call. So we'll have h er step out
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too. We also have our official client representati ve in place
of Secretary Hosemann, Kim Turner, who is designate d as a
witness by the other side; but we'd like her to rem ain as our
representative.
MR. NIXON: No objection, your Honor.
THE COURT: She may remain. Okay. So if you're a
witness and not the designated representative for t he defense,
step out. Thank you. All right. Would you step u p to the
witness box, please, Ms. -- is it Engelhart? Engel brecht?
THE WITNESS: Engelbrecht, yes, ma'am.
THE COURT: And raise your right hand.
(WITNESS SWORN)
THE COURT: Would you state and spell your whole na me
for the record, please.
THE WITNESS: Yes, ma'am. Catherine Engelbrecht,
C-A-T-H-E-R-I-N-E, last name, E-N-G-E-L-B-R-E-C-H-T .
THE COURT: You may proceed.
CATHERINE ENGELBRECHT,
having first been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. NIXON:
Q. Ms. Engelbrecht, what is your relationship with T rue the
Vote?
A. I'm the president and founder.
Q. What is True the Vote?
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THE COURT: Keep your voice up and be a little clos er
to the mic, please. You're the president and what?
A. The founder.
THE COURT: Founder.
BY MR. NIXON:
Q. What is True the Vote?
A. True the Vote is a nonpartisan, nonprofit organiz ation, the
nation's largest voters rights and election integri ty
organization.
Q. Are you active in the state of Mississippi?
A. Yes.
Q. Are you active in other states?
A. Yes.
Q. How many states?
A. Well, we have volunteers in all 50 states.
Q. Could you describe the activities of True the Vot e?
A. Yes. True the Vote essentially does three things . We
provide training for volunteers -- for citizens who want to
serve as volunteers inside of the elections process . And there
are so many ways that citizens can get involved. S o we
encourage that. We provide research, looking at vo ter rolls
and, frankly, to try to do what we attempted to do here in
Mississippi, is just to verify the veracity --
THE COURT: Speak a little slower. I don't know ho w
the court reporter is possibly going to get this do wn. Go
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ahead.
A. Absolutely. Well, we provide training to citizen s who want
to participate in elections. We provide research, looking at
the nation's voter files, which are public record, and
encouraging citizens to look at their own county's voter files,
their own local voter files, to determine the accur acy, the
veracity of the registry.
And then we provide support just for people who are
concerned about election integrity in their communi ties. We
provide assistance with voter registration, assista nce to
people who need identification in states where they require
identification. So that's -- that's really the ful lness of it.
Q. Do you provide training to your volunteers?
A. Yes, sir.
Q. Why did you come to Mississippi?
A. Well, initially, we came because we were -- we we re
receiving an onslaught of inquiries to us from Miss issippi
voters saying they're concerned about what they had just
experienced in the primary and were concerned about whether or
not their vote would be counted based upon things t hat they
felt like they saw. And so we really came just to see whether
or not there was any fact to that.
Q. When you came, did you notify both the McDaniel a nd the
Cochran campaigns, as well as the state GOP and the n the
Democrat candidate campaign?
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A. Yes, sir. We sent -- I sent letters to all four via e-mail
and fax to let them know that we'd be glad to talk with them or
work with them or, you know, anything.
Q. You were offering your services of True the Vote to each of
the campaigns in order to help them make sure that the vote was
valid?
A. Well, or just to -- we can't work directly with t he
campaign, but just to let them know that we were th ere and, you
know, there would be -- there are interested people who would
be willing to work with them if that was, you know, something
that those parties would be interested in.
Q. As part of your efforts on True the Vote, did you ask for
records prior to the June 26th GOP runoff?
A. Let me think about that. Well, we have the state 's voter
files, yes. So we did have those records already i n place.
And we were trying to determine what else we would be able
to -- to look at.
Q. Did you go to three counties?
A. Yes.
Q. Which counties?
A. Well, I went to Hinds and to Rankin and to Panola .
Q. And what did you ask of Hinds County?
A. Well, in Hinds County I asked for the -- I'd like to see --
I asked if I could see the absentee ballot applicat ions and
envelopes.
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THE COURT: What was the last county you went to?
Hinds, Rankin and what?
MR. NIXON: Panola.
A. Panola.
THE COURT: Panola?
MR. NIXON: P-I-N --
MR. SANDERS: No, P-A-N-O-L-A.
MR. NIXON: I'll leave it to (indicating) for the
spelling.
THE COURT: Okay. Thank you.
BY MR. NIXON:
Q. Did you also go -- well, did you make any request of Rankin
County?
A. Yes, a similar request, just asked to see absente e ballot
applications and envelopes.
Q. Was your request granted or denied?
A. Denied.
Q. In Hinds County, was it granted or denied?
A. Denied.
Q. And what request, if any, did you make of Panola County?
A. In Panola, I asked to see the report of Republica n voters
in the primary, an electronic version, sort of like the poll
book, if you will, without the signatures, but just the voting
record. And that was provided via e-mail.
Q. Okay. And it was provided digitally to you?
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A. Yes, sir.
Q. Was anything redacted?
A. No.
Q. Okay. Birth dates. You had birth dates in there ?
A. I believe so.
Q. Okay. Very good. Does True the Vote create a ba d counties
report?
A. Yes.
Q. What is a bad counties report?
A. A bad counties report is -- the last one we did w as in
2012, where we took 2012 voter registration records at the
state level and compared it to census data and dete rmined which
counties had in excess of 100 percent of their elig ible
populations registered to vote.
THE COURT: And when was the census that you compar ed
it to?
A. The 2010.
THE COURT: 2010. And when did you do the comparis on?
A. 2010 --
THE COURT: What election?
A. 2010 to the 2012 registration records.
THE COURT: Okay. So there was two years'
difference --
A. Yes.
THE COURT: -- in the --
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A. In the --
THE COURT: Two years had transpired. So you're
looking at 2012 voter records -- registration recor ds.
A. Right. Yes.
THE COURT: When you went, what did you exactly ask
for at Hinds County?
A. In Hinds County, I asked to see the absentee ball ot
applications and envelopes.
THE COURT: Only absentee?
A. Yes, ma'am.
THE COURT: And why did you ask for absentee
applications and envelopes? What are those? Appli cations I
think I understand, but you can explain if you woul d.
A. Well, the absentee ballot applications and envelo pes and
the inspection of those documents is a really impor tant part of
understanding whether or not ineligible votes were counted.
And to get to that point, by looking at the absente e ballot
application, a voter is given an opportunity to sta te why they
should be eligible for an absentee ballot applicati on. And
there's quite a process that you have to go through .
And Mississippi's laws on absentee voting are very clear.
In some states you don't have to have an excuse at all. In
Mississippi you do. And there's a number of proced ures. You
have to have a notary signature. All these things have to be
accurately filled out. And then the envelope, the signatures
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have to match from the application to the envelope.
THE COURT: And what is the envelope you're referri ng
to?
A. The envelope -- sorry. The envelope is quite lit erally the
envelope that is used to mail back the absentee bal lot
application. And here in Mississippi there have be en, in years
past, problems with absentee ballot applications an d envelopes
and, in fact, convictions of individuals who were u sing those
instruments inappropriately.
THE COURT: I see. Okay. So did you ask for the s ame
thing in Rankin County?
A. Yes.
THE COURT: Absentee applications and envelopes?
A. (Nods head affirmatively).
THE COURT: And Panola?
A. In Panola I asked for the -- the file that would show the
Republican voters in the primary election.
THE COURT: Now, why would you have the right to th at?
Under this same statute --
A. Yes, ma'am.
THE COURT: -- that's a voter record, not an
eligibility record.
A. That's correct, but --
THE COURT: I'm just not clear on why --
A. It is -- it is a part of what should be considere d public
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record.
THE COURT: Well, that's your view and you're entit led
to it. But I'm trying to measure the issues agains t --
A. Sure.
THE COURT: -- a statute. And the statute focuses on
voter eligibility and whether or not they're eligib le to
vote -- whether an individual is eligible. Help me out with
how you get to the actual voting piece.
A. The -- and I'm not sure if I'm going to answer th is
correctly or explain it correctly, but the reason t hat we were
interested in that particular file, that particular report, was
to determine and to -- you know, as -- as Mr. Nixon said
earlier, either to debunk or prove up whether or no t there were
actually illegal double votes happening, which in t his instance
would mean that someone who had voted as a Democrat in the
primary and then was going to vote as a Republican in the
runoff or vice versa, those would have been conside red illegal.
So what we were trying to do prior to the runoff wa s
establish a base of data that we would be able to t hen -- once
the runoff numbers came in, we would be able to com pare and see
quickly whether or not there was any fact to -- to the -- you
know, the allegations that were already floating ou t there.
THE COURT: Okay. And did you make that request to
Panola County with regard to -- or under the Nation al Voter
Registration Act or did you make that request under some other
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authorization? Panola.
A. In Panola, when I -- when I asked for that, admit tedly, I
didn't specify under the National Voter Registratio n Act and
that's --
THE COURT: That's fine, but I'm asking, in your
mind --
A. In my mind -- yes, ma'am. In my mind and in my e xperience,
that shouldn't have been any problem. And, frankly , I had -- I
could not have imagined that what -- where we are n ow would
have -- would have gotten to this point. I just -- I really
believed that all this would sort of work itself ou t because,
in my view, this is all public information.
THE COURT: I see. Okay. Thank you.
BY MR. NIXON:
Q. Are you able to get all this information or simil ar
information from the other states in which you are active?
A. Yes, sir.
Q. Okay. Are you familiar with the term "suspense l ist"?
A. Yes.
Q. What is a suspense list?
A. Well, God love the Tenth Amendment. We all run o ur states
a little bit differently as it relates to elections . But in
most states the suspense list refers to voters who are still on
the rolls but are required to show proof of address or some
other kind of identification to reprove their -- th e accuracy
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of their registration upon voting, if that's --
Q. Right. And so if you show back up to vote, in di fferent
states you're asked to provide different informatio n in order
to get off the suspense list and back onto the perm anent voter
rolls.
A. Right. Yes.
Q. So in answer to the court's question, why was the voting
book important? Is it important because it will sh ow which
voters were moved off of the suspense list and back onto the
permanent rolls?
MR. WALLACE: Object, your Honor. I think that --
THE COURT: Sustained.
MR. NIXON: All right.
BY MR. NIXON:
Q. What will the voter roll book show you as it rela tes to the
suspense list?
A. The voter -- the polling book?
MR. TEEUWISSEN: Objection, your Honor. True the
Vote --
THE COURT: You're using -- okay. Thank you. You' re
using different terms that are confusing.
MR. NIXON: Yes. I'm sorry. I apologize.
THE COURT: And you also were leading. I think you
figured that one out.
MR. NIXON: I admittedly was leading.
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THE COURT: Okay. No problem. But we're back to t he
this definitional question I started with. I need help here.
MR. NIXON: Okay. Yes. We had -- Ms. Engelbrecht is
not a lawyer. We do have the Assistant Secretary O f State who
I think will be able to clarify a lot more of the d efinitions
specifically, but -- as it relates to -- because ev ery state
uses different terms. And so --
THE COURT: That's my concern.
MR. NIXON: Yes. So as it relates to Mississippi, I
think we can get -- have the Assistant Secretary of State maybe
clear up some of those other issues.
THE COURT: If I don't get that definition soon, th e
record is going to be a mess.
MR. NIXON: Right. I agree.
THE COURT: So we have two choices.
MR. NIXON: I'll ask her.
BY MR. NIXON:
Q. What is -- maybe this helps.
THE COURT: I mean, you can ask her what she actual ly
asked for, and then it will sort itself out. But p ick --
but --
BY MR. NIXON:
Q. I've been confusing the terms, and I did all day yesterday
as we were talking. But what is a voter roll, in y our
understanding?
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A. A voter roll, also called a voter registry, shows ,
typically, the registration information of an indiv idual voter.
And those are all sort of compiled into a mass docu ment at the
state level that shows who's registered in the stat e.
THE COURT: Who is what?
A. Who is registered to vote in the state.
BY MR. NIXON:
Q. So voter roll is everybody?
A. Right. And then it's broken down as is appropria te for
their local elections.
Q. What is a poll book?
A. A poll book typically is a book that is used duri ng the
election that is the -- is the collection point for
information. When a voter comes in to cast their v ote, the
poll book has been auto-filled or prefilled accordi ng to voter
file information, voter roll information. And, typ ically, the
voter is asked to sign their name by their informat ion just
verifying that they are the person that voted.
MR. PIZZETTA: Objection, your Honor. For clarity
sake, I'm not sure what the witness is saying when she says
"typically." Is she talking about her experiences in other
states than Mississippi? Because what she just des cribed is
not Mississippi.
THE COURT: Okay. That's absolutely fine
cross-examination. I'll just -- let's just do it t hat way.
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BY MR. NIXON:
Q. So the -- the poll book is a subset of the voter rolls. Is
that is a fair way to say that?
MR. PIZZETTA: Objection. Calls for speculation
unless she knows --
THE COURT: Sustained. And the hesitation of the
witness indicates she doesn't understand. Here's m y question
of you. And even though I'm wearing a robe and I'm sitting up
here and not out there, I want you to either agree or disagree
with me. Okay. This is your testimony, and you're the one
under oath. And I'm not trying to trap you. I am honestly
asking a question to try to simplify. If I am wron g, please
tell me. I don't live in Mississippi. Okay?
Is the polling book the collection of pages that ha s
the list of voters in a precinct, or whatever they call it in
Mississippi, of people that the county believes are eligible to
vote on the voting day or days?
A. That is my -- that is my understanding. But my - - my
challenge is that that's one of the documents we as ked to look
at and have not been allowed to look at them.
THE COURT: So you have not even seen a sample?
A. I've seen like sort of pictures in the paper.
THE COURT: Okay. Based on that, is it the list of
voters at a polling place and -- in your way of und erstanding?
That's all I can ask is your understanding. Yes or no?
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A. My understanding is yes, and their signature, whi ch becomes
important.
THE COURT: Well, and the signature is added before
the vote or before the book -- I'm sorry -- before the day of
the election, or is the signature you're referring to added
when someone comes to the voting place?
A. When someone comes to the voting place.
THE COURT: And casts --
A. And casts their vote. Then that signature become s of
interest to an organization like ours because it be comes a
piece of the puzzle.
THE COURT: Okay. I understand your organization
cares about voter fraud.
A. Right.
THE COURT: You don't want people voting twice and the
like.
A. Yeah, among other things. We just want the proce ss to be
fair. Right.
THE COURT: Okay. But for the purposes today, the
statute that we're focused on is called the Nationa l Voter
Registration Act.
A. Yes.
THE COURT: And it is involved in making sure
eligibility lists are accurate and current. That's what the
statute says, basically.
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A. Right.
THE COURT: And you're entitled to see documents th at
implement that principle. How does a voting -- a p oll book, in
your way of thinking, fit into the validity of the eligibility
lists?
A. One example might be if someone had already voted absentee
or if they indicated that they were an absentee vot er. You
know, whether or not they were included or what tha t poll book
showed on election day, that would have been a -- i t would have
been a descriptor, I guess, or an indicator to the election
worker that the voter that might present themselves would have
already voted. That's something that the poll book typically
reflects. Does that -- am I?
So the eligibility to vote on that day would have b een
mitigated because they had already voted absentee. And that's
something that the poll book would show.
THE COURT: The poll book, in your mind, or at leas t
in other places, would show that someone had alread y voted?
A. Yes.
THE COURT: So it would have been signed or marked?
A. There would be some notation, typically along the line of
the voter's contact information, that would indicat e that they
already voted.
THE COURT: I see. Okay. I'm stopping my line not to
indicate that I agree that the polling book --
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MR. NIXON: We understand.
THE COURT: -- is part of the --
MR. NIXON: Right.
THE COURT: -- part of the documents that would be
within your claim under the National Voter Registra tion Act.
I'm just stopping because I think we're at the end of her
explanation.
MR. NIXON: Thank you.
BY MR. NIXON:
Q. Let me take you back to the incident reports. In part of
your training, do you hand incident reports to your volunteers?
A. Yes.
Q. Do you ask them to fill those out at the time tha t they
have contact with someone from whom they have reque sted
records?
A. Well, if I -- if I might, the incident reports we re only --
we had -- we had no expectation that the number of those that
we ultimately received would have been used because they were
only to be used in the instance of denial of record s -- I mean,
denial of public records.
The primary tool that we trained on was to be used for
their collection of data. So to answer your questi on, yes,
that is what the incident report was. But that was really a
secondary purpose, a secondary tool, because we had no
expectation that we wouldn't be able to get the doc uments.
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Q. How many volunteers of True the Vote came to Miss issippi?
A. Roughly, 20 some.
Q. And on what days did you send them out?
A. Oh, my word. I have to get my dates straight.
THE COURT: Would the July 7th and 8th refresh your
recollection?
A. Yes. I mean, those were two of the days that we were here.
BY MR. NIXON:
Q. And did the volunteers fill out the reports at or near the
time of their contact with the county officials?
A. Yes.
Q. Did they send --
THE COURT: Okay. Can you show her several of them
and -- because they look like a lot of them are in the same
handwriting. Can you cover that?
MR. NIXON: Yes.
BY MR. NIXON:
Q. How many --
THE COURT: Please.
BY MR. NIXON:
Q. How many teams did you send out? Teams.
A. Roughly ten teams, roughly.
Q. Okay. And were they instructed to go to multiple counties?
A. Yes.
Q. Okay. So you might have the same person fill out the
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report three or four times, depending on how many c ounties they
went to?
A. Yes. And they went very quickly because they -- we weren't
getting documents. So...
Q. Okay. So we have all of the incident reports her e, and let
me hand these to you.
MR. NIXON: By way of explanation, your Honor, with
the bill of particulars, as we understood, we provi ded all the
incident reports as related to the counties that we re sued.
But we have all of the incident reports here for ev erybody to
inspect. And I think we've even offered them to th e Secretary
of State earlier today if he wanted --
THE COURT: Copies?
MR. NIXON: Well, we didn't have copies. We just
said, Here. You want to look at them? We didn't make copies.
We didn't know how much -- we knew we had an hour. We didn't
know how much we were going to get to do.
BY MR. NIXON:
Q. Ms. Engelbrecht, pull out an incident report.
(COMPLIED WITH REQUEST)
Q. What county is it for?
A. This is for Attala County.
Q. And what date was that done?
A. On the 9th.
Q. And who did it?
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MR. PIZZETTA: Your Honor, I don't think the defens e
has a copy of that report.
THE COURT: Yeah.
MR. NIXON: No, you --
THE COURT: Go into your bill of particulars, pleas e,
and pick one.
MR. PIZZETTA: Your Honor, it may be more appropria te
if he goes into the list of the few ones that are a ttached as
possible exhibits today as opposed to the bill of p articulars,
which --
THE COURT: That would be fine. That would be fine
too. I don't care.
MR. SANDERS: Your Honor, we would also object to t he
testimony about Attala County.
THE COURT: I can't hear you.
MR. SANDERS: We would also object to testimony abo ut
Attala County, a visit to Attala County.
THE COURT: Yes. I understand. I agree with that.
That's why I'm not receiving that. With due respec t to the
State, frankly, you're on notice in this bill of pa rticulars
business. And I'm not persuaded -- I'm not persuad ed that that
stuff is not potentially exhibits here.
MR. PIZZETTA: I understand, your Honor, just --
THE COURT: I understand they introduced other
documents as exhibits, in quotes; but the incident reports,
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we've all seen them. They're in the bill of partic ulars. And
so --
MR. PIZZETTA: We've not seen all of them, your Hon or,
but I think you're right. The bill of particulars --
THE COURT: I didn't -- I didn't say we'd seen all of
them. I said we all have seen the ones in the bill of
particulars. That's all I'm saying.
You're right. None of us have seen the rest of the m.
You're very right on that. So do you want to take her through
one of them that we have seen, Mr. Nixon, please?
MR. NIXON: Sure. And the benefit of this one is - -
BY MR. NIXON:
Q. Let me show you what's been marked as Exhibit 4 a s part of
the bill of particulars. And, Ms. Engelbrecht, if you can just
look at the computer screen in front of you, that w ould be
probably there. Is it not that clear?
A. No.
(PAUSE)
THE COURT: The electronics expert is going to help
you. There's an auto focus. And, frankly, if you adjust the
lights on the left and right, it will make it brigh ter.
(EXAMINED DOCUMENT)
THE COURT: Great.
MR. NIXON: Thank you.
THE COURT: Thank you, sir.
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BY MR. NIXON:
Q. Okay. Ms. Engelbrecht, if you could, turn your - - do you
have it there in front of you now?
A. Uh-huh (indicating yes).
Q. Okay. Is this a form provided by True the Vote?
A. Yes.
Q. Okay. Do you see where it's signed by Ellen Swen sen?
THE COURT: For the record, this is Exhibit 4.
Correct?
MR. NIXON: Yes, it is.
THE COURT: Plaintiffs' 4?
MR. NIXON: Yes.
BY MR. NIXON:
Q. Do you see where it Plaintiffs' 4?
A. Yes.
Q. Down at the bottom. And it's filled out by Ellen Swensen?
A. Uh-huh (indicating yes).
Q. Is she one of the volunteers of True the Vote?
A. Yes.
MR. NIXON: And for the court's benefit, Ms. Swense n
is here today.
BY MR. NIXON:
Q. Did True the Vote receive this incident report? And it
looks like it's page two, page three of five, and s igned by
looks like Ellen Swensen and Susan Morse at the bot tom.
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A. Yes.
Q. Is this the type of report that you asked your vo lunteers
to fill out?
A. Yes.
Q. Just to describe what happened.
A. Right.
Q. And then do they return the report back to you?
A. Yes.
Q. And do you keep the report in the course and scop e of your
business?
A. Yes.
Q. And is it in the function of True the Vote and yo ur
function as president of True the Vote to keep inci dent
reports?
A. Yes.
Q. And why do you do that?
A. Well, because it becomes sort of part of the arch ive of
what happened, and it gives us a clear indication o f what did
or didn't occur and then -- that's it.
Q. Is this a true and correct copy of the original i ncident
report filled out by Ms. Morse?
A. It appears to be.
Q. And was it filled out at the time of their visit to the
specific county? I believe --
A. Yes.
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Q. -- Jones County. Was it -- okay. Very good. Do you have
incident reports for all of the teams that went out ?
A. Yes.
Q. Is that the folder that's in front of you today?
A. Yes, although I thought there were more, but yeah .
Q. Now, you did not sue all of the counties for whom you had
contact?
A. No.
Q. Why not?
A. Well, there -- there were so many incident report s that
came back, and it just became a function of time an d
consideration of, you know -- frankly, of whose -- whose
experiences most clearly showed what we were experi encing
statewide and --
Q. Did some of the counties cooperate and provide yo u with --
A. Yes. Yes.
Q. With regard to the voter poll book and the voter rolls,
both of those two items that we've been talking abo ut, is that
information available now electronically?
A. The voter rolls are available electronically, but poll
books are not.
Q. Okay.
A. To the best of my knowledge.
Q. Is the information from the poll book recorded no w on the
voter rolls, so if we were to get a voter roll from Mississippi
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today, would it have the information as to who vote d in the
primary on the voter rolls?
MR. PIZZETTA: Objection. Lack of foundation. Cal ls
for speculation.
THE COURT: Sustained. It sounds like she doesn't
know.
MR. NIXON: Okay. We'll get that from the Secretar y
of State.
BY MR. NIXON:
Q. Are you asking for the -- also for access to the military
and oversea vote applications?
A. Yes, the UNOCAVA. Yes, sir.
THE COURT REPORTER: I'm sorry. The what?
A. Yes, UNOCAVA. It's U-N-O-C-A-V-A. It's just a t urn of
phrase, I guess, for military ballot applications.
THE COURT: That's the name of the statute, isn't i t?
A. Yes.
THE COURT: Solid caps, for the record.
MR. NIXON: One last thing before I pass the witnes s
and we get on to some of the -- because I think som e of the
other witnesses will be able to fill in the gaps.
BY MR. NIXON:
Q. You talked about that bad incident -- bad countie s reports.
THE COURT: Bad -- bad --
MR. NIXON: Counties. Bad counties.
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BY MR. NIXON:
Q. -- where you have more registered voters than you have
eligible population. Nationally, what is about the average of
registered voters to the eligible population?
A. On average, about 72 percent.
Q. How many counties in Mississippi have more regist ered
voters, when you last ran your numbers, than they d id
eligible -- citizens eligible to vote?
A. 15 counties.
Q. 15 counties. Out of 82?
A. Yes, sir.
Q. Okay.
MR. NIXON: I will pass the witness.
THE COURT: Cross.
MR. PIZZETTA: Your Honor, do you want us to be hea rd
on the evidentiary issue about this document? It w asn't -- he
didn't move it into evidence. I imagine he wants t o move it at
some point in time. How do you want to handle --
THE COURT: I'm going to wait on the evidence -- th e
final evidentiary rulings until I've heard the evid ence from
all of the witnesses. We have a chicken-and-an-egg problem.
I'm just figuring he's going to try to tie it up wi th the next
-- with the witness who wrote the document. If he does not do
it at the end of the hearing, yes, you will be hear d.
MR. PIZZETTA: Thank you, your Honor.
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THE COURT: You can be heard anyway.
CROSS-EXAMINATION
BY MR. PIZZETTA:
Q. Again, I'm Harold Pizzetta with the Secretary of State's
office. Ma'am, when was it that you said you went to Hinds
County?
A. It was the Thursday or Friday before the runoff, and I'm --
that date -- I don't know the exact date.
Q. Okay. I'm interested --
A. Or maybe that Monday. I'm so sorry. It really w as a blur,
but prior to the runoff.
Q. It could have been the day before the actual runo ff
election?
A. It was either the week -- the latter part of the week prior
or possibly that Monday.
Q. About that same time that you say you went to Ran kin and
Panola?
A. Uh-huh (indicating yes). Well, we went to Panola first. I
went to Panola first.
Q. All would have been -- maybe I'll put it this way -- within
two to three business days of the June 24th electio n?
A. Yes.
Q. Do you remember?
A. Yes.
Q. All right. And I'm interested because the judge directed
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plaintiffs to give us a list, a bill of particulars , by a
certain day that described every contact and every request for
documents. Were you aware of that requirement?
A. I knew there had been -- there were documents bei ng
prepared for this purpose.
Q. Did they show you the bill of particulars before they filed
it?
MR. NIXON: Objection. Calls for -- excuse me. Ca lls
for attorney-client privileged conversation.
MR. PIZZETTA: I'm not asking what they asked about
it. I'm asking if maybe she verified it for accura cy.
THE COURT: Well, I'm going to take the answer as a no
if you don't let her answer.
MR. NIXON: Okay. Go ahead.
BY MR. PIZZETTA:
Q. Ma'am, why is it that these three contacts, the t hree
contacts you -- the only three contacts --
THE COURT: Do you want to know the answer to the
question? I've overruled his objection.
MR. PIZZETTA: Oh, I'm sorry, your Honor. I though t
you sustained. Please --
THE COURT: I was going to supply him with an answe r,
and he sat down instead. So he -- I think you may ask the
question again if you want the answer.
MR. PIZZETTA: Thank you, your Honor.
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BY MR. PIZZETTA:
Q. Were you shown the bill of particulars before it was filed
to verify its accuracy?
THE COURT: Can you wave the bill of particulars?
It's this (indicating). Mr. Nixon, would this have been what
was -- was it bound with the tabs, or no? I'll let you make a
representation. She doesn't seem to be familiar wi th this
document.
MR. NIXON: We --
THE COURT: The series of documents, I should say.
A. Well, I mean, things were certainly sent via e-ma il, and we
reviewed a great many things. This is -- this is a ll a
brand-new world to me. So I just don't want to -- I don't want
to make a mistake or not answer something that I'm being asked
inadvertently.
THE COURT: The lawyers submitted to the court a bu nch
of incident reports and some other things, and that 's what the
lawyer is asking you. Did you review this document before
you -- in connection with your testifying or prepar ing in this
lawsuit?
(WITNESS EXAMINED DOCUMENT)
THE COURT: And when I say "document," I mean this
series of documents, this booklet or packet.
A. All of these, yes, I've certainly seen the --
(WITNESS EXAMINED DOCUMENT)
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A. Yes.
Q. All right. That's okay. That's my copy.
A. Sure. Oh, sorry. Yes.
Q. All right.
A. It's just a lot of documents.
Q. What I'm curious about, ma'am, is that it's -- th e only
three contacts that your lawyer asked you about are actually
not listed in this bill of particulars as having ev er occurred.
I'm curious. When you looked through it, did you n otice that
your three contacts were not listed on there?
A. Not as it related to documents, because I didn't come away
with any documents that would have been submitted.
Q. Not just any documents on the bill of particulars . It's
any contact was listed in there from True the Vote.
A. Okay.
THE COURT: Listen to me. I don't care.
MR. PIZZETTA: Okay.
THE COURT: All right. Honestly, you can make
whatever argument you want. It's clear they're not in there,
but that's the lawyer argument.
BY MR. PIZZETTA:
Q. Did you fill out an incident report related to th ose
contacts?
A. No.
Q. All right. But you train your volunteers, you sa id, to
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fill out incidents with any such contacts.
A. At the time that we actually had volunteers come from
across the country to do a statewide review, yes. For the
three visits that I thought would have been no big deal, I did
not fill out my own incident reports, no.
Q. Did you get a copy of the business cards from any of those
individuals you spoke to at those three counties?
A. No.
Q. Hinds County you did not ask for a voter roll. C orrect?
A. No. I -- I have the state's -- or True the Vote has the
state's voter rolls. So there was no need to ask f or that.
Q. True the Vote -- I'm sorry. Say that again.
A. True the Vote has the state voter file. And, aga in --
And, Judge, you and I are in somewhat similar situa tions.
In every state there are oftentimes different terms used. So
it's voter roll, voter file, it's -- and I'm just - - I'm being
hesitant because I want to make sure I'm answering the question
correctly.
Q. Let me be more specific, then. You already have a list of
Mississippi -- of all of the eligible --
A. We have -- not in Mississippi, but in most -- mos t all the
country, we have 770 million, yes.
Q. And that list contains the name and address of al l those
registered voters?
A. Yes.
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Q. Does it contain date of birth of those registered voters?
A. In some cases, yes.
Q. I'm sorry. Be specific. In Mississippi's list o f eligible
voters you have, does it have date of birth in ther e?
A. I don't believe so.
THE COURT: What? I couldn't hear the answer.
A. I'm so sorry. I don't -- I don't believe it does .
BY MR. PIZZETTA:
Q. Does have it the voter registration ID number tha t is
associated with each of the registered voters?
A. Yes. I believe it does.
Q. All right. When you went to Rankin County -- I'm sorry.
In Hinds County and Rankin County, you didn't ask f or poll
books either. Correct?
A. No, sir.
Q. What was it that you said you asked for in Panola ? Was it
a -- it wasn't a poll book?
A. It was the report that showed the Republican vote rs --
Republican voter turnout in the primary election.
Q. Did that list have birth dates on it for voters o r no?
A. I really don't remember. I answered earlier that I thought
it did, but I really don't remember.
Q. You stated a moment ago that you thought poll boo ks in
Mississippi contained a voter signature. Have you seen any
poll books produced by any county, redacted or othe rwise, in
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Mississippi?
A. No.
Q. You have gotten, though, some redacted poll books from
Mississippi, haven't you?
A. It is possible that some of our volunteers did re ceive that
information, and -- but I -- I have not looked at i t myself,
no.
Q. Would it surprise you to learn that a poll book i s not a
list of all registered voters for a precinct?
A. Not -- not particularly, no, because the definiti ons state
by state are so nuanced.
Q. You'd agree with me there is a difference between a poll
book and a voter roll. Correct? They're not the s ame thing.
A. I would agree that in this state, apparently, tho se
definitions are different, yes.
Q. Are you aware of the fact that people who -- a vo ter who
shows up on election day and is not listed on the p oll book is
still eligible to vote?
A. In most states that's -- that's accurate, yes.
Q. Are you aware of that being the case in Mississip pi?
A. That -- that would -- yes. I mean, that would be my -- my
expectation.
Q. Let me see if we can add a definition to what we' ve been
talking about, crossover voting. And I want to sep arate it and
make sure we're on the same page. We're not talkin g about a
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voter who is improperly registered. But I want to make sure
that you and I are talking about the right thing fo r crossover
voter.
Do you understand the phrase, let's say, "improper
crossover voter" to be a registered voter who votes , for
instance, in the Democratic primary on June 3rd and then votes
in the Republican runoff on June 24th? Is that an example of
an improper crossover vote, in your opinion?
A. In my opinion and my understanding of Mississippi law,
that's -- that's illegal, yes.
Q. And I want to draw a distinction here. That has nothing to
do with the voter being registered -- properly regi stered.
Right? If they're not properly registered, they sh ouldn't be
voting in any primary. Right?
A. Correct.
Q. So True the Vote, one of their focuses in the com plaint is ,
We want to know whether a registered voter voted in the
Democratic primary on June 3rd and the Republican r unoff on
June 24th. Right?
A. Yes.
Q. Am I right that is a matter -- it's not a federal matter.
It's a matter of state law as to who can participat e in those
primaries. Correct?
MR. NIXON: She's not --
THE COURT: Sustained.
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MR. NIXON: -- not a lawyer.
THE COURT: Sustained.
MR. PIZZETTA: All right.
BY MR. PIZZETTA:
Q. You've received unredacted poll books from some c ounties
already? A moment ago you said you thought you had .
A. Here again, I think we have.
Q. Well --
A. We -- if I may, we anticipated that our -- our te ams -- we
have a very -- very few people, and we anticipated that we
would work in very few counties and become very fam iliar with
the process. That was not, however, our experience because we
were not given access to documents. And so it -- i t became
very difficult to keep track of the bits and pieces that
were -- because there was such variation county to county.
Q. Let me be specific. For those poll books that yo u have
received already from counties, you have received s ome that
included birth dates. Correct?
THE COURT: Included birth dates?
MR. PIZZETTA: Birth dates.
BY MR. PIZZETTA:
Q. Correct?
A. I -- I -- I don't know.
Q. Well --
THE COURT: If she doesn't know, move on. Time.
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Maybe there will be somebody else who does. And if not, you
can call a witness.
MR. PIZZETTA: I mean, she verified in the TRO -- t hat
was one of the facts in the TRO, your Honor, but --
THE COURT: I know.
BY MR. PIZZETTA:
Q. All right. So as you sit here today then, you ha ve -- you
personally -- and you're not -- I mean, are you awa re of anyone
at True the Vote that has analyzed the unredacted p oll books
that you've already received?
A. That has analyzed them?
Q. Yes.
A. I mean, that has done more than view them? No. And if I
may, if it was in our -- if it was in our TRO, then that's
something that we absolutely would have had and wou ld have
looked at. And I apologize. There have been so ma ny documents
in various forms, some with birth dates, some with none, some
that were whited out, some that were partially whit ed out.
It's been all over the board.
Q. That's what I guess I want to get to. According to the
TRO, you've received unredacted poll books with dat e of birth,
and you've told the court it's important that you r eceive the
rest of these ASAP, but yet sitting here today, you don't know
whether you all have analyzed any of the data that you have
gotten to establish whether there's any crossover v oting.
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A. I think what we saw was such an inconsistency acr oss the
state, that a true analysis would have been -- woul d have been
incapable of really showing anything.
Q. You've received -- also received redacted poll bo oks, poll
books with date of birth redacted, from counties al ready,
haven't you?
A. I believe so. Yes.
Q. All right. So when you looked at those -- have y ou looked
at those poll books to determine whether there are any
crossover voting yet?
A. I believe that our volunteers in certain counties did have
an opportunity to find -- or did -- did find crosso ver votes.
THE COURT: Okay. That's not the question. The
question was did you.
A. I did not personally. No, I have not laid eyes o n it
myself personally.
BY MR. PIZZETTA:
Q. Is it fair to say that your volunteers have been able to
come up with allegedly improper crossover voting by looking at
redacted poll books without date of birth?
A. They could come to a point where they would see t he same
name. However, it would be, in our opinion, inconc lusive
unless we would have a date of birth to key off of.
THE COURT: Is there a reason why -- I think this i s
where he's going. Is there any reason why you can' t just
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identify the universe of crossover voters, which ha s to be a
heck of a lot smaller than the universe of all vote rs --
A. Right.
THE COURT: -- who showed up to vote on the runoff
day, identify the universe of crossover voters and then ask for
those birth dates? I mean, wouldn't that be a heck of a lot
easier and cheaper for your purposes?
A. I mean, that would -- that would be -- if we had access to
all the data, that would be one of the ways that we would go
about it, but when --
THE COURT: I think what he's driving at is why --
A. Sure.
THE COURT: -- do you need to get birth dates of ev ery
voter or every eligible voter? When I say "eligibl e," I mean
people on the voter rolls. Isn't there really some thing more
going on here that you want to get all that persona l
information about all these voters? That's what he 's driving
at.
A. Well, the date of birth in the example that you'r e giving
about crossover voting would be -- would be one app lication.
And, Judge, I would agree with you that would be th e systematic
approach we would take is to try and as quickly as we could
with electronic -- you know, electronically provide d files, you
know, ferret out who seemed to have voted twice or voted in a
crossover condition in this case and then look at t he birth
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dates to try to add a layer of validity. However, that's just
one application of where date of birth becomes impo rtant. Date
of birth can be used to -- and is used as a primary peg for
many things.
THE COURT: Well, I'll let you answer that when
someone else asks, but thank you. I don't want to steal the
thunder from the lawyers.
MR. PIZZETTA: Your Honor, your thunder was much
better than mine. Thank you.
THE COURT: I know, but I am trying to move this
along.
MR. PIZZETTA: Thank you, your Honor.
BY MR. PIZZETTA:
Q. Is there any restrict- -- if you were given acces s --
MR. PIZZETTA: Let me represent to the court first,
there are -- there are about 1.8 million voters who appear on
poll books.
BY MR. PIZZETTA:
Q. And is your position being you think you're entit led to
look at the date of birth of all 1.8 million voters if you so
requested?
A. I think that's what the NVRA requires federally; and,
certainly, in the instance of many states, that's t he case.
Q. Am I right there's no restriction on what you cou ld do with
that information once you have it? Right? You cou ld sell it.
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You could post it on the Internet. You could do an ything you
want with it, couldn't you?
A. No. You're restricted with what the allowance of voter --
the utility of the voter rolls is.
Q. What restriction --
THE COURT: I'm sorry. I'd like to know what those
restrictions are.
MR. PIZZETTA: Your Honor, that's exactly what I wa s
going to ask.
BY MR. PIZZETTA:
Q. What are -- where are you getting this from?
A. Well, it's -- it's my understanding that when you make the
request of the state for those files, it's -- you i ndicate that
you're not going to use that for commercial purpose s. That is
a primary limitation. So, basically, you're not go ing to use
it to solicit, you know.
THE COURT: I missed a word. You're not going to u se
it for what?
A. For commercial purposes. That you wouldn't use i t to, you
know, try to take all the mailing addresses and sen d a -- you
know, a mailer to everybody's home advertising for a product or
something.
THE COURT: What about a candidate?
A. Well, candidates have access to the voter rolls, yes.
THE COURT: But not dates of birth.
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A. Well, in many states they do have access to dates of birth.
THE COURT: I'm only worried about Mississippi.
A. Sure. Sure. And my understanding is, currently they
don't.
THE COURT: So would True the Vote use the dates of
birth and all this detailed personal information ab out voters
for purposes other than checking the validity of th e votes in a
particular election?
A. We would check votes in a particular election. W e also
look at the maintenance and accuracy of the voter r egistry, not
compared necessarily to an election but just in and of itself.
THE COURT: Okay. Fair enough. Other purposes tha t
you might use it for? Lending it to candidates tha t you liked?
A. No. No, no, no. I'm so sorry. No.
THE COURT: Well, what is the restriction that you' re
aware of that prevents an organization like yours - - maybe you
would not, but an organization like yours from doin g that?
That is, if it's some Democratic organization, they 've gotten
all this detailed personal information, what's wron g with them
lending it to some Democratic -- not lending it, bu t providing
it for free to some Democratic campaign?
A. In the case of True the Vote, we are a 501(c)(3)
organization. We do not work directly with candida tes. And as
a matter of organizational policy, we wouldn't do i t because it
undermines the entire sort of efficacy of our proje cts, I would
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say.
THE COURT: But do you have to be a 501(c)(3)
organization to get this information?
A. No.
THE COURT: In fact, individuals can get it. Corre ct?
A. It's publicly available, yes, ma'am.
THE COURT: So an individual that has no constraint s
about tax deductibility or any of that could -- jus t an
individual could turn around and use the informatio n any way
they wanted, other than commercial, other than sell ing it for
commercial products?
A. I am not certain of the exact stipulations that M ississippi
may put on its voter files. In many states there a re, you
know, several things that you're not allowed to do. You're not
allowed to contact voters. You're not allowed to, again, use
things for commercial purposes. So --
THE COURT: Okay. So it's a matter of state law.
A. -- there are restrictions. Yes.
THE COURT: To your way of understanding.
A. Yeah. My understanding is that voter files are p ublic
record according to the NVRA. But when you order t hem state to
state, that process is handled differently.
THE COURT: Okay. Well, you may proceed.
BY MR. PIZZETTA:
Q. I think the last question I have on that would be , as far
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as you know, there's no legal restriction on an ind ividual or a
group who gets those dates of birth from just posti ng them on
the Internet then?
A. I mean, as far as I know, no, but it's -- well, n o.
Q. I'll switch gears, then, to I think the standing issue,
which was one of the questions the judge raised abo ut True the
Vote's standing. Does True the Vote have members?
A. No.
Q. All right. It's not a membership organization?
A. No. No.
Q. Do any of the folks that went out to make request s on
behalf of True the Vote, do they pay dues to True t he Vote?
A. No.
Q. Did you have relationships with any of those indi viduals
prior to them becoming involved in the Mississippi election?
A. That came and did the research on behalf of True the Vote?
Q. To do the request. Did you know them before they came
over?
A. Yes.
Q. How did you get in touch with them? Did you ask them to
come to Mississippi?
A. Well, we -- we said that we would be going, and a nyone that
was already involved in research in their own state s, if they
were interested in joining us, then we welcomed the m to come.
Q. Did you contact them or they contacted you?
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A. Both.
THE COURT: I couldn't hear the answer.
A. Both cases.
THE COURT: Both?
A. Yeah. Some contacted us; some we contacted.
BY MR. PIZZETTA:
Q. Did you tell them which counties to go to?
A. Yes.
Q. Did you tell them when to go to a particular coun ty?
A. Well, on -- we would tell them, you know, on a da y to try
to go to these counties. We just tried to cover as many
counties as we could.
Q. When you sent -- for example, on -- for Hinds Cou nty, there
were -- True the Vote volunteers -- there were seve ral of them,
according to the bill of particulars, made five vis its just to
Hinds County to ask for documents over two days. D id you tell
them to all go separately to Hinds County and ask f or
documents?
A. Our teams were sent to work in a county and with each --
with each day -- in fact, some -- in some cases eve ry passing
hour there was a new understanding of what the proc ess was.
And so in some instances we did ask teams to go bac k to try to
clarify the request or try to -- because we were ju st hitting a
wall of -- seemingly, of just -- we couldn't unders tand where
the disconnect was.
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Q. Did they ask for the same documents every time th ey showed
up?
A. No, not necessarily.
Q. Did they -- they didn't ask for the same document s even in
the same form when they showed up on different occa sions.
Right? Sometimes they'd ask for it in PDF; sometim es they'd
ask for it in Excel. Right?
A. Well, we -- we would have instructed them to ask for it
electronically in whatever format they could get it . So I
wouldn't know why they would go back on separate da ys to ask
for separate file extensions, but...
Q. Did you instruct any of your volunteers to not id entify
themselves as associated with True the Vote?
A. It was discussed that if -- you know, if they wer e asked to
fill out a form, that they should feel comfortable filling it
out as an individual. There certainly was not a pr oblem with
representing that they were here, you know, with Tr ue the Vote.
But they're not tied with True the Vote in any othe r way.
So...
Q. Did you tell them to identify themselves as True the Vote
volunteers?
A. We just -- we didn't really tell them not to. We said be
an individual and...
Q. I'm curious as to why True the Vote sent out thes e letters
to the parties, the Democratic Party and the Republ ican Party,
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those folks, saying, We're coming and we might be asking for
some documents. Why didn't True the Vote draft one letter that
could be delivered to the clerks that clearly set f orth what
they were requesting, under what authority and when they would
like to have it?
A. Well, our feeling was that time was of the essenc e and that
it would be more productive to manage these things in person.
MR. PIZZETTA: Your Honor, I'm nearing the end.
BY MR. PIZZETTA:
Q. Would you agree with me that there's likely to be
Mississippi voters who would feel that disclosure o f their date
of birth is an invasion of their privacy?
A. I would agree that people feel that about many th ings and
things still are publicly available.
Q. You'd agree they feel like that about date of bir th too,
don't they?
MR. NIXON: Your Honor --
A. They might --
MR. NIXON: -- this calls --
A. -- feel that way --
MR. NIXON: -- for speculation.
A. -- about anything.
THE COURT: What's the objection?
MR. NIXON: It just calls for speculation as to wha t
this witness might think Mississippi voters would f eel.
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THE COURT: Sustained.
BY MR. PIZZETTA:
Q. Do you feel that your date of birth is a sensitiv e piece of
private information?
THE COURT: Your date of birth coupled with your na me
and address --
MR. PIZZETTA: Thank you, your Honor.
THE COURT: -- or just date of birth in the abstrac t?
MR. PIZZETTA: Your Honor, very good.
BY MR. PIZZETTA:
Q. Your name, address and date of birth is a private and
sensitive bit of information.
A. I believe that it's so publicly available in so m any forms
that it's --
THE COURT: What, your name, address and date of
birth?
A. Yes. I mean, it's on your driver's license. It' s a
standard that's used to, I mean, verify a great man y things.
It's not difficult to come by if somebody really wa nted to do
something.
THE COURT: That wasn't the question. The question
was do you think -- what was the question?
A. Personally, no, I don't. Personally, no, I don't believe
that your date of birth -- now, I would cross the l ine at
Social Security, and we certainly haven't asked for that.
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BY MR. PIZZETTA:
Q. Are you aware that the Federal Trade Commission, the
President's Task Force on Identity Theft, the Texas Attorney
General's web site and the Mississippi Attorney Gen eral's
web site all counsel individual citizens to guard a nd protect
and not publicly disclose their date of birth?
A. I was not aware of that. No.
Q. The last set of questions I have then, True the V ote has
been at least publicly accused of intimidating vote rs. Is that
a fair statement?
A. Those accusations have been made, yes.
Q. And those accusations are -- and I understand you take
great issue with those. But those accusations are sufficiently
public, right, that if you Googled True the Vote -- I did. I
came up with stories in the Los Angeles Times . Have you seen
those kinds of stories?
MR. NIXON: Your Honor, I would --
THE COURT: Sustained.
MR. NIXON: Thank you.
THE COURT: Relevance.
MR. NIXON: Relevance.
MR. PIZZETTA: Relevance, your Honor, would be -- I
think one of the -- the rationale behind the Nation al Voter
Registration Act is to encourage registration. One of the
concerns we have would be, if voters know that publ ic date of
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birth is available to groups like True the Vote, an d there is
lots of public accusations that True the Vote uses that type of
information to intimidate voters, that that would u ndermine the
purpose of the NVRA by --
THE COURT: Okay. I understand the argument.
MR. PIZZETTA: Okay.
THE COURT: It's argument, just that.
MR. PIZZETTA: And that was just for the relevancy,
your Honor. That's why --
THE COURT: I know. Okay. Overruled -- I mean --
sorry. Your objection to my ruling is overruled, a nd his
objection is sustained. Where am I? Who's on firs t?
MR. PIZZETTA: I'm not sure what that means, but wh at
I think it means is I'm done.
THE COURT: It means move on. If you want to put i nto
the record something about True the Vote's own repu tation and
publicity, blah, blah, blah, I'll let you do that; but let's
just move on. This is --
MR. PIZZETTA: Got you.
THE COURT: I really want from this hearing just wh at
the witnesses can supply us that others cannot.
MR. PIZZETTA: Thank you, your Honor. Then I think I
have no more questions.
THE COURT: Thank you.
MR. NIXON: Nothing further.
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THE COURT: Okay. Thank you, ma'am.
MR. SANDERS: Your Honor.
THE COURT: Oh, I apologize. Please forgive me.
MR. SANDERS: Your Honor, Bob Sanders for Jefferson
Davis County.
THE COURT: Thank you.
MR. SANDERS: Just very briefly.
CROSS-EXAMINATION
BY MR. SANDERS
Q. Ms. Engelbrecht, you have had a chance to look at the bill
of particulars that Mr. Pizzetta handed you. It's correct,
isn't it, that in that bill of particulars the peop le
associated with True the Vote visited circuit clerk s in
Mississippi? Is that right?
A. Yes.
Q. All right.
A. Well, I mean, they visited, just in trying to und erstand
the process, you know, anybody that seemed like the y could
help, circuit clerks among them.
Q. All right. It's correct, isn't it, that no perso n
associated with True the Vote made any direct conta ct with any
member of the Jefferson Davis County Election Commi ssion? Is
that correct?
A. I -- I can't -- I don't know every member of the
commission.
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THE COURT: Let's just ask it this way. Do you kno w
of any person who contacted Jefferson Davis County for their
voting records or anything else? Is that the quest ion?
MR. SANDERS: Well, we stipulate they contacted the
circuit clerk's office.
THE COURT: Oh, okay.
MR. SANDERS: They didn't sue the circuit clerk. T hey
sued -- they sued the election commission. And I'm just trying
to find out whether anyone associated with True the Vote had
any contact or made any request to anyone with the election
commission, the defendant here.
THE COURT: Okay. Fair enough. Do you know anythi ng
about that?
A. I mean, I don't. I know that volunteers went to Jefferson
Davis County, and I know that, you know, incident r eports
were -- were a result of that. But I -- I can't te ll you
everyone that they spoke with there.
BY MR. SANDERS:
Q. All right. And if I asked you that same question with
regard to the other eight defendant counties or cou nty election
commissioners, would your answer be the same?
A. I --
THE COURT: The distinction is the election commiss ion
versus the county clerk. Correct?
MR. SANDERS: Yes, ma'am.
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THE COURT: All right. Do you understand?
A. I do. I do understand. I just -- I -- the under standing
of the process here, admittedly, was confusing. Be cause you
had -- if I may, you had the State saying they had no
responsibility over the county, the county saying t hey had no
responsibility over the State, the parties saying t hat they --
THE COURT: It's a different question, ma'am.
A. I'm so sorry.
THE COURT: That's all right. His question was, di d
anybody that you're aware of go to a county electio n commission
or commissioner in any of these eight counties? It 's a yes or
no question. Do you know of anyone who did go to a n election
commissioner or election commission office? Yes or no. Do you
know?
A. No. I mean, they went to counties that -- that - -
THE COURT: Did they go to the county clerk's offic es?
A. Yes, in the county courthouse.
THE COURT: Okay.
MR. SANDERS: That's the circuit clerk. All right.
That's all.
THE COURT: Circuit clerk?
MR. SANDERS: Yes, ma'am.
THE COURT: Okay. Thank you.
MR. WALLACE: May I proceed, your Honor?
THE COURT: Yes, please.
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CROSS-EXAMINATION
BY MR. WALLACE:
Q. Are you the same Catherine Engelbrecht who's been
persecuted by the Internal Revenue Service?
A. Yes, sir.
Q. And have you -- has True the Vote received its
qualification under Section 501(c)(3)?
A. Yes, sir.
Q. Your complaint alleges that True the Vote is orga nized
under Texas law. What Texas law are you organized under?
A. I mean, we're incorporated in Texas. Is that --
Q. You are a corporation.
A. (Nods head affirmatively).
Q. You are a corporation. Do you have shareholders?
A. No.
Q. Okay. Are you organized as a nonprofit corporati on?
A. As a nonprofit corporation.
Q. And you have no shareholders?
A. No shareholders, no --
Q. I think you already testified you have no members ?
A. (Nods head affirmatively).
Q. And under Texas nonprofit corporation law, who is in charge
of True the Vote?
A. Well, you have a board that forms your corporatio n, and
then inside of that, you just -- you know, just dep ends on your
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own articles of incorporation and bylaws.
Q. And how many board members do you have?
A. Three.
Q. Okay. And who are the board members?
A. Myself.
Q. Yes.
A. Dianne Josephs. Actually, there's four. Dianne Josephs,
Gregg Phillips and Brent Mudd.
Q. And where do those folks live?
A. Brent lives in --
Q. I don't need their addresses and birth dates.
A. Thank you.
Q. Generally, where do they live?
A. Brent lives in Georgia, Gregg lives in Texas, I l ive in
Texas, and Dianne lives in Texas.
Q. Okay. Thank you very much. Now, you testified t hat you
contacted the Mississippi Republican Party to seek information.
Is that correct?
A. Yes.
Q. I'm going to show you a letter of June 25th, and I'm going
to ask if you authorized your True the Vote's lawye r to send
this to the Mississippi Republican Party.
MR. WALLACE: If I may approach the witness, your
Honor.
THE COURT: Sure. What are you show -- let's mark it
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as an exhibit. Okay?
MR. WALLACE: Yes, ma'am. Exhibit 1 would be fine.
THE COURT: Exhibit 1 for defense.
(OFF-RECORD DISCUSSION WITH STAFF ATTORNEY)
THE COURT: Counsel for the defense, can we just ru n
all the exhibits as defense exhibits, or would you rather be
segregated by actual party name?
MR. WALLACE: The record will show who put them in,
your Honor. Let's just do them 1, 2, 3, all the wa y through.
THE COURT: Defense Exhibit 1?
MR. WALLACE: Yes, ma'am.
THE COURT: I'm indifferent, but it is fairly simpl er.
MR. WALLACE: They seem to be happy with that.
THE COURT: Thank you. Defense Exhibit 1 marked fo r
identification. Okay. You may proceed.
BY MR. WALLACE:
Q. Did you authorize True the Vote's lawyer to send this to
the chairman of the Mississippi Republican Party?
A. I did.
Q. Excuse me?
A. I did, yes.
Q. Okay. And what documents did you request in this letter?
(WITNESS EXAMINED DOCUMENT)
A. We just asked that the absentee ballots be preser ved until
there would be an opportunity to review them.
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Q. Okay. And other than the absentee ballot materia ls, you
didn't request any other documents from the Mississ ippi
Republican Party. Is that correct?
A. Well, we asked for absentee ballot applications, absentee
ballots and accompanying mailing envelopes.
Q. All of which have to do with absentee ballots. I s that
correct?
A. In the instance of this letter, yes.
Q. And you mentioned the ability to challenge absent ee voters
at the polls. In the middle of the second paragrap h, "True the
Vote believes that concerned citizens, including po ll watchers,
who fit in both of the above-described categories, have been
denied the ability to challenge the absentee voter
qualifications."
Do you have personal knowledge of anyone who was de nied the
ability to challenge absentee voter applications?
A. Many of our plaintiffs were.
Q. I'm asking for your personal knowledge, Ms. Engel brecht.
Do you know of anyone who was denied the ability to challenge
absentee voter appli- -- qualifications?
A. My understanding is that many of our plaintiffs w ere not
given opportunity to review absentee ballot applica tions at
this -- at the point that this letter was sent.
Q. And that is what you have heard from your plainti ffs. Is
that correct?
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A. Among many other things, yes.
Q. But you have -- but you yourself have no personal knowledge
of absentee -- of denials or the ability to challen ge absentee
ballots? Personal knowledge is, you were there; yo u saw it.
That didn't happen, did it, Ms. Engelbrecht?
A. No.
Q. Okay. Do you have personal knowledge of --
A. Not at the time this letter was sent. I mean --
Q. Okay. And this letter, by the way, was sent the day after
the runoff, wasn't it?
A. Uh-huh (indicating yes). Yes.
Q. All right. Now, do you have personal knowledge o f anyone
who challenged any voter in the runoff in the Repub lican
primary on runoff day?
A. I -- I don't know whether or not that happened on --
Q. Okay.
A. -- the day of the election.
Q. And I want to show you Exhibit 2.
MR. WALLACE: If I may, your Honor.
A. But, I mean, I'm not -- maybe I'm missing -- our request
wasn't to be able to challenge the voters on the da y of the
election as it relates to absentee documents. It w as just to
determine whether or not the absentee documents wer e properly
filled out. They don't come to the polls on electi on day.
They voted absentee.
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BY MR. WALLACE:
Q. But the absent -- you are aware, are you not, tha t absentee
ballots are opened and counted on election day? Is n't that
correct, Ms. Engelbrecht?
A. That should be the process, yes.
Q. All right. And you are aware, and I think that y our
lawyer's letter says, that people are entitled on e lection day
to challenge those absentee ballots. Isn't that th e law?
A. That is my understanding of the law, but I unders tood you
to say to challenge voters, and I wanted to be very clear that
that's -- we're not challenging voters casting thei r vote in
person on election day but rather checking the accu racy of the
documents.
Q. And I did ask a different question. I asked if y ou know of
and if you have personal knowledge of any vote bein g challenged
of an in-person voter on runoff day, and I think yo u said you
had no such personal knowledge.
A. If I'm to give -- if I understand your definition of
"personal knowledge" correctly, then, no, I do not.
Q. Thank you. Let me show you another exhibit.
MR. WALLACE: If I may approach the witness.
THE COURT: Yes. You may approach witnesses withou t
asking, unless somebody gets threatening.
BY MR. WALLACE:
Q. Did you or your lawyer --
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MR. WALLACE: And, your Honor, we might as well mar k
it Exhibit 2 now.
THE COURT: I did.
MR. WALLACE: All right.
THE COURT: Do I have objections so far to these
letters?
MR. NIXON: Not from the plaintiffs. Not to either
exhibit.
THE COURT: All right. Then these two are received in
evidence. For the record, the second document -- a re you going
to identify it?
MR. WALLACE: The second document is a letter from
Chairman Nosef to True the Vote's lawyers. There i sn't a date
on page one; but if you look at page two, it was se nt on
June 27th.
(EXHIBITS D-1 AND D-2 MARKED)
BY MR. WALLACE:
Q. Were you aware that this letter had been sent,
Ms. Engelbrecht?
A. Yes.
Q. And were you aware that the Republican Party had informed
you that it has no absentee ballot materials?
A. I was aware that that's what the Party said, yes.
Q. Okay. And since receipt of this letter, you have
nevertheless sued the Republican Party twice. Is t hat correct?
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A. I'm sorry. I didn't understand.
Q. After the receipt of this letter, you nevertheles s sued the
Republican Party twice. Is that correct, Ms. Engel brecht?
A. Sued them twice?
Q. Yes. You sued us in Oxford and then you sued us here.
Isn't that correct?
A. Maybe I don't understand. I mean -- am I misunde rstanding?
Q. True the Vote filed a lawsuit on July 1, I think, in
Oxford, Mississippi, voluntarily dismissed it, and then -- a
week later and then --
A. I'm so sorry.
Q. -- filed this lawsuit --
A. Yes. Yes. Yes. Yes. That's exactly right.
Q. All of that happened after the Party told you it had no
absentee ballot materials. Isn't that correct?
A. Yes.
Q. All right. Now, I want to show you another exhib it which
will be Exhibit 3.
(WITNESS EXAMINED DOCUMENT)
THE COURT: Do you recognize that document?
A. Yes, ma'am.
THE COURT: Okay. What is it, for the record?
MR. WALLACE: This is attached to a document that T rue
the Vote's lawyer has filed with the court.
BY MR. WALLACE:
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Q. And, in particular, I want to direct your attenti on to your
verification, which is on page -- it appears to be page 15. If
you look at the computer-generated numbers at the t op of the
page, on say page 15 of 20, "Verification," do you see that?
A. Let me catch up with you here.
THE COURT: Mr. Wallace, this document has -- well,
she's looking. This document has an exhibit tag co pied on it.
MR. WALLACE: Yes, ma'am.
THE COURT: Exhibit 1. I know why, but I'd like to
put the exhibit sticker here today over that. Woul d that be a
problem?
MR. WALLACE: It will make the record much clearer
Thank you, your Honor.
THE COURT: Thank you.
MR. WALLACE: I think that ought to be done.
THE COURT: I just wanted it to be clear. Thank yo u.
Do you recognize that document?
A. Yes, ma'am.
THE COURT: Is that your signature?
A. Yes, ma'am.
THE COURT: Okay. Next question.
BY MR. NIXON:
Q. Beginning on page one in this second line, "I her eby
declare and verify that regarding the facts and all egations of
which I have personal knowledge, I believe them to be true."
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Of what facts and allegations in the motion for tem porary
restraining order do you have personal knowledge,
Ms. Engelbrecht?
A. Well, certainly, I had personal knowledge of what I had
experienced in the three counties.
Q. And on the second page, you list Hinds County and Rankin
County where you've had personal experience. You d on't list
Panola County. And you list a lot of other countie s. Do you
have any personal knowledge of what happened in Cop iah County?
A. My understanding was that by my signature I was i ndicating
the -- that all the things that happened to all the volunteers
that were there and affiliated were, I mean, sworn and attested
to. So that became, in my understanding, my person al
knowledge.
Q. So you had personal knowledge of what happened in Hinds
County and Rankin County; but as to everything else in the
motion for temporary restraining order, you were re lying on
what was told to you by the volunteers that you dis cussed
during your -- during your direct testimony. Is th at correct,
Ms. Engelbrecht?
A. Yes.
Q. And you don't have any personal knowledge of anyt hing that
the Mississippi Republican Party did that you discu ss in the
TRO -- in the motion for TRO, do you, Ms. Engelbrec ht?
A. I would have to read through this to make sure th at I'm not
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misstating anything.
Q. All right.
THE COURT: I'm going to give her a chance to do th at
at a break.
MR. WALLACE: It's as good a time as any to break,
your Honor.
THE COURT: I'm not planning to break yet, but I'm
just saying I'm going to give her that chance so we don't waste
time in here. And then, counsel for plaintiff, you will be
able to represent that she does need to get back on the stand
or she doesn't. Right now it appears she doesn't k now what's
in those papers. She only has a very limited amoun t of
personal knowledge. And we'll close this loop late r. Okay.
MR. WALLACE: Thank you, your Honor.
BY MR. WALLACE:
Q. Do you have -- let me try to ask the question thi s way.
You testified that you know the Republican -- that the
Republican Party told you they didn't have any abse ntee ballot
materials that you asked for. Do you have any reas on -- do you
have any personal knowledge to indicate that repres entation to
be false?
A. In the letter that Chairman Nosef wrote to one of our
attorneys he indicated that they didn't have any -- any
involvement in any of the absentee ballot process. That was
not what -- what we were being -- what I was being told -- what
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we were being told, what our attorneys were being t old by our
plaintiffs.
Q. And, in fact, Mr. Nosef told you that the absente e ballot
materials could be found in the circuit clerk's off ice or
should be found in the circuit clerk's office. Isn 't that
correct?
A. I'm not certain. Does he say exactly where to fi nd them?
(WITNESS EXAMINED DOCUMENT)
Q. In the last paragraph, "As far as possession of t he ballot
material," and he cites the statute --
A. Oh, my gosh.
Q. -- that Section 645 and 911 clearly places the
responsibility of keeping the contents of the ballo t box with
each county's circuit clerk.
Now, you have been to see those circuit clerks, hav en't
you? Some of them.
A. Our volunteers have seen all kinds of people all over this
state.
Q. And you haven't learned anything to contradict wh at
Mr. Nosef told you, which is that the Mississippi R epublican
Party doesn't have them.
A. Several of our volunteers, and I even believe a w itness who
will testify later today, I believe, did have inter action with
party members.
THE COURT: Okay. Move on.
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MR. WALLACE: All right. We'll move on, your Honor .
BY MR. WALLACE:
Q. Other than the absentee ballot materials, did you have
personal knowledge of the Republican Party being as ked to
produce any other documents by True the Vote?
A. No.
Q. Okay. So as far as you know, the Mississippi Rep ublican
Party has not denied you access to any documents. Isn't that
right?
A. As our volunteers were going out to the various c ounties,
they were being told various things. In certain in stances it
was -- it was understood that the Party was, in fac t, running
the primary. In certain instances it was that the county was.
In certain instances it was that the Secretary of S tate's
Office was giving direction, which is -- which lead s to -- you
know, to my position now, which is, there was an aw ful lot of
finger-pointing going on.
The Party's responsible for the primary, but then t he Party
wasn't responsible for the primary. The Secretary of State was
and then wasn't. So I apologize, but there was no clear line
of distinction, which is what made the approach tha t we took,
we felt, necessary.
Q. My question is not what True the Vote heard in th e
counties. My question is what True the Vote said t o the
Mississippi Republican Party. Isn't it a fact that you did not
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ask Mississippi Republican Party for anything other than the
absentee ballot papers discussed in Exhibit 1?
A. To the extent that any county's Republican Party members
were there assuming a position of authority, it is entirely
possible that volunteers talked to the Party and as ked for
documents.
Q. But you don't have any personal knowledge of anyb ody doing
that, do you, Ms. Engelbrecht?
A. Based on your definition of personal knowledge, I did not
personally experience that. However, as the repres entative of
the larger organization with volunteers who have at tested to
experiencing that, then, in my mind, that qualifies as personal
knowledge.
Q. Okay. I think the judge will decide whether that
qualifies --
THE COURT: Okay. Stop.
MR. WALLACE: I'm sorry. I'm arguing. I'll quit.
THE COURT: Ask a question.
MR. WALLACE: Exhibit 4, your Honor.
THE COURT: All right. Any objection?
MR. NIXON: No objection.
THE COURT: All right. 4 is received.
(EXHIBIT D-4 MARKED)
BY MR. WALLACE:
Q. Can you identify Exhibit 4, Ms. Engelbrecht?
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A. Exhibit 4?
Q. It says "Exhibit 1" at the bottom, but it was Exh ibit 1 to
something in the court file.
THE COURT: I'm covering that, again, with my stick er,
Exhibit 4. Okay.
MR. WALLACE: Yes, ma'am.
BY MR. WALLACE:
Q. So this is now known as Exhibit 4, the "Breaking News, True
the Vote." Can you identify that?
A. Yes.
Q. And what is it?
A. It is a statement that was put out by our organiz ation.
Q. And what's the headline?
A. "True the Vote Files Motion for Restraining Order Against
Mississippi Republican Party."
Q. Okay. I'd like you to look at page -- go back to what I
believe is Exhibit 3 -- it's the document right beh ind your
verification -- beginning on page 17.
A. I'm sorry. This isn't marked.
Q. If you'll look at the -- I'm asking you to look a t the --
at the exhibit that begins with the letter of July 10, 2014. I
think --
A. Okay.
Q. -- I think it's the thickest exhibit you have.
A. Yes. It's also marked as Exhibit 1. So --
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Q. They all do.
A. Okay.
Q. And if you go toward the end, page 17.
A. All right.
Q. That's the order granting motion for temporary re straining
order. Is there anything in the order that True th e Vote's
lawyers submitted to the court that refers to the M ississippi
Republican Party in any way, shape or form?
A. Not -- not by name except on the title block, aga in, with
the understanding that the Party has claimed respon sibility for
the primary.
Q. And in your press release you refer to the affida vits we
now have regarding the destruction of election docu ments. Do
you have any personal knowledge -- and we'll start with you
again, Ms. Engelbrecht -- any personal knowledge of any
destruction of any documents by the Mississippi Rep ublican
Party?
A. We have a witness who's given sworn testimony or given an
affidavit to that effect.
Q. There is one affidavit that was filed with your m otion and
that was Colonel -- Colonel Harding, I believe. Yo u refer to
affidavits plural here. Do you have any affidavits of anybody
other than Colonel Harding about the destruction of anything?
A. Well, we list several things that we claim to hav e -- or
that we have affidavits for beyond that -- beyond t he
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destruction of documents.
Q. But the sentence you wrote, "If the affidavits we now have
regarding the destruction of election documents."
A. And other similarly stunning findings.
Q. So is it, in fact, the case that Colonel Harding is the
only affidavit you have about the destruction of el ection
documents?
A. I believe we -- I don't know if we've talked to o ther
people. I don't know. But we only have the one he re that I
know of. But, again, this press release indicates that there
were other things that were found in addition to.
Q. And you're aware that -- and you're aware that Co lonel
Harding's affidavit doesn't say anything about the Mississippi
Republican Party whom you sued in this lawsuit?
MR. NIXON: Your Honor, if it facilitates things,
Colonel Harding has been sitting in the witness roo m all
morning. And he's available to testify as to what specifically
he saw in his role as a party or either volunteer o fficial and
what he was instructed to do.
THE COURT: Okay.
MR. WALLACE: And we withdraw the question in the
interest of moving on, and I --
THE COURT: I would like you to move on, please --
MR. WALLACE: Yes.
THE COURT: -- because you've exhausted this witnes s'
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knowledge. It's perfectly clear she does not have personal
knowledge of anything --
MR. WALLACE: One of the things -- one of the thing s
she does have personal knowledge of, and I'll sit d own.
BY MR. WALLACE:
Q. The night after you did that press release, you s ent out a
fundraising -- fundraising e-mail, didn't you?
MR. NIXON: Objection to the relevance.
MR. WALLACE: She's here. She's asking for --
THE COURT: I'll allow it.
MR. WALLACE: -- attorney's fees.
THE COURT: I'll allow it.
MR. WALLACE: You'll allow it.
THE COURT: I will allow her to answer. Please
answer.
A. I have sent out a fundraising letter. I don't kn ow if it
was the night after or not.
BY MR. WALLACE:
Q. And you have sent out several fundraising letters asking
people to help you in your fight against the Missis sippi
Republican Party. Isn't that correct?
A. Mississippi Republican Party and other listed par ties. I
mean, we've tried to describe the fullness of the s uit.
Q. Any idea how much you've collected since you sent out that
e-mail?
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THE COURT: I don't really care. Please move on.
MR. WALLACE: We're done, your Honor. Thank you.
THE COURT: All right. Any further questions for t his
witness?
MR. TEEUWISSEN: Pieter Teeuwissen for Hinds County
Election Commission. I'll be brief, your Honor.
THE COURT: You may proceed.
CROSS-EXAMINATION
BY MR. TEEUWISSEN:
Q. Ms. Engelbrecht, I want to make sure I clarify yo ur
knowledge. You said you had some personal knowledg e or
personal involvement with Hinds County. And did I understand
your testimony correctly that the Thursday, Friday or Monday
before the June 24th election you went to Hinds Cou nty?
A. Yes, sir.
Q. And where did you go?
A. Into the courthouse into a room, I believe -- or an area I
believe was marked either the "Circuit Clerk" or it had on the
doors "Election Information." There was some confu sion even
into where we should be directed. So I don't recal l the exact
name of the office.
Q. Which courthouse did you go to?
A. The main -- I would assume the main courthouse. I mean,
I'm unfamiliar with -- with all of the courthouses.
Q. Are you aware there are two Hinds County courthou ses in
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Hinds County?
A. Not specifically, no.
Q. Are you aware there are two judicial districts in Hinds
County?
A. Not specifically, no. But, I mean, that doesn't surprise
me.
Q. I'm trying to find out where you went, and you ga ve us a
vague description.
A. Okay.
Q. Maybe you can tell us who you spoke to.
A. I didn't get her name. I mean, I signed the regi stry book,
if that's any help.
Q. Not to me. I didn't even know there was a regist ry book.
I've been practicing for 24 years.
A. Well, I didn't know there were two judicial distr icts. So
we're even.
Q. Okay. So you didn't get the name of the person t hat you
went to on the day you're not sure -- at the courth ouse you're
not sure where it's located. Did you talk to the s ame -- did
you go more than once?
A. No.
Q. Do you know if the person you spoke with worked i n the
circuit clerk's office or the election commission's office?
A. I know that the person that I spoke with showed m e the --
the SEMS database and said that she couldn't provid e anything
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and didn't know how to provide anything and was as nice as she
could be but couldn't help.
Q. And the only thing you asked her for from your ea rlier
testimony was absentee ballot applications and enve lopes.
Correct?
A. Yes.
Q. Do you know the name of the circuit clerk in Hind s County?
A. No.
Q. Did you ask to speak with the circuit clerk of Hi nds
County?
A. No.
Q. Do you know the name of any election commissioner s in Hinds
County?
A. Not -- no.
Q. Did you ask to speak with the chairwoman or chair man of the
election commission of Hinds County?
A. No.
Q. This unidentified person that you spoke to on the
unidentified day, did you tell that person you were seeking any
records pursuant to the NVRA?
A. No, not pursuant to the NVRA.
Q. And was this your only personal involvement in ma king a
request upon Hinds County?
A. Yes.
THE COURT: The question was, was this her only?
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MR. TEEUWISSEN: Personal involvement in making a
request on Hinds County.
A. Yes.
BY MR. TEEUWISSEN:
Q. And any other involvement by True the Vote would have been
detailed in the submissions that have been submitte d to the
court?
A. Yes.
MR. TEEUWISSEN: That's all I have, your Honor.
MR. SLAY: Your Honor, if I may. I'm Craig Slay,
Rankin County Election Commission. I apologize, yo ur Honor.
We -- obviously, we have two counties that involve this witness
personally: Hinds, who we just heard from. I'm Ra nkin. And
so I apologize, but I feel like I need to address t he witness
with a few questions.
THE COURT: Okay.
CROSS-EXAMINATION
BY MR. SLAY:
Q. I'm Craig Slay. I work with Rankin County. My q uestioning
will be similar to what you just heard. On the dat e that -- we
don't -- I believe your testimony is that you don't recall the
date that you went to Rankin County. It could have been the
Thursday, Friday or the Monday prior to the June 24 primary
election. Is that correct?
A. That's correct.
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Q. All right. Do you recall where in Rankin County you went
to request the information that you sought?
A. It seemed to be an annex-type building that went in the
front, and there were a number of people there, ver y --
seemingly very engaged in all kinds of election, yo u know,
proceedings.
Q. Do you recall who you spoke with?
A. We spoke with many people there, but specifically with
Becky Boyd, I believe her last name is. Is that --
Q. Okay. You recall speaking to somebody named Beck y?
A. I believe so. Yes.
Q. Okay. Did you get a business card?
A. I did not get a -- there again, I signed the regi stry
and...
Q. If your Honor will allow, can you describe the la dy that
you spoke with, her appearance?
A. Gosh, I would guess late 50's, early 60's, Anglo. I don't
recall hair color. Maybe she wore glasses. I'm no t sure. I
mean...
Q. Any idea what her responsibility or title is?
A. I believe she is the circuit clerk, I believe.
Q. Becky, circuit clerk.
A. And I -- again, I may -- that may be incorrect, b ut she
certainly seemed to have -- she was the one we were directed
to, and she certainly seemed to have knowledge of t he process,
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thorough knowledge of the process.
Q. Thank you.
A. And, again, was as nice as she could be.
Q. And to speed this along, you testified earlier th at you
asked for the absentee ballot applications and the envelopes?
A. Yes.
Q. Did you ask for any other documents from Becky?
A. No, but I will say that she gave us -- I was with one other
person, and she gave us sample documents or blank d ocuments so
that we would be able to familiarize ourselves with the
absentee ballot application, the variety of envelop es that
they're put in. She was very helpful, to the point that we
asked for the absentee ballot applications themselv es.
Q. Did you ask for any other documents other than wh at we just
listed here?
A. On -- no, sir. No, no. No.
Q. Did you follow up with any writing of any kind to Rankin
County, whether the election commission, the circui t clerk or
anyone else, with respect to your request having be en denied?
A. We did not, but we -- we sent a letter to the Sec retary of
State believing that that would be a quicker route to
understand what we could and couldn't have.
Q. So your answer is, no, you didn't send any --
A. Not specifically to Rankin County. Again, no.
Q. Okay. Same question that Mr. Teeuwissen asked. When you
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spoke to this person in Rankin County on whatever d ay it was
that you went, did you invoke -- did you mention th e National
Voter Registration Act in any way during that conve rsation?
A. We talked for an awfully long time, and it's poss ible -- I
don't know specifically whether I did or not.
Q. You don't have any recollection of having invoked the
federal act?
A. It's entirely possible that I mentioned it. My
understanding of the NVRA is that I don't -- that a citizen
does not have to go in and claim under the NVRA, bu t that it's
just federal law.
MR. SLAY: Your Honor, I have nothing further.
THE COURT: Anybody else, defense? Redirect.
MR. NIXON: I just have -- I just have a couple of
questions for now, subject to her taking a break an d looking
at...
REDIRECT EXAMINATION
BY MR. NIXON:
Q. Birth dates and voting records, do you have birth dates and
voting records?
A. Yes.
Q. Have you ever released that information anywhere?
A. No, no.
THE COURT: When you say "you," are talking about h er
personally?
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MR. NIXON: No. I'm talking about True the Vote.
Maybe I should --
A. It's the whole personal knowledge thing, I know.
BY MR. NIXON:
Q. When I say "y'all," "y'all," or "True the Vote," does True
the Vote have birth dates?
A. Yes.
Q. Do you release them at any time anywhere?
A. No.
Q. How long has True the Vote collected records?
A. Since early 2010.
Q. Okay.
MR. NIXON: That's all I have for right now, subjec t
to her having a chance to review the document.
THE COURT: Okay. Thank you. Anything else for th is
witness? All right. You're excused, ma'am. Thank you. You
may step down. All right.
We're going to have a break, 15 minutes. We're goi ng
to go until about 1 or 1:15 and then take a lunch b reak. Your
lunch break is directly -- well, I should say is in versely
proportional to the length of time you take with th ese next
witness or witnesses, inversely. So -- because I'v e told
counsel we need to finish this hearing today. I'd like to see
counsel up here. We're off the record.
(RECESS)
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THE COURT: Are we ready to go?
MR. NIXON: Yes, your Honor.
THE COURT: Great. Your next witness.
MR. NIXON: That would be Kim Turner, the Assistant
Secretary of State for elections for the State of M ississippi.
(WITNESS SWORN)
THE COURT: Okay. Would you state and spell your
whole name for the record, please.
THE WITNESS: Sure. My name is Kim, K-I-M, Turner,
T-U-R-N-E-R.
THE COURT: Thank you. You may proceed.
KIM TURNER,
having first been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. NIXON:
Q. Ms. Turner, my name is Joe Nixon. I'm a lawyer f rom
Houston, Texas. I know we've not had a chance to t alk -- meet
yet. How are you doing today?
A. I'm fine. Thank you.
Q. Tell us your role -- what role you serve in the S ecretary
of State's Office.
A. I am the Assistant Secretary of State in charge o f the
elections division.
Q. And how long have you had that role?
A. Two years.
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Q. Is it your job function to oversee the elections process
for the State of Mississippi on behalf of the Secre tary of
State?
A. Not oversee, no. Our division is charged with ma ny
different obligations and duties, but I would never say
"oversee the election." We provide support. We're a resource
for election officials and candidates and circuit c lerks. But
we have no authority to actually oversee or conduct these
elections. We're a bottom-up state.
Q. Explain to the court what that means.
A. It means that elections are conducted at the loca l level.
So municipal elections are conducted by municipal e lection
commissioners or municipal executive committee memb ers. And
state and county elections, including federal elect ions, are
conducted at the county level. So our county elect ion
commissioners conduct general elections, and our co unty
executive committees conduct primary elections.
Q. Are you a lawyer licensed to practice law in any state?
A. In Mississippi.
Q. In Mississippi. Are you familiar with the Nation al Voter
Registration Act?
A. I am.
Q. Okay. Are you familiar with the fact that the Na tional
Voter Registration Act requires each state designat e a chief
election officer for the enforcement of that statut e?
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A. Yes.
Q. Are you familiar with the fact that the Secretary of State
has been designated as the chief elections officer for the
State of Mississippi by a statute passed by the Mis sissippi
Legislature?
A. Under the NVRA, yes.
Q. Okay. Are you aware that there were document req uests that
are being made on behalf of True the Vote and indiv idual voters
in Mississippi, are being made pursuant to the Nati onal Voter
Registration Act?
A. I am aware, through secondhand knowledge, that pu blic
records requests were made by people affiliated or associated
with True the Vote but not necessarily that they we re made
through the National Voter Registration Act.
Q. Can we boil this whole issue down to whether or n ot the
State of Mississippi wants to produce birth dates i n addition
to the voter registration name, address and unique
identification numbers?
A. I think "want" is a mischaracterization, but it i s whether
or not the State of Mississippi and its subparts is able to
produce those dates of birth given the Mississippi Public
Records Act and Mississippi Statute 23-15-165.
Q. So you believe the State of Mississippi has a rig ht or
obligation pursuant to its state law to not produce birth dates
to a request made subject to the National Voter Reg istration
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Act?
A. We're talking about two separate issues between t he
National Voter Registration Act and Mississippi Pub lic Records
Act. And the requests that have been made have bee n made
pursuant to Mississippi Public Records Act, and tho se are state
law requests. It's not for me to guess what the le gislature
meant, but it was that that's how our statute is wr itten.
Dates of birth, Social Security numbers, they're ex empt from
disclosure.
Q. Okay. Once again, though, is it -- is this whole dispute
just simply about -- do you think that True the Vot e made a
request under state law, or do you think that it ma de a request
under federal law? And if they made a request unde r federal
law, would that end the lawsuit?
THE COURT: Okay. Compound question. Split it up.
BY MR. NIXON:
Q. Do you think True the Vote made a request under s tate law
or federal law?
A. Again, the State of Mississippi has seen no reque st. Our
office received no request. Information I received is
secondhand from circuit clerks' offices or other so urces of
information. So I don't have any firsthand knowled ge as to
their public records requests, but the information I have
received indicated it was pursuant to state law.
Q. If you had the understanding that the request was made
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pursuant to federal statute, would the advice from the
Secretary of State's Office be to produce the infor mation with
the birth dates?
A. It would depend on the particular information sou ght.
Q. And what would be the difference?
A. Well, not all information and documentation relat ed to the
entire election process is subject to the National Voter
Registration Act.
Q. Which documents do you believe are not subject to the
National Voter Registration Act?
A. There's quite a number of documents. You've ment ioned --
poll books are not subject to the National Voters R egistration
Act.
Q. Are poll books relevant to maintaining accurate v oter
rolls?
A. No.
Q. What is, in your opinion, a poll book?
A. According to law, a poll book is a list of those voters who
are eligible to vote in a particular election who a re all
active, on active status.
Q. And you do not believe that the -- that the activ e voter
registration list is subject to the NVRA?
A. That's two different things. I didn't say an act ive voter
registration list. We talked about the poll books, which
represents a list of active voters who are eligible to vote in
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a given precinct on election day. The voter roll i s something
different. The voter roll is a complete list of al l
Mississippi voters and all status categories.
Q. Would the voter roll include active voters?
A. Yes.
Q. Would the voter roll include any kind of designat ion of who
is an active voter and who is a suspense voter?
A. There is no such thing as a suspense voter. It w ould
indicate voters in different statuses. We have fiv e statuses:
active, inactive, purged, rejected and pending.
THE COURT: Would it do that with the designation?
A. Yes, ma'am.
THE COURT: In other words, by each name it would
reflect this person's active, the next person is in active, the
third person is suspended, or whatever?
A. It would indicate the status of each voter, yes, ma'am.
BY MR. NIXON:
Q. What is the difference between an active and an i nactive
voter?
A. An active voter is eligible to cast a ballot -- a regular
ballot in an election. An inactive voter is one wh o has been
moved to that status by virtue of documentation or information
received that indicates a change of address outside the county
or outside the state, pursuant to which they are se nt a
confirmation card pursuant to the NVRA at that time marked
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"inactive."
Q. Okay. So for the court's edification, is -- you would mail
a voter registration card to an individual. And th ey are not
allowed to be forwarded by law. Right?
A. Well, again, for clarification, we wouldn't mail anything.
Our counties administer elections. So our county e lection
commissioners would identify their voters, and the county
election commissioners would cause a confirmation c ard to be
sent, you're correct, by non-forwardable mail.
Q. Okay. And so when a -- and when a voter registra tion card
is then returned back to the county, then that pers on is moved
from active to inactive status?
A. Incorrect.
Q. Okay. Explain how that works.
A. When the confirmation card is sent, the voter's m oved from
an active to an inactive status. In the rare insta nce a voter
returns that confirmation card to the county electi on
commission completed, that voter is moved back to a n active
status and their registration is updated.
THE COURT: So when you send the card, just send a
card to anyone who's previously on the voter roll - - not you --
when the county sends it, the voter is deemed inact ive until
the card is received or something is received back?
A. When we have -- when the counties have informatio n that
indicate a change of address, a move outside the co unty or the
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state, so National Change of Address information, t he counties
will send the confirmation card, and at that time, yes, marks
the voter in an inactive status.
The card -- we would like for voters to complete th at card
and return it to the counties. And if the voter do es take that
action, the information from the card is put into t he State
Election Management System, and the voter's returne d to an
active status with updated information.
If that card is not returned being completed by the voter,
it's just returned to the county as unable to locat e, not
deliverable, that voter remains in an inactive stat us for the
next two federal general elections, after which tim e if they do
not vote, they can be removed or purged from the vo ter roll, or
in our case moved to a purged status.
BY MR. NIXON:
Q. Let's take the situation where a voter registrati on card is
mailed. It is returned to the county --
A. Did you say registration card?
Q. Well, a voter ID card. What is used in the State of
Mississippi to have -- the card that is mailed to t he voters?
A. When you register to vote? Is that what you're a sking?
Q. Yes.
A. When a person registers, they are sent a voter re gistration
card.
Q. What is the name of the card that we were talking -- we
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were just now talking about?
A. A confirmation card.
Q. Confirmation card. A confirmation card -- is a
confirmation card mailed to every voter each year?
A. No.
Q. Is it -- how often is a confirmation card mailed to a
voter?
A. Only when there is a trigger -- we refer to it as a trigger
under the National Voter Registration Act. So it's some
information, reliable information. I used the Nati onal Change
of Address database which we -- all states particip ate in.
When a county receives reliable information that a voter on its
roll has moved outside the county or outside the st ate, that
trigger prompts the county to send a confirmation c ard.
Q. You use a term National Change of Address databas e?
A. Yes, NCOA.
Q. Who maintains that?
A. I'm assuming it's the U.S. Post Office.
Q. Okay. Are birth dates provided on that database, or do you
know?
A. I don't know.
Q. Okay. All right. So when you -- when you find o ut that
somebody's moved, you send them a confirmation card . If -- if
they return it to the county, they're maintained on active. If
it's not returned, they're moved to inactive.
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A. They're moved to inactive status upon the sending of the
card.
Q. Okay. Now, if they show up and vote in person, a re they
allowed to vote?
A. Yes.
Q. Do they have to sign any kind of provisional ball ot?
A. If they're in inactive status, they vote by an af fidavit
ballot, which is a provisional ballot, yes.
Q. And is the affidavit ballot -- do they give their then
current address?
A. The affidavit ballot envelope asks for different types of
information that the voter may fill out, including old address
and new address.
Q. And when they show up to vote, do -- is that info rmation
maintained on the poll book?
A. No.
Q. Do they sign the poll book showing that they have voted?
A. No one signs the poll book.
Q. Is there any indicia on the poll book that a pers on voted?
A. No. Inactive voters, they are on the voter roll; they are
not in the poll book.
Q. Okay. Only active voters are in the poll book?
A. Correct.
Q. Okay. All right. And then the two other categor ies -- or
three other categories that you mentioned?
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A. Pending, purged and rejected.
Q. What is pending?
A. Pending is a status for a voter who submits a mai l-in voter
registration application. And by statute the clerk s are
afforded a certain amount of time to obtain additio nal
information should they not have received a complet e
application. And people are also put in a pending status to
ensure that the address provided with the registrat ion was the
correct address to allow for the time for their car d to be sent
to them, their registration card.
Q. Are pending voters listed in the poll books?
A. No.
Q. What's the next designation?
A. Purged.
Q. Purged. What does that mean?
A. Those are voters who are removed from the voter r oll.
They're placed in a purged status, but they're not ever removed
but are put in a purged status. It's for voters wh o should no
longer be eligible to vote by reason of death, adju dication of
incompetence, moved, voluntary requests.
Q. Felons?
A. Not all felons. Conviction of a disenfranchising crime in
the state of Mississippi.
THE COURT: I couldn't understand one word you said .
A. Conviction of a disenfranchising crime in the sta te of
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Mississippi.
THE COURT: Thank you.
BY MR. NIXON:
Q. Those voters are not included on the poll books e ither?
A. They're purged status.
Q. And then what's the last?
A. Rejected.
Q. And, obviously, those aren't on the poll book eit her.
A. No.
Q. But they are on the voter rolls?
A. Yes.
Q. Okay.
THE COURT: Can I just go back to the poll books fo r a
minute, if you don't mind. Tell us again, the poll books, what
exactly do they contain?
A. By statute the poll book will contain the name of the
voter, the address, the date of birth, the voter re gistration
number. And then it will have columns for each app licable
election. So with this past election, you had a co lumn for the
June 3rd primary and a column for the June 24 prima ry runoff.
And then there's a bar code at the far right.
THE COURT: And the poll books contain all active
voters? Do they contain --
A. Correct.
THE COURT: -- inactive?
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A. No.
THE COURT: And, obviously, they don't contain purg ed
voters or rejected voters.
A. They do not.
THE COURT: And what was the third category,
suspended?
A. Pending.
THE COURT: Pending. What's "pending" mean?
A. Pending is -- a simpler way to put it, those peop le who
have registered within the 30 days before the elect ion, too
soon.
THE COURT: Too recently.
A. Too recently to be able to vote in the next elect ion.
THE COURT: All right. And the poll books do not
contain any of those three categories of people?
A. Only active. Active voters only.
THE COURT: And what about the inactive? If an
inactive comes to vote, then what?
A. If an inactive voter comes to vote, their name is not in
the poll book. So they will be presented with a pa per ballot
and allowed to vote an affidavit or provisional bal lot, which
requires the completion of an affidavit ballot enve lope, voting
by paper, the ballot's folded, put in the envelope, sealed, and
then put in the ballot box to be counted and evalua ted after
the election by the election officials.
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THE COURT: And the election officials are county
employees?
A. I'm sorry?
THE COURT: Are the election officials to whom you
just referred county employees?
A. Election commissioners are elected county officia ls.
THE COURT: Okay. So what do they look at?
A. They will look at the -- at the voter roll as a w hole to
determine whether or not those voters should have b een on the
voter roll or on the poll book. And they will dete rmine if the
voter has moved within the county and they're still eligible.
That means they can still vote as long as they vote d in their
new precinct. They look at different -- different things,
given the reason -- there's other reasons to cast a n affidavit
ballot.
THE COURT: What about the affidavit? What does it
contain?
A. The affidavit itself is on the envelope. And all it asks
is for the name of the voter, their date of birth, the last
four of their Social, telephone numbers, old physic al address,
new physical address, old mailing address, new mail ing address,
which is all optional. And then they -- the affida vit -- they
have to state the reason why they believe they are being asked
to cast an affidavit ballot.
THE COURT: Why they believe they're being asked?
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A. Correct. And they sign it. A poll manager signs it. And
then the voter is given their ballot to vote and se al.
THE COURT: Okay. You may proceed.
MR. NIXON: Thank you.
BY MR. NIXON:
Q. In a situation where an active voter shows up to vote but
reports -- self-reports, "I've moved," what do you -- what
happens in that situation?
A. The poll worker will ascertain whether or not the ir new
residence address still entitles this voter to vote in the
precinct in which he or she has presented. If they need to go
to a different precinct, the voter will be sent to the
appropriate precinct for their residence.
Q. Okay. So let's assume that they've moved within the same
precinct. What happens?
A. They are allowed to cast a ballot in the voting m achine.
Q. Are they required to provide any information with regard to
their new address?
A. No.
Q. If they've moved to a different precinct, tell us what
happens then.
A. They'll present to their new precincts, and their name will
not be in that poll book. So they will be an affid avit voter.
They will vote by an affidavit ballot.
Q. The same that you just described to us?
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A. Yes.
THE COURT: New precinct, you're assuming in the sa me
county?
MR. NIXON: In the same county. That's my next
question.
BY MR. NIXON:
Q. What happens if they move to a different county?
A. They're certainly welcome to cast a ballot. No v oter is
ever turned away. But if they've moved outside of the county
and haven't updated their registration, their vote won't be
counted. But they will vote by an affidavit ballot .
Q. So if a voter who lived in county A moves to coun ty B and
shows back up in county A at the right precinct whe re he was in
county A and says, I'm on the active roll. I want to vote, but
I want you to know that I've moved to county B, what happens?
He's told to go to county B?
A. No. The poll worker will tell the voter that he or she is
not eligible to vote, given that he or she has move d. But if
that voter is insistent, they are provided an affid avit ballot
and they are allowed to vote by an affidavit ballot .
Q. Is the information then used -- from the affidavi t then
used to update the voter rolls?
A. Yes.
Q. Okay. So is it true to say that the poll books a re
relevant to maintaining accurate voter rolls?
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A. Not the poll books, no. The affidavit ballot env elopes,
yes, but not the poll books.
Q. Really the whole process.
A. I don't agree.
Q. If you don't vote for two federal election cycles , what
happens to your name? If an active voter chooses n ot to vote
for two federal election cycles, what happens to yo ur name on
the voter rolls?
A. Nothing.
Q. How many cycles do you go through not voting when you are
moved from active to inactive?
A. Your question is unclear. No one is ever moved f rom an
active status by virtue of inactivity. So it doesn 't matter if
you ever vote once you register. You'll stay activ e unless
some information or reliable documentation is provi ded which
indicates the voter's died, been convicted, adjudic ated
incompetent or moved.
Q. How old do you have to be to vote in Mississippi?
A. 18, unless you'll be 18 by the date of the genera l
election. Then 17-year-olds are able to vote.
Q. And what date are you allowed to vote absentee
automatically? What age?
A. It's the same age.
Q. No, by absent -- automatically allowed to vote ab sentee.
A. No one is allowed to vote automatically by absent ee in the
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state of Mississippi.
Q. So if you reach the age of 65, it doesn't automat ically
trigger the ability to vote by mail?
A. It entitles certain -- certain categories of abse ntee
voters may vote absentee by mail, and 65 is include d, but there
is no automatic entitlement to vote by an absentee ballot.
Q. Is a -- I may be -- we may be saying the same thi ng but a
different way, but I just want to make it clear. W hen you
reach the age of 65, may you -- may you, as a right of being 65
or older, vote by mail in Mississippi instead of in person?
THE COURT: Could I make a suggestion on rephrasing ?
If you're over -- or you're the age of 65 in Missis sippi, are
you eligible to request an absentee ballot, and wil l you get it
automatically upon request? I think that's the iss ue.
MR. NIXON: That's it.
THE COURT: I'm not sure.
MR. NIXON: That's exactly right.
BY MR. NIXON:
Q. Is that right?
A. Not quite.
THE COURT: Okay.
A. Mississippi has several different categories whic h enable a
voter to vote by an absentee ballot. Being 65 year s of age and
older is one category among many. Being 65 or olde r also
allows that voter to request and receive their abse ntee ballot
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by mail.
Q. I see. I see.
THE COURT: As opposed to a 64-year-old who might b e
eligible to vote absentee upon request but has to c ome in and
get it?
A. Yes.
THE COURT: Personally?
A. Correct. We -- we refer to it as in-person absen tee
voting, meaning they have to go to the circuit cler k's office
in the county of their residence and complete an ap plication.
And then upon completion of the application, they'r e provided a
ballot. And that's traditionally how absentee voti ng occurs
but for four categories of voters who may request a nd receive
absentee ballots by mail in addition to our UOCAVA voters,
which are -- it's U-O-C-A-V-A -- for the Uniformed and Overseas
Citizens Absentee Voting Act, which is a separate c ategory of
absentee voters.
BY MR. NIXON:
Q. Does Mississippi register voters both with a Miss issippi
registration form and a federal voter registration form?
A. We have a Mississippi registration form, and they 're on
a -- a mail-in registration application form is not required by
federal law.
Q. Okay. And the federal law, of course, has birth date on
it.
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A. Correct.
Q. And that is an issue clearly covered under the NV RA?
A. Yes.
Q. And that is a public record under the NVRA?
A. It is.
Q. So just to make things very clear, with regard to the
overseas voters who only use a federal application, if True the
Vote were to ask for the overseas voter application s with birth
dates, those are maintained by the State of Mississ ippi
Secretary of State's Office. Is that correct?
A. No.
Q. Those are maintained by who?
A. The individual county circuit clerk offices.
Q. Would a citizen who requested that information un der the
NVRA be able to obtain the overseas voter applicati ons with the
birth dates unredacted?
A. Yes.
THE COURT: What was the very last thing, under wha t?
MR. NIXON: Unredacted.
BY MR. NIXON:
Q. With regard to voter list maintenance, would whet her or not
someone appeared and voted be a reason to keep that person on a
voter registration list?
A. You'll need to rephrase your question.
Q. I may have asked it before, and I think I did. S o let me
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ask a different question. Under the NVRA, is it yo ur
understanding that you are required to keep all rec ords
concerning voter registration?
A. Yes.
Q. Would a poll book fall into a category that -- of all
documents that involve voter registration?
A. No.
Q. That's what your opinion is?
A. Correct.
Q. Okay. Are you familiar with the Help America Vot e Act?
A. Yes.
Q. Okay. It's a federal statute.
A. Yes.
Q. Does the Help America Vote Act dictate that the s tate and
not the counties are the repository of voter regist rations?
A. I would have to look.
Q. Okay. And you would defer to that act?
A. Yes.
Q. Okay. Now --
THE COURT: Mr. Nixon, is your last question based on
or does it imply a time frame?
MR. NIXON: I'm not sure I understand.
THE COURT: Well, is it possible -- and you might j ust
want to ask this -- if the state is the repository of voter
records after a certain point in time after an elec tion. I
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don't know the answer. If you do or you're interes ted, you may
ask. You don't have to.
MR. NIXON: No, no, no. I'll ask those questions.
And the last one is more of a legal technicality th at I think
is -- may --
THE COURT: If you don't care, I don't care. I
mean --
MR. NIXON: It's covered in our brief, and I do car e.
But to the extent that she says, I know what the law says, then
I'm not going to --
THE COURT: I misheard. I'm having a terrible time
hearing. Even though I can hear the words, I just -- I mean
hear the speaking, I'm having trouble because the s peech is so
fast. So I apologize if I'm sounding like I'm behi nd the
curve. Go ahead.
MR. NIXON: Okay.
BY MR. NIXON:
Q. Do you know whether or not the Help America Vote Act
requires that the State of Mississippi be the -- an d not the
counties be the repository of voter registrations?
A. You're being less detailed. Counties accept vote r
registration applications. They process them. HAV A
requires that we have a statewide voter roll which is
maintained at the state level.
THE COURT REPORTER: The what requires?
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THE WITNESS: HAVA, H-A-V-A, the Help America Vote
Act.
A. -- requires there be one centralized voter roll m aintained
by the state, which it is. It's the Statewide Elec tion
Management System. So to that end, the state is th e repository
for all voter roll information in that it is the ad ministrator
of the Statewide Election Management System. But r egistration,
by statute, is done at the county level with paper applications
retained by the counties and scanned into SEMS, S-E -M-S.
BY MR. NIXON:
Q. And SEMS stands for?
A. Again, the Statewide Election Management System.
Q. Okay. Let's clear up just a couple of things wit h regard
to the process. Who creates the voter rolls to be used in an
election?
A. Are you asking about the voter roll or the poll b ook?
Q. Well, let's just start at the big. Who has the v oter
rolls?
THE COURT: Can I make a suggestion? Tell us the
process of how someone would register and then -- y ou know,
where they go? We're not an over-65 person. We're just a
regular 30-year-old living in Padula County or what ever. Pick
one. Well, pick Yazoo County because they're not h ere.
They've elected not to show up, and they can't cont radict you.
Anyway, pick a county and tell us who does what, an d
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give us the technical name, to the extent there is one, under
state law or practice in Mississippi.
A. Mississippi allows for two types of registration for a
normal, average person, which is in person in the c ircuit
clerk's office or by a mail-in registration applica tion. Those
paper applications are sent to the circuit clerk of the county
of residence of the voter. That information is ent ered into
the Statewide Election Management System, including scanning of
the actual registration application. Once the info rmation is
put into SEMS, which is the statewide voter roll, a ll voters
from all 82 counties are in one central location.
THE COURT: Scanned?
A. Scanned registration applications. They will als o scan any
other documentation pertaining to that voter over t he course of
that voter's history. And that's -- that's voter r egistration.
BY MR. NIXON:
Q. What about the federal postcard application?
A. Military overseas can register to vote by the fed eral
postcard. Again, it's a paper application, or if i t's e-mailed
or faxed. It's retained by the circuit clerk of th at voter's
residence. That information, again, is entered int o SEMS. It
creates a voter record for that voter. Their infor mation is
scanned, the document's available, and they become a part of
the statewide voter roll.
Q. Do you know why the federal postcard application ballot
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requires -- is subject to open disclosures and the others are
not?
A. No.
Q. All right. Let's get back to the registration pr ocess.
A. Well, I never said others were not. You never as ked about
registration applications.
Q. Are registration applications subject to open rec ords under
the federal Voter Registration Act?
A. Everything -- everything these clerks' offices an d our
office has is subject to public disclosure. The is sue is what
may be redacted.
Q. Okay. All right. Well, we've already decided th at --
you've already disclosed that the federal postcard application,
which includes birth dates, is not subject to redac tion.
A. And neither are Mississippi state registration
applications.
Q. So the registration application, which includes b irth
dates, is not subject to birth date redaction?
A. It may include a birth date, yes.
Q. And it's not subject to a redaction?
A. Not under the NVRA.
Q. So if we can obtain the birth date application -- the voter
application which includes the voter's birth date, that
information is uploaded through SEMS and put on a v oter roll
and includes a voter's birth date, why is a person under the
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NVRA not entitled to the voter roll with the birth date
included?
A. There are no -- there have been no requests for t he voter
roll.
Q. And so in answer to my question, so we're very cl ear here,
if a request were made for the voter rolls for the state of
Mississippi, which includes birth dates, maintained by
Secretary of State's Office, the Secretary of State would
provide that information?
A. Not for the entire voter roll, no.
Q. Would it -- would it provide birth dates?
A. I'm not -- I don't understand your question.
Q. Would the voter roll that was requested of the Se cretary of
State's Office pursuant to the NVRA require -- woul d it include
birth dates?
A. No.
Q. Why not?
A. Because that is not necessarily subject to public
disclosure at -- it includes every voter ever regis tered in the
state of Mississippi. And pursuant to our own law, it's not
subject to disclosure.
Q. Okay. So that we're really clear here, if I ask for
someone's application, I would get a copy of their application
under the NVRA?
A. Yes.
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Q. And that application would include the birth date ?
A. It may. It may not.
Q. There is a space to be filled out by the voter wh ich has
birth date?
A. Yes.
Q. Does the Mississippi application also include a s pace for
Social Security number?
A. The last four digits.
Q. We all agree that Social Security information is protected
under a separate federal statute. Would you agree with me on
that?
A. I'm sorry. I didn't -- no. I didn't hear you.
Q. Do we agree -- do you and I agree that Social Sec urity
numbers are protected under a separate federal stat ute?
A. Yes.
Q. Okay. So if a person filled out the voter -- the voter
registration application with their birth date and not with
their last four digits of their Social and I asked to see that,
I could receive that under the -- under the NVRA wi th the birth
date information included?
A. Yes.
Q. For every person who's ever filled out an applica tion in
the state of Mississippi?
A. There's different facts and circumstances that ar e -- you
can't be that unilateral across the board.
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Q. I'm sorry. I didn't understand that. I can't be that --
A. In this situation where you mention an applicatio n -- there
are certain -- I don't know. I can't answer that q uestion.
Q. Okay. All right.
THE COURT: I do have a question, though. If the
request were for current active voters, if the requ est were for
the voter rolls -- roll -- is there one voter roll,
technically?
A. Uh-huh (indicating yes).
THE COURT: If the request was for one voter -- for a
copy of the voter roll showing current eligible vot ers, would
the State -- Secretary of State feel it necessary, because of
federal law, to turn over the voter's name, address , date of
birth and voter ID number, active voters only?
A. No. When we produce a voter roll, it excludes th e date of
birth but provides a VR, voter record number.
THE COURT: The voter record number is what?
A. It's their voter registration number. It's a uni que number
assigned to every voter.
THE COURT: That's what I thought. It's not that t hey
voted in a particular election. It's the registrat ion that a
person is assigned that's unique --
A. Correct.
THE COURT: -- as you just said. Okay. Does the
State take the position from where you -- as you pe rsonally
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understand it or in your official capacity understa nd it, that
turning over birth year would be protected even if birth date
and month were redacted? Or have you not considere d that?
A. It would be the entire field which is redacted. The system
was designed to exclude the protected information. So SEMS,
the Statewide Election Management System, will not produce that
report -- that voter roll with the date of birth at all.
THE COURT: Okay. Thank you.
MR. NIXON: That's all the questions I have. That' s
all the questions I have. Thank you.
CROSS-EXAMINATION
BY MR. PIZZETTA:
Q. Hello, Ms. Turner.
A. Hi.
Q. There was testimony about a couple of different t ypes of
documents. I want to keep them straight. Absentee ballot
envelopes, where are they right now?
A. They are sealed in their respective ballot boxes in every
circuit clerks' office.
Q. When were they placed into those sealed boxes?
A. When an absentee ballot is voted, it is immediate ly placed
into a sealed ballot box until election day, at whi ch time it
goes to the respective precinct for that voter.
The short answer is, they are always sealed in a se aled
ballot box from the time that they are cast until a period of
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time after the election.
Q. And they're -- is that state law? Or what requir es them to
be sealed and secured?
A. State law.
Q. Is that the same ballot box where -- are absentee ballots
located in that box?
A. Yes.
Q. And are affidavit ballots located in that box?
A. They will be deposited in that box throughout ele ction day.
THE COURT: Throughout election day?
A. Yes, ma'am.
THE COURT: Was your question about absentee ballot s
or actual ballots?
MR. PIZZETTA: Absentee ballots, your Honor.
THE COURT: So absentee ballots are placed in the
sealed ballot box?
A. Yes.
THE COURT: And they're not opened until when?
A. Until the polls close on election day at 7 p.m. At that
time the poll managers remove the absentee ballots, envelopes
and applications, to process to determine whether t hey may be
counted or rejected. So after --
THE COURT: Poll managers?
A. Poll workers.
THE COURT: Poll workers?
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A. Uh-huh (indicating yes).
THE COURT: And are they opened?
A. The majority of our counties use the TSX voting m achines.
So for 77 counties, the absentee ballots that are a ccepted,
they are not opened at the precinct. They are put back into a
sealed ballot box, taken back to the courthouse tha t night.
And there they have centralized scanners. And that 's when the
absentee ballots are actually opened at election ce ntral.
For five counties in Mississippi that use their own
precinct scanners, they do open the accepted absent ee ballots
at the poll -- or the precincts and scan them there .
THE COURT: Thank you.
BY MR. PIZZETTA:
Q. Let me see if I can help with an example. If a c itizen
comes in, hypothetical, on let's say July 7th and s ays, I would
like to inspect the absentee ballot envelopes, where is that
ballot -- where would that absentee ballot envelope be at that
time?
A. In the sealed ballot boxes.
Q. And it's sealed in order why? Why is it still se aled? The
election has happened a couple of days ago. Why is it still in
a sealed box?
A. The boxes will remain sealed for a period of time to cover
certain statutory examination period. There's a 12 -day
examination period where the candidates may examine the
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contents of every ballot box. And the ballots -- b allot boxes
actually remain sealed for so long as an election c ontest may
be filed so as to preserve the election materials i n their
state, in the state in which they were left post-el ection.
Q. Chain of custody issues and other such things?
A. Correct.
Q. So if someone comes in and asks for an absentee b allot on
July 7th, the answer they may get from a circuit cl erk as to
whether they can see it would be different than if they came
and asked for one maybe a month later or two months later after
the election contest has passed?
A. Yes.
THE COURT: Does this assume that the absentee ball ots
cannot affect the election in a particular county? I mean, how
could you not count the ballots?
A. No. They're -- they are counted. They are scann ed and
counted on election night. But then all election m aterial is
return to sealed ballot boxes after the counting ha s been
completed. And all the materials stay in those sea led ballot
boxes to preserve the integrity of the election unt il the
period of time has passed for a candidate to file a contest.
THE COURT: Would it be better said that the boxes are
resealed?
A. They are sealed -- it would be proper to say rese aled.
They are opened and resealed several times, but, ye s, they are
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resealed.
THE COURT: Because this testimony is indicating th at
the ballots that are filed by absentee vote -- sent in by
absentee voters are never looked at until sometime in the
future. And it's really inconsistent with what you said about
the scanning, which is my confusion.
So if I could try again to summarize, absentee ball ots
are opened on election night after the polls close, generally
at the courthouse, not at a precinct, but in a few precincts
they have their own scanners and they open those ab sentee
ballots. The absentee ballots are actually in an e nvelope? Is
that true?
A. It is.
THE COURT: And the envelope on the outside has a
signature demonstrating that the envelope is being submitted by
the authorized voter. Is that true?
A. It should have two signatures, the voter's signat ure and
either a witness or a notary's signature.
THE COURT: Okay. But the point is, then, that the
envelope with the ballot in it is opened. Of cours e, the box
has been unsealed and we've gotten these absentee b allots.
We've opened now the envelope which is holding a si ngle ballot.
That single ballot is scanned somewhere and then pu t back in
the envelope it came from?
A. No. It's kept separated from its envelope.
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THE COURT: Okay. And what happens to it, to the
ballot?
A. The ballot will be put together with all other pa per
ballots that may have been cast and counted at the election.
And then the paper ballots, the envelopes, the appl ications,
affidavit ballots, their envelopes, all the electio n materials
are put back into their respective ballot boxes.
THE COURT: Okay. So these paper ballots -- all
absentee ballots are paper. Correct?
A. Yes.
THE COURT: Okay. Absentee ballots are opened and
scanned with the other paper ballots from a particu lar
precinct. Correct?
A. Yes.
THE COURT: And what happened -- how do you associa te
a particular absentee ballot with an envelope that it came in?
A. You don't. The process is to separate the ballot from the
envelope once it's opened so as to ensure the voter 's privacy
in casting their ballot.
THE COURT: Right. It's secret ballot, as they say .
A. Correct.
THE COURT: Okay. So the envelopes are retained as
well but independent of the ballots?
A. Yes.
THE COURT: And the envelopes from a particular
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precinct and the ballots from that same precinct, p aper
ballots, are put back in the precinct box and resea led for
posterity?
A. Yes. Yes.
THE COURT: Okay. And that's the same process for
affidavit ballots, or are they in a separate box or what?
A. No. They have the same box. Affidavit ballots, part will
be processed the night of the election. Part will be processed
either the day after or two days after. And then w e have a
category of affidavit ballots now that are counted five
business days after the date of the election.
So at various times the ballot boxes will be broken open,
affidavits processed, those affidavits scanned, and then the
ballot boxes -- materials put back in and ballot bo xes
resealed. Those ballot boxes will be unsealed and resealed at
least once, if not two more times, after an electio n night.
THE COURT: And when they're opened, does someone h ave
to sign that they opened for chain of custody?
A. Yes.
THE COURT: And then sign that they've resealed?
A. There are log forms that require the numbers of t he seals
to be recorded and, again, to account for who is en tering that
box.
THE COURT: Okay.
A. And then resealing.
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THE COURT: Okay.
BY MR. PIZZETTA:
Q. And part of it -- and tell me about what candidat es then
have in this particular 12-day period. What are th ey doing
with these ballot boxes?
A. The candidates may do a ballot box examination, w hich they
would -- the circuit clerk who has custody of the b allot boxes
at that time, they will open the boxes and allow th e candidate
or his or her representative to examine all that is in the
ballot box, which would, of course, include absente e envelopes,
affidavit envelopes, applications for absentee. It would also
have the receipt book that is used at the polling p lace on
election day.
Q. As a general matter, what is the date -- when was the date
of the candidates' ballot box inspection in this el ection?
A. In this election both candidates, Senator Cochran and
Senator McDaniel, commenced their ballot box examin ations in
all 82 counties on July 7th.
Q. And that means they -- they showed up and looked through --
they were looking through the ballot boxes beginnin g July 7th?
A. Yes.
Q. And they only had how many days to complete that
inspection?
A. Those inspections must be completed within 12 day s from the
date the county certifies the election.
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Q. Does the Secretary of State's Office have possess ion,
custody or control of poll books?
A. No.
Q. Has the Secretary of State's office received any request to
produce poll books or other documents under the NVR A from
plaintiffs?
A. No.
Q. Has the Secretary of State's Office received any requests
whatsoever to produce documents to plaintiffs under state law?
A. Yes. True the Vote did provide us or mail to us a public
records request specifically made under Mississippi Public
Records Act for large volumes of information.
Q. But they didn't ask under NVRA from your office?
A. No. The letter is very specific. It was a reque st made
under our state law.
Q. All right. And I think I understood what you tes tified, to
shift -- to touch a gear for a moment. Inactive vo ters, are
they still registered voters?
A. Yes.
Q. And inactive voters can still cast ballots?
A. Yes.
THE COURT: But then are we into the paper ballot?
A. Yes.
BY MR. PIZZETTA:
Q. When a voter walks in and they're inactive, which means
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they're not in the poll book, and they cast an affi davit
ballot, what document is it then that an election o fficial
would go to look to see if they were a registered v oter?
A. The poll workers in the precincts are usually pro vided
what's called a master list in their supply box, an d a master
list is actually a printout of the voter roll. So they would
have access to be able to determine if a voter shou ld be voting
in a different precinct or if they have been moved to a
different precinct.
Q. So does an election worker ever look to the poll book to
see whether or not someone is an inactive voter eli gible to
cast an affidavit ballot?
A. No.
MR. PIZZETTA: Your Honor, may we have these marked ?
I believe it is D-5 and D-6.
THE COURT: Yes.
MR. PIZZETTA: All right. And to be -- so we're
clear, why don't we have the document that's marked "Democratic
Poll Book" marked as D-5 --
THE COURT: Okay.
MR. PIZZETTA: -- and "Republican Poll Book," D-6.
THE COURT: Okay. It's done. Any objection to the se
documents?
MR. NIXON: Yes, Judge, I do. There has been
redactions made. So, I mean, these aren't -- I bel ieve they're
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redactions, unless they're actually --
THE COURT: Well, there are black marks. I see you r
point.
MR. NIXON: Yes. So I don't know what's been
redacted.
THE COURT: Well, let's find out what the offer is.
What's the offer?
MR. PIZZETTA: We have -- just to get the court
finally to see what a poll book is, and I think Ms. Turner will
be able to explain what it is that is redacted unde rneath. I
think it will --
THE COURT: Okay. I'm going to overrule your
objection.
(EXHIBITS D-5 AND D-6 MARKED)
BY MR. PIZZETTA:
Q. Ms. Turner, looking at D-5, can you identify that for us?
Do you see at the top what county it comes from the re?
A. Yes, I do. It's -- these are poll books generate d by
Jefferson Davis County. One is the Republican poll book and
the other is the Democratic poll book.
Q. You've seen poll books before.
A. Yes.
Q. You've seen unredacted poll books before.
A. Yes.
Q. Tell the court what it is that is redacted there on D-5 and
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D-6.
A. The date of birth.
Q. Okay. So when you were testifying a moment ago a bout what
plaintiffs would be entitled to under even state la w, is this
an example of -- if they pay the per-copy charge, i s this an
example of what is permissible to provide to plaint iffs under
state law?
A. It is.
Q. Just so the --
THE COURT: Wait a minute. Is the -- under state l aw,
is the poll book on the date of the election redact ed?
MR. PIZZETTA: Your Honor, I'm sorry. I don't
understand your question.
THE COURT: You've given me a redacted version of t he
poll book from Jeff Davis County, a sample, obvious ly. Is this
the way it was presented to the poll workers, or we re the poll
workers seeing the unredacted version of this docum ent?
BY MR. PIZZETTA:
Q. Ms. Turner, can you answer that?
A. The poll workers would have seen unredacted versi ons.
THE COURT: I see. Okay.
MR. SANDERS: Your Honor, those redactions that wer e
made were made this morning.
THE COURT: That's fine. Thank you.
MR. PIZZETTA: No originals were redacted.
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THE COURT: That's fine.
BY MR. PIZZETTA:
Q. Noticing, though, D-5 and D-6, the first name is the same
on both of them. Is that right?
A. Right. They're identical.
Q. All right. Why is that?
A. Well, because in the state of Mississippi, we don 't
register by party affiliation. So when you present to your
polling place on an election day, the voter may go to the
Republican table or the Democratic table. So each poll book is
identical since we don't have specific lists of Rep ublican
voters and specific lists of Democratic voters.
THE COURT: Is that called an open primary?
A. Yes, it is, your Honor.
BY MR. PIZZETTA:
Q. When I look at D-5 and it's marked "voted" next t o one of
the names, who writes that term in?
A. The poll worker. The check-in poll worker.
Q. So looking at D-5 and D-6, if you wanted to deter mine
whether Mr. Allison voted in the Democratic primary or the
Republican primary on June 3rd, can you tell by loo king at that
poll book?
A. You can.
Q. All right.
MR. PIZZETTA: Your Honor, no further questions.
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THE COURT: Anything further, Mr. Nixon?
MR. NIXON: Just a few questions.
MR. SANDERS: Your Honor?
THE COURT: Oh, I apologize. I really do. I'm so
sorry.
MR. SANDERS: I have cross just very briefly.
CROSS-EXAMINATION
BY MR. SANDERS:
Q. Ms. Turner, my name is Bob Sanders.
THE COURT: Do you want to offer that as an exhibit ?
MR. SANDERS: We do want to offer it.
THE COURT: You want it marked?
MR. SANDERS: Yes, ma'am.
THE COURT: So this is Defendant's Exhibit 7.
(EXHIBIT D-7 MARKED)
BY MR. SANDERS:
Q. Ms. Turner, I'm Bob Sanders, representing the Jef f Davis
Election Commission. Can you tell us what a VR-28 report is?
A. It's a representation of the voters who voted in any given
election.
Q. All right. And I've handed you what's been marke d as
Exhibit 7, and I'll represent to you -- and you can see on the
first page it appears to be a VR-28 report from the June 3rd,
2014, election. Do you see that?
A. Yes.
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Q. All right. And the next page is the first page o f a VR-28
report for the runoff election on June the 24th. D o you see
that?
A. I do.
Q. All right. Can you explain to Judge Atlas what t he
different columns are here that are represented on this VR-28?
A. Sure. The first column is the voter ID, which is the
voter's unique registration voter number. Then you have the
voter name, their address, city, the particular pre cinct in
which the voter would have voted in this election, the date the
voter registered and the party primary in which the voter voted
on each election day.
Q. All right. Now, this VR-28 for Jeff Davis County , these
two reports for the primary and the runoff, they wo uld be
several hundred pages long. So I didn't bring that . But you
can -- you'll have the name of each person who vote d in each
primary, and it will show whether they voted in the Democratic
or the Republican primary. Is that correct?
A. Yes.
Q. And if you had someone who had the same name, two John
Jones, one voted in the Democratic primary and then the
Republican runoff, you would be able to distinguish between
those two John Jones by the unique voter ID number. Is that
correct?
A. You would.
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Q. All right. So so far as that issue is concerned, the
unique voter identification number is a proxy for t he birth
date for that purpose. Is that right?
A. Yes, sir.
Q. All right.
MR. SANDERS: Your Honor, I don't have any more
questions, but I wanted the court to have an unders tanding
of -- in our response to the TRO, we told the court that we
have sent all of this information to the plaintiffs , and I just
wanted the court to see what it is.
THE COURT: Okay. So you're saying you've already
provided --
MR. SANDERS: Yes, your Honor.
THE COURT: -- the full list --
MR. SANDERS: Yes, ma'am, and it's a couple --
THE COURT: -- of the voter -- the unofficial votin g
list to the plaintiff.
MR. SANDERS: For the primary and the runoffs. And
it's 2- or 300 pages long. We sent it to them in a n e-mail
prior to the time we filed our response to the TRO. And,
frankly, I got this from the circuit clerk, not fro m the
election commission. But he just cooperated with m e on -- to
that extent.
THE COURT: Why is it called unofficial?
A. It's called unofficial because this is a report t hat's an
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interim step before vote history is posted to indiv idual
voters' voter record in the statewide system.
This report is generated from what we call processi ng the
poll books, which means the counties will click the bar codes
of those voters who voted, and it puts that informa tion into a
table which holds the information which generates t his report.
But once the election is closed in SEMS, that infor mation
migrates out to the individual voter records.
THE COURT: Okay. But it's -- it's unofficial in t hat
it's not yet incorporated into the formal voter rec ords, but it
is reliable, question mark, because it is coming st raight from
the precincts or counties with the bar codes and, t herefore,
the voter ID numbers?
A. It is reliable in that it is a reflection of thos e voters
who voted as marked on the poll books.
THE COURT: Okay.
MR. SANDERS: That's all I have. Thank you, your
Honor.
THE COURT: Any other defense questions? No?
Mr. Nixon.
MR. NIXON: Just a couple of follow-up. Thank you.
REDIRECT EXAMINATION
BY MR. NIXON:
Q. Okay. If you could look at D-5, please. How do we know
that Mr. James Allison voted?
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A. I know that Mr. James Allison voted because it is written
"voted" in the June 3rd, 2014, election column next to
Mr. Allison's name in the Democratic poll book.
Q. Who would have written that down? And I don't me an the
name of a person but the position of the person.
A. Poll worker.
Q. And is a poll worker an employee of the State of
Mississippi?
A. A poll worker is compensated by the county for hi s or her
service on election day.
Q. Are they designated by parties to work in specifi c polls?
A. It depends on who's conducting that particular el ection.
Q. In the Democratic primary are they Democratic pri mary --
are they Democratic Party affiliates?
A. They are not affiliates of the state party. If t he county
Democratic Executive Committee actually conducted t hat
election, they would have been chosen by that execu tive
committee. But state law allows county executive c ommittees to
contract with election commissions to conduct the e lection. So
unless we had our list here of who conducted which county
election, I wouldn't be able to tell you for certai n.
Q. Okay. Let's talk about chain of custody of D-5.
A. Uh-huh (indicating yes).
Q. D-5 and D-6 are identical because they are poll b ooks.
It's -- and each party gets an identical poll book. Is that
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right?
A. Each precinct receives a poll book for the Republ ican and
Democratic table.
Q. Who creates the poll book to give to that precinc t?
A. The poll book is generated from the Statewide Ele ction
Management System by the circuit clerks.
Q. Does the Secretary of State have access to the St atewide
Election Management System?
A. Yes.
Q. If the Secretary of State chose, could the Secret ary of
State create the same poll book?
A. Yes.
Q. Okay. So in this instance of D-5 and D-6, they'r e created
by the county. Circuit clerk?
A. Yes.
Q. And then they're delivered to each party?
A. No. They're placed -- there is a ballot box and a supply
box for every precinct in every county in the state . The poll
books are placed in the supply box for the particul ar precinct
in which it represents.
Q. How does it get to the precinct?
A. It is packed in the supply box by the election -- the
officials in charge of the election.
Q. And who are those officials?
A. Again, it's county election commissions for gener al and
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special elections, and it is county executive commi ttees for
primary elections unless they have contracted other wise.
Q. Okay. Some counties don't have a Republican Part y, and so
the state party would then contract with the county election
commission to run the Republican primary in that pa rticular
county?
A. There's a statutory provision which makes -- that allows,
yes, a committee to contract for the election commi ssioners to
take that over.
Q. Okay. So now we've got the poll books at the pre cinct.
And the Democrats are at one table and the Republic ans are at
another table. Is that right?
A. Yes.
Q. So we're having a primary and there are either co mmission,
county election commission people, or party people at each of
the two tables. Is that right?
A. The poll workers, yes.
Q. And they all have access to birth dates?
A. Yes.
Q. Okay. Why?
A. In limited instances, they may make reference to a date of
birth in order to assist them in checking the corre ct person in
or in verifying a photo ID.
Q. The person sitting at the table, not the voter, i ndicates
"voted."
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A. By statute, the poll worker writes "voted."
Q. Okay. At the end of the night, the polls close. What
happens to the poll books?
THE COURT: What happens to what?
MR. NIXON: The poll books. These (indicating).
A. They are put back into their supply box, and they are
resealed and sent back to the courthouse where the election
materials will come under the direction of the circ uit clerk.
BY MR. NIXON:
Q. Not the election commission.
A. It's a joint responsibility. If they are still u tilizing
certain materials to count and canvass the vote, th en it would
be the executive committees. If they are complete, then it
would be the circuit clerk.
Q. Who counts the votes when they're back in the cir cuit
clerk's possession?
A. What? The poll books aren't used to count the vo tes.
Q. Okay.
A. And we -- you would primarily utilize voting mach ines,
which means the vast majority of our vote totals ar e downloaded
onto cards or zip drives and then downloaded into t wo different
computer systems.
THE COURT: What drives?
BY MR. NIXON:
Q. So election night these are back in the circuit c lerk's
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possession or -- and/or the possession of the elect ion --
county election commission. And then what happens to them?
A. They stay sealed in a supply box in the circuit c lerk's
office for as long as the ballot boxes remain there as well.
Q. And then when the ballot box is -- so now we've h ad an
election that's been certified. So what happens to the poll
books then?
A. We still haven't gone past the period of time wit hin which
a candidate may file an election contest. Everythi ng stays as
it is until that period passes.
Q. So in relation to the Republican primary runoff f or United
States Senate, the challenger, Mr. McDaniel, may st ill file an
election contest?
A. He may, yes.
Q. If the time period passes where he doesn't file o r the
election contest is terminated, how much longer are these poll
books kept?
A. Well, they are kept for at least 22 months, since it's a
federal election. And they will be packed, sealed and put into
a vault or some other location.
Q. The federal law requires these be kept unredacted for 22
months?
A. They keep all their election materials by state l aw and
federal law for a period of time. Yes.
Q. Are these poll books, because it's a federal elec tion,
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subject to federal retention requirements?
A. I would have to look at that.
Q. Okay. You indicated that there -- that was the c ase. I
just want to make sure that I understood that speci fically.
A. Traditionally, the clerks and election commission officials
keep their materials for 22 months, all election ma terials,
regardless of what the federal law may say.
Q. Is the fact in this case that Mr. Allison voted i n the
Democratic primary noted in the State's SEMS system ?
A. If the county has processed their poll book and c losed
their election, then, yes, it is available on the v oter roll.
But if they are -- it would depend where they were in their
process.
Q. So the Secretary of State now has possession of w ho voted
in the Republican primary runoff on June 24th in th e SEMS
system?
A. We may. Yes.
Q. And you may produce that by simply running a comp uter
program and putting it on a disk. Right?
A. It -- the information becomes part of the voter r oll. So
it ends up being a request for a voter roll with vo te history.
Q. Just one last clear-up issue. Overseas or milita ry votes,
do they -- do they have more than one ballot in an envelope, or
do they come in two different envelopes?
THE COURT: What does that mean?
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MR. NIXON: The runoff is done within three weeks o f
the primary. And so the military voters or oversea s voters are
sent a primary, and then they're sent a second ball ot that
says, Assume there's a runoff, who would you vote for in the
runoff? And so I want to know --
THE COURT: Even though they don't know who's in th e
runoff?
MR. NIXON: You don't even know who's in the runoff .
But assuming there's a runoff, who would you vote f or? So --
THE COURT: Is that done?
A. It's required by UOCAVA for us to meet the 45-day deadline
to provide a ranked-choice ballot to them at the sa me time as
their primary ballot.
THE COURT: Ranked choice plus the primary. So it is
two ballots?
A. It's two ballots and they are returned. If they are being
returned by mail, they come back in two envelopes.
Predominantly, those ballots are returned by e-mail , and they
are placed into two separate envelopes by the clerk 's office.
BY MR. NIXON:
Q. On election day -- I just want to make sure I und erstand
this perfectly. On election day the absentee ballo ts are
delivered to the respective precincts. Is that cor rect?
A. The absentee ballots in their envelopes with thei r
applications are put into the right precinct ballot box. So
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where that voter lives, his or her precinct, if he was voting
in person, that's where his or her absentee ballot will go.
And it goes into the ballot box with everything els e to the
precinct.
Q. How do they decide which party it goes to? Goes to the
Republican Party or the Democratic Party? How is t hat decision
made?
A. The voter has to tell their decision at the time they are
voting the absentee ballot because the ballots are different.
Q. Then the absentee ballot application and the enve lope, are
they put together and then sent to the respective p recincts?
A. The absentee ballot is in its envelope, and the s ealed
absentee ballot in its envelope is usually paper-cl ipped to the
absentee ballot application.
Q. And they physically are in the possession of the party
primary workers on election day?
A. I don't understand your question.
Q. Are they? Are they then -- are the primary -- ar e the
absentee ballots sealed in the envelope with the ap plication,
then physically delivered to the party primary work ers who are
working the poll?
A. Those materials are in the ballot box with everyt hing else,
with the memory cards for the machines, with the bl ank paper
ballots for curbside voters. They're in the ballot box that's
sealed and sent to every precinct. And once in the precinct,
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they are in the possession of the poll workers for each
respective election.
Q. When are they opened?
A. After the polls close.
THE COURT: We just went through that. "They" bein g,
frankly, a vague term. I'm assuming you're asking are the
ballots, and I went through that one. The boxes ar e presumably
opened when the ballot -- when the precinct worker -- the boxes
with the supplies have to be opened at the beginnin g of the
voting day. Right? Or early.
A. Certainly. It -- it depends what they have packe d in which
box. But if blank paper ballots have been packed i n the ballot
boxes, they will break the seal, pull out what they need,
reseal the ballot box. As you pointed out, at the end of the
day they would break the seal. They pull out the a bsentees.
They count them. They put them back. They reseal it.
BY MR. NIXON:
Q. You say "they." Who's "they"? Who's counting th em?
A. Poll workers.
MR. NIXON: That's all I have. Thank you, Judge.
THE COURT: Anybody else, defense?
MR. SANDERS: No redirect.
THE COURT: No? Okay. Thank you very much. We al l
learned a lot. Before I let you off the stand, may I -- ma'am,
is there any other term that we've heard about toda y that you
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think maybe you should have been asked about?
A. One thing that --
THE COURT: You better get back on the stand. I ha te
to do that to you, but...
(COMPLIED WITH REQUEST)
THE COURT: I hate to let you go because you know a
lot, and, frankly, you're filling in the gaps of ou r knowledge.
Go ahead.
A. The one thing I did mention to Mr. Pizzetta earli er is some
confusion about signing the poll books. And I just want to be
clear that the voter does not sign the poll book at all.
There's a separate book for voter signature, and it 's called a
receipt book.
THE COURT: Okay.
A. And that's all -- that's all it is.
THE COURT: Other than the receipt book, what other
information is --
A. That is all it is. It's a sign-in sheet. But I did want
to just clarify that the voter does not sign the po ll book. By
law, the only thing that is written in a poll book is the word
"voted" by the poll worker.
THE COURT: Is what?
A. Is the word "voted" by the poll worker in the app ropriate
election column.
THE COURT: By the Democratic --
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A. By the poll workers. So for whichever party prim ary a poll
worker is working for, they're the only ones that w ould write
the word "voted" in the poll book.
THE COURT: And the lists -- in most counties,
typically, is there more than one poll worker signi ng in voters
on a given day?
A. It depends, of course, on the size of the precinc ts in the
counties. But, yes, we do see our bigger precincts with poll
books that are split alphabetically, A through L, M through Z.
So --
THE COURT: That anticipated my question. No one - -
no two poll workers, then, have the same list for t he
Democratic side or the Republican side? In other w ords, I know
the list in its total is the same. It goes to the Republican
table and the Democratic table. But once it gets t o the table
of a particular party, is there one list?
A. Yes.
THE COURT: And then it's broken into segments,
depending on the number of poll workers and perceiv ed need for
different people to check in?
A. It definitely may be broken into sections, yes.
THE COURT: Okay. And then at the end of the polli ng
day, the three or X number of sections are collated and
combined back to the full poll list?
A. It would depend how the election officials prepar ed for
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that election. They may have broken -- broken down the one
poll book already into two binders.
THE COURT: Oh, because it's so big. Okay. I get
you.
A. Right. So they traditionally break it out ahead of time
and put them in folders or binders for ease of use.
THE COURT: Okay. But the point is that at the end of
the polling day, those poll books are collected and put back in
the supply box?
A. Yes, ma'am.
THE COURT: And then they go to the county courthou se
clerk?
A. Uh-huh (indicating yes).
THE COURT: And they are held in -- other sealed --
part of the sealed --
A. The poll books usually are not kept sealed, as th ey do
often receive public records requests for the poll books. So
they are kept outside of the sealed box.
THE COURT: Okay.
A. But they remain with the supplies and the electio n
materials.
THE COURT: Okay. And when a public information
request comes, is that under state law or federal l aw?
A. It is presumably always under state law.
THE COURT: And in that case you redact information
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required to be redacted under state law, such as da te of birth?
A. Just the date of birth.
THE COURT: Just the date of birth. Okay. We've
covered voter registration applications. Are those exactly
what they appear to be? In other words, a voter fi lls out an
application to register to vote?
A. Yes.
THE COURT: In writing, they put in a lot of -- all
the personal information that --
A. They -- they do put some personal information, su ch as the
last four of their Social, their date of birth, the ir name,
their address, their driver's license number. And then there's
a block that requires them to, under penalty of per jury, attest
to the fact they have not been convicted of any of the
disenfranchising crimes.
THE COURT: And then voter rolls you've talked abou t.
Voter poll books you've talked about. Federal post card
applications you've mentioned. Who keeps those? I think you
said it, but I don't --
A. They're -- they're kept -- they have -- they can have two
purposes. If they were -- if a federal postcard wa s sent for
registration purposes, it's, of course, kept as a r egistration
application, but we usually see it as a simultaneou s request as
registration application and absentee ballot reques t.
So it's scanned into SEMS, but it still stays with the
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absentee ballot in its envelope for processing.
THE COURT: I've not seen one of those, but can the
defense supply us with a copy of that form or an ex emplar?
A. There's a blank form online.
THE COURT: Okay. So that will be easy. I'm not
supposed to go online to search this out.
MR. PIZZETTA: We'll provide it, your Honor.
THE COURT: Thank you. Okay. Then the absentee
voting envelopes, those are the envelopes that the absentee
voter ballots are received in? Sent in?
A. They're put in. The absentee ballots are put in an
envelope, yes.
THE COURT: Oh, to go back -- to go out to the vote r,
the requester?
A. Either for it to be secured before it goes to the precinct;
or if they're mailing it back, it could be a mailed envelope as
well.
THE COURT: Okay. But the point is, the voter does n't
go to their file cabinet and pull out an envelope. It's
something supplied by the county?
A. Correct.
THE COURT: Sent out originally or provided by the
county and then returned by the voter. Correct?
A. Right.
THE COURT: Okay. And that's a term of art, and I
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could use a sample of that.
A. Those vary by county, your Honor. Every county i s
responsible for its own absentee ballot envelopes. And you'll
see at least three different variations in probably every
county.
THE COURT: Oh, great. Okay. Is there a minimum
amount of information required?
A. There's the statutory information, which is the v oter's
signature with the oath and the witness and the vot er
assistance. And they all comply with statute. You just see so
many different forms. And we can get you copies, b ut you just
would need to realize that it's going to change by county.
THE COURT: I understand. I don't really want all the
variations, but maybe two or three that are typical that
have -- that are easy to read.
A. Okay.
THE COURT: The absentee ballots, I'd like a sample of
that.
A. It's just a scannable ballot. We can download on e for you,
but it's the same blank ballot that's used on elect ion day for
emergency purposes as well.
THE COURT: That's fine. That's fine. That will b e
helpful. The record needs it. Remember, I'm not a
Mississippian, but, more importantly, the record ne eds it. I
think I've got the -- I'm not sure I have voter rol ls.
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A. You do not have a voter roll.
THE COURT: So we need a copy of that. Just a page .
Redacted is fine. We've had testimony about it. I know what
it is, but I'd like a sample. Okay. Anybody have any other
samples?
MR. WALLACE: One technical question, your Honor.
CROSS-EXAMINATION
BY MR. WALLACE:
Q. You mentioned that you keep -- or that the county clerks
keep certain documents for 22 months. Do you know what federal
statute requires that?
A. Not off the top of my head.
Q. Okay. You don't know whether it's the Voter Regi stration
Act or some other statute?
A. I'd have to look and double check.
Q. Thank you.
MR. WALLACE: Thank you, your Honor.
THE COURT: Okay. We will ask you supply that.
MR. NIXON: I have one short follow-up, if I may.
THE COURT: Okay.
FURTHER DIRECT EXAMINATION
BY MR. NIXON:
Q. We really didn't talk about a runoff. We talked about the
primary and each of these (indicating) stamped. In the runoff
do they -- do the parties then switch books -- the poll books
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so that they know who voted in the other political party's
primary?
A. That is not the recommended or trained proper pro cedure.
Q. What is the recommended or trained proper procedu re?
A. What has been trained or taught is to actually pr int a
VR-28 report which lists all particular voters who voted in
that election and to provide that list to the poll workers.
Q. Who recommends creating the VR-28?
A. Our office trains the election commissioners and executive
committees, and then they pass it along to their po ll workers.
Q. Okay. So you instruct the counties to do that. Do the
counties -- are they required by Mississippi statut e to do
that?
A. No. There is no procedure set by statute.
Q. Okay. Some counties may create a VR-28 and some counties
just may switch poll books?
A. They may.
THE COURT: Switch what?
MR. NIXON: They switch the books. The Democrats
voted here and the Republicans voted here, on the r ight and the
left, during the primary. So in order to know who voted in the
other person's primary, the parties switch books. So when you
vote in the Republican Party primary runoff --
THE COURT: Oh, the Republicans can check --
MR. NIXON: -- you're looking at the Democrat polli ng
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book to see if you voted in the Democrat Party.
THE COURT: What's wrong with doing that?
MR. NIXON: It's -- I don't know. I just was
asking --
THE COURT: Sounds like a great idea.
MR. NIXON: Yeah, I thought so too. It's just -- s ome
counties do it. I just wanted to make sure we unde rstood the
process.
THE COURT: Okay. But I think your point is that
there's no new polling record or anything.
A. There's no new poll book run. And we only had a Democratic
runoff in a few counties, so some Republicans were -- had the
benefit of the Democratic poll book because it wasn 't in use.
THE COURT: Thank you.
MR. NIXON: Thank you.
THE COURT: Anything else? You are finally --
MR. SLAY: One.
THE COURT: Oh, oh, oh.
MR. SLAY: And this may be totally off base.
CROSS-EXAMINATION
BY MR. SLAY:
Q. Kim, Craig Slay, Rankin County. We've talked.
A. Yeah. Hey, Craig.
Q. Good to see you. What is your understanding of - - under
Mississippi law, if you know, what is the -- what i s the
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person, office, entity or otherwise that is respons ible for
being the repository, the holder, the keeper of ele ction
materials, and my specific question is the poll boo ks, since
that is the -- seems to be the issue before us? Wh o, by
statute, is defined as the person responsible for, ultimately,
the poll book?
A. It's going to be the circuit clerk.
Q. The circuit clerk. Thank you.
THE COURT: Anybody else? Thank you very, very muc h.
Appreciate your information. Mr. Nixon, I know I p romised
lunch at about 1, and it is about 1, but I was wond ering if you
had a short witness.
MR. NIXON: We do. I think we'd like to call Phil
Harding.
THE COURT: Okay. Thank you. Let's do that.
MR. HOGUE: Your Honor, I'm Eades Hogue.
THE COURT: Okay. You're going to do the questioni ng?
MR. HOGUE: If you don't mind.
THE COURT: No. It's fine.
MR. HOGUE: I'll try to be fast.
THE COURT: Okay.
MR. HOGUE: I do have a drawl, but I'll --
THE COURT: Your drawl is okay.
MR. HOGUE: All right.
THE COURT: You're in good company here, I can tell .
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Sir, would you state your name? No, first stand up because I'm
going to swear you in.
(WITNESS SWORN)
THE COURT: Would you please be seated, pull yourse lf
close to the mic, and then state and spell your who le name for
the record.
THE WITNESS: Okay. My name is Phillip Clair Hardi ng,
III. That's P-H-I-L-L-I-P, middle name, C-L-A-I-R, last name,
H-A-R-D-I-N-G.
THE COURT: All right. Thank you. You may proceed .
PHILLIP C. HARDING,
having first been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. HOGUE:
Q. All right. Mr. Harding, where do you reside?
A. I reside in Biloxi, Mississippi.
Q. Would you tell the court your occupation.
A. I'm a retired Air Force officer.
Q. All right. And briefly tell his Honor the nature of your
service.
A. I served 30 years in the U.S. Air Force, retiring as a full
colonel. I began my career as a nuclear missile la unch officer
and then proceeded later on in my career to serve a s a
logistics readiness officer.
During that time I commanded two separate squadrons , both
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in Korea, was a deputy group commander and finished my career
at Keesler Air Force Base, having spent my last yea r on active
duty deployed to Iraq.
Q. Okay. Now, what county in Mississippi do you pre sently
reside?
A. Harrison County, sir.
Q. And are you a registered Mississippi voter?
A. Yes, I am.
Q. Approximately when did you register to vote here?
A. I registered end of April, beginning of May.
Q. Of what year, sir?
A. Of 2014.
Q. All right. Now, calling your attention to the Re publican
primary and primary runoff elections, did you have an occasion
to volunteer in coordinating or operating a part of that
election process?
A. Yes, I did.
MR. SANDERS: Your Honor, if he's going to testify
about what happened in Harrison County, we object. Harrison
County is not one of the nine county defendants her e and,
frankly, has no relevance to this proceeding.
THE COURT: Okay. Where are all the microphones on
the defense side? Let's put it in the middle. Oka y. But I
think we did hear you. So what's your answer to th at?
MR. HOGUE: Well, my answer to that is, we are goin g
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to demonstrate the destruction of some absentee bal lot
materials.
THE COURT: It's not relevant, since no one from
Harrison County was here, and I haven't made a ruli ng on that,
and you didn't sue them in the first place. I don' t understand
why that is relevant.
MR. HOGUE: Well, it would be relevant to show that
there's a question as to the validity of the electi on. What
this man is going to testify to, ma'am, is about ob serving the
destruction of absentee ballot materials.
THE COURT: When we get to that part of the case, i f
we get there and we need a hearing, I welcome this testimony.
Also, when you sue Harrison County for something th at they have
done that you believe is illegal, I will welcome th e testimony.
But right now, you have sued eight county -- nine
county officers and the State and the Republican Pa rty, and we
have a lot of people here that want to be heard on issues that
involve the National Voter Registration Act. This alleged
destruction of something is not part of that case. Objection
sustained. Witness may not testify. I'm sorry.
MR. HOGUE: Well, I'm very sorry, too. I would add
one thing, your Honor, and I'm going to sit down. He's also
prepared to testify and tell you about additional i nspection of
Harrison County records that the circuit clerk's of fice where
he --
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THE COURT: If you want to lay --
MR. HOGUE: -- where he found that missing --
THE COURT: Excuse me, sir. When I'm speaking, you
are not.
MR. HOGUE: Thank you.
THE COURT: If you would like to lay a foundation f or
that line of questioning, you're welcome to do that .
MR. HOGUE: All right.
BY MR. HOGUE:
Q. Now, following the actual primary runoff election , did you
have an occasion to go back to the Harrison County Circuit
Clerk's office for the purpose of trying to review materials
involving absentee votes?
A. Yes, I did.
Q. All right. Tell Her Honor what you did.
MR. SANDERS: Your Honor, we have the same objectio n,
relevancy.
THE COURT: No, I'm going to hear this one.
A. Yes. I was -- was working to review the election materials
as a certified -- or a credentialed volunteer for t he McDaniel
campaign. We requested the absentee ballot materia ls, the
envelopes and the applications. They were initiall y not
provided.
We asked -- asked a second time for them. A portio n of
those materials were provided, involving about 20 o f the
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precincts out of 60 in Harrison County. We invento ried those
and found that there were still approximately 40 co unties -- or
40 precincts' worth of materials that were missing, asked again
and were provided another approximately 20 precinct s --
THE COURT: What day did you do that?
A. What's that?
THE COURT: What day did you do this --
A. This is beginning the 7th of July through the -- through
last Friday, the 18th.
THE COURT: 7th through the 18th of July?
A. Yes. Yes. We initially -- initially went to ask for these
on the 7th. The first -- first increment --
THE COURT: Did you go to every precinct and ask or
how did you --
A. No, we asked the circuit clerk.
THE COURT: Okay.
A. The circuit clerk went to the election commission and found
a number of orange absentee ballot bags with materi als, and
some empty, brought them over. That was the first increment
that had about 20 precincts' worth of material.
THE COURT: You were asking only for absentee ballo ts?
A. We already had access to the ballot bags that had the voted
ballots in them at that time.
THE COURT: Okay. How close was the election in
Harrison County?
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A. It was --
THE COURT: What was the differential?
A. It was over 3,000 votes difference.
THE COURT: Okay. So you already had the voter
registration or the voter rolls or what?
A. At that point we did not. We had -- we had seen a few of
those poll books that we had -- had requested and p aid the
county clerk to redact. But by the time that we we re
officially credentialed by the McDaniel campaign to do that, we
did not have access at that point because the campa ign had not
paid for the redaction of the remaining poll books at that
point.
THE COURT: Okay.
A. That was the subject of another mandamus case.
THE COURT: That's the state case.
A. Yes.
THE COURT: Harrison.
A. Yes. Yes, it was.
THE COURT: Okay. So what did you -- what did you
actually ask for?
A. We asked for the absentee ballot materials, the e nvelopes,
the opened envelopes, and the applications.
THE COURT: Okay.
MR. HOGUE: May I proceed?
THE COURT: And you got 20 precincts --
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A. We initially got 20 precincts on the afternoon of the 9th.
We asked -- we indicated that that was not the enti re supply of
those materials. We got another increment of those on the
morning of the 14th of July. And I asked again on the 17th
with a specific list of the precincts that we were still
missing. And I received a formal letter back from the circuit
clerk indicating that I would need to ask the --
MR. WALLACE: Object --
A. -- Republican --
MR. WALLACE: -- to the letter, your Honor.
A. -- committee.
MR. WALLACE: That would be --
THE COURT: All right. Well --
MR. HOGUE: I would like to --
THE COURT: -- I don't know that it was a letter. He
just told me that he had a response. But the point is,
overruled. You got back a response that said no to the
balance, but you got about 40 of the 60? Is that w hat it was?
A. Yes.
THE COURT: That's your punch line?
A. Yes.
THE COURT: Okay. Great.
MR. HOGUE: Ma'am, it might -- you're the boss. It
might elucidate this whole issue if I offer to intr oduce what
should be in your bench book Exhibit 9, ma'am. It' s a two-page
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document, number 9.
THE COURT: I don't have a bench book. If you coul d
be more specific. I've got numerous things --
MR. HOGUE: All right. Exhibit book. Forgive me.
THE COURT: 9?
MR. HOGUE: Yes, ma'am.
THE COURT: I don't have an exhibit book either. I
have --
MR. HOGUE: Well, let me show you this.
(DOCUMENT TENDERED TO STAFF ATTORNEY)
THE COURT: I have the --
MR. HOGUE: That's an oversight.
THE COURT: I have the --
MR. TEEUWISSEN: Excuse me. Before it goes to the
court, could we see it?
THE COURT: Yeah. I don't know what he's doing. I 'm
sorry. I really --
MR. HOGUE: You have it. Every one of you have it.
THE COURT: My clerk will give it back. Okay.
MR. HOGUE: They already have it. Every one of you
have it.
THE COURT: Okay. Mr. -- Mr. Hogue.
MR. HOGUE: Yes, ma'am.
THE COURT: I'm handing back the document that you
handed me. Show the defense counsel, please --
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MR. HOGUE: Yes, ma'am.
THE COURT: -- the document.
MR. HOGUE: Who does not have it?
(COMPLIED WITH REQUEST)
THE COURT: Okay. Now it's clear what he's showing
me. Now I'll take it -- let me -- let me --
MR. HOGUE: Yes, ma'am. Let me hand it back.
THE COURT: I have received -- and if you're referr ing
to the book that has the witness list and bench mem os and then
your exhibit list, and behind the exhibit list is a few
documents?
MR. HOGUE: Yes, ma'am.
THE COURT: Is that what you're referring to?
MR. HOGUE: And you'll be glad to know it's the ver y
last exhibit.
THE COURT: Okay.
MR. HOGUE: Number 9.
THE COURT: This is no problem.
MR. HOGUE: All right. Now --
THE COURT: The number of exhibits is not my --
MR. HOGUE: Yes, ma'am. Would you permit me to sho w
Exhibit 9 to the witness?
THE COURT: Please do.
BY MR. HOGUE:
Q. Now, Colonel, first of all, I want to refer you t o the
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second page of Exhibit 9. Can you identify that se t of notes?
A. Yes, indeed. This is the -- this is the set of n otes that
I hand delivered to a representative of the county clerk's
office asking for those additional precincts' absen tee ballot
applications and envelopes.
Q. All right. So sum up, what is the essence of wha t these
notes tell us today?
A. Gives us a list of the precincts that at that poi nt on the
17th were still missing applications and envelopes for the
precincts numbered on the left and then the precinc t name on
the right-hand column there.
Q. All right, sir. Now, once you compiled this list , based on
your inspection, did you indeed turn this over to t he circuit
clerk?
A. Yes, I did.
Q. For what purpose?
A. Requesting that they secure those and provide tho se --
provide those to us for review.
Q. All right, sir. Now, did you hear back from the circuit
clerk?
A. Yes, I did.
Q. All right. I want you to turn to the first page of
Exhibit 9. Is that the communication you got back from the
Harrison County Circuit Clerk's Office?
A. Yes, it is.
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Q. All right. Essentially --
MR. WALLACE: At this point, your Honor, I have no
objection to page two, but page one is hearsay abou t what
happened --
THE COURT: Okay.
MR. WALLACE: -- to those documents 17 days after t he
election.
MR. HOGUE: May I be heard?
THE COURT: No. The letter is received for a limit ed
purpose, and the limited purpose is, this is what t he witness
received. It is not being received for the truth o f the matter
asserted as to the Republican Party.
MR. WALLACE: Thank you, ma'am.
THE COURT: For the record, the letter is from Gail
Parker, Circuit Clerk of Harrison County. And it i s written to
Phil Harding and signed by Harrison County Circuit Clerk's
Office, Gail Parker, not the Republican Party. So it's a
limited receipt. It is received in that regard.
(EXHIBIT P-9 MARKED)
MR. HOGUE: Thank you, ma'am.
BY MR. HOGUE:
Q. Now, as a result of receiving that letter, did yo u then
terminate your attempt to gather these records that 's listed
here at the clerk's office?
A. Yes, I did. I turned this letter over to the
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representatives of the McDaniel -- Friends of Chris McDaniel
Campaign for them to engage further if they so chos e.
Q. All right.
MR. HOGUE: Your Honor, in view of your earlier
rulings, give me one moment to consult co-counsel.
THE COURT: All right.
(COUNSEL CONFERRED)
MR. HOGUE: Your Honor, we tender the witness.
THE COURT: Okay. Thank you. Defense, who wants t o
question?
CROSS-EXAMINATION
BY MR. PIZZETTA:
Q. Mr. Harding, you requested these documents from t he county
on behalf of the McDaniel campaign?
A. Yes.
Q. You're not a plaintiff in this lawsuit. Correct?
A. No.
Q. You didn't ask for these documents on behalf of T rue the
Vote. Correct?
A. No.
Q. McDaniel campaign is not a party to this litigati on.
Correct?
A. Not to my knowledge.
Q. You're aware that McDaniel campaign sued Harrison County
over access to documents and lost in the Mississipp i Supreme
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Court. Correct?
A. Yes.
Q. When you were asking on behalf of the McDaniel ca mpaign,
you were doing this as part of the state law ballot box
examination a candidate undertakes. Correct?
A. Yes.
Q. You were his designee.
A. Yes.
Q. You weren't down there asking for documents under NVRA.
Correct?
A. No.
MR. PIZZETTA: Thank you, your Honor.
THE COURT: Anything further?
MR. WALLACE: Your Honor, because your Honor ruled
that the Gail Parker letter was received not for th e purpose of
the truth of its contents, we have no questions.
THE COURT: Okay. With respect to the truth of its
contents regarding the Republican Party of Mississi ppi.
MR. WALLACE: Yes, ma'am.
THE COURT: I mean, I think she sent this letter
regarding declining to turn over additional records in that she
said she had no involvement in the sealing of ballo t bags,
et cetera, and there's a paragraph about the county .
MR. WALLACE: Yes, ma'am.
THE COURT: And I am receiving that as -- for the
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truth to the extent that's--
MR. WALLACE: Certainly for what she did, it's
receivable.
THE COURT: Thank you. Okay. Anything further for
this witness?
MR. NIXON: No.
MR. HOGUE: No, ma'am.
THE COURT: No? Thank you so very much. You're
excused. And thank you for your service.
Okay. Lunchtime. It's 1:21. Let's be back here - -
can I shave a little bit off your lunch? Let's say 2:15
prompt. Thank you all. You're excused.
(NOON RECESS)
THE COURT: Please be seated. Good afternoon. Do we
have everybody we need? Great. Mr. Nixon, do you have any
other witnesses?
MR. NIXON: Yes.
THE COURT: Okay.
MR. NIXON: Ms. McDanald is going to present the ne xt
couple of witnesses.
THE COURT: Great. Thank you.
MS. McDANALD: Plaintiffs would like to call Roy
Nicholson, who is a plaintiff in this suit.
(WITNESS SWORN)
THE COURT: Please be seated. And would you state,
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please, and spell your full name for the record.
THE WITNESS: My name is Roy Nicholson, R-O-Y,
N-I-C-H-O-L-S-O-N. Middle name is Woodrow, W-O-O-D -R-O-W, and
I am a junior.
THE COURT: Okay.
THE WITNESS: Do you have all those pieces together ?
THE COURT: I think I've got it. Roy Woodrow
Nicholson, Jr.
THE WITNESS: Yeah, Roy Woodrow Nicholson, Jr.
THE COURT: Okay. Thank you. You may proceed.
MS. McDANALD: Thank you.
ROY W. NICHOLSON, JR.,
having first been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MS. McDANALD:
Q. Roy, are you a resident in Mississippi?
A. Yes, I am.
Q. And how long have you lived here?
A. 14 years now.
Q. Are you a registered voter?
A. Yes, I am.
Q. Have you voted in any elections recently?
A. Yeah. The most recent was in the Republican prim ary for
the U.S. Senate, both primary and the runoff.
Q. Have you done anything to follow up on the electi on
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results?
A. Yes, I did. After the runoff vote we had heard a llegations
of problems with what I believe one of the defense attorneys
called the crossover vote, or we called it double-v oting, where
a person voted in the Democrat primary and then vot ed in the
Republican runoff.
We had heard allegations, and I wanted to see in my home
county of Rankin if any of that had occurred. And so I went
down to the circuit court clerk's office, Ms. Rebec ca Boyd, and
asked, along with three other people with me, if we could view
those -- the poll book.
Q. What were the names of the three other people wit h you?
A. Sandra Inman is one, and it was also Larry and El va
Eubanks.
Q. And you said that you requested to review the pol l book.
What is the poll book?
A. The poll book is a copy of the voter registration that's
given to the poll workers in which they verify that somebody is
eligible to vote in that precinct, and they mark th em as having
voted in the election of that day.
Q. So how would the poll book specifically help you identify
whether or not there was double voting?
A. Well, the poll books, under standard procedure th at is used
in most places, the two parties will have swapped t heir poll
books from the primary. And in doing that each par ty can
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verify that the people that are coming to vote in t he runoff
had not previously voted in the other party's prima ry.
And so that -- looking at that book would tell us i f people
had voted, because they would have already been mar ked as
having voted in the June 3rd Democrat and then show ed up on the
Republican 24th runoff.
Q. And were you able to gain access to the poll book s?
A. No, we were not. We were denied access by the ci rcuit
court -- clerk. Pardon me.
Q. Were you told that if you ever gained access you would be
permitted to review the birth dates?
A. What we were told when we were there and requeste d to see
these from the circuit court clerk was she had an e -mail from
the Secretary of State ordering her to not allow an yone to view
unredacted original poll books because of the birth date or the
last four of the Social Security number. She also cited the
county attorney had instructed her that those poll books were
not subject to public information requests because they were,
in fact, county property.
Q. Okay. Did you ever seek the poll books from any other
counties?
A. Yes. A day or two before I had visited in Rankin County
while those books were being investigated, and I sa w quite a
few cases of people that had double voted.
Q. Okay. And what specifically were those cases?
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THE COURT: No, not relevant.
MS. McDANALD: We would argue that the evidence is
relevant, in fact, because the Secretary of State w as up on the
bench talking about the implementation of practices of voting
statewide. There's a statewide procedure. This wo uld be
contradictory evidence specific to that testimony, that the
statewide procedure is not being followed county to county.
THE COURT: What does that have to do with the
preliminary injunction hearing we're here on today, which is
the issue of whether people are allowed to see the various
documents you want, redacted or unredacted?
MS. McDANALD: It has everything to do --
THE COURT: Double voting. My point is that I just
don't get it on the double voting.
MS. McDANALD: Absolutely. The double voting is
specifically related to this hearing because the po ll books are
how we see whether double voting did or did not occ ur. And how
do we see that? What he just said. It shows wheth er or not a
person is eligible to vote in a runoff election.
You review the poll book. The poll book says wheth er
or not somebody already voted in the primary. Ther efore, if
you already voted in the primary and you are a Demo crat voting
a primary, you cannot go and vote in the Republican runoff.
You are not eligible.
And that goes to everything about this primary -- I 'm
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sorry -- this hearing, because the NVRA says we get to see, by
public disclosure, every document -- and it is broa d
language -- that relates to the eligibility of vote rs. How do
we know whether or not somebody is eligible to vote ?
THE COURT: Eligibility of voter lists. The statut e
refers to voter lists, accuracy and currency of vot er lists.
So my question is -- and your complaint is that the redactions
are inappropriate. If this gentleman had asked for the voter
list -- or the poll book redacted, apparently, he w ould have
gotten it.
MS. McDANALD: He would have gotten it. And,
essentially, the Fourth Circuit --
THE COURT: The accuracy of the voter list is a -- is
the issue we have here, not whether there was doubl e voting.
So if he wanted to see the voter list --
MS. McDANALD: Okay.
THE COURT: -- he could have seen it without the bi rth
dates. And then if separate events, separate conce rn wanted to
check because there was double voting, then he coul d have
said -- gone through that process.
But as I understand it, this hearing is not about
double voting. It's about the accuracy of the vote r lists and
currency of them. So I don't see the need for deta iled
evidence about double voting. He's already said he saw,
quote -- and I've allowed it in -- quite a few case s, whatever
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that means. So I'm trying to keep us focused.
MS. McDANALD: Sure.
THE COURT: Okay?
MS. McDANALD: Understood.
THE COURT: And, truthfully, whether the statute do es
or doesn't require birth dates is one thing that it does
require, and I don't see a dispute among these peop le about
whether or not the voter lists from which the poll lists are
made were prevented or should have been or could ha ve been
prevented from being turned over.
The issue is the detail of the birth dates. And th is
witness can't -- I mean, he's -- you've established that he
asked for it and that he couldn't get it because of the birth
dates.
MS. McDANALD: That's right.
THE COURT: If you want to add some other facts abo ut
what he could or couldn't get, you may.
MS. McDANALD: I apologize. I thought the Secretar y
of State was trying to argue that the poll books we ren't
covered by the NVRA.
THE COURT: They did argue that, but that's a separ ate
issue, and we already understand what the issue is.
MS. McDANALD: Okay.
THE COURT: But the insistence of double voting is not
my subject today. That's all I'm trying to communi cate.
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A. May I add a comment?
THE COURT: No.
A. Okay.
THE COURT: If she wants to ask -- no offense. I'm
sorry.
A. That's all right.
THE COURT: Go ahead.
BY MS. McDANALD:
Q. To keep it tight and narrow then, we will just -- I would
just ask have you ever received any poll books, com plete or
incomplete, birth dates or no birth dates, in respo nse to your
request?
A. I did not from Rankin County. In Hinds County we were
allowed to view unredacted original poll books. An d the reason
that seemed important at the time had to do with th e currency
of the voter registration list in that if they had previously
voted in the Democratic primary, they are not an el igible voter
in the Republican runoff. And so in order to prote ct the
integrity of the election, I was concerned about th at issue.
Q. Thank you.
MS. McDANALD: No further questions. Pass the
witness.
THE COURT: Did you actually ask to see redacted po ll
books from Rankin County? When they said -- when t hey said no
on unredacted, did you actually ask to see redacted ?
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A. There were two -- two requests that were discusse d. One
was the original, just being able to view, just vie w, not make
copies or anything, but view the unredacted copies there. When
I was told that was impossible, I asked what was th e procedure;
I would like to have a redacted copy.
And at that time I was told it would cost me 50 cen ts a
page, which would have been something in the neighb orhood of
$14,000 and several days for them to have prepared those. And
so there was -- there was no way to make a quick re view. It
was going to take several days.
THE COURT: Well, if it was $14,000, at 50 cents a
page, that's thousands of pages.
A. Yes, ma'am.
THE COURT: And a quick review --
A. It was like 28 --
THE COURT: I don't follow that. How would you do a
quick review?
A. Because the poll books -- there's I think 87,000 registered
voters in Rankin County.
THE COURT: 87,000 --
A. And the poll book has all of those 87,000.
THE COURT: Right. Right.
A. Yes. And so there's like 20 per page, and that w orks out
to, roughly, what, 20 something -- 20 --
THE COURT: So it was --
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A. -- 14,000 pages --
THE COURT: -- the price. It was --
A. Yes.
THE COURT: -- the price that was the problem?
A. The price was very prohibitive. And at the time we were --
working on the information that we had just as laym en, we
thought there was greater urgency to look at them s ooner.
There had been allegations floating around about ta mpering,
about all kinds of issues. And so the quicker we g et in, the
better.
THE COURT: Okay. Thank you. Cross.
MR. SLAY: Your Honor, this is Craig Slay, Rankin
County election commission. Just a couple of quick questions,
if I may.
CROSS-EXAMINATION
BY MR. SLAY:
Q. Mr. Nicholson, you mentioned that you went to see Ms. Becky
Boyd, the circuit clerk for Rankin County. Is that correct?
A. Yes, we did.
Q. What day did you do that?
A. That was June 27th.
Q. I'm sorry?
A. June 27th.
Q. June 27th. All right. So three days after the r unoff
election.
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A. Yes.
Q. June 27th. And you said that two other individua ls were
with you --
A. Three.
Q. Three other individuals were with you at the time ? Can you
elucidate on exactly what you asked to see?
A. Basically -- best I recall, I said, Ms. Boyd, we would like
to review the poll books to investigate to see if t here was
double voting.
Q. Right. Poll books. Did you identify whether you were with
any organization --
A. No.
Q. -- in conducting --
A. No, sir.
Q. -- the research?
A. I was -- I was there on my own behalf as a citize n.
Q. Okay. What relationship, if any, do you have wit h the
other plaintiff in the case, True the Vote?
A. A couple that I think are plaintiffs I have known in the
past. Donna Knezevich down around Poplarville had called me
and said that True the Vote was interested in helpi ng us gain
access to these materials and would I be interested in being a
part of that. And so we had a conference call. I spoke with
some of their attorneys and decided that, yes, I wa s willing to
be a part of that suit.
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Q. Okay. And so you were asked to be a plaintiff in this suit
by True the Vote?
A. I would not say that they asked. No, sir. I was made
aware that they were preparing to bring a suit on b ehalf of us
and offered to be a part of that.
Q. Do you have separate legal counsel in this case?
A. No, I do not.
Q. You don't have an independent attorney --
A. No.
Q. -- representing you?
A. No.
Q. Okay. So you're relying on counsel seated at the
plaintiffs table here --
A. Yes.
Q. -- to provide representation to you as a plaintif f in this
case?
A. Yes.
Q. All right. Are you paying plaintiffs' counsel fo r their
services --
MS. McDANALD: I'd like to object to this line of
questioning.
BY MR. SLAY:
Q. -- personally?
THE COURT: Sustained.
BY MR. SLAY:
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Q. With respect to your request concerning the poll books,
tell me exactly what Ms. Boyd -- as you recall it, what
Ms. Boyd, the circuit clerk, allegedly said to you in response
to your question to get access to the poll books.
THE COURT: Can you spell her name? Is it --
MR. SLAY: Yes, ma'am.
THE COURT: -- B-O-Y --
MR. SLAY: Becky, B-E-C-K-Y, Boyd, B-O-Y-D.
THE COURT: Okay. Thank you.
A. It was -- it was probably a 15-minute conversatio n in which
several things were said. But, essentially, she sa id she was
not allowed to let us see those poll books because she had
orders from the Secretary of State with an e-mail t hat she
showed me and allowed us to read stating that the u nredacted
poll books contained birth dates, which was private
information, and could not be viewed by anyone else , and so
that I was not allowed that access.
We discussed how it could work, what other processe s could
be used. And that's when she explained the only th ing she
could do was, if I paid in advance, I could get red acted
copies.
Q. Do you know why it is that she referred to this a lternate
process, that there would be a process to follow, t hat is,
photocopies would be made, redactions would be made and payment
would have to be made? Did she explain --
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A. I don't --
Q. -- where that process came from?
A. I don't recall where she said that came from. I don't
recall it being a part of the Secretary of State's letter.
And -- I do not recall.
Q. Okay. But you do recall that there was a process laid out
to you whereby you could obtain access to the poll book
information. Correct?
A. That's correct.
Q. All right. So the issue for you, obviously, is t he cost
associated with the preparation and presentation.
A. The cost and the urgency. As I said, we -- we ha d heard
allegations -- and we understood they were just all egations,
and we have great confidence in our own election pe ople in
Rankin County. But because there were so many alle gations from
all over the state, including tampering with the do cuments, we
felt like it was very urgent to get in there as qui ckly as
possible and to see those poll books.
Q. As you sit here today, do you have any evidence a t all in
your possession or subject to your control that wou ld suggest
that in Rankin County, Mississippi, there is an iss ue of
tampering with the election, tampering with documen ts, altering
election documents? Do you have any information in your
possession or under your control?
A. I do not have hard copies of anything. I have wh at amounts
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to cause for suspicion. And the suspicion arises f rom the way
that prior to the election, as we would read report s or hear
anecdotal evidence that different things were going on, the
vote buying, the different things, that were going to taint and
corrupt the Republican primary and prevent the Repu blicans from
being able to determine their own candidate, as we heard this,
we would relay this information both to the Secreta ry of State,
the Governor and the party chairman, Joe Nosef.
I did this several times. I would copy stuff that appeared
on the news or that had been circulated. And I wou ld say ,
Please take steps to prevent these illegal activiti es from
taking place. They're doing things that are contra ry to state
law. Do something to stop it. And the repeated answer I got
was always two parts: They had no responsibility a nd they had
no authority. And the finger would get pointed in another
direction. And it was just a round-robin effect.
And as a voter, I felt like I was being defrauded o f the
fidelity of my vote and its effectively being dilut ed and
stolen from me, the power, the right to select our own
candidate, by these illegal activities which were a ppearing --
and I had already seen evidence of it in Hinds Coun ty -- was
appearing as evidence in the poll books. So the po ll books --
THE COURT: Is there a question pending?
A. -- became important.
THE COURT: Is there a question pending?
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MR. SLAY: I'm not sure, your Honor.
THE COURT: Why don't you ask a question so we can
move on.
MR. SLAY: Okay. Thank you, Judge.
BY MR. SLAY:
Q. Have you -- have you followed up the conversation that you
had with Ms. Boyd on June 27th with any written req uest for
documentation, poll books or otherwise?
A. No, I did not. My actual comment to her was at t he time --
the legal arguments were certainly well over my abi lity to have
any say in. And so I said, well, I will simply lea ve that to
the campaign to determine.
Q. Did you fill out any public record request --
A. No, I did.
Q. -- provided by Rankin County?
A. No.
Q. Thank you.
MR. SLAY: Nothing further, your Honor.
THE COURT: Do you recall mentioning anything about
the federal statute, the National Voter Registratio n Act?
A. Would you repeat that, please?
THE COURT: Do you recall mentioning anything to
Ms. Boyd about the National Federal -- the National Voter
Registration Act?
A. No, ma'am, I did not.
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THE COURT: Anything else? No. Okay. Thank you v ery
much. Oh, anything further?
MS. McDANALD: No. I was saying no redirect.
THE COURT: Okay. Thank you. You may step down.
MS. McDANALD: Plaintiffs would like to call Ellen
Swensen, but I believe she's sitting outside becaus e the rule
has been invoked.
THE COURT: Well, you've got a lot of people with y ou.
Maybe they could help you out. Who's your next wit ness going
to be? Because you can assign -- you're in charge. You can
assign any one of those gentlemen to go get the nex t witness
when you want. Okay? Use this authority when you have it.
MS. McDANALD: Well, now we're just going to have o ne
more, but -- and she's awfully close. She's only o n the second
row. But I'm going to have to ask one of the partn ers to do
that for me.
THE COURT: We'll see. Okay. Thank you.
MS. McDANALD: That was great.
(WITNESS SWORN)
THE COURT: Please be seated. And once you're
comfortable, pull up the chair close to the mic. T hen state
and spell your whole name for the record, please.
THE WITNESS: Ellen Swensen. And it's E-L-L-E-N,
S-W-E-N-S-E-N.
THE COURT: Okay. Thank you. You may continue.
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ELLEN SWENSEN,
having first been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MS. McDANALD:
Q. Hey, Ellen.
A. Hi.
Q. Are you a resident of Mississippi?
A. No, I'm not.
Q. And where do you live?
A. California.
Q. And I understand you're recently retired.
A. Yes.
Q. Congratulations. What did you used to do?
A. I spent many years of my career working in market research.
And what I did was analyze complex sets of data and -- looking
for anomalies and patterns in the data, and took th ose findings
and created strategic direction for my clients' bus inesses.
Q. And are you a volunteer now for True the Vote?
A. Yes, I am.
Q. And you were able then -- sorry. Are you a regis tered
voter in Mississippi?
A. No, I'm not.
Q. So you did not recently vote in the Republican pr imary.
A. No.
Q. Have you been, though, to Mississippi on behalf o f True the
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Vote?
A. Yes. I was previously here between July 5th and 10th.
Q. Okay. And why did you come?
A. I came to -- as a volunteer. They asked me to co me to
assist in reviewing and acquiring publicly availabl e documents
to help -- or that -- to give my findings to True t he Vote so
they could do their job of assuring whether or not this
election had integrity.
Q. Was it just you by yourself or were you with a gr oup?
A. I came -- I came with a group of people from arou nd the
country, and I was with a colleague named Susan Mor se.
Q. Okay. And were you trained by True the Vote once you
landed in Mississippi?
A. Yes. We met. And they, first of all, had to tak e us
through how Mississippi elections work, because eve ry state is
different and we were people from around the countr y. And then
we also focused on how the absentee ballot applicat ion process
works.
And then we were given the memo from True the Vote Attorney
Hogue that gave us what our authority was to reques t these
documents based on the National Voter Registration Act. We
were given what -- the list of all the documents we wanted to
acquire and a blank incident form -- incident repor t forms, as
well as a list of counties that we were assigned to .
Q. And with the incident --
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THE COURT: Would you -- forgive me.
MS. McDANALD: Sure.
THE COURT: Would you go through exactly what you w ere
given again.
A. Okay. Sorry. We were given and shown examples o f how
Mississippi elections work, because every state is different.
And, specifically, we looked at the absentee ballot application
and how it's supposed to be filled out and so on. And then we
were given the -- a memo from Eades Hogue, and it w as -- he's
the True the Vote attorney. And the memo cited our authority
to request these documents. It had a quote on it, and I can't
recall the exact -- it's probably in the records, b ut it quoted
the NVRA statute that allows us to acquire these pu blic
documents.
We were given blank incident report forms and a lis t of the
documents that we were to review and procure. And, finally, we
were given a list of our counties that we individua lly were
assigned to.
THE COURT: Thank you.
BY MS. McDANALD:
Q. And which counties were you assigned to?
A. I was -- Susan Morse and I were assigned to Leake , Jones
and Covington.
Q. Okay.
MS. McDANALD: And, Keithfer, I'm sorry. How do I
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turn the screen on?
THE COURT: Just press the green button.
MR. ROBINSON: It's on.
MS. McDANALD: Oh, great. Thank you.
BY MS. McDANALD:
Q. Is this an example of a True the Vote incident re port?
A. Yes.
Q. Okay. And under the name right there, is that --
THE COURT: Excuse me. For the record, what are yo u
showing her?
MS. McDANALD: Oh, sorry. This is Plaintiffs'
premarked Exhibit 5. I would offer it into evidenc e as a True
the Vote incident report authored by Ellen Swensen, our
witness.
THE COURT: Incident report authored by Ms. Swensen ?
Okay. Objections?
MR. WEBB: Yes, your Honor. If I could, Jeff Webb,
Leake County --
THE COURT: Speak up.
MR. WEBB: Jeff Webb, Leake County Election
Commission. Your Honor, we would object to this do cument.
It's signed by someone other than Ms. Swensen, the witness.
Also contains hearsay statements as their recollect ion of
statements made by the circuit clerk, who is not a party to
this suit but is within the subpoena power of this court and
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has not been subpoenaed to come here today. So we would object
to it as hearsay.
THE COURT: Okay. What's the author?
MS. McDANALD: In response to the hearsay objection ,
this is not only a business record, not only is the witness who
offered the record on the stand, but it is also a p resent-sense
impression. I will offer evidence that it was reco rded at or
near the time of the events that occurred.
THE COURT: Who wrote it?
BY MS. McDANALD:
Q. Ellen Swensen, did you write this document?
A. Yes, I did.
Q. And I see that it is signed by Susan Morse who yo u said was
with you.
A. In addition to my signature.
Q. Did you see her -- did you see her sign it?
A. I did.
MS. McDANALD: In fact, a lot of affidavits are sig ned
by a notary public, and that does not make them hea rsay by
having the additional signature.
THE COURT: The fact that they're under oath does n ot
get them out of the hearsay exception. But I will allow them
in. Did you write this document? I think --
A. Yes, I did. That's my handwriting.
THE COURT: Okay. And did you sign it? I don't ha ve
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it open right here in front of me.
A. Yes, I did.
THE COURT: All right. Do you -- when was the
document actually written?
A. Immediately after we stepped out of the circuit c lerk's
office.
THE COURT: All right. I'll receive it as
present-sense impression, and I'm also receiving it as a -- to
the extent it is the incident report and not the st atements
within it, it's received as a business record. How ever, that
does not get you over the hearsay within hearsay, w hich I'm
going on the present-sense impression.
For the record, it is the impression of this witnes s,
not necessarily the truth. You are more than welco me to
cross-examine. And, by the way, this is a prelimin ary
injunction hearing, and the rules of evidence do no t apply.
But in good faith, I'm trying to --
MR. WEBB: Judge, last time -- and I may have
overlooked it, but I did not see where Ms. Swensen signed the
document.
THE COURT: I was turning to that myself. Let's se e
if we can get to that. Thank you. Where is your s ignature,
ma'am?
A. I think it's on the signature line, second page.
THE COURT: You need to zoom in.
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(COMPLIED WITH REQUEST)
THE COURT: Can you see it now, Ms. Swensen?
A. Yes. Yes, that's my signature.
THE COURT: Okay. Great. It's signed then. Who
wrote the attachment?
A. I did, ma'am.
THE COURT: Thank you.
BY MS. McDANALD:
Q. I'm guessing you wrote it in the attachment becau se there
wasn't enough room in the box?
A. Yes. There wasn't enough room in the way the for m was
made.
Q. You stated that you visited Covington, Jones and was it
Leake County?
A. Leake.
Q. Okay. Did you request records from Covington Cou nty?
A. Yes, we did. I'm trying to remember --
MR. SANDERS: Object, relevancy.
A. Yes, we did.
THE COURT: Counsel, for some reason -- and I
apologize for this -- we don't have enough micropho nes in here
for the defense side. Maybe the next time if we're ever back
here we will have more mics.
MR. SANDERS: I'm sorry, your Honor. We just objec ted
to relevance about -- anything about Covington Coun ty. It's
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not one of the defendants.
THE COURT: Not one of the defendants. Thank you.
Nevertheless, I'm going to receive it because of th e statewide
aspect of this. Go ahead.
BY MS. McDANALD:
Q. Where did you go in order to make a records reque st in
Covington County?
A. We went into the circuit clerk's office.
Q. And how did you make this request? Was it writte n or oral?
A. We started with oral, but then we ended up per
Ms. Duckworth's request putting it in writing.
Q. And, sorry, you said Ms. Duckworth?
A. Yes, in Covington County. Yes. Sorry. She's th e circuit
clerk.
Q. Thank you. And what specifically did you request as far as
documents?
A. We requested three things. One was an electronic file with
the -- a list of everybody who voted in the Democra t primary
and Democratic runoff, as well as the Republican pr imary and
Republican runoff in June. Cut by precinct and the n cut by
absentee versus polling place votes. And we reques ted that
electronically.
We secondly requested to review the poll book from
June 24th. And we requested to look at the absente e ballot
envelopes, the absentee ballot applications and the absentee
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request forms.
Q. And were you provided any documents in response t o your
request?
A. No, we were not.
THE COURT: And how many voters are there roughly i n
Covington County?
A. I do not know.
THE COURT: You don't know. Who knows.
A. I don't know, your Honor.
THE COURT: Roughly. 10? 200,000? Nobody knows?
MR. WALLACE: Voters or poll books, your Honor?
THE COURT: Eligible voters.
MR. WALLACE: Your Honor, I don't know. But a numb er
of people who voted are in the record. The certifi cation
letter is attached as an exhibit to our response to the TRO
motion, and that's got each of the 82 counties, how many people
voted.
THE COURT: Okay. Well, that wasn't what I asked,
because she asked for poll books.
MR. WALLACE: I understand.
THE COURT: She asked for applications. So I'm
gathering that's a very large number of documents. That's why
I was asking about the number of eligible voters in that
county. Anyway, does anybody know? No? Okay. Bu t we can
look up the voters, but that's not what I asked. I appreciate
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the information, however. Thank you. Okay. Next.
BY MS. McDANALD:
Q. "Next" is a perfect word. Next, which county did you go to
next?
A. Well, we actually started in Leake County on Mond ay and
so -- and then Covington was our last county. So J ones was
before that on the same day.
Q. And I apologize --
THE COURT: I'm sorry. I may have stepped on your
questions, but what happened?
MS. McDANALD: Oh, with the Covington County, she s aid
that she requested records and that she was denied.
THE COURT: I'll let -- thank you. I'll let the
witness tell me.
MS. McDANALD: Sorry, your Honor.
THE COURT: Because I gathered there was more to it
than that.
A. As I said earlier, we did request it verbally. T hen she
asked us to put it in writing. And she -- Ms. Duck worth, the
circuit clerk, said that she was too busy to deal w ith it that
day because she was leaving the next day for a conv ention, and
we couldn't -- we could come back Monday and then s he could
address the whole thing then.
THE COURT: Okay. So did you ever put it in writin g?
A. Yes, we did, and we left that with Ms. Duckworth.
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THE COURT: Okay. Thank you.
MS. McDANALD: And this is not an item that was
included as an exhibit on our exhibits list. This is a Leake
County request. If I put it up here, is that okay? Everybody
can see it on the screen?
THE COURT: All right. What number?
MS. McDANALD: This would then be Plaintiffs'
Exhibit 10 I think.
THE COURT: All right.
MS. McDANALD: Exhibit 10.
THE COURT: Was there an exhibit that I missed on t he
Covington County? I don't think it was introduced if it was --
STAFF ATTORNEY: That's 5.
THE COURT: 5 is --
MS. McDANALD: Covington.
THE COURT: Okay. What about Lee? Is there an
exhibit on Lee?
MS. McDANALD: It would be Exhibit 10. It wasn't
included in the exhibit list.
MR. WEBB: Your Honor, I believe I objected to the
wrong.
THE COURT: Yeah. I'm sorry. I'm confused. That' s
what's confusing me too. I'm keeping notes, and I was
confused.
MR. WEBB: I thought it was Leake, but I would just
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enter my same objections for the Leake County ones. And I
don't believe -- I don't believe she signed the Lea ke County
ones, unless I overlooked it. But just for the rec ord, thank
you.
THE COURT: Okay. Well, she was testifying about L ee
County and then Exhibit 5 was introduced. But it l ooks like
Exhibit 5 may be the Covington County -- or Lee? W hich one?
It was Covington. I can see it on its face.
A. I was testifying about Covington.
THE COURT: Fair enough. Then 10 is Lee.
MS. McDANALD: Yes.
THE COURT REPORTER: Is it Leake or Lee?
MS. McDANALD: Leake, L-E-A-K-E.
THE COURT: Oh. Thank you.
BY MS. McDANALD:
Q. Did you make a records request to Leake County?
A. Yes, we did. We verbally requested the same list . I can
go over it again if you'd like.
Q. Oh, I think that we probably -- the record should be fine
on the list. But where did you go to make the requ est?
A. Went to the circuit clerk -- circuit court clerk' s office
in Leake County.
Q. And who did you speak there with?
A. Kathy Henderson, the circuit clerk.
Q. And did you make the request for the documents be ing the
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same documents that you requested in Covington?
A. Yes, we did. We did it verbally and then she ask ed us to
put it in writing.
Q. And did you receive any documents in response to your
request?
A. No, we did not.
Q. You stated that you also visited Jones County.
A. Jones County.
Q. And I'm going to put the incident report marked E xhibit 4
for Jones County. Where did you go in order to req uest records
from Jones County?
A. To the circuit court clerk in Laurel.
Q. And who did you speak with there?
A. The deputy circuit clerk. I believe her name was Helen. I
can't remember right now, but it was a deputy clerk .
Q. Okay. And did you make the record request verbal ly or in
writing?
A. Verbally at first and then in writing.
Q. And what was the response to your request?
A. This deputy said that the circuit clerk was out o n a
capital murder case in a different county and would not be back
until possibly the next day. And then nobody in th e office had
any authority, even though they're all deputies, to give us --
to grant us any authority to acquire the documents we wanted to
acquire.
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Q. How many deputy clerks did you speak with?
A. We spoke with the one deputy, and then Susan Mors e asked if
there was an election commissioner there, perhaps w e could get
some authority from them. Two people came out, and their names
are in the record. And both of them said they did not have the
authority. Only Bart Gavin had the authority to gr ant any of
this that we had asked for.
Q. Okay. Have you ever received any records in resp onse to
your request from Jones County?
A. No, we have not.
Q. Thank you.
MS. McDANALD: The plaintiffs would like to offer
Exhibit Number 4 into evidence.
THE COURT: Received under the same principles as
articulated earlier.
(EXHIBIT P-4 MARKED)
MS. McDANALD: Sure. And I'm not sure I exactly
offered --
THE COURT: You didn't. Let me just --
MS. McDANALD: -- Exhibit 10.
THE COURT: I've made an assumption here.
Ms. Swensen, did you write -- or Swanson. I'm sorr y. Did you
write the reports for these other counties, Leake a nd Jones?
A. Yes. I wrote all the reports I've seen on the sc reen
today.
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THE COURT: Okay. Thank you.
(EXHIBIT P-10 MARKED)
MS. McDANALD: And 4 and 5 were received as well?
THE COURT: Yes.
(EXHIBIT P-5 MARKED)
THE COURT: Are you giving copies out to everybody of
10?
MS. McDANALD: I don't actually have copies with me
for everyone on 10, but I can show everyone.
THE COURT: We'll make copies for everybody at the end
of the hearing.
MS. McDANALD: Certainly. And I think -- I think w e
fully intend -- there was a request from defendants that we
would produce all of our True the Vote incident rep orts, and we
were happy to disclose them all.
THE COURT: That's fine, but they're not all being
received in evidence today, and just remember 10 is . And I'd
love that, and the court reporter needs it too. So we'll get
that at the end of the hearing.
MS. McDANALD: Okay.
BY MS. McDANALD:
Q. Did you have any other responsibilities on behalf of True
the Vote during this visit that you made during the July dates
you disclosed?
A. No. It was basically going to the three counties and then
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reporting back and recording everything -- writing everything
we had and then giving that back to True the Vote.
Q. And I just want to bring this up in a slightly le ading
question. I apologize. But you had told me that t here was an
app that you put on your phone?
A. Oh, yeah. That was part of -- I assume to be par t of the
transmission of the data. When we go out in a wait ing area,
right immediately after the incident I'd write ever ything out
exactly as it happened. And then I would -- we hav e a
TurboScan app on my phone.
And so we would scan the documents by photographing them
with the phone and then e-mail them to Vicki Pullen who is with
True the Vote. And so they were immediately -- the y were all
relayed in realtime. Then when we returned that ev ening from
all our counties, we would give the originals over to Vicki
Pullen.
Q. Thank you.
MS. McDANALD: Pass the witness.
THE COURT: I think this is implicit, but just in
case, in Leake County you left a letter. And did y ou ever
receive any documents?
A. From Leake County we have not received any docume nts.
THE COURT: And did anyone ask you to pay money to
redact?
A. We --
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THE COURT: That you would get the documents if you
paid a fee of some sort?
A. No. When we requested the poll books, Ms. Hender son came
back and said that they would have to be redacted. I cited the
NVRA, that we don't believe it does have to be reda cted and we
do not want to pay money for it. She went back to the Attorney
General -- you know, phoned the Attorney General's Office again
and came back and said, Sorry. They have to be redacted.
BY MS. McDANALD:
Q. And sorry, if I may, what was the estimated cost of the
redaction?
A. The redaction, we never got a quote because I sai d that we
weren't going to -- we didn't want -- did not want to have them
redacted.
Q. Did any other counties, Jones or Covington, in ad dition to
Leake, give you a quote for how much the redaction would be?
A. No. I never got a quote for redaction.
Q. Okay.
THE COURT: Thank you. Any questions for defense?
MR. MATHENY: A few questions from the Secretary of
State, your Honor. If I may, could I see --
THE COURT: Do you want to see that document?
MR. MATHENY: Yes.
THE COURT: To the extent -- you know, he's looking at
that document longingly. Okay. We could make a co py if you
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want to start on something else, sir. Is this the only copy in
the courtroom?
MR. NIXON: Yes.
MS. McDANALD: I think so, and I actually took it - -
THE COURT: We can make a couple of copies if you
want.
MS. McDANALD: Actually, I took it out of Ellen's
file. She brought a file of report --
THE COURT: Ellen is who?
MS. McDANALD: Ellen is our witness on the stand.
THE COURT: I know. I'm trying to train her. Okay .
Go make five copies, please. Are there any other d ocuments in
the record that are not copied already? Because my clerk could
make the copies as a courtesy for you. No? Hearin g no
votes -- or no request, we'll move on. We'll have those back
in just a minute. If could start somewhere else, t hat would be
terrific.
MR. MATHENY: Sure.
CROSS-EXAMINATION
BY MR. MATHENY:
Q. Let's start with Covington County, if we can.
A. Okay.
Q. As I understood your testimony, you and Susan Mor se --
A. Yes.
Q. -- went to Covington County on July 8th.
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A. Yes.
Q. And let me make sure that I've got this correct. You made
a request from the circuit clerk's office for absen tee
applications, absentee envelopes, absentee request forms, and
poll books for the June 24th, 2014, runoff. Is tha t correct?
A. Yes. In addition to the electronic file that we were
requesting.
Q. Okay. I'll get to that electronic file in just a second;
but as far as actual documents that will exist on p aper, those
were the documents that you requested from the Covi ngton County
Circuit Clerk?
A. I believe we also asked for some postcards -- the UOCAVA
postcards that were available, if my memory serves me.
Q. Any other actual physical documents that you --
A. No, not beyond --
Q. Let me finish my question before you answer, plea se.
A. Sorry.
Q. Any other actual physical documents that you requ ested from
the Covington County Circuit Clerk?
A. "Physical" meaning on paper?
Q. On paper.
A. No.
Q. Did anybody at the Covington County Circuit Clerk 's Office
advise you that absentee ballot applications, absen tee
envelopes, or absentee request forms were sealed in poll books
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in Covington County on July 8th, 2014?
A. No. That was not said.
Q. When you were there at the circuit clerk's office in
Covington County, was there anybody from the Cochra n or
McDaniel campaigns there conducting an examination of the
ballot boxes?
A. Not that I saw.
Q. Let me ask you about the electronic files you ask ed for.
As I understood your testimony, before you went out to these
counties, a bunch of True the Vote volunteers got t ogether and
had a meeting with Mr. Hogue?
A. No. Mr. Hogue was not there at the training.
Q. Okay. And -- but this was a training meeting whe re
everybody got together.
A. Yes.
Q. And one of the things that you were provided at t hat
meeting was a list of everything you wanted to ask for from
circuit clerks' offices. Is that correct?
A. Yes.
THE COURT: Have these materials been turned over i n
discovery?
MR. MATHENY: I believe so. Well, I wouldn't call it
discovery, your Honor.
THE COURT: No.
MR. MATHENY: We were given the exhibit list, and
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that's what I understand -- and I'll show it to the witness --
THE COURT: I'm specifically asking about the train ing
materials that you were just asking about.
MR. MATHENY: I was just getting to that. I was go ing
to ask.
THE COURT: I see.
BY MR. MATHENY:
Q. What I'm going to show you is document 43-5, page 5 of 5.
Let me represent to you this is the third page of - - I guess
the fourth page of the Covington County Clerk's Off ice incident
report that you were talking about earlier. Is thi s page here,
this list, is this a list that was given to you at this
training meeting?
A. This is the list I took away from -- from the tra ining, as
far as I know.
Q. And did you, in turn, provide this list to the Co vington
County Circuit Clerk as your written request?
A. Yes. We -- there are no forms available. So we -- this is
what we had to do throughout the counties, write -- in
addition, you know, write out, add some writing to them too.
Q. But this is one you specifically did for Covingto n County,
because it says "Covington" --
A. Yes. Yes.
Q. -- "County" at the top?
A. Susan Morse wrote this, but this is what we submi tted to
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Covington County.
Q. And remind me again, what was it that you were to ld with
respect to the electronic information that you requ ested?
A. We were told about that as well as everything -- that
nothing could be addressed until the following Mond ay because
the court clerk was too busy preparing to go out of town the
next day for a convention.
Q. And as I understand it from your incident report, you were
told to just come back on Monday. Is that correct?
A. Yes.
Q. Did you actually go back on Monday?
A. No.
Q. And that was July 8th that you were at the Coving ton County
Circuit Clerk's Office.
A. I believe so, yes.
Q. What day of the week was that?
A. I believe it was a Wednesday.
Q. You believe it was a Wednesday.
A. Monday? Or Tuesday?
Q. And so when you --
A. It was a Tuesday. I'm sorry.
Q. It was a Tuesday. So when you were told to come back on
Monday, that would have been Monday of the next wee k?
A. Right, almost a week later.
Q. So instead of going back on Monday, I think this lawsuit
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was filed on July 9th. Is that right?
A. Yes. We went back to California.
Q. You left and went to California -- went back to C alifornia?
A. (Nods head affirmatively)
Q. When did you go back to California?
A. The Wednesday -- no -- sorry. Wednesday.
Q. Do you know if anybody else actually followed up by going
back that Monday or at any time --
A. I do not know --
Q. -- after that?
A. I do not know if they did or not.
Q. Let me ask you about the Jones County visit.
MR. MATHENY: And I'm sorry. I wasn't following if
this was actually in evidence or not, but --
THE COURT: I received all the three incident repor ts.
MR. MATHENY: Okay.
BY MR. MATHENY:
Q. When you went to Jones County, I take it that you made the
exact same kind of request in terms of the specific information
that you requested from the circuit clerk's office.
A. Yes.
Q. Is that correct? And, in fact, this is on the ex hibit
that's been entered into evidence and is also docum ent 43-4.
But this looks to me like the same written request that was
handed over to the Covington County Circuit Clerk's Office. Is
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that correct?
A. Susan Morse wrote this for this county, and they took a
copy of it. That's why -- they gave us a copy back , and that's
why it's kind of bad. You can't read it very well.
Q. You're talking about the --
A. I did --
Q. -- writing here?
A. Yes.
Q. Well, I guess let me ask a better question. Is t his the
same list that was not only the basis of the writte n request to
Covington County but also from the volunteers meeti ng that you
were talking about earlier?
A. Yes.
Q. So you're requesting the same materials from a di fferent
circuit clerk's office. This time it's Jones Count y. And what
day was it?
A. It was the same day as Covington, which was I thi nk the --
the 8th, I believe.
Q. Both July 8th.
A. Yeah.
Q. And so let me ask the same kind of questions. We re the
Cochran or McDaniel campaigns there in Jones County inspecting
the ballot boxes on July 8th?
A. I did not see anybody from the campaigns.
THE COURT: Do you know -- did you hear any
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discussion?
A. For Jones County?
THE COURT: Yeah, or the other one, either place.
A. Jones or Covington? No. I did not see or sense that there
was anyone there at that time for those two countie s.
BY MR. MATHENY:
Q. Did anybody at the circuit clerk's office make me ntion to
you about a lawsuit that had been -- a lawsuit betw een Chris
McDaniel and the Jones County Circuit Clerk about p roducing
poll books?
A. No.
Q. Do you know whether or not the circuit judge ther e in Jones
County had issued an order ordering the circuit cle rks to
produce or not produce poll books to the McDaniel c ampaign
there on July 9th -- 8th?
A. No. No. I do not.
Q. This written request, even though we can't see wh at it says
up there, you can tell us what happened. Did you l eave this
written request there with the Jones County --
A. Yes, we did, the original. And this is a copy th ey gave us
back of that.
Q. What documents -- and I'm talking about actual pa per
documents you requested. What actual paper documen ts did you
eventually get to review there with respect to Jone s County, if
any?
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A. None.
Q. Did the Jones County Clerk's Office ask you to co me back at
a later date?
A. They said that Mr. Gavin was out on a -- out for the day on
business and he might be back the next day. But we didn't
know. So we weren't necessarily invited back the n ext day.
Q. But, in any event, you didn't go back another day after
that --
A. No --
Q. -- to follow up.
A. -- we did not. But we left the written request.
Q. As far as you know, they haven't followed up by s ending you
any electronic files in response to your written re quest.
A. As far as I know, not.
Q. Did any of your written requests specify that the y were
made under the NVRA, or National Voting Right -- Re gistration
Act?
A. Not the written request itself. In Leake County we did,
though, give them the memo that cited our authority .
Q. Let me make sure that I'm following you. With re spect to
Leake County, is this a copy of the memo you're tal king about?
A. Yes.
THE COURT: What are you showing her? 10? A page of
10?
MR. MATHENY: It's --
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THE COURT: What are you showing her, in other word s?
MR. MATHENY: I have it as document 25-1, and I thi nk
it -- the confusion I was having about what was the exhibit
earlier --
THE COURT: I don't think that the page you just
showed on the record is -- the page you just showed on the Elmo
is on the record.
MR. MATHENY: That's what I was just -- it may be
better that I hand this to the witness and ask her if she --
THE COURT: You can handle it any way that you want ,
but I don't believe I've seen that before in this r ecord today.
(DOCUMENT TENDERED TO WITNESS)
BY MR. MATHENY:
Q. Ma'am, do you recognize that -- I believe it's a four-page
document that I just handed you. Do you recognize that?
A. Yes, I do.
Q. What is it?
A. It's a -- it's an incident report written by Susa n Morse
and -- asking for the AG's opinion in writing. And then
attached to it is her handwritten records request f or the
documents that we're looking for.
Q. And I guess my question is, with respect to the h andwritten
request there -- first off, let me ask you, is that your
handwriting or is that --
A. That is Susan Morse's handwriting.
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Q. And is that the written request that you submitte d to the
Leake County Circuit Clerk for the documents and el ectronic
files that you were requesting?
A. Yes, but I think that this is referred to in a di fferent
incident report possibly, but...
THE COURT: I assume this is going to be discussed
with the next witness. Is that Morse? Morse or Mo r-riss? Or
not?
MS. McDANALD: No, your Honor. Ms. Morse did not m ake
it out. But our next witness is Julie Patrick. I would just
like to offer that into evidence since it's being u sed against
us during cross-examination, and that makes it a pa rty opponent
admission.
THE COURT: Yeah. What do you think?
MR. MATHENY: Well, I can -- that's fine by me. I
think that they're both incident reports that relat e to the
same visit to Leake County.
BY MR. MATHENY:
Q. My question would be this: You have that there i n front of
you, and I believe you said that that was the writt en request
that you left there with Leake County --
MS. McDANALD: I apologize. Can I get a ruling on the
offer of evidence?
THE COURT: Not right now. I'm still waiting for a
foundation. I'm trying to figure out who wrote thi s and
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everything else. So I'm holding on the ruling. Th is is all in
the nature of foundation. It is to me.
MR. MATHENY: That was the purpose, your Honor.
BY MR. MATHENY:
Q. The written request that you have there, I believ e you had
just said that it was written by Susan Morse.
A. Yes.
Q. Is that right? But is that the written request t hat you
and Susan Morse left with the Leake County Circuit Clerk's
Office?
A. It looks to be. Yes.
THE COURT: Okay. Then are you offering it or shou ld
I just accept the plaintiffs' offer and we'll make it number
11?
MR. MATHENY: Your Honor, we can make it number 11. I
only have one more question about the document if i t's
admissible.
THE COURT: I would like to get the document either in
or not, I mean. So I'm going to go ahead and recei ve it.
MR. MATHENY: Certainly.
THE COURT: It's being offered. I'm going to make it
Plaintiffs' 11, but that is a different document fr om 10 that
we earlier received.
MR. MATHENY: Right.
(EXHIBIT P-11 MARKED)
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BY MR. MATHENY:
Q. And my question is this: There on your written r equest,
isn't it true that your written request does not st ate anything
about requesting any of the documents with -- under the
National Voter Registration Act? Is that correct?
A. Please repeat the question.
Q. Let me rephrase it. At the top of that handwritt en
document, it says, "Public Records Request." Corre ct?
A. Yes.
Q. Does anything in writing in your written request there --
does it make a request for any of the documents und er the
National Voter Registration Act?
A. It does not mention the National Voter Registrati on Act in
this document.
Q. Thank you very much.
THE COURT: Okay. My clerk will make copies for
everybody. Any other cross?
MR. WEBB: Leake County, if I may.
THE COURT: Yeah. Okay.
MR. WEBB: Judge, forgive me. I thought that 10 wa s a
composite as the attachment to the bill of particul ars. But
I'm dealing with the document that he just referred to.
THE COURT: I'm sorry. What I was given has three or
four pages to it, three pages.
MR. WEBB: And I --
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THE COURT: Four. I'm sorry. Four pages. So we'r e
going to have 11 be the other one. If there's dupl ication,
then so be it.
MR. WEBB: And I'll try not to go through the same
questions.
CROSS-EXAMINATION
BY MR. WEBB:
Q. My name is Jeff Webb, and I represent just Leake County.
So that's all.
A. Okay.
Q. And that was -- Kathy Henderson is I think who yo u spoke
with there.
A. Uh-huh (indicating yes).
Q. And I don't know if you were asked this. I know you were
of the other counties. But was there a ballot box review going
on at the time you were in Leake County?
A. I know that the candidates were in Leake County i n a room
that we could not see and -- but I'm not aware of e xactly what
documents they were going through, though.
Q. Okay. And I gather from your other testimony tha t you had
a conversation and then you reduced your request to writing,
which I think is here, which is now Exhibit 11, if I'm not
mistaken?
A. Yes. We were refused on the poll -- well, excuse me. We
refused -- we could access the poll book once the c andidates
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were done with it, but it would be redacted. And w e were told
we could not see the absentee materials. So it was reduced to
this request in writing, which is for the data.
Q. Okay. But you made your formal public records re quest
after the discussion. And this is what was left wi th the
clerk.
A. Yes.
Q. Okay. And this document asks for four things, wh ich are
the voters, Republican and Democrat, who voted in J une 5 and
the primary runoff elections. Correct?
A. Correct.
Q. Okay. And what were you told about those records ?
A. We were told that Ms. Henderson's data person wou ld be out
and -- and that she wouldn't answer whether we coul d get it or
not that day.
Q. But you weren't -- were you given a price?
A. Yes. The next day she phoned -- I was driving. Susan
Morse was on the phone. She phoned Susan Morse and said we
could access -- we could get this disk and it would be $100.
Q. Okay. Did you think that price to be unreasonabl e for that
information?
A. Yes, we did.
Q. You did?
A. Yes.
Q. For all that information? And that would be in e lectronic
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format?
A. On a disk in electronic format.
Q. And that would --
THE COURT: What are we talking about in terms of
quantity? $100 for one page might be a lot, but $1 00 for
10,000 pages might be another story.
MR. WEBB: And, Judge, I can't tell you how many pa ges
it would have been, but it would have been each vot er in those
Republican and Democrat in those two elections. So it would be
considerable, but I can't tell you how many pages.
THE COURT: Okay. I guess that's in the Republican
Party exhibit. Does that exhibit you mentioned ear lier have
the voters for the primary or the runoff?
MR. WALLACE: It's the runoff certifications, your
Honor.
THE COURT: Oh, that's different.
BY MR. WEBB:
Q. And just to clear up, this would have been, if I' m not
mistaken, Ms. Swensen, the second page of your requ est?
A. Yes.
Q. And that is what you left with the circuit clerk.
A. Yes.
Q. And I believe, if I'm not mistaken, this would ha ve been
one of your incident reports signed by Susan Morse for Leake
County?
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A. Yes. This is the one referring to the phone call that she
got when I was driving.
Q. Okay. And, again, you didn't sign any of the Lea ke County
incident reports. Correct?
A. Well, yes, I did. I didn't do this one because I -- she
was on the phone and I was not party to exactly wha t
Ms. Henderson said. So I could not sign this one.
Q. All right. I -- and I'll let you respond. I hav e that one
and two others. And unless I overlook it, you didn 't sign any
of those, unless there's a fourth.
A. I only signed --
Q. I know Covington County --
A. Sorry.
Q. -- that there was a mistake, but -- you had signe d it. But
as far as Leake County, I don't see that you signed those.
A. I don't have in front of me to know how many I si gned, but
I only signed the ones where I actually heard the c onversation.
Q. And in this one which you --
THE COURT: You're losing me. Are you saying she d id
not sign 10 or 11 or 5 or 4? What are we talking a bout?
MR. WEBB: It would be Leake County, which was 10 a nd
11. I did not see any signatures on any documents for Leake
County.
THE COURT: Okay.
MR. WEBB: I could have overlooked them, but I did not
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see them in anything that I had, your Honor.
THE COURT: Okay.
MR. WEBB: And I guess if counsel has those, she
could, you know, raise that when she gets back up.
THE COURT: That's fine.
BY MR. WEBB:
Q. And then just finally, the -- in your notice here ,
Electronic reports request was granted, and we coul d pick up
the disk when we came back to view poll books. The fee was
$100 and did we want it? I guess that would have been from
Ms. Henderson. I said, Yes, we wanted it, and we would get the
$100 to her. I'm not sure if we would be -- I can't read some
of that. But, in any event, is that your writing o r
Ms. Morse's writing?
A. Ms. Morse's writing.
Q. Okay. And you did not return with the $100 or re turn to
request the information.
A. No. We were in other parts of the state.
Q. Okay. And so you don't know the fact that Ms. -- I have
the disk with me. Ms. Henderson prepared that disk . So it's
ready for you, and anytime -- it states here you we re going to
pick that up for the cost of $100. Is that your co mment?
A. That is Susan Morse's writing, yeah.
Q. Well --
THE COURT: The answer is you did not get it.
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Correct?
A. I did not --
THE COURT: You did not get it.
A. I did not get --
THE COURT: The disk that he's referring to.
A. No, I did not get the disk.
BY MR. WEBB:
Q. Did you advise the clerk that you would be pickin g it up?
A. No, I did not. Susan Morse was the person who is on this.
Q. Oh, I thought all of these were written by you.
A. No. Only the ones I've signed and that I witness ed were
written by me.
THE COURT: Exhibit 10 is signed by you. Would you
show the witness Exhibit 10 for us, please. That's not 11.
And 11 is part of what we're discussing, I grant yo u. So just
for the record, I believe the signature on 10, date d July 7th,
2014, is signed by you, ma'am.
MR. WEBB: Is that the Covington County or is that a
Leake County?
THE COURT: Leake County, Exhibit 10, that we had
copied for you.
MR. WEBB: Okay. That's the one.
THE COURT: Maybe you don't have it yet. Okay.
(DOCUMENT TENDERED TO COUNSEL)
THE COURT: Now, 11 may be a completely different
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story.
BY MR. WEBB:
Q. But, in any event, I -- maybe I misunderstood. I thought
you had the conversation with Ms. Henderson about t he $100 on
the telephone while you were driving.
A. No. I was driving, and Susan was on the telephon e.
Q. Okay. So you heard that conversation.
A. Heard Susan's half of the conversation.
Q. So is this accurate in the documents that you and your
counsel has presented that the statement was made t hat there
would be a return with $100 to pick the information up?
A. Yes.
Q. Okay.
MR. WEBB: No other questions.
THE COURT: Is there going to be evidence about wha t
the $100 got her -- or got them, if they had chosen to pick it
up?
MR. WEBB: Well, it was all of the information they
had requested in the only document they left with L eake County,
which was the four issues of the Democrat, Republic an voters.
There was no issue that's been produced as with reg ard to poll
books, redacted information in their written docume nt.
THE COURT: Fair enough. But the quantity -- there 's
an issue in the statute about at reasonable cost. And I just
was curious to know if somebody was going to put in evidence
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about what was being provided so that then I could evaluate,
assuming redaction is permissible, what a reasonabl e cost is.
It was a reasonable cost for copying. We all know that.
MR. WEBB: Right.
THE COURT: But the evidence is that the counties
wanted to charge for the redaction efforts also. A nd I'm just
trying to figure out -- I don't know and the record , more
importantly, does not know what Leake County has in the way of
voters. Okay?
MR. WEBB: Okay. Very well. And, in all honesty, I
would have to supplement that to the court. But I also would
like to end with the point that the only record tha t Leake
County received was for that information, which was prepared.
It had nothing to do with redaction of birth dates or poll
books or anything of that nature.
THE COURT: Okay. I don't have Exhibit 11 yet. So
thank you.
(COURT AND STAFF ATTORNEY CONFERRED)
THE COURT: Counsel, why don't one of you come up a nd
get copies of this Exhibit 11.
(COMPLIED WITH REQUEST)
THE COURT: Ms. Swensen, I'm now looking at Exhibit
11, and I do understand you did not sign this. But the top of
the first line of the incident report says "Request ," I guess
it says, "for AG Opinion in Writing." This is what you left
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with the county?
A. Those seem to be in the wrong order. I don't thi nk that
that attachment goes with that incident report. It 's not --
because it's just --
THE COURT: Okay. That's part of why I'm confused
too. How about this? Counsel for the plaintiff -- plaintiffs,
we don't have Susan Morse here, but I said in the i nterest of
speeding things along that I would receive this doc ument 11.
But document 11 does not appear to be properly stap led in the
sense that it's -- I've been given four pages. It is in the
bill of particulars as a four-page document, for th e record,
25-1.
But the first two pages look like an incident repor t,
you know, and the backup -- well, the first page lo oks like
Leake County. The second page looks like another i ncident
report to the -- as a request for the AG opinion in writing.
The third page is a -- fully handwritten page that says -- it's
entitled "Public Records Request, July 7th, 2014." And it
says, "To: Leake County Circuit Clerk, Mississippi . From:
Susan Morse."
The fourth page is at the top listed as -- or entit led
"Public Records Request, page 2," same date, July 7 th, 2014.
And it appears to be a continuation of page 3. It' s a public
records request.
I'm honestly questioning whether this is compiled
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correctly. It may be how counsel got it. But I'll just note
that it -- I don't understand why someone would giv e a request
to the AG to Leake County. I just don't understand that. And
the record does not reflect it. And it may not mat ter,
frankly; but I'm pointing out this is an inconsiste nt
collection. And so I'll assume at least that the f irst page,
third and fourth pages are together, should be toge ther, but
the second page is questionable. Okay?
MR. NIXON: I understand.
THE COURT: There's no foundation for the second pa ge.
MR. NIXON: I agree. I understand. In our haste t o
provide you the bill of particulars and get everyth ing --
THE COURT: Right.
MR. NIXON: -- there's probably a mistake made.
THE COURT: Okay. I'm just going to then say that
I'm -- I'm going to assume, until there's evidence --
admissible evidence to the contrary, that this page two was not
received by Leake County. I don't know if Leake Co unty has an
opinion on that or not.
MR. WEBB: Judge, I think, clearly, anything in the
incident reports that they wrote after the fact -- that was why
I was objecting as hearsay. That's the things they wrote. We
didn't -- Leake County --
THE COURT: I'm not -- we're past that, sir.
MR. WEBB: I know, but Leake County did not receive
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any of the incident reports.
THE COURT: Okay.
MR. WEBB: We received the public records request,
which is page 3 and 4 of the exhibit.
THE COURT: That's the question. Fine. Thank you
very much.
MR. NIXON: Judge, it's just a matter of housekeepi ng.
We have and brought with us all incident reports fr om all 20
people or ten teams that went out, even though many of them,
most of them we didn't think were relevant to the b ill of
particulars because you asked in relation to this l awsuit. So
these dealt with other counties. Counsel in the mo rning at
breaks has indicated that they'd like to have copie s of all of
them, and we would like to produce copies of all of them in --
just in the manner we received them from our client . So --
THE COURT: I'm doing that in the nature of initial
disclosures or discovery, however you want to chara cterize it.
MR. NIXON: Would you like for -- would you like fo r
us to -- one, we can just make copies today or, two , we can do
another kind of upload to PACER to make sure everyb ody gets
copies of everything.
Now, when we -- when we came, we knew we only had a n
hour, which is now a full day -- thank you -- but w e did not
bring all of the witnesses who did all of the witne ss reports
because we just wanted show the court samples of ki nd of --
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THE COURT: Under my theory of your preliminary
injunction motion, you didn't need to bring all the witnesses,
and that's fine. I would like you to make producti on of the
documents to the opposing side. And you can do it any way you
see fit, electronically, hard copy. You decide. Y ou two --
all the parties could decide. Obviously, electroni cally would
be a lot easier.
But I do not want this listed as an exhibit in this
hearing. It's beyond the scope of the hearing; and , frankly,
it will burden our record. And when and if it's ne cessary,
we'll deal with all those other incident reports. There's no
foundation for them unless a witness I'm seeing wro te it, or in
this case I'm stretching it a little for Ms. Morse.
MR. NIXON: Right.
THE COURT: But I would appreciate the production.
That would be great. But it's to the other side, n ot to me.
So not on PACER.
MR. NIXON: Would the court request that the incide nt
reports be provided with an affidavit from each of the
individuals who wrote them saying, "I wrote them"?
THE COURT: You can do it however you want. It's n ot
part of this hearing. Really, however you see fit. Okay. Do
we have any more questions for this witness?
MR. WALLACE: One, your Honor.
THE COURT: Okay.
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CROSS-EXAMINATION
BY MR. WALLACE:
Q. Ms. Swensen, I have a question about your trainin g and it
has to do with the document that True the Vote's co unsel put in
the record. And it's the only copy I have of it. I refer to
document 25-2 in the court file, and it is page 9 o f 25-2. I'm
about to hand it to you. You said in your direct t estimony
that as part of your training you had been given a memo from
Eades Hogue. And my question is: Is this the memo you
received?
(DOCUMENT TENDERED TO WITNESS)
A. In my memory, it looks to be the memo I received.
Q. Now, in the court file there is only one page. D o you
remember if it was a one-page memo or whether it wa s a longer
memo?
A. I was given a one-page memo.
Q. You got a one-page memo and you think that's it.
A. That's it. Looks like to be it.
MR. WALLACE: No further questions, your Honor. Th ank
you.
THE COURT: Are you offering that in this record?
MR. WALLACE: No, ma'am, I'm not offering it into
evidence. I just didn't want to have to go out to California
to ask her what it was. Thank you.
MS. McDANALD: Plaintiffs would like to offer it in to
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evidence, though.
MR. WALLACE: I don't think it is evidence, your
Honor, not of anything I know of yet.
MS. McDANALD: It was enough to be brought up, and it
is now a party opponent admission. He has cross-ex amined the
witness on that document.
THE COURT: We're talking about the one-page traini ng
document? What was the number? I missed it. 25-4 , I believe?
MS. McDANALD: 25-2 of the record.
STAFF ATTORNEY: 2.
THE COURT: 2.
MR. WALLACE: But if they want it in, your Honor, I
don't have any objection to it being in.
THE COURT: Okay. 25-2, the -- is that in the bill of
particulars?
MR. WALLACE: It's in the bill of particulars. 25- 2
is an exhibit to the bill of particulars.
THE COURT: What tab? I have a version that doesn' t
have the ECF stamp on it.
MR. WALLACE: It is a part of Exhibit 12, I think. I
don't know if they gave you tabs.
THE COURT: I do have that. Let me see. The
memorandum from Eades Hogue to Catherine Engelbrech t?
MR. WALLACE: Yes.
THE COURT: On the Beirne Maynard counsel stationer y?
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MR. WALLACE: Yes, ma'am.
THE COURT: July 6th memo?
MR. WALLACE: That's the sheet I was looking at. Y es,
ma'am.
THE COURT: Okay. One page? All right. You want --
okay. You're offering that one page?
MR. WALLACE: I'm not, but she is. And there's no
objection.
THE COURT: Sorry.
MS. McDANALD: Yes, your Honor. That would be
Plaintiffs' Exhibit 12.
THE COURT: For Madison County? Are you offering t he
one page or are you offering the whole two-page doc ument that's
been provided to me?
MS. McDANALD: Since the one page was the only that
was brought to the stand and cross-examined by the witness,
then just the one page.
THE COURT: Okay. Then we need a clean copy. Who has
a clean copy? We'll make a copy and we'll make it Plaintiffs'
Exhibit 12.
(EXHIBIT P-12 MARKED)
MR. SANDERS: Your Honor, if I may inquire, you sai d
it was two pages. I thought the witness --
THE COURT: Well, I have -- in the bill of particul ars
under tab 12 --
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MR. SANDERS: Oh, okay.
THE COURT: -- I have the cover letter.
MR. SANDERS: But the memorandum is just one page.
Right?
THE COURT: Yes.
MS. McDANALD: I'm happy to admit it all.
MR. WALLACE: What's the question?
THE COURT: No. For the purposes of the questionin g,
it was one page, and that's what I'm going to recei ve. That's
the only relevance. The rest of it isn't, at least at this
point. The foundation was laid on the second page.
MS. McDANALD: Right.
THE COURT: So that's what I'm receiving. All righ t.
Anything further for this witness? Plaintiff?
MS. McDANALD: Brief redirect.
REDIRECT EXAMINATION
BY MS. McDANALD:
Q. Earlier you testified that there was a $100 charg e for a CD
of voter registering information from Leake County. Why did
that seem high to you?
A. I work in California, as you know, in the electio n area.
We recently purchased, for example, 18 million voti ng records,
which is the entire state of California, with expan ded database
and with voting history on a disk for $30.
Q. And I believe there are not 18 million residents in
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Mississippi.
A. Not in Leake County.
Q. And not in Leake County.
A. No.
Q. Also on cross-examination you testified how you w ere told
on a Tuesday to come back on Monday by Covington Co unty Circuit
Clerk.
A. Yes.
Q. Did you also tell the circuit clerk that you live in
California?
A. Yes. When we introduced ourselves, we told her w e were
from California.
MS. McDANALD: No further questions.
THE COURT: Okay. Anything further? Okay. Thank
you, ma'am. You may step down.
A. Thank you, your Honor.
MS. McDANALD: Plaintiffs would like to call Julie
Patrick.
MR. SANDERS: And, your Honor, I understand the
court's previous rulings on this issue, but the dec laration
Ms. Patrick has given indicates she wants to talk a bout Tunica
County. Just for the record, we would object to th at.
THE COURT: Forgive me.
MR. SANDERS: I appreciate the court's ruling on th is
issue --
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THE COURT: I don't even know what the lady is goin g
to testify about. What's your objection? If you'd restate
that objection.
MR. SANDERS: Her declaration that we received
indicates she wants to talk about events in Tunica County, a
nondefendant here, a nonparty. So we object to tha t.
THE COURT: Okay. Yeah. I'm going to allow her to
testify to the extent she asked for documents.
(WITNESS SWORN)
THE COURT: Please be seated. Would you state and
spell your whole name for the record, please.
THE WITNESS: Julie Patrick, J-U-L-I-E, P-A-T-R-I-C -K.
THE COURT: Thank you. You may proceed.
JULIE PATRICK,
having first been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MS. McDANALD:
Q. Julie, are you a resident of Mississippi?
A. Yes, I am.
THE COURT: We're trying to go by last names, pleas e.
BY MS. McDANALD:
Q. Ms. Patrick, are you a registered voter?
A. Yes, I am.
Q. How long have you been a registered voter in Miss issippi?
A. I became a resident and a voter of Mississippi in September
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of 1996.
Q. And what county in Mississippi do you live?
A. I live in Marshall County.
Q. And as a resident of Marshall County, do you serv e on any
executive committees of Marshall County?
A. Yes, I do. I became involved in the Republican P arty as an
executive county member at the caucus of 2012.
Q. Earlier when Ms. Turner was testifying about exec utive
committees having a role in elections, did you unde rstand that
to -- testimony to be party executive committees?
A. Yes. I was concerned that -- they were saying th at -- that
it was actually the counties that had complete cont rol and that
the finger was being pointed back at us at the way that the
county had run the primary and the runoff election.
Q. But it's not just the Marshall County Executive C ommittee.
It would be the Marshall County Executive Committee of a
Republican party or a Democratic Party or any other party that
decided to join the party. Is that correct?
A. Would you repeat that?
Q. Yes.
THE COURT: A question, short.
MS. McDANALD: Sure.
BY MS. McDANALD:
Q. A county's executive committee, are those related to a
government role or are they a party role?
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A. It's a party role.
Q. Okay. Have you voted in any elections recently?
A. Yes, I have.
Q. And what election would that be?
A. That would be the most recent, June 3rd primary a nd then
the runoff June 24th.
Q. And in your role as a member of the Republican Pa rty
Executive Committee for Marshall County, did you ha ve any
responsibilities in connection with that election?
A. Yes. Shortly after --
Q. And what would those be?
A. Okay. Yes. Shortly after the -- I became a memb er of the
executive committee, I was nominated and voted to b e the
chairperson within six months of joining the party as the
executive -- as an executive member. So --
Q. What year was that?
A. That was 2000- -- that was 2012.
Q. Okay.
A. Yes. So I was told that my primary role would be to run
the primary. And so when I was given this duty, I started to
investigate how I was supposed to do this. And I w as told that
we had always signed with the election commissioner s a contract
for them to run it for us.
Q. Okay. And have you done anything since the elect ion to
follow up on the election results?
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A. Yes, I have. We -- we had retained the rights of
certification of the vote. So shortly after the Ju ne 3rd, I
was -- had the first experience of what it was to c anvass the
vote and then sign the certification, which we did on a
Wednesday following the June 3rd primary.
We canvassed the vote the day afterwards, and then we
waited for the voter -- the photo ID affidavits to come in.
And then we signed the certification at that point. So I had
become familiar with what was supposed to be in bal lot boxes
and how they were sealed. That was basically led b y the hand
by our circuit clerk, Lucy Carpenter.
Q. Sorry. When you say, "We retained the right to c ertify the
vote," who are you talking about when you say "we"?
A. The committee for Marshall County.
Q. And in that role were you able to review the ball ot box
materials?
A. Yes. I was able to review it for Marshall County , and then
I -- also as the committee chairperson, I had seen that there
was some deep concerns following the runoff. And I was
contacted by members of my committee that told me n ot to
certify the vote, that they were concerned that the re was too
much irregularities.
And so I relayed those concerns to our circuit cler k. And
we delayed until -- to canvass the vote until such a time that
it was Monday following the election at which time I also had
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the opportunity to look at the poll books. It was a very brief
run-through just to see if there was any cross-voti ng. So I
did actually look at the poll books there.
And then following looking at the poll books, I wen t back
for -- on behalf of the McDaniel campaign to do a p oll book --
I mean -- I'm sorry -- a poll box review. And we w ere told
that I would not be allowed to do that for Marshall County.
The next day I went to Tunica County and was able t o review the
poll boxes in Tunica.
THE COURT: I'm missing something. You went back t o
the county -- to Marshall County --
A. On behalf of the --
THE COURT: -- to review poll boxes?
A. Yes, the poll box --
THE COURT: What is that?
A. That is the boxes that were to be sealed.
THE COURT: The sealed --
A. Right.
THE COURT: The ballot boxes was referred to --
A. Yes. I'm calling the them poll boxes, but ballot box is
correct.
THE COURT: Okay. And you said -- they told you wh at?
A. I was told that because I was the chairperson on the
executive committee, the circuit clerk called the S ecretary of
State's Office and confirmed that I would not be al lowed to be
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there on behalf of the McDaniel campaign. I would not be
allowed to review the poll books. In fact, I was t old there
would be no poll books that would be reviewed at th at date and
I would not be able to look at any of the absentee ballots.
THE COURT: Okay. What does this have to do with t his
case?
MS. McDANALD: I'm getting to the request that she
made to review documents and absentee --
THE COURT: Then let's go there. She's part of the --
she was challenging on behalf of the McDaniel campa ign. And as
I understand her testimony, the testimony was that as an
official of the party that sponsored the election, she's
supposed to essentially be neutral and not be takin g a stand or
whatever, challenges for one side or the other. Bu t what does
that have to do with this national statute I'm worr ied about?
You don't have to answer. I just want you to get t o something
that has to do with the national statute. I'm not here to
worry about state law and the stuff about the McDan iel campaign
or any other campaign. Okay?
I guess I should be not looking at you. I'm sorry. I
should be looking at you. The facts are the facts. I respect
that. I just want you to understand, I only care a bout the
federal statute -- that's where I am -- and how it interplays
with the state statute. Okay?
A. Right.
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THE COURT: So let's see if we can get to that
subject.
A. Okay.
BY MS. McDANALD:
Q. Outside of your role as a member of the executive committee
for Marshall County and just as Ms. Patrick, Ms. Pa trick, have
you requested records, either poll books or access to absentee
applications or the absentee application envelopes which carry
the ballot in it, have you requested access to thos e sort of
documents and been denied by a county?
A. Yes, I have.
Q. Which county?
A. Both Marshall County after the initial canvassing the vote
and then also in Tunica County.
Q. Turning to Marshall County, when -- was your requ est to
review documents made after the runoff election?
A. Yes, it was.
Q. Was your request made to the Marshall County Circ uit Clerk?
A. Yes, it was.
Q. Was your request made in writing --
THE COURT: Let's split that. Let's -- non-leading .
BY MS. McDANALD:
Q. Was your request made in writing or was it verbal ?
A. It was verbal.
Q. What response did you receive?
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A. My response was that the circuit clerk had been d irected by
the Secretary of State's Office that those would no t be made
available.
THE COURT: I'm sorry. What were you trying to see ?
Poll books?
A. Poll books.
THE COURT: And when was that?
A. That was --
THE COURT: I know it was --
A. I guess that was June the -- it was the -- I'm tr ying to
remember. Was that June -- July the 7th. That was --
THE COURT: Okay.
A. -- a Monday.
THE COURT: July 7th was Monday?
A. Yes.
THE COURT: Okay. And you were there in your perso nal
capacity or your Republican chairman capacity --
A. I was --
THE COURT: -- for Marshall?
A. I was actually there for the ballot box review.
THE COURT: Which was the campaign.
A. Yes.
THE COURT: Okay. Thank you. This is on Monday, t he
7th.
A. Yes.
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THE COURT: Okay. What's the next question?
BY MS. McDANALD:
Q. Were you able to receive copies of the poll books ?
A. No, I was not.
Q. What was the reason you were not provided copies of the
poll books?
A. I was just simply told that they would not be mad e
available. I was not given an offer to purchase th em for after
redaction. I was just told they would not be made available
today, but they might be for a private request, ind ividual
request, but would not be allowed during the ballot box review.
Q. Okay. Have you made any subsequent requests to r eview the
poll books from the Marshall County Circuit Clerk?
A. No. It was my understanding that somebody else f rom the
campaign was taking over, and then I went over to T unica County
at that point.
Q. In Tunica County have you made any requests for i nspection
of documents?
A. Yes, I did.
Q. Where was that request made?
A. That was made at the circuit clerk's office there in
Tunica.
Q. And what documents did you specifically request t o review?
A. I requested to review both the poll books and the ballot
box.
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Q. What was the -- was the request made oral or was it in
writing?
A. It was oral.
Q. And who was the request made to?
A. It was made to Sharon Reynolds, the circuit clerk , and then
the next day also to the deputy clerk. And I don't recall her
name.
Q. Sorry. Do you recall the date that the requests were made?
A. That was the next day after. So that would be Ju ly the 8th
and July 9th.
Q. What was the response to your request?
A. We were led into the room to review the ballot bo xes, at
which point we discovered that they were not sealed . And again
we were told we would not have the poll books made available
during the review.
So we discovered that the ballot boxes were almost empty
and in some cases there was no sign-in sheets. The re was no
poll-worker tally sheets. All the affidavit ballot s were
removed. And there was -- there was absentee ballo ts that were
in some of the boxes that still had the -- that sti ll had the
votes inside, the ballots. They were -- they had b een opened,
but the ballots had not been removed.
And so -- and the problem with not having the poll- worker
tally sheet is I was not able to see where -- how m any ballots
were rejected or accepted. It was just there was n o tally
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sheet to be able to compare. So we had to do a bit of
investigative work. And I had to request the sign- in sheets
that were brought in to me separately that should h ave been in
the ballot boxes sealed. And then the poll-worker tally sheets
were gone. And I asked who had removed all these - - all these
records.
MR. PIZZETTA: Objection, your Honor. Relevance.
Many of those are not NVRA documents.
THE COURT: Okay. Move on.
BY MS. McDANALD:
Q. I think I discussed the situation involving the b allot
boxes. From Tunica County were you able to review the poll
books?
A. No, I was not.
Q. And was an offer made to you that you could ever review the
poll books?
A. Not -- no, not in Tunica County. In Marshall Cou nty I was
told that as a private citizen I could come back an d request
those.
Q. And when you came back and -- did you ever ask an y
questions about whether or not birth date informati on would be
provided along with the poll books?
A. I was not told why they were not allowing us to l ook at the
poll books at that time, and I just felt like that was up to
the campaign attorneys to sort that out.
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Q. Sure. But Tunica County just flat refused your r equest to
review the poll books?
A. That's correct.
Q. So you were not told to come back to Tunica Count y to
request them again.
A. No, I was not.
MS. McDANALD: No further questions. Pass the
witness.
THE COURT: Okay. Who's going to cross?
MR. WALLACE: I have a quick question, your Honor.
CROSS-EXAMINATION
BY MR. WALLACE:
Q. The court asked you in what capacity you went to these
counties. I'm going to read to you from Section 23 -15-911 of
the Mississippi Code, which says that "After the el ection, any
candidate or his representative authorized in writi ng by him
shall have the right of full examination of ballot box." When
you went to Marshall County, were you a representat ive
authorized in writing by Senator McDaniel?
A. Yes, I was.
Q. And were you acting in that same capacity when yo u went to
Tunica county?
A. Yes, I was.
MR. WALLACE: No further questions, your Honor.
THE COURT: Anything further? I think you better
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quit. If you have something more pertinent, you ma y proceed.
MS. McDANALD: No, your Honor. Thank you.
THE COURT: Thank you. Anybody have anything else?
Okay. Thank you all. Ma'am, you're excused. Anyt hing further
from plaintiffs?
MR. NIXON: We have no other witnesses, your Honor,
for you today.
THE COURT: Okay. Thank you. So the plaintiffs re st,
I take it.
MR. NIXON: Yes, your Honor. Thank you.
PLAINTIFF RESTS
THE COURT: Defense witnesses, other evidence?
MR. PIZZETTA: Your Honor, we're not going to call our
witness. We think Ms. Turner answered the question s on --
THE COURT: Okay. Counties, any other witnesses? No?
I'm seeing all the heads shaking left to right. Re publican
Party?
MR. WALLACE: The Party has no witnesses, your Hono r.
THE COURT: Okay. Then the hearing record is close d.
I don't believe there are any documents that we're owed as
exhibits. I know I did leave open the question of the bill of
particulars; and in light of what I've received so far in
evidence during this hearing, I think that I'm goin g to sustain
the objection as to lack of foundation on the docum ents in the
bill of particulars that was not -- to the extent t hose
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documents have not been offered at this hearing.
I have exemplars of the documents that True the Vot e
prepared, the incident reports and everything else. I don't
see any prejudice here. I've got the testimony to the extent
that there -- requests were made by citizens asking for
information. To the extent that there are party
representatives or party -- or candidate representa tives, I
question the relevance of that. To the extent you have a view,
you can comment.
But, anyway, is there any -- in light of that rulin g,
is there anybody that wants to offer anything else in the way
of documentation? I'm really not comfortable, Mr. Nixon,
receiving True the Vote complaint or incident repor ts without
authentication in light of some of this.
MR. NIXON: I laid the foundation, at least I thoug ht
I did, with Ms. Engelbrecht with regard to them bei ng business
records.
THE COURT: But they contain all sorts of hearsay
within the business records. And they're incident reports.
This is not an ongoing business where there are emp loyees
creating records at or about the time of the event for the
purpose of business ongoing. These are the equival ent of
accident reports. They really are. And there's a qualitative
difference between accident reports, investigation- type
reports --
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MR. NIXON: Right.
THE COURT: -- and typical business records. So I
respect your point of view. I'm not willing to acc ept those
records now. If that should become an issue, then we'll deal
with it down the road.
MR. NIXON: Well, as the court knows, one of the
reasons why we have provided them to everybody is t hat they
exist. And they certainly give everybody -- I mean , they were,
in fact, created.
THE COURT: Correct.
MR. NIXON: And the court asked for Tell us what you
have.
THE COURT: And I view it in the form of discovery.
So I appreciate very much your turning this materia l over. It
is important that it be produced. My problem is -- well, let
me say this. I will take notice, and I'm aware of the Redwell
full of incident reports in folders. You want to t ell me how
many there are, fine.
But I am not prepared to just receive massive amoun ts
of hearsay when I know from the record that's being created
here that some of the people are party representati ves and
candidate representatives and some are out-of-towne rs. So you
have different circumstances and different bases fo r the
requests. So I am not going to just take into the record these
20, 30, 50, whatever it is, incident reports withou t any
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foundation. I'm just not doing it. Okay.
MR. NIXON: And I really don't have a problem with
that. The burden under the NVRA is did you make a request and
did they comply.
THE COURT: Right. There's a consistency to the
responses. And I think you've made enough of a rec ord that we
know that at least these eight counties are aware o f the ones
that you made requests of that are in this record a re. We know
where the State is. Most of the counties' people s aid, at
least by report, The State said I shouldn't produce this stuff.
So --
MR. NIXON: I'm fine.
THE COURT: -- I think it's cumulative in that resp ect
also.
MR. NIXON: I agree.
THE COURT: Okay.
MR. NIXON: But I will provide --
THE COURT: If that turns out to be the seminal fac t,
I'll let you deal with it. We'll have another conf erence and
I'll deal with it.
MR. NIXON: But I will provide them all.
THE COURT: Thank you.
MR. NIXON: Because they do exist and everybody oug ht
to have them. We have nothing, but Let's take a lo ok at the
whole thing.
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THE COURT: I've already seconded that. I'm expect ing
that. That was something we agreed on earlier. So yes. But
that's different from putting it in this record. T hat's my
point. Okay.
I'll hear some argument from each side on exactly w hat
it is plaintiffs want and what it is in their statu tory
analysis, and then I'll hear from defense. The Sta te can go
first and then any county that wants to supplement and the
Party may do that. Let's start -- it's 4:04. Do y ou want a
break? Yeah. Okay. Break it is.
MR. PIZZETTA: Your Honor, for planning issues, try ing
to figure out where we go with all of this. Are yo u
anticipating briefing on this in the short time, or oral
argument today is our only shot at telling the cour t?
THE COURT: No. I want some oral argument, but I h ad
told you that you would have a chance, another week or so. I
said -- in the conference I said two to three weeks . But I had
figured two, give or take a couple of days, for bri efing.
But, yes, I did want some argument today because I' m
assuming the parties think this is something I shou ld get
cracking on. And, therefore, I'd like a heads up. Frankly, I
know where plaintiff is -- or plaintiffs are. I'm not sure
where the defense is in light of some of the author ity
plaintiffs have cited.
MR. PIZZETTA: Very well. I just wanted to make su re
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it wasn't our only shot. I'll proceed with that.
THE COURT: It's very much not your only shot. But I
do expect you're going to come up with a briefing s chedule. I
think I had left that with you that maybe you'd hav e a
suggestion on that. All right. Let's take a ten-m inute break.
Okay.
MR. NIXON: Will we argue first or will the defense ?
THE COURT: I'll give you rebuttal because they're
going to raise other issues probably.
MR. NIXON: Thank you, your Honor.
(RECESS)
THE COURT: Please be seated. Okay. How much time do
you think you'll take? Is it you, Mr. Nixon, that' s going to
do the argument?
MR. NIXON: Yes, your Honor.
THE COURT: How much time? You're going to get
rebuttal because I know the defense will argue thin gs that you
won't have raised. And you have a lot of briefing. So I just
want to know what you're thinking.
MR. NIXON: I think ten minutes or less.
THE COURT: Okay.
MR. NIXON: And, hopefully, I can give you back som e
of the time.
THE COURT: All right. Let me say to you in the
spirit of telling you what I'm interested in, I nee d to
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understand, among other things, why exactly you thi nk that
certain -- each of the types of materials are impor tant to you
from the perspective of the statutory scope of the, you know,
publicity or whatever it's called, the public discl osure
provision? Okay? Keep that in mind as you argue. Thank you.
And you may proceed whenever you're ready.
ARGUMENT ON BEHALF OF THE PLAINTIFFS
MR. NIXON: Thank you, your Honor. May it please t he
court, counsel. Judge, thank you so much for heari ng us and
giving us way more than the allotted time that we w ere all
anticipating. It's clearly a recognition of the si gnificance
of this case.
THE COURT: I think you might want to thank the
defense, because it became clear they were going to take less.
MR. NIXON: Thank you all. Thank you all. Thank y ou.
We have been -- people in Mississippi have been ver y gracious
hosts, and I thank them for all of that.
Let me remind everybody and sort of bring us back t o
really why we're here. This is a fundamental basis of
democracy. It starts with the ability of people to vote, to
establish who governs them, what public policy is c reated, how
they choose to live together. It's the heart of de mocracy.
It's the core public function, particularly in our country. It
is the bedrock on which all other democratic princi ples are
based.
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Former President Carter and Senator Baker got toget her
and did a study of voting in America. And one of t he
conclusions they reached was we need to do everythi ng to
protect the validity of elections because, as Presi dent Carter
wrote, if elections are defective, our entire democ ratic system
is at risk. So a public debate was held in the ear ly '90s
culminating in the passage by Congress of the Natio nal Voter
Registration Act.
The debate weighed various public policy interests and
came to the conclusion that certain things must be made public
and that citizens should have a private right of ac tion in
order to protect the integrity of the fundamental c ore of our
democratic system, elections. The issue of what pr ivate
information could be made public and how that balan ced against
election integrity was debated and decided and culm inated in
the passage of the National Voter Registration Act and then the
regulations that came about afterwards.
Birth dates were debated. Social Security numbers
were debated. And it was determined that birth dat es were
going to be made public in the protection of voter integrity.
That information is required by each state to be co llected and
made public as part of the registration process. T hat's
11 CFR 9428.4. That issue has been -- it's clearly determined
for us today.
One of the things that I thought was very interesti ng
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is that the Secretary of State, Ms. Turner, when as ked, May I
receive voter registration applications with birth dates
unredacted? she said yes. I can have that information now.
Anyone can request that of any state. That's publi c record
today.
The concept that we -- that the State of Mississipp i
is not going to allow birth dates to be released as relates to
voter rolls when they're releasing everything else and I can
obtain that information through another request, th e idea we're
here to protect the privacy rights of the citizens of the state
of Mississippi rings hollow, particularly in light of the fact
that this was -- has been previously debated and de cided as a
matter of national public policy.
More importantly and thankfully for this court, thi s
issue has already been decided by the Fourth Circui t. The
Fourth Circuit held in Vote for America v. Long that birth
dates are to be produced; that Social Security numb ers are not.
But we're not asking for Social Security numbers. We're asking
for the information.
And so, really, as it relates to the National Voter
Registration Act claim that has been asserted by th e
plaintiffs, the plaintiffs needed to prove two thin gs -- and
they are clearly undeniable -- that they made a req uest and the
request was denied.
And I think it's important and I want everybody to
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note and I think that all the plaintiffs' witnesses said or
inferred everybody was very polite. This is not an issue.
There's no acrimony. There's no malicious intent. There's no
nefarious undertone. It's that the counties believ ed and the
people who denied the requests believed they were d oing the
right thing. They thought they were acting correct ly.
That's okay. That's why -- I've only knocked that off
three times -- that's why we're here. That's why w e have this
ability to come in a peaceable setting and discuss this issue.
Now, the Fifth Circuit has cited the Long case twice
on different basis, but approved the decision.
THE COURT: The Steen case really, really factually is
so distinguishable that --
MR. NIXON: Right. That's right.
THE COURT: -- I'm not sure we should spend a lot o f
time on it.
MR. NIXON: Nor do I want to, other than the fact t hat
the Fifth Circuit acknowledged Long and said this is what
they -- this is, you know --
THE COURT: All those guys are buddies. I'm just
teasing.
MR. NIXON: But the -- but I point to those cases
because I think they're very helpful for the court. You don't
have to plow new ground. You don't have to decide anything
different. You have to simply acknowledge this is what was
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done.
And the Fourth Circuit case, the Long case, I think
was well reasoned. And we cited a very -- very app ropriate
public policy statement out of there: We, the Four th Circuit,
aren't going to change the public policy of the cou ntry. That
issue's been decided for us. We have to just simpl y
acknowledge it.
And that's all I'd ask this court to do is to
acknowledge the public policy of the country, that Congress
decided that birth dates are an important identifie r. We don't
have to rehash, we don't have to reagree, we don't have to
reprove why. We just have to acknowledge that they are. We
have acknowledge that the information is totally pu blicly
available even through the Secretary of State's Off ice which
doesn't want to produce it.
But, more importantly, here's why we're here. True
the Vote has a private right of action. They have an
informational injury. It's totally recognized. It 's exactly
the same claim that was brought by Project Vote/Vot e for
America.
The court is also, I'm certain, very -- is very cle ar
of the problem that we have in Mississippi. Every single
county does what it does in its own way. And as th e Secretary
of State testified, this is a bottom-up situation.
Well, the National Voter Registration Act contempla ted
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this problem and said, no, every state's got to des ignate a
chief elections officer. Mississippi acknowledged that and in
Mississippi Code 23-15-211-1 made its own Secretary of State
the chief elections officer for compliance.
What we have here -- and it was completely obvious --
is that, as my dad used to tell me, "Son, that's no t a reason.
That's an excuse." What we have here is an excuse. I don't
have the records today. They're over here . But then , I don't
have them. You sued me here, but you shouldn't hav e sued me
over here. Everybody's got a reason why they shouldn't be in
this case. But everybody at one point had their ha nd on the
poll books, had their hand on the voter roll. But no one wants
to be ultimately responsible for the production of those
documents.
Well, the National Voter Registration Act is very
clear. "Each state shall maintain for at least two years and
make available for photocopying at a reasonable cos t all
records," not just some, not just the ones you thin k are
appropriate, "all records concerning the implementa tion of
programs and activities conducted for the purpose o f
ensuring" -- and here's the key words -- "the accur acy and
currency of official eligible voting."
That's a broad term, and here's what it means. It
means the voter rolls. It means the voter poll boo k, Exhibits
D-6 and D-5, where it's indicated -- that's only th e active
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voters, because all of that is used to ensure the c urrency and
accuracy of eligible voting. And whether you get t he V-28's
(sic) or whether the parties switch them, those boo ks are used
to determine the eligibility of someone to vote in a runoff
election and the accuracy of the eligibility of vot ers.
The absentee ballot provisions in Mississippi are
restrictive, unlike Texas where we just have a broa d period and
anyone can show up. Not here. You have got to hav e a reason,
statutory reason. Age is one of the reasons. Birt h dates
matter. There's a lot of other reasons, but you've got to fill
out the form. And then looking at the form at the reason why
you want to vote determines the accuracy and the el igibility of
the person to cast an absentee ballot. The envelop e signatures
have to match the application which has to match, i n fact, the
application to register. That's why it's all neces sary.
And when asked, Well, what about the overseas ballots
that are only governed by federal statute, it's onl y a federal
application ? She said , Sure.
Do they contain birth dates?
Absolutely.
Can I see them?
Yes, you may, unredacted, of course.
This is a hide -- hide the shell game, and that's
not -- that flies in the face of everything about m aking sure
voting is done fairly, accurately and the election is valid.
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If you don't do that, if you don't ensure valid ele ctions, you
encourage invalidity. You encourage fraud.
Now, I want to make sure I touch on the points that
you mentioned.
(COUNSEL EXAMINED DOCUMENT)
MR. NIXON: Okay. We talked about poll books and t he
other information. There's five things that we wan t. The
voter rolls, the poll books, the absentee ballot ap plications,
the absentee ballots envelopes and the overseas app lications to
vote.
THE COURT: You want absentee ballot --
MR. NIXON: Applications.
THE COURT: -- applications and envelopes.
MR. NIXON: Yes. Voter roll.
THE COURT: Applications and envelopes.
MR. NIXON: The application for the absentee ballot
and the envelope. Now, if it -- if it helps the co urt, most
all of this information is available currently from the
Secretary of State in their SEMS system that can be printed out
and handed to us in a disk.
THE COURT: Correct. There's no question about tha t
after the fact, after a certain number of weeks or months after
an election. Your people went in immediately after the
election, sometimes three days, other times a coupl e of weeks.
And they demanded what I perceived to be -- maybe I 'm wrong and
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you're welcome to correct me, but what I perceived to be very
burdensome requests before stuff was computerized.
And so that's -- that I think is some of the concer n,
right or wrong. I mean, you can't get blood from a stone. And
when the people who want to start making all these demands want
to start paying for this labor, fine. But right no w -- I'm
sure it would be better if it was computerized more quickly,
and hopefully that will be the -- will come in soon , in short
order, but --
MR. NIXON: The poll books were on computer before the
election.
THE COURT: The poll books were on computer --
MR. NIXON: The overall poll books.
THE COURT: Yes, yes.
MR. NIXON: The voter rolls. The voter rolls.
THE COURT: The voter rolls, yes. The poll books
probably were too. That's the true.
MR. NIXON: Right.
THE COURT: But they're not -- as I understand it, the
indication of who voted, which I don't think is -- goes to
eligibility unless there's a runoff --
MR. NIXON: That's --
THE COURT: That is there's a runoff a primary --
MR. NIXON: Which is why we're here.
THE COURT: Right. Right. Do you concede that the --
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what would be necessary to determine eligibility of voters on a
current basis is in part -- and it may be at the ma rgin, but in
part dependent on what the election is that's -- yo u're
upcoming or otherwise?
MR. NIXON: Absolutely no. If you recall, the
Secretary of State said that a V-28 -- it is the Se cretary of
State's recommended procedure that a V-28 report be run before
the runoff election.
THE COURT: Right.
MR. NIXON: So who voted -- so when we went --
THE COURT: That's three weeks; it's not three days .
MR. NIXON: No, but we didn't ask right after the - -
we didn't ask for that information until after the runoff. So
on June 24th there was a runoff. We -- and the V-2 8 was
printed --
THE COURT: Right.
MR. NIXON: -- and available. Either they print it or
they switch poll books. But, remember, the recomme nded deal is
to run a report and then just hand everybody a repo rt.
THE COURT: Right.
MR. NIXON: So, no, I don't agree that that
information is available at the time of the electio n. We're
asking for information now -- June 24th to July 7th . We're
asking for two weeks later.
THE COURT: Okay. But I think my question was
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unclear. I understand why the poll books from the primary are
necessary in order to determine eligibility for the runoff.
MR. NIXON: Yes.
THE COURT: And putting aside preelection versus
postelection, because, obviously, this has got to d o with
election challenges in the longer run, but that's n ot what the
statute says. The statute says eligibility -- it s ays currency
of official list of eligible voters.
MR. NIXON: Yes, ensuring the accuracy and currency of
official list of eligible voters.
THE COURT: Right.
MR. NIXON: And that -- and here's -- the point is
further brought home. No one's saying we can't hav e the
information. No one's saying it's too hard to prod uce. They
just said, We don't want to produce it with birth dates.
THE COURT: Well, okay. I'll hear from them on tha t.
MR. NIXON: Fine. So, I mean, so when you -- reall y,
the things that we want, we asked for, weren't burd ensome, are
available that they can just give it to us on a dis k in a short
amount of time, which is how we -- how True the Vot e would
prefer to have it anyway.
THE COURT: Why is a polling book -- give me the --
give me the chronology and the context for why a po lling book
is necessary to determine currency of official list s of
eligible voters after an election?
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MR. NIXON: The polling book is crucial if there's a
runoff.
THE COURT: That's the point.
MR. NIXON: And there was.
THE COURT: That is precisely the point. When ther e's
a runoff, absolutely, I understand your position. When there's
not a runoff, I'm trying to figure it out.
MR. NIXON: Well, what happens when there's not a
runoff, that information is received back eventuall y to the
county -- to the circuit clerk.
THE COURT: And it goes to that -- it goes to that,
whatever it is, 128, you know, the unofficial and i t goes up to
the voter --
MR. NIXON: The voter rolls. And then from the
Secretary of State Office you say, May I please have a printout
of your voter rolls ? --
THE COURT: Correct.
MR. NIXON: -- which includes who voted in the last
election, and that's all done within days. I mean, the
Secretary of State said --
THE COURT: It has to be certified I think.
MR. NIXON: Right, they have to certify it. But wh at
happens here and it's -- and the request -- remembe r as we
started today, the requests are made in order to de termine the
validity of the election, because here's what we do . If we
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create a system where no one can look --
THE COURT: No one can what?
MR. NIXON: -- can look at the records in a timely
fashion in order to question the validity of the el ection, we
invite fraud because elections can't ever be questi oned.
THE COURT: Right.
MR. NIXON: So the urgency is people are going to h ave
a right. That's why the whole NVRA scheme was crea ted.
THE COURT: All right.
MR. NIXON: And that it is held by the Secretary of
State and available who voted, when they voted, whi ch party
they -- primary they voted in, how many times the l ast --
that's all ready available. And so the only -- the only
argument here is you can have it; you just can't ha ve it with
birth dates. But birth dates has been -- that figh t had
been --
THE COURT: I heard this again. But why are birth
dates so important to you when there is no question about the
name and the county or whatever?
MR. NIXON: It is -- there are only -- when you hav e
so many people, millions -- some states have -- lik e
California, 18, Mississippi maybe 8-, 700,000, mayb e a million
registered voters. The problem with names and addr esses,
people move and you don't always -- you know, there 's a
national database to try to catch up with folks, bu t we all
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know that it's -- and so the one identifier, the on e
identifier -- and it is not uncommon --
THE COURT: But here's the point. The combination of
birth date, name, and address is a prescription for -- if the
information is released --
MR. NIXON: It's a public record now.
THE COURT: It's harder to get. And the point is t hat
is information which, frankly, in my other hat as a criminal --
as a judge in criminal cases, is information that c an easily be
abused and is sought to be protected to protect ind ividuals
from fraud, et cetera. So we have a competing inte rest.
Nobody is debating your primary point which is the integrity of
voter rolls is crucial to our system. It's crucial for a
variety of reasons, among them that there is not vo ter fraud.
MR. NIXON: Then I would just --
THE COURT: More importantly not -- that people not --
not more importantly, but as important, that people are not
prevented from voting which, frankly, was at least as big a
reason for the statute.
But the concern that I have from your narrow
perspective is that you really know and I know, you and True
the Vote does not need birth dates for the millions and
millions of people that they are collecting data on in our --
in their computers. They don't need it to ascertai n voter
fraud. They want it for some reason. I don't know what it is,
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but they don't need it for ascertaining voter fraud .
If you really want to ascertain voter fraud in a
particular election, which is all the records are g ood for
because we do have a transient society and a year o r two later
the records are no longer current -- frankly, they' re stale.
So you have to go get them again.
The point is that if you're really looking into vot er
fraud, you can tell without the birth dates, you ca n tell from
the county and the address -- the name and the addr ess what
the -- whether someone is -- things were awry. And then if you
have two people with the same name or you have an i ssue where
you need to dig a second level, then I understand t he birth
dates are critical.
But I'm just posing to you that to get the birth da tes
as a matter of course for everybody in this room, f or everybody
in town who's a registered voter, for everybody in the state of
Mississippi or wherever, that's a lot of informatio n for just
Joe Blow to have.
Anybody who's rich who wants to go down and get all
this information can get it. All they have to do i s ask for it
under the statute and -- as interpreted by you. An d they don't
have to really be worried about voter fraud. They just need to
go ask for it and they get it.
So how do we know as the members of the public that
we're not -- that everybody and their mother isn't going to
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have this data out there to abuse? Okay?
MR. NIXON: I am not here to have that or in any wa y
to suggest that there are not curmudgeons in the wo rld who
would abuse --
THE COURT: Curmudgeons? We're going to call them
fraudsters. We going to call them people who want to abuse the
system.
MR. NIXON: Thief.
THE COURT: We going to call them people who want t o
use it for non -- or inappropriate purposes, to sen d mailings,
to send -- to bother people. You know, I grant you this may be
something Congress needs to pick up on; but the rea lity is
today, this statute is just asking for abuse.
And maybe Ms. Engelhart (sic) has great integrity.
She says she has millions and millions of pieces of
information. Sounds like it's the NSA. Okay. Fin e. She's
paid to have this. She's gotten this information. She wants
it. But maybe somebody cracks into her computer.
MR. NIXON: That's not a basis to deny a request.
THE COURT: Maybe not, but I'm going to just use --
since you guys have used this as an opportunity to express
policy, I feel like it's important that at least we have the
real discussion. I appreciate very much the argume nt.
You know and I know that there's no answer to this
question in this statute. But I think it would be of concern
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that the statute be interpreted as broadly as you a ll propose
when it's coupled with gargantuan requests for info rmation
about millions of voters and people. The state of California,
she got that information for 30 bucks? Wonder how the
California people feel about that?
MR. NIXON: And it includes birth dates.
THE COURT: Right. I understand.
MR. NIXON: Right. The -- the policy issue that yo u
and I are having today is really not determinative of how this
court should rule.
THE COURT: It may depend on how the statute is
interpreted. There are a couple of terms in there that you
apparently aren't going to address, but I'm concern ed about
this. You have talked about the legislative histor y. I'm not
going there about that now. You haven't briefed it , and I
don't know what you're referring to specifically.
MR. NIXON: It's the Long case. The Long case refers
to it, and I --
THE COURT: Well, I've read the Long case carefully --
actually more than once -- and I'm familiar with wh at's in
there. They refer to it only briefly in passing. There's no
detail there, but --
MR. NIXON: If a person in Mississippi registered t o
vote using a federal voter registration application , birth
dates are --
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THE COURT: Yeah, it's in there.
MR. NIXON: If a person registers to vote in
Mississippi using a Mississippi voter registration application,
the application itself is a public record and we ge t them, the
birth date's available, not to be redacted.
THE COURT: Is that true or is Mississippi law
different?
MR. NIXON: No. Secretary of State just said that.
She said that today.
THE COURT: She did say that? I wasn't sure which
record she was referring to.
MR. NIXON: So we're really -- this isn't about bir th
dates. It's about are we going to let somebody inv estigate our
election. That's what this is about. This is -- a s my dad
said, it's not -- this is not a reason. You're off ering me an
excuse. This is an excuse.
THE COURT: Maybe. Okay.
MR. NIXON: It's an excuse. So, Judge, I think I'v e
addressed the reason why we have poll books and the other
documents. We have standing. I think we've addres sed that.
And we've briefed that issue.
And it's -- and so just one other thing about why - -
why who all is here is here. We didn't sue every c ounty in
Mississippi, and we didn't sue every election -- co unty
election board in Mississippi because it's -- you k now, either
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somebody would have shot me or maybe you'd have thr own
something at me. But the -- but if you listen to t hem,
apparently, I have to sue every county.
THE COURT: Well, I overruled those objections.
MR. NIXON: Yeah. So -- but my point is, the reaso n
why we didn't sue more people and we limited it was so that we
would have a representative example of what needs t o be -- we
thought that whatever order was entered by this cou rt the other
counties would be cognizant of and would follow.
THE COURT: I appreciate that. Is there a reason w hy
you didn't introduce any evidence on two thirds of the counties
you did sue?
MR. NIXON: Yes. When we started today, we thought we
had an hour. And we just wanted to do boom, boom, boom, boom,
boom --
THE COURT: Okay.
MR. NIXON: -- and just have very narrow examples.
And so rather than -- I mean, we did not anticipate , you know,
providing evidence for each county fully to fully d evelop that
county, because I respect the --
THE COURT: But you did -- I appreciate that. But you
did introduce evidence on counties with people who aren't
here -- or counties that you didn't sue. So I assu med that you
had some subset of information about these counties .
MR. NIXON: It mattered which witness was available .
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THE COURT: Oh.
MR. NIXON: We had some witnesses with doctors'
appointments and --
THE COURT: Okay.
MR. NIXON: -- graduation.
THE COURT: Logistics.
MR. NIXON: Yes. I mean, you said Thursday the 24t h
and --
THE COURT: Sorry. I just --
MR. NIXON: No, no.
THE COURT: Life happens.
MR. NIXON: We tried to create as good a record for
you as we could within a limited amount of time wit hin the
parameters that you set for us.
THE COURT: Okay. I will allow you to mark for
identification the incident reports concerning the counties
that are here. And I'll decide after I see them wh ether I'm
going to receive them.
MR. NIXON: Okay. Would you like us to do that tod ay
or --
THE COURT: You can do it this evening and submit t hem
by -- electronically.
MR. NIXON: Okay. Judge --
THE COURT: I don't want the universe because it's
overkill, but I want to know whether you have exam -- since
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you're trying to use these people as examples, I me an, with due
respect -- and this is really with due respect, the re was time
spent on stuff that, frankly, wasn't part of the ca se, but I
allowed it.
So I'm just giving you the opportunity despite that to
at least identify the incident reports for the coun ties that
were sued, because if -- I doubt it, but if there i s one where
you did get the records or you did not make a reque st, which is
part of what I've heard from them, I want to have t hat
identified. Okay?
MR. NIXON: Yes.
THE COURT: I would appreciate that.
MR. NIXON: Yes, your Honor. Judge, do you have an y
other questions of me?
THE COURT: No.
MR. NIXON: Okay.
THE COURT: Thank you. I don't.
MR. NIXON: Judge, it's a very simple, simple choic e,
simple decision that you have.
THE COURT: Okay. Thank you.
MR. NIXON: It's very clear. Thank you very much.
THE COURT: Thank you. Yes, sir.
ARGUMENT ON BEHALF OF THE SECRETARY OF STATE
MR. PIZZETTA: Your Honor, I appreciate the
opportunity to be heard, recognizing we will have a dditional
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arguments put in our brief. And if the court would , please do
not take the fact that I may not mention an argumen t right now
to be that it won't be raised later on. I'm going to try to
spend my time wisely and focus on the arguments tha t appear to
be of most interest to the court.
But before I get into the meat of the argument, the re
is one placeholder I think is important to recogniz e in terms
of preliminary relief. And we will make sure and p ut this in
the brief, and that is that the relief being asked for by
plaintiff is, in fact, full and final and irrevocab le relief in
terms of temporary relief. Right? That if the cou rt issues a
preliminary injunction that says turn over these do cuments, the
case is over. And there are important cases, your Honor, from
federal courts about not granting full and final re lief in
preliminary injunction context, but point out anoth er important
context too.
In FOIA litigation, your Honor, federal Freedom of
Information Act cases, there are a number of good c ases that
say even after a court reaches a final decision on a FOIA Act
case, that they often -- the usual course is to sta y even the
final decision to preserve the right for appeal.
And so we want to point that out to the court that
truly here in this instance plaintiffs are try to u nilaterally
deprive us of a full hearing on the merits by getti ng up front
full and final relief. It would also really deny u s the
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practical application of appellate review. That is just a
placeholder.
But let me get into what I think is a much more
interesting argument, your Honor. I'm going to org anize it
this way. Under the likelihood of success, I'm goi ng to talk
about two things most important, that the documents being
requested are not NVRA documents and that, two, eve n if they
are NVRA documents, plaintiffs do not get blanket a ccess to all
of the birth dates just for saying , I think I should have it.
The court through the comments you have made alread y
in this case I'm almost sure that you probably alre ady have the
case that we're thinking of that is actually the mu ch more
on-point case in this matter, your Honor.
Your Honor, this case particularly addresses the
questions of even if it is an NVRA document, do you get full
access to birth dates and everything else? It is a fascinating
case, your Honor. Very recent. In this case plain tiff
Democratic Party was suing a defendant who, if I'm remembering
this correctly, was the county registrar. And the Texas
Democratic Party accused the county registrar of vi olating the
NVRA and violating the Equal Protection Act.
And in the context of that litigation, in a discove ry
request, in a discovery request, plaintiff said, We want all of
your NVRA information. We want voting records. We want
everything, birth date , under the guise of protected discovery.
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And when the court bristled at that, they said, Well, not only
are we entitled to it under discovery, we are entit led to it
under the NVRA. And this terrific Southern District of Texas
case said, No. You're not entitled to every bit of birth date s
and Social Security information .
And the reasoning is compelling, and it is the
reasoning that this court has already picked up on. It talked
about the history of the NVRA being one to promote voter
registration and it is limited to voter registratio n. And it
said it is reasonable interpretation that Congress admitted
exclusion for this more personal general informatio n because
there was already federal legislation out there lik e FOIA and
other federal legislation that protected things lik e birth
dates.
So they said while you don't find it explicitly in the
statute, it can't be that Congress would say on one hand, for
FOIA requests, if you come to the federal governmen t and ask
for a FOIA request for everybody at the Department of
Education, for their birth dates, FOIA well-establi shed law
says you don't get that.
THE COURT: The problem with that is that FOIA has a
bunch of exceptions in it or exemptions, and this s tatute
doesn't.
MR. PIZZETTA: That is correct, your Honor. And
that's where both this decision and one of the Long decisions
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I'll talk about in a moment explicitly addressed. And in this
decision the court said it's not explicitly in ther e, but
Congress wasn't legislating in a vacuum. They knew that there
were other protections that were out there.
And they mention concerns about -- they contrasted --
there are other statutes out there that they mentio ned. As a
matter of fact, I think it's section -- it's 1974b. It's a
good discussion in the case where they talk about t hat
authorized the Attorney General of the United State s to get
certain documents under certain limited conditions and with
certain protections. And they said, well, it can't be that
Congress in 1974b gave these restrictions as to wha t the United
States Attorney General can ask for, but under 1973 gg allows
anyone off the street to ask for any document with no
protection. It can't be the case that Congress mea nt that to
happen.
They noted that disclosing this personal informatio n
could deter people from registering to vote. And t here's a
terrific quote that says, "Federal voting legislati on does not
preempt common sense, and disclosure of information explicitly
protected by the Texas Election Code is simply irre sponsible."
And there, as in here, there is a state statute tha t says you
don't turn over this type of information.
And there's another great point about this case, yo ur
Honor. At the end, the court sort of set up this i nteresting
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paradigm where it appears the court was begging pla intiffs here
to say, Ask for a smaller subset. Ask for what you need. And
they get to the end of the case where he -- where t he court
denies the motion to compel after citing NVRA and s ays,
plaintiffs have failed -- have offered no compromis e position
to their request on limited access to the database, and the
court is unable to accept plaintiffs' argument that these very
schemes protecting personal information are preempt ed by both
the Voting Rights Act and the NVRA. So they said y ou don't
just get to walk in and take it all.
This decision is good, but it really ties into, you r
Honor, the Long decision. Here's important ways to look at
Long. There are three decisions in Long. The first one to us
is the most important one, in 2010. We'll call it Long 1 .
That's the decision by the lower court, the first o ne.
And that's the decision where the court looks at th e
request and says, All right. We're going to redact Social
Security numbers. Not going to allow those to be p rovided .
What struck me with that case was -- every time I r ead it, I
thought, Now, wait a minute. If everybody's right, there ar e
no exemptions. There's nothing in the NVRA that sa ys you
redact Social Security numbers. How is it that the court, this
same court, all of sudden says redact Social Securi ty numbers ?
And they say it for three reasons, your Honor. But
when you listen to all three of these reasons, you say -- you
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could -- you could exchange the word "Social Securi ty" for
birth date. The first reason they said , We're going to say
Social Security numbers are exempt , is because they're
sensitive and vulnerable to abuse. That's the same thing for a
birth date.
The second thing they said was, Well, Congress has
already said you can't get Social Security numbers through
FOIA. So why would we let you get them through the NVRA?
The third thing they say -- actually, it maybe four in
my count. The third thing was, they said, You know, we've got
regulations even in federal court. We don't allow you to post
somebody's Social Security number in a new file.
And the fourth thing, they dropped a footnote, and
they said, And Virginia has this really great state statute
that says, Don't produce Social Security numbers fo r this kind
of information.
So when Long 1 looks at those four factors, exactly
the same four factors here, then the court says, All right,
Mr. Pizzetta, that's great, but in Long 3 -- I guess if you say
it goes up to Long 2 , comes back down -- Long 3, the court
didn't allow them to redact birth dates. You're right.
Here's the difference between Long 3 and what we have
today. In Long 3 , the dispute was very specific. Plaintiffs
had made credible allegation that a certain subset, a limited
defined subset -- and by memory, your Honor, I thin k it was
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college students or college-age students -- were no t being
allowed to register. Right. And they made credibl e
allegations about that.
And the court said, Okay. I'll let you see those
voter applications. Those are the ones you're aski ng for that
are at issue in this case. Long 3 did not say you can just
come in and ask for every date of birth for every r egistered
voter in the state and then let you decide on the b ack end
which ones may be relevant. So I think when you ta ke Long 3
and you take the decision -- the Texas Democratic P arty
decision, you get to exactly where this court is he ading and
that is --
THE COURT: I'm not sure where I'm headed. No.
Seriously, I have serious concerns. And I do belie ve, I really
do believe, that True the Vote could get what it ne eded to
challenge any election it wanted without birth date s. It has
elected not to do that. It has the right it believ es under the
statute. The statute is written broadly. And so w e're here to
figure out what the statute's language actually mea ns. But I
don't know where I am yet.
MR. PIZZETTA: Your Honor, I appreciate that. Mayb e I
should say where I hope this court is headed. But that -- this
generalized request just doesn't fit within the con cept of the
NVRA. And maybe the other way to look at it, becau se in all of
these cases, even when they're talking about the NV RA, they
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always cite Freedom of Information Act cases. And that I think
is the appropriate balancing test. And that's real ly what --
the difference between Long 1 and Long 3 is sort of, Do you
need the information ?
And FOIA says the same thing. While you may not be
able to get the birth date of every person who work s at the
Department of Education, if you can go to a court a nd make a
specific showing that you need the birth date of X person or Y
person for some legitimate reason, then those FOIA courts say,
All right. We balance the privacy with the intent of the
statute. And in some instances you could get that informatio n.
But what you don't do, you don't get, is a data dum p.
And there's wonderful FOIA cases too, your Honor, t hat
distinguish this kind of electronic-format kind of distribution
where it's just ripe to be posted on the Internet o r mined for
other data or cross-referenced or sent out to other people that
do mailings, that those kinds of bulk disclosures r aise higher
concerns about privacy than just going and saying, I have a
concern about -- for instance, if they find two voters in
Covington County and they say, I think this voter is actually
not 18. I want to see his birth date, if they've got some
credible reason for that one voter, that's differen t than
asking for what would be about 1.8 million active v oters on
poll books across the state of Mississippi. So to us that
is -- even if they are NVRA documents, there are ex ceptionally
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strong arguments and policy reasons.
And the last part of that argument, your Honor, tha t
you'll see in the brief are some terrific decisions in the
public records context from the Texas Supreme Court and the
Arizona Supreme Court. But I raise it for this. W hen I read
the Texas Supreme Court decision where it -- from m emory, I
think they wanted the address of all the bar app- - - bar
members, date of birth of bar members.
And the Texas Supreme Court said -- you know, talki ng
about there's little question that this information is
sensitive -- and I'm sorry. That's in the Arizona Supreme
Court. They said with both a name and a date of bi rth, one can
obtain information about an individual's criminal r ecord,
arrest record, driving record, state of origin, pol itical party
affiliation, Social Security number -- because ther e's a way to
reverse engineer it -- current and last address, ci vil
litigation records, liens, property owned, criminal -- credit
history, financial accounts, and possible other inf ormation. I
had no idea until I read that opinion how date of b irth, much
like Social Security, and everyone recognizes now, is the entry
to this information.
So the two sub-arguments there before I move back t o
NVRA is proper is that the disclosure of this infor mation both
raises privacy concerns and -- very legitimate priv acy concerns
and identity theft questions. And you'll see when we brief
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this, your Honor, that using date of birth is a ser ious issue,
it is a serious concern, and it's the basis of thes e decisions.
THE COURT: How do you reconcile the point made by
Mr. Nixon that the name, address and date of birth are
available upon a slightly different request?
MR. PIZZETTA: Not -- if what Mr. Nixon was talking
about was testimony from Mr. -- Ms. Turner, I think what
Ms. Turner was explaining that is, yes, if you came and asked
for an individual NVRA application, that may be a c loser
question about do you get that date of birth. I'm not sure
that that's a settled point of law even after Long .
But that -- if that's -- you're concerned about cou ld
you find out individual birth dates, I'm not sure y ou can, as
you say, blanket manner coming in under NVRA and sa y , I want to
know Harold Pizzetta's birthday . I have no reason to think
otherwise than I would like to know it so that I ca n go to CVS,
a drug store here. And when say, you know, I'm here to pick up
my prescription . They don't ask me a Social Security number.
They ask date of birth. So they go pick up my pres cription. I
don't think you can necessarily get it just on a wh im.
And there's another line of cases that -- I'm not s ure
it's exactly what you're asking, but there were a v ery
interesting line of cases where people said, But, look, I can
find somebody's date of birth out probably if I loo ked hard
enough in some other record. And the court said, again, That's
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the difference between your individual work to find a date of
birth somewhere and you being able to go to the Sta te of
Mississippi and say, 'Give me 1.8 million listed al phabetized
by name and address.' Much bigger privacy concerns.
But then to back up -- but that's my favorite part of
the argument, your Honor. But to back up to what t he question
to begin with is, are they even NVRA documents?
THE COURT: Are they what?
MR. PIZZETTA: NVRA documents. And, your Honor,
they're not NVRA documents.
Let me start with saying the first thing that oppos ite
counsel has been very gracious to us in our short t ime we've
met each other was -- the first thing he said is , I want -- he
wants voter rolls. I'm not sure -- I could be mist aken -- that
I've seen anywhere that any of the plaintiffs have actually
asked for a voter roll. But if they want a voter r oll, there
is a way to get it. It doesn't have date of birth on it. But
there is a document that is available that's -- tha t -- voter
roll, doesn't have date of birth. I believe it is available
electronically. It's easy to deal with.
The second document we talk about is poll books.
Obviously, that's the focus here. Right? And I th ink the
reason why we know poll books are not NVRA document s -- and I
can say from our search -- I can tell you that I th ink there's
a case out there that explains this one way or anot her -- sort
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of defines outer context -- we just haven't been ab le to find
it yet. So I think we have to reason by analogy an d say , Is
the poll book the same thing as the voter roll ? Everybody
agrees it's not. Right? Because it's only a subse t of voters.
It's not all registered voters. It's only a subset that
happened to be labeled as active.
THE COURT: Happened to be labeled?
MR. PIZZETTA: Active. So an example I think of is if
I go to -- come to vote and I'm not listed on the p oll book, I
still get to vote. I cast an absentee ballot; and before they
count it, they go back to the voter roll to see if I'm on it.
So it's a subset of voters.
THE COURT: Do voter rolls have your address or
county?
MR. PIZZETTA: Yes, ma'am, I believe that's correct .
THE COURT: The real relevance about whether your v ote
is going to get counted is that you're still voting in the same
county even if you're at a different address, appar ently. I
think the testimony is that if you're in the same c ounty, the
presumption is they're going to count the vote, the affidavit
vote; but if you're in a different county, it's not likely to
get counted because you didn't register and change your
address.
Do the voter rolls have county on them? I'm only
asking that because of the way you're arguing.
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MR. PIZZETTA: Do they have counties? Do we know,
Kim?
MS. TURNER: I'm sorry?
MR. PIZZETTA: Voter roll have county on it?
MS. TURNER: Yes.
MR. PIZZETTA: Your Honor, they do have the countie s
listed on them. They don't have date of birth, tho ugh. We
don't provide date of birth with them.
So the other aspect about the poll book, though, an d
then you'd say is it any part of the poll book that is used as
part of voter roll maintenance? No. It's never re verse
engineered, if you would, to put information back i nto the
voter roll. All right. So if you think of the con ceptual
document you may ask for under NVRA, voter roll or your
policies relating to how you maintain that voter ro ll, that's
fine; but poll book never inputs data to the voter roll. So
it's not --
THE COURT: Well, the -- I think the argument would be
that the poll book is used on voting day, which I w as trying to
ask this question earlier. I got nowhere because I couldn't
frame it correctly. But the point is voting day, t he word
"vote" or "voted" is added to the poll book, pollin g book. And
so after the fact that might have legal implication for whether
you -- well, might have some -- I don't know. It m ight have
some legal implication.
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MR. PIZZETTA: Yeah. I think -- I think there was a
question where plaintiffs were trying to link that back into
somehow you might get kicked off the voter roll. A nd I believe
the answer was, no, your voting history alone never kicks you
off.
THE COURT: Right. So the way it would have impact ed
is if you're in the inactive status and you fail to vote over I
think a period of two years or something.
MR. PIZZETTA: I sort of think of a poll book as a
list of who voted.
THE COURT: Right.
MR. PIZZETTA: But it's not a list of who was eligi ble
to vote. And it's not a proxy for the voter roll. It's a
different list. It serves a different function. I n effect,
your Honor, it sort of says which type of ballot yo u can cast.
Do you get to walk right back and do one of the ele ctronic
ones, or do we get an affidavit from you because we haven't
seen you in a while? But in no way does it stand a s the proxy
for the voter roll.
So maybe you look at it this way. If you said,
Plaintiffs, if you really want to know whether Miss issippi's
voter roll is accurate, whether we've listed people on there
who are 16 or whether we have people from foreign c ountries or
whatever it is, then the document you would ask for is the
voter roll. You don't ask for the poll book.
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But the real issue is they don't want to know. The y
don't want to know who's registered to vote. The c omplaint and
the TRO go on and on about crossover voting. That' s what they
want. And I appreciate that. That's an interestin g and a
controversial issue at this point in time. So I un derstand why
they want the voter roll.
But what they're attempting to do is to pound a rou nd
peg into a square hole, because the voter roll does n't get --
come to them under NVRA. But they can get it under Public
Record. But you're right, they don't -- they proba bly don't
want to spend the expense of paying per page, and t here was
some confusion about whether they're paying for red action.
Your Honor, I think all that gets easily worked out in
the wash. Most of these counties, as I understand it, weren't
even charging them for any extra time for redaction . It was
all just 25-cent per page or $1 per page, whatever that is,
which sounded like a lot of money to a True the Vot e volunteer
who comes out from California and says, Well, what do you mean
it's $1,400 ? That's --
THE COURT: He said 14,000. I wondered if he was o ff
by a digit, but many of them -- even 1400 would be a lot of
money.
MR. PIZZETTA: And he -- if there --
THE COURT: In 80-some counties or whatever you've
got.
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MR. PIZZETTA: That's right. That's right. But ev en
the NVRA says you can charge a reasonable amount. Right? And
I -- if I remember, the explanation was at like 25 cents a
page, that's only like 8,000 pages of poll book. A nd we saw
from the example the poll books only have maybe 10 or 12 folks
listed on them. So you're right. A big county has a big book.
And so your question is: Does the state or does th e
county absorb the cost of making all these copies o f an
8,000-page book, or does the NVRA say, Yeah. That's right.
You can charge a reasonable cost ? And it is a lot of money. I
understand that. But it's a lot of money that some body's got
to pay, and the statute clearly says the requester does. But
that's why the poll book issue is not about birth d ates. It
was just about getting it at the time.
The last couple of documents, your Honor, or at lea st
more interesting, but very small issues, absentee b allot
applications and those kind of things.
THE COURT: Just one second. There's some issue ab out
5:30.
(OFF-RECORD DISCUSSION)
DEPUTY MARSHAL: At 5:30 all the doors lock in this
building. So at 5:30 if you want to leave, you can . You can
be escorted down to the second floor now, but after 5:30 you
will not be able to get back in.
THE COURT: Okay. So anyone that wants to see the
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rest of this, has to stay. Anyone who chooses to l eave, may
leave. No hard feelings. I understand completely. But you
cannot come back. Okay. Thank you very much. Tha t does
clarify.
MR. PIZZETTA: Your Honor, is it bad to say I would
really like to leave by 5:30?
THE COURT: I know the feeling.
MR. PIZZETTA: But, your Honor, without disclosing the
year of my birth, today of all days happens to be - -
THE COURT: Your birthday?
MR. PIZZETTA: -- my birthday.
THE COURT: Is it a big birthday?
MR. PIZZETTA: It's not. It is because I'm still
here, but it's not a big one.
THE COURT: I had a very big birthday not long ago,
like a really big one, a really depressing one, whi ch is one of
the reasons I think I'm here and I'm not still sitt ing in
Houston. But the point is it beats the alternative .
MR. PIZZETTA: Yes, ma'am.
THE COURT: We have to keep that in mind.
MR. PIZZETTA: Thank you.
THE COURT: Go ahead. Happy birthday.
MR. PIZZETTA: Thank you very much. I'll put this
together and finish my points. The absentee ballot s and
absentee envelopes, those issues I think are immine ntly
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workoutable. Those -- the main issue as I understa nd it from
the counties are when folks come on -- and the cour t sort of
already identified it. When you come in on the 7th and 8th,
give a list of 15 different documents, or let's jus t say
anytime within the two to three weeks after the ele ction, these
ballots are protected. They are sealed.
Knowing election disputes, one of the big things th ey
have about election disputes is what was the chain of custody,
did somebody stuff a ballot in there, did somebody take ballots
out? And so clerk -- our county clerks are necessa rily
exceptionally protective. And in this case rightfu lly so.
Right? I mean, the attention that this has gotten. So when
people come in and ask for it, it's just not availa ble at that
time.
THE COURT: Right. Okay. I got the sense from the
papers and argument that -- and evidence, frankly, that there
is -- there are time frames. And I could use a sum mary -- if
it's a matter of state law or the record or whateve r, I could
use a summary if you have a quick and dirty one her e about the
time frames, because on the phone you mentioned som ething about
certification and we knew that had just happened, a nd then
there's something about seeing the ballot boxes aft er the
certification but before some other time. Help me out with the
overview, please.
MR. PIZZETTA: Your Honor --
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THE COURT: And, again, if somebody disagrees, chim e
in.
MR. PIZZETTA: Thank you, your Honor. I will try t o
stay sufficiently 10,000 foot so I won't mess up a detail. But
time frame, we just passed the moment where the bal lot box
examinations by the candidates could happen. There was a
12-day window. Let me say there's discussion about whether it
started on one day versus the next day, but there's a 12-day
period, and that has basically ended.
We are now in that posture where as we understand i t
the McDaniel campaign is going to file a challenge imminently.
State law is not exactly clear, I will say, knowing that people
are listening to me for clues as to when it has to be filed.
But every day that goes by is a danger it is out of time. So I
think we're looking at a challenge being filed with in the next
seven to ten days.
THE COURT: Okay. But what happens before that 12- day
period?
MR. PIZZETTA: Before that 12-day period, there's
still the process of finalizing the tab -- well, we 've got
basically about a 14-day period before they were su ed -- let me
say it this way, your Honor. The night of the elec tion we know
there's lots of counting. The next day, there's mo re counting.
They have folks that night to begin to certify the vote. So
there's five days for absentee -- for affidavit bal lots to be
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resolved, if you voted with -- if you had an ID iss ue. So five
days you're still open to bring back in to validate your vote.
Then the committees counted that and certified it t o
the Republican Party. As soon as they finished wit h their
vote -- their counting of it, they've got their bal lot boxes,
they reseal them. They're sitting there in the cou nties. They
certify to the Republican Party. The Republican Pa rty
passes -- the Republican Party does the certificati on. They
pass that to the Secretary of State, and he just ho lds it.
It's like the Democratic -- it's like the Democrati c
committee. We don't go count the votes from, you k now, the
nomination of Obama. We're just are told who to pu t on the
ballot. Right? So we just said, Okay. You told us who it is.
Once it gets to the Republicans, that's generally
where the 12-day period for a candidate now gets to say, Okay.
The results are certified. Now as a candidate, I c an go look
at those ballots and see if I want to challenge.
THE COURT: And that's the 12-day period.
MR. PIZZETTA: That's the 12-day period. This is - -
that started, I think, the 7th, more or less, with some
disagreement for 12 days beyond the 7th. So the 19 th. Now
we're in that very small window where if a candidat e is going
to challenge, it's now or never.
And if they do -- you can imagine if they say, I think
there's massive voter fraud in Rankin County, it could be that
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whatever judge hears it, the next thing they do is order all of
those ballots to be brought to Rankin County, you k now, under
lock and key to be kept up there for safety while t hey go
through it.
So how this meshes -- this is a great -- this is a
very important point about how the NVRA is not a st atute for
election contests. It's -- because federal courts don't get
involved in election contests. Right? And so the NVRA is not
some sort of quick discovery tool.
And here's the example. Leaving aside the lack of
proper notice in this case, we all recognize that b efore you
can bring a private right of action under NVRA, the re's these
really big notice provisions. The clearest example , assume for
a second this is the general election. And the day after the
general election the losing candidate says, I was robbed and I
want all -- to look at all this . And they go the day after the
election and they say, Give me all your NVRA documents , and the
county says , No . Under the statute you have to wait -- you
have to give notice and wait 90 days before you can bring suit
under that example. And so we know before you can bring suit,
90 days. You can't rush the court. 90 days. And that's the
opportunity for the State to investigate and to cur e for the
counties. And so we know it is not a postelection discovery
for candidates.
Now, your Honor, I would use that as an example, an d
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my very good counsel is going to say, Mr. Pizzetta, you're
forgetting. It's a shorter time frame under these kind of
examples. It's important not to be crossed on that. It has t o
do with when the violation occurs. If a violation occurs
within 30 days from an election, you don't have to give notice.
Right? So if you're asking on the front end for vo ter poll
stuff and they don't give -- or voter registration stuff and
they don't give it to you, you might be able to sue .
But when the violation -- when you go after the
election and ask for the poll book, which is necess arily after
the election because it's not marked until then, ge nerally,
there's a 90-day trigger. So, in other words, Cong ress doesn't
want this to be the way you go in and bust down the doors of
the clerk's office while the poor clerks are trying to do
everything else they do and keep the candidates hap py and say,
Give me this document and give it now.
And I wish I could remember the county like -- I th ink
it was Leake County. They have a circuit clerk, an d I think
it's a part-time assistant, and that's it. And cir cuit
clerks -- your Honor, you probably don't know this. Circuit
clerks in Mississippi do the grand jury issues, all the grand
jury questions. They do all the filing. They do a ll the
marriage licenses. They're busy folks to begin wit h. They are
super busy during this time.
So that's NVRA -- this is -- that's why you have su ch
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a hard time figuring out how to put NVRA on top of state
procedures that must be done in the 12 days. They don't match
because they were never intended to match.
And it reminds me of my favorite quote about electi on
law from the Fifth Circuit, the Noble v. White decision in
1993. The Fifth Circuit said, "If there are areas where angels
fear to tread, surely there are places the sight of which make
federal judges tremble. Federal judges are wise to hesitate
before entering the judicial thicket of state elect ion law; we
will chop trees if absolutely necessary, but ever m indful of
our commitment to comity." Very true here, your Ho nor.
This is -- this -- and when you come up and you loo k
at that third part of the claim and it's, you know, asking you
to resolve parts of whether this election is good o r bad, I
think we know where we go.
With that, your Honor, I will quickly mention there
are other arguments we have, your Honor, about the timing
issue. We've got a very important argument that we will make
to you in the brief about the Secretary of State no t being the
right party. And just as an example, when True the Vote sued
over the Allen West election in Florida in just 201 3, they
wanted documents from the county; the county wouldn 't give
them. They sued the county.
When the county filed a motion to dismiss arguing t hat
You failed to join the proper party, the Secretary of State ,
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True the Vote argued, No, no, no. We don't sue the Secretary
of State when it's a question of a county not givin g us
documents. So we will be developing that argument I think more
for you. And I didn't want -- I know I've got a cl ient who
would be very upset if I didn't make that argument.
THE COURT: Okay. That's fine. But the point is,
really, it depends on the -- to some extent anyway, on the
individual state statutes, I would think.
On the NVRA, if the Secretary of State has been
certified as that statewide official, that has some importance
to me. I'm not making a ruling here. I'm just say ing that
would indicate some involvement. Whether it's enou gh to be the
named defendant, I don't know. But the other thing that -- so
I respect that you're making this argument, but I'm not sure.
With regard to the West challenge, was that under t he NVRA or
was that just an election challenge?
MR. PIZZETTA: Your Honor, I believe that was an NV RA
lawsuit. I will --
THE COURT: Okay.
MR. PIZZETTA: I will be -- I will stand corrected if
it wasn't, but my memory was it was NVRA.
THE COURT: Okay.
MR. PIZZETTA: And we will bring that to the court' s
attention in the brief. And, your Honor, it's a go od point.
You're right. The Secretary of State has a role un der NVRA.
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And I think if the Secretary of State was being sue d because
the Statewide Election Management System wasn't ope rating
right, that there are duties he has with regard to this
statewide system, I think that would be a much clos er argument
about whether he was the proper party. But when yo u really
look to something that he doesn't have control over like
documents, I think it leans to that other side. Bu t it is
certainly an argument that we will need to flesh ou t.
THE COURT: What happens to the documents after
they're certified and the period for challenge is o ver? Do the
counties maintain those ballot boxes, et cetera?
MR. PIZZETTA: Yes, ma'am. The actual -- like the
original -- the poll books themselves, they stay wi th the
counties and the ballots stay with the counties.
THE COURT: Okay.
MR. PIZZETTA: There's some elements of the
information that might be uploaded onto SEMS.
THE COURT: Right. That part I got. The messy par t
here is that the county clerks -- circuit clerks se em to have
taken their direction on responding, to the extent they
responded to the request, they took their direction -- or at
least that's how it's been characterized. They per ceived they
were taking direction from the state Attorney Gener al -- or I'm
sorry -- Secretary of State.
MR. PIZZETTA: That is true. There is no question
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that some circuit clerks will call and they will as k the
Secretary of State, What do you think ? They'll call the
Attorney General's Office, What do you think? They'll call
other circuit clerks. A number of them don't.
And I think the testimony today was a good number o f
counties just gave them what they asked for. So yo u can't take
from that that the Secretary of State has some auth ority to
direct them one other way.
I like the way the Secretary explained it to me. H e
said, Harold, there are 82 circuit clerks, and they will come
up with 83 different ways to do it, and there's not hing I can
do about it. We do our best to try to assist. So -- by no
means am I saying, you know, that plaintiffs are of f base and
this is shock to us, and we've never -- you know, t his is --
we're not Republican Party in this respect. I mean , we at
least -- I understood what these guys were talking about when
they gave us the notice. So -- but it's not nearly that clear.
THE COURT: Okay.
MR. PIZZETTA: The last part, your Honor -- and I j ust
want to make sure in case we're considering in term s of a
preliminary injunction -- is this irreparable harm question.
And the brief aspect on that is, first of all, ther e's actually
irreparable harm to the State if you grant the prel iminary
injunction.
The best case on that is the 2003 decision from the
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Fifth Circuit in the Planned Parenthood case, a Texas case,
where it went up on a preliminary injunction, and t hey said --
the Fifth Circuit said that a state necessarily suf fers the
irreparable injury of denying the public the intere st in its
enforcement of its laws when the federal court issu es an
injunction prohibiting it from being enforced.
And so as plaintiffs have set it up here today,
there's conflict between Mississippi law that says you don't
produce date of birth with NVRA. But the court whe n it decides
this matter and if it says , State law, you're trumped, I mean,
that is -- for purposes of -- it's an irreparable injury in the
context of preliminary injunction.
And I should say, you Honor, I was told that, by th e
way, the Mississippi Supreme Court denied this afte rnoon the
petition for rehearing. So it is now settled that the State of
Mississippi State Law protects the date of birth on poll books.
There's no irreparable injury to plaintiffs to deci de
this on the front end. The things they mentioned i n their TRO
brief, they said first without immediate access to this
information, an unlawful election may be certified.
THE COURT REPORTER: Whoa.
MR. PIZZETTA: I am so sorry. There is no irrepara ble
harm to the plaintiffs. The first argument was if they don't
get the documents immediately, there's the danger t he election
will be certified and it will be less than forthrig ht, or some
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argument like that.
As the Republicans have pointed, it has been
certified. It was actually certified before they f iled their
TRO. So that has gone.
The second thing they say is, Well, if we don't get
the documents now, someone may not file a challenge . But, your
Honor, they filed a challenge. That's what Count 3 is. They
filed a challenge that says the vote is diluted. S o not having
the documents didn't stop them from filing a challe nge. And if
they need quick access to the documents in order to really
pursue their vote dilution claim, they should be as king for
expedited discovery under a protective order, becau se I'd
imagine this court would say, Even if I give you the documents
in discovery, there's going to be tight controls an d you are
not going to let these date of births out.
The second thing is the candidate is likely to
challenge. The real issue is the harm to plaintiff s -- they
just don't want to say it, and I understand why -- is they want
to participate in the public debate, and I don't fa ult them for
it. But there's plenty of good case law that says wanting to
participate in a public debate is not irreparable i njury. And
they come in the context of FOIA cases where someon e says, I
have to get this information -- as a matter of fact, I think it
was an NSA type of case. You've got to give me this so I can
go public, and the federal courts have said a movant's general
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interest in being able to engage in an ongoing publ ic debate
using information that it has requested under feder al law is
not sufficient to establish irreparable harm will o ccur unless
the movant has access.
The final aspect, your Honor, is the public policy.
An injunction would not serve public policy and if for no other
reason than the public policy of this state and of many states
is that this information is protected. So if you g rant an
injunction and you release that information and it turns out
when the case goes to the merit it goes the other w ay, there's
no way to resolve it or to reverse it.
And that is a good decision for the D.C. district
court, 2007, Judicial Watch , that talks about that as to
although -- it says, "Although the court may not ul timately
decide that the protections do not apply, to grant the motion
for preliminary injunction at this early date threa tens to
trample those statutory privacy protections before a decision
on the applicability of those protections are fully litigated."
So would it be against public interest to just rele ase all of
this public information.
Your Honor, thank you very much for --
THE COURT: Thank you. Thank you very much.
ARGUMENT ON BEHALF OF THE REPUBLICAN PARTY
MR. WALLACE: Mike Wallace for the Republican Party .
I had not intended to speak until the day you get t o Count 3 on
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vote dilution, if we are still in the case. The ev idence
undisputedly shows that the Republican Party does n ot possess
and has never possessed any of the documents that p laintiffs
say they want. But I was concerned to hear your di scussion
with Mr. Nixon in which you seem to agree that Miss issippi law
on the right to participate in the Republican runof f may be
relevant in some way to your determination under fe deral law.
THE COURT: The argument is that even if poll books
are not relevant or not within the NVRA generally, that in a
runoff the existence of the notations of who voted in the
primary -- immediate preceding primary may dictate the
eligibility for where you can vote in the runoff.
MR. WALLACE: I understand --
THE COURT: It's a very narrow principle, and it co uld
be avoided by the unofficial voter form arguably.
MR. WALLACE: I understand the argument about why i t's
relevant. What I want you to know, since it is our primary, is
the status of Mississippi law on who is entitled to vote in a
Republican runoff.
THE COURT: Okay.
MR. WALLACE: There is no statute that says that an
individual who votes in the first Democratic primar y is
ineligible to vote in the Republican runoff. No st atute says
that. There is no decision of any court that says a person who
votes in the Democratic first primary is ineligible to vote in
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the Republican runoff.
There is a Fifth Circuit decision called Mississippi
Democratic Party v. Barbour where the Fifth Circuit
specifically noted that the Democratic party had no t done what
they needed to do to even attempt to restrict eligi bility to
vote in their primaries. And I'm here to tell you that the
Mississippi Republican Party has never attempted to exclude
anybody from any primary.
The reason that Ms. Turner told you that they tell the
poll workers to look at those forms to see who vote d in the
original primary is that there is an Attorney Gener al's opinion
that dates back to 1978, which you have not seen an d they may
put it in their brief, which says that if you vote in one
party's first primary, you cannot vote in the runof f.
And it's absolutely intelligent for the Secretary o f
State to rely on that -- on that opinion because we have a very
good statute that says public employees have a good faith
defense when they rely on Attorney General opinions . And it is
entirely reasonable that every one of these circuit clerks
listens to the Secretary of State when the Secretar y of State
tells them what the law is, because the Secretary o f State is
relying on Attorney General opinions.
But if your Honor decides that it is important for you
to know in interpreting federal law what the law is on who may
vote in a Republican runoff, I am here to tell you that you
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will be first judge ever to venture into the forest of that
Mr. Pizzetta just warned you about. There is no la w. The law
on which their Count 3 is premised does not exist.
Now, the other reason I'm here is to introduce my
colleague from Wise Carter, Russ Nobile. Before he came home a
couple of years ago, he worked in the Voting Rights Section at
the Justice Department. He was on their task force on the
National Voter Registration Act. He is experienced in knowing
what the Justice Department thinks is covered by 8( i) and why
it's covered by 8(i). And he may just want to stan d up and
tell you if he agrees with everything Mr. Pizzetta has already
said, but that's why I asked --
THE COURT: Or what Mr. Nixon said.
MR. NIXON: Maybe so. But that's why I asked him t o
come up from Gulfport today, even though the Republ ican Party
doesn't have any of that stuff. Thank you, your Ho nor.
THE COURT: Yeah, you may proceed.
CONTINUING ARGUMENT ON BEHALF OF THE REPUBLICAN PARTY
THE COURT: With that kind of buildup, I don't feel I
can stop you.
MR. NOBILE: Russ Nobile from Wise Carter on behalf of
the Mississippi Republican Party. It's nice to hav e an
opportunity to finally prove some semblance of wort h to the
firm. So I appreciate Mike for that. At the risk of
getting -- being pedantic, I just want to actually talk about
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the text of the statute.
THE COURT: I would like that.
MR. NOBILE: 8(i), section 8, as we formerly called it
in a previous life. But Section 8(i), as the court has
suggested, has fairly clear, fairly unambiguous qua lifications
to the type of data that is covered. It is the typ e of data
related to records concerning implementation of pro grams and
activities for the purpose of ensuring accuracy and currency of
the official list.
Now, that is not the same thing as the voter
registration applicants. With all due deference to the Fourth
Circuit -- and I completely agree with everything t hat the
State has said today -- I do not agree -- you know, my reading
of the statute and my experience with the statute i s that voter
registration applications, federal, state, electron ic or paper,
are not covered. They just aren't.
What would be covered would be training materials t hat
the Secretary of State puts out, information about how it sends
out its 8(d)(2) notices under the NVRA, which I wil l touch on
in a minute. Some other examples of things that wo uld be
responsive to it would be -- let me just get my lis t here --
would be internal operating procedures, certain non --
THE COURT: Where do I look -- okay. You may be a
very knowledgeable person, and presumably you were involved in
the drafting -- or at least at the table --
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MR. NOBILE: Just enforcing. I'm not --
THE COURT: Enforcement.
MR. NOBILE: -- I'm not that senior.
THE COURT: Okay. Where do we find this kind of
information that you're referring to?
MR. NOBILE: Well, I would direct the court -- and
this isn't specifically delineated anywhere. And I will be the
first to concede that. But when you're trying to f igure out
what -- what the -- what Congress meant by these pr ograms and
activities, you look at the first part of Section 8 .
And Section 8, which is also 42 U.S.C. 1972gg-6, wh ich
is the main statute here, part A has basically five directives.
And one of those directives, subpart 4, mandates th at states
maintain or have a general program that makes a rea sonable
effort to get rid of deceased voters and people tha t have
plainly moved.
But further down from there, you get into part (b).
And in part (b) it says -- and I'm going to paraphr ase here.
In part (b) of Section 8, it says that any state th at has a
program or activity to protect the integrity of the electoral
process by ensuring maintenance of an accurate and current
voter registration roll for federal office shall do whatever
program it does in a race-neutral way or compliance with the
Voting Rights Act of 1965. And then it delineates --
THE COURT: What are you reading?
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MR. NOBILE: Excuse me.
THE COURT: What section?
MR. NOBILE: The statute at hand here, Section 8, o r
1973gg-6, subsection -- subsection (b).
THE COURT: Confirmation voter registration?
MR. NOBILE: Correct. If you read that language an d
then you section 8(i), you'll realize that the draf ters -- the
language almost is identical.
THE COURT: You are saying 8(i), which is the
disclosure provision.
MR. NOBILE: Correct. Yeah. I'm sorry. It's just --
it's a bad habit, but it's subsection (i) that we'r e talking
about, the public disclosure requirement.
THE COURT: Right.
MR. NOBILE: If you read that language, you'll --
THE COURT: Confirmation voter registration, you're
reading it -- what is the language within (b) -- yo u said
(b)(1) -- there's 1, 2, (a), (b) --
MR. NOBILE: "Any state program or activity to prot ect
the integrity of the electoral process by ensuring the
maintenance of an accurate and current voter regist ration
roll."
THE COURT: "Shall be uniform and nondiscriminatory "?
MR. NOBILE: Yes, and goes through there. And so w hat
I've presented to the court is basically 8(i) is a way for --
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or public disclosure requirement under (i) is a way for
advocacy groups to audit how voters are being remov ed from the
rolls and whether it's being done in a race-neutral fashion.
It doesn't give people an opportunity to go audit
voter participation. Voter participation has nothi ng to do
with Section 8. Let me rephrase that. Voter parti cipation has
only one realm of relevancy with respect to this st atute, and
that is after someone sends out -- after the state or the --
and as they pointed out, the circuit clerk sends ou t the notice
of -- or the triggering mechanism that there has be en a change
in the -- change of address.
Now, circuit clerk sends Judge Atlas a notice sayin g,
We understand you've moved to Houston. You've join ed the
federal bench, and you're no longer registered to v ote here.
You don't respond and then you don't participate in the next
two federal general elections, then you can be move d off the
rolls. You can be purged.
Now, what we need to keep in mind here is what we'v e
got is a primary election. So the participation in a primary
election or the lack thereof is not relevant to lis t
maintenance practices. And I apologize for jumping around, but
when you get to part (c), subsection (c), that's a safe harbor.
THE COURT: Yeah. Great. But the statute is a lit tle
broader than just voter removal programs and confir mation of
people not being kicked off unfairly or discriminat orily.
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MR. NOBILE: Correct.
THE COURT: I thought that it was that -- well, (a) --
subsection (a) of the statute says that administrat or --
administration of voter registration for elections for federal
office, in that regard each state shall, one, ensur e that any
eligible applicant is registered to vote in an elec tion -- and
they tell you different ways you can register. And I guess
this is saying -- it tells you -- it tells the stat e who they
have to accept for registration.
MR. NOBILE: Part (a) has five affirmative
responsibilities.
THE COURT: Right. One, register to vote with four
subsections; two, require appropriate state electio n officials
to send notices of disposition of applications to r egister.
Right?
MR. NOBILE: Correct.
THE COURT: Three, name of registrant may not be
removed except -- and then we're into some other th ings. Four,
conduct a general program that makes reasonable eff orts to
remove names. So they're supposed to remove names of people
who were dead or whatever.
MR. NOBILE: They have an affirmative duty to remov e
deceased voters and change --
THE COURT: And changed residence.
MR. NOBILE: And changed residence.
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THE COURT: And, five, inform voters of requirement s.
MR. NOBILE: And then --
THE COURT: Six, ensure the identity of voter
registration agency. I don't understand --
MR. NOBILE: Six is basically if you're -- if you'r e
applying for welfare and you get your voter registr ation
application that way, the world should not know tha t you are
getting subsidies.
THE COURT: Okay. The point -- the point of all th at
was that if NVRA tries to ensure the proper, fair, open
registration of new voters in one section -- one mu ltiple-part
section and then tries to require upkeep of those v oter lists
and then goes into more specifics about removals, e t cetera,
your point being it's all about the lists and that this section
on public disclosure is with reference to these pre ceding
sections and --
MR. NOBILE: With one --
THE COURT: -- context --
MR. NOBILE: With one in particular. With one in
particular. States have to do -- they have -- at a bare
minimum, they just have to remove deceased voters a nd people
under part 4 or subsection 4.
And then part (b) provides that if you decide to do
more than the minimum, if you do more than the mini mum, then
it -- it needs to be race neutral and no one should be removed
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for failure to participate in federal elections and then it
goes through it.
And then later on at the end of the statute, it giv es
advocacy groups a right to examine those list maint enance
practices. You know, who are you sending 8(d)(2) n otices to?
Are you just sending them to a zip code where every one's got,
you know, low socioeconomic stuff -- situation? Is it, you
know, an area of town where there's known to be a l arge, you
know, Democratic support or Hispanic support and so on and so
forth?
And so when you're reading section (i) and you're
curious about the articulation of the public disclo sure
requirement, it is helpful to reference part (c) to understand
sort of where that language is coming from.
THE COURT: The fourth Circuit is quite broad in it s
definition of program and activity. Primarily, the -- there
was only one type of document being requested. The re wasn't
the whole gamut that we have here. But the point i s, they
didn't seem to restrict it quite this way.
MR. NOBILE: And I do -- I do recognize that, your
Honor. I mean, this is not the best distinction, b ut in that
context you're dealing with specific -- specific co ncerns and
complaints about discrimination involving historica lly black
university.
THE COURT: Right.
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MR. NOBILE: And when you are dealing with that in the
federal context, you know, if there's -- if there's colorable
claims, then federal courts are very forthcoming ab out the data
that's available to get to the bottom of it. Now, you know,
not to -- I would -- I would suspect if they --
THE COURT: This is all about completed voter
registration applications. That's what --
MR. NOBILE: In Long ?
THE COURT: -- Long was about.
MR. NOBILE: Uh-huh (indicating yes). And, I mean, I
would suspect that if the court -- the Fourth Circu it and the
district court in Long had been faced with the breadth of
information that's demanded in this situation, thei r claims --
their holding would have been much more circumspect than it is.
You know, I'm actually sort of guffawed at reading it, but
that's being it.
I want to echo one point that Mr. -- that the State
emphasized is that there's another public disclosur e
requirement under the federal law and that is the o ne for the
Attorney General. And that one is 42 U.S.C. 1974, and I think
it's 1974a through b maybe or c. But in it, it spe aks
specifically about voter registration and the acces s of voter
registration. And that is from the Civil Rights Ac t of 1960.
And the way that True the Vote is advocating in thi s
situation is that they're basically asking for a br oader right
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to public -- to disclosures than the law enforcemen t
disclosures created under the Civil Rights Act. An d not only
that, in the Civil Rights Act version of the disclo sure
requirement, there is a penalty for the Attorney Ge neral to use
it in anything other than specific context: Grand jury
proceedings, subpoenas, whatnot.
As the court recognized earlier, there is no
limitation on True the Vote's --
THE COURT: Use of this information --
MR. NOBILE: And I'm not trying to suggest that
they're going to do anything untoward, but it's not so much --
it's not just True the Vote you're worried about it . It's the
next person or the marketing group that comes out a nd demands
all this information.
THE COURT: Do you know of any statute -- the witne ss
said that -- Ms. Engelhart said that she didn't thi nk they were
allowed to use this information for commercial purp oses --
Engelbrecht. Sorry. And I wondered if that was tr ue of anyone
who requests information under the NVRA or if it is somehow
because of the 501(3)(c) characteristics of True th e Vote or
what.
MR. NOBILE: To be candid, your Honor, I have -- I' m
not saying she's wrong. I just don't know. I don' t know of
one. I don't -- I certainly don't know of one unde r the NVRA.
THE COURT: Okay. Well --
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MR. NOBILE: And that --
THE COURT: -- I'm interested in that.
MR. NOBILE: I mean, it seems to be a good policy.
And, you know, if I was in their position, I would -- I would
put it under a very encrypted storage location to m ake sure I
don't get hacked, but --
THE COURT: Yeah. But I'm not -- again, I'm not
trying to saying that True the Vote would do anythi ng with it.
MR. NOBILE: Of course.
THE COURT: My hypotheticals earlier and again my
concerns now, truthfully, I'm not worried about the m in
particular by any means. They may be more honest a nd, frankly,
careful than anyone else around. I'm worried about the fact
that the interpretation being requested means that anyone can
come in and get this information, an individual can , and an
individual with money can pay that, quote, unquote, reasonable
fee and then spread this information around the uni verse.
And I'm asking the parties what restriction is ther e
in this statute or some other, because the request for
interpretation here will be used by others and I ne ed to be
sure that this is an accurate reflection of what Co ngress
intended.
MR. NOBILE: You know, I mean, I'm not going to say
that -- I mean, voter registration -- a copy of the voter
registration list -- of the eligible voter registra tion list I
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would concede is covered under the public disclosur e. But I --
you know, beyond that, I don't know that applicatio ns are, and
I don't know that the redaction's a real conflict.
And so I think when recognizing that the concerns
about the affirmative duty to protect the data or l imit its
dissemination is -- makes more sense. You know, yo u've got --
you've got the ability for them to demand training materials
and policies and procedures for the state on how th ey send out
notices, to the AV2. How do they pick people, you know?
I mean, in Texas, for instance, your Honor, I belie ve
every two years you get a new voter card. And if t hat voter
card bounces back, the election registrar in Texas sends you
out a AV2 notice. And if you don't participate in four
elections, you're off the roll. And that -- that's perfectly
legit here.
But in Mississippi -- you know, that's a very
expensive program and, you know, I don't -- I don't know, you
know, what the policy decision is behind that; but I would
imagine it's a huge expense for the state to undert ake. So I'm
not sure I really want to harp on the actual text o f the
language. You know, there's a number of other thin gs I could
talk about.
But I do want to touch on just one other thing that
the court touched on. You know, voter eligibility or
registration eligibility, you know, ten times out o f ten times
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is the same thing as eligibility to participate in an election.
In this situation, there's a disconnect because -- well,
there's an alleged disconnect in this situation bec ause of the
primary issues and the allegations about participat ion.
And so I think, you know, your eligibility to be on
the voter rolls or voter registration list is not t he same
thing as the eligibility to participate in an elect ion. And as
you pointed out, you can be a perfectly eligible re gistrant and
still run afoul of their interpretation of that law . And
then -- let's see. Okay.
And then, you know, I represent the Republican Part y.
So I want to make sure I make this clear, and I kno w that the
court has -- has recognized this. The Republican P arty has no
compliance responsibilities under the NVRA. It's n ot a state
under 1973gg-1. It's not a chief election official under
1973gg-8. And, you know, it's not -- it has no lis t
maintenance responsibility under Section 8 that we' ve
discussed. It's just not responsible for anything under the
NVRA.
THE COURT: How would you -- how would you divide
the -- you said eligibility to be on the roll is no t the same
as who votes or not the same as certifying an elect ion.
MR. NOBILE: I did election enforcement for eight
years. I've never run into a situation where there 's been a
disconnect. But I do agree that here you can be a perfectly
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eligible registrant, and under their interpretation of the
law -- and that is according to the AG opinion. I' m not
discrediting or not trying to, you know, criticize him for it,
but you can be considered ineligible to participate in the
election. And that's not the same thing as being a n ineligible
registrant or ineligible voter registrant. It's ne ver been a
distinction I've ever recognized or ever thought ab out until
today. But to be honest with you, I've never run i nto -- there
aren't too many places that do open primaries anymo re, you
know, not -- not like we do down here.
THE COURT: Okay.
MR. NOBILE: So other than that, that's it. That's
all I have, your Honor. Thank you.
THE COURT: Thank you.
ARGUMENT ON BEHALF JEFFERSON DAVIS COUNTY ELECTION COMMISSION
MR. SANDERS: Your Honor, if I could, just briefly,
I'm going to lower the elevation of the discourse a nd for that
I apologize, but I'll make up for it by being brief , I hope.
THE COURT: Could you pull the mic a little closer to
you.
MR. SANDERS: Yes, your Honor. I'm sorry. I know
that you -- I know you know what I'm going to say a nd that is
there's not --
THE COURT: Yo no alamo . That's what it's -- that's
what it's called in Texas.
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MR. SANDERS: Say again?
THE COURT: Yo no alamo . It means "I wasn't even
there" --
MR. SANDERS: Well, that's right.
THE COURT: -- in Español.
MR. SANDERS: Well, and the election commissions --
the county -- we are bystanders here. I guess we'r e kind of
standing nearby, but we weren't really there. They 've made not
a request to any of us. They have not even pretend ed to have
any proof against any of the election commissions. They try to
bring us in --
THE COURT: What's the role of the election
commission, in your mind? And what is the -- what' s the role
of the election commission?
MR. SANDERS: It's -- their primary roll, your Hono r,
is to maintain the records and to conduct purges. That's the
practical, on-the-ground function that they --
THE COURT: So if they were, according to
Mr. Nobile -- Nobile?
MR. NOBILE: That's correct.
THE COURT: According to Mr. Nobile, if the lawsuit
were restricted or if I find that the limitations h e's
advocated are the proper ones, then would your peop le be --
would the election commission people be the right d efendants?
MR. SANDERS: No. We don't -- we are not the
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registrar. We don't -- we don't keep the voting re cords.
THE COURT: Do you maintain the eligibility list, t he
voter --
MR. SANDERS: Yes. We have -- we have access to al l
the various documents and so forth. And, yes, we d o. We --
like I say, we do maintain and try to keep the vote r rolls
current. When we find out people have died, we pur ge them. We
do all the purging activities under the NVRA that y 'all have
discussed.
But the point is the plaintiffs here have not -- no
county election commission has refused the plaintif fs anything.
It is -- all the refusals have come from the county registrars,
which are the circuit clerks.
Now, the plaintiffs in paragraphs 23 through 31 of
their complaint -- and there are footnotes to those
paragraphs -- allege that the circuit clerk is some how an
ex officio member of the election commission. And Mr. Nixon in
his remarks and in his pleadings cited Mississippi Code Section
23-15-211. And if I might --
(DOCUMENT TENDERED TO THE COURT)
MR. SANDERS: I gave one of y'all a copy that says "my
copy" on it. I don't know which one. But, anyway, your Honor,
this is the section they refer to. If you'll see, Section 1(a)
creates a state election commission. Section 1(b) establishes
county election commissions. And Section 1(b) says there
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are -- shall be five persons who are the electors i n the county
who will comprise the election commission. And eac h one of our
county election commissioners is -- consists of fiv e persons.
1(c) says, "There shall be a registrar in each coun ty
and that shall be the circuit clerk." The circuit clerk, of
course, is a constitutional county officer. It was created by
the first constitution in I think it's Article VI, section 168,
of the most recent constitution.
But it is clear that from this statute that the
plaintiffs rely on that the circuit clerk is not a member of
the election commission. He's is a separate entity that -- you
know, he's not one of the five.
So we think that we should be dismissed. I'm speak ing
specifically for Jeff Davis County. When we filed our response
to the TRO, we asked to be dismissed. We have no b usiness
being in this lawsuit. And there are a bunch of la wyers over
here and there are a lot of hourly meters running. And Jeff
Davis County is a poor county and they need to be c ut loose.
And so in the total absence of any attempt even by the
plaintiffs to give any evidence that the Jeff Davis Election
Commission has done anything wrong, we ask that we be dismissed
from this action.
And we also -- in our response, we think that we we re
sued I don't want to say frivolously, but I think t he
plaintiffs did not do their due diligence that they should
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have. If they had, they would not have sued us. A nd we have
been sued I think wrongfully. We have incurred att orneys'
fees. In our response to the TRO, we asked that we be
dismissed and be granted attorneys' fees. But --
THE COURT: If they had sued the circuit clerk, wou ld
you have the same argument?
MR. SANDERS: No, I would not.
THE COURT: And who -- are you the one who said tha t
the election commissioners are not suable entities under
Mississippi --
MR. SANDERS: No, I have not made that --
THE COURT: Okay.
MR. SANDERS: -- I have not made that argument.
THE COURT: Okay. If the plaintiffs were to
substitute the circuit clerk for the election commi ssion, would
that solve your problem or add them?
MR. SANDERS: It would solve the election commissio n's
problem, yes.
THE COURT: I'm having trouble -- I guess because
you're worried about which budget line your fee is getting paid
from.
MR. SANDERS: The election commission does have its
own budget. It's impacting on their budget.
THE COURT: That's the point.
MR. SANDERS: And they deserve to be dismissed from
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this lawsuit. Now, if the plaintiffs wanted to sub stitute,
that's up to them.
THE COURT: Of course. But the point is the -- the
enforcement of any order or the benefit of any orde r that I
issued would be important to the election commissio n, would it
not?
MR. SANDERS: Your Honor, the election commissioner
follows the law, whether it's from -- the law comes from -- the
order comes from the Congress or from the state leg islature or
from Her Honor. They're going to -- they're going to follow
the law no matter what. But they won't have to pay me anymore.
And I think they deserve to be out.
THE COURT: If the county got sued, would you be
hired?
MR. SANDERS: The fellow who left earlier would be,
and he's the county guy. I'm a litigator. So, yes , I'd
probably be back in front of you. That's all I hav e. Thank
you, your Honor.
THE COURT: Okay. It is getting late. A little hu mor
is always good. Who else have I got that wants to make a
comment? Some of you quiet ones on the back bench there.
Okay. Yes, sir.
ARGUMENT ON BEHALF OF RANKIN COUNTY ELECTION COMMISSION
MR. SLAY: Rankin County. I just simply rise to jo in
Mr. Sanders' argument and behalf of Rankin County.
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THE COURT: I thought you were going to rise to say
please can we adjourn. Sorry.
MR. SLAY: I'm happy to do that on your behalf.
THE COURT: How about we do this. I think all the
county defendants were sued as election commissions and by --
according to plaintiffs, by implication their membe rs were sued
in the lawsuit. And so I'm going to assume for the purposes of
this case that the arguments made on behalf of Jeff Davis --
Jefferson Davis County are being made on behalf of all the
counties. Is that fair? Okay.
And I'm not sure where this is all going to come ou t,
but it does seem to me from what I just heard that the NVRA --
that some of the programs or the maintenance of doc uments or
the like that the NVRA clearly covers under those s ections that
Mr. Nobile was pointing out do fall within the bail iwick of the
election commission for the counties.
I'm not saying anybody did anything wrong. It's go t
nothing to do with that. It's just when we're look ing for who
it is that needs to be in the suit or who needs to be on notice
of whatever rulings there are, the election commiss ions are in
that group. Doesn't mean anybody committed a wrong or should
be held liable, but it does mean they need to know what the
rules are.
They get the rules both from the AG and from the st ate
Attorney General's Office apparently -- I mean from the
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Secretary of State's Office. And then they may get it from a
court and, certainly, everybody's on notice about f ederal and
state law.
But I -- I'm sympathetic about the costs, but I'm
questioning whether it pays for us to spend a whole lot of time
deciding whether it's the election commission or th e county --
or the circuit clerk in the official capacity or wh at that
should be in this lawsuit. In the real world, all of you
lawyers are going to be here in one form or another regardless
of which entity within the county government is sue d. Okay.
So I'm not minimizing the importance of the differe nt
agencies or departments. I'm only saying that I'm trying to
focus on what I think are dispositive issues. So I 'll try
to -- when I write something, I'll try to address t his. I
don't know if it will do justice to the sensitiviti es on the
human level. But I would like it to be clear that Mr. Nixon
said -- and I will adopt his comments -- that nobod y is
attributing malice or some sort of criminal or othe r --
MR. WALLACE: Nefarious.
THE COURT: What?
MR. WALLACE: Nefarious.
THE COURT: Thank you -- nefarious motives. They'r e
just trying to get enough people in this lawsuit so that when
there's a ruling, whether it's now, later, or by th e Court of
Appeals or the Supreme Court, that at least enough people are
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on notice that it can be enforced, okay, and that p eople will
have a feel that they are bound. Okay.
Mr. Nixon, you can respond.
CONTINUING CLOSING ARGUMENT ON BEHALF OF PLAINTIFFS
MR. NIXON: Thank you, your Honor.
THE COURT: And I remember everybody will have brie fs,
but I promised you time and you have it now.
MR. NIXON: Thank you. Thank you, your Honor. If I
were a Mississippi voter sitting in this courtroom today, I'm
not sure what I would be feeling right now. And I think that's
important because what I've heard is that if someon e wants to
come in and look to see if the election result is v alid, what
they've heard from the people they've entrusted wit h
responsibility of doing that is that It's not my job. It's
somebody else's job. I don't have the records. I don't keep
the records. You've not sued the right person. Yo u've not
sued the right --
THE COURT: Can I cut you off?
MR. NIXON: Yes.
THE COURT: You're undermining the points that you
made earlier about this. I'm here and I'm super-in terested in
legislative, statutory interpretation and things th at are
substantive.
I don't -- I'm not here as a popularity contest. I 'm
not here to side with one candidate or another. I want to be
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perfectly clear, if there's anybody in here taking notes, that
I have no horse in this race on the merits of any e lection that
ever happens in Mississippi.
MR. NIXON: I'm not.
THE COURT: That is why I was asked by the Chief Ju dge
of the Fifth Circuit to come from Texas to Mississi ppi. So,
honestly, you are wasting your breath. I don't -- it's 6:15.
We've been going since 9. Everybody's been working super hard.
I'm begging you, address the statutory issues, beca use that is
my focus, please. I'm begging you.
MR. NIXON: Yes, your Honor.
THE COURT: Please.
MR. NIXON: We have an injury without a remedy. Th e
argument of the defendants is that there is no reme dy. There's
no person to be held accountable, and you have no a bility to
enforce a remedy for an injury of we don't know wha t magnitude.
THE COURT: We don't know what?
MR. NIXON: Magnitude. That's the policy issue. A nd
we are going to use birth dates as a reason why we are not
going to afford you a remedy. That's the public po licy issue.
Now, we can talk about birth dates and the concern of
the court. We have briefed that to the court; but, again, that
public policy -- and here's what's very dangerous. We --
it's -- it's similar to freedom of speech. We have the -- if
we could say only people who will use speech proper ly can
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speak, then I'm okay with it. If we could only -- but so I get
to judge what you're going to say before I give you or afford
you the right of speech. We don't do that.
But here the concern is We don't know how you're going
to use birth dates. We don't know if there's somet hing else
underhanded. That's not in the province of the defendants nor
in this court to concern themselves with.
THE COURT: The question is statutory construction.
Would you agree?
MR. NIXON: Yes. But there's a bright line, and I
think that that line has been drawn for the court. Been drawn
for the court by Congress. Other courts have consi dered it.
It's been drawn -- even the case they cited out of Justice Gray
Miller -- Judge Gray Miller wrote was four square o n the Fourth
Court of Appeals' opinion. And it dealt with Socia l Security
numbers, not birth dates.
THE COURT: Okay. Thank you. I haven't read it ye t.
MR. NIXON: Yeah. Well, we -- I had a chance in th e
time to look at it. And, really, if it's this issu e of, well,
what's the cost, and it's -- well, you have $1,400 per 82
counties, that's $114,800. That means that only we althy people
can challenge the validity of voter rolls and do th at work
necessary to make it -- that's not good public poli cy either.
That's not the intent of the statute.
In Texas -- and I'm not sure about Mississippi, but I
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will look it. But in Texas, the Attorney General h as the right
to enforce the proper use of the information from - - that we're
seeking today. So in Texas when you were to obtain , the
Attorney General has a right.
And that's actually addressed in the case that they
cited with Judge Miller. Fine. Said we understand that this
the state's Attorney General has a right to go afte r people who
want to misuse the information so that is there a b asis in the
statute to -- of some enforcement, the limitation o f use and
enforcement by a public official against those who would choose
to misuse it. So that's -- all of that's been done . Your
Honor, I don't know if Mississippi has such a thing , but that's
been done.
So we're in a situation where it's very dangerous I
think to allow at every request somebody to say, Well, tell me
why you want it and I'll decide whether or not I th ink that's a
good enough reason.
THE COURT: I couldn't agree more. That's not the
conversation.
MR. NIXON: But the --
THE COURT: That's not what I'm after. The policy is
one thing. You are talking policy, policy, policy, policy.
The other side is talking policy of other types. B ut I am
trying to talk statutory construction.
MR. NIXON: Right.
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THE COURT: And that is the new stuff that I haven' t
yet heard from your side to the extent you want to respond to
some of these arguments that we've heard.
MR. NIXON: Well, I think -- for the most part, Jud ge,
I think I addressed them prior to their arguments.
THE COURT: Fair enough.
MR. NIXON: And then I think that we went through t he
statute, the one section, and I think the court agr ees it --
THE COURT: Don't tell me what I agree.
MR. NIXON: Okay.
THE COURT: Only because it would not be fair to
either side.
MR. NIXON: Certainly. Certainly. And I'm sorry. I
didn't mean to say -- probably a better way to say it, that the
court observed that the Fourth Circuit opinion is v ery broad.
THE COURT: Yes. That is true.
MR. NIXON: Okay.
THE COURT: Thank you.
MR. NIXON: And so -- and so, I mean, that's what
we're -- that's what we're relying upon.
THE COURT: Right.
MR. NIXON: And so we're in -- we're in a situation
that if we -- once again, we come back to the inesc apable and
indisputable evidence. The information is availabl e. Birth
dates are available. All of the documents are available. We
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just want to redact birth dates from these document s, but you
can go get birth dates over here . But nobody is -- nobody
is -- I mean, I have heard today that I apparently have to sue
82 county clerks in order to get the full state set of
information. That's --
THE COURT: Actually, what you heard today from the m
was all you have to do is ask for voter rolls from the State.
That's what I think you heard. That's what I heard . I mean,
if you want -- if you truly want to know who is eli gible to
vote in the sense they're on the voter roll, active , inactive,
suspended, whatever, rejected, the voter rolls are the
universe, contain the universe of eligible voters.
MR. NIXON: That's one piece of the puzzle. And th e
other piece is there's just -- and it's all really stuff that
you just print off a disk.
THE COURT: Is the rest -- yeah. Okay. Let's assu me
that's true. Fine. I don't know if it is or not. The statute
says reasonable costs. I don't know what reasonabl e cost is.
But whatever it is, if it's $100, Ms. Engelbrecht t hought that
was high, but that would be a whole different ball game than
1400. Would you like to amend your witness' testim ony when he
said 14,000? Do you think he could have been wrong ? Because
it's contrary to the pretrial information. I'll le t you think
about that.
MR. NIXON: Right. Right. I mean, initially we we re
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informed that it was -- that it was 1400. And then when we --
as he went through and said, Wait, there's this many pages
and --
THE COURT: Okay.
MR. NIXON: -- wow --
THE COURT: If you want to stick with the 14,000,
that's fine. I just wasn't sure.
MR. NIXON: But it's 50 cents a page and how many
pages. And that's -- I mean --
THE COURT: Right. Okay. But more importantly, as ide
from the footnote, the issue really seems to be tha t you
cannot -- your clients cannot mount voter challenge s of
elections after the election without the materials you're
seeking.
MR. NIXON: That's right.
THE COURT: Okay.
MR. NIXON: And, you know, a good way to describe t his
is that -- and I think that everybody's been really puzzled by
this -- if we had asked for one voter, let us have the one
voter registration and this information off of one voter, would
anybody be upset?
THE COURT: No. You probably would have gotten it.
MR. NIXON: Right. But the issue is, well, that's
clearly legal. Right? Well, the -- well, why is i t when you
ask for a whole lot of legal information it suddenl y becomes
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illegal? If you're doing a legal thing many times over,
because you're doing it a lot doesn't make legal ac tivity
illegal.
THE COURT: Uh-huh (indicating yes). I understand.
MR. NIXON: It's a whole lot of legal activity.
That's where we are. But, once again, we cannot av oid the
problem of accountability. We have -- because if w e do not
address this, we invite additional problems because there's no
remedy. There's no -- there's no entity to hold ac countable.
There's no group, workable group to hold accountabl e. There's
nothing to be done. And when that happens, why vot e? Why --
why have elections?
THE COURT: The Constitution -- under the Equal
Protection Clause you seem to think you have a vote r dilution
claim. The Voting Rights Act gives -- and the vote r dilution
claim is based on double -- what your witnesses cal l double
voting, what I think I would prefer to call crossov er voting.
But the point is --
MR. NIXON: And any absentee ballot issues and --
THE COURT: Yes. And then some unsupported or
maybe -- I don't know what to call it, erroneous or --
unsubstantiated votes by absentees.
MR. NIXON: There are mistakes in every election.
We're not here because these are standard mistakes.
THE COURT: Yeah. Perfection is probably not
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achievable in this context. But the hope is that t he election
ballot process is darn close to perfection.
The point is that we have a Voting Rights Act, we h ave
civil rights laws, we have other statutes, the Free dom of
Information Act, we have Open Records Acts from -- for
different -- in different context. What is it that you think
the NVRA added to the -- to the mix, particularly t o the Voting
Rights Act or straight up under the Constitution?
MR. NIXON: Sure. The -- and I think it's importan t
you mentioned the Freedom of Information Act or FOI A request.
FOIA was around a long time before the NVRA showed up.
THE COURT: Yeah.
MR. NIXON: And so in the FOIA -- FOIA documents
certainly did call for redaction of identifiers and may even
require redaction of birth dates. And -- but when it came --
THE COURT: It says personal information.
MR. NIXON: Personal. When it comes -- when it
comes -- so that statute existed. When Congress pa ssed the
NVRA, it did so without the same exemptions. It di d so without
the exceptions of personal information. In fact, i t just did
the opposite. Personal information, name, address, birth dates
need to be disclosed. They did so in -- in knowing about and
aware of the prior enactment of Freedom of Informat ion.
So what I think that what the NVRA did, I think it had
many purposes, one of which is the exact purpose fo r which
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we're trying to employ it today. Now, there are ot her noble
purposes in it, to make sure that people aren't bei ng purged
who should not be purged and that there are other w ays to
ensure and protect people's right to vote. And it certainly
made access to voter applications easier.
But election integrity is an important aspect of th e
statute. And Congress is aware of that. Anybody w ho gets
elected to office is aware of the issues involving elections.
They're messy and unfun for those who have ever had to run.
It's just the way the world works and it's -- so. But the
point is if we're going to have -- attempt to have a democracy
run by people who decide who their leaders are, it' s -- we've
got to try to do as well as we can ensuring integri ty. That
decision on how to do that was made for us when the statute was
passed.
So what we -- what we are here today to do is a ver y
narrow request, most of which we could probably obt ain, the
bulk of it, not the -- not the absentee ballot appl ications and
envelopes, but most everything else is probably abl e to be
printed on a disk before I can leave the courthouse and get to
my car. It's that -- for very little cost.
THE COURT: And the absentee -- let's focus on that
for a minute. The absentee applications and envelo pes: How
does that relate to voter lists?
MR. NIXON: In what respect are you asking your
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question?
THE COURT: I'm asking it in the most general way y ou
want to answer.
MR. NIXON: Okay. The -- the -- if someone shows a nd
asks to vote absentee -- remember in Mississippi it 's this
limited process. If somebody asks to vote or they have walk-in
or what the term was, show up absentee or whatever, but you do
it early, those ballots are set aside. You can sti ll come and
vote on election day.
THE COURT: You don't get an absentee ballot unless
you're on a voter roll. Correct?
MR. NIXON: That's correct. And I don't know if th ere
is an opportunity for an inactive voter or someone who has
moved or changed their name -- you know, almost hal f of
Americans in their lifetime will change their name. That's --
I mean, that's -- the birth dates is one thing that don't
change.
THE COURT: Right.
MR. NIXON: So -- so the absentee -- the absentee
ballot is all -- is all part of the process of who' s eligible
to vote on election day. If you -- if you've asked to vote
absentee, do you -- are you able to show up and vot e in an
election?
Say your trip got canceled or you're not having to go
out of town or -- I mean, what's -- what's this -- you know,
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are you able to be challenged? If someone -- if th ey -- you
know, they're supposed to call out your name, "John Smith," as
they open your absentee ballot and someone says, No, no, no. I
know John Smith and he's in his driveway, you know, mowing his
yard. He's not -- he's here. Don't count it. He may -- you
know, they can challenge that.
So there's a -- it's -- it is all part of the fabri c
of how the election is contested -- is conducted. Excuse me --
conducted in who's eligible, when they're eligible, are they
currently eligible, are they currently eligible for which --
for the runoff and -- and so it's a -- it's a -- it 's a
complete picture. And you need those five things t o make a
complete picture. And when you have a complete pic ture, you
can do your work. And you can -- and it's -- I thi nk
Ms. Engelbrecht said you can either debunk the myth s or make a
point.
You know, a lot -- a lot of people have suggested
there are problems in a part- -- in this particular election.
So either we can know that that's true or prove tha t that's
wrong, but it's -- but just as you said, you don't -- I mean,
you're agnostic as to this election. So is True th e Vote.
True the Vote just wants to get to the answer. Tha t's what it
does. That's what its purpose does. It's about va lidating the
voting process and just getting to the answers.
THE COURT: Fair enough. Thank you.
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MR. NIXON: All right. Is there anything else I ca n
answer for you? I just want to --
THE COURT: I do want the answer to the questions I 've
asked during this hearing. So whatever I may have asked, I
don't think I need to repeat them. I'm sure I coul dn't do that
accurately anyway.
MR. NIXON: And let me just say, I mean, you know, one
last -- one last point --
THE COURT: And then we need to create a schedule s o
we can all go home.
MR. NIXON: Certainly. The state's Republican Part y,
we didn't mean to --
THE COURT: Upset them so much?
MR. NIXON: -- put a bur under their saddle. But - -
and we haven't -- there's -- he keeps saying we hav en't accused
them of anything, and he's right. But how do you - - the reason
they're here is because it's their primary. We hav en't accused
them of anything. Unfortunate press release and I think that
may have been misworded or something, but -- okay. So a bur
got put under their saddle.
But we're not -- and there's a reason why we're not
asking for immediate relief from the Party. We're asking for
immediate relief from whoever has these records and --
particularly I think the Secretary of State and the county
clerks and the election commissions or whoever. Bu t, I mean,
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that's who we're asking relief from. And we unders tand the
Party currently doesn't have these records. But th e point is
is that this is their primary.
THE COURT: I understand.
MR. NIXON: They're just a -- I mean, how could we
fashion a -- they need to be here in order to prote ct
themselves if an interest of theirs becomes an issu e. That's
why we asked them to please come in.
We haven't said they've done anything bad. In fact ,
we haven't said anything because really -- nobody's really done
anything bad. We just have a disagreement on what the law is,
which is fair. But as to Party, it's their primary . And to
the extent that the primary is affected in some res pect, we'd
like them to be here. In fact, I think that they, you know,
would like to be here too.
THE COURT: Right.
MR. NIXON: So, Judge, we will address answers. An d
we're prepared to do a briefing schedule now if you would like
to.
THE COURT: That would be great.
(COUNSEL CONFERRED)
MR. NIXON: Judge, you asked for all of the other
incident reports related to the counties that have been sued
and we have those marked as TTV-1 through 38. I do n't -- and
you asked us to file them this evening.
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THE COURT: No, I didn't say they had to be filed
today.
MR. NIXON: Oh, okay. That's good because --
THE COURT: I just said file them at some point.
MR. NIXON: Yeah, because we tonight -- the 5:30 de al
was when our plane left. I think that's what maybe --
THE COURT: I missed a plane also.
MR. NIXON: We do not have access to some --
THE COURT: It's no problem.
MR. NIXON: -- ability to --
THE COURT: It's really no problem.
MR. NIXON: Okay. Very good. Thank you, Judge.
THE COURT: Okay. Thank you. Let's talk about
briefing. The plaintiffs have initiated the proces s with their
TRO and preliminary injunction request. It has bee n responded
to by the Republican Party and Jeff Davis also, but most people
have not -- defendants have not responded.
The State and some of the others mentioned somethin g
about motions to dismiss. I really would like to f ocus on the
preliminary relief that's been requested and the st atutory
interpretation and, you know, the elements relating to all of
that. Anybody who wants to preserve their rights f or dismissal
is fine.
I guess what I'd like to say on that is watch out w hat
you wish for because you just may get it, or not, b ut you may
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wind up with more parties in this case, namely, the circuit
clerks. So I'd like the parties to talk among them selves to
decide whether you just want to make some arrangeme nt,
agreement about who the proper defendant should be.
Most of the defendants don't seem to be complaining ,
but Jeff Davis is. And they have a right to and an yone else
has a right. But I guess there needs to be a media tor, and
these skills are of limited value here. But the po int is less
is more. Honestly, if you spend a fortune on wheth er it should
be the county clerk, circuit clerk, the executive c ommittee,
the election commission, the commissioners, if it's important,
do it; but if it isn't, see if you can make some so rt of a
stipulation.
That said, those briefs have to be separate. If
you're filing a brief about the wrong party, et cet era, you
file that separately. That's a motion to dismiss o r something
to that effect. Your page limit is ten pages.
To the extent that there is briefing on the merits of
the response to the summary judgment or the prelimi nary
injunction motion, I would like as much of a consol idated brief
as you can stand. The page limit -- and I will be flexible
because, frankly, there are a variety of arguments. I don't
know what you want; but when you want it, ask for i t and file
your brief at the same time. If it's a problem, I' ll let you
know.
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More likely than not I'll grant it, but it does nee d
to be in 13 font and double-spaced and make your fo otnotes
legible. Some of you guys are filing your footnote s in like a
10 font and then when I get it on ECF, it's 8 font. I mean,
they're almost not readable. This is not a joke. And,
frankly, I have really good eyes. I mean, I'm read ing
everything, but footnotes need to be in 12 font. B riefs need
to be in 13 font. I hate to be so specific, but it 's required.
Those of you who use Word, reformat your footnote f ont because
it's really small and very, very difficult. That's a tip for
everything you file in federal court.
Once the defendants have filed and plaintiffs
presumably will want to reply, unless the plaintiff s want to
put in something that is -- I have your trial brief s. I have
what you've already filed. It's very comprehensibl e. I get
it. You do not need to file that stuff again. But if you want
to file a supplement in light of what you've heard as opposed
to a reply, I would -- I would consider that. Or y ou can just
file a reply, and then I guess I'll have to give a surreply.
So I'm open to your suggestions, but I want to -- I want these
issues of statutory construction and my other quest ions
answered in written form in the next few weeks.
What does the defense want? What do the plaintiffs
want?
MR. NIXON: Judge, I understand you've asked the
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defendants to kind of lead off in the briefing here .
THE COURT: Well, I've asked them to respond to you r
motion because I haven't gotten anything substantiv e from them.
If you -- other than the Republican Party, which is separate.
MR. NIXON: We are happy to respond and supplement.
THE COURT: Do you want to reply as opposed to
supplement?
MR. NIXON: Yes. Yes.
THE COURT: Okay.
MR. NIXON: I'd like to do that.
THE COURT: Okay. Do you want to -- how do you wan t
to handle this, guys?
MR. PIZZETTA: Your Honor, an off-the-cuff suggesti on,
could we say -- we'd like to get the transcript and we probably
do --
THE COURT: I think we're going to have it pretty
soon.
MR. PIZZETTA: And we do need to help you by workin g
to see how much of a brief we can all join. What i f we filed
on August -- Friday, August 15th, and do --
THE COURT: How many weeks is that? I'm at a littl e
bit of a loss because I don't have a calendar and I can't get
into the calendars here.
MR. PIZZETTA: Is that three weeks from -- we'd wor k
with the counties to see how much of one brief we c an put
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together and make it a better brief.
THE COURT: Well, I really wanted it sooner. We're at
the 24th. How about this? How about the State and the
Republican Party file something in two weeks, and t he counties
can get together and do whatever they want. I mean , honestly,
the counties are pleading poverty. I'm not figurin g that
they're going to be adding that much to the mix on the
statutory construction. I think most of their exam ination was
about, you know, I didn't get the request or whatever, you
know. The testimony stands on its own.
And it's important, but that's not -- I get that.
I've heard it. I understand where they are. I'm i nterested
more in what you've got. You'll get a surreply, bu t --
because, really, this is the first time any substan ce is going
to come from the State on statutory construction, w hich is
really what this case is about, and so I could use it sooner.
MR. PIZZETTA: Your Honor, we will make August 8 wo rk.
THE COURT: August 8th. Okay. I'll live with that .
And the counties, you too, you agree with each othe r, but don't
worry about the State. The one thing that I want f rom the
counties is some -- you have a tight page limit, co unties,
because -- but you can -- if you file jointly, you can go
beyond the ten pages. I'm not going to give you a page limit.
Use your judgment, but less is more. Okay.
With the State and all the arguments you have
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articulated and you're proposing, you do need to fi gure that I
will read cases and statutes; but to the extent you think
there's something important, do give me pin cites. And it is
okay to give me an appendix with statutes attached or -- you
know, regulations really. Statutes I can find easi ly.
But the point is file it in Word or Word Perfect. You
know how you PDF it. When you do that, our system hyperlinks
now. It's really awesome. So the point is that I don't need
things that are easily obtainable like case cites - - I mean,
case cites, but I don't need the copies of the case s. I need
the cites. And so, anyway, the 8th will work.
Plaintiffs, what are you thinking?
MR. NIXON: We can respond in a week.
THE COURT: Okay. The 15th would be good. I would
like that. Okay. Let's do it that way. And I may have you
send copies by e-mail to my law clerk so that I can see them
when they're filed.
MR. NIXON: We'll do that. I think we have your --
that information from your local rules.
THE COURT: Yeah.
MR. NIXON: Okay.
THE COURT: Well, you don't have my law clerk. I'l l
give that. I'm not doing it on the record.
MR. NIXON: Your Honor, Judge, if it helps the
counties, if it helps the counties -- if it helps t he
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counties --
THE COURT: The counties?
MR. NIXON: -- the counties and the -- and the coun ty
election commissions, if the counties or the counti es' election
commissions agree to be bound by whatever the court binds the
Secretary of State, I don't need them in the case. Yeah, I
don't need anything.
THE COURT: Okay. Well, that's the kind of thing I
want y'all to work out. I'm not forcing it. I'm n ot requiring
it. Everybody should make their informed decision. But that
kind of approach might make sense from where I sit.
MR. PIZZETTA: Your Honor, did you mention a surrep ly?
THE COURT: Yes, I did.
MR. PIZZETTA: And if so, with that, if it's 8th,
15th, 22nd, no later than the 22nd?
THE COURT: 21st.
MR. PIZZETTA: 21st will be.
THE COURT: Okay. Anything else? Okay. Thank you
all very much. This was very interesting, very inf ormative,
and I really appreciate the hard work that went int o making
this hearing happen in one day. Thank you. You're excused.
If there are exhibits that you have that are
originals, bring them up here. I do have exhibits -- well,
wait. Oh, I'm so sorry. Exhibits 1 through 10 tha t the
plaintiff -- or 1 through 9 that the plaintiffs pre identified
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in the record, they were not all offered I don't be lieve.
MR. NIXON: No. That's -- that's correct.
THE COURT: Okay.
MR. NIXON: But for a variety of reasons.
THE COURT: Okay. Fair enough. And the ones that I
marked in evidence that were handled today in the h earing are
the ones I have in the record for the purposes of t his
injunction.
MR. NIXON: 9 was offered I believe.
THE COURT: Yes, it was.
MR. NIXON: And it was admitted.
THE COURT: If you want, we can -- I think for the
sake of the staff, let's go -- well, okay. I'll ju st call them
out. Defendants' 1, 2, 3, 4 are in. Defendants' 5 , 6, 7.
Plaintiffs' 5, 10, 4, 9, 12. Did I say 9?
MR. NIXON: Yes.
STAFF ATTORNEY: 11 also.
THE COURT: I said 11. I'm not sure which one 9 wa s.
I didn't say it.
MR. WALLACE: 9 was -- 9 was the letter from Gail
Parker and the notes of Colonel Harding. And you a dmitted his
notes, and you admitted her letter with some restri ctions.
THE COURT: Okay. 9, then. I'm having trouble
finding it. But if you say so, it's on the record and it's in.
I'm just not seeing it in my notes for some reason, which is
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not -- if I was dealing with it with you, then that 's the
reason. Okay. 9 is in. Thank you all. 9 is in, as
indicated. Thank you all again.
(PROCEEDINGS CONCLUDED)
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CERTIFICATE OF REPORTER
I, MARY VIRGINIA "Gina" MORRIS, Official Co urt
Reporter, United States District Court, Southern Di strict of
Mississippi, do hereby certify that the above and f oregoing
pages contain a full, true and correct transcript o f the
proceedings had in the aforenamed case at the time and
place indicated, which proceedings were recorded by me to
the best of my skill and ability.
I certify that the transcript fees and for mat
comply with those prescribed by the Court and Judic ial
Conference of the United States.
This the 28th day of July, 2014.
s/ Gina Mor ris U.S. DISTRICT COURT REPORTER
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