Delgado v Galvin _MA Welfare Voter Registration Case_ - Answer

8/20/2019 Delgado v Galvin _MA Welfare Voter Registration Case_ - Answer

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UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

BETHZAIDA DELGADO, NAACP-NEWENGLAND AREA CONFERENCE, and NEW

ENGLAND UNITED FOR JUSTICE,

Plaintiffs,

v.

WILLIAM F. GALVIN, in his official capacity as

Secretary of the Commonwealth of Massachusetts,

JUDYANN BIGBY, M.D., in her official capacityas Secretary of the Executive Office of Health and

Human Services, and DANIEL J. CURLEY, in his

official capacity as Commissioner of theDepartment of Transitional Assistance,

Defendants.

Civil Action No. 1:12-cv-10872-DJC

ANSWER

FIRST DEFENSE

Defendants, William F. Galvin, in his official capacity as Secretary of the

Commonwealth of Massachusetts (“Secretary Galvin”), JudyAnn Bigby, M.D., in her official

capacity as Secretary of the Executive Office of Health and Human Services (“EOHHS”), and

Daniel J. Curley, in his official capacity as Commissioner of the Department of Transitional

Assistance (“DTA”) (collectively, “Defendants”), hereby respond to the correspondingly-

numbered paragraphs of Plaintiffs’ Complaint as follows:

INTRODUCTION

To the extent a response is required to the 11 non-numbered introductory paragraphs

found at pages 2-5 of Plaintiffs’ Complaint, the Defendants respond as follows:

Case 1:12-cv-10872-DJC Document 24 Filed 06/08/12 Page 1 of 20


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With respect to the first introductory paragraph, Defendants deny the third sentence of

this paragraph. To the extent responses are required to the legal conclusions contained in the

remainder of this paragraph—which are not “allegations” of fact under Fed. R. Civ. P. 8(b)—

Defendants deny them. Defendants admit that the right to vote is a fundamental right.

With respect to the second introductory paragraph, Defendants deny the first sentence of

the paragraph. To the extent responses are required to the legal conclusions contained in the


Defendants deny them. Defendants further state that the provisions of law cited by Plaintiffs in

this paragraph speak for themselves.

With respect to the third introductory paragraph, Defendants state that to the extent

responses are required to the legal conclusions contained in this paragraph—which are not

“allegations” of fact under Fed. R. Civ. P. 8(b)—Defendants deny them. Defendants further

state that the provisions of law cited by Plaintiffs in this paragraph speak for themselves.

With respect to the fourth introductory paragraph, Defendants state that to the extent




With respect to the fifth introductory paragraph, Defendants state that to the extent



state that the provisions of law cited by Plaintiffs in this paragraph speak for themselves. With

respect to any allegations in this paragraph that Defendants have violated, are violating, or will

violate the National Voter Registration Act of 1993 (“NVRA”), Defendants deny them.



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Defendants lack knowledge or information sufficient to form a belief about the truth of the

allegations contained in this paragraph regarding United State Census Bureau data.

With respect to the sixth introductory paragraph, Defendants deny the entirety of this

paragraph. Further answering, Defendants state that, to the extent Plaintiffs rely on documents

provided to them by DTA or other publicly-available documents in making the allegations

contained in this paragraph, those documents speak for themselves.

With respect to the seventh introductory paragraph, Defendants lack knowledge or

information sufficient to form a belief about the truth of the allegations contained in this

paragraph. With respect to any allegations in this paragraph that Defendants have violated, are

violating, or will violate the NVRA, Defendants deny them. Further answering, Defendants state

that, to the extent Plaintiffs rely on documents provided to them by DTA or other publicly-

available documents in making the allegations contained in this paragraph, those documents

speak for themselves.

With respect to the eighth introductory paragraph, Defendants deny the entirety of this

paragraph.

With respect to the ninth introductory paragraph, Defendants deny the entirety of this

paragraph.

With respect to the tenth introductory paragraph, Defendants state that to the extent


“allegations” of fact under Fed. R. Civ. P. 8(b)—Defendants deny them. With respect to any

allegations in this paragraph that Defendants have violated, are violating, or will violate the

NVRA, Defendants deny them. Defendants admit that the deadline in Massachusetts to register

to vote in the 2012 federal election is October 17, 2012.



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With respect to the eleventh introductory paragraph, Defendants state that to the extent


“allegations” of fact under Fed. R. Civ. P. 8(b)—Defendants deny them. With respect to any

allegations in this paragraph that Defendants have violated, are violating, or will violate the

NVRA, Defendants deny them.

JURISDICTION AND VENUE

1. Admitted.

2. To the extent responses are required to the legal conclusions contained in

Paragraph 2 of Plaintiffs’ Complaint—which are not “allegations” of fact under Fed. R. Civ.

P. 8(b)—Defendants deny them, and reserve the right to contest this Court’s jurisdiction over the

subject matter of the action.

3. To the extent responses are required to the legal conclusions contained in


P. 8(b)—Defendants deny them.

4.

To the extent a response is required to the legal conclusions contained in


P. 8(b)—Defendants deny them, and reserve the right to contest venue in this district.

5. To the extent a response is required to the legal conclusions contained in


P. 8(b)—Defendants deny them, and reserve the right to contest that an actual and justiciable

controversy exists between Plaintiffs and Defendants in this case.



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PARTIES

6. With respect to the first paragraph of Paragraph 6 of Plaintiff’s Complaint,


allegations contained in the first, second, and third sentences of this paragraph. Defendants

admit the fourth (and final) sentence of this paragraph.

With respect to the second paragraph of Paragraph 6 of Plaintiffs’ Complaint, Defendants

admit that EOHHS records show that Ms. Delgado first applied for MassHealth benefits through

a DTA local office, and that she has visited the MassHealth enrollment center in Tewksbury,

Massachusetts, on at least one occasion. With respect to the second sentence of this paragraph,

Defendants admit that, under certain limited circumstances, applications for MassHealth benefits

are available at DTA offices, although an individual seeking solely to apply for MassHealth

benefits at a DTA office would be directed to submit such an application at a MassHealth

enrollment center. Defendants lack knowledge or information sufficient to form a belief about

the truth of the allegations contained in the remainder of this paragraph.

With respect to the third paragraph of Paragraph 6 of Plaintiffs’ Complaint, Defendants

admit so much of the first sentence of this paragraph as indicates that Ms. Delgado visited the

DTA local office in Lowell, Massachusetts on June 24, 2011. They lack knowledge or

information sufficient to form a belief about the truth of the allegations contained in the

remainder of this paragraph.

With respect to the fourth (and final) paragraph of Paragraph 6 of Plaintiffs’ Complaint,

Defendants admit that DTA/EOHHS records show that Ms. Delgado has received SNAP benefits

since at least 2001, and that she has been eligible for MassHealth on and off since about 1990.



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remaining allegations contained in this paragraph.

7. With respect to the first two paragraphs of Paragraph 7 of Plaintiffs’ Complaint,


allegations contained in these two paragraphs.

With respect to the third (and final) paragraph of Paragraph 7 of Plaintiffs’ Complaint,

Defendants deny the entirety of this paragraph.

8. Defendants lack knowledge or information sufficient to form a belief about the

truth of the allegations contained in Paragraph 8 of Plaintiffs’ Complaint. With respect to any

allegations in Paragraph 8 that Defendants have violated, are violating, or will violate the

NVRA, Defendants deny them.

9. Defendants admit the first sentence of this paragraph. To the extent responses are

required to the legal conclusions contained in the remainder of this paragraph—which are not


state that Secretary Galvin’s responsibilities are set forth in various constitutional provisions,

statutes, and regulations, which speak for themselves.

10. Defendants admit the first sentence of this paragraph. With respect to the second

sentence of this paragraph, Defendants state that EOHHS “administers” the public assistance

programs identified in this sentence insofar as it oversees the various state agencies or offices

that are directly responsible for administering these programs. To the extent responses are

required to the legal conclusions contained in the remainder of this paragraph—which are not





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11. Defendants admit the first sentence of this paragraph. With respect to the second

sentence of this paragraph, Defendants admit that DTA administers the SNAP, EAEDC, and

TAFDC programs in Massachusetts, but denies that it administers the MassHealth program. To

the extent responses are required to the legal conclusions contained in the remainder of this

paragraph—which are not “allegations” of fact under Fed. R. Civ. P. 8(b)—Defendants deny

them. Defendants further state that the provisions of law cited by Plaintiffs in this paragraph


FACTUAL ALLEGATIONS

12.

To the extent responses are required to the legal conclusions contained in this




13. To the extent responses are required to the legal conclusions contained in this












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19.

Admitted.











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24.





25. Admitted.

26. Defendants admit so much of the first sentence of this paragraph as states that

Defendant Galvin is the Secretary of the Commonwealth and the chief election official in

Massachusetts. To the extent responses are required to the legal conclusions contained in the


Defendants deny them. Defendants further state that Secretary Galvin’s responsibilities are set

forth in various constitutional provisions, statutes, and regulations, which speak for themselves.

27. Defendants admit the first sentence of this paragraph insofar as DTA

“administers” SNAP, TAFDC, and EAEDC benefits, and EOHHS “administers” MassHealth.

To the extent responses are required to the legal conclusions contained in the remainder of this




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28. Denied.

29. Defendants deny the first sentence of this paragraph. Defendants lack knowledge

or information sufficient to form a belief about the truth of the allegations contained in the

remainder of this paragraph. Further answering, Defendants state that, to the extent Plaintiffs

rely on publicly-available documents in making the allegations contained in this paragraph, those

documents speak for themselves.

30.

Defendants deny the first sentence of this paragraph. They admit the third

sentence of this paragraph. To the extent responses are required to the legal conclusions

contained in the second sentence of this paragraph—which are not “allegations” of fact under

Fed. R. Civ. P. 8(b)—Defendants deny them. Defendants further state that the provisions of law

and other authorities cited by Plaintiffs in this paragraph speak for themselves. Defendants lack

knowledge or information sufficient to form a belief about the truth of the allegations contained

in the remainder of this paragraph. Further answering, Defendants state that, to the extent

Plaintiffs rely on documents provided to them by DTA in making the allegations contained in

this paragraph, those documents speak for themselves.

31. Defendants admit so much of the first sentence of this paragraph as indicates that

DTA provided data to Plaintiffs’ counsel in response to a public records request; they deny the

remainder of this sentence. Defendants lack knowledge or information sufficient to form a belief

about the truth of the allegations contained in the remainder of this paragraph. Further

answering, Defendants state that, to the extent Plaintiffs rely on documents provided to them by

DTA in making the allegations contained in this paragraph, those documents speak for



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themselves. With respect to any allegations in this paragraph that Defendants have violated, are

violating, or will violate the NVRA, Defendants deny them.

32. With respect to the first paragraph of Paragraph 32 of Plaintiffs’ Complaint,

Defendants deny the first sentence of this paragraph and the footnote contained within this

paragraph. With respect to the remainder of this paragraph, Defendants state that BEACON is

an operating system, not a “computerized process”, and deny the allegations in this paragraph as

they relate to a client’s “change of address,” but otherwise admit the remainder of this paragraph.

With respect to the second (and final) paragraph of Paragraph 32 of Plaintiffs’ Complaint,

Defendants admit so much of the first sentence of this paragraph as indicates that certain steps in

the BEACON system require a “hard stop,” but deny that BEACON is a “computerized process.”


allegations contained in the remainder of this paragraph. Further answering, Defendants state

that, to the extent Plaintiffs rely on documents provided to them by DTA in making the

allegations contained in this paragraph, those documents speak for themselves.

33.

Denied.

34. Defendants deny the first, fourth, and fifth (and final) sentences of this paragraph.

To the extent responses are required to the legal conclusions contained in the second and third

sentences of this paragraph—which are not “allegations” of fact under Fed. R. Civ. P. 8(b)—


this paragraph speak for themselves.



them. Defendants further state that the provisions of law cited and documents relied upon by



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Plaintiffs in this paragraph speak for themselves. With respect to the third (and final) sentence of

this paragraph, Defendants deny the allegations contained in this sentence.


truth of the allegations contained in this paragraph. With respect to any allegations in this

paragraph that Defendants have violated, are violating, or will violate the NVRA, Defendants

deny them.

37. To the extent responses are required to the legal conclusions contained in the first

sentence of this paragraph—which are not “allegations” of fact under Fed. R. Civ. P. 8(b)—


this sentence speak for themselves. Defendants deny the remainder of this paragraph. Further

answering with respect to the remainder of this paragraph, Defendants state that the “Virtual

Gateway” described in Paragraph 37 of Plaintiffs’ Complaint is an internet portal designed by

EOHHS that provides the general public, medical providers, community-based organizations and

EOHHS staff with online access to information about health and human services and how to

apply for such services. With respect to Food Stamp (or “SNAP”) benefits administered by

DTA, while an applicant can initiate an application for such benefits via the Virtual Gateway, the

applicant cannot complete the application except via an in-office or telephone interview, at

which point DTA performs the protocols required by the NVRA. With respect to MassHealth

benefits, an individual cannot apply for such benefits via the Virtual Gateway; only a Medicaid

provider may apply for benefits on behalf of a patient via the Virtual Gateway. Use of the

Virtual Gateway therefore does not constitute an “application for” public benefits, or a

“recertification, renewal, or change of address form relating to” such benefits that would trigger

the requirements of the NVRA. 42 U.S.C. § 1973gg-5(a)(6)(A).



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speak for themselves. Defendants admit that the Part I, Article IX of the Declaration of Rights of

the Massachusetts Constitution provides an equal right to vote to all qualified citizens of the

Commonwealth.

39. Defendants admit that Plaintiff New England United for Justice (“NEU4J”) sent

the letter described in this paragraph and attached as Exhibit A to Plaintiffs’ Complaint to

Defendants on or around December 8, 2011. Defendants further state that the contents of that

letter, as well as the provisions of law cited by Plaintiffs in this paragraph, speak for themselves.

Defendants deny the last sentence of this paragraph.

40. Defendants admit so much of the first sentence of this paragraph as states that

Defendants met with representatives for some of the Plaintiffs on February 9, 2012; they deny so

much of this sentence as suggests that Defendants have violated, are violating, or will violate the

NVRA. Defendants deny the remainder of this paragraph. Further answering, Defendants state

that after the January 9, 2012, meeting among the parties, Defendants decided that it would be

more productive and conducive to resolution of the dispute to provide a letter to the Plaintiffs

detailing in writing the numerous existing policies and procedures in place at DTA and Secretary

Galvin’s Office (among other agencies), as well as several changes in such policies and

procedures that these offices had made or would make in the near future to address concerns over

compliance with the NVRA. To that end, Defendants (through the Elections Division of

Secretary Galvin’s Office) sent Plaintiffs a letter on March 6, 2012, explaining these items. (A

copy of this March 6 letter is attached as Exhibit A to this Answer.) Although the March 6 letter



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plainly states that “[w]e would be happy to receive any further input you may have, as we move

forward in our administration of the NVRA,” Defendants heard nothing from Plaintiffs in

response to the March 6 letter until the day before Plaintiffs filed this Complaint on May 15,

2012, when Defendants received a letter from Plaintiffs’ counsel stating their intent to sue

Defendants under the NVRA.

41. With respect to the first sentence of the first paragraph of Paragraph 41 of

Plaintiffs’ Complaint, Defendants admit that they sent the March 6, 2012, response letter to the

recipients listed in the letter (see Exhibit A to this Answer for a copy of the March 6 letter), but

deny the remainder of this paragraph. Further answering, Defendants state that the March 6

letter from Defendants to Plaintiffs speaks for itself. With respect to any allegations in this

paragraph that Defendants have violated, are violating, or will violate the NVRA, Defendants

deny them.

With respect to the second paragraph of Paragraph 41 of Plaintiffs’ Complaint,

Defendants state that to the extent responses are required to the legal conclusions contained in

this paragraph—which are not “allegations” of fact under Fed. R. Civ. P. 8(b)—Defendants deny

them. Defendants further state that the March 6 letter from Defendants to Plaintiffs discussed in

this paragraph speaks for itself. With respect to any allegations in this paragraph that Defendants

have violated, are violating, or will violate the NVRA, Defendants deny them.

42. Defendants admit the allegations in this paragraph only insofar as the quoted

language appears in the March 6 letter from Defendants. Defendants deny the remainder of this

paragraph. Defendants further state that the March 6 letter from Defendants to Plaintiffs

discussed in this paragraph speaks for itself. (See Exhibit A to this Answer for a copy of the



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March 6 letter.) With respect to any allegations in this paragraph that Defendants have violated,

are violating, or will violate the NVRA, Defendants deny them.




this paragraph speaks for itself. (See Exhibit A to this Answer for a copy of the March 6 letter.)

With respect to any allegations in this paragraph that Defendants have violated, are violating, or

will violate the NVRA, Defendants deny them.

44.




this paragraph speaks for itself. (See Exhibit A to this Answer for a copy of the March 6 letter.)

With respect to any allegations in this paragraph that Defendants have violated, are violating, or

will violate the NVRA, Defendants deny them.

45.

Denied.


truth of the allegations contained in this paragraph.



48. Defendants admit the allegations in this paragraph insofar as DTA/EOHHS

records show that Ms. Delgado has received SNAP benefits since at least 2001, and that she has

been eligible for MassHealth on and off since about 1990. Defendants admit that EOHHS

records show that Ms. Delgado first applied for MassHealth benefits through a DTA local office,



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and that she has visited the MassHealth enrollment center in Tewksbury, Massachusetts, on at

least one occasion. Defendants lack knowledge or information sufficient to form a belief about

the truth of the allegations contained in the remainder of this paragraph.

49. Defendants admit so much of the first sentence of this paragraph as indicates that

Ms. Delgado visited the DTA local office in Lowell, Massachusetts on June 24, 2011.


allegations contained in the remainder of this paragraph.






truth of the allegations contained in this paragraph, except insofar as this paragraph alleges that

Defendants have violated, are violating, or will violate the NVRA, which Defendants deny.

53.

Defendants lack knowledge or information sufficient to form a belief about the











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CLAIMS FOR RELIEF

56. Defendants re-allege and incorporate by reference their answers to the

introductory paragraphs and Paragraphs 1 through 55 of Plaintiffs’ Complaint as if set forth fully

herein.

57. Denied.

58. Denied.

PRAYERS FOR RELIEF

To the extent a response is required to Plaintiffs’ prayers for relief on pages 29-31 of their

Complaint, Defendants deny the factual allegations contained therein, and ask that this Court

deny Plaintiffs’ request for the relief specified and enter judgment in favor of Defendants.

SECOND DEFENSE

Plaintiffs lack standing to prosecute this case, and/or their Complaint fails to state a claim

upon which relief can be granted, because they failed to comply with the notice requirements of

the NVRA prior to filing this action. 42 U.S.C. § 1973gg-9(b).

Specifically, the written notice sent by Plaintiff NEU4J to the Defendants on

December 8, 2011 (see Paragraph 39 of and Exhibit A to Plaintiffs’ Complaint) identified neither

Plaintiff Delgado nor Plaintiff NAACP-NEAC as a potential plaintiff. Defendants therefore had

no notice of Delgado’s or NAACP-NEAC’s alleged injuries or allegations until Plaintiffs filed

suit on May 15, 2012. Plaintiffs Delgado and NAACP-NEAC therefore have not complied with

the notice requirements of the NVRA, and must accordingly be dismissed from the case.

Moreover, none of the Plaintiffs gave Defendants an adequate opportunity to correct any

putative violation of the NVRA identified in the December 8, 2011 letter. As described in

Paragraph 40 of this Answer, above, Defendants sent Plaintiffs a letter on March 6, 2012,



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identifying the numerous steps Defendants had taken to address and/or cure any putative

violation by Defendants of the NVRA, and inviting further discussion with Plaintiffs. (See also

Exhibit A to this Answer.) Defendants heard nothing from Plaintiffs in response to Defendants’

March 6 letter until the day before Plaintiffs filed their complaint, when Defendants received a

letter from Plaintiffs’ counsel indicating that they would be filing suit against the Defendants

under the NVRA. But the NVRA specifies that a private cause of action may be maintained only

if “a person who is aggrieved by a violation of” the NVRA sends written notice of the alleged

NVRA violation(s) to the state’s chief election official (here, Secretary Galvin), and “[i]f the

violation is not corrected within 90 days after receipt of a [written] notice” of the alleged

violation(s). 42 U.S.C. §§ 1973gg-9(b)(1), (b)(2). Here, even if there was a violation of the

NVRA by Defendants prior to Plaintiffs’ December 8, 2011 letter—which Defendants deny—

Defendants’ March 6, 2012 letter made clear that Defendants had corrected any putative NVRA

violation. Instead of apprising Defendants of whether and how the changes identified in the

March 6 letter failed to address Plaintiffs’ concerns or failed to cure any putative violation of the

NVRA, Plaintiffs simply filed suit. Plaintiffs’ failure to comply with the notice-and-cure

provisions of the NVRA, 42 U.S.C. § 1973gg-9(b), means that they lack standing to prosecute

this action, and/or that their Complaint fails to state a claim upon which relief can be granted.

THIRD DEFENSE

Plaintiffs NEU4J and NAACP-NEAC lack standing to prosecute this case, and this Court

therefore lacks jurisdiction over the subject matter of this action as it pertains to them, for the

additional reason that those Plaintiffs have not suffered the requisite “injury in fact” that would

give rise to Article III and/or jurisprudential standing, either in their own behalf or in any

representative capacity.



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FOURTH DEFENSE

Plaintiffs Delgado lacks standing to prosecute this case, and this Court therefore lacks

jurisdiction over the subject matter of this action as it pertains to her, because she has not

suffered the requisite “injury in fact” that would give rise to Article III and/or jurisprudential

standing.

FIFTH DEFENSE

Plaintiffs’ claims are now moot in light of the steps taken by Defendants to cure any

putative violation of the NVRA, as evidenced by their March 6, 2012, letter to Plaintiffs. (See

Paragraph 40 of andExhibit A

to this Answer). The changes made by Defendants establish that

there is no longer a live controversy between the parties, and so the case should be dismissed as

moot.

SIXTH DEFENSE

To the extent Plaintiffs make claims against the Defendants based on putative violations

of state law, such claims are barred by the Commonwealth’s sovereign immunity from suit under

the Eleventh Amendment to the United States Constitution.

ADDITIONAL DEFENSES

Defendants reserve the right to raise any and all defenses that may become apparent or

available during the course of the proceedings in this case.

WHEREFORE, Defendants request that the Court deny Plaintiffs the relief they request

in the Complaint, dismiss the Complaint with prejudice, and enter judgment in favor of

Defendants.



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Respectfully submitted,

WILLIAM F. GALVIN, in his official capacity as

Secretary of the Commonwealth of Massachusetts,

JUDYANN BIGBY, M.D., in her official capacity

as Secretary of the Executive Office of Health andHuman Services, and DANIEL J. CURLEY, in his

official capacity as Commissioner of the

Department of Transitional Assistance,

By their attorneys,

MARTHA COAKLEY

ATTORNEY GENERAL

/s/ Timothy J. CaseyTimothy J. Casey (BBO No. 650913)

[email protected] (617) 963-2043

Tori T. Kim (BBO No. 651721)

[email protected] (617) 963-2022

Assistant Attorneys General

Government BureauOne Ashburton Place

June 8, 2012 Boston, Massachusetts 02108-1598

CERTIFICATE OF SERVICE

I hereby certify that this document, filed through the ECF system, will be sentelectronically to the registered participants as identified on the Notice of Electronic Filing (NEF),

and paper copies will be sent by e-mail and regular mail to individuals indicated as non-

registered participants (if any) on June 8, 2012.

/s/ Timothy J. Casey

Timothy J. CaseyAssistant Attorney General



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Case 1:12-cv-10872-DJC Document 24-1 Filed 06/08/12 Page 1 of 10


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The Commonwealth of Massachusetts

William Francis Galvin, Secretary of the Commonwealth

Elections Division

March 6, 2012

By Email and U.S. Mail

Ms. Lisa J. Danetz

Demos

358 Chestnut Hill, Suite 303

Brighton, MA 02135

Ms. Nicole Zeitler

Project Vote

737 1/2 8

t

Street, SE

Washington, DC 20003

Re: National Voter Registration Act

Dear Attorneys Danetz, Hall and Zeitler:

Mr. Rahsaan Hall

Lawyers' Committee for Civil Rights

Under Law of the Boston Bar Association

294 Washington Street, Suite 443

Boston, MA 02108

I write in response to your letter to Secretary Galvin dated December 8, 2011, in which

Dr. Judy Ann Bigby, Secretary of Executive Office of Health and Human Services

( EOHHS ), Mr. Daniel J. Curley, Commissioner of the Department of Transitional

Assistance ( DTA ) and Mr. John Auerbach, Commissioner of the Department of Public

Health ( DPH ) were copied. In that letter you allege, on behalf of New England United

for Justice (hereinafter, NEU4J ) and others, that Massachusetts is not in compliance

with Section 7 of the National Voter Registration Act of 1993 ( NVRA ), 42 U.S.C.

§ 1973gg-5. You claim that Massachusetts does not provide voter registration services at

its public assistance offices as mandated by NVRA. Your letter summarizes what you

indicate are the results of your investigation of practices and policies of these public

assistance offices.

At the end of your communication, you state that your letter serves as a notice letter

pursuant to 42 U.S.C. § 1973gg-9(b) in an attempt to obtain compliance with the public

assistance provisions of the NVRA without the need for litigation. You conclude by

stating that you are prepared to meet with us to assist in our development of a

comprehensive plan for compliance. You indicate that in the absence of such a plan, you

will initiate litigation at the conclusion of the statutory 90-day waiting period.

Immediately following receipt of your letter, I spoke with Lisa Danetz via telephone on

December 12, 2011, to schedule a meeting to discuss the concerns raised. After

consulting with Atty. Danetz and the various departments named in your correspondence

to determine a mutually agreeable date on which all parties were available to meet, we

One Ashburton Place, 17th Floor, Boston,

Massachusetts 02108

(617) 727

2828 • I 80 0

46 2

VOTE (8683)

website: www.sec.state.ma.us/ele e-mail: elections c sec.state.ma.us



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arranged a meeting on February 9, 2012 in the Office of the Secretary of the

Commonwealth. The meeting was attended by representatives of the Secretary's Office,

EOFIFIS, DTA, and DPH, as well as attorneys from Demos, Project Vote and Lawyers

Committee for Civil Rights representing NEU4J. At that meeting, attorneys for NEU4J

provided a bullet point summary containing what NEU4J believes to be elements of a

successful program for agency voter registration under the NVRA. At the conclusion of

the meeting, representatives of the Commonwealth agreed to review the issues raised and

proposals offered, and provide a response.

This Office, as well as EOHHS, DTA, and DPH, have been and continue to be committed

to facilitating and administering those programs which provide qualified persons the

opportunity to register and vote in Massachusetts, and, in particular, to complying with

the requirements of the NVRA. To that end, we welcomed the opportunity to meet with

you and discuss your concerns in an effort to continually improve voter registration

opportunities.

In response to the issues and concerns you raised at our meeting, we attach a detailed

description of the voter registration practices of each relevant office or agency

represented at the meeting. You will note that each office or agency has addressed the

core concern raised in your December 8

t

letter and at the February 9

t meeting—that

public assistance agencies are distributing voter registration forms only when individuals

check Yes on the NVRA declination form. Specifically, changes have already been

made or will be made to our policies and practices to ensure that voter registration forms

are distributed even when individuals leave the declination form blank. We also are

continuing to seek ways to improve our existing programs through enhanced training and

oversight in order to facilitate voter registration opportunities. The attached documents

describe such efforts, and, to the extent any on-going issues are identified regarding voter

registration practices, this office and all of the agencies represented at our meeting will

proactively address those issues moving forward.

Please understand that neither this collective response, nor our February 9 t h

meeting,

should be construed as an acknowledgment that the Commonwealth is not in compliance

with provisions of the NVRA. Rather, those actions were taken in an effort to work with

you to address and respond to your concerns relating to the NVRA.

The Secretary of the Commonwealth, as well as EOHHS, DTA, and DPH, are committed

to ensuring that all qualified citizens be afforded an opportunity to register and vote in

Massachusetts. We would be happy to receive any further input you may have, as we

move forward in our administration of the NVRA.

Sincerely„

f

i

(1

r et,

Michelle

K . Tassinari

Director/Legal Counsel

Elections Division

2



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Office of the Secretary of the C omm onwealth

With regard to the Secretary's Office, both in your December letter and at the February

9 t h

meeting, you emphasized the issue of the policy for handling declination forms that

are left blank or not signed. We informed you during our meeting that this Office has

revised its policy in this regard, and that agencies would be informed that in such an

instance where the individual leaves the declination form blank or does not sign it, a

Mail-In Voter Registration Affidavit will be distributed to the individual. We have

revised our Agency Script and Workbook to reflect this update.

Staffing: Since the NVRA's initial implementation, the Secretary's Office has at all

times maintained a NVRA coordinator in the Elections Division.

Also, pursuant to regulations promulgated by the Secretary's Office, 950 C.M.R.

§ 57.05(2)(a), each voter registration agency must designate a person in the agency who

is responsible for voter registration. The NVRA coordinator on the state level has always

worked with the contacts from each public assistance agency.

Training:

Consistently since the adoption of the NVRA, the state coordinator has met

with agency contacts to provide information and training on the NVRA and to address

any issues that arise. Additionally, the Secretary's Office has always made itself

available to conduct trainings for any agency. Moving forward, the Secretary's Office is

preparing a power point training module that may be used by any agency and will be

made available on our website.

Voter Registration Paperwork and Materials:

The Secretary of the Commonwealth

makes the following paperwork and materials available to all public assistance voter

registration agencies:

-Agency (two-part) Voter Registration Affidavits (available in English and Spanish);

-Mail-In Voter Registration Affidavits in English, Spanish, Russian, Chinese,

Vietnamese, Khmer, Portuguese, Haitian-Creole, Cape Verdean;

-Declination Forms;

-Agency Voter Registration Workbook (recently revised);

-

Agency Script (recently revised);

-

Envelopes;

-

Clerks List, which has the addresses for each local election official;

-

Violations of Election Laws/Penalties Posting; and

-Register to Vote Here signs.

Computerized Process:

As part of the Voter Registration Information System, once a

voter registration application is received by a municipality, the local election official

enters the applicant's information, including the code of the agency where the applicant

registered if applicable. However, the local election officials do not have access to the

codes themselves.

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Voter Registration Offers and Distribution of Voter Registration Forms:

Pursuant to the NVRA, as well as state law and regulations promulgated by the Secretary

of the Commonwealth, Mass. G.L. c. 51 § 42G and 950 C.M.R. § 57.05(2)(b), the

declination form must be distributed with each application for service or assistance,

recertification, renewal or change of address. All voters who select that they wish to

register to vote are provided with a voter registration form and the same level of

assistance in filling out the form as is provided with completing the agency's own forms.

950 C.M.R. § 57.05(2)(d)-(e). If an individual leaves the declination form blank, a mail-

in form will be distributed to them. If an agency is distributing its application for service,

recertification, renewal or change of address by mail, the agency must include a mail-in

voter registration form. 950 C.M.R. § 57.05(2)(g).

Mail-In voter registration forms must also be available at voter registration agencies.

Additionally, all voter registration agencies must accept completed voter registration

forms.

Voter Registration Assistance:

The same level of assistance must be provided in

completing the voter registration form as is provided by the agency in completing its own

forms, unless the registrant refuses assistance. 950 C.M.R. § 57.05(2)(e).

Transmittal

Transmittal of voter registration forms by voter registration agencies is

governed by state law and regulation, and such forms must be transmitted to the local

election official of the city or town where the individual is registering to vote within 5

days of completion. Mass. G.L. c. 51 § 42G and 950 C.M.R. § 57.05(3). The Secretary's

Office provides the listing of local election officials and envelopes to each agency for

such transmittal.

Oversight

This Office has general oversight over the NVRA process and as such,

proactively meets with agency contacts and addresses any issues that arise. Anytime our

Office is presented with issues relative to voter registration at public assistance offices,

we immediately contact the agency coordinator regarding such matter. This Office

continues to monitor NVRA compliance, and will work with public assistance agencies

to address any issues that are identified.

Policy Documents and Regulations:

The Code of Massachusetts Regulations, 950

C.M.R. § 57.05, provides the procedures to be followed by Voter Registration Agencies,

including public assistance offices. This Office also issues the Agency Voter

Registration Workbook and Agency Script.

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WIC Program DPH)

Staffing:

The Massachusetts WIC program has had and continues to have a designated

NVRA Coordinator. Local WIC Program Directors have been and continue to be the

designated NVRA Coordinators for their offices.

Training:

WIC uses a train-the-trainer model with the local WIC programs. State and

local level trainings have been done periodically, ever since WIC was designated as a

public voter registration agency. Local Program Directors were most recently trained on

the revised Program Manual chapter on Motor Voter and the module for National Voter

Registration on February 3, 2012. Training materials for the February 2012 session were

distributed in advance, on January 27, 2012.

Subsequently, Local Program Directors

reviewed the training materials which highlighted motor voter policy and procedures with

local program staff. A NVRA update is on the agenda for the next WIC business meeting

of Local Program Directors and Senior Nutritionists scheduled for March 15, 2012.

All newly hired program staff attends mandatory new staff training that includes motor

voter policy and procedures. The training is held at the WIC Learning Center in

Framingham. WIC will continue to include NVRA materials in the training provided to

new and existing staff.

Voter Registration Paperwork & Materials:

NVRA Signage:

While NVRA signage has been available at WIC locations throughout

Massachusetts, as soon as WIC received a copy of the December 8

t h

letter, WIC took the

following actions:

•

Ordered and distributed additional signs ('Violations of Elections Laws') to

local WIC programs in December 2011.

•

Ordered additional signs ('Register to VOTE HERE) and distributed to

the local WIC Programs on January 27, 2012.

• Instructed all local WIC offices to post and maintain NVRA signage at all

times.

Voter R egistration Forms

(applications and mail-in and declination forms): The Secretary

of the Commonwealth provided updated voter registration application forms (with a

current field for political party affiliation for the 2012 elections) to WIC which in turn

distributed updated forms to all WIC program sites. Samples of the updated forms were

scanned into the updated 2012 Program Manual Chapter on Motor Voter. The Secretary's

Office has translated and provided voter registration forms and materials in Spanish and

Chinese for local WIC programs serving families whose first language is not English and

who have limited English proficiency.

Local WIC programs have order sheets provided by the Secretary's Office that they can

use to order mail-in voter registration forms (See SOC attachment for list of translated

forms) and any other voter registration supplies directly from the Secretary's Office.

'Copies of the materials were made available to NEU4J attorneys on February 14, 2012.

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WIC uses and retains for 22 months Declination Forms supplied by the Secretary of the

Commonwealth.


Since 2010, WIC integrated NVRA questions into WICs

computer system, Eos ; these required fields must be completed in order for staff to

complete the certification and recertification and change of address screen. The NVRA

screen is a hard stop ; in other words WIC staff cannot proceed without completing the

following questions:

Are you registered to vote at this address? Select 'Yes or No'.

If not, would you like to register to vote today? Select 'Yes or

No'.

Voter Registration Offers and Distribution of Voter Registration Forms: WIC offers

and distributes Voter Registration Application Forms to all applicants/participants when

applying for certification, recertification, and reports of change of address unless the

applicants/participants answer NO to the NVRA questions in Eos and on the

Declination Form. WIC also distributes Voter Registration Application Forms to others

who wish to register at a WIC site.

If the person does not want to complete the Voter Registration Application Form at the

WIC office, WIC distributes a Mail-In Voter Registration Form. The Program Manual

was revised to state,

and the 2012 training module 3

expressly instructs, that program

staff offer (i.e. distribute) a Mail-In Voter Registration Form, if the applicant/participant

leaves Declination Form Part A blank.

Voter Registration Assistance including language assistance):

WIC program staff

offer assistance in filling out the Voter Registration Application Form to all

applicants/participants at certification, recertification, and reports of change of address

who are not registered to vote at the current address and who indicate yes to the NVRA

question in Eos and on the Declination Form. WIC staff also offer assistance to others

who wish to register at a WIC site, as well as applicants/participants whose first language

is not English.

WIC offices include bilingual and bicultural staff who offer language assistance, as

needed. If program staff offer language assistance applicants/participants whose first

language is not English at certification, recertification, and reports of change of address,

they offer the same level of assistance with voter registration.

Transmittal:

Local WIC Program Directors or their designees at different program sites

are responsible for transmitting completed applications to city and town clerks within 5

days of completion. Local WIC programs use the mailing envelopes provided by the

Secretary's Office which contain the Secretary's return address to keep the

confidentiality of the registration location.

See, Program Manual page 2 Note , revising former page 8.

3 See, Power Point slides 30 and 31.

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All local WIC Programs have been provided with a hard copy of the MA City and Town

Directory of City/Town Election Offices. This resource also is posted on the Secretary of

the Comm onwealth s web site at http ://www, sec . state . ma. us/el e/el e c lk/c lki dx. htm.

Oversight including data reporting and review): The MA WIC NVRA Coordinator

receives and reviews monthly tallies from local program directors on the number of

registrations completed at each local WIC Program.

The MA WIC NVRA Coordinator has and continues to follow-up, as needed, with

programs reporting few or no registrations to review the procedures with staff The MA

WIC NVRA Coordinator annually compiles a spreadsheet tabulating monthly tallies for

each local program for every state fiscal year and sends the annual spreadsheet to all local

program directors.

4

The MA WIC Management Evaluation Team monitors local WIC programs on a

biannual basis for compliance with numerous performance management standards. WIC

included an evaluation standard for motor voter procedures after WIC was designated as

a public voter registration agency. WIC is starting a new round of biannual management

evaluations that includes a standard for motor voter. Observation of motor voter

procedures is now part of the observations conducted at the management evaluation of

program staff The MA WIC Management Evaluation Team monitors and follows up as

needed on issues identified during the evaluation of motor voter and other management

evaluation standards.

Policy Documents and Regulations:

WIC provides the following policy documents:

)> WIC Memo 038 (January 27, 2012)

•

Revised Program Manual Chapter on Motor Voter (distributed to local

WIC programs and to USDA January 2012)

5

• National Voter Registration Act Training Workshop for local WIC

Programs materials (provided to Program Directors on January 27, 2012 in

advance of the training session delivered on February 3, 2012)

•

FY12 Management Evaluation Program Service Standards

•

FY12 Management Evaluation Observation Worksheet (Certification and

Recertification)

DPH provided spreadsheets with tallies for SFY 2005-2011 in response to the LCCRUL

public records request.

5

DPH provided an earlier version of the Program Manual in response to the LCCRUL

public records request.

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Department of Transitional Assistance

Staffing

DTA has had and continues to have a designated NVRA Coordinator on staff

Training

All new caseworkers are trained on their responsibilities under the NVRA. As

part of ongoing training protocol, NVRA procedures are described and maintained in an

operations memorandum which is accessible and available to all staff These procedures

describe how local office staff must implement voter registration offers and distributions

of voter registration forms, the duty to assist and transmittal timelines. Most recently, in

May 2011, the Department reissued its voter registration procedures memorandum to its

field workers (Operations Memo 2011-18). A copy of the 2011 voter registration

procedures was provided to NEU4J, in response to its public records request. In March

2012, this memorandum will be reissued to include revisions stating that an individual

who does not explicitly decline to register to vote (i.e., by not signing the declination

form or leaving it blank) will have a mail-in registration form distributed to him or her.

In addition, a session on the NVRA has been scheduled at the March 8th statewide

directors' meeting. This informational training session is intended to ensure that local

office management is up-to-date on NVRA procedures. Subsequent to this meeting, all

local offices will hold in-house trainings for all line staff to further ensure that NVRA

procedures are appropriately being followed.

Voter Registration Paperwork and Materials:

The Secretary of the Commonwealth

provided updated voter registration application forms to DTA, which in turn distributed

updated forms to its local offices. The Secretary's Office has translated and provided

voter registration forms and materials in other languages besides English for local DTA

offices serving families whose first language is not English and who have limited English

proficiency.

In addition, the Department has always had voter registration signs available to be posted

in its local offices. In January of this year, the Department sent all its offices signs in

English and Spanish for posting in their waiting rooms regarding the opportunity to

register to vote at DTA. The Department's Right to Know pamphlet, which is provided to

all benefit applicants, was revised in January to include clients' voter registration rights.


The Department's eligibility system, BEACON, requires that all

the appropriate voter registration questions be asked for its benefit program

applicants/participants. BEACON processing of applications, recertifications and

reevaluations, including changes of address made during these procedures, cannot be

completed (i.e., a hard stop ) without asking the client these questions (e.g., Is anyone

18 or older.

. . . currently NOT registered to vote at your current address? ; Does this

person wish to vote? ).

Voter Registration Offers and Distribution of Voter Registration Forms:

DTA

procedures require local office staff to offer and distribute voter registration forms to

clients during applications, recertifications and reevaluations, and changes of address. A

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client who wishes to register outside the agency is provided with a mail-in registration

form. As noted, DTA's voter registration procedures will be revised to state that a client

who does not explicitly decline to register to vote (i.e., by not signing the declination

form or leaving it blank) will have distributed to them a mail-in voter registration form.

This is intended to be consistent with the recently revised Agency Workbook from the

Secretary of the Commonwealth's Office.

Voter Registration Assistance: The Department offers assistance to clients in filling out

voter registration forms, at the same level as provided during applications, reevaluations,

and changes of address for applicants/participants of DTA benefits. DTA offices include

bilingual and bicultural staff who offer language assistance, as needed. If program staff

offer language assistance to applicants/participants whose first language is not English

for applications, recertifications and reevaluations, and changes of address, they offer the

same level of assistance with voter registration.

Transmittal: In accordance with NVRA and state law, local DTA offices are

responsible for transmitting completed voter registration applications to city and town

clerks within 5 days of completion. A copy of the MA City and Town Directory of

City/Town Election Offices was made available to local offices through the Secretary of

the Commonwealth's website.

Oversight: The Department provides oversight of the NVRA via its NVRA Coordinator

with guidance and input from the Secretary of the Commonwealth's Office. As noted,

DTA plans to increase training opportunities for field workers and local office

management about voter registration procedures. The Department will also designate a

local office manager, who will see that voter registration procedures are being met, forms

are available and posters posted. Additionally, the BEACON system tracks data on voter

registration, such as the number of registrations completed at local DTA offices. DTA's

review of this data allows it to identify local offices that appear to have low registration

rates and to follow up as needed. DTA is increasing its monitoring of NA/RA activities

during this election year, and will work to address any issues that are identified in 2012

and subsequent years.

Policy Documents and Regulations: DTA maintains the following documents

regarding the NVRA:

•

Voter registration procedures operations memoranda (May 2011, to be revised);

•

BEACON Users' Guide and BEACON Help Instructions; and

•

Voter registration materials provided by the Secretary's office, including

Declination Forms (kept for 22 months), updated voter registration and mail-in

voter registration forms, MA City and Town Directory of City/Town Election

Offices, and Register to Vote Here signage
