FOR THE EASTERN DISTRICT OF LOUISIANA LUTHER …moritzlaw.osu.edu/electionlaw/litigation/documents/Plaintiffs... · Civil Action No. 2:11 -cv 00926 JTM JCW Section “H” PLAINTIFFS’

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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF LOUISIANA

LUTHER SCOTT, JR., and LOUISIANA

STATE CONFERENCE OF THE

NAACP,

Plaintiffs,

v.

TOM SCHEDLER in his official capacity

as the Louisiana Secretary of State, RUTH

JOHNSON, in her official capacity as

Secretary of the Louisiana Department of

Children & Family Services, and BRUCE

D. GREENSTEIN, in his official capacity

as Secretary of the Louisiana Department of

Health & Hospitals,

Defendants.

Civil Action No. 2:11-cv-00926-JTM-JCW

Section “H”

PLAINTIFFS’ MOTION IN LIMINE SEEKING JUDICIAL NOTICE

NOW INTO COURT come Plaintiffs, LUTHER SCOTT, JR., and LOUISIANA STATE

CONFERENCE OF THE NAACP, and file the attached motion in limine seeking this Court to

take judicial notice of various EAC Reports introduced by Plaintiffs, specifically Plaintiffs’

Exhibits 222a – 222h. For the reasons set forth in detail in the accompanying Memorandum, the

Plaintiffs respectfully request that the Court grant this Motion.

Case 2:11-cv-00926-JTM-JCW Document 378 Filed 10/08/12 Page 1 of 3

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Respectfully submitted,

/s/ Dale E.Ho____________________

Dale E. Ho ([email protected])*

Natasha M. Korgaonkar

([email protected])*

Debo P. Adegbile

Elise C. Boddie

Ryan P. Haygood ([email protected])*

NAACP Legal Defense & Educational Fund, Inc.

(New York)

99 Hudson Street, Suite 1600

New York, NY 10013

212-965-2200

*MOTION FOR ADMISSION PRO HAC VICE

GRANTED

Ronald Lawrence Wilson

([email protected])

Ronald L. Wilson, Attorney at Law

701 Poydras Street, Suite 4100

New Orleans, LA 70139

504-525-4361

Michael B. de Leeuw


Israel David ([email protected])*

Fried, Frank, Harris, Shriver & Jacobson LLP

One New York Plaza

New York, NY 10004


GRANTED

Sarah Brannon ([email protected])*

Niyati Shah ([email protected])*

Michelle Rupp ([email protected])*

Project Vote

1350 Eye Street NW , Suite 1250

Washington, DC 20005

202-546-4173


GRANTED

Attorneys for Plaintiffs


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CERTIFICATE OF SERVICE

I hereby certify that on the 8 of October, 2012, I electronically filed the foregoing

Memorandum in Support of Motion to Strike Declarations and Documents Filed by Defendants

Johnson and Greenstein and for Sanctions with the Clerk of the Court using the CM/ECF system,

which will send a notice of electronic filing to persons electronically noticed. I further certify

that I mailed the foregoing document and the notice of electronic filing by first class mail to any

non-CM/ECF participant.

/s/ Dale E. Ho____________

8719512 8754630


1





NAACP,

Plaintiffs,

v.








Health & Hospitals,

Defendants.


Section ―H‖

PLAINTIFFS’ MEMORANDUM IN SUPPORT OF

MOTION IN LIMINE SEEKING JUDICIAL NOTICE

Plaintiffs file this motion in limine seeking this Court to take judicial notice of various

EAC Reports introduced by Plaintiffs, specifically Plaintiffs’ Exhibits 222a – 222h. These

exhibits are the reports entitled ―The Impact of the National Voter Registration Act of 1993 on

the Administration for Federal Office (collectively the ―EAC Reports‖)1. These reports represent

the official reports from the Federal Election Commission and the federal Election Assistance

Commission and thus rely on sources the accuracy of which cannot reasonably be questioned.

Accordingly, these exhibits are appropriate subjects for judicial notice. Fed. R. Evid. 201(b).

1 Please note that from 1995 through 2002 these reports were generated by the Federal Election Commission, and

then since 2003 the reports have been generated by the federal Election Assistance Commission. The change in the

responsibility for generating this report was enacted as part of HAVA (Pub.L. 107-252) in 2002.

Case 2:11-cv-00926-JTM-JCW Document 378-1 Filed 10/08/12 Page 1 of 5

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ARGUMENT

Exhibits 223-231 are reports are complied by federal government agencies, the Federal

Election Commission and the Election Assistance Commission, pursuant to the requirements of

the National Voter Registration Act, 42 U.S.C. 1973gg-7(a)(3). Certain information that the

Secretary submits to the federal government is included in these EAC reports, as is required of

the Secretary of State’s office in its capacity as ―chief election officer of the state.‖ La. Const.

Art. IV, § 7. See Pls.’ Exs. 223-231 (EAC Questionnaires).

The Federal Rules of Evidence provide that judicial notice may be taken of ―a fact that is

not subject to reasonable dispute because it . . . can be accurately and readily determined from

sources whose accuracy cannot reasonably be questioned.‖ Fed. R. Evid. 201(b)(2). A court

may take ―judicial notice of information contained in official government Internet web sites

under Rule 201 of the Federal Rules of Evidence.‖ In re Hyperion Found., Inc., No. 08-51288-

NPO, 2009 WL 2477392, at *3 n.7 (Bankr. S.D. Miss. Aug. 11, 2009); see also Kitty Hawk

Aircargo, Inc. v. Chao, 418 F.3d 453, 457 (5th Cir. 2005) (holding that judicial notice of a

union’s certification was proper because approval of the certification was available on the

agency’s own website). That logic applies where, as here, judicial notice is sought with respect

to any government publication.

Even if the Secretary of State were to argue that the methodologies were ―subject to . . .

dispute,‖ this Court may nevertheless take judicial notice of the fact of the reports themselves.

Cf. Brown v. Lippard, 472 F.3d 384, 387 (5th Cir. 2006) (holding that a court could take judicial

notice of the existence of testimony even if the fact to which the testimony related was itself

disputed). To the extent that Defendants seek to call into question the substance of the EAC

Reports, this does not change the fact that taking judicial notice is appropriate here.

Moreover, ―[t]he court . . . must take judicial notice if a party requests it and the court is


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supplied with the necessary information.‖ Fed. R. Evid. 201(c)(2). Because the EAC Reports

are appropriate subjects for judicial notice, now that Plaintiffs have so requested—and have

given notice to Defendants, see Fed. R. Evid. 201(e)—this Court is required to take judicial

notice of the EAC Reports.

CONCLUSION

For the aforementioned reasons, Plaintiffs respectfully request this Court take judicial

notice of the facts contained in Plaintiffs’ Exhibits 222a – 222h.


/s/ Dale E.Ho____________________




Debo P. Adegbile

Elise C. Boddie



(New York)


New York, NY 10013

212-965-2200


GRANTED


([email protected])




504-525-4361

Michael B. de Leeuw




One New York Plaza

New York, NY 10004



4

GRANTED




Project Vote



202-546-4173


GRANTED



5


I hereby certify that on the 8 of October, 2012, I electronically filed the foregoing

Memorandum in Support of Motion to Strike Declarations and Documents Filed by Defendants

Johnson and Greenstein and for Sanctions with the Clerk of the Court using the CM/ECF system,

which will send a notice of electronic filing to persons electronically noticed. I further certify

that I mailed the foregoing document and the notice of electronic filing by first class mail to any

non-CM/ECF participant.

/s/ Dale E. Ho____________

8719512 8754630




LUTHER SCOTT, JR. and the LOUISIANA

STATE CONFERENCE OF THE NAACP,

Plaintiffs,

v.

TOM SCHEDLER in his official capacity as the

Louisiana Secretary of State; RUTH

JOHNSON, in her official capacity as Secretary

of the Louisiana Department of Children &

Family Services; and BRUCE D.

GREENSTEIN in his official capacity as


Health & Hospitals,

Defendants.

Civ. No. 2:11-cv-00926-JTM-JCW

Section “H”

NOTICE OF SUBMISSION

PLEASE TAKE NOTICE that Plaintiffs Luther Scott, Jr. and the Louisiana State

Conference of the NAACP will bring the attached Motion In Limine Seeking Judicial Notice for

submission before the Honorable Judge Jane Triche Milazzo on the 15th day of October, 2012 at

8:15 a.m.


Dated: October 8, 2012


/s/ Dale E.Ho____________________




Debo P. Adegbile

Elise C. Boddie



(New York)


New York, NY 10013

212-965-2200


GRANTED


([email protected])




504-525-4361

Michael B. de Leeuw




One New York Plaza

New York, NY 10004


GRANTED




Project Vote



202-546-4173


GRANTED




I hereby certify that on October 8, 2012, I electronically filed the foregoing with

the Clerk of Court by using the CM/ECF system, which will send a notice of electronic

filing to counsel of record who are registered participants of the Court’s CM/ECF system.

I further certify that I mailed the foregoing document by first-class mail to counsel of

record who are not CM/ECF participants as indicated in the notice of electronic filing.

/s/ Dale E.Ho____________________




Debo P. Adegbile

Elise C. Boddie

Ryan P. Haygood


NAACP Legal Defense & Educational

Fund, Inc. (New York)


New York, NY 10013

212-965-2200

*MOTION FOR ADMISSION PRO HAC

VICE GRANTED

Counsel for Plaintiffs

8763300






NAACP,

Plaintiffs,

v.








Health & Hospitals,

Defendants.


Section “H”

ORDER

On Motion In Limine seeking this Court take judicial notice of various EAC Reports

introduced by Plaintiffs, specifically Plaintiffs’ Exhibits 222a – 222h, which are reports entitled

“The Impact of the National Voter Registration Act of 1993 on the Administration for Federal

Office, IT IS HEREBY ORDERED that these reports represent the official reports from the

Federal Election Commission and the federal Election Assistance Commission, rely on sources

the accuracy of which cannot reasonably be questioned, and this Court shall take judicial notice

of the same.

This ___ day of October, 2012.

____________________________________

HONORABLE JANE TRICHE MILAZZO
