Federal Appeals Court Rules That N.M. Violated Federal Law, Failing to Provide Voter Registration Applications to Public Assistance Clients

The federal Tenth Circuit Court of Appeals ruled yesterday that the State of New Mexico Human Services Department (HSD) violated Section 7 of the National Voter Registration Act of 1993 (NVRA) by improperly withholding voter registration applications from certain public assistance clients. The decision came in a federal lawsuit brought against state officials by a coalition voting rights groups and attorneys, including the Lawyers’ Committee for Civil Rights Under Law, Project Vote, and Dēmos; the Albuquerque law firm of Freedman Boyd Hollander Goldberg Ives & Duncan, and the law firm of DLA Piper, on behalf of Albuquerque resident Shawna Allers.

This major development concerned the HSD policy of providing a voter registration application to a public assistance client only if the client specifically requests an application. Section 7 requires New Mexico and most other states to offer voter registration to public assistance clients when they apply for benefits, periodically recertify their benefits eligibility, or submit a change of address for receipt of benefits. Along with HSD officials, the New Mexico Secretary of State shares responsibility for ensuring that State agencies comply with the NVRA.

Yesterday’s decision affirmed a December 2010 judgment of the U.S. District Court for the District of New Mexico, holding that Section 7 public assistance agencies must provide a voter registration application to each client engaged in a covered transaction (that is, a benefits application, recertification or change of address), unless the client declines in writing, and that HSD’s policy violated the express language of the statute.

“This important ruling recognizes the specific and expansive voter registration opportunities that Congress required for public assistance clients, which were designed to complement the voter registration programs at state motor vehicle agencies,” said Robert Kengle, co-director of the Lawyers’ Committee’s Voting Rights Project. “The Tenth Circuit’s decision should send a clear message that States need to follow the law, not only in New Mexico and the Tenth Circuit, but throughout the country.”

Prior to the filing of this lawsuit in July 2009, voter registration at public assistance offices in New Mexico had sharply declined from the level achieved shortly after the enactment of the NVRA, despite an increasing number of public assistance clients in the state. In the 2007-2008 reporting period, the number of public assistance clients applying for voter registration had gone down by about 90 percent from the 1995-1996 period and, on average, each public assistance office was registering fewer than 10 clients a month. An investigation conducted prior to the filing of the lawsuit revealed that none of the public assistance offices surveyed was regularly offering voter registration to its clients.

“This ruling makes clear that the goal and purpose of the NVRA, which is to increase the number of eligible citizens to vote, cannot be circumvented by states who seek to play semantics with the law,” says Michael Slater, executive director of Project Vote.

New Mexico state officials had brought the appeal following a consent order which resolved all other issues in the litigation with regard to the provision of voter registration applications at public assistance agencies in the state, but permitted the appeal of this legal question. The consent order sets forth specific voter registration procedures New Mexico must follow at public assistance offices, and requires that the state both train its public assistance employees concerning their voter registration obligations and monitor public assistance offices to ensure compliance with the NVRA.

“This decision states the obvious: A legal requirement to provide voter registration services means that HSD must implement an ‘opt-out’ not ‘opt-in’ policy for providing voter registration materials,” said Lisa Danetz, Senior Counsel in the Democracy Program at Dēmos. “With this premise firmly established, the procedures in the consent order are that much more effective.”

The 2009 lawsuit originally included a claim that New Mexico officials were also violating Section 5 of the NVRA (also known as “motor voter”), which requires that state motor vehicle offices provide clients the opportunity to register to vote simultaneous with applying for, or renewing, a driver’s license or state identification card. That portion of the litigation was resolved by a July 2010 settlement. The Court of Appeals decision affirmed the District Court’s assessment of attorneys’ fees against the Secretary of State arising from that claim.

The unanimous panel decision was written by Chief Judge Briscoe and was joined by Judges Gorsuch and Matheson.  The U.S. Department of Justice filed an amicus brief in support of Plaintiff Allers in the HSD appeal. The case captions are Valdez v. Squier, No. 11-2063 (10th Cir. Feb. 21, 2012) for the HSD appeal, and Valdez v. Duran, No. 11-2064 (10th Cir. Feb. 21, 2012), for the Secretary of State’s appeal. The Tenth Circuit’s territorial jurisdiction includes Oklahoma, Kansas, Colorado, Wyoming, and Utah, in addition to New Mexico.

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