Delgado v Galvin _MA welfare voter registration case_ - Complaint

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					             Case 1:12-cv-10872-DJC Document 1 Filed 05/15/12 Page 1 of 32



                        IN THE UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF MASSACHUSETTS


                                                    )
BETHZAIDA DELGADO,                                  )
                                                    )
NAACP-NEW ENGLAND AREA                              )
CONFERENCE, and                                     )
                                                    )
NEW ENGLAND UNITED FOR JUSTICE,                     )
                                                    )
        Plaintiffs,                                 )
                                                    )
        v.                                          )
                                                    )   CIVIL ACTION NO.
WILLIAM F. GALVIN,                                  )
in his official capacity as Secretary of the        )   _____________________________
Commonwealth of Massachusetts,                      )
                                                    )
JUDYANN BIGBY, M.D.,                                )   COMPLAINT
in her official capacity as Secretary of the        )
Executive Office of Health and Human                )
Services, and                                       )
                                                    )
DANIEL J. CURLEY,                                   )
in his official capacity as Commissioner of the     )
Department of Transitional Assistance,              )
                                                    )
                                                    )
        Defendants.                                 )
                                                    )


        Plaintiffs Bethzaida Delgado, NAACP-New England Area Conference (“NAACP-

NEAC”), and New England United for Justice (“NEU4J”), for their Complaint against

defendants 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 and Human Services (“EOHHS”), and Daniel J. Curley, in his official capacity

as Commissioner of the Department of Transitional Assistance (“DTA”), allege as follows.



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                                         INTRODUCTION

        The right to vote is a fundamental right. Deprivations of that right undermine the

American democratic system of government. Unfortunately, flawed practices and policies,

insufficient oversight and inadequate enforcement in crucial parts of Massachusetts’ voter

registration system have deprived the right to vote to tens of thousands of low income

Massachusetts citizens who receive public assistance.

        For several years, Massachusetts has violated the National Voter Registration Act of

1993 (“NVRA”). The NVRA was enacted, with widespread bipartisan support in Congress, to,

inter alia, make voter registration more widely available and accessible to the poor. 42 U.S.C. §

1973gg(b)(1). Section 7 designates all public assistance offices as voter registration agencies.

Id. § 1973gg-5(a)(2)(A). Under the NVRA, public assistance offices must provide voter

registration services with each application, recertification, renewal, or change of address. Id.

§ 1973gg-5(a)(6)(A).

        Specifically, the NVRA requires that all public assistance offices distribute forms that ask

their clients if they would like to register to vote and, unless the client declines to register to vote

in writing, the NVRA requires that the offices distribute voter registration applications, referred

to in Massachusetts as “affidavits,” assist clients in completing the voter registration

applications, and accept completed applications and deliver them to election authorities. Id.

§ 1973gg-5(a)(6)(B).

        Section 7 seeks to increase the number of registered voters for federal elections and to

ensure that voter registration “will be convenient and readily available [for] the poor . . . who do

not have driver’s licenses and will not come into contact with the other principle [sic] place to




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register under this Act [namely, motor vehicle departments].” Id. §1973gg(b)(1); H.R. Rep. No.

103-66, at 15 (1993) (House-Senate Conference Report).

        “[N]oncompliance with section 7 [of the NVRA] means the disenfranchisement of

millions of low income citizens and a widening of the gap between the registration rates of high-

and low-income individuals.” Hearing on the National Voter Registration Act, Section 7: The

Challenges that Public Assistance Agencies Face, 110th CONG., 2d Sess. 42-796 (2008) (United

States Representative Zoe Lofgren, former Chairwoman of the House Subcommittee on

Elections). In fact, as a direct result of non-compliance with Section 7, thousands of low income

citizens have been disenfranchised in Massachusetts. Massachusetts’ systemic violations of

Section 7 -- caused by flawed practices and policies, insufficient oversight and inadequate

enforcement -- have contributed to an obvious income-based “voter registration gap.” According

to the United States Census Bureau’s Current Population Survey released in November 2010, in

2010, only 58.2% of Massachusetts’ eligible citizens living in a household with a yearly income

of less than $25,000 were registered to vote, as compared to 76.9% of eligible citizens living in a

household with a yearly income of more than $100,000 – a “voter registration gap” of 18.7%.

Based on the same Current Population Survey for the 2008 presidential election year, 86.1% of

Massachusetts’ eligible affluent citizens were registered to vote, that is, approximately 10% more

than in 2010; but the voter registration rate for low income eligible citizens in 2008 was actually

lower than in 2010, 58.1%. These “voter registration gaps” reveal the disenfranchisement of tens

of thousands of eligible low income Massachusetts citizens.

        But for plaintiffs’ substantial investigative efforts and commencement of this action,

Massachusetts’ violations may have remained hidden and unaddressed. Data obtained from

offices of the Massachusetts Department of Transitional Assistance (“DTA”) suggest that, in



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2011, at least 94.2% of their clients were not provided the voter registration services mandated

by Section 7 of the NVRA because they purportedly identified themselves as registered voters.

Given the Census Bureau’s voter registration data, the statistical probability that over 94% of

DTA clients are registered voters is essentially zero. DTA has recorded similarly incredible

percentages of low income voter registrations every year since 2005.

        Moreover, the sad truth is that Massachusetts’ NVRA violations are apparently increasing

over time. For example, according to statistics reported to the federal government by

Massachusetts, Massachusetts public assistance offices submitted 26,984 voter registration

applications in 1999-2000. Federal Election Commission, The Impact of The National Voter

Registration Act of 1993 on the Administration of Elections for Federal Office, 1999-2000 Table

2, 6 (2001). Ten years later, in 2009-2010, again according to statistics reported to the U.S.

Election Assistance Commission by Massachusetts, the number of voter registration applications

submitted by Massachusetts public assistance offices had decreased to 2,007 – a reduction of

92.5%. U.S. Election Assistance Commission, 2010 Election Administration & Voting Survey:

Massachusetts Response (2011) (Obtained through Public Records Request, on file with Ropes &

Gray LLP).

        Clearly, widespread systemic violations of the NVRA have prevented tens of thousands

of eligible low income Massachusetts citizens from exercising their right to vote in federal

elections. Despite these obvious violations, defendants have made little effort to investigate the

violations or to develop and implement practices and policies to bring Massachusetts into

compliance with the NVRA.

        As a direct result of defendants’ violations of Section 7 of the NVRA, eligible citizens

such as plaintiff Bethzaida Delgado have been denied the opportunity to register to vote and have



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thereby been deprived the right to vote. To address defendants’ chronic violations, organizations

such as plaintiffs NEU4J and NAACP-NEAC and their members have expended and will

continue to expend substantial resources to plan and execute voter registration initiatives that

target public assistance clients. But for defendants’ violations, organizations such as plaintiffs

NEU4J and NAACP-NEAC would not have diverted their limited resources to such voter

registration initiatives.

        Plaintiffs bring this action for declaratory and injunctive relief, asking this Court to order

defendants to comply with Section 7 of the NVRA. Because the deadline to register for the 2012

federal election is October 17, 2012, plaintiffs seek preliminary injunctive relief, asking this

Court to order defendants to immediately develop and implement remedial practices and policies

to ensure compliance with the NVRA well in advance of that registration deadline.

        Simply stated, plaintiffs ask this Court to order defendants to meet their responsibilities

under the NVRA and to assist tens of thousands of eligible but unregistered low income

Massachusetts citizens in registering to vote so that they can exercise one of their most

fundamental rights and participate in our democratic system.



                                  JURISDICTION AND VENUE

        (1)      This action is brought pursuant to 42 U.S.C. § 1973gg-9(b).

        (2)      This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.

§ 1331 and 28 U.S.C. § 1343(a).

        (3)      This Court has personal jurisdiction over each defendant because each is a citizen

of the Commonwealth of Massachusetts.




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        (4)      Venue in this district is proper pursuant to 28 U.S.C. § 1391 because a substantial

part of the events giving rise to the claims occurred in this district and the principal place of

business of each defendant is in this district.

        (5)      As described in detail below, an actual and justiciable controversy exists between

plaintiffs and defendants.



                                                  PARTIES

        (6)      Plaintiff Bethzaida Delgado is a Massachusetts citizen who resides at 277 East

Merrimack Street, Lowell, Massachusetts. Ms. Delgado is eligible to register to vote in

Massachusetts. She has not been registered to vote at her current address nor at any other

address in Massachusetts. Ms. Delgado receives Supplemental Nutrition Assistance Program

(“SNAP”) benefits, which are administered by the DTA.

        Ms. Delgado also receives Medicaid, which is implemented in Massachusetts through the

MassHealth program (“MassHealth”). MassHealth is administered by the EOHHS; applications

for MassHealth benefits, as well as assistance related to the receipt of benefits, is available at,

among others, DTA offices. Ms. Delgado first applied for MassHealth benefits from the DTA

office located at 131 Davidson Street, Lowell, Massachusetts. She has subsequently renewed or

recertified her MassHealth benefits through the MassHealth enrollment center located at 367

East Street, Tewksbury, Massachusetts.

        On June 24, 2011, Ms. Delgado visited the DTA office located at 131 Davidson Street,

Lowell, Massachusetts, to recertify her eligibility for SNAP benefits. During that visit, she was

not offered the opportunity to register to vote or to change her voter registration address.

        Ms. Delgado has been receiving SNAP and MassHealth benefits for the past ten years

and has previously received cash assistance. She cannot recall ever being offered the

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opportunity to register to vote during a visit to a DTA office or through any of her interactions

with MassHealth enrollment centers.

        (7)      Plaintiff NAACP-NEAC is an organization under the umbrella of the National

Association for the Advancement of Colored People, with its principal place of business in

Boston, Massachusetts. NAACP-NEAC operates through more than twenty Units – Branches,

College Chapters, and Youth Councils – including at least fifteen Branches located throughout

Massachusetts. It provides services to more than two thousand members, including members

who have applied and/or may apply for, and/or receive and/or may receive, public assistance

benefits in Massachusetts, including SNAP, Transitional Aid to Families with Dependent

Children (“TAFDC”), Emergency Aid to the Elderly, Disabled, and Children (“EAEDC”), and

MassHealth.

        Voter registration and education are core components of NAACP-NEAC’s mission and

are central to the accomplishment of its objectives. Among other things, NAACP-NEAC

Branches encourage voter registration and participation in federal and other elections, especially

among people of color, and disenfranchised and low income citizens, and have expended, and

continue to expend, substantial resources conducting voter registration drives throughout

Massachusetts. NAACP-NEAC’s voter registration efforts target voters in low income

neighborhoods, including registration of persons who apply for and/or receive public assistance

benefits. In 2011, as one of its highest priorities, NAACP-NEAC commenced a campaign in

Massachusetts named “This is My Vote,” with voter registration, voter education, and get-out-

the-vote activities planned throughout 2011 and 2012.

        As a direct result of defendants’ violations of Section 7 of the NVRA, NAACP-NEAC

has sent volunteers to assist people with voter registration and voter education who should have



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been offered those services by defendants. If defendants provided NVRA-mandated voter

registration services, NAACP-NEAC could reallocate its volunteers to other activities, including

issue-based campaigns, youth programs, collaborative community actions with other

organizations, voter protection efforts, and large-scale voter registration drives that broadly

target many persons, including persons that Section 7 of the NVRA is not designed to cover.

        (8)      Plaintiff New England United for Justice (“NEU4J”) is a nonprofit membership-

based community organization with its principal place of business at 196 Adams Street, Boston,

Massachusetts. NEU4J has more than 280 members, including members who have applied for

and/or will apply for, and/or receive and/or will receive public assistance benefits in

Massachusetts, including SNAP, TAFDC, EAEDC, and MassHealth. NEU4J encourages voter

registration and participation in federal, state, and city elections, which are core components of

its mission and central to the accomplishment of its objectives, particularly among citizens of

color and low income citizens. NEU4J has expended, and continues to expend, substantial

resources in conducting voter registration drives throughout Boston. Its current voter registration

efforts target voters in low income neighborhoods, including the registration of persons who

apply for and/or receive public assistance benefits.

        In addition, after completing interviews of individuals visiting DTA offices, which

revealed that numerous DTA clients were not receiving NVRA-mandated voter registration

forms and assistance, NEU4J has decided that it will devote additional resources to register DTA

clients to vote. These efforts divert NEU4J’s limited resources from other activities, including

voter mobilization and get-out-the-vote efforts, door-to-door canvassing, candidate forums,

neighborhood development efforts, community actions with other organizations, leadership

trainings, and voter registration drives in areas to register persons the NVRA is not designed to



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cover. This diversion of resources would not be necessary if defendants complied with the voter

registration assistance requirements mandated by the NVRA.

        (9)      Defendant William F. Galvin is the Secretary of the Commonwealth of

Massachusetts. Mr. Galvin is the chief election official in Massachusetts and is responsible for

conducting and overseeing federal elections. In his official capacity, among other things, Mr.

Galvin promulgates regulations; issues directives and advisories regarding procedures for

conducting federal elections; prescribes voter registration forms and makes them available for

distribution; establishes and maintains statewide qualified voter files; develops and implements

rules, practices and policies to enforce laws governing federal elections; investigates, or causes

to be investigated, compliance with governing election laws; and is responsible for ensuring

compliance with the NVRA. He is the “chief election official” responsible for coordination of

Massachusetts’ responsibilities under the NVRA.

        (10)     Defendant JudyAnn Bigby, M.D., is the Secretary of the Executive Office of

Health and Human Services (“EOHHS”). The EOHHS administers the following public

assistance programs: SNAP, EAEDC, MassHealth, and TAFDC (which receives funding from

the federal Temporary Assistance for Needy Families (“TANF”) block grant program). Any

state office that administers these programs must comply with the requirements of the NVRA.

Pursuant to Massachusetts law, EOHHS is the “single state agency” responsible for the

administration of MassHealth. See M.G.L.A. 118E § 1.

        (11)     Defendant Daniel J. Curley is the Commissioner of the Department of

Transitional Assistance (“DTA”), which Massachusetts has designated as a voter registration

agency pursuant to the NVRA. The DTA, a Department within the EOHHS, administers SNAP,

EAEDC, MassHealth, and TAFDC. In its administration of these programs, DTA must comply



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with the requirements of the NVRA. In addition, on information and belief, pursuant to

Massachusetts law, DTA is the “single state agency” responsible for the administration of SNAP,

EAEDC, and TAFDC. See 106 CMR 701.100.



                                    FACTUAL ALLEGATIONS

                              National Voter Registration Act of 1993

        (12)     The National Voter Registration Act of 1993 (“NVRA”), 42 U.S.C. § 1973gg et

seq., has as its principal purpose “establish[ing] procedures that will increase the number of

eligible citizens who register to vote in elections for Federal office.” Id. § 1973gg(b)(1).

        (13)     In furtherance of that principal purpose, the NVRA mandates, among other things,

that “each state shall designate as voter registration agencies -- (A) all offices in the state that

provide public assistance.” 42 U.S.C. § 1973gg-5(a)(2).

        (14)     At each voter registration agency, Section 7 of the NVRA requires that “the

following services shall be made available:

        (i)      Distribution of mail voter registration application forms . . .

        (ii)     Assistance to applicants in completing voter registration application forms, unless

        the applicant refuses such assistance.

        (iii)    Acceptance of completed voter registration application forms for transmittal to the

        appropriate State election official.”

42 U.S.C. § 1973gg-5(a)(4)(A); id. § 1973gg-5(a)(6). Completed voter registration applications

must be “transmitted to the appropriate State election official not later than 10 days after the date

of acceptance,” id. § 1973gg-5(d)(1), or within 5 days, if accepted “5 days before the last day for

registration to vote in an election,” id. § 1973gg-5(d)(2). These services must be offered by all

public assistance offices “with each application for . . . [public] assistance, and with each

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recertification, renewal, or change of address form relating to . . . [public] assistance.” Id. §

1973gg-5(a)(6).

        (15)     Section 7 of the NVRA also requires all public assistance offices to distribute

with each application for services, and with each recertification or renewal, and with each change

of address form, a voter preference form, sometimes called a “declination form.” The voter

preference form provides specific information to clients regarding the voter registration process

and asks, “[i]f you are not registered to vote where you live now, would you like to apply to

register to vote here today?” The specific information on the voter preference form includes, for

example, an explanation that the decision to register to vote will not affect eligibility for public

assistance or the amount of benefits. Id. § 1973gg-5(a)(6)(B)(ii).

        (16)     The public assistance agency must provide that client with “the same degree of

assistance with regard to the completion of the registration application form as is provided by the

office with regard to the completion of its own forms, unless the applicant refuses such

assistance.” Id. § 1973gg-5(a)(6)(C).

        (17)     The NVRA requires that “[e]ach State shall designate a State officer or employee

as the chief State election official to be responsible for coordination of State responsibilities”

under the NVRA. 42 U.S.C. § 1973gg-8. As previously noted, in Massachusetts, the “chief

State election official” is defendant Galvin, the Secretary of the Commonwealth.

        (18)     The NVRA creates a private right of action for “a person who is aggrieved by a

violation” of the NVRA. 42 U.S.C. § 1973gg-9(b)(1). The NVRA requires that, at least 90 days

prior to bringing an action to enforce the NVRA, an aggrieved person must give written notice to

the “chief State election official” to identify the violation(s) and to provide the State with an

opportunity to cure the violation(s) prior to the commencement of an action.



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                          Massachusetts Voter Registration Regulations

        (19)     Massachusetts has adopted regulations (950 CMR 57) to implement the NVRA.

        (20)     950 CMR 57 states, in part, that it “implements the federal National Voter

Registration Act, 42 U.S.C. 1973gg to 1973gg-10.” 950 CMR 57.01. It also states that one of

the purposes of the regulations is to “increase the number of eligible citizens who register to

vote.” Id.

        (21)     950 CMR 57.05 requires the Commonwealth to provide voter registration services

at designated voter registration agencies. A voter registration agency is defined to include

agencies that administer or provide services under the Food Stamp (i.e., SNAP), Medicaid (i.e.,

MassHealth), EAEDC, and Aid to Families with Dependent Children (i.e., TAFDC) programs.

950 CMR 57.02.

        (22)     950 CMR 57.05 also requires the Commonwealth to facilitate voter registration.

For example, it states that the Secretary of the Commonwealth “shall prepare blank forms for

affidavits of voter registration and shall supply sufficient quantities of such forms to each voter

registration agency.” 950 CMR 57.05(1)(a). Further, the Secretary “shall prepare voter

registration declination forms and shall supply such forms in quantities the state secretary deems

sufficient.” 950 CMR 57.05(1)(b).

        (23)     A voter registration application, or “affidavit,” must be distributed with each

application for service or assistance, and with each recertification, renewal, or change of address

form relating to such service or assistance. 950 CMR 57.05(2)(b). Whether an applicant for

services or assistance declines to register to vote, or chooses to register to vote, a voter

preference form, or “declination form,” must be signed by the applicant and retained by the voter

registration agency. 950 CMR 57.05(2)(c), (d). Further, the agency “shall provide the registrant



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with the same level of assistance in filling out the voter registration [application] as is provided

by the agency in completing its own forms.” 950 CMR 57.05(2)(f).

        (24)     Each voter registration agency must “mail or deliver the original completed

affidavit of voter registration to the board of registrars of voters of the city or town where the

registrant resides within five days after it is completed by the registrant at the agency.” 950

CMR 57.05(3)(a).

   Failure to Offer Voter Registration Opportunities to Public Assistance Agency Clients.

        (25)     Massachusetts must comply with the requirements of the NVRA.

        (26)     Defendant Galvin, as Secretary of the Commonwealth, is the chief election

official responsible for ensuring Massachusetts’ compliance with the NVRA. Among other

things, Mr. Galvin is responsible for ensuring that voter registration agencies, including offices

through which persons apply for, recertify, renew, or change their addresses for public assistance

benefits, including SNAP, TAFDC, EAEDC, and MassHealth, provide the voter registration

services mandated by Section 7 of the NVRA.

        (27)     EOHHS and DTA are state agencies responsible for the administration of public

assistance in Massachusetts, including, but not limited to, the administration of SNAP, TAFDC,

EAEDC, and MassHealth. DTA and EOHHS are voter registration agencies under Section 7 of

the NVRA, as recognized by the implementing Code of Massachusetts Regulations, 950 CMR

57.02(1)(b), because they administer or provide services under the SNAP, MassHealth, EAEDC

and TAFDC programs. Defendant Bigby, as Secretary of EOHHS, and defendant Curley, as

Commissioner of DTA, are State officials responsible for ensuring that voter registration

materials and services mandated by Section 7 of the NVRA are made available through the

public assistance programs offered by EOHHS and DTA, respectively.



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        (28)     Defendants have violated Section 7 of the NVRA by failing to provide persons

who apply, recertify, renew, or change their addresses in connection with public assistance

benefits with a voter registration application, a voter preference form, and assistance in

completing a voter registration application. These failures also violate Massachusetts regulations

implementing the NVRA. 950 CMR 57.

        (29)     United States Census Bureau data strongly suggests that Massachusetts public

assistance offices are not performing their voter registration obligations under the NVRA.

According to the November 2008 United States Census Bureau Current Population Survey, in

2008, only 58.1% of low income eligible Massachusetts citizens were registered to vote

compared to 86.1% affluent Massachusetts eligible citizens, an income-based “voter registration

gap” of 18%. In 2010, according to the November 2010 edition of the same Survey, 58.2% of

low income eligible Massachusetts citizens were registered to vote compared to 76.9% affluent

Massachusetts eligible citizens, an income-based “voter registration gap” of over 18%.

        (30)     Available reports of NVRA public assistance office voter registration data do not

indicate that Massachusetts public assistance offices comply with NVRA requirements.

Massachusetts is required, pursuant to federal regulations, see, e.g., 11 C.F.R. § 9428.7, to report

voter registration data, including numbers of voter registration applications submitted by voter

registration agencies, to the U.S. Election Assistance Commission (“EAC”). Massachusetts

submitted certain information to the EAC in 2010. However, information regarding voter

registration applications, including those from public assistance offices, was submitted in an

unusable format and was therefore not included in the EAC’s annual NVRA reports. U.S.

Election Assistance Commission, The Impact of The National Voter Registration Act of 1993 on

the Administration of Elections for Federal Office, 2009-2010 39 (2011). More specifically,



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Massachusetts did not aggregate the number of voter registration applications received from

public assistance offices, making it prohibitively burdensome for the EAC to analyze the

information submitted by Massachusetts. U.S. Election Assistance Commission, 2010 Election

Administration & Voting Survey: Massachusetts Response (2011) (Obtained through Public

Records Request, on file with Ropes & Gray LLP). As a result, the EAC’s 2010 annual report to

Congress did not include information regarding Massachusetts’ compliance with Section 7. U.S.

Election Assistance Commission, The Impact of The National Voter Registration Act of 1993 on

the Administration of Elections for Federal Office, 2009-2010 (2011).

        (31)     Moreover, data produced by the DTA itself, in response to a Public Records Act

Request by plaintiffs’ counsel, confirm that public assistance offices are not providing voter

registration services required by the NVRA. A comparison of the number of persons registering

to vote through DTA offices with the number of persons receiving SNAP benefits demonstrates

that those offices are not complying with the requirements of the NVRA. As indicated in the

chart below, for the past seven years, significantly fewer than 1% of the DTA’s SNAP clients

have submitted voter registration applications to DTA offices.




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                             Voter 
                         Registration                         Ratio of 
                            (“VR”)            SNAP             VR to 
                         Applications      Applications        SNAP 
                Year      Submitted         Submitted         Apps (%) 
                 2005         748            214,855           0.34% 

                 2006         871           157, 646           0.55% 

                 2007         901           168, 316           0.55% 

                 2008        1252            219,592           0.57% 

                 2009         764            269,022           0.28% 

                 2010         516            239,795           0.22% 

                 2011         570            240,149           0.24% 



        (32)     The DTA’s non-compliance with the NVRA is also shown by its own

computerized client survey records. For the past seven years (2005-2011), DTA has utilized a

computerized process, known as BEACON, to process benefits-related transactions. As

designed and intended, under BEACON, DTA personnel cannot complete a client’s application,

recertification or renewal, or change of address, without inputting the answer to the question, is

“everyone 18 or older in [the] Assistance Unit who is a U.S. citizen and a Massachusetts resident

currently registered to vote at your current address,”1 and, if the answer to that question is that an

eligible resident within the Assistance Unit is not registered to vote, without also inputting the

answer to whether any such person wishes to register to vote.




1
  Upon information and belief, DTA recently reworded this question to ask whether there is
“anyone 18 or older who is currently NOT registered to vote at your current address.” Upon
information and belief, DTA has made no other changes to the BEACON computerized process.

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        There is a “hard stop” step in the computer program which must be completed before the

computerized process will proceed. For each of the past seven years, according to data produced

in response to the Public Records Act Request, BEACON has reported that over 94% of all DTA

clients have answered that everyone 18 or older in their home is registered to vote. In other

words, notwithstanding the fact that, according to the United States Census Bureau 2010 survey,

only 58.2% of eligible Massachusetts low income citizens were registered to vote, the BEACON

DTA data suggest that over 94% of DTA clients are registered voters. Given the Census Bureau

data, the statistical probability that over 94% of DTA clients were registered voters is essentially

zero.

        (33)     Upon information and belief, it is far more likely that DTA personnel have

proceeded past the “hard stop” step in the BEACON computer program by inputting an answer

in response to the voter registration question without actually asking the client the voter

registration question; by answering that a client is already registered when he or she fails to

answer the question; and/or by failing to explain the voter registration question when “assisting”

a client in completing benefits forms.

        (34)     The same DTA BEACON data also indicate that DTA offices are not distributing

voter registration applications or voter preference forms to all clients, as required by the NVRA.

Public assistance agencies are required to distribute a voter preference form with each

application for service or assistance, and with each recertification, renewal, or change of address

form relating to such service or assistance. 42 U.S.C. § 1973gg-5(a)(6)(A). Public assistance

agencies are further required to distribute a voter registration application “unless the applicant, in

writing, declines to register to vote.” Id. at § 1973gg-5(a)(6). DTA’s data show that when the

first BEACON question response is inputted as “everyone in the client’s home is already



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registered to vote,” not only is no voter registration application distributed, but also no voter

preference form is completed. In other words, based on the DTA data produced, DTA personnel

have failed to distribute voter registration applications to 94% of its clients even though no voter

preference form containing a written declination was completed.

        (35)        DTA is further required by the NVRA, as implemented by 950 CMR 57.05(2), to

preserve voter preference forms. Specifically, “[i]f the applicant declines to register to vote, the

declination form shall be signed by the applicant, and retained by the registration agency.” 950

CMR 57.05(2)(c). The suspect nature of the DTA’s BEACON system and DTA’s apparent non-

compliance with NVRA requirements are further evidenced by the revelation that, according to

DTA 2011 records, not a single DTA client who had responded that he or she was already

registered to vote completed a voter preference form that was retained by a DTA office.

        (36)        Between May and December 2011, NEU4J visited DTA offices in Boston,

Holyoke, Lawrence, Lowell, Springfield, Worcester, Pittsfield, and Fitchburg, and spoke to

office personnel, as well as individuals leaving those offices who had visited to apply for,

recertify, renew, or change their address in connection with SNAP, EAEDC, TAFDC, or

MassHealth benefits. Information compiled during these visits confirm widespread violations of

Section 7 of the NVRA. Specific violations at DTA offices include:

              (i)      Failure to offer voter registration opportunities. Of the 174 public assistance

                       clients interviewed, 129, or 73%, reported that they received no offer of voter

                       registration in any manner. They did not see any voter registration question

                       on any DTA forms; they were not asked by any DTA personnel about voter

                       registration; they were not offered a voter registration application; and they

                       were given no assistance whatsoever in registering to vote.



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              (ii)    Failure to distribute voter registration applications. As previously noted, the

                      NVRA requires public assistance offices to distribute voter registration

                      applications to each client unless he or she completes a written declination of

                      his or her right to register to vote. 42 U.S.C. § 1973gg-5(a)(6)(A). Similarly,

                      pursuant to Massachusetts regulation, 950 CMR 57.05(2)(c), “[i]f the

                      applicant declines to register to vote, the declination form shall be signed by

                      the applicant, and retained by the registration agency.” By definition, a failure

                      to provide a response to the written voter preference form is not a statement

                      “in writing” that satisfies an agency’s obligation to provide a voter registration

                      application. Of the 146 interviewed clients who did not provide a response to

                      the NVRA-mandated voter registration question – either because they did not

                      see the question or because they left it blank – 140 (approximately 95%) were

                      not provided with a voter registration application.

              (iii)   Failure to keep voter registration applications and materials in supply and

                      generally available. The failure to stock voter registration materials also

                      suggests broader non-compliance with Section 7 of the NVRA and 950 CMR

                      57.05(1)(a) and (b). For example, although the Elections Director of the

                      Secretary of the Commonwealth has asserted (in a letter to plaintiffs’ counsel

                      dated March 6, 2012) that the Secretary of the Commonwealth has always

                      made posters regarding violations of election laws/penalties and “register to

                      vote here” signs available to all public assistance offices, no signs or posters

                      were observed at any of the DTA offices visited. Similarly, although the

                      Secretary has purportedly always made voter registration applications and



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                    mail-in voter registration applications available to all public assistance offices

                    in multiple languages, in only one DTA office of the nine visited were voter

                    registration applications – in any language – observed at the office intake

                    counter.

        (37)     The NVRA (42 U.S.C. § 1973gg-5(a)(6)) requires that public assistance offices

designated as voter registration agencies “distribute with each application for such service or

assistance, and with each recertification, renewal, or change of address form,” a voter

registration application and a voter preference form. Significantly, “Virtual Gateway,” an online

portal operated by the EOHHS that provides information about a broad range of social services

for low income persons, including food stamps and Medicaid, offers no voter registration

information. Because a Massachusetts citizen can apply for public assistance through “Virtual

Gateway,” it triggers the requirements of the NVRA. And, upon information and belief, while

this online registration system requests an applicant’s personal information (including age and

citizenship status), it does not ask about voter eligibility or registration status. Voter registration

is neither available through “Virtual Gateway” menu options, nor is it listed among its index of

available services. Defendants’ failure to provide voter registration applications and voter

preference forms through “Virtual Gateway” is symptomatic of Massachusetts’ systemic non-

compliance with the NVRA.

        (38)     Defendants’ widespread violations of the NVRA and disregard for voter

registration rights of public assistance clients is remarkable given the Massachusetts

Constitution’s guarantee of the right to vote to every citizen of the Commonwealth of

Massachusetts. Mass. Const. pt. 1, art. IX. The Massachusetts Supreme Judicial Court has long

recognized that being left off voter registration rolls deprives one of the right to vote and is a



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violation of the Massachusetts Constitution. Santana v. Registrars of Voters of Worcester, 384

Mass. 487, 492 (1981); Lincoln v. Hapgood, 11 Mass. 350, 355 (1814). Defendants’ failure to

comply with the requirements of the NVRA prevents tens of thousands of low income

Massachusetts citizens from registering to vote, and so prevents them from exercising their right

to vote.

        (39)     On December 8, 2011, a letter was sent to defendant Galvin, on behalf of “New

England United for Justice, persons eligible to register to vote that it represents, and others

similarly situated,” to “provide written notice of the violation [of Section 7 of the NVRA] to the

chief election official of the State,” as required by the NVRA. 42 U.S.C. § 1973gg-9. The

notice stated that, unless Massachusetts implemented a plan to remedy the violations of the

NVRA within 90 days, NEU4J would commence litigation. (A copy of the December 8, 2011

notice letter is attached hereto as Exhibit A.) Defendants Bigby and Curley were sent a copy of

the notice on the same day. The violations of the NVRA described in the notice letter have not

been remedied.

        (40)     On February 9, 2012, representatives of plaintiffs met with representatives from,

among others, the offices of the Secretary of the Commonwealth, EOHHS, and DTA to discuss

Massachusetts’ NVRA violations. At the conclusion of that meeting, all attendees agreed to

reconvene for additional discussions two weeks later, on February 22, 2012. On February 17,

2012, however, defendants’ representatives unilaterally cancelled the second meeting and

refused to conduct any further discussions before the 90-day deadline, opting instead to provide a

written response to the December 8, 2011 notice letter.

        (41)     On March 6, 2012, the Elections Director of the Secretary of the Commonwealth

sent a response letter to plaintiffs’ representatives. That letter describes a single change in policy



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by the Secretary. Previously, public assistance offices were directed not to provide a voter

registration application to any client who left the voter registration question on the voter

preference form blank, a clear violation of NVRA requirements. The Elections Director’s letter

states that, going forward, public assistance offices would be directed to provide a voter

registration application to any client who does not provide a written declination of the

opportunity to register to vote – as has always been required by the NVRA. While this change in

policy, reportedly to be accompanied by planned updates to the “Agency Voter Registration

Workbook” and the “Agency Script,” is clearly necessary to comply with the NVRA, the March

6, 2012 letter is silent regarding how the policy change would be implemented or enforced.

        The Elections Director’s letter states that the policy change was communicated to public

assistance agencies in March of 2012. However, such a communication, standing alone, does

nothing to ensure that the policy change is implemented by agency personnel. Given the

historical policies and practices of these agencies to provide a voter registration application if

and only if a client answered the voter registration question affirmatively – that is, specifically

stating in writing on the voter preference form that he or she would like to register to vote – the

Secretary’s change in policy – unaccompanied by any implementation or enforcement

procedures – does not remedy Massachusetts’ violations of Section 7 of the NVRA.

        (42)     The March 6, 2012 letter fails to mention any other change in policy or procedure

to ensure that voter registration applications and materials would be distributed and displayed; or

to ensure that voter registration services would be provided to public assistance agency clients.

Throughout her letter, the Elections Director simply summarizes requirements of the NVRA,

without offering any evidence that the voter registration agencies have adopted practices and

policies that satisfy those requirements. By way of example only, the Elections Director writes



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that “[p]ursuant to the NVRA, as well as state law and regulations promulgated by the Secretary

of the Commonwealth . . . the declination form must be distributed with each application for

service or assistance, recertification, renewal, or change of address.” That is indeed a correct

statement of federal and state law. However, there is no evidence that, for example, supervision

and oversight of compliance with this legal requirement has been initiated, or that enforcement

procedures have been implemented. Similarly, the Elections Director writes that “[t]he 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.” This is

essentially a quotation of 950 CMR § 57.05(2)(e). However, the letter provides no information

regarding whether this legal requirement has been followed; overseen through regular

supervision; or enforced through compliance procedures. Such empty recitations of law appear

throughout the response letter.

        (43)     In addition, many of the practices described in the March 6, 2012 letter have been

required throughout the many years of Massachusetts’ violations of Section 7 of the NVRA.

While certain of these practices may be necessary to ensure compliance with the requirements of

the NVRA, they have proven to be woefully inadequate without additional policies, practices and

procedures. For example, the Elections Director notes that, in terms of staffing, Massachusetts

has “maintained a NVRA coordinator in the Elections Division” since the NVRA’s enactment in

1993. The NVRA coordinator has purportedly “[c]onsistently . . . met with agency contacts to

provide information and training on the NVRA and to address any issues that arise.” In addition,

according to the Elections Director, the Secretary’s office “has always made itself available to

conduct trainings for any agency.” While laudable, these practices alone have obviously not

prevented Massachusetts’ systemic violations of the NVRA. There is no reason to believe that



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they will be effective in the future. For example, there is no commitment or directive that there

will be regular meetings with agency officials; that such meetings will focus on affirmative steps

to achieve compliance with the NVRA; or that procedures will be developed and implemented to

oversee and enforce compliance with the NVRA. Similarly, although the Secretary’s Office

claims to be preparing a PowerPoint training module that will be made available to all public

assistance agencies, there is no explanation regarding what NVRA content would be covered; no

explanation of when or how the module would be made available or distributed to agencies; and

no explanation of how the module would be incorporated into the agencies’ regular training.

        (44)     With respect to DTA in particular, the March 6, 2012 response letter again cites to

existing and demonstrably inadequate practices. For example, the Elections Director notes that

DTA “has had and continues to have a designated NVRA Coordinator on staff.” While this is a

necessary requirement to ensure compliance with the NVRA, the letter provides no information

regarding how the Coordinator oversees NVRA compliance or addresses evidence of non-

compliance.

        DTA’s BEACON computerized system is yet another example of an obviously

inadequate part of a compliance system. The March 6, 2012 letter notes that BEACON “requires

that all the appropriate voter registration questions be asked for its benefit program

applicants/participants,” and that the computer program includes a “hard stop” that prevents a

DTA client from completing a benefits application without first answering the NVRA-required

voter registration questions. But, as previously noted, the incredible data reported by DTA

indicate that DTA personnel are more than likely bypassing this “hard stop” by inputting

“answers” without actually asking the clients the question. If the voter registration questions are

not asked and voter preference forms are not distributed, any change in policy regarding voter



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preference form blanks is irrelevant. The Executive Director notes that the BEACON system

can identify DTA public assistance offices with low voter registration rates, but goes no further.

Without additional training, supervision, oversight and enforcement procedures to ensure that

DTA personnel follow the updated BEACON Users’ Guide and BEACON Help Instructions, the

BEACON’s “hard-stop” step and data do nothing to ensure that DTA personnel will offer and

provide NVRA-mandated services.

        Planned DTA changes, although desirable, are inadequate unless implemented and

enforced. For example, the Executive Director’s March 6, 2012 letter states that DTA “will . . .

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

forms are available and posters posted,” but offers no details, for example, on when the manager

would be selected or how the manager will enforce compliance with NVRA requirements. It

similarly notes that DTA “is increasing its monitoring of NVRA activities during this election

year and will work to address any issues that are identified in 2012 and subsequent years,” which

suggests that no additional changes are contemplated until after the 2012 federal elections.

        (45)     Furthermore, even if defendants were now to adopt and fully implement the

practices and policies described in the March 6, 2012 letter, much more is needed to remedy

Massachusetts’ woeful history of violations. For several years, defendants have either

disregarded or ignored the precipitous decline in voter registrations reported by public assistance

offices. Over the years, Massachusetts’ violations of Section 7 of the NVRA have directly

caused tens of thousands of eligible low income citizens to lose their right to register to vote,

and, as a direct result, they have been disenfranchised. To remedy these violations and to

provide eligible low income Massachusetts citizens opportunities to exercise their right to




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register to vote in time for the fast-approaching 2012 federal election, preliminary injunctive

relief is needed.

             Plaintiff Bethzaida Delgado Is Denied the Opportunity to Register to Vote.

        (46)      Plaintiff Bethzaida Delgado is 35 years old and has lived in Massachusetts for

over 12 years. Ms. Delgado is a United States citizen. She satisfies all qualifications to register

to vote in Massachusetts.

        (47)      Ms. Delgado is not registered to vote at her current address, and would like to

register to vote at her current address.

        (48)      Ms. Delgado has received SNAP and MassHealth benefits since approximately

2002 and received cash assistance in 2006 and 2007 following an automobile accident. In

connection with her application and receipt of public assistance, she has visited the DTA office

at 131 Davidson Street, Lowell, Massachusetts, many times to recertify or to renew her benefits.

She first applied for MassHealth benefits at the Lowell DTA office. Ms. Delgado has

subsequently recertified or renewed her MassHealth benefits through the MassHealth enrollment

center located at 367 East Street, Tewksbury, Massachusetts.

        (49)      Ms. Delgado visited the DTA office at 131 Davidson Street, in Lowell,

Massachusetts, on June 24, 2011, to recertify her SNAP benefits. She was not offered the

opportunity to register to vote at any time during her visit; nor was she offered a voter

registration application. Ms. Delgado will not visit the office again until she is required to do so

by DTA.

        (50)      Despite her numerous interactions with DTA offices and MassHealth enrollment

centers over the past 10 years, including her most recent visit to the Lowell DTA office, Ms.

Delgado does not recall ever being offered the opportunity to register to vote or being informed



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that she could obtain voter registration applications and register to vote through DTA offices or

MassHealth enrollment centers.

        (51)     Had Ms. Delgado been advised that she could register to vote, or been offered

opportunities to register to vote through a DTA office or MassHealth enrollment center, Ms.

Delgado would have done so and she would have been able to vote.

               NAACP-New England Area Conference Voter Registration Efforts.

        (52)     NAACP-NEAC seeks to achieve equality of rights among all Massachusetts

residents. It especially encourages participation in federal and state elections by traditionally

underrepresented groups. Massachusetts’ continuing widespread violations of Section 7 of the

NVRA have frustrated NAACP-NEAC’s efforts, as many low income and citizens of color have

been deprived of opportunities to register to vote at DTA offices. But for defendants’ violations

of the NVRA, NAACP-NEAC volunteers and members would not have expended as much of

their limited resources assisting these Massachusetts citizens with voter registration.

        (53)     NAACP-NEAC Branches organize and conduct numerous voter registration

drives throughout Massachusetts. They devote substantial resources to voter registration drives

every year. In promoting these drives in communities, NAACP-NEAC organizers target, among

others, families who live in low income housing. If public assistance offices throughout

Massachusetts were complying with the requirements of the NVRA, NAACP-NEAC would

expend fewer resources on voter registration drives in communities where DTA clients should be

offered voter registration opportunities at DTA offices. But for defendants’ violations of Section

7 of the NVRA, NAACP-NEAC would be able to allocate substantial resources to other

activities central to its mission. This diversion of NAACP-NEAC’s limited resources will

continue unless and until defendants’ violations are remedied.



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                   New England United for Justice Voter Registration Efforts.

        (54)     NEU4J supports the civil rights efforts of low income Massachusetts residents,

especially within those communities where its members reside, with a specific focus on the

communities in Dorchester, Roxbury, and Mattapan. NEU4J targets low income residential

areas where voter turnout and participation are historically low, and educates and empowers

residents by assisting them in registering to vote and by encouraging them to participate in

federal and state elections. NEU4J efforts include voter outreach, such as door-to-door

canvassing and telephone drives, which depend on volunteer participation. NEU4J has also

partnered with other Massachusetts organizations, such as the NAACP-NEAC and MassVote, in

large-scale outreach programs. As a direct result of defendants’ violations of Section 7 of the

NVRA, NEU4J and its members have expended and, unless and until defendants’ violations of

the NVRA are remedied, will continue to expend substantial resources to assist public assistance

applicants and recipients to register to vote. By way of example only, upon learning from clients

visiting DTA offices that they were not being offered NVRA-mandated voter registration

services, NEU4J began developing plans to register voters visiting those offices. These plans

diverted NEU4J resources that would otherwise be expended on different voter education and

voter registration activities. The diversions of NEU4J and its members’ resources will continue

unless and until defendants’ violations of Section 7 of the NVRA are remedied.

        (55)     NEU4J is also actively involved in many community improvement initiatives

targeting local, state, and federal issues facing low income families, including paid sick leave,

Social Security and Medicaid benefits, tax reform and improving local city, state, and federal

budget deficit efforts. As a direct result of defendants’ NVRA violations, NEU4J has diverted,

and will continue to divert, its limited resources away from these other initiatives.



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                                      CLAIMS FOR RELIEF

               Violation of Section 7 of the National Voter Registration Act of 1993

        (56)     Plaintiffs incorporate by reference the allegations contained in paragraphs 1

through 55 as if fully set forth herein.

        (57)     As a consequence of their past and continuing failures to provide voter

registration materials and services required by Section 7, defendants have violated and continue

to violate the NVRA.

        (58)     Plaintiffs are aggrieved by defendants’ past and continuing violations of the

NVRA, and have no adequate remedy at law. Declaratory and injunctive relief are required to

remedy defendants’ past and continuing violations of the NVRA and to ensure defendants’ future

compliance with the NVRA.



                                     PRAYERS FOR RELIEF

        WHEREFORE, plaintiffs respectfully request that this Court enter judgment in their

favor and enter an order:

        (i)      Declaring, pursuant to 28 U.S.C. § 2201 and 42 U.S.C. § 1973gg-9(b)(2), that

defendants have violated Section 7 of the NVRA, 42 U.S.C. § 1973gg-5, by failing to provide

the NVRA-required voter registration materials and services through public assistance offices,

including EOHHS and DTA;

        (ii)     Preliminarily and permanently enjoining defendants, their officers, agents

servants, employees and successors in office, and all persons in active concert or participation

with them, from failing to develop, implement and enforce practices and policies to ensure

compliance with Section 7 of the NVRA, 42 U.S.C. § 1973gg-5;




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        (iii)    Directing defendants, under a court-approved plan with appropriate mandatory

reporting and monitoring requirements, to take all actions necessary to remedy the past and

continuing violations of Section 7 of the NVRA, including, without limitation, ensuring that all

persons affected by defendants’ violations of Section 7 of the NVRA are provided opportunities

to register to vote or to change their voter registration addresses to enable them to vote in the

2012 federal election;

        (iv)     Directing defendants, under a court-approved plan with appropriate mandatory

reporting and monitoring requirements, to take all actions necessary to ensure future compliance

with the requirements of Section 7 of the NVRA, 42 U.S.C. § 1973gg-5, including, without

limitation, practices and policies for distribution of voter registration applications and voter

preference forms; training and monitoring public assistance agency personnel to ensure that all

public assistance offices are distributing a voter registration application form to each person who

applies for public assistance benefits, and to each person who recertifies, renews, and/or changes

an address for benefits; inquiring of all such persons, in writing, whether they want to register to

vote or change their voter registration addresses, and providing to them the NVRA-required

information concerning the voter registration process; assisting such persons in completing voter

registration applications to the same level of assistance that is provided with other public

assistance forms; accepting completed voter registration applications, and timely transmitting

completed registration forms to appropriate election authorities; and retaining voter registration

declination forms;

        (v)      Awarding plaintiffs the costs and disbursements incurred in connection with this

action, including, without limitation, their reasonable attorneys’ fees, expenses, and costs,

pursuant to 42 U.S.C. § 1973gg-9(c);



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        (vi)     Retaining jurisdiction over this action to ensure that defendants are complying

with any order(s) issued by this Court and with their obligations under the NVRA; and

        (vii)    Awarding such additional relief as to this Court seems just and proper.


Dated: May 15, 2012                            BETHZAIDA DELGADO, NAACP-NEW
                                               ENGLAND AREA CONFERENCE and
                                               NEW ENGLAND UNITED FOR JUSTICE

                                               By their attorneys,


                                               /s/ John Kenneth Felter__________
                                               John Kenneth Felter (BBO#162540)
                                               ken.felter@ropesgray.com
                                               Ming M. Zhu (BBO# 676863)
                                               ming.zhu@ropesgray.com
                                               ROPES & GRAY LLP
                                               Prudential Tower
                                               800 Boylston Street
                                               Boston, Massachusetts 02199-3600
                                               Telephone: 617-951-7000
                                               Fax: 617-951-7050

                                               Lisa Danetz (BBO #645998)
                                               Dēmos
                                               358 Chestnut Hill Avenue, Suite 303
                                               Brighton, Massachusetts 02135
                                               (617) 232-5885
                                               ldanetz@demos.org

                                               Adam Lioz (pro hac vice pending)
                                               Dēmos
                                               1710 Rhode Island Avenue
                                               Washington, D.C. 20036
                                               (202) 559-1543
                                               alioz@demos.org




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                                         Bob Kengle (pro hac vice pending)
                                         bkengle@lawyerscommittee.org
                                         Alejandro Reyes (pro hac vice pending)
                                         areyes@lawyerscommittee.org
                                         Lawyers' Committee for Civil Rights
                                         Under Law
                                         1401 New York Avenue, N.W., Suite 400
                                         Washington, D.C. 20005
                                         (202) 662-8321

                                         Sarah Brannon (pro hac vice pending)
                                         sbrannon@projectvote.org
                                         Sabrina Khan (pro hac vice pending)
                                         skhan@projectvote.org
                                         Project Vote
                                         1350 Eye Street, NW, Suite 1250
                                         Washington, DC 20005
                                         (202) 546-4173

                                         Rahsaan Hall (BBO #645369)
                                         Lawyers’ Committee for Civil Rights
                                         and Economic Justice
                                         294 Washington St., Ste #443
                                         Boston, MA 02108
                                         (617)988-0608
                                         rhall@lawyerscom.org




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                                                     December 8, 2011



Via UPS and e-mail

Mr. William F. Galvin
Secretary of the Commonwealth
Citizen Information Service
One Ashburton Place, Room 1611
Boston, MA 02108-1512
cis@sec.state.ma.us

        Re:     Compliance with Section 7 of the National Voter Registration Act

Dear Mr. Galvin,

         We write on behalf of New England United for Justice, persons eligible to register to vote
that it represents, and others similarly situated to notify you that the Commonwealth of
Massachusetts is not in compliance with Section 7 of the National Voter Registration Act of
1993 (“NVRA”), 42 U.S.C. § 1973gg-5, which requires States, including Massachusetts, to
provide the opportunity to register to vote with every application for public assistance and every
public assistance recertification, renewal, and change of address. We urge you, as the
Commonwealth’s chief election official, to take immediate steps, in conjunction with the
Executive Office of Health and Human Services and the Departments of Transitional Assistance
and Public Health to bring the Commonwealth into compliance with Section 7.

         The NVRA requires Massachusetts to “designate as voter registration agencies . . . all
offices in the State that provide public assistance.” See 42 U.S.C. § 1973gg-5(a)(2)(A). Each
public assistance office must, at a minimum, (i) distribute voter registration application forms;
(ii) assist applicants in completing the voter registration forms; and (iii) accept completed voter
registration application forms and forward them to the appropriate election official. See 42
U.S.C. § 1973gg-5(a)(4)(A). Moreover, each office must (i) distribute a voter registration
application form with each application for public assistance and with each recertification,
renewal or change of address form; (ii) inquire of the applicant, in writing, whether he or she
would like to register to vote or change his or her voter registration address; (iii) inform the
applicant, in writing, that the decision to register or decline to register to vote will not affect the
amount of public assistance provided by the agency; and (iv) provide assistance in completing
the voter registration forms to the same degree the agency provides assistance in completing its
own forms. See 42 U.S.C. § 1973gg-5(a)(6).
           Case 1:12-cv-10872-DJC Document 1-1 Filed 05/15/12 Page 2 of 4
 
 

        Our investigation demonstrates that Massachusetts is systematically failing to provide the
voter registration services mandated by the NVRA at its public assistance offices. From data that
Massachusetts has submitted to the United States Election Assistance Commission and that the
undersigned have received through public records requests, we have determined that the number
of voter registration applications submitted at Massachusetts public assistance offices has
decreased precipitously in the last decade – from 26,984 at the peak in 1999-2000 to 2,007 in
2009-2010, a reduction of 92.5%. Indeed, this low level of voter registration activity at public
assistance offices is reflected in the low voter registration rates of low-income citizens in
Massachusetts. In 2010, only 58.2% of the Commonwealth’s low-income citizens were
registered to vote compared to 76.9% of affluent citizens – a voter registration gap of 18.7
percentage points. Indeed, in the historic 2008 presidential election and contrary to the norm for
a presidential election year, the Commonwealth’s low-income voter registration rate was slightly
lower, at 58.1%, compared to 86.1% of affluent citizens, a voter registration gap of 28
percentage points.

        Our review indicates that Massachusetts’s noncompliance with Section 7 is the result, in
part, of its implementation of a voter registration policy that violates Section 7. The NVRA
requires that public assistance offices presumptively distribute voter registration applications to
all public assistance applicants and clients, unless the individual applicant or client affirmatively
opts out of voter registration by declining “in writing” to register to vote. 42 U.S.C. § 1973gg-
5(a)(6)(A). Nevertheless, in defining those times at which voter registration applications must be
distributed, the Commonwealth’s policy – as reflected in both the Voter Registration Workbook
for Agencies at pages 6-7 and WIC’s Motor Voter Program Administrative Manual at page 8 –
requires distribution to those applying, recertifying, renewing, or changing an address with
respect to the receipt of benefits only when the individual checks “yes” in response to the
question, “If you are not already registered to vote at your current address, would you like to
register to vote?” This violates the NVRA. Valdez v. Herrera, No. 09-668, Memorandum
Opinion and Order, at 10-11 (D. N.M. Dec. 21, 2010) (“Section 7 does not make the provision
of a voter registration application contingent upon an affirmative request, either written or
verbal, from a client. . . . A blank response on the declination provision . . . cannot be a
statement ‘in writing’ for purposes of subparagraph (A) [the voter registration distribution
requirement].”); see also U.S. Dep’t of Justice, “Voter Registration Requirements of Sections 5,
6, 7, and 8 of the NVRA” (question 19), available at http://www.justice.gov/crt/about/vot/
nvra/nvra_faq.php (last viewed on November 22, 2011).

        Observations in the field confirm that front line staff at DTA offices are failing to
regularly provide the voter registration services required by the NVRA to public assistance
clients. In visits to 8 local DTA offices, which occurred between May and August 2011, a
significant percentage of public assistance applicants and clients interviewed who should have
received an offer of voter registration services, i.e. were at the office to apply, recertify, or
change an address with respect to the receipt of benefits, were not provided any meaningful offer
of voter registration:

       •    69% of interviewees (79 out of 115) did not see any voter registration question within
            DTA forms, were not asked by any DTA personnel about voter registration, and were
            not given a voter registration application.
           Case 1:12-cv-10872-DJC Document 1-1 Filed 05/15/12 Page 3 of 4
 
 


       •    Fewer than 14% of all interviewees were provided a voter registration application.

       •    Of 92 interviewees who did not provide any response to a voter registration question
            – either because they did not see any question or saw a question and left it
            unanswered – only 3 were orally asked about voter registration and only 6 were
            provided with a voter registration application.

Indeed, there was nothing in the lobbies of any of the DTA offices that might advise clients of
the availability of voter registration – no signs, no posters, no stack of voter registration
applications on the intake counters. In several offices, DTA personnel could not even provide a
voter registration application when requested to do so.

        Observations at WIC Clinics in five cities, conducted during the same time period,
yielded similar results. Among the WIC clients interviewed who should have received an offer
of voter registration services, i.e. were at the office to apply, recertify, or change their address
with respect to the receipt of WIC, only one person reported seeing any form that included a
question about voter registration. Not one of any of the remaining individuals either saw a
written voter registration question or was asked orally about voter registration. Indeed, only one
individual among all those who were interviewed received a voter registration application. And,
like the DTA offices, there was nothing in the lobbies of all but one DTA office that might
advise clients of the availability of voter registration.

        These problems should not have occurred. The Secretary of the Commonwealth, the
Secretary of the Executive Office of Health and Human Services, the Commissioner of the
Department of Transitional Assistance, and the Commissioner of the Department of Public
Health are responsible to ensure that local offices are implementing the law and thus are
responsible for effective supervision of local offices to ensure compliance. See Harkless v.
Brunner, 545 F.3d 445, 451 (6th Cir. 2008) (chief election official is “responsible for
implementing the state's function”); id. at 455 (head of “single state agency” responsible for
administering public assistance programs has responsibility to provide statewide voter
registration services). Massachusetts must make sure the NVRA actually is implemented by
making prompt changes so that all of its citizens, including the hundreds of thousands of its
citizens who receive public assistance, are able to participate in elections. In short,
Massachusetts must change its facially noncompliant policy and institute procedures to ensure
that frontline workers perform their federally mandated responsibility to provide voter
registration services.

         This 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. Please advise us promptly of the steps you intend to take to remedy Massachusetts’
violations of Section 7 of the NVRA. We are prepared to meet with you and other state officials,
at your earliest convenience, to assist in your development of a comprehensive plan for
compliance. In the absence of such a plan, we will have no alternative but to initiate litigation at
the conclusion of the statutory 90-day waiting period.
         Case 1:12-cv-10872-DJC Document 1-1 Filed 05/15/12 Page 4 of 4
 
 

Sincerely,

___Lisa J. Danetz________                      ___Rahsaan Hall___________________
Lisa J. Danetz                                 Rahsaan Hall
Demos                                          Lawyers’ Committee for Civil Rights
358 Chestnut Hill Ave.                            Under Law of the Boston Bar Association
Suite 303                                      294 Washington Street, Suite 443
Brighton, MA 02135                             Boston, Massachusetts 02108
(617) 232-5885                                 (617) 482-1145

___Nicole Zeitler____________
Nicole Zeitler
Project Vote
737 1/2 8th Street, SE
Washington, DC 20003
(202) 546-4173 ext. 303


cc:    Ms. JudyAnn Bigby, Secretary of Executive Office of Health and Human Services
       Mr. Daniel J. Curley, Commissioner of the Department of Transitional Assistance
       Mr. John Auerbach, Commissioner of the Department of Public Health
                                   Case 1:12-cv-10872-DJC Document 1-2 Filed 05/15/12 Page 1 of 1
JS 44 (Rev. )                                                           CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided
by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating
the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS                                                                                         DEFENDANTS
                                                                                                       William F. Galvin, in his official capacity as Secretary of the Commonwealth of
       Bethzaida Delgado,
       NAACP-New England Area Conference and                                                           Massachusetts, JudyAnn Bigby, M.D., in her official capacity as Secretary of the
                                                                                                       Executive Office of Health and Human Services and, Daniel J. Curley, in his
       New England United for Justice                                                                  official capacity as Commissioner of the Department of Transitional Assistance
   (b) County of Residence of First Listed Plaintiff Middlesex                                           County of Residence of First Listed Defendant Suffolk

                                  (EXCEPT IN U.S. PLAINTIFF CASES)                                                                    (IN U.S. PLAINTIFF CASES ONLY)
                                                                                                          NOTE:                     IN LAND CONDEMNATION CASES, USE THE LOCATION OF
                                                                                                                                    THE TRACT OF LAND INVOLVED.


     (c) Attorneys (Firm Name, Address, and Telephone Number)
       John Kenneth Felter (BBO#162540), Ropes & Gray LLP,           Prudential Tower
                                                                                                          Attorneys (If Known)
       800 Boylston Street, Boston, MA            02199, 617-951-7000
       ken.felter@ropesgray.com


II. BASIS OF JURISDICTION                           (Place an “X” in One Box Only)          III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff)
                                                                                                     (For Diversity Cases Only)                                         and One Box for Defendant)
u 1    U.S. Government                u 3 Federal Question
                                      X                                                                                       PTF        DEF                                           PTF      DEF
         Plaintiff                          (U.S. Government Not a Party)                       Citizen of This State         u 1        u 1       Incorporated or Principal Place      u 4 u 4
                                                                                                                                                   of Business In This State

u 2    U.S. Government                u 4 Diversity                                             Citizen of Another State          u 2     u    2   Incorporated and Principal Place     u    5   u 5
         Defendant                          (Indicate Citizenship of Parties in Item III)                                                             of Business In Another State

                                                                                                Citizen or Subject of a           u 3     u    3   Foreign Nation                       u    6   u 6
                                                                                                  Foreign Country
IV. NATURE OF SUIT                    (Place an “X” in One Box Only)
           CONTRACT                                          TORTS                                  FORFEITURE/PENALTY                        BANKRUPTCY                     OTHER STATUTES
u   110 Insurance                        PERSONAL INJURY                PERSONAL INJURY         u 625 Drug Related Seizure          u 422 Appeal 28 USC 158            u   375 False Claims Act
u   120 Marine                       u   310 Airplane                 u 365 Personal Injury -         of Property 21 USC 881        u 423 Withdrawal                   u   400 State Reapportionment
u   130 Miller Act                   u   315 Airplane Product               Product Liability   u 690 Other                               28 USC 157                   u   410 Antitrust
u   140 Negotiable Instrument                 Liability               u 367 Health Care/                                                                               u   430 Banks and Banking
u   150 Recovery of Overpayment      u   320 Assault, Libel &               Pharmaceutical                                            PROPERTY RIGHTS                  u   450 Commerce
        & Enforcement of Judgment             Slander                       Personal Injury                                         u 820 Copyrights                   u   460 Deportation
u   151 Medicare Act                 u   330 Federal Employers’             Product Liability                                       u 830 Patent                       u   470 Racketeer Influenced and
u   152 Recovery of Defaulted                 Liability               u 368 Asbestos Personal                                       u 840 Trademark                            Corrupt Organizations
        Student Loans                u   340 Marine                         Injury Product                                                                             u   480 Consumer Credit
        (Excl. Veterans)             u   345 Marine Product                 Liability                        LABOR                      SOCIAL SECURITY                u   490 Cable/Sat TV
u   153 Recovery of Overpayment               Liability                PERSONAL PROPERTY        u   710 Fair Labor Standards        u   861 HIA (1395ff)               u   850 Securities/Commodities/
        of Veteran’s Benefits        u   350 Motor Vehicle            u 370 Other Fraud                 Act                         u   862 Black Lung (923)                   Exchange
u   160 Stockholders’ Suits          u   355 Motor Vehicle            u 371 Truth in Lending    u   720 Labor/Mgmt. Relations       u   863 DIWC/DIWW (405(g))         u   890 Other Statutory Actions
u   190 Other Contract                       Product Liability        u 380 Other Personal      u   740 Railway Labor Act           u   864 SSID Title XVI             u   891 Agricultural Acts
u   195 Contract Product Liability   u   360 Other Personal                 Property Damage     u   751 Family and Medical          u   865 RSI (405(g))               u   893 Environmental Matters
u   196 Franchise                            Injury                   u 385 Property Damage             Leave Act                                                      u   895 Freedom of Information
                                     u   362 Personal Injury -              Product Liability   u   790 Other Labor Litigation                                                 Act
                                             Med. Malpractice                                   u   791 Empl. Ret. Inc.                                                u   896 Arbitration
        REAL PROPERTY                      CIVIL RIGHTS               PRISONER PETITIONS                Security Act                  FEDERAL TAX SUITS                u   899 Administrative Procedure
u   210 Land Condemnation            u   440 Other Civil Rights       u 510 Motions to Vacate                                       u 870 Taxes (U.S. Plaintiff                Act/Review or Appeal of
u   220 Foreclosure                  u
                                     X   441 Voting                         Sentence                                                       or Defendant)                       Agency Decision
u   230 Rent Lease & Ejectment       u   442 Employment                 Habeas Corpus:                                              u 871 IRS—Third Party              u   950 Constitutionality of
u   240 Torts to Land                u   443 Housing/                 u 530 General                                                        26 USC 7609                         State Statutes
u   245 Tort Product Liability               Accommodations           u 535 Death Penalty              IMMIGRATION
u   290 All Other Real Property      u   445 Amer. w/Disabilities -   u 540 Mandamus & Other    u 462 Naturalization Application
                                             Employment               u 550 Civil Rights        u 463 Habeas Corpus -
                                     u   446 Amer. w/Disabilities -   u 555 Prison Condition          Alien Detainee
                                             Other                    u 560 Civil Detainee -          (Prisoner Petition)
                                     u   448 Education                      Conditions of       u 465 Other Immigration
                                                                            Confinement               Actions

V. ORIGIN                 (Place an “X” in One Box Only)
                                                                                                                  Transferred from
u 1 Original
X                      u 2 Removed from          u 3 Remanded from             u 4 Reinstated or u 5 another district                    u 6 Multidistrict
    Proceeding             State Court                    Appellate Court              Reopened                   (specify)                       Litigation
                                   Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
                                            42 U.S.C. §1973gg
VI. CAUSE OF ACTION Brief description of cause:
                                           Violations of Section 7 of the National Voter Registration Act
VII. REQUESTED IN     u CHECK IF THIS IS A CLASS ACTION                                             DEMAND $                                   CHECK YES only if demanded in complaint:
     COMPLAINT:          UNDER F.R.C.P. 23                                                                                                     JURY DEMAND:         u Yes     u No
VIII. RELATED CASE(S)
                       (See instructions):
      IF ANY                               JUDGE                                                                                        DOCKET NUMBER

DATE                                                                    SIGNATURE OF ATTORNEY OF RECORD
    May 15, 2012                                                          /s/John Kenneth Felter
FOR OFFICE USE ONLY

    RECEIPT #                     AMOUNT                                  APPLYING IFP                                    JUDGE                           MAG. JUDGE
                     Case 1:12-cv-10872-DJC Document 1-3 Filed 05/15/12 Page 1 of 1
                                                   UNITED STATES DISTRICT COURT
                                                    DISTRICT OF MASSACHUSETTS


1. Title of case (name of first party on each side only) Bethzaida Delgado, et al. v. William F. Galvin, in his official
   capacity as Secretary of the Commonwealth of Massachusetts, et al.


2. Category in which the case belongs based upon the numbered nature of suit code listed on the civil cover sheet. (See local
   rule 40.1(a)(1)).

              I.         410, 441, 470, 535, 830*, 891, 893, 895, R.23, REGARDLESS OF NATURE OF SUIT.

              II.        110, 130, 140, 160, 190, 196, 230, 240, 290,320,362, 370, 371, 380, 430, 440, 442, 443, 445, 446, 448, 710, 720,
                         740, 790, 820*, 840*, 850, 870, 871.

              III.       120, 150, 151, 152, 153, 195, 210, 220, 245, 310, 315, 330, 340, 345, 350, 355, 360, 365, 367, 368, 375, 385, 400,
                         422, 423, 450, 460, 462, 463, 465, 480, 490, 510, 530, 540, 550, 555, 625, 690, 751, 791, 861-865, 890, 896, 899,
                         950.

                         *Also complete AO 120 or AO 121. for patent, trademark or copyright cases.


3. Title and number, if any, of related cases. (See local rule 40.1(g)). If more than one prior related case has been filed in this
   district please indicate the title and number of the first filed case in this court.
        N/A


4. Has a prior action between the same parties and based on the same claim ever been filed in this court?

                                                                                     YES                NO     
                                                                                                                X


5. Does the complaint in this case question the constitutionality of an act of congress affecting the public interest?        (See 28 USC
   §2403)

                                                                                 YES               NO
                                                                                                            X
                                                                                                                
   If so, is the U.S.A. or an officer, agent or employee of the U.S. a party?

                                                                                     YES                NO     
                                                                                                                x


6. Is this case required to be heard and determined by a district court of three judges pursuant to title 28 USC §2284?

                                                                                     YES                NO     
                                                                                                                X


7. Do all of the parties in this action, excluding governmental agencies of the united states and the Commonwealth of
   Massachusetts (“governmental agencies”), residing in Massachusetts reside in the same division? - (See Local Rule 40.1(d)).

                                                                                     YES     
                                                                                             X
                                                                                                         NO     
              A.         If yes, in which division do all of the non-governmental parties reside?

                         Eastern Division      x
                                                                  Central Division                      Western Division     
              B.         If no, in which division do the majority of the plaintiffs or the only parties, excluding governmental agencies,
                         residing in Massachusetts reside?


                         Eastern Division                       Central Division                       Western Division     
8. If filing a Notice of Removal - are there any motions pending in the state court requiring the attention of this Court? (If yes,
   submit a separate sheet identifying the motions)

                                                                                     YES                NO     
                                                                                                                X


(PLEASE TYPE OR PRINT)
ATTORNEY'S NAME John Kenneth Felter
ADDRESS Ropes & Gray LLP, Prudential Tower, 800 Boylston Street, Boston, MA                             02199

TELEPHONE NO. 617-951-7000
                                                                                                       (CategoryForm12-2011.wpd - 12/2011)

				
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