in the united states district court for the...

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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

STATE OF TEXAS,

Plaintiff,

v.

ERIC H. HOLDER, JR.,ATTORNEY GENERAL OF THEUNITED STATES, et. al.

Defendants.

Case No. 1:12-cv-00128RMC-DST-RLW

DEFENDANT-INTERVENORS’1 JOINT REQUEST FOR JUDICIAL NOTICE

Pursuant to Rule 201(b)(2) of the Federal Rules of Evidence, Defendant-

Intervenors respectfully ask this Court to take judicial notice of the following facts. Rule

201(b)(2) provides for judicial notice of facts “not subject to reasonable dispute” because

they “can be accurately and readily determined from sources whose accuracy cannot be

reasonably questioned.” Under Rule 201(d), this Court “may take judicial notice at any

stage of the proceeding.”

1 This request is submitted on behalf of all Defendant-Intervenors, specifically, the Texas StateConference of NAACP Branches and the Mexican American Legislative Caucus of the TexasHouse of Representatives; the Texas League of Young Voters Education Fund, Imani Clark,KiEssence Culbreath, Demariano Hill, and Dominique Monday; the Kennie Intervenors (EricKennie, Anna Burns, Michael Montez, Penny Pope, Marc Veasey, Jane Hamilton, David De LaFuente, Lorraine Birabil, Daniel Clayton, and Sergio Deleon); the Texas Legislative BlackCaucus, the League of Women Voters of Texas, the Justice Seekers, Peter Johnson, RonaldWright, and Donald Wright; Southwest Workers Union, La Union Del Pueblo Entero; VictoriaRodriguez, Nicole Rodriguez, Southwest Voter Registration Education Project, Mi Familia VotaEducation Fund.

Case 1:12-cv-00128-RMC-DST-RLW Document 239 Filed 06/27/12 of 12

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Intervenors request that the Court take judicial notice of two groups of facts. First,

Intervenors request judicial notice based on data produced by the U.S. Census Bureau. In

this regard, Intervenors seek to supplement Defendant Holder’s request for judicial notice

of Census data made on June 21, 2012 (Doc. 219), i.e., Intervenors agree that the Court

should take judicial notice as requested by Defendant Holder, and submit this request to

identify additional relevant Census data to be admitted into evidence.2

Second, Intervenors request that this Court take judicial notice of data contained in

the voter registration database that the State of Texas produced to Intervenors, and which

carries a date of May 10, 2012. Since the data are located in a database maintained by

Texas, Intervenors submit that Texas may not reasonably dispute their accuracy.

I. Judicial Notice of Census Data3

1. According to the 2010 Census, the State of Texas has a total population age 65 or

older of 2,601,886 persons, including 1,760,065 non-Hispanic White persons

(67.6%), 532,921 Hispanic persons (20.5%), 220,837 non-Hispanic Black persons

(8.5%), and 65,804 non-Hispanic Asian persons (2.5%). Exhibit 1.4

2 As noted by Defendant Holder, it is routine for federal courts to take judicial notice of Censusdata, e.g., Hollinger v. Home State Mut. Ins. Co., 654 F.3d 564, 572-73 (5th Cir. 2011), and thisCourt has done so in prior Section 5 litigation. City of Port Arthur v. United States, 517 F. Supp.987, 993 n.5 (D.D.C. 1981).

3 Consistent with the approach taken by Defendant Holder, Intervenors attach as exhibits to thisrequest the tables downloaded from the U.S. Census Bureau website which reflect the data forwhich judicial notice is being requested.

4 Intervenors note one data issue with regard to comparing the data set forth in this request to thedata included in Defendant Holder’s request. The Justice Department reported population andvoting age population data for Black persons and Asian persons by including, for both groups,those individuals who self-identified as Black alone or Asian alone, respectively, and, in


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2. According to the 2010 Census, the State of Texas has a total population of

25,145,561 persons, including 11,397,345 non-Hispanic White persons (45.3%),

9,460,921 Hispanic persons (37.6%), 2, 886,825 non-Hispanic Black persons

(11.5%), and 948,426 non-Hispanic Asian persons (3.8%). Exhibit 2.

3. According to the 2010 Census, the State of Texas has a voting-age population of

18,279,737, including 9,074,684 non-Hispanic White persons (49.6%), 6,143,144

Hispanic persons (33.6%), 2,076,282 non-Hispanic Black persons (11.4%), and

716,968 non-Hispanic Asian persons (3.9%). Exhibit 3.

4. Among non-Hispanic White persons of voting age, 19.4% are age 65 or older

(1,760,065 divided by 9,074,684). See exhibits 1 and 3.

5. Among Hispanic persons of voting age, 8.7% are age 65 or older (532,921 divided

by 6,143,144). See exhibits 1 and 3.

6. Among non-Hispanic Black persons of voting age, 10.6% are age 65 or older

(220,837 divided by 2,076,282). See exhibits 1 and 3.

7. Among non-Hispanic Asian persons of voting age, 9.2% are age 65 or older

(65,804 divided by 716,968). See exhibits 1 and 3.

addition, individuals who self-identified as Black in combination with White or Asian incombination with White, respectively. (Doc. 219, at 2.) The Census data most readily availablefor persons age 65 or older do not, however, provide these two “in combination with” categories.Accordingly, the data reported here for Black persons and Asian persons, age 65 or older,include only those who self-identified as Black alone or Asian alone. The same approach alsothen is followed in this request for the total population data and the voting-age population data,in order to allow for an appropriate “apples to apples” comparison between the “age 65 or older”data and the other population data. This data reporting issue does not affect the data for Whitesand Hispanics.


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8. Among non-Hispanic White persons, Black persons, and Hispanic persons, the

rates of voting by mail within each group, as a function of all voters in that group,

in general elections from 2004 to 2010 are as follows (exhibit 4):

White Alone,Not Hispanic orLatino

AfricanAmerican Alone

Hispanic orLatino

2004 5.1% 4.7% 3.7%2006 3.9% 6.6% 5.8%2008 6.2% 2.0% 2.9%2010 6.1% 4.6% 3.8%

II. Voter Registration Data5

1. Texas law requires that all voter registration applicants include on their

registration application “the applicant's Texas driver's license number or the

number of a personal identification card issued by the Department of Public

Safety,” if the applicant has been issued either of these numbers. “[I]f the

applicant has not been issued [such] a number,” the applicant instead must include

“the last four digits of the applicant's social security number.” If the applicant

does not have a driver’s license number, personal identification card number, or a

social security number, the applicant then must include “a statement . . . that the

applicant has not been issued [any such] number . . . .” Texas Election Code §

13.002(c)(8). Exhibit 5.

5 Intervenors likewise attach to these judicial notice requests the appropriate the back-upexhibits. Also, today (June 27, 2012), Intervenors will ask Texas and Defendant Holder tostipulate to the facts enumerated in section II.


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2. Texas Election Code § 13.002(c)(8) was amended in 2003 to add the requirement

that, in the first instance, a voter registration applicant is required to include his or

her driver’s license number or personal identification card number on the voter

registration application. Acts 2003, 78th Leg., ch. 1315 (H.B. 1549), § 1, effective

January 1, 2004. Exhibit 6.

3. There are 12,911,200 records in the unaltered Texas voter registration database

file dated May 10, 2012, provided by Texas to the Defendant-Intervenors. Exhibit

7.

4. The May 10, 2012 voter registration database includes a data field entitled

“registration_date,” which Texas specified, in the voter record layout for the voter

registration database, is the “Voter Application Date.” Exhibit 8. Of the

12,911,200 records in the database, only 153 are missing a value in the

“registration_date” field. Exhibit 7.


“voter_status_code,” which Texas specified in the voter record layout includes the

following values: “V = Active, C = Cancelled, S = Suspense, L = Live Check.”

Exhibit 8.

6. A query in the May 10, 2012 voter registration database for voters who registered

on or after January 1, 2004 (using the “registration_date” field), who have the

status code “V” or “S”, produces 7,278,714 registered voters (i.e., 56.4% of the


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active and suspense voters in the database registered on or after January 1, 2004).

Exhibit 9.


“official_id_number,” which Texas specified in the voter record layout represents

the “Texas Drivers License Number/Texas ID.” Exhibit 8.

8. Of the 7,278,714 active/suspense voters who registered on or after January 1,

2004, 580,225 (8.0%) are missing a value in the “official_id_number” field (i.e.,

their registration record does not include either a driver’s license number or a

personal identification card number). Exhibit 9.


“Spanish-surname_fg,” which Texas specified in the voter record layout “Indicates

whether Voter has a Spanish Surname (Y = Yes, N = No).” Exhibit 8.

10. Among the 7,278,714 active/suspense voters who registered on or after January 1,

2004, 1,549,105 (21.3%) are flagged in the voter registration database as having a

Spanish surname. Exhibit 9.

11. Among the 580,225 active/suspense voters who registered on or after January 1,

2004 who are missing a value in the “official_id_number” field, 150,493 (25.9%)

are flagged in the voter registration database as having a Spanish surname.

Exhibit 9.

12. Accordingly, among the active/suspense voters who registered on or after January

1, 2004, 9.7% of those flagged as having a Spanish surname do not have a value in


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the “official_id_number” field (i.e., 150,493 Spanish-surname persons without that

value divided by 1,549,105 total Spanish-surnamed persons). Exhibit 9.

13. Among the active/suspense voters who registered on or after January 1, 2004,

7.5% of those identified as not having a Spanish surname lack a value in the

“official_id_number” field (i.e., 429,732 persons without a Spanish-surname and

without that value divided by 5,729,609 total persons without a Spanish-surname).

Exhibit 9.

Date: June 27, 2012 Respectfully submitted,

/s/ Ezra D. Rosenberg_______Ezra D. Rosenberg (D.C. Bar No. 360927)Michelle Hart Yeary (Pro Hac Vice)Dechert LLP902 Carnegie Center, Suite 500Princeton, NJ 08540-6531(609) 955 3222 (phone)Email: [email protected]: [email protected]

Jon Greenbaum (D.C. Bar No. 489887)Mark A. Posner (D.C. Bar No. 457833)Robert A. KengleLawyers’ Committee for Civil Rights UnderLaw1401 New York Ave., NW, Suite 400Washington, D.C. 20005(202) 662-8389 (phone)Email: [email protected]: [email protected]

Wendy Weiser (Pro Hac Vice)Myrna Pérez (Pro Hac Vice)Ian Vandewalker (Pro Hac Vice)


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The Brennan Center for Justice at NYU LawSchool161 Avenue of the Americas, Floor 12New York, NY 10013-1205Email: [email protected]: [email protected]: [email protected]

Gary BledsoeLaw Office of Gary L. Bledsoe & Associates316 West 12th St., Suite 307Austin, TX 78701(512) 322-992 (phone)Email: [email protected]

Victor L. GoodeNAACP National Headquarters4805 Mt. Hope Dr.Baltimore, MD 21215-3297(410) 580-5120 (phone)Email: [email protected]

Robert S. Notzon (D.C. Bar No. TX0020)The Law Office of Robert Notzon1507 Nueces St.Austin, TX 78701(512) 474 7563 (phone)Email: [email protected]

Jose GarzaLaw Office of Jose Garza7414 Robin Rest Dr.San Antonio, TX 98209(210) 392-2856 (phone)Email: [email protected]

Counsel for Defendant-IntervenorsTexas State Conference of NAACP Branchesandthe Mexican American Legislative Caucus ofTexas House Representatives


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Ryan HaygoodNatasha M. KorgaonkarLeah C. AdenDale E. HoDebo P. AdegbileElise C. BoddieNAACP Legal Defense and Educational Fund,Inc.99 Hudson Street, Suite 1600New York, NY 10013(212) 965-2200/Fax: (212) 226-7592Email: [email protected]: [email protected]: [email protected]: [email protected]: [email protected]: [email protected]

FRIED, FRANK, HARRISSHRIVER & JACOBSON LLPDouglas H. FlaumMichael B. de LeeuwAdam HarrisOne New York PlazaNew York, NY 10004-1980(212) 859-8000

Counsel for Texas League of Young VotersEducation Fund, Imani Clark, KiEssenceCulbreath, Demariano Hill, and DominiqueMonday

J. Gerald HebertD.C. Bar No. 447676Attorney at Law191 Somerville Street, #405Alexandria, VA 22304Telephone: 703-628-4673Email: [email protected]

Chad W. DunnD.C. Bar No. 987454


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Texas Bar No. 24036507Brazil & Dunn LLP4201 Cypress Creek Pkwy., Suite 530Houston, Texas 77068Telephone: (281) 580-6310Facsimile: (281) 580-6362Email: [email protected]

Counsel for Kennie Defendant-Intervenors

John Kent Tanner3743 Military Road, N.W.Washington, DC 20015(202) 503-7696Email: [email protected]

Nancy AbuduKatie O’ConnorMoffatt Laughlin McDonaldAmerican Civil Liberties Union Foundation Inc.230 Peachtree Street NW, Suite 1440Atlanta, GA 30303(404) 523-2721/Fax: (404) 653-0331Email: [email protected]: [email protected]: [email protected]

Lisa GraybillRebecca RobertsonAmerican Civil Liberties Union Foundation ofTexas1500 McGowan StreetHouston, Texas 77004(713) 942-8146Email: [email protected]: [email protected]

Kumiki GibsonAdvancement Project1220 L Street, NW, Suite 850Washington, DC 20005(202) 728-9557


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Email: [email protected]

Counsel for Justice Seekers, League of WomenVoters of Texas, Texas Legislature BlackCaucus, Donald Wright, Peter Johnson, RonaldWright, Southwest Workers Union and LaUnion Del Pueblo Entero

Nina PeralesMexican American Legal Defense &Educational Fund, Inc.110 Broadway, Suite 300San Antonio, TX 78205(210) 224-5476/Fax: 210-224-5382Email: [email protected]

Counsel for Mi Familia Vota Education Fund,Southwest Voter Registration EducationProject, Nicole Rodriguez, Victoria Rodriguez


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CERTIFICATE OF SERVICE

I certify that on June 27, 2012, the foregoing was filed with the Clerk of the

Court using the CM/ECF system which will electronically serve all counsel of record.

/s/ Ezra D. Rosenberg

Ezra D. Rosenberg


Case 1:12-cv-00128-RMC-DST-RLW Document 239-1 Filed 06/27/12 Page 1 of 6

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