Unofficial Copy Travis Co. District Clerk Velva L. Price 1 Who Plaintiffs Chose Not to Include in This Lawsuit

9/26/2017 5:00 PM Velva L. Price District Clerk Travis County CAUSE NO. D-1-GN-17-003451 D-1-GN-17-003451 Irene Silva LEAGUE OF WOMEN VOTERS OF § IN THE DISTRICT COURT OF TEXAS, TEXAS STATE CONFERENCE § OF THE NATIONAL ASSOCIATION § FOR THE ADVANCEMENT OF § COLORED PEOPLE (NAACP) and § RUTHANN GEER, § TRAVIS COUNTY, TEXAS Plaintiffs, § § v. § § ROLANDO PABLOS, Secretary of State § for the State of Texas, and KEITH § INGRAM, Director, Texas Elections § 98TH JUDICIAL DISTRICT Division of the Secretary of State, § Defendants. § § DEFENDANTS’ PLEA TO THE JURISDICTION TO THE HONORABLE JUDGE OF THIS COURT: Defendants, Rolando Pablos, Secretary of State for the State of Texas, and Keith Ingram, Director, Texas Elections Division of the Secretary of State (collectively, “Defendants”) file this Plea to the Jurisdiction and would respectfully show the Court the following: INTRODUCTION This lawsuit challenges the Secretary of State’s (“SOS”) production of public information in response to a request for information made by the Presidential Advisory Commission on Election Integrity (the “Commission”). Pursuant to the controlling statute, Texas Election Code § 18.066, the SOS is required to produce information from the statewide computerized voter registration list—subject only to limited, enumerated exceptions—to any requestor who complies with the statute’s procedures. The SOS intends to follow State law in response to the Commission’s request—no more, no less—just as it has in the past with similar requests from individuals and Unofficialorganizations from copy across the Travis political spectrum. Co. District Clerk Velva L. Price 1 This case represents a classic example of a plaintiff suing the wrong party under the wrong cause of action. In their Second Amended Petition, Plaintiffs bring claims under Chapter 37 of the Texas Civil Practice and Remedies Code (“UDJA”) alleging that Defendants’ actions violate section 18.066 of the Election Code and section 552.101 of the Texas Government Code (the “Texas Public Information Act” or “PIA”). But even a cursory glance at their pleadings reveals that Plaintiffs’ true grievance lies not with State actors, but with the Commission. See, e.g., Plfs’ Sec. Am. Pet. at ¶ 22 (“[T]he Commission’s stated intention…would enable widespread abuse of [private voter data] to the detriment of Texas citizens.”); id. at ¶ 79 (“[T]he Commission’s intended use of the Voter List, as confirmed in the Commission’s Letter itself, would violate Texas law and the rights of Texas citizens.”); id. at ¶ 86 (“The Commission’s intended (or compelled) publication of the information provided by Texas (and other states) would eviscerate the requirements set forth in Tex. Elec. Code § 18.066.”) (emphasis added). Regardless of the merits—or lack thereof—of Plaintiffs’ complaints about the federal Commission,1 their allegations are insufficient to state a claim against Defendants that falls within this Court’s jurisdiction. Rather, at the very least, Plaintiffs must allege and prove that the State Defendants have acted outside their legal authority under State law. But there is simply no evidence that the Defendants have violated or will violate State law. Indeed, as Plaintiffs grudgingly acknowledge in their amendments to their Original Petition, the SOS has applied section 18.066’s requirements in processing the Commission’s request. Id. at ¶ 22 (“[T]he Commission has submitted an affidavit providing that it ‘will not use the information obtained in connection with advertising or promoting commercial products or services’…”). Nevertheless, Plaintiffs continue to proceed with this lawsuit ostensibly to ensure that the production does not violate State law. But Unofficial copy Travis Co. District Clerk Velva L. Price 1 Who Plaintiffs chose not to include in this lawsuit. 2 their requested relief would compel the opposite result, by requiring the State to violate its own laws simply based on the fact that the request comes from the Commission. The Court should reject setting this dangerous precedent and find that Plaintiffs’ claims are barred by sovereign immunity. BACKGROUND In 2003, the Texas Legislature amended the Election Code to require the SOS to maintain a statewide computerized voter registration list. TEX. ELEC. CODE § 18.061; Acts 2003, 78th Leg., ch. 1315, Sec. 6, eff. Jan. 1, 2006. The enacted legislation took effect in 2006 and also required the SOS to produce information from the statewide computerized voter registration list to “any person on request not later than the 15th day after the date the request is received.” Id.; TEX. ELEC. CODE § 18.066 (emphasis added). In 2007 and 2009, the Legislature further amended the statute to directly address what voter information can be withheld from production under section 18.066. Id.; Acts 2007, 80th Leg., R.S., Ch. 594 (H.B. 41), Sec. 6, eff. September 1, 2007; Acts 2009, 81st Leg., R.S., Ch. 465 (S.B. 281), Sec. 6, eff. September 1, 2009. In its current form, the Legislature requires the SOS to withhold social security numbers and residential addresses for judges and their spouses. Id. This suit arises from the Commission’s request for information from the statewide computerized voter registration list. On or about June 28, 2017, the SOS received a letter from the Commission for publicly available voter registration records. See Ex. A-1. Shortly thereafter, the Commission requested that the State delay submitting any records until the United States District Court of the District of Columbia ruled on a pending motion that sought to prevent the Commission from receiving records. See Ex. A. After that motion was disposed of, the Commission sent the UnofficialSOS another letter copy re-asserting Travis its previous Co. requestDistrict for voter Clerk registration Velva records. L. ThePrice letter 3 explicitly and repeatedly stated that “the Commission will not publicly release any personally identifiable information regarding any individual voter or any group of voters from the voter registration records” the SOS submits. Ex. A-1. On September 7, 2017, the Commission formally requested the information through a “Voter Registration Public Information Request Form.” Ex. A-2. As this request constituted a request under 18.066, the SOS required the Commission to also submit an affidavit swearing under oath that the “information obtained from the State Master Voter File will not be used to advertise or promote commercial products or services.” Id.; see also TEX. ELEC. CODE § 18.066(d). Six days later the Commission submitted a re-executed request form that was amended to specifically request voter history for certain elections from 2006 onward. Id. Notably, the Commission submitted the required affidavit in conjunction with each request. Id. On September 19, 2017, the Commission paid the SOS $3,427.00, the full amount for the cost of the file which would be charged to any other requestor requesting the file. Further, in addition to requiring the affidavit, and the payment, which it has already received, the SOS intends to follow the law in processing this request, including by withholding social security numbers and the exempted residential addresses of judges and their spouses. Ex. A. The Commission’s request for voter information is not unusual. Indeed, the SOS responds to similar requests from requestors from across the political spectrum. See Ex. A-3. For instance, state and federal legislators, as well as people associated with political campaigns—both Democrat and Republican—routinely request this information to use in conjunction with elections, campaigns, and constituent outreach. University and research organization, such as Catalist and Harvard University, also request this information. Likewise, non-profit organizations, such as the UnofficialMexican American copy Legal TravisDefense and Co. Educational District Fund Clerk (“MALDEF Velva”) and L.the PriceNational 4 Association of Latino Election Officials (“NALEO”), have also requested and received this information in furtherance of their missions. Finally, federal courts routinely request this information to populate jury lists, both under section 18.066 and separate federal statutes and court order specific to jury information. Notably, Plaintiffs have never objected to the release of public voting information to these requestors. Instead, they single out the Commission and ask the Court to impose restrictions over and above—and in conflict to—what the law requires in conjunction with this specific request. But the statute in question requires the SOS to equally apply the law’s requirements to “any person” who requests information—including the Commission. TEX. ELEC. CODE § 18.066. SUMMARY OF THE ARGUMENT Plaintiffs’ claims are barred by sovereign immunity and fail as a matter of law for multiple independent reasons. First, Plaintiffs’ claims are barred by sovereign immunity because they have not identified a statutory waiver of immunity for any of their claims. More specifically, it is well established that the UDJA does not waive the State’s immunity by itself and neither the Election Code, nor the PIA waive the State’s immunity to allow this suit. Second, Plaintiffs have not alleged and cannot establish a valid ultra vires claim because it is undisputed that Defendants have acted in accordance with State law. Initially, as Plaintiffs effectively concede in their pleadings, the Election Code—not the PIA—controls the Defendants’ response to the Commission’s request as it is the more specific and later enacted statute. And, there is simply no evidence that Defendants have violated or will violate the Election Code. Rather, Plaintiffs’ attempt to have the Court condition the release of public information on additional restrictions—not found in the statute or applied to other requestors—is a blatantly improper attempt to control State action. Third, even if Unofficialthe Court holds thatcopy the PIA Travis governs Co.the production, District the ClerkCourt still Velva lacks jurisdiction L. Price over 5 Plaintiffs’ claims because their claims and requests for relief are redundant to those available under section 552.3215 of the PIA.

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