FILED RECEIVED FR ICNI RCCUOIUTR T [J A2N 240 }1�9 COMMONWEALOTFKH E NTUCKY /\�At:Vf"I f" M/\NC lF PL< FRANKLCJNI RCUCIOTU RT rRAMc<:,Lc lf-uCJ C URT DIVIS1f_I ON CNIALC TIONNO 1.8 -C0l0-0&7 COMMONWEALOTFHK ENTUCKY PLAINTIFF OFFIOCFET HES ECRETAORFSY TA T Ee,xr el. ALISON LUNDERGAiNnh GeoRrffiI cMiEaSl, capaacsSi etcyr eotfSa traoytft e hC eo mmonwealth ofK entucky V. COMPLAI JAREDDE ARING DEFENDANT and JENNIFSECRU TCHFIELD DEFENDANT ********* **** ** * Comenso wt hPel aitnhtCeioff m,m onwoefaK letnht uOcfkfyio cfte h See creotfa ry Staetxre e,Al l.i sLounne drgGarni mienhs e,or ffi cicaalp aacsSi etcyr eotfSa tra(yt' e' Plaintiff' or.t .h Oeffi coef t hSee creotfSa traytb eya" n)td,h rocuoguhn asnebdlr ,i tnhgaiscs t foiroa n declaroafrt iigoahngt asi Dnesfetn daJnatrDsee,da r(i"nDge arainnJdge 'n"nS)icu fetrc hfield (''Scutacnhdtfi,oe glewdti"htD'ehe r a r'i·nDge,f endants''). NATUROEFA CTION I. Thiissa complfaoiarn d te claroafrt iigohgnto sv,e rnbeytd h Kee ntucky DeclarJautdogrmAyec ntKt,R S 4 18.e0st1e 0aq,n. Kd e ntuRcukloyefC ivil P5r7o.c edure 2. KRS4 18.p0r4o0v tihdCieossu wrti tahu thtoo'r 'imtaayb k ien ddiencgl aorfation rigwhhtest,oh rne orct o nseqrueelniitoseirc fa o lub lead s kewdh"ean c ontroevxeirsstys . 3. Heraena, c taunajdlu sticcoinatbrloeevx eiwrsisttryshe spteotc hltee grailgo hft thOeffi coef t hSee creotfSa tratyto ae c cKesesn tuVcoktyRe'ersg istSryastt(ie"omYn R S"') because Defendants-w ho are, respectively, Executive Director and Assistant to the Executive Director of the Kentucky State Board of Elections ("SBE")-have repeatedly advanced the legally erroneous position that the Office of the Secretary of State should be restricted from accessing the YRS. 4. Contrary to Defendants' mistaken belief, the Office of the Secretary of State is legally entitled to access the YRS pursuant to federal and Kentucky law. Indeed, access is necessary to perform the duties imposed on the Secretary of State by federal and Kentucky law. The Secretary of State's right to access the YRS has been reaffirmed by a unanimous resolution passed by the SBE. A consent decree entered into by the Secretary of State and the United States Department of Justice in Judicial Watch, Inc. v. Alison Lwzdergan Grimes, et al, Case No. 3:l 7- cv-00094, U.S. District Court for the Eastern District of Kentucky, Frankfort Division, further affirms that, as the Commonwealth's Chief Election Official, the Secretary of State is necessarily required to access Kentucky's YRS. 5. Defendants' erroneous position that the Office of the Secretary of State has acted mappropriately in accessing the VRS is inconsistent with both federal and Kentucky law, as well as the unanimous resolution of the SBE reaffirming the Secretary of State's right to access the YRS. Defendants' repeated incorrect comments have caused disharmony and confusion among the Office of the Secretary of State and the SBE, as well as the general public. 6. Accordingly, because of the importance of resolving this issue for both the current Secretary's administration and future administrations, the Office of the Secretary of State seeks a declaration of nghts that it is entitled as a matter of law to access the YRS. 2 PARTIES 7. Plaintiff is the Office of the Secretary of State of the Commonwealth of Kentucky. The Secretary of State is a Constitutional state officer, pursuant to Section 91 of Kentucky Constitution. Pursuant to KRS 117.015(2), the Secretary of State further serves as Chair of the SBE and the Chief Election Official of lhe Commonwealth of Kentucky. 8. Defendant Jared Dearing currently serves as the Executive Director of the SBE, appointed pursuant to KRS 117.025(1). Defendant Jennifer Scutchfield currently serves as Assistant to the Executive Director of the SBE pursuant to KRS 117.025(2), and is a lawyer for the Commonwealth of Kentucky by Executive Order of the Governor. The SBE is a state agency responsible for "administer[ing] the election laws of the state and supervis[ing] registration and purgation of voters within the state" pursuant to KRS 117.015, et seq. KRS 117.015(1). The SBE consists of the Secretary of State and six members appointed by the Governor pursuant to KRS 117.015(2). The SBE staff consists of an Executive Director, who is the ·'chief administrative officer for the board," an assistant "of a different political party than the director," and a bipartisan staff sufficient to carry out its duties. KRS 117. 025(1) and (2). 9. An actual, justiciable controversy exists, and this Court has subject matter jurisdiction over this action pursuant to KRS 418.040 and KRS 23A.0l 0. 10. Venue is appropriate in this Court pursuant to KRS 452.405 and 452.480, because this action generally relates to a controversy arising in Frank.fort, Kentucky and the primary offices of the Defendants are located in Frankfort, Kentucky. 3 FACTUALB ACKGROUND I. Allegations by Defendant Dearing. 11. On August 27, 2018, Defendant Dearing wrote a letter addressed to the members of the SBE (the "Letter"). A true and correct copy of the Letter is attached hereto as Exhibit 1. 12. Among various other factually unfounded and legally incorrect claims, Defendant Dearing asserted in the Letter that employees of the Office of the Secretary of State have improperly accessed the VRS system. Specifically, Defendant Dearing claims that the ·'Secretary of State (SOS) staff continue to have access to and use [YRS] for inappropriate reasons, which include, but may not be limited to, the use of YRS lo look up potential SBE state employees during the interview process." Exhibit 1, at 1. Mr. Dearing further claims ·'[Secretary of State] staff (during my tenure) have looked up the voter registration and party affiliation information of current SBE staff and potential SBE staff during their interview process. These employees include both merit and contracted employees." Id. 13. The Letter makes clear that Defendant Dearing mistakenly believes that it is improper for the Secretary of State to have any access to the YRS database. Indeed, Mr. Dearing suggests that, "neither former Secretary of State, Trey Grayson, nor his staff, had access to the voter registration database and yet Secretary Lundergan-Grimes has given herself this access and continually uses it for inappropriate reasons.'· Id. (emphasis added). 14. Defendant Scutchfield has failed to correct the legal misinterpretations of Defendant Dearing and, to the contrary, has advised SBE staff in a manner inconsistent with the right of the Secretary of State to access the VRS. In the performance of their official duties, Defendants have maintained the legally erroneous position that the Office of the Secretary of State's access to the YRS should be restricted. 4 15. The allegations in the Letter related to the Secretary of State's access to the VRS are based upon Defendants ' misapprehension of federal and Kentucky law regarding the Secretary of State's duties as the Commonwealth's Chief Election Official and Chair of the SBE. Il. The ecretary of State's Duties Under Federal and Kentucky Law Require Access to the VRS. 16. The Commonwealth of Kentucky is subject to the requirements of the National Voter Registration Act of 1993 (''NVRA"') and the Help America Vole Act of 2002 ('·HA VA'} 17. The NVRA was enacted '"lo establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office'' while "ensur[ing] that accurate and cWTent voter registration rolls are main tamed.'' 18. Section 10 of the NVRA requires each state to designate a state officer as the Chief Election Official. 19. Pursuant to KRS 117.015, the Commonwealth of Kentucky has designated that the Secretary of State serve as the Chief Election Official for the Commonwealth and Chair of the SBE. KRS 117.015 contemplates that the Secretary of State and the SBE are interdependent. For example, SBE budget requirements are attached to the Secretary of State's office. 20. The Secretary of State, as Chief Election Official and Chair of the SBE, 1s charged with ensuring Kentucky's compliance with the NVRA, HA VA, the Voting Rights Act of 1965 ("VRA"), the Uniformed and Overseas Citizens Absentee Voting Act of 1986 ("UOCAVA"), and the Military and Overseas Voters Empowennent Act of 2009 (''MOVE"). 21. Pursuant to KRS 118.105, et seq., the Secretary of State, as Chief Election Official and Chair of the SBE, receives statements of candidacy and nominating petitions, candidate withdrawals, and certifies names of candidates for placement on the ballot. 5 22. Pursuant to KRS 118.425(4), the Secretary of State, as Chief Election Official, receives certifications of official vote totals after each election. 23. The Secretary of State as Chief Election Official and Chair of the SBE, after each federal election cycle, certifies to the Election Administration Commission ("EAC"), Kentucky voter registration statistics, voter turnout, and compliance with federal law. 24. Additionally, pursuant to KRS 116.112 and the NYRA, the SBE performs regular maintenance of the YRS, including purges of voters who have died, been declared incompetent, and been convicted of a felony offense under KRS 116.113. 25. Accordingly, consistent with the office·s obligations under federal and Kentucky law, the Secretary of State as Chief Election Official is required to utilize the YRS before, on, and after each election day and throughout the regular course of business to coordinate election inquiries and field complaints. To comply with these obligations, the Office of the Secretary of State has obtained a read-only copy of the YRS, which is regularly updated by SBE. 26. Section 303(a)( 1) of the HAY A requires that "each State, acting through the chief State election official, shall implement, in a uniform and nondiscriminatory manner, a single, uniform, official, centralized, interactive computerized statewide voter registration list defined, maintained, and administered at the State level that contains the name and registration information of every legally registered voter in the State and assigns a unique identifier to each legally registered voter in the State .. _,- (emphasis added). The statute continues, "Any election official in the State, including any local election official, may obtain immediate electronic access to the information contained in the computerized list." Id. at Section 303(a)(l)(v) (emphasis added). 6 27. Prior to Secretary Grimes· tenure as Secretary of State, the VRS existed only in a mainframe version, which as a technical matler, could not grant multiple user access. The current iteration of the VRS software, which is technically capable of providing multiple user access. as required by HA VA, was created during Secretary Gnmes ' tenure in order to comply with HAYA. 28. Indeed, federal and Kentucky law expressly provide the Secretary of State with access to Kentucky 's VRS in order to fulfill the Secretary"s duties as Chair of SBE and Chief Election Official for the Commonweal th pursuant to the NVRA, UOCA YA, HA VA, MOVE, and Kentucky statutes. III. The State Board of Elections Expressly Reaffirms The Secretary of tate's Right to Access the VR . 29. The day after Defendant Deanng 's publication of his Letter, the SBE reaffirmed the Secretary of State's role as Kentucky's Chief Election Official, which expressly requires the Secretary to have access to the YRS. 30. Specifically, on August 28, 2018, The Commonwea lth of Kentucky State Board of Elections voted to approve a Resolution Affirming Kentucky State Board of Elections Staffing and Oversight (the ·'SBE Resolution"). A true and correct copy of the SBE Resolution is attached hereto as Exhibit 2. 31. The SBE Resolution recites the Secretary of State·s duties and obligations as Kentucky 's Chief Election Official under federal and Kenrucky law set forth above. The SBE Resolution also expressly reaffirms as follows: [. . .] WHEREAS , the Secretary of State as Chief Election Official utilizes State Board of Elections' systems, specifically the Voter Registration System, up to, on, and after each election and throughout the regular course of business, to coordinate election inquiries and field complaints; 7 NOW, THEREFORE, be it resolved the Board of Elections of the Commonwealth of Kentucky reaffinn expressly: Section 1. That the Secretary of State, Chief Election Official and Chair of the Kentucky State Board of Elections, to carry out the Board's statutory obligations and responsibilities in elections, is necessarily charged with the day-to-day oversight of regular operations of the Kentucky State Board of Elections and its staff, including the Executive Director and the Assistant to the Executive Director, who serve at the pleasure of the Board. Section 2. That the Secretary of State, Chief Election Official, and Chair of the Kentucky State Board of Elections, to carry out the Board's statutory obligations and responsibilities in elections, is necessarily required to have access to illformation i11 order to carry out and fulfill the aforementioned state and federal statutory obligations. Section 3. The Executive Director is directed to timely and fully communicate to the Chair and the Kentucky State Board of Elections matters that the Executive Director seems of importance to the purview of the Board in the thoughtful execution of the Board's statutory mission to oversee the fair administration of the election process. (emphasis added). 32. Accordingly, the bipartisan members of the SBE have expressly reaffirmed the Secretary of State's right to access the VRS pursuant to both federal and Kentucky law. IV. The U.S. Department of Justice Affirms The Secretary of State's Role as Kentucky's Chief Election Official and Responsibility for Kentucky's Compliance With the VRA, Which Necessarily Requires Access to Kentucky's VRS. 33. The United States Department of Justice also affinned the Secretary of State's right to access the YRS in the matter of Judicial Watch, Inc. v. Alison Lundergan Grimes, et al., Case No. 3:17-cv-00094, in the U.S. District Court for the Eastern District of Kentucky, Frankfort Division (the "NVRA Lawsmt"). 8 34. On ovember 14, 20 I 7, Judicial Watch, a not-for-profit organization that files lawsuits "to enforce compliance with federal and state laws concerning the provision of records, public integrity, government accountability, and votmg rights;' filed the NVRA Lawsuit against the Commonwealth of Kentucky , the Secretary of State, and the then-interim Executive Director and the individual members of the SBE. 35. On June 12, 2018. with the agreement of the Secretary of State, the United States Department of Justice intervened as a party to the NVRA Lawsuit on behalf of the federal government. 36. On July 3, 2018, Judicial Watch, the United States Department of Justice, and the Secretary of State agreed to enter a Consent Decree (the "Consent Decree"). A true and correct copy of the Consent Decree is attached hereto as Exhibit 3. The Secretary of State's agreement to the Consent Decree greatly expedited the resolution of the case which otherwise would have been mired in discovery and litigation for months or years. 37. Among other provisions, the Consent Decree affirms that the Secretary of State is the Chief Election Official of Kentucky, and therefore is responsible for Kentucky's compliance with the NVRA. 38. Specifically , the Consent Decree states: The Commonwealth of Kentucky, through its State Board of Elections, 1s responsible for administermg Kentucky's election laws and supervising the registration and purging of registrants within the State. KRS § 117 015(1 ). The Secretary of State is the ex o.ffic10c hair of the Kentucky State Board of Elections and Kentucky's chief State election official, and 1s responsible for coordinating the State's responsibilities under the NVRA. See 52 U.S.C. § 20509; K.RS § 117.015(2). 9 39. As Kentucky's Chief Election OfficiaJ responsible for Kentucky's compliance with the NVRA, the Secretary of State is necessarily required to have access to the VRS in order lo carry out and fulfill the aforementioned stale and federal statutory obligations. V. Defendant Dearing's Allegations Are Erron eous As A Matter of Law. 40. Defendant Dearing alleges in his Letter that the Office of the Secretary of State improperly accessed the YRS to determine the party affiliation of a job candidate. 41. Notwithstanding that Dearing" s allegation is factually inaccurate, the allegation is unsound as a matter of law. It would be proper for the Office of the Secretary of State to access VRS data to ensure that SBE staff are hired on a bipartisan basis, as required by Kentucky law. 42. Pursuant to KRS 117.025(2), SBE is required to ''employ, on a bipartisan basis, a staff sufficient to carry out the duties assigned to the board, including legal counsel and a training officer to provide assistance to the county clerks and the county boards of elections in their training of precinct election officers.'' (e mphasis added). 43. Consistent with this requirement, the SBE and the Office of the Secretary of State would be permitted to consider an applicant's party affiliation to ensure that the SBE staff are hired on a ''bipartisan basis." CLAIMS Count I Declaratory Judgment Pursuant to KRS 418.040 44. Plaintiff incorporates by reference each and every allegation previously set forth in this Complaint as 1f fuJly set forth herein. 45. There exists an actual and justiciable controversy with respect to the legal ngbt of the Office of the Secretary of State to access Kentucky's VRS and to maintain a read-only copy of the VRS. 10