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Univ. of South Carolina School of Law

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Wednesday, August 6, 2008

Bad Motor Voter?: Eighth Circuit Affirms Hearsay Rulings In United States' Suit Against Missouri For Violating The Motor Voter Act

United States v. Missouri, 2008 WL 2889517 (8th Cir. 2008), is an interesting voting rights case involving a tripartite evidentiary issue.  In Missouri, the United States filed suit against the State of Missouri (and the Missouri Secretary of State in her official capacity), alleging that Missouri was in violation of its obligations under the National Voter Registration Act of 1993 (the NVRA or "Motor Voter Act").  It soon became apparent that Missouri was indeed having difficulty complying with its obligations under the NVRA as, inter alia, throughout the litigation, the registered voters in numerous Missouri counties exceeded the number of eligible voters.  But was Missouri's behavior unreasonable?

The trial court found that it was not and that Missouri had met its NVRA obligation to make a reasonable effort to conduct a general program of voter list maintenance.  To the extent some NVRA violations existed, the court found those violations were the responsibility of individual local election agencies (LEAs) and that Missouri was not directly responsible for enforcement of the NVRA against the LEAs.  The court thus granted summary judgment in favor of Missouri on "any claim by the United States which seeks to hold Missouri responsible for enforcement of the NVRA against local election authorities," but allowed additional discovery for the United States to make its case that Missouri's compliance was unreasonable.

The Eighth Circuit reversed and remanded based upon what it deemed the trial court's incorrect interpretation of the NVRA, but it affirmed an evidentiary ruling by the trial court that will make it difficult for the United States to prove its case.  You see, under the NVRA, the Election Assistance Commission (EAC) makes reports to Congress in odd-numbered years, and, in 2005, the EAC sent survey forms to Missouri late. The EAC thereafter denied Missouri's request for an extension of time and told Missouri to do the best it could, which it did, with the bulk of its work falling on one person. Missouri compiled survey responses from the LEAs into one report, and sent the report to the EAC.  Understandably, the survey responses revealed possible problems -- hence the registered voter  vs. eligible voter problem -- but the trial court only allowed those responses to be admitted to demonstrate that Missouri had notice of possible problems, not that there actually were problems.

The Eighth Circuit affirmed, finding that these survey responses were hearsay and thus inadmissible to prove the truth of the matter asserted in them: the possible problems (although they were admissible to prove notice).  In so doing, it found that the responses were inadmissible under three diffent rules of evidence.

First, it found that the responses were inadmissible under Federal Rule of Evidence 801(d)(1)(A) as admissions of a party opponent and/or Federal Rule of Evidence 801(d)(2)(C) as admissions of a party's agent.  Its reasoning was that county election officials are independently elected officials, paid by and reporting to their respective county commissions.  Indeed, the court noted that "[t]he United States ha[d] directly sued the local LEAs in the past, and [thus] arguably views the LEAs, at least to some extent, as independent entities."  I thus agree with the Eighth Circuit's conclusion that, "Because this evidentiary question is certainly debatable, we cannot say the district court abused its considerable discretion."

Second, the court found that the survey responses did not qualify as adoptive admissions under Federal Rule of Evidence 801(d)(2)(B).  It found that in making this determination, it had to examine "the surrounding circumstances to see whether those circumstances indicate approval of the statement."  The court then noted that "Missouri merely passed the LEAs' survey responses along to the federal government, with no indication the state was adopting the truth of the responses."  Indeed, the Eighth Circuit noted that "Missouri even indicated additional time was needed, thus demonstrating a lack of certainty in the accuracy of the responses."  I thus again agree with the Eighth Circuit's conclusion that the trial court acted within its discretion in finding this Rule inapplicable.

Third, the Eighth Circuit found that the survey responses did not qualify as business records under Federal Rule of Evidence 803(6) and/or public records under Federal Rule of Evidence 803(8).  According to the court, the problem with these Rules is that both indicate that they are inapplicable if "the sources of information or other circumstances indicate lack of trustworthiness."  The court found that the survey results were indeed not trustworthy, noting: (1) that the information for the survey responses was hastily gathered, with Missouri requesting an extension of time, and (2) that declarations by numerous LEAs indicated the survey responses were inaccurate."  Again, I agree wit the Eighth Circuit that teh trial court did not abuse its discretion in finding this Rule inapplicable.

-CM

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