June 19, 2018

Tenth Circuit: Applicant for Public Assistance Who Does Not Indicate Intent to Receive or Not to Receive Voter Registration Form Must Be Provided One under NVRA

The Tenth Circuit Court of Appeals published its opinion in Valdez v. Duran on Tuesday, February 21, 2012.

The Tenth Circuit affirmed the district court’s decision. New Mexico’s Human Services Department (HSD) policy, which it believed was compliant with Section 7 of the National Voter Registration Act (NVRA), “was to provide a benefits applicant with a voter registration application form only if he or she checked ‘YES’ on the declination provision or verbally indicated that he or she would like to register to vote. As a result, HSD did not provide voter registration application forms to benefits applicants who left the declination provision blank and who did not otherwise respond ‘yes’ if a verbal inquiry regarding voter registration was made by an HSD employee.” Generally speaking, the NVRA “requires state public assistance offices to be designated as voter registration agencies and, in turn, to distribute with each application for public assistance a mail voter registration application form, unless the applicant, in writing, declines to register to vote.” Respondents allege that the policy of HSD violated the NVRA by not distributing the voter registration form to those who did not check either box. The district court agreed.

Petitioners argue that the district court misconstrued the provisions of the NVRA and that Respondents’ “counsel should be estopped from taking a position before the district court in this case that is inconsistent with the position they took before a federal district court” in a similar case. The Court disagreed.

“If an applicant is passive, i.e., does not check either the ‘YES’ or ‘NO’ box on the declination form and thereby indicate his or her intent in writing, HSD must . . . still provide him or her with a voter registration form, but is relieved from providing the applicant with assistance in completing that form. On the other hand, if an applicant checks the ‘NO’ box on the information form, he or she would be deemed to have declined, in writing, the opportunity to receive a voter registration form, and HSD would thus be relieved . . . from providing the applicant with a voter registration form.” The Court also found that “[j]udicial estoppel does not bind counsel, when representing a variety of parties, to always take the same position on a question.”

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