June 22, 2020

Via U.S. mail and email

Karen Brinson Bell

Executive Director, North Carolina State Board of Elections
P.O. Box 27255
Raleigh, NC 27611-7255
karen.bell@ncsbe.gov

RE: Compliance with Section 7 of the National Voter Registration Act

Dear Executive Director Bell:

We write on behalf of Democracy North Carolina, Action NC, as well persons

eligible to vote that these organizations represent, and others similarly situated, to notify
you that the State of North Carolina is not in compliance with Section 7 of the National
Voter Registration Act of 1993 (“NVRA”), 52 U.S.C. § 20506. Section 7 of the NVRA
requires States, including North Carolina, to provide individuals with a meaningful
opportunity to register to vote during public assistance applications, recertifications,
renewals, and changes of address.

Specifically, the North Carolina Department of Health and Human Services

(“DHHS”) fails to provide Medicaid recipients the voter registration services mandated
by the NVRA during the automated benefits renewal/recertification process known in
North Carolina as ex-parte MAGI recertification. Ex-parte MAGI recertification is
required by federal regulations, see 42 C.F.R. § 435.916 (2013), and state policy.1

1
Family and Children’s Medicaid Manual for the North Carolina Department of Health and
Human Services Medicaid Division of Health Benefits, MA 3421, attached hereto as Exhibit 1.

1
 The failure to provide any voter registration services during ex-parte MAGI
recertification has significant ramifications for North Carolina’s Medicaid recipients, as
the State appears to conduct at least 75% of its Medicaid recertifications using this
automated process.2 Recipients of Medicaid must have their benefits renewed once a
year,3 and as of February 2020, more 1.4 million North Carolina residents were enrolled
in Medicaid. 4 This means that hundreds of thousands of Medicaid clients who were
potentially eligible voters have been denied the NVRA-required opportunity to register to
vote as part of this recertification process and hundreds of thousands more will be denied
their right to register unless North Carolina incorporates voter registration into the ex-
parte MAGI recertification process. Within the last 120 days, a large number of
individuals throughout North Carolina went through this process, thus engaging a
transaction with DHHS where the NVRA required a voter registration opportunity but
none was provided.5

As North Carolina’s chief election official, you are responsible for the State’s
compliance with the NVRA. See N.C. Gen. Stat. § 163-82.2; Harkless v. Brunner, 545
F.3d 445, 450–53 (6th Cir. 2008); Action NC v. Strach, 216 F.Supp.3d 597, 624
(M.D.N.C. 2016). We urge you to take immediate steps, in conjunction with DHHS, to
bring North Carolina’s ex-parte MAGI recertification process into compliance with
Section 7 of the NVRA.

I. The Requirements of the Section 7 of the NVRA

Section 7 of the NVRA requires North Carolina to “designate as voter registration

agencies . . . all offices in the State that provide public assistance.” See 52 U.S.C. §
20506(a)(2)(A). Medicaid is among the, “public assistance,” programs that must provide
voter-registration services under Section 7. 6 In North Carolina, Medicaid and other
public assistance programs are administered by DHHS.

2
Tricia Brooks, et al., Kaiser Family Foundation, “Medicaid and CHIP Eligibility, Enrollment,
and Cost Sharing Policies as of January 2020: Findings from a 50-State Survey” at Table 10
(Mar. 2020), available at http://files.kff.org/attachment/Table-10-Medicaid-and-CHIP-Eligibility-
as-of-Jan-2020.pdf/.
3
See supra n.1 (noting there is a “12-month certification period”); see also 42 CFR §
435.916(a)(2).
4
Centers for Medicare & Medicaid Services, 2020 01 Preliminary applications, eligibility
determinations, and enrollment data, available at https://data.medicaid.gov/Enrollment/2020-01-
Preliminary-applications-eligibility-deter/7yxe-jcft/data.
5
Given the large number of Medicaid clients in North Carolina, more than a hundred thousand
individuals are having their benefits renewed in a typical month.
6
See, e.g., U.S. Department of Justice, The National Voter Registration Act of 1993 (NVRA):
Questions and Answers, Q13, http://www.justice.gov/crt/about/vot/nvra/nvra_faq.php (last visited
June 15, 2020).

2
 The NVRA mandates that public assistance offices provide voter registration
opportunities whenever an individual is engaging in a “covered transaction” (an
application, renewal, recertification, or change of address transaction). In order to fulfill
their voter registration obligations, each public assistance office must (i) distribute voter
registration application forms; (ii) assist applicants in completing the voter registration
forms, unless such assistance is refused by the applicant; and (iii) accept completed voter
registration application forms and forward them to the appropriate election official. See
52 U.S.C. § 20506(a)(4)(A). Moreover, each office must (i) inquire of the applicant, in
writing, whether he or she would like to register to vote or change his or her voter
registration address; 7 (ii) distribute a voter registration application form with each
covered transaction, unless the individual applicant or client affirmatively opts out of
voter registration by declining in writing to register to vote; (iii) inform the applicant, in
writing, that the decision to register or decline to register to vote will not affect the
amount of public assistance provided by the agency; 8 and (iv) provide assistance in
completing the voter registration forms to the same degree the agency provides assistance
in completing its own forms. See 52 U.S.C. § 20506(a)(6).

These voter registration services must be provided by public assistance agencies,

regardless of whether a covered transaction takes place in person, at an agency office, or
remotely via phone, mail, email, or internet. See, e.g., Ga. Conf. of the NAACP v. Kemp,
841 F. Supp. 2d 1320, 1331 (N.D. Ga. 2012) (voter registration must be provided during
remote transactions); Action NC v. Strach, 216 F. Supp. 3d 597, 635–36 (M.D.N.C.
2016)9; see also U.S. Department of Justice, The National Voter Registration Act of 1993
(NVRA): Questions and Answers, Q24.10

II. North Carolina’s Non-Compliance with Section 7 of the NVRA

The ex-parte MAGI recertification process is a procedure established by the

Affordable Care and Patient Protection Act (“ACA”) that allows DHHS to renew
Medicaid benefits automatically for certain clients using already available data, such as
IRS records. 42 C.F.R. § 435.916—titled “Periodic renewal of Medicaid eligibility”—
requires an agency to make a determination about an individual’s eligibility for Medicaid
renewal, “without requiring information from the individual if able to do so based on

7
The NVRA provides specific language that must be used to make this inquiry, known as the
Voter Preference Question. The NVRA mandates that individuals engaging in covered
transactions with public assistance offices must be provided a form that asks: “If you are not
registered to vote where you live now, would you like to apply to register to vote here today?”
See 52 U.S.C. § 20506(a)(6)(B)(i).
8
This statement is one of several statutory disclosures required by Section 7. See 52 U.S.C. §
20506(a)(6)(B)(iv)-(v).
9
In Action NC, “[t]he Court conclude[d] that Defendants . . . failed to demonstrate that there is
no statutory support for Plaintiffs' claim that Section 7 applies to transactions by mail, telephone
and online.” Action NC v. Strach, 216 F. Supp. 3d 597, 622 ((M.D.N.C. 2018).
10
See supra n.6.

3
reliable information contained in the individual’s account or other more current
information available to the agency,” such as records from the IRS. As part of this
process, DHHS must, “notify the individual . . . [o]f the eligibility determination, and
basis,” which usually occurs through a letter and/or email. See 42 C.F.R. §
435.916(a)(2)(i).11 This provides clients with the required notice about the outcome of
their renewal and informs them about the details of what information was used to make
their renewal. Id. § 435.916(a)(2). Clients are also required to immediately inform the
agency if any of that information is inaccurate. Id. § 435.916(a)(2)(ii). Therefore, the ex-
parte MAGI recertification process requires that DHHS notify Medicaid recipients when
it is able to automatically recertify benefits and provide these recipients with an
opportunity to correct any inaccurate information.

There is no dispute that North Carolina regularly employs the ex-parte MAGI
recertification process for the large number of Medicaid recipients in the State. Nor is
there any dispute that North Carolina has failed and continues to fail to provide any voter
registration services to individuals whose Medicaid benefits it renews through the
recertification process. While DHHS sends out the required notice of these renewals it
conducts through the ex-parte recertification process to clients, it does not provide clients
with a voter registration form or any information on voter registration, and it does not
conduct any follow-up with clients about voter registration.12

Furthermore, there is no question that these ex-parte MAGI recertifications are

covered by the NVRA. As noted above, any renewal or recertification of benefits
constitutes a, “covered transaction,” under the NVRA.13 Ex-parte MAGI recertifications
are carried out pursuant to 42 C.F.R. § 435.916(a)(2), which concerns the “[p]eriodic
renewal of Medicaid eligibility.” The text of the regulation unambiguously refers to a
Medicaid renewal process. The fact that the ex-parte renewal/recertification process has a
passive element to it has no bearing on whether the transaction is covered by the NVRA.
The NVRA requires that DHHS, “distribute [a voter registration application] with each
recertification, renewal, or change of address form relating to such service or assistance;”
it does not limit the applicability of this requirement to applications for renewal or

11
DHHS policy also requires caseworkers “send appropriate notice to the beneficiary.” See supra
n.1.
12
Counsel and parties to this notice letter recently engaged in litigation related to Section 7
compliance against the North Carolina State Board of Elections and DHHS. While that matter
was settled, the terms of the Settlement Agreement specifically noted that “[a]ny past or future
NVRA claims arising from or related to ex parte Medicaid renewal transactions are not included
in the Release provided here.” Action NC v. Strach, Case 1:15-cv-01063-LCB-JEP, Doc. 176
(M.D.N.C. July 2, 2018), see excerpt of Settlement Agreement and Court Order attached hereto
as Exhibit 2.
13
See 52 U.S.C. § 20506(a)(4), (a)(6)(A) (requiring agencies to distribute a voter registration
application “with each recertification, renewal, or change of address form,” as well as provide
any assistance requested and accepted and transmit completed forms); see also 42 C.F.R. §
431.307 (regulating state agencies’ provision of Medicaid and requiring that “[u]nder NVRA, the
agency must distribute voter information and registration materials as specified in NVRA”).

4
recertification that public assistance clients must themselves complete and submit. See
52 U.S.C. § 20506(a)(6)(A). The notification form that DHHS is required to send as part
of the ex-parte MAGI recertification process unambiguously constitutes a “renewal . . .
form relating to” Medicaid assistance, covered by Section 7 of the NVRA.

DHHS has been aware that its ex-parte MAGI recertification process violates the
NVRA for many years but has, thus far, inexplicably refused to correct the problem.
Since the ACA was enacted, several of the organizations serving as counsel here have
worked with many states to address how the requirements of Section 7 intersect with the
operation of Medicaid processes created by the ACA. The other times we have raised
this issue, states—including Arizona, Kansas, Massachusetts, Ohio, and Pennsylvania—
have agreed that these transactions are recertifications covered by the NVRA. Counsel
has made the North Carolina State Board of Elections (“SBE”) and DHHS aware that
North Carolina is an outlier in not agreeing that compliance with the NVRA is required
during ex-parte MAGI recertifications.

III. Remedy

It is puzzling why SBE and DHHS continue to violate the NVRA in this context
when the remedy is simple. As noted, the NVRA requires that during all covered
transactions, a public assistance agency: distribute voter registration application forms;
assist applicants in completing the voter registration forms, unless such assistance is
refused by the applicant; and provide certain disclosures. 52 U.S.C. § 20506(a)(6).
These mandated steps can be achieved if DHHS were to include a blank, coded state
voter registration form and a brief cover letter with the notice clients are sent when an ex-
parte MAGI recertification is completed. DHHS is already sending a notice to these
individuals, so this step would simply involve adding several additional pieces of paper to
that mailing. Also, public assistance agencies in North Carolina are already regularly
sending similar voter registration materials to some of their clients through the mail, so
there is already an appropriate cover letter that could be used for this purpose. A copy of
that letter is attached here as Exhibit 3.

In addition to implementing this change immediately for all future ex-parte

recertifications, DHHS and the SBE should also send a remedial mailing. As a result of
the ongoing NVRA violation, hundreds of thousands Medicaid clients in North Carolina
have been denied the opportunity to register to vote required by the NVRA. And given
the close proximity to the November general election, this violation has occurred at a
critical time in the election cycle and could potentially deprive North Carolinians of their
fundamental right to vote. A remedial mailing is the only way to ensure that the impact
of this ongoing violation is mitigated, and is essential to ensure North Carolina Medicaid
clients have the opportunity to register that the NVRA requires they receive.14

14
Public assistance agencies in other states have sent similar remedial mailings to provide clients
with a voter registration opportunity that was otherwise missed. For example, in August 2018,
Arizona public assistance agencies sent a one-time remedial mailing to all of their clients to
remedy ongoing NVRA compliance issues. A copy of the interim agreement memorializing the

5
 DHHS and SBE have a minimum obligation to execute the following remedial
mailing:

§ Recipients: All U.S citizen adult North Carolina Medicaid clients whose
benefits were renewed through the ex-parte MAGI recertification process
between June 2019 and the date when DHHS implements a change to the
policy going forward.
§ Timing: Mailings should be sent in sufficient time for the recipients to register
in advance of the October 9, 2020 voter registration deadline. We recommend
a mailing date of no later than September 1, 2020.
§ Content: A State of North Carolina voter registration application and the cover
letter.

IV. Conclusion

Please let us know immediately if any information we have presented in this letter
is not correct, as we send this letter to serve as notice of the NVRA violation by SBE and
DHHS pursuant to 52 U.S.C. § 20510(b).

North Carolina must promptly guarantee that Medicaid recipients whose benefits
are—or have been—renewed through the ex-parte MAGI recertification process are
provided with the voter registration services demanded by the NVRA. We would be
pleased to work cooperatively with the SBE and DHHS to develop a plan to address this
violation of federal law. In the absence of such a plan, we will have no alternative but to
initiate litigation after the conclusion of the statutory 20-day waiting period.

Please advise us promptly of the steps you intend to take to remedy North
Carolina’s violation of Section 7 of the NVRA.

Sincerely,

By: /s/ Sarah Brannon

Sarah Brannon*
Managing Attorney for the Voting Rights Project
American Civil Liberties Union
915 15th Street, NW

details of that mailing is attached hereto as Exhibit 4. Such mailings have also been ordered in
cases where NVRA-designated voter registration agencies have failed to provide required
registration services. See, e.g., League of Women Voters of Missouri v. Ashcroft, 336 F. Supp.3d
998, 1006 (W.D. MO, Sept. 2018) (ordering that as a remedy for ongoing violations of Section 5
of the NVRA a mailing with a voter registration application be sent to all potential impacted
individuals).

6
Washington, DC 20005-2313
202-675-2337 (office)
202-210-7287 (cell)
sbrannon@aclu.org
* Not admitted in the District of Columbia; practice limited pursuant to D.C. App. R

___Naila S. Awan________
Naila S. Awan
Dēmos
80 Broad Street, 4th Floor
New York, NY 10004
212-485-6065
nawan@demos.org

___Allison Riggs____________
Allison Riggs
Southern Coalition for Social Justice
1415 West Highway 54, Suite 101
Durham, NC 27707
Allison@southerncoalition.org

____Dorian L. Spence______________
Dorian L. Spence
Lawyers’ Committee for Civil Rights Under Law
1500 K Street NW, Suite 900
Washington, D.C., 20005
Dspence@lawyerscommittee.org

____Jaclyn Maffetore______________
Jaclyn Maffetore
Staff Attorney
ACLU of North Carolina
Legal Foundation, Inc.
PO Box 28004, Raleigh NC 27611
(919) 666-7032
jmaffetore@acluofnc.org

cc via email:

Mandy Cohen
Secretary
North Carolina Department of Health and Human Services
2001 Mail Service Center
Raleigh, NC 27699-200o
mandy.cohen@dhhs.nc.gov

Paul M. Cox

7
 Special Deputy Attorney General
Phone: (919)716-6932
pcox@ncdoj.gov
114 W. Edenton St., Raleigh, NC 27603

Michael T. Wood
Special Deputy Attorney General
Special Litigation Section
919-716-0186
mwood@ncdoj.gov
P. O. Box 629, Raleigh, NC 27602-0629
ncdoj.gov

8
EXHIBIT 1
North Carolina Department of Health and Human Services
North Carolina Medicaid
Division of Health Benefits
FAMILY AND CHILDREN’S MEDICAID MANUAL MA-3421

MAGI RECERTIFICATION
REVISED 12/05/18 – CHANGE NO. 06-18

I. The continuing eligibility of MAGI Medicaid beneficiaries must be determined prior

to the end of the certification period.

II. Begin the recertification process at the beginning of the 10th month of the current
12-month certification period or 2 months prior to last month of the MPW
certification period.

III. Ex-parte process means determining eligibility based on available records, prior to
contacting or requesting information from the client.

A. All recertifications must be completed using electronic data sources and

available agency records first to determine continued eligibility.

B. The caseworker is required to:

1. Conduct all OVS and other electronic matches

2. Check other available program records– FNS, WFFA, etc.

3. Contact beneficiary only if continuing eligibility cannot be determined by the

available information

IV. Continued Ongoing Eligibility Determined

When ongoing eligibility can be determined using available information and there is no
indication of a change, authorize the case and send appropriate notice to the beneficiary.

V. Continued Ongoing Eligibility Not Determined

When continued eligibility cannot be determined or eligibility will change to a lesser

benefit or terminate:

A. Send the NCFAST-20020, Medical Assistance Renewal Notice

1. The NCFAST-20020 is a prepopulated renewal form for the beneficiary to

validate that current information remains the same or indicate changes and
provide self-attestation of eligibility requirements, including income.

2. Allow the beneficiary 30 calendar days to return the NCFAST-

20020. Aggressive processing is encouraged throughout the entire ex-parte
recertification process.
 3. The DMA-5097, Request for Information, may be issued with the NCFAST-
20020 when it is known what information/verification is needed, allowing the
30 days for return.

4. The DSS 8113, Wage Verification Form may be sent to the employer when it
is known that the information is not available to the local agency at the same
time a NCFAST-20020 is sent.

B. Requested information may be provided by:

1. Telephone
2. Mail
3. In person
4. Electronic/fax
C. Once the needed information/verification is received:

1. Complete the recertification, or

2. If additional information is required, issue a DMA-5097, Request for

Information, allowing the beneficiary 12 calendar days to return the
information.

D. If the beneficiary no longer meets the eligibility criteria under the current
program category, evaluate eligibility in all other Medicaid/ NCHC programs,
including medically needy.

E. If the beneficiary is eligible for NC Health Choice, do not re-enroll the case when
a fee is required.

1. Send DMA-5059, NCHC Enrollment Fee Notice, instructing the beneficiary

to pay the fee within 12 calendar days of the date of the notice.

2. If the fee is paid, re-enroll for ongoing NC Health Choice eligibility.

3. If the fee is not paid within 12 calendar days, do not update the certification
period. Send a timely notice proposing termination.

4. If the fee is paid and the case terminated because the 12th calendar day falls
after “pull check” refer to reopen procedures.

5. If a MIC child is being added to an active NCHC case during the NCHC
certification period, do not charge an enrollment fee for the child being added.
Refer to MA-3306, Household Composition.
VI. RECERTIFICATION NOT COMPLETED TIMELY

If the recertification is not completed by the end of the certification period, extend the
certification one month at a time to allow for timely notice requirements.

A. Do not authorize case for an additional month if the case is in deductible status
at the end of the certification period.

B. If the redetermination is completed after extending the certification period for a

month and case remains eligible, use the one-month certification period as the
first month of the new certification period.

1. Use the electronic match sources from the original certification period if the
beneficiary remains eligible, or

2. If the electronic match sources from the original certification period makes the
beneficiary ineligible, use the most current electronic match sources to
determine eligibility.

C. A one-month certification period must be authorized in NC Fast if the agency

fails to completed the redetermination prior to end of certification period and/or
fails to send timely notice allowing termination to be keyed prior to pull-check in
the last month of the certification period.

VII. INFORMATION NOT RECEIVED

If the NCFAST-20020 or information needed is not returned or provided at the end of

the 30 days, send a timely notice to terminate the case.

VIII. REOPEN TERMINTED CASE

If a beneficiary provides the NCFAST- 20020 and/or the necessary information for
recertification within 90 calendar days from termination effective date:

• Determine eligibility as if the information was received timely, from the first
day of the month following the termination date.
EXHIBIT 2
 SETTLEMENT AGREEMENT

COMMON TERMS

I. INTRODUCTION

WHEREAS, on December 15, 2015, Plaintiffs Action NC, Democracy North Carolina,
North Carolina A. Philip Randolph Institute, Sherry Denise Holverson, Isabel Najera and
Alexandria Marie Lane (collectively, “Plaintiffs”), through their undersigned counsel, brought
Civil Action No. 15-cv-1063 in the United States District Court for the Middle District of
North Carolina against Kim Westbrook Strach, in her official capacity as Executive Director of
the North Carolina State Board of Elections; Rick Brajer, in his official capacity as Secretary of
the North Carolina Department of Health and Human Services (succeeded by Mandy K. Cohen);
Kelly Thomas, in his official capacity as Commissioner of the North Carolina Division of Motor
Vehicles (succeeded by Torre J. Jessup); and Nick Tennyson, in his official capacity as Secretary
of the North Carolina Department of Transportation (succeeded by James Trogdon III)
(collectively, “Defendants”), alleging violations of Section 5 and Section 7 of the National Voter
Registration Act of 1993 (“NVRA”), 52 U.S.C. § 20501, et seq.

WHEREAS, Plaintiffs allege systemic past and ongoing violations of Section 5 and
Section 7 of the NVRA and have sought declaratory and injunctive relief from the Court.

WHEREAS, Defendants have denied each and every one of Plaintiffs’ allegations of
unlawful conduct or wrongdoing, denied all liability, and have asserted a number of defenses to
Plaintiffs’ claims. Defendants specifically deny: (1) any and all alleged violations of Section 5
or Section 7 or other provisions of the NVRA; (2) that the NVRA applies to remote transactions,
including transactions conducted through state agency website online portals; and (3) that
Plaintiffs have asserted viable claims for relief or are entitled to relief as demanded in this action.
The state officials for the agencies sued in this action acknowledge the importance of voter
registration in the State of North Carolina and said officials are committed to robust
implementation of the NVRA.

WHEREAS, the Plaintiffs and Defendants (together, “Parties”) now desire to resolve this
action without further litigation and expense and to avoid the further delay, inconvenience,
burden and uncertainty of continued litigation of this matter (including appeals from any
verdict).

WHEREAS, Defendants, in order to settle this litigation, have agreed to implement

settlement terms that will achieve for the State of North Carolina (and thus for the people of the
State of North Carolina) the advancement of voter registration processes beyond those processes
that the Defendants contend are required by the NVRA;

WHEREAS, the Parties have agreed to settle this lawsuit on terms set forth in this
Settlement Agreement (“Agreement”). By entering into this Agreement, Defendants do not

Case 1:15-cv-01063-LCB-JEP Document 175-2 Filed 06/25/18 Page 2 of 93

admit any liability or any violation of the NVRA or any other law, and any actions taken
hereunder are not intended to be and shall not in any event be construed as, or deemed to be, an
admission or concession or evidence of any liability or any wrongdoing whatsoever on the part
of the Defendants. By entering into this Agreement, Plaintiffs do not admit or concede to any
defenses or legal positions by Defendants.

NOW THEREFORE, the Parties hereby agree as follows:

II. TERMS:

The Parties agree that the terms and provisions in Schedules I and II attached hereto are
incorporated herein and are part of this Settlement Agreement. Schedule I pertains to the
North Carolina Division of Motor Vehicles (“DMV”), and Schedule II pertains to the
Department of Health and Human Services (“DHHS”).

III. IMPLEMENTATION OF RELIEF AND DISMISSAL OF ACTION

A. Defendants hereby agree to implement the software changes, practices and

procedures set forth in Schedules I and II within sixty (60) calendar days after
execution of the Agreement, except as otherwise indicated.

B. One of the Defendants named in this matter is Kim Westbrook Strach, in her
official capacity as Executive Director of the North Carolina State Board of
Elections. Now that entity has become the North Carolina Bipartisan State Board
of Elections & Ethics Enforcement (“SBE”). Director Strach agrees that the Office
of the North Carolina Bipartisan State Board of Elections & Ethics Enforcement
shall ensure the compliance of any of its employees, agents, representatives,
successors and assigns of the Executive Director of the SBE, acting in their official
capacities, with the terms of this Agreement as to the obligations of the
SBE. Additionally, each Defendant, including any legal successor(s) or assign(s),
acting in their official capacities, is bound by the terms of this Agreement.

C. Defendants’ agreement to implement these software changes, procedures and

practices is not and shall not be interpreted as an acknowledgment that any of these
particular procedures and practices are not already in place. Defendants’
agreement to the steps outlined herein is not and shall not be interpreted as an
acknowledgment that these steps are legally required by the NVRA.

D. The Parties agree that as far as they are aware the steps outlined in this Agreement
do not violate any applicable state or federal laws.

E. Effective upon execution of this Agreement by all Parties, the Parties agree to
notify the Court and request that all pending deadlines and hearing dates be
vacated and this action be dismissed with prejudice.

-2-

Case 1:15-cv-01063-LCB-JEP Document 175-2 Filed 06/25/18 Page 3 of 93

 F. Within five (5) business days of the effective date of this Agreement, the Parties
will file a Proposed Order of Dismissal with prejudice, in the form attached as
Schedule III to this Agreement (“[Proposed] Order of Dismissal”).

G. In consideration for the agreements and representations herein, Plaintiffs fully,

finally and forever release, relinquish, discharge and waive any and all claims,
demands, actions, damages, costs and expenses against each Defendant (including
each Defendant’s officials, employees, agents, representatives, successors and
assigns) that are asserted or could have been asserted based upon the factual
allegations contained in the pleadings in this Action. Nothing herein shall limit the
Parties’ rights or remedies under the Dispute Resolution Procedures described
herein. For the purpose of clarity, nothing in this Agreement, Release or Order of
Final Judgment shall be deemed to release, waive or adjudicate any claim arising
after the execution of the Agreement.

H. Notwithstanding the Release contained herein, the Parties agree that this
Agreement does not resolve the dispute between the Parties as to whether the
NVRA applies to ex parte Medicaid renewal transactions and, if so, the
responsibilities of DHHS and Director Strach allegedly relating thereto. Any past
or future NVRA claims arising from or related to ex parte Medicaid renewal
transactions are not included in the Release provided here.

IV. ATTORNEYS’ FEES AND EXPENSES

A. Defendants agree to pay to Plaintiffs the total amount of $490,000.00 to

compromise and settle all of Plaintiffs’ claims, including Plaintiffs’ claims for
attorneys’ fees and litigation expenses and costs (including, without limitation,
expert fees and costs). The payment shall be made payable to Morrison & Foerster
LLP. Plaintiffs agree to promptly provide Defendants with taxpayer identification
numbers and/or completed IRS Forms W9 upon request.

B. This Agreement is not an admission or evidence that any Defendant is liable to

Plaintiffs for the payment of attorneys’ fees and litigation expenses or costs in, or
related to, this Action, but rather represents only the compromise and settlement of
a disputed claim. Neither party shall be considered to be or shall claim to be a
prevailing party under the NVRA or other law.

C. The compromise and settlement of Plaintiffs’ claim for attorneys’ fees and
litigation expenses and costs against Defendants shall not establish, or be evidence
of: (1) a “reasonable” hourly rate for Plaintiffs’ counsel or any other counsel;
(2) the “reasonableness” of any legal services or activities performed by Plaintiffs’
counsel in this or any other action; or (3) the “reasonableness” of any item of
litigation expenses or costs in this or any other action.

D. The Plaintiffs’ Counsel agree to make available within fifteen (15) days of the
Order of Dismissal the necessary documentation of expenses and itemized attorney
time to assist with payment. If full payment from Defendants to Plaintiffs is not

-3-

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Case 1:15-cv-01063-LCB-JEP Document 175-2 Filed 06/25/18 Page 11 of 93
 Schedule II

-38-

Case 1:15-cv-01063-LCB-JEP Document 175-2 Filed 06/25/18 Page 47 of 93

 SCHEDULE II – NVRA SECTION 7 COMPLIANCE

I. DEFINITIONS

The following definitions apply for the limited purposes of this Agreement only and for no other
purpose unrelated to this Agreement. Neither Plaintiffs nor Defendants admit or agree that these
definitions constitute full, complete or accurate statements of applicable law under the National
Voter Registration Act of 1993 (“NVRA”), its regulations or other law. Defendants reserve all of
their legal and equitable rights under the NVRA and any other applicable law, notwithstanding
this Agreement.

As used herein for purposes of Schedule II only:

A. “Agreement” shall refer to this Settlement Agreement, including the Common

Terms and Section II – NVRA Section 7 Compliance.

B. “Covered Transaction” means any transaction identified in Section 7 of the

NVRA, 52 U.S.C. § 20506(a)(6)(A), i.e., applications, recertifications, renewals
and changes of address. These shall include transactions conducted with respect
to the SNAP program, described in North Carolina as the “FNS” program, the
TANF program, described in North Carolina as the “Work First” program, the
CHIP program, described in North Carolina as the “Health Choice” program,
Medicaid and WIC.

C. “Days” means calendar days. If an action must take place within a certain
number of days and the deadline would fall on a weekend or holiday, it is
sufficient to take the required action on the first business day after the weekend or
holiday.

D. “DHHS” means the North Carolina Department of Health and Human Services,
and includes, without limitation, its authorized agents, officers and employees.

E. “Director” means the Executive Director of the SBE acting as the Chief Election
Official for North Carolina.

F. “County DSS Office” means any county Department of Social Services office
within the state of North Carolina that provides Public Assistance Benefits as
defined herein through Covered Transactions, including County DSS Office
employees and agents. This shall include any such county office even if its formal
name does not include the term “Department of Social Services.”

G. “Local WIC Agency” shall mean any local office providing Special Supplemental
Nutrition Program for Women, Infants, and Children (“WIC”) services within the
State of North Carolina that provides WIC Program Benefits as defined herein
through Covered Transactions, including the employees and agents of those
offices. This shall include any such office even if its formal name does not include

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 the term “WIC.” There are currently eighty-five (85) such local WIC offices in
North Carolina. There is not a WIC Office in every North Carolina county.

H. “In-Person Transaction” means a Covered Transaction that takes place at a

County DSS Office or Local WIC Agency.

I. “County Board(s) of Election” or “CBE” means all county boards of elections,

including the officers, agents, employees and representatives of the same.

J. “Laminated Form” means a laminated form containing the Voter Preference

Question and the statutory disclosures required by 52 U.S.C. § 20506(a)(6)(B) for
use at County DSS Offices during In-Person Transactions.

K. “NVRA” means the National Voter Registration Act of 1993, 52 U.S.C. § 20501,
et seq.

L. “Public Assistance Benefits” means those benefits that are subject to Section 7 of
the NVRA which are administered by DHHS, including, but not limited to: the
Supplemental Nutrition Assistance Program (SNAP, formerly the food-stamp
program), the Special Supplemental Nutrition Program for Women, Infants and
Children (WIC), the Temporary Assistance for Needy Families (TANF) program
(formerly the Aid to Families with Dependent Children or AFDC program), the
Medicaid program and the State Children’s Health Insurance Program (CHIP).

M. “Public Assistance Client” or “Client” means each person who engaged in a

Section 7 Covered Transaction, or who will do so in the future.

N. “Remote Transaction” means any interaction wherein a Client applies for Public
Assistance Benefits, renews or recertifies Public Assistance Benefits or submits a
change of address for Public Assistance Benefits via the telephone, facsimile,
mail or electronically.

O. “Ex Parte Medicaid Renewal” shall mean the renewals of Medicaid benefits that
are conducted through an automatic review of Clients’ eligibility and
communicated to Clients through a confirmation letter.

P. “SBE” shall mean the North Carolina State Board of Elections, which is now
known as the North Carolina Bipartisan State Board of Election and Ethics
Enforcement, and any officials, employees, agents, representatives, successors
and assigns of the North Carolina State Board of Elections.

Q. “SBE NVRA Coordinator” means the person designated by the Director as

described in Schedule I, Section IV to perform the duties as described herein.

R. “Section 7” means Section 7 of the NVRA, 52 U.S.C. § 20506.

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 about training, Local NVRA Point Persons, and other required steps
identified in this Agreement as being able to be provided through these
Reports.

VIII. ADDITIONAL MEASURES:

The following provisions in this Section VIII will only apply to issues that both took place after
the date of dismissal and were identified after the date of dismissal.

A. Individual Corrective Actions

1. If an SBE or County Board of Elections employee, County DSS Office or

Local WIC Agency employee or Third-Party Contractor determines that
an identifiable Client did not receive a Voter Registration Form as
required under Section 7 of the NVRA, or this Agreement, the employee
shall notify the Local NVRA Point Person in the relevant office no later
than five (5) business days from the date of the discovery. Medicaid ex
parte renewals and recertifications are expressly excluded from this
additional measure.

2. Within fourteen (14) days of receiving such notice, the SBE NVRA
Coordinator shall direct the Local NVRA Point Person to send a remedial
mailing to the Client and enclose a Voter Registration Form and
explanatory notice. The explanatory notice shall advise the Client that
(i) he/she is receiving the mailing because (s)he may not have been offered
the opportunity to apply to register to vote, (ii) the mailing does not affect
the individual’s registration status if the individual is already registered to
vote at the individual’s current address, (iii) receipt of the mailing does not
indicate any information about the individual’s eligibility to register to
vote, (iv) it provides a clear explanation of the eligibility rules for
registering to vote and (v) assistance in completing the form is available
from the SBE or the Client’s Local WIC Agency or County DSS Office.
A copy of the letter shall be maintained consistent with the relevant
office’s document retention polices.

B. DHHS shall forward any complaints it receives made by the public regarding the
provision of voter registration by any Local WIC Agency or County DSS Office
to the NVRA Point Person for that Local WIC Agency or County DSS Office, if
known, and also forward it to the SBE NVRA Coordinator, subject to applicable
confidentiality laws.

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EXHIBIT 3
P.O. Box 27255 elections.sboe 919) 814-0700 or (919) 715-0135
Raleigh, NC @ncsbe.gov (866) 522-4723 Fax
27611-7255 E-mail Phone
Mailing Address

Notice of Voter Registration Services

You are receiving this letter because of your recent interaction with a county DSS office. The
National Voter Registration Act requires the county DSS office to provide the client with an
opportunity to register to vote.
During your interaction with the county DSS office, you may have indicated that you would like
to register to vote at the address at which you currently live. Enclosed is a voter registration
application. Once completed, you may send the form directly to the State Board of Elections at
the address provided on the back of the voter registration form or you may return it to your local
county DSS office.
Only U.S. citizens are eligible to register to vote. You must meet all the qualifications listed at
the top of the enclosed voter registration application and in the signature block of the application.
If you do not meet these qualifications, do not return the enclosed application.

If you wish to be registered to vote, please complete and sign the enclosed form confirming,
under penalty of perjury, that you meet the qualifications to vote and that the information
on the application is correct.
Please contact the State Board of Elections at 1-866-522-4723 if you desire assistance in
completing the application or if you have questions concerning this notice.

If you would prefer a copy of the enclosed voter registration form in Spanish, please visit
https://www.ncsbe.gov/NVRA/01. You may also call 1-866-522-4723.

Si desea una copia del formulario de inscripción de votante en español, por favor visite
https://www.ncsbe.gov/NVRA/01 o también puede llamar al 1-866-522-4723.

NCSBOE 2019.03
EXHIBIT 4
Exhibit A
 ARIZONA DEPARTMENT OF ECONOMIC SECURITY (DES)

ARIZONA HEALTH CARE COST CONTAINMENT SYSTEM (AHCCCS)

<<First Name>><<Last Name>>

<<Address 1>>
<<Address 2>>
<<City>><<State>><<ZIP>>

Information About Registering to Vote

We are sending you the attached mail-in voter registration form to ensure that you receive an
opportunity to register to vote and/or ensure that the State has your current voting address. You are
receiving this notice because you recently interacted with a state agency such as the Department of
Economic Security (DES), Arizona Health Care Cost Containment System (AHCCCS), and/or the
Health-e-Arizona Plus web portal.

If you are not registered to vote where you live now, and you want to vote in the upcoming
federal election on November 6, 2018, you must return or mail this application to one of the
locations described below or complete the online registration by October 9, 2018.

If you want to register to vote or update your voter registration address, please complete the enclosed
Voter Registration Application and put it in the mail. After you have registered to vote you will receive
a voter registration card in the mail within 4-6 weeks.

Completed voter registration applications can be returned:

By mailing to: In person:
• Office of the Secretary of State • By taking it to your local DES or
Elections Division AHCCCS office.
1700 W Washington St Fl 7
Phoenix AZ 85007-2808
• The County Recorder for the County where you live.
The addresses are listed on the back of the enclosed
voter registration form.
If you have an Arizona driver’s license or State ID card issued since October 1, 1996 you can also
register to vote on the internet on ADOT’s Service Arizona website:
https://servicearizona.com/voterRegistration.

Please carefully read the instructions about registering to vote, eligibility to register to vote and proof
of citizenship requirements.

If you are already registered to vote at your current address, you do not need to re-register to vote.
You can check your voter registration at: https://voter.azsos.gov/VoterView/RegistrantSearch.do.

Applying to register or declining to register to vote will not affect the amount of assistance that you will
be provided, or your eligibility. If you would like help filling out the voter registration form, need more
voter registration forms, or have any questions, you can call 1-877-THE VOTE (843-8683).