Case 1:12-cv CKK-BMK-JDB Document 245 Filed 08/27/12 Page 1 of 7 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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1 Case 1:12-cv CKK-BMK-JDB Document 245 Filed 08/27/12 Page 1 of 7 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STATE OF SOUTH CAROLINA, v. Plaintiff, UNITED STATES OF AMERICA and ERIC H. HOLDER, JR., in his official capacity as Attorney General, Case No. 1:12-cv-203 (CKK-BMK-JDB) Defendants, and JAMES DUBOSE, et al., Defendant-Intervenors. SOUTH CAROLINA S SURREPLY IN OPPOSITION TO INTERVENORS REQUEST FOR JUDICIAL NOTICE AS TO OTHER CASES AND OTHER LAWS On August 24, 2012, this Court ordered Intervenors to set forth the exact purpose for which they ask the Court to take judicial notice of the facts listed in their request. Doc. 239 at 1. Intervenors response to that order makes plain that they are asking this Court to apply a distorted and sweeping version of judicial notice unsupported by law. Intervenors ask this Court to adopt facts found in other cases (ranging from current race-related employment trends to issues of racial inequality in South Carolina s school system) as findings of fact in this case. See Reply Memorandum in Support of Denfendant-Intervenors Request for Judicial Notice as to Judicial and Legislative Findings of Ongoing Racial Discrimination in Voting in South Carolina, Doc. 236 at 2 ( Intervenors request that this Court, by taking judicial notice, enter the Cases identified factual findings as evidence in this case and, subject to evidence to the contrary that the State may submit, adopt the evidence as findings of fact. ). That request is improper and

2 Case 1:12-cv CKK-BMK-JDB Document 245 Filed 08/27/12 Page 2 of 7 should be denied. See South Carolina s Opposition to Intervenors Request for Judicial Notice as to Other Cases and Other Laws (Doc. 228). Intervenors simply misunderstand what sorts of facts can be judicially noticed and when such notice is appropriate. As a general rule, [c]ourts take judicial notice of matters of common knowledge, Ohio Bell Tel. Co. v. Pub. Util. Comm n of Ohio, 301 U.S. 292, 301 (1937) facts that are straightforward and easy to ascertain, Weinstein v. Islamic Republic of Iran, 175 F. Supp. 2d 13, 16 (D.D.C. 2001). See Hardy v. Johns-Manville Sales Corp., 681 F.2d 334, 347 (5th Cir. 1982) (judicial notice applies only to self-evident truths that no reasonable person could question, truisms that approach platitudes or banalities ). The many and wide-ranging facts that Intervenors ask this Court to notice do not fall into that category. See, e.g., United States v. Southard, 700 F.2d 1, (1st Cir. 1983) (taking notice that the driving time from New Haven to Rhode Island is more than 15 minutes); Eden Toys, Inc. v. Marshall Field & Co., 675 F.2d 498, 500 n.1 (2d Cir. 1982) ( The traditional features of a snowman are known generally and thus appropriate for judicial notice. ); Smith v. Pro Football, Inc., 593 F.2d 1173, 1213 n.71 (D.C. Cir. 1978) (taking notice that Jack Snow was drafted in the first round by the Minnesota Vikings). Intervenors appear to recognize as much. In an effort to address the mismatch between their request and what accepted judicial notice doctrine allows, Intervenors state that South Carolina can submit evidence attempting to counter the facts that they want judicially noticed. See Doc. 236 at 2 ( Intervenors request that this Court, by taking judicial notice, enter the Cases identified factual findings as evidence in this case and, subject to evidence to the contrary that the State may submit, adopt the evidence as findings of fact. ) (emphasis added); id. ( importing the identified findings into the record as evidence will not prevent South Carolina from 2

3 Case 1:12-cv CKK-BMK-JDB Document 245 Filed 08/27/12 Page 3 of 7 submitting evidence to dispute such facts ); id. at 5 ( The State may offer countervailing evidence of these findings as well. ). But that contention only underscores the inappropriateness of noticing the facts listed in Intervenors motion. Only facts that are not subject to reasonable dispute may be noticed. Fed. R. Evid. 201(b); Christopher B. Mueller & Laird C. Kirkpatrick, Evidence 76 (3d ed. 2003) (Rule 201(b) s not subject to reasonable dispute requirement is a stringent standard that significantly limits the facts subject to notice. ). That Intervenors offer South Carolina the opportunity to rebut their proposed facts all but admits that those facts do not meet this requirement. 1 Intervenors attempts to overcome these fatal deficiencies are unavailing. For example, Intervenors rely heavily on cases taking judicial notice of various facts in the Foreign Sovereign Immunities Act (FSIA) context. Those cases, however, provide no support for Intervenors overly broad request for judicial notice in this case. To be sure, [c]ourts in this District have... frequently taken judicial notice of earlier, related [FSIA] proceedings. Rimkus v. Islamic Republic of Iran, 750 F. Supp. 2d 163, 171 (D.D.C. 2010). But that is due to two unique facts: (1) the multiplicity of FSIA-related litigation in this jurisdiction and (2) statutory provisions in FSIA making clear that the statute did not intend that plaintiffs would be required to re-litigate key facts in related cases arising out of the same terrorist attack. Id. at 172; see Harrison v. Republic of Sudan, 2012 WL , at * 4 (D.D.C. Mar. 30, 2012). This Voting Rights Act case lacks those attributes. Intervenors attempts to rely on non-fsia cases fare no better. This is not a case where the record from another proceeding is central to the case s disposition, see Doc. 236 at 3 (citing Feld Entertainment, Inc. v. ASPCA, 2012 WL , at *1 n.2 (D.D.C. Jul. 9, 2012)), 1 Intervenors contention that South Carolina may rebut the facts that they seek to have noticed is fundamentally flawed for an additional reason: it is far too late in the game for South Carolina to collect the evidence necessary to rebut the facts that Intervenors want noticed. 3

4 Case 1:12-cv CKK-BMK-JDB Document 245 Filed 08/27/12 Page 4 of 7 where there is a question of res judicata, see id. (citing Jenson v. Huerta, 828 F. Supp. 2d 174, 179 (D.D.C. 2011)), or where there are ongoing proceedings involving the same facts and parties, see id. (citing Dupree v. Jefferson, 666 F.2d 606, 608 n.1 (D.C. Cir. 1981)). Nor is it a case where one side failed to contest whether taking judicial notice is appropriate. See id. (citing Covad Communications Co. v, Bell Atlantic Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005)). This is not to say that courts can never take judicial notice of past discrimination in a voting rights case outside the circumstances just described. As Intervenors point out, courts have done so. But those courts have taken notice of a few discrete facts, not the panoply of facts that Intervenors ask this Court to notice. For instance, in Gunn v. Chicksaw County, Mississippi, 166 F.3d 341, 1998 WL , at *4 (5th Cir. 1998), the court took judicial notice of Mississippi s and Chicksaw County s history of discrimination in the area of voting. And in Johnson v. Mortham, 926 F. Supp. 1460, (N.D. Fla. 1996), the court took notice of Florida s past history of discrimination. See also League of United lat.-am. Citizens v. Clements, 986 F.2d 728, 781 (5th Cir. 1993) (taking notice of a history of discrimination in Dallas); Smith v. Clinton, 687 F. Supp. 1310, 1317 (E.D. Ark. 1988) (taking judicial notice of a history of discrimination in Arkansas). Cases like Gunn and Johnson might support taking notice of a few limited historical facts, but they in no way support Intervenors far-reaching request for judicial notice. This Court should deny Intervenors request in its entirety. At the very least, the Court should refuse to notice the facts that claim to describe various conditions in South Carolina: there is uncontroverted evidence of racial polarization and minimal minority electoral success and that partisanship and race as determinants of voting are inextricably 4

5 Case 1:12-cv CKK-BMK-JDB Document 245 Filed 08/27/12 Page 5 of 7 intertwined. Doc. 225 at 3 (quoting United States v. Charleston County, 365 F.3d 341, (4th Cir. 2004)). segregation has continued to exist to a great extent with respect to churches, workplaces, businesses, and communities and there are lingering socio-economic effects of discrimination. Doc. 225 at 4 (quoting Levy v. Lexington County, S.C., No. 3: , 2009 WL at *2 (D.S.C. Feb. 19, 2009)). there was a pattern of white persons acting to intimidate and harass African American voters at the polls during the 1980s and 1990s and even as late as the 2000 general election. Doc. 225 at 5 (quoting United States v. Charleston County, 316 F. Supp. 2d 268, 289 n.23 (D.S.C. 2003)). the depressed socio-economic and educational status of blacks in the state... hinders their ability to participate effectively in the political process and to elect representatives of their choice. Doc. 225 at 6 (quoting Colleton County Council v. McConnell, 201 F. Supp. 2d 618, 642 (D.S.C. 2002)). [t]here is a larger percentage of blacks than whites below the poverty level; the household income of blacks is generally less than that of whites; unemployment is greater among blacks; and the level of formal education among black is less.... More blacks than whites are without private means of transportation.... Doc. 225 at 7 (quoting Smith v. Beasley, 946 F. Supp. 1174, 1203 (D.S.C. 1996)). [t]he clients of the social service agencies are not only poor but minorities and poor and minority citizens are less likely to be served by the DMV. Doc. 225 at 7 (quoting Condon v. Reno, 913 F. Supp. 946, 959 (D.S.C. 1995)). 5

6 Case 1:12-cv CKK-BMK-JDB Document 245 Filed 08/27/12 Page 6 of 7 South Carolina took actions to perpetuate racially dual school systems; that the effects of the State s actions persist to the present; and that, although most active resistance had ceased by the mid-1970s, the State of South Carolina has done little or nothing since then to eliminate the vestiges of the dual school system.... Doc. 225 at 7-8 (quoting Stanley v. Darlington Cnty. Sch. Dist., 879 F. Supp. 1341, 1390 (D.S.C. 1995)). [r]acial segregation was, and in large measure remains, the way of life in much of the private sector of Sumter County. Doc. 225 at 12 (quoting County Council of Sumter County, South Carolina v. United States, 596 F. Supp. 35, 37 (D.D.C. 1984)). CONCLUSION For these reasons, Defendant-Intervenors request for judicial notice (Doc. 225) should be denied. Respectfully submitted, Hon. Alan Wilson ATTORNEY GENERAL OF SOUTH CAROLINA Rembert Dennis Building, Room Assembly Street Columbia, SC (803) Karl S. Bowers, Jr. (admitted pro hac vice) WOMBLE CARLYLE SANDRIDGE & RICE 1727 Hampton Street Columbia, SC (803) Dated: August 27, 2012 s/h. Christopher Bartolomucci Paul D. Clement (DC Bar No ) H. Christopher Bartolomucci (DC Bar No ) Stephen V. Potenza (admitted pro hac vice) Jeffrey M. Harris (admitted pro hac vice) Brian J. Field (DC Bar No ) D. Zachary Hudson (admitted pro hac vice) Michael H. McGinley (DC Bar No ) BANCROFT PLLC 1919 M Street, N.W., Suite 470 Washington, D.C (202) H. Christopher Coates (admitted pro hac vice) LAW OFFICE OF H. CHRISTOPHER COATES 934 Compass Point Charleston, SC (843) Counsel for the State of South Carolina 6

7 Case 1:12-cv CKK-BMK-JDB Document 245 Filed 08/27/12 Page 7 of 7 CERTIFICATE OF SERVICE I hereby certify that on August 27, 2012, I filed the foregoing notice with the Court s electronic filing system, which will provide notice to all counsel of record. /s/ H. Christopher Bartolomucci H. Christopher Bartolomucci (D.C. Bar No )