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True the Vote v. Hosemann

United States District Court, S.D. Mississippi, Jackson Division

August 29, 2014


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For True the Vote, Jane Coln, Brandie Correro, Chad Higdon, Jennifer Higdon, Gene Hopkins, Frederick Lee Jenkins, Mary Jenkins, Tavish Kelly, Joseph Knezevich, Doris Lee, Lauren Lynch, Norma Mackey, Roy Nicholson, Mark Patrick, Julie Patrick, Paul Patrick, David Philley, Grant Sowell, Sybil Tribble, Laura VanOverschelde, Elaine Vechorik, Donna Knezevich, Plaintiffs: James Edwin Trainor - PHV, III, LEAD ATTORNEY, PRO HAC VICE, BEIRNE, MAYNORD & PARSONS, LLP - Austin, Austin, TX; Joseph M. Nixon - PHV, Kelly Hunsaker Leonard - PHV, Kristen W. McDanald - PHV, LEAD ATTORNEYS, PRO HAC VICE, BEIRNE, MAYNARD & PARSONS, LLP - Houston, Houston, TX; Lloyd Eades Hogue, LEAD ATTORNEY, BEINER, MAYNARD & PARSONS, LLP, New Orleans, LA.

For The Honorable Delbert Hosemann in his official capacity as Secretary of State for the State of Mississippi, Defendant: Harold Edward Pizzetta, III, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL, Jackson, MS; Justin L. Matheny, MISSISSIPPI ATTORNEY GENERAL'S OFFICE, Jackson, MS.

For The Republican Party of Mississippi, Defendant: Michael B. Wallace, LEAD ATTORNEY, WISE, CARTER, CHILD & CARAWAY - Jackson, Jackson, MS; Thornton Russell Nobile, WISE, CARTER, CHILD & CARRAWAY - Gulfport, Gulfport, MS.

For Copiah County, Mississippi Election Commission, Defendant: Elise Berry, Munn BERRY & MUNN, PA, Hazlehurst, MS.

For Hinds County, Mississippi Election Commission, Defendant: Pieter Teeuwissen, PIETER TEEUWISSEN, PLLC, Jackson, MS.

For Jefferson Davis County, Mississippi Election Commission, Defendant: Robert E. Sanders, LEAD ATTORNEY, YOUNG WELLS WILLIAMS SIMMONS, PA, Jackson, MS; John Wesley Daughdrill, Jr., YOUNG WELLS WILLIAMS, PA, Ridgeland, MS.

For Lauderdale County, Mississippi Election Commission, Defendant: Lee Thaggard, BARRY, THAGGARD, MAY & BAILEY, LLP, Meridian, MS.

For Leake County, Mississippi Election Commission, Defendant: Jeffrey T. Webb, WEBB LAW FIRM, PLLC, Carthage, MS.

For Madison County, Mississippi Election Commission, Defendant: Mike Espy, MIKE ESPY, PLLC, Jackson, MS.

For Rankin County, Mississippi Election Commission, Defendant: Craig Lawson Slay - County Gov, RANKIN COUNTY BOARD OF SUPERVISORS, Brandon, MS.

For Simpson County, Mississippi Election Commission, Defendant: Robert Daniel Welch, DANNY WELCH, ATTORNEY AT LAW, Mendenhall, MS.


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Nancy F Atlas, United States District Judge.



A. The Primary and Primary Runoff Elections

B. Plaintiffs' Allegations and Evidence

C. Procedural Posture


A. Summary Judgment Standard

B. Analysis

1. Have Plaintiffs Sued the Proper Defendants?

a. Is the Republican Party a Proper Defendant?

b. Are the County Defendants Proper Defendants?

i. Mississippi's Registration and Election

Oversight Structure and Procedure

ii. Analysis

c. Is Hosemann a Proper Defendant?

2. Does Section 1973gg-9 Pose a Procedural Bar

to Plaintiffs' Suit?

3. What Documents Do Plaintiffs Seek?

4. Are Plaintiffs Entitled Under the NVRA to Inspect the

Requested Documents?

a. Statutory Construction

i. Plain Meaning -- Overall Principles

ii. Statutory Context of the Public Disclosure

Provision Within the NVRA

iii. Statutory Purpose of the NVRA

iv. Context of the NVRA Public Disclosure

Provision in Light of Other Federal and

State Laws

b. Requested Documents

i. Voter Roll

ii. Poll Books

iii. Absentee Ballot Applications and Envelopes

iv. Federal Post Card Applications

5. Does the NVRA Preempt Mississippi Law?

a. Preemption Standard

b. Mississippi Law

c. Does the NVRA Require Disclosure of

Unredacted Records?

i. Project Vote is Distinguishable

ii. The NVRA Does Not Require Disclosure

of Unredacted Documents

iii. Birthdates, Like Social Security Numbers,

Are " Uniquely Sensitive."

d. The NVRA Public Disclosure Provision Does Not

Preempt Mississippi's Redaction Provisions


A. Preliminary Injunction Standard

B. Analysis

1. Substantial Likelihood of Success on the Merits

2. Irreparable Injury

3. Balance of Hardships

4. Disservice to the Public Interest


A. Legal Standard

B. Analysis



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The Court in this case is required to construe the scope of the National Voter Registration Act (" NVRA" ), 42 U.S.C. § 1973 et seq.,[1] a federal law that has

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seldom generated litigation. A particular focal point of this case is the June 24, 2014 primary runoff election held to determine the Republican Party of Mississippi's candidate in the November 2014 U.S. Senate election. Plaintiffs[2] state that they seek certain unredacted voting records from that election pursuant to the NVRA Public Disclosure Provision, 42 U.S.C. § 1973gg-6(i) (" Public Disclosure Provision" ), in order to investigate potential irregularities or inaccuracies concerning the primary runoff election and possibly to raise a challenge to the outcome of that election. Defendants[3] have refused some of Plaintiffs' requests citing multiple grounds, but primarily Defendants contend that Mississippi law requires redaction of certain personal voter registrant information from the records before they are publicly disclosed.

Before the Court are the following motions, each of which is ripe for consideration:

o Plaintiffs' Motion for Temporary Restraining Order [and Preliminary Injunction][4] [Doc. # 8] (" Preliminary Injunction Motion" ); [5]

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o Plaintiffs' Motion for Partial Summary Judgment [Docs. # 83 and # 84] (" Plaintiffs' Summary Judgment Motion" ); [6]
o Defendant Hosemann's Summary Judgment Request [Doc. # 114]; [7]
o Defendant Copiah County's Motion for Summary Judgment [Doc. # 79] (" Copiah County's Motion" ); [8]
o Defendant Hinds County's Motion for Summary Judgment [Docs. # 80 and # 81] (" Hinds County's Motion" ); [9]
o Defendant Jefferson Davis County's Motion for Summary Judgment [Doc. # 82] (" Jefferson Davis County's Motion" ); [10]
o Defendant Rankin County's Motion for Summary Judgment [Docs. # 85 and # 86] (" Rankin County's Motion" ); [11]
o Defendant Republican Party's Motion to Dismiss or, in the alternative, for Summary Judgment [Docs. # 87 and # 88] (" Republican Party's Summary Judgment Motion" ); [12]
o Defendant Lauderdale County's Motion for Summary Judgment [Doc. # 89] (" Lauderdale County's Motion" ); [13]
o Defendant Hosemann's Motion to Strike [Docs. # 116 and # 117].[14]
o Defendant Republican Party's Motion for Sanctions [Doc. # 67] (" Republican Party's Sanctions Motion" ); [15]

The Court held a hearing on Plaintiffs' Preliminary Injunction Motion on July 24, 2014 (the " July 24th Hearing" ). Plaintiffs and Defendants presented evidence and made legal arguments to the Court at that time. [16] The parties have furnished additional

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evidence in support of their claims, defenses, and motions.[17]

Having considered all the parties' briefing, the parties' oral arguments at the July 24th Hearing, all evidence of record, and the applicable legal authorities, the Court grants summary judgment to each of the moving County Defendants and to Hosemann, grants in part and denies in part the Republican Party's Summary Judgment Motion, denies Plaintiffs' Summary Judgment and Preliminary Injunction Motions, denies the Republican Party's Sanctions Motion, and denies Defendant Hosemann's Motion to Strike. Plaintiffs' first two claims are dismissed with prejudice.


A. The Primary and Primary Runoff Elections

On June 3, 2014, Defendant Republican Party conducted a primary election to determine the party's candidate for the November 2014 United States Senate election. The two highest vote-getters in the primary,[18] incumbent U.S. Senator Thad Cochran (" Cochran" ) and State Senator Chris McDaniel (" McDaniel" ), then participated in a primary runoff election three weeks later, on June 24, 2014.[19] According to the Republican Party, Cochran was victorious in the runoff election, receiving approximately 7,600 more votes than McDaniel.[20] The Republican Party officially certified Cochran as the primary winner on July 7, 2014, and submitted that information to the Mississippi Secretary of State, Defendant Delbert Hosemann.[21] McDaniel continues to challenge the outcome of the primary runoff.[22]

B. Plaintiffs' Allegations and Evidence

True the Vote characterizes itself as a " non-profit organization that works to protect

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the integrity of local, state, and federal elections." [23] " True the Vote monitors elections for compliance with state and federal law and identifies instances of voting irregularities or possible fraud." [24] True the Vote also " examines official lists of eligible voters and other voter registration data to verify their accuracy and currency . . . to protect the integrity of the electoral process and to ensure that accurate and current voter rolls are maintained by each state." [25] True the Vote's President, Catherine Engelbrecht (" Engelbrecht" ), testified that, as part of its mission, the organization trains volunteers to get involved in elections, researches the country's voter files to ensure their accuracy, and provides support to individuals concerned about election integrity in communities.[26]

In June 2014, True the Vote initiated a campaign to seek " voter records" from the State of Mississippi.[27] The purpose of True the Vote's initiative was to determine " whether ineligible voters had been allowed to cast ballots in the Mississippi Republican Primary Runoff Election." [28] Engelbrecht testified that True the Vote started this initiative after Mississippi voters reached out to the organization about concerns they had regarding " whether or not their vote would be counted." [29]

Engelbrecht first traveled to Mississippi to request records the week prior to the June 24th runoff election. Specifically, Engelbrecht visited Hinds, Rankin, and Panola Counties.[30] In Hinds and Rankin Counties, Engelbrecht requested absentee ballot applications and envelopes. Both counties denied her request.[31] In Panola County, Engelbrecht requested a report of individuals who voted in the Republican Primary held on June 3rd. Panola County granted her request and provided Engelbrecht an unredacted list of voters.[32] It is unclear exactly what list and what information about each voter was included on that list.[33]

After the runoff election, True the Vote assembled a team of roughly twenty volunteers, organized into ten teams of two, and instructed them to go to various Mississippi Counties and examine the counties' voting records from the runoff election.[34] True the Vote gave the volunteers training about the Mississippi election process prior

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to the volunteers' visits.[35] True the Vote also provided its volunteers with a memo from its counsel purporting to describe the Counties' obligations under the NVRA,[36] blank " incident report" forms,[37] a list of documents the volunteers were supposed to request, and a list of the counties to which each team of volunteers was assigned.[38] True the Vote volunteers canvassed the State in early July 2014, including on July 7th and 8th.[39]

The experiences of Ellen Swensen (" Swensen" ) and Susan Morse (" Morse" ), two True the Vote volunteers who are not plaintiffs in this lawsuit, are illustrative.[40] Swensen and Morse were charged with requesting records from Covington, Leake, and Jones Counties.[41] At each office in these Counties, Swensen and Morse requested electronic files listing everyone who voted in the primary and primary runoff elections (both Democrat and Republican voters); poll books; and absentee ballots, ballot envelopes, and applications.[42] These requests were denied, for various reasons specific to each County.[43] Swensen and Morse did not expressly state to any County's Circuit Clerk that their request was made pursuant to the NVRA.[44]

Other individuals made similar requests from Mississippi counties. For example, on June 27, 2014, three days after the runoff, Plaintiff Roy Nicholson (" Nicholson" ) requested copies of poll books from Rankin County, but the County denied his request.[45] Nicholson made a similar request from Hinds County and was permitted to view unredacted poll books.[46] Plaintiff Julie Patrick (" Patrick" ), also after the runoff, similarly requested poll books from

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Marshall and Tunica Counties, but was told that she could not review the poll books, even in redacted form.[47] Plaintiffs' evidence indicates that other individuals made similar requests in other Mississippi Counties, and all were denied access to unredacted poll books or other records.[48]

C. Procedural Posture

Plaintiffs filed this lawsuit on July 9, 2014.[49] In their Amended Complaint, True the Vote seeks a declaratory judgment that it has the right, under the NVRA, to inspect certain voter records (Count 1).[50] Plaintiffs further seek a declaration that the NVRA preempts Mississippi law and that they are entitled to unredacted copies of voter records (Count 2, and together with Count 1, the " NVRA

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claims" ).[51] The Individual Plaintiffs also assert a claim under 42 U.S.C. § 1983 and the Equal Protection Clause of the Fourteenth Amendment contending that their votes were diluted by " unlawful double voting" in the Republican primary runoff election (Count 3).[52] Contemporaneously with their Complaint [Doc. # 1], Plaintiffs filed the pending Preliminary Injunction Motion, seeking immediate relief on their NVRA claims.

In their Preliminary Injunction Motion, Plaintiffs seek a preliminary injunction preventing Defendants from destroying, tampering with, or permanently redacting information from the voting records Plaintiffs seek in this case.[53] Plaintiffs also seek an injunction requiring Defendants to make available the requested voter records " without redaction of birthdates." [54] In a telephone hearing held on July 15, 2014, counsel for all Defendants that had appeared by that date agreed not to destroy or alter any requested voter records during the pendency of this lawsuit.[55] Defendants also acknowledged that other applicable law prohibits alteration or tampering with these records. The first request in Plaintiffs' Preliminary Injunction Motion is thus moot. Plaintiffs' requests for unredacted voter records is the focus of the pending motions.

The Court held an evidentiary hearing on Plaintiffs' Preliminary Injunction Motion on July 24, 2014. Plaintiffs presented live witness testimony and documentary evidence in support of their Motion. Defendants relied solely on cross-examination of Plaintiffs' witnesses. The parties also presented oral argument.

Since the hearing, the parties have submitted additional evidence and extensive briefing. Plaintiffs, five of the County Defendants, Hosemann, and the Republican Party have moved for summary judgment.


A. Summary Judgment Standard

Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing of the existence of an element essential to the party's case, and on which that party will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); see also Baton Rouge Oil and Chem. Workers Union v. ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir. 2002). Summary judgment " should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); Celotex, 477 U.S. at 322-23; Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir. 2008).

For summary judgment, the initial burden falls on the movant to identify areas essential to the non-movant's claim in which there is an " absence of a genuine issue of material fact." Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir.

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2005). The moving party, however, need not negate the elements of the non-movant's case. See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005). The moving party may meet its burden by pointing out " 'the absence of evidence supporting the nonmoving party's case.'" Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th Cir. 1995) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 913 (5th Cir. 1992)).

If the moving party meets its initial burden, the non-movant must go beyond the pleadings and designate specific facts showing that there is a genuine issue of material fact for trial. Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir. 2001) (internal citation omitted). " An issue is material if its resolution could affect the outcome of the action. A dispute as to a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2006) (internal citations omitted).

In deciding whether a genuine and material fact issue has been created, the court reviews the facts and inferences to be drawn from them in the light most favorable to the non-moving party. Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336 F.3d 410, 412 (5th Cir. 2003). The non-movant's burden is not met by mere reliance on the allegations or denials in the non-movant's pleadings. See King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (holding that unverified pleadings do not " constitute competent summary judgment evidence" ). Likewise, " conclusory allegations" or " unsubstantiated assertions" do not meet the non-movant's burden. Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th Cir. 2008). Instead, the nonmoving party must present specific facts which show " the existence of a genuine issue concerning every essential component of its case." Am. Eagle Airlines, Inc. v. Air Line Pilots Ass'n, Int'l, 343 F.3d 401, 405 (5th Cir. 2003) (citation and internal quotation marks omitted). In the absence of any proof, the court will not assume that the non-movant could or would prove the necessary facts. Little, 37 F.3d at 1075 (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)).

The Court may make no credibility determinations or weigh any evidence, and must disregard all evidence favorable to the moving party that the jury is not required to believe. See Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 229 (5th Cir. 2010) (citing Reaves Brokerage Co., 336 F.3d at 412-413). The Court is not required to accept the non-movant's conclusory allegations, speculation, and unsubstantiated assertions which are either entirely unsupported, or supported by a mere scintilla of evidence. Id. (citing Reaves Brokerage, 336 F.3d at 413). Affidavits cannot preclude summary judgment unless they contain competent and otherwise admissible evidence. See Fed.R.Civ.P. 56(c)(4); Love v. Nat'l Med. Enters., 230 F.3d 765, 776 (5th Cir. 2000).

Finally, " [w]hen evidence exists in the summary judgment record but the nonmovant fails even to refer to it in the response to the motion for summary judgment, that evidence is not properly before the district court. Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003). " Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment." See id. (internal citations and quotations omitted).

B. Analysis

Plaintiffs, five County Defendants, Hosemann, and the Republican Party seek

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summary judgment in this case. The parties' pending motions primarily seek summary judgment on Plaintiffs' NVRA claims.[56] Through these claims, Plaintiffs seek a declaration of its right to inspect unredacted versions of certain voter records.[57] In this Memorandum and Order, the Court considers only Plaintiffs' NVRA claims and not their Equal Protection vote dilution claim.[58]

The crux of Plaintiffs' allegations in their NVRA claims is that, under the NVRA, they are entitled to unredacted voting records, particularly " poll books." Defendants raise a bevy of arguments why they are entitled to summary judgment on Plaintiffs' claims.[59] First, certain Defendants argue that they are not proper parties to this litigation. Second, Defendants argue that Plaintiffs failed to comply with the notice and cure requirements of 42 U.S.C. § 1973gg-9 prior to bringing this lawsuit, and the case therefore is statutorily barred. Third, Defendants contend that the NVRA does not cover the particular documents Plaintiffs seek. Finally, Defendants contend that the NVRA does not allow Plaintiffs access to unredacted voting records. Thus, Defendants contend that Mississippi law, which requires Defendants to redact birthdates before disclosing the documents, does not " directly conflict" with the NVRA and is not preempted by the NVRA under the applicable preemption standard.

For the reasons stated below, the Court grants Hosemann's request for summary judgment, grants the five County Defendants' motions for summary judgment, grants in part and denies in part the Republican Party's Summary Judgment Motion, and denies Plaintiffs' Summary Judgment Motion. Various reasons, as set forth below, warrant granting summary judgment in Defendants' favor on Plaintiffs' NVRA claims. Because many issues

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presented are novel and because time is of the essence, the Court addresses each ground for summary judgment raised by the parties.

1. Have Plaintiffs Sued the Proper Defendants?

a. Is the Republican Party a Proper Defendant?

Defendant Republican Party contends that it is an improper Defendant under the NVRA. The Republican Party argues that it is not a " State" under the NVRA, and that only States are subject to the NVRA's requirements. The Court agrees. The Fifth Circuit has held that " the NVRA only pertains to records maintained by the State." Voting for Am., Inc. v. Steen, 732 F.3d 382, 399 (5th Cir. 2013). The Court of Appeals concluded that the NVRA Public Disclosure Provision did not cover documents in the possession of volunteer deputy registrars " before they are officially received or maintained by the State." Id. Steen dictates the same result in this case. The Republican Party is not an arm of the State, and the NVRA Public Disclosure Provision therefore does not apply to it. Indeed, Plaintiffs appear to concede that its NVRA claims are not directed at the Republican Party.[60] Plaintiffs have offered no evidence that the Republican Party possesses any of the documents at issue in this case[61] or that True the Vote or any another individual requested documents from the Republican Party other than absentee ballot applications and envelopes.[62] Accordingly, summary judgment in favor of the Republican Party is proper on Plaintiffs' two NVRA claims.[63]

b. Are the County Defendants Proper Defendants?

In this case, Plaintiffs sue the Election Commissions of nine Mississippi Counties (collectively, the " County Defendants" ). The County Defendants contend that they are not proper parties and seek dismissal on that basis.

i. Mississippi's Registration and Election Oversight Structure and Procedure

Under Mississippi law, various individuals and entities oversee voter registration and elections. Indeed, both Federal and Mississippi law contemplate that voter registration activities will be conducted at the State and local ( e.g., County) levels.[64] Mississippi

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has created an intricate system for voter registration, updating of voter eligibility lists, and management of election ballots, ballot applications, and ballot boxes, all designed to preserve the integrity of the registration and electoral processes.

At the top of the Mississippi Equal Protection administration pyramid sits the State Board of Election Commissioners, which is comprised of " the Governor, Secretary of State and the Attorney General." [65] The Secretary of State also serves as Mississippi's " chief election officer." [66] As the State's chief election officer, the Secretary of State must coordinate all State responsibilities under the NVRA.[67] The Office of the Secretary of State is responsible for implementing and maintaining the Statewide Elections Management System (" SEMS" ), " a centralized database of all registered voters in the [S]tate." [68] Finally, the Secretary of State is authorized to collect data concerning voter participation in elections and to develop a program to train poll workers and Circuit Clerks.[69]

In each county, the Clerk of the Circuit Court serves as the " Registrar." [70] The Registrar serves a four-year term of office.[71] The Registrar is primarily responsible ...

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