AARON D.

FORD THERESA BENITEZ-

Attorney General THOMPSON
Chief of Staff
CRAIG A. NEWBY
First Assistant Attorney General LESLIE NINO PIRO

CHRISTINE JONES BRADY

STATE OF NEVADA General Counsel

HEIDI PARRY STERN

Second Assistant Attorney General
OFFICE OF THE ATTORNEY GENERAL Solicitor General
100 North Carson Street
Carson City, Nevada 89701

January 18, 2024

Via Electronic Mail

Thomas R. McCarthy
Consovoy McCarthy PLLC
[email protected]
Re: December 4, 2023 National Voter Registration Act Letter

Dear Mr. McCarthy:

We represent the Nevada Secretary of State. In his role, the Secretary

ensures Nevada and its counties employ robust procedures for maintaining voter
rolls in conjunction with the National Voter Registration Act (“NVRA”) and other
applicable laws.

We write in response to your December 4, 2023 letter, in which you claim

Nevada is not complying with the NVRA’s voter roll maintenance requirements,
based on registration rates in eight Nevada counties.1 Based on more accurate
data and applicable laws, we strongly disagree with your claim.

If you have specific concerns related to Nevada’s NVRA maintenance

requirements, please identify them so we can have an opportunity to respond
accordingly. In the meantime, in the spirit of transparency and public confidence
in Nevada’s electoral processes, we provide further response below.

I. Nevada’s List Maintenance Efforts

The Counties have reasonably maintained, and will continue to

reasonably maintain, their voter rolls in compliance with federal and state law.
Because the NVRA only requires general programs to remove voters who have
changed address or died, this section focuses on those two categories of ineligible
voters. This section also discusses activities Nevada has long had in the works

Carson City, Churchill County, Clark County, Douglas County, Eureka County, Lyon
1

County, Storey County, and Washoe County (the “Counties”).

Telephone: 775-684-1100 ● Fax: 775-684-1108 ● Web: ag.nv.gov ● E-mail: [email protected]

Twitter: @NevadaAG ● Facebook: /NVAttorneyGeneral ● YouTube: /NevadaAG
Thomas R. McCarthy
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for 2024 that clearly show Nevada takes list maintenance seriously. Please make
no mistake, however; these are things Nevada already planned to do before
receiving your letter and will continue implementing without delay.

A. Change-of-Residence Program

Pursuant to NRS 293.530, Nevada’s counties ensure maintenance of their

respective voter lists when a voter changes residence. Counties can “use any
reliable and reasonable means . . . to determine whether a registered voter’s
current residence is other than that indicated on the voter’s application to
register to vote.” NRS 293.530(1). This may include receiving Postal Service
change-of-address information, identifying voters who have failed to vote in
preceding elections, identifying voters whose sample or mail ballots are returned
undeliverable, and conducting investigations of registration by census, house-to-
house canvass, or any other method.

After identifying voters whose residences may have changed, the counties
will then mail those voters a written notice with a postage guaranteed return
postcard that has a space for the voter to write in his or her new address. NRS
293.530(1)(c)(1)-(2). If a voter returns the postcard with updated information,
the county will correct the voter registration list. NRS 293.530(f). However, if a
voter does not return the postcard within 33 days of its mailing, the county will
designate the voter as inactive. NRS 293.530(1)(d), (g). And if an inactive voter
fails to vote for two general elections after the mailing of the notice and postcard,
the county will cancel the voter’s registration. NRS 293.530(1)(c)(4).

Nevada has three elections scheduled for 2024: a presidential preference

primary election on February 6, 2024; a primary election on June 11, 2024; and
a general election on November 5, 2024. There is also a party-run caucus
scheduled for February 8, 2024. Each of these triggers the 90-day period when
a state is prohibited from systematically removing the names of certain ineligible
voters. See 52 U.S.C. § 20507(c)(2); 52 U.S.C. § 20502(1), (2); 52 U.S.C. §
30101(1), (3).

As a result, the soonest Nevada’s counties would be able to practicably

initiate the NRS 293.530 registration cancelation process again is between the
June 2024 primary election and the November 2024 general election. And they
will in fact be doing so. The counties will send the statutory notices and return
Thomas R. McCarthy
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January 18, 2024

postcards to all voters for which any sample or mail ballot from the February
2024 presidential preference primary and June 2024 primary elections is
returned undeliverable. This is a highly reasonable method of identifying voters
who may have moved because sample2 and mail3 ballots are sent to virtually all
active registered Nevada voters. If a voter does not return a postcard within 33
days of its mailing, his or her registration will be inactivated before the
November 2024 general election, and the voter’s registration will be cancelled if
she or he does not vote in the next two general elections following the mailing of
the notice and postcard.

B. Deceased Voters Program

The Nevada Secretary of State has entered into an agreement with the
Nevada Registrar of Vital Statistics to match information in the Vital Statistics
database to the voter registration list. NRS 293.675(7). Daily during the
workweek, the Secretary of State compares the Vital Statistics’ records against
the registration list. Id. The Secretary of State then sends the counties a list of
individuals in their respective counties identified as deceased, and the counties
then act on them on a routine basis.

C. Nevada Is Enhancing its Voter Registration System

During Nevada’s 81st legislative session, a bill was passed (Assembly Bill
422) that required the state move to a top-down voter registration system from a
bottom-up system; this type of system is widely considered a best practice for
maintaining accurate voter rolls. In the interest of ensuring that Nevada’s
elections are conducted as securely and accessibly as possible, Secretary Aguilar
requested $30 million from the governor and state legislature to deploy this
system in advance of the 2024 primary and general elections. The Voter
Registration and Election Management Solution (“VREMS”) has an anticipated
initial implementation date of April 1, 2024. VREMS will establish a single,
central platform at the state level, which will transmit data to the counties. This
system will expedite the identification of individuals who have moved within

2 Sample ballots are sent to all active registered Nevada voters, except those who elect
to receive them by electronic means or who registered less than 20 days before the election.
NRS 293.565(4)-(5), (7).
3 Mail ballots are sent to all active registered Nevada voters, except those who have

specifically opted out of receiving one or who registered less than 14 days before the election.
NRS 293.269911.
Thomas R. McCarthy
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January 18, 2024

Nevada’s counties and result in more efficient list maintenance. VREMS will be
in use when the counties complete the statutory notice and return postcard
process between the June 2024 primary election and the November 2024 general
election.

D. Nevada Will Continue its Collaborative Work

Nevada is a founding member of the bipartisan Electronic Registration

Information Center (“ERIC”) and will continue collaborating with ERIC. ERIC
is the foremost cooperative tool for states to maintain accurate voter registration
lists. Through ERIC, Nevada receives reports identifying inaccurate or out-of-
date voter registration records, deceased voters, and possible illegal voting.
ERIC uses data received from its members (24 states and Washington D.C.),
including state motor vehicle department data, and official federal death and
Postal Service change-of-address data. The counties are sent relevant data from
ERIC, and act on it to complement their other list maintenance activities.

ERIC is an important and powerful resource for voter list maintenance.

Regrettably, ERIC has been the target of misleading attacks, resulting in the
withdrawal of nine states. This has created a profound gap in those states’
abilities to maintain their voter rolls, with attempted alternatives lacking ERIC’s
effectiveness.4 We are not aware of you sending a similar letter to any of those
states.

II. Data Shows that Nevada Is Complying with the NVRA’s List
Maintenance Requirements

A. The Letter’s Analysis Is Highly Flawed

As explained below, registration rates are not an appropriate basis for

determining whether a state is complying with the NVRA. Yet the sole basis for
your allegation of non-compliance with the NVRA is a statistical analysis of
registration rates that relies on incomparable data. You contend that the
Counties have voter registration rates between 23 and 49 percent higher than
the State’s registration rates. You rely on data from the U.S. Census Bureau’s

4See, e.g., Miles Park, Republican states swore off a voting tool. Now they’re scrambling
to recreate it, NPR, https://www.npr.org/2023/10/20/1207142433/eric-investigation-follow-up-
voter-data-election-integrity (Oct. 20, 2023).
Thomas R. McCarthy
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January 18, 2024

Current Population Survey (“CPS”) to say that Nevada had a registration rate of
65.1% in 2022. And you rely on data from an entirely different survey, the 2017-
2021 5-Year Citizen Voting Age Population (“CVAP”), to provide the denominator
for your calculation of the current registration rates in the Counties. This is
comparing apples to orangutans.

The CPS voter registration rates are crude estimates based on historical
recall, obtained through personal or telephone interview, intended for an entirely
different purpose.5 As if relying on self-report and memory were not bad enough,
respondents generally also reported on the registration status of other members
of the household.6 People often do not know their own voter registration status,
let alone the status of others in their household. However, the accuracy of this
data relies on individuals accurately reporting the historical registration status
of every member of their household. Adding to this, the survey data is obtained
from approximately 54,000 households nationwide.7 While we were unable to
identify the precise number of Nevada households surveyed, based on Nevada’s
2023 population ranking of 32 among the 50 states, with less than 1% of the U.S.
population,8 it stands to reason that fewer than 1,000 Nevada households were
surveyed. The CPS is a national surveillance survey, which can provide national-
level data for monitoring trends within the survey over time. There is nothing to
suggest it was intended, or powered, to provide accurate or precise state-level
registration rates. And yet, you apply these rates as if they were absolute truth.
It defies credulity that a survey conducted for an entirely different purpose, with
a necessarily inaccurate recall-based measure of registration and a necessarily
imprecise sample estimate of registration, forms a cornerstone of your analysis.

The errors of the analysis are further compounded because it purports to

compare the CPS data to the 2017-2021 CVAP data. The CVAP data is based on

5 U.S. Census Bureau, Methodology, https://www.census.gov/programs-sur-

veys/cps/technical-documentation/methodology.html.
6 Id.
7 U.S. Census Bureau, Current Population Survey, November 2022 Voting Supplement

File, Technical Documentation CPS—22, https://www2.census.gov/programs-surveys/cps/tech-

docs/cpsnov22.pdf at 2-1.
8 See U.S. Census Bureau, Annual Estimates of the Resident Population for the United

States, Regions, States, District of Columbia and Puerto Rico: April 1, 2020 to July 1, 2023,
https://www2.census.gov/programs-surveys/popest/tables/2020-2023/state/totals/NST-
EST2023-POP.xlsx.
Thomas R. McCarthy
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January 18, 2024

the 2017-2021 5-Year American Community Survey (“ACS”).9 You offer no

explanation for why the two datasets would be compatible for shared analyses.
Moreover, the ACS population data “significantly underestimate[s] the
population.” Bellitto v. Snipes, 935 F.3d 1192, 1208 (11th Cir. 2019). It “takes
data drawn from the preceding five years and estimates the midpoint of the
data.” Id. The 2021 five-year data, therefore, estimates the population at the
middle of 2019. See id. Nevada has a substantially growing population,10 and
use of the ACS data does not account for growth since 2019. See id. The ACS
data further excludes many individuals who may be eligible voters but do not
reside in a county for the entire year, such as military personnel and college
students. Id. Because of these problems with the ACS, the Eleventh Circuit
upheld a district court’s decision which concluded that calculations using ACS
data in a similar NVRA challenge were misleading. Id. at 1208. Your
calculations, based on a comparison of CPS to ACS data, are equally, if not more,
misleading.

B. The Best Available Data Shows that Nevada Is

Appropriately Maintaining its Voter Rolls

We maintain that no currently available dataset would provide an

adequate comparison for determining whether registration rates and the actual
eligible voting population are mismatched. But to the extent you feel the need to
rely on U.S. Census Bureau data, we are confused that you have ignored the
more current 1-year CVAP data, which the U.S. Election Assistance Commission
(“EAC”) relies on in calculating registration rates. While not a perfect
comparison, it is at least comparing apples to another fruit: oranges.

9 U.S. Census Bureau, Citizen Voting Age Population (CVAP Special Tabulation From
the 2017-2021 5-Year American Community Survey (ACS), https://www2.census.gov/pro-
grams-surveys/decennial/rdo/technical-documentation/special-tabulation/CVAP_2017-
2021_ACS_documentation_v1.pdf, at 1.
10 Compare, e.g., U.S. Census Bureau, Nevada 2019 Citizen Voting-Age Population,

https://data.census.gov/ta-
ble/ACSDT1Y2019.B29001?q=B29&g=040XX00US32&d=ACS%201-Year%20Esti-
mates%20Detailed%20Tables (estimating Nevada’s voting population to be 2,111,932 in 2019)
with U.S. Census Bureau, Nevada 2022 Citizen Voting-Age Population, https://data.cen-
sus.gov/table/ACSDT1Y2022.B29001?q=B29&g=040XX00US32&d=ACS%201-Year%20Esti-
mates%20Detailed%20Tables (estimating Nevada’s voting population to be 2,227,239 in 2022).
Thomas R. McCarthy
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January 18, 2024

As shown by the EAC in the Election Administration and Voting Survey

2022 Comprehensive Report,11 released in June 2023, Nevada’s active voter
registration rate has been consistently below the national average. This is in line
with the EAC’s data showing Nevada’s generally above-average confirmation
notice mailing and removal action rates.12

Confirmation Voters
Active Regs. Notices Sent Removed (%
Jurisdiction Year
(% of CVAP) (% of Active of Registered
Voters) Voters)
2022 83.9% 22.0% 18.0%
Nevada 2020 86.9% 19.7% 7.7%
2018 77.0% 16.6% 11.1%
2022 85.4% 13.7% 8.5%
U.S. 2020 88.1% 14.3% 8.2%
2018 82.5% 11.6% 8.2%

The 2022 1-Year CVAP data also supports the conclusion that Nevada has
continued its reasonable list maintenance activities. Although it is a year behind,
compared to the active registrations in Nevada identified as of December 1, 2023,
the statewide active registration rate is 85.7%.13 This contrasts with the
statewide 90.2% registration rate compared to the 2021 5-Year CVAP data.
Based on your selection of Counties targeted in your letter, it appears you believe
that an 86.5% registration rate is acceptable. Because the Counties account for
93.9% of the citizen voting age population based on the 2021 5-Year CVAP data,
it seems likely that using more up-to-date numbers would put the Counties below
your 86.5% threshold.

11 EAC, Election Administration and Voting Survey 2022 Comprehensive Report,

https://www.eac.gov/sites/default/files/2023-06/2022_EAVS_Report_508c.pdf.
12 Table data is taken from id. at 164, 166, 182-83 188-89; EAC, Election Administra-

tion and Voting Survey 2020 Comprehensive Report, https://www.eac.gov/sites/de-

fault/files/document_library/files/2020_EAVS_Report_Final_508c.pdf at 159-60, 165-66; EAC,
Election Administration and Voting Survey 2018 Comprehensive Report,
https://www.eac.gov/sites/default/files/eac_assets/1/6/2018_EAVS_Report.pdf at 79, 83.
13 Compare U.S. Census Bureau, Nevada 2022 Citizen Voting-Age Population,

https://data.census.gov/ta-
ble/ACSDT1Y2022.B29001?q=B29&g=040XX00US32&d=ACS%201-Year%20Esti-
mates%20Detailed%20Tables (estimating Nevada’s voting population to be 2,227,239 in 2022)
with Office of Nevada Secretary of State, Voter Registration Statistics (Dec. 1, 2023),
https://www.nvsos.gov/sos/home/showpublisheddocument/12583/638374697749430000 (iden-
tifying 1,907,794 active registrants).
Thomas R. McCarthy
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January 18, 2024

It has not escaped our notice that you have sent similar letters to certain
states, but not to other states with far higher active registration rates compared
to the 1-Year CVAP data.1415

III. The NVRA’s Requirements and Limitations

The “NVRA was intended as a shield to protect the right to vote, not as a
sword to pierce it.” Am. Civil Rights Union v. Philadelphia City Comm’rs, 872
F.3d 175, 182 (3d Cir. 2017). Nevada, like any other state, wants a high voter
registration rate and voting rating from every eligible citizen to ensure
government by the people, for the people. Under the NVRA, voters may only be
removed from the voter rolls for limited reasons, and as a result, the NVRA itself
is “partly responsible” for high voter registration rates. Crawford v. Marion
County Election Bd., 553 U.S. 181, 192 (2008). Consequently, a high voter
registration rate alone, even one based on reliable numbers, is not a basis to
conclude that a state is not adequately maintaining its voter rolls.

A. The NVRA’s List Maintenance Requirements Are Narrow

The NVRA sharply limits a state’s ability to remove voters from its rolls.
States may only remove voters (1) at the voter’s request; (2) if a voter becomes
ineligible under state law “by reason of criminal conviction or mental incapacity”;
(3) if the voter died; or (4) if the voter changed residence. 52 U.S.C. § 20507(a)(3)-
(4). To promote voter roll maintenance, the NVRA requires that states conduct
a general program that makes “a reasonable effort to remove voters who become
ineligible on account of death or change of residence.” Bellitto, 935 F.3d at 1195;
52 U.S.C. § 20507(a)(4). Any general program to remove voters must be
“uniform, nondiscriminatory, and in compliance with the Voting Rights Act of
1965,” and may not be based solely on a voter’s failure to vote. 52 U.S.C. §
20507(b)(1)-(2).

Because removal is only mandatory for voters who have moved and
deceased voters, this response focuses only on those two categories.

14 See EAC, Election Administration and Voting Survey 2022 Comprehensive Report,
https://www.eac.gov/sites/default/files/2023-06/2022_EAVS_Report_508c.pdf at 162-65.
15 As described below, because you are contemplating litigation, we ask you and your

clients to preserve records relating to, among other things, the decision to target specific states.
Thomas R. McCarthy
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January 18, 2024

1. Program to Remove Voters Based on Change of

Residence

The NVRA identifies two paths a state may follow for removing voters who
have changed residence.

First, a state may meet the reasonable efforts requirement by taking

specified steps in connection with registrants whose addresses may have changed
based on change-of-address information supplied by the Postal Service (“NCOA
Process”). 52 U.S.C. § 20507(c)(1). For registrants that have moved within the
same jurisdiction, a registrar can change the registration records to the new
address and send a notice of change to the registrant for the registrant to verify
or correct the address information. 52 U.S.C. § 20507(c)(1)(B)(i). For registrants
that have moved to a different jurisdiction, the registrar can remove the
registrant’s name if the registrant confirms the out-of-jurisdiction move in
writing. 52 U.S.C. § 20507(d)(1)(A). The registrar can also send a notice to the
registrant for the registrant to state their current address, and if the registrant
does not respond and does not appear to vote in the next two federal general
elections, the registrar can remove the name of the registrant. 52 U.S.C. §
20507(d)(1)(A)(B).

Second, states can use methods other than the NCOA Process to identify
voters who may have moved out of the jurisdiction. 52 U.S.C. § 20507(d); see also
U.S. Dep’t of Justice, The National Voter Registration Act of 1993 (NVRA),
Questions and Answers, No. 36, https://www.justice.gov/crt/national-voter-
registration-act-1993-nvra. For instance, a state can identify voters who may
have moved because they have failed to vote. See id.; Husted v. A. Philip
Randolph Inst., 138 S. Ct. 1833, 1846-47 (2018). A state will then follow the
NCOA Process’s notice process for those who move to a new jurisdiction to
remove ineligible voters. 52 U.S.C. § 20507(d).

2. Program to Remove Deceased Voters

“[F]or voters who become ineligible because of death, . . . reliance on

reliable death records, such as state health department records and the Social
Security Death Index, to identify and remove deceased voters constitutes a
reasonable effort.” Bellitto, 935 F.3d at 1205. A “state is not required to exhaust
Thomas R. McCarthy
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January 18, 2024

all available methods for identifying deceased voters; it need only use reasonably
reliable information to identify and remove such voters.” Id.

B. Registration Rates Do Not Indicate Non-Compliance with

the NVRA

While the NVRA requires states to conduct a general program that makes
a reasonable effort to remove voters who become ineligible based on death or
change of residence, the NVRA does not provide a numerical threshold to
establish compliance or lack thereof. Use of registration rates alone does not
demonstrate a failure to comply with the NVRA; registration rates may far
exceed the eligible voting pool without any violation. This is true for several
reasons.

First, the NCOA Process creates a safe harbor for compliance with the
NVRA’s requirement of a general program to remove voters who have become
ineligible due to a change of address. Bellitto, 935 F.3d at 1203. If a state uses
the NCOA Process, it meets the NVRA’s minimum statutory requirements with
respect to voters who have moved. Id. at 1203-04. The NCOA Process is
sufficient even though it may not lead to the immediate removal of some
ineligible voters. In fact, “[a]s many as 40 percent of people who move do not
inform the Postal Service.” Id. at 1204 (quoting Husted, 138 S. Ct. at 1840).
Thus, under the NVRA, a substantial number of voters who have moved out of
the jurisdiction may properly remain on the voter rolls.

Second, the NVRA only requires states to remove voters based on a change
of address or death. Bellitto, 935 F.3d at 1195; 52 U.S.C. § 20507(a)(4). Thus,
under the NVRA, voters who are ineligible may properly remain on the voter
rolls, resulting in higher registration numbers.

Third, the NVRA prohibits a state from removing certain ineligible voters
through its general removal program during the 90-day period before a federal
primary and general election. 52 U.S.C. § 20507(c)(2)(A). This can result in
higher registration numbers because a state would be unable to systematically
remove voters through its general programs, while new voters are still able to
register. See Bellitto, 935 F.3d at 1208.
Thomas R. McCarthy
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January 18, 2024

Taken together, the NVRA’s statutory scheme reflects that active

registration rates may properly be significantly higher than the actual pool of
eligible, registered voters. Your reliance on registration rates to claim the
Counties are violating the NVRA is misplaced.

IV. Your Letter Does Not Meet the Requirements for Adequate Notice

You purport to satisfy the NVRA’s pre-litigation written notice

requirement through your letter. See 52 U.S.C. § 20510(b)(1)-(2). The purpose
of the notice letter is to allow a state an opportunity to cure the violation. See
Ass’n of Comm. Orgs. for Reform Now v. Miller, 129 F.3d 833, 838 (6th Cir. 1997)
(“Congress structured the notice requirement in such a way that notice would
provide states in violation of the [NVRA] an opportunity to attempt compliance
before facing litigation.”).

Your letter is inadequate. You have not plausibly alleged any violation,
see Nat’l Council of La Raza v. Cegavske, 800 F.3d 1032, 1044 (9th Cir. 2015),
and your vague assertions fail to provide “an opportunity to attempt compliance,”
see Scott v. Schedler, 771 F.3d 831, 836 (5th Cir. 2014). As discussed above, the
data provided is insufficient and does not establish a plausible violation of the
NVRA. Moreover, you have not explained how the Counties’ processes are
supposedly insufficient. As detailed in this letter, the Counties’ processes are
robust, and the state will continue to implement list maintenance activities
before the 2024 general election. If you have any specific, actionable concerns,
please identify them.

V. Preservation of Records

Finally, because you are threatening litigation, we ask that you and your
clients preserve, at a minimum, all documents and records concerning:

• Communications with any state and/or county concerning its voter list
maintenance.

• The selection of states and/or counties to send a letter to and/or to bring

a lawsuit against based on allegations of non-compliance with the
NVRA’s voter list maintenance requirements.
Thomas R. McCarthy
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January 18, 2024

• How the data was selected for this demand letter and what
considerations, if any, were made for alternative data.

• Communications with other entities regarding the NVRA.

• Fundraising to send any letter and/or bring any lawsuit based on

allegations of non-compliance with the NVRA’s voter list maintenance
requirements.

• Participating in any potential lawsuit based on allegations of non-

compliance with the NVRA’s voter list maintenance requirements.

We hope that this response provides you with adequate information and
that you will not pursue litigation. If you have questions or would like to discuss
NVRA compliance further, please let us know. Nevada prides itself on its secure,
accessible, and transparent election processes, and we would be happy to educate
you further on the good work our state and counties perform tirelessly.

Sincerely,

/s/ Laena St-Jules

Laena St-Jules
Senior Deputy Attorney General
[email protected]