                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 07-2322
                                     ___________

United States of America,                *
                                         *
              Appellant,                 *
                                         * Appeal from the United States
       v.                                * District Court for the
                                         * Western District of Missouri.
State of Missouri; Secretary of State,   *
Robin Carnahan; Attorney General         *
of the State of Missouri; Office of      *
the Governor,                            *
                                         *
              Appellees.                 *
                                    ___________

                               Submitted: March 10, 2008
                                  Filed: July 29, 2008
                                   ___________

Before RILEY, GRUENDER, and SHEPHERD, Circuit Judges.
                            ___________

RILEY, Circuit Judge.

      The United States brought suit against the State of Missouri and the Missouri
Secretary of State in her official capacity1 (collectively, “Missouri”), alleging Missouri

      1
       Pursuant to the National Voter Registration Act of 1993 (NVRA), “[e]ach state
shall designate a State officer or employee as the chief State election official to be
responsible for coordination of State responsibilities under [the NVRA].” 42 U.S.C.
§ 1973gg-8. Missouri has designated its Secretary of State to perform this function.
See Mo. Rev. Stat. § 115.136(1).
was in violation of its obligations under the National Voter Registration Act of 1993
(NVRA). The district court found Missouri met its NVRA obligation to make a
reasonable effort to conduct a general program of voter list maintenance. To the
extent some NVRA violations existed, the district court found those violations were
the responsibility of individual local election agencies (LEAs), and Missouri was not
directly responsible for enforcement of the NVRA against the LEAs. The district
court recognized Missouri must do more than enact statutes to comply with the
NVRA, and must make a reasonable effort to coordinate state responsibilities. The
district court therefore granted summary judgment in favor of Missouri on “any claim
by the United States which seeks to hold Missouri responsible for enforcement of the
NVRA against local election authorities,” but allowed additional discovery for the
United States to make its case that Missouri’s compliance was unreasonable.

       After discovery, the district court found Missouri reasonably met its obligation
to “conduct a general program” under the NVRA, and granted summary judgment to
Missouri on all claims. In making this decision, the district court declined to admit,
for the truth of the matters asserted therein, responses contained in surveys of the
LEAs, finding the survey responses were hearsay. The district court allowed the
survey statements only for the limited purpose of showing Missouri’s knowledge of
possible NVRA violations by the LEAs.

      On appeal, the United States argues the district court erred in its interpretation
of the NVRA. The United States also challenges the district court’s decision to
exclude LEA survey responses from evidence. We affirm in part, reverse in part, and
remand for reconsideration.

I.   BACKGROUND
     A.    Underlying Facts and the United States Complaint
     The United States filed suit against Missouri, alleging Missouri was in
noncompliance with its responsibilities under the NVRA. Of particular significance

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to this appeal, the United States alleged Missouri failed to “conduct a general program
that makes a reasonable effort to remove the names of ineligible voters from the
official lists of eligible voters by reason of [death or change in residency],” pursuant
to 42 U.S.C. § 1973gg-6(a)(4).

       The district court examined Missouri’s actions to comply with the NVRA and
Missouri’s actions between 1996 to 2004 to attempt to remove ineligible voters from
the voter rolls. In its findings of fact, the district court explained Missouri had, among
other things, (1) enacted a law amending Missouri’s statutory scheme regarding voter
registration and list maintenance; (2) through state law, required “that the systematic
removal of . . . ineligible voters from voter . . . lists must be completed at least 90 days
[before] election[s] for federal office[s]”; (3) “provided for the removal of . . . voters
based on death, felony conviction, or mental incapacity”; (4) required local election
authorities to conduct a canvass of registered voters every two years; (5) provided for
removal of voters who fail to respond to confirmation notices upon completion of the
canvass, after the voter has failed to vote “in two consecutive general elections after
the date of notice”; (6) developed a centralized voter registration database (CVRD)
and numerous local voter registration systems (LVRS); (7) provided for updated voter
registration systems throughout the state, including provision “of hardware and
software, data conversion and training, and maintenance and support for these
computer systems”; (8) coordinated efforts to receive updated information in order to
continually update and harmonize the CVRD and LVRS; (9) obtained information
from the court systems and the registrars of vital statistics to determine “the identity
of [voters who had been] adjudged incapacitated or . . . had been convicted of a
felony”; and (10) expended in excess of six million dollars to implement the CVRD.

       The district court also delineated Missouri’s actions from 2004 to the time of
its decision. These steps included (1) taking steps to “eventually replace the CVRD
with the Missouri Voter Registration System (MVRS), . . . a single voter . . . database
to be directed by the Secretary of State’s office; (2) by late 2005, effectively having

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109 of 116 local election authorities transfer their data to the MVRS, with all
remaining counties scheduled to be completed by January 1, 2006; (3) requiring the
MVRS to be updated on a regular basis, and placing responsibility for MVRS
maintenance on the Secretary of State; (4) providing publications and also training to
LEA authorities at various seminars across Missouri; (5) taking registration surveys
from LEAs and submitting compilation reports to the United States Election
Assistance Commission as required by federal law; and (6) developing an action plan
for encouraging LEA compliance, which included preparation of a guideline manual
and regular training for LEA authorities, as well as tracking of registration
inconsistencies, and follow-up with LEA authorities where discrepancies are
identified.

        Throughout the litigation, the registered voters in numerous Missouri counties
exceeded the number of eligible voters. The district court found it was unclear
whether these discrepancies resulted, in part, from “the NVRA’s dual requirements
that drivers license applicants must be given an opportunity to register to vote
[increasing the numbers of registered voters], and a non-response to a voter canvass
requir[ing] a two year delay before names can be removed from the voter registration
lists [thus delaying removal of those no longer eligible to vote].” The district court
also recognized the federal government had determined twenty-two counties had low
numbers of inactive registrants, indicating a possible lack of routine maintenance of
voter lists.

       In its complaint against Missouri, the United States alleges several provisions
of the NVRA, contending Missouri failed to (1) “conduct a general program that
makes a reasonable effort to remove the names of ineligible voters from the official
lists of eligible voters by reason of . . . the registrant [dying or moving]”;
(2) implement a program that was “uniform, nondiscriminatory, and in compliance
with the Voting Rights Act”; (3) implement a program that prevented the removal of
any person’s name from the official list of voters by reason of the person’s failure to

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vote; and (4) complete, at least 90 days before the date of a primary or general election
for federal office, a program to ensure that the names of ineligible voters have been
removed from the official list.

      B.    The District Court’s Grant of Summary Judgment
      The district court stated:

      The Government’s Complaint is not clear as to what non-compliance
      conduct it alleges against Missouri. In some respects, it appears the
      Government alleges that Missouri itself failed to comply with the
      NVRA. In other respects, it appears the Government is attempting to
      hold Missouri liable for the conduct of local election authorities that does
      not comply with the NVRA. The Complaint does not separate its claims
      into separate counts nor does it explicitly state the alleged wrongful
      actors.

The district court further explained, “It appears that the Government is seeking, in
large part, an order which will require Missouri . . . to enforce the NVRA and the
corresponding Missouri statutes against local election authorities.” The district court
concluded, “Because neither Missouri State law nor the NVRA gives the Secretary of
State enforcement authority, summary judgment is granted in favor of [Missouri] on
those claims that seek to hold [Missouri] responsible for the enforcement of the
NVRA against local election authorities.”

       In effect, the district court concluded Missouri could only be held responsible
for those duties directly assigned to the state, including the requirement it “conduct
a general program that makes a reasonable effort to remove the names of ineligible
voters from the official lists of eligible voters by reason of [death or change in
residency],” pursuant to 42 U.S.C. § 1973gg-6(a)(4). However, the district court
acknowledged, “Although Missouri is not required to enforce the NVRA against local
election officials, it must itself comply with the terms of the NVRA.” The district
court allowed additional time for discovery, and subsequently determined Missouri’s

                                          -5-
efforts to conduct a general program to remove ineligible voters from the rolls was
reasonable. The district court granted summary judgment in favor of Missouri.

II.    STANDARDS OF REVIEW
       The parties agree this case represents the functional equivalent of a bench trial.
In an “appeal from a civil bench trial, we review the trial court’s findings of fact for
clear error. Its conclusions of law are subject to de novo review. Mixed questions of
law and fact that require the consideration of legal concepts and the exercise of
judgment about the values underlying legal principles are also reviewed de novo.”
Cooper Tire & Rubber Co. v. St. Paul Fire & Marine Insur. Co., 48 F.3d 365, 369 (8th
Cir. 1995) (citation omitted). We do review the grant of summary judgment de novo,
“viewing the record most favorably to the non-moving party.” Tipler v. Douglas
County, 482 F.3d 1023, 1025 (8th Cir. 2007).

       “We review a district court’s evidentiary rulings for clear abuse of discretion,
reversing only when an improper evidentiary ruling affected [a party’s] substantial
rights or had more than a slight influence on the verdict.” United States v. Two
Shields, 497 F.3d 789, 792 (8th Cir. 2007) (citation omitted). We will not reverse if
the error was harmless. See Fed. R. Civ. P. 61.

III.   DISCUSSION
       A.    District Court’s Interpretation of the NVRA
       The United States characterizes the main issue as, “Whether states can be held
accountable for their local subdivisions’ violations of Section 8 of the [NVRA], 42
U.S.C. [§] 1973gg-6.” This framing of the issue epitomizes the federal government’s
construction of the NVRA. A different framing of the issues would be: “For which
violations of Section 8 of the NVRA may states be held accountable when local
subdivisions violate the NVRA?” and “In what manner may states be held accountable
for the conduct of the LEAs?”



                                          -6-
       In essence, the United States contends the NVRA places obligations directly on
the states (highlighting in bold the term “State” in various passages from the NVRA).
Under the federal government’s view, if a state delegates any obligation to an LEA,
the state remains ultimately responsible for the obligation.

       Missouri admits the NVRA directly imposes certain requirements on the states.
However, Missouri is quick to note the NVRA imposes different levels of obligations
for various requirements. For instance, section 1973gg-6 (the primary section at
issue) imposes certain duties on the states. See § 1973gg-6(a) (“In the administration
of voter registration for elections for Federal office, each State shall— . . .” (emphasis
added)). The statute then lists numerous provisions using different verbs to describe
the states’ responsibilities. Under section 1973gg-6(a)(1), the state must “ensure that
any eligible applicant is registered to vote in an election.” (emphasis added). Under
section 1973gg-6(a)(2), the state must “require the appropriate State election official
to send notice to each applicant of the disposition of the application.” (emphasis
added). Under section 1973gg-6(a)(3), the State must “provide that the name of a
registrant may not be removed from the official list of eligible voters except [under
specified circumstances].” (emphasis added). Under section 1973gg-6(a)(4) (of most
importance in this case), the state must “conduct a general program that makes a
reasonable effort to remove the names of ineligible voters from the official lists of
eligible voters by reasons of [death or change of residence].” (emphasis added).
Under §1973gg-6(a)(5), the state must “inform applicants [of certain provisions].”
(emphasis added). Finally, under section 1973gg-6(a)(6), the state must “ensure that
the identity of the voter registration agency through which any particular voter is
registered is not disclosed to the public.” (emphasis added).

       Under the plain language of the statute, states must take specific actions. Some
of these provisions envision delegation, and do not require the states to do more than
delegate. For example, Congress expressly used the term “ensure” for the requirement
that “the identity of the voter registration agency through which any particular voter

                                           -7-
is registered is not disclosed to the public.” See §1973gg-6(a)(6). Missouri is directly
responsible for ensuring this identity remains undisclosed, and if Missouri delegated
this responsibility, it could not avoid liability for any failure to maintain such non-
disclosure. The same would be true for the provision “ensur[ing] that any eligible
applicant is registered to vote in an election.” See §1973gg-6(a)(1).
        The United States claims Missouri has violated §1973gg-6(a)(4). This
provision requires that Missouri “conduct a general program that makes a reasonable
effort to remove the names of ineligible voters from the official lists of eligible voters
by reason of [death or change in residency].” By its plain language, this requirement
envisions the states will actively oversee a general program wherein many of the
duties not specifically assigned to the states may be delegated. Unlike the term
“ensure” which indicates a direct non-delegable state responsibility, the term “require”
may indicate a responsibility to do little more than pass a mandatory law. The
phraseology “conduct a general program that makes a reasonable effort,” §1973gg-
6(a)(4), represents some middle ground. Nonetheless, this “conduct” terminology
clearly envisions Missouri will actively oversee the general program.2


      2
        The Elections Clause provides delegation for prescribing rules governing
federal elections. See U.S. Const. art. I, § 4, cl. 1 (“The Times, Places and Manner
of holding Elections for Senators and Representatives, shall be prescribed in each
State by the Legislature thereof; but the Congress may at any time by Law make or
alter such Regulations, except as to the Places of chusing Senators.” (emphasis
added)). Missouri contends, although Congress has authority to disrupt the
federal/state balance of authority over elections, in order to do so, Congress “must
make its intention to do so unmistakably clear in the language of the statute.”
(quoting Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991)). The United States
distinguishes Gregory, arguing the issue before the Court in Gregory, unlike the case
before us, “involved the authority of states ‘to determine the qualifications of their
most important government officials.’” (quoting Gregory, 501 U.S. at 463). The
question in Gregory was whether the Missouri constitutional requirement that state
judges retire at seventy violated the Age Discrimination in Employment Act. Id. at
455. The United States further points out “the regulation of federal elections is not
one of the inherent powers that the Tenth Amendment reserves to the states.” (citing
U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 802-05 (1995)).
                                          -8-
After all, the term “conduct” is an active verb, encompassing the concept of providing
leadership. See Webster’s Third New Intn’l Dictionary 474 (1993) (defining the term
as meaning, inter alia, “to bring by or as if by leading”; “to lead as a commander”; “to
have the direction of”; “to direct as leader the performance or execution of”; and “to
act as leader or director”). Under the NVRA’s plain language, Missouri may not




        We recognize the direct federal regulation of state officials’ election
qualifications raises far greater federalism concerns than congressionally imposed
requirements for federal elections. We also recognize regulation of federal elections
could not have been technically reserved to the states by the Tenth Amendment, when
such federal elections did not exist before the Constitution was established. The
Supreme Court has described the federal Elections Clause as a “delegation[] of power
to the States to act with respect to federal elections.” Id. at 805. The Court was
discussing the power of the states to add qualifications for federal representatives, and
explained, “In the absence of any constitutional delegation to the States of power to
add qualifications to those enumerated in the Constitution, such a [state] power does
not exist.” Id. (emphasis added). Thus, although the regulation of federal elections
is not one of the inherent powers that the Tenth Amendment reserves to the states, see
id. at 802 (explaining that the Constitution only “‘reserve[s powers of the states]
which existed before” the Constitution was established), the text of the Elections
Clause may arguably describe “the usual constitutional balance between the States and
the Federal Government,” Gregory, 501 U.S. at 460 (citations and internal quotation
marks omitted), such that, “If Congress intends to alter [that balance], it must make
its intention to do so unmistakably clear in the language of the statute.” Id. (citations
and internal quotation marks omitted). On the other hand, the Elections Clause
permits Congress to “make or alter” elections of “Senators and Representatives” “at
any time,” which may not be a traditional federalism issue making Gregory applicable.

       However, we need not decide whether the plain statement rule applies in the
context of the Elections Clause. The NVRA utilizes the mandatory “shall” followed
by an active verb, requiring the states to “conduct a general program.” We see no
ambiguity in Congress’s intent to place this additional requirement on the states in
their conduct of federal elections. Particularly given the limited nature of our reversal,
we are not endorsing the United States’s attempt to have the federal courts order
Missouri to enforce the NVRA directly.
                                           -9-
delegate the responsibility to conduct a general program to a local official and thereby
avoid responsibility if such a program is not reasonably conducted.

       The district court correctly understood the key issue is whether or not Missouri
has met its express obligations under the NVRA. However, the district court
misunderstood the relevance of the LEAs’ actions or inactions regarding Missouri’s
compliance with the NVRA. The district court found Missouri could not be “[held]
responsible for enforcement of the NVRA against local election authorities.” This
determination was technically correct. The plain language of the NVRA provides a
right of enforcement to only two categories of plaintiffs—the United States and “[a]
person who is aggrieved by a violation of [the NVRA].” § 1973gg-9(a) and (b). The
State of Missouri would not necessarily be a “person . . . aggrieved by” a violation of
the NVRA. The statute envisions the federal government predominantly will enforce
the NVRA.3

       Although Missouri cannot be required to enforce the NVRA against the LEAs,
any lack of LEA compliance remains relevant to determining whether or not Missouri
is reasonably “conduct[ing] a general program.” Other remedies besides ordering
Missouri to enforce the NVRA against the LEAs may remain. For instance, if the
district court determines a lack of LEA compliance renders Missouri’s efforts to
conduct a general program unreasonable, it could order Missouri either to (1) develop
different or improved methods for encouraging LEA compliance, or (2) assume direct
responsibility for some or all of the activities needed to remove ineligible voters from

       3
         The United States also pitches a policy plea, asking us to hold Missouri
responsible for enforcement because it will be much more difficult for the federal
government to enforce the NVRA against individual LEAs. This plea fails to
recognize (1) the federal government has taken enforcement actions directly against
the LEAs in the past; (2) after one or two LEAs are held liable others are more likely
to fall in line without lengthy litigation; and (3) it is not the place of the courts to “re-
work” a statute to simplify enforcement when Congress could have written the
legislation differently. This is a policy decision for Congress. We decline to shift this
cost and burden to the states without clear direction from Congress.
                                            -10-
the voter rolls (i.e., cease delegating NVRA responsibilities to the non-complying
LEAs).

       We do not suggest what equitable relief, if any, may be appropriate, as the
district court sits in a much better position to make this determination. We only
provide the above options to clarify the possible realm of the actions. The courts, of
course, should refrain from micromanaging the state and its agencies. See Angela R.
v. Clinton, 999 F.2d 320, 326 (8th Cir. 1993) (“Federal courts operate according to
institutional rules and procedures that are poorly suited to the management of state
agencies.”). “[A]ppropriate consideration must be given to principles of federalism
in determining the availability and scope of equitable relief.” Rizzo v. Goode, 423
U.S. 362, 379 (1976) (citation omitted).

      The district court provided a lengthy analysis of Missouri’s attempts to comply
with the NVRA, finding Missouri met its obligation for a “reasonable effort” to
“conduct a general program . . . .” On remand, the district court is not bound to reach
a contrary conclusion. Rather, our reversal requires only that the district court also
consider any lack of LEA compliance and determine whether any such noncompliance
renders Missouri’s effort to “conduct a general program” unreasonable in removing
the names of ineligible voters.




                                         -11-
       B.    Exclusion of Canvassing Reports as Hearsay
       Under the NVRA, the Election Assistance Commission (EAC) makes reports
to Congress in odd-numbered years. See § 1973gg7(a)(3). In 2005, the EAC sent
survey forms to Missouri late. The EAC denied Missouri’s request for an extension
of time and told Missouri to do the best it could. The bulk of Missouri’s work fell on
one person. Missouri compiled survey responses from the LEAs into one report, and
sent the report to the EAC.

       The district court allowed the survey responses into evidence to demonstrate
Missouri had notice of possible problems, but did not admit the responses for the truth
of the matters asserted therein, finding the response statements were hearsay. The
United States challenges this finding. The court’s decision to deny admission of the
survey responses for their truth represents a close evidentiary question. Given the
deferential standard of review, we affirm. See United States v. Hyles, 479 F.3d 958,
968 (8th Cir. 2007) (reviewing evidentiary rulings for “clear abuse of discretion”
(emphasis added)).

       First, the United States argues the survey responses represent statements of a
party opponent, or statements of a party agent. The United States relies, in part, upon
the general rule that “[t]he actions of local government are the actions of the State,”
(quoting Avery v. Midland County, 390 U.S. 474, 480 (1968) (emphasis omitted)).
The Avery Court made this pronouncement in the context of the Fourteenth
Amendment. See id. As Missouri contends, “Unless a political subdivision of a state
is simply the arm or alter ego of the state, it may sue or be sued pursuant to the same
rules as any other corporation,” (quoting Gilliam v. City of Omaha, 524 F.2d 1013,
1015 (8th Cir. 1975) (internal citations and quotation marks omitted)). Missouri
explains the Missouri county election officials are not simply state-appointed officials
at the county level. Rather, county election officials are independently elected
officials, paid by and reporting to their respective county commissions. The United
States has directly sued the local LEAs in the past, and arguably views the LEAs, at
least to some extent, as independent entities. See, e.g., United States v. Board of
                                         -12-
Election Commissioners of the City of St. Louis, Case No. 4:02-CV-1235 (E.D. Mo.
2002) (resolved by consent decree). Because this evidentiary question is certainly
debatable, we cannot say the district court abused its considerable discretion.

       Second, the United States argues the survey responses qualify as adoptive
admissions. However, in determining whether adoption of a statement has occurred,
an examination must be conducted into the surrounding circumstances to see whether
those circumstances indicate approval of the statement. See 2 Kenneth S. Brown et
al., McCormick on Evidence 209 (6th ed. 2006). Missouri merely passed the LEAs’
survey responses along to the federal government, with no indication the state was
adopting the truth of the responses. Missouri even indicated additional time was
needed, thus demonstrating a lack of certainty in the accuracy of the responses.
Again, given the deferential standard of review, and the surrounding circumstances
here, we cannot say the district court clearly abused its discretion by declining to
recognize the survey responses as adoptive admissions.

       Finally, the United States argues the survey responses fall under either the
public records exception or the business records exception to hearsay. Fed. R. Evid.
803(8)(A) & (6). Both of these exceptions require the records demonstrate
“trustworthiness.” See Fed. R. Evid. 803(8)(A) & (6). As previously noted, the
information for the survey responses was hastily gathered, and Missouri requested an
extension of time. Declarations by numerous LEAs indicated the survey responses
were inaccurate; for example, “The Survey response . . . is incorrect . . . .,” and the
identification of unexplained discrepancies between the survey responses and
compiled data. Although the admissibility of the LEAs’ reporting statements for their
trustworthiness is arguable, the district court did not abuse its broad discretion by
allowing the LEAs’ survey responses only to demonstrate Missouri’s knowledge of
possible problems.




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IV.    CONCLUSION
       We reverse the district court’s orders granting summary judgment, and remand
for reconsideration in accordance with this opinion. The district court’s evidentiary
rulings are affirmed.
                        ______________________________




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