Project Vote, Inc. v. Kemp

Filing 38

OPINION AND ORDER. Defendant Brian Kemp's Motion to Dismiss 20 is DENIED. Plaintiff Project Vote, Inc.'s Motion for Preliminary Injunction 12 is GRANTED IN PART and DENIED IN PART. Plaintiffs Motion is GRANTED, and Defendant shall, on o r before October 7, 2016, disclose to Plaintiff the following records with respect to canceled, rejected, or pending applicants: (See Order.) The records disclosed must have redacted from them the following personalinformation: (See Order.) Plaintiff's Motion for Preliminary Injunction is DENIED with respect to the remainder of the Requested Records. Signed by Judge William S. Duffey, Jr on 9/20/2016. (bgt)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
PROJECT VOTE, INC.,
Plaintiff,
v.

1:16-cv-2445-WSD

BRIAN KEMP, in his official
capacity as Secretary of State and
Chief Election Official for the State
of Georgia,
Defendant.

OPINION AND ORDER
This matter is before the Court on Defendant Brian Kemp’s (“Defendant”)
Motion to Dismiss [20]. Also before the Court is Plaintiff Project Vote, Inc.’s
(“Plaintiff”) Motion for Preliminary Injunction [12].
I.

BACKGROUND
A.

Summary

Plaintiff seeks the disclosure, pursuant to the National Voter Registration
Act of 1993 (“NVRA”), 52 U.S.C. § 20501, et seq., of certain records relating to
the reasons Defendant rejected, canceled, or otherwise did not add voter
registration applicants to Georgia’s voter roll. Plaintiff requests these records be
produced prior to Georgia’s October 11, 2016, voter registration deadline.

Defendant contends the records Plaintiff seeks are not subject to disclosure under
the NVRA.
B.

Background of the NVRA

The NVRA became effective on January 1, 1995. In its first section,
Congress made explicit the findings and purposes underlying the act. 52 U.S.C.
§ 20501. Congress found “(1) the right of citizens of the United States to vote is a
fundamental right; (2) it is the duty of the Federal, State, and local governments to
promote the exercise of that right; and (3) discriminatory and unfair registration
laws and procedures can have a direct and damaging effect on voter participation
in elections for Federal office and disproportionately harm voter participation by
various groups, including racial minorities.” Id. § 20501(a)(1)-(3). The purposes
of the NVRA are: “(1) to establish procedures that will increase the number of
eligible citizens who register to vote in elections for Federal office; (2) to make it
possible for Federal, State, and local governments to implement this chapter in a
manner that enhances the participation of eligible citizens as voters in elections for
Federal office; (3) to protect the integrity of the electoral process; and (4) to ensure
that accurate and current voter registration rolls are maintained.” Id.
§ 201501(b)(1)-(4). The NVRA’s “primary emphasis” is to “simplify the methods
for registering to vote in federal elections and maximize such opportunities for a

2

state’s every citizen.” United States v. Louisiana, ––– F. Supp. 3d –––, 2016 WL
4055648, at *7 (M.D. La. July 26, 2016) (citing Colon-Marrero v. Velez, 813 F.3d
1, 9 n.13 (1st Cir. 2016)). It also seeks to “‘protect the integrity of the electoral
process.’” Id. (quoting Nearman v. Rosenblum, 371 P.3d 1186 (Or. 2016)).
The NVRA requires, in addition to any other method of voter registration
provided under State law, that each State shall establish the following three
procedures to register to vote in Federal elections: (1) pursuant to Section 5, “by
application made simultaneously with an application for a motor vehicle driver’s
license . . .;” (2) pursuant to Section 6, “by mail application . . .;” and (3) pursuant
to Section 7, “by application in person” at a voter registration agency (“VRA”).
52 U.S.C. § 20503(a)(1)-(3).
Section 7 defines VRAs and includes the requirement that States designate
as VRAs “all offices in the State that provide public assistance” and “all offices in
the State that provide State-funded programs primarily engaged in providing
services to persons with disabilities.” Id. § 20506(a)(2).
Section 8 of the NVRA, titled “Requirements with respect to administration
of voter registration,” addresses the States’ administration of the voter registration
lists to “ensure that any eligible voter is registered to vote in an election.” Id.
§ 20507(a)(1). It provides a registration deadline for the three registration methods

3

detailed in Sections 5-7. Id. § 20507(a)(1)(A)-(C).1 To ensure accurate voter
registration lists, the State is required to provide notice to applicants regarding the
disposition of their application and “provide that the name of a registrant may not
be removed from the official list of eligible voters” except “at the request of the
registrant[,]” “as provided by state law,” and by “a general program that makes a
reasonable effort to remove the names of ineligible voters from the official lists of
eligible voters” because of death of a registrant or a change in the registrant’s
residence. Id. § 20507(a)(3)-(4).2
Section 8 further provides that “[a]ny state program or activity to protect the
integrity of the electoral process by ensuring the maintenance of an accurate and
current voter registration roll” “shall be uniform, nondiscriminatory, and in
compliance with the Voting Rights Act of 1965[,]” and shall not remove “the name
of any person . . . by reason of the person’s failure to vote . . . .”3 Id. § 20507(b).
Subsections (c), (d), (e) and (f) provide a comprehensive process for considering
1

A state may make a reasonable effort to remove the names of eligible voters
from the rolls under Section 8(a)(4). These reasonableness requirements include
using Postal Service requirements to “identify registrants whose addresses may
have changed” if the Postal Service lists are used in accordance with the process
set out in Section 8(c)(1)(B).
2
The NVRA provides for various notification requirements and other
ancillary requirements such as protecting against the disclosure to the public of the
identity of voter registration agencies.
3
This is subject to other limitations under Section 8(c)(1)(B)(2), (d) and (e).

4

removal based on change of address and where a registrant shall cast their vote.
The process for removal of a voter must be completed “not later than 90 days prior
to the date of a primary or general election for Federal office . . . .” Id.
§ 20507(c)(2)(A). Subsection (g) of Section 8 details the process for advising
election officials of Federal convictions.4
The final substantive provision of Section 8 is subsection (i), entitled “Public
disclosure of voter registration activities.” Subsection (i) provides:
(1)

Each State shall maintain for at least 2 years and shall make
available for public inspection and, where available,
photocopying at a reasonable cost, all records concerning the
implementation of programs and activities conducted for the
purpose of ensuring the accuracy and currency of official lists
of eligible voters, except to the extent that such records relate to
a declination to register to vote or to the identity of a voter
registration agency through which any particular voter is
registered.

(2)

The records maintained pursuant to paragraph (1) shall include
lists of the names and addresses of all persons to whom notices
described in subsection (d)(2) are sent, and information
concerning whether or not each such person has responded to
the notice as of the date that inspection of the records is made.

Id. § 20507(i).5

4

Federal convictions may be used by a state to determine a person’s
eligibility to vote.
5
Section 9 provides the Election Assistance Commission authority to
promulgate regulations to develop a mail voter registration application form for

5

Section 8(d) provides that States may not remove a registrant from the voter
roll on the ground that he changed his address unless (1) the registrant confirms in
writing that he has moved outside the registrar’s jurisdiction or (2) the registrant
(i) fails to respond to a specific notice about voting and address changes, and
(ii) has not voted, or appeared to vote, during a defined time period. Id.
§ 20507(d)(1)-(2).
In Section 11, titled “Civil Enforcement and Private Right of Action,” the
NVRA provides two coequal enforcement methods. Louisiana, 2016 WL
4055648, at *8. First, Section 11 provides that the United States Attorney General
“may bring a civil action in an appropriate district court for such declaratory or
injunctive relief as is necessary to carry out this chapter.” 52 U.S.C. § 20510(a).
Second, Section 11 creates a private right of action:
(1)

A person who is aggrieved by a violation of this chapter may
provide written notice of the violation to the chief election
official of the State involved.

(2)

If the violation is not corrected within 90 days after receipt of a
notice under paragraph (1) . . ., the aggrieved person may bring

elections for federal office, and provides the requirements for the contents of the
federal mail voter registration form. Id. § 20508. Section 10 requires that “[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. Id.
§ 20509.

6

a civil action in an appropriate district court for declaratory or
injunctive relief with respect to the violation.
Id. § 20510(b)(1)-(2).6
C.

Facts
1.

Parties

Plaintiff is a “national, non-partisan, non-profit organization” with a stated
mission to “build an electorate that accurately represents the diversity of America’s
citizenry and to ensure that every eligible citizen can register, vote, and cast a
ballot that counts.” ([12.1] at 2; Compl. [1] ¶ 20). Defendant is the Georgia
Secretary of State, the chairperson of the Georgia State Election Board, and the
State’s chief election official. ([12.1] at 4). He is responsible for maintaining
Georgia’s voter registration list, which, since 2013, has been stored on an
interactive, computerized database known as ENET GVRS (the “Database”).
(Compl. ¶ 21; [18] at 3 & n.2). Georgia uses the Database to meet its obligation,
under Section 303(a) of the Help America Vote Act of 2002, to maintain “a single,
uniform, official, centralized, interactive computerized statewide voter registration
list . . . .” 52 U.S.C. § 21083(a)(1)(A).

6

Section 12 provides criminal penalties for knowingly or willfully engaging
in voter intimidation or submitting a false voter registration application. Id.
§ 20511.

7

2.

Georgia’s Voter Registration Procedure

Voter registration in Georgia is conducted at the county level. ([18] at 3).
Voter registration applications are sent to county registrars. Registrars access the
Database to update registration records for their respective counties. (Id.; Second
Decl. of S. Merritt Beaver [18.2] (“Second Beaver Decl.”) ¶ 5). Defendant does
not register voters or maintain copies of voter registration applications. (Second
Beaver Decl. ¶ 3; August 19, 2016, Dep. of S. Merritt Beaver [34.1] (“Beaver
Dep.”) at 56:7-12).
When county registrars receive a paper voter registration application, they
enter the applicant’s information into the Database. ([1.2] at 7; Beaver Dep.
at 34:15-17, 36:20-22). The applicant’s information is then electronically
“batched” overnight and electronically sent to the Department of Driver Services
(“DDS”) for verification. (Beaver Dep. at 47:25-48:3, 72:12-16). If the applicant
provides a Georgia driver’s license number, DDS uses its records to verify the
applicant’s first name, last name, date of birth, and driver’s license number. See
52 U.S.C. § 21083(a)(5)(B); (Beaver Dep. at 77:14-18). If the applicant supplies
the last four (4) digits of his Social Security Number (“SSN”), but not his driver’s
license number, DDS uses Social Security Administration (“SSA”) records to
verify the applicant’s first name, last name, date of birth, and last four (4) digits of

8

his or her SSN. (Beaver Dep. at 77:19-78:2, 97:17-21). Applying its “matching
algorithm,” DDS considers an applicant’s information verified where it exactly
matches DDS or SSA records. (Id. at 78:3-79:1; 98:3-9).7 DDS also uses its
records to verify whether an applicant is a United States citizen. (See, e.g., id. at
66:4-5, 70:11-23, 76:14-21, 98:23-99:4, 102:3-5).
Where voter registration applications are submitted online or through the
Department of Driver Services (“DDS”), they are screened by the DDS or others
and, if verified, enter the Database automatically. (Beaver Dep. at 37:1-5,
125:25-126:20). These applications are not included in the overnight batches sent
to the DDS for verification. (See id. at 125:14-126:4). Approximately sixty (60)
percent of applications are submitted through DDS. (Id. at 126:6-8). Online
applications are permitted to be submitted by individuals with a Georgia driver’s
license or Georgia identification card. (Second Beaver Decl. ¶ 7; Beaver Dep. at
59:10-17).
The results of the DDS verification process are available in the Database the
day after the application is batched and sent to DDS for review. (Beaver Dep. at
7

On August 23, 2010, the United States Department of Justice approved this
exact match registration requirement. Aaron Gould Sheinin, Justice Department
Approves Georgia Voter Registration System (Aug. 23, 2010),
http://www.ajc.com/news/news/local-govt-politics/justice-department-approvesgeorgia-voter-verifica/nQjcy/

9

72:12-17). After the verification process is complete, the county registrar reviews
the application to determine if other action is necessary or whether the applicant
can be registered as an active voter. (See id. at 73:18-22, 75:4-13).8 If DDS
cannot verify the applicant’s information, the country registrar notifies the
applicant in writing of the unverified information. (See id. at 106:6-11); O.C.G.A.
§ 21-2-220(d). If the applicant does not respond to the notification within
forty (40) days, the application is canceled. (Beaver Dep. at 106:15-22); O.C.G.A.
§ 21-2-220(d).9 If the applicant timely responds to the notification by providing
the missing information, the registrar enters the new information into the Database
and the updated application is processed through the verification process. ([1.2] at
10).
Each voter registration applicant in the Database is assigned one of the
following status designations: active, inactive, pending, rejected, or canceled.
8

That an applicant’s information is verified by the DDS does not guarantee
registration as an active voter. County registrars determine whether, and when, to
register an applicant. (Beaver Dep. at 43:3-18, 73:18-22, 75:9-11; but see id.
at 34:24-25 (contemplating a situation where “the system put [an applicant]
active”)). For example, the registrar may decline to register a DDS-verified
applicant because his application is not signed. (Id. at 43:14-18).
9
This cancellation may occur mechanically or manually. County registrars
may add an input to the Database that precludes the application from being
canceled automatically after forty (40) days. (Beaver Dep. at 107:24-108:11). It is
unclear whether there is a system in place to confirm that registrars timely and
accurately update information on the Database.

10

(Second Beaver Decl. ¶ 10). An application is “rejected” only if it states that the
applicant is younger than seventeen and a half years of age or not a United States
citizen. (Beaver Dep. at 101:7-102:2, 102:24-103:8).10 An application is
“pending” where the applicant’s information is awaiting verification, including the
receipt of information the applicant is requested to provide, and, absent unusual
circumstances, a pending applicant will be assigned an active or canceled status
within approximately forty (40) days. (Second Beaver Decl. ¶ 21; [1.14] at 5;
[1.15] at 7). Applicants removed from, or those whose applications are not
verified and not added to, the list of registered voters are assigned a status of
“canceled.”11 (See Second Beaver Decl. ¶ 11).
3.

Georgia’s Voter Registration Database

In 2013, PCC Technology, Inc. (“PCC”), a third-party vendor based in
Connecticut, developed the Database under a contract with Defendant. (Beaver
Dep. at 21:1-10, 22:6-23:1, 108:12-14). The Database stores voter registration
information about all applicants and consists of multiple linked tables. (Id. at
10

Rejected applications are nonetheless entered into the Database. (Beaver
Dep. at 103:10-11).
11
Neither the Complaint nor the record clearly defines, or distinguishes
between, “active” and “inactive” voters. These statuses are not material here
because Plaintiff seeks information only about canceled, rejected, or pending
applicants.

11

35:25-36:8). The base table holds static information such as the applicant’s name
and voter registration number. (Id. at 36:1-6). Other tables are dynamic and the
information in them, such as the reason for the applicant’s registration status,
changes as the data about the applicant changes. (Id. at 36:7-15). The base table
links to and draws information from the other tables, to create a consolidated report
of an applicant’s voter registration record. (Id. at 37:11-21).
Audit tables are one of the dynamic tables that link to the base table. These
tables record all “transactions” associated with an applicant’s record, including the
date and type of the transaction. (Id. at 55:20-56:2, 79:23-25, 88:14-15, 89:8-12).
Transactions include changes, whether manual or mechanical, to an applicant’s
address, voter registration status, felony status, or other information. (Id. at
89:17-90:6). The audit tables are “built each time” they are accessed, and can only
be viewed in the Database one registration record at a time. (Id. at 83:16-23; see
also id. at 65:23-25, 84:9-13, 130:13-131:3). The Database, as it currently
functions, cannot meaningfully aggregate audit information about multiple
applicants. (Id. at 83:16-84:8, 90:7-8). Because the audit tables record historical,
as well as the most recent, transactions in each data field, Database users can
“build a story of what happened” to each application after it was entered into the
Database. (Id. at 55:20-56:2; see also id. at 37:22-24, 89:24-90:5, 110:21-111:20).

12

Defendant contracts with PCC, which currently manages the Database, to run
customized reports or programs not already built into the system. (Id. at 24:5-19).
4.

Procedural History and Plaintiff’s Request for Records under
the NVRA

In early 2014, Plaintiff received reports that officials were asking Georgia
voters for documentary proof of United States citizenship. (Compl. ¶ 38). To
investigate these reports, on May 13, 2014, Plaintiff requested Defendant to
produce “records related to voter registration applicants not added to the official
list of eligible voters, or flagged as requiring additional documents before voting
with a regular ballot, because the applicant had not submitted satisfactory proof of
citizenship . . . .” (Compl. ¶ 39).12 Plaintiff also requested materials describing
any data codes used in the records, and any policies, manuals, or other guidance
related to citizenship verification. (Compl. ¶ 39). Plaintiff made these requests
pursuant to Section 8(i) of the NVRA. (See [1.3] at 3).

12

Plaintiff specifically requested the following information for each applicant:
(1) name, (2) contact information, (3) date of birth, (4) race, (5) voter identification
number, (6) date the applicant signed his application, (7) date the application was
received by election officials, and (8) “[a]ll records relating to the processing of the
application such as” (i) date the application was processed or entered into the
Database, (ii) current registration status, (iii) date and history of any status
changes, (iv) type, date and status of any letters sent to the applicant, and any
response received. ([1.3] at 2-3).

13

In September 2014, Plaintiff became concerned that “large numbers” of
qualified voter registration applicants were not being added to the voter roll.
(Compl. ¶ 44). As a result, on September 24, 2014, Plaintiff broadened its
May 13, 2014, information request to include information about applicants not
added to the voter roll for any reason, including reasons unrelated to citizenship.
(Compl. ¶ 45).13 Plaintiff told Defendant it wanted to review the records, and
resolve any related issues, before the 2014 United States midterm elections.
(Compl. ¶ 43).
On October 6, 2014, voter registration for the Georgia midterm elections
ended. (Compl. ¶ 48). On October 14, 2014, Defendant provided Plaintiff with a
list of approximately 14,000 applicants who were not added to the voter rolls
because their information did not match records in the DDS or SSA databases.
(Compl. ¶ 52). Defendant also provided Plaintiff with training materials related to
citizenship verification. (See Compl. ¶ 54; [1.10]). On October 15, 2015, Plaintiff
informed Defendant that the October 14, 2014, production was not, in its opinion,
13

Plaintiff requested the same information about these applicants that was
requested on May 13, 2014. ([1.11] at 4). Plaintiff repeated its requests for
“definitions for any codes used in the records, in particular the code for rejection
reasons[,]” and a list of applicants rejected because of their citizenship. (Id.).
Plaintiff also requested a statewide list of registered voters, which Defendant
promptly provided. (Id.; [1.13] at 5).

14

complete. (Compl. ¶ 53; [1.10]). Plaintiff stated the production included only a
subset of applicants not added to the voter roll, did not identify applicants rejected
because of citizenship, and did not define the data codes used in the production.
(Compl. ¶ 53).
On October 30, 2014, Plaintiff made a more specific request for the
information it wanted Defendant to provide. It asked for the following records:
(1)

A list of all rejected voters and all canceled voters in the last
two years (from October 1, 2012 to present), along with the
reasons for the rejection or cancelation of each person. . . . [and]
whether those individuals used a Social Security number or
Driver’s License number on their applications.

(2)

The complete database file underlying the above lists, also
including any voters that are not on either of the above lists. . . .

(3)

A key to all codes, fields and abbreviations used in the database
and lists, so that Project Vote can understand the stated reasons
for rejection or cancelation of individual voters.

(4)

All manuals and other guidance documents regarding the
processing of voter registration applications and use of the
Georgia Voter Registration System (GVRS). . . .

(5)

Instructions provided to programmers or other staff on how to
construct the DDS and SSN matches with GVRS as currently
used, including the algorithm used to conduct the match.

15

([1.12] at 4-5).14
On April 3, 2015, Defendant provided Plaintiff with a report that purported
to include all applicants, since October 1, 2012, who were rejected or canceled as
of March 8, 2015. (Compl. ¶ 60). Defendant created this custom report with
support from PCC, because the report could not be generated using existing
Database software. (First Decl. of S. Merritt Beaver [18.1] (“First Beaver Decl.”)
¶ 11).15 Defendant also provided Plaintiff with brief descriptions of the
cancellation codes used in the report to show the reason for cancellation. (Id.
¶ 16).16
On July 6, 2015, Plaintiff formalized its dispute by sending Defendant
written notice, under Section 11(b) of the NVRA, that Defendant had violated
14

On November 4, 2014, Georgia held the 2014 United States midterm
elections.
15
This report contained the following information for approximately 568,000
unique voter registration numbers cancelled from October 1, 2012, through
March 8, 2015: (1) county code, (2) registration number, (3) registration status,
(4) canceled date, (5) canceled reason, (6) registration date, and (7) the applicant’s
name, address, birth year, race and gender. ([18] at 5 & n.5; First Beaver Decl.
¶¶ 12, 15).
16
Defendant’s April 3, 2015, production listed one of fifteen (15) codes in
each applicant’s “Canceled Reason” data field. With one exception, the code
descriptions were between one (1) and three (3) words long. ([18.1] ¶ 16). For
example, Defendant defined “HER” as “Hearing,” “NVF” and “REJ” as “Not
Verified,” and “ERR” as “Error.” (July 13, 2016 Declaration of Brian Mellor
[12.2] (“Mellor Decl.”) ¶ 27).

16

Section 8(i) of the NVRA. ([1.13] (“NVRA Notice”)). Plaintiff’s NVRA Notice
described the records requested on October 30, 2014, and explained why it
contended that Defendant’s productions failed to satisfy those requests. Plaintiff
stated that Defendant did not provide (1) a complete list of rejected or canceled
applicants, (2) records for applicants not added to the voter roll for reasons other
than cancelation or rejection, (3) materials adequately explaining Defendant’s data
codes or the specific reason an applicant was canceled, rejected or otherwise not
added to the voter roll, (4) a copy of the Database, and (5) all written policies,
manuals or other guidance regarding the processing of voter registration
applications. (Id. at 2-6). Plaintiff also stated that it suspected “a large number of
properly completed voter registration applications submitted by qualified and
eligible citizens of Georgia have been (and may continue to be) incorrectly
rejected, canceled, stalled, or otherwise not added to the Georgia voter rolls.” (Id.
at 2).
On August 25, 2015, Defendant responded to Plaintiff’s NVRA Notice,
including by providing Plaintiff with training materials not previously produced.
(Compl. ¶ 67). In his response, Defendant also stated that (1) he previously
provided all requested information about rejected or canceled applicants, (2) he
would provide Plaintiff with a list of “pending” applicants, the only other category

17

of applicants not added to the voter roll, and (3) he would discuss Plaintiff’s
request for additional information about data codes and the reasons for applicants’
cancelation or rejection. ([1.14]).17 Defendant also advised that, because of
security and cost concerns, he would not provide a copy of the Database to
Plaintiff. (Id. at 4).
On September 30, 2015, Plaintiff sent Defendant a summary of the
following “outstanding records requests:” (1) a copy of the Database, (2) records
regarding pending applicants, (3) additional information about the data codes used
by Defendant, including because Plaintiff sought to understand the reason for each
applicants’ voter registration status, (4) training materials for programmers or data
vendors, and (5) any algorithms used to assign Database codes to the applicants.
([1.15] at 7-8).
On October 30, 2015, Defendant reiterated that he could not provide a copy
of the Database due to security and cost concerns, but would try to create a
customized report containing any specific information sought by Plaintiff,
including “whether [non-verified] applicants failed DDS or SSA verification.” (Id.
17

For example, Defendant stated that, although the Database did not
differentiate between applicants whose information failed to match records in the
DDS or SSA databases, Defendant would investigate whether that information was
available. ([1.14] at 4).

18

at 5-6). Defendant also stated that he expected to be able to provide Plaintiff with
a list of pending applicants, that he had provided Plaintiff with all existing
documents defining Defendant’s data codes, but would discuss the codes for which
Plaintiff sought additional explanation, that he had provided Plaintiff with all of
Defendant’s policies and manuals, and that Defendant did not use algorithms to
assign codes to applicants.18 (Id. at 6).
On November 12, 2015, Plaintiff and Defendant’s IT staff held a
teleconference to discuss Plaintiff’s outstanding requests and how, if at all,
Defendant could satisfy them. (Compl. ¶ 72). Defendant reiterated that he could
not provide Plaintiff with a copy of the Database. (Compl. ¶ 72). On
November 16, 2016, Plaintiff requested, as an alternative, an inventory of the data
fields and tables used in the Database, and a schematic describing any relationship
between the fields and tables. (Compl. ¶ 72; [1.16] at 4). On December 18, 2015,
Defendant produced this information to Plaintiff. (Compl. ¶ 74). The production

18

Defendant stated that “[v]oter codes are assigned manually by local election
officials.” ([1.15] at 6). Defendant has since qualified this statement by advising
that “[t]he status reason code can be entered by the county registrars or it can be a
system generated code.” (Second Beaver Dep. ¶ 13). It also appears that the
system can cancel an applicant automatically. (See Beaver Dep. at 66:9-13,
107:11-16 (describing situations where “the system will cancel” an applicant)).

19

included 340 pages of tables and data fields, and a schematic purporting to explain
their relationship. (Compl. ¶ 74).
On March 4, 2016, after reviewing Defendant’s production, Plaintiff
requested a variety of specific information about applicants who were rejected,
canceled or pending. ([1.16] at 3-5). Plaintiff identified the data fields and tables
potentially responsive to its requests. (Id.). Two months later, on May 5, 2016,
Defendant responded by accusing Plaintiff of conducting a “fishing expedition”
and of not approaching discussions “in a good faith manner.” (Id. at 1). Later that
day, Plaintiff told Defendant it would initiate legal proceedings unless Defendant
offered, on or before May 10, 2016, a proposal to meet Plaintiff’s requests. (Id.).
Plaintiff claims that Defendant did not respond. (Compl. ¶ 78).
Two months later, on July 6, 2016, Plaintiff filed its Complaint, alleging that
Defendant refuses, in violation of Section 8(i)(1) of the NVRA, to disclose the
following voter registration records requested by Plaintiff.
A.

All records relating to voter registration applications that Defendant
rejected, canceled, or otherwise did not add to the voter roll (e.g.,
applicants who are pending verification) since July 6, 2013, including
all records relating to the specific reason an applicant was rejected,
canceled, or otherwise not added to the voter roll.

B.

Defendant’s disclosure must include, but should not be limited to, the
following:

20

i.

Records reflecting whether a voter registration applicant was
rejected, canceled, or otherwise not added to the voter roll
because of a nonmatch with information in the [DDS] database
or a non-match with information in the [SSA] database, and if
so, which data field(s) resulted in the non-match.

ii.

Records sufficiently explaining the specific reason an applicant
was rejected, canceled, or otherwise not added to the voter roll,
including records sufficiently explaining the meaning of any
abbreviations or codes used to represent such reasons in
Defendant’s disclosure; and

iii.

Records reflecting the algorithm or criteria by which
information in a voter registration application is determined to
match or not match information in the Georgia DDS or SSA
databases.

(Compl. ¶ 7). Plaintiff seeks declaratory and injunctive relief, and attorneys’ fees
and expenses. (Compl. ¶¶ 90-102, Prayer for Relief).
On July 13, 2016, Plaintiff filed its Preliminary Injunction Motion, seeking
an order requiring Defendant to disclose the records requested in Plaintiff’s
Complaint. In view of Georgia’s October 11, 2016, voter registration deadline for
the 2016 general election, Plaintiff asked the Court to treat its Motion for
Preliminary Injunction as an emergency motion under Local Rule 7.2(B). On
July 20, 2016, Defendant filed his Response in Opposition to Plaintiff’s Motion for
Emergency Status Regarding Preliminary Injunction Motion [15], and, the same
day, produced to Plaintiff a digital file containing information about voter
registration applications, asserting this production rendered Plaintiff’s Motion for
21

Preliminary Injunction moot. Defendant’s July 20, 2016, production included, for
all applicants since July 6, 2013, records of applicants with: (1) a rejected or
pending status as of July 18, 2016, and (2) a canceled status as of July 18, 2016,
and which of the eleven specific cancellation reasons applied for each
cancellation.19 ([15.2]; Second Beaver Decl. ¶¶ 14-16).20 The report also included
a brief description of (1) the codes used to indicate the reasons for each applicant’s
registration status, (2) “information about the specific data that did not verify with
either the DDS or SSA database,” and (3) “information on whether the mismatch
was with the DDS or SSA database.” ([15.2] at 4-5; Second Beaver Decl. ¶ 25).
Defendant retained PCC to generate this report using “custom computer code.”
(First Beaver Decl. ¶¶ 5, 9).21 In view of Defendant’s production, the next day
Plaintiff withdrew its request for emergency treatment of its Motion for
Preliminary Injunction. ([17]).
19

Defendant inadvertently omitted “those few” canceled applicants with a
status reason other than the eleven (11) options in the Database drop-down menu.
([18.2] ¶¶ 14-16).
20
Defendant’s production included the following information for 646,332
unique voter registration numbers: (1) registration number, (2) registration status,
(3) status reason, (4) reason code, (5) date of cancellation, (6) action, (7) which
data was verified and not verified by the DDS or SSA, (8) county name, and
(9) the applicant’s name, year of birth, address, race and gender. ([18.1] ¶¶ 5, 7).
21
PCC worked on the project for sixty-four (64) hours and charged Defendant
$5,120 for its work. ([18.1] ¶ 10; Beaver Dep. at 124:25-125:7).

22

On August 3, 2016, Defendant filed his Motion to Dismiss [20] and his
Motion to Stay All Discovery Related Activities [21] until Defendant’s Motion to
Dismiss is decided.
On August 9, 2016, Plaintiff filed its Motion for Expedited Discovery [24],
requesting to conduct a deposition, under Federal Rule of Civil Procedure 30(b)(6)
(“Rule 30(b)(6)”), “to test Defendant’s assertions regarding the sufficiency and
completeness of his July 18, 2016 [sic] production and the meaning of materials
produced at that time.” ([24] at 2).22 Plaintiff sought to depose Defendant (i) on
the meaning of undefined codes in Defendant’s July 2016 production, (ii) on why
Defendant has not produced certain requested records,23 and (iii) “to test
Defendant’s claim that records he has not produced are wholly unavailable” and to
ask whether other available records contain some or all of the same information.
([24] at 6-9).
22

Defendant represented that the production, delivered to Plaintiff on
July 20, 2016, was current as of July 18, 2016. ([15] at 6).
23
For example, Plaintiff sought to understand why Defendant did not produce
the following information for applicants not added to the voter roll: (1) the date
the applicant signed his application, (2) the date the application was received by
election officials, (3) the applicant’s telephone number, and (4) records relating to
the processing of the application, including (i) the date it was processed or entered
into the Database; (ii) the history of any change in the applicant’s registration
status, and (iii) the type, date and status of any letters mailed to the applicant. ([24]
at 7).

23

On August 10, 2016, the Court ordered [25] Plaintiff to identify (i) the
specific undefined codes for which Plaintiff sought an explanation, (ii) the specific
category or categories of records that Plaintiff requested but which Plaintiff
claimed were not produced, and (iii) the requested records that, according to
Plaintiff, Defendant claimed were unavailable. On August 11, 2016, Plaintiff filed
its Response to Order to Produce Information [26], providing the information
requested by the Court. The next day, the Court granted [29] Plaintiff’s Motion for
Expedited Discovery, temporarily relieved the parties of their obligation to comply
with certain Local Rules processing requirements, and denied, as moot,
Defendant’s Motion to Stay All Discovery Related Activities. The Court permitted
Plaintiff to conduct a Rule 30(b)(6) deposition, on or before August 22, 2016, on
the narrowly defined categories that Plaintiff requested. The Court also permitted
Plaintiff to file, on or before August 29, 2016, a supplement to its Reply in Support
of its Motion for Preliminary Injunction [28].
On August 19, 2016, Plaintiff deposed S. Merritt Beaver, Defendant’s Chief
Information Officer, on the categories identified in the Court’s August 12, 2016,
Order. (Beaver Dep. at 16:8-10). On August 29, 2016, Plaintiff filed its
Supplemental Reply in Support of its Motion for Preliminary Injunction [33]. In it,
Plaintiff identifies, for canceled, rejected, or pending applicants, three categories of

24

records it contends Defendant is required, but has thus far failed, to produce. The
first category of requested records includes records in the Database that Defendant
has not produced because doing so would be burdensome. Plaintiff includes in this
category records reflecting:
(1)

The date voter registration applications were signed by an
applicant.

(2)

The date applications were entered into the Database.

(3)

Each change in an applicant’s voter registration status.

(4)

The creation date of Database-generated letters to applicants.

(5)

Whether an election official manually, instead of mechanically,
changed the status of one or more applicants.

(6)

Reasons other than the most recent reason why an applicant
was rejected, canceled, or otherwise not added to the voter roll.

(7)

The specific reason why applicants, assigned a status reason of
“Error,” “Hearing,” or “Reject,” were canceled.

([33] at 6-7).
The second category of requested records includes records maintained in the
Database that Defendant has not produced. Plaintiff lists the following records in
this category:
(1)

Records reflecting applicants’ telephone numbers, if listed on
their applications.

25

(2)

Records for canceled applicants with a status reason other than
one of the eleven options in the drop-down menu in the
Database.

(3)

Copies of Database-generated letters sent to applicants.

([33] at 9).
The third category of requested records are those not stored in the Database,
but which Plaintiff maintains Defendant is nevertheless required to produce.
Plaintiff lists the following records in this category:
(1)

Records reflecting the date a voter registration application was
received by election officials.

(2)

The date and disposition of, and any response to, all letters sent
to applicants.

(3)

Copies of letters, not generated by the Database, that were sent
to applicants.

([33] at 9-10). Together, these three (3) categories of records, pertaining to
canceled, rejected, or pending applicants, are defined as the “Requested
Records.”

26

II.

SECTION 8(i)
The parties rely on Section 8(i) of the NVRA as the basis for their respective

motions. Defendant seeks to dismiss on the grounds that Section 8(i) does not
require the disclosure of the Requested Records.24 Plaintiff seeks, under Section
8(i), to require Defendant to disclose the Requested Records. The Court begins its
analysis by considering whether the information Plaintiff claims is required to be
disclosed is subject to disclosure under Section 8(i).
A.

Principles of Statutory Construction

“The first step of statutory construction is to determine whether the language
of the statute, when considered in context, is plain.” Wachovia Bank, N.A.
v. United States, 455 F.3d 1261, 1267 (11th Cir. 2006) (citing Bautista v. Star
Cruises, 396 F.3d 1289, 1295 (11th Cir. 2005)). In the absence of a statutory
definition, a court must look to the common and ordinary meaning of a word.
See Animal Legal Def. Fund v. U.S. Dep’t of Agric., 789 F.3d 1206, 1216 (11th
Cir. 2015); Consol. Bank, N.A., Hialeah, Fla. v. U.S. Dep’t of Treasury, Office of
Comptroller of Currency, 118 F.3d 1461, 1463 (11th Cir. 1997)) (“As a basic rule

24

Defendant’s arguments center on whether the Database, which contains the
majority of the Requested Records, is itself a record. Plaintiff’s Requested
Records do not seek the Database, and, to the extent Plaintiff previously sought the
Database, that issue is not now before the Court. (See [33] at 6-10).

27

of statutory interpretation, we read the statute using the normal meanings of its
words.”). “‘[T]to determine the plain meaning of the statute’ we must consider
both ‘the particular statutory language at issue’ and ‘the language and design of the
statute as a whole.’” Wachovia, 455 F.3d at 1267-68 (internal quotation marks
omitted) (quoting Tello v. Dean Witter Reynolds, Inc., 410 F.3d 1275, 1278 (11th
Cir. 2005)); see also Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997) (the
plain meaning of a statutory provision is “determined by reference to the language
itself, the specific context in which that language is used, and the broader context
of the statute as a whole”); Burlison v. McDonald’s Corp., 455 F.3d 1242, 1247
(11th Cir. 2006) (“[S]tatutes should be read a consistent whole[.]”). The Eleventh
Circuit has emphasized that, in statutory construction, “context is king,” and that
“[c]ourts should avoid slicing a single word from a sentence, mounting it on a
definitional slide, and putting it under a microscope in an attempt to discern the
meaning of an entire statutory provision.” Wachovia, 455 F.3d at 1267.
“If the meaning of the statutory language in context is plain, we go no
further.” Id. (citing United States v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998)).
“Statutory language is ambiguous if it is susceptible to more than one reasonable
interpretation.” Med. Transp. Mgmt. Corp. v. Comm’r of I.R.S., 506 F.3d 1364,
1368 (11th Cir. 2007). “Only when a statute’s meaning is ‘inescapably

28

ambiguous,’ will this Court turn to legislative history to aid in interpretation.”
United States v. Williams, 790 F.3d 1240, 1245 (11th Cir. 2015) (quoting United
States v. Veal, 153 F.3d 1233, 1245 (11th Cir. 1998), abrogated on other grounds
by Fowler v. United States, 563 U.S. 668 (2011))).
B.

Analysis

The challenge in this case is interpreting, as a matter of first impression in
our Circuit, the scope of the Section 8(i) disclosure provision. To resolve whether
the NVRA requires Defendant to disclose the Requested Records, the Court must
determine: (1) whether the Requested Records are “records” within the meaning
of Section 8(i); (2) whether the Requested Records “concern[] the implementation
of programs and activities conducted for the purpose of ensuring the accuracy and
currency of official lists of eligible voters,” 52 U.S.C. § 20507(i)(1), and
(3) whether each item of the Requested Records is required to be disclosed. The
analysis begins with the meaning of specific terms in Section 8(i).
1.

“Records”

Subsection 8(i)(1) requires a State to maintain and “make available for
public inspection . . . all records concerning the implementation of programs and
activities conducted for the purpose of ensuring the accuracy and currency of
official lists of eligible voters.” 52 U.S.C. § 20507(i)(1) (emphasis added).

29

Defendant implicitly argues that the Requested Records maintained in electronic
format on the Database are not “records,” including because that term is limited to
physical documents. (See [18] at 19; [20.1] at 11). Plaintiff argues the plain
language of the statute does not exclude data maintained in an electronic database.
([28] at 3-10).
The statute does not define the term “records,” and the Court thus begins
with the common and ordinary meaning of the term. See Animal Legal Def. Fund,
789 F.3d at 1216. Dictionaries define “record” as:
 “something that serves to record,” such as “a piece of writing that
recounts or attests to something.” Webster’s Third New International
Dictionary 1898 (2002);
 “an account in writing or the like preserving the memory or knowledge of
facts or events.” Webster’s Encyclopedic Unabridged Dictionary of the
English Language 1612 (2001);
 “[a]nything preserving information and constituting a piece of evidence
about past events.” Oxford English Dictionary, available at
http://www.oed.com;
 information “stored in an electronic or other medium.” Black’s Law
Dictionary 1465 (10th ed. 2014).
The Court concludes the Requested Records are plainly “records” for the purposes
of Section 8(i), including information in electronic form. Defendant’s implicit
argument that “records” are limited to physical materials is inconsistent with the
common definitions of records, and specifically is contradicted by the Black’s Law
30

Dictionary definition.25 The Court also disagrees with Defendant’s
characterization of Plaintiff’s Requested Records residing on the Database as a
request for “data formatted in a manner of Plaintiff’s choosing,” which Defendant
maintains falls outside the definition of a record. ([18] at 19). Plaintiff, however,
does not seek the Requested Records in any particular format. (See [33] at 13-14).
That Defendant may, due to the manner in which the Requested Records are
stored, experience technical burdens in making the records available, does not
change that the Requested Records are preserved accounts of information or
evidence of past events.
The context of Section 8(i) also supports the conclusion that “records”
include the electronic Requested Records. For instance, Section 8(i) uses the word
“all” as a modifier to the word “records,” suggesting an “expansive meaning
because ‘all’ is a term of great breadth.” Project Vote/Voting for Am., Inc.
v. Long, 682 F.3d 331, 336 (4th Cir. 2012) (internal quotation marks omitted)
(quoting Nat’l Coal. for Students with Disabilities Educ. & Legal Def.
25

If Congress wanted to exclude electronic materials from the disclosure
requirements of Section 8(i), it could have done so. The Court is not permitted to
insert limiting language, such as “physical” or “non-electronic,” into the statute.
See Mamani v. Berzain, 825 F.3d 1304, 1310 (11th Cir. 2016) (“[W]e are not
allowed to add or subtract words from a statute.” (quoting Houston v. Marod
Supermarkets, Inc., 733 F.3d 1323, 1334 (11th Cir. 2013)).

31

Fund v. Allen, 152 F.3d 283, 290 (4th Cir. 1998)). Interpreting “records” to
exclude information contained within electronic databases also would allow States
to circumvent their NVRA disclosure obligations simply by choosing to store
information in a particular manner. Given the ubiquity and ease of electronic
storage, this would effectively render Section 8(i) a nullity. See United States
v. Irey, 612 F.3d 1160, 1221 n.42 (11th Cir. 2010) (en banc) (“[W]e will not
interpret the statute in a way that effectively renders it a nullity[.]”); see also
Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982) (“[I]nterpretations
of a statute which would produce absurd results are to be avoided if alternative
interpretations consistent with the legislative purpose are available.”). The fact is
that, in today’s age, past events and the preservation of past facts are more often
stored electronically rather than in hard copy documents. This is especially true of
large collections of information.
Defendant’s narrow interpretation of “records”—which would reduce the
scope of information available to the public—also is inconsistent with the statutory
purposes of the NVRA, which include “protect[ing] the integrity of the electoral
process” and “ensur[ing] that accurate and current voter registration rolls are
maintained.” 52 U.S.C. § 20501(b); see Miljkovic v. Shafritz & Dinkin, P.A.,
791 F.3d 1291, 1303 (11th Cir. 2015) (“A statute should be interpreted so as to

32

effect its purpose.” (internal quotation marks omitted) (quoting Isbrandtsen Co.
v. Johnson, 343 U.S. 779, 783 (1952))). Public access to a broad scope of
information that shows how a State makes voter eligibility determinations furthers
these goals. The Court finds the Requested Records are “records” under Section
8(i).26, 27
2.

“Implementation of Programs and Activities”

Section 8(i) requires disclosure of only those records that “concern[] the
implementation of programs and activities” to ensure the accurate and current
26

Defendant also argues that electronic materials are not records because
Section 8(i) requires records to be “maintain[ed] for at least 2 years,” which
Defendant appears to interpret to mean that records are physical “documents that
can be destroyed after two years.” ([18] at 19; [20.1] at 16). The NVRA, however,
does not address the destruction of documents and, even if it did, electronic data
can be deleted and discarded just as paper documents can be shredded. Defendant
argues that “records” has a limited meaning because Section 8(i) requires records
to be made available for “photocopying.” This misreads the statute, which requires
public inspection of all records but requires photocopying only “where available,”
again suggesting that “records” are not limited to physical documents that can be
photocopied.
27
Defendant, at times, appears to broaden his definition of “records” to include
“documents or files capable of being copied, or a digital file capable of printing
and copying.” ([20.1] at 16). Setting aside whether this definition is supported by
the text of the statute—and the Court finds it does not—Defendant’s own
definition appears to include the Requested Records contained within the Database.
Defendant’s Rule 30(b)(6) deponent, S. Merritt Beaver, testified that a user of the
Database could take screenshots of each individual record stored on the Database.
(See Beaver Dep. at 130:19-131:3). These screenshots functionally serve as
“digital file[s] capable of printing and copying” under Defendant’s definition of
records. ([20.1] at 16).

33

official lists of eligible voters. 52 U.S.C. § 20507(i)(1). There is a significant
dispute between the parties over the meaning of this requirement. That meaning is
the principal interpretation issue in this case. Although the parties frame their
arguments differently, the Court finds the central question is whether Section 8(i)
requires disclosure of records pertaining to individual applicants.28
a)

Common and Ordinary Meaning of Terms

The Court begins with the common and ordinary meaning of the terms
“concern,” “implementation,” “programs,” and “activities.” The word “concern” is
a broad term meaning:
 “to relate or refer to,” to “be about,” or “to have an influence on.”
Webster’s Third New International Dictionary 470 (2002);
 “to relate to; be connected with; be of interest or important to; affect.”
Webster’s Encyclopedic Unabridged Dictionary 423 (2001).
 “to refer or relate to; to be about.” Oxford English Dictionary, available
at http://www.oed.com.
To “implement” means:

28

During the period before this action was filed, Defendant voluntarily
produced records to Plaintiff while the parties were in less adversarial postures. To
the extent, if any, that applicant-specific information was disclosed, this fact is not
controlling on the Court’s interpretation or the legal requirements of Section 8(i),
although the disclosure may be considered in evaluating what remedy, if any, to
provide.

34

 to “carry out,” “esp[ecially] to give practical effect to and ensure of
actual fulfillment by concrete measures.” Webster’s Third New
International Dictionary 1134 (2002);
 “to fulfill; perform; carry out,” or “to put into effect according to or by
means of a definite plan or procedure.” Webster’s Encyclopedic
Unabridged Dictionary 961 (2001);
 to “complete, perform, carry into effect.” Oxford English Dictionary,
available at http://www.oed.com.
A “program” is:
 “a schedule or system under which action may be taken towards a desired
goal.” Webster’s Third New International Dictionary 1812 (2002);


“a plan of action to accomplish a specified end” or “a plan or schedule of
activities, procedures, etc., to be followed.” Webster’s Encyclopedic
Unabridged Dictionary 1546 (2001);

 “a plan or scheme of any intended proceedings.” Oxford English
Dictionary, available at http://www.oed.com.
An “activity” is:
 a “natural or normal function or operation.” Webster’s Third New
International Dictionary 22 (2002);
 “a specific deed, action, function, or sphere or action.” Webster’s
Encyclopedic Unabridged Dictionary of the English Language 20 (2001);
 “[a] project, task, or exercise” Oxford English Dictionary, available at
http://www.oed.com.
Records under Section 8(i) thus must relate to fulfilling, performing, carrying out,
or putting into effect by means of a definite plan or procedure (1) systems or

35

(2) specific actions to ensure that the State’s official list of individuals entitled to
vote is current and accurate.
The Requested Records generally concern the State’s evaluation and
processing of voter registration applications to determine whether applicants
should be added to the voter rolls. The process of reviewing and determining the
eligibility of voter registration applications is a “program” because it is
systematically carried out in service of a specified end—maintenance of the voter
rolls—and it is an “activity” because it is a specific action or function undertaken
by the county registrars. See Long, 682 F.3d at 335 (“[T]he process of reviewing
voter registration applications is a ‘program’ and ‘activity.’”).
The specific question is what purpose the word “implementation” has in the
Section 8(i) phrase “implementation of programs and activities.” Depending on
the interpretation of “implement,” the Requested Records may or may not fall
under the common and ordinary meaning of Section 8(i). Under one interpretation,
the records required to be disclosed under Section 8(i) are those that relate to the
“procedures” a State “put into effect” to ensure the accuracy and currency of
official lists of eligible voters. See Webster’s Encyclopedic Unabridged
Dictionary 961 (2001). In other words, the records must relate to the processes a
State has in place, rather than how it processed any particular voter application.

36

Under another interpretation, disclosure of records that concern the “carrying out”
or “performance” of any process or specific act to ensure the accuracy and
currency of official lists of eligible voters is required. See Webster’s Third
International Dictionary 1134 (2002). This interpretation encompasses records
pertaining to specific voter applicants, because the processing of an individual
application is an act carried out to determine voter eligibility. To determine which
of these meanings applies, the Court next considers the language in the context of
the NVRA as a whole.
b)

Interpretation Context

Congress passed the NVRA after finding that “discriminatory and unfair
registration laws and procedures can have a direct and damaging effect on voter
participation . . . .” 52 U.S.C. § 20501(a)(3) (emphasis added). Courts interpreting
the NVRA have found that its “primary emphasis” is to “simplify the methods for
registering to vote in federal elections and maximize such opportunities for a
state’s every citizen.” Louisiana, 2016 WL 4055648, at *7 (emphasis added)
(citing Colon-Marrero, 813 F.3d at 9 n.13). If Congress intended a broad
disclosure requirement encompassing information more granular than process
information, it is unclear why it chose to include the word “implementation” at all.
See Lowery v. Ala. Power Co., 483 F.3d 1184, 1204 (11th Cir. 2007) (“[W]e must

37

construe [a] statute to give effect, if possible, to every word and clause.”). Without
the word, the provision would be broader, requiring disclosure simply of “all
records relating to programs and activities . . . .” It is thus reasonable to interpret
“implementation” as restricting the scope of the records required to be disclosed.
Interpreting Section 8(i) to require disclosure of records relating to the processes a
State implements to fulfill its NVRA obligations is in harmony with this statutory
context.
Other context, however, can be read to support that Section 8(i) requires
disclosure of individual applicant information. Paragraph 2 of Section 8(i)
specifies that “[t]he records maintained pursuant to paragraph (1) shall include lists
of the names and addresses of all persons to whom notices described in
subsection (d)(2) are sent, and information concerning whether or not each such
person has responded to the notice as of the date that inspection of the records is
made.” 52 U.S.C. § 20507(i)(2). By its terms, this paragraph includes a
compilation of information along with information specific to the individuals
included in the compiled list. The word “include” itself means “to place, list, or
rate as a part or component of a whole or of a larger group, class, or aggregate.”
Webster’s Third New International Dictionary 1143 (2002). Paragraph 2
specifically notes the “records maintained pursuant to paragraph (1) shall include”

38

certain names and addresses, supporting that the records required to be disclosed in
paragraph (1) encompass information regarding individual voter applicants. See
P.C. Pfeiffer Co., Inc. v. Ford, 444 U.S. 69, 77 n.7 (1979) (“We understand the
word ‘including’ to indicate that ‘longshoring operations’ are a part of the larger
group of activities that make up ‘maritime employment.’”); Long, 682 F.3d at 337
(“Courts have repeatedly indicated that ‘shall include’ is not equivalent to ‘limited
to.’” (citing Nat’l Fed’n of the Blind v. FTC, 420 F.3d 331, 338 (4th Cir. 2005))).
If Congress intended paragraph (2) to be read exclusively rather than inclusively, it
seems Congress would have included different words such as “in addition to” or
“also.”
The exceptions to the broad “all records” disclosure requirement in
Section 8(i) also support that Section 8(i) requires disclosure of individual
applicant information. Section 8(i) provides that disclosure is not required for
records that relate to: (1) “a declination to register to vote” or (2) “the identity of a
voter registration agency through which any particular voter is registered.”
52 U.S.C. § 20507(i)(1). The second exception is straightforward: a disclosure of
where a particular applicant submitted a voter registration form—for instance,
whether the form was submitted to a State office providing assistance to the poor
or at a DMV—might disclose information about an applicant that is stigmatizing or

39

might otherwise adversely reflect upon a particular applicant.29 It thus can be
argued that if Section 8(i) does not require disclosure of individual applicant
records, the NVRA would not prevent States from disclosing records that may
reveal the identity of the VRAs and the registration applicants they may serve.
This interpretation presupposes that Section 8(i) requires the disclosure of
individual applicant information.
The first exception similarly presupposes that Section 8(i) requires
disclosure of individual applicant information. The first exception bars disclosure
of records relating to a “declination to register to vote.” It is reasonable to read this
provision as barring information regarding an individual’s personal decision not to
register to vote, including because other provisions of the NVRA relate to
processes and requirements with respect to an individual’s choice whether to
register. See, e.g., 52 U.S.C. § 20506(a)(6)(A)(ii), (a)(6)(B)(iii), (a)(7). For
example, Section 7(a)(6)(C) provides that, if a VRA is an office that provides
service or assistance in addition to conducting voter registration, such as to
disabled persons, the VRA must “provide to each applicant who does not decline
29

Section 7 of the NVRA specifically defines a VRA, describes the duties of
each VRA, and requires states to designate as VRAs “all offices in the State that
provide public assistance” and “all offices in the State that provide State-funded
programs primarily engaged in providing services to persons with disabilities.”
52 U.S.C. § 20506(a)(2).

40

to register to vote the same degree of assistance [in completing the registration
form] as is provided by the office with regard to the completion of its own
forms . . . .” Id. § 20506(a)(6)(C) (emphasis added). Section 7(a)(7) provides that
“[n]o information relating to a declination to register to vote in connection with an
application made at an office described in paragraph (6) may be used for any
purpose other than voter registration.” Id. § 20506(a)(7) (emphasis added). It is
clear that Section 7(a)(7) intends to prevent information relating to any particular
individual’s declination to register to vote from being used for improper
purposes.30 The same “declination to register to vote” language is found in the first
exception to Section 8(i), and should be read, consistent with the Section 7
provisions, to refer to information regarding individual applicants’ declinations to
vote. See Burlison, 455 F.3d at 1247 (repetition of a word “suggests that Congress
intended that the word mean only one thing”).
The exceptions to Section 8(i) presuppose that records required to be
disclosed include records regarding individual voter applicants.31

30

Disclosure that a particular applicant decided not to register might cause that
person to be targeted by registration advocacy groups.
31
The disclosure of applicant-specific information raises the separate issue of
the extent to which personal information about applicants is required to be
disclosed. The Court addresses this personal privacy issue later.

41

c)

Statutory Purposes

Congress enacted the NVRA to “increase the number of eligible citizens
who register to vote” in Federal elections, “enhance[] the participation of eligible
citizens as voters,” “protect the integrity of the electoral process,” and “ensure that
accurate and current voter registration rolls are maintained.” 52 U.S.C.
§ 20501(b). These provisions show that the NVRA was “designed to ensure that
eligible applicants in fact are registered and that ineligible registrants are removed
from the States’ official voter lists.” True the Vote, 43 F. Supp. 3d at 721.
Limiting the disclosure requirement to a set of general process implementation
records without the production of records to show the results of the processes and
activities put into place would hinder the public’s ability to “protect the integrity of
the electoral process” and to ensure voting regulation programs and activities are
implemented in a way that accomplishes the purposes of the statute and are not
executed in a manner that is “discriminatory and unfair.” See 52 U.S.C. § 20501.
d)

Legislative History

Where there is an ambiguity regarding the meaning of a statute, the statute’s
legislative history may be consulted to address the ambiguity. While there is no
ambiguity here, even if there was, the scant legislative history relevant to Section
8(i) that the parties identify, and that the Court has been able to locate, supports

42

that specific application information falls within the Section 8(i) disclosure
requirement. Senate Report No. 103-6 states, with respect to Section 8(i):
Provisions of this Act pertaining to voter registration programs require
that information regarding a person’s declination to register not be
used for any purpose other than registration. There was also concern
that information not be made public as to what voters registered at a
particularly agency, such as a welfare or unemployment office.
Therefore, these records may not contain any information relating to a
declination to register or the identity of a voter registration agency
through which any particular voter is registered, or a list of those
persons registered through a particular agency.
S. Rep. No. 103-6, at 35 (1993) (emphasis added). That Congress, in drafting the
exceptions to the disclosure requirements in Section 8(i), expressed some concern
that information about “a person’s declination to register” and “what voters
registered at a particular agency” not be made public supports the Court’s reading
of the exceptions, and supports that the exceptions anticipated that Section 8(i)
requires the disclosure of information about individual voter applicants.
The Court concludes that, in addition to requiring records regarding the
processes a state implements to ensure the accuracy and currency of voter rolls,
considering the NVRA as a consistent whole, individual applicant records are
encompassed by the Section 8(i) disclosure requirements.32

32

Defendant argues that Section 8(i) does not require disclosure of the
Requested Records because the provision is limited to information about, as

43

3.

Applying the Requirements of Section 8(i) to the Requested
Records

The Court next applies this interpretation of Section 8(i) to Plaintiff’s
Requested Records. The Requested Records are:
(1)

The date voter registration applications were signed by an
applicant.

(2)

The date applications were entered into the Database.

(3)

Each change in an applicant’s voter registration status.

(4)

The creation date of Database-generated letters to applicants.

(5)

Whether an election official manually, instead of mechanically,
changed the status of one or more applicants.

(6)

Reasons other than the most recent reason why an applicant
was rejected, canceled, or otherwise not added to the voter roll.

Defendant characterizes it, “list maintenance processes” for current or
previously-registered voters. (See [18] at 17-19 (“[T]he disclosure provision was
intended to provide transparency in the removal of voters from registration
lists . . . .”); [20.1] at 14-15, 18-21). The plain language of the statute does not
limit the disclosure requirement in the manner Defendant suggests. The Court’s
analysis of the common and ordinary meaning of the provisions of the NVRA
supports that Section 8(i) requires disclosure of records concerning both
unregistered applicants and registered voters. See Long, 682 F.3d at 335-36
(rejecting argument that Section 8(i) does not encompass rejected voter
applications); Long, 752 F. Supp. 2d at 705-706 (same); see also True the Vote,
43 F. Supp. 3d at 723 (finding Mississippi’s Voter Roll, which includes
information regarding active, inactive, pending, purged, and rejected voters, is a
record required to be disclosed under Section 8(i)).

44

(7)

The specific reason why applicants, assigned a status reason of
“Error,” “Hearing,” or “Reject,” were canceled.

(8)

Records reflecting applicants’ telephone numbers, if listed on
their applications.

(9)

Records for canceled applicants with a status reason other than
one of the eleven options in the drop-down menu in the
Database.

(10) Copies of Database-generated letters sent to applicants.
(11) Records reflecting the date a voter registration application was
received by election officials.
(12) The date and disposition of, and any response to, all letters sent
to applicants.
(13) Copies of letters, not generated by the Database, that were sent
to applicants.
Plaintiff contends each of these categories of records “relate to Defendant’s
process of determining whether voter registration applicants are eligible to be
added to the voter roll, and in particular the reasons such voters are not added or
removed from the voter roll.” ([33] at 2). There are, however, certain categories
of Requested Records that Plaintiff has not shown are related to the
implementation of programs and activities conducted for the purpose of ensuring
the accuracy and currency of voter rolls. This showing has not been made for
these categories even though Plaintiff was allowed to conduct a Rule 30(b)(6)
deposition of the person knowledgeable about the Database and information in it.

45

The list also includes records the disclosure of which would violate the privacy
interests of applicants. Against this backdrop, the Court considers the Requested
Records categories.
With respect to categories (1) through (7), Mr. Beaver testified these records
are stored in one or more of the Database’s audit tables. (See Beaver Dep. at
79:25-80:6; 81:25-82:4; 89:23-90:5; 92:12-25; 95:1-96:1; 89:18-22; 123:25-124:5;
26:2-12, 89:23-90:5; 56:13-57:533). Plaintiff contends these categories “concern
the processing of voter registration applicants and are central to Defendant’s
maintenance of an accurate and updated voter roll.” ([33] at 8). Regarding
Category (1), Mr. Beaver testified that signature date on voter registration
applications is relevant to the processing of applications because an individual
“could send multiple paper applications in . . . [so t]he date that’s signed on an
application is recorded.” (See Beaver Dep. at 79:21-80:1). Mr. Beaver testified
that Category (2), the date the applications were entered into the Database, is “part
of the audit history” of the Database. (Beaver Dep. at 81:17-21). These two
Categories of records thus concern the processing of applications.
33

Mr. Beaver did not specify the exact location in the Database of the
“comment box” that could potentially contain specific reasons for cancelation of
voters or applicants assigned to a status of “Canceled” and a status reason of
“Error,” “Hearing,” or “Reject.”

46

With respect to Category (4), the Court finds that the creation date of
Database-generated letters to applicants falls under Section 8(i) only if those letters
concern the status or completeness of an individual’s application or otherwise
relate to the evaluation of an individual’s eligibility to vote.34
With respect to Categories (5) and (7), those records, on their face, concern
the State’s processing of voter registration applicants to the extent the records are
maintained on the Database. Categories (3) and (6) also fall under Section 8(i).
With respect to categories (8) through (10), Mr. Beaver testified these
records also are stored on the Database. (See Beaver Dep. at 81:12-15; 67:7-68:4;
69:11-17; 93:24-94:1). Category (8) seeks records reflecting applicants’ and
voters’ telephone numbers, if provided on their applications. There currently is
nothing in the record to show that any telephone number information is relevant or
necessary to consideration of voter eligibility. The Court finds there is insufficient
information at this time to find that telephone numbers fall under the disclosure
requirement of Section 8(i). Category (9), on the other hand, seeks records that, on
their face, are relevant to activities carried out to determine voter eligibility.
Category (10), similar to Category (4), falls under Section 8(i) only to the extent
34

For instance, a letter sent to an individual indicating his or her proper voting
location is not an action carried out to ensure the accuracy or currency of voter
rolls.

47

the letters concern the status or completeness of an individual’s application or
otherwise relate to the evaluation of an individual’s eligibility to vote.
Plaintiff contends, with respect to Categories (11) through (13), that
“Defendant has not confirmed whether these records are stored in another location
and could be made available, even though Federal law mandates that they be
maintained for at least two years.” ([33] at 10). Plaintiff’s argument presupposes
that the “records” requested in Category (11) ever existed in the first place—that
is, that information regarding the date a voter registration application was received
by election officials was ever preserved in a written account. Mr. Beaver testified
that such information is not recorded. (Beaver Dep. at 80:7-15). Plaintiff
implicitly argues, without any legal support or reasoning, that Section 8(i)
mandates that Defendant must create such a record by documenting the
information.35 Even if such a record ever existed, it is not clear at this point
whether information pertaining to the date a voter registration application was
received has anything to do with the processing of a voter application to determine

35

Whether a record is required to be maintained is different from a claim that a
maintained record is required to be disclosed. The question whether Defendant
failed to maintain one or more records is not presently before the Court.

48

voter eligibility.36 As to Categories (12) and (13), letters sent to applicants,
whether Database-generated or otherwise, fall under Section 8(i) to the extent the
letters concern the status or completeness of an individual’s application or
otherwise relate to the evaluation of an individual’s eligibility to vote. The Court
notes that Plaintiff’s Category (12) request for records reflecting the “disposition”
of letters or notices sent to applicants is ambiguous. Without more information,
the Court is unable to determine whether this “disposition” information is required
to be disclosed under Section 8(i).
The Court finds that Categories (8), (11), and the Category (12) request for
records reflecting the “disposition” of letters or notices sent to applicants do not
appear, at this time, to fall under the disclosure requirements of Section 8(i). The
remainder of the Categories, as modified above, fall under Section 8(i), and the
Court refers to these records, which are required to be disclosed, as the “Section
8(i) Records.”
Having determined that the Section 8(i) Records are subject to disclosure,
the Court considers the scope of the disclosure required and specifically whether
personal information may be redacted to preserve applicant privacy.
36

It is possible the date an application was received is relevant to determining
whether the application was timely filed. The record does not show whether this is
the case.

49

4.

Redactions to Applicant Information

Though the Section 8(i) Records do not explicitly seek sensitive private
information about an applicant, such as Social Security numbers or birth dates, it is
certain that such information is contained in the records sought. Section 8(i)
requires the disclosure of individual voter registration records, but it does not
require the disclosure of sensitive information that implicates special privacy
concerns. See True the Vote, 43 F. Supp. 3d at 733-39 (noting distinction between
making a record available and redacting discrete confidential information
contained within a given record, and concluding that the “NVRA does not require
disclosure of unredacted documents”). This conclusion is supported by the text
and purposes of the NVRA, and privacy considerations found in Federal and State
laws.
Paragraph 2 of Section 8(i) specifies that “[t]he records maintained pursuant
to paragraph (1) shall include lists of the names and addresses of all persons to
whom notices described in subsection (d)(2) are sent, and information concerning
whether or not each such person has responded to the notice as of the date that
inspection of the records is made.” 52 U.S.C. § 20507(i)(2). That Congress
specifically required disclosure only of the names and addresses of this category of

50

applicants suggests other types of information may be protected from Section 8(i)’s
disclosure requirement.
Other Federal statutes generally recognize the confidentiality of certain voter
information. As the True the Vote court observed, the Civil Rights Act of 1960,
42 U.S.C. § 1974, requires State elections officers to preserve “all records and
papers which come into [their] possession relating to any application,
registration . . . or other act requisite to voting in such election.” 43 F. Supp. 3d at
734 (emphasis omitted) (quoting 42 U.S.C. § 197437). “Congress authorized only
the Attorney General to inspect these documents, but even he may not disclose any
record except to Congress, other government agencies, or in a court proceeding or
when otherwise ordered to do so by a court.” Id. at 734-35 (citing 42 U.S.C.
§§ 1974b, 1974c38). If redaction of certain sensitive information is not permitted,
Section 8(i) would effectively provide any individual unfettered access to sensitive
information the Civil Rights Act of 1960 prevents even the Attorney General from
disclosing. Allowing disclosure of unredacted voter applications is inconsistent
also with Congress’s concern for individual privacy evidenced in Federal statutes,
37

On September 1, 2014, 42 U.S.C. § 1974 was recodified as 52 U.S.C.
§ 20701.
38
On September 1, 2014, 42 U.S.C. §§ 1974b and 1974c were recodified as
52 U.S.C. §§ 20703 and 20704, respectively.

51

including statutes such as the Voting Rights Act of 1965, 42 U.S.C. § 1973 et seq.,
the Freedom of Information Act, 5 U.S.C. § 552 et seq., and the Privacy Act of
1974, 5 U.S.C. § 552a et seq.
Despite the general presumption that judicial records are public documents,
see Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978); Chicago Tribune
Co. v. Bridgestone/Firestone, 263 F.3d 1304, 1311 (11th Cir. 2001), the Federal
Rules of Civil Procedure also express a preference for the privacy of personal
information about individuals by allowing redaction of social security numbers, an
individual’s birth year, a minor’s full name, and financial account and
taxpayer-identification numbers. Fed. R. Civ. P. 5.2(a).39
Similar privacy principles are embodied in Georgia law, which exempts
from disclosure “[r]ecords that reveal an individual’s social security number,
mother’s birth name, . . . unlisted telephone number if so designated in a public
record, personal e-mail address or cellular telephone number, [and] day and month
of birth . . . .” O.C.G.A. § 50-18-72(20)(A); accord Cal. Gov’t Code § 6254.4;
5 Ill. Comp. Stat. 140/7(1)(c); Tex. Gov’t Code § 552.102(a). Disclosure of
sensitive information such as Social Security numbers also is contrary to the
39

These types of redactions protect personal information and also protect
against personal violations such as identity theft.

52

purpose of the NVRA to “increase the number of eligible citizens who register to
vote,” 52 U.S.C. § 20501(b), because an individual could be deterred from
registering if his confidential information were subject to public disclosure.
The Court concludes that it is illogical that in enacting the NVRA, Congress
intended to erode Federal and State law protecting against the disclosure of private,
personal information. See True the Vote, 43 F. Supp. 3d at 735. That Congress
intended to limit certain confidential information from disclosure has been
recognized by every court that has considered Section 8(i). See Long, 682 F.3d at
339 (Social Security numbers constitute “uniquely sensitive” information required
to be redacted); Long, 752 F. Supp. 2d at 711-12 (same); see also True the Vote,
43 F. Supp. 3d at 734 (telephone numbers and Social Security numbers must be
redacted).
The Court determines that the Section 8(i) Records required to be disclosed
must have redacted from them the following personal information:
 All but the final four digits of an applicant’s telephone number;
 All but the final four digits of an applicant’s Social Security number;

53

 All characters preceding the @ symbol in an applicant’s email address;
and
 An applicant’s birth date.40
With the exception of applicants’ telephone numbers, Plaintiff does not seek these
categories of information. The information also is not relevant to the purposes for
which Plaintiff seeks the Section 8(i) Records—to determine whether the State
improperly removed or did not add individuals to the voter roll. As explained
above, the Court is unaware of any information in the record reflecting that
telephone numbers fall under the disclosure requirement of Section 8(i).41 Even if
it were, all but the last four digits of a telephone number would be required to be
redacted.
40

Though a birth date may be relevant to whether a particular applicant is
eligible to vote, the history of this action and Plaintiff’s requests of Defendant do
not reveal that Plaintiff seeks records to evaluate whether Defendant rejected
applications on the basis of age. Plaintiff’s requests do not seek this specific
information. The Court also finds birth dates are uniquely sensitive, particularly in
combination with a full name and address. See True the Vote, 43 F. Supp. 3d at
736-37 (noting that birthdates, in combination with other data, can reveal Social
Security numbers and other highly sensitive information).
41
The Court does not need to determine in this Order whether applicant names
and addresses are required to be redacted, because Defendant voluntarily provided
this information to Plaintiff previously. (See [18] at 8). The disclosure of names
and addresses of applicants raises privacy issues and issues concerning the
appropriate use of records required to be disclosed under the NVRA, including the
use of personal information about applicants to engage in partisan efforts to target
applicants for registration.

54

The Court next turns to the remaining issues raised in Defendant’s Motion to
Dismiss and Plaintiff’s Preliminary Injunction Motion.
III.

MOTION TO DISMISS
A.

Legal Standard

On a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure, the Court must “assume that the factual allegations in the
complaint are true and give the plaintiff[] the benefit of reasonable factual
inferences.” Wooten v. Quicken Loans, Inc., 626 F.3d 1187, 1196 (11th Cir.
2010). Although reasonable inferences are made in the plaintiff’s favor,
“‘unwarranted deductions of fact’ are not admitted as true.” Aldana v. Del Monte
Fresh Produce, N.A., 416 F.3d 1242, 1248 (11th Cir. 2005) (quoting S. Fla. Water
Mgmt. Dist. v. Montalvo, 84 F.3d 402, 408 n.10 (11th Cir. 1996)). Similarly, the
Court is not required to accept conclusory allegations and legal conclusions as true.
See Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)
(construing Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007)).
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Mere “labels and

55

conclusions” are insufficient. Twombly, 550 U.S. at 555. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). This requires more than
the “mere possibility of misconduct.” Am. Dental, 605 F.3d at 1290 (quoting
Iqbal, 556 U.S. at 679). The well-pled allegations must “nudge[] their claims
across the line from conceivable to plausible.” Id. at 1289 (quoting Twombly,
550 U.S. at 570). The Court applies this standard to consider Defendant’s
arguments to dismiss.
B.

Analysis

In addition to his arguments based on the terms of the NVRA, that are
discussed above, and which the Court finds are not grounds to dismiss Plaintiff’s
claims, Defendant also argues that the Help America Vote Act of 2002 (“HAVA”),
52 U.S.C. § 21083 et seq., precludes disclosure of records that are resident on the
Database, and that Plaintiff failed to provide the required statutory notice to
Defendant for certain of its requests.
1.

Whether the HAVA Implicitly Repealed Section 8(i)

Defendant argues that the HAVA prohibits disclosure of records resident on
the Database, because the statute requires state election officials to prevent

56

unauthorized access to state voter registration databases. Because the Section 8(i)
Records within the Database are records subject to disclosure, to accept
Defendant’s argument, the Court would have to find that the HAVA impliedly
repealed a portion of Section 8(i). Implicit repeal requires “a positive
repugnancy . . . that cannot be reconciled.” Tug Allie-B, Inc. v. United States,
273 F.3d 936, 941 (11th Cir. 2001). “If any interpretation permits both statutes to
stand, the court must adopt that interpretation, ‘absent a clearly expressed
congressional intention to the contrary.’” Miccosukee Tribe of Indians of
Fla. v. U.S. Army Corps of Eng’rs, 619 F.3d 1289, 1299 (11th Cir. 2010) (quoting
Garfield v. NDC Health Corp., 466 F.3d 1255, 1266 (11th Cir. 2006)).
Defendant bases his implied repeal argument on Section 303 of the HAVA,
which provides that States “shall provide adequate technological security measures
to prevent the unauthorized access to the computerized list” of voters required to
be maintained under the HAVA. 52 U.S.C. § 21083(a)(3). This provision can be
read in harmony with the NVRA: while the HAVA requires States to implement
technological security measures to prevent unauthorized access to the Database—
through, for example, hacking or online attacks—the NVRA authorizes the State to
disclose relevant Database records in response to a Section 8(i) request. In other
words, NVRA disclosure is not “unauthorized” access because it is specifically

57

required. Indeed, this interpretation is required because the HAVA expressly
provides that “nothing in this [Act] may be construed to . . . supersede, restrict, or
limit the application of [the NVRA].” 52 U.S.C. § 21145(a)(4); see also Long,
682 F.3d at 338 (“[B]y its own terms, HAVA cannot restrict or limit the
application of the NVRA’s public disclosure requirement.”). The HAVA does not
prohibit disclosure of information contained in the Database where that disclosure
is required under the NVRA.
2.

NVRA Notice Requirement

Defendant next argues Plaintiff’s Complaint should be dismissed because
Plaintiff failed to provide the required statutory notice to Defendant for certain of
its requests. The NVRA provides that an “aggrieved” person “may provide written
notice of the violation to the chief election official of the State involved.”
52 U.S.C. § 20510(b)(1). “Although notice is framed . . . as permissive rather than
mandatory, other NVRA provisions indicate that notice is mandatory.”
Scott v. Schedler, 771 F.3d 831, 835 (5th Cir. 2014). For instance, the NVRA
provides that, “[i]f the violation is not corrected within 90 days after receipt of
[the] notice . . . the aggrieved person may bring a civil action . . . .” 52 U.S.C.
§ 20510(b)(2). “No standing is therefore conferred if no proper notice is given,
since the 90-day period never runs.” Scott, 771 F.3d at 835 (quoting Ga. State

58

Conference of NAACP v. Kemp, 841 F. Supp. 2d 1320, 1335 (N.D. Ga. 2012)).
“The apparent purpose of the notice provision is to allow those violating the
NVRA the opportunity to attempt compliance with its mandates before facing
litigation.” Kemp, 841 F. Supp. 2d at 1335 (citing Ass’n of Cmty. Orgs. for
Reform Now v. Miller, 129 F.3d 833, 838 (6th Cir. 1997)).
Defendant argues that “Plaintiff has consistently sought access to
Defendant’s [D]atabase . . . . However, to the extent that Plaintiff suggests that
what it really seeks in this litigation is copies of documents maintained by election
officials, Plaintiff has not provided Defendant with statutory notice . . . .” ([20.1]
at 21-22). Defendant also argues that, to the extent Plaintiff now requests
individual voter records, it failed to provide statutory notice. ([37] at 14). The
contents of Plaintiff’s July 6, 2015, NVRA Notice, sent to Defendant nearly a year
before this action was filed, make it clear that Plaintiff sought a wide variety of
records. The NVRA Notice described the records Plaintiff requested on
October 30, 2014, and sought to explain why Defendant’s productions failed to
satisfy those requests. Plaintiff stated that Defendant did not provide (1) a
complete list of rejected or canceled applicants, (2) records for applicants not
added to the voter roll for reasons other than cancelation or rejection, (3) materials
adequately explaining Defendant’s data codes or the specific reason an applicant

59

was canceled, rejected or otherwise not added to the voter roll, (4) a copy of the
Database,42 and (5) all written policies, manuals or other guidance regarding the
processing of voter registration applications. ([1.13] at 3-7). The NVRA Notice
stated that Plaintiff seeks “any records explaining or reflecting the reasons for [an
applicant’s or voter’s] rejection, cancelation, or not being added” to the voter roll.
(Id. at 2).
The Court finds Plaintiff’s NVRA Notice, which clearly articulated its
concerns and stated it sought “any records” pertaining to its concerns, met the
notice requirement of 52 U.S.C. § 20510(b)(1). Defendant does not provide any
support for its position that Plaintiff was required to detail in its written notice the
format of the documents it sought, or the specific type of documents that would
satisfy its request. Indeed, courts have found that an NVRA notice is sufficient if it
“sets forth the reasons for [the] conclusion” that a defendant failed to comply with
the NVRA, and, when “read as a whole, [it] makes it clear that [the plaintiff] is
asserting a violation of the NVRA and plans to initiate litigation if its concerns are
not addressed in a timely manner.” Judicial Watch, Inc. v. King, 993 F. Supp. 2d
919, 922 (S.D. Ind. 2012). This interpretation is consistent with the purpose of the
42

The Requested Records, unlike the NVRA Demand, do not seek a copy of
the Database.

60

notice provision, which “is to allow those violating the NVRA the opportunity to
attempt compliance with its mandates before facing litigation.” Kemp,
841 F. Supp. 2d at 1335. Plaintiff’s NVRA Notice met the requirements of
52 U.S.C. § 20510(b)(1). For the reasons stated in this Order, Defendant’s Motion
to Dismiss is denied.43
IV.

PRELIMINARY INJUNCTION MOTION
Plaintiff seeks a preliminary injunction requiring Defendant to disclose the

Requested Records. Because the Court has determined certain of the Requested
Records are not, at this time, subject to disclosure under Section 8(i), the Court
considers the Preliminary Injunction Motion as seeking disclosure only of the
Section 8(i) Records.
A.

Legal Standard

A plaintiff seeking a preliminary injunction must establish: (1) that it is
likely to succeed on the merits, (2) that it is likely to suffer irreparable harm in the

43

In its August 29, 2016, reply brief in support of its Preliminary Injunction
Motion [33], Plaintiff asserts that the parties dispute whether the burden of making
the Requested Records available is a valid reason to excuse compliance with the
NVRA. ([33] at 10). To the extent Defendant seeks to argue that the burden of
compliance is a ground to dismiss the Complaint, Defendant does not present legal
support for his argument, and the Court does not find any support for it in the text
of the NVRA. The Court will consider the burden of compliance in its analysis of
Plaintiff’s Preliminary Injunction Motion.

61

absence of preliminary relief, (3) that the balance of equities tips in its favor, and
(4) that an injunction is in the public interest. Winter v. Nat. Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008). “The preliminary injunction is an extraordinary and
drastic remedy not to be granted unless the movant clearly carries the burden of
persuasion as to the four prerequisites. The burden of persuasion in all of the four
requirements is at all times upon the plaintiff.” Ne. Fla. Chapter of Ass’n of Gen.
Contractors of Am. v. City of Jacksonville, Fla., 896 F.2d 1283, 1285 (11th Cir.
1990) (internal quotation marks omitted) (quoting United States v. Jefferson
County, 720 F.2d 1511, 1519 (11th Cir. 1983)); see Seiko Kabushiki
Kaisha v. Swiss Watch Int’l, Inc., 188 F. Supp. 2d 1350, 1357 (S.D. Fla. 2002)
(“Courts in this Circuit will not issue a preliminary injunction where the moving
party fails to meet its burden of proof on each of the four factors.”).
B.

Analysis
1.

Likelihood of Success on the Merits

A likelihood of success on the merits is generally considered the most
important factor when considering whether to grant a preliminary injunction
motion. See Schiavo v. Schiavo, 357 F. Supp. 2d 1378, 1383 (M.D. Fla. 2005),
aff’d, 403 F.3d 1223 (11th Cir. 2005). The Court has determined the Section 8(i)
Records are required to be disclosed under the NVRA. Defendant admits that he

62

did not disclose the Section 8(i) Records. (See [33] at 6-10 (citing Beaver Dep.)).
Defendant argues, however, that he substantially complied with Plaintiff’s original
request for records, and “therefore Plaintiff’s motion for injunctive relief is moot.”
([18] at 12). Mootness bars a lawsuit “when it is impossible for a court to grant
any effectual relief whatever to the prevailing party.” Knox v. Serv. Emps. Int’l
Union, Local 1000, 132 S. Ct. 2277, 2287 (2012). The party asserting mootness
bears the “‘formidable burden of showing that it is absolutely clear the allegedly
wrongful behavior could not reasonably be expected to recur.’” Doe v. Wooten,
747 F.3d 1317, 1322 (11th Cir. 2014) (quoting Friends of the Earth, Inc.
v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000)). Defendant’s
substantial compliance with Plaintiff’s records requests does not moot this action,
because it is possible for the Court to grant relief to Plaintiff—that is, to order
Defendant to make the Section 8(i) Records available. Cf. N.L.R.B. v. Allied Med.
Transp., Inc., 805 F.3d 1000, 1006-1007 (11th Cir. 2015) (substantial compliance
with National Labor Relations Board order did not render the cause moot); Fla.
Democratic Party v. Hood, 342 F. Supp. 2d 1073, 1082 & n.10 (N.D. Fla. 2004)
(Florida’s steps to remedy previous voting rights violations did not moot plaintiff’s
claims).

63

Defendant admits that he did not disclose the Section 8(i) Records to
Plaintiff. (See [33] at 6-10 (citing Beaver Dep.)). Defendant appears to argue that
the burden of making available certain of the Requested Records excuses his
compliance with the disclosure requirements of the NVRA. Defendant does not
present any legal support for his argument, and the Court does not find any support
for it in the text of the NVRA. The burden of making the records available is
relevant, if at all, to whether Plaintiff meets its burden to show the balance of
equities supports granting a preliminary injunction. It is not relevant to whether
Plaintiff has established its likelihood of success on the merits. Because Defendant
admits he has not fully made the Section 8(i) Records available to Plaintiff, the
Court finds Plaintiff has met its burden to show it is likely to succeed on the merits
of establishing a violation of the NVRA disclosure requirements.
2.

Irreparable Harm

Plaintiff contends that Defendant’s refusal to disclose records will cause
Plaintiff irreparable harm. “An injury is ‘irreparable’ only if it cannot be undone
through monetary remedies.” Charles H. Wesley Educ. Found., Inc., 324 F. Supp.
2d 1358, 1368 (N.D. Ga. 2004) (quoting Cunningham v. Adams, 808 F.2d 815,
821 (11th Cir. 1987)).

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Plaintiff argues that inspection of the records before Georgia’s
October 11, 2016, voter registration deadline is essential for Plaintiff to “exercise
the oversight functions envisioned by the NVRA and to ensure all of Georgia’s
voters may exercise their right to vote in the upcoming election.” ([12.1] at 24).
Defendant argues that, although Plaintiff has had Defendant’s list of canceled voter
applications since April, 2015, Plaintiff has yet to identify a single voter who was
improperly removed or not added to the voter rolls. ([18] at 23-24). Defendant’s
argument overlooks that Plaintiff seeks the records to determine whether a voter
was or was not improperly removed or not added to the voter rolls.
This Court has recognized that conduct that limits an organization’s ability
to conduct voter registration activities constitutes an irreparable injury. See Ass’n
of Cmty. Orgs. for Reform Now v. Cox, No. 1:06-CV-1891-JTC, 2006 WL
6866680, at *7 (N.D. Ga. Sept. 28, 2006); Charles H. Wesley, 324 F. Supp. 2d at
1368 (“[N]o monetary remedy can correct the fact that the applications submitted
on June 12 were improperly rejected nor will a monetary remedy prevent the state
from rejecting similar applications in the future.”).
The reasoning of Cox and Charles H. Wesley applies here. The purpose of
the NVRA’s disclosure provision is to allow the public to oversee voter
registration processes to “protect the integrity of the electoral process” and “ensure

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that accurate and current voter registration rolls are maintained.” 52 U.S.C.
§ 20501(b). The Section 8(i) Records contain information about the State’s
evaluation and processing of voter registration applications to determine whether
applicants should be added to the voter roll. Plaintiff seeks the records in
furtherance of its mission “to ensure that voter registration applicants are properly
added and voters are not unlawfully removed from the list of eligible voters.”
(Decl. of Brian W. Mellor [12.2] ¶ 4). There is no monetary remedy that can
correct the public’s lack of access to information enabling it to ensure the integrity
of Georgia’s voter registration process. See Charles H. Wesley, 324 F. Supp. 2d at
1368. The Court finds Plaintiff meets its burden to show it will suffer irreparable
injury if a preliminary injunction is not granted.
3.

Balancing of the Harms or Equities

The third preliminary injunction factor requires the Court to consider the
extent to which the injunction will harm the non-movant. Plaintiff argues the
balance of the equities favors granting preliminary relief, because Defendant’s
refusal to make records available “undermines the NVRA’s core purpose of
enabling oversight of election officials and protecting the voting rights of the
public.” ([12.1] at 22). It argues the cost of disclosure under the NVRA “is a
burden that Congress assigned to states as part of the NVRA’s statutory scheme.”

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(Id. at 23). Defendant, in his briefing and through his Rule 30(b)(6) witness
S. Merritt Beaver, maintains he would suffer an undue burden if he were forced to
make available the Section 8(i) Records.44
The Court finds that the threatened injury to Plaintiff outweighs the harm to
Defendant. The NVRA requires that Defendant maintain voter registration records
and make the records accessible for public inspection. Defendant chose to contract
a third party to create the Database, and now claims that it is unduly burdensome to
fulfill his NVRA obligations to make available certain Section 8(i) Records that
are resident on the Database. As Defendant admits, unlike other Federal statutes,
“the NVRA has no express language permitting a state agency to charge the
requestor the costs of producing whatever information is requested.” ([37] at 11).
The absence of a cost provision in the public inspection provision of the NVRA—
and its inclusion in other record disclosure laws—suggests Congress intended
States to shoulder the burden about which Defendant now complains.
As Plaintiff notes, Mr. Beaver testified that Defendant can provide the
Section 8(i) Records in several different formats. For instance, Mr. Beaver
testified the records could be provided in a database format, similar to the Database
44

Though Defendant does not explicitly argue this point with respect to the
Preliminary Injunction Motion, the Court considers it here.

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in which the records are now stored, as well as on an individual, as opposed to
aggregated, basis. (Beaver Dep. at 90:19-91:9, 130:20-131:16). While Defendant
maintains that providing the records in database format would be prohibitively
expensive and may compromise Database security,45 Defendant does not appear to
provide any reason why he could not provide the records on an individual basis,
arguing only that Plaintiff failed to provide statutory notice of its request for
individual voter records. (See [37] at 14). The Court has rejected Defendant’s
statutory notice argument. The Court finds the balance of equities tips in
Plaintiff’s favor where, as here, the design of the record system was selected by
Defendant.
4.

Public Interest

Finally, the Court finds an injunction would not be contrary to the public
interest. “The public has an interest in seeing that the State of Georgia complies
with federal law, especially in the important area of voter registration. Ordering
the state to comply with a valid federal statute is most assuredly in the public
45

Mr. Beaver testified that to provide the records in the database format they
are in currently would require the creation of an entirely new database, which is
“usually [a] multi-million dollar exercise[].” (Beaver Dep. at 90:19-91:9).
Mr. Beaver did not explain why an entirely new database would be required.
Defendant also argues, without any evidence to support, that copying the state
election Database would compromise its security by making it more vulnerable to
malicious intrusion. ([37] at 13-14).

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interest.” Charles H. Wesley, 324 F. Supp. 2d at 1369; see also Long, 682 F.3d at
339 (“It is self-evident that disclosure [of voter registration records] will assist the
identification of both error and fraud in the preparation and maintenance of voter
rolls.”); Cox, 2006 WL 6866680, at *7 (“The public’s interest is advanced by
registering as many eligible voters as possible.”). Preliminary relief that allows
Plaintiff, before the October 11, 2016, Georgia voter registration deadline, to
examine the Section 8(i) Records is in the public interest. Because Plaintiff meets
its burden to show it is entitled to preliminary injunctive relief, Plaintiff’s
Preliminary Injunction Motion is granted with respect to the Section 8(i) Records.
The motion is denied with respect to the remainder of the Requested Records.46
V.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Defendant Brian Kemp’s Motion to

Dismiss [20] is DENIED.
IT IS FURTHER ORDERED that Plaintiff Project Vote, Inc.’s
Motion for Preliminary Injunction [12] is GRANTED IN PART and
DENIED IN PART. Plaintiff’s Motion is GRANTED, and Defendant
46

The interpretation of Section 8(i) in this Order is a matter of first impression
in our Circuit. In view of the importance of the disclosure requirement, the Court
would be willing to entertain a motion to certify this matter for appeal.

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shall, on or before October 7, 2016, disclose to Plaintiff the following
records with respect to canceled, rejected, or pending applicants: 47
(1)

The date voter registration applications were signed by an
applicant.

(2)

The date applications were entered into the Database.

(3)

Each change in an applicant’s voter registration status.

(4)

The creation date of Database-generated letters to applicants,
only to the extent the letters concern the status or completeness
of an individual’s application or otherwise relate to the
evaluation of an individual’s eligibility to vote.

(5)

Whether an election official manually, instead of mechanically,
changed the status of one or more applicants, only to the extent
these records are stored on the Database.

(6)

Reasons other than the most recent reason why an applicant
was rejected, canceled, or otherwise not added to the voter roll.

(7)

The specific reason why applicants, assigned a status reason of
“Error,” “Hearing,” or “Reject,” were canceled, only to the
extent these records are stored on the Database.

(8)

Records for canceled applicants with a status reason other than
one of the eleven options in the drop-down menu in the
Database.

(9)

Copies of Database-generated letters sent to applicants, only to
the extent the letters concern the status or completeness of an

47

Defendant should make reasonable efforts to produce the records as they are
processed. If there is any problem in completing the production of the Section 8(i)
Records by October 7, 2016, the Court should be advised immediately.

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individual’s application or otherwise relate to the evaluation of
an individual’s eligibility to vote.
(10) The date of, and any response to, all letters sent to applicants,
only to the extent the letters concern the status or completeness
of an individual’s application or otherwise relate to the
evaluation of an individual’s eligibility to vote.
(11) Copies of letters, not generated by the Database, that were sent
to applicants, only to the extent the letters concern the status or
completeness of an individual’s application or otherwise relate
to the evaluation of an individual’s eligibility to vote.
The records disclosed must have redacted from them the following personal
information:
 All but the final four digits of an applicant’s telephone number;
 All but the final four digits of an applicant’s Social Security number;
 All characters preceding the @ symbol in an applicant’s email address;
and
 An applicant’s birth date.
Plaintiff’s Motion for Preliminary Injunction is DENIED with respect to the
remainder of the Requested Records.

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SO ORDERED this 19th day of September, 2016.

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