Judicial Watch, Inc. v. Lamone et al
Filing
54
MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 8/8/2019. (hmls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JUDICIAL WATCH, INC.
Plaintiff,
Civil Action No. ELH-17-2006
v.
LINDA LAMONE, et al.
Defendants.
MEMORANDUM OPINION
This litigation concerns an organization’s request under state and federal law for access to
the voter registration list for Montgomery County, Maryland.
Plaintiff Judicial Watch, Inc. (“Judicial Watch”) has sued a host of defendants, in their
official capacities, including Linda Lamone, the Maryland Administrator of Elections, to compel
compliance with Section 8(i)(1) of the National Voter Registration Act of 1993 (“NVRA” or the
“Act”), codified, as amended, at 52 U.S.C. § 20507(i)(1). See ECF 1 (“Complaint”). The remaining
defendants include David McManus, Jr., the Chairman of the Maryland State Board of Elections
(“SBE”); Patrick Hogan, the Vice-Chairman of the SBE; Jared DeMarinis, the Public Information
Act Officer and Director of the Division of Candidacy and Campaign Finance for SBE; and SBE
Members Michael Cogan, Kelley Howells, and Gloria Lawlah (collectively, the “State
Defendants”). Id.1
In addition, plaintiff sued James Shalleck, the President of the Montgomery County Board
1
It appears that Lawlah is no longer an SBE Member. See MARYLAND.GOV, STATE BOARD
OF ELECTIONS (last visited Aug. 5, 2019), http://elections.maryland.gov/about/index.html. Lawlah
was an SBE Member from 2016 through an unspecified date in 2018. See MARYLAND MANUAL
ON-LINE, SECRETARIES, DEPARTMENT OF AGING, GLORIA GARY LAWLAH (last visited Aug. 5,
2019), http://msa.maryland.gov/msa/mdmanual/10da/former/html/msa12153.html.
of Elections (“MCBE”); Nahid Khozeimeh, the Vice-President of the MCBE; Mary Ann Keeffe,
the Secretary of the MCBE; Alexander Vincent and David Naimon, MCBE Members; and
Jacqueline Phillips, an MCBE Substitute Member (collectively, the “County Defendants”). Id.
However, on June 4, 2018, the Court granted the County Defendants’ motion to dismiss (ECF 2),
thereby dismissing them from the case. ECF 34; ECF 35.
Following discovery, plaintiff moved for summary judgment (ECF 43), supported by a
memorandum of law (ECF 43-1) (collectively, the “Motion”) and exhibits. ECF 43-2 to ECF 436.
The defendants filed a cross motion for summary judgment (ECF 49), supported by a
memorandum of law (ECF 49-1) (collectively, the “Cross Motion”) and exhibits. ECF 49-3 to
ECF 49-10. Plaintiff filed an opposition to the Cross Motion, along with four additional exhibits.
See ECF 52-1 through ECF 52-4. Defendants replied (ECF 53) and submitted an additional
exhibit. See ECF 53-1.
No hearing is necessary to resolve the motions. See Local Rules 105.6. For the reasons
that follow, I shall GRANT the Motion (ECF 43) in part and DENY it in part, and I shall DENY
the Cross-Motion (ECF 49).
Factual Background
A.
Judicial Watch describes itself as a “not-for-profit, educational organization” that is
dedicated to “promot[ing] transparency, integrity, and accountability in government.” ECF 1, ¶ 5.
According to Judicial Watch, it “regularly requests records from state and local governments
pursuant to Section 8(i) of the NVRA, and state open-records laws . . . .” Id. And, it “analyzes all
responses and disseminates both its findings and the requested records to the American public to
inform it about ‘what the government is up to.’” Id. (citation omitted).
2
On April 11, 2017, Thomas Fitton, President of Judicial Watch, sent an email to Lamone,
as well as the officers and members of both the SBE and the MCBE. ECF 1, ¶ 11. The email
included a letter to McManus dated April 11, 2017. See ECF 1-1 (“Notice Letter”). Hogan,
Cogan, Howells, Lawlah, Lamone, Shalleck, Khozeimeh, Keefe, Vincent, Naimon, Popper, and
Nikki Charlson, the Deputy State Administrator of the SBE, were copied on the Notice Letter.
ECF 1-1 at 7.2 The Notice Letter, which is appended to the suit (ECF 1-1), was also sent by
certified mail to the SBE and the MCBE. ECF 1, ¶ 11.
The Notice Letter stated, in part, ECF 1-1 at 1-7 (emphasis added):
Dear Chairman McManus:
We write to bring your attention to violations of Section 8 of the National
Voter Registration Act (“NVRA”) in Montgomery County, Maryland. From
public records obtained, Montgomery County has more total registered voters
than adult citizens over the age of 18 as calculated by the U.S. Census Bureau’s
2011-2015 American Community Survey. This is strong circumstantial evidence
that Montgomery County is not conducting reasonable voter registration record
maintenance as mandated under the NVRA.
*
*
*
This letter serves as statutory notice that Judicial Watch will bring a
lawsuit against your office if you do not take specific actions to correct these
violations of Section 8 within 90 days. In addition, by this letter we are asking
you to produce certain records to us which you are required to make available
under Section 8(i) of the NVRA.
*
*
*
You are receiving this letter because you are the designated chief state
election official under the NVRA.
*
*
*
In order to avoid litigation, we hope you will promptly initiate efforts to
comply with Section 8 so that no lawsuit will be necessary. We ask you to please
2
Phillips was not copied.
3
respond to this letter in writing no later than 45 days from today informing us of
the compliance steps you are taking. Specifically, we ask you to: (1) conduct or
implement a systematic, uniform, nondiscriminatory program to remove from
the list of eligible voters the names of persons who have become ineligible to
vote by reason of a change in residence; and (2) conduct or implement additional
routine measures to remove from the list of eligible voters the names of persons
who have become ineligible to vote by reason of death, change in residence, or a
disqualifying criminal conviction, and [(3)]to remove noncitizens who have
registered to vote unlawfully.
*
*
*
[P]ursuant to your obligations under the NVRA, please make available to
us all pertinent records concerning “the implementation of programs and activities
conducted for the purpose of ensuring the accuracy and currency” of Maryland’s
official eligible voter lists during the past 2 years. Please include these records
with your response to this letter. These records should include, but are not limited
to:
1. Copies of the most recent voter registration database from Montgomery
County, Maryland, including fields indicating name, date of birth, home
address, most recent voter activity, and active or inactive status.
2. Copies of all email or other communications internal to the office of the
Maryland State Board of Elections, including any of its divisions,
bureaus, offices, third party agents, or contractors, (hereinafter,
collectively “State Board of Elections”) relating to the maintenance of
accurate and current voter rolls.
3. Copies of all email or other communications between the State Board of
Elections and all Maryland County Voter Registration Officials
concerning:
a. Instructions to the counties concerning their general list
maintenance practices and obligations;
b. Instructions to the counties for the removal of specific
noncitizens and deceased, relocated, or convicted persons
identified by the State Board of Elections; and
c. Notices to the counties concerning any failure to comply with
their voter list maintenance obligations under Maryland’s
program.
4. Copies of all email or other communications between the State Board of
Elections and the Maryland State Department of Health, the Maryland
State Department of Corrections, the Maryland Motor Vehicle
4
Administration, and the Maryland State Judiciary concerning obtaining
information about deceased, relocated, convicted, or noncitizen registered
voters for the purpose of updating Maryland’s voter registration lists.
5. Copies of all email or other communications between the State Board of
Elections and the U.S. Attorney(s) for Maryland, the U.S. District Court
for Maryland, the U.S. Social Security Administration, the U.S. Postal
Service, the U.S. Citizenship and Immigration Services, and the U.S.
Department of Homeland Security concerning the National Change of
Address database, the Systematic Alien Verification for Entitlements
database, or any other means of obtaining information about deceased,
relocated, convicted, or noncitizen registered voters for the purpose of
updating Maryland’s voter registration lists.
6. Copies of all email or other communications between the State Board of
Elections and the Interstate Voter Registration Cross-Check Program,
the Electronic Registration Information Center, the National Association
for Public Health Statistics and Information Systems, and any other U.S.
State concerning obtaining information about deceased or relocated
registered voters for the purpose of updating Maryland’s voter
registration lists. . . .
The SBE’s Nikki Charlson sent an email to Judicial Watch on May 26, 2017, indicating
that the SBE had received the Notice Letter. ECF 1, ¶ 18. Further, she stated that the SBE would
issue a response to Judicial Watch, and that the SBE would provide Judicial Watch with the
“requested documents next week.” Id.3
Judicial Watch received a letter from Lamone on June 5, 2017. Id. ¶ 19; ECF 19-2.4
Lamone stated, inter alia, that Maryland’s voter list maintenance program complies with the
NVRA, that the SBE was compiling “responsive” documents, and that the SBE would provide
those documents to Judicial Watch “‘shortly.’” ECF 1, ¶¶ 19-20; ECF 19-2.
By email dated July 7, 2017 (ECF 1-2), DeMarinis informed plaintiff, id.: “The documents
that you requested from your April 11, 2017 letter are ready for review. However, . . . the request
3
A copy of the email was not submitted.
4
The letter (ECF 19-2) was sent by certified mail and by email.
5
for the Montgomery County voter registration list was not made in accordance with Election Law
Article 3-506. Therefore, it will not be processed.” ECF 1, ¶¶ 21-22; see Md. Code (2017 Repl.,
2018 Supp.), § 3-506(a) of the Election Law Article (“E.L.”) (stating that upon request “a list of
registered voters shall be provided to a Maryland registered voter”) (emphasis added).
On July 11, 2017, Popper, as counsel for plaintiff, spoke by telephone with DeMarinis.
ECF 1, ¶ 24. During that call, Popper noted that Judicial Watch is organized under D.C. law and
therefore it could not be “a Maryland registered voter,” as required by E.L. § 3-506(a)(1). ECF 1,
¶ 24. As a result, plaintiff could not obtain the “requested voter list.” Id. DeMarinis confirmed
that the Maryland Attorney General’s office had so indicated. Id.
As indicated, in Judicial Watch’s Notice Letter, plaintiff requested “[c]opies of the most
recent voter registration database.” ECF 1-1 at 5. Plaintiff has since clarified that it is seeking
the most recent voter registration “list” for Montgomery County, rather than the database. ECF
52 at 6 (“In light of what Plaintiff learned in discovery, it probably would have been more accurate
in the April 2017 notice letter to request the most recent voter registration ‘list’ rather than
‘database.’”). As defendants put it, “the record is now clear that the subject matter of this case has
only ever been the Voter List (and not a Montgomery County database)[.]” ECF 49-1 at 26.
B.
Maryland maintains and manages its voter registrations through MDVOTERS (the
“Database”), a statewide database containing voter registration records for Maryland elections. See
ECF 43-3 (Deposition of Mary Cramer Wagner) at 6, p. 26:17-21; ECF 43-4 (Deposition of Janet
Smith) at 13, p. 71:11-21. Each voter registration is represented in MDVOTERS by a separate
entry, and each entry is composed of three parts: voter data, images of transaction source
documents, and an activity log.
6
The voter data consists of the voter’s personal information, as well as information on the
voter’s registration status. The information about the voter is organized into data fields or
categories, each containing one piece of information. The fields in MDVOTERS include name,
date of birth, and address. See ECF 43-4 at 13, p. 71:11-14; ECF 49-8 (Decl. of Mary Cramer
Wagner), ¶¶ 16-17. Each entry also includes fields for “the individual’s current registration status,
the reason for the most recent change in status, and the source of the change[.]” ECF 49-8, ¶ 7.
Because each voter registration contains many of the same fields, an official can use the fields to
search, sort, filter, or otherwise access the data concerning the voters. Therefore, an official could
produce a list of Maryland voters in Montgomery County. See ECF 49-1 at 38.
Mary Cramer Wagner, the SBE’s Director of the Voter Registration and Petition Division,
explained in her Declaration that each registration contains images of transaction source
documents, “scanned documents reflecting all voter registration transactions and certain other
transactions in the individual's history.” ECF 49-8, ¶ 7. She stated, id. ¶ 8: “When a person’s
record is updated as a result of a voter registration or other transaction, any document evidencing
that transaction (e.g., voter registration application), is scanned into the database and associated
with that record.” These documents are used to verify the personal information used to populate
or update the voter data in the voter registration entry. See id. ¶¶ 16-17.
A separate activity log is maintained for each voter. The activity log tracks changes to the
voter’s data, such as changes in voter registration. ECF 43-4 at 13, pp. 70:13-71:3.
Although the State Board of Elections maintains MDVOTERS, local boards of elections
process most voter registration transactions on a record-by-record basis within the Database. See
ECF 43-3 at 5, pp. 16:20-17:13; id. at 12-13, pp. 73:14-74:2. To assist the local boards, the SBE
provides training regarding proper list maintenance procedures, circulates biweekly newsletters
7
containing registration-related information and updates, and publishes guidance documents
directing election officials on how to process records that present certain scenarios. See ECF 496 (Deposition of Janet Smith), at 10:11-12:5; ECF 49-8, ¶ 15.
Local boards of election also conduct audits of other local boards’ voter registration
transactions. ECF 49-9 (Decl. of Janet Smith), ¶ 6. To audit voter registration transactions, a local
election official pulls a subset of individual voter registrations from the Database through a search
query. ECF 49-6 at 29:17-33:11. The local election official then checks each transaction against
the scanned source document to ensure that it was processed properly. See ECF 49-9, ¶ 4. State
officials, such as Maryland’s Voter Registration Manager of Audits, Janet Smith, also conduct
audits of voter registration transactions. See ECF 43-4 at 28:17-31:13; ECF 49-9, ¶ 3.
Standard of Review
Both parties have moved for summary judgment under Fed. R. Civ. P. 56. Rule 56(a)
provides, in part: “The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); see also Iraq Middle Mkt. Dev. Found.
v. Harmoosh, 848 F.3d 235, 238 (4th Cir. 2017) (“A court can grant summary judgment only if,
viewing the evidence in the light most favorable to the non-moving party, the case presents no
genuine issues of material fact and the moving party demonstrates entitlement to judgment as a
matter of law.”). The nonmoving party must demonstrate that there are disputes of material fact
so as to preclude the award of summary judgment as a matter of law. Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).
The Supreme Court has clarified that not every factual dispute will defeat the motion. “By
its very terms, this standard provides that the mere existence of some alleged factual dispute
8
between the parties will not defeat an otherwise properly supported motion for summary judgment;
the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). A fact is “material” if it “might affect
the outcome of the suit under the governing law.” Id. at 248. There is a genuine issue as to material
fact “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Id.; see Sharif v. United Airlines, Inc., 841 F.3d 199, 204 (4th Cir. 2016); Raynor v. Pugh, 817
F.3d 123, 130 (4th Cir. 2016); Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013).
“A party opposing a properly supported motion for summary judgment ‘may not rest upon
the mere allegations or denials of [its] pleadings,’ but rather must ‘set forth specific facts showing
that there is a genuine issue for trial.’” Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d
514, 522 (4th Cir. 2003) (alteration in Bouchat) (quoting former Fed. R. Civ. P. 56(e)), cert. denied,
541 U.S. 1042 (2004); see also Celotex, 477 U.S. at 322-24. Moreover, in resolving a summary
judgment motion, a court must view all of the facts, including reasonable inferences to be drawn
from them, in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. Ltd.,
475 U.S. at 587; accord Hannah P. v. Coats, 916 F.3d 327, 336 (4th Cir. 2019); Roland v. United
States Citizenship & Immigration Servs., 850 F.3d 625, 628 (4th Cir. 2017); FDIC v. Cashion, 720
F.3d 169, 173 (4th Cir. 2013). However, summary judgment is appropriate if the evidence “is so
one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 252. And, “the
mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient;
there must be evidence on which the jury could reasonably find for the plaintiff.” Id.
The judge’s “function” in reviewing a motion for summary judgment is not “to weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine issue
for trial.” Anderson, 477 U.S. at 249; accord Guessous v. Fairview Prop. Inv., LLC, 828 F.3d 208,
9
216 (4th Cir. 2016). Thus, in considering a summary judgment motion, the court may not make
credibility determinations. Wilson v. Prince George’s Cty., 893 F.3d 213 218-19 (4th Cir. 2018);
Jacobs v. N.C. Administrative Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015); Mercantile
Peninsula Bank v. French, 499 F.3d 345, 352 (4th Cir. 2007). Moreover, in the face of conflicting
evidence, such as competing affidavits, summary judgment ordinarily is not appropriate because
it is the function of the fact-finder to resolve factual disputes, including matters of witness
credibility. See Black & Decker Corp. v. United States, 436 F.3d 431, 442 (4th Cir. 2006); Dennis
v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002).
When, as here, the parties have filed cross-motions for summary judgment, the court must
consider “each motion separately on its own merits ‘to determine whether either of the parties
deserves judgment as a matter of law.’” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003)
(citation omitted); see Mellen v. Bunting, 327 F.3d 355, 363 (4th Cir. 2003). Merely because both
parties have filed for summary judgment does not mean that summary judgment to one party or
another is necessarily appropriate. “Both motions must be denied if the court finds that there is a
genuine issue of material fact. But, if there is no genuine issue and one or the other party is entitled
to prevail as a matter of law, the court will render judgment.” 10A WRIGHT, MILLER & KANE,
FEDERAL PRACTICE & PROCEDURE § 2720 (3d ed.).
Discussion
10
Judicial Watch maintains that under Section 8(i) of the NVRA, it is entitled to production
of the voter registration list for Montgomery County. Judicial Watch also asserts that the NVRA
preempts any Maryland state election laws that prevent it from obtaining the records.
Defendants counter that a voter list is not a “record” under Section 8(i). In their view, a
voter list is not used in the “‘implementation of programs or activities’” that ensure the accuracy
and currency of MDVOTERS. ECF 49-1 at 20 (quoting 52 U.S.C. § 20507(i)(1)). They also
assert that Maryland state election law is not preempted by the NVRA and may limit the production
of voting-related records more strictly than the NVRA.
I begin with a review of the relevant statutes.
A.
“The NVRA reflects the view of Congress that the right to vote ‘is a fundamental right,’
that government has a duty to ‘promote the exercise of that right,’ and that discriminatory and
unfair registration laws can have a ‘damaging effect on voter participation’ and ‘disproportionately
harm voter participation by various groups, including racial minorities.’” Project Vote/Voting for
Am., Inc. v. Long, 682 F.3d 331, 334 (4th Cir. 2012) (quoting 42 U.S.C. § 1973gg(a), as amended,
52 U.S.C. § 20501(a)); see also Harkless v. Brunner, 545 F.3d 445, 449 (6th Cir. 2008); Voter
Integrity Protect of N.C., Inc. v. Wake Cnty. Bd. of Elec.’s, 301 F. Supp. 3d 612, 614-15 (E.D.N.C.
2017); Action N.C. v. Strach, 216 F. Supp. 3d 597, 609 (M.D.N.C. 2016); N.C. State Conference
of the NAACP v. N.C. State Bd. of Elec.’s, 16-cv-1274, 2016 WL 6581284, at *2-3 (M.D.N.C.
Nov. 4, 2016).
To that end, the NVRA is intended to “establish procedures that will increase the number
of eligible citizens who register to vote in elections for Federal office,” 52 U.S.C. § 20501(b)(1);
to “enhance[] the participation of eligible citizens as voters in elections for Federal office,”
11
§ 20501(b)(2); “to protect the integrity of the electoral process,” § 20501(b)(3); and “to ensure that
accurate and current voter registration rolls are maintained.” § 20501(b)(4); see Long, 682 F.3d at
334; Action N.C., 216 F. Supp. 3d at 609; N.C. State Conference of the NAACP, 2016 WL 6581284,
at * 2-3; True the Vote v. Hosemann, 43 F. Supp. 3d 693, 719 (S.D. Miss. 2014). But, “[t]he
NVRA was not designed as a tool to root out voter fraud, ‘cross-over voting,’ or any other illegal
or allegedly illegal activity associated with casting a ballot on election day.” True the Vote, 43 F.
Supp. 3d at 722 (citation omitted).
Under the NVRA, states must provide at least three methods for eligible voters to register
to vote in federal elections: “by application made simultaneously with an application for a motor
vehicle driver’s license,” 52 U.S.C. § 20503(a)(1);5 “by mail application,” using a federally
prescribed form, Section 20503(a)(2); and “by application in person” at a designated voter
registration agency. See § 20503(a)(3); see also Arizona v. Inter Tribal Council of Arizona, Inc.,
570 U.S. 1, 5 (2013); Long, 682 F.3d at 334; Action N.C., 216 F. Supp. 3d at 609; True the Vote,
43 F. Supp. 3d at 719.
Pursuant to 52 U.S.C. § 20507(a)(4), the NVRA also requires states to “conduct a general
program that makes a reasonable effort to remove the names of ineligible voters from the official
lists of eligible voters by reason of — (A) the death of the registrant; or (B) a change in the
residence of the registrant[.]”
52 U.S.C. § 20507(a)(4)(A)-(B).
Otherwise, under
Section 20507(a)(3)(A)-(B), “the name of a registrant may not be removed from the official list of
eligible voters except — (A) at the request of the registrant;” or “(B) as provided by State law, by
reason of criminal conviction or mental incapacity.” See also Long, 682 F.3d at 334; N.C. State
5
For this reason, the provision is commonly known as the “Motor Voter Act.” ECF 43-1
at 5.
12
Conference of the NAACP, 2016 WL 6581284, at * 3. A state may meet the requirements of
52 U.S.C. § 20507(a)(4) by establishing a program under Section 20507(c)(1). See A. Philip
Randolph Inst. v. Husted, 838 F.3d 699, 707 (6th Cir. 2016) (“[W]e note that in subsection (c)(1)
of Section 8, Congress provided states with an example of a procedure for identifying and
removing voters . . . that would comply with the NVRA’s mandates and accompanying
constraints.”); Bellitto v. Snipes, 221 F. Supp. 3d 1354. 1364-65 (S.D. Fla. 2016) (“[T]he Court
finds . . . that full compliance with subsection (c)(1) ‘would comply with the NVRA’s mandates
and accompanying constraints.’”) (citation omitted).
Section 20507(c)(1) of 52 U.S.C. states:
(c) Voter removal programs
(1) A State may meet the requirement of subsection (a)(4) by establishing a
program under which—
(A) change-of-address information supplied by the Postal Service
through its licensees is used to identify registrants whose addresses may
have changed; and
(B) if it appears from information provided by the Postal Service that—
(i) a registrant has moved to a different residence address in the
same registrar’s jurisdiction in which the registrant is currently
registered, the registrar changes the registration records to show the
new address and sends the registrant a notice of the change by
forwardable mail and a postage prepaid pre-addressed return form
by which the registrant may verify or correct the address
information; or
(ii) the registrant has moved to a different residence address not in
the same registrar’s jurisdiction, the registrar uses the notice
procedure described in subsection (d)(2) to confirm the change of
address.
13
“Notice” is defined in 52 U.S.C. § 20507(d)(2)(A) as “a postage prepaid and pre-addressed
return card, sent by forwardable mail, on which the registrant may state,” inter alia, “his or her
current address[.]” And, “[i]f the registrant has changed residence to a place outside the registrar’s
jurisdiction in which the registrant is registered, information concerning how the registrant can
continue to be eligible to vote.” Id. § 20507(d)(2)(B).
The NVRA provides for a private right of action. 52 U.S.C. § 20510(b). However, before
an injured party may file suit, it must “provide written notice of the violation to the chief election
official of the State involved.” Id. § 20510(b)(1). And, the injured party may file suit only if “the
violation is not corrected within 90 days after receipt of a notice” or “within 20 days after receipt
of the notice if the violation occurred within 120 days before the date of an election for Federal
office[.]” Id. § 20510(b)(2). But, notice need not be provided if the violation occurred “within 30
days before the date of an election for Federal office.” Id. § 20510(b)(3).
As indicated, plaintiff’s Notice Letter requested documents pursuant to Section 8(i)(1) of
the NVRA. See ECF 1-1; see also ECF 1, ¶¶ 15-16. Of import here, NVRA § 8(i)(1) requires
states to make certain records available to the public for inspection. See 52 U.S.C. § 20507(i)(1);
see also Long, 682 F.3d at 334-35; Voter Integrity Protect of N.C., Inc., 301 F. Supp. 3d at 615.
Section 8(i) states, 52 U.S.C. § 20507(i) (emphasis added):
(i) Public disclosure of voter registration activities
(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
14
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.
B.
In Judicial Watch’s Notice Letter, it requested, inter alia, “[c]opies of the most recent
voter registration database from Montgomery County, Maryland.” ECF 1-1 at 5 (emphasis
added); see also ECF 1, ¶¶ 16, 27-28. However, as noted, Judicial Watch has clarified that it
seeks the most recent voter registration “list.”
The parties dispute whether a voter registration list is a “record[] 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). As with any question of
statutory interpretation, the analysis begins “with the text of the statute.” United States v. Serafini,
826 F.3d 146, 149 (4th Cir. 2016); see Jimenez v. Quarterman, 555 U.S. 113, 118 (2009);
Permanent Mission of India to the U.N. v. City of N.Y., 551 U.S. 193, 197 (2007); In re Wright,
826 F.3d 774, 779 (4th Cir. 2016).
The Court “must first determine whether the language at issue has a plain and unambiguous
meaning with regard to the particular dispute . . . .” United States v. Bly, 510 F.3d 453, 460 (4th
Cir. 2007). If the statutory language is unambiguous, “‘the sole function of the courts―at least
where the disposition required by the text is not absurd―is to enforce it according to its terms.’”
Clark v. Absolute Collection Serv., Inc., 741 F.3d 487, 490 (4th Cir. 2014) (quoting Lamie v. U.S.
Tr., 540 U.S. 526, 534 (2004)).
“[W]hen deciding whether the language is plain [the court] must read the words ‘in their
context and with a view to their place in the overall statutory scheme.’” King v. Burwell, 576 U.S.
___, 135 S. Ct. 2480, 2489 (2015) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S.
15
120, 133 (2000)) (internal quotation marks omitted). Courts “‘construe statutes, not isolated
provisions.’” Burwell, 135 S. Ct. at 2489 (quoting Brown & Williamson, 529 U.S. at 132). Indeed,
the “‘meaning—or ambiguity—of certain words or phrases may only become evident when placed
in context.’” Burwell, 135 S. Ct. at 2489 (quoting Brown & Williamson, 529 U.S. at 132).
Section 8(i)(1) of the NVRA states, in relevant part, 52 U.S.C. § 50207(i)(1):
Each State shall maintain for at least 2 years and 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.
(Emphases added).
The Fourth Circuit has clarified the meaning of Section 8(i)’s key terms. In Long, 682 F.3d
at 333, a non-profit organization requested that Virginia produce completed voter registration
applications, but Virginia refused. At summary judgment, the district court concluded that the
plaintiff was entitled to the applications, pursuant to Section 8(i) of the NVRA. The Fourth Circuit
affirmed, concluding that voter applications were encompassed within the “plain and ordinary
meaning” of Section 8(i)(1). Id. at 333.
The Court’s decision was primarily predicated on four determinations. First, the Court
determined that “the process of reviewing voter registration applications is a ‘program’ . . . because
it is carried out in the service of a specified end—maintenance of voter rolls—and it is an ‘activity’
because it is a particular task . . . of Virginia election employees.” Id. at 335 (emphases added;
citation omitted).
Second, the Court determined that “the ‘program’ and ‘activity’ of evaluating voter
registration applications is plainly ‘conducted for the purpose of ensuring the accuracy and
16
currency of official lists of eligible voters.’” Id. at 335 (quoting 42 U.S.C. § 1973gg-6(i)(1), as
amended, 52 U.S.C. § 20507(i)(1)). On this point, the Court reasoned that “the process of
reviewing voter registration applications keeps official voter lists both ‘accurate’—free from
error—and ‘current’—most recent.” Long, 682 F.3d at 335 (emphases added). By registering
eligible applicants and rejecting ineligible applicants, state officials “ensure that the state is
keeping a ‘most recent’ and errorless account of which persons are qualified or entitled to vote
within the state.” Id.
Third, the Court stated that “the registration applications requested by Project Vote are
clearly ‘records concerning the implementation of’ this ‘program[] and activit[y].’” Id. at 335-36
(quoting 42 U.S.C. § 1973gg-6(i)(1), as amended, 52 U.S.C. § 20507(i)(1)) (alterations in
original). This is because the applications are “‘the means by which an individual provides the
information necessary for [Virginia] to determine his eligibility to vote.’” Id. at 336 (citation
omitted).
Finally, in the Court’s view, Section 8(i)(1) “‘very clearly requires that all records be
disclosed.’” Id. at 336 (emphasis in original; citation omitted); see 52 U.S.C. § 20507(i)(1). In
this regard, the Court observed that “‘the use of the word all [as a modifier] suggests an expansive
meaning because all is a term of great breadth.’” Id. (quotation marks omitted) (alteration in
original) (quoting Nat’l Coal. for Students with Disabilities Educ. & Legal Def. Fund v. Allen, 152
F.3d 283, 290 (4th Cir. 1998)). Moreover, the Court was of the view that the phrase “shall
include,” as used in Section 8(i)(2) of the NVRA, “sets ‘a floor, not a ceiling’” as to the sorts of
“records” that must be disclosed under § 8(i)(1). Id. at 336-37 (citation omitted); see 52 U.S.C.
§ 20507(i)(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 . . . .”); see
17
also Jones v. Southpeak Interactive Corp. of De., 777 F.3d 658, 671 (4th Cir. 2015) (stating that
“the term ‘shall include’ sets a floor, not a ceiling” and that “[c]ourts have repeatedly indicated
that ‘shall include’ is not equivalent to ‘limited to.’”) (quoting Long, 682 F.3d at 337) (some
quotation marks omitted).
Accordingly, the Long Court concluded that completed voter registration applications “fall
within Section 8(i)(1)’s general disclosure mandate.” 682 F.3d at 336.
C.
Judicial Watch contends that the voter registration list is a “record” under Section 8(i).
Plaintiff starts from the premise that an individual voter registration is a Section 8(i) record and
therefore multiple voter registrations are Section 8(i) records as well. See ECF 52 at 9-10
(challenging defendants’ “obviously wrong” reasoning that a single individual voter registration
could be produced under Section 8(i), but two such records requested together could not). Because
a voter list is derived from multiple voter registrations, plaintiff concludes that voter registrations
are equivalent to a voter list. In essence, plaintiff reasons that if the voter registration for each
voter on a voter list is a Section 8(i) record, then the voter list should be a Section 8(i) record as
well. Id.
Defendants disagree. They acknowledge that election officials update MDVOTERS by
making changes to individual voter registrations. See, e.g., ECF 47-1 at 13 (“When an election
official processes voter registration transactions, the official makes changes to individual records
on a record-by-record basis.”). But, they distinguish a voter list from a collection of individual
voter registrations. A voter list, they contend, is “only a partial description of the contents of the
database for each of the retrieved records[.]” ECF 49-1 at 21. The “voter list acts as an index that
describes some of the contents of the database, but does not constitute the contents of the database
18
for each of the retrieved entries.” Id. at 22. Further, defendants maintain that the State does not
use a “voter list” for programs, activities, or much of anything at all. ECF 49-1 at 18, 19-20.
Instead, the State merely produces a voter list upon request by a Maryland voter. Id. at 20-21. The
State’s argument bottoms on the formal distinction between a voter list and the voter registrations
from which a list is derived. Therefore, the case turns on whether this distinction has legal
significance.
To answer this question, I first consider whether voter registrations are Section 8(i)
records. A voter registration consists of (1) voter data, containing the individual’s personal
information and registration status sorted into fields; (2) the images of the associated “transaction
source documents”; and (3) an activity log that records the changes made to the voter data. Like
the voter registration applications in Long, voter registrations are “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). The process of creating,
updating, and auditing registrations “is a ‘program’ . . . because it is carried out in the service of
a specified end—maintenance of voter rolls—and it is an ‘activity’ because it is a particular task
. . . of [Maryland] election employees.” 682 F.3d at 335 (quoting 42 U.S.C. § 1973gg-6(i)(1), as
amended, 52 U.S.C. § 20507(i)(1)).
In Maryland, State and local officials rely on voter registrations to register new voters
and to remove ineligible voters, thereby “‘ensuring the accuracy and currency of official lists of
eligible voters.’” Long, 682 F.3d at 335 (internal citation omitted). And, the voter registrations
are clearly records that concern the implementation of the program and activity of maintaining
accurate and current eligible voter lists. After all, they contain the information on which
19
Maryland election officials rely to monitor, track, and determine voter eligibility. See id. at
336.
Indeed, the Fourth Circuit resolved this issue in Long, 682 F.3d at 337. It said, id.:
The NVRA, including Section 8(i)(1), concerns voter registration, not
simply voter removal. Notably, the statute is entitled the “National Voter
Registration Act,” and is codified under a subchapter designated “National Voter
Registration[.]” Moreover, Section 8(i)(1) is located in a section titled
“Requirements with respect to administration of voter registration,” and a
subsection titled “Public disclosure of voter registration activities[.]” These
statutory labels reinforce the conclusion that Section 8(i)(1) governs voter
registration records. Because the NVRA requires disclosure of all materials
described in Section 8(i)(1), including voter registration records, defendants must
permit inspection of the completed applications, as instructed by the district court.
(Emphases in original) (internal citations omitted).
What, then, is a voter list, and how does it differ from a compilation of individual voter
registrations? Whereas a compilation of voter registrations contains voter data, transaction
source documents, and an activity log for each voter, a voter list contains only the voter data for
each voter. In fact, a voter list contains only a subset of the voter data, including information, such
as voter name and address, and excluding other information, such as a Social Security number.
Accordingly, a voter list is simply a pared down compilation of voter registrations. Defendants
provide a similar characterization: “The list is only a partial description of the contents of the
[MDVOTERS] for each of the retrieved records; the database contains more information for each
registered voter than is reflected on the voter list.” ECF 49-1 at 21.
The question is whether there is any legal significance to Judicial Watch’s characterization
of this information as a voter list, instead of a compilation of individual voter registrations. The
case of Project Vote v. Kemp, 208 F. Supp. 3d 1329 (N.D. Ga. 2016), provides guidance. In
that case, Project Vote requested that Georgia produce certain records pertaining to rejected
voter registrations.
Georgia Secretary of State Brian Kemp claimed, “Plaintiff has
20
consistently sought access to Defendant’s Database . . . . 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[.]” Id. at 1347
(internal citation omitted) (alteration omitted). Kemp also argued that, “to the extent Plaintiff
now requests individual voter records, it failed to provide statutory notice.” Id. (internal
citation omitted).
However, the Kemp Court rejected this line of argument. It reasoned, id. at 1348:
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 notice
provision, which “is to allow those violating the NVRA the opportunity to
attempt compliance with its mandates before facing litigation.” [Georgia State
Conference of N.A.A.C.P. v. Kemp, 841 F. Supp. 2d 1320, 1335 (N.D. Ga.
2012)].
I am persuaded by the Kemp Court’s focus on the information sought rather than the
particular language used to characterize that information. Here, Judicial Watch seeks the
“most recent voter registration database from Montgomery County, Maryland, including fields
indicating name, date of birth, home address, most recent voter activity, and active or inactive
status.” ECF 1-1 at 5. Defendants were provided notice that plaintiff seeks this information.
And, whether plaintiff characterized its request as one seeking a “voter registration database,”
a “voter list,” or “individual voter registrations,” defendants are well aware of the type of
records that could satisfy Judicial Watch’s request.
21
If Judicial Watch had submitted requests for voter registration data, corresponding to
the thousands of Montgomery County voters, the State would have been required to produce
each record, pursuant to Section 8(i). Instead, Judicial Watch merely submitted a single
request for a voter list containing and compiling the same information about the thousands of
voters in Montgomery County.
Although both scenarios seek the same information,
defendants believe that the NVRA would require compliance with only one of them.6
Rejecting Judicial Watch’s request based on semantics would be tantamount to requiring
Judicial Watch to make thousands of separate requests. Neither the NVRA, the Court, nor
common sense can abide such a purposeless obstruction.
And, this is particularly true because defendants can easily produce the requested voter
list. Indeed, in Judicial Watch’s Notice Letter, it requests “[c]opies of the most recent voter
registration database from Montgomery County, Maryland, including fields indicating name,
date of birth, home address, most recent voter activity, and active or inactive status.” See
ECF 1-1 at 5. With the exception of date of birth, a party can request this information through
the State’s “Application for Voter Registration Data.” See ECF 49-7. In fact, the State
concedes that, “except for the voter’s date of birth, all of the information requested by plaintiff
is available via request for a voter list under Elec. Law § 3-506.” ECF 49-1 at 38.
Nevertheless, defendants maintain that “plaintiff’s attempt to reframe its request as one
for ‘individual records’ . . . proves too much.” ECF 53 at 3. They assert that even under
plaintiff’s own framing, plaintiff would be entitled only to the “records associated with the
6
I leave open for now the issue of E.L. § 3-506, which defendants believe would free
them from complying with the NVRA in either circumstance.
22
database entries on which election officials conducted ‘voter list maintenance’ in the last two
years.” Id. (emphasis added).
Defendants seem to believe they need only produce records it used in the last two years
because Section 8(i)(1) states: “Each State shall maintain for at least 2 years and shall make
available for public inspection and, where available, . . . all records concerning the implementation
of programs and activities . . . .” 52 U.S.C. § 20507(i)(1). But, defendants misunderstand the
statute. It does not provide that a state need not produce a record if it is over two years old. Rather,
the statute provides that a state must retain the applicable records for at least two years.
Accordingly, if a state chooses to retain a record beyond two years, the NVRA requires the state
to produce that record. Accordingly, Maryland must produce an individual voter registration,
irrespective of its age, provided that it “concern[s] 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).
Defendants insist that a voter list is not a “record” under Section 8(i). They argue that
it is tantamount to a descriptive “listing or index” of the type rejected in Nat’l Sec.
Counselors v. CIA, 898 F. Supp. 2d 233 (D.D.C. 2012). ECF 49-1 at 17-18, 24-25. In their
view, such a “listing or index” would not be “based on a particular search,” but rather would
be a “new record” and therefore outside the scope of Section 8(i). Id. at 24-25, 29.
In National Security Counselors, 898 F. Supp. 2d 233, a non-profit challenged the
refusal of the Central Intelligence Agency (“CIA”) to turn over records in response to
plaintiff’s request under the Freedom of Information Act (“FOIA”). Among these were “(1)
a request for ‘database listings of all FOIA requesters from Fiscal Years 2008-2010 according
to the fee categories to which CIA assigned them,’ and (2) a request for ‘a record that would
23
indicate the ten individuals responsible for the most FOIA requests submitted (each) in Fiscal
Years 2008, 2009, and 2010.’” Id. at 268-69. The CIA declined to produce these records
because its “record systems are not configured in a way that would allow [it] to perform a
search reasonably calculated to lead to the responsive record without an unreasonable effort.’”
Id. at 245. The CIA contended that “processing requests for database listings would (a)
require it to create new records, as opposed to merely producing preexisting records and/or
(b) require it to conduct research, as opposed to merely performing a search.” Id. at 269.
Ultimately, the court sided with the CIA, finding that, while “an agency need not create
a new database or a reorganize its method of archiving data,” searches or sorting of a preexisting electronic database do “not involve the creation of a new record.” Id. at 270. The
court explained that “[s]orting a database by a particular data field (e.g., date, category, title)
is essentially ‘the application of codes or some form of programming,’ and thus does not
involve creating new records or conducting research—it is just another form of searching that
is within the scope of an agency’s duties in responding to FOIA requests.” Id. (quoting H.R.
Rep. No. 104-795, at 22 (1996)).
As discussed, the Maryland State Board of Elections relies on a standardized form
(ECF 49-7) for third-parties to request voter lists, like the one requested by Judicial Watch.
See ECF 49-1 at 38 (“[E]xcept for the voter’s date of birth, all of the information requested
by plaintiff is available via request for a voter list under Elec. Law § 3-506.”). Therefore, the
production of the requested list amounts to little more than “‘the application of codes or some
form of programming.’” National Security Counselors, 898 F. Supp. 2d at 270 (quoting H.R.
Rep. No. 104-795, at 22 (1996). Further, there is no contention that satisfying the request
would be unduly burdensome. See National Security Counselors, 898 F. Supp. 2d at 271 n.
24
26 (“The E–FOIA Amendments . . . stat[ed] that when an agency responds to a FOIA request,
it ‘shall make reasonable efforts to search for the records in electronic form or format[.]’”)
(quoting The Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104231, § 5, 110 Stat. 3048, 3050); see also id. at 271 n. 26 (“[I]f a FOIA request for ‘aggregate
data’ would require an unreasonably burdensome electronic search within the confines of an
agency’s automated information system, an agency need not conduct the search.”).
Last, defendants contend that construing a voter list as a Section 8(i) record would
result in “the circular and, on its face, nonsensical construction that the voter list is a record
concerning the implementation of a program and activity undertaken to ensure the accuracy
of the voter list.” ECF 49-1 at 30 (emphases in original). But, defendants are again quibbling
over semantics. One need only remember that a “voter list” is simply a partial compilation of
voter registrations to see that there is nothing “nonsensical” about this construction: “Each
State . . . shall make available for public inspection all [voter registration] 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).
D.
As noted, under E.L. § 3-506(a)(1), defendants claim that because Judicial Watch is not a
Maryland voter, it is not entitled to the State’s voter registration list. ECF 49-1 at 22. The State
law provides that, upon request, a “copy of a list of registered voters shall be provided to a
Maryland registered voter.” E.L. § 3-506(a)(1). In response, Judicial Watch maintains that E.L.
§ 3-506(a)(1) is preempted by Section 8(i) of the NVRA. ECF 43-1 at 22-24. Specifically,
25
Judicial Watch asserts that the State law is subject to field preemption, conflict preemption, and
obstacle preemption, which is a specific type of conflict preemption. Id.
But, defendants counter that the NVRA’s “public inspection” provision does not conflict
with Maryland election laws, because “nothing in the NVRA precludes Maryland from imposing
reasonable limitations around the public inspection that it provides.” ECF 49-1 at 34. In their
view, the limitation is justified because “Maryland voters bear the greatest risk that Maryland
registered voter lists will be misused for commercial gain, and are also the persons who are most
directly impacted by the accuracy and integrity of such lists.” Id.
“Federal law may preempt state law under the Supremacy Clause in three ways―by
‘express preemption,’ by ‘field preemption,’ or by ‘conflict preemption.’” Anderson v. Sara Lee
Corp., 508 F.3d 181, 191 (4th Cir. 2007) (citation omitted); see also Decohen v. Capital One, N.A.,
703 F.3d 216, 223 (4th Cir. 2012). These three types of preemption are forms of “ordinary
preemption” that serve as federal defenses to a state law claim. Lontz v. Tharp, 413 F.3d 435, 441
(4th Cir. 2005); see Wurtz v. Rawlings Co., LLC, 761 F.3d 232, 238 (2d Cir. 2014).
Ordinary preemption “regulates the interplay between federal and state laws when they
conflict or appear to conflict[.]” Decohen, 703 F.3d at 222; see Murphy v. NCAA, 584 U.S. ___,
138 S. Ct. 1461, 1476 (2018). “[S]tate law is naturally preempted to the extent of any conflict
with a federal statute,” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000), because
the Supremacy Clause of the Constitution, U.S. CONST. art. VI, cl. 2, provides that a federal
enactment is superior to a state law. As a result, pursuant to the Supremacy Clause, “[w]here state
and federal law ‘directly conflict,’ state law must give way.” PLIVA, Inc. v. Mensing, 564 U.S.
604, 617 (2011) (citation omitted); see also Merck Sharp & Dohme Corp. v. Albrecht, ___ U.S.
___, 2019 WL 2166393, at *8 (May 20, 2019) (discussing impossibility or conflict preemption,
26
and reiterating that “‘state laws that conflict with federal law are without effect,’” but noting that
the “‘possibility of impossibility [is] not enough’”) (citations omitted); Mutual Pharm. Co., Inc. v.
Bartlett, 570 U.S. 472, 480 (2013); Drager v. PLIVA USA, Inc., 741 F.3d 470, 475 (4th Cir. 2014)
(“The Supreme Court has held that state and federal law conflict when it is impossible for a private
party to simultaneously comply with both state and federal requirements.[] In such circumstances,
the state law is preempted and without effect.”)
“Federal preemption of state law under the Supremacy Clause—including state causes of
action—is ‘fundamentally . . . a question of congressional intent.’” Cox v. Duke Energy, Inc., 876
F.3d 625, 635 (4th Cir. 2017) (quoting English v. Gen. Elec. Co., 496 U.S. 72, 79 (1990)); see also
Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 9 (2003). Congress manifests its intent in three
ways: (1) when Congress explicitly defines the extent to which its enactment preempts state law
(express preemption); (2) when state law “regulates conduct in a field that Congress intended the
Federal Government to occupy exclusively” (field preemption); and (3) when state law “actually
conflicts with federal law” (conflict or impossibility preemption). English, 496 U.S. at 78-79; see
Sara Lee Corp., 508 F.3d at 191; see also Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88,
109 (1992) (describing field preemption as existing “where Congress creates a scheme of federal
regulation so pervasive as to leave no room for supplementary state regulation”).
Obstacle preemption is a type of conflict preemption. Sara Lee Corp., 508 F.3d at 191-92.
It applies “where state law ‘stands as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.’” Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995)
(quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). Typically, obstacle preemption arises
when a state law “interferes with the methods by which the federal statute was designed to reach
[its] goal.” Columbia Venture, LLC v. Dewberry & Davis, LLC, 604 F.3d 824, 829-30 (4th Cir.
27
2010) (citing Gade, 505 U.S. at 103) (internal quotations and citations omitted). Obstacle
preemption “requires the court independently to consider national interests and their putative
conflict with state interests,” and so “is more an exercise of policy choices by a court than strict
statutory construction.” Columbia Venture, LLC, 604 F.3d at 830 (quoting Abbot v. Am. Cyanamid
Co., 844 F.2d 1108, 1113 (4th Cir. 1988)).
Generally, a court presumes that Congress did not intend to preempt state law unless it was
Congress’s clear purpose to do so. Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991); Rice v.
Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). But, this is not so with Elections Clause
legislation, such as the NVRA. Inter Tribal, 570 U.S. at 14. This view is predicated on the text of
the Elections Clause, which provides U.S. Const. Art. I, § 4, cl. 1: “The Times, Places and Manner
of holding Elections for Senators and Representatives, shall be prescribed in each State by the
Legislature thereof; but the Congress may at any time by Law make or alter such Regulations,
except as to the places of chusing Senators.”
The Elections Clause “empowers Congress to ‘make or alter’ state election regulations[,]”
and therefore the “assumption that Congress is reluctant to pre-empt does not hold when Congress
acts” under that Clause. Inter Tribal, 570 U.S. at 14; see Harkless v. Brunner, 545 F.3d 445, 455
(6th Cir. 2008) (The rule “that Congress must be explicit when it encroaches in areas traditionally
within a state’s core governmental functions [] does not apply when Congress acts under the
Elections Clause, as it did in enacting the NVRA.”) (citations omitted). Instead, when considering
Elections Clause legislation, “the reasonable assumption is that the statutory text accurately
communicates the scope of Congress’s pre-emptive intent.” Inter Tribal, 570 U.S. at 14; id. at 15
(“[T]here is no compelling reason not to read Elections Clause legislation simply to mean what it
says.”).
28
In several cases, courts have concluded that the NVRA preempts state law in different
contexts. One example is an NVRA provision that preempts state laws requiring proof of
citizenship by requiring states to “accept and use” the federal registration form. See Inter Tribal,
570 U.S. at 11-13; see also Charles H. Wesley Educ. Found., Inc. v. Cox, 408 F.3d 1349, 1354
(11th Cir. 2005) (concluding that Georgia law prohibiting anyone other than registrars or
authorized personnel from accepting voter registrations was preempted by NVRA’s provision
regarding mailed applications); Project Vote v. Blackwell, 455 F. Supp. 2d 694, 703 (E.D. Ohio
2006) (compelling “voter registration workers who are compensated” to “pre-register with the
[Ohio] Secretary of State, undergo an ‘online-only’ Internet training program, and submit” a
special affirmation is not uniform and non-discriminatory as required by 52 U.S.C. § 20507(b)(1)).
As noted, Congress expressly stated that the NVRA has four purposes: to “establish
procedures that will increase the number of eligible citizens who register to vote in elections for
Federal office,” 52 U.S.C. § 20501(b)(1); to “enhance[] the participation of eligible citizens as
voters in elections for Federal office,” id. § 20501(b)(2); “to protect the integrity of the electoral
process,” id. § 20501(b)(3); and “to ensure that accurate and current voter registration rolls are
maintained.” Id. § 20501(b)(4). Section 8(i) of the NVRA provides for the disclosure of voter
registrations in order to “assist the identification of both error and fraud in the preparation and
maintenance of voter rolls.” Long, 682 F.3d at 339. But, E.L. § 3-506(a) limits that disclosure to
Maryland voters, thereby excluding organizations and citizens of other states from identifying
error and fraud.
Defendants maintain that E.L. § 3-506(a) is a “reasonable limit.”
They argue that
“Maryland has determined that the risks associated with disclosure of its registered voters’
personal information, when compiled in the form of a list of registered voters, were such that
29
disclosure should be made only to persons who bear those same risks—i.e., to registered Maryland
voters.” ECF 53 at 10. But, defendants reveal the emptiness of this rationale when they later claim
that “Elec. Law § 3-506(a) . . . does not preclude the recipient from sharing the list with other
persons who do not meet Maryland’s registered voter requirement.” ECF 53 at 11. That is, a
Maryland voter may request and obtain a voter list and immediately transfer it to Judicial Watch.
Consequently, E.L. § 3-506(a) does not advance a valid state interest. Rather, it obstructs the
effective implementation of Section 8(i) and hinders the realization of the NVRA’s enumerated
purposes.
Organizations such as Judicial Watch and Project Vote have the resources and expertise
that few individuals can marshal.
By excluding these organizations from access to voter
registration lists, the State law undermines Section 8(i)’s efficacy. Accordingly, E.L. § 3-506(a)
is an obstacle to the accomplishment of the NVRA’s purposes. It follows that the State law is
preempted in so far as it allows only Maryland registered voters to access voter registration lists.7
Because I conclude that E.L. § 3-506(a) is subject to obstacle preemption, I need not
consider field preemption or other types of conflict preemption.
The parties dispute whether Judicial Watch is entitled to the date of birth of each
Montgomery County voter. Judicial Watch maintains that “birthdate information enhances the
ability of an investigator to detect duplicate registrations as well as registrations containing age
7
In Fusaro v. Cogan, 930 F.3d 241, ___ (4th Cir. 2019), the Fourth Circuit recognized that
E.L. § 3-506 implicates First Amendment considerations, as a voter registration list “is a means of
political communication, and the combined effect of the content- and speaker-based restrictions
contained in § 3-506 present a sufficient risk of improper government interference with protected
speech that [plaintiff] may challenge § 3-506 in federal court.” (Alteration added). However, in
this case plaintiff has not asserted a First Amendment challenge to E.L. § 3-506,
30
information that is suspect.” ECF 52 at 24. Defendants contend that “the disclosure of date of
birth in conjunction with a person’s name enhances the risk of identity theft.” ECF 49-1 at 20; see
also ECF 53 at 11-12; ECF 53-1.
In this era of “big data” and massive data breaches, and the rampant misuse of personal
identifying information, defendants’ privacy concern seems legitimate. True the Vote, 43 F. Supp.
3d at 738 (“Identity theft is an ever-growing concern in this nation in the ‘age of big data’ and is
fueled by the disclosure, whether intentionally or inadvertently, of personal information such as
birthdates. Corporate tightening of security in response to recent major data breaches, and the news
coverage surrounding those breaches, are evidence of the public’s concern.”).
The parties’ limited briefing on this issue is inadequate, however. Accordingly, at this
time, the Court is not prepared to order defendants to produce the birthdates of thousands of
Maryland voters. But, I will allow the parties to brief this issue more fully. In doing so, the parties
should be sure to address whether the Fourth Circuit’s decision in Long, 682 F.3d at 339, is
controlling here. See also Project Vote/Voting for Am., Inc. v. Long, 889 F. Supp. 2d 778, 781
(E.D. Va. 2012).
3.
In the Complaint (ECF 1, ¶ 32), plaintiff also alleged that other parts of E.L. § 3-506(a)
conflict with Section 8(i) of the NVRA by:
a. requiring a written application to acquire a voter list;
b. requiring a statement under oath about the intended use of the voter list,
including that it will not be used for any purpose not related to the electoral
process;
c. permitting the State Board of Elections to regulate the authorization required
for providing a voter list;
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d. permitting the State Board of Elections to establish a fee for providing a list
(rather than merely a reasonable fee for copying a list); and
e. permitting the State Board of Elections to specify the information to be
provided with a voter list.
However, plaintiff now challenges only the State Board’s “unlimited authority to limit ‘the
information to be provided with a voter list,’ and in particular birthdate data.” ECF 52 at 21 n. 8.
It contends that none of the other provisions have “become an issue in this case.” Id. at 21. Indeed,
Judicial Watch has stated that it will “pay any standard fee.” ECF 43-6, ¶ 12. It also claims that it
“has no interest in using Montgomery County’s registration list for commercial purposes.” Id.
But, defendants note that E.L. § 3-506(c) prohibits the data “‘to be used for any purpose not related
to the electoral process.’” ECF 53 at 11 (quoting E.L. § 3-506(c)). And, there are non-commercial
purposes that are unrelated to the electoral process.
Nevertheless, Judicial Watch does not assert that these State laws are preempted, except as
to the date of birth. Therefore, Judicial Watch has established entitlement to the voter registration
list, subject to compliance with the relevant State law.
Conclusion
For the foregoing reasons, Judicial Watch is entitled to the voter registration list for
Montgomery County that includes fields indicating name, home address, most recent voter
activity, and active or inactive status. Therefore, I shall grant in part and deny in part the Motion
(ECF 43), and I shall deny the Cross Motion (ECF 49). An Order follows.
Date: August 8, 2019
/s/
Ellen Lipton Hollander
United States District Judge
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