Judicial Watch, Inc. v. Commonwealth of Pennsylvania et al

Filing 57

MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Christopher C. Conner on 3/8/2021. (mw)

Case 1:20-cv-00708-CCC Document 57 Filed 03/08/21 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JUDICIAL WATCH, INC.,
Plaintiff
v.
COMMONWEALTH OF
PENNSYLVANIA, et al.,
Defendants

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CIVIL ACTION NO. 1:20-CV-708
(Judge Conner)

MEMORANDUM
Plaintiff Judicial Watch, Inc., commenced this civil action against various
state and county election officials pursuant to the National Voter Registration Act
(“NVRA”), 52 U.S.C. § 20501 et seq. Judicial Watch alleges that all defendants have
failed to fulfill their list-maintenance obligations under the NVRA, and that certain
defendants have also violated the NVRA’s disclosure requirements. The county
defendants move to dismiss Judicial Watch’s claims against them under Federal
Rule of Civil Procedure 12(b)(6). For the reasons that follow, we will grant the
motion to dismiss.
I.

Factual Background & Procedural History
Judicial Watch is a nonprofit educational organization. (See Doc. 1 ¶ 4).

Judicial Watch describes its mission as “promot[ing] transparency, integrity, and
accountability in government and fidelity to the rule of law.” (Id. ¶ 29). It fulfills
this mission “through public records requests and litigation, among other means.”
(Id.)

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Judicial Watch names 14 defendants in its complaint. We refer to the first
two defendants, the Commonwealth of Pennsylvania and Veronica Degraffenreid,
Acting Secretary of the Commonwealth of Pennsylvania,1 as the “Commonwealth
defendants.” (See id. ¶¶ 5-6). We refer to all other named defendants as the “county
defendants.” The county defendants are the Bucks County Commission; the Bucks
County Board of Elections; the Bucks County Registration Commission; Thomas
Freitag, Elections Director for Bucks County; the Chester County Commission; the
Chester County Board of Elections; the Chester County Registration Commission;
Sandra Burke, Director of Elections for Chester County; the Delaware County
Council; the Delaware County Board of Elections; the Delaware County
Registration Commission; and Laureen Hagan, Chief Clerk of the Elections Bureau
for Delaware County. (See id. ¶¶ 5-18). The individual defendants are sued in their
official capacities only. (See id. ¶¶ 6, 10, 14, 18).
In June of 2019, the United States Election Assistance Commission
(“EAC”) published its biennial report to Congress as required by law.2 Federal
regulations require states to provide various kinds of election data to the EAC for
use in this report. See 11 C.F.R. § 9428.7(b); (Doc. 1 ¶ 26). Among the data to

1

Pursuant to Federal Rule of Civil Procedure 25(d), Acting Secretary
Degraffenreid is automatically substituted as a defendant for former Secretary
Kathy Boockvar. See FED. R. CIV. P. 25(d).
2

See U.S. ELECTION ASSISTANCE COMM’N, ELECTION ADMINISTRATION &
VOTING SURVEY, 2018 COMPREHENSIVE REPORT, A REPORT TO THE 116TH CONGRESS
(2019) (hereinafter “2018 EAC REPORT”), https://www.eac.gov/sites/default/files/
eac_assets/1/6/2018_EAVS_Report.pdf; see also 52 U.S.C. § 20508(a)(3); (Doc. 1 ¶¶ 26,
34).
2

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be reported are: (1) the total number of active and inactive voters registered in the
state for each of the last two general federal elections, see 11 C.F.R. § 9428.7(b)(1)(2), and (2) the number of registrations removed from the state’s official voter lists
“for whatever reason” between the past two elections, see id. § 9428.7(b)(5). The
EAC collects this data by sending a survey to each state, to be completed by the
state’s chief election official “in consultation with their county and local officials.”
(Doc. 1 ¶ 35); 11 C.F.R. § 9428.7(a). The EAC publishes its underlying datasets—a
massive spreadsheet documenting each state’s responses to the 2018 EAC Survey
questions to the jurisdictional level—together with its annual report.3 The EAC
published revised datasets for the 2018 EAC Report on October 22, 2019, February
18, 2020, and July 15, 2020.4
Judicial Watch reviewed the 2018 EAC Report after its release. (Doc. 1 ¶ 36).
Judicial Watch also reviewed the February 18, 2020 datasets accompanying the
report. (See id. ¶ 35). Judicial Watch concluded that the three county defendants
reported too few registration removals in response to Question A9e of the 2018
EAC Survey, which requested the number of registrations removed for “[f]ailure

3

See Surveys and Data, U.S. ELECTION ASSISTANCE COMM’N, https://www.
eac.gov/research-and-data/datasets-codebooks-and-surveys (download “EAVS
Datasets Version 1.0 (released June 27, 2019)”).
4

See id. (download “EAVS Datasets Version 1.1 (released October 22, 2019),”
“EAVS Datasets Version 1.2 (released February 18, 2020),” or “EAVS Datasets
Version 1.3 (released July 15, 2020)”).
3

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to respond to notice sent and failure to vote in two most recent federal elections.”5
Judicial Watch believed the number of removals reported in the February 18, 2020
datasets for Question A9e—eight in Bucks County, five in Chester County, and four
in Delaware County—were “absurdly small,” indicating “a multi-year failure by
those jurisdictions to comply with the core requirements of Section 8(d)(2) of the
NVRA.” (Doc. 1 ¶¶ 39-41, 43-44); see also 52 U.S.C. § 20507(d)(1)(B), (2).
Judicial Watch also analyzed the total voter registrations reported in the 2018
EAC Report and, using “the best available census data,” calculated each defendant
county’s “registration rate.” (See Doc. 1 ¶¶ 51-52). To calculate these rates, Judicial
Watch divided each county’s total voter registrations by the number of voting-age
citizens within the county. (See id. ¶ 52). These calculations produced registration
rates of 96 percent for Bucks County and 97 percent for both Chester County and
Delaware County. (Id. ¶¶ 53-55). Judicial Watch alleges that these rates “are high
in comparison to other counties in Pennsylvania, and high in comparison to other
counties throughout the U.S.” and “are abnormally high.” (Id. ¶¶ 56-57). It claims
that this too indicates a failure to comply with the NVRA’s list-maintenance
requirements. (See id. ¶ 58).
On December 11, 2019, Judicial Watch sent letters to each group of county
defendants and to former Secretary Boockvar outlining its concerns. (See id. ¶ 59;
Docs. 1-2, 1-3, 1-4). In each letter, Judicial Watch articulated the above conclusions,
5

(See id. ¶¶ 38-41, 43); see also U.S. ELECTION ASSISTANCE COMM’N, 2018
ELECTION ADMINISTRATION & VOTING SURVEY (EAVS) 10, https://www.eac.gov/
sites/default/files/eac_assets/1/6/2018_EAC_Election_Administration_and_Voting_
Survey_Instrument.pdf.
4

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stated its belief that the defendant county was committing a “clear violation[]” of
the NVRA by failing to properly maintain its voter lists, and warned that “if the
foregoing violations are not corrected within 90 days of your receiving this letter,
Judicial Watch and those on whose behalf it has sent this letter may commence an
action against you in federal court.” (See Doc. 1-2 at 1-3; Doc. 1-3 at 1-3; Doc. 1-4
at 1-3). Each letter also included specific requests for documents pertaining to the
county defendants’ list-maintenance activities. (See Doc. 1-2 at 3-4; Doc. 1-3 at 3-4;
Doc. 1-4 at 3-4). Bucks County and Chester County sent responsive letters directing
Judicial Watch to reports compiled by the Pennsylvania Department of State. (See
Doc. 1 ¶¶ 63-76). Delaware County did not respond or provide any documents to
Judicial Watch. (Id. ¶¶ 77-79).
Judicial Watch filed its complaint in this case on April 29, 2020, asserting
violations of the NVRA’s list-maintenance requirements (Count I) and its disclosure
requirements (Count II). The Commonwealth defendants answered the complaint,
and the county defendants filed the instant motion to dismiss pursuant to Rule
12(b)(6). The motion to dismiss is now fully briefed and ripe for disposition.6
II.

Legal Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the

dismissal of complaints that fail to state a claim upon which relief may be granted.
FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the

6

The Commonwealth defendants filed a motion for judgment on the
pleadings on March 4, 2021. (See Doc. 54). The motion will be addressed by
separate memorandum and order once it is briefed.
5

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court must “accept all factual allegations as true, construe the complaint in the
light most favorable to the plaintiff, and determine whether, under any reasonable
reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. County
of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings,
Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). In addition to reviewing the facts
contained in the complaint, the court may also consider “exhibits attached to the
complaint, matters of public record, [and] undisputedly authentic documents if the
complainant’s claims are based upon these documents.” Mayer v. Belichick, 605
F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol.
Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)).
Federal notice and pleading rules require the complaint to provide “the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.”
Phillips, 515 F.3d at 232 (alteration in original) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)). To test the sufficiency of the complaint, the court conducts
a three-step inquiry. See Santiago v. Warminster Township, 629 F.3d 121, 130-31
(3d Cir. 2010). In the first step, “the court must ‘tak[e] note of the elements a
plaintiff must plead to state a claim.’” Id. at 130 (alteration in original) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Next, the factual and legal elements of a
claim must be separated; well-pleaded facts are accepted as true, while mere legal
conclusions may be disregarded. Id. at 131-32; see Fowler v. UPMC Shadyside, 578
F.3d 203, 210-11 (3d Cir. 2009). Once the court isolates the well-pleaded factual
allegations, it must determine whether they are sufficient to show a “plausible claim
for relief.” Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556); Twombly, 550
6

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U.S. at 556. A claim is facially plausible when the plaintiff pleads facts “that allow[]
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
III.

Discussion
The NVRA regulates voter registration. Congress codified the NVRA’s

purpose in its opening section:
(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.
52 U.S.C. § 20501(b). States must establish voter registration practices and
procedures consistent with these maxims. See id. § 20503(a).
Judicial Watch asserts two claims for alleged violations of the NVRA. In
Count I, Judicial Watch asserts that all defendants have failed to meet certain listmaintenance obligations under Section 8(a)(4) of the NVRA, 52 U.S.C. § 20507(a)(4).
In Count II, Judicial Watch contends that Acting Secretary Degraffenreid and the
Chester County and Delaware County defendants have also failed to meet their
disclosure obligations under Section 8(i) of the NVRA, 52 U.S.C. § 20507(i). The
county defendants move to dismiss Count I on its merits and Count II for failure
to provide requisite statutory notice.

7

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A.

Count I: List-Maintenance Obligations

The NVRA prohibits states from removing registered voters from official
voter lists unless the registrant requests removal, state law mandates removal, or
the registrant is required to be removed under Section 8(a)(4). See 52 U.S.C.
§ 20507(a)(3). Section 8(a)(4) in turn mandates that states shall
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, in
accordance with subsections (b), (c), and (d).
Id. § 20507(a)(4). At issue here is removal based on a change of address under
subsection (d). (See Doc. 1 ¶¶ 21, 43-46). Subsection (d) states that a registrant
cannot be removed from the official voter list unless they (A) confirm in writing that
they have moved outside the jurisdiction, see 52 U.S.C. § 20507(d)(1)(A), or (B) fail
to respond to an address-confirmation notice and then fail to vote in the next two
general federal elections, see id. § 20507(d)(1)(B).
Judicial Watch alleges in Count I that the county defendants have failed
to remove inactive voters rendered ineligible by operation of subsection (d)(1)(B).
(See Doc. 1 ¶¶ 34-58, 95-99). The county defendants dispute, as a threshold matter,
whether Section 8(a)(4) requires them to endeavor to remove voters who become
ineligible under both change-of-address provisions, or whether those provisions
are merely “some examples of appropriate programming” the use of which “is not
required.” (Doc. 35-1 at 11-12). In their reply brief, the county defendants elaborate

8

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on this theory, acknowledging that the NVRA requires them “to remove voters on
the basis of change of residence,” but asserting “it does not require them to do so by
using both procedures” set forth in subsection (d)(1). (See Doc. 49 at 10-11).
This interpretation finds no support in the plain language of the NVRA.
Section 8(a)(4) is unambiguous: states must make a reasonable effort to remove
from their official voter lists any registrants who are “ineligible . . . by reason of . . . a
change in the residence of the registrant, in accordance with subsections (b), (c), and
(d).” 52 U.S.C. § 20507(a)(4)(B) (emphasis added). Subsection (d) states that a voter
becomes ineligible—and thus subject to removal under Section 8(a)(4)—due to a
change in residence in one of two ways: by confirming in writing that they have
moved outside the jurisdiction, see id. § 20507(d)(1)(A), or by failing to respond to a
return card and then failing to vote in the next two federal general elections, see id.
§ 20507(d)(1)(B). Nothing in Section 8(a)(4) suggests, as the county defendants do,
that they may pick and choose which of these two types of change-in-residence
ineligibility to monitor for. The only plausible interpretation of Section 8(a)(4) is
that defendants must make reasonable efforts to remove voters rendered ineligible
under both provisions.
Nonetheless, Judicial Watch has not plausibly alleged that the county
defendants violated this obligation. In asserting that the county defendants failed to
cull registrants rendered ineligible under subsection (d)(1)(B), Judicial Watch relies
almost exclusively on the EAC’s February 18, 2020 datasets. (See Doc. 1 ¶¶ 38-46; id.
¶ 35 (directing court to “survey responses . . . compiled on the [EAC] webpage under
the heading ‘EAVS Datasets Version 1.2 (released February 18, 2020)’”)). Fatal to
9

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Judicial Watch’s claim against the county defendants is that the datasets upon
which it relies are no longer valid: the EAC has since published revised datasets
which reflect markedly higher numbers of Section 8(d)(1)(B) registration removals
in each of the three defendant counties, and those figures are corroborated by the
Commonwealth’s public records.7
In its complaint, Judicial Watch quotes Question A9e of the 2018 EAC
Survey, which asked states to identify the number of registrants removed during
the preceding two-year period for “[f]ailure to respond to notice sent and failure to
vote in two most recent federal elections.” (See Doc. 1 ¶ 38). Judicial Watch then
directs the court to the EAC’s February 18, 2020 datasets, which indicate that Bucks
County removed only eight registrations in this category, Chester County removed
only five, and Delaware County removed just four. (Id. ¶¶ 39-41). Judicial Watch
7

The county defendants rely primarily on two public records in support of
their motion: the EAC’s July 15, 2020 datasets, and the Pennsylvania Department of
State’s annual reports to the Pennsylvania General Assembly on the administration
of voter registration in Pennsylvania. (See Doc. 35-1 at 12-13; Doc. 49 at 6-9; see also
Docs. 35-2, 35-3). Judicial Watch never acknowledges the revised EAC datasets. As
to the Commonwealth’s reports, Judicial Watch asseverates that we cannot consider
them because they are not “undisputedly authentic” and its claims are not “based
upon” these documents. (See Doc. 46 at 15-16). Judicial Watch correctly notes that,
in resolving a Rule 12 motion, the court “must consider only the complaint, exhibits
attached to the complaint, matters of public record, [and] undisputedly authentic
documents if the complainant’s claims are based upon these documents.” Mayer,
605 F.3d at 230 (citing Pension Benefit Guar. Corp., 998 F.2d at 1196). But Judicial
Watch misunderstands the nature of these reports. Both the revised 2018 EAVS
Datasets and the Commonwealth’s annual reports are “public records” created
and published by government entities which we may properly consider in resolving
the county defendants’ motion. See Pension Benefit Guar. Corp., 998 F.2d at 1197
(observing that “a public record, for purposes of what properly may be considered
on a motion to dismiss, . . . include[s] . . . published reports of administrative
bodies”). We may and do consider these published governmental reports in
addressing the county defendants’ motion.
10

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contends that these numbers are “absurdly small” given the size of the defendant
counties and their respective voter lists. (See id. ¶ 43). To contextualize its claim,
Judicial Watch adds that, according to the 2018 EAC Report, Bucks County had
457,235 total registered voters during the relevant period; Chester County had
357,307 registered voters; and Delaware County had 403,371. (See id. ¶ 42).
We need not determine whether these numbers are indeed “absurdly small”
or otherwise indicative of a list-maintenance problem, because the public records
on which Judicial Watch relies have been revised. The EAC published its most
recent datasets on July 15, 2020, after it received “updated numbers for A9e,” the
precise survey question at issue here, from the Commonwealth. See Errata Note,
U.S. ELECTION ASSISTANCE COMM’N (July 15, 2020), https://www.eac.gov/sites/
default/files/Research/Errata_Note_2018_EAVS_v1_3.pdf. According to the July 15,
2020 datasets, Bucks County removed 15,714 registrants for failing to respond to an
address-confirmation card and then failing to vote in the next two federal general
elections; Chester County removed 11,519; and Delaware County removed 20,968.
See Surveys and Data, U.S. ELECTION ASSISTANCE COMM’N, https://www.eac.gov/
research-and-data/datasets-codebooks-and-surveys (download “EAVS Datasets
Version 1.3 (released July 15, 2020)”).
The revised EAC datasets are generally consistent with the figures outlined
in the Pennsylvania Department of State’s annual reports on voter registration.
See Annual Reports on Voter Registration, PA. DEP’T OF STATE, https://www.dos.pa.
gov/VotingElections/OtherServicesEvents/VotingElectionStatistics/Pages/AnnualReports-on-Voter-Registration.aspx (last visited Mar. 8, 2021). In its 2017 report,
11

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the Commonwealth indicated it had removed 15,827 registrations in Bucks County,
11,647 in Chester County, and 21,134 in Delaware County, when the registrant
“did not respond to mailing after two federal elections elapsed.”8 Its 2018 report
indicated that Bucks County had removed 830 registrants in this category, Chester
County had removed 499, and Delaware County had removed 433.9
Recognizing that these public records effectively torpedo its central theory,
Judicial Watch pivots in its opposition brief, claiming that the revised figures are
still “too low.”10 (See Doc. 46 at 19). Judicial Watch takes the two-year removal
totals from the 2017 and 2018 DOS Reports (16,657 for Bucks County; 12,146 for
Chester County; and 21,567 for Delaware County); divides those numbers by the
total registrations reported in the 2018 EAC Report (457,235 for Bucks County;
357,307 for Chester County; and 403,371 for Delaware County); and further divides
by two “to get . . . yearly average” removal rates of 1.8 percent for Bucks County, 1.7
percent for Chester County, and 2.7 percent for Delaware County. (See Doc. 46 at
8

See PA. DEP’T OF STATE, THE ADMINISTRATION OF VOTER REGISTRATION IN
PENNSYLVANIA: 2017 REPORT TO THE GENERAL ASSEMBLY 7, 35 (2018) (hereinafter
“2017 DOS REPORT”), https://www.dos.pa.gov/VotingElections/Candidates
Committees/RunningforOffice/Documents/2017%20Annual%20Report_final.pdf.
9

See PA. DEP’T OF STATE, THE ADMINISTRATION OF VOTER REGISTRATION IN
PENNSYLVANIA: 2018 REPORT TO THE GENERAL ASSEMBLY 8, 37 (2019) (hereinafter
“2018 DOS REPORT”), https://www.dos.pa.gov/VotingElections/OtherServicesEvents
/VotingElectionStatistics/Documents/Annual%20Reports%20on%20Voter%20Regist
ration/2018%20ANNUAL%20REPORT.pdf.
10

Judicial Watch makes this claim only with respect to the Pennsylvania
Department of State reports; indeed, it does not meaningfully acknowledge the
EAC’s July 15, 2020 datasets or the implications thereof at all. (See generally Doc.
46 at 15-19). We assume for the sake of argument that it intends this response to
apply to both sets of data.
12

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18-19). Judicial Watch then reiterates its complaint’s allegation that, according to
United States Census Bureau estimates, 8.2 percent of Bucks County residents and
14 percent of Chester County residents “are living in a different house than the one
they were living in one year previously.”11 (Id. at 19; see also Doc. 1 ¶¶ 65, 71). The
implication, albeit unstated, of Judicial Watch’s observations is that, because the
Section 8(d)(1)(B) removal rate for each county does not match or approach the
estimated change-of-residence rate, the county defendants must be failing to meet
their obligations under Section 8(a)(4). (See Doc. 46 at 18-19).
This theory is implausible for several reasons. First, and most importantly,
Section 8(a)(4) does not require a perfect removal effort; it only requires states to
“make[] a reasonable effort” to remove registrants who have died or changed their
residence. See 52 U.S.C. § 20507(a)(4). Second, as the county defendants observe,
Judicial Watch’s averaging overlooks that the removal requirement under Section
8(d)(1)(B) is triggered by a registrant’s failure to vote in a second federal general
election after failing to respond to an address-confirmation card; as a result, the
vast majority of these removals necessarily occur in odd-numbered years, making
a two-year average unhelpful. See 52 U.S.C. § 20507(d)(2); (see also Doc. 49 at 7
n.5).12 Third, Judicial Watch’s suggestion that the number of Section 8(d)(1)(B)

11

Judicial Watch does not provide similar Census Bureau estimates for
Delaware County. (See generally Docs. 1, 46).
12

We note that dividing the combined two-year removal totals for 2017 and
2018 into the total registrations reported in the 2018 EAC Report yields removal
rates of 3.6 percent for Bucks County, 3.4 percent for Chester County, and 5.3
percent for Delaware County.
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removals should approach the number of moves estimated by the Census Bureau
ignores that a person who moves can have their voter registration removed in any
number of ways: Section 8(d)(1)(B) provides one mechanism, but they might also
return an address-confirmation card resulting in removal under Section 8(d)(1)(A);
self-report a change in address directly to the county; or confirm a move through
the Pennsylvania Department of Transportation. See 52 U.S.C. § 20507(d)(1)(A),
(B); see also 2017 DOS REPORT, supra, at 7 (listing various categories for removal);
2018 DOS REPORT, supra, at 8 (same). Judicial Watch’s reliance on Census Bureau
data therefore does not “nudge[]” its list-maintenance claim “across the line from
conceivable to plausible.” See Iqbal, 556 U.S. at 680 (quoting Twombly, 550 U.S. at
570).
The complaint’s final salvo is an allegation that the registration rates for the
defendant counties indicate they are “failing to remove old, inactive registrations”
from their voter lists. (See Doc. 1 ¶ 58). Judicial Watch avers that Bucks County
has a registration rate of 96 percent, and Chester County and Delaware County
have registration rates of 97 percent. (See id. ¶¶ 53-55). The complaint concludes
that these rates are “abnormally high” and suggests that a list-maintenance failure
may be to blame. (See id. ¶¶ 57-58).
Judicial Watch fails to plead a plausible Section 8(a)(4) claim based on
allegedly high registration rates. The complaint offers no factual context for its
conclusory assertion that the county defendants’ registration rates are “abnormally
high.” (See id. ¶¶ 51-58). Nor does it explain what it thinks a “normal” registration
rate is or should be. (See generally id.) Moreover, the cases cited by Judicial Watch
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for the proposition that high registration rates can, on their own, state a claim for
a Section 8 violation are distinguishable. In both cases, the registration rate was
more than 100 percent—meaning there were more registered voters than eligible
voters—and both courts reasonably inferred that there might be a list-maintenance
problem. See Voter Intergrity Project NC, Inc. v. Wake Cnty. Bd. of Elections, 301
F. Supp. 3d 612, 618-20 (E.D.N.C. 2017) (registration rate of 104.75 percent permits
inference of Section 8 violation); Am. C.R. Union v. Martinez-Rivera, 166 F. Supp.
3d 779, 805 (W.D. Tex. 2015) (same for 105 percent rate). Registration rates below
100 percent, without more, simply do not permit the same inference.
We find that Judicial Watch fails to state a plausible claim that the county
defendants have not complied with their list-maintenance obligations under Section
8 of the NVRA. Nonetheless, the deficiencies in this claim are factual rather than
legal in nature, and thus capable of being cured. Therefore, and noting the county
defendants’ recommendation to this effect, (see Doc. 49 at 9), we will dismiss Count
I without prejudice and with leave to amend.
B.

Count II: Disclosure Obligations

The county defendants13 move to dismiss Count II for failure to provide
requisite pre-suit notice. Notice is a precondition to filing suit under the NVRA.
A person aggrieved by a violation of the NVRA must first provide “written notice
of the violation to the chief election official of the State involved” before they may
13

Judicial Watch does not name the Bucks County defendants in Count II,
which it asserts against only Acting Secretary Degraffenreid and the Chester
County and Delaware County defendants. Our use of “the county defendants” in
this section refers only to the Chester County and Delaware County defendants.
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proceed with a civil action concerning that violation. See 52 U.S.C. § 20510(b)(1)-(2).
Ordinarily, a party must wait 90 days after providing written notice before filing a
civil action, to allow the potential NVRA defendant time to correct the violation.
See id. § 20510(b)(2). The notice period is accelerated if a violation occurs close
in time to a federal election: when a violation occurs within 120 days of a federal
election, a party need only wait 20 days before filing suit, and the notice period is
eliminated entirely when a violation occurs within 30 days of an election, see id.
§ 20510(b)(2), (3).
The purpose of the NVRA’s notice requirement is to “provide states . . . an
opportunity to attempt compliance before facing litigation.” Scott v. Schedler, 771
F.3d 831, 836 (5th Cir. 2014) (quoting Ass’n of Cmty. Orgs. for Reform Now v. Miller,
129 F.3d 833, 838 (6th Cir. 1997)) (alteration in original). Notice is sufficient “when
it (1) sets forth the reasons that a defendant purportedly failed to comply with the
NVRA, and (2) clearly communicates that a person is asserting a violation of the
NVRA and intends to commence litigation if the violation is not timely addressed.”
Pub. Int. Legal Found. v. Boockvar, 370 F. Supp. 3d 449, 457 (M.D. Pa. 2019)
(Conner, C.J.) (citing Bellitto v. Snipes, 268 F. Supp. 3d 1328, 1334 (S.D. Fla. 2017);
Project Vote, Inc. v. Kemp, 208 F. Supp. 3d 1320, 1348 (N.D. Ga. 2016); Judicial
Watch, Inc. v. King, 993 F. Supp. 2d 919, 922 (S.D. Ind. 2012)).
Judicial Watch mailed letters to Chester County and Delaware County on
December 11, 2019, copying the Commonwealth’s Secretary of State. (See Doc. 1
¶ 59). In the first part of the letters, Judicial Watch described the list-maintenance
requirements of Section 8(a)(4) and Section 8(d) of the NVRA. (See Doc. 1-3 at 1-2
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(Chester); Doc. 1-4 at 1-2 (Delaware)). Judicial Watch then alleged that the county
defendants had committed “clear violations of Section 8(a)(4) of the NVRA” by
failing to remove registrants in accordance with Section 8(d)(1)(B), outlined its
theory in support of that claim, and warned the county defendants that it might sue
if the alleged violations were not corrected within 90 days. (See Doc. 1-3 at 2-3; Doc.
1-4 at 2-3). Judicial Watch asked each county defendant to reply with their “plans
for correcting these violations.” (See Doc. 1-3 at 3; Doc. 1-4 at 3).
In a separate portion of each letter, Judicial Watch addressed a different
section of the NVRA, Section 8(i)(1), which requires state officials to make records
concerning their list-maintenance activities available to the public for inspection.
(See Doc. 1-3 at 3; Doc. 1-4 at 3); 52 U.S.C. § 20507(i)(1). Judicial Watch enumerated
eight categories of documents and asked the county defendants to provide it with
those documents “within two weeks of the date of this letter.” (Doc. 1-3 at 3-4; Doc.
1-4 at 3-4). Judicial Watch then admonished: “If you fail to do so, we will deem it
an independent violation of the NVRA.” (Doc. 1-3 at 3; Doc. 1-4 at 3).
The county defendants do not dispute that these letters constitute adequate
pre-suit notice for Judicial Watch’s list-maintenance claim under Section 8(a)(4).
They do dispute whether the letters provide adequate pre-suit notice of Judicial
Watch’s separate failure-to-disclose claim under Section 8(i). (See Doc. 35-1 at 1620; Doc. 49 at 11-14). We agree with the county defendants that they do not, for a
simple reason: no disclosure violation had yet occurred at the time of Judicial
Watch’s letters.

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The earliest a disclosure violation could have occurred was two weeks after
the letters were sent, since Judicial Watch had given the county defendants at least
that long to comply. (See Doc. 1-3 at 3-4; Doc. 1-4 at 3-4). The letters warned the
county defendants that they might be in violation in the future, should they not
timely comply with Judicial Watch’s records requests under Section 8(i). (See Doc.
1-3 at 3-4; Doc. 1-4 at 3-4). But a prospective violation is not a realized one, and,
logically, a violation cannot be noticed or cured before it occurs. Cf. Bellitto, 268 F.
Supp. 3d at 1334 (“[T]he specific purpose of the notice requirement [is] . . . to allow
the potential NVRA defendant a curative period during which [they] may correct
the violation identified . . . .”). Judicial Watch never provided a post-violation notice
specific to its failure-to-disclose claim to alert the defendants that it thought their
responses (or lack thereof) were insufficient, and it thus deprived them of their

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statutorily mandated opportunity to cure that perceived deficiency prior to suit.14
It would “defy logic and frustrate the purpose of the NVRA’s notice provision” to
permit Judicial Watch’s December 2019 letters to “serve such a dual purpose—
that is, make an initial request for records and at the same time notify the records
keeper of his or her failure to satisfy that request.” See id. at 1334-35 (dismissing
unnoticed failure-to-disclose claim that “sought to ‘piggyback’” on duly noticed listmaintenance claim). We will thus dismiss Count II without prejudice for failure to
provide proper notice under the NVRA.

14

Judicial Watch cites a string of cases to support its view that “the NVRA
does not require Plaintiff to send a second notice of violation letter.” (Doc. 46 at 22).
This argument fundamentally misapprehends the issue: the county defendants do
not argue that Judicial Watch was required to send a second notice of violation; they
argue that, as to the failure-to-disclose claim, it never sent a first notice of violation.
Moreover, no case cited by Judicial Watch considered whether a preemptive, previolation notice would satisfy the NVRA. In Judicial Watch, Inc. v. Lamone, 399
F. Supp. 3d 425 (D. Md. 2019), Judicial Watch (as here) sent an omnibus notice
of violation (claiming defendants had violated Section 8(a)(4)’s list-maintenance
requirement) and request for records (requesting disclosure of certain documents
under Section 8(i)). See Lamone, 399 F. Supp. 3d at 430-31. Defendants did not
argue that the failure-to-disclose claim had been prematurely noticed; the parties’
dispute, and the court’s analysis, centered on the phrasing used in Judicial Watch’s
request and whether the documents it sought were subject to disclosure. See id.
at 436-442. The remaining cases cited by Judicial Watch are distinguishable. See
Miller, 129 F.3d at 837-38 (holding that requiring second notice by individual
plaintiff after first notice by organizational plaintiff on same violation, when state
had made clear by executive order that it would not comply, would be futile); King,
993 F. Supp. 2d at 922-23 (applying Miller and holding that plaintiff True the Vote’s
claim should not be dismissed for lack of notice when coplaintiff Judicial Watch had
properly noticed same violation); see also Scott, 771 F.3d at 835-36 (declining to
apply Miller and limiting decision to its facts).
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IV.

Conclusion
For the reasons set forth herein, the court will grant the county defendants’

motion to dismiss Counts I and II of Judicial Watch’s complaint. Dismissal will be
without prejudice and with leave to amend.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner
United States District Judge
Middle District of Pennsylvania
Dated:

March 8, 2021