Democratic Nat'l Comm. v. Ariz. Sec'y of State's Office

Democratic National Committee, DSCC,and Arizona Democratic Party, Plaintiffs, v. Arizona Secretary of State's Office, Michele Reagan,and Mark Brnovich, Defendants.

No. CV-16-01065-PHX-DLR

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

July 24, 2017

ORDER

Defendants Arizona Secretary of State Michele Reagan and Arizona Attorney General Mark Brnovich ("State Defendants") have moved to compel disclosure of numerous documents described by Plaintiffs Democratic National Committee (DNC), Democratic Senatorial Campaign Committee (DSCC), and Arizona Democratic Party (ADP) in their privilege logs, over which they have asserted a First Amendment privilege.¹ (Doc. 317.) The motion is fully briefed and the Court heard oral arguments from the parties during a July 14, 2017 telephonic conference. For the following reasons,the State Defendants' motion to compel is denied.

I. Legal Standard

The First Amendment protects political association and expression from government infringement, including actions that have a chilling effect on the exercise of these rights. Perry v. Schwarzenegger, 591 F.3d 1126, 1139 (9th Cir. 2009). "A party who objects to a discovery request as an infringement of the party's First Amendment rights is in essence asserting a First Amendment privilege." Id. at 1140 (emphasis omitted).

First Amendment privilege claims are evaluated under a two-part framework. The party asserting the privilege first must make "a prima facie showing of arguable first amendment infringement." U.S. v. Trader's State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983) (per curiam). This prima facie showing requires the party asserting the privilege to demonstrate that compelled disclosure "will result in (1) harassment, membership withdrawal, or discouragement of new members, or (2) other consequences which objectively suggest an impact on, or 'chilling' of, the members' associational rights." Brock v. Local 375, Plumbers Int'l Union of Am., 860 F.2d 346, 349-50 (9th Cir. 1988). If the party makes this prima facie showing, the burden shifts and the question becomes "whether the party seeking the discovery has demonstrated an interest in obtaining the disclosures it seeks . . . which is sufficient to justify the deterrent effect . . . on the free exercise . . . of [the] constitutionally protected right of association." Perry, 591 F.3d at 1140 (internal quotations and citation omitted).

At this second step, the court must "balance the burdens imposed on individuals and associations against the significance of the . . . interest in disclosure[.]" AFL-CIO v. FEC, 333 F.3d 168, 176 (D.C. Cir. 2003). In doing so, the court considers factors such as "the importance of the litigation; the centrality of the information sought to the issues in the case; the existence of less intrusive means of obtaining the information; and the substantiality of the First Amendment interest at stake[.]" Perry, 591 F.3d at 1141 (internal citations omitted). "Importantly, the party seeking the discovery must show thatthe information sought is highly relevant to the claims or defenses in the litigation—a more demanding standard of relevance than under Federal Rule of Civil Procedure 26(b)(1)." Id.

II. Discussion

A. Prima Facie Showing of Arguable First Amendment Privilege

The State Defendants seek compelled disclosure of the documents identified in Plaintiffs' privilege logs as: (1) "CD 7 Hispanic Crosstab;" (2) "RE: 2012 demographics;" (3) "Fwd: Data on Native Vote in Arizona;" (4) "RE: Precinct by precinct voter analysis;" (5) "Fwd: Latino vote plan update;" (6) "2012 Demographic Canvass Report;" (7) "2014 Post Election Analysis;" (8) "2012 Voted Report - Arizona;" (9) "Congressional District Voted Report 2012 (and 2014);" (10) "County Voted Report 2012 (and 2014);" (11) "Legislative District Voted Report 2012 (and 2014);" (12) "AZ Early Ballot Report;" (13) "HB 2305 Walk List;" (14) all documents identified as "Incident Data;" (15) "General 2012 Voting Incidents;" (16) "Copy of General Voting Incidents;" (17) "LBJ Data;" (18) "State Incident Data 2012." They also seek "any additional documents not otherwise noted that include voter demographic information." (Doc. 317 at 4 n.3.) The Court has no trouble concluding that Plaintiffs have established a prima facie case of arguable First Amendment privilege with respect to these requests.²

Plaintiffs offer the sworn declaration of Alexis Tameron, Chair of the ADP, who explains that most of the requested documents contain "estimates of demographic characteristics and likely voting behavior of the electorate," and "set forth the ADP's strategies and targets for conducting outreach to voters to communicate ADP's message, and for encouraging voters who associate with ADP and support ADP's values to turn out to vote." (Doc. 321-1 ¶ 5.) Further, the documents entitled "Incident Data," as well as "General 2012 Voting Incidents," "LBJ Data," and "State Incident Data 2012" contain

information generated though the ADP's election monitoring program and election incident hotline. Such informationincludes the mental impressions of ADP election observers regarding polling place incidents, which were intended to be communicated to ADP's voter protection team and voter protection legal counsel. It also includes information about individual voters, including voters' contacts with ADP. It also includes how incidents were categorized, providing insight as to what was being tracked. It also includes communications between members of ADP's voter protection team regarding how to respond to reports and questions. As a result, these documents provide a detailed account of ADP's election monitoring activities, including the location of precincts that it was targeting, the types of issues that it found most concerning, and its strategies in responding to incidents reported, including legal strategies.

(¶ 6.) Finally, the documents identified as "Data on Native Vote in Arizona" and "RE: Precinct by precinct voter analysis" contain "communications with strategic partners regarding strategy and analysis of voter demographics and likely voting behavior." (¶ 7.)

Tameron explains that "[d]isclosure of such communication risks revealing the viewpoints, political associations, and strategy of such partners," and might chill such partners from associating with the ADP in the future. (Id.) Moreover:

ADP would suffer significant prejudice if these internal planning materials were disclosed to its political opponents. The information would reveal to ADP's political opponents where and when it is likely to focus its activities in future elections, thereby severely impeding its ability to advocate successfully for its candidates and causes. This category of documents contains proprietary information about ADP's voter-tracking technology and information about ADP's use of modeling to locate and target Democratic voters. Such information is at the core of ADP's ability to organize and advance its mission by formulating strategy and messages in private. If ADP were forced to reveal such information, it would require ADP to change the way that it operates and communicates going forward, and would inhibit the free exchange of ideas that is necessary for it to pursue its goals. Such a change would make it impossible to ADP to succeed in effectively advancing its mission and accomplishing its goals.

(¶ 4.) The Court credits Tameron's affidavit and concludes that compelled disclosure of the documents at issue likely will chill the ADP and its members' associational rights. The burden, therefore, shifts to the State Defendants to demonstrate that its interest in disclosure outweighs the First Amendment rights at stake.

B. Balancing the Competing Interests

The Court finds that the State Defendants have not carried their burden to overcome Plaintiffs' First Amendment privilege. Other than a bare assertion that "[a]mong those documents withheld on the basis of a broad First Amendment privilege are those that may include highly relevant demographic information," (Doc. 317 at 4) the State Defendants' motion is devoid of analysis of the relevant factors enumerated in Perry. Having nonetheless considered the factors, the Court finds that they weigh against disclosure.

Although the documents over which Plaintiffs have asserted the First Amendment privilege might be relevant to this litigation under Rule 26(b)(1)'s more liberal standards, the State Defendants have not shown that they are "highly relevant" under the more demanding standard applicable to materials protected by the First Amendment. Indeed, Plaintiffs bear the burden of proof on their claims, and they have not relied and do not plan to rely on any privileged materials to do so. (Doc. 321-2 ¶¶ 4, 7.)

Plaintiffs also explain that many of the requested documents contain publicly available voter information "overlaid with internal predictive modeling of voter characteristics and likely voting behavior," and that the modeled data is "highly confidential," "created at considerable expense," and is used "to develop [the ADP's message, plan their outreach activities, and evaluate whether they have reached their goals." (Doc. 321 at 11; Doc. 321-1 ¶ 5.) The State Defendants have not demonstrated a need for the ADP's proprietary modeling and analyses, as opposed to the publicly available voter data upon which the ADP bases its predictive models.

On the other hand, Plaintiffs' attorney, Joshua Kaul, explained in his sworn declaration that in his experience litigating voting rights cases:

proprietary modeling by political parties, strategic discussions, internal party gathering of demographic information, and the like are not the type of comprehensive data typically used by experts to assess the impact of challenged voting laws. Voter data that is obtained from the State or counties will often be the most up to date and accurate data and, presumably, will be free from any potential manipulation or bias. Internal par

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