Judicial Watch, Inc. v. Lamone

399 F.Supp.3d 425

JUDICIAL WATCH, INC., Plaintiff,

v.Linda LAMONE, et al., Defendants.

Civil Action No. ELH-17-2006

United States District Court, D. Maryland.

Signed August 8, 2019

Eric William Payne Lee, Ramona R. Cotca, Robert D. Popper, Judicial Watch, Inc., Washington, DC, H. Christopher Coates, Pro Hac Vice, Law Offices of H. Christopher Coates, Charleston, SC, for Plaintiff.

Robert A Scott, Andrea William Trento, Office of the Attorney General, Baltimore, MD, for Defendants.

Ellen Lipton Hollander, United States District Judge

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 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 43-6. 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).

I. 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).

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 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 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 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...