Ministries v. Sec'y of State for Ala.

105 F.4th 1324

GREATER BIRMINGHAM MINISTRIES, Plaintiff-Appellee, v. SECRETARY OF STATE FOR the State of ALABAMA, Defendant-Appellant.

No. 22-13708

United States Court of Appeals, Eleventh Circuit

Filed: June 26, 2024

Appeal from the United States District Court for the Middle District of Alabama, D.C. Docket No. 2:22-cv-00205-MHT-SMD

Blair S. Bowie, Danielle Marie Lang, Christopher Myron Lapinig, Valencia Richardson, Alice Clare Campbell Huling, Mark Gaber, Campaign Legal Center, Washington, DC, Joseph Mitchell McGuire, McGuire & Associates, LLC, Montgomery, AL, for Plaintiff-Appellee.

Edmund Gerard LaCour, Jr., Misty Shawn Fairbanks Messick, James W. Davis, Steven Marshall, Benjamin Seiss, Alabama Attorney General's Office, Montgomery, AL, for Defendant-Appellant.

Noah Bokat-Lindell, DOJ-Crt, Appellate Section, Washington, DC, Tovah Calderon, U.S. Department of Justice, Civil Rights Division, Appellate Section, Washington, DC, for Amicus Curiae United States.

Before Grant, Abudu, and Hull, Circuit Judges.

Grant, Circuit Judge:

More than thirty years ago, the National Voter Registration Act required states to adopt a wide variety of policies designed to increase both voter participation and election integrity. The disclosure provision of that Act serves both goals by granting voters transparency into a state's voter registration practices. See 52 U.S.C. § 20507(i). Greater Birmingham Ministries invoked the public disclosure provision when it sought electronic production of several voter lists, including records of individual felons disqualified from voting by Alabama. This appeal asks whether those records fall within the Act's disclosure provision, whether they must be produced electronically, and, if so, whether the Act limits the price Alabama can charge.

The public disclosure provision squarely covers the records Greater Birmingham Ministries seeks. These felon disqualification records concern Alabama's activities "ensuring the accuracy and currency of" its voter lists. Id. § 20507(i)(1). Electronic production, however, is not required for these records—or any others—under the Act. Instead, the Act mandates "public inspection" and "photocopying at a reasonable cost." Id. Electronic production is neither. For that reason, the Act does not govern what fee, if any, Alabama is entitled to charge for electronic production of the records here. We therefore reverse the district court's order holding otherwise.

I.

In 1993, to address flagging voter participation in federal elections, Congress adopted the National Voter Registration Act, 52 U.S.C. § 20501 et seq. See Bellitto v. Snipes, 935 F.3d 1192, 1198 (11th Cir. 2019). The Act had "twin objectives": to increase turnout by easing voter registration barriers and to protect election integrity by maintaining accurate and current voter rolls. Id.; see 52 U.S.C. § 20501(b). In service of these goals, the Act required the states to adopt standardized registration procedures. See 52 U.S.C. §§ 20503-20506. The Act also introduced new federal requirements designed to ensure accurate voter rolls. Bellitto, 935 F.3d at 1198-99; see 52 U.S.C. § 20507.

The public disclosure provision, 52 U.S.C. § 20507(i)(1), is among those requirements. It covers a wide range of records—all those "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 Act requires states to "maintain" these records "for at least 2 years" and make them available for "public inspection and, where available, photocopying at a reasonable cost." Id. The Act exempts two categories of records from disclosure: those relating to an individual's choice to decline voter registration, and those revealing the identity of a voter registration agency through which a particular voter was registered. Id.

Less than a decade later, in response to election-administration inconsistencies revealed during the 2000 election, Congress passed the Help America Vote Act, requiring each state to maintain "a single, uniform, official, centralized, interactive computerized statewide voter registration list." 52 U.S.C. § 21083(a)(1)(A); see Ala. Code § 17-4-33 (implementing the Help America Vote Act); Bellitto, 935 F.3d at 1199.¹ Alabama maintains its voter registration information in a compliant electronic database. That database includes all registered voters, both active and inactive, as well as voters who were removed from the rolls and registration applications that were denied. The database also includes the reasons for these removals or denials. The Alabama Secretary of State, custodian of these records, is required by state law to sell lists of active and inactive voters to members of the public for "a uniform charge." Ala. Code § 17-4-38(a), (b). Requestors can specify the parameters of their searches through an online portal, and receive the records electronically for a longstanding fee of one cent per name, or in hardcopy for a fee of one dollar per page.

Greater Birmingham Ministries describes itself as a "multi-faith, multi-racial organization that provides emergency services for people in need and engages the poor and the non-poor in systemic change efforts to build a strong, supportive, engaged community and pursue a more just society for all people." Greater Birmingham Ministries, Who We Are, https://gbm.org/who-we-are [https://perma.cc/C8LP-584A]. As part of its mission, the ministry promotes voter registration efforts around Alabama, including by helping would-be voters navigate Alabama's felon disenfranchisement rules. One of those rules is that citizens convicted of a "felony involving moral turpitude" lose the right to vote. Ala. Const. art. VIII, § 177(b). State law specifies the disqualifying felonies and provides that a disenfranchised felon is eligible to have his right to vote restored after meeting certain conditions, including completion of his sentence and payment of any fines. Ala. Code §§ 15-22-36.1, 17-3-30.1. Greater Birmingham Ministries educates citizens with non-disqualifying felonies about the fact that they can still vote, identifies eligible voters with non-disqualifying felonies who were erroneously removed from the voter rolls, and guides disqualified felons through the process of restoring their voting rights.

Between May and September of 2021, Greater Birmingham Ministries submitted two record requests to the Secretary. First, it requested the list of every voter removed from the statewide voter rolls following the 2020 general election. Next, it requested lists from the past two years showing both registered voters who were removed from the rolls and rejected voter registration applications. This second request was later narrowed to only those records related to voters who were removed or denied registration because of a disqualifying felony conviction. Greater Birmingham Ministries was clear that it was making these requests under the National Voter Registration Act, and asked to receive both sets of records in electronic format at no cost.

The Secretary's response was mixed. He offered to provide an electronic version of the first list of voter records—all voters purged from the voting rolls following the 2020 general election—at a cost of one cent per name. He also offered to allow in-person inspection of this list so that Greater Birmingham Ministries could decide whether to purchase a copy.² But the Secretary refused to provide any records at all related to felony disqualifications; he asserted that the request exceeded the scope of the Act.

Following these refusals, in December 2021 and January 2022, Greater Birmingham Ministries sent two letters notifying the Secretary of its intent to sue—a required precursor to any private suit under the National Voter Registration Act. See 52 U.S.C. § 20510(b). The notice letters explained that Greater Birmingham Ministries understood the Act to require that "electronic records be made available at no cost" and alleged that the Secretary's failure to provide the records in this way violated the law. The Secretary did not respond. After waiting the statutorily required twenty days, Greater Birmingham Ministries filed suit. See id. § 20510(b)(2).

After a two-day bench trial, the district court ruled that the National Voter Registration Act entitled Greater Birmingham Ministries to both sets of records: the list of all voters removed from the rolls after the 2020 election, and the records of all voters removed or denied registration because of felony convictions in the last two years. While the court agreed that the Act did not generally require covered records to be produced in an electronic format, it held that electronic disclosure was required "in the specific circumstances of this case, where the records are already kept in digital form, where providing them in any other form would unduly interfere with the NVRA's express purposes, and where the window of time before the registration deadline for the next election is so slim." As for cost, the court ruled that the Act entitled the Secretary to charge a "reasonable fee," connected "to the actual costs he incurs in producing responsive voter records."

Because Alabama's voter registration deadline for the 2022 general election was only weeks away at that point, the district court ordered the Secretary to provide Greater Birmingham Ministries the requested records "immediately." The court then allowed the parties two weeks after the general election to reach agreement on a "reasonable fee."

The Secretary complied with the injunction and delivered the requested records. The one-cent-per-name charge would have been $1,591.37. But "[w]ithout retreating from his position" that he was entitled to charge one cent per voter record, the Secretary said that the electronic production had cost his office $429.17. Greater Birmingham Ministries, "without agreeing to the basis for the...