Project Vote, Inc. v. Kemp

208 F.Supp.3d 1320

PROJECT VOTE, INC., Plaintiff,

v.Brian KEMP, in his official capacity as Secretary of State and Chief Election Official for the State of Georgia, Defendant.

1:16-cv-2445-WSD

United States District Court, N.D. Georgia, Atlanta Division.

Signed September 19, 2016

Filed September 20, 2016

David E. Rhinesmith, David A. Young, Jonathan R. Ference-Burke, Nicole Durkin, Ropes & Gray, LLP, Michelle Kanter Cohen, Project Vote, Washington, DC, James William Cobb, Timothy Brandon Waddell, Amy Michaelson kelly, Caplan Cobb LLP, Atlanta, GA, John C. Ertman, Ropes & Gray, LLP, New York, NY, for Plaintiff.

Josiah Benjamin Heidt, Georgia Department of Law, Cristina Correia, Attorney General's Office, Atlanta, GA, for Defendant.

OPINION AND ORDER

WILLIAM S. DUFFEY, JR., UNITED STATES DISTRICT JUDGE

This matter is before the Court on Defendant Brian Kemp's ("Defendant") Motion to Dismiss [20]. Also before the Court is Plaintiff Project Vote, Inc.'s ("Plaintiff") Motion for Preliminary Injunction [12].

I. BACKGROUND

A. Summary

Plaintiff seeks the disclosure, pursuant to the National Voter Registration Act of 1993 ("NVRA"), 52 U.S.C. § 20501, et seq. , of certain records relating to the reasons Defendant rejected, canceled, or otherwise did not add voter registration applicants to Georgia's voter roll. Plaintiff requests these records be produced prior to Georgia's October 11, 2016, voter registration deadline. Defendant contends the records Plaintiff seeks are not subject to disclosure under the NVRA.

B. Background of the NVRA

The NVRA became effective on January 1, 1995. In its first section, Congress made explicit the findings and purposes underlying the act. 52 U.S.C. § 20501. Congress found "(1) the right of citizens of the United States to vote is a fundamental right; (2) it is the duty of the Federal, State, and local governments to promote the exercise of that right; and (3) discriminatory and unfair registration laws and procedures can have a direct and damaging effect on voter participation in elections for Federal office and disproportionately harm voter participation by various groups, including racial minorities." Id. § 20501(a)(1)–(3). The purposes of the NVRA are: "(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." Id. § 201501(b)(1)-(4). The NVRA's "primary emphasis" is to "simplify the methods for registering to vote in federal elections and maximize such opportunities for a state's every citizen." United States v. Louisiana , 196 F. Supp. 3d 612, 627, 2016 WL 4055648, at *7 (M.D.La. July 26, 2016) (citing Colon – Marrero v. Velez , 813 F.3d 1, 9 n. 13 (1st Cir.2016) ). It also seeks to " ‘protect the integrity of the electoral process.’ " Id. (quoting Nearman v. Rosenblum , 358 Or. 818, 371 P.3d 1186 (2016) ).

The NVRA requires, in addition to any other method of voter registration provided under State law, that each State shall establish the following three procedures to register to vote in Federal elections: (1) pursuant to Section 5, "by application made simultaneously with an application for a motor vehicle driver's license...;" (2) pursuant to Section 6, "by mail application...;" and (3) pursuant to Section 7, "by application in person" at a voter registration agency ("VRA"). 52 U.S.C. § 20503(a)(1)–(3).

Section 7 defines VRAs and includes the requirement that States designate as VRAs "all offices in the State that provide public assistance" and "all offices in the State that provide State-funded programs primarily engaged in providing services to persons with disabilities." Id. § 20506(a)(2).

Section 8 of the NVRA, titled "Requirements with respect to administration of voter registration," addresses the States' administration of the voter registration lists to "ensure that any eligible voter is registered to vote in an election." Id. § 20507(a)(1). It provides a registration deadline for the three registration methods detailed in Sections 5-7. Id. § 20507(a)(1)(A)-(C).¹ To ensure accurate voter registration lists, the State is required to provide notice to applicants regarding the disposition of their application and "provide that the name of a registrant may not be removed from the official list of eligible voters" except "at the request of the registrant[,]" "as provided by state law," and by "a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists of eligible voters" because of death of a registrant or a change in the registrant's residence. Id. § 20507(a)(3)-(4).²

Section 8 further provides that "[a]ny state program or activity to protect the integrity of the electoral process by ensuring the maintenance of an accurate and current voter registration roll" "shall be uniform, nondiscriminatory, and in compliance with the Voting Rights Act of 1965[,]" and shall not remove "the name of any person...by reason of the person's failure to vote...."³ Id. § 20507(b). Subsections (c), (d), (e) and (f) provide a comprehensive process for considering removal based on change of address and where a registrant shall cast their vote. The process for removal of a voter must be completed "not later than 90 days prior to the date of a primary or general election for Federal office...." Id. § 20507(c)(2)(A). Subsection (g) of Section 8 details the process for advising election officials of Federal convictions.⁴

The final substantive provision of Section 8 is subsection (i), entitled "Public disclosure of voter registration activities." Subsection (i) provides:

(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 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.

Id. § 20507(i).⁵

Section 8(d) provides that States may not remove a registrant from the voter roll on the ground that he changed his address unless (1) the registrant confirms in writing that he has moved outside the registrar's jurisdiction or (2) the registrant (i) fails to respond to a specific notice about voting and address changes, and (ii) has not voted, or appeared to vote, during a defined time period. Id. § 20507(d)(1)-(2).

In

Section 11, titled "Civil Enforcement and Private Right of Action," the NVRA provides two coequal enforcement methods. Louisiana , 196 F.Supp.3d at 629, 2016 WL 4055648, at *8. First, Section 11 provides that the United States Attorney General "may bring a civil action in an appropriate district court for such declaratory or injunctive relief as is necessary to carry out this chapter." 52 U.S.C. § 20510(a). Second, Section 11 creates a private right of action:

(1) A person who is aggrieved by a violation of this chapter may provide written notice of the violation to the chief election official of the State involved.

(2) If the violation is not corrected within 90 days after receipt of a notice under paragraph (1)..., the aggrieved person may bring a civil action in an appropriate district court for declaratory or injunctive relief with respect to the violation.

Id. § 20510(b)(1)–(2).⁶

C. Facts

1. Parties

Plaintiff is a "national, non-partisan, non-profit organization" with a stated mission to "build an electorate that accurately represents the diversity of America's citizenry and to ensure that every eligible citizen can register, vote, and cast a ballot that counts." ( [12.1] at 2; Compl. [1] ¶ 20). Defendant is the Georgia Secretary of State, the chairperson of the Georgia State Election Board, and the State's chief election official. ( [12.1] at 4). He is responsible for maintaining Georgia's voter registration list, which, since 2013, has been stored on an interactive, computerized database known as ENET GVRS (the "Database"). (Compl. ¶ 21; [18] at 3 & n.2). Georgia uses the Database to meet its obligation, under Section 303(a) of the Help America Vote Act of 2002, to maintain "a single, uniform, official, centralized, interactive computerized statewide voter registration list...." 52 U.S.C. § 21083(a)(1)(A).

2. Georgia's Voter Registration Procedure

Voter registration in Georgia is conducted at the county level. ( [18] at 3). Voter registration applications are sent to county registrars. Registrars access the Database to update registration records for their respective counties. (Id. ; Second Decl. of S. Merritt Beaver [18.2] ("Second Beaver Decl.") ¶ 5). Defendant does not register voters or maintain copies of voter registration applications. (Second Beaver Decl. ¶ 3; August 19, 2016, Dep. of S. Merritt Beaver [34.1] ("Beaver Dep.") at 56:7-12).

When county registrars receive a paper voter registration application, they enter the applicant's information into the Database. ( [1.2] at 7; Beaver Dep. at 34:15-17, 36:20-22). The applicant's information is then electronically "batched" overnight and electronically sent to the Department of Driver Services ("DDS") for verification. (Beaver Dep. at 47:25-48:3, 72:12-16). If the applicant provides a Georgia...