Pub. Interest Legal Found., Inc. v. Bellows

92 F.4th 36

PUBLIC INTEREST LEGAL FOUNDATION, INC., Plaintiff, Appellee, v. Shenna BELLOWS, in her official capacity as the Secretary of State for the State of Maine, Defendant, Appellant.

No. 23-1361

United States Court of Appeals, First Circuit

February 2, 2024

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. George Z. Singal, U.S. District Judge]

Jonathan R. Bolton, Assistant Attorney General, with whom Aaron M. Frey, Attorney General, and Thomas A. Knowlton, Deputy Attorney General, were on brief, for appellant.

Noel H. Johnson, with whom Kaylan L. Phillips and Public Interest Legal Foundation, Inc., were on brief, for appellee.

Kristen Clarke, Assistant Attorney General, Civil Rights Division, U.S. Department of Justice, Tovah R. Calderon, and Noah B. Bokat-Lindell, Attorneys, Civil Rights Division, were on brief for the United States of America, amicus curiae.

Caitriona Fitzgerald, John Davisson, Tom McBrien, and Suzanne Bernstein, were on brief for the Electronic Privacy Information Center, amicus curiae.

Michael Bekesha, and Eric W. Lee, were on brief for Judicial Watch, Inc., amicus curiae.

Before Gelpí, Montecalvo, and Rikelman, Circuit Judges.

GELPÍ, Circuit Judge.

This appeal presents two questions. The first is whether Section 8(i)(1) of the National Voter Registration Act ("NVRA"), which requires public disclosure of "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," 52 U.S.C. § 20507(i)(1), applies to Maine's Party/Campaign Use Voter File ("Voter File"). If so, the second question is whether Maine's restrictions on the use and publication of the Voter File are preempted by the NVRA. The United States District Court for the District of Maine answered both questions in the affirmative. We agree.

I. BACKGROUND

A. Statutory Background

In 1993, Congress enacted the NVRA, Pub. L. No. 103-31, 107 Stat. 77 (codified as amended at 52 U.S.C. §§ 20501-20511), to establish procedures that would "increase the number of eligible citizens who register to vote in elections for Federal office;" "enhance[ ] the participation of eligible citizens as voters in elections for Federal office;" "protect the integrity of the electoral process;" and "ensure that accurate and current voter registration rolls are maintained." 52 U.S.C. § 20501(b)(1)-(4). Section 8 of the NVRA prescribes requirements with respect to state administration of voter registration for federal elections. 52 U.S.C. § 20507. Section 8(i)(1), titled "Public disclosure of voter registration activities," 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.

52 U.S.C. § 20507(i)(1).

In 2002, Congress enacted the Help America Vote Act ("HAVA"), Pub. L. No. 107-252, 116 Stat. 1668 (codified as amended at 52 U.S.C. §§ 20901-1145). HAVA requires each state to maintain, "in a uniform and nondiscriminatory manner, a single, uniform, official, centralized, interactive computerized statewide voter registration list defined, maintained, and administered at the State level that contains the name and registration information of every legally registered voter in the State." 52 U.S.C. § 21083(a)(1)(A). Under HAVA, "[t]he computerized list shall serve as the single system for storing and managing the official list of registered voters throughout the State," shall "contain[ ] the name and registration information of every legally registered voter in the State," and "shall serve as the official voter registration list for the conduct of all elections for Federal office in the State." 52 U.S.C. § 21083(a)(1)(A)(i), (ii), (viii).

Pursuant to HAVA, Maine created the Central Voter Registration system ("CVR"), a statewide electronic system designed to standardize and centralize Maine voter registrations. The CVR is a "browser - based" system that consists of (1) a "software application for carrying out the voter registration functions required by federal and state law" and (2) a "relational database for storage of the voter registration information and related municipal data . . . entered through the application." The CVR's database contains personal information about every registered voter in Maine, including nearly all the information that a voter provides in his or her registration form, such as name, address, party affiliation, and date of birth, as well as other information inputted by municipal registrars, such as voter participation history.¹

Using the CVR's software application, Maine election officials can generate reports from the CVR's database. One of those reports is the Voter File, which captures the following information for each registered voter eligible to vote in Maine as of the date the Voter File is generated:

[T]he voter's name, residence address, mailing address, year of birth, enrollment status, electoral districts, voter status, date of registration, date of change of the voter record if applicable, voter participation history, voter record number and any special designations indicating uniformed service voters, overseas voters or township voters.

Me. Rev. Stat. Ann. tit. 21-A, § 196-A(1)(B).

The CVR became fully operational in 2007. In 2005, however, Maine enacted legislation to regulate public access to CVR data (hereinafter the "Privacy Law"). The Privacy Law provides that "information contained electronically in the [CVR] and any information or reports generated by the [CVR] are confidential and may be accessed only by municipal and state election officials for the purposes of election and voter registration administration." Me. Rev. Stat. Ann. tit. 21-A, § 196-A(1).

In 2019, at the outset of the events giving rise to this action, the Privacy Law contained only nine exceptions under which certain CVR data, including the Voter File, could be disclosed to specified entities for specified purposes. One of those exceptions, Exception B, allows "[a] political party, or an individual or organization engaged in so-called 'get out the vote' efforts directly related to a campaign or other activities directly related to a campaign," to purchase the Voter File "by making a request to the Secretary of State." Me. Rev. Stat. Ann. tit. 21-A, § 196-A(1)(B). Receivers of the Voter File under Exception B are prohibited from using it "for any purpose that is not directly related to activities of a political party, 'get out the vote' efforts directly related to a campaign or other activities directly related to a campaign." Me. Rev. Stat. Ann. tit. 21-A, § 196-A(1)(B)(1).

B. Relevant Facts

Plaintiff-Appellee Public Interest Legal Foundation, Inc. ("PILF") is a nonprofit organization that "seeks to promote the integrity of elections nationwide through research, education, remedial programs, and litigation." PILF's regular programmatic activities include evaluating whether states are complying with voter list maintenance laws; pursuing legal action to enforce state and federal voter list maintenance laws; educating the public through published reports, blog posts, press releases, newsletters, and emails; and providing voter list maintenance leads and potentially irregular registration data to state governments. Defendant-Appellant Shenna Bellows, the Maine Secretary of State (hereinafter the "Secretary"), "is the coordinator of [Maine's] responsibilities under the [NVRA]." Me. Rev. Stat. Ann. tit. 21-A, § 180.

On October 17, 2019, PILF sent a letter to the then - Maine Secretary of State requesting a copy of the Voter File pursuant to Section 8(i)(1) but acknowledging that, under Exception B of the Privacy Law, PILF was "prohibit[ed] from receiving the [Voter File] and using it for research, commentary, and other purposes." After further communication with PILF, Maine Deputy Secretary of State Julie L. Flynn denied PILF's request on February 5, 2020, concluding that she did not have authority under Exception B to provide PILF with a copy of the Voter File. To date, PILF has not been provided with a copy of the Voter File.

On February 19, 2020, PILF filed suit against the then - Maine Secretary of State in the United States District Court for the District of Maine alleging that the denial of access to the Voter File was a violation of Section 8(i)(1). The parties then filed cross-motions for summary judgment. However, in June 2021, while the cross - motions were pending, the Maine legislature amended the Privacy Law to add a new exception, Exception J. Under Exception J, "[a]n individual or organization that is evaluating the State's compliance with its voter list maintenance obligations may[ ] . . . purchase . . . the [Voter File] from the [CVR] by making a request to the Secretary of State." Me. Rev. Stat. Ann. tit. 21-A, § 196-A(1)(J). Exception J also limits the use and publication of the Voter File. Specifically, a person obtaining the Voter File under Exception J may not:

(1) Sell, transfer to another person or use the voter information or any part of the information for any purpose that is not directly related to evaluating the State's compliance with its voter list maintenance obligations [(hereinafter the "Use Ban")]; or (2) Cause the voter information or any part of the voter information that identifies, or that could be used with other information to identify, a specific voter, including but not limited to a voter's name, residence address or street address, to be made accessible by the general public on the Internet or through other means [(hereinafter the

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