Pub. Interest Legal Found. v. Nago

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PUBLIC INTEREST LEGAL FOUNDATION, INC., Plaintiff, v. SCOTT T. NAGO, IN HIS OFFICIAL CAPACITY AS THE CHIEF ELECTION OFFICER FOR THE STATE OF HAWAII; Defendant.

Civ. No. 23-00389 LEK-WRP

United States District Court, D. Hawaii

June 28, 2024

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS AND DENYING PLAINTIFF'S MOTION FOR DISCOVERY UNDER FEDERAL RULE OF CIVIL PROCEDURE 56(D)

LESLIE E. KOBAYASHI, UNITED STATES DISTRICT JUDGE

Before the Court are Defendant Scott T. Nago's, in his official capacity as the Chief Election Officer for the State of Hawai'i (“Defendant”), Motion to Dismiss Plaintiff's First Amended Complaint Filed September 22 2023, ECF NO. 20, or in the Alternative, Motion for Summary Judgment, filed November 28, 2023 (“Motion to Dismiss”), [dkt. no. 35,] and Plaintiff Public Interest Legal Foundation Inc.'s (“Plaintiff”) Motion for Discovery Under Federal Rule of Civil Procedure 56(d) filed January 26, 2024 (“Motion for Discovery”) [dkt. no. 41]. Plaintiff filed its memorandum in opposition to the Motion to Dismiss on January 26, 2024, and Defendant filed its reply on February 2, 2024. [Dkt. nos. 42, 44.] On February 2, 2024, Defendant filed its memorandum in opposition to the Motion for Discovery, and Plaintiff filed its reply to the Motion for Discovery on March 15, 2024. [Dkt. nos. 45, 49.] These matters came on for hearing on April 12, 2024 (“4/12 Hearing”). For the reasons set forth below, Defendant's Motion to Dismiss is hereby granted in part and denied in part insofar as Counts I, II, and III are dismissed without prejudice. Further, Plaintiff's Motion for Discovery is denied.

BACKGROUND

The operative pleading is Plaintiff's First Amended Complaint, filed on September 22, 2023 (“Amended Complaint”). [Dkt. no. 20.] The case concerns Plaintiff's request for voter data from Defendant - the Chief Election Officer of the State of Hawai'i (“CEO”) - pursuant to the public disclosure provision of the National Voter Registration Act (“NVRA”).

On April 6, 2023, Plaintiff's research director Logan Churchwell (“Churchwell”) emailed Defendant a letter requesting an opportunity to inspect or receive a copy of the complete voter registration system data in Hawai'i (“voter data”) containing all voter fields, citing 52 U.S.C. § 20507(i). [Amended Complaint, Exh. A (letter from Churchwell to Defendant, dated 4/6/23) (“April 6 Letter”).] On May 8, 2023, Defendant's office responded and directed Churchwell to contact the County Elections Division. Churchwell replied the same day, asking if the County Elections Division is the only office that maintains the records, or if Defendant's office also maintains a master copy. Defendant's office replied again on May 10, 2023, directing Churchwell to contact the County Election Division. [Id., Exh. B (emails between Churchwell and Defendant's office, dated from 4/6/23 to 5/10/23).]

On May 17, 2023, Churchwell wrote Defendant a letter stating Defendant's office's actions violated the NVRA. [Id., Exh. C (letter from Plaintiff to Defendant, dated 5/17/23) (“May 17 Letter”).] On June 28, 2023, Defendant's General Counsel, Aaron H. Schulaner (“Schulaner”) wrote Churchwell a letter disagreeing with Churchwell's legal interpretation of Defendant's obligations under the NVRA, and again referring Churchwell to the county clerks. [Id., Exh. D (letter from Schulaner to Plaintiff, dated 6/28/23).]

During the week of August 14, 2023, Plaintiff sent representatives to the County of Hawai'i, the County of Kaua'i, and the City and County of Honolulu to personally request a copy of each county's voter data.^[1] The counties allegedly denied the requests. [Amended Complaint at ¶ 26.] It is unclear what form these requests took. However, Schulaner states Plaintiff did not submit an “Affidavit on Application for Voter Registration Data” to any of the counties in conjunction with its requests for the voter file in relation to the visits to the counties during the week of August 14, 2023. [Motion to Dismiss, Declaration of Aaron H. Schulaner (“Schulaner Decl.”) at ¶ 8.] Plaintiff admits it did not submit any of these applications to the counties in its briefing and at the 4/12 Hearing. See Motion to Dismiss, Mem. in Opp. at 15 (stating Plaintiff cannot complete the request forms).

On August 22, 2023, Churchwell again responded to Defendant, stating Defendant cannot delegate its duties to county clerks, and that the Hawai'i Administrative Rules do not allow for Plaintiff's intended uses of the voter file data, and inquiring whether their intended uses fall within the “election or government purposes” under Hawai'i law. [Amended Complaint, Exh. E (letter from Churchwell to Defendant, dated 8/22/23) (“August 22 Letter”).] On September 1, 2023, Schulaner again referred Churchwell to the county clerks. [Id., Exh. F (letter from Schulaner to Churchwell, dated 9/1/23).] On September 7, 2023, Plaintiff delivered letters to Defendant and each of the county clerks alleging violations of the NVRA. [Schulaner Decl., Exh. 5 (letter dated 9/7/23 from Churchwell to Defendant and the Hawai'i County Clerk regarding NVRA violation); id., Exh. 6 (letter dated 9/7/23 from Churchwell to Defendant and the City and County of Honolulu Clerk regarding NVRA violation); id., Exh. 7 (letter dated 9/7/23 from Churchwell to Defendant and the Kaua'i County Clerk regarding NVRA violation) (collectively “September 7 Letters”).]

Plaintiff alleges: Hawaii's policy of delegating production of voter data to county clerks is preempted and constitutes a denial of access in violation of Section 8(i) of the NVRA, Title 52 United States Code Section 20507(i) (“Count I”); [id. at ¶¶ 27-35;] Hawai'i law requiring that a person requesting voter data have an election purpose is a functional denial of access in violation of Section 20507(i), and the purpose requirement in Hawai'i Administrative Rules Section 3-177-160(g) and related policies are preempted (“Count II”); [id. at ¶¶ 36-43;] Hawai'i law requiring that a person requesting voter data have an election purpose is an unlawful use restrictions in violation of Section 20507(i), making Hawai'i Revised Statutes Sections 11-11, 11-14, 11-17, 11-97 and Hawai'i Administrative Rules Section 3-177-160 preempted (“Count III”); [id. at ¶¶ 44-63]. Plaintiff requests: a declaration that Defendant violated Section 8(i) of the NVRA; [id. at pg. 17;] a declaration that Section 8(i) of the NVRA preempts “HRS sections 11-11, 11-14, 11-17, 11-97 and HAR section 3-177-160, and any other Hawaii statute, regulation, practice or policy that prevents [Plaintiff] from inspecting and copying the requested records or that places restrictions on the use of Hawaii's VRS [voter registration system] data or other data”; [id.;] an order directing Defendant to produce the voter data described in “HRS sections 11-11, 11-14, 11-17, 11-97 and HAR section 3-177-160”; [id.;] a permanent injunction enjoining Defendant from denying requests to inspect similar voter data in the future; attorney's fees; and any other appropriate relief, [id. at pg. 18].

Defendant's Motion to Dismiss asks the Court to dismiss the Amended Complaint with prejudice pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 12(b)(7) because: (1) Plaintiff lacks standing; (2) the Amended Complaint fails to state a claim for relief under the NVRA or the Help American Vote Act of 2002 (“HAVA”), Title 52 United States Code Sections 20901-21145; and (3) Plaintiff failed to join the county clerks, who are indispensable parties. [Motion to Dismiss, Mem. in Supp. at 2, 11-21.] Alternatively, Defendant asks the Court to treat the Motion to Dismiss as a motion for summary judgment. [Id. at 2.]

STANDARD

I. Federal Rule of Civil Procedure 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) authorizes a defendant to move for dismissal of an action for “lack of subject-matter jurisdiction[.]” “Once challenged, the party asserting subject matter jurisdiction has the burden of proving its existence.” Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009) (citation and quotation marks omitted). This district court has stated:

FRCP 12(b)(1) also requires a district court to dismiss a complaint for lack of subject matter jurisdiction where a plaintiff lacks standing to sue. See Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011) (citations omitted) (“[L]ack of Article III standing requires dismissal for lack of subject matter jurisdiction under [FRCP] 12(b)(1).”). When a plaintiff lacks constitutional standing, a suit “is not a ‘case or controversy,' and an Article III federal court therefore lacks subject matter jurisdiction over the suit.” City of Oakland v. Lynch, 798 F.3d 1159, 1163 (9th Cir. 2015) (quoting Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004) (quotations omitted)); City of Los Angeles v. County of Kern, 581 F.3d 841, 845 (9th Cir. 2009).

In determining constitutional standing, the trial court has the authority “to allow or to require the plaintiff to supply, by amendment to the complaint or by affidavits, further particularized allegations of fact deemed supportive of plaintiff's standing.” Maya, 658 F.3d at 1067 (citation and quotations omitted). “For purposes of ruling on a motion to dismiss for want of standing, both trial and reviewing courts must accept as true all material allegations of the complaint and must construe the complaint in favor of the complaining party.” Namisnak v. Uber Techs., Inc., 971 F.3d 1088, 1092 (9th Cir. 2020) (internal quotations omitted) (citations omitted).

Ye Jiang v. Zhong Fang, CIVIL NO. 20-00100 JAO-KJM, 2020 WL 6889169, at *1 (D. Hawai'i Nov. 23, 2020) (alterations in Ye Jiang).

“A Rule 12(b)(1) jurisdictional attack may be facial...