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

673 F.Supp.3d 1004

PUBLIC INTEREST LEGAL FOUNDATION, INC., Plaintiff, v. Nancy DAHLSTROM, in her official capacity as Lieutenant Governor for the State of Alaska,¹ Defendant.

Case No. 1:22-cv-00001-SLG

United States District Court, D. Alaska

Signed May 17, 2023

Kaylan Hughes Lytle Phillips, Pro Hac Vice, Public Interest Legal Foundation, Alexandria, VA, Maureen Shawn Riordan, Pro Hac Vice, Noel Henry Johnson, Pro Hac Vice, Public Interest Legal Foundation, Indianapolis, IN, for Plaintiff.

Thomas Flynn, Department of Law, Anchorage, AK, for Defendant Kevin Meyer.

ORDER RE MOTION TO DISMISS

Sharon Gleason, UNITED STATES DISTRICT JUDGE

Before the Court at Docket 40 is defendant Nancy Dahlstrom's, in her official capacity as Lieutenant Governor for the State of Alaska (hereinafter "Lieutenant Governor"), Motion to Dismiss for Failure to State a Claim. Plaintiff Public Interest Legal Foundation, Inc. ("Foundation"), responded in opposition at Docket 44, to which the Lieutenant Governor replied at Docket 47. Oral argument was not requested and was not necessary to the Court's determination.

BACKGROUND²

This case involves a dispute over the extent to which the Alaska Division of Elections ("Division") must disclose data and records about deceased or potentially deceased registered voters pursuant to the disclosure provision of the National Voter Registration Act ("NVRA").³ The Foundation describes itself as a "non-partisan, 501(c)(3) public interest organization" that "regularly utilizes the NVRA's Public Disclosure Provision" to review government records and data in order to "promote[ ] the integrity of elections nationwide."⁴ The defendant is the Lieutenant Governor, who has been designated as Alaska's "chief State election official to be responsible for coordination of State responsibilities under [the NVRA]."⁵

Congress passed the NVRA in 1993 based on its findings that (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."⁶ Congress further stated that 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."⁷

Section 8 of the NVRA is entitled "Requirements with respect to administration of voter registration," and it directs the States to administer the voter registration lists to "ensure that any eligible applicant is registered to vote in an election."⁸ A registered voter "may not be removed from the official list of eligible voters" except "at the request of the registrant," "as provided by state law," or 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 "the death of the registrant" or "a change in the residence of the registrant."⁹ Section 8(i) is the primary subject of this case. It is entitled "Public disclosure of voter registration activities" and 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)¹⁰ 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.¹¹

In an effort to ensure the accuracy of its list of eligible voters in accordance with the requirements of Section 8 of the NVRA, the State of Alaska ("State") is one of 31 states and the District of Columbia that are members of the Electronic Registration Information Center ("ERIC").¹² According to the Foundation, ERIC describes itself as "a non-profit organization with the sole mission of assisting states to improve the accuracy of America's voter rolls and increase access to voter registration for all eligible citizens."¹³ All member states sign an agreement setting forth the terms and conditions of their ERIC membership.¹⁴ As it pertains to this case, ERIC uses the Social Security Death Master File to identify voters who have died and sends this information to the State; the State updates its voter rolls accordingly.¹⁵ This file contains "the name, social security account number, date of birth, and date of death of deceased individuals maintained by the Commissioner of Social Security."¹⁶ Federal law limits access to this information to certified entities.¹⁷ And pursuant to the ERIC membership agreement, the State may not disclose any data it receives from ERIC without first obtaining a court order.¹⁸

The events leading up to this case began on August 11, 2021, when the Foundation sent a letter to the Division requesting certain information about deceased voters.¹⁹ The Foundation requested (1) "All 'ERIC Data' received from ERIC during the years 2019, 2020, and 2021 concerning registered voters identified as deceased or potentially deceased"; and (2) "All reports and/or statewide-voter-registration-system-generated lists showing all registrants removed from the list of eligible voters for reason of death for the years 2019, 2020, and 2021. Such lists will optimally include unique voter identification numbers, county or locality, full names, addresses, and dates of birth."²⁰

On September 16, 2021, the Division provided the Foundation with some, but not all, of the requested information.²¹ The Division denied the first request for ERIC data concerning deceased and potentially deceased voters.²² The Division explained that the source of this data is the Social Security Master Death File and that federal law permits disclosure only to certified entities.²³ With respect to the second request, the Division provided "a list of deceased voters [the Division] removed from the voter registration list" during the requested timeframe.²⁴ The list included an ascension number for each voter, which the Division explains is an identification number that is unique to each voter but is not the same as the voter identification number.²⁵ The Division also did not provide the removed voters' dates of birth based on its assertion that "that information is confidential."²⁶

Four days later, on September 20, 2021, the Foundation sent the Division a Notice of NVRA Violation "for failure to permit inspection and reproduction of public records as required by the NVRA, 52 U.S.C. § 20507(i)(1)."²⁷ The Foundation stated that the Division had unlawfully denied its first request for ERIC data concerning deceased and potentially deceased voters.²⁸ And although the Division had granted the Foundation's second request in part by providing a "list of deceased voters [the Division] removed from the voter registration list between January 1, 2019 and August 11, 2021," the Division "did not include dates of birth in the list."²⁹ The Foundation informed the Division that the letter was intended to serve as statutory notice in accordance with the NVRA's pre-litigation notice requirement set forth in 52 U.S.C. § 20510(b)(1)-(2).³⁰ The Foundation's letter also presented an alternative solution to litigation, stating that it "believe[d] its request [could] be lawfully and amicably satisfied" if the Division provided the ERIC data with unique voter identification numbers, but redacted "SSN dates of birth, SSN dates of death, SSN death locations, and full/partial SSN numbers."³¹ Beyond a recitation of the Foundation's original requests, this alternative solution and an accompanying rationale contain the only specific references to unique voter identification numbers in the Foundation's September 20, 2021 notice.³²

Upon receipt of the Foundation's notice, the NVRA accorded the Lieutenant Governor 90 days to correct the alleged violation, a period that expired at the latest on January 2, 2022.³³ The Foundation did not receive a response.³⁴ On January 20, 2022, the Foundation filed its complaint with this Court. The Foundation seeks, among other things, a declaration from the Court that the Division violated the NVRA by "denying the Foundation the opportunity to inspect and copy the ERIC Deceased Data."³⁵ The Foundation also seeks a declaration that the Division violated the NVRA by "denying the Foundation the opportunity to inspect and copy deceased cancellation reports with voter identification numbers."³⁶ The complaint is not entirely clear with respect to the injunctive relief it seeks, requesting simply that the Court order the Division to "provide the requested records . . . [,] including voter list maintenance records received from ERIC," without specifying whether the Foundation is seeking birth dates, voter identification numbers, or both.³⁷

The Lieutenant Governor filed a Motion to Dismiss for Failure to State a Claim at Docket 40 that is now before the Court for determination.

LEGAL STANDARD

A party may seek dismissal under Federal Rule of Civil Procedure...