Pub. Interest Legal Found. v. Boockvar

431 F.Supp.3d 553

The PUBLIC INTEREST LEGAL FOUNDATION , Plaintiff v. Kathy BOOCKVAR, Acting Secretary of the Commonwealth of Pennsylvania, Jonathan M. Marks, Deputy Secretary for Elections and Commissions, and the Bureau of Commissions, Elections and Legislation, Defendants

CIVIL ACTION NO. 1:19-CV-622

United States District Court, M.D. Pennsylvania.

Signed December 13, 2019

Noel H. Johnson, Pro Hac Vice, Public Interest Legal Foundation, J. Christian Adams, Indianapolis, IN, Linda Ann Kerns, Law Offices of Linda Ann Kerns, LLC, Philadelphia, PA, for Plaintiff.

Daniel T. Brier, Donna A. Walsh, Myers Brier & Kelly, LLP, Scranton, PA, for Defendants.

MEMORANDUM

Christopher C. Conner, Chief Judge

The Public Interest Legal Foundation ("PILF") seeks production of voter records under the National Voter Registration Act ("NVRA"), 52 U.S.C. § 20507. PILF claims that defendants have information documenting that noncitizens are registering to vote and voting in elections in the Commonwealth of Pennsylvania. According to PILF, the NVRA mandates disclosure of that information. Defendants move to dismiss PILF's complaint under Federal Rule of Civil Procedure 12(b)(6). We will grant in part and deny in part defendants' motion.

I. Factual Background & Procedural History

PILF is a public interest organization that "seeks to promote the integrity of elections nationwide." (Doc. 1 ¶ 5). Its stated mission is to ensure that voter rolls "are free from ineligible registrants, noncitizens, individuals who are no longer residents and individuals who are registered in more than one location." ( Id. )

Kathy Boockvar is the Secretary of the Commonwealth of Pennsylvania, and Jonathan M. Marks is the Commonwealth's Deputy Secretary for Elections and Commissions. (Id. ¶¶ 6-7). Deputy Secretary Marks heads the Commonwealth's Bureau of Commissions, Elections and Legislation, an arm of the Pennsylvania Department of State. (Id. ¶¶ 7-8). Together, defendants administer federal and state election laws in the Commonwealth. (Id. ¶¶ 5-8). PILF alleges that defendants are custodians of the records requested in the complaint. ( Id. ¶ 9).

A. PILF's Records Request

During a recent investigation into voter fraud, PILF discovered that noncitizens were registered to vote and were voting in the Commonwealth's elections. (Doc. ¶ 27). Records obtained by PILF also showed that dozens of noncitizens in Philadelphia had self-reported their noncitizen status to election officials and cancelled their registrations.¹ (Id. ¶¶ 29-30). According to PILF, roughly half of the self-reported noncitizens had cast a ballot in an election. ( Id. ¶ 31). PILF presented these findings to the State Government Committee of the Pennsylvania House of Representatives in October 2016. ( Id. ¶ 32).

In September 2017, Philadelphia City Commissioner Al Schmidt revealed that a "glitch" at the Pennsylvania Department of Motor Vehicles ("DMV") provided one explanation for this problem. ( Id. ¶ 33). In an article published by the Philadelphia Inquirer , Commissioner Schmidt explained that this glitch had allowed noncitizens to register to vote when they renewed their driver's licenses. ( Id. )

The Pennsylvania House State Government Committee held a hearing one month later to explore the issue of noncitizen registration and voting in the Commonwealth, including the DMV glitch. ( Id. ¶ 44). Deputy Secretary Marks testified at length as to the Department of State's investigation. (Id. ¶¶ 49-54). According to Marks, the Department of State had reviewed its voter-registration database and identified 1,160 instances of ineligible residents self-reporting and cancelling their inadvertent registrations. (Id. ¶¶ 50-51). The Department analyzed this initial data to determine if any of the self-reported ineligible registrants had voted (and if so, how many times) as well as how they had initially registered to vote. ( Id. ¶ 52).

The Department of State deepened its analysis after this initial review. At a hearing before the Pennsylvania Senate's State Government and Transportation Committees, then-Acting Secretary of the Department of State Robert Torres explained that the Department had begun "expert analysis" of the Commonwealth's voter-registration system and the driver-license database maintained by the Pennsylvania Department of Transportation ("PennDOT"). ( Id. ¶ 59). Commissioner Schmidt also testified at the joint hearing and summarized the Commonwealth's expert analysis. (Id. ¶¶ 60-68). Commissioner Schmidt testified that noncitizens who apply to PennDOT for a driver's license have their licenses tagged with an "INS Indicator." ( Id. ¶ 61). He further testified that all voter-registration applicants in the Commonwealth must register using either a driver's license or PennDOT ID. ( Id. ¶ 62). Commissioner Schmidt explained that a person's driver's license can thus be used to determine both citizenship (by the INS Indicator) and voter registration (by the driver's license number). ( Id. ¶ 63). According to Commissioner Schmidt, the Department of State's matching of these two identifiers revealed over 100,000 individuals who were registered to vote and tagged with an INS Indicator. (Id. ¶¶ 65-67).

On October 23, 2017, PILF sent a letter to the Department of State's Bureau of Commissions, Elections and Legislation requesting voter records. ( Id. ¶ 69). PILF asked to inspect:

1. Documents regarding all registrants who were identified as potentially not satisfying the citizenship requirements for registration from any official information source, including information obtained from the various agencies within the U.S. Department of Homeland Security and the Pennsylvania Department of Transportation since January 1, 2006. This request extends to all documents that provide the name of the registrant, the voting history of such registrant, the nature and content of any notice sent to the registrant, including the date of the notice, the response (if any) of the registrant, and actions taken regarding the registrant's registration (if any) and the date of the action.... This request includes all voter records that were referenced in recent news media reports regarding individuals improperly exposed to registration prompts due to a "glitch" in PennDOT's Motor Voter compliance system. At least one news report claims that "a Pennsylvania Department of State review is underway." I seek all voter records contained in this review.

2. All documents and records of communication received or maintained by your office from registered voters, legal counsel, claimed relatives, or other agents since January 1, 2006 requesting a removal or cancellation from the voter roll for any reason related to non-U.S. citizenship/ineligibility. Please include any official records indicating maintenance actions undertaken thereafter.

3. All documents and records of communication received or maintained by your office from jury selection officials—state and federal—since January 1, 2006 referencing individuals who claimed to be non-U.S. citizens when attempting to avoid serving a duty call. This request seeks copies of the official referrals and documents indicating where your office or local registrars matched a claim of noncitizenship to an existing registered voter and extends to the communications and maintenance actions taken as a result that were memorialized in any written form.

4. All communications regarding list maintenance activities relating to #1 through 3 above to appropriate local prosecutors, Pennsylvania Attorney General, Pennsylvania State Police, any other state law enforcement agencies, the United States Attorney's office, or the Federal Bureau of Investigation.

(Doc. 1-9 at 1-2). Defendants denied PILF's request. (Doc. 1 ¶¶ 74, 84, 89).

In April 2018, the Pennsylvania Department of State issued a statement outlining its efforts to identify and to remove noncitizens who were registered through the PennDOT system. ( Id. ¶ 103; see also Doc. 1-14). That statement described "an intense data analysis and process" and indicated that the Department had compiled a list of suspected noncitizen registrants requiring further review. (Doc. 1 ¶ 104; Doc. 1-14 at 1). The Department then sent a letter to 7,702 suspected noncitizen registrants. (Doc. 1 ¶ 104; Doc. 1-14 at 1; see also Doc. 1 ¶ 106). In June 2018, the Department of State mailed similar letters to 11,198 suspected noncitizen registrants requesting that they either confirm their eligibility or cancel their registration. (Doc. 1 ¶ 107).

B. Procedural History

PILF originally filed this lawsuit in 2018, asserting that defendants' denial of PILF's records request violated the NVRA. We held that PILF fell within the NVRA's "zone of interests" and had standing, but that it failed to comply with the statute's notice requirements. See Pub. Interest Legal Found. v. Boockvar, 370 F. Supp. 3d 449, 454-58 (M.D. Pa. 2019). PILF commenced this action after satisfying the NVRA's notice requirements. (Doc. 1 ¶¶ 117-25). Defendants filed a motion (Doc. 12) to dismiss, which is ripe for disposition.

II. Legal Standard

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of complaints that fail to state a claim upon which relief may be granted. FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002) ). In addition to reviewing the facts contained in the complaint, the court may also consider "matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Mayer v. Belichick, ...