For the past three years, Public Interest Legal Foundation (PILF) has been locked in a legal battle with the Maine Secretary of State’s office over access to and use of voter registration records.
Throughout the summer, high-profile amicus briefs have been filed with the First Circuit Court of Appeals in preparation for the court’s consideration of Public Interest Legal Foundation v. Bellows.
Among the amicus curiae — or “friends of the court” — are the Electronic Privacy Information Center, Judicial Watch, and the United States government.
Setting the Statutory Stage
In February of 2020, PILF filed a lawsuit against the Maine Secretary of State’s office — then occupied by Matthew Dunlap — seeking “declaratory and injunctive relief” for the office’s alleged violations of the “Public Disclosure Provision” contained within “Section 8 of the National Voter Registration Act of 1993” (NVRA).
The Public Disclosure Provision requires that: “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[.]”
Courts have stated previously that the Public Disclosure Provision “convey[s] Congress’s intention that the public should be monitoring the state of the voter rolls and the adequacy of election officials’ list maintenance programs.”
“Accordingly,” the court said, “election officials must provide full public access to all records related to their list maintenance activities, including their voter rolls.”
Despite this, the portion of Maine law governing access to voter registration information is such that only government officials or those engaged in “get out the vote efforts” are eligible to receive copies of these records.
Those who are allowed access to these records may only use them for purposes “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.”
Such restrictions appear to stand in direct contrast to the applicable federal statutes contained in the NVRA.
The Inciting Incident
In October of 2019, PILF emailed the Maine Secretary of State’s office requesting access to Maine’s statewide voter registration list. The letter acknowledges the fact that state law prohibited the fulfillment of their request but asserts that the NVRA — as a federal law — must be understood to preempt and supersede the state rules.
Consequently, PILF argued in their email that if the Secretary of State failed to provide the requested documentation, the office would be in violation of the federal NVRA.
Following this interaction, PILF furnished the Secretary of State’s office with multiple warnings and notices that legal action would be taken if access continued to be denied. In the final letter sent by PILF, the office was informed that legal action would be taken if the requested records were not provided by February 2, 2020.
On January 31, 2020, the Deputy Secretary of State reached out to PILF. In her correspondence, the Deputy Secretary of State repeated the Secretary of State’s earlier statement to PILF, articulating that the group’s request did not meet the requirements for access outlined in Maine state law and would therefore continue to be denied.
The Deputy Secretary of State also asked that PILF “describe, with greater specificity, what records (or data fields) you would like to inspect that you believe are within the scope of NVRA.”
In response, PILF reiterated their request, articulating that the documents to which they believed the NVRA entitled them were one and the same as those to which they were prohibited access by Maine law.
Shortly thereafter, the Deputy Secretary of State once again informed PILF that their request was denied.
An Overview of the Initial Lawsuit
Following their repeated denial of access to Maine’s voter rolls, PILF initiated legal proceedings against the Maine Secretary of State’s office, alleging that they were in violation of the federal NVRA.
In the first and only count against Maine’s Secretary of State’s office included in the original filing, PILF argues that Maine’s “disclosure and use” restrictions are “preempted, invalid, and unenforceable” in light of the requirements of the NVRA.
According to PILF, the Maine Secretary of State’s violation of the NVRA was “frustrating, impeding and harming the efforts of the Foundation to carry out its organizational mission.”
As a result of their lawsuit, PILF hoped to obtain both declaratory and injunctive relief.
In terms of declaratory relief, PILF requested that the courts not only declare the Maine Secretary of State to be in violation of the NVRA but also that the NVRA nullifies the state statutes preventing PILF from obtaining the records in question.
Regarding injunctive relief, PILF requested that the courts require the Maine Secretary of State’s office to produce the records in question and prevent the office from denying PILF access to similar records in the future.
The Situation Changes
On June 21, 2021, a bill was signed into law that amended the relevant statutes of Maine law allowing “an individual or organization that is evaluating the State’s compliance with its voter list maintenance obligations” to request a copy of the state’s voter registration information.
Under the new law, however, the use of these records remained restricted. The law states that recipients cannot sell or transfer the information provided to them for any purpose other than evaluating the State’s compliance with its obligations. The revised statute also prohibits recipients from using the records given to them in such a way that would comprise individual voters’ identifying information.
Violations of these statutes would result in a fine of $1,000 for the first offense and up to $5,000 for each additional offense. The law views violations with respect to each individual voter’s information, meaning that if information on five voters were shared or used in a manner contrary to the state’s law, that would be considered as five offenses.
Because PILF intended to use the voter registration information to “evaluate how and whether other states or local governments are complying with list maintenance obligations and other best practices” and to “enforce state and federal voter list maintenance law in Maine and/or in other states and local governments,” their records request would still be in violation of Maine state law.
Furthermore, PILF also expressed concerns over the new state law because it would prohibit them from sharing the data with other state and local governments — not only because it would violate the sharing provisions of the law, but also because other states’ public records law may make voters’ identifying information available in a manner that would violate Maine’s law.
Because PILF would be required to sign a form agreeing to these use conditions prior to obtaining access to the records in question, they argued that the Secretary of State was “functionally” denying them access to the records to which they believed themselves to be entitled under the federal NVRA.
In light of these changes to Maine state law, PILF introduced a second count against the Maine Secretary of State in their updated filing.
This count alleges that Maine state law stands in violation of the NVRA because the state statute imposes use restrictions while the NVRA does not.
PILF also introduced a third count against the Maine Secretary of State, alleging that the fines imposed by Maine’s updated statutes also violate the NVRA.
Therefore, in addition to the requests made in the original filing, PILF requested that the courts provide declaratory and injunctive relief specific to the additional claims made in the updated filing.
The Process Unfolds
In December of 2021, Maine Secretary of State Shanna Bellows (D) filed a motion to dismiss the claims made against her office, arguing that — in light of the legislative changes made earlier that year — “PILF is apparently unwilling to take ‘yes’ for an answer.”
“The NVRA contains no requirement that states permit unlimited and potentially abusive uses of voters’ private information,” the motion read. “In fact, such limitations actively further the NVRA’s stated purpose of encouraging voter participation.”
Because the statutory changes enacted in June of 2021 allowed PILF to access the requested information, Bellows asserted in her dismissal that PILF’s “original claim is moot and its new claims should be dismissed for failure to state a claim.”
In response, the court granted Bellow’s request for dismissal of Count I — which asserted that PILF was “functionally” denied access to the relevant records — but denied her request to dismiss Counts II and III.
In March of this year, the court found in favor of PILF, declaring that Maine’s statutes governing access to and use of voter registration records stand in violation of the federal NVRA. The court further confirmed that because the NVRA is a federal law, it supersedes and preempts any state laws that contradict it.
The court did not, however, grant PILF the permanent injunctive relief that it was seeking.
Shortly after this ruling was issued, Bellows filed a notice of appeal and requested that the court issue a stay pending the appeal that would prevent PILF from taking any action that would result in the disclosure of voters’ identifying personal information.
The court granted Bellow’s request on June 7.
What’s Happening Now
Throughout the summer, briefs have been filed with the First Circuit Court of Appeals in anticipation of their consideration of this case.
In addition to the briefs filed by PILF and the Maine Secretary of State’s office, amicus briefs have been filed by the Electronic Privacy Information Center (EPIC), Judicial Watch, and the United States government.
EPIC’s amicus brief favors the Secretary of State, while the briefs filed by Judicial Watch and the United States government offer support for PILF.
It still remains to be seen how the First Circuit Court of Appeals will rule on the matters under consideration in this case — both as they relate to PILF’s access to and usage of this data, as well as their bearing on the NVRA’s relationship to the relevant statutes of Maine state law more generally.
All court documents referenced in this article can be found at the hyperlinks below. To view a document, simply click on the title of interest, and a PDF document will begin loading.