Oral arguments took place this morning before Boston’s First Circuit Court of Appeals in the case against the Maine Secretary of State’s Office regarding the use and dissemination of the state’s voter rolls.
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 as a result of the organization’s quest to access and freely make use of Maine’s voter rolls.
“This case implicates significant issues of press freedom, the First Amendment, and clean elections. At issue is Maine’s penalties for speaking about public records,” PILF wrote in a statement concerning today’s oral arguments.
“The public has a right to inspect election records and discuss any errors they find. Maine has given the government power to silence individuals from speaking and criticizing election officials for not doing a good job,” PILF President — J. Christian Adams — told the Maine Wire.
“This case is an important step to stop the growing trend of states trying to dictate how concerned citizens may research voter rolls,” Adams said.
The Maine Secretary of State’s Office also issued a statement in advance of today’s oral arguments.
“Voter privacy is foundational to the freedom to vote in accordance with your beliefs, free of interference,” Maine Secretary of State Shenna Bellows (D) said in the press release.
“Maine has long enjoyed the distinction of leading the nation in voter turnout, and we are proud of our longstanding commitment to voter freedom and privacy. Unfortunately, this lawsuit could change all that,” Bellows said.
“Mainers should be able to register to vote without fear that someone will post their sensitive personal information online,” said Bellows. “In this era of identity theft and online harassment, protecting individual sensitive information is more important than ever.”
“Once your personal information is published online, it’s often too late to prevent harm to individual reputation and safety,” Bellows said.
Background on the Lawsuit
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 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.”
The incident that ultimately resulted in the years-long lawsuit took place in October of 2019 when PILF emailed the Maine Secretary of State’s office requesting access to Maine’s statewide voter registration list.
The letter sent by the organization 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 that should the Secretary of State fail to provide the requested information, the office would be in violation of the NVRA.
Over the next several weeks, 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.
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.
As a result of their lawsuit, PILF hoped to obtain both declaratory and injunctive relief.
Midway through their battle in the courtroom, Maine’s statutory landscape shifted.
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.
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.
Consequently, PILF updated their lawsuit and continued their legal fight against the Maine Secretary of State’s Office.
In December of 2021, Bellows 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 courts granted the motion to dismiss for one of the counts filed against Bellows, but allowed litigation to proceed on the subsequent counts.
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.
Oral Arguments at the First Circuit Court of Appeals
After a number of high-profile amicus briefs were filed — including by the Electronic Privacy Information Center in favor of the Secretary of State, and by Judicial Watch and the United States government in support of PILF — the case has now come before the First Circuit Court of Appeals in Boston.
During this morning’s oral arguments, one of Maine’s Assistant Attorneys General — arguing on behalf of the Secretary of State — suggested that the provision of state law that is under consideration in this case “is not meant to prohibit” any of the activities that PILF has indicated a desire to do.
“The only question properly before the court is whether the plaintiff has a right to make available to the general public through the internet or by other means personally identifying information about individual Maine voters contained in the voter file,” the Assistant Attorney General said.
The appellant then argued that the Secretary of State is “not going to enforce the use restrictions in the way that the plaintiff claims to fear that we’re going to.”
One of the judges hearing the case interrupted at this point to ask the attorney about the “non-binding” nature of this interpretation.
In response, the Assistant Attorney General argued that from a “common sense practical point of view,” PILF’s suggestion that the State would allow them to analyze and publish data in a report focusing on Maine but not in a report focusing primarily on another state doesn’t make “smart common sense.”
The attorney then admitted that the statute under consideration “could have been worded better” to more effectively express its intended purpose.
One of the presiding judges then stated that “generally we’re supposed to assume that the legislature means what it says.”
“I appreciate your argument that it wouldn’t be practical for you to do what is being alleged,” the judge said, “but that’s not what we’re really deciding. We’re looking at what the statute would permit someone to do.”
“My understanding of the law is that when you have a recent statute like we do here — especially that’s been amended, and it has substantial fines — that just statements by state officials that they’re not going to enforce it is not enough to eliminate standing.”
The attorney representing PILF — Noel Johnson — argued before the court that “Congress believed that accurate voter rolls were so vital to the proper functioning of a democracy that it made all records subject to public disclosure when it comes to voter list maintenance and registration.”
“Maine is thwarting Congress’ objectives, and punishing and silencing its critics,” Johnson stated.
When asked about the State’s argument that enforcement would not, in reality, occur in the way that PILF is suggesting, Johnson said that “this is not a complex statute.”
“There’s no uncertainty. There’s no ambiguity. The Maine Legislature drafted with precision. It chose its words carefully. It said the state. There’s only one state that matters here — It’s Maine,” Johnson said. “And when it comes to enforcement, council mentioned that it is common sense to assume they would not enforce a statute that they’ve promised not to enforce. I think it’s common sense to read the statute to mean what it says.”
The attorney further pointed out that the State has shifted in its interpretation of this language throughout the course of litigation, lending further credence to PILF’s concerns that their word regarding interpretation is not iron clad.
In answering a judge’s question concerning the possibility of exposure of voters’ private information, Johnson responded that “Congress considered and decided that issue when it wrote in the statute that all records related to list maintenance are public.”
With regards to malicious uses of voter data — including voter intimidation — PILF’s attorney argued that it “comes down to what is the purpose of the action.”
Johnson then suggested that the State has an obligation to provide information when requested for a non-malicious purpose and then pursue enforcement of voter intimidation laws after the fact if necessary.
According to their attorney, PILF is “not challenging their ability to prohibit voter intimidation” by challenging the legality of the statute.
A representative of the United States government also appeared today to speak as a “friend of the court” or amicus. During his remarks, the attorney provided some technical interpretation of the relevant federal statutes.
The government representative also offered some remarks concerning the potential of redacting portions of the record, suggesting that full birth dates may be eligible for redaction, as well as certain pieces of information for specific categories of individuals when noted elsewhere in federal law or as determined by state courts.
It is not yet clear how — and when — the First Circuit Court of Appeals will issue a ruling on the case.