Filed: Jun. 15, 2012
Latest Update: Mar. 26, 2017
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT PROJECT VOTE / VOTING FOR AMERICA, INCORPORATED, Plaintiff-Appellee, v. ELISA LONG, in her official capacity as General Registrar of Norfolk, Virginia; DONALD PALMER, in his official capacity as Secretary, State Board of Elections, Defendants-Appellants. No. 11-1809 UNITED STATES OF AMERICA; THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS; AMERICAN SOCIETY OF NEWS EDITORS; THE ASSOCIATED PRESS; ASSOCIATION OF CAPITOL REPORTERS
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT PROJECT VOTE / VOTING FOR AMERICA, INCORPORATED, Plaintiff-Appellee, v. ELISA LONG, in her official capacity as General Registrar of Norfolk, Virginia; DONALD PALMER, in his official capacity as Secretary, State Board of Elections, Defendants-Appellants. No. 11-1809 UNITED STATES OF AMERICA; THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS; AMERICAN SOCIETY OF NEWS EDITORS; THE ASSOCIATED PRESS; ASSOCIATION OF CAPITOL REPORTERS A..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PROJECT VOTE / VOTING FOR
AMERICA, INCORPORATED,
Plaintiff-Appellee,
v.
ELISA LONG, in her official
capacity as General Registrar of
Norfolk, Virginia; DONALD
PALMER, in his official capacity as
Secretary, State Board of
Elections,
Defendants-Appellants.
No. 11-1809
UNITED STATES OF AMERICA; THE
REPORTERS COMMITTEE FOR
FREEDOM OF THE PRESS; AMERICAN
SOCIETY OF NEWS EDITORS; THE
ASSOCIATED PRESS; ASSOCIATION OF
CAPITOL REPORTERS AND EDITORS;
ATLANTIC MEDIA INC.; CITIZEN
MEDIA LAW PROJECT; LIN MEDIA;
THE NATIONAL PRESS CLUB;
NATIONAL PRESS PHOTOGRAPHERS
ASSOCIATION; NEWSPAPER
ASSOCIATION OF AMERICA;
2 PROJECT VOTE v. LONG
NORTH JERSEY MEDIA GROUP,
INCORPORATED; RADIO TELEVISION
DIGITAL NEWS ASSOCIATION; THE
SEATTLE TIMES COMPANY;
SOCIETY OF PROFESSIONAL
JOURNALISTS; STUDENT PRESS LAW
CENTER; USA TODAY; VIRGINIA
COALITION FOR OPEN GOVERNMENT,
Amici Supporting Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca Beach Smith, District Judge.
(2:10-cv-00075-RBS-DEM)
Argued: May 17, 2012
Decided: June 15, 2012
Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.
Affirmed and remanded by published opinion. Judge Wilkin-
son wrote the opinion, in which Judge Diaz and Judge Floyd
joined.
COUNSEL
ARGUED: Earle Duncan Getchell, Jr., OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Vir-
ginia, for Appellants. Ryan Morland Malone, ROPES &
GRAY, LLP, Washington, D.C., for Appellee. Erin H. Flynn,
UNITED STATES DEPARTMENT OF JUSTICE, Washing-
PROJECT VOTE v. LONG 3
ton, D.C., for Amici Supporting Appellee. ON BRIEF: Ken-
neth T. Cuccinelli, II, Attorney General of Virginia, Charles
E. James, Jr., Chief Deputy Attorney General, Wesley G.
Russell, Jr., Deputy Attorney General, Stephen M. Hall,
Assistant Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA, Richmond, Virginia; Jeff W.
Rosen, Lisa Ehrich, PENDER & COWARD, PC, Virginia
Beach, Virginia, for Appellants. Douglas Hallward-
Driemeier, Augustine M. Ripa, ROPES & GRAY, LLP,
Washington, D.C., for Appellee. Thomas E. Perez, Assistant
Attorney General, Diana K. Flynn, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for the
United States, Amicus Supporting Appellee. Lucy A. Dal-
glish, Mark R. Caramanica, You-Jin J. Han, THE REPORT-
ERS COMMITTEE FOR FREEDOM OF THE PRESS,
Arlington, Virginia; Kevin M. Goldberg, FLETCHER,
HEALD & HILDRETH, PLC, Arlington, Virginia, for Amer-
ican Society of News Editors and Association of Capitol
Reporters and Editors; Karen Kaiser, Associate General
Counsel, THE ASSOCIATED PRESS, New York, New
York; Bruce L. Gottlieb, General Counsel, ATLANTIC
MEDIA, INC., Washington, D.C.; Jeffrey P. Hermes, CITI-
ZEN MEDIA LAW PROJECT, Berkman Center For Internet
& Society, Cambridge, Massachusetts; Joshua N. Pila, Regu-
latory Counsel, LIN MEDIA, Providence, Rhode Island;
Charles D. Tobin, HOLLAND & KNIGHT LLP, Washington,
D.C., for the National Press Club; Mickey H. Osterreicher,
East Amherst, New York, for the National Press Photogra-
phers Association; Rene P. Milam, Vice President/General
Counsel, NEWSPAPER ASSOCIATION OF AMERICA,
Arlington, Virginia; Jennifer Borg, General Counsel, NORTH
JERSEY MEDIA GROUP INC., Hackensack, New Jersey;
Kathleen A. Kirby, WILEY REIN LLP, Washington, D.C.,
for the Radio Television Digital News Association; Bruce E.
H. Johnson, DAVIS WRIGHT TREMAINE LLP, Seattle,
Washington, for The Seattle Times Company; Bruce W. San-
ford, Bruce D. Brown, Laurie A. Babinski, BAKER
4 PROJECT VOTE v. LONG
HOSTETLER LLP, Washington, D.C., for the Society of Pro-
fessional Journalists; Frank D. LoMonte, STUDENT PRESS
LAW CENTER, Arlington, Virginia; Barbara W. Wall, Vice
President, Senior Associate General Counsel, GANNETT
CO., INC., McLean, Virginia, for USA Today; Megan Rhyne,
VIRGINIA COALITION FOR OPEN GOVERNMENT, Wil-
liamsburg, Virginia, Amici Supporting Appellee.
OPINION
WILKINSON, Circuit Judge:
The question here is whether Section 8(i)(1) of the National
Voter Registration Act ("NVRA"), which requires public dis-
closure of "all records concerning the implementation of pro-
grams and activities conducted for the purpose of ensuring the
accuracy and currency of official lists of eligible voters," 42
U.S.C. § 1973gg-6(i)(1), applies to completed voter registra-
tion applications. The district court concluded that Section
8(i)(1) does apply to such applications and held that
defendants—Virginia election officials—had violated the
NVRA by refusing to disclose the completed applications
with voters’ Social Security numbers redacted. Because the
district court correctly interpreted Section 8(i)(1), we now
affirm the judgment.
I.
Plaintiff Project Vote/Voting for America, Inc. ("Project
Vote") is a nonprofit organization seeking to increase voter
registration among young, low-income, and minority voters.
This suit arose after Project Vote learned that students at Nor-
folk State University, a historically African-American college,
experienced problems in registering to vote in the November
2008 primary and general elections in Virginia. In particular,
Project Vote worried that the students’ registration applica-
PROJECT VOTE v. LONG 5
tions had been erroneously rejected by the Norfolk General
Registrar, defendant Elisa Long, who is responsible for pro-
cessing voter registration applications.
On May 11, 2009, a Project Vote affiliate—Advancement
Project—requested that Registrar Long "make available for
inspection and copying the completed voter registration appli-
cations of any individual who timely submitted an application
at any time from January 1, 2008, through October 31, 2008,
who was not registered to vote in time for the November 4,
2008 general election," as well as "documents identifying the
reasons the applications were rejected." The request was made
pursuant to NVRA Section 8(i)(1), which provides:
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 par-
ticular voter is registered.
42 U.S.C. § 1973gg-6(i)(1). Registrar Long responded to the
request on May 13, 2009, indicating that she would not allow
inspection or copying of the requested materials. Martha Bris-
sette, an attorney and policy analyst with the Virginia State
Board of Elections ("VSBE"), then emailed Advancement
Project in support of Long’s refusal.
On May 15, 2009, representatives from Project Vote and
Advancement Project visited Registrar Long’s office in per-
son and repeated their request, which was again refused.
Accordingly, the organizations wrote to the Secretary of the
VSBE, giving notice that Registrar Long was allegedly violat-
ing NVRA Section 8(i)(1) and requesting remedial measures.
6 PROJECT VOTE v. LONG
On September 25, 2009, VSBE forwarded to Project Vote and
Advancement Project an informal opinion of the Attorney
General of Virginia. The opinion concluded that "the com-
pleted voter registration application of any individual is not a
part of the record of the implementation of programs and
activities conducted for the purposes of ensuring the accuracy
and currency of official lists of eligible voters covered by [the
Public Disclosure Provision]." To date, defendants have not
disclosed the requested records.
Project Vote filed a complaint against Registrar Long and
the Secretary of the VSBE on February 16, 2010, alleging
violations of Section 8(i)(1) and asking the court to require
disclosure of the requested materials. Defendants moved to
dismiss the complaint, asserting that Project Vote lacked
standing to sue under the NVRA and that Section 8(i)(1) does
not mandate public access to completed voter registration
applications. The district court denied defendants’ motion on
October 29, 2010. The court concluded that plaintiff had
standing and that "the common and ordinary meaning of the
terms of [Section 8(i)(1)] encompass voter registration appli-
cations, as these records concern ‘the implementation of pro-
grams and activities conducted for the purpose of ensuring the
accuracy and currency of official lists of eligible voters.’"
Project Vote/Voting for America, Inc. v. Long, 752 F. Supp.
2d 697, 708 (E.D. Va. 2010) (quoting 42 U.S.C. § 1973gg-
6(i)(1)).
Project Vote then moved for summary judgment. Defen-
dants opposed the motion, reasserting their original arguments
and also claiming that the district court’s interpretation of the
NVRA was incompatible with two other federal statutes, the
Help America Vote Act ("HAVA"), 42 U.S.C. § 15301 et
seq., and the Military and Overseas Voter Empowerment
("MOVE") Act, 42 U.S.C. § 1973ff et seq.On July 20, 2011,
the district court entered final judgment in favor of Project
Vote. Rejecting defendants’ arguments based on HAVA and
the MOVE Act, the court concluded that NVRA Section
PROJECT VOTE v. LONG 7
8(i)(1) "grants the plaintiff access to completed voter registra-
tion applications with the voters’ [Social Security numbers]
redacted for inspection and photocopying." Project
Vote/Voting for America, Inc. v. Long, 813 F. Supp. 2d 738,
743 (E.D. Va. 2011). The court subsequently stayed its judg-
ment pending this appeal. See J.A. 449-52.
II.
The NVRA reflects the view of Congress that the right to
vote "is a fundamental right," that government has a duty to
"promote the exercise of that right," and that discriminatory
and unfair registration laws can have a "damaging effect on
voter participation" and "disproportionately harm voter partic-
ipation by various groups, including racial minorities." 42
U.S.C. § 1973gg(a). Congress enacted the NVRA in order to
"increase the number of eligible citizens who register to vote"
in federal elections, "enhance[ ] the participation of eligible
citizens as voters," "protect the integrity of the electoral pro-
cess," and "ensure that accurate and current voter registration
rolls are maintained." Id. § 1973gg(b).
The NVRA directs states to establish at least three methods
of voter registration for federal elections: "(1) by application
made simultaneously with an application for a motor vehicle
driver’s license," "(2) by mail application" using a federally
prescribed form, and "(3) by application in person" at desig-
nated voter registration agencies. Id. § 1973gg-2(a). It further
requires that states conduct a general program to remove inel-
igible voters from official voter lists without engaging in
improper voter removal. Id. § 1973gg-6(a)(3)-(4).
Finally, as explained above, Section 8(i)(1) of the NVRA
mandates public disclosure of voter registration activities. Id.
§ 1973gg-6(i)(1). It generally requires states to "make avail-
able for public inspection and, where available, photocopying
at a reasonable cost, all records concerning the implementa-
tion of programs and activities conducted for the purpose of
8 PROJECT VOTE v. LONG
ensuring the accuracy and currency of official lists of eligible
voters." Id. This language embodies Congress’s conviction
that Americans who are eligible under law to vote have every
right to exercise their franchise, a right that must not be sacri-
ficed to administrative chicanery, oversights, or inefficiencies.
Under the district court’s interpretation, this provision man-
dates disclosure of the records requested by Project Vote.
III.
A.
We begin by considering the Commonwealth’s argument
that the text of Section 8(i)(1) does not require public disclo-
sure of completed voter registration applications. This issue of
statutory interpretation is one that we review de novo. United
States v. Ide, 624 F.3d 666, 668 (4th Cir. 2010). The starting
point for any issue of statutory interpretation is of course the
language of the statute itself. United States v. Bly,
510 F.3d
453, 460 (4th Cir. 2007). "[W]hen the words of a statute are
unambiguous, . . . this first canon is also the last [and] judicial
inquiry is complete." Willenbring v. United States,
559 F.3d
225, 235 (4th Cir. 2009) (internal quotation marks omitted).
Appellants assert that "[t]he plain and ordinary meaning of
[Section 8(i)(1)] does not encompass voter applications, much
less the rejected applications initially sought." Appellants’ Br.
at 10. Instead, they claim, the "‘programs and activities’
referred to in Section 8(i)(1) of the NVRA are programs and
activities related to the purging of voters from the list of regis-
tered voters." Id. at 11.
Contrary to appellants’ insistence, the plain language of
Section 8(i)(1) does not allow us to treat its disclosure
requirement as limited to voter removal records. As the dis-
trict court concluded, completed voter registration applica-
tions are clearly "records concerning the implementation of
programs and activities conducted for the purpose of ensuring
PROJECT VOTE v. LONG 9
the accuracy and currency of official lists of eligible voters."
42 U.S.C. § 1973gg-6(i)(1).
First, the process of reviewing voter registration applica-
tions is a "program" and "activity." Under Virginia law, elec-
tion officials must examine completed voter registration
applications and register applicants that possess the necessary
qualifications. See Va. Code § 24.2-417. This process of
review is a "program" because it is carried out in the service
of a specified end—maintenance of voter rolls—and it is an
"activity" because it is a particular task and deed of Virginia
election employees.
Moreover, the "program" and "activity" of evaluating voter
registration applications is plainly "conducted for the purpose
of ensuring the accuracy and currency of official lists of eligi-
ble voters." 42 U.S.C. § 1973gg-6(i)(1). It is unclear what
other purpose it would serve. As the district court reasoned,
the process of reviewing voter registration applications keeps
official voter lists both "accurate"—free from error—and
"current"—most recent. See Project Vote, 752 F. Supp. 2d at
706. Indeed, voter lists are not "accurate" or "current" if eligi-
ble voters have been improperly denied registration or if ineli-
gible persons have been added to the rolls. Id. By registering
eligible applicants and rejecting ineligible applicants, state
officials "ensure that the state is keeping a ‘most recent’ and
errorless account of which persons are qualified or entitled to
vote within the state." Id. Accordingly, the process of assess-
ing voter registration applications is a "program[ ] and
activit[y] conducted for the purpose of ensuring the accuracy
and currency of official lists of eligible voters." 42 U.S.C.
§ 1973gg-6(i)(1).
Furthermore, the registration applications requested by
Project Vote are clearly "records concerning the implementa-
tion of" this "program[ ] and activit[y]." Id. The requested
applications are relevant to carrying out voter registration
activities because they are "the means by which an individual
10 PROJECT VOTE v. LONG
provides the information necessary for the Commonwealth to
determine his eligibility to vote." Project Vote,
752 F. Supp.
2d at 707. Without verification of an applicant’s citizenship,
age, and other necessary information provided by registration
applications, state officials would be unable to determine
whether that applicant meets the statutory requirements for
inclusion in official voting lists. Thus, completed applications
not only "concern[ ] the implementation of" the voter registra-
tion process, but are also integral to its execution.
Finally, "the fact that [Section 8(i)(1)] very clearly requires
that ‘all records’ be disclosed brings voter registration appli-
cations within its reach." Id. at 707-08 (emphasis added). As
this court has recognized, "the use of the word ‘all’ [as a mod-
ifier] suggests an expansive meaning because ‘all’ is a term
of great breadth." Nat’l Coal. for Students with Disabilities
Educ. & Legal Def. Fund v. Allen,
152 F.3d 283, 290 (4th Cir.
1998). Given that the phrase "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" unmistakably encompasses completed
voter registration applications, such applications fall within
Section 8(i)(1)’s general disclosure mandate.
B.
Although Section 8(i)(1) generally requires disclosure of
applicable records, it creates exceptions "to the extent that
such records relate [(1)] to a declination to register to vote or
[(2)] to the identity of a voter registration agency through
which any particular voter is registered." 42 U.S.C. § 1973gg-
6(i)(1). The completed voter registration applications at issue
here do not fall within either of these two exceptions. First,
such applications represent attempts to become a registered
voter, not "declination[s] to register to vote." Moreover, Vir-
ginia’s voter registration application form does not contain
any information related to "the identity of a voter registration
agency through which any particular voter is registered." See
PROJECT VOTE v. LONG 11
J.A. 66. Because the requested applications do not fall within
either of these two exceptions—and because they are covered
by Section 8(i)(1)’s general mandate—they must be made
"available for public inspection and . . . photocopying." 42
U.S.C. § 1973gg-6(i)(1).
C.
Appellants next argue that NVRA Section 8(i)(2)—which
immediately follows Section 8(i)(1)—limits the records sub-
ject to public disclosure. Section 8(i)(2) provides:
The records maintained pursuant to [Section 8(i)(1)]
shall include lists of the names and addresses of all
persons to whom notices described in subsection
(d)(2) of this section are sent, and information con-
cerning whether or not each such person has
responded to the notice as of the date that inspection
of the records is made.
Id. § 1973gg-6(i)(2) (emphasis added). According to appel-
lants, the term "shall include" in Section 8(i)(2) "acts as a lim-
itation, not an enlargement." Appellants’ Br. at 16. Appellants
assert that "[t]he records specifically identified by Congress in
Section 8(i)(2) are those which should be disclosed under
Section 8(i)(1)," and that "[b]ecause voter registration appli-
cations are not such records, they are not subject to [public
disclosure]." Id.
Appellants’ interpretation, under which only the documents
described in Section 8(i)(2) must be disclosed, is incorrect for
several reasons. First, the statute clearly states that "all
records" falling under Section 8(i)(1) must be publicly dis-
closed, not just those explicitly listed in Section 8(i)(2). 42
U.S.C. § 1973gg-6(i)(1) (emphasis added). Moreover, as the
district court recognized at the motion to dismiss hearing, the
term "shall include" sets "a floor, not a ceiling." J.A. 223.
Courts have repeatedly indicated that "shall include" is not
12 PROJECT VOTE v. LONG
equivalent to "limited to." See, e.g., Nat’l Fed’n of the Blind
v. FTC, 420 F.3d 331, 338 (4th Cir. 2005) (stating that the
language "shall include" is "not exhaustive," and merely indi-
cates that the listed items, "among others," are covered by the
relevant provision); see also Samantar v. Yousuf,
130 S. Ct.
2278, 2287 (2010); P.C. Pfeiffer Co. v. Ford,
444 U.S. 69, 77
n.7 (1979). Because Section 8(i)(2) merely describes a spe-
cific set of records that must be maintained—and not an
exclusive list—it does not shield completed voter registration
applications from Section 8(i)(1)’s public disclosure mandate.
D.
In sum, the NVRA’s disclosure requirement is not limited
to voter removal records. The NVRA, including Section
8(i)(1), concerns voter registration, not simply voter removal.
Notably, the statute is entitled the "National Voter Registra-
tion Act," 42 U.S.C. § 1973gg note (emphasis added), and is
codified under a subchapter designated "National Voter Reg-
istration," id. § 1973gg et seq. (emphasis added). Moreover,
Section 8(i)(1) is located in a section titled "Requirements
with respect to administration of voter registration," id.
§ 1973gg-6 (emphasis added), and a subsection titled "Public
disclosure of voter registration activities," id. § 1973-gg(6)(i)
(emphasis added). These statutory labels reinforce the conclu-
sion that Section 8(i)(1) governs voter registration records.
See INS v. Nat’l Ctr. for Immigrants’ Rights, Inc., 502 U.S.
183, 189 (1991) (noting that "the title of a statute or section
can aid in" textual interpretation). Because the NVRA
requires disclosure of all materials described in Section
8(i)(1), including voter registration records, defendants must
permit inspection of the completed applications, as instructed
by the district court.
IV.
Appellants further contend that the district court’s interpre-
tation of the NVRA causes the statute to conflict with HAVA
PROJECT VOTE v. LONG 13
and the MOVE Act. Given that the requested registration
applications unquestionably fall within the plain language of
Section 8(i)(1), we need not look outside that plain language
in construing the statute. Where "the language is plain and
‘the statutory scheme is coherent and consistent,’ there is no
need to inquire further." In re JKJ Chevrolet, Inc., 26 F.3d
481, 483 (4th Cir. 1994). Accordingly, we need not consider
the impact of HAVA and the MOVE Act on the language of
Section 8(i)(1), which clearly requires public disclosure of
completed voter registration applications.
Appellants insist, however, that all three statutes address
related electoral proceedings and that to interpret them at
cross-purposes would lead to real confusion. We are not per-
suaded by this view. Even considering these statutes, both are
entirely consistent with the district court’s interpretation of
Section 8(i)(1). The Help America Vote Act requires, among
other things, that states establish a free access system through
which provisional voters can determine whether their votes
were counted, and if not, why not. 42 U.S.C.
§ 15482(a)(5)(B). The provision cited by appellants, HAVA
Section 302(a), provides in relevant part: "The appropriate
State or local official shall establish and maintain reasonable
procedures necessary to protect the security, confidentiality,
and integrity of personal information collected, stored, or oth-
erwise used by the free access system . . . ." Id. § 15482(a).
It also limits "[a]ccess to information about an individual pro-
visional ballot . . . to the individual who cast the ballot." Id.
According to appellants, these privacy provisions "would
make no sense if Congress intended the same type of personal
information to be publicly available under Section 8(i)(1) of
the NVRA from voter applications." Appellants’ Br. at 21.
Appellants’ argument fails to recognize that HAVA’s
security provisions only concern the "personal information
collected, stored, or otherwise used by the free access sys-
tem," 42 U.S.C. § 15482(a), which allows the voter—and
only the voter—to ascertain whether his ballot was counted.
14 PROJECT VOTE v. LONG
HAVA therefore protects the right to the secret ballot, and
does not pertain to the voter registration procedures governed
by the NVRA. In addition, HAVA explicitly states that "noth-
ing in this [Act] may be construed . . . to supersede, restrict,
or limit the application of . . . The National Voter Registration
Act." Id. § 15545(a). Thus, by its own terms, HAVA cannot
restrict or limit the application of the NVRA’s public disclo-
sure requirement.
Appellants next point to the Military and Overseas Voter
Empowerment Act as evidence that Congress did not want
Section 8(i)(1) to apply to voter registration applications. The
MOVE Act requires states to establish procedures "for absent
uniformed services voters and overseas voters to request by
mail and electronically voter registration applications and
absentee ballot applications" and for states to send such appli-
cations by mail and electronically. Id. § 1973ff-1(a)(6). The
Act further provides that
[t]o the extent practicable, [these procedures] shall
ensure that the privacy of the identity and other per-
sonal data of an absent uniformed services voter or
overseas voter who requests or is sent a voter regis-
tration application or absentee ballot application . . .
is protected throughout the process of making such
request or being sent such application.
Id. § 1973ff-1(e)(6)(B). According to appellants, "it would
make no sense to require these privacy protections if Con-
gress understood and expected that the registration applica-
tions at the end of ‘the process’ would be made publicly
available under Section 8(i)(1) of the NVRA." Appellants’ Br.
at 21.
Appellants’ argument ignores the plain language of the
MOVE Act, which expressly limits the application of its
security and privacy provisions to personal data conveyed
during the voter form request process. The provision cited by
PROJECT VOTE v. LONG 15
appellants—42 U.S.C. § 1973ff-1(e)(6)(B)—ensures that the
personal information of an overseas voter "who requests or is
sent a voter registration application or absentee ballot applica-
tion . . . is protected throughout the process of making such
request or being sent such application" (emphasis added).
Likewise, § 1973ff-1(e)(6)(A) requires states to "ensure that
the procedures established under subsection (a)(6) protect the
security and integrity of the voter registration and absentee
ballot application request processes." 42 U.S.C. § 1973ff-
1(e)(6)(A) (emphasis added). Because these privacy provi-
sions protect information transmitted during the process of
requesting—not submitting—a registration application, the
MOVE Act does not conflict with the NVRA’s requirement
that completed applications be disclosed.
V.
Finally, appellants’ proffered privacy concerns do not
necessitate reversal of the district court’s decision. In support
of their argument to the contrary, appellants point to Greid-
inger v. Davis, 988 F.2d 1344 (4th Cir. 1993), in which we
held that a statute that conditions voting on public release of
a voter’s Social Security number "creates an intolerable bur-
den on that right as protected by the First and Fourteenth
Amendments." Id. at 1355. Greidinger is inapposite here,
however, because the district court did not require public dis-
closure of Social Security numbers, which the court recog-
nized "are uniquely sensitive and vulnerable to abuse."
Project Vote,
752 F. Supp. 2d at 711-12. The district court
expressly concluded that Section 8(i)(1) "grants the plaintiff
access to completed voter registration applications with the
voters’ SSNs redacted for inspection and photocopying."
Project Vote, 813 F. Supp. 2d at 743 (emphasis added). Plain-
tiff has never requested completed applications with unredac-
ted Social Security numbers and does not object to the district
court’s redaction requirement. Accordingly, there is no danger
that this uniquely sensitive information will be compromised
by Section 8(i)(1)’s public disclosure requirement.
16 PROJECT VOTE v. LONG
Appellants next argue that "information other than appli-
cants’ SSNs, such as responses to requests regarding criminal
history, mental incompetency, and even home addresses,
phone numbers, and birth dates implicate real privacy inter-
ests." Appellants’ Reply Br. at 20. Because the Virginia voter
registration application form requires this personal informa-
tion, appellants contend, "it must be reasonably supposed that
conditioning voting on the public release of such information
will suppress registration contrary to congressional intent."
Appellants’ Br. at 22.
We do not think appellants’ privacy concerns unfounded.
By requiring public disclosure of personal information,* Sec-
tion 8(i)(1) may conceivably inhibit voter registration in some
instances. However, this potential shortcoming must be bal-
anced against the many benefits of public disclosure. It is self-
evident that disclosure will assist the identification of both
error and fraud in the preparation and maintenance of voter
rolls. State officials labor under a duty of accountability to the
public in ensuring that voter lists include eligible voters and
exclude ineligible ones in the most accurate manner possible.
Without such transparency, public confidence in the essential
workings of democracy will suffer.
It is not the province of this court, however, to strike the
proper balance between transparency and voter privacy. That
is a policy question properly decided by the legislature, not
the courts, and Congress has already answered the question by
enacting NVRA Section 8(i)(1), which plainly requires disclo-
*It is not clear, however, that applicants need to disclose information
regarding felony convictions and rulings on mental incapacity, as 42
U.S.C. § 1973gg-4(a)(1) requires states to accept and use the federal voter
registration form, which does not ask for such information, see U.S. Elec-
tion Assistance Commission, Register To Vote in Your State by Using
This Postcard Form and Guide (2006). Moreover, appellants’ position
with respect to prior felony convictions and mental incapacity appears to
discount the extent to which such information may already be a matter of
public record.
PROJECT VOTE v. LONG 17
sure of completed voter registration applications. Public dis-
closure promotes transparency in the voting process, and
courts should be loath to reject a legislative effort so germane
to the integrity of federal elections.
VI.
In the end, appellants ask us to revisit issues already
resolved by the Congress. It may or may not be that Section
8(i)(1) is the most effective means of promoting the NVRA’s
stated purposes. The public disclosure provision may or may
not "increase the number of eligible citizens who register to
vote" in federal elections and "enhance[ ] the participation of
eligible citizens as voters." 42 U.S.C. § 1973gg(b). But this
debate belongs in the legislative arena, not the courts. We also
decline to address every particular question that may arise
with respect to the implementation of Section 8(i)(1). That is
best left to the trial court upon remand. We do hold, however,
that completed voter registration applications are subject to
disclosure under the NVRA, as they are unquestionably "re-
cords concerning the implementation of programs and activi-
ties conducted for the purpose of ensuring the accuracy and
currency of official lists of eligible voters." Id. § 1973gg-
6(i)(1). Where, as here, "the statute’s language is plain, the
sole function of the courts . . . is to enforce it according to its
terms." Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004) (internal
quotation marks omitted). Accordingly, we affirm the judg-
ment and remand for further proceedings consistent with this
decision.
AFFIRMED AND REMANDED
