NANCY F. ATLAS, District Judge.
TABLE OF CONTENTS
I. BACKGROUND .........................................................702
A. The Primary and Primary Runoff Elections........................... 702
B. Plaintiffs' Allegations and Evidence................................703
C. Procedural Posture..................................................705
II. MOTIONS FOR SUMMARY JUDGMENT ..........................................706
A. Summary Judgment Standard..........................................706
B. Analysis...........................................................707
1. Have Plaintiffs Sued the Proper Defendants?.............................709
a. Is the Republican Party a Proper Defendant? ........................709
b. Are the County Defendants Proper Defendants? ........................709
i. Mississippi's Registration and Election Oversight
Structure and Procedure......................................709
ii. Analysis ......................................................711
c. Is Hosemann a Proper Defendant?.....................................713
2. Does Section 1973gg-9 Pose a Procedural Bar to Plaintiffs' Suit'? .......713
3. What Documents Do Plaintiffs Seek? .......................................717
4. Are Plaintiffs Entitled Under the NVRA to Inspect the Requested
Documents? .............................................................718
a. Statutory Construction ...............................................718
i. Plain Meaning-Overall Principles ..............................718
ii. Statutory Context of the Public Disclosure Provision Wit hin the NVRA ...........................................720 iii. Statutory Purpose of the NVRA .................................720 iv. Context of the NVRA Public Disclosure Provision in Light of Other Federal and State Laws ..................... 722 b. SRequested Documents ................................................. 723 i. Voter Roll ...................................................... 723 ii. Poll Books ...................................................... 724 iii. Absentee Ballot Applications and Envelopes ...................... 726 iv. Federal Post Card Applications ................................... 728 5. Does the NVRA Preempt Mississippi Law? ...................................... 729 a. Preemption Standard ..................................................... 729 b. Mississippi Law .......................................................... 731 c. Does the NVRA Require Disclosure of Unredacted Records? ................. 732 i. Project Vote is Distinguishable ......................... 732 ii. The NVRA Does Not Require Disclosure of Unredacted Documents ....................................................... 733 iii. Birthdates, Like Social Security Numbers, Are "Uniquel y Sensitive." ................................................... 736 d. The NVRA Public Disclosure Provision Does Not Preempt Mississippi's Redaction Provisions .................................... 740 III. PLAINTIFFS' PRELIMINARY INJUNCTION MOTION............................ 740 A. Preliminary Injunction Standard.................................. 740 B. Analysis ........................................................ 741 1. Substantial Likelihood of Success on the Merits ...................... 741 2. Irreparable Injury ................................................... 741 3. Balance of Hardships ................................................. 742 4. Disservice to the Public Interest .................................... 742 IV. THE REPUBLICAN PARTY'S SANCTIONS MOTION.............................. 743 A. Legal Standard .................................................. 743 B. Analysis ........................................................ 744 V. RULE 54(b) JUDGMENT .................................................. 744 VI. CONCLUSION AND ORDER ................................................. 745
The Court in this case is required to construe the scope of the National Voter Registration Act ("NVRA"), 42 U.S.C. § 1973 et seq.,
Before the Court are the following motions, each of which is ripe for consideration:
The Court held a hearing on Plaintiffs' Preliminary Injunction Motion on July 24, 2014 (the "July 24th Hearing"). Plaintiffs and Defendants presented evidence and made legal arguments to the Court at that time.
Having considered all the parties' briefing, the parties' oral arguments at the July 24th Hearing, all evidence of record, and the applicable legal authorities, the Court
On June 3, 2014, Defendant Republican Party conducted a primary election to determine the party's candidate for the November 2014 United States Senate election. The two highest vote-getters in the primary,
True the Vote characterizes itself as a "non-profit organization that works to protect
In June 2014, True the Vote initiated a campaign to seek "voter records" from the State of Mississippi.
Engelbrecht first traveled to Mississippi to request records the week prior to the June 24th runoff election. Specifically, Engelbrecht visited Hinds, Rankin, and Panola Counties.
After the runoff election, True the Vote assembled a team of roughly twenty volunteers, organized into ten teams of two, and instructed them to go to various Mississippi Counties and examine the counties' voting records from the runoff election.
The experiences of Ellen Swensen ("Swensen") and Susan Morse ("Morse"), two True the Vote volunteers who are not plaintiffs in this lawsuit, are illustrative.
Other individuals made similar requests from Mississippi counties. For example, on June 27, 2014, three days after the runoff, Plaintiff Roy Nicholson ("Nicholson") requested copies of poll books from Rankin County, but the County denied his request.
Plaintiffs filed this lawsuit on July 9, 2014.
In their Preliminary Injunction Motion, Plaintiffs seek a preliminary injunction preventing Defendants from destroying, tampering with, or permanently redacting information from the voting records Plaintiffs seek in this case.
The Court held an evidentiary hearing on Plaintiffs' Preliminary Injunction Motion on July 24, 2014. Plaintiffs presented live witness testimony and documentary evidence in support of their Motion. Defendants relied solely on cross-examination of Plaintiffs' witnesses. The parties also presented oral argument.
Since the hearing, the parties have submitted additional evidence and extensive briefing. Plaintiffs, five of the County Defendants, Hosemann, and the Republican Party have moved for summary judgment.
Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing of the existence of an element essential to the party's case, and on which that party will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); see also Baton Rouge Oil and Chem. Workers Union v. ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir.2002). Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED.R.CIV.P. 56(a); Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548; Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir. 2008).
For summary judgment, the initial burden falls on the movant to identify areas essential to the non-movant's claim in which there is an "absence of a genuine issue of material fact." Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir.
If the moving party meets its initial burden, the non-movant must go beyond the pleadings and designate specific facts showing that there is a genuine issue of material fact for trial. Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir.2001) (internal citation omitted). "An issue is material if its resolution could affect the outcome of the action. A dispute as to a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir.2005) (internal citations omitted).
In deciding whether a genuine and material fact issue has been created, the court reviews the facts and inferences to be drawn from them in the light most favorable to the non-moving party. Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336 F.3d 410, 412 (5th Cir.2003). The non-movant's burden is not met by mere reliance on the allegations or denials in the non-movant's pleadings. See King v. Dogan, 31 F.3d 344, 346 (5th Cir.1994) (holding that unverified pleadings do not "constitute competent summary judgment evidence"). Likewise, "conclusory allegations" or "unsubstantiated assertions" do not meet the non-movant's burden. Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th Cir. 2008). Instead, the nonmoving party must present specific facts which show "the existence of a genuine issue concerning every essential component of its case." Am. Eagle Airlines, Inc. v. Air Line Pilots Ass'n, Int'l, 343 F.3d 401, 405 (5th Cir.2003) (citation and internal quotation marks omitted). In the absence of any proof, the court will not assume that the non-movant could or would prove the necessary facts. Little, 37 F.3d at 1075 (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)).
The Court may make no credibility determinations or weigh any evidence, and must disregard all evidence favorable to the moving party that the jury is not required to believe. See Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 229 (5th Cir.2010) (citing Reaves Brokerage Co., 336 F.3d at 412-413). The Court is not required to accept the non-movant's conclusory allegations, speculation, and unsubstantiated assertions which are either entirely unsupported, or supported by a mere scintilla of evidence. Id. (citing Reaves Brokerage, 336 F.3d at 413). Affidavits cannot preclude summary judgment unless they contain competent and otherwise admissible evidence. See FED. R.CIV.P. 56(c)(4); Love v. Nat'l Med. Enters., 230 F.3d 765, 776 (5th Cir.2000).
Finally, "[w]hen evidence exists in the summary judgment record but the non-movant fails even to refer to it in the response to the motion for summary judgment, that evidence is not properly before the district court." Malacara v. Garber, 353 F.3d 393, 405 (5th Cir.2003). "Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment." See id. (internal citations and quotations omitted).
Plaintiffs, five County Defendants, Hosemann, and the Republican Party seek
The crux of Plaintiffs' allegations in their NVRA claims is that, under the NVRA, they are entitled to unredacted voting records, particularly "poll books." Defendants raise a bevy of arguments why they are entitled to summary judgment on Plaintiffs' claims.
For the reasons stated below, the Court grants Hosemann's request for summary judgment, grants the five County Defendants' motions for summary judgment, grants in part and denies in part the Republican Party's Summary Judgment Motion, and denies Plaintiffs' Summary Judgment Motion. Various reasons, as set forth below, warrant granting summary judgment in Defendants' favor on Plaintiffs' NVRA claims. Because many issues
Defendant Republican Party contends that it is an improper Defendant under the NVRA. The Republican Party argues that it is not a "State" under the NVRA, and that only States are subject to the NVRA's requirements. The Court agrees. The Fifth Circuit has held that "the NVRA only pertains to records maintained by the State." Voting for Am., Inc. v. Steen, 732 F.3d 382, 399 (5th Cir.2013). The Court of Appeals concluded that the NVRA Public Disclosure Provision did not cover documents in the possession of volunteer deputy registrars "before they are officially received or maintained by the State." Id. Steen dictates the same result in this case. The Republican Party is not an arm of the State, and the NVRA Public Disclosure Provision therefore does not apply to it. Indeed, Plaintiffs appear to concede that its NVRA claims are not directed at the Republican Party.
In this case, Plaintiffs sue the Election Commissions of nine Mississippi Counties (collectively, the "County Defendants"). The County Defendants contend that they are not proper parties and seek dismissal on that basis.
Under Mississippi law, various individuals and entities oversee voter registration and elections. Indeed, both Federal and Mississippi law contemplate that voter registration activities will be conducted at the State and local (e.g., County) levels.
At the top of the Mississippi Equal Protection administration pyramid sits the State Board of Election Commissioners, which is comprised of "the Governor, Secretary of State and the Attorney General."
In each county, the Clerk of the Circuit Court serves as the "Registrar."
Each County must also elect a board of five Election Commissioners (the "Election Commission").
County Executive Committees oversee primary elections.
County Registrars and Election Commissions act in concert with respect to ballots received before and during an election. Election Commissions are responsible for procuring ballot boxes for use at all general elections.
Copiah County, Jefferson Davis County, and Lauderdale County contend that they are not proper parties to this lawsuit because Plaintiffs asked only their respective Circuit Clerks, and not the County Election Commissions (i.e., the County Defendants),
While these County Defendants appear to be correct factually, their dismissal from this suit on this basis is not warranted. First, each County Circuit Clerk and Election Commission has access to certain voter election records at different times during the pre-election registration, election day voting, and post-election tabulation processes. Plaintiffs' requests for documents appear to have spanned periods when the materials were in the custody of different election oversight entities, and the actual custodians for any given County are unclear. Summary judgment in favor of these County Defendants on this basis is not warranted.
Further, the Counties implement Federal and State voter registration and election laws through the coordinated work of the Circuit Clerks, Registrars, and Election Commissions. If relief were granted to Plaintiffs, various entities and officials would need to implement the ruling. The Counties, through one or more of these election-related entities and individuals, are therefore necessary parties in this action, and dismissal of the County Defendants is unwarranted.
Defendant Hinds County asserts a different argument as to why it is an improper defendant. According to Hinds County, the NVRA Public Disclosure Provision applies only to State election officials, not County Election Commissions, because the provision specifically refers to States.
Hosemann also contends that he is an improper party because "[he] does not have any documents [P]laintiffs claim to have requested from local Circuit Clerks, and [P]laintiffs have never directed any NVRA requests to him."
The Court concludes that Hosemann is a proper Defendant in this case. The Public Disclosure Provision places the burden on "[e]ach State" to maintain records and make them available for inspection. 42 U.S.C. § 1973gg-6(i)(1) (emphasis added). The responsibility to ensure disclosure of required records thus ultimately falls on the State itself, and Hosemann as its chief election official. To the extent a State delegates record-maintenance and disclosure duties to local governments, the State nevertheless remains responsible if documents are not properly disclosed under the Public Disclosure Provision. See United States v. Missouri, 535 F.3d 844, 849 (8th Cir.2008) ("For example, Congress expressly used the term `ensure' for the requirement that `the identity of the voter registration agency through which any particular voter is registered is not disclosed to the public.' Missouri is directly responsible for ensuring this identity remains undisclosed, and if Missouri delegated this responsibility, it could not avoid liability for any failure to maintain such nondisclosure."); Harkless v. Brunner, 545 F.3d 445, 452-53 (6th Cir.2008) ("Congress grafted the NVRA onto the existing public assistance structure, under which the fifty states, not their political subdivisions, have the ultimate accountability . . . [T]he Secretary, as Ohio's chief election officer, is responsible for "harmonious combination" — or implementation and enforcement — of that program on behalf of Ohio."). Accordingly, Hosemann is a proper party in this lawsuit.
The NVRA creates a private right of action for individuals whose rights under the statute are violated. See 42 U.S.C. § 1973gg-9(b). The NVRA, however, requires claimants to take certain steps before filing an action. First, "a person who is aggrieved by a violation of this subchapter may provide written notice of the violation to the chief election official of the State involved." Id., § 1973gg-9(b)(1). Second, an aggrieved person must wait 90 days after the State officer's receipt of notice (or wait 20 days if the violation occurred within 120 days before an election), and, if the violation is not corrected, the person may then bring a civil action in federal court. Id., § 1973gg-9(b)(2). If, however, "the violation occurred within 30 days before the date of an election for Federal office," the aggrieved person does not have to provide notice to the State's chief election official, and thus does not have to wait 90 days, before filing a lawsuit. Id., § 1973gg-9(b)(3).
Defendants contend that Plaintiffs failed to satisfy the notice requirements of
Engelbrecht, the President of True the Vote,
Plaintiffs offer four reasons why Section 1973gg-9(b)(2) does not bar their suit. None of these contentions is persuasive. First, Plaintiffs argue that under Section 1973gg-9(b)(3), notice need not be given for any violation that occurs "within 30 days of" a Federal election, and the violations in this case occurred within 30 days "of" the June 24, 2014 primary runoff election.
To the extent Plaintiffs argue that no notice was necessary for any of their requests because all of the violations in this case occurred within 30 days prior to the election, Plaintiffs' own evidence defeats their argument. Only Engelbrecht, on behalf
Second, Plaintiffs argue that Section 1973gg-9(b)(2) is not jurisdictional; they contend the requirements are simply "a practical guide for enabling states in violation of the NVRA to correct the violation."
Third, Plaintiffs argue that even if the NVRA's notice requirements are normally a bar to relief, notice was not required in this case because "the act would be futile" given that the State "openly and plainly refuses to comply with the NVRA."
Miller is factually inapposite and its reasoning is thus unpersuasive in this
Fourth, Plaintiffs appear to argue that Engelbrecht's pre-election request to certain counties is sufficient to clear the statutory hurdle for the rest of the requests at issue.
Accordingly, Section 1973gg-9(b)(2) is a procedural bar to the majority of Plaintiffs' claims in this lawsuit. On this basis alone, summary judgment in favor of the Defendants is proper on Plaintiffs' NVRA claims except with respect to True the Vote's claim that Hinds and Rankin Counties violated the NVRA by failing to disclose absentee ballot applications and envelopes pursuant to the NVRA Public Disclosure Provision.
The Court next addresses the question of what documents Plaintiffs seek. Plaintiffs' various pleadings, briefs, and statements at the July 24th Hearing have painted varying pictures. In their pleadings, Plaintiffs seek an injunction barring Defendants from redacting information in "voter registration applications, absentee voting envelopes, absentee ballots and any other associated applications therewith, voter rolls, voter poll books, and federal post card applications."
The Court accordingly deems Plaintiffs to have abandoned claims for disclosure of documents not enumerated at the July 24th Hearing or in their briefing, such as voter registration applications. The Court addresses Plaintiffs' NVRA claims with respect to voter rolls, poll books, absentee ballot applications and envelopes, and Federal Post Card Applications (collectively, the "Requested Documents").
The Court next addresses the merits of Plaintiffs' NVRA claims. Central is the question whether the NVRA Public Disclosure Provision, 42 U.S.C. § 1973gg-6(i),
"[T]he starting point in interpreting a statute is its language, for if the intent of Congress is clear, that is the end of the matter." Arif v. Mukasey, 509 F.3d 677, 681 (5th Cir.2007) (quoting Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409, 113 S.Ct. 2151, 124 L.Ed.2d 368 (1993)); see also United States v. Renda, 709 F.3d 472, 481 (5th Cir.2013). In interpreting a statute, a Court should look to "the particular statutory language at issue, as well as the language and design of the statute as a whole." Renda, 709 F.3d at 481 (quoting Frame v. City of Arlington, 657 F.3d 215, 224 (5th Cir.2011)). Courts should "give the words of a statute their ordinary, contemporary, common meaning, absent an indication Congress intended them to bear some different import." Williams v. Taylor, 529 U.S. 420, 431, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000).
The Public Disclosure Provision provides:
42 U.S.C. § 1973gg-6(i). As the Fourth Circuit aptly stated, the language of the Public Disclosure Provision "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 sacrificed to administrative chicanery, oversights, or inefficiencies." Project Vote, 682 F.3d at 334-35.
The NVRA Public Disclosure Provision requires States to permit inspection and copying (i.e., disclosure) of "all records" that: (1) concern the implementation of a program or activity; (2) that is conducted for the purpose of ensuring the accuracy and currency; (3) of official lists of eligible voters.
First, the term "all records," as the Fourth Circuit has observed, has an "expansive meaning," and encompasses a variety of voter registration and removal documents. See Project Vote, 682 F.3d at 336. To be within this disclosure provision, a record must "concern the implementation of programs and activities." The word "concern" is a broad term meaning "to relate or refer to."
A list of voters is "accurate" if it is "free
Further, the records must relate to "official lists of eligible voters." A list is "official" if it is "authorized or issued authoritatively."
Thus, to be subject to disclosure under the NVRA, a record must ultimately concern activities geared towards ensuring that a State's official list of voters is errorless and up-to-date. These activities generally relate to voter registration and removal, the processes by which a State updates its lists to ensure they reflect all eligible voters. The Court must consider each component phrase or term of the Public Disclosure Provision in interpreting and applying the statute.
The Court must ensure that the NVRA Public Disclosure Provision is interpreted in light of the surrounding statutory provisions. The Public Disclosure Provision appears near the end of a detailed statute relating to voter registration and removal of ineligible voters from eligibility lists. The NVRA, as its title indicates, focuses on voter registration and removal, not on who voted in specific elections. Multiple provisions in the NVRA reflect this focus. See, e.g., 42 U.S.C. § 1973gg-2(a) ("[I]n addition to any other method of voter registration provided for under State law, each State shall establish procedures to register to vote in elections for Federal office . . ."); id., § 1973gg-3(a) ("Each State motor vehicle's license application . . . shall serve as an application for voter registration with respect to elections for Federal office . . ."); id., § 1973gg-5 (detailing what shall serve as a "voter registration agency" and what services should be provided by those agencies); id., § 1973gg-6(b) ("Any state program or activity to protect the integrity of the electoral process by ensuring the maintenance of an accurate and current voter registration roll for elections for Federal office . . ."). The NVRA, by its terms and structure, is designed to ensure that eligible applicants in fact are registered and that ineligible registrants are removed from the States' official voter lists. These features advance the NVRA's goal of safeguarding the integrity of those eligibility lists. No provision of the NVRA governs the actions of States, Counties, or individuals in administering elections.
The Court may also look to the purposes of a statute to construe its meaning. See U.S. ex rel. Babalola v. Sharma, 746 F.3d 157, 161 (5th Cir.2014) ("This Court looks
42 U.S.C. § 1973gg(a). Accordingly, Congress enacted the NVRA:
Id., § 1973gg(b). Furthermore, in considering the NVRA, the Senate Committee on Rules and Administration stressed that the law was meant to combat a trend of "declining numbers of voters who participate in Federal elections," a contributing factor to which was "difficulties encountered by some who desire to register to vote."
The NVRA Public Disclosure Provision is one means of ensuring compliance with the NVRA's stated goals. By opening up voter registration records for inspection, the Public Disclosure Provision shines a light on States' voter registration activities and practices. The Public Disclosure Provision thus helps "to ensure that accurate and current voter registration rolls are maintained." 42 U.S.C. § 1973gg(b); see also Project Vote, 752 F.Supp. 2d at 710 ("[I]t is evident that the last identified purpose of the statute is dependent upon,
The statutory landscape within which the NVRA was enacted also demonstrates that Congress did not intend the NVRA to regulate voting procedures in elections or election challenges. Other Federal laws address these matters.
With this statutory framework in mind, the Court turns to the applicability of the NVRA to each set of records Plaintiffs request.
Plaintiffs seek access to an unredacted copy of the Counties' voter rolls (collectively, the "Voter Roll").
The Voter Roll contains each voter's name, unique identification number, residential and mailing addresses, voting precinct code, registration date, voter status, last date voted, and congressional district assignment.
The Court concludes that there is no live controversy regarding disclosure of the Voter Roll. Defendants appear to agree that Mississippi's Voter Roll is disclosable under the NVRA.
Plaintiffs seek unredacted copies of poll books, contending that disclosure of these documents is required by the NVRA. Defendants contend poll books are not within the NVRA disclosure mandate and, alternatively, that poll books, if required to be disclosed under the NVRA, may be redacted to protect voters' privacy interests in their birthdates (when accompanied with their names and current addresses).
"[A] poll book is a list of those voters who are eligible to vote in a particular election who are all . . . on active status."
Plaintiffs' focus for this NVRA challenge is the June 24, 2014 primary runoff election. Under Mississippi's "open primary" system, voters do not register by party affiliation.
Democratic primary are each given an identical copy of the county poll book.
The Court concludes that poll books are not subject to disclosure under the NVRA Public Disclosure Provision. Poll books do not reflect all voters eligible to vote on election day. Poll books list only active status voters, which is a subset of all registered and potentially eligible voters. Inactive and pending status voters, for example, may still vote in an election despite not being listed in a poll book. The fact that these voters voted in the election will not be recorded in a precinct's poll book.
Because poll books are only partial lists of eligible voters, they are not records that are reviewed to ensure the accuracy and currency of "official lists of eligible voters." After an election, as in this case, poll books serve as a record of which active status voters voted in that election.
Plaintiffs contend that poll books reflect whether an individual voted in a party's primary and thus are necessary to ensure that certain voters do not illegally vote in the other party's primary runoff election.
The Court is unpersuaded by Plaintiffs' argument. While poll books may be one of multiple bases to determine who is eligible to vote in a specific party's primary runoff election, these books are not records used to ensure the accuracy and currency of official lists of eligible voters.
Plaintiffs request access to unredacted absentee ballot applications. Under Mississippi law, certain registered voters are authorized to vote by absentee ballot. These eligible voters may request to vote absentee by filling out an "absentee ballot application form." The absentee ballot application requires a sworn signature from the voter and requires the voter to provide the reason for her absence. Valid reasons include membership in the armed forces, being outside of the county on the date of the election, being over 65 years old, and being required to work on election day.
The NVRA Public Disclosure Provision does not encompass absentee ballot applications or absentee ballot envelopes. These documents neither concern voter registration nor are records concerning a program or activity to ensure the accuracy and currency of the voter roll. Absentee ballot applications are filled out by individuals already registered to vote in Mississippi. There is no evidence that these applications are used to update or maintain the voter roll.
Under the Uniformed and Overseas Citizens Absentee Voting Act ("UOCAVA"), uniformed military and overseas citizens may register and vote by absentee ballot in Federal elections.
Counties and the State of Mississippi may use Federal Post Card Applications both as a registration application and as a request for an absentee ballot.
The Court concludes that Plaintiffs in this case are not entitled to inspect Federal Post Card Applications. Hosemann concedes that Federal Post Card Applications are disclosable under the NVRA to the extent the application is submitted for the purpose of voter registration.
Plaintiffs contend the NVRA Public Disclosure Provision entitles them to copies of unredacted voter records, that is, copies of records disclosing voter birthdates. The Mississippi Public Records Act requires redaction of certain sensitive information, including birthdates, from public records. To the extent Plaintiffs are entitled under the NVRA Public Disclosure Provision to voter rolls, poll books, absentee ballot applications and envelopes, and Federal Post Card Applications, which the Court has concluded they are not, the seminal legal question becomes whether the NVRA allows redaction of any information within those records and, if not, whether the NVRA preempts Mississippi law prohibiting disclosure of certain information.
For the reasons detailed below, the Court concludes that the NVRA Public Disclosure Provision does not require automatic public disclosure of voters' or registrants' birthdates. Accordingly, under the facts presented in this case, the NVRA does not preempt Mississippi law.
The Elections Clause of the U.S. Constitution provides that "the Times,
There is no "presumption against preemption" in Elections Clause cases. See id. at 2256.
The Court also notes that legislation concerning the conduct of elections must be examined in light of the particular federal-state balance achieved in that arena. The Founders of the United States delegated substantial authority over Federal elections to the States. Congress has the authority to restrict, but has been cautious to circumscribe, the States' powers over the conduct of elections. See, e.g., Tashjian v. Republican Party of Conn., 479 U.S. 208, 217, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986) (upholding, against a First Amendment challenge, defendant's rule permitting independent voters to vote in party primaries, but noting that "the Constitution grants to the States a broad power to prescribe the `Times, Places and Manner of holding Elections for Senators and Representatives'").
In light of this preemption standard and prior case law regarding the federal-state balance in the conduct of elections, the Court turns to a review of the State and Federal statutes at issue.
Two provisions of Mississippi law prevent access to unredacted voting records. First, Mississippi law requires the Secretary of State "to procure, implement, and maintain an electronic information processing system and programs capable of maintaining a centralized database of all registered voters in the state."
Second, Mississippi law grants "any person . . . the right to inspect, copy or mechanically reproduce or obtain a reproduction of any public record of a public body."
Resolution of the issue whether the NVRA preempts Mississippi law in this case boils down to whether the NVRA mandates disclosure of unredacted documents, thereby overriding voter registrants' privacy interests. If so, the NVRA would directly conflict with Mississippi's Redaction Provisions, which preclude such disclosures, and the NVRA would preempt Mississippi law. If the NVRA does not mandate universal disclosure, then the two laws do not conflict, there is no preemption, and the Mississippi law requiring redaction of birthdates controls.
Plaintiffs rely heavily on the ruling in Project Vote. Both the district court and the Fourth Circuit in that case held that the NVRA required full disclosure of "completed voter registration applications" and declined to allow the defendants to redact various pieces of registrants' information, including birthdates.
In Project Vote, pursuant to the NVRA Public Disclosure Provision, the plaintiff, Project Vote,
Project Vote is distinguishable on its facts and thus is not persuasive authority for the case at bar. First, Project Vote sought voter registration documents based on victims' allegations that they suffered wrongs in the heart of the NVRA, namely, illegal denial of local college students' applications to register to vote prior to an election. Months after that election, Project Vote made a narrow request for the applications of those individuals denied registration. Because the victims were students, birthdates listed on the applications were important information in ascertaining whether registration was improperly denied. The Project Vote courts did not need to reach the question presented in this case-whether all voter registrants' birthdates must be disclosed in response to any and all requests, even when there is no showing that the information is material to the particular request.
In stark contrast, Plaintiffs here seek materials for an election challenge, a goal outside the purposes of the NVRA. Plaintiffs seek voluminous materials from many (if not all) Mississippi Counties. Finally, Plaintiffs provide no meaningful explanation of the need for birthdates in light of the substantial information Defendants have already produced. Project Vote is not persuasive authority for the relief Plaintiffs seek here.
Moreover, Project Vote is not binding authority and this Court respectfully declines to follow the Fourth Circuit's ruling on the scope of the required disclosure. The Public Disclosure Provision requires States to make available for inspection "all records" concerning voter registration and ineligible voter removal programs and activities. See 42 U.S.C. § 1973gg-6(i)(1). The modifier "all" is meant to expand the range of documents produced. The term "all records" does not require automatic disclosure of all information within the covered records. Congress's language in the Public Disclosure Provision does not preclude redaction of certain highly sensitive information contained within disclosable records.
First, Plaintiffs' interpretation of "all records" to include all information in each record is inconsistent with Section 1973gg-6(i)(2), which immediately follows Section 1973gg-6(i)(1), the provision on which Plaintiffs rely for their requests. If the State has a ground to believe that a registered voter has changed addresses or otherwise has become ineligible to vote, the State may not remove that registered voter from that State's voter roll without sending the registrant a card which the registrant must complete. 42 U.S.C. §§ 1973gg-6(c), 1973gg-6(d)(1). The registrant is asked whether she changed her residence and states that if she does not return the card, she may be required to further affirm or confirm her residence before she votes in a Federal election. Id., § 1973gg-6(d)(2)(A). The card also states that if the registrant fails to vote in the next two Federal general elections, her name "will be removed from the list of eligible voters."
Second, Plaintiffs' interpretation would also conflict with, or render a nullity, other related statutes. Under the Civil Rights Act of 1960, 42 U.S.C. § 1974,
Third, the Court notes that the Public Disclosure Provision was not drafted in a vacuum. Congress enacted the NVRA in 1993, thirty-eight years after it passed the Voting Rights Act of 1965, 42 U.S.C. § 1973 et seq.,
In short, the Court concludes that the NVRA Public Disclosure Provision does not require States to make available to all requesters entirely unredacted voter registration records in all circumstances.
Moreover, even if the NVRA could be construed to require disclosure of unredacted documents, including birthdates, in certain circumstances such as those presented in Project Vote, the Court would nevertheless conclude that birthdates must be redacted in the case at bar. Congress, in enacting the NVRA, expressed the goal, inter alia, "to establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office." 42 U.S.C. § 1973gg-6(b) (emphasis added). In other words, Congress sought to ensure that the NVRA increased, not discouraged, voter registration and participation. See Project Vote, 752 F.Supp.2d at 710. It is for that reason the district court in Project Vote concluded that SSNs are "precluded from disclosure, as disclosure of that information would undermine the purposes of the statute." Id. at 711. That court recognized that SSNs are "uniquely sensitive and vulnerable to abuse" and that requiring States to disclose SSNs pursuant to an NVRA records request would make citizens hesitant to register to vote. Id. at 711-12; see also Project Vote/Voting for Am., Inc. v. Long, 889 F.Supp.2d 778, 781-82 (E.D.Va.2012).
The Court is persuaded that disclosure of individuals' birthdates raises serious concerns similar to disclosure of SSNs, particularly when the birthdate disclosures are in conjunction with the disclosure of individuals' full names and current addresses. Birthdates, when combined with other identifying information available in voter registration records, can be used to obtain-both legally and improperly—a host of other highly personal information about an individual, particularly in this day of computers with vast searching powers. See Scottsdale Unified Sch. Dist. No. 48 v. KPNX Broad. Co., 191 Ariz. 297, 955 P.2d 534, 539 (1998) (en banc). "With both a name and birth date, one can obtain information about an individual's criminal record, arrest record (which may not include disposition of the charges), driving record, state of origin, political party affiliation, social security number, current and past addresses, civil litigation record, liens, property owned, credit history, financial accounts, and, quite possibly, information concerning an individual's complete medical and military histories, and insurance and investment portfolio." Id. Indeed, birthdates, when combined with name and place of birth, "can reveal social security numbers." Tex. Comptroller of Public Accounts v. Attorney General of Texas, 354 S.W.3d 336, 345 (Tex. 2010). Also problematic is that individuals may use their birthdates as a password or personal identification number for their bank, credit card, and internet-based accounts. Companies often use birthdates as a security measure to verify an individual's identity.
For these reasons, various courts have recognized in the context of FOIA litigation that birthdates are sensitive information and have construed FOIA's "Exemption 6" to protect the disclosure of
Similarly, the Federal Courts recognize that birthdates are highly sensitive. The Federal Rules of Civil Procedure require litigants to redact birthdates and SSNs in all court filings.
One of the reasons that governments seek to protect birthdates and SSNs from disclosure, and warn the public against voluntary disclosure of that information, is to mitigate the risk of identity theft.
Endorsing Plaintiffs' position here—that "all records" in the NVRA Public Disclosure Provision means automatic disclosure of voter registrants' birthdates—would enable any person or organization, regardless of residency, citizenship, or purpose, to obtain almost all personal information, including birthdates, of millions of people
Plaintiffs' interpretation, therefore, contravenes the NVRA's purpose and historical bases for enactment, and would have the opposite effect than Congress intended. The Court acknowledges that there may be circumstances that justify the disclosure of voter registrants' birthdates.
Accordingly, the Court concludes that, under the facts presented, the NVRA Public Disclosure Provision does not require the disclosure of unredacted voter registration documents, including voter registrant birthdates.
The NVRA Public Disclosure Provision preempts Mississippi's Redaction Provisions only if the two statutes "directly conflict." On the facts presented, the Public Disclosure Provision does not require disclosure of voter registration records that reveal all voter registrants' birthdates. Plaintiffs thus have failed to show in this case that the NVRA Public Disclosure Provision directly conflicts with Mississippi's Redaction Provisions to the extent that they require redaction of birthdates from the documents Plaintiffs have requested. The NVRA Public Disclosure Provision accordingly does not preempt Mississippi's significant State legislative determination to protect SSNs and birthdates of registered voters from disclosure.
Plaintiffs seek a preliminary injunction requiring Defendants to make the Requested Documents available for inspection with birthdates unredacted.
"To be entitled to a preliminary injunction, the applicants must show (1) a substantial likelihood that they will prevail on the merits; (2) a substantial threat that they will suffer irreparable injury if the injunction is not granted; (3) their substantial injury outweighs the threatened harm to the party to be enjoined; and (4) granting the preliminary injunction will not disserve the public interest." Steen, 732 F.3d at 386 (5th Cir. 2013) (quoting Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 574 (5th Cir. 2012)). The burden of proof on all four factors is always on the plaintiff. Canal Authority of Florida v. Callaway, 489 F.2d 567, 573 (5th Cir. 1974). In determining whether to grant preliminary relief, the Court "must remember that a preliminary injunction is an extraordinary and drastic remedy which should not be granted unless the movant clearly carries the burden of persuasion." Id.; see also Voting for Am., 732 F.3d at 386.
"To assess the likelihood of success on the merits, [courts] look to the standards provided by the substantive law." Janvey v. Alguire, 647 F.3d 585, 596 (5th Cir.2011) (quoting Roho, Inc. v. Marquis, 902 F.2d 356, 358 (5th Cir.1990)). The Court has held that Plaintiffs' NVRA claims are procedurally barred and has rejected Plaintiffs' positions on the merits
Plaintiffs have not shown a substantial threat that they will suffer "irreparable injury" if a preliminary injunction is denied. In this case, Plaintiffs seek voting records concerning the June 24, 2014 Republican primary runoff election. Mississippi is required to maintain the requested voting records for at least 22 months after the election, more than sufficient time for this case to proceed to final judgment.
Plaintiffs also assert a claim of "vote dilution" under 42 U.S.C. § 1983 and the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs contend that they need immediate access to the requested voting records to establish that claim.
Unlike Plaintiffs, who will suffer no significant harm from denial of a preliminary injunction, Defendant Hosemann has demonstrated substantial harm to his interest if the Court grants the requested preliminary injunction. The State, through Hosemann, has a significant interest in enforcing its enacted laws, including the Mississippi Public Records Act. Mississippi law requires redaction of some of the information that Plaintiffs seek. Permitting Plaintiffs access to unredacted voter records at this early stage of the lawsuit would undermine Mississippi's effort to enforce its own laws. See Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406, 419 (5th Cir.2013), application to vacate stay denied, ___ U.S. ___, 134 S.Ct. 506, 187 L.Ed.2d 465 (2013) (stating, in issuing stay of district court's grant of a preliminary injunction pending appeal, that "the State necessarily suffers the irreparable harm of denying the public interest in the enforcement of its laws"). Accordingly, this factor weighs in Defendants' favor.
Finally, the Court concludes that granting Plaintiffs' requested preliminary injunction would disserve the public interest. Because Mississippi, through Hosemann,
Moreover, the harm to the public would be particularly onerous in this case. Granting a preliminary injunction on Plaintiffs' NVRA claims requiring Defendants to disclose to Plaintiffs voter registrants' birthdates in the Requested Documents would grant Plaintiffs the ultimate relief they seek. Once voter birthdates are disclosed, the information becomes publically available for all time. The release would nullify any defense to the claims regardless of the Court's ultimate rulings on the merits. See Enterprise Int'l, Inc. v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464, 476 (5th Cir.1985) ("A preliminary injunction, therefore, should not grant relief properly awarded only in a final judgment, and it is an abuse of discretion for the district court to issue a preliminary injunction which permits one party to obtain an advantage by acting,
For these reasons, the Court would deny Plaintiffs' request for a preliminary injunction if it had to reach the issue.
The Republican Party moves for Rule 11 sanctions against Plaintiffs and their counsel requiring them "to reimburse the Party for its fees, costs, and expenses in this action."
Federal Rule of Civil Procedure 11 ("Rule 11") applies to any civil suit in federal district court. Monetary sanctions may be awarded against offending attorneys for violations of Rule 11(b)(2), which requires that a party's legal contentions, claims, and defenses be "warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law." FED.R.CIV.P. 11(b)(2); Marlin v. Moody Nat'l Bank, 533 F.3d 374, 380 (5th Cir. 2008). Monetary sanctions may also be awarded against either attorneys or the parties if "the factual contentions [do not] have evidentiary support or, if specifically so identified, will [not] likely have evidentiary support after a reasonable opportunity for further investigation or discovery." FED.R.CIV.P. 11(b)(3), 11(c)(5)(A); Skidmore Energy, Inc. v. KPMG, 455 F.3d 564, 568 (5th Cir.2006).
"[T]he standard under which the attorney is measured under Rule 11 is an objective, not subjective, standard of reasonableness under the circumstances." Jenkins v. Methodist Hospitals of Dallas, Inc., 478 F.3d 255, 263-65 (5th Cir.2007). Accordingly, an attorney's good faith will not, by itself, protect against the imposition of Rule 11 sanctions. Childs v. State Farm Mut. Auto. Ins. Co., 29 F.3d 1018, 1024 (5th Cir.1994).
The Advisory Committee Note to Rule 11 provides that a lawyer is required to "`stop-and-think' before . . . making legal or factual contentions." Advisory Committee Notes on FED.R.CIV.P. 11 (1993 Amendments); see also generally Advisory Committee Notes on FED. R. CIV. P. 11 (2007 Amendments). The Fifth Circuit has articulated a "snapshot rule," whereby "Rule 11 liability is assessed only for a violation existing at the moment of filing." Marlin, 533 F.3d at 380; see also Thomas v. Capital Sec. Servs., Inc., 836 F.2d 866, 874 (5th Cir.1988) (en banc) ("Like a snapshot, Rule 11 review focuses upon the instant
The Republican Party appears to raise two reasons why sanctions against Plaintiffs and their counsel are appropriate in this case. First, the Republican Party contends that, as a matter of law, Plaintiffs are not entitled to any of the documents they seek under the NVRA.
While Plaintiffs' claims against Defendant Republican Party do not pass muster on summary judgment, the Court concludes at this time that sanctions against Plaintiffs are not warranted. Among the documents Plaintiffs seek through this lawsuit are absentee ballot applications and envelopes. Plaintiffs apparently were under the impression at the time they filed suit that the Republican Party controlled access to those documents.
Rule 54(b) provides for entry of a final judgment as to some but not all claims in a lawsuit "if the court expressly determines that there is no just reason for delay." FED.R.CIV.P. 54(b); Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 9, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980). Entry of a final judgment pursuant to Rule 54(b) requires a finding that the ruling is final as "an ultimate disposition of an individual claim entered in the course of a multiple claims action" and that there is "no just reason for delay" in entering the final judgment. Curtiss-Wright Corp. at 7-8, 100 S.Ct. 1460; see also Gabarick v. Laurin Maritime (Am.), Inc., 650 F.3d 545, 552 (5th Cir.2011).
A Rule 54(b) final judgment "reflects a balancing of two policies: avoiding the danger of hardship or injustice through delay which would be alleviated by immediate appeal and avoid[ing] piecemeal appeals." Eldredge v. Martin Marietta Corp., 207 F.3d 737, 740 (5th Cir.2000) (internal quotations and citations
The Court concludes that entry of final judgment is proper on Plaintiffs' NVRA claims. The Court has scoured the July 24th Hearing record, the parties' briefing, and the summary judgment record and concludes that Plaintiffs' NVRA claims fail on multiple grounds as a matter of law. Thus, no future development at the trial level will require the Court to consider these claims again or will moot these claims. Furthermore, Plaintiffs' vote dilution claim is independent of their NVRA claims. Entry of final judgment on Plaintiffs' NVRA claims will not impact the disposition of Plaintiffs' vote dilution claim. Finally, Plaintiffs have stressed that "time is of the essence," and the Court agrees. Entry of final judgment on Plaintiffs' NVRA claims will facilitate Plaintiffs' appeal of this Court's decision disposing of those claims, should Plaintiffs wish to do so. Accordingly, the Court enters final judgment on Plaintiffs' NVRA claims.
For a variety of reasons, the Court concludes that Plaintiffs' NVRA claims fail as a matter of law. First, nearly all of Plaintiffs' requests on which they base their NVRA claims did not meet the notice and cure requirements of 42 U.S.C. § 1973gg-9(b). Second, Plaintiffs are not entitled to any of the Requested Documents they seek in this case under the NVRA. Neither poll books nor absentee ballot applications and envelopes fall within the NVRA Public Disclosure Provision. Mississippi's Voter Roll does fall within that provision, but Plaintiffs already have a copy of the Voter Roll and Defendant Hosemann has conceded that it is disclosable under the NVRA Public Disclosure Provision. Moreover, Plaintiffs failed to properly request Federal Post Card Applications. Third, even if the NVRA required disclosure of the Requested Documents, the NVRA would not require Defendants to supply Plaintiffs with unredacted records disclosing birthdates under the facts of this case. For all these reasons, summary judgment in favor of Defendants is appropriate on Plaintiffs' NVRA claims.
The Court recognizes that, in many respects, this is a case of first impression. Future cases are likely to arise where litigants dispute the contours of the NVRA Public Disclosure Provision. To ameliorate confusion among the requesters of NVRA documents and election officials at State and County levels who maintain NVRA records, as well as to avoid potentially conflicting rulings by different courts, the Court urges Congress to clarify the scope of the NVRA Public Disclosure Provision in light of other longstanding laws and the important competing interests
For all these reasons, it is hereby
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Original Codification Post-Sept. 1, 2014 Codification
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42 U.S.C. § 1973gg 52 U.S.C. § 20501
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42 U.S.C. § 1973gg-1 52 U.S.C. § 20502
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42 U.S.C. § 1973gg-2 52 U.S.C. § 20503
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42 U.S.C. § 1973gg-3 52 U.S.C. § 20504
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42 U.S.C. § 1973gg-4 52 U.S.C. § 20505
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42 U.S.C. § 1973gg-5 52 U.S.C. § 20506
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42 U.S.C. § 1973gg-6 52 U.S.C. § 20507
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42 U.S.C. § 1973gg-7 52 U.S.C. § 20508
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42 U.S.C. § 1973gg-8 52 U.S.C. § 20509
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42 U.S.C. § 1973gg-9 52 U.S.C. § 20510
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42 U.S.C. § 1973gg-10 52 U.S.C. § 20511
Copiah County and Lauderdale County object to these incident reports on the grounds that: (a) the Court never agreed to receive them into evidence; (b) the documents are hearsay and have no "indicia of reliability"; and (c) Copiah County and Lauderdale County never had a chance to address the documents at the July 24th Hearing. See Copiah County's Objection [Doc. # 64], ¶¶ 2, 3, 5; Lauderdale County's Objection [Doc. # 70], ¶¶ 1-3. Hosemann has moved to strike certain of these incident reports on the basis of hearsay. See Hosemann's Motion to Strike [Doc. # 117], at 7-17. The Court clarifies its comments at the end of the July 24th Hearing regarding these submissions by Plaintiffs. The Court receives these incident reports in evidence for the proposition that volunteers visited the Counties designated in the reports and that the County officials denied their document requests, but does not rely on the substance of the information in the reports as to what transpired during those visits. Accordingly, the Court overrules Copiah County and Lauderdale County's objections and denies Hosemann's Motion to Strike to this extent.
Id. at 366, 52 S.Ct. 397.
