Maine heads to court Thursday to defend its policy of shielding voter registration records from public disclosure against unlikely allies—a conservative election integrity watchdog and the Biden administration’s Justice Department.
The case could have far-reaching consequences for government transparency, press freedom, the First Amendment, and clean elections well beyond Maine, said J. Christian Adams, president of Public Interest Legal Foundation.
“This case is a big deal for transparency. If we lose this case, everyone will have a tougher time accessing information from elected officials,” Adams told The Daily Signal.
Public Interest Legal Foundation won a lawsuit in March against Maine’s secretary of state, Shenna Bellows, in which the organization sought to access voter registration information under the National Voter Registration Act of 1993.
Bellows appealed the ruling to the U.S. Court of Appeals for the 1st Circuit, where oral arguments are set for 9:30 a.m. Thursday at the federal courthouse in Boston.
Maine argues that it is defending voter privacy. State law prohibits use of voter lists for certain research and stipulates that organizations or individuals may not “use the voter information or any part of the information for any purpose that is not directly related to evaluating the state’s compliance with its voter list maintenance obligations.”
“Voter privacy is foundational to the freedom to vote in accordance with your beliefs, free of interference,” Bellows said Tuesday in a public statement. “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.”
She added: “Mainers should be able to register to vote without fear that someone will post their sensitive personal information online.”
My book “The Myth of Voter Suppression” details the national problem of poor voter list maintenance, often in violation of the National Voter Registration Act, also known as the “motor voter” law. Lack of maintenance potentially creates openings for fraud when voter rolls include the names of deceased voters and voters who have moved outside a jurisdiction.
Bellows, former executive director of the American Civil Liberties Union of Maine, is the first state-level official to appeal after the Public Interest Legal Foundation won similar cases in Illinois and Maryland.
The National Voter Registration Act allows people to register to vote when getting their driver’s license. The federal law also requires states to keep updated voter registration lists.
In July, the U.S. Justice Department filed an amicus curiae brief supporting the Public Interest Legal Foundation’s right to obtain the voter rolls.
“The district court correctly held that Section 8(i) [of the National Voter Registration Act] requires the secretary to disclose the voter file,” the Justice Department brief signed by Assistant Attorney General Kristen Clarke says.
“Statutory text, context, and purpose establish that Section 8(i) covers records concerning both voter registration and list-maintenance activities, including voter registration lists such as the voter file,” the Justice Department’s court brief continues. “The secretary’s reliance on select provisions of Section 8 and statements from the Federal Election Commission (FEC) do not support her contrary argument.”
The brief also criticizes Maine’s “use ban” for voter lists, but asserts that the Maine Secretary of State’s Office has other options to protect voter privacy.
“However, Maine retains many options to protect voters’ privacy, which the NVRA does not preempt or hinder,” the Justice Department argues. “For instance, states may redact certain particularly sensitive information before disclosing voters’ records. Likewise, they may prohibit use or dissemination of voter data that does not further the NVRA’s purposes. And the NVRA leaves intact many state and federal laws designed to prevent voter intimidation or other abuses.”
Adams said he isn’t surprised a Justice Department under a Democratic administration would be on his side in this case.
“This issue is cut and dry, and Congress spelled this out in the NVRA 30 years ago,” Adams said. “The Department of Justice recognizes that election information should be public.”
In its lawsuit, the Public Interest Legal Foundation seeks Maine’s voter rolls as well as confirmation of its right to analyze and speak about any errors and violations of federal law.
The Justice Department’s filing adopts the legal foundation’s position that voter rolls are public records and states can’t penalize citizens for identifying and communicating about failures of election officials. The department calls for the appeals court to affirm the lower court ruling.
Public Interest Legal Foundation requested a copy of Maine’s complete statewide voter file in October 2019. After the Secretary of State’s Office denied the request, the foundation filed the lawsuit in February 2020.
Maine previously prohibited disclosure of the voter file to any entities other than campaigns. The Maine Legislature amended state law to disclose voter lists in 2021. Still, the change prohibited organizations from disseminating information online or using the file for research purposes not already approved by the Legislature, according to the legal foundation.
The Public Interest Legal Foundation amended its complaint to challenge the new restrictions in Maine’s tweaked law.
The new law also prohibits organizations or individuals from using voter data, for example, to compare Maine’s voter rolls to New York’s voter rolls to identify duplicate registrations across state lines. The state also provides for fines for any activity other than “evaluating” Maine’s compliance with federal law on voter list maintenance.
Public Interest Legal Foundation contends that staffers of the Maine Secretary of State’s Office and the top lobbyist for the Maine Democratic Party helped craft the new law.
Another organization that the legal foundation says helped craft the Maine law is the Electronic Privacy Information Center. The center previously sued to block then-President Donald Trump’s Presidential Advisory Commission on Election Integrity in 2017 from gaining access to states’ voter rolls in order to compare states’ accuracy.
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