Whether the National Voter Registration Act prohibits state laws that limit how people can access and use voters’ personal information.
The National Voter Registration Act (“NVRA”) aims to “enhance the participation of eligible citizens as voters in elections for Federal office.” 52 U.S.C.A. § 20501(b)(2) (West). The stated purposes of the NVRA are to establish procedures that increase the number of eligible voters, to make it easier for eligible citizens to vote, to protect the integrity of the electoral process, and to ensure that accurate and current voter registration rolls are maintained. As part of this mission, the NVRA requires that states have procedures in place to remove voters from statewide voter registration lists when they have died or moved away, and states must make records about these list-maintenance activities that can be disclosed to the public to ensure the states are complying with the NVRA.
In 2002, Congress passed the Help America Vote Act (“HAVA”), which required states to compile state-wide lists of every legally registered voter in the state. Since then, every state has compiled large lists of every voter in the state. These lists ensure that states can run elections well, knowing who is voting and being able to comply with various election laws. These lists contain large volumes of very sensitive data about people: their full names, addresses, birth dates, social security numbers, contact information, voting history, party affiliation, drivers license numbers, and more.
Maine, like many other states, created a HAVA-compliant list and has imposed certain access, use, and transfer limitations to ensure that the list does not create severe privacy risks for Maine citizens. Specifically, Maine’s Privacy Law only allows people to request the statewide Voter List if they are going to use it to evaluate Maine’s compliance with the NVRA, and it prohibits people from using the list to publicly identify individual voters on the internet or through other means.
The Public Interest Legal Foundation (“PILF”), a not-for-profit entity that focuses on election integrity—occasionally to the point of wrongfully accusing innocent people of being undocument immigrants committing felonies—sued Maine for the state’s Privacy Law, alleging that it is preempted by the NVRA. PILF requested access to Maine’s statewide Voter List, a request that Maine initially denied because PILF did not meet Maine’s requirements organizations that could legally obtain the list. PILF sued, and during its lawsuit, Maine amended the law to permit organizations like PILF to obtain the list so long as they only used it to evaluate Maine’s compliance with the NVRA and did not use it to violate Maine residents’ privacy by releasing individually identifying information to the public such as voters’ address, social security numbers, and other info contained in the Voter List.
PILF continued its lawsuit. According to PILF, because the NVRA directs states to make available for public inspection records of its “programs and activities” related to its NVRA compliance, Maine’s Privacy Law cannot legally place access, transfer, and use restrictions on the statewide Voter List.
In its order on PILF’s Motion for Summary Judgment, the district court agreed with PILF. Maine appealed the judgment to the First Circuit.
EPIC’s amicus brief explains why Maine’s Privacy Law is not preempted by the NVRA because voter privacy and election integrity go hand-in-hand. EPIC’s brief first explains the history of voter privacy in the United States, showing how policies such as the secret ballot have been enacted so that voters may vote their conscience free from coercion, intimidation, and bribery. EPIC’s brief then explains why the NVRA should not be interpreted to preempt Maine’s Voter Privacy law: the text and legislative history of the NVRA do not show any intent to displace state voter privacy laws, and the district court’s interpretation of the NVRA would displace dozens of important and non-controversial voter privacy laws nationwide if adopted widely. EPIC’s brief then shows that access, transfer, and use restrictions are extremely common and useful policies across different issue areas whenever transparency and privacy are being balanced.