Fusaro v. Howard, Civil Action No. ELH-17-3582

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
Writing for the CourtEllen Lipton Hollander, United States District Judge
Citation472 F.Supp.3d 234
Parties Dennis FUSARO, Plaintiff, v. Charlton T. HOWARD III, et al., Defendants.
Docket NumberCivil Action No. ELH-17-3582
Decision Date14 July 2020

472 F.Supp.3d 234

Dennis FUSARO, Plaintiff,
Charlton T. HOWARD III, et al., Defendants.

Civil Action No. ELH-17-3582

United States District Court, D. Maryland.

Signed July 14, 2020

472 F.Supp.3d 238

John R. Garza, Garza Regan and Associates PC, Rockville, MD, Benjamin Barr, Pro Hac Vice, Law Office of Benjamin Barr, Chicago, IL, Stephen R. Klein, Pro Hac Vice, Barr & Klein PLLC, Washington, DC, for Plaintiff.

Adam Dean Snyder, Andrea William Trento, Office of the Attorney General, Baltimore, MD, for Defendants.


Ellen Lipton Hollander, United States District Judge

This litigation involves a constitutional challenge under the First Amendment to a provision of Maryland's election law. In particular, plaintiff Dennis Fusaro challenges § 3-506 of the Election Law Article ("E.L.") of the Maryland Code (2017 Repl. Vol.), which limits access to Maryland's list of registered voters (the "List") to Maryland residents who are also registered voters, and only for a use related to the "electoral process." Fusaro, a Virginia resident, was denied access to the List because he does not live in Maryland and is not a Maryland registered voter. He filed suit against the following defendants, in their official capacities, seeking declaratory and injunctive relief: Emmet Davitt, who was then the Maryland State Prosecutor; David McManus, as Chair of the Maryland State Board of Elections (the "SBE" or the "Board"); Patrick Hogan, as Vice Chair of the Board; and Board Members Michael Cogan, Kelley Howells, and Gloria Lawlah.

The Maryland State Prosecutor serves pursuant to appointment by the Governor; the position is not an elected office. As discussed, infra , Davitt previously prosecuted Fusaro for a Maryland campaign finance violation. Fusaro was ultimately acquitted. Fusaro sought a copy of the List in order to contact Maryland voters to complain about Davitt.

Notices of Substitution have since been filed as to various defendants. Davitt has been succeeded by Charlton T. Howard III (ECF 52); Cogan has replaced McManus as Chair of the SBE; William G. Voelp

472 F.Supp.3d 239

succeeded Cogan; and Lawlah was succeeded by Malcom L. Funn. ECF 44. I shall sometimes refer to the defendants collectively as the "State."

I. Procedural Summary

Count I of the suit concerns access to the List. Fusaro alleges that E.L. § 3-506(a)(1) is unconstitutional, both facially and as applied to him, because it provides that only a "Maryland registered voter" may obtain a "copy of a list of registered Maryland voters ...." ECF 1, ¶ 27. Therefore, he contends that the statute "selectively advantages some political speakers and disadvantages others." Id. ¶ 30. Fusaro maintains that his "voice in Maryland politics may not be selectively silenced simply because he is not a registered voter" in Maryland. Id. ¶ 32.

Count II of the suit concerns use of the List. Fusaro claims that E.L. §§ 3-506(a)(1)(ii) and (c) create an unconstitutional restriction on speech. In this regard, he points out that E.L. § 3-506(a)(1)(ii) requires a Maryland registered voter requesting the List to make a "statement, signed under oath, that the list is not intended to be used for ... any ... purpose not related to the electoral process", and E.L. § 3-506(c) provides: "A person who knowingly allows a list of registered voters, under the person's control, to be used for any purpose not related to the electoral process is guilty of a misdemeanor ...." According to Fusaro, the provision prohibits use of the List for "constitutionally-protected political speech ...." Id. ¶ 36. He also contends that the phrase in E.L. § 3-506(c), "not related to the electoral process" is "unconstitutionally vague, facially and as applied ...." Id. ¶ 40. And, he claims that E.L. § 3-506 "threatens [him] with prosecution for forbidden uses of the registered voter list that cannot be readily determined." Id.

By Memorandum Opinion (ECF 26) and Order (ECF 27) of September 4, 2018, I denied Fusaro's motion for preliminary injunction and granted defendants’ motion to dismiss the suit, concluding that Fusaro had not stated a claim under the First Amendment. See Fusaro v. Davitt , 327 F. Supp. 3d 907 (D. Md. 2018). In large measure, I concluded that the First and Fourteenth Amendments do not mandate a right of access to information generated or controlled by government. ECF 26 at 17 (citing cases); 327 F. Supp. 3d at 918. Therefore, I did not reach Fusaro's vagueness contention. ECF 26 at 27.

On appeal, the Fourth Circuit vacated and remanded. Fusaro v. Cogan , 930 F.3d 241 (4th Cir. 2019). The Court determined that Fusaro stated a claim under the First Amendment, but concluded that his claims are not subject to strict scrutiny. Therefore, it instructed this Court "to conduct the balancing of interests test required by the Anderson - Burdick framework." Id. at 263. See Burdick v. Takushi , 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) ; Anderson v. Celebrezze , 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983). And, the Fourth Circuit directed this Court to consider plaintiff's vagueness challenge. Fusaro , 930 F.3d at 264.

Following the remand, the parties engaged in discovery. Thereafter, upon completion of discovery, Fusaro moved for summary judgment (ECF 53), supported by a memorandum of law (ECF 53-1) (collectively, the "Fusaro Motion"), and several exhibits. ECF 53-2 to ECF 53-12. The State filed a combined opposition and cross-motion for summary judgment (ECF 56), supported by a memorandum of law (ECF 56-1) (collectively, the "State Motion"). The State also submitted several exhibits. ECF 56-4 to ECF 56-11; ECF 58. Plaintiff's Reply is docketed at ECF 59. The State's Reply is found at ECF 60.

In addition, Fusaro has moved to file a supplemental complaint (ECF 41), supported

472 F.Supp.3d 240

by a memorandum of law. ECF 41-1 (collectively, the "Supplemental Complaint Motion"). The proposed Supplemental Complaint is docketed at ECF 41-2. The Supplement Complaint Motion is unopposed.

The proposed Supplemental Complaint is largely the same as the initial Complaint. Like the original Complaint, it contains two counts. In Count I, concerning access to the List, plaintiff alleges that E.L. § 3-506(a)(1) violates the First and Fourteenth Amendments to the Constitution. And, in Count II, concerning use of the List, Fusaro alleges that E.L. §§ 3-506(a)(1), (c) are unconstitutional because they limit use of the List to purposes related to the electoral process.

As to Count I of the Complaint, which Fusaro expressly incorporates into his Supplemental Complaint (ECF 41-2, ¶ 27), Fusaro reiterates that, "[b]y limiting access to the registered voter list to Maryland registered voters, E.L. § 3-506(a)(1) selectively advantages some political speakers", i.e. , Maryland registered voters, "and disadvantages others", i.e. , those who are not Maryland registered voters. ECF 1, ¶ 30. As to Count II, which incorporates the original Count II (ECF 41-2, ¶ 34), Fusaro claims that he "would like to share his story with Maryland citizens [about being prosecuted and acquitted for alleged violations of Maryland campaign finance laws], express his frustration with the Maryland State Prosecutor and encourage Marylanders to echo his concern by encouraging Davitt to resign." ECF 1, ¶ 2. Further, Fusaro asserts that he would like to communicate with Maryland citizens "via U.S. Mail with letters addressed to certain Maryland registered voters, drawing [names and contact information] from Maryland's registered voter list." Id. ¶ 3. And, he states that he would like to "share details of his appellate victory in this matter ... and, due to the resignation of State Prosecutor Davitt, encourage Marylanders to ‘send a message to Davitt's replacement’ to uphold his or her oath of office." ECF 41-2, ¶ 3.1.

No hearing is necessary to resolve the motions. See Local Rule 105.6. For the reasons that follow, I shall grant plaintiff's Supplemental Complaint Motion. I shall also grant the State Motion. And, I shall deny the Fusaro Motion.

II. Factual Background1


As of November 1, 2019, there were more than 4.2 million Maryland registered voters. ECF 53-7 (Defendants’ answers to discovery requests) at 4. E.L. § 3-506(a) governs dissemination of Maryland's List of registered voters. See also Code of Maryland Regulations ("COMAR") 33.03.02. The List is drawn from a statewide database known as MDVoters. See ECF 53-6 (DeMarinis Deposition) at 4, Tr. 16-17; Judicial Watch, Inc. v. Lamone , ELH-17-2006, 455 F. Supp. 3d 209, 211–12, (D. Md. Apr. 17, 2020). It includes a voter's name, address, party affiliation, and voting history. ECF 53-6 at 4, Tr. 17.2 A Maryland registered voter may obtain the List for $125 and, for an additional $3.00, the List

472 F.Supp.3d 241

is provided on a compact disc ("CD"). ECF 53-1 at 3.

The Board oversees the administration of elections in Maryland, as well as compliance with E.L. § 3-506. See ECF 20-1 at 11: ECF 44. Between January 2010 and November 2019, the Board received about 1,100 applications for the List. ECF 53-7...

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6 cases
  • Fusaro v. Howard
    • United States
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    ...summary judgment to the Maryland state officials on Fusaro's Use Provision-based free speech and vagueness claims. See Fusaro v. Howard , 472 F. Supp. 3d 234 (D. Md. 2020). For reasons explained infra , the court did not assess or review the merits of Fusaro's Access Provision-based free sp......
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