Fusaro v. Howard

Decision Date19 November 2021
Docket NumberNo. 20-1879,20-1879
Parties Dennis FUSARO, Plaintiff – Appellant, v. Charlton T. HOWARD, III, Maryland State Prosecutor, in his official capacity; Michael R. Cogan, Maryland State Board of Elections; Vice-Chairman Patrick J. Hogan, Maryland State Board of Elections; William G. Voelp, Maryland State Board of Elections; Member Kelley A. Howells, Maryland State Board of Elections; Malcolm L. Funn, Maryland State Board of Elections, Defendants – Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Stephen Ralph Klein, BARR & KLEIN PLLC, Washington, D.C., for Appellant. Andrea William Trento, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. ON BRIEF: Brian E. Frosh, Attorney General, Adam D. Snyder, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees

Before GREGORY, Chief Judge, and KING and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge King wrote the opinion, in which Chief Judge Gregory and Judge Floyd joined.

KING, Circuit Judge

Plaintiff Dennis Fusaro appeals from the district court's rejection of his constitutional claims concerning § 3-506 of Maryland's Election Law. That statute provides, in relevant part, that a list of Maryland registered voters (the "List") may be given to an applicant who is himself a registered Maryland voter, see Md. Code, Elec. Law § 3-506(a)(1) (the "Access Provision"), so long as the applicant attests that he will use the List for purposes that are "related to the electoral process," id. § 3-506(a)(1)(ii)(2) (the "Use Provision"). In 2017, Fusaro filed suit in the District of Maryland against various Maryland state officials. See Fusaro v. Howard , No. 1:17-cv-03582 (D. Md. Dec. 14, 2017), ECF No. 1 (the "Complaint"). In effect, Fusaro asserted three constitutional claims: (1) the Access Provision contravenes the Free Speech Clause of the First Amendment; (2) the Use Provision also violates the Free Speech Clause; and (3) the Use Provision is unconstitutionally vague under the Free Speech Clause and the Fourteenth Amendment's Due Process Clause. Each claim was presented both facially and as-applied.

In 2019, after the district court dismissed Fusaro's Complaint for failure to state a claim for relief cognizable under the First Amendment, Fusaro appealed. By decision of July 12, 2019, we vacated the district court's dismissal of the Complaint. See Fusaro v. Cogan , 930 F.3d 241, 245 (4th Cir. 2019). In remanding for further proceedings, we requested the court to analyze Fusaro's free speech claims under the standard articulated by the Supreme Court in Anderson v. Celebrezze , 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983), and Burdick v. Takushi , 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992). Moreover, we requested that the court reach and resolve the merits of Fusaro's vagueness claim.

On remand, in an opinion filed last year, the district court awarded 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 speech claim. In this second appeal, Fusaro has abandoned that claim, leaving only the two claims contesting the Use Provision. With respect to the free speech claim, Fusaro asserts that the Use Provision should be subjected to strict scrutiny review, and, in any event, it fails to pass muster under the Anderson - Burdick balancing test. Once more, Fusaro also maintains that the Use Provision is unconstitutionally vague. As explained herein, however, we affirm the district court's judgment.


As more fully detailed in our earlier Fusaro decision, see 930 F.3d at 244-47, Fusaro is a resident of and registered voter in the Commonwealth of Virginia. Fusaro has worked on regional and national political campaigns, and he intends to "continue his involvement in elections and political advocacy," including in Maryland. See Complaint ¶ 16. In 2014, Fusaro consulted for a successful county-level campaign in Maryland. In connection therewith, Fusaro was criminally charged in 2016 by the Maryland State Prosecutor for violating certain misdemeanor provisions of Maryland's Election Law.1

In August 2017, Fusaro was acquitted by a jury in Anne Arundel County of all charges. As a result of that prosecution, Fusaro wanted to send a letter expressing his displeasure with then-State Prosecutor Emmett C. Davitt, "shar[ing] his story with Maryland citizens," and urging them to seek Davitt's resignation. See Complaint ¶ 2. To facilitate that letter writing campaign against Davitt, Fusaro sought a copy of the List made available under § 3-506 from the Maryland State Board of Elections (the "State Board").2 Fusaro planned to use the List to circulate the letter criticizing Davitt, notwithstanding that Davitt holds an appointed — rather than elected — office. The letter that Fusaro intended to circulate acknowledged that "Davitt was appointed" State Prosecutor. See J.A. 20.3

Fusaro thereafter applied for a copy of the List, but his application was rejected by the State Board because he was not a registered Maryland voter, as required by the Access Provision. The statutory provisions concerning the List are set forth in § 3-506 :

(a) (1) A copy of a list of registered voters shall be provided to a Maryland registered voter on receipt of:
(i) a written application; and
(ii) a statement, signed under oath, that the list is not intended to be used for:
1. commercial solicitation; or
2. any other purpose not related to the electoral process.
* * *
(c) 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 and, on conviction, is subject to the penalties under Title 16 [of the Election Law].

See Md. Code, Elec. Law § 3-506(a), (c).4

Notably, § 3-505 of Maryland's Election Law makes publicly available the same voter registration information contained within the List. See Md. Code, Elec. Law § 3-505(b)(1). That information is "open to public inspection" at the State Board's local offices in each county. Id. Those voter registration records can also be removed from the local State Board office "on order of a court" or "for temporary removal solely for purposes of data processing." Id. § 3-505(b)(2)(ii). Additionally, under § 3-505, there are no fees associated with obtaining that information, nor are there any statutory restrictions limiting use thereof to purposes that are "related to the electoral process."


In December 2017, Fusaro filed suit in the District of Maryland against Davitt and members of the State Board (collectively, the "State").5 The Complaint asserted the aforementioned free speech and vagueness claims, with each claim pursued both facially and as-applied.6 As exhibits to the Complaint, Fusaro submitted his letter criticizing Davitt, his rejected application for the List, and his correspondence with the State Board.

In September 2018, the district court granted the State's motion to dismiss the Complaint for failure to state a claim for relief cognizable under the First Amendment. In so ruling, the court rejected both of Fusaro's free speech claims on the ground that he had no First Amendment right to the List, insofar as § 3-506 merely regulated access to a record that was created and maintained by the State Board. At that time, the court did not directly address or reach the merits of Fusaro's vagueness claim.

In our Fusaro decision of July 12, 2019, we disagreed with the district court and concluded that both the Access and Use Provisions implicate the First Amendment right to free speech. See 930 F.3d at 256. As such, we proceeded to identify the correct level of scrutiny applicable to Fusaro's free speech claims. Id. In so doing, we determined that the Access and Use Provisions are subject to the standard set forth in the Supreme Court's Anderson and Burdick decisions. Id. at 258. Pursuant thereto, "a court must first determine whether the protected rights are severely burdened. If so, strict scrutiny applies." Id. at 257-58 (quoting McLaughlin v. N.C. Bd. of Elections , 65 F.3d 1215, 1221 (4th Cir. 1995) ). If the protected rights are not severely burdened, however, "the court must balance the character and magnitude of the burdens imposed against the extent to which the regulations advance the state's interests in ensuring that order, rather than chaos, is to accompany the democratic processes." Id. at 258 (quoting McLaughlin , 65 F.3d at 1221 ).

Because it was clear to us that the Access and Use Provisions do not severely burden First Amendment rights, we were "satisfied that the resolution of Fusaro's claims turn[ed]" not on strict scrutiny review, but rather "on the balancing of interests described in the Anderson - Burdick framework's subsequent steps." See Fusaro , 930 F.3d at 259. Consequently, we requested that on remand the district court apply the Anderson - Burdick balancing test to assess Fusaro's free speech claims. Id. at 263-64. We also requested the court to resolve the merits of Fusaro's vagueness claim. Id. at 264.


The parties thereafter initiated and conducted discovery in the remand proceedings. At that time, Fusaro moved pursuant to Federal Rule of Civil Procedure 15(d) for leave to file a supplemental complaint. See Fusaro v. Howard , No. 1:17-cv-03582 (D. Md. Sept. 10, 2019), ECF No. 41 (the "Supplemental Complaint"). Pursuant to Federal Rules of Civil Procedure 10(b) and 10(c), the Supplemental Complaint incorporated all relevant paragraphs of the Complaint, including Fusaro's acknowledgement that his letter concerning the State Prosecutor "literally cannot ... be reasonably interpreted to relate to elections or to the electoral process." See Comp...

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