Judicial Watch, Inc. v. Lamone

• Decision Date: 17 April 2020
• Docket Number: Civil Action No. ELH-17-2006
• Citation: 455 F.Supp.3d 209
• Parties: JUDICIAL WATCH, INC., Plaintiff, v. Linda LAMONE, et al., Defendants.
• Court: U.S. District Court — District of Maryland

455 F.Supp.3d 209

JUDICIAL WATCH, INC., Plaintiff,

v.Linda LAMONE, et al., Defendants.

Civil Action No. ELH-17-2006

United States District Court, D. Maryland.

Signed April 17, 2020

Eric William Payne Lee, Ramona R. Cotca, Robert D. Popper, Judicial Watch, Inc., Washington, DC, H. Christopher Coates, Pro Hac Vice, Law Offices of H. Christopher Coates, Charleston, SC, for Plaintiff.

Robert A. Scott, Andrea William Trento, Office of the Attorney General, Baltimore, MD, for Defendants.

MEMORANDUM OPINION

Ellen Lipton Hollander, United States District Judge

Plaintiff Judicial Watch, Inc. ("Judicial Watch"), a "not-for-profit, educational organization" (ECF 1, ¶ 5), sued a host of Maryland officials to compel compliance with Section 8(i) of the National Voter Registration Act of 1993 ("NVRA" or the "Act"), codified, as amended, at 52 U.S.C. § 20507(i). See ECF 1 ("Complaint"). In particular, Judicial Watch seeks access to voter registration lists for Montgomery County, Maryland, to include voter dates of birth.

Defendants include Linda Lamone, the Maryland Administrator of Elections; David McManus, Jr., then the Chairman of the Maryland State Board of Elections ("SBE"); Patrick Hogan, the Vice-Chairman of the SBE; Jared DeMarinis, the Public Information Act Officer and Director of the Division of Candidacy and Campaign Finance for SBE; and SBE Members Michael Cogan, Kelley Howells, and Gloria Lawlah. Id.¹ They were sued only in their official capacities, pursuant to 52 U.S.C. § 20510(b). I shall sometimes refer to the defendants collectively as the "State."

The parties filed cross motions for summary judgment. ECF 43 (the "Plaintiff's Motion"); ECF 49 (the "Defendants’ Motion"). The motions, which were amply briefed, were supported by numerous exhibits. By Memorandum Opinion (ECF 54) and Order (ECF 55) of August 8, 2019, I determined that Judicial Watch is entitled to the "voter list for Montgomery County that includes fields indicating names, home address, most recent voter activity, and active or inactive status." ECF 55 at 1; see also ECF 59, Judicial Watch, Inc. v. Lamone , 399 F. Supp. 3d 425 (D. Md. 2019).² However, I did not resolve the issue of whether the State was required to disclose the voters’ dates of birth. ECF 59 at 31. Instead, I asked the parties to brief the issue "more fully," to include consideration of the Fourth Circuit's decision in Project Vote/Voting for America, Inc. v. Long , 682 F.3d 331 (4th Cir. 2012). Id.

Defendants’ supplemental submission is docketed at ECF 60, and is supported by two exhibits. ECF 60-1 to ECF 60-2. Plaintiff's supplement is at ECF 61, and is supported by three exhibits. ECF 61-1 to ECF 61-3. Both sides also replied. ECF 62 (defendants); ECF 63 (plaintiff). And, plaintiff submitted an additional exhibit. ECF 63-1.

No hearing is necessary to resolve the remaining issue. See Local Rules 105.6. For the reasons that follow, I shall require the State to disclose the voter birth dates.

I. Factual and Procedural Background³

Under Maryland law, the SBE "shall manage and supervise elections in the State and ensure compliance with the requirements of [State law] and any applicable federal law...." Md. Code (2017 Repl. Vol., 2018 Supp.) § 2-102(a) of the Election Law Article ("E.L."). Among other things, the SBE shall "adopt regulations to implement its powers and duties"; appoint a State Administrator; and "prescribe all forms required under this article." E.L. §§ 2-102(b)(4), (b)(6), (b)(11). Lamone, as Administrator of the SBE, is the "Chief State election official ... responsible for coordination of State responsibilities" under the NVRA. 52 U.S.C. § 20509 ; E.L. § 2-103(b)(8).

Maryland maintains a statewide database, known as MDVOTERS, containing voter registration records. ECF 49-8 (Declaration of Mary Cramer Wagner), ¶4; see also ECF 43-3 (Deposition of Mary Cramer Wagner) at 6, Tr. 26-27; ECF 43-4 (Deposition of Janet Smith) at 13, Tr. 71; ECF 59 at 6. Notably, a voter's registration form requires his or her full birthdate, but only the last four digits of a social security number.⁴

The voter data compiled by the State includes the voter's personal information, as well as information concerning the voter's registration status. ECF 49-8, ¶ 7. The information about voters is organized into "coded fields" or categories of information. Id. The fields include name, date of birth, and address. See ECF 43-4 at 13, Tr. 71. Notably, Maryland maintains these records "dating back to 2005...." ECF 49-8, ¶ 9.

E.L. § 3-506(a)(2) states, in part: "In consultation with the local boards, the State Board shall adopt regulations that specify ... the information to be included on a [voter] list." E.L. § 3-506(a)(2)(iv). Pursuant to Code of Maryland Regulations ("COMAR") 33.03.02.03B, an "application" for a voter registration list "shall be made in writing, in the form required by the State Administrator." COMAR 33.03.02.03(C) states, in part, that the "application form shall provide a listing of: ... (2) Information options available, for example, name, address, party affiliation, sex, date of birth , voting history[.]" (Emphasis added). The SBE utilizes a standardized form for third parties to request voter registration lists (the "Application"). ECF 49-7; ECF 49-1 at 38; see also ECF 59 at 24.⁵

According to the State, since August 2017 the Administrator no longer includes date of birth as an available field on the Application. ECF 60 at 2-3; see also ECF 49-7; ECF 53-1. In a Declaration provided by Lamone (ECF 53-1), she explains that, because of complaints from Maryland voters concerned about disclosure of "sensitive information," in July 2017 she directed her staff to remove date of birth as a field on the Application. Id. ¶ 3. The revised Application form went into effect on August 9, 2017. Id. ¶ 4. Thus, the State asserts that since then, birth date information has not been produced in response to an Application. ECF 60 at 13.

On April 11, 2017, i.e. , before the change in the Application, Thomas Fitton, President of Judicial Watch, sent an email to Lamone, as well as the officers and members of both the SBE and the Montgomery County Board of Elections. ECF 1, ¶ 11. The email included a letter to McManus dated April 11, 2017, on which Hogan, Cogan, Howells, Lawlah, Lamone, Shalleck, Khozeimeh, Keefe, Vincent, Naimon, Popper, and Nikki Charlson, the Deputy State Administrator of the SBE, were copied. ECF 1-1 ("Notice Letter").⁶

The Notice Letter stated, in part, ECF 1-1 at 1-7 (emphasis added):

Dear Chairman McManus:

We write to bring your attention to violations of Section 8 of the National Voter Registration Act ("NVRA") in Montgomery County, Maryland. From public records obtained, Montgomery County has more total registered voters than adult citizens over the age of 18 as calculated by the U.S. Census Bureau's 2011-2015 American Community Survey. This is strong circumstantial evidence that Montgomery County is not conducting reasonable voter registration record maintenance as mandated under the NVRA.

* * *

This letter serves as statutory notice that Judicial Watch will bring a lawsuit against your office if you do not take specific actions to correct these violations of Section 8 within 90 days. In addition, by this letter we are asking you to produce certain records to us which you are required to make available under Section 8(i) of the NVRA.

* * *

You are receiving this letter because you are the designated chief state election official under the NVRA.

* * *

In order to avoid litigation, we hope you will promptly initiate efforts to comply with Section 8 so that no lawsuit will be necessary. We ask you to please respond to this letter in writing no later than 45 days from today informing us of the compliance steps you are taking. Specifically, we ask you to: (1) conduct or implement a systematic, uniform, nondiscriminatory program to remove from the list of eligible voters the names of persons who have become ineligible to vote by reason of a change in residence; and (2) conduct or implement additional routine measures to remove from the list of eligible voters the names of persons who have become ineligible to vote by reason of death, change in residence, or a disqualifying criminal conviction, and [ (3) ]to remove noncitizens who have registered to vote unlawfully.

* * *

[P]ursuant to your obligations under the NVRA, please make available to us all pertinent records concerning "the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency" of Maryland's official eligible voter lists during the past 2 years. Please include these records with your response to this letter. These records should include, but are not limited to:

1. Copies of the most recent voter registration database from Montgomery County, Maryland, including fields indicating name, date of birth, home address, most recent voter activity, and active or inactive status.

2. Copies of all email or other communications internal to the office of the Maryland State Board of Elections, including any of its divisions, bureaus, offices, third party agents, or contractors, (hereinafter, collectively "State Board of Elections") relating to the maintenance of accurate and current voter rolls.

3. Copies of all email or other communications between the State Board of Elections and all Maryland County Voter Registration Officials concerning:

a. Instructions to the counties concerning their general list maintenance practices and obligations; b. Instructions to the counties for the removal of specific noncitizens and deceased, relocated, or convicted persons identified by the State Board of Elections; and

c. Notices to the counties concerning any failure to comply with their voter list maintenance obligations under Maryland's program.

4. Copies of all email or other communications between the State Board of Elections and the Maryland State Department of Health, the Maryland State Department of

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