Moore v. Kobach
| Decision Date | 01 February 2019 |
| Docket Number | Case No. 18-2329-DDC-KGG |
| Parties | Scott MOORE, James Long, and Nancy Perry, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs, v. Kris KOBACH, in His Individual Capacity, and Scott Schwab, in His Official Capacity as the Secretary of State of Kansas, Defendants. |
| Court | U.S. District Court — District of Kansas |
Lauren Bonds, Pro Hac Vice, American Civil Liberties Union of Kansas, Overland Park, KS, Mark P. Johnson, Dentons US, LLP, Kansas City, MO, Zal Kotval Shroff, ACLU Foundation of Kansas, Wichita, KS, for Plaintiffs.
Stanley R. Parker, Kansas Attorney General, Stephen O. Phillips, Office of Attorney General, Topeka, KS, for Defendants.
Before the court is defendants Kris Kobach and Scott Schwab's Motion to Dismiss (Doc. 11).1 It presents two vexing questions of constitutional law: Does the Constitution recognize a right to informational privacy? And, if so, does that right prohibit public disclosure of purportedly private voter information? Regrettably, the Supreme Court has not decided either one of these questions. And though our Circuit has decided the first question, it has not addressed the second one. Consistent with Circuit precedent, the court concludes that such a right exists and, though it is a close question, the court holds that the Complaint's allegations plead a plausible claim for relief. The pages that follow explain why.
The court emphasizes that two procedural requirements play a prominent part in these conclusions. One, the questions come to the court on a motion to dismiss. The standard for surviving such a motion is a relatively forgiving one. Two, the court must assume that the "facts" pleaded in the Complaint are true, and view them in the light favoring plaintiffs. While the court applies that standard in this Order, it does not imply that plaintiffs ultimately will prove their version of the facts is true. Time will tell.
Before describing the facts that control the current motion, the court briefly summarizes the case's overarching legal issue.
The Constitution does not explicitly recognize a right to informational privacy. On this everyone agrees. But a trilogy of Supreme Court decisions has assumed, without deciding, that such a right exists. NASA v. Nelson , 562 U.S. 134, 138, 131 S.Ct. 746, 178 L.Ed.2d 667 (2011) ; Nixon v. Adm'r of Gen. Servs. , 433 U.S. 425, 457–65, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977) ; Whalen v. Roe , 429 U.S. 589, 598–99, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977). Recognizing constitutionally protected "zones of privacy," the Court has opined that this right—if it indeed exists—includes an individual's interest not to have their personal matters disclosed publicly. See Whalen , 429 U.S. at 598–99, 97 S.Ct. 869.
Whether the Constitution recognizes a right to informational privacy is a dispositive question for plaintiffs' official capacity claim. Here, plaintiffs Scott Moore, James Long, and Nancy Perry bring this lawsuit, on behalf of themselves and all others similarly situated, against defendant Kris Kobach. They have sued defendant Kobach in his individual capacity and official capacity as Kansas Secretary of State. Defendant Kobach no longer serves as Kansas Secretary of State, so, by rule, current Kansas Secretary of State Scott Schwab becomes the defendant on the official capacity claim. Fed. R. Civ. P. 25(d).
Plaintiffs' two claims take aim at the Interstate Voter Registration Crosscheck Program ("Crosscheck"), a data comparison program used to compare voter registration information among participating states. The Kansas Secretary of State's ("KSOS") Office runs Crosscheck. In Count One, the Complaint alleges that the Kansas Secretary of State—acting in his official capacity—has violated their Fourteenth Amendment right to informational privacy in two ways: (1) failing to adopt adequate safeguards for Crosscheck; and (2) disclosing part of plaintiffs' Social Security numbers and other personally identifiable information. And, because plaintiffs allege these constitutional violations are continuing ones, they seek injunctive and declaratory relief requiring the KSOS to stop exchanging plaintiffs' voter data until the KSOS can ensure their information will not be subject to public disclosure. In Count Two, plaintiffs allege that defendant Kobach—in his individual capacity—has violated the Kansas Public Records Act ("KPRA"). Plaintiffs seek civil penalties on their KPRA claim.
Defendants filed a Motion to Dismiss both claims under Fed. R. Civ. P. 12(b)(6). Doc. 11. Plaintiffs have filed a Response in Opposition. Doc. 14. And, defendants have submitted a Reply. Doc. 15. After considering the parties' arguments the court denies the Motion to Dismiss for reasons explained, below.
As referenced above, the court must accept the facts asserted in the Complaint as true, and view them in the light most favorable to plaintiffs. Burnett v. Mortg. Elec. Registration Sys., Inc. , 706 F.3d 1231, 1235 (10th Cir. 2013) (citing Smith v. United States , 561 F.3d 1090, 1098 (10th Cir. 2009) ). The following facts thus come from plaintiffs' Complaint (Doc. 1).
Former Kansas Secretary of State Ron Thornburg launched Crosscheck in 2005 to help Kansas and neighboring states compare voter data and detect double registrants. The KSOS Office administers Crosscheck by collecting voter registration information from participant states and cross-referencing lists for potential matches. The KSOS then generates reports listing potential duplicate records for each participating state.
Crosscheck uses a two-point match criteria, identifying registered voters who share the same first name, last name, and date of birth. Participating states also are asked to provide additional voter data, including part of the Social Security number, voter status, middle name, voter identification number, mailing address, county, date of registration, and whether the voter cast a ballot in the most recent election. In 2017, at least 10 states did not provide partial Social Security numbers for the KSOS to use to narrow results of the program's cross-checking.
Crosscheck participants principally share data through a File Transfer Protocol ("FTP") website, which the Arkansas Secretary of State's Office previously hosted. The KSOS now hosts this site. Participants share data with the KSOS by uploading their voter rolls to the FTP site. Specifically, each participant state extracts voter data from its registration rolls and formats that information to coincide with the formatting used by Crosscheck for data. The participating states then encrypt their files using a free encryption program and upload the data to the FTP site. Before 2017, defendant Kobach used the AxCrypt software to encrypt files; plaintiffs allege that 7-zip, another free encryption program, is now used.
Participating states are asked to upload their data each January. Once they upload their extraction files, the KSOS pulls the files from the FTP site, runs a comparison of each state's voter information, and uploads result files to the FTP site. The KSOS then notifies each state that its results file is available and emails a decryption passphrase enabling the state to open its results file. The results file contains a potential match list, which identifies voters registered in that state who share a name and date of birth with a voter in another state. Once states have received their potential match lists, they may contact the other state where the voter, at least potentially, is double registered. When processing potential match results, the KSOS advises participating states to procure the voter's middle name, a partial Social Security number, and signature to help determine whether the voter has registered to vote in more than one state.
Each state participating in Crosscheck is directed to inform the KSOS about its preferred method for communicating information requests. While the Crosscheck participation guide cautions against transmitting personally identifiable information about voting registrants via e-mail, no provision of the Memorandum of Understanding ("MOU") restricts unsecured transmissions. Plaintiffs allege that the MOU contains the only requirements governing states' participation in Crosscheck.
As a participant in Crosscheck, the KSOS analyzes potential matches by comparing secondary data about voters. Secondary data includes voters' partial Social Security numbers and middle initials. Once the KSOS narrows the number of potential matches, it submits information requests to the other state where double voting may have occurred. The KSOS provides the name and date of birth of potential match voters to the other participating states and requests documentation about voting history and the voter's signature in the other state. Plaintiffs allege that the KSOS requests states to supply voter signatures as unencrypted email attachments. Plaintiffs also allege that the KSOS lacks a method to narrow potential matches when the other participating state does not provide a partial Social Security number or a middle initial. So, plaintiffs contend, when a state does not include partial Social Security numbers or middle initials in its extraction file, the KSOS maintains a practice of sending full potential match lists in unencrypted email attachments to the other participant state. These full match lists include partial Social Security numbers and other personal identifying information about hundreds of voters. About half the states participating in Crosscheck provide partial Social Security numbers.
From 2005 to 2011, Crosscheck had just four participating states: Kansas, Iowa, Missouri, and Nebraska. When defendant Kobach took office in 2011, he pledged...
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