Project Vote/Voting For Am. Inc. v. Long

• Court: U.S. District Court — Eastern District of Virginia
• Writing for the Court: REBECCA BEACH SMITH, District Judge.
• Citation: Project Vote/Voting For Am. Inc. v. Long, 752 F.Supp.2d 697 (E.D. Va. 2010)
• Decision Date: 29 October 2010
• Docket Number: Civil No. 2:10cv75.
• Parties: PROJECT VOTE/VOTING FOR AMERICA, INC., Plaintiff,v.Elisa LONG, in her Official Capacity as General Registrar of Norfolk, Virginia, and Nancy Rodrigues, in her Official Capacity as Secretary, State Board of Elections, Defendants.

752 F.Supp.2d 697

PROJECT VOTE/VOTING FOR AMERICA, INC., Plaintiff,

v.Elisa LONG, in her Official Capacity as General Registrar of Norfolk, Virginia, and Nancy Rodrigues, in her Official Capacity as Secretary, State Board of Elections, Defendants.

Civil No. 2:10cv75.

United States District Court, E.D. Virginia,Norfolk Division.

Oct. 29, 2010.

Augustine Martin Ripa, Jason Gassan Idilbi, Ryan Morland Malone, David O. Stewart, Douglas Harry Hallward–Driemeier, Ropes & Gray LLP, Bradley E. Heard, Advancement Project, Yolanda Sheffield, Project Vote for America, Inc., Washington, DC, for Plaintiff.Jeff Wayne Rosen, Pender & Coward PC, Virginia Beach, VA, Stephen Michael Hall, Office of the Attorney General, Richmond, VA, for Defendants.

OPINION

REBECCA BEACH SMITH, District Judge.

On February 16, 2010, the plaintiff, Project Vote/Voting For America, Inc. (“Project Vote”), filed a Complaint for Declaratory and Injunctive Relief (“Complaint”) against the defendants, Elisa Long (“Long”) and Nancy Rodrigues (“Rodrigues”). On March 26, 2010, the defendants filed a Motion to Dismiss the Complaint (“Motion”), pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). On April 9, 2010, the plaintiff responded (“Response”), and the defendants replied (“Reply”) on April 15, 2010. The Motion is now ripe for review.

I. Factual Background

Project Vote is a nonprofit 501(c)(3) organization existing under the laws of Louisiana and having its principal office in the District of Columbia. (Compl. ¶ 4); see 26 U.S.C. § 501(c)(3). It endeavors to increase voter registration and participation among low-income, minority, and younger voters, while “working to enforce and expand public policies and procedures that encourage full participation in elections.” (Compl. ¶ 4.) Defendant Elisa Long is the General Registrar of Norfolk, Virginia, and is responsible for

accepting and processing voter registration applications and requests for transfer or change of address; maintaining the official registration records for Norfolk, Virginia; preserving the written applications of all persons who are registered; and maintaining accurate and current registration records and complying with the applicable requirements for the transfer, inactivation, and cancellation of voter registrations. ( Id. ¶ 5 (citing Va.Code Ann. § 24.2–114(6), (8), and (12)).) Defendant Nancy Rodrigues, as Secretary of the Virginia State Board of Elections, is responsible for overseeing the duties of the State Board of Elections, which supervises the city electoral boards and registrars in conducting elections, and creates rules, regulations, and instructions designed to bring local electoral boards in compliance with elections laws. ( Id. ¶ 6 (citing Va.Code Ann. §§ 24.2–103 and 404.1).) Rodrigues is also responsible for the administration of the Commonwealth's responsibilities under the National Voter Registration Act (“NVRA”), 42 U.S.C. § 1973gg et seq. (Compl. ¶ 6.)

Through its ongoing voter protection efforts in Virginia, Project Vote learned that several students at Norfolk State University, a historically African–American public university located in Norfolk, Virginia, had their voter registration applications rejected by Long's office prior to the November 2008, primary and general elections. ( Id. ¶ 14.) Suspicious that these students' applications were incorrectly rejected by the Norfolk General Registrar and that eligible voters may have been prevented or discouraged from voting in the 2008 general election, Advancement Project, a national civil and voting rights organization with which Project Vote works, wrote an email request to Long on May 11, 2009, pursuant to 42 U.S.C. § 1973gg–6(i) (hereinafter referred to as the “Public Disclosure Provision”),¹ to

‘make available for inspection and copying the completed voter registration applications of any individual who timely submitted an application at any time from January 1, 2008, through October 31, 2008, who was not registered to vote in time for the November 4, 2008 general election,’ and also other documents, ‘such as documents identifying the reasons the applications were rejected.’(Compl. ¶ 15.) On May 13, 2009, Long responded to the email stating that she would not permit inspection or copying of these records (collectively referred to as the “Requested Records”),² pursuant to Va.Code § 24.2–444, which purportedly forbids disclosure of the Requested Records.³ (Compl. ¶ 17.) On that same date, Martha Brisette, an attorney and policy analyst with the Virginia State Board of Elections, sent Advancement Project an email agreeing with Long's decision. ( Id. ¶ 18.)

On May 15, 2009, representatives from Advancement Project and Project Vote traveled to Long's Norfolk office, again seeking access to the Requested Records, and were again denied such access. ( Id. ¶ 19.) On June 22, 2009, Advancement Project and Project Vote wrote to Rodrigues, purportedly pursuant to NVRA § 11(b), 42 U.S.C. § 1973gg–9(b), advising her that they believed Long's denial was in violation of the Public Disclosure Provision of the NVRA. (Compl. ¶ 20.) Advancement Project and Project Vote requested that Rodrigues

issue a written directive to all General Registrars and state election officials advising them of their obligation under the NVRA to permit inspection and copying of ‘all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters,’ including copies of completed voter registration applications.

( Id.) (emphasis added).⁴ On that same date, Martha Brisette responded to that request, stating that the State Board of Elections, at its July 10, 2009, meeting, had requested an informal opinion of the Attorney General of Virginia on this matter. ( Id. ¶ 21.) On September 25, 2009, Ms. Brisette forwarded Advancement Project and Project Vote an informal opinion, dated September 23, 2009, from Stephanie Hamlett (“Hamlett Opinion”), Senior Counsel to the Attorney General. ( Id. ¶ 22.) Ms. Hamlett concluded that “ ‘the completed voter registration application of any individual is not a part of the record of the implementation of programs and activities conducted for the purposes of ensuring the accuracy and currency of official lists of eligible voters covered by [the Public Disclosure Provision].’ ” ( Id. (quoting Hamlett Opinion at 1).)

Accordingly, the plaintiff has filed the instant Complaint, alleging that the actions of the defendants are in violation of the NVRA's Public Disclosure Provision. Specifically, the plaintiff claims that the NVRA and the Public Disclosure Provision require that the Requested Records be available to the public for inspection because they are records “ ‘concerning the implementation of programs or activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters.’ ” ( Id. ¶ 29 (quoting 42 U.S.C. § 1973gg–6(i)).) Additionally, to the extent that the Virginia statute limits the availability of the Requested Records to the public for inspection and photocopying, it is superseded by the NVRA, pursuant to the Supremacy Clause of the United States Constitution. Therefore, the plaintiff asks the court to 1) declare that the defendants are in violation of the NVRA; 2) declare that the NVRA preempts the Virginia statute, and any other Virginia law or regulation stating the same (hereinafter referred to as the “preemption claim”); 3) permanently enjoin the defendants' denial of access to the Requested Records; and 4) award Project Vote the costs incurred in pursuing this action, as authorized by 42 U.S.C. § 1973gg–9(c).

In the Motion, the defendants assert two grounds for dismissal of the Complaint. First, the defendants contend, pursuant to Federal Rule of Civil Procedure 12(b)(1), that this court does not have subject-matter jurisdiction in this case because the plaintiff does not have individual or representational standing to sue under the NVRA.⁵ The defendants contend that the plaintiff has not suffered an “injury in fact” and, thus, cannot state a valid claim. Second, the defendants contend, pursuant to Federal Rule of Civil Procedure 12(b)(6), that the Requested Records are not records subject to the Public Disclosure Provision of the NVRA, and, thus, none of the plaintiff's claims are plausible. Moreover, they contend that the Virginia statute is, therefore, not in conflict with the NVRA, and the plaintiff's preemption claim, specifically, is implausible and must be dismissed. The court will address each ground, in turn, below.

II. Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1)

The defendants contend that this court lacks subject matter jurisdiction because Project Vote's claim that potentially qualified Norfolk State University students were denied voter registration does not amount to an “injury-in-fact,” which could support standing. ( See Mem. in Supp. Of Motion at 7–9.) Instead, the defendants contend that such a claim only shows that Project Vote's “ideals and social policy interests” have been harmed, which are insufficient grounds for standing. ( Id.) However, for the reasons detailed below, the court FINDS that the plaintiff has sufficiently alleged an informational injury, giving the plaintiff standing in this case. Therefore, the court DENIES the defendants' Motion to Dismiss for lack of standing.

A. General Standard of Review

“Standing is a threshold jurisdictional question which ensures that a suit is a case or controversy appropriate for the exercise of the courts' judicial powers under the Constitution of the United States.” Pye v. United States, 269 F.3d 459, 466 (4th Cir.2001). A defendant may question a plaintiff's standing by either asserting that the complaint fails to allege sufficient facts to show it has standing or, that factual allegations cited by the plaintiff in support of standing are untrue. Adams v. Bain,...