Pub. Interest Legal Found. v. Chapman

• Decision Date: 31 March 2022
• Docket Number: CIVIL ACTION NO. 1:19-CV-622
• Citation: 595 F.Supp.3d 296
• Parties: The PUBLIC INTEREST LEGAL FOUNDATION, Plaintiff v. Leigh M. CHAPMAN, Acting Secretary of the Commonwealth of Pennsylvania, and Jonathan M. Marks, Deputy Secretary for Elections and Commissions, Defendants
• Court: U.S. District Court — Middle District of Pennsylvania

595 F.Supp.3d 296

The PUBLIC INTEREST LEGAL FOUNDATION, Plaintiff

v.Leigh M. CHAPMAN, Acting Secretary of the Commonwealth of Pennsylvania,¹ and Jonathan M. Marks, Deputy Secretary for Elections and Commissions, Defendants

CIVIL ACTION NO. 1:19-CV-622

United States District Court, M.D. Pennsylvania.

Signed March 31, 2022

Linda Ann Kerns, Law Offices of Linda Ann Kerns, LLC, Philadelphia, PA, Noel H. Johnson, Pro Hac Vice, Kaylan Phillips, Pro Hac Vice, Public Interest Legal Foundation, Indianapolis, IN, for Plaintiff.

Daniel T. Brier, Donna A. Walsh, Myers Brier & Kelly, LLP, Scranton, PA, for Defendants.

Harmeet Dhillon, Pro Hac Vice, Dhillon Law Group, Inc., San Francisco, CA, for Amicus Republican National Committee.

MEMORANDUM

Christopher C. Conner, United States District Judge

Plaintiff, the Public Interest Legal Foundation ("PILF"), seeks production of voter registration records under the National Voter Registration Act ("NVRA"), 52 U.S.C. § 20507. PILF claims defendants Leigh M. Chapman, Acting Secretary of the Commonwealth of Pennsylvania, and Jonathan M. Marks, Deputy Secretary of Elections and Commissions, have failed to satisfy the Commonwealth's disclosure obligations under NVRA. Both parties move for summary judgment under Federal Rule of Civil Procedure 56. We will grant in part and deny in part the motions.

I. Factual Background & Procedural History ²

PILF is a public interest organization concerned with, among other things, "the integrity of elections nationwide." (See Doc. 66 ¶ 3). Leigh M. Chapman, Acting Secretary of the Commonwealth of Pennsylvania, is tasked with administering voter registration in Pennsylvania. (See id. ¶ 4). Jonathan Marks is Deputy Secretary for Elections and Commissions at the Pennsylvania Department of State. (See id. ¶ 5). As Chapman and Marks, sued in their official capacities, are avatars for the government of the Commonwealth of Pennsylvania, we will refer to them as "the Commonwealth."

In late 2017, the Commonwealth publicly admitted the existence of a "glitch" in a computer system used by the Pennsylvania Department of Transportation ("PennDOT"). This glitch permitted non-United States citizens applying for or renewing a driver's license to register to vote in the Commonwealth. (See id. ¶¶ 6-7; see also Doc. 64-1 ¶ 7). PennDOT's glitch quickly became a public scandal generating extensive media coverage and investigatory hearings in the Pennsylvania legislature. (See Doc. 66 ¶¶ 6-7, 9 n.2; see also Docs. 66-2, 66-3). As the precursor to remedial action, the Commonwealth undertook a series of analyses to ascertain the extent to which the glitch allowed noncitizens onto the Commonwealth's voter registration lists. (See Doc. 66 ¶¶ 49-65).

A. Initial Analysis

The Commonwealth conducted the first analysis ("the initial analysis")³ in September 2017 by comparing PennDOT's motor vehicle records with the Statewide Uniform Registry of Electors ("SURE"), a computerized compilation of each county's voter registration list. (See id. ¶ 23). The SURE database includes not only the registrant's voter registration status but also personal information about the voter and their voting history.⁴ (See id. ¶¶ 24-26, 32). Through the SURE database, the Commonwealth's counties maintain their voter registration lists, adding, updating, and cancelling registrations. (See id. ¶ 24; see also Marks Dep. 52:12-19, 58:13-59:23). When county election officials cancel a voter registration, the SURE database records the cancellation as well as the reason for cancellation. (See Doc. 66 ¶ 28).

The initial analysis compared the SURE database of registered voters against PennDOT's database of driver's license holders flagged with "INS indicators." (See id. ¶¶ 49-51; Doc. 64-1 ¶¶ 12-13). How INS indicators work within PennDOT's record-keeping system is not entirely clear in the record before the court, but they appear to signify merely that the license holder was, at some point in their life, something other than a United States citizen. (See Doc. 64-1 ¶ 13; Marks Dep. 169:7-172:23). The initial analysis identified approximately 100,000 registered voters "who may potentially be non-citizens or may have been non-citizens at some point in time." (See Doc. 64-1 ¶ 13; Doc. 66 ¶ 51).

B. Statewide Analysis

In addition to the initial analysis, the Commonwealth searched the SURE database for records related to any voter registrations cancelled by a county simply because the registrant was not a citizen ("the statewide analysis"). (See Doc. 66 ¶ 55). The statewide analysis produced voting registration records for 1,160 individuals. (See id. ¶¶ 55, 59). However, the 1,160 records reflected only those registrants who self-reported their status as noncitizens and voluntarily requested their voter registration be cancelled. (See id. ¶ 58). Of the 1,160 noncitizen registrants, 248 voted in at least one election prior to cancelling their registration.⁵ (See id. ¶¶ 60-61).

C. Noncitizen Matching Analysis

Following the statewide analysis, the Commonwealth consulted with the Office of Chief Counsel regarding appropriate action in light of the results of the analysis. (See id. ¶ 15; Doc. 64-3 ¶ 6). The Office of Chief Counsel engaged outside counsel who, in turn, retained an expert to assist in addressing the problem. (See Doc. 64-1 ¶¶ 16-17; Marks Dep. 141:6-11). The expert analyzed the Commonwealth's voting records, including the SURE database, to identify registrants whose eligibility to vote required additional scrutiny in terms of citizenship ("the noncitizen matching analysis"). (See Doc. 66 ¶¶ 62-65). Based on the expert's analysis, the Commonwealth mailed 7,702 letters to registrants reminding them of the eligibility requirements for voting and 11,198 letters requesting registrants affirm their eligibility to vote. (See Doc. 66 ¶¶ 64-70; Doc. 64-1 ¶¶ 18-22). The Commonwealth retained all responses confirming citizenship, forwarded requests for cancellation from noncitizens to the appropriate county, and notified counties of the need to investigate eligibility of the nonrespondents. (See Doc. 66 ¶¶ 71-74; see also Doc. 64-1 ¶ 22).

D. PILF's Request

In response to publicity surrounding the glitch, PILF sent Marks a letter on October 23, 2017, requesting the Bureau of Commissions, Elections and Legislation ("the Bureau") provide PILF copies of or the ability to inspect four categories of records pursuant to NVRA. (See Doc. 66 ¶¶ 8-9; Doc. 63 ¶ 1). PILF sought:

1. Documents regarding all registrants who were identified as potentially not satisfying the citizenship requirements for registration from any official information source, including information obtained from the various agencies within the U.S. Department of Homeland Security and [PennDOT] since January 1, 2006. This request extends to all documents that provide the name of the registrant, the voting history of such registrant, the nature and content of any notice sent to the registrant, including the date of the notice, the response (if any) of the registrant, and actions taken regarding the registrant's registration (if any) and the date of the action.... This request includes all voter records that were referenced in recent news media reports regarding individuals improperly exposed to registration prompts due to a "glitch" in PennDOT's Motor Voter compliance system. At least one news report claims that "a Pennsylvania Department of State review is underway." I seek all voter records contained in this review.

2. All documents and records of communication received or maintained by your office from registered voters, legal counsel, claimed relatives, or other agents since January 1, 2006 requesting a removal or cancellation from the voter roll for any reason related to non-U.S. citizenship/ineligibility. Please include any official records indicating maintenance actions undertaken thereafter.

3. All documents and records of communication received or maintained by your office from jury selection officials—state and federal—since January 1, 2006 referencing individuals who claimed to be non-U.S. citizens when attempting to avoid serving a duty call. This request seeks copies of the official referrals and documents indicating where your office or local registrars matched a claim of noncitizenship to an existing registered voter and extends to the communications and maintenance actions taken as a result that were memorialized in any written form.

4. All communications regarding list maintenance activities relating to #1 through 3 above to appropriate local prosecutors, Pennsylvania Attorney General, Pennsylvania State Police, any other state law enforcement agencies, the United States Attorney's office, or the Federal Bureau of Investigation.

(See Doc. 66 ¶ 9; Doc. 1-9). The Commonwealth denied PILF's request claiming NVRA applied only to records relating to statutorily mandated removal programs, not the records sought by PILF. (See Doc. 66 ¶ 17; Doc. 72 ¶ 17; see also Doc. 1-11).

PILF filed a lawsuit against the Commonwealth in this court, asserting the Commonwealth's denial of PILF's records request violated NVRA. We held PILF falls within NVRA's "zone of interests" and had standing, but that it failed to comply with the statute's notice requirements. See Pub. Int. Legal Found. v. Boockvar, 370 F. Supp. 3d 449, 454-58 (M.D. Pa. 2019). Accordingly, we dismissed the lawsuit. See id.

After fulfilling the notice requirement, (see Doc. 66 ¶¶ 18-19), PILF refiled its NVRA claims in the instant lawsuit. The Commonwealth subsequently moved to dismiss, reiterating its claim that the records sought by PILF did not fall within the ambit of NVRA's disclosure requirement and, in the alternative, the records sought by PILF are protected by the Driver's Privacy Protection Act ("DPPA"), 18 U.S.C. § 2721. Our decision disposing of the Commonwealth's motion held that the Commonwealth's investigation of the glitch falls within the ambit of NVRA's disclosure requirement but that records and...