True The Vote v. Hosemann, C.A. No. 3:14–CV–532–NFA.

• Court: United States District Courts. 5th Circuit. Southern District of Mississippi
• Writing for the Court: NANCY F. ATLAS, District Judge.
• Citation: 43 F.Supp.3d 693
• Parties: TRUE THE VOTE, Jane Coln, Brandie Correro, Chad Higdon, Jennifer Higdon, Gene Hopkins, Frederick Lee Jenkins, Tavish Kelly, Donna Knezevich, Joseph Knezevich, Doris Lee, Lauren Lynch, Norma Mackey, Roy Nicholson, Mark Patrick, Julie Patrick, Paul Patrick, David Philley, Grant Sowell, Sybil Tribble, Laura Vanoverschelde, and Elaine Vechorik, Plaintiffs, v. The Honorable Delbert HOSEMANN, in his official capacity as Secretary of State for the State of Mississippi, The Republican Party of Mississippi, Copiah County, Mississippi Election Commission, Hinds County, Mississippi Election Commission, Jefferson Davis County, Mississippi Election Commission, Lauderdale County, Mississippi Election Commission, Leake County, Mississippi Election Commission, Madison County, Mississippi Election Commission, Rankin County, Mississippi Election Commission, Simpson County, Mississippi Election Commission, and Yazoo County, Mississippi Election Commission, Defendants.
• Docket Number: C.A. No. 3:14–CV–532–NFA.
• Decision Date: 29 August 2014

43 F.Supp.3d 693

TRUE THE VOTE, Jane Coln, Brandie Correro, Chad Higdon, Jennifer Higdon, Gene Hopkins, Frederick Lee Jenkins, Tavish Kelly, Donna Knezevich, Joseph Knezevich, Doris Lee, Lauren Lynch, Norma Mackey, Roy Nicholson, Mark Patrick, Julie Patrick, Paul Patrick, David Philley, Grant Sowell, Sybil Tribble, Laura Vanoverschelde, and Elaine Vechorik, Plaintiffs
v.
The Honorable Delbert HOSEMANN, in his official capacity as Secretary of State for the State of Mississippi, The Republican Party of Mississippi, Copiah County, Mississippi Election Commission, Hinds County, Mississippi Election Commission, Jefferson Davis County, Mississippi Election Commission, Lauderdale County, Mississippi Election Commission, Leake County, Mississippi Election Commission, Madison County, Mississippi Election Commission, Rankin County, Mississippi Election Commission, Simpson County, Mississippi Election Commission, and Yazoo County, Mississippi Election Commission, Defendants.

C.A. No. 3:14–CV–532–NFA.

United States District Court, S.D. Mississippi, Jackson Division.

Signed Aug. 29, 2014.

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James Edwin Trainor–PHV, III, Beirne, Maynard & Parsons, LLP, Austin, TX, Joseph M. Nixon–PHV, Kelly Hunsaker Leonard–PHV, Kristen W. McDanald–PHV, Beirne, Maynard & Parsons, LLP, Houston, TX, Lloyd Eades Hogue, Beirne, Maynard & Parsons, LLP, New Orleans, LA, for Plaintiffs.

Harold Edward Pizzetta, III, Office of the Attorney General, Justin L. Matheny, Mississippi Attorney General's Office, Michael B. Wallace, Wise, Carter, Child & Caraway, Pieter Teeuwissen, Pieter Teeuwissen, PLLC, Robert E. Sanders, Young Wells Williams Simmons, PA, Mike Espy, Mike Espy, PLLC, Jackson, MS, Thornton Russell Nobile, Wise, Carter, Child & Carraway, Gulfport, MS, Elise Berry Munn, Berry & Munn, PA, Hazlehurst, MS, John Wesley Daughdrill, Jr., Young Wells Williams, PA, Ridgeland, MS, Lee Thaggard, Barry, Thaggard, May & Bailey, LLP, Meridian, MS, Jeffrey T. Webb, Webb Law Firm, PLLC, Carthage, MS, Craig Lawson Slay, Brandon, MS, Robert Daniel Welch, Danny Welch, Attorney at Law, Mendenhall, MS, for Defendants.

MEMORANDUM AND ORDER

NANCY F. ATLAS, District Judge.

TABLE OF CONTENTS

I. BACKGROUND 702

A.	The Primary and Primary Runoff Elections	702
B.	Plaintiffs' Allegations and Evidence	703
C.	Procedural Posture	705

II. MOTIONS FOR SUMMARY JUDGMENT 706

A.	Summary Judgment Standard	706
B.	Analysis	707

1. Have Plaintiffs Sued the Proper Defendants? 709

a.	Is the Republican Party a Proper Defendant?	709
b.	Are the County Defendants Proper Defendants?	709

i.	Mississippi's Registration and Election Oversight Structure and Procedure	709
ii.	Analysis	711

c. Is Hosemann a Proper Defendant? 713

2.	Does Section 1973gg–9 Pose a Procedural Bar to Plaintiffs' Suit?	713
3.	What Documents Do Plaintiffs Seek?	717
4.	Are Plaintiffs Entitled Under the NVRA to Inspect the Requested Documents?	718

a. Statutory Construction 718

i.	Plain Meaning—Overall Principles	718
ii.	Statutory Context of the Public Disclosure Provision Within the NVRA	720
iii.	Statutory Purpose of the NVRA	720
iv.	Context of the NVRA Public Disclosure Provision in Light of Other Federal and State Laws	722

b. SRequested Documents 723

i.	Voter Roll	723
ii.	Poll Books	724
iii.	Absentee Ballot Applications and Envelopes	726
iv.	Federal Post Card Applications	728

5. Does the NVRA Preempt Mississippi Law? 729

a.	Preemption Standard	729
b.	Mississippi Law	731
c.	Does the NVRA Require Disclosure of Unredacted Records?	732

i.	Project Vote is Distinguishable	732
ii.	The NVRA Does Not Require Disclosure of Unredacted Documents	733
iii.	Birthdates, Like Social Security Numbers, Are “Uniquel y Sensitive.”	736

d. The NVRA Public Disclosure Provision Does Not Preempt Mississippi's Redaction Provisions 740

III. PLAINTIFFS' PRELIMINARY INJUNCTION MOTION 740

A.	Preliminary Injunction Standard	740
B.	Analysis	741

1.	Substantial Likelihood of Success on the Merits	741
2.	Irreparable Injury	741
3.	Balance of Hardships	742
4.	Disservice to the Public Interest	742

IV. THE REPUBLICAN PARTY'S SANCTIONS MOTION 743

A.	Legal Standard	743
B.	Analysis	744

V.	RULE 54(b) JUDGMENT	744
VI.	CONCLUSION AND ORDER	745

43 F.Supp.3d 699

MEMORANDUM AND ORDER

The Court in this case is required to construe the scope of the National Voter Registration Act (“NVRA”), 42 U.S.C. § 1973 et seq.,¹ a federal law that has

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seldom generated litigation. A particular focal point of this case is the June 24, 2014 primary runoff election held to determine the Republican Party of Mississippi's candidate in the November 2014 U.S. Senate election. Plaintiffs² state that they seek certain unredacted voting records from that election pursuant to the NVRA Public Disclosure Provision, 42 U.S.C. § 1973gg–6(i) (“Public Disclosure Provision”), in order to investigate potential irregularities or inaccuracies concerning the primary runoff election and possibly to raise a challenge to the outcome of that election. Defendants³ have refused some of Plaintiffs' requests citing multiple grounds, but primarily Defendants contend that Mississippi law requires redaction of certain personal voter registrant information from the records before they are publicly disclosed.

Before the Court are the following motions, each of which is ripe for consideration:

• Plaintiffs' Motion for Temporary Restraining Order [and Preliminary Injunction]⁴ [Doc. # 8] (“Preliminary Injunction Motion”);⁵

43 F.Supp.3d 701

• Plaintiffs' Motion for Partial Summary Judgment [Docs. # 83 and # 84] (“Plaintiffs' Summary Judgment Motion”);⁶

• Defendant Hosemann's Summary Judgment Request [Doc. # 114];⁷

• Defendant Copiah County's Motion for Summary Judgment [Doc. # 79] (“Copiah County's Motion”);⁸

• Defendant Hinds County's Motion for Summary Judgment [Docs. # 80 and # 81] (“Hinds County's Motion”);⁹

• Defendant Jefferson Davis County's Motion for Summary Judgment [Doc. # 82] (“Jefferson Davis County's Motion”);¹⁰

• Defendant Rankin County's Motion for Summary Judgment [Docs. # 85 and # 86] (“Rankin County's Motion”);¹¹

• Defendant Republican Party's Motion to Dismiss or, in the alternative, for Summary Judgment [Docs. # 87 and # 88] (“Republican Party's Summary Judgment Motion”);¹²

• Defendant Lauderdale County's Motion for Summary Judgment [Doc. # 89] (“Lauderdale County's Motion”);¹³

• Defendant Hosemann's Motion to Strike [Docs. # 116 and # 117].¹⁴

• Defendant Republican Party's Motion for Sanctions [Doc. # 67] (“Republican Party's Sanctions Motion”);¹⁵

The Court held a hearing on Plaintiffs' Preliminary Injunction Motion on July 24, 2014 (the “July 24th Hearing”). Plaintiffs and Defendants presented evidence and made legal arguments to the Court at that time.¹⁶ The parties have furnished additional

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evidence in support of their claims, defenses, and motions.¹⁷

Having considered all the parties' briefing, the parties' oral arguments at the July 24th Hearing, all evidence of record, and the applicable legal authorities, the Court grants summary judgment to each of the moving County Defendants and to Hosemann, grants in part and denies in part the Republican Party's Summary Judgment Motion, denies Plaintiffs' Summary Judgment and Preliminary Injunction Motions, denies the Republican Party's Sanctions Motion, and denies Defendant Hosemann's Motion to Strike. Plaintiffs' first two claims are dismissed with prejudice.

I. BACKGROUND

A. The Primary and Primary Runoff Elections

On June 3, 2014, Defendant Republican Party conducted a primary election to determine the party's candidate for the November 2014 United States Senate election. The two highest vote-getters in the primary,¹⁸ incumbent U.S. Senator Thad Cochran (“Cochran”) and State Senator Chris McDaniel (“McDaniel”), then participated in a primary runoff election three weeks later, on June 24, 2014.¹⁹ According to the Republican Party, Cochran was victorious in the runoff election, receiving approximately 7,600 more votes than McDaniel.²⁰ The Republican Party officially certified Cochran as the primary winner on July 7, 2014, and submitted that information to the Mississippi Secretary of State, Defendant Delbert Hosemann.²¹ McDaniel continues to challenge the outcome of the primary runoff.²²

B. Plaintiffs' Allegations and Evidence

True the Vote characterizes itself as a “non-profit organization that works to protect

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the integrity of local, state, and federal elections.”²³ “True the Vote monitors elections for compliance with state and federal law and identifies instances of voting irregularities or possible fraud.”²⁴ True the Vote also “examines official lists of eligible voters and other voter registration data to verify their accuracy and currency ... to protect the integrity of the electoral process and to ensure that accurate and current voter rolls are maintained by each state.”²⁵ True the Vote's President, Catherine Engelbrecht (“Engelbrecht”), testified that, as part of its mission, the organization trains volunteers to get involved in elections, researches the country's voter files to ensure their accuracy, and provides support to individuals concerned about election integrity in communities.²⁶

In June 2014, True the Vote initiated a campaign to seek “voter records” from the State of Mississippi.²⁷ The purpose of True the Vote's initiative was to determine “whether ineligible voters had been allowed to cast ballots in the Mississippi Republican Primary Runoff Election.”²⁸ Engelbrecht testified that True the Vote started this initiative after Mississippi voters reached out to the organization about concerns they had regarding “whether or not their vote would be counted.”²⁹

Engelbrecht first traveled to Mississippi to request records the week prior to the June 24th runoff election. Specifically, Engelbrecht visited Hinds, Rankin, and Panola Counties.³⁰ In Hinds and Rankin Counties, Engelbrecht requested absentee ballot applications and envelopes. Both counties denied her request.³¹ In Panola County, Engelbrecht requested a report of...