Voter Reference Found. v. Balderas
| Decision Date | 22 July 2022 |
| Docket Number | CIV 22-0222 JB/KK |
| Parties | VOTER REFERENCE FOUNDATION, LLC, and HOLLY STEINBERG, Plaintiffs, v. HECTOR BALDERAS, in his official capacity as New Mexico Attorney General, and MAGGIE TOULOUSE OLIVER, in her official capacity as New Mexico Secretary of State, Defendants. |
| Court | U.S. District Court — District of New Mexico |
Carter B. Harrison IV Harrison, Hart & Davis, LLC Albuquerque New Mexico and Edward Dean Greim Matthew Richard Mueller Graves Garrett, LLC Kansas City, Missouri Attorneys for the Plaintiffs
Hector H. Balderas New Mexico Attorney General Olga Serafimova Senior Civil Counsel New Mexico Office of the Attorney General Santa Fe, New Mexico Attorneys for the Defendants
THIS MATTER comes before the Court on the Plaintiffs' Motion for Preliminary Injunction, filed March 28, 2022 (Doc 3)(“PI Motion”), and Plaintiff's Suggestions in Support of Motion for Preliminary Injunction, filed March 28, 2022 (Doc. 4)(“PI Memo.”). The Court held hearings on the PI Motion on May 17, 2022, see Clerk's Minutes at 1, filed May 17, 2022 (Doc. 38), and June 15 2022, see Clerk's Minutes at 1, filed June 15 2022 (Doc. 42). The primary issues are: (i) whether the Defendant Secretary of State Maggie Toulouse Oliver's interpretation of the New Mexico Election Code is correct; (ii) whether the Plaintiffs Voter Reference Foundation, LLC (“Voter Reference”), and Holly Steinberg have standing; and (iii) whether the Court should grant a preliminary injunction (“PI”) enjoining the Defendant Attorney General Hector Balderas and the Secretary of State from prohibiting the Plaintiffs “from disseminating or using voter information available under New Mexico election law for purposes related to election integrity, election transparency, and increasing voter participation” or prosecuting, or punishing the Plaintiffs under N.M.S.A. §§ 1-4-5.5 or 1.4-5.6 “as a result of Plaintiffs' use of the voter information.” PI Motion at 2.
The Court concludes that: (i) it disagrees with the Secretary of State's interpretation of the New Mexico Election Code; (ii) Voter Reference has standing to pursue its claims but Steinberg does not have standing to pursue her claims; (iii) Voter Reference is entitled to a PI, because, although Voter Reference seeks a disfavored injunction, Voter Reference is likely to succeed on the merits of part of its viewpoint discrimination and prior restraint claims, and Voter Reference shows that it will suffer irreparable injury absent a PI; and (iv) the Court will not require Voter Reference to secure a bond. Accordingly, the Court will grant in part the PI Motion.
The Court takes its findings of fact from the Verified Complaint for Declaratory Judgment and Preliminary and Permanent Injunctive Relief, filed March 28, 2022 (Doc 1)(“Complaint”), the May 17, 2022 Hearing, the June 15, 2022 Hearing, the Plaintiffs' Proposed Findings of Fact and Conclusions of Law, filed June 29, 2022 (Doc. 47)(“Pl. FOF”), and the Defendants' Proposed Findings of Fact and Conclusions of Law, filed June 29, 2022 (Doc. 48)(“Def. FOF”). “‘[T]he findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits.'” Herrera v. Santa Fe Pub. Sch., 792 F.Supp.2d 1174, 1179 (D.N.M. 2011)(Browning, J.)(quoting Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009))(alteration in Herrera v. Santa Fe Public Schools only). See Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)(“[A] preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits.”); Firebird Structures, LCC v. United Bhd. of Carpenters and Joiners of Am., Local Union No. 1505, 252 F.Supp.3d 1132, 1140 (D.N.M. 2017)(Browning, J.). The United States Court of Appeals for the Tenth Circuit notes that “when a district court holds a hearing on a motion for preliminary injunction it is not conducting a trial on the merits.” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003). Moreover, “[t]he Federal Rules of Evidence do not apply to preliminary injunction hearings.” Heideman v. S. Salt Lake City, 348 F.3d at 1188. Thus, while the Court does the best it can to make findings from the record that it has and in the short time that it has to make findings, these findings of fact are only to determine whether to issue a PI. These facts do not bind the Court or the parties at trial. Accordingly, the Court finds as follows:
1. The Parties.
1. Voter Reference is an “Ohio nonprofit limited liability company and subsidiary of Restoration Action, Inc., a 501(c)(4) social welfare organization.” Complaint ¶ 12, at 4.
2. Voter Reference “operates the website VoteRef.com.” Complaint ¶ 12, at 4.
3. VoteRef.com states:
VoteRef.com, Welcome to VoteRef.com, https://voteref.com/ (last visited May 12, 2022). See Complaint ¶ 12, at 4.
4. The purpose of VoteRef.com “is to provide public access to official government data pertaining to elections, including voter registration rolls” and to “increase voter participation and make the state's election processes more transparent.” Complaint ¶ 12, at 4. 5. Voter Reference “encourages users” of VoteRef.com to report “data . . . that . . . is wrong or was entered incorrectly” “directly to the appropriate Secretary of State or clerk.” Complaint ¶ 12, at 4.
6. Voter Reference seeks to “post, distribute, and otherwise share voter data available under N.M. Stat. § 1-4-5.5 on [VoteRef.com] so that the public may become and remain informed regarding New Mexico's elections and voter registration rolls.” Complaint ¶ 12, at 5.
7. Voter Reference has “collected voter registration information for at least fourteen states (Alaska, Colorado, Connecticut, Georgia, Idaho, Michigan, Montana, Nevada, New Jersey, New Mexico, North Carolina, Ohio, Pennsylvania, Virginia, and Wisconsin),” and aims to collect data for all fifty states by the end of 2022. Complaint ¶ 37, at 10.
8. Gina Swoboda is the Executive Director of Voter Reference Foundation, see May Tr. at 52:18-19 (Swoboda), and her duties include “manag[ing] the operations staff and the data staff, and . . . talk[ing] about the data,” May Tr. at 52:21-22 (Swoboda).
9. Swoboda served “under two different administrations in the Arizona Secretary of State's Office,” is “a certified deputy registrar with Maricopa County,” and “was the state director of election day operations in the 2020 campaign for President Trump.” May Tr. at 52:25-53:5 (Swoboda).
10. Swoboda joined Voter Reference on May 17, 2021, after receiving a recruitment telephone call. See May Tr. at 53:7-9 (Greim, Swoboda).
11. Plaintiff Holly Steinberg is a New Mexico resident, who “worked and continues to work with grassroots organizations advocating for, among other things, transparency in New Mexico's elections both to increase voter participation and to ensure the integrity of the election process.” Complaint ¶ 13, at 5.
12. “Steinberg wishes to use the New Mexico data that VRF had posted and intends to post on its Website in order to accomplish these twin aims, as the cost to purchase the data for her personal use is unreasonably high.” Complaint ¶ 13, at 5.
13. Under the New Mexico Secretary of State's use restrictions, Steinberg cannot use the data if she purchases it herself, because she is not using it for a political or electoral campaign. See Complaint ¶ 13, at 5.
14. Defendant Hector Balderas is the Attorney General for the State of New Mexico. See Complaint ¶ 14, at 5.
15. The New Mexico Attorney General is “responsible under state law for investigating and prosecuting violations of the Election Code, including the unlawful use of voter data under § 1-4-5.5 and § 1-4-5.6.” Complaint ¶ 14, at 5-6 (citing N.M.S.A. § 1-2-1.1(A) (); N.M.S.A. § 1-2-2 (); N.M.S.A. § 1-1-1 ().
16. Oliver is the New Mexico Secretary of State and, “in that capacity, is the chief election officer of the state.” Complaint ¶ 15, at 6 (citing N.M.S.A. § 1-2-1(A)).
17. The Secretary of State is “responsible under state law for furnishing voter data to requesters and referring potential violations of the Election Code, including the unlawful use of voter data under § 1-4-5.5 and § 1-4-5.6, to the Attorney General for investigation and prosecution.” Complaint ¶ 15, at 6 (citing N.M.S.A. § 1-2-1.1(A); N.M.S.A. § 1-2-2; N.M.S.A. § 1-1-1).
2. The Secretary of State's Responses to 2017 Requests for Voter Data from President Trump's Advisory Commission on Election Integrity.
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