472 F.Supp.3d 234
D. Maryland
2020
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Background

  • Dennis Fusaro, a Virginia resident acquitted after prosecution in Maryland, applied for Maryland’s statewide registered-voter list and was denied under Md. Elec. Law § 3-506 because he is not a Maryland-registered voter and his planned letters criticize an appointed State Prosecutor and are not about elections.
  • § 3-506 requires (1) requester be a Maryland registered voter, (2) a signed oath that the list will not be used for commercial solicitation or any purpose not related to the "electoral process," and (3) payment; § 3-506(c) makes knowing misuse a misdemeanor.
  • Fusaro sued seeking declaratory and injunctive relief under the First and Fourteenth Amendments, challenging (a) the registered-voter speaker restriction and (b) the prohibition on non-"electoral process" uses (also alleging vagueness).
  • The district court dismissed; the Fourth Circuit reversed, finding a cognizable First Amendment claim and directing this court to apply the Anderson-Burdick balancing test and to address vagueness.
  • On remand after discovery, the district court (Hollander, J.) granted defendants’ summary judgment and denied Fusaro’s: it concluded the electoral-use restriction survives Anderson-Burdick balancing and that the phrase "electoral process" is not unconstitutionally vague as applied or facially. The court avoided a constitutional ruling on the registered-voter restriction in light of NVRA preemption (per Judicial Watch).

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Registered-voter access restriction in § 3-506(a) Bars Fusaro from access based on speaker/status; is speaker- and content-based discrimination Protects voter privacy, encourages registration, subsidizes list for Maryland taxpayers Court avoided constitutional ruling because, per Judicial Watch, the NVRA preempts Maryland’s registered-voter bar (so it did not deny access on that ground)
Electoral-use prohibition (§ 3-506(c)) — First Amendment (Anderson-Burdick) Rule forbids Fusaro’s non-electoral political communications and is a serious burden that should trigger heightened scrutiny Modest, viewpoint-neutral regulation protecting privacy, encouraging registration, preventing abuse of a cheap statewide list Under Anderson-Burdick the burden is modest; state interests are legitimate and sufficient; restriction upheld
Vagueness of term "electoral process" Term is indeterminate, chills speech and third-party vendors; risk of arbitrary enforcement Term has ordinary meaning in election code context; prosecution history is minimal; not vague Court (on remand) held phrase provides sufficient notice; not unconstitutionally vague as applied or facially
Ripeness / credible threat of prosecution Fusaro faces a real chill and credible threat because statute criminalizes misuse; thus claim ripe Little or no prior enforcement; no assurance of prosecution; ripeness challenged Court treated the claim as ripe (Fourth Circuit directed merits); addressed and rejected vagueness and First Amendment challenges on the merits

Key Cases Cited

  • Fusaro v. Cogan, 930 F.3d 241 (4th Cir. 2019) (Fourth Circuit found a viable First Amendment challenge and remanded for Anderson-Burdick analysis and vagueness review)
  • Fusaro v. Davitt, 327 F. Supp. 3d 907 (D. Md. 2018) (district court’s earlier dismissal of Fusaro’s complaint)
  • Anderson v. Celebrezze, 460 U.S. 780 (1983) (Anderson-Burdick balancing framework for election regulations)
  • Burdick v. Takushi, 504 U.S. 428 (1992) (clarifies level of scrutiny under Anderson-Burdick)
  • Buckley v. Valeo, 424 U.S. 1 (1976) (recognizing instruments of effective political speech can merit heightened protection)
  • Los Angeles Police Dep’t v. United Reporting Pub. Corp., 528 U.S. 32 (1999) (government has no general constitutional obligation to disclose records)
  • North Carolina Right to Life, Inc. v. Leake, 525 F.3d 274 (4th Cir. 2008) (vagueness analysis for campaign-regulation standards; struck broad, context-dependent standards)
  • Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) (facial vagueness requires more than uncertainty in some applications)
  • Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) (credible-threat/ripeness principles for pre-enforcement First Amendment challenges)
  • MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007) (no need to risk prosecution to obtain pre-enforcement relief)
  • FCC v. Fox Television Stations, Inc., 567 U.S. 239 (2012) (void-for-vagueness doctrine addresses notice and arbitrary enforcement concerns)
  • United States v. Williams, 554 U.S. 285 (2008) (void-for-vagueness standards)
  • McLaughlin v. North Carolina Bd. of Elections, 65 F.3d 1215 (4th Cir. 1995) (applying ad hoc balancing to election-law challenges)
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