DENNIS FUSARO, Plaintiff – Appellant, v. CHARLTON T. HOWARD, III, Maryland State Prosecutor, in his official capacity; MICHAEL R. COGAN, Maryland State Board of Elections; VICE-CHAIRMAN PATRICK J. HOGAN, Maryland State Board of Elections; WILLIAM G. VOELP, Maryland State Board of Elections; MEMBER KELLEY A. HOWELLS, Maryland State Board of Elections; MALCOLM L. FUNN, Maryland State Board of Elections, Defendants – Appellees.
No. 20-1879
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
November 19, 2021
PUBLISHED. Appeal from the United States District Court for the District of Maryland, at Baltimore. Ellen L. Hollander, District Judge. (1:17-cv-03582-ELH). Argued: September 23, 2021. Before GREGORY, Chief Judge, and KING and FLOYD, Circuit Judges.
ARGUED: Stephen Ralph Klein, BARR & KLEIN PLLC, Washington, D.C., for Appellant. Andrea William Trento, OFFICE OF THE ATTORNEY GENERAL OF
Plaintiff Dennis Fusaro appeals from the district court‘s rejection of his constitutional claims concerning
In 2019, after the district court dismissed Fusaro‘s Complaint for failure to state a claim for relief cognizable under the First Amendment, Fusaro appealed. By decision of July 12, 2019, we vacated the district court‘s dismissal of the Complaint. See Fusaro v. Cogan, 930 F.3d 241, 245 (4th Cir. 2019). In remanding for further proceedings, we requested the court to analyze Fusaro‘s free speech claims under the standard articulated by the Supreme Court in Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992). Moreover, we requested that the court reach and resolve the merits of Fusaro‘s vagueness claim.
I.
A.
As more fully detailed in our earlier Fusaro decision, see 930 F.3d at 244-47, Fusaro is a resident of and registered voter in the Commonwealth of Virginia. Fusaro has worked on regional and national political campaigns, and he intends to “continue his involvement in elections and political advocacy,” including in Maryland. See Complaint ¶ 16. In 2014, Fusaro consulted for a successful county-level campaign in Maryland. In connection
In August 2017, Fusaro was acquitted by a jury in Anne Arundel County of all charges. As a result of that prosecution, Fusaro wanted to send a letter expressing his displeasure with then-State Prosecutor Emmett C. Davitt, “shar[ing] his story with Maryland citizens,” and urging them to seek Davitt‘s resignation. See Complaint ¶ 2. To facilitate that letter writing campaign against Davitt, Fusaro sought a copy of the List made available under
Fusaro thereafter applied for a copy of the List, but his application was rejected by the State Board because he was not a registered Maryland voter, as required by the Access Provision. The statutory provisions concerning the List are set forth in
(a) (1) A copy of a list of registered voters shall be provided to a Maryland registered voter on receipt of:
(i) a written application; and
(ii) a statement, signed under oath, that the list is not intended to be used for:
1. commercial solicitation; or
2. any other purpose not related to the electoral process.
* * *
(c) A person who knowingly allows a list of registered voters, under the person‘s control, to be used for any purpose not related to the electoral process is guilty of a misdemeanor and, on conviction, is subject to the penalties under Title 16 [of the Election Law].
See
Notably,
B.
In December 2017, Fusaro filed suit in the District of Maryland against Davitt and members of the State Board (collectively, the “State“).5 The Complaint asserted the aforementioned free speech and vagueness claims, with each claim pursued both facially and as-applied.6 As exhibits to the Complaint, Fusaro submitted his letter criticizing Davitt, his rejected application for the List, and his correspondence with the State Board.
In September 2018, the district court granted the State‘s motion to dismiss the Complaint for failure to state a claim for relief cognizable under the First Amendment. In
In our Fusaro decision of July 12, 2019, we disagreed with the district court and concluded that both the Access and Use Provisions implicate the First Amendment right to free speech. See 930 F.3d at 256. As such, we proceeded to identify the correct level of scrutiny applicable to Fusaro‘s free speech claims. Id. In so doing, we determined that the Access and Use Provisions are subject to the standard set forth in the Supreme Court‘s Anderson and Burdick decisions. Id. at 258. Pursuant thereto, “a court must first determine whether the protected rights are severely burdеned. If so, strict scrutiny applies.” Id. at 257-58 (quoting McLaughlin v. N.C. Bd. of Elections, 65 F.3d 1215, 1221 (4th Cir. 1995)). If the protected rights are not severely burdened, however, “the court must balance the character and magnitude of the burdens imposed against the extent to which the regulations advance the state‘s interests in ensuring that order, rather than chaos, is to accompany the democratic processes.” Id. at 258 (quoting McLaughlin, 65 F.3d at 1221).
Because it was clear to us that the Access and Use Provisions do not severely burden First Amendment rights, we were “satisfied that the resolution of Fusaro‘s claims turn[ed]” not on strict scrutiny review, but rather “on the balancing of interests described in the Anderson-Burdick framework‘s subsequent steps.” See Fusaro, 930 F.3d at 259. Consequently, we requested that on remand the district court apply the Anderson-Burdick
C.
The parties thereafter initiated and conducted discovery in the remand proceedings. At that time, Fusaro moved pursuant to Federal Rule of Civil Procedure 15(d) for leave to file a supplemental complaint. See Fusaro v. Howard, No. 1:17-cv-03582 (D. Md. Sept. 10, 2019), ECF No. 41 (the “Supplemental Complaint“). Pursuant to Federal Rules of Civil Procedure 10(b) and 10(c), the Supplemental Complaint incorporated all relevant paragraphs of the Complaint, including Fusaro‘s acknowledgement that his letter concerning the State Prosecutor “literally cannot . . . be reasonably interpreted to relate to elections or to the electoral process.” See Complaint ¶ 35. The Supplemental Complaint also referred to Davitt‘s retirement as State Prosecutor and contained as an exhibit another letter that Fusaro wished to send to Maryland registered voters. That letter described Fusaro‘s litigation efforts and read, in relevant part, that “[a]s a registered voter you may or may not vote in state-level elections in the ‘Free State’ but your voice can and should be heard when it comes to the way public officials — elected or appointed — behave in office.” See J.A. 537.7
The State submitted a response to Fusaro‘s discovery requests from Charlton T. Howard III, who was by then serving as State Prosecutor. According to Howard, Maryland‘s interests in limiting use of the List to purposes “related to the electoral process” were twofold: first, to protect the privacy of Maryland‘s voters, and second, to encourage voter registration and participation in Maryland‘s elections. Seе J.A. 297-98. More specifically, Howard declared that use of the List is restricted to safeguard the privacy of
Contrary to allegations set forth in the Complaint that Fusaro‘s letters “literally cannot . . . be reasonably interpreted to relate to elections or to the electoral process,” see Complaint ¶ 35, Fusaro‘s December 2019 affidavit averred to the contrary. There, Fusaro insisted that, even after reviewing the testimony and discovery responses from the State Prosecutor and the State Board, he still did not “understand what is authorized or prohibited by the term ‘related to the electoral process.‘” See J.A. 350-51; but see Complaint ¶¶ 20, 22, 26, 35. He also claimed that he did not know whether state law prohibited him from sending either of his letters. Fusaro also expressed concern that, in the future, he would potentially be prosecuted for sending one of his letters. And because of those fears, Fusaro indicated that he would not seek a copy of the List from any third-party sources.
In his discovery requests, Fusaro also asked the State to identify how it determines whether a particular applicant‘s use of the List falls within the “electoral process.” The State responded that applicants are not required to disclose their intended use of the List to the State Board because the State Prosecutor makes that determination. The State Board occasionally consults “publicly available sources to learn information about organizations” that apply for the List, when the “identity of the organization” requesting the list “may raise questions as to thе permissibility of the intended use.” See J.A. 261.
Howard declined to admit or deny Fusaro‘s request for admission that each of his proposed letters contravened the Use Provision because that determination depended “on numerous other factors not addressed by [Fusaro‘s] abstract hypothetical.” See J.A. 301.
D.
Before the parties filed their summary judgment motions, the district court made a dispositive ruling in a separate proceeding called Judicial Watch, Inc. v. Lamone. In Lamone, the court ruled that
E.
Soon thereafter, the parties filed their cross-motions for summary judgment in this litigation. For reasons explained in its opinion of July 14, 2020, the district court denied Fusaro‘s motion and awarded summary judgment to the State. See Fusaro, 472 F. Supp. 3d at 267.8 The court did not assess or resolve the merits of Fusaro‘s Access Provision-based free speech claim. Id. at 256-57. The court explained that it was unnecessary to address that constitutional claim because under its decision in Lamone, the Access Provision no longer prevented Fusaro from accessing or obtaining a copy of the List. Id.9
II.
We review de novo a district court‘s disposition of cross-motions for summary judgment. See Bostic v. Schaefer, 760 F.3d 352, 370 (4th Cir. 2014). “When cross-motions for summary judgment are before a court, the court examines each motion separately, employing the familiar standard under
In this appeal, Fusaro contests the district court‘s summary judgment award to the State relative to his Use Provision-based free speech and vagueness claims. With respect to the free speech claim, Fusaro asserts that the Use Provision should be subjected to strict scrutiny review, and, in any event, it fails to pass muster under the Anderson-Burdick balancing test. Regarding the vagueness claim, Fusaro maintains that the phrase “related to the electoral process,” as set forth in the Use Provision, is unconstitutionally vague. Just as they were raised below, Fusaro pursues those two claims both facially and as-applied.
We begin with Fusaro‘s claim that — as applied to him — the Use Provision contravenes the Free Speech Clause. Utilizing the Anderson-Burdick balancing test, we conclude that claim is without merit. Next, we turn to Fusaro‘s as-applied vagueness claim, which we also find unavailing. Finally, we reject each of Fusaro‘s facial challenges. We thus affirm the district court‘s summary judgment award to the State.
A.
We first assess whether the Use Provision, as applied to Fusaro, contravеnes the Free Speech Clause of the First Amendment. As we requested in Fusaro, the district court analyzed the Use Provision under the Anderson-Burdick balancing test and awarded summary judgment in favor of the State. We agree with the court‘s analysis.
1.
As an initial matter, we briefly address Fusaro‘s contention that we should apply strict scrutiny — and not the Anderson-Burdick balancing test — to decide whether the Use Provision contravenes the Free Speech Clause. The law of the case doctrine, however,
Generally, the law of the case doctrine “posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” See United States v. Aramony, 166 F.3d 655, 661 (4th Cir. 1999) (quoting Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 815-16 (1988)). Those stages include a subsequent appeal in the same litigation. See TFWS, Inc. v. Franchot, 572 F.3d 186, 191 (4th Cir. 2009). As such, once the decision of our Court establishes the law of the case, we adhere to that decision in subsequent appellate rulings “unless: (1) a subsequent triаl produces substantially different evidence, (2) controlling authority has since made a contrary decision of law applicable to the issue, or (3) the prior decision was clearly erroneous and would work manifest injustice.” See Aramony, 166 F.3d at 661 (internal quotation marks omitted).
Relative to the third Aramony exception, we have observed that for a prior decision of this Court to be “clearly erroneous,” it cannot be “just maybe or probably wrong; it must . . . strike us as wrong with the force of a five-week-old, unrefrigerated dead fish.” See TFWS, Inc., 572 F.3d at 194 (internal quotation marks omitted). That is, in order for this exception to apply, the prior decision must be “dead wrong.” Id.
In Fusaro, we ruled that, as to Fusaro‘s free speech claims, the Access and Use Provisions should both be analyzed under the Anderson-Burdick balancing test. See Fusaro, 930 F.3d at 255, 263 (concluding that “restrictions that [
Absent an Aramony exception, we must abide by our prior decision in Fusaro. None of those exceptions apply here. The first two Aramony exceptions are inapposite because there has been no subsequent trial or a change in controlling precedent that compels us to abandon Fusaro. As to the third exception, we find no conceivable rationale that would permit us to reach the conclusion that Fusaro “was clearly erroneous and would work manifest injustice.” See Aramony, 166 F.3d at 661 (internal quotation marks omitted). In other words, we cannot say that Fusaro was “dead wrong.” See TFWS, Inc., 572 F.3d at 194. Indeed, we remain convinced of the correctness of our Fusaro decision.10
2.
a.
We accordingly turn to our application of the Anderson-Burdick balancing test to Fusaro‘s claim that the Use Provision — as applied to him — contravenes the Free Speech Clause of the First Amendment. That clause provides that “Congress shall make no law . . . abridging the freedom of speech.” See
In Fusaro, we explained that in applying the Anderson-Burdick balancing test, “the court must balance the character and magnitude of the burdens imposed against the extent to which the regulations advance the state‘s interests in ensuring that order, rather than chaos, is to accompany the democratic processes.” See 930 F.3d at 258 (quoting McLaughlin v. N.C. Bd. of Elections, 65 F.3d 1215, 1221). More specifically, the Anderson-Burdick balancing test directs that
[a] court considering a challenge to a state election law must weigh “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate” against “the precise interests put forward by the State as justifications for the burden imposed by its rule,” taking into consideration “the extent to which those interests make it necessary to burden the plaintiff‘s rights.”
See Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789).
b.
Against this backdrop, we must analyze whether Maryland‘s interests outweigh the burdens, however slight, imposed on Fusaro‘s rights. Fusaro asserts that his burdens amount to inconvenience and restrictions placed on his speech activity. He maintains that Maryland‘s stake in both protecting voter privacy and encouraging voter registration is “legally dubious” and “contradicted by evidence.” See J.A. 205. Fusaro also insists that it
For its part, the State maintains that the Use Provision is both necessary and justified because it is essential to assuring “that those who chose to register to vote will not, by doing so, potentially become inundated with non-electoral-process-related communications through broad access to Maryland‘s voter list.” See J.A. 379. In response to Fusaro‘s contention that the List is a “uniquely cheap and powerful tool” that is now accessible regardless of an applicant‘s residency status, see Br. of Appellant 10, thе State avers that, without the Use Provision, the List would be subject to “easy manipulation” and “exploitation in a way that individual voter registration records . . . available through local board offices are not.” See Br. of Appellee 25. Further, the State asserts an interest in protecting the health of Maryland‘s electoral process by safeguarding Maryland registered voters from harassment and abuse, protecting the privacy of personal information, and encouraging both voter registration and participation. Id. at 32-33.
In these circumstances, we are persuaded that the State‘s asserted interests are legitimate. As the district court carefully explained, Maryland‘s
desire to promote voter registration while minimizing abuse of the List is furthered by limiting use of the List to electoral purposes. Use of the List is permitted for any electorаl purpose, without regard to the message. Conversely, no use of the List is allowed, regardless of the message, if it is unrelated to the electoral process. The State has determined that its citizens should not face an onslaught of communication or solicitations irrelevant to the electoral process as the price of participation in the electoral process. It is both reasoned and credible that Maryland would impose a modest burden in order to advance the interest it has identified.
Put simply, the burden imposed on Fusaro is modest. As a condition of access, Fusaro must agree to use the List for purposes related to the electoral process. If he does not wish to abide by such an arrangement, a plethora of alternative avenues of recourse remain open to him.11 Additionally, the burden imposed by the Use Provision is entirely viewpoint-neutral. As we explained in Fusaro, “the sole content-based distinction in [the Use Provision]” is “similarly benign” because the limit on use of the List for an electoral purpose “is politically neutral — that is, it does not distinguish between viewpoints, economic classes, or political affiliations.” See 930 F.3d at 263. The Use Provision does not discriminate against disfavored positions or political groups. Instead, it requires the List be used exclusively for purposes related to the electoral process.
Furthermore, the State‘s asserted interests for maintaining the Use Provision are not novel, and restricting access on how a state voter list can be utilized is not a unique proposition either. See, e.g., R.I. Ass‘n of Realtors, Inc. v. Whitehouse, 51 F. Supp. 2d 107, 113 (D.R.I. June 9, 1999) (explaining that State of Rhode Island has legitimate and
Indeed, the Maryland General Assembly has expressly determined that, in order to protect Maryland registered voters from harassment and abuse, use of the List should be limited to those applicants who certify that they will use it for purposes that are related to the electoral process. We must give due regard to Maryland‘s determination that its “citizens should not face an onslaught of communication[s] or solicitations irrelevant to the electoral process as the price of participation in the electoral process.” See Fusaro, 472 F. Supp. 3d at 259. And we are satisfied that the Use Provision imposes a reasonable, nondiscriminatory burden and is justified as a means for enforcing “comprehensive and . . . complex elections codes.” See Anderson, 460 U.S. at 788.
In sum, we conclude that the Use Provision — as applied to Fusaro — does not run afoul of the Free Speech Clause. When weighed against the State‘s interests — that is, safeguarding the List, protecting Maryland‘s election system, and shielding Maryland registered voters from harassment — the burden imposed on Fusaro is modest. We are satisfied that the State has thus met its burden under the Anderson-Burdick balancing test.
We consider next Fusaro‘s claim that the Use Provision, as applied to him, is unconstitutionally vague under the First and Fourteenth Amendments. The district court concluded that the vagueness claim fails because Fusaro understands the Use Provision‘s reach. We agree with that assessment.
1.
The First Amendment protects free speech, and the Fourteenth Amendment makes those protections applicable to the states. See Edwards, 178 F.3d at 245 n.10. The Fourteenth Amendment‘s Due Process Clause provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” See
We recently observed that a state statute is “unconstitutionally vague under the Fourteenth Amendment‘s Due Process Clause if it ‘fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory еnforcement.‘” See Martin v. Lloyd, 700 F.3d 132, 135 (4th Cir. 2012) (quoting United States v. Williams, 553 U.S. 285, 304 (2008)); see also City of Chicago v. Morales, 527 U.S. 41, 56-57 (1999). As such, “the void for vagueness doctrine addresses at least two connected but discrete due process concerns.” See FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012). The first concern is that regulated
Consequently, we must focus on whether the government‘s policy is “set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and cоmply with.” See Broadrick v. Oklahoma, 413 U.S. 601, 608 (1973). That inquiry is aided by both “dictionary definitions and old-fashioned common sense.” See Wag More Dogs, 680 F.3d at 371; see also United States v. Shrader, 675 F.3d 300, 310 (4th Cir. 2012) (explaining that a statutory term is “adequately defined by reference to judicial decisions, common law, dictionaries, and the words themselves because they possess a common and generally accepted meaning” (internal quotation marks omitted)).12
Here, the district court concluded that the Use Provision is not unconstitutionally vague as applied to Fusaro. The court‘s opinion emphasized that, as a matter of Maryland statutory interpretation, Fusaro is not “lost at sea.” See Fusaro, 472 F. Supp. 3d at 266.
We agree. For starters, Fusaro points us to Black‘s Law Dictionary for guidance, which defines the phrase “electoral process” as: “1. The method by which a person is elected to public office in a democratic society. 2. The taking and сounting of votes.” See Electoral Process, Black‘s Law Dictionary (11th ed. 2019). That definition comports with “old-fashioned common sense” in understanding the Use Provision‘s contours and it “adequately defines the prohibited conduct” at issue in this litigation. See Shrader, 675 F.3d at 310. That is, Fusaro‘s use of the List to send his letters concerning the unelected State Prosecutor is conduct proscribed by the Use Provision. Additionally, the fact that Maryland‘s Election Law does not expressly define “electoral process” is of no moment. We do not find impermissible vagueness “simply because [the statute] does not include the most elaborate or the most specific definitions possible.” See Shrader, 675 F.3d at 310.13
Nevertheless, Fusaro contends that the Use Provision contains “nebulous term[s] that may be only defined at a later date by a bureaucratic fiat.” See Br. of Appellant 17. The problem for Fusaro is that, even with the bеnefit of discovery in the remand
Nor was this an isolated admission. The Complaint was replete with similar statements, all of which indicate that Fusaro understands the Use Provision‘s reach relative to his letters concerning the unelected State Prosecutor. See Complaint ¶ 26 (acknowledging that the letter Fusaro intends to send is “not related to the electoral process“); id. ¶ 20 (“Davitt is not an elected official, the mailer does not advocate for the election or defeat of a candidate or ballot measure . . . or mention a candidate for office or ballot measure.“); id. ¶ 22 (“In the future, Fusaro would send other letters and noncommercial materials that relate to issues of local and national political importance, but not the electoral process.“); id. ¶ 26 (“Fusaro will refrain from sending his letter and many future communications, because they are not related to the electoral process . . . .).14
C.
Lastly, we assess Fusaro‘s facial challenges to the Use Provision, on both free speech and vagueness grounds. “To succeed in a facial constitutional challenge, a movant ‘must establish that no set of circumstances exists under which [an act] would be valid.‘” See United States v. Hosford, 843 F.3d 161, 165 (4th Cir. 2016) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). That is a particularly demanding standard and is the “most difficult challenge to mount successfully.” See Salerno, 481 U.S. at 745. The
We first assess Fusaro‘s claim that the Use Provision facially contravenes the Free Speech Clause, followed by his claim that the phrase “related to the electoral process” is facially vague. We agree with the district court that those facial challenges are meritless.
1.
First, Fusaro‘s facial challenge to the Use Provision under the Free Speech Clause necessarily fails. As the Second and Third Circuits have recognized, “if a litigant loses an as-applied challenge because the court rules as a mаtter of law that the statute or ordinance was constitutionally applied to [him], it follows a fortiori that the law is not unconstitutional in all applications.” See Knick v. Twp. of Scott, 862 F.3d 310, 321 (3d Cir. 2017) (citing Dickerson v. Napolitano, 604 F.3d 732, 741 (2d Cir. 2010)). Here, we have already concluded that, as applied, the Use Provision does not violate Fusaro‘s rights under the Free Speech Clause. As such, Fusaro is unable to establish that “no set of circumstances exist under which [the Use Provision] would be valid.” See Hosford, 843 F.3d at 165.
2.
Second, Fusaro‘s facial vagueness challenge to the Use Provision also fails. A party may pursue a facial vagueness challenge “to vindicate not only his own rights, but those of others who may also be adversely impacted by the statute in question.” See Morales, 527
Here, the district court concluded that, under the Supreme Court‘s Hoffman Estates and Holder decisions, Fusaro cannot complain of the Use Provision‘s facial vagueness because his conduct is “clearly proscribed.” See Fusaro, 472 F. Supp. 3d at 267. Although Holder involved a vagueness challenge under the Fifth Amendment‘s Due Process Clause, Expressions Hair Design v. Schneiderman recognized that its reasoning applies to a facial vagueness challenge pursued under the Fourteenth Amendment. See 137 S. Ct. 1144, 1151-52 (2017) (citing Holder, 561 U.S. at 20); see also Cahaly v. Larosa, 796 F.3d 399, 407 (4th Cir. 2015) (ruling that there could be no facial vagueness challenge to a state anti-robocall statute for political calls when conduct was clearly proscribed). Because we have already concluded that Fusaro‘s conduct is clearly proscribed — that is, it is clear the letters he wishes to send concerning the unelected State Prosecutor are not “related to the electoral process” and not permissible uses of the List — we are obliged to adhere to the rule enunciated by the Supreme Court in Expressions Hair Design. We therefore reject Fusaro‘s facial vagueness challenge to the Use Provision.
Pursuant to the foregoing, we are satisfied to affirm the judgment of the district court.
AFFIRMED