This litigation involves a First Amendment challenge to Md. Code (2017 Repl. Vol., 2017 Supp.), § 3-506 of the Election Law Article ("E.L."). Under this statute, plaintiff Dennis Fusaro was denied access to a copy of Maryland's list of registered voters (the "List") because he does not live in Maryland and is not a Maryland registered voter. Fusaro sought such information for the 2014 Maryland gubernatorial primary and general election, and the 2016 presidential primary and general election. ECF 1-3 at 2.
Fusaro, a resident and registered voter of Virginia, has filed a complaint for declaratory and injunctive relief against a host of defendants in their official capacity: Emmet Davitt, the Maryland State Prosecutor; David McManus, Jr., Chair of the Maryland State Board of Elections (the "Board"); Patrick Hogan, Vice Chair of the Board; and Board Members Michael Cogan, Kelley Howells, and Gloria Lawlah.
In Count II, Fusaro claims that E.L. §§ 3-506(a)(1)(ii) and (c) create an unconstitutional restriction on speech because § 3-506(a)(1)(ii) requires that one who obtains the List cannot use it for "any...purpose not related to the electoral process," and E.L. § 3-506(c) provides: "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...."
Fusaro has also filed a Motion for Preliminary Injunction (ECF 17), supported by a memorandum of law (ECF 17-1) (collectively, the "PI Motion"). He asks the Court to enjoin McManus, Hogan, Cogan, Howells, and Lawlah from enforcing E.L. § 3-506(a)(1). See ECF 17 at 1. In addition, Fusaro asks the Court to enjoin all defendants from enforcing E.L. §§ 3-506(a)(1)(ii)(2) and (c). Id.
Defendants have filed a consolidated Motion to Dismiss the Complaint ("Motion" or "Motion to Dismiss") and Opposition to the PI Motion (ECF 20), supported by a memorandum of law (ECF 20-1) and exhibits. See ECF 20-2 and ECF 20-3. Plaintiff filed a consolidated Opposition to the Motion to Dismiss and Reply to the PI Motion (ECF 21), supported by an exhibit. See ECF 21-1. Defendants have replied as to the Motion to Dismiss. See ECF 22.
No hearing is necessary to resolve the motions. See Local Rule 105.6. For the reasons that follow, I shall grant the Motion to Dismiss as to Count I of the Complaint. Therefore, I need not address the Motion with regard to Count II. And, because plaintiff cannot demonstrate a reasonably likelihood of success on the merits of his Complaint, I shall deny the PI Motion.
I. Factual and Procedural Background
The Board oversees the administration of elections in Maryland, including compliance with E.L. § 3-506. See ECF 20-1 at 11; ECF 1. Of relevance here, the Board must provide reasonable access to "original voter registration applications" and "other voter registration records," E.L. § 3-505, without limitation to registered voters or specific purposes. Moreover, under Code of Maryland Regulations ("COMAR") 33.04.01.03A, "[a]ny person may request to inspect or copy a public record that is in the custody and control of the State Board or a local board [of election.]" Therefore, as the defendants observe, some of these records "may contain similar information to that found in the [L]ist." ECF 20-1 at 12.
Davitt is the Maryland State Prosecutor, a position established by Title 14 of the Criminal Procedure Article ("C.P.") of the Maryland Code (2008 Repl. Vol., 2017 Supp.). As State Prosecutor, Davitt is empowered to investigate and prosecute, inter alia , "a criminal offense under the State election laws" and "a violation of the State...perjury...laws related to" those "election laws...." C.P. §§ 14-107(a)(1)(i), (a)(1)(v), 14-109(a). The Office of the State Prosecutor is an independent unit within the Office of the Attorney General. C.P. § 14-102(a)(2). He is appointed by the Governor, with the advice and consent of the Maryland Senate. C.P. § 14-102(c)(1).
As noted, Fusaro is a resident and registered voter in Virginia. ECF 1, ¶¶ 4, 9. But, he has "experience in Maryland politics." ECF 1, ¶ 16. In 2014, he worked as "campaign manager and consultant" for the successful campaign of Michael Peroutka, who was running for a seat on the Anne Arundel County Council. See ECF 1, ¶ 16; ECF 20-2 (Criminal Summons and Information forms of Dennis Fusaro, District Court for Anne Arundel County, dated April 13, 2016) at 5. In 2007 and 2008, Fusaro was National Field Director for Ron Paul for President. ECF 1, ¶ 17.
In his Complaint, Fusaro recounts that "[o]n February 21, 2017, [he] was convicted in a bench trial" in the District Court for Anne Arundel County "for failure to include a campaign finance disclaimer on an automated phone call that cost under $100 to facilitate....He was sentenced to 30 days in jail and a $1,000 fine." ECF 1, ¶ 1; see State of Maryland v. Fusaro , D-07-CR-16-000734 (D. Ct. Md. Anne Arundel Cty. Feb. 21, 2017). However, Fusaro noted a de novo appeal to the Circuit Court for Anne Arundel County. There, following a jury trial, he was acquitted on August 3, 2017. ECF 1, ¶ 1; see State of Maryland v. Fusaro , C-02-CR-17-000351 (Cir. Ct. for Anne Arundel Cty., Aug. 3, 2017).
The trials followed a two-count Criminal Information (ECF 20-2 at 5-7), issued by Davitt on April 13, 2016 (ECF 20-2 at 4), charging Fusaro with violations of Maryland election law. Specifically, Fusaro was charged with willfully causing the publication and distribution of campaign materials in Anne Arundel County (the "County") on October 31, 2014, in violation of E.L. §§ 13-602 and 13-401. See ECF 20-2 at 5-6. Fusaro was also charged with conspiracy to publish and distribute campaign materials in the County, between October 8, 2014 and November 20, 2014, in violation of E.L. §§ 13-602 and 13-401. See ECF 20-2 at 7.
As to Count I, the Criminal Information alleged that Fusaro, as Peroutka's campaign manager in 2014, caused the dissemination of more than 5,000 automated telephone calls about Peroutka's opponent,
The State Prosecutor allegedly traced the telephone calls to a prepaid cell phone that had been purchased by Fusaro. See ECF 20-2 at 6. According to the Criminal Information, the robotic telephone calls contained the following message, id. at 5-6:
Hello, what a great opportunity for the LGBT community. We have a true believer for our cause in Patrick Armstrong who's running for County Council in Anne Arundel County, Maryland. Call Patrick today and thank him for his bravery in coming out of the closet. Coming out of the closet and supporting the fairness to all Marylander's [sic] Act, the Maryland State Senate Bill 212, and supporting the rights for all transgenders. Transgenders can now openly and freely go into any bathroom of their choice based on their confused gender identity. Tell Patrick to continue to stand loud and proud in support for transgenders' equal rights. While our opponent argued that children could be at risk by sexual predators with this new law, we celebrate the rights of transgenders and what this does for equality for transgenders in Maryland. Call him today at [phone number redacted] and thank him for supporting the bathroom bill. Paid for and authorized by Marylander's [sic] for Transgenders.
E.L. § 13-602(a)(9) states, id. : "A person may not publish or distribute, or cause to be published or distributed, campaign material that violates § 13-401 of this title." E.L. § 13-401 requires, inter alia , that campaign materials indicate the name and identity of the person or entity responsible for publishing or distributing the campaign materials. See E.L. §§ 13-401(a)(1), (a)(2), (a)(3), (b).
On August 24, 2017, some three weeks after Fusaro's acquittal in the Circuit Court for Anne Arundel County, Fusaro submitted an Application for Voter Registration Data to the Board (ECF 1-2 at 2) ("Application"), requesting that the List be placed on a compact disc ("C.D.") and mailed to Fusaro at his Virginia Post Office address. Id. ; see also id. at 3 (photocopies of two money orders, in the total amount of $128.00, to pay the required Application and C.D. fees). On the Application, Fusaro indicated that he is a Virginia resident. ECF 1-2 at 2.
The Application contained an oath, providing, in part, ECF 1-2 at 2: "Under penalty of perjury, I hereby declare, as required by Election Law Article, § 3-506, Annotated Code of Maryland , that the list of registered voters for which I am applying is not intended to be used for commercial solicitation or for any other purpose not related to the electoral process ...." (Bold and italics in original). Fusaro signed the Application. Id.
Fusaro submitted as an exhibit to the suit a returned copy of the Application (ECF 1-3) ("Rejected Application"), dated August 28, 2017, which bears the word "REJECTED" and the initials "EWD." Email correspondence between Fusaro and Erin W. Dennis, a Board employee, dated September 4, 2017 and September 6, 2017, indicates that the initials "EWD" on the Rejected Application are those of Ms. Dennis. See ECF 1-4 (emails between Fusaro and Ms. Dennis). In the email exchange,
Fusaro explains that he wants the List in order "to share his story with Maryland citizens" concerning his prosecution and subsequent acquittal for the alleged violations of Maryland campaign finance law. ECF 1, ¶ 2. According to Fusaro, he wants to "express his frustration with the Maryland State Prosecutor and encourage Marylanders to echo his concern by encouraging Davitt to resign." Id. Therefore, Fusaro seeks to communicate with Maryland citizens "via U.S. Mail with letters addressed to certain Maryland registered voters, drawing [names and contact information] from" the List. Id. ¶ 3.
Fusaro has submitted a copy of the document he seeks to mail to certain Maryland registered voters. See ECF 1-1 (the "Letter"). The Letter states, in part, id. :
One example of the failure to uphold the principles of both the U.S. and Maryland Constitutions can be found in the person of the Maryland State Prosecutor, a man named Emmett C. Davitt.
Davitt was appointed to this office, and his term expired in 2016, but he has remained in that office in so-called "holdover" status. He continues to collect his taxpayer-funded salary and attack First Amendment free speech rights under the color of law.
I experienced this censorship first hand. I was charged with violating state campaign finance laws for a speech communication that cost under $100. Davitt wanted me to serve thirty (30) days in jail for speaking out. Thankfully, a jury of my peers found me not guilty in my second trial. Davitt's next target may not be so lucky.
As a Maryland government official, Davitt breaks the law by misusing his power to infringe on constitutionally-protected individual free speech rights. He acts under the "color of law" to violate the law and disobey the oath he swore to uphold and defend the U.S. and Maryland Constitutions against all enemies foreign and domestic. In fact, he himself has become an enemy of the Constitution and the rule of law.
Please call Davitt at...(toll free) or email him at....
Ask him to do the right thing. Tell him to resign.
B.
As to Count I of the Complaint, Fusaro asserts that the Maryland registered voter requirement in E.L. § 3-506(a)(1) is unconstitutional under the First and Fourteenth Amendments. ECF 1 at 6. He asserts that "[b]y limiting access to the registered voter list to Maryland registered voters, E.L. § 3-506(a)(1) selectively advantages some political speakers," i.e. , Maryland registered voters, "and disadvantages others," i.e. , those who are not Maryland registered voters. ECF 1, ¶ 30. Although Fusaro acknowledges that he may acquire the same voter registration information from Maryland through other "means," he contends that those means are "more time-consuming and expensive." Id. ¶ 31.
In Count II, Fusaro alleges that "limiting the use of the List of Registered Voters to purposes 'related to the electoral process' in E.L. §[§] 3-506(a)(1), (c) is unconstitutional under the First and Fourteenth Amendments." ECF 1 at 7. In particular, because Davitt is an appointed official, Fusaro claims that his proposed Letter does not relate to the electoral process. ECF 1, ¶¶ 34, 35. Specifically, "Fusaro's letter does not...call for Davitt's election or defeat...." ECF 1, ¶ 35. The Letter "has nothing to do with an election" and is "not related to the electoral
According to Fusaro, "limiting use of the voter list to purposes 'related to the electoral process' is a content-based restriction that prohibits the use of the registered voter list for political speech that is entitled to just as much protection as election-related speech." Id. ¶ 38. Further, he alleges that the "law serves no compelling interest, and is not properly tailored to serve any governmental interest." Id.
Additional facts are included in the Discussion.
II. Standard of Review
Defendants have moved to dismiss, arguing, inter alia , that E.L. § 3-506(a) regulates access to government-held records, to which Fusaro lacks a First Amendment right of access. See ECF 20-1 at 8-14. Therefore, defendants aver that Fusaro has failed to state a claim under the First Amendment. Id. at 7. Accordingly, defendants ask the Court to dismiss the Complaint as well as the PI Motion. Id. at 34.
A defendant may test the legal sufficiency of a complaint by way of a motion to dismiss under Rule 12(b)(6). In re Birmingham ,
Whether a complaint states a claim for relief is assessed by reference to the pleading requirements of Fed. R. Civ. P. 8(a)(2). That rule provides that a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." The purpose of the rule is to provide the defendants with "fair notice" of the claims and the "grounds" for entitlement to relief. Bell Atl. Corp. v. Twombly ,
To survive a motion under Fed. R. Civ. P. 12(b)(6), a complaint must contain facts sufficient to "state a claim to relief that is plausible on its face." Twombly ,
Nevertheless, the rule demands more than bald accusations or mere speculation. Twombly ,
In reviewing a Rule 12(b)(6) motion, a court "must accept as true all of the factual allegations contained in the complaint" and must "draw all reasonable inferences [from those facts] in favor of the plaintiff." E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc. ,
Courts generally do not " 'resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses' " through a Rule 12(b)(6) motion. Edwards,
In evaluating the sufficiency of a complaint in connection with a Rule 12(b)(6) motion, a court ordinarily "may not consider any documents that are outside of the complaint, or not expressly incorporated therein...." Clatterbuck v. City of Charlottesville,
However, "before treating the contents of an attached or incorporated document as true, the district court should consider the nature of the document and why the plaintiff attached it." Goines ,
A court may also "consider a document submitted by the movant that was not attached to or expressly incorporated in a complaint, so long as the document was integral to the complaint and there is no dispute about the document's authenticity." Goines ,
As indicated, Fusaro submitted several exhibits with his suit. See ECF 1-1 (the Letter); ECF 1-2 at 2 (the Application); ECF 1-2 at 3 (photocopies of money orders used by Fusaro to pay Application and C.D. fees); ECF 1-3 (the Rejected Application); ECF 1-4 (email correspondence between Fusaro and Ms. Dennis, dated September 4, 2017, and September 6, 2017). Because these exhibits were submitted with the suit, I may consider them without converting the Motion to Dismiss to one for summary judgment. See Goines ,
Defendants have also submitted exhibits. See ECF 20-2 (publically available court documents pertaining to the 2016 prosecution of Fusaro in the District Court for Anne Arundel County); ECF 20-3 (the publically available Application for Voter Registration Data). A court "may properly take judicial notice of 'matters of public record' and other information that, under Fed. R. Evid. 201, constitute 'adjudicative facts.' " Goldfarb ,
In particular, pursuant to Fed. R. Evid. 201, a court may take judicial notice of adjudicative facts if they are "not subject to reasonable dispute," in that they are "(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." And, courts may take judicial notice of publicly available records without converting a motion to dismiss to one for summary judgment. See, e.g. ,
Court documents from the prosecutions of Fusaro, including the materials submitted at ECF 20-2, are available to the public. Additionally, the State of Maryland Application for Voter Registration Data, submitted as ECF 20-3, is publically available.
Moreover, plaintiff has submitted an exhibit with his Opposition to the Motion to Dismiss. See ECF 21-1 (Final Judgment on Consent, signed by District Judge Rudi M. Brewster and the parties to United Reporting Publishing Corp. v. Cal. Highway Patrol, B-AJB-96-888 (S.D. Cal. Aug. 14, 2001) ). The court document, filed as ECF 21-1, is available to the public. Accordingly, I may take judicial notice of it.
III. Discussion
A. Motion to Dismiss
As noted, on August 24, 2017, Fusaro submitted his Application for the List to the Board. ECF 1-2 at 2. On the Application, Fusaro stated that he is a Virginia resident.
Fusaro does not dispute the veracity of the Board's stated reason for the denial of the Application. See, e.g. , ECF 1, ¶ 30. Nor does he argue that the Application was rejected because of any intent by Fusaro to use the List for the purpose of engaging in political speech. See ECF 1, ¶ 30; ECF 1-3; ECF 1-4. Rather, he contends that limiting access to the List to Maryland registered voters "selectively advantages some political speakers and disadvantages others."
According to Fusaro, E.L. § 3-506(a)(1) violates the First Amendment because, under that provision, only Maryland registered voters can obtain a copy of the List from the Board. See ECF 1, ¶ 30. Defendants argue that Fusaro has failed to state a claim. ECF 20-1 at 7, 27.
In their Motion, defendants contend that Fusaro does not have a First Amendment right to the List. See ECF 20-1 at 8-14. They note that the Board rejected Fusaro's application because he is not a Maryland resident or a Maryland registered voter. ECF 1-4 at 3. The Board did not determine whether plaintiff's proposed use of the List was "related to the electoral process."
In addition, defendants observe that there are almost four million registered voters in Maryland. The Application for Voter Registration Data (ECF 20-3) indicates that the "Registered Voters List" contains name, party, gender, residential address, mailing address and other personal information. They describe it as a "trove of sensitive information," maintained at the expense of Maryland taxpayers. ECF 20-1 at 12.
E.L. §§ 3-506(a) and (c) state:
(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 this article.
E.L. §§ 16-501(a)(1) and (a)(2) provide: "A person may not willfully and falsely take an oath or affirmation prescribed (1) by the State Board; or (2) pursuant to this article." And, E.L. § 16-501(c) states: "Any person who violates subsection (a) of this section is guilty of perjury and shall be punished according to the laws of the State for perjury." Pursuant to Md. Code (2012 Repl. Vol., 2017 Supp.), § 9-101(b) of the Criminal Law Article, perjury is a misdemeanor that, upon conviction, shall result in "imprisonment not exceeding 10 years."
The First Amendment provides, in relevant part: "Congress shall make no law...abridging the freedom of speech, or of the press...." U.S. CONST. amend. I. It applies to the states pursuant to the Fourteenth Amendment. See Stromberg v. California,
However, "[n]either the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government's control." Houchins v. KQED, Inc. ,
The case of Houchins v. KQED, Inc. ,
The District Court preliminarily enjoined the Jail from denying access to the plaintiffs.
Before the Supreme Court, KQED and the NAACP contended, inter alia , that the First Amendment contains "an implied special right of access to government-controlled sources of information."
The Court concluded,
There is no discernible basis for a constitutional duty to disclose, or for standards governing disclosure of or access to information. Because the Constitution affords no guidelines, absent statutory standards, hundreds of judges would...be at large to fashion ad hoc standards, in individual cases, according to their own ideas of what seems "desirable" or "expedient." We, therefore, reject the ... conclusory assertion that the public and the media have a First Amendment right to government information....
There is no constitutional right to have access to particular government information, or to require openness from the bureaucracy. The public's interest in knowing about its government is protected by the guarantee of a Free Press, but the protection is indirect. The Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act.
(Citations omitted; some quotation marks omitted); accord
The case of United Reporting ,
United Reporting filed suit, arguing that § 6254(f)(3) was unconstitutional under the First and Fourteenth Amendments. See
The Supreme Court disagreed and reversed, concluding that United Reporting "was not...entitled to prevail on a 'facial attack' of § 6254(f)(3)."
Prototypical exceptions to this traditional rule are First Amendment challenges to statutes based on First Amendment overbreadth. 'At least when statutes regulate or proscribe speech...the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.
(Quoting Gooding v. Wilson,
Moreover, the Court noted that "the overbreadth doctrine is not casually employed. 'Because of the wide-reaching effects of striking down a statute on its face at the request of one whose own conduct may be punished despite the First Amendment, [the Court] ha[s] recognized that the overbreadth doctrine is 'strong medicine' and ha[s] employed it with hesitation, and then 'only as a last resort.' " United Reporting ,
According to the Court,
The Court concluded that United Reporting "may seek access under the statute on their own...without incurring any burden other than the prospect that their request will be denied. Resort to a facial challenge here is not warranted because there is '[no] possibility that protected speech will be muted.' "
In Justice Scalia's concurring opinion in United Reporting , joined by Justice Thomas, Justice Scalia noted that the Court did not address "whether a restriction upon access [to government information] that allows access to the press (which in effect makes the information part of the public domain), but at the same time denies access to persons who wish to use the information for certain speech purposes, is in reality a restriction upon speech rather than upon access to government information...."
Justice Ginsburg also wrote a concurring opinion, joined by Justices O'Connor, Souter, and Breyer. She said,
Justice Stevens dissented, joined by Justice Kennedy. He wrote,
Therefore, six justices agreed that a state violates the First Amendment by limiting access to government-held information when the restriction is based on one's political viewpoint or party affiliation. See
The case of Sorrell v. IMS Health, Inc. ,
Two suits were filed and consolidated, challenging Vermont's law under the First and Fourteenth Amendments.
On appeal, the Supreme Court noted that the Vermont Law "disfavors marketing, that is, speech with a particular content."
Notably, the Court distinguished Sorrell from United Reporting in several important ways.
Additionally, the Sorrell Court said,
Further, the Sorrell Court noted that United Reporting had not sworn the required oath to obtain the California records, and the United Reporting Court had "assumed" the plaintiff "had not suffered a personal First Amendment injury and could not prevail only by invoking the rights of others through a facial challenge."
The Sorrell Court pointed to the concurring and dissenting opinions in United Reporting ,
As the Supreme Court said in Houchins ,
The Board's rejection of Fusaro's Application is not entirely akin to Houchins . In Houchins , the Jail denied access to the press and to the public at large.
Notably, Fusaro's suit is also different from Sorrell , where the state had "imposed a restriction on access to information in private hands."
As noted, Fusaro does not dispute that he was denied access to the List because
Indeed, the residency restriction in E.L. § 3-506(a)(1)(i) is a reasonable threshold limitation on access to State records; it does not violate the Constitution. See cf. McBurney v. Young ,
In my view, given plaintiff's status as a Virginia resident, he has no First Amendment right to obtain a copy of the List from the Board. Accordingly, Count I fails to state a claim under the First Amendment.
Because Count II of the Complaint is predicated on Fusaro having a First Amendment right to obtain the List (see ECF 1, ¶ 3; ECF 21 at 21), I need not reach Count II.
A. Motion For Preliminary Injunction
"A preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. Natural Res. Def. Council, Inc. ,
Thus, "[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter ,
Because Fusaro lacks the First Amendment right to obtain the List from the Board, he cannot succeed on the merits of his suit. Therefore, the PI Motion is subject to dismissal.
IV. Conclusion
For the foregoing reasons, defendants' Motion to Dismiss shall be granted. And, Fusaro's PI Motion shall be denied. An Order follows.
Notes
It appears that Lawlah is no longer a Member of the Board, and has been replaced by Malcolm Funn. See Maryland.gov, State Board of Elections (last visited August 5, 2018), http://elections.maryland.gov/about/index.html. Lawlah was a Board Member from 2016 through an unspecified date in 2018. See Maryland Manual On-Line, Secretaries, Department of Aging, Gloria Gary Lawlah (last visited August 5, 2018), http://msa. maryland.gov/msa/mdmanual/10da/former/html/msa12153.html.
Plaintiff states in the Complaint: " 'The First Amendment applies to action[s] at the state and local level through the Fourteenth Amendment.' " ECF 1, ¶ 29 (quoting Snyder v. Phelps ,
Fusaro later filed correspondence "to inform the Court" of the Supreme Court's decision in Minnesota Voters Alliance v. Mansky , --- U.S. ----,
As discussed, infra , in the posture of this case, I must assume the truth of the facts alleged by Fusaro. And, I may consider exhibits appended to the suit and take judicial notice of public records, without converting the Motion to one for summary judgment.
Defendants refer to the calls as "robo-calls." ECF 20-1 at 8.
In Fusaro's Opposition to the Motion to Dismiss, he indicates some doubt as to whether Count II is ripe for adjudication. Plaintiff states, ECF 21 at 21: "[W]ithout access to the registered voter list, Fusaro does not have standing to challenge the content restrictions placed on its use [in Count II]....Count II is ripe for review the very moment the Court rules in favor of Fusaro for Count I."
See State of Maryland, Application for Voter Registration Data (last visited August 3, 2018), https://elections.maryland.gov/pdf/SBEAPPL.pdf.
Although Houchins ,