DENNIS FUSARO v. CHARLTON T. HOWARD III, et al.
Civil Action No. ELH-17-3582
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
July 14, 2020
This litigation involves a constitutional challenge under the
The Maryland State Prosecutor serves pursuant to appointment by the Governor; the position is not an elected office. As discussed, infra, Davitt previously prosecuted Fusaro for a Maryland campaign finance violation. Fusaro was ultimately acquitted. Fusaro sought a copy of the List in order to contact Maryland voters to complain about Davitt.
I. Procedural Summary
Count I of the suit concerns access to the List. Fusaro alleges that
Count II of the suit concerns use of the List. Fusaro claims that
On appeal, the Fourth Circuit vacated and remanded. Fusaro v. Cogan, 930 F.3d 241 (4th Cir. 2019). The Court determined that Fusaro stated a claim under the
Following the remand, the parties engaged in discovery. Thereafter, upon completion of discovery, Fusaro moved for summary judgment (ECF 53), supported by a memorandum of law (ECF 53-1) (collectively, the “Fusaro Motion”), and several exhibits. ECF 53-2 to ECF 53-12. The State filed a combined opposition and cross-motion for summary judgment (ECF 56), supported by a memorandum of law (ECF 56-1) (collectively, the “State Motion”). The State also submitted several exhibits. ECF 56-4 to ECF 56-11; ECF 58. Plaintiff‘s Reply is docketed at ECF 59. The State‘s Reply is found at ECF 60.
In addition, Fusaro has moved to file a supplemental complaint (ECF 41), supported by a memorandum of law. ECF 41-1 (collectively, the “Supplemental Complaint Motion”). The
The proposed Supplemental Complaint is largely the same as the initial Complaint. Like the original Complaint, it contains two counts. In Count I, concerning access to the List, plaintiff alleges that
As to Count I of the Complaint, which Fusaro expressly incorporates into his Supplemental Complaint (ECF 41-2, ¶ 27), Fusaro reiterates that, “[b]y limiting access to the registered voter list to Maryland registered voters,
No hearing is necessary to resolve the motions. See Local Rule 105.6. For the
II. Factual Background1
As of November 1, 2019, there were more than 4.2 million Maryland registered voters. ECF 53-7 (Defendants’ answers to discovery requests) at 4.
The Board oversees the administration of elections in Maryland, as well as compliance with
The statute provides, in part:
§ 3-506. Copies of list.
(a) Providing—Registered Voter.— (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) Prohibited act and penalties.—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.
Regarding the oath,
The application shall contain an affidavit, signed by the applicant, in substantially the following form:
Under the penalties of perjury, I declare that no part of any list requested by this application is intended to be used for commercial solicitation or for any other purpose that is not related to the electoral process.
I am aware that if I or any other person who has a registration list under his or her control knowingly allows any part of that list to be used for commercial solicitation or for any other purpose that is not related to the electoral process, that individual is guilty of a misdemeanor and, on conviction, subject to imprisonment for not less than 30 days or more than 6 months, to a fine of up to $250, or to both imprisonment and fine.
Significantly,
As the Fourth Circuit observed in Fusaro, id., “[t]he List itself does not convey any message or idea, and the limits placed on access to it do not directly impede the flow of information” because “other means of communication remain open.” Indeed, “[a]ccess to the List . . . is several steps removed from . . . democratic participation. In short, the List remains a useful tool for communication but not a form of actual speech.” Id. (emphasis in Fusaro).
B.
When Fusaro filed suit, Davitt was the Maryland State Prosecutor, a position established by
In 2014, Fusaro worked as “campaign manager and consultant” to the successful campaign of Michael Anthony Peroutka, who was running for a seat on the Anne Arundel County Council. See ECF 20-2 at 5; ECF 53-11 at 6, Tr. 30-31 (Deposition of Fusaro); see also ECF 20-2 (Criminal Summons and Information forms of Dennis Fusaro, District Court of Maryland for Anne Arundel County, dated April 13, 2016) at 5; ECF 1, ¶ 16.
On or about October 31, 2014, Fusaro allegedly caused “the publication and distribution of more than 5,000 automated telephone calls regarding Patrick Armstrong, the candidate opposing Michael Anthony Peroutka for the Office of Anne Arundel County Council in the 2014 General Election. . . .” ECF 20-2 at 5. 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.
On April 13, 2016, Fusaro was criminally charged in the case of State of Maryland v. Dennis Fusaro, D-07-CR-16-734 (Dist. Ct. Md. Anne Arundel Cty.) with violations of
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 also State v. Fusaro, D-07-CR-16-000734 (D. Ct. Md. Anne Arundel Cty. Feb. 21, 2017). Thereafter, Fusaro noted a de novo appeal to the Circuit Court for Anne Arundel County. Id. On August 3, 2017, a jury in the Circuit Court for Anne Arundel County acquitted Fusaro of the charges. ECF 1, ¶ 1; see State v. Fusaro, C-02-CR-17-000351 (Cir. Ct. Md. Anne Arundel Cty. Aug. 3, 2017).
An editorial subsequently appeared in the Capital Gazette, a newspaper in Annapolis, titled “Prosecutor was right to bring robocall case.” ECF 56-5 at 2. Noting that Fusaro had been acquitted by a jury, the editorial, said, in part, id. at 2-3:
But whatever self-serving nonsense Fusaro and Waters dredge up, it is not unreasonable, let alone a plot to enforce “the establishment agenda,” to require that Marylanders be clearly told where a paid campaign ad came from. It‘s the minimum that can be done in an era when it‘s easy for misleading and dishonest material to get traction on social media.
Soon robocalls may be scorned as hopelessly old school. But in the meantime prosecutors like Davitt should do their best to uphold the state‘s laws. This will hardly end electoral dirty tricks, which have been around as long as elections. But having some basic rules to promote fairness is better than having none.
On August 24, 2017, a few weeks after Fusaro‘s acquittal, Fusaro submitted to the SBE an Application for Voter Registration Data (ECF 1-2 at 2) (hereinafter, the “Application”), requesting a copy of the List, on a CD. Id. The Application contains an oath that provides, in part, id.: “Under penalty of perjury, I hereby declare, as required by
The Board received the Application (ECF 1-3) on August 28, 2017. Id. It bears the word “REJECTED” and the initials “EWD” in red. And, the following words on the Application are circled in red: “Must be a Registered Maryland Voter.” Id.
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 correspondence, Ms. Dennis informed Fusaro that his Application “was rejected because [one] must be a Maryland resident and registered voter to request a copy of the [Maryland] voter registration list.” Id. As indicated, Fusaro is a resident of Virginia. ECF 1, ¶¶ 4, 9.
Fusaro submitted with his suit a copy of the document he wanted to mail to certain Maryland registered voters once he obtained access to the List. See ECF 1-1 (the “Letter”). The Letter stated, in part, id. (emphasis added):
Dear Maryland Citizen,
You are the ultimate maker of public policy in the State of Maryland. 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 behave in office.
* * *
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.
To be sure, the Letter stated that Fusaro was prosecuted for allegedly “violating state campaign finance laws” (ECF 1-1) in relation to his work as campaign manager and consultant for Peroutka‘s 2014 general election campaign. ECF 20-2 at 5. But, Fusaro concedes that the Letter “has nothing to do with an election” and that the Letter is “not related to the electoral process.” ECF 1, ¶¶ 5, 26. In particular, he contends that “Davitt is an appointed official, thus Fusaro‘s letter does not . . . call for Davitt‘s election or defeat . . . .” Id. ¶ 35.
As noted, Davitt no longer serves as the State Prosecutor. In light of the appointment of his successor, Fusaro submitted an updated letter with his Supplemental Complaint. ECF 41-3 at 2 (the “Updated Letter”). Fusaro seeks to send this letter “via U.S. mail. . . to certain Maryland registered voters, drawing from Maryland‘s registered voter list. ECF 41-2, ¶ 3.2. The Updated Letter states, in part, ECF 41-3 at 2:
Dear Maryland Citizen,
You are the ultimate maker of public policy in the state of Maryland. As 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.
If you don‘t speak up and speak out, these officials will often act according to their own self-interest rather than in pursuit of Constitutional Principles and the oaths they‘ve sworn to uphold them.
I experienced this first hand. I was charged with violating state campaign finance laws for a speech communication that cost under $100. State Prosecutor Emmet Davitt wanted me to serve thirty days in jail for speaking out. Thankfully, a jury of my peers found me not guilty in my second trial.
I wanted to tell you about this when it happened two years ago, but I ran into another problem: Maryland law prevented me from buying a copy of the state‘s registered voter list and, even then, threatened me with another prosecution if I used the list to tell you about my ordeal. I had to go to court yet again - all the way to the Fourth Circuit Court of Appeals - just to make a First Amendment case out of it.
With so many laws like this, Maryland government officials like Davitt can abuse their power to infringe on constitutionally-protected free speech rights. They can act under the “color of law” to disobey the oaths they swore to uphold and defend the U.S. and Maryland Constitutions against all enemies foreign and domestic. Too many public officials have become enemies of the Constitution and the rule of law.
State Prosecutor Davitt retired on August 1, 2019. Will his replacement be any better?
Please call the State Prosecutor‘s Office at . . . (toll free). Send a message to Davitt‘s replacement.
At his deposition on November 1, 2019 (ECF 58), Fusaro indicated that he originally wanted to send voters the Letter concerning Davitt because Davitt “made a statement after [Fusaro‘s] trial that they would keep going after people.” Id. at 16. He explained that he seeks to send the Updated Letter because “there‘s a risk that his previous example may be adopted by the current State prosecutor who may wish to continue his tyrannical policy of prosecuting free speech in Maryland in violation of the U.S. Constitution and Supreme Court precedent.” Id. at 45. He agreed that his purpose in sending the Updated Letter was to “send a message to the new
Further, Fusaro testified: “And politicians listen most carefully when their job is on the line. And so the voter list is a tool that people who can impact their behavior on public policy—it‘s a tool that everybody uses.” ECF 58 at 9. Fusaro asserted that elected officials use “the voter list to communicate their ideas, their concerns, their concepts about the public policy of Maryland and it‘s not being done for—what‘s the term—election purposes, related to the electoral process. . . .” Id. at 10.
Additionally, Fusaro explained that he “just want[s] the same right to talk to people” as Maryland voters enjoy. Id. at 11. He stated: “I travel through Maryland, I might own property some day in Maryland, I might go hunting in Maryland. And so what Maryland public policy does affects me . . . I might want to change public policy.” Id.
According to plaintiff, he is seeking “the same right that a registered voter in Maryland has,” and he asks: “[W]hy do they [i.e., Maryland registered voters] get to buy that list for 125 bucks, but I‘m being told in your filings that I should go out into the marketplace and buy it from someone like Aristotle or Democracy Data or L2 Lists and I should pay more money than $125 than a Maryland registered voter.” Id. at 11-12. Fusaro characterized this price as a “tax.” Id. at 12. He also described his inability to obtain the List to discuss public policy as “discriminatory.” Id. And, he disclaimed any commercial purpose for requesting the List. Id. at 13.
Plaintiff also addressed his assertion that registered voters are his “best audience.” Id. at 20. He said, id.:
Because elected officials and/or appointed officials who derive their power from elected officials by and large to make public policy are most sensitive to those who can give them or take—give to them or take away from them their power. That is their position in office. Politicians are people who want to have their hand directly on the levers of power.
According to Fusaro, when he first filed suit, he “might have been willing to spend several thousand dollars” to disseminate the Letter. Id. at 26. But now, he is “[p]robably” only willing to spend “several hundred dollars” on the effort. Id. at 25. He acknowledged that a substantial mailer, sent to about a million people, might cost around $500,000, and he is not willing to spend that sum of money. Id. at 26-27.
Fusaro acknowledged that has not considered alternative forms of communicating with Maryland voters. Id. at 27. In his view, the List is the most reliable source of data. Id. at 51. Moreover, he regards advertising in print media as “not effective.” Id. at 27. He is also skeptical about the effectiveness of online advertising. Id. Although he considered social media advertising, it is not his “primary focus” because he is not sure elected officials would be responsive to out-of-state individuals. Id. at 29. Nor does he want to pay for advertising via social media. Id. at 31. And, he did not consider using a billboard to disseminate his message. Id. at 33.
Plaintiff is aware of the “Every Door Direct Mail” service by the United States Postal Service, which distributes mail to targeted areas, but he does not believe it is the optimal way of contacting voters. Id. at 31-33. In Fusaro‘s view, blanket mailings are “scattershot,” because they do not allow him to select “the kind of people that the public elected official or the—I should say the appointed official, like Mr. Davitt in this case—would be responsive to in terms
Although Fusaro was aware of the editorial in the Capital Gazette, he did not respond to it. Id. at 36. Nor did he attempt to utilize campaign finance reports, which are publicly available and list the names and addresses of donors to campaigns. Id. at 37, 39. In his view, lists of donors are not “equal” to the List. Id. at 42. As he put it, “angry voters trump donors.” Id. at 43. According to Fusaro, donors “have an interest in preserving the status quo because they‘re invested in a particular official and would be more resistant to hearing a message. . . .” Id. Nevertheless, he recognized that a list of donors to a challenger could “be a potential list” and he “might want both lists.” Id. at 44. But, he expressed concern that a donor list could include people who cannot vote, thus diluting the utility of the list for his purposes. Id. He also had not considered obtaining “email lists,” id. at 47, because he “wanted the real thing.” Id. at 48.
In his Declaration (ECF 53-12), Fusaro avers that he has reviewed
As noted, as of November 1, 2019, there were more than 4.2 million registered voters in Maryland. ECF 53-7 at 4. And, of the approximately 1,100 applications for the List that the
Defendants submitted the Affidavit of Charlton Howard III, who succeeded Davitt as the Maryland State Prosecutor. ECF 56-7. Howard averred, id. at 2:
It is my opinion that, given the statutory scheme regarding the independent selection and execution of the office of the State Prosecutor [“OSP”], and the consequent separation of the office from the electoral process, as detailed in
Maryland Code, Criminal Procedure Article, Sections 14-101 – 14-114 , it is extremely unlikely that a letter writing campaign to Maryland Registered Voters as contemplated by Mr. Fusaro would have any effect on the exercise of prosecutorial discretion by the State Prosecutor in any matter.
In response to Fusaro‘s discovery requests, Howard stated, ECF 53-10 at 6:
[T]here is no formal or informal policy that guides the OSP‘s interpretation of Elec. Law § 3-506(c) for the purpose of investigating potential violations of, and enforcing, that statute. Defendant further states that, to date, the OSP has not prosecuted any person for violation of Elec. Law § 3-506(c) since January 1, 2010. Defendant further states that while he cannot disclose whether the OSP has investigated any person for violation of Elec. Law § 3-506(c) since January 1, 2010, to date, the OSP has not received any referral of any complaint relating to conduct potentially in violation of Elec. Law § 3-506(c) from the Maryland State Board of Elections (the “State Board”), the agency charged with administering the election laws of this state. Accordingly, to date, the OSP has not had occasion to “determine whether a use of a registered voter list is ‘related to the electoral process‘” in connection with any prosecution of any person for violation of Elec. Law § 3-506(c), or any referral of any complaint relating to a potential violation of Elec. Law § 3-506(c) by the State Board.
Howard reiterated that the State‘s purpose in limiting the use of the List to the “electoral process” and prohibiting “commercial solicitation” is to protect the privacy of Maryland‘s voters and to encourage voter registration. Id. at 7-10. Howard neither admitted nor denied Fusaro‘s requests for admission that his Letter and Updated Letter violate
Jared DeMarinis, the Director of Candidacy and Campaign Finance at the SBE, testified as the Board‘s Rule 30(b)(6) deponent.3 He stated that once the Board receives a request for the List, the application is processed “within 48 hours” and the CD is created “within that day.” ECF 56-9 (DeMarinis Deposition) at 7-8. According to DeMarinis, the SBE annually receives between 75 to 150 applications for the List. Id. at 8. One or two of these applications are rejected every year, due to “lack of payment or not a registered voter.” Id. at 9; ECF 53-6 at 5, Tr. 21.
Employees at the SBE are tasked with reviewing applications for the List. But, there are no internal documents at the Board with respect to the requirement limiting use of the List for electoral purposes. ECF 56-9 at 9; ECF 53-6 at 6, Tr. 24-25. Accordingly, the SBE has “not necessarily opined on commercial solicitation as a means of rejecting an application.” ECF 56-9 at 10.
DeMarinis noted that if a voter had questions about what constituted a permissible use of the List, the Board would provide guidance. Id. at 14. However, Fusaro‘s use of the List was not before the SBE; when he submitted the Application, he signed the oath that he would only use the list for an electoral purpose. Id. at 15; ECF 1-2 at 2.
According to DeMarinis, the issue of use of the List for commercial purposes “would be an enforcement question, and that would be within the State Prosecutor‘s Office.” ECF 56-9 at 15. He stated that, if a person were to sell the List to Fusaro with no knowledge of his purposes, whether that act violated the electoral process provision “would be a matter that would be
DeMarinis was presented with a copy of a letter Fusaro seeks to send to Maryland voters, id. at 12, and was asked if Fusaro could be denied a copy of the List because the letter is not “used for purposes related to the electoral process[.]” Id. at 13.4 DeMarinis responded, id. at 13-14:
Well, SBE would probably never see this letter. It would not be a part of the application for the voter registration data. So if the application was correct, meaning that the individual seeking the list was a Maryland registered voter and subsequently signed the oath, the State Board of Election would cease and distribute the list. If a complaint arose subsequent from that, I would say disbursement of the list, that complaint then would be referred to the State Prosecutor‘s Office at which point then the letter here would be in question about whether it would be part of the electoral process. But for the State Board of Election it‘s not like we ask for the list or what the intended purpose was at the time of the application. We ask for the application [to] be filled out, that it is signed under the penalties of perjury and that payment is satisfied for a hundred and twenty-five dollars for the statewide voter registration list. We do not ask for any subsequent materials as to its use or its -- for its use.
Further, DeMarinis stated, ECF 53-6 at 8, Tr. 30-31:
I would say for this situation here that there were other administrative avenues in which Mr. Fusaro could have done himself in order to seek a determination that would be binding on the State Board of Election[s] that would be greater than verbal advice given. And that would be to -- prior to its release of this letter to seek a declaratory ruling from the State Board of Elections because that is from prospective process that Mr. Fusaro then can have himself bound by the facts and bind the State Board of Election[s] and the Local Board of Elections as to its interpretation of electoral process.
Any opinion that I give would not bind the State Board of Election[s] and
would be subject to more interpretation on that matter. So like I said, I think that if this came to us, I would have consulted with my attorney on this matter here because this is not black letter law, meaning that it‘s not as clear as a six-thousand-dollar contribution limit or with, I would say various Attorney General opinions backing up other portions of the law that we have in store so that we can make a determination. Since the State Board has never opined officially on electoral process, we would want to have more, I would say opinions behind it to see. And, of course, the first one would be presidency and thus would require at least consultation with the Attorney General‘s Office.
When asked if Fusaro‘s Letter fell within the electoral process requirement, DeMarinis responded: “My answer is it‘s the same process.” Id., Tr. 33. But, he indicated that a declaratory ruling would not be available “with regard to a statute that the State Board does not enforce.” Id. at 11, Tr. 44. He also indicated that, in the preceding 18 years, the SBE staff could not recall any referrals to the State Prosecutor for violations of
DeMarinis was also asked about whether a legislator using the List to provide constituents with a legislative update would fall within the electoral process requirement. He responded, id. at 9, Tr. 34-35:
It would depend on what entity was paying for the mailing. The campaign doing the mailing by definition would make that campaign material and be a part of the electoral process because it‘s trying to influence Maryland voters. If it‘s the government office that is doing it, then that would be legislative and outside the purview of the State Board of Election[s] to make a determination on that front because the State Board of Election[s] only regulates and administers the campaign activity. If it‘s as a legislator, they have certain rules that they have to abide by using government funds that is restrictive and outside of my knowledge. But if it‘s from the campaign being mailed out, then it‘s campaign material.
And, DeMarinis discussed informal enforcement mechanisms for misuse of the List, short of a referral to the State Prosecutor. Id. at 11, Tr. 42. He indicated that a person had posted the List online; SBE contacted the individual, who subsequently took down the information. Id. And, he agreed that the SBE received complaints from voters “about being contacted. . . based on the availability of their voter information[.]” Id. But, such complaints are not referred to the
In response to an interrogatory from plaintiff, asking defendants to identify the government interests served by restricting access to the List, the State provided three reasons. ECF 53-7 at 7. It claims that access to the List is restricted to safeguard the privacy of Maryland citizens, because the List contains “sensitive, personally identifiable information . . . all collected in a single file.” Id. The State noted that such a collection “could be valuable to any number of persons, organizations or business entities seeking to conduct outreach, marketing, solicitation . . . or polling.” Id. Further, the State cited its desire to “encourage Maryland residents to register to vote (or maintain their voter registration).” Id. It reasoned, id. at 8: “If access to Maryland‘s registered voter lists were broadened to allow applicants who are not Maryland registered voters to obtain [the List], qualified individuals may be deterred from registering to vote, or currently registered individuals may cancel their voter registrations.” Id. And, the State claimed that limiting access helps to “ensure that only people whose tax dollars maintain the list can take advantage of its subsidized price.” Id. at 8.
In answer to a request to identify how defendants determine what falls within the “electoral process,” defendants responded that the SBE does not require an applicant to disclose his or her intended use of the List, and that the State Prosecutor‘s Office makes that determination. Id. at 9-10. Defendants also noted that the SBE 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 the permissibility of the intended use.” Id. at 10-11. Defendants gave the example of a branded consumer products company requesting a copy of the List. Id. at 11. But, they note that the SBE had not to date “contacted any applicants with questions regarding the intended use of a requested list of
Further, defendants related an incident in which a voter apparently complained to the SBE that the AARP had sent her mail after improperly using Maryland‘s voter data. Because the AARP receives Maryland voter data through a third-party company, the SBE conducted an investigation and concluded that “the communication at issue did not potentially involve the use of a Maryland voter list for a purpose not related to the electoral process, and may not have even involved the use of a Maryland voter list or any Maryland voter registration data at all.” Id. Fusaro submitted documents related to this incident. ECF 53-8.
III.
As noted, Fusaro previously sought a preliminary injunction. ECF 12. Defendants moved to dismiss the Complaint. ECF 20. By Memorandum Opinion (ECF 26) and Order (ECF 27) of September 4, 2018, I denied Fusaro‘s request for injunctive relief and dismissed the Complaint. I concluded that the First Amendment was not implicated because the State had no constitutional obligation to release government records. ECF 26 at 25. Moreover, the SBE rejected Fusaro‘s Application because he was not a Maryland resident or a Maryland voter, and not because of his political views. Id. at 26. Because Fusaro did not state a cognizable First Amendment claim, I did not reach his vagueness argument as to
On appeal, the Fourth Circuit determined that Fusaro stated a cognizable First Amendment claim. Fusaro v. Cogan, 930 F.3d 241, 249 (4th Cir. 2019). The Court acknowledged that “there is generally no First Amendment claim based on the government‘s denial of access” to government records. Id. Indeed, the Court made clear that it “do[es] not rule that a First Amendment right to government information exists as a general proposition.”
The Fourth Circuit observed that the “nature of the government records to which
According to the Fourth Circuit, the information Fusaro seeks has a “direct relationship to political speech” through its “explicit connection to the ‘electoral process.‘” Id. at 251 (quoting
The Fourth Circuit observed, id. at 252 (emphasis added):
Indeed, the Supreme Court has recognized that burdening a means of communication can burden speech. The connection between “indispensable instruments of effective political speech” and speech itself led the Court to rule that campaign spending limits must satisfy strict scrutiny. See Buckley v. Valeo, 424 U.S. 1, 19, 23, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). That said, access to the List presents a less immediate link to political speech than does campaign spending. And it is important that the List is a government record, so that regulations on its distribution reflect policy judgments to which courts must ordinarily defer. In other words, requesting and obtaining a copy of the List is not purely an act of speech, in that it is not simply a matter of personal expression, nor of the use of private resources to aid such expression. But the Court‘s precedents favoring the protection of political speech in various forms support the conclusion that the List‘s connection to such speech favors some level of First Amendment protection.
The Court cautioned, id. at 256: “[E]ven though we have determined that the restrictions in
The Fourth Circuit reasoned that obtaining a copy of the List is a “step removed’ from communication of political speech.” Id. at 260 (quoting Kendall v. Balcerzak, 650 F.3d 515, 525 (4th Cir. 2011)). Moreover, the conditions for access to the List, according to the Fourth Circuit,
Notably, the Court recognized that “other means of communication remain open” to Fusaro. Id. It observed that, “even absent a copy of the List, nothing prevents Fusaro from criticizing prosecutor Davitt on billboards, in newsletters, on the internet, or simply by mailing his letter to any Marylander in the phone book.” Id. And, even as a non-Maryland voter, Fusaro remains free to inspect a copy of the List at “one of the twenty-four State Board offices, pursuant to the separate statutory provision in
Further, the Fourth Circuit stated: “Most importantly, the challenged provisions of
And, the Fourth Circuit characterized “the sole content-based distinction in
In ascertaining the appropriate level of scrutiny to apply to Fusaro‘s claims, the Court concluded that the restrictions in
Accordingly, on remand, the Fourth Circuit instructed this Court to conduct “the balancing of interests described in the Anderson-Burdick framework[]. . . .” Id.; see Anderson v. Celebrezze, 460 U.S. 780 (1983); Burdick v. Takushi, 504 U.S. 428 (1992). This “flexible standard” is used to address First Amendment challenges to state election laws. Fusaro, 930 F.3d at 257. The framework “properly accommodate[s] ‘the state‘s important regulatory interests’ while vindicating individual constitutional rights” by requiring courts to “carefully balance those interests.” Id. (quoting Anderson, 460 U.S. 789). The Court explained that “the close connection between voter registration and political speech may, in some contexts urge an application of strict scrutiny. But the purpose of the Anderson-Burdick test is to ensure that the courts carefully balance all the interests at stake, recognizing that ‘there is no substitute for the hard judgments that must be made.‘” Fusaro, 930 F.3d at 258 (quoting Anderson, 460 U.S. at 789).
In addition, the Fourth Circuit specifically instructed this Court to address Fusaro‘s vagueness challenge to the phrase “electoral process,” as that term is used in
IV. Legal Standard
Both sides have moved for summary judgment under
The Supreme Court has clarified that not every factual dispute will defeat the motion. “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986) (emphasis in original). A fact is “material” if it “might affect the outcome of the suit under the governing law.” Id. at 248. There is a genuine issue as to material fact “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.; see Sharif v. United Airlines, Inc., 841 F.3d 199, 204 (4th Cir. 2016); Raynor v. Pugh, 817 F.3d 123, 130 (4th Cir. 2016).
“A party opposing a properly supported motion for summary judgment ‘may not rest upon the mere allegations or denials of [its] pleadings,’ but rather must ‘set forth specific facts showing that there is a genuine issue for trial.‘” Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (quoting former
The judge‘s “function” in reviewing a motion for summary judgment is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249; accord Guessous v. Fairview Prop. Inv., LLC, 828 F.3d 208, 216 (4th Cir. 2016). Thus, in considering a summary judgment motion, the court may not make credibility determinations. Wilson v. Prince George‘s Cty., 893 F.3d 213, 218-19 (4th Cir. 2018); Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015); Mercantile Peninsula Bank v. French, 499 F.3d 345, 352 (4th Cir. 2007). Moreover, in the face of conflicting evidence, such as competing affidavits, summary judgment ordinarily is not appropriate because it is the function of the fact-finder to resolve factual disputes, including matters of witness credibility. See Black & Decker Corp. v. United States, 436 F.3d 431, 442 (4th Cir. 2006); Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644–45 (4th Cir. 2002).
When, as here, the parties have filed cross-motions for summary judgment, the court “consider[s] each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law.” Def. of Wildlife v. N.C. Dep‘t of Transp., 762 F.3d 374, 392 (4th Cir. 2014) (citation omitted). In doing so, the court “resolve[s] all factual disputes and any competing, rational inferences in the light most favorable to the party opposing that motion.” Id. at 393 (quoting Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003), cert. denied, 540 U.S. 822 (2003)); see Mellen v. Bunting, 327 F.3d 355, 363 (4th Cir. 2003).
V. Discussion
Fusaro contends that the registered voter restriction and the electoral use restriction in
Defendants maintain that both restrictions in
I shall analyze the provisions in
A. Anderson-Burdick
As noted, the Fourth Circuit remanded this case in order for the District Court to conduct so called Anderson-Burdick balancing.
In Anderson v. Celebrezze, 460 U.S. 780, 788 (1983), discussing ballot access provisions, the Supreme Court recognized that “not all restrictions imposed by the States on candidates’ eligibility for the ballot impose constitutionally-suspect burdens on voters’ rights to associate or
“States have enacted comprehensive and sometimes complex elections codes” in order to administer elections effectively and fairly, and “the state‘s important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions.[]” Anderson, 460 U.S. at 788. Therefore, challenges to election laws are resolved by balancing “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate” with the “precise interests put forward by the State as justifications for the burden imposed by its rule.” Id. at 789. The reviewing court must consider the “legitimacy and strength” of the State‘s interests, as well as “the extent to which those interests make it necessary to burden the plaintiff‘s rights.” Id.
Nearly a decade later, in Burdick v. Takushi, 504 U.S. 428 (1992), the Supreme Court considered Hawaii‘s prohibition on write-in ballots. The Court reiterated that laws that burden the right to vote are not automatically subject to strict scrutiny. Id. at 432. To do so would “tie the hands of States seeking to assure that elections are operated equitably and efficiently.” Id. at 433. The Court said that, under the balancing test articulated in Anderson, “the rigorousness of [the] inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights.” Id. at 434. Notably, “when those rights are subjected to ‘severe’ restrictions, the regulation must be ‘narrowly drawn to advance a state interest of compelling importance.‘” Id. (quoting Norman v. Reed, 502 U.S. 279, 289 (1992)). On the other hand, “when a state election law provision imposes only
Generally, the Anderson-Burdick analysis is applied with respect to laws that affect the access of candidates to the ballot, and the ability of voters to exercise their right to vote. See, e.g., Crawford v. Marion Cty. Election Bd., 533 U.S. 181 (2008) (addressing voter photo identification requirement); Burdick, 504 U.S. at 434-42 (concerning prohibition on write-in ballots); Buscemi v. Bell, ___ F.3d ___, 2020 WL 3634740 (4th Cir. July 6, 2020). In other words, “Anderson, Burdick, and their progeny . . . all involve direct restrictions on speech or access to the ballot.” Molinari v. Bloomberg, 564 F.3d 587, 604-05 (2nd Cir. 2009).
In McLaughlin v. North Carolina Bd. of Elections, 65 F.3d 1215 (4th Cir. 1995), the Fourth Circuit recognized that restrictions on ballot access implicate “expressive rights protected by the First and Fourteenth Amendments.” Id. at 1221. But, “states have the power to regulate the time, place, and manner of their own elections . . . .” Buscemi, 2020 WL 3634740, at *6.
The McLaughlin Court articulated the balancing test as follows, 65 F.3d at 1221:
In short, election laws are usually, but not always, subject to ad hoc balancing. When facing any constitutional challenge to a state‘s election laws, a court must first determine whether protected rights are severely burdened. If so, strict scrutiny applies. If not, 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.” (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)).
The Fourth Circuit has also recognized the “uncontroversial proposition” that State legislatures possess “the presumptive authority to regulate elections within that state‘s sovereign territory.” Libertarian Party of Virginia v. Alcorn, 826 F.3d 708, 714 (4th Cir. 2016). In cases where strict scrutiny does not apply to the challenged election regulation, it “ask[s] only that the
Under Anderson-Burdick, “courts consider the character and magnitude of the asserted injury” to protected rights against “the precise interests put forward by the State as justifications for the burden imposed . . . .” Marcellus, 849 F.3d at 175 (citation omitted). An election regulation that “imposes only moderate burdens could well fail the Anderson balancing test when the interests that it serves are minor, notwithstanding that the regulation is rational.” McLaughlin, 65 F.3d at 1221 n.6.
Here, the Fourth Circuit recognized that the Anderson-Burdick framework is generally “applied to claims concerning ballot access . . . .” Fusaro, 930 F.3d at 258. But, in view of “the very interests implicated by Fusaro‘s claim,” it determined that it was appropriate to “to ‘borrow’ that standard for Fusaro‘s challenge to
1. The Registered Voter Restriction
In considering the plaintiff‘s request for access to the List, I am mindful of Judicial Watch v. Lamone, 399 F. Supp. 3d 425 (D. Md. 2019), decided shortly after the Fourth Circuit‘s decision in the case sub judice. In Judicial Watch, the plaintiff, a non-Maryland resident, sought access to the List, but it was for an electoral purpose. To the extent that
Under the canon of constitutional avoidance, courts “are to avoid constitutional determinations when other grounds exist for the disposition of the case.” Snyder v. Phelps, 580 F.3d 206, 227 (4th Cir. 2009) (Shedd, J., concurring) (citing Ashwander v Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring)). This doctrine “requires the federal courts to strive to avoid rendering constitutional rulings unless absolutely necessary.” Norfolk Southern Ry Co. v. City of Alexandria, 609 F.3d 150, 157 (4th Cir. 2010) (citing Ashwander).
Accordingly, given that the requirement in
2. The Electoral Process Restriction
a. Anderson-Burdick Balancing
In addressing the level of scrutiny that applies to Fusaro‘s claims, the Fourth Circuit explicitly considered the restrictions imposed by
Although the Fourth Circuit has already determined that the restriction in
The crux of Fusaro‘s argument is that the List is a valuable resource: it is inexpensive and it contains contact information for persons he wishes to reach, i.e., Maryland registered voters. The information contained in the List is publicly available. Id. at 16. And, Fusaro complains that Maryland voters may obtain it at a price that is more favorable than what Fusaro would have to pay to obtain similar information from a third-party vendor. Id. at 11. In his view, Maryland‘s asserted interests in protecting voter privacy, encouraging voter registration, and subsidizing production of the List for taxpayers who fund the maintenance of the List are “legally dubious,” “conclusory,” and “contradicted by evidence.” Id. at 11-12; see id. at 16. Fusaro asserts: “Encouraging Marylanders to register to vote or maintain their voter registration is laudable, but may be accomplished in any number of ways without censorship.” Id. at 16.
Fusaro acknowledges that he does not intend to contact every registered voter on the List, as he only wishes to spend a few hundred dollars to send his Updated Letter. See ECF 58 at 25. Nor has he articulated a coherent plan for how he will select the particular voters to whom to mail his Updated Letter, because he “hadn‘t gotten that far.” Id. at 24. And, he has not
The State counters that the electoral process restriction is necessary “so that those who chose to register to vote will not, by doing so, potentially become inundated with non-electoral-process-related-communication through broad access to Maryland‘s voter list.” ECF 56-1 at 25. According to defendants, the List is a “uniquely cheap and powerful tool.” Id. Therefore, it is “subject to exploitation in a way that individual voter registration records (such as voter registration applications) available through local board offices are not.” Id. at 25-26.
Defendants maintain that the statutory provision implicates the State‘s important interest in encouraging voter participation. Id. at 25. In the State‘s view, protecting registered voters from commercial solicitation and other exposure unrelated to the electoral process fosters Maryland‘s objective in quelling voter concerns about disclosure of their names and addresses as the price for their participation in the democratic process. Id.7
In my view, the List is not essential for plaintiff to achieve the desired objective of direct mail to registered Maryland voters. It may be the most efficient and the least costly means. But, as the Fourth Circuit observed, even if the State does not provide plaintiff with a copy of the List, the same information could be garnered from requests to local election boards. Fusaro, 930 F.3d at 260. Indeed, Fusaro is entitled to inspect the voter lists at every local office, at no cost.
I turn to defendants’ asserted interests in limiting use of the List. Maryland unquestionably has an interest in encouraging voter registration and participation in the electoral process. See, e.g., Van Allen v. Cuomo, 621 F.3d 244, 249 (2d Cir. 2010) (observing that “the state has a legitimate interest in encouraging new voter registration“). Defendants have determined that the electoral process restriction in
The State‘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 electoral 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. See Libertarian Party of Va., 826 F.3d at 719.
Accordingly, I conclude that the State has met its burden in justifying the burden the electoral process restriction places on Fusaro‘s ability to access the List, both facially and as-applied.
b. Vagueness
Fusaro contends that the proscription in
i. Ripeness
As a threshold matter, defendants provide this Court with multiple roadmaps to avoid reaching the merits of Fusaro‘s claim that “electoral process” is unconstitutionally vague. They maintain that Fusaro‘s vagueness challenge is not ripe, in that Fusaro was not denied access to the List “because of the purpose for which he requested it.” ECF 56-1 at 34 (emphasis in brief). Moreover, the State argues that Fusaro does not “reasonably face ‘actual or threatened action’
Alternatively, defendants contend that the Court should not decide the issue because upholding the voter registration restriction will foreclose Fusaro‘s access to the List. Id. But, as noted, I previously concluded that the registered voter provision is preempted under the NVRA, based on obstacle preemption. See Judicial Watch, 399 F. Supp. 3d at 442-45. Therefore, the voter registration restriction does not foreclose Fusaro‘s access to the List. And, I have concluded that the electoral process restriction passes constitutional muster under Anderson-Burdick balancing.
Fusaro insists that the vagueness challenge is ripe. ECF 59 at 5. Although he acknowledges that there is no “history of prosecution” with regard to the “electoral process” restriction, id., he maintains that “ripeness requirements are relaxed in First Amendment cases given the ‘potential chilling effects of unconstitutional restrictions on free speech.‘” Id. at 4 (quoting Pearson v. Leavitt, 189 F.App‘x 161, 163 (4th Cir. 2006)). Moreover, he contends that he has disclaimed the desire to access the List from a third party because of the chill from the required oath. ECF 59 at 4.
Defendants have not framed their contention as an Article III standing argument, but the “‘case or controversy’ constraint of Article III” includes principles of standing as well as ripeness, which “presents a ‘threshold question [ ] of justiciability.‘” Scoggins v. Lee‘s Crossing Homeowners Ass‘n, 718 F.3d 262, 269 (4th Cir. 2013) (citation omitted). Like standing, ripeness is an issue of subject matter jurisdiction. Sansotta v. Town of Nags Head, 724 F.3d 533, 548 (4th Cir. 2013); see Nat‘l Ass‘n for the Advancement of Colored People v. Bureau of the Census, 382 F. Supp. 3d 349, 363 (D. Md. 2019) (“NAACP“) (describing standing and ripeness as “overlapping facets” of subject matter jurisdiction).
As with standing, the ripeness doctrine is “drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction . . . .” Nat‘l Park Hospitality Ass‘n v. Dep‘t of Interior, 538 U.S. 803, 808 (2003) (internal quotation marks omitted). Whereas standing focuses on who can sue, ripeness “concerns the appropriate timing of judicial intervention.” Cooksey v. Futrell, 721 F.3d 226, 240 (4th Cir. 2013) (quoting Va. Soc‘y for Human Life, Inc. v. FEC, 263 F.3d 379, 389 (4th Cir. 2001)); see NAACP, 382 F. Supp. 3d at 363 (noting that standing concerns who may sue, while ripeness pertains to when a party may sue).
Notably, a claim is not ripe for judicial review “‘if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.‘” Scoggins, 718 F.3d at 270 (quoting Texas v. United States, 523 U.S. 296, 300 (1998)). In other words, “the ripeness requirement is designed ‘to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements’ . . . .” Ohio Forestry Ass‘n, Inc. v. Sierra Club, 523 U.S. 726, 732-33 (1998) (citations omitted); see also South Carolina v. United States, 912 F.3d 720, 730 (4th Cir. 2019); NAACP, 382 F. Supp. 3d at 370.
The doctrines of ripeness and standing have largely blurred in declaratory judgment actions. See 13B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 3532.5 (3d ed. 2018). In MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007), the Supreme Court recognized that “standing and ripeness boil down to the same question” of justiciability. Id. at 128 n.8; accord Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 n.5 (2014); see South Carolina v. United States, 912 F.3d at 730; Miller v. Brown, 462 F.3d 312, 319 (4th Cir. 2006); see also Capital Associated Indus., Inc. v. Stein, 283 F. Supp. 3d 374, 380 (M.D.N.C. 2017) (characterizing discussion of standing and ripeness as “one involving ‘standing‘” in light of MedImmune and Susan B. Anthony List).
Both ripeness and standing “require that those seeking a court‘s intervention face some actual or threatened injury to establish a case or controversy.” Doe v. Duling, 782 F.2d 1202, 106 n.2 (4th Cir. 1986). And, “a plaintiff satisfies the injury-in-fact requirement where he alleges ‘an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.‘” Susan B. Anthony List, 573 U.S. at 159 (quoting Babbitt v. Farm Workers, 422 U.S. 289, 298 (1979)). Of relevance here, a plaintiff is “not required to expose himself to liability before bringing suit to challenge the basis for the threat” to a constitutional right. MedImmune, 549 U.S. at 128-29.
The requirements for ripeness, like those for standing, are “relaxed in First Amendment cases.” Cooksey, 721 F.3d at 240. “‘In a wide variety of settings, courts have found First Amendment claims ripe, often commenting directly on the special need to protect against any inhibiting chill.‘” Id. (quoting Bill Richardson v. Gonzales, 64 F.3d 1495, 1500 (10th Cir. 1995)).
The electoral process restriction is, as the Fourth Circuit has noted, a content-based restriction, in that it facially restricts the use of the List to the electoral process. Fusaro, 930 F.3d at 263. And, the provision could “chill the exercise of First Amendment rights,” in that it could be used to prosecute Fusaro if he used the List to disseminate the Updated Letter, which he concedes is a non-electoral purpose. See North Carolina Right to Life, Inc. v. Bartlett, 168 F.3d 705, 710 (4th Cir. 1999).
“Prior enforcement of the challenged statute is ‘[t]he most obvious way to demonstrate a credible threat of enforcement in the future.‘” Buscemi, 2020 WL 3634740, at *3 (quoting
To be sure, defendants point out that since January 2010, the State Prosecutor has not prosecuted anyone 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“; the State Prosecutor is also unaware “of any prosecution of this statute or its predecessors prior to that date.” ECF 56-1 at 18. However, given that the State Prosecutor has not ruled out prosecution under a law currently on the books, this rises to a credible threat of enforcement.
In any event, I need not resolve the issue. This is because the Fourth Circuit has expressly instructed me to address the merits of the vagueness issue. Fusaro, 930 F.3d at 264.
ii. Principles of Statutory Construction8
The Fourth Circuit has instructed that, when interpreting a state statute, a federal court should “apply the statutory construction rules applied by the state‘s highest court.” In re DNA Ex Post Facto Issues, 561 F.3d 294, 300 (4th Cir. 2009); see Carolina Trucks & Equip., Inc. v. Volvo Trucks of N. Am., Inc., 492 F.3d 484, 489 (4th Cir. 2007). Maryland “follows the general principles of statutory interpretation.” Johnson v. Mayor & City Council of Balt., 430 Md. 368, 377, 61 A.3d 33, 38 (2013).
In general, the task of interpreting a statute begins with the text. Bostock v. Clayton
In Maryland, the “cardinal rule of statutory interpretation is to ascertain and effectuate the real and actual intent of the General Assembly.” Conaway v. State, 464 Md. 505, 523 212 A.3d 348, 358 (2017) (citation omitted); see Deville v. State, 383 Md. 217, 223, 858 A.2d 484, 487 (2004). To that end, the Maryland Court of Appeals follows a two-step approach. See Johnson, 430 Md. at 377-78, 61 A.3d at 38. Courts first examine “the plain meaning of the statutory language[.]” Id. at 377, 61 A.3d at 38 (citation omitted). If the language “is clear and unambiguous, and consistent with both the broad purposes of the legislation, and the specific purpose of the provision being interpreted, [the] inquiry is at an end.” Id. (citation omitted). However, if the statute‘s “language is ambiguous or unclear, [courts] seek to discern the intent of the legislature from surrounding circumstances, such as legislative history, prior case law, and the purposes upon which the statutory framework was based.” Id. (citation omitted).
Moreover, the statute must be read “as a whole to ensure that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory.” Conaway, 464 Md. at 523, 212 A.3d at 358; see Bourgeois v. Live Nation Ent‘s, Inc., 430 Md. 14, 27, 59 A.3d 509, 516 (2013). As the Maryland Court of Appeals has explained, courts may “neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute.” McCloud v. Dep‘t of State Police, Handgun Permit Review Bd., 426 Md. 473, 480, 44 A.3d 993, 997 (2012) (citation omitted).
Of import here, terms that are not defined are “interpreted as taking their ordinary, contemporary, common meaning.” Sandifer v. U.S. Steel Corp., 571 U.S. 220, 227 (2014) (citation omitted); accord United States v. George, 946 F.3d 643, 645 (4th Cir. 2020). Words in a statute are assigned their “ordinary meaning.” Balt. City Det. Ctr. v. Foy, 461 Md. 627, 645, 197 A.3d 1, 11 (2018). Dictionary definitions may provide a “useful starting point” to determine a term‘s meaning in common parlance. Montgomery Cty. v. Deibler, 423 Md. 54, 67, 21 A.3d 191, 198 (2011) (citation omitted); see also Foy, 461 Md. at 645, 197 A.3d at 11; Bottini v. Dep‘t of Fin., 450 Md. 177, 195, 147 A.3d 371, 382 (2016) (using dictionary definition to construe the meaning of the term “money” in a statute). However, dictionary definitions are not necessarily dispositive. Deibler, 423 Md. at 67, 31 A.3d at 198. And, when a court turns to a dictionary to clarify a statutory term, the court should endeavor to consult an edition that was extant at the time that the challenged statute was enacted. Harvey v. Marshall, 389 Md. 243, 260 n.11, 884 A.2d 1171, 1181 n.11 (2005).
iii. Analysis
For starters, Fusaro concedes that he does not intend to use the List for an electoral purpose. As defendants point out, Fusaro states in his Complaint that “the letter he wishes to send ‘literally cannot . . . be reasonably interpreted to relate to elections or to the electoral process.‘” ECF 56-1 at 36 (citing ECF 1, ¶ 35).
Because the State Prosecutor has “declined to provide any detail whatsoever as to what ‘electoral process’ means, or whether Fusaro‘s letters fit the bill,” Fusaro contends that he “still does not know what is prohibited by the law and what is not.” Id. He argues that the provision is vague because the determination of whether the Updated Letter violates
Fusaro also incorporates by reference his arguments concerning vagueness in earlier briefing. ECF 53-1 at 18. In those submissions, Fusaro contends that courts have struck down terms such as “political purposes,” and “political activity.” ECF 17-1 at 10. He notes that Black‘s Law Dictionary defines “electoral process” as “1. The method by which a person is elected to public office in a democratic society. 2. The taking and counting of votes.” Electoral process, BLACK‘S LAW DICTIONARY (9th ed. 2009).
Moreover, Fusaro asserts that third parties who might provide Fusaro with a copy of the List are “jeopardized” and potentially subject to criminal liability because it is unclear what “electoral process” means. ECF 53-1 at 19-20. Plaintiff contends that the restrictions on access and the vagueness issue cannot be “compartmentalized,” id. at 20, and he fears prosecution of himself and of any third party who furnishes him a list due to the purported vagueness issue. Id. at 20-21. And, Fusaro points to the SBE‘s prior history of monitoring use of the List, as discussed in the context of the AARP, as evidence that the SBE does not utilize a consistent definition of “electoral process,” raising the specter of viewpoint or speaker-based discrimination. ECF 59 at 15.
According to defendants, plaintiff “admits that he is able to understand the scope of
The Fourth Circuit‘s analysis of the constitutional vagueness of North Carolina‘s campaign finance regulations in North Carolina Right to Life, Inc. v. Leake, 525 F.3d 274 (4th Cir. 2008), is instructive. In Leake, anti-abortion advocacy entities brought a First Amendment challenge to various provisions of North Carolina‘s campaign finance law.9 One of the challenged provisions was
(a) Either of the following shall be means, but not necessarily the exclusive or conclusive means, of proving that an individual or other entity acted “to support or oppose the nomination or election of one or more clearly identified candidates“:
(1) Evidence of financial sponsorship of communications to the general public that use phrases such as “vote for“, “reelect“, “support“, “cast your
ballot for“, “(name of candidate) for (name of office)“, “(name of candidate) in (year)“, “vote against“, “defeat“, “reject“, “vote pro-(policy position)” or “vote anti-(policy position)” accompanied by a list of candidates clearly labeled “pro-(policy position)” or “anti-(policy position)“, or communications of campaign words or slogans, such as posters, bumper stickers, advertisements, etc., which say “(name of candidate)‘s the One“, “(name of candidate) ‘98“, “(name of candidate)!“, or the names of two candidates joined by a hyphen or slash. (2) Evidence of financial sponsorship of communications whose essential nature expresses electoral advocacy to the general public and goes beyond a mere discussion of public issues in that they direct voters to take some action to nominate, elect, or defeat a candidate in an election. If the course of action is unclear, contextual factors such as the language of the communication as a whole, the timing of the communication in relation to events of the day, the distribution of the communication to a significant number of registered voters for that candidate‘s election, and the cost of the communication may be considered in determining whether the action urged could only be interpreted by a reasonable person as advocating the nomination, election, or defeat of that candidate in that election.
The plaintiffs alleged, inter alia, that this law “unconstitutionally restricted issue advocacy in prescribing a standard that, through context, attempts to determine if a communication supports or opposes the nomination or election of a particular candidate . . . .” Leake, 525 F.3d at 278.
As the Fourth Circuit characterized it,
If it was “unclear” whether the “essential nature” or a communication “goes beyond a mere discussion of public issues in that [it] direct[s] voters to take some action to nominate,
contextual factors such as the language of the communication as a whole, the timing of the communication in relation to events of the day, the distribution of the communication to a significant number of registered voters for that candidate‘s election, and the cost of the communication ... in determining whether the action urged could only be interpreted by a reasonable person as advocating the nomination, election, or defeat of that candidate in that election.
The Fourth Circuit determined that this second prong was unconstitutionally vague, because it “unquestionably chill[s] a substantial amount of political speech.” Id. at 285. It reasoned that the statute‘s “open-ended terms provide little ex ante notice to political speakers as to whether their speech will be regulated. Instead, speakers are left to guess and wonder whether a regulator, applying supple and flexible criteria, will make a post hoc determination that their speech is regulable as political advocacy.” Id. at 284. Among the concerns posed by North Carolina‘s regulation was the “unguided discretion given to the State to decide when it will move against political speech and when it will not.” Id. at 385.
Maryland‘s electoral process restriction does not suffer from these infirmities. To be sure, the term “electoral process” is not defined in the statute. But, there is no amorphous factor-based test that could be interpreted in ways that raise concerns of viewpoint discrimination. Courts do not declare a statute vague “simply because it does not include the most elaborate or the most specific definitions possible.” United States v. Schrader, 675 F.3d 300, 310 (4th Cir. 2012).
Here, a “common sense reading of the statute adequately defines the prohibited conduct.” Id. The term “electoral” has plain meaning. Merriam Webster defines “electoral” as “of or relating to an election.” See https://bit.ly/2VxZzki. And, as Fusaro notes, Black‘s Law Dictionary provides the following definition: “1. The method by which a person is elected to
A person seeking to utilize the List is not tasked with divining the number of voters who may be contacted or the topics permissible under this restriction. Rather, he or she must only determine whether the use of the List relates to the “electoral process.” As defendants point out, the term “electoral process” appears in Maryland‘s election code four times: authorizing the governor to postpone an election or specify alternative voting locations in the event of an emergency that interferes with the “electoral process” (
The fact that a restriction requires some interpretation from courts and enforcement agencies does not make the restriction unconstitutionally vague. DeMarinis, who is not employed by the Office of the State Prosecutor, could not necessarily provide a clear answer to whether Fusaro‘s letters hypothetically fall within the “electoral process.” But, this does not
The SBE‘s exchange with the AARP does not support plaintiff‘s contention that the SBE lacks a coherent definition of “electoral process.” Plaintiff contends that the SBE was alerted to the AARP‘s potential use of voter data to send out a letter “focusing on the budget of a president who is no longer eligible for re-election. . . .” ECF 59 at 15. According to plaintiff, the SBE “elected not to further investigate or refer any type of enforcement” regarding this use of voter data and concluded it was “related to the electoral process.” Id. He objects to the fact that now, defendants appear to be inconsistently arguing that the AARP‘s letter (like Fusaro‘s letters) was not related to the electoral process. Id. He contends that the reason for this apparent switch might be viewpoint discrimination. Id.
Similarly, Fusaro has not succeeded in demonstrating a risk of arbitrary or discriminatory enforcement by the State Prosecutor, because he has not demonstrated any history of enforcement at all. Fusaro might wish for additional guidance from the State. Such desire does not render a statute void for vagueness. Accordingly, I conclude that Fusaro‘s vagueness challenge to
VI. Conclusion
For the foregoing reasons, I shall grant the Supplemental Complaint Motion. I shall grant the State Motion. And, I shall deny the Fusaro Motion.
An Order follows.
Date: July 14, 2020
/s/
Ellen Lipton Hollander
United States District Judge