Public Interest Legal v. NC State Board of ElectionsPublic Interest Legal v. NC State Board of Elections
ASSOCIATION OF MEXICANS IN NORTH CAROLINA; EL PUEBLO, INC.; NORTH CAROLINA ASIAN AMERICANS
Amici Supporting Appellee.
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:19-cv-00248-BO)
ARGUED: William Earl Davis, FOLEY & LARDNER LLP, Jacksonville, Florida, for Appellant. Ryan Y. Park, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.
BARBARA MILANO KEENAN, Circuit Judge:
In this appeal, we consider whether the district court erred by dismissing under
Upon our review, we hold that the district court erred in dismissing the complaint at this stage of the proceedings. Because discovery was not conducted, we cannot discern on this record whether the Foundation may be entitled to disclosure of some of the documents requested. We therefore remand the case to the district court for further consideration of the documents subject to four restrictions excluding from disclosure: (1) information precluded from disclosure by the Privacy Act of 1974,
I.
The Foundation is a “public interest organization” that “seeks to promote the integrity
In 2018, the Foundation requested documents under the NVRA‘s disclosure provision,
In its requests to the county boards, the Foundation listed wide-ranging categories of documents concerning “the actions county election officials have taken to identify and cancel registrations belonging to individuals who do not satisfy the citizenship requirements for voting.” The Foundation requested:
[] Documents regarding all registrants who were identified as potentially not satisfying the citizenship requirements for registration from any official information source, including information obtained from the various agencies within the U.S. Department of Homeland Security, North Carolina Department of Motor Vehicles, and from the [state Board] since January 1, 2006[, and] all documents that provide the name of the registrant, the voting history of such registrant, the nature and content of any notice sent to the registrant, including the date of the notice, the response (if any) of the registrant, and actions taken regarding the registrant‘s registration (if any) and the date of the action . . . .
[] All documents and records of communication received by your office from registered voters, legal counsel, claimed relatives, or other agents since January 1, 2006 requesting a removal or cancellation from the voter roll for any reason related to non-U.S. citizenship . . . .1 (emphasis added).
The Foundation further specified that it requested “completed voter application” forms, with necessary redactions for social security numbers and signatures, for individuals “identified as potentially not satisfying the citizenship requirements.” Notably, the forms
ask registrants to “check boxes” to affirm that they satisfy voter eligibility requirements, including that the registrants are United States citizens.
The state Board ultimately contacted the Foundation about its requests made to the county boards. The Foundation maintained that the Board was “in violation of the NVRA for failure to permit inspection and photocopying of public records as required by
After receiving this notification, counsel for the state Board responded to the Foundation by letter and provided several documents. The Board directed the Foundation to records publicly available on the Internet regarding “list maintenance activities as to each registered voter,” which records are updated weekly and list the individuals removed from the voter roll, the reason for that removal, and the date of removal. Also, the Board informed the Foundation that it could find online voter participation history for all voters in North Carolina.
The Board provided to the Foundation a “Post-Election Audit Report,” issued in April 2017, regarding the 2016 general election (the 2016 Audit). The 2016 Audit explained the Board‘s three-step process of confirming the citizenship of voter registration applicants. First, the Board compares its information with data from the North Carolina Division of Motor Vehicles (the DMV) regarding driver‘s licenses that were issued with a
restriction code indicating that an individual is not a citizen. Second, the Board obtains information from the SAVE system federal database. The SAVE system allows the Board to access confidential databases maintained by the United States Citizenship and Immigration Service (USCIS), located within the Department of Homeland Security, to view immigration-related records.
After consulting these sources of information, the Board found that the DMV and SAVE information had a high rate of inaccuracy. The Board determined that 97.6% of persons identified by the DMV as noncitizens, in fact were citizens, and that about 75% of individuals who later provided proof of citizenship continued to be listed as noncitizens in the SAVE system. Thus, in the third step of its investigation into registrants’ citizenship status, the Board communicates with individual registrants to request certification of their citizenship by evidence of an “official document,” such as a birth certificate, passport, or certificate of naturalization. In this communication, the Board informs the recipient that it is a crime under North Carolina law for a noncitizen to vote in a state or federal election. See
Referencing this verification process, the 2016 Audit showed that 41 noncitizens with legal status to reside in the United States cast ballots, and that 34 voters “provided documents showing [that] they are U.S. citizens.” At the time the 2016 Audit was released, investigators were “continu[ing] to review 61 additional records” of registrants regarding citizenship eligibility. Notably, about 4.8 million voters cast ballots in the 2016 general election in North Carolina.
In addition to disclosing the 2016 Audit, the Board also provided the Foundation with a 2013 Memorandum of Agreement (MOA) between the Board and USCIS. The MOA with USCIS (1) restricts the Board‘s ability to use information from the SAVE system to determining voter eligibility, (2) requires written consent from the agencies before disclosing such information, and (3) requires compliance with the Privacy Act to protect requested data. Finally, the Board disclosed to the Foundation memoranda issued by the Board in 2018 and 2019, which had been sent to local boards of elections providing updated information about grand jury subpoenas
Although the Board disclosed the above documents describing its process of investigating potential noncitizen registrants, the Board informed the Foundation that it was “unable to disclose the identity of particular individuals in the manner” the Foundation had requested. The Board explained that under the MOA, the Board is required to “protect” the confidentiality of information provided by USCIS “for the purpose of determining the eligibility” of voter registrants. The Board further related that it was prohibited from
disclosing “alien identification numbers” obtained from the DMV, which are protected from disclosure under the Driver Protection Act.
The Board also stated that disclosure of some of the requested documents would violate its duty to protect “the identity of any prior or current registrant that may be subject to review by federal law enforcement,” and that the Board and the county boards were “continu[ing] to provide records sought by federal law enforcement.” Under
Unsatisfied with the Board‘s response, the Foundation filed suit in federal district court against Karen Brinson Bell, in her official capacity as the Executive Director of the state Board.3 In its complaint, the Foundation alleged that the Board had violated the NVRA‘s disclosure provision. The Foundation sought a declaratory judgment and an order requiring the Board to comply with the Foundation‘s broad records request.
In response, the Board filed a motion to dismiss under Rule 12(b)(6) arguing that the requested records were “exempt from disclosure” for the reasons explained above. Additionally, the Board filed an ex parte motion to stay the case, which motion the Board
sought to seal.4 The Board asserted that its “motion and memorandum of law discuss matters that are before [the district court] in sealed proceedings relating to sealed criminal investigations and grand jury subpoenas issued pursuant to these investigations.”
II.
We review de novo the district court‘s dismissal of the complaint under Rule 12(b)(6), accepting the plaintiff‘s allegations as true and drawing all reasonable inferences in the plaintiff‘s favor. Mason v. Mach. Zone, Inc., 851 F.3d 315, 319 (4th Cir. 2017). To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible on
its face” to show “that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
The Foundation argues that the district court erred in dismissing its claim by failing to enforce the plain language of the NVRA‘s disclosure provision. Focusing on the phrase “all records” in the statute, the Foundation asserts that any documents “concerning [the Board‘s] noncitizen audit processes” must be made publicly available because those documents necessarily concern the process by which the Board keeps its official voter lists current and accurate.5 The Foundation further submits that the requested information does not fall within the two exemptions from disclosure listed in the statute. According to the Foundation, the district court “judicially amended” the statute to create an additional
exemption, contrary to Congressional intent and inconsistent with this Court‘s holding in Project Vote/Voting for America, Inc. v. Long, 682 F.3d 331 (4th Cir. 2012).
In response, the Board acknowledges that the NVRA was designed as a government-transparency statute, but submits that the Board is bound by numerous obligations beyond the NVRA that require maintaining the privacy of certain information. The Board points to its obligations to ongoing federal criminal investigations, the Privacy Act, the Driver Protection Act,
A.
Although the Foundation is correct that the NVRA‘s disclosure provision is broad and does not contain an explicit exemption from disclosure for sensitive information subject to potential abuse, we nonetheless agree in large part with the Board‘s position. Contrary to the Foundation‘s argument, the term “all records” in the disclosure provision does not encompass any relevant record from any source whatsoever, but must be read in conjunction with the various statutes enacted by Congress to protect the privacy of individuals and confidential information held by certain governmental agencies. See Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184-85 (1988) (explaining that when interpreting statutory provisions, courts “presume that Congress is knowledgeable about existing law pertinent to the legislation it enacts“). Likewise, the concerns of confidentiality regarding criminal investigations also must be considered in examining the disclosure provision. See
(recognizing that “a compelling governmental interest exists in protecting the integrity of an ongoing law enforcement investigation“); Microfinancial, Inc. v. Premier Holidays Int‘l, Inc., 385 F.3d 72, 78 (1st Cir. 2004) (discussing district court‘s discretionary authority to stay civil proceedings in deference to parallel criminal proceedings); Baumann v. District of Columbia, 795 F.3d 209, 216 (D.C. Cir. 2015) (explaining government‘s “weighty interest in preserving confidential information that, if released publicly, could jeopardize the successful conclusion of a criminal investigation“); United States v. Doe, 962 F.3d 139, 152-53 (4th Cir. 2020) (after considering facts surrounding request, holding that district court should seal its order referencing defendant‘s cooperation with government‘s investigation in other cases based on potential harm to defendant).
With these concerns in mind, we turn to consider the history of the NVRA and its relevant provisions. In enacting the NVRA, Congress explained that the right to vote is a “fundamental right” and that governments must “promote the exercise of that right.” National Voter Registration Act of 1993,
“enhance[] the participation of eligible citizens as voters in elections for Federal office;” (3) “to protect the integrity of the electoral process;” and (4) “to ensure that accurate and current voter registration rolls are maintained.”
The NVRA‘s disclosure provision requires that states “maintain for at least 2 years” and allow “public inspection” of “all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters.”
exempts two categories of records, namely, records related to an individual‘s decision declining to register, and records identifying the agency where a voter registered.
B.
We next discuss in some detail our decision in Project Vote/Voting for America, Inc. v. Long, 682 F.3d 331, 333-35 (4th Cir. 2012), in which we considered the NVRA‘s disclosure provision and held that completed voter registration applications generally are subject to disclosure under the NVRA.6 We reached this conclusion in the context of the plaintiffs’ request for rejected Virginia voter registration applications and for documents supporting those applications. Id. at 333. Although the requested applications had been submitted in a timely manner by individuals in Virginia over a ten-month period before the November 2008 general election, the applicants were unable to obtain approval to vote in the 2008 election. Id. The plaintiffs’ request arose from a concern that many students who attended a Historically Black College in Norfolk, Virginia, had experienced difficulty in attempting to register to vote. Id.
Examining the statutory language, we concluded that “completed voter registration applications” plainly fell within the ambit of the NVRA‘s disclosure provision, because a state necessarily conducts as a “program” or “activity” an evaluation of those applications to verify an applicant‘s citizenship, age, and other information to ensure the accuracy of
the official lists of eligible voters. Id. at 336. We explained that the statute‘s use of the broad term “all records concerning the implementation” of such “programs and activities” required that the defendant-election officials in Virginia disclose the requested voter registration applications. Id. We also upheld the district court‘s requirement that disclosed voter applications be redacted to omit applicants’ social security numbers, which qualified as “uniquely sensitive information.” Id. at 339 (citing Greidinger v. Davis, 988 F.2d 1344, 1355 (4th Cir. 1993) (holding that requiring disclosure of social security numbers on voter registration application records created an “intolerable burden” on the right to vote in violation of the First and Fourteenth Amendments)).
Finally, in Project Vote, we observed that the defendants’ privacy concerns regarding registrants’ personal information, including criminal history and mental incompetency, were not “unfounded,” and that the disclosure of such information “may conceivably inhibit voter registration in some instances.” Id. at 339. Nevertheless, emphasizing the importance of public disclosure to identify “error and fraud” in “the preparation and maintenance of voter rolls,” we concluded that Congress had carefully considered the
“balance between transparency and voter privacy” in enacting the NVRA‘s disclosure provision. Id.
C.
In accord with our statutory analysis in Project Vote, we conclude that the Board‘s efforts in the present case to identify noncitizen registrants qualify as a “program” or “activity” to ensure an accurate list of eligible voters. See
Moreover, the statute‘s use of the term “all records” relating to the Board‘s “implementation of” the program or activity to identify and remove noncitizens from the voter lists encompasses a broad range of disclosable documents, including completed voter applications. See Project Vote, 682 F.3d at 336.
This general principle articulated in Project Vote, however, does not require automatic disclosure of all categories of documents requested by the Foundation in the present case. As the district court observed, the essence of the records requested in the present case is distinct from the circumstances present in Project Vote. Unlike the request in that case, the Foundation‘s request necessarily implicates individuals who may have been or are currently under investigation for committing serious criminal offenses under
state and federal law for registering to vote or for voting in an election as a noncitizen.8 See
The record here shows that, at a minimum, the Board has disclosed to the United
There is a compelling governmental interest in protecting ongoing law enforcement investigations. See Wash. Post, 386 F.3d at 579; see also Doe, 962 F.3d at 142, 151-53. Accordingly, even though documents related to an ongoing investigation are not listed as
an exemption in the NVRA‘s disclosure provision, the district court nevertheless must consider in the present case whether and to what extent the documents at issue should be kept confidential based on those investigations.
Moreover, the information requested by the Foundation necessarily includes registrants who at one time were identified by the Board as potential noncitizens, but since have been confirmed to be United States citizens. If the identities of those registrants were disclosed to the public, those individuals who ultimately were absolved of criminal wrongdoing nevertheless would be placed at risk of “public brand[ing].” United States v. Briggs, 514 F.2d 794, 803 (5th Cir. 1975); see also Stern v. FBI, 737 F.2d 84, 91-92 (D.C. Cir. 1984) (“[I]ndividuals have a strong interest in not being associated unwarrantedly with alleged criminal activity.“); United States v. Smith, 123 F.3d 140, 148 (3d Cir. 1997) (explaining that grand jury secrecy ensures that “persons who are accused but exonerated by the grand jury will not be held up to public ridicule” (quoting Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 211, 219 (1979))).
This risk, however, does not render the requested documents affiliated with potential noncitizens immune from disclosure under the plain language of the NVRA. Instead, as we explained in Project Vote, a district court can order redaction of “uniquely sensitive information” in otherwise disclosable documents. 682 F.3d at 339. Here, because of the criminal exposure related to the Foundation‘s request, sensitive information would include the identities and personal information of those subject to criminal investigations, and those United States citizens who were once identified by the Board as “potentially” failing to satisfy the citizenship requirement but later were exonerated. It is possible that a registrant
could have been “flagged” by the Board as a potential noncitizen, simply for failing to correctly complete the citizen status “check box” on the voter registration application. Being improperly identified as a noncitizen for such an oversight could have long-standing personal and professional repercussions.
Instead of disclosing these individuals’ identities and subjecting them to potential embarrassment or harassment, the Board expressed at oral argument its willingness to devise a system of redaction to apply to requested voter registration applications and corresponding documents to the extent
We therefore conclude that the district court erred in holding that the Foundation failed to state a claim under the NVRA‘s disclosure provision simply because the request implicated potential criminal conduct of registrants. The disclosure provision does not contain such a blanket exemption and requires a more exacting and tailored analysis than what occurred in this case.
On remand, the district court must consider separately which documents and information are subject to protection based on their relationship to ongoing criminal investigations, and order redaction to protect exonerated potential noncitizens and their sensitive information.10 Should the Board devise a system of redaction as discussed above, the district court can review the individual documents and redactions to ensure that specific redactions correspond with materials protected from disclosure.
Additionally, we observe that because the district court dismissed the Foundation‘s complaint without permitting discovery, we cannot consider “every particular question that may arise with respect to the implementation” of the disclosure provision in this case. Project Vote, 682 F.3d at 340. As previously mentioned, the Foundation‘s request was wide-ranging and included the Board‘s correspondence and exchange with registrants, third parties, and state and federal agencies. We therefore agree with the Board that the Privacy Act, the Driver Protection Act, and any other statutory restrictions placed on the release of documents obtained through the SAVE system, may preclude the disclosure of documents obtained by the Board from the DMV and USCIS. We also observe that the MOA with USCIS, to the extent the MOA is consistent with the NVRA‘s disclosure provision, may bar disclosure of certain information from the SAVE system. However, without an understanding of the documents at issue, we cannot discern what type of
information the Board obtained from these agencies that may require confidentiality. On remand, the district court is required to evaluate which documents the Board possesses that are potentially subject to disclosure under the NVRA. Then it must evaluate which of those documents should be shielded from disclosure on the bases identified above. And, when the court determines that certain types of documents are subject to disclosure, the court must delineate any redaction protocols consistent with the NRVA necessary to protect sensitive information, including the names of those identified by the Board as potential noncitizens.
We therefore conclude that based on the extensive nature of the Foundation‘s request, the district court must examine in the first instance the types and kinds of information possessed by the Board that
III.
For these reasons, we vacate the district court‘s judgment dismissing the Foundation‘s complaint, and remand for further proceedings consistent with this opinion.
VACATED AND REMANDED WITH INSTRUCTIONS
Notes
The Foundation‘s requests, however, are broad enough that the audits may have contained some of the requested information. For example, the Foundation‘s letter to the county boards sought “[d]ocuments regarding all registrants who were identified as potentially not satisfying the citizenship requirements for registration” and “all documents that provide the name of the registrant, the voting history of such registrant, the nature and content of any notice sent to the registrant, the response (if any) of the registrant, and actions taken regarding the registrant‘s registration (if any) and the date of the action.” The complaint incorporates this request in its allegations that the Board violated the NVRA.
On remand, should the Foundation specifically press for disclosure of the 2013, 2014, or other audits in the district court, we leave it to that court to determine in the first instance whether the audits contain requested information and to what extent the privacy concerns at issue with the rest of the materials also apply to the contents of those audits.