Voter List Access, Maine Privacy Law Clash at First Circuit

Maine’s privacy law protecting voters’ personal information is in question after a panel of First Circuit judges suggested a conservative election law firm has standing to sue the secretary of state.

The Public Interest Legal Foundation is suing Maine over its law preventing people who obtain personal information from its central voter registration system from republishing it online. The firm says that information is crucial to its work monitoring states’ compliance with voter list laws and analyzing registration data.

Maine’s registration system contains the names, addresses, birth years, and voting history for the state’s 1.1 million registered voters. The state says its privacy law is essential to protect voters from having their confidential information distributed by organizations accusing them of committing voter fraud.

Although the state told the First Circuit at Thursday’s oral argument that it would not enforce the statute against the law firm or another organization for its use of the voter list, “Statements by state officials that they’re not going to enforce a statute are not enough to eliminate standing,” Judge Julie Rikelman said.

“The issue is that that interpretation is not binding on a future administration. Tomorrow, the secretary of state or the attorney general could say we’re going to do it another way,” Judge Gustavo Gelpí said.

Federal Preemption?

Public Interest Legal Foundation argues the voter roll is implicated by the National Voter Registration Act’s public disclosure provision, which subjects records related to voter list maintenance to public inspection. The federal law overrides Maine’s privacy law under the Elections Clause of the US Constitution, which gives Congress the authority to supersede state regulations, the firm said.

The restrictions in Maine’s privacy law “pose obstacles to the accomplishment and execution of Congress’s purposes under the NVRA,” which include protecting the integrity of elections and ensuring that voter rolls are accurate, the firm said in a brief.

“Maine is thwarting Congress’ objectives and punishing and silencing its critics,” said Noel Johnson, litigation counsel for Public Interest Legal Foundation.

The state claims the file isn’t bound to the disclosure rule because it has nothing to do with the regular maintenance of the list the state conducts to ensure its accuracy—an activity which would be covered by the NVRA.

Maine also argued that the firm does not have standing to sue based on “a chance that some years in the future” a state official might choose to enforce the statute, said Jonathan Bolton, an assistant attorney general for Maine.

Without the privacy law, anyone “would be free to obtain and post the entirety of Maine’s Voter File to the Internet, allowing anyone from criminals to advertisers to foreign governments to look up the personal information and voting participation history of any Maine voter,” the office of Secretary of State Shenna Bellows (D) said in a brief.

The Justice Department wrote an amicus brief arguing that Maine is required to disclose the voter file. The department also urged the First Circuit to let Maine’s Supreme Judicial Court weigh in on the privacy law’s scope.

The case is Pub. Interest Legal Found. v. Bellows, 1st Cir., No. 23-01361, oral argument 10/5/23.