United States District Court, D. Maryland
Lipton Hollander United States District Judge.
litigation involves a First Amendment challenge to Md. Code
(2017 Repl. Vol., 2017 Supp.), § 3-506 of the Election
Law Article (“E.L.”). Under this statute,
plaintiff Dennis Fusaro was denied access to a copy of
Maryland's list of registered voters (the
“List”) because he does not live in Maryland and
is not a Maryland registered voter. Fusaro sought such
information for the 2014 Maryland gubernatorial primary and
general election, and the 2016 presidential primary and
general election. ECF 1-3 at 2.
a resident and registered voter of Virginia, has filed a
complaint for declaratory and injunctive relief against a
host of defendants in their official capacity: Emmet Davitt,
the Maryland State Prosecutor; David McManus, Jr., Chair of
the Maryland State Board of Elections (the
“Board”); Patrick Hogan, Vice Chair of the Board;
and Board Members Michael Cogan, Kelley Howells, and Gloria
Lawlah. See ECF 1
(“Complaint”). Fusaro appended several exhibits
to his suit. See ECF 1-1 through ECF 1-4. As
discussed, infra, the litigation is rooted in
Davitt's unsuccessful prosecution of Fusaro in 2016 and
2017 for Maryland campaign violations. ECF 1.
Count I, Fusaro avers that E.L. § 3-506(a)(1) is
unconstitutional, both facially and as applied to him,
because it states that only a “ Maryland registered
voter” may obtain a “copy of a list of [Maryland]
registered voters . . . .” Therefore, it
“selectively advantages some political speakers and
disadvantages others.” Id. ¶ 30. Fusaro
contends that his “voice in Maryland politics may not
be selectively silenced simply because he is not a registered
voter” in Maryland. Id. ¶ 32.
Count II, Fusaro claims that E.L. §§
3-506(a)(1)(ii) and (c) create an unconstitutional
restriction on speech because § 3-506(a)(1)(ii) requires
that one who obtains the List cannot use it for “any .
. . purpose not related to the electoral process, ” and
E.L. § 3-506(c) provides: “A person who knowingly
allows a list of registered voters, under the person's
control, to be used for any purpose not related to the
electoral process is guilty of a misdemeanor . . .
.” He claims that the provision prohibits the
use of the List for “constitutionally-protected
political speech . . . .” Id. ¶ 36.
Moreover, he asserts that the content-based restrictions do
not survive strict scrutiny. Id. ¶ 37. In
addition, he alleges that the statutory phrase “related
to the electoral process” is unconstitutionally vague.
Id. ¶ 40. And, he alleges that E.L. §
3-506 “threatens Fusaro with prosecution for forbidden
uses of the registered voter list that cannot be readily
has also filed a Motion for Preliminary Injunction (ECF 17),
supported by a memorandum of law (ECF 17-1) (collectively,
the “PI Motion”). He asks the Court to enjoin
McManus, Hogan, Cogan, Howells, and Lawlah from enforcing
E.L. § 3-506(a)(1). See ECF 17 at 1. In
addition, Fusaro asks the Court to enjoin all defendants from
enforcing E.L. §§ 3-506(a)(1)(ii)(2) and (c).
have filed a consolidated Motion to Dismiss the Complaint
(“Motion” or “Motion to Dismiss”) and
Opposition to the PI Motion (ECF 20), supported by a
memorandum of law (ECF 20-1) and exhibits. See ECF
20-2 and ECF 20-3. Plaintiff filed a consolidated Opposition
to the Motion to Dismiss and Reply to the PI Motion (ECF 21),
supported by an exhibit. See ECF 21-1. Defendants
have replied as to the Motion to Dismiss. See ECF
hearing is necessary to resolve the motions. See
Local Rule 105.6. For the reasons that follow, I shall grant
the Motion to Dismiss as to Count I of the Complaint.
Therefore, I need not address the Motion with regard to Count
II. And, because plaintiff cannot demonstrate a reasonably
likelihood of success on the merits of his Complaint, I shall
deny the PI Motion.
Factual and Procedural Background 
Board oversees the administration of elections in Maryland,
including compliance with E.L. § 3-506. See ECF
20-1 at 11; ECF 1. Of relevance here, the Board must provide
reasonable access to “original voter registration
applications” and “other voter registration
records, ” E.L. § 3-505, without limitation to
registered voters or specific purposes. Moreover, under Code
of Maryland Regulations (“COMAR”) 33.04.01.03A,
“[a]ny person may request to inspect or copy a public
record that is in the custody and control of the State Board
or a local board [of election.]” Therefore, as the
defendants observe, some of these records “may contain
similar information to that found in the [L]ist.” ECF
20-1 at 12.
is the Maryland State Prosecutor, a position established by
Title 14 of the Criminal Procedure Article
(“C.P.”) of the Maryland Code (2008 Repl. Vol.,
2017 Supp.). As State Prosecutor, Davitt is empowered to
investigate and prosecute, inter alia, “a
criminal offense under the State election laws” and
“a violation of the State . . . perjury . . . laws
related to” those “election laws . . . .”
C.P. §§ 14-107(a)(1)(i), (a)(1)(v), 14-109(a). The
Office of the State Prosecutor is an independent unit within
the Office of the Attorney General. C.P. § 14-102(a)(2).
He is appointed by the Governor, with the advice and consent
of the Maryland Senate. C.P. § 14-102(c)(1).
noted, Fusaro is a resident and registered voter in Virginia.
ECF 1, ¶¶ 4, 9. But, he has “experience in
Maryland politics.” ECF 1, ¶ 16. In 2014, he
worked as “campaign manager and consultant” for
the successful campaign of Michael Peroutka, who was running
for a seat on the Anne Arundel County Council. See
ECF 1, ¶ 16; ECF 20-2 (Criminal Summons and Information
forms of Dennis Fusaro, District Court for Anne Arundel
County, dated April 13, 2016) at 5. In 2007 and 2008, Fusaro
was National Field Director for Ron Paul for President. ECF
1, ¶ 17.
Complaint, Fusaro recounts that “[o]n February 21,
2017, [he] was convicted in a bench trial” in the
District Court for Anne Arundel County “for failure to
include a campaign finance disclaimer on an automated phone
call that cost under $100 to facilitate. . . . He was
sentenced to 30 days in jail and a $1, 000 fine.” ECF
1, ¶ 1; see State of Maryland v. Fusaro,
D-07-CR-16-000734 (D. Ct. M2017). However, Fusaro noted a de
novo appeal to the Circuit Court for Anne Arundel County.
There, following a jury trial, he was acquitted on August 3,
2017. ECF 1, ¶ 1; see State of Maryland v.
Fusaro, C-02-CR-17-000351 (Cir. Ct. for Anne Arundel
Cty., Aug. 3, 2017).
trials followed a two-count Criminal Information (ECF 20-2 at
5-7), issued by Davitt on April 13, 2016 (ECF 20-2 at 4),
charging Fusaro with violations of Maryland election law.
Specifically, Fusaro was charged with willfully causing the
publication and distribution of campaign materials in Anne
Arundel County (the “County”) on October 31,
2014, in violation of E.L. §§ 13-602 and 13-401.
See ECF 20-2 at 5-6. Fusaro was also charged with
conspiracy to publish and distribute campaign materials in
the County, between October 8, 2014 and November 20, 2014, in
violation of E.L. §§ 13-602 and 13-401.
See ECF 20-2 at 7.
Count I, the Criminal Information alleged that Fusaro, as
Peroutka's campaign manager in 2014, caused the
dissemination of more than 5, 000 automated telephone calls
about Peroutka's opponent, Patrick Armstrong, without the
information required by E.L. § 13-401, such as the
identity of the person authorizing and paying for the calls.
Id. at 5-6. As to Count II, Fusaro was charged with
conspiracy to publish and distribute campaign material that
did not comply with the requirements of E.L. § 13-402,
because the automated telephone calls were alleged to falsely
identify the person or organization responsible for the
message. ECF 20-2 at 7.
State Prosecutor allegedly traced the telephone calls to a
prepaid cell phone that had been purchased by Fusaro.
See ECF 20-2 at 6. According to the Criminal
Information, the robotic telephone calls contained the
following message, id. at 5-6:
Hello, what a great opportunity for the LGBT community. We
have a true believer for our cause in Patrick Armstrong
who's running for County Council in Anne Arundel County,
Maryland. Call Patrick today and thank him for his bravery in
coming out of the closet. Coming out of the closet and
supporting the fairness to all Marylander's [sic] Act,
the Maryland State Senate Bill 212, and supporting the rights
for all transgenders. Transgenders can now openly and freely
go into any bathroom of their choice based on their confused
gender identity. Tell Patrick to continue to stand loud and
proud in support for transgenders' equal rights. While
our opponent argued that children could be at risk by sexual
predators with this new law, we celebrate the rights of
transgenders and what this does for equality for transgenders
in Maryland. Call him today at [phone number redacted] and
thank him for supporting the bathroom bill. Paid for and
authorized by Marylander's [sic] for Transgenders.
E.L. § 13-602(a)(9) states, id.: “A
person may not publish or distribute, or cause to be
published or distributed, campaign material that violates
§ 13-401 of this title.” E.L. § 13-401
requires, inter alia, that campaign materials
indicate the name and identity of the person or entity
responsible for publishing or distributing the campaign
materials. See E.L. §§ 13-401(a)(1),
(a)(2), (a)(3), (b).
August 24, 2017, some three weeks after Fusaro's
acquittal in the Circuit Court for Anne Arundel County,
Fusaro submitted an Application for Voter Registration Data
to the Board (ECF 1-2 at 2) (“Application”),
requesting that the List be placed on a compact disc
(“C.D.”) and mailed to Fusaro at his Virginia
Post Office address. Id.; see also Id. at 3
(photocopies of two money orders, in the total amount of
$128.00, to pay the required Application and C.D. fees). On
the Application, Fusaro indicated that he is a Virginia
resident. ECF 1-2 at 2.
Application contained an oath, providing, in part, ECF 1-2 at
2: “Under penalty of perjury, I hereby declare, as
required by Election Law Article, § 3-506, Annotated
Code of Maryland, that the list of registered
voters for which I am applying is not intended to be used for
commercial solicitation or for any other purpose not related
to the electoral process. . .
.” (Bold and italics in original). Fusaro signed the
submitted as an exhibit to the suit a returned copy of the
Application (ECF 1-3) (“Rejected Application”),
dated August 28, 2017, which bears the word
“REJECTED” and the initials “EWD.”
Email correspondence between Fusaro and Erin W. Dennis, a
Board employee, dated September 4, 2017 and September 6,
2017, indicates that the initials “EWD” on the
Rejected Application are those of Ms. Dennis. See
ECF 1-4 (emails between Fusaro and Ms. Dennis). In the email
exchange, 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.
explains that he wants the List in order “to share his
story with Maryland citizens” concerning his
prosecution and subsequent acquittal for the alleged
violations of Maryland campaign finance law. ECF 1, ¶ 2.
According to Fusaro, he wants to “express his
frustration with the Maryland State Prosecutor and encourage
Marylanders to echo his concern by encouraging Davitt to
resign.” Id. Therefore, Fusaro seeks to
communicate with Maryland citizens “via U.S. Mail with
letters addressed to certain Maryland registered voters,
drawing [names and contact information] from” the List.
Id. ¶ 3.
has submitted a copy of the document he seeks to mail to
certain Maryland registered voters. See ECF 1-1 (the
“Letter”). The Letter states, in part,
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
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.
Count I of the Complaint, Fusaro asserts that the Maryland
registered voter requirement in E.L. § 3-506(a)(1) is
unconstitutional under the First and Fourteenth Amendments.
ECF 1 at 6. He asserts that “[b]y limiting access to
the registered voter list to Maryland registered voters, E.L.
§ 3-506(a)(1) selectively advantages some political
speakers, ” i.e., Maryland registered voters,
“and disadvantages others, ” i.e., those
who are not Maryland registered voters. ECF 1, ¶ 30.
Although Fusaro acknowledges that he may acquire the same
voter registration information from Maryland through other
“means, ” he contends that those means are
“more time-consuming and expensive.” Id.
Count II, Fusaro alleges that “limiting the use of the
List of Registered Voters to purposes ‘related to the
electoral process' in E.L. §[§] 3-506(a)(1),
(c) is unconstitutional under the First and Fourteenth
Amendments.” ECF 1 at 7. In particular, because Davitt
is an appointed official, Fusaro claims that his proposed
Letter does not relate to the electoral process. ECF 1,
¶¶ 34, 35. Specifically, “Fusaro's letter
does not . . . call for Davitt's election or defeat . . .
.” ECF 1, ¶ 35. The Letter “has nothing to
do with an election” and is “not related to the
electoral process.” ECF 1, ¶¶ 5, 26.
Therefore, Fusaro fears prosecution under E.L. §§
3-506(a)(1)(ii) and (c). Id. ¶ 3.
to Fusaro, “limiting use of the voter list to purposes
‘related to the electoral process' is a
content-based restriction that prohibits the use of the
registered voter list for political speech that is entitled
to just as much protection as election-related speech.”
Id. ¶ 38. Further, he alleges that the
“law serves no ...