United States District Court, D. Maryland
JUDICIAL WATCH, INC. Plaintiff,
LINDA LAMONE, et al. Defendants.
Lipton Hollander United States District Judge
litigation concerns an organization's request under state
and federal law for access to the voter registration list for
Montgomery County, Maryland.
Judicial Watch, Inc. (“Judicial Watch”) has sued
a host of defendants, in their official capacities, including
Linda Lamone, the Maryland Administrator of Elections, to
compel compliance with Section 8(i)(1) of the National Voter
Registration Act of 1993 (“NVRA” or the
“Act”), codified, as amended, at 52 U.S.C. §
20507(i)(1). See ECF 1 (“Complaint”).
The remaining defendants include David McManus, Jr., the
Chairman of the Maryland State Board of Elections
(“SBE”); Patrick Hogan, the Vice-Chairman of the
SBE; Jared DeMarinis, the Public Information Act Officer and
Director of the Division of Candidacy and Campaign Finance
for SBE; and SBE Members Michael Cogan, Kelley Howells, and
Gloria Lawlah (collectively, the “State
addition, plaintiff sued James Shalleck, the President of the
Montgomery County Board of Elections (“MCBE”);
Nahid Khozeimeh, the Vice-President of the MCBE; Mary Ann
Keeffe, the Secretary of the MCBE; Alexander Vincent and
David Naimon, MCBE Members; and Jacqueline Phillips, an MCBE
Substitute Member (collectively, the “County
Defendants”). Id. However, on June 4, 2018,
the Court granted the County Defendants' motion to
dismiss (ECF 2), thereby dismissing them from the case. ECF
34; ECF 35.
discovery, plaintiff moved for summary judgment (ECF 43),
supported by a memorandum of law (ECF 43-1) (collectively,
the “Motion”) and exhibits. ECF 43-2 to ECF 43-6.
The defendants filed a cross motion for summary judgment (ECF
49), supported by a memorandum of law (ECF 49-1)
(collectively, the “Cross Motion”) and exhibits.
ECF 49-3 to ECF 49-10. Plaintiff filed an opposition to the
Cross Motion, along with four additional exhibits.
See ECF 52-1 through ECF 52-4. Defendants replied
(ECF 53) and submitted an additional exhibit. See
hearing is necessary to resolve the motions. See
Local Rules 105.6. For the reasons that follow, I shall GRANT
the Motion (ECF 43) in part and DENY it in part, and I shall
DENY the Cross-Motion (ECF 49).
Watch describes itself as a “not-for-profit,
educational organization” that is dedicated to
“promot[ing] transparency, integrity, and
accountability in government.” ECF 1, ¶ 5.
According to Judicial Watch, it “regularly requests
records from state and local governments pursuant to Section
8(i) of the NVRA, and state open-records laws . . . .”
Id. And, it “analyzes all responses and
disseminates both its findings and the requested records to
the American public to inform it about ‘what the
government is up to.'” Id. (citation
April 11, 2017, Thomas Fitton, President of Judicial Watch,
sent an email to Lamone, as well as the officers and members
of both the SBE and the MCBE. ECF 1, ¶ 11. The email
included a letter to McManus dated April 11, 2017.
See ECF 1-1 (“Notice Letter”). Hogan,
Cogan, Howells, Lawlah, Lamone, Shalleck, Khozeimeh, Keefe,
Vincent, Naimon, Popper, and Nikki Charlson, the Deputy State
Administrator of the SBE, were copied on the Notice Letter.
ECF 1-1 at 7. The Notice Letter, which is appended to
the suit (ECF 1-1), was also sent by certified mail to the
SBE and the MCBE. ECF 1, ¶ 11.
Notice Letter stated, in part, ECF 1-1 at 1-7 (emphasis
Dear Chairman McManus:
We write to bring your attention to violations of Section 8
of the National Voter Registration Act (“NVRA”)
in Montgomery County, Maryland. From public records obtained,
Montgomery County has more total registered voters than adult
citizens over the age of 18 as calculated by the U.S. Census
Bureau's 2011-2015 American Community Survey. This is
strong circumstantial evidence that Montgomery County is not
conducting reasonable voter registration record maintenance
as mandated under the NVRA.
This letter serves as statutory notice that Judicial Watch
will bring a lawsuit against your office if you do not take
specific actions to correct these violations of Section 8
within 90 days. In addition, by this letter we are asking you
to produce certain records to us which you are required to
make available under Section 8(i) of the NVRA.
You are receiving this letter because you are the designated
chief state election official under the NVRA.
In order to avoid litigation, we hope you will promptly
initiate efforts to comply with Section 8 so that no lawsuit
will be necessary. We ask you to please respond to this
letter in writing no later than 45 days from today informing
us of the compliance steps you are taking. Specifically, we
ask you to: (1) conduct or implement a systematic, uniform,
nondiscriminatory program to remove from the list of eligible
voters the names of persons who have become ineligible to
vote by reason of a change in residence; and (2) conduct or
implement additional routine measures to remove from the list
of eligible voters the names of persons who have become
ineligible to vote by reason of death, change in residence,
or a disqualifying criminal conviction, and [(3)]to remove
noncitizens who have registered to vote unlawfully.
[P]ursuant to your obligations under the NVRA, please make
available to us all pertinent records concerning “the
implementation of programs and activities conducted for the
purpose of ensuring the accuracy and currency” of
Maryland's official eligible voter lists during the past
2 years. Please include these records with your response to
this letter. These records should include, but are not
1. Copies of the most recent voter registration database
from Montgomery County, Maryland, including fields indicating
name, date of birth, home address, most recent voter
activity, and active or inactive status.
2. Copies of all email or other communications internal to
the office of the Maryland State Board of Elections,
including any of its divisions, bureaus, offices, third party
agents, or contractors, (hereinafter, collectively
“State Board of Elections”) relating to the
maintenance of accurate and current voter rolls.
3. Copies of all email or other communications between the
State Board of Elections and all Maryland County Voter
Registration Officials concerning:
a. Instructions to the counties concerning their general list
maintenance practices and obligations;
b. Instructions to the counties for the removal of specific
noncitizens and deceased, relocated, or convicted persons
identified by the State Board of Elections; and
c. Notices to the counties concerning any failure to comply
with their voter list maintenance obligations under
4. Copies of all email or other communications between the
State Board of Elections and the Maryland State Department of
Health, the Maryland State Department of Corrections, the
Maryland Motor Vehicle Administration, and the Maryland State
Judiciary concerning obtaining information about deceased,
relocated, convicted, or noncitizen registered voters for the
purpose of updating Maryland's voter registration lists.
5. Copies of all email or other communications between the
State Board of Elections and the U.S. Attorney(s) for
Maryland, the U.S. District Court for Maryland, the U.S.
Social Security Administration, the U.S. Postal Service, the
U.S. Citizenship and Immigration Services, and the U.S.
Department of Homeland Security concerning the National
Change of Address database, the Systematic Alien Verification
for Entitlements database, or any other means of obtaining
information about deceased, relocated, convicted, or
noncitizen registered voters for the purpose of updating
Maryland's voter registration lists.
6. Copies of all email or other communications between the
State Board of Elections and the Interstate Voter
Registration Cross-Check Program, the Electronic Registration
Information Center, the National Association for Public
Health Statistics and Information Systems, and any other U.S.
State concerning obtaining information about deceased or
relocated registered voters for the purpose of updating
Maryland's voter registration lists. . . .
SBE's Nikki Charlson sent an email to Judicial Watch on
May 26, 2017, indicating that the SBE had received the Notice
Letter. ECF 1, ¶ 18. Further, she stated that the SBE
would issue a response to Judicial Watch, and that the SBE
would provide Judicial Watch with the “requested
documents next week.” Id.
Watch received a letter from Lamone on June 5, 2017.
Id. ¶ 19; ECF 19-2.Lamone stated, inter
alia, that Maryland's voter list maintenance program
complies with the NVRA, that the SBE was compiling
“responsive” documents, and that the SBE would
provide those documents to Judicial Watch
“‘shortly.'” ECF 1, ¶¶ 19-20;
email dated July 7, 2017 (ECF 1-2), DeMarinis informed
plaintiff, id.: “The documents that you
requested from your April 11, 2017 letter are ready for
review. However, . . . the request for the Montgomery County
voter registration list was not made in accordance with
Election Law Article 3-506. Therefore, it will not be
processed.” ECF 1, ¶¶ 21-22; see Md.
Code (2017 Repl., 2018 Supp.), § 3-506(a) of the
Election Law Article (“E.L.”) (stating that upon
request “a list of registered voters shall be provided
to a Maryland registered voter”) (emphasis
11, 2017, Popper, as counsel for plaintiff, spoke by
telephone with DeMarinis. ECF 1, ¶ 24. During that call,
Popper noted that Judicial Watch is organized under D.C. law
and therefore it could not be “a Maryland registered
voter, ” as required by E.L. § 3-506(a)(1). ECF 1,
¶ 24. As a result, plaintiff could not obtain
the “requested voter list.” Id.
DeMarinis confirmed that the Maryland Attorney General's
office had so indicated. Id.
indicated, in Judicial Watch's Notice Letter, plaintiff
requested “[c]opies of the most recent voter
registration database.” ECF 1-1 at 5. Plaintiff has
since clarified that it is seeking the most recent voter
registration “list” for Montgomery County, rather
than the database. ECF 52 at 6 (“In light of what
Plaintiff learned in discovery, it probably would have been
more accurate in the April 2017 notice letter to request the
most recent voter registration ‘list' rather than
‘database.'”). As defendants put it,
“the record is now clear that the subject matter of
this case has only ever been the Voter List (and not a
Montgomery County database)[.]” ECF 49-1 at 26.
maintains and manages its voter registrations through
MDVOTERS (the “Database”), a statewide database
containing voter registration records for Maryland elections.
See ECF 43-3 (Deposition of Mary Cramer Wagner) at
6, p. 26:17-21; ECF 43-4 (Deposition of Janet Smith) at 13,
p. 71:11-21. Each voter registration is represented in
MDVOTERS by a separate entry, and each entry is composed of
three parts: voter data, images of transaction source
documents, and an activity log.
voter data consists of the voter's personal information,
as well as information on the voter's registration
status. The information about the voter is organized into
data fields or categories, each containing one piece of
information. The fields in MDVOTERS include name, date of
birth, and address. See ECF 43-4 at 13, p. 71:11-14;
ECF 49-8 (Decl. of Mary Cramer Wagner), ¶¶ 16-17.
Each entry also includes fields for “the
individual's current registration status, the reason for
the most recent change in status, and the source of the
change[.]” ECF 49-8, ¶ 7. Because each voter
registration contains many of the same fields, an official
can use the fields to search, sort, filter, or otherwise
access the data concerning the voters. Therefore, an official
could produce a list of Maryland voters in Montgomery County.
See ECF 49-1 at 38.
Cramer Wagner, the SBE's Director of the Voter
Registration and Petition Division, explained in her
Declaration that each registration contains images of
transaction source documents, “scanned documents
reflecting all voter registration transactions and certain
other transactions in the individual's history.”
ECF 49-8, ¶ 7. She stated, id. ¶ 8:
“When a person's record is updated as a result of a
voter registration or other transaction, any document
evidencing that transaction (e.g., voter registration
application), is scanned into the database and associated
with that record.” These documents are used to verify
the personal information used to populate or update the voter
data in the voter registration entry. See Id.
separate activity log is maintained for each voter. The
activity log tracks changes to the voter's data, such as
changes in voter registration. ECF 43-4 at 13, pp.
the State Board of Elections maintains MDVOTERS, local boards
of elections process most voter registration transactions on
a record-by-record basis within the Database. See
ECF 43-3 at 5, pp. 16:20-17:13; id. at 12-13, pp.
73:14-74:2. To assist the local boards, the SBE provides
training regarding proper list maintenance procedures,
circulates biweekly newsletters containing
registration-related information and updates, and publishes
guidance documents directing election officials on how to
process records that present certain scenarios. See
ECF 49-6 (Deposition of Janet Smith), at 10:11-12:5; ECF
49-8, ¶ 15.
boards of election also conduct audits of other local
boards' voter registration transactions. ECF 49-9 (Decl.
of Janet Smith), ¶ 6. To audit voter registration
transactions, a local election official pulls a subset of
individual voter registrations from the Database through a
search query. ECF 49-6 at 29:17-33:11. The local election
official then checks each transaction against the scanned
source document to ensure that it was processed properly.
See ECF 49-9, ¶ 4. State officials, such as
Maryland's Voter Registration Manager of Audits, Janet
Smith, also conduct audits of voter registration
transactions. See ECF 43-4 at 28:17-31:13; ECF 49-9,
Standard of Review
parties have moved for summary judgment under Fed.R.Civ.P.
56. Rule 56(a) provides, in part: “The court shall
grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986);
see also Iraq Middle Mkt. Dev. Found. v. Harmoosh,
848 F.3d 235, 238 (4th Cir. 2017) (“A court can grant
summary judgment only if, viewing the evidence in the light
most favorable to the non-moving party, the case presents no
genuine issues of material fact and the moving party
demonstrates entitlement to judgment as a matter of
law.”). The nonmoving party must demonstrate that there
are disputes of material fact so as to preclude the award of
summary judgment as a matter of law. Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
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);
Libertarian Party of Va. v. Judd, 718 F.3d 308, 313
(4th Cir. 2013).
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. Baltimore Ravens
Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003)
(alteration in Bouchat) (quoting former Fed.R.Civ.P.
56(e)), cert. denied, 541 U.S. 1042 (2004); see
also Celotex, 477 U.S. at 322-24. Moreover, in resolving
a summary judgment motion, a court must view all of the
facts, including reasonable inferences to be drawn from them,
in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co. Ltd., 475 U.S. at 587;
accord Hannah P. v. Coats, 916 F.3d 327, 336 (4th
Cir. 2019); Roland v. United States Citizenship &
Immigration Servs., 850 F.3d 625, 628 (4th Cir. 2017);
FDIC v. Cashion, 720 F.3d 169, 173 (4th Cir. 2013).
However, summary judgment is appropriate if the evidence
“is so one-sided that one party must prevail as ...