11th Circuit asked to order disclosure of felons purged from Alabama voter rolls

(CN) — Does the Alabama secretary of state have a duty to grant the request of a nonprofit for an electronic list including the names of all convicted felons who have been purged from voter rolls over a four-year period?

Despite an order from a federal judge this year to fulfill the request, attorneys representing the secretary told an 11th Circuit panel on Monday the request falls outside the scope of the National Voter Registration Act. 

After Greater Birmingham Ministries requested the list in 2022, the secretary of state refused, claiming it was only obligated to provide lists of eligible and ineligible voters, regardless of why they were disqualified. Furthermore, the state has “a long-standing practice” of charging a fee of one cent per name for production of the lists. 

If an individual or entity were to request the entire list of more than 3.75 million eligible voters, for example, the secretary of state’s office would charge somewhere in the neighborhood of $37,500. Greater Birmingham Ministries, whose mission includes restoring the right to vote for the formerly incarcerated, only wanted information pertaining to felony removals, not that of people who had been removed from the rolls because of relocation or suggestion of death.  

The purged list contained the names of 135,074 individuals, for a cost of $1,350.74, but the group asked the secretary’s office to narrow its scope and waive the fee, while also providing an electronic copy of the list rather than photocopies. The secretary refused, but did offer the organization a “public inspection” of the documents. In that scenario, a representative of the organization would have been permitted to review the documents in-person under the watchful eye of an elections representative, but they would be banned from taking verbatim notes or copying the list. 

The secretary argued the National Voter Registration Act requires his office only to “maintain” certain records and make them available for “public inspection” and “where available, photocopying at a reasonable cost.” 

“Nothing in the statute requires the secretary to create or provide electronic records to anyone,” the secretary said in an appellate brief.

But in an order in October 2022, U.S. District Court Judge Myron Thompson, a Jimmy Carter appointee, disagreed. Noting a deadline for voter registration was approaching, Thompson ordered the “immediate” release of the data but also said he was “concerned” about the secretary’s motivations for denying the request.

“The court is hard-pressed to furnish a reason why he would refrain from sending the records to GBM in digital form except to frustrate the aims of the public-inspection provision by making it more difficult and costly for GBM to access the records to which it is entitled,” Thompson wrote. “Use of these alternative methods would further delay provision of the records GBM seeks.”

Afterward, the secretary did offer to provide the records for a total cost of $429.17 for “staff time,” but the organization declined and the state appealed. 

Representing the secretary, Assistant Attorney General Benjamin Seiss told the appellate panel Monday that Thompson’s decision amounts to a “judicial rewrite” of the voter registration law, because it only speaks to two methods of disclosure: public inspection and photocopying. Additional guidance from the Federal Elections Commission and the Alabama Legislature does little to advance the organization's request, he said. 

“State law requires the secretary to make the list of active and inactive voters available to the general public, but it doesn't require a list of those purged from the voting rolls or those removed due to a disqualifying felony conviction,” he said. “There isn't an allegation that the secretary failed to provide public inspection or photocopying here, we're talking about a third method that's not required under the NVRA.”

The panel — which included U.S Circuit Judge Britt C. Grant, a Donald Trump appointee, Senior U.S. Circuit Judge Judge Frank M. Hull, a Bill Clinton appointee, and U.S. Circuit Judge Nancy G. Abudu who joined the court in May after an appointment from President Biden — pressed Seiss specifically about the language in Section 8 of the act. 

Although it only provides for public inspection and photocopying, Seiss acknowledged it contains no prohibition against electronic records. The judges seized on another section regarding list maintenance, asking whether the secretary has a duty to disclose purges of convicted felons as part of the “implementation of programs and activities” for maintaining the rolls. 

Seiss acknowledged the secretary does and has exercised discretion with whom the felon list is shared, but not with any statutory authority. 

“That’s his prerogative,” Seiss said.  

Representing Greater Birmingham Ministries, Danielle Lang argued the state “erected a series of obstacles to frustrate and evade the plain meaning” of the act's disclosure provision. 

“The state asks you to engage in a series of atextual statutory gymnastics to drastically limit the reach of a broad public disclosure provision that is aimed at allowing the public to individually independently scrutinize a state's voter registration practices,” she said, adding the term “public inspection” should not be limited to a supervised, in-person review of all 3.7 million names on the list. 

The judges noted the information is stored and maintained electronically and asked Lang to assume why the secretary would not simply convert that data for public scrutiny. 

“If you look at the state's policy, it seems like it's tailor made to ensure that the public is not actually scrutinizing the records,” she said, adding the only reason given by the state in discovery was to “maintain the fee structure for providing the records.”

Lang noted Alabama has some of the highest fees for voting records anywhere in the nation. 

The Department of Justice filed an amicus brief in support of Greater Birmingham Ministries in March 2023. On Monday, Assistant U.S. Attorney Noah Bokat-Lindell said the primary issue is whether the lower court abused its discretion, but if not, “there was a violation of the public inspection provision under the facts of this case.”

“We think that the states do have flexibility in implementing public inspection requirements,” he said. 

All told, 16,368 disenfranchised felons had been removed from the voter list sought by the nonprofit, and 7,695 disenfranchised felons had been denied registration.

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