RICHMOND, Va. (CN) — The Fourth Circuit seemed unlikely Thursday to side with a conservative legal group in its effort to get sensitive voting records from North Carolina, based on claims that the state has not properly maintained its rolls.
Public Interest Legal Foundation, an Indiana-based nonprofit whose president was a member of President Donald Trump’s failed voter fraud commission, sued the North Carolina State Board of Elections and its Executive Director Karen Brinson Bell last year in an attempt to get voter data it argues should be released under the National Voting Rights Act of 1993.
While the federal law was designed to bring transparency and consistency to each state’s voter registration system, a federal judge last year rejected PILF’s request for documents such as birth certificates and passports used to apply to vote. U.S. District Judge Terrence W. Boyle, a Ronald Reagan appointee, found the information is “uniquely sensitive and vulnerable to abuse.”
But in a remote Fourth Circuit hearing Thursday morning, PILF board member and litigator William E. Davis, from the Milwaukee-based firm of Foley & Lardner, said the lower court was wrong to dismiss the complaint.
“Citizenship verification clearly falls within the definition of the statute and the documents in question would be whatever was received by the agency which helped make the determination as to citizenship,” Davis told the three-judge panel.
“What we got was the trial judge making this exemption which had no limiting principal whatsoever and was subjective,” he added. “We don’t know what we don’t know.”
But U.S. Circuit Judge Barbara Keenan, a Barack Obama appointee, expressed an inverse concern for the group’s effort.
“It seems like your request has no limiting principal,” she said. “It seems you just want everything you want.”
Davis pointed to the 2012 decision in Project Vote v. Long, in which the Fourth Circuit denied access to some private voter information but failed to address the release of documents explaining the process by which voter rolls are purged due to lack of citizenship.
“There are determinations of noncitizenship and voters removed from the rolls,” the attorney said. “We’re looking for underlying documents related to those removals.”
But Chief U.S. Circuit Judge Roger Gregory, a Bill Clinton appointee, pushed back and asked for specifics as it relates to the North Carolina dispute.
“You want to know why they are not citizens? That’s under the statute, right?” the judge asked. “You were not born a citizen, or you haven’t gone through the naturalization process yet.”
“There could be any number of reasons why someone was removed,” Davis responded. “These documents all fall within the gambit of what’s discoverable under the statute.”
Ryan Park, solicitor general for the North Carolina Department of Justice who argued on behalf of the state’s elections board, was greeted with a warmer response from the panel, but faced some resistance from the sole Republican nominee, who otherwise seemed similarly skeptical of PILF’s case.
“We don’t know what any of these documents that the foundation is requesting are,” said U.S. Circuit Judge Stephen Agee, a George W. Bush appointee, who stressed the incomplete record was the biggest issue before the panel. “If we had a list that would make this determination easier.”
Park said Agee’s assessment was incorrect and the elections board had provided many of the documents the group sought, but records that specified names, especially of those who are under criminal investigation, would violate the federal law PILF is relying on.
“We could give a copy of every single letter informing people of their removal from the rolls and redact them, but there have been no documents that would not provide the names of people identified,” he said.
While the panel seemed more sympathetic to the state’s argument, both Keenan and Agee discussed the possibility of remanding the case for discovery with heavy redactions.
“We’ve got a situation where some info could be disclosed, as long as identifiers are protected,” Keenan opined. “Could we give the district court that job?”
“Yes,” Davis responded. “We don’t know what we don’t know here ‘cause we didn’t get that far.”
The judges did not signal when they intend to issue an opinion.
PILF’s work collecting voter data has been the subject of recent criticism. While it’s one of several conservative legal groups aiming to shine a light on rolls, those efforts have often been fodder for conservative media outlets fueling conspiracy theories.
Last summer the group entered into a settlement with several Virginia voters after a report they developed, using similar data as that requested from North Carolina, led to harassment severe enough that the courts had to intervene.
The dispute ended with PILF having to apologize to those they falsely accused of being noncitizens who illegally registered to vote and cast illegal ballots. It also agreed to remove documents which reference to 5,000 individual voters and “commit to never again publish or disseminate those exhibits” again.
The Brennan Center for Justice has also kept its eyes on PILF’s work after getting involved in a Michigan case where the right-wing group withdrew its claim that officials weren’t purging voters aggressively enough.
“When pressed for evidence to support their allegations, PILF withdrew its case rather than try to prove it,” wrote Eliza Sweren-Becker, counsel in the Brennan Center’s Voting Rights and Elections Program, in a statement following that voluntary dismissal this past summer. “It’s shameful that PILF made the city of Detroit spend time and money to defend against a case that should never have been brought in the first place.”
Jeff Loperfido, an attorney with the Southern Coalition for Social Justice, authored an amicus brief in support of North Carolina, citing PILF’s Virginia report as an example of the group abusing the data access it was given.
He said the National Voting Rights Act was “was enacted to enhance voter participation.”
“It’s not supposed to be used for purposes of suppressing the vote,” he added. “It’s supposed to provide accountability and sunshine to the processes that might discourage certain voters from voting.”